Petition for Writ of Certiorari — Estelle v. McGuire
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IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1990
WAYNE ESTELLE, WARDEN
Petitioner,
V.
MARK OWEN McGUIRE
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN K. VAN DE KAMP
A General
CHARD B. IGLEHART
ief Assistant rney General
OHN H. SUGIYAMA
Senior Assistant Attorney General
MORRIS BEATUS
Supervising Deputy Attorney General
DANE R. GILLETTE
Deputy Attorney General
[Attorney of Record]
455 Golden Gate Ave., Room 6200
San Francisco, California 94102
Telephone: (415) 557-1475
Attorneys for Petitioner
QUESTION PRESENTED
Whether the Ninth Circuit improperly expanded
its habeas corpus jurisdiction and found a due process
violation by interpreting state law and reversing an
evidentiary ruling which the state courts held to be correct
as a matter of state law.
OPINIONS BELOW
JURISDICTION
STATUTORY PROVISION INVOLVED
STATEMENT
A. Factual Background
B. Procedural History
REASONS FOR GRANTING THE PETITION
CONCLUSION
é
oo sn Be BY NN NY WS
18
Cases
Blair v. Mi
881 F.2d 602 (9th Cir. 1989)
™ 1 lias
pe, tie .
T10 S.Ct. 1441 (1990)
Cupp v. Naughten
414 U.S. 141 (1973)
—_ We
110 S.Ct. 668 (1990)
Engle v. Isaac
456 U.S. 107 (1982)
Harris v. Reed
489 U.S. 255 (1989)
Henderson v. Kibbe
431 U.S. 145 (1977)
Huddleston v. United States
485 U.S. 681 (1988)
Landeros v. Flood
17 Cal.3d 399
131 Cal.Rptr. 69 (1976)
Lewis v. Jeffers
_—_ we
110 S.Ct. 3092 (1990)
11
11, 13
15
13, 14
14
11
14
13, 14
12
11, 13
TIO S.Ct. 3157 (1990)
McGuire v. Estelle
873 F.2d 1323 (9th Cir. 1989)
McGuire v. Estelle
902 F.2d 749 (9th Cir. 1990)
Milton v. Wainwright
407 US. 371 (1972)
Mons v.
461 U.S. 1 (1983)
New York v. Ferber
458 US. 747 (1982)
People v. Jackson
18 Cal.App.3d 504
95 Cal.Rptr. 919 (1971)
People v. Steger
16 Cal.3d 539
128 Cal.Rptr. 161 (1976)
TiO S.Ct. 2822 (1990)
Smith v. Phillips
455 U.S. 209 (1982)
Teague v. Lane
489 U.S. 288 (1989)
9, 12
12
11
13, 14
11
iv.
Table of Authorities, cont’d
United States v. Augenblick
393 U.S. 348 (1969)
United States v. Boise
916 F.2d 497 (9th Cir. 1990)
United States v. Bowers
660 F.2d 527 (Sth Cir. Unit B 1981)
United States v. Hadley
___ F.2d ___ (9th Cir. 1990)
United States v. Harris
661 F.2d 138 (10th Cir. 1981)
United States v. Leight
818 F.2d 1297 (7th Cir. 1987)
United States v. Woods
484 F.2d 127 (4th Cir. 1973)
Wainwright v. Goode
464 U.S. 78 (1983)
Constitutional Provisions
United States Constitution
Fourteenth Amendment
Page
13
10, 14, 16
16
13
16
9, 17
16
11
14
Statutes
28 U.S.C.
§ 1254(1)
§ 2101(c)
§ 2254
California Penal Code
§ 187
Other Authorities
Federal Rules of Evidence
rule 401
rule 404
Supreme Court Rules
rule 13.1
rule 13.4
Chicago Tribune
(May 20, 1990) p. 1
Los Angeles Times (November 14, 1990)
p. 1A, column 2
The National Center on Child Abuse
Prevention Research
Current Trends in Child Abuse Reporting and
Fatalities: The Results of the 1989 Annual Fifty
State Survey
p. 14 (March 1990)
2, 10
8, 13
16
16
16
No.
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1990
WAYNE ESTELLE, WARDEN
Petitioner,
v.
MARK OWEN McGUIRE
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The petitioner respectfully prays that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Ninth Circuit, filed May 4,
1990.
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Ninth Circuit is reported at 902 F.2d 749
(1990). A copy of the opinion is attached to this petition
as Appendix A. An earlier opinion, reported at 873 F.2d
1323 (1989), was filed on May 8, 1989, and withdrawn on
2.
Aprii 23, 1990. A copy of that opinion is attached as
Appendix B. The order of the District Court denying the
petition for writ of habeas corpus was not reported. It
appears at Appendix C.
JURISDICTION
The judgment of the Court of Appeals for the
Ninth Circuit was entered on May 4, 1990. Rehearing and
rehearing en banc were denied, with two circuit judges
dissenting, on November 23, 1990. That order, along with
the dissenting opinion, is attached as Appendix D. This
petition for writ of certiorari follows within 90 days.
28 U.S.C. § 2101(c); Supreme Court Rules 13.1, 13.4.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
STATUTORY PROVISION INVOLVED
Title 28, section 2254 provides in pertinent part:
"(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for
a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
STATEMENT
A. Factual Background
Respondent, Mark McGuire, was convicted in
Alameda County Superior Court on one count of second
degree murder, a violation of California Penal Code
section 187. He was sentenced on May 12, 1982, to state
prison for the statutory term of fifteen years to life.
Respondent and his wife, Daisy, brought Tori
Aurora McGuire, their six-month old child, to the
emergency room on July 7, 1981. She was bluish in color,
not breathing, and had bruises on her body. Respondent
told the emergency room nurse that Tori had recently had
a cold and had hit her head that morning falling off a
couch.
While the doctors were treating Tori, Daisy and
respondent waited near the emergency room screening
area. Daisy asked him what had happened. Respondent
replied that he was upstairs and "guessed" that Tori had
fallen off the couch. Daisy continued to ask what had
really happened, but received the same answer. She
reminded respondent that Tori was all right when Daisy
left the house and insisted that he was responsible for the
child’s situation. This conversation was overheard by
another woman in the waiting room who testified at the
trial.
When Tori reached the emergency room she was
lifeless. She had a large recent bruise on her upper left
chest with multiple bruises around it. She also had marks
on her ears and scar tissue indicative of a tearing wound
4.
~ to the rectum. The child died about forty-five minutes
after arriving at the hospital.
An autopsy revealed at least seventeen contusions
on Tori’s chest and twenty-nine more to her abdominal
area. They were fresh and indicated a blow from a hand.
A number of internal organs were lacerated or torn. Only
the application of a great deal of blunt force could have
caused the injuries. An x-ray examination revealed several
partially healed rib fractures.
The emergency room physician who treated Tori
and the pathologist both concluded that she was a
battered child. They agreed a fall from a couch could
have caused none of her injuries, even if she struck an
object in the process.
The police investigated these unexplained injuries.
During a brief interview at the hospital, respondent said
that he put Tori on the couch and then went upstairs. He
heard her crying and when he came back, found Tori lying
on the floor. He thought that she might have fallen and
struck the walker.
An officer later accompanied respondent and
Daisy to their apartment. The officer had seen the
bruises on the victim and noted that it was a sixteen inch
drop from the couch to the carpeted floor. When he
commented that he did not think Tori’s injuries were
consistent with a fall from the couch, respondent suggested
that "maybe some Mexicans came ip" while he was
upstairs.
In a taped statement made at the police station
the next afternoon, respondent admitted that only he and
Daisy had custody of the child on the day she died. He
claimed Tori was sick, but denied that she had any trouble
5.
breathing. Daisy left to make a telephone call about
9:00 p.m. McGuire put Tori on the couch and went
upstairs. He heard the baby crying and found her lying
on the floor. Respondent took Tori upstairs and put her
in bed. When Daisy returned she noticed that Tori was
pale and having trouble breathing. Respondent thought
her stomach was hurting so they took Tori to the hospital.
Respondent denied hitting the child.
Daisy McGuire was granted immunity from
prosecution. She testified that she hit Tori during the day
while respondent was out; she was mad because the baby
had cried all day. In her statement to the police,
however, Daisy denied striking the child and offered no
such testimony at the preliminary examination. Her
testimony about when she injured Tori was inconsistent
with the medical evidence and the time of death.
Since his arrest Daisy had spoken with respondent
a number of times about Tori’s death. She had discussed
her earlier statement with the public defender who
represented her husband, but refused to meet with the
district attorney unless her own lawyer was present.
Another resident of the McGuires’ apartment
complex once saw respondent holding Daisy against the
wall with his knee in her stomach and choking her as she
tried to escape. On another occasion Daisy told the
woman that respondent had hit her across the face. The
woman also saw respondent feeding Tori. He roughly
pinched the baby’s cheeks and forced food into her
mouth; marks appeared on Tori’s face. Daisy told the
woman that she was afraid to leave Tori with respondent
because he "pinched her cheeks and did bad things." That
6.
same day the woman saw marks on Tori’s thighs, buttocks,
and face.
A few days before the killing, Daisy and Tori
stayed with some friends on Treasure Island. She spoke
about going to a battered women’s shelter and expressed
concern that respondent might obtain custody of their
child in a divorce action. She complained about
respondent’s treatment of Tori.
In its instructions to the jury, the trial court
limited consideration of the other assaultive behavior and
of Tori’s earlier injuries as follows:
Evidence has been introduced for
the purpose of showing that the
Defendant committed acts similar to those
constituting a crime other than that for
which he is on trial. Such evidence if
believed, was not received, and may not
be considered by you to prove that he is
a person of bad character or that he has
a disposition to commit crimes. Such
evidence was received and may be
considered by you only for the limited
purpose of determining if it tends to show
three things:
1. The impeachment of Daisy
McGuire’s testimony that she had no
cause to be afraid of the Defendant,
2. To establish the battered child
syndrome, and
3. Also a clear connection
between the other two offense{s] and the
one of which the Defendant is accused, so
7.
that it may be logically concluded that if
the Defendant committed other offenses,
he also committed the crime charged in
this case.
B. Procedural History
Respondent’s conviction for second degree murder
was affirmed by the California Court of Appeal on
January 15, 1985. A copy of the opinion is attached as
Appendix E. The California Supreme Court denied
hearing on March 21, 1985.
Respondent’s second petition for writ of habeas
corpus was filed in the United States District Court for
the Northern District of California on August 30, 1985.4/
The district court denied the petition in an unpublished,
written opinion filed on July 15, 1987. It found that the
evidence of Tori’s prior injuries was properly admitted
under state law, and that no federal constitutional rights
were violated by the evidence or the instructions in
respondent’s trial. See, Appendix C, at A-31 to A-36.
The district court granted a certificate of probable cause
to appeal on August 10, 1987.
The Ninth Circuit’s first opinion was filed on
May 8, 1989. McGuire v. Estelle, 873 F.2d 1323 (9th Cir.
1989). The court found that admission of evidence about
Tori’s prior injuries and the diagnosis of battered child
syndrome was improper because it was not relevant to any
1. An earlier, otherwise identical petition, was denied without
prejudice on April 24, 1985, for failure to allege that state remedies
had been exhausted.
8.
disputed issue in the case. The prejudice to respondent
was, according to the Ninth Circuit, exacerbated by the
limiting instruction on the jury’s consideration of that
evidence. The court also criticized the state’s grant of
immunity to Daisy McGuire and suggested that the local
authorities consider whether she fraudulently negotiated
the immunity and if so whether it should be withdrawn.
The Ninth Circuit vacated its first opinion on
April 23, 1990, and filed a second opinion on May 4,
1990. McGuire v. Estelle, 902 F.2d 749 (9th Cir. 1990).
The court again found that it was error to admit the prior
injury evidence, relying in part on Federal Rules of
Evidence 401 and 404. In its view, the evidence of Tori’s
injuries and the diagnosis of battered child syndrome were
admitted in violation of state law and were irrelevant
under the federal rules. The court also found that the
limiting instruction allowed the jury to consider the other
injuries as evidence of guilt, a use it found to be improper
under the Federal Rules of Evidence. Although it no
longer questioned the grant of immunity, the court
concluded that "only the barest threads connect McGuire
to the crime." 902 F.2d at 755. According to the Ninth
Circuit, the evidence in the case established “mere
shadows of guilt which leave ample room for reasonable
doubt." IJd., at 756.
Rehearing and rehearing en banc were denied,
but two circuit judges dissented from denial of en banc
consideration. In their opinion, the panel improperly
second-guessed the state courts’ interpretation of state law
and reversed without adequate demonstration of a federal
constitutional violation. The judges also concluded that
the panel’s harmless error analysis was incomplete and
9.
inadequate, and found the prosecution’s case was "very
strong indeed." Appendix D, at A-55. Finally, the dissent
expressed concern that the decision could have a
substantial, negative effect on the abililty of state officials
to prosecute in cases of child abuse homicide.
Appendix D (Kozinski, J. and Trott, J., dissenting).
This Court has repeatedly reminded lower federal
courts of the limited nature of review over state court
judgments in habeas corpus actions. The Ninth Circuit’s
decision in this case reflects precisely the opposite view by
ignoring the state’s interpretation of its own law and
relying upon the Federal Rules of Evidence as a basis for
reversing a state conviction.
In its opinion affirming respondent’s murder
conviction, the California Court of Appeal noted that
evidence of prior injuires has long been admissible under
state law to support a diagnosis of battered child
syndrome, which indicates simply that the child did not
suffer her injuries by accidental means. See Appendix E,
at A-64 to A-66. People v. Jackson, 18 Cal.App.3d 504,
507, 95 Cal.Rptr. 919, 921 (1971). Child abuse
prosecutions “pose unique problems of proof" and are
“commonly built upon circumstantial evidence showing a
pattern of repeated injuries suggesting child abuse."
United States v. Leight, 818 F.2d 1297, 1300-1301 (7th Cir.
1987). As a result, such cases demand "an even wider
discretion than usual in admitting what is conceded to be
extremely prejudicial evidence." /d., at 1304. The Ninth
Circuit itself recently acknowledged the importance of
10.
battered child evidence in affirming a second degree
murder conviction under federal law. United States v.
Boise, 916 F.2d 497 (9th Cir. 1990).
Despite the admissibility of evidence about Tori’s
prior injuries under state law, and the acceptance of such
evidence in federal prosecutions, the Ninth Circuit
concluded that the evidence was improper in respondent's
state court murder trial because respondent was not
expressly connected to the infliction of those injuries. It
thus concluded that the evidence was admitted “for no
other purpose" than to demonstrate that respondent was
a child abuser. The court also found that admission of
the evidence was improper under state law because
accidental death was not an issue in the case. 902 F.2d
at 754. Having determined that the evidence was
irrelevant, the Ninth Circuit then reviewed the instruction
limiting its use by the jury. It held, apparently as a
matter of constitutional law, that the instruction incorrectly
informed the jury that it could "find McGuire guilty of the
offense charged if it logically concluded that he committed
the other earlier offenses." Jd., at 755. In doing s>, ihe
Ninth Circuit expanded the grounds for federal habeas
corpus review by transforming a state’s interpretation of
its own rules of evidence into a means of federal review
of a presumptively valid state judgment.
The Ninth Circuit’s decision is at odds with the
purpose of 28 U.S.C. § 2254. "The writ of habeas corpus
has limited scope; the federal courts do not sit to re-try
state cases de novo but, rather, to review for violation of
federal constitutional standards." Milton v. Wainwright,
407 U.S. 371, 377 (1972). “It is axiomatic that federal
courts may intervene in the state judicial process only to
11.
correct wrongs of a constitutional dimension."
Wainwright v. Goode, 464 U.S. 78, 83 (1983). The Court
has emphasized that the scope of habeas corpus is limited
by “interests of comity and finality." Teague v. Lane,
489 U.S. 288, 308 (1989); see also, Harris v. Reed, 489 U.S.
255 (1989).
Last term the Court reaffirmed that “federal
habeas corpus relief does not lie for errors of state law."
The federal court must respect a state court’s findings of
fact and application of its own law, rather than engage in
de novo review. Lewis v. Jeffers, US. __, 110 S.Ct.
3092, 3102 (1990). It may not “peer majestically over the
[state] court’s shoulder” in order to second-guess the
state’s interpretation of the facts. Jd. "State courts are
coequal parts of our national judicial system and give
serious attention to their responsibilities for enforcing the
commands of the Constitution." Sawyer v. Smith, _ US.
__, 110 S.Ct. 2822, 2831 (1990). Thus, a federal court
has no basis for disputing the state’s interpretation of its
own law. Clemons v. Mississippi, __ U.S. __, 110 S.Ct.
1441, 1447 (1990). Unfortunately, in "its haste to create
a novel" due process right, Morris v. Slappy, 461 U.S. 1, 16
(1983), the Ninth Circuit disregarded these limitations and
once again improperly expanded the basis for habeas
corpus relief by finding that admission of evidence about
prior injuries suffered by the victim violated state law.2/
epee ee Em Ge Sun Gam enna @ aaite
the Ninth Circuit had unduly expanded its habeas corpus
jurisdiction by finding a violation of state law
defendant. Blair v. McCarthy, 881 F.2d 602 (9th Cir. 1989),
granted, __-—s«OuXU' SS. ___,, 111 S.Ct. 39 (1990), vacated as moot
remanded, _ U.S. ___, 59 U.S.L.W. 3339 (November 5, 1990).
12.
The evidence of Tori’s prior injuries was admitted
under well-established state law permitting such evidence.
See, eg., Landeros v. Flood, 17 Cal.3d 399, 409,
131 Cal. Rptr. 69, 73 (1976); People v. Steger, 16 Cal.3d
539, 549, n. 4, 128 Cal.Rptr. 161, 164, n. 4 (1976);
People v. Jackson, supra; see also, opinion of the California
Court of Appeal, Appendix E, at A-64 to A-66. The
Ninth Circuit, relying on the same cases cited by the state
court, nevertheless found that the battered child evidence
was only admissible in California to prove that the injuries
did not occur by accident. Because, according to the
court, respondent did not claim that Tori’s death was
accidental, the evidence of prior injuries was irrelevant
and incorrectly admitted. 902 F.2d at 754. Apart from
the imappropriateness of correcting state courts on
questions of the admissibility of evidence under state law,
the holding has serious implications for prosecutors
throughout the Ninth Circuit.
If the Ninth Circuit’s opinion is allowed to stand,
whenever a defendant has not specifically contested an
element of the offense, admitting evidence which is
relevant only to that element could result in reversal on
federal habeas corpus. On the other hand, failure to
introduce the evidence could result in a directed verdict of
acquittal. It is, as the dissent from denial of rehearing en
banc notes, an insoluable “Catch-22" for the proseuctor.
See, Appendix D, A-50 to A-52. The creation of this
dilemma is particularly inappropriate since federal courts
concerns about inappropriate reliance upon state law as a basis for
granting federal habeas corpus relief which were at issue in Blam are
just as clearly presented by this case.
13.
have “no supervisory authority over state judicial
proceedings." Smith v. Phillips, 455 U.S. 209, 221 (1982).
The Ninth Circuit has improperly expanded its federal
habeas corpus jurisdiction thgpugh the expedient of
reinterpreting state law. It has, in effect, reconstituted
itself as a state appellate court. This, as the Court
expressly held in Lewis and Clemons, it may not do.
The Ninth Circuit justifies its evaluation of state
law by relying in part on the Federal Rules of Evidence.
See, Appendix D, at A-49, n. 2. Those rules are not
constitutionally based. Dowling v. United States, __ US.
__, 110 S.Ct. 668, 674 (1990). As such, violation of the
rules alone cannot constitute a federal constitutional
violation, nor can the rules circumscribe a state’s
interpretation of its own rules of evidence. The Court has
"defined the category of infractions that violate
‘fundamental fairness’ very narrowly." Dowling, supra.
"Rules of evidence are designed in the interest of fair
trials. But unfairness in result is no sure measure of
unconstitutionality.". United States v. Augenblick, 393 US.
348, 352 (1969). Moreover, the rules generally do not
prohibit the introduction of evidence, but rather limit the
purpose for which it may be used. Huddleston v. United
States, 485 U.S. 681, 687 (1988)2/ When it enacted the
rules, Congress was less concerned with the potential
prejudicial effect of other crimes evidence “as it was with
ensuring that restrictions would not be placed on the
14.
admission of such evidence." Huddleston, supra, at 688-
689. The erroneous admission of evidence which results
in a conviction is not sufficient to support a finding of
federal constitutional error even on direct review of a
federal conviction. Dowling, supra.
This case, however, does not involve a direct
appeal from a federal conviction. It is a collateral attack
on a state court judgment. The showing required to
justify a reveisal on habeas corpus from a state conviction
is even greater than the plain error requirement on direct
appeal. Engle v. Isaac, 456 U.S. 107, 134-135 (1982);
Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
In addition, the Ninth Circuit has specifically
allowed federal prosecutors to use precisely the same
evidence of prior injuries and battered child syndrome
found to be constitutionally prohibited in respondent’s
state trial, to support a second degree murder conviction
under federal law. United States v. Boise, supra, 916 F.2d
497. The Ninth Circuit lacks justification for authorizing
such evidence in federal prosecutions, while excluding the
same evidence from identical state court proceedings,
particularly given the absence of any supervisory authority
over the state proceedings. Smith v. Phillips, supra.
The Ninth Circuit’s holding that a limiting
instruction on the use of other crimes evidence was
prejudicial is equally erroneous. A jury instruction must
itself infect the entire trial in order to establish a violation
of due process. Henderson v. Kibbe, supra, 431 US. at
154. It is not enough to show that the instruction was
undesirable, erroneous, or condemned; it must violate
some due process right protected by the Fourteenth
_—s
15.
Amendment. Cupp v. Naughten, 414 U.S. 141, 146 (1973).
The state trial record does not support such a showing.
The instruction allowed the jury to consider
evidence of prior similar acts to impeach the testimony of
respondent’s wife, to establish the battered child
syndrome, and to find that respondent committed the
present offense if it could logically be concluded that he
committed the other offenses. The Ninth Circuit
concluded, again in reliance on the Federal Rules of
Evidence, that the evidence of prior injury to the victim
was not explicitly connected to respondent and therefore
could not be used to permit an inference of guilt in this
case. This precise objection was rejected by the state trial
court, which noted that if the jury found from the
evidence of prior injuries that the victim was a battered
child, it could then conclude that her death was not
accidental. Once it made that finding, the jury could
consider respondent’s contrary assertions to his wife and
to the police that the death was accidental to be lies
indicating a consciousness of guilt, and further infer that
respondent murdered his baby. Similarly, a finding by the
jury that respondent hit his wife and baby as described in
the testimony, coupled with his lies about the cause of
Tori’s fatal injuries, would properly support a finding of
guilt.
This use of the evidence was proper under state
law and nothing in the Ninth Circuit’s opinion suggests a
constitutional basis for challenging the instruction. Indeed,
the federal courts have recognized, in prosecutions for
child abuse homicides under federal] law, that proof of
prior injuries demonstrating the death was not accidental,
coupled with the defendant’s custody of the child when
16.
the fata] blows were inflicted, will support a conviction for
murder. See, e.g., United States v. Boise, supra, 916 F.2d
at 500; United States v. Harris, 661 F.2d 138, 141 (10th
Cir. 1981); United States v. Bowers, 660 F.2d 527, 529 (Sth
Cir. Unit B 1981); United States v. Woods, 484 F.2d 127,
133 (4th Cir. 1973) 4/
"Tori McGuire’s short life was the type of horror
no sentient being should have to endure." Appendix D,
at A-46. Unfortunately, cases like this and deaths such as
Tori suffered are much too common. A recent survey
shows that 1,237 child abuse fatalities were reported
nationwide in 1989. The National Center on Child Abuse
Prevention Research, Current Trends in Child Abuse
Reporting and Fatalities: The Results of the 1989 Annual
Fifty State Survey, p. 14 (March 1990). The number of
reported child abuse homicides has increased by 38%
since 1985. Jd., at 15. Children died at the rate of one
murder by a parent or guardian per week in Los Angles
County in 1989. Los Angeles Times (November 14, 1990)
at page 1A, column 2. In Chicago, 41 children under the
age of 10 died in reported homicides last year. Of those
victims, 32 were, like Tori McGuire, one year old or
younger. Chicago Tribune (May 20, 1990) at page 1.
4. As noted, the evidence of prior injuries was admitted on three
grounds. Although the Ninth Circuit, albeit incorrectly, found one
basis to be improper, it completely ignored the other two. If the
evidence would have been admitted anyway, a showing of
constitutional error, much less prejudice, becomes substantially more
difficult. The state court found that the evidence was proper to prove
the battered child syndrome and to rebut a claim of accident. As a
result, the state court did not have to consider the other grounds of
admission. The federal court’s refusal to do so, however, is unexcused
and unexplained. See, Appendix D, at A-54 to A-55.
a ee Ae ee eae
17.
Child abuse cases "present many unusual
problems of proof." United States v. Leight, supra,
818 F.2d at 1304. There are usually no witnesses, often
the victim is dead, and even if the victim survives she may
be too young to describe what happened. As a result, the
cases are "commonly built upon circumstantial evidence
showing a pattern of repeated injuries suggesting child
abuse." id, at 1301. Absent a clear violation of a federal
constitutional right, no justification exists for removing
from state prosecutors their most effective, and sometimes
only, weapon for convicting the abusers. The Ninth
Circuit, however, has done precisely that. As persuasively
argued in the dissent from denial of rehearing en banc,
the decision places in jeopardy any Ninth Circuit state
court prosecution for a child abuse homicide in which
evidence of prior injuries is admitted. Appendix D.
In Maryland v. Craig, _ U.S. _, 110 S.Ct. 3157
(1990), the Court recognized the states’ "interest in the
physical and psychological well-being of child abuse
victims." 110 S.Ct. at 3167; see also New York v. Ferber,
458 U.S. 747, 757 (1982) [the courts will attempt to
protect the physical and emotional well-being of children].
The Ninth Circuit’s improper, expansive view of its habeas
corpus jurisdiction ignored that interest. Certiorari should
be granted to restore to the states their ability to
effectively prosecute and punish those who prey upon the
most defenseless members of our society.
/// |
Ml
///
///
///
18.
CONCLUSION
For the reasons stated above, we respectfully
request that the Petition for Writ of Certiorari to the
Ninth Circuit be granted.
Dated: December 13, 1990.
DRG:dm
JOHN K. VAN DE KAMP
Attorney General
RICHARD B. IGLEHART
Chief Assistant Attorney General
JOHN H. SUGIYAMA
Senior Assistant Attorney General
MORRIS BEATUS
_— Deputy Attorney General
Vt
DANE R. GILLETTE
Deputy Attorney General
[Attorney of Record]
Attorneys for Petitioner
APPENDICES
EE EEE EE
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK OWEN McGUIRE, _s)
Plaintiff-Appellant, ) No. 87-2522
)
v. ) D.C. No.
) CV-85-6521-TEH
WAYNE ESTELLE, )
Warden, ) OPINION
Defendant-Appellee. )
)
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted June 14, 1988
San Francisco, California
Opinion filed May 8, 1989 and withdrawn April 23, 1990
Filed May 4, 1990
__ Before: Mary M. Schroeder and Charles Wiggins, Circuit
Judges, and Albert Lee Stephens, Jr’, District Judge.
Opinion by Judge Wiggins
*. Hon. Albert Lee Stephens, Jr., United States District Judge for
the Central District of California, sitting by designation.
A-1
COUNSEL
Ann Hardgrove Vorhis, San Francisco, California,
for the plaintiff-appellant.
Herbert F. Wilkinson, Supervising Deputy
Attorney General, San Francisco, California, for the
defendant-appellee.
OPINION
WIGGINS, Circuit Judge:
Mark McGuire ("McGuire") appeals from the
district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254(a). McGuire was
convicted of second degree murder and is now serving a
fifteen year to life sentence in a California state prison.
McGuire contends that the admission of evidence of prior
acts against him at his trial, coupled with an instruction
that permitted the jury to consider those prior acts as
evidence of his guilt of the crime charged, were errors
that denied him due process of law under the Fourteenth
Amendment. We find that his contention has merit and
REVERSE.
A-2
FACTS AND PROCEEDINGS BELOW
Because a proper consideration of McGuire’s due
process claim requires weighing the prejudice to him of
the error he alleges, we examine the trial testimony in
some detail.
At about 9:00 p.m., on July 7, 1981, McGuire and
his wife brought their six month old baby girl to the
emergency room of a hospital in Hayward, California.
The baby was bluish in color and was not breathing. The
hospital staff were unable to save the baby and she was
pronounced dead at about 9:45 p.m.
The father, McGuire, was charged with second
degree murder of his child.
At trial, the prosecution called Dr. Levine, the
doctor who examined the baby at the hospital. She
testified that the child was essentially lifeless and without
vital signs when she was brought into the hospital. The
doctor also testified that the baby had a large and
relatively recent bruise on the upper left chest area with
multiple bruise marks around it, black and blue marks on
her ears, and scar tissue indicating a healed tearing
around the anus. Doctor Levine opined that the rectal
tear was not caused by constipation or fecal impactment.
She testified that such scarring probably resulted from the
forceful insertion of a finger or some other foreign object.
The doctor also testified that the baby had suffered from
seven earlier rib fractures.
A different doctor performed an autopsy on the
baby and testified that there were at least 17 contusions
on the baby’s chest and 29 more on her abdomen. He
testified that his examination of the internal organs
A-3
revealed that the liver was split in half, her pancreas was
lacerated and split apart, her lower right lung and large
vein from the heart were damaged, and part of her
intestine was lacerated. The doctor also testified to rectal
tearing at least six weeks old and to evidence of several
partially healed rib fractures approximately seven weeks
old.
McGuire made timely objection to all evidence of
prior injuries as not being connected to him. The
objections were overruled.
None of the foregoing evidence of injury to. the
child included evidence of who caused the injuries to her.
The prosecution also called a witness who had
overheard McGuire talking to his wife in the emergency
room of the hospital. The witness stated that McGuire’s
wife asked him "what really had happened?" and McGuire
is reported to have responded that the baby had fallen
from the couch.
A police officer was called by the prosecution.
He testified that McGuire had told him that the child had
fallen from the couch. The officer than told McGuire
that the baby’s injuries were inconsistent with a fall from
the couch. McGuire thereupon responded that “maybe
some Mexicans came in while I was upstairs."
McGuire’s wife was next called as a witness by
the prosecution. She was granted transactional immunity
for her testimony although she had made no statement to
the prosecutor prior to the trial. When asked about the
circumstances of the baby’s death, she testified that she,
and not her husband, had beaten the baby. She gave a
confused account of having struck the baby in the
A-4
afternoon of July 7, 1981 and that the child did not move,
cry, Or cough thereafter. |
McGuire’s wife testified that on the afternoon of
the 7th, after she struck the child, she left the house for
about ten minutes and when she returned, the child was
not breathing. She stated that she asked her husband
what had happened and he said the child had fallen from
the couch and struck the walker. She also testified that
several weeks prior to the baby’s death, she inserted her
finger into the baby’s rectum in an attempt to relieve her
of constipation. She also testified to staying at a
neighbor’s house for four days prior to the 7th and had
made inquiries about a battered woman’s shelter.
The prosecution introduced evidence that a fall
from a couch could not have produced the injuries causing
the baby’s death. The prosecution also introduced
evidence that McGuire had treated the baby roughly in
the past.
The defense countered with witnesses who
testified they had never seen McGuire abuse the child.
McGuire did not testify in his own defense.
On March 19, 1982, the jury returned a verdict of
second degree murder against McGuire. On January 15,
1985, the California Court of Appeal affirmed his
conviction. McGuire petitioned for a hearing before the
California Supreme Court. On March 21, 1985, the
California Supreme Court issued a "postcard denial" of the
petition. It did so without any citation or comment.
On August 30, 1985, McGuire filed a petition for
writ of habeas corpus in federal district court under
28 U.S.C. § 2254(a). Order to show cause issued on
February 26, 1986. In its original response, the state of
A-5
California did not answer on the merits but argued that
McGuire had failed to exhaust his state remedies. The
district court, relying on Maxwell v. Sumner, 673 F.2d 1031,
1034 n.1 (9th Cir.), cert. denied, 459 U.S. 976 (1982), ruled
against the state on the exhaustion issue and ordered it to
answer on the merits. After the state did so, the district
court denied McGuire’s petition on July 15, 1987. It held
that the admission of the evidence of the prior injuries to
the child, and a jury instruction relating to that evidence,
was proper under California evidence rules. The court
also found that the evidence was relevant to contradict a
pretrial statement made by McGuire, and offered at trial
by the prosecution, that the baby’s injuries were caused by
her falling off a couch. The court also rejected McGuire’s
fifth amendment prosecutorial misconduct and denial of
discovery claims. McGuire timely appealed. We have —
jurisdiction under 28 U.S.C. § 1291.
I. EXHAUSTION
28 U.S.C. § 2254(b) states: "An application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State... ."_ On
direct appeal to the California appellate court, McGuire
raised four issues: (1) admission of evidence of prior
injuries to the baby and an errant "other crimes"
instruction, (2) a fifth amendment claim that the original
trial court erroneously admitted evidence of a statement
made to the police that "some Mexicans" might have come
into his home and presumably injured the baby, (3) a
A-6
second fifth amendment claim relating to statements he
made to the police without Miranda warnings the day
before he was arrested, and (4) a prosecutorial misconduct
claim. In his petition to the California Supreme Court,
McGuire raised only the issues of the evidence of prior
injuries and the “Mexican intruder” statement. The
California Supreme Court denied his petition without a
hearing, comment, or citation. In his petition for habeas
corpus, however, McGuire raised all four claims that he
had previously raised before the California appellate court.
A petition containing both exhausted and
unexhausted claims must be dismissed by the federal
courts. Rose v. Lundy, 455 U.S. 509, 510 (1982).
Although McGuire presented only two of his four issues
to the California Supreme Court, he has properly
exhausted his state remedies. In Maxwell, we stated that:
[If a claim has been briefed and argued
before the [California] court of appeal,
failure to assert it in the petition to the
California Supreme Court does not
normally waive the claim . . . [W]hen the
California Supreme Court grants a
hearing, its order effectively vacates the
order of the court of appeal; the
California Supreme Court then decides
each issue in the case as if it were on
original appeal from the trial court,
"regardless of the grounds relied on in the
petition."
A-7
Maxwell, 673 F.2d at 1034 n.1 (citations omitted)4/ Thus
we may reach the merits of McGuire’s claims.
Il. THE CONSTITUTIONALITY OF APPELLANT'S
CONVICTION
We review the district court’s denial of 4 petition
for a writ of habeas corpus de novo. Weygandt v.
Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). A state
prisoner is entitled to habeas relief only if he is held in
violation of the constitution, laws, or treaties of the
United States. Engle v. Isaac, 456 U.S. 107, 119 (1982);
28 U.S.C. § 2254(a). McGuire contends that the
procedures used to convict him in state court violated his
fourteenth amendment right to due process. U.S. Const.
Amend. XIV. We agree.
A claim for deprivation of due process will
succeed only if the trial court’s errors rendered the trial
arbitrary or fundamentally unfair. Pennywell v. Rushen,
705 F.2d 355, 357 (9th Cir. 1983). In the instant case we
find that the aggregate effect of the admittance of
irrelevant, highly prejudicial evidence, compounded by the
trial court’s instruction to use that evidence in the most
1. The Maxwell “rule” will no longer be effective for petitions
presented to the California Supreme Court after March 6, 1985. On
that date new California Supreme Court appellate rules came into
effect. Presently, the California rules provide that "[ojnly the issues
set forth in the petition and answer or fairly included in them need
be considered by the court." Cal. Rules Sup. Ct. & Cts. of Appeal
28(€)(2) and Advisory Committee Comment, 1 4. The present case,
however, is governed by Maxwell. The appellant filed his petition for
hearing on February 26, 1985, before the effective date of the new
California rules.
A-8
Ss enon ee
prejudicial manner possible, rendered appellant’s trial
arbitrary and fundamentally unfair.
A. THE ADMITTANCE OF IRRELEVANT,
PREJUDICIAL EVIDENCE
The trial court admitted extensive evidence of
prior physical abuse the baby had suffered, including
evidence of possible sexual abuse. However, that
evidence has no relevance to appellant because the
prosecution did not establish that appellant inflicted those
injuries.
In order for evidence to be relevant, it must have
some probative value. See, e.g., Fed.R.Evid. 401 (evidence
to be relevant must make the determination of the action
more probable or less probable than it would be without
the evidence). Evidence cannot have probative value
unless a party connects it to the defendant in some
meaningful way. See, eg., United States v. Hooten,
662 F.2d 628, 635 (9th Cir. 1981), cert. denied, 455 US.
1004 (1982) (in order for prior act evidence to be
admissible under the Fed.R.Evid. it must be "similar and
close enough in time to be relevant"); People v. Rivera,
41 Cal.3d 388, 392, 710 P.2d 362, 364, 221 Cal.Rptr. 562,
564 (1985) (in bank) ("In order for evidence of a prior
[act] to have a tendency to prove the defendant’s identity
as the perpetrator of the charged offense, the [prior act
and the charged offense] must have enough shared
characteristics to raise a strong inference that they were
committed by the same person. ... It is not enough that
the two acts contain common marks.").
A-9
In the instant case, the prosecution made no such
connection. The prosecution elicited evidence that
McGuire was rough with the baby, and that on one
occasion McGuire had squeezed the baby’s cheeks. Daisy
McGuire also stated that she feared leaving the baby
alone with McGuire. We recognize the temptation to find
that such evidence is enough to infer that McGuire caused
the prior rectal tearing and the broken ribs. However, we
cannot permit a jury that temptation. Evidence of
McGuire’s petty meanness does not establish that he
committed, or is even capable of, the extensive physical
abuse inflicted on the child. It is precisely because
anyone, including Daisy McGuire, could have inflicted
those injuries that makes the prior injury evidence
irrelevant. )
We emphasize that the trial court’s error was not
simply that it admitted the prior evidence under the
wrong evidentiary theory. Nor do we dispute that there
are constitutionally permissible uses for admitting evidence
of prior bad acts. See Fed.R.Evid 404(b) (evidence of
other crimes, wrongs or acts may be admissible to prove
motive, opportunity, intent, preparation, plan, knowledge
identity, or absence of mistake or accident); United
States v. Lewis, 837 F.2d 415, 418-419 (9th Cir.), cert.
denied, 109 S.Ct. 304 (1988) (evidence of prior child abuse
properly admitted to show intent). However, acts which
the prosecution did not connect to appellant cannot be
characterized as his prior acts.
Furthermore, we find the introduction of such
prior injury evidence highly prejudicial. The prosecution
introduced evidence of prior injuries to the baby to
establish that appellant was a child abuser, and for no
A-10
a
other purpose, in a murder trial for the death of his child.
The trial court incorrectly admitted the evidence pursuant
to California law allowing past injury evidence to establish
the “Battered Child Syndrome." The Battered Child
Syndrome allows proof of past injuries to prove the child’s
present injuries did not occur accidentally. See People v.
Jackson, 18 Cal.App.3d 504, 506, 95 Cal.Rptr. 919, 921
(1971); Landeros v. Flood, 17 Cal.3d 399, 409, 551 P.2d
389, 393, 131 Cal.Rptr. 69, 73 (1976).
However, in the instant case, no claim was made
that the child died accidentally. The prosecution
attempted to prove Mark McGuire deliberately did it.
The defense attempted to prove Daisy McGuire
deliberately did it. Although the prosecution did not
succeed in proving that the appellant caused the prior
injuries, we cannot ignore that a trial of the grisly murder
of an innocent baby implicates highly charged emotions.
The unproven characterization of appellant as a child
abuser maximized the prejudice flowing from the
irrelevant evidence. See Dudley v. Duckworth, 854 F.2d
967 (7th Cir. 1988) (granting habeas relief where
prejudicial effect of evidence so outweighed probative
value that result was a denial of fundamental fairness);
Osborne v. Wainwright, 720 F.2d 1237 (11th Cir. 1983)
(reversing and remanding a denial of habeas corpus
petition on basis that prejudicial effect of evidence might
have risen to such magnitude as to deny fundamental
fairness); Bisaccia v. Attorney General of State of New
Jersey, 623 F.2d 307 (3d Cir. 1980) (same).
A-11
B. IMPROPER JURY INSTRUCTIONS
The trial court did not merely admit irrelevant,
highly prejudicial evidence without comment. The trial
court instructed the jury to use that evidence in the most
improper way possible. We assume that the jury followed
its instructions. Aspen Skiing Co. v. Aspen Highland Skiing
Corp., 472 U.S. 585, 604 (1985). The trial court’s jury
instructions stated: '
Evidence has been introduced for the
purpose of showing that the defendant
committed acts similar to those
constituting a crime other than that for
which he is on trial. Such evidence, if
believed, was not received, and may not
be considered by you to prove that he is
a person of bad character or that he had
a disposition to commit crimes. Such
evidence was received and may be
considered by you only for the limited
purpose of determining if it tends to show
three things:
1. The impeachment of Daisy McGuire’s
testimony that she had no cause to be
afraid of the defendant,
2. To establish the battered child
syndrome, and
3. Also a connection between the other
two offense (sic) and the one of which
the defendant is accused so that it may
be logically concluded that if the defendant
committed other offenses, he _ also
A-12
ee
committed the crime charged in the case.
You are not permitted to consider
evidence for any other purpose.
(emphasis added).
Subsection 3 of the instruction is erroneous.4’ It
permits the jury to make a direct determination of guilt
by concluding that appellant committed prior bad acts.
The rejection of such use of circumstantial character
evidence in criminal cases has become "so deeply
imbedded in our jurisprudence as to assume almost
constitutional proportions. . . ." Fed.R.Evid. 404(a)
advisory committee’s note.
Not only have we never condoned an instruction
which permits a finding of guilt based on a conclusion that
the appellant committed prior bad acts, we have
consistently stressed the importance of a _ limiting
instruction to confine the use of prior bad act evidence to
the proper purpose for which the court admitted it. See
United States v. Green, 648 F.2d 587, 593 (9th Cir. 1981)
(admission of bad act evidence in conjunction with failure
of trial judge to provide limiting instruction following
admission of bad act evidence required reversal); cf.
Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985) (no
due process violation resulted from wrongful admission of
prejudicial evidence where instructions limited use of that
evidence to find intent); United States v. McCown,
711 F.2d 1441, 1454 (9th Cir. 1983) (no due process
2. It appears that the trial court’s erroneous instruction was the
result of an incorrect reading of CALJIC 2.50 (1979 Revision). This
Standard jury instruction has been clarified to avoid the
misunderstanding which occurred here. See CALJIC 2.50 (1987
Revision).
A-13
violation resulted from admission of prior bad acts
evidence where prejudice was minimal and trial judge
offered to give a limiting instruction).
The damage done by subsection 3 is not limited
by a qualifying instruction by the court. Nor is
subsection 3 limited by the preceding subsections of the
not to use the evidence of prior bad acts to find that
McGuire was a bad person and therefore infer that
McGuire was likely to have committed this crime.
Subsection 3, however, informed the jury that it may find
McGuire guilty of the offense charged if it logically
concluded that he committed the other earlier offenses.
For these reasons, the faulty instruction considered along
with the admittance of the prejudicial evidence "so
infected the entire trial that the resulting conviction
violate[d] due process." Cupp v. Naughten, 414 US. 141,
147 (1973). Nor do we believe that this error can be
considered harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967). Although
there was evidence suggesting McGuire’s guilt, this
evidence was certainly not overwhelming. See Dudley v.
Duckworth, 854 F.2d 967, 972 (7th Cir. 1988) (error not
harmless even when evidence of petitioner’s guilt was
"impressive but not overwhelming.").
Il. CONCLUSION
We find that the jury instruction which permitted
the direct determination of guilt from evidence of prior
injuries not connected to McGuire denied him due
process. The severity of these errors sets this case apart
A-14
from arguably similar cases in which we rejected claims
that evidentiary error rendered a trial fundamentally
unfair. For example, in Lewis, we found no due process
error where the trial court admitted evidence of prior
child abuse in a defendant’s trial for the murder of his
son. 837 F.2d at 418-19. However, Lewis suffered from
neither of the errors we find determinative in the instant
case. In Lewis, the testimony of two witnesses connected
the defendant to the infliction of the prior injuries, and
the trial court provided a limiting instruction. Jd, at 419.
Because the prejudicial effect of the errors
discussed above amount to a denial of due process, we
grant McGuire’s habeas petition. However, we are also
not blind to the fact that apart from those errors, only the
barest threads connect McGuire to the crime. True, given
the pattern of most child abuse cases, it is not
unreasonable to assume that one or both of the baby’s
primary care givers were responsible for the baby’s
injuries and death. We are also mindful that in the
emergency room, McGuire answered unconvincingly in
response to Daisy McGuire’s accusation that McGuire
bore responsibility for the baby’s injuries leading to death.
And evidence existed that McGuire had treated his wife
and the baby roughly in the past. But these are mere
shadows of guilt which leave ample room for reasonable
doubt. Due process requires more than a simple intuitive
feeling that the father may be guilty. It requires
convincing proof.
We REVERSE and REMAND for a new trial.
A-15
APPENDIX B
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK OWEN McGUIRE, __)
Plaintiff-Appellant, ) No. 87-2522
)
v. ) D.C. No
) CV-85-6521-TEH
WAYNE ESTELLE, )
Warden, ) OPINION
Defendant-Appellee. _)
)
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
June 14, 1988 -- San Francisco, California
Filed May 8, 1989
Before: Mary M. Schroeder and Charles Wiggins, Circuit
Judges, and Albert Lee Stephens, Jr’, District Judge.
Opinion by Judge Wiggins
*. Hon. Albert Lee Stephens, Jr., United States District Judge for
the Central District of California, sitting by designation.
A-16
SUMMARY
Reversing the district court’s denial of a petition
for a writ of habeas corpus and remanding for a grant of
a conditional! writ, the court held that the admission of
evidence of prior acts violated due process.
Appellant Mark McGuire was convicted of second
degree murder in the death of his infant daughter. At the
trial, McGuire’s wife was granted transactional immunity
by the prosecution. The trial judge admitted evidence of
prior injury to the child, which also indicated possible
sexual abuse. The jury was instructed on the prior injury
evidence in such manner that if they found that McGuire
had committed any previous offenses against the child,
they could find him guilty of the charged offense.
[1] An erroneous evidentiary ruling will not cause
a writ to issue unless a specific constitutional guarantee
has been violated or the error results in the denial of
fundamental fairness. [2] The probative value of evidence
of prior injuries was negligible since the only permissible
proposition the evidence could prove was whether the
injuries were accidental or intentional and the defense was
not predicated on proof of accident. [3] The prejudicial
quality of the evidence was exacerbated by the instruction
and the instruction alone probably constituted error of
constitutional dimension.
A-17
COUNSEL
. Ann Hardgrove Vorhis, San Francisco, California,
for the plaintiff-appellant.
Herbert F. Wilkinson, Supervising Deputy
Attorney General, San Francisco, California, for the
defendant-appellee.
OPINION
WIGGINS, Circuit Judge:
Mark McGuire ("McGuire") appeals from the
district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254(a). McGuire _ was
convicted of second degree murder and is now serving a
fifteen year to life sentence in a California state prison.
McGuire contends that the admission of evidence of prior
acts against him at his trial was error and denied him due
process of law under the Fourteenth Amendment. We
find that his contention has merit and REVERSE.
FACTS AND PROCEEDINGS BELOW
At about 9:00 p.m., on July 7, 1981, McGuire and
his wife brought their six-month-old baby girl to the
emergency room of a hospital in Hayward, California.
The baby was bluish in color and was not breathing. The
hospital staff were unable to save the baby and she was
pronounced dead at about 9:45 p.m.
A-18
At trial, one of the baby’s treating physicians
testified that the child was essentially lifeless and without
vital signs when she was brought into the hospital. The
doctor also testified that the baby had a large and
relatively recent bruise on the upper left chest area with
multiple bruise marks around it, black and blue marks on
her ears, and scar tissue indicating tearing around the
anus. A doctor who performed an autopsy on the body
testified that there were at least seventeen contusions on
the baby’s chest and twenty-nine more on her abdomen.
Examination of the internal organs revealed that the liver
was split in half, her pancreas was lacerated and split
apart, her lower right lung and large vein from the heart
were damaged, and part of her large intestine was
lacerated. Over McGuire’s objection, the doctor also
testified to rectal tearing at least six weeks old and to
evidence of several partially healed rib fractures
approximately seven weeks old.
McGuire’s wife was granted transactional
immunity by the prosecution. At trial, testifying for the
prosecution, she stated for the first time that she, and not
her husband, had beaten the baby.
On March 19, 1982, the jury returned a verdict of
second degree murder against McGuire. On January 15,
1985, the California Court of Appeal affirmed his
conviction. McGuire petitioned for a hearing before the
California Supreme Court. On March 21, 1985, the
California Supreme Court issued a "postcard denial" of the
petition. It did so without any citation or comment.
On August 30, 1985, McGuire filed a petition for
writ of habeas corpus in federal district court under
28 U.S.D. § 2254(a). Order to show cause issued on
A-19
February 26, 1986. In its original response, the state of
California did not answer on the merits but argued that
McGuire had failed to exhaust his state remedies. The
district court, relying on Maxwell v. Sumner, 673 F.2d
1031, 1034 n.1 (9th Cir.), cert. denied, 459 U.S. 976 (1982),
ruled against the state on the exhaustion issue and
ordered it to answer on the merits. After the state did
so, the district court denied McGuire’s petition on July 15,
1987. It held that the admission of the evidence of the
prior injuries to the child, and a jury instruction relating
to that evidence, was proper under California evidence
rules. The court also found that the evidence was
relevant to contradict a pretrial statement made by
McGuire, and offered at trial by the prosecution, that the
baby’s injuries were caused by her falling off a couch.
The court also rejected McGuire’s fifth amendment
prosecutorial misconduct and denial of discovery claims.
McGuire timely appealed. We have jurisdiction under 28
U.S.C. § 1291.
1. Exhaustion
28 U.S.C. § 2254(b) states: "An application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State... ." On
direct appeal to the California appellate court, McGuire
raised four issues: (1) admission of evidence of prior
injuries to the baby and an errant “other crimes"
instruction, (2) a fifth amendment claim that the original
trial court erroneously admitted evidence of a statement
A-20
made to the police that "some Mexicans" might have
come into his home and presumably injured the baby,
(3) a second fifth amendment claim relating to statements
he made to the police without Miranda warnings the day
before he was arrested, and (4) a_ prosecutorial
misconduct claim. In his petition to the California
Supreme Court, McGuire raised only the issues of the
evidence of prior injuries and the "Mexican intruder"
statement. The California Supreme Court denied his
petition without a hearing, comment, or citation. In his
petition for habeas corpus, however, McGuire raised all
four claims that he had previously raised before the
California appellate court.
A petition containing both exhausted and
unexhausted claims must be dismissed by the federal
courts. Rose v. Lundy, 455 U.S. 509, 510 (1982).
Although McGuire presented only two of his four issues
to the California Supreme Court, he has properly
exhausted his state remedies. In Maxwell, we stated that:
[I]f a claim has been briefed and argued
before the [California] court of appeal,
failure to assert it in the petition to the
California Supreme Court does not
normally waive the claim . . . [W]hen the
California) Supreme Court grants a
hearing, its order effectively vacates the
order of the court of appeal; the
California Supreme Court then decides
each issue in the case as if it were on
original appeal from the trial court,
"regardless of the grounds relied on in
the petition."
A-21
Maxwell, 673 F.2d at 1034 n.1 (citations omitted)*/ Thus
we may reach the merits of McGuire’s claims.
Il. Past Injuries.
This court reviews the district court’s denial of a
petition for a writ of habeas corpus de novo.
Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.
1985). A state prisoner is entitled to relief under
28 U.S.C. § 2254 only if he is held in violation of the
Constitution or laws of the United States. Engle v. Isaac,
456 U.S. 107, 119 (1982); 28 U.S.C. § 2254(a). McGuire
contends that admission of evidence of the baby’s prior
injuries, coupled with a jury instruction that allowed the
jury to infer that if he committed the prior offenses he
committed the charged crime, deprived him of due
process. An erroneous evidentiary ruling will not cause a
writ to issue unless a specific constitutional guarantee has
been violated or the error is of such magnitude that the
result is a denial of fundamental fairness. United States v.
DeRobertis, 738 F.2d 168, 170 (7th Cir.), cert. denied,
469 U.S. 924 (1984). Before a federal court may overturn
a state court conviction based on an incorrect or
at
«
1. The Maxwell "rule" will no longer be effective for petitions
presented to the California Supreme Court after March 6, 1985. On
that date new California Supreme Court appellate rules came into
effect. Presently, the California rules provide that "[o]nly the issues
set forth in the petition and answer or fairly included in them need
be considered by the court." Cal. Rules Sup. Ct. & Cts. of Appeal
28(e)(2) and Advisory Committee Comment, 9 4. The present case,
however, is governed by Maxwell. The appellant filed his petition for
hearing on February 26, 1985, before the effective date of the new
' California rules.
A-22
erroneous jury instruction, "it must be established not
merely that the instruction is undesirable, erroneous, or
even ‘universally condemned,’ but that it violated some
right which was guaranteed to the defendant by the
Fourteenth Amendment." Cupp v. Naughten, 414 U.S.
141, 146 (1973). The erroneous jury instruction must have
rendered the trial so fundamentally unfair as to have
denied McGuire due process. Ahlswede v. Wolff, 720 F.2d
1108, 1111 (9th Cir. 1983) (per curiam), cert. denied,
469 U.S. 873 (1984).
At trial, the prosecution introduced evidence that
the baby had been physically abused in the past. Some of
this evidence also indicated possible sexual abuse. The
evidence was admitted pursuant to California law allowing
such evidence to show that a child was a victim of the
"Battered Child Syndrome." "The syndrome means that a
child has received repeated and/or serious injuries by non-
accidental means. .. ." People v. Jackson, 18 Cal.App.3d
504, 506, 95 Cal.Rptr. 919, 921 (1971); see also People v.
Steger, 16 Cal.3d 539 549 n.4, 546 P.2d 665, 671 n.4,
128 Cal.Rptr. 161, 167 n.4 (1976). Proof of the syndrome
"essentially means that the victim’s injuries were not
inflicted by accidental means. . . ."_ Landeros v. Flood,
17 Cal.3d 339, 409, 551 P.2d 389, 393, 131 Cal.Rptr. 69,
73 (1976). In other words, proof of the syndrome
demonstrates that a child has suffered repeated injuries
over a period of time. These cases demonstrate that the
California courts have been careful to limit proof of the
syndrome to show that the child had not accidentally
suffered the injuries. The additional finding that the
injuries were probably caused by a particular person may
not be made simply on the basis of proof of the syndrome
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itself. See Jackson, 18 Cal.App.3d at 507, 95 Cal.Rptr. at
921.
Jackson and Landeros make clear that proof of
the syndrome does not prove who caused the injuries.
That fact, though it may be inferred from proof of who
was in contact with or cared for the child, is separate and
distinct from proof of the syndrome itself. Jd. In the
case at bar, no one claimed that the child died
accidentally. The prosecution introduced McGuire's
pretrial statement that the injuries that killed the baby
might have been caused by her falling off the couch.
McGuire’s defense at trial was not predicated on this or
any other proof of accident. Rather, he attempted to
prove that his wife had killed the baby. The undisputed
evidence of the massive injuries to the baby
overwhelmingly refuted any inference of accidental death.
The only permissible proposition this evidence could prove
was whether the baby had suffered accidental or
intentional injuries. This proposition was not at issue in
this case. Thus, the probative value of the evidence of
these prior injuries was negligible.
In addition, the prejudicial nature of this evidence
was inherently great. Cf. DeRobertis, 738 F.2d at 171 (in
a due process analysis of questioned evidence, the issue is
whether the probative value of the evidence outweighs the
prejudice to the accused). Proof of prior injuries to a
small baby, coupled with the sexual nature of some of the
injuries, inevitably prejudices McGuire. More significantly,
there was little proof that McGuire was responsible for
these injuries. It is certainly logical to infer that the
primary care givers of the baby hurt and sexually molested
the child on some prior date. The jury, however, was
A-24
presented with no direct proof of whether McGuire or his
wife caused these prior injuries. Either could have been
responsible. One possibility, however, had been
foreclosed by the prosecution. By offering the wife
immunity, the jury was left with only one option -- to find
McGuire guilty of the murder. Proof of the prior injuries,
not necessary to prove that the baby’s death was
purposeful, could only have further prejudiced McGuire in
front of the jury. |
The prejudicial quality of the evidence was
exacerbated by an instruction given to the jury. The trial
court instructed the jury on the prior injury evidence as
follows:
Evidence has been introduced for the
purpose of showing that the defendant
committed acts similar to _ those
constituting a crime other than that for
which he is on trial... . Such evidence
was received and may be considered by
you only for the limited purpose of
determining if it tends to show
a connection between the other two
offenses and the one of which the
defendant is accused, so that it may be
logically concluded that if the defendant
committed the other offenses, he also
committed the crime charged in the case.
This instruction specifically told the jury that if it thought
McGuire committed the other two "offenses" they could
find him guilty of the charged offense. The instruction
alone would probably constitute error of constitutional
A-25
dimension. See Butcher v. Marquez, 758 F.2d 373, 378
(9th Cir. 1985); United States v. Winters, 729 F.2d 602, 604
(9th Cir. 1984). Certainly, coupled with the inherent
prejudicial quality of the evidence itself, the error was of
such magnitude to deny McGuire a fundamentally fair
trial. We hold that McGuire was denied due process by
admission of this evidence and its associated jury
instruction.2/
CONCLUSION
We are troubled that our disposition does not do
justice in this case. A baby has been killed. Only the
father and mother had access to the baby. One or the
other, or perhaps both, are responsible for the death.
This appeal, however, only concerns McGuire. Perhaps
the state authorities should examine whether the mother
fraudulently negotiated her grant of immunity, and if so,
whether the immunity can be withdrawn. We express no
opinion as to whether the evidence justifies a retrial of
McGuire, his wife, or both, for murder.
We REVERSE the district court’s denial of
McGuire’s petition for a writ of habeas corpus. We
REMAND to the district court for the grant of a
conditional writ. The state is permitted 90 days from this
remand to refile.
REVERSED AND REMANDED.
2. Given our disposition of this case, we do not reach or decide
the appellant’s Miranda claim.
A-26
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MARK OWEN McGUIRE, _)
Petitioner, ; No. C 85-6521 TEH
. } ORDER
WAYNE ESTELLE, 4
Respondent. :
)
Petitioner Mark McGuire was convicted of second
degree murder in Alameda County Superior Court for the
killing of his infant daughter. On May 12, 1982, petitioner
was sentenced to a term of 15 years to life for the
murder, and is currently serving this sentence at the
California Men’s Colony in San Luis Obispo. The
California Court of Appeal affirmed his conviction, and
the California Supreme Court denied his petition for a
hearing. Petitioner applied to this Court for a writ of
habeas corpus, alleging violations of his federal
constitutional rights by the state trial court that convicted
him, and this Court issued an Order to Show Cause.
There are presently five claims before this Court:
1) denial of due process based on the improper admission
of prior act evidence; 2) denial of due process based on
erroneous jury instructions with respect to the admission
A-27
of prior act evidence; 3) violation of the procedural
protections afforded by Miranda v. Arizona, 384 U.S. 430
(1966), based on the improper admission of a statement
at trial; 4) denial of due process based on prosecutorial
misconduct during the prosecutor’s closing argument;
5) denial of due process based on denial of discovery.
Having considered the papers of both parties and the
entire record presented, this Court hereby denies
petitioner’s application for a writ of habeas corpus.
FACTS
About 9:00 p.m. on July 7, 1981, petitioner and
his wife brought their six month old baby daughter to the
Emergency Room of Kaiser Hospital in Hayward. The
screening nurse noticed that the baby was bluish in color
and not breathing. She immediately took the baby to an
emergency treatment room, and then returned to the
screening area to obtain a medical history. Petitioner told
the nurse that the baby had a cold recently and had hit
her head that morning when she fell off of the couch.
The efforts of doctors to save the baby were unavailing,
and she was pronounced dead at 9:45 p.m.
Sharon Levine, M.D., assisted in treating the baby
and testified at trial that the child was essentially lifeless
with no vital signs when brought to the hospital.
Dr. Levine also testified that the baby had a large and
relatively recent bruise on the upper left chest area with
multiple bruises around it, black and blue marks on her
ears, and scar tissue indicating tearing around the rectum.
An autopsy performed by Paul Herman, M.D., on July 8
revealed at least 17 contusions on the baby’s chest, and
A-28
29 more on her abdominal area. When he examined her
internal organs, Dr. Herman found that the baby’s liver
was split apart, her pancreas was lacerated and split apart,
her lower right lung and large vein from the heart were
damaged, and part of the large intestine was lacerated.
Dr. Herman also discovered evidence of rectal tearing,
which was a least six weeks old, and evidence of several
partially healed rib fractures which were approximately
seven weeks old. :
The police arrived at Kaiser Hospital at 9:45 p.m.,
about the same time the baby was pronounced dead. The
police separated the McGuires and briefly questioned
them at the hospital about the baby’s injuries. Petitioner
indicated to Officer Lapic that the baby might have fallen
off the couch and struck the walker which was next to it,
although he was not sure. Petitioner was not given
Miranda warnings before or during the questioning at the
hospital, and he was not informed by police or by hospital
personnel that the baby had died.
Petitioner and his wife were then taken to the
Hayward Police Department in separate cars, and
separately questioned there without Miranda warnings.
Petitioner’s wife told police that she had not hit the baby
and that she did not know whether her husband had. At
the end of the interview, the police told her that the baby
was dead. Petitioner told police that his wife had gone
outside to make a telephone call, leaving the baby on the
couch, and that he heard the baby cry while upstairs using
the bathroom. When he came downstairs, he said, he
found the baby lying on the floor. At the end of the
interview, the police told him the baby had died but that
.
A-29
they would not know the cause of death until the coroner
completed an autopsy.
The police then drove petitioner and his wife to
their apartment, had them sign a “Consent to Search"
form, and then proceeded to take pictures and
measurements of the home. Following the search of the
apartment, petitioner was interviewed briefly in the
parking lot to determine whether inordinate pressure had
been applied to the baby’s chest in an effort to revive her.
In addition, Officer Lapic questioned petitioner outside
the presence of other officers about the origin of the
baby’s bruises and was told that "Maybe some Mexicans
came through the door" while he was upstairs, a statement
that was not revealed until Officer Lapic’s testimony at
trial. No Miranda warnings were given up to this point.
The police called the McGuires the next day,
July 8, and asked them to come to the station to discuss
the coroner’s report. Petitioner arrived at the station for
questioning and there was advised for the first time of his
rights under Miranda. He waived his rights and
proceeded with the interview. About halfway through the
interview, he was told that the coroner’s report indicated
the baby had been beaten to death. Petitioner was
arrested at the termination of the interview. His wife was
not arrested and was granted transactional immunity by
the prosecution. At trial, testifying for the prosecution,
she stated for the first time that she had beaten the baby
just prior to her husband’s arriva! at the house on July 7.
A-30
In addition to Dr. Levine’s testimony that the
baby had sustained at least 46 contusions on her chest
and abdomen, evidence was introduced of several partially
healed rib fractures which were about seven weeks old
and of a tearing wound of the rectum which was about six
weeks old. Based on this evidence of past injuries, in
addition to the more recent injuries causing death, both
Dr. Levine and Dr. Herman concluded at trial that the
baby was a battered child. Petitioner now argues that this
evidence of prior injuries to the baby, for which he was
not on trial and to which he was not tied, was prejudicial
and denied him due process of law.
For the limited purpose of showing that injury or
death resulted from nonaccidental means, California courts
have allowed admission of evidence of prior acts under
California Evidence Code Section 1101(a). See People v.
Bledsoe, 36 Cal.3d 236, 249 (1984). A diagnosis of
battered child syndrome, based on evidence of past
injuries, is not an opinion that any particular person
caused the injuries, but relates solely to the likelihood that
the injuries were accidentally inflicted. People v. Jackson,
18 Cal.App.3d 504, 506-507 (1971). In this case, evidence
of the two types of prior injuries was admitted by the trial
court to support a diagnosis of battered child syndrome
and prove that the baby’s death .vas not accidental. This
was a proper use of evidence under California evidence
rules.
A-31
Since the evidence was admissible under state
evidentiary rules, petitioner must demonstrate that a
constitutional right was implicated by its use in order to
merit habeas corpus relief. Engle v. Isaac, 445 U.S. 107,
119 (1982). Introduction of evidence must be so
prejudicial as to result in a denial of fundamental fairness.
Palmer v. DeRobertis, 738 F.2d 168, 170 (7th Cir. 1984).
No showing of prejudice has been made by petitioner with
respect to admission of prior act evidence. Petitioner
argues that the prior act evidence was irrelevant, because
no defense of accident was ever presented, and
cumulative, because testimony of doctors at trial already
established that death was not the result of accident
without resort to prior act evidence.
The evidence, however, was relevant to the
prosecutor’s case-in-chief, despite the lack of an accident
defense, in order to show that death was the result of
criminal agency and to rebut the statement introduced at
trial that the baby may have died from falling off of a
couch. In addition, the contention that the evidence was
cumulative is speculative on petitioner’s part. Even
though the testimony of Dr. Levine supported the view
that death was not the result of accident, without resort to
prior act evidence, it cannot be said ikat this testimony
alone conclusively established that position. Thus, the
prosecution was allowed to introduce additional evidence,
including evidence of prior injuries, to show the battered
child syndrome and prove that death was not the result of
accident. Moreover, even if admission of prior act
evidence was irrelevant and/or cumulative, petitioner has
not shown that it was so prejudicial as to amount to a
denial of fundamental fairness. See DeRobertis, 738 F.2d
A-32
ee a on
at 170; Cronnon v. State of Alabama, 587 F.2d 246, 250
(Sth Cir. 1979), cert. denied, 440 US. 974 (1979);
Thomas v. Cardwell, 626 F.2d 1375, 1386 (9th Cir. 1980),
cert. denied, 449 U.S. 889 (1981).
2. J I | ti C . Evid Of Pri
Acts
The state trial court instructed the jury on the use
of prior acts evidence, including evidence of the two prior
injuries to the baby, as follows:
Evidence has been introduced for the
purpose of showing that the defendant
committed acts similar to those
constituting a crime other than that for
which he is on trial. Such evidence, if
believed, was not received, and may not
be considered by you to prove that he is
a person of bad character or that he has
a disposition to commit crimes. Such
evidence was received and may be
considered by you only for the limited
purpose of determining if it tends to show
three things:
1. The impeachment of Daisy McGuire’s
testimony that she had no cause to be
afraid of the defendant,
2. To establish the battered child
syndrome, and
3. Also a connection between the other
two offenses and the one of which the
defendant is accused, so that it may be
A-33
logically concluded that if the defendant
committed other offenses, he also
committed the crime charged in the case.
You are not permitted to consider
evidence for any other purpose.
Petitioner argues that Part 3 of this instruction improperly
allowed the jury to base ‘its verdict on acts for which he
was not on trial and to which he was not connected,
instead of limiting the use of the prior act evidence to
show absence of accident/
Federal habeas corpus relief is not available to set
aside a conviction because of an erroneous jury instruction
unless the error rendered the trial so fundamentally unfair
as to deny due process. Ahlswede v. Wolff, 729 F.2d 1108,
1111 (9th Cir. 1983); Quig v. Crist, 616 F.2d 1107, 1111
(9th Cir. 1980), cert. denied, 449 US. 922 (1980);
Shepard v. Nelson, 432 F.2d 1045, 1046 (9th Cir. 1970);
1. Petitioner also argues that Part 3 of this instruction allowed
the jury to connect testimony that he treated the baby roughly on one
occasion and that he slapped his wife on another occasion to the
Offense charged, because the jury might have believed those to be the
“other two offenses” referred to. In the instruction, we find
no merit to this contention. Part 1 and 2 of the jury instructions
sufficiently indicate the use to which evidence of those two prior acts
i of clarity did
significantly prejudice petitioner's case at trial. See United States v.
Pruitt, 763 F.2d 1256 (11th Cir. 1985).
A-34
Trujillo v. Stone, 384 F.Supp. 633, 635 (N.D. Cal. 1974).
The erroneous instruction must be so prejudicial as to
affect the entire trial not merely an instruction which is
“undersirable [sic], erroneous or even ‘universally
condemned™. Henderson v. Kibbe, 431 U.S. 145, 154
(1977); Cupp v. Naughten, 414 U.S. 141, 146-147 (1973).
The appraisal of the significance of error requires a
comparison of the instructions actually given with those
that should have been given. Henderson, 431 U.S. at 154;
Cupp, 414 US. at 146-147.
It is a close question whether Part 3 of the jury
instruction, allowing the jury to connect evidence of the
baby’s prior injuries to petitioner and then to the offense
charged, was in violation of the California Evidence
Code4’ However, we need not reach this issue because
petitioner has not demonstrated that any possible error
rendered his trial so fundamentally unfair that he was
denied due process. Ahlswede, 720 F.2d at 1111.
Admission of evidence of past acts, for the possibly
improper purpose of connecting petitioner to those past
acts and then to the offense charged, did not "infect the
entire trial". See Henderson, 431 US. at 154.
2. California Evidence Code Section 1101(c) makes evidence of
ee et eee ee ae
disposition or propensity on the part of the accused to
crime charged. fata Shetattom 172 CaLApp.3d 484, 495 (1985).
On the other hand, Evidence Code Section 1101(b) makes admissible
evidence of prior acts relevant to prove some fact expressly in issue,
such as the motive, intent, knowledge or identity of the perpetrator
of the crime charged. Whether evidence is relevant under
Section 1101(b) depends additionally on whether its probative value
Outweighs any undue prejudice. People v. Tassell, 36 Cal.3d 77, 88
(1984).
A-35
Examination of the trial record reveals that there was
substantial evidence, however circumstantial, to support
the jury’s finding that the baby’s death was the result of a
murder and that petitioner was responsible. Admission of
prior act evidence did not amount to a “crucial, critical,
highly significant factor" in the jury’s finding of second
degree murder. See Love v. Young, 781 F.2d 1307, 1312-
1313 (7th Cir. 1986). The jury heard evidence that
petitioner was in the house at the time of the baby’s
death and that his wife, the only other person in the
house that day, stepped outside before the baby had been
fatally injured. The jury heard petitioner’s wife testify.
This and other evidence allowed the jury to decide
petitioner was behind the baby’s death notwithstanding
any prior act evidence.
3. Miranda Violation
Petitioner spoke with police and investigators
several times on July 7, the day iat he and his wife
brought their injured baby to the hospital. No Miranda
warnings were given to petitioner before or during any of
these July 7 discussions. On July 8, petitioner was asked
to come to the police station and when he arrived was
given Miranda warnings before questioning took place. At
trial, the prosecution introduced one of petitioner’s
Statements, made on July 8, after Miranda warnings.
Petitioner now urges that this statement was involuntary
and in violation of his Fifth Amendment rights, because
even though it was made after proper administering of
Miranda warnings, it was the fruit of prior illegal
interrogations by investigators.
A-36
Miranda warnings are required whenever a person
questioned is in custody or the restraint on his freedom of
movement is of a degree associated with formal arrest.
California v. Beheler, 463 U.S. 1121, 1123 (1983);
Oregon v. Mathiason, 429 U.S. 492, 494 (1977). Mere
presence at the police station cannot be necessarily
equated with custody. See Beheler, 463 US. at 1123.
Although this Court must independently make the legal
conclusions as to whether a petitioner was in custody at
the time of a statement, and as to whether statements
were voluntary, this Court must presume the correctness
of all state court factual findings, unless there is no factual
support for them in the record. Summer v. Mata,
449 US. 539, 545 (1981).
The state court examined the discussions between
petitioner and investigators voluntarily and while petitioner
was not in custody2/ We find ample support in the
record for this position. No restrictions were placed on
petitioner’s freedom of movement during any of the July 7
discussions, including those taking place at the police
station. Upon accompanying the police officers to the
station on July 7, petitioner was specifically told that he
was not under arrest and was under no obligation to go
there. Because all of the July 7 questioning took place
while pettioner [sic] was not in custody, no Miranda
warnings were required and the July 8 statement used at
trial was not the fruit of prior illegal interrogation.
3. The trial court did not consider the statement made at the
apartment complex to one of the officers that "Maybe some Mexicans
came through the door." However, this statement was also made
voluntarily and while petitioner was not in custody, and does not alter
Our conclusion that all July 7 questioning was noncustodial.
A-37
Petitioner further argues that police used trickery
and deception during the July 7 discussions by withholding
from him information that his baby had died and that he
was a suspect in the death. Petitioner contends that this
deception rendered the July 7 questioning coercive and
tainted the subsequent statement given after Miranda
warnings. This Court finds no support in case law for the
view that trickery or deception render questioning
coercive. Petitioner was told he could refuse to speak
and could request a lawyer and was aware that any
Statement he made could be used against him. Waiver of
his rights on July 8 was thus free and voluntary and the
Statement coming out of the July 8 questioning was
properly introduced against him. See Moran v. Burbine,
106 S.Ct. 1135, 1142 (1986).
4. Prosecutorial Misconduct
Petitioner argues that the prosecutor made several
prejudicial remark» during closing argument which
constituted misconduct and denied him due process of
law. Only one of the allegedly prejudicial statements was
objected to at trial by petitioner’s counsel. That objection
came at the beginning of the prosecutor’s argument,
during which the prosecutor discussed first degree murder
in this second degree murder case. Petitioner’s counsel,
in his state appellate court brief submitted to this Court,
claims that because this objection was overruled, he did
not want to continue to make objections during the
closing argument which would almost certainly be
overruled. The remarks complained of which were not
objected to include: 1) statements implying that
A-38
petitioner’s wife offered testimony which was part of a
defense plot to suborn perjury; 2) statements made that
the crime would go unpunished if the jury believed
petitioner had not commited [sic] the crime because his
wife had been granted immunity; 3) an inflammatory
statement that if the jury believed petitioner, it should
senc him home to pick up his other recently born baby;
4) references made to inflammatory and controversial
cases in an attempt to link the apparent miscarriage of
justice found in those cases to a not guilty verdict for
petitioner.
Under California law, claims of misconduct can
only be reversed on appeal if objected to at trial.
People v. Fosselman, 33 Cal.3d 572, 580-581 (1983).
Under Wainwright v. Sykes, 433 U.S. 72, 87 (1977), the
failure to observe a state’s "contemporaneous objection"
rules results in a procedural default which precludes
habeas corpus relief. The only exception to this default
rule occurs when a petitioner can demonstrate that there
was "cause" for his failure to raise the objection at trial,
and “prejudice” accruing from the failure to object.
Engel v. Isaac, 456 U.S. at 129; see also Hines v. Enemoto,
658 F.2d 667, 673 (9th Cir. 1981). Even where instances
of prosecutorial misconduct are properly objected to at
the state trial, a federal court is limited to determining
solely whether the defendant was denied due process.
Donnelly v. DeChristofoto, 416 U.S. 637, 642 (1974). The
touchstone of due process is the fairness of the trial, not
the misconduct of the prosecutor. Smith v. Phillips,
455 U.S. 209, 219-220 (1982).
Petitioner has effectively defaulted on those
alleged instances of prosecutorial misconduct which were
A-39
not objected to at trial. Failure of counsel to object to a
prosecutor’s statements for the strategic reasons does not
satisfy the "cause" prong of the Sykes standard, and
petitioner’s argument, that his counsel failed to object at
trial because he did not want to be continuously
overruled, amounts to a failure to object for strategic
reasons.. See Hines, 658 F.2d at 673. In addition,
although petitioner has preserved his claim that the
prosecutor’s references to first degree murder in his
closing argument constituted misconduct, petitioner has
made no showing of a constitutional violation. Petitioner —
has not demonstrated that his trial was rendered so
fundamentally unfair by the prosecutor’s remarks that due
process was denied. See U.S. v. Foster, 711 F.2d 871, 883
(1983); Thomas v. Cardwell, 626 F.2d 1375, 1381 (9th Cir.
1980).
5. Denial Of Discovery
In his petition, petitioner argues that the
prosecution’s violation of a discovery order denied him his
constitutional rights to a fair trial4/ The discovery order
in question called for the prosecution to release all
statements made by petitioner to police officers during
any of the questioning preceding trial. Petitioner made a
statement at his apartment in response to Officer Lapic’s
4. This claim is properly before the Court at this time even
though the claim was not included in this Court’s earlier Order to
Show Cause. Petitioner’s counsel has fully briefed the issue for this
Court, and the Court finds that it is able to make a determination of
this claim after careful review of petitioner’s arguments and of the
record before the Court.
A-40
questioning regarding the origin of the baby’s bruises, that
"Maybe some Mexicans came through the door." This
statement was not revealed to the defense before Officer
Lapic testified at trial. Petitioner contends that the
prosecutor’s failure to comply with the discovery order
and reveal the statement before trial violated his due
process rights for two reasons. First, petitioner claims
that the revelation of Officer Lapic’s questioning regarding
the origin of the bruises could have been persuasive to
the trial court at the Motion to Suppress that the
interrogation violated Miranda. According to petitioner,
Officer Lapic’s questioning indicated that the officer knew
the criminal degree of force used upon the body. Second,
petitioner maintains that his lack of awareness of th-
Statement regarding Mexicans left his counsel] "ill-
prepared" to select the jury.
The Court finds that petitioner’s claims lack merit.
Even considering Officer Lapic’s questioning of petitioner,
this Court finds that the interrogation of petitioner did not
violate his Miranda rights. In addition, this Court finds
that counsel’s lack of awareness of petitioner’s statement
did not violate petitioner’s due process right to an
adequate opportunity to voir dire the jury. Therefore,
petitioner is not entitled to relief on his claim for violation
of the discovery order.
Accordingly, good cause appearing, IT IS
HEREBY ORDERED that petitioner’s application for a
writ of habeas corpus is denied.
IT IS FURTHER ORDERED that petitioner’s
motion for reconsideration of application for bail pending
determination of petition for writ of habeas corpus is
denied.
A-41
IT IS SO ORDERED.
DATED: July 15, 1987
THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE
A-42
A
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK OWEN McGUIRE, __)
Plaintiff-Appellant, ) No. 87-2522
)
v. ) D.C. No.
) CV-85-6521-TEH
WAYNE ESTELLE, )
Warden, ) ORDER AND
Defendant-Appellee. ) DISSENT
)
Filed November 23, 1990
Before: Mary M. Schroeder and Charles Wiggins, Circuit
Judges, and Albert Lee Stephens, Jr.~’, District Judge.
ORDER
The panel has voted to deny the petition for
rehearing and reject the suggestion for rehearing en banc.
Judges Kozinski and Trott would grant the suggestion for
rehearing en banc.
*. Hon. Albert Lee Stephens, Jr., United States District Judge for
the Central District of California, sitting by designation.
A-43
The full court has been advised of the suggestion
for an en banc. An active judge requested a vote on
whether to rehear the matter en banc. The request failed
to receive a majority of the votes of the nonrecused active
judges in favor of en banc consideration. Fed.R.App.P. 35.
The petition for rehearing is denied and the
suggestion for rehearing en banc is rejected.
DISSENT
KOZINSKI, Circuit Judge, with whom Circuit
Judge TROTT joins, dissenting from the order rejecting
the suggestion for rehearing en banc.
Six month old Tori McGuire died in a hospital
emergency room, the victim of appalling internal injuries:
her liver was split in half, her pancreas was lacerated and
split apart, her lower right lung and the large vein from
her heart were damaged, and part of her large intestine
was lacerated. No, little Tori was not the victim of a
hideous automobile accident; nor had she been extracted
from the rubble of an earthquake. She had been beaten
to death. Her lifeless body, with dozens of contusions on
her chest and abdomen, was brought to the hospital by
her parents who claimed they didn’t know what could
have happened to her. Perhaps, the father said, "the baby
fell off the couch" or maybe “some Mexicans" broke in
and abused her while he was out of the room. Not taken
in by these transparent falsehoods, the state brought
charges against the father, Mark McGuire. A state jury
convicted him of second degree murder; the conviction
was affirmed on appeal.
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A panel of this court now overturns the
conviction, quite possibly forever. In so doing, it not only
reaches a result that is contrary to simple justice and
common sense, but does so in a way that will seriously
interfere with the authority and autonomy of the state
courts in many other criminal proceedings. Most
fundamentally, the panel overturns the state conviction
because it disagrees with the state court on questions of
state law+/ Worse, the panel punishes the prosecution for
introducing what the court deems to be unnecessary
evidence of the defendant’s intent, even though intent is
clearly an element of the crime with which McGuire was
charged. Finally, the panel misapplies the teachings of
Chapman v. California, 386 U.S. 18 (1967), and United
States v. Hasting, 461 U.S. 499 (1983), by failing to
consider "the entire record prior to reversing a conviction
for constitutional errors that may be harmless." Jd. at 509
n. 7.
This opinion is markedly out of step with the law
of the Supreme Court and this circuit governing these
sensitive and important issues. While en banc procedures
are cumbersome and time consuming, such considerations
Ought not deter us from maintaining uniformity in the law
of the circuit, as well as correcting an obvious miscarriage
1. A similar concern was raised by Blair v. McCarthy, 881 F.2d
602 (9th Cir. 1989, cert. granted, 59 USLW 3210 (Oct 2. 1990)(No. 89-
1862), vacated as moot and remanded _§ USLW ___ (1990), where
the first question presented was: "Has court below improperly and
unduly expanded scope of federal habeas corpus relief by granting
such relief in absence of any federal violation on sole basis of alleged
violation of state procedural rule plus finding that it is ‘reasonably
probable’ that different result would have occurred in absence of state
law error?"
A-45
of justice. Because my colleagues’ decision not to take
this case en banc lets stand what I consider to be a wholly
unacceptable precedent, I must respectfully dissent.
Discussion
Tori McGuire’s short life was the type of horror
no sentient being should have to endure. In addition to
the ghastly injuries that caused her death, the doctors who
examined her discovered some earlier injuries -- rectal
tearing that was at least six weeks old and several partially
healed rib fractures that were approximately seven weeks
old. The prosecution introduced evidence of these earlier
injuries, and the trial court instructed the jury as to the
inferences it could draw therefrom. This evidence and
these instructions lie at the heart of the panel’s decision
to overturn the conviction. A dispassionate review of the
State court proceedings, however, reveals that no error at
all was committed, much less an error of constitutional
dimensions, and that the disputed evidence was, in any
event, not prejudicial given the overwhelming evidence of
McGuire’s guilt.
A. The Panel Second-Guessed The State Courts
On Questions Of State Law
This is not an appeal from a federal criminal
conviction; it is a state habeas corpus case. Our function
is limited to determining whether the petitioner's
constitutional rights were violated. Engle v. Isaac,
456 U.S. 107, 119 (1982); Oxborrow v. Eikenberry, 877 F.2d
1395, 1400 (9th Cir.), cert. denied, 110 S.Ct. 344 (1989);
A-46
Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985),
cert. denied, 478 U.S. 1021 (1986). In making that
determination, we do not review issues of state law, such
as evidentiary rulings; we are bound by the state courts’
interpretations of the law entrusted to them. 7he panel
McGuire’s conviction because it disagrees with the way
the state court resolved questions of state law concerning
the admissibility of evidence and the wording of jury
instructions.
On the evidentiary question, the state trial court
admitted proof of prior injuries for three separate reasons,
one of them being that it tended to establish that Tori
was a battered child, pursuant to a theory known as the
"Battered Child Syndrome." The state court of appeal
affirmed:
[P]roof of Tori’s “prior injuries" tending
to establish the "battered child syndrome"
was patently proper.
People v. McGuire, No. A017800, at 7 (Cal.App. Jan. 15,
1985), citing and discussing People v. Bledsoe, 36 Cal.3d
236 (1984); People v. Jackson, 18 Cal.App.3d 504 (1971);
and Landeros v. Flood, 17 Cal.3d 399 (1976). Our panel
flatly disagrees with this determination:
The trial court incorrectly admitted the
evidence pursuant to California law
allowing past injury evidence to establish
the “Battered Child Syndrome." The
Battered Child Syndrome allows proof of
past injuries to prove the child’s present
injuries did not occur accidentally. See
People v. Jackson, 18 Cal.App.3d 504, 506,
A-47
95 Cal.Rptr. 919, 921 (1971); Landeros v.
Flood, 17 Cal.3d 399, 409, 551 P.2d 389,
393, 131 Cal.Rptr. 69, 73 (1976).
901 F.2d at 754 (emphasis added).
What can one possibly say about this? The panel
not only expressly states that the state court erroncously
admitted the evidence “pursuant to California law," but it
relies on two of the same cases that the state court of
appeal relied on in reaching the opposite conclusion.
Until reading the panel’s opinion, I had thought the
federal courts were bound by state court interpretations
of the state rules of evidence. Apparently, however, the
panel has now declared open season on state court
evidentiary rulings in the Ninth Circuit.
The panel makes precisely the same mistake when
it concludes that "[s]ubsection 3 of the [prior bad acts]
instruction is erroneous." 902 F.2d at 755. The panel’s
only explanation for this conclusion appears in a footnote:
It appears that the trial court’s erroneous
instruction was the result of an incorrect
reading of CALJIC 2.50 (1979 Revision).
This standard jury instruction has been
clarified to avoid the misunderstanding
which occurred here. See CALJIC 2.50
(1987 Revision).
Id. at 755 n. 2. Once again, the panel cites only state law
in support of its conclusion that the state courts
committed error.
The panel does ultimately conclude that "the
faulty instruction considered along with the admittance of
the prejudicial evidence ‘so infected the entire trial that
the resulting conviction violate[d] due process.” 902 F.2d
A-48
at 755 (quoting Cupp v. Naughten, 414 US. 141, 147
(1973)). This reference to the due process clause does
not repair the damage done by the panel’s earlier analysis.
The problem is that, in order to conclude that there was
a due process violation, one must first determine that the
state trial court erred. The panel made that initial
determination by relying almost exclusively on state law,
which it reads in a way directly contrary to the state
court’s reading.?/
B. Evidence Of Intent Was Proper And Necessary
In concluding that the evidence of prior injuries
was improperly admitted, the panel suggests that the
evidence was not relevant. Jd. at 754. As discussed
above, the pane] had no business second-guessing the
state courts on a question of state law. Having started
down this path, however, the panel makes a collateral
error, One with grave constitutional implications.
As the pane! recognized, evidence is admitted
pursuant to the Battered Child Syndrome theory to prove
that the death was not accidental. Jd. If the child has
754
States v. Lewis, 837 F.2d 415 (9th Cir.) cert. denied, 488 U.S. 923
(1988)); Id. at 755 (citing FRE 404(
United States v. Green, 648 F.2d 587, 594 (9th Cir. 1981)). The
Federal Rules of Evidence, the Advisory Committee notes, and federal
criminal cases are, of course, wholly irrelevant to a state habeas case,
where the only issue is whether the trial violated constitutional norms.
The panel's opinion in this case could well be construed as giving the
Federal Rules of Evidence a constitutional cast. See id at 755.
A-49
:
suffered a series of injuries as the result of child abuse,
this tends to make it less likely that the injury in question
resulted from a mishap. People v. Jackson, 18 Cal.3d 504,
507, 95 Cal.Rptr. 919, 921 (1971). The panel concludes
that the evidence of prior injuries was irrelevant because
"in the instant case, no claim was made that the child died
accidentally." Jd. According to the panel, the only issue
at trial was who kilied Tori, not whether the killing was
intentional. ;
This passage in the panel’s opinion has serious
implications: It suggests that due process may be violated
by the admission of evidence which clearly goes to an
element of the offense charged if it turns out that the
defense does not put that particular element in issue.
This reasoning, if it stands as the law of the circuit, will
present state prosecutors with an intractable problem:
Just how are they to know whether the defendant intends
to put a particular element of the crime in issue? After
all, the prosecution must go first and bears the burden of
establishing every element of the crime beyond a
reasonable doubt -- including, for second degree murder,
malice aforethought, Cal. Penal Code §$§ 187, 189 (West
1988). If the prosecution decides not to present proof of
any element of the crime on the theory that the defense
will not put that element in issue, the defendant
automatically becomes entitled to a directed verdict of
acquittal. James W. Moore and Jo D. Lucas, 5A Moore’s
Federal Practice 1 50.02[1] at 50-16.1 to 50-17 (2d ed.
1990). The simple reality is that, in a criminal case, every
element of the crime is in issue; the defense is free to sit
back and see how the prosecution’s case shapes up, and
then focus its attack where the prosecution is weakest.
A-50
The panel’s insistence that intent was not an issue
in the case is contradicted not only by elementary
principles of criminal procedure, but by the record in this
case as well. As the panel recognizes, McGuire at one
time claime .i¢ baby was injured when she fell off
the couch. _ 4.2d at 751. He later suggested that
"maybe some Mexicans came in while I was upstairs." Id.
How on earth was the prosecutor to know that McGuire
would not raise one of these defenses when his turn came
to put on evidence?"/ More fundamentally, if the
prosecutor decided to play it safe by introducing evidence
in addition to the fatal injuries to prove that the death
was not accidental, how can we say that the evidence was
irrelevant? For the panel to look at the evidence after
the case was closed and say that the prosecutor was too
cautious in proving every element of the offense is nothing
but 20/20 hindsight*/
3. Indeed, early in the trial the prosecutor advised the court that
he anticipated the defense would rely primarily on the "some
Mexicans" theory, with “try[ing] to hang it on momma” a less likely
alternative. Reporter’s Transcript on Appeal, People of the State of
California v. McGuire, H 3748 (RT) 213-24 (Book II).
4. As it turns out, the defense did raise the issue of intent, and
very vigorously. Defense counsel objected to a jury instruction on
second degree murder, stating "I don’t think there is evidence of
intent." RT 562 (Book V). She requested an involuntary
manslaughter instruction, stating “my contention is that whoever killed
the baby or hit the baby had no malice, had no intent to kill the
baby." RT 619. With the agreement of both sides, the court
instructed the jury that "[t}he unintentional killing of a human being
is excusable and not unlawful when committed by accident,” and that
"[tJhe burden is on the Prosecution to prove beyond a reasonable
doubt that the homicide was not excusable." RT 762. During her
closing argument, defense counsel argued that the prosecution had
failed to establish intent: “Involuntary manslaughter . . . is an
A-51
What are state prosecutors in the Ninth Circuit
supposed to do when presented with a situation such as
that here? On the one hand, they face the possibility of
a directed verdict or unfavorable jury instruction if they
fail to prove an element of the case that somehow seems
"obvious." On the other hand, under today’s precedent,
they face the possibility that a federal court -- with the
benefit of hindsight -- will conclude that the evidence was
not really necessary because that particular element of the
crime was not contested by the defense. It is obvious that
the McGuire prosecutor could not have guarded against
this type of whipsaw; more troubling is that, even with
today’s precedent in hand, no prosecutor will know when
to withhold evidence or when to include it until he sees
the defendant’s evidence, by which time it will be too late.
In common parlance, this is known as a Catch-22.
C. Panel's Harmless Error Analysis Is Defici
It is well established that errors, even
constitutional ones, do not warrant overturning a state
conviction unless it is determined that the errors are not
unlawful killing of a human being where there is no intent to kill and
no malice. That is what we have here, if anything.” RT 720. See
also RT 718-19. In McGuire’s motion for a new trial after the
verdict came in, defense counsel asserted that the trial court had
erroneously failed to instruct the jury on the requirement of specific
intent. Clerk’s Transcript on Appeal, The People of the State of
California v. McGuire, H 3748 (CT) 155. Thus, while the panel
appears to have labored under the misapprehension that McGuire had
conceded or stipulated to intent, defense counsel was well aware of
the state’s burden of proof as to McGuire’s state of mind, and pressed
the issue forcefully.
A-52
harmless. Chapman v. California, 386 U.S. 18-33 (1967).
Except where the error is so fundamental that it is
deemed harmful per se, which is not the case here, the
federal court must examine the entire state court record to
determine whether the jury would have reached a
different conclusion absent the error. United States v.
Hasting, 461 U.S. 499, 509 n. 7 (1983).
The panel here speaks the language of harmless
error analysis but fails to perform the tasks associated
therewith. The sum and substance of the panel’s harmless
error “analysis” is the following: "Although there was
evidence suggesting McGuire’s guilt, this evidence was
certainly not overwhelming." 902 F.2d at 755. The panel
does not state that it has reviewed, or even seen the state
court record; it does not discuss the evidence supporting
guilt; and it does not analyze how the trial would have
played out had the perceived errors been eliminated.
Harmless error analysis that is so utterly devoid of analysis
is no better than no harmless error analysis at all. At a
bare minimum, it seems to me, the panel must represent
that it has ordered the state court record, looked at it,
and undertaken the type of review mandated by the
Supreme Court.
Quite frankly, it is impossible to review the record
in this case and understand how the panel reached its
conclusion. Take, for example, the error perceived by the
pane] as to the admission of the evidence under the
Battered Child Syndrome. Even if the panel were correct
in concluding that the evidence was improperly admitted
for this purpose, it does not matter. The trial court found
the evidence of prior injuries admissible for three distinct
purposes: (1) to establish the existence of Battered Child
A-53
Syndrome; (2) to show that McGuire had committed
similar prior bad acts;/ and (3) to impeach
Mrs. McGuire’s testimony that Mr. McGuire was kind to
his daughter. RT 573-75 (Book V), 757. The state court
of appeal found the evidence admissible on the first of
these grounds, and so did not reach the other two.
People v. McGuire, No. A017800, at 5-7 (Cal.App. Jan. 15,
1985).
Where a trial court admits evidence for three
independent reasons, and we find one of them insufficient,
our job is hardly done£ All evidence is admissible for
some purposes but inadmissible for others; we could
reverse convictions any time we liked were we to focus on
one purpose exclusively. Here, the pane! not find the
evidence was inadmissible on the other two grounds;
therefore, it is bound to assume that the evidence would
have been admitted in any event. In light of the
indisputable record on this point, | fail to see how
McGuire suffered any prejudice from the alleged error
5. The trial court treated Battered Child Syndrome and prior
bad acts as separate evidentiary categories; it may be more-accurate
to say that evidence of Battered Child Syndrome is a subset of
evidence of prior bad acts. For our purposes it makes no difference:
A finding that evidence is inadmissible to prove Battered Child
Syndrome says nothing about whether the evidence may be admitted
for the broader purpose of showing prior bad acts.
6. That the state court of appeal only considered one ground for
admission is not, of course, dispositive. Having found the evidence
admissible on one ground, the court of appeal had no need to
examine whether the evidence was admissible on other grounds as
well. To find the evidence inadmissible -- and so highly prejudicial
as tO constitute a due violation -- we must make sure that it
is not in fact admissible on any of the grounds relied on by the trial
court.
A-54
Sw eo
regarding admission of evidence of the Battered Child
Syndrome, much less a denial of due process.
But there is more. Even were we to assume, with
the panel, that admission of the evidence was prejudicial
error, the panel was required to decide whether the jury
would have convicted anyway. See United States v.
Hasting, 461 U.S. at 510-11. A determination on this issue
required the panel to weigh the prosecution’s case, the
likely effect of the wrongfully admitted evidence and the
likelihood that the jury would have come to a different
result. A review of the record leads only to one
conclusion: The jury would have reached exactly the
same verdict regardless of the errors perceived by the
panel.
First, the record discloses that the prosecution’s
case was very strong indeed. In weighing the strength of
that evidence, it must be kept in mind that there were
only two plausible theories of the case: that the father
abused Tori or that the mother did; no one else had
access to the baby immediately prior to her death. While
the 1500 page trial transcript contains a good deal of
testimony establishing that the father did it, perhaps the
strongest piece of evidence is the testimony of several
witnesses who overheard a conversation between Mr. and
Mrs. McGuire at the hospital while the couple was waiting
to learn Tori’s fate:
While Tori was being treated, and
McGuire and his wife were seated
together in a hospital waiting room,
Mrs. McGuire several times insistently
asked "what really happened?" McGuire
replied that he "didn’t know," and that he
A-55
"guessed" the baby fell off the couch; his
response was always the same. Finally
Mrs. McGuire said, "You are responsible,"
to which he apparently made no reply.
People v. McGuire, No. A017800, at 3 (Cal.App. Jan. 15,
1985).
This conversation makes no sense at all unless it
was the father who abused the baby. Had the baby been
alone with the mother at the time she suffered the
injuries, as Mrs. McGuire claimed at trial, one would have
expected the accusations at the hospital to point entirely
the other way. Not only did McGuire fail to question or
accuse his wife, he lamely suggested the baby "fell off the
couch" and did not protest her accusation that "you are
responsible." Short of a videotape of the crime, it’s not
clear what better evidence the prosecution might have
presented.
The fact is, child abuse cases are inherently
difficult to prove: the evidence is usually circumstantial
and often ambiguous; eyewitnesses seldom come forward
because of family considerations; and the victims often are
dead or too young to speak. See, for example, United
States v. Boise, No. 89-30071, slip op at 12157 (9th Cir.
September 27, 1990). It is rare indeed to have a case like
this one, where the defendant makes what is tantamount
to a spontaneous confession of his guilt. When this
conversation is viewed in the context of all the other
evidence presented to the jury, see People v. McGuire at
2-4, one must conclude that the prosecution’s case was
extremely strong.
Second, the prejudice flowing from any error
would have been minimal. If I understand the panel’s
A-56
rationale correctly, it is that the prosecution failed to
sufficiently prove McGuire’s connection to the earlier acts
of child abuse. Even if that were true -- which it clearly
is not’ - how was the defendant prejudiced? Evidence
of the earlier abuse could only harm the defendant to the
extent the jury was convinced he committed those acts. If
the jury was in doubt, or believed that someone else (for
example, Mrs. McGuire) committed the bad acts, its
outrage over them would not have been directed at Mark
McGuire.
Finally, it is highly unlikely that, absent the error,
the jury would have reached a not guilty verdict because
to do so it would have had to adopt the defense’s
alternative theory -- that the mother did it.
7. The record contains ample evidence from which a rational
jury could conclude that McGuire had been the perpetrator of the
earlier injuries:
-- Mrs. McGuire’s statements to Detective Gillis
to the effect that, when she bathed Tori, she
noticed the child had bruises on her body. When
asked how Tori might have gotten those bruises,
Daisy responded:
McGuire: | don’t really know, you know, I am
not the only one who is taking care of her.
Gillis: Well, who else is taking care of her?
McGuire: My husband, too, takes care of her.
-- Testimony by a neighbor "that she had observed
McGuire pick up the infant by ‘one of her arms.’
She had also seen him, when the baby was crying,
roughly pinch her cheeks together, and do other
‘bad things.’ Mrs. McGuire, the witness said, was
a ‘very caring mother’ toward Tori, who was never
seen to ‘abuse the child’ in any way."
People v. McGuire, No. A017800, at 4 (Cal. App. Jan. 15, 1985).
-- The fact that one of the injuries -- rectal
tearing -- is sexual in nature, and of a type more
likely made by a man than a woman.
A-57
Mrs. McGuire’s “confession,” made only after she was
granted immunity and had the luxury of attempting to
save her husband at no risk to herself, is halting and
tentative, marked by evasion and lapses of memory.
RT 333-39, 341-42, 351-58, 364, 385. It is also internally
inconsistent, RT 353-56; contradicted by her earlier
statements to the police and at the preliminary hearing,
RT 370-75, 410-11, and by Mr. McGuire’s own statements
to the police, RT 209-10 (Book II), 251 (Book III); and
inconsistent with the weight of the medical evidence.*/
The jury deliberated for three days and had extended
passages of the trial transcript read back to it, including
large portions of Mrs. McGuire’s testimony. RT 254A
(Book I), 777. This jury was clearly not inflamed by
passion. McGuire got no worse than he deserved.
It is this type of inquiry, or something akin to it,
that the panel was required to pursue under Chapman.
Its unsubstantiated assertion that the evidence against
McGuire “was certainly not overwhelming” simply does not
do the job.
8 Mrs. McGuire claimed to have killed the Daby some time in
the afternoon, “[a] long time” before her returned home.
RT 353; see also RT 348; but see RT 356 (“I child when he,
shortly before he comes home on that evening") The infant most
likely died within minutes of having been beaten. RT 139-140
(Book II). Yet when the McGuires took the baby to the hospital at
nine in the evening, RT 87 (Book II), the doctors believed they had
a chance of resuscitating the child because irreversible brain swelling
had not yet begun, indicating that her death was very recent. RT 86,
98-99, 169-71 (Book II).
A-58
D. Reprosecution Of McGuire May Be
Precluded
When a federal court grants a writ of habeas
corpus, the state normally has the option of retrying the
defendant. This is not the case, however, when there is
a determination that the prosecution failed to meet its
burden of proof on any element of the offense; under
those circumstances, retrial is barred by the double
jeopardy clause. Burks v. United States, 437 U.S. 1 (1978).
While the point is not entirely free from doubt,
the opinion contains statements that could well preclude
retrial of McGuire. Specifically, the panel casts aspersions
on the prosecution’s case by stating that "only the barest
threads connect McGuire to the crime." 902 F.2d at 755.
Worse still, the panel characterizes the state’s evidence as
suggesting no more than "mere shadows of guilt which
leave ample room for reasonable doubt." Id. at 756
(emphasis added).
It is entirely possible that the state courts on
remand will read these passages as holding that the
prosecution failed to introduce sufficient evidence to meet
its constitutional burden of establishing guilt beyond a
reasonable doubt. Certainly it would be difficult to come
up with language more clearly conveying this idea than
that used by the panel. If the state court does construe
the panel’s opinion as precluding a retrial, there will be
no possibility of correcting the error. Once McGuire is
released, the prosecution has no mechanism for coming
into federal court to complain, as the state is not entitled
to collaterally attack the state judgment.
A-59
Conclusion
The panel has overturned a state conviction, and
has done so in a manner that seriously and unjustifiably
interferes with the authority of the state courts, hamstrings
state prosecutors and may result in the permanent release
of a defendant who was justly and properly convicted of
a heinous crime. We make a grave mistake by failing to
take the case en banc to correct these errors and set the
aw of the circuit back on course.
&
A-60
APPENDIX E
“ > > a) wen: — 1S we a ave eles” Be
ee et eye va eee Pees a tee oh oe epee) ee a eee
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE OF THE )
STATE OF CALIFORNIA, ) FILED: 12/10/87
)
Plaintiff and Respondent, ) A017800
)
v. ) (Alameda County
Super. Ct.
MARK O. McGUIRE, No. H 3748)
)
)
)
Defendant and Appellant. )
)
Defendant Mark O. McGuire was convicted by a
jury’s verdict of the second degree murder of his six-
month old infant daughter, Tori. He appeals from the
judgment which was entered upon the jury’s verdict.
We affirm the judgment for the reasons we now
State.
Evidence adduced at the trial, presumably found
true by the jury, revealed the following.
Defendant McGuire, and his wife, Daisy, brought
their infant child Tori into the emergency room of an
Alameda County hospital one evening. The child was
bluish in color, not breathing, and bruises appeared upon
A-61
her body. Her father, McGuire, explained that Tori
suffered recently from a cold, and had that evening
injured herself when she fell from a couch. Prompt
medical measures of doctors and nurses were unavailing,
and Tori died within the hour.
McGuire was thereafter charged with the murder
of the child.
Expert medical witnesses at the trial testified to
the following. When Tori was brought to the hospital, she
indicated little or no signs of life, her body was cool, and
she showed no heartbeat or pulse. She had a "relatively
recent" bruise on her chest, with older multiple bruises
around it. And there were blue marks on the infant’s
ears, and scar tissue indicating a tearing wound of her
rectum.
An autopsy on Tori disclosed at least 17 separate
contusions on her chest and around 30 in her abdominal
area. There were “quite fresh," and suggested "perhaps
the knuckles or fists striking the skin." An examination of
her internal organs revealed that her liver had been split
in two, her pancreas was lacerated and almost torn in
half, her right lung and a large vein near the heart were
damaged, and her lower intestine was lacerated. And she
had several partially healed rib fractures. Such injuries
appeared to have been caused by the same force or blows
which caused the outer injuries. The injuries could not
have been caused by a fall from a couch; and nothing but
the application of "blunt force to this child" could have
caused them. A medical witness said: "I don’t think you
can separate injuries, one from another, those types of
injuries. A tremendous number of contusions al] over the
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front of the body, the neck area, and the injuries to the
abdomen are totally inconsistent with falling even 16 feet."
The child’s rectal injury was at least six weeks old,
and was unlikely to have been caused by passage of hard
stools; more likely it was caused by "the forceful insertion
of a finger, or foreign object, or both."
The consensus of the People’s professional
medical witnesses was that Tori was a "battered child."
Tori had been in the custody of McGuire and her
mother during the entire six months of her life.
While Tori was being treated, and McGuire and
his wife were seated together in a hospital waiting room,
Mrs. McGuire several times insistently asked "what really
happened?" McGuire replied that he "didn’t know," and
that he "guessed" the baby fell off the couch; his response
was always the same. Finally Mrs. McGuire said, "You
are responsible," to which he apparently made no reply.
To police officers McGuire explained that "the
baby must have fallen and struck the walker." And when
an officer expressed doubt that her condition was
consistent with a fall, McGuire said “maybe some
Mexicans came in."
McGuire denied striking or abusing the child.
Mrs. McGuire testified at the trial. For the first
time, there she said that she had been mad at Tori
because of her crying, and had hit her on the day of the
baby’s death.
A neighbor of the McGuires, in the same
apartment building, testified at the trial to matters
Occurring before Tori’s death. She had “heard some
ruckus and normally at that time there is just doors
Closing and cars starting up to go to work, but this time I
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heard noises, voices saying please don’t, please don’t, I got
up and looked out my bedroom window and I saw Mark
[McGuire] having Daisy [McGuire] up against the wall
with his legs to her stomach, choking her and she is trying
to pull away." On another occasion Daisy appeared
"rather upset and she had looked as if she was crying
because I saw the tears from her eyes. [She said that
Mark had] hit her across the face."
The neighbor testified also that she had observed
McGuire pick up the infant by “one of her arms." She
had also seen him, when the baby was crying, roughly
pinch her cheeks together, and do other “bad things."
Mrs. McGuire, the witness said, was a "very caring
mother" toward Tori, who was never seen to “abuse the
child" in any way.
And evidence indicated that McGuire and his wife
were the only persons with Tori on the day of her death.
We state McGuire’s several appellate contentions
as phrased by him.
I. Contention: “The trial court erred in admitting
evidence of prior injuries which were in no way tied to
appellant."
It was the People’s theory that Tori’s death was
brought about by McGuire’s "child battering,” which
culminated in the events of the day of her death. And
proof of the "battered child syndrome," has expressly been
held admissible in this state.
A leading case on the subject, Landeros v. Flood,
17 Cal.3d 399, 408, has stated: "It appears from the
literature that the battered child syndrome was first
tentatively identified and reported to the medical
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profession in the early 1950s. Further surveys and
analyses of the syndrome followed. ... California courts
have not been oblivious to this development. In a
prosecution for child abuse reviewed in 1971 -- the same
year as the events here in issue -- the Court of Appeal
held admissible the testimony of a physician identifying
the typical elements of the battered child syndrome.
(People v. Jackson .(1971) 18 Cal.App.3d 504, 506
(95 Cal.Rptr. 919].) The court explained that a
physician’s diagnosis of battered child syndrome essentially
means that the victim’s injuries were not inflicted by
accidental means, and “This conclusion is based upon an
extensive study of the subject by medical science.’ (Jd., at
p. 507.) Citing portions of the literature referred to
hereinabove, the court concluded (ibid.) that ‘the diagnosis
of the “battered child syndrome" has become an accepted
medical diagnosis.’ (Italics added.) Indeed, the Court of
Appeal added that ‘Trial courts have long recognized the
“battered child syndrome" and it has been accepted as a
legally qualified diagnosis on the trial court level for some
_ time....’ (Ud, at pp. 507-508; . . .)"
And more recently the high court in People v.
Bledsoe, 36 Cal.3d 236, 249, has said: "In People v.
Jackson [18 Cal.App.3d 504] -- the first such case in
California -- the court explained that ‘[t]his syndrome
means that a child has received repeated and/or serious
injuries by non-accidental means. ... [T]he criteria for
the "battered child syndrome" . . . are (1) the child is
usually under three years of age; (2) there is evidence of
bone injury at different times; (3) there are subdural
hematomas with or without skull fractures; (4) there is a
seriously injured child who does not have a history given
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———— eee
that fits the injuries; (5) there is evidence of soft tissue
injury; (6) there is evidence of neglect... [1] A finding
... Of the "battered child syndrome" . . . simply indicates
that a child found with the injuries outlined above has not
suffered those injuries by accidental means.’
(18 Cal.App.3d at pp. 506-507.) As this description
suggests, the battered child syndrome cases fall well within
the mainstream of a long line of California decisions
which permit an expert medical witness to give an opinion
of the cause of a particular injury on the basis of the
expert’s deduction from the appearance of the injury
itself... ."
Under this authority, proof of Tori’s "prior
injuries" tending to establish the "battered child syndrome"
was patently proper.
Il. Contention: "Mistrial should have been granted when
the highly inflammatory ‘Mexican intruder’ statement was
elicited at trial." |
McGuire argues that disclosure of the
"inflammatory Mexican intruder statement” was not timely
made to him under the trial court’s discovery order.
_As earlier noted, a uniformed police officer, not
assigned to investigate the case, had commented to
McGuire that the child’s injuries seemed inconsistent with
a fall from the couch. It was then that McGuire said,
"maybe some Mexicans came in." The officer, believing
the remark of no importance, made no note or report of
it, and the prosecutor did not learn of the remark until a
few minutes before it was offered in evidence at midtrial.
The remark was relevant evidence, susceptible of an
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inference that such an absurd explanation might indicate
a consciousness of guilt.
The trial court, following a hearing, concluded
that there had been no intentional violation of the
discovery order, and that the evidence’s tardy disclosure
was excused. The following courtroom colloquy took
place.
"The Court: Let me ask you this. Since he didn’t
have this information before and didn’t have an
opportunity to give you this discovery before, if you have
got a surprise element, then what do we need to enable
you to deal with this situation? ... If you need some
time to do some investigation or check anything else out
brought out of the surprise element, I am willing to give
you that. But as far as if you want to wait until your
cross-examination and have somebody check something
out or do anything, I am willing to accommodate you that
way.
"Ms. Simpson [defense attorney]: I would be
asking for some kind of instruction.
| "The Court: Before we do that, why don’t you do
your investigation or whatever it is, if you are asking for
time, then let’s deal with it and then when we come back
then we can decide how to best handle it. It may be
something that you are going to get anyway in the natural
course of things. If you could have gotten it in the
natural course of things, then it may not be that
damaging... . I feel .iat if there is a need for you to
have further time to investigate into the origin and scope
of this comment that is alleged to be made by your client,
then I am willing to accommodate you.
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"Ms. Simpson: I would.iike..to have that
opportunity.
"The Court: Okay. -.Can you do that by
tomorrow morning?
"Ms. Simpson: I think I"protubly<can."
We perceive neither abuse of:disctetion,nor error,
in the trial court’s resolution of thé problem.
III. Contention: “The trial court -erred in admitting
appellant’s statement which was the: fruit of an
unconstitutional interrogation."
On the evening of Tori’s death, police officers,
investigating the case, had questioned both McGuire and
his wife. At that point McGuire was’nort under arrest or
in custody; he had been so informed and the police had
no intention of arresting:.him. And the Miranda
admonition was not given. The couple were then asked
to come to the police station thé following day, and the
decision to appear was theirs. “ Both parties “readily
agreed." But by the time of their police station visit the
next day, suspicion had focused oh-McGuire. Before any
questioning, he was given-.an appropriate Miranda
admonition, and the parties:. reiterated:“their earlier
statements.
McGuire’s instant argument is thatthe first police
inquiry was in violation of Mianda,.iand that his
subsequent Mirandized statements, offered in evidence at
the trial, were its unconstitutional "fruits." _ The superior
court had disagreed.
"{T]he trial court’s ruling on a‘Mirunda issue may
not be set aside by us unless it is ‘palpably erroneous.”
(In re Eric J., 25 Cal.3d 522, 527.)
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“custodial interrogation." In Oregon v. Mathiason
429 U.S. 492, 494-495, the nation’s high court stated: _
“Our decision in Miranda set forti: rules of police
Procedure applicable to ‘custodial interrogation.’ “By
custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way.’ 384 US. at 444,
Subsequently we have found the Miranda principle
applicable to questioning which takes place in a prison
setting during a suspect's term of imprisonment on a
separate offense. Mathis v. United States, 391 U.S. (1968),
eras eeesuoning taking place in a suspect's home, after
arrested and is no
he pleases... ." nee SD pp chee
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IV. Contention: “Prosecutorial misconduct was s0
prejudicial that appellant was denied a fair trial."
McGuire makes four assignments of such
misconduct.
It is first argued that the prosecutor charged in
his jury argument, that Mrs. McGuire’s “confession” that
she had “hit" Tori on the date of the child’s death, was
fabricated. Such a statement had some record support.
It was accordingly not misconduct.
It is also argued that “the D.A. implied that court
rulings were incorrect." We find nothing in the record
reasonably supportive of the argument. And the
prosecutor’s reference to first degree murder was patently
harmless, for, as noted, the jury’s verdict was of second
degree murder.
Moreover, we note that as to three of the four
assignments, no trial court objection was made, and that
as to all of them no alleviating jury admonition, which
sought. The misconduct charges are for those reasons not
cognizable on appeal. (People v. Green, 27 Cal.3d a, 27-
36.) And as said in People v. Fosselman, 33 Cal.3d 572,
581: "{G]enerally such [claims of misconduct] are deemed
waived if the defendant does not object to them at
trial.... He may raise the issue for the first time on
appeal only if the trial court could not have cured the
harm flowing from the misconduct by a prompt
admonition to the jury.... In the present case the harm
could have been cured by timely warnings, and hence
defendant may not now be heard to complain.”
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The judgment is affirmed.
WE CONCUR:
Elkington, Acting P-J.
Holmdahl, J.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.