Petition for Writ of Certiorari — Morales v. Campbell
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Supreme
p Mm (Court U.S.
10-527 OCT 15 2010
din the
Supreme Court of the Hnited States
HAROLD MORALES,
Petitioner,
ROSANNE CAMPBELL, Warden, Mule Creek State Prison,
and PEOPLE OF THE STATE OF CALIFORNIA,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Robert Joseph. Beles California Bar no. 41993
Paul Gilruth. McCarthy California Bar no. 189497
1 Kaiser Plaza, Suite 2300
Oakland, California 94612-3642
Tel. No. (510) 836-0100
Fax No. (510) 832-3690
Counsel for Petitioner
QUESTIONS PRESENTED FOR REVIEW
1. Is this Court’s decision in Giles v. California, — U.S. —, 128
S. Ct. 2678; 171 L. Ed. 2d 488 (2008) retroactive to the time
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.
Ed. 2d 177 (2004) was decided?
2. Assuming this Court’s decision in Giles v. California is
retroactive to the time Crawford v. Washington was decided,
where Crawford was decided while petitioner’s direct appeal
was still pending, would Giles be applicable to his case?
3. Were the homicide victim’s prior complaints to four law
enforcement officers that petitioner wished to harm or kill her
“testimonial hearsay” under the Sixth and Fourteenth
Amendment within the meaning of Crawford v. Washington
and Giles v. California, which could not be introduced into
evidence absent a prior defense opportunity to cross-examine
the victim?
4. Assuming this Court’s decision in Giles v. California is
retroactive to the time Crawford v. Washington was decided,
was the California Court of Appeal’s decision that petitioner
had forfeited his right to cross-examine the victim because he
allegedly killed the victim contrary to or an unreasonable
application of Giles v. California, where there was no evidence
that petitioner killed the victim to prevent her from testifying?
5. Assuming that this Court’s decision in Giles v. California is
not retroactive to the time of Crawford v. Washington, was the
Court of Appeal’s decision that petitioner had forfeited his
right to cross-examine the victim because he allegedly killed
the victim contrary to or an unreasonable application of
Crawford v. Washington, in that Crawford established that this
Court will not recognize any exception to the confrontation
clause that did not exist at the time of the founding of the
Constitution and the Court of Appeal made no attempt to show
that its version of the forfeiture by wrongdoing rule existed at
the time of the founding of the Constitution?
6. Were the admission of the statements subject to the
harmless error rule, and if so, was such admission harmless?
LIST OF ALL PARTIES
Petitioner
HAROLD MORALES.
Respondents
ROSANNE CAMPBELL, Warden, Mule Creek State Prison.
PEOPLE OF THE STATE OF CALIFORNIA.
TABLE OF CONTENTS AND TABLE OF AUTHORITIES
Table of Contents
section page number
QUESTIONS PRESENTED FOR REVIEW ................0-. i
RAT OF ART PATO qc oo cke 4 554 a ee ee il
TABLE OF CONTENTS AND TABLE OF AUTHORITIES ....... ili
Tels OF COMERS ok. ois 6 098 4S eee ee iil
Table of AuscnOVtIOS jw ww 5 5 oc 0 0k 05 os 0 esa Vil
CITATIONS OF THE OFFICLAL AND UNOFFICIAL REPORTS OF THE
OPINIONS AND ORDERS ENTERED IN THE CASE BY COURTS OR
ADMINISTRATIVE AGENCIES, ......... 0c cncvccccccccceee 1
BASIS FOR JURISDICTION IN THE SUPREME COURT......... 1
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ... J
United States Constitution ......ccscvccnvsnnwtes 1
Pemeren TINE ong kk 8b 0% KAGE Oa wo eee 2
Biate Bias go kh 8 oe eee 2
STATEMENT OF THE CASE, INCLUDING BASIS OF JURISDICTION IN
TAT CID Cn ck oo ks ER ee 6
iil
section page number
1. Basis of jurisdiction in federal court .............. 6
2. Related and similar cases .................2.42- 6
S. Btatement of the UMee .. .. ho ccc secan |
a. Facts of Conviction and Custody. .............. 7
Ch, Fe AE SPT es hr Se 7
i. Witnesses to the crime ..................5. 7
ik. SCROTAEAING OVIGOTICE kk oe is ee eee 9
ili. Nelva’s prior complaints
to IAW OMTOTCOIMONE. . 0. ce cece eee eies 10
iv. Cothner testimony. . wn occ ev ersenes 12
eg ys ae 14
vi. The trial court’s decision. ..........0.0.00. 15
c. Proceedings in the direct appeal. ............. 17
d. Proceedings in the federal courts. ............ 17
section page number
NE art C02 eat tate aaasaa eng ahs ake eae re ees 19
1. The Supreme Court should grant certiorari because
of the exceptional importance of determining the
retroactivity of its decision in Giles v. California, —
US. —, 1288S. Ct. 2678; 171 L. Ed. 2d 488 (2008). ... 19
2. Crawford applies to petitioner. ................. 20
3. Nelva’s statements to the four law enforcement
officers were “testimonial.” ...................e-. 21
4. Giles v. California is retroactive to the time of
So NRCS SAD Ae TREO yO gm PR ect ae ds ea ar we 21
a. Crawford established the rule that Confrontation
Clause exceptions would not be recognized unless
they existed at the time of the founding. ......... 21
b. Giles v. California was simply an application of
Crawford’s principle of analysis to the forfeiture by
wrongdoing Confrontation Clause exception. ..... 22
c. By treating the “purposeful” version of the
forfeiture by wrongdoing rule as established law,
and California’s version of the rule as a very recent
departure, Giles implies retroactivity ........... 23
d. In determining that Giles v. California stated a
“new rule”, the Ninth Circuit improperly relied on
cases that failed to foliow the historical analysis
principles dictated by Crawford. .............. 30
5. The erroneous admission of the prior statements was
either not subject to the harmless error rule or was not
ee ee ew euenneseeas 35
ed 4 ale ca-b ae Noa eee 37
ee a ae 6 WS Oa ew welees A-]
1. Opinions, Orders, Findings of Fact, and Conclusions
of Law, Whether Written or Orally Given and
Transcribed, Entered in Conjunction with the Judgment
Sought to Be Reviewed .............ccceecveces A-i
2. Any Other Opinions, Orders, Findings of Fact, and
Conclusions of Law Entered in the Case by Courts or
Administrative Agencies ...........ccccsvcccens A-4
a. District Court opinion .............00s000. A-4
b. California Court of Appeal Opinion ........ A-57
vi
Table of Authorities
cases page number
Caspari v. Bohlen, 510 U.S. 383, 114 S. Ct. 948,
Dire Bes Ws ED kb 5 ooo eon wks brdensenare 32
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1854,
158 L. Ed. 2d 177 (2004) ...... i, ii, 17, 19-23, 26, 28, 30-33
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266,
RUee Ba. Wes WE EC) nk cee cece esac rcioneres 21
Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431,
Be Ba. BO, TO CRD neck eect ect eccicceciceseer 36
Giles v. California, — U.S. —, 128 S. Ct. 2678;
171 L. Ed. 2d 488 (2008) ... i, 6, 18-23, 25, 27, 29-31, 33, 34
Harrison’s Case, 12 How. St. Tr. 833, 851 (H. L. 1692) ... 27
Heller v. District of Columbia, — U.S. —, 128 S. Ct. 2783;
RPE Ea Ms TE COD iv bik oc hoe cece acesestavves 20
Lord Morley’s Case, 6 How. St. Tr. 769, 771
Ry RRND ROR ar oer Oa Legs Se er 27
MacDonald v. Chicago, — U.S. —, 130 S. Ct. 3020,
Be Bas Ee snk cs oc svete s vwscecwcoweces 20
Mattox v. United States, 156 U.S. 237, 243, 39 L. Ed. 409,
ee oe as pe eg EER Bes we PCE AAR OU 22
cases page number
Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531,
eS ee 19, 29
People v. Alcala (1984) 36 Cal.38d 604 ................. 36
People v. Breverman (1998) 19 Cal.4th 142. ........... 35
People v. Giles, 40 Cal. 4th 833, 55 Cal. Rptr. 3d 133,
oo Be Es Pie Gy re 31, 33, 34
People v. Romero, 26 Cal. App. 4th 315 (1992 .......... 33
Ponce v. Felker, 606 F.3d 596
gl. 6, 18, 30, 31, 33
Queen v.Scaife, 117 Q. B. 238, 242, 117 Eng. Rep. 1271,
es a oe bcd eee) 66d 68 08 He a0 27
Reynolds v. United States, 98 U.S. 145,
Be As, Me, BOO ROTO) 6 ccc ccc sceccens 17, 20, 26, 27, 30-32
Ruse v. Clark, 478 U.S. 570, 106 8. Ct. 3101,
Dee i ES ops bec vec s sb aveeecrreseseee 35
Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257,
re ee aaa vey bas eseednesvee sees 29
State v. Jensen, 2007 WI 26, 299 Wis. 2d 267,
pep B mb Go Fay ) Re 31, 33
Vill
cases page number
State v. Langley, 354 N.W.2d 389 (Minn. 1984) ......... 32
State v. Mason, 160 Wn.2d 910, 162 P3d 396,
I MED gs so-so bee blo ome ee ee ee 31, 33
State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311
Sy ss 4084 ew 0s 6 030 ee ee 31
State v. Meeks (2004) 277 Kan. 609, 88 P3d 789. . 20, 31, 33
State v. Moua Her, 750 N.W.2d 258 (Minn, 2008) .... 31, 32
State v. Sanchez, 2008 MT 27, 341 Mont. 240,
177 P3d 444, 456 (Mont. 2008) ................... 31, 33
Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,
Ae BT eh.) re 35
United States v. Cromer, 389 F.3d 662 (6™ Cir. 2004) .... 32
United States v. Emery, 186 F.3d 921 (8" Cir. 1999) ..... 20
United States v. Garcia-Meza, 403 F.3d 364
PO I) ow cede cccscoenvudeecss eens eee 31, 33
United States v. Rouco, 765 F.2d 983 (CA11) ........... 27
Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173,
ee Ges Oe, Oe A CT) nce cenvacves t+ s4eeeee 20, 29
ix
statutes page number
I ES MICE ov cw ete ess ccccscccsseseses 1
eee 6
| 2
California Evidence Code section 1370. ............ 3, 10
California Evidence Code section 240 ................. 2
California Penal Code section 187. ..............0008. 2
California Penal Code section 188. ...............00.. 5
California Penal Code section 190. .................... 6
United States Constitution, Fourteenth Amendment . 1, 30
United States Constitution,
Sixth Amendment ............ 1, 19, 21, 22, 27, 29, 31, 33
United States Constitution, Second Amendment ....... 20
treatises and law review articles page number
G. Gilbert, Law of Evidence 140-141 (1756) ......... 28
Richard D. Friedman, Confrontation and the
Definition of Chutzpa, 31 Israel L. Rev. 506 (1997) ..... 33
x
CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS
OF THE OPINIONS AND ORDERS ENTERED IN THE
CASE BY COURTS OR ADMINISTRATIVE AGENCIES.
Both the Ninth Circuit’s decision affirming petitioner’s
appeal from the denial of his federal habeas corpus petition,
and the California Court of Appeals’ opinion affirming
petitioner’s direct appeal are unpublished.
BASIS FOR JURISDICTION IN THE SUPREME COURT
1. Date of entry of order sought to be reviewed: July 21,
2010 (memorandum decision).
2. Date of any order respecting rehearing: none
3. Statutory provision believed to confer on this Court
jurisdiction to review on a writ of certiorari the judgment or
order in question: 28 U.S.C. section 1254(1).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
United States Constitution
Sixth Amendment. [n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him...
Fourteenth Amendment, Section. 1. ..... No State shall ...
deprive any person of life, liberty, or property, without due
process of law...
Federal Statutes
28 U.S.C. section 2254(d). An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—- (1) resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States...
State Statutes
California Evidence Code section 240.
(a) Except as otherwise provided in subdivision (b),
“unavailable as a witness” means that the declarant is any
of the following:
(1) Exempted or precluded on the ground of privilege
from testifying concerning the matter to which his or
her statement is relevant.
(2) Disqualified from testifying to the matter.
(3) Dead or unable to attend or to testify at the hearing
because of then existing physical or mental illness or
infirmity.
(4) Absent from the hearing and the court is unable to
compel his or her attendance by its process.
(5) Absent from the hearing and the proponent of his
or her statement has exercised reasonable diligence
but has been unable to procure his or her attendance
by the court’s process.
(b) A declarant is not unavailable as a witness if the
exemption, preclusion, disqualification, death, inability,
or absence of the declarant was brought about by the
procurement or wrongdoing of the proponent of his or
her statement for the purpose of preventing the
declarant from attending or testifying.
(c) Expert testimony which establishes that physical or
mental trauma resulting from an alleged crime has
caused harm to a witness o sufficient severity that the
witness is physically unable to testify or is unable to
testify without suffering substantial trauma may
constitute a sufficient showing of unavailability
pursuant to paragraph (3) of subdivision (a). As used in
this section, the term “expert” means a physician and
surgeon, including a psychiatrist, or any person
described by subdivision (b), (c), or (e) of Section 1010.
The introduction of evidence to establish the
unavailability of a witness under this subdivision shall
not be deemed procurement of unavailability, in absence
of proof to the contrary.
California Evidence Code section 1370.
(a) Evidence of a statement by a declarant is not made
inadmissible by the hearsay rule if all of the following
3
conditions are met:
(1) The statement purports to narrate, describe, or
explain the infliction or threat of physical injury upon
the declarant.
(2) The declarant is unavailable as a witness pursuant
to Section 240.
(3) The statement was made at or near the time of the
infliction or threat of physical injury. Evidence of
statements made more than five years before the filing
of the current action or proceeding shall be inadmissible
under this section.
(4) The statement was made under circumstances that
would indicate its trustworthiness.
(5) The statement was made in writing, was
electronically recorded, or made to a physician, nurse,
paramedic, or to a law enforcement official.
(b) For purposes of paragraph (4) of subdivision (a),
circumstances relevant to the issue of trustworthiness
include, but are not limited to, the following:
(1) Whether the statement was made in contemplation
of pending or anticipated litigation in which the
declarant was interested.
(2) Whether the declarant has a bias or motive for
fabricating the statement, and the extent of any bias or
4
motive.
(3) Whether the statement is corroborated by evidence
other than statements that are admissible only
pursuant to this section.
(c) A statement is admissible pursuant to this section only
if the proponent of the statement makes known to the
adverse party the intention to offer the statement and the
particulars of the statement sufficiently in advance of the
proceedings in order to provide the adverse party with a
fair opportunity to prepare to meet the statement.
California Penal Code section 187.
(a). Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought. . . .
California Penal Code section 188. Such malice may be
express or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow
creature. It is implied, when no considerable provocation
appears, or when the circumstances attending the killing show
an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional
doing ofan act with express or implied malice as defined above,
no other mental state need be shown to establish the mental
state of malice aforethought.
an
California Penal Code section 190.
(a) Every person guilty of murder in the first degree shall
be punished by death, imprisonment in the state prison for
life without the possibility of parole, or imprisonment in the
state prison for a term of 25 years to life. . .
Except as provided in subdivision (b), (c), or (d), every
person guilty of murder in the second degree shall be
punished by imprisonment in the state prison for a term of
15 years to life.
STATEMENT OF THE CASE, INCLUDING
BASIS OF JURISDICTION IN FEDERAL COURT
1. Basis of jurisdiction in federal court
The basis for jurisdiction in the federal court in the first
instance was 28 U.S.C. section 2254.
2. Related and similar cases
Petitioner had been advised that a petition for writ of
certiorari will be filed from the Ninth Circuit’s decision in
Ponce v. Felker, Ninth Circuit Appeal No. 08-56218, reported
at 606 F3d 596 (May 24, 2010) involving the same issue of
retroactivity of Giles v. California, — U.S. —, 12858. Ct. 2678;
171 L. Ed. 2d 488 (2008), but has not seen any indication that
such a petition was ever filed.
3. Statement of the Case
a. Facts of Conviction and Custody.
Petitioner was convicted of first degree murder and
sentenced on February 7, 2003 to a term of 26 years to life. He
is presently in the custody of respondent Rosanne Campbell,
Warden, Mule Creek State Prison, Ione, California. Petitioner
is not on bail.
b. Proceedings at trial
Petitioner was tried for the October 8, 1988 homicide Nelva
Omar ' in a non-jury trial.
i. Witnesses to the crime
The events occurred during the evening of October 8, 1988,
in Fremont, California, a city located on the eastern side of San
Francisco Bay. There were no eyewitnesses to the actual
stabbing. Petitioner did not testify.
Samuel Dorrough heard a woman scream three times and
each time the scream was cut short. Dorrough also heard the
voice saying “help me”, and a honking horn. Dorrough later
heard a sound like a car trunk closing three times, heard a car
start up, saw headlights, and saw a red car coming out of a
driveway. (ER 51-52.) ”
Nelva Omar is referred to as “Nelva” in this brief to distinguish her from
Zelika Omar, a prosecution witness.
2 “BR” refers to the Excerpts of Record filed in the Ninth Circuit appeal.
7
Janeen Leech saw a red hatchback coming up Wilson Street
with its passenger door swinging open. She then heard
something hitting the ground. Leech then saw a man carrying
what looked like a mannequin, which he then threw into the
red car (ER 52.)
Gary Eoff saw a red car stopped with the door open. The
driver got out, picked up a girl and threw her inside the car.
The girl was not moving. (ER 52.)
Franklin Bryan heard a woman screaming “Oh, God, help”,
a man yelling, and a horn honking. He then heard something
hit the ground near the car. He then saw a man get out of a car
and try to force the passenger door closed. After the man got
back in the car, Bryan heard some more arguing. (ER 52.)
Leech, Eoff, and Bryan did not identify petitioner as the
man that they saw. Later, however, Paul Lightfoot,
petitioner’s stepfather, woke up to see petitioner cutting at his
wrists and throat. Petitiomer said that he’d done something
terrible and the police would lock him up. (ER 52.)
Deputy Frank Buschhueter found a red hatchback parked
on Aires Court with nobody inside, but lots of blood on the
interior. He then heard a woman calling for help, saying that
her son was trying to hurt himself. Buschhueter entered an
apartment and saw petitioner trying to stab himself. Petitioner
then ran to a balcony and dove to the ground. Petitioner was
emotional and crying. (ER 52.)
Deputy Robert Burnham saw petitioner fall to the
pavement from a balcony, get up and run away. Burnham
8
caught petitioner and handcuffed him. Petitioner had cut his
throat very deeply and had severed an artery. (ER 53.)
Lieutenant Donna Jay looked inside the red hatchback and
saw blood everywhere, a knife on the dashboard, and a purse
with Nelva’s license in it. (ER 53.)
Burnham and Jay then looked in the rear compartment of
the red hatchback and found Nelva’s body. She appeared to
have been dead for some time.
ii. Scientific evidence
The coroner testified that Nelva’s body had a skull fracture,
blunt injuries to the head and face, bruises and abrasions, (ER
50), and twenty three knife wounds (ER 50-51.) The coroner
described only one of the knife wounds as life threatening, a
stab wound to the upper chest that was between 5’ and 6%
inches long that penetrated the lower lobe of Nelva’s lung. The
coroner described the other knife wounds as “superficial”,
“small”, “cuts”, or “scratches”, or “affecting muscle tissue
only” (ER 51.) The coroner could not match the wounds to any
particular knife. (ER 51.) The cause of death was a skull
fracture and the previously mentioned stab wound. (ER 51.)
The coroner could not determine whether there had been
a struggle. The skull fracture could have been caused by a fall
to the street. The wounds described as “cuts” could have been
inflicted when Nelva had the knife in her hand during a
struggle. (ER 51.)
The parties stipulated that a DNA analysis of the blood on
9
a serrated steak knife found in Nelva’s car showed both
petitioner’s and Nelva’s blood on it. No evidence or
stipulations were presented coricerning the origin or ownership
of the knife. (ER 53.)
iii. Nelva’s prior complaints
to law enforcement.
The prior complaints were admitted under California
Evidence Code section 1370, which allows the introduction of
prior statements of a witness relating a threat or infliction of
physical injury if the witness in unavailable. The defense
unsuccessfully objected to the introduction of Nelva’s prior
complaints to law enforcement officers David Snider, Beverly
Young, Huey Tran, and Jeffrey Andrade on grounds of hearsay
and violation of petitioner’s confrontation rights under the
Sixth Amendment. (ER 58-59.)
March 14, 1998 incident: Alameda County Sheriff’s
deputy David Snider took a battery report at 5:35 pm from
Nelva in a Safeway parking lot in Fremont, California. Nelva
had been crying, was upset, and had a very slight scrape mark
on the left eye, which Snider thought was “consistent with” an
assault. Nelva told Snider that she had gotten into a fight with
petitioner in the Safeway parking lot at about 11:00 am that
day, during which petitioner struck her with his fist. Nelva
declined to press charges. Nelva mentioned “a hundred
previous assaults” but gave no details. Snider checked with
dispatch, who told him that there had been no argument or
fight reported in the Safeway parking lot that morning. (ER
53.)
10
April 14, 1998 incident: Hayward Police Officer Beverly
Young was dispatched to Southland Mall in Hayward,
California, at 8:30 pm to interview Nelva. Nelva was crying
“hysterically” that petitioner had broken one of her car
windows. Nelva told Young that petitioner called her on his
cell phone, and when she refused to meet her by her car, said
he would break the windows of her car. Nelva showed Young
a bruise that she said that petitioner had made on her 4 days
before, and said petitioner had beaten her “exactly 15 times”
before. Young advised Nelva to get a restraining order, Nelva
said that if she did, petitioner would kill her. There were no
witnesses to anyone breaking the car window. No other
witness reported anything. (ER 53-54.)
July 10, 1998 incident: Milpitas Police Officer Huey
Tran interviewed Nelva at the Burlington Coat Factory in the
Great Mall in Milpitas, California. Nelva told Tran that she’d
broken up with petitioner eight months before, but gotten back
together four days ago. She said that at about 9:30am that
morning, petitioner called her and threatened to kill her. Then,
around noon, petitioner went to her jewelry kiosk and
threatened to kill her. She yelled at him, he threw a shoe at
her, and the security officer chased him away. During Tran’s
interview, there was a call that Nelva said was from petitioner.
Tran took phone and heard an angry male voice yelling
obscenities. Tran told petitioner that he was a police officer.
Petitioner said that he’d only been arguing with Nelva and
hung up. There was another call which Nelva answered; Nelva
then told Tran that it was petitioner saying that he hopes she
died. (ER 54.)
Tran also interviewed two witnesses to the altercation,
11
Salvador Baron and Michael Savedra, who told Tran that they
saw the shoe being thrown but that it was just an argument.
Later, Nelva called the police department and recanted most
of what she had told Tran. She said that she had told petitioner
to “go to hell, fuck you” on the telephone and to “drop dead”
and that she would “get him back” in person, and petitioner
had only asked her what was wrong without making any death
threats.” (ER 54.)
August 2, 1998 incident: Alameda County Sheriffs
deputy Jeffrey Andrade responded to a domestic violence call
on August 2, 1998 at about 8:30 pm on Redwood Road in
Castro Valley, California. Chief Norman Lapera of the East
Bay Regional Parks Police was present, talking to Nelva. Nelva
had a bruise on her neck and scratches, and was upset and
crying. Petitioner had been arrested and was angry. After
Chief Lapera left with petitioner, Nelva told Andrade that she
and petitioner had been behind Southland Mall in Hayward,
California, when an old high school friend said “hi” to her.
Petitioner punched her, choked her, and said that he was going
to kill both of them that night. Nelva Omar would not give the
name of the witness that she said was an old friend. (ER 54-
55.)
iv. Other testimony.
East Bay Regional Parks Police Chief Norman Lapera was
stopped at a stoplight on Redwood Road at 8 pm alongside a
maroon Honda. He saw Nelva in the passenger seat of the
Honda, crying and saying “no” and “leave me alone.”
Petitioner was in the driver’s seat. Petitioner took the woman
by the back of the hair and put her in an arm bar choke hold.
12
She resisted and tried to grab petitioner’s forearm. While
Lapera was calling dispatch, Nelva got out of the car and got
into Lapera’s police car, crying and saying “help he’s trying to
hurt me.” (ER 55.) Lapera ordered petitioner to get back in his
car. Petitioner did so, drove through the intersection, and
stopped when Lapera pulled him over. Petitioner then got out
of his car, walked toward Lapera’s car, and started yelling at
Nelva to get back in his car. Lapera arrested and handcuffed
petitioner. (ER 55.)
Wida Akbar saw Nelva on October 8, 1988 at about 4-5 pm.
(RT 276-277.) Nelva told Wida that she wanted to go to the
Spaghetti Factory that evening with petitioner, but couldn’t
make herself look really beautiful because appellant would kill
her. (RT 276-280). (RT 280.) °
Zelika Omar, Nelva’s sister, testified that on an unspecified
evening, as she and Nelva were driving away from Zelika’s
home in Fremont, California, petitioner jumped out from the
side of the bushes onto the hood of the car, jumped off,
laughed, and said it was a joke. (ER 56-57.) On another
occasion about five months before Nelva’s death, she, Nelva,
and petitioner were in Nelva’s car in Castro Valley, California.
Some yelling occurred and petitioner told Nelva he had it all
planned out and if Zelika was there too he would take care of
her too. (ER 56-57.) Zelika also said that she played about 30
telephone messages on Nelva’s phone in which petitioner was
yelling and saying he was going to “chop [Nelva’s] body up and
send it in a box to Nicaragua.” Zelika did not produce any
recorded messages or say when these messages were left. (ER
5 «RT” refers to the original reporter’s transcript in the direct appeal.
13
56-57.)
Eleanor McDonald, a neighbor of Nelva’s, testified that she
had heard petitioner and Nelva arguing occasionally and had
seen petitioner hit Nelva 2 years before she died. (ER 57.)
v. Closing argument
The prosecutor argued that Nelva’s prior complaints to the
police and petitioner’s prior threats against her was evidence
of premeditation, and that the multiple stab wounds showed
that petitioner deliberated because he could have stopped
whenever he wanted to. (ER 59.)
The defense agreed that the prosecution had proven a case
of homicide, but not a case of premeditated first degree
murder. The prosecution had the burden of of showing a lack
of provocation and lack of unreasonable self-defense that would
negate malice. Nelva’s history of provoking petitioner was
circumstantial evidence that she had acted in the same manner
on October 8, 1998, 2nd the evidence that Nelva had told
defendant in the past that she was going to have her friends
kick his ass was evidence that petitioner could have believed,
albiet unreasonably, that he was in danger on October 8, 1998.
(ER 59-60.) There was evidence that the two were sitting in
the car quietly before the screaming was heard. Evidence that
Nelva’s body was partially nude when discovered suggested
that the two had had sex in the car, which, if true, would tend
to disprove a deliberate, premeditated first degree murder and
tend to show that the killing resulted from a sudden argument.
The coroner had testified that the knife wounds could have
been inflicted in a matter of seconds, and that the cutting-type
14
wounds (as opposed to the stab wounds) were consistent with
two people struggling over a knife. Dorrough’s testimony that
a matter of seconds had gone by between the first and second
screams suggested a quick and volatile event. ‘The blood from
inside the car was never tested; there was no evidence about
how much of it might have been petitioner’s. There was no
evidence about who brought the knife or where it came from,
and that if it had been in the car before Nelva picked up
petitioner, this would be evidence of reasonable doubt that
petitioner had planned the murder in advance. (ER 59-60.)
In rebuttal, the prosecution argued that there was no
specific evidence that Nelva’s killing was the result of
provocation or heat of passion, and no evidence that Nelva
might have “done something to bring this on herself” except
for petitioner’s blood on the knife. It was “quite probable and
quite likely” that petitioner had cut hinaself while stabbing
Nelva. (ER 60-61.)
vi. The trial court’s decision.
The court recognized that the issue was between voluntary
manslaughter and murder in first or second degree, but found
that petitioner had premeditated and deliberated based on the
evidence of prior threats:
“Does the evidence show beyond a reasonable doubt
that Mr. Morales has premeditated the murder? Yes, it
does. He had talked about the threat of murder before.
He once had even beaten Miss Omar while driving
during the - toward the empty reaches of Redwood
Road, telling her he was taking her there to kill her.
1S
Perhaps the fortuitous intervention of Chief Perrea (sic)
saved her. Perhaps Mr. Morales would not then have
carried out his threats had he not been stopped. Because
it is abundantly and overwhelmingly clear that he
manifestly considered a proposed course of action before
the action that ended Miss Omar’s life.”
(ER 6! .)
The court did not discuss the issues of provocation or
unreasonable self defense as they related to manslaughter.
Instead, the court saw the issue as a choice between first and
second degree murder, defining the choice as follows:
“So here’s the crux of the case. That Mr. Morales
premeditated the murder of Miss Omar and that his use
of the knife was willful is proven beyond a reasonable
doubt. The Court is asked to accept on the one hand
that based upon a volatile, demeaning, vicious and
harsh relationship that Mr. Morales was pushed to the
breaking point and that he killed upon an unconsidered
and rash impulse. On the other hand, the Court is asked
to find the killing was not only premeditated and willful
but deliberate and not a rash impulsive response.”
(ER 61.)
The court acknowledged that “something (might have)
happened in the car to force a rash, impulsive act by Mr.
Morales.” but held there was “no evidence” to support this.
The court found that petitioner’s “threats and actions,
recorded over several months by various individuals, showed
16
that he manifested the intention to unlawfully kill Nelva
Omar.” This showed that petitioner had deliberated the killing.
(ER 61.)
c. Proceedings in the direct appeal.
Petitioner timely pursued a direct appeal and a state
companion collateral relief petition. During the direct appeal,
this Court decided Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L. Ed. 2d 177 (2004), which generally barred
the introduction of “testimonial hearsay” unless the defense
has had a prior right to cross-examine the declarant.
The California Court of Appeal acknowledged that Nelva’s
prior statements to the police were of the type generally barred
by Crawford as “testimonial hearsay”, but held that petitioner
had forfeited his confrontation rights by killing Nelva and thus
making her unavailable as a witness. The Court of Appeal
relied on this Court’s decision in Reynolds v. United States, 98
US. 145, 158-159, 25 L. Ed. 244 (1879), even though Reynolds
had involved a defendant who deliberately procured the
witness’ absence, holding that Reynolds’ forfeiture by
wrongdoing rule did not require a showing that petitioner
killed Nelva to prevent her from testifying. (ER 26.)
On October 26, 2005, the California Supreme Court denied
review. Petitioner filed a timely federal habeas corpus petition
on October 25, 2006.
d. Proceedings in the federal courts.
On February 13, 2008, the United States District Court for
17
the Northern District of California held that the Court of
Appeal’s decision that petitioner had forfeited his right to
confront Nelva by killing her and thereby making her
unavailable as a witness was neither contrary to nor an
unreasonable construction of established U.S. Supreme Court
decisional law, even in the absence of any evidence that
petitioner had killed Nelva for the purpose of making her
unavailable as a witness. (ER 25-27.)
Approximately three months after the dismissal and after
petititoner had filed a timely appeal to the Ninth Circuit, this
Court decided appealability, this Court decided Giles v.
California, — U.S. —, 128 S. Ct. 2678; 171 L. Ed. 2d 488
(2008.) Giles held that the forfeiture by wrongdoing rule
required a showing that the defendant intended to prevent a
witness from testifying.
On July 21, 2010, the United States Court of Appeals for
the Ninth Circuit affirmed the district court in a two page
memorandum decision. The decision was based on the Ninth
Circuit’s published opinion in Ponce v. Felker, 606 F3d 596
(9 Cir. May 24, 2010) in which the Ninth Circuit held that
Giles v. California is not retroactive.
Petitioner did not file a petition for rehearing or rehearing
en banc. Petitioner was informed that the petitioner in Ponce
vu. Felker intended to file a petition for certiorari with this
Court, but to date, has not been able to find any indication on
this Court’s docket that such a petition was ever filed.
18
ARGUMENT
1. The Supreme Court should grant certiorari
because of the exceptional importance of
determining the retroactivity of its decision
in Giles v. California, — U.S. —, 128 S. Ct.
2678; 171 L. Ed. 2d 488 (2008).
This case is of importance because the main issue is
whether this Court’s recent decision in Giles v. California , —
US. —, 128 S. Ct. 2678; 171 L. Ed. 2d 488 (2008) is
retroactive. The only Federal Circuit to have ruled on the
issue of Giles’ retroactivity is the Ninth Circuit.
In so ruling, the Ninth Circuit undermined the rule of
analysis of Confrontation Clause questions established by this
Court in Crawford v. Washington. Before Crawford, this Court
followed a rule based on “reasonableness”, see Ohio v. Roberts,
448 US. 56, 100S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Crawford
overruled Ohio v. Roberts and held that any exception to the
Confrontation Clause would have to have existed at the time
of the founding:
“The text of the Sixth Amendment does not suggest any
open-ended exceptions from the confrontation
requirement to be developed by the courts. Rather, the
‘right .. . to be confronted with the witnesses against
him,’ Amdt. 6, is most naturally read as a reference to
the right of confrontation at common law, admitting
only those exceptions established at the time of the
founding.”
19
Crawford v. Washingon, 541 US. at 54.
After Crawford, any exception to the Confrontation Clause,
to be justified, had to be done so based on the scope of that
right at the time of the founding. * The California Court of
Appeal clearly did not attempt any historical analysis of the
“forfeiture by wrongdoing” exception, however, basing its
interpretation of Reynolds v. United States on two very recent
cases, United States v. Emery, 186 F3d 921 (8 Cir. 1999), and
State v. Meeks (2004) 277 Kan. 609, 88 P3d 789. By finding
Giles non-retroactive, the Ninth Circuit, in essence, ruled that
a court need not follow Crawford’s historical analysis rule in
analyzing an exception to the Confrontation Clause until this
Court issues an opinion specifically dealing with that particular
exception.
2. Crawford applies to petitioner.
This Court decided Crawford v. Washingon while
petitioner’s direct appeal was still pending. Crawford is thus
applicable to petitioner. Whorton v. Bockting, 549 U.S. 406, 127
S. Ct. 1178, 1180-1181, 167 L. Ed. 2d 1 (2007.)
* Since Crawford, the historical analys is of the Bill of Rights has played a
major role in this Court’s decisions. See, e.g. Heller v. District of Columbia,
— US. —, 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008) and MacDonald v.
Chicago, — U.S. —, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (both
decisions holding that the historical meaning of the Second Amendment, to
protect a personal right to keep and bear arms, controlled.)
20
3. Nelva’s statements to the four law
enforcement officers were “testimonial.”
The California Court of Appeal assumed that Nelva’s prior
statements to law enforcement officers Snider, Young, Tran,
and Andrade would qualify as “testimonial hearsay” under
Crawford v. Washington. The district court described these
statements as “potentially testimonial” (district court
memorandum opinion, p. 19.) There appears to be no serious
dispute that Nelva’s reports of petty crimes and threats to law
enforcement officers would be considered testimonial under
Crawford and would not fall within the limited “exigency”
exception of Davis v. Washington, 547 U.S. 818, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006.) Nelva’s statements were all
taken in the field by investigating officers when petitioner was
not physically present and there was no ongoing emergency.
4. Giles v. California is retroactive
to the time of Crawford.
a. Crawford established the rule that Confrontation
Clause exceptions would not be recognized unless
they existed at the time of the founding.
Crawford established a basic rule for determining whether
an exception exists to the Sixth Amendment Confrontation
Clause. After Crawford, the Court would only recognize those
exceptions that were in existence at the time of the founding:
“The text of the Sixth Amendment does not suggest any
open-ended exceptions from the confrontation
requirement to be developed by the courts. Rather, the
21
‘right .. . to be confronted with the witnesses against
him,’ Amdt. 6, is most naturally read as a reference to
the right of confrontation at common law, admitting
only those exceptions established at the time of the
founding.”
Crawford v. Washingon, 541 US. at 54, citing Mattox v, United
States, 156 U.S. 237, 243, 39 L. Ed. 409, 15S. Ct. 337 (1895).
The only exception discussed in Crawford was the historical
“dying declarations” rule:
“The one deviation we have found involves dying
declarations. The existence of that exception as a
general rule of criminal hearsay law cannot be disputed.
.. . If this exception must be accepted on historical
grounds, it is sui generis.”
Crawford v. Washingon, 541 U.S. at 56, fn 6.
Thus, after Crawford, lower courts were on notice that they
could not rely on exceptions to the Confrontation Clause that
may have been judicially developed since the “the time of the
founding.”
b. Giles v. California was simply an application of
Crawford’s principle of analysis to the forfeiture by
wrongdoing Confrontation Clause exception.
In Giles v. California, this Court identified the principle
established in Crawford and stated that the issue facing the
Court in Giles was simply “whether the theory of forfeiture by
22
wrongdoing accepted by the California Supreme Court is a
founding-era exception to the confrontation right:
“We held in Crawford that the Confrontation Clause is
‘most naturally read as a reference to the right of
confrontation at common law, admitting only those
exceptions established at the time of the founding.’ Id.,
at 54, 1248S. Ct. 1354, 158 L. Ed. 2d 177. We therefore
ask whether the theory of forfeiture by wrongdoing
accepted by the California Supreme Court is a
founding-era exception to the confrontation right.”
Giles v. California, 128 S. Ct. at 2682. By so framing the issue,
this Court recognized that the analysis required was simply a
specific application of the principle already established in
Crawford.
c. By treating the “purposeful” version of the
forfeiture by wrongdoing rule as established law,
and California’s version of the rule as a very
recent departure, Giles implies retroactivity.
Giles v. California discussed the traditional version of the
forfeiture by wrongdoing exception to the Confrontation
Clause in the following manner:
“The terms used to define the scope of the forfeiture
rule suggest that the exception applied only when the
defendant engaged in conduct designed to prevent the
witness from testifying. The rule required the witness to
have been ‘kept back’ or ‘detained’ by ‘means or
procurement’ of the defendant. Although there are
a3
definitions of ‘procure’ and ‘procurement’ that would
merely require that a defendant have caused the
witness’s absence, other definitions would limit the
causality to one that was designed to bring about the
result ‘procured.’....
Cases and treatises of the time indicate that a
purpose-based definition of these terms governed. A
number of them said that prior testimony was
admissible when a witness was kept away by the
defendant’s ‘means and contrivance.’ .... This phrase
requires that the defendant have schemed to bring
about the absence from trial that he ‘contrived.’ .. . .
An 1858 treatise made the purpose requirement more
explicit still, stating that the forfeiture rule applied
when a witness ‘had been kept out of the way by the
prisoner, or by some one on the prisoner’s behalf, in
order to prevent him from giving evidence against him.’
....The wrongful-procurement exception was invoked
in a manner consistent with this definition. We are
aware of no case in which the exception was invoked
although the defendant had not engaged in conduct
designed to prevent a witness from testifying, such as
offering a bribe.
The manner in which the rule was applied makes plain
that unconfronted testimony would not be admitted
without a showing that the defendant intended to
prevent a witness from testifying. In cases where the
evidence suggested that the defendant had caused a
person to be absent, but had not done so to prevent the
24
person from testifying — as in the typical murder case
involving accusatorial statements by the victim — the
testimony was excluded unless it was confronted or fell
within the dying-declaration exception. Prosecutors do
not appear to have even argued that the judge could
admit the unconfronted statements because the
defendant committed the murder for which he was on
trial.”
Giles v. California, 128 S. Ct. at 2683-2684.
The Court noted that a lack of a “purposeful” component to
the forfeiture rule would have made the dying declaration
exception to the Confrontation Clause unnecessary:
“Judges and prosecutors also failed to invoke forfeiture
as a sufficient basis to admit unconfronted statements
in the cases that did apply the dying-declarations
exception. This failure, too, is striking. At a murder
trial, presenting evidence that the defendant was
responsible for the victim’s death would have been no
more difficult than putting on the government’s case in
chief. Yet prosecutors did not attempt to obtain
admission of dying declarations on wrongful-
procurement-of-absence grounds before going to the
often considerable trouble of putting on evidence to
show that the crime victim had not believed he could
recover.”
Giles v. California, 128 S. Ct. at 2686.
The Court finally observed that what they called
25
California’s “proposed exception” to the right of confrontation
did not even arise until very recently.
“Not only was the State’s proposed exception to the
right of confrontation plainly not an ‘exceptio[n]
established at the time of the founding,’ [Crawford] id.,
at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177; it is not
established in American jurisprudence since the
founding. American courts never — prior to 1985 —
invoked forfeiture outside the context of deliberate
witness tampering.
This Court first addressed forfeiture in Reynolds v.
United States, 98 U.S. 145, 25 L. Ed. 244 (1879), where,
after hearing testimony that suggested the defendant
had kept his wife away from home so that she could not
be subpoenaed to testify, the trial court permitted the
government to introduce testimony of the defendant’s
wife from the defendant’s prior trial. See id., at 148-150,
25 L. Ed. 244. On appeal, the Court held that admission
of the statements did not violate the right of the
defendant to confront witnesses at trial, because when
a witness is absent by the defendant’s “wrongful
procurement,” the defendant ‘is in no condition to
assert that his constitutional rights have been violated’
if ‘their evidence is supplied in some lawful way.’ Id., at
158, 25 L. Ed. 244.....
Reynolds relied on these maxims (as the common-law
authorities had done) to be sure. But it relied on them
(as the common-law authorities had done) to admit
prior testimony in a case where the defendant had
26
engaged in wrongful conduct designed to prevent a
witness’s testimony. The Court’s opinion indicated that
it was adopting the common-law rule. It cited leading
common-law cases — Lord Morley’s Case [6 How. St. Tr.
769, 771 (H. L. 1666)], Harrison’s Case |12 How. St. Tr.
833, 851 (H. L. 1692)], and [Queen v.] Scaife [117 Q. B.
238, 242, 117 Eng. Rep. 1271, 1273 (K. B. 1851)] -
described itself as ‘content with’ the ‘long-established
usage’ of the forfeiture principle, and admitted prior
confronted statements under circumstances where
admissibility was open to no doubt under Lord Morley’s
Case. Reynolds, supra, at 158-159.
If the State’s rule had an historical pedigree in the
common law or even in the 1879 decision in Reynolds,
one would have expected it to be routinely invoked in
murder prosecutions like the one here, in which the
victim’s prior statements inculpated the defendant. It
was never invoked in this way. The earliest case
identified by the litigants and amici curiae which
admitted unconfronted statements on a forfeiture
theory without evidence that the defendant had acted
with the purpose of preventing the witness from
testifying was decided in 1985. United States v. Rouco,
765 F.2d 983 (CA11).”
Giles v. California, 128 S. Ct. at 2687.
This Court rejected California’s claim that there was any
historical support for its version of the forfeiture by
wrongdoing exception to the Confrontation Clause, and held
that allowing California to broaden this exception would be
a7
contrary to Crawford’s principles:
“The State and the dissent note that common-law
authorities justified the wrongful-procurement rule by
invoking the maxim that a defendant should not be
permitted to benefit from his own wrong. See, e.g., G.
Gilbert, Law of Evidence 140-141 (1756) (if a witness
was ‘detained and kept back from appearing by the
means and procurement’ testimony would be read
because a defendant ‘shall never be admitted to shelter
himself by such evil Practices on the Witness, that being
to give him Advantage of his own Wrong’). But as the
evidence amply shows, the ‘wrong’ and the ‘evil
Practices’ to which these statements referred was
conduct designed to prevent a witness from testifying.
The absence of a forfeiture rule covering this sort of
conduct would create an intolerable incentive for
defendants to bribe, intimidate, or even kill witnesses
against them. There is nothing mysterious about courts’
refusal to carry the rationale further. The notion that
judges may strip the defendant ofa right that the
Constitution deems essential toa fair trial, on the
basis of a prior judicial assessment that the
defendant is guilty as charged, does not sit well
with the right to trial by jury. It is akin, one
might say, to ‘dispensing with jury trial because
a defendant is obviously guilty.’ Crawford, 541 US.,
at 62, 1248S. Ct. 1354, 158 L. Ed. 2d 177.
Giles v. California, 1288S. Ct. at 2686, emphasis added.
The Court finally concluded:
28
“We decline to approve an exception to the
Confrontation Clause unheard of at the time of the
founding or for 200 years thereafter.”
Giles v. California, 128 S. Ct. at 2693, emphasis added.
In doing so, this Court treated the purposeful version of the
forfeiture-by-wrongoing exception as the established rule and
California’s elimination of the purpose requirement as a new
departure from this rule. By doing so, this Court implied that
Giles v. California would have to be considered retroactive to
the time of Crawford.
The most recent decision of this Court concerning
retroactivity is Whorton v. Bockting, in which this Court held
that Crawford itself was not retroactive to any earlier time.
This Court stated the general principle of retroactivity, that a
decision that sets forth an “old rule applies both on direct and
collateral review, but a new rule is generally applicable only to
cases that are still on direct review.” Whorton v. Bockting, 127
S.Ct at 1180. This Court further noted that “‘the explicit
overruling of an earlier holding doubtless creates a new rule’”
Whorton v. Bockting, 12758.Ct. at 1181, quoting Saffle v. Parks,
494 US. 484, 488, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990),
and on that basis, held that Crawford undoubtedly created a
new rule because it specifically overruled Ohio v. Roberts, 448
U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Jd.
This Court was undoubtedly correct in ruling that
Crawford created a “new rule” for purposes of retroactivity.
Giles, however, is different. Giles did not overrule any prior
decision of this court. Instead, this court followed Crawford,
29
analyzed the forfeiture-by-wrongdoing exception as it was
understood at the time of the founding and thereafter, and
held that California’s purposeless version of the rule was
“unheard of at the time of the founding or for 200 years
thereafter.” Giles v. California, 128 8, Ct. at 2693. The
“ourposeful” version of the forfeiture-by-wrongdoing exception
was thus not regarded as “new”, but an old, established rule.
It was California’s departure from the _ forfeiture-by-
wrongdoing exception that was the “new rule.”
d. in determining that Giles v. California stated
a “new rule”, the Ninth Circuit improperly relied
on cases that failed to follow the historical analysis
principles dictated by Crawford.
The Ninth Circuit’s decision in Ponce v. Felker is perhaps
explained by the manner in which the retroactivity issue was
presented to that court. The petitioner in Ponce v. Felker
apparently argued that Giles v. California should be
retroactive to the time of Reynolds v. United States, 98 US.
145, 25 L. Ed. 244 (1879). As discussed above, this Court, in
Giles, indeed held that Reynolds v. United States adopted “the
common-law rule” that prior testimony would only be admitted
“where the defendant had engaged in wrongful conduct
designed to prevent a witness’s testimony.” Giles v. California,
128 S. Ct. at 2687. Petitioner here, however, argued only that
Giles should be retroactive to the time of Crawford, since Giles
was a specific application of the rule in Crawford that
thereafter, this Court would recognize only those exceptions to
the Confrontation Clause that were “established at the time of
the founding.” Crawford v. Washingon, 541 U.S. at 54.
40
Ponce v. Felker held that Giles stated a new rule because, prior
to Giles, various courts had approved a non-purposeful version
of the forfeiture-by-wrongdoing exception. Besides the
California Supreme Court’s opinion in People v. Giles, 40 Cal.
4th 833, 55 Cal. Rptr. 3d 133, 152 P3d 433, 443 (Cal. 2007),
the Ninth Circuit cited a single Federal Circuit level case,
United States v. Garcia-Meza, 403 F.3d 364, 370-71 (6 Cir.
2005), and a handful of state cases: State v. Moua Her, 750
N.W.2d 258, 270-74 (Minn. 2008); State v. Sanchez, 2008 MT
27, 341 Mont. 240, 177 P3d 444, 456 (Mont. 2008); State v.
Mason, 160 Wn.2d 910, 162 P3d 396, 404 (Wash. 2007); State
v. Mechling, 219 W. Va. 366, 633 S.E.2d 311, 326 (W.Va. 2006);
State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518,
535 (Wis. 2007), and State v. Meeks, 277 Kan. 609, 88 P3d 789,
794 (Kan. 2004). Ponce v. Felker, 606 F.3d at 603-605.
While the existence of these cases may be relevant to
whether Giles would be retroactive to the time of Reynolds,
they would not be relevant at all to the issue of whether Giles
should be retroactive to the time of Crawford —- unless,
following Crawford’s requirement, they conducted a historical
analysis to determine whether a purposeless version of the
forfeiture-by-wrongdoing exception to the Confrontation
Clause was “established at the time of the founding.” Crawford
v. Washingon, 541 USS. at 54.
None of these cases even attempted the historic analysis
dictated in Crawford to determine what version of the
forfeiture-by-wrongdoing rule was established at the time of
the founding. Indeed it is notable that, except for State v.
Jensen, all of the cases cite Crawford for the statement that
the forfeiture-by-wrongdoing rule “extinguishes confrontation
31
claims on essentially equitable grounds.” Crawford, 541 US.
at 62, but do not even mention Crawford’s bedrock principle
that, thereafter, this Court would only recognize Confrontation
Clause exceptions that were “established at the time of the
founding.” Crawford, 541 U.S. at 54. All of these cases treated
the issue as if the courts had the right to construe the
forfeiture-by-wrongdoing rule as they saw fit, without
reference to the scope of the exception at the time of the
founding. Such an approach contradicts Crawford and is an
unreasonable application of Crawford’s “timie of the founding”
requirement for proposed Confrontation Clause exceptions.
They are not examples of reasonable jurists disagreeing over
the scope of the forfeiture by wrongdoing rule, Caspari v.
Bohlen, 510 U.S. 383, 395, 114 S. Ct. 948, 127 L. Ed. 2d 236
(1994), since a reasonable jurist who sought to follow Crawford
would have had to determine whether a non-purposeful version
of the forfeiture-by-wrongdoing exception existed at the time
of the founding.
The Sixth Circuit, in United States v. Garcia-Meza, 403
F.3d at 370-71. relied only on a prior Sixth Circuit decision,
United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004) and
its own analysis of Crawford and Reynolds. United States v.
Garcia-Meza, 403 F.3d at 370-71. Cromer, in turn, relied only
on an opinion that it admitted was “postulated” by Professor
[apparently Richard] Friedman in a pre-Crawford law review
article. Cromer, td. at 679.
State v. Moua Her, 750 N.W.2d at 270, relied ona previous
Minnesota case, State v. Langley, 354 N.W.2d 389, 400 (Minn.
1984), which appears to have arrived at the conclusion that the
exception does not require a showing of purpose on its own.
32
State v. Sanchez, 341 Mont. at 252, treated the case as a
matter of first impression and relied primarily on United States
v. Garcia-Meza. State v. Mason, 160 Wn.2d at, 926 does not
appear to rely on any prior authority but bases its opinion that
“specific intent to prevent testimony is unnecessary” on
general equitable grounds. State v. Mechling, 219 W. Va. at
381, relied on a depublished, non-citeable California case,
People v. Romero, 26 Cal. App. 4th 315 (1992), that did not
even discuss forfeiture-by-wrongdoing but only held that
domestic abuse can cause a battered women to be afraid.
The court, in State v. Jensen, 727 N.W.2d at 533-534, was
the only one of the cases relied on in Ponce v. Felker that even
acknowledged that Crawford established the rule that
Confrontation Clause exceptions would not be admitted unless
they were “established at the time of the founding”, id. at 534,
but the Jensen court thereafter conducted no analysis to
determine what version of the forfeiture-by wrongdoing
exception was, in fact, “established at the time of the
founding.” Instead, the court relied on State v. Meeks and
United States v. Garcia-Meza. Id. at 533-534.
In State v. Meeks, 277 Kan. at 615, the court relied on a
1997 law review article by Richard D. Friedman, Confrontation
and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997) that
argued for forfeiture without the need for showing a purpose
to prevent a witness from testifying. State v. Jensen, 727
N.W.2d at 533, also mentioned this article, but acknowledged
that Professor Friedman was “one of the first to argue for a
broad forfeiture by wrongdoing doctrine” in the 1997 article.
Finally, concerning People v. Giles, this Court stated in
33
Giles v. California, 1285. Ct. at 2687:
“Not only was the State’s proposed exception to the
right of confrontation plainly not an ‘exceptio[n]
established at the time of the founding,’ id., at 54, 124
S. Ct. 13854, 158 L. Ed. 2d 177; it is not established in
American jurisprudence since the founding. American
courts never — prior to 1985 — invoked forfeiture outside
the context of deliberate witness tampering.”
People v. Giles did not inquire as to the state of the forfeiture
by wrongdoing exception at the time of the founding.
Apparently in response to the above holding in Giles, the
Ninth Circuit set forth an unusual definition of what
constitutes “new law” for retroactivity purposes:
“Moreover, although Giles itself traced the intent
requirement back to common law, it also acknowledged
that post-1985 forfeiture cases and state evidence codes
do not all require proof of intent. 128 S. Ct. at 2687-88
& n.2. Giles thus represented a departure from this
more modern trend regarding the _ forfeiture
exception. The holding of Giles is a new rule for Teague
purposes.”
Ponce v. Felker, 606 FE3d at 603-604. Ponce appears to
acknowledge that Giles restated a principle that would have
been “old law” prior to 1985! The Ninth Circuit does not cite
any decision of this Court establishing that an “old rule” can
become a “new rule” for retroactivity purposes simply because
34
a few lower courts disagree with it, ° or how what it termed the
“more modern trend” became “old law” for purposes of
retroactivity when this Court never purported to follow this
“modern trend” in any of its decisions.
5. The erroneous admission of the prior
statements was either not subject to the
harmless error rule or was not harmless.
In its memorandum decision, the Ninth Circuit did not
reach the issue of whether prejudice needed to be shown if
admission of Nelva’s prior statements to law enforcement was
error, or whether admission of such statements would have
been prejudicial. Petitioner raises these issues here to avoid
any question of inadvertent waiver.
Petitioner was tried by the court, however, not a jury, and
the court explicitly relied on Nelva's prior statements to the
police both to find the premeditation and deliberation
components of first degree murder and to find that Nelva's
killing was not the result of provocation that could render
petitioner's culpability for killing Nelva less than first or even
second degree murder. See, e.g., People v. Breverman (1998) 19
Cal.4th 142. This case was like a jury trial in which the court
has directed a verdict on one or more of the elements of an
offense, to which the harmless error rule does not apply. Rose
v. Clark, 478 US. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460
° Since many of these cases rely on the 1997 law review article by Professor
Friedman, Confrontation and the Definition of Chutzpa, petitioner wonders
whether a single law professor can transmute “old law” into “new law”
simply by writing an article.
35
(1986), Sullivan v. Louisiana, 508 US. 275, 279, 113 S. Ct.
2078, 124 L. Ed. 2d 182 (1993).
But even assuming the harmless error rule applies, the
admission of the prior statements was not harmless. The
evidence showed that petitioner intentionally killed Nelva, but
an intentional killing can be either a first or second degree
murder or a voluntary manslaughter under California law.
Respondent would have to show that no reasonable trier of fact
would have failed to find premeditation, deliberation, and a
lack of provocation sufficient to reduce Nelva's killing to
second degree murder or voluntary manslaughter. Delaware
v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674
(1986).
Without the prior statements, the trier of fact would have
been left with the bizarre, questionable testimony of Nelva’s
sister Zelika, hardly an unbiased witness, and the cororner’s
testimony that all but one of the knife wounds were “small” or
“superficial” (RT 93-100) suggesting that they were inflicted
in a random explosion of violence inconsistent with
premeditation, deliberation, or a lack of provocation. People v.
Alcala (1984) 36 Cal.3d 604, 626 (“a brutal manner of killing
is as consistent with a sudden, random explosion of violence as
with calculated murder.”) There was no direct evidence of
premeditation, and while such an intent could have been
inferred had the evidence showed that petitioner brought the
knife with him, there was no such evidence, either.
Under such circumstances, respondent could not have
shown that admission of the prior statements was harmless
beyond a reasonable doubt.
36
CONCLUSION
For the above reasons, this honorable Court should grant
certiorari in this case. The language in Giles was about as
clear a statement that the purposeful version of the forfeiture-
by-wrongdoing exception was an “old rule” as one is likely to
find in an opinion of this Court not explicitly deciding the issue
of retroactivity. To allow the lower courts to hold, by default,
that Giles is not retroactive to the time of Crawford, based on
a handful of opinions that failed to follow Crawford’s
requirements concerning analysis of Confrontation Clause
exceptions, would simply be to encourage lower courts to
ignore the decisions of this Court.
Dated: Oakland, California, Tuesday, October 12, 2010.
fruitrt J Difax (Fess ty Cathey
Robert Joseph. Beles Paul Gilruth McCarthy
Attorneys for Petitioner HAROLD MORALES
37
APPENDIX
1. Opinions, Orders, Findings of Fact, and
Conclusions of Law, Whether Written or Orally
Given and Transcribed, Entered in Conjunction
with the Judgment Sought to Be Reviewed
2010 U.S. App. LEXIS 15039, *
HAROLD MORALES, Petitioner - Appellant,
V.
ROSANNE CAMPBELL, Warden, Respondent - Appellee,
PEOPLE OF THE STATE OF CALIFORNIA,
Real-party-in-interest - Appellee.
No. 08-16294
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
2010 U.S. App. LEXIS 15039
June 29, 2010, Submitted **
** The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
July 21, 2010, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING THE
CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1]
Appeal from the United States District Court for the Northern
District of California. D.C. No. 3:06-CV-06645-MHP Marilyn
H. Patel, District Judge, Presiding.
Morales v. Campbell, 2008 U.S. Dist. LEXIS 10597 (N.D. Cal.,
Feb. 13, 2008)
DISPOSITION: AFFIRMED.
COUNSEL: For HAROLD MORALES, Petitioner - Appellant:
Robert Joseph Beles, Oakland, CA; Paul McCarthy, Attorney,
ROBERT J. BELES LAW OFFICES, Oakland, CA.
For ROSANNE CAMPBELL, Warden, PEOPLE OF THE
STATE OF CALIFORNIA, Respondents - Appellees: Sharon
Birenbaum, Deputy Attorney General, AGCA - OFFICE OF
THE CALIFORNIA ATTORNEY GENERAL, San Francisco,
CA.
JUDGES: Before: ALARCON, LEAVY , and GRABER, Circuit
Judges.
OPINION
MEMORANDUM *
FOOTNOTES
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
A-2
California state prisoner Harold Morales appeals from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas
corpus petition. We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
Morales contends that the trial court violated his Sixth
Amendment rights by admitting statements by the woman he
was convicted of murdering. Morales argues that Giles uv.
California, 128 S.Ct. 2678, 171 L. Ed. 2d 488 (2008), applies
retroactively, or alternatively, the state court’s application of
the “forfeiture by wrongdoing” doctrine [*2] was contrary to
or an unreasonable application of clearly established federal
law as determined by the United States Supreme Court at the
time of his appeal. These contentions are foreclosed. See Ponce
v. Felker, 606 F.3d 596 (9th Cir. 2010).
AFFIRMED.
2. Any Other Opinions, Orders, Findings of
Fact, and Conclusions of Law Entered in the
Case by Courts or Administrative Agencies
a. District Court opinion
2008 U.S. DIST. LEXIS 10597
HAROLD MORALES, Petitioner,
v.
ROSANNE CAMPBELL, Warden, Respondent.
PEOPLE OF THE STATE OF CALIFORNIA, Real Party in
Interest.
No. C 06-06645 MHP
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
2008 U.S. Dist. LEXTS 10597; 75 Fed. R. Evid. Serv.
(Callaghan) 883
February 13, 2008, Decided
February 13, 2008, Filed
SUBSEQUENT HISTORY: Affirmed by Morales v. Campbell,
2010 U.S. App. LEXIS 15039 (9th Cir. Cal., July 21, 2010)
PRIOR HISTORY: People v. Morales, 2005 Cal. LEXIS 11917
(Cal., Oct. 26, 2005)
COUNSEL:
[*1)
For Harold Morales, Petitioner: Robert Joseph Beles, LEAD
ATTORNEY, Paul Gilruth McCarthy, Law Offices of Robert J.
Beles, Oakland, CA.
For Rosanne Campbell, Warden, Mule Creek State Prison,
Respondent: Sharon G. Birenbaum, Deputy Attorney General,
San Francisco, CA.
JUDGES: MARILYN HALL PATEL, United States District
Court Judge.
OPINION BY: MARILYN HALL PATEL
OPINION
MEMORANDUM & ORDER Re: Petition for Writ of Habeas
Corpus & Motion for Evidentiary Hearing Harold Morales, a
prisoner at the Mule Creek State Prison in Ione, California,
filed this petition for writ of habeas corpus under 28 U.S.C.
section 2254. This matter is now before the court for
consideration on the merits. For the reasons discussed below,
the petition will be DENIED.
OVERVIEW On June 30, 1999 the Alameda County District
Attorney charged petitioner Morales, pursuant to California
Penal Code section 187, with the murder of Nazaneen “Nelva
“ Omar (“Omar”). The information did not specify whether the
charge was for murder in the first or second degree. Petitioner
was also alleged to have used a deadly and dangerous weapon
in violation of Penal Code section 12022(b) and to have
A-5
intentionally and personally inflicted great bodily injury in
violation of
tye
section 1203.075 and 12022.7(d). CT 289-90 1. On October 3.
2002 petitioner waived his right to a jury trial and, following a
bench trial, he was convicted of all charges. Id. at 473; 493-94
lic was sentenced on February 7, 2003 to a term of twenty-five
years to life with the possibility of parole. Id. at 519-20, 553-54
| “CT “ refers to the clerk’s transcript of petitioner's state
court trial, which this court received as Exhibit A in support of
Respondent’s Opposition Brief. “RT “ refers to the reporter’s
transcript of the trial, which this court received as Exhibit B in
support of Respondent’s Opposition Brief
Petitioner pursued state direct appeal and state habeas corpus
review with the California Court of Appeal, which affirmed
Petitioner’s conviction and denied the habeas petition. Resp.’s
Opp., Exh’s. C-I. Most recently, petitioner timely pursued a
petition for review with the California Supreme Court. Id.,
Exh. J. The California Supreme Court dismissed petitioner’s
claims without prejudice until such time as the Court reached
a decision in People v. Cage, case number S127344 2,
interpreting the Confrontation Clause of the Sixth Amendment
Id., Exh. K. The issue in Cage was whether
1*33]
an ostensible victim’s statements to a police officer in response
to general investigative questioning constitutes testimonial
hearsay under Crawford v. Washington, 541 U.S. 36, 1248S. Ct
1354, 158 L. Ed. 2d 177 (2004). Petitioner claims the
decedent’s statements to law enforcement officers were
testimonial hearsay and therefore inadmissible because
petitioner had no opportunity to cross-examine the declarant
2 The California Supreme Court actually referred to case
number 812737. This case number was assigned to a related
case, but appears to have been referenced in error
In anticipation of re-filing with the California Supreme Court,
petitioner waited one full year subsequent to dismissal, but
ultimately bypassed this last stage of state review and filed the
petition now before this court on October 25, 2006--
immediately prier to the expiration of the period of limitation
for such relief. An opinion was subsequently issued in the
matter of People v. Cage on April 9, 2007, but the State does
not challenge this petition on exhaustion grounds
Petitioner now mukes a variety of claims related to his Due
Process rights and his right to a fair trial under the Sixth
Amendment. He also requests that the court grant a writ of
|*4]
habeas corpus on the basis of cumulative error supported by
these claims
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas
action for relief under 28 U.S.C. section 2254.28 U.S.C. § 1331
Petitioner was convicted and sentenced in Alameda county,
which lies in the Northern District of California. Therefore,
this court has jurisdiction over his claims. 28 U.S.C. §$§ 84,
2241(d).
EXHAUSTION
I. Basic Requirement
Prisoners in state custody who wish to challenge collaterally in
federal habeas proceedings either the fact or length of their
confinement are first required to exhaust state judicial
remedies. See 28 U.S.C. §$ 2254(b), (c). Either by direct appeal
or through collateral proceedings, the prisoner must give a
state’s highest court an opportunity to rule on the merits of
each and every claim the prisoner seeks to raise in federal
court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.
1728, 144 L. Ed. 2d 1 (1999).
When, however, it would be futile or create undue delay to
strictly adhere to the requirement, it is appropriate for a
district court to entertain a petitioner’s claims on the merits
despite incomplete exhaustion. See 28 U.S.C. § 2254(b)(1)(B)
(writ may be granted when
“there is an absence of available State corrective process” or
“circumstances exist that render such process ineffective to
protect the rights of the applicant”). Moreover, “a writ of
habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available
A-8
in the courts of the State,” although the court is not required
to do so. 28 U.S.C. 2254(b)(2); Gatlin v. Madding, 189 F.3d
882, 889 (9th Cir. 1999).
In analyzing exhaustion, a federal court should evaluate
whether a prisoner’s claims were exhausted at the time they
were filed, rather than when the court ultimately addresses the
claims. Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993).
Il. Finality of the State Proceedings
Petitioner characterized the dismissal without prejudice by the
California Supreme Court of his direct appeal and collateral
relief petition as a final decision qualifying for exhaustion
purposes pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). The State does not challenge
this characterization.
This court holds that petitioner’s characterization of the
dismissal as final is incorrect, but it acknowledges that the
statute of limitations
[*6]
imposed by AEDPA created a unique predicament in this
action. The statute mandates that a “l-year period of
limitation shall apply to an application for 3 a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.” 28 U.S.C. § 2244(d)(1). The period of limitation
begins to run from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the
time for seeking such review.” Id. § 2244 (d)(1)(A). Here, this
A-9
period of limitation began to run from the date the California
Supreme Court issued its dismissal, October 26, 2005, and
ultimately expired prior to the Court’s final disposition in
Cage, on April 9, 2007. Petitioner filed for relief with this court
on October 25, 2006, prior to the expiration of the AEDPA
period of limitations. Had he waited for an opportunity to
exercise his last available state remedy, he would have forfeited
his opportunity to access his federal remedy. See, e.g.,
Ferguson v. Palmateer, 321 F3d 820, 823 (9th Cir. 2003)
(Oregon petitioner who filed for state post-conviction relief
within state two-year statutory period was not permitted to
proceed on federal habeas action).
This court refuses
bea if
to make petitioner choose between his state and federal
remedies. The exhaustion requirement, while necessary,
becomes unduly burdensome if applied in a manner that strips
petitioner of his opportunity to seek federal habeas review.
Petitioner waited until the last possible day prior to the
expiration of the statutory period to file his habeas petition
with this court. This demonstrates that he waited in good faith
for an opportunity to exercise his state remedy until the final
date practicable.
Because of the unique procedural circumstances of the case,
this court will review petitioner’s claims on the merits.
Specifically, the court will review the findings of the California
Court of Appeal as to each of petitioner’s claims since that
court was the last to issue a decision on the merits.
A-10
STANDARD OF REVIEW
I. Habeas Corpus Review
This Court may entertain a petition for writ of habeas corpus
“Con] 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.” 28 U.S.C. § 2254(a). The petition may not be granted
with respect to any claim that was adjudicated on
[*8]
the merits in state court unless the state court’s adjudication
of the claim: “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Id. $
2254(d). Petitioner has the burden to prove the violation by a
preponderance of the evidence. Silva v. Woodford, 279 F.3d
825, 835 (9th Cir. 2002).
Under AEDPA, state court rulings are to be evaluated under
a “highly deferential” standard of review. Woodford v. Visciotti,
537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per
curium). Decisions challenged as unreasonable applications of
Supreme Court law must not merely be erroneous, but
“objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63,
75, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). Where the state
court does not provide a reasoned decision, this court performs
A-11
“an ‘independent review of the record’ to ascertain whether
the state court decision was objectively unreasonable.” Himes
v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (citing Delgado
v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)).
Furthermore,
[*9]
this court analyzes claims of harmless error on habeas
petitions pursuant to the standard adopted in Brecht uv.
Abrahamson, 507 U.S. 619, 638, 113 S. Ct. 1710, 123 L. Ed. 2d
353 (1993). See Morales v. Woodford, 336 F.3d 1136, 1148 (9th
Cir. 2003) (applying Brecht review). The court considers
harmful only those errors shown to have a “’substantial and
injurious effect or influence in determining a jury’s verdict.’”
Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). In
other words, only error from which petitioner can establish
“actual prejudice” will survive harmless error analysis. Id.
(citing United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 88
L. Ed. 2d 814 (1986)).
Finally, this court presumes factual findings of a state court to
be correct, and the burden falls upon petitioner to rebut this
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1). Factual findings made by state courts, whether trial
or appellate, are given this deference. Rushen v. Spain, 464
U.S. 114, 120, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (per
curium); Tinsley v. Borg, 895 F.2d 520, 526 (9th Cir. 1990).
However, where a petitioner challenges a state court’s findings
based entirely on the state record, the “unreasonable
A-12
determination” standard of 28 U.S.C. section 2254(d)(2)
[*10]
must be applied. Taylor v. Maddox, 366 F.3d 992 (9th Cir.
2004).
If. Due Process
Decisions of state courts involving application of state law
cannot be upset on federal habeas review unless they “so
fatally infected the proceedings as to render them
fundamentally unfair” in violation of petitioner’s right to due
process. Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th
Cir. 1986). When a state court applies a state standard stricter
or functionally equivalent to a corresponding federal standard,
this court will defer to the state court’s determination.
Stephens v. Hall, 294 F.3d 210, 214-15 (11th Cir. 2002); Cox v.
Burger, 398 F.3d 1025, 1030 (8th Cir. 2005); Owens v. Frank,
394 F.3d 490, 501 n.7 (7th Cir. 2005); McCambridge v. Halli,
303 F-3d 24, 35 (1st Cir. 2002).
FACTUAL BACKGROUND
Petitioner dated Omar for approximately two or three years
prior to stabbing her to death on October 8, 1998. RT 226, 229.
Omar’s sister, Zelika, described the relationship between her
sister and petitioner as “sick” and “crazy”. Id. at 228. At
petitioner’s trial, she described seeing bruises on her sister and
witnessing petitioner verbally abuse Omar. Specifically, she
had also listened to numerous voice
(*11]
mail messages petitioner had left for her sister, in which he
screamed threats such as “watch out, bitch, I’m going to cut
you up. I’m going to fuck you up. I’m going to cut your body,
chop youup... and you think I’m a fucking joke. I’m not. Just
you watch.” Id. at 256. She also described petitioner alluding
to killing both sisters, saying he had “everything planned out
“and “if you’re there too, Zelika, I’m going to take care of you
too.” Id. at 234-58.
Petitioner’s stepfather, Paul Lightfoot, who lived with
petitioner at the time of the killing, testified that petitioner
and Omar used bad language, had problems in their
relationship and were mutually abusive both verbally and
physically. Id. at 371-74. Lightfoot relayed that prior to the
killing petitioner told him that Omar had obtained a
restraining order against him and that he was concerned about
going to jail over a case Omar had filed against him. Id. at 380-
82. About six months prior to the killing, a neighbor witnessed
petitioner yell at Omar, grab her and hit her on the head while
Omar cried hysterically. Id. at 215-16. On four separate
occasions Omar called the police in response to violent or
threatening acts by the
[*12]
petitioner. Id. at 58, 62, 141-48, 157-63, 184, 522-37. In
addition, Michael Tong, an acquaintance of petitioner,
acknowledged having made a statement to the police about an
incident in which petitioner told him that he had tried to choke
Omar. Id. at 191, 198.
Omar and Zelika both attended Heald College, and Zelika
testified that her sister had planned to stop dating petitioner
when she started classes, but petitioner had nonetheless
remained a part of Omar’s life--confronting her at school,
following her, and discouraging her from her studies by telling
her she was a loser and would not make it through her first
quarter. Id. at 254-58. On the day of the killing, Omar had just
completed that first quarter. A friend Omar was living with,
Wida Akbar, testified that Omar was going out to dinner with
petitioner to celebrate. Id. at 277, 279. Akbar also testified that
Omar told her that she could not dress up too much or make
herself look really beautiful because petitioner would kill her.
Id. at 279-80.
Samuel Dorrough heard Omar’s screams at 8:00 p.m. He
testified he had heard three screams--each cut short--coming
seconds apart from a red hatchback, and that the car horn was
blowing. Id. at 290-98.
(*13]
After leaving to call 911 and returning to the vicinity of the
car, he testified he heard what sounded like someone trying to
close a car truck with something preventing the latch from
catching. Id. at 298. He saw only a man in the car at this point,
and watched the car drive down the street, hesitate, and turn
down the road. Id. at 298-302. Other neighbors heard the same
horn-honking and screaming. Id. at 475-76. Frank Bryan
testified to seeing two people in the car moving around and
hearing frantic screaming--a woman yelling, “Oh, God, help,”
and a man yelling. Id. at 476-78, 491. Bryan heard keys being
thrown from the car at one point, saw the man get out, walk
A-15
around the car and struggle to forcefully close the passenger
door. Id. at 478-80.
Janeen Leech and Gary Eoff both saw petitioner run a stop
sign while speeding down Redwood Road around 8 p.m. Id. at
319-20, 349-51. Leech heard a thud, saw petitioner get out of
the car and scoop up what would later be determined to be
Omar’s body and throw it back in the car. Id. at 323-25. Eoff
also saw petitioner bending over to pick a limp, unmoving
Omar up off the ground and throw her in the car. Id. at 349-51.
After petitioner resumed
[*14]
driving, Leech could see a spatter of red on the passenger
window, which prompted her to call 911. Id. at 321-22, 327.
When officers arrived at the location, they found a puddle of
blood. Id. at 328.
Petitioner’s stepfather, Lightfoot, was awakened by his wife
shortly after these events. Petitioner was in the hallway of
their home slicing his throat and wrists with a knife. Id. at 3'76-
77. Lightfoot attempted to physically restrain petitioner, and
testified that while doing so, petitioner said, “Please don’t stop
me. I’ve done something terrible and the police and going to
lock me up.” Id. at 378. At that point police officers arrived at
the residence. Id. at 379. They recovered the keys to the red
hatchback. Id. at 470. Officers who inspected the car found a
large amount of blood and a bent knife on the dashboard of the
vehicle. Id. at 394-95, 452-54, 497. When officers asked
petitioner--who was covered with blood from his self-inflicted
wounds, was behaving irrationally and had been strapped to a
A-16
backboard--the whereabouts of the girl, petitioner was non-
responsive. Id. at 421-26, 500-03. After being repeatedly asked,
petitioner told the officers that he and his girlfriend had just
[*15]
broken up and that she had overdosed on sleeping pills because
she was upset. Id. at 426-28.
Omar was eventually found in the back of the hatchback. Id. at
430, 452. An autopsy revealed that Omar had suffered 23 stab
and incise wounds to her upper back, left shoulder, left arm,
upper chest, lower chest, lower left abdomen and her face and
neck. Id. at 93-99. One wound to her upper chest penetrated
her lung, which caused bleeding to her chest cavity and leakage
of air from her lung, which without medical attention, would
have alone been fatal. Id. at 105-06, 132. She also suffered
blunt force injuries to her head, face, legs and back, including
a skull fracture in the back of her head, consistent with a fall,
which alone could also be fatal without immediate medical
attention. Id. at 89-90, 104, 106-07. The forensic pathologist
determined the cause of Omar’s death to be shock and
hemorrhage due to the multiple stab and incise wounds and
blunt head trauma. Id. at RT 106.
DISCUSSION
Petitioner Morales cites four categories of error he believes
violated his rights to Due Process in violation of the Fourteenth
Amendment and to a fair trial under the Sixth Amendment. He
claims: (1) the state
[*16]
trial court made “instructional errors” when determining
sentencing; (2) the state trial court erred in its evidentiary
rulings--allowing evidence that should have been excluded to
be admitted, while excluding admissible evidence; (3) he was
unduly prejudiced by prosecutorial misconduct during the
closing arguments of his trial; and (4) he received ineffective
assistance of counsel. This court will address each category of
error in turn, and will then weigh the cumulative effect of any
demonstrated errors. I. Instructional Errors As a general
matter, “judges are presumed to know the law and to apply it
in making their decisions.” Walton v. Arizona, 497 U.S. 639,
653, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584, 122 S, Ct.
2428, 153 L. Ed. 2d 556 (2002)). A trial court judge need not
explain his or her reasoning in reaching a particular decision,
Arizona v. Washington, 434 U.S. 497, 517, 98 S. Ct. 824, 54 L.
Ed. 2d 717 (1978), and in instances in which the record does
not indicate the standards used by the court, the court is
presumed to have applied correct legal standards, Wainwright
v. Witt, 469 U.S. 412, 431, 105 S. Ct. 844, 83 L. Ed. 2d 841
(1985).
Morales claims the state trial judge erred in the following
ways: (1) improperly defined the terms “premeditation,”
[*17]
“deliberation” and “unconsidered rash impulse,” (2) failed to
A-18
consider the defense of “unreasonable belief of self defense,”
(3) incorrectly ruled that there was no evidence of provocation
or of a “rash, impulsive act “ and (4) improperly required the
defense to show evidence of provocation or a rash impulse. The
State counters that the trial court judge in this case issued no
“instructions” because petitioner waived his right to a jury
trial and the court is presumed to have applied correct legal
standards. Further, it argues that the trial court applied
appropriate legal standards and definitions, considered
relevant defenses--including imperfect self defense--and
reasonably found no evidence of provocation on the victim’s
part. The State ultimately asserts that the errors, if any, are
harmless.
The California Court of Appeal rejected each of petitioners
claims relating to reliance on legal error. It found that the trial
judge applied appropriate legal standards, reached reasonable
conclusions based on the evidence available and sufficiently
considered unreasonable self defense. This court considers
each of petitioner’s claims in turn.
A. “Premeditation” and “Deliberation”
Petitioner
[*18]
first argues that the trial court erred in its definition of the
terms “premeditation” and “deliberation.” Without citation to
the record, he specifically faults the trial judge for considering
petitioner’s past deliberations as to whether he should kill his
victim as opposed to deliberations related to the particular
A-19
instance in which he actually kiiled her. He cites California
Jury Instruction (““CALJIC”) 8.20 3, which requires “the
proposed course of action”--the actual killing--to be
“considered beforehand.” The portion of the jury instruction
petitioner appears to refer to currently reads as follows: The
word “deliberate” means formed or arrived at or determined
upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.
The word “premeditated’” means considered beforehand. If you
find that the killing was preceded and accompanied by a clear,
deliberate intent on the part of the defendant to kill, which was
the result of deliberation and premeditation, so that it must
have been formed upon pre-existing reflection and not under
a sudden heat of passion or other condition precluding the idea
of deliberation, it is murder of the
\*19]
first degree
CALJIC 8.20 (emphasis added)
3 In its entirety, CAL-JIC 8.20 reads as follows
All murder which is perpetrated by any kind of willful,
deliberate and premeditated killing with express malice
aforethought is murder of the first degree
The word “willful,” as used in this instruction, means
intentional.
The word “deliberate” means formed or arrived at or
A-20
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.
The word “premeditated” means considered beforehand
If you find that the killing was preceded and accompanied by
a clear, deliberate intent on the part of the defendant to kill,
which was the result of deliberation and premeditation, so that
it must have been formed upon pre-existing reflection and not
under a sudden heat of passion or other condition precluding
the idea of deliberation, it is murder of the first depree
The law does not undertake to measure in units of time the
length of the period during which the thought must be
pondered before it can ripen into an intent to kill which is truly
deliberate and premeditated. The time will vary with different
individuals and under varying circumstances
The
[*20]
truce test is not the duration of time, but rather the extent of
the reflection. A cold, calculated judgment and decision may be
arrived at in a short period of time, but a mere unconsidered
and rash impulse, even though it includes an intent to kill, is
not deliberation and premeditation as will fix an unlawful
killing as murder of the first degree.
To constitute a deliberate and premeditated killing, the slayer
must weigh and consider the question of killing and the
reasons for and against such a choice and, having in mind the
consequences, [he] [she] decides to and does kill,
A-21
Petitioner also argues that the trial court misapplied a three-
category analysis for determining premeditation and
deliberation outlined by the California Supreme Court in
People v. Anderson, 70 Cal. 2d 15, 26-27, 73 Cal. Rptr. 550, 447
P2d 942 (1968). The Anderson analysis focuses on three types
of evidence: (1) planning activity, (2) motive and (3) manner of
killing, and that court held that first degree murder is
supported “when there is evidence of all three types” or “at
least extremely strong evidence of (1) or evidence of (2) in
conjunction with either (1) or (3).” Id. Petitioner contends that
no evidence of either the first or second
[*21]
type existed in the trial record, and that the trial judge
improperly considered prior threats he made against Omar not
as circumstantial evidence of motive but as proof of
premeditation and deliberation. He contends that the abstract
desire to kill does not con™itute planning activity and that no
other evidence of planning activity was presented to the court.
And, he argues that because there was no pattern to the cuts
and slashes on his victim’s body and only a few stabs were
deep, the injuries are more zonsistent with a sudden explosion
of violence than a calculated murder.
Based on his view of the Anderson factors as mandatory to a
finding of premeditated murder, petitioner, citing Keating v.
Hood, 191 F-3d 1053 (9th Cir. 1999), argues his due process
rights were violated when the trial court convicted him without
finding, beyond a reasonable doubt, every necessary element to
support the conviction. This, he argues, was not harmless error
because such a finding is contingent upon the additional
A-22
determination that sufficient evidence supports the trial
court’s verdict.
The State maintains that petitioner misrepresents the trial
court’s premeditation analysis. The trial judge, it
[*22]
argues, cited not only petit :oner’s past general threats to kill
Omar but evidence of his prior attempt to kill her only two
months earlier, 4 the volatile, demeaning, vicious and harsh
relationship petitioner had with Omar as well as her own
actions immediately prior to her death, which a witness had
testified were aimed at pleasing petitioner rather than inviting
an angry response. 5 The State also argues that petitioner
improperly relies on an erroneous challenge of the trial court’s
application of state law. The State cites the California Supreme
Court’s more recent statements interpreting the Anderson
factors in People v. Perez, 2 Cal. 4th 1117, 9 Cal. Rptr. 2d 577,
831 P2d 1159 (1992), which it argues advises against accepting
petitioner’s reading of Anderson.
4 East Bay Regional Park Police Chief Norman LaPera
testified having pulled up next to petitioner and Omar on
Redwood Road at Castro Valley Boulevard on August 2, 1998,
where he could hear Omar crying, saying “no “ and “leave me
alone,” and that when he made eye contact with her, she
mouthed the words “help me. “ RT 522-28, 532. He further
testified that he stopped petitioner’s vehicle, at which time he
witnessed Omar run from the car to the back seat of his
[*23]
A-23
own car while petitioner ran towards her, saying he was going
to hurt her and swearing at her. Id. at 529-530. Upon pulling
into a strip mall at the side of the intersection, Omar continued
to cry and told LaPera several times that petitioner had told
her he was driving up the road to kill her. Id. at 531-32. Once
both vehicles were parked, LaPera said petitioner continued to
yell at Omar and ultimately had to be restrained and placed in
another police car. Id. at 535-36. LaPerla testified that Omar
continued to be upset, and repeatedly stated petitioner was
taking her up the road to kill her. Id. at 535. Omar had a three-
inch abrasion on the back of her neck and a smaller one on the
front of her neck, as well as superficial scratches on her neck
and wrists. Id. at 179. In his discussion of premeditation, the
judge stated, “[petitioner] once-had even beaten Miss Omar
while driving during the -- toward the empty reaches of
Redwood Road, telling her he was taking her there to kill her.
Perhaps the fortuitous intervention of Chief Perrea [sic] saved
her.” CT 506.
5 The judge stated that “[t]he evidence shows that Miss Omar,
in a celebrating frame of mind, dressed in party clothes, was
planning
(*24]
on a special night out with her boyfriend . . . . She dressed in
clothes that were specifically chosen not to upset Mr. Morales.”
CT 507-08.
The California Court of Appeals agreed with the State’s
analysis of the law, explaining that in Perez the California
Supreme Court held that the specific categories described in
A-24
Anderson were not a “sine qua non to finding first degree
premeditated murder, nor are they exclusive.” Resp.’s Opp.,
Exh. I at 8 (quoting Perez, 2 Cal. 4th at 1125). Instead, the
California Supreme Court said that “Anderson did not purport
to establish an exhaustive list that would exclude all other
types and combinations of evidence that could support a
finding of premeditation and deliberation” and it treated the
categories as guidelines for determining whether a killing has
been the result of “careful thought and weighing of
considerations for and against the proposed course of action.”
Perez, 2 Cal. 4th at 1123, 1125. Proceeding in a manner
consistent with Perez, petitioner’s trial judge stated that he
had “made reference to guiding principles referenced in
CALJIC, “ that for a killing to be deliberate “it must have been
formed as a result of careful thought and weighing
[*25]
oY considerations for and against the proposed course of
action” and that “the true test of deliberation is the extent of
reflection.” CT 504-07. Based on this, the appellate court
affirmed the trial court’s application of state law.
In reviewing the manner in which the trial judge applied the
appropriate state law to the facts, the appellate court noted
that petitioner “had threatened to kill [his victim] by ‘cutting’
her, virtually the same manner in which he committed the
murder.” Resp.’s Opp., Exh. [ at 8. It also cited the fact that he
had stabbed her 23 times, “including a wound to the chest that
alone would have been fatal,” citing People v. Hillery, 62 Cal.
2d 692, 703-04, 44 Cal. Rptr. 30, 401 P2d 382 (1965), and
People v. Perrotta, 224 Cal. App. 2d 498, 505, 36 Cal. Rptr. 813
A-25
(1964), for the propositions, respectively that “plunging a
lethal weapon into the chest evidences a deliberate intention
to kill” and “severe and numerous wounds require[] more than
a fleeting period of time to inflict.” The appellate court
corcluded that the nature and extent of the injuries petitioner
inflicted on his victim coupled with his prior threats of violence
supplied sufficient evidence in the record to justify the trial
court’s finding of premeditation
[*26]
and deliberation.
This court finds nothing unreasonable in the California Court
of Appeal’s interpretation of the facts, and petitioner has not
argued that the state law is inconsistent with federal standards
for determining the existence of premeditation or that the
state standard is less protective of his rights. 6 Instead,
petitioner argues that Perez and other cases interpreting the
Anderson factors should be considered factually
distinguishable from his case because specific evidence of
unhurried or calculated action was more plentiful in those
cases. See, e.g., Perez, 2 Cal. 4th at 1126 (defendant had parked
car away from victim’s home, “surreptitiously entered,” and in
the course of killing broke one knife and had taken pause to
retrieve a second), People v. Sanchez, 12 Cal. 4th 1, 18, 47 Cal.
Rptr. 2d 843, 906 P2d 1129 (defendant and accomplice
cooperated--one helping to restrain while the other stabbed).
However, this court is required to give appropriate deference
to reasonable findings of fact and applications of state law by
the state trial court. It is not this court’s role to re-evaluate the
facts based on petitioner’s disagreement with the state court’s
A-26
analysis. Nor is it proper for this court to second-guess
[*27]
the state appellate court’s application of state law. Therefore,
this court holds that the state pre-eedings were not so flawed
as to have been fundamentally unfair in violation of
petitioner’s due process rights.
6 The State correctly argues that the law applied conforms to
the equivalent federal law for determining premeditation.
Specifically, the State points to United States v. Free, 841 F.2d
321, 325 (9th Cir. 1988), in which the Ninth Circuit held that
premeditation may be established by “circumstantial evidence
and inferences drawn from it,” including but not limited to
consideration of a defendant’s “prior relationship to the victim,
the defendant’s carrying of the murder weapeén to the scene,
and the manner of the killing.”
B. “Unconsidered Rash Impulse”
Petitioner claims, again without citation to the record, that the
trial judge equated “unconsidered rash impulse” with “lack of
provocation” in discord with CALJIC 8.20 and state law.
CALJIC 8.20, petitioner relays, emphasizes the contrast
between cold, calculated judgment and decision with an
unconsidered rash impulse. He asserts that finding a lack of
provocation is not sufficient to support finding deliberation
and premeditation,
A-2.7
[*28]
and he thus argues that because instructions that a reasonable
juror could interpret as shifting the burden of proof violate due
process, his rights have been so violated.
The State relies upon the Court of Appeal’s determination that
this argument is without merit because, on the whole, the trial
court’s statements show no misunderstanding of the law. The
State cited the trial judge’s relevant remarks that “[t]he Court
is asked to accept on the one hand that based upon a volatile,
demeaning, vicious and harsh relationship that Mr. Morales
was pushed to the breaking point and that he killed upon an
unconsidered and rash impulse.” Resp.’s Opp., Exh. I at 9. The
appellate court concluded that such remarks “reflect that [the
trial court] considered the evidence presented in light of the
theories presented and determined that the killing constituted
first degree murder.” Id. Petitioner argued at trial that his
tumultuous relationship with his victim should be considered
evidence that he may have had reason to become angry with
her and suddenly engage in an unpremeditated act of violence
against her. The appellate court reasonably interpreted the
trial court’s comments as referring to petitioner’s
[*29]
own theory of the case.
Moreover, the trial judge stated that there was “overwhelming
direct and circumstantial evidence that the critical element of
expressed ‘malice aforethought [was] proven beyond a
reasonable doubt.’” CT 509. The State provides the court
A-28
elaboration on this point:
Omar suffered 23 stab wounds on her face, neck, back and
chest. There was evidence that petitioner was jealous of Omar
and did not want her to look too beautiful. The wounds to her
face show a deliberated and calculated intent to disfigure her.
Omar screamed and honked the horn several times when
petitioner was attacking her; each time her screams were cut
short. There was also evidence that Omar attempted to get out
of the car to escape the attack: petitioner got out of the car,
went to the passenger side, and struggled to close the door.
After petitioner drove from the scene, Omar fell from the car.
Petitioner callously picked her up and literally threw her
motionless body back in the car.
Resp.’s Opp. at 22.
Petitioner’s trial was before a judge, not a jury. The trial judge
is presumed to have understood correct legal standards in the
absence of evidence in his statements to the contrary. In light
of
[*30]
the evidence on record and theories presented by petitioner at
his trial, the appellate court reasonably concluded that no
statements of the trial judge indicate the court misunderstood
the law. It was therefore appropriate that the appellate court
rejected petitioner’s claim, and this court will similarly deny
relief.
C. Defense of “Unreasonable Belief of Self Defense”
A-29
Petitioner next contends that the trial court did not adequately
consider evidence of unreasonable or imperfect self defense.
For support, petitioner cites to People v. Uriarte, 223 Cal. App.
3d 192, 198, 272 Cal. Rptr. 693 (1990), which requires that a
judge instruct ajury on the meaning of the defense where some
evidence has been presented to support it. He claims that
testimony from witnesses that the victim at some time told
petitioner she would “kick [his] ass,” and the fact that some of
petitioner’s blood was found on the knife which he used ‘to stab
her, should have sufficed to require an instruction about the
defense.
The State maintains that the only evidence petitioner
presented regarding Omar’s ability to do him harm was that
she had at some point in their relationship told him she had
“the capability through friends and family
[*31]
to have his ass kicked.” RT 752. Omar herself was five feet, one
inch tall and weighed only 110 pounds. Id. at 159. Petitioner
appears to have presented no evidence as to what could have
made him either rationally or irrationally fearful of his victim
on the evening of the killing. DNA testing admitted during the
trial did indicate petitioner could not be excluded from “minor
types of blood” collected from the knife used in the killing;
however, the State points out that many of the stab wounds
petitioner inflicted on Omar required “a great deal of force”--so
much so that “the blade of the knife was bent”--so it would not
be unreasonable to conclude that he might have incurred some
minor cuts, which would have caused some amount of his blood
to end up on the knife. Id. at 132, 454.
A-30
Further, the State suggests that imperfect self defense is
essentially equivalent to finding that a killing was a form of
voluntary manslaughter, and that the court was not required
to consider sua sponte this lesser included offense because of
a lack of substantial evidence that defendant killed Omar in
unreasonable self defense.
The Court of Appeals cited the trial court’s statement that it
was “convinced
[*32]
beyond a reasonable doubt that the wounds were not inflicted
in self-defense,” and it stated it was satisfied that the trial
court properly applied and followed the law. Resp.’s Opp., Exh.
I at 10. It cited California Evidence Code (“CEC”) section 664,
which in relevant part provides: “[I]t is presumed that official
duty has been regularly performed.” Id. at 9.
Again, the appellate court conducted the appropriate analysis;
a judge sitting in place of a jury is presumed to know the law.
Walton, 497 U.S. at 653. Petitioner’s reliance on Uriarte is
nonsensical in the context of appeal from a bench trial, in
which there is nojury to instruct. The only question is whether
the judge himself considered correct legal standards and
weighed the evidence correctly, and nothing in the trial record
indicates he did not. Rather, the trial court appears reasonably
to have concluded that self defense--reasonable or otherwise--
was not the motivation of defendant’s actions based on the
weight of the evidence. Petitioner stabbed Omar no less than
23 times, the strikes were wilfully inflicted upon her back,
front, and face, and time elapsed between cuts. CT 506. There:
A-31
is no indication that the court failed
[*33]
to entertain petitioner’s defense or consider relevant evidence.
For these reasons, this court finds the Court of Appeal’s
rejection of petitioner’s claim appropriate.
D. Evidence of Provocation or of a “Rash, Impulsive Act”
Petitioner argues next that the trial court erred in finding no
evidence of provocation or of a rash, impulsive act. He suggests
that because witness accounts that Omar’s screams during the
killing came 10 to 15 seconds apart and because he was
extremely distraught after the killing, evidence existed which
supported impulse. He claims the trial court erred in requiring
proof of provocation to support a finding that he acted in a
rash, impulsive manner, and he argues that the trial court
impermissibly shifted the burden of proving he acted in a rash,
impulsive manner to the defense in violation of his due process
rights.
The State contends petitioner takes the trial court’s words out
of context. The Court of Appeal agreed with the State and
rejected petitioner’s claim. At trial, petitioner relied on hisown
assertion that some provocation sparked the rash, impulsive
act of killing. In context, the trial judge stated:
Several scenarios have been proposed, Defense suggested [*34]
the evidence shows a volatile, physical, abusive and self
destructive relationship. And something happened in the car
to force a rash, impulsive act by Mr. Morales. While of course,
A-32
possible, there is ro evidence to support this version. While
acknowledging a mercurial temperament, all the evidence
points to a vibrant young woman out for a happy celebration.
CT 508.
The appellate court held that the trial court’s comments “|do]
not demonstrate that the court placed the burden upon
defendant of introducing direct evidence of provocation in the
car “ but that the trial court “was simply reviewing the
evidence and theories presented and giving its conclusion that
the evidence failed to support defendant’s theory.” Resp.’s
Opp., Exh. I at 10. The court reasonably deemed the relevant
statements made by the trial judge to be a rejection of
petitioner’s theory that Omar provoked him to act in a rash,
impulsive manner--not a requirement that petitioner prove an
act of provocation to demonstrate impulsive behavior sufficient
to escape a first degree murder conviction. Id. This court
agrees, Petitioner’s contention that there was some evidence
supporting a rash act which the trial court ignored
[*35]
is not supported by the record; rather, as the state courts both
found, the weight of the evidence in the case, much of which
has already been discussed, convinced the trial judge beyond a
reasonable doubt that petitioner committed premeditated and
deliberate murder. Petitioner was not forced to carry an
inappropriate burden; he failed to raise sufficient facts to
negate the prosecution’s showing. Because this court finds the
determination by the appellate court to be reasonable,
petitioner’s argument fails and no error is assigned.
A-33
If. Evidentiary Determinations
Petitioner asserts that the trial court impermissibly: (1)
admitted harmful testimonial! hearsay evidence of his deceased
victim; (2) admitted a similarly damaging prior statement
given to the police by Michael Tong; and (3) excluded evidence
of Omar’s past violent acts. The State argues that: (1)
admission of statements previously made by Omar to police
were reasonable pursuant to CEC section 1370, (2) petitioner
waived objections to the admission of Michael ‘Tong’s
statements; and (3) the trial court properly excluded evidence
of the victim’s alleged prior violent conduct. The Court of
Appeal reviewed petitioner’s claims, and
| *36 |
determined that the trial court committed no error
A. Admission of Omar's prior statement:
At trial, Nelva Omar’s statements made to the police about
prior acts of misconduct by petitioner on four separate
occasions were admitted into evidence pursuant to CEC section
1370.7 These statements narrated threats made by petitioner
to Omar at various times. CT 422. Petitioner has challenged
the admission of these sLatements, claiming a violation of his
right of confrontation under the Sixth Amendment because he
had no opportunity to cross-examine Omar about the
statements. &
7 CHC 1370 provides for the introduction into evidence the
hearsay statements of a declarant “if all of the following
conditions are met”
(1) The statement purports to narrate, describe, or explain the
infliction or threat of physical injury upon the declarant
(2) The declarant is unavailable as a witness pursuant to
Section 240
(3) The statement was made at or near the time of the
infliction or threat of physical injury. Evidence of statements
made more than five years before the filing of the current
action or proceeding shal! be inadmissible under this section
(4) The statement was made under circumstances that would
[*537]
indicate its trustworthiness
8 Petitioner did not object to the admission of these statements
at trial on the basis of inability to confront because at the time
of trial the Supreme Court had not yet decided Craw/ord v
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. led. 2d 177
(2004). As the state appellate court held, it is appropriate to
excuse this lack of objection on the basis that such objection
would have been “unsupported by substantive law then in
existence.” People v. Welch, 5 Cal.4th 228, 237, 19 Cal. Rptr. 2d
520, 851 P2d 802 (1993). This court, however, considers the
facts of petitioner's case in light of the rules of confrontation
set forth in Crawford because that case was decided while
petitioner's direct state appeal was pending. See Linkletter v
Walker, 381 U.S. 618, 627, 85 S. Ct. 1731, 14 L. Ed. 2d 601
(1965) (“a change in law will be given effect while a case is on
direct review”).
The State contends that admission of the prior statements was
reasonable because petitioner forfeited his right of
confrontation, and alternatively, the statements were properly
admitted under the standard set forth in Crawford uv.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), as refined by the United States and California Supreme
Courts in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006), and People v. Cage, 40 Cal. 4th 965,
56 Cal. Rptr. 3d 789, 155 P3d 205 (2007).
[*38]
The State further argues any potential error was harmless
because the question of Morales’ identity as the person who
killed Omar was not at issue. In response to the State’s
forfeiture argument petitioner urges this court to impose a
specific intent requirement into the equitable rule of forfeiture.
Petitioner claims he cannot be deemed to have forfeited his
right to confrontation unless he killed Omar in order to
specifically keep her from testifying at trial. In support of this
position, petitioner cites Federal Rule of Evidence (“FRE”)
804(b6)(6), which requires a showing that the party against
whom a statement has been offered “has engaged or acquiesced
in wrong-doing that was intended to, and did procure the
unavailability of the declarant as a witness.” Petitioner cites to
various cases and official commentary to the rule which bolster
the argument that FRE 804(6)(6) requires a specific intent to
make a witness unavailable.
A-36
The Court of Appeal deemed petitioner’s right of confrontation
forfeited pursuant to Crawford and Reynolds, and cited cases
from other circuits to illustrate the appropriateness of the
forfeiture exception despite a lack of specific intent to make the
witness
[*39]
unavailable. 9 Resp.’s Opp., Exh. I at 10-13. This court agrees
with the appellate court’s conclusion and finds that petitioner
forfeited his right to confront Omar when he killed her.
9 The court cited United States v. Emery, 186 F3d 921, 926
(8th Cir. 1999), and State v. Meeks, 277 Kan. 609, 88 P3d 789,
794 (Kan. 2004).
Petitioner’s forfeiture argument, although superficially logical,
is untenable because petitioner errs by conflating the common
law rule of equitable forfeiture of the right of confrontation
with the more recently developed and distinct FRE 804(6)(6).
The rationale for rejecting petitioner’s argument was
succinctly stated by the California Supreme Court in the case
of People v. Giles, 40 Cal. 4th 833, 55 Cal. Rptr. 3d 133, 152
P3d 433 (2007). 10 That court recognized that the United
States Supreme Court reaffirmed an equitable forfeiture
exception to the right of confrontation in Crawford, as it was
originally defined in the case of Reynolds v. United States, 98
U.S. 145, 25 L. Ed. 244 (1879). Id. at 840-41; see also
Crawford, 541 U.S. at 62 n. 9 (“rule of forfeiture by
wrongdoing (which we accept) extinguishes confrontation
claims on essentially equitable grounds”). The court then
reasoned that equity should not allow another
A-37
[*40]
to take advantage of his or her own wrong; and, additionally,
explained that the equitable rule referred to in Crawford is one
of forfeiture, rather than waiver, and therefore does not
require the same element of intent that must be shown to
trigger application of FRE 804(6)(6). Giles, 40 Cal. 4th at 849-
49 (citing Reynolds, 98 U.S. at 159 (“no one shall be permitted
to take advantage of his own wrong” and “ifa witness is absent
by his own wrongful procurement, he cannot complain if
competent evidence is submitted to supply the place of that
which he has kept away”)); United States v. Garcia-Meza, 403
F.3d 364, 370 (6th Cir. 2005) (Supreme Court’s rationale for
affirming rule of forfeiture “strongly suggests that the rule’s
applicability does not hinge on the wrongdoer’s motive.”);
United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123
L. Ed. 2d 508 (1993) (“forfeiture” and “waiver” are distinctly
different terms); Freytag v. Commissioner, 501 U.S. 868, 894-
95, 111 S. Ct. 2631, 115 L. Ed. 2d 764 (“Waiver, the
‘intentional relinquishment or abandonment of a known right
or privilege’ is merely one means by which a forfeiture may
occur. Some rights may be forfeited by means short of
waiver.”) (citations omitted)).
10 This court notes, but does
(*41]
not rely on, the holding in Giles. The court agrees with the
analysis put forth by the Giles court and cites it for illustrative
purposes.
e
oy)
io)
The equitable principle of not rewarding wrongdoing and
recognizing that the exception at issue is one of forfeiture
rather than waiver both negate requiring specific intent to
make a witness unavailable when a defendant has caused the
unaveilability of that witness. When an exception to the
hearsay rule would otherwise make a statement admissible, the
Confrontation Clause does not stand as a bar if the defendant
is responsible for the unavailability of the declarant.
Here, it is undisputed that petitioner killed Nelva Omar.
Although statements made on at least three of the four
occasions in question were potentially testimonial in nature,
the statements were all properly admitted pursuant to CEC
section sections 1370 and 1240. 11 This court finds that the
state appellate court correctly found that petitioner suffered no
constitutional error by the admission of Omar’s statements at
trial.
li The court notes, but finds no need to address, petitioner’s
objection based on People v. Kons, 108 Cal. App. 4th 514, 133
Cal. Rptr. 2d 520 (2003), that CEC section 1370 has been
deemed
[*42]
not to qualify as a firmly rooted, reliable hearsay exception
under the test of Ohio v. Roberts because that test is no longer
applicable. The Court of Appeal noted that, based on the
evidence in the record, the trial court did not err in ruling that
the statements were sufficiently trustworthy to meet the
fourth requirement for admission under 1370. It found that
the trial court reasonably deemed the statements trustworthy
A-39
for this purpose based on the lack of pending litigation, the fact
that Omar’s injuries were consistent with her complaints, and
that although she “may have had bias or motive for fabrication
due to her increasingly volatile relationship with [petitioner],
her demeanor at the time of the reports suggested she was
more likely to be credible.” Resp.’s Opp., Exh. I at 13-14. B.
Admission of Michael Tong’s statements
Petitioner argues that the trial court impermissibly admitted
a prior statement by Michae! Tong--a former highschool
classmate of petitioner--made to the police in October 1998.
The statement acknowledged that he had met petitioner’s
girlfriend--most likely Omar--and provided some minimal
description about her. It also acknowledged that petitioner had
told
[*43]
Tong he suspected his girlfriend of cheating, and that during
an argument petitioner had thrown his girlfriend on the bed,
began to choke her and considered smothering her with a
pillow. RT 198. The statement was admitted because Tong
testified that although he remembered talking to sheriff
deputies on several occasions and recalled meeting petitioner’s
girlfriend, he did not recall speaking to the police on the
particular date when the statement was made. Tong
maintained that he probably made and signed a statement
about petitioner, and that the statement was truthful. The
trial court admitted the statement pursuant to CEC section
1237 as a past recollection recorded. 12 Petitioner argues that
admission under section 1237 was inappropriate because Tong
had been a drug user for nearly 10 years and that his
A-40
statement was not fresh.
12 CEC 1237 provides:
(a) Evidence of a statement previously made by a witness is not
made inadmissible by the hearsay rule if the statement would
have been admissible if made by him while testifying, the
staiement concerns a matter as to which the witness has
insufficient present recollection to enable him to testify fully
and accurately, and the statement
[*44]
is contained in a writing which:
(1) Was made at a time when the fact recorded in the writing
actually occurred or was fresh in the witness’ memory;
(2) Was made (i) by the witness himself or under his direction
or (ii) by some other person for the purpose of recording the
witness’ stat~ >ent at the time it was made;
(3) Is offered after the witness testifies that the statement he
made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate
record of the statement. (b) The writing may be read into
evidence, but the writing itself mey not be received in evidence
unless offered by an adverse party.
The State asserts that petitioner explicitly waived objection to
the admission of Tong’s statement so he is therefore
A-41
proceduraily barred from complaint. Alternatively, it argues
that the admission of Tong’s statement was not prejudicial
because petitioner was able to and did cross-examine Tong
about the statement. Moreover, the State argues any error that
might be assigned should be deemed harmless because Tong’s
statement was only one of many pieces of evidence
demonstrating petitioner had been physically abusive and
threatening towards Omar.
The Court
[*45]
of Appeal accepted the State’s waiver argument. It relied upon
the fact that although petitioner initially moved to strike
Tong’s testimony on redirect, wherein Tong admitted he told
the deputy sheriff the facts in his statement, petitioner
subsequently appears to have withdrawn the initial objection.
Resp.’s Opp., Exh. I at 15. After the parties had rested, the
Court of Appeal noted that in the context of discussion about
evidentiary motions, and specifically in relation to Tong’s
testimony, the prosecution stated, “I don’t know if counsel is
still objecting to the admissibility of that testimony,” and that
in reply, petitioner’s counsel said “No.” Id. The appellate court
also cited the trial court’s statement that “[t]here being no
objection, there’s no issue.” Id.
This court finds no error in the appellate court’s determination
that waiver occurred at trial. The conclusion was reasonable
based on the cited statements made by counsel and the trial
court judge, and the result does not impose any stricter
standard than is recognized by federal law. See Peretz v. United
A-42
States, 501 U.S. 923, 936-37, 111 S. Ct. 2661, 115 L. Ed. 2d 808
(1991) (“No procedural principal is more familiar to this Court
than that a constitutional
[*46]
right may be forfeited in criminal as well as civil cases by the
failure to make timely assertions of the right before a tribunal
having jurisdiction to determine it.”)
C. Exclusion of Omar’s prior conduct
Petitioner argues that the trial judge erred in not admitting
evidence regarding a particular instance in which Omar struck
and injured another individual with her car during a dispute
with another gir] in high school. He cites CEC section 1103,
which provides that evidence of a character trait may be
introduced through evidence of a specific instance of conduct.
13 The State argues that the evidence was appropriately
deemed irrelevant and unduly prejudicial by the trial court,
and excluded within the court’s discretion. 13 CEC 1103
provides: (a) In a criminal action, evidence of the character or
a trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted
is not made inadmissible by Section 1101 if the evidence is:
(1) Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.
(2) Offered by the prosecution
A-43
[*47]
to rebut evidence adduced by the defendant under paragraph
(1),
The trial court exciuded the evidence for lack of relevance
because it did not relate directly to Omar’s relationship with
petitioner, didn’t touch upon her credibility, and because,
having occurred three years prior, it was too remote in time to
show that Omar had any significant propensity for violence.
The court concluded that because the testimony would have
“negligible weight” it would be “ultimately meaningless.” RT
718.
The Court of Appeal upheld the trial court’s determination. It
held that CEC section 352 allows a trial court to preclude
admission of evidence pursuant to section 1103 if “the evidence
and the danger of prejudice, confusion and undue time
consumption” substantially outweigh the probative value of
the evidence. Resp.’s Opp., Exh. I at 15-16. Acknowledging the
California Supreme Court’s statement in People v. Wright, 39
Cal. 3d 576, 588, 217 Cal. Rptr. 212, 703 P2d 1106 (1985), that
“the danger of these evils” must “substantially outweigh the
probative value of the evidence,” the appellate court then
reviewed the trial court’s decision for abuse of discretion, citing
People v. Rodriguez, 20 Cal. 4th 1, 9-10, 82 Cal. Rptr. 2d 413,
971 P2d 618 (1999), and determined that
[*48]
because there was already ample evidence that Omar and
petitioner were abusive toward one another and argued
A-44
frequently and because the testimony was “weak and
contradicted in cross-examination,” the trial court had
proper'y ruled the evidence inadmissible.
The State argues that although the Sixth and Fourteenth
Amendments guarantee petitioner a meaningful opportunity to
present a complete defense, not every unfavorable evidentiary
ruling, even if erroneous, is a constitutional deprivation, and
that “the Constitution permits judges to exclude evidence that
is repetitive, only marginally relevant, or poses an undue risk
of harassment, prejudice, or confusion of the issues.” Holmes
v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164
L. Ed. 2d 503 (2006) (internal quotations omitted); Montana v.
Egelhoff, 518 U.S. 37, 42-43, 116 S. Ct. 2013, 135 L. Ed. 2d 361
(1996) (defendants do not have unfettered right to offer
evidence); Dowling v. United States, 493 U.S. 342, 352-54, 110
S. Ct. 668, 107 L. Ed. 2d 708 (1990) (prejudice of evidentiary
ruling determined by rules of evidence rather than concept of
due process); Jammal v. Van De Kamp, 926 F:2d 918, 919 (9th
Cir. 1991) (“We are not a state supreme court of errors; we do
not review questions of state evidence law. On federal habeas
[*49]
we may only consider whether the petitioner’s conviction
violated constitutional norms.”)
The appellate court’s determination appears to have been
reasonable in light of the state rule of evidence applied, which
does not appear to violate any federal constitutional standard.
Petitioner has failed to show that the court’s admission was for
any reason so unfair as to have violated his right to due
A-45
process. Therefore, this court declines to find any error in the
appellate court’s approval of the trial court’s discretionary
decision to exclude the evidence.
III. Prosecutorial Misconduct
Petitioner next asserts that he was unduly prejudiced by
several statements made by the prosecutor during the closing
arguments, which he argues denied him his right to a fair trial.
Specifically, petitioner claims the prosecutor: (1) accused
defense counsel of presenting a bad-faith defense; (2) appealed
to passion and prejudice--urging the judge to overlook the law;
and (3) imposed testimony by body language by commenting
on petitioner’s demeanor when sitting in court.
The State argues that petitioner’s claim is procedurally barred
because petitioner failed to object at the time of the alleged
misconduct.
[*50)
Moreover, the State asserts that if considered on the merits--
even if viewed cumulatively--any comments the prosecutor
made should be considered harmless because there was no
prejudicial effect upon the bench trial proceedings.
The Court of Appeal found for the State on the basis of
petitioner’s failure to object, citing People v. Cunningham, 25
Cal. 4th 926, 1000-01, 108 Cal. Rptr. 2d 291, 25 P3d 519
(2001) (a claim is preserved only when a defendant timely
object and requests a curative admission), and People v. Scott,
15 Cal. 4th 1188, 1217, 65 Cal. Rptr. 2d 240, 939 P2d 354
A-46
(1997) (same is true in a proceeding before the court rather
than a jury). The court also deemed the prosecutor’s
statements--although acknowledging that some were improper
14--harmless because during this bench trial the judge was less
likely to be significantly affected by the prosecutor’s
statements. Moreover, the court addressed the merits of each
of petitioner’s particular claims, and found that only one of the
three was actually misconduct. 14 The prosecutor commented
on petitioner’s courtroom demeanor--saying that petitioner
had a “smug little look on his face” and was pouting--in a
manner that petitioner argued below constituted unfair
comment on his choice not to testify.
[*51)
The appellate court acknowledged that these comments were
improper pursuant to state law, citing People v. Boyette, 29 Cal.
4th 381, 434, 127 Cal. Rptr. 2d 544, 58 P3d 391 (2002).
Petitioner asserts that the following comments by the
prosecutor in rebuttal argument improperly implied that
defense counsel fabricated a defense: “The defense knows
perfectly well that the evidence in this case is that this is a
crime of murder. The defense knows perfectly well that this is
not a manslaughter. There is no evidentiary basis to support
manslaughter. This is a murder.” RT 780. Petitioner cited two
California Supreme Court cases and one state appellate court
case for precedent to support the claim that the prosecutions
comments about bad-faith defense were misconduct: People v.
Bain, 5 Cal. 3d 839, 847, 97 Cal. Rptr. 684, 489 P2d 564
(1971); People v. Nolan, 126 Cal. App. 623, 641, 14 P2d 880
(1932); and People v. Perry, 7 Cal. 3d 756, 789, 103 Cal. Rptr.
A-47
161, 499 P2d 129 (1972). However, the Court of Appeal--citing
the more recent California Supreme Court case People v. Hill,
17 Cal. 4th 800, 819, 72 Cal. Rptr. 2d 656, 952 P2d 673 (1998)-
-found that on this point the prosecutor had merely made “fair
comment on the evidence.” In Ifill, the Court held that
“[clonduct by a prosecutor that does not render acriminal trial
fundamentally unfair is
|*52]
prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” !d. The Court further
explained that
a prosecutor is given wide latitude during argument. ‘The
argument may be vigorous as long as it amounts to fair
comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom. It is also clear
that counsel during summation may state matters not in
evidence, but which are common knowledge or are illustrations
drawn from common experience, history or literature. A
prosecutor may vigorously argue his case and is not limited to
“Chesterfieldian politeness”, and he may use appropriate
epithets ....
Id. This court finds the prosecutor's statements to be vigorous
advocacy and holds that the appellate court below was not
unreasonable in finding petitioner's statements proper in light
of Hill,
Petitioner’s claim that the prosecution appealed to the trial
A-48
judge’s passion and prejudice is also misguided. Petitioner
points to the prosecutor’s statement that petitioner’s defense
was merely an “intellectual exercise” and a “charade.”
However, petitioner cites cases
1753]
which condemn calls for a jury to “make a statement,” United
States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005),
“send a message” to socicty at large, United States v. Solivan,
I37 F2d 1146, 1153 (6th Cir, 1991), or “be the conscience of
the community” when such appeal is “specifically designed to
inflame the jury,” United States v. Koon, 34 F.3d 1416, 1443
(9th Cir. 1994). These cases are factually distinguishable from
petitioner’s and therefore do not lend support to petitioner's
argument. ‘he Court of Appeal reasonably determined the
statements did not. constitute misconduct but merely critiqued
defense counsel’s presentation of the case
As for comments with regard to petitioner’s passive courtroom
demeanor, petitioner cites to United States v. Schuler, 813 EF
2d 978, 979 (9th Cir. 1986), and other cases in which several
circuit courts have deemed it reversible error to allow comment
on a defendant’s off-the-stand behavior. Llowever, the Court of
Appeal did not deny this behavior was misconduct; it found
that such misconduct was not prejudicial because, unlike cases
such as Schuler where improper comments were made to a
jury, the comments made before the judge at petitioner's
[*54]
bench trial could not be presumed to have the same prejudicial!
A-49
effect.
This court finds that the Court of Appeal properly analyzed
petitioner’s misconduct claims. It followed California Supreme
Court precedent in determining that petitioner’s failure to
raise objection at the time the statements were made precludes
his subsequent challenge of the statements, and this result
does not conflict with federal law. Additionally, the appellate
court nonetheless analyzed each of petitioner’s claims, but
based on the reasons mentioned found only one claim to have
merit. This court is satisfied with the appellate court’s ultimate
conclusion that even that claim--were it not barred by
petitioner’s failure to object--could not be considered harmful
because under the Brecht standard, petitioner must show that
the trial judge was significantly influenced by the prosecutor's
comments; in light of the overall record, this court cannot say
that such actual prejudice occurred.
IV. Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the
right of “effective assistance of counsel.” Strickland uv.
Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984) (quotation omitted). Counsel is required
(*55] to provide “reasonably effective assistance” from an
objective standpoint. Jd. at 687. In Strickland, the Supreme
Court defined the test for determining whether effective
assistance of counsel has been denied:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
A-SO
”
serious that counsel was not functioning as the “counsel
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. (emphasis added).
A. Petitioner’s Claims
Petitioner’s ineffective assistance of counsel claim is based on
two allegations of failure on his attorney’s part. First, that his
counsel did not object to inappropriate comments made by the
prosecutor during closing arguments of petitioner’s trial; and
second, that his attorney failed to investigate the origin
[*56]
of the weapon petitioner used in the commission of his crime.
Petitioner contends that his counsel’s failure to object could
not have been an intentional strategic decision, and he argues
that the failure to investigate foreclosed the possibility that
counsel might have discovered evidence undermining the
government’s proof of premeditation and deliberation.
The Court of Appeal rejected petitioner’s claims of ineffective
assistance of counsel, finding that counsel’s failure to object
was not prejudicial because “any prosecutorial misconduct was
A-51
harmless.” Resp.’s Opp., Exh. I at 19. As to the failure to fully
investigate the origin of the murder weapon, the appellate
court determined that “[tjhe facts alleged in the petition do not
prove that defense counsel failed to investigate the origin of
the knife; only that he did not ask defendant’s mother about
the issue,” that “counsel was not ineffective in not pursuing
the origin of the knife with defendant’s mother,” and that even
if counsel had been ineffective in this regard, “evidence of the
origin of the knife would not have had an effect on the verdict
in view of the overwhelming evidence of premeditation and
deliberation.” Id.
This
court has already deemed any error resulting from the
prosecutor’s closing statements was reasonably deemed
harmless by the state appellate court. For the same reasons,
the court finds reasonable the appellate court’s determination
that the failure to object to the statements was harmless.
This court also finds reasonable the appellate court’s
determinations regarding the claim of failure to investigate.
The appellate court correctly applied the Strickland standard,
and in doing so determined that petitioner did not allege facts
that if proven true would demonstrate prejudice. Resp.’s Opp.,
Exh. I at 18-19. Petitioner contends that if it could be shown
that the knife he used to kill Omar had been in her car, it
would suggest he had not planned to kill Omar. Although this
court acknowledges the same is a reasonable inference,
petitioner merely suggests that a declaration from his mother
A-52
“did tend to show” he had not brought the knife because it
“was a serrated kitchen knife, petitioner was living at his
mother’s house at the time of the killing, and his mother
declared that no knives were missing from her kitchen.” Pet’s
Reply in Support of Motion for Evid. Hearing at 5. That the
common
[*58]
kitchen knife may not have come from his mother’s home does
not negate the possibility that petitioner obtained it from any
number of places other than Omar’s car. Moreover, even if
petitioner found the knife in Omar’s car, petitioner has not
shown that the trial court would have drawn petitioner’s
desired inference in light of all of the other evidence presented
at trial. Absent this showing, this court finds the Court of
Appeal’s holding that any failure to investigate did not rise to
the level of ineffective assistance of counsel, or if it did it was
nonetheless harmless, was reasonable.
B. Petitioner’s Motion for Evidentiary Hearing
On September 27, 2007 petitioner filed a motion for
evidentiary hearing pursuant to Rule 8 of the Rules Governing
Section 2254 cases (“Rule 8”) and Local Rule 2254-7, based on
his asserted need for further expansion of the record to support
his claim of ineffective assistance of counsel. Relying on Karp
v. Ornoski, 431 F.3d 1158 (9th Cir. 2005), petitioner argues he
is entitled to an evidentiary hearing because he has presented
a colorable claim of ineffective assistance of counsel and the
state court’s decision was based on an _ unreasonable
determination
A-53
of facts.
In an opposition motion submitted on October 1, 2007 the
State argued that a hearing should not be granted for three
reasons. First, petitioner is not entitled to such hearing
because he has not met the requirements of 28 U.S.C. section
2254(e)(2). Section 2254(e)(2) requires petitioner to have
developed the factual basis for his claim in state proceedings,
or in the alternative to show that a new rule of constitutional
law or new factual predicate is the basis of his claim. Second,
even if the factual allegations were established to be true, they
would not support a finding that the offending conduct was
prejudicial. Third, petitioner did not comply with local rule
2254-7(a), which requires both that a request for an
evidentiary hearing be made within 15 days from the
expiration of the time for filing a traverse and that the request
specify which factual issues in particular require a hearing and
what evidence will be offered.
The State correctly points out that petitioner has not complied
with the timing requirements of the local rule for filing his
request. However, petitioner counters that the court has an
independent duty under Rule 8 to determine whether an
evidentiary
{*60]
hearing is warranted--whether mandatory or merely desirable.
Petitioner also asserts his failure to request an evidentiary
hearing in the state court proceedings is excusable because he
A-S4
had no practical ability to make such a request since the state
appellate court never issued an order to show cause, which he
argues was a necessary precursor to raising the issue.
Claims which can be resolved on an existing record do not
warrant a federal evidentiary hearing. Baja v. Ducharme, 187
F'38d 1075, 1078 (9th Cir. 1999). Although mindful of its
obligations, this court will not grant petitioner an evidentiary
hearing because the court finds the factual determinations
made by the appellate court below in resolving the ineffective
assistance of counsel claims to be reasonable for the reasons
previously stated. See Karp, 431 F'3d at 1166-67 (“Because a
federal court may not independently review the merits of a
state court decision without first applying the AEDPA
standards, a federal court may not grant an evidentiary
hearing without first determining whether the state court’s
decision was an unreasonable determination of the facts.”).
Petitioner has failed to sufficiently demonstrate what, if
[*61]
any, new facts could be established during such a hearing that
would undermine the reasonable determination of the Court of
Appeal below that the offending conduct, even if true, was not
prejudicial.
V. Cumulative Error
This court recognizes that in some instances it is appropriate
to consider the cumulative effect of several errors that
otherwise viewed separately would not result in a sufficient
degree of prejudice to warrant reversal. See Alcala uv.
A-55
Woodford, 334 M3d 862, 893-95 (9th Cir. 2003). Petitioner,
however, is unable to establish any federal constitutional error
whatsoever, let alone an accumulation of errors. Therefore, no
basis for finding cumulative error exists. See Fuller v. Roe, 182
F:3d 699, 704 (9th Cir. 1999) (where no single constitutional
error exists “nothing can accumulate to the level of a
constitutional violation.”); accord Mancuso v. Olivarez, 292
F38d 939, 957 (9th Cir. 2002) (“Because there is no single
constitutional error in this case, there is nothing to accumulate
to a level of a constitutional violation.”).
CONCLUSION
Because petitioner has failed to demonstrate any error rising
to the level of actual prejudice, or any combination of errors
that taken
(*62]
together rise to such level, the petition for writ of habeas
corpus is DENIED.
IT IS SO ORDERED.
Dated: February 13, 2008
/s/ Marilyn Hall Patel
MARILYN HALL PATEL
United States District Court Judge
Northern District of California
A-56
b. California Court of Appeal Opinion
THE PEOPLE, Plaintiff and Respondent,
HAROLD MORALES, Defendant and Appellant.
In re HAROLD MORALES, on Habeas Corpus.
A102198, A108550
COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT, DIVISION FOUR
2005 Cal. App. Unpub. LEXIS 6377
July 20, 2005, Filed
NOTICE: [*1]
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT
COURTS AND PARTIES FROM CITING OR RELYING ON
OPINIONS NOT CERTIFIED FOR PUBLICATION OR
ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE
977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR
PUBLICATION OR ORDERED PUBLISHED FOR THE
PURPOSES OF RULE 977.
PRIOR HISTORY: Alameda County Super. Ct. No. CH27122.
A-57
DISPOSITION: The judgment is affirmed. The petition for
habeas corpus is denied.
JUDGES: RIVERA, J.; REARDON, Acting PJ., SEPULVEDA,
J. concurred.
OPINION BY: RIVERA
OPINION
Harold Morales appeals from a judgment of conviction upon a
court verdict of first degree murder (Pen. Code, § 187). The
court also found true the allegation that defendant was armed
with a deadly weapon and that he inflicted great bodily injury
( §§ 12022, subd. (b), 1203.075, 12022.7, subd. (d)). Defendant
raises numerous issues on appeal including that the trial court
relied on several erroneous definitions in reaching its verdict,
that it erred in its evidentiary decisions, and that the prosecutor
committed misconduct. In a petition for habeas corpus, which
we consider with this appeal, defendant argues that his trial
counsel was ineffective.
[*2]
We affirm the judgment and deny the petition.
I. FACTUAL BACKGROUND
On the evening of October 8, 1998, Nazaneen Omar had just
completed her first quarter at Heald College and wanted to
celebrate with defendant, her boyfriend. Omar left the house
between 4:30 and 6:00 p.m.
A-58
Frank Bryan lived on Jamison Way in Castro Valley. On the
evening of October 8, at about 8:00 p.m., Bryan and his wife
were walking their dog and going to Safeway. As they walked,
their dog became very anxious and began growling and barking.
Bryan then heard screaming and a horn honking. He heard a
female voice screaming “Oh, God, help.” Bryan’s dog was
pulling him in the direction of a red car that was parked nearby.
Bryan could also hear a male voice that was yelling and
argumentative. He looked over toward the red car and saw a
couple in the car arguing. He also saw a man get out of the car
and go over to the passenger side and force the passenger door
to close. After he forced the door to close, he got back in the car.
Bryan and his wife went to Safeway to call the police.
Janeen Leech was in the vicinity of Redwood Road and Wilson
Avenue in Castro Valley at about 8:00 p.m. on the evening of
October
(*3]
8. She heard a car’s horn honking on Wilson Avenue and saw
that the sound was coming from a red hatchback car. She
noticed that the passenger door of the car was open and
swinging back and forth. The car was going fast but stopped
suddenly when Leech heard a thud. Leech walked toward the
car which was now on Redwood Road and saw a man scoop up
what she thought was a dummy and put it back in the car. The
dummy appeared to be a human form with long hair, wearing
skintight pants, a short top and jacket, and black bulky shoes.
Leech did not see the dummy move so she thought it was a
teenage prank. But when the car took off, she noticed a splatter
of red on the passenger door window and decided to call 911.
A-5S9
When sheriff deputies arrived, Leech went with the deputies to
the area where the car had stopped; a puddle of blood was there.
Gary Eoff was also driving on Redwood Road that evening. He
saw a red car stopped in the middle of the street with the
driver’s door open. He also saw a man bending down over
something outside the car. He stopped his car about 20 feet
away and asked the man, “what’s up.” Eoff then saw the man
pick up a girl from the ground and throw her inside the car. The
[*4]
man got in the car and drove away. Eoff pursued him while his
wife tried to write down the license plate number. The man was
driving fast and running stop signs so Eoff stopped following
him. He went back to the area where he had observed the
incident and saw sheriff's cars in the parking lot of a
convenience market. He reported the incident to the sheriff
deputies.
At approximately 8:00 p.m., Samuel Dorrough and his daughter
walked from the driveway of their home at 3612 Jamison Way
in Castro Valley to the recycling bins located on the sidewalk.
As they approached the bins, Dorrough heard a woman
screaming. The screams were coming from a red car across the
street. Dorrough heard the woman scream three times; each
time her scream was cut short. He also heard the red car’s horn
blaring. Dorrough returned to his home to get his phone. He
walked back outside and called 911. He heard the sound of a car
trunk closing but not catching. He then saw the red car drive
away and turn left on Jamison Way. He noticed that the only
person in the car was a male. Sheriff deputies responded to the
A-60
scene a few minutes later. Dorrough went to Safeway after
talking to the deputies. When he returned,
(*5]
the deputies were still at the scene. Dorrough then saw the
same red car coming down the street.
Deputy Sheriff Buschhucter responded to the _ scene.
Approximately 45 minutes later, he was directed to a car
turning onto Aires Court. Buschhueter and other deputies
followed the car. The car was parked on Aires Court and was
unoccupied. There was a large amount of blood throughout the
interior of the car and a knife was on the dashboard. While the
deputies were investigating the car, a woman called out for help
from the balcony of the townhouse nearby. They responded to
the townhouse where the woman told them that her son was
trying to hurt himself. Buschhueter saw defendant and another
man struggling over a large knife. When the deputies
approached the men, defendant had the knife. He started to use
the knife on his neck and he was covered in blood. He ran into
the bedroom and prevented the deputies from entering.
Defendant said that he wanted to die, his life was over, she had
left him, he had no reason to live, and he wanted to talk to his
mother. When Buschhueter kicked the lower hinge to the
bedroom door, defendant ran to the balcony and jumped to the
ground.
Defendant landed flat
[*6]
A-61
on the ground, but immediately got up and started to run away.
Deputy Burnham and other officers were able to detain him.
Burnham observed that defendant had a deep cut in his throat.
After defendant was on a gurney, Sergeant Jay learned that
defendant had a girlfriend who might be connected with the
earlier incident in the parking lot. Sergeant Jay also learned
that a purse found in the red car belonged to defendant’s
girlfriend, Omar. She asked defendant about Omar’s
whereabouts. Defendant responded that he wanted to talk with
his mother.
Burnham accompanied defendant in the ambulance to the
hospital. Burnham made further inquiries of defendant
concerning the whereabouts of his girlfriend. Defendant told
him that they had just broken up and that she was despondent.
over the break up and had taken an overdose of pills. Defendant
told Burnham that he left her on Center Street in Castro Valley.
Paul Lightfoot, defendant’s stepfather, testified that on the
evening of October 8 he had fallen asleep early. His wife woke
him up and told him that defendant was trying to kill himself.
Lightfoot got out of bed and saw Hurold with a knife in the
hallway. Lightfoot tried to restrain him and
L*7)
they struggled. Defendant told him, “please don’t stop me, I’ve
done something terrible and the police are going to lock me up.”
Shortly thereafter, the police arrived. The following day when
Lightfoot was cleaning up, he found two sets of keys in the area
in which he had struggled with defendant. He turned the keys
over to the police.
A-62
At approximately 10:00 p.m. on October 8, Burnham returned
to the scene. Lieutenant Hoig, who was at the scene, found
Omar in the hatchback area of the red car. Burnham, who is
also an emergency medical technician, assessed her condition
and determined that she was dead. She was wearing a black
shirt and was nude below the waist. Deputies recovered a bent
knife from the dashboard of the car.
Sharon Van Meter, a pathologist, testified that Omar suffered
23 stab and incise wounds and numerous blunt force injuries to
her body, particularly to her head and face. One of the stab
wounds to Omar’s left chest incised her lung; this injury alone
would have been fatal without emergency medical treatment. In
addition, Omar suffered a skull fracture, which was also, in and
of itself, fatal without medical intervention. Dr. Van Meter
determined the cause of death
[*8]
to be shock and hemorrhage due to multiple stab and incise
wounds associated with blunt trauma to the head
The prosecution also presented evidence concerning several
prior acts involving violence or threats by defendant against
Omar:
Officer Snider testified that on March 14, 1998, he responded to
a call concerning a battery and took a report from Omar. Omar
was crying and upset and her left eye had a bruise and was red
and swollen when Snider arrived at a residence on Maubert
Avenue in San Leandro. Omar reported that she argued with
defendant and that he hit her on the leg, chest and left eye with
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his fist and then spit on her several times. Omar told Snider
that during her two and a half year relationship with defendant,
he had assaulted her about 100 times. Omar did not want to file
a criminal complaint. She had not previously contacted the
police about prior assaults because she did not want to get
defendant in trouble.
Detective Beverly Young testified that on April 14, 1998, she
was on patrol and responded to an incident occurring at the
Southland Mall in Hayward. There, she met Omar, who was
extremely upset and crying hysterically. The right rear window
of her BMW had been
[*9]
broken. Omar told Young that she had broken up with
defendant after dating him for some time. Defendant was
calling her and threatening her and had stopped by the mall to
try to talk to her. He subsequently called her and told her to
meet him by her car when she got off work. When she refused,
he said he was going to break her car window.
Omar told Young that defendant had threatened to kill her on
prior occasions and that she was afraid. Referring to the
incident at the mall, Omar told Young that defendant said “you
fucking bitch. I’m going to end your life.” Omar showed Young
bruises that she had on her inner thighs and arms that were the
result of an assault by defendant four days prior to the incident
in Hayward. Young testified that the bruising was consistent
with Omar’s claim. Omar said that she did not want to involve
the police because defendant threatened to kill her if she did so.
A-64
Officer Huy Tran testified that on July 10, 1998, he responded
to a report of a domestic disturbance at the Great Mall in
Milpitas. Omar told Tran that she dated defendant for about
three years but broke up with him approximately eight months
ago. She had gotten back together with him four days
[*10]
before but had broken up with him again the previous evening.
Defendant was angry about the break up and called her at work
threatening to kill her. At approximately noon that day,
defendant approached her at her work site and whispered in her
ear, “I’m going to kill you. This is not a joke.” She became upset
and yelled at him to stop harassing her. Defendant yelled
obscenities at her and threw a shoe at her grazing the right side
of her head. A security mall officer chased defendant away.
Omar requested a restraining order. Tran was able to obtain an
emergency protective restraining order for her. Omar told Tran
that she wanted to press charges. On September 4, 1998, Omar
recanted her statement, claiming that she was upset the day of
the incident and that defendant had not threatened her or hit
her with a shoe.
The fourth incident occurred on August 2, 1998. Police Chief
Norman LaPera of the East Bay Regional Park Police
Department was on patrol traveling northbound on Redwood
Road at about 8:00 p.m. He pulled up alongside a car that was
in the lane adjacent to his and saw that Omar, the passenger in
a maroon Honda was crying. He heard her say “no” and “leave
me alone.” He made
A-65
(*11]
eye contact with her and she mouthed the words, “help me.”
LaPera then saw defendant, who was driving the car, reach over
with his right hand and grab Omar by the back of her hair and
pull her close to him. Defendant began to choke her. Defendant
tried to keep her from looking in LaPera’s direction.
LaPera alerted dispatch that he was going to make a traffic stop
in a domestic violence incident. When he was trying to get in
position, Omar exited from the car. LaPera got out of his car
and directed Omar to get in his car. Omar was crying. and
telling LaPera that defendant was trying to hurt her. Defendant
got out of his car and followed Omar, swearing at her and
telling her to get back in the car.
When the hght at the intersection changed to green, LaPera
directed defendant to move his car through the intersection and
to pull over. As they followed defendant through the
intersection, Omar told LaPera that defendant planned to drive
her up to Redwood Road and kill her. After LaPera stopped his
car behind the Honda, defendant got out of the car and started
to yell at Omar to get back in his car. LaPera put defendant into
a control hold to physically restrain him. Defendant resisted
[*12]
but LaPera was able to handcuff defendant.
Deputy Sheriff Andrade arrived and took defendant into
custody. Andrade spoke with Omar and observed a three-inch
abrasion on the back of her neck, an abrasion on her chest area,
A-66
and superficial scratches on her neck and wrist. Omar was
crying, very emotional, and distraught. Andrade was eventually
able to obtain a written statement from Omar in which she
related that defendant said he was going to kill both of them
and when he saw the officer, he threatened to kill her if she got
out of the car.
In defense, defendant presented several witnesses who testified
about defendant and Omar’s tumultuous relationship and that
they were abusive to each other. They used aggressive language
and profanity, and were jealous of each other. Omar was often
angry with defendant because he had other girlfriends. A few
weeks before her death, Omar approached defendant when he
was talking to a friend and accused him of having a sexual
relationship with her. Omar also knew how to “push
[defendant’s] buttons” by casting aspersions on his masculinity;
he would respond by pushing her back and telling her to quit.
In short, according to defendant’s friend, the
[*13]
relationship was “crazy for both of them.”
The parties stipulated that DNA tests of the blood on the knife
found in the car showed that Omar could not be excluded as a
major contributor and that defendant could not be excluded as
a minor contributor of the blood.
II. DISCUSSION
A. Instructional Errors
A-67
Defendant contends that the trial court relied on erroneous
definitions of premeditation and deliberation in concluding that
he w
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