Opinion
CV 15-9156 JFW (PVC)
02-02-2024
MICHAEL FRANK GOODWIN, Petitioner, v. JAMES HILL, Warden,[1] Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
PEDRO V. CASTILLO, UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 0507 of the United States District Court for the Central District of California.
I.
INTRODUCTION
On November 10, 2015, Michael Frank Goodwin (“Petitioner”), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254, raising 17 grounds for relief. (Petition, Dkt. No. 1). Concurrently with the Petition, Petitioner filed a “Motion to Hold and Stay Proceedings in Abeyance,” in which Petitioner requested a stay so that he could pursue two additional claims in state court. (Dkt. Nos. 2, 11).
Under the “mailbox rule,” a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing to the court clerk, not the date on which the pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270 (1988); Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Accordingly, the Court adopts the date Petitioner signed the Petition, November 10, 2015, as the constructive filing date. (See Petition at 28). For ease of reference, when citing to Petitioner's filings, the Court relies on the CM/ECF-generated pagination on the Court's docket.
On July 19, 2016, the Court granted Petitioner a stay pursuant to Kelly v. Small, 316 F.3d 1064 (9th Cir. 2003). (Dkt. No. 12). More than six years later, in September 2022, the undersigned Magistrate Judge issued a Report and Recommendation, recommending that the stay be vacated because Petitioner failed to act diligently in exhausting his two unexhausted claims and failed to obey the Court's orders. (Dkt. No. 89). On October 14, 2022, the District Court vacated the stay. (Dkt. No. 91).
Thereafter, Respondent was ordered to respond to the Petition. (Dkt. No. 92). On February 9, 2023, Respondent filed an Answer with an accompanying memorandum of points and authorities (“Ans. Mem.”). (Dkt. No. 102). Respondent also lodged relevant portions of the record from Petitioner's state court proceedings, including a 24-volume Reporter's Transcript (“RT”), an eight-volume Augmented Reporter's Transcript (“Aug. RT”), an eight-volume Clerk's Transcript (“CT”), and a 17-volume Augmented Clerk's Transcript (“Aug. CT”). (Dkt. No. 103, Lodgments 1-4). On May 30, 2023, Petitioner filed a Reply. (Dkt. No. 113). For the reasons discussed below, it is recommended that the Petition be DENIED and this action be DISMISSED with prejudice.
When referencing the state court record, the Court will cite to the original page numbers reflected in the documents rather than the CM/ECF-generated page numbers.
After Respondent filed an Answer to the Petition, Petitioner filed several documents, including a request for a continuance to respond to the Answer and a request to augment the record. (Dkt. Nos. 107-09). The Court denied Petitioner's requests relating to any claim of actual innocence because it was not part of the 17-claim habeas petition currently at issue before the court but granted Petitioner a continuance to respond to the arguments raised by Respondent in the Answer. (Dkt. No. 111). Thereafter, Petitioner filed a Reply that was entitled “Motion for the Court to Withdraw my Habeas” but was captioned for the Los Angeles County Superior Court. (“Motion,” Dkt. No. 113). Additionally, the substance of the arguments is difficult to understand as Petitioner again addresses a number of grievances not before the court, including his claim that he is innocent and is attempting to gather evidence to prove this claim. (See also Dkt. Nos. 114 (“Notice that my promised augmentation is delayed”) and 115 (“Notice that petitioner is too ill to yet file his promised augmentation”)). It is unclear to the Court whether Petitioner is actually seeking to dismiss the current federal Petition (or any of the 17 claims therein), which has been pending for more than seven years and is now ready for decision, or, importantly, that he understands the ramifications for such an action on his current claims. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding AEDPA's statute of limitations is not tolled during the pendency of a federal petition). Accordingly, at this time, Petitioner's Motion (Dkt. No. 113) is DENIED, and the Court has considered the filing as a Reply to the Answer in issuing the instant Report and Recommendation.
II.
PRIOR PROCEEDINGS
In January 2007, a Los Angeles County Superior Court jury found Petitioner guilty of two counts of first-degree murder with special circumstances. (7 CT at 2022-23). In March 2007, the trial court sentenced him to life in prison without the possibility of parole. (8 CT at 2182-83).
Petitioner appealed, generally raising all of the claims raised herein. (Dkt. No. 103, Lodgment 5). On January 26, 2015, the California Court of Appeal affirmed the judgment in a reasoned, written decision on the merits. (Dkt. No. 103, Lodgment 8). A petition for rehearing was denied. (Dkt. No. 103, Lodgments 9-10). Thereafter, Petitioner filed a petition for review. (Dkt. No. 103, Lodgment 11). On May 13, 2015, the California Supreme Court denied the petition for review summarily. (Dkt. No. 103, Lodgment 12).
On August 23, 2016, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court. (See Dkt. No. 103, Lodgment 19 at 107). After lengthy state court proceedings, the superior court denied the petition on November 3, 2020. (See Dkt. No. 103, Lodgment 19 at 207-68). Petitioner also filed a petition for resentencing in the Los Angeles County Superior Court, which was denied and affirmed on appeal in March 2021. (See Dkt. No. 103, Lodgment 16).
III.
FACTUAL BACKGROUND
The following facts, taken from the California Court of Appeal's written decision on direct review, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
1. Background
Mickey Thompson was a well-known race car driver who set a land speed record in his youth. By the 1980's, Mr. Thompson was running a successful sports promotion company that sponsored indoor stadium races, principally with off-road, four-wheeled vehicles. [Petitioner] ran a similar business, Stadium Motor Sports Corporation, promoting stadium motorcycle racing. In 1984, the two men entered into a business venture together to promote stadium motor sports events. The deal involved a stock transfer agreement with the parties combining their businesses and sharing profits and losses, 70 percent to [Petitioner] and 30 percent to Mr. Thompson.
Within months, the business relationship deteriorated. [Petitioner] refused to advance monies for an event according to the 70/30 formula, and then claimed Mr. Thompson had defaulted, entitling him ([Petitioner]) to take over Mr. Thompson's company.[FN2] Mr. Thompson sued [Petitioner] and his company in October 1984. In February 1986, the trial court entered judgment for Mr. Thompson totaling over $790,000 in damages, prejudgment interest and attorney fees.
[FN2] Charles Stewart Linkletter, who worked for [Petitioner] ¶ 1984 while the business venture with Mr. Thompson was being negotiated, overheard a conversation between [Petitioner] and another executive of [Petitioner's] company while driving them to [Petitioner's] Laguna office. Mr. Linkletter described the conversation as a 45-minute diatribe by [Petitioner] to the effect that “he was going to screw Mickey out of his business” and “rip him off.” Then [Petitioner] told Mr. Linkletter, “Stew, if you ever say a word about this conversation to anybody, I will fucking kill you.” A few days or weeks later, Mr. Linkletter drove from Laguna to the Thompson residence to get Mr. Thompson's signature on a contract.
In the years after the litigation began, Mr. Thompson continued to successfully promote motor sports events in various arenas, while [Petitioner's] business suffered. [Petitioner] had originated the idea of staging motorcycle events at the stadium in Anaheim, and had done so successfully for years. But after 1987, Gregory Smith, the Anaheim Stadium executive director, stopped doing business with [Petitioner] and hired Mr. Thompson and another company to produce all of Anaheim's motor sports events, including the event [Petitioner] previously produced. (One of several reasons for the change was that [Petitioner's] company was in bankruptcy.) [Petitioner] was very upset when he received the news that his proposal for those events had been rejected in favor of Mr. Thompson. Anaheim Stadium executives announced the change at a press conference in August 1987, and the events held in January 1988 were very successful.
[Petitioner] had held an exclusive contract for motor sports events at the Rose Bowl in 1985 and 1986, but the Pasadena City Council selected Mr. Thompson's company to hold an event in May 1987, which also made [Petitioner] very angry. Mr. Thompson was also selected to run an event in the summer of 1988, but the murders prevented that.
Meanwhile, Mr. Thompson's vigorous attempts to collect on his judgment against [Petitioner] were largely unsuccessful. Mr. Thompson's lawyers prevented [Petitioner] from using private sureties to satisfy the appellate bond requirement, but were not able to find any assets, which appeared to have been transferred. In September 1986, [Petitioner] changed the name of his company and filed for bankruptcy protection. In November 1986, [Petitioner] filed for personal bankruptcy.
Mr. Thompson's lawyer, Philip Bartinetti, described the litigation as one of “the most vigorously contested I've ever been involved in.” Another of Mr. Thompson's lawyers, who was responsible for attempting to collect the judgment, described the litigation as “absolutely beyond a doubt the most bitter and contentiously fought lawsuit I've ever been involved in.”
The judgment for Mr. Thompson was affirmed on appeal and the Supreme Court denied review on January 29, 1988, a few months before the murders. In another lawsuit [Petitioner] filed in Orange County against Mr. Thompson and his company, the court ordered summary judgment in favor Mr. Thompson on March 2, 1988, about two weeks before the murders.
After the bankruptcy filings in September and November 1986, Mr. Thompson had wanted to settle the matter, and there were extensive settlement negotiations. Apparent deals were reached a dozen times, but then [Petitioner] “would change something at the last minute and it would fall apart.” Mr. Thompson's lawyer concluded [Petitioner] was not negotiating in good faith.
After the bankruptcy filing of [Petitioner's] company, now named Entertainment Specialties, Inc. (ESI), the bankruptcy examiner recommended appointment of a trustee for ESI. Jeffrey Coyne was appointed trustee in late June 1987. He discovered “there was no operating company to run,” as “the operating part of the company had been sold by E.S.I.” to a company named Supercross, Inc. (SXI), a company owned and operated by [Petitioner's] wife and a man named Charles Clayton. When he examined the books and the transfer to SXI, Mr. Coyne found “lots of gaping holes” and determined that much of what he saw in ESI and the transfer to SXI “was all done for the purpose of moving the business without paying the creditors,” the most vocal and the most interested of whom was Mr. Thompson. Mr. Coyne discovered that SXI was in default on payments to ESI for assets transferred to SXI, and believed the activity of [Petitioner], his wife, ESI and SXI to be fraud affecting Mr. Thompson's rights as a creditor, as ESI's primary assets had been shifted away.
Mr. Coyne took steps to recover the assets, and SXI eventually paid $385,000 of the outstanding $500,000 owed. Mr. Coyne pursued recovery of the remaining amount and refused to acquiesce in [Petitioner's] efforts to have various bankruptcy estate assets paid to his wife and parents. At a meeting a few weeks before the murders, [Petitioner], trembling and in a “black rage,” approached within inches of Mr. Coyne's face and said, “You better lighten up or things will get bad,” and “If you fuck up my life, I'll fuck up yours.” Describing his experience with the ESI bankruptcy, Mr. Coyne said it was “the highest level I had ever seen of acrimony, anger, intensity, resentment and rage.”
2. [Petitioner's] Threats Against Mr. Thompson
We summarize now the evidence of the multiple occasions on which [Petitioner] expressed his hatred of Mr. Thompson and his intent to kill him during the years preceding the murders.
a. William and Nina Wilson
In January or February 1988, William and Nina Wilson hosted dinner at their home for [Petitioner] and his wife. (Mr. Wilson was general manager of Jack Murphy Stadium in San Diego, and had also managed the Rose Bowl; he had worked with both Mr. Thompson and [Petitioner] on various motor sports promotions.) When Mr. Wilson asked [Petitioner] how he was doing, [Petitioner] replied, “Terrible.” [Petitioner] was angry and said: “Fucking Thompson is killing me. He's taking everything I've got. He's destroying me. I'm going to take him out.” When Mr. Wilson responded, “Nobody wins that one. Mickey's dead and you're in prison,” [Petitioner] replied, “Oh, no,” and “I'm too smart for that. They'll never catch me.” Nina Wilson heard the conversation and corroborated her husband's account, saying that [Petitioner] said, “I just hate him,” and repeated, “I'm going to take him out.” Both the Wilsons believed [Petitioner] was serious. Mr. Wilson was “very upset” and Ms. Wilson was “shock[ed].” When he saw how shocked the Wilsons were, [Petitioner] said, “Well, you know I'm just kidding. I could never do anything like that.”
b. Gregory Smith
Mr. Smith, the Anaheim Stadium executive, was subpoenaed to testify at a bankruptcy court hearing in 1987. This was at a time when decisions were being made or had recently been made about the award of the Anaheim motorcycle event to Mr. Thompson. Mr. Smith was sitting at the back of the courtroom before the hearing when [Petitioner] sat down behind him and said, “You don't know what you're doing to me. You'll be sorry for this. I'll be back.” Mr. Smith considered [Petitioner's] statement threatening. He had several conversations with [Petitioner] before, and in every one, [Petitioner] was “unhappy” and “mad that we would consider not having him come back and put on the supercross event.” [Petitioner] was “confrontational and very, very upset,” but the courtroom conversation “was the first where I considered it threatening when I was being told that I would regret this decision.”
c. Scott Hernandez
Scott Hernandez worked for [Petitioner's] company from the spring of 1985 to late 1987, when [Petitioner] closed the office. The office walls were thin, and the offices of [Petitioner] and Mr. Hernandez shared a wall, so Mr. Hernandez could overhear discussions in [Petitioner's] adjoining office. In late 1987, Mickey Thompson's name came up frequently and was a source of tension in the office. “When Mickey Thompson was brought up by [Petitioner], it was usually in a rageful manner. Not geared towards the office personnel, but him expressing his anger and frustration .”
On one occasion, Mr. Hernandez heard [Petitioner] on the telephone with his attorneys in the Thompson case, and then heard a ruckus that “sounded like books flying, hitting the wall, and [Petitioner] going into a rage.” Mr. Hernandez heard [Petitioner] say, “I'll kill that mother fucker. I'll kill that mother fucker.” Mr. Hernandez described [Petitioner's] voice level as “in anger, just livid anger.” (In 2002, Mr. Hernandez told a detective that this incident occurred in February or March 1987, rather than late 1987.)
d. Cheryl Sarantis
Cheryl Sarantis was an employee of [Petitioner's] company in 1986 and 1987, until the office closed, working on advertising and marketing. She heard [Petitioner] “ranting and raving” about Mr. Thompson on a regular basis, every day that [Petitioner] was in the office. On one occasion, she heard lamps crashing against the wall of the conference room, followed by [Petitioner's] ranting and raving about Mr. Thompson. She also recalled [Petitioner] saying that he “was going to destroy Mickey Thompson.” (When police interviewed Ms. Sarantis, she said the word “destroy” was her characterization of what [Petitioner] said, and not a direct quote from [Petitioner].)
e. Kathy Weese
Kathy Weese, who was then known as Kathy Johnson, worked for [Petitioner] for six to eight months as a secretary in 1986. She often answered the telephone when Mickey Thompson called. [Petitioner] and Mr. Thompson “were always talking about the money situation.” On one occasion, Mr. Thompson phoned [Petitioner], and Ms. Weese overheard [Petitioner] say, twice, “I'm going to take you out.” The two continued to argue, and Ms. Weese heard [Petitioner] say, “It would cost me $500 and a motor vehicle to have you taken out and I will take you out.” (Ms. Weese did not tell police about that statement when she was interviewed in 1997, but the detective who interviewed her heard Ms. Weese testify to the same effect at a preliminary hearing in Orange County in 2002.)[FN3]
[FN3] Ms. Weese had a criminal history. She used aliases and had several theft-related convictions. She had walked away from a Colorado halfway house (because she was beaten and her daughter was attacked) to come to Los Angeles. [Petitioner] had Ms. Weese arrested, claiming she embezzled money. She was acquitted of that charge, but spent eight months in custody awaiting trial and later was sent back to Colorado to complete her sentence there. She told police, “If I can help you get this guy, I'll do anything,” and referred to [Petitioner] as a “son of a bitch.”
f. Barron Wehinger
Barron Wehinger, 16 years old in the fall of 1984, lived with his stepfather, Tom Villelli, in Durango, Colorado. [Petitioner] visited the Durango residence, and discussed with Mr. Villelli his “court battle” with Mr. Thompson. Mr. Wehinger heard [Petitioner] tell his stepfather, “I'll kill him.” According to Mr. Wehinger, [Petitioner] said he was going to kill Mr. Thompson “[i]f he [Petitioner] lost his power to run the superbowl of motorcross, his million-dollar-a-year income.” Mr. Wehinger heard [Petitioner] say, “I can get it done for 50 grand.” Mr. Villelli replied, “I could get it done for 20 grand,” and [Petitioner] said, “I don't want to get you involved, Tom.” Mr. Wehinger explained all this was vivid in his memory because, around the same time, [Petitioner] had visited and offered to help Mr. Wehinger and his brother with their motocross careers, and “[w]hen somebody offers you a chance to ride superbowl of motorcross, you listen to every word they say, and when I heard that, I'll never forget it.”
Mr. Wehinger did not mention anything about the $50,000 when he testified at the preliminary hearing in this case, and he never mentioned anything about a hit man to the police or to the prosecutor. In his previous testimony, Mr. Wehinger said that the only thing he heard [Petitioner] say was “he ([Petitioner]) would have him [(Mr. Thompson)] taken care of if he lost.” In 2003, Mr. Wehinger told police he heard [Petitioner] talking in late 1987, or perhaps 60 or 90 days before the murders, rather than in 1984.
g. Penn Weldon
In November or December 1987, Penn Weldon, a private investigator, met [Petitioner] to discuss possible investigative work for [Petitioner]. [Petitioner] was “very upset and angry” during the hour-long meeting, and said he had been “fucked royally” by Mickey Thompson; that he was so angry he had recently thrown a chair through the window of his house; and “that Mickey had ruined his life and he wanted to get even with him.” [Petitioner] wanted Mr. Weldon to investigate Mr. Thompson's attorney, Philip Bartinetti, and place listening devices in Mr. Bartinetti's home and cars. Mr. Weldon refused to do that, but agreed to and did perform other investigative actions relating to Mr. Bartinetti.
h. Karen Dragutin
In the months preceding the murders, Karen Dragutin was at a Laguna Beach restaurant with a man who knew [Petitioner] very well, and they were joined by [Petitioner] and his wife. [Petitioner's] jovial attitude changed when the conversation turned to lawyers and lawsuits and Mickey Thompson. [Petitioner] became angry, said he “was getting screwed by the lawyers”; “[t]he only way to get out of the mess was to take care of Mickey Thompson”; and “the only way he was going to get out of it is if Mickey Thompson died.” Ms. Dragutin also testified [Petitioner] “was talking about a boat and going to Bermuda. And it was still in the context of that conversation. So my conclusion was he was going away.” [Petitioner's] statement about the boat and going to Bermuda “was in the same part of the conversation as the taking care of this mess and Mickey had to die ....”
i. Gregory Keay
Gregory Keay was [Petitioner's] cousin. At a family gathering two or three months before the murders, [Petitioner] said that “Mickey was out to get all of his money and before that would happen, he would have him wasted.” (When police interviewed Mr. Keay in 1997, Mr. Keay did not use the term “wasted”; he told the detective that [Petitioner] said, “That partner of mine is rubbing me the wrong way, he won't be rubbing me much longer.”)
j. Dale Newman
In the fall of 1987, Dale Newman and a friend flew to Mexico to go diving, and met [Petitioner], who sent a 60-foot boat to the beach to pick them up. That evening, they were on the bridge deck with [Petitioner] and his wife. Mr. Newman overheard [Petitioner] and his wife commiserating over a legal matter. Mr. Newman did not recall his exact words, but [Petitioner] told his wife, in a threatening tone, in effect “that nothing bad was going to happen because he was going to take care of the party involved.”
k. John Williams
John Williams was a deputy marshal in Orange County from 1986 through 1988. He was assigned to levy on [Petitioner's] Mercedes automobile in connection with litigation involving Mickey Thompson. He went to [Petitioner's] residence and, in the course of the removal of the Mercedes, [Petitioner] said, “Mickey Thompson is fucking dead. He doesn't know who he's fucking with.” Both [Petitioner] and his wife used an extraordinary amount of “vicious language” about Mr. Thompson, and both repeated that Mr. Thompson “was going to have something happen to him.” Mr. Williams reported the incident to his supervisor, and telephoned Mr. Thompson's attorney to report the successful levy and the threatening comments.
Mr. Williams testified that the incident occurred about three months before the Thompson murders, but documentation showed a writ to levy was issued on June 4, 1986; a levy worksheet was dated June 11, 1986; and a receipt for the towing service used for the [Petitioner's] car was dated August 14, 1986. Mr. Williams, when shown these documents, continued to insist the incident did not occur in August 1986. (After the bankruptcies were filed in September and November 1986, Mr. Thompson would have been unable to levy on the Mercedes, and in January 1988, defendant surrendered his Mercedes to a representative of the bankruptcy trustee without incident.)
l. Nancy Lucia
Nancy Lucia (formerly Wilkinson) worked for the Thompsons on weekends for several years and was a personal friend of Trudy Thompson's. Ms. Lucia came to the Thompsons' home in the fall of 1987 to show Trudy Thompson her wedding photographs. While they were in an upstairs room looking at the photographs, Mickey Thompson came upstairs, out of breath and frantic. He was “almost kind of yelling, saying ‘[c]lose the window. Close the drapes. [Petitioner] could have a sniper out there right now.” The drapes were open at the time.
m. Joel Weissler
Joel Weissler was the Thompsons' nephew. He met [Petitioner] ¶ 1984 or 1985, at a race promoted by his uncle, where the Thompsons introduced [Petitioner] as their “new partner.” Mr. Weissler talked with [Petitioner] for about five minutes, and remained in his company for the four-hour racing event. Mr. Weissler also spoke briefly to [Petitioner] at a later event.
In late 1987 or early 1988, Mr. Weissler overheard [Petitioner] on the telephone. Mr. Weissler was talking on the telephone with Trudy Thompson, and could hear Mickey Thompson in the background, speaking with [Petitioner] on another phone line. Mr. Weissler heard [Petitioner] say, in a loud, threatening tone, “You will never see a cent of it. I'm going to hurt you and your family.” Mr. Thompson responded, “Leave my family out of it.”
About a month later, Mr. Weissler was visiting the Thompsons' home. He saw Mickey Thompson and heard [Petitioner's] voice on the speakerphone, saying: “You and your family won't see a penny of this. I'll get you. I'm going to hurt you,” and “I'm going to hurt your family.” Mr. Thompson was very agitated and repeatedly said, “You stay away from me. You stay away from my family.”
At the time of the Thompsons' funeral, Mr. Weissler told a detective he had heard [Petitioner] make threats, but he was not asked for any details about the threats. In August 1991, he and an uncle went to a police station in Los Angeles and met with the police to find out what was going on with the investigation, as they were “impatient for something to happen.” When Mr. Weissler was asked whether he mentioned the phone conversations he had heard to the police at the August 1991 meeting, he said he did not recall and he thought what he had to say was very redundant.
n. Lance Johnson
Lance Johnson was a friend and neighbor of the Thompsons. Years after the murders, he was at the Santa Ana federal courthouse with Mickey Thompson's sister, Collene Campbell. [Petitioner] walked by, and Mr. Johnson heard him whisper to Ms. Campbell, “You're going to get yours, bitch.”[FN4]
[FN4] At [Petitioner's] trial, the prosecutor asked Mr. Johnson if he recalled telling the police that the words he heard [Petitioner] say were, “I'm going to get you, too.” Mr. Johnson said it was “a very threatening remark to Collene Campbell,” but he did not recall stating those words to the police.
3. The Setting for the Murders and Other Pre-murder Facts
The Thompsons lived on Woodlyn Lane in a hilly neighborhood in “horse country,” with an irregular network of streets and private lanes or roads where “people get lost all the time.” Several driveways led out of the Thompson property, one of them to Woodlyn Lane, which was electronically gated. There was a locked gate between Woodlyn Lane and Royal Oaks, and a bike path below Royal Oaks. The home was also accessible via Mt. Olive Drive.
Ronald and Tonyia Stevens lived on Mt. Olive Drive. Several days before the murders, near midday, as Mr. Stevens drove past the horse corral next to his home, he noticed a car parked on the wrong side of the street. The person in the driver's seat was looking through binoculars in the direction of the nearby grammar school. Mr. Stevens pulled into his driveway at the far end of the corral. His wife and daughter were there, and they told him the people in the car had been there for five or ten minutes. Mr. Stevens asked his wife to call the police and walked through the corral to investigate. He approached from behind the car, a blue-green, rusted and dirty 1970's Chevy station wagon with Arizona plates.
From a distance of eight feet, Mr. Stevens saw two men in the car. The one in the driver's seat, a large man with “light-ish reddish hair,” wearing a cap on the back portion of his head, was holding binoculars. Mr. Stevens looked at the driver's face for about a minute, mostly from his left profile; he “wanted to see who it was,” because “the person didn't belong there looking towards the school.” As Mr. Stevens approached, the driver turned around and looked directly at him, and then drove away. Mr. Stevens made a mental note of the driver's face and tried to remember it. He also wrote down the license plate of the car on a business card. (Mr. Stevens told police that he was only able to view the driver from the side; at trial he was asked if he remembered telling the detective that he had only gotten within 15 or 20 feet of the driver, but he did not recall saying that. He also did not remember telling the detective he was not sure which man had the binoculars.)
Tonyia Stevens also saw the men in the car, “an old clunker station wagon with Arizona plates,” two or three days before the murder, between noon and 3:00 p.m. She was driving her daughter home from school, and turned left into her driveway. As she passed the car, she looked directly at the men and got a face-on view of the driver, who was just putting down binoculars. She and her daughter went into the house and talked about whether to call the police, because that type of car was out of place in the area, and she was concerned about child abduction. Then her husband arrived, told Ms. Stevens to call the police, and went back outside. Ms. Stevens followed him through the corral toward the car. She came within 10 or 15 feet of the car, and saw the driver's face when he looked in her direction. After the driver sped away, Ms. Stevens called the sheriff's department from a telephone in the garage to report the suspicious-looking car; she wanted the police to know “in case anything happens that we have information.”
Mr. Stevens said that, even with binoculars, the Thompson residence and Woodlyn Lane would not have been visible from the car's location.
Kathy Weese later testified that while she was working for [Petitioner's] company, on one occasion she saw a station wagon in the parking lot, an older station wagon with out-of-state plates, that had never been in the parking lot before and that she never saw again.
4. The Murders
The prosecution sought to show that Mickey Thompson was executed after watching in horror as the same gunman first put a bullet through his wife's head, and that this was exactly how [Petitioner] wanted it to happen. The evidence was as follows.
a. Allison Triarsi-the witness to the murders
Fourteen-year-old Allison Triarsi witnessed the murders. The Thompson home was across the street from and down the hill below the Triarsi residence. At 6:00 a.m. on the day of the murders, Miss Triarsi was taking a shower and heard “horrible shrieks and a lot of screaming” from a high-pitched voice. She also heard multiple gunshots. Her mother came in, grabbed her, and pushed her to the floor of the dining room. It had floor to ceiling windows, so she could see everything that happened in front of the Thompson home.
Miss Triarsi saw Mickey Thompson toward the top of the Thompson driveway, by the garage door. The Thompson minivan was in the driveway with the doors open. Trudy Thompson was towards the bottom of the downward sloping driveway. There was a man with Mr. Thompson who “had a gun and was directing him and making him go in certain directions.” Miss Triarsi heard Mr. Thompson say, over and over, “Please don't kill my wife,” a statement that was directed to another man “at the bottom of the driveway who had a gun and coming towards Trudy.” Mr. Thompson “was extremely agitated in his actions. He was moving in an agitated way. He was pleading for Trudy's life. He was very upset. The man was holding the gun directing the gun at him.” Mr. Thompson was limping and “holding his body in different locations at different times,” “trying to stand, but he was struggling to do that.” It appeared Mr. Thompson was trying to go to his wife, and the gunman was “hold[ing] him at bay with an outstretched hand with the gun in his hand.”
While Mickey Thompson was pleading with the gunman, Trudy Thompson was on her knees at the bottom of the driveway with her hands “up and out to try to protect herself.” She said, “Please, please don't kill me.” The gunman closest to Trudy Thompson walked up close to her and was standing over her. Up to this point, Miss Triarsi had not seen anyone shoot a gun. The gunman near Trudy then shot her in the head. She fell to the ground and did not move. Miss Triarsi did not remember what the gunman who shot Trudy did next, “because the next thing I remember Mickey is getting shot.”
Miss Triarsi saw Mr. Thompson trying to move toward his wife, “extremely upset; screaming; crying,” and “[h]e ended up getting shot several times next.” “He was shot in the direction of his torso/chest. I remember him grabbing his leg.” Miss Triarsi ran outside down the driveway, because she thought Trudy might still be alive. Miss Triarsi ran to her, but Trudy Thompson never moved and had blood all over her head. Miss Triarsi wanted to go to Mickey Thompson, but then she “started to hear more gunshots.” She was “very scared,” and hopped over a stone wall, ducked and waited there. Her mother realized where she had gone and was halfway down the driveway, running towards her, when the gunshots rang out. When the police arrived, “we were still hiding.” Miss Triarsi never went up to the top of the driveway where Mr. Thompson was lying. She did not see either of the gunmen escaping, but she heard a clicking noise, like a 10-speed bike with thin wheels. The sound came from the direction of the back way out of the Thompson property, and grew fainter and fainter.
b. Lance Johnson-the witness to the escape
A neighbor of the Thompsons, Lance Johnson, was wakened by five or six gunshots. He ran to the window, and after 15 to 20 seconds of silence, he heard Mickey Thompson loudly screaming, several times, “Please do not hurt my wife.” Then, he heard another series of gunshots, followed by silence. He got out his gun, went to one of his front windows, and saw two African-American males riding bicycles (English racer bikes) down one of several driveways leading out of the Thompson property, this one leading to the Thompsons' barn and Woodlyn Lane. As they started down Woodlyn Lane in front of his home, he yelled for them to stop, but they did not look in his direction. He then fired a shot at them, but they just pedaled faster. One of them had a small bag (about 12 inches long and 4 inches wide) that “went up to a drawstring, . . . more or less pear-shaped,” slung over his shoulder.
c. Other witnesses to the escape
Wilma Johnson was driving eastbound along Royal Oaks Drive North, at about 6:00 a.m., and saw two men with bicycles run in front of her van near the intersection with Woodlyn Lane, causing her to brake suddenly. She saw one of them very clearly, a “tallish” black man wearing a hooded sweatshirt. They were on foot, pushing 10-speed bikes that looked new and shiny, and running diagonally across the street. They disappeared through a break in the fence toward the bicycle path that ran parallel to Royal Oaks on the other side of the fence.
Claudette Freidinger was driving through Bradbury, “around 6:00-ish” in the morning, on her way home from taking her son to work. She stopped at an intersection on Royal Oaks. She saw two black men on good bicycles headed toward her, one with a hood and one without, “really, really barreling through the intersection” without stopping at the four-way stop. One of them looked in her direction. They were headed southbound, toward the freeway. (When police interviewed her, Ms. Freidinger said her son began work at 7:00 a.m., and expressed doubt about the involvement of the person she saw based on the timing.)
d. The escape route
The escape route down the back side of the Thompson property to Woodlyn Lane was “a very narrow declining paved road” that “curved and kind of wound” downhill, leading to an electronically controlled gate at Woodlyn Lane, and then to Royal Oaks. A bicycle would be the perfect vehicle for that road, because “two cars passing each other would have great difficulty.” The gate was electronic, but could be easily opened manually by applying pressure to one of the supporting arms. From there, at Woodlyn and Royal Oaks, a bicyclist would be able to pass through a break in the wooden fence bordering Royal Oaks, to the running and bike path below. The bike path intersected Mt. Olive, a few blocks from access to the freeway.
e. The murder scene and initial investigation
When the police arrived at the crime scene, they found Trudy Thompson's body at the base of the steep, downward sloping driveway, and Mickey Thompson's body toward the top of the driveway, close to the garage door. Both had fatal gunshot wounds to the head, as well as gunshot wounds to their bodies. Trudy Thompson would have been visible to and within speaking distance of Mickey Thompson. A van appeared to have reversed into a retaining wall; its door was open, shattered glass from the driver's door was on the ground, and there was a bullet hole in the windshield.
When criminalist Elizabeth Devine arrived a few hours later, she saw money and jewelry in plain view on the van's seat. She found shoe prints in several locations, some of them from an area where miniature orange trees were planted; she also found freshly cut orange peels in the same area. Deputy Sheriff Linda Arthur photographed a stun gun that was in the driveway.[FN5]
[FN5] Kathy Weese later testified that she saw a stun gun in a box in a storage area of [Petitioner's] Laguna Beach residence while she was house-sitting there in 1986.
There was a wallet in Mickey Thompson's pocket with hundreds of dollars in cash. Trudy Thompson was wearing high-value gold and diamond jewelry, and there was $3,700 in cash inside her purse in the van. There was no indication of any attempt to remove property from either of the Thompsons, no sign of forced entry to the house, and the house alarm was armed and had not been set off. The garage door was closed. There was a safe inside the garage, but no indication it had been tampered with.
Detective Reynold Verdugo found expended bullet projectiles and casings at various locations at the scene, as well as two live rounds.
Criminalist Manuel Munoz determined that all of the expended cartridge casings from the scene were 9-millimeter Luger caliber, and two firearms were used. Four expended casings and two live rounds were from the same weapon; the other four expended casings were from a second weapon. Two expended bullets removed from Trudy Thompson's body, one removed from the van's passenger door, and one found under Mickey Thompson's head, were fired from the same weapon. The others, found inside the garage, near the garage, to the left of Mickey Thompson's body and inside the van on the driver's side, were from the second weapon.
Mickey Thompson suffered seven gunshot wounds, three to his stomach, one to his hip, two to the back of his hand, and one to his head, behind his right ear. Trudy Thompson suffered two gunshot wounds, one to her lower stomach, likely inflicted first, which could have occurred while she was sitting in the van, and one to the back of her head.
5. [Petitioner's] Actions Before and After the Murders: the Yacht and the Gold
In December 1987, Diane Goodwin, [Petitioner's] wife, indicated to a bank representative that she was in the process of deciding on the purchase of a yacht. In January 1988, Ms. Goodwin entered into a purchase agreement with Fraser Yachts for a $400,000 yacht, and wrote a check serving as an earnest money deposit for the purchase. A boat loan for Ms. Goodwin was approved on March 9, 1988. A seller's closing statement for the yacht was dated April 28, 1988, and a certificate of ownership dated May 3, 1988, showed Ms. Goodwin as the owner of the yacht, named “Believe,” with a mortgage of $200,000 encumbering the yacht.
In May 1988, a coin dealer engaged in two transactions he said were with [Petitioner]. He believed his initial contact with [Petitioner] was by telephone. He sold, in the two transactions, almost $350,000 in gold coins, paid for by cashier's checks signed by [Petitioner's] wife.
On June 27, 1988, [Petitioner] brought the 57-foot yacht named Believe to a marina in South Carolina, managed by Victor Utsey, for installation of bilge pumps and radio equipment. The yacht was in the marina for about six weeks. After that outfitting, the yacht would have been capable of sailing offshore, such as to the Turks and Caicos Islands, or to the Bahamas and South America. The yacht was large enough for transatlantic sail or anywhere in the world, if [Petitioner] had the capacity to produce potable water, and it was small enough to sail into small waterways and inlets. Two people could live on the boat for an extended period of time. On the second or third day of August, [Petitioner] unexpectedly asked Mr. Utsey to expedite the work. Mr. Utsey did so, and [Petitioner] sailed away from the marina.
In May 1991, a boat surveyor named Frank Magee was retained by Maryland National Bank to repossess [Petitioner's] yacht. He spent three to four weeks in Guatemala searching for it. During that time, he had a phone conversation with [Petitioner], who told him “he would never find his boat.” Mr. Magee located the yacht and [Petitioner] on the Dulce River in Guatemala, and repossessed the yacht for the bank.
6. The Investigation and Arrest
Detective Michael Griggs of the Los Angeles County Sheriff's Department was initially in charge of the murder investigation. He retired in January 1992. (One of [Petitioner's] claims is that Detective Griggs's investigation was “derailed” by interference from Mickey Thompson's sister.) Sergeant John Yarborough of the “unsolved” unit led the investigation after Detective Griggs retired, and in 1995, Detective Mark Lillienfeld was assigned to take over the investigation.
In 1997, Detective Lillienfeld participated in the production of an “America's Most Wanted” show, hoping to identify the two actual perpetrators of the murders. (The detective was also aware that an “Unsolved Mysteries” episode about the murders had aired in 1988 and several times since then.) At various times in his investigation of [Petitioner], Detective Lillienfeld sought assistance from the DEA, the FBI, Customs, and other law enforcement agencies; sought and received authorization for a wiretap of [Petitioner's] telephones; and put [Petitioner] under physical surveillance.
In 1998, Detective Lillienfeld attended a meeting with the sheriff and the then-district attorney, Gil Garcetti. Mr. Garcetti rejected the case against [Petitioner] as having insufficient evidence for a successful prosecution. (Goodwin v. Superior Court (Apr. 23, 2004, G031285) [nonpub. opn.].)
In 1999, [Petitioner] had a conversation with Randy Garell, the owner of a store specializing in firearms and outdoor apparel and equipment. The two men knew each other from an earlier business relationship. [Petitioner] came to Mr. Garell's shop, and wanted to know how guns were traced; Mr. Garell told him. ([Petitioner] told Mr. Garell he was trying to investigate the Thompson case because he was a suspect, and defendant “may have” also said that the detective (presumably Detective Lillienfeld) “was saying some things that were not true about weapons [Petitioner] may have owned.”) Then, in early 2000, [Petitioner] came to the store again and asked if stun guns were traceable. Mr. Garell said stun guns were not traceable, and did not fall under the same restrictions as guns.
Detective Lillienfeld also interviewed Gail Moreau-Hunter in March 1999. Ms. Moreau-Hunter lived with [Petitioner] in Colorado in 1991 and 1992. Ms. Moreau-Hunter told Detective Lillienfeld “she was privy to a conversation in which [Petitioner] took responsibility for the murders,” but subsequently told the detective that [Petitioner] “never actually took credit for the crime but merely left that impression with her.” (Goodwin v. Superior Court, supra, G031285, at p. 9.) (Ms. Moreau-Hunter testified at the preliminary hearing in Los Angeles-but not at trial-that sometime in 1992, [Petitioner] showed her a tape of an “Unsolved Mysteries” episode reenacting the Thompson murders and said, “Look what I've done and I got away with it,” and “I hired two black teenagers to carry out the assassinations.”)
In early 2001, Detective Lillienfeld interviewed Ronald and Tonyia Stevens for the first time. They gave the detective the information about the man with binoculars parked in front of their house a few days before the murders, as described in part 3, ante. (Mr. Stevens had called the police several times, not long after the murders, saying he thought he had some information about the Thompson murders; he was told a detective would call him back, but no one ever did.)
In March 2001, Mr. Stevens viewed a photographic lineup, or “six-pack.” He had described the man with binoculars as “a big man with reddish colored hair and a ruddy complexion.” He later testified that he saw the person who had been in the car in front of his house in the six-pack. He and his wife were asked to view a live lineup, separately, and both of them identified [Petitioner].
In December 2001, Detective Lillienfeld obtained a search warrant for [Petitioner's] home, seizing thousands of documents. [Petitioner] was arrested and charged by the Orange County District Attorney with the 1988 murders and with conspiracy to commit murder.
On April 23, 2004, the Court of Appeal issued a writ ordering the trial court to dismiss the case for lack of venue.[FN6] The court “emphasize[d] that any new evidence, not previously considered by the Los Angeles District Attorney prior to its rejection of the case, can-and should be-given to the Los Angeles District Attorney for reconsideration of that decision, or to the Office of the Attorney General for its review and consideration.” (Goodwin v. Superior Court, supra, G031285, at p. 34.)
[FN6] [Petitioner] had previously sought a writ, after denial of his motion to recuse the Orange County District Attorney, alleging a conflict of interest due to that official's personal relationship with Mickey Thompson's sister. The Court of Appeal denied that petition, allowing [Petitioner] “to pursue his assertion that Orange County
lacked any disinterested purpose in prosecution.” (Goodwin v. Superior Court, supra, G031285, at pp. 2-3.)
The Los Angeles District Attorney charged [Petitioner] with the murders, and after a six-day preliminary hearing in October 2004, [Petitioner] was held to answer and arraigned on October 28, 2004.
7. The Trial
The trial court denied successive motions to dismiss the case, to recuse the Los Angeles District Attorney's office, and to remove the two prosecutors handling the case-as delineated in detail post in connection with [Petitioner's] contention these rulings were erroneous. Trial began in October 2006.
In addition to the facts already described, other evidence was adduced as follows.
a. Karen Stephens-Kingdon's testimony on financial records
Karen Stephens-Kingdon was a certified public accountant, an investigative auditor for the Orange County District Attorney's office, and a certified fraud examiner and internal auditor. She had previously testified as an expert forensic accountant or investigative auditor. In early 1992, she was asked to look at the financial records of [Petitioner] and his wife to determine “the source of assets and funds and the ultimate disposition of those assets and funds.” She examined thousands of documents from 1986, 1987 and 1988, and found evidence that funds that had been in [Petitioner's] name “ended up in Diane Goodwin's name.”
Ms. Stephens-Kingdon testified that while the yacht Diane Goodwin purchased was in her name, it was “purchased with funds that had been commingled for so many years that this boat purchase was for both Mr. and Mrs. Goodwin.” The Goodwins' residence in Laguna Beach, which they purchased and lived in together, appeared to have been purchased with commingled assets, and was liquidated (converted into cash or other liquid assets) in 1988.
Ms. Stephens-Kingdon testified in particular about two investments-JGA Whitehawk and Desert Investors-that were in the name of Diane Goodwin in 1988. Ms. Goodwin put what Ms. Stephens-Kingdon considered to be “commingled funds” of both the Goodwins into those investments in her own name. Then, there was a distribution from JGA Whitehawk to Diane Goodwin for $365,000 on May 6, 1988, and a few days later, a portion of those funds was used to purchase $275,000 in gold coins, and $10,000 was wired offshore. Similarly, $215,000 was distributed from Desert Investors to Diane Goodwin in May 1988; she transferred $140,000 to an account offshore and purchased $75,000 in gold coins.
In short, “funds that were originally commingled and invested end[ed] up going offshore or to purchase gold coins, cash or traveler's checks.” Ms. Stephens-Kingdon's opinion was based on early tax returns, the home in both the Goodwins' names that was liquidated in 1988, and financial and banking records “that were in both of their names and then the records show that it all funnels into Diane Goodwin's name and then ... the funds go offshore.” She also based her opinion in part on correspondence purporting to be from [Petitioner]. One of the letters stated [Petitioner] “was handling the entire [Desert Investors] transaction and not to discuss it with Diane because he was handling it” (even though the entirety of the Desert Investors account was in Diane Goodwin's name); another said certain items should be put in Diane Goodwin's name because of the Thompson issue. (This testimony was admitted only to show the basis for Ms. Stephens-Kingdon's opinion.)
Ms. Stephens-Kingdon also reviewed bank statements showing that on or about March 16, 1988 (the date of the murders), there was a $20,000 withdrawal from Diane Goodwin's account, likely as a cashier's check or cash as there was no personal check. Ms. Stephens-Kingdon was unable to trace that money; the bank “had no supporting documents for their record.”
b. Evidence of a robbery motive for the murders
The defense adduced evidence intended to suggest a robbery motive for the murders. Eric Miller, a friend of Mickey Thompson's, was with Mr. Thompson the night before the murders. Mr. Thompson was talking to Lee Haslam about investments. Sheriff's Detective Rene Laporte interviewed Mr. Miller about a month after the murders, and took notes of the interview. According to those notes (Detective Laporte had no independent recollection of the interview), Mr. Miller told the deputy that “he heard Mickey Thompson say he had taken possession of a valuable item and named ... a specific dollar amount.” Counsel asked if Mr. Miller “actually use[d] the words ‘taken possession,'” and Detective Laporte said, “Yes.” (On cross-examination, he testified his notes were a paraphrasing of the conversation with Mr. Miller.) The notes became part of a report that was given to Detective Griggs, who was then managing the investigation. Detective Laporte did not, and was not directed to, look into Mr. Thompson's financial records to see if he could match up the dollar amount specified with any sort of deposit or outgoing notation in those records.
Sandra Johnson (Lance Johnson's wife) saw the two “very dark” men riding racing bikes down Woodlyn Lane, and told police that one of them “was carrying a white canvas bag, shopping bag size.” At trial, Ms. Johnson described the bag as “[a] small like drawstring bag,” “10, 12 inches,” “not a great big backpack, but something smaller.” Robert Wiborg, a coin dealer, testified that coins shipped via Brinks come in sealed canvas bags, generally white, that look like a regular bank bag and usually have a metal seal on the top.
A few weeks after the murders, Detective Gerald Jansen met Mickey Thompson's sister, Collene Campbell, and a locksmith at the Thompson home. Ms. Campbell had asked Detective Jansen to accompany her while she had a locksmith break into the safes in the Thompson home, so that the deputy could note what was in the safes. The detective's notes referred to damage to the safe in the garage; he wrote: “‘bolt bar bent. Fresh marks on the locking wheel. Safe empty.''' His notes did not indicate whether the locksmith created the damage or pointed it out to Detective Jansen, but he testified that “to the best of my recollection, it was after he had opened the safe, that's the way the safe looked.” He said that if the damage he noted had been there when he arrived, he would not have had the safe opened, and “would have called somebody out to look at it.” Detective Jansen would make such notes “[s]o that if somebody says we damaged it more than we actually did to open it, I could say how much we damaged it.” The safe in the bedroom closet contained jewelry and two envelopes of money.
c. The expert on eyewitness identifications
The defense presented testimony from an expert on eyewitness identification, Dr. Kathy Pezdek. She described the factors that influence the accuracy of eyewitness identifications. Dr. Pezdek opined that a 13-year delay between seeing an individual and identifying him “alone would render such an identification extremely dubious,” and indeed that the probability of correctly identifying a person, seen one time very briefly, after 11 months (much less 13 years) is zero. Dr. Pezdek also testified about suggestive lineup and identification procedures, as well as the relationship between the accuracy of an identification and the confidence of the witness in making it.
d. The defense's firearms expert
The firearms expert for the defense, Jacobus Swanepoel, examined the ballistics evidence and visited the crime scene. He determined the expended casings came from two different firearms, but could not make that determination with respect to the fired bullets. Based on the placement of expended cartridge cases in relation to expended bullets, Mr. Swanepoel opined that both guns were fired at both victims, and Mickey Thompson likely received his fatal head wound while he was lying down.
e. Investigation deficiencies and inconsistencies
The defense produced evidence purporting to show deficiencies in the investigation of the murders, as well as evidence of inconsistencies between the testimony witnesses gave in court and their previous statements to police investigators.
i. Investigative deficiencies
Detective Griggs, the lead investigator until January 1992, obtained [Petitioner's] telephone records and set up a database, but did not do the same thing for Mickey Thompson's telephones (and neither did Detective Lillienfeld). Detective Griggs did no financial investigation into [Petitioner] or Mickey Thompson or any Thompson family member or employee.
Detective Lillienfeld did not attempt to get financial or telephone records of individuals employed in the Thompson home.
There were notes in the original investigation about Arizona license plates on a car related to a suspect other than [Petitioner]. Even after Ronald and Tonyia Stevens told him about the Arizona license plate on the car in front of their house, Detective Lillienfeld did not run the Arizona license plate noted in the investigative file through the computer system, to find out if that license plate number was associated with a station wagon.
Over the years, Detective Lillienfeld was privy to clues involving black men as suspected shooters, but he never showed any photographs of African-American men to any witnesses in the case. A hair was removed from the stun gun found at the crime scene, but Detective Lillienfeld did not ask for DNA testing on it, nor did he submit the fingernail clippings and scrapings taken from the Thompsons for testing. (The defense eventually tested these items.)
ii. Witness inconsistencies
In addition to inconsistencies already noted, there were others.
When Detective Lillienfeld first interviewed Allison Triarsi in 1997, she told him that she thought the shooter could have been a white man; that she believed her recollection was influenced by her mother; that it was possible Trudy Thompson was shot while she (Allison) was running down her driveway; and that she had talked to a school psychologist about the incident.
When Detective Lillienfeld first interviewed Tonyia Stevens in 2001, she said she could not recall whether or not the car she saw parked in front of her home a few days before the murders was occupied. She did not tell him that the person she saw in the car reminded her of a childhood friend (as she did when she testified in court), and his report of her interview took up “maybe two paragraphs.”
Deputy Sheriff John Rodriguez, the first officer to arrive on the scene, interviewed Lance Johnson (who saw the two black men leaving the scene) an hour or so after the murders. Mr. Johnson told him he was awakened by gunshots and “about the same time” heard Mickey Thompson screaming to the effect of “‘[d]on't hurt his wife,' or ‘help,' screaming for help.” Mr. Johnson told Deputy Rodriguez that the shooting stopped and then a few moments later there were several more shots, after which he went outside and saw the bicyclists escaping. Detective Laporte interviewed Mr. Johnson that day, and stated in his notes that Mr. Johnson “said he wasn't sure whether he heard the gunshots first or the yelling first.”
8. The Verdicts
The jury convicted [Petitioner] of both counts of first degree murder on January 7, 2007, also finding the lying in wait and multiple murder allegations true. The trial court imposed consecutive terms of life without the possibility of parole, and made other orders not at issue on this appeal.(Dkt. No. 103, Lodgment 8 at 4-27).
IV.
PETITIONER'S CLAIMS
The Petition raises 17 grounds for federal habeas relief:
Ground 1: The trial court denied Petitioner due process when it failed to recuse the district attorneys.
Ground 2: The evidence was insufficient to sustain the murder convictions.
Ground 3: The unjustified delay of 16 years in prosecuting Petitioner violated his due process rights.
Ground 4: The trial court abused its discretion when it ruled there were no discoverable materials in Officer Grigg's personnel file.
Ground 5: The trial court erred in admitting Stephens-Kingdon's irrelevant and highly prejudicial expert testimony.
Ground 6: The trial court erred in admitting Wilkinson's irrelevant and hearsay testimony.
Ground 7: The trial court erred by permitting the prosecution to present evidence of Petitioner's bad character.
Ground 8: The trial court erred by permitting the prosecution to present irrelevant evidence of the victim's character.
Ground 9: The trial court denied Petitioner's due process right to present a defense by excluding materially exculpatory evidence.
Ground 10: The trial court erred by excluding evidence that the victim had purchased or talked about purchasing a large quantity of gold just prior to the murders.
Ground 11: The trial court erred by excluding evidence that Hunter failed three polygraph examinations.
Ground 12: A defective jury instruction permitted conviction without proof of connection and agreement between Petitioner and the killers.
Ground 13: The trial court violated Petitioner's due process rights when it instructed the jury that it could consider the witnesses' level of certainty when evaluating eyewitness identification.
Ground 14: The trial court erred by instructing the jury it could consider Petitioner's departure from the country five months after the murders as evidence of flight and consciousness of guilt.
Ground 15: The prosecutors violated their duty to present the material evidence fully and fairly regarding the charges upon which Petitioner stood trial.
Ground 16: The government's misconduct was outrageous from the beginning of the investigation to the verdict and damaged to the trust and integrity of the judicial system.
Ground 17: Reversal is required based upon the cumulative effect of the errors in Grounds 1 through 16.(Petition at 6-13).
V. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the adjudication of Petitioner's § 2254 petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA “bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a court “may not grant relief unless a state court's ruling ‘was contrary to ... clearly established Federal law[ ] as determined by the Supreme Court,' ‘involved an unreasonable application of' such law, or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Djerf v. Ryan, 931 F.3d 870, 878 (9th Cir. 2019) (quoting 28 U.S.C. § 2254(d)). “Clearly established federal law” means federal law that is clearly defined by the holdings of the Supreme Court at the time of the state court decision. See, e.g., Cullen v. Pinholster, 562 U.S. 170, 181 (2011) (citation omitted). Although only Supreme Court law is binding, “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d 852, 959 (9th Cir. 2011) (citation omitted). “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Richter, 562 U.S. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). “This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]” Pinholster, 563 U.S. at 181; see also Johnson v. Williams, 568 U.S. 289, 292, 298 (2013) (“AEDPA sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was adjudicated on the merits in State court proceedings.”). In conducting this review, the court looks “to the last reasoned state court decision for each claim.” Djerf, 931 F.3d at 878 (citing White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018)). “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, -U.S.-, 138 S.Ct. 1188, 1192 (2018) (“We hold that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.”).
Here, Petitioner raised Grounds One through Three and Five through Seventeen in his petition for review to the California Supreme Court. (Dkt. No. 103, Lodgments 11, 12). The Court “looks through” the California Supreme Court's silent denial to the last reasoned decision, which is presumed to be the basis for the California Supreme Court's decision. Wilson, 138 S.Ct. at 1192; see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”); accord Cannedy v. Adams, 706 F.3d 1148, 1159, as amended, 733 F.3d 794 (9th Cir. 2013) (“[W]e conclude that Richter does not change our practice of ‘looking through' summary denials to the last reasoned decision-whether those denials are on the merits or denials of discretionary review.”) (footnote omitted). That presumption has not been rebutted here. Therefore, the Court will consider the Court of Appeal's reasoned opinion addressing Grounds One through Three and Five through Seventeen. See Berghuis v. Thompkins, 560 U.S. 370, 380 (2010).
Petitioner did not raise Ground Four in his petition for review to the California Supreme Court (Dkt. No. 103, Lodgment 11) and filed no habeas petitions in the California Supreme Court. Ground Four is therefore unexhausted. Nevertheless, Respondent requests this Court to consider and deny Ground Four as noncognizable. (Answer ¶ 4; Ans. Mem. at 27-29). The Court retains the discretion to address and deny unexhausted claims on the merits when it is “perfectly clear” that the petitioner does not raise even a colorable claim. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.”); accord Rice v. Paramo, No. 22-15648, 2023 WL 1879504, at *1 n.1 (9th Cir. Feb. 10, 2023). Generally, where a federal court reviews an unexhausted claim for relief, there is no reasoned state court decision, and the federal court reviews the merits of the unexhausted claim de novo. See Thompkins, 560 U.S. at 390; see also Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2013) (“Where, as here, there is no state court decision on the merits, the district court reviews the merits de novo.”); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (“De novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits.”). Here, however, the California Court of Appeal issued a reasoned decision rejecting Ground Four. (Dkt. No. 103, Lodgment 8 at 78-79). Like previous district courts, this Court has found no controlling authority for which standard of review is appropriate in this unusual situation. See, e.g., Greene v. Hedgpeth, No. EDCV 12-0149, 2012 WL 5381607, at *11 (C.D. Cal. Sept. 18, 2012) (“[I]t appears from the Court's own survey of case law in this Circuit that the Ninth Circuit has yet to address the issue of what standard applies when determining whether a claim that was addressed on the merits on direct appeal by the California Court of Appeal, but then never presented by the petitioner to the California Supreme Court, constitutes ‘even a colorable federal claim.'”), report and recommendation adopted, No. EDCV 12-0149, 2012 WL 5381624 (C.D. Cal. Nov. 1, 2012); accord Olivares v. Covello, No. CV 19-9244, 2020 WL 1855418, at *3 (C.D. Cal. Mar. 18, 2020) (collecting cases applying de novo review to claims addressed in reasoned decision by California Court of Appeal but never presented to California Supreme Court), report and recommendation adopted, No. CV 19-9244, 2020 WL 1853125 (C.D. Cal. Apr. 13, 2020). “Given this lack of clear authority, this Court, like those before it, will apply a de novo standard of review to petitioner's unexhausted claim because a claim that fails under that standard of review would necessarily fail under AEDPA's deferential standard of review.” Rodarte v. Ducart, No. CV 15-2244, 2015 WL 9914180, at *3 n.2 (C.D. Cal. Nov. 2, 2015), report and recommendation adopted, No. CV 15-2244, 2016 WL 304292 (C.D. Cal. Jan. 25, 2016); see Thompkins, 560 U.S. 370 at 390 (“Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.”) (citing 28 U.S.C. § 2254(a)).
VI.
DISCUSSION
A. Failure To Recuse District Attorneys
In Ground One, Petitioner claims that the trial court violated due process by failing to recuse the district attorneys involved in prosecuting his case. (Petition at 6). He argues that the court committed structural error when it denied his motions to dismiss the case and to recuse the Los Angeles County District Attorney because of the disclosure of privileged attorney-client materials. (Petition at 6).
1. The California Court of Appeal Opinion
On appeal, the California Court of Appeal recounted the factual circumstances regarding the disclosure of Petitioner's privileged attorney-client materials:
On December 13, 2001, police executed a search warrant for [Petitioner's] home in Orange County, seizing thousands of documents filling more than 120 bankers boxes. On December 26, 2001, [Petitioner's] then-attorney, Jeffrey Benice, wrote to the Orange County prosecutor telling him the boxes of documents and computers seized contained attorney-client privileged documents, and demanding appointment of a special master to protect [Petitioner's] privilege. The prosecutor declined, observing a special master was required only when a search warrant sought documents in the possession or control of an attorney. According to [Petitioner], the documents were held by the Orange County prosecutors for several months, copied and then most of them were returned to [Petitioner].
More than two years later, after the Court of Appeal found venue was improper in Orange County, the copies of the seized documents were forwarded to the Los Angeles District Attorney's office. [Petitioner's] former counsel did not inform his trial counsel of the attorney-client privilege issue, and his trial counsel did not discover it until she reviewed the seized documents provided to her in discovery.
The documents seized (copies of which were later reviewed by a special master appointed by the trial court, as described post) included some 475 pages (by the prosecution's count) that were ultimately found to be attorney-client privileged documents. The trial court agreed the material
was privileged: “It is information communicated to and from [Petitioner's] lawyers; it's information [Petitioner] has communicated to his lawyers in letters back. It does involve his strategies and his potential defenses to the charges.”
[Petitioner] made a series of motions seeking a remedy for the invasion of [Petitioner's] attorney-client privilege.
i. The first motion to dismiss
On December 9, 2004, [Petitioner] moved to dismiss the case, claiming intentional violation of [Petitioner's] attorney client privilege and citing the power of the court arising from the due process clause to dismiss a case for outrageous conduct. [Petitioner] claimed that “[f]ew, if any” of the thousands of documents seized were named in the search warrant, and submitted a sampling under seal of 35 documents that were obviously privileged.
The motion asserted the authorities were aware when they executed the search warrant that many of the documents in [Petitioner's] home office were privileged documents. ([Petitioner] told Detective Lillienfeld so when the detective served him with a grand jury subpoena in March 2001, and [Petitioner] posted signs on his office door.) The motion also asserted that Detective Lillienfeld procured the services of Thurston Michael (Butch) Jones, who was working as an office assistant for [Petitioner] and later for attorney Benice, to provide daily updates “on activities relating to [Petitioner's] preparation of his defense,” including “reporting on issues he had learned during attorney/client conferences.”
At the hearing on March 17, 2005, the court stated, as to the 35 samples submitted, “I can't find any evidentiary value to those documents,” and noted that no evidence presented at the preliminary hearing came from those documents. The court posed the pertinent question as whether the Los Angeles District Attorney had evidence that came from potentially privileged information. The prosecutor made no objection to a court order precluding the prosecutor from presenting any evidence derived from potentially privileged communications.
[Petitioner] orally requested recusal of the prosecutor as an alternative to dismissal, arguing that the first time the Los Angeles prosecutors saw an obviously privileged document, they were obliged to “close the book and to give it to the court, all 40,000 pages,” and seek appointment of a special master. The court rejected this notion, observing that “the Orange County D.A.'s office probably should have [done something] and they didn't,” but the Los Angeles prosecutor was not made aware of the objections that had been made in Orange County after the seizure, and had no obligation “three or four years after the fact to then bring to the court's attention the fact that there might be some privileged material.”
The court thus denied the motion to dismiss and the recusal request. But, since there were hundreds of other privileged documents, the court ruled the defense could present those to the court under seal, for review by the court or a special master. This would ultimately provide the court with a means of enforcing its tentative remedy: that no evidence derived from potentially privileged documents could be used. The court also concluded a hearing would be necessary on the claim that Detective Lillienfeld had interfered with attorney-client privilege by using Butch Jones to report on information obtained in attorney-client conferences.
ii. The second set of motions
On April 7, 2005, [Petitioner] filed motions under seal, including a motion to dismiss for egregious governmental misconduct; a motion to recuse the district attorney's office based on due process, “the inherent conflict of interest created by the review of” attorney-client privileged documents, and violation of [Petitioner's] Fourth, Fourteenth, Fifth and Sixth Amendment rights; and a motion for the return of illegally seized documents under [California] Penal Code section 1538.5. The court held numerous hearings, with the following results.
On April 27 and May 16, 2005, the court took testimony from Detective Lillienfeld, Michael (Butch) Jones, and Attorney Jeffrey Benice with respect to [Petitioner's] claim that the case should be dismissed because Detective Lillienfeld used Mr. Jones to obtain attorney-client privileged information. The trial court denied that basis for [Petitioner's] motion to dismiss, finding based on the testimony “no intentional interference with the attorney/client privilege ....” Mr. Jones “did some running for Mr. Benice; he did some copying for Mr. Benice and [Petitioner]. He may have looked at some files and obtained some information.” But the court declined to categorize the relationship “as one that is covered by the attorney/client relationship,” and saw no “intentional act on the part of law enforcement to interfere with the attorney/client privilege or to obtain privileged material.” “I agree that perhaps there was a question that could have been asked or should have been asked. But that in no way causes me concern such that I should find the sanction an appropriate remedy, particularly a dismissal.”
On May 26, 2005, the Attorney General filed its opposition to [Petitioner's] motion to recuse the district attorney's office, including a declaration from prosecutor Alan Jackson. Mr. Jackson stated he was the only current employee of the district attorney's office who had reviewed the material obtained through the search warrant. He stated that, to the extent any document he reviewed was protected by attorney-client privilege, he had not disclosed it to anyone else, nor would he do so in the future. He further stated no decisions were made, influenced, affected or impacted by the office's possession of any privileged document; the office had not and would not use any privileged information; all evidence introduced at trial would be derived from independent sources; all pretrial and trial strategy had been and would be based on independent sources; “and nothing obtained has had or will have any effect whatsoever on the decisions about the scope and nature of the investigation and prosecution, about what witnesses to call (and in what order), about what questions to ask (and in what order), about what lines of defense to anticipate in presenting the casein-chief, and about what to save for possible rebuttal.”
On June 2, 2005, the court denied [Petitioner's] motion for recusal of the district attorney's office and prosecutors Alan Jackson and Pat Dixon. (The recusal motion was based on the district attorney having seen both privileged documents and documents asserted to be beyond the scope of the search warrant.) The court denied the motion without prejudice, finding no showing of a conflict that would deprive [Petitioner] of a fair trial. “The only thing I can say is that the People are in possession of privileged material, that they have agreed . . . not to use . . . in any way and not to use any evidence obtained as a result of that material in the trial.” The court said that “if circumstances change, or if other facts are developed ... I'm sure [the defense will] renew that motion and possibly even [the] motion to dismiss, but at this point I'm going to deny the [California Penal Code section 1424 (section 1424)] recusal motion.” (Under section 1424, a motion to disqualify a district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.”) The court also observed, as to the section 1538.5 motion for return of property, that the defense had shown there were some materials that were “technically outside the scope of the warrant,” shifting the burden to the prosecution.
The court decided to appoint a special master to determine which documents were privileged and which were beyond the scope of the warrant.
On January 25, 2006, the defense again moved, under seal, to dismiss the charges based on egregious governmental misconduct, or in the alternative to recuse the entire district attorney's office, or to remove the individual prosecutors. The defense provided a detailed analysis of the privileged materials and why the case should be dismissed based on the prosecutor's access to the privileged documents.
On February 6, 2006, the trial court again refused to recuse the entire district attorney's office, finding “that it wasn't this D.A.'s office that committed this egregious misconduct,” and the defense had not presented enough “to show that the entire D.A.'s office needs to be recused in this matter . . ..” The court observed it had reviewed the privileged material the special master had segregated. The court reiterated that “I don't believe under any scenario we are going to get to a recusal of the entire D.A.'s office,” but that a hearing should be held on the possible recusal of the two prosecutors. (The prosecutor had no access to the sealed pleadings, and no opportunity to respond to the defense claim that the prosecution's theory of the case was altered in light of the privileged information.) The court also reiterated its finding that “I don't think that we have egregious misconduct on the part of this prosecutorial agency such that the court would have to dismiss the case as a sanction,” and indicated that “in a perfect world, perhaps [prosecutor Jackson] should step aside.”
At a hearing on February 15, 2006, on the recusal issue, prosecutor Jackson reported that his office declined the court's suggestion he step aside. The court found no disabling conflict of interest under section 1424, but believed it had “the inherent authority to disqualify a prosecutor who has been tainted by attorney/client privilege material.” The court decided prosecutor Jackson should review the privileged documents cited and analyzed in the [Petitioner's] recusal request, so that he would have the opportunity to demonstrate that the privileged material had already been disclosed to others such that the court could find a waiver of the privilege.
The prosecutor then filed, for a hearing on March 6, 2006, a detailed analysis of the documents the special master concluded were privileged, arguing that “[Petitioner] has not, and cannot, establish that he has suffered any prejudice as a result of [Deputy District Attorney] Alan Jackson's review of the claimed privileged documents.” The prosecutor described the documents and categorized them as either (1) documents with no facial indication that they were protected communications; (2) nonprejudicial as not pertaining to the Thompson murders; or (3) documents to which waiver applied because the subject matter had been published in alternate, unprivileged sources. The prosecutor attached various publications, including a transcribed interview from “America's Most Wanted,” as well as [Petitioner's] memorandum to the producers of that television show, and concluded [Petitioner] “has systematically published in almost every media forum available his thoughts, theories, defenses, excuses, accusations, analyses and beliefs surrounding the Thompson murders.”
At the March 6 hearing, the court expressed doubt that it had inherent authority to recuse the district attorney (as opposed to authority under section 1424), and ruled: “[G]iven what the People have presented to the court by way of, No. 1, that there was a waiver; No. 2, the issue of the documents being irrelevant and third argument that there was no prejudice, ... I think the People's response addresses the court's concerns and I don't know at this point that I'm prepared to go any further assuming I have inherent authority to recuse the DA to enforce the order that I made earlier. I am not prepared to go that way.” And, “even assuming I do [have inherent authority], ... there has been no substantial showing of prejudice which would warrant the court taking that next step [removing prosecutor Jackson]. I think the remedy that I imposed earlier in these proceedings is adequate.” And, “I think I can guarantee that the attorney-client privileged material is not used.” “I am basically saying that based on what I have now, all of the available information to me including now all of the information that I have seen that is in the public domain-let me put it that way. Not that it is not privileged, but it is information in the public domain and so based upon all of the available information that I have as of this moment, I am not prepared to take a step that I think is a drastic step that does implicate separation of powers arguments and is a remedy that I would have been prepared to utilize in the appropriate case. This is not the appropriate case given all of the available information I have before me and so that is where I am at.”
iii. The motion to exclude witnesses' testimony
In May 2006, [Petitioner] filed a motion to exclude the trial testimony of 12 witnesses, including Phillip Bartinetti, Dolores Cordell, Jeffrey Coyne, and Karen Stephens-Kingdon-and in the alternative, again renewed its recusal and removal motions. The named witnesses were the “financial witnesses,” and [Petitioner] argued that “by calling the financial witnesses, the prosecutors would be changing theories of the case based upon the content of [Petitioner's] privileged documents [(the ones that pertained to the ‘federal fraud litigation')].” (In 1993, [Petitioner] was charged in federal court with bankruptcy and loan fraud, and was ultimately convicted of making false statements to a financial institution. According to [Petitioner], some of the named witnesses “were part of the driving force behind [Petitioner's] prosecution for federal crimes relating to his bankruptcy,” and they “will be the prosecutor's main witnesses to try to establish ‘motive' for these murders.”) “The blueprint of his defense to the financial allegations has been exposed. His thought processes and conduct relating to his handling of the civil judgment and bankruptcy have been exposed. His right to testify on his own behalf has been compromised as he is now going to have to face a prosecutor who is armed with information that he received outside the bounds of the rules governing fair trials.”
The prosecutor challenged the defense to point to “anything that establishes that the defendant has suffered a prejudice so bad that he cannot receive a fair trial if I call any of those witnesses who deal with his financial status.”
The court heard and denied [Petitioner's] motion on June 20, 2006. The court pointed out its earlier order on the prosecutor's obligation not to use any privileged material or any material derived from it. “So I assume that order has been taken seriously by the People. I assume that the People are calling witnesses that they were planning on calling all along. And that they did not obtain any new information from their accidental review of the privileged material. So correct me if I'm wrong on that.”
The court concluded: “I think that the People's position has actually a great deal of merit based on what I have reviewed and what I ruled on in the previous litigation in terms of whether or not they are able to comply with my order. I think they are. And the remedy was that they were not permitted to use evidence obtained from the privileged material. And they say they are not. [¶] And I guess until we get to a point during trial where the defense wants to renew their motion based on testimony, I don't know what else I can do pretrial in that regard. I mean it's an unfortunate situation I think we all agree. But we really kind of resolved this issue before. And I don't think there is any need for any additional sanction. Because that's what is being requested here is that the court exclude testimony. [¶] The court will not exclude testimony that's otherwise relevant at this trial. And it does appear that the financial motive is the motive in this case. And the court doesn't believe that there has been a sufficient showing to warrant the recusal of these prosecutors from this case. But, again, the court has the
ability to monitor and enforce the court's previous order. And that will be done.”(Dkt. No. 103, Lodgment 8 at 28-36).
In denying Petitioner's claim, the state appellate court determined that there was no outrageous governmental misconduct by the Los Angeles County District Attorney's office:
In this case, the trial court found there was no “egregious misconduct” by the Los Angeles prosecutors in the first place. Specifically, the court found that “it wasn't this D.A.'s office that committed this egregious misconduct,” and that the Los Angeles prosecutor was not made aware of the objections that had been made in Orange County after the seizure, and so had no obligation “three or four years after the fact to then bring to the court's attention the fact that there might be some privileged material.” Substantial evidence supported the trial court's findings.
It was undisputed that the Los Angeles District Attorney had nothing to do with the search of [Petitioner's] home. There was no evidence that prosecutors Jackson or Dixon relied on any privileged materials to make any decision in the trial of the case (and there was evidence otherwise, in the form of Mr. Jackson's declaration). Mr. Jackson also told the court at a hearing: “I looked at tons of stuff, and I don't remember looking at any attorney/client privilege stuff until [defense counsel] gave it to me. And it's only the items she's given to me. I have not gone back and filtered through 60-odd boxes or 40-odd boxes of stuff to look for other things.”
The trial court later reviewed the privileged material the special master had segregated, and reiterated its earlier finding of no egregious misconduct by the prosecutors. Still later, the court repeated that once the case came to Los Angeles, there had been no misconduct on the part of the Los Angeles District Attorney's office. [Petitioner] identified no privileged document relied on by the prosecutors to his prejudice (or at all), either at trial or on appeal.
[Petitioner] is left to argue that the prosecutor may be taxed, for purposes of a claim of outrageous governmental misconduct, with actions taken or not taken by the Orange County prosecutor's office. There is no pertinent authority for that notion, and we reject it. [Petitioner] cites Brady and its progeny for the principle that the prosecutor is responsible for disclosing evidence favorable to the defense, and that duty includes the “duty to learn of any favorable evidence known to the others acting on the government's behalf in the case.” (Kyles v. Whitley (1995) 514 U.S. 419, 437; In re Brown (1998) 17 Cal.4th 873, 879 (Brown) [courts have focused on the “‘“‘prosecution team,'''''' and “any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution”].)
But the legal authorities on outrageous government misconduct do not employ the “prosecution team” principle, nor is there reason to do so. A Brady violation can be remedied only by providing the defense with the exculpatory material. Without the “prosecution team” principle, the prosecutor could “‘“avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while
utilizing his access to it in preparing his case for trial,” [citation].' [Citations.]” (Brown, supra, 17 Cal.4th at p. 879.)
That principle has no logical application in the context of an outrageous misconduct claim. Case authority likewise supports the conclusion that a prosecutor is not chargeable with the outrageous misconduct of another agency. (See People v. Shrier (2010) 190 Cal.App.4th 400, 405, 417 (Shrier) [dismissal was too drastic a remedy where law enforcement agents intentionally eavesdropped on attorneyclient privileged communications; “[e]xclusion of overheard communications and any derivative evidence flowing therefrom” was the appropriate remedy; the prosecutor “was unaware of the eavesdropping plan”]; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 432 (Boulas) [“There is no suggestion in [Morrison, supra, 449 U.S. 361] that the prosecutor's office participated in the decision of the police officers to speak with the defendant outside of the presence of her attorney. In contrast, the record before this court contains substantial evidence of such participation on the part of a deputy district attorney.”].)
[Petitioner] points out that the detective who headed the search team in Orange County was a member of the Los Angeles Sheriff's Department, and he “led the charge that resulted in the wholesale seizure” of attorneyclient privileged documents. But the trial court expressly found the search warrant was properly executed. And while [Petitioner] broadly claims the prosecutor's “seizure, retention and review of the privileged material” requires dismissal, he presents no argument supported by legal authorities for the proposition that the warrant was improperly executed in the first instance.
Even if we were to hold the Los Angeles prosecutors responsible for all that went before, it would avail [Petitioner] nothing. “[A] showing of prejudice to [Petitioner's] right to a fair trial [is] required” to sustain a due process claim of outrageous government conduct requiring dismissal. (Uribe, supra, 199 Cal.App.4th at p. 861.) [Petitioner] cites several California cases where dismissal of charges was upheld or required based on flagrant interference in defendant's attorney-client relationship. But in all of them, not only was the prosecutor complicit in an intentional interference between attorney and client, but prejudice appeared on the face of the matter.
Neither factor applies here. In Boulas, for example, law enforcement officers, with the tacit approval of the prosecutor, undermined the defendant's relationship with his attorney by telling the defendant that he had to fire his attorney and retain another attorney in order to secure a plea bargain. (Boulas, supra, 188 Cal.App.3d at p. 427.) “We find it to be beyond [peradventure] that the . . . course of conduct undertaken by law enforcement officials actively caused irremediable harm to Boulas's relationship with his attorney and was, therefore, improper.” (Id. at p. 433.) Boulas points out that the high court in Morrison, which found dismissal an improper remedy in that case, “did not rule out the possibility of ordering the dismissal of a case upon a proper showing of prejudice.” (Boulas, at p. 431.) But there was no such showing here.
[Petitioner] argues that prejudice may be presumed where the privileged documents to which the prosecutor has access “contain details of the [Petitioner's] trial strategy,” citing federal cases where government informants participated in attorney-client conferences and provided the
prosecution with confidential information about the defense's strategy or position. (E.g., United States v. Levy (3d Cir.1978) 577 F.2d 200, 208 (Levy) [actual disclosure of defense strategy occurred; “[w]here there is a knowing invasion of the attorney-client relationship and where confidential information is disclosed to the government, we think that there are overwhelming considerations militating against a standard which tests the sixth amendment violation by weighing how prejudicial to the defense the disclosure is”].)
The federal cases do not assist [Petitioner]. First, we need not follow federal authorities other than the high court.[FN9] Second, in this case the trial court did not find any deliberate intrusion or “knowing invasion” by the Los Angeles prosecutor in the attorney-client relationship, instead finding “they did not obtain any new information from their accidental review of the privileged material.” Third, [Petitioner] fails to identify in his opening brief any defense “strategy or position” that was revealed in the privileged documents. By contrast, in Levy the court specifically identified the defense strategy learned by the prosecutor.[FN10]
[FN9] In any event, those authorities are split on the question whether a deliberate attempt by the government to obtain defense strategy information or to otherwise interfere with the attorneydefendant relationship through the use of an undercover agent constitutes a per se violation of the Sixth Amendment. (See United States v. Danielson (9th Cir. 2003) 325 F.3d 1054, 1070-1071, discussing cases; see also United States v. Glover (9th Cir. 1979) 596 F.2d 857, 863-864 & fn. 10 [government agent's “attempt to interfere with the attorney-client relationship, as reprehensible as it was,” did not amount to a constitutional violation of the right to counsel; “the
existence or nonexistence of prejudicial evidence derived from an alleged interference with the attorney-client relationship is relevant in determining if the defendant has been denied the right to counsel”].)[FN10] In Levy, the government learned that the defense intended to dispute the credibility of the government's key witnesses, and “thereby necessarily became privy to the fact that this was the only likely defense strategy that the prosecution had to anticipate.” (Levy, supra, 577 F.2d at p. 208.) The government witnesses were two black men who claimed to be present at a private club where drug transactions took place, and “[t]he defense strategy obviously would be to discredit the black witnesses by attempting to establish that blacks were never admitted to that private club. The government's knowledge of this planned strategy would permit it not only to anticipate and counter such an attack on its witnesses' credibility, but also to select jurors who would be more receptive to the testimony of black witnesses against white ethnic defendants.” (Ibid.)
Here, instead of pointing to any defense trial strategy or tactics that were revealed in the privileged materials, [Petitioner] argues the trial court's remedy-the order not to use privileged information at trial-was “impossible to enforce,” and it was “unrealistic to believe” the prosecutors did not use privileged information to their advantage. [Petitioner] points to “between 150 and 200 pages” of privileged documents relating to [Petitioner's] federal criminal case (not to the murders). That case involved alleged bankruptcy fraud, and at the murder trial, the prosecutors called witnesses who testified, as mentioned previously, about transactions undertaken to move [Petitioner's] business assets without paying the creditors, the transfer of assets to [Petitioner's] wife, and so on. [Petitioner]
cites the testimony of these witnesses as showing “at least one critical instance of actual prejudice,” claiming the prosecutors used the privileged communications that pertained to the federal criminal proceedings “in formulating the prosecution's case for motive,” and “chang[ed] theories of the case based upon the content of [Petitioner's] privileged documents.” (The Orange County prosecutors charged [Petitioner] with conspiracy and murder for financial gain, and [Petitioner] claims, without citing to any particular documents, that his communications with his lawyer exposed the fallacy in the notion that defendant stood to gain financially from Mr. Thompson's death.)
But this is pure speculation. Defense counsel admitted below that “I can't say whether [the prosecutors] read these documents and therefore changed their mind. I can't say if they just are a little bit more on the ball than the district attorneys in Orange County. I can say that the appearance of impropriety is large.” Speculation, without reference to any supporting evidence, does not suffice, and it seems obvious the question of financial gain or its absence could be investigated and determined without regard to privileged communications. [Petitioner] points to nothing to show the prosecutors used any privileged document, or evidence derived from a privileged document, and the prosecutor avers none of the documents were used to make any prosecutorial decision. As for the financial witnesses, they were intimately involved in the bankruptcy litigation, thus accounting for their trial testimony. There was no showing they were privy to any privileged documents, and defendant does not attempt to trace any testimony to a privileged source. Dismissal cannot be based on unsupported speculation.
[Petitioner] also cites Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow). There, the court held: “Where a prosecutor orchestrates courtroom eavesdropping on a privileged attorney-client communication and the witnesses thereto invoke the privilege against selfincrimination, the prosecution may not successfully oppose a motion to dismiss on the ground that no prejudice has been shown.” (Id. at p. 1258.) In those circumstances, “the court's conscience is shocked and dismissal is the appropriate remedy. Even when the issue is narrowed to a Sixth Amendment violation, dismissal is still appropriate because here there is a ‘substantial threat of demonstrable prejudice' as a matter of law.” (Id. at p. 1251, citing Morrison, supra, 449 U.S. at p. 365.) This case bears no comparison to Morrow; here, the prosecutor engaged in no misconduct, and indeed demonstrated to the satisfaction of the trial court that nothing in the privileged materials was or would be used to the prejudice of [Petitioner]. (See Shrier, supra, 190 Cal.App.4th at pp. 405, 417 [exclusion of overheard communications and any derivative evidence was the appropriate remedy for eavesdropping on attorney-client communications where prosecutor was unaware of the eavesdropping plan].)
In sum, substantial evidence supported the trial court's conclusion that the prosecutors here engaged in no misconduct, and that in any event their review of attorney-client privileged material did not result in the prejudice to [Petitioner] that is necessary to justify the sanction of dismissal. Our independent review of the record confirms the absence of any “outrageous conduct in the constitutional sense of violating [Petitioner's] due process rights ....” (Uribe, supra, 199 Cal.App.4th at p. 858.) And there was no showing of any use of privileged documents or information derived from them by the prosecutors in trying the case. In
short, the required showing of prejudice to [Petitioner's] right to a fair trial was absent and precluded dismissal. (Id. at p. 861.) As the high court said in Morrison, “[c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests,” and “[o]ur approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.” (Morrison, supra, 449 U.S. at pp. 364, 365.) That is exactly what the trial court did here.(Dkt. No. 103, Lodgment 8 at 38-45 (footnote omitted)).
The California Court of Appeal also determined that the trial court did not err in refusing to recuse the Los Angeles County District Attorney's office or remove prosecutors Jackson and Dixon because Petitioner failed to establish that the prosecution had a conflict of interest that interfered with Petitioner's right to a fair trial:
Here, the trial court repeatedly found that no conflict existed. In June 2005: “The only thing I can say is that the People are in possession of privileged material, that ... they agreed not to use that material in any way and not to use any evidence obtained as a result of that material in the trial,” and “there is no showing that the [Petitioner] would receive anything other than a fair trial based on the possession of this information.” In February 2006: “But I am convinced of what I said a month ago. I don't believe this is a [section] 1424 situation.” In March 2006: “This is not a [section] 1424 situation in my opinion and I think I have been consistent in saying that.”
[Petitioner] fails entirely to identify any conflict of interest, merely repeating his claim that the “prosecution team intentionally and illegally invaded the defense team” by seizing and reviewing privileged communications and “us[ing] them to form their theories of the case.” First, as we have seen, that is not a proper characterization of the prosecutor's conduct; the prosecutor saw privileged communications, but his conduct was not intentional, and he did not “use them to form [the prosecution's] theories of the case.” As the Supreme Court has said, “[t]he trial court was entitled to credit [the prosecutor], and his statements constitute substantial evidence.” (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 730 (Hollywood).) Second, [Petitioner] showed no conflict of interest-no “‘reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.' [Citation.]” (Eubanks, supra, 14 Cal.4th at p. 594.)
Vasquez explains the point: public prosecutors “are required to exercise their discretionary functions “‘“with the highest degree of integrity and impartiality.”' [Citation.] Impartiality, in this context, means . . . that the prosecutor is ‘expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual.' [Citation.]” (Vasquez, supra, 39 Cal.4th at p. 55 [because of a close family relationship between longtime employees of the prosecutor's office and the defendant, there was a “‘reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner''']; see also Hollywood, supra, 43 Cal.4th at p. 731 [trial court did not abuse its discretion in finding no cognizable conflict of interest under section 1424, where prosecutor disclosed case files to filmmaker and acted as a consultant on a movie about the defendant's life
and alleged crimes; “[w]hile in the abstract it is conceivable a fear of criminal sanctions might alter how [the prosecutor] handled this case, the trial court found [the prosecutor] credible and concluded the possibility that confidential documents might have been disclosed inadvertently would not prevent [the prosecutor] from acting fairly toward [the defendant]”; that conclusion “does not appear arbitrary or capricious and is supported by substantial evidence”].)
[Petitioner] cannot explain how the prosecutor's exposure to privileged materials created a conflict of interest such that the prosecutor might not exercise his discretionary functions in an evenhanded manner. As Hollywood tells us, “section 1424 does not exist as a free-form vehicle through which to express judicial condemnation of distasteful, or even improper, prosecutorial actions. [S]ection 1424 offers no relief for actions simply because they appear, or are, improper. [Citations.] The Legislature has closely defined the limits of judicial authority to recuse prosecutors, and we must observe them .... A defendant must identify, and a court must find some conflict of interest that renders it unlikely the defendant will receive a fair trial.” (Hollywood, supra, 43 Cal.4th at p. 735, fn. omitted.) The trial court found none here, and we can find no abuse of its discretion in that finding.
[Petitioner] next argues that, apart from Penal Code section 1424, the court had inherent power under Code of Civil Procedure section 128, subdivision (a)(4) to remove prosecutors Jackson and Dixon. Under that statute, every court has the power to “compel obedience to its judgments, orders, and process,” and to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected
with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(4) & (5).) But section 1424 now specifies the requirements for disqualification, and it was enacted in response to the case which established that section 128 gives the court power to remove a prosecutor. (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 269 [concluding, before the enactment of section 1424, that “a trial judge may exercise his power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary functions of his office”]; see Eubanks, supra, 14 Cal.4th at pp. 590-591 [section 1424 allows disqualification “only when a conflict ‘render[s] it unlikely that the defendant would receive a fair trial,' [citation] whereas Greer allowed disqualification even when the conflict might merely ‘appear to affect' the prosecutor's fairness”].) But the point is that “a conflict of interest which might prejudice [the prosecutor] against the accused” (Eubanks, at p. 591) is required for recusal, and there was no such conflict in this case.
Even in a case where the circumstances present a conflict of interest, the conflict would be disabling only if it makes it unlikely that [Petitioner] will receive fair treatment. (Eubanks, supra, 14 Cal.4th at p. 594.) That returns us to the point we have already decided in connection with [Petitioner's] claim the trial court should have dismissed the case for outrageous government misconduct: There was no showing of prejudice to [Petitioner's] right to a fair trial, so any conflict of interest that might be identified under section 1424 would not render it “‘unlikely that [Petitioner] will receive fair treatment.' [Citation.]” (Eubanks, at p. 594;
see also People v. Griffin (2004) 33 Cal.4th 536, 570, fn. 15 [“Because we conclude that the trial court did not err in denying defendant's motion for an order recusing the district attorney's office for a conflict of interest, we reject as well defendant's claim that the trial court's asserted error violated his rights under the United States Constitution, specifically ... the due process clause of the Fourteenth Amendment.”].) In short, there was no error in the court's refusal to recuse the prosecutors.
Finally, [Petitioner] makes one other point. He contends the right to counsel is violated when a state agent is present at attorney-client conferences, and that Detective Lillienfeld obtained privileged information by “using someone from the defense camp as a spy for several weeks,” and “knew Butch Jones was providing him information Mr. Jones had gleaned from his presence at attorney-client conferences.” In this argument, [Petitioner] fails to acknowledge that the court took testimony from [Petitioner's] then-lawyer (Jeffrey Benice), from Detective Lillienfeld, and from Mr. Jones, and found otherwise.
Specifically, the court found there was no “intentional act on the part of law enforcement to interfere with the attorney/client privilege or to obtain privileged material.” “There may have been some relationship that existed between Mr. Jones and Mr. Benice, but I can't say that Detective Lillienfeld attempted to intentionally obtain privileged information from that relationship by virtue of his contact with Mr. Jones.” Detective Lillienfeld testified that Mr. Jones told him on one occasion that [Petitioner] was going to meet with Mr. Benice on defense strategy, but he never indicated that he (Mr. Jones) attended any such meeting, and “the contents of that meeting” were never supplied to Detective Lillienfeld. Mr.
Jones also told the detective, who confirmed the information, that [Petitioner], not Mr. Benice, paid Mr. Jones, whose job was as a runner, a messenger, and a researcher for [Petitioner]. Mr. Benice testified that, at [Petitioner's] suggestion, he paid Mr. Jones once or twice to review and obtain documents from case files concerning Mickey Thompson's estate, but Mr. Jones did no substantive legal work for him, and he did not invite Mr. Jones into strategy meetings. And Mr. Jones testified that he never supplied Detective Lillienfeld with information he gleaned from meetings with [Petitioner] and Mr. Benice.
In short, substantial evidence supported the trial court's finding that there was no intentional interference with the attorney-client relationship through the use of Mr. Jones as an informer-in contrast to both cases defendant cites. (See Barber, supra, 24 Cal.3d at p. 755 [finding a violation of the right to counsel and prejudice from the violation; see fn. 8, ante] and Morrow, supra, 30 Cal.App.4th at p. 1258 [prosecutor orchestrated courtroom eavesdropping on attorney-client communication]; see also Weatherford v. Bursey (1977) 429 U.S. 545, 558 [“unless [undercover agent] communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation”; “[t]here being no tainted evidence . . ., no communication of defense strategy to the prosecution, and no purposeful intrusion by [undercover agent], there was no violation of the Sixth Amendment”].)
In the end, [Petitioner's] argument is that “the record cannot fully disclose the extent to which [prosecutorial] decisions were affected- whether consciously or subconsciously-by the privileged information they
reviewed,” and so there was structural error requiring reversal of the judgment. [Petitioner] made the same argument to the trial court: “Every decision that they're [(the prosecutors)] going to make cannot be said to now not be derived from the reading of those documents,” and “[t]here is simply no way for anyone to know what parts of the case that form Mr. Jackson's thoughts on prosecution were derived from these letters.” That is simply not the law.(Dkt. No. 103, Lodgment 8 at 46-50).
2. Federal Law and Analysis
The Supreme Court has suggested in dicta that outrageous government conduct may give rise to a due process defense. United States v. Russell, 411 U.S. 423, 431-32 (1973) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”). The Supreme Court, however, has never established the “precise contours” of what prosecutorial or law enforcement actions would be sufficiently outrageous to violate due process. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003); see also White v. Woodall, 572 U.S. 415, 424 (2014) (“[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.”) (internal quotation marks omitted). Because there is no clearly established precedent for a due process claim based on outrageous government conduct, the California courts' denial of the claim is not contrary to, or an unreasonable application of, clearly established law. See Carey v. Musladin, 549 U.S. 70, 74 (2006); see also Phuoc Tran v. Kernan, 2018 WL 3303277, at *9 (S.D. Cal. Jul. 5, 2018) (“[T]here is no clearly established Supreme Court law on an outrageous government conduct claim.”); Hunt v. Hedgpeth, 2014 WL 4793440, at *9 (C.D. Cal. Jul. 2, 2014) (“[T]he Supreme Court left open the question of whether outrageous law enforcement conduct can bar a conviction.”).
In contemplating a hypothetical case that would be sufficiently egregious, the Russell Court cited Rochin v. California, 342 U.S. 165, 172 (1952), a case in which law enforcement officials forcibly opened a suspect's mouth and later had the suspect's stomach pumped to extract drugs for a criminal prosecution. See Russell, 411 U.S. at 432. The factual circumstances in Petitioner's case are not remotely similar.
Further, even were the right clearly established by the Supreme Court, any violation of Petitioner's attorney-client privileges in this case would not meet the standard. The Ninth Circuit has found that outrageous government conduct “preclude[s] prosecution only when it is a violation of fundamental fairness, shocking to the universal sense of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986) (internal quotation marks omitted). This is “limited to extreme cases,” such as when government agents “direct[ ] a criminal enterprise from start to finish” or “use excessive physical or mental coercion to convince an individual to commit a crime.” United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013) (internal quotation marks omitted); see also United States v. Ramirez, 710 F.2d 535, 540-41 (9th Cir. 1983) (rejecting outrageous government conduct claim when “[t]he government did not create the crime”).
Here, the California courts determined that there was no deliberate intrusion by the Los Angeles County District Attorney's office into Petitioner's attorney-client relationship, instead finding the prosecutor accidentally reviewed some privileged material that had been forwarded from the Orange County District Attorney's office after a court determined that Orange County was not the proper venue for the charges. Such conduct, even if negligent, does not amount to outrageous government conduct. “Because the conduct must shock the conscience, however, outrageous government conduct is not to be equated with negligence or poor judgment.” United States v. Wiley, 794 F.2d 514, 515 (9th Cir. 1986); see also United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995) (“[A]llegedly poor police work hardly constitutes outrageous government conduct”). Accordingly, Petitioner has not demonstrated a due process violation based on outrageous government conduct.
Petitioner has cited no authority, nor is the Court aware of any authority, that the Los Angeles County prosecutor's office is accountable for the actions of the Orange County prosecutor's office, especially when it is undisputed that the Los Angeles County District Attorney's office had nothing to do with the search of Petitioner's home, where the privileged materials were first obtained. See also infra § VI.H.3.
Petitioner's contentions that the trial court erred in refusing to recuse the entire Los Angeles County District Attorney's office or, more specifically, the prosecutor who had reviewed the privileged attorney-client material is equally unavailing. First, to the extent that Petitioner is directly challenging the state court's determination that, in this instance, recusal of the prosecutor was not mandated under California Penal Code § 1424, Petitioner fails to raise a cognizable claim. “We have stated many times that federal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam) (internal quotation marks omitted); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.”). The interpretation and application California's recusal rules regarding prosecutors under California Penal Code § 1424 “is a question of state law alone.” DeVaughn v. McDonell, 2021 WL 4163580, at *33 (C.D. Cal. Apr. 27, 2021). Thus, Petitioner's claim is not cognizable on federal habeas review. See Andrews v. Lizarraga, 2020 WL 716750, at *8 (C.D. Cal. Jan. 8, 2020) (“Petitioner's argument that the trial court had abused its discretion under Cal. Penal Code § 1424 [is] a state law claim that is not cognizable on federal habeas review.”); Heath v. Spearman, 2017 WL 1745070, at *15 (C.D. Cal. Mar. 28, 2017) (rejecting petitioner's attempt to relitigate the trial court's denial of his § 1424 motion, because that question was a state law issue).
California Penal Code § 1424 states, in relevant part, that a motion to disqualify a district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” Cal. Penal Code § 1424(a)(1).
As for Petitioner's assertion that the failure to grant his recusal motion violated his due process rights by preventing him from receiving a fair trial, Petitioner fails to point to any Supreme Court precedent suggesting that recusal was constitutionally mandated in this instance. The California courts reasonably determined that, although the prosecutor viewed attorney-client protected material, there was no prejudice to Petitioner because the privileged material was not used at trial and did not impact the prosecution's theory of the case or Petitioner's ability to defend against the charges. Although Petitioner argues that the prosecutor's breach of the privilege created a potential conflict, “[t]he United States Supreme Court has not decided whether there is a general due process right to a conflict-free prosecutor.” Johnson v. Horel, 2010 WL 4722634, at *23 (N.D. Cal. Nov. 12, 2010). Moreover, the Supreme Court has never held that due process requires the recusal of a prosecutor-or, much less, the recusal of an entire district attorney's office-because attorney-client materials were inadvertently viewed and then subsequently excluded for use at trial. See, e.g., DeVaughn, 2021 WL 4163580, at *34 (“Petitioner cites nothing to show that recusal of the Riverside County District Attorney's Office was constitutionally mandated and that the trial court's failure to grant recusal under Section 1424 effected a federal constitutional violation.”); Yablonsky v. Montgomery, 2016 WL 807960, at *44 (C.D. Cal. Jan. 14, 2016) (rejecting claim because “petitioner has not identified, and the Court is not aware, of any clearly established Supreme Court precedent requiring recusal” of the prosecutor for alleged conflict of interest); Priutt v. Virga, 2014 WL 5320398, at *4 (C.D. Cal. Aug. 22, 2013) (finding “no clearly established Supreme Court precedent requiring recusal of an entire prosecutor's office” where there was a potential conflict because the victim became employed in the prosecutor's office after charges had been brought).
Finally, Petitioner has failed to demonstrate that the failure to recuse the Los Angeles County District Attorney's office or the individual prosecutor in this instance negatively affected his case. The improperly disclosed attorney-client material was excluded from trial and, other than pure speculation, Petitioner has not shown that the material had any impact on either the prosecution or the defense of Petitioner's case. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (finding error is harmless and cannot support habeas relief unless it had a substantial and injurious effect or influence in determining jury's verdict).
For all these reasons, the California Courts reasonably rejected Petitioner's claim in Ground One and, therefore, Petitioner is not entitled to habeas relief.
B. Insufficient Evidence
In Ground Two, Petitioner claims that there was insufficient evidence to convict him of murder because there was no “connection between the killers and Petitioner.” (Petition at 6-7). He argues that the “hostility between [him] and Mickey Thompson” was “not enough to prove” that he engaged in a conspiracy to kill him. (Id. at 7).
1. The California Court of Appeal Opinion
In denying Petitioner's claim, the California Court of Appeal found that there was sufficient evidence to prove beyond a reasonable doubt that Petitioner conspired to kill the Thompsons by means of lying-in-wait, as follows:
As a preliminary matter, we note [Petitioner's] claim there was “no corpus [delicti] to prove a conspiracy” is simply inapt. [Petitioner] was not charged with conspiracy. He was charged with murder. . . . [¶] Conspiracy
was merely one of the theories of liability by which the prosecution sought to establish that [Petitioner] was responsible for those crimes. There is no support in the authorities or in logic for the proposition that the corpus delicti rule may be applied to a theory of liability.
And so we turn to the substance of [Petitioner's] claim: whether there was insufficient evidence to prove beyond a reasonable doubt that [Petitioner] conspired to kill the Thompsons. A conspiracy is an agreement to commit the crime, and the essence of [Petitioner's] claim is that there was no evidence of any association with, or agreement with, the unknown killers to commit the murders-the sine qua non of conspiracy. He points out that a legal inference cannot flow from the nonexistence of a fact, and may not be based on suspicion or conjecture or guesswork. (People v. Stein (1979) 94 Cal.App.3d 235, 239.)
We do not agree there was no evidence of an agreement to murder the Thompsons. Certainly there was no direct evidence of [Petitioner's] association or agreement with the actual killers. But a conspiracy “‘may be proved by indirect evidence and inferences justified by the circumstances. [Citations.]' [Citations.]” (People v. Hardeman (1966) 244 Cal.App.2d 1, 41; People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 [“Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.'”].)
Here, the circumstances fully justified the inference that [Petitioner] conspired with the shooters. While [Petitioner] tells us what evidence was absent (such as evidence of payments to the shooters, telephone records, witnesses to [Petitioner] solicitation of the murders, meetings or talks with the shooters), he ignores the evidence that was adduced. The Thompsons were killed in a carefully planned operation for which there was no robbery or other motive. [Petitioner] was present in the neighborhood with binoculars and another person a few days before the murders. The shooters knew where and when to find the Thompsons, how to get to their house, and how best to escape the scene. [Petitioner] repeatedly threatened to kill Mickey Thompson and hurt his family and indeed made statements to two witnesses about the cost involved in having Mr. Thompson killed, and told others he was too smart to get caught. These facts were placed in evidence, and the jury could properly infer from them that [Petitioner] agreed with the shooters to commit the murders.
To this, [Petitioner's] answer is to characterize [Petitioner's] presence near the Thompson home as a “highly speculative ‘fact''' that was “not sufficient,” even if the Stevenses' eyewitness identifications were credible, which he claims they were not. Neither of these arguments assists [Petitioner]. He says his presence in the neighborhood shortly before the murders “is simply too tenuous and speculative” to support a finding of an agreement to commit murder. In the abstract and without any other evidence, [Petitioner] might be right-but there was other evidence (delineated in the preceding paragraph), and [Petitioner] ignores it. As the jury was instructed, properly, the “formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent . . ..”
At its core, [Petitioner's] argument is that the eyewitness testimony of Ronald and Tonyia Stevens is not substantial, credible evidence, and without it he cannot be connected to the murders. We disagree with [Petitioner's] premise.
[Petitioner] recites at length various inconsistencies between the Stevenses' testimony at trial and their testimony at the preliminary hearing and interviews with the police. (These inconsistencies include statements about the race of the passenger in the car with [Petitioner], how far away Mr. Stevens was when he saw [Petitioner], for how long and at what angle he saw [Petitioner], and so on.) [Petitioner] challenges the photographic and live lineup procedures as “suggestive and unreliable.” He points out that in the photos, there was only one man “that had any sort of pock marks.” He says Mr. Stevens admitted on cross-examination that he had pointed to three different photos, saying “this type of nose” and “that type of hair” and “this type of complexion,” and that Detective Lillienfeld posed the question, “Yeah, but the guy you saw in the wagon that day that most resembles who in this photo array now?” rather than admonishing Mr. Stevens that the suspect might or might not be in the photo array.
Mr. Stevens viewed a live lineup five months later, where [Petitioner] was the only person whose photo was also in the photographic lineup, and the only person with pock-marked skin. (Tonyia Stevens also viewed that lineup, separately, and identified [Petitioner]. She had seen [Petitioner] on a newscast (footage of four to six men walking out of a courtroom, with no mention of [Petitioner's] name) and recognized him as the person she saw in the car before the murders; at the time, she told her husband she was sure he would remember him too.) [Petitioner] also cites
numerous cases and studies discussing the unreliability of eyewitness identifications and suggested reforms in identification procedures. And he cites the many other factors that reduce the reliability of identifications: lapse of time (13 years), limited opportunity to observe, intervening influences affecting memory (such as reenactments of the crime on television), and so on.
Nonetheless, Mr. and Ms. Stevens did in fact testify that it was [Petitioner] they saw with binoculars in an old station wagon with Arizona license plates parked near their home a few days before the murders. And Kathy Weese offered some corroboration when she testified that while she was working for [Petitioner's] company, on one occasion she saw an older station wagon with out-of-state plates in the parking lot; it had never been there before and she never saw it again. The jury heard all this evidence, including all the inconsistencies [Petitioner] cites, and also heard testimony from [Petitioner's] expert witness on eyewitness identifications, explaining all the factors supporting the unreliability of identifications made under the circumstances existing in this case. The jury also heard [Petitioner's] arguments about the unreliability of the Stevenses' identifications. It was for them to decide whether or not they believed the Stevenses' testimony.
In his reply brief, [Petitioner] contends the issue is “not about reassessing witness credibility,” but about the “inherent unreliability of eyewitness identifications obtained under circumstances that corrupt human memory,” as shown in the studies he cites (studies not presented to the trial court). But we are bound by the law as stated by the Supreme Court, and that court has expressly rejected claims that eyewitness testimony was unreliable “because the witnesses' initial descriptions of the perpetrator
were inconsistent and because the identification testimony was tainted by suggestive lineups and photo arrays, and by the passage of time.” (Elliott, supra, 53 Cal.4th at p. 585 [“Inconsistencies in [the witnesses'] initial descriptions of the perpetrator and any suggestiveness in the lineups or photo arrays they were shown are matters affecting the witnesses' credibility, which is for the jury to resolve.”]; see also In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 [“when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court”].) In short, we necessarily decline [Petitioner's] invitation to hold as a matter of law that the Stevenses' identifications were unreliable.
In sum, though the jury could have disbelieved the Stevenses' testimony, for all the reasons [Petitioner] presented to it, the jury chose to believe them. Their testimony constitutes substantial evidence, and it was not the only evidence connecting [Petitioner] to the crime, as we have already pointed out; there was evidence of a carefully planned and coordinated execution and escape that required research and reconnaissance, [Petitioner's] repeated statements of intent to kill Mickey Thompson and hurt his family, and statements about the cost of having Mr. Thompson killed. From all this evidence, the jury could reasonably infer an agreement by [Petitioner] with the shooters to commit the murders.(Dkt. No. 103, Lodgment 8 at 52-55 (footnote omitted and internal page references omitted)).
2. Federal Law and Analysis
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). To review the sufficiency of the evidence in a habeas corpus proceeding, the Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam) (“[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality.”). “[A] reviewing court must consider all of the evidence admitted by the trial court, regardless whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per curiam) (internal quotation marks and citation omitted). All evidence must be considered in the light most favorable to the prosecution. Lewis v. Jeffers, 497 U.S. 764, 782 (1990); Jackson, 443 U.S. at 319. If the facts support conflicting inferences, reviewing courts “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326; accord Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam) (“[I]t it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”). Thus, “[a] due process claim based on insufficiency of the evidence can only succeed when, viewing all the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Emery v. Clark, 643 F.3d 1210, 1213 (9th Cir. 2011).
Furthermore, under AEDPA, federal courts must “apply the standards of [Jackson] with an additional layer of deference.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005); accord Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011). The federal courts “ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.” Emery, 643 F.3d at 1213-14. “[I]t is not enough if [a federal court] conclude[s] that [it] would have found the evidence insufficient or that [it] thinks the state court made a mistake.” Boyer, 659 F.3d at 964-65. Instead, a federal court “must conclude that the state court's determination that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively unreasonable.” Id. at 965. These standards are applied to the substantive elements of the criminal offense under state law. Jackson, 443 U.S. at 324 n.16; Boyer, 659 F.3d at 964; see also Johnson, 566 U.S. at 655 (“Under Jackson, federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.”) (internal quotation marks and citation omitted).
Under California law, “[a] killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder.” People v. Elmore, 59 Cal.4th 121, 133 (2014) (citation omitted). Petitioner does not dispute that the Thompson killings were performed willfully, deliberately, and with premeditation. Instead, he contends the evidence is insufficient to prove his liability. (Petition at 6-7). However, “[i]t is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator.” People v. Williams, 61 Cal.4th 1244, 1269 (2015) (citation omitted). “A criminal conspiracy exists where it is established that there was an unlawful agreement to commit a crime between two or more people, and an overt act in furtherance of the agreement.” People v. Gonzalez, 116 Cal.App.4th 1405, 1417 (2004), disapproved of on other grounds by People v. Arias, 45 Cal.4th 169 (2008) (citation omitted).
Here, Petitioner's argument that the jury could not have reasonably concluded that Petitioner conspired with the unidentified shooters because of a lack of direct evidence of any agreement to kill the Thompsons is clearly meritless. “Circumstantial evidence can suffice to prove a conspiracy.” United States v. Mendoza, 25 F.4th 730, 736 (9th Cir. 2022); see People v. Rodrigues, 8 Cal.4th 1060, 1135 (1994), as modified on denial of reh'g (Feb. 16, 1995) (“Evidence is sufficient to prove a conspiracy to commit a crime if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.”) (citation omitted); People v. Vu, 143 Cal.App.4th 1009, 1025 (2006) (“To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.”) (citation omitted). Moreover, on federal habeas review, the Court need not determine that the verdict reached by the jury was compelled by the evidence, only that the evidence was adequate to support such a conclusion by a rational trier of fact. See Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000) (explaining that under the Constitution the evidence may be sufficient to support a jury's finding even if it “does not compel” that finding). Considering the entirety of the evidence presented, the Court agrees there was sufficient evidence from which the jury could reasonably infer beyond a reasonable doubt that Petitioner conspired to have the Thompsons killed.
First, Petitioner had a strong motive to kill Mickey Thompson given their personal history and Petitioner's repeated threats to kill Thompson. See People v. Smith, 37 Cal.4th 733, 740-41 (2005) (while motive is not an element of the crime of murder, “evidence of motive is often probative of intent to kill”). Numerous witnesses testified that Petitioner openly expressed his hatred of Petitioner and his desire to kill him.
• In 1988, Petitioner said to William Wilson, “Fucking Thompson is killing me. He's taking everything I've got. He's destroying me. I'm going to take him out.” (6 RT at 2802-03). When Wilson replied, “Nobody wins that one. Mickey's dead and you're in prison,” Petitioner responded, “Oh no . . . I'm too smart for that. They'll never catch me.” (6 RT at 2802-04). Wilson's wife overheard the conversation and corroborated her husband's account of Petitioner's threats. (6 RT at 2825).
• In 1987, Scott Hernandez heard Petitioner speaking with his attorneys on the telephone about the Thompson case and heard him say in a rage, “I'll kill that mother fucker. I'll kill that mother fucker.” (11 RT at 4270-71).
• In 1986, Kathy Weese heard Petitioner arguing with Thompson and say, “I'm going to take you out” and “It would cost me $500 and a motor vehicle to have you taken out and I will take you out.” (11 RT at 4316).
• In 1984, Barron Wehinger heard Petitioner say, “I'll kill [Thompson]” if Petitioner “lost his power to run the Superbowl of motocross, his million-dollar-a-year income.” (8 RT at 3434). Petitioner said, “I can get it done for 50 grand.” (8 RT at 3435).
• In 1987, Petitioner told Penn Weldon that he had been “fucked royally” by Thompson in a lawsuit. He said Thompson “cost him a considerable amount of money” and Petitioner “wanted to get even with him.” (7 RT at 3102-03).
Weldon did not think Petitioner was kidding when he spoke about Thompson. (7 RT at 3106).
• In the months before the murders, Karen Dragutin heard Petitioner talking about his lawsuit with Thompson. Petitioner said that the “only way to get out of the mess” was “if Mickey Thompson died.” (6 RT at 2838-40).
• Two or three months before the murders, Gregory Keay heard Petitioner say that Thompson “was out to get all of his money and before that would happen, he would have him wasted.” (7 RT at 3148-49).
• In 1987, Dale Newman heard Petitioner discussing a legal matter and say in a threatening tone “that nothing bad was going to happen because he was going to take care of the party involved.” (10 RT at 3978-79).
• In late 1987 or early 1988, John Williams, a deputy marshal, went to Petitioner's residence to levy Petitioner's Mercedes in connection with the litigation involving Thompson. After Williams told Petitioner he had a court order to take the car, Petitioner said, “Mickey Thompson is fucking dead. He doesn't know who he's fucking with.” (10 RT at 4002-03).
• In late 1987 or early 1988, Joel Weissler heard Petitioner shouting on the telephone with Thompson. Petitioner said in a threatening tone, “You will never see a cent of it. I'm going to hurt you and your family.” Weissler heard Petitioner make similar statements to Thompson about a month later. (19 RT at 6959-61).
Second, despite Petitioner's argument that evidence of his hostility toward Thompson was not enough to prove he had him killed, there was other incriminating evidence linking Petitioner to the planning of the murder itself. Petitioner was seen sitting in a car, an older model station wagon with Arizona plates, using binoculars along with another man in the Thompsons' gated neighborhood only “four or five” days before the murders. (11 RT at 4379-83, 4387-89; 12 RT at 4564-66). Both Ronald and Tonyia Stevens identified Petitioner as the person they saw with binoculars in the car. (11 RT at 4395, 4403; 12 RT at 4570). Further, a car matching that description was seen by an employee of Petitioner's company in the company parking lot. (11 RT at 4323). This evidence, coupled with the facts that suggested the murders and escape plan were preplanned and that the murderers did not attempt to steal anything from the victims, allowed the jury to reasonably infer that Petitioner hired the unidentified assailants to kill the Thompsons because of Petitioner's business failings, which he blamed on Mickey Thompson. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992) (“[C]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction”); see also Cooper v. Woodford, 498 Fed.Appx. 734, 735 (9th Cir. 2012) (finding “[s]ufficient circumstantial evidence” to support murder conviction under Jackson where defendant had motive to kill victim and was seen participating in the victim's abduction).
Petitioner contends that the Stevenses' identification of him was unreliable. (See generally Dkt. No. 103, Lodgment 5 at 114-38, Lodgment 7 at 56-69, Lodgment 11 at 3956.) But both Ronald and Tonyia Stevens each testified at trial that they got a good look at Petitioner and unequivocally identified Petitioner as the person they saw sitting in the driver's seat with binoculars in the Thompsons' neighborhood a few days before the murders. (11 RT at 4391, 4395, 4405; 12 RT at 4512, 4570, 4584-86.) The jury heard testimony as to the potential suggestiveness of the identifications. (12 RT 4572-77, 458182.) Defense counsel extensively cross-examined the Stevenses at trial. (12 RT 4512-47, 4559-61, 4586-4610.) Petitioner also presented the testimony of an expert, who described factors that could influence the accuracy of eyewitness identifications, including the 13-year delay between seeing an individual and identifying him, suggestive lineups, and the relationship between the accuracy of an identification and the confidence of the witness in making it. (22 RT 8104-39, 8182-85, 8196-99.) As the California Court of Appeal noted (Dkt. No. 103, Lodgment 8 at 55), it was up to the jury to evaluate the credibility and reliability of the Stevenses' identifications. See Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (“The reviewing court must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict.”). The jury was instructed pursuant to CALJIC No. 2.20 of the factors they could consider in determining the believability of witness and pursuant to CALJIC No. 2.92 of the factors they could consider in proving identity by eyewitness testimony. (7 CT 1969, 1986). Absent a contrary showing, which is not present here, “[a] jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Viewing the evidence in a light most favorable to the prosecution and applying the additional layer of AEDPA deference to the state court's conclusion as is required, the Court finds there was sufficient evidence to support Petitioner's murder conviction. Because the state court reasonably rejected Petitioner's claim of insufficient evidence, Ground Two should be denied.
C. Violation of Due Process from Trial Delay
In Ground Three, Petitioner asserts that the “unjustified delay of sixteen years in prosecuting” him violated his due process rights. (Petition at 7). He argues that during this time “irreplaceable exculpatory evidence was lost,” which prejudiced the outcome of his case. (Id.).
1. The California Court of Appeal Opinion
The California Court of Appeal noted that Petitioner was arrested in December 2001, for murders that occurred 13 years earlier. (Dkt. No. 103, Lodgment 8 at 56). Prior to trial, Petitioner filed a motion to dismiss based on the lengthy delay, asking the trial court to defer ruling on the motion until the completion of the trial. (Id.) After trial, the trial court denied the motion, finding that it was not clear that “any of the evidence that was not presented because of the delay would have been beneficial to [Petitioner],” but that there clearly was a “legitimate reason for the delay.” (Id. at 60).
The California Court of Appeal analyzed the trial court's ruling and found Petitioner suffered “some prejudice” from loss of material witnesses, loss of documentary evidence, and witnesses' failing memories but that, “on the whole,” it was “minimal.” (Id. at 61). After an extensive recounting and examination of any alleged prejudice to Petitioner, the state appellate court stated:
The Court has not included the state appellate court's detailed analysis regarding each evidentiary claim of prejudice herein. (See Dkt. No. 103, Lodgment 8 at 61-73).
In sum, ... we cannot characterize the loss of witnesses, and the loss of evidence due to fading memory, in this case as more than minimally prejudicial to the defense. Almost all of the lost evidence or testimony [Petitioner] cites demonstrates only the potential for prejudice, rather than actual prejudice, and the trial court correctly concluded that it would be improper simply to assume the cited evidence would have been favorable to [Petitioner].(Id. at 73).
On the other hand, the state appellate court found the justification for the delay in prosecution to be strong:
The prosecutor's justification for the delay, certainly in the abstract, is strong. The state did not amass the necessary evidence for a successful prosecution until 2001, when the police learned that Ronald and Tonyia Stevens had seen [Petitioner] in the neighborhood with binoculars a few days before the murders. ...
Here, the trial court concluded that it could not “fault anyone for the fact that it took so long to actually get enough evidence to file the case.” [Petitioner] contends otherwise, saying that the prosecution had “constructive knowledge” of the Stevenses' information in 1988. This is because the Stevenses called the police several times, telling them they had possible information about the murders. Specifically:
On the day the Stevenses saw the car parked outside their home, Tonyia Stevens called the Temple City Sheriff's Department and reported a suspicious looking car, telling the police “‘I just want you to know in case anything happens that we have information.''' A couple of weeks after the murders, a uniformed policeman at a roadblock stopped Tonyia Stevens and asked her if she had any information. She testified: “And I said, ‘yes, I do' and I told him. He says, ‘Have you told the police?' and I said, ‘Yes.' He says ‘Okay, go on then.''' Ronald Stevens said he tried to report the incident to the police, “either three or four times, not long after the murder.” After talking to a friend, he called the Duarte Sheriff's Department, at about 9:00
p.m., and told the person who answered the phone that he thought he had some information on the Thompson murder. Mr. Stevens was told a detective would call him, but no one did. A couple of weeks later, Mr. Stevens called the Temple City Sheriff's Department “and left another message. Same thing.” In addition, Mr. Stevens said: “I think there was one or two other times that I called because I just, you know, tried to call someone. But I don't remember the dates or times.”
Despite these efforts by the Stevenses in 1988 to report their information, no investigator contacted Mr. Stevens about the incident until 2001. ... [¶] We do not know how or why the Stevenses messages to the police went astray, but they did. This is certainly not “malfeasance.” It was an error, but we cannot necessarily characterize it as negligence. This was not a situation where the investigators received information that the Stevenses saw [Petitioner] at the scene, or had the license plate number of a suspicious vehicle, and then failed to follow up. Instead, unidentified police personnel apparently did not pass on telephone messages about information possibly relating to the murders. In a more perfect world, the investigators would have had the information sooner, but in fact they did not. So in the absence of a showing of prejudice considerably more significant than we have seen, the justification for the delay in prosecution-that the police did not have sufficient evidence to prosecute defendant until 2001-plainly outweighs the prejudice.(Id. at 73-75).
The California Court of Appeal ultimately concluded that the 13-year delay in prosecution did not violate Petitioner's due process rights:
While most of [Petitioner's] claimed losses of evidence are speculative, we cannot definitively say that the passage of time resulted in no prejudice to defendant. But “[t]o avoid murder charges due to delay, the defendant must affirmatively show prejudice.” (Nelson, supra, 43 Cal.4th at p. 1250.) [Petitioner's] affirmative showing of prejudice was minimal. And we can definitively say-despite [Petitioner's] claims the delay in prosecution was “intentional” and “the real purpose .. .was to weaken [Petitioner's] ability to defend himself”-that there is not the slightest evidence of a deliberate delay to gain a tactical advantage. .
There is no doubt that 13 years is a long prearrest delay, but it was not a purposeful one. The bottom line is that the prosecutors concluded they did not have enough evidence to convict [Petitioner] until 2001. This is a strong justification for the prearrest delay. Errors in an investigation do not always amount to negligence, and they did not here.(Dkt. No. 103, Lodgment 8 at 77).
2. Federal Law and Analysis
The Sixth Amendment speedy trial guarantee does not apply to pre-charging delay claims. United States v. Marion, 404 U.S. 307, 320-21 (1971). The Due Process Clause, however, provides some protection against undue delay between the commission of an offense and the initiation of a prosecution. See United States v. Lovasco, 431 U.S. 783, 788-89 (1977) (noting that the “Due Process Clause has a limited role to play in protecting against oppressive delay”); see also Betterman v. Montana, 578 U.S. 437, 441 (2016) (“[B]efore arrest or indictment, when the suspect remains at liberty-statutes of limitations provide the primary protection against delay, with the Due Process Clause as a safeguard against fundamentally unfair prosecutorial conduct.”).
The Due Process Clause may be violated if the pre-charging “delay undertaken by the Government [is] solely to gain tactical advantage over the accused” or a “reckless disregard of circumstances,” but “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” Lovasco, 431 U.S. at 795 & n.17, 796 (internal quotation marks omitted). Thus, while the Supreme Court has not delineated the exact nature of a due process violation for pre-charging delay, it has made “clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Id. at 790. Nevertheless, “[t]he relevant Supreme Court precedents explicitly decline to set out a clear test for balancing justification against prejudice, asserting that such balancing requires case-by-case consideration.” New v. Uribe, 532 Fed.Appx. 743, 744 (9th Cir. 2013) (unpublished).
Here, the California Court of Appeal painstakingly went through Petitioner's claims of prejudice from the delay in prosecution and, in each instance, found any purported detriment to Petitioner's defense to be speculative or, even if provable, to be minimally helpful. For example, he argues that he was unable to collect evidence to prove that the car with the Arizona license plate number seen in the Thompsons' neighborhood before the murder was not connected to him. (Dkt. No. 103, Lodgment 8 at 61). On its face, however, his claim that such exonerating evidence ever existed is speculative. Similarly, Petitioner claims that Allison Triarsi's diary, in which she wrote down her recollections of the shooting, could not be found by the time of trial and would have aided his defense by showing her description of the shooters changed over time. (Dkt. No. 103, Lodgment 8 at 65). Again, the purported prejudice is entirely speculative as Petitioner only postulates what was in the diary and, in any event, was hardly crucial to Petitioner's defense as he was not accused of being one of the actual shooters.
The Court notes that, in his federal Petition, Petitioner has not suggested any new arguments as to possible prejudice from the delay and has not offered any evidence in support of his conclusory claim that “irreplaceable exculpatory evidence was lost.” (Petition at 7).
Petitioner also makes several general assertions of prejudice; that the loss of telephone records, attorney records, and locksmith records would have contradicted some of the prosecution's witnesses' recollection of events; that the loss of “hypothetical testimony” from witnesses who were dead or otherwise unavailable at trial undermined his defense; and that memory loss from witnesses harmed his case. (Dkt. No. 103, Lodgment 8 at 62-65, 67-73). “Generalized assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual prejudice.” United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995). Thus, the California Court of Appeal reasonably determined that the lost testimony, witnesses, and evidence did not meaningfully impair Petitioner's ability to defend himself. See United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (establishing prejudice from pre-charging delay is a “heavy burden that is rarely met”).
Finally, despite Petitioner's arguments to the contrary, there is absolutely no evidence that the prosecutors in this case intentionally delayed the prosecution to gain some tactical advantage or to harass Petitioner. Cf. Marion, 404 U.S. at 324 (“[T]he [Due Process Clause] would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.”). Rather, as the state court determined, the delay was because the prosecutors believed there was not enough evidence for a successful prosecution of Petitioner until 2001, when Ronald and Tonyia Stevens identified Petitioner as the person they saw in the neighborhood with binoculars a few days before the murders. The Supreme Court has made clear that prosecuting a defendant following a legitimate investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the delay. Lovasco, 431 U.S. at 796.
Given the undisputed evidence of investigative delay, the lack of evidence of purposeful or tactical delay, and lack of evidence of actual prejudice, Petitioner has not established a violation of the Due Process Clause from the 13-year delay in charging him with murder. See Shammam v. Paramo, 664 Fed.Appx. 629, 632 (9th Cir. 2016) (finding no due process violation resulting from a 14-year delay between murder and indictment where the delay was the result of an open investigation even though the delay caused “some prejudice” consisting of faded memories); see also Corona-Verbera, 509 F.3d at 1112 (requiring a defendant prosecuting a pre-indictment claim to establish “actual, nonp-speculative prejudice from the delay”). Accordingly, the state court reasonably rejected Petitioner's claim and, thus, Ground Three should be denied.
D. Pitchess Proceedings
In Ground Four, Petitioner asks the Court to “independently review the sealed records of Officer Grigg's personnel records” to determine if there are any “discoverable materials” that should have been given to the defense before trial. (Petition at 7).
1. The California Court of Appeal Opinion
Before trial, Petitioner filed several motions pursuant to Pitchess v. Superior Court, 11 Cal.3d 531 (1974), and Brady v. Maryland, 373 U.S. 83 (1963), for pretrial discovery of Officer Grigg's personnel records:
Here, the defense sought material from Detective Griggs's personnel files, particularly information relating to his disability retirement, psychiatric evaluations and the like, as well as any other exculpatory or impeaching material within the meaning of Brady. The defense theory was that Detective Griggs was incapable of conducting a fair, competent and unbiased investigation; that his deficient investigation ignored other viable leads and suspects, particularly Joey Hunter; that there were complaints from Collene Campbell about his job performance; that all this led to a stress-related early retirement, and the disability he claimed substantially affected his judgment and credibility. The defense sought personnel files from both the sheriff's department and LACERA for the retired detective.
We need not describe the multiple motions and arguments on the Pitchess and Brady theories relating to discovery of Detective Griggs's personnel file. In the end, on May 23, 2006, the trial court ordered the sheriff's department and LACERA to produce any documents in the personnel files referring to the Mickey Thompson investigation for in camera review. Counsel for LACERA had brought LACERA's records, and left them with the court for in camera review, with a hearing scheduled for June 7, 2006. (LACERA had destroyed all its files except for those relied on in granting Detective Griggs's disability retirement.)
On June 7, 2006, the court announced it had reviewed the entire file from LACERA, “and paper clipped and put post-its on the portions that I feel should be disclosed.” That package was identified as “Court's Exhibit 1, LACERA Pitchess/Brady,” and preserved for appellate review.
Also on June 7, 2006, the court briefly reviewed the personnel file materials provided by the sheriff's department, and observed it appeared there was nothing to be disclosed. But, to be certain, the court directed the custodian and her counsel to cull the file to eliminate material pertaining to the period before the murders, and to return with the remaining material for the court's in camera review. On June 16, 2006, the sheriff's department brought the personnel records for the period March 16, 1988, to March 23, 1993, and the court ordered certain of the documents disclosed to the defense, staying its order until June 29, 2006, to permit the sheriff's department to decide whether to seek writ review. Apparently no writ was sought.
The parties agree that this court should independently review the sealed transcripts of the hearings and related sealed personnel files, to ascertain whether the trial court properly exercised its discretion in identifying discoverable information. We have reviewed the sealed transcript of the in camera hearing at which the trial court described, on the record, the items in Detective Griggs's personnel file produced by the sheriff's department, and find no abuse of discretion. We have likewise reviewed the in camera transcript and the confidential documents produced by LACERA and preserved for appellate review, and again find no abuse of discretion.(Dkt. No. 103, Lodgment 8 at 78-79 (internal citations omitted)).
2. Federal Law and Analysis
In California, criminal defendants “may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge.” People v. Mooc, 26 Cal.4th 1216, 1219-20 (2002) (explaining the procedures for a Pitchess motion). A finding of “good cause” for such discovery must be established, including materiality of the information or records sought and a reasonable belief that the governmental agency has the type of information or records sought to be disclosed. Alford v. Superior Court, 29 Cal.4th 1033, 1038 (2003). A motion for discovery of peace officer personnel records is addressed to the sound discretion of the trial court. Id. If a defendant shows good cause, the state court reviews the records in camera to determine what information, if any, should be disclosed to the defense. Mooc, 26 Cal.4th at 1228-32.
Although a Pitchess motion involves only state law, it may implicate federal issues, such as a defendant's due process right to receive exculpatory and impeachment evidence in limited circumstances. See, e.g., Harrison v. Lockyer, 316 F.3d 1063, 1065-66 (9th Cir. 2003) (finding on federal habeas review that California procedure for Pitchess discovery requests, including requirement for preliminary showing of materiality, “faithfully followed” Brady v. Maryland, 373 U.S. 83, 86 (1963)); see also Lopez-Martinez v. Dovey, 2009 WL 863576, at *15 (C.D. Cal. Mar. 26, 2009) (noting that a Pitchess claim is cognizable on federal habeas review only if it “resolves to a claim that the trial court's asserted error in connection with [p]etitioner's Pitchess motion violated [p]etitioner's rights under the Brady doctrine”). The Due Process Clause requires the government to produce to criminal defendants favorable evidence material to their guilt or punishment. Brady, 373 U.S. at 87. To establish a Brady violation, the petitioner must show three things: that the evidence was favorable to him, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the prosecution either willfully or inadvertently; and petitioner was prejudiced by the nondisclosure. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
As noted above, Ground Four is unexhausted. Therefore, the Court will review the merits of Petitioner's claim de novo. Thompkins, 560 U.S. at 390; see 28 U.S.C. § 2254. Nevertheless, Petitioner's Pitchess claim is not cognizable in this federal habeas proceeding. Petitioner alleges only a violation of state law, i.e., that the trial court abused its discretion when it failed to find any discoverable material in Officer Grigg's personnel files after its in camera review. (Petition at 7). A “violation of state law standing alone is not cognizable in federal court on habeas.” Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); see also Riley v. Paramo, 2018 WL 4223763, at *12 (C.D. Cal. Jul. 19, 2018) (“Petitioner's claim that the trial court erred as a matter of state law in denying his Pitchess motions is not cognizable on federal habeas review.”). Indeed, Petitioner merely requests that this Court conduct the same review of the personnel records as reviewed by the trial court and the state appellate court. (Petition at 7). Critically, Petitioner does not contend that a Brady violation occurred.
Further, even were the Court to broadly construe Ground Four as a Brady claim, Petitioner has not shown any basis for relief. Petitioner is “not entitled to disclosure” of information in Officer Grigg's file “without first establishing a basis for his claim that it contains material evidence.” Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987); see also United States v. Bagley, 473 U.S. 667, 682 (1985) (holding evidence is material for Brady purposes “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”) (internal quotation marks omitted). Petitioner has not identified any evidence indicating that Officer Grigg's personnel file contained additional exculpatory information or favorable evidence to the defense. Mere speculation that the evidence exists is not sufficient to establish a viable Brady claim. See Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (“[T]o state a Brady claim, [a petitioner] is required to do more than ‘merely speculate' [about possible evidence].”)
Accordingly, after reviewing the merits of Ground Four de novo, it is “perfectly clear” that Ground Four does not raise even a colorable federal claim and, thus, federal habeas relief is not warranted.
E. Evidentiary Errors
In Grounds Five through Eight, Petitioner raises claims of evidentiary error.
1. Federal Law
A state court's evidentiary errors are not cognizable on federal habeas review without a showing that the errors violated the Constitution. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993) (“Habeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process.”). “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). In fact, the Supreme Court has never held that the admission of irrelevant or overly prejudicial evidence can constitute a due process violation. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (“The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, ... it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.”).
Courts in the Ninth Circuit have held that only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991); see also Walters v. Maas, 45 F.3d 1355, 1357 (9th Cir. 1995) (“A state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.”). Even then, habeas relief remains unwarranted unless the challenged evidence “had substantial and injurious effect or influence in determining the jury's verdict.” See Brecht, 507 U.S. at 637; Renderos v. Ryan, 469 F.3d 788, 798 (9th Cir. 2006).
2. Karen Stephens-Kingdon's Expert Testimony
In Ground Five, Petitioner claims that the trial court erred in admitting Stephens-Kingdon's “irrelevant and highly prejudicial expert testimony.” (Petition at 7; see Dkt. No. 103, Lodgment 5 at 195-208). He argues that Stephens-Kingdon, who testified for the prosecution as an expert forensic accountant, gave unsubstantiated testimony that Petitioner hid his assets from the bankruptcy trustee. (Petition at 7). On appeal, Petitioner argued that the evidence violated his due process rights because it suggested that he was involved in other criminal activity-bankruptcy fraud. (Dkt. No. 103, Lodgment 5 at 208).
a. The California Court of Appeal Opinion
At trial, Stephens-Kingdon testified that she examined thousands of financial records belonging to Petitioner and his wife, Diane Goodwin, and determined that commingled funds, as well as gold coins and traveler's checks, were used to purchase the yacht held in Goodwin's name. (See 18 RT at 6734-36, 6762-65, 6778). The California Court of Appeal rejected Petitioner's argument that this testimony was improper:
As we have seen, Ms. Stephens-Kingdon examined thousands of financial records and testified to the source and disposition of certain assets and funds. She did not testify to [Petitioner's] purpose or state of mind or intent as to those transactions. She opined that assets originally purchased with commingled funds of both spouses were transferred to investments or purchases in the name of one spouse. This subject matter is sufficiently beyond common experience that the opinion of a qualified accountant and auditor would assist the trier of fact.(Dkt. No. 103, Lodgment 8 at 81).
The state appellate court also noted that expert witnesses could “base an opinion on reliable hearsay” and, in this case, the testimony was distinctly relevant:
The prosecutor explained that the testimony was relevant to the theory of “consciousness of guilt in [Petitioner] attempting to flee the country,” and the [trial] court found that “potentially the People have a relevant theory here.” ... [T]he testimony was relevant. As the prosecutor put it at trial, the ultimate opinion he sought to elicit was “what [Petitioner] and Diane Goodwin were doing financially from the period of 1986 to the spring of 1988.” And as the trial court stated, the prosecutor sought to show [Petitioner] “was engaged in . . . transferring of assets to avoid, I think the argument is, to avoid having to pay a substantial judgment, and this witness is competent to testify to whether or not she believes based on her
review of these documents, whether or not that is what occurred.” The claim of irrelevance is meritless.(Dkt. No. 103, Lodgment 8 at 83).
b. Analysis
Here, Petitioner has failed to establish that Stephens-Kingdon's testimony violated his constitutional rights. First, to the extent Petitioner objects to the expert's opinion testimony that the yacht was purchased for both Petitioner and his wife based on commingled funds, this was not improper. “Although [a] witness is not permitted to give a direct opinion about the defendant's guilt or innocence ... an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.” Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009) (internal quotation marks omitted); see also Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (“With regard to expert testimony, ... we have found no cases supporting] the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact.” (internal quotation marks omitted)).
Second, the expert testimony did not render the trial fundamentally unfair because it was plainly relevant. From Stephens-Kingdon's testimony that Petitioner was commingling his business funds with the personal assets of his wife, the jury could reasonably infer that Petitioner was attempting to conceal money from Thompson in his attempts to collect on the civil judgment-which was relevant to Petitioner's motive to kill Thompson. Further, the expert's testimony could be used to infer that Petitioner was trying to conceal his efforts at fleeing the country after having Thompson murdered, which suggested a consciousness of guilt. Because there were permissible inferences to be drawn from the expert testimony, it did not “prevent[ ] a fair trial.” Jammal, 926 F.2d at 920 (internal quotation marks omitted); see also Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (finding no due process violation in admission of expert testimony which was relevant to prosecution theory of motive and participation in crimes); Espinoza v. Foss, 2022 WL 1131896, at *1 (N.D. Cal. Mar. 1, 2022) (“The only way the trial court's decision to admit [ ] expert testimony could be deemed a due process violation is if there were no permissible inferences the jury may draw from the testimony ....”) (internal quotation marks omitted).
Finally, even if the evidence was erroneously admitted, it did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637. Given the evidence that Petitioner and Thompson were involved in a bitter and contentious lawsuit and the threatening statements made by Petitioner (see, e.g., 6 RT at 2802; 8 RT at 3495; 19 RT at 6959), evidence that Petitioner was hiding funds to avoid paying a civil judgment to Thompson could not have affected the jury's verdict.
For these reasons, the state court reasonably rejected Petitioner's claim and, thus, Ground Five should be denied.
3. Nancy Lucia's Testimony
In Ground Six, Petitioner asserts that the trial court erred in admitting Lucia's “irrelevant and hearsay testimony that Mickey Thompson expressed fear of Petitioner.” (Petition at 8).
In the Petition, Petitioner refers to her by her former name, Wilkinson.
At trial, Lucia testified that while visiting the Thompsons in the fall of 1987, Mickey Thompson frantically ran upstairs and yelled, “Close the window. Close the drapes. [Petitioner] could have a sniper out there right now.” (12 RT at 4615-17). In admitting the testimony, the trial court ruled that the statement was not hearsay because it was not offered for its truth but, rather, to demonstrate the “level of hostility” between Petitioner and Thompson. (10 RT at 3909). Further, the trial court found the probative value of the statement outweighed any prejudicial effect, noting that it was “simply the same kind of evidence that we have heard from just about every witness that has testified so far.” (10 RT at 3910-12).
a. The California Court of Appeal Opinion
In denying Petitioner's claim, the California Court of Appeal found the testimony was properly admitted as nonhearsay evidence and, even if done in error, was harmless:
Mr. Thompson's statement was not offered for its truth. It was offered for the relevant, nonhearsay purpose of showing Mr. Thompson believed the litigation with [Petitioner] was so vitriolic that he might carry out his threats to kill both Thompsons, which is circumstantial evidence of [Petitioner's] motive. And there was no abuse of discretion in the trial court's conclusion that the evidence was more probative than prejudicial. The record fully supports the trial court's observation that the prejudicial effect was “minimal to nonexistent,” as it was “the same kind of evidence that we have heard from just about every witness that has testified so far.”
For the same reasons-the presentation of similar evidence from many other witnesses-any error in admission of Ms. Lucia's testimony would have been harmless beyond a reasonable doubt. While [Petitioner] describes the admission of the testimony as “extraordinarily damaging,” particularly because of the reference to a sniper and because of the prosecution's “hit man” theory, several other witnesses testified to
[Petitioner's] statements about having Mr. Thompson killed. In addition, there was no argument to the jury referring to the statement about a sniper. So, even if there were error in admitting Ms. Lucia's testimony-and we hold there was not-it was harmless.(Dkt. No. 103, Lodgment 8 at 88 (footnotes omitted)).
b. Analysis
Here, as stated by the state appellate court, Lucia's testimony was relevant to show Mickey Thompson believed the litigation with Petitioner “was so vitriolic that he might carry out his threats to kill both Thompsons,” which was circumstantial evidence of Petitioner's motive. As explained previously, the admission of relevant evidence from which the jury can draw reasonable inferences cannot violate a defendant's due process right to a fundamentally fair trial. Estelle, 502 U.S. at 70; see also United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (“The admission of relevant evidence, by itself, cannot amount to a constitutional violation.”). Moreover, Petitioner has made no attempt to demonstrate how Lucia's testimony was prejudicial in light of the numerous other witnesses who recalled hearing Petitioner threaten to have Thompson killed. See Brecht, 507 U.S at 637; Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (applying Brecht harmless error analysis to claim that admission of evidence was improper). Thus, the California Court of Appeal reasonably concluded that any error in admitting Lucia's testimony was harmless beyond a reasonable doubt. See Davis v. Ayala, 576 U.S. 257, 269 (2015) (Where a state court determines an error to be “harmless beyond a reasonable doubt-the test derived from Chapman v. California, 386 U.S. 18, 24 (1967)-“a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.”) (citation omitted). Accordingly, the state court reasonably rejected this claim, and Ground Six must be denied.
4. Bad Character Evidence
In Ground Seven, Petitioner contends that the trial court erred by permitting the prosecution to present “irrelevant evidence of Petitioner's bad character.” (Petition at 8). Specifically, on appeal, Petitioner claimed that the trial court erred in admitting: (1) testimony from Charles Linkletter that, after Petitioner said “he was going to screw [Thompson] out of his business” and “rip him off,” Petitioner threatened “if you ever say a word about this conversation to anybody, I will fucking kill you” (7 RT at 3027-29); (2) testimony from Jeffrey Coyne, the bankruptcy trustee for Petitioner's company, that Petitioner said to Coyne in a “black rage,” after Coyne refused several demands from Petitioner regarding the bankruptcy estate, “You better lighten up or things will get bad” and “If you fuck up my life, I'll fuck up yours” (10 RT at 4067-68); (3) testimony from Penn Weldon, a private investigator, that Petitioner wanted Weldon to “plant listening devices” in the home and cars of Thompson's attorney, Philip Bartinetti (7 RT at 310405); and (4) testimony from Lance Johnson, a friend of the Thompsons, that, several years after the murders, he heard Petitioner say to Thompson's sister Collene Campbell, “You're going to get yours, bitch” (13 RT at 4872). (See Dkt. No. 103, Lodgment 8 at 9092).
a. The California Court of Appeal Opinion
In denying Petitioner's claim, the California Court of Appeal found the testimony was properly admitted as admissions “to prove [Petitioner's] motive or state of mind, not to prove his disposition to commit murder”:
In each instance, the testimony described a statement by [Petitioner] that was highly relevant to prove the extreme level of hostility [Petitioner] harbored toward Mr. Thompson, supplying [Petitioner's] motive for the
murders. The testimony was not cumulative because each witness testified to different circumstances in which [Petitioner] effectively expressed his extreme hatred of Mr. Thompson, sustained over time, either directly or toward those who allied themselves with Mr. Thompson's interests and opposed [Petitioner's] efforts to avoid paying the Thompson judgment.
There was nothing in the testimony to “confuse[ ] the jury”; nor was any of the cited testimony significantly more inflammatory than the rest of the evidence. In short, there was no error and, as necessarily follows, no due process violation.(Dkt. No. 103, Lodgment 8 at 89-90, 92-93).
b. Analysis
As the state court determined, the testimony at issue was relevant evidence of Petitioner's state of mind-the level of hostility he displayed over the civil judgment-as well as further evidence of his motive to kill Thompson. As such, its admission did not violate Petitioner's due process rights. See Estelle, 502 U.S. at 70; LeMay, 260 F.3d at 1027.
To the extent that Petitioner argues that the evidence constituted prejudicial character evidence that was used to show his propensity to commit the crimes, the Supreme Court has not issued a “clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley, 568 F.3d at 1101. In Estelle, the Supreme Court expressly refused to determine whether the introduction of bad character evidence in the form of prior crimes to show propensity to commit a crime would violate the Due Process Clause. 502 U.S. at 75 n.5; see also Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006) (declining to find admission of character evidence implicated clearly established federal law where the Supreme Court “had expressly concluded the issue was an open question”) (internal quotation marks omitted). Absent any clearly established law, Petitioner is not entitled to habeas corpus relief.
Finally, Petitioner has not demonstrated that any of the statements at issue here was prejudicial in light of the numerous other hostile statements and violent threats made by Petitioner as testified to by other witnesses. See Brecht, 507 U.S at 637; Plascencia, 467 F.3d at 1203. For all these reasons, Petitioner's evidentiary claim in Ground Seven was reasonably rejected by the state court.
5. Victim's Character Evidence
In Ground Eight, Petitioner claims that the trial court erred by permitting the prosecution “to present irrelevant evidence of Mickey Thompson's good character” to establish that he was “regarded as a ‘nice guy.'” (Petition at 8-9). Specifically, on appeal, Petitioner claimed that the trial court erred in admitting: (1) testimony from William Wilson that Thompson cared deeply for his wife and was “tremendously in love” with her (6 RT at 2789-90); (2) testimony from Greg Smith, an Anaheim Stadium executive, that Thompson “was a very easy, very honorable man to deal with” (10 RT at 3972);
(3) testimony from Thompson's attorney Philip Bartinetti that he had a very good friendship with Thompson and was informed about the murders during a phone call he received while he was getting ready for work in the morning (8 RT at 3386, 3388-89); and (4) a color photograph of Mickey and Trudy Thompson that was used as an exhibit to identify the victims (6 RT at 2786, 2788). (Dkt. No. 103, Lodgment 8 at 94-96).
The California Court of Appeal rejected Petitioner's claim, finding that the evidence was not admitted as character evidence under California Evidence Code § 1103 but, rather, in each instance as relevant material evidence to establish the facts at trial, to explain Petitioner's motives, and to develop the prosecution's theory of the case. (Dkt. No. 103, Lodgment 8 at 93-97). Any claim that the testimony was improper under state law is not cognizable. Federal habeas relief is unavailable for alleged errors in the application of a state's rules of evidence. See Windham, 163 F.3d at 1103 (“We have no authority to review alleged violations of a state's evidentiary rules in a federal habeas proceeding.”). In any event, Petitioner wholly fails to explain how these brief statements of Petitioner's “good character” and a photograph of the two murder victims together, even if improperly admitted, had a substantial and injurious effect on the outcome of the trial. See Brecht, 507 U.S at 637; Plascencia, 467 F.3d at 1203; see, e.g., Perez v. Johnson, 2023 WL 3293368, at *21 (C.D. Cal. Mar. 1, 2023) (finding any error in allowing photograph of victim with his young son was “plainly harmless” where the jury was well aware of the relationship and the prosecutor did not attempt “to arouse any additional emotional sympathy for the victim”); Collier v. Hedgpeth, 2009 WL 2460940, at *14 (N.D. Cal. Aug. 10, 2009) (holding admission of photograph of victim in wedding clothes, even if it “caused the jurors to feel sympathy with the victim,” was not prejudicial where other evidence of killing “would have caused an even more intense reaction”). As such, any federal claim of evidentiary error was reasonably rejected by the state court, and Ground Eight fails to merit relief.
F. Right To Present a Defense
In Grounds Nine through Eleven, Petitioner raises claims that he was denied his right to present a defense when the trial court excluded the following exculpatory evidence: (1) evidence to support a theory that Dean Kennedy ordered John Young and Kit Paepule to kill Thompson; (2) evidence that Mickey Thompson had purchased or talked about purchasing a large quantity of gold just prior to the murders; and (3) evidence that another suspect, Joey Hunter, failed three polygraph examinations. (Petition at 9-10).
1. Federal Law
“The Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks and citations omitted). A defendant's right to present a defense arises both from the right to due process provided by the Fourteenth Amendment, see Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and from the right to present “witnesses in his favor” provided by the Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23 (1967).
A criminal defendant's right to present evidence is not unlimited, but is subject to reasonable restrictions, “such as evidentiary and procedural rules.” Moses, 555 F.3d at 757. A defendant does not have an unfettered right to offer evidence or testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). However, “evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve” violate a defendant's right to present a complete defense. Holmes, 547 U.S. at 324 (internal quotation marks and brackets omitted). The right is implicated only if the excluded evidence “bears persuasive assurances of trustworthiness and is critical to the defense.” Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004); see also Chambers, 410 U.S. at 300 (noting that excluded statements at issue were made “under circumstances that provided considerable assurance of their reliability”). Thus, the exclusion of defense evidence or testimony does not violate the Constitution if, among other things, the excluded evidence was only “marginally relevant” or “repetitive,” or “pose[d] an undue risk of harassment, prejudice, [or] confusion of the issues.” Crane v. Kentucky, 476 U.S. 683, 689-90 (1986) (internal quotation marks and citation omitted).
Even if a trial court's exclusion of evidence is improper, trial court error is subject to harmless error analysis. A federal court may not grant habeas relief unless the court has “grave doubt” about whether an error had “a substantial and injurious effect or influence in determining the jury's verdict.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (internal quotation marks omitted); Brecht, 507 U.S. at 637; see also DePetris v. Kuykendall, 239 F.3d 1057, 1063-65 (9th Cir. 2001) (applying Brecht harmless error standard to claim under Chambers that the trial court erred by excluding evidence critical to the defense).
2. Third-Party Culpability Evidence
Petitioner sought to admit evidence at trial that another person ordered Thompson and his wife to be killed. (6 CT at 1718-33). The California Court of Appeal summarized the evidence as follows:
[Petitioner] proposed to show that a man named Dean Kennedy ordered the Thompson murders, and they were committed by John Young (a very tall, athletically built black man) and Kit Paepule (a dark-skinned, very stocky man of Samoan descent). The theory was that Kennedy ordered the Thompson murders at the instance [sic] of a man named Larry Cowell, who had a motive for having the Thompsons murdered.
Cowell's motive for murdering the Thompsons stemmed from Cowell having killed Scott Campbell (Collene Campbell's son and Mickey Thompson's nephew). Scott Campbell was a drug dealer who in 1979 was convicted of manslaughter in the killing of another drug dealer who had ties to the Vagos motorcycle gang. Cowell, who owned an auto repair shop for
Pantera sports cars (a type of expensive sports car that Scott Campbell owned) had been a friend of the Thompson and Campbell families for years.
In 1982, Scott Campbell, who was then the target of an investigation of interstate transportation of cocaine, arranged for Cowell to fly him in a private plane to North Dakota in connection with an anticipated cocaine sale. Before the trip, he left his Pantera at Cowell's shop for repairs. During the flight, Cowell and Donny DiMascio killed Scott Campbell and threw him out of the plane. The primary motive was robbery, but DiMascio was a known Vagos motorcycle gang associate, and the Vagos gang had been threatening Scott Campbell since the 1979 killing.
Mickey Thompson testified at Larry Cowell's first trial for the murder of Scott Campbell. Cowell had tried to fabricate an alibi for the murder by leaving telephone messages for Scott Campbell (while he was missing during the weeks after the murder); the messages said Campbell's car was ready to be picked up after extensive repairs. Mr. Thompson testified that he and the police went to Cowell's shop, and Mr. Thompson saw that the car was in pieces and missing major parts (as [Petitioner] puts it, “the car had not been repaired at all-ruining the alibi”). Cowell was convicted, but the conviction was overturned based on a coerced confession, and Mickey Thompson was killed before the second trial (at which Cowell was again convicted).[FN 30]
[FN 30] Respondent points out that Mr. Thompson's testimony was not critical. He testified that he saw the car at Cowell's shop, missing major parts that were necessary for operation of the car, but that occurred a year after Scott Campbell's murder.
The theory continues: Cowell, who thus had motive, was a close friend of Ed Losinski (who owned a Pantera and used Cowell's repair shop). Losinski was an engineer and mason who had also known Mickey Thompson for years, had worked on the Thompson property and would know the neighborhood. Ed Losinski was also a good friend of Dean Kennedy, whom he had met through the boat racing community; they both had shops in the same area. Dean Kennedy, in December 1987, ordered two other murders; he sent John Young and Kit Paepule to kill a drug dealer named Thomas Wilson (and his girlfriend if she were present), and a week later hired Young to kill Jerome Genoway (who was being investigated for drug dealing) and the woman who lived with him (if she was present). Kennedy's alleged motive for having Wilson killed was that he had burglarized Kennedy's home and was “disrespectful,” and his motive for having Genoway killed was to avoid paying money he owed Genoway. In taped conversations between Kennedy and a drug-smuggling friend, Kennedy said he was not worried about doing time for the Wilson and Genoway murders, because he had a friend who was willing to take the fall for him in return for cash. (Kennedy was convicted of these murders and was in custody at the time of the Thompson murders.)
In addition: Richard Passmore, a neighbor of the Thompsons, saw a maroon Volvo with two athletic-looking African-American men unloading bicycles within a couple of blocks of the murder scene a day or two before the murders. Larry Shaleen, a close friend of Dean Kennedy, saw John Young (one of Kennedy's hit men) driving a maroon Volvo in the past. Shaleen visited Kennedy just before Kennedy was arrested, and noticed two brand new 10-speed bicycles in Kennedy's garage, when Kennedy was too overweight to ride a bicycle. (Two of Kennedy's neighbors, Linda Osborne
and Kathy O'Neill, also saw the bikes, and they heard Kennedy brag about knowing Mickey Thompson “and about knowing the killers of Mickey Thompson's nephew Scott Campbell.”) Hit man John Young “bears an uncanny resemblance” to the composite drawings made of the men who killed the Thompsons, and his companion Kit Paepule habitually wore a hooded sweatshirt, as in the composite drawing of the stockier shooter. (Linda Osborne and Kathy O'Neill also thought the composite drawing of the Mickey Thompson shooter was John Young.)
Finally, the defense also sought to introduce evidence to show “that a local drug user named Joey Hunter was their lookout for this crime.” ... Five witnesses saw a white man “hitchhiking frantically” with a bicycle at a bus stop, about two and a half miles from the crime scene and shortly after the murders. Two of those witnesses identified Mr. Hunter from a photographic lineup. (The others identified someone other than Hunter, or said the person they saw was not in the photographs they were shown.) Mr. Hunter was arrested. He failed polygraph tests regarding his involvement in the Thompson murders, and told a fellow inmate that he was involved in the murders. He also confessed his involvement to his cousin, Bonnie Dalton, telling her he was not worried about doing hard time, because he worked for someone who promised him that if he took the fall he would only get two years and would get $50,000.[FN 31] (The defense points out that Dean Kennedy similarly said, as noted above, that he had a friend who was willing to take the fall for the Wilson and Genoway murders in return for cash.)
[FN 31] The prosecutor argued the confession to Hunter's cousin, Bonnie Dalton, was unreliable. The prosecutor explained that, before Hunter was interviewed by the police (but after he was aware of the
police's interest in him), Ms. Dalton asked him if he murdered the Thompsons, “to which he replied that he did not. Hunter then sarcastically said ‘I did it, Bonnie, I killed them.' When she did not respond, he then started laughing and said ‘Ha, ha, you believe me, don't you?' Dalton then told Hunter that he was ‘full of shit,' and the conversation ended.” And on the day before Hunter went to the police, “he got drunk and began rambling. Hunter told Dalton that he was the man on the bicycle and that the killers were not black but white men spray painted black. He also said that the Mafia wanted him to turn himself in, and that he would only get two years in prison. He said that the Mafia would pay him $50,000 for his time in jail.”
In sum, the defense intended to show-“through the testimony of Larry Shaleen, Richard Passmore, Linda Osborne, and Kathy O'Neill,” as well as through the testimony of the two detectives who investigated the Wilson and Genoway murders-“that Dean Kennedy and his hit men were responsible for the death of Mickey and Trudy Thompson.” And the defense also intended to show that Joey Hunter was their lookout.(Dkt. No. 103, Lodgment 8 at 98-101).
Following a hearing, the trial ruled that the third-party culpability evidence was inadmissible because any connection Dean Kennedy and Larry Cowell had to the Thompson murders was too tenuous to be relevant and admitting the evidence would cause confusion of the issues and an undue consumption of time for the jurors. (6 RT at 39-57).
a. The California Court of Appeal Opinion
On appeal, the California Court of Appeal found that the trial court's exclusion of the third-party culpability evidence was proper because there was no direct or circumstantial evidence linking another person (Kennedy or Cowell) to the murders:
As to the theory that Dean Kennedy ordered the murders, there was no link at all between him and “the actual perpetration of the crime.” To recap: The only third person identified with a conceivable motive was Larry Cowell, who may have wanted to prevent Mickey Thompson from testifying at his second trial. But there was no connection between Cowell and Kennedy, except (1) they were both friends of Ed Losinski, who was familiar with the Thompson neighborhood, and (2) two of Kennedy's neighbors said that Kennedy said that he knew Scott Campbell's murderers (of whom Cowell was one). But evidence-even if it were not inadmissible hearsay-that Kennedy knew Cowell does not by any stretch of the imagination create a link to the Thompson murders. (According to the prosecutor, in January 1998 Kennedy was specifically asked if he knew Cowell, and confirmed he did not.) And except for the hearsay statement from Kennedy's neighbors (that he bragged that he knew Mickey Thompson), there was no evidence linking Kennedy himself to the Thompsons, much less to their murders. In addition, both Kennedy and Cowell were in custody, in separate facilities in different parts of California, when the Thompsons were murdered. In short, ... the Dean Kennedy evidence was plainly not relevant.
As to the theory that Joey Hunter was the lookout, there was likewise no abuse of discretion in the court's exclusion of [Petitioner's] proffered
evidence. Mr. Hunter himself had no motive to murder the Thompsons; [Petitioner] showed no connection of any kind between Joey Hunter and Larry Cowell or Dean Kennedy or Ed Losinski or Kennedy's two hit men for the other contract murders; and there is no evidence Joey Hunter was at the crime scene. And, as respondent points out, the actual perpetrators of the Thompson murders made their escape from the scene in minutes over a bike route leading to quick freeway access-so even if Hunter was correctly identified as the man “frantically hitchhiking” with a bicycle, two miles from the murder scene and an hour later, it is hard to see how he could have been part of the conspirators' plan for the Thompson murders. ... Under these circumstances, the court did not err in finding that under [California] Evidence Code section 352, the undue consumption of time and confusion of the issues “just overwhelms and outweighs the marginal relevance” of the Joey Hunter evidence.(Dkt. No. 103, Lodgment 8 at 103-105 (internal citations omitted)). The state appellate court considered the federal authority on Petitioner's right to present a defense, including Chambers and Holmes, and concluded that no violation of Petitioner's due process rights occurred by excluding the third-party culpability evidence. (Dkt. No. 103, Lodgment 8 at 107-09).
b. Analysis
Here, there simply was no critical defense evidence that was excluded at Petitioner's trial. “Motive or opportunity” to commit the crime is “not enough” to support the admission of third-party culpability evidence. Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999). Petitioner's theory that Kennedy ordered Young and Paepule to kill Mickey Thompson, presumably at the behest of Cowell (the only person with even a suggested motive to want Thompson dead), was entirely speculative. Petitioner established no connection between Kennedy and Cowell that would remotely suggest that they conspired to have Thompson killed so he would not testify at Cowell's retrial. As the state appellate court noted, Kennedy and Cowell were in separate prison facilities at the time of the Thompson murders, and Kennedy denied even knowing Cowell. Further, there was absolutely no evidence linking either man to the crime scene where the Thompsons were murdered. “Evidence of third-party culpability is not admissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense.” People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (internal quotations and citation omitted); see also Holmes, 547 U.S. at 327 (stating that third party culpability evidence “may be excluded without violating the federal Constitution where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial” (internal quotation marks omitted)).
For the same reasons, the trial court's decision to exclude evidence under California Evidence Code § 352 that Hunter acted as a lookout in the Thompson murders did not violate Petitioner's constitutional rights. “The Constitution permits the exclusion of evidence whose ‘probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.'” Thiecke v. Kernan, 695 Fed.Appx. 209, 212 (9th Cir. 2017) (quoting Holmes, 547 U.S. at 326). The evidence in support of Hunter's involvement in the murders was marginal at best and, even if believed, in no way exonerated Petitioner.
In fact, the trial court noted in ruling on Petitioner's new trial motion that, “even if [Petitioner] could show Joey Hunter was present as a look-out-and the defense presented no such evidence-that ‘doesn't mean that there is a reasonable doubt that [Petitioner] was involved.'” (Dkt. No. 103, Lodgment 8 at 106).
Finally, even if the trial court erred in excluding some of this evidence, habeas relief is not warranted because the Court does not have “grave doubt” about whether the alleged error had a substantial and injurious effect or influence in determining the jury's verdict. Davis, 576 U.S. at 268; Brecht, 507 U.S. at 623. Here, the prosecutor presented a compelling circumstantial case, which included substantial motive evidence and two witnesses who testified seeing Petitioner with binoculars parked in a car near the Thompson residence a few days before the murders. Petitioner's alternate theory on the killers was unsupported by any evidence linking Kennedy or Cowell to the Thompson murders and, as such, the Court does not find that any of the excluded evidence would have affected the jury's verdict. Accordingly, the state court reasonably rejected Ground Nine, and Petitioner is not entitled to habeas relief on this claim.
3. Robbery Motive Evidence
At trial, Petitioner sought to admit testimony from Eric Miller that, on the night before the murders, Mickey Thompson “took possession of a quarter million dollars worth of gold.” (20 RT at 7685). To corroborate the statement, the defense also sought to introduce testimony from other witnesses that prior to being murdered, Thompson told them that he was planning to buy gold. (20 RT at 7680-81). The proposed testimony was offered to show that the murders resulted from a planned robbery rather than an ordered execution by Petitioner. (20 RT at 7681). The trial court held that evidence of Thompson's intent to acquire gold was not admissible unless Petitioner could show that something was taken from the house-which he could not do. (21 RT at 7818-19). Further, the trial court would not allow the hearsay testimony from Miller that Thompson recently purchased a large quantity of gold. (21 RT at 7838-39).
a. The California Court of Appeal Opinion
On appeal, Petitioner claimed excluding this evidence violated his right to present a defense. The California Court of Appeal rejected the claim, finding that Thompson's statement to Miller was hearsay without an applicable exception. (Dkt. No. 103, Lodgment 8 at 112). Further, the state appellate court held that evidence Thompson intended to buy gold was irrelevant because there was no “evidence of a robbery, or evidence that he communicated his intent to someone involved in the murders, or evidence there was gold on the premises.” (Dkt. No. 103, Lodgment 8 at 112).
b. Analysis
Petitioner's claim that this exclusion of evidence violated his federal constitutional rights is plainly without merit. First, the testimonial evidence at issue here was not admissible under standard evidentiary rules surrounding hearsay and relevance and, as such, the state could properly exclude it. See Egelhoff, 518 U.S. at 42; Moses, 555 F.3d at 757; see also Morales v. Montgomery, 2016 WL 11756815, at *5 (C.D. Cal. Nov. 7, 2016) (“Petitioner's claim fails because there is no clearly established Supreme Court precedent squarely holding that a trial court's exercise of discretion in applying otherwise valid evidentiary rules-like the relevance and hearsay rules invoked here-can violate a defendant's constitutional rights, nor has the Supreme Court established any controlling legal standard for evaluating discretionary decisions applying garden-variety evidentiary rules like relevance and hearsay.”). Petitioner has not shown that the application of the rules of evidence in this instance was “arbitrary or disproportionate to the purposes they [were] designed to serve.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (internal quotation marks omitted). Second, hearsay evidence that Thompson acquired or planned to acquire gold was not critical to Petitioner's defense where there was no evidence to suggest that the Thompsons were murdered as part of a robbery. See Gomez v. Sandor, 468 Fed.Appx. 656, 657 (9th Cir. 2011) (finding exclusion of hearsay statement “was not critical to [the] defense” because the statement did not clearly or directly exculpate defendant). Finally, because any argument that the Thompsons were murdered during a robbery was completely speculative and rebutted by evidence that nothing was stolen from the Thompsons' home or persons (see 15 RT at 5431, 5435-50), there is no reasonable likelihood that admitting the testimonial evidence regarding Mickey Thompson's intended or actual gold purchase would have affected the outcome of the trial. Thus, any error was harmless. See Brecht, 507 U.S. at 638. Accordingly, the state court reasonably rejected Ground Ten, and Petitioner is not entitled to habeas relief on this claim.
4. Failed Polygraph Examination Evidence
Finally, Petitioner sought to admit evidence that Joey Hunter failed three polygraph examinations, presumably to suggest that he was lying when he denied being involved in the Thompson murders. The trial refused to allow the evidence. (See Dkt. No. 103, Lodgment 8 at 115).
a. The California Court of Appeal Opinion
In denying Petitioner's claim on appeal, the California Court of Appeal noted that California Evidence Code § 351.1 “unambiguously” states that polygraph evidence is inadmissible, unless all parties stipulate to its admission, because the courts have a legitimate interest in barring unreliable evidence. (Dkt. No. 103, Lodgment 8 at 115). Further, the state appellate court held the state's evidentiary rule precluding polygraph evidence did not violate Petitioner's due process rights or right to present a defense because there was no federal constitutional right to introduce polygraph evidence. (Dkt. No. 103, Lodgment 8 at 115-16).
b. Analysis
The Supreme Court has made clear that the government “unquestionably ha[s] a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules.” Scheffer, 523 U.S. at 309. In Scheffer, the Supreme Court noted that both federal and state courts continue to express doubt about the reliability of polygraph evidence, declaring that “there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.” Id. at 312. Because courts “may legitimately be concerned that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise,” the Scheffer Court held that the military's per se rule excluding polygraph evidence was constitutional since it was “a rational and proportional means of advancing the legitimate interest in barring unreliable evidence.” Id. at 312-14.
In light of this holding, the California Supreme Court's rejection of Petitioner's claim was certainly not contrary to, or an unreasonable application of, clearly established federal law. See, e.g., Salgado v. Davey, 2015 WL 10125491, at *8 (C.D. Cal. Nov. 9, 2015) (“[T]he state court could not have unreasonably applied federal law because the Supreme Court has never held that a defendant has the right to cross-examine a witness regarding the result of a polygraph examination or the effect his knowledge of that result had on his statement to police.”); Long v. Lattimore, 2012 WL 1400898, *14 (C.D. Cal. Mar. 16, 2012) (“A per se rule precluding admission of polygraph evidence does not violate the federal constitution. [¶] Accordingly, the trial court's reliance on California Evidence Code § 351.1 did not violate petitioner's federal constitutional rights, and the state courts' rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law.”) (citation omitted). Therefore, Petitioner's claim in Ground Eleven fails to merit relief.
G. Jury Instruction Error
In Grounds Twelve through Fourteen, Petitioner raises claims of jury instructional error.
1. Federal Law
Jury instructional error warrants federal habeas relief only if the “instruction by itself so infected the entire trial that the resulting conviction violates due process.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation marks omitted). The challenged instruction must be more than merely erroneous; rather, a petitioner must show there was a “reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam) (internal quotation mark omitted); see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it must be established not merely that the instruction is undesirable, erroneous or even ‘universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.”). Whether a constitutional violation occurred must be evaluated in the context of the instructions as a whole and the entire trial record. Estelle, 502 U.S. at 72.
Even if a jury instruction is erroneous, habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Brecht, 507 U.S at 637. This requires showing that there is more than a reasonable probability that the error had a substantial and injurious effect on the jury's verdict. Id.; see also Davis, 576 U.S. at 268 (“There must be more than a ‘reasonable possibility' that the error was harmful.”).
2. Conspiracy Instruction
In Ground Twelve, Petitioner claims that a “defective conspiracy instruction” allowed him to be convicted “without proof of connection and agreement between Petitioner and the killers.” (Petition at 10-11).
a. The California Court of Appeal Opinion
On appeal, the California Court rejected Petitioner's claim that there was “no prima facie showing of the existence of a conspiracy by independent evidence,” noting that it had previously determined that sufficient evidence existed to support the murder conviction based on evidence that Petitioner conspired with two unidentified assailants to have Petitioner and his wife killed. (Dkt. No. 103, Lodgment 8 at 117). See also supra § VI.B. The state appellate court further rejected any complaint that the conspiracy instructions were erroneous:
The court instructed the jury on uncharged conspiracy with CALJIC No. 6.10.5 (defining the terms “conspiracy” and “overt act” and describing the elements necessary to find defendant to be a member of a conspiracy).[FN 37]In addition, the court gave CALJIC No. 6.12 (that proof of an express agreement is not necessary, and may be inferred from all circumstances tending to show the common intent),[FN 38] as well as CALJIC No. 6.11 (on joint responsibility of each member of a conspiracy for the acts of the other
conspirators) and CALJIC No. 6.14 (that acquaintance with all coconspirators is not necessary).[FN 39]
[FN 37] The trial court instructed, based on CALJIC No. 6.10.5: “A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case. [¶] In order to find a defendant to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that defendant personally committed the overt act, if he was one of the conspirators when the alleged overt act was committed. [¶] The term ‘overt act' means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To be an ‘overt act,' the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or unlawful act.”
[FN 38] Under CALJIC No. 6.12, the court instructed: “The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and
circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement.”
[FN 39] In the trial court, [Petitioner] argued that CALJIC No. 6.10.5 (defining conspiracy and overt acts) was the only conspiracy instruction that should be given in an uncharged conspiracy case.
[Petitioner] argues that the trial court also should have instructed with CALJIC No. 6.22. That instruction says that each defendant in a conspiracy case is individually entitled to a determination whether he or she was a member of the conspiracy, and that the jury must find, beyond a reasonable doubt, that there was a conspiracy to commit the crime, that a defendant “willfully, intentionally and knowingly” joined with others in the conspiracy, and that one of them committed an overt act.[FN 40] [Petitioner] argues that, by including CALJIC No. 6.12 (that proof of an express agreement is not necessary), but failing also to instruct with CALJIC No. 6.22, the court “did not make clear for the jury that a conspiratorial agreement must be proved beyond a reasonable doubt,” and thus “misled” the jurors.[FN 41] [Petitioner] also asserts that CALJIC No. 17.00-instructing the jury to “decide separately whether each of the defendants is guilty or not guilty” (italics added)-should have been given. [Petitioner] is mistaken.
[FN 40] CALJIC No. 6.22-entitled “conspiracy-case must be considered as to each defendant”-states: “Each defendant in this case is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy.
[¶] Before you may return a guilty verdict as to any defendant of the crime of conspiracy, you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime[s] of, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt, that an overt act was committed by one of the conspirators. You are not required to unanimously agree as to who committed an overt act, or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the [information] [indictment] to be overt acts.”
[FN 41] [Petitioner] does not challenge the court's other conspiracy instructions (CALJIC Nos. 6.11 and 6.14), observing only that CALJIC No. 6.11 “does not satisfy the purpose of CALJIC No. 6.22.”
First, [Petitioner] did not request the court to instruct with CALJIC Nos. 6.22 and 17.00 (or CALJIC No. 6.18).[FN 42] “To the extent [Petitioner's] claim is that the court failed to give clarifying or amplifying instructions, the claim is waived because [Petitioner] did not request such clarification below.” (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)
[FN 42] [Petitioner] states that the court did not instruct the jury “in the language of CALJIC 6.22 or 6.18,” but he presents no explanation or argument about CALJIC No. 6.18, except to say that the trial court's failure to give it “compounded this [instructional] error.” (CALJIC No. 6.18 states that “[e]vidence of the commission of an act which furthered the purpose of an alleged conspiracy is not, in itself,
sufficient to prove that the person committing the act was a member of the alleged conspiracy.”)
Second, CALJIC No. 6.22 by its plain terms is intended for use in a case where multiple defendants are charged with the crime of conspiracy (and CALJIC No. 17.00 is likewise for use in a multiple-defendant case). This case involves neither multiple defendants nor a conspiracy charge. A trial court has no sua sponte duty to give an instruction that does not apply to the case.
Third, there is in any event no merit to the claim that the instructions as given somehow “lowered the prosecutor's burden of proof.” ... [¶] Here, the jury was instructed that a conspiracy was “an agreement between two or more persons with the specific intent to agree to commit the crime of murder,” and the instruction made it quite clear that the prosecutor had to prove the agreement, the intent to agree to commit murder, and an overt act: “In order to find a defendant to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act.” (Italics added.) The jury was also instructed that “each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.” The jury was instructed that “before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.” (CALJIC No. 2.01.) The jury was instructed that [Petitioner] was presumed to be innocent and the People had “the burden of proving [defendant] guilty beyond a reasonable doubt.” (CALJIC No. 2.90.) The jury was instructed
that the burden was “on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged.” (CALJIC No. 2.91.)
In short, it is quite clear that, “[c]onsidered as a whole, the instructions did not reduce the prosecution's burden of proof.” (People v. Williams, supra, 161 Cal.App.4th at p. 711.) There was no error.(Dkt. No. 103, Lodgment 8 at 117-20).
b. Analysis
Here, the trial court gave standard instructions on the uncharged conspiracy, including CALJIC No. 6.10.5 (defining the terms “conspiracy” and “overt act” and describing the elements necessary to find defendant to be a member of a conspiracy), CALJIC No. 6.11 (on joint responsibility of each member of a conspiracy for the acts of the other conspirators), CALJIC No. 6.12 (that proof of an express agreement is not necessary, and may be inferred from all circumstances tending to show the common intent), and CALJIC No. 6.14 (that acquaintance with all coconspirators is not necessary). (7 CT at 1992-95). The court did not give CALJIC Nos. 6.22 and 17.00 because, as the California Court of Appeal explained, these instructions applied only where multiple defendants were charged with a separate crime of conspiracy-facts that did not exist in Petitioner's trial. Petitioner's challenge to any of these instructions as being erroneous under California law simply is not cognizable in this federal habeas proceeding. See Wilson, 562 U.S. at 5 (“[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.”); Estelle, 502 U.S. 62, 71-72 (1991) (“[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.”); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir.
The Court defers to the state court's determination that the disputed instructions were inapplicable. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[S]tate court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Gonzalez v. Gonzalez, 394 Fed.Appx. 415, 415-16 (9th Cir. 2010) (“The California Court of Appeal's conclusion that there was no instructional error is a binding interpretation of state law.”).
2005) (“Failure to give [a jury] instruction which might be proper as a matter of state law, by itself, does not merit federal habeas relief.”) (internal quotation marks omitted).
Nevertheless, assuming Petitioner is properly raising a federal constitutional claim, it is without merit. First, “[d]ue process does not require that an instruction be given unless the evidence supports it.” Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985). Thus, failing to give the inapplicable instructions-CALJIC Nos. 6.22 and 17.00-clearly did not violate Petitioner's constitutional rights. Second, Petitioner has made no attempt to explain how the conspiracy instructions that were given, as a whole, lowered the prosecution's standard of proof, where the jury was repeatedly told that Petitioner was presumed to be innocent, that guilt had to be proved beyond a reasonable doubt, and that it was the prosecution that had the burden of proving Petitioner's guilt beyond a reasonable doubt. (7 CT at 1963 (CALJIC No. 2.01), 2007 (CALJIC No. 2.90)).
Respondent contends that this part of Ground Twelve is procedurally defaulted from federal review because the California Court of Appeal found that Petitioner forfeited the claim by failing to object to the request that CALJIC Nos. 6.22 and 17.00 be given at trial. (Ans. Mem. at 57-58). While there may well be merit to this argument, because “a procedural default ... is not a jurisdictional matter,” Trest v. Cain, 522 U.S. 87, 89 (1997), a federal habeas court may bypass the question of procedural default to deny a claim on the merits, see Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than the merits issues presented by the [habeas petition], so it may well make sense in some instances to proceed to the merits if the result will be the same.”). Because the claim clearly fails on its merits, the Court exercises its discretion to bypass the procedural default issue at this time. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.”); Franklin, 290 F.3d at 1232 (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar.”).
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and Ground Twelve does not warrant federal habeas relief.
3. Eyewitness Identification Instruction
In Ground Thirteen, Petitioner asserts that the trial court violated his right to due process when it allowed the jury to consider the “witnesses' level of certainty” when deciding whether the identification of Petitioner by the Stevenses was credible. (Petition at 11).
Respondent also contends that Ground Thirteen is procedurally defaulted from federal review because the California Court of Appeal found that Petitioner forfeited the claim by failing to object to CALJIC No. 2.92 being given at trial. (Ans. Mem. at 62). Again, there may be merit to this argument, but the Court chooses to bypass the procedural default issue at this time because the claim clearly fails on its merits. See Flournoy, 681 F.3d at 1004 n.1; Franklin, 290 F.3d at 1232.
a. The California Court of Appeal Opinion
On appeal, the California Court of Appeal rejected Petitioner's claim of instructional error as follows:
The court instructed the jury, without objection, with a modified version of CALJIC No. 2.92, as follows: “Eyewitness testimony has been received in this trial. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the
eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following: [¶] ... [¶] The extent to which the witness is either certain or uncertain of the identification . . ..” The instruction also listed a dozen other factors the jury should consider, including the length of time between the act and the identification, whether the identification is in fact the product of the witness's own recollection, and so on.
The witness's certainty or uncertainty has long been used as a factor in evaluating eyewitness identifications, and its use does not violate due process. In Neil v. Biggers (1972) 409 U.S. 188, the court found that, under the totality of the circumstances, the show-up identification in that case was reliable “even though the confrontation procedure was suggestive.” (Id. at p. 199.) The court continued: “As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Id. at pp. 199-200; see also Manson v. Brathwaite (1977) 432 U.S. 98, 117 (Manson) [“the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a[n] . . . identification”]; see also Perry v. New Hampshire (2012) -U.S- [132 S.Ct. 716, 725, fn. 5, 728] [footnoting the factors as listed in Biggers and Manson, and holding that “[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.”].)
Further, as [Petitioner] admits, the California Supreme Court has approved CALJIC No. 2.92. (People v. Johnson (1992) 3 Cal.4th 1183, 1230-1231 (Johnson) [“CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification factors”].) Johnson rejected a claim of trial court error in instructing the jury on the certainty factor. (Id. at pp. 1231-1232 [the defendant contended there was no evidence to support the instruction because an expert testified, without contradiction, that a witness's confidence in an identification does not positively correlate with its accuracy; the court concluded the trial court “did not err ... in instructing the jury on the ‘certainty' factor”].) Johnson also cited the certainty factor when it restated “the principles that determine whether the admission of identification evidence violates a defendant's right to due process.” (Id. at p. 1216.) The court said that “[c]onstitutional reliability ... depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citing Manson]; and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. [Citation.] ‘If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' [Citation.]” (Ibid.)
In the face of this solid body of law, [Petitioner] nonetheless argues the instruction violated his right to due process, because “[s]ubsequent research ... has shown the certainty with which the witness makes the
identification has little correlation with the accuracy of that identification.” The argument fails.
First, [Petitioner] did not object to the instruction; indeed, CALJIC No. 2.92 appears on [Petitioner's] list of requested instructions. When an instruction is a correct statement of the law and the defendant claims it should have been modified, “his failure to seek such modification forfeits the claim.” (People v. Richardson, supra, 43 Cal.4th at pp. 1022-1023 [“while the court may review unobjected-to instruction that allegedly implicates defendant's substantial rights, claim that instruction, correct in law, should have been modified ‘is not cognizable, however, because defendant was obligated to request clarification and failed to do so,'” quoting People v. Guerra, supra, 37 Cal.4th at p. 1134].)
Second, we cannot in any event find a due process violation. [Petitioner] relies only on authorities from other jurisdictions, such as Brodes v. State (2005) 279 Ga. 435. There, the court held (over a dissent) that, because of studies showing no correlation between certainty and accuracy, “we can no longer endorse an instruction authorizing jurors to consider the witness's certainty in his/her identification as a factor to be used in deciding the reliability of that identification.” (Id. at p. 440.) But cases from other jurisdictions do not assist [Petitioner], as we are bound by the decisions of our Supreme Court and the high court and, as we have seen, their directions are clear.
We cannot end without noting that “the jury, not the judge, traditionally determines the reliability of evidence,” and there are “other safeguards built into our adversary system that caution juries against placing
undue weight on eyewitness testimony of questionable reliability.” (Perry v. New Hampshire, supra, 132 S.Ct. at p. 728.) These safeguards include counsel who “can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments” (ibid.), as well as expert testimony-both of which safeguards were well employed in this case.(Dkt. No. 103, Lodgment 8 at 120-23 (footnote omitted)).
b. Analysis
As the California Court of Appeal noted, Petitioner's argument that jurors should not consider a witness's certainty about his or her identification in assessing the reliability of that witness's testimony is undermined by Supreme Court precedent. In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court specifically listed the “level of certainty demonstrated by the witness at the confrontation” to be one of the permissible “factors to be considered in evaluating the likelihood of misidentification.” Id. at 199-200.
More recently, the Supreme Court approvingly cited the Biggers factors, including the level of certainty expressed by a witness, and held these factors may properly be considered in evaluating the reliability of an eyewitness identification. Perry v. New Hampshire, 565 U.S. 228, 239-40 & n.5 (2012). Thus, courts have routinely found the language in CALJIC No. 2.92 relating certainty of identification with the increased accuracy of identification-even if disputed by experts based on empirical evidence-to be constitutional. See Sanchez v. Long, 2015 WL 10766861, at *13 (C.D. Cal. Nov. 16, 2015) (holding, in light of Biggers, that petitioner's belief “that the trial court erred in instructing the jury to consider the witnesses' level of certainty .. in assessing the accuracy of their identifications ... is incorrect”); Alexander v. Gower, 2013 WL 5940804, at *7 (C.D. Cal. Nov. 3, 2013) (finding claim of error for instruction on level of certainty in witness identification plainly fails “[i]n light of Neil v. Biggers and Manson v. Brathwaite”); Arroyo v. Biter, 2012 WL 6645203, at *5 (C.D. Cal. June 22, 2012) (rejecting due process claim as to witness-certainty provision in jury instruction because it did “little more than parrot [Biggers]'s wording”). Petitioner points to no federal authority-and the Court is aware of none-that supports his claim that the instruction violated his due process rights.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and Ground Thirteen does not warrant federal habeas relief.
4. Consciousness of Guilt Instruction
In Ground Fourteen, Petitioner contends that the trial court erred by instructing the jury it could consider Petitioner's departure from the country five months after the murders as evidence of flight and consciousness of guilt. (Petition at 11-12).
a. The California Court of Appeal Opinion
At trial, the court instructed the jury with a modified version of CALJIC No. 2.52, as follows: “The flight of a person after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. Whether or not evidence of flight shows a consciousness of guilt and the significance to be attached to such a circumstance, are matters for your determination.” (Dkt. No. 103, Lodgment 8 at 124).
The California Court of Appeal recounted the facts at trial that supported the instruction:
Karen Dragutin testified to threatening statements [Petitioner] made about Mickey Thompson during a dinner conversation in the months preceding the murders. These included that “the only way he [Petitioner] was going to get out of it [(the litigation mess)] is if Mickey Thompson died.” Ms. Dragutin said [Petitioner] “was talking about a boat and going to Bermuda, and it was still in the context of that conversation. So my conclusion was he was going away.”
The facts relating to the yacht are recounted in the factual summary. In short, [Petitioner's] wife made a deposit for the purchase of a yacht in January 1988, received approval of a bank loan for the yacht on March 9, 1988, and consummated the sale in late April or early May. On June 27, 1988, [Petitioner] took the 57-foot yacht, which was outfitted such that two people could live on it for an extended period of time, to a South Carolina marina for installation of equipment, and the yacht was there for six weeks. In early August, [Petitioner] unexpectedly asked the marina manager to expedite the work; the manager did so, and [Petitioner] sailed away. In May 1991, the bank holding the mortgage on the yacht hired a boat surveyor to repossess the yacht, and during his efforts to do so, [Petitioner] told him by telephone that “he would never find his boat.” The surveyor ultimately located the yacht and [Petitioner] in Guatemala.
Detective Griggs testified that he never caused a case to be filed against [Petitioner], never arrested him, and at no time sought to arrest him and could not find him.(Dkt. No. 103, Lodgment 8 at 124-25 (citations omitted)).
Thereafter, the state appellate court rejected Petitioner's various arguments that the instruction was improper:
[Petitioner] first contends the flight instruction “improperly focused the jury's attention on ‘flight' evidence where little evidence connected [Petitioner] to the killings.” [Petitioner's] premise-that little evidence connected him to the crimes-is unsound, and the only authority he cites is not California authority. In California, the flight instruction is proper if “‘the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt'” (Avila, supra, 46 Cal.4th at p. 710), and that is the only pertinent question. The evidence we have described above-relating to the purchase of the yacht, its outfitting, and [Petitioner's] subsequent sailing to parts unknown, along with his statements before the murders “about a boat and going to Bermuda,” in the context of other statements that “the only way he was going to get out of it [(the litigation mess)] is if Mickey Thompson died”-permits the inference that [Petitioner] left Los Angeles “‘under circumstances suggesting that his movement was motivated by a consciousness of guilt.'” (Ibid.)
Next, [Petitioner] says the instruction was defective because it omitted the word “immediate,” which appears in [California] Penal Code section 1127c, and because defendant had not been accused of the murders when he “went sailing.” There was no defect. The statutory language includes the flight of a person both “immediately after the commission of a crime” and “after he is accused of a crime that has been committed. ...”
(§ 1127c.) As defense counsel told the trial court in seeking dismissal of the case, [Petitioner] “was a named suspect within hours of the murder.” And, in any event, CALJIC No. 2.52 “neither requires knowledge on a defendant's part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced .” (Carter, supra, 36 Cal.4th at p. 1182.)
Finally, [Petitioner] contends the instruction was erroneous because the court excluded evidence that [Petitioner] had, through counsel, “offered to make himself available in Los Angeles should his presence be required by investigators-a fact vitiating an inference [Petitioner] ‘fled' to avoid arrest.” This contention has no merit either. First, [Petitioner] offers no argument or legal authority to suggest the court's evidentiary ruling was erroneous, and so we need not consider the point. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Second, there was in any event no error in the evidentiary ruling. [Petitioner] is referring to a letter from then-defense counsel Al Stokke to Detective Griggs in October 1988, apparently offering to make [Petitioner] available in Los Angeles if needed. But Mr. Stokke had told police, just a few hours after the murders, and again at a later meeting among Detective Griggs, [Petitioner] and Mr. Stokke, that [Petitioner] would not make any statement. The trial court ruled that if the defense adduced the statement from Mr. Stokke's letter, the prosecutor could bring out Mr. Stokke's previous statement that [Petitioner] would not talk to the police; otherwise the jury would be misled into inferring that [Petitioner] was cooperating with the police. Defense counsel then apparently chose not to adduce the letter or any testimony about it. There was no error in the trial court's ruling.
[Petitioner] repeatedly contends the flight instruction provided the jury with an improper basis from which to infer [Petitioner] “had a culpable mental state at the time of the offense.” But the Supreme Court has repeatedly held otherwise. (People v. Welch (1999) 20 Cal.4th 701, 757 [“‘[T]he flight instruction “[does] not address the defendant's mental state at the time of the offense and [does] not direct or compel the drawing of impermissible inferences in regard thereto”'”]; see also People v. Smithey (1999) 20 Cal.4th 936, 983, citing cases.)
In sum, it is error to instruct on flight when there is no evidence of flight. (People v. Kessler (1968) 257 Cal.App.2d 812, 815.) Here, there was evidence of flight. Flight requires “‘“a purpose to avoid being observed or arrested”'” (Avila, supra, 46 Cal.4th at p. 710), and the evidence we have described easily permits that factual determination. (See Abilez, supra, 41 Cal.4th at p. 522 [“‘the instruction did not assume that flight was established, leaving that factual determination and its significance to the jury'”]; cf. Carter, supra, 36 Cal.4th at pp. 1182-1183 [“even if we were to conclude the instruction should not have been given, any error would have been harmless. The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it”].) There was no error.(Dkt. No. 103, Lodgment 8 at 126-28 (footnote omitted)).
b. Analysis
Here, there was undisputed evidence at trial that Petitioner left the country with his wife in a 57-foot yacht shortly after the murders, which occurred in March 1988. Petitioner's wife made a deposit on the yacht in January 1988 and purchased it in April or May 1988. (18 RT at 6708-11). After the purchase, Petitioner and his wife took the yacht to a South Carolina marina to have equipment installed. (7 RT at 3040-42, 3055-58). In August 1988, Petitioner unexpectedly expressed a “sense of urgency” and asked that the work on the yacht be expedited. (7 RT at 3059-60). As soon as the work was completed, Petitioner and his wife left the marina without making their destination known.
In 1991, after Petitioner failed to make payments on the yacht, Frank Magee was hired by the Maryland National Bank to repossess the yacht. (19 RT at 6989). While Magee was searching for the yacht, he spoke with Petitioner on the phone, who told him he would never find his boat. (19 RT at 6989). Several weeks later, Magee located the yacht in the Rio Dulce River in Guatemala and repossessed it for the bank. (19 RT at 6989).
In closing argument, the parties disputed whether the evidence demonstrated that Petitioner “fled” because of the murders, demonstrating a consciousness of guilt. (See 23 RT at 8783-85, 8824-25, 8843-44).
To the extent that Petitioner claims there was insufficient evidence to support a flight instruction under California law, this claim is not cognizable on federal habeas review. See Houston v. Roe, 177 F.3d 901, 910 n.3 (9th Cir. 1999) (finding argument that flight instruction was inappropriate under California law was beyond the scope of federal habeas review); see also Menendez, 422 F.3d at 1029 (“Any error in the state court's determination of whether state law allowed for an instruction in this case cannot form the basis for federal habeas relief.”).
Moreover, the evidence reasonably supported the inference that Petitioner's purchase of the yacht was part of a larger plan to murder the Thompsons and then have an escape plan should he become a suspect in the murders. And, as the flight instruction explicitly stated, the evidence was “not sufficient in itself to establish his guilt” and whether the evidence showed a consciousness of guilty was “for [the jury's] determination.” (Dkt. No. 103, Lodgment 8 at 124). The Ninth Circuit has repeatedly confirmed the constitutionality of similar flight instructions under similar factual circumstances. See, e.g., Hawkins v. Horal, 572 Fed.Appx. 480, 481 (9th Cir. 2014) (holding flight instruction that limits “how the jury could use such evidence by instructing jury that it was to determine whether flight occurred and how much weight to assign it, and that flight, if proved, may be considered in light of all other proved facts and was insufficient on its own to prove guilt” satisfied due process) (internal quotation marks omitted); Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002) (“[F]light instruction which clarified that flight alone is insufficient to establish guilt ... did not direct the jury to ignore [defendant's] explanation for his flight” and did not violate due process);
McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994) (instructing on flight was proper even though there was an issue as to the identity of the person fleeing where the prosecution made a strong showing that it was the defendant who fled). In short, Petitioner has failed to show that the flight instruction “by itself so infected the entire trial that the resulting conviction violates due process.” Waddington, 555 U.S. at 191 (internal quotation marks omitted).
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and Ground Fourteen does not warrant federal habeas relief.
H. Prosecutorial Misconduct
In Grounds Fifteen and Sixteen, Petitioner raises claims of prosecutorial misconduct.
1. Federal Law
Federal habeas review of prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). “The relevant question is whether the prosecutors' [misconduct] so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation marks omitted); see also Greer v. Miller, 483 U.S. 756, 765 (1987) (stating that prosecutorial misconduct must be “of sufficient significance to result in the denial of the defendant's right to a fair trial”) (internal quotation marks omitted). A prosecutor's misconduct is reviewed in the context of the entire trial record. Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974). Thus, the relevant inquiry on habeas review is whether the prosecutor's actions were improper and, if so, did they render the trial “fundamentally unfair.” Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000).
2. Misconduct During Trial
In Ground Fifteen, Petitioner contends that the prosecutor committed “prejudicial misconduct” by failing to “fully and fairly present the evidence” at trial. (Petition at 12). He argues that the prosecutor “failed to produce evidence promised” during his opening statement and violated the trial court's order by eliciting testimony and misrepresenting facts about Petitioner's alleged bankruptcy fraud. (Petition at 12).
Respondent contends that part of Ground Fifteen is procedurally defaulted from federal review because the California Court of Appeal found that Petitioner forfeited some of the claims by failing to object to the alleged misconduct. (Ans. Mem. at 105-06). Again, there may be merit to this argument, but the Court chooses to bypass the procedural default issue at this time because the claim clearly fails on its merits. See Flournoy, 681 F.3d at 1004 n.1; Franklin, 290 F.3d at 1232.
a. The California Court of Appeal Opinion
On appeal, the California Court of Appeal examined in detail Petitioner's claims of misconduct during opening statement and found no misconduct occurred:
[Petitioner] cites nine instances of alleged misconduct in the prosecutor's opening statement.
i. The first three claims of misconduct
[Petitioner's] first three claims of misconduct are based on the following portion of the prosecutor's opening statement. The prosecutor referred to Allison Triarsi and her parents, Phyllis and Anthony Triarsi, neighbors who could look down on the crime scene area, and said:
“And what they will tell you is that after a volley of several gunshots had been levied, presumably against Mickey Thompson-because of the autopsy findings, it's presumable that Mickey Thompson was shot multiple times before the coup d' gras [sic] shot.
“As a matter of fact, the evidence will show that's exactly what happened based on the witness's observations. As he stood at the top of the driveway, the other gunman shot at the van. The van had several bullet holes in it. Trudy Thompson was either pulled from or fell out of the van. She then got down to her knees.
“The injuries that she sustained indicate the following: she was crawling down the driveway. It is a very, very steep driveway. She was
crawling down that driveway for her life. All of her acrylic fingernails began breaking off. She was skinning and scraping her knees. She was in a dress that day.
“The second gunman followed Trudy Thompson all the way down the driveway; gun in hand covering her; but he didn't kill her yet. That will become incredibly important in this trial. He didn't kill her yet. Mickey Thompson, though shot several times-Mickey Thompson ultimately suffered seven separate gunshot wounds. Seven. ...
“And he was shot several times in the abdomen; in the hips; in the buttocks; through the arm. But he was kept alive. And the evidence will show that at any point at any time either of the gunmen could have put Mickey Thompson down like that, one shot to the head would do it. But they didn't. He was disabled, but he was kept alive.
“Meanwhile Trudy Thompson was being covered by the other gunman. And once they were in a position that they could see each other and Mickey Thompson could clearly watch, the second gunman put the gun to the back of Trudy's head and fired a bullet through her brain. The evidence will show that Mickey Thompson's last vision on this planet was that of his wife being executed.
“[T]he second gunman then screwed that .9 millimeter pistol into the left ear of Mickey Thompson, literally his left ear and fired a bullet that passed completely through his brain and he was killed. Witnesses saw this, then watched as the gunman [sic] jumped on bicycles and began to pedal off. ...”
Based on that opening statement, [Petitioner] complains (1) that Phyllis and Anthony Triarsi did not testify at trial, and that no witness testified to “[the prosecutor's] ‘dance of death.'” He also asserts (2) the prosecutor “failed to present any evidence that ‘Trudy died first' or the shooter held her head up by her hair before shooting her.” And he contends (3) there was no evidence a gun was “screwed into [Mickey Thompson's] left ear,” or that he “was shot to incapacitate him but kept alive so he could watch Trudy die.”
First, we do not see misconduct in the prosecutor's mention of Allison Triarsi's parents as anticipated eyewitnesses, along with Miss Triarsi. Nor can we see what possible prejudice could flow from a prosecutorial decision to produce only one witness instead of three. And, contrary to [Petitioner's] assertions, the prosecutor said nothing about a “dance of death” in his opening statement.
Second, the prosecutor at no point suggested in his argument that “the shooter held [Trudy's] head up by her hair before shooting her.” [Petitioner's] insinuation that the prosecutor said this is incorrect.
Third, Allison Triarsi's testimony was substantially consistent with the prosecutor's argument that Mickey Thompson was kept alive to watch his wife die. As more fully described in part 4.a. of the facts, ante, Miss Triarsi testified there was a man with Mickey Thompson who “had a gun and was directing him and making him go in certain directions”; she heard Mickey Thompson saying, over and over, “Please don't kill my wife,” a statement directed to another man “at the bottom of the driveway who had a gun and coming towards Trudy”; it appeared Mickey Thompson was trying
to go to his wife, and the gunman was “hold[ing] him at bay with an outstretched hand with the gun in his hand”; and then the gunman near Trudy shot her in the head. Miss Triarsi testified that she did not remember what the gunman who shot Trudy did next, “because the next thing I remember Mickey is getting shot.” This is plainly evidence that “Trudy died first.” (And, the medical examiner, Dr. Lisa Scheinin, indicated the gunshot wound to Mr. Thompson's head was most likely the last of the wounds inflicted on him.)
Fourth, as for the prosecutor's statements that the gunman “screwed that .9 millimeter pistol into his left ear and fired a shot through Mickey's brain,” respondent acknowledges this was an overstatement. As Dr. Scheinin testified, there was “absolutely” no evidence that anyone “screwed a gun in to [Mickey Thompson's] ear and fired a bullet.” But Dr. Scheinin also testified that the gunshot wound was “consistent with someone putting a weapon close within inches behind Mr. Thompson's ear and firing it.” We consider this inconsistency between the prosecutor's opening statement and the evidence actually adduced to be inconsequential.
Finally, in his reply brief, [Petitioner] claims respondent conceded misconduct by failing to address a claim he made in his opening brief (in connection with his argument that “nobody testified to [the prosecutor's] ‘dance of death' ”). [Petitioner] asserted, without elaboration, that “[n]o witness testified” to the following statement of the prosecutor (made while showing photographs of the crime scene and arguing this was a professional hit, not a robbery, and that the Thompsons could see each other): “All the blood Mickey Thompson was losing at the top of the driveway will suggest that he was crawling in circles in this area (indicating),” and “ultimately was
shot to death right where the white sheet is.” [Petitioner] does not explain how this is in any way significant, and again, any inconsistency with the evidence is inconsequential. There was no misconduct.
ii. The bankruptcy fraud claim
In his opening statement, the prosecutor explained that, after [Petitioner] declared bankruptcy, Mr. Thompson was the most aggressive of [Petitioner's] creditors, and as a creditor he had two options. The prosecutor continued:
“And these are important options to understand . . .. [¶] ... Option 1, pay me what you owe me. That's all I ask for. You can do whatever you want to with the rest of the creditors. But pay me what you owe me and then go on about your business. . . . [¶] Option 2, pay me what you owe me. And I'm going to show the bankruptcy court that you have engaged in fraud, deceit, lying on the court, and the bankruptcy court won't discharge any of your debt. [¶] Guess which one Mickey chose? Option 2. That was the objection that Mickey filed with the bankruptcy court. That case was supposed to go to trial on March 18th. Mickey Thompson was killed two days beforehand.”
[Petitioner] contends this argument was misconduct because “[t]he prosecutor failed to prove [Petitioner] committed bankruptcy fraud.” The short answer to this claim is that the prosecutor did not say he would prove [Petitioner] committed bankruptcy fraud; he said that Mr. Thompson intended to offer proof to the bankruptcy court that [Petitioner] had engaged in fraud. And the prosecution presented considerable evidence of
[Petitioner's] improper actions during the bankruptcy. For example, and as more fully described in part 1 of the facts, ante, when Jeffrey Coyne was appointed bankruptcy trustee, he discovered “there was no operating company to run,” as “the operating part” had been sold to a company owned and operated by [Petitioner's] wife and another person. Mr. Coyne found “lots of gaping holes” and determined that the transfer “was all done for the purpose of moving the business without paying the creditors,” the most vocal of whom was Mr. Thompson. Mr. Coyne testified to his belief the activity of [Petitioner], his wife, and the entities in the transaction was fraud affecting Mr. Thompson's rights as a creditor.
In short, while defendant was not convicted of bankruptcy fraud-he was convicted of filing false loan documents, a fact never published to the jury-the prosecutor did not say otherwise, and there is obviously no misconduct.
iii. Deputy John Williams
[Petitioner] next cites as misconduct this part of the prosecutor's opening statement:
“I told you about that prized Mercedes, that 1982 SL coupe. Mickey Thompson went after that as a personal asset. It was ultimately seized by authorities. We will introduce you to Deputy John Williams who is now a public official in Orange County; no longer a serving officer. But he is a serving public official, an elected official.
“He will tell you that when he walked up to notify [Petitioner] that he was going to have to seize his car, he had legal documentation that entitled him, John Williams, to seize the car, [Petitioner] flew into one of his famous violent rages. He flew into a rage. He turned beet red. His neck got thick. Every vein on his face started sticking out. And he screamed, ‘He doesn't know who he's fucking with.
He's fucking dead ... if he thinks he's going to take my car. The car was, in fact, taken.”
[Petitioner] cites this as misconduct, saying the prosecutor “failed to prove [Petitioner] made threats in the presence of Deputy John Williams.” He is wrong. Mr. Williams testified just as the prosecutor said he would. But he also said his best recollection was that the incident occurred in late 1987 or early 1988, while other witnesses and documentation showed a levy occurred in June or July 1986. [Petitioner] says Mr. Williams's testimony was “false” because [Petitioner] was in bankruptcy since the fall of 1986, so the car could not have been seized in 1987 or 1988 to satisfy Mr. Thompson's judgment. But mistaken testimony is not “false” testimony. (Indeed, Mr. Williams was adamant, even when confronted with evidence that a levy occurred in 1986, that the incident he described “did not occur in August of 1986,” and that he was “never told, even by the [Petitioner], he was in bankruptcy or I wouldn't have taken his car.”) There is simply no support for [Petitioner's] assertion that the prosecutor “failed to prove [Petitioner] made threats in the presence of Deputy John Williams,” much less that the prosecutor's opening statement was “knowingly false and made in bad faith” and a “deliberate misstatement.” There was no misconduct.
iv. Allegedly false promises of testimony
Next, [Petitioner] makes several claims that the prosecutor “falsely promised” testimony or evidence that was not presented.
First, [Petitioner] again returns to the prosecutor's statement (see pt. i, ante) about the bullet through Mickey Thompson's brain, killing him. The prosecutor continued: “Witnesses that saw this, then watched as the gunman [sic] jumped on bicycles and began to pedal off.” [Petitioner] complains that “[n]obody testified to seeing the gunmen jump on bicycles and pedal off.” That is true, but inconsequential. Witnesses heard the gunfire, and just after that Lance Johnson saw two men on bicycles riding down the Thompson driveway towards Woodlyn Lane. And Allison Triarsi heard the clicking of the bicycles, “[l]ike a ten speed bike,” moving the back way out of the Thompson property. Plainly, “the variance between prosecutorial statement and actual proof is minor” and an inference of misconduct cannot be drawn.
Next, [Petitioner] asserts the prosecutor “falsely promised” the evidence would show [Petitioner] planned the murders, “but no such evidence was presented.” This is a frivolous contention as to which [Petitioner] does not elaborate, and we do not consider it further.
[Petitioner] also asserts misconduct in the final lines of the prosecutor's opening statement, where the prosecutor said: “He [Petitioner] would see that Mickey Thompson was killed before he ever got a dime of his [Petitioner's] money. And how do we know that? Because we got it from the absolute, most reliable source. [Petitioner] said so.” This is misconduct, [Petitioner] says, because “no confession was presented to the jury.” This
claim is nonsense. The prosecutor did not claim that [Petitioner] confessed. The prosecutor presented testimony from Gregory Keay that [Petitioner] said “Mickey was out to get all of his money and before that would happen, he would have him wasted.” And Joel Weissler testified that he heard [Petitioner] tell Mr. Thompson, “You will never see a cent of it. I'm going to hurt you and your family.” That is just what the prosecutor said, and [Petitioner's] claim to the contrary is disingenuous at best.
Finally, [Petitioner] asserts misconduct in the prosecutor's statement that: “And through this whole thing every single witness, every witness who heard anything, from the Johnsons to the Hackmans to the Triarsis, every witness that heard anything heard the same thing from Mickey
Thompson. ... Mickey Thompson repeated over and over, ‘Please, please don't hurt my wife.''' [Petitioner] points out that the Hackmans did not testify, and neither did the Triarsi parents. Again, this is inconsequential.
Three of the witnesses mentioned did testify, and they all said what the prosecutor said they would say. As noted above, we do not see misconduct in the mention of anticipated witnesses who are not produced, when other witnesses provide the promised testimony. There was no misconduct.
v. Ronald Stevens's photo identification
In his opening statement, the prosecutor talked about Ronald and Tonyia Stevens seeing [Petitioner] outside their home and their report of that incident to the police years later. The prosecutor continued: “Ron Stevens was asked if he would look at a series of photographs first. He said, sure, I'll look at a series of photographs and see if I can identify the person. He looked at the photographs and he pointed to a particular picture.”
[Petitioner] contends this was misconduct, because the prosecutor “knew at the time he made this statement it was false because he possessed a recording of that identification procedure, during which Ron indicated he was unable to narrow his choice down to fewer than three men . . ..”
We cannot find misconduct on this record. Mr. Stevens testified that when he was shown the photographs, he “was asked if [he] recognized anyone in the picture as being the person in that car,” and he said, “Yes, I did.” He said he recognized “No. 3, the top right corner,” and that was [Petitioner]. Mr. Stevens was then asked on cross-examination, “Do you recall . . . that you actually weren't really able to draw it to No. 3, you actually narrowed it down to three out of the six?” and he replied, “No, I don't.” The defense then played audio recordings in court of portions of the photographic identification procedure. A transcript of the audio recording (defense exhs. Z-1 & AA-1) shows Mr. Stevens saying, “[I]t was this color of hair but it was this type of nose, but was that type of complexion. I couldn't be positive,” and, “Well, these three look similar,” and “1, 5 and 3 . . . look similar.” Detective Lillienfeld then says, “Yeah, but the guy you saw in the wagon that day most resembles who in this photo array now?” Mr. Stevens replies, “Number 3 or . . . [¶] Oh, okay. [¶] 1, 5 or 3 would be- if I saw them in person.”
The prosecutor's opening statement was completely consistent with Mr. Stevens's testimony and, while the transcript shows uncertainty (which is why, as [Petitioner] points out, Detective Lillienfeld suggested a live lineup), it apparently also shows [Mr. Stevens] did point to [Petitioner's] photo. In any event, there could be “‘no conceivable prejudice'” where
[Petitioner] was able to confront Mr. Stevens and challenge his testimony as [Petitioner] did here.
vi. Assertions of false representations
[Petitioner] next makes three claims of allegedly false assertions or promises in the opening statement.
First, in describing [Petitioner's] financial actions shortly before the murders, the prosecutor said: “[Petitioner] had been hiding a series of investments in his wife Diane's name. You'll see the name Diane Goodwin. But we will also introduce evidence that shows beyond a reasonable doubt that [Petitioner] was doing that on purpose. Why? To hide his assets from Mickey Thompson; to hide those assets from the Bankruptcy Court; and to set in motion his escape plan when he killed Mickey. [¶] He sold Whitehawk investments. And then another investment Desert Investors was also in Diane Goodwin's name. Within days of the first sale, he sold all of his interest in those, the second one. So what did he do with all this money?”
[Petitioner] contends the prosecutor “falsely asserted ‘[Petitioner] sold Whitehawk investments,” because the evidence showed “Whitehawk was never sold.” This is another completely inconsequential point. It is true the Whitehawk investment itself was not “sold.” (Dolores Cordell testified it was a real estate investment and she sought to bring returns from that investment into the bankruptcy estate; she testified she was able to bring the Whitehawk asset into the estate because she showed “the investment itself ... belonged in the estate.”) But in substance, the prosecutor showed
what he said he would show: the Whitehawk investment was purchased with commingled funds of the Goodwins, but then distributions from the Whitehawk investment in 1988 were made in the name of Diane Goodwin. The parties stipulated there was a check for $365,000 payable to Diane Goodwin from J.G.A. Group dated May 6, 1988, containing the notation, “distribution from Whitehawk cashier's check.” And Karen Stephens-Kingdon testified that $300,000 of that $365,000 was transferred to Diane Goodwin's account in another bank; some $275,000 of that money was used to purchase gold coins, and another $10,000 was wired offshore. That this money was from a distribution and not a sale is unimportant. There was no misconduct.
Second, [Petitioner] cites as misconduct the prosecutor's use of the words “skimming” and “stolen” in his description of [Petitioner's] actions that precipitated Mickey Thompson's lawsuit. The prosecutor described the inception of the dispute: Mr. Thompson had to “front more cash and more cash” for the venture's first racing event, despite [Petitioner's] obligation to furnish 70 percent of the capital. The prosecutor continued: “The evidence will show the reason Mickey Thompson was fronting all the money is because [Petitioner] was cheating him. He was [siphoning] money off the top; skimming money off the top of the company; and skimming money out of the pocket of Mickey Thompson.” So Mr. Thompson sued him, and obtained a judgment of almost $800,000. The prosecutor said the judge found that in eight months of doing business together, [Petitioner] “had stolen over $500,000-$512,000 to be exact-from Mickey Thompson.”
[Petitioner] cites testimony that the issues in the dispute were over [Petitioner's] refusal to advance cash to put on events and his plan that Mr.
Thompson “would have no say in, or revenue from, the operations,” and that there was an issue raised of contract interpretation. These issues, [Petitioner] asserts, “do not amount to ‘skimming' or ‘stealing.'” Perhaps not, in a technical legal sense. But when one business partner refuses to contribute his agreed 70 percent share, jeopardizing the racing event and thus forcing the other partner to put up the money (not to mention planning that Mr. Thompson would have no revenues from the operation of their companies), it is hard not to think of this conduct, in the colloquial sense, as stealing. The prosecutor's language was well within the “‘broad scope of permissible argument.'”
Third, [Petitioner] asserts misconduct in the prosecutor's statement that “the evidence in this case will show that [Petitioner] was never ever, ever going to pay Mickey Thompson what he owed him.” [Petitioner] says the evidence showed that in the weeks before the murders, [Petitioner's] and Mr. Thompson's attorneys had worked out a settlement, and [Petitioner] signed that settlement agreement after the Thompsons were murdered. This, [Petitioner] says, makes the prosecutor's statement “false[ ].” On the contrary, the evidence presented reasonably could be viewed just as the prosecutor said. Dolores Cordell testified that [Petitioner] repeatedly expressed his willingness to accept settlement terms, only to renege at the last minute. The testimony [Petitioner] characterizes as showing that the settlement “would have paid Thompson the entire judgment” actually was that the settlement said “basically that Mickey Thompson's debt would not be dischargeable in the bankruptcy.” [Petitioner] signed the settlement after the murders, and Phillip Bartinetti testified that “to this day” the judgment has never been paid by [Petitioner]. No misconduct is shown.
vii. The Insport agreement
As the prosecutor described it, the so-called “Insport agreement” was a contract that gave the signatory the unique ability to put on motor sports races with certain drivers in certain venues. [Petitioner] was a signatory to the Insport agreement, which was worth “tens of thousands, potentially hundreds of thousands of dollars to the holder” of the contract. In his opening statement, the prosecutor said: “In order to try to satisfy his judgment, Mickey Thompson went after the Insport agreement. [Petitioner] fought it. [Petitioner] lost.”
[Petitioner] contends the last quoted statement was one of “numerous falsehoods” in the prosecutor's opening statement. He tells us the evidence showed (1) the Insport agreement became an asset of the bankruptcy estate and was put up for bid; (2) Diane Goodwin and Charles Clayton were the highest bidders, not Mr. Thompson, (3) “so it was not true that [Petitioner] ‘lost' the Insport agreement to Thompson.” The first part of [Petitioner's] description of the evidence is correct, but his conclusion is incorrect.
The Goodwin/Clayton enterprise (SXI, of which defendant was president) was the highest bidder for the Insport agreement, and purchased it with Bankruptcy Court permission. But SXI failed to make all the payments due to the Bankruptcy Court for the Insport agreement, and the trustee began taking steps to repossess it. Dolores Cordell testified that in December 1987, there was a hearing, and the court “essentially put the Insport agreement up to bid again.” According to Ms. Cordell, several parties bid, including the Goodwins, and Mickey Thompson won that bid. Ms. Cordell's recollection was that he paid $500,000, in December 1987.
(The trustee also testified that at no point during his tenure as the bankruptcy trustee did [Petitioner] ever own the Insport agreement “free and clear.”) This evidence clearly supports the prosecutor's statement that “Mickey Thompson went after the Insport agreement,” and “[Petitioner] fought it. [Petitioner] lost.” [Petitioner's] claim that Ms. Cordell “had to admit she was wrong” is not borne out by the record. There was clearly no misconduct.(Dkt. No. 103, Lodgment 8 at 130-41 (footnote and internal citations omitted)).
Similarly, the state appellate court found no misconduct occurred regarding the prosecutor's references to Petitioner's bankruptcy proceedings.
[Petitioner] sought to prevent the prosecutor from eliciting any testimony about bankruptcy fraud in connection with [Petitioner's] conduct during the bankruptcy proceedings. (In federal proceedings, [Petitioner] had been charged with many counts of bankruptcy fraud and filing false loan documents, but was convicted only of filing false loan documents.) Thus, [Petitioner] objected to bankruptcy trustee Jeffrey Coyne expressing any opinion about whether the transfer of assets from [Petitioner's] company (ESI) to his wife's enterprise (SXI) during the bankruptcy was fraudulent. The trial court overruled that objection, but ordered the prosecutor to “stay away from fraudulent activity as separate criminal conduct.” Before Karen Stephens-Kingdon testified about the Goodwins' financial transactions, defense counsel again asserted there should be no reference to bankruptcy fraud, and the prosecutor agreed there would be no mention of bankruptcy fraud.
The prosecutor scrupulously complied with the court's order. Nonetheless, [Petitioner] asserts that the prosecutor “repeatedly used the words ‘fraud' and ‘fraudulent' when questioning witnesses about the bankruptcy proceedings,” and says “[t]his was misconduct.” In fact, [Petitioner's] record citations for this claim of misconduct are completely devoid of any instance of the prosecutor's use of the words “fraud” or “fraudulent.” The prosecutor used the word “fraud” once-in an instance not cited by [Petitioner]-when he asked Mr. Bartinetti whether Mr. Thompson, when he objected to [Petitioner's] discharge in bankruptcy, was “claiming fraud and/or deceit on the part of [Petitioner].” (Defense counsel's objection on grounds of hearsay and lack of foundation was sustained.) Indeed, our review of the record shows the only reference by the witnesses to “fraud” came from Mr. Coyne, when the prosecutor asked him how he would describe “the activity between [Petitioner]; his wife Diane Goodwin; E.S.I.; S.X.I.; Chuck Clayton; and the Insport agreement,” and Mr. Coyne answered, “I hate to use the ‘F' word, but fraud.” As noted above, this testimony (not cited by [Petitioner]) was specifically permitted by the court.
The witnesses properly testified to events that occurred during the bankruptcy proceedings and to [Petitioner's] financial dealings.
In short, [Petitioner's] claim that the prosecutor's “obfuscation regarding ‘fraud' was intended to confuse the jurors and convince them [Petitioner] had committed crimes in connection with the bankruptcies” has no basis whatsoever in the record.(Dkt. No. 103, Lodgment 8 at 141-42 (footnote omitted)).
On appeal, Petitioner also claimed that the prosecutor engaged in misconduct during the examination of witnesses and, in several instances, during his closing argument. Petitioner has not raised those claims in this Petition. Nevertheless, the Court notes that the California Court of Appeal found no misconduct occurred during examination or closing argument, and Petitioner has not attempted to explain how the state appellate court's ruling was objectively unreasonable.
b. Analysis
Petitioner argues that the prosecutor committed misconduct in several instances during his opening statement by referring to witnesses who later failed to testify and evidence that was not proffered at trial. “A prosecutor's misleading and inflammatory arguments may violate a defendant's due process right to a fair trial.” Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008). Comments made during opening statements may be “so prejudicial that a finding of error, or even constitutional error, would be unavoidable.” Frazier v. Cupp, 394 U.S. 731, 736 (1969). However, “[i]mproper argument does not, per se, violate a defendant's constitutional rights.” Runningeagle v. Ryan, 686 F.3d 758, 781 (9th Cir. 2012) (internal quotation marks omitted). A constitutional violation occurs only if the “prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (internal quotation marks omitted). Thus, the Supreme Court has held that “not every variance between the advance description” of the evidence given during opening statement and “the actual presentation constitutes reversible error.” Frazier, 394 U.S. at 736. When a prosecutor's opening statement is “no more than an objective summary of evidence which the prosecutor reasonably expected to produce” and “a proper limiting instruction has been given,” a “jury will ordinarily be able to limit its consideration to the evidence introduced during the trial.” Id.
Here, before opening statements were made, the trial court instructed the jury that “statements made by the attorneys during the trial are not evidence.” (6 RT at 2703). Before closing statements were given, the court again advised the jury that attorney statements were not evidence. (7 CT at 1959). A “jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000). Furthermore, Petitioner has provided the Court with “no reason to believe that the jury in this case was incapable of obeying the [trial court's] instructions.” Greer, 483 U.S. at 766 n.8; see also Boyde v. California, 494 U.S. 370, 384 (1990) (“[A]rguments of counsel generally carry less weight with a jury than do instructions from the court.”). Under these circumstances, there were sufficient admonitions to the jury that Petitioner's rights to due process and a fair trial were protected from any variance in the evidence described by the prosecutor in opening statement and that actually produced at trial. See Frazier, 394 U.S. at 735-36 (finding “[m]any things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance” and that limiting instructions on use of attorneys' statements were “sufficient to protect petitioner's constitutional rights”).
As for Petitioner's contentions that the prosecutor committed misconduct by eliciting testimony and misrepresenting facts about Petitioner's alleged bankruptcy fraud, that claim is without a factual basis. After the state appellate court reviewed the record, it found no instances in which the prosecutor improperly referred to the Petitioner's financial dealings as “fraud” and, thus, concluded there was “no basis whatsoever in the record” to support a claim of misconduct. (Dkt. No. 103, Lodgment 8 at 141-42). Petitioner has offered no evidence to rebut this conclusion.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and Ground Fifteen does not warrant federal habeas relief.
3. Misconduct Prior to Trial
In Ground Sixteen, Petitioner asserts that there was “outrageous” governmental misconduct that “damage[ed] ... the trust and integrity of the judicial system.” (Petition at 12). He claims that the prosecutor “brought this action despite the absence of good evidence,” instead relying on “manufactured evidence” and at the direction of Detective Lillienfeld, who was simply “assist[ing] a private citizen in her personal vendetta against Petitioner.” (Petition at 13).
Respondent also contends that Ground Sixteen is procedurally defaulted from federal review because the California Court of Appeal found that Petitioner forfeited the claim by failing to object to any outrageous government misconduct at trial. (Ans. Mem. at 11718). Though there may be merit to this argument, the Court chooses to bypass the procedural default issue at this time because the claim clearly fails on its merits. See Flournoy, 681 F.3d at 1004 n.1; Franklin, 290 F.3d at 1232.
a. The California Court of Appeal Opinion
The California Court of Appeal described Petitioner's claim of “outrageous” misconduct by Detective Lillienfeld, as follows:
[Petitioner] repeatedly accuses Detective Lillienfeld of “perjury,” “lies,” “manufactur[ing] evidence,” and the like, based principally on the detective's search warrant affidavit of December 7, 2001, and other sworn testimony before the Orange County grand jury and at the April 2002 Orange County preliminary hearing, to the effect that a .9-millimeter Smith & Wesson firearm owned by [Petitioner] could have been the murder weapon. These statements were, according to Detective Lillienfeld, mistaken, and, according to [Petitioner], lies. The facts as revealed at trial were these.
In the December 2001 affidavit, Detective Lillienfeld averred that Dwight Van Horn, firearms examiner at the sheriff's crime lab, told him that the weapons used in the Thompson murders had “rifling characteristics of
six right lands and grooves,” and that the possible manufacturers included Smith & Wesson, “with three character model numbers.” Federal firearm sales records indicated [Petitioner] had purchased a Smith & Wesson, model 469, in 1984, and the detective's affidavit stated that “[t]his pistol falls within the rifling characteristics of the murder weapon, according to Deputy Dwight Van Horn .” Similarly, the detective testified to the grand jury that [Petitioner's] firearm could have been a murder weapon. These statements were, as the detective later testified in the trial court, incorrect.
At the trial, [Petitioner] called Detective Lillienfeld as a defense witness, and sought to impeach him with previous false statements. This was based on Dwight Van Horn's ballistics memorandum, prepared shortly after the murders. The memorandum indicated that certain guns (which included [Petitioner's]) were specifically not included in the universe of possible guns that could have been used as the murder weapon, while Detective Lillienfeld testified in Orange County (and averred in his affidavit) to the “exact opposite.” The prosecutor objected, contending Detective Lillienfeld made a mistake and misinterpreted Mr. Van Horn's ballistics report.
Defense counsel contended (and continues to do so on appeal) the claim of mistake was “incredible” and that, “[b]ased largely on this falsehood, [Petitioner] was arrested for the Thompson murders ....” (No evidence is cited to support the claim that [Petitioner's] arrest was “[b]ased largely” on the detective's statements about the gun; the search warrant affidavit extends to some 54 pages.)
The trial court held a [California] Evidence Code section 402 hearing to determine whether there was evidence indicating Detective Lillienfeld “committed a prior act involving moral turpitude,” as such evidence would be relevant to challenge the detective's credibility. At the hearing, Detective Lillienfeld testified that in July 2001, the sheriff's department tested a Smith & Wesson three-digit model firearm, and the report showed “five lands and grooves with a right twist.” Mr. Van Horn did not tell him that the murder weapon had six lands and grooves, and his impression from reading Mr. Van Horn's memorandum was “that a Smith & Wesson .9 millimeter pistol with a three-character model number was a potential murder weapon in this case.” Detective Lillienfeld did not look into any database to determine whether a Smith & Wesson three-digit model number produced five or six lands and grooves.
The subject line of Mr. Van Horn's memorandum was: “.9 Millimeter Pistols to be Eliminated as Suspect Guns.” The list included Smith & Wesson three-digit model numbers, and it also included Glocks, as well as weapons that could have been eliminated “just by virtue of sight, for instance, machine-type guns, machine-gun type Uzis, and Mack Tens.” (A postscript to the memorandum indicated that “maybe we can eliminate these [Uzis, Mack Tens, etc.] with a photo line-up.”) Detective Lillienfeld was asked if he was aware that “bullets fired from a Glock look completely distinguishable from other firearms,” and responded, “No.” Detective Lillienfeld interpreted the subject line of the memorandum “to mean that the below list of guns should be brought to me I can-‘me,' meaning Dwight Van Horn, the ballistics expert. I can conduct ballistics exam on them and eliminate them as being potentially the murder weapon.” Detective Lillienfeld agreed that “it sound[ed] like Mr. Van Horn was saying we can
eliminate these guns [the Uzis, etc.] based on a photo line-up; we can eliminate these guns [the Smith & Wessons, etc.] based on ballistics,” and that was how he was testifying when he said that “it appeared that these guns were in the possible universe of guns that needed to be eliminated as suspect weapons.”
Detective Lillienfeld also testified that, when he spoke to Mr. Van Horn, “I asked him specifically about that memo you're holding and asked him if those were all possible guns. And the response I got was, yes, those are all possible guns that were used in this crime.” Detective Lillienfeld said that no one advised him, before his testimony to the Orange County grand jury, “that the murder weapon was not a five land and groove.” Further, he was not aware that the July 2001 test of a Smith & Wesson three-digit model “would apply to all three-digit Smith & Wesson models.”
Detective Lillienfeld admitted testifying to the grand jury that the three-digit model Smith & Wesson registered to [Petitioner] could have been a murder weapon; that he put that information in subsequent affidavits; and that it was incorrect. He did not attempt to verify the information with Mr. Van Horn before testifying, and he did not attempt to check databases containing information on the general rifling characteristics of the guns. Detective Lillienfeld became aware of his mistake “I believe some time in 2001,” when [Petitioner's] appellate attorney identified the error “through a series of litigation in court . . ..”
Detective Lillienfeld also testified that the July 2001 test was on a weapon registered to [Petitioner]. The detective testified at the Orange County preliminary hearing in 2002, and he knew before he testified “that
the one-at least the one gun that [he] took from [Petitioner] that was a three-digit model Smith & Wesson was not the murder weapon.” He did not so state in his testimony at the Orange County preliminary hearing, but he was not asked that specific question. His understanding was that other threedigit models (other than the one tested) “could be in the universe of possible suspect guns.”
After Detective Lillienfeld's testimony, defense counsel argued that the jury should decide “whether or not that was a lie or just negligence.” The court ruled otherwise, observing that “I read [Mr. Van Horn's memorandum] the same way that the detective did,” and “I would interpret that the same way.” The court said, “I don't have the experience the detective does, but I certainly can read English,” and concluded, “just so it's clear, I mean there is really nothing in the record to indicate that this witness committed an act of moral turpitude which would bear on his credibility based on what I heard.”
In addition to the claim of perjury related to [Petitioner's] firearm, [Petitioner] recites, at length, other grievances about the investigation.
[Petitioner] asserts Detective Lillienfeld and the prosecutors used Gail Moreau-Hunter's “demonstrably false” statement that [Petitioner] confessed to her in order to prosecute [Petitioner]. He makes unsupported claims that Detective Lillienfeld “falsely testified” at the Orange County preliminary hearing “that Gail Moreau-Hunter had not attempted suicide.”
[Petitioner] asserts that Detective Griggs's investigation was “derailed” by Collene Campbell's interference. (Ms. Campbell complained
about Detective Griggs, and [Petitioner's] recitation is based on a memorandum Detective Griggs wrote about the investigation and Ms. Campbell's activities in connection with it. None of the facts [Petitioner] recites suggests the investigation was “derailed” by Ms. Campbell's activities.)
[Petitioner] asserts that Detective Lillienfeld “permitted Campbell to direct his investigation.” (Nothing is cited that supports this claim.)
He asserts without record authority that the Los Angeles District Attorney “attempted to inhibit all information that did not support the theory [Petitioner] was responsible for the Thompson murders.”
He asserts that Detective Lillienfeld “usurped power” by presenting his case to the Orange County District Attorney after the Los Angeles District Attorney rejected it in 1998, and his actions were “ratified by the OCDA and later by the LADA,” all of which “shock[s] the conscience and constitute[s] outrageous government misconduct.”(Dkt. No. 103, Lodgment 8 at 157-61 (footnote and heading omitted)).
The state appellate court rejected each of Petitioner's claims that Detective Lillienfeld's actions amounted to outrageous government conduct:
First, there is the claim of “perjury” in connection with [Petitioner's] firearm. As described above, the trial court heard Detective Lillienfeld's testimony on those points, and found “nothing in the record to indicate that this witness committed an act of moral turpitude which would bear on his
credibility . . ..” We are bound by that determination. As our recitation above shows, substantial evidence supported the trial court's credibility determination.
[Petitioner] insists it is “inherently improbable” that Detective Lillienfeld did not realize [Petitioner's] weapon could not have been the murder weapon. But “[t]o be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.” (Ibid.; see People v. Mayberry (1975) 15 Cal.3d 143, 150 [“To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.”].) This is not such a case.
Next, [Petitioner] contends Detective Lillienfeld and the prosecutors used “demonstrably false” statements from Gail Moreau-Hunter (that [Petitioner] confessed to her), in order to prosecute [Petitioner]. (Ms. Hunter testified at the preliminary hearing-but not at trial-to the effect that [Petitioner] told her he hired two black teenagers to carry out the murders.) [Petitioner's] idea of “demonstrably false” is not ours. [Petitioner] relies on medical records not in evidence for the proposition that Ms. Moreau-Hunter was “delusional” and therefore her preliminary hearing testimony was “inherently improbable and demonstrably false.” We will not make the leap from allegations (without evidentiary support) of severe mental illness to conclusions that testimony is “demonstrably false.” Nor will we assume that the prosecutors knew Ms. Moreau-Hunter's statements were false when she testified at the preliminary hearing, as the record is devoid of any such evidence. And, of course, [Petitioner] could not have been prejudiced by the
use of Ms. Moreau-Hunter's testimony at the preliminary hearing, as [Petitioner] was convicted at trial without it.
Next, [Petitioner] makes a convoluted argument that Detective Lillienfeld “usurped power,” “engaged in forum-shopping,” and acted as “a rogue officer proceeding under the political influence of a private citizen, Campbell” when he “expand[ed] his investigation into Orange County” and presented his case to the Orange County District Attorney after the Los Angeles District Attorney rejected it in 1998. This claim suffers from the same flaws as [Petitioner's] other claims of misconduct.
First, [Petitioner] cites no evidence whatever for the assertion that Detective Lillienfeld acted at the behest of Collene Campbell. Second, [Petitioner] cites [California] Penal Code section 830.1, and other authorities that likewise have no pertinence, to support his claim that the detective “lacked authority to expand his investigation into Orange County.” Section 830.1 provides just the opposite: it states, among other things, that a deputy sheriff is a peace officer and his authority extends “to any place in the state” as to any public offense committed “within the political subdivision that employs the peace officer ....” (Pen. Code, § 830.1, subd. (a)(1).) Third, [Petitioner] cites no authority on “forum-shopping” by a peace officer, and his recitation of the law on venue is simply inapt; the venue issue was resolved long ago in [Petitioner's] favor. (Indeed, the Court of Appeal in that case mentioned [Petitioner's] earlier claims of conflict of interest in the Orange County district attorney's personal relationship with Mickey Thompson's sister, Collene Campbell, noting that it had allowed [Petitioner] “to pursue his assertion below that Orange County lacked any disinterested purpose in prosecution.”
In short, [Petitioner] has made no showing that Detective
Lillienfeld's conduct consisted of anything other than disinterested activity aimed at bringing the person responsible for the Thompson murders to account. The same is true of [Petitioner's] claim that prosecutors in both counties “ced[ed] essential prosecution functions to Campbell, and prosecut[ed] [Petitioner] based on Campbell's political power, influence and connections rather than untainted facts obtained in an unbiased manner.” This is nothing but hyperbole, without support in any evidence.
Finally, we note again that “a showing of prejudice to [Petitioner's] right to a fair trial [is] required” to sustain a due process claim of outrageous government conduct, and “the absence of such a showing preclude[s] dismissal as a sanction for prosecutorial misconduct.” (Uribe, supra, 199 Cal.App.4th at p. 861.) None of [Petitioner's] allegations supports the notion that he received anything other than a fair trial.(Dkt. No. 103, Lodgment 8 at 162-64 (some internal citations omitted)).
b. Analysis
Although the exact nature of Petitioner's claim in Ground Sixteen is difficult to decipher, Petitioner appears to argue that the prosecutor's decision to charge him with the Thompsons murder was “outrageous” because it was based on “manufactured evidence” by a police detective “that shocks the conscience.” (Petition at 12-13). First, in making charging decisions, a prosecutor's discretion “is almost absolute.” United States v. Miller, 722 F.2d 562, 564 (9th Cir.1983); see also McCleskey v. Kemp, 481 U.S. 279, 296 (1987) (holding prosecutors have “wide discretion” in charging decisions); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”). Second, the Supreme Court has held that prosecutorial charging decisions are “particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985). Thus, “[a]bsent any allegation that the prosecutor's charging decision was based on an unconstitutional motive such as gender or race,” it is not reviewable in federal court. United States v. Soto, 1 F.3d 920, 923 (9th Cir. 1993).
Here, Petitioner has not alleged any unconstitutional motive for the prosecutor's decision to charge Petitioner with the Thompson murders. Rather, he seems to suggest that the evidence against Petitioner did not justify charging him because it was simply manufactured by a police detective. This claim is completely unsupported by any evidence or rational argument. Petitioner has not demonstrated that Detective Lillienfeld or any other police agents presented false evidence or perjured testimony in order to convince the prosecutor to charge Petitioner. Moreover, as this Court already determined, there was more than sufficient evidence to convict Petitioner of the murders. See supra § VI.B.
Similarly, Petitioner's complaints that Detective Lillienfeld and Moreau-Hunter gave misleading or false testimony at the preliminary hearing cannot support federal habeas relief because such errors did not affect the constitutionality of the conviction. At most, defects at a preliminary hearing affect the validity of the probable cause determination. There is, however, no constitutional right to a preliminary hearing prior to being charged and tried. See Gerstein v. Pugh, 420 U.S. 103, 119, 125 n.26 (1975); Howard v. Cupp, 747 F.2d 510, 510 (9th Cir. 1984). Therefore, issues pertaining to “the sufficiency, credibility, and admissibility of testimony given at the preliminary hearing” simply provide no basis for federal habeas relief. Gilmore v. California, 364 F.2d 916, 918 n.5 (9th Cir. 1966). Rather, once a jury returns a guilty verdict, the validity of the conviction turns on the constitutionality of the trial-not any errors at the preliminary hearing.
In short, Petitioner has failed to demonstrate any misconduct by the prosecutor or other government officials that violated Petitioner's rights to due process and a fair trial. Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and Ground Sixteen fails to warrant federal habeas relief.
I. Cumulative Error
Finally, in Ground Seventeen, Petitioner asserts a claim of cumulative error. (Petition at 13). The California Court of Appeal rejected the claim, finding “no error that, either alone or in conjunction with others, prejudiced [Petitioner].” (Dkt. No. 103, Lodgment 8 at 164).
“Cumulative error applies where, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.” Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000); see also Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (“[T]he Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal.”).
Here, Petitioner has not shown a single instance of constitutional error in his underlying claims, let alone multiple errors that combined to prejudice the outcome of his trial. For this reason, Petitioner's claim of cumulative error necessarily fails. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.”); Mancuso, 292 F.3d at 957 (“Because there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation.”). Accordingly, Petitioner's claim in Ground Seventeen fails to warrant habeas relief.
VII.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Final Report and Recommendation, (2) denying Petitioner's “Motion for the Court to Withdraw My Habeas” (Dkt. No. 113), (3) denying the Petition, and (3) directing that Judgment be entered dismissing this action with prejudice.