Opinion
No. C-01-00590 CRB
September 10, 2002
MEMORANDUM AND ORDER
In 1999, Charles Vasil Statler, Jr., was convicted by a jury of second degree murder with enhancements for personal use of a deadly weapon and intentional infliction of great bodily injury; grand theft; fraudulent use of credit card; sale of a credit card; and auto theft. He was sentenced to 15 years to life in prison on the murder charge, plus four years and eight months in prison for the remaining charges. The California Court of Appeal affirmed, and the California Supreme Court denied review.
Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Court found that the petitioner stated four cognizable claims under section 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the Order to Show Cause. Petitioner filed a timely traverse.
FACTUAL BACKGROUND
The victim of all the offenses was Raymond Churchill, a 68-year-old retiree living in Lower Lake, on Spruce Grove Road. Petitioner lived with Churchill at the time of the killing.
The evidence showed that petitioner killed Churchill in his mobile home sometime after January 1, 1997. On the day of the killing, petitioner returned home sometime in the afternoon. He left shortly thereafter when he found a young man with Churchill, who was a homosexual. Petitioner would avoid the house whenever Churchill entertained other homosexual friends at their home. Petitioner claimed that he did not have a physical relationship with Churchill. Later that evening, when petitioner returned home, he and Churchill began drinking. Petitioner claimed that Churchill would change from a nice man to a belligerent man whenever he drank. That evening, after Churchill made dinner for the two of them, petitioner claimed that Churchill "started ranting and raving about being used, taken advantage of." Petitioner believed he meant the young man who was with Churchill earlier and who, petitioner suspected, had gotten some money from him. Petitioner claimed that Churchill was "getting upset and trying to take it out on" him. While petitioner stood at the stove heat-drying the 10-inch cast iron skillet they had just used to prepare steak he heard Churchill pick up a butcher knife off the cutting board. Petitioner then picked up the skillet and warned Churchill, "You're not going to cut me again." Petitioner was apparently referring to an incident two to three months prior when Churchill had cut two fingers of petitioner's hand.
Petitioner explained that after he warned Churchill, he carried the skillet into the living room and sat down to watch TV. He placed the skillet beside him on the coffee table. Churchill went into his bedroom. Churchill later came out of his bedroom and was still complaining about being abused. Petitioner claimed that Churchill then came at him around the corner at a "fairly good speed," holding the knife. Petitioner stood up and saw Churchill "right there" with the knife held underhand. Petitioner hit him with the skillet by swinging it overhand. He hit him on the top of his forehead. Churchill fell down and was bleeding from the head. Petitioner checked and found no pulses on Churchill's wrist or neck. Petitioner claimed that he had not meant to kill Churchill and that he had not meant to hit him as hard as he did. Petitioner dragged the body outside and cleaned up the blood inside. He later took Churchill's body and hid it in Jerusalem Valley.
The following days after petitioner killed Churchill, he stole some of Churchill's belongings, used Churchill's credit card, and attempted to use his ATM card. At trial, several witnesses testified to the theft offenses.
After several days, petitioner eventually went to the police and confessed his crime, claiming self-defense. He led the investigators to Churchill's body and gave several recorded statements to the detectives. Petitioner even reenacted the night of the killing in Churchill's mobile home for the investigators to record. There were many inconsistencies among his various statements and they were explored in detail at trial.
Defense counsel argued at trial that petitioner acted in self-defense and never meant to kill or use the amount of force he did. The prosecution attacked the credibility of petitioner's account and urged that the blow came in anger, perhaps over the young man who was at Churchill's house on the day of the killing (implying a homosexual relationship between Churchill and petitioner) or perhaps because petitioner feared losing his place to live. The prosecution emphasized that the use of the skillet — a deadly or dangerous weapon — established malice. The jury returned a general verdict convicting petitioner of second-degree murder and other theft counts. The jury took less than thirty minutes to reach its verdicts.
STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 1521.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert. denied, 121 S.Ct. 340 (2000).
When the state court does not articulate a rationale for its decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
LEGAL CLAIMS
Petitioner raises four cognizable claims under section 2254:
1. Whether the erroneous felony murder instruction was harmless error.
2. Whether the state court deprived petitioner of his due process rights by failing to instruct on a lesser-included offense.
3. Whether the state court deprived petitioner of his due process rights by permitting the investigating officer to testify that petitioner was on probation in a different county.
4. Whether the state court deprived petitioner of his due process rights by erroneously admitting evidence.
DISCUSSION
I. Felony-Murder Instruction
At trial, the court instructed on two theories of second-degree murder. The court gave a proper instruction on second-degree murder based on implied malice. The court instructed the jury that implied malice arises if the petitioner 1) performed an intentional act, 2) the natural consequences of which are dangerous to human life, and 3) which was "deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." R.T. 827.
The court also gave a second-degree murder instruction based on felony-murder. In this instruction, the court told the jury that assault with a deadly weapon, or by means of force likely to produce great bodily injury, is a felony inherently dangerous to life that can serve as the basis of a felony-murder conviction. Id. This instruction was erroneous; assault with a deadly weapon cannot serve as the predicate felony for felony-murder under California law. See People v. Ireland, 70 Cal.2d 522, 538-540 (1969). In Ireland, the California Supreme Court held that it is error to premise second degree murder on an underlying felony of assault with a deadly weapon or by means of force likely to produce great bodily injury, when that felony is necessarily included within the homicide.See id. Respondent and the California Court of Appeal acknowledged that the felony-murder instruction in this case violated petitioner's right to due process.
The court further instructed on self-defense, which if credited would have required acquittal, and on imperfect self-defense, which if credited would have required conviction of involuntary manslaughter. R.T. 829-834.
On direct appeal, and in this Court, petitioner claims that this instructional error was structural error that requires reversal of his conviction. Petitioner relies on a line of Supreme Court cases holding that when a verdict is supportable on one legal ground but not on another, and the court cannot determine which ground the jury relied upon, the verdict must be set aside. See Yates v. United States, 354 U.S. 298, 312 (1957), rev'd on other grounds, Burks v. United States, 437 U.S. 1 (1978); Griffin v. United States, 502 U.S. 46, 55 (1992). This rule originated in Stromberg v. California, 283 U.S. 359, 368 (1931). The defendant in Stromberg was charged with violating a California statute that prohibited the display of a red flag in a public place as: 1) a symbol of opposition to organized government; 2) an invitation to anarchistic action; or 3) an aid to seditious propaganda.See id. at 361. The Court instructed that the prosecution had to prove only that defendant flew the flag for one of the enumerated purposes,see id. at 363-64, and the jury convicted on a general verdict. See id. at 367-68. The Supreme Court overturned the defendant's conviction because the first possible ground for conviction was unconstitutional, and it was impossible to tell which ground the jurors relied upon. See id. at 368. "It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld." Id. In Yates, the Supreme Court extended Stromberg to require automatic reversal of a general verdict if one of the bases of conviction was legally inadequate, even if it did not violate a Constitutional provision. See Yates, 354 U.S. at 312 ("[T]he proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.").
The Ninth Circuit applied the Yates rule in Suniga v. Bunnell, 998 F.2d 668 (9th Cir. 1993). In Suniga, like the case at bar, the court gave both a proper murder instruction and an improper felony-murder instruction based on assault with a deadly weapon. See id. at 667. The Ninth Circuit recognized that the erroneous felony-murder instruction permitted the jury to convict on the basis of a nonexistent legal theory.See Suniga, 998 F.2d at 668, 669. In the Ninth Circuit's view, the erroneous instruction "infected the entire trial," violated due process, and required that the defendant's conviction be set aside. See id. (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)).
Here, the California Court of Appeal rejected petitioner's reliance on Suniga. The Court of Appeal pointed to subsequent state and federal decisions holding that incorrect or missing instructions concerning an element of a crime are subject to Chapman harmless-error analysis. People v. Statler, No. A086692, slip op. at 10 (Cal.Ct.App. June 20, 2000);see Neder v. United States, 527 U.S. 1 (1999); People v. Flood, 18 Cal.4th 470 (1998). Equating the improper felony-murder instruction at petitioner's trial with an incorrect or omitted instruction concerning an element of a crime, the court applied Chapman harmless-error analysis to the flawed instruction and concluded that the instruction was harmless beyond a reasonable doubt. See Statler, slip op. at 10-13.
This Court agrees with the approach taken by the California Court of Appeal. Under California law, the felony-murder rule "withdraws from the jury the requirement that they find . . . malice." People v. Dillon, 34 Cal.3d 441, 475 (1983) (citation omitted). Accordingly, the effect of giving the erroneous instruction in this case was to permit the jury to convict Statler of second-degree murder without first finding that he acted with the requisite malice. In this sense, the felony-murder instruction at issue was indistinguishable from a second-degree murder instruction from which the element of malice is omitted. In light ofFlood and Neder, the Court of Appeal was correct that the mistaken instruction was not structural error requiring automatic reversal.
In determining whether the instructional error was in fact harmless, this Court is guided by a different standard than that applied by the California Court of Appeal. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) ("Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. § 2254(d)."). Whereas the Court of Appeal evaluated the error under Chapman, this Court must ask whether the error had a "substantial and injurious effect or influence" on the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 435-36 (1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also Payton v. Woodford, 299 F.3d 815, 827 (9th Cir. 2002); Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir. 2000). If the Court is "convinced that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand." Payton, 299 F.3d at 828 (internal quotation marks omitted).
Applying this standard, the Court reaches the same conclusion as the California Court of Appeal: The instructional error at petitioner's trial was harmless. As discussed above, the effect of the error was to permit the jury to convict petitioner of second-degree murder without making an explicit finding that petitioner acted "with knowledge of the danger to, and with conscious disregard for, human life," i.e., with malice aforethought. CALJIC No. 8.11. However, the jury did explicitly find that Statler used the skillet as a dangerous or deadly weapon and that he acted with intent to inflict grave bodily injury. Statler, slip op. at 11-12. It also received evidence that Statler struck his 68 year-old victim with sufficient force to fracture the victim's skull, break his spine, and sever the handle from the skillet. Id. at 13. Although petitioner argues that a rational juror weighing such evidence could conclude that petitioner did not necessarily act with conscious disregard for human life, this Court cannot agree that an individual using a cast-iron skillet as a dangerous weapon with the intent to cause grave bodily injury could possibly fail to apprehend and disregard the life-threatening nature of so severe a blow to the head of an elderly man. Since no rational jury could have failed to find implied malice under the circumstances, the trial court's failure to give an explicit instruction on that element did not have a substantial and injurious effect on the verdict. As such, petitioner is not entitled to habeas relief on this claim.
That Petitioner purportedly did not mean to kill the victim does not alter the analysis; even if true, this claim does not negate implied malice. Shackleford, 234 F.3d at 1078-79.
II. Failure To Instruct on a Lesser Included Crime Claim
Petitioner contends that the trial court violated his right to due process because it failed to instruct on voluntary manslaughter based on imperfect self-defense or heat of passion/sudden quarrel. Petitioner claims that the trial court's refusal to so instruct deprived him of his right under United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984) (failure to instruct the jury on the defendant's theory of the case is reversible per se). The California Court of Appeal rejected petitioner's argument because based on the record, any error was invited.Statler, slip op. at 18. The court made the following finding:
The transcript shows this exchange between the court, prosecutor Gerhard W. Luck and defense counsel Arleen Russo: "MR. LUCK: And the last thing that I believe we need to put on the record before we start instructing the jury is the discussion that we've had on lesser-included or related crimes as it relates to Count 2, Counts 4, 5, and 7 that remain and based on the state of the evidence, we feel, after discussing it, that the lessers — or instructions on lessers would be inappropriate.
"THE COURT: Ms. Russo?
"MS. RUSSO: I would agree, your Honor.
"THE COURT: I don't know if there is a formal objection to — by either side to the giving of lesser — instructions on lesser-included or related offenses as to those offenses, but we have thoroughly discussed lesser offenses with regard to counts — well, actually, with regard to all of the remaining counts.
"It is as the consensus of the Court and counsel that there is no — there is insufficient evidence to support a guilty verdict as to voluntary manslaughter, given the state of the evidence — a is, that there is no rational or reasonable view of the evidence that would support an acquittal as to 2nd degree murder, but a conviction for involuntary manslaughter.
"MR. LUCK: For voluntary.
"THE COURT: I'm sorry. For voluntary manslaughter.
"So the instructions that will be given with regard to Count 1 will be as to murder in the second degree and involuntary manslaughter as a lesser."
Thus defense counsel clearly took the position that no voluntary manslaughter instruction was needed, agreeing with a consensus reached in chambers that the evidence did not warrant it.Statler, slip op. at 14-15.
In California, the settled doctrine of invited error regarding jury instructions is that "the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice." People v. Cooper, 53 Cal.3d 771, 831 (1991). The California Court of Appeal expressly invoked this rule and held that any error regarding lesser-included instructions on voluntary manslaughter was invited here. Statler, slip op. at 18. The court found that the trial court was careful to elicit defense counsel's response on the record that it was not a "formal objection" but an agreement that no instruction was needed. Id. at 16. "This exercise would have served little purpose unless it was to secure a showing of counsel's deliberate tactical choice. The court was presumptively aware that failure to give needed LIO instructions would be no less erroneous if invited by defense counsel . . . and appears to have been making a record to clarify that matter." Id. at 16-17.
This Court agrees with the California Court of Appeal. "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state rule must be independent of federal law see Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000), firmly established at the time of the default, see Ford v. Georgia, 498 U.S. 411, 412 (1991), and regularly applied by the state. See Johnson v. Mississippi, 486 U.S. 578, 579 (1988). In the present case, the invited error doctrine is settled law in California. See People v. Wickersham, 32 Cal.3d 307 (1982); Cooper, 53 Cal.3d at 831. Moreover, petitioner has not demonstrated in his entire argument (consisting of nine lines, one paragraph) a cause for the default and actual prejudice as a result of the alleged violation, or demonstrated that failure to consider the claims will result in a fundamental miscarriage of justice. See id. Petitioner's reliance on Escobar is also misplaced because the case was decided on direct appeal, not on habeas corpus review of a state judgment. See Escobar, 742 F.2d at 1196.
Furthermore, under the law of this circuit, failure of state trial courts to instruct on lesser included offenses in non-capital cases does not present a federal constitutional question. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (quoting Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998)). There is also no clearly established Supreme Court authority requiring such instructions. The Court has only held that a defendant may be entitled to lesser included instructions in a capital case, declining to decide whether its holding extended to non-capital cases. See Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980). In the absence of Supreme Court authority, habeas relief is precluded under 28 U.S.C. § 2254(d)(1). Petitioner's claim not being cognizable, habeas relief is denied.
III. Investigator's Injection
Petitioner contends that he was denied due process because at trial, a police officer, Detective Quinn, made a single, brief reference to the fact that petitioner was on probation. The comment occurred when the prosecutor asked Detective Quinn about her investigation after petitioner's arrest, specifically what she did to locate the victim's ring. Detective Quinn replied, "On the 23rd I contacted Sonoma County probation because Mr. Statler was on probation out of Sonoma County." The trial court immediately admonished the jury to disregard the probation statement and again admonished the jury during general instructions. Petitioner nonetheless argues that the jury could have easily inferred from Detective Quinn's other testimony that the detective ran a criminal history report on him and then contacted Sonoma County because petitioner was a convicted felon on probation out of that county. Petitioner contends that given the closeness of the case between second-degree murder and manslaughter, the improper interjection of testimony likely prejudiced the jury's verdict, thereby depriving his due process.
Both petitioner and respondent acknowledged that petitioner's probation status should not have been mentioned. The California Court of Appeal, however, found no prejudice because petitioner had not shown prejudice resulting from the comment. Statler, slip op. at 19. The court noted that the admonition to disregard the statement was clear; that petitioner himself had intimated he had a "criminal past" during his testimony; and that the officer's reference "divulged nothing about any underlying offense." Id.
Although petitioner's probationary status should not have been mentioned, the error did not rise to the level of constitutional violation. Federal habeas review does not extend to reviewing a state court's evidentiary ruling unless it was so prejudicial as to constitute a violation of due process. See Estelle, 502 U.S. at 67. Petitioner has failed to demonstrate that the evidentiary ruling was a violation of due process. There was only a single mention of petitioner's probationary status in the entire trial. Furthermore, the trial court admonished the jury immediately after Detective Quinn's statement, and it again instructed the jury not to consider evidence that had been stricken during the general instructions at the close of the case. Jurors are presumed to follow limiting instructions, which generally cure any prejudice. See Richardson v. Marsh, 481 U.S. 200, 206-207 (1987). Detective Quinn's statement did not rise to the level of constitutional violation in the present case.
Petitioner is not entitled to federal habeas relief on this claim. The California Court of Appeal's decision was not an unreasonable or clearly erroneous application of Supreme Court law. Moreover, petitioner has not shown a substantial and injurious effect on the verdict under Brecht v. Abrahamson. See 507 U.S. at 637.
IV. Erroneous Admission of Evidence Claim
Petitioner claims that he was deprived of his due process rights because the trial court erroneously admitted evidence that he had once advised Monique Balwinski, one of the witnesses at trial, to hit her abusive husband over the head with a frying pan as a defensive measure.
The California Court of Appeal found that petitioner did not preserve the issue for appeal because defense counsel failed to raise a timely, specific objection. Statler, slip op. at 21. To preserve for appeal an argument about the erroneous admission of evidence, a defendant must have raised an objection in the trial court on the particular ground raised on appeal. Cal. Evid. Code § 353(a). Defense counsel objected only on relevance grounds to prosecutor's initial question whether Balwinski had been involved in a violent relationship, but failed to object during the subsequent testimony about petitioner's frying pan advice. Accordingly, the California Court of Appeal did not address the merits of petitioner's argument. Statler, slip. op 20-21.
This Court agrees with the California Court of Appeal. "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. California's contemporaneous objection requirement has long been established. Cal. Evid. Code § 353(a). The federal courts have repeatedly acknowledged that such a state rule constitutes valid procedural default. See, e.g., Ylst v. Nunemaker, 501 U.S. 797, 806 (1991) (failure to object to confession on Miranda grounds); Wainwright v. Skyes, 433 U.S. 72, 87 (1977) (failure to object to confession). In the present case, petitioner defaulted his federal claim regarding the erroneous admission of evidence because he failed to object in a timely manner. See Coleman, 501 U.S. at 750. Furthermore, petitioner has not offered any showing of cause and prejudice or miscarriage of justice to overcome this procedural bar. See id. His claim, therefore, has been procedurally defaulted.
Petitioner is not entitled to relief on this habeas claim. The California Court of Appeal's decision was not an unreasonable or clearly erroneous application of Supreme Court law. See Van Tran, 212 F.3d at 1159.
For the foregoing reasons, Statler's petition for writ of habeas corpus is DENIED.