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United States District Court, Northern District of California

March 31, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


The court having entered a ruling today denying the petition for a writ of habeas corpus, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits with the court. Petitioner responded with a traverse. The Court subsequently granted petitioner's request to amend the petition to add an issue raised on direct appeal. Respondent filed a supplemental answer and memorandum of points and authorities to address the new issue. The matter is submitted.


A San Mateo County jury convicted petitioner of second degree murder, assault of a child under the age of eight resulting in death, and willful injury to a child. He was sentenced to prison for fifteen years to life. As grounds for habeas relief he asserts that; (1) His Miranda rights were violated when certain statements were admitted at trial; (2) his due process rights were violated by the trial court's instructions regarding transcripts; (3) his due process rights were violated by the court's instruction on causation; and (4) his trial counsel was ineffective.

Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.

Four-year-old Vaundell Maurice Lee, Jr., nicknamed Momo, and seven-year-old Sergio Russell lived with Annetta Williams, their mother, and appellant, her husband. On August 25, 1995, shortly after 11:00 a.m., a "911" dispatcher received a call from appellant saying his son had choked on cereal and was unconscious. While keeping appellant on the line, the dispatcher sent an ambulance to the house, then asked what happened. Appellant replied, "He peed in this chair and I spanked him and I put him outside . . . he [lay] down on the ground and he had his head back and I guess he choked on his cereal." Appellant told the dispatcher Momo was not breathing and that he "just hear[s] his stomach pumping." The dispatcher guided appellant through the Heimlich maneuver, CPR and mouth-to-mouth resuscitation. As she was doing so, three emergency firefighters arrived.
Firefighter Jerry DeMartini found Momo lying motionless on his back. He had no pulse and his mouth was full of "runny" oatmeal-like matter. DeMartini did not know whether the matter was vomit or food that had not yet been ingested. DeMartini swept Momo's mouth with a cloth and searched with his fingers to dislodge any item causing the choking. He found nothing obstructing the airway, so he began administering oxygen through a manual "ambu" bag valve mask. Firefighter Gunning began CPR, which on a four-year-old child consists of positioning one hand over the sternum and rhythmically depressing the chest approximately one inch. Fire Captain Robert Brodie determined there was an air exchange, which is a flow of air inhaled and exhaled through the airway into the chest. Brodie has never seen anyone choke on the kind of liquid cereal in Momo's mouth.
Two paramedics arrived minutes after the firefighters and intubated Momo to administer oxygen. Using a laryngoscope they could see his trachea was clear. They attached Momo to an EKG monitor and administered drugs for cardiac arrest while Gunning continued to administer CPR. During the procedures, Momo's shirt was removed, and at least one emergency worker commented about scars or marks on his chest, stomach, and abdomen. DeMartini saw numerous bruises between the chest and pelvic bone. The two largest bruises were below the waist. The only part of Momo's body to which the emergency staff applied force was the sternum area. Because of the bruises and cardiac arrest, paramedic Karen Shadle asked the firefighters to call the police.
The emergency crew took Momo to the hospital approximately 10 minutes after their arrival at his house. The hospital emergency room staff immediately began advanced cardiac life support protocol. Momo's mouth contained cereal, but there was no upper airway obstruction. Neither the paramedics nor the hospital staff was ever able to resuscitate him, and he was pronounced dead approximately 45 minutes after he arrived at the hospital. In retrospect, attending emergency room physician Michael Fox and pediatrician Harvey Kaplan opined Momo was dead on arrival.
While treating Momo, Dr. Fox observed widespread bruising of varying age on Momo's trunk, back, legs, buttocks, and penis. Other than the bruise on the penis, Dr. Fox did not consider them unusual in location, but unusual in their number and extent. In his 20-year practice, he has seen only one other child with such an extreme degree of visible injury.
Dr. Kaplan, who qualified as an expert in child abuse, also observed numerous bruises all over Momo's body, from his head down to his legs, as well as a distended abdomen. The bruises appeared to have occurred between several days and 24 hours earlier, and were inconsistent with CPR efforts. The bruising sites were significant because it is unusual for a child to be bruised on the trunk, penis and inner thigh, unlike the knee, ankle or shin, which are "normal" areas of bruising in children. The bruise pattern on Momo's right chest was consistent with knuckle bruises from a punch. Bruises on his right inner thigh were consistent with bruises made by an object that wrapped around a leg, such as a belt or belt buckle. Dr. Kaplan has seen cases where the penis is pinched or squeezed as a focal point for a boy wetting himself. Compared with the bruises Dr. Kaplan had seen on other children who died from physical abuse, Momo's case was "one of the most severe cases" he had ever seen. In his opinion, the nature of Momo's injuries suggested they occurred when Momo was trapped in some manner. Following pronouncement of death, Dr. Kaplan took photographs of Momo because he was suspicious that Momo's injuries were indicative of abuse.
Jim Novello, a police homicide investigator, was notified that a four-year-old child was in the hospital, not expected to survive, and there were suspicious circumstances regarding his injuries. Novello arrived at the hospital four minutes before Momo was pronounced dead. Looking at Momo's body, Novello saw a large number of bruises from just below the neck to the feet down both sides of his body. He had never seen a child with that many bruises. Novello watched as Dr. Kaplan took photos and expressed suspicions of child abuse.
During an interview with Novello later the same day (Friday, August 25, 1995), appellant stated that he had disciplined Momo by "thump[ing] him on the head or by having him bend over the bed and giving him two or three "pops" on the buttocks with a leather belt, although he always held the buckle; that he never gave more than five or six "hits" with a belt; and that the previous day he "popped" Momo for using unacceptable language. He thought the bruises on Momo's chest might be from playing football. When asked about the bruises on the inner thigh and penis, appellant replied he gave Momo a whipping with a belt three days earlier, i.e., Tuesday, August 23. Appellant was not arrested following this interview.
At the August 26, 1995, autopsy the examining pathologist determined the cause of death as multiple blunt force traumatic injuries. He found approximately 42 external traumatic injuries that occurred in the 24-48 hours before death, 10 injuries that occurred between one week and 48 hours before death, and 20 injuries that occurred one week to several months before death. Momo's most significant injury was a laceration of the left ventricle of the heart, resulting from blunt force trauma. It would have caused death any time between a few minutes to 45 minutes, and was not caused by CPR. The pathologist also found blunt force injures to the intestine that corresponded roughly to the abdominal bruises and also to the thymus gland. The intestinal injures could affect a child's ability to control his bladder. The pathologist found no evidence of choking. According to Dr. Kaplan, the magnitude of force to rupture a ventricle is beyond that encountered in normal daily activities. He was unaware of CPR ever causing such a rupture.
After learning the results of the autopsy, Novello interviewed appellant again on August 29. Appellant admitted "whoop[ing]" Momo in the past, but said he did not know if the marks on Momo's body were caused by the "whooping" and that "when you're whooping kids you can't pinpoint the exact place where the belt hit them." He denied hitting Momo the day he died. At the conclusion of the interview Novello consulted with other police officers and the district attorney and decided to arrest appellant.
After appellant was arrested but before he was transported to jail, Officer Tom Daughtry took him to the hospital for examination of a swollen hand. While in the waiting room they talked casually, primarily about sports. After approximately 20 minutes of conversation, appellant stopped talking, paused, then said, "I made a mistake and it cost my son his life." Daughtry responded, "what do you mean," and appellant replied, "I'm under arrest. I guess it doesn't matter." He then related that on the morning of his death, Momo had urinated in his pants, so appellant took him upstairs to get into dry clothing, and while in the bedroom, appellant became frustrated and "popped" him. At that point in the narration, Daughtry interrupted and read him his Miranda rights. Appellant said he understood his rights, and Daughtry asked more detailed questions. Appellant stated he made cereal; Momo urinated in his pants; Sergio stayed downstairs to eat his breakfast while appellant took Momo upstairs; appellant was facing a dresser with Momo a bit to right rear, when appellant swung his arm in a backhand motion and hit Momo in the center of the chest; Momo left the room and went downstairs, grabbing the stair railing as he descended; appellant followed a minute or two later; he saw Momo lying on the couch, and took a chair into the bathroom to give the boys haircuts; he returned to see Momo lying in the patio, and telephoned "911." Daughtry then had appellant reenact the blow, with himself in the same position as Momo. Appellant's closed right fist struck Daughtry in the "dead center" of the chest.
After appellant was treated at the hospital, he returned to the police station with Daughtry, where he was interviewed again. He was advised of his Miranda rights and gave essentially the same account of striking Momo as he had given at the hospital.
The Defense

Appellant testified in his own defense, stating that after his wife left for work he prepared breakfast, then went upstairs to call the boys to the table. Sergio went downstairs. Appellant noticed that Momo, who recently had problems urinating in his pants, had wet pants. While getting clean underwear from the dresser drawer, appellant counseled him about using the bathroom. As he was changing Momo, he "swung out his arm" and "popped" Momo, i.e., struck him with the back of his hand somewhere between Momo's clavicle and abdomen. Momo made a little sobbing sound. Appellant told him to go downstairs and eat his breakfast.
Appellant went downstairs a few minutes later to cut the boys' hair. Momo was lying on the couch. Appellant took a kitchen chair into the downstairs bathroom and called Sergio for his haircut. Sergio sat down and told appellant the chair was wet. Appellant felt that Momo's pants were wet, gave him a casual "pop" on the behind and told him to go to the patio to dry off. As appellant went upstairs, he saw Momo lying motionless on the ground with cereal around his mouth. He tried to revive him with chest compressions of the force used on an adult, pushing his stomach, and splashing water on his face. He telephones "911" and followed the dispatcher's resuscitation directions until the firefighters arrived.
Ex. F at 1-6.

B. Issues Presented

1. Admissibility of statements

Petitioner contends that the trial court violated his constitutional rights by admitting statements which allegedly were made without required Miranda*fn1 warnings or which were involuntary.

The statements at issue here are petitioner's statement to Novello on August 29, 1995, his statement to officer Daughtry at the hospital on August 29, and another statement to Daughtry at the police station on August 29.

a. Statement to Novello

Petitioner claims that in his interview with officer Novello he did not explicitly waive his Miranda rights and that questioning continued after he invoked his right to counsel. As noted above, petitioner went voluntarily to the police station. The factual basis for this contention was set out by the Court of Appeal:*fn2

At the hearing on the motion, officer Novello testified that after obtaining the autopsy results he invited appellant to the police department because there were some "other things" he wanted to discuss with him in light of the investigation. In the station lobby Novello reiterated that he wanted to talk to appellant about the investigation he had undertaken since their previous conversation, and that appellant was not under arrest. Appellant told Novello he had "talked to counsel," who told him not to talk. Novello replied that he wanted to hold off any conversation until they were [in] a room where the conversation could be recorded. The following conversation then ensured in an interview room, and was admitted into evidence:
"Novello: . . . I'd like to go over a few things we talked about [on August 25, 1995, the day Momo died], okay? Thinking a little . . . more clearly now a couple more days have passed. I know it's still bothering you but . . . hopefully you feel able to answer my questions.
"[Appellant]: . . . Detective [Novello], I was advised not to answer any more questions. I gave my statement[.] I would love to answer your questions, but it's difficult and I spoke with my dad and I . . . had consultation and . . . they just told me at this time just don't say anything else. [M]y wife's having [a] very difficult time, and I don't know if she can handle looking at suff or being questioned or only that we're asking is to have our other son [Sergio, who had been removed from his mother's custody by Child Protective Services until the cause of Momo's death was known].
"Novello: Well, I can absolutely tell you, absolutely not. Because I need to find out what happened and if you're not gonna talk to me then I have to assume the worst. And there is no way . . . I am gonna let [an eight-year-old] boy back into a house where there [have] been some very serious problems. Now you want to talk[,] you want to invoke your Miranda, you . . . don't want to talk to me, and you want to do whatever you want to do, that's fine, that's up to you.
"[Appellant]: I'll speak. I . . . want my son. I know what I was advised to do, but I'll speak, I have nothin' to cover up, nothin' whatsoever.
"Novello: Okay, are you telling me now that you want to talk to me, after you . . .
"[Appellant]: I will . . .

"Novello: . . . just told me you didn't want to talk to me?

"[Appellant]: I will talk, `cuz of the fact that I want my other son.

"Novello: Okay. You know you have the right to remain silent?

"[Appellant]: Yes I do.

"Novello: And . . . anything you say can and will be used against you in a court of law[?]
"[Appellant]: Yes.

"Novello: You have the right to talk to any attorney and have an attorney present before and during any further questioning?
"[Appellant]: Yes.

"Novello: Do you understand that?

"[Appellant]: Yes.

"Novello: Okay. Well then why don't we state with . . . what happened last week?

After appellant related the events of the previous week, Novello pointed to any autopsy photo of Momo.
"Novello: Is that where you hit him, Derick?

"[Appellant]: He had his shirt on officer, all I know is . . .

"Novello: Did you hit him?

"[Appellant]: I noticed that bruise there.

"Novello: Did you hit him there?

"[Appellant]: No, I did not.

"Novello: Who did? Who hit him with a belt there?

"[Appellant]: I need counsel sir. I didn't do that.

"Novello: Well, who did it?

"[Appellant]: I did not. I never . . . my wife will vouch, I don't put my hands on those . . .
"Novello: [All right], are you asking . . . for your attorney, is that what you're asking for?
"[Appellant]: Keep questioning sir, I'm not a . . .

"Novello: [A]re you asking for your attorney? If you're, asking for an attorney I cannot ask you more questions.
"[Appellant]: I need to use the phone.

"Novello: Okay . . . you're not . . . in custody right now.

"[Appellant]: I understand.

"Novello: So what do you want to do? Do you want to stop this right now? And than I'll go talk to your wife.
"[Appellant]: I need to talk to my other son because I don't know what happened to him outside yesterday.
"Novello: Okay, Derick . . .

"[Appellant]: I don't . . .

"Novello: Derick . . .

"[Appellant]: And I think . . .

"Novello: Derick, you're not giving me direct answers, so, if you don't [want to] talk to me anymore that's fine, we'll just go on from here and I'll do what I need to do.
"[Appellant]: I answered the questions, sir, it's . . . I don't know

"Novello: Okay. Do you [want to] finish talking to me?

"[Appellant]: Yes, sir.

"Novello: Okay, so you're saying that you'll talk to me now?

"[Appellant]: Yes sir.

Appellant then answered some more questions about his relationship with Momo generally and the events preceding his death in particular, until the following exchange:
"Novello: [Momo] was examined. When a heart gets a hole . . . in it, you die within three or four minutes. Now you know exactly what happened and I'd like you to tell me.
"[Appellant]: This is very serious sir, and . . .

"Novello: You don't have to tell me how serious it is, the child is dead.

"[Appellant]: I know. I know. But, at this time, I've answered the questions and if you want to continue to question me I'd be more than happy . . . for you to question me. But I . . . need to call my dad at this time.
"Novello: Why do you need to call your dad . . .?

"[Appellant]: Because I need . . . some advice from others, besides . . . I don't know what I'm doing right now. I don't know if I should . . . even be saying anything because you're looking at me.
"Novello: Let me . . . tell you something Derick[,] . . . if you don't want to anything, or you don't want to tell me what happened, that's fine."
The trial court excluded the balance of the interview after concluding appellant was detained from that point on. The parties do not dispute that by the time of his arrest, which occurred at the conclusion of the interview, appellant had invoked his Miranda rights.
At the suppression hearing Novello testified that at the outset of the interview, appellant was not in custody, nor was it his intention to arrest him. Appellant did not define "counsel," but Novello thought he might be referring to a lawyer and attempted clarification several times. Appellant never specified that he wanted to speak to an attorney or that "counsel" meant lawyer. Even thought appellant was not in custody, Novello "Mirandized" him to be cautious because he was investigating a homicide. His failure to advise that an attorney would be appointed if appellant could not afford one was an oversight which Novello attributed to appellant's comment that he had talked to counsel, which Novello assumed was a lawyer. Novello's initial intention not to arrest appellant changed as the interview progressed because of appellants's evasive and seemingly dishonest answers.
The [trial] court found that appellant's reference to "consultation" at the beginning of the interview was not an invocation of his right to an attorney or to remain silent, that he never made an unequivocal assertion of either right thereafter, and that until the point of detention he was neither in custody during th interview nor believed he was.
Ex. F at 6-10.

The state appellate court held that petitioner was not in custody for the portion of the interview set out above id. at 11, and that petitioner's statements which might be interpreted as a request for counsel were "at best ambiguous," id. at 12.

In Hinman v. McCarthy, 676 F.2d 343, 348-49 (9th Cir. 1982), the Ninth Circuit held that: (1) Miranda violations are properly considered in federal habeas proceedings and are not barred by Stone v. Powell, 428 U.S. 465 (1976) (4th Amendment claims that were fully and fairly litigated in state courts cannot be raised in federal habeas proceedings); and (2) where statements are used as evidence of guilt and there is no proper instruction to the jury regarding the limited use of such statements, there is the possibility of federal constitutional error. This contention thus is one which may be raised here.*fn3

Miranda protections are triggered "`only where there has been such a restriction on a person's freedom as to render him `in custody.'" Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Oregon v. Mathiason, 429 U.S. at 495). "[I]n custody" means "`formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). It requires that "a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave," as judged by the totality of the circumstances. Thompson v. Keohane, 516 U.S. 99, 112 (1995).

The Ninth Circuit has identified several factors relevant to the "in custody" determination:

Pertinent areas of inquiry include [1] the language used by the officer to summon the individual, [2] the extent to which he or she is confronted with evidence of guilt, [3] the physical surroundings of the interrogation, [4] the duration of the detention and [5] the degree of pressure applied to detain the individual. Based upon a review of all the pertinent facts, the court must determine whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.
United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981); see, e.g., United States v. Kim, 292 F.3d 969, 977-78 (9th Cir. 2002) (holding defendant was "in custody" where she arrived at her store to look for her son and did not know police were there, the store was surrounded, the police locked the door behind her and left her husband outside, they restricted her communication with her son, what language she should speak, when, and where she could sit, and the questioning was lengthy and detailed in nature).

As the state appellate court noted, petitioner was asked, rather than commanded, to come to the station to talk about Momo's death. In the conversation quoted above Novello twice told petitioner he was not in custody, and he said he understood. Applying the Ninth Circuit's factors, the language used to summon petitioner indicated he was not in custody, i.e., he was asked to come to the station, rather than commanded to do so or physically taken there; he does not seem to have been confronted to any exceptional extent by evidence of guilt; the physical surroundings, an interrogation room at the station, suggest custody; the duration of the portion of the interview admitted by the trial court appears to have been relatively brief; and there was no pressure used to detain him. On balance, the Court concludes that the state appellate court's conclusion that petitioner was not in custody at the time of the portion of the interview admitted into evidence was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.

As an alternative ground for its holding, the state appellate court held that even assuming that petitioner was in custody, he did not clearly express a desire for an attorney. A suspect who has expressed a desire to have counsel present during custodial interrogation is not subject to further interrogation by the authorities until counsel is made available to him. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). Questioning need not cease if the suspect does not clearly request an attorney, however. Davis v. United States, 512 U.S. 452, 459-62 (1994) (suspect must unambiguously request counsel; "Maybe I should talk to a lawyer" insufficient); Clark v. Murphy, 317 F.3d 1038, 1046-48 (9th Cir. 2003) ("I think I would like to talk to a lawyer" and "should I be telling you, or should I talk to an attorney?" not unambiguous requests for counsel); Doe, 60 F.3d at 546 (mother's statement that juvenile maybe "ought to see an attorney" insufficient).*fn4

At the outset of the encounter between Novello and petition, before they were in the interview room, petitioner told Novello that he had "talked to counsel." A statement concerning an attorney made before interrogation begins is far less likely to be a request for attorney assistance during interrogation than a similar statement made during custodial interrogation. See United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999) ("What time will I see my lawyer?" not a request to have counsel present during interrogation because question was posed by defendant before being read his Miranda rights, before being interrogated and even before biographical questioning began). A simple statement that petitioner had "talked to counsel" was obviously not a request for the presence of counsel, at least at this stage of the encounter. Following that, petitioner's reference to having been advised not to answer questions, and having had "consultation," were not the unambiguous requests for an attorney required by the Supreme Court's cases. This is a closer question than the custody determination (which, by itself, is sufficient), but the Court concludes that the conclusion of the state appellate court that petitioner failed to explicitly invoke his right to counsel was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

b. Hospital statement to Daughtry

Officer Daughtry transported petitioner to a hospital to obtain treatment for an injured hand. Ex. A (reporter's transcript of suppression hearing) at 67. Daughtry was aware that petitioner was under arrest. Id. at 70. Daughtry and petitioner discussed sports, talking primarily about a baseball strike. Id. They did not talk about the case. Id. There was a silence, then petitioner blurted out: "I made a mistake, and it cost my son his life." Id. at 71.

Daughtry responded: "What do you mean?" Id. at 72. The trial court concluded, as did the state appellate court, that this was the functional equivalent of "what did you say?" or "what?", rather than a reinitiation of questioning. Ex. F at 13. Petitioner said "I'm under arrest, I guess it doesn't matter." Ex. A at 72. Petitioner then provided a narrative of events on the day of Momo's death. Id. at 72-73. When petitioner admitted having hit Momo, Daughtry read him his Miranda rights from a card and obtained a waiver. Id. at 73-74. Daughtry then questioned petitioner. Id. at 74-80.

Petitioner had invoked his right to counsel after his arrest. Ex. F at 12. Any reinitiation of interrogation was therefore forbidden by Edwards. However, police may continue the interrogation if the accused himself voluntarily initiates further communication. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983); United States v. Rodriguez-Lopez, 63 F.3d 892, 893 (9th Cir. 1995) (no Miranda violation where defendant volunteered statement after he was apprised of Miranda rights and said he understood those rights). It is clear that petitioner's statement that he made a mistake and that his son had died as a result was spontaneous. The state appellate court's conclusion to that effect was not contrary to, or an unreasonable application of, clearly established Supreme Court authority. Once petitioner had reinitiated the questioning, the police were entitled to continue unless he once again reinvoked his right to counsel; but in any event, the state courts' conclusion that officer Daughtry's remark was not a question, in this context, also is not unreasonable. As a result, the state courts' rejection of this claim does not require habeas relief.

c. Voluntariness as to all three statements

Petitioner contends that his statements, including one made the afternoon of the 29th to Daughtry at the police station, were involuntary.

Involuntary confessions in state criminal cases are inadmissible under the Fourteenth Amendment. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)).

Petitioner contends that Novello's statement that petitioner's older child could not be returned to a house where there had been "some very serious problems" was coercive, and caused his will to be overborne such that his statements were not voluntary. Petitioner contends that this was a veiled promise that if he were to give an incriminating statement, the child would be returned. Ex. F at 14. The statement was no more than the obvious, and there simply is no offer of a quid pro quo, even an implied one, for talking.

This claim is without merit, so the state courts' rejection of it was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

2. Assistance of counsel in relation to statements

Petitioner contends that his counsel was ineffective in failing to argue the supposed involuntariness of his statement as a basis for suppressing them. It is not ineffective assistance for counsel to fail to make a meritless motion. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him); Lowry v. Lewis, 21 F.3d at 346 (failure to file suppression motion not ineffective assistance where counsel investigated filing motion and no reasonable possibility evidence would have been suppressed); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance).

Because raising this ground as a basis for suppression would have been futile, this claim is without merit. The state appellate courts' rejection of it was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

3. Transcripts

Petitioner asserts that allowing the transcripts into the jury room unduly emphasized that testimony, so the trial court should have sua sponte given an instruction cautioning the jury to weigh all the evidence and not to focus on any one portion of the trial.

The state appellate court noted that the trial court repeatedly instructed the jury that the tapes of petitioner's statements to the police, discussed above, were the best evidence of what was said, that the transcripts were provided only for convenience, and that the jury should rely on the tapes rather than the transcripts if there was discrepancy. Ex. F at 17. The court concluded that these instructions "adequately apprised the jury of the proper role of the transcripts in the presentation of the evidence. . . ." Id.

Although federal cases do caution against undue emphasis of particular testimony, see, e.g., United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994), petitioner does not cite, and the Court has not found, any Supreme Court authority which holds, or even suggests, that a trial court has a constitutional duty to give a cautionary instruction regarding transcripts taken into the jury room, much less a duty to give such an instruction sua sponte. The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

4. Instruction on causation

Petitioner contends that the trial court's instruction on causation was insufficient to encompass his theory that Momo's death was caused not by his blow to the boy's chest but by an independent intervening cause, namely his innocent use of the Heimlich maneuver and his too-vigorous but innocent administration of CPR. The jury instructions on causation are set out in the margin.*fn5

A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. Due process does not require that an instruction be given unless the evidence supports it. Hopper v. Evans, 456 U.S. 605, 611 (1982); Miller v. Stagner, 757 F.2d 988, 993 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985).

The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).

It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case, when supported by the evidence. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, the defendant is not entitled to have jury instructions raised in his or her precise terms where the given instructions adequately embody the defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); Tsinnijinnie, 601 F.2d at 1040.

Petitioner's theory was that "[petitioner's] blow to Momo's shoulder, though not hard enough to create the internal injuries found at the autopsy, did cause the child to vomit and choke on his cereal. This, in turn, motivated [petitioner's] panic-stricken, too-vigorous attempts to expel the obstruction through the Heimlich maneuver and to restart Momo's heart and breathing through CPR designed for an adult. The stress which these activities put on the child's internal organs was exacerbated by the lenghty resuscitation efforts undertaken by the emergency personnel, all leading to the laceration [and other injuries]." Ex. C (petitioner's opening brief) at 47.

The state appellate court noted that the only evidence of a blow to Momo's shoulder was a hearsay statement by petitioner's brother-in-law, who testified that petitioner told him that "the only thing I did . . . was . . . hit him . . . in the shoulder area," and that this was completely contrary to petitioner's own statements to his brother-in-law denying he ever hit Momo, his statements to the police admitting he had hit the child in the chest, and his testimony at trial. Ex. F at 16. The "choking on cereal" theory is only supported by petitioner's own attempts to theorize as to what must have happened; there was no actual evidence of it. Id. at 16. And there was no evidence that the emergency personnel used inappropriate resuscitation efforts, although this does not go to the possibility that petitioner himself did so. Id. Thus there was no need to give an independent intervening cause instruction.

The Court concludes that the error, if any, did not so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. There being no constitutional error, the rejection of this claim by the state appellate courts was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.


For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.


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