FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his Sacramento County convictions for assault with a firearm and shooting into an inhabited dwelling. This action is proceeding on the amended petition filed February 6, 2008. Petitioner claims that: (1) his rights to due process and to confront the witnesses against him were violated when the trial court admitted into evidence statements made by the victim's daughter to a 911 operator; (2) the state court violated his constitutional rights when it denied his motion for a mistrial after a transcript of the victim's conversation with a 911 operator was distributed to the jury; and (3) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied for the reasons provided below.
Defendant Tyrone Powell was convicted of shooting his former girlfriend and sentenced to an aggregate prison term of 39 years to life.
On appeal, he contends the trial court erred in admitting into evidence the tape of a 911 call made by the victim's six-year-old daughter, in which she identified the shooter as her mother's "best friend," a term she used to describe defendant. Defendant also contends the trial court abused its discretion in denying his motion for a mistrial after the jury briefly received the transcript of a later 911 call by the victim, which contained an inadmissible hearsay statement by the 911 dispatcher that "all of the neighbors" said the victim's "best friend" had shot her.
We conclude the trial court properly admitted the tape of the daughter's 911 call because her statement to the dispatcher that her mother had been shot by her "best friend" was inconsistent with her trial testimony that she did not know what had happened to her mother when she called 911.
We also conclude the trial court did not abuse its discretion in denying the mistrial motion. Given the substantial amount of evidence defendant was the shooter, the lack of any direct evidence the jury actually read the 911 dispatcher's hearsay statement that "all of the neighbors" had identified the victim's "best friend" as the shooter, and the instruction to the jury to decide the facts based only on the evidence, the trial court reasonably could have determined that the possibility one or more of the jurors saw the 911 dispatcher's inadmissible hearsay statement did not justify a mistrial.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of July 23, 2001, Gerrietta Warr was shot in the foot while standing at her front door. At 9:50 p.m., Warr's six-year-old daughter, Lavesha, called 911 and reported that her mother's "best friend," who lived across the street from them, "shot [her] in the leg." Lavesha later testified that defendant was her mother's best friend.
Two minutes after Lavesha's call, Warr called 911 and told the dispatcher she was okay, she had just stepped on some glass. The following exchange then occurred: "911: Oh, you didn't get shot in the leg?" "GW: No, baby. "911: OK because that's the report we got. "GW: From where? "911: From all your neighbors. "GW: No, I didn't get shot. "911: Ok, because all of the neighbors said that they heard the shots and that you got shot in the leg. (Indiscernible) "GW: No, I'm ok. "911: And they told us who did it though. "GW: They told you who did it? "911: Yeah. "GW: Well who did it? "911: Well, you tell me. "GW: I don't know. "911: Your best friend. "GW: My best friend? "911: Yes. "GW: I don't have a best friend."
The call ended when Warr refused to give her name and denied having a bullet in her leg.
Sacramento Police Officer Timothy Chan was dispatched to the scene, where he interviewed Warr. Warr told Officer Chan that defendant, who was her ex-boyfriend and whose mother lived across the street, had shot her while she was standing at the front door and he was standing on the porch. Officer Ernest Lockwood, who also responded to the call, interviewed Laven Cisco, Lavesha's father, and he agreed defendant was the shooter.
Defendant was charged by amended information with one count of assault with a firearm and one count of discharging a firearm at an inhabited dwelling. The information also alleged two prior convictions.
In an about-face, Warr testified at the preliminary hearing that she did not remember how she got shot, and she denied seeing defendant at all that night. Perhaps because of this sudden reversal, at trial the prosecutor moved in limine to introduce into evidence the tape recording of the 911 call Lavesha made to assist in proving defendant was the shooter. No mention was made of Warr's call.
The trial court held an Evidence Code section 402 hearing to determine if Lavesha's statement to the 911 dispatcher about who shot her mother was admissible over a hearsay objection. One of the prosecutor's arguments was that Lavesha's statement should be admitted as a spontaneous statement under Evidence Code section 1240.*fn2 The prosecutor contended it was "clear from the tape itself" that Lavesha was reporting to the dispatcher what she had seen. After listening to the tape, however, the trial court disagreed, noting there was "nothing inherent on this tape recording which proves to us that she had to have been in a position to actually see this as opposed to somebody telling her who did it."
The prosecutor then sought to prove Lavesha saw the shooting by examining both Lavesha and her father at the 402 hearing. Lavesha's father testified he was not present when the shooting occurred and claimed he told that to the police officer who interviewed him. Lavesha also claimed she was not in the house when her mother was shot. She said she came home with her father*fn3 and found her mother's foot was bleeding and that was how she knew her mother had been shot. She denied talking to her mother about what happened before she called 911, and she did not remember telling the 911 dispatcher that her mother's best friend was the person who had shot her, although she remembered making the call. When the tape was played for her, Lavesha testified she did not remember why she said her mother's best friend shot her.
Following Lavesha's testimony, the trial court stated its "ruling would be the same as far as the 911 tape," and the prosecutor said she intended "to put on the little girl on the stand and impeach her with it." Again, there was no mention of Warr's call to 911. At some point that day, however, before trial testimony began, the prosecutor had marked as exhibits transcripts of Lavesha's call to 911 and Warr's call to 911, each of which was three pages long. In her opening statement, the prosecutor referred to both calls, but she did not refer to those portions of the calls in which it was asserted Warr was shot by her best friend.
Warr, who was the first witness for the prosecution, testified she was home alone playing Pac-Man in the living room when she was shot in the foot through her front door. She claimed Lavesha and her father came home after she was shot and Lavesha "didn't see anything." Warr also repeated her claim that she had no idea who shot her. When she said she did not remember what she told the 911 dispatcher, the prosecutor played a brief portion of the tape of Warr's call to 911. Warr responded she could not "remember" if it was her voice on the tape. When she said she did not remember telling the 911 dispatcher she had stepped on glass, the prosecutor asked to approach, and an unreported discussion was held at the bench. Further examination regarding Warr's 911 call followed, and Warr admitted telling the 911 dispatcher she had not been shot, but denied having a "conversation" with the dispatcher. The prosecutor then asked to play the tape recording of Warr's telephone call to 911. The court responded: "All right. Just a second here. All right. I need to talk to you. All right. Pass the transcripts-Deborah, collect the transcripts. Don't read them any more, just pick them up." Apparently, the court had just discovered that a complete transcript of Warr's call to 911 had been handed out to the jurors, including that portion of the call in which the 911 dispatcher said that "all of the neighbors" had identified Warr's "best friend" as the shooter.
Another unreported bench conference occurred, followed by the noting of an unspecified objection by defense counsel on the record. When the court announced that the prosecutor was "going to play what amounts to the first page" -- which did not include Warr's claim of having stepped on glass or the dispatcher's statements about Warr's "best friend" -- the prosecutor asked for another bench conference. Following that conference, the prosecutor asked to play the tape for the jury and to have the transcripts returned to them. She then apparently told the bailiff, "They can have the transcripts back." As the bailiff began to pass out the transcripts again, the court interrupted, asking "What are you doing?" and telling the prosecutor, "I said they are not going to have the transcript because you're not going to play the whole tape." When the prosecutor responded she did not understand that the court had told her she could play only part of the tape, the court asked the jury to step outside.
During the discussion that followed, the court observed that the latter part of the tape, which included the 911 dispatcher's statements about who shot Warr, "is getting into some substantial hearsay" and "would be highly prejudicial." The court further asserted the transcript "should have never been passed out to the jury." The prosecutor argued she was not offering the tape "for hearsay purposes" but "for a non-hearsay purpose to demonstrate the victim's bias, the victim's uncooperative nature." When the court informed her she did not "need to get into something that's highly prejudicial" to demonstrate Warr's attitude, the prosecutor replied that the jury was "going to hear the tape that mentions the best friend comment through the daughter."
As the discussion continued, defense counsel asserted the prosecutor had "just passed... out" the transcript and the jurors had it "for a couple of minutes before the Court ordered it collected by the bailiff." Defense counsel then moved for a mistrial "because now they are hearing testimony from the 911 operator that we know who did it, and shots fired, and all of that. So that the prejudicial value has already been implanted in the jury's mind." The court responded: "I think that we acted fairly quickly to gather up all the transcripts. But even if they did see it, they are going to know fairly shortly why the 911 operator would say that, because this little kid told her that." The court proceeded to deny the mistrial motion "because I don't think there's any prejudice involved in light of what's about to come."
The following day, before Lavesha testified, defense counsel noted for the record his objection to admission of the 911 call by Lavesha because "it's not a spontaneous or contemporaneous declaration, nor is it a prior consistent or inconsistent statement." The court overruled the objection, noting use of the tape was "a legitimate effort on the prosecution's part to attempt to persuade the little girl... to admit the truth that she was in fact there" when Warr was shot or "that her mother told her who had done this."
On the stand, Lavesha testified that when she and her father returned to the house on the night of the shooting, her mother was not yet hurt. She said she was in the house, close to her mother, when her mother got hurt, but she did not remember what room she was in, although she claimed she was behind her father. She first said she did not hear anything before her mother got hurt, but then said she heard the TV and heard her mother arguing with someone outside. She denied hearing any loud noises, but after she heard her mother arguing she saw blood on her mother's foot and called 911. The following exchange then occurred: "Q. Why did you do that? "A. Because it was an emergency. "Q. Did you know what had happened to your mom? "A. No. "Q. Did you ask her? "A. No. "Q. Did you see what happened? "A. No. "Q. Did your mom tell you what happened? "A. No. "Q. Did your mom tell you that Tyrone was there? "A. No. "Q. Who's your mom's best friend? "A. Tyrone."
Lavesha then identified defendant as Tyrone.
When Lavesha claimed she did not remember telling the 911 dispatcher that it was her mother's best friend, who lived across the street, who hurt her mother, the court allowed the prosecutor to play the 911 tape. On cross-examination, Lavesha did not know why she said her mother's best friend was the one who hurt her mother. Then, on both cross- and redirect examination, Lavesha denied seeing who shot her mother and claimed neither her mother nor her father told her who shot her mother.
The jury found defendant guilty of both charges, and the court found the prior conviction allegations true. (People v. Powell, No. C043317, 2004 WL 501733 at *1-*4.)
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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.
28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn4 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the ...