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Kenneth D. Smith v. G.J. Giurbino

December 3, 2010

KENNETH D. SMITH, PETITIONER,
v.
G.J. GIURBINO, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges his 2000 judgment of conviction entered in the Yolo County Superior Court for second degree murder in violation of California Penal Code § 187(a).

Petitioner seeks federal habeas relief on the grounds that: (1) the trial court erred in allowing the victim's son to testify; (2) the trial judge improperly instructed the jury; (3) the prosecutor was improperly allowed to introduce into evidence hearsay statements against petitioner; (4) petitioner's trial counsel rendered ineffective assistance; (5) petitioner was not tried by a jury of his peers; (6) his conviction was the result of an overzealous prosecution; (7) there was insufficient evidence introduced at trial to support his conviction; and (8) the evidence presented at trial supported only a conviction on a lesser offense.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL BACKGROUND

On September 29, 2000 a Yolo County Superior Court jury found petitioner guilty of second degree murder. (Notice of Lodging Documents on April 14, 2004 (Doc. No. 4), Clerk's Transcript on Appeal (CT) at 412.) Following his conviction, petitioner was sentenced on October 30, 2000, to state prison for an indeterminate term of fifteen years to life. (Id. at 460.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On November 26, 2001, the judgment of conviction was affirmed in a reasoned opinion. (Doc. No. 4, Ex. C.) Petitioner then filed a petition for review with the California Supreme Court. (Doc. No. 4, Ex. D.) On February 13, 2002, the California Supreme Court summarily denied that petition. (Doc. No. 4, Ex. E.)

On March 14, 2003, petitioner filed a petition for writ of habeas corpus in the Yolo County Superior Court. (Doc. No. 4, Ex. G.) That petition was denied on March 26, 2003. (Id.) Petitioner thereafter filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District on May 5, 2003. (Doc. No. 4, Ex. H.) That petition was denied on May 8, 2003. (Doc. No. 4, Ex. I.) On May 19, 2003, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Doc. No. 4, Ex. J.) That petition was denied on January 28, 2004. (Doc. No. 4, Ex. K.)

On March 12, 2004, petitioner filed his original petition for a writ of habeas corpus in this court. (Doc. No. 1.) Respondent filed an answer to that petition on April 14, 2004. (Doc. No. 4.) On July 1, 2004, petitioner moved for leave to amend his petition to add three new claims. (Doc. No. 6.) Thereafter, on December 1, 2004, petitioner filed a motion to hold these proceedings in abeyance to allow him the opportunity to exhaust his three new unexhausted claims in state court. (Doc. No. 12.) On May 18, 2005, petitioner's motion was granted and this action was stayed. (Doc. No. 16.)

On June 24, 2005, petitioner filed a second state habeas petition in the Yolo County Superior Court raising his three unexhausted claims. (Notice of Lodging Documents on October 27, 2009 (Doc. No. 78) Resp't's Lod. Doc. 1.) That petition was denied on procedural grounds on July 26, 2005. (Resp't's Lod. Doc. 2.) Petitioner next filed a habeas petition in the California Court of Appeal on August 10, 2005, again raising his three unexhausted claims. (Resp't's Lod. Doc. 3.) That petition was summarily denied on August 18, 2005. (Resp't's Lod. Doc. 4.) On August 15, 2008, petitioner filed a state habeas petition raising the three unexhausted claims in the California Supreme Court.*fn1 (Resp't's Lod. Doc. 5.) That petition was denied on procedural grounds on February 18, 2009. (Resp't's Lod. Doc. 6.)

On April 24, 2009, petitioner filed a motion to lift the stay in this action. (Doc. No. 68.) That motion was granted on July 15, 2009. (Doc. No. 68.) That same day petitioner filed the amended petition now before the court. (Doc. No. 69. - "Am. Pet.") Respondent filed an answer on October 27, 2009. (Doc. No. 77 - "Answer.") Petitioner filed his traverse on June 11, 2010. (Doc. No. 91 - "Traverse.")

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Early in the morning of October 27, 1998, volunteer firefighters responded to a head-on auto accident on South River Road. Defendant remained conscious, and when asked, "Where do you hurt," he answered, "I was trying to do suicide." Defendant was then asked his name, he answered, "Ken, Kenny Smith. I was trying to do suicide." The driver of the other vehicle, Brian Tenney, was found dead.

Approximately one month earlier, Officer Stokes found defendant sitting by the side of a road in his underwear and bathrobe. He had a gun with three spent shell casings and three live bullets. After he was taken into custody, he told Officer Stokes he was sitting by the side of the road because "[h]e wanted to commit suicide." He related that earlier that evening he and his girlfriend, Michelle Hughes, had had an argument, because she wanted to break off their relationship.

After his release from custody, defendant and Hughes continued to live together. But their relationship continued to deteriorate, and a few days before the collision, Hughes moved out of the bedroom. This arrangement upset defendant.

On October 26, 1998, defendant and Hughes got into an argument. Hughes informed defendant she no longer wanted to even be friends. In the course of the fight that ensued, defendant repeatedly threatened suicide and discussed various means of killing himself. He straddled Hughes and put his hands on her neck, telling her he wanted her to hate him "so that [she] would let him kill himself." Defendant broke a candleholder over his head and held a knife pointed toward his chest. Defendant told Hughes "he wanted to sit in his car in our garage with the car running." Later, Hughes found him in the car with the engine running. Defendant also poured gasoline on a rag and "mentioned putting it in his gas tank." Finally, before leaving the house, defendant told Hughes he had considered other options for killing himself, but thought the garage method would be the best.

An accident reconstruction expert testified that "neither party applied the brakes hard enough to make the tires lock and leave skid marks...." Both vehicles had their low beam headlights on, and there were no mechanical defects in the braking system of either vehicle. Defendant was not wearing a seatbelt at the time of the collision.

Defendant's car was traveling between 63 and 76 miles per hour in a 50-mile-per-hour zone. At the time of impact, his car was three and one-half feet over the center line and turned "approximately eight degrees" toward Tenney's truck. The steering components of defendant's car indicated he had tried to steer sharply right, away from Tenney's truck. However, due to the speed he was traveling and the "lag time" between steering input and a change of direction of the car, there was not sufficient time for the vehicle to actually turn. The reconstruction evidence also indicated that defendant's car did not simply drift across the center line. Also, because the road was slightly higher at the center than on the shoulder, if a driver removed his hands from the steering wheel, the car would "tend to go to the right" or away from Tenney's truck.

Over defense counsel's relevancy objection, Brian Tenney's teenage son, Alex Tenney, was allowed to testify. Alex identified a picture of his father, testified his father was an electrical contractor who drove a white pickup truck with utility beds on it. Alex also testified his father usually went to work between 5:00 and 6:00 o'clock in the morning. On the morning of October 27, 1998, he saw his dad leaving for work. Brian had walked through his son's room, so as not to wake Alex's mother. As he was passing through, he woke Alex. Alex said, "Hi, Dad," and Brian said hello, then Alex said goodbye. Alex also testified the collision site was approximately a mile and one-half north of their home, and north was the direction that his father usually traveled to work. In his defense, defendant presented evidence that he was not suicidal. Police interviews with Hughes in October and November 1998, revealed that Hughes was not certain whether defendant was actually planning to kill himself or just trying to make her feel guilty over their separation.

Dr. Paul Wuehler, a forensic psychologist noted that in his review of the various records, defendant had not been placed on a suicide watch at the hospital by either hospital that provided him treatment after the collision, nor had defendant ever been hospitalized for medical problems. Dr. Wuehler also testified that people who are serious about suicide, particularly men, do not tell others of their intentions ahead of time. Dr. Wuehler specifically indicated that defendant's suicidal comments during the October 26, 1998, argument with Hughes appeared to be an attempt to manipulate Hughes into changing her mind about breaking up with him. Defendant also presented evidence that from January 1989 through July 1999, there were 200 accidents in the vicinity where this collision occurred. Ten of those accidents were head-on collisions, three of which were alcohol or drug related.

On June 4, 1999, defendant was charged by information with the murder of Brian Tenney in violation of Penal Code section 187. Jury trial commenced on March 7, 2000, and on March 20, 2000, a mistrial was declared because the jury could not reach a unanimous verdict. Retrial commenced on September 20, 2000. On September 29, 2000, after approximately seven hours of deliberations, the jury returned a verdict finding defendant guilty of second degree murder. Defendant was sentenced to 15 years to life.

(Doc. No. 4, Ex. C at 1-5 (hereinafter Opinion).) /////

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Procedural Default

Respondent asserts that with the exception of petitioner's claims challenging the admission of Alex Tenney's testimony, certain jury instructions and whether he received effective assistance of counsel (claims one, two and four), his remaining claims are procedurally barred. In this regard, respondent notes that petitioner's claim that the prosecution was improperly allowed to introduce hearsay statements into evidence (claim three) and his claim that he was not tried by a jury of his peers (claim five) were raised in petitioner's March 14, 2003 habeas petition filed in the Yolo County Superior Court. (Answer at 23-24, 30.*fn2 ) Respondent argues that the Yolo County Superior Court denied habeas relief with respect to those claims on the grounds that the claims should have been raised on direct appeal pursuant to the rule established in In re Dixon, 41 Cal. 2d 756 (1953). (Id. at 24, 30.)

Respondent also asserts that petitioner's claims that his conviction was the result of an overzealous prosecution (claim six), that there was insufficient evidence introduced at trial to support his conviction (claim seven), and that the evidence presented at his trial supported only a conviction on a lesser offense (claim eight) were raised in petitioner's habeas petition filed in the California Supreme Court on August 15, 2008, and that petition was denied with citations to the decisions in In re Robbins, 18 Cal. 4th 770, 780 (1998), In re Clark, 5 Cal. 4th 750 (1993), In re Lindley, 29 Cal. 2d 709 (1947), and in In re Dixon, 41 Cal.2d 756, 759 (1953). (Answer at 35, 38, 42.)

Respondent contends that these rulings by the Yolo County Superior Court and the California Supreme Court constitute a procedural bar, precluding this court from addressing the merits of the claims rejected on procedural grounds by the state courts.

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule for these purposes is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the challenged claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

A reviewing court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim where the default issue turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004). Under the circumstances presented here, this court finds that petitioner's claims can more easily be resolved by addressing them on the merits. Accordingly, this court will assume that petitioner's claims are not procedurally defaulted. Below, the court will address each of petitioner's claims on the merits.

B. Testimony of Victim's Son

Petitioner claims that the trial court erred in allowing the victim's son, Alex Tenney, to testify at trial. Petitioner argues that the testimony in question was irrelevant and prejudicial. (Am. Pet. at 4.)

The California Court of Appeal specifically rejected petitioner's challenge to Alex Tenney's testimony. In doing so, the court reasoned as follows:

Defendant contends the trial court committed reversible error by admitting the testimony of the victim's son, Alex. He argues the testimony was both irrelevant and "[i]n the alternative, any marginal relevance of the boy's testimony was outweighed by its prejudicial nature." In both respects, defendant's argument is insufficient.

Relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The trial court has great discretion in deciding to admit or exclude evidence and its decision is reviewable only for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Absent a showing that the trial court exercised its discretion in an "arbitrary, capricious, or patently absurd manner" which caused a miscarriage of justice, its ruling will stand. (Id. at pp. 9-10.) Assuming that Alex's testimony was not relevant to any issue in dispute at trial, defendant has made no showing that the admission of this testimony resulted in a miscarriage of justice.

We first note that Alex's testimony represents approximately a page and one-half in almost 400 pages of trial transcript. More importantly, the record contains strong evidence that defendant was intent on committing suicide, and ultimately decided to achieve this goal by causing a head-on collision.

Approximately one month prior to the accident, after his girlfriend told him she wanted to break up, defendant was found on a rural road, in his underwear and a bathrobe with a loaded gun. He told the officer who found him that he was going to commit suicide.

On October 26, 1998, defendant and his girlfriend had another argument about terminating their relationship. During this argument, defendant repeatedly threatened suicide. He indicated he wanted to sit in the car in the garage with the car running, and in fact started the car running with the garage closed, held a knife pointed to his chest, and poured gasoline on a rag and "mentioned putting it in his gas tank." Defendant also told his girlfriend he had contemplated various methods of killing himself, including driving his car into water.

The accident reconstruction team determined there were no mechanical defects in the braking systems of either vehicle and the headlights of both were on at the time of the collision. Defendant was not wearing his seatbelt, and had been traveling between 63-76 miles per hour in a 50-mile-per-hour zone. The sharp angle of impact indicated it was unlikely that defendant's car had simply drifted into the oncoming lane. Similarly, the banking of the road suggested if a driver took his hands off the wheel, the vehicle would have gone off to the shoulder, not toward oncoming traffic. Finally, after the accident, defendant told the responding emergency workers he was trying to commit suicide. He also indicated he had caused the collision on purpose.

Alex identified a picture of his father, confirmed his father was an electrical contractor who drove a white pickup truck with utility beds, and testified he saw his father leave the house for work the morning of the accident. His father walked through Alex's room so as not to wake Alex's mother, and the father and son greeted each other. Finally, Alex indicated the accident occurred approximately a mile and one-half north of their home.

In the face of the strong evidence that defendant intended to commit suicide by causing this collision, we are not persuaded that the admission of Alex's ...


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