United States District Court, C.D. California
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Marilee Marshall, Marilee Marshall & Associates, Los Angeles, CA, for Petitioner.
J. Michael Lehmann, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
VALERIE BAKER FAIRBANK, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which respondent has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment be entered granting the First Amended Petition, and that respondent release petitioner unless the State of California elects to retry petitioner within 90 days from the date of this order.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SHERI PYM, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On November 16, 2010, petitioner Prentiss Griffin, a California prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, challenging his 2006 murder conviction that followed the admission of unsworn testimony at his trial. On
November 24, 2010, petitioner filed a First Amended Petition (" FAP" ) and Memorandum in Support of First Amended Petition (" FAP Mem." ), which the court ordered filed and served on December 13, 2010. On April 29, 2011, petitioner, now represented by counsel, filed a Supplemental Memorandum in Support of First Amended Petition (" FAP Supp. Mem." ).
The FAP and supporting memoranda raise three claims for relief: (1) the admission of unsworn testimony and out-of-court statements violated petitioner's Due Process and Confrontation Clause rights; (2) petitioner was denied effective assistance of counsel when trial counsel failed to timely object to the admission of a witness's unsworn testimony; and (3) the evidence was insufficient to support the jury's verdict regarding petitioner's murder conviction. On June 17, 2011, respondent filed an answer, arguing that a portion of petitioner's claim in ground one is procedurally barred for failure to comply with California's contemporaneous objection rule, but that, in any case, the California courts' rejection of each of petitioner's claims was reasonable.
The unsworn testimony in this case was given at trial by the only witness to identify petitioner as the shooter. After refusing to take the oath, and without any objection from petitioner's trial counsel, the witness (as expected) recanted his statements identifying petitioner as the shooter, which then allowed the prosecution to introduce the witness's prior inconsistent statements made in a recorded interview that incriminated petitioner. Although the admission of unsworn evidence violates the Confrontation Clause, this court finds that the California courts properly rejected petitioner's claim that the trial court violated his rights, since petitioner waived his confrontation right by failing to object at trial. But the California courts' finding that petitioner did not receive ineffective assistance of counsel is another matter.
Based on the court's review of the trial record, the California Court of Appeal's finding that petitioner's trial counsel was not ineffective depends upon an unreasonable determination of the facts. First, the Court of Appeal determined that trial counsel's failure to object to the unsworn testimony was a reasonable tactical decision, despite the fact that trial counsel submitted a declaration stating it was a mistake, and even though the only way the witness's prior incriminating statements could have been excluded was if he had not been allowed to testify. Second, the Court of Appeal determined that the failure to object was harmless because any objection would surely have resulted in the witness taking the oath, even though the record shows that he had already refused to do so, and the trial judge who had dealt with him opined at the time that it was unlikely the witness would take the oath if recalled and pressed to do so. By failing to object to the unsworn testimony, petitioner's trial counsel missed his one chance to keep out the most incriminating evidence in the case. This was ineffective assistance. Accordingly, the FAP should be granted and an order should be issued directing respondent to release petitioner unless the State of California elects to retry petitioner within 90 days of the filing of the order.
STATEMENT OF FACTS
This court has independently studied the state court record because petitioner is challenging the sufficiency of the evidence to support his conviction. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.1997).
A. Prosecution Evidence
One man was killed and another wounded by gunshots fired from several areas of
a parking lot at the Artesia Transit Center at around 1:00 a.m. on March 5, 2005, when a gathering of rival gang members and others turned violent. Petitioner is a member of the Grape Street Crips street gang. Reporter's Transcript (" RT" ) at 371. Dwin Books, the decedent, was a member of the Bounty Hunter Bloods. Id. Nearly a year later, Fred Wilberger, who was then in prison on federal gun charges, told a police detective that he was there and saw petitioner fire gunshots at both victims. RT at 606-08. Petitioner was arrested and charged with murder and attempted murder. RT at 620; Clerk's Transcript (" CT" ) at 28-32 (Information). When petitioner was arrested and taken to the Harbor division police station in San Pedro, he asked the officer where they were going and said, " I didn't do a murder down there. I thought we were going to the L.A.P.D.," which has a division facility close to the Transit Center. RT at 623.
At trial, Waylon Walton, the surviving victim, testified. RT at 327. Walton was not a gang member, but was at the Transit Center to talk to girls. RT at 329, 336. When he heard shots, he did not realize at first that he had been shot. RT at 329-31. He did not know Dwin Brooks and did not see anyone doing the shooting that night. RT at 336. Walton had not seen any arguments prior to the shooting. Id. He had never seen petitioner before and did not see petitioner at the Transit Center that night. RT at 337, 341.
Petitioner's trial counsel knew in advance that Wilberger would testify reluctantly and would likely recant his statements to the police. RT at 343. Counsel also knew the jury would likely hear Wilberger's police interview, and thus in advance of Wilberger's testimony, counsel moved to strike a limited portion of the statement he believed was inflammatory and prejudicial, which motion the court granted. Id. at 343-45.
The state called Wilberger to the witness stand. RT at 351. The clerk told Wilberger to raise his right hand and read him the oath. RT at 353. Silence apparently followed because the clerk then said, " I need a response, an answer." Id. Wilberger said, " No." Id. The trial judge thereafter removed the jury from the courtroom and addressed the witness. The following dialogue ensued:
Trial judge: You have been told to swear to tell the truth. Do you understand that?
Wilberger: Yes, Ma'am.
Trial judge: How old are you?
Trial judge: So you're old enough to know what the truth is, right?
Wilberger: Yes, Ma'am.
Trial judge: All right. We're going to proceed with your testimony. Do you understand that?
Wilberger: Yes, Ma'am.
RT at 354. The trial judge then instructed the prosecutor to take Wilberger as a hostile witness and proceed with questioning. Id.
Direct examination commenced. Id. Petitioner's trial counsel did not object prior to the direct examination of Wilberger. On direct examination by the prosecutor, Wilberger answered every question, but denied all knowledge of petitioner and the shooting, and also denied having ever identified petitioner to the police. RT at 355-64. Petitioner's counsel cross-examined Wilberger with just two questions: had he
ever seen petitioner before, and had he seen petitioner on March 5, 2005. RT at 364-35. Wilberger answered " No" to both questions and was excused as a witness. Id.
The following morning before the jury was brought out, the trial court discussed with counsel the recording of the conversation between Wilberger and Detective Weber, the police detective who conducted the interview where Wilberger identified petitioner as the shooter, ordering that a portion of it be deleted. RT at 601. The prosecutor said she planned on playing the tape by recalling Detective Weber the following morning, since she needed time to edit the tape and Detective Weber was already ready to take the stand that morning. Id. at 601-602.
The examination of Detective Weber commenced. Id. at 603. Without explanation for the change in schedule, the prosecutor asked the detective about his interview with Wilberger to begin laying the foundation to introduce the tape. Id. at 608; Cal. Evid. Code, § 1235. At this point, petitioner's counsel asked to go on record at sidebar. RT at 608. Petitioner's counsel said, " I just want to object for the record for the tape coming in because Mr. Wilberger didn't give us any sworn testimony yesterday." Id. at 609. The prosecutor was flummoxed by the objection, saying she did not know the law in this area and that the objection was not something she expected from counsel. Id. The prosecutor asked first if she could take a recess to research the law on point and second whether Mr. Wilberger could be recalled to re-administer the oath to him. Id. at 609-610. The trial court denied the request to recall Mr. Wilberger, as the trial court was skeptical that Wilberger would then take the oath when he previously refused, and stated it would not recall Wilberger unless the prosecutor knew he would take the oath. Id. at 610.
Following a recess, the prosecutor argued and the trial court agreed that petitioner's counsel had waived the objection by not objecting immediately and by conducting a cross examination. Id. at 611. As part of this discussion, both the trial court and the prosecutor pointed out that petitioner's counsel made no previous objections to the oath-taking, and petitioner's counsel did not dispute this, although he did dispute the legal conclusion that this amounted to a waiver of the objection. Id. at 611-12. Evidence of Wilberger's statement to the police was then put in evidence. RT at 613. In that taped statement, Wilberger told detectives that he saw the shooter, he thought the shooter's name was " Prentiss," and he believed the shooter could be either of two persons in a poor-quality photo six pack he was shown. CT at 78, 89.
Nartrella Williams, Dwin Brooks's girlfriend, also testified at trial. RT at 370. Williams met up with Brooks and Wilberger at the Transit Center on the night of the murder. RT at 371-73. Williams also saw petitioner, with whom she had a previous sexual relationship, with his purple Regal car that night. RT at 375, 409. Williams witnessed a group of men come up to her, Brooks, and Wilberger and " gang bang on them." RT at 375-76. Wilberger responded in kind. RT at 376. The rival men then walked away. RT at 377. Williams urged Brooks to leave at this point, and Williams and her friends started to leave. Id. Petitioner, who was by his car, then signaled to Williams with one of his hands that she should leave or move out of the way. RT at 378. Williams could not ...