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Jones v. McEwen

United States District Court, Ninth Circuit

May 13, 2013



DOLLY M. GEE, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner and Respondent have objected.

Although Respondent takes no issue with the Magistrate Judge's recommendation that the petition be denied with prejudice, Respondent believes that the Magistrate Judge has misconstrued Petitioner's fifth claim for relief. In that claim, Petitioner, who is represented by counsel, alleges prosecutorial misconduct based, in part, on the prosecutor's decision to play a recording that had not been admitted at trial. In his Petition, Petitioner describes the recording as follows: "The recording in question consisted of a telephone conversation between Petitioner and his girlfriend during which, while not confessing, he expressed remorse for recent events." (Petition, Points and Auth. at 26.) Despite Petitioner's clear identification of the recording at issue, Respondent maintains that Petitioner's claim actually involves a different recording. Specifically, Respondent contends that the claim centers around the portion of the prosecutor's closing argument during which she played a recording of an interview with Petitioner's co-defendant, who was tried separately from Petitioner. (Objections at 2.) In his direct appeal, Petitioner alleged that the use of this portion of the recording constituted prosecutorial misconduct because it was not admitted into evidence. As such, Respondent believes that his interpretation of Petitioner's claim better reflects the prosecutorial claim addressed by the California Court of Appeal when it affirmed Petitioner's conviction.

The Magistrate Judge's Report properly and adequately addresses the claim asserted by Petitioner. Because Petitioner is represented by counsel, there is no need to re-write Petitioner's claim, as Respondent urges the Court to do. Regardless, even if the Court was to consider the claim as set forth in Respondent's objections, that claim would fail because the jury was admonished to disregard the offending portion of the videotape. Absent extraordinary circumstances, a jury is presumed to follow an instruction to disregard irrelevant or improper evidence inadvertently presented to it. Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Accordingly, when a trial court timely admonishes the jury to disregard a prosecutor's improper comments, a due process claim based on the purported impropriety will typically fail. See Greer, 483 U.S. at 765-66 (explaining that sequence of single question, immediate objection, and curative instructions "clearly" indicated the prosecutor's improper question did not violate due process); Turner v. Marshall, 63 F.3d 807, 817 (9th Cir. 1995) (noting that curative actions by trial court when confronted by improper comments "are usually presumed to neutralize damage such that any error was harmless"), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) ( en banc ).

The Court, therefore, accepts the findings and recommendations of the Magistrate Judge, with the following modification, see 28 U.S.C. § 636(b)(1)(C), which is not material to the Court's decision: at page 16, line 20, the word "the" is stricken and replaced with the word "a."

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