United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Introduction and Summary
Petitioner, Raymond Martin, was convicted of first degree, special circumstance, felony murder, and was sentenced for that crime to life imprisonment without the possibility of parole. He was also convicted of the subsidiary burglary and robbery charges (for which he received stayed sentences), an assault for which he received an additional nine years, and finally, an additional one year for being a principal armed with a firearm.
Several significant issues are raised, and one less significant:
1. Due process was violated when the trial court permitted into evidence a hearsay statement which was conceded to be untrustworthy in part, and which the prosecutor knew to be incorrect/untrustworthy (Napue claim as to the latter assertion);
2. The alleged error in ground 1 constituted a denial of Sixth Amendment confrontation rights (Bruton error);
3. Due process was violated when the police tainted a witness by disclosing to her that petitioner made a threat on her life;
4. The trial court committed error by precluding key defense evidence at a pretrial Miranda hearing;
5. The trial court committed error by not having the jury instructed regarding involuntary manslaughter.
For purposes of general background, the parties, although vigorously contesting the admission of certain evidence, do not dispute that the evidence recounted by the Court of Appeal was correctly set forth.'
The victim, Doug Cline, and his roommate Jeff Alexander shared a duplex. Cline worked in construction, but also sold small amounts of methamphetamine to his friends. Among Cline's friends were Travis Harris, who was Gregory's "street father" (i.e., not Gregory's biological father, although he treated Gregory as such), and Christopher Robison, Gregory's "street uncle."
On December 26, 2005, Cline, Gregory, and Harris were at Cline's house in the bedroom, and Cline and Harris were playing video games. Cline told Gregory that he did not want Gregory bringing Martin to his house. Before long, Cline and Gregory were fighting, and Cline ended up with a red eye. Harris took Gregory out of the room, and Gregory left the house.
The next day, December 27, 2005, Gregory and Mason showed up at Cline's house around 8:00 or 8:30 p.m. Gregory was wearing a 49er jacket. Gregory told Cline he wanted his money back for some bad dope. Cline told Gregory to have Harris bring back the dope. Harris testified that Gregory said that he got into an argument with Cline, and that Cline would not let him in the house. Gregory reported that Cline had told him, "FU, you're burnt, " and shut the door in Gregory's face. Gregory was mad.
Defendants at trial were petitioner, Vincent Gregory, and Stanley Mason.
A little later that night, Nicole Fernandez, Gregory's girlfriend, heard Gregory and Mason talking. They were talking about collecting $200 from someone that had ripped them off. Fernandez figured out that they were talking about Cline, and that they planned to rob him. Gregory, Mason, and Fernandez were at the apartment of Ericka Reed with Robison and Jessica Marsh. They did some methamphetamine, and Gregory and Mason left.
At 12:45 a.m. on December 28, Gregory called Martin. Martin did not want to talk to Gregory, but Gregory persisted, calling repeatedly until around 1:00 a.m. Finally, Harris called Martin around 1:15 a.m., and Martin took the call. After Martin talked to Harris, Gregory called Martin again, and Martin took the call. Immediately afterward, Martin had his girlfriend, Danielle Davison, give him a ride to an apartment that belonged to Martin's friend, Lisa Lindeman. Lindeman's daughter, Amanda Miller, and Amanda's boyfriend were living at the apartment. Also at Lindeman's apartment were Gregory and Mason. Gregory had a black commemorative handgun. Gregory was showing off his gun, saying, "Look what I have." Davison told police that while they were at Lindeman's house, she overheard a plan to rob Cline. Gregory asked Miller if she had any pantyhose that he could put over his face.
Martin and Davison left the apartment around 5:00 a.m. Gregory and Mason left around the same time. Gregory was driving his girlfriend's car with Mason as a passenger. Martin drove another vehicle, and Davison followed in her car. Davison understood they were going to Harris's house.
Along the way, Martin drove his vehicle (which belonged to Lindeman) into Davison's car and another car. The three vehicles carrying defendants and Davison left the scene of the accident without stopping and parked on a side street, where they emptied the contents of the car Martin had been driving into Davison's vehicle. Martin proceeded on in Davison's car with Davison driving. Gregory called Martin on Davison's cell phone and said he had decided not to go to Harris's, but instead to go rob Cline, and Martin agreed. Around 5:30 a.m. Davison let Martin out of her car, and he climbed into the car with Gregory and Mason. Before leaving Davison's car, Martin grabbed a long dark coat with a fur collar.
Martin, Gregory, and Mason went to Cline's house. Martin and Gregory went into Cline's bedroom and found Cline and Anna McDonald asleep on Cline's bed. Gregory tied Cline's hands with zip ties. They took Cline's money from his wallet and some dope from the bathroom.
McDonald woke up to a man standing over her and pointing a gun at her. He was wearing a black ski mask with a white bandana tied around it, a baseball cap, and a 49er jacket. The other person had on a dark blue parka with fur around the hood and a light blue ski mask. Cline's hands were tied up in front of him with plastic zip ties, and he was awake.
There was a third intruder at the door of the bedroom. He was wearing a black mask. Cline said to the person holding the gun, "Why are you doing this, Vince [?]" Cline asked this over and over, saying, "Vince, why are you doing this? I have kids. I have a daughter and-two daughters and family, you know." Finally, the man with the gun said, "Why does he keep on saying my name?"
The man with the gun (Gregory) asked Cline where his keys were. They found the keys and started to go to Cline's truck. At this point, Cline said, "Fuck this, " and charged Gregory. Gregory fired at Cline, and Cline fell towards the gunman. The gunman shot twice more. McDonald was shot in the leg. Cline fell to the floor, and the intruders ran out.
Alexander, the roommate, was awakened by the gunshots. He saw three men run past the open door of his bedroom. Alexander came out of his bedroom and called 911.
Sometime between 6:00 and 7:00 in the morning, defendants arrived back at Reed's apartment, where Robison, Fernandez, Marsh, Reed, and others were. They stayed there about 20 minutes. While they were there, they were going in and out of the bathroom and using profanity. Gregory was saying "Everyone get the F away from me, don't touch me, " and was very agitated, hyper, and upset. Mason kept looking out the front window. He was "white as a ghost." Both Gregory and Mason appeared stressed.
Robison asked Gregory what had happened because Mason "was freaking out." Gregory said that things had gone bad at Cline's, and that Cline got shot. Robison tried to help Gregory come up with a plan, and told Gregory to get out of town and to make sure he took everything he had brought with him to Reed's apartment. Gregory also told Fernandez that he shot Cline twice, the first time in the gut. Later, Fernandez heard Mason say they had either blasted or booted someone in the head.
Gregory called Harris's cell phone. Gregory was distraught and crying. Harris met Gregory at Harris's house. Gregory was carrying a black semi-automatic handgun. He was fidgety and appeared to be under the influence of methamphetamine.
Gregory told Harris that he thought Cline was dead. He said that Martin told him to shoot, and he shot Cline. Gregory told Harris that both he and Martin had been armed. He said he shot Cline in the chest and head.
Around 7:45 or 8:00 a.m., Reed found a cell phone outside her apartment. She took it back to her apartment, where it started ringing. Reed answered the phone in speaker mode. The person on the other end asked for Doug. Robison assumed it was Cline's cell phone, and started making motions with his hand across his throat telling her to cut off the call. Robison then wrote on a yellow pad, "Hang up, bad, got problems with my nephew[.]" Robison made her give him the telephone. Robison broke the phone and threw it in a dumpster.
The authorities, having spoken with McDonald and determined that Gregory was a likely suspect, went to Harris's address at approximately 9:00 a.m. They set up surveillance at the residence. As they watched, Fernandez and Gregory pulled up and parked in front of Harris's residence. Christine Shepherd, Harris's girlfriend, came out of the residence and got into the car. As the car left the house it lost traction and was hit by a pickup truck. An officer observed Gregory get out of the car and fumble with something at his waistband. He then stuck his hand into the pockets of his sweatshirt and held his hands tight against his waist. He walked back into Harris's house, was gone about a minute, then came back. When he returned, he was no longer clutching his waist, but had his hands down by his side. Gregory later told detectives that he put the gun under the sink under a garbage bag.
The gun was retrieved from the location given by Gregory. The gun was test fired, and the cartridge casings matched those recovered from the murder scene. The bullet recovered from Cline's body was also fired from the gun. A number of items were recovered from Fernandez's house, including Cline's wallet, containing his photo identification and three masks, as well as clothing consistent with that worn by Cline's attackers. DNA testing was performed on some of the items found. DNA consistent with Mason's was found on a white sleeve that had been torn off a shirt and fashioned into a mask. Another mask appeared to have been fashioned out of a black shirt and a white bandana. This mask contained DNA consistent with Gregory's DNA. The white bandana contained a blood stain that was consistent with Cline's DNA. Cline's blood was also found on a glove. Another pair of gloves contained DNA consistent with Martin's DNA.
People v. Martin, 2010 WL 2282095.
The AEDPA legal standards play a significant role in this habeas case; thus, they are explicated at some length.
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.' Harrington v. Richter , 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed , 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.' Harrington, supra , 131 S.Ct. at 785, citing Williams v. Taylor , 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).
Accordingly, "a habeas court must determine what arguments or theories supported or... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id . "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id . Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade , 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins , 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti , 537 U.S. 19, 123 S.Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra , 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten , 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin , 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer , 537 U.S. 3, 9, 123 S.Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra , 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson , 336 F.3d 848, 853 (9th Cir. 2003).
Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. Stanley v. Cullen , 633 F.3d 852, 860 (9th Cir. 2012). However, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___ , 133 S.Ct. 1088, 1091 (2013).
Ground One-Due Process/Confrontation Clause Error in the Admission of Untrustworthy-in-Part, Out of Court Statements
The issue here involves the unusual situation where part of an out-of-court hearsay statement of one of the co-defendants, placed before the jury and pertinent to petitioner's guilt, was later conceded by the prosecution not to have been said; but that because other aspects of the co-defendant's statement were corroborated, there was no constitutional problem in the admission of the entire out-of-court statement. While the undersigned cannot completely adopt the reasoning of the appellate court in this regard, and the issue is not decided pursuant to AEDPA, the undersigned finds that a Napue error occurred but that the alleged error is harmless in light of all the factual circumstances.
The undersigned first sets forth the factual background of this issue as set forth by the Court of Appeal, but adds some focus on very significant factual circumstances. Then, the undersigned separates out the extraneous issue of state hearsay law versus the federal issues in this case. Next, the reasoning of the California appellate court is given followed by the undersigned's analysis.
Gregory made a statement to Harris that was the subject of a motion in limine. The prosecutor argued that Gregory's statement to Harris that Martin told him to shoot Cline was a statement against penal interest, and was therefore an exception to the hearsay rule. The trial court ruled that the statement was admissible as a statement against penal interest, and was also admissible as a spontaneous declaration. The trial court found the statement was not testimonial in nature, and that it was made with sufficient indicia of trustworthiness to be admitted.
At trial, Harris testified Gregory told him Cline was dead. Gregory said that Martin had told him to "Shoot, shoot." Harris told the officers who interviewed him that Gregory admitted to shooting Cline.
Martin's attorney elicited from Harris that Gregory claimed Martin shot Cline in the chest, and that when Cline was being robbed he said, "I know it's you, Vince. I know who you are, Vince and Raymond. I know it's you. I know it's you. You're not robbing me."
When the prosecutor discussed Gregory's statement to Harris during closing argument, he told the jury to be cautious of the statement of an accomplice, and that Gregory clearly was an accomplice. He reminded the jury that it could not use the statement of an accomplice to prove a fact unless there was corroborating evidence. He then argued:
"Well, you gotta be careful with this, because we know from Anna McDonald that these things were not said. She was there. She's got no dog in this fight. She's got no spin as far as what it is these intruders are saying. And she does not say anything about anybody saying-or Doug Cline saying, It's you, Vince ...