United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The parties have consented to the jurisdiction of the undersigned. ECF Nos. 4 & 8. Petitioner contends that his right to a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution was violated by the trial court's admission of a "blood volume experiment." ECF Nos. 1 & 13 at 4. Respondent has answered. ECF No. 9. Petitioner has filed a traverse. ECF No. 13.
For the reasons that follow, the petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Felipe Cruz Hernandez was charged with the first degree murder of his wife, Leticia Barrales Ramos. 2 CT 373-74. Her body was never found. A "blood volume experiment" that was conducted by an FBI agent, and the results of the experiment, were admitted into evidence at trial. 8 RT 2162-205. This experiment was offered to show that blood stains found under the couple's carpet - which was linked to Ms. Ramos by DNA analysis - indicated that Ms. Ramos had suffered a fatal amount of blood loss. 8 RT 2162-205.
Petitioner's counsel had earlier argued for the exclusion of this evidence on the ground that it was produced too late, and that it was unreliable since the experiments were still on-going. 8 RT 1137-42. However, once the experiments were completed, petitioner's counsel did not again raise the issue of whether the evidence was reliable. Specifically, she did not object on the ground that the evidence was unreliable or that it did not meet the legal standard for the admission of such evidence. Petitioner's counsel examined the agent about the experiment outside the presence of the jury. 8 RT 1154-58. Counsel cross-examined the agent before the jury on the merits of the experiment. 8 RT 1792-819 and 1835-39, 10 RT 2917-69, 11 RT 2982 and 2999-3003 and 12 RT 3379-83. Finally, counsel presented two experts to rebut the agent's testimony and evidence. 11 RT 3091-3208; 11 RT 3215 to 12 RT 3296.
Petitioner was convicted of second degree murder. 3 CT 730-31. The sole issue presented on appeal and in the federal habeas petition is a challenge to the evidence of the blood volume experiment.
II. The Evidence at Trial
A. Ms. Ramos Goes Missing; the Investigation
On March 20, 2009, Leticia Barrales Ramos filed for divorce from her husband, petitioner Felipe Cruz Hernandez, and sought custody of their 10-year-old daughter. Ms. Ramos served divorce papers on petitioner on March 23, 2009. She had been dating another man, and petitioner suspected that she was cheating.
On April 11, 2009, Ms. Ramos attended a party with petitioner's niece. After the party, Ms. Ramos and the niece returned to their respective homes. That night, the couple's neighbor heard someone crying and movement on the stairs. On April 12, 2009, Ms. Ramos was gone. On that morning, the niece - who was in possession of Ms. Ramos's wallet containing her identification and $1, 050 in cash - went to Ms. Ramos's apartment, as planned, but Ms. Ramos was not there. Petitioner told the niece that Ms. Ramos had gone to "Carolina" on an emergency basis to visit a relative. Later, petitioner told others that Ms. Ramos had gone to "North Carolina" because her brother had been in an accident.
That same day, petitioner's brother saw 15 to 20 dried blood droplets and a blood smear on the passenger door frame of petitioner's truck. Petitioner cleaned the blood off and explained that a friend had hurt himself. Later, forensic testing matched blood from the rear floor mat of petitioner's truck to Ms. Ramos. On April 13, 2009, after petitioner got off work, he rented a Rug Doctor® carpet cleaner and upholstery tool, and returned them the following day. Blood was found on the upholstery tool, but was never identified. Also on April 13, 2009, the niece entered the couple's apartment and noticed that some furniture had been moved.
On April 14, 2009, after Ms. Ramos's supervisor called the police about his missing employee, a police officer conducted a welfare check at the apartment where the couple lived and interviewed petitioner. Petitioner told the officer that Ms. Ramos had gone to Mexico to help a sick relative. Notwithstanding the divorce papers Ms. Ramos had served upon him a month earlier, petitioner told the officer that no divorce proceedings were pending and that everything was fine between his wife and him. The officer saw no sign of a crime in the apartment.
Petitioner then began telling people that his wife had been seen in Mexico but was having trouble returning as she lacked authorization to be in the United States. He told people that he had received a call from someone who said Ms. Ramos was in Mexico, and was having trouble getting a visa, but that she would call petitioner later. Petitioner discouraged people from contacting the police or putting up fliers because, he said, his wife was obtaining fake documents so that she could return to this country.
On April 20, 2009, Ms. Ramos's cousin filed a missing person report with the authorities. The cousin then received a call from a man claiming to have seen Ms. Ramos at the border. The niece also received a call, apparently from the same man, claiming to have seen Ms. Ramos trying unsuccessfully to cross the border. The FBI assisted in the missing person investigation, and searched unsuccessfully for Ms. Ramos in Mexico.
On May 12, 2009, petitioner gave a statement at the police station. He told the police that on the night of April 11, 2009, his wife told him that she was getting a ride with friends to the airport because her brother needed her.
On May 28, 2009, FBI agents executed a search warrant at the couple's apartment. They found blood stains on four pieces of living room furniture and on an altar of saints in the hallway, a piece of hair with the root intact that had been forcibly removed, and blood spatter. DNA testing showed that the blood and the hair belonged to Ms. Ramos. The living room carpet tested positive for blood. When FBI agents pulled back the carpet, they saw several enormous bloodstains that had soaked through the carpet and the carpet pad onto the concrete floor. The stains spanned a total surface area of approximately 16.6 feet. DNA tests revealed the blood on the carpet belonged to Ms. Ramos. Petitioner was arrested that same day, May 28, 2009.
Petitioner's sister visited petitioner at the jail. During one visit, petitioner told his sister that if blood was found in his apartment, he wanted her to call his lawyer and falsely state that she saw Ms. Ramos have a miscarriage or an abortion in the apartment. During another visit, petitioner asked his sister to phone Ms. Ramos's family in Mexico, pose as Ms. Ramos, and say that she was fine. Petitioner also asked his sister to have Ms. Ramos's family call the police and report that Ms. Ramos was fine.
B. Initial Defense Challenge To Blood Experiment
FBI Agent John Cauthen, who was present at the search of the apartment, testified that the blood in the carpet was more than he had seen in other crime scenes where the victim had bled to death. 4 RT 1101-02. He compared the blood stains to those he had seen at the scene of beheadings. RT 1708. Cauthen revealed that tests were being conducted to determine what volume of blood would cause the stains that were discovered under the carpet. 4 RT 1103-04.
Outside the presence of the jury, petitioner's counsel argued that those test results should be excluded because they were late discovered evidence. 4 RT 1137-42. Counsel contended that the prosecutor had first provided discovery relating to these tests on the same day - November 24, 2009 - that Cauthen had revealed their existence on cross-examination. Id. at 1137. Counsel argued that the FBI had discovered the blood stains under the carpet six months before - on May 28, 2009 - but had not conducted any blood volume tests until two days after the trial had started, thus ambushing petitioner and depriving him of the opportunity to cross-examine on the experiment. Id. at 1138 39. Counsel also argued that the results would be unreliable because the tests were still being conducted. Id. at 1139. Counsel did not argue about the merits or validity of the test results or the technique used to generate them. Id. at 1137 42. When asked if she had "anything further?" petitioner's counsel continued to argue only that the evidence was being produced too late. Id. at 1142-43.
The trial court declined to exclude the test results at that point on late discovery grounds, and added,
[N]ow, whether or not this information is reliable or what the testing shows, of course, I have no information on that at this point, and we'll have to take that one step at a time....
4 RT 1143.
C. Testimony of FBI Agent Hopkins and Evidence of the Blood Experiment
Petitioner's counsel examined Agent Hopkins, who had devised and conducted the experiment, in a hearing outside the presence of the jury pursuant to Cal. Evid. Code § 402. 4 RT 1154-58. Near the end of the hearing, the trial court asked the defense twice whether there was "anything else?" 4 RT 1156, 1158. Petitioner's counsel did not raise the issue of reliability, nor did she request exclusion of the experiment evidence under People v. Kelly, 17 Cal.3d 24 (1976) ("Kelly"), or indicate that she might do so at a later time.
On direct examination before the jury, Hopkins testified in relevant part as follows:
Q. And based on your findings at the apartment itself, and I am just talking about the bloodstain on the carpet... did that cause you to do any further investigation in order ...