Pippin v. Unknown

Filing 25

ORDER signed by Senior Judge Terry J. Hatter, Jr on 7/6/2012 ORDERING 7 Petition for Writ of Habeas Corpus filed by Gabriel Pippin is DENIED; CASE CLOSED. (Waggoner, D)

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United States District Court
Eastern District of California

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GABRIEL JOHN PIPPIN,

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CIV S-08-1540 TJH

Petitioner,
v.
T. FELKER, Warden, et al.,

Order

Respondents.

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In January, 2002, Petitioner ended the relationship with his girlfriend and she

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moved out with their new-born son. In June, Petitioner saw his former girlfriend at

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a baseball game with a new boyfriend. He drove to her grandmother’s house, waited

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for his former girlfriend to come outside with her boyfriend, and shot them both with

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a rifle, killing them. Petitioner was convicted of two counts of first degree murder,

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six counts of shooting at an inhabited dwelling, first degree residential burglary,

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corporal injury to a child’s parent, and disobeying a court order. Petitioner was

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sentenced to two consecutive life sentences, without the possibility of parole, for

Order – Page 1 of 5

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murder plus two consecutive sentences of twenty-five years to life, and twelve years

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in prison for the other counts.

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Petitioner seeks a writ of habeas corpus claiming: (1) He was denied a fair

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trial because the trial court failed to excuse a juror whose impartiality was

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compromised ; (2) The prosecutor made improper remarks at trial by misstating the

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law; and (3) The jury instructions were improper.

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The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d),

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provides that a federal court may grant habeas relief if a state court adjudication

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resulted in a decision that (1) was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court;

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or (2) was based on an unreasonable determination of the facts in light of the

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evidence presented in the state court proceeding.

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Petitioner contends that he was denied a fair trial because the trial court failed

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to excuse a juror whose impartiality was compromised. A state criminal defendant

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has a federal constitutional right to an impartial jury. Duncan v. Louisiana, 391 U.S.

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145, 149, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d 491, 496 (1968). However, due process

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does not require a trial court to question jurors every time evidence of juror bias

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comes to light. Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003). In

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deciding its course of action, the court must consider the content of the allegations,

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the seriousness of the alleged misconduct or bias, and the credibility of the source.

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Tracey, 341 F. 3d at 1044.

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Midway through defense counsel’s closing argument, the court received a note

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from Juror number 5 expressing confusion about the law as represented by the court

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and counsel. Petitioner moved to excuse the juror. That motion was denied, and both

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sides had an opportunity to address the juror’s concerns in their arguments.

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.......
Order – Page 2 of 5

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Petitioner argues that the note indicated that the juror reached a premature

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decision to convict him of several of the counts. Petitioner claims that the court had

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a duty to dismiss the juror or conduct a meaningful inquiry into his possible bias.

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However, Petitioner misinterprets the letter. Juror number 5 wrote “ I am not

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expressing any personal position herein, rather seeking guidance.” The juror then

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followed that introduction with several questions regarding the law relevant to one

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of the counts. The juror confidentially solicited help from the trial judge, expressed

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his understanding that he had a duty to remain impartial, and provided the letter at a

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time when both parties had an opportunity to adjust their closing argument to respond

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to the juror’s questions.

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The note does not reveal partiality or premature decision making. Thus, with

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out further evidence of bias, the letter alone did not trigger a duty of investigation.

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The court retains wide latitude in deciding whether further inquiry is necessary and

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whether the juror should be excused. In this case, it was sufficient to allow lawyers

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of both parties to address the concerns in their arguments. The trial court did not

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abuse its discretion by denying defendant’s request to excuse the juror or to

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investigate his possible bias.

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Petitioner contends that he was denied a fair trial because the prosecutor did

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not properly paraphrase the legal standard for heat of passion manslaughter.

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Prosecutorial misconduct rises to the level of a constitutional violation only when the

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misconduct “so infected the trial with unfairness as to make the resulting conviction

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a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464,

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2471, 91 L. Ed. 2d 144, 157 (1986). In assessing whether a statement by a

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prosecutor rendered a defendant’s trial fundamentally unfair, the reviewing court

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must view the prosecutor’s statements in the context in which they were made. Greer

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v. Miller, 483 U.S. 756, 765-66, 107 S. Ct. 3102, 3109, 97 L. Ed. 2d 618, 630 (1987).

Order – Page 3 of 5

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In paraphrasing the provocation necessary to find voluntary manslaughter

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rather than murder, the prosecutor did not specifically differentiate between the

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provocation to entice a reasonable person to act in the heat of passion with the

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reasonableness of defendant’s conduct in response to that provocation. Petitioner

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asserts that prosecutor misstated the law by not clarifying that the jury needs to assess

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heat of passion based on the level of provocation.

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However, when viewed in its entirety, the court sufficiently communicated to

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the jury the essence of the difference between murder and manslaughter. The court

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properly instructed the jury on provocation, heat of passion, and all the elements of

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manslaughter. Additionally, the court specifically told the jury that the counsel’s

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paraphrasing of the rules may deviate from the letter of the law. Thus, the court took

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the necessary steps to alleviate due process concerns, and it is not reasonably likely

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that jurors were misled. After taking into account the Court’s actions, the prosecutor’s

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statements during closing argument did not effect the trial with unfairness to the

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degree required by Darden. Darden, 477 U.S. at 181, 106 S. Ct. at 2471, 91 L. Ed.

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2d at 157.

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Petitioner, also, contends that the trial court’s instructions regarding counts of

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discharging a firearm at an inhabited dwelling counts, did not correctly embody

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California law and, thus, raised a constitutional issue. Generally, claims of error in

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state jury instructions are a matter of state law and invoke no constitutional question

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unless they amount to a deprivation of due process. Estelle v. McGuire, 502 U.S. 62,

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73, 112 S. Ct. 475, 483, 116 L. Ed. 2d 385, 399-400 (1991). To prevail, a habeas

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petitioner must show that error so infected the trial that the resulting conviction

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violated due process. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400,

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38 L. Ed. 2d 368, 373 (1973).

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Order – Page 4 of 5

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California Penal Code § 246 states that any person who maliciously and

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willfully discharges a firearm at an inhabited dwelling house is guilty of a felony.

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Petitioner claims that the jury should have been instructed that to find defendant

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guilty, he must have been aware of the occupants’ presence. Petitioner’s suggested

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addition to the instructions is a misinterpretation of the law. California Supreme

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Court held that a house is “inhabited” if there are permanent residents thereof, even

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if it is temporarily unoccupied. People v. Rodriguez, 42 Cal. 3d 1005, 1018, 232 Cal.

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Rptr. 132, 140 (1986). Since a defendant can be charged with a § 246 violation even

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if the house is empty, each shot constitutes a count and it is irrelevant whether he was

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aware that the residents are inside at the time of the shooting. Because awareness of

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presence is not an element of the crime, there was no instructional error. The trial

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court’s instructions properly embodied California law and, thus, do not present a

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recognizable federal question.

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It is Ordered that the petition for writ of habeas corpus be, and hereby is,
Denied.

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Date: July 6, 2012

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__________________________________

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_

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Terry J. Hatter, Jr.
Senior United States District Judge

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Order – Page 5 of 5