Johnson v. Soto
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/07/15 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSEPH TERRELL JOHNSON,
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No. 2:12-cv-2887 MCE DAD P
Petitioner,
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v.
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SOTO, Warden,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction
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entered against him on December 1, 2006 in the Sacramento County Superior Court on charges of
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murder occurring during the commission of an attempted robbery, five counts of robbery, and two
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counts of attempted robbery, with the jury also finding that petitioner personally used a firearm
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during the commission of his crimes. Petitioner seeks federal habeas relief on the following
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grounds: (1) the trial court‟s denial of his motions to suppress pre-trial identifications and in-
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court identifications denied him his right to due process; (2) the trial court‟s exclusion of third-
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party culpability evidence violated his rights to a fair trial, to present a complete defense, and to
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due process; (3) the trial court‟s refusal to allow the defense to elicit from a prosecution witness
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petitioner‟s explanation for admissions made to his girlfriend violated his rights to a fair trial,
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cross-examination of the witnesses against him, and due process; and (4) the cumulative effect of
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the trial court‟s evidentiary errors violated his federal constitutional rights. Upon careful
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consideration of the record and the applicable law, the undersigned will recommend that
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petitioner‟s application for habeas corpus relief be denied.
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I. Background
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In a published opinion affirming petitioner‟s judgment of conviction on appeal, the
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California Court of Appeal for the Third Appellate District provided the following factual
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summary:
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During a two-week period in 2005, defendants Joseph Johnson and
Jessica Nicole Holmes, along with Holmes‟s boyfriend, Corey
Schroeder, robbed or attempted to rob at least five gas stations in
the Sacramento area. Their mode of operation was virtually the
same for each robbery: Schroeder would case the station, Johnson
would rob the station attendant at gunpoint, and Holmes would
drive them away. On the trio‟s last attempted robbery, Johnson
shot and killed the station attendant, Prem Chetty.
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Separate juries convicted Johnson and Holmes of murder during the
commission of an attempted robbery, and multiple counts of second
degree robbery and attempted second degree robbery. (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17), 211, 664.) They also found
true gun-use enhancements and principal-armed enhancements as to
each count. (Pen. Code, §§ 12022, subd. (a)(1), 12022.53, subds.
(b), (d).) FN1
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FN1. The information also charged Schroeder, but his trial was
severed from defendants‟ trial.
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The trial court sentenced Johnson to a prison term of life without
the possibility of parole for the special circumstance murder, an
additional 25 years to life for the firearm enhancement attached to
the murder conviction, and an additional consecutive determinate
term of 34 years four months for the remaining convictions and
enhancements.
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The trial court sentenced Holmes also to a prison term of life
without the possibility of parole for the special circumstance
murder, an additional 25 years to life for the firearm enhancements
attached to the murder conviction, and an additional consecutive
term of seven years eight months for the remaining convictions and
enhancements.
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***
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FACTS
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June 25, 2005 Robbery at L & S Shell Gas Station, Madison
Avenue and Auburn Boulevard (Count Three—Johnson only)
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At about 11:20 a.m. on June 25, 2005, Johnson entered the
automotive repair store adjacent to the L & S Shell gas station.
Timothy Meton was working as the cashier. After the other
customers left, Johnson pulled a gun from his waistband and
demanded Meton give him “all the money.”
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As Meton took the money out of the cash register, Johnson
“gestured” with the gun and told him to “[h]urry up.” Meton gave
Johnson all of the cash in the tray. Johnson told Meton to give him
the money underneath the tray. Meton showed Johnson there was
no money underneath the tray. Johnson stuffed the money into the
front pocket of his sweatshirt and ran out the door toward a
McDonald‟s restaurant located across the street. Meton estimated
he gave Johnson about $700.
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Meton participated in two lineups. The first, on July 10, 2005, was
a photographic lineup that included Johnson. Meton did not
identify anyone. The second, on July 15, 2005, was a live lineup.
Meton requested the individuals each say “hurry up” and
“underneath too.”
He identified Johnson after hearing the
individuals speak. Johnson was the only person who was in both
the photographic lineup and the live lineup.
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Meton also identified Johnson in court as the robber.
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Holmes‟s jury heard Holmes‟s July 11, 2005 interview with
Sacramento County Sheriff‟s detectives. Regarding this robbery,
Holmes stated Johnson had called her and asked her to pick him up.
She, Schroeder, and another girl did so. Johnson directed Holmes
to park at the McDonald‟s, and he went across the street to the Shell
station. After he came back from the Shell station, he said, “Let's
leave.” After they drove out of the parking lot, Johnson told
Holmes he had robbed the station. Holmes knew Johnson had a
gun with him. She drove Johnson to another location, and he gave
her $20 for the ride.
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June 28, 2005 Robbery at Arco Gas Station, Walerga Road and
Hillsdale Boulevard (Count Four—Johnson and Holmes)
On June 28, 2005, Kuljit Rai was working alone at his Arco gas
station on the corner of Walerga Road and Hillsdale Boulevard in
Sacramento County. At about 2:00 p.m., Johnson entered the store
and robbed Rai at gunpoint of about $75. After Johnson ran out,
Rai followed him and saw Johnson get into the back passenger seat
of a small, white, four-door car. Rai could not see anyone else in
the car.
The store‟s surveillance tape showed a White male in a white tank
top enter the store. The tape also shows Johnson entering the store.
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On July 15, 2009, Rai identified Johnson at a live lineup as the
robber. Rai also identified Johnson in court as the robber.
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During closing arguments, Johnson conceded his guilt to this crime.
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June 28, 2005 Attempted Robbery of Shell Gas Station, Auburn
Boulevard and Antelope Road (Count Five—Johnson and
Holmes)
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About 30 minutes after the Arco robbery, Johnson attempted to rob
a Shell gas station at the corner of Auburn Boulevard and Antelope
Road in Citrus Heights. Ewa Her was working at that station when,
at about 2:30 p.m., he heard a voice behind him coming from the
cash register counter. He turned around and saw Johnson standing
at the counter and pointing a gun at him. Johnson repeatedly
demanded Her to give him the money. When Her did not, Johnson
put his hand on top of the gun and pulled back the slide. Her
“freaked out” and ran to the back room. He never gave Johnson
any money.
About a minute before Johnson came into the store, a White man in
a white tank top came into the store and purchased a soda and some
chips. Her did not attend a live lineup and he did not identify
Johnson at trial.
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There were two minors in the store at the time of the robbery. One
of the minors saw Johnson put a glove on his right hand and
possibly his left, pull a gun out, and heard him tell the clerk to give
him money. The minors both identified Johnson at a live lineup
and at trial as the robber.
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Holmes‟s jury heard Holmes‟s statement that she had driven
Johnson to this gas station, and she drove away after Johnson came
back from the store.
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During closing argument, Johnson conceded his guilt to this count.
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June 30, 2005 Robbery of Arco/Valero Gas Station at San Juan
Avenue and Winding Way (Count Nine—Evidence Presented to
Holmes’s Jury Only)
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Thomas Claussen was working alone the evening of June 30, 2005,
at the Arco/Valero gas station at San Juan Avenue and Winding
Way.FN2 A tall, Black male entered the store. The man was slim,
about 18 years old, wearing a blue Kobe Bryant jersey, a black
baseball hat, and a glove on his hand. The man aimed his gun at
Claussen and demanded money. Claussen gave the man all of the
money in the cash drawer, about $130. After the robber left,
Claussen went outside, but he could not see the man. Claussen saw
a maroon pickup truck leave the area, but he did not know if the
truck was related to the robbery.
FN2. The Attorney General refers to the station both as an Arco
station and as a Valero station. Claussen testified he worked for
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Valero but the station was branded as an Arco station. To avoid
confusion, we will refer to it as an Arco/Valero station.
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Claussen attended a live lineup that included Johnson. However,
Claussen was unable to identify anyone as the robber of his store.
On the sheriff‟s department lineup identification form, Claussen
wrote that the robber was darker skinned than any of the lineup
participants.
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Holmes told detectives she drove Johnson to the Arco/Valero
station. Johnson told her where to park. Johnson went into a
nearby liquor store and then went into the Arco/Valero station.
Johnson said nothing about a robbery when he came back to the car.
Holmes did not know Johnson had robbed the station until a couple
of days later.
Deputies later seized a Kobe Bryant jersey from the home where
Johnson had been living. Johnson appears to be wearing the same
jersey in a DMV photo.
As to Holmes, the court declared a mistrial on this count after her
jury announced it was deadlocked. The prosecutor subsequently
moved to dismiss the charge, and the court granted the motion.
June 30, 2005 Robbery of Chevron Gas Station at Dewey Drive
and Madison Avenue (Count Six—Johnson and Holmes)
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Also on June 30, 2005, at about 8:20 p.m., Johnson entered a
Chevron gas station on the corner of Dewey Drive and Madison
Avenue, walked to the counter, pointed a gun at the employee,
Jesus Fernandez, and demanded all the money. Fernandez put all of
the money from the cash register, between $250 and $300, into a
bag and gave it to Johnson. Johnson left the store and went behind
a building.
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On July 21, 2005, Detective Biondi showed Fernandez surveillance
images from the robbery, and then showed him a photographic
lineup. Fernandez identified himself and the robber in the
surveillance images.
Then, when viewing the photographs,
Fernandez first pointed to Johnson and another person, but then he
identified Johnson as the robber. Fernandez did not attend a live
lineup. He identified Johnson in court as the robber.
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As to Holmes, the court declared a mistrial on this count after her
jury announced it was deadlocked. The court later granted the
prosecution‟s motion to dismiss the charge against Holmes.
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July 5, 2005 Uncharged Robbery in Roseville
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Shortly before 7:00 p.m., July 5, 2005, Johnson walked into a
Valero gas station at Sunrise Avenue and Coloma Road in
Roseville. He picked up a soda, walked to the counter, pointed a
gun at the employee, Rui Mar, and demanded she give him money
from the cash register. Mar told Johnson she could not open the
register unless he purchased something. Johnson continued
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pointing the gun at Mar and threatening her. She tried to hide
behind an ice machine next to the register. Johnson fired two shots
and left.
Officers found two bullet holes behind the counter area. One .380–
caliber bullet was found inside cigarette packs stored behind the
register.
Two .380–caliber shell casings were also found.
Surveillance video taken from the store showed a man in a white
tank top inside the store before the robber entered the store.
On July 8, 2005, at the request of a Roseville police sergeant, Mar
viewed a media release and still photos posted on the Sacramento
County Sheriff's Department Web site regarding a July 7 murder in
Citrus Heights. Mar informed the officer the person in the still
photos was the same person who had attempted to rob her.
On July 15, 2005, Mar attended a live lineup in Sacramento
County. She quickly identified Johnson from the lineup as the
robber. Later, Mar identified Johnson in court as the robber.
Holmes‟s jury heard Holmes‟s statement to detectives that she
drove Johnson to the Valero station in Roseville. Schroeder went
into the store to buy Holmes a soda. Then Johnson went inside and
came back with a soda. Holmes had the radio on and did not hear
any gunshots. Johnson and Schroeder talked about Johnson
shooting at the clerk. Johnson said he had “shot right next to her.”
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Holmes denied she had known Johnson was going to commit a
robbery. She claimed she drove and parked wherever Johnson told
her because “he needed [her] to take him.” She thought she was
taking Johnson to buy marijuana.
July 5, 2005 Robbery of Chevron Gas Station at Walnut
Avenue and Marconi Avenue (Counts Seven and Eight—
Johnson and Holmes)
About 30 minutes after the uncharged Roseville robbery, Johnson
walked into a Chevron gas station store at Walnut Avenue and
Marconi Avenue in Sacramento County. He picked up a container
of milk and a bag of chips, walked to the counter, and asked the
employee, Mathew Johnson, for a cigar. Mathew turned around to
get the cigar, and when he turned back around, Johnson was
pointing a gun at him. Johnson threatened to shoot unless Mathew
gave him the money from the register. As Mathew pulled the tray
out of the register, another station employee, Lidia Fretwell, entered
the store from the outside. Mathew told Fretwell they were being
robbed. He tried to give Johnson the tray, but Johnson refused to
touch it. He ordered Mathew to remove the money and give it to
him. Mathew gave him about $170. Johnson took the money and
left.
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Mathew followed Johnson outside and saw Johnson get into a white
compact car, possibly a Ford Escort, behind the station. He could
not see if anyone else was in the car. At trial, Mathew testified that
Corey Schroeder, a man he knew from his apartment complex, had
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come into the store about one hour before the robbery and had
bought a pack of cigarettes.
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A customer, Corrine Kelly, entered the store as a Black man exited
the store holding a Nestle Quik. Kelly saw the man walk to an
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adjacent parking lot and get into a white or beige Ford Escort
occupied with two other people.
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Mathew identified Schroeder and Johnson in separate live lineups;
Schroeder as the man who came into the store an hour before the
robbery, and Johnson as the robber. Mathew also identified
Johnson as the robber at trial.
Fretwell identified Johnson as the robber from a photographic
lineup. She also identified Johnson at trial as the robber after she
looked at the photo she had previously identified. She did not
attend a live lineup.
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Holmes‟s jury heard Holmes‟s statement to detectives that she had
driven Johnson to the Chevron station. He told her to park behind
the gas station. Schroeder went into the store first to buy fireworks,
she thought. When Schroeder came back, Johnson asked him how
many people were working inside the store. Johnson told Holmes
he had to get something and got out of the car. Holmes drove away
after Johnson came back. Later, Johnson told her he had robbed the
store.
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July 5, 2005 Purchase of Bullets at Big 5
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At about 8:00 p.m. on July 5, 2005, the evening of the Chevron gas
station robbery and the uncharged Roseville robbery, Johnson,
Holmes, Schroeder, and an unidentified Black male purchased
ammunition at a Big 5 Sporting Goods store on Arden Way near
Watt Avenue. They bought a box of Remington .380 bullets with
cash. Video from the store‟s surveillance system shows the four
people all standing by the ammunition counter at one point.
Schroeder is wearing a white tank top.
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Holmes‟s jury also heard Holmes‟s statement to detectives that she
had driven Johnson to Big 5 to buy bullets. She denied knowing
what Johnson intended to do with them. Holmes‟s sister‟s exboyfriend went with them to buy the bullets.
July 7, 2005 Murder and Attempted Robbery at Shell Gas
Station at Greenback Lane and Auburn Boulevard (Counts
One and Two—Johnson and Holmes)
On July 7, 2005, Prem Chetty was working at a Shell station at
Greenback Lane and Auburn Boulevard in Citrus Heights. He was
killed that evening in an attempted robbery.
Surveillance videotape from the station recorded a Black man
wearing a gray sweatshirt and a black cap take something out of
one of the store‟s coolers. He walked up to the store‟s counter
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where Chetty was waiting. The man picked up another item to buy,
and then handed Chetty some money. When Chetty opened the
cash register drawer, the man pulled a gun on Chetty and demanded
the money. When Chetty did not give the robber any money, the
man shot Chetty more than once and then left the store. Chetty died
of gunshot wounds to the neck and chest.
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The video also appears to portray Schroeder wearing a red shirt
inside the store prior to the robbery.
Three witnesses who were in the vicinity of the Shell station at the
time of the murder testified. Kimberly Irvine was at the Chevron
station across the street when she heard a couple of gunshots. She
looked toward the Shell station and saw a man wearing dark
clothing run out of the store and toward the fence and bushes that
divided the Shell station from a Jack–in–the–Box restaurant. The
man ran out of view and she did not see where he went.
Dee Scott–Chee and Carol Webber were in a car stopped at the
traffic light at Greenback Lane and Auburn Boulevard when Chee
heard two gunshots. She saw a person run quickly from the Shell
station into the bushes dividing the station and the Jack–in–the–
Box.
Webber stated she saw the face of the man leaving the station. At a
photo lineup, Webber selected the photograph of Johnson‟s cousin,
Thaddeus Taylor, as the person who looked “the closest in the
eyes.” Later, at a subsequent photo lineup, Webber again did not
select Johnson as the man she saw.
Randy Cockrell was sitting inside his car with his girlfriend at the
Gold‟s Gym parking lot near Greenback Lane and Auburn
Boulevard when he heard two gunshots. He looked in his rearview
mirror and saw a White male run from the Shell station toward a
white, four-door sedan that was parked behind the Jack–in–the–
Box. The sedan drove onto Greenback Lane toward the freeway.
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Deputies recovered three spent shell casings and two deformed
copper-jacketed bullets from the scene. The casings were each
marked with a head stamp of “R–P .380 auto.”
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Holmes‟s jury heard her statement to detectives in which she
admitted driving Johnson to the Shell station. She drove a white,
1994 Ford Escort, which was registered in her mother‟s name. She
had picked Johnson up at the home of his cousin, Thaddeus Taylor,
with whom he had been living. Johnson told Holmes he wanted to
“get something,” so Holmes stopped at the Shell station. Johnson
told her to park by the fence between the station and the Jack–in–
the–Box. Johnson got out of the car with Schroeder. Schroeder
went inside the store to buy cigarettes. He returned to the car and
told Johnson and Holmes he could not buy them because the store
clerk had asked him for identification.
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Holmes stated Johnson either went through a hole in the fence or
jumped the fence to get to the station. Holmes heard three
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gunshots. Johnson came back to the car and got in the backseat.
After they drove away, Johnson told Holmes and Schroeder that he
had “tried to rob” the clerk and had shot him. Neither Holmes nor
Schroeder believed him. Holmes told the detectives she did not
know about the murder until the day of her interview.
Johnson had two girlfriends, Chelsea Ciscoe and Natalie Brand,
with whom he spent time after the murder and prior to his arrest.
He admitted the murder to both women. Chelsea told detectives
that Johnson told her the clerk at the Shell station had reached for
Johnson‟s gun and Johnson “freaked out.” Johnson said the clerk
was going for the gun and Johnson thought he might be shot.
Johnson told Chelsea he “blinked” and the whole incident was over.
Natalie told detectives that Johnson had admitted he killed the
clerk. Johnson told Natalie that he went to rob the clerk, but he did
not mean to shoot and kill him. The clerk had grabbed for the gun,
Johnson had been scared, and he fired the gun. Johnson told
Natalie that he had gone to do the robbery because his uncle with
whom he had been living had kicked him out of the house. Natalie
recanted her statements at trial.
Detectives searched the bedroom Johnson shared with his cousin,
Thaddeus Taylor. Thaddeus directed detectives to a speaker box.
Inside, detectives found a Beretta model 84, nine millimeter
handgun.FN3 There was a live round inside the chamber and nine
live rounds in the magazine. Detectives also found a box of
Remington .380–caliber ammunition from Big 5. Inside the box
were 44 .380–caliber round-nose bullets and three .380–caliber
hollow-point bullets. The box had empty spaces for three bullets.
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FN3. The detective who retrieved the handgun testified that the gun
fired both .380 caliber and nine millimeter rounds.
At the sheriff‟s station, Thaddeus‟s father, Fred Taylor, viewed still
photographs from the Shell station surveillance videotape and also
the surveillance video. He identified Johnson as the person
depicted in the surveillance photos.
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Thaddeus told detectives the person depicted in the still photos
resembled Johnson, and Johnson had a hat and sweatshirt like the
person in the video wore. Thaddeus began to cry when he saw the
surveillance video. He told the detectives the person in the video
looked like Johnson, and he was pretty sure it was Johnson.
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Thaddeus testified that Johnson first showed him a gun after
Johnson returned from a trip to Los Angeles. Thaddeus saw the
gun maybe one or two more times. The gun was kept in the
bedroom in a speaker box connected to the computer. Thaddeus
had never fired the gun.
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Immediately prior to his arrest, Johnson called his Uncle Fred. Fred
encouraged Johnson to turn himself in. Johnson told Fred that he
had “shot someone Thursday night.” Johnson then surrendered
himself to authorities.
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Johnson gave a statement to detectives in which he admitted
shooting Chetty, shooting at Rui Mar in the uncharged Roseville
robbery, and committing the other robberies, including the robbery
at the Valero/Arco station against Thomas Claussen. The trial court
suppressed Johnson‟s confession on Miranda grounds.
A forensic specialist determined the two .380 caliber casings and
one .380 caliber bullet recovered from the uncharged Roseville
robbery scene, and the .380 caliber casings and two .380 caliber
bullets recovered from the Shell station murder scene, were all
discharged from the Beretta nine millimeter handgun found in
Thaddeus‟s and Johnson's bedroom.
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We provide additional facts below as needed.
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People v. Johnson, 183 Cal.App.4th 253, 261-270 (2010).
On April 26, 2010, through appointed counsel, petitioner filed a petition for review in the
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California Supreme Court. On July 14, 2010, the California Supreme Court denied review. On
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June 29, 2011, petitioner filed a pro se petition for a writ of habeas corpus in the Sacramento
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County Superior Court, which was denied on August 23, 2011. On September 28, 2011,
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petitioner filed a pro se petition for a writ of habeas corpus in the California Court of Appeal.
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That petition was summarily denied on October 6, 2011. Finally, on June 21, 2012, petitioner
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filed a pro se petition for writ of habeas corpus in the California Supreme Court. That petition
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was denied on October 10, 2012, with the California Supreme Court citing the decisions in People
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v. Duvall, 9 Cal.4th 464 (1995) and Ex parte Swain, 34 Cal.2d 300 (1949). (Resp‟t‟s Lodged
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Docs., lodged April 11, 2013, Nos. 5-14.)
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Petitioner filed his federal habeas petition with this court on or about November 28, 2012.
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On December 10, 2012, the court directed respondent to file a response to the petition. Before
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respondent filed a response in this case, petitioner filed a motion for appointment of counsel. On
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January 14, 2013, the court appointed the Office of the Federal Defender for the Eastern District
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of California to represent petitioner. By order dated January 30, 2013, petitioner‟s current habeas
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counsel substituted in as appointed counsel of record for petitioner in place of the Office of the
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Federal Defender.
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On January 26, 2014, after respondent‟s motion to dismiss the pending petition as time-
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barred was denied, petitioner filed the amended petition for a writ of habeas corpus upon which
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this action now proceeds. Respondent filed an answer on September 8, 2014, and petitioner filed
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a traverse on November 5, 2014.
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II. Standards of Review Applicable to Habeas Corpus Claims
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An application for a writ of habeas corpus by a person in custody under a judgment of a
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state court can be granted only for violations of the Constitution or laws of the United States. 28
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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
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application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502
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U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
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
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(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.
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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
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holdings of the United States Supreme Court at the time of the last reasoned state court decision.
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Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859
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(9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent
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“may be persuasive in determining what law is clearly established and whether a state court
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applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561,
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567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general
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principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has
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not announced.” Marshall v. Rodgers, ___ U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013) (citing
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Parker v. Matthews, ___ U.S. ___, ___, 132 S. Ct. 2148, 2155 (2012)). Nor may it be used to
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“determine whether a particular rule of law is so widely accepted among the Federal Circuits that
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it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts
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of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly
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established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
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A state court decision is “contrary to” clearly established federal law if it applies a rule
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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
8
writ if the state court identifies the correct governing legal principle from the Supreme Court‟s
9
decisions, but unreasonably applies that principle to the facts of the prisoner‟s case.1 Lockyer v.
10
Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
11
(9th Cir. 2004). A federal habeas court “may not issue the writ simply because that court
12
concludes in its independent judgment that the relevant state-court decision applied clearly
13
established federal law erroneously or incorrectly. Rather, that application must also be
14
unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
15
(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
16
review of the legal question, is left with a „firm conviction‟ that the state court was „erroneous.‟”)
17
“A state court‟s determination that a claim lacks merit precludes federal habeas relief so long as
18
„fairminded jurists could disagree‟ on the correctness of the state court‟s decision.” Harrington v.
19
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
20
Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
21
must show that the state court‟s ruling on the claim being presented in federal court was so
22
lacking in justification that there was an error well understood and comprehended in existing law
23
beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
If the state court‟s decision does not meet the criteria set forth in § 2254(d), a reviewing
24
25
court must conduct a de novo review of a habeas petitioner‟s claims. Delgadillo v. Woodford,
26
1
27
28
Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
12
1
527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
2
(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
3
2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
4
de novo the constitutional issues raised.”).
5
The court looks to the last reasoned state court decision as the basis for the state court
6
judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
7
If the last reasoned state court decision adopts or substantially incorporates the reasoning from a
8
previous state court decision, this court may consider both decisions to ascertain the reasoning of
9
the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a
10
federal claim has been presented to a state court and the state court has denied relief, it may be
11
presumed that the state court adjudicated the claim on the merits in the absence of any indication
12
or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption
13
may be overcome by a showing “there is reason to think some other explanation for the state
14
court‟s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
15
(1991)). Similarly, when a state court decision on a petitioner‟s claims rejects some claims but
16
does not expressly address a federal claim, a federal habeas court must presume, subject to
17
rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,
18
___, 133 S. Ct. 1088, 1091 (2013).
19
Where the state court reaches a decision on the merits but provides no reasoning to
20
support its conclusion, a federal habeas court independently reviews the record to determine
21
whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
22
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
23
review of the constitutional issue, but rather, the only method by which we can determine whether
24
a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
25
reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
26
reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
27
28
A summary denial is presumed to be a denial on the merits of the petitioner‟s claims.
Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
13
1
just what the state court did when it issued a summary denial, the federal court must review the
2
state court record to determine whether there was any “reasonable basis for the state court to deny
3
relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could
4
have supported, the state court‟s decision; and then it must ask whether it is possible fairminded
5
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
6
decision of [the Supreme] Court.” 562 U.S. at 102. The petitioner bears “the burden to
7
demonstrate that „there was no reasonable basis for the state court to deny relief.‟” Walker v.
8
Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner‟s
9
10
claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
11
habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
12
F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
13
III. Petitioner’s Claims
14
A. Suppression of Pre-trial and In-court Identifications
15
On September 8, 2006, the trial court ruled that petitioner‟s statements made in response
16
to police interrogation were not admissible in the prosecution‟s case-in-chief at petitioner‟s trial
17
because interrogating detectives had failed to give petitioner warnings required under Miranda v.
18
Arizona, 384 U.S. 436 (1966). (Reporter‟s Transcript on Appeal (RT) at 78-79.) On that same
19
date, the trial court denied petitioner‟s motion to exclude from evidence pre-trial lineup
20
identifications and in-court identifications of petitioner by various witnesses. (Id. at 108.) In
21
petitioner‟s first ground for federal habeas relief, he claims that the trial court violated his right to
22
due process in denying his motion to exclude the pre-trial and in-court identifications from
23
admission at his trial. (ECF No. 32 at 20.) 2
24
1. State Court Decision
25
26
27
28
In considering this claim on direct appeal, the state appellate court summarized
petitioner‟s arguments and the underlying facts:
2
Page number citations such as this one are to the page numbers reflected on the court‟s
CM/ECF system and not to page numbers assigned by the parties.
14
1
/////
2
Suggestiveness of Identification Procedures
3
7
Johnson claims the court erred when it refused to suppress (1) the
pretrial identifications made at live lineups by Timothy Meton, Rui
Mar, Mathew Johnson, and Lidia Fretwell; (2) the pretrial
identification made from a photo lineup by Jesus Fernandez; and
(3) the in-court identifications made by these same witnesses, and,
in particular, Mathew Johnson. Johnson asserts the procedures used
to obtain the pretrial identifications were unduly suggestive, and
that the procedures wrongfully tainted the in-court identifications.
We disagree.
8
A. Live lineups
9
1. Background information
4
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Meton, Mar, Mathew, and Fretwell identified Johnson at live
lineups. In each lineup, the suspects were presented to the
witnesses simultaneously rather than sequentially. Citing to
psychological journals, Johnson claims group lineups produce less
reliable identifications and thus identifications at such lineups
should be suppressed.
Johnson also faults the live lineups because he was thinner than the
other suspects and because he was the only suspect who had a braid
protruding from one side of his hat.
Johnson also claims that police suggestively tainted the lineup
identifications by Meton and Mar by showing the witnesses photos
before the live lineups. Police showed Meton a sequential photo
lineup that included Johnson‟s photo, but Meton was unable to
identify a suspect. Five days later, Meton viewed the live lineup.
Johnson was the only person in the lineup whose photo had been
included in the photo lineup. Meton identified Johnson as the
suspect, but only after he asked the suspects to say “hurry up” and
“underneath, too,” two phrases the robber had used at the time of
the robbery.
As for Mar, she was asked by a Roseville police sergeant to view
still photos taken from the surveillance video of the Chetty murder
posted on the Sacramento County Sheriff's Department Web site
because the facts surrounding the two incidents were similar. Mar
viewed the photos, recognized the suspect in them as the suspect
who attempted to rob her, and reported her identification to the
Roseville Police Department.
One week later, Mar attended a live lineup in Sacramento County,
and she quickly identified Johnson as the person who had robbed
her. Johnson claims the use of photos prior to the live lineups
improperly tainted Meton‟s and Mar‟s pretrial identification of him.
Johnson, 183 Cal.App.4th at 270-71.
15
1
2
3
/////
On direct appeal the state appellate court rejected petitioner‟s challenges to the pretrial
and in-court witness identifications, reasoning as follows:
4
2. Analysis
5
We review de novo a trial court's ruling that a pretrial identification
procedure was not unduly suggestive. (People v. Kennedy (2005)
36 Cal.4th 595, 609, 31 Cal. Rptr.3d 160, 115 P.3d 472.)
6
7
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9
10
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“In order to determine whether the admission of identification
evidence violates a defendant‟s right to due process of law, we
consider (1) whether the identification procedure was unduly
suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of
the circumstances, taking into account such factors as the
opportunity of the witness to view the suspect at the time of the
offense, the witness‟s degree of attention at the time of the offense,
the accuracy of his or her prior description of the suspect, the level
of certainty demonstrated at the time of the identification, and the
lapse of time between the offense and the identification.
[Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989,
108 Cal. Rptr.2d 291, 25 P.3d 519.)
“[D]efendant has the burden of showing that the identification
procedure was unduly suggestive and unfair „as a demonstrable
reality, not just speculation.‟ [Citation.] A due process violation
occurs only if the identification procedure is „so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.‟ [Citation.]”
“We have held that an identification procedure is considered
suggestive if it „caused defendant to “stand out” from the others in a
way that would suggest the witness should select him.‟ [Citation.]”
(People v. Cook (2007) 40 Cal.4th 1334, 1355, 58 Cal. Rptr.3d 340,
157 P.3d 950.)
If the defendant fails to show that the identification procedures
were unduly suggestive, we need not address any arguments
regarding the identifications‟ reliability under the totality of the
circumstances. (People v. Cook, supra, 40 Cal.4th at p. 1355, 58
Cal. Rptr.3d 340, 157 P.3d 950; People v. Cunningham, supra, 25
Cal.4th at p. 989, 108 Cal. Rptr.2d 291, 25 P.3d 519.)
Johnson has not shown that the live lineup procedures used here
were unduly suggestive. First, he provides no legal authority to
support his claim that group lineups are inherently impermissibly
suggestive, and we are aware of none. Group lineups have long
been an accepted identification procedure, and nothing in this case
indicates we should question that format.
Second, the lineup itself was not unduly suggestive. Nothing in the
lineup caused Johnson to “stand out” from the others in a way that
16
1
2
3
4
would suggest the witness should select him. The lineup consisted
of five Black men. Each appears to be of similar age, complexion,
and body type. Each wore a blue cap and a gray sweatshirt over
orange jail clothing and a t-shirt. At least two of the five, defendant
and one other, had braids or dreadlocks in their hair, while two
others appear to have similar type of hair. Viewed with the other
suspects, defendant does not stand out in a way that would indicate
to the witnesses they should have selected him.
5
6
7
8
9
10
11
12
Third, the use of photographs before Meton‟s and Mar‟s lineups
was not impermissibly suggestive. California and federal courts
have rejected Johnson‟s argument, made against Meton‟s
identification, that identification procedures are impermissibly
suggestive if the defendant is the only person appearing in both a
display of photographs and a subsequent lineup. “[T]he fact that
the defendant alone appeared in both a photo lineup and a
subsequent live lineup does not per se violate due process.”
(People v. Cook, supra, 40 Cal.4th at p. 1355, 58 Cal. Rptr.3d 340,
157 P.3d 950; see also People v. Wimberly (1992) 5 Cal. App.4th
773, 789, 7 Cal. Rptr.2d 152; United States v. Davenport (9th
Cir.1985) 753 F.2d 1460, 1463.)
17
Regarding Mar‟s identification, Johnson has not submitted copies
of the photos Mar viewed on the sheriff's Web site. Thus, we
cannot determine what prejudicial effect, if any, those photos could
have had on Mar‟s subsequent identification of Johnson in the live
lineup. Although the photos were made from the surveillance
video, we do not know what exactly they depicted. We certainly
cannot say the procedure was unnecessary. A police sergeant from
a different jurisdiction asked Mar to view the photos based on the
similarity in the crimes and in order to solve the crime against Mar.
Under these circumstances, Johnson fails to demonstrate Mar‟s
identification of him occurred under unduly suggestive procedures.
18
B. Fernandez photo lineup identification
19
Johnson faults the procedure the sheriffs used in obtaining Jesus
Fernandez‟s pretrial identification. Prior to showing Fernandez a
photo lineup, a detective showed him the surveillance video from
his own robbery. After viewing the video and the photo lineup,
Fernandez first identified two persons who could have been the
robber, and then he identified Johnson as the robber.
13
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25
26
27
28
Johnson acknowledges this type of procedure was approved in
People v. Ingle (1986) 178 Cal.App.3d 505, 512–514, 223 Cal.
Rptr. 723, but he nonetheless claims the procedure here tainted
Fernandez‟s identification of him. It did not. “[U]nlike the
recollections and descriptions of a human witness, the recorded
memory of the video surveillance camera has little serious potential
to mislead. Indeed, its opposite potential to correct and enhance the
reliability of an eyewitness identification in cases like the present
would appear greater than its potential to cause an incorrect result.
Accordingly, we find nothing inherent in the procedure with which
we deal in this case that can be said to be unnecessarily suggestive
and conducive to irreparable mistaken identification.” (Id. at p.
17
1
513, 223 Cal. Rptr. 723.)
2
C. In-court identifications, especially by Mathew Johnson
3
Johnson argues the in-court identifications by the witnesses should
have been suppressed due to their pretrial identification procedures.
Having determined the pretrial procedures were not unduly
suggestive, we agree the trial court correctly refused to suppress the
witnesses' in-court identifications.
4
5
6
Johnson particularly attacks Mathew Johnson‟s in-court
identification. Mathew, who previously identified Johnson at a live
lineup, did not bring his glasses to court, so he was allowed to leave
the witness stand and approach counsel table to make an
identification of Johnson.
7
8
9
Later, defense counsel moved for a mistrial, claiming Mathew‟s
identification was a suggestive identification procedure. The trial
court disagreed with the argument and denied the motion. It
explained: “I did this in the context of a very clear and unequivocal
identification at the lineup which I found to be fair, and given the
circumstances that Mr. Johnson is the only black male seated at the
counsel table, the difference between this witness sitting at the
witness stand with glasses on and looking at the counsel table to
identify the black man there as being the robber or not being the
robber is not distinguishable from being walked up to the counsel
table and looking at the same person more closely.”
10
11
12
13
14
15
As the trial court explained, its action in allowing Mathew to view
Johnson at the counsel table did not cause Johnson to stand out any
more than did the fact that defendant was the only Black man
sitting at the counsel table. Someone could have given Mathew a
pair of glasses, and the procedure would have been no different
substantively. The court‟s action was not unduly suggestive.
16
17
18
Johnson faults the procedure because on cross-examination,
Mathew stated Johnson had a tattoo on the left side of his neck.
Mathew had never told anyone that fact before. Johnson claims this
statement could have resulted only from the identification
procedure.
However, on further cross-examination, Mathew
explained he recalled seeing the tattoo at the time of the robbery but
he likely did not mention it to police because he was “stunned” over
having been in a robbery. The matter thus went to the weight of
Mathew's identification, not to its admissibility.
19
20
21
22
23
In sum, the identification procedures used in this case were not
unduly suggestive.
24
25
26
27
28
Id. at 271-74.
2. Petitioner’s Arguments
As he did in state court, petitioner challenges the identification procedures specific to each
individual witness who testified at trial, as well as the cumulative effect of police procedures
18
1
allegedly designed to result in petitioner‟s identification as the robber. With respect to witness
2
Timothy Meton, petitioner notes the following: (1) Mr. Meton did not provide any details of the
3
robber‟s face in his initial description of the individual to police but was able to recall details
4
about the robber‟s gun and clothing, indicating that he did not pay close attention to the robber‟s
5
face; (2) the robber was in the store for only about 30 seconds; (3) prior to his identification of
6
petitioner as the robber, Mr. Meton saw a surveillance photo of murder victim Chetty‟s killer in
7
the Sacramento Bee; (4) prior to the live lineup Meton was shown a photographic lineup that
8
included petitioner‟s photo but he was still unable to identify anyone as the robber; and (5) “the
9
only person present (at the live lineup) who was also in the photo lineup was Petitioner.” (ECF
10
No. 32 at 23, 24; ECF No. 45 at 11. See also Clerk‟s Transcript on Appeal (CT) at 446; ECF 32-
11
1.) Petitioner argues that these factors cast doubt on the reliability of Meton‟s identification of
12
petitioner as the robber. He also contends that “law enforcement gave Meton a clue that the
13
person he was supposed to identify was the only person whose photograph he had seen.” (ECF
14
No. 45 at 11.) Petitioner asserts that “clearly the live identification was influenced by the prior
15
photographic lineup.” (ECF No. 32 at 23.)
16
Petitioner also challenges the identification of the robber provided by Rui Mar. He claims
17
her identification was unreliable because she mainly described the robber‟s clothing and weapon
18
when speaking to the police after the robbery, but did not provide details about the robber‟s facial
19
features. (ECF No. 32 at 24; CT at 447.) He argues that Mar‟s identification was not based on
20
her independent recollection of the robbery, but on her memory of the suspect depicted in the
21
surveillance photos from the Shell station robbery and murder, which she had been shown prior to
22
identifying petitioner as the robber at the live lineup. (ECF No. 32 at 24; ECF No. 45 at 11.)
23
With regard to Mathew Johnson, petitioner argues that, during the robbery, Johnson
24
“appeared to be focused on the gun, as he was able to describe it as dark, dirty, partly corroded
25
and having an orange stripe on the front.” (ECF No. 32 at 24.) He further argues that before
26
viewing petitioner at close range in the courtroom, Johnson‟s descriptions of the robber had been
27
only “generic.” (Id. at 25.) After encountering petitioner in the courtroom, however, Johnson‟s
28
description of the robber became much more specific. (Id.) Petitioner complains that Johnson
19
1
“was allowed to leave the witness stand and walk right up to the defendant – the only African
2
American at the defense table – and identify the defendant as his assailant.” (ECF No. 45 at 13.)
3
He notes that Johnson had never mentioned that the robber had a tattoo before he observed
4
petitioner at close range in the courtroom. (Id.) Petitioner also notes that Johnson did not identify
5
petitioner as the robber until ten days after the robbery. (ECF No. 32 at 25.)
6
Petitioner claims that Jesus Fernandez‟ identification at the photo lineup was unduly
7
influenced by the surveillance photo of his own robbery, which police presented to him
8
immediately prior to the photo lineup. (ECF No. 32 at 23, 24; ECF No. 45 at 11.) He notes that
9
Fernandez had difficulty choosing a suspect even under these circumstances. (Id.) He argues that
10
Fernandez‟s identification of petitioner as the robber „was enhanced not by his own recollection
11
of his assailant but by his view of a photograph.” (ECF No. 45 at 11.)
12
Finally, petitioner notes that Lidia Fretwell, who identified petitioner as the robber from a
13
photo lineup, initially gave police a detailed description only of the robber‟s clothing but not his
14
facial features. (ECF No. 32 at 25.) He also notes that Fretwell viewed the photo lineup more
15
than two weeks after the robbery. (Id.) Petitioner argues that Fretwell‟s identification, and that of
16
Mathew Johnson, were suspect because of their “limited opportunity to view the gunman and the
17
length of time that had transpired from the robbery to the identification procedures.” (ECF No.
18
45 at 12.)
19
Petitioner argues that all of the witness identifications of himself as the robber were
20
tainted by suggestive information supplied to those witnesses by the police. (ECF No. 32 at 20.)
21
He also contends that “none of the witness identifications were reliable when considered in light
22
of the witnesses‟ limited opportunities to view the criminal at the instant of the crime, the
23
witnesses‟ degree of attention, the accuracy of their prior descriptions of their assailants, their
24
level of certainty at the time of the confrontations, and the time between the crimes and the
25
confrontations.” (Id.) Petitioner further argues that each of the identifications were unreliable
26
because: (1) the witnesses were not African-American and therefore not the same race as
27
petitioner; (2) some of the witnesses were uncertain of their choice of petitioner at the time of
28
their identification; and (3) the witnesses‟ prior descriptions of the robber tended to be vague,
20
1
indicating they did not really get a good luck at the robber. (Id. at 22; ECF No. 45 at 10, 15.)
2
Petitioner asserts that “all of the clerks were focused on the clothing and the weapon, but not the
3
assailant‟s face.” (ECF No. 32 at 24.) Finally, petitioner argues that the live lineup itself was
4
unduly suggestive because he “was thinner than the other suspects and because he was the only
5
suspect in the lineups who had a braid protruding from one side of his hat, thereby calling
6
particular attention to him.” (ECF No. 32 at 22.)
7
In general, petitioner asserts that the state court decisions rejecting his challenges to the
8
eyewitness identification evidence constituted “unreasonable applications of clearly established
9
federal law in ignoring the impact of the tainted identification procedures” and that the California
10
Court of Appeal ignored the “cumulative effect of impermissible methods.” (ECF No. 45 at 11,
11
15.)
12
13
3. Applicable Law
The Due Process Clause of the United States Constitution prohibits the use of
14
identification procedures which are “unnecessarily suggestive and conducive to irreparable
15
mistaken identification.” Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds
16
by Griffith v. Kentucky, 479 U.S. 314, 326 (1987). A suggestive identification violates due
17
process if it was unnecessary or “gratuitous” under the circumstances. Neil v. Biggers, 409 U.S.
18
188, 198 (1972). An identification procedure is suggestive where it “[i]n effect . . . sa[ys] to the
19
witness „This is the man.‟” Foster v. California, 394 U.S. 440, 443 (1969). “[E]ach case must be
20
considered on its own facts” and whether due process has been violated depends on “the totality
21
of the surrounding circumstances.” Simmons v. United States, 390 U.S. 377, 383 (1968) (citing
22
Stovall, 388 U.S. at 302).
23
“Even when the police use [a suggestive identification] procedure, suppression of the
24
resulting identification is not the inevitable consequence.” Perry v. New Hampshire, ___ U.S.
25
___, ___, 132 S. Ct. 716, 719 (2012). Courts must assess each case to determine whether
26
improper police conduct created a “substantial likelihood of misidentification.” Biggers, 409
27
U.S. at 201. “Where the „indicators of [a witness‟] ability to make an accurate identification‟ are
28
„outweighed by the corrupting effect‟ of law enforcement suggestion, the identification should be
21
1
/////
2
suppressed.” Perry, 132 S. Ct. at 719 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 116
3
(1977)).
4
Factors indicating the reliability of an identification include: (1) the opportunity to view
5
the criminal at the time of the crime; (2) the witness‟ degree of attention (including any police
6
training); (3) the accuracy of the prior description; (4) the witness‟s level of certainty at the
7
confrontation; and (5) the length of time between the crime and the identification. Brathwaite,
8
432 U.S. at 114 (citing Biggers, 409 U.S. at 199-200). Additional factors to be considered in
9
making this determination are “the prior opportunity to observe the alleged criminal act, the
10
existence of any discrepancy between any pre-lineup description and the defendant‟s actual
11
description, any identification prior to lineup of another person, the identification by picture of
12
the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the
13
lapse of time between the alleged act and the lineup identification.” United States v. Wade, 388
14
U.S. 218, 241 (1967). The “central question,” is “whether under the „totality of the
15
circumstances‟ the identification is reliable even though the confrontation procedure was
16
suggestive.” Biggers, 409 U.S. at 199. See also United States v. Drake, 543 F.3d 1080, 1088
17
(9th Cir. 2008).
18
If the flaws in the pretrial identification procedures are not so suggestive as to violate due
19
process, “the reliability of properly admitted eyewitness identification, like the credibility of the
20
other parts of the prosecution‟s case is a matter for the jury.” Perry, 132 S. Ct. at 719; Foster, 394
21
U.S. at 443 n.2. See also Brathwaite, 432 U.S. at 116 (“[j]uries are not so susceptible that they
22
cannot measure intelligently the weight of identification testimony that has some questionable
23
feature”); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996) (unless the procedure used is
24
so suggestive that it raises a “very substantial likelihood of irreparable misidentification,” doubts
25
go to the weight, not the admissibility, of the evidence and “identification evidence is for the jury
26
to weigh”) (quoting United States v. Kessler, 692 F.2d 584, 586-87 (9th Cir. 1982)). On the other
27
hand, if an out-of-court identification is inadmissible due to unconstitutionality, a related in-court
28
identification is also inadmissible unless the government establishes that it is reliable by
22
1
introducing “clear and convincing evidence that the in-court identifications were based upon
2
observations of the suspect other than the lineup identification.” Wade, 388 U.S. at 240. See also
3
United States v. Hamilton, 469 F.2d 880, 883 (9th Cir. 1972) (in-court identification admissible,
4
notwithstanding inherent suggestiveness, where it was obviously reliable).
5
Under California law, an extrajudicial identification violates a defendant‟s right to due
6
process only if the identification procedure was unduly suggestive and unnecessary, and the
7
identification itself, under the totality of the circumstances, was unreliable. People v. Carpenter,
8
15 Cal.4th 312, 366-367 (1997). The defendant has the burden of showing the identification
9
procedure was unfair “as a demonstrable reality, not just speculation.” People v. DeSantis, 2
10
Cal.4th 1198, 1222 (1992). See also People v. Ochoa, 19 Cal.4th 353, 412 (1998). If the
11
challenged procedure is not impermissibly suggestive, the reviewing court‟s inquiry into the due
12
process claim ends. Ochoa, 19 Cal.4th at 412; DeSantis, 2 Cal.4th at 1224 n.8. As the California
13
Supreme court has stated,
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15
16
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18
19
20
21
22
The issue of constitutional reliability depends on (1) whether the
identification procedure was unduly suggestive and unnecessary
(Manson v. Brathwaite [(1977)] 432 U.S. [98,] 104-107 . . .; and if
so, (2) whether the identification itself was nevertheless reliable
under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the criminal at the
time of the crime, the witness‟s degree of attention, the accuracy of
[her] prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime
and the confrontation (id. at pp. 109-114 . . .). If, and only if, the
answer to the first question is yes and the answer to the second is
no, is the identification constitutionally unreliable.
DeSantis, 2 Cal.4th at 1222.
In California, generally, a pretrial identification procedure is deemed unfair only if it
23
suggests the identity of the person suspected by the police before the witness has made an
24
identification. People v. Brandon, 32 Cal.App.4th 1033, 1052 (1995). The crucial question under
25
California law is whether the defendant was singled out from the others in such a way that his
26
identification was a foregone conclusion under the circumstances. People v. Faulkner, 28
27
Cal.App.3d 384, 391 (1972) disapproved on other grounds in People v. Hall, 28 Cal.3d 143, 156,
28
fn.8 (1980) and People v. Bustamonte, 30 Cal.3d 88, 102 (1981)).
23
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4. Analysis
In order to prevail on his challenges to the eyewitness identifications admitted into
4
evidence at his trial, petitioner must demonstrate that the California Court of Appeal‟s
5
adjudication of the claim was “objectively unreasonable” and “so lacking in justification that
6
there was an error well understood and comprehended in existing law beyond any possibility for
7
fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Petitioner has failed to make the
8
required showing.
9
The undersigned agrees with the California Court of Appeal‟s conclusion that the live
10
lineup procedure utilized in petitioner‟s case was not unduly suggestive. Photographs of the
11
lineup participants have been provided to this court. (See Resp‟t‟s Lod. Doc. 15.) As noted by
12
the state appellate court, petitioner was not the only participant with braids in his hair or with hair
13
protruding from the bottom of his baseball cap, and there were several participants who appeared
14
to be approximately the same size as petitioner. (See Id.) None of the lineup participants stand
15
out as being significantly different in appearance from the others. The selection of participants in
16
the lineup was not “unnecessarily suggestive” and does not appear to this court to have been
17
“conducive to irreparable mistaken identification.” Stovall, 388 U.S. at 302. Accordingly,
18
standing alone, the live lineup procedure employed did not violate petitioner‟s right to due
19
process. See United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999) (photo lineup was not
20
impermissibly suggestive where the defendant‟s picture was placed in the center of the array, was
21
darker than the rest, and was the only one in which the eyes were closed); United States v.
22
Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (array not impermissibly suggestive when
23
defendant‟s photograph was only one in which individual wore wig and had bruises on face);
24
United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987) (photographic array was not
25
impermissibly suggestive when defendant‟s photograph was hazier than others); United States v.
26
Sambrano, 505 F.2d 284, 286 (9th Cir. 1974) (photographic array in which defendant‟s
27
photograph was darker and clearer was not impermissibly suggestive); see also United States v.
28
Carr, 761 F.3d 1068, 1075-76 (9th Cir. 2014) (fact that witness felt pressured and had an
24
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2
incentive to cooperate in the hope of receiving a lesser charge or a lighter sentence did not create
3
an impermissibly suggestive lineup).
4
As described above, Meton and Mar identified petitioner at the live lineup after having
5
previously viewed a photograph of petitioner. Specifically, a sequential photo lineup was shown
6
to Meton and still photos from the video of the Chetty murder were shown to Mar. Witness
7
Fernandez was shown the surveillance video from his own robbery. As the California Court of
8
Appeal correctly noted, the fact that petitioner was the only individual common to both the photos
9
and the live lineups shown to witnesses did not, without more, violate due process. This is true
10
even though the video shown to Fernandez was from his own robbery. See United States v.
11
Davenport, 753 F.2d 1460, 1463 (9th Cir. 1985) (“The fact that [robbery suspect] was the only
12
individual common to the photo spread and the lineup cannot, without further indicia of
13
suggestiveness, render the lineup conducive to irreparable misidentification.”); United States v.
14
Monks, 774 F.2d 945, 956 (9th Cir. 1985) (identification procedures were not impermissibly
15
suggestive where witnesses were shown a surveillance photograph of their bank robber just
16
before they identified the defendant in a photographic lineup); United States v. Stubblefield, 621
17
F.2d 980, 983 (9th Cir. 1980) (“[t]he rights of the accused are not jeopardized when, as here, the
18
recollection of an eyewitness is refreshed by the use of photographs of the crime itself”). United
19
States v. Portillo, 633 F.2d 1313, 1324 (9th Cir. 1980) (rejecting the argument that “showing an
20
eyewitness surveillance photographs taken of the robbery as it occurred was impermissibly
21
suggestive”). This is not a situation where witnesses were shown two live lineups in which
22
petitioner was the only participant in common, as was the case in Foster. Nor is this a case where
23
the police specifically emphasized petitioner as the robber in some overly suggestive way. See
24
Simmons, 390 U.S. at 383-84 (noting that “improper employment of photographs by police may
25
sometimes cause witnesses to err in identifying criminals”). Accordingly, the fact that witnesses
26
Merton, Mar, and Fernandez each saw a photograph of petitioner prior to participating in the live
27
lineup procedure at which they identified him as the robber did not render the procedure overly
28
suggestive or conducive to a mistaken identification.
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This court also agrees with the California Court of Appeal that the in-court identification
3
of petitioner by witness Mathew Johnson was not unduly suggestive. As noted by the state
4
appellate court, there was no material difference between having Johnson view petitioner from
5
the witness stand with his glasses on as opposed to allowing him to approach petitioner until he
6
could see him as clearly as if he had been wearing glasses on the witness stand. Although
7
Johnson mentioned for the first time only after seeing petitioner up close that the robber had a
8
tattoo, Johnson later explained on cross-examination that he didn‟t mention the robber‟s tattoo to
9
the police because he was too stunned to do so immediately after having been robbed.
10
(Reporter‟s Transcript on Appeal (RT) at 1017, 1019.) In addition, this issue was fully explored
11
in front of the jury during Mr. Johnson‟s cross-examination. (Id. at 1017-21.) Petitioner‟s jury
12
was thus able to fully evaluate the reliability of Johnson‟s identification as well as of his specific
13
statement that the robber had a tattoo.
14
There is also no evidence in this case that improper police conduct in setting up these
15
identification procedures created a “substantial likelihood of misidentification.” Biggers, 409
16
U.S. at 201. Although many of these identification procedures were conducted more than 10 days
17
after the robberies, witnesses Fernandez, Mar, Mathew Johnson, and Fretwell all identified
18
petitioner as the robber. Even though Meton was unable to identify anyone in a photo lineup 15
19
days after the robbery, he identified petitioner as the robber in a subsequent live lineup and again
20
at petitioner‟s trial. All of the witnesses were in close proximity to petitioner during the robberies
21
and, with the possible exception of witness Fretwell, spoke to the robber directly during events
22
thereby meriting their full attention. Regardless of whether their initial descriptions of the robber
23
to police were vague, they had had sufficient exposure to the individual who robbed them to
24
recognize him later if they saw him. The undersigned does not find that in this case the
25
“‟indicators of [the witnesses‟] ability to make an accurate identification‟” were “‟outweighed by
26
the corrupting effect‟ of law enforcement suggestion.” Perry, 132 S. Ct. at 719. In short, there is
27
no evidence before this court case suggesting that the circumstances gave rise to a substantial
28
likelihood of mistaken identification or that the identifications of petitioner by witnesses were
26
1
otherwise unreliable. See Biggers, 409 U.S. at 198-99; Johnson, 820 F.2d at 1072. Because the
2
identification procedures utilized in the case were not unduly suggestive, the trial court was not
3
required to suppress the witnesses‟ in-court identifications of petitioner. Rather, the reliability of
4
those witness identifications was a matter for the jury consider and ultimately to decide. Perry,
5
132 S. Ct. at 719. See also Angov v. Holder, 736 F.3d 1263, 1272 (9th Cir. 2013) (“The way to
6
deal with unreliable evidence, the Supreme Court tells us, is via the adversary system, which
7
includes the ability to confront witnesses, the assistance of counsel, jury instructions, the burden
8
of proof and the right to introduce contrary evidence.”)
9
For the reasons set forth above, the undersigned concludes that the identification
10
procedures that were employed in this case did not violate petitioner‟s right to due process. The
11
decision of the California Court of Appeal to the same effect is not contrary to or an unreasonable
12
application of federal law. Accordingly, petitioner is not entitled to federal habeas relief with
13
respect to this claim.
14
B. Exclusion of Third-Party Culpability Evidence
15
In his next ground for relief, petitioner claims that the trial court violated his rights to a
16
fair trial, to present a defense of third-party culpability, and to due process when it improperly
17
relied on petitioner‟s suppressed confession to deny his request to introduce testimony at trial
18
from Thomas Claussen, the gas station clerk at the Arco/Valero station that was robbed, that the
19
gunman in that robbery “was darker” than petitioner and the four other men he viewed in a live
20
lineup. (ECF No. 32 at 7.) Petitioner was not charged with the Arco/Valero robbery, even
21
though he confessed to committing it during his police interrogation. However, petitioner argues
22
that evidence that the robber in that case was “darker” than he, would tend to raise a reasonable
23
doubt as to whether he was the perpetrator of the robberies he was charged with. (Id. at 28.)
24
Petitioner points out that his defense theory was that the robberies charged against him were
25
actually committed by his cousin Thaddeus Taylor, “who shared a bedroom with Mr. Johnson,
26
had access to a handgun and had similar facial features, although Mr. Taylor had darker skin.”
27
(Id.) Petitioner notes that a witness who saw the face of the man leaving the Shell station after
28
the Chetty shooting identified a photograph of Thaddeus Taylor as the possible perpetrator of that
27
1
robbery and failed to identify petitioner as the robber at a subsequent photo lineup. (Id. at 27.)
2
Petitioner argues that the trial court‟s refusal to allow petitioner to call Claussen to testify at his
3
trial about this matter, coupled with the court‟s refusal to allow the introduction into evidence of
4
exculpatory statements made by petitioner to his girlfriend, “thwarted the defense efforts” to
5
place the blame for the robberies and the shooting on Thaddeus Taylor. (Id.)
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1. State Court Decision
The California Court of Appeal summarized the background to this claim of evidentiary
ruling error, as follows:
Excluding Evidence of Uncharged Robbery under Evidence
Code Section 352 Based on Suppressed Confession
Johnson claims the trial court erred when it relied on his suppressed
confession to the uncharged robbery of Thomas Claussen at the
Arco/Valero station to determine the evidence from that robbery,
which Johnson claimed was exculpatory, was inadmissible under
Evidence Code section 352 as misleading and likely to confuse the
jury. We conclude the trial court did not err by relying on the
suppressed confession in this instance.
A. Background information
Originally, both Johnson and Holmes were charged with the June
30, 2005 robbery of Thomas Claussen at the Arco/Valero gas
station at San Juan Avenue and Winding Way. The prosecution
later dropped the charge against Johnson but continued to press the
charge against Holmes.
After his arrest, Johnson confessed to detectives that he committed
the Claussen robbery and that he wore the Kobe Bryant jersey seen
on him on the store‟s surveillance video. The trial court, however,
suppressed all of Johnson‟s statement from being used in the
People‟s case-in-chief because Johnson did not receive an adequate
Miranda warning. The statement was admissible only to impeach
defendant if he testified, as the court found the statement was not a
product of coercion.
Holmes also admitted her involvement in the Claussen robbery.
She informed detectives after her arrest that she drove Johnson to
the Arco/Valero station. She claimed Johnson did not say anything
to her afterwards. She did not know what Johnson had done there
until a couple of days later when Johnson told her.
Claussen, the victim of that robbery, viewed a live lineup about two
weeks after the incident. Johnson was in the lineup. Claussen was
unable to identify anyone as the robber. Claussen wrote he was
unable to identify anyone because “the guy who came in was
darker.”
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During motions in limine, and after the People had dropped the
Claussen robbery charge against Johnson, Johnson‟s attorney asked
the court to allow Johnson‟s jury to hear evidence of this uncharged
robbery that would otherwise have been presented only to Holmes‟s
jury. Defense counsel claimed the evidence was relevant and
exculpatory because Claussen had stated the culprit was darker
skinned than those in the lineup and thus had eliminated Johnson as
a suspect.
The prosecutor urged the court not to admit the evidence pursuant
to Evidence Code section 352 (Section 352).FN4 The prosecutor
argued that admitting the evidence in Johnson‟s case as exculpatory
was a fraud on the court because Johnson had confessed in his
suppressed statement that he committed this robbery.
FN4. Section 352 authorizes a court to “exclude evidence if its
probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
The trial court denied Johnson‟s motion, but it did so without
prejudice if Johnson chose to develop an affirmative defense
arguing that his cousin, Thaddeus Taylor, was the gunman or had
performed other robberies.
Thaddeus testified at trial. He acknowledged his complexion is
darker than Johnson‟s. Both he and Johnson wore their hair in
braids at times. Johnson wore an earring in his left ear, and Natalie
and Chelsea testified that Thaddeus wore an earring. (Thaddeus
denied he wore an earring.) Both Johnson and Thaddeus had their
tongues pierced. When Natalie first met Johnson, she sometimes
confused him with Thaddeus because they looked similar. A friend
of Natalie‟s who had been dating Thaddeus also confused Johnson
and Thaddeus.
One difference between Johnson and Thaddeus was that Johnson
has a tattoo on the left side of his neck with the words, “Smile now
cry later.” Thaddeus did not have a tattoo.
Of relevance to Johnson‟s case, Thaddeus stated he and Johnson
shared a room at his father‟s house in 2005. Thaddeus‟s father,
Fred Taylor, required Thaddeus and Johnson to have jobs and pay
rent in order to stay at the house. Thaddeus and Johnson had
worked at the same drug store for a time, but both had quit and
neither was working at the time of the crimes. They shared each
other‟s clothes, and Thaddeus owned a Kobe Bryant jersey like the
one the Claussen robber wore. Defendant Holmes was one of
Thaddeus‟s friends, and she had given him rides a couple of times
in her car. Thaddeus knew where Johnson kept his gun. A few days
after Chetty‟s murder, Thaddeus showed detectives where
Johnson‟s gun was hidden inside a speaker in his bedroom.
Thaddeus denied committing any of the robberies or the murder.
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Before Thaddeus completed his testimony, Johnson filed a motion
asking the court to reconsider its ruling that excluded evidence of
the uncharged Claussen robbery in his trial. Johnson asserted
Claussen‟s failure to identify him, and, in light of Thaddeus‟s
darker complexion, Claussen‟s statement that the robber was darker
than him, were relevant facts in opposition to the prosecution‟s
showing of a pattern in all of the robberies. He also noted a darker
Black male was seen purchasing bullets at the Big 5 store with
Johnson, Holmes, and Schroeder. Johnson argued his prior
confession to the Claussen robbery was irrelevant and could not be
considered because the court had suppressed his statement.
At a hearing on the motion, Johnson specifically raised the defense
of third party culpability as another basis for admitting the
evidence. The perpetrator of the Claussen robbery was wearing a
Kobe Bryant jersey, Thaddeus owned such a jersey, and a detective
had allegedly commented to Thaddeus during an interview that he
looked like the person depicted in a surveillance photo from the
Claussen robbery.
The trial court denied the motion to modify its prior order. The
court researched the issue of whether it could rely on the suppressed
confession in this instance and found no precedent. From that
point, the court reasoned as follows:
“So that leaves me with a situation that there is an uncharged
robbery and that the only reason not to allow Mr. Johnson to
present it to this jury is that the Court is possessed of this
knowledge: That out of a suppressed statement, a confession, the
defendant admitted doing that robbery and wearing that shirt, and
the jury does not know that; and out of an admissible statement, but
not in Mr. Johnson‟s trial, the co-defendant Ms. Holmes has said
that the defendant did that robbery.
“One approach, obviously, would be for the Court to just step back
and say that evidence is suppressed and it cannot be considered;
there is no issue before me. Once I found that there‟s third-party
culpability evidence that was otherwise relevant, it goes before the
jury; or that a third-party culpability defense is valid and that if
there‟s third-party culpability evidence otherwise relevant, it goes
before the jury.
“But to do that, I would have to be complicitous in putting that
misleading information before the jury, which I think would be
contrary, among other things, to [Section] 352 of the Evidence
Code, although, plainly, I have the discretion to that.
“But more fundamentally, contrary to the Court‟s responsibility to
the integrity of the judicial system and of the trial itself, the
integrity of the system has to stand for something, and if the Court
were to consider what‟s before me and affirmatively conclude that
the uncharged offense which the Court makes a factual finding is
something that the defendant and not Mr. Taylor did based upon the
30
1
defendant‟s own statement and the statement of Ms. Holmes, the
2
Court would be complicitous in putting inaccurate, confusing and
misleading information before the jury.
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“The Miranda holding was designed to protect the defendant. It
was not intended to give him a sword to go after the other side. If I
in suppressing the Miranda – suppressing the confession insofar as
it did violate Miranda, which it did, and even though the confession
itself was voluntary, uncoerced and reliable, if I extend that to do
more than simply prevent the People from using it in their case and
allow the defendant to rely on it [the exclusion] to put misleading
information in front of the jury, then I think I‟m compromising the
integrity of the trial process, and I would go a step further in
compromising the integrity of the Miranda holding itself.
“I‟m mindful that if the defendant were to take the stand, which
plainly he wouldn‟t if the Court allowed this uncharged count in,
that the People could introduce his confession to impeach him.
“There are a number of ways to address that consideration. One
would be to say to the defendant well, you may put on the evidence
of the uncharged offense, but now the district attorney should be
entitled by analogy to what would happen if you took the stand
yourself, Mr. Johnson, and testified to apprise the jury of your
contrary prior statement. There is no case law that stands for that
proposition and I‟m not going to do that because I think the proper
thing to do would be to simply conclude that [a voluntary,]
uncoerced, reliable but properly suppressed confession pursuant to
Miranda in which the defendant admits to an uncharged count that
the defendant is thereby precluded from presenting evidence that
another person committed that uncharged count to advance a thirdparty culpability defense. Certainly the defendant can take the
stand and advance the argument, but I don‟t think he should be
permitted to put before the jury through other witnesses information
which he knows to be untrue.
“Miranda is a defensive, not an offensive, mechanism. It‟s to
protect the defendant, not to pull the wool over the jury. [¶] . . . [¶]
“[I]t seems to me that the proper course is to preclude the defendant
from putting this information in front of the jury through proxy. If
he wishes to testify and subject himself to his prior inconsistent
statement on that, that‟s certainly his option.”
Johnson, 183 Cal.App.4th at 274-78.
On direct appeal, the California Court of Appeal rejected petitioner‟s argument that the
25
trial court‟s evidentiary ruling excluding evidence of Claussen‟s remarks violated his right to due
26
process. The state appellate court reasoned as follows:
27
28
Before us, Johnson claims the trial court‟s ruling is incorrect. He
asserts that by excluding the third-party culpability evidence based
on his suppressed confession, the court wrongly set aside the
31
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2
3
constitutional presumption of innocence and made its own
determination that Johnson was guilty of committing the Claussen
robbery by relying on the inadmissible confession. He asserts the
court was required to apply the normal standard of admissibility of
third-party culpability evidence, and this evidence satisfied that
standard and was not unduly prejudicial under Section 352.
4
B. Analysis
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Johnson appears to have modified his direct attack under Miranda.
He now argues the court‟s reliance on the confession as the basis
for not admitting the Claussen robbery evidence amounted to a
violation of the presumption of innocence that attached to him at
trial. In other words, Johnson claims the trial court applied the
presumption of innocence differently to him, because he was a
confessing defendant, than it would have applied the presumption
to a nonconfessing defendant. He asserts the court determined
Johnson was guilty of committing the uncharged robbery based on
his confession, and it thus determined the third party culpability
evidence was inadmissible because it had already found Johnson to
be guilty of that crime. The court‟s doing so, Johnson claims,
ultimately denied him his right to present a defense, particularly in
light of the rule of Miranda.
Johnson‟s argument misstates the trial court‟s action, and it
misunderstands how the presumption of innocence and the right to
present a defense apply to his case. The court did not find Johnson
guilty of the uncharged robbery. It concluded only that his
confession was relevant, reliable, and admissible for the limited
purpose of the court‟s weighing the prejudicial effect of admitting
the Claussen robbery evidence.
The presumption of innocence does not prohibit a court from
weighing the credibility and prejudicial nature of third party
culpability evidence under Section 352. The presumption is not
irrebuttable, as Johnson‟s argument implies. Any competent
evidence which tends to rebut the presumption is admissible, and
the presumption is overcome by proof of guilt beyond a reasonable
doubt. (People v. Yeager (1924) 194 Cal. 452, 486, 229 P. 40.)
Considering and weighing inculpatory evidence does not violate the
presumption of innocence. “It is true, as suggested by appellant,
that where two conclusions may reasonably be drawn concerning
the defendant‟s conduct, one assigning a guilty and the other an
innocent purpose thereto, it is the law that innocence will be
presumed [by the jury], rather than guilt. But to give due weight to
the presumption of innocence does not require that jurors [or, in this
instance, the court] blind their eyes and shackle their reason in
viewing the evidence and in judging the defendant‟s intentions.”
(People v. McDougal (1925) 74 Cal. App. 666, 672, 241 P. 598.)
Certainly if a jury may weigh evidence without voiding defendant‟s
presumption of innocence when fulfilling its factfinding
responsibilities and deciding his guilt, the court may weigh
evidence without violating defendant‟s presumption of innocence
when fulfilling its factfinding responsibilities to decide whether to
32
1
admit evidence under Section 352.
2
Here, the court accorded great weight to Johnson‟s suppressed
confession, and rightly so.
Johnson made his confession
voluntarily, and Holmes corroborated Johnson‟s admission in her
confession. The court did not violate the presumption of innocence
in making this factual determination.
3
4
5
6
7
In short, the presumption is not a bar to the court weighing evidence
when called upon to do so. Johnson cites no case that so much as
even intimates the presumption of innocence would interfere with a
court‟s weighing of evidence when determining admissibility under
Section 352. The presumption simply does not apply in the manner
Johnson asserts.
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Nor does the court‟s weighing of evidence under Section 352 deny
Johnson a right to present a defense of third-party culpability. Our
Supreme Court faced this same argument in People v. Hall (1986)
41 Cal.3d 826, 226 Cal. Rptr. 112, 718 P.2d 99, and rejected it.
The court wrote: “Defendant contends his constitutional right to
present a defense precludes any application whatever of [Evidence
Code] section 352 to third-party culpability evidence: even remote
evidence of motive without more, he argues, might raise a
„reasonable doubt‟ of guilt. Indeed, defendant insists, the concept
of reasonable doubt is itself so elusive that any attempt to weigh the
probative value of such evidence must fail. He asserts that no
amount of time spent presenting such a defense could be regarded
as „undue,‟ and the only prejudice the court must avert is
„emotional bias.‟ [¶] The claim does not withstand scrutiny. As a
general matter, the ordinary rules of evidence do not impermissibly
infringe on the accused‟s right to present a defense. Courts retain,
moreover, a traditional and intrinsic power to exercise discretion to
control the admission of evidence in the interests of orderly
procedure and the avoidance of prejudice. [Citations.] As we
observed in [People v. Mendez (1924) 193 Cal. 39 [223 P. 65]] this
principle applies perforce to evidence of third-party culpability: „if
evidence of motive alone upon the part of other persons were
admissible, . . . in a case involving the killing of a man who had led
an active and aggressive life it might easily be possible for the
defendant to produce evidence tending to show that hundreds of
other persons had some motive or animus against the deceased . . .
.‟ (People v. Mendez, supra, 193 Cal. at p. 52 [223 P. 65].) Trials
must reach an end, and that end must be logical. (Ibid.)” (People v.
Hall, supra, 41 Cal.3d at pp. 834–835, 226 Cal. Rptr. 112, 718 P.2d
99, fn. omitted, original emphasis.)
Even without the Claussen robbery evidence, Johnson was still able
to present his third-party culpability defense. The jury heard all of
the testimony concerning the similarities between Johnson and
Thaddeus. They looked similar, they lived together, they shared
clothes, and they both were unemployed and needed money to pay
rent. Thaddeus knew Holmes. He also knew where Johnson kept
his gun. There was even evidence that one of the witnesses who
came upon the murder scene, when shown two photo lineups,
excluded Johnson as the suspect but included Thaddeus as someone
33
1
who resembled the suspect. Defense counsel also argued to the jury
2
that Thaddeus was the perpetrator. The court‟s ruling did not deny
Johnson his right to present this defense.
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Thus, the presumption of innocence and the right to present a
defense did not prevent the court from weighing all of the evidence
before it to determine whether the Claussen robbery evidence
would be misleading and prejudicial. The only question, then, is
whether Johnson‟s Fifth Amendment right not to incriminate
himself and the Miranda rule prevented the court from relying on
the suppressed confession when it ruled under Section 352. We
conclude it did not.
The Miranda exclusionary rule is a prophylactic and constitutional
rule employed to protect against violations of the Fifth
Amendment‟s self–incrimination clause as applied to the states
under the Fourteenth Amendment. (United States v. Patane (2004)
542 U.S. 630, 636, 124 S. Ct. 2620, 2625, 159 L.Ed.2d 667, 674–
675 (plur. opn.) (Patane); Dickerson v. United States (2000) 530
U.S. 428, 444, 120 S. Ct. 2326, 2336, 147 L.Ed.2d 405, 420
(Dickerson).) The rule fosters the “general goal of deterring
improper police conduct” and “the Fifth Amendment goal of
assuring trustworthy evidence . . . ” (Oregon v. Elstad (1985) 470
U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L.Ed.2d 222, 231–232
(Elstad).)
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Miranda, however, has never been interpreted as barring all use of
suppressed confessions at trial. “Miranda barred the prosecution
from making its case with statements of an accused made while in
custody prior to [being warned or] having or effectively waiving
counsel.
It does not follow from Miranda that evidence
inadmissible against an accused in the prosecution‟s case in chief is
barred for all purposes, provided of course that the trustworthiness
of the evidence satisfies legal standards.” (Harris v. New York
(1971) 401 U.S. 222, 224, 91 S. Ct. 643, 645, 28 L.Ed.2d 1, 4
(Harris).) “[T]he Miranda presumption, though irrebuttable for
purposes of the prosecution‟s case in chief, does not require that the
statements and their fruits be discarded as inherently tainted.”
(Elstad, supra, 470 U.S. at p. 307, 105 S. Ct. 1285.)
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The United States Supreme Court has carved out exceptions to the
exclusionary rule upon “recognition that the concerns underlying
the Miranda [ ] rule must be accommodated to other objectives of
the criminal justice system.” (Patane, supra, 542 U.S. at p. 644,
124 S. Ct. 2620 (conc. opn. of Kennedy, J.).) In James v. Illinois
(1990) 493 U.S. 307, 110 S. Ct. 648, 107 L.Ed.2d 676 (James), the
high court set forth the balancing test it uses to establish exceptions
to the Miranda exclusionary rule. Under that test, exceptions to the
rule are made “where the introduction of reliable and probative
evidence would significantly further the truth-seeking function of a
criminal trial and the likelihood that admissibility of such evidence
would encourage police misconduct is but a „speculative
possibility.‟ [Citation.]” (James, supra, 493 U.S. at p. 311, 110 S.
Ct. 648 fn. omitted.)
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In particular, the Miranda exclusionary rule does not prohibit the
introduction of a voluntary, uncoerced and reliable but unwarned
statement made by a defendant in order to prevent the defendant
from committing perjury or a fraud on the court. “„It is one thing to
say that the Government cannot make an affirmative use of
evidence unlawfully obtained. It is quite another to say that the
defendant can turn the illegal method by which evidence in the
Government‟s possession was obtained to his own advantage, and
provide himself with a shield against contradiction of his
untruths.‟” (Harris, supra, 401 U.S. at p. 224, 91 S. Ct. 643 quoting
Walder v. United States (1954) 347 U.S. 62, 65, 74 S. Ct. 354, 356,
98 L.Ed. 503, 507.)
Harris authorized impeaching a testifying defendant with his
voluntary but suppressed confession. “The Court in Harris rejected
as an „extravagant extension of the Constitution,‟ the theory that a
defendant who had confessed under circumstances that made the
confession inadmissible, could thereby enjoy the freedom to „deny
every fact disclosed or discovered as a “fruit” of his confession,
free from confrontation with his prior statements' and that the
voluntariness of his confession would be totally irrelevant.
[Citations.]” (Elstad, supra, 470 U.S. at p. 307, 105 S. Ct. 1285.)
Although Harris concerned the admission of a defendant‟s
suppressed statement to impeach the defendant when he testifies at
trial, the ruling‟s principle of admitting the evidence in a context
other than the prosecution‟s case-in-chief so as to avoid false
testimony applies equally here and satisfies the James balancing
test. First, considering the evidence for the limited purposes of
Section 352 substantially furthers the trial court‟s truth-seeking
function. Johnson sought to use the testimony of Claussen to
convince the jury he did not rob Claussen and, by extension,
commit the other robberies, when in fact he was the person who
robbed Claussen. The court‟s reliance on his suppressed confession
significantly furthered its truth-seeking function by ensuring the
jury was not confused or misled by a bogus argument.
Second, the court‟s use of the suppressed confession in this instance
raised no threat of police misconduct. A law enforcement officer
has nothing to gain from this decision. It is entirely improbable a
law enforcement officer would omit or incompletely give a Miranda
warning in the hope a resulting confession may be considered in a
Section 352 motion to counter a misleading argument by a
duplicitous defendant. Such a scenario is too speculative and
tenuous for a law enforcement officer to entertain while conducting
an interrogation.
Moreover, the court‟s use of Johnson‟s confession under Section
352 was outside the sweep of the Miranda presumption and did not
violate Johnson‟s Fifth Amendment rights, as the evidence was not
used by the prosecution in its case-in-chief. The confession was not
used to determine Johnson‟s guilt of any of the crimes with which
he was charged. The jury never heard or knew of Johnson‟s
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confession. Indeed, the trial court considered only that portion of
the confession where Johnson admitted committing an uncharged
offense. Johnson cannot argue the confession resulted in him
incriminating himself when he was not charged with the crime to
which he confessed.
Johnson argues the trial court‟s consideration of his confession
violated the rule of Holmes v. South Carolina (2006) 547 U.S. 319,
126 S. Ct. 1727, 164 L.Ed.2d 503 but that case does not apply here.
There, the Supreme Court struck down a state rule of evidence that
third-party guilt was inadmissible where there was strong evidence,
particularly, strong forensic evidence, of the defendant‟s guilt. The
high court invalidated the rule in part because it preempted the trial
court from considering the prejudicial effects of the third-party
evidence with its probative value, as well as the credibility of the
prosecution‟s evidence, and thus was an arbitrary rule. (Id. at pp.
326–331, 126 S. Ct. 1727.) Of course, the process missing in the
state rule was the very process in which the trial court here was
engaged when it considered Johnson‟s confession – weighing the
probative value of Johnson‟s third party evidence with its
prejudicial effect and in consideration of the prosecution‟s
suppressed evidence. Holmes v. South Carolina did not involve the
effect of Miranda on the court‟s consideration of a suppressed
confession under Section 352, and thus it does not aid Johnson at
all.
We are aware the Supreme Court in James, supra, 493 U.S. 307,
110 S. Ct. 648, 107 L.Ed.2d 676, determined the impeachment
exception to the Fourth Amendment‟s exclusionary rule did not
extend to the prosecution‟s use of evidence illegally obtained from
a defendant to impeach the testimony of defense witnesses besides
defendant. In that case, the high court reasoned that allowing a
defendant‟s inculpatory statement, suppressed as fruit of an
unlawful arrest, to be used to impeach other defense witnesses
would not significantly promote the court‟s truth-seeking function
as it would likely chill defendants from presenting a defense
through the testimony of others. (Id. at pp. 314–316, 110 S. Ct.
648.) The court also determined that admitting the suppressed
statement to impeach all defense witnesses would encourage police
misconduct to obtain evidence unlawfully, as such evidence could
be used against potentially many more witnesses. (Id. at pp. 317–
319, 110 S. Ct. 648.)
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Although we apply the balancing test announced in James, we reach
a different conclusion on the facts presented to us. The reasoning
of James is inapposite here. The trial court did not authorize use of
Johnson‟s confession to impeach a witness. Rather, the court
considered the confession in order to prevent Johnson from
extrapolating a false argument from truthful testimony. James was
concerned that a broad exception to the exclusionary rule would
chill defendants from calling witnesses “who would otherwise offer
probative evidence.” (James, supra, 493 U.S. at p. 316, 110 S. Ct.
648 italics added, fn. omitted.) James said nothing about a
defendant‟s attempt to use Miranda as a sword to force the jury to
consider a false and misleading argument.
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As already stated, unlike in James, allowing the trial court to utilize
the suppressed confession when ruling on the admissibility of
evidence under Section 352 significantly promotes the court‟s truthseeking function, as it prevents false or misleading argument from
being made to the jury. The only defense chilled by the trial court's
action was a false defense.
Moreover, the trial court‟s consideration of the suppressed
confession did not weaken the exclusionary rule‟s deterrent effect.
It did not increase the number of witnesses against which the
confession could be used, nor did it significantly increase the
occasions on which the confession could be used.
In effect, the trial court was using Johnson‟s suppressed confession
to impeach Johnson‟s implied claim that he did not perform the
Claussen robbery. Such use was approved in Harris and recognized
approvingly in James. (James, supra, 493 U.S. at pp. 312–313, 110
S. Ct. 648.) Because the focus here is solely on Johnson, the risks
contemplated by the James court do not exist in this case.
The Supreme Court of Illinois faced a situation similar to this case
in People v. Payne (1983) 98 Ill.2d 45, 74 Ill.Dec. 542, 456 N.E.2d
44 (Payne), and reached the same result we do. There, after
arresting the defendants, police officers searched their apartment
without a warrant. They found two handguns inside a refrigerator.
The trial court suppressed the weapons. (Id. at pp. 48–49, 74
Ill.Dec. 542, 456 N.E.2d 44.)
On defendant‟s cross-examination of one of the arresting officers,
however, counsel asked if the defendants and their apartment were
searched. The officer said they were, and counsel asked no further
questions. The trial court determined this cross-examination
“„opened the door‟” to admitting one of the suppressed weapons to
rebut the false impression created by the cross-examination that
nothing was recovered from the apartment. (Payne, supra, 98 Ill.2d
at pp. 49–50, 74 Ill.Dec. 542, 456 N.E.2d 44.)
The Illinois Supreme Court upheld the trial court‟s admission of the
suppressed weapon. Although Payne preceded James, the Illinois
Supreme Court presciently applied the balancing test later
established by James, and its reasoning applies equally here: “The
problem in this case arose not from false statements, made by
defendants while testifying, but rather from cross-examination and
potential argument by the defense which falsely implied the
absence of physical evidence connecting defendants with the crimes
. . . . [W]e do not believe that [defendants] could affirmatively
misrepresent or falsely imply that the police found no physical
evidence connected with the robbery during their search.
[Citations.]
“„There is no gainsaying that arriving at the truth is a fundamental
goal of our legal system‟ (United States v. Havens (1980) 446 U.S.
620, 626, 100 S. Ct. 1912, 1916, 64 L.Ed.2d 559, 565), and we
37
1
consider that allowing the defense or prosecution to misrepresent to
the jury the actual facts of the case is neither consistent with the
proper functioning and continued integrity of the judicial system
nor with the polices of the exclusionary rules.” (Payne, supra, 98
Ill.2d at pp. 50–52, 74 Ill.Dec. 542, 456 N.E.2d 44.)
In this instance, the truth-seeking function of the court outweighs
any threat of police misconduct or of a violation of Johnson‟s right
not to incriminate himself. As a result, the trial court did not abuse
its discretion under Section 352 when it refused to admit evidence
of the Claussen robbery based on Johnson‟s suppressed confession
to that robbery. The court‟s action did not violate Johnson‟s rights
to a presumption of innocence, to present a defense, and to the
protections of Miranda.
2
3
4
5
6
7
8
Id. at 278-85.
9
In his claim before this court, petitioner again asserts that the trial court violated the
10
presumption of innocence when it considered his suppressed confession in determining the
11
admissibility of Thomas Claussen‟s potential testimony. (ECF No. 32 at 29.) He argues, “there
12
is no authority for applying the presumption of innocence differently to confessing and
13
nonconfessing defendants.” (Id.) Petitioner argues that the trial court‟s determination that
14
Claussen‟s testimony might have misled the jury was based on “the trial court‟s own belief in
15
petitioner‟s guilt.” (Id. at 31.) He argues, as he did in state court, that the trial court‟s ruling
16
violated the holding in Holmes v. South Carolina, 547 U.S. 319 (2006), wherein the United States
17
Supreme Court held that the trial court‟s refusal to admit third-party culpability evidence based
18
on a state court rule which excluded such evidence if the prosecution evidence strongly supported
19
a guilty verdict denied the defendant a fair trial. (Id.) Petitioner argues that “focusing solely on
20
the confession, as the trial court did in Mr. Johnson‟s case, is the equivalent of focusing only on
21
the strength of evidence of guilt, as the South Carolina trial court did in Holmes.” (Id.)
22
Petitioner further argues that he was prejudiced by the trial court‟s exclusion of Claussen‟s
23
potential testimony that the Arco/Valero robber had darker skin than petitioner, and that Claussen
24
had failed to identify petitioner as his assailant at a live lineup. Petitioner reasons that the
25
prosecution‟s case, which according to him was based largely on unreliable eyewitness
26
identifications, was relatively weak and thus Claussen‟s testimony was “important and dramatic
27
evidence for the defense.” (Id. at 32.) He argues that the prejudice he suffered as a result of the
28
trial court‟s ruling was not mitigated by the fact that he was allowed to put on other evidence
38
1
suggesting that Thaddeus Taylor was the perpetrator of the robberies. (Id.) Petitioner also asserts
2
that the third-party culpability evidence he was allowed to introduce at trial was not as strong as
3
the potential Claussen testimony would have been. (Id. at 33.) He contends that the trial court‟s
4
ruling prevented him from putting on the “strongest case possible in his defense.” (Id.) Petitioner
5
also argues that the Claussen‟s potential testimony “would cause a reasonable juror to question
6
the reliability of the generic descriptions given by the other witnesses.” (Id. at 34.)
7
Finally, petitioner argues that the trial court‟s evidentiary rulings, which according to
8
petitioner were based on the trial judge‟s personal belief that petitioner was guilty of the
9
Arco/Valero robbery, constituted structural error. (Id.) He argues, “the [trial] court‟s ultimate
10
analysis that Mr. Johnson‟s defense should be restricted from presenting third-party culpability
11
evidence because of the existence of an inadmissible confession is a form of implicit bias.” (Id.)
12
13
2. Applicable Legal Standards and Analysis
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in
14
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution
15
guarantees criminal defendants “a meaningful opportunity to present a complete defense” and the
16
right to present relevant evidence in their own defense. Holmes, 547 U.S. at 324 (quoting Crane
17
v. Kentucky, 476 U.S. 683, 690 (1986)). However, the United States Supreme Court has not
18
“squarely addressed” whether a state court‟s exercise of discretion to exclude testimony violates a
19
criminal defendant‟s right to present relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59
20
(9th Cir. 2009). Nor has the Supreme Court clearly established a “controlling legal standard” for
21
evaluating discretionary decisions to exclude the type of evidence at issue here. Id. at 758.
22
Accordingly, the decision of the California Court of Appeal that the trial court did not violate
23
petitioner‟s federal constitutional rights in excluding proffered evidence of third party culpability
24
is not contrary to or an unreasonable application of clearly established federal law and may not be
25
set aside. Id. See also Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (“it is not „an
26
unreasonable application of‟ „clearly established Federal law‟ for a state court to decline to apply
27
a specific legal rule that has not been squarely established by [the United States Supreme
28
Court]”); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (relief is “unauthorized” under §
39
1
2254(d)(1) when the Supreme Court‟s decisions “give no clear answer to the question presented,
2
let alone one in [the petitioner‟s] favor,” because the state court cannot be said to have
3
unreasonably applied clearly established federal law); Brown v. Horell, 644 F.3d 969, 983 (9th
4
Cir. 2011) (“Between the issuance of Moses and the present, the Supreme Court has not decided
5
any case either „squarely address[ing]‟ the discretionary exclusion of evidence and the right to
6
present a complete defense or „establish[ing] a controlling legal standard‟ for evaluating such
7
exclusions.”).
8
9
More specifically, as respondent points out, petitioner has failed to cite any federal case
holding that a trial court violates a defendant‟s federal constitutional rights, or misapplies the
10
presumption of innocence, by considering a defendant‟s inadmissible but reliable confession in
11
deciding whether to admit evidence of third party culpability under state evidentiary rules. For
12
this reason alone, the state court decision rejecting petitioner‟s arguments on this issue was not
13
objectively unreasonable and petitioner is not entitled to federal habeas relief.
14
Petitioner‟s claim also fails on the merits. Evidence of potential third-party culpability
15
must be admitted when, under the “facts and circumstances” of the individual case, its exclusion
16
would deprive the defendant of a fair trial. Thus, in Chambers v. Mississippi, 410 U.S. 284, 303
17
(1973), exclusion of evidence of a third party confession was found to violate due process where
18
the excluded evidence was highly corroborated and the excluded testimony was crucial to the
19
defense. Likewise, in Lunbery v. Hornbeak, 605 F.3d 754, 760-61 (9th Cir. 2010), the exclusion
20
of a statement by a third party that he had killed defendant‟s husband deprived defendant of the
21
right to present a defense because the “excluded testimony . . . bore substantial guarantees of
22
trustworthiness and was critical to [defendant‟s] defense.” On the other hand, where the
23
proffered evidence of third party culpability simply affords a possible ground of suspicion
24
pointing to a third party and does not directly connect that person with the actual commission of
25
the crime, that evidence may be properly excluded. People of Territory of Guam v. Ignacio, 10
26
F.3d 608, 615 (9th Cir. 1993) (citing Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)).
27
28
Even if Claussen‟s statements had been admitted into evidence at petitioner‟s trial for all
purposes, this would not have absolved petitioner of the charged crimes. Mr. Claussen‟s
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proposed testimony that he believed the perpetrator of the robbery committed at his gas station
2
was “darker” than petitioner, is vague and subjective and would not have been particularly
3
relevant to the question whether petitioner committed any robberies other than the Arco/Valero
4
robbery. Nor was Claussen‟s potential testimony “crucial” to petitioner‟s defense because, as the
5
California Court of Appeal pointed out, petitioner was still allowed to present other evidence
6
tending to cast the blame for at least some of the robberies on Mr. Taylor. Specifically, as noted
7
by the state appellate court:
8
9
10
11
12
13
14
The jury heard all of the testimony concerning the similarities
between Johnson and Thaddeus. They looked similar, they lived
together, they shared clothes, and they both were unemployed and
needed money to pay rent. Thaddeus knew Holmes. He also knew
where Johnson kept his gun. There was even evidence that one of
the witnesses who came upon the murder scene, when shown two
photo lineups, excluded Johnson as the suspect but included
Thaddeus as someone who resembled the suspect. Defense counsel
also argued to the jury that Thaddeus was the perpetrator.
Johnson, 183 Cal.App.4th at 280.
Petitioner does not deny that the jury heard all of this evidence and argument. Rather, he
15
merely argues that the proposed testimony by Claussen was stronger than the evidence of third-
16
party culpability he was allowed to present at trial. The undersigned disagrees. Given all of the
17
evidence that petitioner was able to present at trial which supported his defense that Thaddeus,
18
and not petitioner, may have been the perpetrator of the charged crimes, the proposed testimony
19
by Claussen about an uncharged and apparently unrelated robbery would have added little of
20
substance to petitioner‟s third-party culpability defense. At most, Claussen‟s proposed testimony
21
afforded a “possible ground of suspicion” pointing to Thaddeus Taylor. It certainly did not
22
directly connect Taylor with the actual commission of any of the robberies with which petitioner
23
was charged and convicted.
24
Even assuming arguendo that the trial court‟s exclusion of Claussen‟s proposed testimony
25
was constitutional error, any such error could not have had a “substantial and injurious effect or
26
influence in determining the jury‟s verdict” under the circumstances of petitioner‟s case. Brecht
27
v. Abrahamson , 507 U.S. 619, 623 (1993) (in a federal habeas corpus proceeding, the federal
28
court must determine whether any error had a “substantial and injurious effect” on the jury‟s
41
1
verdict); Henry v. Ryan, 720 F.3d 1073, 1089 (9th Cir. 2013). See also Fry v. Pliler, 551 U.S.
2
112, 121-22 (2007) (Brecht harmless error review applies whether or not the state court
3
recognized the error and reviewed it for harmlessness). The significant evidence of petitioner‟s
4
involvement in the robberies and murder with which he was charged and convicted was
5
summarized by the California Court of Appeal and is set forth above. In light of that evidence,
6
the exclusion of the testimony from a gas station clerk in an uncharged robbery who believed the
7
robber of his station was “darker” than petitioner and that he was unable to pick petitioner as the
8
robber out of a lineup, does not lessen this court‟s confidence in the jury‟s verdict in this case.
9
Finally, petitioner argues that the trial judge‟s evidentiary ruling excluding Claussen‟s
10
potential testimony was improperly based on the judge‟s personal bias that petitioner was guilty
11
of the Arco/Valero gas station robbery. Assuming arguendo that this claim was exhausted in state
12
court and is properly before this court, it lacks merit and should be rejected. There is no evidence
13
before this court that the trial judge‟s ruling with regard to the potential Claussen testimony was
14
based on any personal bias against petitioner. The trial judge was simply considering the fact of
15
petitioner‟s prior confession to that robbery, in addition to other facts of record, to determine
16
whether introduction into evidence at petitioner‟s trial of Claussen‟s testimony would be
17
substantially more prejudicial than probative in this case.
18
19
20
21
22
23
24
25
26
As the Ninth Circuit has explained:
The Supreme Court has long established that the Due Process
Clause guarantees a criminal defendant the right to a fair and
impartial judge. See In re Murchison, 349 U.S. 133, 136, 75 S. Ct.
623, 99 L.Ed. 942 (1955). To succeed on a judicial bias claim,
however, the petitioner must “overcome a presumption of honesty
and integrity in those serving as adjudicators.” Withrow v. Larkin,
421 U.S. 35, 47, 95 S. Ct. 1456, 43 L.Ed.2d 712 (1975). In the
absence of any evidence of some extrajudicial source of bias or
partiality, neither adverse rulings nor impatient remarks are
generally sufficient to overcome the presumption of judicial
integrity, even if those remarks are “critical or disapproving of, or
even hostile to, counsel, the parties, or their cases.” Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L.Ed.2d 474
(1994); see United States v. Martin, 278 F.3d 988, 1005 (9th Cir.
2002).
27
Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008). Accordingly, in order to sustain a
28
claim of judicial bias on habeas corpus, the issue is “whether the state trial judge‟s behavior
42
1
rendered the trial so fundamentally unfair as to violate federal due process under the United States
2
Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). Petitioner has failed to
3
make that demanding showing here.3
4
For all of these reasons, petitioner is not entitled to federal habeas relief with respect to his
5
federal constitutional challenge to the trial court‟s decision to exclude Claussen‟s potential
6
testimony at petitioner‟s trial.
7
C. Petitioner’s Explanation for Admissions
8
In petitioner‟s third ground for relief, he claims that the trial court violated his rights to a
9
fair trial, to cross-examine the witnesses against him, and to due process when it ruled that his
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
In his traverse, petitioner argues, apparently for the first time, that he did not, in fact, confess to
the Valero gas station robbery and that the opinion of the California Court of Appeal, which states
that he did, is based on an unreasonable determination of the facts of his case. (ECF No. 45 at 1619.) Petitioner argues that the record demonstrates he was confused about which robbery was
being discussed and that he was most likely confessing to a different robbery when he made the
statement in question. (Id.) First, of course, arguments and claims should not be raised for the
first time in a traverse. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (a
traverse is not the proper pleading to raise additional grounds for relief); Greenwood v. Fed.
Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“we review only issues which are argued
specifically and distinctly in a party‟s opening brief”); Tyler v. Mitchell, 416 F.3d 500, 504 (6th
Cir. 2005) (“Because the penalty-phase insufficiency argument was first presented in Tyler‟s
traverse rather than in his habeas petition, it was not properly before the district court, and the
district court did not err in declining to address it.”). Presentation of new arguments and claims in
a traverse unfairly precludes the respondent from properly addressing those arguments. In any
event, petitioner has failed to demonstrate that the decision of the California Court of Appeal with
respect to this claim was based on an unreasonable determination of the facts. Under the
AEDPA, “[f]actual determinations by state courts are presumed correct absent clear and
convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a
state court and based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court proceeding, §
2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). See also Hibbler v. Benedetti, 693
F.3d 1140, 1146-47 (9th Cir. 2012) (same); Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.
2004) (same). Here, petitioner has failed to demonstrate that the state courts‟ determination that
he confessed to the Arco/Valero gas station robbery was objectively unreasonable and should be
overturned on habeas review under the applicable standard. This is particularly so since
petitioner not only admitted he robbed that gas station located on San Juan Avenue and Winding
Way (the location of the Arco/Valero), but also identified the surveillance photo of himself at that
location and claimed to have obtained $50 “at the most” in the robbery. (See Resp‟t‟s Lod. Doc.
21 (volume 1 of 2), at 78-79). In light of this record, the state court‟s determination that
petitioner confessed to the Arco/Valero robbery was not unreasonable, notwithstanding
petitioner‟s suggestion to the contrary in his traverse.
43
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trial counsel could not elicit from his girlfriend Natalie Brand an exculpatory statement he made
2
to her about the murder. (ECF No. 32 at 35.) Petitioner argues that this exculpatory statement
3
should have been admitted into evidence at his trial in order to explain incriminating statements
4
about the murder that he had previously made to Brand which were admitted. (Id. at 36.) He
5
contends that “the trial court allowed the prosecution to admit only the portions of statements by
6
Mr. Johnson that were favorable to the prosecution‟s position and exclude the portions that
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explained the statements as false confessions.” (Id. at 37.) Petitioner also argues that the trial
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court violated state law in excluding at trial evidence of his exculpatory statement to Brand. (Id.
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at 36-37.)
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1. State Court Decision
The California Court of Appeal explained the background to this claim and the reasoning
underlying its decision thereon, as follows:
Johnson faults the trial court for not admitting into evidence
pursuant to Evidence Code section 356 an exculpatory statement he
allegedly made to one of his girlfriends, Natalie Brand. He
particularly faults the court because it admitted into evidence
inculpatory statements he made to Natalie but would not admit his
exculpatory statement. We conclude the inculpatory statement was
not admissible under Evidence Code section 356 (Section 356), and
thus the trial court did not err.
A. Background information
When Natalie was interviewed by detectives for the first time, she
told them Johnson had told her the day after the murder, and before
being arrested, that he went to rob the clerk but he did not mean to
shoot and kill him. Natalie made similar statements to detectives in
a second interview. Natalie also told the detectives during the
second interview that Johnson admitted to her that he had killed the
clerk. He had gone to do the robbery because his uncle had kicked
him out of the house.
During motions in limine, defense counsel sought to introduce
pursuant to Section 356 a statement of Johnson‟s that Natalie
relayed to detectives when she was interviewed a third time, some
two months after her second interview. Allegedly at some point
after being arrested, Johnson had told Natalie that he did not do it
and that “„he was just protecting somebody.‟”
The trial court denied the motion. It ruled Johnson‟s statement was
not admissible under Section 356 because the statement “does not
come within 356 as filling out the context of it, but it still stands
alone as a self-serving out-of-court statement[.]”
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2
Prior to Natalie testifying, defense counsel reasserted that Johnson‟s
exculpatory statement to Natalie should be admitted pursuant to
Section 356. He claimed the interest of justice required the
statement to be admitted so the jury was not left with the
impression that Johnson never denied committing the murder. He
also claimed it was unfair not to admit the statement under Section
356 because Natalie would then be limited to discussing only
Johnson‟s inculpatory statements but not the exculpatory statement.
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The prosecutor argued the exculpatory statement should be
excluded because it was hearsay with no exception. He also
claimed the statement was not admissible under Section 356
because the statement, made after Johnson‟s arrest, had no
connection to explain or complete his earlier statements made to
Natalie prior to his arrest.
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The trial court again denied Johnson‟s request to introduce his
exculpatory statement due to the lack of a hearsay exception
admitting the evidence. It also denied the request on the basis that
even if the statement was not hearsay, it would not be admissible
under Evidence Code Section 356 because the exculpatory
statement was not made in the same conversation as the inculpatory
statements and because Evidence Code Section 356 did not admit
hearsay evidence.
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The court stated: “On the evidentiary issue, I am not going to
permit the elicitation from Natalie Brand of self-serving hearsay
statements from the defendant to her. There are proper ways to get
that evidence before the jury if that is the defendant‟s desire. It
simply is a situation where the defendant can in every case –
speaking now in the generic sense – say to his girlfriend or mother
or anybody else who would serve his purposes that he didn't do the
thing and therefore . . . boot strap his self-serving statement into
evidence.
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“There is a reason why hearsay evidence is excluded absent some
specific exception and, you know, those reasons that several are
valid and need to be respected.
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“I do think that there is some substance to the defendant‟s [Section]
356 argument. If it were in the context of a specific immediate
conversation in which the defendant both inculpates and exculpates
himself that your [Section] 356 argument that the exculpating
statement ought to be admitted has more merit, has more traction. I
still feel it‟s precluded under the hearsay rules, but I think it‟s a
different situation than a situation where there is a separate, discrete
communication from Natalie Brand to the defendant or from
Natalie Brand to the detectives where she simply references the
defendant‟s self-serving hearsay. That‟s not required. [Section]
356 simply does not stand for the proposition that the self-serving
hearsay comes in.”
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B. Analysis
3
Section 356 provides: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse
party; when a letter is read, the answer may be given; and when a
detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing which
is necessary to make it understood may also be given in evidence.”
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“The purpose of this section is to prevent the use of selected aspects
of a conversation, act, declaration, or writing, so as to create a
misleading impression on the subjects addressed. [Citation.] Thus,
if a party‟s oral admissions have been introduced in evidence, he
may show other portions of the same interview or conversation,
even if they are self-serving, which „have some bearing upon, or
connection with, the admission . . . in evidence.‟ [Citations.]”
(People v. Arias (1996) 13 Cal.4th 92, 156, 51 Cal. Rptr.2d 770,
913 P.2d 980.)
A court does not abuse its discretion when under Section 356 it
refuses to admit statements from a conversation or interrogation to
explain statements made in a previous distinct and separate
conversation. (See People v. Williams (2006) 40 Cal.4th 287, 319,
52 Cal. Rptr.3d 268, 148 P.3d 47 [within court‟s discretion not to
admit statements made by defendant in first interview with
detectives to explain statements made in another interview 24 hours
later]; People v. Barrick (1982) 33 Cal.3d 115, 131–132, 187 Cal.
Rptr. 716, 654 P.2d 1243 [within court‟s discretion not to admit
postarrest statements to explain prearrest statements; defendant‟s
arrest and admonishment of constitutional rights separated the
interrogation into two separate interrogations].)
The trial court did not abuse its discretion here in refusing to admit
Johnson‟s exculpatory statement under Section 356. The court
reasonably determined that Johnson‟s admissions and his
exculpatory statements to Natalie were made at different times.
Natalie first told detectives about Johnson‟s inculpatory statements
shortly after his arrest, and she stated he made them prior to his
arrest. About two months later, Natalie told detectives of Johnson‟s
exculpatory statement.
There is no evidence defendant‟s
inculpatory and exculpatory statements were part of the same
conversation. Thus, the later, postarrest exculpatory statement did
not qualify for admission under Section 356.
The statement also did not qualify for admission under Section 356
because Johnson‟s exculpatory statement was not necessary to
make his prior admissions understood. His earlier admissions to
Natalie and others were unambiguous.
Johnson claims not admitting the exculpatory statement under
Section 356 because it did not satisfy a hearsay exception was an
invalid ground for rejecting the evidence. Assuming for purposes
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1
of argument it was, we nonetheless uphold the decision on the
correct basis just discussed. “„“„It is judicial action and not judicial
reasoning which is the subject of review[.]‟”‟” (People v. Parrish
(2007) 152 Cal.App.4th 263, 271, fn. 4, 60 Cal.Rptr.3d 868,
(Parrish).)
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Johnson also claims the court‟s action created an inaccurate picture
of Johnson‟s statements by including only the inculpatory
statements and excluding the exculpatory statement. (See Parrish,
supra, 152 Cal.App.4th at pp. 272–273, 60 Cal. Rptr.3d 868.) But
the Parrish court made it clear, in allowing both exculpatory and
inculpatory statements by a codefendant in that case to be admitted,
that its ruling under Section 356 arose because the admitted
statements were made in the same interview. (Id. at pp. 269, 270,
276, 60 Cal.Rptr.3d 868.) There is no evidence here that Johnson
made his exculpatory statement to Natalie during the same
conversation they had prior to his arrest.
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The trial court thus did not abuse its discretion in denying
Johnson‟s request under Section 356.
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Johnson, 183 Cal.App.4th at 285-88.
2. Petitioner’s Arguments in the Traverse
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In his traverse, petitioner argues for the first time that the California Court of Appeal‟s
15
decision rejecting his arguments on this issue was based on an unreasonable determination of the
16
facts. Specifically, he points to the state appellate court‟s statement that his exculpatory comment
17
to Brand
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did not qualify for admission under Section 356 because
[Petitioner‟s] exculpatory statement was not necessary to make his
prior admissions understood. His earlier admissions to Natalie and
others were unambiguous.
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(ECF No. 45 at 22.) Petitioner argues that, contrary to the California Court of Appeals‟
22
characterization of his statements, the “admissions” he made during police interrogations were
23
“ambiguous” and “included indications that he was willing to accept responsibility for crimes he
24
did not commit,” in order to protect his cousin Thaddeus Taylor from being prosecuted for the
25
robberies. (Id.)
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In support of this argument, petitioner cites a portion of the transcript of his police
27
interview wherein he told a police detective that he didn‟t want to get Thaddeus “in trouble.” A
28
review of the state court record reflects that after petitioner admitted to committing at least five
47
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specific robberies in the Sacramento area, he made the following statements to police:
3
DET. CABRAL: Let‟s uh – are there any other – before we go any
further, there – are there any other robberies? You‟re saying about
five. Have you done any other ones out of town?
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PETITIONER: No.
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DET. CABRAL: Okay.
6
PETITIONER: Not that I can remember.
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DET. CABRAL: Okay.
8
DET. KOLB: Um –
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DET. CABRAL: You‟re – you‟re, uh, Beretta – you don‟t want to
get Thaddeus in trouble; do ya?
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PETITIONER: What do you mean by that?
DET. CABRAL: Well, the gun.
PETITIONER: Why is Thaddeus getting in trouble?
DET. CABRAL: It‟s in his room.
PETITIONER: Is that where?
DET. CABRAL: Um-hum.
PETITIONER: (Inaudible).
DET. CABRAL: In the speaker. Is that where it‟s at?
PETITIONER: If you want to go get it, I guess.
20
DET. CABRAL: No. I – I mean you seem like you‟re being up
front, and I don‟t want to play games. Is that where you left it?
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PETITIONER: No.
22
DET. CABRAL:
speaker?
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Who put it there?
Who put the gun in the
PETITIONER: I don‟t know.
DET. CABRAL: Was it you or Thaddeus? (Inaudible) –
PETITIONER: (Unintelligible) it‟s me because I don‟t want to get
him in trouble.
DET. CABRAL: No. If it was – if it – you know, if it was him, it
was you or Uncle Fred, you‟re the only three that live in that house.
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PETITIONER: No, no. It was me.
2
DET. CABRAL: What‟d you put it in? Describe what you put it in
then.
3
J. JOHNSON: A blue beanie.
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DET. CABRAL: What else?
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PETITIONER: Bullets.
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DET. CABRAL: What else?
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PETITIONER: Hollow tips.
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DET. CABRAL: What else?
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PETITIONER: That‟s it.
DET. CABRAL: I‟m talking about something out –
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PETITIONER: I wrapped it up.
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DET. CABRAL: Did you wipe it down?
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PETITIONER: No. I just wrapped it up.
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(Resp‟t‟s Lod. Doc. 21 (volume 1) at 46-47.)
Petitioner states that the police interview during which he made the statements related
17
above occurred shortly before he told Natalie that he had committed the murder. He argues that
18
the close proximity in time between his police interview and his incriminating statement to
19
Natalie indicates that he was still trying to protect his cousin Thaddeus when he made this false
20
statement. (ECF No. 45 at 23.) Petitioner also appears to be arguing that the statements he made
21
to police, set forth above, render his incriminating statements to his girlfriend Natalie Brand
22
“ambiguous” because he was at that time still trying to protect Thaddeus Taylor. Petitioner
23
contends that his statements to Brand, considered in light of his statements he made to the police,
24
were not “reliable and unambiguous.” (Id. at 23.) Therefore, according to petitioner, the trial
25
court should have allowed his later statement to Brand, that he did not commit the murder and
26
was just protecting somebody when he said he did, to be admitted into evidence under California
27
Evidence Code § 356 in order to clarify that he initially lied to Brand in order to protect his
28
cousin, Thaddeus Taylor.
Petitioner also argues that his later statement to Brand that he was
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“just protecting somebody” is consistent with his earlier statement to police that he didn‟t want to
3
get Thaddeus in trouble. (Id. at 22.)
4
5
3. Applicable Law
As explained above, criminal defendants have a constitutional right, implicit in the Sixth
6
Amendment, to present a defense; this right is “a fundamental element of due process of law.”
7
Washington v. Texas, 388 U.S. 14, 19 (1967). However, the constitutional right to present a
8
defense is not absolute. Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). “[A] defendant
9
does not have an absolute right to present evidence, no matter how minimal its significance or
10
doubtful its source.” Jackson v. Nevada, 688 F.3d 1091, 1096 (9th Cir. 2012), reversed on other
11
grounds by Nevada v. Jackson, ___ U.S. ___, 133 S. Ct. 1990 (2013). “Even relevant and reliable
12
evidence can be excluded when the state interest is strong.” Alcala v. Woodford, 334 F.3d 862,
13
877 (9th Cir. 2003) (quoting Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
14
A state law justification for exclusion of evidence does not abridge a criminal defendant‟s
15
right to present a defense unless it is “arbitrary or disproportionate” and “infringe[s] upon a
16
weighty interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308 (1998). See also
17
Crane, 476 U.S. at 689-91 (discussing the tension between the discretion of state courts to
18
exclude evidence at trial and the federal constitutional right to “present a complete defense”);
19
Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002); Perry, 713 F.2d at 1451 (While “[t]he
20
right to present a defense is fundamental,” “the state‟s legitimate interest in reliable and efficient
21
trials is also compelling.”). Further, a criminal defendant “does not have an unfettered right to
22
offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of
23
evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S.
24
400, 410 (1988)). “A habeas petitioner bears a heavy burden in showing a due process violation
25
based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).
26
The United States Supreme Court has acknowledged a “traditional reluctance to impose
27
constitutional restraints on ordinary evidentiary rulings by state trial courts.” Crane, 476 U.S. at
28
689. The Supreme Court has further made clear that federal habeas power does not allow the
50
1
granting of relief on the basis of a belief that the state trial court incorrectly interpreted the state
2
evidence code in ruling on the admissibility of evidence. Estelle, 502 U.S. at 72; see also Briceno
3
v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009). A petitioner seeking habeas relief from an
4
allegedly erroneous evidentiary ruling bears the burden of establishing that the evidentiary error
5
deprived the petitioner of due process because it was so pervasive that it denied the petitioner a
6
fundamentally fair trial. Brecht, 507 U.S. at 637; see also Duncan v. Ornoski, 528 F.3d 1222,
7
1244 n. 10 (9th Cir. 2008); Larson, 515 F.3d at 1065.
Petitioner‟s claim, if any, that the trial court erred in its application of the California
8
9
Evidence Code in denying his request to admit his exculpatory remark to Natalie Brand is not
10
cognizable in this federal habeas corpus proceeding. Thus, the question whether petitioner‟s
11
admissions to his girlfriend Natalie Brand were ambiguous, therefore requiring that they be
12
explained by his later statements to Brand pursuant to California Evidence Code § 356, is not
13
properly before this court. Petitioner has failed to demonstrate that the state courts‟ application of
14
Evidence Code § 356 was erroneous, arbitrary, or capricious, or that it rendered his trial
15
fundamentally unfair in violation of the Due Process Clause. Lewis v. Jeffers, 497 U.S. 764, 780
16
(1990).
17
In any event, petitioner‟s argument advanced in his traverse that his statements somehow
18
rendered ambiguous his incriminating admissions to police detectives and/or to Brand is
19
unavailing. The record reflects that during petitioner‟s interrogation it was a police officer, not
20
petitioner, who suggested that petitioner didn‟t want to get Thaddeus Taylor “in trouble.” (CT at
21
46.) Petitioner responded to the officer‟s suggestion by stating, “What do you mean by that?”
22
(Id.) Although petitioner later responded that he hid the Beretta pistol in Thaddeus‟ room
23
because “I don‟t want to get him in trouble,” he then immediately clarified that he had, indeed,
24
hidden the gun there himself. (Id.) This colloquy between petitioner and the police falls far short
25
of rendering petitioner‟s later admission to Brand that he killed the store clerk “ambiguous” or
26
untrustworthy.
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Nor is petitioner entitled to habeas relief on a federal due process claim in connection with
this argument. As explained above, the Ninth Circuit Court of Appeals for has observed that the
51
1
United States Supreme Court has not “squarely addressed” whether a state court‟s exercise of its
2
discretion to exclude testimony violates a criminal defendant‟s right to present relevant evidence.
3
Moses, 555 F.3d at 758-59; Brown, 644 F.3d at 983. Accordingly, the decision of the California
4
Court of Appeal that the trial court‟s discretionary evidentiary ruling did not violate the federal
5
constitution cannot be contrary to or an unreasonable application of clearly established United
6
States Supreme Court precedent and may not be set aside. Id. See also Knowles, 556 U.S. at
7
112; Wright, 552 U.S. at 126.
8
Finally, given the significant evidence that petitioner committed the Chetty murder, the
9
exclusion from evidence at his trial of petitioner‟s later, self-serving statement to Natalie Brand
10
that he did not commit the murder but was merely “protecting somebody” when he previously
11
told her he had indeed committed the murder, could not have had a “substantial and injurious
12
effect or influence in determining the jury's verdict” under the circumstances of this case. Brecht,
13
507 U.S. at 623.
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For all of these reasons, petitioner is not entitled to federal habeas relief with respect to
this due process claim.
16
D. Cumulative Effect of Errors by Trial Court
17
In his final claim for relief, petitioner argues that the cumulative effect of the trial court‟s
18
erroneous rulings violated his “federal constitutional rights under the Fifth, Sixth and 14th
19
Amendments.” (ECF No. 45 at 24.) Petitioner argues that the trial court‟s rulings constituted
20
“arbitrary” and “disproportionate” applications of state rules of evidence. (ECF No. 32 at 39.)
21
The state appellate court rejected that contention on direct appeal, stating:
22
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Johnson claims the court‟s errors discussed above in parts II and III
were cumulative constitutional errors. Because we have concluded
they were not error, they a fortiori do not constitute cumulative
error.
Johnson, 183 Cal.App.4th at 288.
The cumulative error doctrine in habeas recognizes that, “even if no single error were
27
prejudicial, where there are several substantial errors, „their cumulative effect may nevertheless
28
be so prejudicial as to require reversal.‟” Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002)
52
1
(quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996)). See also Cunningham v.
2
Wong, 704 F.3d 1143, 1165 (9th Cir. 2013). However, where there is no single constitutional
3
error existing, nothing can accumulate to the level of a constitutional violation. See Fairbank v.
4
Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011) (“[B]ecause we hold that none of Fairbank‟s claims
5
rise to the level of constitutional error, „there is nothing to accumulate to a level of a
6
constitutional violation.‟”) (citation omitted); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011)
7
(“Because we conclude that no error of constitutional magnitude occurred, no cumulative
8
prejudice is possible.”). “The fundamental question in determining whether the combined effect
9
of trial errors violated a defendant‟s due process rights is whether the errors rendered the criminal
10
defense „far less persuasive,‟ Chambers, 410 U.S. at 294, and thereby had a „substantial and
11
injurious effect or influence‟ on the jury‟s verdict.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir.
12
2007) (quoting Brecht, 507 U.S. at 637).
13
This court has addressed each of petitioner‟s claims of error above and has concluded that
14
no error of constitutional magnitude occurred in connection with his trial. There is also no
15
evidence before this court that an accumulation of errors rendered petitioner‟s trial fundamentally
16
unfair. Accordingly, petitioner is not entitled to federal habeas relief on his claim that cumulative
17
error resulted in a violation of his right to due process.
18
IV. Conclusion
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20
For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner‟s
application for a writ of habeas corpus be denied.
21
These findings and recommendations are submitted to the United States District Judge
22
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
23
after being served with these findings and recommendations, any party may file written
24
objections with the court and serve a copy on all parties. Such a document should be captioned
25
“Objections to Magistrate Judge‟s Findings and Recommendations.” Any reply to the objections
26
shall be served and filed within fourteen days after service of the objections. Failure to file
27
objections within the specified time may waive the right to appeal the District Court‟s order.
28
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991). In his objections petitioner may address whether a certificate of appealability should issue
2
in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
3
Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
4
enters a final order adverse to the applicant).
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Dated: April 7, 2015
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