Carpenter v. Brown, et al

Filing 162

ORDER DENYING GROUP III CLAIMS 4, 15C, 16, 18, 19, 20, 21, 26 and 27. Signed by Judge Maxine M. Chesney on August 26, 2013. (mmcsecS, COURT STAFF) (Filed on 8/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID J. CARPENTER,

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For the Northern District of California

United States District Court

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Petitioner,

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NO. C 00-3706 MMC
ORDER DENYING GROUP III
CLAIMS 4, 15C, 16, 18, 19, 20,
21, 26 and 27

v.
KEVIN CHAPPELL, Warden of
California State Prison at San Quentin,

DEATH PENALTY CASE
Respondent.

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Introduction

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The instant case arises from petitioner’s conviction and death sentence for murdering five

20 people in Marin County and raping or attempting to rape three of them. His crimes occurred
21 between October 11, 1980, and November 28, 1980. Due to pre-trial publicity, the case was tried in
22 San Diego County. On November 29, 1999, the California Supreme Court affirmed petitioner’s
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23 conviction and death sentence. See People v. Carpenter, 21 Cal. 4th 1016 (1999). On October 2,

24 2000, the United States Supreme Court denied a petition for certiorari. See Carpenter v. California,
25 531 U.S. 838 (2000). Prior to affirmance of his conviction and sentence on direct review, petitioner
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Petitioner was separately convicted and sentenced to death for, among other things,

27 murdering two people and attempting to murder a third in Santa Cruz County between March and
May 1981. The Santa Cruz County charges, also due to pre-trial publicity, were tried in Los

28 Angeles County. Petitioner’s conviction and death sentence based on that case is the subject of a
separate federal habeas petition pending before this Court. See Carpenter v. Woodford, C 98-2444
MMC, (“Carpenter I”).

1 filed two separate state habeas petitions. The first was filed in the trial court on September 28, 1988,
2 and was based on allegations of juror misconduct. The trial court granted the petition and ordered a
3 new trial, but the California Supreme Court subsequently reversed the new trial order and denied the
4 petition. See In re Carpenter, 9 Cal.4th 634 (1995). The second was filed in the California Supreme
5 Court on November 1, 1999, and was denied on January 13, 2000. See In re Carpenter, No.
6 S083246.
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On November 4, 2002, petitioner filed a petition for a writ of habeas corpus in federal district

8 court. On November 26, 2002, this Court granted petitioner’s motion to hold the proceedings in
9 abeyance while he filed a second state habeas petition in the California Supreme Court. On

11 December 27, 2002, petitioner filed his First Amended Petition for Writ of Habeas Corpus (“First
For the Northern District of California

United States District Court

10 December 18, 2002, the California Supreme Court denied the second state petition, and on

12 Amended Petition”) in federal district court.
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Respondent subsequently filed a motion to dismiss the First Amended Petition, in which

14 respondent primarily asserted various procedural grounds that, respondent argued, required
15 dismissal of at least certain portions of the First Amended Petition. Thereafter, in a series of orders,
16 this Court addressed all of those procedural issues.
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In 2008, based on allegations in the First Amended Petition and the applicable law, the Court

18 issued an order for a timely determination of petitioner’s competency, pursuant to Rohan ex, rel.
19 Gates v. Woodford, 334 F. 3d 803 (9th Cir. 2003). See id. at 817 (holding petitioners have “statutory
20 right to competence in [their] habeas proceedings”). Based on the case record and the examination
21 report of stipulated expert Dr. Robert Roesch, this Court found petitioner competent to pursue his
22 habeas claims.2
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The parties thereafter met and conferred, and agreed to a briefing schedule, subsequently

24 amended by this Court, by which the remainder of petitioner’s claims were to be addressed. The
25 schedule also separated the claims into nine separate groups. This Order addresses Claims 4, 15C,
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Petitioner appealed certain of the Court’s orders regarding the competency determination;

27 on July 31, 2009, the Ninth Circuit Court of Appeals dismissed and denied the appeal in an

unpublished memorandum. See Carpenter v. Ayers, Nos. 08-99019 & 08-99020, 2009 WL

28 2387288. (9th Cir. 2009).

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1 16, 18 19, 20, 21, 26 and 27 in Group III. For the following reasons, all of said claims will be
2 denied.
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Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court

5 may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in
6 state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was
7 contrary to, or involved an unreasonable application of, clearly established Federal law, as
8 determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
9 on an unreasonable determination of the facts in light of the evidence presented in the State court

11 factual findings, and the presumption of correctness may only be rebutted by clear and convincing
For the Northern District of California

United States District Court

10 proceeding.” 28 U.S.C § 2254(d).3 A federal court must presume the correctness of the state court’s

12 evidence. 28 U.S.C. § 2254(e)(1).
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The “contrary to” and “unreasonable application” clauses of section 2254(d) have separate

14 and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court’s decision is
15 “contrary to” clearly established United States Supreme Court law if it fails to apply the correct
16 controlling authority or if it applies the controlling authority to a case involving facts materially
17 indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at
18 413-414. A decision is an “unreasonable application” of United States Supreme Court law if “the
19 state court identifies the correct governing legal principle . . . but unreasonably applies that principle
20 to the facts of the prisoner’s case.” Id. at 414. A federal court must bear in mind, however, that “‘an
21 unreasonable application of federal law is different from an incorrect application of federal law.’”
22 Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in
23 original). “A state court’s determination that a claim lacks merit precludes federal habeas relief so
24 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at
25 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)).
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The parties agree that AEDPA applies to this matter.
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In that regard, “a federal habeas court may not issue the writ simply because the court

2 concludes in its independent judgment that the relevant state-court decision applied clearly
3 established federal law erroneously or incorrectly[;] [r]ather, that application must be objectively
4 unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). “While the ‘objectively
5 unreasonable’ standard is not self-explanatory, at a minimum it denotes a greater degree of
6 deference to the state courts” than previously had been accorded them. Clark v. Murphy, 331 F.3d
7 1062, 1068 (9th Cir. 2003).
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The holdings of the Supreme Court at the time of the state court decision are the only

9 definitive source of clearly established federal law under AEDPA. See Williams, 529 U.S. at 412.

11 decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings
For the Northern District of California

United States District Court

10 While circuit law may be “persuasive authority” for purposes of determining whether a state court

12 are binding on the state courts and only those holdings need be reasonably applied. See Clark, 331
13 F.3d at 1070. A state court’s decision need not cite to and a state court need not be aware of federal
14 law to pass muster under AEDPA; rather, “so long as neither the reasoning nor the result of the
15 state-court decision contradicts [federal law],” the decision may be upheld. Early v. Packer, 537
16 U.S. 3, 8 (2002).
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When a federal court is presented with a state court decision that is unaccompanied by a

18 rationale for its conclusions, the court has no basis other than the record “for knowing whether the
19 state court correctly identified the governing legal principle or was extending the principle into a
20 new context.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such situations, federal courts
21 must conduct an independent review of the record to determine whether the state court decision is
22 objectively unreasonable. Id. Specifically, “where a state court’s decision is unaccompanied by an
23 explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable
24 basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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Moreover, even if a petitioner meets the requirements of section 2254(d), habeas relief is

26 warranted only if the constitutional error at issue had a substantial and injurious effect or influence
27 in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this
28 standard, petitioners “may obtain plenary review of their constitutional claims, but they are not
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1 entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
2 prejudice.’” Brecht, 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 439 (1986)).
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Analysis

4 I.

Claim 4: Multiple Prosecutions

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In Claim 4, petitioner contends the state’s decision to prosecute him in two cases, brought in

6 two different counties and using evidence from each such case in the other, violated his right to due
7 process. On direct appeal, the California Supreme Court denied this claim in a reasoned opinion, as
8 follows:
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For the Northern District of California

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1.

Alleged Impermissible Multiple Prosecutions

In Carpenter II, defendant argued that the two Santa Cruz murders should
have been tried separately (Carpenter II, supra, 15 Cal. 4th at ¶. 361-362.) Now he
argues that all of the Marin County and Santa Cruz County crimes should have been
tried together. He claims that trying him separately for the crimes committed in each
county violated Penal Code section 654 and “his rights to due process, and to a
reliable penalty determination.” Just as we disagreed that the Santa Cruz County
crimes had to be tried piecemeal, so, too, do we disagree that the all the crimes in
both counties had to be tried together.

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As pertinent, Penal Code section 654 provides that when an “act or omission .
. . is punishable in different ways by different provisions of law,” an “acquittal or
conviction and sentence under any one bars a prosecution for the same act or
omission under any other.” [Footnote omitted]. Defendant argues that this provision
bars prosecution of the Marin County crimes after he was convicted of the Santa Cruz
County crimes. He relies principally on Kellett v. Superior Court (1966) 63 Cal. 2d
822 [parallel citation omitted]. In Kellett, the defendant was standing on a public
sidewalk with a pistol in his hand. He was charged with and pleaded guilty to a
misdemeanor charge of exhibiting a firearm in a threatening manner. We held that
this conviction prohibited a later prosecution for the felony of possessing a
concealable weapon by a felon arising out of the same facts. Kellett bears no
similarity to this case. Whatever the scope of that decision, the murder or separate
victims on separate days in separate counties is not a single act or even a “course of
conduct” (id. at p. 827) requiring a single prosecution. . . .
Penal Code section 790 generally places venue for a murder charge in the
county (1) where the fatal injury was inflicted, (2) where the victim died, or (3) where
the body was found. Santa Cruz was the site for all three of the murders charged in
that county, Marin County the site for all three of the murders charged in that county.
Defendant waived his right to be tried in those counties when he successfully moved
to change venue. But no authority permitted, and none compels, murders committed
in different counties to be tried together. . . .
Because evidence of some of the crimes of the other county was presented in
each trial, defendant contends the successive prosecution violated due process. It did
not. (Ciucci v. Illinois (1958) 356 U.S. 571 [parallel citations omitted].) . . . We also

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disagree that trying both sets of crimes separately resulted in an unreliable penalty
determination.4
Carpenter, 21 Cal. 4th at 1038-1039.

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Petitioner has not cited to any clearly established federal law demonstrating the state court’s

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denial of this claim was objectively unreasonable, nor has he shown such denial relied on an

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unreasonable determination of the facts. Significantly, petitioner can point to no clearly established

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federal law holding, or even suggesting, that multiple prosecutions for multiple murders violates due

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process.

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As the California Supreme Court correctly stated, controlling Supreme Court authority

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regarding this issue is Ciucci v. Illinois, 356 U.S. 571 (1958). Defendant Ciucci killed his wife and
three children and left them in a burning building; he was subsequently prosecuted for the deaths of

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For the Northern District of California

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his wife and two of the children in three separate trials. In each trial, the prosecution introduced

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evidence from all four of the deaths. Each trial resulted in a different sentence: 20 years in prison,

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45 years in prison, and death. Ciucci argued on appeal that the multiple trials violated his due

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process rights. Ciucci, 356 U.S. at 572.

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The Supreme Court rejected Ciucci’s argument, holding “[t]he State was constitutionally

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entitled to prosecute these individual offenses singly at separate trials, and to utilize therein all

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relevant evidence.” Id. at 573. The same is true here, and petitioner has not shown such prosecution

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in two trials for multiple crimes was, in any manner, fundamentally unfair. Id.

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Petitioner argues the Supreme Court, by a footnote in United States v. Ewell, 383 U.S. 116,

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125 n.9 (1996), limited Ciucci to its facts. Petitioner is incorrect. In Ewell, the Court rejected a

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claim of double jeopardy, and in so doing noted that the issue therein was to be distinguished from

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that in Ciucci, which “involved only the question whether the Fourteenth Amendment prevents a

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state from bringing successive prosecutions against a defendant where each prosecution alleges the

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same statutory offense and the same general transaction but names different victims.” Id. at 125 n.9.

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Defendant does not specifically argue the separate prosecutions violated the prohibition
against double jeopardy. That argument would also lack merit. “‘[T]he murder of two persons,
even by the same act, constitutes two offenses, for each of which a separate prosecution will lie, and
. . , a conviction or acquittal in one case does not bar a prosecution in the other.’” (People v. McLain,
supra, 46 Cal. 3d at pp.120-121, quoting People v. Majors (1884) 65 Cal. 138, 146-147.)
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1 The Ewell Court did not otherwise mention nor rely on Ciucci, and there is nothing in the footnote
2 limiting Ciucci to its particular facts or suggesting that it is not to be used as precedent. Indeed, as
3 respondent correctly points out, Ciucci did not even address double jeopardy, which was at issue in
4 Ewell. Accordingly, petitioner’s reliance on Ewell is misplaced.
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In sum, as petitioner can cite to no federal precedent compelling the result he seeks, he

6 cannot demonstrate the state court’s decision denying his claim was unreasonable, and,
7 consequently, his claim will be denied.
8 II.

Claim 15C: Cross-Examination of Tina Vance

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In Claim 15C, petitioner asserts it was constitutional error for the trial court to limit his

11 reasoned opinion on direct appeal. Under 28 U.S.C. § 2254(e)(1), the factual findings made by the
For the Northern District of California

United States District Court

10 cross-examination of Tina Vance. This claim was denied by the California Supreme Court in a

12 California Supreme Court, set forth below, are presumptively correct.
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1.

Evidentiary Rulings as to One Witness

A witness [Tina Vance] testified on direct examination that one weekend in
September or October 1980, when she was 14 years old, she went to Mollie Purnell’s
home in Modesto with her boyfriend. Defendant showed her and the boyfriend a “big
handgun” and talked about “burglaries and thieving and things like that.” She
understood defendant “to be a professional thief, that’s what he said, and a burglar
and things like that.” The next day she went with defendant to San Francisco. On the
way, they stopped at a park. Defendant showed her what he called his “thief kit,” a
suitcase containing another gun, woven wire like the kind used to hang pictures, and
strips of nylon or cloth. Referring to the nylon or cloth, defendant said, “This is what
I use to gag people with.” Referring to the wire, he said, “This is what I use to tie
them up with.” The witness testified that the gun she saw at the park was smaller
than the one she saw earlier that weekend. The second gun looked like the gun used
in the killings. The first time she told anyone about seeing two different guns was
two days before her testimony at this 1988 trial.

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[D]efendant argues the court improperly limited his cross-examination of the
witness in two respects. First, defendant sought to cross-examine her about her
probationary status in a juvenile matter at the time she first spoke with law
enforcement about the case. The court ruled that defense counsel could not ask her
whether she was on probation but could ask her whether she had a juvenile case, and
could “develop with her whether she thought in any aspect of that juvenile case she
was going to get any benefit in this case or anybody made any promise to her about
the facts underlying her juvenile adjudication, in which she allegedly used a gun. The
court ruled that the defense could ask the witness about her familiarity with guns, but
it did not allow the defense to go into the details of the juvenile case. On crossexamination, the witness denied knowing much about guns. The defense again
sought to go into the details of the facts underlying the juvenile matter. The court
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ruled her testimony did not “open up the door.” It found the underlying facts were not
“probative with respect to . . . what has been offered by the prosecution,” and that “it
just would be cumulative and totally a waste of time for [the defense] to probe into
. . . the underlying circumstances of her juvenile case.” We find no error.

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“[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness,
and thereby, to expose to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.” (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 680 [parallel citations, internal quotation, and citation omitted].
However, not every restriction on a defendant’s desired method of cross-examination
is a constitutional violation. Within the confines of the confrontation clause, the trial
court retains wide latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra,
475 U.S. at ¶. 678-679 . . . .) California law is in accord. (See People v. Belmontes
(1988) 45 Cal. 3d 744, 780 [parallel citations omitted].) Thus, unless a defendant can
show that the prohibited cross-examination would have produced ‘a significantly
different impression of [the witnesses’] credibility’ (Van Arsdall, supra 475 U.S. at p.
680), the trial court’s exercise of its discretion in this regard does not violate the Sixth
Amendment.” (People v. Frye (1998) 18 Cal. 4th 894, 946 [parallel citations
omitted].)

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As he did at trial, defendant relies heavily on Davis v. Alaska (1974) 415 U.S.
308 [parallel citations omitted]. In Davis, a “crucial witness for the prosecution” was
on juvenile probation both at the time of the events about which he testified and at
trial. (Id. at 310-311.) Because of state rules requiring confidentiality of juvenile
adjudications, the trial court refused to allow any cross-examination about the
witness’s juvenile history. The court found the blanket prohibition violated the
defendant’s right to confront witnesses. However, that decision does not require
courts to permit any cross-examination the defense may wish regarding juvenile
proceedings. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [parallel
citations omitted].) Here, the trial court considered the state of the evidence and Davis
v. Alaska, supra, 415 U.S. 308. It permitted the defense to inquire into whether the
witness had a juvenile case and whether she received any promises or expected any
benefits regarding that matter. It did not preclude the defense from presenting
evidence she did receive any promises or benefits; the defense did not claim it had any
such evidence. Moreover, the defense did not claim, and the record does not indicate,
that the witness was on probation when she testified several years later. The record
does not establish the prohibited cross-examination would have produced “a
significantly different impression of [the witness’s] credibility . . . .” (Delaware v. Van
Arsdall, supra, 475 U.S. at p. 680 [parallel citation omitted].) Accordingly, we find no
abuse of discretion.
We also find the court did not abuse its discretion in not permitting the defense
to probe into the facts underlying the juvenile adjudication. Defendant argues that
because the facts allegedly involved the witness’s use of a gun, the evidence showed
she was familiar with guns, contrary to her trial testimony. Her familiarity with guns
was of marginal relevance. Defendant argues this familiarity shows she could have
fabricated her testimony about seeing the two guns. Her testimony, however, was not
particularly technical; she would not have needed great knowledge about guns to
invent it. Courts may “prevent criminal trials from degenerating into nitpicking wars
of attrition over collateral credibility issues.” (People v. Wheeler (1992) 4 Cal. 4th
284, 296.) . . .

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Moreover, rather than being “crucial” (Davis v. Alaska, supra, 415 U.S. at p.
310), this witness was minor in the context of the entire case. Even assuming the court
permitted the prosecution to elicit too much information, and the defense too little, we
would find the error harmless under any standard.
Carpenter, 21 Cal. 4th at 1046-1052.

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Petitioner contends his rights under the Confrontation Clause were violated by the trial court’s

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limitations on his cross-examination of Tina Vance. The Confrontation Clause provides that, in

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criminal cases, the accused has the right to “be confronted with the witnesses against him.” U.S.

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Const. Amend. VI. This right includes the opportunity to cross-examine witnesses. Davis v. Alaska,

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415 U.S. 308, 315-316 (1974) (noting “a primary interest” secured by Confrontation Clause is right

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of cross-examination) (internal quotation and citation omitted).
Limits on cross-examination, however, are permitted. The Confrontation Clause guarantees

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For the Northern District of California

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an opportunity for effective cross-examination, not cross-examination that is effective in whatever

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way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

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(per curiam). Accordingly, "trial judges retain wide latitude insofar as the Confrontation Clause is

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concerned to impose reasonable limits on such cross-examinations based on concerns about, among

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other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is

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repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A

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limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant

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testimony, prejudices the defendant, and denies the jury sufficient information to appraise the biases

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and motivations of the witnesses. United States v. Urena, 659 F. 3d 903, 907-908 (9th Cir. 2011);

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Fenenbock v. Director of Corrections, 692 F.3d 910, 919 (9th Cir. 2012) (finding trial court violates

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Confrontation Clause only when it prevents defendant from examining “a particular and relevant

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topic”).

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Petitioner has not cited to any clearly established federal law demonstrating the state court’s

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denial of this claim was objectively unreasonable, nor has he shown the state court’s denial of the

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claim relied on an unreasonable determination of the facts. The state court’s reasoned opinion

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demonstrates, and this Court’s review of the record confirms, that the trial court’s limitation on cross-

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examination of Vance was reasonable. In contrast to the situation in Davis, where the trial

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1 court issued a blanket prohibition against any cross-examination regarding the witness’ juvenile
2 record, the trial court in petitioner’s case did allow petitioner’s attorney to inquire into whether the
3 witness had a juvenile case and whether she received any promises or expected any benefits
4 regarding that matter. Further, the trial court did not preclude the defense from presenting evidence
5 that Vance did receive promises or benefits. See Carpenter, 21 Cal. 4th at 1051. Additionally, the
6 witness in Davis was a key witness, see 415 U.S. at 310, while Vance was a “minor [witness] in the
7 context of the entire case,” Carpenter, 21 Cal. 4th at 1051. As the California Supreme Court
8 reasonably found, additional cross-examination would not have produced “‘a significantly different
9 impression of [the witness’s] credibility. . . .,’” Carpenter, 21 Cal. 4th at 1051 (citing Van Arsdall,

11 examination constituted error.
For the Northern District of California

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10 475 U.S. at 680), and petitioner thus cannot demonstrate the trial court’s decision to limit cross-

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Morever, Confrontation Clause claims are subject to harmless error analysis. United States v.

13 Nielsen, 371 F.3d 574, 581 (9th Cir. 2004). For purposes of federal habeas corpus review, the
14 standard applicable to violations of the Confrontation Clause is whether the inadmissible evidence
15 had an actual and prejudicial effect upon the jury. See Hernandez v. Small, 282 F.3d 1132, 1144 (9th
16 Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Here, even if petitioner had
17 shown that the trial court’s rulings were in error, he has not demonstrated he suffered any prejudice.
18 Petitioner was allowed to impeach Vance, whose testimony was not crucial, let alone dispositive;
19 multiple additional witnesses connected petitioner to the murder weapon and identified him as the
20 shooter.
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Accordingly, this claim will be denied.

22 III.

Claim 16: Admission of Certain Statements by Petitioner

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In Claim 16, petitioner contends the trial court admitted several items of allegedly irrelevant

24 and prejudicial evidence, and thereby violated his due process rights. The California Supreme Court
25 denied this claim in a reasoned opinion on direct appeal, as follows:
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2.

Other Evidentiary Rulings

Defendant contends the court made several other erroneous evidentiary rulings.
One witness testified that in February 1981, defendant said he carried a gun in his van.
The witness never saw the gun. Another witness testified that in February
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or March 1981, defendant showed her a gun that “looks like” the murder weapon. The
court ruled both items of evidence admissible over objection. We find no error.
Although the witnesses did not establish the gun necessarily was the murder weapon,
it might have been. Unlike People v. Riser, supra, 47 Cal. 2d at page 577, this
evidence did not merely show that defendant was a person who possesses guns, but
showed he possessed a gun that might have been the murder weapon after the first and
before the last of the killings. The evidence was thus relevant and admissible as
circumstantial evidence that he committed the charged offenses. (People v. Neely,
supra 6 Cal. 4th at p. 896.)
Another witness testified over objection that around late April or early May
1981, defendant told her “there is really nothing like the power of a gun to achieve the
ends you want”; “it was really the ultimate challenge to get away with murder”; and
rape “is really an ultimate achievement, to do something like that.” The court
excluded any statements about “robberies.” Defendant contends the evidence was
inadmissible character evidence under Evidence Code section 1101 and should have
been excluded as unduly prejudicial under Evidence Code section 352. The Attorney
General argues, first, that the claims are not cognizable on appeal because defendant
failed to object on these grounds at trial. We disagree. Although he did not
specifically cite Evidence Code section 1101 in objecting to these statements (he did
in making similar objections to other items of evidence), he did object on the ground
that the statements merely showed he was a “criminal” and a “bad person.” Under the
circumstances, the specific nature of the objection was sufficiently clear to preserve
the issue.

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The contention, however, lacks merit. Evidence that defendant talked about
using guns and committing murder and rape soon after the rapes and murders in this
case, all involving the use of a gun, was circumstantial evidence that he committed the
charged crimes. Unlike People v. Guerrero, supra, 16 Cal. 3d 719, which defendant
cites, where the prosecution presented evidence the defendant committed an
uncharged crime, the prosecution here did not suggest these statements showed
defendant committed crimes other than those of this case; rather, these statements
were admitted to show he committed these crimes. Defendant argues the statements
were merely “part of a philosophical discussion about crime.” If so, they were of little
relevance. But, from the evidence as a whole, the jury could reasonably find they
were a very general relevance to the charged crimes, which made them relevant to
whether he committed them.
Defendant also contends the record fails to show the court considered the
prejudicial effect of the evidence. However, a court need not expressly state for the
record it engages in a weighing process every time it makes a ruling. (People v.
Crittenden (1994) 9 Cal. 4th 83, 135 [parallel citations omitted].) The record as a
whole shows the court was well aware of, and consistently performed, its duty under
Evidence Code section 352 to balance the probative value of evidence against any
prejudicial effect.
A defense witness testified on direct examination that he was defendant’s
employer at a trade school in Hayward. They “became friends.” The witness also
operated another business called “Moon Tide” at the same location. He testified that
time sheets indicated defendant was at work until 2:15 p.m. the day another defense
witness said she saw a man who might have been the gunman near the scene of the
Hansen/Haertle shooting. On cross-examination, the witness said defendant was also
involved in the Moon Tide business. Over objection, the witness testified defendant
invested about $2000 into the business. The prosecution was allowed to introduce into
evidence a letter dated November 16, 1980, that defendant wrote to the witness
11

1
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3

demanding repayment of this money by November 30, 1980. The letter threatened
after that date to “turn[] on the vigorish clock,” i.e., to charge the amount of interest
“used in the loan sharking business,” which would make the witness owe about
$10,000 by December 1. The amount owed would “increase rapidly” after that. The
letter said, “either pay me now or pay me a lot more later,” and concluded, “Your old
pal, now your ex-old pal.”

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10

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13

Defendant contends the letter was irrelevant and inadmissible “character”
evidence. The court admitted the letter as relevant to the witness’s “credibility with
respect to bias and prejudice” and also relevant in light of defense cross-examination
of Millie Purnell. Previously, the defense had elicited from Purnell that defendant told
her he wanted the gun to “move money” for the “Mafia.” We see no error in light of
the defense evidence. As the court found, evidence that the witness and defendant
were not merely friends and employer-employee was relevant to the witness’s
credibility and to the reliability of the employment records used to establish the partial
alibi. “Evidence showing a witness’s bias or prejudice or which goes to his
credibility, veracity or motive may be elicited during cross-examination.” (People v.
Howard (1988) 44 Cal. 3d 375, 428 [parallel citations omitted].) Moreover, the
evidence was relevant to corroborate the testimony the defense elicited from Purnell in
an apparent attempt to discredit her testimony. Defendant argues the letter should
have been excluded as too prejudicial. We disagree. The letter was relatively
innocuous. As the court noted, the reference to the “loan sharking business” was not
much different from the “Mafia” reference the defense itself elicited from Purnell.
The court acted within its discretion in admitting the letter.
Carpenter, 21 Cal. 4th at 1052-1054.

14
Petitioner has not cited to any clearly established federal law demonstrating the state court’s

15
denial of this claim was objectively unreasonable, nor has he shown the state court’s denial of the

16
claim relied on an unreasonable determination of the facts. A petitioner’s burden in demonstrating a

17
due process violation based on a trial court’s evidentiary decisions is substantial. Estelle v. McGuire,

18

502 U.S. 62, 68 (1991); Boyde v. Brown, 404 F. 3d 1159, 1172 (9th Cir. 2005). The admission of

19
evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated

20
or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed

21
22

by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784
F.2d 984, 990 (9th Cir.). The Supreme Court “has not yet made a clear ruling that admission of

23
irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant

24

issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding trial

25
court’s admission of irrelevant pornographic materials was “fundamentally unfair” under Ninth

26
Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal

27
law under section 2254(d)). The due process inquiry in federal habeas review is whether the

28
12

1 admission of evidence was so prejudicial that it rendered the trial fundamentally unfair. Walters v.
2 Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. Only if there are no permissible
3 inferences that the jury may draw from the evidence can its admission violate due process. See
4 Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
5

In petitioner’s case, as the state court reasonably found, there were permissible inferences the

6 jury could have drawn from the testimony at issue. See Jammal, 926 F. 2d at 920. It would have
7 been permissible for the jury to infer that the statements about guns, murder and rapes were a
8 “general reference to the charged crimes, which made them relevant to whether [petitioner]
9 committed them.” Carpenter, 21 Cal. 4th at 1053. The letter was admitted as relevant to witness

11 petitioner contends the state evidentiary rules at issue in his trial give rise to a protected liberty
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United States District Court

10 credibility, and as to the reliability of evidence elicited by petitioner’s counsel. Id. To the extent

12 interest under Hicks v. Oklahoma, 447 U.S. 343 (1980), his argument also fails. To begin with, the
13 Supreme Court has confirmed that not every state-law error rises to the level of a federal due process
14 violation. Rivera v. Illinois, 556 U.S. 148, 159 (2009). Moreover, as the California Supreme Court
15 held in its reasoned opinion, there was no state-law error in the admission of the evidence at issue.
16 Carpenter, 21 Cal. 4th at 1052-1054. A state court’s interpretation of state law, including one
17 announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
18 corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v. Feiock, 485 U.S. 624, 629 (1988).
19

Furthermore, petitioner has not shown any of the above-referenced alleged errors were

20 prejudicial. Even if a petitioner meets the requirements of section 2254(d), habeas relief is warranted
21 only if the constitutional error at issue had a substantial and injurious effect or influence in
22 determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this
23 standard, as noted, petitioners “may obtain plenary review of their constitutional claims, but they are
24 not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
25 prejudice.’” Brecht, 507 U.S. at 637, citing United States v. Lane, 474 U.S. 438, 439 (1986). Here,
26 petitioner maintains that the testimony at issue was irrelevant and prejudicial character evidence that
27 could have made the jury more likely to conclude he committed the charged crimes. As the state
28 court reasonably found and as the record confirms, however, there was substantial other evidence
13

1 introduced against petitioner to show he committed the charged offenses, see Carpenter, 21 Cal. 4th at
2 1029-1032, and, given the strength of the evidence against him, there is no reasonable likelihood that
3 without the challenged evidence, petitioner would have been acquitted. Petitioner thus cannot
4 establish he suffered any prejudice, and, consequently, his claim fails for that reason as well. See
5 Brecht, 507 U.S. at 637.
6

Accordingly, this claim will be denied.

7 IV.

Claim 18: Admission of Autopsy Photos

8

In Claim 18, petitioner contends admission of autopsy photos deprived him of his rights to

9 due process and a fundamentally fair trial. The California Supreme Court denied this claim in a

11
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10 reasoned opinion on direct appeal, as follows:

12
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15
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18

3.

Photographs

The prosecution sought to admit a number of photographs of the murder
victims. The court excluded some as unduly prejudicial but admitted others over
defense objection, including three of victims O’Connell and May. The court admitted
one to show the mark on O’Connell’s neck, which was relevant to whether the wire
one witness said defendant showed her could have inflicted it. The court admitted two
to support the pathologist’s testimony regarding the manner of death and sequence of
shots. Defendant contends the court erred in admitting the photographs and violated
his federal constitutional rights. “Because defendant objects only on statutory
grounds, the constitutional arguments are not cognizable on appeal.” Carpenter II,
supra, 15 Cal. 4th at p. 385.) Moreover, “The court did not abuse its broad discretion
in admitting the photographs.” (Ibid.) They were relevant for the purposes identified.
The court carefully exercised its discretion in excluding photographs it found unduly
gruesome and admitting others it found less gruesome.

19 Carpenter, 21 Cal.4th at 1054.
20

Petitioner cannot demonstrate he is entitled to relief on this claim. As this Court has already

21 noted, petitioner bears a substantial burden in demonstrating a due process violation based on the
22 trial court’s evidentiary rulings. See Estelle, 502 U.S. at 68. The admission of evidence is not
23 subject to federal habeas review unless a specific constitutional guarantee is violated or the error is
24 of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process,
25 see Henry, 197 F.3d at 1031, and, as noted, the Supreme Court “has not yet made a clear ruling that
26 admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient
27 to warrant issuance of the writ,” Holley, 568 F.3d at 1101. The due process inquiry on federal habeas
28 review is whether the admission of evidence was so prejudicial that it rendered the trial
14

1 fundamentally unfair. Walters, 45 F.3d at 1357; Colley, 784 F.2d at 990. Only if there are no
2 permissible inferences that the jury may draw from the evidence can its admission violate due
3 process. See Jammal, 926 F.2d at 920.
4

In order to show a violation of due process based on photographic evidence, petitioner “must

5 demonstrate that the erroneous admission of the photographs rendered his trial fundamentally
6 unfair.” Villafuerte v. Steward, 111 F. 3d 616, 627 (9th Cir. 1997) (finding photographs of blood at
7 crime scene and of bindings used on murder victim relevant evidence to show defendant knowingly
8 restrained victim with intent to kill or injure her, and, as such, did not deprive defendant of fair trial);
9 see also Kealohapauole v. Shimoda, 800 F. 2d 1463, 1465-1466 (9th Cir. 1986) (holding 45-minute

11 trial fundamentally unfair).
For the Northern District of California

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10 video of murder victim’s autopsy was relevant to show cause of death and did not render defendant’s

12

Here, as the state court found and as the court’s review of the record confirms, the

13 photographs in question were relevant to show how the victims were killed, and thus to connect the
14 murder weapon to petitioner, and they also corroborated the testimony of pathologist Dr. Ervin
15 Jindrich on a significant issue. Consequently, there were permissible inferences the jurors could
16 draw from the photographs, and petitioner thus cannot demonstrate their introduction in evidence
17 rendered his trial unfair. See Jammal, 926 F.2d at 920. This claim will be denied.
18 V.

Claim 19: Fourth Amendment Claim

19

In Claim 19, petitioner argues that evidence obtained through wrongful searches and seizures

20 was improperly used against him at his trial. This claim was rejected by the California Supreme
21 Court in a reasoned decision on direct appeal, as follows:
22
23
24
25
26

3.

Search and Seizure Issues

At trial, defendant moved to suppress various items of evidence. He contends
the court erred in denying the motion. As a threshold matter, the Attorney General
argues that because defendant made a similar motion to suppress evidence in the first
prosecution (see Carpenter II, supra, 15 Cal. 4th at ¶. 362-366), he is collaterally
estopped from relitigating the searches’ legality. [citations omitted]. The Attorney
General makes a similar argument as to other issues that are common to both
prosecutions. We need not decide whether and to what extent collateral estoppel
applies here, because none of the contentions have merit. . . .

27
28

As in the earlier appeal, defendant challenges a search warrant for the search
of his home, person, and cars. He makes one argument not made in the first appeal.
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He argues that the warrant was overbroad because it did not “particularly describ[e]
the . . . things to be seized.” (Cal. Const.’ art. I, § 13.) He does not clearly specify
what evidence admitted at trial was seized under a provision that he claims was
overbroad, but he appears to challenge the admission of maps and “Sierra Club
materials . . . including books, hiking schedules, and maps of Mt. Tamalpais.” The
warrant authorized the seizure of “National or State Park material brochures, maps,
receipts, or literature; and road maps.” The authorization was appropriate. The
police had probable cause to believe defendant was a serial killer of victims along
isolated hiking trails. Under the circumstances, the range of potential relevant
evidence was quite broad. “[I]n a complex case resting upon the piecing together of
many bits of evidence the warrant properly may be more generalized than would be
the case in a more simplified case resting upon more direct evidence.” (People v.
Bradford (1997) 15 Cal. 4th 1229, 1291 [parallel citations, additional internal
quotation, and citation omitted].) Items showing familiarity with the crime scenes
were clearly relevant to connect defendant to these crimes.
The remaining portions of the warrant that defendant challenges as overbroad
also seem reasonably directed to the seizure of relevant evidence. But we need not
decide the question definitively. Defendant has not identified any item seized under
any of these provisions which was admitted at trial. Accordingly, even if we assume
some provision of the warrant was overbroad, defendant has not shown that any
evidence should have been suppressed. (People v. Camarella (1991) 54 Cal. 3d 592,
607, fn. 7 [parallel citations omitted].)
Defendant also argues the affidavits supporting the warrant contained material
misstatements and omitted material facts, and the search of his home exceeded the
warrant’s scope. On the latter point, defendant challenges only one item of evidence
actually admitted at trial, a pair of athletic shoes. Our discussion rejecting similar
arguments in Carpenter II, supra, 15 Cal. 4th at pages 362-364, also applies to these
contentions.

16
17
18
19
20
21

Defendant challenges the seizure and subsequent search of his Chevrolet
station wagon. We rejected most of the arguments in Carpenter II, supra, 15 Cal. 4th
at pages 364-365. Defendant makes new arguments that some of the information
supporting probable cause was stale, and that the affidavits supporting the warrant
omitted more material information than he argued before. Having considered the new
arguments, we continue to find there was probable cause to search the vehicle and
that the supporting affidavits were not substantially misleading. Defendant also
challenges the seizure of the bullet from the car. We previously rejected a similar
argument. (Carpenter II, supra, 15 Cal. 4th at p. 365.) To the extent defendant’s
current contention differs from his previous one, we find nothing warranting a
different outcome.

22
23
24
25
26
27
28

Finally, defendant argues the police unlawfully obtained his federal prison
and parole records. His federal probation officer allowed the police to review the
records when they were investigating these crimes. Later the police obtained copies
of some of the records from federal authorities. Defendant argues these events
violated the federal Freedom of Information and Privacy Acts. (5 U.S.C. §§ 552,
552a.) Assuming that the acts cover these records (see United States v. Miller (10th
Cir. 1981) 643 F. 2d 713, 715), the Privacy Act allows disclosure “for a routine use . .
.” (5 U.S.C. § 552a(b)(3).) The probation officer testified that he provided the
information to the police under agency rules stating that approved routine uses
include “‘providing assistance to federal, state, local or foreign enforcement officers
investigating a violation of law.’” Defendant does not challenge the accuracy of this
testimony. “Consequently, no violation of the Privacy Act occurred.” (United States
16

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2

v. Miller, supra, 643 F. 2d at p. 715 [additional citations omitted]. Because defendant
has shown no violation of the acts, we need not decide whether a violation would
require the suppression of evidence.

3 Carpenter, 21 Cal.4th at 1043-1044.
4

Petitioner cannot prevail on this claim. To begin with, as petitioner does and must

5 acknowledge, Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976), bars federal habeas review of
6 Fourth Amendment claims unless the state did not provide an opportunity for full and fair litigation
7 of those claims. Even if the state courts' determination of the Fourth Amendment issues is improper,
8 it will not be remedied in federal habeas corpus actions so long as the petitioner was provided a full
9 and fair opportunity to litigate the issue. See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983).

11 fair hearing forecloses, upon habeas review, this Court's inquiry into the trial court's subsequent
For the Northern District of California

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10 All Stone v. Powell requires is the initial opportunity for a fair hearing. Such an opportunity for a

12 course of action, including whether or not the trial court made any express findings of fact. See
13 Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986). The existence of a state procedure allowing an
14 opportunity for full and fair litigation of Fourth Amendment claims, rather than a defendant's actual
15 use of those procedures, bars federal habeas consideration of those claims. See Gordon v. Duran,
16 895 F.2d 610, 613-14 (9th Cir. 1990) (holding whether or not defendant litigated Fourth Amendment
17 claim in state court is irrelevant if he had opportunity to do so under California law). California
18 state procedure provides an opportunity for full and fair litigation of any Fourth Amendment claim.
19 See Terrovona v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir. 1990), cert. denied, 499 U.S. 979
20 (1991) (discussing factors relevant to opportunity for full and fair litigation of claim).
21

Petitioner suggests the bar set forth in Stone should not apply in capital habeas cases and that

22 AEDPA calls such bar into question. Petitioner, however, cites to no clearly established federal law
23 that in any way limits Stone to non-capital and/or pre-AEDPA cases. Indeed, as respondent
24 correctly points out, case authority is to the contrary. (See Respondent’s Brief at 39-40 and cases
25 cited therein.) Further, even if Stone did not preclude this Court from examining the merits of his
26 claim, petitioner would not be entitled to relief. The state court’s reasoned opinion was not
27 objectively unreasonable under any clearly established federal law, nor was it based on an
28 unreasonable determination of the facts.
17

1

Accordingly, this claim will be denied.

2 VI.

Claim 20: Admission of Evidence Allegedly Obtained in Violation of Miranda

3

In Claim 20, petitioner asserts the state courts unreasonably relied on the inevitable

4 discovery doctrine to admit evidence obtained as an alleged result of a violation of petitioner’s
5 Miranda rights. The California Supreme Court denied this claim in a reasoned opinion on direct
6 appeal, as follows:
3.

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Evidence Allegedly Obtained in Violation of Defendant’s Miranda
Rights

Defendant moved to suppress evidence he claimed was obtained in violation
of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [parallel citations
omitted]. On May 13, 1981, defendant’s parents told the police that Dr. Stamper was
the family optometrist. Sergeant Brook went to the doctor’s office the same day and
was told that defendant’s mother was a patient but not defendant. Sergeant Brook
testified at the suppression hearing that he was dissatisfied with the information he
had received from the office and had decided to return to investigate further. He
questioned defendant after his arrest on May 15, 1981, and asked further questions
after defendant invoked his right to counsel. Defendant told him that he had ordered
some glasses from Dr. Stamper. The next day, another officer went to the doctor’s
office and interviewed various employees, including Jacqueline Purcell.[5]
The prosecution did not present evidence of defendant’s statement, but Purcell
testified at the guilt phase that on May 2, 1981, defendant came to the doctor’s office
to have his glasses repaired and to order a new pair of glasses with the model name
“Hillside.” She sometimes saw him wearing a baseball cap. The court refused to
suppress the evidence, finding that the police inevitably would have discovered
Purcell as a potential witness. In a detailed oral ruling, the court specifically
“accept[ed] and credit[ed]” Sergeant Brook’s testimony. It found that Sergeant
Brook was still very interested in Dr. Stamper’s office, and had he “not received the
direct information from [defendant] on May 15th, that he . . . or some other
investigator would have gone back to Dr. Stamper’s office. . . .” In addition to
Sergeant Brook’s testimony, the court noted the sheer size and scope of the
investigation into the serial killer case in determining that the police would inevitably
have discovered Purcell’s information.

25

The parties agree that Sergeant Brook obtained defendant’s statement in
violation of the Miranda rules. Accordingly, the statement itself was inadmissible; it
was not admitted. Defendant argues that the court also had to suppress Purcell’s
testimony as the fruit of the poisonous tree. (See generally Wong Sun v. United
States (1963) 371 U.S. 471 [parallel citations omitted]). The Attorney General
responds that the fruit of the poisonous tree does not apply to a noncoerced statement
taken in violation of the Miranda rules. . . . We need not resolve the question because
we uphold the trial court’s application of the inevitable discovery rule.

26

Evidence need not be suppressed if the prosecution can establish by a

22
23
24

27

5

Eyeglasses were relevant to the investigation because victim Haertle described the glasses

28 worn by his assailant, and the police were aware that petitioner wore glasses. 37 RT 2212-2219. In
addition, prescription eyeglasses were found at the scene of another murder that was believed to
share a similar modus operandi with the Marin County murders. 37 RT 2295-2298.
18

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preponderance of the evidence that the information would inevitably have been
discovered by lawful means. (Nix v. Williams (1984) 467 U.S. 431 [parallel and
additional citations omitted]. As this is essentially a question of fact, we must uphold
the trial court’s determination if supported by substantial evidence. (See People v.
Boyer, supra, 48 Cal. 3d at p. 263 . . .) Deferential review is particularly necessary
when, as here, the factual determination depends in part on judging a witness’s
credibility. Here, substantial evidence supports the court’s finding. Sergeant Brook,
whose testimony the court specifically credited, testified he had intended to return to
the office to investigate further. Urging his own view of the evidence, defendant
argues the police might not have discovered the information absent the Miranda
violation, but we have no basis on which to overturn the court’s determination.
Defendant also argues that the inevitable discovery rule should not apply
because of the “flagrancy” of the unlawful conduct. We implicitly disagreed in
People v. Boyer, supra, 48 Cal. 3d at pages 277-279. Although Sergeant Brook
clearly violated the prophylactic Miranda rules, the record does not suggest that
defendant’s statement was coerced or otherwise involuntary. In those circumstances,
federal law (and California law today) allows even the statement itself to be used for
impeachment. . . . When, as here, the evidence would have been discovered lawfully
even absent the Miranda violation, “the deterrence rational [of the exclusionary rule]
has so little basis that the evidence should be received. Anything less would reject
logic, experience, and common sense.” Nix v. Williams, supra, 467 U.S. at p. 444
[parallel citation omitted].
Moreover, any error would have been harmless, whether measured by the
reasonable doubt standard applicable to federal constitutional error (Chapman v.
California (1967) 386 U.S. 18, 24 [parallel citations omitted]) or the reasonable
probability standard applicable to errors of state law. (People v. Watson (1956) 46
Cal. 2d 818, 836-837 [parallel citation omitted]). The issue of guilt was not even
remotely close. The trial court correctly described the evidence of defendant’s guilt
as “overwhelming.” (Carpenter I, supra, 9 Cal. 4th at p. 645.) The evidence of
identity was so strong that defendant did not contest it at the first trial. Defendant’s
friend, Mollie Purnell, purchased the gun used to commit all the crimes. Purnell and
other witnesses connected him to that weapon. It is unreasonable to suppose that
Purnell, Shane Williams, who told the police where to find the murder weapon, and
Karen Williams, Shane’s wife and partner in crime, all chose to commit perjury to
help convict an innocent person of capital crimes. In addition, “[r]egarding the
Hansen/Haertle crimes, there were multiple eyewitness identifications, evidence
regarding the distinct jacket both the gunman and the defendant wore, shoeprint
evidence, and evidence that defendant owned a car similar to the gunman’s.”
Carpenter II, supra, 15 Cal. 4th at p. 362.).
At the second trial, defendant did attempt to establish a doubt as to his identity
as the gunman but did little to diminish the force of the prosecution evidence.
Defendant presented virtually no alibi evidence other than his own testimony. An
employer testified that he was at work with her until as late as 5:30 to 6:00 p.m. the
day Alderson was killed. Even if one believes the witness could remember that
particular day with such precision, the testimony proved little. The victim was seen
alive around 5:30 p.m. that day, and her body was not discovered until two days later.
Defendant presented documentary evidence that he claimed supported his testimony
regarding some of his activities the day Moreland and Stowers were killed, but even
crediting those documents, they did not prevent him from being the killer on that
date. Moreover, an expert testified that someone intentionally altered the date on two
of the documents.

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Defendant also presented the testimony of some witnesses who saw a person
who might have been the gunman but presumably was not defendant. The evidence
may have shown a few false leads, or that some witnesses noticed the gunman’s
jacket but did not particularly note his face at a time when there was no reason to. It
did little else. Moreover, two of these witnesses testified that defendant did look like
the person they saw. Defendant presented evidence showing that a particular shoe
similar (not identical) to one he purchased could not have made the gunman’s
footprints, but other evidence established that the shoes he purchased could have
made the footprints; they were of the same size and pattern.
Defendant testified, denying the crimes and describing in great detail his
activities during the relevant times, but his testimony was far from convincing. He
admitted wearing the distinctive jacket and purchasing the shoes similar in size and
pattern to those of the gunman. He also admitted knowing Purnell and others who
connected him to the murder weapon. Testifying after he reviewed telephone
records, he admitted he had numerous telephone conversations with Purnell during
the relevant times, including four the day before she purchased the eventual murder
weapon, one the day after she purchased it, and others around the time she received it.
He denied that these conversations related to her purchasing the gun for him and
claimed that she was lying. He also denied his other acquaintances’ testimony that
connected him to the murder weapon. He admitted owning a red Fiat like the
gunman’s, which he said he purchased on March 25, 1981. He also admitted that
when he talked to the police a few days before his arrest, in response to their
questions about his vehicles, he told them about one of his cars but not the Fiat. He
claimed he understood the police to be interested only in the cars to which he had
access on May 2, 1981, and he did not have access to the Fiat on that date because it
was “in the shop.” Defendant testified he was at work all day the day Alderson was
killed. On direct examination, he referred to some records that he said showed he had
typed a response to a certain business letter from Hong Kong that day. On crossexamination, the prosecution confronted him with his employer’s records showing
that the letter from Hong Kong was itself dated the day Alderson was killed.
Defendant then acknowledged that he could not have written the response when he
said he did.
In light of the trial as a whole, Purcell’s testimony was insignificant. Any
error in allowing her to testify was harmless.

19
Carpenter, 21 Cal.4th at 1039-1042.

20
Petitioner has not pointed to any clearly established federal law demonstrating the state

21
court’s denial of this claim was objectively unreasonable, nor has he shown the state court’s denial

22
of the claim relied on an unreasonable determination of the facts. It is undisputed that petitioner’s

23
statement regarding Dr. Stamper was made after petitioner had invoked his right to counsel and thus

24
was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that, consequently,

25
petitioner’s statement was not admitted at trial. Although petitioner argues that the evidence

26
obtained as a result of his statement ought to have been suppressed under the “fruit of the poisonous

27
tree” doctrine, see Wong Sun v. United States, 371 U.S. 471 (1963), the “fruit of the poisonous tree”

28
20

1 doctrine does not operate in the Miranda context in the same way that it does in the Fourth
2 Amendment context. In the former, as the Supreme Court has held, “the exclusionary rule
3 articulated in cases such as Wong Sun does not apply.” See United States v. Patane, 542 U.S. 630,
4 636 (2004) (plurality opinion) (finding physical fruits of voluntary statements taken in violation of
5 Miranda not excludable).
6

Here, petitioner has never contended his statement regarding Dr. Stamper was involuntary,

7 and there is no evidence in the record that he was in any manner subjected to coercion. Indeed, the
8 trial court hearing regarding this issue confirmed there was no coercion, and that petitioner himself
9 stated he was “treated fairly” by the interrogating officer. 38 RT 2361-2362. See Colorado v.

11 Amendment only if product of “coercive police activity”); see also Pollard v. Galaza, 290 F.3d
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10 Connelly, 479 U.S. 157, 167 (1986) (holding confession is involuntary under Fourteenth

12 1030, 1034 (9th Cir. 2002).
13

Moreover, as the state court reasonably found, see Carpenter, 21 Cal.4th at 1040-1041, the

14 discovery of Dr. Stamper’s office, as well as the eventual testimony of his employee Purcell, was
15 inevitable. See Nix v. Williams, 467 U.S. 431, 444 (1983) (holding evidence obtained as result of
16 illegal conduct by police admissible where such evidence would have been discovered even absent
17 illegal conduct). Finally, petitioner has not shown that any alleged evidentiary errors were
18 prejudicial to him. Even if a petitioner meets the requirements of section 2254(d), habeas relief is
19 warranted only if the constitutional error at issue had a substantial and injurious effect or influence
20 in determining the jury’s verdict. Brecht , 507 U.S. at 638. As the state court reasonably found and
21 as the record confirms, there was a considerable amount of other evidence introduced against
22 petitioner to demonstrate he committed the crimes, Carpenter, 21 Cal. 4th at 1041-1042, and there is
23 no reasonable likelihood that without Purcell’s testimony, petitioner would have been acquitted.
24 Given the strength of the evidence against him, petitioner cannot establish that any alleged
25 evidentiary error was prejudicial to him. Brecht, 507 U.S. at 637.
26

Accordingly, this claim will be denied.

27 VII.

Claim 21: Admission of Eyewitness Identification Evidence Obtained Via Lineup

28

In Claim 21, petitioner contends identification evidence used against him was obtained by an
21

1 unfair lineup in violation of his rights to counsel and due process. The California Supreme Court
2 denied this claim in a reasoned opinion on direct appeal, as follows:
3
4
5
6

4.

Denial of Motion to Suppress Identification Evidence

After defendant’s arrest, several witnesses viewed him in a six-man physical
lineup. Defendant contends the lineup was impermissibly suggestive. We rejected a
similar argument regarding the same lineup in Carpenter II, supra, 15 Cal. 4th at
pages 366-368. As we held in that case, nothing in the lineup caused defendant to
“‘stand out’ from the others in a way that would suggest the witness should select
him.” (Id. at p. 367.) “[A]s a whole, the lineup was not unduly suggestive.’” (Ibid.)

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United States District Court

10

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Although two defense attorneys attended the lineup, defendant also contends
his right to their assistance was violated because they were not allowed to be present
at interviews with the witnesses just before and after the lineup. He relies solely on
People v. Williams (1971) 3 Cal. 3d 853 [parallel citations omitted]. In Williams,
defense counsel was present for the lineup, but after viewing it, the witness “was
taken outside the viewing room for the purpose of making his identification.
Appellant’s attorney asked permission to accompany [the witness] and listen to any
identification made by him” but was not permitted to do so. (Id. at p. 855.) Under
these facts, we found a violation of the defendant’s rights to an attorney. Defendant
argues a similar violation occurred in this case. We rejected a similar argument in
Carpenter II, supra, 15 Cal. 4th at pages 368-369, and distinguished Williams partly
on the basis that here the actual identifications occurred in the presence of defense
counsel. Defendant now makes new factual arguments that two of the witnesses, one
who identified him at the lineup and one who selected someone else, made the actual
identifications in defense counsel’s absence.

15
16
17
18
19
20

In response, the Attorney General argues first that, because the lineup was
held before formal judicial proceedings had begun, defendant was not entitled to
counsel at all. (Kirby v. Illinois (1972) 406 U.S. 682 [parallel citations omitted];
United States v. Gouveia (1984) 467 U.S. 180, 187-188 [parallel citations omitted].)
He notes that the holding of People v. Bustamente (1981) 30 Cal. 3d 88 [parallel
citations omitted], which established a contrary rule under state law, applied
prospectively only (id. at p. 102), and that the lineup of this case occurred months
before that decision. It appears that at the time of the lineup, formal charges had been
filed for the Santa Cruz County crimes but not the crimes charged in this case. We
need not decide whether defendant’s right to counsel applied only to the Santa Cruz
County crimes because there was no violation of the right as to any of the crimes.

21
22
23
24
25
26
27
28

The evidence was conflicting whether the two witnesses made their
identifications during the lineup or afterwards. The witnesses themselves testified
they received and marked identification cards after the lineup. However, the detective
who escorted the witnesses individually to and from the lineup testified that the
witnesses who identified defendant did so in the lineup room. The victim, Haertle,
testified he marked his identification form in the lineup room, suggesting that the
detective’s pattern was to have the witnesses fill out the card in the lineup room. The
trial court could reasonably have credited the detective’s testimony, concluding that
the two witnesses, who testified long after the lineup, merely forgot they had received
the lineup card during the lineup. The court did not expressly resolve this factual
question, but “[a]n order is presumed correct; all intendments are indulged in to
support it on matters as to which the record is silent, and error must be affirmatively
shown.” (Corenevsky v. Superior Court (1984) 36 Cal. 3d 307, 321 [parallel citations
omitted].) We must “view the record in the light most favorable to the trial court’s
22

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ruling and defer to its findings of historical fact, whether express or implied, if they
are supported by substantial evidence.” (People v. Miranda (1993) 17 Cal. App. 4th
917, 922 [parallel citations omitted].) Because substantial evidence supports an
implied finding that the witnesses made their identifications in the lineup room,
defendant has not demonstrated error.
Moreover, we see no basis to exclude any evidence even if either or both of
the two witnesses had actually marked the lineup card in counsel’s absence. The
Williams court expressly limited its holding to its facts and “expressed[ed] no opinion
on any case which may arise in a different factual setting.” (People v. Williams,
supra, 3 Cal. 3d at p. 857.) In this case, the interviews were tape-recorded, which
“minimized the concerns that led to the adoption of the Williams rule.” (Carpenter II,
supra, 15 Cal. 4th at p. 369). Unlike Williams, counsel here could listen to the
recording of the interview, and thus be “fully apprised” of what occurred. (People v.
Williams, supra 3 Cal. 3d at p. 856.) Williams was narrowly decided. As Justice
Mosk’s strong dissent, joined by two others, noted, defense counsel must not be
allowed to interfere with a police investigation. (Id. at p. 860).

11
For the Northern District of California

United States District Court

10 Carpenter, 21 Cal.4th at 1045-1046.
Petitioner has not cited to any clearly established federal law demonstrating the state court’s

12 denial of this claim was objectively unreasonable, nor has he shown the state court’s denial of the
13 claim relied on an unreasonable determination of the facts. Petitioner first argues the identifications
14 were made under unduly suggestive circumstances. As the state court reasonably found, however,
15 and as the record confirms, the identification process was not unduly suggestive. See id. at 1045
16 (incorporating detailed findings made in Carpenter II, 15 Cal.4th at 366-68, as to participants in
17 lineup). The cases relied upon by petitioner concern the admissibility of identification evidence
18 once it has already been determined that the procedures were unduly suggestive. See, e.g., Manson
19 v. Brathwaite, 422 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188, 199 (1972). Here, by contrast,
20 petitioner can point to no evidence demonstrating the state court decision holding the identification
21 process was not unduly suggestive was based on an unreasonable determination of the facts. See 28
22 U.S.C. § 2254(d). Consequently, to the extent petitioner’s claim is based on an assertedly
23 suggestive lineup, the claim fails.
24

Secondly, petitioner argues that, although defense counsel for the Santa Cruz County charges

25 was present, no attorney had been appointed for the Marin County homicides and he thus was
26 improperly denied the assistance of counsel as to the Marin County charges. At the time of the
27 lineup, however, petitioner had not been charged with any crimes in Marin County. As petitioner
28 acknowledges in his brief, controlling United States Supreme Court authority confirms there is no
23

1 right to counsel at pre-indictment lineups, as the right to counsel does not attach until adversary
2 judicial proceedings have been initiated against a defendant. See Kirby v. Illinois, 406 U.S. 682,
3 688-691 (1972). Consequently, to the extent petitioner’s claim is based on an asserted denial of
4 counsel, the claim likewise is unavailing.
5

Accordingly, this claim will be denied.

6 VIII. Claim 26: Jury Instructions Regarding Theories of First Degree Murder
7

In Claim 26, petitioner argues the trial court erroneously instructed the jury that, if it

8 unanimously agreed petitioner was guilty of first-degree murder, it did not have to unanimously
9 agree on the underlying theory of murder. According to petitioner, such instruction violated his
11 this claim in a reasoned opinion on direct appeal, as follows:
For the Northern District of California

United States District Court

10 rights under the Sixth, Eighth and Fourteenth Amendments. The California Supreme Court rejected

12
13
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15
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17
18

As to the murders of Alderson, O’Connell, and May, the court instructed the
jury on felony murder as a theory of first degree murder. It also instructed that if the
jury unanimously agreed defendant was guilty of first degree murder, it was not
required to agree on a theory. Defendant argues the instruction was erroneous. We
have repeatedly rejected the argument. (Carpenter II, supra, 15 Cal. 4th at ¶. 394395, and cases cited.) Any error was also harmless. As to the murders of Moreland
and Stowers, the court instructed only on premeditation as a theory of first degree
murder. The jury convicted defendant of the first degree murder of those victims,
thus finding premeditation. It is hard to imagine how the jury could find defendant
premeditated those killings and not the others. Moreover, as to the other three
victims, the jury also found defendant guilty of rape or attempted rape and found true
the rape-murder special circumstance. The jury thus unanimously agreed with a firstdegree felony-murder theory. (Carpenter II, supra, 15 Cal. 4th at p. 395.)

19 Carpenter, 21 Cal. 4th at 1058.
20

Petitioner cannot point to any clearly established federal law demonstrating the state court’s

21 denial of this claim was objectively unreasonable, nor has he shown the state court’s denial of the
22 claim relied on an unreasonable determination of the facts. Indeed, petitioner concedes that his
23 ability to prevail on this claim is foreclosed by Sullivan v. Borg, 1 F. 3d 926, 927-929 (9th Cir.
24 1993). In Sullivan, the Ninth Circuit found no due process violation where an instruction permitted
25 jurors to convict on a first degree murder charge without requiring unanimity with respect to a
26 finding of felony murder or premeditation and deliberation, because California permissibly
27 characterized first-degree murder as “‘a single crime as to which a verdict need not be limited to any
28 one statutory alternative.’” See id. (quoting Schad v. Arizona, 501 U.S. 624, 630-631 (1991)).
24

1

Accordingly, this claim will be denied.

2 IX.

Claim 27: Jury Instructions Regarding Circumstantial Evidence

3

In Claim 27, petitioner contends various guilt phase instructions regarding circumstantial

4 evidence unconstitutionally reduced the prosecution’s burden of proof. According to petitioner,
5 such instructions violated his rights to due process and to a reliable guilt phase verdict. In particular,
6 petitioner challenges the use of the words “appear” and “duty” in CALJIC No. 2.01, which, in part,
7 states: “If . . . one interpretation of such [circumstantial] evidence appears to you to be reasonable
8 and the other interpretation to be unreasonable, it would be your duty to accept the reasonable
9 interpretation and to reject the unreasonable.” See CALJIC No. 2.01. He also challenges similar
11 (circumstantial evidence of special circumstances), and 8.83.1 (circumstantial evidence of mental
For the Northern District of California

United States District Court

10 language that appears in CALJIC Nos. 2.02 (circumstantial evidence of specific intent), 8.83
12 state for special circumstances), all of which were given at the guilt phase. On habeas review, the
13 California Supreme Court, in a summary opinion, denied the claim, both on procedural grounds and
14 on the merits.
15

The Due Process Clause of the Fourteenth Amendment protects the accused against

16 conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
17 crime with which he or she is charged. In re Winship, 397 U.S. 358, 364 (1970). This constitutional
18 principle prohibits the state from using evidentiary presumptions in a jury charge that have the effect
19 of relieving the state of its burden of persuasion beyond a reasonable doubt of every essential
20 element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991); Carella v. California, 491 U.S.
21 263, 265-66 (1989); Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S.
22 510, 520-24 (1979). So long as the trial court instructs the jury on the necessity that defendant's
23 guilt be proven beyond a reasonable doubt, the Constitution does not require that any particular form
24 of words be used in advising the jury of the government's burden of proof. Victor v. Nebraska, 511
25 U.S. 1, 6 (1994). Rather, taken as a whole, the instructions must correctly convey the concept of
26 reasonable doubt to the jury. See id. (citing Holland v. United States, 348 U.S. 121, 140 (1954)).
27 The proper inquiry is "whether there is a reasonable likelihood that the jury understood the
28 instructions to allow conviction based on proof insufficient to meet the Winship standard." Id. at 6.
25

1

Petitioner is unable to demonstrate that the state court’s decision is objectively unreasonable.

2 See Delgado, 223 F.3d at 982. Petitioner does not argue that the instructions given at his trial
3 regarding reasonable doubt were inadequate, nor has he shown that the challenged instructions in
4 any manner compelled the jurors to disregard the reasonable doubt standard. Petitioner has cited to
5 no case that calls into question the constitutionality of the cited jury instructions, which permissibly
6 instruct the jurors to accept reasonable interpretations of the evidence. Indeed, the California
7 Supreme Court has consistently held CALJIC No. 2.01 and the above-challenged related instructions
8 do not reduce the state’s burden of proof, see, e.g., People v. Brasure, 42 Cal. 4th 1037, 1058
9 (2008); People v. Snow, 30 Cal. 4th 43, 95 n.18 (2003); and while neither the United States Supreme

11 instructions, at least one district court has held CALJIC No. 2.01 does not reduce the state’s burden
For the Northern District of California

United States District Court

10 Court nor the Ninth Circuit appear to have squarely addressed CALJIC No. 2.01 or the related

12 of proof and is not in violation of clearly established federal law, see Lara v. Allison, 2011 WL
13 835594, *13-14 (C.D. Cal. 2011).6
14

As those cases make clear, petitioner takes the challenged language out of context. In both

15 CALJIC Nos. 2.01 and 8.83 themselves, the jury was first expressly instructed that every fact
16 necessary to prove an element of the offense or special circumstance must be proved beyond a
17 reasonable doubt. Further, those instructions, as well as CALJIC Nos. 2.02 and 8.83.1, expressly
18 admonished the jury that if two reasonable inferences could be drawn from the circumstantial
19 evidence, it was the jury’s duty to reject the inference pointing to the defendant’s guilt or special
20 circumstance.
21

Accordingly, as there is no “reasonable likelihood that the jury understood the instructions to

22 allow conviction based on proof insufficient to meet the Winship standard,” see Victor, 511 U.S. at 6,
23 this claim will be denied.
24 //
25 //
26 //
27
6

The language of
given
28 under consideration in thesaid instructions ascases isat petitioner’s trial and at the time of the trials
above-referenced
in all material respects the same.
26

1
2

Conclusion
For the foregoing reasons, Claims 4, 15C, 16, 18, 19, 20, 21, 26 and 27 in petitioner’s First

3 Amended Petition are hereby DENIED.
4

IT IS SO ORDERED.

5 DATED: August 26, 2013
6
7

MAXINE M. CHESNEY
UNITED STATES DISTRICT JUDGE

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