Farrish v. Sherman et al

Filing 36

ORDER Denying Amended Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 9/14/2017. (emcsec, COURT STAFF) (Filed on 9/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVEN WES FARRISH,
Petitioner,

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ORDER DENYING AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS

v.
STU SHERMAN, et al.,

Docket No. 18

Respondents.

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For the Northern District of California

United States District Court

Case No. 14-cv-01263-EMC

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In March 2010, a jury found Petitioner Steven Wes Farrish guilty of the murder of Tiyani

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Cole and the attempted murder of Dashawn Smith. See Docket No. 24-12 (RT at 2584-85). Mr.

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Farrish appealed his conviction in state court and, after his appeal was denied, filed a petition for a

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writ of habeas corpus with this Court. See 28 U.S.C. § 2254. Mr. Farrish then moved for, and was

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granted, a stay of proceedings in this case so that he could exhaust an additional claim in state

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court. After Mr. Farrish sought and was denied relief in state habeas proceedings, proceedings in

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this Court were reopened, and Mr. Farrish filed with this Court an amended habeas petition. The

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amended petition is currently pending before the Court. Having considered the papers submitted

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and the accompanying record evidence, the Court hereby DENIES Mr. Farrish‟s request for

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habeas relief.

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I.

FACTUAL & PROCEDURAL BACKGROUND

Mr. Farrish was convicted based on events that took place in Richmond, California, in May

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2008. The testimony at his trial has been summarized by the California appellate court in its

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decision People v. Farrish, No. A129772, 2012 Cal. App. Unpub. LEXIS 6911 (Cal. Ct. App.

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Sept. 24, 2012). To wit: On the afternoon of May 12, 2008, police officers were dispatched to the

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Hilltop neighborhood of Richmond to investigate reports of a shooting. Officers discovered the

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body of Mr. Cole – also known as “Slim” – in the side yard of a house at 2993 Gilma.
Mr. Cole‟s mother, Cassandra McElveen, was at the scene shortly after the shooting. As

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she was speaking to a police officer, she saw a car drive by with Mr. Smith sitting in the front

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passenger seat. Because she knew that Mr. Smith had been with Mr. Cole earlier in the day, she

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alerted the officer who then stopped the car and spoke to Mr. Smith. Mr. Smith told the officer

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that he and Mr. Cole had been walking near the intersection of Shane and Groom when Mr.

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Farrish drove by in a black vehicle. According to Mr. Smith, Mr. Farrish stopped the car, got out,

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and started shooting at him and Mr. Cole. Mr. Smith and Mr. Cole ran away together for a while

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but then split up. Upon learning that Mr. Cole had been killed, Mr. Smith broke down crying. Mr.

police that he could pick the shooter out of a photo lineup. The police then handcuffed Mr. Smith

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Smith told Mr. Cole‟s mother that Mr. Farrish had been shooting at them. Mr. Smith told the

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and put him in the back of a patrol car so that bystanders would not think that he was “snitching.”

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Mr. Smith was taken to a police station where he was interviewed. His interview was

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video recorded. During the interview, Mr. Smith stated that he and Mr. Cole had seen Mr. Farrish

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at a local McDonald‟s. Later, as Mr. Smith and Mr. Cole were walking in the Hilltop

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neighborhood, a black car came by with Mr. Farrish in the driver‟s seat and another man in the

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passenger‟s seat. Mr. Farrish got out and fired multiple shots at Mr. Smith and Mr. Cole. Mr.

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Smith and Mr. Cole ran away together for about a block but then separated. Mr. Smith hid in a

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back yard on Gilma. A short time later, Mr. Smith heard more gunshots. Mr. Smith had his

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girlfriend pick him up, and they drove by the scene where he was stopped by the police.

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According to Mr. Smith, at the time of the shooting, neither he nor Mr. Cole was carrying a gun,

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although Mr. Cole had in the past. Mr. Smith added that Mr. Cole carried on his person a .45-

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caliber bullet as a kind of good-luck charm.

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At the end of the police interview, Mr. Smith identified Mr. Farrish as the shooter from a

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photo lineup. When asked why Mr. Farrish might have shot at them, Mr. Smith indicated that it

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was related to Mr. Farrish‟s brother, Joe, being put in jail for shooting someone and Mr. Cole‟s

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brother snitching on Joe.

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At trial, the prosecution called upon Mr. Smith to testify. In contrast to what he had told
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Mr. Cole‟s mother and the police, Mr. Smith now claimed ignorance with respect to significant

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details on the day of the shooting, including who the shooter was. The prosecution, therefore,

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played the video-recorded interview of Mr. Smith, taken on the day of the shooting.

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At trial, the prosecution also offered two eyewitnesses who were at or close to the scene.

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One witness was a bus driver who had stopped her bus at the corner of Shane and Groom. She

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saw Mr. Smith and Mr. Cole running but did not see either one carrying a gun. She also saw a

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black car and a gun poking out the driver‟s side window. The car went down Gilma and she heard

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gunshots moments later. The other witness lived on Gilma and heard gunshots as he was getting

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into his car. He saw Mr. Smith and Mr. Cole running and then splitting up. Like the bus driver,

black car coming around the corner. The car stopped in the middle of the street, near 2993 Gilma,

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the witness did not see either one carrying a gun. The witness started to drive when he saw a

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and the witness heard gunshots.

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The police examining the crime scene found no guns near Mr. Cole‟s body or along the

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route where he and Mr. Smith had run. Near the corner of Shane and Groom, the police found one

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spent nine-millimeter casing and an unfired .45-caliber cartridge. At 2993 Gilma, the police found

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bullet impact points in a wooden fence and on or near the front porch, as well as some bullet

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fragments around the house. All the bullets and holes were consistent with medium-caliber

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ammunition, such as a nine-millimeter, and inconsistent with a .45 caliber ammunition.

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The evening of the shooting, the police searched Mr. Farrish‟s residence. Among other

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things, the police found a letter written to Mr. Farrish from his brother, Joe. The letter stated in

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part: “I want you to be cool out there. Don‟t do nothin‟ stupid. And watch out for them suckas,

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especially that nigga Slim [i.e., Mr. Cole].”

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Mr. Farrish was arrested early morning on May 13, 2008. Mr. Farrish‟s hands and clothing

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were tested for gunshot residue. Although there were no traces of such residue on the swab taken

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from Mr. Farrish‟s hands, there were particles of such residue on his shorts.

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To explain the motive behind the shooting, the prosecution offered several witnesses,

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including Mr. Cole‟s twin brother, Tavani Cole. Tavani testified that he and Mr. Cole knew Mr.

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Farrish and Mr. Farrish‟s brother, Joe, through school. One day, in March 2005, Mr. Cole told
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Tavani, Joe, and a third person (Pierre Hudson) that a man named Rashad Narcisse had paid

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someone to beat him up. Tavani, Joe, and Mr. Hudson later drove to Mr. Narcisse‟s house. Joe

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got out of the car with a gun while Tavani and Mr. Hudson left. Joe later called Tavani and said

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that he had killed Mr. Narcisse. Subsequently, Tavani, Joe, and Mr. Hudson were arrested.

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Tavani and Mr. Hudson agreed to plead guilty to accessory manslaughter. Tavani also agreed to

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testify at Joe‟s trial but, prior to trial, Joe pled guilty.

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According to Tavani and Mr. Cole‟s mother (Ms. McElveen), during the court proceedings

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related to the 2005 murder of Mr. Narcisse, Mr. Farrish and a family friend known as Dominic

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called Mr. Cole a snitch.

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According to Tavani, several years later, in February 2008 (i.e., a few months before Mr.
Cole was killed), Mr. Cole called Tavani and claimed that Mr. Farrish had tried to kill him by

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shooting at a rental car he had been driving. Mr. Cole‟s girlfriend at the time (Razalyn Nickola)

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also testified at trial about this incident, stating that Mr. Cole had also told her about Mr. Farrish

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shooting at the rental car. Ms. Nickola eventually informed the police about the shooting, and a

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police officer confirmed that he had seen bullet holes in the rental car.

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The defense‟s case largely revolved around a self-defense theory. In support of this theory,

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several witnesses testified, including Albert Broadway. Mr. Broadway testified that, during the

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relevant period, he was living with his godmother (Angel Montgomery) on Groom. On the day in

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question, Mr. Broadway and Mr. Farrish were driving in the black car to the house on Groom.

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When they got to the intersection of Shane and Groom, they saw Mr. Smith and Mr. Cole. Mr.

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Smith stepped off the curb and displayed a gun. Mr. Broadway thought Mr. Smith was going to

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kill him so he crouched down in the footwell of the car. Mr. Broadway heard gunshots but he was

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not sure who was firing. He did not see Mr. Farrish with a gun. At some point, Mr. Farrish‟s car

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door opened but Mr. Broadway did not know if Mr. Farrish got out of the car. Eventually, Mr.

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Farrish sped away, while Mr. Broadway remained crouched in the car footwell until they arrived

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at his house on Groom.

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Mr. Broadway admitted that he did not describe his version of the events to anyone until he
talked to a defense investigator about a year and a half after the shooting. However, Ms.
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Montgomery testified at trial that, the day of the shooting, Mr. Broadway came home looking

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shaken up and told her that somebody was trying to kill him. Ms. Montgomery also testified that,

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in February 2008 (i.e., a few months before Mr. Cole was killed), Mr. Farrish and her daughter

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(also Mr. Farrish‟s girlfriend) were sitting in front of the house on Groom when a car drove by and

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shots were fired at the house. According to Ms. Montgomery, Mr. Cole was the driver of the car.

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Finally, a woman (Victoria Cook) who had met Mr. Cole through her former boyfriend

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(Dominique Cole) testified that, on two occasions in 2008, she had been with Mr. Cole, and Mr.

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Cole stated that he wanted to kill Mr. Farrish. Ms. Cook admitted that she never told the police

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about Mr. Cole‟s statement and only told a defense investigator about the incidents in July or

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September 2009 after Dominique had befriended Mr. Farrish in jail.
In addition to the above testimonial evidence, the defense submitted evidence showing that

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Mr. Cole had been convicted in 2007 for possession of a concealed weapon by a person previously

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convicted of the same crime. Also, the parties stipulated to certain facts related to a police

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officer‟s search of Mr. Cole‟s car in 2006. The officer discovered a Colt .45 semiautomatic

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handgun in the car, and Mr. Cole told the officer that he carried the gun because people were

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looking to retaliate against him for a murder involving his brother (Tavani).

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As noted above, ultimately, the jury convicted Mr. Farrish of murder (with respect to Mr.

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Cole) and attempted murder (with respect to Mr. Smith). Mr. Farrish appealed but a California

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appellate court denied the appeal in September 2012. See Farrish, 2012 Cal. App. Unpub. LEXIS

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6911. In December 2012, the California Supreme Court summarily denied review. See Ex. I

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(order).

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In March 2014, Mr. Farrish initiated this habeas case, asserting the same basic claims as he

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did in his direct appeal. See Docket No. 1 (petition). Proceedings, however, were stayed so that

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Mr. Farrish could exhaust additional claims in state court. See Docket No. 6 (order).

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In December 2015, Mr. Farrish filed a state habeas petition, asserting that a declaration

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from an acquaintance (Deaundre Alexander) constituted newly discovered evidence establishing

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his actual innocence. In April 2016, a state superior court denied the state habeas petition. See

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Resp.‟s Ex. J (order). Mr. Farrish thereafter sought relief from an appellate court and the
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California Supreme Court. Mr. Farrish‟s petitions were summarily denied in each instance. See

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Resp.‟s Exs. L, Q (docket sheet and order).

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Subsequently, the stay of proceedings in the pending action was lifted. See Docket No. 17

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(order). In November 2016, Mr. Farrish filed an amended habeas petition. The government has

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responded, and Mr. Farrish has filed a traverse in reply.

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II.

DISCUSSION

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Mr. Farrish‟s case is governed by the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”). Under AEDPA, habeas relief may be granted if the state court proceedings

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“resulted in a decision that was contrary to, or involved an unreasonable application of clearly

decision that was “based on an unreasonable determination of the facts in light of the evidence

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established Federal law as determined by the Supreme Court of the United States” or resulted in a

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presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In the instant case, Mr.

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Farrish argues only the former – i.e., that the relevant state court decision was contrary to or an

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unreasonable application of clearly established federal law.

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“Under the „contrary to‟ clause, a federal habeas court may grant the writ if the state court

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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if

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the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

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“Under the „unreasonable application‟ clause, a federal habeas court may grant the writ if

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the state court identifies the correct governing legal principle from [the Supreme] Court's decisions

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but unreasonably applies that principle to the facts of the prisoner‟s case.” Id. at 413. “[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law erroneously

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or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A federal habeas

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court making the „unreasonable application‟ inquiry should ask whether the state court‟s

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application of clearly established federal law was „objectively unreasonable.‟” Id. at 409.

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The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the

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state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d
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1085, 1091-92 (9th Cir. 2005). “When there has been one reasoned state judgment rejecting a

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federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest

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upon the same ground.” Ylst, 501 U.S. at 803; see also Harrington v. Richter, 562 U.S. 86, 99

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(2011) (stating that, “[w]hen a federal claim has been presented to a state court and the state court

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has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the

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absence of any indication or state-law procedural principles to the contrary”). When the state

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court has denied a federal constitutional claim on the merits without explanation, the federal

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habeas court “must determine what arguments or theories supported or . . . could have supported,

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the state court's decision; and then it must ask whether it is possible fairminded jurists could

[the U.S. Supreme] Court.” Id. at 102.

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disagree that those arguments or theories are inconsistent with the holding in a prior decision of

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A.

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Mr. Farrish‟s Arguments
In his habeas petition, Mr. Farrish makes the following arguments:
(1) That his rights to due process, a fair trial, and an impartial jury were violated because the
trial court failed to conduct an inquiry related to comments made by Juror No. 10;
(2) That his right to due process was violated because the prosecution improperly commented
on witness credibility during the opening statement and closing argument;
(3) That his right to due process was violated because the trial court did not instruct the jury on

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how to evaluate evidence of third-party threats against prosecution witnesses;

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(4) That his rights to due process and a fair trial were violated because the trial court

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erroneously instructed the jury that character evidence could be used as evidence of

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character or propensity (i.e., not for a noncharacter purpose);

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(5) That his rights to due process and jury unanimity were violated because the trial court
refused to give an instruction on “unanimity of act”;
(6) That his due process rights were violated when the trial court refused the jury‟s request to
define the concept of “kill zone” (for the attempted murder charge); and
(7) That the state habeas court violated his right to due process by denying his petition based
on actual innocence without an evidentiary hearing.
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B.

Juror No. 10‟s Comments1
Mr. Farrish‟s first argument is that his rights to due process, a fair trial, an impartial jury

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were violated because the trial court failed to conduct an inquiry related to comments made by

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Juror No. 10. See Am. Pet. at 2. The background for this argument is as follows.
Jury selection began on February 26, 2010. On that day, the trial court instructed the entire

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venire panel that

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[i]t will be up to you to determine what the facts are in this case, and
then you will base that on the evidence that is presented in this
courtroom and from no other place, not from the newspaper, not
from the TV, not from the Internet, not from friends or family, but
from this courtroom and this courtroom only.

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Ex. A (RT at 225-26). The trial court further instructed that
[y]ou may not research this case on the Internet or anywhere else. It
is extraordinarily important that you not discuss this case, even the
nature of the charges, or anything that you have discovered, what
little you have discovered, about it just through the process of the
questionnaire or our discussions, with anyone, amongst yourselves,
with anyone else, because we‟ll start this whole process all over
again, and you can see already how much time it has taken just to
get this far. And we have done a lot of work before you even got
here. I can‟t stress this enough. This takes a tremendous amount of
time to give both sides a fair hearing and that‟s what we‟re about.

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So please take this to heart. Don‟t discuss it with anyone. Don‟t do
any research. Don‟t go on Google about this.

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Ex. A (RT at 232-33). The trial court repeated similar admonitions during voir dire. See, e.g., Ex.

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A (RT at 254) (“[W]e need the decision based only on the evidence presented in this courtroom,

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not from the newspaper article, and not from the Internet.”); Ex. A (RT at 254) (“The information,

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anything that comes from outside, has not been tested.”); Ex. A (RT at 268) (“[W]e‟re going to

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break . . . . I‟m going to remind you each and every time you leave the room, do not discuss the

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case.”); Ex. A (RT at 324) (“[W]e‟re going to be in recess. . . . [¶] So please remember the

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admonitions. You may not discuss the case with anyone.”).

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On Thursday, March 4, 2010, jury selection was completed. See Ex. A (RT at 728, 864).

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On Monday, March 8, 2010, the Court stated on the record (in the jury‟s absence) that it

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It appears that, at the time of the comments, Juror No. 10 was not yet impaneled on the jury and
thus was also known as (Prospective) Juror No. 42. See Ex. A (RT at 965).
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had received a letter, purportedly written by an anonymous juror. See Ex. A (RT at 892 et seq.).

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The content of the letter was as follows:

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March 10, 2010,

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Dear Honorable,

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All the jurors were instructed not to discuss anything related to our
present courtroom issue but [Juror No. 10] was freely telling his
lady friend about it during lunch last Tuesday [March 2]! He was
too opinionated about how bad the court system has been managed,
and other people around the restaurant tables could also hear him!

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Is it OK to talk about our courtroom issues to just a close friend?
Thank you very much for reading this concern.
Respectfully,
A juror.
Ex. B (CT at 673).
To the parties, the trial court commented on the letter as follows:
I have received in my in-basket in chambers [an] envelope addressed
to me by, allegedly, an anonymous juror. I say “allegedly” because
there is no proof that it‟s from a real juror. I am very concerned
about how I got there, since absolutely no one on my staff, or
anyone who has access to my office, says they had contact with any
juror, nor with the letter. . . .
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[The letter] came during a very narrow window of time on Thursday
afternoon.
I‟m making the letter a part of the record. And it alleges that one of
our prospective – or one of our jury was apparently telling a lady
friend about something having to do with the case, although they
don‟t know anything about the case, since we have only gone
through jury selection – and was opinionated about how bad the
court system has been managed. I don‟t know what that means,
since the letter doesn‟t say.
The letter is dated March 10th, which is interesting, since today is
March the 8th, and the letter was received on March the 4th.
The grammar is poor in the letter. The date it – the date of the letter
is a different font than the actual letter itself.
I don‟t give the letter much credence because of all the above facts,
and because of the way it was delivered. I will note for the record
that I have told this jury a number of times that if they have any
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questions about anything, those questions should be directed to my
bailiff, who has made himself available, to my bailiff or any of my
staff, all of whom have made themselves available. And whoever
delivered this did not avail themselves of that, which also makes me
suspicious of the validity of this, and that it came actually from a
juror.
What I will do is speak with Mr. – the one juror that is named here,
and that‟s the other thing that is puzzling about this. It names the
juror by both first and last names, misspelling the name. The only
time our jurors were named out loud by both first and last names
[was] when my clerk read off those names when they were seated,
and that is the only time. And it‟s not a common name. So in order
for someone to remember that name, they would have had to have a
pretty extraordinary memory, or had been writing the names down,
because our jurors don‟t have notebooks at this point. So that‟s a
little unusual, to say the least, since the name is hardly common.
So what I‟m going to do is inquiry of that juror individually when,
that is named in the letter individually, when they come in at 1:30,
and then move on, depending on what he has to say.
But as I said, because of the content of the letter, as well as the
manner in which I received it, I‟m not putting a whole lot of
credence in it. I am very concerned about how I received it and how
it managed to make it all it [sic] the way into my in-basket in my
private chambers without anyone who validly has access to my
chambers having any knowledge of it, or having any contact with
any of our jurors during that very small window of time when it
appeared there.
Ex. A (RT at 892-94).

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Later that afternoon, the trial court did question Juror No. 10, as promised. The court

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informed Juror No. 10 that it had received information that “you were having a conversation

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during a lunch last Tuesday discussing the court process, and it was with a female friend.” Ex. A

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(RT at 966). Juror No. 10 identified the woman as his wife and stated that (1) “[s]he comes every

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day with me to the court” and that (2) he was just discussing with her “the process in general.

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Nothing specific about the case.” Ex. A (RT at 967). Juror No. 10 elaborated:

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Usually, just about the jury selection process, because that‟s what I
was involved with. You know, about how some people had been
there a week in the main 12, and then all of a sudden they got kicked
out. So it was kind of interesting, you know, that they would be in
the 12 and then out of the 12, so I mentioned that.

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Ex. A (RT at 967). Juror No. 10 also referred to discussion of “a few other things about what

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people do. I mean, you know, one guy works as a math teacher at St. Mary‟s here. My wife went

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to St. Mary‟s in Minnesota. And she even had an application to come here.” Ex. A (RT at 967).
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When the trial court asked if Juror No. 10 had talked about “[a]nything about the case itself

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or anything that we have discussed here in court,” Juror No. 10 responded: “Oh, you know, not to

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Google, not to look into it in the papers. I guess it came out that it was a murder trial. That‟s all.”

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Ex. A (RT at 967). In addition, he “said they asked the question about self-defense. I didn‟t say

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one way or the other what about it. I just said somebody did ask the question about self-defense.

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That‟s all.” Ex. A (RT at 968).

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After the questioning of Juror No. 10, the trial court denied Mr. Farrish‟s motion for a

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mistrial based on the juror‟s comments and further denied Mr. Farrish‟s request that Juror No. 10

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be removed from the jury and an alternate seated instead. The trial court did agree, however, that

admonishment). See Ex. A (RT at 968) (defense counsel asking for an admonishment that

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an admonishment of some kind was necessary (although it disagreed over the content of the

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“whatever happened during voir dire was perfectly legal, and that‟s the way the voir dire goes[;]

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[m]y concern is that he may be holding it against the defense”). The trial court stated:

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[I]t requires an admonishment of all the jurors. I don‟t want to
single him out, because I think that is counterproductive at this
point. We‟re not far enough along where I need to admonish him
individually and alienate him. I don‟t think that he has any way of
attributing what I have inquired about to either side [i.e., prosecution
or defense]. He has no idea where my questions come from.
Ex. A (RT at 969).
When Mr. Farrish expressed concern that the juror‟s comments “were directed to the
defense use of the peremptories,” the trial court responded:
Well, I think both sides left people on for quite a period of time and
then excused them. In fact, the defense passed a number of times
and then the People challenged them and vice versa. . . . So I don‟t
think there‟s any pattern here that can be attributed, and my
questions were very neutral and deliberately neutral so that there
wasn‟t an attribution in terms of my questioning to either side.
At this point he acknowledged that he – of what occurred, which is
what I was interested in. I wanted to, in a very neutral way,
ascertain exactly what happened, what was said, what was not said.
I‟m going to admonish the jurors in a rather strong way. I think they
have seen him come in by himself. I think he got it, since he was
singled out by being hauled in here by himself. I‟m going to bring
all our jurors in. I‟m going to state the admonishment. And it will
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also explain why we‟re going to take a period of time. We‟re going
to be doing other things, they won‟t necessarily know that. And that
will take care of it.

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10

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For the Northern District of California

United States District Court

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13

Ex. A (RT at 969-70).
When the jury returned to the courtroom, the trial court made the following statement to
the jury:
Ladies and gentlemen, before you get comfortable, let me welcome
you back. And let me start out by – this was not how I intended to
start out, but let me start out by talking about an issue that I talked
about a lot last week during jury selection, and it looks like I have to
start out by talking about it again.
I had to start out this afternoon by speaking to one of your number
about our admonishment, my admonishment, not to discuss the case
with anyone. And I‟m going to have to start out again.
I can‟t impress upon you enough and – because this has raised an
issue that I‟m going to have to spend some time before we start the
trial now on this this afternoon.

17

You may not discuss this case with anyone, and even the nature of
the charges, anything that does on in this courtroom. There was an
interesting article in the paper about this this weekend. Cases all
across the country now – or courts all across the country now are
having to admonish jurors for the very first time not to Google, not
to Tweet, not to Face Book, not to blog about the cases that they sit
on. We have never had to do this before. Cases are having to be
tried all over again from scratch, because they‟re being thrown out
of court because of this activity.

18

You saw how long it took to pick a jury. . . .

19

It‟s an unfortunate reality of our world today that there‟s instant . . .
– instant communication. There‟s good parts of that in our world,
but there are also some consequences of that. And the consequences
of that in our world here are huge. And it means that we have to
start over from scratch if people don‟t follow the rules about that.
And that includes when you are not here your discussing this case
with others. And that includes talking about the nature of the case,
the issues that are involved in this case that you have heard about in
this courtroom.

14
15
16

20
21

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23
24
25
26
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28

I don‟t know what else to emphasize to you that you can‟t talk about
those things with your loved ones at home, during our breaks, at
work, at the store, at church, at wherever it is that you spend your
time. And I know it‟s very hard to do. I know how interesting this
stuff is for those who aren‟t here. And I know how persistent people
can be in wanting to know about it.
The best I can tell you is tell them the Judge said no. And
sometimes that shuts it down. Because for them it‟s the Judge said
12

1
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3
4
5
6

no. The answer has to be no, because there‟s just too much at stake
for everybody involved.
I‟m going to start adding to my regular instructions that you can‟t
Google, and you can‟t Tweet, and you . . . – you can‟t Facebook.
You can‟t do any of those things.
When the case is all over, and I have excused you, then you can do
all those things, but not now. . . .
Ex. A (RT at 971-73).

7

The trial court subsequently excused the jury and made the following comment: “All right,

8

our jury has left. From the chagrined look on Juror Number 10‟s face I don‟t think this is going to

9

be an issue anymore.” Ex. A (RT at 973).

10

After the jury returned its verdict, Mr. Farrish moved for a new trial, arguing in part that
the trial court should have investigated the anonymous letter more thoroughly. See Ex. B (CT at

12
For the Northern District of California

United States District Court

11

698); Ex. A (RT at 2614) (“request[ing] at this time that we have an evidentiary hearing to

13

determine, one, who the author of the note was, and, two, whether there was any juror impropriety

14

in the note ending up in the Court‟s inbox”). In response, the trial court noted that there was

15
16
17
18
19
20
21

22

quite a bit of discussion about this on the record after that was
discovered. And frankly, I was not convinced that that necessarily
came from a juror. It appeared in my chambers mysteriously. We
had a lot of discussion about it. And it could have come from a
number of sources, not necessarily a juror. We never discovered the
source of that, and despite the fact that I brought the sheriff‟s
department in to investigate. I was very concerned, because jurors
had absolutely no access to my chambers. There are limited people
who have access to my chambers.
I chose not to highlight it at the time. There‟s a full record of our
discussions about it, and my decisions with regard to how we were
going to handle it. And my decisions at that time stand.
Ex. A (RT at 2620).

23

In the pending habeas petition, Mr. Farrish argues that the trial court‟s actions violated his

24

constitutional rights because the trial court did not investigate whether any other jurors overheard

25

what Juror No. 10 had said and, if so, make an inquiry as to whether that “outside information”

26

affected those jurors‟ impartiality. See, e.g., Am. Pet. at 3 (arguing that “[f]ederal due process . . .

27

requires state courts to conduct sufficient inquiry to determine whether jurors will be impartial

28

despite any information they may have seen, heard, or read about a case”; also invoking the right
13

1

to an impartial jury).
On direct appeal, the state appellate court does not appear to have addressed Mr. Farrish‟s

2
3

argument to the extent it was based on federal law. Rather, the court seems to have focused

4

instead on Mr. Farrish‟s state law argument only. In this regard, the court held that the lower court

5

had not

6
7
8
9

abused its discretion. Even assuming that the note was in fact
written by another juror who overheard Juror No. [10‟s] statements,
there is no evidence that Juror No. [10] shared any “outside
information.” Juror No. [10] told his wife that it was a murder trial
and mentioned that someone asked a question about self-defense.
But, this was information that any juror present during voir dire
would know.

because it summarily denied Mr. Farrish‟s appeal, it did not address with any specificity the merits

12
For the Northern District of California

Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *32. As for the California Supreme Court,

11

United States District Court

10

of Mr. Farrish‟s federal argument.

13

As noted above, when a state court has denied a federal constitutional claim on the merits

14

without explanation, the federal habeas court "must determine what arguments or theories

15

supported or . . . could have supported, the state court's decision; and then it must ask whether it is

16

possible fairminded jurists could disagree that those arguments or theories are inconsistent with

17

the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

18

Here, the government correctly notes that there is no Supreme Court precedent holding that

19

a trial court has an obligation to hold a hearing on potential juror bias anytime an issue regarding

20

impartiality is raised. See Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005) (stating that “the

21

Supreme Court has not yet decided whether due process requires a trial court to hold a hearing sua

22

sponte whenever evidence of juror bias comes to light”). Indeed, the Ninth Circuit has expressly

23

stated that prior Supreme Court cases “do not stand for the proposition that any time evidence of

24

juror bias comes to light, due process requires the trial court to question the jurors alleged to have

25

bias.‟ Rather, we concluded that when read in combination, these [prior Supreme Court] cases

26

provide „a flexible rule.‟” Id. at 1155 (emphasis added); see also Tracey v. Palmateer, 341 F.3d

27

1037, 1044 (9th Cir. 2003) (stating that “„[a]n evidentiary hearing is not mandated every time

28

there is an allegation of jury misconduct or bias[;] [r]ather, in determining whether a hearing must
14

1

be held, the court must consider the content of the allegations, the seriousness of the alleged

2

misconduct or bias, and the credibility of the source‟”).

3

Especially given the flexible approach, this Court cannot say that it was objectively

4

unreasonable for the trial court not to conduct an inquiry into whether other jurors overheard Juror

5

No. 10‟s comments. Concern about juror impartiality was significantly undercut by several facts:

6

(1) that Juror No. 10‟s statements did not constitute “outside information” as they referred to

7

matters to which the other jurors were already exposed to (including but not limited to the use of

8

peremptories) and (2) that Juror No. 10‟s statements were not about the merits of the case (as

9

underscored by the fact that they were made while jury selection was still taking place).

limited editorializing, see Ex. B (CT at 673) (letter, claiming that Juror No. 10 “was too

12
For the Northern District of California

Moreover, even if the anonymous letter were to be credited, at best, Juror No. 10 had engaged in

11

United States District Court

10

opinionated about how bad the court system has been managed”), and that was only about the

13

court process itself, and not the merits of the case. Accordingly, Mr. Farrish‟s request for habeas

14

relief, as related to Juror No. 10‟s statements, is denied.

15

C.

16

Prosecutor‟s Statements Regarding Witness Credibility
Mr. Farrish argues next that he is entitled to habeas relief because his right to due process

17

was violated when the prosecutor (1) improperly vouched for the credibility of Mr. Smith (a

18

prosecution witness and alleged victim with respect to the attempted murder charge) and (2)

19

improperly expressed his opinion that Mr. Broadway (a defense witness) was lying. As discussed

20

below, the Court does not find either argument persuasive.
Mr. Smith‟s Credibility

21

1.

22

With respect to Mr. Smith‟s credibility, Mr. Farrish criticizes the prosecutor for comments

23

made during both the opening statement and closing argument. In his opening statement, for

24

example, the prosecutor discussed the video-recorded interview of Mr. Smith, taken on the day of

25

the shooting:

26
27
28

Needless to say this was an important person for the police to
interview. So they take him back to the Richmond police station,
where he is asked to give them the details of what had happened. I
wish it was not necessary, but unfortunately in this area of town it is
necessary, to surreptitiously videotape folks who are witnesses. And
15

1
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3

this is no exception. [Mr.] Smith was videotaped as he was giving
his statement to the Richmond police department.
And he tells them pretty much a synopsis of exactly what I have told
you. There‟s no fabricating, there‟s no lying, there‟s no need to pull
it out of him, he‟s obviously shook.

4

Ex. A (RT at 1019-20). According to Mr. Farrish, this comment constituted improper vouching

5

for Mr. Smith‟s credibility in violation of Mr. Farrish‟s due process rights.

6

Then, during closing argument, the prosecutor again focused on the video-recorded

7

interview – especially in light of Mr. Smith‟s trial testimony where he claimed that he did not

8

remember significant details on the day of the shooting, including who the shooter was:

9
10

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For the Northern District of California

United States District Court

11

13
14
15

What about [Mr.] Smith? I mean, he‟s an actual witness, right?
Okay. Certainly, we want to hear what he has to say. [Mr.] Smith.
Before we just write off [Mr.] Smith, let‟s understand [Mr.] Smith
for a second. There is no way that you‟re going to get [Mr.] Smith
to come in here to court and give you any kind of cooperative
answers, as long as it‟s a public courtroom and you have got
Dominique and D Dog and the boys [i.e., friends and/or associates
of Mr. Farrish] all hanging out in the back, there‟s just no way. And
I understand that. . . . There‟s a reason why the kid has to be taken
down there [to the police station] in handcuffs. There‟s a reason
why they videotape it. The rule of law is that we have to put [Mr.]
Smith on and let him say what he‟s going to say, and then, and only
then, can we show you the truth in that videotape.

16

Ex. A (RT at 2474-75). When defense counsel objected, the trial court overruled the objection

17

but, nevertheless, instructed the jury that “this is closing argument. As I have explained to you,

18

the attorneys argue their cases. The arguments aren‟t evidence.” Ex. A (RT at 2475).

19
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21

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25
26
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28

The prosecutor then continued:
If you look at his videotape he is non-reflective. It is uncontrived.
Words are not being put into his mouth. He is giving a narrative
response, and he‟s giving a response at a point when he is
emotional. There isn‟t time for him to think up a story. Two years
haven‟t gone by.
Ex. A (RT at 2475). The prosecutor added:
Where we take witnesses that we have a pretty good idea, we know
that, come down the line, they‟re going to be have a lot of pressure,
and quite frankly, they‟re going to be uncooperative. So they‟re
videotaped. And when they‟re videotaped we put them on the stand
and then we play the videotape.
. . . It‟s the videotape that you need to look at. And it‟s in evidence.
But if you look at the video you can see, as I said, that he‟s
uncontrived. He‟s not spinning his wheels. He‟s not thinking up
16

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answers. It‟s essentially unreflective. And I put to you that if [Mr.]
Smith had a gun [on that day], in reality, if we were talking about
real reality, [Mr.] Smith never would have come back. And [Mr.]
Smith never would have talked to the police. And if he had a gun
you would have seen him acting the fool on that videotape.
But no, he did come back, and he gave answers in a narrative form
by asking him what happened. And if you look at it, if you look at
it, you will see at some point Detective Johansen asked him, did
[Mr. Cole] have a gun? Now, [Mr. Smith] doesn‟t know what‟s out
there. [He] doesn‟t know what they found. But he asked – he was
asked, did [Mr. Cole] have a gun. He said, no, he didn‟t have a gun,
he had a bullet.
And then, quite honestly, hiding nothing, he is frank in saying, yeah,
[Mr. Cole] got arrested a couple of times with guns. And he stopped
carrying them, because he didn‟t want to get that trigger locked or
something. That‟s right out of his mouth. So he carried the bullet.
Ex. A (RT at 2475).
On direct appeal, Mr. Farrish argued that the above comments by the prosecutor

12
For the Northern District of California

United States District Court

11

constituted improper vouching for the credibility of Mr. Smith in violation of Mr. Farrish‟s due

13

process rights. The state appellate court disagreed, stating that

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[t]he prosecutor did not improperly vouch for [Mr.] Smith. Rather,
the prosecutor simply asked the jury to infer that [Mr.] Smith‟s
statements to police were credible because of [Mr.] Smith‟s
observable demeanor and the fact that he made them so shortly after
the shooting. The prosecutor also asked the jury to understand [Mr.]
Smith‟s trial testimony, which did not incriminate [Mr. Farrish], as
explained by the fact that his police interview had been circulating
in the neighborhood. The prosecutor did not suggest that his belief,
that [Mr.] Smith told the police the truth, was based on his own
personal investigation rather than the evidence presented at trial.
The challenged remarks were fair comment on the evidence . . . .
Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *41.
In evaluating the state appellate court‟s decision, the Court takes into account that, under

22

Supreme Court authority, a prosecutor can engage in “improper advocacy” and that argument must

23

be confined to “record evidence.” United States v. Young, 470 U.S. 1, 7, 10 (1985) (noting that

24

“[p]rosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on

25

the defendant‟s guilt and offering unsolicited personal views on the evidence”). Thus, the Ninth

26

Circuit has explained that, while

27
28

prosecutors must have reasonable latitude to fashion closing
arguments, and thus can argue reasonable inferences based on the
evidence, including that one of the two sides is lying[,] . . . a
17

prosecutorial statement may nevertheless be considered
impermissible vouching if it places the prestige of the government
behind the witness by providing personal assurances of a witness‟s
veracity.

1
2
3

Vouching of that sort is dangerous precisely because a jury may be
inclined to give weight to the prosecutor‟s opinion in assessing the
credibility of witnesses, instead of making the independent judgment
of credibility to which the defendant is entitled.

4
5

omitted and emphasis added).2 Nevertheless, the Supreme Court has underscored that, to violate

8

due process, a prosecutor‟s remarks must “„so infect[] the trial with unfairness as to make the

9

resulting conviction a denial of due process.‟” Darden v. Wainwright, 477 U.S. 168, 181 (1986).

10

In the instant case, it was not unreasonable for the state court to conclude that the

11

prosecutor did not even put the prestige of the government behind Mr. Smith‟s police interview

12
For the Northern District of California

United States v. Weatherspoon, 410 F.3d 1142, 1144 (9th Cir. 2005) (internal quotation marks

7

United States District Court

6

testimony (as opposed to his trial testimony); instead, the prosecutor argued that the jury should

13

credit Mr. Smith‟s police interview testimony (over his trial testimony) based on evidence

14

presented at trial – e.g., the fact that Mr. Smith agreed to be interviewed by the police in the first

15

place, how he acted during the interview, and the fact that the interview close in time to the

16

shooting. Moreover, the prosecution did not imply it knew facts beyond those presented to the

17

jury; thus, the prosecutor did not “infect the trial with unfairness.” Under these circumstances,

18

habeas relief is not warranted.
Mr. Broadway‟s Credibility

19

2.

20

With respect to Mr. Broadway (a defense witness), Mr. Farrish contends that the

21

prosecutor engaged in misconduct by improperly opining on his lack of credibility during closing

22

argument. The prosecutor made the following comments regarding Mr. Broadway during his

23

opening closing argument:
Well, let‟s just look at [Mr.] Broadway for a second. [Mr.]
Broadway‟s testimony is tailored. Tailored in this sense means that
he‟s geared his testimony to fit. I find it incredible, absolutely

24
25
26
2

27
28

Also, a prosecutor‟s vouching for the credibility of a witness “can convey the impression that
evidence not presented to the jury, but known to the prosecutor, supports the charges against the
defendant.” Weatherspoon, 410 F.3d at 1147-48 (internal quotation marks omitted and emphasis
added).
18

incredible, that somebody can come in here and claim that they saw
one thing [i.e., Mr. Smith displaying a gun], and then have no
perception, no witnessing of anything else. And that one thing is the
one thing that they want to use to help the defendant. What am I
talking about? Well, he says, I saw [Mr.] Smith with a gun. Now,
we had a big demonstration. He had it like this. Wow, sounds like
he‟s a pretty perceptive guy. He has got a good memory. Really.
Because according to him he ducks down in the wheel well and has
no memory of anything whatsoever after that. Really? . . . .

1
2
3
4
5

. . . . Now, is that a [sic] end all, be all point? No. Witnesses can
forget and get things wrong and still have an innocent
misrecollection. Is that the case with [Mr.] Broadway? Absolutely
not. [Mr.] Broadway wasn‟t even in the car. [Mr.] Broadway
doesn‟t even know how the incident went down. [Mr.] Broadway is
coming in here and he‟s going to say one thing, and then to insulate
himself from being able to be cross-examined, to insulate himself
from how stupid his story is, he‟s going to say, I don‟t know
anything after that. Great. Except that is not believable.
There is an instruction where the Judge advises that if a witness has
been willfully false you should disregard him, unless you believe
from all the circumstances other parts of his testimony. [Mr.]
Broadway has been more than willfully false. [Mr.] Broadway is
lying.

6
7
8
9
10

12
For the Northern District of California

United States District Court

11

13
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15
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20
21

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28

Ex. A (RT at 2503-04).
Defense counsel then gave her closing argument and, with respect to Mr. Broadway, stated
as follows:
[Mr.] Broadway. Let‟s talk about him for a second. He came here
to tell you that [Mr.[ Smith had a gun. You are to consider all facts
and circumstances surrounding someone‟s testimony when
evaluating that testimony. [Mr.] Smith said in his taped interview
that there was a passenger in the car.
. . . . Do you think that anybody who wasn’t telling the truth would
subject themselves to having the prosecution suggest they were an
aider and abettor? Subject themselves to criminal prosecution for
murder? To come to court and lie? No.
[Mr.] Broadway risked prosecution to come here and tell you what
he saw. Now, nobody would subject themselves. You had heard ad
nauseam, ad nauseam, nobody will come testify, snitch. Nobody
will come testify. That‟s right, because they‟re going to be told
they‟re aiders and abettors. They could be threatened with
prosecution. And if they‟re not threatened with prosecution, they‟re
going to be killed from the streets. Those are the risks that [Mr.]
Broadway came to tell the truth. You can take that into account.
Ex. A (RT at 2517-18) (emphasis added).
In his rebuttal closing argument, the prosecutor responded to the above defense comments
on Mr. Broadway. The prosecutor stated:
19

Let‟s look at a couple of things that the defense attorney said for a
second.

1
2

First of all, Mr. Broadway. Mr. Broadway comes in here, and we
have some high theater here where I‟m asking him a question. It‟s
the same question I have been asking him, that is, tell us something,
besides your one perception that [Mr.] Smith had a gun. And he
says, Aw, I want to talk to my lawyer. And his court appointed
counsel walks up there and we have a little talk. That‟s some high
theater right there.

3
4
5
6

The fact of the matter is the lawyer knows, [Mr.] Broadway knows
that there‟s no way [Mr.] Broadway can ever be prosecuted. You
know why? Because ethically we can’t prosecute him. You know
why? Because [Mr.] Broadway is lying. I can’t prosecute
somebody that I know is lying.

7
8
9
10

Ex. A (RT at 2542) (emphasis added).
Defense counsel objected, stating that the prosecutor “can‟t state his opinion of

12
For the Northern District of California

United States District Court

11

somebody‟s truth or veracity. That‟s for the jury and it‟s misconduct.” Ex. A (RT at 2542).

13

Although the trial court overruled the objection, it instructed that, “as I have explained . . . , this is

14

closing argument. You will determine what the facts are. I have given you the law that applies in

15

this case.” Ex. A (RT at 2542-43).
The prosecutor then continued:

16
17

If ethically I would put somebody on trial that I did not believe
committed a crime, not only would that be something horrible for
me to do, but let‟s figure out what [Mr.] Broadway‟s defense
attorney would say. Wow, he was lying to cover up for his buddy.
And you know what, that would be a pretty good defense, wouldn‟t
it?

18
19
20
21

Ex. A (RT at 2543).3
On direct appeal, Mr. Farrish argued that the prosecutor‟s statements regarding Mr.

22
23

Broadway constituted misconduct. The state appellate court acknowledged that the prosecutor‟s

24

statements about Mr. Broadway were “more troubling” compared to his statements about Mr.

25

Smith. Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *39. Notably, the prosecutor had not

26
3

27
28

In his amended petition, Mr. Farrish asserts that the prosecutor was saying that “he could not
prosecute defense witness [Mr.] Broadway for perjury.” Am. Pet. at 4. However, as indicated by
the above excerpts from the record, the prosecutor was clearly referring to prosecution of Mr.
Broadway for aiding and abetting murder.
20

1

simply asked the jury to infer that Mr. Broadway “was lying because of the inherent incredibility

2

of [his] testimony or because [he] was a friend of [Mr. Farrish”; rather, the prosecutor went

3

“beyond” that and told the jury that

4
5
6
7
8
9

he could not ethically prosecute [Mr.] Broadway as an aider and
abettor to murder because he did not believe the testimony.
Although that opinion may have been based on the evidence, the
problem is that the prosecutor was, in effect, invoking the reputation
of the district attorney’s office to assure the jury that he would not
prosecute the innocent.
Id. at *41 (emphasis added).
The court, however, noted that the situation before it was different from that presented in

prestige of her office to implicitly assure the jury that the defendant [i.e., not a witness] would not

12
For the Northern District of California

another case – where prosecutorial misconduct was found because (1) “the prosecutor invoked the

11

United States District Court

10

have been charged without sufficient evidence of his guilt” and (2) “the prosecutor made more

13

than just the one suggestion to the jury that she had additional evidence of [the defendant‟s] guilt

14

that had not been presented.” Id. at *43 (emphasis in original and added). Nevertheless, the state

15

appellate court stated, “[e]ven if we were to accept that the prosecutor‟s remarks in this case were

16

misconduct, they were not prejudicial.” Id. at *44. First, the trial court “admonished the jury to

17

decide the case on the evidence.” Id. Second, it was “not reasonably probable that a result more

18

favorable to [Mr.] Farrish would have been reached if the prosecutor had not engaged in [the]

19

single instance of misconduct” – not only because Mr. Broadway‟s testimony was “inherently

20

suspect when he asserted that he could remember essentially nothing other than [Mr.] Smith

21

having a gun” but also because Mr. Smith‟s contrary testimony “was corroborated by the physical

22

evidence [i.e., no gun was found near Mr. Cole‟s body or on the route where he and Mr. Smith

23

ran] and the testimony of [two third-party eyewitnesses] that neither [Mr.] Smith [nor Mr. Cole]

24

had a gun.” Id. at *45-56.

25
26
27
28

The state appellate court‟s conclusion that any prosecutorial misconduct was not
prejudicial was not unreasonable. As the government points out, a prosecutor‟s
“[i]mproper argument does not, per se, violate a defendant‟s
constitutional rights.” “[I]t is not enough that the prosecutor‟s
remarks were undesirable or even universally condemned.” Rather,
21

“[t]he relevant question is whether the prosecutors‟ comments „so
infected the trial with unfairness as to make the resulting conviction
a denial of due process.‟”

1
2
3

Runningeagle v. Ryan, 686 F.3d 758, 781 (9th Cir. 2012). In Runningeagle, the Ninth Circuit took

4

note of a Supreme Court case (Darden, 477 U.S. at 168) which held that improper statements by a

5

prosecutor did not deprive the defendant of a fair trial “in part because of the substantial evidence

6

against [the defendant], and because the trial court instructed the jury that the arguments made by

7

counsel were not evidence.” Runnineagle, 686 F.3d at 781. Here, there was an admonition by the

8

trial court and, more important, there was substantial evidence against Mr. Farrish, most notably

9

(as the state appellate court underscored) independent evidence that corroborated Mr. Smith‟s
version of the events (as expressed during the police interview) over Mr. Broadway‟s.

11

D.

Evidence of Third-Party Threats Made to Prosecution Witnesses
According to Mr. Farrish, habeas relief is also warranted because his due process rights

12
For the Northern District of California

United States District Court

10

13

were violated when the trial court failed to provide certain instructions to the jury on how to

14

evaluate evidence of third-party threats against prosecution witnesses.
Several prosecution witnesses discussed or referenced threats in their trial testimony. For

15
16

example:

17



Mr. Smith. Mr. Smith testified, inter alia, that a copy of the police report on the shooting

18

– which had his name on it – was given to him by somebody on the street. See Ex. A (RT

19

at 1089). He testified that it made him “[k]ind of angry” to get the police report from

20

somebody on the street. Ex. A (RT at 1089). Mr. Smith equivocated as to whether the fact

21

of his testifying made him worried about his family‟s safety, see Ex. A (RT at 1090, 1092)

22

(at first, stating that “I worry about it, but I don‟t – I don‟t see nothing really – no real

23

punishment happening towards them that I would be worried about”; later admitting that

24

he told the police that he could not risk his family); however, he conceded that some

25

people were not “coming around” him because of the police report and that he was worried

26

about people knowing that he was testifying. See Ex. A (RT at 1090-92). When defense

27

counsel objected to this line of questioning, the trial court overruled the objection, stating

28

that “[t]his goes to attitude towards testifying.” Ex. A (RT at 1089); see also Ex. A (RT at
22

1

1090) (“Goes to attitude toward testifying.”). Mr. Smith denied that anyone had actually

2

threatened him because he was testifying. See Ex. A (RT at 1092).

3



Ms. McElveen (Mr. Cole’s mother). Ms. McElveen testified about, inter alia, animosity

4

between her family and Mr. Farrish‟s (including their circle of friends). For example, in

5

2005, when court proceedings were ongoing against Joe (Mr. Farrish‟s brother) for his

6

involvement in the murder of Mr. Narcisse, there was an incident outside the courtroom in

7

which Mr. Cole “was called a snitch, and the guys [about fifteen total] were trying to jump

8

him and we got into verbal confrontations.” Ex. A (RT at 1156). The person who called

9

Mr. Cole a snitch was a man named Dominic. See Ex. A (RT at 1157). Both Dominic and

Ms. McElveen further testified that, sometime in 2008, apparently while court proceedings

12
For the Northern District of California

Mr. Farrish were involved with the “jumping” of Mr. Cole. See Ex. A (RT at 1157-59).

11

United States District Court

10

were ongoing against Mr. Farrish, Dominic threatened her, saying that “that‟s what my son

13

get, the nigger is six feet under and your ass is going to be six feet under also.” Ex. A (RT

14

at 1161). Dominic was in the courtroom while Ms. McElveen was testifying. See Ex. A

15

(RT at 1159-60). Finally, Ms. McElveen testified that she had had a conversation with Mr.

16

Smith prior to trial during which he stated that he did not want to testify because a police

17

report “had gotten out into the street and [was] circulating around [the neighborhood].”

18

Ex. A (RT at 1168). The trial court specified that Ms. McElveen‟s testimony about Mr.

19

Smith was “merely . . . evidence of Mr. Smith‟s state of mind and his attitude towards

20

testifying. For that purpose only.” Ex. A (RT at 1167).

21



Tavani (Mr. Cole’s brother). Tavani testified, inter alia, that he had received threats

22

regarding his testifying in the case: “I received phone calls [about three] saying I‟d be

23

killed.” Ex. A (RT at 1435). He also testified that he reported the calls to the District

24

Attorney‟s Office. See Ex. A (RT at 1436). The trial court instructed that jury that “[t]his

25

testimony . . . goes to this witness‟s attitude towards testifying, not necessarily for the truth

26

of the statements, but as to the witness‟s attitude towards testifying and coming to court.”

27

Ex. A (RT at 1435). Tavani clarified that Mr. Farrish himself had never threatened him.

28

See Ex. A (RT at 1444).
23

According to Mr. Farrish, “the jury should have been instructed that the evidence [of]

1
2

threats could only be considered for [the] purpose” of “explain[ing] the prosecution witnesses‟

3

reluctance to testify.” Am. Pet. at 7. Mr. Farrish contends that, without a limiting instruction, “the

4

jurors would probably have inferred that [he] had directed the . . . attempts to intimidate witnesses

5

and suppress their testimony, an improper purpose absent evidence to that effect.” Am. Pet. at 7.

6

Mr. Farrish further contends that a certain instruction, CALCRIM No. 371, Alternative C, 4 should

7

have been given to the jury, as that instruction informs the jury that “absent evidence that [a

8

defendant] knew of or approved the suppression attempts by third persons, the jury could not use

9

that testimony against [the defendant],” in particular, “to infer a consciousness of guilt from such

10

threats.” Am. Pet. at 8.
On direct appeal, the state appellate court did not find Mr. Farrish‟s argument compelling,

12
For the Northern District of California

United States District Court

11

explaining that

13

no one requested that the jury be instructed as to when
consciousness of guilty could be inferred from attempts to suppress
evidence. Such a purpose was never suggested by the prosecutor.
Instead, the trial court explained to the jury, on several occasions,
that such evidence was only to be used to help explain the
witnesses‟ state of mind.

14
15
16
17

Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *51. The court acknowledged that, “[o]n one

18

occasion, when [Ms.] McElveen testified regarding Dominic‟s threat to her, the jury was not

19

immediately admonished regarding the limited purpose for which such testimony could be

20

considered.” Id. at *52. But the court concluded that, “even if this constituted error, any such

21

error was harmless” because “the case against [Mr. Farrish] was strong. It is not reasonably

22
23
24
25
26
27
28

4

CALCRIM No. 371, Alternative C, provide as follows:
If someone other than the defendant tried to create false evidence,
provide false testimony, or conceal or destroy evidence, that
conduct may show the defendant was aware of (his/her) guilt, but
only if the defendant was present and knew about that conduct, or, if
not present, authorized the other person’s actions. It is up to you to
decide the meaning and importance of this evidence. However,
evidence of such conduct cannot prove guilt by itself.

1-300 CALCRIM 371 (emphasis added).
24

1

probable the jury would have reached a different verdict absent the error.” Id.
The Court is not unsympathetic to Mr. Farrish‟s contention that the failure to instruct along

2
3

the lines of CALCRIM No. 371, Alternative C, was problematic, particularly with respect to Ms.

4

McElveen‟s testimony that a specific person – Dominic – had threatened her in or about 2008.

5

Compare Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *51 (discussing state court opinion

6

where threat was made by an unidentified person). The fact that Dominic was apparently a good

7

friend of Mr. Farrish, and one who had previously engaged in joint effort with Mr. Farrish in

8

“jumping” Mr. Cole in 2005, might lead to an inference that the 2008 threat made by Dominic was

9

at the behest of Mr. Farrish. Moreover, even the state appellate court noted that there was no

10

limiting instruction by the trial court with respect to this specific testimony by Ms. McElveen.
Nevertheless, under the AEDPA standard, the Court must evaluate the state appellate

12
For the Northern District of California

United States District Court

11

court‟s conclusion for unreasonableness, and, here, it was not objectively unreasonable for the

13

state appellate court to ultimately conclude that, even if there were a due process violation, the

14

error was harmless because the evidence against Mr. Farrish was substantial. Under Brecht v.

15

Abrahamson, 507 U.S. 619 (1993), habeas relief is proper “only if the failure to give the . . .

16

instruction „had a substantial and injurious effect or influence in determining the jury‟s verdict.‟”

17

Id. at 637; cf. Clark v. Brown, 442 F.3d 708, 726 (9th Cir. 2006) (concluding that the failure to

18

give a jury instruction violated due process but asking whether the violation was “harmless”). As

19

indicated above, Mr. Farrish‟s primary defense at trial was self-defense but that argument was

20

severely undercut by the testimony of Mr. Smith, who testified that neither he nor Mr. Cole was

21

carrying a weapon at the time, and Mr. Smith‟s testimony was corroborated both by the physical

22

evidence (i.e., no gun was found) as well as the testimony of two independent third-party

23

eyewitnesses.

24

E.

25

Character Evidence
Mr. Farrish asserts that habeas relief is warranted because his rights to due process and a

26

fair trial were violated when the trial court erroneously instructed the jury that character evidence

27

could be used as evidence of propensity.

28

Mr. Farrish‟s argument relates to California Evidence Code §§ 1101 and 1103.
25

1



Section 1101 provides in relevant part that, “[e]xcept as provided in this section and in

2

Sections 1102, 1103, 1108, and 1109, evidence of a person‟s character or a trait of his or

3

her character (whether in the form of an opinion, evidence of reputation, or evidence of

4

specific instances of his or her conduct) is inadmissible when offered to prove his or her

5

conduct on a specified occasion.” Cal. Evid. Code § 1101. In other words, “[e]vidence of

6

a person‟s character, also known as propensity evidence, is inadmissible to prove conduct

7

in conformity with that character trait.” People v. Villatoro, 54 Cal. 4th 1152, 1170 (2012)

8

(Corrigan, J., dissenting); see also People v. Carter, 36 Cal. 4th 1114, 1147 (2005) (stating

9

that “[c]haracter evidence is not admissible to show conduct on a specific occasion[;] [t]his
type of evidence sometimes is referred to as evidence of criminal disposition or

11

propensity”).

12
For the Northern District of California

United States District Court

10

13
14



Section 1103 is one of the exceptions identified in § 1101. It has two relevant parts: one
related to a victim of a crime and one related to the accused of a crime.
o Section 1103(a) provides in relevant part that, “[i]n a criminal action, evidence of

15

the character or a trait of character (in the form of an opinion, evidence of

16

reputation, or evidence of specific instances of conduct) of the victim of the crime

17

for which the defendant is being prosecuted is not made inadmissible by Section

18

1101 if the evidence is,” e.g., “[o]ffered by the defendant to prove conduct of the

19

victim in conformity with the character or trait of character. Cal. Evid. Code §

20

1103(a)(1).

21

o In turn, under § 1103(b), if “evidence that the victim had a character for violence or

22

a trait of character tending to show violence has been adduced by the defendant

23

under paragraph (a) of subdivision (a),” then “evidence of the defendant’s character

24

for violence or trait of character for violence (in the form of an opinion, evidence of

25

reputation, or evidence of specific instances of conduct) is not made inadmissible

26

by Section 1101 if the evidence is offered by the prosecution to prove conduct of

27

the defendant in conformity with the character or trait of character.” Id. § 1103(b).

28

In the instant case, Mr. Farrish offered evidence that Mr. Cole, in particular, had a
26

1

character for violence – e.g., that, in February 2008, Mr. Farrish and his girlfriend were sitting in

2

front of his godmother‟s house on Groom when a car drove by, which Mr. Cole was driving, and

3

shots were fired at the house.
Based on the defense evidence of Mr. Cole‟s character for violence, the prosecution,

4

specifically, that, in 2006, Mr. Farrish pulled a gun on a third party as part of a robbery undertaken

7

with three other people. Before the prosecution introduced this evidence, the trial court instructed

8

that the evidence was for a limited purpose only and that it would later give instructions as to what

9

that limited purpose was. See Ex. A (RT at 2265, 2292). However, the trial court failed to give

10

such an instruction, thus prompting the jury to ask the court about the limited purpose during its

11

deliberations. See Ex. B (CT at 658) (jury question) (“On 3/25, during rebuttal case, in morning,

12
For the Northern District of California

relying on § 1103(b), introduced evidence of Mr. Farrish‟s character for violence, more

6

United States District Court

5

Josh Atkinson, Walter Welsch, & Hill testified about S. Farrish pulling gun at a party. The Judge

13

indicated this testimony was for a limited purpose, which she would explain later. She never did.

14

For what purpose was this testimony allowed?”).
Because the judge presiding over the trial was not available, another judge was called upon

15
16

to answer the jury‟s question. The judge responded to the question with an instruction that was a

17

modified version of CALCRIM No. 1191, which is the pattern instruction on evidence of prior sex

18

crimes admitted under California Evidence Code § 1108.5 The instruction given to the jury was as

19
5

20
21

22
23
24
25
26
27
28

The current version of CALMCRIM No. 1191A, which addresses evidence of an uncharged sex
offense, provides as follows:
The People presented evidence that the defendant committed the
crime[s] of <insert description of offense[s]> that (was/were) not
charged in this case. (This/These) crime[s] (is/are) defined for you
in these instructions.
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed
the uncharged offense[s]. Proof by a preponderance of the evidence
is a different burden of proof from proof beyond a reasonable doubt.
A fact is proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard
this evidence entirely.
27

1
2
3
4
5
6
7
8
9
10

12
For the Northern District of California

United States District Court

11

13
14

follows:
The People presented evidence that the defendant has a violent
character.
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact has a
character for violence. Proof by a preponderance of the evidence is
a different burden of proof from proof beyond a reasonable doubt.
A fact is proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard
this evidence entirely.
If you decide that the defendant has a violent character, you may,
but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit crimes of violence,
and based on that decision, also conclude that the defendant was
likely to commit and did commit murder and attempted murder as
charged here. If you conclude that the defendant has a character for
violence, that conclusion is only one factor to consider along with
all the other evidence. It is not sufficient by itself to prove that the
defendant is guilty or murder or attempted murder. The People must
still prove each charge and allegation beyond a reasonable doubt.
Ex. B (CT at 654).

15

The state appellate court rejected Mr. Farrish‟s contention, on direct appeal, that the above

16

instruction violated his right to due process. It cited in support a decision issued by the California

17

Supreme Court, in which that court stated: “„We cannot say that, in providing for the jury to obtain

18

a balanced view of the possible violent tendencies of both the victim and the defendant, the

19

Legislature ran afoul of any fundamental conception of justice embodied in the federal

20

Constitution‟” – particularly because the defendant has “„the choice whether evidence of his or her

21

22
23
24
25
26
27
28

If you decide that the defendant committed the uncharged
offense[s], you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit
sexual offenses, and based on that decision, also conclude that the
defendant was likely to commit [and did commit] <insert charged
sex offense[s]>, as charged here. If you conclude that the defendant
committed the uncharged offense[s], that conclusion is only one
factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of <insert
charged sex offense[s]>. The People must still prove (the/each)
(charge/ [and] allegation) beyond a reasonable doubt.
1-1000 CALCRIM 1191A.
28

1

violent propensity will be admissible.‟” Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *64

2

(quoting People v. Fuiava, 53 Cal. 4th 622 (2012)). Furthermore, the defendant‟s character for

3

violence “must be relevant to a material issue in the trial,” id., and a trial court retained discretion

4

to bar such character evidence for undue prejudice. See id. at *65. The state appellate court also

5

underscored that “the jury was instructed that evidence of [Mr. Farrish‟s] violent character was not

6

sufficient by itself to prove [his] commission of the charged offenses, and that the People must

7

still prove each charge beyond a reasonable doubt,” and so “the jury could not have interpreted the

8

instructions as authorizing a guilty verdict based solely on proof of the uncharged conduct. Nor

9

could a reasonable jury have interpreted the instructions as authorizing conviction of the charged

10

offenses based on a preponderance of the evidence standard.” Id. at *66-67.
The state appellate court‟s conclusion was not objectively unreasonable. This is especially

12
For the Northern District of California

United States District Court

11

so because “the United States Supreme Court has never held that the introduction of

13

propensity . . . evidence violates due process.” Maldonado v. Frauenheim, No. 15-cv-03002-

14

EMC, 2017 U.S. Dist. LEXIS 47059, at *46 (N.D. Cal. Mar. 29, 2017) (citing various Ninth

15

Circuit cases relying on Estelle v. McGuire, 502 U.S. 62 (1991)); see also Alberni v. McDaniel,

16

458 F.3d 860, 866-67 (9th Cir. 2006) (stating that “[w]e cannot conclude that the Nevada Supreme

17

Court acted in an objectively unreasonable manner in concluding that the propensity evidence

18

introduced against [the defendant] did not violate due process, given that Estelle expressly left this

19

issue an „open question‟”). Moreover, it was not unreasonable for the state appellate court to find

20

no due process violation given that – as the court itself noted – evidence as to the defendant‟s

21

character for violence could be admitted only if the defendant first chose to implicate the victim‟s

22

character for violence. Accordingly, habeas relief on the ground of an allegedly improper

23

instruction on propensity evidence is not warranted.

24

F.

25

No Instruction on “Unanimity of Act”
Mr. Farrish‟s next contention is that he is entitled to habeas relief because his rights to due

26

process and jury unanimity were violated when the trial court refused to give an instruction on

27

“unanimity of act.” The instruction that Mr. Farrish asked the trial court to give was CALCRIM

28

No. 3500 which provides as follows:
29

1

The defendant is charged with <insert description of alleged
offense> [in Count ] [sometime during the period of ____ to ____].

2

The People have presented evidence of more than one act to prove
that the defendant committed this offense. You must not find the
defendant guilty unless you all agree that the People have proved
that the defendant committed at least one of these acts and you all
agree on which act (he/she) committed.

3
4
5
6

2-3500 CALCRIM 3500.
Mr. Farrish asserts that this instruction was warranted based on the following:

7
8

(1) There were two possible crimes scenes – i.e., the fatal shot could have been fired at Groom

9

(where the shooting began) or it could have been fired at Gilma (where Mr. Cole‟s body
was eventually found).6

10

(2) Based on Mr. Broadway‟s testimony that Mr. Smith displayed a gun first, Mr. Farrish

12
For the Northern District of California

United States District Court

11

“likely had the right to fire in self-defense at the Groom crime scene,” but not at the Gilma

13

crime scene where “the evidence indicated that [Mr.] Cole was running away while being

14

fired upon.” Am. Pet. at 12.
(3) Therefore, it is possible that some jurors found Mr. Farrish guilty because the fatal shot

15
16

was fired at Groom and Mr. Farrish was not acting in self defense, while other jurors found

17

Mr. Farrish guilty because, even though Mr. Farrish was acting in self-defense at Groom,

18

he fired the fatal shot at Gilma while Mr. Cole was running away (with no self-defense

19

option being available here).7

20

As the trial court noted, Mr. Farrish‟s basic position here is that the jury had to be unanimous

21

about which bullet caused Mr. Cole‟s death – i.e., one shot at Groom or one shot at Gilma. See

22

Ex. A (RT at 2368-69).
The state appellate court was not persuaded by Mr. Farrish‟s argument. It

23
24
25
26
27
28

6

According to Mr. Cole, the fatal shot could have been fired at Groom since a jury could have
found that Mr. Cole was shot there and then “managed to run 217 feet to Gilma and climb over a
fence before dying.” Am. Pet. at 12.
7

Given this argument, Mr. Farrish seems to be challenging here only the charge of murder (as to
Mr. Cole) only and not the charged of attempted murder (as to Mr. Smith). This is also supported
by the appellate brief that he filed in state court. See Ex. D (Op. App. Br. at 91).
30

1
2
3
4
5
6
7
8

agreed with the trial court that the jury was not required to agree
unanimously on which bullet killed [Mr. Cole]. There were not two
distinct murders. Although there were two crime scenes, there was
only a single discrete criminal event – the murder of [Mr. Cole] –
regardless of which bullet in the sequence of shots actually killed
him. Whether the fatal bullet was fired on Groom or on Gilma only
concerns the way in which the crime was committed. No unanimity
instruction is required “„where multiple theories or acts may form
the basis of a guilty verdict on one discrete criminal event.‟”
Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *70-71.
The state appellate court‟s conclusion was not objectively unreasonable.

11

In the ordinary case, a general unanimity instruction suffices to
instruct the jury that they must be unanimous on whatever
specifications form the basis of the guilty verdict. A specific
unanimity instruction is required only when it appears that "'there is
a genuine possibility of jury confusion or that a conviction may
occur as the result of different jurors concluding that the defendant
committed different acts.'"

12

United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999). Here, Mr. Farrish makes a “different

13

acts” argument, but it was not unreasonable for the state appellate court to hold that (1) Mr.

14

Farrish glossed over the distinction between (a) different acts and (b) different means to

15

accomplish a criminal act and that (2) which bullet killed Mr. Cole fell into the category of

16

different means. See United States v. Gonzalez, 786 F.3d 714, 716-17 (9th Cir. 2015) (rejecting

17

defendant‟s argument that the trial court should have instructed the jury that it must unanimously

18

agree on the facts that constituted the conspiracy to murder; acknowledging that “different jurors

19

may have concluded that different particular overt acts” with respect to the conspiracy, but stating

20

that “no unanimity problem would arise because the differences of opinion on a particular overt

21

act . . . are ones only of means”). See, e.g., United States v. Ruiz, 710 F.3d 1077, 1080-82 (9th

22

Cir. 2013) (“find[ing] no error in the district court‟s failure to give a specific unanimity

23

instruction”; the defendant was charged with possession of a firearm and ammunition during one

24

ten-minute period on one night in one location, and, “[w]hile numerous witnesses testified that

25

[the defendant] possessed the shotgun and ammunition at different times throughout that ten

26

minute period, the jurors were free to convict on whichever evidence they believed supported [his]

27

guilt beyond a reasonable doubt, even if they failed to reach agreement on which pieces of

28

evidence were ultimately persuasive”); United States v. Morsette, 653 F. App‟x 499, 503 (9th Cir.

9

For the Northern District of California

United States District Court

10

31

1

2016) (concluding no plain error where trial court gave only a general and not a specific unanimity

2

instruction; stating that, “[w]hen the government argues that the defendant employed several

3

„means‟ to accomplish a criminal act, . . . a general unanimity instruction may be sufficient” and,

4

here, “[t]he government alleged that [the defendant] used several means to embezzle, steal or

5

convert the RBHB‟s funds – it did not charge each improper transaction as a separate crime”).
United States v. Echeverry, 719 F.2d 974 (9th Cir. 1983), a case cited by Mr. Farrish in his

6

different means) because there was evidence that there was a conspiracy to distribute drugs on

9

different dates. See United States v. Echeverry, 698 F.2d 375, 377 (9th Cir. 1983) (“We have no

10

means by which we may be certain that some portion of the jury, in casting a guilty ballot, did not

11

envision a December conspiracy and fail to find enough evidence to believe that there was a June

12
For the Northern District of California

petition, is not to the contrary. There, there were potentially different acts at issue (instead of

8

United States District Court

7

conspiracy, while other jurors envisioned a June conspiracy and not a December conspiracy. We

13

are not free to hypothesize whether the jury indeed agreed to and was clear on the duration of a

14

single conspiracy or of multiple conspiracies.”). Because different dates and different conspiracies

15

were involved, the case is inapposite.

16

G.

Definition of “Kill Zone”

17

Mr. Farrish contends next that his due process rights were violated when the trial court

18

refused the jury‟s request to define the concept of “kill zone” for the attempted murder charge

19

(i.e., the attempted murder of Mr. Smith).

20
21

22
23
24
25
26
27
28

The instruction on attempted murder stated in relevant part as follows:
CALCRIM 600. ATTEMPTED MURDER (Pen. Code, §§ 21a,
663, 664)
The defendant is charged in Count Two with attempted murder.
To prove that the defendant is guilty of attempted murder, the
People must prove that:
1.
The defendant took at least one direct but ineffective step
toward killing another person;
AND
2.

The defendant intended to kill that person.
32

....

1

A person may intend to kill a specific victim or victims and at the
same time intend to kill everyone in a particular zone of harm or
“kill zone.” In order to convict the defendant of the attempted
murder of [Mr.] Smith, the People must prove that the defendant not
only intended to kill [Mr.] Cole but also either intended to kill [Mr.]
Smith, or intended to kill everyone within the kill zone. If you have
a reasonable doubt whether the defendant intended to kill [Mr.]
Smith or intended to kill [Mr.] Cole by killing everyone in the kill
zone, then you must find the defendant not guilty of the attempted
murder of [Mr.] Smith.

2
3
4
5
6
7
8
9

Ex. B (CT at 629).
As Mr. Farrish notes, “[t]he prosecution‟s theory of attempted murder of [Mr.] Smith was
not [because Mr. Farrish] . . . specifically targeted [Mr.] Smith but because he fired at a „kill zone‟

(prosecutor arguing to jury in closing argument, “You just told us that he was trying [to] kill [Mr.]

12
For the Northern District of California

and intended to kill everyone within that zone.” Pet. at 14; see also Ex. A (RT at 2504-05

11

United States District Court

10

Cole, and you have charged [Mr.] Smith as a victim of attempted murder”; explaining that there is

13

a “zone of risk” – “if the bystander is in the zone of risk, then that‟s attempted murder on the

14

bystander”).

15

During deliberations, the jury asked: “What is the definition of a „kill zone‟?” Ex. B (CT

16

at 660). The trial court‟s response was: “The term „kill zone‟ is defined in CALCRIM 600 as a

17

particular zone of harm. I cannot provide a more specific definition. As noted in the instructions,

18

terms not specifically defined are to be given their ordinary meaning. This is a factual issue for

19

the jury to decide.” Ex. B (CT at 660).

20

Mr. Farrish argues that the trial court could have provided a more specific definition – i.e.,

21

CALJIC 8.66.1 – and that failure to do so violated his due process rights. CALJIC 8.66.1 provides

22

as follows:

23
24
25
26
27
28

“A person who primarily intends to kill one person, may also
concurrently intend to kill other persons within a particular zone of
risk. [This zone of risk is termed the „kill zone.‟] The intent is
concurrent when the nature and scope of the attack, while directed at
a primary victim, are such that it is reasonable to infer the
perpetrator intended to kill the primary victim by killing everyone in
that victim‟s vicinity. [¶] Whether a perpetrator actually intended to
kill the victim, either as a primary target or as someone within a
[„kill zone‟][zone of risk] is an issue to be decided by you.”
People v. Stone, 46 Cal. 4th 131, 137-38 n.1 (2009) (quoting CALJIC No. 8.66.1). Thus, Mr.
33

1

Farrish‟s argument boils down to the position that the trial court should have explained to the jury

2

that “kill zone” had to do with the vicinity of Mr. Cole. See Am. Pet. at 14 (“Had the court

3

provided the jury with this proper instruction, it would have correctly focused the jury on deciding

4

at what times [Mr.] Smith was in [Mr.] Cole‟s „vicinity,‟ and whether [Mr. Farrish] was firing

5

shots at [Mr.] Cole at those times.”). According to Mr. Cole, “[l]eaving the zone completely

6

undefined permitted the jury to use its own definition of a kill zone, which may or may not have

7

been correct.” Am. Pet. at 15.

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9
10

12
For the Northern District of California

United States District Court

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13
14
15

The state appellate court did not find Mr. Farrish‟s argument compelling:
[Mr. Farrish] complains that the trial court did not provide the
definition of “kill zone” provided in CALJIC No. 8.66.1. But, our
Supreme Court has instructed that the “„kill zone‟ theory „is not a
legal doctrine requiring special jury instructions . . . . Rather, it is
simply a reasonable inference the jury may draw in a given case: a
primary intent to kill a specific target does not rule out a concurrent
intent to kill others.‟”
In any event, although the trial court did not use the precise words
used in CALJIC No. 8.66.1, we think the instructions given to the
jury make clear that a “kill zone” is the vicinity in which the
defendant intends to kill anyone present.

16

Farrish, 2012 Cal. App. Unpub. LEXIS 6911, at *80. The court also indicated that it was highly

17

unlikely – as suggested by Mr. Farrish – that the jury could have found attempted murder of Mr.

18

Smith based on the shots that Mr. Farrish fired at Mr. Cole on Gilma because “the prosecutor

19

made clear, in his argument, that „[t]he attempted murder is for the shots on Groom,‟” where,

20

undisputedly, Mr. Cole and Mr. Smith were in close proximity to one another (i.e., before they

21

split up). Id. at *81.

22

The state appellate court‟s reasoning here was not an unreasonable application of clearly

23

established federal law. As a preliminary matter, it is not clear that “vicinity” (the basic term for

24

which Mr. Farrish advocated) is any more precise than “zone of harm” (the term used to explain

25

kill zone in the instruction given to the jury). Moreover, the trial court correctly noted that the

26

parameters of a kill zone is a factual question, and therefore additional specificity with respect to

27

definition of the term is not clearly possible or helpful (in fact, may even be harmful). See People

28

v. Pham, 192 Cal. App. 4th 552, 559 (2011) (“The question – which is a factual one for the jury to
34

1

decide – is whether, based on the particular evidence in the case, it can be inferred that defendant

2

had the concurrent intent to kill not only his intended target but others in the target‟s vicinity.”).

3

Mr. Farrish fails to establish that the state court violated clearly established federal law by

4

concluding that the failure to instruct did not impinge on his right to due process.

5

H.

Actual Innocence
Finally, Mr. Farrish contends that that the state habeas court violated his right to due

6
7

process by denying his petition based on actual innocence without even an evidentiary hearing.

8

Mr. Farrish‟s claim of actual innocence was based on a declaration submitted by a friend,

9

Deaundre Alexander. In his declaration, Mr. Alexander testified, inter alia, that:


Mr. Cole was a member and leader of a “crew” known as TNA. Alexander Decl. ¶ 3.

11



Tavani (Mr. Cole‟s brother) was also a member of TNA, as was Mr. Hudson – the two

12
For the Northern District of California

United States District Court

10

individuals who, along with Mr. Farrish‟s brother, Joe, were involved in the murder of Mr.

13

Narcisse. See Alexander Decl. ¶¶ 4-6.

14



was a bunch of snitches,” which “ruined the reputation of TNA.” Alexander Decl. ¶ 8.

15
16



In response, TNA “started telling everyone that they would „come after‟ [Mr. Farrish and]
made threats against him and his family.” Alexander Decl. ¶ 9.

17
18

Mr. Farrish “was angry that TNA had turned on his brother and made it known that TNA



Two months before the May 2008 shooting, Mr. Cole talked to Mr. Alexander about Mr.

19

Farrish‟s disparagement of TNA. After Mr. Alexander stated that he was “siding with”

20

Mr. Farrish, Mr. Cole told Mr. Alexander that should give Mr. Farrish “„some space‟” and

21

that he was „on him,‟” which meant that “TNA was looking to follow through with their

22

threats and silence [Mr. Farrish] by shooting him and that [Mr. Alexander] should stay

23

away from [Mr. Farrish].” Alexander Decl. ¶ 10. Mr. Alexander told Mr. Farrish about

24

the conversation and tried to give Mr. Farrish “a gun because [he] knew [Mr. Cole] had an

25

AR-15.” Alexander Decl. ¶ 10. But Mr. Farrish did not like to carry guns – in fact, had

26

accidentally shot himself in the leg when handling one. See Alexander Decl. ¶ 11.

27
28



The day that Mr. Cole was killed, Mr. Alexander “again spoke to [Mr. Farrish] about [Mr.
Cole] and how [Mr. Alexander] believed [Mr. Cole] was looking to shoot [Mr. Farrish].”
35

1

Alexander Decl. ¶ 13.

2

According to Mr. Farrish, the declaration of Mr. Alexander establishes that Mr. Farrish “is

3

factually innocent of the first degree murder charge [or at most is guilty of a lesser offense]

4

because he shot Mr. Cole in self-defense”; “no reasonable juror would have convicted him in light

5

of this new evidence” because it reflected that Mr. Farrish was “aware of numerous threats against

6

his life, when he shot Mr. Cole” and that Mr. Cole was armed at the time of the shooting and was

7

actively seeking out Mr. Farrish. Am. Pet. at 16-17, 19. Mr. Farrish asserts that he is entitled to

8

habeas relief because the state court did not issue an order to show cause (which it should have

9

because the contents of the declaration, if accepted as true, established a prima facie case of actual
innocence or guilt of a lesser offense) and further failed to “order an evidentiary hearing on the

11

issue.” Am. Pet. at 20, 22.
The state habeas court apparently found an order to show cause or evidentiary hearing

12
For the Northern District of California

United States District Court

10

13

unnecessary because, although “[r]eading the habeas petition and the Declaration of Alexander in

14

a vacuum[,] one might easily be persuaded of the reasonableness of [Mr. Farrish‟s] perception of

15

both the imminence of danger on the day he fired at [Mr. Cole] and the need to resist with the

16

degree of forced applied[,] . . . the actual facts before the jury belie any such facile interpretation.”

17

Ex. J (Order at 7). The full record reflected that “both [Mr. Farrish] was trying to shoot and kill

18

[Mr.] Cole and that [Mr.] Cole and [Mr.] Smith, in turn, were trying to kill [Mr. Farrish]. In other

19

words, these individuals were individually and collectively engaged in a blood feud based on past

20

personal disputes between them . . . .” Ex. J (Order at 7).
The state habeas court added that it found no merit to Mr. Farrish‟s assertion that he could

21

22

have presented a better self-defense theory with the Alexander declaration because “there is no

23

reason to believe that the currently articulated augmented defense based on [the] Declaration is

24

anything more than cumulative of the self-defense claim made at [the] jury trial.” Ex. J (Order at

25

10).

26

The state habeas court‟s denial of post-conviction relief was not unreasonable. First,

27

“[g]iven the lack of a holding from the U.S. Supreme Court that there is a constitutional right to

28

release based upon a showing of actual innocence, the [court‟s] rejection of [Mr. Farrish‟s] claim
36

1

cannot be said to be „contrary to, or an unreasonable application of, clearly established Federal

2

law, as determined by the Supreme Court of the United States.‟” Gonzalez v. Gipson, No. 14-cv-

3

04995-EMC, 2016 U.S. Dist. LEXIS 70803, at *35 (N.D. Cal. May 31, 2016); see also

4

McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (noting “[w]e have not resolved whether a

5

prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence”); DA’s

6

Office v. Osborne, 557 U.S. 52, 71 (2009) (stating that whether a federal constitutional right to be

7

released upon proof of actual innocence “is an open question”); Garnett v. Neven, 408 Fed. Appx.

8

47, 47 n.1 (9th Cir. 2011) (stating that “the Supreme Court has not clearly established whether a

9

freestanding claim of actual innocence exists”).

10

But even if a federal habeas claim could be predicated on a freestanding actual innocence
claim, see Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (stating that “[w]e have not

12
For the Northern District of California

United States District Court

11

resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus

13

proceeding in the non-capital context, although we have assumed that such a claim is viable”); see

14

also Moore v. Arnold, No. 16-01666 EJD (PR), 2016 U.S. Dist. LEXIS 97601, at *5 (N.D. Cal.

15

July 26, 2016) (stating that “it appears that a noncapital prisoner can state a freestanding actually

16

innocence claim in federal habeas based on the Ninth Circuit‟s recent decisions”), “the threshold

17

showing for such an assumed right would necessarily be extraordinarily high.‟” Murray v.

18

Hubbard, No. C-11-2943 EMC (pr), 2012 U.S. Dist. LEXIS 131716, at *4 (N.D. Cal. Sept. 14,

19

2012). “[A] habeas petitioner asserting a freestanding innocence claim must go beyond

20

demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.”

21

Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).

22

The Alexander declaration, added to the other evidence of self-defense presented at trial,

23

does not support probable innocence on the part of Mr. Farrish. As the government emphasizes,

24

Mr. Alexander never claimed to have any personal knowledge of the shooting. The main

25

witnesses who had personal knowledge or at least who claimed personal knowledge were Mr.

26

Smith (a prosecution witness) and Mr. Broadway (a defense witness). Mr. Smith‟s trial testimony,

27

of course, was belied by his more specific police interview testimony; and Mr. Smith‟s testimony

28

in the police interview – that Mr. Smith and Mr. Cole were not carrying any weapons on the day at
37

1

issue – was in fact corroborated by physical evidence (no guns were found at the scene) and the

2

testimony of two independent third-party eyewitnesses. Mr. Farrish protests that the Alexander

3

declaration, unlike the other self-defense evidence tendered at trial (e.g., “specific instances where

4

Mr. Cole and TNA members attacked [him]”), is special and noncumulative because it “goes

5

directly to [his] understanding of the threats made against him by Mr. Cole.” Am. Pet. at 18-19.

6

But even accepting that understanding, that does not detract from the fact that there was

7

substantial evidence that, on the day of the shooting, neither Mr. Smith nor Mr. Cole had a gun.
III.

8
9

CONCLUSION

For the foregoing reasons, the Court denies Mr. Farrish‟s amended petition for habeas

a case in which “jurists of reason would find it debatable whether the petition states a valid claim

12
For the Northern District of California

relief. In addition, the Court declines to issue Mr. Farrish a certificate of appealability. This is not

11

United States District Court

10

of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Clerk is

13

instructed to enter judgment and close the file.

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15

IT IS SO ORDERED.

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Dated: September 14, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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