Khek v. Foulk

Filing 31

ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 1/22/2016. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 1/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
FRED FOULK,
Respondent.

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For the Northern District of California

United States District Court

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Case No. 14-cv-02936-EMC

KOSAL K. KHEK,

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I.

INTRODUCTION

Kosal Kim Khek filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. §

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2254 to challenge his murder conviction. Respondent has filed an answer to the petition and Mr.

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Khek has filed a traverse. For the reasons discussed below, the Court dismisses one claim as

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untimely filed and denies the other claim on the merits.

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II.

BACKGROUND

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The California Court of Appeal described the facts of the crime:

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Viet Society (VS) and Strictly Family (SF) are rival criminal street gangs in San
Jose. Defendants [Kosal Kim Khek and Christopher Lee] are VS members.

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On August 29, 2007, SF gang members drove to and stopped at the Magic Sands
Mobile Home Park where several of defendants‘ friends were sitting on the grass
near a swimming pool. One of the friends, Tuan Nguyen, began arguing with a
passenger in the SF car, and the passenger pulled out a gun and shot Nguyen three
times. Another of the friends recognized the shooter and identified him to the
police. Another friend described the car and a partial license plate number to the
police. The police arrested the shooter and owner of the car for attempted murder.

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When defendants found out about the shooting, they began to plot revenge against
SF via computer instant messaging. For example, Lee told Khek that he was going
to find out where the shooter lived and added: ―Oh yeah. I found out that this

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For the Northern District of California

United States District Court

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Anthony [Nguyen] kid from Andrew Hill [High School] lives with Johnny.... [¶] ...
[¶] ... We start by taking them out one by one. [¶] ... [¶] ... Just hit them up. Let‘s
kill this Anthony kid from A Hill. He‘s a kid, too, just like Tuan. Eye for an eye.‖
And Khek told Lee: ―How does that Anthony kid look like? I am going to fuck his
ass up. [¶] ... [¶] And run away like an assassin. [¶] ... [¶] And he won‘t know who
hit him.‖ Lee later sent pictures of Anthony Nguyen to Khek, and Khek told Lee
that ―I‘m going to get him after school so maybe at 3:00.‖
On September 6, 2007, Anthony Nguyen, Phong Nguyen, Kim Huynk, Lily Phong,
and Kevin Huynh were smoking and talking outside a laundromat and the Q–Cup
café. Khek walked up to Anthony Nguyen and asked whether he was Anthony.
When Anthony Nguyen affirmed that he was Anthony, Khek stabbed him twice
and ran away. Anthony Nguyen died at the scene from massive bleeding. One of
the stab wounds penetrated his shoulder; the other wound penetrated his stomach
four and a half inches, cut through the liver and aorta, and caused six to 12 inches
of bowel to protrude from the body. Phong Nguyen and Kim Huynk identified
Khek to the police. Police obtained an arrest warrant for Khek, determined that he
was on probation with a search condition, arrested him at his apartment, and seized
his computer. A witness linked Anthony Nguyen to Lee, and the police determined
that Lee was on juvenile probation with a search condition. The police went to
Lee‘s residence, conducted a probation search, and seized Lee‘s computer.

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Cal. Ct. App. Opinion, pp. 2-3 (alterations other than first bracketed material, and omissions, in

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original).

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III.

JURISDICTION AND VENUE

This Court has subject matter jurisdiction over this action for a writ of habeas corpus under

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28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition

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concerns the conviction and sentence of a person convicted in Santa Clara County, California,

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which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

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IV.

STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus ―in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.‖ 28 U.S.C. § 2254(a).

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The Antiterrorism And Effective Death Penalty Act of 1996 (―AEDPA‖) amended § 2254

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to impose new restrictions on federal habeas review. A petition may not be granted with respect to

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any claim that was adjudicated on the merits in state court unless the state court‘s adjudication of

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the claim: ―(1) resulted in a decision that was contrary to, or involved an unreasonable application
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of, clearly established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

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the evidence presented in the State court proceeding.‖ 28 U.S.C. § 2254(d).

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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).
―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

―[A] federal habeas court may not issue the writ simply because that court concludes in its

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For the Northern District of California

decisions but unreasonably applies that principle to the facts of the prisoner‘s case.‖ Id. at 413.

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United States District Court

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

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erroneously or incorrectly. Rather, that application must also be unreasonable.‖ Id. at 411. ―A

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federal habeas court making the ‗unreasonable application‘ inquiry should ask whether the state

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court‘s application of clearly established federal law was ‗objectively unreasonable.‘‖ Id. at 409.
V.

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A.

DISCUSSION

Exclusion of Mr. DeJong‘s Statement That The Plan Was To Hurt But Not Kill The Victim

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1.

Background

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Mr. Khek contends that his federal constitutional rights to compulsory process and due

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process were violated by the trial court‘s exclusion of ―exculpatory evidence‖ that Robert DeJong

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(a fellow gang member) ―had told the police that the plan was to hurt Nguyen, but not to kill him.‖

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Docket No. 1 at 9. Mr. Khek argues that the exclusion of the evidence interfered with his

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presentation of ―relevant evidence demonstrating that he was not guilty of first degree murder,‖

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and was contrary to the Supreme Court‘s rulings that ―technical evidentiary rules cannot be relied

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upon by trial courts to deny an accused citizen the opportunity to present legitimate exculpatory

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evidence.‖ Id. at 9, 12 (citing Crane v. Kentucky, 476 U.S. 683 (1986), and Chambers v.

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Mississippi, 410 U.S. 284 (1973)).1
The evidence in question consisted of statements made by Mr. DeJong to the police in an

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interview a week after the killing.2 The context in which Mr. DeJong had made the statements and

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the statements sought to be admitted were as follows:

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DeJong first told the police that he had been sleeping at his home at the time of the
murder. He then told them that he had left home near the time of the murder to
deliver a friend‘s backpack to school. Later in the interview, he denied ever going
to the Q-Cup café and offered that he had learned of a killing at the Q-Cup from his
girlfriend. After taking a break, the police told DeJong that they were investigating
Anthony Nguyen‘s murder at the Q-Cup; did not believe DeJong; and wanted to
hear the truth from DeJong. DeJong then admitted that he went to the Q-Cup after
dropping off the backpack. Before continuing, the officers revealed that they knew
what had happened and cautioned DeJong against lying. DeJong then admitted
being at the Q-Cup with Khek.

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Defendants proffered the following statements from the interview for admission
into evidence.

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For the Northern District of California

United States District Court

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1. ―We were driving to Q-Cup. We weren‘t planning it—this—there wasn‘t any
plan it was just supposed to be, you know. We weren‘t—we weren‘t about to do
it—or he wasn‘t—but then....‖

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2. ―And we walked back close to my car and we didn‘t know if we should do it ...
and then, fuck, I don‘t know, I took him back home to his house.‖

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3. [Question: What was the plan? How were you going to hurt him?] ―Either jump
him and if you were gonna use a weapon, use, not that, not too muc[h] ‗cause we
didn‘t want him to die. Just stab him once, twice middle of the stomach and that
was it. But I guess he got him in the neck too.‖

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4. ―Go to his house, stab him, and walk—walks away. [¶] ... [¶] That was plan 2.‖

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5. [Question: Who came up with the stabbing plan, you, [Vinh] Ly, and Khek. How
‗bout [Lee]?] ―No, he wasn‘t—he wasn‘t in [the car].‖

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Khek also argues that the exclusion of the evidence was improper under the California Evidence
Code. Federal habeas relief is not available for such state law errors. See Swarthout v. Cooke, 562
U.S. 216, 219 (2011).
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DeJong, who was not tried with Khek, invoked his Fifth Amendment privilege not to incriminate
himself and did not testify.
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For the Northern District of California

United States District Court

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6. [Dialogue to the effect that DeJong, Khek, and Ly drove back to Khek‘s home
and Lee was already there harboring the belief that the plan had been to jump
Anthony Nguyen.]
Cal. Ct. App. Opinion at 8-9 (alternations and omissions in original).
The California Court of Appeal rejected Mr. Khek‘s state law and federal constitutional
challenges to the exclusion of the evidence. As to the state law claims, the California Court of
Appeal concluded that Mr. DeJong‘s statement that the plan was only to hurt the victim was not
admissible under the hearsay exception for declarations against penal interest. Whether the
declaration against penal interest exception applies depends on the context in which the statement
is made, and the ―trial court could have rationally concluded that DeJong‘s statements were
exculpatory or self-serving and untrustworthy because DeJong lied to the police and, when caught
in the lie, sought to minimize his culpability by posing an assault-gone-awry scenario.‖ Id. at 1112. The trial court‘s exercise of its discretion was ―entirely consistent with the case law for
determining the declaration-against-interest exception to the hearsay rule.‖ Id. at 12.
The California Court of Appeal also determined that Mr. Khek‘s constitutional claims were
―without merit.‖ Id. at 12. The evidence had been determined to be unreliable by the trial court,
and its exclusion pursuant to the application of ordinary rules of evidence did not violate Mr.
Khek‘s right to present a defense or his right to due process. Id. at 12. Chambers did not help Mr.
Khek because in Chambers, ―the court overturned a state court‘s application of its hearsay rule
because it excluded evidence made under circumstances that provided considerable assurance of
the evidence‘s reliability. . . . Here, defendants cannot complain of a denial of due process
because the hearsay evidence they sought to introduce was unreliable.‖ Cal. Ct. App. Opinion, at
12-13 (citing Chambers v. Mississippi, 410 U.S. at 298-302).
2.

Analysis

The U.S. Constitution gives a criminal defendant the right to present a defense. ―Whether
rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants ‗a meaningful opportunity to present a complete defense.‘‖ Crane v. Kentucky, 476

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U.S. 683, 690 (1986) (citations omitted). The Compulsory Process Clause of the Sixth

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Amendment preserves the right of a defendant in a criminal trial to have compulsory process for

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obtaining a favorable witness. Washington v. Texas, 388 U.S. 14, 19 (1967). The Sixth

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Amendment right to present relevant testimony ―may, in appropriate cases, bow to accommodate

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other legitimate interests in the criminal trial process.‖ Chambers v. Mississippi, 410 U.S. 284,

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295 (1973); Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (right to compulsory process is not

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absolute); cf. Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (plurality opinion) (defendant

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―‗does not have an unfettered right to offer [evidence] that is incompetent, privileged or otherwise

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inadmissible under standard rules of evidence‘‖; the exclusion of evidence does not violate the

exclusion of evidence was a constitutional error, habeas relief is not available unless the erroneous

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For the Northern District of California

Due Process Clause unless it offends some ―fundamental principle of justice‖). Even if the

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United States District Court

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exclusion had a ―‗substantial and injurious effect or influence in determining the jury‘s verdict.‘‖

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Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
When crucial defense evidence that bears ―persuasive assurances of trustworthiness and

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thus [is] well within the basic rationale of the exception for declarations against interest,‖ ―the

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hearsay rule may not be applied mechanistically to defeat the ends of justice.‖ Chambers v.

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Mississippi, 410 U.S. at 302.3 That was not the situation here. Mr. Khek‘s case was not one

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In Chambers, a third party had confessed to the murder, and later recanted. Chambers called the
third party as a witness, the third party denied responsibility for the murder, and the prosecution
established in cross-examination that the third party had recanted his confession. Unusual and
outdated state law evidence rules that the defendant vouched for the third party because he had
called him as a witness precluded Chambers from effectively questioning or cross-examining the
third party to impeach his recantation. Chambers, 410 U.S. at 295-97; see id. at 296 (Mississippi‘s
vouching rule has little purpose in modern criminal trials because parties generally must ―take
[their witnesses] where they find them‖). Other evidence of the third party‘s guilt was excluded
because the state‘s declaration-against-interest exception to the hearsay rule did not apply to
declarations against penal interests. Chambers, 410 U.S. at 298-300. The hearsay statements in
Chambers were made and offered at trial ―under circumstances that provided considerable
assurance of their reliability,‖ i.e., the confessions mere made spontaneously to a close
acquaintance shortly after the murder; each one was corroborated by other evidence, including the
third party‘s sworn confession and testimony of eyewitnesses; each statement was selfincriminatory and unquestionably against the confessor‘s self interests; and the declarant (i.e., the
third party) was in court and could have been cross-examined at Chambers‘ trial. Id. at 300-01.
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rationale of an exception to the hearsay rule. The state court‘s determination that Mr. DeJong‘s

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statement that the plan was only to hurt the victim was not trustworthy was not an unreasonable

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determination of the facts because Mr. DeJong did not make the statement until after he tried and

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failed to absolve himself of all responsibility for the crime. As the state appellate court explained,

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Mr. DeJong initially tried to convince the police that he was not even present at the scene of the

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crime. Mr. DeJong did not offer the our-plan-was-only-to-hurt-him statement until after the police

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told him they did not believe his original statement and revealed to him that they knew what had

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happened. Only then did Mr. DeJong admit being at the Q-Cup with Mr. Khek and only then did

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he say that their plan was only to hurt the victim rather than to kill him. As the state court noted,

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this was an attempt to minimize his guilt. The state court determined that the evidence was not

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where the evidence had such persuasive assurances of trustworthiness or was within the basic

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United States District Court

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trustworthy and did not fit within the exception to the hearsay rule for declarations against interest.

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Unlike the situation in Chambers, there was not a statement with indicia of trustworthiness and

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reliability that was excluded by an odd combination of unusual state evidence rules that worked

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together to defeat the defendant‘s rights to due process and to present a defense.

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Mr. Khek‘s other cited case, Crane v. Kentucky, 476 U.S. 683 (1986), also does not

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support relief for him. In Crane, the Supreme Court held that the defendant‘s constitutional right

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to present a defense was violated where the state court excluded evidence using a rigid state

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procedural rule to exclude evidence essential to the defense. There, Kentucky had a rule that a

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pretrial determination that a confession was voluntary was conclusive and could not be relitigated

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at trial. Id. at 686-87. The trial court had applied this rule to exclude evidence about the

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circumstances of the defendant‘s confession where the defense wanted to present the evidence to

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It was the combination of the rigid application of the State‘s evidence rules and the fact
that the evidence bore considerable assurances of trustworthiness and reliability that led to the due
process violation in Chambers. See id. at 302-03. The Supreme Court specifically pointed out
that its holding did not ―signal any diminution in the respect traditionally accorded the States in
the establishment and implementation of their own criminal trial rules and procedures.‖ Id. at 303.
Here, by contrast, DeJong‘s statement that they only wanted to hurt the victim was inadmissible
with a routine application of the hearsay rule and did not have considerable assurances of its
reliability such that it fit within the spirit of the hearsay rule or exceptions thereto.
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undermine the credibility of that confession. The Supreme Court explained that the state court

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wrongly assumed that ―evidence bearing on the voluntariness of a confession and evidence

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bearing on its credibility fall in conceptually distinct and mutually exclusive categories.‖ Id. at

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687. Contrary to the state court‘s assumption, the same evidence about the ―manner in which a

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statement was extracted‖ may be relevant to both the legal question (for the judge) of the

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statement‘s voluntariness, as well as the ―ultimate factual issue‖ (for the jury) of the defendant‘s

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guilt. Id. at 688-89. The State‘s ―blanket exclusion of the proffered testimony about the

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circumstances of petitioner‘s confession deprived him of a fair trial,‖ by excluding ―competent

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reliable evidence bearing on the credibility of a confession when such evidence is central to the

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defendant‘s claim of innocence‖ and without any countervailing valid state justification for its

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exclusion. See id. at 690.

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Here, there was no comparable error. Mr. DeJong‘s statements about the plan to hurt the

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victim were not excluded by rigid use of an unrelated procedural rule, and instead were excluded

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with a straightforward application of the hearsay rule and the declaration against interest exception

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thereto. Moreover, unlike the situation in Crane, the evidence being offered was not trustworthy

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evidence and instead was evidence determined by the state court to be lacking in trustworthiness

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because it was exculpatory in the context made. That is, Mr. DeJong did not state that they had

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only intended to hurt the victim until the police laid out for him that they already knew what had

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happened and that he was involved. Crane did not question ―the power of States to exclude

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evidence through the application of evidentiary rules that themselves serve the interests of fairness

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and reliability--even if the defendant would prefer to see that evidence admitted.‖ Id. at 690.

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California‘s application of the hearsay rule and the declaration against interest exception to it are

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not called into question by Crane.

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Further, even if there had been a violation of the right to present a defense, any such error

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would have been harmless. The instant messages exchanged between Mr. Khek and the other

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gang members before and after the attack plainly revealed an intent to kill and undermined the

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idea that this was intended only to be an assault on Anthony.4 The instant messages sent after

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someone associated with Mr. Khek‘s gang was shot, but before Anthony was stabbed, included the

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following: On August 29 (i.e., before the September 6 killing) Mr. Lee wrote to Mr. Khek: ―‗I

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found out that this kid Anthony from Andrew Hill [High School] lives with Johnny. . . . We start

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by taking them out one by one. . . . . Just hit them up. Let‘s kill this Anthony kid from A. Hill.

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He‘s a kid, too, just like Tuan. Eye for an eye.‘‖ 2138-39. Mr. Khek responded, ―‗What the fuck.

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Nah. . . . Just go after those fuckers.‘‖ RT 2139. On August 30, Mr. Khek sent a message to Mr.

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Lee asking what Anthony looked like and asserting that he (Khek) was ―‗going to fuck his ass up.

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. . . And run away like an assassin. . . . And he won‘t know who hit him.‘‖ RT 2169. Once Mr.

list.‘‖ RT 2170. On September 5, the day before the killing, Mr. Khek wrote, ―‗That bitch

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Khek received a photo of Anthony on August 30, he wrote, ―‗Well, he‘s going to be on my hit

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United States District Court

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[Anthony] is going to fuckin‘ die.‘‖ RT 2209. Hours before the killing on September 6, Mr. Khek

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wrote to another gang member, ―‗Eh, do you want to go kill a kid with me?‘‖ RT 2233. The

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instant messages after the killing included no statement by Mr. Khek reflecting surprise, remorse

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or regret that he had killed the victim; instead, he sent a message that he was planning to party

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because he anticipated being apprehended soon. RT 2235-36 (―‗I need to party hard core. I feel

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like the end is coming close‘‖). There also was evidence that Mr. Khek plunged the knife more

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than four inches into Anthony‘s abdomen and stabbed him in the shoulder area. In light of the

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evidence that Mr. Khek made several statements on instant messaging showing that he planned to

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kill the victim, plus the depth and location of the stab wound, it can be said with certainty that the

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exclusion of Mr. DeJong‘s statements that the plan was only to hurt Anthony had no substantial or

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injurious effect on the jury‘s verdict for Mr. Khek. See Brecht, 507 U.S. at 638.
The California Court of Appeal‘s rejection of Mr. Khek‘s constitutional claims regarding

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the exclusion of Mr. DeJong‘s statements that the plan was to only hurt the victim was not

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contrary to or an unreasonable application of clearly established federal law, as set forth by the

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U.S. Supreme Court.

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The victim‘s first name is used because he shares a surname (Nguyen) with a witness and
another participant in the gang activities.
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B.

Admission of Mr. DeJong‘s Hearsay Statement About His Own Activities

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Mr. Khek argues that the trial court violated his right to due process in allowing the

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prosecutor to introduce evidence of Robert DeJong‘s statement to the police regarding Mr.

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DeJong‘s drive to the Q-Cup and Mr. DeJong‘s conduct before and during the stabbing.

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1.

Background

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At trial, the parties stipulated to the admission of a portion of a statement Mr. DeJong

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made to the police during the course of the investigation, subject to Mr. Khek‘s objections. They

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preserved for appeal Mr. Khek‘s objections that the admission of the evidence violated his Sixth

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Amendment rights and that the stipulated statement did not represent the totality of Mr. DeJong‘s

references to Mr. Khek that were in the original version of Mr. DeJong‘s statement to police,

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statement to the police. See RT 2397-98, RT 2406-07. The stipulated statement eliminated

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United States District Court

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―such as, ‗I went to [Khek‘s] house. It was me and [Khek],‘ ‗We were driving to Q–Cup,‘ ‗We

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drove back around and we saw him,‘ ‗then he ran out of the car,‘ ‗and . . . three times he stuck

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him,‘ and ‗then I took him back home.‘‖ Cal. Ct. App. Opinion at 13 (alterations and omission in

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original).

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The prosecutor read the following stipulation of DeJong‘s statement to the jury:

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―Number one: On September the 6th, 2007, DeJong drove to the Q–Cup retail
center. [¶] Two: He parked on a street behind the retail center. [¶] Three: DeJong
got out of his vehicle, went inside the Q–Cup, didn‘t buy anything, and walked
back out. [¶] Four: After DeJong left the Q–Cup he walked back to the car, got in,
and began to drive away. He turned north on Yuma—it‘s spelled Y-u-m-a. He then
turned onto Southside to Senter Road, went down Senter, saw Anthony Nguyen,
did a U-turn, stopped in front of the retail center, and then parked on the corner.
After stopping there he drove to the back of the retail center. [¶] Number five:
DeJong told the police that he was there approximately five to ten minutes before
the stabbing.‖

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RT 2654-55.
On appeal, Mr. Khek contended that the admission of the stipulated statement violated Mr.

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Khek‘s Sixth Amendment right to confront Mr. DeJong.5 The California Court of Appeal

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Khek also argued on appeal that the admission of the evidence was improper under the California
Evidence Code because it was not the complete statement made by DeJong (e.g., it excluded the
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concluded that Mr. Khek was ―incorrect‖ in his contention that the admission of the statement

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violated his rights as explained in Crawford v. Washington, 541 U.S. 36 (2004).

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In Crawford, supra, 541 U.S. at pages 53 through 54, 68, and Davis v. Washington
(2006) 547 U.S. 813, the court held that admission of testimonial hearsay
statements against a defendant violates the Sixth Amendment confrontation clause
when the declarant is not, and has not previously been, subject to crossexamination. Further, because the confrontation clause applies to ―‗witness[es]
―against‖‗― the accused, that constitutional provision is implicated only to the
extent an out-of-court statement is ―admitted ‗against‘ defendant.‖ (People v. Lewis
(2008) 43 Cal.4th 415, 506.)
The issue of whether a statement is offered against a defendant for the purposes of
the confrontation clause commonly arises in the situation addressed by the Aranda–
Bruton line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United
States (1968) 391 U.S. 123, 126–137), in which one defendant‘s confession or
inculpatory statement that is offered in a joint trial as evidence against him by the
prosecution also includes evidence that is inculpatory of a codefendant. If such a
statement is properly redacted to remove reference to the codefendant and a
limiting instruction is given, the statement may be admitted in a joint trial without
violating the codefendant‘s right to confrontation, as it is not considered to be
offered against the codefendant within the meaning of the confrontation clause.
(Richardson v. Marsh (1987) 481 U.S. 200, 211; Gray v. Maryland (1998) 523
U.S. 185, 196.)
Thus, when a statement ―contain[s] no evidence against defendant,‖ it ―cannot
implicate the confrontation clause.‖ (People v. Stevens (2007) 41 Cal.4th 182, 199,
italics added.)

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Here, DeJong‘s statement contained no evidence against Khek because it neither
identified Khek nor contained any inculpatory information as to him. ―Thus, it
cannot implicate the confrontation clause. [Citations.] The same redaction that

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23
24
25
26
27
28

exculpatory statements discussed in the preceding section that the plan was only to injure
Anthony). The California Court of Appeal rejected that argument, explaining that California
Evidence Code section 356 did not require that, whenever any part of a statement was admitted,
the door was opened ―for anything said out of court on any subject merely because it was uttered
on the same occasion as the statement admitted in evidence.‖ Cal. Ct. App. Opinion, p. 16. The
appellate court explained that the stipulated statement did not contain anything so
―incomprehensible or misleading‖ that it ―need[ed] clarification from other statements that DeJong
made in the same police interview.‖ Cal. Ct. App. Opinion, p. 17. Further, the excluded portion
of DeJong‘s statement (i.e., the portion in which he stated that they intended to injure the victim)
was about a different subject matter, i.e., the motive, rather than his participation and did not need
to be admitted under state law. Id. The state appellate court‘s ruling on this state law evidence
claim is not subject to review in a federal habeas action. See Swarthout v. Cooke, 562 U.S. 216,
219 (2011).
11

1

‗prevents Bruton error also serves to prevent Crawford error.‘ ― (People v. Stevens,
supra, 41 Cal.4th at p. 199.)

2
3
4
5
6
7
8
9
10

12
For the Northern District of California

United States District Court

11

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

Cal. Ct. App. Opinion, at 14-15 (alternations in original).
2.

Analysis

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the
accused has the right to ―be confronted with witnesses against him.‖ U.S. Const. amend. VI. The
ultimate goal of the Confrontation Clause ―is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but
that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.‖
Crawford, 541 U.S. at 61.
The Confrontation Clause applies to all ―testimonial‖ statements. See Crawford, 541 U.S.
at 50-51. ―Testimony . . . is typically a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.‖ Id. at 51 (internal quotation marks and brackets omitted); see
id. at 51 (―An accuser who makes a formal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an acquaintance does not.‖); id. at 68
(―[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations‖). In Davis v.
Washington, 547 U.S. 813 (2006), the Supreme Court distinguished testimonial and nontestimonial statements to police. ―Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.‖ Id. at 822; see, e.g., id. at 826-28 (victim‘s frantic statements to a 911
operator naming her assailant who had just hurt her were not testimonial); id. at 829-30 (victim‘s
statements to officer telling him what had happened were testimonial, as there was no emergency
in progress and were made after police officer had separated victim and assailant); Crawford, 541
U.S. at 39-40, 68 (statements were testimonial where made by witness at police station to a series
12

1

of questions posed by an officer who had given Miranda warnings to witness and was taping and

2

making notes of the answers).

3

Mr. DeJong‘s statement to the police during an interview at the police station days after the
stabbing plainly was ―testimonial‖ because it was ―‗made under circumstances which would lead

5

an objective witness reasonably to believe that the statement would be available for use at a later

6

trial.‘‖ Crawford, 541 U.S. at 52. Mr. DeJong‘s statement fit squarely within Crawford‘s

7

definition of testimonial statements. See Davis, 547 U.S. at 829-30 (victim‘s statements to officer

8

telling him what had happened were testimonial, as there was no emergency in progress and were

9

made after police officer had separated victim and assailant); Crawford, 541 U.S. at 39-40, 68

10

(statements made by witness at police station after witness was given Miranda warnings were

11

testimonial). There was no ongoing emergency at the time of the statement.

12
For the Northern District of California

United States District Court

4

The California Court of Appeal‘s Confrontation Clause analysis was an unreasonable

13

application of Crawford and Bruton v. United States, 391 U.S. 123 (1968). The California Court

14

of Appeal reasoned that Mr. DeJong‘s statement was not offered against Mr. Khek and therefore

15

did not implicate Mr. Khek‘s Confrontation Clause rights. The California Court of Appeal

16

reached that conclusion by mistakenly failing to distinguish statements made by a codefendant on

17

trial with a defendant from a statement made by a coperpetrator/codefendant not on trial with a

18

defendant. First, the state appellate court relied on a California Supreme Court case for the

19

proposition that the Confrontation Clause is ―implicated only to the extent an out-of-court

20

statement is admitted against [a] defendant.‖ Cal. Ct. App. Opinion at 14 (quoting People v.

21

Lewis, 43 Cal.4th at 506 (internal quotation marks omitted)). The cited case (Lewis), however,

22

noted that a statement is not admitted against a defendant when the jury has been instructed that

23

the statement does not apply to this defendant. Here, Mr. Khek‘s jury was not instructed that Mr.

24

DeJong‘s statement was not to be considered against Mr. Khek. The California Court of Appeal

25

incorrectly determined that the statement was not evidence against Mr. Khek subject to the

26

protections of the Confrontation Clause. Given that Mr. DeJong was not on trial, there was no

27

reason to admit his statement other than to be evidence against Messrs. Khek and Lee. Mr.

28

DeJong‘s statements were relevant to show that Mr. Khek was lying in wait, and the prosecutor so
13

1

argued.
Second, the California Court of Appeal erroneously relied on the Bruton line of cases to

2
3

determine that the redaction of Mr. DeJong‘s statement to remove reference to Mr. Khek made the

4

statement admissible. Cal. Ct. App. Opinion, p. 14. This was erroneous because Bruton does not

5

apply when the codefendant whose statement is redacted is tried separately. United States v.

6

Mitchell, 502 F.3d 931, 965 (9th Cir. 2007 (en banc). The Bruton line of cases simply did not

7

apply to Mr. DeJong‘s statement because Mr. DeJong was not on trial with Mr. Khek. The Bruton

8

line of cases concerns admission of a confession from a nontestifying codefendant at a joint trial

9

for use against the nontestifying codefendant, and the jury‘s ability to follow instructions not to

codefendant‘s confession where petitioner and codefendant were on trial together); id. at 137

12
For the Northern District of California

consider the evidence against the other defendant. See, e.g., Bruton, 391 U.S. at 124 (admission of

11

United States District Court

10

(―Despite the concededly clear instructions to the jury to disregard [codefendant‘s] inadmissible

13

hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting

14

instructions as an adequate substitute for petitioner‘s constitutional right of cross-examination‖).6

15
16
17
18
19
20
21

22
23
24
25
26
27
28

6

Bruton held that a defendant is deprived of his Confrontation Clause rights when the facially
incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the
jury is instructed to consider the confession only against the codefendant. The next case in the
series, Richardson v. Marsh, 481 U.S. 200 (1987), considered the admission of the confession of a
nontestifying codefendant at a joint trial in which the ―confession was not incriminating on its
face, and became so only when linked with evidence introduced later at trial (the defendant‘s own
testimony).‖ Id. at 208. Richardson held that ―the Confrontation Clause is not violated by the
admission of a nontestifying codefendant‘s confession with a proper limiting instruction when, as
here, the confession is redacted to eliminate not only the defendant‘s name, but any reference to
his or her existence.‖ Id. at 211. In that same term, Cruz v. New York, 481 U.S. 186 (1987), held
that, ―where a nontestifying codefendant‘s confession incriminating the defendant is not directly
admissible against the defendant, the Confrontation Clause bars its admission at their joint trial,
even if the jury is instructed not to consider it against the defendant, and even if the defendant‘s
own confession is admitted against him.‖ Id. at 193 (internal citation omitted). More than a
decade later, in Gray v. Maryland, 523 U.S. 185, 195 (1998), the Supreme Court held that the
introduction at a joint trial of a nontestifying codefendant‘s confession in which redactions
―replace a proper name with an obvious blank, the word ‗delete,‘ a symbol, or similarly notify the
jury that a name has been deleted are similar enough to Bruton‘s unredacted confessions as to
warrant the same legal results.‖ Gray stands for the proposition that a redaction that obviously
suggests it is referring to the defendant is just as unacceptable under the Confrontation Clause as
the confession in Bruton was.
14

1

Here, Mr. DeJong‘s case had been severed, and he was not on trial with Messrs. Lee and

2

Khek. See CT 2214. Since Mr. DeJong was not on trial, there was no reason to admit his

3

statement other than to be evidence against Messrs. Khek and Lee. The state appellate court‘s

4

determination that Mr. DeJong‘s statement was not against Mr. Khek was erroneous. The reliance

5

on Bruton was unreasonable for the further reason that, unlike the situation in Bruton, there was

6

no limiting instruction that the evidence could not be used against Mr. Khek. The state appellate

7

court‘s extension of the Bruton line of cases to the admission of a statement from a person who

8

was involved in the crime but was not on trial with Mr. Khek was an objectively unreasonable

9

application of the Bruton line of cases. See Williams v. Taylor, 529 U.S. 362, 408 (2000)

precedent to a new context where it should not apply‖ may be an unreasonable application of

12
For the Northern District of California

(O‘Connor, J.) (state court decision that ―unreasonably extend[s] a legal principle from our

11

United States District Court

10

clearly established federal law under 28 U.S.C. § 2254(d)(1)). Because the California Court of

13

Appeal‘s rejection of the Confrontation Clause claim was an ―unreasonable application of clearly

14

established Federal law, as determined by the United States Supreme Court,‖ habeas relief is not

15

barred by 28 U.S.C. § 2254(d)(1).

16

Determining that habeas relief is not barred by § 2254(d)(1) does not end the matter,

17

because the court must still determine whether the error was harmless. For purposes of federal

18

habeas corpus review, the standard applicable to violations of the Confrontation Clause is whether

19

the admission of the evidence ―‗had substantial and injurious effect or influence in determining the

20

jury‘s verdict.‘‖ Brecht v. Abrahamson, 507 U.S. 619, 637 (quoting Kotteakos v. United States,

21

328 U.S. 750, 776 (1946)); see also Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002)

22

(Brecht test applies to Confrontation Clause violations).

23

The Confrontation Clause violation did not have a substantial and injurious effect or

24

influence in determining the jury‘s verdict against Mr. Khek. Interestingly, it was the fact that the

25

statement had been redacted that helped make its admission harmless. The version of Mr.

26

DeJong‘s statement that the jury heard had no references to Mr. Khek. Instead, the statement was

27

facially neutral to Mr. Khek and described only Mr. DeJong‘s actions without reference to anyone

28

else who may have been present. The method of redaction did not even suggest there was
15

1

someone with Mr. DeJong. Thus, for example, the jury heard that ―DeJong drove to the Q-Cup

2

retail center,‖ rather than that DeJong drove Mr. Khek to the Q-Cup retail center.

3

At trial, there was no real dispute about the identity of the assailant or the cause of the

4

victim‘s death. Instead, the key question was whether Mr. Khek intended to kill the victim when

5

he stabbed him. Mr. Khek‘s closing argument conceded that there was enough evidence for a

6

second degree murder conviction and urged the jury to focus on whether there was enough

7

evidence to find that the murder was first degree murder. See RT 2985 (Mr. Khek‘s attorney

8

argues: ―It pains me to say this. Kosal Khek is guilty of second degree murder.‖). Defense

9

counsel argued that the damning instant messages were tough talk between teens trying to fit into

evidence. In light of the evidence at trial, it was an uphill fight for counsel. Most notably, the

12
For the Northern District of California

the gang, and that there were conflicting inferences that could be drawn from some of the

11

United States District Court

10

instant messages Mr. Khek exchanged with Mr. Lee and some other acquaintances were very bad

13

for the defense. Some instant messages indicated a plan to hurt rather than kill in retaliation for

14

the attack on a person affiliated with Mr. Khek‘s gang, but other instant messages plainly

15

contained Mr. Khek‘s statement that he was going to kill Anthony. Most notably, Mr. Khek sent

16

an instant message on the day before the killing, stating, ―‗That bitch is going to fuckin‘ die,‘‖ and

17

sent an instant message just hours before the killing asking another gang member, ―‗do you want

18

to go kill a kid with me?‘‖ RT 2209, 2233. The stipulated statement of Mr. DeJong that was

19

admitted did not mention anything about Mr. Khek‘s intent, and that strongly indicates its

20

admission was harmless.

21

Mr. Khek points out that, even if Mr. DeJong‘s statement looked facially neutral, the

22

prosecutor argued that the jury should infer that Mr. DeJong was the driver who took Mr. Khek to

23

the site and waited while he attacked the victim. Although true, this does not show the admission

24

of this evidence was not harmless error. Mr. Khek did not contend that he was not the person who

25

stabbed Anthony and instead presented a defense that the stabbing was intended to hurt rather than

26

kill Anthony. Connecting Mr. DeJong‘s activity to the stabbing committed by Mr. Khek did

27

nothing to show whether Mr. Khek intended to kill or only to injure when he stabbed the victim.

28

Mr. DeJong‘s statement was as consistent with a stabbing done with the intent to injure as with a
16

1

stabbing done with the intent to kill.
The admission of Mr. DeJong‘s statement also did not have a substantial and injurious

2
3

effect on the verdict with regard to the prosecutor‘s alternate theory that Mr. Khek had committed

4

first degree murder by lying in wait.7 Mr. DeJong‘s statement did not provide any information

5
6

7

The jury was given the following first degree murder instruction that covered deliberate and
premeditated first degree murder, as well as on first degree murder by lying in wait:

7
8
9
10

12
For the Northern District of California

United States District Court

11

13
14

You may not find a defendant guilty of first degree murder
unless all of you agree that the People have proved that the
defendant committed murder. But all of you do not need to agree on
the same theory.
7
A defendant is guilty of first degree murder if the People
have proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to kill.
The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the act that
caused death.

15
16
17
18
19
20
21

22
23
24
25

The length of time the person spends considering whether to
kill does not alone determine whether the killing is deliberate and
premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the
circumstances. A decision to kill made rashly, impulsively, or
without careful consideration is not deliberate and premeditated. On
the other hand, a cold, calculated decision to kill can be reached
quickly. The test is the extent of the reflection, not the length of
time.
A defendant is guilty of first degree murder if the People
have proved that the defendant murdered while lying in wait or
immediately thereafter. A defendant murders by lying in wait if:
1. He concealed his purpose from the person killed;
2. He waited and watched for an opportunity to act;
AND
3. Then, from a position of advantage, he intended to and did make a
surprise attack on the person killed.

26
27
28

The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial enough to show a
state of mind equivalent to deliberation or premeditation.
Deliberation means carefully weighing the considerations for and
17

1

that Mr. Khek was lying in wait. The prosecutor may have used Mr. DeJong‘s statement about

2

driving to the site to support the inference that Mr. Khek was guilty of first degree murder by lying

3

in wait, but other stronger evidence already supported that argument and the prosecutor

4

emphasized that evidence. Phong Nguyen and his girlfriend, Kim Huynh, were eyewitnesses to

5

the stabbing and both knew Mr. Khek from several months earlier when he came to play Xbox at a

6

friend‘s house. RT 1683-85; RT 1717-19. Mr. Nguyen testified that he had seen Mr. Khek

7

walking around the parking lot about a half hour before the stabbing, RT 1682-83; Mr. Khek

8

walked up to Anthony, asked if he was Anthony and, when Anthony confirmed that he was, Mr.

9

Khek immediately stabbed Anthony, RT 1673-74, 1677; the attack was quick, a surprise, and

provided similar testimony, although she did not testify to seeing Mr. Khek in the parking lot

12
For the Northern District of California

unprovoked, RT 1674-75; and Mr. Khek ran away after stabbing the victim, RT 1677. Ms. Huynh

11

United States District Court

10

earlier. Ms. Huynh testified that Mr. Khek approached, asked Anthony if he was Anthony and

13

then stabbed him. RT 1709-11; Mr. Khek then ran off, RT 1712; and Anthony had done nothing

14

to provoke the attack, RT 1713-14. Neither witness had seen the weapon. This eyewitness

15

testimony suggested that Mr. Khek had been waiting and watching for an opportunity to act,

16

concealed his purpose from Anthony, and sprung a surprise attack on the unsuspecting Anthony.

17

Additionally, there were instant messages that suggested that Mr. Khek was planning a surprise

18

attack on Anthony: Mr. Khek obtained a picture of Anthony because he did not know what

19

Anthony looked like, RT 2169-70; Mr. Khek asked about Anthony‘s school schedule, RT 2172;

20

Mr. Khek observed that Anthony and others affiliated with the rival gang knew what Mr. Khek

21

22
23
24
25

against a choice and, knowing the consequences, deciding to act.
An act is done with premeditation if the decision to commit the act
is made before the act is done.
A person can conceal his or her purpose even if the person
killed is aware of the person‘s physical presence.

26
27
28

The concealment can be accomplished by ambush or some
other secret plan.
CT 2572-74 (CALCRIM 521).
18

1

looked like so he had to ―get to know‖ the school ―for a bit,‖ RT 2176-77, which suggested a plan

2

for a surprise attack and quick departure; and Mr. Khek sent a message to Mr. Lee on the day of

3

the killing that he was going to get Anthony after school, RT 2216. Without Mr. DeJong‘s

4

statement, there was plenty of evidence on which the prosecutor could rely for both theories of

5

first degree murder.

argument that the jury could find that Mr. Khek committed first degree murder by lying in wait.

8

See RT 2886 (Lying in wait is ―a term of art. It was a surprise. . . . None of the witnesses actually

9

saw the weapon. Nothing about how the male who walked up to Anthony gave anyone any clue

10

he was about to be killed. There weren‘t any angry words. There wasn‘t any kind of aggressive

11

posturing, posing, stuff like that. He only asked him if he was Anthony. He said yes. And he

12
For the Northern District of California

The prosecutor relied on the testimony of Phong Nguyen and Kim Huynh to support his

7

United States District Court

6

began the attack and fled.‖); RT 2888 (absence of defensive wounds on Anthony‘s arms suggested

13

he did not have enough time to protect himself); RT 2887 (Phong‘s testimony that he ―had seen

14

the attacker earlier walking through the parking lot. This is [an] important fact relevant to lying in

15

wait.‖). The prosecutor also argued at length that Mr. Khek was guilty on a deliberate and

16

premeditated murder theory. See RT 2908-2925. Mr. DeJong‘s name was not even mentioned

17

until 50 pages into the closing argument (at RT 2931), when the prosecutor returned to the lying-

18

in-wait theory. The prosecutor again relied primarily on the testimony of Phong Nguyen and Kim

19

Huynh for the details of the attack, and relied on the testimony of Phong Nguyen who saw Mr.

20

Khek in the parking lot about 20 minutes before the stabbing. RT 2934, 2936. The prosecutor

21

further argued that the evidence supported an inference that Mr. DeJong drove Mr. Khek to the

22

location where Phong saw him about 20 minutes before the stabbing, RT 2934-35, and that Mr.

23

DeJong drove Mr. Khek back to the apartment where they met up with Mr. Lee, RT 2936. The

24

prosecutor also once again returned to arguing that Messrs. Khek and Lee were liable for a

25

deliberate and premeditated first degree murder; Mr. DeJong‘s transportation of Mr. Khek to the

26

stabbing was mentioned but was not the centerpiece of the argument, RT 2940-46. The prosecutor

27

relied much more on the instant messages, the eyewitness testimony, and the retaliatory motive.

28

Id. With the abundance of instant messages and the eyewitness testimony available, the DeJong
19

1

statement was not essential to the prosecutor‘s closing argument.

jury deliberations weigh against a finding of harmless error because lengthy deliberations suggest

4

a difficult case.‘‖ United States v. Lopez, 500 F.3d 840, 846 (9th Cir. 2007) (quoting United

5

States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001)); see, e.g., id. at 846 (jury‘s

6

deliberation for 2-1/2 hours on illegal reentry case suggested any error in allowing testimony or

7

commentary on defendant‘s post-arrest silence was harmless); Velarde-Gomez, 269 F.3d at 1036

8

(jury deliberation for 4 days supported inference that impermissible evidence affected

9

deliberations). The deliberations in Mr. Khek‘s case were remarkably short. After a 30-day trial,

10

the jury took just four hours (including a one-hour lunch break) to reach a verdict. CT 2590. The

11

brevity of deliberations provides a further strong indicator that the admission of Mr. DeJong‘s

12
For the Northern District of California

The length of jury deliberation may be examined when assessing harmlessness. ―‗Longer

3

United States District Court

2

statement was harmless.
Mr. Khek is not entitled to the writ on his Confrontation Clause claim. Although there was

13
14

a Confrontation Clause violation, the error did not have a substantial and injurious effect on the

15

jury‘s verdict.8

16

C.

Juror Misconduct Claim
Mr. Khek contends that his rights to trial by an impartial jury and due process were

17
18

violated due to juror misconduct. He alleges that, although two jurors were dismissed for two

19

incidents of juror misconduct, other jurors were tainted and that deprived him of an impartial jury.

20

Specifically, he argues that Juror Nos. 4, 6, 8, 9 and 10 had concerns. See Docket No. 1 at 19;

21

Docket No. 29 at 9-10.
In a nutshell, Juror No. 10 reported to the court that (a) she saw codefendant Mr. Lee make

22
23

a gun-like gesture with his hand toward the jurors, and (b) several jurors observed a child holding

24
8

25
26
27
28

Mr. Khek also contended in his federal petition that, if his attorney‘s objection to Mr. DeJong‘s
statements based on the ―Sixth Amendment‖ was insufficiently specific to preserve his Crawford
claim, he received ineffective assistance of counsel. The problem he anticipated never arose. The
California Court of Appeal reached the merits of the Crawford claim and did not impose a
procedural bar based on any deficiency in counsel‘s objection. Therefore, the claim of ineffective
assistance of counsel is rejected because the contingency on which it rests -- i.e., a state court
rejection of the Crawford claim because of a failure to adequately object -- did not occur.
20

1

a cell phone in a way that made them think he was taking pictures of them. The court held a

2

lengthy hearing, at which the evidence showed that (a) only Juror No. 10 had seen the alleged gun-

3

like gesture, although she had mentioned to several other jurors that she had seen it and tried to

4

solicit their support in presenting the issue to the judge, and (b) no juror had been photographed

5

because the child with the phone was the victim‘s 11-year old brother playing with a cell phone

6

that had no camera or picture-taking abilities. The trial judge excused Juror No. 10 and Alternate

7

Juror No. 3, but denied the defense motion for a mistrial.

8

1.

9

The California Court of Appeal gave a detailed explanation of the relevant events that

10

began with a note from the jury on the 26th day of a 30-day trial.9

11

After the jury had sent a note to the trial court, the trial court held a hearing after
excusing from the hearing Juror No. 5, Juror No. 9, Alternate Juror No. 1, and
Alternate Juror No. 4, who professed no knowledge of the purpose for the hearing.
The trial court‘s questioning of the remaining jurors revealed the following.

12
For the Northern District of California

United States District Court

Background

13
14

1. Juror No. 10 stated that, when the jury was in the waiting room during the
previous week, a young boy was pointing his cell phone at the jury as if he were
taking the jury‘s picture; Alternate Juror No. 3 stated that he had seen the boy
raising his cell phone as if he were snapping pictures and Juror No. 3 stated that it
looked as if the boy were taking pictures; no other jurors saw the incident but the
jurors had discussed the incident before Juror No. 10 wrote a note to the trial court
to express concerns about the incident.

15
16
17
18

2. Juror No. 10 stated that, on one occasion when the attorneys had approached the
bench, Lee looked at the jury, made a hand gesture at his chin with his hand shaped
like a gun, and scratched his chin when the attorneys turned around and returned to
the defense table; no other jurors saw the incident but the jurors (except Juror No. 4
and Juror No. 11) had discussed the incident before Juror No. 10 wrote the note to
the trial court (the trial court excused Juror No. 4 and Juror No. 11 from the hearing
after learning that they did not participate in the jury discussion about the gun
incident).

19
20
21

22
23

Outside the jury‘s presence, the parties identified the young boy as Anthony
Nguyen‘s brother and the trial court called him to testify. The boy stated that he
possessed a cell phone but it did not have the ability to take photographs. The trial

24
25
26
9

27
28

The note stated: ―‗Your Honor, we the jury need to talk to you alone without counsel,
defendants or audience for a few minutes. It has nothing to do with the case. It‘s about a couple
of incidents that happened. One in the hall outside your courtroom, one inside the courtroom.
Jurors 1 to 12 and Alternate Jurors 1 to 4.‘‖ RT 2410-11.
21

1
2
3
4
5
6
7
8
9
10

12
For the Northern District of California

United States District Court

11

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

court then called the boy‘s father who testified that the boy‘s cell phone did not
have the ability to take photographs. It then called back the individual jurors
separately, questioned them in more detail about the two incidents, allowed
defendants‘ attorneys to question them, and admonished them against talking about
the case among themselves before the case was submitted to them. At the
conclusion of this process, Khek moved for a mistrial grounded on the hand
gesture. He argued that Lee had threatened the jury and he could not therefore
―receive a fair trial because of the actions of Mr. Lee in a case where there are gang
allegations, where there are incredible amounts of evidence showing them doing
things together, for each other, with each other. I don‘t know how to describe Mr.
Lee‘s threatening of jurors in any other way other than just outrageous conduct.‖
Lee moved to discharge Juror No. 10 and Juror No. 3. . . .
The trial court declined to declare a mistrial but agreed to excuse Juror No. 10 and
Alternate Juror No. 3. It explained as follows.
―The Court, as the record will reflect, spent a great deal of time examining the
jurors. Although frankly not required and it‘s strictly within the Court‘s discretion,
the Court felt the issues were important enough to allow counsel to voir dire the
jurors as appropriate because the Court doesn‘t perceive itself as having any
particularized wisdom in fact gathering. Having said that while counsel were
examining the jurors, ... the Court had the opportunity to observe the jurors.... [¶]
The Court nowhere is making any factual findings. It is evident that Juror Number
10 sincerely—and frankly, [trial court addresses Lee‘s counsel], I don‘t think there
was the equivalency—the—I don‘t think she was necessarily backing down. I think
Juror Number 10 is adamant about what she believes she saw and she honestly
believes she saw Mr. Lee make the gesture that she described. At most she would
acknowledge that she couldn‘t know who was in his mind when she believes he
made it. She has told us what her interpretation was. [¶] It is clear that none of the
other 15 jurors saw the gesture or any type of gesture from Mr. Lee or Mr. Khek
that would approximate the description of Juror Number 10. None, and all clearly
conceded, none are in a position to evaluate whether it happened or it didn‘t
happen. [¶] You challenged Juror Number 10, if any, challenged Juror Number 10‘s
credibility for her honest belief in what she says she saw. But all of the rest were
very frank that they didn‘t see anything. Notwithstanding that, Juror Number 10 did
discuss her observations with most if not all of the balance of the jurors. There
were several that were not involved in the discussion. And it was a combination of
her telling them what she saw combined with showing them the note she wrote to
give us on Monday and seeking their support as it were of the presentation of the
note. For her reasons and—speculation may be the wrong word—there are
inferences to be drawn as to why she would do that. I think she has concerns. I
think she wanted support from the balance of the jury, and notwithstanding the
admonitions she shared all that information and sought to perhaps bolster the note
she referenced to the jurors she showed it to some of them the issues regarding the
young man and the alleged perceptions or the perceptions of the cell phone and/or
photos. Her observations of the young man involved her assumptions that it was a
camera, and frankly most of the other jurors related their assumptions. This started
apparently with one or more jurors standing in the hallway seeing the young man
who apparently was making his presence aware to those around him because he‘s
22

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5
6
7
8
9
10

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For the Northern District of California

United States District Court

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an eleven year old and causing one of the jurors to question, as Juror Number 3 told
us, I wonder if he can take pictures. And that then evolved into certainly Juror
Number 10 being concerned that their security was at risk if the young man was
taking pictures of one or more of the jurors. To the extent there are facts, those are
the facts. [¶] The only additional facts have to do with the discussion between
Alternate Juror Number 3, Alternate Juror Number 1, and Juror Number 9 Monday
after the noon recess prior to the beginning of the afternoon when we were in fact
joined by alternate Juror Number 3. And the issue of the comments made by
Alternate Juror Number 3 to Juror Number 9 not heard by [A]lternate Juror
Number 1.... [¶] ... [¶] Alternate Juror Number 3 has—the questions the Court and
counsel presented to him, his answers were all straight forward. He presented a
demeanor that suggested no problem with moving forward. Some concerns about
the issues regarding the camera. The flavor of the conversation with Juror Number
9, however, gives the Court pause for concern. That—not that he is failing to be
candid, because I‘m not sure whether he failed to deliver on specific questions
asked, but he clearly understood the subjects of discussion. He immediately
preceding [sic ] that he had had a discussion with Jurors 9 and Alternate [No.] 1
that expressed his concerns, his feelings vis-à-vis retaliation, how those issues
could be dealt with, protection, and conveyed a state of mind that the Court feels
compromises his ability to be a fair and impartial juror. And the Court is going to
exclude—is excusing, discharging Alternate Juror Number 3 as well as Juror
Number 10.[¶] As to the balance of the jurors I‘m not going to walk through them
individually. They‘ve been outlined. Their words will stand for themselves. I will
say as to the remain[ing] jurors there was nothing in their demeanor, their
responses, that suggested other than an honest understanding of the law, an honest
understanding of their responsibility, the unfortunate as suspects of receiving the
information they received, clear recognition that none of those are facts in the case
proven as facts in the case, and will not be considered by them in any way, shape,
or form; and the Court finds no concern or basis ultimately to cause excusal of any
of the rest of the jurors beyond the two that have been outlined.‖

18
19
20

After excusing Juror No. 10 and Alternate Juror No. 3, the trial court admonished
the jury against speculating about the jurors‘ absence and reminded the jury to
bring concerns or issues about the case to it rather than discussing the point among
themselves. It then replaced Juror No. 10 with Alternate Juror No. 4.

21

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23
24
25
26
27
28

Cal. Ct. App. Opinion, at 18-22.
The California Court of Appeal rejected Mr. Khek‘s claim that the denial of his mistrial
motion violated his state and federal rights to trial by an impartial jury. The court explained that
―none of the deciding members of the jury saw Lee‘s gesture. The communicative content of the
gesture was not about guilt or innocence. And the jurors‘ discussions about the gesture were about
the gesture, not the facts of the case. The presumption of prejudice simply did not arise in this
case.‖ Cal. Ct. App. Opinion, at 24. And, even if the presumption did arise, it was ―rebutted by
23

1

evidence that no prejudice actually occurred.‖ Id.

2
3
4
5
6
7
8
9

Here, the trial court implicitly concluded that the jury‘s impartiality had not been
adversely affected. It articulated that the demeanor and responses of the remaining
jurors convinced it that those jurors had an honest understanding of the law and
their responsibility such that they would not consider the hand gesture in any way,
shape, or form. We accept this determination. (People v. Nesler, supra, 16 Cal.4th
at p. 582 & fn. 5 [―We accept the trial court‘s credibility determinations and
findings on questions of historical fact if supported by substantial evidence.‖].)
And, again, the gesture was not about guilt or innocence; it did not cause the jury to
converse about guilt or innocence; and it was not inherently prejudicial because
none of the remaining jurors saw the gesture. Moreover, the trial court admonished
the jury against speculating about the reasons why Juror No. 10 and Alternate Juror
No. 3 had been excused. There is no reasonable probability of prejudice.

10

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For the Northern District of California

United States District Court

11

Cal. Ct. App. Opinion, at 24-25 (alteration in original).
The California Court of Appeal also determined that the cell phone incident did not

13

warrant relief. That incident was ―more accurately characterized as spectator misconduct,‖ and

14

did not warrant relief because prejudice is not presumed and none was shown. Id. at 25.

15
16
17
18
19
20

The cell phone incident was not of such a character as to prejudice defendants or
influence the verdict for the same reasons we have given about the hand gesture
incident. The jurors who saw the boy did not know whether he was, in fact,
photographing them; being photographed did not pertain to defendants‘ guilt or
innocence; being photographed did not cause the jurors to converse about guilt or
innocence; being photographed is not inherently prejudicial; and the trial court
admonished the jurors and became satisfied that the incident had not adversely
affected the jurors‘ impartiality.

21

Id. at 26.

22

2.

23
24

Analysis of Juror Misconduct Claim
a.

State Court Did Not Unreasonably Apply Supreme Court Precedent

The Sixth Amendment guarantees the criminally accused the right to a fair trial by a panel

25

of impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). The

26

jury‘s verdict ―‗must be based upon the evidence developed at the trial.‘‖ Turner v. Louisiana,

27

379 U.S. 466, 472 (1965). ―In the constitutional sense, trial by jury in a criminal case necessarily

28

implies at the very least that the ‗evidence developed‘ against a defendant shall come from the
24

1

witness stand in a public courtroom where there is full judicial protection of the defendant‘s right

2

of confrontation, of cross-examination, and of counsel.‖ Id. at 472-73. Juror exposure to

3

extraneous influences is considered juror misconduct, even when the exposure is not the juror‘s

4

fault.

5

The ―clearly established Federal law, as determined by the Supreme Court of the United

6

States,‖ 28 U.S.C. § 2254(d), regarding juror misconduct based on extrinsic influences comes

7

from three Supreme Court cases: Mattox v. United States, 146 U.S. 140 (1892), Remmer v. United

8

States, 347 U.S. 227 (1954), and Smith v. Phillips, 455 U.S. 209, 217 (1982). In Mattox, the

9

Supreme Court articulated the rule: ―Private communications, possibly prejudicial, between jurors

the verdict, at least unless their harmlessness is made to appear.‖ Mattox, 146 U.S. at 150.

12
For the Northern District of California

and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate

11

United States District Court

10

Remmer later restated the rule and elaborated on the presumption of prejudice:

13
14
15
16
17
18
19

In a criminal case, any private communication, contact, or tampering directly or indirectly,
with a juror during a trial about the matter pending before the jury is, for obvious reasons,
deemed presumptively prejudicial, if not made in pursuance of known rules of the court
and the instructions and directions of the court made during the trial, with full knowledge
of the parties. The presumption is not conclusive, but the burden rests heavily upon the
Government to establish, after notice to and hearing of the defendant, that such contact
with the juror was harmless to the defendant.
Remmer, 347 U.S. at 229.
The Smith case focused on the procedural steps the trial court must take when potential

20

juror misconduct arises. The Constitution ―does not require a new trial every time a juror has been

21

placed in a potentially compromising situation.‖ Smith, 455 U.S. at 217. ―Due process means a

22

jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever

23

watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when

24

they happen.‖ Id. The trial judge can ―‗determine the circumstances, the impact thereof upon the

25

juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted

26

to participate.‘‖ Id. at 216 (quoting Remmer, 347 U.S. at 230) (alterations in original). The trial

27

judge may ascertain the impartiality of the juror ―by relying solely upon the testimony of the juror

28

in question.‖ Id. at 215; see also id. at 217 n.7 (rejecting the argument that the evidence from the
25

1

juror in question ―is inherently suspect‖).
The California Court of Appeal‘s rejection of Mr. Khek‘s juror misconduct claim was not

2
3

contrary to or an unreasonable application of any holding from the U.S. Supreme Court. Mr.

4

Khek identifies no Supreme Court precedent for his contention that a presumption of prejudice

5

arises with regard to jurors who did not observe the alleged communicative gesture. Remmer does

6

not state that a presumption of prejudice arises for the entire jury whenever one juror is exposed to

7

a private communication, contact or tampering. Such a finding would require an extension of

8

Remmer; under AEDPA, a state court‘s failure to extend a Supreme Court precedent is not an

9

unreasonable application for purposes of § 2254(d)(1). See White v. Woodall, 134 S. Ct. 1697,

10

1706 (2014).
Although a presumption of prejudice may have arisen for Juror No. 10 because she

12
For the Northern District of California

United States District Court

11

believed that she saw codefendant Mr. Lee make a gun gesture, that does not help Mr. Khek

13

because Juror No. 10 was dismissed from the jury.10 The state appellate court reasonably

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15
16
17
18
19
20
21

22
23
24
25
26
27
28

10

Juror No. 10‘s observation of a gun gesture by Mr. Lee would have been extrinsic evidence
because it did not ―come from the witness stand.‖ Turner, 379 U.S. at 473. See United States v.
Simtob, 485 F.3d 1058, 1064-65 (9th Cir. 2007) (defendant‘s alleged act of ―eye-balling‖ a juror
that made the juror feel ―threatened‖ raised a presumption of prejudice ―because ‗even indirect
coercive contacts that could affect the peace of mind of the jurors give rise to the Remmer
presumption‘‖); United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987) (prosecutor‘s
comment on nontestifying defendant‘s courtroom laughter during presentation of evidence of his
threatening comments impinged on defendant‘s Fifth Amendment right not to be convicted except
on the basis of evidence adduced at trial). Therefore, the presumption of prejudice arose with
regard to Juror No. 10 under Remmer, 347 U.S. at 228, because that presumption arises when the
juror is exposed to an extrinsic influence.
The Court notes that some courts have rejected the idea that a defendant‘s in-court
behavior actually can amount to an extrinsic influence on a juror. See Schuler, 813 F.2d at 983
(Hall, J., dissenting) (―The principle that a defendant‘s courtroom demeanor is evidence is wellsettled‖); Wilson v. United States, 505 F. App‘x 884, 886 (11th Cir. 2013) (―We have yet to
consider in a published opinion whether a defendant‘s alleged staring at the jury constituted an
‗extraneous‘ or ‗extrinsic‘ contact such that the district court was required to conduct further
inquiry [under Remmer, 347 U.S. 227], and we note that our sister circuits are split on the issue‖);
Waller v. United States, 179 F. 810, 812 (8th Cir. 1910) (―The demeanor of the defendant is not
only proper evidence, but it is impossible to prevent the jury from observing and being influenced
by it.‖). See generally 2 J. Wigmore, Evidence § 274 (J. Chadbourn rev. ed. 1979) (―the attempt to
force a jury to become mentally blind to the behavior of the accused sitting before them involves
both an impossibility in practice and a fiction in theory‖).
26

1

determined that the presumption of prejudice did not arise as to any juror who did decide Mr.

2

Khek‘s guilt.

3

Even if Juror No. 10‘s discussion of his her observation with other jurors were sufficient to

4

give rise to a presumption of prejudice, the California Court of Appeal also determined that any

5

such presumption was rebutted by evidence that no prejudice actually occurred. This also was not

6

contrary to or an unreasonable application of Supreme Court precedent.

7

The hearing held in Mr. Khek‘s case adhered to the procedure suggested in Smith v.

8

Phillips, determining what happened, and the impact thereof upon the jurors, and the prejudicial

9

effect (if any) of the circumstances ―in a hearing with all interested parties permitted to

about a day and a half, during which the jurors (including alternates) were questioned individually

12
For the Northern District of California

participate.‖ Smith, 455 U.S. at 217. In Mr. Khek‘s case, the trial court held a hearing that took

11

United States District Court

10

by the judge, prosecutor and defense counsel. See RT 2410-2629; CT 2521-25 (7/26/10 minutes),

13

2526-27 (7/27/10 minutes), CT 2541 (7/28/10 minutes). The judge announced his decision at the

14

end of the hearing, and explained his reasoning the next day. RT 2628, 2636-43.

15

Mr. Khek disagrees with the state court‘s conclusion that the jurors who remained were not

16

affected by the alleged gun gesture and the alleged picture-taking. Specifically, he urges that Juror

17

Nos. 4, 6, 8, and 9 were not the impartial jurors to which he was entitled. See Docket No. 1 at 19;

18

Docket No. 29 at 9-10. According to Mr. Khek, Juror Nos. 4 and 6 ―acknowledged being

19

‗uncomfortable‘ about the possibility that [the child] might have taken pictures of jurors with his

20

cell phone,‖ Docket No. 1 at 19; Juror No. 8 ―began scrutinizing codefendant Lee‘s courtroom

21

behavior more carefully,‖ id.; and Juror No. 9 ―acknowledged being a ‗little concerned,‘‖ id. A

22

review of these jurors‘ responses shows Mr. Khek‘s argument to be unpersuasive.

23

Juror No. 4: Juror No. 4 did not learn about the incidents until Juror No. 10 showed her

24

the note before sending it to the court. RT 2580. She had not seen the child taking pictures, and

25

did not hear about the gesture until Juror No. 10 mentioned it in court. RT 2580, 2582. When

26

asked by the court how the information she now had been made aware of would affect her as a

27

juror, she responded: ―I don‘t have a problem with it. I mean at first I felt a little ‗should I be

28

threatened?‘ when I found out -- if he was taking pictures. I don‘t know if he was. That made me
27

1

a little uncomfortable but it‘s not going to change anything.‖ RT 2582. Juror No. 4 agreed that

2

she understood that information that came to her from third parties was not evidence. RT 2583.

3

She then confirmed that her ability to do her juror functions was not impaired:

4

6

The Court: Are your abilities to follow the law, the presumption of
innocence, the burden of proof beyond a reasonable doubt,
evaluating credibility of witnesses, are any of those challenged you
believe because of these I‘ll say allegations?

7

Trial Juror No. 4: No.

8

The Court: Is your ability to interact with the rest of the jurors
challenged?

5

9

Trial Juror No. 4: No.

10

The Court:

13
14

Is anyone standing here inhibited by what occurred?

Trial Juror No. 4: No.

12
For the Northern District of California

United States District Court

11

RT 2583.
Juror No. 4 may have had a brief moment of concern when she wondered if she should feel

15

threatened, but her responses overall showed that she was unaffected by the incidents and

16

remained able to function as an impartial juror. Her transient moment of concern did not show her

17

to be unable to be an impartial juror.

18

Juror No. 6: Juror No. 6 did not see the gun gesture and did not learn of it until Juror No.

19

10 told her several days earlier. RT 2565, 2568. Juror No. 6 thought there could be ―several

20

explanations‖ for the gesture Juror No. 10 showed her. RT 2566-67. Juror No. 6. also did not see

21

the child with the camera, but had heard about it from other jurors. RT 2568. She and other jurors

22

discussed that it was ―an uncomfortable situation‖ having to wait in the hallway ―with the

23

witnesses and the families, and sometimes we felt they were too close and we didn‘t really know

24

how to handle that. But I didn‘t take that as threatening, just uncomfortable because it‘s [a]

25

sensitive issue.‖ RT 2568. The court then asked how the events impacted her service as a juror,

26

and she responded: ―I think it‘s unfortunate it‘s kind of spread this far. But it‘s -- I don‘t feel

27

threatened because I didn‘t see it. I don‘t know if that‘s naïve of me. And I understand it‘s a

28

sensitive situation.‖ RT 2571. Juror No. 6 agreed there was no evidence on the gesture; she could
28

1

compartmentalize and put aside whatever Juror No. 10‘s observation was and do her juror duties.

2

RT 2573-74. Juror No. 6 agreed that neither of the defendants lost their presumption of

3

innocence, nor the benefit of requiring proof beyond a reasonable doubt as a result of these

4

incidents, and that she would decide the case solely on the evidence she heard in court. RT 2574-

5

75.

6

Mr. Khek erroneously states that this juror felt uncomfortable about the possibility of the

7

boy taking pictures. Instead, what the juror said was that she felt that the social situation of being

8

a juror in a hallway with families and witnesses in a murder case was an uncomfortable setting.

9

Juror No. 6‘s awareness of a socially awkward situation does not reasonably call into question her

10

impartiality.
Juror No. 8: This juror first learned about the note from Juror No. 10 that morning before

12
For the Northern District of California

United States District Court

11

it was presented to the court. RT 2549. She did not know about the gesture or the picture taking

13

before then. RT 2550. The comments by Juror No. 10 made her notice Mr. Lee a little more.

14
15
16
17
18
19
20
21

22
23
24
25
26

The Court: Do you have any basis to evaluate not the sincerity of
[Juror No. 10‘s] belief but the truth or falseness of what it is she
believes or said she saw?
Trial Juror No. 8: As far as the hand motion the only thing, since
she said -- she had mentioned it this morning, I did look at him
today in court and I think that he just -- I mean I saw him doing a lot
of different things, you know, scribbling or, you know. I didn‘t
notice any motion that I felt threatened by, but he seems to be
someone that uses his hands, right.
The Court: All right. So do I take that you were either looking for
something that would either give you confirmation of its truthfulness
or an explanation as to how it could be misunderstood or just
something to help you one way or the other?
Trial Juror No. 8: Yeah.
The Court: And what guidance, if any, did you draw from that?
Trial Juror No. 8: For me I kind of took it as it‘s just something that
he‘s -- you know, some people talk a lot with their hands or when
they‘re sitting they do little thing. That‘s how I took it.

27

The Court: So you don‘t draw the adverse inference that she seems
to have drawn from what she related to you?

28

Trial Juror No. 8: Correct.
29

1

RT 2550-51. The juror was further questioned on this point by Mr. Khek‘s attorney (Mr. Johnson)

2

and by Mr. Lee‘s attorney (Mr. Pointer):

3

Mr. Johnson: After [Juror No. 10] mentioned this to you this
morning, it directed your attention to Mr. Lee; is that right?

4

Trial Juror No. 8: At one of the points, yes, I looked over at Mr.
Lee.

5
6
7

Mr. Johnson: So after this morning is it fair to say that you were
watching his demeanor in court maybe more carefully than you had
prior to this morning?

8

Trial Juror No. 8: Probably a little bit more I looked over, yeah.

9

Mr. Johnson: Thank you.

10

*

*

12
For the Northern District of California

United States District Court

11

*

Mr. Pointer: Juror Number 8, did you draw any conclusions at all
when you noticed Mr. Lee when you looked over at his demeanor
this morning?

13

Trial Juror No. 8: Did I notice anything?

14

Mr. Pointer: Was there anything that you felt was different than the
way he appeared up until this question had arisen?

15

17

Trial Juror No. 8: Nothing different. I mean I did notice that, you
know, he did this type of thing (indicating) or he would scribble on a
note pad; but I believe I‘ve seen him scribbling on a note pad other
days as well.

18

Mr. Pointer: Being fidgety?

19

Trial Juror No. 8: Yeah.

16

20
21

RT 2554-55.
Juror No. 8 agreed that she could do her juror duties, would decide the case solely on the

22

evidence heard in court, and would compartmentalize and set aside the information she heard from

23

Juror No. 10. RT 2552. She confirmed that what had occurred did not affect her ―evaluation of

24

the presumption of innocence afforded to Mr. Lee and Mr. Khek and [her] responsibilities on the

25

proof beyond a reasonable doubt.‖ RT 2552.

26

Mr. Khek claims that lack of impartiality is shown by the fact that Juror No. 8 took greater

27

notice of Mr. Lee. Merely taking greater notice of a defendant did not show that she was not an

28

impartial juror, particularly since she observed nothing troubling to her. After looking at Mr. Lee,
30

1

Juror No. 8 came to the conclusion that he was merely a fidgety person and one who used his

2

hands a lot. These observations did not impede her abilities to do her juror duties.

3

Juror No. 9: Juror No. 9 first became aware of the note that morning when Juror No. 10

4

was showing it to other jurors. RT 2519-20. Then after lunch, Alternate Juror No. 3 relayed to

5

him the substance of Juror No. 10‘s concerns. Juror No. 9 did not ―really know what to think of it.

6

I don‘t think -- it doesn‘t really mean anything to me.‖ RT 2523. He saw the boy holding up his

7

cell phone, pretending like he was talking on it -- ―I didn‘t know what he was doing but I thought

8

it was a little weird.‖ RT 2524. It did not occur to Juror No. 9 that the boy was taking pictures

9

until he heard this morning that it was a possibility. RT 2524.

10

The Court: When you heard [about Juror No. 10‘s observations] as
you think about it now does that give you pause for concern?

12
For the Northern District of California

United States District Court

11

Trial Juror No. 9: It concerned me a little. Not really in the case,
like it‘s not really going to [a]ffect my decision as a juror. But it‘s
just a little myself I was concerned. But I don‘t know if it‘s true and
whatnot. It just made me think of it.

13
14

The Court: And as you‘re sitting here now what does it make you
think?

15
16

Trial Juror No. 9: I‘m not really sure. I don‘t know. I‘m okay with
it I guess. I really don‘t know what happened, so.

17
18

RT 2525-26. Juror No. 9 clearly conveyed that his lack of opinion about the incidents stemmed

19

from him not knowing what actually happened. See RT 2525-26. Juror No. 9 agreed that what

20

had happened would not compromise his ability to follow the law or spill over against Mr. Khek.

21

RT 2526.

22

Juror No. 9 also stated that, when Alternate Juror No. 3 told him and another juror what

23

was going on after lunch that day, Alternate Juror No. 3 said, ―well, if anything happens my

24

friends or my cousin is a probation officer -- I don‘t know, something. His brother is a

25

policeman.‖ RT 2528. When Juror No. 9 heard that, ―‗[i]t just kind of seemed out of the ordinary

26

to me. Like I didn‘t think anything of it until it was mentioned. And I had a moment of concern

27

like, well, what does this mean for the rest of the case but that was it.‖ RT 2528. He also stated

28

he was ―a little surprised‖ by what Alternate Juror No. 3 said; ―I didn‘t see anything like that, so I
31

1

didn‘t really know what to think.‖ RT 2529. Juror No. 9 agreed that what he had heard in the

2

hallway and outside of court was not evidence and he could keep it separate from his juror

3

duties. RT 2529.

4

Juror No. 9 thus was shown to have feelings of concern when he heard the incidents

5

mentioned during that day, including when Alternate No. 3 suggested he had friends in law

6

enforcement to turn to for protection. But Juror No. 9 also confirmed that none of the information

7

compromised his ability to decide the case based solely on the evidence. He further agreed that he

8

understood that the information he heard was not evidence and could keep it separate from his

9

juror duties. Mr. Khek has not shown that Juror No. 9 was not an impartial juror.

10

The trial judge, who was in a good position to observe the demeanor of the jurors as they
responded to questioning, made factual findings that the jurors‘ responses and demeanors showed

12
For the Northern District of California

United States District Court

11

an honest understanding of the law, an honest understanding of their responsibility as jurors, and a

13

willingness to set aside the information that had been received. RT 2637-41, 2643. The trial court

14

found ―no concern or basis ultimately to cause excusal of any of the rest of the jurors‖ other than

15

Juror No. 10 and Alternate Juror No. 3. RT 2643. Mr. Khek has not overcome the presumption of

16

correctness that attaches to those factual findings. See Hedlund v. Ryan, 750 F.3d 793, 807 (9th

17

Cir. 2014) (in a § 2254 proceeding, the state trial judge‘s findings regarding juror bias or

18

misconduct are ―‗presumptively correct‘ and cannot be overcome without clear and convincing

19

evidence‖). Although there was some concern expressed, none of the jurors expressed any

20

reluctance to continue to serve as a juror or inability to properly discharge his or her juror duties.

21

As the Ninth Circuit recently observed, there is no ―per se rule in which exposure to any out-of-

22

trial information automatically requires juror dismissal. Such an approach is plainly inconsistent

23

with Mattox and its progeny.‖ Zapien v. Martel, 805 F.3d 862, 873 (9th Cir. 2015) (denying

24

habeas relief where state court rejected juror misconduct claim after trial court held a hearing at

25

which judge questioned juror who admitted to hearing a news report that suggested the defendant

26

would hurt his guards if he were given the death penalty, and ruled the juror was capable of being

27

impartial). As in Zapien, the state appellate court‘s determination that ―the trial court properly

28

determined the juror[s] could be impartial‖ was ―in substance‖ an application of the
32

1

Mattox/Remmer presumption which requires the federal habeas court to be ―doubly deferential.‖

2

Zapien, 805 F.3d at 873. Also as in Zapien, the state appellate court‘s ―decision was at least

3

reasonable,‖ and therefore does not support federal habeas relief.
b.

4

Any Error Was Harmless

Even if there was a constitutional error in not declaring a mistrial due to juror misconduct,

5
6

federal habeas would not be available if it was harmless. The receipt of extrinsic evidence or

7

extraneous information by jurors is ―generally subject to a ‗harmless error‘ analysis, namely,

8

whether the error had [a] ‗substantial and injurious‘ effect or influence in determining the jury‘s

9

verdict.‖ Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008); see Brecht v. Abrahamson,

together comfortably, both must be applied. See generally Barnes v. Joyner, 751 F.3d 229, 252-53

12
For the Northern District of California

507 U.S. 619, 638 (1993)). Although the Remmer presumption and the Brecht test do not fit

11

United States District Court

10

(4th Cir. 2014) (remanding to district court for application of Brecht test, after concluding that the

13

state court‘s adjudication of the juror misconduct claim was an unreasonable application of

14

Remmer).11 The Remmer presumption applies to determine whether there was juror misconduct

15
16
17
18
19
20
21

22
23
24
25
26
27
28

11

The Ninth Circuit‘s cases on juror misconduct have taken several different approaches, with
none of those cases actually holding that both the Remmer presumption and Brecht test should be
applied or that one test should be used to the exclusion of the other. Compare Smith v. Swarthout,
742 F.3d 885, 894 (9th Cir. 2014) (not mentioning Remmer, Mattox or any presumption of
prejudice; ―[o]n collateral review, trial errors—such as extraneous information that was
considered by the jury—are generally subject to a ‗harmless error‘ analysis, namely, whether the
error had ‗substantial and injurious‘ effect or influence in determining the jury‘s verdict‖), and
Estrada, 512 F.3d at 1235, 1238 (applying Brecht test to evaluate the consideration of extraneous
information by the jury), with Caliendo v. Warden of California Men’s Colony, 365 F.3d 691, 697,
699 (2004) (reversing with directions to grant relief after concluding only that state court‘s failure
to presume prejudice under the Remmer/Mattox rule was contrary to clearly established federal
law), and Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012) (identifying the Remmer
presumption as part of the juror misconduct rule and finding no error), with Fields v. Brown, 503
F.3d 755, 779-81 (9th Cir. 2007) (en banc) (pre-AEDPA case, mentioning the Remmer/Mattox
rule and declining to decide whether the event (a juror‘s use of a Bible to make a list of pros and
cons, with Biblical passages as support) was juror misconduct because it was harmless under the
Brecht standard). By applying both the Remmer presumption and the Brecht test, this Court
follows both the spirit of § 2254(d)(1), which requires the Court to look to Supreme Court
precedent to identify the ―clearly established law‖ by which to evaluate a habeas claim, and the
purpose of Brecht, which limits habeas relief only to those constitutional errors that have an actual
and injurious effect on the jury‘s verdict.
33

1

(including whether the juror was prejudiced) amounting to a constitutional violation; Brecht

2

applies to determine whether the constitutional violation was harmless to the petitioner. When the

3

court applies the Brecht test, the petitioner is ―not . . . entitled to the Remmer presumption in

4

attempting to make this [Brecht] showing because the presumption does not apply in the federal

5

habeas context when proving a substantial and injurious effect or influence on the jury’s verdict.

6

Therefore, to be entitled to habeas relief, [the petitioner] will need to affirmatively prove actual

7

prejudice by demonstrating that the jury‘s verdict was tainted by the extraneous communication.‖

8

Barnes, 751 F.3d at 252-53 (emphasis added) (citation omitted).

9

Habeas relief is not available on the juror misconduct claim in this case because Mr. Khek
has not shown that the constitutional error had a substantial and injurious effect or influence on the

11

jury‘s verdict.

12
For the Northern District of California

United States District Court

10

First, there was substantial evidence of Mr. Khek‘s guilt. As mentioned in the harmless

13

error analysis in the Confrontation Clause section, i.e., section B.2 above, there were the extremely

14

damaging instant messages in which he announced his intent to kill Anthony and there was

15

eyewitness testimony that he did in fact kill Anthony in a surprise attack.

16

Second, the incidents were brief and became known to most jurors at least several days

17

before jury deliberations began -- i.e., Juror No. 10 sent the note to the court on the 26th day of

18

trial, and the deliberations did not begin until the 30th day of trial. The other jurors had learned of

19

the alleged gun gesture and picture-taking that day, or during the preceding week. The juror

20

misconduct that occurred days before deliberations began, and as to which the court was able to

21

provide admonishments to the jurors, was less likely to have any impact on the jury‘s verdict. See

22

generally Henry, 720 F.3d at 1086 (―The Supreme Court, for instance, has found juror misconduct

23

to warrant reversal in cases involving extended external influences on jurors or confirmed juror

24

bias – neither of which is present here‖).

25

Third, the jury deliberated only about four hours before returning a verdict in this 30-day

26

trial, suggesting this was not a close case. See United States v. Lopez, 500 F.3d at 846 (―‗Longer

27

jury deliberations weigh against a finding of harmless error because lengthy deliberations suggest

28

a difficult case.‘‖).
34

1

Mr. Khek has not shown that any error in not declaring a mistrial due to juror misconduct

2

had a ―substantial and injurious effect or influence in determining the jury‘s verdict,‖ Brecht, 507

3

U.S. at 637. Mr. Khek therefore is not entitled to federal habeas relief on his juror misconduct

4

claim.

5
6

c.

No Juror Bias

The presence of an actually biased juror would violate the Sixth Amendment‘s right to an

existence of a state of mind that leads to an inference that the person will not act with entire

9

impartiality.‘ Actual bias is typically found when a prospective juror states that he can not be

10

impartial, or expresses a view adverse to one party‘s position and responds equivocally as to

11

whether he could be fair and impartial despite that view.‖ Fields v. Brown, 503 F.3d 755, 767 (9th

12
For the Northern District of California

impartial jury and would support habeas relief. Actual bias in a juror has been defined as ―‗the

8

United States District Court

7

Cir. 2007) (en banc) (citations omitted) (rejecting claim of actual bias in juror who said he put

13

aside the fact that his wife was the victim of a similar assault and represented that he was

14

impartial). ―It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and

15

render a verdict based on the evidence presented in court.‖ Irvin v. Dodd, 366 U.S. 717, 723

16

(1961) (defendant was denied a trial by an impartial jury as a result of extensive adverse pretrial

17

publicity). Implied bias (e.g., bias that may be presumed from a juror who repeatedly lies during

18

voir dire or a juror who is closely related to a litigant) would not support habeas relief because the

19

―Supreme Court has never explicitly adopted or rejected the doctrine of implied bias.‖

20

See Hedlund, 750 F.3d at 808. Unlike juror misconduct, the presence of an actually biased juror is

21

structural error, requiring a new trial without a need to show prejudice under Brecht. See Smith v.

22

Swarthout, 742 F.3d 885, 892 n.2 (9th Cir. 2014).

23

For the same reasons discussed in the juror misconduct section above, the Court concludes

24

that Mr. Khek has not shown juror bias in any of the jurors who remained on the jury that

25

deliberated. Juror Nos. 4, 6, 8 and 9 expressed some limited concerns, but Mr. Khek falls far short

26

of showing that any of them had a state of mind that leads to an inference that any of them would

27

not act with impartiality in considering this case. In addition to their words, these jurors‘

28

inflection, tone and demeanor are the sort of factors that go into the trial judge‘s determination of
35

1

their impartiality and ability to serve as jurors. The presumption of correctness under 28 U.S.C. §

2

2254(e)(1) in the trial court‘s determination that the remaining jurors were not actually biased has

3

not been overcome by Mr. Khek. See Hedlund, 750 F.3d at 807 (in a § 2254 proceeding, the state

4

trial judge‘s findings regarding juror bias or misconduct are ―‗presumptively correct‘ and cannot

5

be overcome without clear and convincing evidence‖); cf. Skilling v. United States, 561 U.S. 358,

6

395-96 (2010) (in reviewing claims that the trial court failed to dismiss a juror for actual bias

7

during voir dire, ―the deference due to district courts is at its pinnacle.‖) It was not an

8

unreasonable application of Supreme Court precedent for the California Court of Appeal to

9

conclude that Mr. Khek had not shown actual bias by any of the jurors who remained on the jury

10

that decided his case.
Mr. Khek cannot obtain relief on his claim that he was denied a trial by an impartial jury

12
For the Northern District of California

United States District Court

11

because he has not met his burden to show that the California Court of Appeal‘s rejection of his

13

jury misconduct claim ―was so lacking in justification that there was an error well understood and

14

comprehended in existing law beyond any possibility for fairminded disagreement.‖ Harrington

15

v. Richter, 562 U.S. 86, 103 (2011) (discussing the very restrictive nature of § 2254(d)).

16

D.

Admission of Photo Of Victim

17

1.

Background

18

Mr. Khek contends that the admission of a photo of the dead victim‘s body at the crime

19

scene violated his right to due process. The photo was objectionable, in Mr. Khek‘s view, because

20

it depicted the abdominal wound with several inches of intestines protruding from the victim‘s

21

abdomen where he had been stabbed.

22

The admissibility of several photos was considered outside the presence of the jury. The

23

prosecution wanted to introduce several photos from the crime scene and the autopsy. Defense

24

counsel objected to several photographs as being unduly prejudicial in that they were ―gruesome.‖

25

RT 602. After hearing arguments and studying the packet of photos, the court determined the

26

photos were relevant. The trial court acknowledged that the photos were ―gruesome,‖ but also

27

recognized that they accurately represented the crime scene and were relevant to several issues,

28

including intent, malice, premeditation and deliberation. RT 619-20. The trial court applied
36

1

California Evidence Code § 352, choosing to admit just one photo from the crime scene to show

2

the result of the abdominal wound while excluding other photos as cumulative or unduly

3

prejudicial relative to their probative value.12
The California Court of Appeal rejected the challenge to the admission of the photo of the

4

discussed the admission of the evidence under California Evidence Code section 352 and did not

7

discuss the claim that the admission of the evidence violated Mr. Khek‘s federal right to due

8

process. Because the federal constitutional claim was rejected by the state appellate court without

9

explanation, this Court ―must determine what arguments or theories supported or . . . could have

10

supported, the state court‘s decision; and then it must ask whether it is possible fairminded jurists

11

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

12
For the Northern District of California

victim with his intestines protruding from the abdominal knife wound. The appellate court only

6

United States District Court

5

decision of [the U.S. Supreme] Court.‖ Harrington v. Richter, 562 U.S. 86, 102 (2011).

13

2.

Analysis

14

The United States Supreme Court has never held that the introduction of propensity or

15

other allegedly prejudicial evidence violates due process. See Estelle v. McGuire, 502 U.S. 62,

16

68-70 (1991); id. at 75 n.5 (―we express no opinion on whether a state law would violate the Due

17

Process Clause if it permitted the use of ‗prior crimes‘ evidence to show propensity to commit a

18

charged crime‖).
In Estelle v. McGuire, the defendant was on trial for murder of his infant daughter after she

19
20

was brought to a hospital and died from numerous injuries suggestive of recent child abuse.

21

Defendant told police the injuries were accidental. Evidence was admitted at trial that the coroner

22

discovered during the autopsy older partially healed injuries that had occurred six to seven weeks

23

before the child‘s death. Id. at 65. Evidence of the older injuries was introduced to prove

24

―battered child syndrome,‖ which ―exists when a child has sustained repeated and/or serious

25
26
27
28

12

Similar in function to Federal Rule of Evidence 403, California Evidence Code section 352
provides: ―The court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.‖
37

1

injuries by nonaccidental means.‖ Id. at 66. The state appellate court had held that the proof of

2

prior injuries tending to establish battered child syndrome was proper under California law. Id. In

3

federal habeas proceedings, the Ninth Circuit found a due process violation based in part on its

4

determination that the evidence was improperly admitted under state law. Id. at 66-67. The U.S.

5

Supreme Court first held that the Ninth Circuit had erred in inquiring whether the evidence was

6

properly admitted under state law because ―‗federal habeas corpus relief does not lie for errors of

7

state law.‘‖ Id. at 67. The Supreme Court then explained:

8
9
10

12
For the Northern District of California

United States District Court

11

13
14
15
16
17
18
19
20
21

The evidence of battered child syndrome was relevant to show
intent, and nothing in the Due Process Clause of the Fourteenth
Amendment requires the State to refrain from introducing relevant
evidence simply because the defense chooses not to contest the
point. [¶] Concluding, as we do, that the prior injury evidence was
relevant to an issue in the case, we need not explore further the
apparent assumption of the Court of Appeals that it is a violation of
the due process guaranteed by the Fourteenth Amendment for
evidence that is not relevant to be received in a criminal trial. We
hold that McGuire‘s due process rights were not violated by the
admission of the evidence. See Spencer v. Texas, 385 U.S. 554, 563–
564, 87 S.Ct. 648, 653–654, 17 L.Ed.2d 606 (1967) (―Cases in this
Court have long proceeded on the premise that the Due Process
Clause guarantees the fundamental elements of fairness in a criminal
trial . . . . But it has never been thought that such cases establish this
Court as a rulemaking organ for the promulgation of state rules of
criminal procedure‖).
Estelle v. McGuire, 502 U.S. at 70 (omission in original).
The cited case, Spencer v. Texas, 385 U.S. at 563, held that the admission of evidence of
prior convictions did not violate due process. The Supreme Court explained in Spencer that,
although there may have been other, perhaps better, ways to adjudicate the existence of prior
convictions (e.g., a separate trial on the priors after the trial on the current substantive offense

22

resulted in a guilty verdict), Texas‘ use of prior crimes evidence in a ―one-stage recidivist trial‖

23

did not violate due process. Id. at 563-64. ―In the face of the legitimate state purpose and the

24
25
26
27

long-standing and widespread use that attend the procedure under attack here, we find it
impossible to say that because of the possibility of some collateral prejudice the Texas procedure
is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in
our past cases.‖ Id. at 564.

28

38

1

Estelle v. McGuire also cited to Lisenba v. California, 314 U.S. 219, 228 (1941), in

2

support of the conclusion that the introduction of the battered child syndrome evidence did not so

3

infuse the trial with unfairness as to deny due process of law. See Estelle v. McGuire, 502 U.S. at

4

75. In Lisenba, the Supreme Court rejected a claim that the admission of inflammatory evidence

5

violated the defendant‘s due process rights. The evidence at issue in Lisenba was live rattlesnakes

6

and testimony about them to show they had been used by the defendant to murder his wife. ―We

7

do not sit to review state court action on questions of the propriety of the trial judge‘s action in the

8

admission of evidence. We cannot hold, as petitioner urges, that the introduction and identification

9

of the snakes so infused the trial with unfairness as to deny due process of law. The fact that

cannot, for that reason alone, render its reception a violation of due process.‖ Lisenba, 314 U.S. at

12
For the Northern District of California

evidence admitted as relevant by a court is shocking to the sensibilities of those in the courtroom

11

United States District Court

10

228-29.

13

These three Supreme Court cases declined to hold that the admission of prejudicial or

14

propensity evidence violates the defendant‘s due process rights. No Supreme Court cases since

15

Estelle v. McGuire have undermined the holdings in these three cases. In other words, there is no

16

Supreme Court holding that the admission of prejudicial or propensity evidence violates due

17

process.

18

When the U.S. Supreme Court ―cases give no clear answer to the question presented, let

19

alone one in [the petitioner‘s] favor, ‗it cannot be said that the state court unreasonabl[y] appli[ed]

20

clearly established Federal law.‘ . . . Under the explicit terms of § 2254(d)(1), therefore, relief is

21

unauthorized.‖ Wright v. Van Patten, 552 U.S. 120, 126 (2008) (second and third alterations in

22

original) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), and 28 U.S.C. § 2254(d)(1)).

23

The Supreme Court has established a general principle of ―fundamental fairness,‖ i.e.,

24

evidence that ―is so extremely unfair that its admission violates ‗fundamental conceptions of

25

justice‘‖ may violate due process. Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting

26

United States v. Lovasco, 431 U.S. 783, 790 (1977) (due process was not violated by admission of

27

evidence to identify perpetrator and link him to another perpetrator even though the evidence also

28

was related to crime of which defendant had been acquitted)). Thus, the court may consider
39

1

whether the evidence was ―so extremely unfair that its admission violates ‗fundamental

2

conceptions of justice.‘‖ Id.
In this circuit, the admission of prejudicial evidence may make a trial fundamentally unfair

3
4

and violate due process ―[o]nly if there are no permissible inferences the jury may draw from the

5

evidence.‖ Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). ―Evidence introduced by

6

the prosecution will often raise more than one inference, some permissible, some not; we must

7

rely on the jury to sort them out in light of the court‘s instructions. Only if there are

8

no permissible inferences the jury may draw from the evidence can its admission violate due

9

process. Even then, the evidence must ‗be of such quality as necessarily prevents a fair trial.‘
Only under such circumstances can it be inferred that the jury must have used the evidence for an

11

improper purpose.‖ Jammal, 926 F.2d at 920 (internal citation and footnote omitted).13
Here, Mr. Khek does not show that the admission of the photo meets the very demanding

12
For the Northern District of California

United States District Court

10

13

standard of being so extremely unfair that its admission violates fundamental conceptions of

14

justice. There were permissible inferences that could be drawn from the photo, as the prosecutor

15

had argued. Most importantly, the photo supported the inference that the stabbing was done with

16
17
18
19
20
21

22
23
24
25
26
27
28

13

In Jammal, the police found a gun, $47,000 and drugs in the trunk of Jammal‘s stolen car when
they arrested Willis, who had stolen Jammal‘s car; 18 months later, the police found $135,000 (but
no drugs) in the trunk of Jammal‘s car when they arrested Jammal. At trial, Willis said he had no
idea the drugs and money were in the trunk of Jammal‘s stolen car until police opened it. The
prosecution urged the jury to infer that both the drugs and the $47,000 found in the trunk of
Jammal‘s car when Willis was arrested belonged to Jammal since Jammal later was arrested also
with a large stash of cash in his trunk. Jammal unsuccessfully objected that this evidence
effectively branded him a drug dealer and was therefore inadmissible character evidence. The
Ninth Circuit explained that state law evidence rules were beside the point in a federal habeas
proceeding and any problem in the jury inferring that Jammal had put the $47,000 and drugs in the
car earlier (even if impermissible under state law) was not a constitutional problem because the
inference that Jammal had put both the $47,000 and drugs in the trunk on an earlier occasion was a
―rational inference‖ the jury could draw from the evidence that he was caught with $135,000 in his
trunk. Jammal, 926 F.2d at 920.
Jammal is one of the few cases that gives any guidance as to what might amount to the
introduction of evidence that might amount to fundamental unfairness. The Ninth Circuit
continues to use the Jammal ―permissible inference‖ test in habeas cases governed by the AEDPA.
See, e.g., Noel v. Lewis, 605 F. App‘x 606, 608 (9th Cir. 2015) (admission of gang evidence did
not violate due process); Lundin v. Kernan, 583 F. App‘x 686, 687 (9th Cir. 2014) (citing Jammal
and concluding that admission of graffiti evidence did not violate due process because there were
permissible inferences to be drawn); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008)
(citing Jammal and concluding that evidence of prior bad acts did not violate due process).
40

1

the intent to kill, rather than an intent to only injure the victim. Unlike the testimonial description

2

of the autopsy results, the photo starkly conveyed the brutality of the stabbing. As the prosecutor

3

argued, intent was not a minor or collateral issue in this case, RT 615; withholding the photo from

4

the jury might lead the jury to think it was a minor abdominal wound that just happened to result

5

in death at a later time, and that would give the jury a distorted view of the severity of the

6

stabbing. See RT 614. The prosecutor‘s concern was valid, as confirmed by the defense closing

7

argument that urged, in part, that the stabbing was done in a manner calculated not to kill the

8

victim. Mr. Khek‘s attorney argued in closing: ―And he stabbed him. In the heart? No. In the

9

lower part of his stomach on the right-hand side away from the heart. And he slashed his

he intend to injure him, to hurt him by stabbing him? Or did he have an intention to kill him?‖

12
For the Northern District of California

shoulder. On these facts Kosal Khek guilty of second degree murder. The question for you is did

11

United States District Court

10

RT 2990 (error in source); see also RT 2995 (―He chose a knife. He chose to stab him away from

13

the heart in the lower stomach.‖) Defense counsel also urged in his closing argument that the

14

instant messages could be explained as tough talk by teenagers trying to fit in with their gang

15

peers, see RT 2992; that stabbings are not always fatal, RT 2988; that Mr. Khek ―intended to hurt‖

16

the victim, RT 2994, 2998; that Mr. Khek chose to use a knife instead of a gun because people

17

could survive stabbings, RT 2994; and that Mr. Khek was ―remorseful for the unintended

18

consequences of his desire to hurt and to stab and to injure‖ the victim, RT 2998-99.

19

As the state appellate court explained, the photo was relevant to show ―the nature and

20

brutality of the wounds, which illustrated the People‘s theory that the killing was intentional rather

21

than an assault gone awry and [to illustrate] the pathologist‘s testimony about the severity of the

22

injuries.‖ Cal. Ct. App. Opinion at 6. The jury could draw the inference from the photo that Mr.

23

Khek stabbed the victim with the intent to kill him. Because this inference is permissible, the state

24

appellate court did not unreasonably apply Supreme Court authorities in holding that the

25

admission of the photo did not violate due process. See Jammal, 926 F.2d at 920. See, e.g.,

26

Thornburg v. Mullin, 422 F.3d 1113, 1128, 1129 (10th Cir. 2005) (no due process violation where

27

petitioner challenged the admission of six photographs ―depicting the charred remains of the

28

victims‘ bodies‖; despite the fact that the petitioner did not dispute the manner of death, ―the state
41

provided an accurate account of events‖); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005)

3

(gruesome photos were probative of state‘s theory that petitioner meticulously dissected victim

4

and did not act in a blind rage); Willingham v. Mullin, 296 F.3d 917, 928–29 (10th Cir. 2002)

5

(denying claim that the admission of 22 photos of the murder victim‘s body was so unduly

6

prejudicial as to render his trial fundamentally unfair, where photos were relevant to issue of

7

intent); Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997) (admission of ―admittedly

8

gruesome photos of the decedent‖ did not ―raise[] the specter of fundamental unfairness such as to

9

violate federal due process of law‖); Villafuerte v. Lewis, 75 F.3d 1330, 1343 (9th Cir. 1996) (no

10

due process violation in admission of photos ―depicting blood at the crime scene, the wrapping of

11

the victim‘s head, and the bindings on the victim‖ -- the photos ―were relevant to the charge of

12
For the Northern District of California

still bore the burden to convince the jury that its witnesses, both eyewitnesses and experts,

2

United States District Court

1

dangerous kidnapping,‖ i.e., to prove that defendant ―knowingly restrained the victim, with the

13

intent to kill, injure, rape, or frighten her‖).

14

Mr. Khek calls the evidence speculative. He is wrong. He does not dispute that the photo

15

accurately depicted the condition of the victim‘s body at the crime scene, and the protruding

16

intestines were from the stabbing rather than from any work done on him by emergency or

17

medical personnel. Moreover, contrary to Mr. Khek‘s assertion, the prosecutor‘s arguments at the

18

in limine hearing regarding inferences that the jury could draw from the photo, were not evidence

19

– speculative or otherwise. The prosecutor‘s closing arguments asking the jury to draw inferences

20

from the photo (e.g., that Mr. Khek had seen the intestines protruding from the wound) did not

21

make the photo itself speculative in nature. The trial court instructed the jury that counsel‘s

22

arguments were not evidence, see CT 2551, and the jury is presumed to have followed that

23

instruction. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (―The Court presumes that

24

jurors, conscious of the gravity of their task, attend closely the particular language of the trial

25

court‘s instructions in a criminal case and strive to understand, make sense of, and follow the

26

instructions given them.‖)

27
28

―[E]valuating whether a rule application was unreasonable requires considering the rule‘s
specificity. The more general the rule, the more leeway courts have in reaching outcomes in case42

the extremely general nature of the Supreme Court‘s articulation of a principle of ―fundamental

3

fairness‖ – i.e., evidence that ―is so extremely unfair that its admission violates ‗fundamental

4

conceptions of justice‘‖ may violate due process, see Dowling, 493 U.S. at 352 – the California

5

Court of Appeal‘s rejection of Mr. Khek‘s due process claim was not contrary to or an

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unreasonable application of clearly established federal law as set forth by the Supreme Court. See

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generally Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (denying writ because,

8

although Supreme Court ―has been clear that a writ should be issued when constitutional errors

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have rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of

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

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issuance of the writ.‖ (internal citation omitted)).

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For the Northern District of California

by-case determinations.‖ Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Bearing in mind

2

United States District Court

1

E.

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No Certificate of Appealability
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

14

which ―jurists of reason would find it debatable whether the petition states a valid claim of the

15

denial of a constitutional right and that jurists of reason would find it debatable whether the

16

district court was correct in its procedural ruling‖ as to the first claim. Slack v. McDaniel, 529

17

U.S. 473, 484 (2000). And, as to the second claim, this is not a case in which ―reasonable jurists

18

would find the district court‘s assessment of the constitutional claims debatable or wrong.‖ Id.

19

Accordingly, a certificate of appealability is DENIED.
VI.

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21

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CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED on the merits.
The Clerk shall close the file.

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24

IT IS SO ORDERED.

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26
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Dated: January 22, 2016
______________________________________
EDWARD M. CHEN
United States District Judge
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