Crew v. Martel et al

Filing 52

ORDER. Claims 8,10,11,13,23,33 and 37 are DENIED. Claim 38 is DENIED WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 7/18/2017. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/18/2017)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARK CHRISTOPHER CREW,

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Northern District of California

United States District Court

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Petitioner,

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CAPITAL CASE
ORDER

vs.
RON DAVIS, Warden of San Quentin State
Prison
Respondent.

INTRODUCTION

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Case No.: 12-CV-4259 YGR

Petitioner Mark Christopher Crew, a California capital prisoner currently incarcerated at San
Quentin State Prison, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On
December 6, 2013, through his appointed counsel, Petitioner filed a second amended petition with

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forty-seven fully exhausted claims. Respondent Ron Davis filed an answer on October 3, 2014 and
Petitioner replied on May 29, 2015.
Due to the size of the petition, the parties agreed to proceed to a merits resolution on twentyfive record-based claims in three rounds of no more than nine claims. This Order decides the first

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round of record-based claims. Petitioner filed his first opening brief, addressing claims 8, 10-11,
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13, 23, 33, 37, and 38 on April 4, 2016. Respondent filed an answer on May 4, and Petitioner filed

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a reply on May 19, 2016. The Court determines that these claims are suitable for decision without

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oral argument. Having reviewed the parties’ papers and the record, and having carefully considered

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the relevant legal authorities, the Court DENIES claims 8, 10-11, 13, 23, 33, and 37, and DENIES

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WITHOUT PREJUDICE claim 38.

STATEMENT

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1. Statement of Facts

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The following facts are taken from the October 29, 2003 opinion of the California Supreme

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Court on direct appeal from the jury verdict. This summary is presumed correct. Hernandez v.

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Small, 282 F.3d 1132, 1135 n.1 (9th Cir.2002); 28 U.S.C. § 2254(e)(1).
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1. Prosecution’s case
Defendant met Nancy Jo Wilhelmi Andrade (Nancy), a nurse, at the Saddle
Rack bar in San Jose in 1981, shortly after Nancy’s divorce. Nancy owned a
purebred horse and a Ford pickup truck. Nancy and defendant were romantically
involved until November or December of 1981, after which they did not see each
other until April of 1982, when they resumed the relationship.
In January 1982, when Nancy and defendant were not romantically involved,
Nancy and her friend Darlene Bryant planned a trip across the United States for the
summer, and that spring Nancy bought a yellow Corvette for the trip. In May 1982,
Richard Elander, one of defendant’s best friends, began work at a ranch in Utah run
by Richard Glade. Before Elander left for Utah, defendant had talked to him about
killing Nancy during a trip across the country. While in Utah, Elander asked Glade
about carrying a body into the wilderness of the Utah mountains. Disturbed by the
conversation, Glade fired Elander.
Defendant asked Nancy to move to Greer, South Carolina, where defendant’s
mother and stepfather lived. When Nancy replied she did not want to move so far
away unless married, defendant agreed to marry her. The wedding took place on
June 4, 1982.
The marriage soon floundered. Nancy was living with Darlene at the latter’s
home, but defendant was rarely there. Nancy twice saw defendant with some women
at the Saddle Rack bar. She told several friends she was thinking of an annulment of
the marriage.
Defendant had been romantically involved with Lisa Moody, to whom he
proposed marriage in June 1982, the same month he married Nancy. Defendant and
Moody did not set a date for the wedding.
In July 1982, defendant and his friend Richard Elander moved to Greer,
South Carolina, where they stayed with defendant’s parents and started a truck
service business. That same month, Nancy and her friend Darlene took their planned
vacation trip across the country. They stopped in Greer, South Carolina, and Nancy
spent the night with defendant.
After Nancy’s visit to South Carolina, defendant and his stepfather, Bergin
Mosteller, decided to return to California to kill Nancy. Defendant discussed with
Elander different ways of killing her, including suffocation, hitting her with a large
wrench, and “bleeding her in the shower so she wouldn’t make any mess.” They
also discussed leaving her body in the Utah wilderness, where they could bury her or
“hang her in a tree, let the bears eat her.”

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After returning to California in early August 1982, Nancy often spoke on the
telephone with defendant. She decided to move to South Carolina in an effort to
make the marriage work, and she began to make arrangements to do so. She gave
custody of her two children from a prior marriage to their father and closed out her
bank account, obtaining $10,500 in cash and a money order for $2,500. When
Deborah Nordman, one of Nancy’s friends, remarked that Nancy might be left in the
desert during the trip with defendant to South Carolina, Nancy replied, “If you don’t
hear from me in two weeks, send the police.”
On August 21, 1982, defendant and his stepfather came to Darlene’s house,
where Nancy was living, in a station wagon pulling a horse trailer. They loaded
Nancy’s belongings into the trailer and picked up Nancy’s horse from a stable in
Gilroy. The plan was for Mosteller to drive the station wagon to Texas, where he
would leave the horse with relatives. Nancy and defendant would follow in Nancy’s
Corvette and truck. They would leave the truck in Texas, where defendant’s friend,
Richard Elander, would retrieve the truck, the horse, and Nancy’s belongings and
take them all to South Carolina. Nancy and defendant would then leave Texas in
Nancy’s Corvette to go on a two-week honeymoon. Mosteller, however, never went
to Texas. He boarded the horse in a stable in San Jose, drove to Nevada, and finally
flew to South Carolina.
On August 23, Nancy and defendant went to Nancy’s parents’ home in Santa
Cruz, California, where they picked up Nancy’s dog and some of her belongings,
including a microwave, stereo components still in the original cartons, and personal
documents. That same day, Nancy and defendant ostensibly left for South Carolina.
That same night, however, defendant checked into a Motel 6 in Fremont,
California, where he registered to stay for two nights. The next day, he arrived at the
home of Lisa Moody, the woman who had accepted defendant’s marriage proposal
shortly after his marriage to Nancy. Over the next two days, defendant gave Lisa a
stereo and a microwave, took her to see a horse in a San Jose stable, and arranged for
her to convert $5,000 in cash into a cashier’s check payable to Bergin Mosteller,
defendant’s stepfather.
On August 28, 1982, defendant and Lisa left for South Carolina in a pickup
truck with a horse in a trailer. They stopped in Texas, where they stayed at
defendant’s grandmother’s house for a couple of days. While there, defendant
became upset and agitated after receiving a phone call. After defendant and Lisa
arrived in Greer, South Carolina, defendant opened a bank account in which he
deposited Nancy’s $2,500 money order. Elander and Mosteller sold Nancy’s
clothing and possessions at a flea market for about $500, burned her documents in a
backyard, and sold the horse trailer and Nancy’s horse.
Defendant and Lisa returned to San Jose in mid-September. Defendant then
sold Nancy’s truck for $4,200, giving the purchaser a certificate of title with Nancy’s
forged signature. On October 13, 1982, defendant told Lisa that the phone call he
received in Texas while they were at his grandmother’s house was about a woman
who loved him and was telling people in South Carolina she was going to marry him.
According to defendant, the woman went to the head of the Mafia in Arizona to
complain about defendant, but the Mafia killed her instead. Defendant told Lisa that
he was forced to dispose of the body to avoid being blamed for the woman’s death,
and that he buried it in his friend Bruce Gant’s backyard. The phone call defendant
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had received in Texas was actually from Gant who told him that the “body was
beginning to stink.” That same day, defendant returned to South Carolina in Nancy’s
Corvette.
Richard Elander testified under a grant of immunity. He said that on the day
defendant and Lisa arrived in Greer, South Carolina, defendant told him the details
of Nancy’s killing. According to Elander, after defendant and Nancy left San Jose,
California, they stopped and walked up a hillside into the woods. While Nancy and
defendant were sitting on the hillside talking, defendant shot her in the back of the
head and rolled the body down a ravine where he covered it with blankets.
Defendant then drove one of the cars to Bruce Gant’s house in Campbell, California.
Defendant and Gant returned to the scene and retrieved the other vehicle.
The next evening, defendant and Gant got drunk and returned to the site
where defendant had shot Nancy. When defendant walked down to her body, it had
moved. Defendant “freaked out,” ran back to the truck, and told Gant. Gant went
down the ravine where he tried to strangle Nancy and break her neck. He eventually
cut off Nancy’s head. Defendant told Elander that they put Nancy’s body in a 55–
gallon drum filled with cement and buried it in Gant’s backyard. They put her head
in a five-gallon bucket filled with cement and threw it off the Dumbarton Bridge
between Alameda and San Mateo Counties, California.
A few days after defendant returned to South Carolina, Elander testified, he
sold Nancy’s Corvette to Marion Mitchell. When Mitchell repeatedly asked for title
to the car, Elander told him that defendant had killed his wife by shooting her,
cutting off her head, putting the body in a barrel filled with concrete, and burying it
in a backyard. Elander then forged defendant’s signature on a bill of sale and gave it
to Mitchell.
In January 1983, defendant made arrangements to stay in Connecticut with
Jeanne Meskell, with whom he previously had a relationship. While there, defendant
told Meskell that he had killed a girl, that she was in two pieces in two drums filled
with cement, and that one drum was in the San Francisco Bay and one was in a
backyard. In March 1983, the San Jose police searched Bruce Gant’s house, where
they recovered a Tiffany lamp identical to one of Nancy’s. A search of Gant’s yard
with steel probes in March 1983 and again in 1984 did not reveal anything. Nancy’s
body was never found.
2. Defense case
The defense at the guilt phase consisted primarily of challenges to the
credibility of the prosecution witnesses. The defense introduced evidence that
Elander was an untrustworthy drug addict who had engaged in “lying contests” with
defendant and that a woman with blonde hair and a dog had come to the San Jose
stable with defendant. Because Nancy had blonde hair and owned a dog, the
evidence was introduced to try to show that Nancy was aware that Mosteller had
taken her horse to the San Jose stable. The defense also introduced evidence to raise
doubts over the burial of Nancy’s body in Gant’s backyard in Campbell, California.
San Jose Police Officer Demowski testified that officers searched Gant’s backyard
three times without finding Nancy’s body. District attorney investigator Ronald
McCurdy testified that he could not find any records tying Gant to the crime or the
disposal of the body.

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B. Penalty Phase
1. Prosecution case
The prosecution did not introduce any additional evidence in its case in chief
at the penalty phase.
2. Defense case
The parties stipulated defendant had no prior felony convictions.
Defendant’s father, William Crew, testified that defendant was born in Fort
Worth, Texas in 1954. The family moved to Novato, California, in 1957 and to
Petaluma, California, in 1966. During this time, defendant did well in school and
was involved in sports. Defendant was never physically abused as a child.
Defendant’s parents began to experience marital difficulties. His mother
became noncommunicative and withdrawn. In 1969, defendant’s parents divorced;
defendant and his father moved to San Jose. Defendant continued to do well in
school.
In 1970, when defendant was 15 years old, defendant’s father married
Barbara Martin. Defendant did not get along with his stepmother and one of her
three children. When defendant’s father and stepmother bought a home, his
stepmother’s children were each given a bedroom while defendant had to sleep on a
couch. Defendant’s grades in school began to decline. When he was 17 years old,
defendant quit high school and joined the Army.
Defendant did well in the Army. He became a squad leader in charge of 12
to 14 men, rose to the rank of sergeant, and became the driver for Colonel Donald
Pearce, the base commander. While he was in the Army, defendant married Patty,
his high school girlfriend, and they had one daughter. When a friend and fellowenlistee, James Gilbert, was getting in trouble because of his drinking, defendant
showed concern and compassion for him. Before his honorable discharge from the
Army in 1976, defendant and Patty divorced.
Thereafter, defendant married Debra Lunde and they moved to Minnesota.
When his marriage to Debra ended in 1981, defendant moved to Texas, where he
lived with and took care of his grandmother, Irene Watson, who was suffering from
cataracts. In 1978, defendant returned to California, where he worked as a truck
driver and attended junior college. He then became involved with Emily Bates,
whom he treated well.
Part of the testimony of two witnesses, Richard Elander and Kathy Harper,
actually given during their guilt phase testimony, was referenced at the penalty phase
as well as mitigating evidence about defendant’s background. That testimony
consisted of Elander’s testimony that defendant protected and cared for him when
Elander was a young man strung out on drugs. And Kathy Harper testified that when
she was financially destitute, defendant moved in with her and provided financial
support for her and her son.
Emily Bates testified at the penalty phase that she had a relationship with
defendant in 1977 and again in 1980. Defendant treated her well.
Defendant’s father, William Crew, asked the jury to spare his son’s life
because as an intelligent and capable person he could lead a productive life in prison
by doing assigned tasks.
Defendant’s grandmother, Irene Watson, testified that defendant took care of
her for two or three months in 1981 when she was in ill health.
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James Gilbert, defendant’s friend whom defendant had helped while they
were in the Army, described defendant as a caring and generous person.
Colonel Pearce, the base commander for whom defendant was the assigned
driver while in the Army, said that defendant was intelligent, dependable, full of
common sense, and mature. He described defendant as a top soldier. In his view,
defendant should not be put to death because he could lead a productive life in prison
by, for instance, teaching auto repair.
The defense also presented evidence from three Santa Clara County Sheriff’s
Deputies (Ron Yount, Toby Council, and Donald Varnado) who had daily contact
with defendant during the four years he spent in the Santa Clara jail awaiting trial.
According to them, defendant interacted well with prisoners and staff. Deputy
Varnado mentioned that defendant prevented trouble by telling him about a plan by
male inmates to overpower a female officer. All three deputies were of the view that
if sentenced to life in prison, defendant could lead a productive life by helping other
inmates and doing assigned tasks.
Jerry Enomoto, the former head of the California Department of Corrections
and an expert on prisons, expressed the view that defendant would not be a high
security risk in prison. His opinion was not changed by defendant’s alleged
participation in a 1985 escape attempt, because it involved an unsupervised outdoor
area and was based on informant statements; because the district attorney concluded
there was insufficient evidence to prosecute defendant; and because the plan did not
involve weapons, violence, or the taking of hostages.
3. Prosecution rebuttal
Clinton Williams, an informant, testified that in 1985, while in the county jail
with defendant, the latter discussed an escape plan, which involved cutting a hole in
the surrounding fence. Defendant said he wanted to escape because he thought he
would be found guilty of the first degree murder of a woman whose body was buried
in an orchard outside California.
People v. Crew, 31 Cal.4th 822, 828-34 (2003).

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Petitioner was convicted by a jury of one count of murder and the jury found true a
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special circumstance allegation that the murder was carried out for financial gain. CT 2272,
AG 2353. The jury sentenced Petitioner to death. CT 2300, AG 2394.
2. Procedural Background
Petitioner filed a motion for modification of his sentence in the trial court. RT 5158-82, AG

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10861-85. The trial court granted the motion, citing, “‘1) a lack of any prior criminal activity
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involving violence or the threat to use force or violence; [¶] 2) the absence of any prior felony

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conviction; [¶] 3) the defendant’s background; [¶] 4) the defendant’s interpersonal relationships; [¶]

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5) the defendant’s custodial conduct; and [¶] 6) the testimony of Jerry Enomoto, an expert witness

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regarding the Department of Corrections.’” People v. Crew (“Crew II”), 1 Cal.App.4th 1591, 1598

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(6th Dist. 1991). The court sentenced Petitioner to life without the possibility of parole. Id. It also

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imposed the aggravated term on Petitioner’s grand theft conviction. RT 5182, AG 10885.

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The state appealed the trial court’s ruling, arguing that the trial judge improperly compared
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the facts of Petitioner’s case with those of other capital cases over which he had presided. Crew II,

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1 Cal.App.4th at 1595. The California Court of Appeal found that the trial court’s “substantial

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reliance on the facts of those others cases in ruling on the section 190.4(e) motion was unauthorized

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and therefore erroneous.” Id. at 1604. Accordingly, it vacated the judgment and remanded the case

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to the trial court for “the limited purpose of redetermining the automatic modification motion

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pursuant to section 190.4(e).” Id. at 1609. The California Supreme Court denied Petitioner’s

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petition for review on March 26, 1992. Id. at 1610. Following remand, the trial court reinstated the

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death sentence.

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On August 13, 2012, Petitioner initiated the present habeas corpus action. ECF Doc. No. 1.

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Counsel for Petitioner were appointed on October 29, 2012. ECF Doc. No. 7. Through his

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appointed counsel, petitioner filed his Amended Petition for Writ of Habeas Corpus on December 6,

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2013, asserting forty-seven claims. ECF Doc. No. 20. Respondent filed his Answer on October 3,

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2014. ECF Doc. No. 32. In it, Respondent asserted affirmative defenses based on procedural

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default, cognizability, and summary dismissal. Petitioner filed his Traverse on May 29, 2015, in
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which he addressed Respondent’s affirmative defenses. ECF Doc. No. 38.
The Court addressed Respondent’s affirmative responses on November 30, 2015. That
Order found claims Five, Eight (specifically the subclaim regarding the prosecutor’s commission of
misconduct during his opening statement), Eleven D, Eleven F, Thirteen, Thirty and Thirty-One

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procedurally defaulted, but directed Petitioner to brief the merits of them anyway; dismissed claims
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Three, Six, and Forty-Five as not cognizable on federal habeas; and, in the alternative, denied
claims Three and Six, as well as related claims Four and Seven. ECF Doc. No. 43.
Subsequently, Petitioner identified twenty-five record-based claims that could proceed to
briefing on the merits without a request for an evidentiary hearing. ECF Doc. No. 47. Petitioner

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was directed to brief those claims in three rounds. ECF Doc. No. 48. Petitioner filed his first brief,
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covering eight claims, on April 4, 2016. ECF Doc. No. 49. Respondent filed an answering brief on

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May 4, 2016, and Petitioner filed a reply on May 19, 2016. ECF Doc. Nos. 50 and 51. Those eight

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claims are now ready for disposition.

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STANDARD OF REVIEW

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A district court may not grant a petition challenging a state conviction or sentence on the

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basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication

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of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable

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

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

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong

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applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529

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U.S. 362, 407–09 (2000), while the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under the first
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clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by

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[the Supreme] Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.

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A state court decision is an “unreasonable application of” Supreme Court authority, falling under

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the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the
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Supreme Court’s decisions but “unreasonably applies that principle to the facts of the prisoner’s

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case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be

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“objectively unreasonable” to support granting the writ. Id. at 409.
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A state court’s determination that a claim lacks merit precludes federal habeas relief so long

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as “fairminded jurists could disagree” on the correctness of the state court’s decision. Harrington v.

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Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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“[E]valuating whether a rule application [i]s unreasonable requires considering the rule’s

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specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-

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by-case determinations.” Id. “As a condition for obtaining habeas corpus [relief] from a federal

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court, a state prisoner must show that the state court’s ruling on the claim being presented in federal

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court was so lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility for fairminded disagreement.” Id. at 102.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will

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not be overturned on factual grounds unless objectively unreasonable in light of the evidence

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presented in the state-court proceeding.” Miller-El I, 537 U.S. at 340. Review under § 2254(d)(1)

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is limited to the record that was before the state court that adjudicated the claim on the merits.

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Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
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DISCUSSION

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1.

Claim 8: Prosecutorial Misconduct at Guilt Phase of Trial
Petitioner contends that the prosecutor committed two acts of prosecutorial misconduct

during the guilt phase of his trial: (1) the prosecutor presented inadmissible evidence about victim

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Nancy Jo Crew’s fear of Petitioner during his opening argument; and (2) the prosecutor elicited
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inadmissible testimony regarding the victim’s fear of Petitioner from witness Debbie Nordman. Br.

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on Merits at 7, 8. Petitioner asserts that these two instances of misconduct prejudiced him because

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it would likely convince the jury that Petitioner did kill the victim. Id.

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The California Supreme Court denied the first subclaim as procedurally barred because

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defense counsel failed to object or request an admonition. Crew, 31 Cal.4th at 839. It also found
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that the claim as a whole lacked merit because Petitioner had failed to show prejudice based on the

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evidence subsequently adduced against him and because the trial court issued cautionary instruction

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to the jury that limited the scope for which such evidence could be considered. Id. Respondent

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argues that the denial of both subclaims was reasonable. Ans. at 5-7.

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A.

Legal Standard

Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard

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of review is the narrow one of due process and not the broad exercise of supervisory power.

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Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant’s due process rights are violated

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when a prosecutor’s misconduct renders a trial “fundamentally unfair.” Id.; Smith v. Phillips, 455

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U.S. 209, 219 (1982) (“the touchstone of due process analysis in cases of alleged prosecutorial

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misconduct is the fairness of the trial, not the culpability of the prosecutor”). Under Darden, the

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first issue is whether the prosecutor’s remarks were improper; if so, the next question is whether

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such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.

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2005); see also Deck v. Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is
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the clearly established federal law regarding a prosecutor’s improper comments for AEDPA review

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purposes). A prosecutorial misconduct claim is decided “‘on the merits, examining the entire

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proceedings to determine whether the prosecutor’s remarks so infected the trial with unfairness as to

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make the resulting conviction a denial of due process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th

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Cir. 1995); see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish society
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for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a fair
trial.”).
The first factor in determining whether misconduct amounted to a violation of due process is
whether the trial court issued a curative instruction. When a curative instruction is issued, a court

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presumes that the jury has disregarded inadmissible evidence and that no due process violation
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occurred. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); Darden, 477 U.S. at 182 (the Court

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condemned egregious, inflammatory comments by the prosecutor but held that the trial was fair

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since curative actions were taken by the trial judge); Trillo, 769 F.3d at 1000 (“We presume that

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juries listen to and follow curative instructions from judges.”). This presumption may be overcome

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if there is an “overwhelming probability” that the jury would be unable to disregard evidence and a

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strong likelihood that the effect of the misconduct would be “devastating” to the defendant. See

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Greer, 483 U.S. at 766 n.8; Tan, 413 F.3d at 1115-16 (finding trial fair where jury received

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instructions five different times to consider only the evidence presented, and not its sympathy for

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the victim’s life story).

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Other factors which a court may take into account in determining whether misconduct rises

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to a level of due process violation are: (1) the weight of evidence of guilt, compare United States v.

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Young, 470 U.S. 1, 19 (1985) (finding “overwhelming” evidence of guilt) with United States v.

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Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (in light of prior hung jury and lack of curative

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instruction, new trial required after prosecutor’s reference to defendant’s courtroom demeanor); (2)
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whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d

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805, 809 (9th Cir. 1987); (3) whether the misconduct relates to a critical part of the case, see Giglio

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v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing potential bias of

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witness especially significant because governments case rested on credibility of that witness); and

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(4) whether a prosecutor’s comment misstates or manipulates the evidence, see Darden, 477 U.S. at
182.
2. The California Supreme Court Denials Were Reasonable
A.

Subclaim One: Prosecutorial Misconduct in the Opening Statement

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Petitioner has failed to show that the California Supreme Court’s denial on the merits was an
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unreasonable application of clearly established Federal law or of the facts, as required by 28 U.S.C.

8

§ 2254(d)(1), (d)(2). Specifically, Petitioner has failed to show that “‘fairminded jurists could [not]

9

disagree’ on the correctness of the state court’s decision,” and that all would conclude the state

10

court decision was unreasonable. Richter, 562 U.S. at 101.

11

Northern District of California

United States District Court

12

The trial court entertained lengthy argument during motions in limine regarding exclusion of

13

any hearsay evidence that would indicate that the victim expressed a fear of Petitioner, specifically

14

in the context of statements the victim made to her friend, Jeanette St. Jean. RT 3447-57, AG 9160-

15

70. The trial court ruled to exclude that particular evidence. RT 3457-58, AG 9170-71. The court

16

then heard argument on the admissibility of the victim’s statement to Debbie Nordman that if Ms.

17
18

Nordman did not hear from the victim within two weeks following her departure from California,

19

that Ms. Nordman should call the police. RT 3459-66, AG 9172-79. The court found that the

20

probative value of showing the victim’s intent to have people keep track of her following her

21

commencement of the trip to South Carolina with Petitioner outweighed the prejudicial effect of the

22

statement and allowed its admission. RT 3466, AG 9179. Defense counsel then confirmed with the
23
24
25
26
27

court that the ruling regarding the statement of fear was still in effect. Id.
During his opening statement, the prosecutor said, “They [the victim’s family] talked to
friends of Nancy. And one of them in particular, Nancy had told her that she was very apprehensive
about the move. Not only the move, but apprehensive of the defendant, fearful of the defendant.

28

She had told one of her friends, ‘If you don’t hear from me in two weeks, call the police.’” RT
12

1

3506, AG 9219. Defense counsel did not object, though later he advised the trial court during a

2

bench conference that such evidence of fear had been excluded and wanted to ensure that it would

3

not come out again. RT 3514-15, AG 9227-28. Defense counsel noted that the improper argument

4

might have been “inadvertent” and was “sufficient to interrupt the statement.” Id. The prosecutor

5

indicated that he thought he had said that the victim was in fear of the defendant, not that she had
6
7
8
9
10

said she was in fear of the defendant, and he had not intended for the argument to sound like the
latter. Id. No admonition was requested and opening statements resumed.
The prosecutor’s statement that the victim had told a friend she was fearful of Petitioner was
improper because it abridged the trial court’s ruling that such evidence was inadmissible.

11

Northern District of California

United States District Court

12

“Improper argument does not, per se, violate a defendant’s constitutional rights.” Fields v.

13

Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002) (quoting Thompson v. Borg, 74 F.3d 1571, 1576

14

(9th Cir.1996)). The relevant question is whether the prosecutor’s improper statement rendered

15

Petitioner’s trial “fundamentally unfair.” Darden, 477 U.S. at 181.

16

The trial court issued two relevant instructions that obviated the damage to Petitioner by the

17
18

prosecutor’s improper statement. First, it instructed the jury at the outset of opening statements that

19

the attorneys’ arguments reflected merely expectations about what the evidence would show and

20

were not evidence in and of themselves. RT 3487-88, AG 9200-01. Second, in connection with the

21

exchange that is the subject of Subclaim Two, below, the trial court issued an instruction

22

admonishing the jury from considering any testimony or evidence that the victim “may have
23
24

expressed either fear or apprehension” of Petitioner as evidence that Mark Crew either killed the

25

victim or that she was dead. RT 3723, AG 9442. The court advised that such evidence could only

26

be considered “for the limited purpose of establishing whether or not it was likely that [the victim]

27

would have travelled to South Carolina with [Petitioner].” RT 3723-24, AG 9442-43. A jury is

28

presumed to “listen to and follow curative instructions.” Trillo, 769 F.3d at 1000
13

1

The evidence of Petitioner’s guilt, despite the absence of the victim’s body, was substantial.

2

Accomplice Richard Elander testified against Petitioner. He stated that Petitioner expressed a

3

desire to kill Nancy prior to her disappearance and developed a plan to do so with his stepfather,

4

Bergin Mosteller. Additionally, Elander detailed the ways in which Petitioner subsequently

5

attempted to evade detection of the crime.
6
7

Following the victim’s disappearance, Petitioner sold the victim’s car to a business contact

8

and friend of Mr. Elander’s. The purchaser of the car testified that after asking Mr. Elander several

9

times for a signed title, Mr. Elander explained that Petitioner would not be returning to South

10

Carolina because he had murdered his wife and described Petitioner’s return to the scene where he

11

Northern District of California

United States District Court

12

had left the victim and the subsequent decapitation and disposal of the victim’s body. Those details

13

were consistent with the testimony of Jeanne Meskell, a friend of Petitioner’s who testified that

14

Petitioner stayed with her in January 1983 and confessed to having murdered someone, severing the

15

victim’s head, and putting the body in two separate barrels filled with concrete, then dumping one

16

of them off a bridge and burying the other in a backyard. RT 3869-70, AG 9589-90.

17
18

The victim’s assets were sold or otherwise divided amongst the participants. Petitioner tried

19

to transfer an Oldsmobile into the victim’s name following her disappearance but was unable to do

20

so because the victim was unavailable to sign the paperwork. RT 3899, AG 9619. He also tried to

21

sell her Corvette and horse trailer through auction and was unable to do so because he had not

22

obtained her signature. RT 3901, AG 9621; RT 3903, AG 9623.
23
24

Petitioner proposed to a woman, Lisa Moody, the same month he married the victim and

25

took Ms. Moody on the trip that should have been his honeymoon with his wife. A former neighbor

26

of Petitioner’s testified that Petitioner primarily had discussed taking Lisa Moody on the trip. RT

27

3825, AG 9545. While Petitioner had mentioned the possibility of taking the victim, he also said at

28

14

1
2

one point that if he did take her, he might stop halfway and kick her out into the desert. RT 382526, AG 9545-46.

3
4

Petitioner’s brother testified that a few months before the victim’s disappearance, Petitioner
said he wanted to kill someone just to see if he could get away with it. RT 4359, AG 10093. Kathy

5

Harper, a woman with whom Petitioner became romantically involved in South Carolina, testified
6
7
8
9
10

that she overheard Petitioner and Mr. Elander discussing a blue, bloody blanket. RT 3892, AG
9612.
Based on the totality of the evidence presented at trial and the curative instructions from the
trial court, Petitioner has failed to show that the California Supreme Court’s denial of this subclaim

11

Northern District of California

United States District Court

12

was unreasonable. Accordingly, this subclaim is DENIED.

13

B.

14

Similarly, Petitioner has failed to show that the California Supreme Court’s denial of this

15
16

Subclaim Two: Prosecutorial Misconduct in Examination of Debbie Nordman

claim was unreasonable under 28 U.S.C. § 2254(d)(1) or (d)(2).
As noted, during motions in limine, the trial court precluded the admission of hearsay

17
18

evidence that the victim had told her friends she feared the Petitioner. The trial court, however, did

19

permit the prosecutor to ask the victim’s close friend, Debbie Nordman, about the victim’s

20

statement that if Ms. Nordman had not heard from the victim within two weeks of her departure that

21

Ms. Nordman should call the police.

22

While questioning Ms. Nordman, the prosecutor asked if she recalled the last conversation
23
24

she had with the victim about not going to South Carolina. RT 3587-88, AG 9301-02. Ms.

25

Nordman replied in the affirmative and the prosecutor then asked, “What did you tell her?” RT

26

3588, AG 9302. Ms. Nordman responded, “Well, she expressed some concern and some fear, and

27

basically she said to me, ‘If you don’t hear from me in two weeks, send the police.’” Id.

28

15

Defense counsel objected (id.) and later asked to approach the bench (RT 3594, AG 9308).

1
2

During the bench conference, the prosecutor explained that the response was non-responsive to his

3

question and that the witness had been instructed not to testify as to any fear of Petitioner the victim

4

had expressed to her. Id. The court allowed the defense to craft the instruction detailed in Subclaim

5

One, above, and delivered it.
6

The California Supreme Court determination that the prosecutor did not commit misconduct

7
8

because the prosecutor’s question did not attempt to elicit the prohibited fear evidence was

9

reasonable. The prosecutor clearly asked Ms. Nordman what she had said to the victim, not what

10

the victim had said to her. The defense was allowed a curative instruction of its choice. And, as

11

Northern District of California

United States District Court

12

noted, the weight of the evidence against Petitioner was substantial. Because Petitioner is unable to

13

show that the California Supreme Court denial of this subclaim was unreasonable, it is DENIED.

14

2.

15
16

Claim 10: Improper Admission of Hearsay Statement from the Victim
Petitioner argues that the trial court’s admission of Ms. Nordman’s statement that the victim

advised Ms. Nordman to call the police if she had not heard from the victim within two weeks of

17
18

her departure for South Carolina, discussed in Claim 8, above, violated Petitioner’s Due Process

19

rights because it rendered Petitioner’s trial fundamentally unfair. Br. on Merits at 13. As with

20

Claim 8, Petitioner argues that the admission of this evidence allowed the jury to conclude that the

21

victim was killed by Petitioner and had not, in fact, disappeared on her own. Id.

22

The California Supreme Court denied this claim, finding that the evidence was admissible
23
24

under Cal. Evid. Code § 1250, which provides a hearsay exception for the declarant’s then existing

25

state of mind. Crew, 31 Cal.4th at 840. The state court held that the evidence was probative of the

26

victim’s state of mind in deciding to leave with Petitioner and whether her disappearance was of her

27

own volition. Id.

28

16

1

Respondent argues that the California Supreme Court’s denial was reasonable because it

2

was consistent with California evidentiary law and did not render Petitioner’s trial fundamentally

3

unfair. Ans. at 8-10.

4

A.

Legal Standard

5

The admission of evidence is not subject to federal habeas review unless a specific
6
7

constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the

8

fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th

9

Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). The

10

Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial

11

Northern District of California

United States District Court

12

evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v.

13

Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court’s admission of irrelevant

14

pornographic materials was “fundamentally unfair” under Ninth Circuit precedent but not contrary

15

to, or an unreasonable application of, clearly established Supreme Court precedent under

16

§ 2254(d)); see, e,g., Zapien v. Martel, 805 F.3d 862, 869 (9th Cir. 2015) (because there is no

17
18
19
20
21

Supreme Court case establishing the fundamental unfairness of admitting multiple hearsay
testimony, Holley bars any such claim on federal habeas review).
While adherence to state evidentiary rules suggests that the trial was conducted in a
procedurally fair manner, it is certainly possible to have a fair trial even when state standards are

22

violated; conversely, state procedural and evidentiary rules may countenance processes that do not
23
24

comport with fundamental fairness. See Henry, 197 F.3d at 1031 (citing Perry v. Rushen, 713 F.2d

25

1447, 1453 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984)). The due process inquiry in federal

26

habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered

27

the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784

28

F.2d at 990. But note that only if there are no permissible inferences that the jury may draw from
17

1
2

the evidence can its admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 918, 920
(9th Cir. 1991).

3

B.

4

The California Supreme Court Denial Was Reasonable

The California Supreme Court determined that admission of the evidence was correct as a

5

matter of state law. This Court is bound by that determination. See Bradshaw v. Richey, 546 U.S.
6
7
8

74, 76 (2005) (a state court’s interpretation of state law, including one announced on direct appeal
of the challenged conviction, binds a federal court on habeas review).

9
10

Moreover, Petitioner has failed to show that the admission of the statement violated his
rights to due process. As noted by the California Supreme Court, there was more than one

11

Northern District of California

United States District Court

12

permissible inference which could be drawn from the statement. See Jammal, 926 F.2d at 920.

13

Additionally, as discussed in conjunction with Claim 8, above, the trial court issued a detailed

14

limiting instruction advising the jurors of the proper considerations of the statement. Thus,

15

Petitioner has failed to show that the California Supreme Court denial of this claim was

16

unreasonable pursuant to either 28 U.S.C. 2254 §§ (d)(1) or (d)(2). Accordingly, this claim is

17
18
19

DENIED.
3.

20
21

Claim 11: Introduction of Irrelevant, Inflammatory, and Unreliable Evidence
In this claim, Petitioner challenges the admission of six different items of evidence that he

asserts were irrelevant, inflammatory, and/or unreliable as violative of his constitutional rights. Br.

22

on Merits at 14-19. Subclaims D and F were found to be procedurally defaulted in the Court’s
23
24
25

November 30, 2015 Order. ECF Doc. No. 43. However, as with Claim 8, Petitioner was instructed
to brief the merits of the two defaulted subclaims.

26
27

The California Supreme Court denied all of these subclaims in its reasoned decision on
appeal. Crew, 1 Cal.4th at 841-44. Respondent argues that these denials were reasonable. Ans. at

28

10-16.
18

A.

1

Petitioner argues that the admission of hearsay evidence showing that his stepfather, Bergin

2
3
4

Subclaim A: Admission of Bergin Mosteller’s False Statements

Mosteller, made false reports to the police and his insurance agent in connection with a stolen car
claim violated Petitioner’s right to due process. The evidence, Petitioner asserts, left the jury to

5

speculate about Petitioner’s possible involvement in Mr. Mosteller’s “illegal schemes,” which had
6
7

nothing to do with the crimes for which Petitioner had been charged. Br. on Merits at 15.

8

Petitioner also states that the prosecution knew the true reason for Mr. Mosteller’s lies, primarily

9

that he was afraid to tell his wife that a prostitute had stolen his car, and that “once Mr. Mosteller’s

10

true motivation is known, any possible relevance disappears.” Id.

11

The California Supreme Court denied this subclaim finding that the evidence was not

Northern District of California

United States District Court

12
13

hearsay because it was not admitted for the purposes of showing that Mosteller was the victim of a

14

robbery and that the evidence was relevant to proving that Mosteller had attempted to establish an

15

alibi because he knew that Petitioner intended to kill the victim. Crew, 31 Cal.4th at 841. The court

16

determined that the evidence was not unduly prejudicial because it would not “arouse an emotional

17
18

bias” against Petitioner. Id.
Respondent argues that this decision was reasonable. Ans. at 10-11. He notes that no party

19
20

was required to accept Mr. Mosteller’s rationale for the untrue reports he made. Id. at 10.

21

Petitioner has failed to show that the California Supreme Court’s denial of this subclaim was

22

unreasonable. There was a permissible inference the jury could draw from the evidence, namely
23
24

that Mr. Mosteller was aware of Petitioner’s intent to kill the victim and Mr. Mosteller was

25

attempting to establish an alibi for himself. See Jammal, 926 F.2d at 920. Thus, this subclaim is

26

DENIED.

27

//

28

//
19

B.

1

In this subclaim, Petitioner challenges the admission of a hearsay statement by co-defendant

2
3
4

Subclaim B: Bruce Gant’s Statement to the Victim’s Father

Bruce Gant to the victim’s father, Jake Wilhelmi, that Mr. Wilhelmi should stop looking for his
daughter because “[a]ll the men and equipment of the government can’t get within 300 feet of her.”

5

Br. on Merits at 15-17. Petitioner asserts that the admission of the evidence violated his rights
6
7

under the Confrontation Clause of the Sixth Amendment. Id. at 16. Petitioner argues that the

8

California Supreme Court’s silence on the Confrontation Clause subclaim and failure to delineate

9

which harmless error standard it was using does not support the presumption that the state court

10

adjudicated the federal claim on the merits. Id. Petitioner also argues that the admission of this

11

Northern District of California

United States District Court

12

evidence was prejudicial and violated his due process rights. Id. at 17.
1.

13

Petitioner argues that this subclaim should be reviewed de novo because the California

14
15
16

Petitioner Failed to Exhaust as a Federal Claim

Supreme Court failed to consider Petitioner’s constitutional claim. Br. on Merits at 17. Respondent
argues that the California Supreme Court’s focus on other issues shows an implicit rejection of

17
18

Petitioner’s Confrontation Clause claim and that Crawford v. Washington, 541 U.S. 36 (2004) does

19

not apply to Petitioner’s claim because the decision is not retroactive on collateral appeal. Ans. at

20

12. Petitioner asserts that Crawford does apply because the decision issued prior to the finalization

21

of Petitioner’s appeal.1 Br. on Merits at 16.

22

The Court has reviewed both the record on appeal and on state habeas and has not found an
23
24

instance where Petitioner raised this claim as a federal one, let alone as one that violated his rights

25

under the Confrontation Clause. The most Petitioner said in this regard was, “Particularly in a case

26

where the issue of whether or not the victim had been killed was in dispute, such a statement,

27
28

admitted without cross-examination, was devastating to the defense.” AG 11938. A litigant
1

Petitioner is correct that Crawford applies to his case, as it issued more than a month before
Petitioner’s appeal was final.
20

1

wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court

2

petition or brief, for example, by citing in conjunction with the claim the federal source of law on

3

which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim

4

“federal.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). Petitioner cited no federal law in conjunction

5

with this subclaim. Respondent, however, has waived exhaustion.
6
7
8
9
10

2.

The Admission Did Not Violate Petitioner’s Confrontation Clause Rights

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the
accused has the right to “be confronted with the 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

11

Northern District of California

United States District Court

12
13

procedural rather than a substantive guarantee. Crawford, 541 U.S. at 61.
The Confrontation Clause applies to all “testimonial” statements. See Crawford, 541 U.S. at

14

50-51. “Testimony . . . is typically a solemn declaration or affirmation made for the purpose of

15

establishing or proving some fact.” Id. at 51 (internal quotation and citation omitted). “An accuser

16

who makes a formal statement to government officers bears testimony in a sense that a person who

17
18

makes a casual remark to an acquaintance does not.” Id. The Confrontation Clause applies not only

19

to in-court testimony but also to out-of-court statements introduced at trial, regardless of the

20

admissibility of the statements under state laws of evidence. Id. at 50-51. Hearsay that is not

21

testimonial, “while subject to traditional limitations upon hearsay evidence, is not subject to the

22

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006); see also Whorton v.
23
24

Bockting, 549 U.S. 406, 420 (2007) (noting that under Crawford, “the Confrontation Clause has no

25

application to [nontestimonial] statements and therefore permits their admission even if they lack

26

indicia of reliability.”).

27

Even under a de novo review, Petitioner’s Confrontation Clause subclaim lacks merit

28

because Gant’s statement to Wilhelmi was not testimonial. When the primary purpose of taking an
21

1

out-of-court statement is to create an out-of-court substitute for trial testimony, the statement is

2

testimonial hearsay and Crawford applies. Michigan v. Bryant, 562 U.S. 344, 358-59 (2011).

3

When that was not the primary purpose, “the admissibility of a statement is the concern of state and

4

federal rules of evidence, not the Confrontation Clause.” Id. at 359.

5

Testimony established that Wilhelmi called numerous people as many times as he could in
6
7

order to locate his daughter. He testified that he advised Gant that the reason he was calling was to

8

“find [his] daughter so [they] could give her a decent burial and memorial service.” RT 3780, AG

9

9499. Gant’s statement in response to the question was an attempt to get Wilhelmi to stop calling

10

him and not an out-of-court substitute for trial testimony.

11

Northern District of California

United States District Court

12

Further, as noted by the California Supreme Court, Petitioner suffered no prejudice from the

13

admission of the statement because the jury was aware already that the victim’s body had never

14

been found. Crew, 31 Cal.4th at 842. Petitioner’s argument that the California Supreme Court’s

15

harmlessness finding was an unreasonable application of the facts because it failed to consider how

16

the prosecutor actually used the evidence is unavailing. Br. on Merits at 17. The question on review

17
18

is whether this Court could reasonably conclude that the California Supreme Court’s finding is

19

supported by the record. Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004). It is.

20

Accordingly, this subclaim is DENIED.

21

C.

Subclaim C: Doug Crew’s Statement

22

This subclaim challenges the trial court’s admission of Doug Crew’s, Petitioner’s brother,
23
24

testimony that Petitioner said to him, “Doug, I’ve done so many things. I think I would like to kill

25

someone, just to see if I could get away with it.” Br. on Merits at 18. Specifically, Petitioner

26

contends that admission of this statement violated his constitutional rights because it was “too

27

general, too remote in time, and not directed toward any group of persons” to fall within the scope

28

22

1
2
3
4

of California Evidence Code § 1101. Pet. at 83-84. Petitioner also alleges that the evidence
improperly suggested Petitioner had a propensity to commit murder. Id. at 84.
The California Supreme Court denied this subclaim finding that the statement was not
unduly prejudicial and constituted a general threat as defined by California law when considered

5

with other evidence. Crew, 1 Cal.4th at 842. Petitioner has failed to show that this denial was
6
7
8
9
10

unreasonable.
The admission of the statement was not so “arbitrary or so prejudicial that it rendered the
trial fundamentally unfair.” Walters, 45 F.3d at 1357 (9th Cir. 1995). As noted by Petitioner, the
prosecution produced multiple witnesses who testified that Petitioner actually confessed to the

11

Northern District of California

United States District Court

12

murder. In light of this, Petitioner’s brother’s testimony could not have prejudiced him. Brecht v.

13

Abrahamson, 507 U.S. 619, 638 (1993) (“habeas relief is warranted only if the error had a

14

‘substantial and injurious effect or influence in determining the jury’s verdict.’”). Accordingly, this

15

subclaim is DENIED.

16

D.

Subclaim D: Elander’s Statement About Disposing of the Body in Utah

17
18

Petitioner argues that the trial court violated his due process rights by admitting Richard

19

Elander’s testimony that he had a discussion with Richard Glade about disposing of a body in a

20

primitive land area in Utah. Pet. at 85-87. Petitioner argues that the lack of any direct connection

21

to him in Elander’s testimony rendered the testimony more prejudicial than probative and notes that

22

Glade should not have been called to testify to corroborate Elander on this point because the
23
24
25
26
27

defense never challenged Elander on the conversation and, thus, corroboration was not required. Id.
at 85-86.
In addition to denying the subclaim on procedural grounds, the California Supreme Court
also denied it on the merits, finding the evidence admissible. Crew, 31 Cal.4th at 843. The court

28

noted that in his testimony, Elander stated that he believed he gave the name of the person who
23

1
2
3
4

wanted to murder someone to Glade during their discussion. Id. Glade then testified that he
recalled Petitioner’s name coming up during the conversation. Id.
As with the other subclaims, Petitioner has failed to show that the state court’s denial of his
claim was unreasonable. After the prosecutor asked Elander if he recalled telling Glade who

5

wanted to kill the woman to be buried, Elander said he did, though he couldn’t be absolutely sure.
6
7

RT 3969, AG 9690. Similarly, during his questioning, Glade stated that his recollection was that

8

the need to dispose of a body was Petitioner’s. RT 4220, AG 9945. Thus, Petitioner’s argument

9

that the evidence lacked a connection to him is incorrect. To the extent Petitioner argues that there

10

existed no evidence outside Elander’s statement that Petitioner intended to be involved in burying a

11

Northern District of California

United States District Court

12

woman in the wilds of Utah, that argument goes to the weight and credibility of the evidence, which

13

is the province of the jury. See Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012) (per curiam)

14

(quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)) (“[I]t is the responsibility of the jury—not the

15

court—to decide what conclusions should be drawn from evidence admitted at trial.”).

16

Similarly, Petitioner’s argument that the evidence was prejudicial because it “misled the jury

17
18

into believing that even prior to Petitioner’s marriage to Andrade, he had planned to kill her and

19

was involved in trying to find a suitable place to dispose of her body” is unavailing. Pet. at 87.

20

Petitioner accurately states after that there was no other corroborating evidence aside from Glade’s

21

testimony. Id. That, however, does not render admission of the evidence a due process violation.

22

It, again, goes to the weight to be given the evidence, which is within the purview of the jury.
23
24
25
26
27

Moreover, the jury was free to draw its own conclusions from the testimony. Parker, 132 S. Ct. at
2152 (2012).
Because Petitioner has failed to show that the admission of the evidence was so “arbitrary or
so prejudicial that it rendered the trial fundamentally unfair,” this subclaim is DENIED. Walters, 45

28

F.3d at 1357 (9th Cir. 1995).
24

1
2
3
4

E.

Subclaim E: Elander’s Prior Consistent Statement to Marion Mitchell

Petitioner next challenges Marion Mitchell’s testimony regarding a conversation he had with
Richard Elander, wherein Elander explained that Petitioner would not be returning to South
Carolina to transfer title on the victim’s Corvette to Mitchell because Petitioner had killed his wife.

5

Petitioner argues that this testimony violated his constitutional rights and rendered his trial
6
7

fundamentally unfair. Pet. at 91. Petitioner argues that Elander’s statement to Mitchell lacked

8

indicia of reliability because Elander knew the police were looking for Petitioner and, thus, wanted

9

to shift all blame to Petitioner and minimize his exposure. Id. The prejudice, he says, was

10

exacerbated by the prosecutor’s closing argument that Elander told Mitchell of the murder prior to

11

Northern District of California

United States District Court

12
13
14
15
16

Elander’s cooperation with the police and subsequent grant of immunity, thus casting Elander’s
statement in a more reliable light. Id.
The California Supreme Court denied this claim, finding the evidence admissible as a matter
of state law. Crew, 31 Cal.4th at 843-44. The court noted that Petitioner did not challenge the
statement on the ground that Elander knew the police were investigating Petitioner’s role in the

17
18
19
20
21

victim’s disappearance at the time he made it. Id.
Petitioner has failed to show that this denial was unreasonable. There is no clearly
established federal law that prohibits the introduction of such evidence. See Holley, 568 F.3d at
1101 (The Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly

22

prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.”).
23
24

Moreover, to the extent Petitioner argues that the jury was given the impression that Elander made

25

this statement prior to becoming aware that he was also a subject of the investigation, defense

26

counsel elicited from him testimony that he knew the police were looking for Petitioner in

27

connection with the victim’s disappearance. RT 4029, AG 9750. The jury was able to weigh this

28

factor when determining the credibility of Elander’s statement. The prosecutor’s argument that
25

1

Elander made the statement before becoming involved in the investigation was not evidence and the

2

jury was instructed as such. Because Petitioner cannot show that the California Supreme Court’s

3

denial of this subclaim was unreasonable, it is DENIED.

4

F:

Subclaim F: Testimony Regarding the Blue Blanket

5

In this final subclaim, Petitioner challenges the admission of a statement by Kathy Harper, a
6
7

former girlfriend of his, that she overheard Elander and Petitioner discussing a “bloody blue

8

blanket.” Pet. at 92-93. Harper testified that she heard only “a bloody blue blanket” and “I got

9

sick” and could not remember which of the two men made the statements. RT 3892, AG 9612.

10

Petitioner argues that this testimony violated his constitutional rights because it was vague,

11

Northern District of California

United States District Court

12
13

irrelevant, and could not be connected to Elander’s prior testimony that Petitioner had told Elander
that after he shot the victim, he covered her in blankets. Pet. at 92-93.

14

The California Supreme Court denied this subclaim both as procedurally barred because

15

defense counsel failed to object and, alternatively, on the merits. Crew, 31 Cal.4th at 844. The

16

court held that the admission of the testimony was harmless because Elander had testified that he

17
18
19

said he covered the body with a blanket, Harper’s testimony was brief, and it added little to the
evidence against Petitioner. Id.

20
21

Petitioner has not shown that this denial was unreasonable. As noted above, there is no
clearly established federal law prohibiting the admission of such evidence. In fact, Petitioner’s

22

entire argument is predicated on admissibility under the California Evidence Code. The Supreme
23
24

Court has repeatedly held that federal habeas relief is unavailable for violations of state law or for

25

alleged error in the interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216,

26

219 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, this subclaim is DENIED.

27

//

28

//
26

G.

1

In addition to his specific subclaims, Petitioner alleges that the cumulative effect of the

2
3
4

Cumulative Error

erroneously admitted evidence outlined above rendered his trial fundamentally unfair. Br. on
Merits at 19. In some cases, although no single trial error is sufficiently prejudicial to warrant

5

reversal, the cumulative effect of several errors may still prejudice a defendant so much that his
6
7

conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003)

8

(reversing conviction where multiple constitutional errors hindered defendant’s efforts to challenge

9

every important element of proof offered by prosecution). However, where there is no single

10

constitutional error existing, nothing can accumulate to the level of a constitutional violation. See

11

Northern District of California

United States District Court

12

Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). With respect to the subclaims of Claim 11, the

13

California Supreme Court found no errors and Petitioner failed to show that any of those

14

determinations were unreasonable.

15
16

Additionally, even if he had shown error, he has not shown that he was prejudiced by one or
more errors. The proper question in assessing harm in a habeas case is, “‘Do I, the judge, think that

17
18

the error substantially influenced the jury’s decision?’” O’Neal v. McAninch, 513 U.S. 432, 436

19

(1995). If the court is convinced that the error did not influence the jury, or had but very slight

20

effect, the verdict and the judgment should stand. Id. at 437. Petitioner has not made such a

21

showing. He, thus, is not entitled to relief for his cumulative error subclaim and it is DENIED.

22

4.

Claim 13: Introduction of Victim Impact Evidence at the Guilt Phase

23
24

In this claim, Petitioner argues that testimony by Stacey Andrade, the victim’s daughter, and

25

an exchange between the court and Andrade constituted improper victim impact testimony in the

26

guilt phase. Br. on Merits at 20-21. Petitioner states Andrade’s testimony regarding her

27

relationship with her mother was false and misleading because there was evidence to show that the

28

victim willingly left her children in the care of her ex-husband and had previously left them in the
27

1

care of her parents while she pursued a “single” lifestyle, rendering the evidence of minimal

2

probative value. Pet. at 98-99. He also asserts that it was cumulative of other witnesses’ testimony

3

regarding the victim’s relationship with her daughter. Id. at 99.

4

The California Supreme Court denied this claim on procedural grounds because defense

5

counsel failed to object to the testimony and on the merits. Crew, 31 Cal.4th at 844. The court held
6
7
8

that Andrade’s testimony was highly relevant to the issue of whether the victim disappeared of her
own accord or was murdered. Id.

9
10

Petitioner has failed to show that this denial by the California Supreme Court was
unreasonable. The admission of evidence can violate due process only if there are no permissible

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Northern District of California

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12

inferences that the jury may draw from it. See Jammal, 926 F.2d at 920. As noted by the state

13

court, the information was relevant to counter the defense’s assertion that the victim willingly

14

disappeared and did not return to her family. Petitioner presented his own evidence to show that the

15

victim had left her children before in order to substantiate the claim that she would do so again

16

without returning. It was the province of the jury to weigh the credibility of each side’s evidence on

17
18

the issue.
As noted by Respondent, the colloquy between the trial court and Andrade, wherein the

19
20
21

court asked how Andrade was faring, was less relevant. However, Petitioner has not shown that this
exchange rendered his trial fundamentally unfair. See Estelle, 502 U.S. at 75. Andrade’s response

22

to the trial court was brief, largely positive, and made no reference to Petitioner. The prosecutor
23
24

made no mention of Andrade’s comments in his guilt-phase closing argument.
Petitioner has failed to show that he was prejudiced by any of Andrade’s testimony or

25
26
27

statements. Accordingly, this claim is DENIED.
//

28

//
28

1

5.

Petitioner claims the California death penalty scheme fails to narrow the class of first-degree

2
3
4

Claim 23: Death Penalty Statute Fails to Narrow Class of Death-Eligible Defendants

murderers eligible for the death penalty adequately because the statute has enumerated too many
special circumstances. Pet. at 156. Petitioner asserts that the financial gain special circumstance for

5

which he was convicted encompasses a broad range of culpability and is overly inclusive.
6

The California Supreme Court denied this claim on direct appeal stating that this challenge

7
8

had been rejected numerous times before. Crew, 31 Cal.4th at 854. Petitioner has not shown the

9

state court’s reasoned opinion is contrary to, or an unreasonable application of, clearly established

10

United States Supreme Court law, nor has petitioner shown the opinion relied on an unreasonable

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Northern District of California

United States District Court

12

determination of the facts.

13

The United States Supreme Court has held California’s death penalty scheme does

14

appropriately narrow the class of death-eligible defendants and does not apply to every defendant

15

convicted of murder. See Tuilaepa v. California, 512 U.S. 967, 972 (1994) (holding that to pass

16

constitutional muster, state’s death penalty scheme “may not apply to every defendant convicted of

17
18

murder; it must apply only to a subclass of defendants convicted of murder”). As noted, Petitioner

19

was death-eligible because the jury found true the financial gain special circumstance. Petitioner

20

has not shown that the special circumstance was not sufficiently narrowing.

21

In his merits briefing, Petitioner supports this claim by drawing upon data compiled in the

22

“Baldus Report.” Petitioner states that “[a]mong persons ultimately convicted of first-degree
23
24

murder based on offenses committed between January 1978 and June 2002, 95 percent were eligible

25

for the death penalty based on the facts of the offense under California law in place as of 2008.”2

26

Br. on Merits at 26. Petitioner argues that this five percent reduction in the number of death-eligible

27
28

defendants when compared with the law challenged and found unconstitutional in Furman v.
2

As Petitioner notes, he was convicted under the 1978 law. He does not provide information
regarding how this statistic would vary if compared to the prior version of the law.
29

1

Georgia, 408 U.S. 238 (1972), shows that California has failed to narrow death eligibility

2

adequately. Id. at 26-27. He notes that the Baldus Study also found that 59 percent of defendants

3

convicted of first-degree murder, second-degree murder, and voluntary manslaughter were also

4

death-eligible during the relevant time period. Id. at 27. Thus, he notes, the statute fails to limit

5

those who are death-eligible adequately.
6
7

The Ninth Circuit considered and rejected a substantially similar “failure to narrow” claim in

8

Karis v. Calderon, 283 F.3d 1117, 1141 n.11 (9th Cir. 2002). As the Karis court observed, “[t]he

9

California [death penalty] statute satisfies the narrowing requirement set forth by [the U.S. Supreme

10

Court.]” Id. “The special circumstances in California apply to a subclass of defendants convicted

11

Northern District of California

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12

of murder and are not unconstitutionally vague. . . . California has identified a subclass of

13

defendants deserving of death and by doing so, it has narrowed in a meaningful way the category of

14

defendants upon whom capital punishment may be imposed.” Id. (internal quotation marks

15

omitted).

16

Likewise, in Mayfield v. Woodford, 270 F.3d 915, 924 (9th Cir. 2001), the Ninth Circuit

17
18

denied a certificate of appealability on a “failure to narrow” argument. As the court noted, “[a]

19

defendant is eligible for the death penalty under the 1978 statute [as enacted in Cal. Penal Code §

20

190.2] only if, at the guilt phase, the jury finds him guilty of first degree murder and finds to be true

21

a statutorily defined special circumstance.” Id. That finding narrows the total set of murderers to a

22

more limited set of defendants eligible for the death penalty. “At the penalty phase, the class of
23
24

defendants eligible for death is again narrowed by the jury's application of a series of statutorily

25

enumerated aggravating or mitigating factors,” which are listed in Cal. Penal Code § 190.3. Id.

26

Thus, a “reasonable jurist could not debate . . . that the 1978 California [death penalty] statute,

27

which narrowed the class of death-eligible defendants at both the guilt and penalty phases, was

28

30

1
2

constitutional.” Id. Furthermore, district courts have specifically rejected “failure to narrow”
arguments that draw upon the data in the Baldus Report.

3
4

For example, in Webster v. Chappell, 2014 WL 2526857, *56-66 (E.D. Cal. June 4, 2014),
the district court entered a lengthy discussion regarding the background of the Baldus Report, what

5

it purported to show, and why that showing was deficient to prove the petitioner’s argument that the
6
7

California death penalty statute failed to narrow the class of death-eligible defendants adequately.

8

Ultimately, the district court found that “the studies petitioner has presented to this court draw

9

conclusions from manufactured comparisons that do not withstand scrutiny. And, . . . in his

10

argument that almost every first degree murder in California would include special circumstances,

11

Northern District of California

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12

petitioner never addresses or explains why or how California’s division of intentional murder into

13

degrees does not contribute to narrowing the death-eligible class of criminal defendants.” Id. at 62.

14

The same rationale applies here. Petitioner has failed to show that he is entitled to relief.

15

Accordingly, this claim is DENIED.

16

6.

Claim 33: The California Death Penalty Statute is Unconstitutional

17
18

In this claim, Petitioner contends that the California death penalty statute is

19

unconstitutionally deficient. He argues that a combination of jury instructions based on the

20

“deficient statutory scheme” and misleading and improper argument by the prosecutor failed to give

21

the jury the proper guidance to impose an individualized and reliable selection of the death penalty.

22

Pet. at 277. Specifically, Petitioner challenges: (1) the instructions’ failure to delineate between
23
24

mitigating and aggravating factors; (2) treating the absence of certain mitigating factors as evidence

25

in aggravation, particularly considering the rarity with which those factors would be present in

26

mitigation; (3) the undifferentiated and unitary list of sentencing factors, which rendered Cal. Penal

27

Code § 190.3 unconstitutionally vague; (4) the failure to label mitigating factors; (5) the failure to

28

require the jury to find beyond a reasonable doubt that the aggravating factors outweighed the
31

1

mitigating factors; (6) the failure to require the jury to find beyond a reasonable doubt that a death

2

sentence was the appropriate sentence; (7) the failure to specify that all aggravating factors be

3

proven beyond a reasonable doubt; (8) the failure of the statute and jury instructions to designate

4

any burden of proof standards; (9) the failure of the statute and instructions to require unanimity of

5

any aggravating factor; (10) the failure of the statute and instructions to require written findings by
6
7

the jury as to which aggravating factors they used to base the death sentence; (11) the failure to

8

advise the jury that unanimity was not required to make a finding of a mitigating factor; (12) the use

9

of “extreme,” “reasonably believed,” and “impaired” in the mitigating factors jury instructions; (13)

10

the failure to narrow the class of death-eligible offenders; (14) the unfettered discretion given to

11

Northern District of California

United States District Court

12

prosecutors in deciding whether to seek the death penalty; and (15) the lack of intracase and

13

intercase proportionality review and the failure of the statute to require one on appeal. Id. at 278-

14

88.

15
16

This California Supreme Court rejected all of Petitioner’s arguments challenging the
constitutionality of the death penalty statute. Crew, 31 Cal.4th at 859-60. Specifically, the state

17
18

court held that the federal Constitution does not require that sentencing factors be identified as

19

aggravating or mitigating, that prosecutors do not need to show beyond a reasonable doubt that

20

aggravating factors outweigh the mitigating ones, the jury does not need to find capital punishment

21

is appropriate beyond a reasonable doubt, not requiring jury unanimity on an aggravating factor

22

does not render the statute unconstitutional, the jury is not required to make findings on aggravating
23
24
25
26
27

factors, and California jury instructions do not require jury unanimity on mitigating factors, nor do
they mislead the jury into believing unanimity is required. Id. at 860.
Petitioner cannot show that the state court’s reasoned opinion is contrary to, or an
unreasonable application of, clearly established United States Supreme Court law. Petitioner also

28

fails to demonstrate that the state court’s opinion relied on an unreasonable determination of the
32

1

facts. Tellingly, Petitioner does not—and cannot—cite a single decision in support of his argument

2

that the California death penalty statutes are unconstitutional under federal law. Without any

3

citation to mandatory or persuasive authority in support of his argument, Petitioner cannot

4

demonstrate that the state court’s denial of this claim was objectively unreasonable.

5

Indeed, the state court’s reasoned decision was consistent with clearly established federal
6
7

law. For example, Petitioner alleges that the penalty phase jury instructions are deficient because

8

they do not designate mitigating and aggravating factors. In Tuilaepa, however, the United States

9

Supreme Court held that giving a penalty phase jury a unitary list of sentencing factors that does not

10

designate which factors are mitigating and which are aggravating does not violate the Constitution.

11

Northern District of California

United States District Court

12

512 U.S. at 978–79. Moreover, the Ninth Circuit has found that California’s “death penalty

13

statute’s failure to label aggravating and mitigating factors is constitutional.” Williams v. Calderon,

14

52 F.3d 1465, 1484 (9th Cir.1995) (citations omitted). The Williams court also held that

15

California’s death penalty statute “offers constitutionally-sufficient guidance to jurors to prevent

16

arbitrary and capricious application,” “ensures meaningful appellate review,” and “need not require

17
18

written jury findings in order to be constitutional.” Id. (citations omitted). The court also held that

19

“the failure of the statute to require a specific finding that death is beyond a reasonable doubt the

20

appropriate penalty does not render it unconstitutional.” Id. Because Petitioner is unable to show

21

an entitlement to relief on this claim, it is DENIED.

22

7.

Claim 37: Petitioner’s Prolonged Confinement Violates His Constitutional Rights

23
24

Petitioner asserts that his prolonged confinement under a death sentence violates his right to

25

be free from cruel and unusual punishment because the combination of uncertainty and long delay

26

can result in a significant amount of anxiety or other mental illness, which significantly increases

27

the amount of punishment to which Petitioner is subject. Br. on Merits at 33, 36. As Respondent

28

notes, there is no clearly established federal law that entitles Petitioner to relief on this claim.
33

1

Moreover, the argument Petitioner raises here was found by the Ninth Circuit to be barred by

2

Teague v. Lane, 489 U.S. 288 (1989), which prohibits the application of a new rule of law on

3

collateral review. Jones v. Davis, 806 F.3d 538, 552 (9th Cir. 2015). The Jones court found that

4

“there is a ‘simple and logical difference’” between the rule articulated in Furman v. Georgia, 408

5

U.S. 238 (1072), on which Petitioner relies, “prohibiting unfettered discretion by a jury deciding
6
7

whether to impose the death penalty and a rule prohibiting systemic lengthy delays resulting from a

8

state’s post-sentencing procedures in the carrying out of that sentence when permissibly imposed.”

9

Id. at 551 (citation omitted). Thus, a decision finding the systemic delay constitutes cruel and

10

unusual punishment would constitute a new rule to be applied here on collateral review. Petitioner

11

Northern District of California

United States District Court

12
13

is not entitled to relief on this claim and it is, accordingly, DENIED.
8.

Claim 38: The Method of Execution in California is Forbidden by State, Federal, and
International Law

14

For this claim, both parties acknowledge that absent an approved lethal injection protocol,

15
16

the claim is not ripe. Accordingly, it is denied without prejudice to renewal upon the approval of a

17

finalized protocol.

18

//

19

//
20
21

//

22

//

23

//

24

//

25

//
26
27

//

28

//

34

CONCLUSION

1
2
3
4

For the foregoing reasons, Claims 8, 10, 11, 13, 23, 33, and 37 are DENIED. Claim 38 is
DENIED WITHOUT PREJUDICE.
Within ninety (90) days of the filing date of this Order, Petitioner shall file a brief

5

addressing the merits of the next round of claims, which shall include no more than nine claims.
6
7

Respondent shall file a response within forty-five (45) days of the service of the opening brief. The

8

reply is due within fifteen days of the date of service of the response. The parties are to observe a

9

40-page limit for their briefs.

10
11

Northern District of California

United States District Court

12
13
14

IT IS SO ORDERED.
Dated: July 18, 2017
____________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

35