Guffey v. Subia et al

Filing 32

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Daniel Guffey. Court recommends that Court issue an Order: 1.) approving and adopting the Report and Recommendation, and 2.) directing that Judgment be entered denying the Petition. Objections to R&R due by 9/28/2009. Any reply to the objections shall be filed no later than 10 days after being served w/ the objections. Signed by Magistrate Judge Cathy Ann Bencivengo on 8/28/2009. (All non-registered users served via U.S. Mail Service). (jah) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 Petitioner, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T h is Report and Recommendation is submitted to Chief United States District Judge Irma E . Gonzalez pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States D is tric t Court for the Southern District of California. I. F E D E R A L PROCEEDINGS D a n ie l Guffey (hereinafter "Petitioner"), is a state prisoner proceeding pro se with a P e titio n for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (D o c . No. 1.) Petitioner challenges his San Diego County Superior Court convictions for second d e g re e murder and conspiracy to commit assault, claiming that his federal constitutional rights w e re violated because: (1) there was insufficient evidence to support the murder conviction; (2) th e failure to sever his trial from his co-defendants violated due process; and (3) the admission -1RICHARD SUBIA, Warden, et al., Respondents. vs. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS DANIEL GUFFEY, Civil No. 07cv1620-IEG (CAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

o f a co-defendant's extrajudicial statement violated Petitioner's right to confront and crosse x a m in e witnesses. (Pet. at 6-9.) R e sp o n d e n t has filed an Answer to the Petition with an incorporated Memorandum of P o in ts and Authorities in support thereof, and has lodged portions of the state court record. (D o c. No. 25.) Respondent contends that habeas relief is unavailable because the state court's a d ju d ica tio n of Petitioner's claims involved an objectively reasonable application of clearly e s ta b l is h e d federal law. (Memorandum of Points and Authorities in Support of Answer ["Ans. M e m ." ] at 16-23.) Petitioner has filed a Traverse with an attached Notice of Lodgment. (Doc. N o . 29.) II. S T A T E PROCEEDINGS In a two-count Second Amended Information filed in the San Diego County Superior C o u rt on April 18, 2003, Petitioner and his two co-defendants, Jesse Lyle Gehrke and C h ris to p h e r Smith, were charged with conspiracy to commit assault in violation of Cal. Penal C o d e section 182(a)(1), and murder in violation of Cal. Penal Code section 187(a). (Lodgment N o . 2, Clerk's Transcript ["CT"] at 26-28.) It was also alleged that Gehrke and Smith personally u sed a knife during the commission of the murder. (CT 27-28.) On May 23, 2003, a jury found Petitioner guilty of second degree murder and conspiracy to commit assault. (CT 527-28.) The same jury found co-defendants Gehrke and Smith guilty o f first degree murder and conspiracy to commit assault, and returned true findings that they p e rs o n a lly used a knife during the commission of the offenses. (CT 330-31, 621-22.) On S e p te m b e r 18, 2003, Petitioner was sentenced to a state prison term of 15 years-to-life. (CT 5 6 4 .) Gehrke was sentenced to 57 years-to-life and Smith to 27 years-to-life. (CT 421, 650.) P e titio n e r appealed his conviction to the California Court of Appeal, Fourth Appellate D is tric t, Division One, raising, inter alia, all claims presented in his federal habeas Petition here. (L o d g m en t Nos. 9-10.) The appellate court consolidated Petitioner's appeal with that of his two c o -d e f en d a n ts , and affirmed the convictions in an unpublished opinion. (Lodgment No. 6, P e o p le v. Gehrke, et al., D042984, slip op. (Cal.Ct.App. Jan. 31, 2006).) Petitioner thereafter -2-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

f ile d a petition for review in the state supreme court raising the claims presented here. (S u p p le m e n ta l Lodgment No. 8.) That petition was consolidated with the petitions for review f ile d by Petitioner's co-defendants, and denied by an order which stated in full: "Petitions for re v ie w DENIED." (Lodgment No. 8.) II. U N D E R L Y IN G FACTS T h e following statement of facts is taken from the appellate court opinion affirming P e titio n e r's conviction on direct review. This Court gives deference to state court findings of f a ct and presumes them to be correct. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts). G u f f e y had a romantic relationship with Kathleen Dockler over a period of ye a rs and, in the summer and fall of 2001, he lived with her in her trailer home in D e Anza Cove. (All relevant dates are in 2001 except as otherwise noted.) In the f a ll, the relationship between Guffey and Dockler deteriorated and in December D o ck ler ended the relationship, telling Guffey to move out. Guffey was very u p s e t about the breakup and begged Dockler to give him another chance. Dockler d e c lin e d and, shortly thereafter, she began an intimate relationship with Rawson, a close friend of Guffey's who Guffey had introduced to her in November. G u f f e y began stalking Dockler, showing up at places where she was, going to her h o m e uninvited, calling her repeatedly at her home and on her cell phone and s e n d i n g her e-mails. O n December 24, Guffey's family saw Dockler and Rawson while they w e r e out to dinner. The next day, Guffey went to Dockler's trailer home and w a ite d inside until Dockler came home, at which time he confronted her about her re la tio n s h ip with Rawson and threatened to kill Rawson and his family. Guffey a lso told Dockler's friend, Linda Drake, that he was going to "take (Rawson) out" a n d that Rawson was not "going to be a problem anymore." Thereafter, Guffey c o n tin u e d to make frequent calls to Dockler, seeking to resume their relationship. D o c k le r and Rawson became nervous about Guffey and began hiding out at R a w s o n 's parents' house in La Mesa. O n approximately December 29, Guffey went to the hotel room where his f rie n d , Bruce Phifer, was living; Guffey was upset about Dockler and asked Phifer to beat Rawson up. Phifer declined, saying that he did not want to get involved b u t that he would mention it to Gehrke, who worked for his drywall business and f re q u e n tly stayed with him. Although Gehrke was in the room at the time, he did n o t participate in the conversation; when Guffey left, however, Gehrke followed h im . O n December 30, Guffey broke into the Rawsons' home and tried to start a fight with Rawson. Guffey screamed at Rawson, claiming that Rawson was w ith h o ld in g something from Dockler. After Rawson failed to respond to Guffey's p ro v o c a tio n , Guffey grabbed the television remote control from Rawson's hand a n d threw it against the wall, breaking it into pieces. Guffey threatened to kill -3-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

R a w s o n , left and placed a note on Dockler's car that said "I told you the truth." D o c k ler and Rawson reported the incident to the La Mesa Police Department. A f ter leaving the Rawsons' house, Guffey went with Gehrke and Phifer to D o c k le r 's trailer. While Dockler and Rawson were waiting for the La Mesa p o lic e to arrive at the Rawsons' house, Guffey called and left a message indicating th a t he had just been inside the trailer. Guffey also made repeated calls to D o c k le r's cell phone until one of the La Mesa police officers talked to Guffey and to ld him to stop. Dockler and Rawson gave their report and then went to the tra ile r to meet with San Diego police about the break in; Dockler discovered that s o m e of her things, including a computer, were gone. As a result of these in c id e n ts , Dockler and Rawson decided that they needed to get a restraining order a g a in s t Guffey. T h e next day, Guffey called Phifer, looking for Gehrke; Phifer wrote down G u f f e y's phone number and gave it to Gehrke. Thereafter, Phifer did not see G e h r k e , either at work or his motel room, for four or five days. In the early morning hours of January 1, 2002, Guffey e-mailed Dockler a lo v e poem that said in part "by the time that you read this, it will have all come u n d o n e ." That night, Guffey drove to the Rawsons' neighborhood several times to look for Dockler's car. During the drive, Guffey told a friend, Amber Stanley, th a t he felt Rawson had betrayed him and asked whether she knew anyone who w o u ld help set Rawson up to be the victim of a hit-and-run. Close family friend J e re m ia h Beamer later joined Guffey and Stanley for part of the morning; he th o u g h t Guffey appeared angry and that his demeanor was "weird." At a p p ro x im a te ly 4 a.m. on January 2, 2002, Guffey called Phifer, upset and saying th a t something bad had happened. M e a n w h ile , on the evening of January 1, 2002, Gehrke and Smith (who a ls o did work for Phifer's business) talked to Kyla Stark, a homeless woman who k n e w Smith; they told her that they were going to a house in La Mesa to collect " q u ite a bit" of money from a man and offered to pay her if she would knock on th e door and help them get inside. The three walked from El Cajon to La Mesa; th e y got lost several times and arrived in La Mesa sometime before 9 a.m. the next m o rn in g . T h a t same morning, Dockler dropped Rawson off at his parents' home and w e n t to work, with plans to return later in the morning so that they could go get a restraining order. At approximately 8:15 a .m., Rawson called the La Mesa p o lic e detective to whom he had spoken about the December 30 incident and left a message. An hour or so later, a neighbor of the Rawsons noticed two men and a woman who looked out of place walking in the neighborhood. L a te r in the morning, Stark, Gehrke and Smith went to the Rawsons' house a n d knocked on the door; Rawson, who was alone in the house, recognized G e h rk e and invited them all to come inside. In the same time frame (sometime b e tw e e n 11 and 11:15 a.m.), a woman who was working nearby saw Guffey's van, w h ich was distinctive because it had the logo and phone number of his locksmith b u s in e s s on the side, driving very slowly down the street in front of the Rawsons' house. O n c e inside the house, Gehrke and Smith sat and talked with Rawson for a half hour or so, while Stark wandered around the house, looking at the C h r is tm a s decorations and Mrs. Rawson's dollhouse. During this time, Gehrke u s e d Rawson's phone to call Guffey's cell phone. After hanging up, Gehrke -407cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in d ica ted to the group that Rawson's girlfriend was coming over in 20 minutes to b rin g some money. Sometime between 11:15 a.m. and 11:30 a.m., Dockler called th e Rawsons' house to tell Rawson she was running late; a female answered the p h o n e and Dockler asked to speak to Rawson. The woman passed the phone to S m ith and, although Dockler did not recognize his voice, she told him that she was o n her way. S ta rk went to the kitchen to get some cookies to eat and heard Smith say " sta y down" several times. She went back to the living room and saw Gehrke and S m ith stabbing Rawson repeatedly and trying to keep him down on the floor as he f o u g h t to escape out the front door. Stark was scared and tried to leave, but Smith g ra b b e d the back of her shirt, telling her to sit down and shut up or she would be n e x t. As Rawson struggled with the two men, Smith grabbed him and slit his th ro a t; Rawson fell near the front door, blocking it. T h e re was "blood everywhere," which made Stark nauseous, and she ran to the bathroom and got sick. By the time she came out of the bathroom, Gehrke a n d Smith had left the house, jumped the fence and were running down the street. S ta rk yelled at the men to wait because she did not know how to get back to El C a jo n , but they kept running, taking off their shirts as they did so. In the meantime, after leaving the Rawsons' neighborhood, Guffey drove to Mission Valley to pick up Amber Stanley. While he was in the parking lot of th e hotel where Stanley was staying, he received Gehrke's call from the Rawson's h o m e phone. Stanley noticed that Guffey was wearing the same clothes as he had o n the prior night, but was "really agitated" and appeared to have injuries on his h a n d s. Guffey told Stanley that he had slapped Rawson around and "got(ten) (R a w s o n ) good"; Guffey was prone to bragging, so Stanley did not believe him, b u t she was frightened by his behavior. S h o rtly after noon, Gehrke and Smith showed up unexpectedly at the El C a jo n home of Robert Bunch, an acquaintance of Smith's; they were sweating and a sk e d if they could come in to clean themselves up. The men stayed for about 30 m in u te s, during which time they washed their hands in the kitchen and Smith used B u n c h 's cell phone to call Guffey. D o c k le r arrived at the Rawsons' house at about noon, but was unable to get in sid e . After a period of time, Rawson's parents came home and with Dockler, d is c o v e re d Rawson's body; he had been stabbed multiple times and his neck had b e e n slit. The coroner concluded that Rawson had been dead for at least a couple o f hours by the time his parents found him. Police arrested Guffey that evening; G u f f e y called Beamer from jail and told him to not say anything to the police a b o u t their drive in the Rawsons' neighborhood the prior morning because doing so could affect Beamer's military career. T h e next morning, Stark bumped into Smith in an alley in El Cajon and e x p re ss e d dismay about what had happened. Smith responded that she needed to g e t out of town and to keep her mouth shut. That evening, Stark was still upset; s h e got drunk and told Joseph Brown, a former boyfriend, that she had helped two m e n get inside the house of a man who owed a drug dealer a large sum of money a n d that, once inside, the men stabbed the occupant. Stark decided to go into h id in g . T w o days after the murder, Gehrke and Smith showed up at Phifer's motel ro o m , saying that they needed to leave town. Gehrke told Phifer that a woman h e lp e d them get into the Rawsons' house; Smith said that they had "offed" -507cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

R a w s o n and that he had driven home his "Old Timer," a brand of pocketknife that h e owned. Phifer's fiancée, Kathleen Wheaton, became very upset and told Phifer to get the men out of there, so Phifer drove Gehrke and Smith back to El Cajon. P h if e r subsequently learned that the police were looking for him, so he stopped g o in g to the motel room and to work for awhile. O n January 20, 2002, Smith bragged to a friend that he had slit someone's th ro a t. Shortly thereafter, the police arrested Gehrke and Smith for parole v io latio n s, but did not charge them with the murder. The officers found Guffey's c e ll phone number written on a scrap of paper in Gehrke's wallet. O n January 23, 2002, police located Phifer at a party; Phifer voluntarily left w ith the officers and agreed to a taped interview. During the interview, Phifer w a s asked whether he was afraid of Gehrke and, after he responded that he was, o n e of the detectives commented that Phifer "kn(e)w Gehrke history." Phifer told th e detectives about his conversations with Guffey before the murder and that S m ith and Gehrke had confessed to killing Rawson several days afterward. B ase d on a tip, police located Stark in early February 2002 and arrested her. S ta rk originally claimed that she did not know anything about the stabbing or the m u rd e r, but after the officers told her they knew of her involvement, showed her p i c tu r e s of Gehrke and Smith and told her the men were in jail, she told them ab o u t what had happened. Although Stark was originally charged with murder, sh e ultimately pleaded guilty to being an accessory after the fact to the murder. In June 2002, Guffey talked to the prosecutor and a detective in a c o n f id e n tia l interview. Four months later, the district attorney charged Gehrke, S m ith and Guffey with one count each of conspiracy to assault and murder, a lle g in g that Gehrke and Smith had personally used a deadly and dangerous w e a p o n in committing the murder and that they suffered various prison, serious f e lo n y and strike priors. A t trial, the prosecution introduced evidence of the foregoing, although P h if e r's trial testimony varied substantially from his statements to police and his p re lim in a ry hearing testimony; he claimed he could not remember much about the c irc u m s ta n c e s surrounding the murder, other than his conversation with Guffey, o r his prior statements because he was using drugs heavily until shortly before the tria l. Gehrke presented an alibi defense, introducing evidence suggesting that he an d Phifer worked at a house in Cardiff for seven hours on the day of the murder. G u f f e y also presented alibi evidence and attempted to establish that Phifer had a sk e d Gehrke and Smith to assault or kill Rawson for failing to pay a drug debt. S m ith attacked Stark's credibility and argued that he was not involved in the m u rd e r, as established by the fact that he and Gehrke did not fit the descriptions g iv e n by the Rawsons' neighbor of the two men he saw hanging around the n e ig h b o rh o o d with Stark on the day of the murder and Gehrke's alibi evidence. (L o d g m e n t No. 6, People v. Gehrke, et al., No. D042984, slip op. at 3-9.) /// /// /// /// -6-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV . P E T I T I O N E R 'S CLAIMS (1 ) Petitioner's Fourteenth Amendment right to due process was violated because the e v id e n c e was insufficient to support a finding that the murder was the natural and probable c o n s e q u e n c e of simple assault. (Pet. at 6.) (2 ) Petitioner's Fourteenth Amendment right to due process was violated by the failure to sever his trial from the trial of his co-defendants. (Pet. at 7.) (3 ) Petitioner's right to confront and cross-examine witnesses under the Sixth and F o u r te e n th Amendments was violated by the admission of co-defendant Smith's extrajudicial s ta te m e n ts . (Pet. at 8.) V. D IS C U S S IO N F o r the following reasons, the Court finds that Petitioner's claims do not merit habeas re lie f . The Court therefore recommends that judgment be entered denying the Petition. A. S ta n d a r d of Review. T itle 28, United States Code, § 2254(a), sets forth the following scope of review: T h e Supreme Court, a Justice thereof, a circuit judge, or a district c o u rt shall entertain an application for a writ of habeas corpus in b e h a lf of a person in custody pursuant to the judgment of a State c o u rt only on the ground that he is in custody in violation of the C o n s titu t io n or laws or treaties of the United States. 2 8 U.S.C.A. § 2254(a) (West 2006) (emphasis added). U n d er 28 U.S.C. § 2254(d): (d) An application for a writ of habeas corpus on behalf of a p e rs o n in custody pursuant to the judgment of a State court shall not b e granted with respect to any claim that was adjudicated on the m e rits in State court proceedings unless the adjudication of the c la im -- (1 ) resulted in a decision that was contrary to, or involved an u n re a s o n a b le application of, clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d e te rm in a tio n of the facts in light of the evidence presented in the S ta te court proceeding. 2 8 U.S.C.A. § 2254(d) (1)-(2) (West 2006). -7-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A state court's decision may be "contrary to" clearly established Supreme Court p re c ed e n t: (1) "if the state court applies a rule that contradicts the governing law set forth in [the C o u rt's] cases" or (2) "if the state court confronts a set of facts that are materially i n d i s t in g u is h a b le from a decision of [the] Court and nevertheless arrives at a result different fro m [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court d e c is io n may involve an "unreasonable application" of clearly established federal law, "if the sta te court identifies the correct governing legal rule from this Court's cases but unreasonably a p p lies it to the facts of the particular state prisoner's case." Id. at 407. An unreasonable a p p lica tio n may also be found, "if the state court either unreasonably extends a legal principle f ro m [Supreme Court] precedent to a new context where it should not apply or unreasonably re f u s e s to extend that principle to a new context where it should apply." Id. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal la w erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." L o ck yer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). C le a rly established federal law "refers to the holdings, as opposed to the dicta, of [the United S ta te s Supreme] Court's decisions." Williams, 529 U.S. at 412. Habeas relief is also available if the state court's adjudication of a claim "resulted in a d e c is io n that was based on an unreasonable determination of the facts in light of the evidence p re se n ted in state court." 28 U.S.C.A. § 2254(d)(2) (West 2006). In order to satisfy this p rov isio n , Petitioner must demonstrate that the factual findings upon which the state court's a d ju d ic a tio n of his claims rest, assuming they rest on a factual determination, are objectively u n rea so n ab le. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). B. P e titio n e r is not entitled to habeas relief as to claim one. P e titio n e r first claims that there is insufficient evidence to support his conviction for s e c o n d degree murder because there was insufficient evidence adduced at trial that the murder w a s a natural and probable consequence of the conspiracy to commit assault. (Pet. at 6.) P e titio n e r argues that the evidence at trial merely established that he asked Phifer to scare the -8-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

v ic tim or beat him up, that Phifer was aware that Petitioner did not want the victim killed, and th a t Phifer told Gehrke to scare or beat up the victim, not to kill him. (Memorandum of Points a n d Authorities in Support of Petition ["Pet. Mem."] at 5-7.) This evidence, coupled with S ta rk 's testimony that she was completely surprised by the stabbing and did not see it coming, is , Petitioner argues, insufficient to satisfy the natural and probable consequences doctrine under C alifo rn ia law. (Id.) Respondent argues that, applying AEDPA deference, the state court's finding that the m u rd e r was a natural and probable consequence of conspiracy to commit assault under the facts o f this case was neither contrary to nor involved an unreasonable application of clearly e sta b lis h e d federal law. (Ans. Mem. at 16-19.) Respondent contends that the determination of w h e t h e r a criminal act was the natural and probable consequence of another criminal act is a q u e s tio n of fact for the jury, and, under California law, where the connection between the two o f f en s e s is close, as here, the conspirators could avoid liability for murder only where the target o f f e n s e was trivial. (Id. at 18.) The target offense was not trivial, Respondent argues, because it involved aggravated assault, because Petitioner solicited Gehrke to assault the victim knowing th a t Gehrke had previously stabbed a man during a fight, and because Petitioner had asked S ta n le y if she knew anyone who would be willing to hit Petitioner with a car. (Id.) Petitioner re p lies that AEDPA deference is not appropriate here because the appellate court failed to d ire c tly address his claim, but only dealt with a similar claim by his co-defendants, and that the ap p ellate court's determination is in any case erroneous. (Traverse at 7-13.) Petitioner presented claim one to the state supreme court in a petition for review which w a s denied without comment or citation to authority. (Lodgment No. 8; Supplemental

L o d g m e n t No. 8.) The Court must "look through" the silent denial of this claim by the state s u p re m e court to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1 9 9 1 ). The appellate court denied this claim in a reasoned opinion, stating: U n d e r the natural and probable consequences doctrine, a conspirator is liab le for "the unintended acts by coconspirators if such acts are ... the reasonable a n d natural consequence of the object of the conspiracy," even if the act was not in te n d e d as part of the agreed-upon objective, and even if the conspirator did not k n o w of the act and was not present when it was committed. (People v. Hardy, s u p r a , 2 Cal.4th at p. 188, fn omitted; also People v. Prettyman (1996) 14 Cal.4th -907cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2 4 8 , 260.) Here, although there was no evidence that Guffey personally p a rtic ip a te d in killing Rawson, the prosecution argued to the jury that Guffey was n o n e th e les s liable for the murder because murder was a natural and probable c o n se q u e n c e of the conspiracy among Guffey, Gehrke and Smith to assault R a w s o n . Guffey argues that the trial court erred in denying his motion for a c q u itta l under Penal Code section 1118.1 on the murder count against him b e c au s e , as a matter of law, murder is not a natural and probable consequence of c o n sp ira c y to commit a simple assault; alternatively, he contends the evidence was in su f f icie n t to establish that Rawson's murder was a natural and probable c o n s e q u e n c e of the conspiracy to assault him. T h e determination of whether one criminal act was a natural and probable c o n se q u e n ce of another criminal act is generally a factual question to be resolved b y the jury in light of all the circumstances. (People v. Nguyen (1993) 21 C a l.A p p .4 th 518, 531.) The test to be applied is an objective one: "(t)he issue d o es not turn on the [actor]'s subjective state of mind, but depends upon whether, u n d er all of the circumstances presented, a reasonable person in the (actor)'s p o s itio n would have or should have known that the charged offense was a re a s o n a b ly foreseeable consequence" of the target offense. (Ibid.; see also C A L J I C No. 6.11 ("what a person of reasonable and ordinary prudence would h a v e expected would be likely to occur," given the circumstances).) T h e natural and probable consequences doctrine requires a close c o n n e ctio n between the target crime and the offense actually committed and thus a conspirator will not be liable for a coconspirator's commission of a very serious c rim e , such as murder, where the target offense was "trivial." (People v. P r e tty m a n , supra, 14 Cal.4th at p. 269.) However, although Guffey argues that th e target offense of simple assault is trivial as a matter of law, the case law does n o t support his contention. (See People v. Montes (1999) 74 Cal.App.4th 1050, 1 0 5 4 -1 0 5 6 (in the context of a gang confrontation, a jury may find murder is the n a tu ra l and probable consequence of "targeted offenses of simple assault and b re a c h of the peace for fighting in public," regardless of whether participants k n e w weapons were on hand); compare People v. Hickles (1997) 56 Cal.App.4th 1 1 8 3 , 1197.) Thus, the question presented is whether the evidence was sufficient to support the jury's finding that murder was a natural and probable consequence o f the conspiracy to assault in this case. Under the circumstances, we conclude th a t it was. T h e evidence at trial was sufficient to permit an inference that Guffey a sk e d Gehrke, who was later joined by Smith, to hurt, or even kill, Rawson. Prior to the murder, Guffey made repeated threats that he would kill Rawson and he s o lic ite d Phifer to at least beat Rawson up. After Phifer turned him down, Guffey a p p ro a c h ed Gehrke, who he knew had been involved in the scuffle with Guest that e n d e d in Guest being stabbed, to do the job. Guffey also asked Amber Stanley if sh e knew anyone who would be willing to hit Rawson with a car. Shortly before th e murder, Guffey drove by the Rawsons' house, while Gehrke and Smith were in s id e , and the evidence suggests that Gehrke called Guffey's cell phone from the h o u s e . After the murder, Gehrke called Guffey from Bunch's house and Guffey th e re a f te r bragged to Amber Stanley that he had "got (Rawson) good." G u f f e y nonetheless contends that the murder was not a natural and p ro b a b le consequence of the conspiracy because there was no evidence that he k n e w Gehrke and Smith were armed or that they were likely to use weapons or f o rc e against Rawson. However, it is not necessary that the defendant knew his c o c o n sp ira to rs were armed for him to be liable for a homicide arising out of a -10-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

c o n s p ira c y to assault. (People v. Montes, supra, 74 Cal.App.4th at p. 1056; P e o p le v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) B ec au se there was sufficient evidence to support a finding that Rawson's m u rd e r was a natural and probable consequence of the conspiracy to assault R a w s o n , the trial court did not err in denying Guffey's trial motion for acquittal o f the murder charge under section 1118.1. Similarly, the court did not err in d e n yin g Guffey's posttrial motion for a new trial after finding that there was in su f f icie n t evidence to establish that the object of the conspiracy was to commit m u rde r. (L o d g m e n t No. 6, People v. Gehrke, et al., D042984, slip op. at 44-47.) B e c a u se the claim was adjudicated on its merits in the state courts, habeas relief is only a v a ilab le if that adjudication was contrary to, or involved an unreasonable application of, clearly e sta b lis h e d federal law, or was based on an unreasonable determination of the facts in light of th e evidence presented at trial. Williams, 529 U.S. at 405-07; Miller-El, 537 U.S. at 340. The c le a rly established federal law regarding sufficiency of the evidence claims in the criminal c o n tex t is set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). In Jackson, the Court held th a t the Fourteenth Amendment's Due Process Clause is violated, and an applicant is entitled to habeas corpus relief, "if it is found that upon the record evidence adduced at the trial no ra tio n a l trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U .S . at 324. In making this determination, habeas courts must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable in f e re n c es from proven facts by assuming the jury resolved all conflicts in a manner that s u p p o rts the verdict. Id. at 319. Once a state court fact finder has found a defendant guilty, f e d e ra l habeas courts must consider the evidence "in the light most favorable to the prosecution." Id . Federal habeas courts must also analyze Jackson claims "with explicit reference to the s u b s ta n tiv e elements of the criminal offense as defined by state law." Id. at 324 n.16. T h e Ninth Circuit has stated that: "After AEDPA, we apply the standards of Jackson with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005). In A llen , the Ninth Circuit first reviewed the standard of review applied by the state appellate court to a sufficiency of the evidence claim, and found that although the state court did not cite to the re le v a n t federal case law, "such a citation is not required `so long as neither the reasoning nor -11-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th e result of the state-court decision contradicts' Supreme Court precedent." Id. at 1274 n.12, q u o tin g Early v. Packer, 537 U.S. 3, 8 (2002). The state court correctly found that sufficient evidence exists to support a finding that the v ic tim 's murder was a natural and probable consequence of the conspiracy engineered by P e titio n e r to assault the victim. The state law requirements for determining whether the murder w a s a natural and probable consequence of the target crime is, as the appellate court noted, an o b je c tiv e test which "depends upon whether, under all of the circumstances presented, a re a so n a b le person in [Petitioner]'s position would have or should have known that the charged o f f e n se was a reasonably foreseeable consequence of the target offense." (Lodgment No. 6, P e o p le v. Gehrke, et al., D042984, slip op. at 45.) The jury was presented with evidence from w h ich they could reasonably conclude that the death of the victim was a foreseeable co nseq u en ce of the attack Petitioner commissioned on the victim. Kathleen Dockler, Petitioner's e x -g irlf rie n d , began a romantic relationship with the victim while still living with Petitioner, and te sti f i e d that after Petitioner found out about the relationship he twice threatened to kill the v ic tim , and that the victim was killed several days after he made the threats. (Lodgment No. 1, R e p o rte r's Tr. ["RT"] at 169-84.) Although Petitioner contends that he only asked Phifer to s c a re or beat up the victim, the jury was presented with evidence that after Phifer indicated that h e was not interested in getting involved in a domestic situation, Gehrke immediately indicated that he was interested, and the victim was killed two days after Phifer gave Gehrke Petitioner's telep h o n e number and told Gehrke to give Petitioner a call. (RT 531-37.) After the murder, G e h rk e told Phifer that they had done what Petitioner had wanted them to do, which was to stab th e victim. (RT 537-38.) This evidence, coupled with the state court's finding that Petitioner s o lic ite d Gehrke to join the conspiracy knowing that Gehrke had previously been involved in a s c u f f le in which someone was stabbed, provides sufficient evidence for the jury to find that P e titio n e r commissioned Gehrke to assault and possibly stab the victim, and that murder was a n a tu ra l and probable consequence of the target crime. Petitioner was also linked to the c o n sp ira c y by evidence that he was seen in the victim's neighborhood around the time of the k illin g , that he received a telephone call at or around the time of the killing, and that he was -12-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a w a re that Gehrke, Smith and Stark were inside the victim's house about to attack the victim. It was objectively reasonable for the state court to find that a reasonable person in Petitioner's p o s itio n knew or should have known that the victim may have been killed as a result of the type o f target crime perpetrated here. A n a lyz in g Petitioner's sufficiency of the evidence claim "with explicit reference to the s u b s ta n tiv e elements of the criminal offense as defined by state law" as the Court must, Jackson, 4 4 3 U.S. at 324 n.16, the Court finds that sufficient evidence exists in the record to support the ju ry's finding that second degree murder was a natural and probable consequence of conspiracy to assault the victim. The appellate court's determination to that extent is objectively reasonable, a n d the adjudication of this claim was neither contrary to, nor involved an unreasonable a p p lica tio n of, clearly established federal law, and was not based on an unreasonable d e te rm in a tio n of the facts in light of the evidence presented in the state courts. Accordingly, the C o u rt recommends denying habeas relief as to claim one. C. P e titio n e r is not entitled to habeas relief as to claim two. P e titio n e r contends in claim two that his Fourteenth Amendment right to due process was v io la te d by the failure to sever his trial from the trial of his co-defendants. (Pet. at 7.) S p e c if ic a lly, he argues that his defense was mutually antagonistic with the defense of his cod e f en d a n ts , and that his decision to testify in his own behalf was circumscribed because the tra n sc rip t of a "free talk" he had with the prosecutor prior to being charged would have been d is c lo s e d to his co-defendants if he testified. (Pet. Mem. at 10-18.) R e sp o n d e n t argues that the trial court properly denied Petitioner's severance motion and th e state appellate court's adjudication of this claim was neither contrary to nor involved an u n re a s o n a b le application of clearly established law. (Ans. Mem. at 19-23.) T h e Court will look through the silent denial of this claim by the state supreme court to th e appellate court opinion, which stated: When multiple defendants are jointly charged with a particular offense, th e y must be tried jointly unless the court, in its discretion, orders otherwise. (P e n .C o d e , § 1098; People v. Alvarez (1996) 14 Cal.4th 155, 190; see also Zafiro v . United States (1993) 506 U.S. 534, 537 (recognizing that joint trials promote e c o n o m y and efficiency).) On appeal, we review the trial court's decision for an -1307cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

a b u se of discretion, based on the facts as they appeared at the time of the hearing o n the motion. (People v. Pinholster (1992) 1 Cal.4th 865, 932.) Though se v e ra n c e is left to the sound discretion of the trial court, severance should g e n e ra lly be granted where (a) a codefendant has made an incriminating c o n f es s io n , (b) the association with the codefendants is prejudicial, (c) the p re se n ta tio n of evidence on multiple counts is likely to create confusion, or (d) th e re is a possibility that at a separate trial, a codefendant would give exonerating te s tim o n y. (Ibid.) W h e re , as here, the motion for a separate trial is made after the trial has c o m m e n c e d , the defendant cannot raise any appellate objection to its denial unless th e joint trial created "a gross unfairness" that deprived him of a fair trial or due p ro c e s s . (People v. Burns (1969) 270 Cal.App.2d 238, 251-252; see also People v . Pinholster, supra, 1 Cal.4th at p. 933.) Guffey contends that such unfairness re su lted here because (A) if he had been tried separately, he would have been able to take the stand without having to disclose to counsel for Gehrke and Smith the tra n sc rip t of his free-talk interview; and (B) his defense was mutually antagonistic w ith those of Gehrke and Smith. Gehrke and Smith join in Guffey's argument, b u t do not make any independent argument that their constitutional rights were lik e w is e violated. A . The Free-Talk Interview G u f f e y contends that because he was denied a separate trial, he could not te stif y without having to disclose the free-talk interview to Gehrke and Smith and th a t this interfered with his right to testify at trial. However, it was not the joint tria l, but instead the interview, that created the situation of which Guffey now c o m p lain s. Guffey could not, by making the decision to engage in a free-talk in te rv ie w with police, thereby require the trial court to give him a separate trial th a t, by statute, is disfavored in a case such as this one. For these reasons, we c o n c lu d e that the fact of the joint trial did not violate Guffey's rights to due p ro c e ss or a fair trial. B . Antagonistic Defenses

19 20 21 22 23 24 25 26 27 28 T h e law is clear that the joint trial of defendants who have conflicting or a n tag o n istic defenses does not necessarily violate a defendant's due process or fair tria l rights. (People v. Morganti (1996) 43 Cal.App.4th 643, 672-675, and cases c ite d therein; see People v. Hardy (1992) 2 Cal.4th 86, 168.) As the California S u p r e m e Court has recognized "[n]either antagonistic defenses nor the fact that ... one defendant incriminates the other amounts, by itself, to unfair prejudice.... T h a t different defendants alleged to have been involved in the same transaction h a v e conflicting versions of what took place, or the extent to which they p a rtic ip a te d in it, vel non, is a reason for rather than against a joint trial. If one i s lying, it is easier for the truth to be determined if all are required to be tried to g e th e r." (People v. Hardy, supra, 2 Cal.4th at p. 169, fn. 19, quoting Ware v. C o m m o n w e a lth (Ky.1976) 537 S.W.2d 174, 177.) Thus, a defendant who c h a lle n g e s a joint trial on the basis of antagonistic defenses must establish that the d e f en se s were so irreconcilable that "the acceptance of one party's (theory of) d e f en se (would) preclude the acquittal of the other." (People v. Hardy, supra, 2 C a l.4 th at p. 168, quoting United States v. Ziperstein (7th Cir.1979) 601 F.2d 281, 2 8 5 .) Such a challenge has rarely, if ever, resulted in the reversal of a conviction. (S e e People v. Hardy, supra, 2 Cal.4th at p. 168.) Guffey's challenge similarly f a ils . -1407cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

H e re , each of the defendants denied their individual culpability and a tta c k ed the credibility of the prosecution's witnesses. Gehrke and Guffey p r e s e n te d evidence that each of them was somewhere other than the Rawsons' h o u s e at the time of the murder. Smith argued that the neighbor's description of th e three people who were in the vicinity of the Rawsons' house on the morning o f the murder and Gehrke's alibi evidence established that two other men a c co m p a n ie d Stark to the Rawsons' home and committed the murder. These, the d e f en d a n ts ' primary theories of defense at trial, were not at all conflicting or a n ta g o n is tic . In addition to presenting an alibi defense on behalf of his client, Guffey's c o u n se l attempted to elicit evidence, and argued, that Phifer had sent Gehrke and S m ith to assault or kill Rawson for failing to pay a drug debt. Further, Gehrke's c o u n se l argued that the nature of Rawson's wounds suggested the crime was one o f passion, implying that Guffey was the killer. Smith also introduced evidence in an attempt to suggest that Guffey might have committed the murder. A lth o u g h these theories were antagonistic to Guffy's defense, they were la rg e ly based on evidence presented by the prosecution as part of its case in chief a n d raised by argument. To the extent that Guffey's codefendants elicited e v id e n c e suggesting Guffey's direct involvement in the murder, Guffey does not e x p la in why this evidence would not have been admissible in a separate trial a g a i n s t him if the prosecution had decided to pursue a similar theory. Under these c irc u m sta n c e s, the fact that the defendants were tried jointly did not violate G u f f e y's rights to due process or a fair trial. (People v. Keenan (1988) 46 Cal.3d 4 7 8 , 500; People v. Morganti, supra, 43 Cal.App.4th at p. 675; see also People v. P in h o ls te r, supra, 1 Cal.4th at p. 933 ("a defendant's natural tendency to shift b la m e onto a codefendant is not in itself a sufficient ground for severance.").) (L o d g m e n t No. 6, People v. Gehrke, et al., D042984, slip op. at 41-44.) P e titio n e r argues that his federal due process rights were violated by the failure to sever h is trial, citing Zaffro v. United States, 506 U.S. 534, 539 (1993), and because his right to testify in his own behalf was circumscribed by the holding of the trial judge that the transcript of the f r e e talk would be turned over to the other defendants if he testified, citing Rock v. Arkansas, 4 8 3 U.S. 44, 51 (1987). The Court will address these two issues separately. a) Failure to sever trial T h e United States Supreme Court has observed that there is a heightened risk of prejudice w h e re defendants "are tried together in a complex case and they have markedly different degrees o f culpability." Zaffro v. United States, 506 U.S. 534, 539 (1993). The Zaffro Court was careful to note that such prejudice flows from the intrusion joint trials may have on the accused's e sta b lish e d federal Constitutional rights, such as introduction of evidence which is technically a d m is s ib le against only one co-defendant, or the unavailability of exculpatory evidence that -15-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

w o u ld otherwise be available if the defendant were tried alone. Id., citing Bruton v. United S tates , 391 U.S. 123 (1968), and Kotteakos v. United States, 328 U.S. 750 (1946). A s the appellate court correctly observed, the majority of the defenses presented by the v a r io u s defendants at Petitioner's trial were not antagonistic. The two defendants who

c o m m itte d the assault and murder took the position that they did not commit the crimes. B e c au s e Petitioner was accused of soliciting those two defendants, his own defense was b o ls te re d by the innocence defense of his co-defendants. Petitioner presented the additional d e f e n se that someone other than himself had solicited the assault on the victim. The appellate c o u rt recognized that there was a certain aspect of the defenses which were antagonistic to P e titio n e r. This included the fact that Gehrke argued that the nature of the wounds suggested a crime of passion, thereby implicating Petitioner due to the evidence that he was upset when h e found out about the relationship between the victim and his ex-girlfriend. In addition, Smith a tta c k ed Stark's credibility and argued that he did not fit the description of the men seen in the n e i g h b o r h o o d . However, the appellate court also correctly found that Petitioner had failed to e s ta b l ish that such evidence would have been inadmissible had he been tried separately. Because P e titio n e r has not established the violation of any federal Constitutional right flowing from the f a ilu re to sever the trials, he has failed to demonstrate that the state court's adjudication of this c la im was contrary to, or involved an unreasonable application of, clearly established federal la w . Zaffro, 506 U.S. at 539; Williams, 529 U.S. at 405-07. b) R ig h t to testify

P e titio n e r contends that the decision whether to testify at trial was circumscribed by the ru lin g of the trial judge that if he were to testify the transcript of his free talk would be provided to his co-defendants. As set forth above, the appellate court denied this claim, stating: H o w e v e r, it was not the joint trial, but instead the interview, that created the s itu a tio n of which Guffey now complains. Guffey could not, by making the d e c is io n to engage in a free-talk interview with police, thereby require the trial c o u rt to give him a separate trial that, by statute, is disfavored in a case such as th is one. For these reasons, we conclude that the fact of the joint trial did not v io late Guffey's rights to due process or a fair trial. (L o d g m e n t No. 6, People v. Gehrke, et al., D042984, slip op. at 42.) -16-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

T h e agreement reached between Petitioner, his counsel and the deputy District Attorney sta ted that the government as well as the other defendants could use any inconsistent statements m ad e during the free talk to impeach Petitioner if he testified. (Lodgment No. 1, Reporter's Tr. [ " R T " ] at 1587-88.) Petitioner's counsel argued extensively at trial that the free talk should not b e turned over to the other defendants if Petitioner testified. Counsel argued there was in f o rm a tio n in the free talk which had not yet come out at trial which was damaging to P e titio n e r, including information about events of which the other defendants were not aware, and su c h information would not constitute impeachment because Petitioner would not testify as to th o s e events. (RT 1589-90.) Petitioner has identified no clearly established federal law p ro te c tin g him from being cross-examined with prior inconsistent out-of-court statements which w e re freely given, such as the free talk here, or in protecting such statements from discovery. In fact, both the trial and appellate courts found that the free talk contained no material required to be turned over to the defense under Brady v. Maryland, 373 U.S. 83 (1963), or any in f o r m a tio n which would have assisted the other defendants in defending the charges against th e m . (Lodgment No. 6, People v. Gehrke, et al., D042984, slip op. at 19-20.) Petitioner has n o t attempted to challenge those findings, which are entitled to a presumption of correctness in th is Court. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts). The appellate court's adjudication of claim two was neither contrary to, nor involved an u n re a so n a b le application of, clearly established federal law, and was not based on an u n re a so n a b le determination of the facts. Accordingly, the Court recommends denying habeas re lie f with respect to claim two. D. P e titio n e r is not entitled to habeas relief as to claim three. P e titio n e r contends in claim three that the admission of out-of-court statements by cod e f en d a n t Smith to prosecution witness Phifer violated his right to confront and cross-examine w itn e s s e s . (Pet. at 5.) Specifically, Petitioner contended in the state appellate and supreme c o u rts that the admission of Phifer's testimony that after the killing, co-defendant Smith said "we o f f ed him man," indicating they killed the victim, which incriminated Petitioner by implication -17-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th ro u g h the use of the pronoun "we," and "I sent it on home with the old, the old timer," re f e rrin g to a knife Smith had which he called the old timer, indicating Smith stabbed the victim, c o n stitu te d Bruton/Aranda1 error. (Lodgment No. 8 at 28; Lodgment No. 7 at 16-18; Lodgment N o . 3 at 18-25.) Respondent contends that the adjudication of this claim by the state court was consistent w ith federal law and was a proper application of the rule in Bruton because Petitioner was not p re se n t when Smith made the statements and no reasonable jury would think that Smith was re f e rr in g to Petitioner. (Ans. Mem. at 23-25.) T h e Court will look through the silent denial of this claim by the state supreme court to th e appellate court opinion. The appellate court stated: P rio r to trial, Gehrke moved to sever his trial from those of his c o d e f e n d a n ts or to exclude Smith's statements to Phifer implicating him in R a w so n 's murder, arguing that the admission of those statements would violate h is constitutional rights of confrontation and cross-examination. Satisfied that the s ta te m e n t could be admitted as an adoptive admission, the court denied the motion to sever and allowed the statements to be introduced at trial. Gehrke argues that th e court erred in so doing, an argument in which Guffey joins. P u r s u a n t to the adoptive admissions exception to the hearsay rule, "[i]f a p e rso n is accused of having committed a crime, under circumstances which fairly a f fo rd him an opportunity to hear, understand, and to reply, and which do not lend th e m s e lv e s to an inference that he was relying on the constitutional right of silence g u a ra n tee d by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement a n d the fact of silence or equivocation may be offered as an implied or adoptive a d m i s s io n of guilt." (People v. Fauber (1992) 2 Cal.4th 792, 852, quoting People v . Preston (1973) 9 Cal.3d 308, 314.) The theory underlying this exception is that "th e natural reaction of an innocent man to an untrue accusation is to enter a p ro m p t denial" (People v. Simmons (1946) 28 Cal.2d 699, 712) and if the accused f a ils to act as an innocent person would be expected to in the face of an a c c u s a tio n , an inference of consciousness of guilt may properly be drawn th e re f ro m . (People v. Green (1952) 111 Cal.App.2d 794, 798.) T h e re are two requirements to satisfy the hearsay exception for adoptive a d m i s s io n s : the party must (1) have had knowledge of the content of the d e c la ra n t's statement, and (2) with such knowledge, have used words or conduct See Bruton v. United States, 391 U.S. 123, 135 (1968) (holding that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions [to assess the impact of a statement of a co-defendant as to that defendant only and not any other co-defendants] is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.") and People v. Aranda, 63 Cal.2d 518 (1965) (finding that admission of confession implicating co-defendant in joint trial resulted in miscarriage of justice notwithstanding jury instruction that the confession was admissible only against confessing defendant). -1807cv1620
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

i n d i c a t i n g his adoption of, or his belief in, the truth of such hearsay statement. (P e o p le . v. Combs, supra, 34 Cal.4th at p. 843, italics omitted; Evid.Code, §1221.) T h e trial court may admit the proffered evidence of an adoptive admission if the e v id e n c e supports a reasonable inference that these preliminary facts exist and th e n the jury must determine whether an adoptive admission was actually made. (P e o p le v. Edelbacher (1989) 47 Cal.3d 983, 1011.) G e h rk e argues that the adoptive admissions exception to the hearsay rule d o e s not apply here because there was no evidence establishing either that he was p re se n t at the time Smith admitted having killed Rawson or that he heard Smith m a k e that statement. However, in his police interview, Phifer indicated that G e h rk e and Smith came to his motel room together and that after Gehrke told him th e y needed to get out of town, Smith blurted out that they had "offed" Rawson. T h is evidence was sufficient to support an inference that Gehrke was present and ab le to hear Smith's statements and thus was sufficient to support the trial court's d e te rm in a tio n to submit the issue to the jury. G e h rk e also contends that Smith's statements did not constitute adoptive a d m i s s io n s by him because Smith's use of the word "we" was ambiguous and m ig h t not have referred to him, in which case he would have had no reason to o b je c t or to deny any involvement in the murder. Smith's choice of terminology, h o w ev er, goes to the weight rather than the admissibility of his statements. In lig h t of the evidence that Gehrke and Smith arrived at Phifer's motel room to g e th e r and were the only people talking to Phifer when Smith made the statem en ts and that Gehrke commented repeatedly that they "gotta git," the jury c o u ld reasonably conclude that Smith's use of the word "we" referred to Smith a n d Gehrke. F in a lly, Gehrke contends that Phifer was unreliable as a witness and thus P h if e r's statements could not support the trial court's decision to submit the p ro f f e re d evidence of the adoptive admission for the jury's consideration. N o tab ly, Gehrke cites no authority in support of this argument, which is u n p ersu asiv e in any event. "[T]he evidence as to the existence of the preliminary f a cts for admissibility of a declarant's hearsay statement against a party as the p a rty's adoptive admission need not convince the trial judge, by a preponderance o f the evidence, that such preliminary facts exist. The trial judge needs [only] to b e convinced . . . that the evidence is sufficient for a reasonable trier of fact to find th a t the preliminary facts exist. . . ." (People v. Pic'l (1981) 114 Cal.App.3d 824, 8 6 0 , disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 4 9 8 .) The trial court properly concluded that the evidence was sufficient to s u p p o rt the jury in finding that the requisite preliminary facts existed and that the ju ry could properly assess Phifer's credibility in determining whether Smith's s ta te m e n ts to Phifer constituted adoptive admissions by Gehrke. (L o d g m e n t No. 6, People v. Gehrke, et al., D042984, slip op. at 10-15.) " T h e Sixth Amendment's Confrontation Clause provides that, `(i)n all criminal p r o s e c u t io n s , the accused shall enjoy the right . . . to be confronted with the witnesses against h im .' We have held that this bedrock procedural guarantee applies to both federal and state p ro s e c u tio n s ." Crawford v. Washington, 541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380 U .S . 400, 406 (1965)). The confrontation clause "guarantees the defendant a face-to-face -19-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

m e e tin g with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 ( 1 9 8 8 ) . The physical confrontation "enhances the accuracy of factfinding by reducing the risk th a t a witness will wrongfully implicate an innocent person." Maryland v. Craig, 497 U.S. 836, 8 4 6 (1990). The introduction of prior testimonial statements of a witness violates a defendant's co n fro n tatio n rights unless the person who made the statements is unavailable to testify and there w a s a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. The Supreme Court in Bruton specifically left open the issue regarding whether the C o n f ro n ta tio n Clause would be offended by the admission of a co-defendant's statement which s a tis f ie d an exception to the hearsay rule, such as the adoptive admission exception relied upon b y the appellate court here. Bruton, 391 U.S. at 128 n.3 (stating that: "we intimate no view w h a ts o e v e r that such exceptions necessarily raise questions under the Confrontation Clause.") T h e appellate court here recognized (see Lodgment No. 6, People v. Gehrke, et al., No D042984 s lip op. at 11), that the Supreme Court revisited the issue it had left open in Bruton in White v. Illin o i s, 502 U.S. 346 (1992), where it held that admission of statements by a four-year old girl to her babysitter, her mother, a police officer, an emergency room nurse and a doctor, each of w h ich satisfy the "spontaneous exclamation" and "statements made for medical treatment' e x c ep tio n s to the hearsay rule, did not violate the Confrontation Clause even though the d ec laran t did not testify at trial and was not "unavailable," because the statements were n e c e s s a rily made under conditions "that provide substantial guarantees of their trustworthiness." Id . at 355-56. The Supreme Court has since abrogated that approach, at least with respect to " te stim o n ia l" statements, holding in Crawford that recorded testimonial statements cannot be a d m itte d at trial unless the declarant is unavailable to testify and the defendant had a prior o p p o rtu n ity to cross-examine the declarant about the statement. Crawford, 541 U.S. at 59. A lth o u g h Crawford stated that it "need not definitively resolve whether [White] survives [C raw fo rd ], " it is clear that, to the extent White survives, it should be limited to situations where th e statements were non-testimonial. Crawford, 541 U.S. 61. The Ninth Circuit has held, preC ra w f o rd , that the adoptive admission exception to the hearsay rule does not "automatically -20-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

s a tis f y the Confrontation Clause, at least where the third-party statements alleged to have been a d o p te d have probative value independent of the fact they may have been adopted by the d e f e n d a n t." United States v. Monks, 774 F.2d 945, 952 (9th Cir. 1985). The appellate court's finding that the introduction of Smith's admission did not violate th e Confrontation Clause because it was an adopted admission was neither contrary to nor in v o l v e d an unreasonable application of Bruton, because Bruton specifically declined to address th a t issue. The appellate court's decision did not involve an unreasonable application of C ra w f o rd because Smith's statement was non-testimonial, and Crawford does not recognize nonte s tim o n ia l statements as implicating the Confrontation Clause. Crawford, 541 U.S. at 68. To th e extent White survived Crawford, the appellate court's finding was neither contrary to nor in v o lv e d an unreasonable application of White because the statement fell within a firmly e s ta b lis h e d hearsay exception and was made under conditions which render it reliable. However, even to the extent that Petitioner could demonstrate that a Confrontation Clause v io la tio n occurred, or that the state court adjudication of his claim was objectively unreasonable, h e must also demonstrate that the error was not harmless in order to be entitled to federal habeas re lie f . "Confrontation Clause violations are subject to harmless error analysis, because `the C o n s titu tio n entitles a criminal defendant to a fair trial, not a perfect one.'" United States v. N ie ls e n , 371 F.3d 574, 581 (9th Cir. 2004), quoting Delaware v. Van Arsdall, 475 U.S. 673, 6 8 0 - 8 1 (1986)). "Evidence erroneously admitted in violation of the Confrontation Clause must b e shown harmless beyond a reasonable doubt, with courts considering the importance of the e v id e n c e, whether the evidence was cumulative, the presence of corroborating evidence, and the o v e ra ll strength of the prosecution's case." Id., quoting United States v. Bowman, 215 F.3d 951, 9 6 1 (9th Cir. 2000). Habeas relief in this Court is not available "unless the error resulted in `s u b s ta n tia l and injurious effect or influence in determining the jury's verdict,' . . . or unless the ju d g e `is in grave doubt' about the harmlessness of the error." Medina v. Hornung, 386 F.3d 8 7 2 , 877 (9th Cir. 2004), quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) and O'Neal v . McAninch, 513 U.S. 432, 436 (1995). "The relevant inquiry is whether the [error] actually h a rm e d the appellant." Medina, 386 F.3d at 877; see also Fry v. Pliler, 552 U.S. ___, 127 S.Ct. -21-

07cv1620

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2 3 2 1 , 2327 (2007) (holding that harmless error analysis is still required after a showing that the s ta te court opinion was contrary or involved an unreasonable application of clearly established f e d era l law because 2254(d) "sets forth a precondition to the grant of habeas relief . . ., not an en titlem en t to it.") Smith's statements were cumulative to other evidence that Smith and Gehrke killed the v ic tim , including the fact that a neighbor of the victim saw two men and a woman who looked o u t of place walking in the neighborhood shortly before the murder. Most notably, Stark was p r e s e n t during the killing and testified as to the actions of Gehrke and Smith. There was also e v id e n c e that Gehrke and Smith showed up unexpectedly at a friend's house shortly after the m u rde r where they requested permission to clean up, and thereafter called Petitioner. In determining whether the Confrontation Clause error in admitting Smith statements was h a rm le ss , the Court must consider "the importance of the evidence, whether the evidence was cu m u lativ e, the presence of corroborating evidence, and the overall strength of the prosecution's c a se ." Nielsen, 371 F.3d at 581. Respondent contends that Smith's admission was not important e vidence against Petitioner because Petitioner was not present when Smith made the remarks and it would have been impossible for a jury to think that Smith was talking about Petitioner when h e made the statements. (Ans. Mem. at 24.) Smith's statement merely supported a finding that S m ith and Gehrke killed the victim, and as such implicated Petitioner only in the sense that P e titio n e r was accused of hiring Gehrke to attack the victim. Smith's statement was cumulative to Stark's testimony and other evidence that Smith and Gehrke killed the victim, and Petitioner's g u ilt was corroborated not only by Stark's testimony but by