EDWARD M. CHEN, District Judge.
Kosal Kim Khek filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his murder conviction. Respondent has filed an answer to the petition and Mr. Khek has filed a traverse. For the reasons discussed below, the Court dismisses one claim as untimely filed and denies the other claim on the merits.
The California Court of Appeal described the facts of the crime:
Cal. Ct. App. Opinion, pp. 2-3 (alterations other than first bracketed material, and omissions, in original).
This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Santa Clara County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was `objectively unreasonable.'" Id. at 409.
Mr. Khek contends that his federal constitutional rights to compulsory process and due process were violated by the trial court's exclusion of "exculpatory evidence" that Robert DeJong (a fellow gang member) "had told the police that the plan was to hurt Nguyen, but not to kill him." Docket No. 1 at 9. Mr. Khek argues that the exclusion of the evidence interfered with his presentation of "relevant evidence demonstrating that he was not guilty of first degree murder," and was contrary to the Supreme Court's rulings that "technical evidentiary rules cannot be relied upon by trial courts to deny an accused citizen the opportunity to present legitimate exculpatory evidence." Id. at 9, 12 (citing Crane v. Kentucky, 476 U.S. 683 (1986), and Chambers v. Mississippi, 410 U.S. 284 (1973)).
The evidence in question consisted of statements made by Mr. DeJong to the police in an interview a week after the killing.
Cal. Ct. App. Opinion at 8-9 (alternations and omissions in original).
The California Court of Appeal rejected Mr. Khek's state law and federal constitutional challenges to the exclusion of the evidence. As to the state law claims, the California Court of Appeal concluded that Mr. DeJong's statement that the plan was only to hurt the victim was not admissible under the hearsay exception for declarations against penal interest. Whether the declaration against penal interest exception applies depends on the context in which the statement is made, and the "trial court could have rationally concluded that DeJong's statements were exculpatory or self-serving and untrustworthy because DeJong lied to the police and, when caught in the lie, sought to minimize his culpability by posing an assault-gone-awry scenario." Id. at 11-12. The trial court's exercise of its discretion was "entirely consistent with the case law for determining the declaration-against-interest exception to the hearsay rule." Id. at 12.
The California Court of Appeal also determined that Mr. Khek's constitutional claims were "without merit." Id. at 12. The evidence had been determined to be unreliable by the trial court, and its exclusion pursuant to the application of ordinary rules of evidence did not violate Mr. Khek's right to present a defense or his right to due process. Id. at 12. Chambers did not help Mr. Khek because in Chambers, "the court overturned a state court's application of its hearsay rule because it excluded evidence made under circumstances that provided considerable assurance of the evidence's reliability. . . . Here, defendants cannot complain of a denial of due process because the hearsay evidence they sought to introduce was unreliable." Cal. Ct. App. Opinion, at 12-13 (citing Chambers v. Mississippi, 410 U.S. at 298-302).
The U.S. Constitution gives a criminal defendant the right to present a defense. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). The Compulsory Process Clause of the Sixth Amendment preserves the right of a defendant in a criminal trial to have compulsory process for obtaining a favorable witness. Washington v. Texas, 388 U.S. 14, 19 (1967). The Sixth Amendment right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (right to compulsory process is not absolute); cf. Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (plurality opinion) (defendant "`does not have an unfettered right to offer [evidence] that is incompetent, privileged or otherwise inadmissible under standard rules of evidence'"; the exclusion of evidence does not violate the Due Process Clause unless it offends some "fundamental principle of justice"). Even if the exclusion of evidence was a constitutional error, habeas relief is not available unless the erroneous exclusion had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
When crucial defense evidence that bears "persuasive assurances of trustworthiness and thus [is] well within the basic rationale of the exception for declarations against interest," "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. at 302.
Mr. Khek's other cited case, Crane v. Kentucky, 476 U.S. 683 (1986), also does not support relief for him. In Crane, the Supreme Court held that the defendant's constitutional right to present a defense was violated where the state court excluded evidence using a rigid state procedural rule to exclude evidence essential to the defense. There, Kentucky had a rule that a pretrial determination that a confession was voluntary was conclusive and could not be relitigated at trial. Id. at 686-87. The trial court had applied this rule to exclude evidence about the circumstances of the defendant's confession where the defense wanted to present the evidence to undermine the credibility of that confession. The Supreme Court explained that the state court wrongly assumed that "evidence bearing on the voluntariness of a confession and evidence bearing on its credibility fall in conceptually distinct and mutually exclusive categories." Id. at 687. Contrary to the state court's assumption, the same evidence about the "manner in which a statement was extracted" may be relevant to both the legal question (for the judge) of the statement's voluntariness, as well as the "ultimate factual issue" (for the jury) of the defendant's guilt. Id. at 688-89. The State's "blanket exclusion of the proffered testimony about the circumstances of petitioner's confession deprived him of a fair trial," by excluding "competent reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence" and without any countervailing valid state justification for its exclusion. See id. at 690.
Here, there was no comparable error. Mr. DeJong's statements about the plan to hurt the victim were not excluded by rigid use of an unrelated procedural rule, and instead were excluded with a straightforward application of the hearsay rule and the declaration against interest exception thereto. Moreover, unlike the situation in Crane, the evidence being offered was not trustworthy evidence and instead was evidence determined by the state court to be lacking in trustworthiness because it was exculpatory in the context made. That is, Mr. DeJong did not state that they had only intended to hurt the victim until the police laid out for him that they already knew what had happened and that he was involved. Crane did not question "the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted." Id. at 690. California's application of the hearsay rule and the declaration against interest exception to it are not called into question by Crane.
Further, even if there had been a violation of the right to present a defense, any such error would have been harmless. The instant messages exchanged between Mr. Khek and the other gang members before and after the attack plainly revealed an intent to kill and undermined the idea that this was intended only to be an assault on Anthony.
The California Court of Appeal's rejection of Mr. Khek's constitutional claims regarding the exclusion of Mr. DeJong's statements that the plan was to only hurt the victim was not contrary to or an unreasonable application of clearly established federal law, as set forth by the U.S. Supreme Court.
Mr. Khek argues that the trial court violated his right to due process in allowing the prosecutor to introduce evidence of Robert DeJong's statement to the police regarding Mr. DeJong's drive to the Q-Cup and Mr. DeJong's conduct before and during the stabbing.
At trial, the parties stipulated to the admission of a portion of a statement Mr. DeJong made to the police during the course of the investigation, subject to Mr. Khek's objections. They preserved for appeal Mr. Khek's objections that the admission of the evidence violated his Sixth Amendment rights and that the stipulated statement did not represent the totality of Mr. DeJong's statement to the police. See RT 2397-98, RT 2406-07. The stipulated statement eliminated references to Mr. Khek that were in the original version of Mr. DeJong's statement to police, "such as, `I went to [Khek's] house. It was me and [Khek],' `We were driving to Q-Cup,' `We drove back around and we saw him,' `then he ran out of the car,' `and . . . three times he stuck him,' and `then I took him back home.'" Cal. Ct. App. Opinion at 13 (alterations and omission in original).
The prosecutor read the following stipulation of DeJong's statement to the jury:
RT 2654-55.
On appeal, Mr. Khek contended that the admission of the stipulated statement violated Mr. Khek's Sixth Amendment right to confront Mr. DeJong.
Cal. Ct. App. Opinion, at 14-15 (alternations in original).
The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with witnesses against him." U.S. Const. amend. VI. The ultimate goal of the Confrontation Clause "is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at 61.
The Confrontation Clause applies to all "testimonial" statements. See Crawford, 541 U.S. at 50-51. "Testimony . . . is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (internal quotation marks and brackets omitted); see id. at 51 ("An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."); id. at 68 ("[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations"). In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court distinguished testimonial and non-testimonial statements to police. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 822; see, e.g., id. at 826-28 (victim's frantic statements to a 911 operator naming her assailant who had just hurt her were not testimonial); id. at 829-30 (victim's statements to officer telling him what had happened were testimonial, as there was no emergency in progress and were made after police officer had separated victim and assailant); Crawford, 541 U.S. at 39-40, 68 (statements were testimonial where made by witness at police station to a series of questions posed by an officer who had given Miranda warnings to witness and was taping and making notes of the answers).
Mr. DeJong's statement to the police during an interview at the police station days after the stabbing plainly was "testimonial" because it was "`made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Crawford, 541 U.S. at 52. Mr. DeJong's statement fit squarely within Crawford's definition of testimonial statements. See Davis, 547 U.S. at 829-30 (victim's statements to officer telling him what had happened were testimonial, as there was no emergency in progress and were made after police officer had separated victim and assailant); Crawford, 541 U.S. at 39-40, 68 (statements made by witness at police station after witness was given Miranda warnings were testimonial). There was no ongoing emergency at the time of the statement.
The California Court of Appeal's Confrontation Clause analysis was an unreasonable application of Crawford and Bruton v. United States, 391 U.S. 123 (1968). The California Court of Appeal reasoned that Mr. DeJong's statement was not offered against Mr. Khek and therefore did not implicate Mr. Khek's Confrontation Clause rights. The California Court of Appeal reached that conclusion by mistakenly failing to distinguish statements made by a codefendant on trial with a defendant from a statement made by a coperpetrator/codefendant not on trial with a defendant. First, the state appellate court relied on a California Supreme Court case for the proposition that the Confrontation Clause is "implicated only to the extent an out-of-court statement is admitted against [a] defendant." Cal. Ct. App. Opinion at 14 (quoting People v. Lewis, 43 Cal.4th at 506 (internal quotation marks omitted)). The cited case (Lewis), however, noted that a statement is not admitted against a defendant when the jury has been instructed that the statement does not apply to this defendant. Here, Mr. Khek's jury was not instructed that Mr. DeJong's statement was not to be considered against Mr. Khek. The California Court of Appeal incorrectly determined that the statement was not evidence against Mr. Khek subject to the protections of the Confrontation Clause. Given that Mr. DeJong was not on trial, there was no reason to admit his statement other than to be evidence against Messrs. Khek and Lee. Mr. DeJong's statements were relevant to show that Mr. Khek was lying in wait, and the prosecutor so argued.
Second, the California Court of Appeal erroneously relied on the Bruton line of cases to determine that the redaction of Mr. DeJong's statement to remove reference to Mr. Khek made the statement admissible. Cal. Ct. App. Opinion, p. 14. This was erroneous because Bruton does not apply when the codefendant whose statement is redacted is tried separately. United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007 (en banc). The Bruton line of cases simply did not apply to Mr. DeJong's statement because Mr. DeJong was not on trial with Mr. Khek. The Bruton line of cases concerns admission of a confession from a nontestifying codefendant at a joint trial for use against the nontestifying codefendant, and the jury's ability to follow instructions not to consider the evidence against the other defendant. See, e.g., Bruton, 391 U.S. at 124 (admission of codefendant's confession where petitioner and codefendant were on trial together); id. at 137 ("Despite the concededly clear instructions to the jury to disregard [codefendant's] inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination").
Here, Mr. DeJong's case had been severed, and he was not on trial with Messrs. Lee and Khek. See CT 2214. Since Mr. DeJong was not on trial, there was no reason to admit his statement other than to be evidence against Messrs. Khek and Lee. The state appellate court's determination that Mr. DeJong's statement was not against Mr. Khek was erroneous. The reliance on Bruton was unreasonable for the further reason that, unlike the situation in Bruton, there was no limiting instruction that the evidence could not be used against Mr. Khek. The state appellate court's extension of the Bruton line of cases to the admission of a statement from a person who was involved in the crime but was not on trial with Mr. Khek was an objectively unreasonable application of the Bruton line of cases. See Williams v. Taylor, 529 U.S. 362, 408 (2000) (O'Connor, J.) (state court decision that "unreasonably extend[s] a legal principle from our precedent to a new context where it should not apply" may be an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1)). Because the California Court of Appeal's rejection of the Confrontation Clause claim was an "unreasonable application of clearly established Federal law, as determined by the United States Supreme Court," habeas relief is not barred by 28 U.S.C. § 2254(d)(1).
Determining that habeas relief is not barred by § 2254(d)(1) does not end the matter, because the court must still determine whether the error was harmless. For purposes of federal habeas corpus review, the standard applicable to violations of the Confrontation Clause is whether the admission of the evidence "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002) (Brecht test applies to Confrontation Clause violations).
The Confrontation Clause violation did not have a substantial and injurious effect or influence in determining the jury's verdict against Mr. Khek. Interestingly, it was the fact that the statement had been redacted that helped make its admission harmless. The version of Mr. DeJong's statement that the jury heard had no references to Mr. Khek. Instead, the statement was facially neutral to Mr. Khek and described only Mr. DeJong's actions without reference to anyone else who may have been present. The method of redaction did not even suggest there was someone with Mr. DeJong. Thus, for example, the jury heard that "DeJong drove to the Q-Cup retail center," rather than that DeJong drove Mr. Khek to the Q-Cup retail center.
At trial, there was no real dispute about the identity of the assailant or the cause of the victim's death. Instead, the key question was whether Mr. Khek intended to kill the victim when he stabbed him. Mr. Khek's closing argument conceded that there was enough evidence for a second degree murder conviction and urged the jury to focus on whether there was enough evidence to find that the murder was first degree murder. See RT 2985 (Mr. Khek's attorney argues: "It pains me to say this. Kosal Khek is guilty of second degree murder."). Defense counsel argued that the damning instant messages were tough talk between teens trying to fit into the gang, and that there were conflicting inferences that could be drawn from some of the evidence. In light of the evidence at trial, it was an uphill fight for counsel. Most notably, the instant messages Mr. Khek exchanged with Mr. Lee and some other acquaintances were very bad for the defense. Some instant messages indicated a plan to hurt rather than kill in retaliation for the attack on a person affiliated with Mr. Khek's gang, but other instant messages plainly contained Mr. Khek's statement that he was going to kill Anthony. Most notably, Mr. Khek sent an instant message on the day before the killing, stating, "`That bitch is going to fuckin' die,'" and sent an instant message just hours before the killing asking another gang member, "`do you want to go kill a kid with me?'" RT 2209, 2233. The stipulated statement of Mr. DeJong that was admitted did not mention anything about Mr. Khek's intent, and that strongly indicates its admission was harmless.
Mr. Khek points out that, even if Mr. DeJong's statement looked facially neutral, the prosecutor argued that the jury should infer that Mr. DeJong was the driver who took Mr. Khek to the site and waited while he attacked the victim. Although true, this does not show the admission of this evidence was not harmless error. Mr. Khek did not contend that he was not the person who stabbed Anthony and instead presented a defense that the stabbing was intended to hurt rather than kill Anthony. Connecting Mr. DeJong's activity to the stabbing committed by Mr. Khek did nothing to show whether Mr. Khek intended to kill or only to injure when he stabbed the victim. Mr. DeJong's statement was as consistent with a stabbing done with the intent to injure as with a stabbing done with the intent to kill.
The admission of Mr. DeJong's statement also did not have a substantial and injurious effect on the verdict with regard to the prosecutor's alternate theory that Mr. Khek had committed first degree murder by lying in wait.
The prosecutor relied on the testimony of Phong Nguyen and Kim Huynh to support his argument that the jury could find that Mr. Khek committed first degree murder by lying in wait. See RT 2886 (Lying in wait is "a term of art. It was a surprise. . . . None of the witnesses actually saw the weapon. Nothing about how the male who walked up to Anthony gave anyone any clue he was about to be killed. There weren't any angry words. There wasn't any kind of aggressive posturing, posing, stuff like that. He only asked him if he was Anthony. He said yes. And he began the attack and fled."); RT 2888 (absence of defensive wounds on Anthony's arms suggested he did not have enough time to protect himself); RT 2887 (Phong's testimony that he "had seen the attacker earlier walking through the parking lot. This is [an] important fact relevant to lying in wait."). The prosecutor also argued at length that Mr. Khek was guilty on a deliberate and premeditated murder theory. See RT 2908-2925. Mr. DeJong's name was not even mentioned until 50 pages into the closing argument (at RT 2931), when the prosecutor returned to the lying-in-wait theory. The prosecutor again relied primarily on the testimony of Phong Nguyen and Kim Huynh for the details of the attack, and relied on the testimony of Phong Nguyen who saw Mr. Khek in the parking lot about 20 minutes before the stabbing. RT 2934, 2936. The prosecutor further argued that the evidence supported an inference that Mr. DeJong drove Mr. Khek to the location where Phong saw him about 20 minutes before the stabbing, RT 2934-35, and that Mr. DeJong drove Mr. Khek back to the apartment where they met up with Mr. Lee, RT 2936. The prosecutor also once again returned to arguing that Messrs. Khek and Lee were liable for a deliberate and premeditated first degree murder; Mr. DeJong's transportation of Mr. Khek to the stabbing was mentioned but was not the centerpiece of the argument, RT 2940-46. The prosecutor relied much more on the instant messages, the eyewitness testimony, and the retaliatory motive. Id. With the abundance of instant messages and the eyewitness testimony available, the DeJong statement was not essential to the prosecutor's closing argument.
The length of jury deliberation may be examined when assessing harmlessness. "`Longer jury deliberations weigh against a finding of harmless error because lengthy deliberations suggest a difficult case.'" United States v. Lopez, 500 F.3d 840, 846 (9th Cir. 2007) (quoting United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001)); see, e.g., id. at 846 (jury's deliberation for 2-1/2 hours on illegal reentry case suggested any error in allowing testimony or commentary on defendant's post-arrest silence was harmless); Velarde-Gomez, 269 F.3d at 1036 (jury deliberation for 4 days supported inference that impermissible evidence affected deliberations). The deliberations in Mr. Khek's case were remarkably short. After a 30-day trial, the jury took just four hours (including a one-hour lunch break) to reach a verdict. CT 2590. The brevity of deliberations provides a further strong indicator that the admission of Mr. DeJong's statement was harmless.
Mr. Khek is not entitled to the writ on his Confrontation Clause claim. Although there was a Confrontation Clause violation, the error did not have a substantial and injurious effect on the jury's verdict.
Mr. Khek contends that his rights to trial by an impartial jury and due process were violated due to juror misconduct. He alleges that, although two jurors were dismissed for two incidents of juror misconduct, other jurors were tainted and that deprived him of an impartial jury. Specifically, he argues that Juror Nos. 4, 6, 8, 9 and 10 had concerns. See Docket No. 1 at 19; Docket No. 29 at 9-10.
In a nutshell, Juror No. 10 reported to the court that (a) she saw codefendant Mr. Lee make a gun-like gesture with his hand toward the jurors, and (b) several jurors observed a child holding a cell phone in a way that made them think he was taking pictures of them. The court held a lengthy hearing, at which the evidence showed that (a) only Juror No. 10 had seen the alleged gun-like gesture, although she had mentioned to several other jurors that she had seen it and tried to solicit their support in presenting the issue to the judge, and (b) no juror had been photographed because the child with the phone was the victim's 11-year old brother playing with a cell phone that had no camera or picture-taking abilities. The trial judge excused Juror No. 10 and Alternate Juror No. 3, but denied the defense motion for a mistrial.
The California Court of Appeal gave a detailed explanation of the relevant events that began with a note from the jury on the 26th day of a 30-day trial.
Cal. Ct. App. Opinion, at 18-22.
The California Court of Appeal rejected Mr. Khek's claim that the denial of his mistrial motion violated his state and federal rights to trial by an impartial jury. The court explained that "none of the deciding members of the jury saw Lee's gesture. The communicative content of the gesture was not about guilt or innocence. And the jurors' discussions about the gesture were about the gesture, not the facts of the case. The presumption of prejudice simply did not arise in this case." Cal. Ct. App. Opinion, at 24. And, even if the presumption did arise, it was "rebutted by evidence that no prejudice actually occurred." Id.
Cal. Ct. App. Opinion, at 24-25 (alteration in original).
The California Court of Appeal also determined that the cell phone incident did not warrant relief. That incident was "more accurately characterized as spectator misconduct," and did not warrant relief because prejudice is not presumed and none was shown. Id. at 25.
Id. at 26.
The Sixth Amendment guarantees the criminally accused the right to a fair trial by a panel of impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). The jury's verdict "`must be based upon the evidence developed at the trial.'" Turner v. Louisiana, 379 U.S. 466, 472 (1965). "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-73. Juror exposure to extraneous influences is considered juror misconduct, even when the exposure is not the juror's fault.
The "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d), regarding juror misconduct based on extrinsic influences comes from three Supreme Court cases: Mattox v. United States, 146 U.S. 140 (1892), Remmer v. United States, 347 U.S. 227 (1954), and Smith v. Phillips, 455 U.S. 209, 217 (1982). In Mattox, the Supreme Court articulated the rule: "Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox, 146 U.S. at 150. Remmer later restated the rule and elaborated on the presumption of prejudice:
Remmer, 347 U.S. at 229.
The Smith case focused on the procedural steps the trial court must take when potential juror misconduct arises. The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith, 455 U.S. at 217. "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Id. The trial judge can "`determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate.'" Id. at 216 (quoting Remmer, 347 U.S. at 230) (alterations in original). The trial judge may ascertain the impartiality of the juror "by relying solely upon the testimony of the juror in question." Id. at 215; see also id. at 217 n.7 (rejecting the argument that the evidence from the juror in question "is inherently suspect").
The California Court of Appeal's rejection of Mr. Khek's juror misconduct claim was not contrary to or an unreasonable application of any holding from the U.S. Supreme Court. Mr. Khek identifies no Supreme Court precedent for his contention that a presumption of prejudice arises with regard to jurors who did not observe the alleged communicative gesture. Remmer does not state that a presumption of prejudice arises for the entire jury whenever one juror is exposed to a private communication, contact or tampering. Such a finding would require an extension of Remmer; under AEDPA, a state court's failure to extend a Supreme Court precedent is not an unreasonable application for purposes of § 2254(d)(1). See White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
Although a presumption of prejudice may have arisen for Juror No. 10 because she believed that she saw codefendant Mr. Lee make a gun gesture, that does not help Mr. Khek because Juror No. 10 was dismissed from the jury.
Even if Juror No. 10's discussion of his her observation with other jurors were sufficient to give rise to a presumption of prejudice, the California Court of Appeal also determined that any such presumption was rebutted by evidence that no prejudice actually occurred. This also was not contrary to or an unreasonable application of Supreme Court precedent.
The hearing held in Mr. Khek's case adhered to the procedure suggested in Smith v. Phillips, determining what happened, and the impact thereof upon the jurors, and the prejudicial effect (if any) of the circumstances "in a hearing with all interested parties permitted to participate." Smith, 455 U.S. at 217. In Mr. Khek's case, the trial court held a hearing that took about a day and a half, during which the jurors (including alternates) were questioned individually by the judge, prosecutor and defense counsel. See RT 2410-2629; CT 2521-25 (7/26/10 minutes), 2526-27 (7/27/10 minutes), CT 2541 (7/28/10 minutes). The judge announced his decision at the end of the hearing, and explained his reasoning the next day. RT 2628, 2636-43.
Mr. Khek disagrees with the state court's conclusion that the jurors who remained were not affected by the alleged gun gesture and the alleged picture-taking. Specifically, he urges that Juror Nos. 4, 6, 8, and 9 were not the impartial jurors to which he was entitled. See Docket No. 1 at 19; Docket No. 29 at 9-10. According to Mr. Khek, Juror Nos. 4 and 6 "acknowledged being `uncomfortable' about the possibility that [the child] might have taken pictures of jurors with his cell phone," Docket No. 1 at 19; Juror No. 8 "began scrutinizing codefendant Lee's courtroom behavior more carefully," id.; and Juror No. 9 "acknowledged being a `little concerned,'" id. A review of these jurors' responses shows Mr. Khek's argument to be unpersuasive.
RT 2583.
Juror No. 4 may have had a brief moment of concern when she wondered if she should feel threatened, but her responses overall showed that she was unaffected by the incidents and remained able to function as an impartial juror. Her transient moment of concern did not show her to be unable to be an impartial juror.
Mr. Khek erroneously states that this juror felt uncomfortable about the possibility of the boy taking pictures. Instead, what the juror said was that she felt that the social situation of being a juror in a hallway with families and witnesses in a murder case was an uncomfortable setting. Juror No. 6's awareness of a socially awkward situation does not reasonably call into question her impartiality.
RT 2550-51. The juror was further questioned on this point by Mr. Khek's attorney (Mr. Johnson) and by Mr. Lee's attorney (Mr. Pointer):
RT 2554-55.
Juror No. 8 agreed that she could do her juror duties, would decide the case solely on the evidence heard in court, and would compartmentalize and set aside the information she heard from Juror No. 10. RT 2552. She confirmed that what had occurred did not affect her "evaluation of the presumption of innocence afforded to Mr. Lee and Mr. Khek and [her] responsibilities on the proof beyond a reasonable doubt." RT 2552.
Mr. Khek claims that lack of impartiality is shown by the fact that Juror No. 8 took greater notice of Mr. Lee. Merely taking greater notice of a defendant did not show that she was not an impartial juror, particularly since she observed nothing troubling to her. After looking at Mr. Lee, Juror No. 8 came to the conclusion that he was merely a fidgety person and one who used his hands a lot. These observations did not impede her abilities to do her juror duties.
RT 2525-26. Juror No. 9 clearly conveyed that his lack of opinion about the incidents stemmed from him not knowing what actually happened. See RT 2525-26. Juror No. 9 agreed that what had happened would not compromise his ability to follow the law or spill over against Mr. Khek. RT 2526.
Juror No. 9 also stated that, when Alternate Juror No. 3 told him and another juror what was going on after lunch that day, Alternate Juror No. 3 said, "well, if anything happens my friends or my cousin is a probation officer — I don't know, something. His brother is a policeman." RT 2528. When Juror No. 9 heard that, "`[i]t just kind of seemed out of the ordinary to me. Like I didn't think anything of it until it was mentioned. And I had a moment of concern like, well, what does this mean for the rest of the case but that was it." RT 2528. He also stated he was "a little surprised" by what Alternate Juror No. 3 said; "I didn't see anything like that, so I didn't really know what to think." RT 2529. Juror No. 9 agreed that what he had heard in the hallway and outside of court was not evidence and he could keep it separate from his juror duties. RT 2529.
Juror No. 9 thus was shown to have feelings of concern when he heard the incidents mentioned during that day, including when Alternate No. 3 suggested he had friends in law enforcement to turn to for protection. But Juror No. 9 also confirmed that none of the information compromised his ability to decide the case based solely on the evidence. He further agreed that he understood that the information he heard was not evidence and could keep it separate from his juror duties. Mr. Khek has not shown that Juror No. 9 was not an impartial juror.
The trial judge, who was in a good position to observe the demeanor of the jurors as they responded to questioning, made factual findings that the jurors' responses and demeanors showed an honest understanding of the law, an honest understanding of their responsibility as jurors, and a willingness to set aside the information that had been received. RT 2637-41, 2643. The trial court found "no concern or basis ultimately to cause excusal of any of the rest of the jurors" other than Juror No. 10 and Alternate Juror No. 3. RT 2643. Mr. Khek has not overcome the presumption of correctness that attaches to those factual findings. See Hedlund v. Ryan, 750 F.3d 793, 807 (9th Cir. 2014) (in a § 2254 proceeding, the state trial judge's findings regarding juror bias or misconduct are "`presumptively correct' and cannot be overcome without clear and convincing evidence"). Although there was some concern expressed, none of the jurors expressed any reluctance to continue to serve as a juror or inability to properly discharge his or her juror duties. As the Ninth Circuit recently observed, there is no "per se rule in which exposure to any out-of-trial information automatically requires juror dismissal. Such an approach is plainly inconsistent with Mattox and its progeny." Zapien v. Martel, 805 F.3d 862, 873 (9th Cir. 2015) (denying habeas relief where state court rejected juror misconduct claim after trial court held a hearing at which judge questioned juror who admitted to hearing a news report that suggested the defendant would hurt his guards if he were given the death penalty, and ruled the juror was capable of being impartial). As in Zapien, the state appellate court's determination that "the trial court properly determined the juror[s] could be impartial" was "in substance" an application of the Mattox/Remmer presumption which requires the federal habeas court to be "doubly deferential." Zapien, 805 F.3d at 873. Also as in Zapien, the state appellate court's "decision was at least reasonable," and therefore does not support federal habeas relief.
Even if there was a constitutional error in not declaring a mistrial due to juror misconduct, federal habeas would not be available if it was harmless. The receipt of extrinsic evidence or extraneous information by jurors is "generally subject to a `harmless error' analysis, namely, whether the error had [a] `substantial and injurious' effect or influence in determining the jury's verdict." Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008); see Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). Although the Remmer presumption and the Brecht test do not fit together comfortably, both must be applied. See generally Barnes v. Joyner, 751 F.3d 229, 252-53 (4th Cir. 2014) (remanding to district court for application of Brecht test, after concluding that the state court's adjudication of the juror misconduct claim was an unreasonable application of Remmer).
Habeas relief is not available on the juror misconduct claim in this case because Mr. Khek has not shown that the constitutional error had a substantial and injurious effect or influence on the jury's verdict.
First, there was substantial evidence of Mr. Khek's guilt. As mentioned in the harmless error analysis in the Confrontation Clause section, i.e., section B.2 above, there were the extremely damaging instant messages in which he announced his intent to kill Anthony and there was eyewitness testimony that he did in fact kill Anthony in a surprise attack.
Second, the incidents were brief and became known to most jurors at least several days before jury deliberations began — i.e., Juror No. 10 sent the note to the court on the 26th day of trial, and the deliberations did not begin until the 30th day of trial. The other jurors had learned of the alleged gun gesture and picture-taking that day, or during the preceding week. The juror misconduct that occurred days before deliberations began, and as to which the court was able to provide admonishments to the jurors, was less likely to have any impact on the jury's verdict. See generally Henry, 720 F.3d at 1086 ("The Supreme Court, for instance, has found juror misconduct to warrant reversal in cases involving extended external influences on jurors or confirmed juror bias — neither of which is present here").
Third, the jury deliberated only about four hours before returning a verdict in this 30-day trial, suggesting this was not a close case. See United States v. Lopez, 500 F.3d at 846 ("`Longer jury deliberations weigh against a finding of harmless error because lengthy deliberations suggest a difficult case.'").
Mr. Khek has not shown that any error in not declaring a mistrial due to juror misconduct had a "substantial and injurious effect or influence in determining the jury's verdict," Brecht, 507 U.S. at 637. Mr. Khek therefore is not entitled to federal habeas relief on his juror misconduct claim.
The presence of an actually biased juror would violate the Sixth Amendment's right to an impartial jury and would support habeas relief. Actual bias in a juror has been defined as "`the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.' Actual bias is typically found when a prospective juror states that he can not be impartial, or expresses a view adverse to one party's position and responds equivocally as to whether he could be fair and impartial despite that view." Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc) (citations omitted) (rejecting claim of actual bias in juror who said he put aside the fact that his wife was the victim of a similar assault and represented that he was impartial). "It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court." Irvin v. Dodd, 366 U.S. 717, 723 (1961) (defendant was denied a trial by an impartial jury as a result of extensive adverse pretrial publicity). Implied bias (e.g., bias that may be presumed from a juror who repeatedly lies during voir dire or a juror who is closely related to a litigant) would not support habeas relief because the "Supreme Court has never explicitly adopted or rejected the doctrine of implied bias." See Hedlund, 750 F.3d at 808. Unlike juror misconduct, the presence of an actually biased juror is structural error, requiring a new trial without a need to show prejudice under Brecht. See Smith v. Swarthout, 742 F.3d 885, 892 n.2 (9th Cir. 2014).
For the same reasons discussed in the juror misconduct section above, the Court concludes that Mr. Khek has not shown juror bias in any of the jurors who remained on the jury that deliberated. Juror Nos. 4, 6, 8 and 9 expressed some limited concerns, but Mr. Khek falls far short of showing that any of them had a state of mind that leads to an inference that any of them would not act with impartiality in considering this case. In addition to their words, these jurors' inflection, tone and demeanor are the sort of factors that go into the trial judge's determination of their impartiality and ability to serve as jurors. The presumption of correctness under 28 U.S.C. § 2254(e)(1) in the trial court's determination that the remaining jurors were not actually biased has not been overcome by Mr. Khek. See Hedlund, 750 F.3d at 807 (in a § 2254 proceeding, the state trial judge's findings regarding juror bias or misconduct are "`presumptively correct' and cannot be overcome without clear and convincing evidence"); cf. Skilling v. United States, 561 U.S. 358, 395-96 (2010) (in reviewing claims that the trial court failed to dismiss a juror for actual bias during voir dire, "the deference due to district courts is at its pinnacle.") It was not an unreasonable application of Supreme Court precedent for the California Court of Appeal to conclude that Mr. Khek had not shown actual bias by any of the jurors who remained on the jury that decided his case.
Mr. Khek cannot obtain relief on his claim that he was denied a trial by an impartial jury because he has not met his burden to show that the California Court of Appeal's rejection of his jury misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011) (discussing the very restrictive nature of § 2254(d)).
Mr. Khek contends that the admission of a photo of the dead victim's body at the crime scene violated his right to due process. The photo was objectionable, in Mr. Khek's view, because it depicted the abdominal wound with several inches of intestines protruding from the victim's abdomen where he had been stabbed.
The admissibility of several photos was considered outside the presence of the jury. The prosecution wanted to introduce several photos from the crime scene and the autopsy. Defense counsel objected to several photographs as being unduly prejudicial in that they were "gruesome." RT 602. After hearing arguments and studying the packet of photos, the court determined the photos were relevant. The trial court acknowledged that the photos were "gruesome," but also recognized that they accurately represented the crime scene and were relevant to several issues, including intent, malice, premeditation and deliberation. RT 619-20. The trial court applied California Evidence Code § 352, choosing to admit just one photo from the crime scene to show the result of the abdominal wound while excluding other photos as cumulative or unduly prejudicial relative to their probative value.
The California Court of Appeal rejected the challenge to the admission of the photo of the victim with his intestines protruding from the abdominal knife wound. The appellate court only discussed the admission of the evidence under California Evidence Code section 352 and did not discuss the claim that the admission of the evidence violated Mr. Khek's federal right to due process. Because the federal constitutional claim was rejected by the state appellate court without explanation, this Court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington v. Richter, 562 U.S. 86, 102 (2011).
The United States Supreme Court has never held that the introduction of propensity or other allegedly prejudicial evidence violates due process. See Estelle v. McGuire, 502 U.S. 62, 68-70 (1991); id. at 75 n.5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime").
In Estelle v. McGuire, the defendant was on trial for murder of his infant daughter after she was brought to a hospital and died from numerous injuries suggestive of recent child abuse. Defendant told police the injuries were accidental. Evidence was admitted at trial that the coroner discovered during the autopsy older partially healed injuries that had occurred six to seven weeks before the child's death. Id. at 65. Evidence of the older injuries was introduced to prove "battered child syndrome," which "exists when a child has sustained repeated and/or serious injuries by nonaccidental means." Id. at 66. The state appellate court had held that the proof of prior injuries tending to establish battered child syndrome was proper under California law. Id. In federal habeas proceedings, the Ninth Circuit found a due process violation based in part on its determination that the evidence was improperly admitted under state law. Id. at 66-67. The U.S. Supreme Court first held that the Ninth Circuit had erred in inquiring whether the evidence was properly admitted under state law because "`federal habeas corpus relief does not lie for errors of state law.'" Id. at 67. The Supreme Court then explained:
Estelle v. McGuire, 502 U.S. at 70 (omission in original).
The cited case, Spencer v. Texas, 385 U.S. at 563, held that the admission of evidence of prior convictions did not violate due process. The Supreme Court explained in Spencer that, although there may have been other, perhaps better, ways to adjudicate the existence of prior convictions (e.g., a separate trial on the priors after the trial on the current substantive offense resulted in a guilty verdict), Texas' use of prior crimes evidence in a "one-stage recidivist trial" did not violate due process. Id. at 563-64. "In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases." Id. at 564.
Estelle v. McGuire also cited to Lisenba v. California, 314 U.S. 219, 228 (1941), in support of the conclusion that the introduction of the battered child syndrome evidence did not so infuse the trial with unfairness as to deny due process of law. See Estelle v. McGuire, 502 U.S. at 75. In Lisenba, the Supreme Court rejected a claim that the admission of inflammatory evidence violated the defendant's due process rights. The evidence at issue in Lisenba was live rattlesnakes and testimony about them to show they had been used by the defendant to murder his wife. "We do not sit to review state court action on questions of the propriety of the trial judge's action in the admission of evidence. We cannot hold, as petitioner urges, that the introduction and identification of the snakes so infused the trial with unfairness as to deny due process of law. The fact that evidence admitted as relevant by a court is shocking to the sensibilities of those in the courtroom cannot, for that reason alone, render its reception a violation of due process." Lisenba, 314 U.S. at 228-29.
These three Supreme Court cases declined to hold that the admission of prejudicial or propensity evidence violates the defendant's due process rights. No Supreme Court cases since Estelle v. McGuire have undermined the holdings in these three cases. In other words, there is no Supreme Court holding that the admission of prejudicial or propensity evidence violates due process.
When the U.S. Supreme Court "cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, `it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.' . . . Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (second and third alterations in original) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), and 28 U.S.C. § 2254(d)(1)).
The Supreme Court has established a general principle of "fundamental fairness," i.e., evidence that "is so extremely unfair that its admission violates `fundamental conceptions of justice'" may violate due process. Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977) (due process was not violated by admission of evidence to identify perpetrator and link him to another perpetrator even though the evidence also was related to crime of which defendant had been acquitted)). Thus, the court may consider whether the evidence was "so extremely unfair that its admission violates `fundamental conceptions of justice.'" Id.
In this circuit, the admission of prejudicial evidence may make a trial fundamentally unfair and violate due process "[o]nly if there are no permissible inferences the jury may draw from the evidence." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must `be of such quality as necessarily prevents a fair trial.' Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." Jammal, 926 F.2d at 920 (internal citation and footnote omitted).
Here, Mr. Khek does not show that the admission of the photo meets the very demanding standard of being so extremely unfair that its admission violates fundamental conceptions of justice. There were permissible inferences that could be drawn from the photo, as the prosecutor had argued. Most importantly, the photo supported the inference that the stabbing was done with the intent to kill, rather than an intent to only injure the victim. Unlike the testimonial description of the autopsy results, the photo starkly conveyed the brutality of the stabbing. As the prosecutor argued, intent was not a minor or collateral issue in this case, RT 615; withholding the photo from the jury might lead the jury to think it was a minor abdominal wound that just happened to result in death at a later time, and that would give the jury a distorted view of the severity of the stabbing. See RT 614. The prosecutor's concern was valid, as confirmed by the defense closing argument that urged, in part, that the stabbing was done in a manner calculated not to kill the victim. Mr. Khek's attorney argued in closing: "And he stabbed him. In the heart? No. In the lower part of his stomach on the right-hand side away from the heart. And he slashed his shoulder. On these facts Kosal Khek guilty of second degree murder. The question for you is did he intend to injure him, to hurt him by stabbing him? Or did he have an intention to kill him?" RT 2990 (error in source); see also RT 2995 ("He chose a knife. He chose to stab him away from the heart in the lower stomach.") Defense counsel also urged in his closing argument that the instant messages could be explained as tough talk by teenagers trying to fit in with their gang peers, see RT 2992; that stabbings are not always fatal, RT 2988; that Mr. Khek "intended to hurt" the victim, RT 2994, 2998; that Mr. Khek chose to use a knife instead of a gun because people could survive stabbings, RT 2994; and that Mr. Khek was "remorseful for the unintended consequences of his desire to hurt and to stab and to injure" the victim, RT 2998-99.
As the state appellate court explained, the photo was relevant to show "the nature and brutality of the wounds, which illustrated the People's theory that the killing was intentional rather than an assault gone awry and [to illustrate] the pathologist's testimony about the severity of the injuries." Cal. Ct. App. Opinion at 6. The jury could draw the inference from the photo that Mr. Khek stabbed the victim with the intent to kill him. Because this inference is permissible, the state appellate court did not unreasonably apply Supreme Court authorities in holding that the admission of the photo did not violate due process. See Jammal, 926 F.2d at 920. See, e.g., Thornburg v. Mullin, 422 F.3d 1113, 1128, 1129 (10th Cir. 2005) (no due process violation where petitioner challenged the admission of six photographs "depicting the charred remains of the victims' bodies"; despite the fact that the petitioner did not dispute the manner of death, "the state still bore the burden to convince the jury that its witnesses, both eyewitnesses and experts, provided an accurate account of events"); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (gruesome photos were probative of state's theory that petitioner meticulously dissected victim and did not act in a blind rage); Willingham v. Mullin, 296 F.3d 917, 928-29 (10th Cir. 2002) (denying claim that the admission of 22 photos of the murder victim's body was so unduly prejudicial as to render his trial fundamentally unfair, where photos were relevant to issue of intent); Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997) (admission of "admittedly gruesome photos of the decedent" did not "raise[] the specter of fundamental unfairness such as to violate federal due process of law"); Villafuerte v. Lewis, 75 F.3d 1330, 1343 (9th Cir. 1996) (no due process violation in admission of photos "depicting blood at the crime scene, the wrapping of the victim's head, and the bindings on the victim" — the photos "were relevant to the charge of dangerous kidnapping," i.e., to prove that defendant "knowingly restrained the victim, with the intent to kill, injure, rape, or frighten her").
Mr. Khek calls the evidence speculative. He is wrong. He does not dispute that the photo accurately depicted the condition of the victim's body at the crime scene, and the protruding intestines were from the stabbing rather than from any work done on him by emergency or medical personnel. Moreover, contrary to Mr. Khek's assertion, the prosecutor's arguments at the in limine hearing regarding inferences that the jury could draw from the photo, were not evidence — speculative or otherwise. The prosecutor's closing arguments asking the jury to draw inferences from the photo (e.g., that Mr. Khek had seen the intestines protruding from the wound) did not make the photo itself speculative in nature. The trial court instructed the jury that counsel's arguments were not evidence, see CT 2551, and the jury is presumed to have followed that instruction. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) ("The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.")
"[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Bearing in mind the extremely general nature of the Supreme Court's articulation of a principle of "fundamental fairness" — i.e., evidence that "is so extremely unfair that its admission violates `fundamental conceptions of justice'" may violate due process, see Dowling, 493 U.S. at 352 — the California Court of Appeal's rejection of Mr. Khek's due process claim was not contrary to or an unreasonable application of clearly established federal law as set forth by the Supreme Court. See generally Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (denying writ because, although Supreme Court "has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." (internal citation omitted)).
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling" as to the first claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000). And, as to the second claim, this is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.
Accordingly, a certificate of appealability is
For the foregoing reasons, the petition for writ of habeas corpus is
It was the combination of the rigid application of the State's evidence rules and the fact that the evidence bore considerable assurances of trustworthiness and reliability that led to the due process violation in Chambers. See id. at 302-03. The Supreme Court specifically pointed out that its holding did not "signal any diminution in the respect traditionally accorded the States in the establishment and implementation of their own criminal trial rules and procedures." Id. at 303. Here, by contrast, DeJong's statement that they only wanted to hurt the victim was inadmissible with a routine application of the hearsay rule and did not have considerable assurances of its reliability such that it fit within the spirit of the hearsay rule or exceptions thereto.
CT 2572-74 (CALCRIM 521).
The Court notes that some courts have rejected the idea that a defendant's in-court behavior actually can amount to an extrinsic influence on a juror. See Schuler, 813 F.2d at 983 (Hall, J., dissenting) ("The principle that a defendant's courtroom demeanor is evidence is well-settled"); Wilson v. United States, 505 F. App'x 884, 886 (11th Cir. 2013) ("We have yet to consider in a published opinion whether a defendant's alleged staring at the jury constituted an `extraneous' or `extrinsic' contact such that the district court was required to conduct further inquiry [under Remmer, 347 U.S. 227], and we note that our sister circuits are split on the issue"); Waller v. United States, 179 F. 810, 812 (8th Cir. 1910) ("The demeanor of the defendant is not only proper evidence, but it is impossible to prevent the jury from observing and being influenced by it."). See generally 2 J. Wigmore, Evidence § 274 (J. Chadbourn rev. ed. 1979) ("the attempt to force a jury to become mentally blind to the behavior of the accused sitting before them involves both an impossibility in practice and a fiction in theory").
Jammal is one of the few cases that gives any guidance as to what might amount to the introduction of evidence that might amount to fundamental unfairness. The Ninth Circuit continues to use the Jammal "permissible inference" test in habeas cases governed by the AEDPA. See, e.g., Noel v. Lewis, 605 F. App'x 606, 608 (9th Cir. 2015) (admission of gang evidence did not violate due process); Lundin v. Kernan, 583 F. App'x 686, 687 (9th Cir. 2014) (citing Jammal and concluding that admission of graffiti evidence did not violate due process because there were permissible inferences to be drawn); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008) (citing Jammal and concluding that evidence of prior bad acts did not violate due process).
