YVONNE GONZALEZ ROGERS, District Judge.
Now before the Court is petitioner Allen Williams's amended petition for a writ of habeas corpus. (Dkt. No. 26.) The government answered (Dkt. No. 27) and petitioner filed a traverse in reply (Dkt. No. 28). Petitioner raises two grounds for relief. First, petitioner asserts that the trial court violated his constitutional right to present a full defense under Chambers v. Mississippi when it rejected admission of exculpatory evidence. Second, petitioner claims that his counsel rendered ineffective assistance. Specifically, with respect to his ineffective assistance of counsel claims, petitioner claims that his counsel failed to: (i) obtain admission of certain exculpatory hearsay statements; (ii) move to suppress police testimony and photographs of blood inside the house obtained through a warrantless search; and (iii) object to admission of certain hearsay statements to the paramedic and 911 operator under the Confrontation Clause.
Based thereon, petitioner seeks a writ of habeas corpus. Having carefully considered the petition and the papers submitted, and for the reasons stated below, the petition for such relief is
On February 4, 2013, a San Mateo County jury found petitioner Allen Williams guilty of "infliction of corporal injury" on his spouse ("Jane Doe") and of "assault by means of force likely to cause great bodily injury." People v. Williams, No. A-138275, 2014 WL 1465884, at *1 (Cal. Ct. App. Apr. 15, 2014), review denied July 23, 2014. The trial court additionally found true numerous enhancement allegations, and sentenced petitioner to a prison term of thirty-nine years to life. Id. at *2. On April 15, 2014, the California Court of Appeal affirmed the judgment of the trial court. Id. at *1. In addressing the petitioner's claims on appeal, the California Court of Appeal summarized the relevant facts as follows:
Id. at *1. On July 23, 2014, the California Supreme Court denied review of the Court of Appeal decision regarding petitioner's Chambers due process violation and ineffective assistance of counsel ("IAC") claims. People v. Williams, No. S-218741 (Cal. July 23, 2014).
A federal court can entertain a petition for a writ of habeas corpus on behalf of a person in state custody "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). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, section 2254(d)(1), a state prisoner can obtain habeas relief regarding a claim adjudicated in state court only if the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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 [s]tate court proceeding." 28 U.S.C. § 2254(a).
A state court decision is "contrary to" clearly established federal law, as determined by the Supreme Court, only 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 Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is considered an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if it correctly identifies a governing legal principle from a Supreme Court decision but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court reviewing a habeas petition cannot 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." Id. at 411. Rather, a federal court may grant the writ only if they find the state court decision was contrary to or an unreasonable application of a clearly established federal law. Id. at 412-13. The Supreme Court has ruled that the petitioner has the burden of showing that a state court decision is an objectively unreasonable application of clearly established federal law. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Harrington v. Richter, 562 U.S. 86, 98, 101-03 (2011).
AEDPA requires a highly deferential standard for evaluating state court rulings and "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002); see also Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997). "[A] habeas 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 Supreme] Court." Harrington, 562 U.S. at 102. A federal court should only grant relief due to a constitutional error of the state court when the error was not harmless, that is, only if it had a "substantial and injurious effect or influence in determining thhe jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 638 (1993).
When there is no reasoned opinion from the highest state court considering the petitioner's claims, the federal court reviewing the habeas petition should consult the last state court to render a decision on the claims to determine whether or not a clearly established law of the Supreme Court was unreasonably applied. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). The last reasoned state court decision in this case is the California Court of Appeal's unpublished disposition issued on April 15, 2014.
The constitutional right of an accused to due process in a criminal trial guarantees defendants "the right to a fair opportunity to defendd against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). This right encompasses the "rights to confront and cross-examine witnesses and to call witnesses in one's own behalf." Id.; see also Washington v. Texas, 388 U.S. 14, 19 (1967). Specifically, Chambers held that the exclusion of reliable, defense-critical evidence through the mechanistic application of evidentiary rules undermines the defendant's right to present a defense and violates due processs. Chambers, 410 U.S. at 302; see also United States v. Evans, 728 F.3d 953, 966 (9th Cir. 2013) (stating that the Ninth Circuit has found violations of the constitutional right to present a defense where the trial court incorrectly excluded evidence that was necessary for the defendant to refute a critical element of the prosecution's case) (internal citation omitted); Cudjo v. Ayers, 698 F.3d 752, 754 (9th Cir. 2012) (stating that Chambers clearly established that the "exclusion of trustworthy and necessary exculpatory testimony at trial violates a defendant's due process right to present a defense").
The Supreme Court's holding in Chambers should be interpreted narrowly, as it "does not stand for the proposition that the defendant is denied a fair opportunity to defend himsself whenever a state or federal rule excludes favorable evidence." United States v. Scheffefer, 523 U.S. 303, 316 (1998). The Chambers holding allows federal courtss to defer to state evidentiary rules in criminal trials and was meant to be confined to the facts and circumstances of that case. Id. The right to present a defense is violated only when exclusion of such evidence is "arbitrary or disproportionate to the purposes [the exclusionary rule applied is] designed to serve." Holmes v. S. Carolina, 547 U.S. 319, 324 (2006) (internal cittation and quotation marks omitted); Michigan v. Lucas, 500 U.S. 145, 151 (1991). A defendant's due process right may be violated where the rule is applied "mechanistically to defeat the ends of justice," even if the exclusionary rule applied is itself constitutional, esteemed, and regularly applieed. Chambers, 410 U.S. at 302 (holding that where the excluded evidence bares "persuasive assurances of trustworthiness" and is "critical" to the defense, the exclusionary rule must yield to the defendant'ss constitutional right to present a defense); see also Montana v. Egelhoff, 518 U.S. 37, 52-53 (1996) (Chambers applied to evidentiary exclusions that are without "valid state justification").
Additionally, even if a defendant's constitutional right to present a defense is violated, habeas relief is warranted only if the error was likely to have had a "substantial and injurious effect" on the verdict. Brecht, 507 U.S. at 637-38.
Petitioner contends that his constitutional rights under CChambers were violated when the trial court refused to admit Doe's hearsay statements to Savage. Specifically, at trial, petitioner proffered Doe's hearsay statements through Savage:
(Dkt. No. 4 at 9.) The trial court found the testimony to be unreliable and therefore inadmissible, and the Court of Appeal affirmed.
Williams, 2014 WL 1465884, at *2-3.
Under Chambers, a defendant's rights to present a defense are violated when the application of evidentiary rules bars testimony that "bore persuasive assurances of trustworthiness" and "was critical to [petitioner's] defense." Chambers, 410 U.S. at 302. Even if a constitutional error occurred pursuant to Chambers, reversal is warranted only if such error was not harmless. See Brecht, 507 U.S. at 637. The Court first addresses whether there was a violation under Chambers, and then whether any such violation was harmless.
Petitioner argues that the statements here were trustworthy and reliable because they were spontaneously made to a close friend shortly after the incident, and they were corroborated by Doe's statements to another friend, Graham, and byy petitioner's injuries. Additionally, petitioner stresses that the excluded hearsay statements were against Doe's penal interest thereby falling into a hearsay exception.
Petitioner relies primarily on the Supreme Court's decision in Chambers and the Ninth Circuit's decision in Cudjo in support of his argument that the statements made by Doe to Savage bore the requisite assurances of trustworthiness. Both, however, are distinguishable from the case at hand and therefore do not persuade. In Chambeers, the defendant accused of murder called a witness, McDonald, who had previously confessed to the same murder. Chambers, 410 U.S. at 294. At trial, McDonald disavowed the confession while on the stand, and the defendant was thereafter barred from treating McDonald as an adverse witness pursuant to Mississippi's "voucher rule," which did not allow parties to impeach their own witnesses. Id. at 295. Additionally, the trial court refused to allow the defendant to introduce the testimony of three individuals, each of whom would have testified that McDonald had confessed to them that he committed the murder. Id. at 298. The Supreme Court held that McDonald's confessions bore sufficient indicia of trustworthiness because they were "made spontaneously to a close acquaintance shortly after the murder occurred," were each "corroborated by some other evidence in the case," and "each confession [] was in a very real sense self-incriminatory and unquestionably against interest." Id. at 300-01. Similarly, in Cudjo, the defense attempted to offer hearsay testimony from a witness who had confessed to committing the murder to a close friend shortly after the murder occurred. Cudjo, 698 F.3d at 754.
The statements at issue here do not bear the same indicia of reliability. First, unlike the statements in Chambers and Cudjo, which were made shortly after the murders, the statements from Doe to Savage were made after she was released from the hospital, approximately eight days after the incident. (Dkt. No. 23-8 at 22.) Second, unlike the confession at issue in Chambers, which was consistent across the three witnesses to whom McDonald allegedly confessed, Doe's statements to Savage were inconsistent with her statements to another potential witness, Graham. Whereas Doe's statements to Savage alleged that she started the confrontation, her statements to Graham indicated that petitioner began the altercation. (See Dkt. 4 at 6 (Graham's statement indicating that following "an exchange of words, [petitioner] pushed [Doe], causing her to fall against a window seat" and in response, Doe grabbed a cane and struck petitioner in the head).) Third, it was not unreasonable for the Court of Appeal to conclude that Doe may have had motivation to lie to Savage regarding the incident. In both Chambers and Cudjo, neither of the witnesses had an incentive to lie about committing the murders to exonerate the defendant. By contrast, Doe herself expressed to Savage her concerns about causing petitioner, her husband, to be placed in jail. (Dkt. No. 4 at 9.) Additionally, the gravity of the potential charges in Chambers and Cudjo made it highly unlikely that the witnesses would lie about murdering someone given the potential for lifetime incarceration. Here, the possible penalty for Doe hitting her husband with a cane was miniscule compared to the probable sentence for petitioner's third strike.
On balance, the Court of Appeal's conclusion about the lack of trustworthiness of the proffered hearsay statements and the resulting exclusion of those statements was not contrary to or an unreasonable application of the clearly established rule presented in Chambers. See Christian v. Frank, 595 F.3d 1076, 1084-86 (9th Cir. 2010), cert. denied, 562 U.S. 1007 (2010) (rejection of purportedly exculpatory hearsay statement did not merit habeas relief where the evidence was less reliable than the hearsay evidence in Chambers). The Court of Appeal's determination that the hearsay statements lacked the basic assurances of reliability because of their inconsistencies, the surrounding circumstances, and the potential motivation of the declarant was not an unreasonable application of the state evidentiary rule. Therefore, the Court of Appeal's decision was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the United States Supreme Court in Chambers. 28 U.S.C. § 2254(d).
The Court also finds relief unwarranted here on the additional ground that Doe's statements to Savage were not critical to petitioner's defense. Petitioner argues that the statements at issue constituted the only evidence probative of mitigating petitioner's guilt as they showed that Doe initiated the conflict and that petitioner was only acting in self-defense. However, as respondent argues, it does not appear that Doe's statements were critical to petitioner's defense. First, testimony from the arresting officer described petitioner's injuries and informed the jury that such injuries resulted from Doe hitting petitioner on the head with a cane. (Dkt. No. 23-7 at 32-33.) Second, unlike in Chambers where the excluded statements, if true, would have exonerated the defendant, here, it was not unreasonable for the Court of Appeal to find that Doe's statements, even if admitted and believed to be true, would not have established a viable case for self-defense. (See infra.)
Accordingly, the Court finds that petitioner has failed to carry his burden of showing that the state court decision is an objectively unreasonable application of clearly established federal law. See Cullen, 563 U.S. at 181.
Even assuming, arguendo, that the exclusion of Savage's testimony was a Chambers violation, habeas relief would still be inappropriate in this case because any such error would be harmless. The Supreme Court has held that unless the error at issue "had substantial and injurious effect or influence in determining the jury's verdict," a trial court's constitutional error does not permit habeas relief. Brecht, 507 U.S. at 637-38. Under Brecht, a petitioner must show not just a "reasonable possibility" that the error affected the verdict, but that the error resulted in "actual prejudice." Id. at 637-39 (holding that the error was harmless because the prosecution's "evidence of guilt was, if not overwhelming, certainly weighty.")
Here, petitioner argues that the excluded evidence was critical to his claim that he attacked Doe in self-defense. Petitioner asserts that Savage's testimony provides evidence that Doe initiated the altercation. Thus, petitioner argues, a jury could have determined that petitioner's reaction was not necessarily greater than what a reasonable person would deem necessary to ensure their safety given the circumstances. With regards to this issue, the California Court of Appeal held:
Williams, 2014 WL 1465884, at *3-4.
Unlike in Chambers where the hearsay testimony was a confession from another person that he had committed the murder, Chambers, 410 U.S. at 298, the hearsay testimony here would only confirm that Doe hit petitioner with a cane, with the additional fact that she may have initiated the physical altercation, Williams, 2014 WL 1465884, at *2. It was not unreasonable for the Court of Appeal to find that, given the "nature and gravity" of Doe's injuries in comparison to petitioner's injuries, a jury would still find that petitioner's response was "beyond anything necessary to defend himself." Williams, 2014 WL 1465884, at *5-6 (explaining that in defending one's self, "[o]nly force that a reasonable person similarly situated would deem necessary to insure their safety is permissible").
Thus, even if the Court had found a constitutional violation, such violation would have been harmless given the circumstances of this case.
In order to establish IAC, petitioner must show both thaat: (i) his counsel performed deficiently and (ii) the deficient performance in fact prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A reviewing court should deny an IAC claim if the petitioner cannot adequately demonstrate either of the Stricklannd prongs. Id. at 697 (courts are not required to address both prongs of the test if the petitioner fails on one).
In establishing the first prong of Strickland, petitioner must show that his counsel's performance was deficient, i.e., it fell below an "objective standard of reasonableness" under predominant professional norms. Id. at 687-88. The reviewing court should treat counsel's conduct with a strong presumption that the conduct is within the realm of reasonable professional assistance. See id. at 689.
In order to establish the second prong, petitioner must show counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Petitioner must establish that counsel's errors were so severe as to dispossess the petitioner of a fair trial and reliable verdict. Id. at 692. When a petitioner is challenging a conviction, the pertinent question is "`whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Hinton v. Alabama, 134 S.Ct. 1081, 1089 (2014) (quoting Strickland, 466 U.S. at 694). For petitioner to show prejudice due to counsel's failure to file a motion, petitioner has to prove that (1) had his counsel filed the motion, it is reasonably probable that motion would have been granted, and (2) had the motion been granted, it is reasonably probable that the result of the trial would have been more favorable to him. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
For a federal court reviewing IAC claims in a habeas proceeding, the question "is not whether a federal court believes the state court's determination" under Strickland "was incorrect[,] but whether [that determination] was unreasonable—a substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted). Under section 2254(d), a federal habeas court reviewing Strickland claims should apply a decidedly deferential standard to state court decisions. See Knowles, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)); see also Cullen, 563 U.S. at 202 (holding that a federal habeas court applies a "doubly deferential" standard of review in analyzing IAC claims under section 2254). In examining a habeas IAC claim, if petitioner cannot prove the deficient performance prong, a federal court does not need to explore Strickland's prejudice prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Inversely, it is unnecessary for a federal habeas court to decide whether counsel's performance was deficient before examining whether petitioner was prejudiced due to the purported deficient performance of his counsel. See Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (affirming the district court's refusal to contemplate whether counsel deficiently performed after already deciding that petitioner could not show prejudice).
The pronounced deference in Strickland for reviewing a defense counsel's effectiveness provides state courts with more flexibility in reasonably applying the rule, consequently "translat[ing] to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Because the Strickland preejjudice examination is comprehensive in itself, there is no need for a habeas court to employ the harmless error review undder Brecht. Brecht, 507 U.S. at 637; see also Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).
The Court addresses each of the IAC claims brought, namely, petitioner's counsel's failure to: (i) obtain admission of Doe's hearsay statements through Savage's testimony; (ii) move to suppress police testimony and photographs of blood inside the house; and (iii) object to admission of Doe's hearsay statements to the paramedic and 911-operatorr under the Confrontation Clause.
As previously discussed, the trial court denied the defense's request for admission of Doe's hearsay statements through Savage as an exception based on a declaration against penal interest. Alternatively, petitioner argues that his trial counsel should have sought admission for purposes of impeachment under the inconsistent statements exception. The California Court of Appeal agreed that such performance was deficient. Williams, 20014 WL 1465884, at *4. However, the Court of Appeal held that petitioner's IAC claim failed on this ground because any such error was harmless. Id. Thus, the court reasoned:
For the reasons discussed above, and in light of the undisputed evidence indicating the injuries inflicted on Doe, it was not unreasonable for the California Court of Appeal to decide that there was no reasonable probability of Doe's statement to Savage changing the jury verdict. Therefore, the Court of Appeal did not contravene or unreasonably apply the standard for IAC set forth in Strickland in finding no prejudice due to defense counsel's deficient performance.
Petitioner next argues that his counsel's failure to suppress police testimony and photographs of blood inside the house was IAC. Specifically, petitioner argues that his counsel should have moved to exclude the testimony of Officer Manion and the introduction of photographs taken by Officer Manion based on his warrantless search of petitioner's house. With regards to this issue, the California Court of Appeal explained:
Williams, 2014 WL 1465884, *4-5.
Under the Fourth Amendment, warrantless searches of a home are presumptively unconstitutional, however, that presumption may be overcome if exigent circumstances exist. Michigan v. Fisher, 558 U.S. 45, 47 (2009); United States v. Alaimalo, 313 F.3d 1188, 1192-93 (9th Cir. 2002). "[E]xigent circumstances are present when a reasonable person [would] believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir. 2001) (internal quotations omitted); Kentucky v. King, 563 U.S. 462, 471-72 (2011) (exception to prevent destruction of evidence). The Fourth Amendment also permits police officers to enter a home without a search warrant to provide emergency aid to a wounded inhabitant or to defend an inhabitant from impending harm. Fisher, 558 U.S. at 45, 47. This "emergency aid" exception requires only that the officer had an "objectively reasonable" foundation for thinking that someone in the house was in need of urgent care. Id.
Here, when the officer reached petitioner's home, Doe had told the dispatcher that she was in her neighbor's backyard. Williams, 2014 WL 1465884, at *5. However, when the officer arrived, he saw petitioner on the front porch, and he was not certain as to the victim's location, as it was not clear whether or not she remained in her neighbor's yard. Id.
The officer's testimony on this issue is instructive:
(Dkt. No. 23-7 at 29-31.)
Under these circumstances, it was not unreasonable for the Court of Appeal to find that the officer had an "objectively reasonable basis for believing that a person within the house [was] in need of immediate aid." Fisher, 558 U.S. at 47; see also United States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2006) (finding search justified where police feared that victim could have been inside the apartment). Accordingly, the Court of Appeal's conclusion that it was not outside the scope of professional conduct for petitioner's trial counsel to decide not to bring a motion to suppress such evidence was also reasonable and subject to this Court's deference.
Additionally, it was not unreasonable for the Court of Appeal to find that counsel's failure to move for suppression did not prejudice petitioner. Even if petitioner's counsel had moved to suppress such evidence and succeeded, the prosecution also presented photographs and medical testimony of Doe's actual injuries. (See Dkt. No. 23-7 at 118-35.) As respondent argues, the "emotional impact that could have arisen from the photographs of the bedroom were already independently evoked by the photographs of the victim's face and body." (Dkt. No. 27-1 at 36.) Thus, there is no "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695.
Petitioner further argues that he received ineffective assistance of counsel due to defense counsel's failure to object to the admission of Doe's statements to the 911 operator and paramedic as a violation of the Sixth Amendment's Confrontation Clause. The California Court of Appeal rejected petitioner's argument:
Williams, 2014 WL 1465884, at *5-6.
The Sixth Amendment's Confrontation Clause affords the accused in criminal cases the right to "be confronted with the witnesses against him." U.S. Const. amend. VI. The goal of the Confrontation Clause is to guarantee due process and the trustworthiness of evidence. Crawford v. Washington, 541 U.S. 36, 61 (2004). The clearly established Supreme Court precedent under Crawford demands that the reliability of evidence be tested by the adversarial process' hallmark of cross-examination. Id.; see also Davis v. Alaska, 415 U.S. 308, 315-16 (1974).
The Confrontation Clause applies to all "testimonial" statements, whether made in court or out of court. Crawford, 541 U.S. at 50-51. A statement is testimonial hearsay subject to the Confrontation Clause when the main purpose of presenting the out-of-court statement is to create an out-of court substitute for trial testimony. Michigan v. Bryant, 562 U.S. 344, 369 (2011); see, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 655-59 (2011) (finding that a lab report prepared in connection with a criminal investigation and certifying that petitioner's blood alcohol level was above limit for aggravated DUI was testimonial); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 329 (2009) (concluding a certificate from a crime lab analyst identifying a controlled substance qualified as testimonial evidence because it was produced for the purpose of proving a fact in trial and was basically identical to other in-court testimony).
Where an investigation or preparation for trial is not the primary purpose of garnering a statement, "the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Bryant, 562 U.S. at 358. The relative formality of the questioning, or the lack thereof, may aid a court's inquiry as to its "primary purpose." Id. at 366. The primary purpose of a statement is determined objectively. United States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013). Accordingly, "`the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.'" Id. (quoting Bryant, 562 U.S. at 360).
"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." Davis v. Washington, 547 U.S. 813, 822 (2006). Statements 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 814, 822. Testimonial hearsay statements are prohibited under the Confrontation Clause unless (1) the witnesses are unavailable, and (2) the defendants had a prior opportunity to cross-examine the witnesses. Crawford, 541 U.S. at 59.
Here, the statements of concern involved, like Davis, a 911 call occurring in an ongoing emergency: Doe's request for medical help and rescue from the neighbor's backyard. In Davis, the Supreme Court held that the statements were not testimonial because the nature of "what was asked and answered . . . was such that the elicited statements were necessary to be able to resolve the present emergency." Davis, 547 U.S. at 817, 827 (discussing that the operator asked "What's going on?," "Are there any weapons?," and "What's his . . . name?," to which the victim answered "He's jumpin' on me again," "No. He's usin' his fists," and "Davis . . . Adrian"). The questions asked by the 911 operator in the instant matter are indistinguishable from those asked by the 911 operator in Davis. (See Dkt. No. 23-5 at 42-43 (transcript of 911 call where operator asked Doe what happened, whether her husband had any weapons, and what her husband's name was). Petitioner attempts to distinguish Davis by arguing that here, Doe informed the 911 operator that she had been attacked forty-five minutes prior to making the call. However, in the same breath, Doe also informed the operator that she had just been "able to slip away" from petitioner, which could have implied that she remained in danger. (Dkt. No. 23-5 at 42.) Thus, it was not unreasonable for the Court of Appeal to determine that the statements made to the 911 operator were not testimonial and that therefore, defense counsel's failure to object was not deficient.
Petitioner's arguments with respect to Doe's statements to the paramedic are equally unavailing. Petitioner argues that the paramedic's questions went beyond what was necessary to provide treatment but rather were intended to obtain information for a future prosecution. Specifically, petitioner takes issue with the paramedic asking Doe what happened, how she received her injuries, and whether she was struck with an open hand, closed hand, or kicked. These questions, petitioner argues, were not necessary for Doe's diagnosis or treatment. However, at trial, the paramedic testified that such questions help them determine "where the injuries could be, and pretty much line up for the hospital so they can know what to expect, what areas to look at." (Dkt. No. 23-15 at 12.) The Ninth Circuit has held similar questioning from a physician to be non-testimonial. See Moses v. Payne, 555 F.3d 742, 748, 755 (9th Cir. 2008) (holding that state court's determination that emergency room physician's questions about what happened to assault victim was not testimonial was not an unreasonable application of Crawford). Thus, it was also not unreasonable for the Court of Appeal to determine that Doe's statements to the paramedic were non-testimonial and that defense counsel's failure to object to such statements was not deficient. Williams, 2014 WL 1465884, at *5.
In any event, even if the Court were to find that counsel's performance with respect to this issue was deficient, it was not unreasonable for the Court of Appeal to find that petitioner was not prejudiced by any potential error. Id. As discussed above, the evidence of Doe's severe injuries, coupled with petitioner's admission of guilt would likely not have been outweighed or even compromised by the exclusion of the statements at issue here. Additionally, Doe's medical records and contemporaneous photographs amply document the extent of the injuries inflicted on Doe. Hence, no reasonable probability exists that the outcome of the trial would have been different if defense counsel had objected to the admission of the statements at issue here.
Accordingly, petitioner has not met his burden to show that he is in custody in violation of the Constitution or laws or treaties of the United States, and his petition is hereby
