Free Response ( Non Motion ) - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 DANIEL MOORING, 14 Petitioner, 15 v. 16 J. WALKER, Warden, 17 Respondent. 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS C 07-5013 SI (pr) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 DANIEL MOORING, 14 Petitioner, 15 v. 16 J. WALKER, Warden, 17 Respondent. 18 19 20 21 STATEMENT OF THE CASE In 2004, a San Francisco County jury found petitioner guilty of first degree murder with MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS C 07-5013 SI (pr) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 a robbery special circumstance, two counts of second degree robbery, assault with a deadly weapon, 23 and possession of a firearm by a felon. Exh. 2C at 826-833; Exh. 4BB at 3403-3407. The trial court 24 sentenced petitioner to life without the possibility of parole on the murder count, five-year upper 25 terms for each of the two robbery counts, a four-year upper term on the assault count, and an eight26 month middle term on the possession count. The sentence on one of the robbery counts and the 27 assault count were stayed. Exh. 2C at 896-900; Exh. 4EE at 3456-3459. 28
Memo. of Pts. and Auths. In Support of Answer to Pet. for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

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The California Court of Appeal affirmed the judgment on October 3, 2005. Exh. 9.

2 Petitioner filed a petition for review in the California Supreme Court, which was denied on January 3 4, 2006. Exhs. 10, 11. 4 Petitioner next filed a series of habeas petitions in the state superior court, court of appeal,

5 and supreme court, which were pending from November 9, 2006 to September 12, 2007. Exhs. 126 14; Petition at 4-5. 7 Petitioner filed the instant federal habeas petition on September 27, 2007. On November

8 14, 2007, this Court ordered respondent to show cause why the petition should not be granted. The 9 following is our response. 10 11 STATEMENT OF FACTS The following facts and accompanying footnotes are taken from the opinion of the

12 California Court of Appeal: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Memo. of Pts. and Auths. In Support of Answer to Pet. for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

A. PROSECUTION CASE AGAINST MOORING 1. Robbery of LaBonte Victim [Ray] LaBonte left his apartment in San Francisco around 10:00 p.m. on May 25, 1999, carrying $8 in cash. As he walked towards Alhambra Street, he saw a black male in dark clothing and a hooded sweatshirt run towards him, while another man circled around him. The man running towards him opened his jacket and displayed a single barrel gun. The other man, also in dark clothes, was taller, thinner, and bare-headed. The armed man (purportedly [Daniel] Mooring) instructed LaBonte to get down; LaBonte dropped to his knees. He then ordered LaBonte to give him his money, and LaBonte tossed the $8 from his pocket onto the sidewalk. Both assailants demanded LaBonte's wallet, but LaBonte replied he did not have one. LaBonte felt someone check his back pocket, and then felt a blow to the back of his head. As he fell forward, the armed man struck him in the right side of his jaw with the gun, and he lost consciousness. LaBonte's jaw was fractured in several places (requiring his jaw to be wired shut for six weeks and a permanent metal plate to be inserted), he suffered multiple cuts around his ear (requiring plastic surgery), and one of his teeth was knocked out. At trial, LaBonte identified Mooring as one of the men who robbed him, although he testified that he had looked at the ground during most of the robbery, and he had failed to identify a photograph of Mooring in a photographic lineup and identified photographs of others as the assailant as well. LaBonte told police his attacker was about 5'10" tall with a medium

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build, and described the second person as taller. Mooring was 6'2" or 6'3" tall.1/ [Willie] Kennedy and [Santese] Edwards, Mooring's accomplices, both testified that Mooring and Edwards were the ones who robbed LaBonte. According to Kennedy, he and [Tremayne] Collier left Richmond on May 25, 1999, in Collier's red Mustang convertible. At some point they were joined by Mooring and picked up Edwards in San Francisco. Kennedy had brought along his sawed-off .22 rifle. Collier and Edwards wore black "puff" jackets, while Mooring wore a gray and black Timberland jacket (exhibit 46). They discussed a plan to commit a robbery and drove to the Marina District. When they spotted a man (LaBonte) walking alone, someone other than Kennedy said, "let's ... get him." Mooring and Edwards got out of the car and robbed LaBonte, while Collier and Kennedy drove around the block. When Mooring and Edwards returned to the car, Mooring had the rifle and they mentioned they got a few dollars from their victim. Edwards asked Mooring why he hit LaBonte, and Mooring replied, "a bullet fell out." Edwards testified to the same effect. He recalled that Mooring, Collier, and Kennedy picked him up in San Francisco. Edwards was wearing his black puff jacket. Kennedy, who was holding the sawed-off rifle, said they wanted to get some money, which Edwards understood to mean they wanted to commit a robbery. The foursome eventually drove towards the Marina District. Edwards spotted someone (LaBonte) and announced, "They go somebody right there." Edwards (who was driving) turned the corner and parked. Edwards and Mooring, now holding the rifle, got out of the car, and Edwards told Collier and Kennedy to drive around the corner and return in two minutes. Mooring approached LaBonte from the front, while Edwards approached from the back. Mooring pointed the gun at LaBonte, and LaBonte put his hands in the air. Edwards patted LaBonte down and took his money. Mooring hit LaBonte with the rifle, and Edwards heard something fall to the sidewalk. Edwards and Mooring ran back around the corner, waited about a minute for the car to return, got in, and then proceeded with Kennedy and Collier to 4th and Mission Streets. Edwards recalled asking Mooring why he hit LaBonte so hard, but he could not remember if Mooring answered. Officer David Garcia responded to the scene around 10:20 p.m. and found a bullet without a casing or jacket. Retired San Francisco Police Department Criminalist Terry Coddington testified that the unfired bullet without a casing could have been expelled from a Marlin rifle if the rifle was used as a club. 2. Homicide of Worcester a. Testimony of Worcester's Friend, Farley Christopher Farley and [Shayne] Worcester, who was visiting San Francisco, had dinner with a group of friends, went to a bar in the Marina District, and left around 11:30 p.m. or midnight. They walked towards Farley's apartment on Russian Hill. Near the corner of Hyde and Vallejo Streets, Farley

LaBonte's description of his primary assailant actually fit Kennedy, who testified he was 5'10" tall and weighed 175 or 180 pounds in May 1999.
Mooring v. Walker C 07-5013 SI (pr)

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noticed two black men dressed in dark clothing, standing against a building as he and Worcester walked by. Shortly after Worcester and Farley crossed Hyde Street, the men began yelling and running towards them. The taller of the assailants had his arm stretched straight out from the shoulder, but Farley did not see him holding anything. Farley ran. When he looked back, Farley saw Worcester face down on the ground over the curb, with his lower body on the sidewalk and his upper body on the street. The two assailants stood over him. One of them said something like, "I want your money," and Worcester replied to the effect of "It's in my pocket. Take it." One or both of the assailants went through Worcester's pockets and appeared to pull out Worcester's wallet. Farley saw the arm of one of the assailants rise up within a few feet of Worcester's upper body, and then heard two or three popping sounds. The robbers ran off. Farley ran to Worcester and saw he was covered in blood. Paramedics took Worcester to the hospital, where he died the next morning of multiple gunshot wounds. Three slugs were recovered from his body. The cause of Worcester's death was two bullet wounds in his brain; a third bullet wounded his left shoulder. Farley did not see the assailants' faces and did not identify Mooring in court. Although the two men were big, he noted, neither appeared as large as Mooring in court. To Farley's recollection, the jacket Mooring was wearing in a photograph (exhibit 46)--the gray and black Timberland jacket Kennedy claimed Mooring was wearing that night--was not the jacket the shooter was wearing. b. Other Percipient Witness Testimony

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Christopher Jung heard two bangs a little after midnight. Twenty seconds later he saw a maroon and white convertible double-parked on Hyde Street and a tall and gangly man with short cropped hair and a black sweat suit (purportedly matching the description of Edwards) standing near the car looking east up Vallejo Street. After a long time, the man got in the passenger side of the car and the car slowly moved away. Jung then saw someone else coming around the corner. Jung called 911 and heard sirens. Kristen Grant heard two male voices outside her home on Vallejo Street around 12:15 a.m. that night. One said, "you better run, motherfucker." After a noise like a struggle, she heard someone demand, "give me your wallet." Within seconds she heard three shots. When she looked outside, she observed a man (Worcester) lying face down. Another man (Farley) stood over him and asked her, "please call 911." c. Testimony of Accomplice Kennedy After the LaBonte robbery, Kennedy recalled, Collier drove them around San Francisco and they discussed robbing somebody else. When they spotted two men walking on the street, Collier and Mooring jumped out of the car. Mooring had the gun. Edwards drove around for three or four minutes and returned to the same spot and waited. Kennedy heard three gunshots and recognized the sound of his gun. Mooring and Collier then came running back to the car. Inside the car, Collier asked Mooring why he shot him, and Mooring said "I don't know." Collier said he had the man pinned down with his foot on his neck.

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As they drove toward Edwards's grandmother's house, one of them was going through a wallet and dumping its contents out of the car.2/ They stopped at a gas station, where Collier used a credit card (Worcester's) to purchase gas. As they waited for Edwards to pump the gas, Kennedy remarked that it was "stupid" to shoot Worcester. The four men proceeded to Edwards's grandmother's house, where they dropped Edwards off. Mooring, Kennedy, and Collier continued on to a Denny's restaurant in Emeryville, where Collier used Worcester's credit card to treat them and some acquaintances to meals. Kennedy and Mooring wound up at Kennedy's home in Richmond, while Collier went to his own house. Mooring watched television with Kennedy's mother, Renee Williams. When news of the Worcester killing came on, Kennedy's mother said, "That was y'all." Mooring eventually admitted, "I did it; yeah, I did it." He added, "your son [Kennedy] didn't have nothing to do with it." Later that day (May 26), Collier and Kennedy went to a department store in Marin where they tried to use Worcester's credit card. (Bank and credit card records indicated that Worcester's credit card had been used at various locations after the robbery.) d. Testimony of Accomplice Edwards

11 12 13 14 15 16 17 18 19 e. Testimony of Kennedy's Mother 20 21 22 23 24 25 26 27 28 2. Worcester's driver's license and other cards were found on Lombard Street on May 26. Four business cards were found as well.
Mooring v. Walker C 07-5013 SI (pr)

Edwards, like Williams, testified that Collier and Mooring were the ones who attacked Worcester and Farley. Edwards explained that, after the LaBonte robbery, Edwards drove up to Russian Hill where he saw two young men coming down the street. Edwards said, "there go some people right there." He drove past them and stopped the car. Collier and Mooring got out. After a minute or so, Edwards heard a couple of "pops"; then Mooring and Collier ran fast to the car and got in. Edwards asked what they did, but neither man responded. As Edwards drove to a gas station, Kennedy was going through a wallet and throwing things out the window. Collier paid for the gas with a credit card. Edwards then drove to his home on Laguna and Golden Gate Avenues in San Francisco. As the other three dropped him off, Edwards told them, "Get rid of the gun." About a month later, Edwards testified, he saw Mooring and asked him what had happened that night. Mooring responded, "it was an accident."

Kennedy's mother Renee Williams testified that Mooring was at her home on the afternoon of May 26, 1999. She and Mooring were watching the news report of the killing. Williams told Mooring, "it sounded like your MO," and Mooring said "huh-uh." She switched to another channel with the same news and something about the car, and she remarked, "that sounds like y'all." She asked Mooring, "was that you?" and he said something like "yeah" or "yeah, I did it," which she took to mean that he killed the man. Williams remembered that Kennedy was out of the house with Collier at the time of the incident.

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f. Testimony of Bateast LaShonta Bateast lived with Mooring's cousin, Antoine Johnson, and had known Mooring for 11 years. Around the end of May 1999, Mooring and another man were in Bateast's living room when news about victimized tourists was on television. Mooring referred to the robbery and said, "Me and my home boy did the robbery, did the stuff to the tourists." When she asked why he robbed them, he replied, "I did it because I needed the money." Mooring explained that he shot the tourists with a gun he had bought from someone.3/ The other man in Bateast's living room was laughing, as if it were a joke, and Bateast thought Mooring was "playing around." The police talked to Bateast in May 2000, but she did not tell the police about her conversation with Mooring. She revealed the information to the police later that month, after they said they could help get her brother out of custody if she helped them. On cross-examination, Bateast admitted that, as she had told the police, Mooring claimed he killed the tourist "by the pier," not on a hill. 3. Police Investigation

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Bateast's testimony was as follows: "Q. When Mr. Mooring described, as you said, that he did it, did he tell you how he did it? [¶] A. He shot him. [¶] Q. Mr. Mooring told you that day in May that he shot the tourists? [¶] A. Yeah. [¶] Q. Did he tell you with what? [¶] A. Don't everybody know what you shoot someone with? [¶] Q. But we need to know what Mr. Mooring told [you that] day, Ms. Bateast. Even if it seems obvious to you, we need to know what he told you that day. [¶] A. With a gun. [¶] Q. Did you ask Mr. Mooring any questions about where he got that gun? [¶] A. Somebody sold it to him. [¶] Q. Is that what Mr. Mooring told you? [¶] A. Yes."
Mooring v. Walker C 07-5013 SI (pr)

On October 5, 1999, a black Old Navy jacket (exhibit 42-A) was seized from Collier's bedroom. Unique gunshot residue particles were found on both sleeves of his jacket. Particles consistent with gunshot residue were also found on the "Edwards jacket" (exhibit 70). Mooring was interviewed by the police on November 22, 1999, and a videotape of the interrogation was played for the jury. When asked what he was doing in May 1999, Mooring said he would hang out everyday with his cousin in San Francisco. When asked if he remembered being in "this car" (while being shown a photograph presumably of Collier's Mustang), Mooring claimed he had ridden in it and it belonged to someone his friend "Tese" knew. When the police said they wanted to know if Mooring was directly involved in "robberies, murder, things like that," Mooring responded that he did not "get down like that." Also on November 22, 1999, police searched the home of Kennedy's aunt, with whom Kennedy was living. Two days later, Kennedy spoke with Marin County Detective Ridgeway as well as the San Francisco police. Although he initially denied it at trial, Kennedy told Detective Ridgeway that Collier

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admitted shooting Worcester, saying he pulled his foot off of Worcester and shot him. Mooring was interrogated by police again on December 3, 1999, and a videotape of this interrogation was played to the jury as well. Mooring initially denied robbing or shooting anyone, insisted he had done nothing, and claimed he was not at the crime scene. Later in the interview, however, he conceded being at the scene: "If I wasn't there, you wouldn't be talkin' to me right now." Further, he asserted: "Even if I was there, I had no part of doin' this," "I was in the wrong place at the wrong time," and if he explained what happened he would be "incriminating [him]self."4/ Edwards was interviewed by police on December 6, 1999. He denied any knowledge or involvement in the case. He admitted knowing Mooring, but denied knowing Collier or Kennedy, until the police confronted him with a photograph of him and Kennedy seized from Edwards's home. Edwards also falsely claimed he did not recognize Collier's car or know anyone who had such a car. His strategy, he testified, was to see where the police were going and deny any knowledge or involvement by lying. He lied to the police because he did not want to go to jail. 4. Grand Jury Proceedings and Pleas of Accomplices

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. 4. This portion of the interview went as follows: "Q-1. Well, we got you there [at the scene of Worcester's murder] anyway. [¶] A. I wasn't no part of it. [¶] Q-1. You can't say you weren't any part of it. You were certainly there. [¶] A. Even if I was there, I had no part of doin' this. [¶] Q-1. Then what's your explanation of what happened? [¶] A. I don't know. [¶] Q-2. Well, explain why you're there. [¶] Q-1. You tell us how you got there. [¶] Q-2. Were you out lookin' for an ice cream cone that night? (Inaudible). [¶] A. Wrong place, wrong time. [¶] Q-1. Yes. Very clearly. So what happened? [¶] A. I don't know what happened. I was in the wrong place at the wrong time. [¶] Q-1. Yes. So what happened? No games, just what happened. We'll put the picture together later. We'll ask them, `Okay, listen, is this what happened or not?' Can you just tell us that? [¶] A. I'd be incriminating myself if I did, so--" Kennedy's disposition was conditioned on him testifying truthfully for the prosecution and obeying all laws. By his own admission he did not always tell the truth in the grand jury proceedings. Nor did Kennedy comply with the other condition of probation, as in January 2003 he participated in multiple counts of home invasion robbery.
Mooring v. Walker C 07-5013 SI (pr)

On April 16, 2001, Kennedy pled guilty to the offense of accessory after the fact. He faced a maximum term of three years, but was given a suspended sentence on the condition of having already served one day in jail, was placed on three years probation, and was released. On April 17, Kennedy testified before the grand jury.5/

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Later that month, the grand jury indicted Mooring, Collier, and Edwards. Edwards was arrested on the indictment on April 24, 2001. Two days later, Mooring voluntarily surrendered himself. As he was transported to jail, Mooring observed, "Three people [including Collier] have been arrested. Where is the other guy?" Early in 2002, when both Edwards and Collier were in custody, Collier gave Edwards a letter. The letter purported to describe in detail the events of May 25 and 26, explaining that neither Collier nor Edwards had done anything wrong and only Kennedy and Mooring even knew there was a gun in the car. According to the letter, Mooring was directing the events that night. The letter accordingly predicted that Edwards and Collier should receive not guilty verdicts. Edwards passed this letter on to his attorney. At trial, Edwards conceded the letter was a "scam" to try to obtain an acquittal. In April 2002, Edwards was interviewed by a defense investigator with a series of questions prepared by the district attorney; the answers were to be a proffer of Edwards's testimony for the prosecution. In answering the questions, Edwards knew that his testimony had to comport with Kennedy's in order to be of value to the prosecution. On some points his proffer was untruthful. In June 2002, Edwards signed a plea agreement, by which he would plead guilty to felony grand theft with the understanding that he would serve no more than four years. Edwards further understood that after his testimony in this case, the charges would be dropped and he would be granted probation, although his maximum exposure in the case was life without possibility of parole.6/ 5. Ballistics The unfired bullet without a casing, found at the LaBonte scene, was determined to be similar to the expended bullets recovered from the Worcester autopsy. The rifling marks on the fatal bullets matched the unique rifling characteristics of a Marlin firearm. B. DEFENSE CASE

19 20 21 22 23 24 25 26 27 28 6. Kennedy entered the Witness Protection Program in April 2001. Bateast was brought into the program eight days after her grand jury testimony. Kennedy's friend, Kennedy's mother, and Edwards also received benefits from the program.
Mooring v. Walker C 07-5013 SI (pr)

Dr. John Thornton, a forensic scientist, testified that the .22 long ammunition used in the .22 sawed-off rifle was very common, with over three billion rounds a year manufactured. It was highly unlikely, he opined, that a bullet would fall out of a Marlin rifle, particularly a bullet without a casing like the one found at the LaBonte scene, since it is "devilishly hard" to remove a bullet from its casing and the necessary force would leave marks on the bullet. Dr. Thornton could not explain the uncased bullet. The defense presented evidence that Kennedy had perpetrated a home invasion robbery in January 2003. Christopher Anderson testified that he was

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awakened at 4:00 a.m. by someone waving a gun in his face. He saw his friend being held on the ground by another man with a gun demanding their wallets. Either two or three of the assailants had guns and were threatening to shoot them if they did not give up everything they had. Anderson lost his watch, the apartment was ransacked, and Play Station 2 and video games were stolen. All three victims made positive identifications of the suspects, including Kennedy, who were stopped leaving the scene. Kennedy was wearing a dark puff jacket. The defense also presented evidence that Collier was involved in a crime less than a month after the incident. Frank Caiazzo testified that in the early morning of June 17, 1999, he intended to buy drugs from three men, who took him to an ATM to withdraw $100. After withdrawing the money, Caiazzo was struck in the face with a gun and was held down by a man's foot. He held up the money and said to take it. Caiazzo called police and later identified Collier as the gunman and driver. Collier admitted in a parole revocation hearing that the ATM photographs were of him, but claimed the object he was holding was not a gun but an ax handle.7/ Evidence was presented as well that Williams (Kennedy's mother) was investigated on suspicion of selling cocaine out of her residence, and that an informant had made a controlled buy of drugs from her.

12 Exh. 9 at 2-12. 13 14 15 16 This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 17 (AEDPA), which imposes a "highly deferential" standard for evaluating state court rulings and 18 "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 19 U.S. 19, 24 (2002) (per curiam). Under the AEDPA, the federal court has no authority to grant 20 habeas relief unless the state court's ruling was "contrary to, or involved an unreasonable application 21 of," clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). A decision constitutes 22 an unreasonable application of Supreme Court law only if the state court's application of law to the 23 facts is not merely erroneous, but "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 24 (2003). Thus, "[o]nly if the evidence is `too powerful to conclude anything but' the contrary" should 25 26 27 28 7. Dr. Thornton opined that the object held by Collier in the ATM photograph was consistent with a sawed-off rifle.
Mooring v. Walker C 07-5013 SI (pr)

ARGUMENT I. STANDARD OF REVIEW GOVERNING FEDERAL HABEAS PETITIONS BROUGHT BY STATE PRISONERS

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1 the court grant relief. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (quoting 2 Miller-El v. Dretke, 545 U.S. 231, 265 (2005)). The petitioner bears the burden of showing that the 3 state court's decision was unreasonable. Visciotti, 537 U.S. at 25. 4 II. 5 6 7 8 Petitioner contends that the trial court violated his right to due process and a fair trial by THE ADMISSION OF EVIDENCE OF A SUBSEQUENT ROBBERY COMMITTED BY PETITIONER AND HIS STATEMENT TO THE POLICE AFTERWARD DID NOT VIOLATE DUE PROCESS

9 admitting evidence of his involvement in a robbery occurring after the crimes in this case, along with 10 a statement he made to the police after that robbery. However, because the evidence of the robbery 11 was probative of petitioner's intent to kill, its admission did not violate due process. Moreover, 12 assuming petitioner's statement to the police that he did not care about people who were not his 13 "folks" was not clearly probative of his intent to kill, its admission was not prejudicial. 14 15 A. Trial Court Proceedings The prosecution moved to admit evidence that on April 16, 2000, petitioner and two other

16 men chased down, beat, and robbed Ledia McCready in San Francisco. The prosecutor argued that 17 the evidence was admissible under California Evidence Code section 1101, subdivision (b), to show 18 petitioner's "modus operandi and . . . depraved intent." He also argued that "[i]f the jury does not 19 learn the truth about Mooring, the jury will be misled to believe that only Kennedy and Collier ha[d] 20 committed similar actions and, by extension, only Kennedy and Collier had the cold, heartless intent 21 needed to commit the crimes." Exh. 2B at 406-408. 22 Four months later, the prosecutor filed a supplemental motion arguing that, pursuant to

23 People v. Steele, 27 Cal. 4th 1230 (2002), the evidence was admissible to show the killing was not 24 an accident and petitioner acted with premeditation and deliberation. Citing Steele, the prosecutor 25 argued that "`[t]he least degree of similarity between the crimes is needed to prove intent.'" See id. 26 at 1244. He noted that in both the McCready incident and the Worcester murder, petitioner chased 27 the victim with an accomplice, knocked the victim to the ground, beat the victim, and robbed the 28
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1 victim. The prosecutor argued that the McCready incident was admissible because it was not only 2 similar to the crime charged, but it occurred close in time to the charged crime. He also argued that 3 the evidence had a reduced risk of prejudice because McCready was not killed and the crime was 4 confirmed by petitioner's guilty plea. Exh. 2B at 475-479. 5 Petitioner filed an opposition, arguing that the crimes were not sufficiently similar to show

6 modus operandi. He argued that the evidence was cumulative because intent could be inferred from 7 the act itself. Moreover, he argued that any probative value was outweighed by its prejudicial effect. 8 Exh. 2B at 480-484. 9 The trial court held a hearing on the matter. Defense counsel argued that the prosecution

10 was trying to introduce propensity evidence. In particular, he focused on petitioner's statements to 11 police: petitioner claimed he did not participate in the McCready robbery (despite his plea to assault 12 with force likely to cause great bodily injury); he said he did not get involved in other people's 13 business; he merely stood by while McCready was assaulted; and he repeatedly said he "did not give 14 a fuck" whether strangers were attacked. Exh. 3D at 154-155; see Exh. 5 (People's Exh. 112-A). 15 Defense counsel argued that Steele was distinguishable because the crimes in the present matter 16 were less similar. Defense counsel also argued that the evidence was cumulative. Exh. 3D at 17 156-161. 18 The prosecutor argued that since petitioner would not concede that the murder was

19 deliberate or premeditated, and there would be evidence that petitioner claimed the shooting was 20 accidental, it could not rely on petitioner's conduct to prove intent. Therefore, the evidence was not 21 cumulative and was necessary to prove intent. Exh. 3D at 161. 22 The trial court indicated that it had reviewed Steele, as well as some other cases. Exh. 3D

23 at 165. The court then stated: 24 25 26 27 28
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It does appear here that we are talking about an intent, an analysis regarding intent, not regarding identity, and the facts of intent to kill or premeditation or deliberation are all at issue in this case . . . . The Court also looks at the doctrine of chances, which is . . . referred to in the Steel[e] case, the doctrine that the more often one does something, the more likely that something was intended and even premeditated, rather than accidental or spontaneous." Exh. 3D at 166. "It is not on exactly all fours in

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1 2 3

the facts with this case, but the Court does find that the probative value of that case occurring this close in time with that collection of common factors, that the probative value of that case is greater than the prejudicial value of allowing in that evidence, and so the Court is going to allow in the evidence regarding the Ledia McCready assault . . . .

4 Exh. 3D at 167. 5 Two weeks later, the prosecutor sought guidance from the trial court regarding how much

6 evidence he could introduce regarding the McCready incident. Exh. 3H at 364. Defense counsel 7 argued that there was evidence that petitioner did not participate in the assault--only in searching 8 McCready's pockets. He also argued that there was no logical connection between petitioner saying 9 he did not care about strangers and having the intent to shoot Worcester. Exh. 3H at 366-369. 10 The prosecutor argued that petitioner's statement that he "did not give a fuck about

11 strangers" was: 12 13 14 15 16 17 18 19 Exh. 3H at 368. 20 21 22 23 24 The trial court ruled: [T]he Court does find that [petitioner's statements] can be relevant and admissible on issues related to intent, and in that regard thinks that the fact of the timing of these being after the incident with Mr. Worcester and Mr. LaBonte, that the fact that the timing is afterwards is not fatal to their relevance on the issue of intent. So the Court does not find it is simply character evidence, but finds that it could be relevant on the issue of intent. So the defendant's statements to the inspector with regard to this incident are allowed. [P]retty good evidence of his intent, his intent at that event itself and as it relates to the question: Was the killing of Mr. Worcester, a total stranger to him, an accident? "Sorry, didn't mean to kill you," total stranger on the ground, or "I intend to kill you, total stranger on the ground, because I don't care about your life. You mean nothing to me because I don't know you." This was not an accidental killing, it was not an "I'm not sure why I killed him." Reasons are not apparent to me. This is a premeditated, cold, deliberate killing, and his own words help focus down on the truth of his intent. We don't have to guess, because we have his own words, Your Honor, focusing his intent when he commits a crime, a violent crime, against a stranger, a robbery and an assault against a total stranger, chased down, put to the ground.

25 Exh. 3H at 370-371. 26 Robert Shay testified that on April 16, 2000, at 8:00 p.m., he was in the passenger seat of

27 a car which was traveling west on 16th Street near Harrison Street in San Francisco. He saw three 28
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1 men standing over a woman who was lying in the middle of the street. They were beating her up. 2 He saw one person kick her. Another person removed her shoes. Twenty minutes later, Shay 3 identified petitioner as one of the three men in a cold show. But he could not make the identification 4 in court. Exh. 4E at 1027-1040, 1055. Defense counsel did not cross-examine Shay. 5 Ledia McCready testified she was attacked by three men near 16th Street and Bryant

6 Street. She heard their voices while they ran towards her. She fell down as they came up to her, and 7 they hit and kicked her while she lay on the ground. She suffered three bruised ribs and a broken 8 rib; her face was black and blue. She could not identify petitioner at trial. Exh. 4E at 1043-1050. 9 Defense counsel did not cross-examine McCready. 10 Officer Malcolm Anderson testified he responded to the 911 call regarding McCready.

11 McCready looked like she had been beaten badly on the head and had a black eye. Officer Anderson 12 was present at a cold show a few minutes after the attack; Shay identified petitioner and the two 13 accomplices as the assailants. Exh. 4E at 1052-1056. Defense counsel did not cross-examine 14 Officer Anderson. 15 Defense counsel reminded the trial court of his objection to the preceding evidence. Exh.

16 4E at 1058. He indicated that he had asked the trial court off the record to instruct the jury with 17 CALJIC No. 2.50 (Evidence Of Other Crimes) at the end of trial rather than before introduction of 18 the evidence. Exh. 4E at 1058. The trial court indicated that the prosecutor had asked off the record 19 that the instruction be given contemporaneously, but it had decided to wait until the end of trial. 20 Exh. 4E at 1059. 21 A short while later, defense counsel argued again that petitioner's statement to police that

22 "he did not give a fuck" about strangers was "pure propensity evidence." Exh. 4E at 1133. The trial 23 court declined to change its ruling on the admissibility of petitioner's statement. Exh. 4E at 24 1134-1135. 25 A month later, defense counsel again argued that petitioner's statement to police should

26 be excluded. Exh. 4Q at 2627-2629. The trial court ruled that one-and-a-half pages of the 27 three-page transcript would be admitted. Exh. 4Q at 2629. Defense counsel restated his objection. 28
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1 Exh. 4Q at 2631. 2 Inspector William Canning testified he was involved in the investigation of the assault on

3 McCready on April 16, 2000. Exh. 4Q at 2636. He spoke to petitioner that evening at the police 4 station. Exh. 4Q at 2636-2637. The conversation with petitioner was recorded on a cassette tape. 5 Exh. 4Q at 2639. Exhibit 112 was played for the jury. Exh. 4Q at RT 2641. The jury heard 6 petitioner tell Inspector Canning, "Where I'm from, you don't get into nobody's business . . . . If it 7 ain't my folks, if it ain't my folks, I don't give a fuck." Exh. 5 (People's Exh. 112-A at 1-2). He then 8 repeated five more times, "If it ain't my folks, I don't give a fuck." Id. at 2. 9 10 11 12 During closing argument, the prosecutor argued: So when you're trying to answer the question did this man accidentally kill or intend to kill Shayne Worcester, remember, his assault of Ledia McCready in April of 2000, as well as his assault of Ray LaBonte two hours before he killed Shayne Worcester, you can use that information just for this purpose: to help you answer the intent question.

13 Exh. 4X at 3251. 14 At the close of evidence, the trial court instructed the jury in the language of CALJIC No.

15 2.50 as follows: 16 17 18 19 20 21 22 23 24 25 Exh. 2C at 721. 26 27 28
Memo. of Pts. and Auths. In Support of Answer to Pet. for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent to kill which is a necessary element of the crime charged. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.

B.

California Court Of Appeal Opinion

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1.

Evidence Of McCready Incident

The Court of Appeal ruled that the evidence of the McCready incident was admissible

3 under California law. Exh. 9 at 16. The court found that there were sufficient similarities between 4 the McCready incident and the charged offenses to admit the evidence as to petitioner's intent or 5 deliberation in killing Worcester. Id. The court noted that the beating of McCready in particular 6 "reflected an intent to injure a complete stranger beyond what was necessary to perpetrate the 7 robbery, and supported the argument that Mooring not only intended to rob Worcester, but wanted 8 to hurt him as well." Id. at 16-17. The court observed that petitioner's intent was material to the 9 murder charge because there was testimony that the shooting was accidental or unintentional. Id. 10 at 17. 11 The court additionally found that, under California law, the probative value of the

12 McCready incident was not outweighed by its potential prejudicial effect. Exh. 9 at 18. The court 13 found that because the McCready incident did not involve a shooting or killing, it was not more 14 inflammatory or egregious than the shooting of Worcester. Id. The court also noted that the 15 evidence had an adequate degree of reliability because petitioner had pleaded guilty to assaulting 16 McCready. Id. at 18-19. Petitioner's guilty plea also meant that the jury would not be distracted 17 by having to determine whether the McCready incident actually occurred, and would not be tempted 18 to convict petitioner of the Worcester murder to ensure punishment on the McCready incident. Id. 19 at 19. Finally, the court noted that "the trial court instructed the jury, in accordance with CALJIC 20 No. 2.50, to use the evidence only as it related to Mooring's intent, and not as evidence of bad 21 character or predisposition." Id. at 19. 22 23 2. Evidence Of Petitioner's Statement To The Police

The Court of Appeal questioned whether petitioner's statement to the police after the

24 McCready incident that he "`[didn't] give a fuck' about people who [were] not his `folks'" was 25 really probative of his intent in shooting Worcester. Exh. 9 at 20. The court found that, assuming 26 it was error to admit the statement, the error was harmless. Id. at 22. The court evaluated the error 27 under the state law standard of harmless error review rather than the federal constitutional standard, 28
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1 finding that "[t]he statement was not wholly irrelevant or so highly prejudicial that it rendered the 2 trial fundamentally unfair and violated Mooring's federal due process rights." Id. (citing McKinney 3 v. Rees, 993 F.2d 1378 (9th Cir. 1993)). 4 C. 5 6 7 The Court Of Appeal's Decision Did Not Constitute An Unreasonable Application Of Supreme Court Law 1. Standard For Reviewing Evidentiary Claims On Federal Habeas

The admission of evidence violates due process "[o]nly if there are no permissible

8 inferences the jury may draw from the evidence . . . . Even then, the evidence must `be of such 9 character as necessarily prevents a fair trial.'" Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 10 1991). In other words, even if evidence is not clearly probative, its admission does not violate due 11 process unless the evidence was so prejudicial as to render the trial fundamentally unfair. Romano 12 v. Oklahoma, 512 U.S. 1, 12-13 (1994). The admission of other crime evidence in particular does 13 not violate due process when the trial court gives a limiting instruction and retains its discretion to 14 limit or forbid the admission of particularly prejudicial evidence. Spencer v. Texas, 385 U.S. 554, 15 561 (1967). 16 17 2. Evidence Of McCready Incident

Petitioner has failed to demonstrate how the admission of the McCready incident violated

18 his due process rights. As the California Court of Appeal found, petitioner's extreme use of force 19 against McCready evidenced "an intent to injure a complete stranger beyond what was necessary 20 to perpetrate the robbery, and supported the argument that Mooring not only intended to rob 21 Worcester, but wanted to hurt him as well." Exh. 9 at 16-17. The evidence was therefore probative 22 of a material issue in the case--petitioner's intent to kill Worcester. As the jury could draw a 23 permissible inference from such evidence, its admission did not violate due process. Jammal, 926 24 F.2d at 920. 25 Additionally, before admitting such evidence, the trial court determined that its probative

26 value was not outweighed by its potential prejudicial effect. Also, at the end of trial, the court 27 instructed the jury that it could consider such evidence only as it related to petitioner's intent, and 28
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1 not as evidence of bad character or predisposition. Given this exercise of discretion and limiting 2 instruction by the trial court, the admission of the McCready incident did not violate due process. 3 Spencer, 385 U.S. at 561; Williams v. Stewart, 441 F.3d 1030, 1040 (9th Cir. 2006). 4 Even assuming such evidence was not clearly probative of any issue in the case, it was not

5 so prejudicial as to deny petitioner a fair trial. As the Court of Appeal found, because the McCready 6 incident did not involve a shooting or killing, it was not more inflammatory than the Worcester 7 shooting. In addition, because petitioner pleaded guilty to assaulting McCready, such evidence had 8 an adequate degree of reliability, and reduced any danger of the jury convicting petitioner simply 9 to punish him for the McCready assault. Accordingly, because the McCready evidence was not so 10 prejudicial as to render the trial fundamentally unfair, petitioner was not denied due process. 11 Romano, 512 U.S. at 12-13. For these same reasons, the admission of the McCready incident did 12 not have a substantial or injurious effect on the verdict. Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007). 13 14 3. Evidence Of Petitioner's Statement To The Police

Petitioner has also failed to demonstrate how the admission of his statement to the police

15 that he "`[didn't] give a fuck' about people who [were] not his `folks'" violated his due process 16 rights. Although the California Court of Appeal questioned whether petitioner's statement was 17 really probative of his intent to kill Worcester, and assumed it was error to admit such statement, 18 it also concluded that its admission did not violate due process. More specifically, it found that 19 "[t]he statement was not wholly irrelevant or so highly prejudicial that it rendered the trial 20 fundamentally unfair and violated Mooring's federal due process rights." Exh. 9 at 22 (citing 21 McKinney, 993 F.2d 1378). Such conclusion was not unreasonable. 22 The introduction of petitioner's statement to the police was not so prejudicial as to render

23 petitioner's trial fundamentally unfair. Romano, 512 U.S. at 12-13; see Hamilton v. Vasquez, 17 24 F.3d 1149, 1159 (9th Cir. 1994). The statement was not particularly shocking or damning, 25 especially in relation to the other evidence presented at trial. Moreover, the trial court cautioned the 26 jury against using the evidence to infer bad character or criminal disposition. Exh. 2C at 721. In 27 sum, this was not a "case in which the statements at issue are so clearly prejudicial that a curative 28
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1 instruction could not mitigate their effect." Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en 2 banc). 3 Finally, given the overwhelming evidence of guilt presented at trial, the introduction of

4 petitioner's statement did not have a substantial or injurious effect on the verdict. Fry, 127 S. Ct. 5 at 2328. The Court of Appeal summarized the case against petitioner as follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Exh. 9 at 22-23. Given the strong case against petitioner, it cannot be shown that the introduction 23 of his statement to the police had a substantial or injurious effect on the verdict. 24 /// 25 /// 26 /// 27 /// 28
Memo. of Pts. and Auths. In Support of Answer to Pet. for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

The evidence against Mooring was substantial if not overwhelming. Kennedy and Edwards testified Mooring was with them as they drove San Francisco streets looking for someone to rob. As to the LaBonte robbery and assault, Edwards testified that he and Mooring robbed LaBonte and Mooring struck LaBonte in the face with the .22-caliber rifle. Kennedy also testified that Mooring got out of the car with the rifle, returned to the car with the rifle, and said "a bullet fell out" when asked why he hit LaBonte. As to the Worcester shooting, Edwards offered that Mooring and Collier got out of the car when they saw Worcester and Farley, he heard the sound of gunshots, and then Mooring and Collier ran back to the car. Kennedy testified that Mooring and Collier got out of the car, Mooring had Kennedy's gun, Kennedy heard the sound of his gun firing, Mooring had the gun when they ran back to the car, and Mooring said "I don't know" when Collier asked why he shot Worcester. According to Investigator Olsen, Edwards claimed that Mooring had admitted shooting Worcester, albeit by accident. According to Kennedy and Kennedy's mother (Williams), when Williams asked Mooring if he perpetrated the Worcester shooting, he replied to the effect of, "Yeah, I did it." Beteast recalled Mooring saying he robbed and shot a tourist because he needed money. Mooring's own statements to the police were incriminating as well, as he essentially acknowledged he was at the scene and claimed that by explaining what happened he would be "incriminating [him]self." We recognize there were witness credibility issues and strenuous defense arguments as to the identity of the person who actually shot Worcester. Mooring's culpability, however, did not turn on whether he was the actual shooter. Based on the record we review, it is not reasonably probable that the outcome of trial would have been more favorable to Mooring if the evidence of his statement to police had been excluded. Mooring has failed to establish reversible error.

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1 /// 2 3 4 5 6 Petitioner next contends that his confrontation rights under Crawford v. Washington, 541 III. THE INADVERTENT ADMISSION OF HEARSAY THAT WAS IMMEDIATELY STRICKEN FROM THE RECORD DID NOT VIOLATE PETITIONER'S CONFRONTATION RIGHTS UNDER CRAWFORD

7 U.S. 36 (2004) were violated when a police investigator inadvertently violated a court order and 8 testified about a hearsay statement made by a confidential informant. However, because the trial 9 court immediately struck the hearsay from the record and instructed the jury not to consider it, no 10 confrontation violation is shown. 11 12 A. Trial Court Proceedings Before trial, the parties argued about whether the prosecutor should be allowed to elicit

13 evidence from Inspector Wynkoop regarding a confidential informant's role in identifying petitioner 14 as the person who shot Worcester. The trial court ruled: 15 16 17 18 19 20 Clearly, if there are questions that invite hearsay responses that the Court has already ruled are not going to be allowed in, those are not going to be allowed in and counsel on both sides are already on notice of the issues that the Court has ruled about in that regard from prior hearings. The Court heard an in-camera hearing related to the motion to disclose a reliable informant. The Court made orders at that time. Those orders still stand with regard to what was not to be disclosed and what was not to be revealed with regard to this. The Court does not find any infirmity in what the district attorney has proposed with regard to the opening statement and what he anticipates to prove related to that.

21 Exh. 4A at 451. 22 During his opening statement, the prosecutor told the jury that Inspector Wynkoop met

23 with "Bobby" in the course of his investigation. Exh. 4A at 479. "After that meeting, the police had 24 a photograph from Bobby of Mr. Mooring, a torn photograph. And they leave the meeting with 25 Bobby. But they have this torn photograph. You'll see it. We still have it. Of the defendant." Id. 26 The prosecutor called Inspector Wynkoop to testify three weeks later. He testified that

27 he met with Bobby and her male friend at the Bashful Bull restaurant on September 8, 1999. Exh. 28
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1 4L at 2122. The prosecutor asked Inspector Wynkoop if Bobby gave him "anything tangible that 2 you took away from the meeting." Id. at 2124. He answered, "She gave me a photograph of an 3 individual that she said was responsible for the killing." Id. at 2125 (italics added). Defense 4 counsel immediately objected and requested a mistrial. The trial court called a recess. Id. 5 6 7 8 9 10 11 12 13 Exh. 4L at 2126. 14 The prosecutor argued, "I consider the answer given an unintentional slip by the witness During an in camera hearing, defense counsel argued as follows: What has always been clear is that no hearsay that has been provided by Bobby is admissible in this trial ever . . . . [Inspector Wynkoop stated he received] a torn photograph, of our client, Mr. Mooring. And with the added comment from the inspector that it was a picture of the person responsible, therein lies the rub. That is the inadmissible hearsay. That is the information that has been barred from this trial, and that is . . . a bell that cannot be unrung by any curative instruction. It is an out-of-court identification of a perpetrator of the charges in this case, someone who we have made a motion concerning, we have been denied access to, and now, specific court orders have been violated. Whether it is by intention or otherwise, it certainly has undermined our ability to defend Mr. Mooring, and we would ask the Court to grant a mistrial at this time.

15 because of my instructions to him. I do believe that an instruction from you that the information 16 should be disregarded would be curative, and the law does recognize that you have the power to cure 17 something inadvertent like that." Exh. 4L at 2127. 18 The trial court asked, "Has that photograph been admitted into evidence?" Exh. 4L at

19 2127. The prosecutor stated the photograph had been referred to by two witnesses. Id. Both 20 defense counsel indicated that an enlargement of the photograph had already been held up to the 21 jury. Id. at 2127-2128. 22 The trial court asked counsel to put on the record what had been discussed in chambers

23 prior to Inspector Wynkoop testifying. Exh. 4L at 2130. Defense counsel indicated that the 24 evidence suggested that Bobby was probably Leslie Devlin, Kennedy's long-term girlfriend. Id. at 25 2130-2131; see also Exh. 4J at 1820-1821. He went on to argue: 26 27 28
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The Court is aware that, and I believe the Court has always advised the prosecution very clearly, that you cannot elicit hearsay evidence concerning this meeting . . . . [W]e weren't going to make that identification of that DMV photo, that link between Leslie who has, through the testimony of Willie

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Kennedy, been portrayed as a nexus for all four of these people at a motel room on the western part of Lombard Street going towards the bridge . . . . [N]ow the People have, whether by design or otherwise, have gone over the line, and they have elicited hearsay connecting a photo, which the jury is fully informed of both in its small size and its enlarged size, that has been identified on the record as that of Daniel Mooring, and that she identified him as the perpetrator. Rank hearsay. We moved for a mistrial at that time in what we thought was a timely fashion, and this, we believe, is not the kind of evidence that we routinely see in courts. This is the type of evidence that we are vigilant in guarding against, carefully guarding against. Exh. 4L at 2133-2134.

8 The prosecutor stated, "I do not know for certain that this person, Leslie Devlin, is 9 Bobby." Exh. 4L at 2135. He added that Inspector Wynkoop, who met Bobby, did not know that 10 for sure either. Id. at 2135-2136. 11 Defense counsel added, "Another thing that was discussed in chambers, and everyone was 12 warned about, was not to elicit hearsay." The trial court replied, "Right." Exh. 4L at 2136-2137. 13 Later, it added, "I also indicated that there was not to be any hearsay elicited from the inspector with 14 regard to the conversation that he had with the person known to him as Bobby. And it is that, it is 15 a violation of that order that has, I assume, caused the request for the mistrial." Id. at 2140. Defense 16 counsel replied, "Yes." Id. The trial court indicated that the prosecutor did not ask the inspector to 17 tell what Bobby said, "but in response to that question, he provided very significant hearsay 18 information from this person Bobby . . . . [¶] I do view this as a very serious breach of a court 19 order regarding the hearsay issue on what is clearly a very important issue in the trial." Id. 20 The next day, the trial court observed that "I note that in this testimony of Inspector 21 Wynkoop, that he does not make reference to a torn photograph. He only says, `She gave me a 22 photograph,' and that was an issue that I looked at, because I was aware of that connection to that 23 other photograph." Exh. 4M at 2152-2153. The prosecutor conceded that the hearsay statement was 24 an error that needed to be cured, but "[t]he error can be cured by an instruction." Id. at 2163-2164. 25 The trial court ruled, "I think there are remedies in this case short of a mistrial that can be 26 appropriate. Had the inspector, in his testimony, actually identified the photograph of the defendant, 27 if that link had been made, I think it's a much stronger argument for a mistrial. That link has not 28
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1 been made." Exh. 4M at 2166. The court went on: 2 3 4 5 6 7 Id. at 2167. The trial court concluded: 8 9 10 11 12 13 Id. at 2174-2176. 14 15 16 17 18 19 20 21 22 23 24 Exh. 4M at 2178. 25 26 27 28
Memo. of Pts. and Auths. In Support of Answer to Pet. for Writ of Hab. Corpus Mooring v. Walker C 07-5013 SI (pr)

I don't think that that statement, in and of itself, is enough of a link to the defendant in this case to have caused damage of constitutional dimension in all of the circumstances of this case . . . . She does not make reference to it being a torn photograph. I think that might also have been a problem, given that the photograph of the defendant is the only one that appears to have been a torn photograph, that I'm aware of, at least. But she doesn't do that.

The Court is going to strike and order the jury to disregard all of the evidence with regard to Bobby, not only ­ now, I don't believe anybody else has talked about it except Inspector Wynkoop . . . . That all of his testimony with regard to Bobby is stricken and is to be disregarded. That includes not just the one statement that he said at the end, but it includes his meeting with her, his descriptions of her. The entire information regarding Bobby is stricken.

The trial court admonished the jury: Ladies and gentlemen, due process of law requires that the evidence received in a trial meet certain standards. For example, witnesses must be sworn to tell the truth and must be subject to cross-examination. A witness may generally testify about events the witness has seen or heard. A witness is generally not allowed to testify about statements the witness has heard from others because such statements, known as hearsay, are not under oath and are not subject to cross-examination. Such statements are only admitted in certain limited and specific situations where the law allows it. In this case, Inspector Wynkoop violated a direct court order by testifying to certain hearsay information. The defense properly objected and I sustained their objection. You are now instructed to completely disregard that portion of Inspector Wynkoop's testimony which discussed his meeting at the Bashful Bull restaurant on September 8, 1999. You are not allowed to consider or discuss that testimony in any way in your deliberations. Treat it as though you had never heard it at all.

A little while later, the trial court instructed the jury: Ladies and gentlemen, you are instructed to completely disregard all testimony in this case relating to People's Exhibit 103 and 103-A [the small and enlarged photographs of appellant]. You are not allowed to consider or discuss that testimony in any way in your deliberations. Treat it as though you had

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1

never heard it at all.

2 Exh. 4M at 2220. 3 4 B. California Court Of Appeal Opinion The Court of Appeal found that Crawford did not apply. The court noted that in

5 Crawford, "the jury was permitted to consider testimonial hearsay in deciding whether the defendant 6 was guilty," whereas here, "the jury was precluded from considering testimonial hearsay in deciding 7 Mooring's guilt." Exh. 9 at 27. The court concluded that the issue before it "is not whether 8 Mooring was prejudiced by the use of testimonial hearsay evidence against him, but whether the trial 9 court took adequate steps, including striking the evidence, to prevent such use. The adequacy of the 10 court's curative efforts is generally a matter of state law." Id. 11 The court went on to find that the trial court did not abuse its discretion by taking

12 corrective action and denying petitioner's motion for a mistrial. Exh. 9 at 31. First, the court noted 13 that the "jury likely understood from the beginning that [the] legitimacy [of the statement] was in 14 doubt" given that an objection was promptly made, recess taken, and the jury swiftly admonished 15 to disregard the statement. Id. at 28. Second, the court found that the statement was "not extremely 16 prejudicial" because "it is unlikely the jury would have given the statement much relative weight." 17 Id. at 29. More specifically, "Wynkoop's statement that Bobby gave him a photograph of the 18 responsible person--without the jury seeing who was pictured in the photograph, hearing from any 19 witness it was a photograph of Mooring, or learning any basis for Bobby knowing who was 20 responsible--pales in comparison to the other evidence that Mooring was in fact the shooter." Id. 21 at 28-29. Third, the court noted the following: 22 23 24 25 26 27 Id. at 29 (citations omitted). 28
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As to the court's curative efforts, it is generally presumed that striking evidence and admonishing the jury cures evidentiary error. Here, the court's striking of the evidence and admonition were prompt, clear, and allencompassing: no consideration of Inspector's Wynkoop's testimony concerning Bobby. Because Inspector Wynkoop was the only source of evidence about informant "Bobby," the admonition effectively eliminated Bobby from the trial. There is no indication in the record that the admonition was insufficient."

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The court rejected petitioner's argument that the trial court's remedy was inadequate

2 because "the judge erroneously believed no connection had been made between the photograph 3 Bobby gave Inspector Wynkoop and the photograph of Mooring, which had been shown to the jury," 4 when in fact, "the prosecutor had made this connection in his opening statement three weeks 5 earlier." Exh. 9 at 29. The court found the argument unpersuasive for three reasons. First, the trial 6 court correctly understood "that there was no link in Wynkoop's testimony between the photograph 7 of the person responsible for the killing and the photograph of Mooring." Id. at 29