Christian v. Bissen, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
TARYN CHRISTIAN,
Petitioner,
vs.
IWALANI WHITE, Director, State
of Hawaii Department of Public
Safety,
Respondent.
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CV. NO. 04-00743 DAE-LEK
ORDER ADOPTING IN PART AND MODIFYING IN PART
THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART THE PETITION FOR WRIT OF
HABEAS CORPUS; AND ORDER DENYING RESPONDENT’S AND
PETITIONER’S OBJECTIONS TO PORTIONS OF MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATIONS
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing Respondent’s and Petitioner’s
Objections, and the supporting and opposing memoranda, the Court DENIES
Respondent’s Objections (Doc. # 148) to the Magistrate Judge’s Findings and
Recommendation to Grant in Part and Deny in Part Petition for Writ of Habeas
Corpus, filed on August 29, 2008 (hereinafter “F&R”, Doc. # 146) and DENIES
Petitioner’s Objection to Portions of Magistrate Judge’s F&R. (Doc. # 149).
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This Court previously ADOPTED the F&R with respect to allowing
Petitioner to choose between dismissal of the entire petition or amending the
petition to delete two unexhausted claims. (Doc. # 151.) Petitioner amended the
petition by deleting the unexhausted claims. (Doc. # 152.) This Court now
ADOPTS in PART and MODIFIES in PART the remainder of the F&R. The F&R
is modified only with respect to the basis for denying the portion of Ground Three
that was based on handwriting and stereo equipment claims. This Court
MODIFIES that portion as set forth below, which in general holds that the
handwriting and stereo equipment claims were based upon both the theft
conviction and the murder conviction. As such, this Court has habeas jurisdiction
to consider such claims. Nevertheless, these claims fail because Petitioner has not
met his burden of providing evidence that his counsel’s assistance fell below the
objective standard of reasonableness or that he suffered prejudice.
BACKGROUND
This Court repeats only the background facts necessary for a decision
on the objections to the F&R in the discussion section below. The facts set forth
herein were those found by the Magistrate Judge after an evidentiary hearing.
Additional background facts are contained in the F&R.
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In 1997, Petitioner was convicted of one count of murder in the first
degree, one count of use of a deadly or dangerous weapon in the commission of the
crime, and one count of theft in the third degree in connection with the stabbing
death of Vilmar Cabaccang. Petitioner was sentenced to concurrent sentences of
life imprisonment with the possibility of parole, five years imprisonment, and one
year imprisonment, respectively.
Petitioner filed an Amended Petition pursuant to 28 U.S.C. § 2254 on
September 29, 2008. The Amended Petition alleges, inter alia, the following
grounds for habeas relief which are at issue in the objections filed: 1) deprivation
of Petitioner's right to testify on his own behalf (“Ground One”); 2) improper
exclusion of testimony by three witnesses that James Burkhart confessed to killing
Cabaccang (the “Burkhart confessions”) (“Ground Two”); 3) ineffective assistance
of trial counsel based on various actions and omissions by counsel (“Ground
Three”); and 4) actual innocence (“Ground Four”).
Although the original petition was a mixed petition, the Magistrate
Judge considered the arguments on the exhausted claims, assuming that Petitioner
would file an Amended Petition. The Magistrate Judge recommended that the
Petition be granted with respect to Ground Two because the exclusion of the
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Burkhart confessions was contrary to clearly established federal law. (Doc. # 146).
The Magistrate Judge denied the Petition with respect to all other grounds.
Both parties filed objections on September 9, 2008. (Docs. #148,
149.) Petitioner filed a response to Respondent’s objections on September 22,
2008. Petitioner filed an amended petition on September 29, 2008, deleting the
unexhausted claims.
STANDARD OF REVIEW
Any party may serve and file written objections to proposed findings
and recommendations. See 28 U.S.C. § 636(b). Pursuant to Local Rule 74.2,
when a party objects to a magistrate judge’s dispositive order, findings, or
recommendations, the district court must make a de novo determination. A de
novo review means “the court must consider the matter anew, the same as if it had
not been heard before and as if no decision previously had been rendered.” U.S.
Pac. Builders v. Mitsui Trust & Banking Co., 57 F. Supp. 2d 1018, 1024 (D. Haw.
1999) (citation omitted).
“The court may ‘accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.’ The court also may receive
further evidence or recommit the matter to the magistrate with instructions.”
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McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981) (citation omitted); LR 74.2.
DISCUSSION
Because Petitioner filed an amended petition deleting the unexhausted
claims, this Court will now address the objections on the merits by both parties.
I. 	Respondent’s Objections
Petitioner sought to admit at trial the testimony of three persons,
William Auld, Patricia Mullins, and Robert Boisey Pimentel, who would state that
Burkhart confessed to killing Cabaccang. Trial counsel made an offer of proof as
to testimony of William Auld and Patricia Mullins. Auld shared a jail cell with
Burkhart in 1995 (the same year as the June 1995 murder of Cabaccang) and Auld
would testify that Burkhart admitted to stabbing Cabaccang. Burkhart also told
Auld that he liked the feel of Cabaccang’s blood running down his hands and arms.
Mullins was a friend of Burkhart’s and she had known the victim
Cabaccang for a long time. She would testify, inter alia, that she had a
conversation with Burkhart about two days after the murder, and he confessed to
her that he was the one who killed Cabaccang. Burkhart told her that he would get
away with it because Cabaccang’s girlfriend, Serena Seidel, would not identify him
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1 There was apparently evidence that Seidel had a relationship with Burkhart.
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as the killer. 1 Subsequently, Mullins saw Burkhart and he told her “you better keep
your mouth shut” and “you better not rat on me.”
Trial counsel argued to the trial court that the following evidence
constituted corroborating circumstances, indicating that the Burkhart confessions
were reliable under Hawaii Rule of Evidence 804(b)(3):
-Tesha Santana, Cabaccang’s neighbor, was a friend of Burkhart’s and
he was supposed to come to her house on the night in question, thus showing that
he was expected to be in the neighborhood;
-Cabaccang’s car was opened with his keys and Petitioner did not
have access to the keys because he did not know either Cabaccang or his girlfriend,
Serena Seidel;
-Robert Boisey Pimentel would testify that Burkhart had an unusual
knife that matched descriptions of the knife used in the attack on Cabaccang;
-Judith Laury would testify that Seidel did not call for help, but
repeatedly yelled Tesha, which trial counsel argued showed she wanted Burkhart's
friend Tesha Santana there because Burkhart was at the scene;
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-Jennifer Santana would also testify that, within a couple of weeks
after the stabbing, they received two calls warning Tesha to keep her mouth shut
because Tesha had made comments suggesting that Burkhart was involved in the
stabbing;
-Auld’s and Mullins’ statements corroborate each other.
The prosecutor argued that the defense had not established
corroboration or the trustworthiness of the statements. The prosecutor’s arguments
included: Burkhart had a motive to lie to try to impress Auld and Mullins; both
Auld’s and Mullins’ credibility was questionable because both were incarcerated at
one point in time; Seidel testified that she did not know Burkhart; and none of the
witnesses picked Burkhart’s picture out of the photographic line-ups. Further,
Burkhart gave a statement to a detective denying involvement in the stabbing. The
prosecutor also represented that Helen Beatty Auweloa could testify that Burkhart
was someplace else on the night of the stabbing. Finally, the prosecutor argued
that the fact that Cabaccang’s keys were at the scene did not prove anything and
the defense’s witness could not recall sufficient information about Burkhart’s knife
to identify it as the one at the scene.
In excluding the testimony of the various witnesses, the trial court
found that the requirements for Hawaii Rule of Evidence 804(b)(3) were not met
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because the trustworthiness of the statements was not clearly demonstrated. The
Hawaii Supreme Court affirmed. After holding an evidentiary hearing on the
instant Petition, the Magistrate Judge held that the Petition should be granted with
respect to Ground Two because the exclusion of the proposed testimony about the
Burkhart confessions was contrary to clearly established federal law.
Respondent objects to this finding. Respondent first argues that the
Magistrate Judge erred because she focused on the trial court’s decision to exclude
the confessions, but did not closely examine the Hawaii Supreme Court’s
judgment, which was the last reasoned state judgment. Respondent next argues
that the Magistrate Judge erred in finding that the Hawaii Supreme Court’s
decision was contrary to clearly established federal law because the Hawaii
Supreme Court identified the correct legal rule set forth in Chambers v.
Mississippi, 410 U.S. 284 (1973) and applied the rule correctly. Respondent
further avers that the exclusion of the Burkhart confessions did not have an
injurious effect or influence on the jury’s verdict. Finally, Respondent argues that
the Magistrate Judge erred in making a factual finding that there was testimony at
trial that Burkhart was somewhere else at the time of the incident. Therefore,
Respondent asserts that the F&R to grant the petition on this ground should be
rejected and the petition should be denied.
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A. 	Unreasonable Application Finding
Respondent contends that the Magistrate Judge did not properly
consider the Hawaii Supreme Court’s affirmance of the trial court’s exclusion of
the Burkhart confessions. Respondent does not further flesh out this particular
argument. It is clear to this Court that the Magistrate Judge did consider the
Hawaii Supreme Court’s decision. Indeed, that decision is cited numerous times
and referred to throughout the F&R. (See F&R at 3-4, 41-42, 45.) Nevertheless,
as acknowledged by Respondent, the trial court’s reasoning is relevant.
Accordingly, this objection does not provide a basis for finding in Respondent’s
favor.
Respondent avers that that the Hawaii Supreme Court’s affirmance of
the trial court’s decision to exclude the Burkhart confessions was not an
unreasonable application of the federal law established in Chambers v. Mississippi,
410 U.S. 284 (1973) because the Burkhart confessions were hearsay that did
contain a sufficient indicia of reliability. Instead, Respondent asserts that the
corroborating circumstances presented by Petitioner’s trial counsel constituted
mere argument, were speculative and lacked connection with the murder, and
therefore, it was appropriate to exclude the evidence. In addition, Respondent
avers, there was no evidence that Burkhart was observed at the crime scene, his
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confessions were not written or recorded, there was no corroboration of Pimentel’s
potential testimony, Mullins’ and Auld’s testimony would have been diminished
because the prosecution had two witnesses that could have testified that Burkhart
was somewhere else, and Burkhart was unavailable and did not testify.
“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (internal quotation marks and citations omitted). “The right of an
accused in a criminal trial to due process is, in essence, the right to a fair
opportunity to defend against the State's accusations [and the] rights to confront
and cross-examine witnesses in one’s own behalf have long been recognized as
essential to due process.” Chambers, 410 U.S. at 294.
However, “state and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal trials[,]” including
evidence that someone else committed the crime, as long as those rules serve a
legitimate purpose or are not “disproportionate to the ends that they are asserted to
promote[.]” Holmes, 547 U.S. at 324-25.
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In Chambers, the state’s evidentiary rules barred parties from
impeaching their own witnesses, and did not include an exception to the hearsay
rule for statements against penal interest. The Supreme Court held that the
defendant’s due process rights were violated because these two evidentiary rules
worked to bar the defendant from introducing evidence that another person,
McDonald, had made self-incriminating statements to three other persons, and
prevented the defendant from cross-examining McDonald. Chambers, 410 U.S. at
302.
At issue here is the State court’s application of Hawaii Rule of
Evidence 804(b)(3), which provides that hearsay statements are inadmissible but
that statements against interest are not excluded if the declarant is unavailable as a
witness. The rule defines a statement against interest as follows:
A statement which was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the
declarant’s position would not have made the statement
unless the declarant believed it to be true.
Haw. R. Evid. 804(b)(3). The rule further provides that “[a] statement tending to
expose the declarant to criminal liability and offered to exculpate the accused is not
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admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement.” Id.
In excluding the testimony of the various witnesses to the Burkhart
confessions, the trial court found that the requirements for Hawaii Rule of
Evidence 804(b)(3) were not met because the trustworthiness of the statements was
not clearly demonstrated. The trial court did not consider Chambers or whether the
exclusion of the testimony violated Petitioner’s constitutional rights. In affirming
the trial court’s exclusion of the evidence, however, the Hawaii Supreme Court
considered Chambers. See State v. Christian, 967 P.2d 239, 262 (Haw. 1998). The
Hawaii Supreme Court found Chambers was distinguishable from the instant case
because “corroborating circumstances of the type noted by the Chambers court
[we]re not present in the instant case[,]” and the corroboration presented by
Petitioner was “too weak clearly to indicate the trustworthiness of Burkhart’s
confessions to Auld and Mullins[.]” Id. at 262, 263. Specifically, the Hawaii
Supreme Court noted that
no eyewitness linked Burkhart to the stabbing of
Cabaccang. On the contrary, the two individuals who had
an opportunity to observe Cabaccang's assailant failed to
identify Burkhart in a photo lineup, and instead, both
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2 Since the Supreme Court’s ruling, and as part of the evidentiary hearing in
this case, one of these witnesses, Phillip Schmidt, has recanted his identification of
Petitioner and has identified Burkhart as the person he saw leaving the crime scene.
3 Although not admitted into evidence at the instant evidentiary hearing due
to timeliness concerns, Petitioner presented a declaration by one of these witnesses,
Helen Betbeatty-Auweloa, who recanted her previous statement regarding
Burkhart being present in her home near the time of the murder, and now states
that she cannot be certain that Burkhart was in her home because she was sleeping
and he could have left.
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identified Christian as the attacker.2 Moreover, the
prosecution offered two witnesses who placed Burkhart
at another location at the time of the stabbing. 3 Second,
neither of the two confessions allegedly made by
Burkhart were sworn, as was McDonald's confession to
Chambers's attorneys. Finally, while there is evidence
that Burkhart owned an unusual “butterfly” knife,
Christian himself conceded that the split blade knife
found at the crime scene was not a “butterfly” knife.
Id. at 262-63. Therefore, the Hawaii Supreme Court found that
[t]he only arguably corroborating evidence offered by
Christian did not link Burkhart to the crime, but rather, in
a rather tenuous manner, to the neighborhood in which
the crime took place, by indicating that Burkhart had
failed to appear at the nearby home of his friends, who
had been expecting his visit that evening.
Id. at 263.
The Magistrate Judge noted the Hawaii Supreme Court’s ruling, but
found that were significant similarities between the Chambers case and the instant
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4 One of these confessions was made to Patricia Mullins only two days after
the murder.
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case. Specifically, as in Chambers, Burkhart made spontaneous confessions to at
least three persons after the murder occurred, and urged one of them not to turn
him in.4 In addition, the Magistrate Judge cited to Chia v. Cambra, 360 F.3d 997,
1004-05 (9th Cir. 2004), which in turn cited to a Supreme Court case for the
proposition that “[s]elf-inculpatory statements have long been recognized as
bearing strong indicia of reliability.” (citing Williamson v. United States, 512 U.S.
594, 599 (1994)). Finally, the Magistrate Judge noted in a footnote that although
the Burkhart confessions did not have all of the corroborating evidence that the
McDonald confessions had, nothing in Chambers dictated that the same level of
corroborating evidence is required. (Doc. # 146 at 46 n.16.) The Magistrate Judge
found that “[t]he trial court appeared to weigh Petitioner's supporting evidence
against the prosecution’s evidence in determining whether there was corroboration
for the confessions. The trial court should have left that process for the jury and
should only have made a basic determination whether there was sufficient
corroboration to render the confessions admissible.” (Id. at 48-49.) The
Magistrate Judge therefore found that “the trial court's exclusion of the proposed
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testimony about the Burkhart confessions was contrary to clearly established
federal law, as set forth in Chambers.”
This Court agrees with the Magistrate Judge and after a de novo
review independently finds that with respect to the ruling by the Hawaii Supreme
Court, it was an unreasonable application of Chambers because it did not consider
the strong indicia of reliability of self-inculpatory statements, it did not consider
the fact that Burkhart had confessed to at least three persons, each of which
provides corroboration for the other, and it did not recognize that the Chambers
case does not require the same level of corroboration that was present in Chambers
for all cases. Moreover, some of the evidence cited by the Hawaii Supreme Court,
such as the failure of a connection between Burkhart and the crime scene, and the
identification of Petitioner at the crime scene, goes beyond whether the three
confessions have an indicia of reliability and crosses-over into the realm of the
weight of the evidence against Petitioner.
Accordingly, this Court finds that the exclusion of the Burkhart
confessions was contrary to clearly established federal law, as set forth in
Chambers.
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B. 	Injurious Effect and Evidence of Burkhart’s Whereabouts
Respondent argues that Petitioner has not shown that the exclusion the
Burkhart confessions had a substantial and injurious effect or influence in the
jury’s verdict. Respondent also avers that the Magistrate Judge erred by finding
that Petitioner was injured by the exclusion of the Burkhart confessions because he
was unable to rebut the evidence presented by the prosecution that Burkhart was
somewhere else at the time of the stabbing. Respondent states this was an error
because the prosecution never presented any evidence of Burkhart’s whereabouts
at the time of the murder. Respondent argues that the exclusion of the Burkhart
confessions did not have an injurious effect because they did not have an indicia of
reliability, Petitioner presented alternate defenses at closing, which diminished the
value of the confessions, and the other evidence overwhelmingly implicated
Petitioner.
Habeas petitioners are not entitled to relief based on trial error unless
the error “had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). This harmless
error standard applies to “non-constitutional error in cases on direct review and to
constitutional error in cases on collateral review.” Arnold v. Runnels, 421 F.3d
859, 867 (9th Cir. 2005). “[E]rror is harmless if [the court] can say with fair
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assurance that it did not have a substantial effect, injurious to the defendant, on the
jury's decision-making process.” Id.
Respondent argues that the only injury to Petitioner was an inability to
allegedly rebut the prosecution’s evidence of Burkhart’s whereabouts, however,
the prosecution never presented such evidence. This argument lacks merit. It is
irrelevant whether or not the prosecution presented evidence because Petitioner’s
due process rights were violated because he was unable to present a theory of
defense, not just because he could not rebut the prosecution’s evidence regarding
Burkhart.
Moreover, as set forth above, the Burkhart confessions had sufficient
indicia of trustworthiness because they were self-inculpatory statements made to
three separate people, all of which corroborate each other.
Respondent’s argument that the presentation at closing of a self-
defense theory and extreme emotional disturbance diminished the value of the
Burkhart confessions is also an irrelevant consideration because those alternative
defense theories likely would not have been presented had Petitioner been able to
introduce into evidence the Burkhart confessions.
Finally, the allegedly overwhelming evidence implicating Petitioner is
not relevant. As noted by the Ninth Circuit, the question “is not whether the
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evidence was sufficient or whether the jury would have decided the same way even
in the absence of the error. The question is whether the error influenced the jury.”
Id. at 869.
This Court cannot say with fair assurance that the exclusions of the
Burkhart confessions did not have a substantial effect on the jury’s guilty verdict.
For these reasons, this Court DENIES Respondent’s objections and
ADOPTS the Magistrate Judge’s F&R. This Court GRANTS the Petition on
Ground Two. The Court ORDERS Respondent to release Petitioner within seven
days after the judgment in the instant case is filed, subject to appropriate release
conditions, unless the State elects to retry Petitioner; and ORDERS Respondent to
report to this Court, within ten days after the judgment in the instant case is filed,
whether Petitioner was released or will be retried.
II. 	Petitioner’s Objections
A. 	Ground One, Denial of Right to Testify
After the presentation of evidence, but before closing arguments,
Petitioner informed the trial court that he wanted to testify. Petitioner had twice
previously been informed about his right to testify in his own defense and he
waived his right. In a conference in chambers after his last minute request to
testify, the trial judge asked Petitioner if there was anything he wanted to say and
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Petitioner responded that there was “a tape of a witness that was in the presence of
[Burkhart] and [Seidel] on more than one occasion and shows that [Seidel]
committed perjury” when she testified for the prosecution. The trial court asked
Petitioner if he had anything else to say and he said that he did not. A discussion
ensued about reopening the case and discovery about the tape. The trial court
refused to allow the defense to reopen its case to allow Petitioner to testify. In
addition, Petitioner’s counsel and the trial court cautioned Petitioner that “if he
makes any further outbursts in front of the jury – first, not only is his counsel
correct it only hurts his case. Secondly, if he continues that, the Court will have no
choice but to exclude him from the courtroom.”
Petitioner later filed a motion for a new trial, arguing that the trial
court should have allowed the defense to reopen its case to allow Petitioner to
testify. The trial court reaffirmed the denial of Petitioner's request to testify on the
ground that Petitioner had previously declined to testify after the trial court's
colloquy and Petitioner waited until just before closing arguments to try to change
his mind.
Upon reviewing the trial court’s decision, the Hawaii Supreme Court
found that Petitioner had made a knowing and voluntary waiver of his right to
testify, which was not being challenged. The Hawaii Supreme Court determined
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that “the trial court must pass on a defendant's attempted withdrawal of the prior
waiver of his or her right to testify, tendered before the commencement of closing
arguments, pursuant to the ‘liberal approach,’ whereas such an attempted
withdrawal tendered thereafter is subject to the ‘manifest injustice’ standard.”
Christian, 967 P.2d at 257. The stricter standard applies after the close of evidence
because the “post-evidentiary phase of the trial, i.e., the parties’ closing arguments
. . . is, after all, . . . [the] point in the proceedings that the defendant has taken the
‘decisive, irrevocable step’ of placing his or her fate regarding the charged offenses
in the jury's hands, based on the evidence presented.” Id.
Applying the liberal approach to Petitioner’s first request to withdraw
his waiver of his right to testify, the Hawaii Supreme Court found that the trial
court did not abuse its discretion in denying Petitioner’s request because, after
giving Petitioner a full opportunity to explain his reasons for withdrawing his
waiver, Petitioner’s “sole offer of proof in support and explanation of his newly
expressed desire to testify was that ‘there's a tape of a witness that was in the
presence of Hina [Burkhart] and Serena [Seidel] on more than one occasion [that]
shows that Serena's committed perjury in . . . court.” Id. at 426 (brackets and
ellipses in original).
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With respect to the motion for new trial, the Hawaii Supreme Court
found that it was the first time that the trial court was made aware that Petitioner
wanted to testify to his version of events. Id. Applying the manifest injustice
standard, the Hawaii Supreme Court found that the denial of the motion for a new
trial was not an abuse of discretion because Petitioner had made a knowing and
voluntary waiver of his right to testify, there was no substantive denial of due
process, and Petitioner was given an opportunity to be heard. Id. at 427.
In the F&R, the Magistrate Judge stated that
[i]f Petitioner, during the conference in chambers before
closing argument, expressed a desire to testify about his
version of events, this Court would likely find that any
inconvenience to the trial court or prejudice to the
prosecution from reopening the defense's case was
minimal in comparison to Petitioner's interest in
testifying. Petitioner, however, did not do so. During the
conference in chambers, when the trial court addressed
Petitioner about his request to testify, Petitioner
responded only that there was a tape of a witness who
could establish that Seidel perjured herself at trial. Trial
counsel addressed the issue of the tape and then the trial
court asked Petitioner if there was anything else.
Petitioner said that there was not. During the conference
in chambers, Petitioner never said that he wanted to
testify about his version of the events at issue. While this
may have been his subjective intent, the trial court did
not consider it because Petitioner did not express this
intent. Based on the record, this Court finds that
Petitioner's request to reopen his case to testify was based
upon his desire to offer the purported perjury tape.
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(F&R at 34-35.)
Petitioner objects to the Magistrate Judge’s finding that his request to
reopen his case to testify was based upon his desire to offer the purported perjury
tape. Petitioner claims that the finding contradicts trial counsel’s statement made
in connection with the motion for new trial. In addition, Petitioner claims that he
knew he would not have been allowed to testify about the tape recording and
therefore, his request could only have been a request to present his version of the
facts. Finally, Petitioner asserts that the Magistrate Jude gave undue weight to
what Petitioner did not say in the chamber’s conference. In sum, Petitioner argues
that he wanted to testify about his own version of events, that the trial judge should
have known that that was his desire, and therefore, the trial court’s decision to not
reopen the case was contrary to clearly established federal law.
Petitioner’s arguments fail. First, Petitioner fails to cite to anything in
the record to support his objections. Second, the Magistrate Judge’s finding with
respect to what Petitioner made known to the trial judge during the chambers’
conference was correct. Petitioner has pointed to no evidence establishing that he
informed the trial judge during that conference that he intended to testify to his
version of the events, or that he wanted to testify to anything other than the
existence of the tape recording. Indeed, Petitioner concedes that he did not
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explicitly state that he wanted to testify about his version of events. (Pet.’s obj. at
4.) Instead, it is clear that the trial judge gave Petitioner two opportunities to say
anything he wanted to say, and Petitioner only raised the issue of the tape
recording, which is also the finding made by the Hawaii Supreme Court. Third,
that Petitioner’s counsel made a new argument at the time of the motion for new
trial and stated that Petitioner wanted to testify to his version of events, does not
change the fact that such desire was not made known to the trial judge during the
chambers’ conference. Moreover, Petitioner does not challenge the standard of
manifest injustice, which is applied on the motion for new trial.
Accordingly, Petitioner’s objections to the F&R as to Ground One are
DENIED and this Court ADOPTS the F&R.
B. 	Ground Three, Ineffective Assistance of Counsel
1. 	Forensic Evidence
Petitioner argues that with respect to his trial counsel’s failure to
conduct forensic testing of the physical evidence, the Magistrate Judge should have
considered it as a failure to investigate, which does not deserve a presumption of
effectiveness, rather than applying the standard of presumption of sound trial
strategy.
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This argument fails because, as the Magistrate Judge found, “even
assuming, arguendo, that trial counsel's failure to conduct forensic testing fell
below the objective standard of reasonableness, Petitioner's ineffective assistance
of counsel claim would still fail because he cannot establish prejudice.” (F&R at
58); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish a
claim of ineffective assistance of counsel, a defendant must demonstrate that his
defense was so prejudiced by his counsel’s errors that there is a reasonable
probability that, but for his counsel’s deficient representation, the result of the
proceedings would have been different); see also Hensley v. Christ, 67 F.3d 181,
184-85 (9th Cir. 1995) (a petitioner must show that “the deficient performance
prejudiced the defense and made the trial results unreliable”).
Petitioner does not contest this finding that he cannot establish
prejudice because none of the physical evidence tested contained DNA from
Burkhart. Accordingly, this Court DENIES this objection to the F&R.
2. 	Christian-Kimmey Tape
At trial, the prosecution characterized the tape recording of a
conversation between Petitioner and Lisa Kimmey (the “Christian-Kimmey tape”)
as representing a confession by Petitioner because on the tape Lisa says, “Taryn,
I’m not going to tell them you killed that guy. Okay. Okay.” Lisa says, “Every
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time I see a car that says ‘In loving memory of Vilmar,’ I want to puke. Petitioner
says, “Do you think I feel good? How do you think I feel? You’re not the one
who did it.”
Petitioner, however, presented evidence at the instant evidentiary
hearing that if the volume of the recording is increased at two points in the
recording, the jury could have heard Petitioner say “I'm not the one who did it” and
that he also said “I wasn't the one who stabbed him.” Petitioner next argues that
the Magistrate Judge’s finding that that his trial counsel acted reasonably with
respect to the investigation into the Christian-Kimmey Tape and provided
competent assistance is faulty because the jury was not made aware that they
needed to adjust the volume of the recording up and down to hear Petitioner’s
denials of killing Cabaccang. Therefore, Petitioner asserts, that merely being
informed to listen carefully was insufficient because there is no way of knowing
that the jury made the correct volume adjustments when listening to the tape.
Petitioner’s arguments are meritless. As noted by the Magistrate
Judge, and uncontested by Petitioner,
[t]rial counsel was aware of Petitioner's statement "I
wasn't the one who stabbed him, and I know that for a
fact." Counsel read the statement to the jury from the
transcript of the recording during closing argument and
played that portion of the tape for them. [Answer, Exh. T
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(Trans. 3/10/97) at 54-55.] Counsel even warned them
that the statement was "a little hard to pick up." [Id. at
54.] He also told the jurors that there would be
headphones in the jury room that they could "try to hear
better." [Id. at 55.] Thus, trial counsel knew about one
of the denials on the tape and knew that it was difficult to
hear the statement. Counsel pointed these facts out to the
jury in closing argument.
(F &R at 54.)
Accordingly, trial counsel certainly conducted a reasonable
investigation into the contents of the tape recording, because he realized that at
least one denial was on the tape. Further, counsel acted competently because he
informed the jury of the denial, and warned them that it was difficult to hear.
Finally, because the jury was made aware of the denial and informed that it was
difficult to hear, Petitioner cannot show that he was prejudiced by a failure to
explicitly tell the jury to turn the volume up a two specific points in the recording.
Accordingly, this Court DENIES this objection to the F&R.
3. 	911 Tape
Petitioner contends that his trial counsel was ineffective for failing to
obtain and present an enhanced copy of the 911 tape of the call made by Robert
Perry, Jr. from the crime scene. At the instant evidentiary hearing, Petitioner
presented an audio engineer, John Mitchell, who testified that an unidentified male
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said “James Burkhardt [sic] just walked off” on the 911 recording. Mitchell
testified that “James Burkhart” can be heard without enhancing the tape, although
the statement is at a very low level, and a person may need to listen to that portion
a number of times in order to hear it.
Respondent also presented an audio engineer, David Smith, who
stated that he could not verify Mitchell’s opinion that an unidentified male said
“James Burkhardt just walked off”. In Smith's opinion, the statement is
unintelligible. Further, the first word could not be the name ‘James,’ because it
consists of two syllables.
The Magistrate Judge found that because reasonable audio experts
could differ about whether the name ‘James Burkhart’ can be heard on the Perry
911 tape and because Mitchell testified that the name can be heard without
enhancing the tape, trial counsel’s decision not to retain an audio expert to enhance
the Perry 911 tape was within “the wide range of professionally competent
assistance.” See Strickland, 466 U.S. at 690.
Petitioner contends that this finding was in error because the jury
should have been made aware of the audio engineers’ opinions and made their own
determination as to which opinion was more compelling. This argument misses the
point because the first analysis under an ineffective assistance of counsel claim is
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whether it was with the range of competent assistance not to order an enhanced
version of the tape. This Court agrees with the Magistrate Judge and
independently finds that it was not below an objective standard of reasonableness
not to do so because Mitchell testified that enhancement was unnecessary, and
Smith testified that the statement was unintelligible.
Accordingly, this Court DENIES this objection to the F&R.
4. 	Change in Defense Theory
Petitioner asserts that presenting alternate theories of defense at
closing that Petitioner did not commit the crime, but that if he did, it was in self-
defense, had no chance of convincing a jury to find in Petitioner’s favor, and thus
fell below the Strickland standard.
The Magistrate Judge found the decision was within “the wide range
of professionally competent assistance” because the trial court excluded the
witnesses who would have testified that Burkhart confessed to killing Cabaccang,
and therefore, the main theory of defense was not very strong.
This Court also finds on a de novo review that a change of the theory
of defense did not fall below an objective standard of reasonableness. As the main
theory of defense that Burkhart committed the killing was not supported by strong
evidence, it was within the wide range of competence and trial strategy to argue
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that in the event the jury believed the prosecution, it should consider that the
stabbing was in self-defense. Accordingly, this Court DENIES this objection to
the F&R.
5. 	Handwriting Identification and Stereo Equipment
Petitioner alleges that his trial counsel was ineffective for failing to
discredit a lay witness’s identification of his handwriting by showing that a
handwriting expert hired by the prosecution had been unable to identify the writing
in question as Petitioner’s handwriting. Petitioner also asserts that his counsel was
ineffective for failing to introduce available evidence that Petitioner had purchased
the stereo equipment in his possession, and it was not stolen.
The Magistrate Judge noted that Petitioner did not elaborate on these
arguments in any of the briefing on the instant motion. The Magistrate Judge
found that these two claims pertained to Petitioner's conviction of attempted theft
in the third degree. The Magistrate Judge therefore, found that this Court did not
have habeas jurisdiction over such claims because Plaintiff has served his sentence
for the theft by the time he filed the Petition.
Petitioner objects to this finding and asserts that these issues relate to
the alleged motive for the homicide because the prosecution had claimed that
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Petitioner was attempting to steal stereo equipment from the victim’s car and killed
the victim to avoid being identified as the thief.
Although it is true that this evidence relates in part to the murder
conviction, Petitioner’s arguments fail because Petitioner has failed to point this
Court to any evidence in the record to establish that Respondent had a handwriting
expert or that Petitioner had receipts for his stereo equipment. Accordingly, there
is nothing upon which this Court could base a finding that counsel’s assistance fell
below the objective standard of reasonableness. Moreover, Petitioner has made
nothing more than a conclusory statement that such failure prejudiced his defense.
Therefore, this objection to the F&R is DENIED.
6. 	Evidence of Seidel-Burkhart Relationship
Petitioner contends that his trial counsel was ineffective because he
failed to present evidence that Seidel and Burkhart knew each other, which could
have discredited Seidel’s assertion that Petitioner was the perpetrator.
The Magistrate Judge found that Petitioner presented only
unsubstantiated argument and did not identify the witness who could testify to the
Seidel-Burkhart relationship.
In his objections, Petitioner asserts that he identified James Shin in his
Rule 40 Petition in State court as the witness who could testify about the
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relationship. However, merely identifying this witness to this Court does not
provide this Court with evidence that Petitioner’s trial counsel was made aware of
this witness and the relationship, and yet failed to investigate further. Therefore,
this Court cannot evaluate whether trial counsel's failure to investigate this witness
was constitutionally deficient.
For these reasons, Petitioner’s objections to the recommendation that
Ground Three be denied are DENIED. This Court, therefore, ADOPTS the F&R
with respect to Ground Three and MODIFIES it in PART only to the extent that
the handwriting and stereo equipment claims were based upon both the theft
conviction and the murder conviction. As such, this Court has habeas jurisdiction
to consider such claims. Nevertheless, these claims fail because Petitioner has not
met his burden of providing evidence that his counsel’s assistance fell below the
objective standard of reasonableness or that he suffered prejudice.
C. 	Ground Four, Actual Innocence
Petitioner asserts that he sustained his burden under an actual
innocence claim because Schmidt has now changed his testimony to state that he
believes Burkhart, rather than Petitioner, was the man that he saw leave the crime
scene.
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A habeas petitioner can establish an actual innocence argument if
“new facts raised sufficient doubt about his guilt to justify the conclusion that his
[sentence] would be a miscarriage of justice unless his conviction was the product
of a fair trial.” Schlup v. Delo, 513 U.S. 298, 316 (1995). The court must
conclude that in light of the new evidence, no reasonable juror would have
convicted Petitioner. Id. Where the court conducts an evidentiary hearing on the
new evidence the court should consider “how the timing of the submission and the
likely credibility of the affiants bear on the probable reliability of that evidence.”
Id. at 332.
The Magistrate Judge found that
Schmidt admits that his recollection of the events was
clearer at the time of the incident and at the time of
Petitioner's 1997 trial than it is today. Further, Schmidt
testified at the evidentiary hearing that, when he saw
Petitioner's picture in the photographic line-up during the
police investigation, he experienced a frightened feeling.
See also Answer, Exh. L (Trans. 3/3/97 AM) at 42-43
("The third one I came across, it frightened me. The hair
on the back of my neck stood up . . . ."). It seems
unlikely to the Court that Petitioner's picture would have
caused such a feeling if Schmidt only saw him in passing
at a restaurant. [Id. at 44 (Schmidt testified at trial "I
don't have any idea why I would have reacted that way to
someone just because I'd seen them at work.").] Schmidt
also testified that at least six months had passed between
the last time he saw Petitioner at the restaurant and the
police photographic line-up. [Id. at 44-45.] In addition,
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although Schmidt explains the reason for his allegedly
erroneous identification of Petitioner, Schmidt offers no
explanation why he was unable to identify Burkhart at
the time of the incident and trial. Thus, this Court finds
Schmidt's trial testimony to be more reliable than his
testimony in connection with the evidentiary hearing.
(F&R at 78.) Petitioner does not explain why this finding is inaccurate. This
Court agrees with the Magistrate Judge that Schmidt’s trial testimony is more
reliable than his new testimony for the reasons set forth above. With that in mind,
Petitioner has not raised sufficient doubt about his guilt based upon Schmidt’s
change in testimony.
Therefore, this objection is DENIED and this Court ADOPTS the
F&R.
CONCLUSION
The Court DENIES Respondent’s Objections (Doc. # 148) to the
Magistrate Judge’s Findings and Recommendation to Grant in Part and Deny in
Part Petition for Writ of Habeas Corpus, filed on August 29, 2008 (“F&R”, Doc. #
146) and DENIES Petitioner’s Objection to Portions of Magistrate Judge’s F&R.
(Doc. # 149).
This Court previously ADOPTED the F&R with respect to allowing
Petitioner to choose between dismissal of the entire petition or amending the
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petition to delete two unexhausted claims. (Doc. # 151.) Petitioner amended the
petition. This Court now ADOPTS in PART the remainder of the F&R and
MODIFIES it in PART. The F&R is modified only with respect to the basis for
denying the portion of Ground Three that was based on handwriting and stereo
equipment claims. This Court MODIFIES that portion to hold that the handwriting
and stereo equipment claims were based upon both the theft conviction and the
murder conviction. As such, this Court has habeas jurisdiction to consider such
claims. Nevertheless, these claims fail because Petitioner has not met his burden of
providing evidence that his counsel’s assistance fell below the objective standard
of reasonableness or that he suffered prejudice.
This Court therefore, DENIES the Petition with respect to Grounds
One, Three, Four, Five, Six, Seven, and Nine. This Court GRANTS the Petition
on Ground Two. This Court ORDERS Respondent to release Petitioner within
seven days after the judgment in the instant case is filed, subject to appropriate
release conditions, unless the State elects to retry Petitioner; and ORDERS
Respondent to report to this Court, within ten days after the judgment in the instant
case is filed, whether Petitioner was released or will be retried. Clerk to enter
judgment.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 30, 2008.
_____________________________
David Alan Ezra
United States District Judge
Taryn Christian vs. Clayton Frank, et al., Civil No. 04-00743 DAE-LEK;
ORDER ADOPTING IN PART AND MODIFYING IN PART THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT
IN PART AND DENY IN PART THE PETITION FOR WRIT OF HABEAS
CORPUS; AND ORDER DENYING RESPONDENT’S AND PETITIONER’S
OBJECTIONS TO PORTIONS OF MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
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