Lead Opinion
Opinion by
Dissent by Judge FERNANDEZ.
OPINION
BERZON, Circuit Judge:
Petitioner Adilao Juan Ortiz (“Ortiz”) was convicted by a jury of willful infliction of corporal injury to his spouse in violation of California Penal Code § 273.5. At trial, Ortiz’s wife, Miriam Ortiz (“Miriam”) testified on behalf of the prosecution. Ortiz maintains that he was denied his Sixth Amendment right to confront adverse witnesses when the trial judge precluded his trial counsel from asking Miriam whether she was afraid to deviate from her initial incriminating statement to the police because of threats allegedly made against her by the prosecutor. The District Court denied Mr. Ortiz’s petition for habeas corpus. We reverse.
I. Factual and Procedural Background
A. Pre-Trial Proceedings
On February 10, 2001, Miriam, accompanied by her mother, father, and sister, went to the Santa Barbara Police Department to report an alleged assault by her husband the previous evening. There she was interviewed by Officer James Fuller. Miriam, who was four months pregnant at the time, had severe bruising to her mouth and left eye, and a swollen knee. She represented to Officer Fuller that she received these injuries when her husband punched her in the face and kicked her following an argument about money. Ortiz was subsequently charged with corporal injury to his spouse in violation of California Penal Code § 273.5.
In the months leading up to her husband’s trial, however, Miriam would not assist the prosecuting authorities. She declined to speak with District Attorney (“D.A.”) investigators, telling them she
Miriam also assisted her husband’s efforts to disqualify the Santa Barbara County D.A.’s Office from prosecuting his case. Prior to trial, Ortiz moved to disqualify the D.A.’s office, arguing that a conflict-of-interest existed because Miriam’s aunt, Sonia Huerta (“Sonia”), worked in that office. To support his motion, Ortiz submitted declarations from Miriam and her father, Martin Huerta (“Martin”). Martin stated that he received a phone call from Sonia, his sister-in-law, nearly two weeks before Ortiz’s preliminary hearing. According to Martin, Sonia
told me that [Deputy D.A. Lynn] asked her to give a message to me and my daughter. Sonia told me that Mr. Lynn said that if Miriam did not tell the truth at the preliminary hearing she could be sent to jail. He said Miriam needed to think about that because she had a baby and the baby was going to grоw up without both parents.
Martin added that “[t]his sounded like a threat by Mr. Lynn that Miriam would be punished if she testified at the preliminary hearing any different from her original statement.” Miriam’s sworn declaration stated: “my father ... told me that Sonia Huerta had called with a message for me.... The message was that if I didn’t testify the same as my original statement I could go to jail and lose my baby.”
Deputy D.A. Lynn submitted a declaration in opposition to Ortiz’s disqualification motion. Lynn admitted that he spoke with Sonia about Ortiz’s case, but maintained that he told her only that Miriam “was under subpoena for the preliminary hearing and she needed to appear and testify truthfully if called.”
The trial cоurt denied Ortiz’s motion to disqualify the D.A.’s office. In doing so, the court assumed the truth of Martin’s and Miriam’s declarations but declined to hold an evidentiary hearing. Issues regarding the alleged threat would later resurface at trial.
B. The Trial Evidence
Ortiz’s trial proceedings commenced on October 30, 2002. Following opening statements, Deputy D.A. Lynn called three witnesses: (1) Gerardo Gonzalez, (2) Miriam Ortiz, and (3) Officer James Fuller.
1. Testimony of Gerardo Gonzalez
Gonzalez testified that in early February 2001, his coworker, Miriam, asked him to cash a $700 check for her because she did not have time to go to the bank. Gonzalez deposited the check into his account and gave Miriam $700 in cash. A week later, Gonzalez’s bank informed him that the check from Miriam had bounced. When Gonzalez told Miriam about the problem, she wrote him a second check, which also bounced.
At that point, Gonzalez called Miriam to discuss her $700 debt. He spoke to Miriam briefly, but at some point during the conversation, a male voice came on the phone and asked Gonzalez who he was. Gonzalez tried to explain the situation, but the man on the phone accused Gonzalez of having an affair with Miriam, and told him
2. Testimony of Miriam Ortiz and Restriction of her Cross-Examination
i. Direct Examination
The morning before Ortiz’s trial started, prosecutors agreed to give Miriam use immunity (excluding perjury) to induce her to testify. Though reluctant, Miriam largely corroborated Gonzalez’s testimony with respect to the $700 debt and the subsequent phone conversation. She denied, however, that Ortiz hаd threatened to beat up Gonzalez.
According to Miriam, after the phone call, Ortiz was upset with her for borrowing money from Gonzalez. Though she tried to explain to Ortiz that she had borrowed the money to pay off their recent wedding expenses, he called her a “whore” and accused her of having a sexual relationship with Gonzalez. At some point during the argument, Ortiz punched Miriam in the face. Miriam then went into the bedroom to lay down; Ortiz followed and kicked her in the knee.
The following day, Miriam went with her parents and sister to the police station to report the incident. At trial, Miriam testified that she remembered making the report and speaking with Officer Fuller, but that she could not remember certain details about the interview. Miriam explained that she “wasn’t feeling [her]self” that day at the police station, “because [her] grandfather had passed away” earlier that morning. She recalled telling Officer Fuller that Ortiz had punched and kicked her. And, although she admitted agreeing to a restraining order against Ortiz, she testified that she “didn’t really want to agree to it because [she] didn’t feel like [she] needed one.”
The prosecutor then admitted into evidence photos of Miriam’s injuries that were taken the day she filed the police report. The pictures showed bruising on Miriam’s chin, lacerations to her lips, darkness around her eyes, and bruising on her right knee. Although Miriam recalled having the pictures taken, she equivocated when asked whether the injuries were caused by Ortiz.
Finally, the prosecutor asked Miriam if she had spoken with D.A. investigator Jim Nalls about the incident. Miriam stated that Nalls had attempted to speak with her a few weeks before the trial but she had refused to talk to him about the case. When asked whether she had told Nalls that she received her injuries when she “hit a rocking chair or something along those lines,” Miriam said that she could not recall.
ii. Cross-Examination
Because the principal issue in this appeal concerns the trial court’s restriction on Ortiz’s ability to cross-examine Miriam, we describe the proceedings in some detail. During cross-examination, the following exchange between Miriam and Thomas Stanley, Ortiz’s trial counsel, took place:
Mr. Stanley: You were asked right at the end of your testimony previously about talking to Investigator Nalls I think three weeks ago, correct?
Mrs. Ortiz: Yes, that is correct.
Mr. Stanley: And he interviewed—he wanted to speak to you about what happened, correct?
Mrs. Ortiz: Yes, that is correct.
Mr. Stanley: And even though you didn’t really want to speak with him, you did speak with him for awhile?
Mrs. Ortiz: Yes, I did mention to him we were going to go out ... to dinner with my sister-in-law and her family and he continued to question me, and I men*1032 tion [sic] to him that I didn’t want to talk about it.
Mr. Stanley: Did you have some concerns in talking about it? Had you perceived any sort of danger to your situation?
Mrs. Ortiz: Yes. They’ve actually— they’ve threatened me that if I didn’t testify—
Deputy District Attorney Lynn: Objection. Move to strike. Counsel—
Mr. Stanley: Goes to her state of mind, your Honor. I think it’s entitled to be presented.
The Court: Sustained.
Mr. Stanley: What did you tell Mr. Nalls about why you weren’t speaking to him.
Mr. Lynn: Same objection, your Honor. Unless it calls for a separate аnswer.
Mr. Stanley: Your Honor, I would like to go sidebar. I do want to make this comment.
The Court: The question is what did she say to Mr. Nalls. I’ll permit it. What did you say to him?
Mrs. Ortiz: What did I say to him the day that he went to the house?
Mr. Stanley: About why you didn’t want to talk to him.
Mrs. Ortiz: Because they had threatened me that if I didn’t—
Mr. Lynn: Same objection.
The Court: I’m going to sustain the objection if that’s the issue.
Mr. Stanley: I would like to make my point at sidebar with the reporter.
At sidebar, Stanley proffered that Miriam would testify that she refused to speak with Nalls because she perceived a threat from the prosecutor’s office that if she deviated from her original statement to Officer Fuller, she would be prosecuted for perjury and lose custody of her child. Stanley argued to the trial court that its refusal to allow cross-examination on this subject violated Ortiz’s right to confront аdverse witnesses.
Stanley also reported during the sidebar conference that Miriam had privately recanted her initial story that Ortiz assaulted her: at around 1:30 p.m. on October 30— the day Ortiz’s trial commenced—Miriam met privately with her attorney, Dan Murphy (“Murphy”), whom she had retained the previous evening. Stanley joined Miriam and Murphy to help bring Murphy up to speed. According to Stanley, Miriam represented during that meeting that Ortiz did not strike her, and that she was afraid she would be prosecuted for perjury if she testified to that effect.
The trial judge moved the sidebar conversation into chambers, where Murphy presented a different account of that earlier three-way meeting. According to Murphy, at around 11:30 on the morning of October 30, Miriam made it “very clеar” to him that her testimony later that afternoon would conform to her initial statement to Officer Fuller. Murphy believed, however, that Miriam was “worked over the noon hour” when she went to lunch with Ortiz. At around 1:30 p.m., during the three-way meeting between Miriam, Murphy, and Stanley, Miriam asked Murphy “[h]ow is anyone going to know what really happened, what’s really the truth, when no one was there? It was just me and him.” But, Murphy maintained, Miriam never said “[h]e didn’t hit me,” nor did she otherwise recant the version of events she gave to Officer Fuller.
Still in chambers, Deputy D.A. Lynn reiterated his objection to the proposed line of questioning. He noted that the issue regarding the alleged threat came up months earlier in connection with Ortiz’s motion to disqualify, and that there had been no “proof’ that Miriam was, in fact, threatened. The trial court sustained Lynn’s objection, and suggested that if it allowed Stanley to ask about the perceived
3. Testimony of Officer James Fuller
Officer Fuller testified that on February 10, 2001 he interviewed Miriam regarding the incident that took place the previous evening. He described Miriam’s injuries as they appeared that day, and confirmed that she had told him that she received her injuries when Ortiz punched her. Fuller also provided testimony regarding Miriam’s prior statements to him that were inconsistent with her trial testimony. Most notably, Fuller testified that Miriam “insisted” on an emergency protective order against Ortiz that would cover her father, her mother, and her sister, because Ortiz “threatened if she ever left him, that he would hurt her family.”
C. The Trial Court’s Decision & Post-Trial Rulings
Following the presentation of evidence, the parties stipulated that “[w]ithin four to ten years immediately prior to the crime alleged in this case [Ortiz] was convicted of felony spousal abuse.”
Following his conviction, Ortiz filed a motion for a new trial based on the trial court’s restriction of his cross-examination of Miriam. The trial court denied the motion.
D. Direct Appeal
Ortiz appealed his conviction to the California Court of Appeal where he contended, inter alia, that the trial court “violated his due process and Sixth Amendment rights by restricting his counsel’s cross-examination of the victim.” The Court of Appeal agreed that “the trial court erred by refusing to allow defense counsel to cross-examine Miriam as to whether her testimony was influenced by any threat or implied threats of prosecution.” In doing so, the court cited California Evidence Code § 780,
The District Court denied the petition. In the District Court’s view, by citing the California Evidence Code and applying the harmless error standard for violations of state law, rather than the one required for constitutional violations, the California Court of Appeal implicitly held that the trial court committed no constitutional error when it prohibited Ortiz from cross-examining Miriam as to the alleged threat. That implicit holding, the District Court concluded, was not unreasonable, and therefore Ortiz was not entitled to habeas relief. We disagree with the District Court’s latter conclusion, and, for the reasоns set forth below, grant Ortiz’s petition.
II. Analysis
Ortiz’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. Although the California Court of Appeal did not explicitly address the trial court’s curtailment of cross-examination in constitutional terms, we agree with the District Court that the Court of Appeal implicitly decided the merits of Ortiz’s Confrontation Clause claim. The Court of Appeal acknowledged that Ortiz raised this claim in his direct appeal by asserting that the trial court “violated his due process and Sixth Amendment rights by restricting his counsel’s cross-examination of the victim,” but, by citing Cudjo, indicated that in its view the trial court’s error did not reach constitutional magnitude. AEDPA therefore properly applies. Early v. Packer,
Under AEDPA, a federal habeas court may grant a habeas petition if the state court’s adjudication of the merits of the petitioner’s claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In making this determination, we look through state-court summary denials to the last reasoned state-court opinion on the claim at issue—here, the California Court of Appeal’s decision affirming Ortiz’s conviction. Ylst v. Nunnemaker,
A. The Sixth Amendment Violation
In the District Court’s view, it was not objectively unreasonable for the California Court of Appeal to conclude that the trial court committed no constitutional error when it precluded Ortiz from cross-examining Miriam as to the perceived threat. We disаgree.
The Supreme Court has made clear that “ ‘the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ ” Delaware v. Van Arsdall,
a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts*1035 from which jurors ... could appropriately draw inferences relating to the reliability of the witness.”
Id. at 680,
To be sure, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679,
We have on several occasions applied Lucas to hold that an arbitrary or disproportionate restriction on a defendant’s ability to cross-examine adverse witnesses as to their biases or motives for testifying violates the Sixth Amendment. See Jackson v. Nevada,
As those cases instruct, determining “whether the trial court’s preclusion of the cross-examination was an objectively unreasonable application of [Lucas],” involves a two-part inquiry. Fowler,
As in Fowler, the Court of Appeal in Ortiz’s case did not rely on, or even cite, Lucas in reaching its conclusion. See id. However, “a state court need not cite or even be aware of [the Supreme Court’s] cases under § 2254(d).” Harrington v. Richter, — U.S. -,
Accordingly, to determine whether § 2254(d)(1) is satisfied, we must decide (1) whether Ortiz’s proffered cross-examination sufficiently bore upon Miriam’s credibility such that no fairminded jurist could disagree that the cross-examination could have influenced the jury’s assessment of her; and (2) whether any countervailing interests could reasonably have justified the trial court’s curtailment of cross-examination.
As to the first inquiry, we previously explained that “cross-examination may implicate the Sixth Amendment even if it is not certain to affect the jury’s assessment of the witness’s reliability or credibility----[I]t is sufficient that a jury ‘might reasonably’ have questioned the witness’s reliability or credibility in light of the cross-examination.” Fowler,
As the victim and sole eyewitness to the incident, Miriam was a “central, indeed crucial” witness for the prosecution. Olden v. Kentucky,
Moreover, without any testimony regarding the perceived threat, jurors had no reason to question Miriam’s reasons for testifying against her husband. They therefore lacked “sufficient information to appraise [Miriam’s] biases and motivations.” Hayes v. Ayers,
That conclusion brings us to the second inquiry: whether the trial court’s eviden-tiary restriction “was disproportionate to the interests served in light of the facts of the defendant’s ease.” Jackson,
The District Court, in denying Ortiz’s habeas petition, indicated that “[t]he trial court concluded thаt admitting evidence of the alleged threats would be both highly prejudicial and an undue waste of time.” Not so.
The trial court said nothing about prejudice when it precluded Ortiz from cross-examining Miriam as to the perceived threat. Nor did the Court of Appeal cite prejudice as a reason for concluding that the trial court committed no constitutional error.
In any event, it is difficult to see how the proffered cross-examination could have been impermissibly prejudicial to the State. Had the trial court permitted Ortiz’s counsel to question Miriam about the perceived threat, prosecutors would have been free to rebut any statements Miriam might have made-—for example, by offering evidence that no such threat was made in the first place. And, of course, prejudice in the sense of making the jury less likely to convict because it does not believe the witness’ account is not, standing alone, pertinent to the question whether cross-examination should have been allowed. The whole point of the effective, permissible cross-examination protected by the Confrontation Clause is to diminish the witness’ credibility with the jury and thereby render a conviction less likely.
Any concerns about delay likewise could not have justified the trial court’s decision to preclude Ortiz from eliciting any testimony whatsoever from Miriam regarding the perceived threat. According to the trial court, permitting cross-examination of Miriam as to the threat might have required further testimony from several of the lawyers involved in Ortiz’s case. To be sure, whether the presentation of evidence would be unduly time consuming is a legitimate concern trial courts may consider in determining whether preclusion of cross-examination is warranted. See, e.g., Fenenbock v. Dir. of Corr. for Cal.,
Moreover, the potential for delay was actually quite limited. Our Confrontation Clause analysis is limited to the proffered threat testimony, and does not encompass Miriam’s purported recantation.
In any event, even if the trial would have been slightly longer with Lynn’s testimony, that is the price of assuring accurate decisionmaking. Put another way, where, as here, cross-examination is potentially crucial, the possibility оf a somewhat longer trial is simply the price of the protection accorded by the Confrontation Clause.
We cannot discern—and the State does not suggest—any other countervailing interest that would justify the trial court’s decision to preclude the proffered cross-examination. Put simply, the trial court’s curtailment was disproportionate to any conceivable valid purpose. Without Miriam’s testimony about the perceived threat, the jury had no reason to question why Miriam testified as she did during her direct examination. This error violated Ortiz’s constitutional right of confrontation; the Court of Appeal’s ruling to the contrary was objectively unreasonable.
B. Harmless Error
“Even where constitutional error is found, ‘in § 2254 proceedings a court must [also] аssess the prejudicial impact of constitutional error’ under the Brecht standard.”
It is difficult to overstate the importance of Miriam’s testimony for the prosecution. As the victim and sole eyewitness to the assault, Miriam provided the only direct evidence linking Ortiz to her injuries. As discussed above, “the jury might have received a ‘significantly different impression’ of [Miriam’s] credibility” hаd Ortiz been permitted to elicit testimony about the perceived threat. Holley,
That Ortiz was permitted to cross-examine Miriam on other matters does not alter our conclusion. Ortiz’s ability to cross-examine Miriam regarding a prior miscarriage, Ortiz’s relationships with her relatives, and Miriam’s emotional state on the day she filed the police report, could not have substituted for the precluded cross-examination regarding the threat. What is more, while Ortiz was free to ask Miriam on cross-examination whether she had received hеr injuries some other way—by falling over a chair, for example
Similarly, the trial court’s constitutional error is not rendered harmless simply because Miriam may have lacked credibility as a witness in other respects. The State points out that Miriam’s reluctance to testify on behalf of the prosecution was obvious: she had difficulty remembering the details of what had happened, could not recall her own prior statements, and gave implausible explanations for her injuries. But Miriam’s occasionally hesitant responses to questions do not support a finding of harmlessness. Quite the opposite: because the jury never heard about the perceived threat, it lacked any explanation for Miriam’s reluctance other than the one supplied by the prosecutors—that Miriam wanted to “save” Ortiz from conviction even though he had attacked her as she described. Had Ortiz been permitted to ask Miriam about the threat, the jury would have had an alternative explanation for her hesitant demeanor.
Our balancing of the Van Arsdall factоrs might suggest a different result had the prosecution supplied further evidence of Ortiz’s guilt beyond the three witnesses’ testimony and the police station photos. But it did not do so. The preclusion of Ortiz’s proffered cross-examination of the State’s key witness was therefore not harmless, and Ortiz is entitled to habeas relief.
III. Conclusion
“Clearly established federal law, as set forth by the Supreme Court in Davis, Van Arsdall, and Lucas, indicates that the trial court committed constitutional error by denying [Ortiz] the right to meaningful cross-examination of the prosecution’s leading witness.” Holley,
REVERSED and REMANDED.
Notes
. Though Miriam was subpoenaed to testify at Ortiz's preliminary hearing, Lynn did not call her as a witness.
. That conviction, as well as Ortiz’s other prior convictions, arose out of an incident in 1991 in which he assaulted a former girlfriend and her roommate.
. As summarized by the California Court of Appeal, section 780 provides that "in determining the credibility of a witness, the court or jury may consider any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony.”
. Specifically, in reaching its harmless error conclusion, the California Court of Appeal relied on People v. Cudjo,
. Whether the District Attorney's office did, in fact, threaten to prosecute Miriam for perjury, or to take away her child, if she testified differently from her initial statement is largely beside the point. It was Miriam’s understanding that she was threatened that was relevant to her motivation for testifying against Ortiz.
. As discussed below, Ortiz was free to ask Miriam on cross-examination whether she received her injuries some other way.
. See supra note 5.
. See supra pp. 1029-30.
. It is immaterial that the California Court of Appeal applied the nonconstitutional, more-likely-than-not harmless error standard in Ortiz's direct appeal. When a state appellate court chooses between harmless error standards to assess the prejudicial impact of a nonstructural constitutional error, " 'we need not conduct an analysis under AEDPÁ of whether the state court's harmlessness determination on direct review ... was contrary to or an unreasonable application of clearly established federal law.’ ” Merolillo,
. See supra p. 1031.
Dissenting Opinion
dissenting:
I respectfully dissent beсause even if there was a violation of the confrontation clause, a question on which I do not opine, habeas corpus relief cannot issue unless that constitutional violation had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson,
*1041 These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Id. In this case, I am satisfied that the error was harmless.
Ortiz’s wife, Miriam, was the witness. She presented herself in apparently battered condition at a police station the day after Ortiz allegedly assaulted her, and sought an order protecting herself and her family from Ortiz and his threats. Thereafter, however, she indicated that she just wanted to lead a normаl life with her husband and child. At trial, Miriam testified that Ortiz had hit her and lacked her, but she had many claimed memory failures about the incident and made various statements in which she attempted to soften the effect of that testimony. She even seemed to take some of the blame upon herself. Moreover, she suggested that other witnesses were incorrect, or that she could not recall what she told them. All in all, it was clear that she was a reluctant witness, who wanted to protect Ortiz despite his behavior. The jurors could readily perceive that.
The jury also heard from Gerardo Gonzalez, the man whose phone call apparently put Ortiz into a rage. When Gonzalez called, Miriam began crying and Ortiz came on the line, accused Gonzаlez of having an affair with Miriam, and threatened to assault him. After that call, he hurled similar accusations at her. The assaults upon Miriam took place right after that. Officer Fuller testified to what Miriam had told him, and to what he saw and photographed (the photographs were shown to the jury). In addition, the jury was informed that Ortiz had a prior conviction for spousal abuse. Ortiz, himself, did not testify.
Ortiz was not precluded from cross-examining Miriam about her changing stories or on any other point other than her claim that she felt threatened with a perjury prosecution if she testified that she had not really been assaulted by Ortiz. (Whether she was actually threatened and whether she would have recanted is not directly before us.)
In light of what the jury did hear, that is, the evidencе given by the independent witness regarding the anger of and threats by Ortiz, a prior batterer, and the condition and statements of Miriam when she appeared at the police station with her family, including her desire for a restraining order, it is highly unlikely that the jury would have been much moved if she had been subjected to the further cross-examination propounded by Ortiz.
Thus, I respectfully dissent.
. See Miguel,
. See United States v. Schoneberg,
.While Miriam’s testimony had importance, it was well corroborated on material points and cross-examination was not otherwise restricted.
. United States v. Larson,
. Slovik v. Yates,