John Gary ARREDONDO, Petitioner-Appellant, v. George ORTIZ, Respondent-Appellee.
No. 01-57166.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 7, 2003. Filed April 20, 2004.
365 F.3d 778
The practical significance of Andrade is not a precise formulation of what the test is for a sentence so disproportionate as to violate the
Jason C. Tran, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.
Before KOZINSKI, FERNANDEZ, and RYMER, Circuit Judges.
RYMER, Circuit Judge:
John Gary Arredondo appeals from the district court‘s denial of his
I
Arredondo and Robert Reed lived in different rooms in an old hotel in downtown Los Angeles. They were friends and occasionally borrowed money from each other, but they got into a fight on the
Arredondo‘s version was quite different. Arredondo testified that he went to Reed‘s room to collect a debt, and that for no reason, Reed hit him in the head and then pulled him into his room, causing the two men to fall. As the two stood up, Reed hit Arredondo two more times. At that point, Arredondo, acting in self-defense, hit Reed twice. Reed responded by hitting him in the head with a broom. The two men again fell down. Reed stood up and approached Arredondo with a knife. Arredondo grabbed Reed and hit him four times, hoping to render him unconscious. Reed dropped the knife and fell onto the bed. Arredondo left.
Before trial, Arredondo‘s counsel indicated that he intended to call Jeffrey Hansen to testify that he and a companion saw Arredondo knock on Reed‘s door and ask for money. Reed opened the door, and punched Arredondo in the face, causing Arredondo to fall backward and then forward into Reed‘s room, landing on Reed. The door closed, and Hansen and his companion left.
Hansen, who was facing an alcohol theft charge in an unrelated Three Strikes case in which four prior convictions were alleged, was represented by Deputy Public Defender Peter Swarth. Swarth acknowledged that the prosecutor could properly impeach Hansen on cross-examination with his prior felony convictions, but explained that Hansen‘s answers could potentially incriminate him in his own trial if Hansen later decided to contest whether he had suffered the priors. Swarth also acknowledged that it would be reasonable to question Hansen about his pending charge because theft is a crime of moral turpitude, yet explained that such questioning could get Hansen “into very [sic] trouble.” Finally, Swarth told the court that he believed Hansen was on parole, raising the possibility that Hansen‘s presence at the hotel or his association with Arredondo could constitute a parole violation. Swarth asked to be present during Hansen‘s testimony so that he could review with Hansen on a question-by-question basis the decision whether to invoke his
When that time came, Arredondo offered to stipulate to Hansen‘s convictions but the prosecution declined. Swarth represented that he had advised Hansen not to testify. Hansen was sworn, and stated that he wanted to “take the Fifth.” The trial court concluded that it could not order Hansen to testify, particularly given Swarth‘s advice and the substantial liability he was facing. The court then ruled that Hansen should not be called in front of the jury or be allowed to testify on direct as he could not be cross-examined.
Arredondo was convicted and subsequently sentenced to an aggregated term of 45 years to life on account of four prior
Arredondo filed a habeas petition in district court claiming that his constitutional right to present a defense was violated when the trial court accepted Hansen‘s invocation of the
II
We review a district court‘s decision to grant or deny a
First, however, we must consider whether a Teague analysis is required. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), teaches that a new rule of constitutional law cannot be applied retroactively on federal collateral review to upset a state conviction or sentence unless the new rule forbids criminal punishment of primary, individual conduct or is a “watershed” rule of criminal procedure. Caspari v. Bohlen, 510 U.S. 383, 396, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). The Supreme Court has made clear that federal courts must decide at the outset whether Teague is implicated if the state argues that the petitioner seeks the benefit of a new rule. Id. at 389, 114 S.Ct. 948. This is true regardless of whether the case is governed by AEDPA. Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We fully recognize our Teague obligation, but do not believe it has been triggered in this case. The state does mention Teague in its brief, but only in passing. The brief simply asserts that reasonable jurists could conclude under the facts of this case that Arredondo‘s claim lacks merit. This is not an argument, let alone a developed argument. Normally we decline to address an issue that is simply mentioned but not argued, Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir.2001), and we see no reason to depart from that practice in a habeas appeal. If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed, the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an
III
Arredondo‘s appeal turns on his view that the
Arredondo‘s reliance on Ninth Circuit or other circuit authority is misplaced. He must show that the California Court of Appeal decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
In Chambers, the defendant was unable to cross-examine a witness who had repudiated a prior confession or to present witnesses who would have discredited that witness‘s repudiation and demonstrated his complicity in the crime for which the defendant was accused because of the state‘s
In light of these precedents we cannot say that the California Court of Appeal decision was contrary to, or an unreasonable application of, law established by the Supreme Court. There is no question that a witness‘s credibility is properly subject to exploration once he takes the stand. Indeed, Arredondo does not quarrel with the prosecution‘s right to discredit Hansen by his criminal record or with Hansen‘s right to invoke his
While the right to call witnesses on behalf of the defense is well established, the Supreme Court has indicated that the right is not without limitation and it has never indicated that a trial court has no discretion in determining whether the areas on which a defense witness has properly invoked the
AFFIRMED.
KOZINSKI, Circuit Judge, concurring in the result:
I join the majority‘s analysis of the duty of states to provide meaningful argument under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). I also concur in the result reached by the majority. I write separately because I disagree with the majority‘s conclusion that the state courts here adopted a not unreasonable application of clearly established federal law.
Arredondo‘s trial was, at bottom, a credibility contest between Arredondo and his alleged victim, Reed, that came down to this question: Which of these men threw the first punch and, therefore, was more likely the aggressor in the fight that ensued in Reed‘s room? To help answer that question, Arredondo sought to call Jeffrey Hansen as a witness. Hansen was the only person at trial, other than Arredondo and Reed, who could offer the jury any direct perspective on this critical issue. Nevertheless, the trial judge excused Hansen from testifying, because Hansen planned to invoke the privilege against self-incrimination in response to certain questions on cross-examination by the prosecution. The California Court of Appeal affirmed.
Arredondo argues in part that the exclusion of Hansen‘s testimony was either contrary to, or involved an unreasonable application of, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). See Williams v. Taylor, 529 U.S. 362, 405-09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000);
Whether the exclusion of Hansen‘s testimony involved an unreasonable application of Washington is a much tougher question. The majority reasons that, because Washington did not involve the assertion of the privilege against self-incrimination, it is not controlling. But “[s]ection 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). Indeed, the Supreme Court framed its holding in Washington more broadly than the facts of the case before it, establishing the principle that a state may not “arbitrarily den[y a defendant] ... the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to
That principle is surely applicable here. Quite simply, to paraphrase Washington, the state trial court denied Arredondo the right to put on the stand Hansen, a witness physically and mentally capable of testifying to events he had personally observed, whose testimony would have been relevant and material to Arredondo‘s defense. The only question is whether the court did so in an objectively unreasonable manner—as always, the devil is in the details.
If Arredondo had sought to compel Hansen to relinquish the privilege and testify to self-incriminatory matters, I would have no trouble joining the majority. As my colleagues point out, “a defendant‘s right to present relevant testimony is not without limitation and ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Maj. op. at 783 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). Indeed, the Washington Court made clear that its holding in no way trumped the privilege. Washington, 388 U.S. at 23 n. 21, 87 S.Ct. 1920.
But Arredondo did not seek to extinguish Hansen‘s invocation of the privilege. Rather, he asked the trial judge to compel Hansen‘s testimony on nonincriminating matters. The trial judge refused, and the court of appeal affirmed on the rationale that “Hansen‘s assertion of the
That is a close question, and it merits close consideration. In habeas cases, “[w]e employ a balancing test for determining whether the exclusion of testimony violates due process.” Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir.2003) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.1985)). We “weigh the probative value of the evidence, its reliability, whether the trier of fact can evaluate the evidence, whether the evidence is cumulative, and whether the evidence proves integral to the defense theory in evaluating whether admissible evidence was constitutionally excluded,” as well as the state‘s interest in excluding the evidence. Id. (citing Miller, 757 F.2d at 994).
Hansen‘s testimony was clearly probative. Hansen was a direct percipient witness to the start of the fight in the hallway outside Reed‘s doorway. He would have testified that he saw Reed throw the first punch. Thus, his testimony would have tended to support Arredondo‘s claim that Reed, not Arredondo, was the aggressor. Further, by backing part of Arredondo‘s story, Hansen‘s testimony would also have bolstered Arredondo‘s credibility, thus tending to support Arredondo‘s account of the events that unfolded inside Reed‘s apartment and his claim that he acted in self-defense.
As to reliability, there were no circumstances that rendered Hansen‘s testimony inherently unreliable. The prosecution offered no evidence, for example, that Hansen was not on the scene to witness the beginning of the altercation, nor did the prosecution suggest that Hansen‘s ability to perceive or recall the events was somehow impaired. Moreover, the record reveals no facts suggesting that Hansen‘s testimony would have been self-serving in any way, or that he personally knew either
In addition, there surely can be no doubt that the jury would have been able to evaluate Hansen‘s testimony. It presented no complicated or technical issues to navigate and was merely a straightforward narrative of what Hansen witnessed in the hallway of Arredondo‘s and Reed‘s residential hotel.
Hansen‘s excluded testimony also would not have been cumulative, since he was the only eyewitness available to corroborate Arredondo‘s account of the start of the altercation. See United States v. Parry, 649 F.2d 292, 296 (5th Cir. Unit B 1981); cf. United States v. Dring, 930 F.2d 687, 690, 695 (9th Cir.1991) (where one witness corroborated defendant‘s testimony, the similar testimony of another witness would have been cumulative); United States v. Tafollo-Cardenas, 897 F.2d 976, 979 (9th Cir.1990) (same).
And, finally, if Hansen‘s testimony was not essential to Arredondo‘s defense, it was quite significant. Even the trial judge acknowledged that Hansen‘s testimony would have been helpful to Arredondo, for what was at the heart of this case was whether Arredondo acted in self-defense.1 If Reed had been shown to be the aggressor, Arredondo‘s self-defense theory would have been more plausible. Perhaps nothing speaks more to the importance of Hansen‘s testimony than the fact that the prosecution strove so mightily to keep it out—refusing even to stipulate, as defense counsel was willing to do, to Hansen‘s prior convictions in order to lessen the need for Hansen to invoke the privilege.
Of course, that all of these factors weigh in Arredondo‘s favor is not conclusive. We must also take account of the state‘s interests, Alcala, 334 F.3d at 884, for “[e]ven relevant and reliable evidence can be excluded when the state interest is strong,” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983). The court of appeal concluded that, had Hansen testified and invoked the privilege against self-incrimination in response to the prosecution‘s cross-examination, the trial court would have had to strike all of Hansen‘s testimony, thus wasting the time of the jury and the court. The court of appeal reasoned that striking the entirety of Hansen‘s testimony would have been necessary because the state would not have been able to openly probe certain aspects of Hansen‘s credibility.
That assertion does not stand for two reasons: It isn‘t entirely true and, even if it were true, striking all of Hansen‘s testimony would still have been an extreme sanction unjustified in light of Arredondo‘s constitutional right to present a defense. The state indicated that it would have sought to impeach Hansen‘s testimony on two bases—that Hansen had four prior convictions and that a charge of alcohol theft was pending against him.1 As to the
All that really hung in the balance for the state, then, was whether it could impeach Hansen with the circumstances that formed the basis of his pending charge. The prosecution could have introduced this evidence as proof that Hansen had committed a crime of moral turpitude, and did seek to use it to impeach Hansen‘s statement to Arredondo‘s investigator that Hansen did not know Reed because he did not associate with alcoholics. Or, to dispense with the legalese, the prosecution wanted to tell the jury that Hansen was a thief and a drunk and thus not believable.
Even assuming that this proposition would have carried any real weight with the jury, it was objectively unreasonable for the trial court to excuse Hansen‘s testimony and for the court of appeal to affirm. The prosecution had available a means to introduce Hansen‘s prior convictions by documentary evidence rather than by cross-examination. The prosecution further remained free to test the reliability and truth of Hansen‘s testimony by exploring the circumstances under which he witnessed the events in question. And, finally, the other factors under Miller fairly outweigh the prosecution‘s desire to further impeach Hansen‘s credibility with the circumstances of his pending charge. This is so because the issue of Hansen‘s credibility, while important, did not go to the heart of the matter to which Hansen was testifying. The facts underlying Hansen‘s pending alcohol theft charge had no bearing on what he saw in the hotel hallway. Hansen‘s credibility was, in other words, a collateral issue. See United States v. Gould, 536 F.2d 216, 222 (8th Cir.1976); United States v. Brierly, 501 F.2d 1024, 1027 (8th Cir.1974); Monsoor v. Gagnon, 497 F.2d 1126, 1130 (7th Cir.1974); United States v. Norman, 402 F.2d 73, 77 (9th Cir.1968); United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.1963); Bd. of Trustees v. Hartman, 246 Cal.App.2d 756, 764-65, 55 Cal.Rptr. 144 (1966); cf. 8 John Henry Wigmore, Evidence § 2276, at 457 (McNaughton rev., 1961) (“A witness of course does not, simply by testifying (and ‘putting his veracity in issue‘), waive his privilege with respect to his criminal acts relevant only to impeach his credibility.“). And the striking of a witness‘s entire testimony is a drastic measure that may be unmerited when the witness invokes the privilege on cross-examination as to collateral matters.2 See Denham v. Deeds, 954 F.2d 1501, 1504 (9th Cir.1992) (noting in
Of course, these cases are not clearly established federal law from which Arredondo can draw the constitutional principle that he alleges was violated in his trial and, thus, as the majority recognizes, do not by themselves mandate that his conviction be vacated. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.2002). But neither are these cases irrelevant, for circuit law may be “persuasive authority” on the question of whether a state court‘s determination was unreasonable, Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003), and these cases remind us that a collateral issue, such as credibility, may be important and yet nonetheless must sometimes be subordinated to the need of the factfinder to hear relevant evidence.
Because the state‘s interest in impeaching Hansen on cross-examination was outweighed by the other factors under Miller, I would hold that the California Court of Appeal‘s decision was an objectively unreasonable application of Washington. Ultimately, however, the error committed by the trial court cannot provide the basis for habeas relief, as it was harmless. The jury heard both Arredondo and Reed testify. Reed admitted that he was the first to make physical contact by pushing Arredondo with his hands, making the question of who threw the first punch less significant. The jury also heard evidence that the knife Arredondo claims Reed wielded was later found in Arredondo‘s girlfriend‘s apartment, consistent with Arredondo‘s story that he took away the knife after Reed passed out. This evidence corrobo-
Because I believe exclusion of Hansen‘s testimony was harmless, I concur in the result reached by the majority. In addition, I join my colleagues’ analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Beyond that, I cannot go.
As a final note, I distance myself from the majority‘s parting observation that “the defense is not without options in these circumstances [such as Arredondo‘s], for immunity may also be sought for the witness.” Maj. op. at 784. Certainly defense counsel may seek immunity, but this will give little consolation to criminal defendants in California. In California, most requests for immunity will fall under section 1324 of the Penal Code, which provides a means by which a prosecuting agency can seek immunity for a state witness.4 1 B.E. Witkin & Norman L. Epstein, California Criminal Law § 231, at 602 (3d ed.2000). It does not provide that a defendant has the right to obtain immunity for witnesses in aid of his defense. As explained in People v. Pineda, 30 Cal.App.3d 860, 106 Cal.Rptr. 743 (1973), overruled on other grounds by Leversen v. Superior Court, 34 Cal.3d 530, 539 n. 4, 194 Cal.Rptr. 448, 668 P.2d 755 (1983), “prosecuting attorneys are vested with discretion in requesting immunity and the state is under no obligation to make a witness available to testify for a defendant by granting him immunity from prosecu-
Notes
In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case. But he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence.