Michael Su Chia v. Steven Cambra, Jr., Warden Attorney General of the State of California

concur, than Thus, rather respectfully I majority join, opinion.

simply CHIA, Petitioner-

Michael Su

Appellant, Warden; CAMBRA, Jr., Attor

Steven

ney of Cali General State

fornia, Respondents-Appellees.

No. 99-56361. Appeals,

United States Court

Ninth Circuit. and Submitted Dec. 2000.

Argued

Filed March

brutally murdered while executing an un sting operation dercover in Monterey Park, California. Michael Su Chia (“Chia”) was convicted in California Supe rior being Court of an accomplice to the murders and participating conspiracy a ambush, rob, Chia, kill agents. and however, that, repeatedly claimed far from a being co-conspirator, he tried to talk one shooters, of the his good friend William Wang (“Wang”), Wei plot. out of the Wang confirmed to local and federal au thorities that nothing Chia had to do with conspiracy. court, however, The trial excluded these being jury. heard Federal law as deter mined Court is clear that process requires that the “minimum essentials of a fair trial” include a “fair opportunity to defend against the State’s right accusations” and the “to be heard in [one’s] defense.” Chambers Mississip v. 284, 294, pi, 410 U.S. 93 S.Ct. (1973). L.Ed.2d 297 The trial court’s deci sion to exclude reliable material evidence of Chia’s innocence therefore constitutes an objectively unreasonable application of clearly established federal law. See Lock Andrade, yer (2003). 155 L.Ed.2d 144 We reverse Dirks, Sacramento, CA, James for the the district court’s denial of petition petitioner-appellant. for writ of corpus habeas and remand with Baker, Deputy Valerie A. Attorney grant Gen- instructions the writ.

eral, California, CA, State of Angeles, Los I. Background Factual and Procedural for the respondents-appellees. Sting Operation A. The DEA evening February On the Agent DEA Nadine Takeshta staked out (“Kow”), apartment of Frank Kow suspected drug p.m., dealer. At 10:10 NELSON, Before: D.W. BRUNETTI pull- Chia’s black Mitsubishi was observed KOZINSKI, Judges. Circuit ing up apartment in front of Kow’s com- friend, plex. Wang, got Chia and his out NELSON, Judge. D.W. Senior Circuit Wang Mitsubishi. removed a hand- agents Drug two En- gun from the rear of the Mitsubishi and (“DEA”) forcement Administration apartment complex. were walked into the A later, up planned Chia went the com- Kow few minutes to rob them of the cash stairs, landing, plex paced drugs. part- on the and then rather than sell them Kow’s top plot, Wang, stood at the of the stairs for several ners in the Chen and followed until came out. driving minutes behind a red Nissan. After distance, togeth- Chia walked back to the Mitsubishi short Kow the agents directed away. night, pull er Later and drove Volvo over to the side of the road. Volvo, car, together and Chia were seen at a Kow exited stood beside the night pointed gun agents. local club. at the agents raised their hands. Chen and day, Kow called Paul The next Seema Nissan, Wang, up pulled behind the (“Seema”), agent an undercover DEA who stopped Wang got Volvo. out of the Nis- posing buyer, was as an interested to san, joined gun, drew his and Kow stand- Tiny at 11:00 a.m. at meeting schedule a ing agents next to the Volvowith the three Naylor’s, a That local restaurant. same still inside. Chen remained behind the agents again DEA morning, observed Nissan, ready quick wheel to make a apart- at Kow’s Chia’s black Mitsubishi getaway. agents After the handed ment, a.m. and a first 10:30 second time money Kow, Wang they opened and fire a.m., Shortly a.m. after 11:30 11:30 oth- agents. Agents on the Seema and Monto- er DEA agents observed the same Mitsu- ya killed, Agent were and Martinez was parking Tiny Nay- bishi enter the lot of seriously wounded. lor’s, where the rendezvous between Kow Wang Kow and in agents and the undercover DEA was fled the Nissan with Chen behind place. scheduled to take In the restau- the wheel. Other DEA lot, agents who in parking standing rant’s Chia was seen were the area rushed to pursue suspects. talking Wang outside his Mitsubishi and Kow fired on the (“Chen”). pursuing agents gentleman, another Mike Chen from inside his Nissan. Chen, agents After The rammed speaking Wang with and the Nissan with an- other opened entered the restaurant. A few vehicle and fire on the occu- minutes restaurant, pants of the reemerged ensuing later he from the disabled car. In the melee, car, killed, got in Kow and back his and was observed Chen were and Wang driving seriously Shortly toward the restaurant’s front wounded. af- en- shootout, trance, briefly ter the nearby where he conversed with Chia was arrested handcuffs, in driving nearby Kow before into a his Mitsubishi. Three alley. sets time, masks, After a he three ski and again brief returned to .45 caliber ammuni- lot, Tiny Naylor’s parking tion were in parked for a few discovered his car. A local minutes, gun merchant again, then drove out before testified that several weeks reentering before the shootout parking the same lot a third Chia had entered his shop companion time. with a and that the com- panion purchased had .45 caliber ammuni- Meanwhile, DEA agents posing three as tion. (“Mar- dealers, Seema, drug Jose Martinez tinez”), George Montoya (“Montoya”), Hearsay B. The Statements got into a Volvo in the restaurant parking Having survived the car chase and lot with Kow agents and drove off. The shootout, Wang separate made four $80,000 bag containing carried a in cash ments to the authorities. with which to sting buy consummate the (the knowing Kow. Not three first statement “First State- ment”) “drug actually dealers” were DEA agents, was made to DEA agents while he severely Bleeding fact, wounded. from from agents was still with Chia. In Wang wounds, Wang spoke explained that gunshot nine with Chia warned him that he participate should not in agents being plan while he was wheeled into because Chen and Kow surgery hospital emergency room. could be trusted. The police, Wang, returned agents pains subject The DEA took to ensure that Chia’s involvement. repeated that he could die understood while third time that Chia was not agents involved in surgery. believed that conspiracy, although he knew about it. surgery Wang’s case he did not survive Wang said that Chia had him dropped off statements would admissible a dying apartment at Kow’s only present and was he, Chen, declaration. admitted that later because he was concerned about planned and Kow “drug had rob the Wang’s safety. dealers,” they who did not know were DEA agents. Wang agents also told the (the Wang’s fourth and final statement himself, Kow, nobody other than Statement”) “Fourth given agents shooting Chen were involved in actual Investigation Federal Bureau of agents. Wang of the murdered further (“FBI”) days two shooting. after shooting admitted to of agents one the Wang only confessed that not plan did he providing three times with revolver and agents to rob the but that he knew in the others with .45 caliber semi-automat- that planned advance Kow to murder ic pistol. Wang again them. stated that Chia told him go through not to with plot. the He afternoon, Later that same while recov- spoke also stated that when he with Chia ering surgery, Wang from made his second lot, in the restaurant he had told parking (the Statement”) statement “Second to a home, go Chia to but Chia remained be- police Wang Pasadena officer. admitted concerned, cause Wang he was that could planned that he had to “drug rob the get hurt. In response questions from conjunction in dealers” with Kow and FBI, the Wang said that the handcuffs Wang Chen. said that he shot two of the found, belonged car to an individ- agents provided stag- details about the Johnny ual named Lee and that did he ing robbery, including of the how Chen anything know about the ski masks. was to follow the Volvo his red Nissan. Wang’s statements to the FBI were con- (the Wang’s third statement “Third not only prior sistent with his statements Statement”) was made to police Pasadena officers, to law enforcement but also with that evening. officers later same The in- independent the DEA observations tape-recorded, terview was and the entire agents at Wang the scene of the crime. tape pros- was admitted into evidence aas accurately him taking described Chia ecution played jury exhibit and for the apartment, Kow’s where delivered a interview, During trial. pistol and ammunition to Kow and learned officers asked about Chia’s involve- of the final plans robbery. for the He also ment in the conspiracy. Wang had not accurately. recounted that he went with previously explained mentioned Chia but nightclub to a that evening, stayed Chia him go through Chia told not to with house, over with him at a friend’s and was plan. pressed by police, When dropped by apartment off Chia Kow’s reiterated Chia was not in- morning. the next he, volved in plot along and that with Kow, trial, Chen and had never split intended to At Chia’s the trial court excluded any drugs money of the or being was stolen entered only the other al- on the merits in state court if the

into evidence: Because two adjudication court in a conspiracy state -resulted deci of the leged members —Kow (1) contrary clearly sion that estab DEA agents killed and Chen—were lished federal law as determined shootout, oth- Monterey Park' (2) States, Supreme or Court the United testify about Chia’s er witness who could involved an unreasonable conspiracy non-involvement clearly Federal law as deter established however, rights invoked Wang. Wang, his Supreme mined Court of the United Fifth Amendment and refused under the 2254(d)(1); § Id. see also An States. trial. testify at Chia’s When Chia drade, 1166; 538 U.S. at evidence of sought to introduce v. Taylor, Williams 529 U.S. defense, the trial court statements in his (2000) (O’Con 146 L.Ed.2d 389 hearsay. inadmissible excluded them as J.). nor, guilty, jury found Chia and the explaining what court him to two terms of im constitutes sentenced application” clearly “unreasonable es prisonment twenty-five years to life for law, counts, Supreme tablished federal Court years nine the two murder' for may held that “a federal murder, habeas court years and two for attempted pos grant the writ if the state court identifies committing sessing firearm while legal the correct governing principle from exhausting his appeals offenses. After be decisions [the Court’s] but unrea courts, state fore the California sonably applies that principle to the facts relief. The sought federal habeas district Andrade, prisoner’s case.” appeal, court On we petition. denied 75, Williams, at (quoting 123 S.Ct. 1166 granted reversed the district court and 413, (O’Connor, 529 at 120 1495 U.S. S.Ct. petition published opinion, in a v. J.)). clearly An application erroneous (9th Cambra, Cir.2002), 281 F.3d 1032 established federal law is not sufficient to holding that the trial court’s exclusion of 75-76, grant petition. Id. at 123 S.Ct. Wang’s exculpatory statements amounted Rather, in order for the writ process rights to a violation of due Chia’s issue, application the state court’s of clear under the California peti Constitution. ly established federal law “must [have Supreme tioned for certiorari to the Court. 76, objectively at been] unreasonable.” Id. grant The Court vacated our S.Ct. 1166. 123 petition Chia’s and remanded for further light Lockyer consideration in v. An “[t]he While term ‘unreasonable’ is drade, 63, 1166, 123 538 U.S. S.Ct. 155 define,” no doubt difficult to the Court has (2003). L.Ed.2d 144 explained that “it a common is term the and, legal accordingly, world federal II. Standard Review judges familiar meaning.” are with its Williams, 410, The district court’s denial of a 28 U.S.C. 529 120 U.S. S.Ct. 1495 J.). (O’Connor, § 2254 petition assessing habeas is reviewed de whether Hill, 1066, novo. application objectively Alvarado v. 252 F.3d of federal law is (9th Cir.2001). unreasonable, 1068 Pursuant to the Anti- will often courts have en terrorism Penalty gage inquiry and Effective Death Act in an fact-bound intensive (“AEDPA”), 2254(d), § of 1996 highly dependent upon particular 28 U.S.C. cir federal may grant given “Although habeas court a state cumstances of a case. prisoner’s application only Supreme binding for a writ of habeas Court law is on the states, corpus adjudicated with respect precedent to claims our Circuit rele- remains

1003 authority determining persuasive vant sive assurances of trustworthiness and is objective- defense, whether a state court decision critical to the the exclusion of that ly Thompson, may unreasonable.” Himes v. statement rise to the level of a due (9th Cir.2003). 848, process Chambers, 336 F.3d violation. 410 U.S. at

302, 93 S.Ct. 1038. “The Supreme Court III. Rights Chia’s Due Process Were Vio- has made clear that the erroneous exclu-

lated critical, sion of defense corroborative evi- may dence key violate both the Fifth The issue before us is whether Amend- process ment due right trial decision to to a fair trial court’s exclude objectively right statements amounts to an un- Sixth Amendment to present a Kuykendall, defense.” DePetris v. clearly reasonable estab- (9th Cir.2001) 1057, F.3d (citing lished federal law as determined Chambers, 294, 1038). Supreme Court. hold that it We is. S.Ct. reliable, were guarantees “[T]he Constitution they were material and would have sub- criminal ‘meaningful defendants a opportu stantially bolstered Chia’s claims of inno- ” nity to present complete defense.’ cence. Kentucky, Crane v. 476 U.S. principal The issue at trial was the un- (1986) 90 L.Ed.2d 636 (quoting derlying nature and motive behind Chia’s Trombetta, 467 U.S. California February day actions on 1988—the (1984)).” 81 L.Ed.2d 413 agents DEA were murdered. Chia’s close right of an accused in a criminal trial proximity to the scene of the crime and his is, essence, process right to a frequent Chen, Wang, interaction with fair opportunity to defend against suspect Kow led California to that he was Chambers, State’s accusations.” part of the criminal conspiracy to am- “ 93 S.Ct. 1038. ‘A person’s right trial, agents. bush the federal At Califor- charge against reasonable notice of a expert, nia called an opined who him, and an opportunity to be heard in his behavior was consistent with that of right day defense—a to his in court—are engaging someone in “counter surveil- system basic in our of jurisprudence....’” speculated lance” and that he was attempt- Oliver, (quoting Id. In re ing to thwart law enforcement operations. (1948)). 92 L.Ed. 682 Chia, hand, on the other claimed that he only acting was aas concerned friend. He In a proceeding, habeas we have that maintains he is innocent of the traditionally applied balancing test to charges played and that he no in role determine whether the exclusion of evi conspiracy agents. to murder the federal in petitioner’s dence the trial violated court proximity His close to the scene of the process rights, weighing impor crime, Chia, according necessary was tance of the evidence the state’s friend, Wang, make sure that his was not in Stagner, interest exclusion. Miller v. by (9th harmed the other members of the con- Cir.), F.2d amended on other spiracy (9th Cir.1985). and Kow. grounds, In 768 F.2d 1090 —Chen interests, must, balancing these we on the A. Due Process hand, weight one afford “due to the sub law, clearly It is established federal in preserving orderly stantial state interest Court, trials, by judicial efficiency, as determined in in and exclud Miller, a hearsay persua- ing when statement bears unreliable ... evidence.” Here, hand, F.2d at 1453. the trial Perry, we must the other F.2d at 995. On only prevented decision not Chia principle that court’s over the vigilant guard stand defense, precluded it presenting from a full funda- a defense is right present “[t]he jury hearing from material evidence system of constitutional in our mental” Rushen, his innocence. 713 F.2d Perry v. jurisprudence. Cir.1983) (9th (noting 1450-51 Third Statement to the Pasa-

“[bjecause important, lan- right this is so Police dena commentary from some cases and guage right that the defendant’s carries suggests four that Chia Of the trial, that the exclusion of weight, and Third sought conclusive to introduce at unconstitutional” any relevant evidence is far the most reliable Statement original)). light in In of these (emphasis role and material as to the issue Chia’s interests, courts federal habeas competing conspiracy. Wang informed Pasa weight “determine what the various must officers no uncertain terms dena carry placed when on the interests will partici tried to talk him out of Chia scales,” ultimately and deter- agents. id. pating plot to rob the federal state Thus, mine whether the decision according Wang, only did question evidence in court to exclude the play conspiracy, no role in the he or unreasonable. Clearly, was reasonable it. this prevent tried to admission inculpates Wang by removing all doubt as assessing the interests at issue rea, exculpating to his mens while Chia. case, balancing test five-part we invoke the Chia, plot discussed the with in- formulated in Miller. These factors it, go through warned him not to with (1) probative value of the ex- clude: despite prevent and Chia’s efforts to (2) issue; evidence on the central cluded forward, conspiracy going de (3) it reliability; capable whether its anyway. it go cided to ahead with fact; (4) trier of whether evaluation probative or The value of the Third State- it is the sole evidence on the issue (5) cumulative; importance it con- ment and its to Chia’s defense merely and whether question. cannot into If major part attempted be called serious stitutes believed, Miller, Wang’s statement exonerates 757 F.2d at 994. defense. whereabouts, movements, and

Chia. B. Statements Were Reliable during actions the commission before Critical to Chia’s in dispute. the crime are not Defense aimed— issue is whether his behavior was case, fac present In the the Miller facilitating as California contends—at overwhelmingly tors in Chia’s favor. tip crime, encouraging the or—as Chia may not reverse a state court Although we discouraging conspiracy the claims—at it is inconsistent simply decision because protecting Wang placing himself by a rule the Ninth Cir with established jeopardy. in further The Third Statement cuit, Lindsey, Van Tran v. F.3d d may telling confirms Chia be the (9th Cir.2000), rev’ on other truth; moreover, only it constitutes Andrade, 75-77, 538 U.S. at grounds, piece of collateral evidence that substantial factors application S.Ct. of Miller disposal. Chia had at his Wang’s statements were persuades us Self-inculpatory long statements have reliable and crucial to Chia’s defense. both recognized bearing strong not as indicia designed “State rules are been [of evidence] See, justice, reliability. e.g., it.” of Fed. R. Evid. promote to frustrate but 80b(b)(3); States, Williamson v. United opportunity. “We break ground no new 129 observing that an component essential of (1994) (“[R]easonable L.Ed.2d 476 people, procedural fairness anis opportunity to be even Crane, people reasonable who are espe- heard.” 476 U.S. at honest, cially not to tend make self-incul- 2142. It was unfair for trial court to patory they statements unless believe permit to present California evidence as to true.”)- them to be This is such a state- theory actions, its behind Chia’s but to ment. The self-inculpatory nature of deny Chia the same opportunity right. Wang’s Third Statement to the Pasadena The guarantee Constitution’s of pro- police convincing is evidence of its inherent cess ring would hollow if a criminal defen- reliability. very The words uttered dant as Chia such were prevented from Wang to the Pasadena exculpate reliable, presenting material evidence of Chia, while simultaneously inculpating trial, his innocence when such evidence himself. The inculpatory force of the lies at the heart of his defense. Inherent obvious, Third Statement and indeed within the Constitution’s promise of due California at oral argument conceded process lies the cardinal principle that no words, very it,” “he told me don’t do criminal defendant will deprived of his inculpate Wang once and exculpate Chia. liberty a full absent and fair opportunity to the Miller balancing The third factor present evidence his defense. For the test, whether the capable evidence is state ignore court to these fundamental fact, evaluation trier of is also satis- principles Wang’s and exclude Third State- fied. If the Third Statement was intro- ment from consideration jury duced, jury would have been called amounts to an unreasonable upon weigh plausibility of Califor- clearly established federal law. theory nia’s against Wang’s statements. First, Second, Such 2. are determinations well within the and Fourth province of the system finder. In our Statements fact justice, of criminal it is not uncommon for First, Second, and Fourth juries upon to be credibility called make sufficiently Statements were also reliable determinations or to veracity assess the and relevant to have been admissible at testimony declarant’s at trial. Chia’s trial. Their objec exclusion factor, The fourth whether tively Third unreasonable a matter of federal Statement is the sole evidence on only the issue law and serves to enhance our doubt cumulative, merely or is also satisfied. as to the fairness trial and the only was the member of alleged validity of the conviction that resulted conspiracy who survived the shootout with from it. DEA, testify refused to Fourth Statement Thus, trial. Chia only was left with FBI, Wang again confirmed that at- Chia

Wang’s prior support statements to his tempted to go convince him through claim of innocence. best and with the agents. scheme to kill the DEA evidence that possessed to substanti- turn, Wang, go told Chia to home. Chia ate his claims Wang’s were statements. remained, said, out for watch his California allowed to safety, present, robbery. not to further the Fur- through witness, expert thermore, its Govern- admitted that he knew in theory ment’s jury. of case to planned advance Kow kill “drug Chia should have been afforded a similar dealers” as well as rob With each them. seeks to agents. more de- DEA When defendant Wang recalls

re-telling of events statement, recovers from sur- an as he introduce out-of-court (presumably tail more statements become gery) and the of the contents of corroboration Wang’s As self-inculpatory. weigh- is a factor ment with other evidence Chia, they also de- exonerate progressively Chambers, reliability. ing in favor of its had for a Wang might have stroy any hope All four of at 93 S.Ct. 1038. mitigation based on defense or sentence in Wang’s statements this case corroborate or intent. knowledge lack of the DEA’s version and are consistent with of events. First and Although Wang’s Sec directly exculpate do not ond Statements excluding Wang’s interest in California’s Chia, inculpate Wang. In they do of course minimal, impor- statements was while the statements, Wang freely describes these im- tance of the evidence to Chia was crime, and execution of the planning mense. Given that the statements were having partici never mentions Chia as but extraordinarily relevant to the ultimate true, testimony help pated. If this would innocence, question guilt of Chia’s or un- never involved demonstrate that Chia was any analysis der reasonable of the consti- conspiracy. case, in principles tutional at issue whole, Taken as a the statements bear present should have allowed to been reliability crucial strong indicia of and are jury of statements for the evidence the First State- to Chia’s defense. While to hear and evaluate. None the state- technically meet the defini- ment does not ments was cumulative of other evidence declaration, given it was dying tion of a trial, already nor was the presented in when knew that he was real jury likely any difficulty to face substantial danger of imminent death—a traditional assessing reliability in and relevance of reliability. Similarly, indicium of the Sec- the statements. Fourth made ond and Statements were recovering was still while the declarant Application C. The State Court’s Moreover, major surgery. all the Clearly Established Federal Law was self-inculpatory, also indi- statements were Objectively Unreasonable in this Case cating reliability. their inherent First, Second, and Fourth State- case, trial present In the court ments, believed, if are evidence correctly gov identified Chambers as Although interest innocence. California’s it erning legal applied rule but to the facts hearsay rules “is based on enforcing its objectively of this case unreasonable experience grounded in the notion that manner. Chambers held that when a untrustworthy pre- evidence should not be hearsay “persuasive statement bears as Chambers, fact,” sented to the triers of 410 surances of trustworthiness” and is critical U.S. at 93 S.Ct. the evidence defense, may it not be excluded strong issue this case bears indicators application hearsay “mechanistic” of state trustworthiness, easily capable and is Chambers, rules. jury. having been evaluated 1038. The trial court’s decision to exclude any statements was without rea credibility and worth of each and, such, just sonable basis by Wang assertion made to the authorities kind of mechanistic of state consistency is further enhanced their forbids. independent with the observations of the rules Chambers

1007 importance As to the of Wang’s were not admissible. The trial court ob- statements, accurately the trial court sum served that while a may statement “a be marized what was at for Chia: stake classic declaration penal against [inter- est],” Chia, it could activity Mr. still lack the by reliability

The if taken “that itself, particular this subject is to section requires.” two reasonable inter- The trial one, judge pretations: that he commented simply try- was that he did not believe other, that ing help buddy out the and the statements you made “while are course, full knowing well what his clutches of the fall § law” under 1230’s buddy doing, was reliability. he was there to assist definition of and to facilitate and to encourage and however, analysis, Our shows aid and everything abet and else. Wang’s compelling bear indicia Despite clear posi- statement of Chia’s of reliability. The trial court engaged tion, the trial judge decided that classic example of prohib- what Chambers helpful statements were not to the defense. its: “[W]here rights directly constitutional patently We find this conclusion to be un- affecting the guilt ascertainment of are reasonable. stated Chia told implicated, may rule not be him not to commit the crime and that Chia applied mechanistically defeat the ends was not involved in furthering conspir- justice.” Chambers, 410 U.S. at 93 acy. These clearly helpful statements are S.Ct. 1038. to Chia. If by jury, they believed exon- The trial court’s post-arrest distrust of erate him. they While also show that Chia statements is also misplaced. The United plot advance, knew of mere knowl- States succinctly Court has ex- edge is not sufficient under California law plained circumstances in which post-arrest to sustain a conviction under an accomplice “ statements are suspect: ‘Due to his Swain, theory. People See v. 12 Cal.4th strong implicate motivation to the defen- Cal.Rptr.2d 49 909 P.2d himself, dant and to exonerate a codefen- (1996). dant’s statements about what the defen- statements, As to reliability of the dant or said did are less credible than the trial court that Wang’s ruled ” ordinary hearsay Williamson, evidence.’ ments did not “match the [Cal. Evid.Code] U.S. 2431 (quoting S.Ct. 1230 definition” of reliability.1 Although Illinois, Lee the trial acknowledged court (1986)). 90 L.Ed.2d 514 This ratio- against statements could be admitted him applies nale where a codefendant incul- they his own trial because were state- pates the defendant in order exonerate interest, against penal ments the court just himself. Here opposite, did held that a different applied rule because exonerating Chia inculpating while himself. party to this case. Ac- cording court, statements, Court of Appeal California regardless nature, self-inculpatory of their made the same error as the trial court § 1. California Evidence Code liability, reads as the risk of civil or or so criminal far follows: "Evidence aof statement a de- tended to render invalid claim him having another, knowledge clarant sufficient or such a risk of created subject hatred, ridicule, is not made making object inadmissible the hear- him an or say rule if the disgrace community, declarant unavailable as a social that a rea- statement, made, witness and the position when sonable man in his would not have contrary so pecuniary far to the declarant's or made the statement unless he believed it interest, proprietary subjected so far or him to true.” 1008 surveillance,” Wang’s post-arrest that one of criminal “counter

when it concluded unreliable, citing People process of basic fairness and due principles statements were 870, Cal.Rptr. present 206 that Campa, require v. 36 Cal.3d allowed to (1984). 114, 634, how Campa, P.2d 640 material evidence of his innocence such 686 ever, [may] statements as post-arrest prosecutor’s identifies that “the case encoun- a declarant inherently suspect meaningful “where ter and ‘survive the crucible of ” Crane, custody exculpate himself testing.’ seeks adversarial 476 U.S. 690-91, Id. In by implicating suspect.” (quoting another 106 2142 S.Ct. United case, declarant, Cronic, Wang, never even this States v. 466 U.S. 104 (1984)). All of the rele exculpate tried to himself. S.Ct. 80 L.Ed.2d 657 For it exculpatory per only through vant statements at issue such an examination of the Chia, Federal habeas Wang. tained to Government’s evidence that we can ascer- requisite degree precision relief does not in most circumstances lie tain with of justice. Estelle v. for errors of state law. See its on the scales of worth On McGuire, us, however, firmly S.Ct. U.S. record before we are (1991). comment on 116 L.Ed.2d 385 We convinced that such an examination never Campa only point again and, out that accordingly, occurred a mistake of reasoning underlying appel the California proportions perpetrated constitutional suspicion post-arrest late court’s of state rights of defendant. obviously apply ments does not to the facts D. Conclusion

of this case. foregoing light For the reasons and in Stewart, decision in Our LaGrand Supreme the standard set out (9th Cir.1998), appli- F.3d 1253 is also not Andrade, Court we conclude that LaGrand, cable here. Karl LaGrand’s Wang’s four statements were both reliable separate confession included “two and crucial to Chia’s defense. Because First, ments.” he admitted that he trial court’s exclusion of these statements victims, second, stabbed the and he said clearly was an unreasonable LaGrand, his, that Walter a relative of did established federal law as determined anyone. not stab Id. at 1267. heldWe States, Court the United that the exclusion of Karl’s confession we reverse the decision of the district trial Walter’s did violate Walter’s due court and remand with instructions process rights because “a statement grant corpus the writ of habeas unless incriminating includes both declarations grants California Chia a new trial within that, corollary declarations taken seventy days of the issuance of this Court’s alone, declarant, inculpatory are not mandate. separated portion must be actually incriminating that is of the declar- REVERSED and REMANDED. ant exception.” admitted under the Id. at Williamson, (citing BRUNETTI, Judge,

1267-68 Circuit dissenting: 2431). 599-600, Here, key I dissent because statements do portions Wang’s statements that excul- reliability, not bear sufficient indicia of corollary; they pate Chia are not are di- trial California court’s exclusion of rectly inculpatory Wang. these statements as inadmissible Finally, given jury deny that the evi- did not process rights heard Chia his due expert dence from v. Mississippi, California’s Chia’s under Chambers (1973). observed behavior could be construed as 35 L.Ed.2d 297 Having asserted his Fifth ing Amendment of the inmen the (e.g. Volvo Kow shot self-incrimination, right against Wang was Agent Montoya and grabbed money the a unavailable serve as witness in Chia’s bag and Wang Agents shot Seema and Thus, trial. sought Chia to introduce Martinez) attempt Kow, Chen, and the by hearsay by Wang statements made escape himself to in the Nissan. He nature, police, that were in exculpatory as described eventual capture. their He did against penal declarations interest.1 See not mention Chia at this time. (West 1999). § Cal. Evid.Code Due to a malfunction in tape the record- trial court determined that Wang’s state- er during interview, the second a third did not fall hearsay within this ex-

ments interview was conducted on the evening ception, and that the exclusion of the state- February Wang 1988. provided a simi- did not deprive ments Chia his due lar confession to that obtained in the sec- process rights under Chambers. order ond During interview, interview. the third to determine whether exclusion of the however, Wang was also asked about the hearsay statements rendered Chia’s trial black by Mitsubishi seen police. the Wang fundamentally unfair under Sixth and explained the belonged Mitsubishi Amendments, Fourteenth we exam- must his friend Wang Michael Chia. said that he ine the statements themselves. told Chia about plan, and that Chia Co-conspirator Wang was inter- first warned him against involvement because by police viewed on February Chen might and Kow betray him. hospital emergency prior room undergoing his surgery. Before receiving The fourth and most detailed statement statements, police informed by Wang made came on February injured Wang badly he was and could Wang when by was interviewed an FBI possibly die from his gunshot several agent. Wang stated that Kow asked him a during surgery. wounds Wang stated that week before the incident to him help rob February on 1988 he had entered into and kill “drug Wang again dealers.” an agreement with Kow and Chen to steal said that he told his friend Chia about the $60,000 from drug some Wang dealers. plan and against that Chia warned him shooting admitted to agents one of the and involvement because Kow and Chen could said anyone that he did not know of else not be trusted. Chia nevertheless drove shooting involved the actual other than Wang in Chia’s Mitsubishi to and from himself, Kow, and Chen. apartment Kow’s night on the of February

A that Wang second statement was so could a gun taken from deliver p.m. on February 3:30 ammunition and to plans finalize the for after Wang robbery/murders. survived the surgery. Wang Chia and later told a he, Pasadena officer that went to dinner the 8000 Club and stayed Kow, and planned Chen night rob and murder at a friend’s house. The next “drug dealers.” He the shoot- morning, detailed apartment. Chia was Kow’s provides: 1. Section liability, to the risk of civil or criminal or so far tended to render invalid claim him Evidence of a statement a declarant hav- ing another or created such a knowledge risk subject sufficient hatred, ridicule, making object him an made inadmissible or rule disgrace community, if the social in the declarant is unavailable aas witness statement, made, position and the when man in his was so far reasonable would not contrary pecuniary to the declarant’s have or made statement unless he believed interest, proprietary subjected or so far him toit be true. Exclusion of such Tiny Nay- toWang Kow and drove Chen the level of a may rise to a look out acting lor’s.' While clearly es- violation. Id. Once lot, process saw parking restaurant identified, law has been lot. federal around the tablished driving Mitsubishi the state whether watching we must determine that Chia Wang explained to, “contrary or involved ruling was not to do court’s again told him and out for the estab- of’ home, Chia an unreasonable go but Chia it. told Andrade, 538 U.S. Lockyer v. law. Wang. Wang then lished for out stayed watch 144 63, 73, L.Ed.2d escape, 123 S.Ct. 155 robbery, of the recounted details (2003). clearly to” “contrary A decision is capture. if the court “con- federal law established affirmed Appeal of Court The California materially facts that are set of fronts a the determination trial court’s a Court indistinguishable” from fall within did not four statements decision, a differ- reaches but nonetheless provision penal interest against statement of An- part The Id. final ent result. § Under 1230. California of Cal. Evid.Code the lower prong is whether drade ’s second penal interest law, “a declaration legal governing the correct court identified sec Evidence under Code admissible [is] it to unreasonably applied but principle, to those statements only as tion 1230 The 123 1166. case. Id. at S.Ct. disserving the in specifically are which that the lower court’s Supreme Court held No as collateral of the terests declarant. law clearly established application of the People v. permitted.” can be sertions unreasonable,” not “objectively must be 85, 105, Garcia, 171 Cal. Cal.App.3d 115 Id. merely incorrect or erroneous. (internal cita (Cal.Ct.App.1981) Rptr. omitted). Ap of The Court tion California that the dis- majority has The concluded not was interested found that Chia peal reliable “decision to exclude trict court’s Wang’s portions the admission objec- ... an constitutes material evidence specifically disserved statements which application” of tively unreasonable (such state Wang’s as Wang’s interests I p. 999. rule of law. See Chambers his own involvement regarding ments of the An- prong neither disagree, because DEA shooting of the robbery test, granting warrant which would drade Rather, sought only to use agents). Chia been corpus, for habeas has petition was assertions collateral rules hearsay It is true that satisfied. shooting and that in the actual not involved mechanistically to de- applied “may not partici from Chia tried dissuade Chambers, 410 justice.” feat ends Therefore, all. enterprise pating However, 93 S.Ct. 1038. U.S. court, Wang’s appeal according to the “materially indis- of this case are facts The properly were excluded. statements (Andrade, tinguishable” U.S. with affirmed Supreme Court California 1166) and, therefore, Chambers, out comment. court’s the district exclusion contrary Cham- correctly statements The has identified majority Second, the district of law. law bers rule clearly established rule of federal to exclude the statements court’s decision agáinst hearsay allows which statements objectively applica- is not unreasonable into when to be evidence interest admitted rule tion of Chambers because “persuasive assur- bear the statements evidence of lacked crucial sufficient and are statements ances trustworthiness” Chambers, not corroborated. reliability and were 410 U.S. at to the defense. are fundamental There differences be- of a .22 caliber revolver subsequent Wang’s hearsay tween statements and the purchase weapon), new hearsay Chambers, statements excluded in and the “provided considerable assur- has failed to majority explain this case why ance of reliability.” their Id. at should distinguished. not be Chambers Court overturned and convicted of tried the murder of a decision, state trial court’s holding that to policeman in Mississippi, shortly although, deny Chambers the opportunity to treat crime, third-party, after the Gable Mc- McDonald as an adverse witness after he Donald, had confessed to three friends on repudiated his confession on the stand at separate occasions he killed the officer Chambers’ trial and to exclude and he later made a sworn confession to testimony friends, of McDonald’s three Chambers, the crime. confessed, to whom he deprived Chambers S.Ct. 35 L.Ed.2d 297. Chambers’ a guaranteed fair trial by process. defense centered on showing that Mc- Id. at 93 S.Ct. 1038. police Donald had killed the officer. Id. at court, by excluding state Wang’s 289, 93 S.Ct. 1038. The state court re- statements, did not “a set of facts confront fused to allow Chambers to treat Mc- materially that are indistinguishable” from Donald, defense, called the as an ad- Chambers, but nonetheless reach a differ- verse repudiated once he witness his Andrade, ent result. 538 U.S. at sworn confession on the stand. Id. S.Ct. 1166. While both cases involved the 93 S.Ct. Mississippi’s 1038. common-law statements, exclusion hearsay the facts prohibits rule impeaching one’s own wit- of Chambers are distinguishable from ness. Id. at 93 S.Ct. 1038. The court particular case. Of importance in rejected also attempt Chambers’ to intro- Chambers, each McDonald’s confessions duce testimony witnesses, the of three was spontaneously made to a ac- close whom McDonald shooting had admitted quaintance shortly after the had murder officer, the on grounds the prof- occurred, was corroborated some other testimony fered hearsay. was at 292- Id. case, evidence in the and was “self-incrimi- 93, 93 1038. Under its antiquated natory unquestionably against inter- evidence, rules of Mississippi recognized est,” tending even while exculpate against pecuniary interest, statements but Chambers, 300-01, Chambers. U.S. interest, not penal statements as 93 S.Ct. Wang’s all statements were an exception hearsay to the rule. Id. at made to during post-arrest in- 299, 93 Observing S.Ct. 1038. that Cham- terrogation, response to specif- bers’ defense “far persuasive” less ic questions about the robbery and mur- than it might have been had been al- he DEA agents. ders of the Chia did not testimony lowed to admit from other corroborating have support evidence to confessions, sources about McDonald’s Wang’s Finally, statements. Mc- while that, Court noted because Mc- Donald’s statements tended to both excul- Donald spontaneously confessed to friends pate Chambers, and exonerate himself shortly after the crime and his statements Wang’s inculpatory statements do also were corroborated through other evidence exculpate Therefore, Chia. the state court (e.g., confession; McDonald’s sworn did not contrary reach decision to Cham- testimony eyewitness of an shooting; bers. testimony that McDonald was seen immediately Next, with a gun shooting; after may habeas corpus writ and proof of prior ownership granted McDonald’s “if the state court identifies Wang’s bodyguard, ... but to act as as well legal principle governing

correct principle plan for to hide somewhere near unreasonably applies Andrade, Tiny Naylor’s to look out for it. restaurant facts” of the case before majority Wang give 1166. The and come to aid should arm out of signal sticking state court made his has held objectively application of the car. unreasonable case, because Chambers rule to Chia’s Finally, portions while state- reliable and statements were both undoubtedly were self-inculpatory, ments However, Wang’s to his defense. material exculpatory to Chia were those sections reliability to lacked sufficient interest and therefore against Wang’s hearsay exception of Cham- be within the inculpatory were not as reliable as the bers. Stewart, F.3d parts. LaGrand (9th Cir.1998), we held that the state outcome in

Critical to the Chambers trial court’s exclusion of despite determination that the Court’s rules, evidentiary falling of a co-defendant as outside Mississippi’s state the ments in- origi- against penal of Arizona’s “statement hearsay statements involved “were rule, is identical to Federal nally subsequently made and offered at terest” which 804(b)(3), that Rule of Evidence did not violate provided trial under circumstances reliability.” process rights. assurance of their the defendant’s due considerable added). (emphasis at defendant Karl twice confessed Id. 93 S.Ct. 1038 LaGrand victim, police all made to to the that he stabbed the Wang’s four statements were interrogation, but stated that his co-defendant police during post-arrest the Walter only specific questions present. in was not Id. at 1259. response and LaGrand precedent, and Based on Court regarding the black Mitsubishi Chia’s we involvement, reliability declarant in determined that that at- “[t]he whereas inculpatory part tends the of ... de- independent [the made three state- Chambers any confession does not afford clarant’s] ments to three different friends. As the noted, reliability quite part trial court to that of the statement state act, merely exculpates it that literally caught [the and is defendant].” Wang’s explained for situa- Id. 1268. We further that uncommon someone protect tion to make statements to an ar- against penal the “statements [b]ecause confederate, guably culpable especially less exception hearsay interest” to the rule is good friend. when confederate is premised upon reliability inherent Thus, Wang’s statements lack the element that tend incriminate the reliability sponta- found in McDonald’s declarant, federal courts have concluded neous confessions in Chambers. that a statement that includes both in- criminating corollary declarations and Furthermore, Chambers, unlike there that, alone, declarations taken are not Wang’s nois evidence to corroborate declarant, inculpatory of the must be regarding purported ments Chia’s lack of separated only portion that is involvement, im- nor could actually incriminating declarant peached about since he these statements exception. admitted under In- rights. invoked his Fifth Amendment deed, although corroborating (citing v. evidence is Id. 1267-68 Williamson Unit States, 594, 599-600, lacking, the record does reveal Chia’s own ed 512 (1994) (noting where- 476 police admissible statements to the L.Ed.2d acknowledges agreement- judges separate he with in federal courts must incriminatory portions of statements from that planned he and Kow had the transac f other for o portions purposes Rule tion to rob the .dealers” from “drug 804(b)(3) person fact that a because”[t]he very beginning. It is both simple and making broadly self-inculpatory is con necessary identify and separate reli not make fession does more credible the inculpatory portions able of the statement non-selfinculpatory parts”); confession’s merely those that exonerate Chia and Peters, (7th v. Carson F.3d do not the same reliability. have indicia of Cir.1994) (“Portions inculpatory state Furthermore, even if sought Chia also pose ments that no risk to the declarants admit the self-inculpatory portions, those reliable; particularly they just are not are parts would have questionable been of ben garden variety hearsay.”); United States Chambers, efit to Chia. Unlike where Porter, (10th 881 F.2d 882-883 Cir. one person could have shot the offi 1989) (if a exculpatory statement cer, our case accomplice deals with accused severable from the statement conspiracy behavior. confession declarant, inculpatory to the each state way no anyone exonerates else. separately analyzed ment must be under The factors set forth in v. Stag Miller 804(b)(3)); Rule Lilley, United States v. ner, (9th Cir.1985), 757 F.2d upon (8th (“To Cir.1978) 581 F.2d relies, which the majority do support extent that a statement is not process claim. state interest, declarant’s guaranty of trust are, best, reliable, ments minimally worthiness does not exist portion and that hence their exclusion did not render the excluded.”)). of the statement should be trial fundamentally unfair. Because the deciding Since we are whether the exclu reliable, statements are not sufficiently sion of statements violated Chia’s and do not fall within excep process due rights, our decision federal tion, probative the are not to Chia’s case. Stewart, LaGrand v. and the cases to pointed nothing has in the record cites, which it particularly are helpful on that requires this court disregard question reliability. They imply findings, state court’s nor has he demon that excluding exculpatory portions strated that statements were oth a confession do not process raise due con erwise reliable. Because state cerns portions because those are inherent ments demonstrate that Chia knew of the ly unreliable. Both the state trial court plan beforehand, to rob murder and and California Appeal Court of recognized slight value of Wang’s testimony to Chia’s much, noting that Chia was inter outweigh defense did not the state’s inter ested in introducing exculpatory por est in excluding the evidence. Chia’s due Indeed, tions Wang’s statements. process rights were not violated is not a case exculpatory where the exclusion Wang’s, hearsay statements. inculpatory portions are intertwined in a Ylst, See Galindo v. 971 F.2d seamless and unseverable A confession. (9th Cir.1992). review of the statements reveals that each Again, was made in the this court’s role is to question:and- course of decide style police answer whether the state trial interrogation where court’s exclusion of questions Wang’s hearsay the direction of continually objec statements anwas abruptly topic tively shifted from one application clearly unreasonable example, next. For in Wang’s third state established federal interpreted by law as ment, name, mentioning before Chia’s he the United States Court. An drade, admitted that agent he shot a DEA 123 S.Ct. 1166. objectively that an makes clear Andrade of federal law is

unreasonable an incorrect or erroneous

different from (internal law. Id.

application of federal omitted). trial court held

citations arguments heard

evidentiary hearing and admissibility

on the

ments, it determined that which § fell outside of 1230 of the Code for the same

California Evidence of the statements do

reason that exclusion process concerns under implicate exculpatory statements

Chambers —the reliability. I any

lacked indicia of am not trial

left with a firm conviction that objectively unrea-

court’s decision was

sonable.

I would affirm the district court’s deci- petition for habeas dismissing

sion

corpus. LEEVER, Plaintiff-Appellant,

Paula of;

CARSON, CITY Consolidated City,

Municipality of Carson

Defendants-Appellees.

No. 02-16525. Appeals,

United States Court Circuit.

Ninth

Argued and Oct. 2003. Submitted

Filed March

Case Details

Case Name: Michael Su Chia v. Steven Cambra, Jr., Warden Attorney General of the State of California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 4, 2004

Citation: 360 F.3d 997

Docket Number: 99-56361

Court Abbreviation: 9th Cir.