Moses v. Payne

Neither of these conditions is met here. exculpatory of an

The value item evi- “apparent” dence is not when the evidence ”

merely exculpated “could defen-

dant. Arizona v. Youngblood, 488 L.Ed.2d 281 n*

(1988). digital recording of rob-

bery clearly exculpato- here far indeed,

ry; possible it is that it would have Moreover,

further incriminated Drake.

comparable plainly evidence was available: robbery

fourteen images still were

preserved and the officers were available testify to the contents of the recording.

VI reasons, foregoing

For the Drake’s con-

viction is AFFIRMED.

Jeffrey MOSES, Duane Petitioner-

Appellant, PAYNE,

Alice Respondent-Appellee.

No. 07-35468.

United States of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 2008. Sept.

Filed Browne, Seattle, WA, Henry

John for petitioner-appellant. Kostin, Alex A. Attorney Assistant Gen- eral, WA, Olympia, the respondent- for appellee. fornia, FISHER, police report called the RAYMOND C.

Before: GOULD, daughter-in-law, SANDRA S. her Jennifer Moses was M. RONALD IKUTA, police Judges. dead. The found Moses on the Circuit house, beer, drinking street outside IKUTA; by Judge Dissent Opinion carrying his younger son on his GOULD. Judge asleep son back. Moses’ other Moses, According house. Jenni- IKUTA, Judge: Circuit fer shot herself and committed suicide. convicted Jef- A attempted When the officers to enter degree murder frey Moses of second house, he told them it was unneces- wife, shooting of his Jennifer death sary he everything because had cleaned appeal, In we consider wheth- Moses. this found in up. wrapped Police Jennifer a in denying er district court erred Jef- in rug garage, along pile with a of habeas for a writ frey petition bloody sponges. towels and Jennifer contends that his federal corpus. Moses head, a gunshot had wound to her blunt by sev- rights were violated constitutional lips force trauma to a her and cracked by made the tri- evidentiary eral decisions tooth. .410 gauge derringer The used court, to including preclude al the decision Jennifer’s death was found in the master testifying. experts from one of Moses’s derringer The bedroom. had been re- that to ha- maintains he is entitled Moses cently cleaned was loaded with and two Washington appel- beas relief because unspent questioned, shells. When Mo- to his conviction court’s decision affirm late police ses told Jennifer had been de- to, an unreason- “contrary of involved was pressed and that she came downstairs of, clearly established able evening derringer, that with the knelt law, as determined the Su- Federal down shot head while and herself preme Court of the United States.” get gun away Moses to from tried 2254(d)(1). disagree. § We U.S.C. her. he Moses said moved Jennifer’s appellate court’s decision body garage prevent their sons “highly passes muster under the deferen- seeing her. He then backed his rul- evaluating state-court tial standard for garage body truck her up to load v. in the habeas context. ings” Woodford bury woods, into it in the as she and her 19, 357, 24, 123 Visciotti hit the truck a requested. When (2002) curiam) (inter- (per 154 L.Ed.2d 279 post, Moses said he abandoned at- omitted). marks have quotation nal We tempt body. move Jennifer’s §§ jurisdiction under 28 U.S.C. we affirm. incident, charged the state Following this and un- degree Moses with first murder I possession of a firearm. The state’s lawful facts, summary preliminary a theory charge For that Mo- of the murder was rely appellate on the state court’s deci- intentionally we dur- shot Jennifer Moses ses dispute. sion: ing support domestic theory, prosecution introduced testi- early September

In the morning mother, mony from several who lived Cali- witnesses. Moses’ Small, 2254(e)(1); § 282 F.3d facts is Because this initial statement of Hernandez Cir.2002). (9th deci- from the state court’s drawn n. 1 does sion, presumption it correct- is afforded preliminary allege that facts are these only may be rebutted clear ness erroneous. convincing U.S.C. evidence. See 28 Among these witnesses was Dr. Richard Dr. Harruff testified he tried to Harruff, examiner, only “objective” limit “un- who himself medical testified ambiguous” factors in his eause-of-death gun- had died from a that Jennifer Moses analysis, as the such nature and location wound inflicted to the side of shot However, Dr. ac- wound. Harruff neck, upper her behind the ear. Har- knowledged he also considered state- explained ruff Jennifer Moses’s diary. ments in Jennifer Moses’s is, wound, that was a contact wound indicating gun that the had been in wound cross-examination, During the defense contact with Moses’s skin when it Jennifer elicited from Dr. Harruff that fired. Dr. Harruff further testified was difficulty who drugs “individuals pointed the gun upwards, “at probably and alcohol are at a higher risk position,” an 11 about o’clock when was of suicide than those are not.” Addi- who fired in the base of Jennifer Moses’s head. tionally, Dr. Harruff testified that intoxi- toxicology Dr. Harruff stated that a also cation access to firearms are both risk performed during screen Jennifer Moses’s factors for suicide. a

autopsy revealed blood alcohol level of government The Evan also called 0.15. a Thompson, ballistics examiner for the objections, Over defense the court also Washington State Patrol Crime Laborato- permitted Dr. that in testify ry. Harruff his Harruff, Dr. Thompson Like testified opinion Jennifer Moses’s death was a about the implications ballistics of Jennifer prompted, “homicide.” Dr. Basing When Harruff analysis Moses’s wound. on use explained objective that his “homi- word same factors considered Harruff, “medical/legal” was a Dr. Thompson cide” mixed stan- concluded that dard, signifying the Jennifer likely “likelihood another Moses’s death was a more person’s responsibility leading to homicide than either a suicide or an acci- [the] Harruff, shooting dental According during struggle death.” to Dr. a over gun reason a medical between Moses and Jennifer Moses. principal examiner would Harruff, Thompson a Like Dr. certify death a concluded as homicide would be for likely that Jennifer Moses’s death was purposes of the death certificate. Dr. result of homicide. Harruff testified: example, classify something For I would The trial court also allowed see, if the [as] homicide I prior a concerning incident of domestic my my based on experience profes- and violence between Moses and Jennifer Mo- responsibility, sional indicates this ses that occurred on November a death is a that needs to be looked at little over ten months Mo- before Jennifer potential of activity. for[the] criminal ses died. This incident resulted in Jenni- my That’s I responsibility, certify and fer going hospital to the along children, death based on that. I’m of course not her and several witnesses affiliat- position, is, in a as the to render ed hospital a with the testified to the events final repre- conclusion as whether this that followed.

sents murder or not. Dr. Appleton, Warren the emergency Dr. Harruff further clarified that his opin- room physician, inter- testified he ion on legal did bear issue viewed and examined Jennifer Moses intent, and that his conclusion under the shortly medical room exam after the No- “likelihood” standard was not a determina- vember 2001 incident in order to provide beyond tion treatment, reasonable doubt. Mo- observed Jennifer indicating eral of fear and statements Jennifer physical signs displayed ses suffering depression examination. order from anxiety during the Moses was fear, understand her level thoughts had of suicide. to assess Moses what asked Jennifer Appleton Dr. The trial court decided include entries According Apple- happened. journals for the four months both Moses stated testimony, Jennifer ton’s However, prior to death. Jennifer Moses’s her and broke her that Moses assaulted all of journal did not admit court jaw. during pe- entries written this four-month worker, Tamara Mul- hospital The social Concluding riod. that there was an “over- Jennifer ler, testified that she interviewed journals, trial lap” two between Moses was while Jennifer Moses’s children court decided exclude some handwritten sedation, then interviewed Jen- under journal days entries which Jennifer said that Moses. children nifer One posted journal also Moses had online As a kick Jennifer Moses. he saw Moses entry. explained its deci- statement, contacted Muller result sion as follows: (CPS). Muller Protective Services Child journal, which covers The electronic Moses, subsequently interviewed Jennifer time, writ- although overlaps with the as the assailant who identified Moses who journal, ten of her closer time jaw. point during At her some broke death, at the has a section beginning interview, told Jennifer Moses that Muller entry each which describes her state contacted CPS. she had day mood de- mind that and some general more gave Muller also I did feeling. of how she was scription experiences as domestic based on her it was her regarding find that relevant Specifically, she testi- violence counselor. journal mind. state of The written “very seldom” tells victims of fied that she have such necessarily didn’t statements to their abusive violence leave domestic as mind. I believe to her state of And reason, immediately. The ac- situation journal is cumbersome the entire Muller, to was that “a victim is cording' journal the do need entire that we they likely ... when most to be killed into admitted evidence. testimony pertained to the leave.” This decision, arguing objected to Moses theory that Jennifer Moses prosecution’s excluding important that the was Moses on or attempting was to leave Moses’s state regarding Jennifer the she night around died. relationship his the nature of of mind and govern- the Finally, the court allowed with his wife. evidence drawn from ment to introduce rested, the de- prosecution the After journals. Jennifer Mo- Jennifer Moses’s theo- on its The defense’s put fense case. journals, one that was ses used two had ry of was Jennifer Moses the case posted on- and one that was handwritten support this the- suicide. In of committed relied government principally line. The from ory, the defense introduced evidence (rather than the journal the online on to show that Jennifer several witnesses the journal) to abu- handwritten establish had depression and from Moses suffered relationship between Jennifer Moses sive leading in the months thoughts of suicide government the and Moses. When up to 2002. September from on- sought to introduce evidence of four heard from jury journal, countered that line defense providers on Moses’s medical Jennifer admit the trial court should also First, health. her mental which included sev- issue of journal, handwritten Dickinson, a depression called Dr. ses’s would have resolved itself defense William General Valley died, associated with doctor before the date Moses Jennifer Hospital where Jennifer Moses been ability severely of a person who was depres- treated for substance abuse and depressed to appear normal to friends and sion. Dr. Dickinson testified Jennifer (This latter opinion co-workers. was rele- major depression, Moses al- suffered govern- vant insofar as rebutted thoughts, of beit without suicidal as March lay testimony ment’s that Jennifer Moses Second, Doug- heard from visibly depressed was not final Perry, chemical-dependency pro- las S. life.) months her Dr. also Wilson was Valley also fessional who worked Gen- prepared testify to fac- several risk Hospital. Perry eral testified to Jennifer tors, abuse, depression, such as substance cocaine depression, and alcohol firearms, heighten access the risk of abuse, Third, thoughts. suicidal Additionally, Dr. suicide. Wilson was pre- Alexander, defense called Barbara a men- pared testify lay persons do not health tal counselor who treated Jennifer fully major implications understand the January 2002 through Moses from March depression and the connection between Hall 2002 at the Health Center these various risk factors and suicide. Dr. University Washington. Alexander tes- explained to Wilson the court that he diagnosed tified that she Jennifer Moses opinions based Jennifer Moses’s major depression. with Alexander also records, mental diary, autopsy health re- major can depression testified that be a port, and interviews Moses and one of life-threatening people illness and that who Although Jennifer Moses’s friends. major suffer from depression tend not to willing opine Wilson was not that Jenni- improve they if drugs continue to abuse suicide, fer Moses committed he pre- Finally, and alcohol. the defense called pared testify fell Jennifer Moses Griffin, Jacquie a record custodian for the group “into a with an people extreme Virginia Mason Medical Center. Jennifer significant number severe and risk fac- Virginia received treatment at the tors for suicide” and that “she continued Mason from April August center 2002 to major depression suffer ... [from] that 2002. Because Jennifer Moses’s treatment continued to the time of her death.” provider Virginia by Mason died sides, hearing After trial, argument from both the time of Griffin was called to the trial court to exclude testify decided Dr. Wil- about the treatment provider’s testimony. gave testimony son’s The court notes. Griffin’s indicated that several First, for Jennifer Moses continued to from reasons its conclusion. it suffer stated depression and abuse alcohol opinion persons and cocaine Dr. Wilson’s who during spring the and summer of 2002. depression, suffer from drugs abuse and provider’s The treatment alcohol, notes also indi- and expe- have access to firearms cated that Jennifer had experienced Moses higher rience a relatively risk of suicide suicidal thoughts. already was within knowledge common of Second, jury. the that Dr. concluded sought

The defense then to introduce testimony light Wilson’s was cumulative in Wilson, from Dr. Lawrence of the other evidence by introduced the depression. In a preliminary establishing defense that Jennifer Moses evidentiary hearing jury’s outside the undergoing treatment for substance presence, explained Dr. Wilson he that was abuse, prepared testify depression, experi- suffered from regarding to nature the of depression thoughts, gun Jennifer Moses’s enced suicidal and had a and substance abuse, Third, unlikelihood Jennifer Mo- the house. the court concluded that granted the district court Moses remaining Dr. Wilson’s —name- diagnosed appealability of on all those certificate issues. percent “that of ly, take their own major will depression Moses appeal, On contends the dis- in their life”-—was not point at some life denying trict court erred in his habeas outweigh its preju- sufficiently probative Moses that the state petition. maintains potential to confuse the and dicial effects evidentiary deprived him court’s decisions jury. Constitution, rights of and secured to introduce Finally, sought adjudica- the defense the state court’s un- to, of Jennifer Moses’s photograph contrary or appeal tion of his “was prior to body of, taken clothed and emaciated involved an unreasonable that Jennifer law, her in order show autopsy Federal as deter- clearly established a as result weight loss experienced Moses of mined the United 2254(d)(1). The court ruled eating of an disorder. Specifi- § States.” 28 U.S.C. inadmissible, concluding that (1) photo cally, claims that: the admission Moses was out- photograph probative value Ap- made to Dr. out-of-court'statements on the prejudicial effect weighed by Tamara violated pleton and Muller Moreover, other evidence Jenni- jury. confrontation; Sixth Amendment loss, including testimo- weight fer Moses’s (2) testimony, of Dr. Wilson’s the exclusion to the ny provided had been photos, Mo- autopsy photograph of Jennifer jury. body, por- and the select ses’s unclothed jour- tions Moses’s handwritten of Jennifer of second-

The convicted Moses Moses nal denied his constitutional then trial court sen- degree murder.2 (3) defense; and present his admission of incarcera- Moses to months tenced Harruff, from Dr. opinion testimony his conviction appealed tion. Moses Tamara Muller im- Thompson, Evan Ap- Court of Washington sentence jury’s intruded constitu- properly upon September appel- peals. On role, thereby depriving tionally mandated in a conviction late court affirmed Moses’s a fair trial. Moses of but his sentence opinion, reasoned vacated resentencing. for remanded II to the Su- appealed then conviction May On preme Washington. novo district review de “[W]e Supreme Court deny petition grant decision court’s re- summarily petition denied Moses’s corpus.” Lambert v. for a of habeas writ (9th Cir.2004). view. 943, Blodgett, 393 F.3d 964 petition his habeas Because filed a petition his for writ of Moses filed 24, 1996, petition gov his April after August on corpus habeas federal court and Effective the Antiterrorism erned 9, 2007, 11, January magis- 2006. On (“AEDPA”). Penalty 1996 Death Act of denying Moses’s judge trate recommended a establishes at 965. AEDPA See id. 10, 2007, the April district petition, and on evaluating for “highly deferential standard judge’s rec- adopted magistrate court Visciotti, at rulings.” 537 U.S. state-court Moses’s habeas ommendation and denied (internal 24, quotation marks 357 123 S.Ct. timely filed notice petition. Moses omitted). deny habeas relief 10, 8, must 2007, on June We May appeal on bench trial. convicted on unlawful 2. Moses was also charge following a possession a firearm 1098 (internal 71-72, claim at respect any adjudicated 123 quotation S.Ct. 1166 omitted). court un- proceeding

the merits a state marks no Where decision of the in a proceeding less the “resulted decision “squarely Court an addresses” — to, contrary issue, Patten, that was or involved unrea- Wright v. Van of, application clearly -, 746, sonable established 743, S.Ct. 169 L.Ed.2d 128 583 law, Federal as determined (2008), Su- adjudication a state court’s of that preme Court of the United States” “re- issue contrary cannot result in decision in a sulted decision was based on an to, of, application or an unreasonable Su unreasonable of the facts in determination preme precedent, see v. Court Crater Ga light presented of the in the State tazo, (9th 1123, 1119, F.3d 1126 Cir. 2254(d)(1), § proceeding.” court 28 U.S.C. 2007) Musladin, (citing Carey v. 549 U.S. (2). 70, 649, 654, 127 S.Ct. 166 L.Ed.2d 482 (2006)),and therefore cannot be a basis for “contrary The to” and “unreason otherwise, habeas relief. Said a state 2254(d)(1) § application able of’ clauses in contrary court’s decision be cannot to a separate are distinct and meanings. Supreme Court that provides decision “no Andrade, Lockyer See v. 538 U.S. 73- categorical question answer” to the before (2003). 155 L.Ed.2d Patten, the state court. Van 128 S.Ct. at ‘contrary “A court state decision is to’ 746; Musladin, accord at clearly established prece (holding state court’s decision if the applies dent state court a rule that defendant was not prejudiced by specta- the governing contradicts law set forth in tors’ at contrary conduct was not Supreme Court cases or if the state court to, of, application or an unreasonable materially a set confronts of facts indistin Supreme Court’s for determining test guishable from at those issue ain decision may when a defendant be prejudiced by and, nevertheless, state at conduct trial because the Court at a result prece arrives different from its applied had “never that test to spectators’ Lambert, dent.” 393 F.3d at 974. On the conduct”). hand, other “under the ap ‘unreasonable clause, plication’ a federal habeas court “The relevant state determi may if grant the writ the state court iden nation purposes of AEDPA review is governing tifies correct legal principle the last reasoned state court decision.” Supreme] from [the Court’s decisions but Delgadillo Woodford, 527 F.3d unreasonably applies principle (9th Cir.2008). Here, September 19, prisoner’s Andrade, facts of the case.” decision of the Court of (internal 123 S.Ct. 1166 Appeals is the last reasoned state court omitted). quotation marks and alterations decision to address the merits of Moses’s application’ “The ‘unreasonable clause re Therefore, constitutional claims. ap quires the state court decision to be more peal requires us to evaluate whether the than incorrect or erroneous. state disposition court’s of Mo court’s of clearly established ses’s contrary constitutional claims was objectively law must be unreasonable.” or an application Supreme unreasonable of (citations omitted). Id. Court precedent. We address Moses’s claims turn. “[C]learly established Federal law 2254(d)(1) § under is the governing legal Ill principle or principles by set forth the Supreme Court at the time the state court Moses first that contends the admission Andrade, renders decision.” 538 U.S. of out-of-court statements made Jenni-

1099 “clearly No- regarding and her son the established Federal law” 28 fer Moses under 2254(d)(1) § for purposes violence U.S.C. of vember 2001 incident of domestic our con- AEDPA right appellate Amendment review of the state violated his Sixth Andrade, introduced court’s government frontation. decision. See 538 U.S. at 71-72, 123 through 1166. these out-of-court statements S.Ct. Appleton of and Ta- analyzed appellate The state court Mo-

mara Muller. ses’s Confrontation Clause claim under the framework. In considering Dr.

The Sixth Amendment’s Confronta Crawford Appleton’s testimony regarding Jennifer that, provides tion all criminal “[i]n Clause statements, Moses’s out-of-court the state prosecutions, enjoy the accused shall appellate correctly that noted Craw- wit ... to be confronted with the comprehensive did not articulate a In against nesses him.” ford Crawford definition testimonial of statements and Washington, Supreme Court held question thus did not address the whether gives criminal the Confrontation Clause statements made to doctors and social confront defendants witnesses purposes workers for of medical diagnosis trial, who testimonial statements at make and treatment are testimonial under unless witness to testi was unavailable Applying Confrontation Clause. state-law fy prior opportu had a and the defendant precedents Crawford, interpreting 36, nity cross examination. 541 U.S. appellate state court concluded Jenni- 53-54, 1354, 158 L.Ed.2d 177 S.Ct. Dr. Appleton fer Moses’s statements to (2004). contrast, non-testimonial state they were non-testimonial because were implicate ments do not the Confrontation purposes diagnosis made for and treat- Bockting, Clause. See Whorton v. 549 U.S. ment, to inculpate rather than Moses. 167 L.Ed.2d 127 S.Ct. (2007) Crawford). (explaining court identified Because rule, pre- applied legal did not offer a the correct

Although Crawford evidence, the did at a cise because the court not arrive result definition testimonial the result reached by Court offered various formulations of different from statements, indistinguishable in an core class testimonial Court “[wjhatever case, we appellate noted that else the term cov- conclude the state ers, minimum “contrary at a testi- court’s was not to” applies prior decision mony preliminary hearing, clearly prece at a before established 2254(d)(1). trial; § grand jury, police former and to dent under 28 U.S.C. See Andrade, 51-52, 68, at interrogations.” 538 U.S. S.Ct. 1354; Washington, adjudi see also Davis v. Nor did the state court’s 813, 822, 165 cation Moses’s Confrontation Clause (2006) (refining L.Ed.2d 224 claim involve an “unreasonable Crawford’s 2254(d)(1). § analysis during of when statements made of’ U.S.C. Crawford.3 police interrogation are testimonial for Because no decision Amendment). issue, this the state purposes “squarely the Sixth addresses” unreasonably apply Supreme the differ- court did not holding regarding Crawford’s precedent concluding Jenni ence between testimonial non-testimo- Court Dr. Appleton nial constitutes fer statements to out-of-court statements testify government We need not 3. The maintains that we should unavailable to at trial. question by holding decide this argument, deny petition as we reach rights forfeited his Confrontation Clause grounds. on other killing making thus her Jennifer Moses and 1100 Patten, Van 128 admitting

were nontestimonial. See written Moses to the assault. Musladin, 746-47; Therefore, any 127 S.Ct. at see also because constitutional er- involved in admitting S.Ct. at 653-54. ror Muller’s testimo- requisite ny “prejudicial lacked the im- appellate court next deter- state pact,” habeas relief unavailable Moses mined that Jennifer Moses’s statements to Fry, for this claim. at 2327. S.Ct. Tamara purposes Muller treatment testimonial under until were not Finally, Crawford appellate the state informed Jennifer Moses that she Muller Mo considered admission Jennifer had The court contacted CPS. conclud- son’s ses’s out-of-court statements to Mul ed that because Muller’s statement noti- These ler. statements were introduced at possible legal fied Jennifer Moses of conse- when prosecutor trial asked Muller quences her discussion domestic she why had contacted Muller ex CPS. incident, violence Jennifer Moses’s subse- plained because Jennifer Moses’s son quent remarks were testimonial and the had told her that his father kicked had court erred in them. admitting mother, mandatory duty Muller had a un Nonetheless, appellate the state court con- notify der state law to CPS. The state cluded that this error was be- harmless appellate govern court concluded that the yond a reasonable under Chapman doubt ment did not introduce this 18, 824, California, v. U.S. S.Ct. 17 prove the truth of the matter asserted (1967), other, L.Ed.2d 705 because of un- (whether Moses), Moses kicked Jennifer identifying tainted evidence Moses as separate but rather to explain relevant assailant in the November 2001 assault. why issue: Muller contacted the CPS. In Crawford, the Court noted that the Con (without Assuming deciding) that frontation Clause “does not bar use of appellate court was correct purposes testimonial statements for other concluding the trial court committed establishing than the truth of the matter admitting constitutional error in Jennifer 9, asserted.” 541 59 n. S.Ct. Moses’s statements after Muller informed Street, (citing Tennessee v. 471 U.S. contacted, her that had CPS been we must 85 L.Ed.2d 425 consider whether such constitutional error (1985)). Therefore, the state injurious “substantial and effect or analysis court’s is consistent with Craw determining jury’s influence ver and does meet the criteria for Abrahamson, dict.” Brecht v. ford 2254(d)(1). § habeas relief under 28 U.S.C. 637, 113 S.Ct. 123 L.Ed.2d 353 (1993) (internal quotation omitted); marks IV — Pliler, U.S.-, Fry see also 2321, 2328, (2007). Moses next maintains that ishe entitled 168 L.Ed.2d 16 to habeas We relief because the trial court conclude there was sub- no such injurious denied him the opportunity stantial and effect. evi- There was overwhelming dence his own behalf. In particular, evidence Moses caused injuries points Jennifer Moses’s to the trial during No- court’s decisions (1) (2) incident, vember 2001 to exclude: including testimony; the testi- Dr. Wilson’s mony Appleton portions of Dr. and the Jennifer Moses’s handwritten Green, (3) Brian journal; Jennifer stepfather, Moses’s Jennifer autopsy who into read statement hand- photograph.4 4. Moses also prose- contends that trial court’s excluded more defense evidence than rulings, evidentiary analyzed when cumula- argues rulings evidence. cution He these de- tively, government they favored the because

1101 Kentucky, 683, 690, A Crane v. 476 U.S. 106 (1986) (“[T]he 2142, S.Ct. 90 L.Ed.2d 636 upheld the tri- appellate The state guarantees Constitution criminal defen decision to exclude Wilson’s al court’s meaningful dants opportunity present to testimony it was cumulative and because (internal a complete defense.” quotation portion of his the non-cumulative because omitted)). marks The has testimony sufficiently was not proposed right pres indicated that a defendant’s to prejudicial outweigh likely probative to ent both from to right defense stems the jury. effects on the This confusing and process provided by due the Fourteenth govern- analysis was undertaken under Amendment, v. Mississippi see Chambers rule, 702, Rule evidentiary ing Washington 284, 1038, 294, 410 U.S. 93 S.Ct. 35 “if expert testimony it will which admits (1973), right L.Ed.2d 297 and from the “to fact assist trier of to understand compulsory process obtaining wit v. or a fact issue.” State Farr evidence Lenzini, 313, by in his favor” 453, provided nesses the Sixth Wash.App. 970 P.2d 93 (1999) (internal Amendment, Texas, v. quotation Washington marks see 388 omit- 318 ted) 23, 1920, 14, 702 U.S. 87 S.Ct. 18 L.Ed.2d 1019 (explaining requires Rule (1967) (1) qualified (explaining right compul an that the to the witness be as (2) helpful sory process meaningless be to would be if the expert fact).5 right the trier of lacked to wit defendant use the presence compelled). nesses whose he 702, Under Rule jury if it matters helpful is to the concerns However, “[a] defendant’s beyond knowledge common the av right present relevant evidence is misleading. erage layperson is not unlimited, subject but reason rather is id. at 319. See restrictions,” evidentiary able as such procedural rules. appellate United States Moses the state asserts Schef 303, 308, 1261, fer, S.Ct. 140 523 U.S. 118 contrary court’s decision is (1998). fact, L.Ed.2d 413 “state and precedents holding that defendants Court’s rulemakers un have a rele- federal have broad latitude constitutional vant in their defense. der the Constitution to establish rules ex- own See 1087, homa, 68, process right prived due 105 S.Ct. 84 him of his rebut arguments presented (1985), the state applicable there- 53 is not because L.Ed.2d deprived him of to a case, fore his fair trial. question concerns a not raised in this issue, Even if he exhausted requires that an "whether Constitution explained has not how the state indigent psychi- access to defendant have rejection these court's constitutional claims necessary to atric examination and assistance to, "contrary an would be or involved unrea- prepare an effective defense based on of, clearly sonable established condition, sanity time mental when his at the law, Federal as determined seriously question.” Id. the offense Court of the United States.” U.S.C. 70, 105 S.Ct. 2254(d)(1). § Most of the cases Moses cites argument support inapposite of his Evi- 5. Rule 702 of Rules of they pertain unique because context of scientific, technical, "If or other dence states: capital sentencing proceedings. See Simmons specialized knowledge will assist the trier 154, Carolina, 512

v. South U.S. S.Ct. to deter- fact to understand the evidence or (1994); Skipper v. 129 L.Ed.2d 133 issue, qualified a witness as mine a fact in Carolina, South U.S. skill, experience, expert by knowledge, train- Florida, (1986); Gardner v. 90 L.Ed.2d education, ing, may testify thereto in or 51 L.Ed.2d 393 case, (1977). remaining opinion otherwise.” Ake v. form of an Okla- 1102 trials,” id., from criminal the Court reached the

eluding evidence same conclusion Supreme evidentiary Court has indicated its an about rule that limited the evi- approval of “well-established rules of testimony to defendant’s matters she re- judges permit dence trial to exclude [that] her memory membered before had been if out- probative value is evidence hypnotically it refreshed because was “an by factors as weighed certain other such arbitrary testify restriction on the to issues, unfair of the or prejudice, confusion by in the absence clear evidence jury,” potential mislead the v. to Holmes State of all repudiating validity pos- Carolina, 326, 319, South 547 U.S. 126 Finally, thypnosis recollections.” in (2006). 1727, Evi- S.Ct. 164 L.Ed.2d 503 Texas, rejected the Court a dentiary rules do not violate defendant’s evidentiary an that precluded rule an al- rights they “infring[e] constitutional unless leged accomplice of the defendant from upon weighty a interest accused testifying on the defendant’s behalf arbitrary are disproportionate (though testify govern- he could for the they purposes designed to serve.” Id. ment) because it could not “even be de- (alteration 324, origi- at 126 in S.Ct. 1727 ground rationally fended it nal) (internal omitted); quotation marks apart a group persons sets who are 315, Scheffer, see at also 523 U.S. 118 S.Ct. particularly likely perjury.” commit 1261 that the evi- (explaining exclusion of 1920; 22, at 388 U.S. 87 S.Ct. see also dence to a pursuant evidentiary state rule Crane, 690-92, 476 U.S. at 2142 106 S.Ct. “signifi- where it only unconstitutional (identifying constitutional violation cantly fundamental undermined elements evidentiary where a state rule precluded defense”). general, of the accused’s it any defendant from introducing evidence “unusually has compelling taken circum- relating to unreliability of his own ... outweigh strong stances state confession); Chambers, 302, 410 U.S. interest in administration its trials.” (concluding 93 S.Ct. 1038 that a defen- (9th Rushen, 1447, Perry v. F.2d dant’s fair rights were violated when Cir.1983). the combined of two effect state rules of explained The Court has these precluded him effectively evidence principles in cases where defendants have impeaching a alleged witness who he rules, argued that evidentiary by state hand, the actual culprit). On the other terms, their own con- impinge upon their upheld has an Court eviden- stitutional de- complete tiary rule polygraph that excluded evi Thus, Holmes, fense. con- the Court dence in military trials because did not cluded that a defendant’s constitutional “implicate any significant interest of the rights evidentiary were violated accused” and it “servefd] because several rule that prevented the defendant from legitimate interests the criminal trial presenting party evidence that third process.” 309, Scheffer, 523 U.S. at 316- judge committed the crime if the deter- 17, 118 S.Ct. 1261. mined the prosecutor’s case was The squarely Court has not 328-31, strong. 547 U.S. at question 702, addressed the whether Rule determined that this ev- the rule of evidence relied upon identiary rule “rationally did not serve” case, or an goal “excluding has rule, analogous “infring[es] upon a only weighty a very logical weak connection to the interest of “arbitrary central the accused” and is issues.” Id. at 126 S.Ct. Arkansas, 1727. In or disproportionate Rock v. to the purposes[it is] (1987), 97 L.Ed.2d 37 designed Scheffer, serve.” U.S. at (internal preme holding case that such an quotation S.Ct. 1261 omitted). Rather, a “well-estab exercise of discretion exclude as marks a defendant’s permits a violated criminal of evidence” rule[] lished right present in to evi- admitting constitutional relevant exercise its discretion court to relevant, above, Supreme Rule 702 dence. As noted the when expert evidentiary only those have focused on wheth- analogous to Court’s cases is more rule, terms, in by Holmes. an approval evidentiary described with er its own rules (“While 326, 126 at 1727 present S.Ct. violated a defendant’s to evi- See 547 ... the exclu prohibits Supreme has the Constitution dence. Because Court under rules that issue, of defense evidence the state directly sion not considered or legitimate purpose that are no serve court’s determination that that they the ends disproportionate to trial exercise of discretion to ex- court’s rules promote, to well-established asserted expert testimony clude under Rule 702 did judges to permit trial exclude of evidence rights not violate Moses’s constitutional if its value is out probative evidence contrary or cannot be an unreasonable by other factors such as weighed certain clearly application of established issues, or of prejudice, unfair confusion Patten, precedent. See Van 128 Court jury.”). mislead potential 746-47; Musladin, at 127 at S.Ct. 653-54. Indeed, Rule is different in kind 702 Crane, Washington, in

from rules has not Although the Chambers, Rock, and Holmes. The evi- issue, prior addressed this several of our cases, their dentiary by rules in those whether a trial court’s decisions considered terms, the trial court exclude required evi- discretionary determination to exclude that had a critical effect crucial evidence dence a defendant’s constitutional violated trial, justi- with little or no rational on the Rushen, Perry v. 713 F.2d rights. In a general, precluded In the rules fication. (9th Cir.1983), a we derived 1450 testifying, from excluded testi- defendant a trial balancing test to determine when witnesses, key or mony percipient court’s of discretion to exclude exercise all evidence excluded introduction valid eviden- evidence under otherwise contrast, In relating to a crucial defense. tiary might violate a defendant’s rule a trial require 702 does court to Rule v. rights. refined this test in Miller We Rather, it a exclude evidence. authorizes (9th Cir.1985), Stagner, 757 F.2d 988 testimony “if it will to admit grounds, F.2d 1090 amended on other to understand the the trier of fact assist (9th that, Cir.1985), and held Lenzini, a Farr or fact in issue.” evidence determining proceeding, In a habeas (internal marks quotation P.2d at 318 in the exclusion evidence whether the omitted). Accordingly, a decision petitioner’s pro- due court violated 702 itself constitutional would be Rule is test. rights balancing cess involves precedent. consistent with of- importance of evidence weighing against fered the state’s by defendant could not Because Moses success exclusion, court should interest fully argue Rule 702 its terms infringed constitutional consider ^[1] probative value complete defense, argument on the central issue; ^[2] best interpreted as challenging the trial reliability; ^[3] whether it is capable court’s exercise of discretion this case to evaluation trier fact; ^[4] on the it is the sole evidence expert testimony. Moses has not whether exclude identified, we have not found, a Su- issue merely cumulative; ^[5] major part peal contrary whether constitutes is not anor unreasonable attempted defense. prece- of the Supreme Court 994; Cambra, Casey accord Chia v. 360 dent that interpreted. Id. Miller See (9th 997,1003-04 Cir.2004); Alcala v. Moore, (9th Cir.2004). F.3d F.3d (9th Cir.2003). 334 F.3d Woodford, otherwise, noting dissent concludes The dissent relies this balanc applied that we balancing Miller of its AEDPA ing part analysis test as test the context of AEDPA review. See appellate court’s to af the state decision Chia, However, 360 at F.3d 1003-04. we of Dr. firm the exclusion Wilson’s testimo so the Supreme provided did before Court op. dis. at 1112-13. For ny. purposes See further clarification of the bounds of an however, analysis, of AEDPA appellate court’s AEDPA analysis in Mus- only clearly definitive source of [T]he ladin and Van Patten. As discussed law under established federal AEDPA is above, these cases clarified that in the dicta) (as opposed holdings Supreme absence of a Court decision that Supreme as of time of the Court “squarely gives addresses” an state court decision. While circuit law issue or authority” may “persuasive pur- be for “clear answer to the question presented,” determining poses of whether a state we cannot conclude state court’s is an appli- court decision unreasonable adjudication of that issue resulted law, of Supreme only cation Court to, contrary decision an or unreasonable Supreme holdings binding are Court’s of, Supreme application precedent. Court only on the state courts those hold- Patten, By Van 128 S.Ct. at 746-47. ne- reasonably ings applied. need be cessity, Van Patten impose and Musladin (9th Murphy, Clark v. 331 F.3d 1069 on prece- limits the relevance of circuit Cir.2003) (internal omitted); citations see dent; irreconcilable,” they “clearly Crater, (“[Section] also 491 F.3d at 1126 Gammie, (9th Miller v. 335 F.3d 2254(d)(1) by renders decisions lower Cir.2003), with the conclusion circuit nondispositive courts for habeas appeals.”); may “open law to fill question[s]” be used (9th Hall, Brewer v. 378 F.3d Supreme Court’s holdings pur- for Cir.2004). Nor can we conclude that Mil- Musladin, poses analysis. AEDPA merely ler application “illuminates the 653; Crater, at See also 491 F.3d at clearly established federal law as deter- that, Musladin, & (explaining n. 8 mined the United Supreme States Supreme accept- Court “discussed and Crater, Court.” F.3d 1126 n. 8. 2254(d)(1) § the principle imposes ed” Unlike progeny, and its Mil- prece- “limits on the relevance circuit ler not concerned question with the dent”). given evidence, whether rule of by its terms, own impinges on defendants’ consti- Because the Court has not rather, rights; tutional the Miller balanc- squarely us, the question addressed before

ing test evaluates whether trial court permit AEDPA does not us to rely our used its discretion to ap- unconstitutionally balancing test to that a conclude state trial ply an Thus, otherwise valid rule. because court’s exclusion of evidence under Rule balancing Miller test ais creation of clearly 702 violated established law, circuit rather than a Court Therefore, precedent. we cannot holding, we fault cannot the state appellate court for it, agree argument with the employing dissent’s long so as state’s disposition ultimate ap- applicable Miller is here. likely

B outweighed prejudicial effects jury. on the This decision was not con- that he is Moses next contends to, trary of, unreasonable relief the trial to habeas because entitled controlling Supreme precedent, see portions some of Jennifer court excluded Scheffer, 523 U.S. at diary. The trial Moses’s handwritten provide and it therefore does not the basis provider testimony medical court admitted granting petition Moses’ habeas under documentary establishing our deferential AEDPA of re- standard depres that Jennifer Moses suffered from view. thoughts experienced suicidal be sion her The trial court also

fore death. admit indicating multiple journal entries ted V depressed and con Jennifer Moses Finally, urges to grant templated The state suicide. the writ because the court’s decision court concluded that the trial court abused opinion testimony to admit the of Dr. Har- excluding its discretion in certain hand ruff, Thompson, Evan and Tamara Muller entries, journal any written but that error In rights.6 violated Moses’s constitutional light harmless. In of the involved was claim, support of this Moses relies on Su- court, by admitted trial even preme Court that it establishing decisions assuming that the court’s exclusion of province the jury the sole to deter- error, evidence was constitutional we questions credibility mine weigh and to agree that it did not “substantial and the evidence adduced at trial. See Gold- injurious determining effect or influence States, 474, 477, man 245 Brecht, v. United U.S. 38 jury’s verdict.” 507 U.S. at (internal 166, (1918); 623, 410 S.Ct. 62 L.Ed. see also quotation 113 1710 S.Ct. omitted). 18-19, 1, v. Young, marks United States (1985) 1 (prose- 84 L.Ed.2d

C personal cutor expressing erred view guilty). also maintains that Moses the defendant was appellate court’s affirmance of the not support cases do Mo These to trial court’s decision exclude Jennifer opinion ses’s contention that the autopsy photograph contrary was Harruff, Ta Thompson, of Dr. Evan Supreme precedent. Court We dis upon mara improperly Muller intruded agree. appellate The state court noted province thereby deprived autopsy photograph that the was cumula a fair of these Moses of trial. Neither already tive the trial because court found, cases, any nor other that we have showing photographs admitted other Jen supports general proposition that the body and nifer Moses’s emaciated because by the Constitution is violated admission multiple witnesses had testified that Jenni testimony concerning ultimate expert an in the weight fer Moses had lost months by the trier of fact. issue to be resolved appellate prior her death. The state AEDPA, re Accordingly, under we must photograph court concluded that ject contrary. See cumula Moses’s claims properly excluded because was Patten, 2254(d); § 128 probative tive and because its value was 28 Van U.S.C. satisfy require- disagree 6. We with the state's contention that in a manner sufficient See properly exhaustion this issue was not exhausted. The ments of AEDPA's doctrine. Silva, (9th Davis correctly F.3d 1008-09 district court concluded Cir.2008). argued appellate issue to the state 746-47; Musladin, an trary application 127 S.Ct. at to or unreasonable at precedent. Supreme 653-54. Court has not an- That VI holding surprising, such a is not nounced sum, “highly AEDPA’s deferential ... it is “well-established since rul- evaluating standard for state-court testimony concerning an ultimate issue is ings” v. Prov- directs the conclusion that Moses’s per improper.” Hangarter not se Co., Visciotti, 373 F.3d ident & Accident Ins. must petition habeas be denied. Life (9th (internal Cir.2004) quotation (internal S.Ct. 357 omitted) (alterations original). omitted). marks quotation marks Although permitted witness is not “[a] “squarely any Court has addresse[d]” give opinion the defendant’s a direct about in sup- issues Moses three identifies expert may guilt or innocence .... an port petition of his Van the writ. testify an ulti- regarding otherwise even Patten, 128 S.Ct. at 746. AEDPA tethers mate to be resolved the trier of issue our review to hold- habeas Lockett, 919 fact.” United States v. F.2d 2254(d); § ings alone. See 28 see U.S.C. (9th Cir.1990); also Fed. see Crater, also 491 F.3d at n. 8. 1126 & 704(a). R.Evid. disposi- Because the state court’s Here, Dr. opinion Harruff testified to contrary appeal tion of Moses’s was not as a medical examiner that Jennifer Moses apposite unreasonable died as result of a homicide. Dr. Har- precedent, cannot we testify ruff not that did Moses murdered grant the writ. Similarly, Thompson Moses. Jennifer did state appellate Where the court itself issue; rather, testify on not the ultimate error, identified constitutional we conclude he that he death testified classified the as that identified error have a did not expertise homicide based on his as a injurious “substantial and influ- effect or expert and his of ballistics assessment Jen- determining in jury’s ence verdict.” Finally, nifer Moses’s wound. Muller tes- Brecht, 113 S.Ct. 1710 that, in experience,

tified her victims of (internal omitted); quotation marks see likely domestic violence are most to be Fry, also 127 S.Ct. at 2328. they attempt killed when to leave their PETITION DENIED. domestic situation. Like Dr. Harruff and Thompson, express opin- Muller did not GOULD, Judge, dissenting: Circuit ion to whether as Moses murdered Jenni- 27, 2002, Thus, September Jeffrey On Moses’s precedent fer Moses. circuit ratifies Jennifer, wife, tragically court’s gunshot the state decision to admit the tes- died of a Harruff, timony Thompson, of Dr. respond- and wound her head. police When Lockett, Muller. See at 590. mother, F.2d ed to a call from Moses claimed that Jennifer had commit- Ultimately, however, for of our purposes ted suicide. Moses said that had Jennifer review, it AEDPA suffices to determine depressed been and had come downstairs that “squarely no Court case has down, gun, with a knelt and shot herself the claim addresse[d]” that Moses ad- gun the head while Moses tried to take the Patten, vances. Van S.Ct. at We away from her. Moses was tried that conclude court’s premeditated, degree first murder of decision to affirm court’s decision wife, opinion testimony possession to admit the his and for unlawful of a of Har- ruff, Thompson, and Muller was not con- At Moses’s prosecution firearm. trial the intentionally depression shot would that Moses had that have resolved argued head, while in the back of the his wife itself before the date Jennifer died. Dr. had com- countered that Jennifer additionally Wilson would have testified depres- mitted suicide because severe about the increased likelihood that some- abuse, and alcohol drug sion suffering major depression one would attempt night stop her his commit suicide and about perception Among prosecution’s failed. evidence lay persons fully not do understand testimony from medical examiner was implications major depression. concluded, and a ballistics who each The trial excluded court Dr. Wilson’s factors, after an examination of forensic testimony, that Dr. stating would Wilson likely that Jennifer’s wounds were not self- “very have offered information of little inflicted, though permitted the evidence weight,” namely, depressed people are the conclusion that suicide had occurred. likely more to kill themselves people than presented prosecution also evidence depressed, that access to guns for de- be- prior incident of domestic violence bad, people pressed drugs, Moses, by and his wife. tween Moses alcohol, stress, and financial marital strife contrast, highlighted Jennifer’s which, problem make worse—all history major depression, including sui- reasoned, juror’s fell within a com- ideation, problems eating cidal with disor- mon The trial knowledge. judge dis- abuse. Moses also ders substance remaining missed Wilson’s testimonial of- testimony by a of Jenni- presented friend sum, that ferings being, as there was a stating fer’s that Jennifer and the friend Jennifer, roughly higher 0.25% chance that very night had talked on the of Jennifer’s diagnosed major as an individual de- encompassed death and that the discussion pression, would commit within the suicide subject of death. period diagnosis six month between her presents high Thus case contrast non-depressed and her death than that a question whether Jennifer’s death judge would. trial person The determined consequence the of her own ac- suicidal pro- that this information was of minimal tions, the or result of murderous conduct value, by outweighed prejudicial bative by system when justice, Moses. our potential jury for confusion. effects jury a fair trial is held the decision of the jury an If the guilty on such issue is conclusive. The found Moses of second- his present first-degree'unlawful defendant had been able to degree murder and fairly, case I would no issue defense possession Washington of a firearm. The jury’s the if with decision. But eviden- Appeals sustained convic- Court Moses’s tiary rulings against deck was the stacked tion, and the Supreme State defendant, be we should concerned petition denied for review Court Moses’s insist on new trial. Having prog- without comment. made no courts, in the filed his ress state Moses key evidentiary ruling I conclude that a corpus in petition a writ of habeas rendered trial unfair. Moses court The dis- August federal in sought Dr. testimony introduce from petition. trict court denied Moses’s Wilson, expert depression Lawrence rejected argument court district with who the defense wanted to discuss Dr. testimo- exclusion of Wilson’s jury diagnoses Jennifer’s recent Fourteenth ny had violated his Sixth and major depression by three health different reasoning the tes- rights, Amendment professionals, general care nature of and of major depression, timony unlikelihood would have been cumulative such value that its exclu- probative fully fairly limited defendant like Moses pre- any deprive evidence, sion did not Moses of constitu- sented his we should be much rights. appeal argues tional On Moses accept more reluctant to the conclusion in judge’s the trial exclusion of Wil- kept case where the state court from the testimony clearly son’s Moses his denied jury testimony all important of an defense right established constitutional expert. Although majority a defense. affirms A state court “contrary decision is to” view, I think district court’s rather clearly Supreme prece established Court testimony the total exclusion of of this dent if “applies the state court a rule that important expert defense witness was a contradicts the governing law set forth” in grave error that should shake our confi- Supreme Court decisions or “confronts a dence that reached its verdict set of materially facts indistin after a fair trial. Hence I respectfully guishable a [Supreme from Court] decision dissent I grant because would habeas re- ... and nevertheless arrives at a result require retry lief and the state to Moses [Supreme different from prece Court] light of the state trial court’s exclusion of Taylor, dent.” v. Williams 529 U.S. testimony.1 Dr. Wilson’s 405-06, 120 S.Ct. 146 L.Ed.2d 389 argues that the trial court’s deci- (2000). I conclude that exclusion of Dr. sion to exclude Dr. Wilson’s vio- Wilson’s “contrary was not to” lated his rights constitutional under Wash- clearly law, established Supreme Court be- Texas, ington cause the recognized (1967), 18 L.Ed.2d 1019 progeny. and its principle required general Washing- up against Moses is a difficult standard. ton that a defendant has the pres- claim, To succeed the state court’s ent defense. It cannot be said that the to, decision must have “contrary been state court appeals applied wrong of, involved an unreasonable contrary law Supreme dictates of law, clearly established Federal as deter- precedent. Nor were the facts of Supreme mined Court.” 28 U.S.C. materially Moses’s case indistinguishable 2254(d)(1). § But the Court has from those of the Court cases long guaranteed the defendant’s that he invokes. In Washington, the trial case, present his extraordinary and so the prevented court had percipient witness total, exclusion in as contrasted awith testifying statute, because of a state limiting testimony, mere key of a de- which the United States witness, fense in a murder held violated the defendant’s Sixth Amend- specialized expertise where pertinent, right ment to compulsory process gets Moses inside the door where we witnesses, obtaining applicable to the giving should be very closest of atten- through states tion to claim. the Fourteenth For if he is Amend- right, possi- bly 23, a ment. Washington, convicted an innocent man of 388 U.S. at 87 Though murder. we accept must that S.Ct. 1920. In risk Chambers v. Mississippi, pause without much 284, a case a 1038, where 410 U.S. 93 S.Ct. 35 L.Ed.2d 297 conclusion, not, Reaching 1. I need generally denying helpful much of the evi- not, any do remaining address of Moses's proffered by admitting dence Moses and al- However, arguments. if the exclusion of Wil- tendered, prosecution most whatever the of- require son’s does not in itself ha- process by fended due depriving Moses of a relief, beas very then I believe a close majority fair trial. The never addresses this required question look would be at the wheth- question. er the cumulative rulings, force of trial court

1109 governing legal “correctly identifies the it (1973), evidentiary specifical- state rules — [objectively] unreason- applies rule but a defendant preventing rule ly, a “voucher” 407-08, Id. at ably the facts” of the case. to cross-examining his own witness from 410-11, 2704. Thus' “section 107 S.Ct. hearsay prevented against rules general — 2254(d)(1) grant a court to permits federal one witness presenting a defendant a based on the to habeas relief prior a confession repudiated who had facts legal principle to a set of governing who other witnesses crime and the same in which from those of the case different repudiation. have discredited would Lockyer v. was announced.” 294, principle The United at 93 S.Ct. Id. Andrade, 155 538 U.S. held that exclusion Supreme Court States (2003); v. 144 see also Wilcox directly affect- L.Ed.2d this critical evidence (9th Cir.2001) McGee, 1242, 1244 241 F.3d denied the guilt the ascertainment ed (“The not have ad- 302-03, Supreme Court need at fair trial. Id. a defendant case; factually identical v. South dressed also Holmes 1038. See S.Ct. 2254(d) that the only requires § Carolina, S.Ct. U.S. (internal (2006) (state the law.” clearly determine evidentiary rule Court L.Ed.2d 503 citation, and alteration omit- quotations, if third-party guilt excluding evidence of ted)). legal review of the independent de- Our strong violated case was prosecution’s a “firm leave us with convic- complete question de- must present right fendant’s committed a Arkansas, the state court fense); 107 tion” Rock Id.; (1987) (state clear, error. objectively unreasonable 2704, 97 L.Ed.2d 37 Andrade, 74-75, see also excluding posthypnosis evidentiary rule 1166.2 unconstitutionally burdened de- S.Ct. testify at trial right fendant’s from the Washington line of cases post- evidence that clear state absence of firmly es- Supreme Court United States invalid). hypnosis recollections general proposition tablishes right a constitutional has spe- cases defendant these None of The crux here at trial. present a defense court’s exclusion cifically addresses a state ap- is to be principle how that concerns expert based on a critical defense state court’s in the context of the plied concerning the admissi- evidentiary rules any testimony from Mo- excluding a trial decision testimony and bility testimony was expert whose ses’s defense the ex- of whether court’s determination issue in Moses’s on a critical helpful proffered testimony in view would be pert his wife. I for murder of Accordingly, con- of fact. to the trier decision was that the state court clude itself, stated: the Court clearly established “contrary to” testimony of wit- to offer the right “The precedent. attendance, if nesses, compel their and to plain terms necessary, is on whether attention must focus Our defense, present an “unreasonable decision was state court as well as of the facts version Supreme defendant’s clearly established of application” may so it prosecution’s decision the A state court precedent. ac- [A]n truth lies.... where the if decide application” an “unreasonable constitutes Supreme application of the 2254(d) unreasonable mandates Although section holdings Murphy, 331 F.3d precedent. Clark v. precedential only Supreme Court Court’s may 1062, (9th Cir.2003); right, circuit law be v. Duc clearly a Duhaime establish Cir.1999). question 597, (9th authority” harme, on the “persuasive F.3d 600-01 was an determination a court's whether state cused has the ... right present to his own infring[e] upon weighty interest of the witnesses to establish a defense. This accused and ‘arbitrary’ are or ‘dispropor- right is a pro- fundamental element of due purposes they tionate to the designed 19, cess of law.” Washington, Holmes, 388 U.S. at 324-325, to serve.’” 547 U.S. at (citations 87 S.Ct. 1920. 126 S.Ct. 1727 and quotations omitted, second in original). alteration See Washington, Since the United States 683, also Kentucky, 690, Crane v. 476 U.S. Supreme continually Court has reaffirmed (1986) 106 S.Ct. 90 L.Ed.2d 636 this fundamental right present a de- (holding that “an component essential Chambers, fense. pro- procedural fairness is an opportunity to be rights claimed: “Few are more fundamen- heard”). tal than that present accused to defense[,]” witnesses his own and stated The central theme running through each that it was not establishing any princi- new of these clearly cases is the established ples merely of constitutional law but apply- right that the guarantees Constitution to a ing established ones to hold that the trial criminal present defendant to relevant and rulings court’s deprived the defendant of a material witnesses in his defense. These Chambers, fair 302-03, trial. 410 U.S. at cases circumscribe the ability state’s 93 S.Ct. 1038. The Court reemphasized infringe right: may limit the the right’s centrality to process due of law defendant’s only when that limi- Illinois, in Taylor 400, 409, v. 484 U.S. 108 tation has a nonarbitrary purpose(s) that is (1988). (are) 98 L.Ed.2d 798 proportionate More to the corresponding Holmes, recently in the Court infringement stated: upon See, the defendant. and federal Chambers, “[SJtate rulemakers e.g., 93 S.Ct. (“the broad latitude under the Constitution to to confront and to cross- establish rules excluding evidence from examine is not absolute.... But its denial latitude, however, criminal trials. This significant has or diminution question calls into limits.... guarantees [T]he Constitution ‘integrity ultimate fact-finding criminal a meaningful opportu- defendants process’ requires competing nity present a complete (citations defense. This closely interest be examined.” omitted)).3 abridged by evidence rules that government's Patten, 3. The Carey citation to Mus Van Court held that its ladin, jurisprudence clearly does 166 L.Ed.2d hold that coun- (2006), participation plea sel’s support argument hearing "by in a that the speaker phone should be adjudication treated as a state court's 'com- was not plete par denial of counsel’ on contrary total to or an unreasonable absence.” Id. at 746. The Court noted law, that it clearly established federal does not avail clearly regarding established law Musladin, it. In Court held that finding of a Sixth Amendment violation with- the effect rights on defendant's fair-trial inquiring out perform- into counsel's actual spectator courtroom open conduct was an absent, ance totally when "counsel is either question jurisprudence. in its Id. at 653. prevented assisting during the accused clearly Court reasoned that it had estab stage critical proceeding, but not where general lished the law only in this area as to participates by speaker counsel phone.” Id. government-sponsored practices, not as to at 746. contrast, spectator By conduct. Id. in the precedents sufficiently Neither of these un- case, clearly Court has dermines our Circuit law so as to allow the law, applicable established the as outlined majority disregard light it in of the stan- above. Gammie, set dards (9th in Miller v. 335 F.3d 889 Similarly, majority’s Wright reliance Cir.2003). ("Issues decided [the Su- - Patten, -, v. Van U.S. 128 S.Ct. preme Court] need not be identical in order to (2008), unavailing. Rather, L.Ed.2d 583 is controlling In be [in Ninth Circuit]. Here, Washington Ap- testimony, evidentiary as the Court of via rulings, but it noted, peals thing, Wilson’s is another and of drastic conse- evidentiary Moses, excluded under a quence for for the state court to admissibility expert tes- governing rule entirely excluded important his de- 1) timony, requires which the witness expert. fense 2) qualified expert, as an testi- Chambers, above, as discussed mony helpful would be to the trier of fact. Supreme Court considered and invalidat- The state court determined that application ed the state’s hearsay its trial not court did abuse its discretion noted, rules. The preliminarily determining proffer that Dr. Wilson’s rule, hearsay “The long which has been prong. failed the second The court of recognized respected by virtually ev- concluded that Dr. appeals Wilson’s testi- State, ery experience is based on mony only added that Jennifer had a mini- grounded the notion that untrustwor- mally greater committing chance of suicide thy presented evidence should not be person diagnosed than a who had not been Chambers, the triers of fact.” 410 U.S. at major during pe- the time depression Nonetheless, 93 S.Ct. 1038. in question, dismissing remaining riod Court held that application its in that proffer as information either would case was unconstitutional: the Court ad- already be introduced other witnesses monished, “where constitutional rights di- average juror’s or that was within the rectly affecting the ascertainment guilt knowledge. common implicated, are hearsay may rule evidentiary The state rule at issue is of applied mechanistically be to defeat type United States justice.” ends of Id. at precedent contemplated has to be a 1038. Court overturned the state’s valid exception general to a defendant’s hearsay rule in those See, right present e.g., a defense. circumstances, despite the rule’s status as Holmes, 326-27, 547 U.S. at 126 S.Ct. 1727 perhaps “respected[and the most most] (“... [Wjell-established rules of evidence frequently applied [rule evidence] permit judges to exclude if Despite trials.” Id. the values probative outweighed by value is cer- rule, hearsay served it could not tain other unfair prejudice, factors such as way in a applied unreasonably be issues, potential confusion of the or present denied the defendant his jury. Plainly referring mislead the a defense. type, rules of this we have stated that the permitting To consider whether the rule permits judges Constitution ‘to exclude ev- Moses to his defense was unrea- ..., repetitive only idence that is margin- sonably applied requires placing the exclu- ally relevant or poses undue risk of testimony in sion of the defense harassment, prejudice, [or] confusion of ” First, recognized context. should be (citations the issues.’ and quotations general presentation that as a matter the omitted, ellipsis and second brackets in at of defense witnesses lies the heart of However, original)). the fact that the ex- the defendant’s to mount a defense. grounded clusion of evidence is in familiar Washington, at 1920. evidentiary rules alone does not determine Second, trial, in the constitutionally per- that such exclusion is context Moses’s missible. It is one to limit the wife committed suicide was thing scope whether his precedent way cuit in such a that the cases [the Court] ‘must have undercut the ”)

theory reasoning underlying prior clearly cir- irreconcilable.' Id. (9th Cir.1985)).4 question There was no that she “weigh pro- We must the critical. ques- no evidence, in the head. There was reliability, was shot bative value of the prints gun. Moses’s were the tion whether the trier of fact can evaluate the question was no suf- Jennifer There evidence, the whether evidence is cumula- major depression from and times fered tive, the proves and whether inte- issue had a suicidal ideation. The was gral theory” against to the defense the jury reject or the should believe whether in in excluding state’s interest the evidence story that his wife was suicidal Moses’s order to evaluate whether it was constitu- kill attempting to herself he unsuc- when Miller, tionally (citing excluded. Id. cessfully intervened trying stop to her 994). F.2d at sense, making the fatal In a shot. from test, I Under this conclude that the trial hap- never know for what can certain we judge improperly excluded the defense ex- Did Moses shoot in cold blood her pened: First, pert’s testimony. there is no indica- try place to the her previ- blame on tion that the evidence was not To reliable. ously expressed suicidal tendencies? Or contrary, the the trial court the excluded life, own ensnaring take her she did in testimony part assumption based on its he there culpability because was in the of Dr. testimony bulk Wilson’s jus- In stop system her? our tried within the average juror’s was “common tice, judges recognize must appellate knowledge,” suggesting that the evidence know for they never certain what were can only was in fact not plausible. reliable but underlying facts. Determination of the Second, reasons, similar Dr. Wil- in the province jury. facts is those testimony son’s proposed readily with- we must do is But what to ensure the jury’s ability the to evaluate. Dr. Wil- jury which the receives process presented son would no complicated one, is a fair so that can have question we or technical issues jury navigate for the in its determination of criminal confidence straightforward, but rather as- beyond a reasonable guilt doubt. of, among major sessment things, other view, my under the circumstances of depression and im- generally, suicide case, application Washington’s Moses’s plications a diagnosis major de- expert evidentiary unconstitutionally rule pression, potential be- inconsistencies Moses his denied de- tween external appearances and the jury. put key fense To issue a a depressed internal state of sui- and/ way, did the different interest state’s cidal individual. preventing perceived what the trial judge As for whether would to be inadmissible under Wash- cumulative, have been as the evidentiary ington constitutionally rules noted, jury ultimately way have to make to have heard concerning much the evidence jury hear Dr. testimony? Wilson’s To recent history Jennifer’s treatment make such a determination habeas either the different cases, medical examiners employ balancing “we test for or from themselves determining whether individual from exclusion testi- records mony process.” violates due examiner’s office who read the Alcala v. (9th Cir.2003) Woodford,334 F.3d jury. contents of medical file to the (citing Stagner, However, Miller F.2d did not testi- hear the See, Although preceded Cambra, Miller itself requires. e.g., enactment dent Chia v. AEDPA, applied we have (9th its test after AED- Cir.2004). F.3d 1003-04 prece- PA to determine what history through to offer Dr. defendant’s mental health violated mony hoped Moses unlikelihood that concerning: the fundamental fairness when defendant’s Wilson from her would have recovered Jennifer insanity). sole defense at trial was death; time of her major depression I Although majority’s understand the diag- that individuals higher likelihood in I reasoning analysis, line of am left with major particularly depression, nosed expert the conclusion that the Dr. Wilson’s factors, have individual risk with Jennifer’s testimony critical to in was Moses’s case committing suicide than individuals of full presented. context Moses had ad- diagnosed; possibility signifi- a so only presence mitted not to his when Jen- successfully cantly depressed person might died, reaching nifer but that he was either her ac- depression to his or mask gun actually for the had his hand on it unlikelihood that quaintances; and the when it fired. Moses’s trial boiled down to fully experts who are not understand those a determination of whether Moses killed ramifications major and nature of de- requisite Jennifer with the intent or jury also did not hear Dr. pression. whether Jennifer had committed suicide as of of Jen- analysis other evidence Wilson’s Moses her. stop tried Given this de- state, journal emotional such as her nifer’s theory, testimony fense Dr. Wilson’s was jury Thus the did hear some of entries. that Dr. testimo- central to the defense’s case. It was im- the information Wilson’s encompassed, but it never ny would perative jury fully that the understand not portions; substantial the evidence heard only major history depression Jennifer’s of cumulative. only partially was nature, attending implications, but also the occasionally-misleading ap- and external in an A defendant a murder case has pearance major depression of and suicidal points interest in his defense presenting Moreover, generally. tendencies through witnesses whose views and themes theory the defense of the case and support presenting points had an interest his of testimony may way ordered in a who, whose be through Dr. in a defense Wilson coor- persuading jury aimed at conclu- way, put together dispa- dinated could Here, sion of doubt. if the state trial court pieces puzzle rate that Jennifer’s expert testify, had let the defense but had mental health providers, treatment scope limit on imposed some reasonable jury portions whom the heard of Jennifer’s testimony, managing his aim of with the records, presented, give medical and trial avoiding time and cumulative testimo- helpful an overview that would be ny, significant no constitutional issue could jury’s understanding. my But in what presented. be view makes testimony my view was Dr. Wilson’s the decision of the state trial court Dr. significant probative value. Wil- unreasonable providing aimed at son’s the total exclusion of precedent help jury context to framework and testimony by key defense witness psychologi- make sense the medical in a murder case on a critical issue that diagnoses that it heard from other cal likely jury. could affect verdict witnesses, plausibility to assess the 737 F.2d Boykins Waimwight, Cf. The trial Jennifer had committed suicide. (11th Cir.1984) that funda- (noting 1544-45 judge based his dismissal of Wilson’s mental fairness is violated when the evi- large part on assessment crucial, being dence excluded is material as likely are more “depressed people critical, highly significant factor in than are not people kill themselves who defense, concluding that exclusion I think understands testimony concerning depressed. of defense witness’s that,” reasoning. There are flaws with this corresponding, re- series First, guns judge’s ductive that “access statement and the assessments comment, above, depressed is a bad about people depressed who stated thing.... Drug people being likely and alcohol use makes more than non-de- worsef,]” Although suicide, and so on. problem pressed people to commit both much Dr. the trial court thus reduced import of Dr. misunderstand Wilson’s testimony being Wilson’s common testimony: his statement concerns the knowledge, though specific and state- probability depressed person that a will judge ments that the trial made are indeed lifetime, commit suicide over not his/her arguably knowledge, common or least depressed person the extent to which a is sense, analysis an of Dr. common Wilson’s likely non-depressed person more than a testimony that proffered reveals those sim- Second, to commit suicide. the calculation an unfair character- plistic propositions are falsely trajectory assumes a linear that is testimony. ization of the essence of his an inappropriate inference from the statis- judged The state trial court would have in cites; per- tics Wilson that the overall procedure jury fair if it had let the more cent is 15% does not mean that one can expert hear the defense’s evidence and mechanistically depressed per- divide a own then make its decision. expectancy by particular son’s life time any meaningful way frame to determine in First, it significance is not without that during the chances of suicide time points one of the most central of Dr. Wil- frame. The trial state court missed the renowned, testimony-as a indisputa- son’s broader message: people major with in psychiatry gener- ble the field of depression significant have a likelihood of ally depression specifically-would have committing in point suicide at some their implications major been to elaborate on lives, correspondingly, that the lives of depression, including the extent to which major depression 15% of individuals with reality major depression fact (ie., end suicide the statistic derives its diverges layperson’s impression. from the import depressed per- from focus on the implications key Elaboration on of a ill- death, duration). son’s not the life or its ness, illness, particularly a mental is Again, the trial court would have not in knowledge jurors. common of all ground been on sounder to let the Second, improperly dis- significance expert’s assess the testi- testimony carded Dr. proffered Wilson’s mony, just rather than suggesting it was studies, concerning about the increased obvious as well as de minimis and exclud- depressed person likelihood that a will ing it. The per- issue was not whether a suicide, commit that are not within the major son depression likely with is more jury members’ common knowledge. his than other individuals to commit suicide discussed, proof, offer of Dr. Wilson had but rather person likelihood among things, empirical other studies indi- major depression going to commit if cating group people one follows a suicide at all. To assess that likelihood the major who depression over their life- jury would hearing have benefited from time, about 15% will kill themselves. Both Dr. Wilson. the trial court and the Washington Court to, The trial court Appeals diminished also excluded Dr. Wil- testimony essence, son’s on the basis that indication that Jennifer had a he could state, 0.25% not on a committing probable increased chance of sui- more than not basis, during cide period preceding six-month Jennifer committed suicide. However, her death. no one percipient who was not a definitively. fairly could have done so cannot be witness characterized very objective little presented The case either as a waste of time or as “too far in the evidence of Jennifer’s mental state afield.” Dr. was indisputably Wilson com- days immediately preceding her weeks and petent give depression, views on not render Dr. death. Yet this does Wil- it strains imagination suggest that his testimony any less essential to the son’s would views have been a time waste and jury’s picture of Moses’s case. complete a help jury charged to a with deter- psychological Given dearth mining the fate of Moses. another, way one Dr. Wilson’s testimo- Further, contrary to the trial court’s ny implications major depres- the about suggestion, subject posed matter no sion the unlikelihood of Jennifer’s re- and confusing Indeed, likelihood of jury. covery pivotal was to Moses’s case and all the trial court’s statement on the one hand constitutionally protected. the more was, that Dr. testimony Wilson’s in es- only defense was that Jennifer Moses’s sence, knowledge” “common is at odds It had committed suicide. was essential statement, with its subsequent on the oth- major jury depression that the understand hand, er testimony poses a risk of conjunction history. in Ex- with Jennifer’s minimal, jury any poten- confusion. And testimony clusion of Dr. Wilson’s handi- tial risk for confusion could have been ability an capped impart such contained simple, clarifying cross exam- way, another understanding. Stated ination. potential As for some get present not a fair shot to defense did testimony of Dr. aspects Wilson’s to be theory expert through its defense testimo- points cumulative of established testi- ny. witnesses, mony from other or from docu- contrast, in By the state’s interest whol- sources, solution, mentary a reasonable ly testimony in excluding Dr. Wilson’s light Dr. fact that Wilson’s testimo- judge instance was minimal. The trial ny added some additional perspectives jury already noted that would know depression possi- about the nature of and there were firearms in the Moses it, recovering bilities of from would have home and would hear evidence of Jenni- permit testimony, Dr. been to Wilson’s but and psycho- fer’s various recent medical to draw reasonable lines or limits on its logical treatments. The trial court sum- scope. interest, effect, marized the state’s as Dr. excluding state’s interest Wil- testimony follows: “the witness ... testimony son’s was minimal when a It poses would be waste of time. a risk weighed against inter- Moses’s substantial jury brings of confusion for the and us far it, having jury given est in hear too far afield of the issues relevant in this centrality theory to his sole of defense. However, case.” Moses offered Dr. Wil- testimony only Exclusion not inhib- testimony depression son’s so that the ex- ability jury’s ited the to have a clearer pert testify very could issues it, picture of it the case before but denied heart of Moses’s trial: the likelihood or clearly Moses his constitutional established plausibility that had committed Jennifer jury. to the defense suicide and the likelihood that other indi- Just as the Court in Chambers acquaintances viduals—Jennifer’s existing principles held constitutional ap- alike—would misunderstand the determined that the evidence exclusion de- pearance “major and ramifications of a prived pres- the defendant of his depression” diagnosis insight without the defense, objectively it provide. would Dr. Wilson’s ent here was Washington thereby not receive a fair application of fense did unreasonable for the trial court to exclude Wilson’s trial. The Court’s appeals to testimony and for the court of ample prec- decision and related cases affirm. give presents edent to relief. The case if Mo- question high concern because

Finally, say I cannot that the exclusion suicide, ses’s wife committed then an inno- of Dr. did not have Wilson’s prison. cent man is in As noted earlier in injurious effect” on the “substantial and Abrahamson, absolutely such a case can never jury’s verdict. See Brecht we be 619, 623, occurred, truly certain of what and in our (1993). Dr. L.Ed.2d 353 Wilson’s testimo- system justice of criminal we must rest on ability fully ny important jury’s jury’s fully decision when has been only of ma- to assess the ramifications fairly position. advised of the defense’s jor depression generally but of Jennifer’s Doubtless, the trial court could have limit- past, including diag- her various specific scope ed circumscribed the of testimo- centrality of noses. Given the this testi- ny expert, totally pre- from Moses’s but to defense, theory I mony to Moses’s sole clude that expert testifying witness from am in “grave doubt” as the error’s step drastically for me a too far in a effect, and thus cannot deem the error possible murder case where suicide was McAninch, harmless. See O’Neal v. 513 the critical issue and the deceased had a 432, 436-37, U.S. S.Ct. 130 history depression. of severe (1995). significant- L.Ed.2d 947 The error way majority reads Musladin ly hampered ability present Moses’s go pretty and Van Patten would far in complete picture accurate Jennifer’s anyone depriving habeas relief who does mental state at the time of death and its not have a case identical to one the Su death, likely implications for her cause of preme already Court has decided. To say likely and I that it cannot was not take that approach reflects an incorrect injurious have a substantial and effect on judgment may efficacy limit the verdict. relief, approach particularly habeas majority if Even were that we ironic in light Court’s re apply balancing should not test of Mil- jurisdiction cent tribute to habeas Stagner, ler v. I would not view this case in —Bush, -, Boumediene v. an “open area” where habeas relief is un- (2008). 2229, 171 L.Ed.2d applying warranted. Even without a bal- test, ancing I reach the same conclusion I would therefore reverse the district simply recourse to what the denying court’s order petition Court said in and its related corpus, writ of habeas and remand the merely cases. Our Miller case shows grant case with instructions to the writ way rational to assess considerations that prisoner and to order the released absent pertinent under the Court’s Thus, specified retrial within a I period. precedent. balancing This test does not respectfully dissent. impose a new standard of circuit-made law Here, upon presentation the states. excluded, key defense witness was get opportunity fairly

Moses did not theory. his defense reluctantly

I conclude that Moses was

unduly presenting constricted in his de-

Case Details

Case Name: Moses v. Payne

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 15, 2008

Citation: 543 F.3d 1090

Docket Number: 07-35468

Court Abbreviation: 9th Cir.