*1 bаg because the processing defendant’s at threatened, we affirm the district the DEA’s holding facility inevitable, application court’s public safety ex- and as a matter of routine procedure, all ception and the admissibility of Reilly’s belongings, his including garment bag, statement and his weapon into evidence. Thus, would have been searched. the dis- error, We find however, clear in the dis- covery of the drugs the bag was inevit- trict application court’s of the inevitable able. discovery doctrine to the agents’ failure to warrant; secure a thus, search we reverse
This reasoning extend, does not on this issue and however, remand to the district to the agents’ federal unex court for a plained new trial failure to consistent secure a search warrant. opinion. As this court noted United States v.
Echegoyen, 1271, 1280 n. 7 Judgment REVERSED and REMAND- Cir.1986), “to exсuse the failure to obtain a ED for a new trial. merely warrant because the officers had
probable cause and could inevitably
obtained a warrant would completely obvi
ate the requirement warrant of the fourth
amendment.” This contention has been
echoed with approval in United States v.
Boatwright, 822 F.2d
Cir.1987),
and United
Mejia,
States v.
the police
probable
had
simply
cause but
Appellee.
did
attempt
to obtain a warrant.” 69
No. 98-55914.
Hence,
F.3d at 320.
the district court
committed
clear error
applying the inev
United
Appeals,
States Court of
itable discovery doctrine
based
Ninth Circuit.
agents’ actual but
opportunity
unexercised
to secure a search warrant.
Argued
4,
and Submitted Feb.
discovery
inevitable
Opinion
doctrine
Filed Nov.
applies only when the fact
that makes
Granting
Order
En
Rehearing
Banc
discovery inevitable is born of circum
Filed March
stances
than
other
those brought
light
Argued and
En
Submitted
illegal
search itself. See Boat
Banc June
wright,
Thus, we reverse the appli district court’s
cation of the doctrine to these facts.
III. Conclusion
Because sufficiently exigent circum-
stances to excuse existed the officers’ fail-
ure to announce, knock and we affirm the
district court on this issue. Similarly, be-
cause we find the objective- officers
ly suspicion reasonable safety their *2 Sevilla,
Charles M. Cleary Sevilla, & San CA, Diego, for petitioner-appellant. Millar, Jr., Frederick R. Office of the State General, Attorney Diego, CA, San *3 for respondent-appellee. HUG,
Before: Chief Judge, SCHROEDER, PREGERSON, FERNANDEZ, RYMER, NELSON, T.G. KLEINFELD, HAWKINS, THOMAS, GRABER, GOULD, Circuit Judges. Opinion by Judge MICHAEL DALY HAWKINS: Dissent Judge PREGERSON MICHAEL DALY HAWKINS, Circuit Judge:
Dr. (“Dubria”), Samson Dubria a Cali- prisoner, fornia state appeals the district court’s denial of his petition federal for a writ of corpus pursuant habeas to 28 § U.S.C. 2254. This matter was heard originally a before three-judge panel of this court. We accepted the case for en banc review now affirm the district jurisdiction court. Our pursuant to 28 § U.S.C.
BACKGROUND Dubria found guilty following jury was trial murder, оf first degree rape by the use of drugs, and administering a drug in order to enable and assist himself to com- mit a felony. given a manda- tory sentence of life prison without the possibility parole. Following the denial of his consolidated direct collateral appeals court, in state sought habe- as relief district court.
The began relevant events in 1990 when Dubria became friends Jennifer Klap- with per while (“Klapper”) two were co- workers at an Ohio hospital. Their rela- a.m., but Klapper dead at 3:52 nounced Klapper not romantic. tionship was death. to determine a cause of attract- were unable physically was not that she stated death, and, time of her at the ed to Dubria death, Klapper’s her hours after Several with another romantically involved she was a coroner’s investi- body was examined discussing mar- man whom she Klapper was miss- who noticed that gator, 1991, Dubria invit- spring In the riage. ear, lycra and the earring in her left ing an reunion his class to attend Klapper ed out. were on inside pants wearing she was a television and Klapper California. on also noticed scratches investigator The the financial and did not movie fan face, including a half-moon scratch her on her trip to California to take means investigator examined her left cheek. reservations also expressed own. She Inn and in the the room at the Alistar *4 told a friend invitation. She about the can, of a a carton trash can found beer on the uncomfortable about she felt drink, styrofoam and a fuzzy navel mixed know what Dubria trip she did not because yellowish liquid. a None of cup containing boy- told her also expected from her. She that of any еxcept had the items odor away to be did want friend that she alcohol, they preserved. and were not overheard a Klapper’s him. sister from willingly spoke po- with Carlsbad Dubria Klapper in which telephone conversation during early three times the lice officers relationship pla- was that their told Dubria 16, relating essentially morning August Fur- boyfriend. a and that she tonic had story Klapper each time: he and the same expected if to ther, he she told Dubria staying campsite at a planned had trip, while on physical relations stay at the plans and when their night plans go. her have to she would cancel they campsite through, fell decided in alone and flew to California Dubria They the Inn at a motel room. arrived at up her picked then Klapper advance of and drank a and a p.m. 11:30 He beer about Thе days pan- later. airport at the several sips and had a few Klapper mixed drink days touring Southern the next few spent Klapper moved over on the mixed drink. California, evenings at the spending their lying signaled was on and bed she in sleeping and parents home of Dubria’s join put her. He his arm Dubria to 15,1991, after August On separate rooms. in they her and cuddled the bed. around Johnny taping Carson watching a talked, kissed, eventually and had They Show, camping overnight they planned on that, had in- they before sex. He stated Elijo Campground Beach at the San State tercourse, using if he asked her she was In- Diego. Angeles and San between Los him that control and told she any birth she out, into camping pair checked stead of they After taking pills. control was birth Carlsbad, Inn in California. the Allstar intercourse, to the bath- Klapper had went a.m., police re- At about 8:09 Carlsbad bathroom, room, to the then went Inn. at the Allstar sponded to a 911 call sleep went to in the same bed. on the bed lying unconscious Klapper fell Klapper after Dubria stated pulse no the door. closest to She turned. At asleep, she tossed and about police and a breathing. a.m., go he awoke to to the bathroom. 3:00 Firefighters and officer administered CPR. bathroom, he heard a “thud” While shortly thereafter and arrived paramedics returned, and, he he and a moan when activi- to restore electrical were able some on the floor. She was not Klapper found heart, not a normal ty Klapper’s but pulse. and had no He adminis- breathing any of the police nor beat. Neither He five minutes. tered CPR for about a chemical emergency personnel smelled and, calling 911 instead of рanicked then Klapper was immedi- odor in the room. room, out of the room for he ran from where ately hospital local transferred motel person working The help. una- attempts to her were further revive from his room. told him to call 911 physicians pro- office vailing. Emergency room room, ranHe back to the found himself administration of chloroform was to place out, office, locked ran back the motel one drop on a patient’s face, cloth over a got spare key, and ran back to the room return in one minute place drops two to call police 911. The arrived a few min- cloth, on the then return in another minute Dubria, later. utes who had been with and again double the dose and so on until Klapper continuously day almost and the desired level of anesthesia is reachеd. stated that night, why he had no idea she This method avoids sudden exposure to died. chloroform, concentrations of which can be
After lethal. Dubria returned to the medical Chloroform is now seldom used facility where he was working New Jer- because the margin error between sey, autopsy performed on Klap- enough chloroform and too very much is per’s body. examiner, pathol- forensic small. ogist Jariwala, Dr. Leena found some cuts Dr. Morris noted death from chlo- and abrasions on Klapper’s right eyelid, roform inhalation can occur when a small chin, cheek,
her her left and the tip amount of chloroform is suddenly. inhaled of her nose. Dr. Jariwala concluded that The concentration of chloroform in the injuries these were inflicted before Klap- blood quickly rises disrupts the heart. per’s heart stopped beating. Dr. Jariwala The amount of chloroform that can cause *5 emergency and the personnel also conclud- death under these very circumstances is ed that injuries these were inconsistent small. Dr. Morris also noted the dangers with the efforts of emergency personnel to of administering chloroform to a sleeping her on the night revive of her death. Dr. person. explained that, He if person Jariwala’s examination also revealed that awakened frightened, and became the re- Klapper had sexual relatively intercourse sulting release of adrenaline could interact close to the time of her death. After adversely with the chloroform. Dr. Morris completing the autopsy, Dr. Jariwala could concluded that Klapper had died from a no find cause of death. sudden inhalation of a small dose of chloro- Toxicological tests performed were and form. only anomalous result height- was a Dr. that, Morris also stated although level ened of in chloroform Klapper’s odor, chloroform has a strong the odor blood, tissue, liver and gastric organs. Dr. does persist. testified, “He that assum- Jariwala concluded that the cause of death ing Dubria administered chloroform to was chloroform intoxication. Klapper room, in the motel it would have 23, 1991, October On Carlsbad detec- possible been for the smell to have dissi- tives visited Dubria at Jersey his New pated before police and emergency home. They him at a nearby interviewed personnel arrived. office. The officers told Dubria that Schwartz, Dr. Gregory he accidently believed had murdered defense Klap- med- per expert when he ical emergency and an administered chloroform in room physi- rape cian, order her. agreed Dubria stuck to with his Dr. Morris about the story that he had no Klapper idea how dangers had of Dr. chloroform. Schwartz con- died and specifically trying denied to rape cluded Klapper having died after in- playing her or in any role her death. The gested, inhaled, rather than chloroform. officers did not arrest day Dubria that but He noted that chloroform’s use as a recre- charged him Klapper’s later with rape and rise, ational drug is on although it murder. still relatively He thought rare. Klapper had trial, overdosed on chloroform. He Morris, At Dr. Lucien stated a state ex- that, if pert chloroform, with she had extensive inhaled knowledge of chloro- form, explained odor would not dissipated that chloroform have is an ex- before the tremely potent dangerous police and emergency anesthetic. and personnel room ar- He stated that the standard method for rived because the persist smell would ain (9th Cir.1999). granted the F.3d 390 We hours. He eight twelve closed room ingested had review. Klapper petition if state’s for en banc noted chloroform, evapo- vapor less would of a smell. would be rated and there less OF REVIEW STANDARD conceded, however, that one could He court’s de review the district We Dr. quickly. chloroform rid of the smell of de grant deny or habeas relief cision to injuries that the also believed Schwartz Kok, v. F.3d novo. See McNab at- were Klapper’s face consistent Cir.1999) curiam). (9th (per State tempts to revive her. given presump of fact are findings court in de- took the stand his own tion of correctness. See 28 U.S.C. relationship with that his
fense. He stated
2254(e)(1)
Wood,
(1996);
§
v.
Jeffries
he
platonic.
and
Klapper was
Before
Cir.1997)
(en
1484, 1499-1500
F.3d
California,
had
he
Klapper
gone
banc).
findings
factual
The district court’s
dates with her. He
on several formal
been
are reviewed for clear error. See Houston
early
to her since
attracted
had been
(9th Cir.1999).
Roe,
F.3d
had first kissed
relationship
their
and he
of ineffective assistance
counsel
Claims
April
cuddled with her
law and fact
are mixed
questions
May
1991 after
bowl-
again
then
de novo. See Crotts
are reviewed
night
ing.
testimony
Dubria’s
about
(9th Cir.1996),
Smith,
with the
Klapper’s death was consistent
as stated in Van
superseded
statute
imme-
story
repeated
that he had
to police
Lindsey,
Reaching the merits of this
story, opinions
ria’s
concerning
claim,
Dubria’s
we conclude that Dubria cannot
guilt, elaborations of the police theory of
meet the standard that
admission
Klapper’s death, and
references
Dub-
tape
and transcript
fatally
“so
infected
ria’s involvement in the crime. Viewed in
proceedings
as to render them funda
entirety, however,
its
tape
and tran-
mentally unfair.”
Jammal v. Van de
script show what the
appellate
state
Cir.1991).
courts
Kamp, 926 F.2d
“
quite properly described
anas
“unremark-
‘[F]ederal habeas corpus relief does not
able interview.”2
questions
The
and com-
lie for errors of state law.’”
Estelle
ments
placed
Detective Detar
McGuire,
Dubria’s
62, 67,
502 U.S.
112 S.Ct.
context,
answers in
much like a
(1991)
prosecu-
116 L.Ed.2d
(quoting
Lewis v.
questions
tor’s
at trial. There was nothing
Jeffers,
764, 780,
U.S.
110 S.Ct.
in Detective Detar’s statements that
(1990)).
sug-
Therefore,
L.Ed.2d 606
we
gested evidence or theories of the case
cannot grant
upon
habeas relief
reexami
presented
were not
at trial’
nation of state-court
determinations
questions
law;
of state
we can grant relief
Nor do we find conclusive the argu
only when the conviction “vielate[s] the ment
the jury
impermissibly gave the
Constitution, laws, or treaties of the Unit
comments added weight
because
68, 112
ed States.” Id. at
S.Ct. 475.
were
made
a law enforcement officer.
question
before us is
Although
whether ad-
we have
cautioned
testimo
“
mission of the
unredacted
*7
and tran-
ny of law enforcement officers
‘often car
script violated Dubria’s
right
constitutional
ries an
of special reliability
aura
and trust
”
process.
to due
worthiness,’
acknowledges that
Gutierrez,
United States v.
the
(9th
and
169,
were
Cir.1993)
admissible
995
F.2d
(quoting
for a
purpose
limited
show
when United
Espinosa,
604,
States v.
827 F.2d
—to
tests,
confronted
toxicological
with the
Cir.1987)),
we examine officers’
Dubria could not and did not explain why a
in
statements
context to
wheth
determine
woman he
continuously
alone with
they
er
fundamentally affect the fairness
prior
the
(no
suddenly
trial,
hours
up
turned
of the
see id.
error in introduc
dead from
evidence).3
chloroform intoxication. When
Here,
tion of
Detective De-
2. The
Appeal
comments, however,
California Court of
concluded
...
officers’
sug-
The
that it found the interview
gested no
People pro-
more than
the
posed
prove
at trial.
nothing
There was
generally unremarkable. There is
doubt
no
particularly damning in the officers’ state-
the
accusatory
officers
suggested
were
and
suggestions
ments or
of evidence or theo-
variety
ways they
in a
did
believe
not
People
present
ries
the
that
did not
or offer
appellant.
jury
The
certainly
would
under-
at trial.
police
stand
position
this to be the
and
give
would
weight
to it no
they
more
than
3.
opinions
We
not
do
assume that the
of an
appellant
would the fact
charged by
the
investigating
preju-
officer are presumptively
prosecutor
prose-
Harber,
with murder or that the
dicial.
236, 238,
United States v.
53 F.3d
Cf.
clearly
cutor
appellant.
Cir.1995)
also disbelieved
240-41
(presuming
judge.
timely
by
corrected
the trial
pre
in a
questions
were
tar’s statements
DeChristoforo,
to Dub-
416 U.S.
gave
Donnelly
context
See
trial interview
types
1868,
the
They
637, 644,
were nоt
ria’s
Detar: There’s no question. The evi- Detar: And the facts show that your
dence is conclusive. responsible [sic] for it....
Dubria: No. Detar: your That [sic] responsible. I, I’m just Detar: flabbergasted, I, to be Okay? Sam, honest you with I think your Dubria: No. digging yourself [sic] in a hole ... Dubria: Um-hum. detective, Okay, Dubria: can I you ask a Detar: ... that is going to you cause question ... unintelligible ... grief more cause I’ll tell you some- Detar: Sure. thing. gonna What’s happen is ... [sic], Dubria: your you Because saying either “A” your [sic] a cold blooded that I had something to do her ... murderer What, death. what’s the evidence No, Dubria: I’m not. you telling [sic] me I that have to Detar: Listen to me. Listen to me. do it ... important This is you for to under- Wait, wait, wait, wait, Detar: wait, wait, I you stand. want to grasp this be- wait, minute, wait a wait a minute. cause I do care. Okay, you if lie to I’m not to play any here game. kind of us, jury then the everybody else Dubria: I understand. in the gonna world is say, he’s a cold you Detar: I want to understand some- blooded murderer. Okay? Listen to thing. You know happened what I’m not me done yet. Okay. Now and, there I and know what happened to listen me. there ... Alright. Dubria: Okay. Dubria: “A”, Detar: Either gon- that’s what [sic] Detar: So now is the opportunity na clean, happen, or “B” you gonna for it’s come for you to do come something like, good you across he day ... made mistake. It (sound of sigh), guys look I need to was an accident. He didn’t mean to you tell something. her, kill as a matter of fact he was so Dubria: distraught Um-hum. upset about the fact, CPR, a, that he did Detar: ... he par- this is called the happened. what amedics, mistake, it was a it was an Dubria: Um-hum. jury accident. The will Um, Detаr: I up messed sorry. I’m that. believe They’re Dubria: Um-hum. all believe these lies. Um, Detar: I believe and there’s no in my doubt mind. As evidenced the excerpts, for long Dubria: periods Um-hum. during time the interview De- tective simply Detar: That Detar you caused her stated his death. And I your don’t think that about happened Klapper [sic] murder- and did er or anything like that ... any ask questions. At one point, explained Dubria: Uh. Detar Dubria his theo- ry about what a, night occurred the Klapper Detar: But I have no doubt died. you protested caused When Dubria Okay? her death. Detec- tive Detar was “putting words in a, [his] Dubria: That’s that’s a strong accusa- mouth,” Detar replied, really “I tion ... believe this.” Additionally, Detective Detar re- this, Detar: So what I’m asking peatedly told know, Dubria that no one on I’m not accusing you any- story: would believe his thing. I’m stating what I feel the facts are. your [can Detar: write dоwn version Dubria: Right. of the events everybody w]hich in the *11 that I talked to lie, people Detar: all the or I can So know is a gonna
world all over the say that that chloroform is the issue. about them the truth tell say, are liars? mistake, hospital, it will that was was a That there an accident ... [*] [*] [*] [*] [*] [*] Detar: We’ve got experts, medical ex- believe that They’re not gonna Detar: aminers, toxicologist ... terview tape and rogation ply referred he was trial because “evidence” given at cluded For evidence, other Detar: Detar: Moreover, trial, what you have What man, responsible believe think, Think about obvious going example, the distinct “evidence” truth. Detective Detar guilty. tactic to proved read the apart there your [sic] Sam, I realize following exchanges: for you gotta get I’m that that. to such evidence as several times it did not exist. no clue you. [*] [*] from the evidence admitted ain’t trying I want everybody for it! But that Dubria was established transcript tape impression Klapper’s saying. nobody If [*] [*] as to how she you you not introduced referred to other something good tell that your to during the tell that that’s [*] [*] I want transcript and thus was to admit that death. This think about you Detar sim- that other heard that’s not story is. an inter- is, you guilty. story died. that it’s in- in- to at to were excised from view Although only the interview terview was interview was entered presence that Dubria played tape, the None chloroform counsel’s Dubria: Um. Detar: There’s Dubria: The State Detar: Yeah. Let Detar: She Detar: Dubria: Um. tion, ing. point overdose of chloroform. It’s not cation that actually of Detar’s to the of chloroform objection, a They did all the tests Sam! transcript was not edited There were absolutely Okаy. proffered given had just dealt with the jury. a small Klapper’s [*] died of points at inflammatory its a lot of other you. no the chloroform intoxi- to the me tell case-in-chief zip. Later, over [*] transcript of the in- [sic] explanation portion the unedited chloroform tape in Klapper’s you. body, jury. She no other causa- into evidence. you something. [*] before it presence things died of an statements Like the Dubria’s for the poison- tape at all. entire inter- body. show that majority concludes you I someone said Okay.
Detar: If told death, entirety,” in its for her “viewed you responsible were merely show “unremarkable you say? what would because, according to the ma- interview” nothing Detective jority, “[t]here was people. to a Detar: Talked lot suggested evi- Detar’s statements Um-hum. Dubria: of the case were dence оr theories a, much, we’ve deter- pretty Detar: And Maj. Op. at at See presented trial.” for her responsible aré mined interview, In the De- disagree. death. suggest that other evi- tective Detar did at presented that was not dence existed any access Detar: You don’t have falsely Specifically, Detar stated trial. chloroform? claimed that other individuals Klapper’s responsible Dubria was Dubria: No. death, that all experts added). of the state’s jury.” did Id. (emphasis *12 I see no “all tests” the and determined that Klap- valid basis distinguishing Harber from per positively poi- died from chloroform present the In case. jury both cases the soning, and that chloroform was “all over read and relied on extrinsic evidence that hospital” the where Dubria worked. consisted of an investigating opin- officer’s Thus, disagree I with majority’s the char- ion that the defendant guilty. Conse- acterization of the interview as “unre- quently, I believe that admitting tape the markable.” and transcript of pre-arrest the interview Additionally, the introduction of tape the in this case was “presumptively prejudi- transcript of pre-arrest the interview cial.” particularly is troubling prose- because the Given the highly inflammatory content against cution’s evidence Dubria was far of tape the and transcript, and that the overwhelming. By from entering into evi- statements were made by an investigating dence the and transcript, prosecu- the officer, I conclude that the admission of tion present was able to jury the with the fatally evidence “so infected pro- the theory Detective Detar’s why of how and ceedings as to render fundamentally them thought he that Dubria killed Klapper. unfair.”- Jammal v. Van de Kamp, 926 long by narratives Detective Detar (9th Cir.1991). F.2d The trial only served to inform jury the of Detar’s judge give did the jury cautionary instruc- otherwise opinion inadmissible that he had But, tions. light of extremely the preju- no doubt that Klapper’s Dubria had caused dicial statements, nature of Detar’s death, as well and that no one—not the or as the fact that jury of the inter- believe Dubria’s version of —would events. It is view was given unrealistic to also later jury, believe that the see prejudicial such Hernandez, evidence did not impact United States v. jury’s ability evaluate, fairly Cir.1994) juries (noting may objectively, the against evidence Dubria. put undue emphasis particular testimo- ny provided if
Moreover,
transcripts),
I
it
cannot
significant
is also
that the
statements,
conclude
inflammatory
which
instructions cured the
jury
read,
heard and
were
by
impact
made
of
Detective
Detar’s statement on the fair-
Detar, an investigating officer in the case.
trial,
ness of Diibria’s
see United States v.
repeatedly
We have
acknowledged the in-
4/75,
Cir.1988)
Gillespie, 852 F.2d
danger
herent
in admitting opinion testi-
(finding under the circumstances that “the
mony of law enforcement officers because
trial court’s
curative instruction to recognize
we
that such testimony “carries was not sufficient to obviate
preju-
an aura
special reliability
of.
and trustwor-
dice.”).
Gutierrez,
thiness.” United
States
Additionally,
contrast to
majority
(9th Cir.1993)
F.2d
(quoting Unit-
opinion, I believe that Dubria’s ineffective
ed States v. Espinosa, 827 F.2d
assistance of counsel claim has merit.
(9th Cir.1987)). Indeed, in United States
Dubria’s ineffective assistance of counsel
Harber,
(9th Cir.1995),
you’ve ever encountered.
to tell
going
I’m not
A
ing
worse than that.
would have been different.
reason-
imagine some of the
you. You can
probability
probability
able
is a
sufficient
really
he
is.
you
I
tell
things would
to undermine confidence
the outcome.”
tell,
because
know.
I’m not
Strickland,
694, 104
466 U.S. at
S.Ct.
your
hearts what else.
You know
Although
per-
deficient
Dubria’s counsel’s
may
alone
not have altered the
assistance of
formance
To establish ineffective
counsel,
trial,
must demonstrate that his
outcome of Dubria’s
conclude
*13
deficient,
object
failure to
was
counsel’s
prejudice
of the
impact
the cumulative
performance preju-
the deficient
by
from
harm and that harm caused
v.
defense. See Strickland
diced Dubria’s
unredacted
the admission of the
668, 687, 104
Washington, 466 U.S.
S.Ct.
interview,
pre-arrest
of Dubria’s
(1984).
2052,
Clearly,
when Molina, 934 F.2d
United States (9th Cir.1991) may not (prosecutor
express guilt his of the defendant’s credibility gov- in the
or his belief witnesses). And the prosecutor
ernment’s disregarded obligation his “to avoid im- HOSPITALS, INC., In re TLC insinuations, proper suggestions, espe- corporation, a California knowledge,” cially personal assertions of Debtor. Edwards, United States v. (9th Cir.1998), the jury when he told Sims, Plaintiff-Appellant, Charles that Dubria: “is a lot worse than [the I’m biggest you’ve liar ever encountered]. you. imagine You can tell Department of Health United States things I would some of the tell Services, and Human Defendant- certainly no tacti- really he is.” There was Appellee. cal advantage gained to be No. 98-16327. allowing рrosecutor to make such im- Therefore, proper comments. I would find Appeals, United States Court of object counsel’s failure to Dubria’s Ninth Circuit. objective closing argument fell below the representation. standard of reasonable Argued Sept. Submitted prej- Whether the ineffective assistance Sept. Filed ques- a closer udiced Dubria’s defense is prejudice, tion. To demonstrate
“must show that there is a reasonable
probability unpro- but for counsel’s disagree majority’s in clari- 1. I conclusion from the defense would resulted prosecutor referring simply that the jury. fication for the The statement is cer- story piece he unclear, Dubria’s when stated “this tainly person and a reasonable could Nonetheless, garbage.” prosecutor if the prosecutor calling that the Dub- conclude referring story indeed been to Dubria’s when piece garbage.” ria "a piece garbage,” objection he said "this