Murdoch v. Castro

• Citation: 365 F.3d 699
• Decision Date: 05 April 2004
• Docket Number: No. 02-55650.,02-55650.
• Parties: Charles Franklin MURDOCH, Junior, Petitioner-Appellant, v. Roy A. CASTRO, Warden; Attorney General of the State of California, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

365 F.3d 699

Charles Franklin MURDOCH, Junior, Petitioner-Appellant, v. Roy A. CASTRO, Warden; Attorney General of the State of California, Respondents-Appellees.

No. 02-55650.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 6, 2004.

Filed April 5, 2004.

Seymour I. Amster, Law Offices of Seymour I. Amster, Van Nuys, CA, for the petitioner-appellant.

Rama R. Maline, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-99-06900-RSWL.

Before: FRIEDMAN^*, TROTT, and RAWLINSON, Circuit Judges.

TROTT, Circuit Judge:

Petitioner Charles Murdoch appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Murdoch challenges the district court's decision that the California trial court's attorney-client privilege ruling, which barred him from seeing or using a purportedly exculpatory letter written by a government witness to the witness's lawyer, did not deprive him of his constitutional right to cross-examination guaranteed by the Sixth Amendment's Confrontation Clause.

We have jurisdiction pursuant to 28 U.S.C. § 2253. We vacate the order of the district court denying Murdoch's petition, and remand the case for further proceedings consistent with this opinion.

I Standard of Review

We review the district court's denial of Murdoch's § 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), § 2254 petitions "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2) (emphasis added). Evidentiary hearings can be conducted in federal habeas proceedings if "the claim relies on ... a factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2)(A)(ii).

II Background

Petitioner Charles Murdoch is currently serving a life sentence without possibility of parole in the California penal system for convictions of first degree murder and attempted murder. The convictions are based upon a murder which occurred in 1983 while four people were committing a robbery in the Horseshoe Bar in Long Beach, California. One bystander was shot and killed; another was stabbed and wounded. After an initially fruitless investigation, the case was designated an unsolved crime. The investigation remained dormant until 1994, when the Long Beach Police Department had acquired the necessary technology to access a previously inaccessible central fingerprint database and ran the prints on file in this case. That led to the identification of Dino Dinardo as one of the robbers. The Horseshoe's bartender, Dyanne Spence, then tentatively identified Dinardo, and he was arrested in June 1994.

When first questioned by a police detective, Dinardo denied any involvement in the incident. Under pressure from the police, however, he then recanted, admitted to his involvement in the robbery, and identified Charles Murdoch, the petitioner, as one of his accomplices. The District Attorney eventually charged both Dinardo and Murdoch with murder accompanied by special circumstances, crimes carrying possible sentences of life imprisonment without parole.

Dinardo was tried by himself and convicted by a jury of first-degree murder and sentenced to twenty-five years to life. At Dinardo's sentencing, however, the sentencing judge suggested that his sentence might be subsequently reduced if he cooperated and testified against Murdoch. Dinardo took the hint and agreed to testify against Murdoch in return for a reduction of his conviction to voluntary manslaughter with a sentence of twelve years.

At Murdoch's trial, Dinardo testified that on the day of the robbery, Murdoch came by his house with an unidentified Mexican-American man Dinardo did not know and asked if Dinardo wanted to make some money by doing "a job," which he understood to mean committing a hold-up. Dinardo was to grab the money out of the till while the others, who would be armed with a gun and a knife, kept watch. Another unidentified Mexican-American man was driving the car they rode in to the bar. Murdoch entered the bar armed with a .22 caliber rifle and announced the robbery. Dinardo jumped across the bar and took two hundred dollars out of the register, at which time he heard a shot. He left through the back door and they all divided the money. Dinardo testified that he did not know anyone was hurt until he was questioned by the investigators in 1994.

In addition to Dinardo, witnesses from the bar also testified, including bartender Spence. After Murdoch's arrest in 1994, Spence identified him in a line-up, but she and others had been unable positively to identify Murdoch in photo arrays eleven years earlier, on the heels of the robbery. The record strongly suggests that without Dinardo's accomplice testimony, the prosecution's case against Murdoch was weak.

Murdoch used Dinardo's reduced sentence and lesser conviction to impeach him, but here's the rub. Prior to opening statements, the prosecutor informed the trial court and defense counsel she had discovered the existence of a letter, apparently written by Dinardo to his attorney, in which Dinardo allegedly exonerated Murdoch and claimed that his own statements to the contrary had been coerced by the police. The prosecutor claimed never to have possessed or actually seen the letter. She knew of its existence only through an interview with Dinardo. The letter, it turned out, was in the possession of Dinardo's attorney, who asserted on Dinardo's behalf that it was protected by the attorney-client privilege. The trial court took possession of the letter without allowing Murdoch's counsel or the prosecutor to see it and ruled after reading it that Dinardo was entitled to the privilege. The court did so without mention of the constitutional guarantee now at issue. After so ruling, the court returned the letter to Dinardo's attorney and ordered that he safekeep it in case of appeal.

On direct appeal, and in his petitions for state post conviction and federal habeas relief, Murdoch raised, inter alia, his claim that the trial court's failure to allow him to see or use the privileged letter violated his right to confrontation. The California Court of Appeal denied relief, and the California Supreme Court declined his petition for review. Petitioner's federal habeas petition was denied by the district court. This circuit granted a Certificate of Appealability limited to the issue of "whether appellant's federal constitutional rights were violated when the trial court ruled that prosecution witness Dinardo's letter was protected by attorney-client privilege."

III Discussion

The Sixth Amendment guarantees Murdoch the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. "[T]he right of confrontation `contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.'" Coy v. Iowa, 487 U.S. 1012, 1018-19, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (quoting Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (emphasis added). "Confrontation means more than being allowed to confront the witness physically. `Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.'" Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (holding that when a prosecution witness invoked the Fifth Amendment privilege, he "could not be cross-examined on a statement imputed to but not admitted by him," and thus defendant's Confrontation Clause rights were violated by the prosecution's exposure of the statement to the jury)).

One longstanding purpose of cross examination is to expose to the fact-finder relevant and discrediting information "revealing... ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand," motives that cast doubt on the honesty of the witness's testimony. Davis, 415 U.S. at 316, 94 S.Ct. 1105. Today, we address a situation where a substantial showing has been made that, depending upon the content of Dinardo's letter, the Confrontation Clause and attorney-client privilege are potentially at odds — a set of facts the Supreme Court has not yet examined. Its precedents, however, clearly provide that evidentiary privileges or other state laws must yield if necessary to ensure the level of cross-examination demanded by the Sixth Amendment. See Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (holding that the Kentucky court's "[s]peculation as to the effect of jurors' racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of[the government witness's] testimony"); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (holding that trial court's complete prohibition of all inquiry into...