Pollard v. White

• Decision Date: 25 July 1997
• Docket Number: No. 95-15772,95-15772
• Citation: 119 F.3d 1430
• Parties: 97 Cal. Daily Op. Serv. 5906, 97 Daily Journal D.A.R. 9498 Jerry Emanuel POLLARD, Petitioner-Appellant, v. Theo WHITE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1430

119 F.3d 1430

97 Cal. Daily Op. Serv. 5906, 97 Daily Journal

D.A.R. 9498

Jerry Emanuel POLLARD, Petitioner-Appellant, v. Theo WHITE, Warden, Respondent-Appellee.

No. 95-15772.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 20, 1997.

Decided July 25, 1997.

Matthew I. Kreeger, Morrison & Foerster, San Francisco, CA, for Petitioner-Appellant.

Daniel E. Lungren, Attorney General of California, Clifford K. Thompson, Deputy Attorney General, San Francisco, CA, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California; Fern M. Smith, District Judge, Presiding. D.C. No. CV-94-1299-FMS.

Before: NORRIS, KOZINSKI and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

Petitioner Jerry Emanuel Pollard appeals the district court's dismissal on the merits of his petition under 28 U.S.C. § 2254. He contends that the California Court of Appeal (CCA) violated his right to a jury trial by reducing his conviction from first to second-degree murder to remedy a harmful trial error, instead of ordering a new trial. He also contends that he received ineffective assistance of counsel when his attorney failed to object to the State's motion to modify the verdict on appeal.

We conclude that, even assuming that the CCA erred in reducing Pollard's conviction to second-degree murder, the error was harmless. We also conclude that Pollard's ineffective assistance argument is without merit because counsel's performance was not constitutionally deficient.

I. BACKGROUND

On February 20, 1985, Richard and Ursula Hollins drove Ms. Hollins's son, George Anderson, to the Mel-Rey Motel so Anderson could buy back a tape deck he had traded for cocaine. The Hollinses remained in the truck while Anderson went to find Moms, the person to whom he had traded the stereo. Anderson testified that, while he was looking for Moms, Pollard came to the window and loudly told him that Moms was not there and that he should go away. Moms eventually came out of one of the rooms. Anderson asked her for his tape player and Moms informed him that it was no longer in her possession. Pollard then appeared in the courtyard and yelled at Anderson to leave "because if I see you when I come back, your ass is mine." Anderson ran to the back of the motel, jumped the fence, and did not return.

Ms. Hollins testified that after Anderson left, Pollard approached their truck and asked where her son was. She responded that she did not know. Pollard then pulled a gun from his waistband, waved it back and forth, and made threatening remarks. At this point, Moms, her daughter, and another girl came to lead Pollard back to the motel.

As the Hollinses were driving away, Mr. Hollins saw an old friend, Cleophus Hegler, at the auto repair shop near the Mel-Rey. He made a U-turn and parked next to the garage. He got out to speak with Hegler Ms. Hollins remained in the truck. Several minutes later, Hegler noticed that a Thunderbird pulled up behind Hollins' truck, and a man with a gun got out and walked toward the passenger side window. Ms. Hollins testified that Pollard pointed the gun at her, and asked where his "stuff" was. When she responded that she did not know, he stated loudly that he would kill her.

Mr. Hollins decided to investigate. As he approached, Pollard told Hollins to stop walking toward him and threatened to "blow [him] away." Before Hollins could respond, Pollard shot him in the left side of the chest, killing him.

Pollard's defense at trial was that the prosecution had the wrong person. During closing argument, Pollard's attorney focused on the many inconsistencies in the testimony of Ms. Hollins, Anderson, and Hegler regarding the identity of the shooter, including what he looked like and what he wore.

The jury was instructed on the elements of first and second-degree murder, as well as voluntary manslaughter. After two and one-half days of deliberations, the jury requested that those instructions be re-read to them. The court did so shortly before lunch. After lunch, the court responded to the following jury request:

We would like to know if premeditation involves prior thought to the specific victim or prior thought to commit an act of murder in general?

Define premeditation.

Read the instructions/definitions of second-degree murder.

In response to the first question, the court instructed:

If you were to find that the defendant, with malice aforethought, and with premeditation, and with deliberation, intended to kill either the victim or any member of the victim's party, and that if he formed those mental states of mental malice aforethought, deliberation and premeditation, then if all other elements of first-degree murder are present, the crime would be first-degree murder.

I limited it to members of the victim's party because I assume you don't want to know what might be the case if he intended to kill the garage mechanic or someone across the street. But if I am wrong about that, I guess I can define it further.

The court then repeated the instructions on premeditation, deliberation, and the degrees of murder. The jury returned its verdict 16 minutes after it resumed deliberations. It found Pollard guilty of violating Cal. Pen.Code §§ 187 (first-degree murder) and 12022.5 (use of a firearm). Pollard was sentenced to 32 years to life imprisonment.

On direct appeal, Pollard contended that the trial court gave an improper instruction, which resulted in prejudicial error. The CCA reversed his conviction, because of the incorrect instruction on premeditation.

The State petitioned for rehearing, arguing that Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), did not require a reversal per se, and that the CCA should affirm the first-degree conviction. Alternatively, it contended that the conviction should be reduced to second-degree murder, pursuant to Cal. Pen.Code § 1260, ¹ rather than a new trial being granted. Pollard's attorney filed a letter response to the State's motion, arguing for the reversal of the first-degree conviction under Chapman, but not explicitly opposing the State's proposal to reduce the conviction to second-degree murder. ²

The CCA, applying the Chapman test to a second-degree conviction, concluded that "the error was harmless beyond a reasonable doubt as to a verdict of second degree murder," and modified Pollard's conviction to second-degree murder. The California Supreme Court denied Pollard's petition for review and a subsequent petition for a writ of habeas corpus.

Pollard then petitioned for habeas relief in the district court, asserting due process, right to jury trial and ineffective counsel claims. ³ The district court denied the writ. This timely appeal followed.

II. DISCUSSION

We review a district court's dismissal of a habeas corpus petition de novo and may affirm on any ground supported by the record, even if it differs from the rationale of the district court. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996); Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996).

A. Reduction to Second-Degree Murder

It is undisputed that the misdescription of the element of premeditation in this case had a harmful effect on the jury's deliberative process with regard to first-degree murder. Rather than reverse the conviction--the usual remedy for harmful error--the CCA sought to cure the constitutional error by reducing Pollard's conviction to second-degree murder.

Pollard argues that the CCA's decision violated his right to a jury trial because the jury did not necessarily find malice aforethought, an element of second-degree murder. We assume, without deciding, that Pollard is correct, and that it was error for the court to reduce his conviction. However, we conclude that Pollard has not shown that the error was harmful. A careful examination of the record establishes that any violation of his jury trial right was not injurious.

Habeas relief under § 2254 is not warranted unless the trial error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1721, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); California v. Roy, --- U.S. ----, ----, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996) (per curiam) ("Roy II "). ⁴ Trial errors that do not meet this test are considered harmless. Rice v. Wood, 77 F.3d 1138, 1144 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996).

Relying on Justice Scalia's concurrence in Roy II, Pollard argues that, in applying the Brecht standard in this context, we are precluded from independently examining the evidence; instead, we are limited to a review of the facts necessarily found by the jury. However, Pollard made this argument without the benefit of our decision in Roy III, in which we explicitly rejected Justice Scalia's approach, concluding instead that, when evaluating the harmlessness under Brecht of errors of misdescription or omission in jury instructions, we are free to engage in our own review the record. Roy III, 108 F.3d at 242. Thus, an error deemed prejudicial under Justice Scalia's concurrence in Carella v. California, 491 U.S. 263, 269, 109 S.Ct. 2419, 2422, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring), can nonetheless be harmless under Brecht. Roy III, 108 F.3d at 242.

Accordingly, in evaluating prejudice under Brecht, we can examine, in addition to the findings necessarily made by the jury, the trial record. Roy I, 81 F.3d at 871 (Wallace, J., dissenting) (finding error harmless because record established intent to further a robbery); Brecht, 507 U.S. at 637-38, 113 S.Ct. at 1721-22 (reviewing the record to find that Doyle...