42 F.3d 1398 (9th Cir. 1994), 94-55140, Burton v. Gunn

Docket Nº:94-55140.
Citation:42 F.3d 1398
Party Name:Jerry A. BURTON, Petitioner-Appellant, v. B.S. GUNN; Attorney General of California, Respondents-Appellees.
Case Date:November 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1398

42 F.3d 1398 (9th Cir. 1994)

Jerry A. BURTON, Petitioner-Appellant,

v.

B.S. GUNN; Attorney General of California, Respondents-Appellees.

No. 94-55140.

United States Court of Appeals, Ninth Circuit

November 18, 1994

Submitted November 14, 1994. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Central District of California, No. CV-93-00774-KN; David V. Kenyon, District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before: WALLACE, Chief Judge, GOODWIN and NORRIS, Circuit Judges.

MEMORANDUM [**]

California state prisoner Jerry A. Burton appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions of first degree murder and five counts of attempted first degree murder. Burton contends that there was insufficient evidence to support his convictions, and that the trial court committed prejudicial error by failing to properly instruct the jury regarding several aspects of his case. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Hendricks v. Zenon, 993 F.2d 664, 668 (9th Cir.1993), and affirm.

  1. Sufficiency of evidence

In evaluating whether the evidence at trial was sufficient to support a conviction, the relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wright v. West, 112 S.Ct. 2482, 2485-86 (1991); Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992), cert. denied, 114 S.Ct. 131 (1993). A reviewing court need not ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313-24 (1979).

Viewed in the light most favorable to the prosecution, the evidence showed the following: the shots that killed one victim and wounded the others came from a white-topped, red Cadillac; shots were fired from both the front and back passenger seats; as the Cadillac left the scene, someone in the car said "Bounty Hunter Blood," the name of a gang of which Burton was a member; Burton was identified as one of the men seen abandoning the car several blocks away from the murder scene; Burton's fingerprint was found on the murder weapon that police retrieved one block from the abandoned car.

Burton contends that because a witness recanted his out-of-court identification of Burton, and because the murder weapon was linked to him through a "highly ambiguous fingerprint," the evidence was constitutionally insufficient to identify him as the person who committed the offenses. These claims lack merit.

First, in an out-of-court statement made to police, Thomas Glover claimed that he saw Burton running from a red Cadillac located several blocks from the shootings. At trial however, Glover testified that he could not be sure who had jumped from the car. In response to this inconsistent statement, the detective who had interviewed Glover testified as to Glover's out-of-court statement, and stated that Glover told him that he did not want to identify Burton in court because he was concerned for the safety of his family. Because the detective's testimony was relevant and admissible as impeachment evidence pursuant to California Evidence Code § 770.1235, a rational trier of fact could find that Glover's original statement to police was credible. See Jackson, 443 U.S. at 313-24; Payne, 982 F.2d at 338.

Second, police developed a latent fingerprint matching Burton's left ring finger from an AK-47 assault rifle that they retrieved...

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