Edwards v. Lamarque

Decision Date01 February 2007
Docket NumberNo. 04-55752.,04-55752.
Citation475 F.3d 1121
PartiesKristopher C. EDWARDS, Petitioner-Appellee, v. A. LAMARQUE, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
475 F.3d 1121
Kristopher C. EDWARDS, Petitioner-Appellee,
v.
A. LAMARQUE, Warden, Respondent-Appellant.
No. 04-55752.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc October 5, 2006.
Filed February 1, 2007.

David C. Cook, Deputy Attorney General, Office of the Attorney General of the State of California, Los Angeles, CA, for the respondent-appellant.

Steven S. Lubliner, Law Offices of Steven S. Lubliner, Petaluma, CA, for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California; R. Gary Klausner, District Judge, Presiding. D.C. No. CV-01-10401-RGK.

[475 F.3d 1122]

Before SCHROEDER, Chief Circuit Judge, B. FLETCHER, PREGERSON, KOZINSKI, RYMER, KLEINFELD, HAWKINS, GRABER, FISHER, PAEZ, TALLMAN, RAWLINSON, CLIFTON, BYBEE, and BEA, Circuit Judges.

Opinion by Judge Hawkins; Concurrence by Judge Graber; Dissent by Judge Fisher

MICHAEL DALY HAWKINS, Circuit Judge.


Petitioner-appellee Kristopher C. Edwards was convicted of murder in state court and sentenced to life in prison without possibility of parole. The district court granted his § 2254 habeas petition, finding that Edwards's trial attorney had mistakenly caused Edwards to waive his marital privilege and that this constituted prejudicial error entitling Edwards to relief for ineffective assistance of counsel. The state appealed, and a divided panel of this court affirmed, Edwards v. Lamarque, 439 F.3d 504 (9th Cir.2005); we granted rehearing en banc, 455 F.3d 973 (9th Cir. 2006), and now reverse.

FACTS AND PROCEDURAL BACKGROUND

This case involves something of a murder mystery about which there is little mystery. In 1996, based on information obtained from Edwards's wife, Kemet Gaines, Edwards was arrested and charged with first degree murder, insurance fraud, and conspiracy to commit insurance fraud. Before trial, and in anticipation of Gaines's testimony, Edwards's counsel John Meyers raised the issue of marital privilege under California Evidence Code § 980. The trial court ruled that although Gaines could testify about her observations of Edwards's behavior around the time of the murder, she could not specifically testify about conversations between them because of the privilege.

At trial, the prosecution's evidence showed that, at some time in 1990, Edwards and the victim, Don Thomas, conspired to defraud Edwards's automobile insurance company. Thomas took Edwards's Mercedes Benz, stripped parts from the car, and then abandoned it. Edwards reported the car as stolen and filed an insurance claim. According to their plan, once the Mercedes was "recovered," they would then replace the parts and Edwards would pay Thomas for his participation. The scheme went awry, however, because Thomas stripped too many parts and the insurance company "totaled" the car, resulting in a smaller payout and loss of the car.

Thomas and Edwards exchanged threats and angry phone calls in the spring of 1991. In mid-July, Edwards received a check for $3,267.86 from his insurance company and deposited it in his bank. Edwards testified that on the evening of July 16, he telephoned Thomas and told him he could come either to Edwards's house or to the barbershop where Edwards worked to get his money, but that Thomas never showed up.

The next evening, Thomas's body was found in the alley behind the barbershop. Thomas had been shot with both a 9 millimeter and a .38 caliber handgun. Ballistics evidence revealed that the 9 millimeter bullets retrieved from the murder scene had been fired from a 9 millimeter weapon registered to Edwards's wife. His wife was also the registered owner of a .38 caliber handgun, but this gun was unavailable for testing at the time of Edwards's trial. However, the bullet retrieved from Thomas was consistent with being fired from the type of .38 handgun registered to Gaines. Gaines testified that she had purchased these weapons for Edwards at his

475 F.3d 1123

request because (as a convicted felon) he could not purchase them himself.

Gaines testified that on the evening Thomas was murdered, she had gone to visit her brother and returned home to find Edwards acting nervous and jittery. She also indicated he was scrubbing his hands with laundry detergent. During cross-examination, Meyers asked Gaines what reason Edwards had offered for washing his hands. The prosecutor objected and at a sidebar argued that Meyers was asking about confidential communications and that Edwards would be waiving the marital privilege if he continued. Meyers withdrew the question.

Gaines continued to testify that, the following evening, Edwards received a phone call and then grabbed a shotgun, started looking out the window, and eventually took her to a nearby motel for the night. The next day, the couple left for Florida, where they stayed a few days, and then they resettled in Michigan. Some eight months later, Gaines left Edwards and returned to Los Angeles. Located by police following her return, Gaines provided information that led to Edwards's arrest. Gaines was given immunity from prosecution in exchange for her testimony against Edwards.

Thomas's cousin, Tyrone Melton, also testified for the prosecution. After learning of Thomas's death, Melton called Edwards to accuse him of the murder. Melton testified that Edwards threatened, "I'll fuck you up too," thus implicitly admitting to killing Thomas.

In the face of this evidence, Edwards chose to take the stand and tell his side of the story. Edwards testified that he had agreed to pay Thomas $1,500 for his role in the insurance fraud, and that he had given Thomas the two handguns owned by Gaines to keep as collateral. If Thomas wanted to keep the guns, then Edwards would pay him only $1,000 instead.

Edwards claimed he was home alone at the time of the murder. He testified that one of his puppies had an accident on the carpet and that he had cleaned it up and that was why he was washing his hands with detergent when his wife returned home. Meyers asked Edwards, "Did you tell her what had happened with the dog?" Edwards answered, "About the dogs, yes."

Edwards confirmed that he had received a call from Thomas's cousin Melton, accusing Edwards of killing Thomas. According to Edwards, that same day, an anonymous caller threatened: "You and that bitch are dead. We know where you're at and we know where you live." At this point, Edwards turned off the lights, loaded a shotgun, and stood by the window. Edwards said his wife started hollering "What's going on? What's happening? What's wrong?" Meyers asked Edwards, "Did you tell her anything?" Edwards replied, "I told her `Somebody killed Don [Thomas] and they think I had something to do with it, and they just threatened to come and kill us.'"

The prosecutor objected and called for a sidebar, arguing that Edwards had waived the marital communications privilege by this testimony. Meyers argued that not every marital conversation is privileged, and also argued vigorously that even if Edwards had waived the privilege regarding the conversation on the second night about the phone call, this waiver did not extend to other conversations that had occurred earlier between Edwards and his wife. The following morning, the court revisited the issue and indicated that it believed under People v. Worthington, 38 Cal.App.3d 359, 113 Cal.Rptr. 322 (1974), Edwards no longer had an expectation of privacy in the conversations with his wife about the murder. Meyers attempted to

475 F.3d 1124

distinguish Worthington and again argued that any waiver was only with respect to a single conversation and should not be construed as a broad waiver, but the court disagreed.

Almost immediately, Meyers stated that the court's ruling raised a significant ineffective assistance of counsel claim for appeal. The court again disagreed with Meyers:

The Court: Well I don't agree. I don't think it's inadequate representation. He chose to take the stand and he wanted to tell his version. And the only way he can tell his version is to tell it as he has told it.

And I think it's a tactical decision. Maybe you didn't anticipate it was breaching the privilege, but I don't see that as —

Meyers: It wasn't a tactic. It was a mistake.

The Court: I don't see it as ineffective assistance.

The prosecution called Gaines again in rebuttal. This time she testified that Edwards had told her to visit her brother on the night of the murder, and that she thought this was "very odd" because he usually did not encourage her to spend time with her family. She also testified that when she returned home and saw him scrubbing his hands, she asked him what he had done. At first, Edwards did not reply, and then Gaines asked him whether he had killed Thomas. According to Gaines, Edwards replied, "I'll put it to you like this: you don't have to worry about hearing from him again." On cross-examination, Meyers brought out the point that the couple did have a young puppy in July 1991 and that Gaines had failed to mention Edwards's supposed confession in her first interview with the police.

At the end of the first trial, the jury convicted Edwards of the insurance fraud counts, but deadlocked on the murder charge.1 A different attorney represented Edwards in the retrial on the murder charge. Following new argument about the waiver issue, the second trial court ruled that the waiver of marital privilege would apply to the retrial and agreed with the first trial court that Meyers made a tactical decision to ask the questions that led to waiver, and that Meyers was not ineffective for doing so. The court similarly denied a midtrial motion for mistrial. This time, the jury convicted Edwards of the murder. The court also denied Edwards's post-conviction motion for a new trial, which again asserted ineffective assistance of counsel with respect to Meyers's actions that waived the privilege.

On direct appeal, Edwards argued that the trial court...

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