R. Hurd v. Terhune
| Decision Date | 23 August 2010 |
| Docket Number | No. 08-55162.,08-55162. |
| Citation | 619 F.3d 1080 |
| Parties | Dale R. HURD, Petitioner-Appellant, v. C.A. TERHUNE; Attorney General of the State of California, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
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Philip M. Brooks, Berkeley, CA, for the petitioner-appellant.
Blythe J. Leszkay, 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-99-11311-RSWL.
Before HARRY PREGERSON, ROBERT R. BEEZER and DAVID R. THOMPSON, Circuit Judges.
Dale R. Hurd petitions for a writ of habeas corpus following his first-degree murder conviction in California state court and resulting life sentence without the possibility of parole. At trial, the state court allowed the prosecution to present Hurd's refusal to reenact the shooting of his wife during police interrogation as affirmative evidence of his guilt. The California Court of Appeal affirmed Hurd's conviction and held that the admission as evidence of Hurd's refusal to perform a reenactment was not in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Hurd petitioned for a writ of habeas corpus in the United States District Court for the Central District of California. The district court denied Hurd's petition, and Hurd timely appealed. Because the California courts' application of Miranda and Doyle was unreasonable, we reverse the decision of the district court and direct that a writ of habeas corpus issue.
On March 3, 1995, Hurd was convicted of the first degree murder of his wife, Beatrice (“Bea”), following a second trial by jury. Hurd's first trial resulted in a hung jury and a mistrial. The jury in Hurd's second trial found that Hurd carried out the murder of his wife for financial gain, a special circumstance making Hurd eligible for a sentence of death or life without the possibility of parole under section 190.2 of the California Penal Code. The jury also found that Hurd used a firearm in the commission of a felony, adding a mandatory consecutive sentence of up to ten years under section 12022.5 of the California Penal Code. Based on these findings, the trial court sentenced Hurd to a term of life imprisonment without the possibility of parole, plus a consecutive term of four years.
Hurd appealed his conviction to the California Court of Appeal, which affirmed the trial court. Hurd petitioned the Supreme Court of California and the Supreme Court of the United States for review. Both courts denied his petitions. On October 28, 1999, Hurd petitioned for a writ of habeas corpus in the United States District Court for the Central District of California. On November 20, 2007, the district court denied that petition. Hurd appeals.
Hurd and Bea had been married for eight years at the time of her death in April 1993. In March 1993, Bea separated from Hurd and sought the counsel of an attorney. Bea's attorney estimated that Hurd would owe her between $2,800 and $3,300 per month in alimony upon their divorce. At that time, Hurd earned $8,593 per month. On April 1, 1993, Bea served Hurd with divorce papers.
On April 16, 1993, Bea took their two children, aged four and eight, to Hurd's house, where the children spent the night. The next morning, Bea arrived to pick up the children and brought with her a stack of typed papers. Bea was upstairs with Hurd when their son, downstairs, heard a shot. Bea, crying, walked down the stairs before collapsing. Hurd descended the stairs behind her and took their son outside. Hurd reentered the house and called 911. An ambulance arrived and took Bea to the hospital, where she died from a single bullet wound to the chest.
Investigation showed that the shot was fired from a distance of one to six inches. The bullet entered Bea's chest from left to right, front to back, at a 35- to 40-degree downward angle. Bea's face and scalp had abrasions and bruises apparently suffered before her death.
Hurd testified that when Bea arrived at his house on the day of the incident, Bea expressed concern over possible rioting following the pending verdict in the second Rodney King trial. 1 Hurd told Bea that he would let her borrow his firearm and show her how to operate it. Standing in front of Bea, Hurd attempted, with difficulty, to load a round into the firearm. Hurd testified that as he lowered the firearm to inspect it, it accidentally discharged.
Police arrived at Hurd's house and found him sitting motionless near the front entrance, next to Bea. Police took Hurd into custody and informed him of his Miranda rights. Hurd expressed his willingness to talk without an attorney present, and Detective Carr began questioning him.
After Hurd recounted his version of the facts, Carr asked Hurd to submit to a polygraph examination. Carr assured Hurd that, if the polygraph showed that Hurd was being truthful, the police department would end its investigation of him. Hurd declined to undergo the polygraph exam and explained that he believed them to be unreliable. Carr replied, “I think you don't want to take one because you murdered your wife.” Carr then repeatedly suggested that Hurd take a polygraph. Hurd maintained that he would not.
Carr next asked Hurd to demonstrate how the shooting occurred. Hurd refused to reenact the shooting. Carr continued to question Hurd about the chain of events and again asked Hurd to demonstrate. When Hurd declined, Carr suggested that Hurd either take a polygraph or demonstrate what happened. Hurd refused, and Carr suggested that Hurd would go to jail for being uncooperative. Carr's supervisor, Detective Straky, entered the room and explained that the District Attorney would not think much of Hurd's refusals to cooperate.
Carr and Straky continued to ask Hurd to demonstrate how the shooting took place, and Hurd continued to refuse. The detectives suggested that a judge and jury would find his lack of cooperation unreasonable. Through the remainder of the questioning, Straky and Carr asked for a reenactment several more times, with Hurd refusing each time.
Before trial, Hurd moved to suppress statements made at his interrogation as involuntary based on the investigating detectives' multiple false promises of leniency for cooperation, false assurances, and coercive statements. Hurd argued that the voluntariness of the interrogation ended when Carr threatened to jail Hurd if he refused to submit to a polygraph examination. Hurd further argued that his repeated refusals to submit to a polygraph or reenact the shooting were invocations of his constitutional right to remain silent and that his responses to that line of questioning were therefore inadmissible. The trial court denied Hurd's motion, concluding that Hurd did not effectively invoke the protections of the Fifth Amendment because he offered responses and explanations instead of flat refusals. Throughout Hurd's trial, the prosecution referred to Hurd's refusal to reenact the shooting as affirmative evidence of his guilt. In his opening statement, the prosecutor played the tape of Hurd's interrogation and counted the number of times he refused to demonstrate the shooting. The prosecutor referred to Hurd's refusals again while presenting his case-in-chief and during his closing argument.
At trial, the prosecution also relied on testimony from several witnesses regarding Bea's prior statements detailing instances of physical abuse in her marriage. The court instructed the jury that this testimony “was admitted solely for the purpose of showing Bea Hurd's state of mind” and that it should not be considered for any other purpose. The court also instructed the jury that evidence of past crimes “may not be considered ... to prove that [Hurd] is a person of bad character or that he has a disposition to commit crimes” and that it “may be considered ... only for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged.” The court further instructed that evidence of past crimes must be weighed “in the same manner ... as all other evidence in the case.”
We review de novo a district court's denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Christian v. Frank, 595 F.3d 1076, 1080 (9th Cir.2010). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we grant a petition if the “last reasoned” state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or 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). When evaluating the state court's application of federal law, circuit precedent is “persuasive authority.” Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.2000).
A state court decision is contrary to federal law if it “applies a rule that contradicts the governing law as set forth” by the Supreme Court or reaches a different result on a “materially indistinguishable” set of facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court unreasonably applies federal law when it “correctly identifies the governing legal principle from reme Court decisions but unreasonably applies it to the facts” of its case. Bell, 535 U.S. at 694, 122 S.Ct. 1843.
Hurd argues that he is entitled to habeas relief on three separate bases. We first address Hurd's argument that the state trial court improperly admitted as evidence his refusal to reenact the shooting in violation of his Fifth...
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