Griffin v. Harrington

• Decision Date: 16 August 2013
• Docket Number: No. 12–57162.,12–57162.
• Citation: 727 F.3d 940
• Parties: Prentiss GRIFFIN, Petitioner–Appellee, v. Kelly HARRINGTON, Warden, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

727 F.3d 940

Prentiss GRIFFIN, Petitioner–Appellee,

v.Kelly HARRINGTON, Warden, Respondent–Appellant.

No. 12–57162.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2013.

Filed Aug. 16, 2013.

Shira B. Seigle (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason C. Tran, Deputy Attorney General, Los Angeles, CA, for Respondent–Appellant.

Marilee Marshall (argued), Marilee Marshall & Associates, Los Angeles, CA, for Petitioner–Appellee.

Appeal from the United States District Court for the Central District of California, Valerie Baker Fairbank, District Judge, Presiding. D.C. No. 2:10–cv–08753–VBF–SP.

Before: STEPHEN S. TROTT,

CARLOS F. LUCERO,^* and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Petitioner Prentiss Griffin, a member of the Grape Street Crips gang, was convicted by jury in the Superior Court of Los Angeles County of the first degree murder of Dwin Brooks, a member of a rival gang, the Bounty Hunter Bloods. The jury acquitted him of shooting Waylon Walton, who was shot but not killed during the same encounter. His sentence was 90 years to life. On direct appeal, the California Court of Appeal affirmed his conviction, reduced his sentence to 80 years to life, and subsequently denied his petition for a writ of habeas corpus. The California Supreme Court denied review.

Griffin then filed a petition for a writ of habeas corpus in the Central District of California pursuant to 28 U.S.C. § 2254. The district court granted the petition, concluding that Griffin had been the victim of ineffective assistance of trial counsel as guaranteed by the Sixth Amendment; and that California's Court of Appeal's application of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard was unreasonable. 28 U.S.C. § 2254(d)(1). The district court further concluded that the Court of Appeal's factual findings in support of its decision were unreasonable under § 2254(d)(2). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

IFACTS AND CIRCUMSTANCES

On March 5, 2005, someone shot and killed Dwin Brooks during a confrontation in Los Angeles, California, involving rival street gangs during which at least forty bullets were fired from four different firearms. Some nine months later, Fred Wilberger, then a federal prisoner, told a Los Angeles police detective that the shooter was Prentiss Griffin. The detective recorded Wilberger's statement. Largely on the basis of that statement, Griffin was arrested and charged with Brooks's murder. Wilberger was the only person who claimed to be able to identify Griffin as the person who shot Brooks.

By the time of Griffin's trial, however, Wilberger had decided to change his story. Before the prosecution called him as a witness, Griffin's attorney, Simon Aval, was aware of Wilberger's about-face. Aval also knew that given Wilberger's decision to repudiate his prior inculpatory statement, the jury would most likely hear the recording of it for the truth of the matter asserted pursuant to Cal. Evid.Code §§ 770, 785, and 1235.

As predicted, the trouble began the moment Wilberger took the stand. Here, we borrow from Magistrate Judge Pym's thorough Report and Recommendation to the district court.

The clerk told Wilberger to raise his right hand and read him the oath. Silence apparently followed because the clerk then said, “I need a response, an answer.” Wilberger said, “No.” The trial judge thereafter removed the jury from the courtroom and addressed the witness. The following dialogue ensued:

Trial Judge: You have been told to swear to tell the truth. Do you understand that?

Wilberger: Yes, Ma'am.

Trial Judge: How old are you?

Wilberger: 24.

Trial Judge: So you're old enough to know what the truth is, right?

Wilberger: Yes, Ma'am.

Trial Judge: All right. We're going to proceed with your testimony. Do you understand that?

Wilberger: Yes, Ma'am.

The trial judge then instructed the prosecutor to take Wilberger as a hostile witness and proceed with questioning.

Direct examination commenced. Petitioner's trial counsel did not object prior to the direct examination of Wilberger. On direct examination by the prosecutor, Wilberger answered every question, but denied all knowledge of petitioner and the shooting, and also denied having ever identified petitioner to the police. Petitioner's counsel cross-examined Wilberger with just two questions: had he ever seen petitioner before, and had he seen petitioner on March 5, 2005. Wilberger answered “No” to both questions and was excused as a witness.

The following morning before the jury was brought out, the trial court discussed with counsel the recording of the conversation between Wilberger and Detective Weber, the police detective who conducted the interview where Wilberger identified petitioner as the shooter, ordering that a portion of it be deleted. The prosecutor said she planned on playing the tape by recalling Detective Weber the following morning, since she needed time to edit the tape and Detective Weber was already ready to take the stand that morning.

The examination of Detective Weber commenced. Without explanation for the change in schedule, the prosecutor asked the detective about his interview with Wilberger to begin laying the foundation to introduce the tape. Cal. Evid.Code [ ] § 1235. At this point, petitioner's counsel asked to go on record at sidebar. Petitioner's counsel said, “I just want to object for the record for the tape coming in because Mr. Wilberger didn't give us any sworn testimony yesterday.” The prosecutor was flummoxed by the objection, saying she did not know the law in this area and that the objection was not something she expected from counsel. The prosecutor asked first if she could take a recess to research the law on point and second whether Mr. Wilberger could be recalled to re-administer the oath to him. The trial court denied the request to recall Mr. Wilberger, as the trial court was skeptical that Wilberger would then take the oath when he previously refused, and stated it would not recall Wilberger unless the prosecutor knew he would take the oath.

Following a recess, the prosecutor argued and the trial court agreed that petitioner's counsel had waived the objection by not objecting immediately and by conducting a cross examination. As part of this discussion, both the trial court and the prosecutor pointed out that petitioner's counsel made no previous objections to the oath-taking, and petitioner's counsel did not dispute this, although he did dispute the legal conclusion that this amounted to a waiver of the objection. Evidence of Wilberger's statement to the police was then put in evidence. In that taped statement, Wilberger told detectives that he saw the shooter, he thought the shooter's name was “Prentiss,” and he believed the shooter could be either of two persons in a poor-quality photo six pack he was shown.

IIGRIFFIN'S DIRECT APPEAL

Prentiss was convicted. On appeal, the California Court of Appeal affirmed his conviction. The court said,

Every witness is required to take an oath, or affirm, that he will testify truthfully. (Evid.Code[ ] § 710). It is not unconstitutional to receive unsworn testimony in evidence, but if a timely objection is made on that ground, the testimony is not evidence within the meaning of the Evidence Code. (In re Heather H. (1988), 200 Cal.App.3d 91, 95–96, 246 Cal.Rptr. 38.)

Focusing on Aval's failure timely to object to Wilberger's testimony, the court refused to consider Griffin's claims (1) that trial counsel's objection to Wilberger's testimony was indeed timely, and (2) that his prior inculpatory statement to the police was therefore inadmissable. The court said, “Because defense counsel did not object to Wilberger's testimony due to the oath taking issue but instead went on to cross-examine him, any objection to Wilberger's testimony was waived.... Because Wilberger's unsworn testimony became evidence due to this waiver, it necessarily follows that impeachment of that evidence was allowable.”

The court left for another day Griffin's Strickland attack on the performance of his trial counsel.

IIIGRIFFIN'S STATE HABEAS PETITION

When that day came, the Court of Appeal denied Griffin's state petition, albeit in a divided opinion. The majority concluded that Aval “had a credible tactical reason for failing to object” to Wilberger's testimony. The majority determined that “Aval knew he was waiving his objection but elected to cross-examine Wilberger in order to obtain the advantages or avoid the ill effects described in his declaration.” The majority also said, “We must accord Aval's tactical decision great deference in order to avoid second-guessing counsel's tactics and chilling vigorous advocacy by tempting defense counsel to defend themselves rather than their clients during trial.” The majority further speculated that Aval must have believed that “a well-timed objection and motion to strike would have ultimately resulted in Wilberger stating the final words necessary to constitute the taking of the oath.”

In dissent, Justice Flier saw Aval's failure to object not as a reasonable tactical decision, “but an error,” a conclusion Justice Flier believed to be “objectively supported by the record.” She also said,

Aval knew that Wilberger was a reluctant witness and that he was likely to recant his statements to the police. There is no doubt that Aval knew that the prosecution was ready for this and could impeach Wilberger with a prior inconsistent statement. Given these hard facts, if there was a lawful way of preventing Wilberger from testifying, defense counsel had to act to accomplish that objective. An appropriate, lawful and unimpeachably correct objection to Wilberger's testimony was his refusal...