Babb v. Lozowsky
| Decision Date | 11 January 2013 |
| Docket Number | No. 11–16784.,11–16784. |
| Citation | 704 F.3d 1246 |
| Parties | Latisha Marie BABB, Petitioner–Appellee, v. Jennifer LOZOWSKY and E.K. McDaniel, Respondents–Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Lisa A. Rasmussen, Las Vegas, NV, for Petitioner–Appellee.
Adam L. Woodrum and Victor–Hugo Schulze, II, Office of the Nevada Attorney General, Las Vegas, NV, for Respondent–Appellant.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. 2:05–cv–00061–PMP–RJJ.
Before: A. WALLACE TASHIMA, RICHARD R. CLIFTON, and MARY H. MURGUIA, Circuit Judges.
Appellants–Respondents Jennifer Lozowsky, the Warden, and the Nevada Attorney General (“the State”) appeal the district court's grant of a writ of habeas corpus to Appellee–Petitioner Latisha M. Babb pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Babb was convicted of first degree murder with a deadly weapon, and robbery with a deadly weapon, by a jury in Nevada state court for the murder of cab driver John Castro in connection with a robbery. The district court granted habeas relief, concluding that one of the instructions for first degree murder given in Babb's case, known as the Kazalyn instruction, violated her due process rights and that the improper instruction did not constitute harmless error.
We REVERSE.
On October 26, 1997, cab driver John Castro was found shot in the head in Washoe County, Nevada. He ultimately died from the wound.
While investigating another shooting, police obtained warrants to search the home and vehicle of Babb's codefendant and live-in boyfriend, Shawn Harte. At the time the police stopped Harte in his car, Babb was with him. The police found a .22 caliber pistol, a spotlight, a hand-held radio, a magazine, and ammunition in the car. A shell casing had been found inside the victim's taxi cab. Forensic testing revealed that the shell casing had been fired from the gun found in Harte's car.
Information obtained from Harte led police to question Babb's other co-defendant, Weston Sirex (“Sirex”), who worked at a Reno taxi company. Sirex told the investigators:
that it started out as a robbery, that they were northbound on Cold Springs Road, that he [Sirex] was looking out the window, that he [Sirex] turned around just in time to hear a shot and see the flash of a weapon, and that it wasn't supposed to happen that way, or that he [Sirex] didn't know it was going to happen that way.
Sirex also admitted to being party to discussions that a robbery and a killing would take place, although he said that the cab driver was not to be killed, unless absolutely necessary. Babb, Harte, and Sirex were tried together, and Sirex's statements to police were read to the jury during the trial.
Harte also eventually made statements to police, wherein he admitted to shooting Castro in the head. In addition, he confessed to being the shooter in a letter to a woman he had dated. He wrote:
So this cab driver is just spurting off his mouth about how he got ‘ripped off’ $1000 cash earlier, blah blah blah. Now what could that all have been about? Drugs.... It's because of people like him that I don't have a son or daughter....
I chambered a round.... Point blank. An inch above the ear and two behind. Boom. That simple. That easy. No remorse. Honestly.
I jumped up and let the cab coast right in front of a drug dealer's house in Cold Springs. Perfect. Windows were up, so it was noiseless.... We left. Went to Circus Circus. Played some games, gambled—continued our good time. Went to Taco Bell. And ate. Went home. Simple. Nothing to it. Just another chore, like taking out the trash, except easier. And funner.
The letter and Harte's statements to the police were also read to the jury.
Harte and Sirex did not testify at trial, and they did not mention Babb's involvement in their statements to the police. When Babb was interviewed by a newspaper reporter after her arrest, however, she made the following statements to the reporter admitting her involvement in the robbery:
I was the driver.
It was maybe a 15–minute plan. We weren't out to get this specific person.
I jokingly said, So we did.
I didn't hear the gunshot. I didn't even know he was shot until I pulled up alongside the car and heard him [the driver] breathing.
The cab stopped in Cold Springs, and I pulled in front of it.
I looked and saw him in the front seat with his head rolled back.
When I thought about it later, I kept hearing his breath.
I thought maybe someone else would rob a cab and they'd think he did it. I was broke and I had just lost my job. I needed the money to pay my bills. I have a lot of debt. For the money we got, that man's life wasn't worth it.
How do you tell people you were involved in a murder? How will I tell my mom?
I acknowledge this happened and I feel bad. I have nothing to hide. What's done is done. This is forever, nobody will forget. You see it on TV and you know that you did that. I didn't want any of this.
Babb also did not testify at trial, but her statements to the reporter were read to the jury.
Babb was charged with robbing and murdering John Castro. The jury was given the following instruction for first degree murder:
As it applies to this case Murder of the First Degree is:
a) Murder which is any kind of willful, deliberate and premeditated killing: or
b) Murder which is committed in the perpetration of a Robbery. Murder in the Second Degree is all other kinds of Murder.
Instruction 18 (emphases added).
The jury instructions also included the following instruction for first degree murder, sometimes referred to as the Kazalyn instruction, named for the Nevada Supreme Court decision which approved it, Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992):
the unlawful killing must be accompanied with deliberate and clear intent to take life in order to constitute Murder of the First Degree. The intent to kill must be the result of deliberate premeditation.
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder.Instruction 23 (emphasis added). The judge also instructed the jury to apply this definition of first degree murder “[u]nless felony murder applies.”
The jury was given the following instruction for felony murder:
Whenever death occurs during the perpetration of certain felonies, including Robbery, NRS 200.030 defines this as Murder in the First Degree. This is known as the “felony murder rule.”
Therefore, an unlawful killing of a human being, whether intentional, unintentional or accidental, which is committed in the perpetration of a Robbery, is Murder in the First Degree if there was in the mind of the defendants the specific intent to commit the crime of Robbery.
The specific intent to commit Robbery must be proven by the state beyond a reasonable doubt.
Instruction 20.1
The jury found Babb guilty of robbery with a deadly weapon and first degree murder with a deadly weapon. This was a general verdict, however, and did not specify under which theory the jury found Babb guilty of first degree murder. Babb was sentenced to two consecutive life sentences without parole for the murder conviction.2 She was also sentenced to two consecutive terms of 72–180 months in prison for the robbery conviction, running concurrently with the murder sentence.
The Nevada Supreme Court affirmed Babb's conviction and sentence on direct appeal. On May 27, 2009, Babb filed a Second Amended Petition for Writ of Habeas Corpus in the United States District Court, District of Nevada. Ground twelve of the petition alleged that Babb was denied her Fifth and Fourteenth Amendment rights to due process and trial by an impartial jury because the state trial court failed to instruct the jury properly regarding premeditation and deliberation. In the last reasoned decision by the state court, the Nevada Supreme Court held:
Appellant[ ] also challenge[s] the giving of Instruction 23, the “Kazalyn instruction,” which was ultimately criticized in Byford v. State. Appellant [ ] argue[s] that the instruction improperly merges the concepts of premeditation and deliberation and, therefore, reduces the State's burden of proof in violation of due process.... As we have recently held, the giving of the Kazalyn instruction in cases like this one, which preceded the Byford decision, constitutes neither plain nor constitutional error.
Babb v. State, No. 34195, 117 Nev. 1122, 105 P.3d 753 (Nev. July 10, 2001) (footnotes omitted).
The district court granted relief on Babb's Fourteenth Amendment claim on the basis that: 1) the Ninth Circuit held in Polk v. Sandoval, 503 F.3d 903 (9th Cir.2007), that the Kazalyn instruction was unconstitutional because it blurred the elements of premeditation and deliberation, thereby relieving the State of the burden of proving each element of a crime, as required by Supreme Court precedent; and 2) due process required that Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), which narrowed the category of cases that could be considered murder, be applied to Babb, whose conviction was not final when Byford was decided.
The district court also conducted a harmless error analysis. The court determined that, because the jury was presented with multiple theories of first degree murder and delivered a general verdict, the impact of the improper instruction was unclear. Because the...
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