Colley v. Sumner

• Decision Date: 12 March 1986
• Docket Number: No. 85-1588,85-1588
• Citation: 784 F.2d 984
• Parties: 20 Fed. R. Evid. Serv. 65 Michael Eugene COLLEY, Petitioner-Appellant, v. George SUMNER, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 984

784 F.2d 984

20 Fed. R. Evid. Serv. 65

Michael Eugene COLLEY, Petitioner-Appellant, v. George SUMNER, et al., Respondents-Appellees.

No. 85-1588.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 12, 1985.

Decided March 12, 1986.

N. Patrick Flanagan, III, Asst. Federal Public Defender, Reno, Nev., for petitioner-appellant.

David F. Sarnowski, Carson City, Nev., for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before SNEED, KENNEDY and BOOCHEVER, Circuit Judges.

SNEED, Circuit Judge:

This is an appeal from the district court's denial of Michael Colley's petition for a writ of habeas corpus. Colley is presently incarcerated in the Nevada State Prison, where he is serving a twenty-year term of imprisonment and a consecutive life term with the possibility of parole. The district court entered a final judgment on December 24, 1984, and this court has jurisdiction over the appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I. BACKGROUND

We are not the first court to confront events of the night of March 25, 1979, in which appellant was involved. On that night, Kristine Jensen was admitted to the emergency room at Carson-Tahoe Hospital. She suffered from multiple stab wounds that had caused a loss of one-third of her total blood volume and required prompt surgery to prevent death. When one of the nurses asked Jensen if she knew who her assailant had been, she identified as her attacker the man who had brought her to the emergency room--Michael Colley, the appellant.

He was prosecuted and his first trial ended in a mistrial. In November 1979, Colley was retried in Nevada state court for the crimes of attempted murder and battery with intent to commit sexual assault resulting in substantial bodily harm. At trial, Jensen's version of the events that occurred on the evening of March 25, 1979, was as follows.

Colley, a casual acquaintance of Jensen, stopped at her home early in the evening and invited her to go out driving with him. Because she wanted to practice on a manual shift car, she agreed. After stopping the car briefly so that Ms. Jensen could talk to two friends she had spotted on the street, Colley drove out of town a couple of miles on a dirt road. Suddenly, he turned the car off the path, grabbed Ms. Jensen's neck and began choking her, and said, "I'm going to kill you." After a struggle, Jensen fell out of the car. Colley got out, and came around to where she lay. He put his hand on her neck and said, "Don't scream or I won't do nothing [sic]."

After Jensen agreed not to make noise, Colley began apologizing, saying he didn't know what he was doing. She steadily moved away from him, but he came after her. In the ensuing struggle he threw her to the ground; she tried to get up, but he started choking her again. He said, "You are so pretty." When she had a chance, she ran into the bushes. He chased her, pushed her into the dirt, and repeatedly kicked her. She threw sand in his face, after which he retreated to his car. He returned with a knife and began stabbing her and taking off her clothes. After leaving again for a few minutes, Colley came back and said, "We have got to get you to a hospital." He asked her, "Who did this?" and in order not to enrage him she said, "Steve Walker." See Reporter's Trial Transcript on Appeal at 194-221 [hereinafter cited as R.T.] (testimony of Christine Jensen).

Hospital personnel took up the story at that point and testified that Ms. Jensen and Colley arrived at Carson-Tahoe Hospital sometime between 9:30 and 10:00 that evening. Apparently, Colley first came in alone and said, "I have someone out in the car with multiple stab wounds." He had blood under his fingernails, dirt around his eyes, and twigs or pieces of tumbleweed in his hair and sweater; his face had been scratched. When the hospital personnel brought Jensen in from the car, she was naked from the waist down. While in the waiting room, Colley acted in a violent manner: he punched the doors, threw off the clerk's hand when she grabbed his arm, and kicked over a standing ashtray. See id. at 307-15 (testimony of Theresa Laird).

After Ms. Jensen's relatives--not the police--located the scene of the crime on March 26, the police searched at the site and uncovered the victim's clothing, some blood stains, and a large pocket knife.

Colley's version of the events of March 25, 1979, contradicted Ms. Jensen's. In his On cross-examination, the prosecution attacked Colley's testimony regarding his whereabouts at the time of the attack on Ms. Jensen. As required by state statute, Nev.Rev.Stat. Sec. 174.087, the defense had earlier filed a pre-trial Notice of Alibi, naming Colley's friends who allegedly had seen him on March 17, 1979, and March 25, 1979. Although the list included his fiancee, Debra Pena, neither the prosecution nor the defense called her to the stand at trial. Nonetheless, Colley mentioned her in connection with his alibi, and during cross-examination the prosecutor asked, "Where is she now?" See R.T. at 584. After Colley replied that she was in Chicago, defense counsel objected to this line of inquiry on grounds of irrelevance. When asked by the court to establish the relevance of the questioning, the prosecution replied, "I believe Debra Pena was originally named as one of the alibi witnesses." Id. at 585.

                testimony he recounted an evening spent with friends, including his fiancee, Debra Pena.  He testified that on his way home from visiting with his friends, he saw a woman staggering along the road (at a place two miles from where the crime occurred).  He noticed that she was hurt and he pulled over.  Recognizing her as he approached, he laid his hand on her shoulder and began to speak.  She screamed and attacked him, scratching him and pulling his hair.  He stopped her and told her he was going to take her to the hospital.  She resisted at first, but finally agreed.  See id. at 572-79 (testimony of Michael Colley).  On the way to the hospital, he asked her who her assailant had been.  She replied, "Steve."    Id. at 579
                

At this point defense counsel objected and, after the jury was excused, a motion for mistrial was made. See id. at 585-86. Defense counsel argued that a Notice of Alibi cannot be used by the prosecution in this manner. He contended that the state had, in effect, shifted the burden of proof of innocence to the defendant by requiring him to explain why Ms. Pena had not been called to the stand. See id. at 586-90. The court disagreed and denied the motion for a mistrial. In its view, the introduction of direct testimony concerning Ms. Pena by the defense had rendered her availability as a witness a legitimate topic of inquiry on cross-examination; nor did the court find prejudicial the prosecution's reference to Pena as a potential alibi witness.

The State in rebuttal called Evelena Hohl to the witness stand. Over the defense's objections, she testified that Colley had sexually assaulted her just eight days before his alleged attack on Jensen and at almost the same location. Hohl's testimony described a modus operandi similar in other respects to the one alleged by Jensen. According to Hohl, she saw Colley in a parking lot and asked him for a ride home, to which he assented. When she got home, she filled up an empty beer bottle with whiskey and then asked Colley to take her back to where he had picked her up. He again agreed, but said he needed to stop by his brother's house first. He drove out of the city for several miles, stopped the car, and turned off the lights. Grabbing Hohl by the hair, he told her to take her clothes off; upon her refusal, he walked around to her side of the car and began to choke her. When she saw that she could neither prevail in a struggle nor dissuade him by pretending unconsciousness, she ceased struggling and allowed him to rape her. On the way home afterward, he kept saying, "Why did I do this? How come you didn't stop me?" He declared his intention to commit suicide and showed Hohl the knife he claimed he was going to use to take his life. See id. at 627-32 (testimony of Evelena Hohl).

Prior to trial, the defense filed a motion in limine to exclude evidence of other crimes committed by Colley. Defense counsel argued that Hohl's testimony was not necessary to prove intent if the jury believed Colley committed the alleged acts against Ms. Jensen. The prosecution responded by pointing out that intent was placed in issue by Colley's plea of not guilty and that the alleged prior acts were probative of identity due to their similarity in time and manner. Agreeing with the Also before trial, the defense filed a motion to compel both Jensen and Hohl to undergo psychiatric examinations establishing their competency to testify. Defense counsel argued that peculiar circumstances--a history of psychological problems in Hohl's case and, evidently, the traumatic nature of the attack in Jensen's--cast doubt on the reliability of their testimony. See Transcript of Proceedings at Arraignment at 23-26. The court denied the motion. It concluded that Nevada law did not compel such examinations, and it stated that it would not order them absent substantial evidence of their necessity.

prosecution, the court denied the motion to exclude.

Following presentation of the evidence and counsel's closing arguments, the jury was directed to determine in a unitary proceeding both Colley's innocence or guilt under the attempted murder and aggravated battery charges and the sentence to be meted out if it found Colley guilty of the aggravated battery charge. Under Nevada law, the jury, after such a finding, must mete out either life imprisonment with a chance of parole or life imprisonment with no chance of parole. After a substantial period of deliberation, the jury returned a guilty verdict on both charges and sentenced Colley to life imprisonment with a chance of parole on the...