Edwards v. Lamarque, 04-55752.

• Decision Date: 12 December 2005
• Docket Number: No. 04-55752.,04-55752.
• Citation: 439 F.3d 504
• Parties: Kristopher C. EDWARDS, Petitioner-Appellee, v. A. LAMARQUE, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 504

439 F.3d 504

Kristopher C. EDWARDS, Petitioner-Appellee, v. A. LAMARQUE, Warden, Respondent-Appellant.

No. 04-55752.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2005.

Filed December 12, 2005.

COPYRIGHT MATERIAL OMITTED

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

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.

Before: B. FLETCHER, PAMELA A. RYMER and RAYMOND C. FISHER, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Petitioner-appellee Kristopher C. Edwards ("Edwards") was convicted of murder in state court and filed a federal habeas corpus petition alleging, among other things, ineffective assistance of counsel. The district court granted the petition, finding that trial counsel's actions leading to Edwards' waiver of his marital privilege constituted ineffective assistance of counsel and prejudiced Edwards. The state appeals; we affirm.

I. BACKGROUND

On July 17, 1991, the body of Don Thomas was found in an alley behind a barbershop where Edwards worked. Thomas had died of multiple gunshot wounds from a .38 caliber gun and 9-mm gun. Five years later, after a tip from Edwards' wife, police arrested Edwards in Detroit, and he was tried in California for the murder and for insurance fraud.

Before trial, and in anticipation of Edwards' wife Kemet Gaines ("Gaines") appearing as a witness, Edwards' counsel John Meyers ("Meyers") raised the issue of Edwards' marital privilege under California Evidence Code § 980 and the presumption of confidentiality of marital communications under California Evidence Code § 917. The trial court ruled that Gaines could testify about any discussions between them regarding the insurance fraud scheme as falling under the "future crimes" exception to the privilege, and also about her observations of Edwards' behavior on the nights in question, but not about any other conversations between them.

The following facts emerged from Edwards' and Gaines' testimony at trial, not including any information from their testimony about their conversations with one another. Edwards and Thomas conspired to defraud Edwards' automobile insurer. They stripped his car of parts, and Edwards called 911 to report that he had been carjacked; the idea was to collect $10,000 from the insurance company for the "stolen" parts, and then replace them. The scheme went awry, however, because Thomas stripped so many parts that the insurance company deemed the car "totaled," resulting in a smaller payout (and loss of the car). Thomas and Edwards exchanged threats and angry calls, including a call from Edwards to Thomas on the night of his death, July 17. Bullets recovered at the scene of the crime and from Thomas' body were from guns registered to Edwards. The night of the murder, Gaines returned home to find Edwards in a "weird" mood and scrubbing his hands with laundry detergent. The next evening, July 18, Edwards received a phone call from Thomas' cousin, threatening Edwards' and Gaines' lives. The cousin testified that Edwards threatened to "fuck [him] up too." Edwards brandished a shotgun and paced around his apartment, staring out the window, and eventually took Gaines first to a nearby motel, then to Florida and finally to Michigan, where they resettled. At trial, Edwards insisted that he had neither committed nor had anything to do with the murder, and that he had given the guns to Thomas as collateral until he was able to pay Thomas for his role in the insurance scam.

Before trial, the police questioned Gaines, who told them that she was prepared to testify that, during an exchange with Edwards on July 17 about why he was washing his hands, he had confessed to committing the murder. Meyers was aware of this proposed testimony.

Despite the trial court's ruling as to the limited nature of questioning that would be allowed regarding Edwards' and Gaines' conversations, Meyers on several occasions asked both Edwards and Gaines questions about their conversations with one another on the nights of July 17 and 18. The colloquies that followed the prosecutor's objections revealed that Meyers did not understand what sorts of questions could lead to a waiver of the privilege.¹

The waiver issue first surfaced during Meyers' cross-examination of Gaines. In an apparent attempt to fortify the defense theory that Edwards was vigorously washing his hands on the night of the murder (July 17) because the couple's dog had messed the carpet and Edwards had cleaned it up, Meyers asked Gaines what reason Edwards had offered for washing his hands on the night of July 17. The prosecutor objected that allowing Gaines to testify about Edwards' statements would waive Edwards' marital privilege. At a sidebar, Meyers asserted that the question regarding washing hands was "not a confidential communication," and that Gaines had waived her marital privilege by taking the stand — an argument wholly irrelevant to whether her testimony would waive Edwards' privilege. The court ruled that Meyers was at risk of allowing a waiver of the privilege and sustained the objection. Meyers withdrew the question.

Later, however, during direct examination of Edwards, Meyers asked Edwards if he had suggested to Gaines that she go to her brother's house on the night of the murder, and Edwards answered, "Yes, I did." Then, Meyers asked Edwards about the exchange with Gaines about washing his hands: "Did you tell her about what happened with the dog?" Edwards answered, "About the dogs, yes." The prosecutor did not object to either of these questions. Thereafter, Edwards testified about the cousin's threatening phone call the next night, and Meyers asked Edwards what he had told Gaines upon receiving the call. Edwards responded, "I told her, `Somebody killed Don and they think I had something to do with it, and they just threatened to come and kill us.'" The prosecutor objected for a second time. The court told Meyers at sidebar that his question effectively waived Edwards' privilege and thus had "opened the door" to further testimony from Gaines about her discussions with Edwards on the nights in question. Meyers again stressed his view that he was allowed to ask Edwards about any communication that he did not deem to be "confidential," and that such questioning did not open the door to the prosecution eliciting any statements from Gaines as to her conversations with Edwards. The court invited Meyers to provide relevant authorities supporting his position the next morning.

Meyers arrived the next morning without any such authorities — indeed, without any authorities at all. The judge directed Meyers' attention to a California appellate court case, People v. Worthington, 38 Cal. App.3d 359, 113 Cal.Rptr. 322 (3d Dist. 1974), concerning the marital privilege and waiver. It became clear that Meyers had not read it. When the court said, "Somebody gave me some cases," the prosecutor replied, "That was me," and Meyers added, "I'm reading those now." When the court offered Meyers additional time to review Worthington and other cases, he replied, "I've pretty well looked at the general parts. Both are attorney-client privilege, that I can see."

In the discussion that followed, Meyers continued to argue his version of the marital privilege, in which he could elicit "nonconfidential" testimony from Edwards about his discussions with Gaines, but prevent Gaines from testifying about her version of the conversations. Meyers also attempted to distinguish Worthington. The court ultimately ruled that the privilege had been waived, and that the prosecution could elicit testimony from Gaines about her discussions with Edwards on the nights of July 17 and 18.

Meyers then stated, "Well, one thing for the record, that raises a significant I.A.C. claim if he is convicted on appeal, in my judgment.... [W]hat you're saying is I erred in asking that question and I, quote, `opened the door,' close quote, to all the other stuff coming in. To me, that's an inadequate representation of counsel." The trial court disagreed, calling it a "tactical decision." Meyers responded, "It wasn't a tactic. It was a mistake."

Given the waiver of the marital privilege, the prosecution was able to elicit the following additional damaging testimony from Gaines: When she came home on the night of the murder, July 17, she asked Edwards why he was scrubbing his hands, and, upon receiving no response, whether he had killed Thomas. Edwards responded, "I'll put it to you like this: you don't have to worry about hearing from him again."

The jury returned convictions on the insurance fraud counts, but deadlocked on the murder charge. One juror, angered by another juror's racial slur, changed her vote and refused to convict.

Before retrial, Edwards successfully moved to have Meyers replaced. See People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970) (holding that defendant has the right to have counsel discharged upon appropriate showing). Edwards argued that Meyers had provided ineffective assistance by leading Edwards to open the door to Gaines' testimony. The court granted the Marsden motion based on "discord" between Edwards and Meyers. Edwards' new counsel argued that there had been no waiver of the privilege, that any waiver had been limited in scope and that any waiver was the result of Meyers' ineffective assistance. The court rejected all three arguments.

At retrial, Gaines testified as she had in the first trial, adding that when she asked Edwards whether he had killed Thomas, he replied, "Yeah." Edwards was convicted of murder, and filed a motion for a new trial, again arguing ineffective assistance of counsel. The trial court denied the motion, ruling that Meyers had made a tactical decision. Edwards appealed to...