Elvik v. Renee Baker & Attorney Gen. of Nev.

• Decision Date: 28 June 2016
• Docket Number: No. 14-15126,No. 13-17530,13-17530,14-15126
• Parties: PETER ELVIK, Petitioner - Appellee, v. RENEE BAKER and ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellants. PETER ELVIK, Petitioner - Appellant, v. RENEE BAKER and ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

PETER ELVIK, Petitioner - Appellee, v. RENEE BAKER and ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellants.

PETER ELVIK, Petitioner - Appellant, v. RENEE BAKER and ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellees.

No. 13-17530

No. 14-15126

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

June 28, 2016

NOT FOR PUBLICATION

D.C. No. 3:04-cv-00471-GMN-WGC

MEMORANDUM^*On Remand From the United States Supreme Court

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,^** District Judge.

The Nevada Attorney General appeals the district court's order conditionally granting Peter Elvik's 28 U.S.C. § 2254 habeas corpus petition, arguing that (1) the district court was obligated to develop alternative theories to support the Nevada Supreme Court's decision, and (2) the district court erred by concluding that the trial court's failure to provide a jury instruction was not a harmless error. We affirm.

1. The district court was not obligated to develop alternative theories to support the Nevada Supreme Court's decision. The Nevada Supreme Court did not provide a summary decision without reasoning, as in Harrington v. Richter, 562 U.S. 86, 96 (2011), or a decision that failed to address one of petitioner's claims, as in Johnson v. Williams, 133 S. Ct. 1088, 1096-97 (2013). Instead, the Nevada Supreme Court provided a reasoned decision that addressed all of the key issues in Elvik's petition. Therefore, the district court did not err by analyzing the rationale of the Nevada Supreme Court as presented in its reasoned opinion.

2. The trial court's failure to provide the jury with an instruction regarding Nevada Revised Statute section 194.010 was not a harmless error. On collateralreview, an error is not harmless if it "had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, petitioners are not entitled to habeas relief "unless they can establish that [the trial court's error] resulted in 'actual prejudice.'" Id. The Supreme Court has explained:

[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough [evidence] to support the result, apart from . . . the error. It is rather . . . whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 765. Additionally, "[w]here the record is so evenly balanced that a judge 'feels himself in virtual equipoise as to the harmlessness of the error' and has '"grave doubt" about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.'" Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (second alteration in original) (quoting O'Neal v. McAninch, 513 U.S. 432, 435, 437-38 (1995)).

Nevada Revised Statute section 194.010 creates a presumption that children (between the ages of eight years and fourteen years) lack the capacity todistinguish right from wrong. See Winnerford Frank H. v. State, 915 P.2d 291, 293 (Nev. 1996). Accordingly, the prosecution bears the burden of rebutting this presumption by establishing, through clear proof, "that at the time of committing the act . . . [the child] knew its wrongfulness." Nev. Rev. Stat. § 194.010. Elvik's proposed instruction (based on section 194.010) stated:

All persons are liable to punishment except those belonging to the following class as it applies to this case:

Children between the ages of eight years and fourteen years, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness. Peter Elvik was fourteen years old on August 31, 1995.

The trial court rejected the instruction. Accordingly, the trial court did not instruct the jury as to the applicability of section 194.010.

We have "grave doubts" as to whether the trial court's error was harmless. See Garcia v. Long, 808 F.3d 771, 781 (9th Cir. 2015) ("[The Brecht] standard is satisfied if the record raises 'grave doubts' about whether the error influenced the jury's decision."). Juries are presumed to follow the instructions given to them by the trial court. Vitello v. United States, 425 F.2d 416, 422 (9th Cir. 1970). Thus, had the trial court given the instruction, the jury would have been required to presume that Elvik was not liable for his actions, unless the government proved by clear evidence that Elvik knew (at the time he committed the crimes) that hisconduct was wrong. The trial court's failure to give the instruction relieved the government of its burden of proving an element of the crime.

The government contends that, even without the instruction, the record contains sufficient evidence indicating that Elvik understood the wrongfulness of his actions. We are not convinced. The record also includes evidence that Elvik did not understand that what he did was wrong. In the face of this conflicting evidence, the trial court did not require the government to provide clear proof to the jury that Elvik understood the wrongfulness of his actions. Indeed, the trial court did not inform the jury that acquittal under section 194.010 was an option. This error was substantial and injurious to Elvik. Therefore, we agree with the district court and conclude that the trial court's failure to provide a jury instruction regarding section 194.010 was not harmless.

In Davis v. Ayala, the Supreme Court clarified that just because a petitioner "meet[s] the Brecht standard . . . does not mean . . . that a state court's harmlessness determination has no significance." 135 S. Ct. 2187, 2198 (2015). The Supreme Court explained that "if the state court adjudicated [the prisoner's] claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Id. at 2199. Accordingly, our conclusion that Elvik satisfies the Brecht standard necessarily means that Elvik also showed that the Nevada Supreme Court'sharmlessness determination was objectively unreasonable. See Sifuentes v. Brazelton, 815 F.3d 490, 518 (9th Cir. 2016) ("[I]f a petitioner does satisfy the Brecht requirement of showing that an error resulted in 'actual prejudice,' then the petitioner necessarily must have shown that the state court's determination that the error was harmless was objectively unreasonable."). For purposes of clarity, we confirm that the Nevada Supreme Court's harmless error analysis was "contrary to . . . clearly established Federal law" under 28 U.S.C. § 2254(d)(1), because the Nevada Supreme Court based its decision on a sufficiency of the evidence analysis rather than the harmlessness analysis required under Chapman v. California, 386 U.S. 18 (1967).

Because we affirm the district court's conditional grant of Elvik's habeas petition, we do not reach the issues raised in Elvik's cross appeal.

AFFIRMED.

KRONSTADT, District Judge, concurring in part and dissenting in part:

I concur with the conclusion of the majority that "[t]he district court was not obligated to develop alternative theories to support the Nevada Supreme Court's decision." I also agree with its statements that "Nevada Revised Statute section 194.010 creates a presumption that children (between the ages of eight years and fourteen years) lack the capacity to distinguish right from wrong" and that as a result, "the prosecution bears the burden of rebutting this presumption by establishing, through clear proof, 'that at the time of committing the act . . . [the child] knew its wrongfulness.'" (quoting Nev. Rev. Stat. § 194.010). Finally, I agree with the majority's description of the Brecht standard, which on collateral review governs the determination of whether an error is harmless, as clarified in Davis v. Ayala, 135 S. Ct. 2187 (2015). I disagree, however, with the application of the Brecht standard by the majority to the record evidence. Therefore, I respectfully dissent from its conclusion that "[t]he trial court's failure to provide the jury with an instruction regarding Nevada Revised Statute section 194.010 was not a harmless error."

As the majority observes, "[t]he government contends that, even without the instruction, the record contains sufficient evidence indicating that Elvik understoodthe wrongfulness of his actions." The majority then states that it is "not convinced" by this argument because

[t]he record also includes evidence that Elvik did not understand that what he did was wrong. In the face of this conflicting evidence, the trial court did not require the government to provide clear proof to the jury that Elvik understood the wrongfulness of his actions . . . . This error was substantial and injurious to Elvik.

It is with these conclusions that I respectfully disagree.

In my view, the record evidence is not "so evenly balanced" that a judge could feel "in virtual equipoise as to the harmlessness of the error" or have "grave doubt about whether an error affected a jury [substantially and injuriously] . . . . " Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (alteration in original)(internal quotation marks omitted) (citing O'Neal v. McAninch, 513 U.S. 432, 435, 437-38 (1995)). Instead, a consideration of the record evidence as a whole supports the conclusion that the error did not have a substantial and injurious effect or influence on the verdict. For these reasons, "on the record in this case, [defendant] cannot establish actual prejudice . . . ." Davis, 135 S. Ct. at 2203.

The following record evidence shows that Elvik had a level of sophistication and understanding that would cause any reasonable jury to conclude that, when he shot and killed the victim, Elvik knew the...