Ghent v. Woodford

• Decision Date: 08 February 2002
• Docket Number: No. 99-99025.,99-99025.
• Citation: 279 F.3d 1121
• Parties: David Luther GHENT, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 1121

David Luther GHENT, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of California State Prison at San Quentin, Respondent-Appellee.

No. 99-99025.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2001.

Filed February 8, 2002.

Amended March 11, 2002.

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Douglas R. Young, Claudia A. Lewis, Jennifer Schwartz, Grace K. Won and Kelly A. Woodruff, Farella Braun & Martel, LLP, San Francisco, CA, for the petitioner-appellant.

Joan Killeen, Deputy Attorney General, and Peggy S. Ruffra, Supervising Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; William I. Ingram, Chief Judge, Presiding. D.C. No. CV-90-02763-WAI.

Before: REINHARDT, HAWKINS, and RAWLINSON, Circuit Judges.

REINHARDT, Circuit Judge.

David Luther Ghent, a prisoner currently on California's death row, appeals the district court's dismissal of his habeas corpus petition and asks this court for relief on several grounds related to both his convictions and his death sentence. We hold that the district court erred in finding the admission of testimony in violation of Ghent's Miranda rights in the special circumstances retrial to be harmless error. Accordingly, we reverse the district court's holding in part and remand with instructions to vacate Ghent's death sentence. As to Ghent's other claims, we reject those that seek relief from his convictions and do not reach those that involve the penalty phase of his trial.

I. Background

The following facts are taken from the California Supreme Court's decision in People v. Ghent, 43 Cal.3d 739, 239 Cal Rptr. 82, 739 P.2d 1250 (1987). Additional facts pertinent to each claim will be presented in the relevant sections.

In the early morning hours of February 21, 1978, Ghent entered the bedroom of his housemate, Jacqueline Preskitt. He jumped onto her bed and requested a sexual act, ignoring her screaming and struggling. Ms. Preskitt's child entered the bedroom, interrupting Ghent's advances. Ghent then left the house at approximately five a.m.

Ghent arrived a little while later at the home of some acquaintances, Paul and Patricia Bert. Mrs. Bert informed Ghent that her husband had already left for work. According to Ghent, while Mrs. Bert was writing down her husband's phone number at his request, her robe fell open, revealing her naked body. Ghent testified that his next memory was that he was standing over Mrs. Bert's dead, nude, body with a bloody knife in his hand. Mrs. Bert's hands were tied behind her back.

Ghent testified that, after coming to and seeing the result of his actions, he vomited in a toilet and then began to call the police but became scared and left the house instead. He returned shortly thereafter and removed his fingerprints from inside the house and retrieved the murder weapon. He then left for a second time and went to change his bloody pants at a friend's house.

The autopsy surgeon counted twenty-one stab wounds in Mrs. Bert's neck and chest. Sperm was found in her genital cavity that came from a Group B type "donor." Both the Berts were Group A type, while Ghent was Group B.

The California Supreme Court stated that Ghent's primary defenses at trial were his "lack of deliberation and premeditation, and insufficiency of the evidence to establish forcible rape." Id. at 1256.

Ghent was tried under the State's 1977 death penalty law. Id. at 1255. On August 7, 1979, the original jury found him guilty of first degree murder and attempted rape of Patricia Bert, and assault with intent to commit rape of Jacqueline Preskitt. It deadlocked, however, regarding the special circumstances allegation: that Ghent committed a premeditated, willful, and deliberate murder during the commission or attempted commission of a rape. A second jury was chosen and that jury found the special circumstance to be true on September 21, 1979. The second jury proceeded to the penalty phase and after a five-day hearing sentenced Ghent to death. The California Supreme Court affirmed Ghent's conviction and sentence on August 13, 1987, and a petition for certiorari was denied on February 29, 1988. Ghent v. California, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 261 (1988). Subsequently, Ghent filed a state petition for a writ of habeas corpus in the California Supreme Court which was summarily denied on August 22, 1990.

Ghent filed a federal habeas petition on June 18, 1992 and an amended habeas petition in federal district court on November 16, 1994.¹ The district court denied Ghent's habeas petition in two orders. Ghent subsequently filed a timely notice of appeal. Because the notice of appeal was filed after AEDPA's effective date, a Certificate of Appeal ("COA") is required. See Slack v. McDaniel, 529 U.S 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Ghent's notice of appeal as an application for a COA, see id. at 483, 120 S.Ct. 1595; Schell v. Witek, 218 F.3d 1017, 1021 n. 4 (9th Cir.2000) (en banc), and conclude that Ghent has made a "substantial showing of the denial of a constitutional right" for all of the issues briefed to this court. 28 U.S.C. § 2253(c)(2) (1994 ed., Supp. III). Therefore, we proceed to the merits of his claims.

II. The Erroneous Admission of Testimony

Following his arrest on February 22, 1978, Ghent was interrogated by Officers DeSart and Pate of the Santa Clara County Sheriff's Department. Ghent, 239 Cal.Rptr. 82, 739 P.2d at 1256. Although he initially waived his Miranda rights, Ghent later asked several times for the assistance of an attorney. Id. Despite these requests, the officers continued their interrogation. Id. They encouraged Ghent to speak with Dr. Shoor, a psychiatrist who had been previously retained by the department. Id. They told Ghent to discuss any "sex problem" he had with the psychiatrist. They did not tell Ghent, however, that his statements during the psychiatric exam could be used against him in a criminal proceeding; instead they said that the conversation would be a private one between Dr. Shoor and Ghent. Upon Dr. Shoor's arrival, Ghent was readvised of his Miranda rights. Id. He was told that Dr. Shoor's report could be used against him in court. Dr. Shoor interviewed Ghent for approximately forty-five minutes. Id.

Upon review of these facts, all courts have held that the admission of the testimony of Dr. Shoor and DeSart was in violation of Ghent's Fifth Amendment right to be free from self-incrimination. The California Supreme Court held that the testimony of DeSart and Dr. Shoor was inadmissible "by reason of a violation of Miranda principles," id., and the federal district court agreed. Because it is a violation of Miranda to question an individual who is in custody after he has requested counsel, the State does not challenge either of these courts' holdings. Therefore, we proceed to the issue of the prejudicial effect of the admission of DeSart's and Dr. Shoor's testimony at the various stages of the proceedings.

A. Standard of Review

The admission of testimony in violation of Miranda constitutes a violation of Ghent's due process rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also Dickerson v. United States, 530 U.S. 428, 443-44, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). However, the finding of constitutional error does not automatically necessitate reversal. The erroneous admission of statements taken in violation of a defendant's Fifth Amendment rights is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir.1999). Despite the state supreme court's and the district court's finding of a constitutional violation, both courts held that the erroneous admission of Dr. Shoor and DeSart's testimony was harmless error. The district court's determination of whether an error was harmless is a mixed question of law and fact that is reviewed de novo by this court. Suniga v. Bunnell, 998 F.2d 664, 667 (9th Cir.1993); see also Brecht v. Abrahamson, 507 U.S. 619, 642, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Stevens, J., concurring). The state court's conclusion that a constitutional error was harmless is also reviewed de novo in all pre-AEDPA cases. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995); Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988).

In undertaking our de novo review of the prejudicial effect of the erroneous admission of testimony, the question is whether the erroneously admitted evidence had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting and adopting standard in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000). A reviewing court does not examine whether there was sufficient evidence to support the conviction in the absence of constitutional error. See Standen v. Whitley, 994 F.2d 1417, 1423 (9th Cir.1993). Rather, regardless of whether there is sufficient evidence to support the conviction apart from the error, we must determine whether the error had a "substantial and injurious effect or influence" on the conviction before us on appeal. See Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239; Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir.1996). If we conclude that it did, we must set aside the jury's findings.

B. Analysis

The State introduced testimony by Dr. Shoor at both the trial and the special circumstances retrial.² In both of these proceedings, issues were raised concerning Ghent's state of mind at the time of the crimes. Ghent primarily challenged the extent of his culpability under the law as opposed to...