Gibbs v. Covello
| Decision Date | 28 April 2021 |
| Docket Number | No. 17-55456, No. 18-55130,17-55456 |
| Citation | 996 F.3d 596 |
| Parties | Raymond Lequan GIBBS, Petitioner-Appellant, v. Patrick COVELLO, Respondent-Appellee. Deyaa Khalill, Petitioner-Appellant, v. W. L. Montgomery, Acting Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Tracy Casadio (argued) and Mark R. Drozdowski, Deputy Federal Public Defenders; Amy M. Karlin, Interim Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant Raymond Lequan Gibbs.
Fay Arfa (argued), Fay Arfa A Law Corporation, Los Angeles, California, for Petitioner-Appellant Deyaa Khalill.
Lindsay Boyd (argued), Deputy Attorney General; Stephanie C. Brenan, Supervising Deputy Attorney General; Susan Sullivan Pithey, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Los Angeles, California, for Respondents-Appellees.
Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges.
Raymond Gibbs and Deyaa Khalill were charged with murder in California state court. The key prosecution witness was Samuel Feissa, an informant who said that both men had confessed to the crime. At trial, Feissa invoked the Fifth Amendment and refused to testify, so the court read to the jury a transcript of Feissa's preliminary-hearing testimony. The jury found Gibbs and Khalill guilty, and the California Court of Appeal affirmed their convictions. It held that Gibbs and Khalill had an adequate opportunity to cross-examine Feissa when he testified at the preliminary hearing, so the introduction of his testimony at trial did not violate their Sixth Amendment right to confront the witnesses against them. Gibbs and Khalill separately petitioned for a writ of habeas corpus, and the district court denied their petitions. Because the state court's decision was not an unreasonable application of clearly established federal law, we affirm.
On the evening of July 25, 2008, Adiel Quezada was found shot to death in Los Angeles. Gibbs, Khalill, and a third defendant were charged with Quezada's murder. No eyewitnesses identified the defendants, and no physical evidence linked them to the crime. At the preliminary hearing, the prosecution presented the testimony of Feissa, who said that he was a former member of a criminal street gang called the 135 Piru and that Gibbs and Khalill were also members of the gang. According to Feissa, Khalill had admitted that he and Gibbs killed Quezada. In a separate conversation, Feissa said, Gibbs too had admitted that he and Khalill killed Quezada. Feissa also testified that he visited Khalill's house and saw guns of the same caliber as those used in the murder.
Counsel for Gibbs and Khalill cross-examined Feissa. They asked Feissa a series of questions about his motive to lie and his potential biases. Under cross-examination, Feissa testified about the leniency he had received from prosecutors for crimes he had committed, about cash payments and other benefits he had received from police officers, and about his history of drug use and memory problems. During some of those lines of inquiry, however, the magistrate cut off or limited the cross-examination. In doing so, the magistrate emphasized that "[t]here are limitations on cross examination at a preliminary hearing," stating that the proceeding "is not a trial and there is not a jury here."
Later in the cross-examination, Khalill's counsel inquired about a pending investigation into Feissa as a suspect in another murder. The magistrate stated that "a limited number of questions" would be allowed on the subject, so that the proceeding did not "start going into a lot of extraneous things." Feissa invoked the Fifth Amendment and did not respond to any further questions about the investigation. Gibbs's counsel asked about Feissa's activities with the gang, and Feissa again invoked the Fifth Amendment. The magistrate denied the defendants’ motion to strike all of Feissa's testimony.
After Feissa finished testifying, the defendants argued that the prosecution had not timely disclosed certain promises it had made to Feissa in exchange for his testimony. The prosecution provided additional information about its promises. Defense counsel objected that they were not permitted to cross-examine Feissa on those points. The magistrate did not recall Feissa as a witness.
At trial, Feissa invoked the Fifth Amendment and did not answer any questions. The court upheld Feissa's assertion of the privilege and determined that Feissa was unavailable as a witness. The court then ordered Feissa's preliminary-hearing testimony read to the jury. During the trial, the prosecution turned over Feissa's informant file to the defense. Using that file, the defense presented evidence of additional cash payments from the police to Feissa (beyond those they had asked Feissa about at the preliminary hearing), as well as evidence that the police had determined Feissa to be an unreliable informant.
At the conclusion of the trial, the jury requested a readback of Feissa's preliminary-hearing testimony, along with that of two other witnesses. After the court asked the jury to narrow its request, the jury decided to start with Feissa's testimony. The next day, the jury returned a verdict of guilty. The court sentenced Gibbs to imprisonment for 50 years to life. It sentenced Khalill to life in prison without the possibility of parole.
The California Court of Appeal affirmed. The court held that Gibbs and Khalill "had an adequate opportunity to cross-examine Feissa" at the preliminary hearing, and therefore the trial court did not violate the Sixth Amendment's Confrontation Clause when it admitted Feissa's preliminary-hearing testimony at trial. The court explained that Gibbs and Khalill "were allowed to question [Feissa] about a variety of topics related to his credibility and his possible motives to be untruthful." As examples of the topics that defense counsel had been able to explore, the court cited "the leniency agreement [Feissa] had entered into, ... the length of the sentence he was facing, his failure to complete community service in another case, his memory problems and whether those problems were caused by drug usage, ... the money he had received for giving information to law enforcement, [and] his membership in the 135 Piru gang." The court acknowledged that the cross-examination had been limited, but it determined that "[t]he restrictions on the questioning imposed by the magistrate primarily related to redundant questioning on matters already covered or questioning on irrelevant or minor topics."
After the California Supreme Court denied review, Gibbs and Khalill each petitioned for a writ of habeas corpus. The district court denied their petitions. The district court agreed with the California Court of Appeal that the "defendants had an adequate opportunity to cross-examine Feissa at the preliminary hearing" and that the "limitations on cross-examination during the preliminary hearing were minor."
We granted a certificate of appealability limited to the question "whether the admission of Samuel Feissa's preliminary hearing testimony violated [the defendants’] Sixth Amendment right to confrontation."
The Confrontation Clause of the Sixth Amendment, made applicable to the States by the Fourteenth Amendment, guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI ; Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Clause prohibits the government from introducing "testimonial" hearsay against the defendant, including "prior testimony at a preliminary hearing." Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
But the government may introduce preliminary-hearing testimony if the witness is unavailable at trial, so long as the defendant had "a prior opportunity for cross-examination." Crawford , 541 U.S. at 68, 124 S.Ct. 1354 ; accord California v. Green , 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (). A witness is "unavailable" if he invokes the Fifth Amendment to avoid testifying, as Feissa did here. Green , 399 U.S. at 168 n.17, 90 S.Ct. 1930 ; United States v. Shayota , 934 F.3d 1049, 1052 (9th Cir. 2019). The admissibility of Feissa's preliminary-hearing testimony therefore turns on whether Gibbs and Khalill had a prior opportunity for cross-examination.
The right to cross-examine guaranteed by the Confrontation Clause includes not only the right "to delve into the witness’ story to test the witness’ perceptions and memory," but also the right to impeach the witness by "cross-examination directed toward revealing possible biases, prejudices, or ulterior motives." Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). "[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316–17, 94 S.Ct. 1105 ; accord Pennsylvania v. Ritchie , 480 U.S. 39, 51–52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality opinion). Cross-examination need not be "certain to affect the jury's assessment of the witness's reliability or credibility" to implicate the Sixth Amendment. Fowler v. Sacramento Cnty. Sheriff's Dep't , 421 F.3d 1027, 1036 (9th Cir. 2005). Rather, the Confrontation Clause protects the right to engage in cross-examination that "might reasonably" lead a jury to "question[ ] the witness's reliability or credibility." Id. (quoting Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1...
To continue reading
Request your trial
-
State v. Sims
...as the Wade/ Henderson hearing at issue here, can provide the constitutionally mandated opportunity to cross-examine. See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony ......
-
United States v. Alahmedalabdaloklah
...a witness about topics that "might reasonably" lead a jury to "question the witness's reliability or credibility." Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir. 2021) (alteration accepted) (quoting Fowler v. Sacramento Cnty. Sheriff's Dep't, 421 F.3d 1027, 1036 (9th Cir. 2005)). Defense cou......
-
Brown v. State
...477, 482 (2006) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ); see also Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir. 2021) ; United States v. Williams, 892 F.3d 242, 247 (7th Cir. 2018) ; Boyer v. Vannoy, 863 F.3d 428, 448-49 (5th Cir. 2017) ;......
-
State v. Sims
...as the Wade/Henderson hearing at issue here, can provide the constitutionally mandated opportunity to cross-examine. See Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.) (holding that the government did not offend the Confrontation Clause when it introduced the preliminary hearing testimony o......
-
Table of Cases null
...61 Cal. App. 5th 59, 275 Cal. Rptr. 3d 359 (4th Dist. 2021)—Ch. 3-B, §21.2.4(3); Ch. 8, §2.3.2(1)(a); §2.3.2(1)(b); §2.6 Gibbs v. Covello, 996 F.3d 596 (9th Cir. 2021)—Ch. 5-E, §2.4.1; §2.4.2; §3.2.1(3)(a) Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (......
-
Chapter 5 - §3. Right of confrontation & out-of-court statements
...41 Cal.4th 555, 598, overruled on other grounds, Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305; see Gibbs v. Covello (9th Cir.2021) 996 F.3d 596, 601. (b) Affidavits & sworn statements. Statements given in an affidavit or made under oath are considered to be testimonial because they fa......
-
Trials
...testified because court ordered government to provide this information only for witnesses who would testify at trial); Gibbs v. Covello, 996 F.3d 596, 605 (9th Cir. 2021) (Confrontation Clause not violated when cross-examination at preliminary hearing weakened by lack of witness informatio......
-
Chapter 5 - §2. Components of right of confrontation
...inferences about the witness's reliability and credibility. See Davis v. Alaska (1974) 415 U.S. 308, 318; Gibbs v. Covello (9th Cir.2021) 996 F.3d 596, 601; Hayes v. Ayers (9th Cir.2011) 632 F.3d 500, 518; see, e.g., Slovik v. Yates (9th Cir.2009) 556 F.3d 747, 753 (violation of right to ef......