Kennedy v. Lockyer

• Citation: 379 F.3d 1041
• Decision Date: 14 June 2004
• Docket Number: No. 01-55246.,01-55246.
• Parties: Robert E. KENNEDY, Petitioner-Appellant, v. Bill LOCKYER, Attorney General, State of California, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

379 F.3d 1041

Robert E. KENNEDY, Petitioner-Appellant, v. Bill LOCKYER, Attorney General, State of California, Respondent-Appellee.

No. 01-55246.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2003.

Filed June 14, 2004.

Amended August 18, 2004.

Jeff Dominic Price, Esq., Santa Monica, CA, for the appellant.

Lora Fox Martin and Anthony DaSilva, Deputy Attorney Generals, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Barry Ted Moskowitz, District Judge, Presiding. D.C. No. CV-99-02505-BTM.

Before REINHARDT, O'SCANNLAIN, and FISHER, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge FISHER; Dissent by Judge O'SCANNLAIN

REINHARDT, Circuit Judge:

Robert Kennedy was tried twice on a charge of selling 0.08 grams of a substance in lieu of a controlled narcotic drug — a substance that looked like an illegal drug but wasn't — to an undercover police officer for $20. The first trial ended in a hung jury: four jurors favored finding Kennedy not guilty; eight jurors thought him guilty. Prior to his second trial, Kennedy twice asked the state court to provide him with a complete transcript of the earlier proceeding. It refused to do so. Instead, it granted him only the portion of the transcript that contained the witnesses' testimony and denied him the portion that contained the parties' motions and the court's rulings thereon, as well as the court's instructions and the parties' opening statements and closing arguments.

At the second trial, Kennedy was represented by a new attorney who proceeded without the aid of a complete transcript of the prior trial. Aware that the new attorney did not have the full transcript, the state introduced evidence intended to show gang involvement on Kennedy's part — evidence that had been excluded from the first trial after a successful pre-trial motion to suppress. This time, after a one day trial and three days of deliberations, the jury returned a guilty verdict. Because Kennedy had two prior serious or violent offenses, he was sentenced for the $20 sale of a non-drug to a prison term of twenty-five years to life, pursuant to California's Three Strikes Law, Cal.Penal Code §§ 667(e) and 1170.12(c)(2) (2003).

Kennedy appeals the district court's dismissal of his habeas corpus petition. He argues that his Fourteenth Amendment right to due process and equal protection was violated when the state court denied his request for the full transcript of his first trial. Because the state court's decision was contrary to clearly established Supreme Court law, we reverse the district court and direct it to grant Kennedy's habeas petition.¹

I The Second Trial

The prosecution's principal witness in the second trial, as in the first, was Detective Leroy McDowell of the San Diego Police Department. Detective McDowell testified that he was working undercover narcotics detail in casual clothes one afternoon in October of 1995. Another officer dropped him off near the intersection of 22nd and J Streets in San Diego. McDowell testified that when he saw Kennedy and Randall Tucker across the street, he made eye contact with Kennedy and nodded his head. McDowell said that he approached the two men and asked, "Are you serving?," meaning in street terminology, "Are you selling drugs?" Tucker responded by saying, "What?" McDowell testified that he asked the question again and Tucker responded, "What do you want?" McDowell said he told the two men that he wanted a "2-0," which he testified means $20 of rock cocaine or another controlled substance. In response, Tucker asked, "2-0 of what?;" McDowell said he repeated, "2-0."

McDowell said that Kennedy then asked for money, and he took a prerecorded $20 bill from his pocket and gave it to him. Kennedy put the bill in his pocket and said to Tucker, "Give it to him, cuz." Tucker walked over to the fence, picked up a paper bag, and handed it to McDowell. Inside the bag were pieces of an off-white, rock-like substance. Tucker asked if McDowell was a police officer, and McDowell said, "No, why would I be down here if I was the police?"

McDowell testified that he looked in the bag, told Tucker that there was not enough there, and asked him to give him some more. Tucker then said, "That's all we have. Come back later we'll give you some more." McDowell then said, "No, at least give me $5 of my money back."

McDowell walked away from Kennedy and Tucker and alerted the other officers who were waiting nearby. The officers then moved in and arrested the two. In Kennedy's pocket, they found the marked $20 bill. The bag contained 0.08 grams of a "non-controlled substance" that had the appearance of an illegal drug.

Although Tucker pled guilty after the first trial, and thereby avoided a three-strike twenty-five years to life sentence,² he testified for the defense at the second trial. His testimony differed from McDowell's. Tucker testified that he and Kennedy had been hanging out in the area all day and earlier had been stopped and patted down by police, who found nothing on either man. Tucker told the jury that, when McDowell approached the two, no drugs were ever mentioned but that he noticed McDowell had money in his hands. Tucker said McDowell handed the money to him. Because McDowell was "pushing too much," Tucker walked over to a nearby area, picked up a piece of paper bag, and gave it to McDowell. Tucker said "2-0" and "are you serving" can mean different things, and that he did not know what McDowell wanted.

In addition to Detective McDowell's testimony regarding the actual event, the prosecution elicited "gang" testimony from him. The prosecutor asked McDowell if he could tell the jury what the word "cuz" meant, as it was used by Kennedy during the transaction. He replied, "Terminology used by Cripp gang members." The prosecutor persisted, "Is it on the street used for — commonly used between individuals that are working together?" McDowell answered, "Generally, it was most — a lot of people use it and — but basically gang members and those that want to be gang members."

Procedural History

The first trial was a joint trial of the two co-defendants. At a pre-trial hearing, Kennedy's counsel moved in limine to exclude all references to any gangs and any gang affiliation; the court granted the motion in a written order which provided that, "There will be no mention of `gangs or gang affiliation,' unless cleared by the Court, out of the presence of the jury."

During the discussion of the motion, the court explained that evidence of possible gang involvement, if introduced at all, could be used only for impeachment purposes, to prove Kennedy and Tucker's relationship. Before the prosecution could impeach Kennedy on this basis, however, the judge stated that he would hold a hearing outside the presence of the jury, after which he would make a determination as to whether the evidence should be admitted for even this limited purpose. The judge told the prosecutor he would "have to be pretty convincing before [he would] let that[evidence] come in." The transcript of the discussions regarding the motion to exclude and the court's ruling thereon was not given to Kennedy or his counsel prior to the second trial.

As soon as the mistrial was declared, Kennedy's counsel moved for a complete transcript of the first trial in order to prepare for the expected second trial. The judge ruled that Kennedy was entitled only to a transcript of the trial testimony; he denied him the remainder of the transcript, including the parties' opening statements and closing arguments, evidentiary motions and rulings, jury instructions, and all other motions and colloquies. The following exchange occurred between Kennedy's counsel and the court:

[Counsel]: Your Honor, I'd also ask for an order for a transcript being prepared for the purpose of the next trial.

[Court]: Well, you can submit that to the court after — I'd — I'd — I would hope that wouldn't be necessary to go to that expense, but I'd like to explore some disposition short of that. But if it's going to trial then I think the case law says that you're entitled to that transcript, just of the testimony, not of the entire trial.

[Counsel]: That's fine, your Honor.

[Court]: All right.

A second trial date was then scheduled. During a pre-trial hearing, Kennedy told the judge that he was dissatisfied with his counsel's representation and moved to proceed pro se. The motion was granted and new stand-by counsel was appointed. At the hearing, before relieving counsel of her responsibilities, the court inquired whether she had ordered a transcript of the first trial. She responded that she already had one and would make it available to Kennedy. In fact, however, counsel had only the transcript of the witnesses' testimony at trial, not the full proceedings.

Ten days later, Kennedy, now proceeding pro se, asked the court to provide him with a full trial transcript in order to enable him to prepare for the second trial. During the hearing on this motion, Kennedy told the judge that he did not have his "full trial transcripts" and that he only had the testimony of the witnesses at the first trial. He told the judge that he needed, at the very least, the transcript of "all motions, opening statements, and final argument." Kennedy and his standby counsel (who later became appointed counsel)³ explained that Kennedy needed to review the full transcript so that he could prepare his defense for the second trial. The court denied the request.⁴

During the second trial, the prosecution, which was aware that the prior trial judge had excluded any mention of Kennedy's alleged gang involvement, proceeded, deliberately, to elicit testimony from Detective McDowell on the subject of gangs. The prosecutor asked Detective McDowell what the word "cuz," used by Kennedy during the street discussion, meant. McDowell testified that...