Kipp v. Davis

• Decision Date: 19 August 2020
• Docket Number: No. 16-99004,16-99004
• Citation: 971 F.3d 939
• Parties: Martin James KIPP, Petitioner-Appellant, v. Ron DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 939

Martin James KIPP, Petitioner-Appellant,

v.Ron DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.

No. 16-99004

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 28, 2019 San Francisco, California

Filed August 19, 2020

PAEZ, Circuit Judge:

Martin James Kipp was tried in 1987 for the first degree murder and attempted rape of Antaya Yvette Howard in Orange County. Over Kipp's objection, the trial court allowed the prosecution to present evidence of an unadjudicated murder and rape in Los Angeles County. The prosecution relied on this "other acts evidence" to show the identity of Howard's killer and intent to commit rape and to kill. After the guilt phase of the trial, the jury returned a guilty verdict and, after the penalty phase, it returned a verdict recommending death. The California Supreme Court affirmed Kipp's conviction and death sentence on direct appeal. It subsequently denied his two state habeas petitions.

Kipp filed a federal habeas petition, asserting a number of constitutional claims. The district court denied all the claims but issued a certificate of appealability on Kipp's claim that the erroneous admission of the other acts evidence violated his due process right to a fair trial. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Because the state court made a crucial erroneous factual determination in linking the two crimes and apparently failed to consider the entire record, we conclude that the California Supreme Court's decision finding no due process violation was based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). We also conclude that the admission of the evidence constituted a due process violation that prejudiced Kipp. We therefore reverse the district court's denial of Kipp's habeas petition and remand with instructions to issue a conditional writ of habeas corpus.¹

I.

A.

On January 4, 1984, nineteen-year-old Antaya Yvette Howard was found dead in her orange Datsun car in Huntington Beach, Orange County. She was estimated to have been killed on or about December 30, 1983. We briefly provide the facts of the night leading up to Howard's murder as presented at trial, drawing from the California Supreme Court's opinion on direct review, People v. Kipp , 18 Cal.4th 349, 75 Cal.Rptr.2d 716, 956 P.2d 1169 (1998), and the trial and state habeas records.

On the evening of December 29, 1983, after 10 p.m., Howard drove to a bar in Huntington Beach called the Bee Hive. The defendant, Kipp, age 25 at the time, also went to the Bee Hive that night. He was staying temporarily in the apartment of his childhood friend, Kenton Wheeler, who lent Kipp his sweater. The bartender at the Bee Hive recognized Howard and Kipp as previous customers, but she had not seen them together before.

In the Bee Hive, Kipp sat at the bar next to Howard and they started to talk and drink beer. At around 1:15 a.m., Kipp and Howard left the bar together, returning at around 1:45 a.m. Both were showing the effects of alcohol or some other intoxicating substance, but neither appeared extremely high, and Kipp seemed less impaired than Howard. Kipp and Howard each wanted another beer, but the bartender refused to serve them because they had missed the last call for drinks.

Kipp and Howard departed and were next seen at Charlie's Chili, an all-night restaurant in Newport Beach. There, between 2 and 4 a.m., Kipp and Howard drank a bottle of champagne in the company of a man with sandy hair. Eventually, the sandy-haired man left by himself in his own car. One witness, a restaurant customer, later testified that Kipp and Howard left in Howard's car, with Kipp driving. Another witness, a restaurant employee, testified that Kipp and Howard walked toward the beach after leaving the restaurant. Howard did not return home that night and was never seen alive again.

At around 7 a.m. on December 30, a woman noticed a car parked in an alley behind her Huntington Beach house. This car eventually proved to be Howard's, after the same woman notified the police a few days later because the car emitted a strong odor. When Wheeler returned to his apartment at 4:30 p.m. on December 30, he found Kipp in the shower. The sweater Kipp had borrowed was soiled and stained on the front and arms, and the room in which Kipp had slept held a very strong and sour body odor. Kipp immediately moved out and checked in at a hotel, where he stayed only one night.

On January 6, 1984, Kipp turned himself in to the Laguna Beach Police Department on traffic warrants. On January 10, the Huntington Beach Police Department interviewed Kipp and arrested him for the murder of Howard. The Orange County Public Defender was originally appointed to represent Kipp in the Howard case but, due to a conflict of interest, the trial court substituted in James Egar in April 1984.

Separately, on September 17, 1983, Tiffany Frizzell was found dead in a motel room in Long Beach, Los Angeles County. After being charged with the Howard homicide, Kipp was also charged with the Frizzell homicide in Los Angeles County. In August 1984, Egar was appointed to represent Kipp in the Frizzell case as well.

Egar conducted the preliminary hearings in both cases and applied for funding for investigation and to retain experts. In late 1985, Egar learned that his paralegal was having a romantic affair with his client Kipp. Egar subsequently dismissed the paralegal, which led to a breakdown in the attorney-client relationship and prompted Egar to withdraw from representing Kipp in the Frizzell case. In April 1986, Kipp requested that Egar be relieved as counsel in the Howard case, which the trial court granted. The court appointed Michael Horan to represent Kipp in the Howard case. Separate counsel was appointed to represent Kipp in the Frizzell case.

In the Howard case, Kipp was charged with first degree murder (Count One), rape (Count Two), and attempted rape (Count Three). The First Amended Information also alleged the special circumstance that Kipp committed the murder with the intent to kill while he was engaged in the rape or attempted rape of Howard.

About a month prior to trial, the prosecutor moved to admit evidence of the unadjudicated rape and murder of Frizzell as "other acts evidence" under California Evidence Code section 1101(b) to show the identity of Howard's killer and Kipp's intent to commit rape and to kill. The prosecutor argued that the Frizzell evidence avoided the ban on presenting evidence of a criminal defendant's character or prior conduct because "the Howard murder bears the same signature as the Frizzell murder" and was therefore admissible under section 1101(b).

The defense vigorously opposed admission of the Frizzell evidence, pointing out the differences between the two crimes and arguing that there was no distinctive "calling card." At a hearing on the motions, the trial court noted that "it's a very close call" and a "tough question," but ultimately granted the prosecution's motion to admit the evidence.

Kipp's trial began in mid-July 1987. In its opening statement, the prosecution discussed the Frizzell homicide, asserting that the evidence from the Frizzell case "is intended to show that the defendant killed [Antaya] Yvette Howard. That he intended to rape her; and that he intended to kill her. And that he did kill her." The prosecution then presented witnesses who testified to the facts leading up to Howard's disappearance and discovery, recounted above.

The prosecution also called further witnesses who testified as to the following about the crime scene.² Howard's body was found in her car in the hatchback area containing some trash. There was a sack that contained beer cans and a couple of straws, although no residue of narcotics were detected inside of them. Her body was covered by a blanket, on top of objects like hubcaps and other shoes. Her blouse had been pulled back and was missing a button, although the investigating officer at the scene reported observing no "violence to the blouse." Howard's bra was still clasped but was twisted and above her breasts. There were no shoes on Howard's feet. Her jeans and underwear were around her ankles. There was mud and dirt on the knees, the left side, and the back of the jeans, and also on the upper left part of Howard's body.

The autopsy surgeon testified that the cause of Howard's death was asphyxiation due to strangulation, with blunt force injury to the head as a contributing factor. A criminalist testified about tests conducted for signs of seminal fluid or spermatozoa, which would indicate the possibility of sexual intercourse or assault. No seminal fluid or spermatozoa was detected; the criminalist stated that that could indicate either no presence to begin with, or that it could have evaporated, decomposed, and disappeared. A pathologist also examined Howard's genital and vaginal areas to look for evidence of sexual assault, like tears, lacerations, deep bruising or any other injuries, but found no evidence of trauma. He did not find defensive wounds on Howard's body, but testified there could have been superficial trauma that could have been "readily masked" by decomposition of the body.

The prosecution also introduced evidence of the Frizzell homicide, which took up almost two days of the four-day trial. Of the 32 witnesses who testified, 15 witnesses related to the Frizzell case, including Frizzell's mother. The court instructed the jury that it could consider the Frizzell evidence for the limited purpose of determining whether it tends to show:

a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case, which would further tend to show the existence of the intent ... and special circumstance alleged, or the identity of the person who committed the crimes and special circumstance.

To sum up, the court instructed...