McGuire v. Estelle
| Decision Date | 04 May 1990 |
| Docket Number | No. 87-2522,87-2522 |
| Parties | 30 Fed. R. Evid. Serv. 400 Mark Owen McGUIRE, Plaintiff-Appellant, v. Wayne ESTELLE, Warden, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ann Hardgrove Vorhis, San Francisco, Cal., for plaintiff-appellant.
Herbert F. Wilkinson, Supervising Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before SCHROEDER and WIGGINS, Circuit Judges, and STEPHENS *, District Judge.
Mark McGuire ("McGuire") appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254(a). McGuire was convicted of second degree murder and is now serving a fifteen year to life sentence in a California state prison. McGuire contends that the admission of evidence of prior acts against him at his trial, coupled with an instruction that permitted the jury to consider those prior acts as evidence of his guilt of the crime charged, were errors that denied him due process of law under the Fourteenth Amendment. We find that his contention has merit and REVERSE.
Because a proper consideration of McGuire's due process claim requires weighing the prejudice to him of the error he alleges, we examine the trial testimony in some detail.
At about 9:00 p.m., on July 7, 1981, McGuire and his wife brought their six month old baby girl to the emergency room of a hospital in Hayward, California. The baby was bluish in color and was not breathing. The hospital staff were unable to save the baby and she was pronounced dead at about 9:45 p.m.
The father, McGuire, was charged with the second degree murder of his child.
At trial, the prosecution called Dr. Levine, the doctor who examined the baby at the hospital. She testified that the child was essentially lifeless and without vital signs when she was brought into the hospital. The doctor also testified that the baby had a large and relatively recent bruise on the upper left chest area with multiple bruise marks around it, black and blue marks on her ears, and scar tissue indicating a healed tearing around the anus. Doctor Levine opined that the rectal tear was not caused by constipation or fecal impactment. She testified that such scarring probably resulted from the forceful insertion of a finger or some other foreign object. The doctor also testified that the baby had suffered from seven earlier rib fractures.
A different doctor performed an autopsy on the baby and testified that there were at least 17 contusions on the baby's chest and 29 more on her abdomen. He testified that his examination of the internal organs revealed that the liver was split in half, her pancreas was lacerated and split apart, her lower right lung and large vein from the heart were damaged, and part of her intestine was lacerated. The doctor also testified to rectal tearing at least six weeks old and to evidence of several partially healed rib fractures approximately seven weeks old.
McGuire made timely objection to all evidence of prior injuries as not being connected to him. The objections were overruled.
None of the foregoing evidence of injury to the child included evidence of who caused the injuries to her.
The prosecution also called a witness who had overheard McGuire talking to his wife in the emergency room of the hospital. The witness stated that McGuire's wife asked him "what really had happened?" and McGuire is reported to have responded that the baby had fallen from the couch.
A police officer was called by the prosecution. He testified that McGuire had told him that the child had fallen from the couch. The officer then told McGuire that the baby's injuries were inconsistent with a fall from the couch. McGuire thereupon responded that "maybe some Mexicans came in while I was upstairs."
McGuire's wife was next called as a witness by the prosecution. She was granted transactional immunity for her testimony although she had made no statement to the prosecutor prior to the trial. When asked about the circumstances of the baby's death, she testified that she, and not her husband, had beaten the baby. She gave a confused account of having struck the baby in the afternoon of July 7, 1981 and that the child did not move, cry, or cough thereafter.
McGuire's wife testified that on the afternoon of the 7th, after she struck the child, she left the house for about ten minutes and when she returned, the child was not breathing. She stated that she asked her husband what had happened and he said the child had fallen from the couch and struck the walker. She also testified that several weeks prior to the baby's death, she inserted her finger into the baby's rectum in an attempt to relieve her of constipation. She also testified to staying at a neighbor's house for four days prior to the 7th and had made inquiries about a battered woman's shelter.
The prosecution introduced evidence that a fall from a couch could not have produced the injuries causing the baby's death. The prosecution also introduced evidence that McGuire had treated the baby roughly in the past.
The defense countered with witnesses who testified they had never seen McGuire abuse the child. McGuire did not testify in his own defense.
On March 19, 1982, the jury returned a verdict of second degree murder against McGuire. On January 15, 1985, the California Court of Appeal affirmed his conviction. McGuire petitioned for a hearing before the California Supreme Court. On March 21, 1985, the California Supreme Court issued a "postcard denial" of the petition. It did so without any citation or comment.
On August 30, 1985, McGuire filed a petition for writ of habeas corpus in federal district court under 28 U.S.C. Sec. 2254(a). Order to show cause issued on February 26, 1986. In its original response, the state of California did not answer on the merits but argued that McGuire had failed to exhaust his state remedies. The district court, relying on Maxwell v. Sumner, 673 F.2d 1031, 1034 n. 1 (9th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982), ruled against the state on the exhaustion issue and ordered it to answer on the merits. After the state did so, the district court denied McGuire's petition on July 15, 1987. It held that the admission of the evidence of the prior injuries to the child, and a jury instruction relating to that evidence, was proper under California evidence rules. The court also found that the evidence was relevant to contradict a pretrial statement made by McGuire, and offered at trial by the prosecution, that the baby's injuries were caused by her falling off a couch. The court also rejected McGuire's fifth amendment prosecutorial misconduct and denial of discovery claims. McGuire timely appealed. We have jurisdiction under 28 U.S.C. Sec. 1291.
28 U.S.C. Sec. 2254(b) states: "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State...." On direct appeal to the California appellate court, McGuire raised four issues: (1) admission of evidence of prior injuries to the baby and an errant "other crimes" instruction, (2) a fifth amendment claim that the original trial court erroneously admitted evidence of a statement made to the police that "some Mexicans" might have come into his home and presumably injured the baby, (3) a second fifth amendment claim relating to statements he made to the police without Miranda warnings the day before he was arrested, and (4) a prosecutorial misconduct claim. In his petition to the California Supreme Court, McGuire raised only the issues of the evidence of prior injuries and the "Mexican intruder" statement. The California Supreme Court denied his petition without a hearing, comment, or citation. In his petition for habeas corpus, however, McGuire raised all four claims that he had previously raised before the California appellate court.
A petition containing both exhausted and unexhausted claims must be dismissed by the federal courts. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Although McGuire presented only two of his four issues to the California Supreme Court, he has properly exhausted his state remedies. In Maxwell, we stated that:
[I]f a claim has been briefed and argued before the [California] court of appeal failure to assert it in the petition to the California Supreme Court does not normally waive the claim ... [W]hen the California Supreme Court grants a hearing, its order effectively vacates the order of the court of appeal; the California Supreme Court then decides each issue in the case as if it were on original appeal from the trial court, "regardless of the grounds relied on in the petition."
Maxwell, 673 F.2d at 1034 n. 1 (citations omitted). 1 Thus we may reach the merits of McGuire's claims.
We review the district court's denial of a petition for a writ of habeas corpus de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). A state prisoner is entitled to habeas relief only if he is held in violation of the constitution, laws, or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); 28 U.S.C. Sec. 2254(a). McGuire contends that the procedures used to convict him in state court violated his fourteenth amendment right to due process. U.S. Const. Amend XIV. We agree.
A claim for deprivation of due process will succeed only if the trial court's errors rendered...
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