Moses v. Payne

• Decision Date: 15 September 2008
• Docket Number: No. 07-35468.,07-35468.
• Citation: 543 F.3d 1090
• Parties: Jeffrey Duane MOSES, Petitioner-Appellant, v. Alice PAYNE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 1090

Jeffrey Duane MOSES, Petitioner-Appellant, v. Alice PAYNE, Respondent-Appellee.

No. 07-35468.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2008.

Filed September 15, 2008.

COPYRIGHT MATERIAL OMITTED

John Henry Browne, Seattle, WA, for the petitioner-appellant.

Alex A. Kostin, Assistant Attorney General, Olympia, WA, for the respondent-appellee.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Dissent by Judge GOULD.

IKUTA, Circuit Judge:

A Washington state jury convicted Jeffrey Moses of second degree murder for the shooting death of his wife, Jennifer Moses. In this appeal, we consider whether the district court erred in denying Jeffrey Moses's petition for a writ of habeas corpus. Moses contends that his federal constitutional rights were violated by several evidentiary decisions made by the trial court, including the decision to preclude one of Moses's experts from testifying. Moses maintains that he is entitled to habeas relief because the Washington appellate court's decision to affirm his conviction was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We disagree. The Washington appellate court's decision passes muster under the "highly deferential standard for evaluating state-court rulings" in the habeas context. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and we affirm.

I

For a summary of the preliminary facts, we rely on the state appellate court's decision:¹

In the early morning of September 27, 2002, Moses' mother, who lived in California, called the police to report that her daughter-in-law, Jennifer Moses was dead. The police found Moses on the street outside his house, drinking beer, and carrying his younger son on his back. Moses' other son was asleep in the house. According to Moses, Jennifer shot herself and committed suicide. When the officers attempted to enter the house, he told them it was unnecessary because he had cleaned everything up. Police found Jennifer wrapped in a rug in the garage, along with a pile of bloody towels and sponges. Jennifer had a gunshot wound to her head, blunt force trauma to her lips and a cracked tooth. The .410 gauge derringer used in Jennifer's death was found in the master bedroom. The derringer had been recently cleaned and was loaded with two unspent shells. When questioned, Moses told police Jennifer had been depressed and that she came downstairs that evening with the derringer, knelt down and shot herself in the head while Moses tried to get the gun away from her. Moses said he moved Jennifer's body to the garage to prevent their sons from seeing her. He then backed his truck up to the garage to load her body into it and bury her in the woods, as she had requested. When the truck hit a post, Moses said he abandoned the attempt to move Jennifer's body.

Following this incident, the state charged Moses with first degree murder and unlawful possession of a firearm. The state's theory of the murder charge was that Moses intentionally shot Jennifer Moses during a domestic dispute. In support of this theory, the prosecution introduced testimony from several witnesses.

Among these witnesses was Dr. Richard Harruff, a medical examiner, who testified that Jennifer Moses had died from a gunshot wound inflicted to the right side of her upper neck, behind the ear. Dr. Harruff explained that Jennifer Moses's wound was a contact wound, that is, a wound indicating that the gun had been in contact with Jennifer Moses's skin when it was fired. Dr. Harruff further testified that the gun was pointed upwards, "at about an 11 o'clock position," when it was fired in the base of Jennifer Moses's head. Dr. Harruff also stated that a toxicology screen performed during Jennifer Moses's autopsy revealed a blood alcohol level of 0.15.

Over defense objections, the court also permitted Dr. Harruff to testify that in his opinion Jennifer Moses's death was a "homicide." When prompted, Dr. Harruff explained that his use of the word "homicide" was a mixed "medical/legal" standard, signifying the "likelihood of another person's responsibility leading to the death." According to Dr. Harruff, the principal reason a medical examiner would certify a death as a homicide would be for purposes of the death certificate. Dr. Harruff testified:

For example, I would classify something as homicide if the evidence that I see, based on my experience and my professional responsibility, indicates that this is a death that needs to be looked at forthe potential of criminal activity. That's my responsibility, and I certify death based on that. I'm of course not in a position, as the jury is, to render a final conclusion as to whether this represents a murder or not.

Dr. Harruff further clarified that his opinion did not bear on the issue of legal intent, and that his conclusion under the "likelihood" standard was not a determination beyond a reasonable doubt.

Dr. Harruff testified that he tried to limit himself to only "objective" and "unambiguous" factors in his cause-of-death analysis, such as the nature and location of the wound. However, Dr. Harruff acknowledged that he also considered statements in Jennifer Moses's diary.

During cross-examination, the defense elicited testimony from Dr. Harruff that "individuals who have difficulty with drugs and alcohol are probably at a higher risk of suicide than those who are not." Additionally, Dr. Harruff testified that intoxication and access to firearms are both risk factors for suicide.

The government also called Evan Thompson, a ballistics examiner for the Washington State Patrol Crime Laboratory. Like Dr. Harruff, Thompson testified about the ballistics implications of Jennifer Moses's wound. Basing his analysis on the same objective factors considered by Dr. Harruff, Thompson concluded that Jennifer Moses's death was more likely a homicide than either a suicide or an accidental shooting during a struggle over the gun between Moses and Jennifer Moses. Like Dr. Harruff, Thompson concluded that Jennifer Moses's death was likely the result of homicide.

The trial court also allowed testimony concerning a prior incident of domestic violence between Moses and Jennifer Moses that occurred on November 1, 2001, a little over ten months before Jennifer Moses died. This incident resulted in Jennifer Moses going to the hospital along with her children, and several witnesses affiliated with the hospital testified to the events that followed.

Dr. Warren Appleton, the emergency room physician, testified that he interviewed and examined Jennifer Moses in a medical exam room shortly after the November 2001 incident in order to provide treatment, and observed that Jennifer Moses displayed physical signs of fear and anxiety during the examination. In order to assess and understand her level of fear, Dr. Appleton asked Jennifer Moses what had happened. According to Dr. Appleton's testimony, Jennifer Moses stated that Moses assaulted her and broke her jaw.

The hospital social worker, Tamara Muller, testified that she interviewed Jennifer Moses's children while Jennifer Moses was under sedation, and then interviewed Jennifer Moses. One of the children said that he saw Moses kick Jennifer Moses. As a result of this statement, Muller contacted Child Protective Services (CPS). Muller subsequently interviewed Jennifer Moses, who identified Moses as the assailant who broke her jaw. At some point during the interview, Muller told Jennifer Moses that she had contacted CPS.

Muller also gave more general testimony based on her experiences as a domestic violence counselor. Specifically, she testified that she "very seldom" tells victims of domestic violence to leave their abusive situation immediately. The reason, according to Muller, was that "a victim is most likely to be killed ... when they leave." This testimony pertained to the prosecution's theory that Jennifer Moses was attempting to leave Moses on or around the night she died.

Finally, the court allowed the government to introduce evidence drawn from Jennifer Moses's journals. Jennifer Moses used two journals, one that was handwritten and one that was posted online. The government principally relied on the online journal (rather than the handwritten journal) to establish the abusive relationship between Jennifer Moses and Moses. When the government sought to introduce evidence from the online journal, the defense countered that the trial court should also admit the handwritten journal, which included several statements indicating that Jennifer Moses was suffering from depression and had thoughts of suicide.

The trial court decided to include entries from both journals for the four months prior to Jennifer Moses's death. However, the court did not admit all of the journal entries written during this four-month period. Concluding that there was an "overlap" between the two journals, the trial court decided to exclude some handwritten journal entries for days on which Jennifer Moses had also posted an online journal entry. The trial court explained its decision as follows:

The electronic journal, which covers a time, although it overlaps with the written journal, closer to the time of her death, at the beginning has a section in each entry which describes her state of mind that day or mood and some description of how she was feeling. I did find that it was relevant regarding her state of mind. The written journal didn't necessarily have such statements as to her state of mind. And I believe the entire journal is cumbersome and that we do not need the entire journal admitted into evidence.

Moses objected to this decision, arguing that the court was...