Adrian Lamont Dillard v. Ernie Roe, Wardenattorney Generalof the Stateof California, Adrian Lamont Dillard v. Ernie Roe, Wardenattorney Generalof the Stateof California
Docket: 99-56345
Court: Court of Appeals for the Ninth Circuit; May 17, 2001; Federal Appellate Court
Adrian Lamont Dillard, a California prisoner, filed a federal habeas petition under 28 U.S.C. § 2254, contesting his state court conviction for inflicting corporal injury upon a cohabitant, which violated California Penal Code § 273.5(a). He was sentenced to twenty-five years to life in prison with two additional five-year enhancements. The federal district court partially granted and denied his petition, leading to an appeal by the State and a cross-appeal by Dillard. The Ninth Circuit, with Judges Pregerson, Canby, and Thompson, affirmed the lower court's decision.
The incident in question occurred on March 13, 1994, when Dillard assaulted his girlfriend, Stephanie Rick, after she was approached by two men. Dillard was charged with one count of inflicting corporal injury and two counts of assault with a firearm; however, the latter charges were dismissed due to a lack of credible evidence. At trial, Rick's friend, Kimberly Frazier, testified about Rick's injuries and reported the incident to law enforcement. The case raises issues regarding the admissibility of expert testimony on battered women's syndrome and the procedure for judicial notice of prior felony convictions.
Detective Mauk testified regarding an incident reported by Kimberly Frazier on March 16, where he interviewed Stephanie Rick about an altercation with Dillard on March 13. Rick claimed that Dillard, after witnessing a man touch her leg, fired a shot into the air and later shot into the floor near her feet, subsequently punching her in the mouth. After the incident, Rick went to her relative Keith Royal’s house and informed him of the abuse. Upon returning home, Dillard allegedly assaulted her further.
On March 17, Mauk searched Rick and Dillard’s home, finding three bullet holes in the carpet but no evidence of gunpowder residue. In contrast to Mauk's account, Rick testified that Dillard became upset upon arriving home and pushed her during an argument, resulting in her injury. She denied the allegations of Dillard using a gun or physically assaulting her, instead admitting to physically attacking him and causing her own injuries. Rick later claimed her previous statements to Mauk and Frazier were lies motivated by fear of legal repercussions and a desire for sympathy.
The prosecution called Gail Pincus, a social worker, to testify about Battered Women's Syndrome (BWS). The defense objected to this testimony, arguing that it could bias the jury by implying Rick had BWS simply because she had visible bruises, without establishing a direct link.
The court denied the motion after noting that the alleged victim had recanted her earlier statement, and the admissibility of Battered Woman Syndrome (BWS) evidence was intended to assist the jury in assessing the victim's credibility rather than determining whether the act occurred. Gail Pincus provided general testimony on BWS, describing its development in three phases: the tension rising phase, the violence phase, and the honeymoon phase. She explained that the tension phase involves an intense romantic relationship that deteriorates as the man becomes possessive and angry, leading to the violence phase characterized by physical abuse. Following violence, the abuser attempts to minimize the incident and manipulate the victim into feeling responsible, perpetuating a cycle of abuse that intensifies over time. Pincus noted that women in BWS relationships often humanize their abuser, feeling that their safety depends on him, which can lead to recantation of abuse allegations.
Defense counsel initially sought to appoint rebuttal experts but later requested only Dr. Jacqueline Green, a psychiatrist who had treated Stephanie Rick. Dr. Green testified that, three months post-incident, Rick denied being beaten by Dillard. Although Dr. Green believed Rick, she admitted that Rick had not disclosed her injuries during therapy, and had she known, she would have probed further. Dr. Green also acknowledged her limited experience with BWS. The prosecutor highlighted the challenges of prosecuting domestic violence cases due to common victim behaviors such as recantation and self-blame.
The prosecutor characterized Stephanie Rick as a victim whose recantation of testimony was influenced by self-blame and her affection for Dillard, noting her marriage to him post-incident as evidence of motive. The prosecutor referenced expert testimony to indicate that Rick's behavior aligned with common patterns observed in battered women, affirming her status within the Battered Woman Syndrome (BWS) cycle. It was emphasized that the prosecution did not need to prove Dillard personally used a firearm during the alleged battery, clarifying that no evidence supported such a claim.
Prior to jury deliberations, the prosecutor requested judicial notice of criminal case files revealing Dillard's two prior serious felony convictions: robbery and assault with intent to commit rape. The jury subsequently convicted Dillard of inflicting corporal injury on Rick under California Penal Code § 273.5(a) and confirmed the prior convictions. As a result, Dillard was sentenced as a "three strikes" offender to twenty-five years to life without sentence enhancements.
Dillard appealed to the California Court of Appeal, which upheld the conviction but mandated resentencing due to the requirement for an enhancement under California Penal Code § 667(a)(1). The California Supreme Court denied further review of Dillard's petition. Following remand, the trial court added two five-year sentence enhancements, which were affirmed by the appellate court. Dillard subsequently filed a habeas corpus petition in federal court, where a Magistrate Judge recommended granting relief for the enhancements while denying other claims, including due process violations regarding expert testimony on BWS. The district court adopted the recommendation, leading to timely appeals from both Dillard and the State.
The review of Dillard's petition for habeas relief is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which requires that a petitioner demonstrate that a state court's decision was contrary to or involved an unreasonable application of clearly established federal law as defined by the Supreme Court, per 28 U.S.C. § 2254(d)(1).
Dillard argues that the trial court violated California Evidence Code § 1107 and his constitutional right to a fair trial by allowing the prosecution to present expert testimony from Pincus on Battered Women's Syndrome (BWS) without sufficient proof that the victim, Stephanie Rick, suffered from BWS. He contends that the prosecution did not establish that Rick experienced prolonged physical and psychological abuse from him, the dominant male figure in her life, as required for BWS evidence.
In response, the State asserts that the trial judge properly limited Pincus's testimony to aid the jury in assessing Rick's credibility, particularly due to her recantation of earlier statements. The State maintains that the trial court's jury instructions correctly restricted the use of Pincus's testimony, ensuring it was not interpreted as evidence regarding the occurrence of the crime itself.
The court states that it need not determine if the admission of Pincus's testimony was erroneous under California law, as Dillard must show that it rendered the trial fundamentally unfair to obtain habeas relief. The court concludes that it did not. Pincus's testimony was aimed at undermining Rick's credibility concerning the source of her injuries, which was already compromised due to testimony by Detective Mauk and Kimberly Frazier, who highlighted Rick's inconsistent statements. The jury was presented with two conflicting narratives about how Rick sustained her injuries, and they were aware of her motive to recant her allegations, as highlighted by the prosecution during closing arguments, which noted Rick's emotional ties to Dillard.
The conclusion reached is that, despite expert testimony regarding Battered Woman Syndrome (BWS), no reasonable jury would have accepted Rick's account due to overwhelming evidence against Dillard. Even if the admission of BWS testimony contravened California law, it did not infringe upon Dillard's due process rights or render the trial fundamentally unfair, as determined by precedent. Therefore, this did not result in a decision contrary to established federal law under 28 U.S.C. § 2254(d)(1).
Dillard claimed his constitutional rights were violated when the trial court denied his request for a rebuttal expert to examine the victim for BWS. However, the transcript from a September 12, 1994, hearing revealed that Dillard's attorney had initially requested two experts, but later withdrew the request for one. The trial court agreed to appoint Dr. Jacqueline Green, the psychiatrist who had treated the victim, to testify for the defense and agreed on compensation for her testimony. The record demonstrates that Dillard was granted the appointment of the only expert he requested.
During the trial, Dr. Green testified that the victim, Stephanie Rick, did not suffer from BWS, a claim based on her evaluation of Rick's accounts several months after the incident. The prosecutor successfully challenged Dr. Green's credibility during cross-examination, highlighting inconsistencies in Rick's disclosures about her injuries. The prosecution's rigorous cross-examination of Dr. Green does not substantiate Dillard's assertion of being denied an expert of his choosing. Ultimately, the jury's preference for the prosecution's expert over Dr. Green's testimony indicated a tactical miscalculation by the defense, not any wrongdoing by the trial court.
The district court did not violate Dillard's constitutional rights when it took judicial notice of his prior felony convictions. Dillard faced charges for inflicting corporal injury on a cohabitant and had two prior serious felony convictions under California Penal Code § 667(a)(1). The prosecution requested judicial notice of records from two Los Angeles County Superior Court cases, confirming Dillard's past convictions for robbery and assault with intent to commit rape. The trial judge instructed the jury to accept these facts as conclusively proven but did not compel them to identify Dillard as the individual associated with those convictions. The jury ultimately convicted Dillard and acknowledged his prior offenses, qualifying him as a three strikes offender under California law, resulting in a sentence of twenty-five years to life. Dillard argued that the trial court's actions infringed on his due process and jury trial rights by effectively directing a verdict on the prior convictions. However, the court determined that his statutory right to a jury's determination was not violated, as the jury retained the discretion to conclude that the individual referenced in the records was not Dillard.
The state trial judge's judicial notice of Dillard's prior felony convictions for robbery and assault with intent to commit rape only established that a person named Adrian Lamont Dillard had those convictions. It remained for the jury to determine if the defendant was indeed the same individual. Dillard cannot argue that the judge erred in taking this notice or that it constituted a constitutional violation.
Dillard contended that his constitutional rights were infringed by the imposition of two five-year sentence enhancements since the jury did not find his current offense to be a serious felony. The state is appealing the district court's finding that these enhancements were unconstitutional. The enhancements were applied under California Penal Code § 667(a), which mandates additional penalties for those convicted of serious felonies who have prior serious felony convictions. Dillard's current conviction for willfully inflicting corporal injury on a cohabitant is not classified as a serious felony under California Penal Code § 1192.7(c), although using a firearm in such an offense would qualify.
At sentencing, the trial judge imposed a twenty-five years to life term under the "three strikes" law without applying the enhancements. The state argued that evidence of Dillard's personal use of a firearm during the offense warranted enhancements. The California Court of Appeal agreed, remanding for resentencing, which resulted in the trial judge imposing the enhancements.
In federal habeas proceedings, Dillard claimed that the imposition of the enhancements without a jury finding violated his constitutional rights. The Magistrate Judge concurred, asserting that the question of firearm use was an essential element of the crime that required jury determination. The district court accepted this recommendation, granting habeas relief. The key issue now is whether the district court was correct in finding that Dillard's constitutional rights were violated when the trial judge imposed the enhancements without a jury finding regarding the serious felony classification.
The Sixth Amendment ensures the right to a speedy and public trial by an impartial jury, while the Fourteenth Amendment guarantees due process, mandating that criminal convictions must be based on a jury's determination of guilt beyond a reasonable doubt. If a trial judge determines any element of the crime, it constitutes a violation of the defendant's constitutional rights.
The Supreme Court differentiates between an "element" of a crime, which is essential to the offense and must be proven to a jury, and a "sentencing factor," which pertains to punishment and can be established by a judge using a lower standard of proof (preponderance of the evidence). The distinction is nuanced and not defined by rigid criteria, focusing instead on the substantive impact of the law rather than formal classifications by the legislature.
To assess whether the fact of "personal use of a firearm" is an element or a sentencing factor, it is necessary to analyze how the law is applied and enforced, beyond just the formal definitions. The precedent set in McMillan is instructive; it upheld a Pennsylvania law mandating a minimum five-year sentence if a judge finds that a defendant visibly possessed a firearm during a felony. The court noted that such a finding does not change the maximum penalty or create a separate offense, highlighting the importance of distinguishing between elements and sentencing factors in constitutional analysis.
California Penal Code § 667(a) requires a specific finding that a defendant 'personally use[d] a firearm' during a crime, which is deemed an 'element' of the crime rather than a 'sentencing factor.' This finding is crucial because, without it, the crime does not qualify as a 'serious' felony, which is necessary to impose two five-year sentence enhancements on top of a twenty-five years to life sentence. The distinction between being convicted of merely inflicting corporal injury and inflicting it while personally using a firearm results in a more severe penalty. The trial judge’s determination of this fact, without a jury’s finding, violated Dillard's constitutional rights.
The issue of whether this violation constituted harmless error was also addressed. Under the Brecht standard, the court must evaluate if the error had a substantial and injurious effect on the trial's outcome. It was concluded that the trial court's error was not harmless, as the evidence supporting the claim that Dillard personally used a firearm was insufficient, leading to actual prejudice and rendering the trial fundamentally unfair.
The trial court dismissed the charge against Dillard for using a firearm during the offense against Rick, based on the defense's argument that there was no credible evidence to support this claim. Detective Mauk's search of Dillard and Rick's residence found no physical evidence of a firearm, including guns, bullets, or shell casings. The prosecution conceded during trial that it could not prove Dillard used a gun while causing corporal injury to Stephanie Rick, noting that the only evidence consisted of three holes in the carpet and hearsay statements from Rick, which she denied making. Consequently, it was determined that a jury could not reasonably find beyond a reasonable doubt that Dillard had used a firearm in the incident, leading to the affirmation of Dillard's entitlement to habeas relief regarding this claim.
The court concluded that Dillard's constitutional rights were not violated concerning the testimony of a BWS expert, nor was he prevented from presenting rebuttal expert testimony. However, it found that Dillard's rights under the Sixth and Fourteenth Amendments were violated when the trial judge imposed two five-year sentence enhancements without a jury finding that Dillard personally used a firearm. The order of the district court was thus affirmed.
A five-year enhancement shall be added to the sentence for each prior conviction related to separate charges, with the current offense and enhancements running consecutively. California Evidence Code Section 1107 permits expert testimony on battered women's syndrome (BWS) in criminal cases to discuss the effects of abuse on victims, except when used to prove the acts of abuse against a defendant. Admission of this testimony requires establishing relevance and the expert's qualifications, and it is not considered a new and unproven scientific technique.
California appellate courts have conflicting interpretations regarding the relevancy requirement of Section 1107. In *People v. Gomez*, the court ruled that BWS testimony could not be used to rehabilitate a victim's credibility without evidence of prior abuse, contrasting with *People v. Williams* and *People v. Morgan*, which allowed such testimony without pre-existing abusive relationship evidence. The trend favors allowing prosecution to introduce BWS evidence for credibility rehabilitation. The California Supreme Court has not resolved this issue.
A harmless error analysis under *Brecht v. Abrahamson* was not applied as no constitutional violation was identified, although it would be deemed harmless even if an error had occurred. The trial court accepted the defense's assessment of Dr. Green's qualifications to testify on BWS, acknowledging her as a psychiatrist with experience with battered women, albeit not the most qualified expert. Judicial notice can be taken of official acts and court records as outlined in California Code Evidence Section 452.
In *People v. Hazelton*, 14 Cal.4th 101, 104 (1996), the California Supreme Court detailed the "Three Strikes" law established by the California Legislature in March 1994, which amended Penal Code section 667. This law mandates longer sentences for individuals with prior serious or violent felonies, referred to as "strikes." A "two strike" case involves one prior qualifying felony, while a "three strike" case involves two or more. Predicate felonies are defined in section 667, subdivision (d), and include offenses classified as serious felonies under section 1192.7, which lists forty-one specific felonies, such as robbery and assault with intent to commit rape. Importantly, for a minimum sentence of 25 years to life to be imposed under the "Three Strikes" law, the third felony does not need to be a serious felony. In contrast, a five-year sentence enhancement under section 667(a)(1) requires the third felony to be a serious felony. The determination of whether a defendant has prior convictions is to be made by a jury during the trial, unless waived. In the case at hand, the prosecution provided court records and witness testimony to confirm the defendant's identity, which he did not contest. The California Supreme Court has supported the trial judge’s approach in such matters, allowing the jury to authenticate documents establishing prior convictions. Additionally, another definition of "serious felony" includes any felony where the defendant personally inflicts great bodily injury on another person.
Dillard's conviction for infliction of corporal injury on Rick was determined not to amount to "great bodily injury," a conclusion that the State did not appeal and was adopted by the district court. Dillard's claim of inadequate notice regarding a firearm charge was dismissed by the court, which ruled that he received sufficient notice through preliminary hearing testimony. The Magistrate's Report emphasized the constitutional right to a jury determining each element of a charged offense beyond a reasonable doubt, referencing In re Winship. It asserted that for Dillard's conviction under section 273.5 to be considered a serious felony under section 1192.7(c)(8), the jury needed to find beyond a reasonable doubt that he personally used a firearm during the offense. The court found that the state courts made a constitutional error by applying section 667(a)(1) enhancements based on gun use without a jury determination.
The report referenced the Supreme Court case Apprendi v. New Jersey, which mandates that any fact increasing a penalty beyond the statutory maximum must be determined by a jury, but noted uncertainty regarding Apprendi's retroactive application in habeas proceedings. The court chose not to rely on Apprendi, agreeing instead with the district court's reliance on Winship, affirming that the question of whether Dillard used a firearm was an element of the offense that required jury determination and proof beyond a reasonable doubt. The analysis was further supported by precedents such as Mullaney and McMillan.
