ROBERT J. ENGELHARDT, Petitioner,
JAMES HEIMGARTNER, et. al., Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, U.S. DISTRICT SENIOR JUDGE
This case comes before the Court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmate at El Dorado Correctional Facility who was convicted of first degree murder and sentenced to a hard 50 life sentence.
The parties do not dispute the procedural history of the case or the facts regarding the underlying crime as stated in the Kansas Supreme Court’s decision in petitioner’s state criminal case, State v. Engelhardt, 280 Kan. 113 (2005), and in the Kansas Court of Appeals (KCOA)’s decision reviewing petitioner’s K.S.A. 60-1507 proceeding, Engelhardt v. State, 2011 WL 445953 (2011) (Case No. 103, 556). Accordingly, the Court adopts those facts as correct and finds it unnecessary to repeat them herein except as set forth in the analysis of the petition. See 28 U.S.C. § 2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004). Respondents admit that Petitioner has exhausted his available state court remedies.
I. AEDPA Standard
This matter is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a “highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. ___, 130 S.Ct. 1855, 1862 (2010) (citation and internal quotation marks omitted). Under AEDPA, where a state prisoner presents a claim in habeas corpus and the merits were addressed in the state courts, a federal court may grant relief only if it determines that the state court proceedings resulted in a decision (1) “that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A state court decision is “contrary to clearly established Federal law” when: (a) the state court “ ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' ”; or (b) “ ‘the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent .’ ” Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct legal rule from Supreme Court case law, but unreasonably applies that rule to the facts. Williams, at 407–08. Likewise, a state court unreasonably applies federal law when it either unreasonably extends, or refuses to extend, a legal principle from Supreme Court precedent where it should apply. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
In reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). In order to obtain relief, a petitioner must show that the state court decision is “objectively unreasonable.” Williams, 529 U.S. at 409 (O'Connor, J., concurring). “[A] decision is ‘objectively unreasonable’ when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law.” Maynard, 468 F.3d at 671.
A. Petitioner’s Absence During Jury View
Petitioner contends that his fifth and sixth amendment rights were violated when the district court prohibited him from being present during the jury’s view of the crime scene. Petitioner alleges that the trailer site was emotionally charged, that the physical corroboration of witness’ testimony was crucial, and that his absence conveyed to the jury that he was dangerous or a flight risk.
The prosecution requested a jury view. The district court believed that the view of the trailer where the stabbing occurred would help the jury understand the amount of space in the trailer and its layout. Engelhardt, 280 Kan. at 120. The district court ruled that petitioner would not be allowed inside the trailer because of its close quarters, but could be present outside the trailer. The court suggested two practical ways to accomplish that, but petitioner declined. Id. The bailiff took only the jurors to the scene. The district judge had directed them to enter the trailer two at a time, to walk to one end and back, and then to get back on the bus. The judge had further admonished the jurors not to talk among themselves or touch anything in the trailer. Id. at 121. No one contends that the jury violated these admonitions.
1. State Court Holding
The Kansas Supreme Court recognized that the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require a defendant's presence at every critical stage of the criminal proceedings against him. 280 Kan. at 122. But the Court found the jury view did not constitute a critical stage of the proceedings against him. 280 Kan. at 122-24. The Court found that the role of the jury view was “strictly corroborative, ” as it enabled them to see the space available in the trailer, particularly the distance between the place of the attack (in the front room) and the place the witnesses were (in the bedrooms), and the results of the clean-up job described by witnesses (bleaching, repainting, etc.). Id, at 123.
Additionally, the Court concluded that “[i]n light of the overwhelming evidence against Engelhardt in this case, any theoretical error in excluding him from the jury view would have been harmless under any potentially applicable formula.” 280 Kan. at 125. It rejected as illogical petitioner’s claim of prejudice, stating:
As for the possibility that Engelhardt's absence may have contributed to a jury perception of him as a flight risk or dangerous, we have no doubt that jurors seeing him inside the trailer in shackles and accompanied by police officers would have been led to a similar, perhaps stronger, perception.
280 Kan. at 125.
2. Habeas Review
It is a basic premise of our justice system that during a felony prosecution, the defendant has a Fourteenth Amendment privilege to be present under certain circumstances.
The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
Although the Court has emphasized that this privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow, ” id., at 106-107, 54 S.Ct., at 332, due process clearly requires that a defendant be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence, ” id., at 108, 54 S.Ct., at 333. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.
Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 667 (1987) (finding no due process violation by excluding defendant from a hearing to determine two young witnesses' competency to testify). Two common exceptions to this rule exist but are inapplicable here. See Crosby v. United States, 506 U.S. 255, 259 (1993) (waiver by voluntary absence); Illinois v. Allen, 397 U.S. 337, 343 (1970) (forfeit by disruptive behavior).
The United States Supreme Court has specifically ruled that a felony defendant has no right to be present at a bare inspection. See Snyder v. Com. of Mass., 291 U.S. 97, 108, 54 S.Ct. 330 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (finding the Fourteenth Amendment does not assure an accused charged with a felony the privilege to be present at a mere view of scene of the offense, where nothing is said to direct the jury's attention to features to be observed, and nothing improper is shown). “While portions of Snyder have been overruled, the central holding of Snyder remains good law. Larson v. Tansy, 911 F.2d 392, 394 (10th Cir. 1990); Kentucky v. Stincer, 482 U.S. 730, 745 (1987); Devin v. DeTella, 101 F.3d 1206, 1209 (7th Cir. 1996).” Stewart v. Roberts, 2006 WL 1128701 (D.Kan. 2006) (denying habeas relief because defendant's absence during a jury view of the crime scene is not a constitutional violation). Thus no constitutional violation occurred here, where the jury conducted a bare inspection outside Petitioner’s presence.
Petitioner claims prejudice, but fails to show how his presence at the trailer during the jury viewing would have made any difference. See Hale v. Gibson, 227 F.3d 1298 (10th Cir. 2000) (finding defendant’s absence from a hearing on counsel’s motion to withdraw did not violate the defendant's due process rights). Petitioner had been in the trailer before and knew its logistics and appearance so was able to discuss with his attorney matters pertaining to the scene. His presence would not have helped ensure a more reliable determination as to the size and location of the rooms in the trailer, the existence or extent of the clean-up, or any other matter.
The sole specific suggestion of prejudice is that the jury might infer he was too dangerous or too much a flight risk to attend the viewing. But the jury had heard other testimony about petitioner’s behavior which would have warranted a conclusion that he was dangerous, and it is sheer speculation to contend that his absence during the bare inspection was likely to prejudice the petitioner in this respect. See Stewart, 2006 WL 1128701, 8 (finding no support in the record for “petitioner’s speculative argument” that “he was prejudiced because the jury might have inferred that he was too dangerous to come to the crime scene viewing.”).
Because petitioner has failed to establish that a constitutional deprivation occurred, the Court does not reach Respondent’s harmless error analysis.
B. Prior Bad Acts
Petitioner contends that the district court’s admission of the following evidence denied him his right to a fair trial: testimony and a mug shot showing that Petitioner was on parole, had absconded from parole, and was wanted at the time of the crime; a photograph of petitioner’s girlfriend, Michelle Drake, taken at the time of her arrest showing bruises he allegedly inflicted after the homicide; and his use of Brian Smith’s identification when stopped by police for a traffic infraction.
1. State Court Holding
The State's theory in this case was that petitioner killed Michael because he was afraid Michael was a snitch who would report petitioner to authorities as a parole absconder. Before trial, petitioner filed a K.S.A. 60– 455 motion in limine to preclude evidence regarding his parole status. The trial court ruled that evidence that petitioner was on parole and that he had absconded form parole was admissible, R. Vol. 10, p. 18, but the nature of his prior conviction was inadmissible. The court gave a limiting instruction that the jury could consider evidence that petitioner’s had a parole warrant for his arrest solely for the purpose of proving his motive.
The Kansas Supreme Court found that admission of petitioner’s parole status was relevant to establishing motive for the crime and was admissible under state rules. Engelhardt, 280 Kan. at 127-29, applying K.S.A. 60–455.
The Kansas Supreme Court questioned the relevance of the other challenged evidence, but found that any error in admission was harmless given the “overwhelming evidence” or weight of the evidence against petitioner. See 280 Kan. at 130-31.
2. Habeas Review
“Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights.” Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus, federal courts should not disturb a state court ruling unless “the error, if any, was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.” Williamson v. Ward, 110 F.3d 1508, 1522–23 (10th Cir. 1997). This fundamental fairness test controls where the challenged evidence is a prior bad act. Smallwood v. Gibson, 191 F.3d 1257, 1277 (10th Cir. 1999). See Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.), cert. denied, 537 U.S. 1093 (2002). Petitioner thus bears the burden to show that the admission of the challenged evidence prejudiced him in such a way as to “infect[ ] the entire trial.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
Regarding evidence of petitioner’s parole status, the record confirms that petitioner’s fear of being reported for absconding from parole was repeatedly revealed in his conversations with others leading up to the murder and with the victim immediately preceding the murder. There was “a logical, even necessary, connection between this evidence and the otherwise sudden attack on the victim.” 280 Kan. at 129-29. Admitting evidence relating to petitioner’s parole status for the limited purpose of showing petitioner’s motive to commit the murder did not deny fundamental fairness.
As to the other challenged bad acts evidence, the Court finds their admission to be harmless, as that term is used in federal habeas review. Petitioner’s claim of prejudice is based upon his erroneous belief that “the jury was presented with a close question whether the petitioner participated in the crime or not.” Dk. 1, p. 13. To the extent the evidence was irrelevant, it had no tendency to sway the jury on any issue before them. Nor was the evidence so prejudicial that it would have incited the jury’s emotions, leading them to convict based on passion or prejudice. Having reviewed the record, the Court finds that admission of the evidence did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 777, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
C. Aiding and Abetting Instruction
Petitioner contends that his due process rights were violated by Instruction Number 15 because it confused the jury and lowered the State’s burden of proof, permitting the jury to find him guilty of premeditated first-degree murder even absent proof of specific intent of premeditation. That instruction stated:
A person who intentionally aids or abets another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.
280 Kan. at 132. See PIK Crim.3d 54.06 (Responsibility for Crimes of Another—Crime Not Intended). The jury was also instructed on aiding and abetting another to commit a crime with intent to promote or assist in its commission. See Instruction No. 14; PIK Crim. 3d 54.05.
1. State Court Holding
The Kansas Supreme Court found that the district court erred in giving Instruction Number 15 because it amounted to a felony murder instruction that lacked any instruction on an underlying felony, such as aggravated battery. Engelhardt, 280 Kan. at 131-34. But the court found that error to be harmless, stating:
The overwhelming evidence in this case demonstrated that Engelhardt was guilty of either intentionally murdering the victim or aiding and abetting the intentional murder. The victim was stabbed approximately 55 times, and Engelhardt was clearly involved. He was not an innocent bystander. The jury instructions and the evidence, considered as a whole, did not mislead the jury, even if the instructions were in some way erroneous. (Citation omitted.).
280 Kan. at 133-134.
2. Habeas Review
Petitioner must demonstrate that the instructional error “so infected the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). “ ‘A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” Boyde v. California, 494 U.S. 370, 378, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), quoting Cupp, 414 U.S. at 146–47. Due process requires that every element of a crime be established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). But erroneous jury instructions that omit an element of an offense are subject to harmless-error analysis. Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827 (1999). So even assuming constitutional error, habeas relief is unavailable unless that error had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 627.
Here, even assuming that giving the challenged instruction was constitutional error, petitioner fails to show that it had a substantial and injurious effect or influence in determining the jury's verdict. The jury was properly instructed in Instruction 14 on intentionally aiding or abetting another to commit a crime with intent to promote or assist in its commission, and was properly instructed in Instruction 26 that the State had the burden to prove the defendant’s guilt beyond a reasonable doubt. Petitioner has not shown how the presence of Instruction 15, which deals with unintended but reasonably foreseeable crimes, could have contributed to the jury’s finding him guilty of first degree murder, which was clearly stated to be an intentional crime. Nor has petitioner shown how the absence of this Instruction may have led the jury to find him not guilty of first degree murder. Petitioner has not pointed to evidence that could rationally lead the jury to find that petitioner either killed Michael unintentionally or did not aid and abet an intentional murder. In this court’s view, no reasonable person could conclude that the erroneous instruction had any substantial or injurious effect on the jury’s verdict. See generally Neder.
D. Smith’s Polygraph Test Results
Petitioner contends that his due process right to cross-examine witnesses was violated by the court’s excluding the results of Brian Smith’s polygraph examination. Petitioner contends that these results are “critical impeachment material.”
In his original statement to police, Brian took the blame for killing Michael; in a later interview, Brian said Engelhardt had tried to stop him. He then changed his story to say that Engelhardt stabbed Michael in the chest and cut his throat. Apparently, police eventually told Brian that his inconsistent statements meant he would have to take a polygraph examination. However, the polygraph test was not administered until after he had entered into his plea agreement, and the agreement made no provision for it. The ...