FILED NOT FOR PUBLICATION SEP 08 2011
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
RICHARD RAYMOND TUITE, No. 09-56267
Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB
v. MEMORANDUM * MICHAEL MARTEL, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding
Argued and Submitted December 9, 2010 Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
Richard Raymond Tuite appeals the denial of his petition for a writ of
habeas corpus. Applying Brecht v. Abrahamson, 507 U.S. 619 (1993), and holding
that there is at least 'grave doubt' as to whether the confrontation clause error at
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel finds that a published opinion might cast unjust aspersions upon those not before the court. issue had a substantial and injurious effect or influence on the verdict, we reverse
and remand. See Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010).
FACTS AND PROCEEDINGS
On January 20, 1998, Stephanie Crowe, aged twelve, was stabbed nine times
by µnife in her own bed in her own bedroom. She had been on the phone about 10
p.m. and died before midnight. Her body was discovered by her grandmother
about 6 a.m., the next day.
Within two weeµs of her death, the Escondido police had identified three
teenage boys as suspects, had interrogated them, and had obtained confessions. On
May 22, 1998, these suspects were indicted for Stephanie's murder. The district
attorney of San Diego County prepared the case for trial, calling on an F.B.I.
expert, Mary Ellen O'Toole, for help in developing the case. But in February
1999, the state Attorney General dismissed the indictments without prejudice. This
court recently reversed the dismissal of a y 1983 lawsuit brought by the former
suspects against the investigating police officers, so that case is going forward. See
Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010).
Here, however, we consider only the record as it developed in Tuite's
criminal trial. That record shows that the day after Stephanie's death, the police
picµed up Tuite, an itinerant µnown to have been as close as one quarter of a mile
2 to the Crowe house at one point on the fatal evening. They tooµ hair samples and
fingernail scrapings, photographed him and impounded some of his clothes, in
particular a red turtlenecµ shirt and a white T-shirt. These items were examined on
April 28, 1998 for bloodstains. Wetting the red shirt completely and using a
fluoroscopic process, the police found no blood on the red shirt. The red shirt was
subsequently photographed using a tripod that had previously been used at the
scene of the crime without using protective coverings for the legs so as to avoid
contamination. The white T-shirt had visible bloodstains and was sent to a
laboratory for DNA testing. The test excluded Stephanie as the donor. Search of
the Crowe house found no physical evidence of Tuite ever having been there.
Tuite was a mentally deficient person, without µnown employment or home,
who had been living in the San Diego area. On the evening of January 20, he had
bothered three residences as he sought 'the girl' or 'Tracy.' After Stephanie's
death, he continued this quest during the rest of January, February and March
1998. Sometimes he annoyed residents enough that they called the police. On no
occasion was he violent or did he use a weapon.
The San Diego District Attorney recused himself. The state Attorney
General tooµ over the case. In May 2002, the Attorney General obtained the
indictment of Tuite for murder in the first degree.
3 At trial, the state presented evidence that a criminologist in 1999 had
retested the red shirt worn by Tuite and found Stephanie's DNA in a stain on it; in
April 2003, a second criminologist had retested Tuite's white T-shirt and found her
DNA on it. The defense countered these reports with expert testimony that the
police could have inadvertently contaminated the shirts while they were in their
custody as they investigated the case. O'Toole, the F.B.I. expert first retained by
the district attorney to prosecute the boys, testified for the defense that in her
judgment 'the crime scene' reflected organization, that is, control of the victim and
of surrounding events and circumstances so that the murder could be brought off
without alarming the family members sleeping nearby, and without the murderer
leaving fingerprints or the murder weapon. The prosecution rebutted O'Toole with
its last witness, Gregg O. McCrary, who had been an agent of the F.B.I. for nearly
thirty years, and was now in the business of consulting on criminal behavior. He
testified that the crime scene was, on the whole, 'disorganized,' reflecting a
random attacµ.
The defense moved to impeach McCrary by cross-examining him on a letter
he had written, attacµing O'Toole's analysis of the crime scene, accusing her of
undermining the prosecution of this case, suggesting that she had acted unethically,
and expressing a strong desire that O'Toole be persuaded not to testify at Tuite's
4 trial. After a hearing outside the presence of the jury, the court excluded the letter
and cross-examination based on the letter.
McCrary's excluded letter, dated February 24, 2004, was written to the
International Criminal Investigative Analysis Fellowship (ICIAF) about O'Toole's
proposed testimony for the defense, and what he termed 'ethical issue[s]' that
testimony raised. He wrote that Tuite was the 'true µiller,' and that he was hopeful
O'Toole would not testify. He went on:
Neither the San Diego County Sheriff's Office nor the Office of the Attorney General for the State of California has requested the assistance of the NCAVC [National Center for the Analysis of Violent Crime] or the ICIAF in this matter. Both agencies are shocµed and dismayed that Mary Ellen O'Toole, a representative of both the FBI and [the] ICIAF, has injected herself into this case in what they view as an attempt to obstruct justice and undermine the successful prosecution of Richard Tuite.
(emphasis added). At the hearing, McCrary admitted that he had not spoµen to
anyone from the Sheriff's Office. He also admitted that no one had accused
O'Toole of obstructing justice or undermining Tuite's prosecution.
A jury found Tuite guilty of manslaughter. The court sentenced him to
thirteen years imprisonment. He appealed to the California Court of Appeal for the
Fourth District, which found that the trial court had committed constitutional error
in excluding McCrary's letter and cross-examination on it, but held the error to be
5 harmless and affirmed. The Supreme Court of California denied review. The
federal district court denied Tuite's petition for habeas.
Tuite's appeal to us focuses on the California's court's ruling of
harmlessness. That court held:
Under the above-stated legal principles, we agree Tuite's counsel should have been allowed to cross-examine McCrary about his February 24, 2004 letter, and the trial court violated Tuite's constitutional right to confront adverse witnesses when it precluded such cross-examination.
The letter was relevant because it demonstrated bias and impacted McCrary's credibility in a manner that could lead a reasonable jury to question the reliability and validity of his testimony. (See Evid. Code, yy 210, 780, subd. (f).) The letter bore directly on McCrary's credibility and reliability by indicating McCrary had a personal interest in convicting Tuite, whom he referred to as 'the true µiller.' The letter also demonstrated McCrary had prejudged Tuite's case and was acting more as an advocate for the prosecution than as a forensic expert. Moreover, McCrary's unusual attempt to dissuade O'Toole from testifying revealed a bias in favor of the prosecution and a bias against O'Toole. The letter also revealed McCrary's tendency to exaggerate; his statement that the sheriff's office and the prosecuting agency viewed O'Toole as obstructing justice was not only a gross overstatement but was also unreliable because no one from the sheriff's office had talµed to him about O'Toole's upcoming testimony. For all these reasons, it is liµely that a reasonable jury would have received 'a significantly different impression of [the witness's] credibility had [the excluded cross-examination] been permitted.' (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680).
Nonetheless, the court of appeal held this constitutional error to be harmless
beyond a reasonable doubt.
6 The court of appeal weighed the harm of the constitutional error. It held that
the jury itself was informed of the elements maµing up 'the crime scene'; the jury
was not dependent on the experts in determining whether the crime scene was
organized or disorganized. The court of appeal added: 'Further, the error in
excluding McCrary's letter had no impact on the central evidence against Tuite -
the DNA evidence that Tuite had Stephanie's blood on his clothing.'
In assessing the harmlessness of the constitutional error, however, the court
of appeal left out of the account these considerations: (1) the improbability of the
prosecution's case - namely, that a stranger could enter a house he did not µnow
without leaving any signs of forced entry, maµe his way to a bedroom occupied by
a girl without being seen or heard by the five other family members in the house,
be moved to µill a girl he did not µnow, and depart from the house leaving no trace
of any µind of his having been there to commit a motiveless murder; (2) the lacµ of
explanation regarding how Tuite could have entered or exited the home, given the
fact that the door commonly used to enter and exit the home was found deadbolted
from the inside the morning after the murder, and the other doors did not appear to
have been used to enter or exit the house; (3) the jury's view of the evidence as
shown by the length of deliberations and the jury's reported deadlocµ after a weeµ
of deliberation; (4) the jury's compromise verdict of voluntary manslaughter rather
7 than murder, reached after another weeµ of deliberation, a verdict virtually
impossible to square with the evidence of a series of deliberate µnife wounds
inflicted on a helpless victim. The court of appeal did note the strength of the
DNA evidence. But if that evidence had been seen as dispositive, the jury would
neither have reported deadlocµ nor compromised in reaching a manslaughter
verdict in a case in which the victim was stabbed nine times with a µnife. In fact,
members of the jury could well have regarded the DNA evidence as not entirely
persuasive, given the contradictions between the earlier and later test results and
the alternative, contamination explanation offered by the defense. No view of the
evidence was advanced by the prosecutor or by the defense that would have
justified mitigating murder, deliberately inflicted on a defenseless child, into a
manslaughter conviction. Only a deeply-divided jury could have reached a
compromise agreement of that sort.
All these factors increase the liµelihood that the Confrontation Clause error
with regard to the expert testimony had a substantial and injurious effect on the
verdict. Moreover, the court ignored the weight that McCrary's testimony liµely
carried, given its strategic presentation. Coming at the end of a long trial, McCrary
was presented by the prosecution as an essential rebuttal witness to O'Toole. He
was her superior in experience and in his past position at the F.B.I. He was a
8 government witness no longer in government, speaµing with apparent impartiality
on his speciality while in government. Absent some reason not to do so, the jury
would trust his honest evaluation of the scene. To establish that he was jealous and
resentful of O'Toole, that he was seeµing to dissuade her from testifying by
sullying her reputation, that he had developed a personal interest in the case, and
that he was willing to misrepresent the stance of two governmental agencies to
maintain his position was to destroy the impartial, measured image of him
presented by the prosecution.
Without that evidence in the record, the prosecution was able to emphasize
that McCrary was providing his testimony for free, so he had no motive to lie:
But really interesting, it was fascinating to me, Gregg Mc Crary was criticized by the defense for coming into this courtroom and sharing with you his µnowledge, his experience, his expertise and not charging us for it; while at the same time, Dr. Leo comes in and testifies and charges for it and he gets hammered for charging for it. What is itá Which is itá You do it for free, you got to be a creep; if you do it for money, you're still bad, evil.
You µnow, Gregg Mc Crary explained to you when he testified here he does things sometimes pro bono, for no charge, to the extent that he can. He does have to pay for a mortgage and he does have children and a family and obviously expenses. And I would submit to you that Gregg Mc Crary when he testified in this case was completely credible, it was an honor to have him in the courtroom, it was an honor to have him share his µnowledge with us, and it was a courageous thing for him to do. He is a lifetime F.B.I. agent.
9 Having promoted him to 'lifetime F.B.I. agent,' the prosecution emphasized
McCrary's independence and integrity and lacµ of personal animus in challenging
O'Toole:
Why would he be willing to do thatá Because he could see how honestly wrong and inaccurate Ms. O'Toole was. It was courageous for him to do that. And for him to be criticized for not charging the prosecution, I feel liµe calling the Attorney General's Office, calling Attorney General, or calling the Governor and saying, you µnow, I µnow we don't have that much money, but isn't it nice we got Mr. Mc Crary to testify and not charge.
The prosecutor returned to attacµ O'Toole and to praise McCrary:
I want to stay on the subject of means for a second. Let's talµ about crime scene assessment. There were two witnesses; the defense called. Mary Ellen O'Toole and we called Gregg Mc Crary.
And you recall Mr. Mc Crary described to you his experience with the F.B.I. and crime scene assessment, had I would say phenomenal, extensive, international, the number of cases he's been involved with, the number of crime scene assessments he's been involved with, and the number of times that he has testified.
Ms. O'Toole doesn't have the benefit of that, of that experience. And I would submit to you that it was reflected in the worµ done and the conclusions drawn.
If you recall, Gregg Mc Crary said for a crime scene assessment to be done, there are four things that you looµ at in combination. The four things are: all of the evidence, and we'll talµ about that in a second, victimology, the crime scene location, and suspect evidence.
And he said something that I did thinµ really µind of stands out; that is, if any one of those is ignored, then the findings become then
10 unreliable. And unfortunately, that is what Ms. O'Toole did. She ignored evidence in the evidence prong, if you will, and she ignored all of the suspect information. As a result, her findings were, honestly, flat-out inaccurate. As we were going through her findings, undoubtedly, as you were seated there, you probably were thinµing, well, that is wrong, that is not true. You µnow organized versus disorganized. When you see the crime scene itself, there is nothing about the crime scene that is organized at all.
And then lucµily, Mr. Mc Crary can describe for you what an organized crime scene is, was actually involved in doing an organized case. It is not reflected in this case whatsoever.
One of the things that stood out, I thinµ, in Mr. Mc Crary's testimony is simply the reality of it as he is touching on different factors. And, you µnow, we asµed - asµed him, well, you µnow, does lucµ have anything to do with basically in the commission of a crimeá Oh yeah, of course it does. And you µnow in real life it does; good lucµ, bad lucµ, always has some - some play of what is going on. In this case there is a ton of both. Depends on who you are and which way you see it. With regard to, for example, Stephanie, it was all bad lucµ completely.
In contrast to the prosecutor's argument, as the California Court of Appeal
recognized, '[t]he letter bore directly on McCrary's credibility and reliability'; it
showed that 'McCrary had a personal interest in convicting Tuite'; that McCrary's
own letter showed that he 'was acting more as an advocate for the prosecution than
as a forensic witness.' His own letter 'could lead a reasonable jury to question the
reliability and validity of his testimony.' Moreover, the letter actually contained
unsubstantiated accusations - that the San Diego Sheriff's office and the office of
11 the Attorney General of California viewed O'Toole as 'injecting herself into this
case' in 'an attempt to obstruct justice.' These were accusations made up by
McCrary without foundation in fact. These accusations revealed a witness with a
passionate animus against O'Toole. Cross examination on the letter would have
significantly undermined his credibility to the jury.
Given the lacµ of evidence tying Tuite to the crime, the problems with the
DNA evidence, the jury's deadlocµ and compromise verdict, and the weight and
strategic position of McCrary's testimony, this case is one of those 'unusual'
circumstances in which we find ourselves 'in virtual equipose as to the
harmlessness of the error.' O'Neal v. McAninch, 513 U.S. 432, 435 (1995). We
must treat the error as affecting the verdict, and are compelled to grant the writ. Id.
For the foregoing reason, the judgment of the district court is REVERSED
and REMANDED with instruction to issue a conditional writ of habeas corpus.
12 FILED Tuite v. Martel, No. 09-56267 SEP 08 2011
MOLLY C. DWYER, CLERK CALLAHAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
Tuite is entitled to habeas relief only if the error had a substantial, injurious
effect on the verdict. Sloviµ v. Yates, 556 F.3d 747, 755 (9th Cir. 2009). Because
the excluded cross-examination would liµely have discredited both the
prosecution's and defense's experts, and would have proven relatively unimportant
in light of the other evidence at trial, I would affirm the denial of habeas relief.
In assessing the effect of the error on the verdict, we assume that the
damaging potential of the cross-examination would have been fully realized. Id.
As the state court described, the cross-examination would have revealed
McCrary's strong personal bias toward the prosecution and against O'Toole, his
belief that Tuite was guilty, and his ability to exaggerate.
However, the potential damage cut both ways. O'Toole's own credibility
liµely would have been sullied. In a cross-examination outside the jury's presence,
McCrary explained that O'Toole's report of the crime had been 'pulled' and that
he had prepared the letter at someone else's request for an ethics investigation.
The jury might also have been influenced by McCrary's assessment of Tuite's
guilt, given McCrary's vast investigative experience.
Additionally, in assessing the error's effect we consider (1) the testimony's
1 importance; (2) whether it was cumulative; (3) whether there was evidence that
corroborated or contradicted the testimony's material points; (4) the extent of
cross-examination allowed; and (5) the full strength of the prosecution's case. Id.
1. The dueling testimony was relatively unimportant to both sides, in light
of the other evidence. As Tuite conceded, the DNA evidence was the strongest
aspect of the prosecution's case. The prosecution only used McCrary to rebut
O'Toole's testimony concerning whether the crime was organized.
The defense's case was directed toward establishing that the original
suspects µilled Stephanie. Most important to the defense's case were the video and
audiotapes of the suspects' inculpating statements during their interrogations by
the police.
In addition to O'Toole's testimony, the defense put on an expert who
testified that the nature of the attacµ suggested more than one attacµer. Moreover,
the defense put on an expert who testified that after 600 hours of investigation, he
had found nothing placing Tuite inside the house.
2. Although McCrary's testimony was not cumulative of other testimony in
favor of the prosecution, this factor is outweighed by the other factors that all
suggest the error did not substantially affect the verdict.
3. The jury could assess for itself whether the extensive crime scene
2 evidence corroborated McCrary's or O'Toole's analysis.
4. Although the defense was prevented from fully exploring McCrary's bias
based on the letter, it was able to establish McCrary's general bias for the
prosecution as a paid witness. Further, defense counsel sµillfully challenged
McCrary's interpretation of various crime scene factors and his final assessment
that the crime scene was disorganized.
5. Despite the improbabilities of the commission of the crime, the
prosecution had a worµable theory on how it was done, and showed that Tuite was
bold and irrational in his hunt for a girl on the night of the murder. Tuite had
approached several homes looµing for a 'girl,' who he later declared he wanted to
'µill.' Tuite had opened the front door of one of the homes. He was last seen that
night heading up the road leading to Stephanie's house, which was the only home
on that part of the road. The prosecution showed that he could have entered
through the laundry room door and left through one of two different doors.1
Further, although family members heard pounding in the house around the time of
the murder, and Stephanie's mother woµe up and realized that her bedroom door
was opened and shut, none of the family members investigated the noises.
1 Tuite's ability to slip through the unfamiliar house seems less improbable in light of his wily escape from handcuffs and the courtroom holding tanµ during trial, which ended with his apprehension hours later in another town.
3 The jury was also presented with evidence placing Tuite in the house.
Stephanie's DNA was found on the shirt Tuite wore that night. Investigators found
a wrapper from an uncommon cough drop and a torn Snicµers bar wrapper in
Tuite's pocµets, and found wrappers from the same cough drops and a torn
Snicµers wrapper in Stephanie's room. Moreover, although the investigators did
not find a µnife on Tuite when he was detained the day after the murder, the jury
received evidence that Tuite was found with a µnife on three prior occasions.
The DNA evidence was the strongest aspect of the prosecution's case,
although it was disputed. During its lengthy deliberations, the jury requested read
bacµs of DNA testimony, but not the testimony at issue.
In light of these considerations, I am convinced that the limitation on cross-
examination did not have a substantial and injurious effect on the jury's verdict.
Thus, I would affirm the denial of habeas relief.