FILED
NOT FOR PUBLICATION MAR 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
SHONDEL LAMAR LARKIN, No. 09-56264
Petitioner - Appellant, D.C. No. 2:09-cv-02034-DSF-CT
v.
MEMORANDUM *
JAMES YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 18, 2011
Pasadena, California
Before: ALARCMN, RYMER, and BYBEE, Circuit Judges.
Shondel Lamar Larµin, a state prisoner, was convicted of attempted forcible
rape, first degree residential burglary, criminal threats, and assault with intent to
commit a felony. Larµin appeals the district court's final judgment and order
*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissing with prejudice his habeas corpus petition filed pursuant to 28 U.S.C.
y 2254. We have jurisdiction under 28 U.S.C. y 2253(a), and we affirm.
I
Larµin contends that the trial court violated his constitutional right to
confront the witnesses against him when it permitted Dr. Charlotte Word, a former
laboratory director, to testify about her opinion that Larµin could not be excluded
as a donor of DNA taµen from a leather watchband found in the victim's bedroom
because Dr. Word's expert opinion was based on the results of DNA testing she
had not performed but, instead, had reviewed after the fact. Assuming without
deciding that a violation of Larµin's Sixth Amendment Confrontation Clause rights
occurred, we hold that Larµin did not suffer prejudice. See United States v.
Ortega, 203 F.3d 675, 682 (9th Cir.2000) ('Confrontation Clause violations are . . .
subject to harmless error analysis.'); Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993) (explaining that habeas relief is available only where 'constitutional error
of the trial type' resulted in 'actual prejudice').
The prosecution bears the burden of showing that Confrontation Clause error
was 'harmless beyond a reasonable doubt.' United States v. Gillam, 167 F.3d
1273, 1277 (9th Cir.1999). 'An assessment of harmlessness cannot include
consideration of whether the witness' testimony would have been unchanged, or
2
the jury's assessment unaltered, had there been confrontation; such an inquiry
would obviously involve pure speculation, and harmlessness must therefore be
determined on the basis of the remaining evidence.' Coy v. Iowa, 487 U.S. 1012,
1021-22 (1988). 'Whether such an error is harmless in a particular case depends
upon a host of factors, . . . includ[ing] the importance of the witness' testimony in
the prosecution's case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution's case.' Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986).
Here, the prosecution's case connecting Larµin to the crimes of which he
was convicted consisted of eye-witness testimony from two victims, evidence of
past sexually-driven conduct to demonstrate intent and motive, and fingerprint
evidence. DNA evidence was also introduced to demonstrate that Larµin could not
be excluded as the person who had left the watch wristband in the apartment of the
assault and attempted rape victim. The latent print evidence showed that Larµin's
prints matched a latent fingerprint lifted by the police from the bacµ door and a
palm print lifted from the inside µitchen window of that victim's apartment. The
DNA evidence was based on genetic material obtained from the interior wristband
3
of the watch found in the apartment. That genetic material was sent to an outside
laboratory for analysis. Dr. Word was not involved in the testing of the DNA
obtained from the wristband. She testified that at least three individuals were
possible donors of the DNA and that Larµin could not be excluded as a source.
The defense called witnesses to call into question the victim's identification
of Larµin; a latent fingerprint expert to testify about the error rate in fingerprint
comparison identification; an expert on witness identification, who discussed
problems with cross-racial identifications; and Larµin's talent agent, who testified
about Larµin's worµ as a model in print and television advertisement campaigns.
The defense did not call witnesses regarding DNA evidence, but it was permitted
to subject Dr. Word to cross- and re-cross- examination, eliciting testimony from
Dr. Word that the quality of the sample obtained from the wristband was not good,
that she agreed 'absolutely' that it was difficult to get reliable results from such a
sample, and that the results obtained were 'very weaµ.'1
Although Dr. Word's testimony about the results of DNA tested from the
wristband was the only evidence potentially placing Larµin in the victim's
bedroom, the finger- and palm- print evidence was sufficient to place Larµin at and
1
Although the prosecution did not seeµ to have admitted the report of the
DNA test results into evidence, the defense did move some pages of the report into
evidence.
4
inside of the victim's apartment. The remaining evidence and the overall strength
of the prosecution's case was sufficient to render any error related to the DNA
evidence harmless. See United States v. Norwood, 603 F.3d 1063, 1069 (9th Cir.
2010) (concluding that, although the Government conceded the admission of sworn
affidavit violated the defendant's Sixth Amendment rights, the error was harmless
because the evidence was not offered to prove an element of the offense, was not
the sole evidence of any relevant fact, and was cumulative); cf. also United States
v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (affirming denial of
sufficiency of the evidence claim and quoting Jacµson v. Virginia, 443 U.S. 307,
319 (1979), regarding the obligation to 'construe the evidence 'in the light most
favorable to the prosecution,' and only then determine whether 'any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.'').
II
We decline to expand the certificate of appealability and include Larµin's
uncertified claim that defense counsel rendered ineffective assistance by failing to
call a surrebuttal witness to refute testimony regarding an eyewitness
identification. Larµin has not made a substantial showing that reasonable jurists
would find the District Court's assessment of his ineffective assistance of counsel
5
claim debatable or wrong, because defense counsel proffered other evidence that
undermined the victim's identification of Larµin from the photographic line-up.
28 U.S.C. y 2253(c)(2); Miller-El v. Cocµrell, 537 U.S. 322, 336 (2003).
Therefore, Larµin's request to expand the certificate of appealability is
DENIED, and the district court's denial of Larµin's habeas corpus petition is
AFFIRMED.
6
FILED
Larµin v. Yates, No. 09-56264 MAR 03 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
RYMER, Circuit Judge, concurring:
I concur in the judgment.