FILED
NOT FOR PUBLICATION FEB 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN PAUL NELSON, No. 13-55710
Petitioner - Appellant, D.C. No. 5:12-cv-00860-DMG-
MLG
v.
L. S. MCEWEN, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted December 10, 2014
Pasadena, California
Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.
John Paul Nelson appeals the district court’s denial of his 28 U.S.C. § 2254
petition. Nelson contends that his Confrontation Clause rights were violated when
Firefighter Bradley Witt testified that the shooting victim identified Nelson as the
shooter, and that his due process rights were violated by the cumulative effect of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
multiple trial errors. Because the California Court of Appeal’s decision was
neither contrary to, nor an unreasonable application of, clearly established Supreme
Court precedent, nor based on an unreasonable determination of the facts, we
affirm. 28 U.S.C. § 2254(d)(1)–(2).
Nontestimonial statements do not implicate the Confrontation Clause.
Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (citing Whorton v. Bockting,
549 U.S. 406 (2007)). The California Court of Appeal reasonably determined that
the victim’s statement to Firefighter Witt was nontestimonial because the
circumstances objectively indicated that the primary purpose of Firefighter Witt’s
question was to enable police to respond to an ongoing emergency. Davis v.
Washington, 547 U.S. 813, 822 (2006). Firefighter Witt’s one question, “Who shot
you?,” was asked within thirty minutes of the victim being shot, while an
unidentified shooter was still at large. The Court of Appeal also reasonably
concluded that the circumstances surrounding Firefighter Witt’s inquiry lacked the
solemnity and formality associated with a testimonial statement, Crawford v.
Washington, 541 U.S. 36, 51 (2004), as the exchange occurred in the back of an
ambulance while the victim was fading “in and out of consciousness” and
struggling to breathe, and consisted of a brief two-word response to a single
question. The Court of Appeal considered and reasonably applied the relevant
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factors under both Crawford and Davis. 28 U.S.C. § 2254(d)(1); Harrington v.
Richter, 131 S. Ct. 770, 786–787 (2011).
The Court of Appeal’s finding that Firefighter Witt acted with a sense of
immediacy in conveying the victim’s statement to authorities was not based on “an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Firefighter Witt
testified that he did not call the Banning Police Department for one and a half to
two hours after the victim’s statement because he was providing medical care to
the victim. Although Firefighter Witt also testified that he could have used his cell
phone at the hospital to call the police, he also testified that he “immediately”
called the police after he arrived back at the fire station. The Court of Appeal did
not “plainly misapprehend or misstate the record” in making its finding that
Firefighter Witt acted with a sense of immediacy, Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004), and its finding therefore was not unreasonable, id. at 999.
Finally, the Court of Appeal’s conclusion that the cumulative effect of trial
errors did not require Nelson’s conviction to be reversed was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent. 28
U.S.C. § 2254(d)(1). “[C]umulative error warrants habeas relief only where the
errors have ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007)
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(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Court of
Appeal identified multiple errors at Nelson’s trial, including evidence of motive
that lacked foundation, Doyle error, and improper argument concerning the
victim’s absence from trial and medical condition. However, the Court of Appeal
reasonably concluded that the evidence admitted improperly was cumulative of
admissible evidence, brief, or not pivotal to the case. Moreover, there was
considerable admissible evidence that Nelson shot and intended to kill the victim,
including statements from the victim, witnesses, and Nelson himself. Because the
trial errors did not infect the trial with unfairness, and the government’s case was
not weak, see United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996), it
was not unreasonable for the Court of Appeal to conclude that the trial errors did
not result in a violation of due process, cf. Chambers v. Mississippi, 410 U.S. 284,
294, 302-03 (1973).
AFFIRMED.
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