FILED
NOT FOR PUBLICATION MAY 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ELVIK, No. 13-17530
Petitioner - Appellee, D.C. No. 3:04-cv-00471-GMN-
WGC
v.
RENEE BAKER and ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellants.
PETER ELVIK, No. 14-15126
Petitioner - Appellant, D.C. No. 3:04-cv-00471-GMN-
WGC
v.
RENEE BAKER and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted April 14, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges and KRONSTADT,**
District Judge.
The Nevada Attorney General appeals the district court’s order conditionally
granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, challenging his
conviction of open murder and robbery with the use of a deadly weapon.
On appeal, the government does not argue that the district court erred in
determining that the Nevada Supreme Court was unreasonable in holding that the
trial court not was required to give an instruction based on Nev. Rev. Stat.
§ 194.010(2). Instead, the government argues that (1) the district court was
obligated to develop alternative theories to support the Nevada Supreme Court’s
decision, and (2) the district court erred by concluding that the error was not
harmless.
1. The district court was not obligated to develop alternative theories to
support the Nevada Supreme Court’s decision. The Nevada Supreme Court did not
provide a summary decision without reasoning, as in Harrington v. Richter, 562
**
The Honorable John A. Kronstadt, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
2
U.S. 86, 96 (2011), or a decision that failed to address one of the claims, as in
Johnson v. Williams, 133 S. Ct. 1088, 1096-97 (2013). Instead, the Nevada
Supreme Court provided a reasoned decision that addressed all of the key issues in
the appeal. Therefore, the district court did not err by analyzing the rationale of the
Nevada Supreme Court as presented in its reasoned opinion.
2. The trial court’s failure to provide a jury instruction regarding Nev. Rev.
Stat. § 194.010 was not harmless. “Habeas relief is warranted only if the error had
a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)). The Supreme Court has explained:
[I]f one cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not affected. The
inquiry cannot be merely whether there was enough [evidence] to
support the result, apart from . . . the error. It is rather, . . . whether
the error itself had substantial influence. If so, or if one is left in
grave doubt, the conviction cannot stand.
Kotteakos v. United States, 328 U.S. 750, 765 (1946). In other words, we do not
undertake a sufficiency of the evidence inquiry in making this decision. Rather,
we must determine whether the excluded instruction may have had a substantial
influence on the jury’s decision. Additionally, “[w]here the record is so evenly
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balanced that a judge feels himself in virtual equipoise as to the harmlessness of
the error and has grave doubt about whether an error affected a jury [substantially
and injuriously], the judge must treat the error as if it did so.” Merolillo, 663 F.3d
at 454 (internal quotation marks omitted) (alteration in original).
Juries are presumed to follow the instructions given to them by the trial
court. Vitello v. United States, 425 F.2d 416, 422 (9th Cir. 1970). Important for
the jury to decide here was whether Elvik knew right from wrong. Nev. Rev. Stat.
§ 194.010(2) creates a presumption that children between the ages of eight and
fourteen are unable to distinguish right from wrong. Elvik proposed an instruction
based on Nev. Rev. Stat. § 194.010(2), which stated:
All persons are liable to punishment except those belonging to the
following class as it applies to this case:
Children between the ages of eight years and fourteen years, in the
absence of clear proof that at the time of committing the act charged
against them they knew its wrongfulness. Peter Elvik was fourteen
years old on August 31, 1995.
The trial court rejected the instruction. Nevada courts have described the language
of Nev. Rev. Stat. § 194.010(2) as creating a presumption that the defendant lacked
capacity to commit the crime. See Winnerford Frank H. v. State, 915 P.2d 291,
293 (Nev. 1996). Thus, had the trial court given the instruction, the jury would
have been required to presume that Elvik was not liable for punishment of his
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actions, unless the government proved by clear evidence that Elvik knew (at the
time he committed the crimes) that his conduct was wrong. The trial court’s error
completely relieved the government of that burden.
We cannot say, with fair assurance, that the failure to tell the jury about this
presumption did not sway the jury’s verdict. Overcoming the presumption in this
case would have been daunting; the jury could not convict Elvik unless it found by
clear proof that Elvik knew that what he was doing was wrong when he committed
the crime. Instead, because the jury wasn’t told, the jury was never even aware
that acquittal under Nev. Rev. Stat. § 194.010(2) was an option.
The government argues that, even without the instruction, the record
contains strong evidence indicating that Elvik understood the wrongfulness of his
actions. Of course, the government (and the dissent) emphasize the evidence of
Elvik’s understanding. However, this is not a sufficiency of the evidence analysis.
Instead of weighing the evidence, we must ask whether the error was substantial
and injurious. This record includes other evidence that could have led a jury to
conclude that Elvik did not understand that what he did was wrong. The jury was
deprived of the opportunity to follow the judge’s instruction, outlining the
presumption that Elvik did not understand right from wrong. We cannot suggest
that the error was not substantial and injurious. And even if we were conflicted
5
concerning the error’s harmlessness, we are to treat the error as harmful.
Therefore, we agree with the district court in concluding that the failure to provide
a jury instruction on Nev. Rev. Stat. § 194.010 was not harmless.
Because we affirm the district court’s conditional grant of Elvik’s habeas
petition, we do not reach the issues raised in Elvik’s cross appeal.
AFFIRMED.
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FILED
Elvik v. Baker, Nos. 13-17530 & 14-15126 MAY 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KRONSTADT, District Judge, concurring in part and dissenting in part:
I concur with the conclusion of the majority that the district court “was not
obligated to develop alternative theories to support the Nevada Supreme Court’s
decision.” I also agree that defendant’s knowledge of wrongfulness is a
prerequisite to punishment under Nev. Rev. Stat. § 194.010(2). I respectfully
dissent, however, from the conclusion that “[t]he trial court’s failure to provide a
jury instruction regarding Nev. Rev. Stat. § 194.010 was not harmless.”
As the majority observes, “[t]he government argues that, even without the
instruction, the record contains strong evidence indicating that Elvik understood
the wrongfulness of his actions.” It goes on, however, to state that “[t]his record
includes other evidence that could have led a jury to conclude that Elvik did not
understand that what he did was wrong.” It is with this latter finding that I
respectfully disagree.
In my view, the record evidence is not “so evenly balanced” that a judge
could feel “in virtual equipoise as to the harmlessness of the error” or have “grave
doubt about whether an error affected a jury [substantially and injuriously] . . . .”
Merolillo, 663 F.3d at 454 (internal quotation marks omitted) (alteration in
original) (citing O’Neal v. McAninch, 513 U.S. 432, 435, 437-38 (1995)). Instead,
a consideration of the record evidence as a whole supports the conclusion that the
error did not have a substantial and injurious effect or influence on the verdict.
The following record evidence shows that Elvik had a level of sophistication
and understanding that would cause any reasonable jury to conclude that, when he
shot and killed the victim, Elvik knew the difference between right and wrong:
1. After the shooting, Elvik took the victim’s briefcase and handgun. The
briefcase contained the victim’s money clip and the keys to his
vehicle. Elvik then drove the victim’s vehicle from Nevada to
California.
2. After arriving in California, Elvik contacted his 13-year-old girlfriend,
picked her up in the victim’s vehicle, and checked into a motel with
her for the night. He took the victim’s handgun and money clip into
the motel room.
3. The day after the shooting, at approximately 3:00 a.m., California law
enforcement personnel, who had become aware of the events in
Nevada, identified the vehicle outside the motel as the one that
belonged to the victim of the shooting. They contacted the person
working at the front desk of the motel and learned that Elvik was the
guest associated with that vehicle. Shortly thereafter, the person at the
2
front desk called the room in which Elvik and his girlfriend were
staying and told him to flee. Elvik and his girlfriend left the room.
Elvik jumped from the balcony. Although his girlfriend was promptly
apprehended, Elvik evaded law enforcement personnel for the next 14
hours. During that time, he hid the victim’s handgun and money clip.
4. Elvik testified at trial that he later went back and retrieved the
handgun because he “didn’t want nobody to find it. I didn’t want
some little kid to find it, or shoot, you know, or anything like that.”
5. Upon being detained, but prior to his arrest, Elvik gave a false name to
the police. He later told them his actual name.
6. After being apprehended, and given a Miranda warning, Elvik initially
denied any recollection of the shooting. He stated that he had taken
LSD and that this likely clouded his memory. Later in that
interrogation, Elvik admitted to shooting the victim. At trial, Elvik
stipulated that a blood test showed that he was not under the influence
of LSD, and he testified that he had lied when he told the police
otherwise.
7. During his interrogation, Elvik asked whether his actions in Nevada
would result in his confinement in a juvenile hall in Nevada or
3
California. This showed sophistication about the link between where a
crime is committed and the place of any resulting confinement.
8. During his interrogation, Elvik stated that he had considered leaving
the victim’s handgun with Elvik’s friend Stephen. He stated, “I didn’t
want to give it to [Stephen] because I guess he’s like on probation for
doing drugs or something. So I didn’t want him to get in trouble for it
but, you know?” He stated that he then decided to give the gun to
Stephen with the expectation that Stephen would “take it over to
[Elvik’s] mom’s office or whatever or the police station or whatever
he’s going to do with it.”
9. At the time of the shooting, Elvik was 14 years and 11 months old.
Thus, within a month he no longer would have qualified for the
instruction under Nev. Rev. Stat. § 194.010(2).
In my view, a consideration of the other evidence in the record does not
show that the totality of the evidence was “equally balanced” such that a judge
could be in equipoise as to the issue of harmless error. Elvik relies on the following
evidence to support his contrary position:
4
1. During his interrogation, he referred to his mother, who had disowned
him and denied his request to return to her in California, by using a
crude expletive;
2. He stated that he might not have a long life ahead of him because
there might be “some big earthquake” and he might “fall in the crack
and then []die”;
3. He answered some questions with “ah huh” instead of “yes” during
his interrogation;
4. He did not surrender to the police because he was “scared” and did not
“think anyone would believe” him, something consistent with the
recognition that he knew that his conduct was wrongful;
5. During the interrogation, after being told that “everybody’s going to
know exactly what happened” and that this was Elvik’s “chance to fill
in, maybe, a couple of little minor details,” Elvik asked “why does it
matter, whatever I tell you?” However, in context, these words
5
demonstrate that Elvik was asking why he needed to state what he had
done given the evidence the police already had collected1; and
6. At the conclusion of the initial interrogation, Elvik asked if he would
be sent to juvenile hall in Nevada or California. As stated above, this
reflects sophistication. Moreover, even if this implied that Elvik
misunderstood the seriousness of the punishment that might be
imposed for killing the victim, it did not imply that he did not know
that his conduct was wrongful.
I agree with the majority that, “[i]nstead of weighing the evidence, we must
ask whether the error was substantial and injurious.” However, to make that
determination, it is necessary to consider the effect of the error in light of all the
evidence presented to the jury. The question is not whether the jury was “right in
1
After being asked to “fill in the little details” because the police “d[id]n’t
know exactly, you know, step by step what happened,” Elvik asked, “Well, what
does it matter anyway[?]” EOR 1517. After being told that what happened was not
“going to be a real big mystery,” Elvik asked, “Yeah, I know, so why . . . why does
it matter, whatever I tell you?” EOR 1511. Elvik later stated, “Well . . . well, you
obviously already know what happened, so what does it matter what I say?” EOR
1520. Subsequently, after being told that his girlfriend had stated that Elvik told
her that he shot the victim, Elvik responded, “It doesn’t matter anyways.” EOR
1527. Later, after being asked whether the victim fell on his back or on his stomach
after being shot, Elvik stated, “So, even if I do know, what is it . . . who cares?”
EOR 1528. After being told that things were “f***** right now” and that they
were “going to stay that way for awhile,” Elvik asked, “So what’s the difference if
they’re going to stay like that?” Id.
6
their judgment” but is, instead, “what effect the error had or reasonably may be
taken to have had upon the jury's decision.” Kotteakos, 328 U.S. at 764. This
analysis “must take account of what the error meant to [the jury], not singled out
and standing alone, but in relation to all else that happened.” Id.
I agree with the majority that this analysis is not a sufficiency of the
evidence test. See id. at 765. However, all relevant record evidence should be
considered. A conviction may not be overturned on “mere speculation that the
defendant was prejudiced by trial error”; actual prejudice must be suffered.
Calderon v. Coleman, 525 U.S. 141, 146 (1998); see also Fry v. Pliler, 551 U.S.
112, 119 (2007); Brecht, 507 U.S. at 621.
For these reasons, which are based on a review of the relevant record, I am
not persuaded that Elvik suffered actual prejudice because the jury instruction that
he requested was not presented. Given the evidence at trial, I respectfully disagree
that showing Elvik understood the wrongfulness of his actions would have been a
“daunting” task. Instead, a reasonable jury could have reached only the contrary
conclusion.
For these reasons, I respectfully dissent.
7