FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC CLAYTON MEROLILLO, No. 08-56952
Petitioner-Appellant, D.C. No.
v. 5:05-cv-00197-
JAMES YATES, Warden PVSP, RGK-FMO
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
September 1, 2011—Pasadena, California
Filed December 12, 2011
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Gloria M. Navarro, District Judge.*
Opinion by Judge Navarro
*The Honorable Gloria M. Navarro, United States District Judge for the
District Court of Nevada, sitting by designation.
20935
20938 MEROLILLO v. YATES
COUNSEL
Tony F. Farmani, Esquire, San Diego, California, for the
petitioner-appellant.
Teresa Torreblanca, Deputy Attorney General, Attorney Gen-
eral of California, San Diego, California, for the respon-
dent-appellee.
Christopher P. Beesley, Deputy Attorney General, Attorney
General of California, San Diego, California, for the respon-
dent-appellee.
OPINION
NAVARRO, District Judge:
Marc Clayton Merolillo appeals the district court’s denial
of his federal habeas petition. Merolillo was convicted in Cal-
MEROLILLO v. YATES 20939
ifornia state court of first degree murder. At trial, the key
issue of whether Merolillo contributed to the victim’s death
from a ruptured dissecting aortic aneurysm was disputed by
three expert witnesses.
Merolillo challenges the admission at trial of the non-
testifying autopsy pathologist’s opinion, claiming violations
of his Sixth Amendment right to confront witnesses against
him. Because we find that Merolillo suffered actual prejudice
from the erroneous admission of the opinion testimony, we
reverse the district court’s denial of Merolillo’s habeas peti-
tion.
I.
On August 29, 1997, Merolillo commandeered a car occu-
pied by an elderly couple, the Chromys, as they waited in a
drug store parking lot for a medical prescription to be filled.
Merolillo struggled with Mr. Chromy and ultimately pushed
him out of the car. Mrs. Chromy, who was sitting in the back
seat, tried to exit but became entangled in the seat belt. She
was dragged along the ground while Merolillo drove, her head
and body striking the pavement and curb. About a quarter of
a mile later, Mrs. Chromy fell free of the car. After a high-
speed chase, the police apprehended Merolillo. Mrs. Chromy
died about one month later at age 78.
The autopsy pathologist, Dr. Garber, testified for the prose-
cution at a preliminary hearing in March 1998. Two months
later, in May 1998, Dr. Herrmann was called to testify for the
defense. Merolillo filed a motion under California Penal Code
section 995. At the August 1999 hearing on that motion,
defense counsel indicated the inconsistencies in Dr. Garber’s
testimony for the prosecution, but the motion was denied.1
1
Section 995, California Penal Code, provides for a motion to set aside
the information or indictment for lack of reasonable or probable cause.
20940 MEROLILLO v. YATES
Dr. Garber’s testimony at the preliminary hearing was
inconsistent and conclusory. He deflected some questions for
his lack of expertise, suggesting that they would be better
directed to “a neurologist or perhaps a neurosurgeon or an ER
physician, because that’s their areas of expertise, and this is
not mine.” When asked to expand on the mechanism by
which brain injury is fatal, Dr. Garber offered the conclusory
assertion that “it just is.” The preliminary hearing judge said
he was “disappointed” in the quality of Dr. Garber’s testi-
mony and noted that it “could not withstand the light of day
beyond a reasonable doubt.”
At trial in January 2001, Dr. Garber was not called to tes-
tify. Rather, the prosecution called two other pathologists to
testify — Dr. Cohen, the head pathologist from the coroner’s
office, and Dr. Bloor, a professor of medicine and pathology
from the University of California, San Diego. The defense
again called Dr. Herrmann.
Dr. Garber was not called to testify2 nor was his autopsy
report admitted into evidence. Nevertheless, over defense
counsel’s repeated objections, Dr. Garber’s opinion was elic-
ited by the prosecution during cross-examination of the
defense expert, Dr. Herrmann. Dr. Herrmann was asked to
explain his disagreement with Dr. Garber’s opinion that head
trauma contributed to Mrs. Chromy’s death. In response, Dr.
Herrmann testified that he believed Mrs. Chromy’s pre-
existing medical conditions likely contributed to the cause of
death, but that neither head trauma nor torso trauma contrib-
uted to her death. Earlier in the trial, the two experts called by
the prosecution had not adopted Dr. Garber’s opinion. Dr.
Cohen had testified that torso trauma may have contributed to
the cause of death, but gave conflicting testimony as to
whether head trauma may have contributed to her death or to
the cause of death. Dr. Bloor testified that torso trauma con-
2
At the time of trial, Dr. Garber was no longer employed by the county
coroner’s office.
MEROLILLO v. YATES 20941
tributed to the cause of death, but that head trauma did not.
Therefore, Dr. Garber’s inadmissible opinion was the only
expert opinion provided to the jury that head trauma definitely
contributed to Mrs. Chromy’s death.
All the pathologists agreed that the immediate cause of
Mrs. Chromy’s death was a dissecting aortic aneurysm, also
called an acute aortic dissection. But they disagreed on
whether the aneurysm was caused by the trauma inflicted dur-
ing the carjacking or whether it developed later, caused by
other factors. The experts testified that an aneurysm can be
caused by long-standing hypertension, atherosclerosis, vari-
ous syndromes, and trauma. Mrs. Chromy had heart disease,
hypertension and severe atherosclerosis, as well as a prior his-
tory of strokes.
Key issues in the medical testimony were: (1) whether Mrs.
Chromy’s brain trauma contributed to the aortic dissection;
(2) whether Mrs. Chromy’s torso trauma contributed to the
aortic dissection; and (3) the significance of the autopsy evi-
dence of bleeding and/or healing — i.e., whether the aortic
tear began thirty days prior to her death as a result of the car-
jacking trauma, or instead developed later as a natural result
of Mrs. Chromy’s pre-existing conditions.
Therefore, both the existence of a Confrontation Clause
violation and the degree of prejudice caused by the admission
of Dr. Garber’s opinion must be determined. We begin with
a discussion of the experts’ testimony, counsel’s closing argu-
ments, the jury deliberations, and the appellate history of the
case.
A. Expert’s Testimony
DR. COHEN
The prosecution’s first expert, Dr. Cohen, testified first as
to Mrs. Chromy’s head and brain injuries. Then, he clarified
20942 MEROLILLO v. YATES
that the immediate cause of Mrs. Chromy’s death was a rup-
tured aneurysm near her heart in the aorta. His exact testi-
mony was as follows:
[Prosecutor]: And let’s step back to the trauma from
the brain.
[Cohen]: Okay.
[Prosecutor]: It is not what ultimately killed her?
[Cohen]: This trauma (indicating)?
[Prosecutor]: Yes.
[Cohen]: It may have contributed. I can’t be certain.
It may certainly have. Are you talking about the
brain injury itself?
[Prosecutor]: Yes.
[Cohen]: It’s possible that it contributed to some
extent. Whether it was 2 percent or 5 percent or 40
percent. It is possible. I don’t know the answer to it.
Aided by a photo of Mrs. Chromy’s preserved heart, Dr.
Cohen described the physical mechanism of the aortic aneu-
rysm. He stated at one point that he agreed with Dr. Garber’s
conclusion that the immediate cause of Mrs. Chromy’s death
was a dissecting aortic aneurysm, a tear in the aorta. When
asked how such a tear happens, he listed more than one possi-
ble cause. However, he prefaced this by explaining that the
most common cause of an aortic tear overall is long-standing
hypertension. Another cause he described as fairly common is
plaque and atherosclerosis on the inner surface of the aorta,
which causes the wall to weaken. This weakness predisposes
a person to having a rupture or a break in the blood vessel.
Finally, he listed other less common causes, such as trauma
MEROLILLO v. YATES 20943
and certain syndromes. At this point, the prosecutor asked
him to confirm that Mrs. Chromy had a history of hyperten-
sion and atherosclerosis, which he did.
Next, the prosecutor attempted to elicit from Dr. Cohen an
opinion as to whether the trauma Mrs. Chromy suffered dur-
ing the carjacking contributed to the aortic tear. His testimony
was as follows:
[Prosecutor]: Now, in this particular case, what
about the trauma that she suffered, the — the beating
she took bouncing on the road? What did that con-
tribute to this tear?
[Cohen]: Well, again, that’s debatable. The trauma
that she sustained 30 days prior clearly did not help
her. And if she had a weakness like this already from
her atherosclerosis — which she did have severe ath-
erosclerosis and she did have hypertension. So she
already had enough to explain a weakness in this
wall. And the trauma certainly did not help her. It
could only have hurt her.
[Prosecutor]: Okay. So is your opinion, then, this
trauma hurt her or aggravated —
[Cohen]: I can’t answer that. I wish I could. I can’t
answer for sure if this trauma actually contributed. It
absolutely did not help her. It could only have hurt
her. And the fact that it’s in relatively close proxim-
ity to her injury, I’m very suspicious of it. And I’m
very concerned that it did contribute. Whether it was
a percent or 5 percent or 40 or 80 percent, I don’t
know. I don’t know the answer to that.
In the preserved heart, Dr. Cohen also observed signs of
bleeding into the inner wall lining of the aorta, which he
opined had existed for days, weeks or even two months before
20944 MEROLILLO v. YATES
death. However, he also acknowledged that the bleeding
could have started minutes before death. In his opinion, this
bleeding was what ultimately dissected the aortic tissue, caus-
ing Mrs. Chromy’s death.
The prosecution concluded Dr. Cohen’s testimony with a
description of how high blood pressure could exacerbate a
person’s propensity for these types of tears, and how blunt-
force injury to the torso causes the tissues to react. When
asked by the prosecution whether significant forces to the
torso, transmitted to the tissues, would cause or start a tear,
Dr. Cohen opined that “[t]hey certainly would not help it, and
they could hurt it.”
The defense opened cross-examination with a recitation of
the admissible findings within Dr. Garber’s autopsy report,
particularly the fact that Mrs. Chromy’s heart exhibited
hypertrophy consistent with long-standing hypertension and
severe atherosclerosis of the aorta. Upon questioning, Dr.
Cohen admitted that 80 or 90 percent of people who suffer a
dissecting aortic aneurysm tend to be hypertensive. He also
testified that Dr. Garber’s autopsy report identified an
enlarged heart, a condition that results from the hypertrophy
that comes with long-standing hypertension.
Defense counsel then cross-examined Dr. Cohen regarding
Mrs. Chromy’s brain injuries. When asked about any correla-
tion or connection between these types of brain injuries and
a dissecting aortic aneurysm, he admitted that he wasn’t
aware of any other cases with such a correlation. When asked
whether he had not just provided an opinion that such a con-
nection did exist in this case, Dr. Cohen then clarified his tes-
timony and retracted his opinion:
[Defense counsel]: Well, you have testified, have
you not, that there is a connection between Miss
Chromy’s brain damage, the subdural, subarachnoid
hematomas, and the dissecting aortic aneurysm?
MEROLILLO v. YATES 20945
[Cohen]: I don’t believe I have today. Between the
pos — the possibility of the trauma to the torso, the
chest trauma, and the dissection, I think I’ve partially
addressed that. But not head trauma and dissection.
[Defense counsel]: So just to clarify, you have not
expressed an opinion today as to whether or not the
head trauma that Miss Chromy experienced was a
contributing factor in her dissecting aortic aneu-
rysm?
[Cohen]: I don’t think I have today, no.
Throughout the rest of Dr. Cohen’s cross-examination,
defense counsel continued to question Dr. Cohen only as to
the admissible factual findings of the autopsy report.
DR. BLOOR
The prosecution’s second expert, Dr. Bloor, agreed that the
immediate cause of Mrs. Chromy’s death was acute aortic dis-
section. When asked about Mrs. Chromy’s thoracic trauma,
he responded, “I consider the trauma to be a contributory fac-
tor to the aortic dissection that was the immediate cause of
death.” He testified that although it is rare for a person to die
of an aortic dissection thirty days after bodily trauma, it has
been noted in medical literature. However, when asked on
cross-examination about the head trauma, he opined that Mrs.
Chromy’s brain injury was not a contributing factor to the
aortic dissection:
[Defense]: So the short answer to my question is that
the injury to her brain did not — was not a contribut-
ing factor to her — in — as a cause of death?
[Bloor]: It was not a contributing factor to what I
consider to be the immediate cause of death, namely,
the dissection through the aortic wall.
20946 MEROLILLO v. YATES
Dr. Bloor testified at length about whether the bleeding
observed from Dr. Garber’s autopsy report was recent or
longstanding. He explained that the actual tear all the way
through the aortic wall was sudden and probably took place
within the last twelve to twenty-four hours of Mrs. Chromy’s
life. However, he believed that the tear probably began at an
earlier stage, and was related to the time of the trauma.
Finally, he testified that Mrs. Chromy’s heart rate was high
and that her blood pressure went through fluctuations in the
period between the carjacking and her death. He concluded
that these fluctuations, combined with Mrs. Chromy’s pre-
existing hypertension, also could have exacerbated the aortic
tear.
DR. HERRMANN
The defense pathologist, Dr. Herrmann, gave his opinion
that Mrs. Chromy died from a spontaneous rupture of a dis-
secting aneurysm of the aorta. He found no connection with
her previous injuries from the carjacking. Dr. Herrmann did
observe that Mrs. Chromy’s high blood pressure predisposed
her to the rupture of the inner lining of the aorta, and that she
had “pretty severe” arteriosclerosis of the ascending aorta.3
He expressed his opinion that dissecting aneurysms of the
aorta rupture more frequently in the presence of arteriosclero-
sis, and certainly more frequently with people who have high
blood pressure.
Dr. Herrmann disagreed with Dr. Cohen’s observation of
an older hemorrhage. He explained that if it were older, it
would then display physical evidence of healing but that
instead, “all of the bleeding is very fresh, and [there is] no
evidence of healing.” “So,” he concluded, “[the tear was]
probably well within 4 days” of Mrs. Chromy’s death. He also
3
Atherosclerosis is the most common form of arteriosclerosis. Sted-
man’s Medical Dictionary 162 (27th ed. 2000).
MEROLILLO v. YATES 20947
stated explicitly that the injuries Mrs. Chromy suffered to her
head had no causal relation to her death.
On cross-examination, despite repeated defense objections,
the court permitted the prosecution to elicit testimony from
Dr. Herrmann about Dr. Garber’s opinion of the cause of
death. Dr. Herrmann disagreed with Dr. Garber’s opinion that
head injuries contributed to Mrs. Chromy’s death from an aor-
tic aneurysm. He also disagreed with Dr. Cohen’s opinion that
bodily trauma contributed to the aneurysm.
Specifically, the following exchange took place:
[Prosecutor]: You’re aware that [Dr. Garber’s] opin-
ion was that this trauma caused to [Mrs. Chromy]
did contribute to her death and cause[d] her death?
You’re aware of that?
[Herrmann]: I believe he said that the head injuries,
in his opinion, contributed to her death. Yes.
[Defense]: Your Honor, I object. Hearsay because
Dr. Garber has not testified. The findings in his
report are relied upon by experts, but the opinion
itself is a matter of his testimony which has not been
presented by the People. We’re not —
[Court]: Overruled.
[Defense]: — in a position to cross-examine Dr.
Garber here.
[Court]: Overruled.
[Prosecutor]: So your opinion — you differ with Dr.
Garber’s opinion about the cause of death in this
case?
20948 MEROLILLO v. YATES
[Herrmann]: Well, let’s see what his — how he actu-
ally states his cause of death. I — it’s been a while
since I looked at it. His conclusion was that death
was caused by ruptured dissecting aortic aneurysm.
And then under “other conditions,” whether he
means that this contributes or not, it’s — he just says
other conditions is blunt-force trauma to the head.
That’s what it says in his autopsy.
[Prosecutor]: Okay. And then on the later page, page
3, the basis of the autopsy findings itself: “Evidence
that the 78-year-old woman suffered from ruptured
dissecting aortic aneurysm which resulted in her
demise. In addition, blunt-force trauma to the head
also contributed to her death.”
[Defense]: May I have a continuing objection, Your
Honor?
[Court]: Sure. Yes.
[Prosecutor]: Is that correct?
[Herrmann]: Shall I —
[Court]: Yes. You can answer. I’m sorry.
[Herrmann]: Yes. That’s what he says. “In addition,
blunt-force trauma to the head also contributed to her
death.”
[Defense]: Your Honor, may I — may I have a con-
stitutional objection on Sixth Amendment grounds?
[Court]: Sure.
[Defense]: Thank you.
MEROLILLO v. YATES 20949
[Prosecutor]: Now — so your opinion differs with
his?
[Herrmann]: Yes. I don’t think the blunt-force
trauma to her head contributed to her death.
[Prosecutor]: And he’s the person who performed
the autopsy?
[Herrmann]: He is.
[Prosecutor]: And he testified at [the] preliminary
hearing that the blunt-force trauma also contributed
— to her body contributed to her death; is that cor-
rect?
[Herrmann]: Yes, he did.
[Prosecutor]: And you differ with that opinion as
well?
[Herrmann]: Yes. Particularly his testimony I would
— I would disagree with.
After this exchange, the prosecutor went on to cross-
examine Dr. Herrmann with the preliminary hearing testi-
mony from 1998. At one point Dr. Herrmann appeared to con-
tradict his prior testimony, though he attempted to explain the
apparent discrepancy. Defense counsel also revisited the prior
testimony on re-direct. Dr. Herrmann stated that where a
patient had pre-existing hypertension, a sudden rise in blood
pressure “could be the last thing to push a person over the
edge,” and that if pushed over the edge, “you would expect
the person to die at that time, to rupture their aneurysm.”
Finally, on further redirect examination, Dr. Herrmann clari-
fied his opinion for the jury:
20950 MEROLILLO v. YATES
[Defense]: In your opinion, Doctor, did Helen
Chromy suffer a tear to her aorta when she suffered
these other injuries to her body?
[Herrmann]: No. She didn’t. There’s no evidence
that that tear took place at that time.
B. Closing Arguments
During closing arguments, the prosecution twice referred to
Dr. Garber’s opinion that head trauma was a cause of death:
[Prosecutor]: [Dr. Garber] had some opinions. And
you’re aware of the opinions indirectly from the wit-
nesses. And I can’t remember which attorney asked
it. It was incidental to what he had done. But his
opinion was basically that he took it from a different
approach. He took it from the approach that the head
injuries caused this. This is the way he saw it. He
had a different expertise, a different way of looking
at it. And we don’t know much more about it.
****
[Prosecutor]: And the doctors did give you some
strong opinions. Dr. Garber was, a cause was the
injury to her head. Dr. Cohen, a cause was the
trauma to her body. And he didn’t go to the head.
That wasn’t how he looked at it. He looked to the
heart, the aorta. Dr. Cohen, however, conceded — he
conceded, “Hey. I didn’t investigate the head. But
I’ll tell you this. It couldn’t have helped.” I can’t say
if there’s — and I can’t remember. I thought it was
5, 10, or 40 percent contribution making, it a cause
at 5 percent. And I frankly can’t remember. You can
always check that out. But he agreed in that sense
with Dr. Garber.
MEROLILLO v. YATES 20951
C. Jury Deliberations
During deliberations, jurors requested to have the medical
testimony of Drs. Cohen, Bloor, and Herrmann read back,
“particularly their medical conclusions contributing to Helen
Chromy’s death.” They also asked the following:
You have instructed us to reach a verdict on murder
or assault & battery; are we forbidden from consider-
ing any other lesser charge, such as vehicular man-
slaughter or 2nd degree murder.
After receiving the court’s answer in the affirmative, the jury
returned a guilty verdict for first degree murder.
D. Procedural Appellate History of Case
Merolillo appealed to the California Court of Appeal,
which issued an unpublished opinion affirming Merolillo’s
murder conviction, filed on November 12, 2002. The Court of
Appeal held that “[t]he court erred in allowing Garber’s opin-
ion to be introduced during the cross-examination of Hermann
[sic] the defense witness. But the evidentiary error relating to
causation was harmless under the Watson or Chapman stan-
dard of review.”4 Merolillo then filed a petition for review in
the California Supreme Court, which was denied, without
comment or citation to authority, on January 29, 2003.
4
Referring to Chapman v. California, 386 U.S. 18, 24 (1967) and Peo-
ple v. Watson, 46 Cal. 2d 818, 836 (1956). The Watson harmless error
standard is the standard applied by California appellate courts in reviewing
non-constitutional magnitude trial errors by determining whether “it is rea-
sonably probable that a result more favorable to the appealing party would
have been reached in the absence of the error.” 46 Cal. 2d at 836. The
Chapman standard provides that a federal constitutional error is not harm-
less unless the court determines that the error was “harmless beyond a rea-
sonable doubt.” 386 U.S. at 24.
20952 MEROLILLO v. YATES
Merolillo filed a habeas petition in federal court. The mag-
istrate judge issued a report and recommendation holding the
trial court erred in admitting Dr. Garber’s opinion, but that the
error was harmless. The district court adopted the findings,
conclusions and recommendations of the magistrate judge on
November 3, 2008, dismissing the petition with prejudice.
The district court judge issued an order granting a certificate
of appealability with respect to one of Merolillo’s claims:
“Whether petitioner was prejudiced by the admission of hear-
say evidence that the victim’s death was caused by brain trau-
ma.”
II.
The district court’s decision on a petition for a writ of
habeas corpus is reviewed de novo. Lambert v. Blodgett, 393
F.3d 943, 964 (9th Cir. 2004). However, the district court’s
factual findings and credibility determinations in the context
of granting or denying the petition are reviewed for clear
error. Id. We may affirm the district court’s decision on any
ground supported by the record, even if it differs from the dis-
trict court’s rationale. Id. at 965; Paradis v. Arave, 240 F.3d
1169, 1175-76 (9th Cir. 2001).
A.
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs the extent of federal review for habeas
petitions such as Merolillo’s that were filed after April 24,
1996. Woodford v. Garceau, 538 U.S. 202, 204 (2003).
AEDPA establishes a highly deferential standard for review-
ing state court determinations for constitutional error. Wood-
ford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam);
Williams v. Taylor, 529 U.S. 362, 386 (2000); Lambert, 393
F.3d at 965. A court is required to deny habeas relief unless
a petitioner shows that the state court decision “was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
MEROLILLO v. YATES 20953
the United States” or “was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Kennedy
v. Lockyer, 379 F.3d 1041, 1046 (9th Cir. 2004). The state
court’s factual findings are entitled to a presumption of cor-
rectness unless the petitioner rebuts the presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A federal court looks “to the last reasoned decision of the
state court as the basis of the state court’s judgment.”
Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007)
(internal quotation marks omitted). “Where there has been
one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground.” Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991). Here, the last reasoned state judg-
ment was that of the California Court of Appeal.
[1] The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him.” Admission of an out-
of-court hearsay statement at trial does not violate the Con-
frontation Clause if the statement possessed “adequate indicia
of reliability.” Ohio v. Roberts, 448 U.S. 56, 65-66 (1980),
abrogated by Crawford v. Washington, 541 U.S. 36 (2004).5
In the usual case, the prosecution must demonstrate that the
witness is unavailable. Roberts, 448 U.S. at 65 & n.7. “[A]
witness is not ‘unavailable’ for purposes of the foregoing
exception to the confrontation requirement unless the pro-
secutorial authorities have made a good-faith effort to obtain
his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25
(1968).
5
Crawford is not controlling here. Because Merolillo did not file a peti-
tion for certiorari, his conviction became final on April 29, 2003, ninety
days after the California Supreme Court denied his habeas petition. See 28
U.S.C. § 2101(c). Crawford is not retroactively applied to cases on collat-
eral review. Whorton v. Bockting, 549 U.S. 406, 421 (2007).
20954 MEROLILLO v. YATES
[2] There is no evidence in the record that an effort was
made to obtain Dr. Garber’s presence at trial. At the time of
trial, Dr. Garber no longer worked for the county coroner’s
office, but the record provides no reason why Dr. Garber’s
presence could not be obtained nonetheless. He was therefore
not shown to have been “unavailable” for trial. See id. His
conflicting and unsupported testimony at the preliminary
hearing formed the very basis for Merolillo’s counsel to
object at the section 995 hearing.
[3] The California Court of Appeal held that the trial court
erred in admitting Dr. Garber’s opinion testimony. Neither the
district court nor the government has seriously challenged the
finding that Merolillo’s right to confront witnesses against
him was violated by the admission of Dr. Garber’s opinion
testimony. Though the state court and the district court held
the error to be harmless, both found that the trial court erred
in allowing Dr. Garber’s opinion to be introduced. We agree
that the trial court erred in admitting Dr. Garber’s opinion.
B.
Even where constitutional error is found, “in § 2254 pro-
ceedings a court must [also] assess the prejudicial impact of
constitutional error” under the Brecht standard. Fry v. Pliler,
551 U.S. 112, 121-22 (2007) (citing Brecht v. Abrahamson,
507 U.S. 619 (1993)); Bains v. Cambra, 204 F.3d 964, 977
(9th Cir. 2000). Habeas relief is warranted only if the error
had a “substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht, 507 U.S. at 637-38 (invok-
ing the harmless error test in Kotteakos v. United States, 328
U.S. 750 (1946)) (internal quotation marks omitted); DePetris
v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir. 2001). The
Supreme Court has explained:
[I]f one cannot say, with fair assurance, after ponder-
ing all that happened without stripping the erroneous
action from the whole, that the judgment was not
MEROLILLO v. YATES 20955
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 to support the result, apart from the phase
affected by the error. It is rather, even so, whether
the error itself had substantial influence.
Kotteakos, 328 U.S. at 765. Where the record is so evenly bal-
anced 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 injuri-
ously], the judge must treat the error as if it did so.” O’Neal
v. McAninch, 513 U.S. 432, 435, 437-38 (1995) (quoting Kot-
teakos, 328 U.S. at 765).
The government argues that the appropriate standard of
review for harmless error is instead derived from this court’s
holding in Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th
Cir. 2005), which analyzed the Supreme Court’s ruling in
Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003). Inthavong
required, “(1) that the state court’s decision was ‘contrary to’
or an ‘unreasonable application’ of Supreme Court harmless
error precedent, and (2) that the petitioner suffered prejudice
under Brecht from the constitutional error.” 420 F.3d at 1059
(emphasis added).
In Fry v. Pliler, however, the Supreme Court squarely
addressed the harmless error standard to be applied by a fed-
eral habeas court and held that Brecht is the applicable test.
551 U.S. at 121. In Pulido v. Chrones, we reaffirmed that
under Fry, “we need not conduct an analysis under AEDPA
of whether the state court’s harmlessness determination on
direct review . . . was contrary to or an unreasonable applica-
tion of clearly established federal law,” and held that “we
apply the Brecht test without regard for the state court’s harm-
lessness determination.” 629 F.3d 1007, 1012 (9th Cir. 2010)
(citing Fry, 551 U.S. at 119-22). In light of Fry and Pliler, we
hold that the Brecht “substantial and injurious effect” standard
20956 MEROLILLO v. YATES
governs our harmless error review in this case. For the rea-
sons discussed below, we conclude that under the Brecht stan-
dard, Merolillo is entitled to habeas relief. We further
conclude that even if Merolillo were also required to satisfy
the AEDPA/Chapman standard, he would, as the state court’s
determination that the error was harmless beyond a reasonable
doubt was an objectively unreasonable application of Chap-
man.
C.
[4] Having reached the conclusion that Merolillo’s Con-
frontation Clause rights were violated, we now consider the
degree to which this violation harmed Merolillo. To guide an
analysis of “substantial and injurious effect,” this court has
applied the five non-exclusive factors propagated by the
Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986).6 See, e.g., Ocampo v. Vail, 649 F.3d 1098, 1114
(9th Cir. 2011); Fowler v. Sacramento Cnty. Sheriff’s Dep’t,
421 F.3d 1027, 1041-42 (9th Cir. 2005); Whelchel v. Wash-
ington, 232 F.3d 1197, 1206 (9th Cir. 2000). The Van Arsdall
factors are: (1) the importance of the witness’ testimony in the
prosecution’s case; (2) whether the testimony was cumulative;
(3) the presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material points; (4)
the extent of cross-examination otherwise permitted; and (5)
the overall strength of the prosecution’s case. 475 U.S. at 684.
Applying these factors, we conclude that the admission of
Dr. Garber’s opinion testimony had a substantial and injurious
effect or influence in determining the jury’s verdict.
6
As the court recognized in Whelchel v. Washington, the appeal in Van
Arsdall was direct rather than habeas corpus, and was subject to the
“harmless beyond a reasonable doubt” standard. 232 F.3d 1197, 1206 (9th
Cir. 2000). “Nevertheless, there is nothing in the opinion or logic of Van
Arsdall that limits the use of these factors to direct review.” Id.
MEROLILLO v. YATES 20957
[5] First, we evaluate the importance of the witness’ testi-
mony in the prosecution’s case. Dr. Garber’s opinion goes
straight to the heart of the case against Merolillo, since causa-
tion was the issue most argued by both counsel. Likewise, the
jury appeared to be focusing on the issue of causation as the
most dispositive element of the criminal charge when it
requested the read back of the expert’s testimony and ques-
tioned whether it was allowed to return a verdict of guilty to
a lesser charge. Dr. Garber’s opinion was also likely given
more weight than an ordinary witness as he was a doctor, the
actual pathologist who conducted the autopsy, and an appar-
ent peer of the testifying experts. See Jinro Am. Inc. v. Secure
Invs., Inc., 266 F.3d 993, 1004 (9th Cir. 2001) (recognizing
that expert statements are “likely to carry special weight with
the jury”). The prosecution’s emphasis on Dr. Garber’s opin-
ion during closing arguments reiterated his “expertise” and
seemed to be offered by the prosecution to break the apparent
three-way tie between the testifying experts. The prosecution
argued that Dr. Cohen could be seen as agreeing with Dr.
Garber’s opinion.
Next, we determine whether the testimony was cumulative.
In Brecht, habeas relief was not warranted where the state’s
references to inadmissible evidence were infrequent and
cumulative of admissible evidence, “evidence of guilt was, if
not overwhelming, certainly weighty,” and other circumstan-
tial evidence also pointed to petitioner’s guilt. 507 U.S. at
639. Error was also held to be harmless in United States v.
Lane, “[i]n the face of overwhelming evidence of guilt.” 474
U.S. 438, 450 (1986) (noting that “the threshold of over-
whelming evidence is far higher than mere sufficiency to
uphold conviction”). Brecht and Lane can be distinguished
from the instant case. In Brecht, the state’s improper refer-
ences “comprised less than two pages of a 900 page tran-
script, or a few minutes in a four day trial in which twenty-
five witnesses testified.” 507 U.S. at 626 (internal quotation
marks omitted). Here, although the record doesn’t show how
long the trial lasted or how many witnesses testified, the
20958 MEROLILLO v. YATES
impact of Dr. Garber’s opinion is nevertheless inadequately
measured in pages or minutes. As the only pathologist who
performed the autopsy, and whose opinion was used by the
prosecution in an attempt to impeach the lone defense expert,
the jury’s focus was likely riveted on what Dr. Garber said in
his report.
[6] Furthermore, Merolillo’s guilt as to murder was not
weighty, much less overwhelming, since the chain of medical
events causing death was clearly disputed and difficult to ver-
ify. Even the two experts called by the prosecution did not
agree with each other regarding the most relevant issues. Only
Dr. Garber’s opinion uniquely supported the prosecution’s
head trauma causation argument, therefore it could not be
cumulative. In Moses v. Payne, this court held that there was
no substantial and injurious effect where references to inad-
missible evidence were cumulative of admissible evidence,
and there was “overwhelming” evidence of guilt. 555 F.3d
742, 755 (9th Cir. 2009). Here, however, and as discussed
above, evidence of Merolillo’s guilt as to causation was far
from overwhelming. Dr. Garber’s opinion, as the only defini-
tive attribution of head trauma, was not cumulative. Although
Dr. Cohen appeared to testify on direct examination that Mrs.
Chromy’s head injury could have contributed to the aortic dis-
section, he later clarified on cross-examination that he had not
given any opinion as to that form of causation. Drs. Bloor and
Herrmann both denied that the head injury contributed to Mrs.
Chromy’s death. As introduced by the prosecutor and verified
by Dr. Herrmann, Dr. Garber stated definitively that “blunt-
force trauma to the head also contributed to her death.” The
closest any of the other experts came to saying this was Dr.
Cohen, who allowed, at most, that “[i]t’s possible that [head
trauma] contributed to some extent [to Mrs. Chromy’s
death].”
[7] Third, Dr. Garber’s opinion was not corroborated by
the testimony of the other experts. Dr. Cohen only appeared
to allow for the possibility of head trauma as a contributing
MEROLILLO v. YATES 20959
factor in his direct examination but then clarified on cross that
he had not actually provided an opinion on that, thereby not
providing much support for Dr. Garber’s definitive opinion.
Nor did any of the experts explicitly contradict Dr. Garber’s
opinion by testifying as to the impossibility of Mrs. Chromy’s
brain injuries contributing to the aortic dissection. Drs. Bloor
and Herrmann simply denied that the brain trauma contrib-
uted.
Dr. Garber’s opinion was likely tempting evidence for the
jury to consider in support of the prosecution’s argument
because of its certainty and simplicity. Dr. Cohen didn’t defi-
nitely state that the torso trauma or the head trauma contrib-
uted to Mrs. Chromy’s death. Dr. Bloor testified that he
considered the torso trauma to be a contributing factor to the
aortic dissection and denied that head trauma contributed. Dr.
Herrmann denied both head trauma and torso trauma as con-
tributing factors to Mrs. Chromy’s death. Even though the
connection between head trauma and an aortic tear required
a logical leap, the jury clearly struggled to make sense of the
voluminous medical testimony.
[8] Fourth, cross-examination of Dr. Garber at trial was
nonexistent because he was never called as a witness and
there is no mention in the record of any efforts to obtain his
presence. His testimony in the preliminary hearing does not
in itself satisfy the objectives of the Confrontation Clause
under pre-Crawford law. See Wilson v. Bowie, 408 F.2d 1105,
1107 (9th Cir. 1969) (citing Barber v. Page, 390 U.S. 719,
725-26 (1968) to reject the contention that “[defendant]’s
right of confrontation was not infringed because his counsel
cross-examined [the witness] at the preliminary hearing”).
[9] Fifth, and finally, the strength of the prosecution’s case
certainly turned on the issue of causation. The thirty-day
delay between the incident and Mrs. Chromy’s death was the
weak link in the prosecution’s case. Additionally, the jury’s
request for a read back of expert testimony illustrates the dif-
20960 MEROLILLO v. YATES
ficulty presented by the experts’ labyrinthine medical testi-
mony. See United States v. Blueford, 312 F.3d 962, 976 (9th
Cir. 2002) (pointing out that “the jury asked for readbacks of
[witnesses’] testimony while it was deliberating, so it evi-
dently did not regard the case as an easy one”). The ultimate
cause of death was not simple to convey, and the mechanism
of an aortic dissection required elaborate detail. Connecting
the aortic dissection to both Mrs. Chromy’s pre-existing con-
ditions and to the injuries she suffered was a complicated task
for the experts who could not even agree among themselves.
It was patently more difficult for the jury. The jury even asked
whether they were forbidden from considering a lesser
charge.
Not only did the experts’ opinions differ as to the effect of
the head trauma and torso trauma as contributing factors to
the aortic dissection, but the explanatory testimony of the
experts defied easy comprehension as well. The attorneys and
experts both demonstrated difficulty in setting forth the
autopsy findings regarding bleeding and healing. It is doubtful
that the jury comprehended the significance of the different
presentations of the blood and how that related to causation.
None of the experts denied that Mrs. Chromy also suffered
from hypertension and severe atherosclerosis, which could
also lead to a natural cause of death by aortic dissection.
However, even descriptions of the effects of hypertension and
atherosclerosis were often muddied by the experts’ use of
alternating medical vocabulary — arteriosclerosis versus ath-
erosclerosis, hypertension and high blood pressure, cardiome-
galy and enlarged heart, hemorrhage and hematoma, torso and
thoracic, dissection and tear, and ventricles in the brain versus
ventricles in the heart, etc. Also, the disputed significance of
the various types of bleeding (e.g., subarachnoid, subdural,
clotted, brown, intimal) and healing did little to untangle the
asserted chains of causation.
Whether Mrs. Chromy’s aorta began to tear only as a result
of the carjacking trauma or tore spontaneously merely
MEROLILLO v. YATES 20961
because of her pre-existing conditions such as hypertension,
the jury could not have reached a degree of certainty beyond
what the testifying experts declared. Not only did the experts
differ in their explanation of when the tear began, they dif-
fered in their interpretation of the autopsy findings and the
significance to be attached to each manifestation of Mrs.
Chromy’s injuries.
[10] With all of these evidentiary challenges, there is little
question that at least some jurors likely resorted to shortcuts
in parsing the testimony. The jurors had several shortcuts to
choose from in determining causation, and each had a con-
tested degree of certainty. Dr. Bloor stated with certainty that
torso trauma contributed to the aortic dissection, however Dr.
Cohen stated that only the aortic dissection was certain, and
Dr. Herrmann stated with certainty that neither trauma con-
tributed to the aortic dissection. Dr. Garber’s opinion, then,
offered the sole certainty that head trauma contributed to Mrs.
Chromy’s death.
[11] Therefore, we have “grave doubt” that the error in
admitting Dr. Garber’s opinion was harmless, and hold that
Merolillo suffered prejudice under Brecht from the Confron-
tation Clause violation.
D.
[12] Though our conclusion that the Brecht standard is met
is alone sufficient to warrant habeas relief in this case, we
note that the error would also warrant relief under the govern-
ment’s proposed test, because the state court’s application of
Chapman was an objectively unreasonable application of the
Supreme Court’s Chapman standard. Under Chapman, “be-
fore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” 386 U.S. at 24. For the same rea-
sons discussed above, we cannot say that the admission of Dr.
Garber’s opinion was harmless beyond a reasonable doubt. In
20962 MEROLILLO v. YATES
fact, as discussed above, we have “grave doubt” that the error
was harmless. As in Chapman, it is impossible to say that the
State demonstrated, beyond a reasonable doubt, that Dr. Gar-
ber’s opinion did not contribute to Merolillo’s conviction.
Because of the inherent weaknesses of the case, the complex
nature of the evidence relevant to the cause of death, and the
inconsistent expert opinions, “honest, fair-minded jurors
might very well have brought in not-guilty verdicts” if Dr.
Garber’s opinion had not been discussed. See Chapman, 386
U.S. at 26.
[13] Even more compelling, however, is the possibility
that jurors might have rendered not-guilty verdicts after hear-
ing cross-examination of Dr. Garber’s testimony. As shown in
the preliminary hearing and recognized by the section 995
hearing court, Dr. Garber’s opinion was not likely to with-
stand scrutiny beyond a reasonable doubt. When presented
with inconsistencies in Dr. Garber’s preliminary hearing testi-
mony, the hearing court judge stated that he was “disap-
pointed as to how Dr. Garber approached his task, and that the
testimony “could not withstand the light of day beyond a rea-
sonable doubt.” Dr. Garber’s preliminary hearing testimony
included statements such as: “It just is” when asked how
direct injury to the brain can be fatal; “I think you would
probably be wiser asking a neurologist or perhaps a neurosur-
geon or an ER physician, because that’s their areas of exper-
tise, and this is not mine” when asked about outward
symptoms that could be caused by brain hemorrhage; and
“you may want to ask a neurologist” when asked if there
could have been a seizure because of the brain hemorrhage.
Therefore, we conclude that the state court’s decision was
contrary to or an objectively unreasonable application of the
Supreme Court’s Chapman harmless error precedent.
III.
The medical evidence presented in Merolillo’s trial was
voluminous, technical, and often unclear. The ignorance of
MEROLILLO v. YATES 20963
laymen and even esteemed jurists as to medical evidence
compounds the difficulty encountered by the jury, attorneys
and courts in sorting out the experts’ testimony. The key
question in Merolillo’s case was whether his actions contrib-
uted to Mrs. Chromy’s death. Because the chain of causation
began as tenuous, continued to be disputed and was described
inconsistently by the experts, the erroneous admission of the
autopsy pathologist’s non-cumulative opinion testimony
likely had a substantial and injurious effect on the jury’s ver-
dict. Furthermore, it is impossible to say beyond a reasonable
doubt that the admission of Dr. Garber’s opinion did not con-
tribute to Merolillo’s conviction.
[14] The California Court of Appeal unreasonably applied
clearly established Supreme Court Confrontation Clause juris-
prudence to the facts of this case. The error was prejudicial
because Dr. Garber’s opinion provided the only definite state-
ment of head trauma as a contributing factor, he was pre-
sented as an expert authority based on his status as the sole
autopsy pathologist, and the prosecution’s case was uncertain
on the issue of causation. For the reasons stated, the judgment
of the district court is REVERSED, and the case is
REMANDED to it with direction to vacate the murder con-
viction and issue the writ.
REVERSED and REMANDED.