FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW G. JENNINGS, No. 10-16432
Petitioner - Appellant, D.C. No. 4:01-cv-03751-PJH
v.
MEMORANDUM*
D. L. RUNNELS,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted September 12, 2012
San Francisco, California
Before: ALARCÓN, GRABER, and BERZON, Circuit Judges.
Matthew Jennings appeals the district court’s partial denial of his 28 U.S.C.
§ 2254 habeas petition, which challenged his conviction and sentence of life
without parole for aiding and abetting first-degree murder and for the special
circumstances of felony murder and lying-in-wait. We review the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision de novo, Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012), and
affirm.
1. Jennings contends that the introduction at his trial of certain portions of
his non-testifying accomplices’ confessions violated his Sixth Amendment right to
confrontation and was prejudicial error. This case predates Crawford v.
Washington, 541 U.S. 36 (2004), so Jennings’s Confrontation Clause claims are
governed by Ohio v. Roberts, 448 U.S. 56 (1980), and Lilly v. Virginia, 527 U.S.
116 (1999). We need not decide whether the challenged statements were
admissible under Roberts and Lilly. Even if their introduction was constitutional
error, it was harmless.
Erroneous admission of out-of-court statements by a non-testifying declarant
is a trial-type error, Padilla v. Terhune, 309 F.3d 614, 621 (9th Cir. 2002), which
merits habeas relief only if it “had substantial and injurious effect or influence in
determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(internal quotation marks omitted); see also Ocampo v. Vail, 649 F.3d 1098, 1114
(9th Cir. 2011). We apply the Brecht test directly, rather than separately
considering the reasonableness of the state court’s harmlessness determination. Fry
v. Pliler, 551 U.S. 112, 121–22 (2007).
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The challenged portions of the confessions could not have had a substantial
influence on Jennings’s murder conviction. The jury could have relied on a felony-
murder theory, which required proof only of Jennings’s intent to commit the
predicate felony—here, burglary or robbery—and that the murder occurred in the
course of that felony. See Duncan v. Ornoski, 528 F.3d 1222, 1233 (9th Cir. 2008)
(describing the requirements for a first-degree felony murder conviction in
California). Jennings does not challenge his convictions for burglary and robbery
on appeal or that the murder occurred in the course of the burglary and robbery.
Consequently, our harmlessness inquiry focuses only on the special circumstances
portion of the verdict. And, because the felony-murder special circumstance is
sufficient to uphold Jennings’s sentence of life without possibility of parole, we do
not address the lying-in-wait special circumstance.
The challenged portions of the confessions were harmless with respect to the
felony-murder special circumstance because unchallenged statements, combined
with other testimony, provided strong, independent evidence that Jennings was a
“major participant” in the burglary and robbery who displayed “reckless
indifference to human life.” See Cal. Penal Code § 190.2(a)(17), (d). Delaware v.
Van Arsdall established the factors to be considered in determining whether a
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Confrontation Clause violation is prejudicial. 475 U.S. 673, 684 (1986). We apply
those factors.
First, although the challenged statements figured to some degree in the
prosecution’s case, they were corroborated by, and cumulative of, evidence of
Jennings’s indifference to human life not challenged on appeal. In particular,
unchallenged statements established that Jennings came to the LeeWards store with
the other culprits; that there was a prior plan to set fire to the store, with the victim
inside; that Jennings and a codefendant were the ones who obtained the gasoline to
carry out this plot by siphoning it from a car; and that the gasoline was taken to the
crime scene and left nearby. Although it turned out that the victim was killed
without use of the gasoline and while Jennings was not present, Jennings’s
knowledge of and involvement in the gasoline plot is strong evidence that he went
into the robbery cognizant that the victim could be killed. The prosecution
emphasized the collection and planned use of the gas repeatedly in closing
arguments. That no fire was set does not make the evidence less probative of
Jennings’s “subjective awareness of the grave risk to human life created by his . . .
participation in the underlying felony,” as it remains strongly indicative of a plan
to assure that, one way or another, the victim would not live to identify the robbers.
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See People v. Estrada, 11 Cal.4th 568, 578 (1995) (defining “reckless indifference
to human life” under California law).
Other evidence confirmed that Jennings was at least recklessly indifferent to
human life in carrying out the robbery. Some of the codefendants were armed
when they arrived with Jennings at the scene of the crime, making it evident that
violence against the victim was likely. Moreover, Jennings was aware that two of
the robbers were known to the victim but wore no disguises. Further, Jennings was
with the other robbers at various locations where the crime was discussed. Finally,
one witness, Cynthia Tipton, testified that another witness, Robert Standard, told
her he had heard the culprits planning both the robbery and the killing while
Jennings was present. Although Standard denied the statement at trial, the jury
could have credited Tipton rather than Standard. In light of this evidence and the
gasoline plot, of which Jennings was a part, we conclude the challenged statements
did not substantially influence the jury’s verdict.
As to the “major participant” prong, essential to the felony-murder special
circumstance, evidence other than the challenged confessions persuasively
revealed Jennings’s role in the burglary and robbery to be at least “notable or
conspicuous in effect or scope.” People v. Proby, 60 Cal. App.4th 922, 933–34
(1998); Cal. Penal Code § 190.2(a)(17), (d). Jennings admitted his involvement in
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the robbery and burglary to his ex-girlfriends; unchallenged portions of the
codefendants’ confessions describing Jennings as the look-out established that he
came into the store with the other burglars and then served as the driver of the
getaway car; circumstantial evidence demonstrated his close relationship with the
accomplices; and Jennings shared substantially in the loot from the robbery. In
view of this evidence, the challenged statements could not have significantly
affected the verdict with regard to Jennings’s role in the underlying robbery and
burglary.
2. Jennings’s challenge to the sufficiency of the evidence for the felony-
murder special circumstance fails because he cannot show that “no rational trier of
fact could have agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per
curiam). Because reversal for insufficient evidence bars retrial, sufficiency review
under Jackson v. Virginia, 443 U.S. 307 (1979), must consider all the evidence
admitted by the trial court, regardless whether that evidence was admitted
erroneously. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010). The California
Court of Appeal reasonably applied Jackson in holding the evidence sufficient to
sustain the felony-murder special circumstance.
3. Finally, the state court reasonably concluded that the admission of
testimony that Jennings had bragged about using a stun gun in a prior robbery did
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not render the trial fundamentally unfair in violation of due process. Even if this
evidence were introduced to show that Jennings committed the crime for which he
was on trial, the Supreme Court has not held that propensity evidence violates due
process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (reserving the question
of whether admission of prior crimes evidence to show propensity would violate
the Due Process Clause); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th
Cir. 2009) (“[The Supreme Court] has not yet made a clear ruling that admission of
irrelevant or overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ.”). The absence of Supreme Court
precedent on point forecloses any argument that the state court’s decision was
contrary to or an unreasonable application of clearly established federal law. See
Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008).
For the foregoing reasons, the district court’s denial of Jennings’s habeas
petition is AFFIRMED.
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