Appeal from the United States District Court for the Western District of Washington. DC No. CV-88-1421-WD. William L. Dwyer, District Judge, Presiding.
Before: Browning, Tang and T.g. Nelson, Circuit Judges.
In this memorandum, we discuss and reject contentions raised in Mak's cross-appeal on grounds that do not merit publication.
ARGUMENTS CONCERNING THE GUILT PHASE OF THE TRIAL
A. WAS MAK DEPRIVED OF THE RIGHT TO PRESENT A DEFENSE BY THE TRIAL COURT'S REFUSAL TO ADMIT EVIDENCE OF THE POSSIBLE INVOLVEMENT OF HING WONG?
The refusal of the trial court to admit circumstantial evidence that Hing Wong, a third party, and Ben Ng, Mak's co-defendant, had planned the massacre did not violate Mak's Eighth and Fourteenth Amendment rights.
Several factors must be balanced to determine if state evidentiary rulings have caused a violation of the defendant's constitutional rights. Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir. 1983), cert. denied, 469 U.S. at 838 (1984).
On Mak's side of the balance, "the right to present a defense is fundamental." Id. at 1450 (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). At the same time, "the state's legitimate interest in reliable and efficient trials is also compelling." Id. at 1451. Other factors must be considered:
In evaluating the significance of the evidence, the court should consider all of the circumstances: its probative value on the central issue, its reliability, whether it is capable of evaluation by the finder of fact, whether it is the sole evidence on the issue or merely cumulative, and whether it constitutes a major part of the attempted defense. The weight of the state's interest likewise depends on many factors. The Court must determine the purpose of the rule, its importance, how well the rule implements this purpose, and how well the purpose applies in the case at hand. The court must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, in excluding unreliable or prejudicial evidence.
Mak argues that the proffered evidence was a major part of his defense to capital murder; that evidence Hing Wong planned the incident, coupled with testimony that Mak was not privy to the plan, would raise doubt as to the essential element of premeditation. Although the evidence is quite probative on the issue of Hing Wong's involvement, it is not strongly probative of Mak's premeditation. Assuming Hing Wong was the ring leader, Mak could still have premeditated the murders.
Moreover, the reliability of the evidence is questionable. The fact that Hing Wong planned to control gambling in Chinatown was to be established by testimony of Steve Chin that he overheard such an assertion by Wong in a 1980 conversation. 8 REC 3048. The defense's proposed corroborating witness, Andy Wong, renounced his statement, and the defense intended to rely instead upon the double hearsay testimony of Detective Buckland, to whom Andy Wong allegedly had passed the information. 8 REC 3055. The fact that Wong set the massacre in motion was to be established by testimony of Lieutenant Holter that he had been so informed by a confidential informant, 8 REC 3050, whose identity was not revealed. To establish that Wong had arranged for murder of rival gang members, the defense intended to call certain witnesses who would testify that Wong had given them guns, but that they had returned them without committing any shootings. 8 REC 3058. To show that Wong had offered to sell Ben Ng a bulletproof vest, the defense proposed to rely upon the testimony of a third party to the effect that Ng had told him of the offer. 11 REC 3854.
On the state's side, the purpose of the rule, as the Perry court noted, is "to avoid undue prejudice to the [state] from unsupported jury speculation as to the guilt of other suspects." 713 F.2d at 1453 (citation omitted). In this case, as in Perry, there was substantial danger that the jury would be diverted from consideration of Mak's guilt or innocence to consideration of the guilt or innocence of Wong, who was not indicted. This danger of jury confusion is "a significant factor in the balance." Id. The weight to accord to the danger depends on how extraneous the evidence is. As noted, the probity of the evidence on the issue of Mak's premeditation is fairly weak; as in Perry, the evidence sought to be introduced "falls far short of the critical and reliable evidence considered in Chambers and Webb." Id. at 1455. The state court acted within its constitutional discretion in deciding on balance to exclude it.
B. WAS MAK DENIED HIS SIXTH AMENDMENT CONFRONTATION RIGHTS BY THE TRIAL COURT'S LIMITATIONS ON CROSS EXAMINATION FOR BIAS OF TWO PROSECUTION WITNESSES?
The refusal to allow cross-examination for bias of two prosecution witnesses, Yen Lau and Bon Chin, did not violate Mak's sixth amendment confrontation rights. The trial court held it was not constitutional error to deny cross-examination of Lau on the ground there was insufficient foundation to establish bias, since Lau had provided the police all the information concerning Mak to which he testified before the Red Lotus robbery or Lau's possible involvement in it came to light. 7 REC 2576. The trial Judge also ruled that cross-examination of Chin regarding the Red Lotus robbery would "open the door" to re-direct examination regarding Mak's involvement in the same robbery. Id. at 2570.
Although we are concerned about the possible violation of Mak's sixth amendment rights under Davis v. Alaska, 415 U.S. 308 (1974), we agree that any error was harmless. In Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), the Supreme Court stated: "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis."
Mak argues the error could not be considered harmless beyond a reasonable doubt because the testimony of the two witnesses was crucial in developing the state's theory that Mak planned the massacre, an idea that may have led the jury to impose the death penalty. Although the testimony of these two witnesses was important to the theory that Mak was the leader, it was not particularly critical on the central issue of guilt or innocence. The backbone of the prosecution's case was the eyewitness testimony of Wai Chin, the sole survivor of the massacre.
Moreover, the gist of the testimony of the two witnesses (that Mak had a long standing interest in robbing a gambling club), was corroborated by Wai Chung Tam's testimony that Mak discussed the possibility of robbing the Wah Mee with him, and said he would use a gun because a lot of people in Chinatown knew him, 8 REC 2896-97, and by the testimony of Sze Ming Ng that Mak had spoken to him about robbing a gambling club. Id. at 3083.
C. WAS MAK'S SIXTH AMENDMENT RIGHT TO CONFRONTATION VIOLATED BY THE PROSECUTION'S QUESTION TO A WITNESS DESIGNED TO ELICIT A DAMAGING HEARSAY STATEMENT BY A CO-DEFENDANT?
During questioning of one of Mak's witnesses, the prosecutor asked if Ng had told the witness that Mak had done all the shooting. Defense counsel's objection was sustained and the question stricken. Mak contends asking the question was in itself a violation of Bruton v. United States, 391 U.S. 123, 137 (1968), and Douglas v. Alabama, 380 U.S. 415, 420 (1965). Bruton and Douglas are inapplicable. Bruton involved the introduction of evidence -- a co-defendant's confession inculpating Bruton; in Douglas the equivalent of testimony was ...