filed: April 28, 1993; As Amended June 10, 1993.
On Remand from the United States Supreme Court D.C. No. CV 87-5448-RJK(S). Original Opinion Reported at:,.
Before: James R. Browning and Harry Pregerson, Circuit Judges, and William H. Orrick,*fn* Senior District Judge. Opinion by District Judge Orrick.
AMENDED OPINION AND ORDER
Respondents-Appellants, Robert M. Rees, Superintendent of Deuel Vocational Institution, and John K. Van de Kamp, then Attorney General of the State of California ("State"), appealed the conditional grant of a writ of habeas corpus to Michael Sheridan McKinney entered by the United States District Court for the Central District of California. We affirmed in our Memorandum filed September 5, 1990. The Supreme Court of the United States granted certiorari, vacated our opinion, and remanded the case for further consideration in light of Estelle v. McGuire, 112 S. Ct. 475 (1991), which reversed the decision of this court. McGuire v. Estelle, 902 F.2d 749 (9th Cir. 1990). After considering supplemental briefing and the Estelle opinion, we again affirm, finding Estelle inapposite to the case at bench.
In Estelle, the Supreme Court overturned our holding that the erroneous admission of evidence, coupled with a prejudicial instruction, rendered McGuire's trial fundamentally unfair. McGuire was prosecuted for the murder of his infant daughter. The disputed evidence was evidence that the child suffered prior serious injuries, characteristic of the "battered child syndrome." The trial court admitted the evidence as proof that the injuries from which she died were inflicted intentionally, rather than accidentally. We found that the lack of connection between the prior injuries and the defendant rendered the evidence irrelevant, but the Supreme Court reversed, finding that the "battered child syndrome" evidence was relevant and probative of the essential element of intent. Estelle, 112 S. Ct. at 480. The defendant's decision not to contest that element did not lift the burden from the prosecution to prove it. Id. at 480-81. The Supreme Court found that even if the jury instructions were somewhat ambiguous, there was not a reasonable likelihood that the jury would have used the prior injury evidence impermissibly as propensity evidence. Therefore, it concluded, there was no violation of McGuire's due process rights. Id. at 483-84. The Court did not address the questions of whether the admission of irrelevant evidence could violate the due process guaranteed by the Fourteenth Amendment (id.), or whether the use of character evidence to show propensity would violate the Due Process Clause. Id. at 484 n.5.
As we now reconsider this case in light of Estelle, we are mindful that "in conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 480. McKinney claims, as he did in the Court of Appeal of the State of California, that his constitutional right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment was violated. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963). It is this claim that this court must evaluate. This court also is mindful of the reiteration by the Estelle Court that "'the category of infractions that violate "fundamental fairness" '" is a very narrow one. 112 S. Ct. at 482 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).
We now examine the contested evidence to determine, first, whether like the contested evidence in Estelle, it was relevant to an essential element in the prosecution's case, and second, if not, whether its admission rendered McKinney's trial fundamentally unfair.*fn1
Evidence is considered irrelevant if it fails to make any fact of consequence more or less probable. See Fed. R. Evid. 401. Irrelevant evidence may merely be a waste of time, may confuse the jury, or may cause serious prejudice to the defense. The argument regarding relevance in this case is different from that in Estelle. In Estelle, the Supreme Court found that the "battered child syndrome" evidence was relevant to the intentional nature of the injuries that killed the child, a fact of consequence. 112 S. Ct. at 480. The contested evidence in this case can loosely be termed "other acts" evidence. "Other acts" evidence may be relevant to a fact of consequence, or it may be relevant only insofar as it proves the character of the defendant in order to show action in conformity therewith, in which case it is a form of character evidence.
Preliminarily, it is helpful to discuss the use of character evidence. The use of "other acts" evidence as character evidence is not only impermissible under the theory of evidence codified in the California rules of evidence (Cal. Evid. Code § 1101 (West Supp. 1993) and the Federal Rules of Evidence (Fed. R. Evid. 404(b)), but is contrary to firmly established principles of Anglo-American jurisprudence. In 1684, Justice Withins recalled a prior case in which the court excluded evidence of any forgeries, except the one for which the defendant was standing trial. Hampden's Trial, 9 How. St. Tr. 1053, 1103 (K.B. 1684). Similarly, in Harrison's Trial, the Lord Chief Justice excluded evidence of a prior wrongful act of a defendant who was on trial for murder, saying to the prosecution: "Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter." 12 How. St. Tr. 834 (Old Bailey 1692). Early American courts retained the rule against using "other acts" evidence as character evidence to show action in conformity therewith. See, e.g., Rex v. Doaks, Quincy's Mass. Reports 90 (Mass. Super. Ct. 1763) (excluding evidence of former acts of lasciviousness from the trial of a defendant accused of keeping a bawdy house); Boyd v. United States, 142 U.S. 450, 458 (1892) (finding that admission of prior crimes committed by defendants so prejudiced their trial as to require reversal). As acknowledged by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 174 (1949):
Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
The rule against using character evidence to show behavior in conformance therewith, or propensity, is one such historically grounded rule of evidence. It has persisted since at least 1684 to the present, and is now established not only in the California and federal evidence rules, but in the evidence rules of thirty-seven other states and in the common-law precedents of the remaining twelve states and the District of Columbia.*fn2
The question brought to us by McKinney and returned to us by the Supreme Court is whether the admitted evidence of "other acts" of the defendant was relevant to a fact of consequence, or was only evidence of character offered to show propensity. Under the historic rule against character evidence, such evidence is not relevant to any fact of consequence. We summarize the contested evidence and then subject it to close scrutiny to determine whether any inferences relevant to a fact of consequence may be ...