Brian Brown v. State of Nevada ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 23 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN LAMAR BROWN, No. 18-15727
Petitioner-Appellant, D.C. No.
2:02-cv-00770-GMN-PAL
v.
STATE OF NEVADA; RICK WALKER; MEMORANDUM*
BILL DONAT,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted December 2, 2019**
San Francisco, California
Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Appellant Brian Brown filed a petition for habeas corpus under 28 U.S.C.
§ 2254, alleging that his constitutional rights had been violated during his criminal
trial. The district court denied the habeas petition. We granted a certificate of
appealability on the issue of “whether the prosecutor committed prejudicial
misconduct during closing arguments.” Because the parties are familiar with the
facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
We review the Nevada Supreme Court’s 1999 decision on Brown’s direct
appeal of his conviction because it is the last reasoned state-court decision
addressing the issue at hand. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.
2003). We may not grant habeas relief under these circumstances unless the
Nevada Supreme Court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
A prosecutor’s improper comments violate a defendant’s constitutional
rights only if the comments “‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
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Any curative instructions given by the trial court and “heavy” evidence of the
defendant’s guilt soften the impact of improper comments. See id. at 182.
The Nevada Supreme Court found that “the fairness of [Brown’s] trial was
not affected” by the prosecutor’s comments. Although the Nevada Supreme Court
did not cite Darden, the Nevada Supreme Court’s language is nearly identical to
Darden’s standard for a constitutional violation. We thus conclude that the
Nevada Supreme Court found that the prosecutor’s comments did not violate
Brown’s due process rights. As a result, we must decide whether the Nevada
Supreme Court unreasonably applied Darden. It did not.
Brown argues that his constitutional rights were violated when the
prosecutor (1) asserted that Brown shot the victims in the back, (2) misstated
witness testimony, (3) argued facts not in evidence, and (4) denigrated Brown’s
expert witness. None of these comments “infected the trial with unfairness.” Id. at
181.
1. Contrary to Brown’s assertion, the prosecutor did not say that Jason Banks
was shot in the back. Instead, the prosecutor argued that Brown did not draw his
gun until the victims’ backs were turned. Although one witness had testified that
the victims were walking towards Brown when he drew the gun, other witnesses
contradicted that testimony. The prosecutor’s argument was thus a fair inference
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from the testimony elicited at trial. Regardless, any detrimental effect engendered
by these comments was softened by the trial court’s instruction that “[n]othing that
counsel say[s] during the trial is evidence in the case.” Absent a contrary showing,
we presume the jury followed that instruction. See Richardson v. Marsh, 481 U.S.
200, 211 (1987).
2. Brown contends that the prosecutor misstated the testimony of two
witnesses: Robin Skipworth and Michelle Marlette. Skipworth had testified that
Brown was “between [Banks and Randy Beach] and the car” prior to the shooting,
so they were walking towards Brown when he drew his gun. During his closing
arguments, the prosecutor said that Skipworth had testified that Brown did not
draw his gun until the victims’ backs were turned. This was a misstatement. But it
did not affect the fairness of Brown’s trial. Brown’s counsel immediately objected
to the misstatement. A few moments earlier, the trial court had cautioned the jury,
“Ladies and gentlemen, you decide what you heard.” And throughout closing
argument, Brown’s counsel highlighted the prosecutor’s misstatement and
accurately recounted Skipworth’s testimony.
The prosecutor did not misstate Marlette’s testimony. Rather, the prosecutor
proffered a hypothetical to highlight an inconsistency between Marlette’s
testimony—that Brown fired all the shots from the basketball court—and the fact
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that multiple bullet casings were found outside of the basketball court. This did
not violate Brown’s right to due process.
3. Brown identifies two facts not in evidence that the prosecutor allegedly
argued during closing statements: (1) that the shooting occurred when Brown was
thirty feet away from Banks and Beach, and (2) that the crime investigators found
gun residue on Banks after swabbing the back of his hands. As previously
mentioned, the first was merely a hypothetical proffered by the prosecutor. As for
the second, Brown is correct; no witness testified that Banks was swabbed on the
back of his hands. But Brown fails to show how this comment undermined the
fairness of his trial, especially when Brown’s counsel immediately objected.
4. Finally, the prosecutor denigrated Brown’s expert witness by saying, “You
saw Dr. Bittker. One might wonder why he’s not ever called by us here. You
know why? We don’t use that man. Ph.D. You’ve heard of that, piled higher and
deeper.” This statement is clearly improper. But Brown’s counsel immediately
objected to it, and the trial court sustained that objection. This softened the impact
of the statement, particularly given the trial court’s earlier instruction to the jury
that it was to “disregard” and “draw no inference from” statements when the court
sustains an objection. In any event, it is unlikely the jury discounted Dr. Bittker’s
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opinion that Brown acted in self-defense based solely on the prosecutor’s isolated
comment about Dr. Bittker’s education.1
In sum, the Nevada Supreme Court did not unreasonably apply Darden or
any other clearly established federal law, precluding Brown from habeas relief.
See 28 U.S.C. § 2254(d).
AFFIRMED.
1
Brown also argues that the prosecutor engaged in “reverse vouching” for
the State’s witnesses by attacking Dr. Bittker and that the prosecutor’s suggestion
that the Washoe County District Attorney’s Office never uses Dr. Bittker as a
witness was likely false. But Brown did not present these arguments in his habeas
petition, so they are waived. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.
2001).
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