Dwight Krizman v. Bob Horel , 385 F. App'x 689 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DWIGHT KRIZMAN, No. 08-56016
Petitioner - Appellant, D.C. No. 2:06-CV-05064-ODW
(PLA)
v.
BOB HOREL, WARDEN, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, United State District Judge, Presiding
Submitted June 7, 2010 **
Pasadena, California
Before: NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***
*
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 David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
Dwight Krizman (“Petitioner”) appeals the denial of his petition for a writ of
habeas corpus relating to his California state conviction for the murder of his wife.
The state trial included testimony from a treating doctor and nurse disclosing that
shortly prior to her death, the Petitioner’s wife reported having been the victim of
domestic abuse by her husband.
The sole issue advanced by the Petitioner is the claim that the testimony of
the doctor and nurse relating to his wife’s inculpatory statements regarding prior
domestic abuse violated the teachings of Crawford v. Washington, 541 U.S. 36(2004).
The physical altercation that led to the Petitioner’s wife’s death occurred at
the couple’s residence on November 22, 2002. On December 17, 2002, the
Petitioner’s wife died of complications related to the injuries she sustained on
November 22, 2002.
The Petitioner was convicted following a jury trial of the offense of second
degree murder and sentenced to a term of 15 years to life for the murder
conviction. The California Court of Appeals affirmed the Petitioner’s conviction
in an unpublished opinion and the Petitioner’s petition for review by the California
Supreme Court was denied. The petition for a writ of habeas corpus filed in United
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States District Court for the Central District of California was denied on June 10,
2008.
The sole question before this Court is whether the testimony by the treating
doctor and nurse reporting claims of domestic violence by the Petitioner’s spouse
violated the teachings of Crawford v. Washington and the subsequent
pronouncements in Davis v. Washington, 547 U.S. 813 (2006).
The narrow issue is whether the statements by the treating doctor and nurse
are “non-testimonial” or “testimonial.”
In affirming the Petitioner’s conviction, the California Court of Appeals
declared:
Here, Mrs. Krizman’s hearsay declarations were not
made under circumstances which would lead an
“objective witness reasonably to believe that the
statement” would be available for use during a trial
(Crawford v. Washington, supra, 541 U.S. at p. 52.)
Rather, they were made in response to the questions of
medical personnel for purposes of diagnosis and
treatment. The statements were properly admitted
pursuant to Evidence Code section 1370 and did not
violate the Confrontation Clause (emphasis added).
The issue of the admissibility of hearsay declarations by domestic abuse
victims in a habeas setting was subsequently addressed by this Circuit in Moses v.
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Payne, 555 F.3d 742 (9 th Cir. 2009) in the context of habeas review governed by
the Antiterrorism and Effective Death Penalty Act of 1996.
The Payne panel concluded that the murder victim’s statements to her doctor
reporting domestic abuse by her husband “were non-testimonial because they were
made for purposes of diagnosis and treatment, rather than to inculpate Moses ...
[and] not an unreasonable application of the legal principle established by
Crawford.”
We hold that the relevant ruling in Moses v. Payne is controlling. The
judgment of the district court is AFFIRMED.
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