Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Leslie Allen Pounds appeals the district court's denial of a writ of habeas corpus under 28 U.S.C. § 2254 (1982). Pounds was convicted in state court of first degree aggravated murder under Wash.Rev.Code Ann. Sec. 10.95.020 (Supp.1989) and sentenced to life imprisonment without the possibility of parole. The grounds on which Pounds may attack his conviction in federal court are limited to violations of federal law or the United States Constitution. 28 U.S.C. § 2254(a) (1982). Our review of the district court's order is de novo. Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987), cert. denied, 109 S. Ct. 380 (1988).

Pounds first contends that the state trial court violated his rights under the confrontation clause of the Sixth Amendment by excluding evidence of prior conduct by Chris Vaughn, which Pounds sought to introduce during cross-examination of Vaughn and other witnesses. The confrontation clause guarantees a criminal defendant the opportunity effectively to cross-examine witnesses and expose their motivation in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). The right is not absolute, however, and the trial court may limit the inquiry based on concerns about confusion of the issues or interrogation that is repetitive or only marginally relevant. United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987), modified in unrelated part, 856 F.2d 1391 (1988). If a confrontation clause violation occurs, reversal of the conviction is not required if the error is harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684.

Pounds' theory at trial was that Vaughn murdered the victim and directed blame toward Pounds. In support of this theory, Pounds sought to introduce evidence of assaults and threats by Vaughn against the victim, the victim's sister who testified, and other persons unrelated to the trial. He also sought introduction of evidence that Vaughn perpetrated a betting fraud and avoided detection by shifting blame to another. Pounds maintains the evidence of Vaughn's conduct was relevant to show Vaughn's bias, self-interest in testifying, and motive to lie about his involvement in the murder. In the alternative, Pounds argues that evidence of Vaughn's threat against the victim's sister was relevant to show the sister's bias in testifying favorably for Vaughn because she feared him. We conclude that neither ground warrants the issuance of a writ of habeas corpus.

Vaughn's prior behavior would show bias and motive to lie only by showing that Vaughn killed the victim rather than Pounds. However, such behavior could establish Vaughn's culpability only by showing (1) his capacity for violence and ability to avoid detection and (2) the probability that he acted in conformity with those character traits on the day of the murder. The trial court excluded this character evidence under Wash.R.Evid. 404(b), which prohibits the admission of other acts to demonstrate character in order to prove action in conformance with that character. This rule is identical to Fed.R.Evid. 404(b) and reflects the universally accepted premise that proof of who or what a person is bears little relevance to whether the person committed a particular act. See United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985). Exclusion of such evidence does not violate the confrontation clause.

We note that by excluding this evidence, the trial court did not foreclose Pounds' ability effectively to impeach Vaughn's testimony or to prove that Vaughn killed the victim. Pounds was permitted to show Vaughn's bias against him by introducing evidence of an assault by Vaughn against Pounds and a plea agreement, under which Vaughn received a lenient charge for testifying against Pounds. Pounds was also permitted to show that Vaughn had threatened the victim as evidence of Vaughn's alleged motive to kill. Finally, Pounds was permitted to interrogate Vaughn about his role in the murder. Thus, Pounds was granted wide latitude in impeaching Vaughn's credibility and in establishing his alleged role as the killer.

In contrast, the exclusion of evidence of Vaughn's threat against the victim's sister may raise a problem under the confrontation clause. Such a threat might have led the jury to conclude that the victim's sister testified in favor of Vaughn to escape injury. See Van Arsdall, 475 U.S. at 679-80 (confrontation clause violated where defendant was prohibited from showing source of bias that might have caused jury to receive significantly different impression of witness's credibility). Any violation of Pounds' right to confront the sister, however, was harmless beyond a reasonable doubt.

The victim's sister was not a witness to the events surrounding the murder. She testified, along with others, about such things as witness credibility and the reputation of the victim or the accused for violence or peacefulness. In the face of the eyewitness testimony from two individuals who were with Pounds during the murder, there was no reasonable likelihood that an altered jury perception of the credibility of a single character witness would have changed the determination of guilt or innocence.

Pounds next contends that habeas corpus relief is justified because of a failure in the trial court's instructions regarding the three aggravating factors submitted to the jury. The burden of demonstrating grounds for relief based on erroneous instructions is greater in a collateral attack than on direct appeal. Walkner v. Endell, 850 F.2d 470, 475 (9th Cir. 1987) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)), cert. denied, 109 S. Ct. 309, 530 (1988). Thus, Pounds must identify a defect "so infect [ing] the entire trial that the resulting conviction violates due process." Henderson, 431 U.S. at 154.

Pounds complains that the instructions inadequately informed the jury of its duty unanimously to find one of the three aggravating factors advanced by the prosecution (i.e., that Pounds committed the murder in the course of, in furtherance of, or in immediate flight from first or second degree robbery or first degree kidnapping). We find no due process violation in the trial court's instructions. The instructions began with a general directive that the jury had to find each element of the crime by unanimous vote. The instructions later described the aggravating factors as alternatives, one of which the jury had to find before voting to convict. The instructions concluded with a summary of elements of aggravated first degree murder and an express reminder that unanimity on at least one of the prosecution's proposed aggravating factors was required. Although the verdict form may have violated state law by failing to require specification of which factor or factors the jury found, see State v. Green, 616 P.2d 628, 638 (Wash.1980), the instructions sufficiently spelled out the jury's duty of unanimity to prevent fundamental unfairness in the trial as a whole.

Pounds' final contention concerns the sufficiency of evidence showing the required nexus between the underlying murder and the robbery as an aggravating factor. Specifically, he contends the evidence fails to show that he murdered the victim in the course of, in furtherance of, or in flight from robbing the victim as required by Washington's aggravated murder statute. According to Pounds, the robbery terminated before commission of the murder began, foreclosing the required relationship between the crimes. He maintains this evidentiary shortfall justifies habeas corpus relief because the verdict form does not preclude the possibility of the jury convicting on the basis of robbery, and not kidnapping, as the aggravating factor.

Because Pounds is applying for habeas corpus relief from a state conviction, he can succeed with his evidentiary challenge only by showing that no rational trier of fact could have found the required nexus beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). We conclude that Pounds has failed to make that showing. The statute broadly defines the types of relationships an aggravating robbery need bear to the underlying murder; it even includes murders committed in flight from a robbery. See Wash.Rev.Code Ann. Sec. 10.95.020(9) (a) (Supp.1988). The evidence showed that Pounds robbed the victim of his wallet, a gold chain, and other belongings at gunpoint while they were riding in a car to the site of the murder. Pounds kept the gun aimed at the victim from the time of the robbery until his death. Based on such evidence a rational trier of fact could find the required nexus between the robbery and the murder.

As an alternative argument, Pounds relies upon People v. Green, 609 P.2d 468 (Cal.1980), where the California Supreme Court interpreted that state's aggravated murder statutes to require that in committing the murder, the accused had to have an independent felonious purpose to commit the aggravating crime. People v. Kimble, 749 P.2d 803, 815 (Cal.) (interpreting Green), cert. denied, 109 S. Ct. 188 (1988). The state advanced murder during the commission of robbery as the aggravating factor because the defendant accompanied his wife into the forest, forced her to disrobe, and took her clothing before killing her. Green, 609 P.2d at 498-501. The court concluded the murder was not done in the commission of a robbery within the meaning of the statute. Because the defendant had taken the clothing to conceal the murder rather than to reap personal gain, the court found an absence of the necessary independent felonious intent. Id. at 505-06.

We doubt the rationale of Green applies to Washington's aggravated murder statute. See State v. Manthie, 696 P.2d 33, 35-37 & 41 (Wash.App.1985) (evidence that wife and accomplice took personal effects of husband after killing him sufficient to warrant instruction of robbery as an aggravating factor). Even if Green did apply, moreover, a rational trier of fact could find that Pounds possessed an independent felonious intent to rob. Unlike the situation in Green, the evidence in this case would support a conclusion that Pounds sought something other than a cover for an intended murder when he forced the victim to deliver up his wallet, gold chain, and other possessions. Although Pounds threw the wallet off a bridge, the evidence suggests that he kept the victim's gold chain. Furthermore, the evidence implies that Pounds sought what was in the wallet at the time of the robbery.

Pounds has failed to establish that he is imprisoned in violation of federal law or the United States Constitution. The district court's order and judgment dismissing his application for a writ of habeas corpus are accordingly

AFFIRMED.