Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1989)

Patricia KWALLEK, Petitioner-Appellee,v.Roger V. ENDELL, Commissioner; Harold Brown, AttorneyGeneral of the State of Alaska, Respondents-Appellants.

No. 88-3948.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1989.Decided May 18, 1989.

Before REINHARDT, KOZINSKI and TROTT, Circuit Judges.


Patricia Kwallek is an Alaska state prisoner. Following her conviction in Alaska Superior Court for the first-degree murder of her husband, Kwallek appealed, first to the Alaska Court of Appeals, and then to the Alaska Supreme Court, where she raised numerous evidentiary and constitutional issues. Both courts affirmed her conviction. Kwallek then filed a petition for habeas corpus relief in federal court, alleging that the admission of her pre-arrest statement to two Alaska State Troopers violated her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and constituted an impermissible comment on her assertion of her constitutional right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976). The district court agreed with both of Kwallek's contentions, and held that the resulting prejudice was not harmless beyond a reasonable doubt. Alaska appeals, arguing first that the admission of the statement neither violated Kwallek's Miranda rights nor constituted an impermissible comment on her assertion of silence and, alternatively, that in light of the overwhelming evidence, any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). We review the district court's grant of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, 109 S. Ct. 250 (1988). Findings of fact underlying the state court's determination of harmless error are afforded the presumption of correctness under 28 U.S.C. § 2254(d) (1982). Id.


A. We need not consider whether the admission of Kwallek's statement violated her constitutional rights, because we agree with the state appellate court that the error, if any, was harmless. Kwallek said very little during her pre-arrest interview of either an inculpatory or exculpatory nature. The substance of the challenged portions of the interview, which focused almost exclusively on the Kwalleks' financial difficulties, added nothing that was not already known, or could not have been easily discovered by the prosecution. In fact, Kwallek had already disclosed to investigators in a prior interview much of what she said to the state troopers during the interview in question. No information was conveyed during the interview that was not otherwise available for presentation to the jury.

B. A somewhat closer issue is the admissibility of those portions of the transcript where Kwallek indicates that she wishes to answer no further questions until the arrival of her mother. However, we conclude that any error in admitting this testimony was also harmless. In the first place, Kwallek merely asked to postpone the interview for a short time. Her statement thus does not constitute the type of unequivocal refusal to continue discussions from which a jury might infer guilt. Moreover, Kwallek's request for delay was perfectly plausible under the circumstances: Her husband had suffered a violent death the previous day. It was understandable for her to seek the support of a family member before delving further into the details of the tragedy. While it might have been preferable for the prosecutor to have excised that portion of the transcript, it is highly unlikely that any juror would have inferred consciousness of guilt therefrom.

In any event, the evidence of Kwallek's guilt was strong; the jury would no doubt have convicted her even if Kwallek's conversation with the troopers had been entirely omitted. The rifle which killed Kwallek was found in the attic of the Kwalleks' home shortly after the shooting. Spent shells from the same rifle were found near the door of the house, some distance from the site of the shooting. A state expert testified that the pattern of gaseous residue on Kwallek's robe was consistent with her having fired the murder weapon, pulling the trigger with the left hand. Kwallek, who is left-handed, is familiar with weapons. The state also presented substantial evidence of motive, including testimony to the effect that the Kwalleks' financial difficulties were a source of considerable marital friction.

Finally, Kwallek's attempt to explain away this mass of circumstantial evidence was patently contrived. There is no plausible reason why the gunman, having shot her husband outside the house with one of the Kwalleks' rifles, would gather up the spent shells and leave them near the door, then go into the house, pull down the attic stairs and hide the weapon in the attic before fleeing without a trace. Similarly unconvincing was Kwallek's contention that the gunshot residue on her house robe was picked up off a table top, as there were no wipe marks on the robe.

In short, the admission of the June 25 transcript was, if error at all, harmless.


REINHARDT, Circuit Judge, dissenting:

My disagreement with the majority is simple. I believe the district court was correct in concluding that the constitutional errors entailed in admitting into evidence Kwallek's interview with the troopers were not harmless. Nothing in the majority's abbreviated discussion persuades me to the contrary. Accordingly, I dissent.

Kwallek's claims are straightforward ones: she claims that the troopers refused to honor her invocation(s) of her right to remain silent, and that the jury improperly learned that she three times requested that the police stop questioning her until the arrival of her mother. The majority holds that any error in introducing a constitutionally proscribed police interview and allowing the jury to hear Ms. Kwallek repeatedly seek to end her interrogation was harmless. I disagree.1 

The majority grounds its conclusions that the errors were harmless essentially upon three observations. Each is flawed. Initially, the majority dismisses the Miranda error [Maj. at 2-3], in four brief sentences which reduce to one assertion--any information actually "conveyed" by allowing the jury to hear the unconstitutional interview was "otherwise available for presentation to the jury." While this limited assertion may be accurate, it is inadequate to the majority's task, for exclusive focus on the "information" contained in the interview ignores the potential prejudice to Kwallek from the jury's knowledge of the context in which the interview occurred. As I emphasize below, harmless error analysis requires something more than the majority's "the jury could have heard facts a, b and c anyway" approach.

When it turns to Kwallek's Doyle claim, the "closer question" in this case (see n. 1), the majority doubles its efforts and offers two observations--the first (at best) naive, the second probably inaccurate--to support its "harmless" conclusion. The majority first observes that, because Kwallek's requests for her mother were "perfectly plausible under the circumstances," "it is highly unlikely that any juror would have inferred consciousness of guilt" from the requests. Maj. at 3. Even leaving aside the question whether the majority's "highly unlikely" test is equivalent to the "beyond a reasonable doubt" standard which we must apply to constitutional harmless error analysis, Chapman v. California, 386 U.S. 18 (1967), I find this assertion (to put it mildly) unconvincing. First, by looking exclusively at the "violent death the previous day" of Kwallek's husband, the majority, somewhat disingenuously, focuses on the wrong "circumstances" in evaluating the potential effect on the jury of her requests for delay. It is not merely that "Spade" Kwallek had recently "died" that might have motivated his widow to ask the troopers to stop questioning her; it is that--as the troopers freely admitted and as the interview unequivocally demonstrated to the jury--she knew that they thought she had killed her husband. It requires no great imagination, the majority's disposition notwithstanding, to conclude that the jury, already aware that Kwallek was the prime suspect by the time the interview began, may very likely have looked on her repeated requests to stop answering questions as something far more insidious than her expression of a desire for "the support of a family member." Maj. at 3.

I think that this discussion illustrates the fundamental inadequacy of the majority's harmless error analysis. By looking only to the "information" conveyed during the interview, or selecting a few helpful "circumstances," the majority ignores the full context of Kwallek's statements, and of their admission into evidence at her trial; in so doing, the majority fails to address the manner in which the statements reinforced other aspects of the State's case, particularly its desire to have Kwallek appear as something other than a confused or troubled victim of a "tragedy." Id. Evaluating the harm of constitutional error without analyzing the logical relationship of the erroneously admitted evidence to the rest of the evidence at trial distorts harmless error analysis and, as here, invites unsound outcomes.

The majority offers a third observation--that the evidence of Kwallek's guilt is so "strong" that the constitutional errors are harmless. Id. I am not persuaded by the majority's all too casual characterization of the evidence, and would place more stock in the Alaska trial judge's admission that the actual evidence of what happened on the morning of the shooting was "pretty skimpy." This was a case founded on circumstantial evidence, conjecture, and the State's desire to have the jury disbelieve Ms. Kwallek's story. In such a case, testimony about motive (a subject discussed at length in the interview which Ms. Kwallek seeks to suppress), or testimony (such as three requests to stop answering police questions) that might have made the defendant appear evasive or less than forthright with the troopers could be especially damning. I must, then, reject out of hand the majority's conclusory assertion that there is "no doubt" that Kwallek would have been convicted even if her "conversation with the troopers had been entirely omitted [from the trial]." Id.

Constitutional error is essentially conceded by the State. The district judge, in my view correctly, concluded that this error was not harmless beyond any reasonable doubt. See Chapman, 386 U.S. at 24. Habeas corpus relief was thus properly granted to Mrs. Kwallek. I dissent from the majority's unfortunate holding to the contrary.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


I do not discuss the question whether it was error to admit Kwallek's first request to terminate the interview (although I believe that it was, see Doyle v. Ohio, 426 U.S. 610 (1976), for I believe that the district court's grant of habeas corpus relief can be affirmed merely on the basis of Kwallek's second and third attempts to end the interview. The majority, in an assertion I find plainly baffling, ignores the fact that the Alaska courts assumed, and the State now concedes, that admitting these requests was error. To the majority, the admissibility of these requests represents merely a "closer question." Maj. at 3