Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Danny LEWIS, Petitioner-Appellant,v.R.G. BORG, Respondent-Appellee.

No. 90-16084.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


Danny Lewis, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. Lewis contends the district court erred in determining the alleged claims of prosecutorial misconduct did not deny him of a fair trial. We have jurisdiction pursuant to 28 U.S.C. § 2253, and review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). We affirm.

We review due process claims based upon alleged prosecutorial misconduct to determine if they so infected the trial with unfairness as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). We examine the improper conduct to determine "whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990); see United States v. Nadler, 698 F.2d 995, 1002 (9th Cir. 1983) (when reviewing the cumulative prejudicial effect of several alleged errors, court determines whether the errors materially affected the jury's verdict in light of the strength of the government's evidence).

Before trial, the trial court ruled that evidence of Lewis's prior convictions was inadmissible. Lewis contends that the prosecutor "elicited inadmissible testimony" from a prosecution witness during direct and redirect examination regarding (1) Lewis's parole or probation status at the time of the crime, and (2) a prior robbery conviction.

First, the witness referred only to a parole or probation officer being present at the time the defendants were arrested at Lewis's uncle's house. The witness did not testify as to which of the several codefendants was on parole or probation, or why the probation officer was present during the arrest. Moreover, the witness was immediately stopped from testifying as soon as he mentioned the probation officer. Finally, the trial court admonished the jury that the parole or probation officer had nothing to do with the case, and they were to disregard the reference that was made to a parole or probation officer. See Greer, 483 U.S. at 766 n. 8 (jury is presumed to follow instructions to disregard inadmissible evidence, unless there is overwhelming probability it will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant) (citations omitted). Given these circumstances, the error did not so infect the trial so as to deny Lewis a fair trial. See id. at 765.

Second, on redirect examination, the witness made reference to Lewis being responsible for a robbery. The witness was stopped by the trial judge before he could finish his sentence. The judge ordered the witness's answer stricken from the record, and also advised the jury to disregard the answer. We must presume the jury followed the court's instructions. See Greer, 483 U.S. at 766 n. 8. Furthermore, it does not appear that the alleged errors affected the jury's verdict, particularly in light of the government's evidence against Lewis. See Simtob, 901 F.2d at 806; see also Nadler, 698 F.2d at 1002.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


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