Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

MEMORANDUM^* 

Scott Sloane appeals the denial of his writ of habeas corpus. He was convicted of first-degree murder with the use of a deadly weapon, sexual assault and first degree kidnapping with the use of a deadly weapon. Sloane contends that the prosecutor made remarks to the jury, which, he claims, concerned his decision not to testify, denying him a fair trial. In addition, he argues that a jury instruction was unconstitutionally vague, and that the cumulative effect of the prosecutor's misconduct and the vague jury instruction deprived him of a fair trial.

Reviewing Sloane's claims de novo, Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir. 1989); United States v. Guido, 597 F.2d 194, 198-99 (9th Cir. 1979), we conclude that although the prosecutor's actions were grievous, they do not rise to a constitutional violation. We also hold that the jury instruction was not unconstitutionally vague. We therefore affirm.

* Sloane contends that the prosecutor undermined his right to a fair trial by casting aspersions on his decision not to testify. To support his claim, he relies on three statements made by the prosecutor, which are not in dispute. Taken together, the statements raise serious questions about the prosecutor's ethics and professionalism. However, based on the case law, we cannot conclude that the prosecutor's statements, when viewed in context, deprived Sloane of his constitutional right to a fair trial.

* Sloane objects to the following statement made by the prosecutor during closing argument: "In this case, as it has transpired, I feel cheated." The prosecutor went on to say:

I don't know about all of you. I would think you feel cheated, too. Because something very strange happened in this case. Think about as the story started to unfold and the kidnap report came out, the story to Laurie, first of all, and then the kidnap report which Officer James took from Scott Sloane.

Did you have the same feeling that I did that an alibi was starting to be created here?

Supplemental Excerpt of Record ("SER") 2 at 2150-51.

Sloane argues that by making such a statement, the prosecutor intended to allude to his failure to testify. The government counters that the prosecutor's statement came in response to two alternative theories that Sloane put forward: first, that on the night of the murder Sloane had been kidnapped by two black men who had attempted to rob him, and second, that an unknown individual had confessed to a witness, Steve Sommers, that he had committed the murder of the victim, Nancy Menke. The prosecutor's statement, the government argues, merely expressed frustration at Sloane's alternative defenses.¹  Indeed, later during argument, the prosecutor stated: "That's how I feel cheated. It isn't fair that you've been given these alternative theories, when there isn't much basis for them." SER 2 at 2157-58.

The prosecutor's statement does not rise to a constitutional violation. As we stated in United States v. Bagley, 772 F.2d 482, 494 (1985), cert. denied, 475 U.S. 1023 (1986):

A prosecutor may properly reply to the arguments made by defense counsel, so long as the comment is not manifestly intended to call attention to the defendant's failure to testify, and is not of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.

Viewed in this context, we conclude that the prosecutor's comment did not "manifestly" call attention to Sloane's failure to testify, but rather, was aimed at emphasizing the implausibility of the defense's alternative theories. The prosecutor did not refer to Sloane's failure to testify and there is no reason to believe that this comment, made in the context of the defense counsel's alternative theories, would be interpreted by the jury as such.

B

Sloane also objects to the following comment made by the prosecution: "Now, if he's really been kidnapped, if that story is really true, and if I'm mistaken in my assumptions about the evidence here, then Scott Sloane has nothing to hide."

Sloane argues that because he was the only person who could rebut the prosecutor's statement that he had nothing to hide, the statement necessarily was a comment upon his failure to testify. The government counters that the prosecutor was merely attempting to highlight the alleged implausibility of Sloane's kidnap story. Prior to the statement, the prosecutor had noted that it was highly suspicious that Sloane had allegedly run home after being kidnapped by the adult males only to have a witness report that he was not out of breath. In addition, the prosecutor had noted that it was strange that Sloane had not told his friend, Laurie Martin, that he had been kidnapped, but said instead only, "Laurie I need a ride to my car."

"If he has really been kidnapped," the prosecutor said, "then he has got nothing to hide. He is in fact, probably in the eyes of a 16 year old, now that he has gotten away, somewhat of a hero. He is going to run home as fast as he can, hit the door, and start talking...." SER 4 at 1997 (emphasis added).

Although, if taken by itself, the prosecutor's comment might be seen as referring to the defendant's failure to testify, when viewed in the context of the prosecutor's entire argument, we conclude that his statement referred to the circumstances surrounding the alleged kidnap.

C

Sloane also complains that the prosecutor improperly stated that "none of us know how good or bad a runner [Sloane] is." The comment was made in response to a defense witness who testified that after running the distance between the scene of the crime and Sloane's home, he had concluded that the distance was too great for Sloane to have been at the murder scene at the time of the crime. Questioning the accuracy of comparing the running time of the defense witness, who was 40 years old, with that of Sloane, 16, the prosecutor stated:

Maybe most generally, with a sixteen year old, almost seventeen year old like Scott Sloane, and the condition he appears to be in--none of us knows how good or bad a runner he is--but most sixteen year olds, the recovery rate would probably be better than us forty year olds?

SER at 1939 (emphasis added).

There is no evidence that the prosecution intended to call attention to Sloane's silence. Nor does the prosecutor's statement raise any inference of guilt from Sloane's failure to testify. Instead, the comments, viewed in the context of the record, appear only to call attention to the lack of probative significance of the witness's testimony. Accordingly, we hold that the prosecutor's statements did not implicate Sloane's failure to testify, and thus, did not deprive Sloane of a fair trial.

II

Sloane also contends that the prosecutor's misconduct so infected the trial that he was denied due process. He argues that the district court erred in finding that three instances of prosecutorial misconduct did not rise to the level of a constitutional offense. To prevail, Sloane must show: 1) the existence of prosecutorial misconduct; 2) that the issue was preserved, and 3) that the defendant was prejudiced by the misconduct. See United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987).

It is undisputed that the prosecutor's placement of an 8 1/2 by 11 photograph of Sloane before the jury, which had not been admitted in evidence, was egregious. There is no justification for showing the jury any exhibit that a trial judge has excluded as prejudicial. However, even egregious misconduct may not rise to the level of a constitutional offense. To prevail, Sloane must show that the misconduct was so egregious that it denied him his right to due process, see Darden v. Wainwright, 477 U.S. 168, 179-83, and that it more probably than not affected the verdict. See Christophe, 833 F.2d at 1301.

The picture²  showed Sloane with his arrest numbers printed at the bottom. Because the jury already knew that Sloane had been arrested, the mug shot would not cause the jury to return a different verdict than it otherwise would. The mug shot did not show the defendant committing a heinous act; nor did it reveal any information that the jury did not already know. However improper the prosecution's action was, there is no evidence that it inflamed the jury or affected the verdict.

Sloane also complains that despite the government's agreement not to introduce the testimony of a criminologist regarding two allegedly false auto-burglary reports filed by Sloane, the prosecution referred to such reports in his closing argument. The prosecutor stated:

[I]t just came to me about Penny O'Hair [sic]. Why was she looking at two auto burglary reports submitted by Scott Sloane? Could it be that we have a professional victim here? We don't know the answer to that but it is certainly worthy of your consideration.

ER at 1993.

Because the defendant did not place his character in issue by taking the stand or giving evidence of his good character, it is undisputed that the prosecutor's actions constituted misconduct. Sloane argues further, however, that the statement deprived him of a fair trial because the prosecution placed nonadmitted evidence before the jury in a way that he claims was prejudicial.

We do not believe that the "comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. Moreover, there is no evidence that the statements more probably than not affected the verdict because the government introduced substantial evidence of defendant's guilt. Among other evidence, the government showed that the gun used to kill the victim was owned by Sloane's mother and was in Sloane's car on the day of the murder; that the handcuffs used to bind the victim were similar or identical to a pair of handcuffs Sloane took from his employer's desk; that Sloane had attempted to bribe a witness to testify that he had never seen Sloane with handcuffs; that Sloane was seen near the crime covered with blood moments after the murder; and that Sloane's blood type fit the blood found in the semen inside the victim's body.

Based on the overwhelming evidence of Sloane's guilt, we find it highly unlikely that the prosecutor's comments influenced the jury's verdict. See Christophe, 833 F.2d at 1301.

III

Sloane contends that Jury Instruction No. 6 was unconstitutionally vague because it did not properly define "premeditation." The instruction read:

Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.

Premeditation need not be for a day, an hour, or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been proceeded by and has been the result of premeditation no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder.

The magistrate ruled that Sloane's objection could not be considered because he merely challenged the correctness of a jury instruction under state law, and thus, could not be construed as asserting a deprivation of federal rights. The district court incorporated the magistrate's finding in its conclusions.

Even assuming arguendo that Sloane may assert his claim, we find it meritless. The first sentence of the jury instruction defined premeditation, leaving no basis for his claim that the instruction defined premeditation by merely reusing the same word. Moreover, Sloane has shown no prejudice arising from the jury instruction. Accordingly, we affirm.³ 

AFFIRMED.