LAM v. GOWER (2019)

MEMORANDUM **

California state prisoner Samuel Lam appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for inflicting corporal injury on a cohabitant, false imprisonment, brandishing a firearm, and simple assault. Lam asserts that the state trial court violated his Sixth Amendment rights by admitting two hearsay statements of the complaining witness. The district court denied the petition under the strictures imposed by 28 U.S.C. § 2254 and we affirm.

1. The state court determined that the first statement was non-testimonial because it was made in the context of a contemporaneous emergency. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (“[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency.”). To determine the primary purpose, we must “objectively evaluate[ ] the circumstances in which the encounter occurs and the statements and actions of the parties.” Lucero v. Holland, 902 F.3d 979, 989 (9th Cir. 2018) (quoting Michigan v. Bryant, 562 U.S. 344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011)). In this case, the victim’s statement took place during an initial interrogation after officers responded to a 911 call where the victim was visibly injured, shocked, and confused. Given these circumstances, we cannot say that the state court judgment was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).

2. The state court also concluded that admission of the second statement, although testimonial, was harmless because the statement was repetitive of the first one and therefore not prejudicial. This was not an unreasonable application of the law to the facts. See Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 2208, 192 L.Ed.2d 323 (2015) (the state court’s determination of harmless error was a reasonable application of controlling precedent). Lam has therefore not met his burden to show that the state court’s decision was objectively unreasonable. See id.

We affirm.