United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision.
Petitioner Alvin Rankin, Jr., challenges his 2005 Nevada state conviction, pursuant to a jury verdict, of one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, and two counts of attempted robbery with the use of a deadly weapon as well as his adjudication and sentencing as a habitual criminal. He challenged his conviction in the state courts on direct appeal and on state post-conviction review.
The summary of the trial evidence below serves as backdrop to the Court's discussion of all of the claims presented, but the summary is framed in particular for the discussion of Grounds 2 and 3(c).
In Ground 2, petitioner alleges that he was denied rights to present a defense and to a fair trial because the trial court barred the defense from establishing on cross-examination that the police had not conducted gun shot residue or blood spatter testing to determine whether there was physical evidence connecting Rankin to the robbery. The state supreme court held that the trial court erred but that the error was harmless. The harmless issue is addressed on federal habeas review under the standard in Brecht v. Abramson, 507 U.S. 619 (1993). Under that standard, the question is whether the error had substantial and injurious effect or influence in determining the jury's verdict.
In Ground 3(c), petitioner alleges that he was denied effective assistance of trial counsel when counsel did not have his clothing tested for gunshot residue and/or blood spatter.
Shortly after midnight on July 3, 2004, Victor Sangines, Jesus Lera and Mario Sangines were subjected to a robbery or attempted robbery by two black males in the parking area outside the Sangines' apartment. The State's theory at trial was that petitioner Alvin Rankin was the robber referred to as the "second robber" during trial testimony. The defense maintained that Rankin had been mistakenly identified as one of the robbers. There was no physical evidence linking Rankin to the robbery.
The trial evidence tended to establish the following.
According to Victor Sangines' testimony, the incident occurred at approximately 12:30 a.m. right after he had parked his vehicle at the apartment building. The apartment building was on Tara Avenue between South Arville Street and South Valley View Boulevard, closer to the Arville end of the block. The location was in the central Las Vegas valley, approximately a mile west of the north end of the Las Vegas Strip, on the other side of the interstate that divides the central valley. The apartment building was on the north side of Tara facing the street to the south, and Sangines was parking the car on the north and back side of the building in a private alleyway and parking area. Victor Sangines had been driving; his brother Mario was sitting in the rear passenger seat behind him; and Jesus Lera was sitting in the front passenger seat.
As Victor Sangines was exiting from the driver's side, a man came from behind a van that was parked in the next space. As he saw the man, the "first robber, " the man pulled a revolver from under his T-shirt and pointed it at Sangines. At this point, the first robber was standing at the front of the car near the left headlight, with the still open driver's side door between them. Sangines testified that the first robber "was pointing the gun right in my chest and my face." He testified that "I kind of stare in the gun, you know, I thought he was gonna shoot right way" and that "I was kind of scared."
Sangines testified that at "that exact moment" a second man came from behind the van and walked over to the right front corner of the car. The second man, the "second robber, " was giving orders to the first robber. When asked whether the second robber was also carrying anything in his hands, Sangines replied: "I didn't see clear one hand." He testified that "I just saw one hand, because he was waving."
On cross-examination, Sangines elaborated further:
Q. Did he - did you ever see that second individual with a gun?
A. No, because he was - first of all, I was putting my attention on the gun [being pointed at him by the first robber]. I was staring at the gun first and I just saw the guy coming out and stay over there and the guy who came behind, he was giving orders to the guy with the gun.
#29, Ex. 28, at 58.
At this point, Victor Sangines' younger brother Mario was trying to get out of the car from behind Victor, but he tripped as he was doing so. The second robber started yelling something along the lines of "shoot him, they gonna' get something from the car, they got a gun" suggesting that Mario was reaching for a gun. Victor turned to help his brother, who was at high risk for excessive bleeding because of medication that he took after prior heart surgeries. As Victor turned to help his brother, he felt the first robber's gun right behind his ear.
Both robbers then were yelling "we want the money." Victor Sangines reached into his pocket with his fingers, pulled out his tip money from his cab fares that night, and gave it to the first robber. His brother Mario told the men that he did not have anything, and he showed the first robber his empty wallet. At about this point, Jesus Lera was trying to get out of the passenger side at the urging of the second robber. Victor Sangines could not see if Lera gave the second robber any money.
The first robber then started pushing Victor Sangines with the gun behind his ear, trying to move the men to the back of the car. The second robber was yelling to the first to "shoot them, they're going to run away." At the back of the car, the first robber told them to get down on the ground. Mario said to Victor that the robbers were going to kill them, but Victor said that they would not because they had got what they wanted. He pushed his brother down and lay partially on top of him to protect him.
At approximately this point, Victor Sangines saw Jesus Lera at the back right taillight. Lera did not appear to want to go down, like he was scared and wanted to run. Sangines testified that Lera had his hands on the trunk, and that he knew that the second robber "was having something in the back of Jesus or something like that, because he couldn't move."
Sangines' related cross-examination testimony similarly left some ambiguity in the manner in which the second robber was controlling Lera's movement:
Q. You indicated you never did actually see him with a gun, that second gun?
A. No, but he was holding Jesus.
Q. He was dealing directly with Jesus, right?
#29, Ex. 28, at 66.
As they were moving, Sangines felt the gun muzzle move to the back of his neck. As he was going to the ground, he felt a "very strong impact" on the back of his head. He thought that it may have been the gun because he did not feel it being pressed to his neck anymore, but he did not know for sure.
After he was hit in the back of the head, Victor Sangines went to the ground "and suddenly I hear a shot." He was face down; and he did not see Lera, the shot being fired, or who fired the shot. Sangines then felt himself being kicked, but he did not see who was kicking him.
After the shot, the Sangines brothers jumped up, and Mario started yelling to call the police. At this point, Lera was on his knees. The two robbers started to run. Victor Sangines gave chase for a few feet, but one of the robbers fired another shot, prompting Sangines to stop. He was not sure which one of the robbers fired the second shot as they were running.
The robbers ran south between the apartment buildings and across Tara. They then split up with one going west (toward Arville) and the other southeast between buildings (toward Valley View).
When Victor Sangines returned to the other two men, they saw that Lera's arm was bleeding. Mario again told Victor to call the police, reminding him that he had a cell phone in his pocket. Victor testified that he had been so excited that he forgot that he had his cell phone in his pocket. He further testified that he was so excited that he told the 911 dispatcher instead that he had been shot.
The initial responding police officer was on patrol very close to the location. He arrived while Victor Sangines still was describing to the 911 dispatcher what had happened.
Mario Sangines or Sangines Diaz testified substantially along the lines of his older brother's testimony regarding the incident through to the 911 call. Mario even more clearly stated a belief that both robbers had a gun, although he ultimately acknowledged that he did not actually see a second gun:
Q. Could you see who was shooting [the first shot]?
A. This guy [which is how the witness had been referring to the defendant at trial] - I don't see who is shooting, because I was in the ground.
Q. Of the two guys the one that had the gun to Victor's head and the Defendant, which one had a gun?
A. I think both have guns.
Q. You saw both with a gun, yes?
MR. PERCIVAL: Objection. Leading.
MR. LEWIS: He's shaking his head. I'm getting him to say yes or no.
Q. You saw both of them with a gun?
A. Yeah, this guy, he -
Q. This guy told what?
A. He show me with his hands to the other guy, what he need to do.
Q. When did you first notice that the Defendant had a gun?
A. You know, when I was back in the car, I looking like this and I see it.
Q. Do you remember what color or what kind of gun?
A. I don't see the gun. I see him. He was like this.
Q. When you say he was like this you're holding your hand like you're holding something, pointing?
#29, Ex. 28, at 95-96.
Jesus Lera,  also testified to substantially the same events, but not in exactly the same sequence or order. Lera has both robbers moving more in unison and in close proximity to one another. Under Lera's testimony, the two robbers first dealt with the Sangines brothers and moved them to the back of the car. The two robbers then together made Lera exit the vehicle, moved him to the back of the vehicle, and began hitting and kicking him. He testified that "they" hit him in the head with a gun and that he raised his arms to protect his head. According to Lera, he was shot in the arm while he was holding his arms up by his head in this defensive position, while down on one knee.
On cross-examination, defense counsel was able to secure, at least initially, testimony from Lera placing the second robber over by Victor Sangines at the time that Lera was shot. However, when counsel then asked the ultimate question as to whether the first robber was closer, Lera hedged:
Q. The first guy was closer to you than the second guy was when you were at the back of the car?
A. Yes, a little bit.
#29, Ex. 28, at 132. Counsel thereafter elicited testimony from Lera that he was "almost sure" that it was the robber "of the blue shirt" who shot him:
Q. You didn't see which one of the two individuals actually shot you, right?
A. Yeah. Well, I kind of looked out and I'm almost sure it was the guy of the blue shirt.
Q. You're almost sure?
#29, Ex. 28, at 134.
Picking back up with the time line, Officer Mark Kusiak was the officer who arrived first on the scene, while Victor Sangines still was talking to the 911 dispatcher. Officer Kusiak described Sangines' demeanor as "having what we call high speed wobbles" or "hyper." He was speaking very rapidly and going back and forth from one idea to another sporadically.
Victor Sangines gave Officer Kusiak descriptions of the two robbers, using numerical height and weight references as well as comparisons to his own height and weight. Officer Kusiak described Sangines as being "probably about 5'6", 5'7", maybe about 210, little wider build."
Sangines described what Kusiak referenced as "subject number one" and "subject number two." The record does not reflect that this "subject" order dovetails neatly with the "first robber" and "second robber" order in which the Sangines brothers and Lera referred to the robbers at trial.
Sangines described "subject number one" as being a 5'10" black male, but then immediately thereafter he said "about my size." Kusiak pointed out to Sangines that he was not 5'10" but instead was "more 5'6", 5'7", in that area." Sangines said "okay." Sangines estimated the weight of subject number one as "about 220, 210 pounds" and said that he was wearing a "black T-shirt, black pants."
Sangines described "subject number two" also as a 5'10" black male, and he further stated that he was 185 pounds with a "read [sic] T-Shirt, blue pants."
Officer Kusiak radioed these descriptions to the dispatcher who relayed them to other officers who were setting up a perimeter as Kusiak was speaking with Sangines.
As Kusiak and Sangines had been speaking, within a matter of only minutes from the first initial dispatch, four officers in patrol cars had created a perimeter around several blocks with apartment buildings in the directions in which the robbers had fled. The rectangular perimeter was bounded by the north-south streets of Arville and Valley View and the east-west streets of Tara and Pennwood Avenue, which was two blocks south of Tara. Each officer stationed his cruiser at one of the four intersections, used his overhead lights to illuminate the corner, and then shone the two side spotlights respectively down the two streets bounding that corner of the rectangle. That way, the four officers collectively were able to see persons on or crossing the perimeter streets into or out of the area. Meanwhile, canine-assisted patrols were searching the interior area of the perimeter on foot.
Within eight minutes of the 00:24 a.m. initial dispatch, Officer Kusiak began receiving radio calls that officers had possibly involved persons in custody. He took Victor Sangines to three different field showups at or near corners of the perimeter. For the showups, Kusiak told Sangines that the subjects would not be able to see him in Kusiak's cruiser because the headlights, overhead takedown lights, and spotlights all would be shining toward the subject. Kusiak further told Sangines:
[W]hen we do get to the location of where these people are at, I need a hundred percent answer "Yes, this is the person" or "No, this is not the person."
If you have any doubt in your mind, you need to let me know. I cannot make an arrest or take that person into custody with some doubt.
Has to be 100 percent yes, 100 percent no.
#29, Ex. 29, at 9, 12, 17-18 & 26-27.
Officer Kusiak first took Sangines to a showup at the southwest corner of the rectangle, at Arville and Pennwood. When the subjects were placed in front of the vehicle, Sangines immediately said: "No, not involved."
Meanwhile, Officer Barry Hinote had set the perimeter at the southeast corner of the rectangle, at Valley View and Pennwood. He arrived there at approximately 00:29 a.m., within five minutes of the initial dispatch. Within a minute of his arrival, only six minutes from the first dispatch, Officer Hinote saw an individual who he identified at trial as Alvin Rankin step out of the shadows, between one of the apartment buildings and a van and walk east on the sidewalk on the north side of Pennwood toward his vehicle.
Officer Hinote believed that Rankin fit one of the descriptions that he had been given, and he requested Rankin to come over to his patrol car. Rankin put his hands in the air, walked to the front of the vehicle, and laid his upper body across the hood. He was perspiring profusely and appeared exhausted, with the officer observing that his heart was beating rapidly. Rankin was wearing all black clothing. He was covered in what appeared to be brown dirt, "[m]ostly on the front of his torso and upper thighs." He had a new scratch or "deep... laceration like a cut of some kind" across the bottom of his Adam's apple. He also had a fresh, open wound to the palm of his right hand.
The straight line distance between the scene of the incident and the corner of Valley View and Pennwood would appear to be less than a half mile. An individual walking at a brisk five mile per hour pace would cover a straight line distance of less than a half mile in under six minutes.
As Officer Kusiak was bringing Victor Sangines around a few minutes later, Officer Hinote had Rankin stand in front of his patrol car facing out toward the other vehicle. Rankin's hands were handcuffed behind his back, but the handcuffs would not be visible to the occupants of the other vehicle. Hinote stood besides Rankin with his own arms also behind his own back, to create an appearance that both men simply were standing in a similar position with their arms behind their back.
After Officer Kusiak drove up and stopped the vehicle, Sangines immediately said: "Yes, he is one of the gentlemen that was involved." Officer Kusiak described the subject at the second showup as "a black male, approximately five foot seven, to me he looked to be about 185 pounds, black T-Shirt, black pants." The officer further observed:
"[H]e was sweating profusely. His chest was pounding up and down like he had just did running or high exertion type activity."
#29, Ex. 29, at 19-20, 27-28 & 30 (Officer Kusiak refers to Sangines making the positive identification "the moment I stopped my vehicle").
Officer Kusiak thereafter took Sangines to a third showup at Silver Dollar Avenue and Valley View, which was to the north of the second showup at approximately half the distance to Tara. Sangines stated that the individual at the third showup was not involved.
At trial, Victor Sangines identified Alvin Rankin on direct examination as the second robber. Sangines testified that Rankin was wearing baggie black pants and a dark T-shirt at the time. He could not recall whether Rankin was wearing anything on his head. He described Rankin's hair as short and his face as "kind of rough... like he didn't shave." He placed his weight at "maybe 180."
In his testimony at trial, Victor Sangines still was describing himself as 5'10" tall when comparing his height to that of the robbers:
Q. How tall are ...