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Name: Trillo v. Biter
Case #: 11-15463
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/16/2014

In murder case, prosecutor’s comments regarding defendant’s “lame story” and the “meaning” of reasonable doubt were improper but harmless. Trillo was convicted in California of second degree murder for the shooting death of a man at a party. His conviction was affirmed on state appeal and he filed a federal habeas petition. Held: Affirmed. Trillo’s theory in state court was self-defense; during a fight at a party he was hit in the back, turned around and saw a person with a knife advancing on him. He shot and killed the person. During argument the prosecutor stated Trillo’s first story was “a lame one:” “I wasn’t the shooter,” implying Trillo changed his theory of the case. An objection was sustained and the jury admonished. The comment was improper but the court ameliorated any prejudice by sustaining the objection and admonishing the jury. The prosecutor also suggested defense witnesses coordinated their testimony to protect Trillo. A motion for mistrial and curative statement was denied. The statement was proper as there was a sufficient basis in the testimony for it. Finally, the prosecutor described reasonable doubt as a decision with which the jury would be comfortable and could explain to a neighbor. After objection the court told the prosecutor to continue, but to “relate to the evidence.” This was improper argument because the government cannot pressure a jury to convict. However, Trillo was not prejudiced because, when considered in context of the entire trial, there is no reasonable probability the jury would have reached a different result absent the comment.

Trial counsel was not ineffective for failing to object to other remarks by the prosecutor. The prosecutor made comments about Trillo’s gang connections and stated Trillo removed his shirt for the fight, implying he instigated it. The record reasonably supported the inference that Trillo removed his shirt; there was powerful evidence that Trillo did not act in self-defense, so he was not prejudiced by the gang comments.

Trillo was not denied the right to present a defense by exclusion of a witness’s statement to the victim. Trillo sought to introduce evidence that a witness at the party approached the victim after the shooting and said “Was it worth it?” to support his self-defense theory, i.e., that the victim did something that caused the shooting. The trial court would not admit the evidence as a spontaneous statement. A federal court does not determine whether the statement was admissible under state law, but only whether the state evidentiary rule violates the federal Constitution. The exclusion of evidence violates the Constitution if it is sufficiently reliable and crucial to the defense. Here there was no due process violation because there was no corroboration for the witness statement and it is not clear what it meant.