by Dale Chappell

The U.S. Court of Appeals for the Ninth Circuit held that the use of unconvicted criminal conduct that was too dissimilar to the charged offense to obtain a conviction violates a defendant’s due process rights and granted habeas corpus relief, vacating a murder conviction and death sentence.

Martin James Kipp was arrested in January 1984 and charged with the rape and murder of Antaya Howard in Huntington Beach, California. The State also alleged a “special circumstance” that Kipp intended to murder Howard during the rape. He took his case to trial, and the prosecution introduced evidence of another rape and murder it alleged Kipp also committed. Even though Kipp was not convicted of that other crime, the prosecution was allowed to offer the jury all the evidence of that offense to show Kipp’s propensity to commit such a crime.

The other crime was the rape and murder of Tiffany Frizzell, who was found dead in September 1983 in her hotel room in Long Beach. The cause of death was strangulation, and there was evidence of a sexual assault. Kipp’s fingerprints were found in her hotel room. Howard was also strangled. Sexual assault was presumed, but no evidence was found. The trial court found the two crimes were similar enough and instructed the jury that the Frizzell case was admissible “if it warrants an inference that if the defendant committed another act, he committed the act charged.”

The case against Kipp in the Howard case was largely based on witness testimony that Kipp was the last person seen with Howard at a bar before she was found dead and that his clothes were “soiled” after that night with her. For half of the trial, the prosecution focused on the Frizzell case and the evidence found there. The jury deliberated for three days and found Kipp guilty of the charges. He was sentenced to death in the Howard case. Two years later, he was found guilty in the Frizzell case and again sentenced to death.

Kipp’s appeals and habeas corpus petitions dealt with the Howard conviction and sentence. He claimed that allowing the prosecution to introduce evidence from the Frizzell case violated his due process rights, among other claims. He argued that the Frizzell evidence relieved the prosecutor of its burden to prove the Howard case beyond a reasonable doubt. The court of appeal and California Supreme Court denied Kipp’s appeals and habeas petition, so he filed a federal habeas petition in the U.S. District Court for the Central District of California in March 2000. Sixteen years later, after an evidentiary hearing and amended petitions, the district court denied his petition on the merits.

On appeal to the Ninth Circuit, Kipp maintained his argument that his due process rights were violated by the Frizzell evidence. The Court concluded that the two crimes were not similar enough to permit use of the Frizzell evidence in the Howard case.

AEDPA Deference to the State Court

Before the Court could hear Kipp’s habeas appeal, it had to determine the standard of review. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a harsh restriction on federal courts hearing habeas petitions by state prisoners. Under 28 U.S.C. § 2254(d), a federal court may only grant habeas relief if the state court’s decision was (1) contrary to “clearly established federal law” (i.e., a U.S. Supreme Court holding) or (2) “an unreasonable determination of the facts.” However, if a state court fails to address the facts, a federal court may review them de novo or anew. The Court found that deference under § 2254(d)(2) applied because the state court adequately addressed the facts and denied Kipp’s claim on the merits.

A state court unreasonably determines the facts under § 2254(d)(2) when it either (1) neglects to make a finding of fact when it had the duty to do so, (2) makes factual findings under an incorrect legal standard, (3) uses a “defective” procedure for finding facts, (4) misstates the record in making findings of fact, or (5) ignores evidence that supports the petitioner’s claim. These were just some examples the Court gave, finding that the state court’s error here fell under the fifth example.

Comparing the Howard and Frizzell Cases

The state court noted several “shared characteristics” between evidence in both the Howard and Frizzell cases. It cited the victims’ young age, the victims’ gender, both were strangled, the victims’ bodies were carried to an area belonging to the victims, both bodies were covered with bedding, their upper bodies were partially clothed and the lower unclothed, the clothing was damaged, and their legs had bruises.

The state court called this a “highly distinctive pattern” to allow evidence from the Frizzell case in the Howard case against Kipp. The Ninth Circuit disagreed, saying that “some of the characteristics are unfortunately generic features of many rape-murders.” The only fact that was similar, that their upper bodies were partially clothed, was contradicted by the record, the Court noted. In photographs introduced by the State, Frizzell’s upper body was clothed and “unmistakably covered,” the Court said.

“More importantly, the state court failed to mention any of the differences between the two crimes, differences that far outnumber the similarities,” the Court said. It offered a dozen important distinctions between the two cases, including the evidence that Frizzell had been sexually assaulted and Howard had not (in fact, the rape charge against Kipp in the Howard case was later dismissed by the court for lack of evidence). There was also evidence that the cause of death for the two victims was not the same method, Frizzell’s body had defensive wounds and Howard’s did not, and Frizzell’s bra was taken by her killer but Howard’s wasn’t.

“We conclude that the state court’s determination that there was a ‘highly distinctive pattern’ between the Howard and Frizzell crimes was unreasonable in two ways,” the Court said. First, the court misstated the record in finding that Frizzell’s body was found the same way as Howard’s. Second, and more importantly, the court ignored evidence that supported Kipp’s claim that the crimes were too dissimilar to allow inference of connection during the trial.

“We therefore conclude that the state court’s fact-finding process itself was defective and renders the resulting finding that there was a highly distinctive pattern to justify admission of the Frizzell evidence unreasonable under section 2254(d)(2).”

The Merits of Kipp’s Claim

Having found that the state court unreasonably determined the facts of the case to forgo deference to the state court’s decision, the Ninth Circuit turned to Kipp’s claim. A due process violation occurs when “the admission of evidence rendered the trial so fundamentally unfair as to violate due process.” Larson v. Palmateer, 515 F.3d 1057 (9th Cir. 2008). According to the Court, the admission of evidence from other crimes violated due process here because the prosecution’s case was “solely circumstantial,” the crimes alleged were similar, the prosecutor relied on the other crime’s evidence at several points during the trial, and the other crime was “emotionally charged.”

Absent the Frizzell evidence, the case against Kipp was circumstantial, the Court said. “Based solely on the evidence presented about the Howard crime, the jury could have at most inferred that Kipp was with Howard the night in question, and they might have had sex.” The Court also concluded that “the prosecution expressly relied on the Frizzell evidence to prove the necessary intent to rape and intent to murder while attempting to rape.”

Furthermore, “the jury was exposed to extensive evidence of both crimes, such that Kipp appeared to be on trial for a double rape-homicide, without the means of defending himself against the Frizzell charges,” the Court explained.

The Court found the state court’s error prejudiced Kipp. To show prejudice, Kipp had to prove “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.” The Court concluded that Kipp met his burden of proof. The Court observed, “The prosecution needed the Frizzell evidence to show Kipp’s intent to rape and intent to kill during attempted rape.” This evidence was “critical,” the Court said.

Accordingly, the Court reversed the denial of Kipp’s federal habeas petition and remanded with instructions to issue a conditional writ of habeas corpus. See: Kipp v. Davis, 971 F.3d 939 (9th Cir. 2020).

Writer’s note: This is a rare case where a federal court found a state court unreasonably determined the facts under § 2254(d)(2) to grant habeas relief. It is highly instructional on what a court must do to reach such a conclusion, which of course could guide a state prisoner who intends to bring a habeas claim to federal court based on an unreasonable determination of the facts by a state court. The opinion cites numerous cases on the aspects of bringing and evaluating these types of claims. Thus, it is highly recommended reading for all habeas corpus practitioners.

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