Robert Dorr v. Earl Hauser ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT R. DORR, No. 19-35498
Petitioner-Appellant, D.C. No. 3:18-cv-00039-JKS
v.
MEMORANDUM*
EARL L. HAUSER,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, District Judge, Presiding
Submitted June 4, 2020**
Anchorage, Alaska
Before: GOULD, WATFORD, and BADE, Circuit Judges.
Robert Dorr appeals from the district court’s order denying his federal
petition for a writ of habeas corpus. We affirm.
1. As a factual matter, the Alaska Court of Appeals reasonably determined
that Dorr was lucid, alert as to space and time, and aware that he was speaking
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 4
with police officers. The transcripts and audio recordings of the interviews reveal
that Dorr appears to have understood the questions he was asked and coherently
responded to them.
The state court reasonably rejected the conclusion offered by Dorr’s medical
expert, Dr. Woods, that Dorr was suffering from delirium when he spoke with the
officers. At an evidentiary hearing, Dr. Woods explained that, in general, the pain
and anxiety medications given to Dorr loosened his inhibitions, leaving him unable
to refrain from speaking freely. Dr. Woods highlighted specific examples of
Dorr’s responses that, in his view, indicated delirium. But the Alaska court
provided reasonable alternative explanations for many of those responses. For
instance, when asked what happened when Dorr and his wife “drove up to the little
supermarket there on Spenard and Wisconsin yesterday morning at about 5:00,”
Dorr responded, “Went to where?” Whereas Dr. Woods concluded that this
response showed cognitive difficulty processing information, the court found that
the question simply could have been confusing—after all, by “supermarket,” the
officer was referring to a gas station convenience store. Accordingly, we conclude
that the Alaska court’s decision was not based on an unreasonable determination of
the facts. See 28 U.S.C. § 2254(d)(2).
2. As a legal matter, the Alaska court’s holding that Dorr’s statements were
voluntary was not contrary to clearly established federal law, as determined by the
Page 3 of 4
Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). The closest on-point
Supreme Court case, Mincey v. Arizona, 437 U.S. 385 (1978), is readily
distinguishable. In Mincey, a police officer interviewed the defendant while he
was hospitalized after having been injured during a shootout with other officers.
Id. at 396. Mincey, encumbered by tubes, needles, and a breathing apparatus,
could answer the officer’s questions only by writing his answers down on a piece
of paper. Id. Mincey repeatedly asked the officer to stop interrogating him until
he could obtain counsel, yet the officer continued questioning him for four hours.
Id. at 396, 399–400. Mincey was in unbearable pain, his responses to many
questions were incoherent, he repeatedly lost consciousness during the interview,
and he incorrectly believed that he was being questioned by several officers rather
than just one. Id. at 398–401, 399 n.15. Conversely, here, Dorr was initially
interviewed for only about 40 minutes, he did not ask the officers to leave, and he
was coherent. When Dorr invoked his right to counsel during the interview the
next day, the officers left. The Alaska court’s holding that Dorr’s statements to
police were voluntary was not contrary to or an unreasonable application of
Mincey.
3. Even if the state court erred in admitting Dorr’s statements at trial, any
such error was harmless. Dorr argues that he would not have testified and
subjected himself to a difficult cross-examination had prosecutors not introduced
Page 4 of 4
his statements at trial. But given the volume of undisputed evidence establishing
that Dorr shot and killed his wife—including testimony from multiple
eyewitnesses—Dorr’s defense that he acted in the heat of passion during the
shooting all but required him to testify. When Dorr did take the stand, his
testimony was, in relevant part, consistent with his statements to law
enforcement—that he did not intend to kill his wife, but rather shot her in a
moment of panic. On these facts, we cannot say that the introduction of Dorr’s
statements at trial had a substantial and injurious effect or influence in determining
the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993).
AFFIRMED.