Stephen Leroy Nefstad
Multnomah County - Oregon
Sentenced to death: 2/23/1988
Nefstad and Reyes Miranda stabbed Steven A. Jackson to death in 1987
while robbing him of his pickup and bank card. Jackson of Oregon City
had 37 knife wounds on his legs and chest. Nefstad's sentence was
overturned based on a 1989 U.S. Supreme Court ruling.
Interesting fact: Nefstad and Miranda were the first two aggravated
murder defendants to be tried jointly since reintroduction of the death
penalty in Oregon
Status: Life sentence.
66 F.3d 335
George Baldwin, Respondent-appellee
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 12, 1995.
Decided Sept. 1, 1995
Before: GOODWIN and HUG, Circuit Judges, and SCHWARZER, District
Stephen Nefstad, an Oregon state prisoner, appeals the district
court's denial of his 28 U.S.C. Sec. 2254 habeas petition. He claims
that (1) the trial court erred in denying his motion for judgment of
acquittal because the State failed to establish proper venue and
jurisdiction; (2) his due process rights were violated by two separate
instances of prosecutorial misconduct; (3) his due process rights were
violated by trial court evidentiary rulings; and (4) the trial court
erred by not giving his requested jury instructions. We affirm.
Nefstad contends that
the trial court erred in denying his motion for judgment of acquittal
because the State failed to establish venue and jurisdiction beyond a
reasonable doubt. We review the denial of a petition for habeas corpus
de novo. Jeffries v. Blodgett, 5 F.3d 1180, 1187 (9th Cir.1993), cert.
denied, 114 S.Ct. 1294 (1994). When reviewing to determine whether
sufficient evidence existed to support a conviction, we determine if, "viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). State court determinations on factual
issues are presumed correct. 28 U.S.C. Sec. 2254(d).
We conclude that the
evidence, viewed in a light most favorable to the prosecution, shows
that the victim was murdered in Oregon. The prosecution presented the
The victim met Nefstad
and codefendant Reyes Miranda in a bar in Oregon and was last seen
leaving the bar with the two defendants. Less than an hour later, a bank
surveillance camera photographed Miranda stealing $200 from the victim's
account through an automatic teller machine in Oregon. Blood appeared to
be on Miranda's shirt. Almost no blood was found at the scene where the
body was dumped. Miranda's car, however, was soaked with the victim's
blood. A medical examiner testified that the victim's blood was out of
his body before it was dumped in a gorge in Vancouver, Washington. The
examiner's testimony also established that the victim was stabbed while
sitting in the car and would have lost his blood there. The victim
sustained stab wounds to his heart and lung that would cause the victim
to have died within minutes of receiving those wounds.
Furthermore, the court
instructed the jury that to find a defendant guilty of aggravated murder,
it must find beyond a reasonable doubt "that an act or an element of the
offense was committed in Multnomah County, Oregon" and that "either the
robbery or the homicide commenced in Oregon." The court similarly
instructed the jury for the felony murder charge. It is presumed the
jury followed the instructions. United States v. Van Cauwenberghe, 827
F.2d 424, 432 (9th Cir.1987), cert. denied, 484 U.S. 1042 (1988).
Both the Oregon Supreme
Court and the district court found that sufficient evidence existed to
allow the jury to reasonably infer that the murder occurred in Oregon
and that the defendants thereafter disposed of the body in Washington.
We agree. The district court did not err in determining that the State
met its burden of establishing beyond a reasonable doubt that venue and
jurisdiction were proper in Oregon.
contention is that two separate instances of prosecutorial misconduct
violated his due process rights. "When prosecutorial conduct is called
in question, the issue is whether, considered in the context of the
entire trial, that conduct appears likely to have affected the jury's
discharge of its duty to judge the evidence fairly." United States v.
Simtob, 901 F.2d 799, 806 (9th Cir.1990) (citing United States v. Young,
470 U.S. 1, 11 (1985)). "The relevant question is whether the
prosecutors' comments 'so infected the trial with unfairness as to make
the resulting conviction a denial of due process.' " Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637 (1974)).
Nefstad contends that
his due process rights were violated when the court allowed prosecutors
to make remarks to potential jurors that could be interpreted as
expressing the prosecution's belief that Nefstad would be found guilty.
Nefstad likens this situation to one where the prosecutor vouches for
the credibility of its witnesses. We conclude that Nefstad's due process
rights were not violated.
The State sought the
death penalty against Nefstad. As such, it was allowed to inquire into
the jurors' views on the death penalty and whether those views would
prevent or substantially impair the performance of their duties as
jurors in accordance with their instructions and their oaths. Wainwright
v. Witt, 469 U.S. 412, 424 (1985) (reaffirming standard established in
Adams v. Texas, 448 U.S. 38 (1980)). The Oregon Supreme Court properly
concluded that the statements were "neither expressions of belief nor
improper." It stated:
A prosecutor cannot
effectively learn the views of a juror who thinks that the inquiries
into the death penalty merely are academic, and who does not understand
that there truly exists the possibility of ultimately having to decide
whether a defendant should receive a sentence of death. To answer the
prosecutor's questions candidly, the juror must anticipate fulfilling
the role of a factfinder not only during the guilt phase but also during
the penalty phase of the trial.
State v. Nefstad, 789
P.2d 1326, 1330 (Or.1990). The prosecutors were merely attempting to
ferret out views on the death penalty. In United States v. Young, 470
U.S. at 11, the Supreme Court stated that "a criminal conviction is not
to be lightly overturned on the basis of a prosecutor's comments
standing alone, for the statements or conduct must be viewed in context."
Viewed in the context of possibly reaching the penalty phase and having
jurors face the difficult question of invoking the death penalty, the
prosecutors' comments were not improper.
Nefstad also contends
that his due process rights were violated by improper closing argument
when the prosecutor asked the jury to compare a photograph of the victim
before the murder with an autopsy photograph of the victim. Nefstad
contends that this tactic improperly appealed to the jurors' emotions
and was irrelevant. We disagree.
To prove its case, the
prosecution had to establish that Nefstad acted intentionally when he
murdered his victim. " 'The district judge is in a much better position
to evaluate the prosecutor's conduct and its impact. This court properly
accords considerable deference to the trial court's view of such matters.'
" United States v. McChristian, 47 F.3d 1499, 1508 (9th Cir.1995) (quoting
United States v. Sanchez-Rubles, 927 F.2d 1070, 1077 (9th Cir.1991)). We
again agree with the Oregon Supreme Court when it stated:
The photographs of [the
victim's] corpse show literally dozens of stab wounds, on his face and
on virtually every other part of his body. These photographs [before and
after] obviously were strong evidence that [the victim's] murder was
committed by defendants with intent. [The victim's] condition while he
still was alive in contrast to the condition of his corpse directly was
relevant to remove any doubt from the minds of the jurors that defendant
Nefstad acted with intent when he murdered [the victim].
Nefstad, 789 P.2d at
1350-51 (emphasis added). Because intent was an essential element of the
crime, the trial court did not err in allowing the prosecutor to ask the
jurors to compare before and after photographs of the victim.
Finally, we conclude
that Nefstad failed to exhaust his remaining contentions. To satisfy the
exhaustion requirement, Nefstad must have fairly presented his federal
claim to the state courts. "If a habeas petitioner wishes to claim that
an evidentiary ruling at a state court trial denied him due process of
law guaranteed by the Fourteenth Amendment, he must say so, not only in
federal court, but in state court." Duncan v. Henry, 115 S.Ct. 887, 888
(1995) (per curiam) (emphasis added).
Nefstad did not inform
the state courts that he was pursuing a federal due process claim either
with respect to his two alleged state evidentiary error claims or his
claim of error in the jury instructions. Mere citation of federal cases
is insufficient to notify the state court that the petitioner is
pursuing a federal due process claim. Furthermore, the state court gave
no indication that it understood that Nefstad was pursuing a federal
claim. To the contrary, the Oregon Supreme Court's analysis was confined
to state law. See Nefstad, 789 P.2d at 1340-42, 1343-45, 1348-49.