Babb v. Lozowsky

In a petition for habeas corpus, where a court determines with reasonable certainty that a jury reached a general verdict of guilt upon a valid theory, an erroneous instruction relating to separate theory of guilt is a harmless error.

Latisha Babb was convicted, under Nevada law, of robbery with a deadly weapon and first degree murder with a deadly weapon for the murder of John Castro. The district court concluded that the Kazalyn jury instruction given violated Babb’s due process rights and granted habeas relief because the instruction was not harmless error. The State appealed the grant of a writ of habeas corpus. The Ninth Circuit noted that Byford was a change in the law, not a clarification, and required that there be separate definitions for premeditation, deliberation, and willfulness for first degree murder. At the time this change in law occurred Babb’s conviction was not final, so Byford applied because it was a newly declared constitutional rule. Next, the Ninth Circuit considered in light of Byford whether there was “reasonable probability the error had substantial and injurious effect or influence in determining the jury’s verdict.” The Ninth Circuit found, “with reasonably probability that the jury instead convicted Babb on a valid felony murder theory.” The Ninth Circuit held that while the Nevada state court did err by not applying Byford the error was harmless because the Court “could be reasonably certain, based on the particular circumstances and instructions in this case, that the jury did convict Babb based on the valid felony murder theory and that the premeditation instruction did not have a substantial impact on the jury’s decision.” The Ninth Circuit also noted that the district court did not address other claims in Babb’s petition, so it remanded for the district court to address those issues. REVERSED and REMANDED.