Hughes v. Borg

• Decision Date: 11 April 1989
• Docket Number: No. 88-15517,88-15517
• Citation: 898 F.2d 695
• Parties: George Lee HUGHES, Petitioner-Appellant, v. R.G. BORG, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 695

898 F.2d 695

George Lee HUGHES, Petitioner-Appellant, v. R.G. BORG, Respondent-Appellee.

No. 88-15517.

United States Court of Appeals Ninth Circuit.

Submitted April 11, 1989. ^*

Decided March 5, 1990.

George L. Hughes, Pro se, Represa, Cal., for petitioner-appellant.

Sharon G. Birenbaum, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, WALLACE and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

George Hughes, a California state prisoner, appeals pro se the district court's denial of his petition for a writ of habeas corpus, 699 F.Supp. 779. Hughes alleges three grounds for habeas relief: (1) prejudicial error at trial due to jury and prosecutorial misconduct, because a search warrant affidavit and a police report, which had not been admitted into evidence, were sent into the jury room during deliberations; (2) denial of his sixth amendment right to counsel due to ineffective assistance by Hughes' appellate counsel; and (3) denial of due process as a result of the trial court's failure to instruct the jury that it must find intent to kill before convicting the defendant of special circumstances felony murder. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982), and we affirm.

BACKGROUND

In 1982, George Hughes was tried in California Superior Court for first degree murder with special circumstances, kidnapping, robbery, and illegal possession of a firearm. The facts presented at trial were as follows: At 3:00 a.m. on November 8, 1980, after closing and cleaning up Church's Fried Chicken restaurant in El Cerrito, California, Mary Washington, Sammy Lewis, Duane Mackie, and another coworker left the restaurant through the front door. Washington, the assistant manager, locked the front door. Washington was wearing brown slacks and a brown jacket pinned with a Church's Fried Chicken badge and her name tag. Sammy Lewis testified that as Washington walked to her car, a burgundy Oldsmobile, she was approached by a man she seemed to know. The man asked her for help. Washington told him she could not help him and got into her car. The man talked to Washington briefly through her car window, and then Lewis saw Washington slide over to the passenger side of her car. The man got into the driver's seat and drove away.

Washington failed to open the restaurant the next morning. At 10:00 a.m., an employee called the area manager to report that the restaurant had not been opened. The area manager and the police arrived at the restaurant and Lewis gave a description of the man he had seen leave with Washington at 3:00 a.m. Lewis indicated that the man looked like a former employee of Church's Fried Chicken. The area manager checked the store and found $2,506 missing.

The following evening, November 9, 1980, the restaurant's management called a meeting of the employees. Lewis testified at trial that when he drove up to the restaurant for the meeting, Hughes ran up to Lewis' car and said "Say man, did you see me that night? Was it me that you saw? Couldn't have been me because I have an alibi. I was in Los Angeles that night." At the meeting, Detective Michael Capuono asked Lewis if Hughes, who was present at the meeting, was the man Lewis had seen with Washington. Lewis indicated that Hughes was not the man he saw. ¹

On November 17, 1980, an investigator discovered a body at the bottom of a highway embankment. The deceased wore brown slacks and a brown jacket with a name tag which read "Washington, Assistant Manager." The body was taken to the coroner's office where Dr. Paul Hurman performed an autopsy. Dr. Hurman testified that the cause of death was a bullet wound in the head. The deceased was identified as Mary Washington through comparison with dental charts.

Tommi Banducchi testified that, during the month of November 1980, she looked out the window of her home at 1920 Junction Street in El Cerrito and saw a man On November 29, 1980, Officer Gary Priche found the burgundy car, which matched the description of Washington's car, on the 1900 block of Junction Street. The car looked dirty as if it had been left for a few days. Priche noticed blood on the outside of the car which had dripped out through the kick plate. Priche found blood on the passenger seat and on the kick plate inside the car. The blood type matched that of Washington. Priche also discovered a spent bullet on the floorboard.

park a burgundy car. The man sat in the car while he wiped a few things off inside the car. He then went to the trunk, took something out, and walked away. Ms. Banducchi identified Hughes as the man she saw park the car.

On February 10, 1981, a man robbed J.J. Mills Pizza in El Cerrito. The two employees present during the robbery identified Hughes as the man who robbed them through a photograph array. Hughes' fingerprints were found on a menu which the robber touched prior to the robbery. At trial, both employees identified Hughes as the robber.

On February 11, 1981, during the investigation of the J.J. Mills Pizza robbery, police officers served a search warrant on Hughes' residence. During the search, the officers discovered evidence which they believed tied Hughes to Washington's murder. That same day, the officers served a second warrant on Hughes' residence to search for evidence of the Washington murder.

During that search, the officers seized the following items: a purse that was stolen from an employee during the J.J. Mills Pizza robbery; a loaded handgun registered to Washington; a mask; a totebag; ² nineteen .32 caliber Gaco cartridges; a 1980 diary which contained notations about robberies Hughes had committed; and a 1980 Church's Fried Chicken sales log containing a management school certificate reported stolen from the manager's car on November 1, 1980. Both Hughes and his girlfriend were arrested as suspects for the J.J. Mills Pizza robbery and Washington's murder.

The next day, on the basis of two entries in Hughes' diary, ³ the officers executed a search warrant of Hughes' father's residence. The officers found and seized a .32 caliber automatic pistol. A ballistics expert testified that the bullet found in Washington's car was shot from this pistol.

A police officer employed at the jail where both Hughes and his girlfriend were housed testified that, on the same day Hughes' father's gun was seized, Hughes' girlfriend yelled over to Hughes' cell that a search warrant had been served on his father's residence. Hughes immediately called for the jailer and requested to make a phone call. During his call, Hughes asked what the police had taken. After a pause, he responded "Well, they got the right gun." He then stated that he probably would be going away for twenty years or longer.

Hughes' brother-in-law, Charles Cox, testified that Hughes told Cox that he had "pulled a job" at Church's Fried Chicken. Hughes told Cox that he went to the restaurant, approached a woman in a car, showed her his gun, and instructed her to move over to the passenger side of the car. He then got into the car and drove down the MacArthur Freeway. The woman pleaded with him saying, "You can have anything you want, just don't kill me." Ignoring her pleas, Hughes shot her in the head, dumped her body, and parked the car near a BART station. The 1900 block of Junction Street is located near a BART station.

On October 3, 1980, two Fox Photos and one Foto-Mat were robbed in the San Pablo/El Cerrito area. All three employees On January 17, 1981, a man robbed Round Table Pizza in Richmond, California. At trial, the employees identified the stocking mask and gun found in Hughes' apartment as instruments used in the robbery. One employee thought Hughes, a former Round Table employee, was the robber.

involved gave police descriptions of the robber's car and license plate number which matched Hughes' girlfriend's car. At trial, two of the three employees identified Hughes as the robber. On October 30, 1980, a similar pair of robberies of a Foto-Mat and a Fox Photo occurred. During the Foto-Mat robbery, the robber tore the phone off the wall. Hughes' fingerprints were found on the phone. The employee present during that robbery indicated at trial that Hughes could have been the robber.

In May of 1982, Hughes was convicted in the California Superior Court of first degree murder with three special circumstances, murder committed for financial gain, murder committed during the course of robbery, and murder committed during the course of kidnapping, in violation of California Penal Code Secs. 187 and 190.2. Hughes was also convicted of the felonies underlying the murder--robbery, kidnapping to commit robbery, and kidnapping. In addition, Hughes conceded guilt for seven counts of robbery, one count of attempted robbery, and six counts of illegal possession of a firearm. Hughes was sentenced to nine years on these charges and life imprisonment without possibility of parole on the murder conviction.

On June 15, 1982, Hughes filed a motion for a new trial, alleging that a police report which had not been admitted into evidence was present in the jury room during deliberations. In fact, two extraneous documents were present in the jury room. Prior to trial, the prosecutor had premarked all of his exhibits, including four search warrants with affidavits. The search warrants were admitted into evidence. However, the clerk inadvertently received into evidence the affidavits and the police report accompanying the search warrants. At the jury's request, the clerk sent the exhibits, which erroneously contained the extraneous documents, into the jury room.

The California Superior Court denied Hughes' motion for new trial. The trial judge determined that the information in the police report was duplicative of evidence produced at trial and, therefore, the presence of the police report in the jury room did not prejudice the...