Brackett v. Wasden
| Docket Number | 1:17-cv-00281-DCN |
| Decision Date | 20 October 2021 |
| Parties | ROBERT BRACKETT, Petitioner, v. LAWRENCE WASDEN and JOSH TEWALT, Respondents. |
| Court | U.S. District Court — District of Idaho |
Petitioner Robert Brackett (“Petitioner”), a former prisoner who is now on parole, is proceeding on his Amended Petition for Writ of Habeas Corpus challenging his state court convictions. Dkt. 28. Respondents Lawrence Wasden and Josh Tewalt (collectively “Respondent”) filed a Response and Brief in Support of Dismissal, Petitioner filed a Reply, and Respondent filed a Sur-Reply. Dkts. 37 49, 53.
The Court takes judicial notice of the records from Petitioner's state court proceedings lodged by the parties. Dkts. 11, 36, 40, [1] and various individual records attached as exhibits to Petitioner's filings. See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, for the reasons explained below, the Court enters the following Order denying the Petition for Writ of Habeas Corpus.
Petitioner characterizes the background facts regarding his dealings with the minor victim, N.B. (or N.M.B.) and his difficulties with his proposed trial evidence, as follows:
In January of 2011 42 year old Robert Brackett was accused of having a relationship with 16-year old N.M.B. in which he met on several different occasions at multiple different nightclubs and/or bars, as N.M.B. had falsified her identification of that of an adult. The defendant denied the allegations. At trial the defendant tried to bring to light the many previous false allegations made by N.M.B. regarding her father Robert Bailey to local authorities. However, the court rules this information was not admissible. Further the defendant attempted to make the jury aware of the issue of N.M.B. falsifying her identification and frequenting adult establishments. Again this defense was denied and ruled irrelevant and not admissible.
State's Lodging B-3, p. 3 (verbatim).[2]
On a tip from a third party that 16-year-old N.B. had a 40-something boyfriend who had burned her arm with a cigarette lighter during an argument, two female Idaho Department of Health and Welfare officials and a female police detective called N.B. into a meeting at the high school to ask her about the relationship. State's Lodging A-7, pp. 197-98. N.B. told Detective Jocelyne Nunnally two or three times that nothing had happened between N.B. and Petitioner, that she did not want to talk about it, and that she “had already taken care of it.” Id., p. 197. However, after about five minutes, when N.B. was asked about a mark on her arm, N.B. told Detective Nunally something did happen. Id., pp. 199-200, 418-19, 519-20, 2461.
On January 13, 2011, N.B. revealed to other police investigators that she had been involved in a sexual relationship with Petitioner from about October 2010 to January 2011. State's Lodging A-1, p. 1006. Eric Barzee, the officer who prepared the affidavit in support of the criminal complaint, stated that N.B. also said Petitioner had taken sexual pictures of her with her black camera kept at Petitioner's house. State's Lodging A-3, p. 127.
During the last several weeks of Petitioner and N.B.'s relationship. Petitioner's adult daughter, Summer Brackett, moved in with Petitioner. Summer kept her personal items in a cardboard box in the living room. State's Lodging A-7, pp. 1148-1149.
On January 14, 2011, investigators obtained a search warrant for Petitioner's home and vehicle; the black camera N.B. had described was listed in the warrant. State's Lodging A-7, pp. 834-38. Detectives found a silver Nikon 4600 Coolpix camera on the living room entertainment stand. Id, pp. 658, 803, 820, 836-838. No. S.D. memory card was in the Nikon. Id., p. 1298. It had an internal memory; later, 74 non-exploitative pictures were retrieved from it. Id., pp. 1299-1300.
A Nokia T-Mobile phone was found in Petitioner's car. Id., p. 838-839. A Samsung cell phone identified as Petitioner's primary phone was found between the driver's seat and center console. Id., pp. 2176-77. N.B.'s parents allowed her Verizon LG phone to be examined and placed into evidence. Id., p. 875. Detectives found no nude photos on N.B's cell phone. Id., p. 1606.
Later, when examining Petitioner's cell phone, investigators found that Petitioner had sent a text message to Summer on January 14, telling her to erase the pictures on the camera that was in her personal box. Id., pp. 17-19, 2831-2832; see State's Lodging A-3, pp. 291-301. Petitioner stated at trial that he never asked his daughter, Summer, to erase images from a camera of an explicit nature, just images from a party. Id., p. 2717.
Investigators did not find the black camera they were looking for during their first search, conducted in Summer's presence. Id., pp. 1814-1815. After investigators left Petitioner's home, Summer sent them a message that she had found the camera in a box of her personal property. Investigators obtained a second search warrant and returned to retrieve the camera from Summer. State's Lodging A-3, pp. 127-129. The camera was a black Samsung SL600 camera, serial number BI1026516095D, in a gray soft case. State's Lodging A-7, p. 11 (referencing State's Exhibit 19), pp. 196, 846-848, 1847.
At trial, N.B. testified that “Bud” [later identified as Jack Omohundro] gave her the black Samsung camera. She left it at Petitioner's house and took it out when she and Petitioner would go somewhere, but she never took it home. State's Lodging A-7, pp. 252-254. She testified Petitioner took pictures of her with that camera (hereafter, the camera will be referred to as “Petitioner's camera”). Id., p. 253. She testified that Petitioner took pictures of her at Bud's house on Petitioner's camera, that she and Petitioner scrolled through them together, and that, later, Petitioner told her he had erased them. Id., pp. 299-300.
Petitioner was arrested and arraigned on January 14, 2011, after a recorded police-monitored confrontation call between N.B. and Petitioner. Id., pp. 539-543. Detectives obtained a third search warrant to search the Nikon and Samsung cameras and the blue SanDisk 8-gigabyte S.D. card in the Samsung camera. See State's Lodging A-9, p. 14.
Petitioner's black Samsung camera was taken to the FBI's Intermountain West Regional Computer Forensic Laboratory. Forensic examiner Don Lukasik recovered at least 269 deleted images from the S.D. card in Petitioner's camera. The images showed N.B.'s exposed vagina, N.B.'s hand touching a naked penis, and N.B.'s mouth touching a naked penis held in a man's hand. The detective prepared a forensic report of his analysis of the S.D. card, which included images recovered from the S.D. card. State's Lodging A-12, p. 10. Detective Barzee concluded that the images constituted “sexually exploitative material because N.B. was under the age of sixteen [sic].” Id., p. 128.
The 269 images were recovered from the S.D. card using the programs “Cellbrite, ” and “Zippy Reporting Tool” (ZRT). State's Lodging A-7, p. 1594; see State's Trial Exhibit 91 (Cellbrite report), referenced in State's Lodging A-7, p. 15. Detective Lukasik explained that when data is deleted from an electronic device, it is not “erased” until it is overwritten by new data. Once overwritten, the old data is replaced and is irretrievable. State's Lodging A-7, pp. 1273, 1279-81. He explained how to use an “Nv5 hash value” verification of the image at the beginning and the end of the examination to make sure that the nothing had changed during the examination. Id., pp. 1618-1619, 2030.
Detective Lukasik explained that he also used a program called “IrfanView” to extract EXIF (“exchangeable image file”) information from the digital photographs. Id., pp. 1351-1352. EXIF is information about a camera that is embedded into a photograph, such as the type of camera and the shutter speed. Id., pp. 1350-1351.
Detective Lukasik found the sexually exploitative images on the SanDisk memory card inside Petitioner's camera. Id., p. 803, 1312-1314, 2072, 2156; see Trial Exhibit 152. The examination of the S.D. card was made on February 8, 2011; the internal memory of the camera (which needed an external cable) was examined on February 22, 2011. State's Lodging A-7, pp. 1329, 1322. No. nude photos were found on Petitioner's camera's internal memory. Id., p. 717.
When Detective Lukasik finished his forensic examination, he put the S.D. card back into Petitioner's camera, and the camera back into his evidence locker. Id., p. 1335. He prepared a forensic report with photographs. At trial, Detective Lukasik testified that the exploitative photos had come from the S.D. card in Petitioner's camera, had been deleted by someone, had been restored by the Cellbrite program, and did correspond with the dates of the charged crimes. See State's Lodging A-7.
After N.B. disclosed that Petitioner had taken photographs of her at “Bud's house, ” see State's Lodging A-7, p. 346, detectives served a search warrant on Jack “Bud” Omohundro and retrieved Omohundro's personal camera, which was the same model as Petitioner's camera. The Omohundro camera had a different serial number (7385C90ZA17027J) than Petitioner's camera (BI1026516095D). Compare Dkt. 49-11, p. 2 with State's Lodging B-1, p. 299.
Analysis revealed that Omohundro had images of N.B. clothed and in red underwear. State's Lodging A-7, pp. 1836,...
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