Brown v. Terhune, C-98-2318-SI.
Citation | 158 F.Supp.2d 1050 |
Decision Date | 06 September 2001 |
Docket Number | No. C-98-2318-SI.,C-98-2318-SI. |
Parties | Paul Anthony BROWN, Petitioner, v. Cal TERHUNE, Director of the California Department of Corrections; Roy Castro, Warden, High Desert State Prison, Respondents. |
Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California |
E. Evans Young, Oakland, CA, for Petitioner.
Bruce Ortega, Bill Lockyer, CA Attorney General, CA Attorney General's Office, San Francisco, CA, for Respondents.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING REQUEST FOR EVIDENTIARY HEARING
Currently before this Court is petitioner Paul Anthony Brown's second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. The parties have fully briefed the merits of this petition, and Brown has requested an evidentiary hearing. After considering the arguments of the parties, this Court hereby DENIES petitioner's petition for writ of habeas corpus and DENIES petitioner's request for an evidentiary hearing.
On February 18, 1992, at approximately 9:15 p.m., a man armed with a Calico .9 millimeter semi-automatic or automatic weapon entered Bosn's Locker bar in North Oakland and sprayed the bar with 49 rounds of ammunition; seven individuals were hit by gunshots, three of whom were killed.
On September 24, 1992, Brown, along with co-defendant Keith Barber, was charged by information with three counts of murder, one special circumstance of multiple murder, and four count of attempted willful, premeditated murder, along with other allegations. Trial in Alameda County Superior Court began on July 27, 1993. On September 8, 1993, the jury informed the trial court that it was deadlocked as to both defendants and the court declared a mistrial. On November 10, 1993, the court granted the prosecution's motion to dismiss all charges against Barber.
On March 7, 1994, Brown's second trial began. On March 29, 1994, the jury returned guilty verdicts on three counts of murder in violation of California Penal Code § 187 and four counts of willful and deliberate attempted murder under California Penal Code §§ 187 and 664. The jury also found true a multiple murder special circumstance allegation (Cal.Penal Code § 190.2(A)(3)); that Brown personally used a firearm in the commission of all the offenses (Cal.Penal Code § 12022.5); and that Brown inflicted great bodily injury during the commission of two of the four attempted murders (Cal.Penal Code § 12022.7). After the verdict and before the penalty phase, Brown made a Marsden1 motion based on trial counsel Arelene West's failure to investigate and present testimony by a witness named King McCarthy. West had been retained by Brown during municipal court proceedings and then appointed once Brown could no longer pay for her services. After holding a hearing on the issue, the trial judge denied Brown's Marsden motion.
On April 11, 1994, the penalty phase began. On April 21, 1994 the jury returned a verdict of life without the possibility of parole. After the jury's verdict, Brown renewed his Marsden motion, and a hearing was held on May 20, 1994. The court again denied Brown's motion. On July 6, 1994, the trial court denied Brown's motion for a new trial and motion to reduce the attempted murder verdicts, and sentenced him to three life terms without the possibility of parole for the three first degree murder convictions, with four year enhancements for firearm use on all three counts. The court also imposed life terms for the four counts of attempted murder, with four year enhancements for firearm use on all four counts, and three year enhancements for each of the two findings of infliction of great bodily injury The court ordered all sentences to be served concurrently to the first sentence of life without the possibility of parole. Brown is currently incarcerated at High Desert State Prison in Susanville California.
Two individuals who were in the bar at the time of the shooting later served as witnesses for the prosecution at Brown's criminal trial. Winnie Tomlin, who was standing ten feet from the door through which the gunman entered, saw a tall man enter and, although her view of the gun was obstructed, heard the shooting begin. She testified that she looked into the face of the gunman for four or five seconds, and that the area where the gunman was standing was well lit by the disk jockey's equipment. Following the shooting, Tomlin was sent to the hospital to treat a superficial chest injury caused by the ricochet of a bullet, where she was administered a tranquilizer to calm her hysteria. Two hours after the shooting, she was interviewed at the hospital by Officer Joyner and she provided a physical description of the shooter: he was a dark-complexion black male, 18 to 25 years old, five feet eight inches tall, and 150 to 160 pounds, and wore a green hat with a bill, clear plastic goggle-type glasses, and a multi-colored jacket. Two days after the shooting, Tomlin identified Brown as the shooter out of a photographic lineup but would not sign the back of the photograph, telling the homicide detective that she was not sure of her identification. Tomlin later claimed to have been afraid to identify Brown rather than uncertain. Tomlin also told a therapist that she could identify the gunman but did not want to do so. After Tomlin was subpoenaed to testify at a preliminary hearing, she informed defense counsel that she was unable to identify the shooter. She was not called to testify at the preliminary hearing. However, subsequently, Tomlin identified Brown as the gunman, attributing her change of heart to her anger at the deaths of two friends in the Bosn's Locker shooting. At trial, Tomlin testified that the gunman was tall, thin, light-skinned and dark around the beard area; that he wore a cap and a nylon jacket with green in it; and that he wore clear goggles over his eyes that were similar to plastic safety glasses used for target practice.3 She identified Brown as the shooter. Tomlin was impeached by Tommietta Winston, a defense witness who had been with Tomlin at Bosn's Locker on the night of the shooting, who testified that Tomlin told her she could not be sure of her identification of the gunman.
Vernon Wallace, who had consumed three or four drinks before the shooting, hit the floor at the moment that the shooting began. At trial he testified that, after a few seconds, he crawled into a position where he could see the right profile of the gunman, whom he described as wearing a black pullover hat, like a ski mask rolled up, so that Wallace could only see his eyes. The gunman was approximately 16 to 18 feet away but the disk jockey's lights enabled him to view the shooter. After the shooting, Wallace described the gunman as light skinned and approximately six foot one or two. The next day, Wallace picked Brown's picture out of a photographic lineup. At trial, he identified Brown as the shooter. However, he was impeached with a number of prior inconsistent statements. When he called 911 immediately following the shooting, Wallace stated that he had not seen the gunman and could not identify him. His first description of the shooter to the police did not mention a ski mask, but stated that a black turtleneck pulled up just beneath the eyes hid most of the shooter's face. At the preliminary hearing, Wallace did not mention a ski mask and stated that he could not identify Brown as the shooter. At an evidentiary hearing, Wallace stated that the shooter had green eyes and identified Barber as the shooter, changing his mind only after the prosecutor showed him his signature on the back of Brown's photograph in the lineup. It was at that evidentiary hearing that Wallace first mentioned the ski mask.
Gwendolyn Williams also testified for the prosecution. She testified that on the night of the shooting she had been talking to her friends "Linda, Faye and Mary" on Faye Jamerson's porch, approximately one block from Bosn's Locker. Some time after 8:30 p.m., Brown drove up in a white Corvette and stopped to talk to Williams. Michael Baxter came by and told Brown, "There is some dude sitting in the bar." Brown walked in the direction of Bosn's Locker, and was gone for approximately ten minutes. When he was gone, Williams heard something that sounded like firecrackers. When Brown returned, he asked, "Did you hear that?" and told Williams that the sounds were gunshots. He then said, "I'm outta here," and drove away in his car. Williams stated that Brown did not have a gun with him that night.
Williams' testimony was impeached by Faye Jamerson and Mary Whitehead,4 who testified that they had not been with Williams on the night of the shooting Jamerson testified that she had been in Arkansas attending her brother-in-law's funeral at the time of the shooting. After she had completed her testimony, and the defense tried to introduce the funeral program into evidence, the court noticed that the funeral service actually took place in Texas; the prosecution then successfully moved to introduce this exhibit to impeach Jamerson's testimony and referenced this discrepancy in discrediting her testimony during closing arguments. Jamerson was not recalled to explain the discrepancy because she was ill; instead, in her closing, defense counsel suggested that Jamerson might have gone from the funeral in Texas to visit her family in Arkansas. Whitehead testified that on the evening of the shooting, which took place on her wedding anniversary, she was at the Greyhound bus station picking up her grandchildren who had been on a school outing, and that at the time of the shooting she had gone to Safeway. During cross-examination, she could not remember her grandson's name.
The prosecution also called Michael Baxter as a witness, who testified that h...
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