Ewell v. Scribner
| Decision Date | 03 February 2011 |
| Docket Number | No. 1:06-cv-00186 AWI MJS (HC),1:06-cv-00186 AWI MJS (HC) |
| Court | U.S. District Court — Eastern District of California |
| Parties | DANA JAMES EWELL, Petitioner, v. A.K. SCRIBNER, Warden, Respondent. |
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner and Joel Radovcich (hereinafter "Radovcich") were convicted of first degree murder in the Fresno County Superior Court. See Pet., 2, ECF No. 1. The jury found Petitioner guilty of three counts of first-degree murder and found three special circumstances to be true: multiple murder, murder for financial gain, and murder while lying in wait. Id. Petitioner was sentenced to three consecutive life sentences, without the possibility of parole, plus two additional years for arming enhancements. Id.
Petitioner appealed the conviction to the California Court of Appeal, Fifth Appellate District, on September 22, 2000. See Lodged Doc. 1. The appellate court affirmed the conviction in areasoned opinion filed on May 4, 2004. See People v. Ewell, F031391, 2004 WL 94479 (Cal.Ct.App. 2004); see also Lodged Doc. 6.
Petitioner filed a petition for review in the California Supreme Court on June 15, 2004. See Lodged Doc. 7. The court denied the petition without comment on August 25, 2004. Id.
Petitioner filed a petition for a writ of certiorari with the United States Supreme Court on December 22, 2004. See Lodged Doc. 8. The Supreme Court denied the petition on February 22, 2005. See Ewell v. California, 543 U.S. 1169 (2005).
Petitioner filed the instant petition for writ of habeas corpus with this Court on February 17, 2006, see Pet., and a memorandum of points and authorities in support thereof on June 1, 2006. See Mem. P. & A., ECF No. 9. Respondent filed an answer to the petition on October 29, 2007.1 See Answer, ECF No. 25. Petitioner subsequently filed a traverse on January 22, 2008. See Traverse, ECF No. 32.
Dale and Glee Ewell and their children, Dana3 and Tiffany, spent Easter weekend of 1992 at the family beach house at Pajaro Dunes, near Watsonville. They arrived at varying times on Thursday and Friday, as Tiffany and Glee drove over from Fresno; Dale, who, with Glee, owned an aircraft sales business at the Fresno Air Terminal called Western Piper, flew over from Fresno; and Ewell drove down from Santa Clara University, where he attended school.
On Easter Sunday, April 19, Ewell and Dale played tennis together in the morning, then the family had lunch and took a walk on the beach. Ewell left around 2:15 or 2:30 p.m. and drove to the Morgan Hill home of girlfriend Monica Zent. Heremained there with Monica and her family until sometime that evening, when he and Monica returned to school.
Ewell assumed his mother and sister left the beach house shortly after he did. Dale returned to Fresno by plane, arriving at the Fresno Air Terminal just before 3:30 p.m. He telephoned Marlene Reid, Western Piper's business manager, from the office sometime around 4:00 p.m. However, when Ewell telephoned his family at home that evening, no one answered. He was unable to reach anyone when he telephoned again on Monday, and Dale neither appeared at his office that day nor maintained his usual contact with Reid.
On Monday, Ewell expressed concern to John Zent (Monica's father and an FBI agent) and Marlene Reid about his inability to contact his family. However, despite Reid's advice that he contact his parents' neighbor and ask that person to check the house, he did not do so until Tuesday morning, when Reid insisted after Dale again failed to arrive at work.
Shortly after 9:00 a.m. on Tuesday, April 21, the bodies of Dale, Glee, and Tiffany were discovered in their residence on East Park Circle Drive, in the Sunnyside area of Fresno. Tiffany was lying face down on the kitchen floor. She had been shot once in the back of the head with the bullet exiting her forehead. Dale was lying face down in the hallway. He had been shot once in the back of the neck with the bullet exiting below his right eye. Glee was lying partially on her back and partially on her left side in the office. She had been shot four times, including once just below the eye with the bullet exiting the back of her head. Rigor mortis and lividity had set in as to all three victims, each of whom appeared to have been shot at the location at which he or she fell. Although the pathologist could not determine the order in which Glee's wounds were inflicted or in which [sic] the victims were killed, authorities theorized that the women had returned home first and entered the house together or one right after the other. Tiffany was shot first, having been taken by surprise when she passed the killer's location; the killer then emerged and shot and wounded Glee, who retreated into the office, where she was killed. Dale was killed last, and later than the women. Times of death were estimated at between approximately 5:00 and 6:00 p.m.
Law enforcement personnel suspected that the murder weapon was a nine-millimeter firearm. As such weapons are usually automatics, shell casings should have been ejected and found at the scene. None were. However, a box of nine-millimeter Winchester cartridges, containing 18 rounds of ammunition, was found in the master bedroom, and an unexpended round was located on the master bedroom floor. Analysis of the lead bullets and tool marks showed that the bullets recovered from the crime scene almost certainly came from this box of cartridges. (Footnote omitted.) Subsequent investigation revealed that Dale had purchased the box of ammunition, together with a nine-millimeter Browning pistol, in 1971. The pistol, which should have been in the residence, was missing.
While there did not appear to have been any struggle, the house had been ransacked, as if burglarized. However, law enforcement authorities concluded the burglary had been staged and the victims killed for a reason. There were no signs of forced entry, and all doors and windows were secured, with the exception that the front and back doors were unlocked when sheriff's personnel arrived. The skylights did not appear to have been disturbed. The alarm, which was normally armed, was not on and had not been triggered. (Footnote omitted.)
The Ewell estate was worth between $7 and $8 million. Ewell was aware of this, as he had typed a statement of net worth for Dale on or about April 1, 1992. Had Tiffany lived, she and Ewell each would have inherited half of the estate. With her dead, Ewell, who was 21 years old at the time of the homicides, was the sole beneficiary.
Under Dale's and Glee's wills, the estate was distributed to a trust. Until Ewell turned 25, the amount paid out to him was discretionary with the trustee, who was obligated to pay enough, from income or principal or both, to support and educate Ewell. Between ages 25 and 30, all income would be paid to Ewell, although any payment from the principal would remain discretionary with the trustee. At age 30, one-half of the principal would be distributed to Ewell, with the remaining half distributed to him at age 35. When his uncle obtained a copy of the will shortly after the bodies were found and informed Ewell that it contained no burial instructions, Ewell said something like "'Well, okay, but what about the money?'" When informed of the basic provisions, including the age stipulations, Ewell became visibly shaken and angry. He pounded on a table as he lurched or lunged out of his chair, and asked why his father had done that.
Immediately after the homicides, Ewell resided with one of his uncles. He moved out of the house within a couple of weeks and told Michael Dowling, the estate's executor, that he was staying with a friend in the neighborhood. He specifically said he was not living in the Park Circle Drive house. Within a month after the funeral, however, Ewell gave friend Michael Poindexter a tour of the Park Circle Drive residence. Ewell was living in the house at the time, despite the fact only some cleanup work had been done and bullet holes, blood, and possible brain splatterings were still visible. Referring to the investigators assigned to the case, Ewell told Poindexter, " " Ewell also advised Poindexter that he (Poindexter) did not have to talk to the detectives.
As part of their investigation, Sheriff's Detective John Souza and his team set out to obtain background information on Ewell, as well as to look at other possible suspects. In the course of this investigation, Radovcich's name was mentioned as being a friend of Ewell's from college. Souza and Detective Burk contacted Radovcich on May 7, 1992, while they were in the Los Angeles area. When Souza identified himself and advised that he was working a triple homicide case in which the parents of a Santa Clara student were victims, Radovcich acknowledged that he knew Ewell and had heard about the murders. When Radovcich asked why Souza wanted to talk to him, Souza explained that he understood Radovcich to be a good friend of Ewell's, and that he was conducting a background investigation on Ewell. Radovcich asked, "'Are you going to arrest me?'" When Souza said no, Radovcich agreed to the interview.
The meeting took place the next day. Almost immediately, Radovcich brought up his prior question about being arrested. He explained that he had thought they were cops from Santa Clara and were harassing him. Radovcich related that he first met Ewell in fall of 1990, when they lived in the same dormitory at Santa Clara University. Radovcich said they were friends and would "hang out" together, but that their friendship was limited to...
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