Frye v. Warden, San Quentin State Prison, 2:99-cv-0628 LKK CKD

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date03 December 2013
Docket NumberNo. 2:99-cv-0628 LKK CKD,2:99-cv-0628 LKK CKD
PartiesJERRY GRANT FRYE, Petitioner, v. WARDEN, San Quentin State Prison, Respondent.

WARDEN, San Quentin State Prison, Respondent.

No. 2:99-cv-0628 LKK CKD


Dated: December 3, 2013




Petitioner is a state prisoner under sentence of death. He seeks relief pursuant to 28 U.S.C. § 2254. In 2007, this court granted petitioner's motion for an evidentiary hearing on all or parts of claims 2, 3, 4, 5, 7, 25, 28, 29, 42 and 44. In 2008, the court heard testimony on the allegations regarding Juror Fairfield in claim 42 and on claim 44.1 Between 2008 and 2010, the parties conducted testimony depositions and prepared for additional portions of the evidentiary hearing authorized by the court. In 2011, however, the United States Supreme Court rendered decisions changing the federal courts' analysis of habeas corpus petitions under section 2254. This court then stayed the evidentiary hearing proceedings and ordered the parties to brief the

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application of 28 U.S.C. § 2254(d) to each claim for which petitioner was granted an evidentiary hearing, and for claim 37, for which a motion for an evidentiary hearing is pending.

After careful consideration of the parties' briefs and of the state court record, this court concludes that petitioner has satisfied the requirements of section 2254(d) for claims 28, 29, and 44, and for the allegations regarding Juror Fairfield in claim 42. This court further concludes that petitioner has failed to meet those requirements for claims 2, 3, 25 and 37, and for the portions of claims 4, 5, and 7 for which the court had previously granted an evidentiary hearing. Finally, this court considers the evidence adduced in this federal proceeding on the allegations regarding Juror Fairfield in claim 42 and on claim 44, and herein recommends denial of those claims on the merits.


I. Guilt Phase

A. Prosecution's Case

The prosecution's chief witness, Jennifer Warsing, testified under a grant of immunity. Warsing first met petitioner in a Sacramento bar in April 1984 while she was separated from her husband of many years. A romantic relationship between Warsing and petitioner quickly developed, and, in early May 1984, the couple moved in together in an apartment outside of Sacramento. On several occasions during the time they lived together, petitioner assaulted Warsing. Petitioner and Warsing returned to Sacramento in December 1984 or January 1985, and resided together at the River City Motel. Petitioner worked at a construction job next door to the motel.

Rick Evans worked with petitioner at the construction site and socialized with him outside of work. Evans testified he and petitioner discussed the prospect of quitting their jobs and growing marijuana for profit instead. Evans had access to a gold mining claim in Amador County that members of his family had worked for many years. In April 1985, petitioner and Evans quit

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their jobs to pursue the marijuana venture. With approximately $500 between them, they purchased camping equipment and other supplies. The next day, a group comprised of petitioner, Warsing, Evans and his girlfriend, and Warsing's adult son drove to the mining claim property in Amador County. In addition to the camping gear and supplies they had purchased, petitioner and Evans brought along marijuana seeds, a 12-gauge shotgun, a .22-caliber semiautomatic rifle, and ammunition.

A quarter-mile down the hill from the group's campsite was a cabin occupied by an older couple, Robert and Lucille (Jane) Brandt, who worked a gold mining claim with their son, Bobby. Evans testified that before setting up camp and sowing the marijuana seeds, he sought and obtained the Brandts' permission for the group to camp on the property. The campsite had no running water or electricity, and meals were prepared over an open campfire. Although petitioner and Warsing had a car when they moved to the campsite, they sold it to Warsing's son who left the group after a couple of days. Evans and his girlfriend returned to Sacramento a week or two later, leaving only petitioner and Warsing at the campsite. Before Evans departed, it was decided that Evans would return to the property once or twice a week with food and supplies, and petitioner would tend the marijuana plants.

About a week after moving to the campsite, Warsing met the Brandts and became friendly with them. Warsing would occasionally accompany Jane Brandt in the Brandts' 1982 Lincoln Towncar to run errands in town. On these excursions, Warsing became aware that Mrs. Brandt carried an unusually large amount of cash with her to pay for goods and services. Rick Evans testified petitioner and Warsing mentioned the Brandts' money during one of his weekly visits to the campsite. Petitioner also showed Evans a small glass container filled with about a quarter-inch of gold he had scraped from the bucket of the front-end loader used by the Brandts in their mining operation.

On the morning of May 14, 1985, petitioner and Warsing walked from their campsite down the hill to the Brandts' cabin. Warsing had agreed to accompany Mrs. Brandt to the dentist's office in case she did not feel well following her dental procedure. Sometime during the late morning of May 14, an acquaintance of the Brandts, Ron Wilson, drove to the cabin. Wilson

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occasionally worked the Brandts' mining claim with them, receiving a percentage of the gold that was extracted. Seeing the Lincoln gone, Wilson drove by the cabin without stopping, and proceeded up another road. After investigating a potential mining area, Wilson hiked to the upper part of the claim, in the vicinity of petitioner's campsite. As Wilson headed back down towards the cabin to see if anyone had returned, he met petitioner walking up the road. Petitioner showed Wilson the marijuana-growing operation. A short time later, Wilson drove with petitioner into town where Wilson bought them lunch and a couple of beers. After lunch, Wilson and petitioner made several more stops. Wilson bought a carton of cigarettes for petitioner, and two 12-packs of beer. Wilson also retrieved several flats of marijuana seedlings from his girlfriend's residence for petitioner to tend for him, and picked up some watering equipment from a friend. During this time, petitioner and Wilson each consumed several more beers.

Petitioner and Wilson arrived back at the mining claim about 3:00 in the afternoon, and went up the hill to the campsite. Mrs. Brandt and Warsing arrived back at the cabin some time later. When Warsing got out of the car, Mrs. Brandt asked her to come down for coffee later in the evening. Warsing said they probably would, and set off for the campsite up the hill. When Warsing arrived at the campsite, petitioner and Wilson were talking and drinking beer. Around dusk, Wilson left the campsite and drove home.

Warsing testified that shortly after Wilson's departure, petitioner said he saw the Devil moving around the campsite. He also told her he thought he was being set up, and that he would "just take what he could." Petitioner then stood by the fire where Warsing was heating water for coffee, and asked her if she had ever seen people dead before. According to Warsing's testimony, petitioner was going to go down and kill the Brandts, and told her if she did not go with him, he would have to kill her too. Hoping to run away, Warsing told petitioner she needed to use the campsite's makeshift bathroom. Petitioner accompanied her, shotgun in hand. When Warsing was finished, petitioner took her by the arm and walked down the hill toward the cabin, still clutching the shotgun in the other hand.

When petitioner and Warsing arrived at the Brandts' cabin, Mrs. Brandt greeted them, asking them to come inside. Petitioner placed the shotgun against the kitchen doorway, and sat

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down in a chair nearby. Warsing sat at the table where Mrs. Brandt was working on an afghan and began helping her. Petitioner complained to Mr. Brandt that he had drunk too much and his head was hurting. Mr. Brandt started laughing. When Mrs. Brandt got up and offered coffee, petitioner said he would like a cup. Hearing petitioner joking with Mr. Brandt and asking for coffee, Warsing believed things had returned to normal, and she began to relax. Moments later, however, she heard a noise, and looked up to see petitioner pointing the shotgun at Mr. Brandt who was now standing up in front of his recliner. Petitioner shot Mr. Brandt, who then fell back in the chair. Mrs. Brandt turned and moved towards petitioner, with Warsing behind her. She yelled at petitioner to stop, and lunged at him. Petitioner shot Mrs. Brandt in the chin and face, and she fell onto the sofa. Petitioner turned and shot Mr. Brandt a second time. Warsing testified she heard gurgly breathing from Mr. Brandt. Petitioner told Warsing, "I am going to have to put him out of it." Warsing heard three blows, and then no more breathing. According to Warsing's testimony, she started moving towards the door to leave, but petitioner yelled at her to get the money out of Mrs. Brandt's purse, which she did. Petitioner then directed Warsing to go in the bedroom and look for a suitcase containing Mrs. Brandt's gambling change. Petitioner returned to where Mr. Brandt's body lay, and went through his pockets. Petitioner took vials of gold from the...

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