Morse v. Phillips
| Decision Date | 15 May 2023 |
| Docket Number | 1:23-cv-00196-JLT-SKO (HC) |
| Parties | GERALD WAYNE MORSE, Petitioner, v. BRIAN D. PHILLIPS, Respondent. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a life sentence for four counts of committing a lewd and lascivious act on a child under fourteen years of age. Petitioner claims a violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), and he claims the evidence was insufficient to support the guilty verdict. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.
On October 25, 2018, a Stanislaus County jury found Petitioner guilty of four counts of committing a lewd and lascivious act on a minor under the age of fourteen (Cal. Penal Code § 288(A)). (Doc. 9-2 at 189.[1]) On December 21, 2018, the court sentenced Petitioner to three concurrent terms of 25 years to life on counts one, two, and four, and a consecutive term of 15 years to life on count three. (Doc. 9-2 at 189.)
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On June 10, 2022, the appellate court affirmed the judgment. People v Morse, No. D079880, 2022 WL 2092822 (Cal.Ct.App. 2022). Petitioner filed a petition for review in the California Supreme Court. (Doc. 9-18.) On August 17, 2022, the California Supreme Court summarily denied the petition. (Doc. 9-19.)
On February 9, 2023, Petitioner filed the instant habeas petition for writ of habeas corpus in this Court. (Doc. 1.) Respondent filed an answer on April 7, 2023. (Doc. 10.) On May 8, 2023, Petitioner filed a traverse. (Doc. 11.)
The facts are derived from the appellate court's Statement of Facts in its unpublished decision[2]:
A. Report of Molestation
On March 11, 2016, Petitioner's wife, Consuelo, learned that Petitioner had molested her niece, Jane Doe 1. Consuelo asked her daughters from a prior relationship, Jane Doe 2 and Jane Doe 3, whether “that had also happened to them or not.” They responded that Petitioner had “touched” them. Consuelo called the police, and while waiting for the police to arrive, she confronted Petitioner with the allegations, and he said “he did do it” and “was remorseful.”
B. Police Interview and Arrest
Officer Cameron Cromwell, two other police officers, and two police department explorers[3] responded to Consuelo's call. Cromwell and the two other officers wore uniforms and were armed with handguns; the two explorers wore different uniforms and were not armed. When the officers and explorers arrived, Petitioner, Consuelo, her two daughters, Petitioner's mother, and her partner were in the home. Cromwell saw Petitioner at the top of the stairs talking to a lawyer on the telephone, and asked him to come downstairs to pat him down for safety. After the pat down, Cromwell asked Petitioner to wait with the other officers, explorers, Petitioner's mother, and her partner in a room, where they engaged in small talk while Cromwell interviewed Jane Doe 3. The officers stood near the front door of the home. Petitioner remained in the room for about 50 minutes.
After finishing the interview of Jane Doe 3, Cromwell went to the room where Petitioner was sitting with the others and asked whether there was a place inside or outside he would feel comfortable talking to Cromwell. Petitioner then led Cromwell to a small bedroom. Cromwell told Petitioner he could take a seat if he wanted, and he sat on the bed while Cromwell stood near the open doorway because there was no place else to sit. Cromwell told Petitioner, “You know why we're here, I'm assuming ‘cause it sounded like Consuelo talked to you before I got here.” Petitioner responded, “Yes.” Cromwell did not give Petitioner the Miranda warnings[4] and asked him, “[D]o you wanna talk to me about this?” Petitioner did not answer the question directly and proceeded to speak with Cromwell for about 23 minutes.
During the interview, Petitioner stated that about six or seven years ago when he returned from military deployment, he was taking medication for “sleep issues” and depression and would wake up in the bedroom of his stepdaughters, Jane Doe 2 and Jane Doe 3. Petitioner said his hand was once under the shirt of Jane Doe 3 “rubbing her belly.” When Cromwell asked Petitioner whether he had touched Jane Doe 3 anyplace else, he said, Petitioner said he “might have” touched Jane Doe 3 in other spots, but he did not remember ever touching her breasts or genitals. He did not remember ever touching Jane Doe 2 on her genitals or elsewhere. Petitioner said he was “pretty sure” his stepdaughters told police “the truth about what happened,” and he was “[v]ery sorry” for what happened. During the interview, Cromwell did not tell Petitioner either that he was free to leave and did not have to speak to Cromwell, or that he was not free to leave and had to speak to him, and Petitioner never indicated he did not want to speak to Cromwell. At the conclusion of the interview, Cromwell arrested Petitioner. Cromwell was not planning to arrest Petitioner after he interviewed Jane Doe 3, and decided to do so after he interviewed Petitioner.
C. Charges
Petitioner was charged with five counts of committing a lewd and lascivious act on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) Counts 1 and 2 were based on separate acts Petitioner committed against his niece, Jane Doe 1, between January 4, 2016, and March 7, 2016. Count 3 was based on an act Petitioner committed against his stepdaughter, Jane Doe 2, between November 1, 2009, and October 31, 2011. Count 4 was based on an act Petitioner committed against his stepdaughter, Jane Doe 3, between December 9, 2011, and December 8, 2012. Count 5 was based on an act Petitioner committed against his niece, Jane Doe 4, between January 10, 2015, and January 9, 2016. As to each count, the People alleged Petitioner was subject to punishment under the One Strike law because he had committed lewd and lascivious acts against multiple victims. (§ 667.61, subd. (e).)
D. Motion in Limine to Exclude Interview
Before trial, Petitioner filed a motion to exclude his statements to Cromwell as having been obtained in violation of his Miranda rights. In opposition, the People conceded Petitioner had been interrogated, but argued no Miranda warnings were required because he was not in custody when Cromwell questioned him. The trial court held a hearing at which Cromwell testified and the video and audio recording of his interview of Petitioner was played. After hearing arguments from counsel, the court ruled Petitioner was not in custody during the interview and the People could introduce it in evidence.
E. Trial
Jane Doe 1 testified that before she turned nine years old, Petitioner placed his hand on her genital area once at her house and another time at his house, but she could not remember whether it was over or under her clothes. Jane Doe 1's mother testified she once found Petitioner and Jane Doe 1 alone in Jane Doe 1's room, and when the mother entered, Jane Doe 1 jumped off her bed and Petitioner was kneeling or squatting about four inches in front of her. Jane Doe 1's mother further testified that after Petitioner got up and left the room, Jane Doe 1 looked scared and was crying, but said nothing had happened. Jane Doe 1 later told her mother Petitioner “had been touching her ... for a long time.”
Jane Doe 2 testified that when she was eight or nine years old, Petitioner more than once put his hand inside her pants and underwear, touched her genitals, and told her to stay quiet and not to tell her mother. Jane Doe 2 later told her sister, Jane Doe 3, about the incidents, and they told Consuelo, who called the police.
Jane Doe 3 testified that when she was 13 or 14 years old, she woke up scared from a nightmare, went to the bedroom of Petitioner and Consuelo, and got into their bed. Petitioner put his hand on her genital area over her clothes and pushed her underwear into her vagina with his finger. When the prosecutor reminded Jane Doe 3 she had testified at the preliminary examination that she was 13 years old when this incident happened, she agreed she was 13 and was in seventh or eighth grade. On cross-examination, Jane Doe 3 admitted she “could ... have been 14” when the incident happened and was “completely unsure one way or the other” whether she was 13 or 14. On redirect examination, Jane Doe 3 testified her brother was still in diapers when Petitioner touched her genital area over her clothes and pushed her underwear into her vagina with his finger. Consuelo testified Jane Doe 3 stopped going into Consuelo and Petitioner's bedroom to sleep when Jane Doe 3 was in middle school, and the brother stopped wearing diapers in April or May 2010, when Jane Doe 3 was 11 years old. On redirect examination, Jane Doe 3 also confirmed she was in seventh or eighth grade when the incident occurred and her testimony at the preliminary examination about her age at the time of the incident was “accurate.” On recrossexamination, Jane Doe 3 testified she could have been 13 or 14 at the time of the incident, but she was “more sure that it happened when [she] was 13 than 14 considering [she] was going into high school when [she]...
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