Nickerson v. Roe
| Decision Date | 17 March 2003 |
| Docket Number | No. C 98-04909 MHP.,C 98-04909 MHP. |
| Citation | 260 F.Supp.2d 875 |
| Court | U.S. District Court — Northern District of California |
| Parties | Glen William NICKERSON, Jr., Petitioner, v. Ernie ROE, Warden, Respondent. |
Edward M. Sousa, San Jose, CA, M. Gerald Schwartzbach, Law Offices of M Gerald Schwartzbach, Mill Valley, CA, for Petitioner.
Dane R. Gillette, Gregory A. Ott, CA State Attorney General's Office, San Francisco, CA, for Respondent.
Petitioner Glenn "Buddy" Nickerson is an inmate of the California state prison at Los Angeles, California, following his conviction on two counts of murder and one count of attempted murder. On December 28, 1998, Nickerson filed a petition for a writ of habeas corpus with this court challenging his conviction on grounds of ineffective assistance of counsel and police and prosecutorial misconduct which deprived him of due process. In support of his petition, Nickerson presented a variety of evidence not brought forth at his trial to show that he is factually innocent of the crimes charged. The court granted Nickerson's request for an evidentiary hearing on his petition. After having reviewed the record, the testimony and evidence submitted at the evidentiary hearing and the parties' arguments and briefs, and for the reasons set forth below, the court rules as follows.
Along with two codefendants, Murray Lodge and Dennis Hamilton, Nickerson was charged with the murders of John Evans and Mickey Lee King and the attempted murder of Michael Osorio.1 Nickerson and Hamilton were tried jointly in 1987. Because the State of California sought the death penalty against Lodge, he was tried in separate proceedings in 1992.
Because both the procedural issues raised by the petition and Nickerson's substantive claims require analysis of the evidence presented against Nickerson at trial, the court first summarizes the state's original case and Nickerson's defense.
At about 1:00 a.m. on September 15, 1984, Santa Clara County Sheriff deputies responded to shots fired at an address on Ronda Street in San Jose, California. RT 5666. When they arrived, they found John Evans lying unconscious in his front entryway with a severe head wound. RT 5672-73. Evans never regained consciousness. RT 5673.
The officers entered the house and found Michael Osorio in the hallway and the body of Mickie Lee King in the kitchen. RT 5677. Both men had wounds to the back of their heads and their hands were handcuffed behind their backs. RT 5677-79.
Twenty minutes later, Sergeant Joseph Kirby and his police dog, Ajax, arrived at the crime scene. RT 5797. Kirby noticed that Osorio had a head wound and was acting in a dazed manner. RT 5800, 5802. Osorio identified himself to Kirby. RT 5827. In response to Kirby's questions about who had hurt him, Osorio answered, RT 5827, Exh. 2 (Kirby notes).
After a search of the area, Kirby discovered a fingertip of a bloodstained glove underneath a car in Evans' driveway. RT 5803. Ajax picked up a human scent from the glove and began following a trail of blood down Ronda street in front of Evans' house, left on Union Street and into the Lakeside Apartment Complex off of Union. RT 5803-05. In the apartment complex driveway Ajax found a rubber glove and a cloth glove with the same scent he was following. RT 5805-06. There was a large amount of blood on the driveway and the wall of a nearby garage and a bloody handprint on an adjacent dumpster. RT 5807.
The trail led to the front of the complex on Heimgartner Street where the blood spatters ended. RT 5807-08. Ajax followed the scent trail left on Heimgartner and into a second driveway where he ultimately lost the scent at a grassy area. RT 5807-08.
A resident of the complex came out and told Kirby that he had seen two people running into a pond area and that one appeared to be holding a cloth to his abdomen. RT 5819-20, 5832-33.
Ajax picked up a second scent at the apartment complex's pond area. RT 5820. He followed it to the driveway of the complex off Union and to the rear yard fence of Evans' next door neighbor. RT 5820-23. A number of .357 caliber shell casings were found along the scent trail. RT 5821, 5823.
Evidence technicians photographed the crime scene and gathered fingerprints, bullet fragments and casings, a number of handguns, a briefcase with money and drugs and other physical evidence. RT 5885-6046.
None of the physical evidence gathered at the scene was linked with Nickerson. No gun used at the scene was ever found with Nickerson or otherwise associated with him. No fingerprints or clothing found at the scene were matched with Nickerson. The blood trail along Ronda Drive and Union Avenue did not match Nickerson's blood type, and prosecutors argued in Nickerson's trial that the blood trail was left by another unidentified perpetrator.
At trial, the prosecution argued that the killings were committed by Nickerson as part of a robbery and in revenge for the shooting of Nickerson's brother by Evans. Less than a month before Evans' death, Buddy's brother, Nicky Nickerson, went to Evans' house with a shotgun. RT 6598-99. Nicky Nickerson seized Evans' live-in girlfriend, entered the home holding her at gunpoint, and demanded that Evans come out and speak with him. RT 6598-99. A scuffle ensued in which Evans shot Nicky Nickerson in the chest and literally kicked him out of the house. RT 6600-01.
The prosecution presented testimony that Nickerson had made threats against Evans. Deputy Sheriff Tony Silva testified at trial that on the night that Nicky Nickerson was shot, Buddy Nickerson told Silva that "I will give you people thirty days to take care of it or else I will," although Silva failed to include this statement in his report. RT 7530. Barbara Payne, Evans' live-in girlfriend who was present when Nicky Nickerson was shot, testified that on August 25, 1984, she answered the phone at Evans' house. She spoke with someone she believed to be Buddy Nickerson who told her, "Tell John he has 31 days." RT 6608. Deputy Sheriff Edward Atlas testified that on August 31, 1984, Nickerson told him that Evans had set Nickerson's truck on fire while Nickerson was in a nearby restaurant. RT 6418. Nickerson told Atlas that "if Evans didn't leave him alone there would be war" and that Atlas should relay that message to the sheriffs' detectives. RT 6421-22. Judy Bryant testified that prior to the shootings, she heard Nickerson discuss his wish for revenge. RT 6473.
In response to the evidence of motive, Nickerson sought to establish that he and Evans had worked out their differences over Nicky Nickerson's shooting. A bartender, James Lumley, testified that he saw John Evans and Nickerson after the Nicky Nickerson shooting and that they talked and drank together for thirty or forty minutes. RT 7648-49. Barbara Payne also testified that a few days before his death, Evans told her that he and Nickerson had resolved the problems between them and that there would be no more trouble. RT 7509. Michael Osorio, one of the victims, testified that Evans told him that his problems with Nickerson had been resolved. RT 7208-09.
At Nickerson's trial, two eyewitnesses positively identified Nickerson and placed him at the scene of the murders. Michael Osorio, one of the victims, testified that Nickerson was one of the masked men who broke into the house. Brian Tripp, a resident of the nearby apartment complex, identified Nickerson as a man he saw fleeing the scene. Another witness, nearby resident Sharon Silberhorn, did not see anyone the night of the murders, but identified Nickerson as a man that she saw in a car near Evans' house the evening prior to the shootings.
Michael Osorio, the sole survivor of the shooting, gave the police the only eyewitness account of the events inside Evans' home. Osorio testified at trial that on the evening of September 14, 1984, he drove from Sacramento to San Jose to help Evans move his car painting equipment to Sacramento. RT 7134. A good friend of Evans, Osorio had taught Evans how to manufacture methamphetamine. RT 7122, 7127. When Osorio arrived at Evan's house, he met Evans' mother and sister, Phyllis, who were visiting. RT 7139-40. Mike Riley and Mickie Lee King, Evan's half-brother, were also there. RT 7139-40. At some point thereafter, Evans' mother and sister left. RT 7142. After receiving a phone call, Evans told Osorio that he had to go somewhere and would be right back. RT 7142-43. Evans did not say where he was going or who called. RT 7143. Evans asked Osorio to wait for him to return. RT 7142-43. Riley and Evans, both armed with guns, left in separate cars. RT 7143-44.
Osorio fell asleep on the couch and was later awakened by the sound of a door being kicked in. RT 7147. Someone rushed into the room and hit Osorio on the head with something that felt like wood. RT 7148. Osorio was pulled off the couch onto the floor and handcuffed with his arms behind his back. RT 7148-49. Osorio testified that he next heard the sound of dogs attacking someone or something and heard King yelling and telling someone not to shoot. RT 7149-50. He heard the sounds of someone being beaten and saw King being brought into the living room. RT7150.
Osorio testified that King was then shoved to the floor next to him, face down with his hands cuffed behind his back. RT 7151. King said, "Come over here, buddy, and loosen the fucking cuffs." RT 7151. Osorio saw a man wearing a ski mask over his head go over to King. RT 7151. Osorio heard King being hit in the head with what sounded like a gun. RT 7154. King was later moved to the kitchen. RT 7167.
Although all of the intruders wore ski masks at all times, Osorio felt that he could...
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