Payne v. Arnold

• Decision Date: 15 December 2016
• Docket Number: No. 2:14-cv-2394-JAM-EFB P,2:14-cv-2394-JAM-EFB P
• Parties: BRIAN DAVID PAYNE, Petitioner, v. ERIC ARNOLD, Respondent.
• Court: U.S. District Court — Eastern District of California

BRIAN DAVID PAYNE, Petitioner, v. ERIC ARNOLD, Respondent.

No. 2:14-cv-2394-JAM-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 15, 2016

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on August 14, 2009, in the San Joaquin County Superior Court on charges of first degree murder, shooting at an occupied motor vehicle, making criminal threats, misdemeanor vandalism, and inflicting corporal injury on a spouse. He seeks federal habeas relief on the following grounds: (1) his trial counsel rendered ineffective assistance; (2) jury instruction error violated his right to due process; and (3) the trial court violated his Sixth Amendment rights when it denied his motions for substitute counsel. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

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I. Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury convicted defendant Brian David Payne of first degree murder, shooting at an occupied motor vehicle, criminal threats, misdemeanor vandalism, and inflicting corporal injury on a spouse. The trial court sentenced defendant to 25 years to life in prison, with an additional term of 25 years to life for a firearms-use enhancement, and various concurrent terms.

Among other things, issues arose during trial regarding defendant's competence to assist counsel in a rational manner and his requests to relieve his appointed trial counsel.

Defendant now contends:

1. The trial court erroneously instructed the jury on the requisite mental state for heat of passion, and the prosecutor committed misconduct by misstating the law on heat of passion. If either of those arguments are deemed forfeited, defendant claims defense counsel rendered ineffective assistance by failing to object at trial to those errors.

2. The trial court abused its discretion by not providing a clarifying instruction on provocation sufficient to reduce first degree murder to second degree murder, after the jury foreperson indicated that a holdout juror did not understand the concept.

3. Defense counsel was ineffective in failing to prevent disclosure at the competency trial of privileged information, the trial court abused its discretion in considering inadmissible hearsay, and the cumulative effect of the errors requires reversal of the competency determination and the sanity verdict.

4. The trial court prejudicially erred in denying his motions to discharge his trial counsel.

We conclude:

1. The jury was properly instructed on heat of passion, and defendant forfeited his claim of prosecutorial misconduct. Defendant's ineffective assistance claim fails because he has not established prejudice.

2. Defendant forfeited his claim that the trial court should have provided a clarifying instruction on provocation, because he acquiesced to the trial court's response to the jury inquiry.

3. The record does not support defendant's claim of attorney-client privilege, and defendant's ultimate claim of ineffective assistance fails because he has not established prejudice.

4. The trial court acted within its discretion in denying defendant's motions to substitute his appointed trial counsel.

We will affirm the judgment.

BACKGROUND

Defendant was married to the victim, Jamie Baker, and the couple had three children: Brian, Jr., Markus, and Aiden. But the relationship between defendant and his wife began to deteriorate beginning in August 2006. Defendant suspected Jamie was having an affair. He heard a message from a man on Jamie's cell phone, and defendant claimed Jamie showed him responses she received from other men on a dating website she had visited, causing defendant to become angry and jealous. Defendant accused Jamie of cheating on him and kicked her in the back when she refused to have sex with him on one occasion in December 2006.

Defendant told his coworker he would kill Jamie if she ever left him. He said he put a gun on Jamie to scare her. Jamie's friend, Hillary Hays, overheard defendant threaten to kill Jamie during a cell phone conversation in November 2006. Defendant said he did not want Jamie to be with anyone else.

Defendant read subsequent texts on Jamie's cell phone and learned that three men had contacted her. One text sent from Jamie's cell phone read, "I can't wait to rub on your rock-hard chest again." The texts on Jamie's cell phone confirmed defendant's suspicion that Jamie was unfaithful. Defendant felt his marriage was a joke and Jamie was using him, but he still wanted to work things out. In a fit of rage, defendant slashed Jamie's car tires and choked her on January 10, 2007. Jamie summoned the police, moved out of the apartment she shared with defendant, and went to live with Hays.

Jamie reported to police that defendant constantly harassed her after she moved in with Hays. He called Hays's home about 20 times inquiring about Jamie and showed up at Hays's apartment. He said he would kill Jamie before he allowed her to be with someone else. On one occasion, he took the ignition wire out of Jamie's car to prevent her from leaving.

Jamie obtained an emergency protective order against defendant. She planned to take the children to Texas, but defendant convinced her to stop along the freeway so that he could say goodbye to the children. However, defendant took Aiden out of Jamie's car and left, saying Jamie would never see Aiden again and that he would kill Jamie. Jamie called the authorities.

Defendant left Aiden with Jamie's mother the next day, and Jamie took the children to Texas. Jamie would not allow the children to tell defendant where they were, but she permitted defendant to talkto Brian, Jr. and Markus on the telephone. Jamie told Hays she wanted to get as far away from defendant as she could get.

After Jamie left with the children, defendant smoked cocaine constantly. He stopped going to work. He smoked between 7 to 10.5 grams of cocaine each day for seven days. The cocaine made defendant depressed. He was not sleeping and eating. He began to hear Markus's voice calling him. He believed Jamie or her boyfriend might kill him or set him up, so he kept his handgun by his bed for protection. At some point in time, defendant wrote a note which said, "The enemy is Jamie Baker, bitch, mother fucker."

Defendant killed Jamie on January 28, 2007. That morning, he met Jamie at a Panda Express restaurant near his apartment. Jamie asked to meet to discuss things with defendant. She wanted to meet at a public place because she was afraid of defendant. Jamie left the children with defendant's sister in Texas.

Defendant stopped smoking cocaine about two hours before he had to meet Jamie. He did not trust himself that day.

Defendant wanted to save his marriage and to go to counseling. Jamie was adamant, however, that their relationship was over. She told defendant the children were at his sister's house in Dallas. Defendant told Jamie the children belonged with him, and Jamie responded that she would think about it. Defendant felt Jamie held all the cards. He and Jamie left the restaurant at 12:45 p.m.

Defendant returned to his apartment and smoked cocaine. He felt low. He thought "it's pretty much over. Your wife's gone. You don't know where your kids are. You got $300 left in the bank. Go draw 200 out, get on the freeway, turn your music on, and go get another quarter [of cocaine]."

After using an ATM machine, defendant departed from a parking lot in his car. His gun was on the front seat of the car, and he knew the gun was loaded. Defendant saw Jamie's car make a turn at an intersection. She did not see him. Defendant pulled his car next to Jamie's car and got out of his car with his gun. He held his gun low. He wanted answers from Jamie about his children, and he wanted to scare Jamie.

Defendant repeatedly ordered Jamie to unlock her car doors. She said no and began to move her car backwards. Defendant hit his gun on the car window, and the gun discharged. After that, he pointed the gun at Jamie and fired 15 shots. Defendant was a good shot, and he knew the gun was empty when he finished shooting. Twelve out of 15 bullets hit Jamie, killing her.

Defendant left in his car and went straight to his drug dealer's house. He did not call 911. Instead, he called Jamie's mother and others, confessing what he had done and claiming he was going to kill himself.

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Defendant drove to Walnut Grove to get high. He turned off his cell phone. He took off his white shirt to avoid detection. He sat in a field thick with brush and smoked cocaine. Law enforcement officers eventually found defendant in the field and took him into custody. Defendant told detectives Jamie cheated on him and "she just kept doing it," "[j]ust kept going on and on, lying and lying. She wouldn't stop. Said she was afraid of [defendant], but still kept doing it." He said Jamie wanted to leave and he agreed but he wanted her to leave the children with him and she took the children to hurt defendant. He said Jamie told him at the Panda Express restaurant that she hated him and was "doing all this stuff on purpose." Defendant said he shot Jamie because he was angry about all of the things she did to him and because she did not give a damn.

Additional background information is included in the discussion portion of this opinion where relevant to the contentions on appeal.

The jury convicted defendant of first degree murder (Pen.Code, § 187—count 1),¹ shooting at an occupied motor vehicle (§ 246 - count 2), criminal threats (§ 422 - count 3), misdemeanor vandalism (§ 594, subd. (a) - count 4) and inflicting corporal injury on a spouse (§

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