Richardson v. Newland
| Decision Date | 04 November 2004 |
| Docket Number | No. CIV.S-97-2318WBS DAD P.,CIV.S-97-2318WBS DAD P. |
| Citation | 342 F.Supp.2d 900 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Robert Howard RICHARDSON, Petitioner, v. A.C. NEWLAND, et al., Respondents. |
Saor Eire Stetler, Thomson and Stetler, Berkeley, CA, for Petitioner.
John Adrian Gordnier, California Attorney General's Office, San Francisco, CA, for Respondents.
AMENDED ORDER
Petitioner, a state prisoner proceeding with counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On September 13, 2004, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Respondents have filed objections to the findings and recommendations. Respondents have also filed a motion seeking an order directing that the writ will be granted only in the event that retrial of the case or a stay pending appeal does not occur within a reasonable time. Petitioner's counsel has no opposition to the latter request.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 13, 2004, are adopted in full; and
2. Petitioner's application for a writ of habeas corpus is granted on his claim that the Confrontation Clause was violated by the admission into evidence, at the joint trial, of Michelle Garduno's extrajudicial statements and in the denial of his motion for a severance unless the state grants petitioner a new trial within 120 days from the date of this order or a stay pending appeal is issued;
3. Petitioner's application for a writ of habeas corpus is denied in all other respects; and
4. The Clerk of Court is directed to serve a copy of this order and the October 26, 2004 order on the parties, the California Department of Corrections, and the penal institution where petitioner is currently housed.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1992 conviction of first degree murder involving the personal use of a firearm. He claims that: (1) the trial court erred in denying his motion to change venue; (2) the trial court erred in failing to sever his trial from that of his co-defendant; (3) the trial court erred in admitting his co-defendant's extrajudicial statements into evidence; (4) the trial court erred in denying his motion to suppress his confession; (5) his trial counsel rendered ineffective assistance; (6) his trial counsel had a conflict of interest; and (7) cumulative error requires reversal of his conviction. After a careful review of the entire record in this action, including the lodged records of the state court, this court has determined that the petition for habeas corpus should be granted on petitioner's Confrontation Clause and severance claims and denied in all other respects.
Defendant made the following confession to police officers. On December 21, 1991, he awakened about 3 a.m. after four hours of sleep to go to the bathroom. He had quarreled with his wife, Linda Richardson, on the evening before about his desire for a divorce. He had decided "that it was, you know, me or her." He got up and went to the bathroom. While there "I just told myself to do it." He then walked to the spare room, grabbed a loaded pistol, returned to the bedroom and shot his wife once in the temple. As he was getting the gun he thought about where to shoot her so that she would not suffer. He knew that it was not "the right thing to do" but "it was just so quick that I didn't think to stop before I did it." The whole thing "mighta taken 5 to 10 minutes." He suggested that he was motivated in part by the victim's remark that she would kill him before she gave him a divorce. However, he admitted that he did not think "she had the nerve for it."
Defendant told the police that after the killing he decided the best thing to do was to move the body. He dragged her out to the jeep and drove from his home near Portola to Stockton where he left the jeep and the body in the Macy's parking lot. He telephoned Michelle Garduno, a good friend, the young lady whose telephone call the evening before had precipitated the argument. She picked him up in her car and he informed her of the killing. He then spent the day with her as she was baby-sitting for a friend. That evening she gave him a ride home.
Garduno also made an out-of-court statement to the investigating officers. She related that after she picked defendant up at Macy's he gave her an account of the killing after which, in the evening, she and a friend drove him to his home. Defendant was charged with murder and Garduno as an accessory. Garduno was found not guilty by verdict of the jury.
The day before trial in an informal conference the defendant indicated a desire to make an in limine motion. The exact nature of the motion is obscure since the conference was not of record; inferably it pertained to the statement given by Garduno to the police. When the matter came on for trial on July 14, 1992 the prosecutor spoke first, asserting that the motion "in effect, raises the issue of the separate trials under Aranda."2 The prosecutor argued that the court had correctly decided that issue when it denied an earlier motion for severance by the co-defendant Michelle Garduno. The prosecutor argued that under People v. Keenan (1988) 46 Cal.3d 478, 250 Cal.Rptr. 550, 758 P.2d 1081, raised by defendant, the issue was antagonistic defenses, but there was no antagonism between the defenses of defendant and Garduno.
The defendant argued that there was such antagonism because of Garduno's assertion in her statement to the police that before the killing defendant said he would "get rid of" his wife. The prosecutor asserted that "the Aranda-Bruton Rule deals with the fact pattern and a fact situation which is dramatically different than the one before this Court." He asserted that no Aranda problem existed because both defendants had confessed. He also asserted that the statement of Garduno would be admissible against defendant under hearsay exceptions even if there were a separate trial. The defendant disputed this assertion, citing, inter alia Cruz v. New York (1987), 481 U.S. 186 [107 S.Ct. 1714, 95 L.Ed.2d 162]. The court denied the motion in limine.
The next day on July 15, 1992, during jury selection, defendant made a motion to sever, again in an unreported chambers session. The matter was continued until the next morning. Again, the prosecutor argued first. He claimed that severance was unnecessary because the statements of the defendants would be cross-admissible in separate trials under hearsay exceptions. Defendant again complained of the prospect of admission of Garduno's statement concerning his pre-offense statements about getting rid of his wife. He argued that no hearsay exception applied.
The trial court decided that without redaction the statement of Garduno would not be admissible against defendant. It directed deletion of references to defendant's pre-offense statements and indicated the motion for severance would be denied. The defendant then moved to exclude his confession on the ground that it was involuntary and a violation of the right against self-incrimination. The prosecutor replied that the exclusion motion was untimely. The court denied the motion to suppress the confession and the motion to sever.
The prosecution commenced its case, adducing evidence as follows. Police officers located the body in the jeep in the Macy's parking lot with a contact gunshot wound to the right side of the temple. Linda Richardson's sister, Marcella Webb, went to defendant's house shortly before 9 p.m. on December 21, 1991. She had a key and let herself in. Webb had been unsuccessful in her attempts earlier that day to reach her sister. She looked in the back bedroom to see if there were any clues to her sister's whereabouts. She saw a bloodstain about three inches in diameter on the mattress, it had soaked through to the bottom. Webb went home.
Shortly after Webb arrived home defendant telephoned her and inquired if she knew where his wife was. She told him she did not and he said he would come to her house. He arrived and after a brief discussion she told him she was calling the sheriff. Deputy Sheriff Dwight Cline came to her house and spoke with them. Webb told Cline about the bloodstain out of defendant's presence. Cline left. Webb asked defendant if he had done anything to her sister. He tearfully denied the accusation. When defendant left Webb's home she called Cline and informed him.
Cline went to defendant's house and when defendant arrived Cline told him that he needed more information for the missing persons report. Defendant invited him into the house. Cline asked if anything was missing from the house. Defendant invited him to accompany defendant in looking to see if anything was missing. Cline noticed that the mattress was missing. Defendant said he had taken it to Reno to be repaired. Cline saw various firearms in another bedroom and an empty leather holster. He also saw a single...
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