Scott v. Swarthout
| Decision Date | 16 January 2015 |
| Docket Number | Case No. 12-cv-04901-VC |
| Court | U.S. District Court — Northern District of California |
| Parties | MILTON B. SCOTT, Plaintiff, v. GARY SWARTHOUT, Defendant. |
In this habeas petition, Milton Scott asserts that his first-degree murder conviction was obtained in violation of, among other things, his Sixth Amendment right to effective assistance of counsel. This is not an easy case—the performance of Scott's lawyer was clearly deficient, and the lawyer's failures had a significant effect on the evidence heard by the jury. But the Court cannot grant habeas relief unless it is convinced that any fairminded judge would agree that Scott's Sixth Amendment right to effective assistance of counsel was violated. Because reasonable minds could differ about whether Scott was prejudiced as a result of his lawyer's deficient performance, the petition is denied.
On March 12, 2005, Scott shot and killed Lemech Nelson outside a liquor store in San Pablo, California. Although much of the evidence at trial was disputed, the following basic facts were not: (i) Scott and Nelson had a history of animosity; (ii) Scott and Nelson encountered one another in the liquor store; (ii) Scott left the store, got into a friend's car, and borrowed the friend's gun; (iii) Scott got out, saw Nelson getting into his own car, and approached Nelson with the gun drawn; and (iv) Scott fired multiple shots at Nelson, killing him.
In August 2007, the Contra Costa County District Attorney's Office charged Scott withfirst-degree murder. Scott was tried three times. The first two trials resulted in hung juries and the third resulted in a conviction. Most relevant for purposes of this habeas case is what happened in the first and third trials. Some highlights from those trials are discussed in this section; more details are set forth in Section IV(B).
In the first trial, the prosecution called Marcus Combs - the friend whose gun Scott used to kill Nelson - to testify. The prosecution was hoping to elicit testimony from Combs that Scott indeed shot Nelson that night, because that is what Combs had told the San Pablo police in an interview. But Combs testified that he did not know anything about Nelson's murder, and that he did not recall where he was on the night of the shooting. The prosecutor asked Combs if police officers had previously questioned him about the incident. Combs responded that they did question him, that they asked him essentially the same questions the prosecutor was asking him on the stand, and that he gave them essentially the same answers, namely, that he did not know anything about the shooting or Scott's alleged involvement in it. The prosecutor did not impeach Combs with his prior statement to the police. Scott's attorney then cross-examined Combs briefly to confirm that Combs did not know anything about the shooting. When Combs finished testifying, he was excused, but was informed that he was subject to recall. Ex. 3, ART, Vol. 3A 591.1
After Combs' testimony but before the prosecution finished presenting its case, the district attorney's office learned that the San Pablo police officers had recorded their interview with Combs. The prosecution disclosed the tape to Scott's attorney, who objected to its admission on the ground that the disclosure came too late. The trial court overruled the objection. The court concluded that the late disclosure of the recording did not prejudice Scott because, even though defense counsel did not know the exact content of Combs' statement, counsel was already aware, at a minimum, that Combs had given the police a statement implicating Scott in the shooting. Ex.3.
Despite the trial court's ruling, the prosecution chose not to introduce the tape into evidence. Instead, the prosecution called Matt Wasteney, an investigator from the district attorney's office, to testify about the contents of the tape. Wasteney had not participated in the Combs police interview, nor was he present when it happened. Wasteney merely listened to the tape after the prosecution discovered it, and told the jury what he heard. Wasteney told the jury that he heard Combs tell the police the following things: (i) Scott shot Nelson at the liquor store that night; (ii) Scott, Combs, and a third companion (Alfred Griego) were driving away from the liquor store when Scott turned the vehicle around and decided to confront Nelson with a gun; (iii) Combs implored Scott not to confront Nelson; (iv) the altercation was related to prior animosity between Scott and Nelson; and (v) Scott shot and killed Nelson. On cross-examination, Wasteney conceded that Combs told the police he was drunk that night. And Wasteney conceded that Combs repeatedly asked the police for money in exchange for his statement. Wasteney also confirmed that the police in fact paid Combs for providing the statement. Although Scott's lawyer had previously objected to the tape on the ground that the prosecution disclosed it too late, he did not challenge the admissibility of Wasteney's testimony on any grounds. Ex. 3, ART, Vols. 3A and 4A.
Scott testified at the first trial. Although his attorney had promised an alibi defense during opening statements, Scott admitted on the stand that he'd shot and killed Nelson outside the liquor store. Scott testified that Nelson had harassed him and threatened to kill him on prior occasions, and that on the night of the killing Nelson whispered to Scott in the liquor store, "you and your son are dead." Scott testified to feeling a combination of extreme fear and rage, which was compounded by the fact that Nelson had not merely threatened Scott, but had also threatened his infant son, whose location (five minutes from the liquor store) was known to Nelson. Scott testified that after he got in the car to drive away, he borrowed Combs' gun, got back out of the car, and approached Nelson, who was now getting into his own car after having left the liquor store. According to Scott, Nelson looked at him and began to make a move into his car, as if he was reaching for a gun. This, according to Scott, is when he shot Nelson multiple times, killinghim. Scott emphasized during his testimony that he was frightened, angry, and confused during the whole incident, and that he acted out of fear for his son's life. Ex. 3, ART, Vol. 4A.
The jury also saw video footage from the liquor store's security cameras. The footage showed Scott and Nelson in the liquor store minutes before the shooting and part of the shooting itself. See Doc. No. 31.
The trial court instructed the jury on first-degree murder, second-degree murder, manslaughter and self-defense. Ex. 1, Vol. 3 CT 621-51. During deliberations, the jury sent the judge a note asking for a transcript or a recording of Combs' interview with the police. The judge sent a note back explaining that the recording was not in evidence. Ex. 1, Vol. 2 CT 523. The jury could not reach a decision whether to convict Scott of first-degree murder. Ex. 1, Vol. 2 CT 590.
The second trial ended with a hung jury as well (this time because the jury could not agree whether Scott was guilty or not guilty on any charge). Ex. 1, Vol. 4 CT 1004 (note from jury), 1006 (mistrial declared). The prosecution tried Scott a third time. When the prosecution brought Combs to the stand in the third trial, he refused to answer any questions, asserting his Fifth Amendment privilege against self-incrimination. The prosecution then introduced Combs' testimony from the first trial (in which Combs denied knowledge of the shooting), and played the tape of the police interview to "impeach" that testimony from the first trial. By listening to the tape, the jury heard Combs tell the police the following things, which are similar to what Wasteney told the first jury: (i) Scott shot Nelson at the liquor store that night; (ii) Scott, Combs, and Griego were driving away from the liquor store when Scott decided to get back out of the car and confront Nelson with a gun; (iii) Combs implored Scott not to confront Nelson; (iv) the altercation was related to prior animosity between Scott and Nelson; and (v) Scott shot Nelson. On the tape, Combs made conflicting statements to the police about how drunk he was that night and repeatedly asked the police for money in exchange for his statement. The third jury also heard Combs tell the police something Wasteney had not relayed to the first jury, namely, that Scott had shot Nelson in the leg on a prior occasion. Scott's defense lawyer did not object to the tape'sadmission; he merely requested that the jury hear the entire tape, rather than the prosecutor's selected portions of it. Ex. 2, RT 247-49.
Scott again testified in his defense, and provided substantially the same testimony as in his first trial, namely, that he was angry and frightened, that he wasn't thinking clearly, and that his actions were driven primarily by fear for his infant son's life. The prosecutor cross-examined Scott extensively about how Scott's lawyer had originally presented a false alibi defense at the first trial. The prosecutor also cross-examined Scott extensively on the fact that his self-defense testimony in the third trial seemed more tailored and detailed than in the first trial, despite the fact that the third trial was further in time from the shooting. Ex. 2, RT 547-634.
The jury also saw the same video footage from the liquor store's security cameras, showing Scott and Nelson in the liquor store minutes before the shooting and part of the shooting itself. See Doc. No. 31. The video, as well as other evidence considered by the jury, will be described in further detail in Section IV(B). But it is indisputable that the most important evidence adduced at the third trial was Scott's testimony, the video footage from the liquor store, and the Combs tape.
The jury convicted Scott of first-degree murder.
On direct appeal, in addition to other claims not relevant to...
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