Stayer v. McDonald

• Decision Date: 31 May 2011
• Docket Number: No. CIV S-09-2588 MCE CHS P,CIV S-09-2588 MCE CHS P
• Court: U.S. District Court — Eastern District of California
• Parties: TIMOTHY STAYER Petitioner, v. M. MCDONALD, Respondent.

TIMOTHY STAYER Petitioner,

v.M. MCDONALD, Respondent.

No. CIV S-09-2588 MCE CHS P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: May 31, 2011

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Timothy Stayer, a state prisoner, proceeds through appointed counsel with a second amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of first degree murder, conspiracy to commit torture, torture, kidnapping, and destruction of evidence in the Shasta County Superior Court, case number 04F8744, for which he is currently serving a term of life in prison without the possibility of parole, plus an additional consecutive life term, plus various other terms to run concurrent with the life sentences. The second amended petition, respondent's answer, petitioner's traverse, and both parties' supplemental briefs are before the court. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.

II. BACKGROUND

The victim, Christopher McCauliffe, died on November 21, 2004. Several codefendants were charged with various crimes in connection with his murder. Petitioner was charged with murder (count one); conspiracy to commit torture (count two); torture (count three); kidnapping (count four); and destruction of evidence (count six). As an enhancement and special circumstance, it was alleged that the murder was committed in the course of felony kidnapping. As an additional enhancement, it was alleged that petitioner had previously incurred a felony conviction.

Petitioner was tried in a joint trial with one other co-defendant, his brother Robert Stayer. The California Court of Appeal's background summary of the case on direct review is recounted below. The footnotes, while numbered differently than in the original, are those of the California Court of Appeal. Since these factual findings have not been rebutted with clear and convincing evidence they are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). For the sake of simplicity, Timothy Stayer, Robert Stayer, and Robert's wife, Kimberly Stayer, are referred to by first name in the court of appeal's factual summary opinion and in the rest of this report, except where Timothy Stayer is referred to as the petitioner.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution evidence¹

Defendants [Timothy and Robert] did not testify, but their recorded statements to the police were played for the jury in redacted form. (The transcripts given to the jury were not admitted in evidence, but the parties do not dispute their accuracy.) The trial court instructed the jury that neither defendant's statement could be used against the other defendant.

The crimes

In November 2004, defendants, who are brothers, and Kimberly lived with defendants' mother ([Katherine] Tuschen) and her three younger children in Anderson, California.²

On the evening of Saturday, November 20, defendants and friends went to a party. Timothy went with Haley Savage in her Nissan Altima; Robert, [Kevin] Skelton, and [Daniel] Coyne went in Coyne's Chevy Silverado pickup.³

Meanwhile, Tuschen and Christopher McCauliffe met at a bar and decided to have sex. She brought him home after midnight on November 21. No one was there.

After leaving the party, Robert, Skelton, and Coyne bought two 12-packs of beer and went to a friend's apartment in Redding. Savage drove Timothy home to pick up his cell phone charger.

Savage parked and waited while Timothy, who lacked a key, knocked on the front door, then went to the back.⁴ Through an opening in the blinds, he saw Tuschen having sex with McCauliffe. After [Tushcen] heard Timothy knocking, she let him in.

Timothy, hearing McCauliffe's name, realized that he was the boyfriend of Timothy's ex-girlfriend, Laura Minkoff. Timothy left her a message on his cell phone. McCauliffe then attacked him.

In the ensuing fistfight, Timothy broke McCauliffe's nose, blackened one eye, and spattered blood all over the bedroom. After taking him out of the house, Timothy put him in a chair on the front porch.⁵

McCauliffe's body, when found, showed evidence of recent severe diarrhea. Forensic pathologist Dr. Susan Comfort opined that such diarrhea is an effect of Diazinon poisoning.

At some time, Timothy called Robert. Timothy told the police thathe said, "I'm locked out of the house ... and mom's having sex with somebody." Robert told the police that Timothy said "get down to the house" because of a "problem." According to Kimberly, Robert later told her that Timothy had urged them to come "[t]o beat up Christopher McCauliffe"; however, she called this a "paraphrase." According to Coyne, after taking the call Robert said, "We have to go. There's trouble[,]" then said, "There's some guy at the house." According to Skelton, Robert said that they "needed to go to Anderson," but did not explain why.

Robert, Skelton, and Coyne drove quickly to Tuschen's house in Coyne's pickup, taking their beer. When they arrived, Timothy and Tuschen were standing by the front door; Timothy was yelling at McCauliffe, who sat in a chair on the porch, badly beaten and bloody.

Timothy said to Robert: "Hey [b]ro, this guy's been fucking mom" (or words to that effect).⁶ According to Coyne, Robert threw a beer bottle, hitting McCauliffe in the forehead, and followed up with a punch that knocked him off the chair.⁷ As he lay on the ground unresisting, Robert hit him four or five more times until pushed away and told to "chill" by Coyne. McCauliffe remained motionless on his side.

Timothy dragged McCauliffe face-down into the garage, then hovered over him cursing. Robert, Skelton, Coyne, and Tuschen also entered the garage. The door shut.

Coyne testified that he did not see any more abuse of McCauliffe in the garage before going into the house, as Skelton and Tuschen also did. Robert came in with Coyne, but must have gone back out. Timothy apparently remained in the garage.

A few minutes later, Robert came back in holding a jug or bottle and said to Coyne: "I poured this on him"; asked why, he shrugged. According to Kimberly, Robert later said he had poured "bug spray" on McCauliffe's eyes because McCauliffe was trying to use his cell phone.⁸

Timothy told Coyne to back up his truck to the garage. Timothy and Skelton picked McCauliffe up and walked him to the truck,which he put his hand on to steady himself. Coyne saw "some type of liquid on him" which smelled so horrible that it was hard to breathe. McCauliffe said, "I can't see" and "[i]t burns."

After McCauliffe sat on the tailgate, Timothy and Skelton put him into the truckbed. Coyne, Robert, and Skelton drove away from the house. No one had said where they were going.

According to Coyne, he stopped and asked Robert where to go; Robert directed him to the boat ramp at Anderson River Park, four or five minutes away, but would not say why.⁹ When they arrived there, it was very cold.

Skelton dragged McCauliffe out of the truck, dropped him onto the parking lot, straddled him, and kicked him twice in the ribs, saying: "Don't mess with people's mothers."¹⁰ Next, Robert (whom Coyne believed to weigh 240 or 250 pounds) stomped McCauliffe in the head around eight times, jumping up and down while holding a cell phone taken from McCauliffe. Coyne heard McCauliffe's head hitting the asphalt. Skelton finally ran over and stopped Robert.

Robert, Skelton, and Coyne then drove back to the house, leaving McCauliffe lying on the asphalt. No one called 911 to get help for him.

Savage, who had driven away, returned to the house in time to see McCauliffe carried out to Coyne's truck and the truck pull away. She called Timothy, who came out and sat in the driver's seat as she moved over. He smelled of pesticide, but claimed he did not know why. They drove to the boat ramp, where she saw someone on the ground. Timothy went over to him, came back quickly, and said: "He's fine. He's breathing. He's okay." She said they needed to call 911; he replied, "I know, I know," but did not call. They returned to the house. In the garage, Savage saw blood and smelled the odor she had noticed on Timothy.

When Robert, Skelton, and Coyne got back to the house, they found Timothy hosing down the porch, while Tuschen was inside shampooing the carpet.¹¹ According to Coyne, the garage smelled strongly of pesticide.

When Timothy heard that the others had gone to the boat ramp, he said that he had thought they would go to a big tree in the park called the "Senior Tree."

According to Coyne, after 20 minutes at the house, he and Robert drove in the truck, which smelled of pesticide, to a house where Robert did a drug deal, then to a car wash. They were met by Timothy, Skelton, Savage, Kimberly, and Kimberly's sister, who came in Savage's car, driven by Timothy. The group tried to purge the vehicles of evidence as some of them discussed and acted out what was done to McCauliffe, unaware that the car wash's video recorders were taping it all.

Timothy and Savage drove to her home. Robert, Kimberly, and Coyne dropped off Skelton, then checked in at a Motel 6 around 3:30 a.m.; claiming to lack identification, Robert gave Coyne money to rent the room. Once inside, Robert cleaned blood from his lower leg.

After a cell phone discussion with Timothy, Coyne drove to Savage's home. Timothy said that he had gone to the boat ramp, seen McCauliffe, and heard him wheezing. Alarmed, Coyne decided to check on it; Savage let him take her car.

At the boat ramp, Coyne found McCauliffe lying motionless and unresponsive. Coyne called Timothy, who told him to put McCauliffe in the back seat of Savage's car. Timothy and Savage then drove there in Coyne's truck.

Timothy went over to McCauliffe, shook him, and announced: "Dude is dead as fuck." He told Coyne again to put the body in Savage's back seat and take it away. According to Coyne, he said: "No, we have to call the cops," but Timothy answered: "No,

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