Wells v. Swarthout

• Decision Date: 30 May 2012
• Docket Number: No. 2:10-cv-3244-JKS,2:10-cv-3244-JKS
• Court: U.S. District Court — Eastern District of California
• Parties: JOSEPH C. WELLS, Petitioner, v. GARY SWARTHOUT, Warden, California State Prison, Respondent.

JOSEPH C. WELLS, Petitioner,

v.GARY SWARTHOUT, Warden, California State Prison, Respondent.

No. 2:10-cv-3244-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: May 30, 2012

MEMORANDUM DECISIONand

ORDER [Re: Motion at Docket No. 23]

Joseph C. Wells, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Wells is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered. Wells has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In August 2005 a Solano County Superior Court jury convicted Wells of first-degree murder in violation of California Penal Code § 187 with enhancements for personal use of a firearm under California Penal Code §§ 12022.5(a)(1) and 12022.53(b)-(d). The Solano County Superior Court sentenced Wells to serve fifty years to life in state prison. On February 14, 2007, the California Court of Appeal, First District, affirmed the state-court judgment in an unpublished, reasoned decision, People v. Wells, 2007 WL 466963 (Cal. Ct. App. Feb. 14, 2007). The California Supreme Court denied Wells' petition for review on May 9, 2007.

The facts of Wells' case are unique and are therefore are repeated here as they are necessary to an understanding of this Court's decision. The California Court of Appeal summarized the facts supporting his conviction for murder as follows:

Evidence presented at trial demonstrated that sometime before December 2001, a woman who was living with defendant, Christina Jones, began dating another man, Michael Sinay. Over the course of a year, as Jones maintained relationships with both men, the men engaged in an escalating series of confrontations involving threats, violence, and property damage, most of which were initiated by defendant. As one example among several, in October 2002, defendant pursued a car driven by Sinay in a high speed chase through Vallejo, Sinay's hometown, eventually rear-ending the car. Soon after, Sinay drove with a friend, Michael Yokoi, to defendant's home in Richmond. Throwing rocks, they smashed the windows of defendant's vehicle.

On December 21, 2002, Sinay was driving with Yokoi in the latter's white truck when they spotted defendant's parked vehicle in Vallejo. Yokoi put his truck in reverse gear and backed into the car, denting it. In an interview with police a few days later, Jones, who had driven defendant's car to Vallejo, said defendant was aware that a white truck had caused the damage to his car. She also told police that defendant was so angry after the incident that she took her children to spend the night at her mother's house, rather than remain in the home she shared with defendant. That night, Sinay saw defendant drive by his home.

Two nights later, on December 23, Sinay, Yokoi, Fred Heley, and Sinay's brother, James, were in Sinay's garage, which doubled as a recreation room. Around 11:30 p.m., Yokoi, James, and Heley left the garage to go to Heley's house. Yokoi split off to go to his truck, which was parked across and up the street. James and Heley continued up the street and around the corner toward Heley's house. James heard a vehicle start. Then he heard gunshots behind him. The two ran back toward Sinay's house, where they found Yokoi lying in the driveway. As he ran up, James saw a black Ford Mustang drive away with its lights off.

Sinay's mother was wrapping Christmas gifts in a bedroom on the second floor when she heard the gunshots. She got up, looked out the window, and saw a man in the driveway firing a gun. He was wearing dark clothes and a beanie. She opened the bedroom door and began shouting. Sinay heard the gunshots while he was still in the garage. He grabbed a telephone to call 911 and, as he called, stood on a stool to see out the garage window. He saw a "hefty" man in dark clothes and a beanie walking away. The man got in a dark Mustang and drove away. Sinay noted that the car had license plates from "Nino's" dealership. In a transcript of the 911 call from Sinay, he identified defendant as the shooter. Yokoi died from six gunshot wounds.

The police investigation revealed that defendant had purchased a blue Mustang convertible from Nino's Motors in Vallejo in early December. Police located the Mustang five days later in Vallejo in the garage of one of defendant's sisters. Inside was a cell phone and a receipt from a Target store in Pinole, time-stamped December 23 at 7:33 p.m. A contemporaneous surveillance tape from Target showed a man identified as defendant dressed in a black beanie, black shirt, and black pants.

A Sprint engineer, qualified as an expert witness, testified about the calls to and from defendant's cell phone that night. She stated that Sprint maintained cell phone receiving towers about one-half to one mile apart in urban areas and three to five miles apart in rural areas. In the vicinity of Vallejo and Richmond, a tower would typically be located within one-half to one mile, at most, of any caller. Because Sprint records the location of the tower receiving and routing each call, the caller's location at the time of a call can be estimated in urban areas with an accuracy of between one-half and one and one-half miles. Judging from the pattern of received and outgoing calls, the engineer determined that defendant's cell phone was located in Richmond at 10:35 p.m. on the night of December 23; on or near Cummings Skyway in Crockett, a highway between Richmond and Vallejo, at 11:02 p.m.; in Vallejo at 11:17 p.m.; and back in Richmond by 12:20 a.m. the next day.

The Carquinez Bridge is a toll bridge located on U.S. Interstate 80, a direct route between Richmond and Vallejo. At the time of the shooting, the bridge had 11 manned toll lanes, with a camera located behind each toll-taker. In addition, there were two wide-angle cameras covering, between them, all toll lanes. The bridge also had one FasTrak lane, No. 7. Vehicles passing through this lane were not required to stop, and it had no individual camera. The wide-angle camera was therefore the only photographic record of vehicles passing through lane No. 7. The individual cameras were located above the toll collector, pointing toward the door of the toll booth. As a result, the view provided by the camera was variable. As a California Department of Transportation (Caltrans) employee testified, "Sometimes you can get a very good view. If you have [a] large collector, you won't get much of a view of the person in the vehicle. If our tape is any good, you might get a good picture. If our tape is bad, you won't get anything." Caltrans's practice was to reuse the videotapes from these cameras every three to six weeks. The video quality from the cameras was described as "inconsistent," with images deteriorating as the videotapes aged through reuse.

Vallejo police detective Joseph Iacono obtained and viewed the videotapes made at the Carquinez Bridge during the hour-long period prior to Sinay's call to 911 on December 23. Iacono retrieved 13 tapes, 9 of which, he was told, covered all of the lanes individually except one, and 4 of which were wide-angle views. He described the images as "fair." Asked whether he had a "clear view" of the passing cars, he responded, "Sometimes yes. Sometimes no. Some cars are easier to make out than others." In a review of the tapes lasting several days, Iacono failed to find a blue Mustang with Nino's dealer plates passing through the toll booths. When he was finished, Iacono returned the tapes to Caltrans without making a copy of them.

Nearly a year later, a second detective, Stephen Darden, attempted to reacquire the videotapes, but by then some had been reused. Darden ultimately obtained only the wide-angle views. He spent several days reviewing the tapes he was able to get, focusing on cars passing at approximately 11:00 p.m. on the night of the shooting. Again, defendant's Mustang was not located. Darden testified that he saw one Mustang, but on closer inspection, using enhancing technology borrowed from the sheriff's office, the vehicle turned out not to be defendant's.

One of defendant's sisters testified that she borrowed defendant's cell phone on the night of the shooting. She drove from her home in Vallejo to Richmond about 9:00 p.m. to pick up the cell phone and borrow money from defendant to finish her Christmas shopping. After picking up the cell phone, she drove back to Vallejo, where she shopped, using the cell phone periodically. She returned to Richmond shortly before midnight. Defendant's sister reviewed the available wide-angle videotapes from the Carquinez Bridge taken that evening. Although she saw cars that might have been hers crossing the bridge that night, she was unable to determine with certainty whether her car was on the tapes.

The failure of the police to maintain copies of the Carquinez Bridge videotapes had become an issue earlier in defendant's prosecution. Defendant had become aware that the tapes were largely unavailable after making a discovery request in October 2003. He subsequently sought and obtained an order from the trial court dismissing the charges against him as a result of the failure of the police to maintain exculpatory evidence. This court reversed that dismissal, concluding in an nonpublished opinion that the police officers' testimony about their failure to locate defendant's car on the videotapes constituted "'comparable evidence'" to the lost tapes and that there was insufficient evidence to support defendant's claim that the officers had acted in bad faith in failing to maintain the evidence.

After the presentation of evidence about the videotapes at trial, the court asked counsel to approach the bench, and a discussion was held off the record. Following the discussion, defense counsel asked in the presence of the jury to make a motion. Granted permission, counsel made a speaking motion to dismiss the case

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