Winter v. Scribner, No. CIV S-05-543 KJM EFB P

• Decision Date: 09 April 2012
• Docket Number: No. CIV S-05-543 KJM EFB P
• Parties: THOMAS WINTER, Petitioner, v. A.K. SCRIBNER, Respondent.
• Court: U.S. District Court — Eastern District of California

THOMAS WINTER, Petitioner, v. A.K. SCRIBNER, Respondent.

No. CIV S-05-543 KJM EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: April 9, 2012.

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding through counsel, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of his 2001 convictions and resulting sentence for robbery and first degree felony murder with special circumstances. Petitioner contends that: (1) the trial court violated his constitutional rights by admitting into evidence at his trial a statement from petitioner that was obtained during a custodial interrogation in which he was not properly advised of his right to remain silent and in which his attempts to stop the interrogation were ignored; (2) the evidence admitted at trial was insufficient to support each of his convictions; and (3) the jury was improperly instructed at trialregarding the requisite concurrence of petitioner's criminal acts and intent. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

In 1997, a Shasta County Superior Court jury found petitioner guilty of first degree murder and robbery. It also found true the allegations that petitioner used deadly weapons (a truck and a tire iron) in the commission of the offense, that he inflicted great bodily injury on the victim, and that he committed the murder during a robbery and while lying in wait. Dckt. 38-1 (hereinafter "Winter I") at 1-2. Petitioner filed an appeal in the California Court of Appeal for the Third Appellate District, which reversed his convictions because the trial court had improperly admitted statements he made before being advised of his rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Id. The appellate court concluded that petitioner was in custody, and should have received Miranda warnings, "at the moment the officers rebuffed [petitioner's] second oral request to leave," and that all statements between that time and the time petitioner received the Miranda warnings should have been excluded at petitioner's trial. Id. at 19. The court declined to rule on whether petitioner's post-Miranda statements "or other evidence derived from the Miranda violation" would be admissible at any retrial. Id.

Petitioner was retried in 2001. Prior to the retrial, petitioner filed a motion to suppress all of his statements to police. Resp.'s Lodg. Doc. No. 9, Clerk's Transcript on Appeal (hereinafter CT), at 279-92. Therein, petitioner argued that his statements made prior to the time the officers rebuffed his second oral request to leave should be excluded from the retrial because those statements were also custodial. Id. at 284-85. He argued that his post-Miranda statements should also be excluded because the police ignored his repeated assertions of the right to remain silent. Id. at 288-92.

In ruling on this motion, the trial judge first concluded that he was bound by the prior decision of the California Court of Appeal (Winter I) with regard to when petitioner was "incustody" for purposes of the Miranda decision. Resp.'s Lodg. Doc. 8, Reporter's Transcript on Appeal (hereinafter RT), at 51-52. Thus, he ruled that all of petitioner's statements made prior to the time the officers rebuffed his second oral request to leave were admissible at the retrial. Id. With respect to petitioner's post-Miranda statements, the trial judge defined the relevant issue as follows: "was the waiver a product of a coercive interview prior to the admonition which would deprive Mr. Winter of the free exercise of his will in deciding whether to waive his privilege against self-incrimination." Id. at 102. The trial judge found that because the interrogation, in general, was "non-coercive" and "very low key," petitioner's Miranda waiver was valid. Id. at 102-03. The judge further found that petitioner's post-Miranda statement, "I mean, that's all I have to say on the whole thing" was not an unequivocal invocation of his right to remain silent. Id. at 103-05. Accordingly, at the retrial, the trial court admitted into evidence that portion of petitioner's police interrogation that occurred before petitioner was "in custody," as determined by the California Court of Appeal in Winter I, as well as the portion that occurred during and after the Miranda warnings. Resp.'s Lodg. Doc. 10.¹

After the retrial, the jury again convicted petitioner of first degree murder and robbery, found true the special circumstance of murder during the course of a robbery, and found true allegations that petitioner inflicted great bodily injury and used a deadly weapon (the tire iron). Resp.'s Lodg. Doc. 1 (hereinafter Winter II) at 2.² The jury found not true allegations thatpetitioner used the truck as a deadly weapon and that he had lain in wait for the victim. Id. As a result, petitioner was sentenced to a state prison term of life without the possibility of parole plus one year. Id.

Petitioner again appealed his convictions and sentence to the California Court of Appeal for the Third Appellate District. Id. On September 17, 2003, the appellate court denied petitioner relief and affirmed his convictions and sentence. Id. at 27. Petitioner then filed a petition for review in the California Supreme Court, which was summarily denied on December 23, 2003. Resp.'s Lodg. Doc. 7.

Petitioner's federal habeas petition was received for filing by this court on March 21, 2005. Dckt. 1. Respondent filed an answer on August 16, 2005. Dckt. 8. On March 10, 2010, this court issued an order appointing counsel for petitioner and, in the same order, requested that both parties file supplemental briefing on the following issues:

a. Whether one or more of petitioner's pre-Miranda statements amounted to an invocation of the right to remain silent, and if so, whether petitioner exhausted any such claim;

b. Whether one or more of petitioner's post-Miranda statements amounted to an invocation of the right to remain silent;

c. Whether petitioner's Miranda waiver and/or post-Miranda statements were involuntary; and

d. Whether petitioner's post-Miranda statements were inadmissible under Oregon v. Elstad, 470 U.S. 298 (1985) and/or Missouri v. Seibert, 542 U.S. 600 (2004).

Dckt. 15. Petitioner filed his supplemental brief on April 3, 2011. Dckt. 38. On June 22, 2011, respondent filed his supplemental responsive brief, and on August 2, 2011, petitioner filed a reply. Dckts. 44, 48.

II. Factual Background³

Viewing the evidence in favor of the verdict, [petitioner] and [his friend and co-defendant Christopher Wachniuk] drank with [the victim, Dennis Howell] in a tavern, convinced him to leave with them to buy drugs, then robbed and killed him.

A debtor of Howell's paid him $80 on October 16, 1996, and saw Howell had a wad of bills, about $200 worth. A videotape from the Castle Lounge tavern shows Howell entered at 7:18 that evening. He told an off-duty bartender he had just been paid and he seemed happy. He displayed a "stack" of money.

The kitchen manager of Kona's restaurant was on a billiards team which was going to play the Castle Lounge team at 7:30. He saw [petitioner] and Wachniuk at Kona's at about 6:30 drinking a pitcher of beer. Although one of the two agreed to play in the tournament on the Kona's team, neither showed up at the Castle Lounge on time. They had said they were reluctant to play because they had no money. Later he gave them $5 (enough for two beers) for belatedly showing up.

A Castle Lounge regular customer testified [petitioner] or Wachniuk asked him outside to smoke marijuana, but he declined. Another regular customer became concerned because Howell's drinking companions did not seem like friends. Howell seemed drunk, but they did not. At times "[t]hey seemed like they were whispering and talking to each other without him being aware of what they were saying. I was kind of concerned about that." "They were kind of laughing, and it wasn't like they were laughing with him, it was like they were laughing at him." At one point Howell called [petitioner] a "peckerwood," but Howell explained he was joking and it seemed like the men were joking about it. Detective Paul Grooms testified he had since learned that "peckerwood" is a term associated with "white pride" and can be offensive. Later, Howell asked the second regular customer if he wanted to smoke marijuana, but this regular, too, declined. Howell asked him to tell the barmaid to put his pitcher "on ice, that he would be right back," at about 8:52.

The Castle Lounge barmaid knew Howell well and although he could become "loud and boisterous" he did not cause problems and "was a nice guy. He was a fun guy." [Petitioner] and Wachniuk nursed one bottle of beer each that evening, and also shared Howell's pitcher. [Petitioner] and Wachniuk never left Howell alone, and when they spoke just with each other, they seemed to be conferring, rather than talking. When she noticed the three menhad left, she was surprised to see Howell's pitcher partly full of beer on the counter; Howell rarely left beer unconsumed.

[Petitioner] and Wachniuk went to the Bell Lounge around 9:30 or 10:00 that night and stayed for perhaps an hour. They were nervous and bought several drinks (mostly doubles) in that time, always paying with $20 bills. At one point Wachniuk had his arm around [petitioner] and told him to shut up a couple of times. After that, the barmaid told them she would not serve them more drinks. They still tipped her lavishly.

Meanwhile, a girl had found Howell's corpse on a road near the local dump at about 9:00 that night. A sheriff's deputy arrived shortly thereafter. The body was not very cold and the deputy thought "the person there wasn't deceased for very long." He thought it was strange there were

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