Keller v. McDonald

Filing 12

ORDER DENYING re 4 Petition for Writ of Habeas Corpus filed by Lovell S. Keller. Signed by Judge Charles R. Breyer on 11/4/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 11/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LOVELL S. KELLER, G-56168,
Petitioner,

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vs.
M. McDONALD, Warden,
Respondent.

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No. C 11-1190 CRB (PR)
ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS

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Petitioner Lovell S. Keller, a state prisoner incarcerated at California State

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Prison, Solano, seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming

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that the police violated their duty to preserve material evidence under California

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v. Trombetta, 467 U.S. 497 (1984). For the reasons set forth below, the petition

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is DENIED.

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STATEMENT OF THE CASE
Petitioner was convicted by a jury in Mendocino County Superior Court of

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first degree murder, Cal. Penal Code § 187, with a knife-use allegation, id. §

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12022(b)(1), and first degree burglary, id. § 459. On April 28, 2009, the court

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sentenced him to 25 years to life plus one year. Petitioner appealed.

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On August 11, 2010, the California Court of Appeal affirmed the

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judgment of the trial court and, on October 20, 2010, the California Supreme

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Court denied review.

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On April 6, 2011, petitioner filed the instant federal petition.

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FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal summarized the factual and procedural
background of the case as follows:

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I. Facts

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Defendant Lovell Sabastian Keller lived in Willits with his longterm girlfriend, Darcy McNulty, and their young son. He worked at
a café with Brandi Carlile, who lived about half a mile away from
defendant with her long-term boyfriend, Riley Gibbons, and their
four-year-old daughter. Defendant and Carlile became close
friends and started having a sexual relationship. Gibbons had seen
text messages from defendant on Carlile’s cell phone, though
Carlile denied that she and defendant were having an affair.

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On June 10, 2008, defendant and McNulty had a barbeque with
family members. On the same day, Carlile and Gibbons had
another couple over to their house to watch basketball, eat pizza
and play cards. Both groups drank considerable amounts of alcohol
at their respective gatherings.

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Defendant left his house during the evening and walked to the
Village Market to buy another bottle of the liqueur he had been
drinking since the afternoon. Coincidentally, Gibbons arrived at
the market at about the same time to buy some cigarettes. The store
clerk, Sonia Mendoza, believed defendant had been drinking but
did not think he was too intoxicated to purchase alcohol.
Gibbons approached the counter as defendant was completing his
purchase. Defendant gave him what appeared to be a friendly
nudge and said, “I love your wife.” Gibbons responded by
punching defendant near his right ear, causing him to fall against a
glass display case. After defendant fell to the floor, Gibbons
straddled him and punched him several times in the head.
Defendant did not punch Gibbons or otherwise defend himself.
Mendoza called the police and Gibbons left the store.

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Officer McNelley and Sergeant Anderson of the Willits Police
Department responded to the call at 11:05 p.m., about five minutes
after dispatch received Mendoza's call. Officer McNelley
interviewed defendant, who had some blood on his ear, and took a
photograph of the injury. Defendant was intoxicated but did not
appear to be unable to take care of himself. He told McNelley he
had been attacked from behind and punched three or four times, but
had not lost consciousness. Defendant identified Gibbons as his
assailant and wanted him arrested, but McNelley would not arrest
Gibbons for a misdemeanor committed outside his presence.
Instead, the proper procedure was to submit the case to the district
attorney. Sergeant Anderson viewed a digitally recorded store
surveillance video that showed Gibbons’s assault on defendant, but

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Anderson was unable to download the video himself and no one
working at the market was able to provide a copy.

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McNulty came to the market after learning of the attack, and she
and defendant walked home together. She thought defendant
seemed stunned and “kind of delusional.” Meanwhile, Gibbons
had returned to his house and told Carlile he had “just beat up [her]
little wannabe boyfriend Lovell.” Gibbons also accused Carlile of
sleeping with defendant. Carlile, who was drunk and did not want
to discuss the subject, denied the accusation and went to sleep with
her daughter in the bedroom.
At about 3:00 in the morning (by now it was June 11), Carlile
awoke and realized that Gibbons had not come to bed. She got up
and discovered him lying dead on the kitchen floor in a pool of
blood, having been stabbed several times. Hysterical, she
telephoned 911. Officer McNelley and Sergeant Anderson were
dispatched to the house at 3:12 a.m. Anderson had driven by
between 1:00 and 2:00 a.m. as part of his regular patrol and had
noticed the front door was open and the lights were on, but he had
not investigated because he knew the people who lived there
sometimes entertained late into the night.

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After discovering Gibbons’ body, Carlile checked her cell phone
and discovered that at 12:05 a.m. on June 11, defendant had sent
her a text message that said, “Y boy is dead.” Defendant, having
already been questioned, was taken into custody, advised of his
Miranda rights and interrogated. He admitted a sexual relationship
with Carlile and explained that he had sent her the text “Y boy is
dead” because he intended to beat up Gibbons next time he saw
him.
About two-tenths of a mile from Gibbons’ house, investigators
found a knife in a storm drain under a grate. McNulty identified a
photograph of the knife as one of her kitchen knives. She told
police that she and defendant had walked home after he was
assaulted at the market, but acknowledged that he later left the
house again and returned while she was in bed.

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Defendant placed a telephone call to McNulty from jail. During the
call (which was recorded) he said, “[I]t’s my fault ... I shouldn’t of
went over there ... I went over there to hurt him....” Defendant
added, “I didn’t intend on going over there to kill that guy ... [¶]
That wasn’t my plan ... but that’s what happened.” Defendant told
McNulty that Gibbons had jumped out of his chair and come at
him, at which point defendant stuck him and stabbed him in the
back. After asking McNulty to get a copy of the surveillance tape
from the market showing Gibbon’s earlier assault on defendant,
defendant explained, “[I]t’s showing how that mother fucker
attacked me, he didn’t have no mercy when he hit me in the back of
my head ... so why should I have mercy when I went to his house
and took his life?”

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A medical examiner performed an autopsy on Gibbons’ body and
determined that he had bled to death from multiple stab wounds to
the chest. He had suffered a total of ten stab wounds, all above the
waist: five in the back, three in the front, and one on each arm. One
wound had collapsed a lung; another had cut a chamber of
Gibbons’ heart. The knife found in the storm drain was consistent
with the weapon used to cause these wounds, and DNA testing
revealed a match between Gibbons and the blood found on that
knife. High levels of alcohol and methamphetamine were in
Gibbons’ system at the time of his death.

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A criminalist who arrived to photograph the crime scene on the
morning the body was discovered noted that while there was a lot
of blood, it was not dispersed and there was no sign of a struggle.
It did not appear that Gibbons had made any significant attempt to
defend himself, given the lack of defensive wounds and the way in
which his body had collapsed on the floor.
Defendant’s blood was drawn at 5:30 p.m. on the afternoon
following the killing. Although there was no alcohol in defendant’s
system at that time, a licensed clinical toxicologist calculated that
in light of his height and weight, and assuming the liquor
consumption described by McNulty, his blood alcohol level near
the time of the killing could have been about 0.30 percent, or more
than three times the legal limit for driving.
Police officers requested several times that the Village Market
provide a copy of the surveillance video showing Gibbons’ assault
on defendant, but, as we discuss, no copy was provided and the
tape was overwritten after seven days.

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II. Procedural History
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Defendant was charged with one count of first degree murder with
a knife-use allegation and one count of first degree burglary. (Pen.
Code, § 187, 459, 12022, subd. (b)). The case proceeded to a trial
in which the jury was instructed on second degree murder and
voluntary manslaughter as lesser included offenses. The jury found
defendant guilty of first degree murder and burglary as charged and
found true the allegation that a knife had been used in the
commission of the murder. The court sentenced defendant to
prison for a term of 25 years to life plus one year.

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III. Trombetta Motion
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Before the trial began, defendant filed a Trombetta motion seeking
dismissal of the charges based on the failure of police to preserve
the surveillance video from the Village Market. (Trombetta, supra,
467 U.S. 479.) Defendant argued that the video was critical to his
defense because it tended to show that the charged homicide was
the product of provocation rather than premeditation, and that he

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was guilty of only second degree murder or voluntary
manslaughter.

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The surveillance video in question was a digital recording produced
on a computer rather than on a reel-to-reel or videotape that could
be readily removed from a recording machine. Sergeant Anderson
viewed the video in the store on the night of June 10, 2008, when
he responded to the report of Gibbons’ assault on defendant, but he
was not able to download the images that night. Anderson told one
of the store owners that he wanted a copy and asked that the video
be preserved. Officer McNelley also asked the store clerk, Sonia
Mendoza, to provide him with a copy, but Mendoza was unable to
do so.

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Sergeant Anderson returned to the Village Market on June 11 and
again requested a copy of the recording, to no avail. Officer
McNelley went by the market on following day and spoke to the
owner, reiterating the need to preserve the video. On June 23,
2008, another officer went to the Village Market and learned that
the recordings on the surveillance system were preserved for only
seven days and that the footage of the assault had been overwritten.
The store owner had originally thought the data would be stored for
up to 90 days. The hard drive of the computer was collected by
police on August 20, but the recording could not be recovered.

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The trial court denied the Trombetta motion, reasoning as follows:
(1) police do not have a duty to collect evidence, and this case
involves a failure to collect rather than a failure to preserve
evidence already collected; (2) the evidence had both inculpatory
and exculpatory value in the murder prosecution; (3) the defendant
could obtain comparable evidence because other witnesses had seen
the assault and viewed the tape and could testify about the same;
and (4) there was no bad faith on the part of the police, who made
efforts to obtain the video and wanted it for their own purposes
because the assault supplied a motive for murder. Defense counsel
renewed the motion midtrial, and it was again denied.

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People v. Keller, No. A124739, 2010 WL 3159027, at **1-4 (Cal. Ct. App. Aug.
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11, 2010). The California Court of Appeal found that the trial court did not err in
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denying petitioner’s Trombetta motion and affirmed the judgment of the trial
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court. See id. at *7.
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DISCUSSION
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A.

Standard of Review

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This court may entertain a petition for a writ of habeas corpus “in behalf
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of a person in custody pursuant to the judgment of a State court only on the
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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States.” 28 U.S.C. § 2254(a).

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The writ may not be granted with respect to any claim that was

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adjudicated on the merits in state court unless the state court’s adjudication of the

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claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented

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in the State court proceeding.” Id. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ

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if the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application’ clause,

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a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the Supreme] Court’s decisions but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because that court

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concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 411. “[A] federal habeas court

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making the ‘unreasonable application’ inquiry should ask whether the state

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court’s application of clearly established federal law was objectively

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unreasonable.” Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive

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authority” for purposes of determining whether a state court decision is an

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unreasonable application of Supreme Court precedent, only the Supreme Court’s

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holdings are binding on the state courts, and only those holdings need be

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“reasonably” applied. Id.

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B.

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Claim and Analysis
Petitioner claims the police violated their constitutional duty to preserve

material evidence under Trombetta when they failed to preserve the surveillance

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video from the Village Market, which had recorded his confrontation with

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Gibbons. Petition (“Pet.”) at 6. Petitioner contends that the video would have

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supported his claim that the killing was the product of provocation rather than

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premeditation or, alternatively, that he was so intoxicated at the time of the

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killing that he could not form the requisite intent, such that he was guilty of only

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second degree murder or voluntary manslaughter. Traverse (“Trav.”) at 5-6.

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The constitutional duty to preserve evidence is limited to material

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evidence, i.e., evidence whose exculpatory value was apparent before its

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destruction and that is of such nature that the defendant cannot obtain comparable

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evidence from other sources. California v. Trombetta, 467 U.S. 479, 489 (1984).

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In order to establish a due process violation for failure to preserve only

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potentially useful evidence, a petitioner must show bad faith on the part of the

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police. Illinois v. Fisher, 540 U.S. 544, 547-48 (2004); Arizona v. Youngblood,

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488 U.S. 51, 58 (1988).

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The California Court of Appeal rejected petitioner’s Trombetta claim on

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the merits. People v. Keller, 2010 WL 3159027, at *4. The court of appeal

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reasoned that: (1) the case involved a failure to collect rather than to preserve

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evidence, and there was no due process violation because there was no evidence

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that the police acted in bad faith in failing to collect the tape; (2) even if the

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destruction of the video could be attributed to the police, there was no Trombetta

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violation because (a) the video was not clearly exculpatory and (b) comparable

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evidence in the form of witness testimony was reasonably available; and (3) the

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video at most was only “potentially useful” evidence, and there was no due

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process violation because there was no evidence of bad faith on the part of the

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police. Id. at *4-6.

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Petitioner is not entitled to federal habeas relief on his Trombetta claim

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because the California Court of Appeal’s rejection of the claim was not contrary

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to, nor did it involve an unreasonable application of, clearly established Supreme

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Court precedent, nor was the decision based on an unreasonable determination of

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the facts. See 28 U.S.C. § 2254(d).

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Petitioner’s case involved a failure to collect evidence
The California Court of Appeal did not unreasonably determine

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that petitioner’s due process rights were not violated because the case involved a

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failure to collect rather than to preserve evidence and there was no indication that

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the police failed to collect the video in bad faith. See id.

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The duty to preserve material evidence under Trombetta is limited to

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evidence that has actually been gathered. 467 U.S. at 488-90. But although the

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police ordinarily have no duty to collect exculpatory evidence, a bad faith failure

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to collect exculpatory evidence may constitute a due process violation. See

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Miller v. Vasquez, 868 F.2d 1116, 1119-21 (9th Cir. 1989) (due process requires

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police to gather and collect evidence where police themselves by their conduct

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indicate that the evidence could form a basis for exoneration).

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Here, despite repeated efforts to collect the tape, the police never obtained

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the surveillance video or a copy of it. Although petitioner suggests that the

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police failed to preserve collected evidence because “the computer was

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voluntarily given to the police,” Trav. at 3-4, the record makes clear that the

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computer that once contained the video was handed over to the police after the

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relevant video footage had been overwritten. The surveillance video was erased

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while in the store owner’s possession. Thus the police never actually obtained

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the evidence at issue and their Trombetta duty was not triggered. Nor is there

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any indication of bad faith on the part of the police. That the police operated

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according to the store owner’s ultimately mistaken belief that the tape would be

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preserved for 90 days does not show a bad faith effort to prevent the defense

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from obtaining exculpatory evidence. Cf. Miller, 868 F.2d at 1119-20. After all,

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the police sought to collect the video because they believed it was inculpatory

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and would provide evidence of motive for murder.

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Under the circumstances, it simply cannot be said that the California Court

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of Appeal’s determination that the police did not violate petitioner’s due process

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rights by failing to gather the surveillance video from the market was objectively

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unreasonable. See Williams, 529 U.S. at 409.

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There was no Trombetta violation
The California Court of Appeal did not unreasonably determine

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that there was no Trombetta violation because, even if the destruction of the

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video could be attributed to the police, the video was not clearly exculpatory and

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comparable evidence in the form of witness testimony was reasonably available.

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See 28 U.S.C. § 2254(d).

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As noted earlier, the constitutional duty to preserve material evidence
requires that the evidence “must both (1) possess an exculpatory value that was

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apparent before the evidence was destroyed, and (2) be of such a nature that the

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defendant would be unable to obtain comparable evidence by other reasonably

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available means.” Trombetta, 467 U.S. at 489.

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It was not objectively unreasonable for the California Court of Appeal to

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determine that petitioner did not establish the first prong of Trombetta. Although

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the court recognized that the tape “did tend to show provocative conduct by the

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victim,” it reasonably found that it was not clearly exculpatory under Trombetta

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because the tape also was “highly inculpatory in that it . . . supplied a motive for

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the killing and strongly suggested premeditation.” People v. Keller, 2010 WL

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3159027, at *6 (citations omitted). Petitioner’s contention that the video would

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have shown that the charged homicide was a product of provocation rather than

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premeditation and “would have helped the jury gauge exactly how intoxicated

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petitioner was rough two to three hours before Gibbons was murdered,” Trav. at

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5, 8, does not compel a different conclusion. After all, the video captured only

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the assault that occurred hours before the murder, not the murder itself, and it is

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unclear how any depiction of petitioner’s intoxication during the assault would be

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exculpatory of his actions several hours later.

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Nor was it objectively unreasonable for the California Court of Appeal to

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determine that petitioner did not establish the second prong of Trombetta. The

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court explained that substantial comparable evidence was available by other

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means:

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The surveillance video captured an assault by Gibbons upon
defendant in which defendant did not respond in kind. Sonia
Mendoza, the clerk at the Village Market, personally witnessed the
assault and described it in her testimony. Sergeant Anderson,
though not a witness to the assault, had viewed the video and
testified in detail of its contents. Defendant was able to show
through these witnesses that he was the victim of a physical assault
by the victim on the night of the homicide, and was able to argue
from this evidence that provocation by the victim should reduce his
culpability.

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People v. Keller, 2010 WL 3159027, at *6.
Petitioner argues that these witnesses’ testimony is not comparable to the

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video because “it is in no way as demonstrative and powerful as the actual image

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of the decedent” attacking petitioner. Trav. at 7. He contends that the video

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would have shown “exactly how hard petitioner hit his head when he struck it on

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the glass that shattered in addition to showing how vicious[ly] and merciless[ly]

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Gibbon’s assaulted petitioner.” Id. And he adds that at trial Mendoza could not

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remember if petitioner immediately fell down after being hit and that Anderson

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was unable to tell if petitioner had lost consciousness. Id.

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The record shows that Mendoza testified that petitioner was punched with

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a closed fist and hit repeatedly when he was on the ground. 1 Rep. Tr. at 114,

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116. Sergeant Anderson testified that he observed Gibbons punch petitioner with

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a closed fist, causing petitioner to fall into a glass display case. Id. at 209.

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Anderson further testified that while petitioner was on the ground, Gibbons

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straddled petitioner and punched him in the head three to four times. Id. at 212-

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213. Officer McNelly and Mendoza testified to the injuries they observed on

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petitioner that night, and photographs of petitioner’s injuries were offered into

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evidence. Id. at 123-24.

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Under the circumstances, it was not objectively unreasonable for the state

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court to determine that these witnesses’ testimony constituted a comparable

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substitute for the surveillance video under Trombetta. By cross examining these

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witnesses, petitioner was able to present evidence that he was victim to an assault

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on the night of the murder and argue that this evidence of provocation should

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reduce his culpability. Moreover, the witness testimony included descriptions of

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the brutality of the assault that were “comparable” to the evidence that would

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have been provided by the surveillance video.

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3.

No due process violation for failure to preserve “potentially
useful” evidence

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The California Court of Appeal did not unreasonably determine that
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petitioner’s due process rights were not violated because the video was at most
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only “potentially useful” to petitioner’s defense and there was no evidence of bad
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faith on the part of the police. See 28 U.S.C. § 2254(d); Illinois v. Fisher, 540
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U.S. 544, 547-48 (2004) (due process violation for failure to preserve only
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potentially useful evidence requires bad faith on the part of the police).
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As noted earlier, the California Court of Appeal did not unreasonably
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determine that due to the “highly inculpatory” nature of the video, the recording
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was at most only “potentially useful” to petitioner’s defense. Nor did the court
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unreasonably determine that there was no indication that the police had acted in
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bad faith or made any purposeful effort to destroy of the surveillance video. The
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court explained:
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The officers made several requests for the video and everyone
involved appears to have been operating on the assumption that it
would not be erased for 90 days. That the store owner was wrong,
and that the video was automatically overwritten while still in the
store owner’s custody, does not suggest a purposeful effort by the
police to keep exculpatory evidence from the hands of the defense.
To the contrary, the police clearly wanted the store to preserve the
tape because the assault it depicted supplied a motive for murder.

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People v. Keller, 2010 WL 3159027, at *6. Perhaps the police were negligent in

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relying on the store owner’s assurances that the tape would be preserved for 90

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days, but this is not sufficient to show bad faith and establish a violation of due

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process in this case. See Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997)

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(negligent failure to preserve potentially useful evidence is not enough to

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establish bad faith and does not constitute a violation of due process).

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DENIED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

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petitioner has not demonstrated that “reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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The clerk shall enter judgment in favor of respondent and close the file.

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SO ORDERED.

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DATED:

Nov. 4, 2011
CHARLES R. BREYER
United States District Judge

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