Turner v. Baughman

Filing 15

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William H. Orrick on 11/22/2017. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 11/22/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 GIL EDWARD TURNER, Petitioner, 12 13 14 15 Case No. 16-cv-06495-WHO (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. DAVID BAUGHMAN, Respondent. 16 17 INTRODUCTION 18 As grounds for federal habeas relief, petitioner Gil Edward Turner alleges that 19 (1) the trial court violated his right to due process when it denied his motion to dismiss the 20 murder charge after the prosecution rested; (2) defense counsel rendered ineffective 21 assistance; and (3) there was cumulative error. None of these claims has merit. The 22 petition is DENIED. 23 24 BACKGROUND In 2011, Turner shot and killed Tony Reynolds in front of Turner’s house while in 25 view of Terry Amons, Turner’s stepfather, and Leland Harrison, their neighbor in the 26 Parchester Village neighborhood in Richmond. (Ans., Dkt. No. 13 (State Appellate 27 Opinion, People v. Turner, No. A141608, 2015 WL 5725013 (Cal. Ct. App. Sept. 30, 28 1 2015) (unpublished)) at 231.)1 Harrison testified that just after he had seen and said hello 2 to Reynolds, he saw a person (later identified as Turner) “with a hood on c[o]me out of the 3 driveway and just sho[o]t him.” (Id., Dkt. No. 13-1 at 88.) Harrison reported the shooting 4 and told the police that Turner blamed Reynolds for the death of Turner’s stepbrother, 5 Michael Amons, seven years prior. (Id., Dkt. No. 13 at 231-232.) Turner testified at trial that he had used cocaine and marijuana on the night before, 6 7 and had used cocaine on the day of, the shooting. (Id., Dkt. No. 13-5 at 8.) He testified 8 that on the day of the killing a friend told him that Reynolds was leaving the neighborhood 9 and advised Turner, “Don’t trip.” (Id. at 10.) Turner also testified that though he was armed when he approached Reynolds (Turner always carries a gun for protection), he did 11 United States District Court Northern District of California 10 not intend to shoot him. (Id. at 10.) He drew his gun when Reynolds moved in a way that 12 alarmed Turner. (Id. at 13.) The gun went off, he averred, during the subsequent struggle, 13 during which Reynolds grabbed the hand in which Turner was holding the gun. (Id. at 13- 14 14.) 15 On cross-examination, Turner was asked about a prior felony conviction for 16 robbery. When arrested for that crime, Turner told police that there had been a struggle for 17 the gun and that the robbery victim had gotten the gun away from him. (Id. at 18-19.) 18 Those were lies, he admitted at the Reynolds trial. (Id. at 19.) 19 Rap lyrics handwritten by Turner were found in his cell and presented at trial. The 20 lyrics referred to the Parchester neighborhood, drive-by shootings, showed support for “an 21 eye for an eye” justice, and declared hopes that his stepbrother Michael would rest in 22 peace. (Ans., Dkt. No. 13 at 233.) 23 A Contra Costa County jury convicted Turner of first degree murder and found true 24 two enhancement allegations. In consequence, Turner was sentenced to 75 years to life in 25 state prison. (Id. at 235.) His efforts to overturn his conviction in state court were 26 unsuccessful. This federal habeas petition followed. 27 28 1 The Court cites to the page numbers generated by the electronic filing system. 2 1 2 3 STANDARD OF REVIEW Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in 5 custody pursuant to the judgment of a State court only on the ground that he is in custody 6 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 7 § 2254(a). The petition may not be granted with respect to any claim that was adjudicated 8 on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted 9 in a decision that was contrary to, or involved an unreasonable application of, clearly 10 established Federal law, as determined by the Supreme Court of the United States; or 11 United States District Court Northern District of California 4 (2) resulted in a decision that was based on an unreasonable determination of the facts in 12 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 13 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 14 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 15 of law or if the state court decides a case differently than [the] Court has on a set of 16 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 17 (2000). 18 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 19 writ if the state court identifies the correct governing legal principle from [the] Court’s 20 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 21 413. “[A] federal habeas court may not issue the writ simply because that court concludes 22 in its independent judgment that the relevant state court decision applied clearly 23 established federal law erroneously or incorrectly. Rather, that application must also be 24 unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” 25 inquiry should ask whether the state court’s application of clearly established federal law 26 was “objectively unreasonable.” Id. at 409. 27 28 3 1 2 3 DISCUSSION I. Denial of Acquittal Motion At the close of the prosecution’s case, Turner moved for a judgment of acquittal on 4 the first degree murder charge on grounds that there was insufficient evidence of 5 premeditation or planning. (Ans., Dkt. No. 13 at 235.) The trial court denied the motion 6 because the jury could reasonably conclude “there was premeditation and deliberation by 7 the . . . way in which the crime was committed, the manner in which the victim was 8 approached, the fact that the victim was unarmed . . . and that it appeared that he was in a 9 sense ambushed.” (Id.) Turner alleges that the trial court violated his right to due process 10 United States District Court Northern District of California 11 when it denied his motion. This claim was rejected on appeal. The state appellate court found sufficient 12 evidence premeditation and deliberation in the record: Turner blamed Reynolds for the 13 death of his stepbrother; Turner’s girlfriend testified that Reynolds’s name came up every 14 time Michael’s death was discussed; and Harrison, a longtime resident of Parchester 15 Village, “watched Turner walk within a few feet of Reynolds, and shoot him four times.” 16 (Ans., Dkt. No. 13 at 237.) 17 I will construe this claim as a challenge to the sufficiency of the evidence. 18 When reviewing a state court’s conviction for sufficiency of the evidence, a federal court 19 must determine whether, “after viewing the evidence in the light most favorable to the 20 prosecution, any rational trier of fact could have found the essential elements of the crime 21 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no 22 rational trier of fact could have found proof of guilt beyond a reasonable doubt may the 23 writ be granted. Id. at 324. “[T]he only question under Jackson is whether [the jury’s] 24 finding was so insupportable as to fall below the threshold of bare rationality.” Coleman v. 25 Johnson, 566 U.S. 650, 656 (2012). In addition to this highly deferential standard, a 26 federal court must accord “considerable deference” to a state court’s determination that 27 there was sufficient evidence under Jackson. Id. 28 4 In California, first degree murder is the premeditated and deliberate unlawful killing 1 2 of another with malice aforethought. Cal. Penal Code §§ 187 and 189. A premeditated 3 killing under California law is a “killing [that] was the result of preexisting reflection and 4 weighing of considerations rather than mere unconsidered or rash impulse.” People v. 5 Prince, 40 Cal. 4th 1179, 1253 (2007). Planning activity, motive and the manner of the 6 killing are significant, though not the exclusive, factors to consider when determining 7 whether the killing was a result of preexisting reflection. Id. Under these legal principles, Turner’s claim cannot succeed. The state appellate 8 9 court reasonably determined that a rational trier of fact could have found the elements of premeditation and deliberation true beyond a reasonable doubt. The record shows that the 11 United States District Court Northern District of California 10 prosecution presented evidence that Turner had a gun with him when he approached 12 Reynolds; he had a long-standing motive to kill Reynolds; his family and friend had urged 13 him to stay calm even though Reynolds was nearby; and Harrison testified that he saw 14 Turner, hooded, walk up to Reynolds, shoot him more or less immediately, and then 15 behave in a cool and collected manner, rather than a person aggravated by a sudden 16 quarrel. On this record, neither the trial court’s denial of the acquittal motion (nor the jury’s 17 18 verdict) was so insupportable as to fall below the bare threshold of rationality. Coleman, 19 556 U.S. at 656. The state appellate court’s rejection of this claim was reasonable and is 20 entitled to AEDPA deference. This claim is DENIED. 21 II. Assistance of Counsel 22 Turner alleges that his defense counsel rendered ineffective assistance by (A) 23 calling a witness who was detrimental to his defense; (B) failing to object to the admission 24 of rap lyrics; and (C) failing to object to evidence of gang affiliation. 25 To make a federal claim of ineffectiveness of counsel, the petitioner must show that 26 the counsel’s performance fell below an objective standard of reasonableness and that, but 27 for that deficiency, the outcome would have been different. Strickland v. Washington, 466 28 U.S. 668, 687-88 (1984). The relevant analysis is whether there is any reasonable 5 1 argument made to show that counsel satisfied the Strickland standard. Harrington v. 2 Richter, 562 U.S. 86, 105 (2011). In the review, the court must be highly deferential and 3 the presumption is that counsel had sound trial strategy. Strickland, 466 U.S. at 689. A 4 tactical decision, even if in hindsight the decision was not the best tactical choice, is not 5 considered ineffectiveness of counsel. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 6 1984). An attorney’s tactical decision to call a witness that has disparaging information 7 about the client is not ineffective counsel, as long as the benefit could be a tactical reason 8 that outweighs the danger of calling the witness. Soto v. Ryan, 760 F.3d 947, 979-80 (9th 9 Cir. 2014). A. 11 United States District Court Northern District of California 10 Turner contends that trial counsel rendered ineffective assistance by calling Amons Calling a Detrimental Witness 12 to testify. Not only did Amons’s testimony provide evidence of premeditation, thereby 13 aiding the prosecution, but defense counsel compounded his mistake by failing to request a 14 jury instruction (CALCRIM No. 358) that directs the jury to treat out-of-court statements 15 with caution. (Pet., Dkt. No. 1 at 5 and 11.) 16 17 i. Calling Amons to Testify Defense counsel called Amons to the stand. He testified that on the afternoon of the 18 shooting, he was in his front yard with Turner. Reynolds walked up to them, greeted 19 Amons, and said to Turner, “Oh, hey, Little Killer,” which was Turner’s nickname. Turner 20 shouted “That was my brother,” and fired his gun twice before Reynolds attempted to grab 21 the gun. A struggle ensued during which two more shots were fired into Reynolds. (Ans., 22 Dkt. No. 13 at 233-234.) 23 Turner contends that “That was my brother” provided premeditation evidence in 24 favor of the prosecution. Counsel’s calling Amons to testify therefore constituted 25 ineffective assistance, according to petitioner. (Pet., Dkt. No. 1 at 5.) 26 Amons was called, it appears, to bolster Turner’s self-defense claim, that his fear of 27 28 6 1 Reynolds was reasonable. (Ans., Dkt No. 13 at 347.)2 Counsel apparently felt that the 2 benefits of such testimony outweighed the risk that such testimony could also be evidence 3 of a “revenge motive.” (Id.) Amons also testified that before shooting Reynolds, Turner 4 seemed like he had taken “zombie pills” because he was walking “with his head down . . . 5 he was going straight ahead.” (Id. at 177.) 6 This claim was not raised on direct appeal, but rather only on collateral review. 7 When presented with a state court decision that is unaccompanied by a rationale for its 8 conclusions, a federal court must conduct an independent review of the record to determine 9 whether the state court decision is objectively unreasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not de novo. “[W]here a state court’s 11 United States District Court Northern District of California 10 decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be 12 met by showing there was no reasonable basis for the state court to deny relief.” Richter, 13 562 U.S. at 98. Habeas relief is not warranted. The evidence of Turner’s guilt, and that the 14 15 homicide was the result of premeditation and deliberation, was so strong that even if 16 counsel’s performance was deficient, there was no prejudice. Turner had a motive to kill 17 Reynolds, whom he blamed for the murder of his stepbrother, Michael Amons. His 18 girlfriend said Reynolds’s name came up every time Michael’s death was discussed. He 19 testified that on the day of the killing a friend told him that Reynolds was leaving and 20 advised Turner “Don’t trip.” Harrison, who knew both men and had lived in Parchester 21 Village for 64 years, saw Turner walk up to Reynolds and shoot him at close range, after 22 which Turner calmly looked at Harrison and walked into his house. Harrison testified that 23 Turner blamed Reynolds for Michael’s death. And after the killing, Turner “acted 24 normally,” and he wrote rap lyrics that mentioned Michael Amons and referred to Turner’s 25 belief in “eye for an eye” justice. (Ans., Dkt. No. 13 at 234, 237, and 238.) 26 27 28 2 Trial counsel’s stated reasons come to the Court through a declaration by habeas counsel (Solomon Wallack) who spoke to trial counsel (Brooks Osborne) about his reasons for calling Amons to testify. (Ans., Dkt. No. 13 at 347.) 7 1 Upon an independent review of the record, I conclude that the state court’s rejection 2 of this claim was not objectively unreasonable. The state court’s decision is entitled to 3 AEDPA deference and this claim is DENIED. 4 5 ii. Failing to Ask for Jury Instruction Turner also claims that defense counsel should have asked for a cautionary jury 6 instruction regarding Amons’s testimony. Counsel should have asked for CALCRIM No. 7 358 (“Evidence of Defendant’s Statements”), which “instructs the jury to ‘[c]onsider with 8 caution’ any unrecorded statement made by the defendant tending to show his or her 9 guilt.” (Ans., Dkt. No. 13 at 238.) 10 This claim was rejected on appeal. Any error was harmless. Turner, who testified United States District Court Northern District of California 11 at trial, did not deny making the statements Amons testified Turner made; there was “no 12 ‘conflict in the evidence about the exact words used, their meaning, or whether the 13 admissions were repeated accurately’;” and, other instructions adequately informed the 14 jury how to evaluate the credibility of witness statements. Also, there was no prejudice. 15 The evidence of guilt was strong, as detailed above. (Id. at 239-240.) 16 Habeas relief is not warranted. The state appellate court reasonably determined that 17 the lack of such an instruction did not deny Turner due process. He admitted to making 18 the statements. Other instructions cautioned the jury to take care in assessing credibility. 19 The state court’s rejection of this claim is entitled to AEDPA deference. This claim is 20 DENIED. 21 B. 22 Turner alleges that counsel rendered ineffective assistance when he did not object to Rap Lyrics 23 the admission of rap lyrics Turner wrote. (Pet., Dkt. No. 1 at 5.) The lyrics were 24 prejudicial, he contends, because they discussed crimes, glorified violence, and spoke 25 approvingly about a gang lifestyle and gang activities. He believes that they unjustly led 26 the jury to assume that he had criminal inclinations. (Id. at 28-29.) Had counsel objected, 27 the lyrics would have been excluded. 28 This claim was rejected on appeal in a summary fashion. “Because it is possible 8 1 Turner’s trial counsel had a rational tactical ground for not objecting to the rap lyrics, 2 Turner’s claim of ineffective assistance of counsel fails.” (Ans., Dkt. No. 13 at 244.) 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 The state appellate court excerpted the lyrics as follows: It’s a lot a niggas in here that ain’t solid at all/Speck behind yo back my nigga dat ain’t gangsta at all/On da real, dats something I expeck from a broad/whoever raised u, I swer they did a taireable job/cause u’s a nurd and nall you ain’t wit da shit/u be frontin’, you ain’t never sent a bitch/Look in his eyes he wasn’t bulid for this shit/the stories is lies, fiction, urben books can’t ova look da truth I’m wit da shit/on da real, I ain’t tryna bring back da rich/just Parchester dat’ s wat I do it for/Animal on da real. I love you bro/Yhr In da billin and we shine’n Bro/Tay goin crazy Dip he da rowist Tho/Swich up never I really love all my bros and I’m rock’n untill the day the lord calls me home[.] .... It ain’t to many niggas like me. I’m just keep’n it real/I hear niggas talk’n but niggas aint squeez’n they steal/I’m locked up and niggas still aint squeez’n for gil/got dame, I though niggas was rock’n fo real/Wat happened to them niggas they still on the shelf/they old school trophys collet’n dust and nothing else/I guess it’s really true wat they say, outa site outa mind/that aint how I was raised, I was raised an eye for an eye/Slide, you know I do dat/Swich up, fuck nall ain’t no way I’m a do dat/I don’t fuck wit master splenters them niggas IS surer rats/and you can ask gong, he’a tell u that’s a fact I still rock wit a gleeko, yea I’m from da gAnimal rest in peace bro I’m play’n for keeps/I’m really livin this shit that you niggas rappin about/Just check my street crag I’m solid wit out a doubt. (Ans., Dkt. No. 13 at 232-233.) The meaning of certain lyrics was explained at trial by a police officer from 21 Richmond. “Animal” was Michael Amons’s nickname. (Id. at 231.) “[S]queez’n they 22 steel” means “to fire your gun,” and “gleeko” is slang for a Glock pistol. (Id. at 233.) “Da 23 rich” refers to Richmond, and “Parchester,” of course, to Parchester Village, where 24 Reynolds was shot. When Turner was asked on cross-examination what certain words in 25 the lyrics meant, he responded, “I just write” or “I don’t know.” (Ans., Dkt. No. 13-5 at 26 35-38.) 27 28 Habeas relief is not warranted. Any objection would likely have been denied. The lyrics were of great evidentiary value, highly relevant, and were something close to an 9 1 uncoerced confession. They were undoubtedly Turner’s work; referred to his belief in 2 retributive justice (“I was raised an eye for an eye”); fondly mentioned his stepbrother 3 (“gAnimal rest in peace bro”); spoke of guns and Parchester; and contained Turner’s 4 admission that his lifestyle was no mere pose (“I’m play’n for keeps/I’m really livin this 5 shit that you niggas rappin about/Just check my street crag I’m solid wit out a doubt.”). 6 Counsel likely made no objection because of the obviously high probative value of the 7 evidence. It is both reasonable and not prejudicial for defense counsel to forgo a meritless 8 objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). Also, the lyrics 9 confirmed facts already known to the jury through the testimony of witnesses. 10 Furthermore, even if counsel’s performance was deficient, there was no prejudice. United States District Court Northern District of California 11 Eyewitnesses testified about the shooting and the tense history between Turner and 12 Reynolds. 13 14 The state court’s rejection of this claim was reasonable and is therefore entitled to AEDPA deference. This claim is DENIED. 15 C. 16 Turner contends that trial counsel provided ineffective assistance in failing to object 17 when the prosecutor introduced evidence that he had associated with gang members. Such 18 evidence was prejudicial since the shooting had nothing to do with gangs and there was no 19 gang enhancement charge brought against Turner. (Pet., Dkt. No. 1 at 23.) Gang Affiliation Evidence 20 While cross-examining Amons, the prosecutor asked if Turner recently had 21 associated with gang members in the community. (Ans., Dkt. No. 13 at 240-241.) 22 Defense counsel objected on the grounds of relevance and foundation, but did not object 23 under Evidence Code section 352 (that the evidence was more prejudicial than probative). 24 (Id.) The trial court overruled the objection when the prosecutor explained that the 25 question went to Officer Purcell’s opinion that Turner was not a gang member. (Id. at 26 240.) Amons answered that Turner had been “hanging around” known gang members 27 around the time of the shooting. (Id. at 241.) 28 10 This claim was rejected on appeal. Even if the trial court erred by allowing the 1 2 testimony regarding gang affiliation, the error was harmless because the focus of the trial 3 was the shooting, not gang affiliation, and the evidence of his guilt was strong. (Id. at 4 242.) Habeas relief is not warranted. First, a petitioner’s due process rights concerning 5 6 the admission of propensity or character evidence is not clearly established for purposes of 7 review under AEDPA, the Supreme Court having reserved this issue as an “open 8 question.” Alberni v. McDaniel, 458 F.3d 860, 866–67 (9th Cir. 2006). Second, even if 9 the evidence was prejudicial, the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation 11 United States District Court Northern District of California 10 sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 12 (9th Cir. 2009). Finally, even if relief is not barred by Alberni and Holley, no prejudice 13 has been shown. The gang evidence was a small matter in light of the very strong 14 eyewitness testimony that unequivocally established that Turner approached Reynolds and 15 shot him. The state court’s rejection of this claim was reasonable and is entitled to AEDPA 16 17 deference. This claim is DENIED. 18 III. Cumulative Error 19 Turner claims that even if the errors individually do not justify relief, the 20 cumulative effect of all errors resulted in a fundamentally unfair trial. This claim was 21 rejected on appeal. (Ans., Dkt. No. 13 at 244.) 22 In some cases, although no single trial error is sufficiently prejudicial to warrant 23 reversal, the cumulative effect of several errors may still prejudice a defendant so much 24 that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th 25 Cir. 2003). Where there is no single constitutional error existing, nothing can accumulate 26 to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th 27 Cir. 2002) (overruled on other grounds). 28 11 1 Habeas relief is not warranted because Turner has not shown any errors. There can 2 be no cumulative error. The state court’s rejection of Turner’s claim was reasonable and is 3 entitled to AEDPA deference. This claim is DENIED. 4 CONCLUSION 5 The state court’s adjudication of Turner’s claims did not result in decisions that 6 were contrary to, or involved an unreasonable application of, clearly established federal 7 law, nor did they result in decisions that were based on an unreasonable determination of 8 the facts in light of the evidence presented in the state court proceeding. Accordingly, the 9 petition is DENIED. 10 A certificate of appealability will not issue. Reasonable jurists would not “find the United States District Court Northern District of California 11 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 12 McDaniel, 529 U.S. 473, 484 (2000). Turner may seek a certificate of appealability from 13 the Ninth Circuit. 14 The Clerk shall enter judgment in favor of respondent and close the file. 15 IT IS SO ORDERED. 16 Dated: November 22, 2017 17 18 William H. Orrick United States District Judge 19 20 21 22 23 24 25 26 27 28 12

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