Opinion
In re WALTER JACKSON On Habeas Corpus
A120092, A122982, A124302 California Court of Appeal, First District, Second Division May 27, 2009NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-051803-5
Haerle, J.
I. INTRODUCTION
Defendant and appellant Walter Jackson was convicted of first degree murder (Pen. Code, § 187) and sentenced to an indeterminate term of 25 years to life. On appeal, he argues that the trial court erred in failing to instruct the jury on implied malice second degree murder. In two petitions for writs of habeas corpus, which we consider along with the appeal, defendant contends he was denied effective assistance of counsel at his trial. We disagree. We affirm his conviction and deny the petitions.
All further statutory references are to the Penal Code, unless otherwise indicated.
In an earlier trial, defendant was convicted of arson arising out of the same incident. The trial court declared a mistrial as to the murder charge. We affirmed this conviction in case No. A116335. (People v. Jackson (June 30, 2008, A116335) [nonpub.opn.].)
II. FACTUAL AND PROCEDURAL BACKGROUND
The body of the victim in this case, 82-year-old Cora Morgan, was found by firefighters who had come to her apartment on December 29, 2004, to put out a fire.
On December 30, 2004, an autopsy was performed on the victim. She was dressed in a nightgown and a sweatshirt and had burn injuries on the outside of her body and blood in the mouth and nose area.
The victim did not, however, die of smoke inhalation. She was asphyxiated before the fire ever occurred. Her “upper airway was obstructed by... wadded material at the back of her throat....” In addition, she had injuries to her neck and throat that were “consistent with manual strangulation.” Either of these could have killed her. There were also injuries to the front of her lips which indicated that “she could have had a hand held over her mouth as well.”
The victim sustained other injuries before she died. She was bruised on the front left shoulder, which was evident from an internal examination. The victim also “had an area of bleeding under the scalp at the back of the head.” There were also “tears to the mucus membrane lining the mouth... and a small amount of bleeding” which could have been the result of the “lips being pushed against teeth, a blow to the mouth... being struck in the mouth or perhaps a combination of the two.” The victim also had a “slight fracture between the fourth and fifth spinal segments of her neck” which was not related to the asphyxiation but, rather, “is something that you could see from a number of circumstances, the individual perhaps taking a fall and causing a crack to occur there.”
The fire in the two story apartment was the result of three separate fires, each set intentionally -- two in upstairs bedrooms by burning candles and one downstairs in the kitchen. The victim’s body was found downstairs, in the kitchen, where the worst of the fire damage occurred.
When they found the body, firefighters notified Walnut Creek police officer Carol Burroughs, who was on the scene to provide traffic control for the firefighters. Burroughs learned that earlier that evening a man had inquired about the person inside the apartment. This man, accompanied by a woman, approached Burroughs shortly after she learned of the victim’s death. Burroughs identified the man as defendant. The woman with defendant was the victim’s daughter and defendant‘s wife, Pam Jackson. Burroughs told Pam Jackson that her mother had died in the fire. Pam Jackson was very upset and fell to the ground. Defendant comforted her.
It was raining and Burroughs offered to let defendant and Pam Jackson sit in her patrol car. As Burroughs was accompanying defendant and Pam Jackson to her car, defendant “made a comment... that the victim was always angry at him and evidently was kicking him out of the apartment.”
Randy Dickey, a police officer for the City of Walnut Creek was assigned to lead the investigation into the victim’s death. Dickey interviewed defendant at the police station at around midnight the night of the victim’s death. Another officer spoke with Pamela Jackson. Although they were indoors, defendant kept his parka on, zipped up to the neck. He also kept his hat on. Defendant told Dickey he wasn’t at the house when the fire started. He claimed not to know how the fire started. He described the victim, who was his mother-in-law, as a very healthy woman. Defendant said he had a strained relationship with the victim, that he tried to please her, but she was not very flexible to his needs. The victim had just told him that he needed to move out of the apartment.
Defendant told Dickey he suspected the victim’s death had not been an accident. “[H]e said that he had received this mysterious letter from someone in his past that said that “You’ll be blamed” and “Remember Beasley.” During this interview, defendant never took his jacket off although Dickey asked him several times if he would do so. At one point, Dickey asked defendant if he could photograph defendant. Defendant allowed Dickey to take one photograph, but would not unzip his jacket or take it off.
Defendant and Pamela Jackson were taken to a hotel at around 3:00 or 4:00 that morning. Dickey learned later that morning that the victim’s death was a homicide. Dickey reinterviewed defendant. The interview was videotaped. Dickey told defendant that the victim had been murdered. He did not give defendant any other details about the murder. He also told defendant that the fire in the apartment was arson.
Defendant repeated his original statement about what he had been doing the day of the victim’s death. Defendant then indicated he wanted to speak to Pamela Jackson. Dickey thought Jackson “knew what the truth was, and she wanted to convince [defendant] to tell us the truth about what had happened to [the victim].”
Jackson asked Dickey to remain in the room during her conversation with defendant. Jackson asked defendant to “tell her the truth.” Defendant leaned forward and whispered in her ear. Jackson “started to cry and said that she could have peace now and thanked him for telling her what happened.” Dickey heard defendant say “She kept coming at me. She kept coming at me.” Defendant also gestured with his arm “like he was trying to get somebody away or strike somebody with an elbow.” At some point, defendant also mentioned something about a knife and that “she just wouldn’t let... him go.”
Dickey did not hear all of the conversation between Jackson and defendant because defendant was whispering to his wife. Defendant told his wife not to tell anyone what he had said.
Dickey observed defendant’s arms during this interview. He noticed “some semicircular gouges” on his “inner elbow, inner arm area” on both arms. “There appeared to be fingernail gouges from somebody grabbing an arm.” Defendant explained these injuries by saying that he had climbed over a fence to try to get into the apartment.
Dickey asked defendant how the victim had died and defendant told him “‘[s]he was strangled.’” When Dickey asked him where defendant strangled the victim, defendant “backs away and said he wasn’t involved and he didn’t do anything... and ultimately that he didn’t want to talk to us anymore about it.” Defendant was arrested and transported to jail.
A Sergeant Edwards interviewed defendant again after his arrest, while Dickey monitored the interview from the room next door. The interview was videotaped. During this interview, defendant admitted involvement in the victim’s death. Defendant told Edwards the victim “had approached him at the top of the stairs, and that he had made a motion back which knocked her down the stairs.” “[H]e dragged her on a rug into the kitchen, and then strangled her and forced a wad of dinner napkins, holiday napkins, down her throat.” He also said the victim wasn’t dead so he “cut off a cord from an electrical toaster that was there in the kitchen and used the toaster to tie around her neck. And he did this at least two -- I think three times, and each time when he released the cord, he saw some blood bubbles come out of her nose. And he thought that she was still alive, so he reapplied the electrical cord to finish the job, and then ultimately the napkins.” The cord was never found. Defendant explained that the victim was still alive after the fall down the stairs, and that he strangled her because he felt he would be blamed for the fall and “he did not want to go back to prison.” Defendant set the fire because “he wanted to cover it up so it made it look like he wasn’t there.”
Defendant was returned to jail. That night, he spoke to Walnut Creek Police Officer Vevera. Vevera, who had listened to the conversation between defendant and his wife, told defendant he’d heard him admit that he had elbowed the victim, “that she started bleeding and that he panicked.” Defendant said, “Oh you must really have heard that then.”
Walnut Creek Police Sergeant Edwards spoke to defendant shortly after defendant had been informed of the victim’s death. Defendant asked Edwards if he suspected “foul play” and told him that he (defendant) had beat somebody up several years earlier and had received, three months before the victim’s death, a threatening letter to the effect that defendant was “going to be blamed for this.” Defendant also referred to the victim as a “bitch and a nasty woman.” Edwards asked defendant if he suspected anyone of killing the victim, and defendant said he should check into his wife’s “associates.” At some point during the investigation, Edwards confirmed that Pamela Jackson was working at the time the fire occurred.
Defendant was interviewed a third time. This interview was conducted by Edwards and took place on January 3, 2005. Defendant admitted to Edwards that he was “the sole responsible” for the victim’s death. This interview was videotaped and, in the interview, defendant contradicted a statement he’d made earlier to the effect that the victim had pulled a knife on him. Defendant told Edwards that the victim had fallen down the stairs. She wasn’t badly injured. Defendant said he “panicked” because “he was afraid he was going to go to jail for the rest of his life.” He thought about calling 911 after the victim fell down the stairs, but instead “dragged her away from the door.”
The jury was shown a videotape of excerpts from the January 3, 2005, interview. In these excerpts, defendant admitted that he dragged the victim into the kitchen after she fell down the stairs. He strangled her with a cord. Not sure if the victim was dead, defendant put napkins in defendant’s mouth. He put blankets around her and then tried to put them in the stove so her body would burn.
At trial, defendant admitted to setting the fire, but testified that he had lied in his earlier confessions to killing the victim. He stated that his mother-in-law did not “have not one mark... bruise on her neck, period, that was made from a human being while she was alive.” Defendant testified that “I hit her [the victim’s] arms and throw her over a little bit.... [¶] We were at the top of the stairs. She swung. Something happened that caused her to go back against the wall and do – kind of grab her chest and she went down the stairs. [¶] That’s what happened. That’s the reality of it. [¶] And the other reality of it... is that I was completely not in my right state of mind at this interview. I was – I wasn’t in my right state of mind. I wasn’t because I wanted to just convict myself. [¶] But I was also on suicide watch. I was on suicide watch. I believe I had even made a news – I had made a noose, and I was going to put it around my neck and tie it to the – tie it to the cell, tie it to the bars in the unit and jump off the tier and break my own neck. [¶] That was just before this.... People arrived and pulled me into the room and started doing the interview with me. That’s where my mind was at. [¶] So when I got in that room, I couldn’t physically kill myself, but I was doing everything I could emotionally, psychological and verbally to kill myself.”
Defendant was convicted of first degree murder. He was sentenced to state prison for the indeterminate term of 25 years to life, to be served consecutively with a previously imposed five-year term for arson. This timely appeal followed.
III. DISCUSSION
A. Implied Malice Murder Jury Instruction
Defendant argues that the trial court erred because it did not instruct the jury on an implied malice theory of second degree murder. We disagree.
The trial court gave a series of instructions regarding murder. It gave a general definition of murder, pursuant to CALJIC No. 8.10, a general definition of malice, which specifically described both express and implied malice, pursuant to CALJIC No. 8.11, a definition of first degree murder pursuant to CALJIC No. 8.20, and a definition of second degree murder, pursuant to CALJIC No. 8.30. The trial court apparently intended to, but did not, give CALJIC No. 8.31, which authorizes a finding of second degree murder when a defendant acts with implied malice. Defendant contends that the failure to give CALJIC No. 8.31 was in error because this instruction makes clear that implied malice murder constitutes second degree murder. (People v. Catlin (2001) 26 Cal.4th 81, 149 [“implied malice murder normally constitutes only murder in the second degree”].)
Defendant argues that if the jury found that the murder was committed with implied malice, it would not have known that such a finding would support only a second degree murder conviction. Defendant further contends that the omission of CALJIC No. 8.31 made it reasonably likely that a juror would conclude that implied malice murder was first degree murder. We disagree.
The People point out that defendant did not object to the court’s failure to give CALJIC No. 8.31. Defendant’s claim has, therefore, been waived. (People v. Andrews (1989) 49 Cal.3d 200, 218, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.) Even if the claim had been preserved, however, we would nevertheless reject it on the merits.
We consider the instructions as a whole, and find error only if we conclude there is a “reasonable likelihood that the omission would confuse the jury or relieve the prosecution of any of its burden of proof....” (People v. Catlin, supra, 26 Cal.4th at p. 151.) The jury convicted defendant of first degree murder after being properly instructed on the required elements of first degree murder. The instructions made clear that the jury could find first degree murder only upon a finding of express malice. The instructions also clearly stated that, in order to find first degree murder, the jury was required to find premeditation. Under the instructions as a whole, then, there was no reasonable likelihood that the jury could conclude, upon finding implied malice, that the defendant was guilty of first degree murder. We reject, therefore, defendant’s suggestion that the jury, although properly instructed on the elements of first degree murder, might nevertheless have concluded that an implied malice finding would somehow translate into a first degree murder conviction.
Even if the omission of CALJIC No. 8.31 was error, any error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Defendant confessed to the murder several times. He related how, after the victim was pushed or fell down a flight of stairs, he strangled her with a cord, and then, to be certain she was dead, pushed napkins down her throat. He explained that he killed the victim because he was afraid he would have to return to jail because she had been injured during their scuffle. The actions defendant described were, without question, premeditated and the result of express malice, that is “manifested by an intention unlawfully to kill a human being.” Given the overwhelming evidence in support of a first degree murder conviction, it is clear beyond a reasonable doubt that any error did not contribute to the verdict.
B. Defendant’s Habeas Petitions
In his petitions for writs of habeas corpus, defendant contends he received ineffective assistance of counsel from his trial counsel. He argues that his trial counsel failed to put on evidence that would have established that the victim did not die of strangulation but, rather, choked to death on “ground beef, mushroom, green leafy material and a clear substance[s].”
“Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.” (People v. Duvall (1995) 9 Cal.4th 464, 474.) If the petitioner fails to allege facts that, if true, would entitle him to relief, no prima facie case has been stated and the petition may be summarily denied. (Id. at pp. 474-475.)
Because defendant’s claim is made pursuant to a habeas petition, our review is not confined to the appellate record. (See, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 218-219; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1438.)
Defendant provides us with a one-page Report of Laboratory Examination performed by the Criminalistics Laboratory of the Contra Costa County Sheriff’s Office. The report, which was requested by Dr. G. Reiber, examined a clot sample taken from the victim. The report found the following “The contents of the tube labeled ‘airway material,’ Item 2-02, were examined visually and with low-power microscopy. The majority of the material was composed of a brownish sludge that tested positive with a chemical presumptive test for blood. The material appeared to be coagulated blood. Several apparent food particles were isolated from within the clot. The particles appeared to be pieces of meat, green leafy material, a small piece of mushroom, and a clear substance. The particles were collected separately as Item 2-02a, but were not analyzed further at this time.” Defendant reasons that this lab report suggests that he did not murder the victim, but that she choked to death on food particles. Counsel’s failure to offer this report into evidence is the basis of his ineffective assistance of counsel claim. Defendant also filed a second habeas petition, entitled “Supplement to Amended Habeas Corpus/Oral Argument.” In this petition, defendant contends that counsel failed to introduce into evidence certain “medical reports” “showing the only way to have saved the victems [sic] life was to open up the chest as shown on page 11 under traumatic pulmonary injury and as injury #6 also determined on the autopsy report.”
In his memorandum of points and authorities in support of this petition, defendant reiterates his argument that counsel was ineffective in failing to present evidence from the Criminalistic Laboratory Report. He also states that on November 21, 2007, that counsel explained this failure as follows: “[b]ecause the defendant did not pay him a few million dollars to represent him, he did not have [to] do what his client asked him [to] do at trial....”
Defendant further argues that Dr. Reiber’s testimony about the cause of the victim’s death hid “quart of blood missing from the lungs”; “food fond [sic] in the trachea. Wind-pipe”; “pulominary [sic] condestion [sic] and edmea [sic] found by dr. Darly England. But denied as existing by Dr. Reiber in his cross-examination testimony....”
Defendant has failed to allege a prima facie case entitling him to relief. Under Strickland v. Washington (1984) 466 U.S. 668, “the inquiry into an ineffectiveness of counsel claim involves two prongs, first to determine if counsel failed to give reasonably effective assistance and second, to determine if it is reasonably probable that a different outcome would have resulted had the attorney acted competently.” (People v. Scaffidi (1992) 11 Cal.App.4th 145, 151, fn. 2.)
Counsel’s decision “[w]hether to call certain witnesses is... a matter of trial tactics, unless the decision results from [defense counsel’s] unreasonable failure to investigate.” (People v. Bolin (1998) 18 Cal.4th 297, 334.) Defendant must show more than simply that counsel failed to present particular evidence. (People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) For example, in People v. Knight (1987) 194 Cal.App.3d 337, 345, the court observed that the “choice of which, and how many, potential witnesses to interview or call to trial is precisely the type of choice which should not be subject to review by an appellate court.”
In order to establish an ineffective assistance of counsel claim, defendant is required to “establish the nature and relevance of the evidence that counsel failed to present or discover..... [I]t must also be shown that the omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.” (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
In evaluating a claim that defense counsel should have presented particular evidence, “[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689.)
“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” (Strickland v. Washington, supra, 466 U.S. at pp. 690-691.)
The facts alleged in support of defendant’s petition do not show that defendant’s trial counsel's failure to present evidence of the material described in defendant’s habeas petition was inexcusable. The laboratory report to which defendant refers does not suggest in any way that the food particles discovered in the airway material led to the victim’s death. Similarly, the report defendant refers to in his second habeas petition (a reports he summarizes but does not provide us with) does not appear to even so much as suggest that the victim’s death was accidental. Defendant has failed to show that his trial counsel’s decision not to introduce these reports into evidence was anything other than a reasonable tactical decision. These reports were of no assistance in showing that the victim died accidentally, as defendant suggests.
Defendant also speculates that his trial attorney would have behaved differently had he (defendant) paid him more. However, he does not support this argument with any record citation and the statement he alleges is contained in the record of the November 21, 2007, sentencing hearing does not appear to have ever been made.
Defendant’s other argument regarding inconsistencies and omissions in Dr. Reiber’s testimony does not establish ineffective assistance of counsel. Dr. Reiber was cross-examined by counsel, and defendant has not shown any way in which that cross-examination was deficient.
Finally, even if defendant had alleged facts establishing deficient performance, he has not carried his burden of establishing prejudice. At best, defendant’s declarations show only that the victim had traces of food in a blood clot sample taken from her airway. There is no reasonable probability that this evidence would have altered the outcome of these proceedings. The jury had before it extensive and quite convincing evidence that the victim died of asphyxiation after defendant choked her with a cord and then stuffed paper napkins down her throat. Defendant’s evidence would not have convinced the jury to conclude that the victim died when she choked on food. We deny his petitions.
IV. DISPOSITION
The judgment is affirmed and the petitions for writs of habeas corpus are denied.
We concur: Kline, P.J. Lambden, J.