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NICKERSON v. ROE

March 17, 2003

GLEN WILLIAM NICKERSON, JR., PETITIONER,
v.
ERNIE ROE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Marilyn Hall Patel, Chief Judge

MEMORANDUM & ORDER

Petitioner Glenn "Buddy" Nickerson is an inmate of the California state prison at Los Angeles, California, following his conviction on two counts of murder and one count of attempted murder. On December 28, 1998, Nickerson filed a petition for a writ of habeas corpus with this court challenging his conviction on grounds of ineffective assistance of counsel and police and prosecutorial misconduct which deprived him of due process. In support of his petition, Nickerson presented a variety of evidence not brought forth at his trial to show that he is factually innocent of the crimes charged. The court granted Nickerson's request for an evidentiary hearing on his petition. After having reviewed the record, the testimony and evidence submitted at the evidentiary hearing and the parties' arguments and briefs, and for the reasons set forth below, the court rules as follows.

BACKGROUND

Along with two codefendants, Murray Lodge and Dennis Hamilton, Nickerson was charged with the murders of John Evans and Mickey Lee King and the attempted murder of Michael Osorio.*fn1 Nickerson and Hamilton were tried jointly in 1987. Because the State of California sought the death penalty against Lodge, he was tried in separate proceedings in 1992.

I. Evidence Presented at Nickerson's Trial

Because both the procedural issues raised by the petition and Nickerson's substantive claims require analysis of the evidence presented against Nickerson at trial, the court first summarizes the state's original case and Nickerson's defense.

A. The Crime Scene

At about 1:00 a.m. on September 15, 1984, Santa Clara County Sheriff deputies responded to shots fired at an address on Ronda Street in San Jose, California. RT 5666. When they arrived, they found John Evans lying unconscious in his front entryway with a severe head wound. RT 5672-73. Evans never regained consciousness. RT 5673.

The officers entered the house and found Michael Osorio in the hallway and the body of Mickie Lee King in the kitchen. RT 5677. Both men had wounds to the back of their heads and their hands were handcuffed behind their backs. RT 5677-79.

Twenty minutes later, Sergeant Joseph Kirby and his police dog, Ajax, arrived at the crime scene. RT 5797. Kirby noticed that Osorio had a head wound and was acting in a dazed manner. RT 5800, 5802. Osorio identified himself to Kirby. RT 5827. In response to Kirby's questions about who had hurt him, Osorio answered,"I don't know who they were. We were asleep. I don't know them." RT 5827, Exh. 2 (Kirby notes).

After a search of the area, Kirby discovered a fingertip of a bloodstained glove underneath a car in Evans' driveway. RT 5803. Ajax picked up a human scent from the glove and began following a trail of blood down Ronda street in front of Evans' house, left on Union Street and into the Lakeside Apartment Complex off of Union. RT 5803-05. In the apartment complex driveway Ajax found a rubber glove and a cloth glove with the same scent he was following. RT 5805-06. There was a large amount of blood on the driveway and the wall of a nearby garage and a bloody handprint on an adjacent dumpster. RT 5807.

The trail led to the front of the complex on Heimgartner Street where the blood spatters ended. RT 5807-08. Ajax followed the scent trail left on Heimgartner and into a second driveway where he ultimately lost the scent at a grassy area. RT 5807-08.

A resident of the complex came out and told Kirby that he had seen two people running into a pond area and that one appeared to be holding a cloth to his abdomen. RT 5819-20, 5832-33.

Ajax picked up a second scent at the apartment complex's pond area. RT 5820. He followed it to the driveway of the complex off Union and to the rear yard fence of Evans' next door neighbor. RT 5820-23. A number of .357 caliber shell casings were found along the scent trail. RT 5821, 5823.

Evidence technicians photographed the crime scene and gathered fingerprints, bullet fragments and casings, a number of handguns, a briefcase with money and drugs and other physical evidence. RT 5885-6046.

None of the physical evidence gathered at the scene was linked with Nickerson. No gun used at the scene was ever found with Nickerson or otherwise associated with him. No fingerprints or clothing found at the scene were matched with Nickerson. The blood trail along Ronda Drive and Union Avenue did not match Nickerson's blood type, and prosecutors argued in Nickerson's trial that the blood trail was left by another unidentified perpetrator.

B. Nickerson's Motive

At trial, the prosecution argued that the killings were committed by Nickerson as part of a robbery and in revenge for the shooting of Nickerson's brother by Evans. Less than a month before Evans' death, Buddy's brother, Nicky Nickerson, went to Evans' house with a shotgun. RT 6598-99. Nicky Nickerson seized Evans' live-in girlfriend, entered the home holding her at gunpoint, and demanded that Evans come out and speak with him. RT 6598-99. A scuffle ensued in which Evans shot Nicky Nickerson in the chest and literally kicked him out of the house. RT 6600-01.

The prosecution presented testimony that Nickerson had made threats against Evans. Deputy Sheriff Tony Silva testified at trial that on the night that Nicky Nickerson was shot, Buddy Nickerson told Silva that "I will give you people thirty days to take care of it or else I will," although Silva failed to include this statement in his report. RT 7530. Barbara Payne, Evans' live-in girlfriend who was present when Nicky Nickerson was shot, testified that on August 25, 1984, she answered the phone at Evans' house.

She spoke with someone she believed to be Buddy Nickerson who told her, "Tell John he has 31 days." RT 6608. Deputy Sheriff Edward Atlas testified that on August 31, 1984, Nickerson told him that Evans had set Nickerson's truck on fire while Nickerson was in a nearby restaurant. RT 6418. Nickerson told Atlas that "if Evans didn't leave him alone there would be war" and that Atlas should relay that message to the sheriffs' detectives. RT 6421-22. Judy Bryant testified that prior to the shootings, she heard Nickerson discuss his wish for revenge. RT 6473.

In response to the evidence of motive, Nickerson sought to establish that he and Evans had worked out their differences over Nicky Nickerson's shooting. A bartender, James Lumley, testified that he saw John Evans and Nickerson after the Nicky Nickerson shooting and that they talked and drank together for thirty or forty minutes. RT 7648-49. Barbara Payne also testified that a few days before his death, Evans told her that he and Nickerson had resolved the problems between them and that there would be no more trouble. RT 7509. Michael Osorio, one of the victims, testified that Evans told him that his problems with Nickerson had been resolved. RT 7208-09.

C. Eyewitness Identifications of Nickerson

At Nickerson's trial, two eyewitnesses positively identified Nickerson and placed him at the scene of the murders. Michael Osorio, one of the victims, testified that Nickerson was one of the masked men who broke into the house. Brian Tripp, a resident of the nearby apartment complex, identified Nickerson as a man he saw fleeing the scene. Another witness, nearby resident Sharon Silberhorn, did not see anyone the night of the murders, but identified Nickerson as a man that she saw in a car near Evans' house the evening prior to the shootings.

1. Michael Osorio

Michael Osorio, the sole survivor of the shooting, gave the police the only eyewitness account of the events inside Evans' home. Osorio testified at trial that on the evening of September 14, 1984, he drove from Sacramento to San Jose to help Evans move his car painting equipment to Sacramento. RT 7134. A good friend of Evans, Osorio had taught Evans how to manufacture methamphetamine. RT 7122, 7127. When Osorio arrived at Evan's house, he met Evans' mother and sister, Phyllis, who were visiting. RT 7139-40. Mike Riley and Mickie Lee King, Evan's half-brother, were also there. RT 7139-40. At some point thereafter, Evans' mother and sister left. RT 7142. After receiving a phone call, Evans told Osorio that he had to go somewhere and would be right back. RT 7142-43. Evans did not say where he was going or who called. RT 7143. Evans asked Osorio to wait for him to return. RT 7142-43. Riley and Evans, both armed with guns, left in separate cars. RT 7143-44.

Osorio fell asleep on the couch and was later awakened by the sound of a door being kicked in. RT 7147. Someone rushed into the room and hit Osorio on the head with something that felt like wood. RT 7148. Osorio was pulled off the couch onto the floor and handcuffed with his arms behind his back. RT 7148-49. Osorio testified that he next heard the sound of dogs attacking someone or something and heard King yelling and telling someone not to shoot. RT 7149-50. He heard the sounds of someone being beaten and saw King being brought into the living room. RT 7150.

Osorio testified that King was then shoved to the floor next to him, face down with his hands cuffed behind his back. RT 7151. King said, "Come over here, buddy, and loosen the fucking cuffs." RT 7151.

Osorio saw a man wearing a ski mask over his head go over to King. RT 7151. Osorio heard King being hit in the head with what sounded like a gun. RT 7154. King was later moved to the kitchen. RT 7167.

Although all of the intruders wore ski masks at all times, Osorio felt that he could distinguish at least three different attackers. RT 7161. Osorio never saw more than three masked men at any one time. RT 7160.

The masked intruders asked Osorio who Evans was with, where he went, and when he would be back. RT 7154. Osorio told them that Evans went to Reno for the weekend. RT 7155. Osorio was hit in the head in response. RT 7155. Osorio felt what he thought was a gun put to the back of his head. RT 7168. At some later point, Osorio heard a car pull up. RT 7169. Someone turned down the volume on the television set and said, "He's here." RT 7169. Osorio does not remember what happened after that. RT 7169.

Osorio stated at Nickerson's trial that the masked man who responded to King's request to loosen his cuffs was "heavy-set," and based on this he "associated that person as being Buddy Nickerson." RT 7151. Osorio did not notice anything about this person other than his build. RT 7228. Osorio described his level of certainty about his identification of Nickerson as ten out of ten. RT 7172.

Various pieces of evidence emerged at trial which undermined Osorio's identification of Nickerson. Osorio had been hit on the head repeatedly during the break-in and was eventually shot in the head. As such, his ability to remember the events of the evening became an issue at Nickerson's trial. Osorio testified to being groggy throughout the episode due to repeated blows to the head delivered by the intruders. RT 7148-49, 7154-56, 7162, 7165.

An expert in physiological psychology, Dr. Ralph Kiernan, Ph.D., testified that while Osorio's type of injury did not generally result in loss of pre-trauma memory, specific evaluation of loss of an individual's pre-trauma memories was impossible. RT 6165-66, 6174. Dr. Kiernan also testified that soon after a trauma the brain would be "at its maximally dysfunctional state" and responses might be less reliable than some months later.*fn2 RT 6169-70. Osorio testified that when he first got out of the hospital, he could not remember his own name or what day it was, although his memory was constantly getting better. RT 7159.

Throughout his testimony, Osorio was unable to remember much of his prior testimony or statements as a result of brain damage from his injury. He repeatedly testified as to the problems with his memory. E.g., RT 7198-7202.

Osorio also testified that the district attorney's office had held "recollection refreshing sessions" prior to trial during which time Osorio was read his prior testimony and asked about it. See RT 7226, 7259, 7261. Significant aspects of Osorio's testimony changed over time, such as whether Evans had given him a physical description of petitioner or shown him photographs of the Nickersons prior to the shootings, RT 7235-36, 7239-41, 7264-67; whether the masked man he identified as Nickerson held a pistol, a shotgun, or no weapon at all, RT 7174, 7256-57; and whether he had been influenced by King referring to an attacker as `buddy,' RT 7259.

Another issue that arose in Osorio's testimony was whether he knew Nickerson well enough at the time of the shootings to have identified him. Osorio had previously seen Nickerson only once, about two years before the incident when Nickerson was doing some yardwork for Evans, and did not remember being introduced to him or looking at his face. RT 7170, 7228-29. Osorio could not even remember whether Nickerson had been working with his shirt on or off. RT 7229.

The defense also argued that due to brain trauma caused both by the shooting and the brain surgery, Osorio had been susceptible to the suggestions by the two lead detectives, Sgt. Jerry Hall and Sgt. Brian Beck, that Nickerson had been an attacker. Osorio's first statement at the scene was that the crime occurred when he was in bed and that he did not know what happened. RT 5827. He told one officer who questioned him, "I don't know who they were. We were asleep. I don't know them." RT 5827. At this point, he was alert enough to give officers his name and answer questions. When first interviewed at the hospital later that day, Osorio told Detective Hall only that the intruders were white male adults of average builds wearing ski masks. RT 7469.

Osorio's initial identification of Nickerson apparently occurred at the hospital the following day, after Osorio had undergone brain surgery for the gunshot wound to his head. RT 7474-75. Although Osorio testified that he did not remember this identification, RT 7220, 7175-76, Detective Hall testified that Osorio "emphatically" identified Nickerson as one of the perpetrators, RT 7474. Osorio was not shown photographs at this interview, but simply named Nickerson as one of the intruders. Detective Hall later testified at Lodge's trial that Osorio made the identification from personal knowledge of Nickerson's appearance. LT1 9421. Beck and Hall did not tape record the interview, LT1 9422, nor were contemporaneous notes referred to either in state court proceedings or in the proceedings in this action.

Osorio did not remember the interview or seeing Beck and Hall in the hospital, but only remembered Beck's voice. RT 7254-55.

The defense suggested that Osorio might have identified Nickerson in his injured state because he had been expecting trouble from Nickerson at the time of the shooting. Osorio testified that in the weeks prior to the murders, Evans had told Osorio that he was concerned about the Nickersons and had shown him pictures of the brothers. RT 7172. Osorio stated in his testimony that Evans' fears "definitely affect[ed] me feeling that it was Buddy Nickerson that was there." RT 7172. His identification was also influenced by the fact that Evans' girlfriend told him that she thought that Nickerson had made threatening phone calls to Evans prior to the shootings. RT 7233. Osorio also testified that he recognized Nickerson's nickname when King addressed one of the captors as "buddy."*fn3 RT 7259.

2. Brian Tripp

Brian Tripp testified at Nickerson's trial on March 4, 1987, two and a half years after the shootings. At the time of the trial, Tripp was a Colusa County Deputy Sheriff and had been so employed for the previous eight months. RT 6429. At the time of the murders, Tripp lived at a condominium off Heimgartner street, just a block from Evans' house. RT 6429. Tripp testified that while he was in the parking lot of the apartment complex the night of the shootings, a man ran past him. RT 6433. The man was hunched over as if in pain and was holding a towel or a jacket to his stomach. RT 6433-35. He stopped about fifteen feet past Tripp, looked around, unhunched and looked up at the sky, turned in a full circle, then looked at Tripp and asked, "Where the fuck am I?" RT 6436-37. Tripp responded that if he did not belong, he should leave. RT 6437. The man ran back past Tripp, then ran south between the condominium buildings. RT 6437-38. Finding his way blocked by a large fence, the man turned back and ran off to the north. RT 6438. A week later, after he learned of the shootings, Tripp contacted the sheriff's department and later spoke with Sergeants Beck and Hall. RT 6440-41.

During his testimony, Tripp then identified the man he had seen as Nickerson, who was present in the courtroom. RT 6443. Tripp stated in court that he was "positive" that Nickerson was the man he saw.

RT 6443. After consulting Beck and Hall's notes, Tripp remembered initially describing the man to the detectives as five feet eleven inches to six feet tall, 190 to 200 pounds with brown shoulder length dirty hair, a moustache, wearing a dark colored, button up long sleeve untucked shirt. RT 6442.

On cross examination, Tripp admitted that Nickerson did not fully fit the description he gave to Beck and Hall. RT 6462. He nonetheless maintained that Nickerson "resembled" the man. RT 6462.

Tripp stated that he was "positive" that the man he saw was Nickerson, and reaffirmed prior testimony that he was "nine out of ten" in his certainty in his identification. RT 6443, 6452.

Tripp also acknowledged in his testimony that Beck and Hall had shown him a photographic line-up prior to any in-person identification of Nickerson. RT 6448. Tripp identified three or four of the photographs as resembling the man he saw that evening. RT 6449. Nickerson was one of the photographs Tripp picked out as a possible match. RT 6451. Tripp stated, however, that it was easier for him to identify a person in person than from photographs, and that upon seeing Nickerson in court he immediately identified him as being the man he had seen. RT 6451, 6452.

3. Sharon Silberhorn

The night before the shootings, Sharon Silberhorn, a resident of Lakeside Condominiums, returned home at about 10:30 p.m. RT 6512. She observed an older noisy car pull into the complex and drive slowly around the parking area. RT 6512-13. Its occupants appeared to be pointing to various things.

RT 6514. Silberhorn described the passenger as a heavyset male with sandy bushy hair, sideburns and a goatee, ponytail, and a tattoo on his right arm. RT 6515. The next night, Silberhorn was awakened by yelling in the parking lot. RT 6516. She heard what she thought was the same loud car she had seen the night before. RT 6516. She did not get out of bed and did not claim to see anything the night of the murders.

Silberhorn testified that she could identify the car by sound because she had "worked around automobiles." RT 6517. On cross-examination, Silberhorn admitted that she worked as the finance manager of an automobile dealership. RT 6549.

At trial, Sharon Silberhorn identified Nickerson as a passenger in the loud "lowrider" car she saw at the Lakeside Apartment Complex on the night before the shootings. The day after the shooting, Detectives Beck and Hall showed Silberhorn a series of photographs. RT 6536. Silberhorn picked out three photographs as resembling the man she saw and focused on one in particular, though no testimony was presented as to which photographs she picked out.*fn4 RT 7472, 6537.

Silberhorn testified that she initially identified Nickerson three weeks before she testified at Nickerson's preliminary hearing. RT 6538. According to Silberhorn, she was at the Municipal Court with Sergeants Beck and Hall and Inspector McCurdy. RT 6539. Silberhorn testified that she was "wandering off looking for a drinking fountain" and began looking in courtrooms. RT 6539, 6560. In the second courtroom, she saw Nickerson and "realized" that he was the man she had seen the night before the shootings. RT 6539-40, 6561.

Inspector McCurdy of the Santa Clara District Attorney's office contradicted Silberhorn's account and testified that her initial in-person identification was not spontaneous. He stated that prior to identifying Nickerson, Silberhorn asked if "the guy was in the courtroom" and then asked permission to look in the courtroom. RT 7498, 7500, 7503. Inspector McCurdy told Silberhorn that Nickerson was in the courtroom and that she could look in. RT 7500. Nickerson was sitting at the counsel table dressed in red prison clothes with chains on. RT 7501. Nickerson was the only defendant in the courtroom at the time.

RT 7501. After Silberhorn looked in the courtroom, she told McCurdy that seeing him scared her and that she was fairly certain it was the man she saw. RT 7501. Silberhorn denied Inspector McCurdy's account. RT 6540-41, 6560-61.

D. Incriminating Statements Made To Judy Bryant

Judy Bryant testified that in the early morning hours of the Sunday or Monday following the Evans shootings, Nickerson was over at her house talking on the telephone to someone she presumed to be his mother. RT 6475-77. Bryant testified that Nickerson appeared concerned that his mother would not be taken care of, and that he said that "it had to happen." RT 6477.

After the court recessed for lunch following cross-examination of Bryant, Bryant indicated to prosecutors that she had further relevant information. The prosecution recalled Bryant to the stand in the afternoon for further examination. Judy Bryant then gave surprise testimony that Nickerson made inculpatory statements to a group of friends. Judy Bryant testified that during the early morning hours of Sunday, September 16, 1984, she took a van ride with a group of people to "go pick up some drugs that was owed to them." RT 6490-91, 6494-95. Nickerson was a member of the group. RT 6493. The discussion turned to the Evans homicides. RT 6491. Judy Bryant testified that Nickerson made "minor comments" to the effect that "they had to die" and "you should have seen his face or something like that." RT 6491-92.

E. Other Witnesses

A number of witnesses heard the shots at Evans' house and saw men fleeing the scene who did not fit Nickerson's description. One saw a thinly built male about five feet eight inches tall with shoulder length hair run across Evans' property, then saw a gold van traveling east on Ronda, away from Union, with its headlights off. RT 5740-57 (testimony of Judy Schattie).*fn5 Another saw a man of similar height with short hair walk slowly down Ronda then get into a van that was traveling down Ronda, away from Union, with the side door open. RT 5853-56 (testimony of Mary Baker).*fn6 A witness standing on the corner of Union and Ronda saw a man five feet eight inches tall with medium build and shoulder length hair run past him, hunched over and holding his waist, followed by another man of similar height and build. RT 6064-76 (testimony of Jeffrey Ottoveggio).*fn7 A resident of Heimgartner Lane, a street about one block south of Ronda, heard shots and saw a man of medium height and build climbing over the fence behind a neighboring condominium complex. RT 5698-5705 (testimony of George Gutierrez).*fn8 One witness, Robert Schattie, heard the sound of gunshots coming from Evans' house. RT 5719.

He did not see anyone running from Evans' residence after the shots. RT 5735. He reported this version of the events to the police shortly after the shootings. RT 5720. A few days later, an image came to Schattie "in the nature of a day dream," and he contacted the police to supplement his story. RT 5721, 5727. Schattie testified that in this "day dream," he looked out the front window of his house and saw a person near Evans' car. RT 5723. Mr. Schattie, himself a man of about 240 pounds, described the figure he saw as over 200 pounds, or as big as he was. RT 5728. The man was over six feet tall, with sandy colored hair and a full beard. RT 5728. The figure held a "long gun," such as a shotgun or rifle, which he fired twice. RT 5722, 5725. The person then calmly walked from the car into the street. RT 5727.

Schattie never identified the man he saw as Nickerson. In the daydream, Schattie also heard two more gunshots that sounded as if they were from outside Evans' home. RT 5721-22.

On cross-examination, defense counsel inquired further about the description of the memory as a "day dream," asking Schattie whether the vision was "something that you made up or something you remember from this night in your neighborhood?" RT 5734. Schattie replied that he did not know. Id.

This court finds nothing in the record showing that the prosecution presented physical evidence indicating that a rifle or shotgun was fired outside Evans' house. In its lengthy closing, the prosecution devoted only a few sentences to Mr. Schattie's testimony. The prosecutor referred to him as "the dream witness" and suggested that the vision might have resulted from the fumes from Evans' methamphetamine lab pervading the neighborhood. RT 7727.

F. Nickerson's Alibi

Nickerson presented alibi evidence that he was sleeping in his truck in a friend's driveway at the time of the shootings. The testimony is summarized below.

During the day of September 14, 1984, Nickerson was with a friend, Keith Banks, driving around and drinking. RT 6695-96. That evening they were at the home of Keith's brother, Dion, where there was a party for Dion's wife, Kristin. RT 6658, 6683. Nickerson and Keith left the party at 11:00 p.m.

RT 6697. Keith walked home and Nickerson, who felt sick, got into his truck parked in Dion and Kristin Banks' driveway. RT 6697, 6662. When Dion and Kristin Banks left the party at around 11:30 p.m. to drive a friend home, Nickerson was in his truck. RT 6662. Kristin Banks estimated they returned home between 12:00 a.m and 12:30 a.m., RT 6664, while Dion estimated their return between 12:30 a.m. and 1:00 a.m. RT 6670, 6687. On her way back into the house, Kristin Banks spoke briefly with Nickerson, who was still in his truck with his feet sticking out the window and his boots inside the house. RT 6664.

When she awoke the next morning, Nickerson was still there and his boots were still inside the house. RT 6692.

Cindy Price and Ralph Banks spent from nine or ten o'clock, RT 7404, until the early morning hours, RT 7408, talking in Price's truck twenty feet from Nickerson's vehicle. RT 7407. She saw Nickerson get into his truck barefoot about an hour after she and Ralph Banks went outside. RT 7405.

Price did not see Nickerson leave his truck. RT 7407. Ralph Banks, who occasionally went inside to use the bathroom or get another drink, testified that he never saw Nickerson leave the truck. RT 7431-32.

Price saw Nickerson talking on the telephone at the Banks' house the next morning. RT 7409.

G. Evidence Against Other Defendants at Trial

At Nickerson and Hamilton's joint trial, the prosecution introduced a number of inculpatory statements by Hamilton and Lodge and physical evidence that tied both men, but not Nickerson, to the scene of the crime.

1. Testimony of Norma Goytia

At trial, the prosecution introduced the testimony of Norma Goytia that Lodge, Hamilton and a third man "Bob" had access to a gun and were seen together on the day of the shootings. Hamilton, Goytia's ex-husband, often stayed at her house with Lodge. RT 6719. On the day of the shootings, she received two or three phone calls for Lodge from a man named "Wolf." RT 6738. Later that day, Hamilton argued with Goytia over her .32 caliber Walther. RT 6739. Hamilton said that he needed it for "backup." RT 6741. Hamilton left and returned thirty to sixty minutes later with a man named "Bob." RT 6743. At some point, they left the house. RT 6745.

Goytia left the house and went to a bar from 10:00 p.m. until 2:00 a.m. RT 6749. When she was returning to her car, Hamilton pulled up in his Buick Riveria. RT 6750. He told Goytia that her gun had been involved in a homicide, that she should report it to the police as stolen, and that her house had been messed up. RT 6766. Hamilton said that he wanted it to appear that the gun had been taken in a robbery.

RT 6773. Goytia returned home and called the police and reported the gun stolen. RT 6729, 6776. She eventually told Beck and Hall that this report was untrue. RT 6734.

Two or three days later, Hamilton told Goytia that "Bob" had been shot five times and had obtained medical treatment for $1000. RT 6779-80. There had been a lot of confusion and her gun had been dropped. RT 6780. Hamilton did not mention Lodge and identified "Wolf" as a friend. RT 6780.

Goytia assumed that Hamilton had learned the details from Lodge. RT 6833. Hamilton later told her that he had not been at the shootings. RT 6808.

2. Hamilton and Lodge's Other Statements

Bridget Welsh testified that Hamilton made incriminating statements to her. RT 6932. She denied that she relayed to Goytia a detailed confession by Hamilton in which he told her that Lodge set up the shootings; that the motive was to steal money and drugs; that no one was shot before Evans returned home; that someone "freaked out and started shooting"; that no one was supposed to get hurt; and that Hamilton ran and dropped Goytia's gun. RT 6938. Beck interviewed Welsh and testified as to her statement about ...


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