Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


March 31, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


The court having entered a ruling today denying the petition for a writ of habeas corpus, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits with the court. Petitioner responded with a traverse. The Court subsequently granted petitioner's request to amend the petition to add an issue raised on direct appeal. Respondent filed a supplemental answer and memorandum of points and authorities to address the new issue. The matter is submitted.


A San Mateo County jury convicted petitioner of second degree murder, assault of a child under the age of eight resulting in death, and willful injury to a child. He was sentenced to prison for fifteen years to life. As grounds for habeas relief he asserts that; (1) His Miranda rights were violated when certain statements were admitted at trial; (2) his due process rights were violated by the trial court's instructions regarding transcripts; (3) his due process rights were violated by the court's instruction on causation; and (4) his trial counsel was ineffective.

Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.

Four-year-old Vaundell Maurice Lee, Jr., nicknamed Momo, and seven-year-old Sergio Russell lived with Annetta Williams, their mother, and appellant, her husband. On August 25, 1995, shortly after 11:00 a.m., a "911" dispatcher received a call from appellant saying his son had choked on cereal and was unconscious. While keeping appellant on the line, the dispatcher sent an ambulance to the house, then asked what happened. Appellant replied, "He peed in this chair and I spanked him and I put him outside . . . he [lay] down on the ground and he had his head back and I guess he choked on his cereal." Appellant told the dispatcher Momo was not breathing and that he "just hear[s] his stomach pumping." The dispatcher guided appellant through the Heimlich maneuver, CPR and mouth-to-mouth resuscitation. As she was doing so, three emergency firefighters arrived.
Firefighter Jerry DeMartini found Momo lying motionless on his back. He had no pulse and his mouth was full of "runny" oatmeal-like matter. DeMartini did not know whether the matter was vomit or food that had not yet been ingested. DeMartini swept Momo's mouth with a cloth and searched with his fingers to dislodge any item causing the choking. He found nothing obstructing the airway, so he began administering oxygen through a manual "ambu" bag valve mask. Firefighter Gunning began CPR, which on a four-year-old child consists of positioning one hand over the sternum and rhythmically depressing the chest approximately one inch. Fire Captain Robert Brodie determined there was an air exchange, which is a flow of air inhaled and exhaled through the airway into the chest. Brodie has never seen anyone choke on the kind of liquid cereal in Momo's mouth.
Two paramedics arrived minutes after the firefighters and intubated Momo to administer oxygen. Using a laryngoscope they could see his trachea was clear. They attached Momo to an EKG monitor and administered drugs for cardiac arrest while Gunning continued to administer CPR. During the procedures, Momo's shirt was removed, and at least one emergency worker commented about scars or marks on his chest, stomach, and abdomen. DeMartini saw numerous bruises between the chest and pelvic bone. The two largest bruises were below the waist. The only part of Momo's body to which the emergency staff applied force was the sternum area. Because of the bruises and cardiac arrest, paramedic Karen Shadle asked the firefighters to call the police.
The emergency crew took Momo to the hospital approximately 10 minutes after their arrival at his house. The hospital emergency room staff immediately began advanced cardiac life support protocol. Momo's mouth contained cereal, but there was no upper airway obstruction. Neither the paramedics nor the hospital staff was ever able to resuscitate him, and he was pronounced dead approximately 45 minutes after he arrived at the hospital. In retrospect, attending emergency room physician Michael Fox and pediatrician Harvey Kaplan opined Momo was dead on arrival.
While treating Momo, Dr. Fox observed widespread bruising of varying age on Momo's trunk, back, legs, buttocks, and penis. Other than the bruise on the penis, Dr. Fox did not consider them unusual in location, but unusual in their number and extent. In his 20-year practice, he has seen only one other child with such an extreme degree of visible injury.
Dr. Kaplan, who qualified as an expert in child abuse, also observed numerous bruises all over Momo's body, from his head down to his legs, as well as a distended abdomen. The bruises appeared to have occurred between several days and 24 hours earlier, and were inconsistent with CPR efforts. The bruising sites were significant because it is unusual for a child to be bruised on the trunk, penis and inner thigh, unlike the knee, ankle or shin, which are "normal" areas of bruising in children. The bruise pattern on Momo's right chest was consistent with knuckle bruises from a punch. Bruises on his right inner thigh were consistent with bruises made by an object that wrapped around a leg, such as a belt or belt buckle. Dr. Kaplan has seen cases where the penis is pinched or squeezed as a focal point for a boy wetting himself. Compared with the bruises Dr. Kaplan had seen on other children who died from physical abuse, Momo's case was "one of the most severe cases" he had ever seen. In his opinion, the nature of Momo's injuries suggested they occurred when Momo was trapped in some manner. Following pronouncement of death, Dr. Kaplan took photographs of Momo because he was suspicious that Momo's injuries were indicative of abuse.
Jim Novello, a police homicide investigator, was notified that a four-year-old child was in the hospital, not expected to survive, and there were suspicious circumstances regarding his injuries. Novello arrived at the hospital four minutes before Momo was pronounced dead. Looking at Momo's body, Novello saw a large number of bruises from just below the neck to the feet down both sides of his body. He had never seen a child with that many bruises. Novello watched as Dr. Kaplan took photos and expressed suspicions of child abuse.
During an interview with Novello later the same day (Friday, August 25, 1995), appellant stated that he had disciplined Momo by "thump[ing] him on the head or by having him bend over the bed and giving him two or three "pops" on the buttocks with a leather belt, although he always held the buckle; that he never gave more than five or six "hits" with a belt; and that the previous day he "popped" Momo for using unacceptable language. He thought the bruises on Momo's chest might be from playing football. When asked about the bruises on the inner thigh and penis, appellant replied he gave Momo a whipping with a belt three days earlier, i.e., Tuesday, August 23. Appellant was not arrested following this interview.
At the August 26, 1995, autopsy the examining pathologist determined the cause of death as multiple blunt force traumatic injuries. He found approximately 42 external traumatic injuries that occurred in the 24-48 hours before death, 10 injuries that occurred between one week and 48 hours before death, and 20 injuries that occurred one week to several months before death. Momo's most significant injury was a laceration of the left ventricle of the heart, resulting from blunt force trauma. It would have caused death any time between a few minutes to 45 minutes, and was not caused by CPR. The pathologist also found blunt force injures to the intestine that corresponded roughly to the abdominal bruises and also to the thymus gland. The intestinal injures could affect a child's ability to control his bladder. The pathologist found no evidence of choking. According to Dr. Kaplan, the magnitude of force to rupture a ventricle is beyond that encountered in normal daily activities. He was unaware of CPR ever causing such a rupture.
After learning the results of the autopsy, Novello interviewed appellant again on August 29. Appellant admitted "whoop[ing]" Momo in the past, but said he did not know if the marks on Momo's body were caused by the "whooping" and that "when you're whooping kids you can't pinpoint the exact place where the belt hit them." He denied hitting Momo the day he died. At the conclusion of the interview Novello consulted with other police officers and the district attorney and decided to arrest appellant.
After appellant was arrested but before he was transported to jail, Officer Tom Daughtry took him to the hospital for examination of a swollen hand. While in the waiting room they talked casually, primarily about sports. After approximately 20 minutes of conversation, appellant stopped talking, paused, then said, "I made a mistake and it cost my son his life." Daughtry responded, "what do you mean," and appellant replied, "I'm under arrest. I guess it doesn't matter." He then related that on the morning of his death, Momo had urinated in his pants, so appellant took him upstairs to get into dry clothing, and while in the bedroom, appellant became frustrated and "popped" him. At that point in the narration, Daughtry interrupted and read him his Miranda rights. Appellant said he understood his rights, and Daughtry asked more detailed questions. Appellant stated he made cereal; Momo urinated in his pants; Sergio stayed downstairs to eat his breakfast while appellant took Momo upstairs; appellant was facing a dresser with Momo a bit to right rear, when appellant swung his arm in a backhand motion and hit Momo in the center of the chest; Momo left the room and went downstairs, grabbing the stair railing as he descended; appellant followed a minute or two later; he saw Momo lying on the couch, and took a chair into the bathroom to give the boys haircuts; he returned to see Momo lying in the patio, and telephoned "911." Daughtry then had appellant reenact the blow, with himself in the same position as Momo. Appellant's closed right fist struck Daughtry in the "dead center" of the chest.
After appellant was treated at the hospital, he returned to the police station with Daughtry, where he was interviewed again. He was advised of his Miranda rights and gave essentially the same account of striking Momo as he had given at the hospital.
The Defense
Appellant testified in his own defense, stating that after his wife left for work he prepared breakfast, then went upstairs to call the boys to the table. Sergio went downstairs. Appellant noticed that Momo, who recently had problems urinating in his pants, had wet pants. While getting clean underwear from the dresser drawer, appellant counseled him about using the bathroom. As he was changing Momo, he "swung out his arm" and "popped" Momo, i.e., struck him with the back of his hand somewhere between Momo's clavicle and abdomen. Momo made a little sobbing sound. Appellant told him to go downstairs and eat his breakfast.
Appellant went downstairs a few minutes later to cut the boys' hair. Momo was lying on the couch. Appellant took a kitchen chair into the downstairs bathroom and called Sergio for his haircut. Sergio sat down and told appellant the chair was wet. Appellant felt that Momo's pants were wet, gave him a casual "pop" on the behind and told him to go to the patio to dry off. As appellant went upstairs, he saw Momo lying motionless on the ground with cereal around his mouth. He tried to revive him with chest compressions of the force used on an adult, pushing his stomach, and splashing water on his face. He telephones "911" and followed the dispatcher's resuscitation directions until the firefighters arrived.
Ex. F at 1-6.

B. Issues Presented

1. Admissibility of statements

Petitioner contends that the trial court violated his constitutional rights by admitting statements which allegedly were made without required Miranda*fn1 warnings or which were involuntary.

The statements at issue here are petitioner's statement to Novello on August 29, 1995, his statement to officer Daughtry at the hospital on August 29, and another statement to Daughtry at the police station on August 29.

a. Statement to Novello

Petitioner claims that in his interview with officer Novello he did not explicitly waive his Miranda rights and that questioning continued after he invoked his right to counsel. As noted above, petitioner went voluntarily to the police station. The factual basis for this contention was set out by the Court of Appeal:*fn2

At the hearing on the motion, officer Novello testified that after obtaining the autopsy results he invited appellant to the police department because there were some "other things" he wanted to discuss with him in light of the investigation. In the station lobby Novello reiterated that he wanted to talk to appellant about the investigation he had undertaken since their previous conversation, and that appellant was not under arrest. Appellant told Novello he had "talked to counsel," who told him not to talk. Novello replied that he wanted to hold off any conversation until they were [in] a room where the conversation could be recorded. The following conversation then ensured in an interview room, and was admitted into evidence:
"Novello: . . . I'd like to go over a few things we talked about [on August 25, 1995, the day Momo died], okay? Thinking a little . . . more clearly now a couple more days have passed. I know it's still bothering you but . . . hopefully you feel able to answer my questions.
"[Appellant]: . . . Detective [Novello], I was advised not to answer any more questions. I gave my statement[.] I would love to answer your questions, but it's difficult and I spoke with my dad and I . . . had consultation and . . . they just told me at this time just don't say anything else. [M]y wife's having [a] very difficult time, and I don't know if she can handle looking at suff or being questioned or only that we're asking is to have our other son [Sergio, who had been removed from his mother's custody by Child Protective Services until the cause of Momo's death was known].
"Novello: Well, I can absolutely tell you, absolutely not. Because I need to find out what happened and if you're not gonna talk to me then I have to assume the worst. And there is no way . . . I am gonna let [an eight-year-old] boy back into a house where there [have] been some very serious problems. Now you want to talk[,] you want to invoke your Miranda, you . . . don't want to talk to me, and you want to do whatever you want to do, that's fine, that's up to you.
"[Appellant]: I'll speak. I . . . want my son. I know what I was advised to do, but I'll speak, I have nothin' to cover up, nothin' whatsoever.
"Novello: Okay, are you telling me now that you want to talk to me, after you . . .
"[Appellant]: I will . . .

"Novello: . . . just told me you didn't want to talk to me?

"[Appellant]: I will talk, `cuz of the fact that I want my other son.

"Novello: Okay. You know you have the right to remain silent?

"[Appellant]: Yes I do.

"Novello: And . . . anything you say can and will be used against you in a court of law[?]
"[Appellant]: Yes.
"Novello: You have the right to talk to any attorney and have an attorney present before and during any further questioning?
"[Appellant]: Yes.

"Novello: Do you understand that?

"[Appellant]: Yes.

"Novello: Okay. Well then why don't we state with . . . what happened last week?

After appellant related the events of the previous week, Novello pointed to any autopsy photo of Momo.
"Novello: Is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.