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WILLIAMS v. LARSON
March 31, 2003
DERICK A. WILLIAMS, PETITIONER,
CARL M. LARSON, WARDEN, RESPONDENT.
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.
DENIAL OF PETITION FOR
WRIT OF HABEAS CORPUS
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
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
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.
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
Ex. F at 1-6.
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.
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
"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?
"Novello: And . . . anything you say can and will be
used against you in a court of law[?]
"Novello: You have the right to talk to any attorney
and have an attorney present before and during any
"Novello: Do you understand that?
"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 ...
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