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April 23, 2004.


The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Petition for Writ of Habeas Corpus
Petitioner John Kelly (John) Badgett and his brother, Lance Christopher (Chris) Badgett, were convicted of first-degree murder and conspiracy to commit murder in California state court. Both were sentenced to terms of twenty-five years to life imprisonment in state prison. On September 11, 1997, John Badgett filed a petition for a writ of habeas corpus with this court challenging his conviction. He argues that his conviction should be overturned on four grounds: (1) The trial court violated his right to due process by refusing to allow a hearing on the voluntariness of statements made by the prosecution's main witness, Henrietta (Retta) Jasik; (2) his right to due process was violated based on a coercive immunity agreement entered into between Retta Jasik and the prosecution, which allegedly required her to testify consistently with prior statements; (3) the trial court violated his right to a fair trial by barring Chris Badgett from asserting a marital privilege based on Chris Badgett's common law marriage to Retta Jasik under Texas law; and (4) the trial court violated petitioner's right to confrontation by allowing the admission of extrajudicial statements of a non-testifying co-defendant that implicated petitioner in the murder.*fn1 After having reviewed the record and the parties' arguments and briefs, and for the reasons set forth below, the court rules as follows.


  In February 1989, portions of a dismembered body were discovered washed up on shore in Santa Cruz, California. Using fingerprints, police identified the body as that of Michael Palmer. Palmer had originally accompanied petitioner, Chris Badgett, and Chris' companion, Retta Jasik, from Devine, Texas, to California. John and Chris Badgett fled Texas to avoid revocation of probation. Palmer accompanied the group to avoid tax and marital problems. Prior to leaving, all three individuals had agreed that they would never return to Texas. The brothers and Palmer moved into a one-bedroom condominium in Santa Clara, California, with Chris's sister, Theresa Badgett, her boyfriend, Joe Albano, and Chris's companion, Retta Jasik. They selected names in obituary notices and obtained birth certificates and California driver's licenses under the names. Jasik secured a job as a cashier, and Palmer and the brothers secured jobs as security guards.

  Based on Palmer's job application and California Department of Motor Vehicle information, police learned that Palmer's driver's license had been issued sequentially with three other licenses that belonged to the Badgett brothers and Jasik under assumed names. Police arrested John and Chris Badgett on May 26, 1989. They also arrested Jasik for obtaining a false driver's license. Jasik was seventeen years old at the time, and she was later transferred to Santa Cruz County juvenile hall.

  While in custody, Jasik was interrogated multiple times. Originally she did not inculpate either of the brothers in the murder. Rather, she stated that Palmer had returned to Texas and that he had called to report his safe arrival there. On or about May 30, 1989, Jasik's mother visited her at juvenile hall. Police suggested to Jasik's mother that petitioner had already confessed to the murder and that her daughter would be released if she told the truth. Shortly thereafter, Jasik gave a statement inculpating the brothers in the murder.*fn3 She was then transported to the Santa Cruz County Sheriff's Department. She was interrogated again and further implicated the brothers in the murder. On June 2, 1989, Jasik appeared before the juvenile court for a detention hearing on charges of obtaining a false identification and acting as an accessory to murder. She was accompanied by her mother and her court-appointed attorney, Stuart Rich.*fn4 The parties entered into a preliminary immunity agreement regarding the charges, and Jasik was released from custody; she then returned to Texas with her mother.

  In February 1990, at the first preliminary hearing in John and Chris Badgett's murder trial, the juvenile charges against Jasik were dismissed. Counsel agreed that Jasik would testify under grant of transactional immunity, with the exception of murder and perjury, and that she would have use immunity with respect to her statements. Following Jasik's return to Texas, Rich informed the prosecution that Jasik had additional evidence to disclose. The additional evidence included a pre-offense statement by Chris Badgett that he did not know if he could trust Palmer and that he was not sure whether he should "off him or not." Jasik also informed Rich that she had Chris Badgett's jacket, and that she believed it had blood stains on it. After additional discussions between Rich and the prosecution, the prosecution sent a letter to Rich confirming Jasik's immunity with regard to the statements and the evidence. Tests of the jacket did not disclose any blood.

  On February 15, 1990, John and Chris Badgett's attorneys interviewed Jasik with her attorney present. The interview was taped, and copies were later made available to the prosecution. Following the interview, the prosecution contacted Jasik and interviewed her outside of the presence of her attorney. Rich later informed the prosecution that he did not believe it was either permissible or appropriate to contact Jasik outside of his presence. He also informed the trial judge of the incident. On February 21, 1990, Jasik's attorney agreed to an interview of his client by the prosecution. The prosecutor ended the interview when Jasik's attorney insisted on taping the interview. Jasik returned to California in June 1990 to testify at the second preliminary hearing, and again in September 1990, to testify at an in limine hearing.

  At John and Chris Badgett's trial, Jasik was the primary prosecution witness, and she testified under a grant of immunity.*fn5 She testified that on the night of the murder, she and Chris had stepped out on the balcony of the condominium. They discussed the subject of Palmer wanting to return to Texas because he had previously mentioned that he missed his wife. Chris told Jasik that he was not sure if he could trust Palmer and did not know whether he "should off him or not" or "if his brother would go along with it." Jasik ignored the statements, believing that Chris was "just in one of his moods," and the two returned to the living room.

  According to Jasik, about half an hour later, she, John, Theresa Badgett and Joe Albano, went out on the balcony together. John said that since Palmer had talked so much about returning to Texas, they were going to purchase a bus ticket for him. At John's request, Theresa gave John her ATM card so he could borrow money for the ticket. Chris and John said they were going to a party, and Palmer agreed to join them. While Jasik wanted to accompany them, Chris insisted that she tell Palmer that she could not go because she had to work and was tired. Chris, John, and Palmer left the condominium around 11 p.m., and Chris and John returned around 4 a.m. the following day. When they returned, Chris told Jasik that Palmer was on a bus back to Texas and would call in three days.

  When the local news aired the discovery of Palmer's body parts, Chris Badgett told Jasik that he was in trouble. Petitioner, Chris Badgett, and Jasik then moved from the condominium into a motel. While staying at the motel, Chris Badgett told Jasik that he and John had driven Palmer up into the mountains and then stopped to smoke cigarettes. When Palmer bent over to pick up a lighter that he had dropped, Chris shot him once in the head. John caught Palmer and the two rolled down the hillside until coming to a stop at the base of a tree. While Chris held a flashlight, John dismembered Palmer and put his body parts in a plastic garbage bag. They took the bag down the road and threw the parts into the ocean. Some time later, Jasik and John drove to San Francisco. and threw the gun used in the murder off of the Golden Gate Bridge.

  When initially questioned about the murder, Jasik told the police that Palmer had returned to Texas and had called to report his safe arrival there. She later told the police about the conversation in which Chris admitted to her that he had killed Palmer and about their efforts to conceal the crime, but did not tell the officers about her conversation with Chris before the killing in which he said he did not know whether he should "off Palmer. She later revealed these statements.

  At trial, Chris Badgett made an in limine motion to exclude evidence of his statements to Jasik on the ground of marital privilege, claiming a common law marriage with her under Texas law. After an evidentiary hearing, the court ruled that there was no common law marriage between Jasik and Chris under Texas law and denied the motion. The defense also made an in limine motion to exclude Jasik's trial testimony, claiming that the admission of such evidence would violate co-defendants' right to due process for several reasons. First, they alleged that Jasik was unlawfully incarcerated in Santa Cruz County for having a false identification because the charges arose from conduct in Santa Clara County. See Cal. Penal Code § 830.1; Cal. Welf. & Inst. Code § 626. Second, they contended that Jasik's initial cooperation with the prosecution was coerced because police officers told Jasik she would be released from custody if she cooperated with them. Third, they alleged that the prosecution had interfered with Rich's representation of Jasik. Finally, defendants argued that the immunity agreement was itself coercive because it required Jasik to testify consistently with her previous statements to the police.

  The trial court denied this second motion in limine on the ground that defendants lacked standing to bring the claims, but the court held that defendants were free to develop evidence before the jury of the prosecution's alleged coercion of Jasik. At the conclusion of the evidentiary portion of the trial, defendants moved to dismiss or, in the alternative, to strike Jasik's testimony on the ground that her immunity agreement with the prosecution was coercive. The trial court denied the motion but advised defendants that they were free to argue to the jury that her testimony should be discounted because of the agreement.

  The jury convicted both defendants of murder and conspiracy to commit murder. Both were sentenced to terms of twenty-five years to life imprisonment. Both filed appeals with the California Court of Appeal. On May 12, 1994, the California Court of Appeal reversed the murder and conspiracy convictions on the ground that the trial court erred in denying defendants standing to challenge the admission of Jasik's allegedly coerced testimony. On June 8, 1995, the California Supreme Court reversed the decision of the Court of Appeal, holding that although defendants had standing to challenge the admission of the coerced trial testimony of Jasik, they had failed to demonstrate that the admission of Jasik's testimony violated their right to due process. People v. Lance Christopher 10 Cal.4th 330, 338 (Cal. 1995). The court also concluded that the trial court had correctly determined that Chris Badgett could not assert the marital privilege for confidential marital communications between himself and Jasik because he had not entered into a valid common law marriage with Jasik in Texas. Id. On remand, the Court of Appeal upheld the convictions. On September 11, 1997, John Badgett filed a petition for a writ of habeas corpus in this court. On June 22, 1998, John Badgett amended his petition, and on July 2, 1999, he filed a supplemental brief. Over the course of the next year, ...

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