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Lunbery v. Hornbeak

November 7, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


I. Introduction and Summary

This action is proceeding on the petition transferred to this court from the United States District Court for the Northern District of California on June 28, 2007.

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus. Petitioner challenges her 2004 conviction for second degree murder with personal use of a firearm (Cal. Penal Code §§ 817(a); 12022.5.) Petitioner is serving a sentence of nineteen years to life.

In a modern day version of Edgar Allan Poe's, Tell Tale Heart, petitioner confessed to the crime of murdering her husband long after she had been thought not to be a suspect. The evidence at the time of the murder, including an "I'm -out-of-the-house" love note written to petitioner's husband conspicuously posted in the residence, and petitioner's seeming air tight out-of-the-house alibi had pointed away from petitioner. Despite what some might term attempts to create the perfect crime, she confessed years afterwards due to the vigorous interrogation of police who were conducting a cold case investigation. Petitioner raises the following claims: (1) her trial counsel rendered ineffective assistance; (2) the trial court violated her right to a fair trial by excluding evidence of third party culpability; (3) her rights to a fair trial and to present a defense were violated by the failure of the trial court to impose appropriate sanctions on the prosecution for failure to preserve information regarding the identity of a confidential informant; (4) her right to due process was violated by the trial court's failure to admonish the jury following prosecutorial misconduct; and (5) her right to due process was violated by the admission into evidence of her involuntary confession.

After carefully considering the record, the court orders that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

In reviewing a state court's summary denial of a habeas petition, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000)(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590 (1991)).

In evaluating the claims raised in the instant petition, the California Court of Appeal did not apply federal standards. "The state court need not cite or even be aware of the governing Supreme Court cases, 'so long as neither the reasoning nor the result of the state court decision contradicts them.'" Powell v. Galaza, 328 F.3d 558, 563 (9th Cir. 2003), quoting Packer, 537 U.S. at 8, 123 S.Ct. at 365. Accordingly, this court considers whether the opinion of the California Court of Appeal in denying petitioner's claims was contrary to or an unreasonable application of clearly established Supreme Court authority.

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.

Defendant Kristi Lyn Lunbery's husband was shot and killed in 1992. The case remained unsolved until 2001 when it was reopened and defendant confessed to killing him. A jury convicted her of second degree murder (Pen.Code, § 187, subd. (a)) and found she personally used a firearm in the commission of the offense. (Pen.Code, § 12022.5, subd. (a).) The trial court sentenced her to a total prison term of 19 years to life.

A. The Prosecution's Case

In April 1992, defendant, her husband Charley Bateson (Bateson), the victim in this case, and their two young daughters lived in a house on Fir Street in Burney. The family had moved into the house the previous month. Bateson owned a 30-30 Winchester Model 94 rifle with a lever action that defendant's grandmother had given him as a gift. He kept the rifle in its case in a closet at their prior residence on Ash Street. However, his father saw it in Bateson's truck the week before Bateson's death.

Belinda Strickland had been a neighbor of the Bateson family at their prior residence on Ash Street and was defendant's friend. At 11:47 a.m. on April 17th, Strickland received a collect telephone call from defendant, who said she was at the Mt. Shasta Mall in Redding, that she had a flat tire, Bateson was not answering the telephone, and she wanted Strickland to go over to defendant's house and wake up Bateson so he could help her. Strickland drove over to the Bateson residence, knocked on the front door, and then yelled at the window. Receiving no response, she entered the house through the unlocked front door. She heard a radio coming from the bedroom. The door to the bedroom was closed, so she opened it and found Bateson lying in the bed with the blankets pulled up to his neck. He appeared to be dead. Without entering the room or touching anything, she went to a nearby house and asked someone to call the police. She then drove to Bateson's parents' house and told them he was dead. Strickland continued to socialize with defendant but they never spoke about Bateson's death.

Detective Clemens contacted defendant at the Mt. Shasta Mall where she was waiting with her two children, her grandfather, Francis Conley, and her grandmother, Ethyl Miles. She became visibly upset when told her husband was dead. The group walked to defendant's car in the mall parking lot. The left front tire was flat. There was glass on the ground by the tire and a piece of glass was imbedded in the tread.

Defendant went to the sheriff's office where Detective Clemens and another officer interviewed her. She told the officers that Bateson worked the swing shift at a lumber mill and that he finished working that morning at 3 a.m. When he arrived home, he woke defendant up and they briefly chatted before he joined her in the hide-a-bed in the living room where they slept.

Defendant and the children awoke about three hours later around 6:30 a.m. Bateson spoke to them for a short time and defendant told him she and the children were going shopping in Redding. He asked her to set the alarm for 11:30 a.m. and told her he was going to change the lock on the front door. He then moved to the children's bedroom to sleep. Defendant set the alarm, put it in the bedroom, and closed the door. She left a note for Bateson on the refrigerator just to remind him of what she had told him. She did not lock the front door because she generally did not lock it when Bateson was home.

Defendant left the house with the two children about 8:00 a.m. First, they went to her parents' house in Burney to drop off the dog.

Her grandfather, who was staying in the house while he visited the family, told defendant he was also going to Redding. Defendant and the children then proceeded to the mall where she parked her car. When she returned to the car after shopping, she discovered she had a flat tire and tried to call Bateson but he did not answer the telephone. Thinking she may have turned off the ringer on the telephone so he could sleep, she called Strickland and asked her to go wake up Bateson so he could help her with her tire. When she saw her grandfather in the mall, he agreed to wait with her. Defendant explained to the officers that the lock on the front door of her house needed to be changed because the night before, when she got home around 6:15 p.m., about an hour and a half after Bateson had left to go to work, she found the front door unlocked and all the lights turned on. When she called Bateson at work, he told her he had left the door locked and the lights out. Defendant told the officers she thought her other grandmother, Margaret Beaman, had changed the lock when they moved into the house about two weeks before because the "people ... who used to live there" kept driving by the house. Beaman had evicted those people because she believed, based on the large number of brief visitors to the house, that they "did drugs." The boyfriend of the woman who lived there would drive by and "stare" at defendant and her family. Defendant informed the officers that Bateson owned a rifle that he used for deer hunting. She claimed not to have seen it since their recent move and did not believe Bateson kept it in his truck. Defendant claimed she and Bateson had no major problems and that things were "pretty smooth" between them. When asked about financial problems, defendant said she and Bateson were a couple of payments behind in certain things. Defendant believed Bateson's life insurance policy had lapsed. She agreed to allow the officers to search her car, which when searched contained no weapons or evidence of blood stains. The officers did not see any blood on defendant's clothing or person either.

Meanwhile, Shasta County Sheriff's Sergeant Wooden, who was in charge of the crime scene investigation, went to the house where he found Bateson in a back bedroom, lying on his back in a child-sized bed covered with cartoon motif sheets, wearing only his undershorts. He had suffered one gunshot wound to the head, which was the cause of death.

The location and pattern of the fragments found from Bateson's skull, the bullet, and blood spatters on the floor, bedroom wall, door jam, and hallway just outside the bedroom door indicated that the bullet was fired from a high velocity rifle like a 30-30 and that the door to the bedroom was partly open when the gun was fired. Gunpowder marks on the pillow beneath Bateson's head indicated the muzzle of the gun was within four to six inches of his head when it was fired. According to Sergeant Wooden, the shooter may or may not have been splattered with blood and skull fragments.

A note on the refrigerator door in the kitchen read: "Hon, we ran down to Redding for a few more groceries and to look at a few things in the Target ad. I'll bring something home for dinner. Love, your three girls. P.S. Be back around 1:00 or so."

There was no evidence of forced entry or ransacking of the house and no evidence that someone tried to clean up the blood in the home or tried to clean it from his or her person. No firearm or expended shell casings were found in the house.*fn2 Fingerprints and one palm print were lifted from the front and bedroom doors. A number of them belonged to Bateson and defendant, and one belonged to Strickland.

The bullet and jacketing removed from Bateson's body and the bullet fragments recovered from the crime scene were .30 caliber. The marks on the jacketing were consistent with the conclusion the bullet was fired from a Winchester Model 94 30-30 rifle, which fires .30 caliber bullets. That model was the most common rifle that could have made the marks, although they could have been made by 27 different types of weapons.

In 2001, Shasta County Sheriff's Detective Grashoff was assigned to reevaluate Bateson's death. On December 20, 2001, Detective Grashoff and Blankenship went to defendant's residence. She had been previously notified that they wanted to speak with her and consented to the interview. The detectives identified themselves, informed defendant of their cold case investigation and she invited them inside. During the interview, defendant initially reiterated the version of events she had related to detectives in 1992, with a few changes. She now recalled the lock on the front door had not been changed and the prior tenants may have had a key. She indicated that while she probably did not lock the door when she left the house the morning of Bateson's death, she was not concerned about leaving him in the house with an unlocked door. However, when she learned he had been shot, her first thought was to suspect her grandmother's former tenants because they were "into drugs" and had told her grandmother at the time she evicted them that "she would pay." Defendant told the detectives that "the guy that used to live there ... resembled [Bateson]."

Defendant further stated that she had known her current husband, Troy Lunbery, since 1985. During the period between 1985 and 1988, she and Bateson broke up for a period and she dated Lunbery before he went into the army. She did not reconnect with him until after Bateson's death in May 1992. Defendant also told the detectives she received about $15,000 from a life insurance policy that Bateson had through his job. About $4,000 or $5,000 of it went to pay funeral expenses.

Towards the end of the interview, after confronting defendant with a secret witness tip, an FBI profile on the case, and the inconsistencies in her story, the detectives told her they knew she did it, they just wanted to know why. Urging her to tell the truth, the detective asked her if she shot Bateson, and she responded "yes." She explained that he was asleep when she shot him and the bedroom door was already open. She recalled that Bateson's rifle was in the closet and must have been loaded, because she did not remember loading it. She remembered putting it in the car after she shot him and driving around a lot, but she did not remember what she did with the rifle. She did not plan the shooting. It was a spur of the moment thing. She and Bateson had just argued about car insurance and a bounced check before he went to sleep. However, she admitted that her call to Strickland may have been part of "a plan for her to find [Bateson]."

Upon further inquiry, defendant explained that she shot Bateson because she did not like the way he talked to her, that he was so controlling, that no one could say "hi" to her without it causing an argument or arousing "suspicion that [she] was sleeping with them...." She was "very stressed" at the time of the shooting because they were living in a small house, she was trying to take care of a three-month-old and a three-year-old, finances were tough, they lived paycheck to paycheck, and Bateson was "controlling." He would tell her "what [she] could and could not do...." He "shut [her] off from everyone" and "grabbed" her by her arms "several times," leaving bruises.

Defendant told the detectives she "just wasn't thinking right" when she shot Bateson, explaining that "if you do something like that, you're not thinking straight. I have grown a lot in the last nine years." She would "never do something like that now. And that, even doing something like that then, that's not me. That is not in me. So, I obviously was not thinking straight. I mean, I couldn't have been."

Darci Hayes, who had been defendant's best friend since the first grade, testified that they often confided in each other and discussed their relationships with the men in their lives. In 1991, the two friends saw a movie entitled "Mortal Thoughts." After seeing the movie, they had a private running joke that Darci considered to be "wives venting" about things their husbands did that irritated them. The joke began during telephone conversations after they were both married with children and before Bateson's death. The joke was whether you would ever kill your significant other if you could get away with it. It was similar to the plot of the movie. During one such conversation between defendant and Hayes, defendant complained about Bateson asking her where she was going whenever "she would get up to leave a room."

Hayes moved away from Burney in 1987. However, when she returned for Bateson's funeral, the first thing defendant said to her when they were alone was "[d]on't ever tell anyone we talked about that movie." This was the first and only time defendant made such a comment and was the last time she ever mentioned the movie. This comment was a reference to the movie "Mortal Thoughts."

B. The Defense

Defendant testified on her own behalf. She denied killing Bateson, removing a gun from the house the morning of April 17, 1992, or having any knowledge of the killing. She never had any exposure to firearms when she was growing up and never fired a gun. She denied seeing Bateson's rifle after they moved to Fir Street. Defendant's testimony concerning the events surrounding the shooting was consistent with her 1992 interview. When her grandmother Miles appeared at the mall the morning of April 17th, and told defendant that Bateson had been shot, defendant fainted. She remained very upset and emotional in the aftermath of Bateson's death, spending most of her time in bed.

Defendant first met Bateson when she was in the eighth grade. When she graduated from high school, she attended Shasta College for about a half a semester. She wanted to study early childhood education and hoped to work with kids at a preschool. Defendant loved Bateson, they had a good relationship during the marriage, and he was a good father. They had no significant problems. He was not physically abusive or controlling. They had plans to buy their own house and raise their children. Defendant's grandmother allowed them to move into her house on Fir Street rent free so they could save money for a down payment on a house.

Defendant testified that when the detectives interviewed her in 2001 she felt stressed but tried her best to help them out and to remember what she could. During the first part of the interview, the officers were "laid back and friendly," gathering details for their investigation. However, at some point, the detective told her they suspected her. While she told them she did not do it, they continued to accuse her. She became scared, nervous and overwhelmed. When the detective implored her to tell the truth for the sake of her children, his body language changed and he became more intense. She became scared because she did not know what he could do. She falsely confessed to shooting Bateson because she believed that is what the detectives wanted to hear, and as soon as she admitted shooting him, the detective's demeanor and tone changed. She thought she needed to give the detectives some information to get them to leave her house, so she falsely told them Bateson was controlling and abusive because they had already suggested that as a possible motive.

Defendant denied ever seeing the movie "Mortal Thoughts," having a running joke with Darci Hayes about that movie, or telling her that Bateson was overly possessive or concerned about her whereabouts. Defendant also denied telling Hayes at the time of the funeral not to mention the movie.

Many of defendant's family and friends testified to her passive, calm, gentle, sweet, caring and patient character, which in their opinion was completely inconsistent with someone who would shoot her husband.

(Pet., Ex. A (Opinion) at 2-11.)

IV. Petitioner's Claims

A. Ineffective Assistance of Counsel

Petitioner's first claim is that her trial counsel rendered ineffective assistance by failing to present expert testimony explaining why a person would confess to a crime she did not commit. (Pet. at 11.) Petitioner states that her trial counsel had retained an expert to explain to the jury that "innocent people do in fact confess to crimes they do not commit," but that he failed to call this expert as a witness. (Id.) She claims that this failure "constituted ineffective assistance of counsel and denied petitioner the only defense she had." (Id.)

This claim was raised for the first time in a petition for writ of habeas corpus filed in the California Supreme Court. (Respondents' Lodged Doc. No. 7.) The Supreme Court summarily denied the petition by order dated June 18, 2007. (Respondents' Lodged Doc. No. 8.) Under these circumstances, this court will independently review the record to determine whether the state court decision is objectively unreasonable. Himes, 336 F.3d at 853.

1. Legal Standards

The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally, competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).

Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).

Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "This includes a duty to . . . investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, it has been recognized that "the adversarial process will not function normally unless the defense team has done a proper investigation." Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998) (citing Kimmelman, 477 U.S. at 384). Therefore, counsel must, "at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted)). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient. See Siripongs II, 133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). "A decision not to investigate thus 'must be directly assessed for reasonableness in all the circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel "neither investigated, nor made a reasonable decision not to investigate"); Babbitt, 151 F.3d at 1173-74. A reviewing court must "examine the reasonableness of counsel's conduct 'as of the time of counsel's conduct.'" United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). Furthermore, "'ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg, 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)).

2. Merits of Petitioner's Claim

Petitioner had two trial counsel: Jeffrey Jens and Jeffrey Gorder. Prior to trial, Mr. Jens retained Dr. Richard Ofshe, an expert in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. (Pet., Ex. C.) After meeting with petitioner, Dr. Ofshe concluded that petitioner's confession was not "the product of the use of psychologically coercive interrogation tactics." (Pet., Ex. B.) However, notwithstanding this conclusion, he opined that petitioner may have confessed falsely as a reaction to the stress of the occasion. (Id.) Dr. Ofshe made the following observations:

Ms. Lunbery maintains that she is not responsible for her former husband's death and essentially explains her decision to confess as a reaction to the stress of the interrogation in combination with the pressures of the day on which the Detective visited her. Ms. Lunbery is describing a well recognized type of confession -- a stress compliant false confession.

This type of false confession comes about when persons who are exceptionally vulnerable to interpersonal pressure and are unable to cope with the intensity of even a non-coercive interrogation are put in a position from which it appears to them that the only way to end the intolerable pressure they are experiencing is to comply with the interrogator's demand for a confession.

I should mention that given what I know of the case facts, it does not appear that Ms. Lunbery revealed any verifiable information about the crime that suggested that she had actual knowledge of how her former husband was killed, nor does her confession present a particularly plausible account of the crime. The failure of a confession to fit the facts of a crime and the inability of a confessor to supply information that should be known to the perpetrator is a hallmark of a false confession.


Dr. Ofshe advised Mr. Jens to have petitioner evaluated by a psychologist who was familiar with the phenomenon of false confessions in order to determine whether she had the personality attributes that might result in a false confession. (Id.) He told Mr. Jens that a local psychologist could obtain the relevant test on the "web." (Id.) In response to this advice, Jens consulted with several local psychologists. (Pet., Ex. C.)*fn3 One of them told Jens that "even if the [test suggested by Dr. Ofshe] were valid and Kristi scored among those considered at risk to be easily manipulated he would need additional corroboration to support any conclusion that Kristi was vulnerable to manipulation techniques." (Id.) This psychologist also "pointed out that such a person should have a history of incidences which factually were based on manipulation." (Id.) With this advice in mind, Mr. Jens interviewed petitioner "and her mother several times and specifically asked about psychological, familial, ...

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