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Chiu v. Kirkland

April 13, 2009

JEREMY DUT HING CHIU, PETITIONER,
v.
RICHARD KIRKLAND, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Jeremy Dut Hing Chiu is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner was convicted of murder with special circumstances and other offenses in the Sacramento County Superior Court, case 01F06209, and received a sentence of life without the possibility of parole in addition to an 18 year term, with an additional sentence enhancement of 25 years to life. In his petition, he claims that (A) the trial court abused its discretion in denying his motion to sever the counts relating to separate incidents for trial; (B) the trial court abused its discretion in denying his motion to redact taped jail conversations; (C) he received ineffective assistance of counsel at trial; (D) the prosecutor knowingly put on perjured testimony; (E) the sentence imposed is cruel and unusual punishment and violates double jeopardy principles; and (F) he was denied due process of law when the trial court conducted insufficient voir dire. For the reasons that follow, the claims are without merit.

II. BACKGROUND

The following background summary was set forth in the unpublished opinion of the California Court of Appeal, Third District, No. C0141191. Petitioner is the defendant referred to therein.

Counts One and Two (Pacesetter offenses)

In the early afternoon of Friday, May 11, 2001, Nick Ly was shot and killed by an assailant who tried to rob him. Ly worked for a catering lunch truck business that was selling food at the Pacesetter Corporation. Friday was "payday" for Pacesetter employees, and on those days the lunch truck would often carry around $5,000 to cash the employees' paychecks. The lunch truck made two half-hour stops at Pacesetter on every business day, at 10:40 a.m. and 1:00 p.m.

Two witnesses, Ken T. And Johnny C., saw the attempted robbery and shooting. The two provided similar general descriptions of the assailant-- a man between 5 feet 9 inches and 6 feet tall, having long dark curly hair and weighing between 250 and 300 pounds. Defendant fit this description as far as it went. These two witnesses also apparently saw the getaway car-- an older blue compact car resembling a Dodge Colt, that was being driven by a white male with blond/rust hair. A co-defendant, Ted Cole, was charged with counts one and two and tried jointly with defendant Chiu.*fn1 [ ] Cole and his car matched th[e] general description [of the driver and the getaway car]. Ken T. also saw the assailant's gun, which was a revolver.

There was a third witness, Greg M., who was not present at the robbery/shooting, but who was important in other ways. On the day of the shooting, M. dropped his daughter off at work at Pacesetter just before 11:00 a.m. After his daughter informed him that the lunch truck operators often extended credit to Pacesetter workers, M. decided to inquire whether they were interested in buying Visa/Mastercard services for him. M. Parked his car and noticed an older blue car nearby. This older car resembled a Dodge Colt or Geo Metro and had two men in it. One of the men was white with dirty blond hair and a trimmed mustache. The other man, whom M. later passed in the breezeway "in real close proximity," "almost bumping shoulders," was described by M. generally along the lines of the general description provided by Ken T. and Johnny C.*fn2 The two men in the older blue car did not leave during the entire 20-plus minutes that M. was on the scene and talking to the lunch truck operators (one of these operators was the eventual victim, Ly). As M. left, the white man approached the truck.

In July 2001, M. helped the police develop a composite sketch of the man whom he passed in "real close proximity" on the morning of the shooting. This sketch was published in the Sacramento Bee on July 27, along with an article about the shooting and an offer of a $7,500 reward for information leading to the perpetrator's arrest and conviction.

In August 2001, M. viewed photo lineups of defendant and Cole, and defendant's photo "jumped out" at him. Said M.: "That was the gentleman I passed in the breezeway [on the day of the shooting],... I recognized him right away." M. picked out Cole's photo as well, describing it as being "the closest." At trial, M. positively identified defendant and Cole as the occupants of the older blue car that M. saw parked near him on the morning of the shooting.

At the end of July 2001, Frank Blattel informed the police, at first anonymously, that his ex-daughter-in-law, Venus, may have been involved or have information about the crime.

Venus subsequently provided information to the police about the Pacesetter shooting in exchange for a dismissal of charges against her (petty theft with a prior and possession of a hypodermic needle); she also admitted her role in the crime and inquired about the reward. At trial, Venus testified under a grant of immunity. Venus is a cousin of Ted Cole and his sister, Angel Leandro; Leandro was defendant's girlfriend. For about a month, all four of them roomed together until Venus was asked to move out, leaving her homeless and angry, according to Leandro.

For three or four months in 2000, Venus worked at Pacesetter and cashed her paychecks every Friday at the lunch truck. About one month before the shooting, Venus informed defendant and Cole about the truck and they discussed robbing its occupants. None of them was working at the time and they were all using substantial amounts of methamphetamine daily.

Venus acknowledged playing a role in the Pacesetter robbery/shooting. [ ] On that day, she followed defendant and Cole to a parking lot about a half-mile from Pacesetter; defendant and Cole were in Cole's blue Mitsubishi (which was akin to a Dodge Colt), and she was in defendant's red Jeep Wrangler. The two men left and then returned about 20 to 25 minutes later. Upon their return, the two men switched to the jeep and had Venus drive the Mitsubishi by putting a license plate back on it. She claimed at that time she was not aware of the robbery.

Later, defendant told Venus about the botched robbery at Pacesetter, acknowledging that he "had to shoot the guy." He also told Venus that he had changed clothes after switching cars, and that he had thrown away on some side street the gun that he had used. Defendant was quite concerned that someone would find the weapon.

At the behest of the police, Venus twice in early August 2001 visited defendant in jail; he was there on another charge. Their conversations were recorded, and defendant made some incriminating remarks. These taped conversations were played for the jury, accompanied by transcripts.

Venus's mother, Dawn Gerlach, testified that Venus contacted her right after the Sacramento Bee's article appeared. Venus told Gerlach about what had happened while she waited in the parking lot on the day of the shooting. Gerlach replied that Venus had to report the incident. Later, Venus informed Gerlach that she might get the reward Counts Three, Four, and Five (Del Taco offenses)

On July 18, 2001, about 12:40 p.m., a man robbed the cashier of a Del Taco restaurant from the drive-through lane. The man was in a red Jeep Wrangler and armed with a handgun. The cashier who was robbed, Abigail J., positively identified defendant as a robber. Two other Del Taco employees, Mark L. And Benjamin S., strongly linked defendant to the robbery through descriptions of the robber, his red Jeep Wrangler, and his shirt (a sports jersey). Immediately after the robbery, David B., an employee at the gas station across from the Del Taco, saw defendant, who appeared panicky, pull into the station in a red jeep and change out of the sports jersey described by the Del Taco witnesses. B. positively identified defendant from a photo lineup and in court as the person he saw in the red jeep.

The day after the Del Taco robbery, a police officer in a marked car, who had been given a description of the robber and his car, spotted defendant in the red Jeep and, with backup, signaled defendant to stop. Defendant recklessly, but unsuccessfully, tried to evade the officers. The police found a fully loaded .357 -caliber revolver in the Jeep; more likely than ...


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