FINDINGS AND RECOMMENDATIONS
Petitioner Stephen Long is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the Shasta County Superior Court, case number 04F2750, for second degree murder, gross vehicular manslaughter while intoxicated, and failure to stop at the scene of an accident causing death.
A. The trial judge improperly instructed the jury regarding consciousness;
B. The trial judge improperly instructed the jury regarding intoxication;
C. The prosecutor committed misconduct;
D. The trial court erred in denying a motion for a new trial; and
E. The trial court unconstitutionally shackled him during trial.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
On April 10, 2004, at approximately 11:15 p.m., Jana Barletto was driving southbound on Airport Road in Shasta County. A silver pickup truck suddenly came up close behind her. A double yellow line separated the road's two lanes. The truck crossed the double line into the northbound traffic lane and passed Barletto at a speed much higher than the road's posted speed limit of 50 miles per hour.
Norman Tomlinson pulled onto southbound Airport Road, and noticed a vehicle ahead of him cross the double line and pass a couple of cars at a high rate of speed. Ryan King was driving southbound on a frontage road next to Airport Road at about 70 miles per hour. A silver Chevy pickup truck on Airport Road passed him. Both Tomlinson and Ryan saw a cloud of dust as the truck's passenger side went over the road's edge where the road curved to the left before it intersects with Meadow View Road.
At the same time, Paul Saunders was driving northbound on Airport Road south of the intersection with Meadow View. Saunders was driving at about 55 miles per hour behind a Camaro. As the two cars approached the intersection, Saunders saw a silver truck speeding towards him. As the Camaro was reaching the intersection, the truck failed to negotiate a curve and veered off the corner of the intersection to its right a couple of feet. Then the truck cut back across Airport Road through the middle of the intersection into the northbound lane, and hit the Camaro head on. Saunders braked hard and swerved as the truck spun past him. Saunders got out of his car and ran into the intersection to stop traffic. He saw the driver of the pickup truck get out of the vehicle. The driver stumbled first to the back of the truck, then over to the Camaro. Saunders yelled at the driver to see if he was okay and if the person in the Camaro was okay. The driver did not answer. The driver stumbled up to the Camaro, stuck a hand into it, brought his hand back out, then circled the Camaro. By this time, the Camaro was on fire. Saunders had to turn around to stop more traffic. When he looked back, the pickup driver was gone. Tomlinson arrived at the scene about one minute after seeing the pickup truck passing cars ahead of him. The Camaro was on fire. Tomlinson saw a male inside the car who appeared unconscious. He tried to kick dirt onto the flames. He saw a person wearing a white shirt and shorts face the truck, then walk to the Camaro and peer in. A few moments later, the man was gone. Tomlinson saw a person wearing a white shirt and shorts walking away from the scene down Airport Road.
Tomlinson called 911. He could not get the unconscious driver out of the Camaro. He reached in and touched the driver's neck to detect a pulse. He felt nothing.
King witnessed the accident and also called 911. Barletto also arrived on the scene. She saw the Camaro on fire, and also saw the silver pickup truck that had passed her. She and others helped put the fire out using bottled water from her car and a fire extinguisher. It took more than an hour for fire personnel to extract the driver from the Camaro. He was identified from his driver's license as 17-year-old Travis Bosse, and was pronounced dead at the scene. The victim sustained numerous lacerations, abrasions and contusions on his head and body, and died of multiple blunt force injuries to multiple organs.
Upon arriving at the scene, the police could not find the driver of the pickup truck. They determined the truck was registered to defendant. Saunders gave police a description of the driver and told them he could recognize him if he saw him again.
At about 1:11 a.m., Deputy Sheriff Tyler Thompson came upon defendant, who was walking down the middle of Meadowlark Road. Defendant was wearing a T-shirt and shorts. The shirt was torn and had dried blood markings on it. Defendant had lacerations on his arms and legs. His eyes were red and watery, his speech was slurred, and his breath smelled of alcohol. Defendant stated he had lost his wallet earlier that day at the Win-River Casino, and he was looking for it. He asked if the officers had found it.
Officers brought Saunders to the location where defendant was detained, and Saunders identified defendant as the driver of the silver truck that collided with the Camaro. Defendant conceded at trial he was responsible for the accident and the victim's death.
A blood sample was taken from defendant at 2:35 a.m., approximately three hours after the accident. The sample had a blood-alcohol concentration of .12 percent. A criminalist testified a blood-alcohol level of .12 percent would be consistent with a 190-pound man drinking eight beers in an hour. Defendant's level would actually have been higher at the time of the accident. With a level of .12 percent, a person would be too impaired to drive a motor vehicle safely.
After his arrest, defendant informed officers he showed a vehicle at a car show that day at the Win-River Casino from 9:00 a.m. to 4:00 p.m. He drank four 12-ounce beers at the show between noon and 4:00 p.m. His wallet was lost there, so he called credit card companies and his bank when he arrived home. He sat down to watch television, and then did not remember anything until he met the police while walking towards his parents' house. He did not know how he got his injuries. He stated his vehicles were at home. He also stated he did not consume any alcohol after leaving the casino.
Officers told defendant a witness had identified him as the person in a silver truck that collided with a Camaro on Airport Road and then left the scene. Defendant insisted he could not have done that. He maintained he had not driven that evening. Officers explained he had killed a 17-year-old boy. Defendant continued to state he had not driven that night and did not remember a collision. The surveillance videotape from the Win-River Casino depicted defendant attending a car show held at the casino's parking lot on April 10, 2004. He arrived at 8:12 a.m. The tape recorded defendant going to the security office to report his lost wallet. At 3:32 p.m ., defendant went to a bar in the casino. He left the casino property at 3:51 p.m.
Two bartenders from the Hen House, a bar in Redding testified at trial. The first, Lisa Tafoya, worked the day shift on April 10, 2004. She testified defendant came into the bar alone around 5:00 p .m. on the day of the accident. Tafoya allowed defendant to cash a check for $10 because he said his wallet had been stolen or lost at a car show. She served defendant two bottles of beer before her shift ended at 6:00 p.m.
The second bartender, Donna Schulte, replaced Tafoya at 6:00 p.m. She, too, cashed a check for defendant, this one in the amount of $20. She served defendant five 12-ounce beers. Defendant did not finish the fifth. He left the bar around 10:30 or 10:45 p.m. Officers were unable to determine whether defendant obtained more alcohol between the time he left the Hen House and the collision. Interviewed by officers three days after the collision, defendant claimed he did not remember, and he did not admit, driving his silver pickup after the car show, going to the Hen House, or being involved in a collision. Responding to officers' questions, defendant stated he never had blackouts, had never drunk to the point of having a blackout, and had never been diagnosed with diabetes.
From their investigation, officers determined defendant was traveling at a speed of 72 miles per hour five seconds before the collision. He did not take his foot off the accelerator until two seconds before the collision. During those last two seconds, defendant steered the truck sharply to the left. He oversteered, and the truck began to spin out of control. At the time of impact, the truck was traveling at about 65 miles per hour. Defendant never stepped on the brake.
Defendant has two prior convictions for driving under the influence. In 1993, he pleaded guilty to driving under the influence in violation of Vehicle Code section 23152, subdivision (a). As part of his probation, he attended and completed a four-month educational program for DUI offenders.
In 2001, defendant pleaded no contest to driving under the influence with a blood-alcohol level of .08 percent or more in violation of Vehicle Code section 23152, subdivision (b). He also admitted a special allegation under Vehicle Code section 23578 that his blood-alcohol level was .20 percent or more. As a condition of his 36-month probation, defendant attended and completed a six-month educational program for DUI offenders who drove with a blood-alcohol level of .20 or more.
Defendant was still on probation on April 10, 2004, when this accident occurred. As a condition of that probation, defendant had agreed not to drive with any measurable amount of alcohol in his system.
Two individuals who conversed with defendant at the Hen House bar that evening testified defendant did not appear intoxicated to them. The Hen House bartenders also testified defendant did not appear to them to be intoxicated.
Defendant challenged the accuracy of the blood-alcohol test. The blood sample was not refrigerated from the time police dropped it into the mailbox on April 11 until it was received at the lab on April 13. Expert witnesses for defendant testified the blood could ferment if there was insufficient preservative or a lack of refrigeration, causing the production of alcohol in the blood sample and raising the alcohol content to a level higher than what existed at the time the sample was taken.
One expert, a forensic alcohol analyst, testified that if a 46-year-old, 190-pound individual drank six 12-ounce beers between 5:00 p.m. and 11:00 p.m., his blood-alcohol level at 11:15 p.m. would be approximately .04 percent.
Defense expert witnesses testified a diabetic experiencing an episode of low blood sugar, or hypoglycemia, can experience a sudden onset of many of the symptoms of intoxication, including slurred speech, motor imbalance, and unconsciousness. One expert stated hypoglycemia may cause a process called ketosis, in which the body metabolizes fatty acids. That process may produce measurable alcohol in the body.
Defendant's physician, Dr. John Moore, testified he performed a glucose tolerance test on defendant in May 2004 after the collision, and for the first time diagnosed defendant as having impaired glucose intolerance and suffering from metabolic syndrome. Metabolic syndrome is a prediabetic condition that consists of mild obesity, hypertension, elevated triglycerides, low good cholesterol or HDL, and commonly an impairment of blood sugar control to some extent. A person with metabolic syndrome who consumes alcohol without eating food could suffer a hypoglycemic episode. Based on the blood test, his prior knowledge of defendant's medical condition, his physical examination of defendant, and defendant's description of the events, Moore testified it was his opinion defendant suffered a hypoglycemic episode at the time of the collision and lost consciousness. Defendant's loss of consciousness could explain why he lost control of the truck and also why he had no memory of the events. The memory loss could last until the blood sugar was raised again, such as by a stress event like the collision. Memory loss after the collision thus would not have been caused by a hypoglycemic episode. Also, an extended memory loss from 5:30 p.m. to 2:30 a.m. the next day suffered by someone such as defendant would not be caused by a hypoglycemic episode, although an episode could occur at some point during that period of time.
On February 9, 2005, the jury found petitioner guilty of murder in the second degree, vehicular manslaughter while intoxicated, and hit and run causing death or permanent serious injury. Reporter's Transcript ("RT") at 1579-80. The jury also found true an allegation of hit and run during the commission of a gross vehicular manslaughter while intoxicated. Id. at 1579. The trial judge sentenced petitioner to a term of 15 years to life, plus a consecutive term of four years. Id. at 1625.
B. Post Trial Proceedings
Petitioner filed a timely appeal with the California Court of Appeal, Third Appellate District on October 14, 2005. Answer, Lodged Doc. 1 at 1. That appeal was denied in a reasoned opinion on November 6, 2006. Opinion at 31. On December 1, 2006, petitioner petitioned the California Supreme Court for review of that decision. Answer, Lodged Doc. 5. The California Supreme Court summarily denied that petition on February 23, 2007. Answer, Lodged Doc. 6. Petitioner filed this federal petition on March 17, 2008.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court ...