The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge Sitting by Designation
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Begoia Morgande, a California state prisoner, petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A jury convicted Morgande of first degree murder, for which he received a sentence of 50 years to life in state prison. His habeas petition challenges his state conviction on six grounds: (1) the trial court's denial of his motion to dismiss filed pursuant to California Penal Code § 1387.1; (2) admission at trial of statements that were made after Morgande requested an attorney during his interrogation; (3) admission of his wife Shelisa Nichols's statements; (4) prosecutorial misconduct; (5) admission of evidence of a similar offense without a limiting instruction; and (6) ineffective assistance of trial counsel. For the reasons discussed below, the petition is DENIED.
The facts are taken substantially from the unpublished opinion of the California Court of Appeal, First Appellate District. See People v. Morgande, 2006 WL 1454792 (Cal. Ct. App. May 26, 2006). This court presumes state court findings of fact to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Marvin Sims lived in Vacaville, California with several people, including Morgande, Morgande's future wife Shelisa Nichols (referred to as Nichols for clarity because during the relevant time period her last name was the same as petitioner's), and Diona Woods. At the time, Sims was a drug dealer, Morgande was a pimp, and Nichols and Woods were Morgande's prostitutes and lovers.
Sims was last seen alive on January 20, 1998. On March 23, 1998, a male body was found floating near a pier along Highway 37 in Solano County, California. The man had been choked to death, and his body was wrapped with a metal chain and weighted down with a 50-pound barbell plate. A large wad of paper was stuffed in the back of the man's throat. According to a pathologist, the man died by asphyxiation, probably from choking on the wadded paper, but the possibility of manual strangulation could not be ruled out. There were no signs of intoxication, and no signs of a beating, aside from one laceration on the forehead that could have occurred after death. The body was not identifiable because it had been in the water for several weeks to several months. DNA from the body was retained for future identification.
Sometime in 2000 or 2001, Woods confided in a friend, Felicia Gill. At the time, the murder was still unsolved. Gill testified that Woods told her that Morgande killed Sims. Woods said the murder occurred in a vehicle, that her daughter was in the backseat when Sims was killed, and that Sims's body "was in some water somewhere."
In April 2002, Gill relayed Woods's story to the police. The police collected DNA samples from Sims's mother and son and compared them to the DNA retained from the body recovered from the water in 1998. In October 2002, the police identified the body as Marvin Sims.
On November 12, 2002, the police interviewed Woods. She implicated herself, Morgande, and Nichols in the murder of Sims. Woods's police statement and trial testimony were consistent in their essential elements. Woods testified that she, Morgande, and Sims knew each other from San Diego, California and that the motivation for Sims's murder arose there. In San Diego, Morgande had struck Dorothy Whitney with a gun when she refused to prostitute for him in August 1997. As a result, the police arrested Morgande. While a prosecution for the offense was pending, Morgande, Woods, and Sims moved to Vacaville, California, where they lived together in early 1998. According to Woods, Morgande wanted Sims "to persuade" Whitney not to testify against Morgande in the San Diego prosecution.
Other witnesses corroborated Woods's story. Whitney testified that Sims approached her in January 1998, pulled out a gun, grabbed her arm, told her to come with him, and pulled her down the driveway of her house. Whitney escaped when her father lunged at Sims. Woods testified that Morgande was very angry with Sims for his failure to stop Whitney from testifying.
Morgande told Woods that he was going to kill Sims. In late January or early February 1998, Morgande, Woods, and Sims went to a motel in Oakland, California. The three would often go to motels together, where Sims would sell drugs, and Woods would engage in prostitution. Sims "assumed it was just the same thing as usual," and did not know that Morgande was planning to kill him.
While at the motel, Morgande or Woods telephoned Nichols and asked her to bring weights. Apparently, Morgande owned weights for weightlifting, and to chain on to his pit bulls to build the dogs' muscles.
When Nichols arrived, a chain and weights were put into Woods's car, and everyone went for a drive. Woods drove, and Nichols was in the passenger seat holding Woods's baby daughter in a car seat. Morgande and Sims were in the backseat. Morgande instructed Woods where to drive.
Woods' testimony went on to describe the killing. It was dark and late, and Morgande and Sims had both been drinking heavily. Woods looked in her rearview mirror as she drove and could "somewhat" see what was happening in the backseat. There was "a lot of struggling and arguing" in the backseat. Morgande punched Sims. Woods saw Morgande put Sims in a headlock and choke him, and she heard him say, "This nigger won't die." Woods soon knew Sims was dead when she smelled excrement.
Woods kept driving. She stopped along Highway 37 at a fishing spot with a pier. Woods had been to the fishing spot before, while she lived with Morgande and Nichols. Morgande removed Sims's body from the car, chained the body with a dog chain, and attached a round, 50-pound barbell weight plate to the chain. Morgande told Woods and Nichols to help him lift Sims's body because the body was too heavy to lift by himself. The women helped Morgande lift the body and dump it over the railing into the water.
On November 14, 2002, Morgande and Nichols, now Morgande's wife, were brought into the police station for questioning. Morgande's interview was videotaped and transcribed, but his statements were relayed to the jury through the testimony of police officers. At the start of the interview, Detective Joseph McElligott informed Morgande that he was under arrest for the murder of Marvin Sims, and read him his Miranda rights. Morgande said that he understood his rights, and asked about the evidence against him. Morgande admitted that he lived with Sims, Woods, and Nichols in 1997, and said that Sims went missing after stealing jewelry from Nichols. The police told Morgande that Sims was dead, and that they had evidence linking Morgande to Sims's death. Morgande was skeptical and asked for proof. Detective McElligott said they had DNA evidence, and proof that Morgande had an altercation with Sims.
Morgande denied any wrongdoing. As to the officer's insistence that they had evidence implicating Morgande, Morgande said, "You got a bunch of hearsay." Detective McElligott said they had more than that, and Morgande asked for details. The back-and-forth between the police and Morgande continued. Morgande, 33 years old at the time, remarked that he had "been through the court system since I was 13" and "been around the best of the best in prison" and knew that he would not have been released from prison on his last sentence if there was evidence linking him with Sims's body. The police urged Morgande to tell them what happened.
Morgande asked if his wife, Nichols, could pick up his keys and wallet from the police station. The police told Morgande that Nichols was also being questioned at the station. When Morgande asked why Nichols was arrested, Sergeant Weaver said that Nichols was involved in Sims's murder, and that there may be some liability for her but that she was cooperating with the police. Then Morgande, for the first time, asked to speak with his wife. Morgande asked if it was possible to tell Nichols that he loved her. Sergeant Weaver assured Morgande he would "try to make that happen." Sergeant Weaver then left the room.
At this juncture, after speaking with the police for about two hours, Morgande asked for a lawyer. Morgande said that there was no reason to speak with the police if they had the evidence they said they had against him. Detective McElligott asked if Morgande wanted a lawyer. Morgande said, "Hell, yeah, I want a lawyer," and then spoke on extensively, summarizing the evidence that police claimed they had against him and denying that the police possessed any evidence. Morgande said that the police only had "some-hearsay-assed-shit," and demanded to see evidence that his fingerprints were at the crime scene.
Detective Lydon entered the room at this time. He told Morgande that the police could not speak with him or present him with anything that would elicit a response from Morgande because of his request for an attorney. He also said that Morgande, on his own accord, could re-initiate conversation with the police and waive his right to an attorney.
Morgande replied, "Man, if you let me -- if you let me -- if you let me tell my wife, Man that I love her Man, and she gonna be all right and this and that Man, I'll waive what I just said, Man." Morgande told Detective Lydon that Sergeant "Weaver already said it could happen." Detective Lydon said, "We can make that happen. We can make that, I'm pretty confident, but the thing about it is, another investigator's talking to her right now and I don't want to interrupt that right this minute. But we'll make that happen for you, Ray." The police told Morgande to "collect" his thoughts and decide if he wanted to reinitiate contact with the police. Detective Lydon said he would try to arrange a visit between Morgande and his wife, but it was "not a 'deal'" for Morgande's waiver of counsel. As to the visit, Detective Lydon said, "I'll make it happen, but it's not a 'deal' for -- you have to make your decision." Morgande replied: "No, it ain't a deal. It ain't a deal. I'm not gonna go tell my lawyer, 'Yeah, I had to waive you because they let me see my wife.'"
According to officers, Morgande then waited alone in the interview room for approximately 20 minutes, and then in a holding cell for approximately 45 minutes in order to see his wife. Morgande grew impatient. He accused the police of playing games and threatened to stop speaking with the police. The police told Morgande that he would soon be able to speak with his wife.
Detective Lydon went to check on Morgande. Morgande requested a sweatshirt, coffee, and a cigarette. Detective Lydon brought the items for him. Detective Lydon then took Morgande outside to smoke. This encounter was not videotaped or transcribed, but was testified to by Detective Lydon at the hearing on the motion to suppress Morgande's police statement. According to Detective Lydon, Morgande said he was not against talking to the police, but he wanted to talk to his wife first. Detective Lydon testified: "I again reiterated that it was not a deal. We could possibly have him talk to his wife. And he said, 'Hey, I am not opposed to talking to you guys.'" The record thus does not reflect that any interrogation occurred after Morgande requested an attorney and before he met with his wife.
Morgande met with his wife after the cigarette break, and then returned to the interview room, where his conversation was taped. Detective Lydon confirmed that before the taping began, Morgande had said during the cigarette break he would speak with police. Morgande said he understood his rights. The interrogation continued. Detective Lydon told Morgande that Woods and Nichols both said Morgande killed Sims. Morgande said that he did not believe that his wife "would make up a story like that." The detective asked if Morgande would tell the truth if the detective could prove what Nichols told the police. Morgande said he would. The police then allowed Morgande to watch a portion of Nichols's interview in which Nichols said that Morgande killed Sims and revealed information about the crime. Morgande concurred in certain statements made by Nichols. He later asked to be jointly interviewed with Nichols, but the police refused. Detective Lydon reminded Morgande that he made a promise, and said, "I want you to tell me the truth."
Shortly thereafter, Morgande gave a confession. He told police that he had been on drugs and alcohol at the time and so could not recall the details of the event. Morgande said he did not know if he killed Sims, and said that he was "facing a death sentence" because he would never get out of prison. A detective remarked that Sims got a death sentence and asked Morgande what should happen to the person who killed Sims. Morgande replied, "[J]ustice should be done." When asked what justice was due to him, Morgande said that he "deserved a death sentence" if "it went down the way you guys are saying my wife said it went down." When asked what he remembered, Morgande said that he remembered being "in the Bay Area" in a motel room with Sims, Woods, and Nichols, being in Woods's car, and driving around. The interrogation ended.
On November 15, 2002, Woods was arrested and charged with murder. Woods's car was searched, but nothing of evidentiary value was recovered. The police also searched Morgande's home and storage unit. They found barbell plates, photographs of "pit-bull-type dogs," and fishing equipment. The prosecution agreed to reduce Woods's charge to manslaughter if she testified against Morgande.
Woods first testified at a preliminary hearing in June 2003, but recanted her police statement, and denied that Morgande killed Sims. The prosecution rescinded the plea agreement and charged Woods with murder and perjury. Woods admitted that she lied at the preliminary hearing because Morgande urged her, through jailhouse communications, to come up with a different story. The prosecution entered into a new plea bargain with Woods in which she pleaded guilty to manslaughter and perjury in exchange for her truthful testimony at Morgande's trial. Woods's subsequent trial testimony implicated Morgande in Sims's murder, consistent with her original police statement.
On November 18, 2002, Morgande and Nichols were first charged by complaint with Sims's murder. After the preliminary hearing, when Woods recanted her original police statements, and after several unsuccessful attempts to locate Gill, a key prosecution witness who could corroborate Woods's trial testimony with evidence of Woods's prior consistent statements, the prosecutor dismissed the case on November 7, 2003, and announced that he would refile.
On November 10, 2003, the prosecution filed a new complaint against Morgande and Nichols. The defense moved to compel discovery and complained that the prosecution had not produced DNA testing documents relating to the identification of the victim and analysis of physical evidence. The court sanctioned the prosecution by excluding DNA evidence at trial. The prosecution dismissed the ...