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Withern v. Alameida

January 25, 2010

DAVIDT NATHAN WITHERN, AKA RUSSELL D. BURGESS, AKA RUSSELL A. BURGESS, AKA DAVID STAR WINTERZ, PETITIONER,
v.
EDWARD S. ALAMEIDA, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2000 judgment of conviction entered against him in Sacramento Superior Court on charges of first degree murder with an enhancement for use of a knife. He seeks relief on the ground that he was mis-identified as the perpetrator and is factually innocent of the crime. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural and Factual Background*fn1

A jury convicted defendant Russell D. Burgess of first degree murder (Pen. Code, §§ 187, subd. (1), 189; further undesignated statutory references are to the Penal Code) and found he personally used a knife in the commission of the offense (§ 12022, subd. (b)(1)). In a bifurcated proceeding, the jury found defendant was sane at the time of the offense. He was sentenced to state prison for one year plus a consecutive indeterminate term of 25 years to life.

FACTS

Guilt Phase

On January 10, 1999, at around 7:00 a.m., West Sacramento police arrested defendant for breaking into and vandalizing a church. He appeared to be under the influence of alcohol but did not appear to be mentally ill. He possessed property indicating that he had also broken into a real estate office near the church.After being advised of his rights, he admitted breaking the window of a car. When he was booked into Yolo County Jail, he was wearing Airwalk tennis shoes and was in possession of an empty knife sheath.

Four days later, Volunteers of America workers examined an area beneath the L Street onramp to Interstate 5 in Sacramento where homeless people sometimes sought shelter. They found a man covered by a blanket and determined that he was dead. Police were called and directed to the body.

The deceased was identified as Robert Trobal, a homeless man. A pathologist estimated Trobal had been dead for two to three days before he was found. He had suffered 29 separate stab wounds. Some were "defensive" wounds on his hands and forearms. Others were to his chest, back, sides, neck, and head. At least two were probably inflicted post-mortem.

Numerous shoeprints were found around the body. Officers spent weeks trying to identify shoeprints, including one set that appeared to be tennis shoes.

On May 3, 1999, Sacramento police received their first lead in the case. An attorney informed a detective that she "had a possible witness" in the case. Officers interviewed the "witness," Mark Smith, aged 19, who directed them to the scene of the homicide and furnished details about the crime. Smith directed officers to West Sacramento, where he pointed out a church, a real estate office and a damaged car. Smith also directed officers to a "salvage yard," where they looked for a knife and recovered a shirt. As a result of the contact with Smith, officers obtained from the West Sacramento Police Department the Airwalk tennis shoes defendant was wearing at the time of his January arrest. Defendant was arrested pursuant to a warrant on May 31, 1999. The next morning, Detective Gene Burchett conducted a videotaped interview of him.

At the outset, defendant stated he had "been crying a lot lately," because his girlfriend had broken up with him. After discussing the breakup, defendant gave Burchett some background information on him and his family. Burchett stated he wished to talk to defendant about something "that happened back in January" to a "guy under the freeway." He suggested the matter "has probably been on [defendant's] mind for a while," and that he might want to "clean something up or to come to terms" with it. Burchett confirmed defendant had been advised of his constitutional rights before, and then advised him of his rights. Burchett asked defendant if he understood his rights. Defendant made eye contact with Burchett and shook his head "that he understands the right."

Defendant initially claimed he was "really intoxicated" the night he was arrested in West Sacramento and he remembered nothing that happened earlier that night. Burchett said Smith had put most of the blame on defendant for a murder "under the freeway." Burchett also said defendant's shoe prints were found near the body. Defendant said he was "schizophrenic" and delusional, and had been so since, as a child, his maternal aunt had put "crank" in his coffee. He was 18 years old, suffered from "self-hatred," attempted suicide on several occasions, practiced self-mutilation, had an anger control problem, especially when intoxicated, and was supposed to take an "[a]nti-psychotic" drug. He had not taken his medication for several months preceding his January arrest; after the arrest, he resumed taking his medication.

Burchett told defendant "being in denial and refusing" to "come to term with" events such as the stabbing "causes problems for [him] internally," that "denying that this thing happened" is "not a good thing for" him, and that when he "talk[s] about the truth," "that's when things start turning around for" him. Before the January arrest, defendant then said, he and his friend Mark "[g]ot good and drunk" in Old Sacramento and "started breaking things." He claimed that every time he and Mark socialized, they would "get drunk or smoke weed. And one of us will come up with a crazy idea, beating someone up for their bikes or whatever."

Burchett told defendant that he and Mark were visible on videotape from the security camera in the pedestrian undercrossing between the K Street Mall and Old Sacramento.*fn2 At that point, defendant said that on the night in question, Mark suggested they "shank someone," and he "guessed" he "agreed." They were near the undercrossing when they decided to "just shank" Trobal. They approached Trobal, who was lying down, and asked him for a cigarette. Trobal stood up and said he had none. Mark stabbed Trobal first, perhaps in the chest, and then defendant stabbed him, perhaps in the lungs. Trobal "was in pain and went down." Defendant did not remember stabbing Trobal after he went down. After the murder, defendant and Mark stole and consumed alcohol from the Delta King, then walked back to West Sacramento where defendant broke into the church and got arrested. Defendant must have lost the knife, which he kept in a sheath on his belt, before his arrest. He realized he "did something bad" and "wanted to put that night behind" him. Until he resumed his medication, he "wanted to die because of what [he] did." He was wearing his "Airwalk" tennis shoes at the time of the murder.

At the time of trial, Mark Smith was incarcerated for his part in the killing. Smith testified defendant woke up Trobal and asked him for a cigarette. Feeling threatened, Trobal stood up and "tried to throw a punch" at defendant. Defendant "pulled his knife and started stabbing" Trobal in the chest or stomach. For a reason Smith could not explain, he then pulled out his own knife and stabbed Trobal twice in the "mid to lower back area." Trobal groaned and hunched or crouched down. Defendant stabbed Trobal twice in the head and he fell to the ground. Defendant grabbed Trobal by the wrists and dragged him to the location by a fence where he was found. Then defendant straddled Trobal and stabbed him in the head, ribs, side, and stomach. At that point, Trobal was not moving at all.

Shaundra Richard, age 18, testified she was a friend, but not a girlfriend, of defendant. She met defendant on West Capitol Avenue on the afternoon of January 9, 1999. They had coffee, and defendant described "how he wanted to get a job and change his life." They went to the motel where she lived with her mother and siblings. Defendant got some alcohol and they got drunk and played video games. Shaundra fell asleep at about 11:00 p.m. When she awoke at 5:00 a.m. the next morning, defendant was there; he left shortly thereafter.

Shaundra was familiar with defendant's handwriting and identified him as the author of some writing found in his backpack ("Senseless Event," "Bed of Tomb," "Unanswerable Feat," "Repentance of a Man"). Shaundra also identified a letter defendant wrote to her from Sacramento County Jail, dated April 3, 2000, in which he stated he did not know if she "should testify ...


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