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Merlen v. Dickinson

June 30, 2010

WILLIAM RUSSELL MERLEN, PETITIONER,
v.
KATHLEEN DICKINSON*FN1, WARDEN, CALIFORNIA MEDICAL FACILITY, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The petition before the court challenges petitioner's judgment of conviction entered in Shasta County Superior Court on one count of gross vehicular manslaughter in violation of California Penal Code § 191.5(a). Petitioner seeks federal habeas relief on the grounds that: (1) expert testimony that petitioner was intoxicated was wrongly admitted; and (2) there was insufficient evidence introduced at trial to support the jury's finding of intoxication.

Upon careful consideration of the record and the applicable law, the undersigned concludes that petitioner's application for habeas corpus relief must be denied.

PROCEDURAL BACKGROUND

On November 3, 2005, a jury found petitioner guilty of gross vehicular manslaughter while intoxicated. (Notice of Lodging Documents on November 3, 2008 (Doc. No. 4), Clerk's Transcript on Appeal (CT) at 181.) Following his conviction and the Shasta County Superior Court's denial of his motion for new trial, petitioner was sentenced on January 4, 2006. (CT at 264.) Having found true the special allegation brought pursuant to California Penal Code § 191.5(d) that petitioner had been convicted of a prior offense of driving while intoxicated, the trial court sentenced petitioner to a state prison term of 15 years to life. (Id. at 264-66.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. (CT at 267.) On June 12, 2007, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 1 (hereinafter Opinion).) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 2 (hereinafter Petition).) On August 15, 2007, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 3.)

On August 21, 2008, petitioner filed the federal habeas petition now pending before the court. (Doc. No. 1.) Respondent filed an answer on November 3, 2008. (Doc. No. 7.) Petitioner has not filed a traverse. Both parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 3, 6.)

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

On July 19, 2004, at approximately 9:20 a.m., defendant drove his pickup truck across double yellow lines into the oncoming lane, causing a head-on collision that resulted in the death of James DeWitt, the driver of the other vehicle.

According to the driver of a vehicle behind defendant before the accident, defendant's truck crossed the double yellow lines twice prior to the collision such that it was entirely on the wrong side of the road. On these occasions, the truck slowly reentered the correct lane.

Redding Police Officer Bruce Bonner, who had 28 years of training and experience in recognizing symptoms of drug use and investigating incidents of driving under the influence of drugs, contacted defendant briefly at the scene of the collision. He noted that defendant, who had suffered injuries from the accident, appeared dazed, his speech was "very slow and deliberate" and his eyes were bloodshot. In addition, prescription bottles for Ambien (a sleeping pill) and Wellbutrin (an antidepressant) in defendant's name were located in his vehicle. Officer Bonner was "suspicious" that defendant may have been under the influence of drugs based on his observations of defendant and the statements regarding his driving. He mentioned this to another officer at the scene and suggested that defendant be tested.

Shortly before the accident, defendant was discovered by his half brother lying down next to the front door of his home. Defendant told him that he needed a place to stay because someone was after him, but he was unable to provide a reasonable explanation why he was being pursued. Defendant's speech was very slow and somewhat slurred, his eyes were red and he was walking slower than normally. He said he was drowsy from taking antihistamines for allergies. Defendant had been at his half brother's home the previous night for approximately an hour and had looked tired and "maybe a little out of it."

Defendant's blood was drawn approximately two hours after the accident and was found to contain Ambien and low levels of Wellbutrin and methamphetamine. FN2

FN2. Morphine, which was given to defendant by paramedics after the accident, was also found in his system.

Defendant was interviewed by another police officer at the hospital approximately two and a half hours after the accident, at which time he was coherent and able to carry on a conversation. However, defendant was not able to explain how the accident occurred, stating, "[I] was driving down the road one minute... and the next minute [I] was in an accident." When asked when he had last taken Ambien, defendant said he "had taken a few around 9:00 [a.m.]" When the officer asked defendant why he took sleeping medication before driving, defendant said, "[I] must not have taken that" and that he thought he had taken one of his other medications.

The officer who interviewed defendant at the hospital contacted him by phone approximately four months after the accident to inquire about the presence of methamphetamine in his blood. Defendant denied he had used methamphetamine and conjectured that maybe his roommate had put some of the drug in his orange juice.

Daniel Coleman, a forensic toxicologist, testified that Ambien is a "very strong depressant" that is rapidly eliminated from the body and does not build up over time. FN3 According to the manufacturer of Ambien, it remains in the system for eight hours. The window of detection of Ambien is "very limited" and "[t]he effects of the drug are very strong through that whole window." The observable effects of Ambien include drowsiness, poor coordination, poor judgment and slurred speech.

FN3. At times during his testimony, Coleman used the generic name for Ambien, which is Zolpidem. Coleman testified that the amount of Ambien in defendant's system was not quantified because the quality controls necessary to quantitate results are not commercially available for the drug. However, the testing did not indicate an "abusive level" of the drug. According to Coleman, the presence of Ambien in defendant's blood reflected recent usage, and the fact that the accident occurred an appreciable period of time before defendant's blood was drawn rendered it more likely that defendant was feeling the effects of the drug when the accident occurred. With regard to the methamphetamine in defendant's system, the amount was consistent with a small recent dosage or a less recent larger dosage. According to Coleman, paranoia -- including "[t]he feeling that someone's out to get [you]" -- is a common side effect of methamphetamine use. In addition, an individual "coming down off methamphetamine" can experience drowsiness or fatigue. Coleman testified he generally would not make a determination as to whether an individual was under the influence based on toxicology results alone. In almost all cases, it is necessary also to look at other information, such as "signs and symptoms, witness observations [and] observations by the officer." Defendant's driving pattern before the accident, as well as his slow speech and movement and his tiredness, were consistent with being under the influence of Ambien. It was Coleman's opinion that defendant was "under the influence" and "feeling the effects" of Ambien and/or methamphetamine, although Coleman was not able to render an opinion as to the extent of defendant's impairment from those substances. However, based on the fact that defendant drove his vehicle into oncoming traffic, Coleman thought it was "pretty clear... he was impaired and not driving safely."

Officer Bonner testified it was his opinion that defendant was operating a vehicle under the influence of a central nervous system depressant. His opinion was based on his observations of defendant after the accident, the statements of witnesses regarding defendant's condition and driving before the accident, the manner in which the accident occurred, defendant's ...


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