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Tyler Adam Dickson v. Larry Small

March 7, 2011

TYLER ADAM DICKSON, PETITIONER,
v.
LARRY SMALL, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

Petitioner, Tyler Adam Dickson, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-six years to life imprisonment after a jury convicted him of first-degree murder along with special circumstances. Petitioner raises two claims in this federal habeas petition; specifically: (1) the prosecutor had actual knowledge of, and possessed Brady material concerning a prosecution witness that was withheld from the defense ("Claim I"); and (2) the sentence was unconstitutionally disproportionate based on the nature of the offense and the nature of Petitioner ("Claim II"). For the foregoing reasons, the federal habeas petition should be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND*fn1

Prosecution

1. William Wellman

William Wellman testified for the prosecution against defendants [Sean] O'Brien and Dickson pursuant to a plea bargain. Under the terms of that agreement, Wellman agreed to testify truthfully and to plead guilty to first degree murder. The agreement was conditioned on the understanding that if the trial court determined that Wellman testified truthfully, the court would reduce Wellman's conviction to second degree murder, and the district attorney's office would recommend that Wellman be released when he was eligible for parole.

At the time of their crimes, Wellman was 20 years old, Dickson was 17; and O'Brien was 16. Wellman had been friends with Dickson for about two and a half years. They both enjoyed riding BMX bikes together. Dickson told Wellman they were going to go to a home where some people a little older than they lived, and they would steal some dirt bikes and marijuana. To carry out the plan, Wellman slept over at Dickson's house on February 25, 2003. Wellman woke up the morning of February 26, 2003, at roughly 7:00 a.m. Their plan was for Dickson to go to school that morning, then meet Wellman at a video store located at the top of Oak Hill Road. Wellman drove to the store and waited until Dickson showed up. [FN 1] By the time Dickson arrived, Wellman's truck had run out of gas, so they rode in Dickson's truck and went to the house of a friend, Shawn Santelio. They stayed there for about 20 minutes, and then they drove to defendant O'Brien's house. [FN2]

[FN 1] An Independence High School administrator stated that school started at 7:55 a.m. Records for February 26, 2003, indicated Dickson was present at the beginning of school, but he reported to the office complaining of feeling ill. A call was made at 8:08 a.m. to his home to contact a parent, but it was unsuccessful. Dickson then checked himself out of school. [FN 2] Shawn Santelio was a good friend of Dickson's and an acquaintance of Wellman's. Santelio testified that in late February 2003, Dickson and Wellman stopped by his house in the morning and asked if he wanted "to go jack some dirt bikes." He said no. He did not remember if they came over more than once that day.

Wellman had never met O'Brien prior to this time. He and Dickson stayed at O'Brien's house for about 30 to 40 minutes, talking about what was going to happen. [FN 3] O'Brien explained he thought no one would be in the home they were going to burgle. He said they would find money, marijuana, and dirt bikes there. Dickson had not known what the plan was until they discussed it with O'Brien. [FN 3] Wellman was not wearing a watch that day and had no place to be, so he "wasn't really keeping track of time." On cross-examination, he said they stayed at O'Brien's house "ten minutes at most."

These discussions took place in O'Brien's bedroom. Wellman noticed there was an aquarium in the room that contained exotic fish such as piranhas. He also noticed a couch or love seat in the room. [FN 4] [FN 4] Wellman did not know when they arrived at O'Brien's house except that it was sometime after 8:00 a.m. they had arrived.

From O'Brien's house, the trio proceeded to the Big Horn Gun Shop located on Forni Road, a trip of about five minutes. They rode in Dickson's truck, with Dickson driving. O'Brien brought along a shotgun he had wrapped in a blanket. O'Brien asked Wellman if he would buy shotgun shells, since Wellman was the only person over 18 years old.

The three went inside the gun store, and Wellman asked the clerk for some shotgun shells. He did not know what type of shells to get, so O'Brien told the clerk what they needed. The box of shells did not cost more than five dollars. The trio was inside the store no more than five minutes.

From the gun shop, the young men drove to a home located on Treasure Lane, off of Green Valley Road. Dickson drove, and O'Brien gave Dickson directions. O'Brien stated they were going to go inside when they got to the house. He also said that if anyone was there, he was going to blow them away.

Dickson pulled into the home's driveway, and he parked the truck with the front end facing the house. A white Toyota pickup was parked in the driveway. The three got out of the truck. O'Brien proceeded to the front door. He knocked twice, but no one answered. He walked back to the truck and said, "I don't think anybody is home, anybody is here." He grabbed the shotgun, and all three of the men went to the door.

The front door was open. As they walked inside, a man came out of a side bedroom holding a rifle. The man asked, "What are you doing in my house?" Wellman and Dickson quickly turned around, exited the house, and ran back to the truck. Dickson started the truck up, and as he was doing that, Wellman heard a gunshot from inside the house.

Dickson had put the truck into reverse and had started backing up when O'Brien came out of the house, waving and yelling, "He's dead." Dickson drove the truck back towards the house and got out. He left the truck running, and he told Wellman to turn the truck around. Wellman complied and then went inside the house.

Inside, Wellman saw the victim lying on the floor. Dickson was standing and holding the victim's rifle, and O'Brien was standing and holding the shotgun. Wellman grabbed a marijuana pipe from a table in the living room and put it in his pocket. He then saw Dickson and O'Brien standing in front of a door down the hallway. O'Brien said, "This is the room we want to get into." This was not the same room the victim had come out of. Wellman joined the other two. Dickson kicked open the door, and Wellman and O'Brien went into the room.

Wellman grabbed some marijuana from inside a dresser, and O'Brien took "a lot" of cash from inside a box in the dresser. Dickson then reappeared at the door, and Wellman said, "We should get out of here." The three left the house.

Once inside the truck, they put the victim's rifle and the shotgun under the seat. O'Brien took the cash out of his pocket. He tried to count it but "there was so much adrenaline" that he could not concentrate. He gave about $200 to Wellman.

While driving away on Forni Road, one of the boys suggested they get rid of the victim's rifle. Wellman told them there was a pond coming up. They stopped at the pond. O'Brien got out and threw the rifle into the water.

They then drove back to O'Brien's house. They smoked the marijuana Wellman had stolen. They agreed that they would not talk about what had happened again. After about 20 minutes, Wellman and Dickson left and went to Shawn Santelio's house. On the way there, Dickson told Wellman he was sorry for getting him into this. [FN 5] [FN 5] On cross-examination, Wellman stated he had no idea what time the three men arrived back at O'Brien's house after throwing away the rifle in the pond, but if he had to say, it was probably around 11:00 a.m. This differed from the time frames Wellman gave to investigating authorities in his first two interviews with them. In those interviews, Wellman stated that Dickson picked him up at Independence High School that morning sometime between 10:00 a.m. and 11:00 a.m., and that they threw the rifle into the pond sometimes between 1:30 p.m. and 2:00 p.m. The jury saw a videotape of the first interview and heard an audiotape of the second interview.

2. Jesse Pine

Jesse Pine resided at the Treasure Lane home in February 2003. The house had two levels, a main level and then a basement. The garage was in the basement level. Three dirt bikes, one street motorcycle, and a few jet skis were stored in the garage. Pine lived at the Treasure Lane home with Tim Dreher, Eric Rootness, and Kyle Smelser. Pine's and Smelser's bedrooms were located on the main floor across the hall from each other. Smelser's bedroom windows looked out the front door of the house towards the driveway and the stairway leading to the house. Smelser owned an off-white Toyota pickup.

At that time, Pine used marijuana, and he sold it to his roommates and friends. One person to whom he sold the drug on occasion was Rootness's stepbrother, Frankie Silici. Silici would come to the Treasure Lane house to purchase marijuana. Oftentimes, Silici would bring a friend or two with him. One of the friends he brought to the house was defendant O'Brien. Pine did not know Wellman or Dickson, and he had no knowledge that either of them had ever visited his house.

Pine left the house for work on February 26, 2003, at around 6:40 a.m. He locked his bedroom door before leaving. Smelser's truck was parked in the driveway when he left. Pine returned home from work at about 3:50 p.m. that day. Smelser's truck was still parked in the same location. Pine was surprised to find the home's front door wide open.

Upon walking in the house, Pine saw Smelser lying on the floor. He ran over and discovered that Smelser had been shot. He began running around the house, looking for anyone and anything. In Smelser's bedroom, he saw an empty gun case on the bed. He noticed the door to his own bedroom had been kicked open. $3,000 in cash was missing from inside his dresser drawer. A large amount of marijuana that he stored in his backpack was still in his room, but his marijuana pipe that he kept on a table in the living room was missing. Pine called 911.

3. The investigation

Deputy Jim Applegate from the El Dorado Sheriff's Department was the first law enforcement officer to arrive at the scene. He found the victim lying on the floor with a gunshot would to the left side of his head. The body was cool to the touch. Applegate noticed the beginning of lividity, or pooling of the blood, in the victim's fingers.

At approximately 6:00 p.m. on February 26, 2003, forensic pathologist Curtis Rollins, M.D., arrived at the crime scene and examined the victim's body. He concluded the victim had died from a shotgun wound to the head. Death had occurred approximately six to eight hours prior, or between 10:30 a.m. and 12:30 p.m. that day, and more likely closer to 12:30 p.m. He also concluded the distance between the end of the firing gun's barrel and the victim was between three and four feet.

During the autopsy, Dr. Rollins recovered a plastic shot cup or shot-wad from the wound. He explained the shot-wad is a component of the shotgun shell that is used to hold the pellets together until it opens and lets the pellets out. Dr. Rollins also recovered numerous bird shot pellets.

Detective Paul Moschini of the El Dorado County Sheriff's Department interviewed defendant Dickson on March 4, 2003. Dickson had requested the interview. In this interview, Dickson did not admit to any personal involvement in the killing. Moschini interviewed Dickson a second time on March 7, 2003. At that time, Dickson admitted to going to the Treasure Lane house where Smelser was murdered. Dickson said he went there to "rip off" dirt bikes, money, and marijuana. He drove his own truck to the house. He had never been to the house before.

Dickson told Moschini that when he arrived at the house, a white Toyota pickup truck was parked in the driveway. Dickson stated that after he entered the house, a man came out of a room wearing a dark pair of pants but no shirt. He was carrying a .22 rifle. The man said, "What the fuck are you doing here?" Thinking there was going to be a gunfight, Dickson ran out of the house. After leaving the house, Dickson said, he went to a pond located on Forni Road for the purpose of throwing away the .22 rifle.

Dickson informed Moschini that Wellman was with him when this happened. Dickson had called Wellman and asked him to come along for reassurance because he did not want anything to go wrong. Dickson showed Moschini the location from where the rifle was thrown into the pond. After Dickson showed Moschini the pond, he took the detective to Wellman. Moschini arrested Wellman.

Deputy sheriffs searched the pond off Forni Road to locate the gun. The divers located the rifle in six feet of water about 17 feet off the shore and near a turnout from the road. The weapon was a Winchester .22 caliber long rifle. It was not loaded.

4. J.D. Petty

Jonathan or "J.D." Petty was a friend of O'Brien's from when the two attended Union Mine High School. They would hang out together all day. Petty also was an acquaintance of Dickson's from school, but he did not know Dickson very well. In February 2003, Petty loaned O'Brien a .20 gauge shotgun. He thought it was either a Winchester or a Remington.

The day before he loaned the gun to O'Brien, Petty had been at O'Brien's house. O'Brien had a box of clay pigeons in his room. He told Petty that he and a couple of his cousins were going trapshooting the next day and they were short one gun. He asked Petty if he could borrow his gun. Petty agreed to drop it off the next day on his way to school.

Petty gave the gun to O'Brien the next morning. Petty called O'Brien from his cell phone at 7:55 a.m. on February 26 when he arrived at O'Brien's driveway. After Petty pulled up to the house, O'Brien came out and got the gun. The gun was wrapped in blankets or beach towels. Dried mud was caked on the butt of the stock from when Petty had used the gun for duck hunting.

At 11:25 a.m. that same day, O'Brien called Petty and left Petty a message to call back. Petty did so at 11:28 a.m. O'Brien told Petty he could pick up the shotgun. Petty went to O'Brien's house after school to retrieve the gun. Two friends of his, Clifton Sargent and Michael Carrick, were there when he arrived. O'Brien gave Petty the gun and the towels separately. The gun appeared to have been wiped down. There was no mud on the stock. [FN 6] [FN 6] The Independence High School administrator confirmed that Petty attended school on February 26 from 7:55 a.m., the time school started, until 2:00 p.m.

O'Brien also gave Petty a box of Winchester .20 gauge shotgun shells. The box's price tag indicated it had been purchased at the Big Horn Gun Shop. One shell was missing from the box. Petty asked O'Brien about the missing shell. O'Brien said he had shot it into a hillside to see what it would do. This explanation did not seem right to Petty because of the way O'Brien had spoken about going trapshooting with his cousins. He thought O'Brien would know what a shotgun would do if he shot it into a hill.

Over the next few days, Petty heard of the killing, and he began hearing rumors that O'Brien was the person who did it. He connected these rumors with the fact that one shell was missing from the box of ammunition O'Brien gave him, and, with his friends Sargent and Carrick, "kind of put things together." Worried that he possessed the murder weapon, Petty, along with Sargent and Carrick, went to a relative's property, smashed the shotgun on a rock, and threw the broken pieces into a ravine. They also threw the ammunition and its box into the ravine.

Later, Petty showed Detective Paul Moschini where he had disposed of the gun, and he assisted the detective in searching the area. Moschini recovered parts of the shotgun, 13 shotgun shells, and a gray Winchester shotgun shell box that had a price tag of $4.99 from Big Horn Gun Shop. [FN 7]

[FN 7] Terry Fickies, a criminalist for the state Attorney General, compared the shot-wad and the pellets recovered from the victim by pathologist Dr. Rollins to one of the recovered unfired Winchester shotgun shells. Fickies determined the wadding was consistent in color, composition, and design to the wadding from the unfired shell. He also concluded the pellets recovered from the victim were consistent with the pellets from the live round.

5. Frankie Silici

Frankie Silici, Eric Rootness's stepbrother, was a friend of O'Brien's. In early 2003, they were hanging out together nearly every day. Silici testified that prior to February 2003, he had taken O'Brien to the Treasure Lane home on two occasions. On both occasions, he purchased marijuana from Pine. He also took O'Brien down into the home's garage to see Rootness's new motorcycle.

On February 26, 2003, Silici called O'Brien's home telephone number at 10:11 a.m. from his cell phone. O'Brien did not have a cell phone at that time of which Silici was aware. Silici did not testify as to the contents of this first phone call or whether he actually reached O'Brien. O'Brien called Silici's cell phone that same day at 11:45 a.m. and left a message indicating he did not have any marijuana. O'Brien called Silici again at 12:17 p.m. indicating he now had marijuana.

6. Chantell Michaud

Chantell Michaud was a close friend of O'Brien's. She would speak with him on the phone a few times a week. On February 26, 2003, she called O'Brien at his home at about 10:30 a.m. and spoke with him. O'Brien told her he was going to get some marijuana, money and dirt bikes that day. He said the place where he would get these things had roommates but he did not think they would be home. He told Michaud he was leaving after their phone call.

Michaud spoke with O'Brien that evening at about 6:00 or 7:00 p.m. She asked him if everything had gone okay. O'Brien said, "No, it didn't go okay." He told her he did not want to talk about it over the phone.

Later that evening, Michaud saw a report of Smelser's murder on the television news. The next day, she called O'Brien and tried to discuss the news report with him. He acknowledged he had seen the news report. She asked him if that was what went wrong the day before. He did not answer her. In an interview prior to trial and shortly after the crime, Michaud told sheriff's detectives that O'Brien had actually answered her question. When she asked if the murder was what went wrong, O'Brien said, "Yeah." "Pretty much."

7. Richard Anschutz

Richard Anschutz was a close friend of O'Brien's. O'Brien called Anschutz at 11:31 a.m., February 26, 2003, and left a message. Anschutz returned the call at 11:34 a.m. During that conversation, O'Brien told Anschutz he had $2,500 and wanted to purchase some marijuana. Anschutz asked O'Brien where he got the money. O'Brien said, "I don't want to tell you over the phone."

Anschutz and O'Brien spoke again with each other at 12:06 p.m., 12:11 p.m., and 6:00 p.m. that day. All of these calls concerned Anschutz's efforts to find someone to sell O'Brien some marijuana. During either the 6:00 p.m. call or another call two days later, O'Brien informed Anschutz that he no longer needed marijuana.

8. Richard Lacerte

Richard Lacerte was another good friend of O'Brien's. Their families socialized and traveled together. O'Brien called Lacerte at 11:32 a.m. on February 26, 2003. Lacerte returned the call at 11:47 a.m. to O'Brien's home. Telephone records for that same date show Lacerte called O'Brien at 5:37 p.m. and O'Brien called Lacerte at 9:30 p.m. During one of those conversations, O'Brien told Lacerte that he had a "couple grand" and was going to purchase some marijuana. He did not explain how he obtained the money, nor did he ask Lacerte if he knew where he could buy the drugs. Also during one of those calls, O'Brien explained that his mother had found his marijuana pipes, and she was going to send him to school in Oregon.

9. Amanda O'Brien

Amanda O'Brien is defendant O'Brien's sister. She and O'Brien had originally planned for her to stop by O'Brien's house on February 26, 2003, at 1:30 p.m. so that O'Brien could install a stereo in her car. At 11:47 a.m. on that same day, O'Brien called Amanda and asked her to come by earlier. She and her daughter arrived at the house sometime between 12:15 p.m. and 12:30 p.m. that afternoon.

When she arrived, O'Brien was on the front porch smoking marijuana with Clifton Sargent, Michael Carrick, and Treva Fudge. She had not met any of these people before that day. A few minutes after she arrived, Carrick took Fudge back to school. At around 1:00 p.m., they ordered pizza from Round Table Pizza. Carrick left to pick up the pizza at approximately 1:15 p.m., and returned some 45 minutes later, an unusually long time to make that trip. Amanda left the house around 2:30 p.m.

10. Clifton Sargent

Clifton Sargent was a friend of O'Brien's through J.D. Petty, and he was an acquaintance of Dickson's from school. He was also Michael Carrick's cousin. [FN 8] On February 26, 2003, Sargent went to O'Brien's house around noon. Carrick was there, as was O'Brien's sister Amanda, and a small child. At one point, O'Brien took Sargent aside and showed him a "wad of cash." Sargent asked O'Brien where he got it. O'Brien said he killed someone for it. Sargent thought O'Brien was joking and he laughed. Sargent did not tell Petty or Carrick about O'Brien's comment because he did not believe it. [FN 8] At trial, Carrick asserted his Fifth Amendment privilege and did not testify.

Sargent stayed at O'Brien's house for a couple of hours. He watched O'Brien install a stereo into Amanda's car. They ordered a pizza and hung out. Sargent also saw O'Brien give a shotgun and a box of ammunition to J.D. Petty. He thought this occurred around the day of the car stereo installation or within the next ...


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