The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
DEATH PENALTY CASE ORDER:
(1) DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT AND/OR AN EVIDENTIARY HEARING ON CLAIMS 27-28 AND 36-38 [Doc. No.68]; (2) DENYING RESPONDENT'S REQUEST TO DISMISS CLAIMS 21- 22 AND 24-26 ON THE BASIS OF PROCEDURAL DEFAULT; AND (3) DENYING HABEAS RELIEF ON CLAIMS 21-22, 24-28, 34, AND 36-38
Petitioner has filed a motion for summary judgment, or in the alternative, for an evidentiary hearing, on Claims 27-28 and 36-38.*fn1 (Doc. No. 68.) Of the claims adjudicated in this Order, Respondent: (1) requests that the Court dismiss Claims 21-22 and 24-26 on the basis of state procedural bars; (2) opposes Petitioner's motion for summary judgment; and (3) requests dismissal of all claims. Given the extensive briefing and the nature of the claims, the Court finds these issues fully suitable for decision on the papers without oral argument. For the reasons discussed below, Respondent's request for dismissal of Claims 21-22 and 24-26 on procedural default grounds is DENIED, Petitioner's motion for summary judgment and/or evidentiary hearing on Claims 27-28 and 36-38 is DENIED, and habeas relief is DENIED as to Claims 21-22, 24-28, 34, and 36-38.
By an Information filed on December 31, 1986, Petitioner Terry Bemore and co-defendant Keith Cosby were charged with the robbery and burglary of the Aztec Liquor Store in San Diego and the murder of Kenneth Muck, on August 26, 1985. Petitioner was arraigned on January 6, 1989, on an amended Information charging him with burglary, robbery and murder. Petitioner's case was later severed from that of Mr. Cosby.
Petitioner was convicted on June 6, 1989, of one count of first-degree murder (Cal. Penal Code § 187), one count of robbery (Cal. Penal Code § 211), and one count of burglary (Cal. Penal Code § 459). In addition, the jury found true two special circumstance allegations--murder in the commission of a robbery (Cal. Penal Code § 190.2(a)(17)(i)) and murder involving the infliction of torture (Cal. Penal Code § 190.2(a)(18)). On August 7, 1989, the jury returned a verdict of death. On November 2, 1989, the trial court denied Petitioner's motions for a new trial and for modification of the sentence, and sentenced him to death.
On automatic appeal (hereinafter "direct appeal") of this conviction and judgment to the California Supreme Court, Petitioner filed an opening brief on February 18, 1998. Petitioner also filed a reply brief on May 29, 1998. The California Supreme Court affirmed Petitioner's conviction and sentence in a decision issued on April 20, 2000. People v. Bemore, 22 Cal.4th 809');">22 Cal. 4th 809 (2000). On June 21, 2000, the California Supreme Court denied Petitioner's request for a rehearing, and on January 8, 2001, the Supreme Court of the United States denied his petition for a writ of certiorari.
On June 19, 2000, Petitioner filed a habeas petition with the California Supreme Court. Petitioner also filed a reply brief on October 27, 2000. The petition was denied on October 17, 2007, without an evidentiary hearing.
On January 13, 2009, Petitioner filed his Petition for a Writ of Habeas Corpus and attached exhibits with this Court, the operative pleading in this action.*fn2 On March 4, 2009, Respondent filed a Motion to Dismiss for Failure to Exhaust, and on June 9, 2009, the Court issued an order holding that Claim 35 was the only unexhausted claim in the federal petition, and directing the parties to confer and discuss whether an agreement could be reached on how to proceed. On August 10, 2009, Petitioner filed a status report stating his intention to withdraw Claim 35 from the federal petition and proceed on the remaining claims. On November 4, 2009, Respondent filed an Answer.
On March 17, 2010, Petitioner filed a Motion for Summary Judgment on Claims 27, 28, 36, 37, and 38 of the Petition ["Mot."], Opening Brief ["Pet. Brief"], and a Motion for an Evidentiary Hearing on Claims 1-20, 23, and 30-33 of the Petition. On June 7, 2010, Respondent filed a Merits Brief Opposing Petitioner's Motions ["Opp."], and on August 4, 2010, Petitioner filed a Reply.
The Court refers the parties to the lengthy statement of evidence issued by the California Supreme Court in Bemore, 22 Cal. 4th at 817-34. The California Supreme Court's factual findings are presumptively reasonable and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).
In order to provide a context for the Court's discussion of Petitioner's habeas claims, set forth below is a summary of evidence presented during the guilt and penalty phases.
There was little conclusive physical evidence linking Petitioner to the homicide, but some physical evidence linking him to the robbery and its proceeds. Shoe prints were found at the crime scene that were similar to Petitioner's shoe size and type, but the shoes found in Petitioner's car and possession did not match the prints at the scene. Hair evidence found at the scene was not matched to Petitioner, and blood evidence was inconclusive, as Petitioner and the victim had the same blood type. The safe from the liquor store was recovered in a canyon, and shavings matching those from the safe were found in a garage rented to Petitioner. Several witnesses observed a car similar to Petitioner's at the scene of the crime. The case largely turned on admissions Petitioner made to several individuals.
Several individuals who lived near or associated with Petitioner around the time of the crime testified that he made admissions to them about the murder. Angela Tabor, La Tonya Wadley, and Lloyd Howard all testified that Petitioner made admissions about the murder to them or in their presence. Echo Ramey testified that she observed incriminating behavior from Petitioner on the night of the crime. Glen Heflin testified that Petitioner made admissions to him about the crime when both were incarcerated in the San Diego County Jail.
Petitioner took the stand in his own defense and claimed that he was committing a different crime, the robbery of a record store in El Cajon, at the time of the Aztec robbery and murder. Petitioner admitted that he aided in opening the Aztec safe and shared in the proceeds of the robbery after the crime took place, but denied any involvement in the murder of Kenneth Muck. Petitioner denied making any admissions to the witnesses that testified against him.
1. Prosecution's Case-In-Chief
The murder occurred at the Aztec Liquor store in San Diego on the evening of August 26, 1985. The lone victim was the store's night clerk Kenneth Muck.
Felicia Insunza, who lived in East San Diego near Aztec Liquor in 1985, testified that she regularly heard the store's alarm set for a few seconds at 10 p.m. on weekdays, and one hour later on Saturdays. (RT 22869-73.) Ms. Insunza testified that she failed to hear the alarm one evening, and awoke the next morning to find the area around the liquor store roped off. (Id.) Sandra McIndoe, who lived within view of the store, testified that her live-in boyfriend John Verdugo called her to the window one evening at about 9:30 or 10:00 p.m., where they viewed two people standing near a sedan. (RT 22879-86.) The next morning, Mr. Verdugo told her there had been a robbery homicide at the liquor store the prior evening. (Id.)
John Riley, a clerk at Aztec Liquor, testified that on the evening of August 26, 1985, he went to the store at the behest of the owner, arriving at 10:45 p.m. (RT 22898-912.) He used the key to unlock the front door, saw a soda carton and blood everywhere, and left to cross the street and call the police. (Id.) Mr. Riley stated that in the 15-20 minutes it took for the police to arrive, he did not see anyone enter or leave the store, and recalled only Mr. Muck's vehicle, a yellow pickup, in the parking lot, along with a cab in the street. (Id.)
San Diego Police Department ["SDPD"] Officer Thomas Jauregui responded to the radio call and met with Mr. Riley. (RT 22927-28.) He and Officer Silva then proceeded to the store, and Jauregui, familiar with the interior of the store, entered first. (RT 22930-32.) Jauregui testified that he saw Mr. Muck lying on the floor, obviously deceased, then exited the rear of the store, checked the back for possible suspects, and finding none, secured the scene. (RT 22932-38.)
Elmer Willeford, the manager at Aztec Liquor, testified that Mr. Muck only had the combination for the safe's lower portion, in order to fill the register drawer with change. (RT 22941-46.) Willeford, notified by the store's owner of the robbery and murder, went to the store to place orders, and noticed that 15 boxes of cigarettes were missing from the back room. (RT 22946-48.)
Dr. Otto Heinkel, the owner of Aztec Liquor, testified that he or wife would regularly go to the store, open the safe to pick up deposits, and prepare the register for the following day. (RT 22955-57.) Mr. Heinkel stated that the store clerks were instructed to keep less than $200 in the register and to hand over the money if robbed, and that at the time of the robbery there should have been $1200 in the safe. (RT 22957-61.) Heinkel explained that there were several silent alarms located in the store, the back door was kept locked, and the store clerks had keys only to the front door. (RT 22961-69.)
Detective Patrick Padillo testified that a blood trail, drag marks, and bloody shoe prints were found at the scene. (RT 22976-81.) Padillo stated that two different sizes of shoe prints were recovered, and while the smaller ones were concentrated near the rear of the store, only the larger shoe prints were located near the victim's body. (Id.) Padillo also testified regarding the search conducted on Petitioner's car, which recovered items such as Petitioner's wallet, shoes, two knives, bullets and stained clothing. (RT 23000-16.) Padillo testified as to the search of the rented Bates Street garage, and the recovery of metal shavings later compared to shavings taken from the Aztec safe. (Id.)
Walter Cardwell, who lived near the Aztec Liquor store, testified that he saw victim Kenneth Muck just before 10 p.m. that evening, when returning a plunger he had borrowed from Muck earlier that evening. (RT 23073-80.) Cardwell stated that he and Muck talked a bit while Cardwell's child played nearby. (Id.) Cardwell saw a maroon Buick in the area that evening, which he later identified by selecting it from among other cars in an impound lot. (RT 23080-95.) Patrick Harn, an investigator for the District Attorney's office, stated that he took Cardwell to the lot, was not told what kind of car they were looking for, and Cardwell pointed out a maroon Buick.(RT 23117-27.)
Richard Cooksey, an investigator with the San Diego Police Department, testified regarding his attempts to identify the type of shoes that could have made the prints found at the crime scene by looking in shoe stores for matching patterns. (RT 23145-56.) Cooksey stated that he found a similar pattern in a size 13 Puma shoe. (Id.) Cooksey explained that the print found near the body was bigger than shoes taken from Cosby, and acknowledged that the shoes recovered from Petitioner did not match the prints either. (RT 23156-69.)
Detective Richard Carey testified on the collection of evidence in October 1985, including three knives and a money bag. (RT 23173-78.) Carey stated that Crime Stoppers called him and said a lady called to say she would leave some evidence in a dumpster. (Id.)
Jackie Robertson, the apartment manager at the Bates Street apartment building where Petitioner rented a garage, testified that Cosby and Petitioner hung out together. (RT 23206-16.) Robertson stated that he heard a metal-on-metal noise late in the evening in August 1985, and thought it was Petitioner, Cosby, and Patterson. (RT 23216-20.) Robertson stated that he later saw a safe in the garage that had been worked on. (RT 23220-26.) Robertson suggested a drill to expedite the process, and stated that Keith and Troy primarily worked on the safe, while Petitioner told Robertson not to get involved. (Id.) Robertson stated that he heard about the Aztec Liquor crimes on the radio, which made him nervous. (Id.) Later, Keith and Troy came in, put 2-3 money bags on the table, a throwing knife, and a mop, the latter which Robertson and his girlfriend Patti Hill kept for a month. (RT 23228-37.) The couple later saw a Crime Stoppers video on the Aztec crime, and Hill made Robertson put the money bags and knives in the dumpster, at which time Robertson also saw papers relating to Aztec in the dumpster. (RT 23237-41.) Robertson acknowledged that he received immunity from the District Attorney's office regarding his status as an accessory after the fact. (RT 23241-43.) Robertson also stated that many guys went in and out of garage that night, including several individuals from Los Angeles, who were ostensibly drug dealers. (RT 23250-55.) Robertson testified that only Keith Cosby was continually present in the garage that evening. (Id.)
Patti Hill testified that she lived on Bates Street in 1985, and heard banging noises on the night of the Aztec robbery. (RT 23297-304.) She stated that Petitioner asked to see the paper early the next morning. (Id.) Hill saw a mop in the dumpster the next day, and told Robertson to get it; she also said that the day after the banging, she witnessed Petitioner washing something metallic and shiny in the sink. (Id.) Hill testified that she later heard Bemore ask Troy Patterson for help, and the two left in Petitioner's maroon car, and several days later, Hill heard Cosby ask Bemore, "Did you get rid of it?" (RT 23304-12.) She was aware of the Crime Stoppers television program, and on several occasions she turned in items relating to this case. (Id.) Hill stated that she received $1000 from Crime Stoppers, and the police moved them to Spring Valley and paid for several things. (Id.)
Rudy VanZetten lived in a home in North Park near a canyon in September 1985, when on the morning of September 11, he saw what looked like a suitcase in the canyon. (RT 23327-34.) Upon closer inspection, VanZetten discovered it was a safe that had been drilled open, and his wife called the police. (Id.) Georgina Inniss, with the San Diego Police Department, testified to the collection of evidence, including shavings from the Bates Street garage, and several items from Bemore's car, including a wallet, papers in Petitioner's name, AAA card of Robert Johnson, and shoes with red stains. (RT 23334-50.)
Officer Joanna Silva, with SDPD's traffic division, testified that she stopped a 1971 maroon Buick on September 11, 1985 for speeding when a man she identified as Petitioner came bursting out of the car with his hands up, startling her. (RT 23351-60.) Silva stated that Troy Patterson was also in the car, intoxicated, so she sent him to detox. (Id.) Silva stated that she had been the first officer at the Aztec crime scene, and had backed up Officer Tom Jauregui at that scene. (RT 23360-61.)
SDPD Patrol Officer James Morrison testified about his contact with Keith Cosby on October 26, 1985, stating that a car driven by Cosby ran over a bus stop and speed limit sign and onto the front yard of a house. (RT 23371-75.) Morrison discovered Cosby did not have a California driver's license, upon which the car was impounded and towed from the scene. (Id.)
Paul Sham, an evidence technician with the SDPD, testified that the metal filings recovered from the Bates Street garage were similar in composition to metal of the safe from the Aztec Liquor store. (RT 23382-94.)
John Simms, a criminalist with the City of San Diego, testified that he compared the shoe prints recovered in this case to the Pumas located by Detective Padillo and that the pattern was consistent with that type of Puma shoe. (RT 23404-16.) Simms stated that he also compared hair found near the victim's hand to both Petitioner and Cosby, but found it was not similar to either man. (RT 23430-36.)
Glenn Heflin, an inmate at the South Bay correctional facility, testified that he had prior contacts with Petitioner in the downtown jail while Heflin was there on an attempted burglary charge. (RT 23451-55.) Heflin explained that he was in a tank with Petitioner for three months and was later moved because he became a witness against Thompson, who was close to Petitioner. (RT 23455-58.) Heflin explained that Petitioner was the tank captain, and had once threatened him for taking too long on the phone, stating that Heflin would not be the first person he had killed. (RT 23460-65.) After he and Petitioner became friendly again after the phone incident, Heflin stated that he was writing a letter and Bemore asked what his charges were; upon hearing it was attempted burglary, Petitioner said not to worry, that he had something to worry about because he killed someone in one of his robberies, adding that the stupid SOB should have opened the safe. (RT 23465-68.) Heflin acknowledged that when he first informed on Thompson, he failed to mention any of the statements Petitioner had made to him; Heflin reported the statements to police after Petitioner threatened him in 1988 during a subsequent incarceration. (RT 23468-73.) Heflin stated that he had made a deal for his testimony and that he had to testify truthfully. (RT 23473-74.) Heflin denied being a member of the Aryan Brotherhood, stated that he did have some prison tattoos, and testified that he initially went to the district attorney's investigator to arrange for protection. (RT 23476-88.)
Angela Tabor, an inmate in Las Colinas Jail, testified that she hung out on Bates Street in 1985, and knew both Petitioner and Keith Cosby. (RT 23525-31.) Tabor once overheard Petitioner and Cosby talking when Cosby told Petitioner, "Man you didn't have to do that," to which Petitioner replied that "if the mf did what I told him he might still be alive." (RT 23531-34.) One morning, Tabor stated she saw a safe in the garage, and Cosby and Petitioner asked if she had tools they could borrow. (RT 23544-49.) Tabor admitted that when she heard Petitioner and Cosby talking, it was always in general terms, and neither specifically mentioned the crimes at Aztec Liquor. (RT 23558-60.)
Troy Patterson acknowledged that he had been in prison several times in the past for felony offenses, and stated that he lived on Bates Street in the summer of 1985. (RT 23568-73.) Patterson said that there was a safe in Jackie Robertson's garage in August of that year, which he helped attempt to drill open with Petitioner, Keith Cosby, and Robertson. (Id.) Although the safe was not opened in his presence and he did not receive any money for his efforts, Patterson stated he received a gram of cocaine soon after. (Id.) Patterson stated that the safe was later kept in an empty apartment, but after media coverage continued regarding the Aztec robbery, Patterson became concerned, and helped dispose of the safe. (RT 23573-75.) After he helped dump the safe in North Park, he got drunk and had contact with police 15 minutes later due to a traffic stop, after which he was sent to detox. (RT 23575-80.) Patterson stated that he and Petitioner switched clothes sometimes, but while Petitioner never wore his shoes, he did wear Petitioner's. (Id.) Patterson acknowledged that he was arrested for robbery in 1986, and the district attorney offered a deal for his testimony in this case. (RT 23589-93.) Patterson stated that he asked for a transfer to another correctional facility, but had not yet gotten it. (Id.) Patterson also stated that he was familiar with Petitioner's car, and stated that not many people wear Petitioner's shoe size, which is 13. (RT 23593-99.) Patterson admitted that he used Petitioner's car to commit crimes without Petitioner, including petty thefts, primarily stealing bottles from liquor stores. (RT 23599-603.)
Echo Ramey testified that she lived on Bates Street in 1985 with her boyfriend Stacy along with Troy Patterson, and Petitioner came by one night in August, sweaty, jumpy and asking for Troy. (RT 23613-17.) Ramey stated she did not see blood, but that Petitioner asked for a duffel or something to cover a safe. (Id.) Ramey stated that while she did not see a safe that evening, she saw one later, in the apartment across from hers. (Id.) Ramey heard about the Aztec Liquor robbery and murder the next day and later heard Petitioner telling another individual to be careful driving his car because there was a safe in the trunk. (RT 23617-19.)
Richard Cooksey, the DA's office investigator, testified as to his involvement in a search of Petitioner's Buick Electra undertaken a year after the police department's search of the vehicle, and to his conversations with Echo Ramey, Stacy and Troy Patterson. Cooskey stated that they recovered size 12D New Balance shoes from the vehicle, and when Patterson was interviewed, he said Puma shoes could have been involved in the crime. (RT 23621-23.) Cooksey stated that Patterson was generally only forthcoming about the safe, and did not initially provide much other information; only after he spoke to Stacy and Echo and returned to speak to Patterson a second and third time did Patterson mention things Cosby had told him about the Aztec Liquor robbery and murder. (RT 23629-35.) Cooksey said Patterson did not ask for a deal, but expressed interest in one, and Cooksey stated that neither Stacy nor Echo were offered any promises to secure their cooperation. (Id.) Patterson also informed Cooksey that he had given Petitioner some black and red shoes, and identified similar ones from a catalog page. (RT 23638-50.) Cooksey admitted that he did tell Patterson that the defense would portray Patterson as the "patsy," and Patterson's identification of the shoe may have come after that statement. (RT 23641-50.) Additionally, Cooksey stated that while Patterson first said he was alone when Petitioner came by the night of the Aztec Liquor crimes, he later said both Echo and Stacy were present, yet always maintained that Petitioner came by that evening for a duffel or box. (RT 23650-54; 23671-73.)
Detective Richard Carey was recalled to the stand and testified that the first description of a possible suspect that was issued listed a height of 5'10." (RT 23690-93.)
Lloyd Howard, who lived and sold drugs on Bates Street in the summer of 1985, testified that he had prior felony convictions. (RT 23708-11.) Howard stated that he knew both Cosby and Petitioner from that time, and had sold drugs to Petitioner. (RT 23711-15.) Howard stated that he heard about the Aztec Liquor robbery and murder soon after the crimes happened, connected the safe on Bates to it a day or two later, and heard who was involved shortly after. (Id.) Howard added that Petitioner and Cosby hung out together, that he had heard how the victim in the Aztec robbery was killed, and that he saw Petitioner with a knife in the late summer of 1985. (Id.) Howard stated that Keith Cosby talked a lot, was a braggart, and mentioned the robbery and murder in his presence on two occasions, both with Petitioner present. (RT 23717-20.) Howard stated that the first time they were drinking beer in the area and Cosby stated that after the victim had been stabbed two or three times he may have already been dead, but Petitioner continued stabbing the man for no reason. (Id.) After Cosby made this remark, Petitioner told Cosby to shut up, and replied that if the victim had not fought back or had done what Petitioner told him to do he would not have had to stab him so many times. (Id.) Howard stated that he knew everyone in the Bates area, and while he used cocaine daily in 1985, he was five months sober at the time of trial. (RT 23726-36.)
Kim Strickler testified that she lived with Lloyd Howard on Bates Street in 1985, and knew both Petitioner and Cosby. (RT 23752-57.) Strickler stated that she heard about the Aztec crime on the news, and saw Petitioner around that time with scratches on his back when he came to their apartment. (Id.) Strickler stated that Cosby was around at that time as well, and she saw a bloody shirt and Cosby got a hose. (Id.) Strickler stated that there were numerous rumors floating around after the Aztec robbery and murder, and stated that the night Petitioner and Cosby came to their apartment was the same night as the robbery. (RT 23760-64.)
Brian Kennedy, a crime scene reconstruction expert, discussed where the attack of Mr. Muck took place, and stated that the victim was in more than one position when the wounds were made. (RT 23787-805.) Kennedy concluded that Muck was seated at one point during the attack, and lying down at another point. (RT 23805-27.)
LaTonya Wadley, who also lived on Bates Street in the summer of 1985, knew Cosby and Petitioner, who hung out together, and knew Howard, who dealt drugs in the area. (RT 23836-41.) Wadley heard about the Aztec robbery and murder on the news, and that same day she saw Petitioner with his head newly shaved, acting nervous and paranoid, and overheard his stated concern about changing clothes and shoes. (Id.) Sometime after the Aztec crimes, Wadley was alone in an apartment with Petitioner when he had been doing cocaine, and Petitioner told her he was worried about what was in the trunk of his car. (RT 23841-46.) Petitioner started to pace, and spoke of blood, footprints, and of stabbing someone 20 times, then talked about leaving and going to Louisiana or Arkansas. (Id.) Petitioner also told Wadley that Cosby ran his mouth and may have to be taken care of before Petitioner left the area. (Id.) Wadley acknowledged that when she was arrested in 1988, she had initially confused Aztec Liquor with an AM-PM when talking to investigator Cooksey. (RT 23846-50.)
The parties stipulated that criminalist Brown would, if called as a witness, testify that several items tested positive for type O blood, that victim Muck's blood type was O, and Petitioner's blood type was also O. (RT 23872-88.) Brown would also state that the knife recovered from the Bates Street dumpster tested presumptively positive for blood, but there was not enough to type, and that a running shoe tested positive for type O blood. (Id.)
Robert Bucklin, a forensic pathologist, noted that the victim had suffered numerous abrasions and cutting injuries. (RT 23891-905.) Bucklin stated that the victim suffered a cut to his jugular vein, which resulted in a slower flow of blood than a cut to the artery. (RT 23905-13.) The victim also suffered superficial cuts to his arms, abrasions on his knuckles, a deep, penetrating leg wound on his lower right leg which nicked the bone, but no defensive wounds. (Id.) Bucklin stated that he marked over 20 wounds on the victim, several of which were potentially fatal. (RT 23913-20.) Bucklin stated that one potentially fatal wound went into the victim's liver and duodenum, another was a wound to the victim's back which entered his lungs and lower heart, and yet another wound entered the victim's chest cage. (RT 23913-33.) Bucklin stated that one of the knives he was shown, which was recovered from Petitioner's car, could have caused some of the victim's wounds. (RT 23934-39.)
John Verdugo, who lived on 53rd Street near Aztec Liquor, stated that he saw something unusual at 9:15 or 9:30 p.m. on the night of the crime. (RT 23942-48.) Verdugo stated that he noticed a vehicle parked in the rear area of the store, and that a man approximately 6'1" with nappy hair placed something long across the car's back seat, and got into the car. (Id.) Verdugo stated that he later saw the vehicle in an impound lot, and that it could have been a maroon Buick Electra. (Id.) Verdugo stated that he was familiar with the store alarm at Aztec Liquor, but could not recall if he heard the alarm that night. (RT 23948-50.)
Investigator Cooksey stated that he showed several sets of photos to Wadley, including both lineups and individual photos, and while she did not identify Cosby in the photo lineup, she did identify his individual photo. (RT 23974-78.) Wadley also selected Petitioner's photo from a group, but Cooksey conceded that it may have taken her a few minutes to do so. (Id.)
Defendant Terry Bemore took the stand, testifying that he previously worked as an officer with the Palo Alto Police Department and had served in the Army, moving to San Diego after leaving the military. (RT 23990-92.) Bemore stated that he had experimented with drugs prior to meeting Jackie Robertson through a course sponsored by welfare, but that he used drugs regularly after his introduction to Robertson. (RT 23992-93.) Bemore stated that he also previously held a job with the San Diego County humane society, for which he had a gun and a uniform. (RT 23993-96.) Bemore admitted that during his employment with the humane society, he stole and committed robberies using the .38 caliber weapon that he carried at work. (Id.) On the day of the Aztec crimes, Bemore used cocaine earlier in the day and later went to the K-Mart in El Cajon about 9 p.m. that evening with Johnny, Troy and Cosby, to case it for stealing. (RT 23996-24000.) Bemore stated that he entered the store, and came back outside to find his car gone, which left him with a gun but no money. (Id.) Bemore stated he then saw the nearby Wherehouse Records store, entered, said he needed to get a checkbook to pay for a record, exited and then re-entered and robbed the store. (RT 24000-04.) Bemore stated that there were not many people in the store at that time, and after the robbery he went to the nearby mall and got in a cab, which he took to Imperial and 54th in order to make a drug purchase. (Id.) Bemore explained that if he had bought the drugs on Bates he would have had to share. (Id.) Bemore then told the cab driver to take him to Bates Street, but the driver refused and dropped him at 54th and University, after which Bemore walked to Bates. (Id.) Bemore stated that he smoked the drugs in an empty apartment, then went to buy more drugs. (RT 24004-05.) Bemore stated that he did not recall getting scratches, but that it could have been from a fight he had with a man named Tex days earlier. (RT 24005-06.) After buying additional drugs, Bemore stated he saw the other men with his car, screamed at them, to which they told him to shut up; it was then he noticed the safe in the back seat with blood on it. (RT 24005-09.) Cosby and Patterson bought cocaine, which Bemore made them share for use of his car. (Id.)
Bemore stated that he, Cosby, and Patterson placed the safe in Bemore's rented garage and attempted to open it with the aid of Jackie Robertson. (RT 24009-16.) Bemore stated that the other two men did not want to give him a third of the contents because he had not accompanied them in the robbery, but Bemore again pointed out the use of his car, and got a portion of the money contained in both the top and bottom of the safe's compartments. (Id.) Bemore acknowledged that he had previously had 20-30 throwing knives in his car. (Id.) He stated that once the money had been divided, he gathered a number of items to place in the dumpster, which included money bags and a mop. (RT 24016-20.) Bemore stated that he helped get rid of the safe in September, but denied knowing that a murder had been committed because he did not read the paper. (Id.) He stated that the blood found on his shoes was from stab wounds he suffered shortly before his arrest. (RT 24020-22.)
Bemore acknowledged knowing Glen Heflin, but asserted that they had only one confrontation, over drugs in the jail tank, as Bemore was a tank captain and punished those with drugs. (RT 24022-27.) Bemore denied telling Angela Tabor or LaTonya Wadley that he was involved with the Aztec crimes, and stated that he knew both Cosby and Patterson were involved in it, even though neither individual directly told him they were. (RT 24027-29.) Bemore stated that he was committing a robbery at Wherehouse Records at the time that the Aztec crimes and murder of Kenneth Muck took place. (RT 24029-31.)
Bemore admitted that he had a serious cocaine addiction, and explained that he started committing robberies because simply stealing items was insufficient to support his cocaine habit, and also admitted that he sometimes used a gun in the robberies. (RT 24033-43.) He explained that it did not matter that the K-Mart in El Cajon was across the street from the Police Department because he wanted cocaine. (RT 24060-69.) Bemore stated that in robbing the record store he displayed the weapon near the register, told the cashier to open it, but because the cashier was slow, he grabbed the money and left. (RT 24069-77.) Bemore stated that when Troy Patterson and Keith Cosby arrived with his car, he was more concerned about drugs and money than the blood on the safe, and that he helped throw away stuff because his car was involved and because he got some of the monetary proceeds from the robbery. (RT 24091-103.)
Bemore conceded that he was familiar with area surrounding the Aztec Liquor store, and stated that he may have gone to that store in the past. (RT 24122-26.) He explained that he felt safe staying on Bates Street because the robbery he committed was in another city. (Id.) Bemore denied talking to LaTonya Wadley or Jackie Robertson about stabbing someone and denied having a conversation with Keith Cosby about a killing with Angela Tabor present. (RT 24122-30.) Bemore stated that he was arrested and bound over for the Wherehouse robbery and attended a preliminary hearing where witnesses testified that he committed the robbery. (RT 24135.)
Yolanda Salvatierra, who worked at the Wherehouse Records store in 1985, stated that on August 26 at 9 p.m., a man came in, asked about records, then went out to get his checkbook. (RT 24285-88.) Salvatierra stated that the same man returned to the store, said he had his checkbook with him all along, pulled out small gun, and asked her to open the register. (Id.) Salvatierra acknowledged that she testified previously about the robbery in November 1986 and identified Petitioner as the robber at that time but stated that she was unsure who robbed her when she testified in 1986, was not sure of her identification, and was currently unsure if Petitioner was the assailant. (RT 24288-95.)
Carrie Jacobs, whose prior testimony was read to the jury due to her unavailability as a witness, lived in El Cajon in 1985, and was in the Wherehouse Records store on August 26 during the robbery. (RT 24341-43.) Jacobs was not aware that a robbery had occurred until the suspect left, and described the suspect as a man, 6'1", muscular African-American, with close-shaven hair, who was wearing a shirt, shorts, and worn-out tennis shoes. (Id.) Jacobs identified Petitioner as the perpetrator, after previously identifying Petitioner at a line up and picking his photo out of an array when police came to her home after the robbery. (RT 24343-67.)
Gary Kruse was an inmate in the San Diego County Jail in the same tank as Petitioner and Glen Heflin in September 1987. (RT 24456-59.) Kruse expressed familiarity with the Aryan Brotherhood prison gang, and stated that Heflin told him that he was a member. (Id.) Kruse stated that he only saw verbal conflicts between Petitioner and Heflin, and saw Petitioner knock Heflin's drugs from a table on one occasion. (Id.)
3. Prosecution's Rebuttal
Reese Jones, a professor of Psychiatry and licensed physician with a sub-specialty in psychopharmacology, testified regarding the effects of cocaine on the brain. (RT 24365-87.) Jones stated that the crime in this case was not consistent with delirium or drug intoxication. (RT 24387-88.) Jones conceded on cross-examination that for an addict, obtaining the drug does become a preoccupation in life. (RT 24388-89.)
Officer Thomas Sumrow responded to the Wherehouse robbery, and stated that the witness descriptions of the perpetrator both said he had an athletic build, and noted that neither said the individual was slender or anemic looking. (RT 24389-401.) Sumrow stated that the original description was of a black male, 6'3" and 200 lbs. (Id.) Sumrow acknowledged that the report regarding witness Kim Rainer's original description listed an estimated height of 6'4" or 6'5". (RT 24409-10.)
Kim Rainer, who worked at the Wherehouse store at the time of the robbery, stated that she was shook up by the robbery and therefore initially described the perpetrator as taller than he actually was. (RT 24410-13.) Rainer later amended her description to state that the assailant was likely 6'2", athletic, and very muscular. (RT 24413-15.) Rainer did not recall the assailant's face, but believed he had fair skin and a lighter complexion than Petitioner. (RT 24415-19.)
Investigator Cooksey stated that he had recently conducted further investigation regarding the Wherehouse robbery. (RT 24467-75.) Cooksey failed to find any underground or covered parking structure as described by Petitioner in his testimony. (Id.) Cooksey also conducted a time experiment, explaining that the distance from K-Mart to Wherehouse was 0.7 miles down Fletcher Parkway, and that it would only take minutes to get to the freeway from the area. (Id.) Cooksey drove the route, obeying all speed limits and stopping at all lights, and found the time it took to travel from Wherehouse to Aztec Liquor was less than 16.5 minutes. (Id.)
At the penalty phase, the prosecution introduced evidence of two prior unadjudicated offenses committed by Petitioner, an assault on Kevin Oliver and the sexual assault of Zelda Carlton.
In mitigation, the defense called numerous witnesses, including Petitioner's friends, coaches, teachers, co-workers, wife and brothers, who traced Petitioner's life from childhood through college and beyond, including his studies and employment in the ministry, in law enforcement, the military and at the humane society. The defense also offered expert testimony, in the form of a clinical psychologist who had studied families associated with chemical dependency.
The defense also offered the testimony of numerous correctional officers, correctional personnel, and inmates who testified regarding Petitioner's good behavior and positive contributions to the prison environment. In rebuttal, the prosecution introduced evidence of Petitioner's involvement in a food tampering incident in the jail and involvement in intimidating another inmate by making sexual overtures.
Jacqueline Oliver testified that she went to Bates Street with her husband in October 1985 to retrieve a TV she had loaned out, and upon her exit from her friend's building, was confronted by people sitting on her car. (RT 24741-47.) Oliver stated that a man she identified as Petitioner left, returned shortly thereafter with a gun and bottle, argued with her husband, and hit him with the bottle. (RT 24747-59.) After this, a melee broke out, an ambulance came, and they went to the hospital. (Id.) Petitioner was also at the hospital in an adjacent area, said he had been stabbed, and threatened Mrs. Oliver, her husband, and their children. (RT 24759-60.) Kevin Oliver added that when he put the TV in the trunk of their car, Petitioner put a gun to his head. (RT 24768-72.) After an exchange of words, he was hit with a bottle. (RT 24772-75.) Mr. Oliver stated that he never threw a punch, tried only to leave, and had no weapon at any point during the assault. (Id.)
Zelda Carlton lived on Bates Street in 1985 and knew Lloyd Howard, who she allowed to use her apartment to sell rock cocaine in exchange for drugs. (RT 24786-90.) Carlton testified that in October or November 1985, several guys were at her apartment one evening, and all but one left, who she then told to leave as well. (RT 24790-94.) Carlton stated that she went into another room, and that same man came into her room with a knife, stating "I'm going to have you." (RT 24794-800.) The man told her not to scream, cut her gown, and raped and assaulted her, keeping the knife on her the entire time. (Id.) After the man left, she threw up, cleaned up, went into her childrens' room and said they had to go, after which they went to Texas. (RT 24800-02.) Carlton stated that she called both of her sisters after the rape, crying and hysterical, and told them each what had happened, repeating her account to each sister once she arrived in Texas. (RT 24802-08.) Carlton identified Petitioner as her assailant. (Id.) Carlton acknowledged that she had been a victim of a different sexual assault in the past, but did not share this fact with her sisters, and never reported the past assault. (RT 24820-23.)
Cynthia Moreno stated that she received a call from her sister Zelda Carlton in the fall of 1985, in which Zelda was crying and said she had been raped by a man with a knife who told her if she screamed he would kill her. (RT 24828-32.) Moreno stated that when Carlton returned to Texas weeks later, she repeated the account which was consistent with her earlier statement. (RT 24832-34.)
Sarah Parker also received a phone call from her sister Zelda Carlton in the fall of 1985, during which Carlton was distraught, upset, crying and wailing, and said she had been raped by a black man. (RT 24834-37.) Carlton stated that the assault took place in her home, and that he had a knife and told her she better not say anything about it. (Id.) Parker said she spoke to her sister again about the incident when Zelda came home to Texas, and Carlton's account was consistent with what she had said on the phone weeks earlier. (Id.)
Lloyd Howard, who sold rock cocaine in 1985 on Bates Street using Zelda Carlton's apartment, recalled a time when he was at Carlton's apartment with Petitioner, Zelda and her kids. (RT 24846-49.) Howard stated that he left later that night and Petitioner stayed, and Carlton came to Howard's apartment the next morning, crying, shaking and scared, and told him that Petitioner had put a knife to her throat and raped her. (Id.) Howard stated that he observed a small cut on Carlton's neck, and thereafter told his drug sellers that Petitioner was not to come on the street, as Howard felt responsible for what had happened. (Id.)
Ray Daugherty, Petitioner's half-brother, stated that Petitioner was the youngest of four children and the only child by a different father. (RT 24865-67.) Daugherty explained that Petitioner's father drank, the couple fought often, and later divorced. (Id.) Petitioner's mother suffered from rheumatoid arthritis and underwent numerous operations when they were children. (RT 24867-71.) Daugherty explained that their brother Don was violent, used drugs and alcohol, was shot and stabbed several times over the years, and is now deceased. (Id.) Another brother Bobby was not violent, but was on medication for epilepsy, and had committed several burglaries in the past. (Id.) Daugherty stated that he had been convicted of 5-6 burglaries as well, and had also used drugs in the past. (Id.) Daugherty explained that their family had a caretaker when their mother was ill, and she also used drugs. (RT 24874-77.) Daugherty admitted that he had used Petitioner as a lookout when committing robberies when Petitioner was between the ages of 10 and 12. (Id.)
Kenneth Daugherty, another brother of Petitioner, explained that he, unlike several of his siblings, did not get into legal trouble. (RT 24877-82.) The witness explained that when their mother got sick, a caretaker named Tilda George helped out, who was cruel to the children and locked up their food. (Id.) Daugherty explained that George physically abused him and Petitioner, beating them with extension cords and canes. (Id.) The witness stated that Petitioner was 8 or 9 years old at the time, and described the experience as "pure hell." (Id.)
Sharon Lauderdale, Petitioner's cousin, stated that numerous individuals in their extended family suffered from drinking problems. (RT 24889-94.) Lauderdale explained that Petitioner, his mother, and the rest of their family came to live with her family when his mother became ill and was confined to a wheelchair. (Id.) Lauderdale stated that Petitioner's brothers used drugs, often came home drunk, and one brother, Don, hit her. (RT 24894-902.)
Dr. Edward Mongan, a physician specializing in the treatment of arthritis, treated Petitioner's mother for severe rheumatoid arthritis, and stated that she was already in a wheelchair by the time he first saw her. (RT 24902-09.) Dr. Mongan explained that she asked for help at home, and was on medication for arthritis in addition to antidepressants and tranquilizers for anxiety. (Id.) Mongan had concerns about the number of medications she took and the possibility of overmedication, and believed she was dependent on the drugs. (RT 24909-20.)
James Smith, a childhood friend of Petitioner's in south central Los Angeles, stated that Petitioner was a popular child, stood up against gangs and drugs, often helped out weaker kids and helped out his mother at home. (RT 24924-32.) Smith stated that while neither he nor Petitioner had religious ties as children, Petitioner lived Christian and later went into the ministry. (RT 24932-34.) James Mason, another friend of Petitioner's since childhood, lived a few blocks away and visited Petitioner's home often. (RT 24940-47.) Mason stated that he drank a little and smoked pot, and was allowed to do both when at Petitioner's home. (Id.) Mason stated that he never smelled dinner cooking there, nor ever saw Petitioner eat at home or have spending money. (Id.) Mason and Petitioner lost contact later, and Mason acknowledged that he had not seen Petitioner recently. (RT 24047-50.)
Stephen Bucky, a clinical psychologist, testified regarding children and families associated with chemical dependency. (RT 24953-63.) Bucky stated that based on his research and statistics, children raised with an alcoholic or chemically dependant parent, as Petitioner was with his alcoholic father and mother's dependency on pain medication, are significantly more likely to develop a dependency or addiction of their own. (RT 25014-18.) Bucky conceded that according to his studies, individuals raised in a family with substance abuse would exhibit similarities to sociopaths on a number of dimensions, but would exhibit differences on others. (RT 25036).
Carl Reed, who grew up with Petitioner in south central Los Angeles and played basketball with him, stated that in high school, Petitioner worked supervising kids at the Boys and Girls Club. (RT 25040-43.) Lionel Harris, a high school teacher and basketball coach, stated that Petitioner was the team captain, and was chosen as such by the team. (RT 25043-47.) Harris stated that Petitioner was intelligent, but only an average student who did not try hard. (Id.) Harris stated that he knew of Petitioner's home situation and knew he had used some drugs in high school. (Id.)
Daphne Earvin dated Petitioner in high school, described him as kind and affectionate, and stated that Petitioner cared for his mother due to her illness. (RT 25047-51.) Earvin and Petitioner went to church and Bible study together, and she stated that they never had a real break up, but that contact became less over time. (RT 25051-58.) Earvin stated that she last spent time with him in 1983, when they had dinner and went to church together; she also visited him in jail in 1985. (Id.)
Aubry Walker has also been friends with Petitioner since high school. (RT 25059-62.) Walker, a police officer, stated he entered law enforcement because of Petitioner's own interest in the field. (Id.) Walker and Petitioner were on the basketball team together in high school; Walker knew of his mother's illness and admired Petitioner's strong religious background. (Id.) Freeman Williams, who also played basketball with Petitioner in high school, stated that he never saw Petitioner smoke or drink. (RT 25063-71.) Williams and Petitioner both attended colleges in Oregon, but while Williams went on to play in the NBA, Petitioner was unhappy and left college. (Id.)
Reverend Cecil Edwards knew Petitioner through his son, and testified that he occasionally prayed with Petitioner at his home and felt he was the kind of young man he wanted his son to be friends with. (RT 25071-75.) Edwards stated that Petitioner's faith was genuine, and he heard later that Petitioner wanted to join the ministry, but acknowledged that he lost contact with Petitioner in the preceding 5-6 year period. (Id.) Gloria Edwards, the minister's wife, met Petitioner when he was in high school when he helped her with the PTA, stating he came to their home sometimes, and spent time there after his mother died. (RT 25075-81.) Edwards found Petitioner to be nice, trustworthy, and friendly, and would have chosen him to be her son. (Id.) She also stated that she met his wife and baby later on, and last saw Petitioner approximately 5 years ago. (Id.) Albert Edwards, Cecil and Gloria's son, stated that he has been friends with Petitioner since 1971, that they attended high school together, and they also saw each other around college after Petitioner returned to Southern California. (RT 25081-93.) Petitioner and Edwards had discussions on religion, and Petitioner also expressed an interest in law enforcement. (Id.) Edwards stated that he last saw Petitioner in 1985, when he met Keith Cosby and Jackie Robertson, and at that time Petitioner admitted to him that they might be into drugs. (Id.) Edwards stated that at this last visit, he noted that Petitioner's personality had changed, but denied Petitioner was ever violent or cruel, and stated Petitioner was still employed when Edwards last saw him. (Id.)
Joseph Barnes, who had known Petitioner since high school, worked as the basketball coach at Pasadena City College when Petitioner attended, and Petitioner married his wife's niece, who he met as a student there. (RT 25098-102.) John Hardy, Petitioner's counselor at Pasadena City College, stated that Petitioner had tutoring assistance when he was enrolled there, but was unfamiliar with Petitioner previously attending a college in Oregon. (RT 25102-11.)
Earl Muse, currently a counselor for the California Youth Authority, attended school with Petitioner from junior high through Pasadena City College, and played basketball with him. (RT 25112-19.) Muse found Petitioner funny and likeable, but stated that Petitioner changed when his mother died, when he started drifting, missing class, and using drugs such as marijuana, PCP and alcohol. (Id.) Muse became concerned and spoke to their coach about it, angering Petitioner, who left for another school at the end of the year. (Id.) Muse asserted that even though Petitioner got hostile with him, he was never violent. (Id.)
Stephen Griffin, who knew Petitioner through basketball at Barton County Community College in Kansas in 1976 and 1977, stated that the season before Petitioner arrived was not good, but the season Petitioner played was a standout year for the program. (RT 25125-35.) Griffin stated that Petitioner was the only black person on the team, and made a huge contribution to the team, as a record holder and a gentleman. (Id.) Griffin explained that he and Petitioner also had a spiritual friendship, spoke about religion often, and that he met Petitioner's girlfriend Bernetta. (Id.) Griffin stated that the last time he saw Petitioner was at an alumni game in 1983. (Id.)
Mark Miller, who met Petitioner when he attended George Fox College in Oregon, stated that his father was the basketball coach there, and had recruited Petitioner. (RT 25136-43.) Miller stated that Petitioner was not happy in Oregon, at the small school with a small percentage of black students, and Petitioner moved with Miller's family to Kansas. (Id.) Miller, who was 17 at the time of the move, did not want to move, and Petitioner helped him with homesickness, and lived with the family. (Id.) Miller stated that he looked to Petitioner as a big brother, and that Petitioner was active in the church. (Id.)
Thelma Johnson met Petitioner at a church they both attended in Kansas, and stated that Petitioner lived on her property. (RT 25143-49.) Petitioner had previously lived with other students, but did not like the atmosphere, as it was not conductive to studying, and accepted her offer of a place to stay. (Id.) Johnson states that her husband was also close with Petitioner, who she described as a beautiful young man who was full of love. (Id.)
Marion Scott, a minister and restaurant owner in Kansas, knew Petitioner from church. (RT 25149-55.) Scott stated that while he was initially wary of Petitioner due to the fact that he was from a violent part of Los Angeles, he found that Petitioner was never that violent, and became family to him, describing him as a "rarity" who preached in white churches. (Id.)
Lorin Miller, a basketball recruiter who worked in Oregon and Kansas, recruited Petitioner out of high school. (RT 25155-85.) Miller stated that Petitioner was originally unhappy in Oregon and moved back to California. (Id.) However, when Miller moved to Kansas for a job, he got Petitioner to move as well. (Id.) Miller stated that Petitioner had tremendous potential as a person, was never mean or violent, and was a better-than-average player. (Id.) Miller stated that Petitioner was recruited heavily from the school in Kansas, and later went to Morehead State, a Division One school. (Id.)
Andre Jones played basketball with Petitioner at Morehead State University in Kentucky in 1977 and 1978 season. (RT 25196-203.) Johnson was the team captain and recalled Petitioner as a good player, but did not recall not recall him playing a game. (Id.) Johnson stated that there were only 3-4 black players on the whole team, including himself and Petitioner, and that Johnson and maybe one other black player got to play, as the black players did not get the same chance to show their skills as white players. (Id.) Johnson explained that Morehead was located in eastern Kentucky, in a predominantly white town in the mountains. (Id.)
Benjamin Braziel met Petitioner in elementary school, and they grew up together, attending high school and San Jose State together. (RT 25209-20.) Braziel knew Petitioner was cared for by an ill mother, and stated that when visiting Petitioner's home, he witnessed drugs being used there. (Id.) Braziel also stated that Petitioner was in the ministry, and he has one of Petitioner's Bibles. (Id.) Braziel stated that he went away from his faith for a time and Petitioner brought him back. (Id.)
Steven Petillo, a police officer with the City of Palo Alto, was hired at the same time as Petitioner and attended the academy with him, driving in each day together. (RT 25220-38.) Petillo considered Petitioner a friend, and stated that Petitioner performed well and was well-liked at the academy. (Id.) Petillo stated that Petitioner was ranked in the top third of their class, but stated that Petitioner failed to complete the probationary period. (Id.)
Larry Ellis, a pastor, stated that he and Petitioner were ministers in training at the same time in Redwood City, where Petitioner became was a licensed minister. (RT 25255-70.) Ellis believes he first met Petitioner's wife Bernetta around the time she and Petitioner got married, and thinks Petitioner attended Simpson Bible College for a time. (Id.) Ellis stated that he also counseled Petitioner and his wife on their marital problems. (Id.)
Vitruvius Brooks met Petitioner as a teenager and they attended high school together. (RT 25279-82.) After high school, Petitioner flew into town to attend Brooks' mother's funeral in May 1981, was a pall bearer, and recited the Lord's prayer at the service. (Id.) Brooks stated that Petitioner was attending the ministry at the time, and consoled Brooks. (Id.)
John Culberson was in Petitioner's Army unit in Fort Lewis, Washington, in the early 1980's. (RT 25282-87.) Culberson stated that Petitioner entered as an E3, and was recommended for promotion to E4, but did not receive it because of a problem with his feet that slowed him down. (Id.) Culberson explained that they served in an infantry unit which entailed a great deal of marching and walking, but aside from the foot problems, Petitioner was a model soldier, both dependable and likable. (Id.)
Paul Culver, a Humane Society officer for San Diego County, trained Petitioner for a position and found him to be easygoing and reliable. (RT 25292-300.) Culver stated that he observed Petitioner in the field where he was professional and cool-headed. (Id.) Culver did not harbor any suspicions regarding Petitioner using drugs and was unaware of family problems, but did recall some mention of financial problems. (Id.) Culver stated that he and Petitioner did not really socialize outside of work. (Id.) Culver also explained that their officers carried weapons that they purchased on their own. (Id.) Culver stated that Petitioner's employment was terminated a few days after Petitioner was arrested and jailed for stealing liquor from a supermarket. (Id.)
Orthopedic surgeon Dr. James McSweeney examined Petitioner in May 1988 for a complaint of bilateral foot pain. (RT 25301-09.) Petitioner stated that he had a basketball accident in 1973 and had pain in his left foot ever since. (Id.) Petitioner told Dr. McSweeney that he also had right foot pain in the military. (Id.) McSweeney performed an exam, took x-rays, and found metatarsalgia bilateral, a disorder with inflammation of joint capsules. (Id.) Dr. McSweeney stated that he discovered an old fracture and other injuries and prescribed special footwear. (Id.)
Fred Lee, Director of the San Diego Humane Society, hired Petitioner in December 1984 as a night person, and later promoted him to humane law enforcement, where the duties included the investigation of complaints of animal abuse. (RT 25316-26.) Petitioner went through the training, and the position included carrying a firearm. (Id.) Lee stated that Petitioner had a nice appearance, was good at talking to people, and his background in law enforcement was a good fit for the position. (Id.) The panel approved Petitioner, who was then appointed and sworn in. Lee stated that Petitioner's performance was good at first, but he later had problems with punctuality and problems completing work. (Id.) Lee was later notified that Petitioner had been arrested for shoplifting or burglary in east San Diego County, and Petitioner failed to show up for work after that, so his appointment was revoked and he was terminated in August 1985. (Id.)Petitioner stopped in once in late October 1985 just to talk, appearing thin and in ill-health. (Id.)
Ira Woods, an employee of the Humane Society, met Petitioner through work, and had some contact with him and his family at church. (RT 25334-39.) Petitioner also attended bible study at Woods' home, and Woods felt that Petitioner's knowledge of the Bible was good. (Id.)
Benjamin Patterson, the stepfather of Petitioner's wife, states that he became aware of Petitioner's cocaine use in 1985, when Petitioner came to him and admitted he had a drug problem. (RT 25344-48.) Patterson is an alcoholic and told Petitioner where the central office for Narcotics Anonymous was located, but does not know if Petitioner ever went there. (Id.) Patterson also once visited Petitioner in the hospital in 1985, where Petitioner told him he was clean since his arrival and would stay clean. (Id.)
Bernetta Bemore, Petitioner's wife, testified that they met as junior college students in Pasadena in 1976. (RT 25348-53.) Bernetta's mother was a recovering alcoholic who stopped drinking when she was 26, and her father was the first black city councilman in their area and an accountant with his own firm. (Id.) Bernetta does not drink or use any drugs, and fell in love with Petitioner's spiritual side, believing he would give up the marijuana he sometimes used when they met. (Id.) She stated that Petitioner told her he had his first sexual experience at age 11 or 12 with the wife of his oldest brother. (Id.) Bernetta acknowledged that the differences in their backgrounds was a concern to him, but she felt that he fit in well with her family. (Id.)
Bernetta and Petitioner were dating when his mother died, and she testified that it affected him strongly, after which he made a point to try to change and to stop drinking and using drugs. (RT 25353-64.) After his mother's death, Petitioner moved to Kansas for more college, and she visited him there. (Id.) After attending Morehead State in Kentucky, however, Petitioner again started drinking and using drugs, but was not using drugs when he went into the ministry in 1980, and they got married shortly thereafter. (Id.) Bernetta stated that Petitioner later left the ministry for financial reasons, started the police academy, and she became pregnant. (Id.) Petitioner was terminated from the police department a month before she was due, which she stated was stressful; after the firing, he again started to drink and use drugs. (Id.) Later on, he enlisted in the Army, where Bernetta stated he did well and seemed to enjoy himself. (Id.) After his discharge from the military, she got pregnant again, went on welfare to cover the birth, and he took a job with the Humane Society. (Id.)
Bernetta stated that Petitioner was in a lot of pain at that time, as he had received a medical discharge from the military, and he drank heavily. (RT 23564-68.) She stated that Petitioner stopped the substance abuse when he was hired at the humane society in December 1984, but started drinking again in April 1985. (Id.) Bernetta stated that Petitioner was a good husband even when on drugs or she would not have stayed, and that he was an excellent father to the girls. (Id.)
Bernetta testified that she tried to talk to Petitioner at different points about his drug and alcohol use, and he appeared to be winning the battle at times. (RT 25371-76.) She stated that Petitioner underwent a change in the spring of 1985, as he was sleeping a lot since he was working two jobs, one in security and one at the Humane Society. (Id.) She noted that during this time he also drank a lot and was gone for long periods of time. (Id.) During this period, Petitioner kept bringing up the idea of divorce, resulting in their separation in June 1985, but he continued to visit her and the children. (Id.) On his visits, Bernetta felt that Petitioner did not look good, and she was concerned. (Id.) In July 1985, Petitioner told her that he was addicted to cocaine, they discussed entering marriage counseling, and she started attending NA meetings. (Id.) Petitioner said he attended NA meetings, but that they were not for him. (Id.) Bernetta saw Petitioner only a few times in August 1985, and he called once from jail after he had been arrested for shoplifting. (Id.) Prior to this call, she declined when Petitioner asked her to get him from jail, as she did not want to enable him. (Id.) At this point, Petitioner pushed for a divorce so she did not go down with him. (Id.) Bernetta stated that she saw Petitioner once in September 1985, and not at all in October 1985 until he was stabbed and placed in the ICU, where she spoke to him over the phone but was too afraid to see him in the hospital. (Id.)
Bernetta testified that she started divorce proceedings after a later hospital visit, but never completed the proceedings, and she still considered them to be married. (RT 25376-81.) She stated that she still wanted to be married to him, had visited him in jail, and had taken the kids for visits. (Id.) She had not told their children of Petitioner's conviction, as she was waiting to see what happens, although the children knew he was in jail and would be there a long time. (Id.) However, Bernetta stated that Petitioner was still the childrens' father who talked to them about their problems and helped her out with discipline. (Id.)Petitioner spoke to the children about drugs and alcohol and the wrong decisions he made in the past. (Id.) Bernetta stated that the kids still needed a father and she needed help in raising them. (Id.) She stated that Petitioner was never violent around her or the children, and had expressed remorse for putting the family through everything. (RT 25389-91.)
Several correctional officers, personnel, and fellow inmates from the San Diego County Jail testified regarding their interactions with Petitioner during his incarceration, including his leadership abilities, good behavior, and spirituality. Deputy Marshal Melvin Fay stated that he had multiple contacts with Petitioner as an inmate and found him to be polite and respectful, with a good sense of humor. (RT 25401-06.) Fay described a fight that broke out between two inmates that Fay attempted to break up with Petitioner's assistance, stating that Petitioner was "a big help" in bringing the situation under control. (Id.)
Deputy Kevin Randall saw Petitioner often between November 1987 and November 1988 when running security checks, as Petitioner was a tank trustee. (RT 25407-10.) Randall stated that Petitioner was always courteous, ran his module well, and stated that he never witnessed Petitioner acting violently. (Id.) Randall acknowledged hearing about a food contamination incident where someone put disinfectant in the ...