FINDINGS AND RECOMMENDATIONS
Petitioner Timothy Stayer, a state prisoner, proceeds through appointed counsel with a second amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of first degree murder, conspiracy to commit torture, torture, kidnapping, and destruction of evidence in the Shasta County Superior Court, case number 04F8744, for which he is currently serving a term of life in prison without the possibility of parole, plus an additional consecutive life term, plus various other terms to run concurrent with the life sentences. The second amended petition, respondent's answer, petitioner's traverse, and both parties' supplemental briefs are before the court. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.
The victim, Christopher McCauliffe, died on November 21, 2004. Several co-defendants were charged with various crimes in connection with his murder. Petitioner was charged with murder (count one); conspiracy to commit torture (count two); torture (count three); kidnapping (count four); and destruction of evidence (count six). As an enhancement and special circumstance, it was alleged that the murder was committed in the course of felony kidnapping. As an additional enhancement, it was alleged that petitioner had previously incurred a felony conviction.
Petitioner was tried in a joint trial with one other co-defendant, his brother Robert Stayer. The California Court of Appeal's background summary of the case on direct review is recounted below. The footnotes, while numbered differently than in the original, are those of the California Court of Appeal. Since these factual findings have not been rebutted with clear and convincing evidence they are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). For the sake of simplicity, Timothy Stayer, Robert Stayer, and Robert's wife, Kimberly Stayer, are referred to by first name in the court of appeal's factual summary opinion and in the rest of this report, except where Timothy Stayer is referred to as the petitioner.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution evidence*fn1 Defendants [Timothy and Robert] did not testify, but their recorded statements to the police were played for the jury in redacted form. (The transcripts given to the jury were not admitted in evidence, but the parties do not dispute their accuracy.) The trial court instructed the jury that neither defendant's statement could be used against the other defendant.
In November 2004, defendants, who are brothers, and Kimberly lived with defendants' mother ([Katherine] Tuschen) and her three younger children in Anderson, California.*fn2 On the evening of Saturday, November 20, defendants and friends went to a party. Timothy went with Haley Savage in her Nissan Altima; Robert, [Kevin] Skelton, and [Daniel] Coyne went in Coyne's Chevy Silverado pickup.*fn3 Meanwhile, Tuschen and Christopher McCauliffe met at a bar and decided to have sex. She brought him home after midnight on November 21. No one was there.
After leaving the party, Robert, Skelton, and Coyne bought two 12-packs of beer and went to a friend's apartment in Redding. Savage drove Timothy home to pick up his cell phone charger. Savage parked and waited while Timothy, who lacked a key, knocked on the front door, then went to the back.*fn4 Through an opening in the blinds, he saw Tuschen having sex with McCauliffe. After [Tushcen] heard Timothy knocking, she let him in.
Timothy, hearing McCauliffe's name, realized that he was the boyfriend of Timothy's ex-girlfriend, Laura Minkoff. Timothy left her a message on his cell phone. McCauliffe then attacked him.
In the ensuing fistfight, Timothy broke McCauliffe's nose, blackened one eye, and spattered blood all over the bedroom. After taking him out of the house, Timothy put him in a chair on the front porch.*fn5 McCauliffe's body, when found, showed evidence of recent severe diarrhea. Forensic pathologist Dr. Susan Comfort opined that such diarrhea is an effect of Diazinon poisoning.
At some time, Timothy called Robert. Timothy told the police that he said, "I'm locked out of the house ... and mom's having sex with somebody." Robert told the police that Timothy said "get down to the house" because of a "problem." According to Kimberly, Robert later told her that Timothy had urged them to come "[t]o beat up Christopher McCauliffe"; however, she called this a "paraphrase." According to Coyne, after taking the call Robert said, "We have to go. There's trouble[,]" then said, "There's some guy at the house." According to Skelton, Robert said that they "needed to go to Anderson," but did not explain why. Robert, Skelton, and Coyne drove quickly to Tuschen's house in Coyne's pickup, taking their beer. When they arrived, Timothy and Tuschen were standing by the front door; Timothy was yelling at McCauliffe, who sat in a chair on the porch, badly beaten and bloody.
Timothy said to Robert: "Hey [b]ro, this guy's been fucking mom" (or words to that effect).*fn6 According to Coyne, Robert threw a beer bottle, hitting McCauliffe in the forehead, and followed up with a punch that knocked him off the chair.*fn7 As he lay on the ground unresisting, Robert hit him four or five more times until pushed away and told to "chill" by Coyne. McCauliffe remained motionless on his side.
Timothy dragged McCauliffe face-down into the garage, then hovered over him cursing. Robert, Skelton, Coyne, and Tuschen also entered the garage. The door shut.
Coyne testified that he did not see any more abuse of McCauliffe in the garage before going into the house, as Skelton and Tuschen also did. Robert came in with Coyne, but must have gone back out. Timothy apparently remained in the garage.
A few minutes later, Robert came back in holding a jug or bottle and said to Coyne: "I poured this on him"; asked why, he shrugged. According to Kimberly, Robert later said he had poured "bug spray" on McCauliffe's eyes because McCauliffe was trying to use his cell phone.*fn8 Timothy told Coyne to back up his truck to the garage. Timothy and Skelton picked McCauliffe up and walked him to the truck, which he put his hand on to steady himself. Coyne saw "some type of liquid on him" which smelled so horrible that it was hard to breathe. McCauliffe said, "I can't see" and "[i]t burns."
After McCauliffe sat on the tailgate, Timothy and Skelton put him into the truckbed. Coyne, Robert, and Skelton drove away from the house. No one had said where they were going.
According to Coyne, he stopped and asked Robert where to go; Robert directed him to the boat ramp at Anderson River Park, four or five minutes away, but would not say why.*fn9 When they arrived there, it was very cold.
Skelton dragged McCauliffe out of the truck, dropped him onto the parking lot, straddled him, and kicked him twice in the ribs, saying: "Don't mess with people's mothers."*fn10 Next, Robert (whom Coyne believed to weigh 240 or 250 pounds) stomped McCauliffe in the head around eight times, jumping up and down while holding a cell phone taken from McCauliffe. Coyne heard McCauliffe's head hitting the asphalt. Skelton finally ran over and stopped Robert. Robert, Skelton, and Coyne then drove back to the house, leaving McCauliffe lying on the asphalt. No one called 911 to get help for him.
Savage, who had driven away, returned to the house in time to see McCauliffe carried out to Coyne's truck and the truck pull away. She called Timothy, who came out and sat in the driver's seat as she moved over. He smelled of pesticide, but claimed he did not know why. They drove to the boat ramp, where she saw someone on the ground. Timothy went over to him, came back quickly, and said: "He's fine. He's breathing. He's okay." She said they needed to call 911; he replied, "I know, I know," but did not call. They returned to the house. In the garage, Savage saw blood and smelled the odor she had noticed on Timothy.
When Robert, Skelton, and Coyne got back to the house, they found Timothy hosing down the porch, while Tuschen was inside shampooing the carpet.*fn11 According to Coyne, the garage smelled strongly of pesticide.
When Timothy heard that the others had gone to the boat ramp, he said that he had thought they would go to a big tree in the park called the "Senior Tree."
According to Coyne, after 20 minutes at the house, he and Robert drove in the truck, which smelled of pesticide, to a house where Robert did a drug deal, then to a car wash. They were met by Timothy, Skelton, Savage, Kimberly, and Kimberly's sister, who came in Savage's car, driven by Timothy. The group tried to purge the vehicles of evidence as some of them discussed and acted out what was done to McCauliffe, unaware that the car wash's video recorders were taping it all.
Timothy and Savage drove to her home. Robert, Kimberly, and Coyne dropped off Skelton, then checked in at a Motel 6 around 3:30 a.m.; claiming to lack identification, Robert gave Coyne money to rent the room. Once inside, Robert cleaned blood from his lower leg.
After a cell phone discussion with Timothy, Coyne drove to Savage's home. Timothy said that he had gone to the boat ramp, seen McCauliffe, and heard him wheezing. Alarmed, Coyne decided to check on it; Savage let him take her car.
At the boat ramp, Coyne found McCauliffe lying motionless and unresponsive. Coyne called Timothy, who told him to put McCauliffe in the back seat of Savage's car. Timothy and Savage then drove there in Coyne's truck.
Timothy went over to McCauliffe, shook him, and announced: "Dude is dead as fuck." He told Coyne again to put the body in Savage's back seat and take it away. According to Coyne, he said: "No, we have to call the cops," but Timothy answered: "No, we can't do that." According to Savage, Timothy came back to the truck and said: "I don't think he's okay. And I don't think he's breathing, but I don't know." He then got into Savage's car, in which he and Coyne returned to Tuschen's house, leaving McCauliffe's body behind; Savage followed in Coyne's truck.*fn12
According to Kimberly, Timothy then came to the Motel 6, carrying McCauliffe's wallet in a plastic bag.*fn13 Timothy told Robert: "We killed him, bro."
Timothy, Robert, and Kimberly bought cleaning supplies at a Wal-Mart. After dropping Timothy off at Savage's home, Robert and Kimberly went on to the house, where Robert cleaned the garage with ammonia and Tuschen gave Kimberly bedsheets to dispose of. Behind a flea market in Redding, they burned the bedsheets and Robert burned some of his clothing; Skelton burned some of his there at another time.*fn14
At 9:30 a.m. on November 21, Timothy woke Laura Minkoff at home and
said: "We didn't mean for it to go this far." Unaware of his phone
message, she did not know what he was talking about. After they
listened to it, he told her about the fight, claiming that he had
intended only to take McCauliffe to her place to make him
confess.*fn15 Later, Timothy claimed [to Minkoff] that
he had left the house after putting McCauliffe on the porch, had
learned by calling Robert that the others had taken McCauliffe to the
boat ramp, and had gone there only to find him dead; after that, they
had bought cleaning supplies and cleaned up the house.*fn16
To corroborate his story, Timothy handed Minkoff the watch
she had given McCauliffe; Timothy also told her that they had thrown
McCauliffe's wallet, which she had made for him, into the river. On
November 22, defendants, Coyne, Skelton, Savage, and Kimberly met and
agreed to keep silence. After spending the night at Minkoff's home,
Timothy and Savage went to Sacramento for several days.
Forensic evidence The police found McCauliffe at the boat ramp around 8:00 a.m. on November 21. The first officer on the scene caught a heavy smell of insecticide, which he recognized as Diazinon.*fn17 He determined that McCauliffe was dead.
Forensic pathologist Dr. Susan Comfort found that the chemical smell coming downwind emanated from an oily liquid on the victim's person and clothes. A frothy red-pink fluid was coming out of his nose and mouth, which struck Dr. Comfort as "a bit peculiar."
The smell was so overpowering that Dr. Comfort and her assistants began examining the body outdoors. After they took it inside, she donned a respirator, but nevertheless suffered nausea, asthmatic symptoms, a sore throat, and a headache during and after the autopsy.
The victim's head and neck had multiple blunt force trauma injuries "consistent with a very severe beating." These included a deep laceration toward the back of the head which went completely through the scalp and pulled it away from the skull, a broken nose, deep bruising and swelling around the eyes, and many other abrasions and contusions, some possibly from a bottle striking the forehead.*fn18
On the left upper chest and arm, the skin was sloughing off and discolored, as if chemically burned. There were also multiple abrasions and contusions on the arms and legs and possible defensive wounds on the hands and forearms.
The victim's brain, which was mildly swollen, showed surface hemorrhages just below the scalp and a subarachnoid hemorrhage in the cerebellum. The brain had also suffered global hypoxic ischemic injury, meaning that neurons had started to die from impaired blood flow; the insult to the brain had occurred four to six hours before death. In other words, "there was a prolonged period of time before he finally expired."
Internal examination further showed bleeding in the neck muscles and soft tissues consistent with a forceful injury to the neck surface, and bruising in the small intestine consistent with a blow to the abdomen.
Blood and lung tissue tests detected Diazinon, the blood at a level of 0.05 microgram per milliliter and the lung tissue at the higher level of 0.16 microgram per gram. The victim's vitreous humor, or eye fluid, contained Diazinon metabolites, indicating that the substance had passed through the liver.
Froth like that found on the victim's mouth normally results from death by seizure or drowning; Dr. Comfort had never seen it before in a beating death. Diazinon, an organophosphate poison, can cause the respiratory distress which produces such froth. Dr. Comfort also found a high level of pulmonary edema, another possible result of organophosphate poisoning.
The victim's buttocks and the backs of his legs were covered with loose stool. This is rarely found post-mortem. It can be a symptom of organophosphate poisoning.
The victim's blood alcohol level was .26 percent, which is too low to be toxic. In an alcohol-tolerant person, it might not even cause
On the morning of November 21, it was "really chilly" at the boat ramp, with a cold wind blowing off the river. A person left out in such conditions, unconscious or incapacitated and wearing soaking-wet light clothing, will likely develop hypothermia. As body temperature at the time of death was unknown, Dr. Comfort could not say for sure that hypothermia contributed to death, but she thought it "very probable."
The multiple contributory factors made the cause of death "really difficult ... to analyze." However, Dr. Comfort concluded that the victim died of blunt force trauma, with likely contributory factors including Diazinon poisoning and hypothermia.
Dr. Comfort's autopsy report listed Diazinon poisoning only as a contributory factor because the toxicology tests were inconclusive. The true Diazinon level at the time of death was probably unknowable: Diazinon breaks down over time, and the samples were not tested until weeks after the victim's death. The dead neurons in his brain, suggesting breathing difficulty, pointed to Diazinon.
Hypothermia was also a likely contributory factor because it would slow respiration in a person already breathing with difficulty from poisoning and head injuries, plus the effect of a .26 percent blood alcohol level. These factors would work together to depress brain function lethally.
Other expert testimony An expert on organophosphate poisoning, Dr. Michael O'Malley, opined that "full-blown poisoning" (rather than odor-caused "direct irritant effects") was unlikely to be "the main cause of death" because the toxicology results did not show sufficient absorption into the victim's system.*fn20
Dr. Comfort did not disagree with Dr. O'Malley's conclusion. She took exception, however, to his ascription of the victim's "oral nasal froth, copious diarrhea, [and] pulmonary edema" to "terminal hypoxia" rather than Diazinon poisoning: she had not seen such froth or diarrhea in any purely "asphyxial" death. She also noted that Dr. O'Malley's report erroneously discussed nonexistent urine test results rather than the actual vitreous humor test results, which could have affected his analysis.
Robert called Tuschen and Skelton as witnesses.
In addition to the testimony already mentioned, Tuschen stated that she never smelled any chemical or pesticide odor on her premises and never saw anyone washing off the porch. She cleaned up the blood inside because she did not want her younger children to see the "mess." She did not know what happened at her house on the night of November 20-21 after Timothy's initial fight with McCauliffe. She admitted, however, that she had given bedsheets to Kimberly and possibly a jug of Diazinon to her or Robert to be burned. She also admitted that when Timothy was in jail, she told him to tell a potential witness not to talk to the police.
Skelton was called to impeach Coyne's credibility by portraying him as a full participant in the crimes. However, Skelton did not deny his own involvement.
People v. Stayer, No. L 2404203, 2008 WL 2404203 at 1 -6 (Cal.App. 3rd Dist. 2008).
Coyne and Skelton entered plea bargains for the dismissal of some charges and stipulated sentences on the remaining charges in exchange for their testimony against petitioner and Robert. Kimberly, Haley Savage, and Laura Minkoff were offered immunity in exchange for their truthful testimony.
A jury convicted petitioner of all counts, consisting of first degree murder, conspiracy to commit torture, torture, kidnapping, and destruction of evidence. The jury found true the kidnapping special circumstance as alleged to the murder count, and a great bodily injury enhancement as to the torture count. He admitted the prior prison term allegation.
Petitioner was sentenced to life without the possibility of parole for the murder and special circumstance, consecutive to another life sentence for torture. The court imposed the upper term of 8 years for kidnapping, an additional year for the prior prison term allegation, and six months for destruction of evidence, all to be served concurrent to the indeterminate terms. A additional consecutive life sentence for conspiracy to commit torture was stayed.
On direct review, the California Court of Appeal, Third District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied. After this federal action commenced, petitioner sought habeas corpus relief in the California Supreme Court; that petition was likewise denied prior to appointed counsel's filing of the second amended petition.
The parties agree that petitioner properly exhausted state court remedies with respect to the claims presented to the extent that they renew the same factual allegations made in state court. Respondent contends, however, that petitioner's ground four is untimely filed, and that grounds two, four, and six were procedurally defaulted and thus barred in this court.
Petitioner's grounds for relief are summarized as follows: Ground One: Insufficient evidence supported the conspiracy conviction.
Ground Two: The jury instructions on derivative liability were constitutionally inadequate.
Ground Three: The prosecutor committed prosecutorial misconduct and trial counsel rendered ineffective assistance in relation to Kimberly's marital privilege, which was not asserted at trial.
Ground Four: Trial counsel rendered ineffective assistance in failing to object to the use of Kimberly's testimony at trial as involuntary and a violation of due process.
Ground Five: The trial court failed to instruct the jury that it had to agree on the acts on which the guilty verdicts were based in violation of due process.
Ground Six: The trial court's instructions on the doctrine of natural and probable consequences allowed conviction without proof beyond a reasonable doubt of every fact necessary to constitute the crimes charged.
Ground Seven: The trial court erred by instructing on the special circumstance with CALCRIM No. 730 but not CALCRIM Nos. 700 and 703.
Ground Eight: The trial court's instruction on "felony murder- first degree" omitted an element of the offense.
Ground Nine: Insufficient evidence proved Robert's premeditation and deliberation, which in turn invalidates petitioner's first degree murder conviction to the extent it was based on aider and abettor liability or conspiracy.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).
A. Ground One- Sufficiency of the Evidence on Conspiracy Petitioner claims that insufficient evidence supported the jury's verdict on count two, conspiracy to commit torture. The last reasoned state court decision applicable to this claim for AEDPA purposes is that of the California Court of Appeal on direct review. The court of appeal held:
Timothy contends that the evidence does not support his conviction of conspiracy to commit torture (count 2)... The evidence on this count was sufficient. "Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more persons conspiring to commit any crime. [Fn .] A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy. [Citations.]" (People v. Morante (1999) 20 Cal.4th 403, 416, 84 Cal.Rptr.2d 665, 975 P.2d 1071.) Thus, the People had to prove that defendant specifically intended
(1) to agree with another person to commit torture and (2) to commit the elements of that offense. (People v. Jurado (2006) 38 Cal.4th 72, 123, 41 Cal.Rptr.3d 319, 131 P.3d 400.) However, since a conspirator is responsible for everything done by his coconspirators as part of their common design, the People did not have to prove that defendant personally committed or intended personally to commit torture. (People v. Morante, supra, 20 Cal.4th at p. 417, 84 Cal.Rptr.2d 665, 975 P.2d 1071.) Circumstantial evidence may prove conspiracy without an express verbal agreement. (People v. Longines (1995) 34 Cal.App.4th 621, 626, 40 Cal.Rptr.2d 356.) This evidence may include "the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, 36 Cal.Rptr.2d 235, 885 P.2d 1.) FN27
FN27. Timothy cites a federal appellate decision for the rule that "[a]n inference of an agreement is permissible only when the nature of the acts would logically require coordination and planning." (United States v. Garcia (9th Cir.1998) 151 F.3d 1243, 1245.) However, we are not bound by federal appellate decisions (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97, 3 Cal.Rptr.3d 365), and Timothy does not cite California authority for this rule. To the extent it may differ from California law, therefore, we need not follow it.
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." (§ 206.)
Viewed most favorably to the judgment, the evidence showed: After beating McCauliffe severely, Timothy urgently summoned Robert, Skelton, and Coyne and used the most inflammatory language possible-telling Robert that McCauliffe had "fuck[ed]" or "rap[ed]" their mother-to incite them to further violence "for the purpose of revenge ... or for any sadistic purpose" (§ 206). FN28 The jury could reasonably have inferred that Timothy knew Robert's capacity for rage and meant to trigger it. Then, having watched Robert brutally beat the already helpless McCauliffe, Timothy inflicted further pain on him by dragging him face-down into the garage. Then (apparently making no effort to intercede), Timothy watched Robert pour insecticide on McCauliffe, which any reasonable person would have expected to cause "cruel or extreme pain and suffering." (§ 206.) (Even if Timothy had not expected that, McCauliffe's cries-"I can't see" and "It burns"-would have revealed that it did so.) Then, Timothy orchestrated the next stage of the proceedings, directing McCauliffe's removal from the house (minus wallet and cell phone) by Robert and his friends. Timothy could only have expected them to do more of the same to McCauliffe once they reached their destination. Furthermore, his remark about "the Senior Tree" shows that he expected them to take McCauliffe to the park, a deserted and bitterly cold spot where they could torture him further without fear of discovery or intervention.
FN28. Although only Kimberly testified that Timothy specifically urged them to come and "beat up" McCauliffe, and she conceded that she was paraphrasing Robert's account on this point, the jury could also have believed that Timothy said essentially that. In any event, his words ...