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Evelyn Carol Jackson v. Ken Eichenberger

January 4, 2012

EVELYN CAROL JACKSON, PETITIONER,
v.
KEN EICHENBERGER, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2005 judgment of conviction entered against her in the Sacramento County Superior Court on charges of second degree murder and discharging a firearm at an inhabited dwelling. She seeks relief on the grounds that: (1) her constitutional rights were violated by the erroneous exclusion of evidence of third-party culpability; (2) her constitutional rights were violated by the trial court's failure to give a jury instruction; and (3) her conviction is not supported by sufficient evidence. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background*fn1

A jury convicted defendant Evelyn Carol Jackson of second degree murder and shooting at an inhabited dwelling place. The jury sustained an allegation that a principal was armed with a firearm in the commission of the offense, and the trial court sentenced defendant to 15 years to life plus an additional year for the enhancement.

On appeal, defendant contends: (1) third party culpability evidence was improperly excluded; (2) the trial court should have instructed the jury on intervening cause; (3) there is insufficient evidence to support the second degree murder verdict; and (4) cumulative error warrants reversal. We reject the contentions and affirm. BACKGROUND On October 25, 2003, Porchia Turk, her brother Kevin Turk, her sister Keyihuna Turk, and Keyihuna's friend Twin, drove to the Rainbow Market and bought some cigars. Upon leaving the market, Porchia noticed a blue Oldsmobile Cutlass parked next to her car. There were two Black women in the front of the Cutlass and two babies in the rear.

The two women in the Cutlass were staring at them as Porchia and her companions came out of the market. Defendant was in the driver's seat of the Cutlass, Quiandra Deloney was in the front passenger seat, and Deloney's two children were in the rear of the Cutlass.

Defendant and Deloney stared at them for two or three minutes. Defendant then said something like, "I didn't know bitches looked this good." Keyihuna replied, "If I was stuck on bitches, it would not be none of you all hoes in the car."

Defendant then got out of the car, which led to all of the adults exiting the cars. Defendant made a hard push at Keyihuna, who swung back, starting a fight. Keyihuna's friend Twin started a fight with Deloney.

Porchia and her brother Kevin never participated in the fight. The fight ended when Porchia started to back her car out of the Rainbow Market's parking lot. As the fight broke up, Twin "jumped on top of [the Cutlass] and smashed the windshield in and said, 'This is how we do it in the town,'" a reference to Oakland.

Porchia saw defendant talking on a cell phone after the windshield of defendant's car was broken. She heard defendant say, "We being jumped. We being jumped. Be strapped." "Strapped" is a reference to guns. Porchia also heard defendant say, "Oh, ya'll gonna get popped." As Porchia backed her car out of the parking lot, she heard defendant say "Follow them. Follow them." According to Kevin Turk's account of the incident, a blue Oldsmobile with two women and two children was parked next to them in the parking lot of the Rainbow Market. He saw the driver of the Oldsmobile enter and leave the market. Keyihuna and Twin were staring at the women in the other car, and the driver responded by asking them if they were interested in women. Keyihuna replied with an insult, which eventually led to a fight between Keyihuna, Twin, and the two women from the Oldsmobile. The fight stopped when Twin jumped on the windshield of the blue Oldsmobile and kicked the window in. Twin said, "This is how Oakland do it."

The driver of the Oldsmobile made a call on a cell phone after Twin's statement. Porchia decided to leave after this phone call. The driver of the Cutlass was still on the cell phone as Porchia backed up. Kevin recalled hearing the woman say on her phone, "These bitches up here jumping us."

Parmjit Singh, the owner of the Rainbow Market, came out during the fight. He saw a woman step on the windshield of a car and break it while he was calling the police. He saw defendant on the cell phone, explaining her location to the person she was calling. Porchia drove quickly down McArthur Street with her sister, brother, and Twin while defendant followed in her Cutlass. She made a quick U-turn and noticed a white car was following behind defendant's blue Cutlass. The Cutlass and the white car both made U-turns and continued to follow her.

Porchia testified that defendant continued to use the cell phone while she was driving. The two cars kept following Porchia as she drove to her apartment complex on 301 Doolittle Street. Porchia and the passengers ran up to her apartment after she parked in the back of the apartment complex. After telling friends and family in the apartment about the incident, they went out to the balcony to see what was happening. Porchia saw the blue Cutlass and the white car outside her apartment complex.

Porchia heard a female voice from one of the cars yell, "Bitch, come on down here." The people on the balcony and the occupants in the two cars began to yell at each other. The verbal altercation lasted no more than three minutes before Porchia heard seven or eight gunshots coming from the white car. She saw a flash coming from the back seat of the white car, but no flashes from defendant's car.

Michael Ross, also known as "Bubba," and William McElroy, were roommates and downstairs neighbors of Porchia. McElroy, his girlfriend Heather Scott, and Bubba were returning to their apartment after going out to dinner, when McElroy noticed a bluish-gray Buick Regal and a white foreign car stopped at a stop sign on the corner of McArthur and Doolittle Streets.

McElroy's sister had told McElroy about the incident at the Rainbow Market as he parked his car. After seeing the two cars stopped at the stop sign, McElroy thought there might be trouble, so he got a handgun from his apartment.

The two cars started to drive when McElroy came out of his apartment. The women in the blue car were yelling at his neighbors in the balcony. He heard the women in the blue car yell things like, "Come out and fight, Bitch. You're gonna get it."

The girls in the blue car were Black, and McElroy thought he saw a car seat in the back. McElroy testified he saw Porchia, her mother, brother, sister, and a friend were on the upstairs porch yelling back at the women in the blue car. McElroy was outside watching with his gun tucked under his arm, while Bubba was standing about an arm's length from McElroy.

The two cars moved slowly down Doolittle towards McArthur. The blue car was in front, followed by the white car, which was no more than a foot behind. There were at least three Black males in the second car. A passenger in the second car rolled the window down and said, "What's up, fat boy."*fn2 The passenger stuck a gun out of the window, and McElroy saw a muzzle flash as the gun fired.

McElroy pulled his pistol from under his shirt and returned fire. He returned about two or three shots, while seven to nine shots came from the white car. Bubba never shot a weapon or had a gun during this encounter. McElroy had told the police Bubba was carrying two guns during the incident and had returned fire. He testified that this was a lie he had told to avoid getting into trouble for carrying a gun.*fn3 Right after McElroy started shooting, he heard Bubba scream,

"They shot me." The cars drove down McArthur towards Raley Boulevard as McElroy kept on shooting. After he was shot, Bubba ran towards the end of the apartment complex. He kept running around until he collapsed in the middle of the yard.

Geneatta Lockhart lived in the apartment complex on Doolittle. On the day of the murder, she had gone to bed early but was awakened by a car door slamming. She heard a female voice say, "You don't know who you messing with. I will blow this [place] up." Shots were fired after this exclamation, and Lockhart dove to the floor.

Sacramento Police Officer Justin Saario responded to the scene of the shooting, where he found Bubba lying on the ground with a bullet wound in his lower throat area. The officer also found a handgun about 10 to 20 feet between Bubba's body and the apartment complex.

Officer Scot Krutz took statements at the scene. Kevin Turk told Officer Krutz he heard the women from the car which had followed them yell, "Bitch, I'll kill you" and "We're gonna shoot this [place] up."

Quiandra Deloney testified under a grant of immunity. She was very close to defendant and her family, having known her since the age of 12. Deloney, her two children, and defendant intended to drive to the store and then drop the children off with her children's aunt before going to a club. They stopped at the Rainbow Market, where a fight broke out between Deloney, defendant, and two women from a car parked next to them. The fight started after an exchange between defendant and a woman in the other car over why the women in the other car were staring at them. The fight ended when a woman from the other car jumped on defendant's car and kicked in the front windshield.

Defendant was on the phone while two girls from the other car were fighting Deloney. She did not hear defendant talk about getting jumped or making any references to being strapped while on the phone. Defendant did tell Deloney that they were going to follow the other car.

Defendant made a U-turn as they followed the car to the apartment complex. Deloney testified that the girls from the market were on the balcony yelling at her and defendant. Deloney said, "Come downstairs, Bitch," to the women on the balcony.

Deloney noticed a white Camry or Honda behind defendant's car as they turned around near the apartment complex. There were three or four Black men in the car whom Deloney did not recognize.

The yelling went on for about seven minutes before Deloney heard gunshots.

Deloney denied telling a male friend over the phone that she had been jumped, but was impeached with a statement made to a detective indicating she had called a male friend and told him about the fight. She was also impeached with phone records of several calls made on her phone when defendant's car was following Porchia to the apartment complex. Deloney was impeached with conversations with her mother while she was in jail, where Deloney implied she was covering for defendant and wanted to "tell." Deloney said in another conversation with her mother: "[W]hen . . . we was jumping the gun . . ., they probably got that."

The victim, Bubba, was killed by a bullet wound of his upper chest/lower throat area. There was gunshot residue on Bubba's hands, but the prosecution's expert witness explained this could be caused by being close to a gun when it was fired by another person.

Sometime after the shooting, defendant went to the UC Davis Medical Center where she was diagnosed with a dislocated shoulder. An emergency room nurse at the UC Davis Medical Center testified that type ...


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