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Derrico Aubrey v. Michael Martel

December 5, 2012

DERRICO AUBREY, PETITIONER,
v.
MICHAEL MARTEL, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against him in the San Joaquin County Superior Court on one count of second degree murder and one count of torture. Petitioner seeks federal habeas relief on the ground that the trial court deprived him of his due process right to present a defense. After careful consideration of the record and applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

FACTUAL BACKGROUND

The California Court of Appeal for the Third Appellate District summarized the facts underlying the offenses of conviction in an unpublished memorandum and opinion on direct appeal, as follows:

Defendant and Carla Alexander had been involved in a long-term relationship; their daughter was born in 2000, shortly before they moved to Stockton. Alexander also had four teenagers from a previous relationship. Alexander had been a user of heroin for a number of years. Defendant was also a self-admitted user of heroin who testified that he had overcome an addiction but was still using at the time of Alexander's death. Alexander and defendant had moved into a home down the street from defendant's uncle, William Bennett, whose wife, Sabrina Banks, had three children from her previous relationship living with them. Defendant admitted having a tempestuous relationship with Alexander. They argued all the time; they would slap, push, and shove each other, but he would hit her only as a response to her hitting him. Several witnesses testified about direct and circumstantial evidence that defendant had physically abused Alexander on various occasions. Bennett and Banks testified that Alexander frequently stayed at their house after an argument with defendant, sometimes looking the worse for wear. It was her safe house. They even took Alexander to a home in Oakland around Christmas 2005 after a fight to get her away from the environment with defendant, but she returned after a few days.

In the final week of January 2006, defendant's mother, Dorothy Wade, had dinner with Alexander (in defendant's absence) on Thursday night. Wade was a registered nurse. In the course of her profession, she had become familiar with the signs of someone being under the influence of heroin or withdrawing from heroin, and had seen Alexander suffering withdrawal symptoms before. Alexander, however, did not appear to be ill or have anything else wrong with her that evening other than a runny nose (which was among the signs of heroin withdrawal) and a headache (which was a chronic problem). Her appetite was healthy. They discussed Alexander's heroin use; Alexander expressing the desire to conquer her addiction.

One of Alexander's daughters, M.G., had been sick at home from school all week, and testified that Alexander had appeared to be sick as well. Early Friday morning on January 27, M.G. awoke hearing defendant yelling and her mother telling him to stop. Eventually, the arguing and loud noises stopped; defendant came into the bedroom M.G. shared with the youngest child and told them to get dressed because he was taking them to his grandmother's house. Alexander then came into the bedroom, bent over, and was holding her stomach as if she were ill. She slowly moved toward M.G.'s bed and lay down. M.G. did not notice any visible injuries. As Alexander lay there, she spoke with defendant's great-aunt, Anita Clay, on her cell phone. Defendant came into the room and carried Alexander back into their bedroom. As defendant drove the children to Clay's house, he told them not to say anything about him hitting their mother.

Wade had called Alexander about 6:30 a.m. that Friday to remind Alexander that she was going to give Alexander a ride to the hospital at which Wade worked to apply for a housekeeping position. Alexander had not sounded as if she was in pain or was having any difficulty breathing. However, when Wade stopped by the residence between 8:30-8:45 a.m., no one answered the door. She was there about 10-15 minutes. A group of young men standing across the street told Wade that they had seen Alexander go down the street.

The Bennett's oldest stepson, Demarcus Banks,FN1 was down the block from their home when he thought he saw someone near their driveway. It was late morning or early afternoon. After calling his mother at work to determine whether anyone was expected to be there (Bennett and his sister, Larnett Frazier, having gone to the Bay Area to see Bennett's doctor), Demarcus went back to the home and found that the previously unlocked front door was now locked. He jumped the fence and entered through the back door, finding Alexander lying on the sofa. When Demarcus started to leave through the front door, Alexander asked him to keep the door locked. Demarcus ran into defendant in front of the latter's home. Defendant asked Demarcus if he had seen Alexander; Demarcus said he had not. In response, defendant told him that Alexander "ran way, she left the house, and that she don't have anywhere to stay."

FN1. We refer to Demarcus by his first name to distinguish him from his mother, Sabrina Banks.

When Banks returned home, Alexander said that she was okay and just needed to lie down. Alexander moved to a bed in one of the children's rooms. By early Friday evening, Bennett had returned home and Alexander's children had joined her at Bennett's house. Alexander told Banks earlier that day that "she didn't feel good" and asked one of her children for a beverage, appearing to have difficulty sitting up when one of her daughters brought it to her. Bennett and Banks suggested that they take Alexander to the doctor, but she demurred. Banks later told police that Alexander was having difficulty breathing, and complained of pain whenever she moved. This was the worst condition in which Banks had ever seen Alexander.

On Saturday morning when Banks returned home from work early, Alexander was in the kitchen getting some water. Suddenly Alexander fell to the floor, saying she felt weak. Once again, she rejected the suggestion that she see a doctor, and said she simply needed to lie down. As they helped her back to the bedroom, Alexander vomited "brown looking stuff."

That Saturday evening, Bennett needed to take his wife to the emergency room for treatment for her Bell's palsy. Alexander refused to go with them. They were gone for a couple of hours.

When they returned, Bennett found Alexander seated on the toilet in the master bedroom with her pants down, her mouth and eyes wide open and her arms down at her sides. (She had never previously been in the bedroom or that bathroom.) Bennett called to his wife, who came in and could not feel a pulse. The wife called both 911 and Wade, who lived nearby. Wade arrived first and began performing CPR until the paramedics got there; they were unsuccessful in reviving Alexander. Defendant arrived during their efforts, weeping and shouting upon learning that Alexander was dead. Wade took him away.

The autopsy took place on Sunday morning. Alexander's body had multiple minor blunt force injuries, with over 45 bruises, a couple of abrasions, and a cauliflower ear. The bruises were one to two days old, except for a major bruise in the breastbone area that was somewhat older. X-rays revealed 15 broken ribs, two of which were gaping fractures. Some of these were recent, and had hemorrhaged into her body cavities. A blunt force had lacerated her liver as well, with blood accumulating in its capsule and leaking into her body cavity. There was also blood in the heart sac.

Overall, there was close to one and a half quarts of blood in the body cavities. The pathologist believed that the cause of death was shock and hemorrhaging from multiple fractured ribs and a lacerated liver. While CPR can fracture ribs, the fracture would be in a different location than Alexander's injuries, which also had older-looking hemorrhaging and swelling. CPR could account for the blood in the heart sac. Alexander had severe emphysema, which may have shortened her life by several hours. A toxicologist found various over-the-counter pain medications in Alexander's system, as well as codeine and morphine. The morphine could be a product either of the codeine or heroin (the latter of which will clear from the bloodstream after 12 hours.)

Defendant testified. In the week before her death, Alexander had the flu and was experiencing heroin withdrawal (which included symptoms of stomach cramps, pain, and a lack of appetite). After his mother called Alexander that Friday morning about the housekeeping job, defendant had an argument with Alexander about her desire to get some heroin before meeting with his mother. Defendant reminded her that a dealer had confronted him about her outstanding debt. He asserted that the argument was strictly verbal, not physical. When he drove the children to his grandmother's house, he told them not to tell anyone about the argument, but did not threaten the girls in any way. He returned to his home about noon. He was not concerned when he did not see Alexander there, and left. When he came back later, he encountered Demarcus outside, who said he had not seen Alexander. Defendant called a couple of people to see if he could find out where she was. However, he knew from past experience that sometimes Alexander would go away for a couple of days. When he saw his mother going to Bennett's house the next night, followed by ambulance lights, he ran there. Initially, he thought Alexander had overdosed on something. When he discovered that she was dead, he went into shock and his mother took him away. He spent a couple of days with friends until his arrest. Defendant also disputed some of the circumstances of some of the other incidents in which witnesses had claimed he was abusing Alexander.

People v. Aubrey, No. C060132, 2010 WL 4851371 at 1-4 (Cal. App. 3 Dist., Nov. 30, 2010). See also Notice of Lodging Documents on April 30, 2012 (Doc. No. 13), Resp't's Lod. Doc. 4 (hereinafter Opinion).

PROCEDURAL BACKGROUND

Petitioner was charged by Information on June 2, 2006 with special circumstance murder by torture (count one) and torture with personal infliction of great bodily injury involving a domestic partner (count two). (Clerk's Transcript on Appeal, Volume 2 (hereinafter 2CT) at 331-33). It was further alleged for sentence enhancement purposes that he had suffered a prior serious felony conviction. (2CT at 333.) On April 15, 2008, petitioner's first jury trial in the San Joaquin County Superior Court commenced. (2CT at 427.)

On May 23, 2008, the jury returned its verdict finding petitioner not guilty of special circumstance murder as charged in count 1. (2CT at 494.) The jury was unable to reach a verdict on any lesser included charges as to count 1 or the torture charge set forth in count 2, and the court declared a mistrial as to ...


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