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Maldonado v. Frauenheim

United States District Court, N.D. California

March 29, 2017



          EDWARD M. CHEN United States District Judge


         Taquan L. Maldonado filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his state court conviction for first degree murder. Respondent has filed an answer to the petition and Mr. Maldonado has filed a traverse. For the reasons discussed below, the Court denies the petition.


         The California Court of Appeal described the evidence at trial:

[The decedent, Katrina] Moore began dating appellant in 2009. Moore was 10 years younger than appellant and had been previously married. Moore lived in a house on Eden Canyon Road (the house) in Castro Valley with several people, including Stephen Wilson, Japhy Frey, and Lacey Elletson. Appellant did not live at the house, but he frequently spent the night there with Moore. Everyone who lived or spent the night at the house used methamphetamine.
When appellant and Moore began dating, they ''got along'' and had a ''normal'' relationship. At some point, however, the relationship changed and they began to argue frequently, sometimes once or twice a day. Wilson, Frey, and Elletson heard appellant and Moore arguing in Moore‘s bedroom; sometimes Frey heard ''stuff crashing ... loud bangs, doors slamming, that kind of thing.'' Appellant also called Moore constantly and left her threatening voicemails, sometimes saying, ''' I know you‘re there‘'' and ''' Pick up the phone.‘'' Some messages were angry, others were ''whiny'' and ''[m]ushy.'' Appellant also came to the house uninvited, once stealing a car to drive there.
In March 2010, Moore‘s father saw she had a black eye; Moore said she ''got in a fight with'' appellant but claimed ''it was an accident, it was no big deal ... really downplaying it.'' When Moore‘s father confronted appellant and asked him, '''What did you hit her for?‘'' appellant looked away and did not respond. When Moore‘s father encouraged Moore to break up with appellant, she said ''they were breaking up, or they were broke[n] up.'' In early April 2010, Elletson saw Moore with a black eye. Moore told Elletson she had ''gotten into a confrontation[.]'' Moore did not want to be seen at work with a black eye, so she stopped going and was fired. Later that month, Elletson heard appellant and Moore fighting in Moore‘s bedroom. Elletson heard a smack and saw Moore holding her face; Moore told Elletson appellant ''put [his] hands on her.'' In April 2010, Moore complained to Frey that her back hurt: she said appellant '''punched [her] in the back‘'' and showed Frey a bruise the size of a grapefruit on her back.
In late April or early May 2010, Moore told Frey she was ''trying to break up with'' appellant but she continued to see him regularly. Elletson thought Moore was confused about whether to continue dating appellant; as Elletson explained, ''she was not wanting to be with him but she didn‘t know how to tell him ... that she was done [with the relationship], and he wasn‘t getting the point.'' Around this same time, Moore spoke with her ex-husband about ''getting back together'' and moving to Sacramento. Moore and Wilson had intimate relations ''a few times'' in April or May 2010.
In May 2010-a few weeks before her death-Moore had a bloody lip after dropping appellant off at his house. She was crying and upset: she told Wilson appellant punched out the back passenger window of her car and ''threw her phone at her.'' The next day, Frey saw appellant with a bandage over a cut on his hand. Appellant admitted he punched the window because he was angry.
Around this time, Moore became pregnant. She told Elletson she felt like she ''had this demon in her'' and wanted to terminate the pregnancy. On June 1, 2010, [Moore] and Elletson went to a clinic to fill out paperwork for Moore to get an abortion. Moore scheduled the abortion for June 3, 2010. Appellant spent the night at Moore‘s house on June 2, 2010. On the morning of June 3, 2010, the two women drove to Moore‘s house to pick up appellant. Appellant told Moore he loved her. As the car drove away, Wilson saw appellant throw a knife out the car window and onto the driveway. Wilson picked up the knife-which he thought was from Moore‘s kitchen- and put it in his bedroom.
On Thursday, June 3, 2010, Moore went to the clinic to have an abortion. Elletson accompanied her. On the way to the clinic, they stopped at appellant‘s house; Elletson waited in the car while Moore ''went up to the door'' to talk to appellant. Elletson heard appellant and Moore arguing about the abortion: appellant said ''he was going to support [Moore] and the baby [.]'' Moore returned to the ''car crying and jump[ed] in'' and appellant ''started chasing the car'' as Moore drove away. As they drove, appellant called Moore and yelled at her for ''murdering his kid[.]'' Moore had the abortion that afternoon; appellant called and harassed her that evening.
On June 4, 2010, Moore drove appellant to jail, where he was to serve time for a car theft conviction. Moore told Wilson the jail was ''overbooked.'' She and appellant returned to the house and appellant spent the night. Wilson did not hear appellant and Moore arguing that evening. The next morning, June 5, 2010, Wilson saw appellant and Moore making breakfast. Moore ''seemed fine.'' Wilson went outside to work in the yard. At some point, Wilson heard appellant and Moore arguing inside the house. Wilson heard a loud ''thud ... come from the house[, ]'' like a body or something heavy hitting the floor. He went to Moore‘s bedroom, where he heard Moore and appellant talking in ''calm voice[s].'' Wilson thought appellant was ''saying something about you always got to bring up something old'' and that he wanted to ''start fresh[.]'' Wilson went outside and resumed his yard work.
About 15 minutes later, appellant ran outside and said, '''Help me help her.‘'' Appellant had blood on his elbow. He said Moore fell through a window. Wilson went into the house and saw blood on the archway leading into the living room. Appellant went into Moore‘s bedroom and shut the door. Wilson did not go into the bedroom; instead, he looked for a phone to call 911. As Wilson looked for a phone, he heard appellant say Moore was ''swallowing her tongue, and something about the broken window.'' Unable to find a working telephone, Wilson went to a neighbor‘s house to borrow a phone.
Appellant called 911 from a phone in Moore‘s bedroom and said he needed an ambulance for his girlfriend, who was ''stabbed right below her collar bone and her shoulder.'' When asked, ''how did she stab herself'' appellant said ''Oh my God.'' He did not respond when asked ''who stabbed her or how did she get stabbed?'' When asked again who stabbed Moore, appellant said, ''We were just playing around [in] the room ... and then ... I don‘t know what happened. We were just playing around. We‘re just, like, gonna have sex in the room and then she ran into the-into the sliding glass closet.'' The dispatcher asked appellant, ''Y‘all were just playing around and she just ran into the knife or something[?]'' and appellant said, ''No. No knife, the closet.'' Law enforcement officers arrived and found Moore on her bedroom floor, covered in blood. She was ''wheezing and gurgling'' and appellant was ''holding a rag to her shoulder.'' The room was ''very disheveled'' and there were ''blood streaks on the bedroom door, on the walls, carpets'' and on appellant‘s clothes. A mirrored glass closet door in the bedroom was shattered and there were glass fragments on the floor. Moore had a deep, oozing wound near her neck. The officer felt a ''very faint'' pulse in Moore‘s neck and prepared to perform CPR. At that point, paramedics arrived and unsuccessfully performed CPR for a lengthy period of time.
A law enforcement officer took appellant out of the bedroom. His clothes were bloody and he had ''a laceration on his left forearm'' and red marks on his arms, face, chest and back. Appellant ''was very excited, hysterical, concerned, distraught'' and ''kept trying to go back inside'' the house. A law enforcement officer moved appellant to a patrol car and arrested him.
Some time later, Moore‘s ex-husband cleaned Moore‘s bedroom and found a 9-inch, single blade knife hidden in a floor vent. The knife was usually in a kitchen drawer, about 20 feet from Moore‘s bedroom. The knife had Moore‘s blood on it and appellant could not be excluded as the source of a minor DNA profile on the knife. A forensic pathologist testified Moore‘s wound was consistent with the use of the knife found in her bedroom, not from broken glass. The knife traveled between two ribs, through Moore‘s left lung, and close to her heart. The pathologist testified people with this type of wound can survive for up to 30 minutes, and opined Moore probably would have survived had she received medical treatment earlier. Moore had methamphetamine in her system when she died.
Defense Evidence
Appellant‘s friends and relatives testified appellant loved Moore and was upset about her decision to have an abortion. Witnesses testified Moore stalked appellant by repeatedly calling him ''[a]ll day, all night'' and by watching him when he was out in public without her. Witnesses could hear Moore screaming at appellant when she called and testified she sometimes slapped him when she was angry. They also testified appellant frequently tried to pacify Moore. Appellant‘s ex-wife testified he was not violent during their marital fights, but conceded she applied for a restraining order after he said he had a gun in the garage. She also testified appellant threatened ''people'' were ''going to go down'' if she obtained a restraining order.
On cross-examination, appellant‘s witnesses admitted that when they spoke to appellant while he was in jail, he said the incident was an accident. In one conversation, appellant‘s aunt advised him to tell the prosecutor Moore got him hooked on methamphetamine, and it ''f- - -ed [his] head up'' and ''the next thing you know she‘s dying, and you didn‘t even know what happened[.]'' In response, appellant said, '''Yeah, but I don‘t know if that s- - - will hold in court.‘''

People v. Maldonado, California Court of Appeal No. A134796, opinion filed April 28, 2014 (''Cal.Ct.App. Opinion'') at 2-6.

         Following the jury trial in Alameda County Superior Court, Mr. Maldonado was convicted of first degree murder and found to have personally used a deadly and dangerous weapon in the commission of the offense. He was sentenced to 26 years to life in prison on February 24, 2012.

         Mr. Maldonado appealed. The California Court of Appeal affirmed his conviction in April 2014, and the California Supreme Court denied his petition for review in August 2014. Mr. Maldonado also filed petitions for writ of habeas corpus in the California Court of Appeal and California Supreme Court, which were summarily denied. Docket No. 13-21; Docket No. 13-22 at 72. Mr. Maldonado later filed another pro se petition for writ of habeas corpus in the California Supreme Court, which was summarily denied. See Docket No. 13-22 at 158.

         Mr. Maldonado then filed his federal petition for writ of habeas corpus. The Court ordered Respondent to show cause why the petition should not be granted. Respondent has filed an answer to the petition, and Mr. Maldonado has filed a traverse. The matter is now ready for decision.


         This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).


         This Court may entertain a petition for writ of habeas corpus ''in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'' 28 U.S.C. § 2254(a).

         The Antiterrorism And Effective Death Penalty Act of 1996 (''AEDPA'') amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court 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).

         ''Under the 'contrary to‘ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.'' Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         ''Under the 'unreasonable application‘ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.'' Id. at 413. ''[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'' Id. at 411. ''A federal habeas court making the 'unreasonable application‘ inquiry should ask whether the state court‘s application of clearly established federal law was 'objectively unreasonable.‘'' Id. at 409.

         The state-court decision to which § 2254(d) applies is the ''last reasoned decision'' of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). ''When there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.'' Ylst, 501 U.S. at 803. The presumption that a later summary denial rests on the same reasoning as the earlier reasoned decision is a rebuttable presumption and can be overcome by strong evidence. Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016). Although Ylst was a procedural default case, the ''look through'' rule announced there has been extended beyond the context of procedural default and applies to decisions on the merits. Barker, 423 F.3d at 1092 n.3. In other words, when the last reasoned decision is a decision on the merits, the habeas court can look through later summary denials to apply § 2254(d) to the last reasoned decision.

         Section 2254(d) generally applies to unexplained as well as reasoned decisions. ''When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.'' Harrington v. Richter, 562 U.S. 86, 99 (2011). When the state court has denied a federal constitutional claim on the merits without explanation, the federal habeas court ''must determine what arguments or theories supported or . . . could have supported, the state court‘s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court.'' Id. at 102.

         V. DISCUSSION

         Several of the habeas claims in this action involve the differences between first degree murder and voluntary manslaughter. In California, the crime of voluntary manslaughter is a lesser included offense of the crime of murder. People v. Beltran, 56 Cal.4th 935, 942 (2013).

         ''Murder is the unlawful killing of a human being . . . with malice aforethought.'' Cal. Penal Code § 187(a). Malice aforethought may be express or implied. Id. at § 188. Express malice is ''an intent to kill'' and implied malice exists '''when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.‘ A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder.'' Beltran, 56 Cal.4th at 941-42 (citation omitted).

         ''Manslaughter is the unlawful killing of a human being without malice.'' Cal. Penal Code § 192. If the killing without malice is done ''upon a sudden quarrel or heat of passion, '' it is voluntary manslaughter. Id. at § 192(a). ''Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter.'' Beltran, 56 Cal.4th at 942. Voluntary manslaughter based on a heat-of-passion theory has both a subjective and an objective component. See People v. Moye, 47 Cal.4th 537, 549 (Cal. 2009). For the subjective component, the defendant must actually, subjectively, kill the victim in the heat of passion, that is, anger, rage, or any violent, intense, high-wrought or enthusiastic emotion, except revenge. See People v. Breverman, 19 Cal.4th 142, 163 (Cal. 1998). The objective component requires that the defendant‘s passion have an objectively reasonable basis. That is, there must be evidence that the victim provoked the defendant, and that conduct was ''sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.'' Moye, 47 Cal.4th at 550. The provocation need not be such that it would prompt an ordinary person of average disposition to kill someone, but only that it ''would render an ordinary person of average disposition 'liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.‘'' Beltran, 56 Cal.4th at 957 (quoting People v. Logan, 175 Cal. 45, 49 (1917)).

         A. Sufficiency of the Evidence

         Mr. Maldonado argues that the evidence was insufficient to support the first degree murder conviction. He contends that he was guilty of, at most, voluntary manslaughter. Among other things, he argues that he was ''too drugged on methamphetamine'' to form the mental state necessary for first degree murder. Docket No. 6 at 10.

         This claim was not presented on direct appeal and was instead presented only in Mr. Maldonado‘ s pro se petition for writ of habeas corpus to the California Supreme Court. Because the California Supreme Court summarily rejected the challenge to the sufficiency of the evidence, the federal habeas court ''must determine what arguments or theories supported or . . . could have supported, the state court‘s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court.'' Harrington, 562 U.S. at 102.

         The Due Process Clause ''protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'' In re Winship, 397 U.S. 358, 364 (1970). A court reviewing a conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines whether, ''after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'' Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may a court conclude that the evidence is insufficient. See Jackson, 443 U.S. at 324. The ''prosecution need not affirmatively 'rule out every hypothesis except that of guilt, ‘'' and the reviewing federal court '''faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.‘'' Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).

         ''Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic facts to ultimate facts.‘'' Coleman v. Johnson, 566 U.S. 650, __, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citing Jackson, 443 U.S. at 319). ''[O]n habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge'' unless ''the state court decision was objectively unreasonable.'' Id. at 2062 (internal quotation marks omitted).

         The Jackson standard is applied to a crime as that crime is defined by state law. Jackson, 443 U.S. at 324 n. 16. Under California law, murder is the unlawful killing of a human being with malice aforethought. Cal. Penal Code § 187(a). A murder that is ''willful, deliberate, and premeditated'' is first degree murder. Id. at § 189. California courts have identified three common indicators that a killing was deliberate and premeditated: (1) planning activity, (2) motive, and (3) a particular or exacting manner of killing. People v. Anderson, 70 Cal. 2d 15, 27 (Cal. 1968). The Anderson factors are not elements of the crime, and not all three factors need to be present to sustain a finding of premeditation and deliberation. People v. Garcia, 78 Cal.App.4th 1422, 1427 (2000). Instead, the Anderson factors are guidelines to aid a reviewing court in determining whether the elements of premeditation and deliberation are present, i.e., ''whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.'' People v. Perez, 2 Cal.4th 1117, 1125 (1992).

         Here, the evidence was sufficient to support the jury‘s verdict that Mr. Maldonado committed first degree murder. The identity of the killer was not seriously disputed at trial, and the focus was instead on Mr. Maldonado‘s mental state at the time Ms. Moore was killed.

         All three Anderson factors -- planning activity, manner of killing, and motive -- that tend to show deliberation and premeditation were present. Evidence was presented that Mr. Maldonado had to walk at least 20 feet to the kitchen to retrieve the knife, and walk another 20 feet back to the bedroom, where he stabbed Ms. Moore. RT 830. This evidence supported a finding of premeditation and deliberation as it tended to show some planning and time for reflection before the fatal wound was inflicted. There also was evidence that two days before he killed her, Mr. Maldonado threw a kitchen knife out of the car as he left her home, which supported an inference that he had been thinking about killing her then. Mr. Maldonado stabbed Ms. Moore with a 9-inch knife that he plunged into her chest, near her heart, to a depth of about 8 inches. The pathologist testified that a person can survive for up to 30 minutes after being wounded in the manner Ms. Moore was, and that she probably would have survived if she had received medical treatment sooner. Stabbing her in the general area of her heart and then delaying in seeking help for her --while also taking the time to hide the murder weapon in the floor vent -- supported an inference that Mr. Maldonado acted with a plan and intent that Ms. Moore die. There was evidence showing a motive for Mr. Maldonado to kill Ms. Moore: Ms. Moore recently had an abortion and was going to leave Mr. Maldonado, RT 519, 572, 616-17, and he was upset by these events.

         The evidence of prior domestic violence by Mr. Maldonado toward Ms. Moore permitted the jury to conclude that Mr. Maldonado ''was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit murder.'' CT 471 (CALCRIM 852). That domestic violence evidence included evidence that Mr. Maldonado threw a cell phone at her face, RT 184; gave her a black eye, RT 401-02; punched her in the back, leaving a grapefruit-sized bruise, RT 555-56; and slapped her in the face, RT 642-43.

         Several items tended to show consciousness of guilt.[1] Mr. Maldonado hid the knife he used to stab the victim. And Mr. Maldonado fabricated a story that Ms. Moore was injured by a shard from a mirror she fell into. Mr. Maldonado offered that version of events to the 9-1-1 operator, the police, and his relatives. It was not until the knife was found two months later that he changed his story.

         Mr. Maldonado urges that the evidence was insufficient because he ''was too drugged on methamphetamine to form'' the mental state required for first degree murder. Docket No. 6 at 10. The evidence of his drug use on the day of the killing was very weak, as Mr. Maldonado did not testify and no physical or medical evidence showed that he had methamphetamine in his system.

         Mr. Maldonado nonetheless urges that there was some support for intoxication, as his drug use was ''corroborated'' by police officer Gary Rodgers‘ testimony that, upon arriving at the scene of the killing, he (officer Rodgers) found Mr. Maldonado to be very excited, hysterical and distraught. Mr. Maldonado also notes that officer Rodgers observed some marks on Mr. Maldonado‘s body (but does not explain how those showed methamphetamine use) and notes that the police found other illegal drugs when they searched Mr. Maldonado. This evidence does not undermine the sufficiency of the evidence to support the first degree murder conviction. Mr. Maldonado‘s symptoms, which he contends were consistent with him being ''too drugged on methamphetamine, '' Docket No. 6 at 10, also were consistent with him being upset about having just killed his girlfriend, having delayed in summoning help, and having hidden the knife he used to stab her. Because the record supports conflicting inferences, the federal habeas court must presume ''that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'' Jackson, 443 U.S. at 326. Even if some evidence -- i.e., the marks on Mr. Maldonado‘s body, Mr. Maldonado‘s agitated state, and Mr. Maldonado‘s possession of other drugs -- suggested that he had consumed drugs, the jury implicitly rejected the inference that he was ''too drugged on methamphetamine'' to form the mental state necessary for first degree murder. Cf. People v. Barnett, 17 Cal.4th 1044, 1156 (Cal. 1998) (''By finding defendant guilty of first degree murder, . . . the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that . . . taking of methamphetamine interfered with his ability to form these requisite mental states.''); People v. Castillo, 16 Cal.4th 1009, 1018 (Cal. 1997) (upholding first degree murder conviction where ''the evidence of defendant‘s intoxication was equivocal at best'' and defendant ''did not claim PCP use until after he first denied any involvement in the crime'').

         Mr. Maldonado also argues that he ''had like a dream that Katrina [Moore] was arguing'' with him, then chased him with a knife, then they struggled ''and during the struggling, Ms. Moore was stabbed.'' Docket No. 6 at 10. But Mr. Maldonado does not dispute that there was absolutely no evidence of this dream presented at trial. Evidence not presented at trial does not factor into the sufficiency-of-the-evidence analysis.

         The California Supreme Court‘s rejection of Mr. Maldonado‘s due process challenge to the sufficiency of the evidence was not an unreasonable application of, or contrary to, any holding of the U.S. Supreme Court. Mr. Maldonado is not entitled to the writ of habeas corpus on this claim.

         B. Refusal To Instruct On Voluntary Intoxication

         During the discussions of jury instructions, defense counsel requested an instruction on intoxication. The trial judge determined that there was no evidence that Mr. Maldonado was actually intoxicated on the day of the killing and refused to give the instruction. RT 1200-01. Mr. Maldonado contends that his right to due process was ...

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