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Miller v. Lackner

United States District Court, E.D. California

May 12, 2017

HEIDI M. LACKNER, Respondent.



         Petitioner is a California prisoner proceeding through counsel with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted by a jury in Sacramento County of second degree murder based upon a theory of aiding and abetting. The jury also made a “special finding” regarding firearm use which resulted in petitioner's sentence being enhanced by one year; petitioner is serving an aggregate sentence of 21 years-to-life imprisonment. Petitioner's only claim is that the evidence presented at trial is not constitutionally sufficient to support his conviction. For the reasons set forth below, the court recommends that the petition for writ of habeas corpus be denied.

         I. Background

         In an unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Accused of aiding and abetting his putative stepfather's shooting of a Crip gang member, defense counsel argued that not every criminal act by a gang member is gang related, and defendant Darrell Miller had no idea that his stepfather was going to fire at three people walking down the street. The jury did not find him guilty of the alleged gang enhancement, although he, his stepfather, and his good friend, who was also an occupant of the car at the time of the shooting, were all validated members of Blood gangs. On appeal, he contends there is insufficient evidence to support his conviction for second degree murder . . . . We disagree . . . and affirm the judgment.
. . . .
Eighteen-year-old defendant Darrell Miller grew up with the prosecution's key witness Tyvone Allen. They were best friends, like brothers. Codefendant Torrey Adams had been Miller's mother's boyfriend for many years. Defendant thought of Adams as his stepfather, although Adams proved to be a very poor role model. Adams sold drugs, carried weapons, committed gang-related assaults, and ultimately shot and killed the victim in this case, Antonne Nelms. A gang expert for the prosecution testified that defendant and Allen were validated members of the Oak Park Bloods; Adams also was a Blood gang member but belonged to a different clique.
The prosecution's theory that defendant aided and abetted the shooting is based on circumstantial evidence rooted in several events preceding the shooting that involved defendant. Indeed, the prosecutor argued that this case is all about defendant Miller. Defendant insisted it was all about codefendant Adams. Two separate juries were impaneled to hear the case against each of them.
Preliminarily, we must provide the relevant gang context. Before his untimely demise, Robert Haynes was also a member of the Oak Park Bloods. Defendant and Allen were close friends of Haynes. A member of the Barksdale family founded the G-Mobb gang, which does not claim either Blood or Crip affiliation and includes cliques such as Guttah Boyz and Starz. In 2008 several Oak Park Bloods, including Haynes, showed up at a G-Mobb party and a shootout ensued. One of the Barksdale brothers, a Guttah Boyz member, killed Haynes, and the killing sparked an increase in unprovoked violence between the two gangs. Defendant has a tattoo memorializing his friend.
On December 14, 2010, defendant went to a barbershop to get dreadlocks and ran into two old friends. He saw a man approach one of the barbers, and as the man pulled his pants up by the belt loops, defendant saw he had a gun. As another Barksdale brother, Marvion, approached, a gun battle erupted and defendant ran. Defendant was wounded and Barksdale was killed.
Six days later defendant and Allen planned to visit Haynes' grave site to commemorate his birthday. Adams arrived unexpectedly and invited defendant and Allen to accompany him on a shopping errand. When they got into Adams' car, Adams gave his gun to defendant and defendant slipped it into his sling. At a shopping center in South Sacramento, Adams made a payment on a watch. Defendant then gave the gun back to Adams.
Adams drove to another shopping center in the middle of Starz territory and purchased an Astros baseball hat, a hat associated with the Starz gang. After leaving the shopping center, defendant pointed out a man he had been in a fight with a year earlier. The man, Eric Harris, was walking with his friends, Tushawn Cooks and the victim, Antonne Nelms. All three were Crips. Adams drove a little farther down the street, then abruptly backed into a gated driveway. Allen saw a police car drive by just before Adams opened fire on the trio. Nelms died at the scene.
Defendant would later describe his fight with Harris and its aftermath in some detail. “Yeah. We fought. Well look it was some stupid ass shit man. I'm at my girl house, um they - they used to live right downstairs from her, you feel me. I was livin with my bitch for a little bit. So me and her little brother on the balcony cuz we drinking some Hennessy up, passing it back and forth. They come - they come out and they like uh - like uh - he like - it was some weird, some little black ass dude they use to kick it wit, he was just running his mouth talking to my little brother. He like uh - he like yeah bitch as nigga, wasn't you the one that uh - woo - woo - woo. You know we can have words a minute though if I come up, come to the front so we can fight or some shit. It's three - the three of em and then it's two of us. I'm like nigga okay nigga, fuck you niggas, we not gonna come out there so y'all can man, whatever y'all gonna do. You know what I mean. So, look we wait til the morning. You wake me up, they go out, I go - I go downstairs for the - from the Slopes I go downstairs, they all outside, ah blah rah rah ah bla bla bla. So, I'm just watchin, I'm just watchin hard, ain't got nothing to do with y'all you feel me. I'm just watchin. So they - they - it was three of em against my little bro and my - and his big brother, they was gonna go try to jump him so I rushed the dude with the dreads, woo. I fight wit him, we start going back and forth and somehow uh he get on top of me and kicked me in my face and I hit my head on the ground, you feel me. So like a week - a week or two later them niggas copped a little pistol or something, you feel me. They copped a little gun, they - they was out there showing it off and shit. I don't know, I guess they got it for us. We - it wasn't - it wasn't no - we wasn't gonna take it that far, you feel me. It wasn't, fuck it we just fought, so what. But why - why we gotta go to gun play, you feel me. I told my big nigga like man, he heard about the shit. He heard the dude kicked me in my face and you know I was out for a little bit and he didn't like it. And that was that.” (Transcript quoted verbatim.)
After the shooting [of Nelms], defendant borrowed Adams' car to drive to Haynes' grave site with Allen and defendant's twin sister. Allen testified the car smelled like gunpowder, but other than noticing the smell, they did not discuss the shooting. According to Allen, who had entered into an agreement with the prosecution whereby his maximum 13-year sentence would be reduced to 5 years, defendant later told him, “Just don't talk about it, ” and sent him a text message that read, “Keep that shit in the car, bro.”
Defendant, Adams, and Allen were arrested nearly two months later. Adams was in possession of 5.36 grams of cocaine, $3, 500 in currency, and six cell phones. During extensive interrogations, defendant and Allen both told their interrogators that Adams was the shooter. The prosecution mined the transcripts of the interrogations for damming excerpts that defendant maintains were misleading because they were presented out of order and out of context. At a minimum, the transcripts are difficult to interpret because they are full of lies and obfuscations, spoken in a somewhat foreign vernacular. Suffice it to say, the jury could draw many reasonable inferences from what defendant, Adams, and Allen said to each other and to the interrogators.
For many hours, Adams denied defendant's and Allen's accusations that he was the shooter. At the same, he did not want to accuse either of them, which left him in a difficult situation. Ultimately, however, he admitted shooting at the three men but denied he intended to kill anyone. According to both Adams and defendant, the killing was accidental.
What everyone did agree upon, including the participants as well as the interrogators, was the painful fact that the killing was senseless. The transcripts simply do not provide any clarity as to why the victim was shot and killed. The prosecutor insisted that Adams, at defendant's urging, shot at the three men, including Harris, in retribution for the fight Harris had been in with defendant a year earlier. In the prosecutor's view the entire incident was gang related and part and parcel of the gang culture in which they participated. Even Adams, the prosecutor contended, denied that the shooting was totally random and resisted the notion that he was some monster who shot people for no reason at all. He stated, “[A]in't like, you know, we targeted them mother fuckers for any old reasons.”
We know now, of course that the jury could not agree that defendant's conduct was gang related. Defendant points to other statements Adams made during the interrogations to suggest that Adams alone made the decision to shoot toward the group, including the man defendant had identified as someone he had fought a year earlier. Because the older Adams had a tortured past himself from his involvement in gangs, he was afraid the young “stepson” might have “the tendency maybe to do something.” He explained, “I wanted to kind of like, not to say, take all your stripes. I didn't want ‘ya all [sic] to go through that crap. I've been through it already.” As the interrogator paraphrased Adams' statements, “[y]ou were protecting him from himself.” Adams concurred. By then, Adams had confessed, and reflecting on the special relationship he had with defendant, he acknowledged that defendant did not ...

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