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Murphy v. Asuncion

United States District Court, E.D. California

June 30, 2017



         Petitioner Geoff Edwin Murphy is a state prisoner, represented by counsel, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner raises the following claims for relief: (1) instructional error; (2) the California Court of Appeal's improper refusal to consider the forfeited instructional error claim; (3) ineffective assistance of counsel; (4) erroneous limitation of expert testimony; and (5) insufficient evidence to sustain first-degree murder conviction.

         For the reasons discussed herein, the undersigned recommends denial of the petition for writ of habeas corpus.



         On July 7, 2014, Petitioner was convicted by a jury in the Kern County Superior Court of first-degree murder (count 1), making criminal threats (count 2), and two counts of elder abuse (counts 3, 4). (2 CT[1] 456, 464, 466). Petitioner was sentenced to an indeterminate term of 25 years to life plus 25 years on count 1, and a determinate term of 53 years and 8 months on counts 2, 3, and 4. (3 CT 638, 640). On July 14, 2016, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Murphy, No. F069891, 2016 WL 3885051, at *15 (Cal.Ct.App. July 14, 2016). The California Court of Appeal denied rehearing on July 25, 2016. (LDs[2] 5, 6). Petitioner filed both a petition for review and a state habeas petition in the California Supreme Court. (LDs 7, 9). The California Supreme Court summarily denied both petitions on October 19, 2016. (LDs 8, 10).

         On December 28, 2016, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent has filed an answer to the petition, and Petitioner has filed a traverse. (ECF Nos. 12, 15).



         Appellant is the son of James and Barbara Murphy. He grew up in Bakersfield, took some college courses there after graduating from high school, and served in the United States Army from 2003 to 2005 before receiving a general discharge under “other than honorable” conditions. He later sought treatment for alcohol dependency, married a woman whom he met through Alcoholics Anonymous, and relocated to Vallejo. In early 2009, appellant experienced what is described in the record as a significant “psychotic episode” and was hospitalized for mental health care. He thereafter received psychiatric treatment on a regular basis from March 2009 through June 2013.

         In July 2013, after separating from his wife, appellant moved back to Kern County to live with his parents. According to Barbara Murphy, appellant showed signs of depression during the initial weeks of his stay, e.g., crying and expressing regret for having wasted much of his adult life. With the exception of a one-month stint working as a security guard at an amusement park, he had spent the past several years unemployed and living off of his wife's disability income.

         On July 16, 2013, appellant's father took him to a mental health facility in Bakersfield known as the Mary K. Shell Center. The purpose of this visit was to find a local doctor who could prescribe medication for appellant's psychiatric conditions. Appellant returned to the same facility on July 30, 2013, but it is unclear from the record what services he received on that date, if any. A former roommate in Vallejo told Barbara Murphy that appellant had obtained a month's supply of medication before leaving for Bakersfield, but Mrs. Murphy was not aware of him taking any psychotropic medicine while he was living with her that summer.

         Appellant's depression improved toward the end of July, but the change coincided with new patterns of delusional and paranoid behavior. He claimed that the Department of Homeland Security was recruiting him for an analyst position and had offered him a $25, 000 signing bonus to accept the job. Appellant also believed the government was monitoring him through cameras and by aerial surveillance.

         On July 30, 2013, shortly before midnight, James Murphy made a 911 call for police assistance due to appellant's persistent interrogation of his mother about a conspiracy theory involving a photograph taken of him as a baby. The dispatcher advised there would be a delayed response because the police had other priorities. At 2:18 a.m., James Murphy contacted law enforcement to cancel his earlier request, since appellant had by then calmed down and the family was ready to go to sleep.

         Appellant's behavior worsened during the first week of August. He began to act as if his parents' home was a military installation and he was the commanding officer, claiming that he outranked his parents and thus had control over the premises. The assertion was nonsensical for a variety of reasons, not the least of which being that, in contrast to appellant's inglorious military experience, his father had achieved the rank of Major over the course of a 23-year career in the Army. Nevertheless, appellant posted a list of “rules” advising his parents of things they were forbidden from doing in their own house without his permission.

         On August 8, 2013, appellant's parents secretly met with an attorney to start the process of obtaining a restraining order and having appellant removed from their home. The lawyer agreed to file the necessary paperwork, but allegedly told Mr. and Mrs. Murphy it was doubtful that a judge would rule in their favor because appellant had not physically assaulted them. Later that evening, the couple's niece, Gwenn Maher, showed James Murphy how to make video recordings on his iPhone. Together they devised a plan to surreptitiously record appellant's behavior, with the goal of being able to provide the authorities with evidence of his dangerousness. Mr. Murphy implemented the plan immediately, recording his niece as she left the house and keeping the device running while he and his wife watched television. The recording lasted for over 33 minutes, but appellant did not enter the room during that time.

         On August 10, 2013, James Murphy captured video footage of appellant berating his mother for refusing to drive him to the grocery store. Mr. Murphy allowed the argument to go on for approximately seven minutes before shooting appellant with a nine-millimeter handgun, which had theretofore been concealed on or near his person. Barbara Murphy called 911 and told the dispatcher, “My husband just shot my son.... My son is crazy. He's manic depressive [and] he's off his medications.” Meanwhile, appellant overpowered his father, took control of the gun, and killed him.

         The Kern County District Attorney charged appellant by information with premeditated first degree murder (Pen. Code, §§ 187, 189; count 1), making criminal threats against Barbara Murphy (§ 422; count 2), and committing acts of elder abuse against both of his parents (§ 368, subd. (b)(1); counts 3 & 4)). An enhancement allegation was included with the murder count for personal and intentional discharge of a firearm resulting in death (§ 12022.53, subd. (d)).

         Appellant pleaded not guilty to all charges, but apparently made no attempt to raise an insanity defense. The case went to trial in June 2014.

         The prosecution built its case around a 28-minute video recorded on the morning of August 10, 2013. As mentioned, the subject incident was documented on an iPhone, which James Murphy had placed in an upright position behind where he was sitting when the events unfolded. The video shows Barbara Murphy, then 69 years old, lounging in a recliner located across from Mr. Murphy and to his left-hand side. The camera remains stationary during most of the recording, facing toward the interior entryway of the house, and the angle is just wide enough to show the front of Barbara Murphy's chair. She spends much of the video sitting or reclining, so viewers often see only her legs.

         Barbara Murphy had promised to take appellant to the grocery store earlier that morning, but asked him to wait for one hour while she rested. The defense would later argue Mrs. Murphy had no real intention of driving him to the store, but agreed to do so knowing he would become angry and lash out when she went back on her word. In any event, the video begins with appellant's parents having a private conversation in their living room:

Barbara: Do you have a plan?
James: I don't- Barbara: How do you want to proceed on this?
James: Hmm?
Barbara: How do you want to proceed on this?
James: He's got to physically assault one of us.
Barbara: No, he doesn't.
James: Well, there's no way-other way to stop it other than when you-by calling 9-1-1, yeah. We hope.
Barbara: They- James: They still have to get here before he does something.
Barbara: I would like you to record if you could. Alright?
James: I have it on.
Barbara: Okay. Because if they come out and he's reasonable we just look like we're stupid.
James: What?
Barbara: If we don't record something and he does not assault us we're going to look stupid if we don't have a recording to show what's going on.
Following this discussion, Mr. and Mrs. Murphy briefly chat about unrelated topics and then remain silent for nearly eight minutes. Appellant can be seen walking in and out of the room during this interval. It is apparent from the video that he is a large and physically fit man. Elsewhere in the record, appellant is described as being 6'2” and weighing between 220 and 230 pounds. James Murphy was similar in size, standing at 6'1” and weighing 206 pounds, but the age difference between father and son was more than 40 years.
Appellant's argument with his mother occurs while Barbara Murphy is seated in her recliner and appellant is standing in front of her, though he sometimes paces about the room. The following excerpts contain most of their seven-minute conversation, with slight modifications to the transcript for purposes of readability and annotations regarding the parties' respective movements. Appellant generally speaks in a conversational tone, but there are times when he suddenly screams at the top of his voice. The latter instances are denoted with capitalized type, both here and in the original transcript.
Appellant: About ready?
Barbara: No.
Appellant: Well, uh, you want to go?
Barbara: No.
Appellant: You don't want to go?
Barbara: Geoff, I'm not feeling good.
Appellant: Alright, so I'll just go.
Barbara: You're not going to just go.
Appellant: How the fuck are you going to tell me that? I want to go. And you guys can just stay here and do your thing, but I need some things that I need to take care of.
Barbara: Like what?
Appellant: None of your fucking business. How about the groceries? How about a couple of things? I don't have much time here. I don't. [Turns to address James Murphy] Care to weigh in dad? Father? So- Barbara: Your dad said- Appellant: -anyway- Barbara: Dad said to make a list- Appellant: I['ve] got a list. You're not going to get my list. I'm going to go. So either you're up now or what.
Barbara: I want to- Appellant: I'm not going to sit here and do this. This [-] you're [not a] child. You're older than me, okay. You know what the fuck I'm saying, it's coming out [of my mouth]. We're going. Now. Me and you.... Five minutes.
Barbara: I'm not going to be ready.
Appellant: Well then give me the keys ‘cause I'm going.
Barbara: No, I'm not giving you the keys.
Appellant: Well then I'm calling the fucking police.
Barbara: Call the police.
Appellant: You ready for that?
Barbara: Yeah.
Appellant: Alright good. Oh, that's right you guys have already tried. Didn't, didn't work out did it? [Apparently referring to the 911 call made on July 30, 2013.]
Barbara: Yeah, you probably aren't going to get any further than I did.
Appellant: Oh, isn't that interesting. You think so?
Appellant: Yeah, so you about ready?
Barbara: No.
Appellant: [Unintelligible statement.] BITCH THIS IS A PRISON!
[James Murphy leans forward in his chair and reaches toward the lower middle section of his back with his right hand.]
Barbara: No, it's not.
Appellant: YOU DO WHAT I SAY! ... Why are you being so fucking combative? [Voice becomes calm again.] I see you're tired [and] not feeling well, why don't you just give me [the] car and give me a few bucks and I'll go take care of it.
Barbara: Geoff we had such a nice day yesterday.
Appellant: I don't give a shit. I hope it was wrecked with thoughts about how fucking terrible this can continue to be, should you continue on like this. Let's go.
Barbara: Geoff- Appellant: GEOFF WHAT?! Let's go.
[James Murphy sits back in the chair and crosses his legs.]
Appellant: That's right, you've got an order. You want to disobey the whole fucking United States right now?
Barbara: Yeah, I'd like to see it in writing.
Appellant: [Raising his voice again] I have it in writing bitch. It's right here.
Barbara: Well go show me.
Appellant: You're not going to get anything, ‘show me, ' this ain't the “Show Me State!” [Barbara Murphy finds this comment amusing.]
Appellant: Yeah, that's a good one actually.
Barbara: [Chuckles] It was quite funny. I, I don't know why you can't wait.
Appellant: Why do I need you? You fucking forgot, all you are right now is [a] goddamn checkbook.
Barbara: Well that might be- Appellant: [Mimicking his mother] “That might be.” You don't have word edgewise. You want me to shut you down totally? [Raising his voice] Shut up. You're the one I got to get through [to], Dad already gets it. He's ex-military so he knows what to do. He knows fucking better. You don't do what you're doing right now to me.
Barbara: What am I doing?
Appellant: I'm giving you a fucking order bitch. That means let's get up and go. That either means when I said five minutes I'm ready to go and I saw your ass standing over here-at or- Barbara: Excuse me.
Appellant: -or what?
Barbara: You already and I already agreed ...

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