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Craig v. Ducart

United States District Court, S.D. California

November 22, 2017

DONTAYE CRAIG, Petitioner,
C. E.DUCART, Warden, Respondent.



         Petitioner Dontaye Craig, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") challenging his conviction in San Diego Superior Court Consolidated Case No. SCD 225297.[1] [Doc. No. 1, at p. 1.] The Petition raises a single claim - whether the trial court violated petitioner's constitutional right to Due Process when it denied his request for access to recorded jail telephone conversations of a key witness for the prosecution that petitioner subpoenaed from the Sheriff's Department that operates the jail. [Doc. No. 1, at pp. 6-7.] In his Traverse, petitioner argues that access to the recorded jail telephone conversations would have resulted in a different, outcome at trial because of the overall "closeness" of the case. [Doc. No. 13, at p. 5.] In support of this contention, petitioner's Traverse includes a copy of a portion of his opening brief in the California Supreme Court arguing that his conviction is not supported by substantial evidence. [Doc. No. 13, at pp. 6-11.]

         This Court has reviewed the Petition [Doc. No. 1]; respondent's Answer and supporting Memorandum of Point and Authorities [Doc. No. 11]; the Lodgments submitted by respondent, including the state court record [Doc. No. 12]; and petitioner's Traverse [Doc. No. 13]. For the reasons outlined below, IT IS HEREBY RECOMMENDED that the District Court DENY the Petition.


         In reviewing a federal Petition for Writ of Habeas Corpus, this Court gives deference to the state court findings of fact and presumes them to be correct. Petitioner may rebut this presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992). In this case, a lengthy recitation of "the evidence most favorable to the judgment" is included in the California Court of Appeal's decision on direct appeal, which affirmed petitioner's judgment and conviction, but reversed with directions on certain matters related to sentencing. [Doc. No. 12-45, at pp. 4 n.3; 4-12.] This lengthy recitation of facts will not be repeated here in full, because only some facts are significant to the single issue raised in the Petition.

         Petitioner and his friends, Marlon Johnson, Fredrick Roberson, and Rashad Scott, who were all active members of the Emerald Hills street gang, went to the Gaslamp Quarter in downtown San Diego late on the evening of May 23, 2009. [Doc. No. 12-45, at pp. 2, 4.] Johnson was the driver. After Johnson parked the car near the intersection of E Street and Fifth Avenue, the group walked west together on E Street. [Doc. No. 12-45, at p. 5.] Near the closing time for the bars in the Gaslamp (i.e., early in the morning on May 24, 2009), petitioner and his friends encountered rival gang members and a fight began on the crowded street of people leaving the bars in the area. [Doc. No. 12-45, at pp. 5-7.] Multiple shots were fired, and petitioner and his friends ran back to Johnson's car, got in, and drove away. [Doc. No. 12-45, at p. 7.]

         A rival gang member, Richard Turner, was shot multiple times and seriously injured. [Doc. No. 12-45, at pp. 5, 7.] A young bystander, Lakiesha Mason, who was celebrating her 21st birthday, was shot in the head and killed. Another bystander, Willy Aldridge, was shot in the back and seriously injured. [Doc. No. 12-45, at p. 7.]

         Johnson was arrested about a year later in March of 2010, and after being in jail for more than a year, he agreed to cooperate with the investigation and to testify against his friends and fellow gang members in exchange for a guilty plea to voluntary manslaughter and an admission to a gang allegation with a potential prison term of three to eleven years. [Doc. No. 12-6, at pp. 25; 12-45, at pp. 7-8 n.4.] Although there was other evidence connecting petitioner, Roberson, and Scott to the shooting, Johnson was the prosecution's key witness. In video and photographs taken around the time of the shooting, Johnson identified himself, Roberson, and Scott. He also testified that petitioner was standing to his left and slightly behind him when the photographs were taken, and in one of the photographs, it appeared that petitioner's arm was extended. [Doc. No. 12-45, at p. 8.]

         In other key testimony, Johnson said that when they were all inside of his car after the incident, he asked who did the shooting. According to Johnson, "[petitioner], who was in the front seat, was holding a gun and admitted he was the shooter." [Doc. No. 12-45, at p. 8.] There was also some evidence indicating that Roberson was the shooter. [Doc. No. 12-45, at p. 2.]


         On August 27, 2010, a grand jury returned an indictment against Johnson and Roberson for the murder of Lakiesha Mason; the attempted murder of Richard Turner; and assault with a firearm on James Aldridge under Case No. SCD 225297. [Doc. No. 12-36, at p. 26.] On June 7, 2011, Johnson signed an agreement to testify for the prosecution against petitioner, Roberson, and Scott. [Doc. No. 12-22, at pp. 74-79.] Shortly thereafter, on June 17, 2011, petitioner and Scott were arraigned on the same charges under Case No. SCD 234772. [Doc. No. 12-36, at p. 27.] As noted above, the case was later consolidated under Case No. SCD 22S297.[2]

         A preliminary hearing commenced on September 29, 2011, and Johnson, who had been placed in protective custody, testified for the prosecution as agreed. [Doc. No. 12-22, at pp. 6-7, 12-23, 80-102.] His testimony at the preliminary hearing was consistent with his later testimony at trial. As summarized above, he implicated petitioner, Roberson, and Scott in the incident and said petitioner admitted he was the shooter. [Doc. No. 12-22, at pp. 74 et seq.]

         On November 14, 2011, two investigators for the prosecution went to the jail and advised the facility commander they wanted to search cells occupied by Roberson and petitioner. They were then given access to the cells and were able to "tag and bag" all pieces of mail, letters, envelopes, correspondence, writings, and legal mail belonging to petitioner and Roberson in the presence of the facility commander. [Doc. No. 12-28, at pp. 62-65, 71-72 (Exhibit A).] The bag of evidence was then turned over to the prosecution unit for processing. [Doc. No, 12-28, at p. 72.]

         On December 6, 2011, about three months after Johnson testified for the prosecution at the preliminary hearing, petitioner served the San Diego County Sheriff with a Subpoena Duces Tecum requesting production of the following documents and information: (1) a list of Johnson's visitors; (2) copies of Johnson's mail and e-mails; (3) a list of Johnson's phone calls; (4) copies of Johnson's recorded phone calls; (5) Johnson's housing records, including names of all cell mates; and (6) all of Johnson's movement records. [Doc. No. 12-28, at pp. 30-32.] The San Diego County Sheriff complied with the subpoena by delivering the requested materials to the trial court. [Doc. No. 12-28, at p. 24.]

         As outlined more fully below, the portion of petitioner's subpoena that seeks access to Johnson's recorded jail calls was extensively litigated in the trial court starting on January 13, 2012 with an "informal conference to address records subpoenaed pursuant to a subpoena duces tecum issued ... on behalf of [petitioner]." [Doc. No. 12-1, at p. 9; Doc. No. 12-35, at p. 62.] During this initial conference, the trial court asked whether anyone objected to the release of the subpoenaed records to petitioner's counsel. The prosecutor said, "I don't object." [Doc. No. 12-1, at p. 11.] However, the prosecutor and Johnson's counsel indicated it would be necessary for the trial court to conduct an in camera review of the records to avoid the release of any private or privileged information. [Doc. No. 12-1, at pp. 11-12.] The trial court indicated it would complete a "quick review" of the records, remove any privileged materials, and release "everything else" to petitioner's counsel. [Doc. No. 12-1, at p. 13.] The trial court added as follows: "My thought is that the record is clear, I don't see what's happening here to be a fishing expedition, and I think that, frankly, the Sixth Amendment right to have counsel be able to function effectively and to confront and cross-examine effectively are implicated here, and I think that unless there is some really strong privilege that would outweigh that, [petitioner's counsel] gets them. But I think it would be a good idea if I looked through them in camera." [Doc. No. 12-1, at p. 13.] In addition, the trial court stated that its "Sixth Amendment comments" were based on the fact that Johnson testified for the prosecution and was cooperating in the case. [Doc. No. 12-1, at p. 14.]

         At the next pre-trial conference on January 26, 2012, the trial court requested briefing from the parties on the subpoena matter and set the matter for hearing on February 15, 2012. On February 7, 2012, petitioner filed a Motion for Order to Disclose. In the Motion, petitioner argued that Johnson's recorded jail telephone conversations should be transcribed for an in camera review by the trial court. To the extent the conversations included impeachment or exculpatory evidence, petitioner argued they should be released to counsel, because they were important to the defense. Petitioner and his co-defendants were facing life sentences, and Johnson testified as the primary witness for the prosecution at the preliminary hearing and was allowed to enter a plea for approximately 11 years of incarceration. [Doc. No. 12-28, at pp. 21-29.]

         The prosecutor filed an Opposition to the Motion to Disclose on February 8, 2012. [Doc. No. 12-28, at p. 36.] The Opposition states that the prosecutor was "surprise[d]" that the Sheriff's Department complied with the subpoena and did not file a motion to quash. [Doc. No. 12-28, at p. 37.] In general, the prosecutor argued that the subpoenaed materials should not be released to any of the defendants without a showing of "good cause and materiality." [Doc. No. 12-28, at p. 37.] With respect to housing and movement records, the prosecutor did not object to disclosure of this information to defense counsel as long as it was not given to the defendants directly in order to protect Johnson's safety and security. [Doc. No. 12-28, at pp. 37-38.] The prosecutor did oppose the release of the names of Johnson's visitors and cell mates. In the prosecutor's view, this request was a "fishing expedition" so that the defendants could contact visitors and cell mates hoping they might provide relevant evidence. [Doc. No. 12-28, at p. 38.] The prosecutor opposed release of electronic recordings of Johnson's phone calls absent a showing of good cause, because it would require the trial court to conduct an extensive in camera review to redact confidential or privileged matters. The prosecutor estimated there was about 60 hours of recorded conversations and transcribing them "would take at least a month." [Doc. No. 12-28, at 38-39.] On the other hand, the prosecutor conceded that the trial court should release the records to defense counsel to the extent they were relevant and did not contain confidential, constitutionally protected, or privileged information. [Doc. No. 12-28, at p. 42.]

         Johnson also filed an Opposition to the Motion for Order to Disclose. He argued that the subpoenaed materials should not be disclosed because there was no showing of good cause and because some of the materials might be privileged. [Doc. No. 12-38, at pp. 15-18.]

         On February 15, 2012, the trial court heard oral argument on the Motion for Order to Disclose. [Doc. No. 12-21, at p. 10 et seq.; Doc. No. 12-35, at p. 64.] The trial court told the parties that the Sheriff's Department complied with the subpoena by delivering all of the materials requested to the trial court except for e-mails. [Doc. No. 12-21, at pp. 11-13.] The trial court said it "started listening" to some of Johnson's recorded jail telephone calls to screen out any privileged materials but indicated they were "not easy to hear" and included "a great deal of... ethnic speech ... that I don't... fully understand." [Doc. No. 12-21, at p. 13.] Because of this difficulty and the volume of materials that were produced, the trial court decided to request briefing from the parties to ensure that the defendants were not on a "fishing expedition." [Doc. No. 12-21, at p. 14.] The trial court explained as follows:

One can imagine, if the defense were to hit a gold mine in this case, finding a telephone call from a cooperating individual to the effect of, 'you know, I'll say anything I have to say to get out from under my beef and to shorten my sentence, and so go find out anything you can so I can tell the police I know this.' [¶]One can imagine a cooperating individual making a similar statement to anybody he's housed with or sitting on the bus next to: 'Do you know anything about this case that I can say to tell the cops so I can testify and throw somebody else down and get off of this?' [¶]Maybe less dramatic might be a situation where the witness just says something factually, which defense counsel from their review of the discovery might know is inconsistent with what he's told the police or the investigators, and that might be admissible evidence.
Please let me emphasize, I have zero reason, zero cause to believe that any of these things have happened in this case. I [am just] imagining these kinds of scenarios as reasons why the defense would want to get access to everybody he's talked to and everybody he's been housed with, so that they can go talk to them and try to find out. [¶] And, of course, that adds another layer of complexity, because some of those people are no less - are subject to all the credibility concerns that the cooperating individual is. So the bottom line is I'm asking counsel for guidance on these points. [¶I]s there some showing of good cause that has to be made to gain access to these materials that were produced by the sheriff pursuant to the subpoena duces tecum?
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But my question is: Is there some showing of good cause before the court is required to give access to these materials to the defense?
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The second question: If something more is required, what is it? Is it akin to probable cause? What kind of showing, if a showing needs to be made, is there to - that some nugget that the defense might use or that might lead to discoverable evidence is likely to be in this voluminous material?
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Thirdly, ..., if the court's already said he's got no expectation of privacy in a jail cell, how is there an expectation of privacy that will attach to these telephone records?
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I don't say this lightly. I acknowledge the concerns that we all have, both conscientious prosecutors and conscientious defense attorneys and courts, of the problems that are inherent with cooperating individuals who are testifying. And every one of us, no matter what side of ...

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