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Xiong v. Hatton

United States District Court, E.D. California

November 21, 2019

TOU VANG XIONG, Petitioner,
S. HATTON, Warden, Respondent.


          Sheila K. Oberto, United States Magistrate Judge.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a sentence of 112 years-to-life for his conviction of two counts of second degree murder and one count of attempted murder. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.


         On February 7, 2014, in Stanislaus County Superior Court, a jury found Petitioner guilty of two counts of first degree murder (Cal. Penal Code § 187), one count of attempted murder (Cal. Penal Code §§ 664, 187(a)), one count of assault with a deadly weapon (Cal. Penal Code §245(a)(1)), and attendant firearm enhancements (Cal. Penal Code §§ 12022.53(d); 12022.5(a)). (Doc. 20-3 at 2-6.[1]) On June 30, 2014, Petitioner was sentenced to a combined indeterminate term of 132 years to life plus a determinate term of 7 years in state prison. (Doc. 20-3 at 80.)

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On July 20, 2016, the Fifth DCA reversed the convictions for first degree murder and premeditated attempted murder and remanded the matter back to the superior court for retrial or resentencing. (Doc. 21-10 at 79-80.) In all other respects, the judgment was affirmed. (Doc. 21-10 at 79.) On remand, the superior court resentenced Petitioner to a term of 112 years to life. (Doc. 21-11.) Petitioner then filed a petition for review in the California Supreme Court. (Doc. 21-12.) The petition was denied on October 19, 2016. (Doc. 21-13.)

         Petitioner also sought collateral relief in the state courts. On December 11, 2017, Petitioner filed a petition for writ of habeas corpus in the Stanislaus County Superior Court. (Doc. 21-14.) The superior court denied the petition in a reasoned decision on April 26, 2018. (Doc. 21-17.) Petitioner then filed a habeas petition in the Fifth DCA on June 21, 2018. (Doc. 21-18.) The petition was denied on September 15, 2018. (Doc. 21-19.) He then filed a habeas petition in the California Supreme Court. (Doc. 21-20.) The petition was summarily denied on March 20, 2019. (Doc. 21-21.)

         On April 26, 2019, Petitioner filed a petition for writ of habeas corpus in the Sacramento Division of this Court. (Doc. 1.) On May 2, 2019, the matter was transferred to the Fresno Division. (Doc. 6.) On August 7, 2019, Respondent filed an answer to the petition. (Doc. 19.) On October 3, 2019, Petitioner filed a traverse. (Doc. 27.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:


         Prosecution Evidence

         The Charged Offenses

As of July 20, 2009, Xay Yang resided in the 1700 block of Radley Place, Modesto. [Fn.2] Xay, who is Hmong, explained there are approximately eight last names in the Hmong culture. If two people share the same last name, they are automatically part of the same clan. It is considered taboo to date or marry someone from the same clan, even though blood ties, if any, may be very distant. Clan members refer to each other as cousins or, in the case of someone older, grandparent or aunt or uncle, even if they are not blood relations.
[Fn.2] To avoid confusion, we refer to the Yangs and certain other individuals by their first names. No. disrespect is intended. We also refer to the scene of the shooting, which was the address at which Xay lived, as dwelling A, and to the house directly across the street as dwelling B. Undesignated references to dates in the statement of facts are to the year 2009.
Nhia Yang was Xay's brother. As of July 20, he was living in a detached room behind dwelling A. The room had two doors and a small window, as well as electricity, but no kitchen or bathroom.
Xyeem Yang had known defendant for two months as of July 20. They were “[b]uddies.” They lived together in Winton, along with Xyeem's “uncle, ” Bee Yang, Bee's son, and Gao Yang. [Fn.3] Gao and defendant had been going out as long as Xyeem had known defendant.
[Fn.3] Bee was not really Xyeem's uncle, but Xyeem referred to him as such as a sign of respect. Xyeem had known Nhia most of his life, but was not sure if there was a close family relationship.
Lee Pao Yang lived in the same residential complex as defendant, and they became friends. As of July 20, they had known each other since Lee got out of jail, following a receiving stolen property conviction, in June. Gao, Lee's distant cousin, introduced them. Lee had known Nhia two or three weeks. Defendant introduced them. During the time they knew each other, Lee and defendant smoked crystal methamphetamine together approximately twice a day almost every day. Defendant furnished the drugs. Lee did not know where he got them, although he personally saw defendant sell drugs.
Around 5:00 or 6:00 Saturday evening, July 18, Xyeem, defendant, Gao, and Lee went to a party in Modesto. Lee did not want to go and said he had to attend an uncle's funeral in Sacramento, but defendant pointed a gun at him and said if Lee did not go with him, defendant was going to take Lee's “whole family to a different place.” Defendant took what Xyeem believed to be an AR-15 firearm in the car with them. He said it was for protection, but did not say protection from what. [Fn.4] Xyeem did not remember what happened from the time of the party into the next day, because he was drinking. He did see Gao and defendant arguing for a little bit; however, this was typical of their relationship. Xyeem saw them arguing every day about their relationship. Both would yell and accuse the other of cheating. Then they would make up.
[Fn.4] In the past, Xyeem had seen defendant with a .357 revolver and a .380 pistol in addition to the AR-15. According to Lee, defendant wrapped the AR-15 in a white towel and put it in the trunk just before they left for Modesto.
The group stayed at the party until early Sunday morning, July 19. They then went to Nhia's home, the detached room behind dwelling A. They all smoked methamphetamine, including Nhia, who had also been at the party. [Fn.5] At some point (Lee believed around 3:00 or 4:00 a.m.), everyone fell asleep. Xyeem was in the main house. Lee slept on the couch in Nhia's room. Nhia slept on one bed. Defendant and Gao slept on the other bed.
[Fn.5] Lee originally denied doing drugs to police because he was on probation. The five of them (Lee, Nhia, Xyeem, Gao, and defendant) smoked methamphetamine furnished by defendant on multiple occasions over the course of the weekend, although most of the times, Xyeem and Lee did not join in.
Sunday morning, everyone woke and started going about their day. According to Lee, they all did drugs and then ate breakfast in the kitchen of the main house. According to Xyeem, defendant said something about people wanting to do “voodoo things” to him. Defendant, Gao, and Xyeem went out to buy food and go to the Buddhist temple. [Fn.6] It was defendant's idea to go to the temple. He wanted to be blessed. He said he thought there was a bad spirit in him and he wanted to get rid of it. After they left the temple, they bought some groceries, then went home and cooked.
[Fn.6] Nhia and Lee stayed home. Lee did not call the police at this time to report defendant had threatened his family, because he was afraid defendant would return, learn he had called from Nhia, who was defendant's best friend, and do something to Lee's family or shoot him.
Lee estimated defendant and Gao were gone until night, perhaps six or seven hours. Just before defendant, Gao, and Xyeem left, Lee saw defendant bring the AR-15 into Nhia's room. It was still wrapped in the towel.
Xyeem recalled that he, defendant, and Gao returned to Nhia's room and smoked some methamphetamine. At some point, Gao cooked, and they ate in the living room of the main house. They then returned to Nhia's room. This was Sunday night, July 19. Around 10:00 p.m. or midnight, defendant, Gao, and Nhia went to Walmart to get some clothes. After they returned, defendant and Gao argued about being possessed and cheating on each other. At some point, defendant pulled out a revolver, unloaded it except for one bullet, spun the cylinder, pointed it at Gao, and pulled the trigger. Defendant was smiling when he did it. Xyeem had seen defendant do the same thing two or three times when arguing with Gao. Because Gao and defendant were getting violent, Xyeem put the AR-15 between Nhia and the bed. He also told defendant to “be cool.” Defendant “chill[ed] out” after that. The five of them - defendant, Gao, Xyeem, Nhia, and Lee - then smoked methamphetamine “a couple times.” About two hours later, around midnight or 1:00 a.m., Xyeem went to the front bedroom in the main house to sleep.
Lee recalled that defendant, Gao, and Xyeem returned around 8:00 or 9:00 p.m. Defendant brought some food and crystal methamphetamine into Nhia's room. Nhia cooked the food, and they all ate in that room. They all smoked some of the methamphetamine. Lee estimated the five of them had around four puffs each. After that, they just sat around and talked. This was around midnight. Lee was lying on the couch, texting his girlfriend on defendant's phone. [Fn.7] He was not paying attention to anything going on in the room.
[Fn.7] Lee did not have a phone of his own. Defendant loaned him his. Everyone went to bed between 1:00 a.m. and 2:00 a.m., with Lee, Nhia, defendant, and Gao bedding down in Nhia's room. As on the night before, defendant and Gao were on one bed, Nhia was on the other bed on the other side of the room, and Lee was on the couch. Xyeem was in the front house.
Sometime after everyone went to bed, Lee, who was still texting his girlfriend, heard defendant and Gao moving and whispering as they tried to have sex. Gao did not want to have sex while Lee and Nhia were in the room, and she and defendant started arguing. It was commonplace for them to argue; Lee estimated they argued about twice a week, and he basically ignored it. [Fn.8] This night, the argument went on and on. Lee tried to sleep, but had to use the bathroom and so he got up around 4:30 to 5:00 a.m. and entered the front house through the French door in the back. The lights were off in Nhia's room. Defendant and Gao had been loudly arguing for an hour or two. At no time that evening had Lee seen defendant pull a gun on Gao. At the time Lee left the room, the rifle was between defendant's and Nhia's beds.
[Fn.8] Lee testified at the preliminary hearing that the relationship between the two was fine, and they argued once in a while, mostly over money and drugs.
Because he did not feel comfortable listening to Gao and defendant argue, Lee remained in the bathroom a good 15 to 20 minutes. When he returned, the lights were on in Nhia's room. Defendant and Gao were still yelling at each other. Nhia had gotten out of bed and was sitting on a chair. Gao was sitting on the bed. Defendant was holding the rifle. He was the only person in the room holding a weapon.
Gao and defendant argued for another five minutes or so, then defendant fired five shots into the ceiling by Nhia's bed. He was very angry. Everyone fell silent and looked at him. He then pointed the AR-15 directly at Gao, who put her hands up to try to protect her face, and fired three times without saying anything. The bullets struck Gao in the face, and she fell on the bed. Defendant then started to swing the gun at Lee, who was standing in the doorway, and Lee crouched and ran as gunfire came his way.
Lee ran around the house, then stopped to check if he had been hit. He realized he had been shot because blood was coming from his mouth. [Fn.9] He heard defendant say, “This is what you get, Nhia.” Defendant sounded angry. Lee heard a couple of gunshots a couple seconds after defendant spoke, and he took off running again. He ran for several blocks, because he was scared of defendant chasing after him and killing him. He called 911 on defendant's phone.
[Fn.9] Lee was struck on the chin and both arms. He ultimately was hospitalized for two weeks as a result, and had to have surgery to have his chin reconstructed and his teeth repaired. Afterward, his jaw was wired shut for six months.
On the night of July 19 and into the early morning of July 20, Xay, who was a fulltime student and also worked, was finishing up her homework in her room, which was adjacent to the walkway separating Nhia's room from the main house. She was completely sober.
Xay went to bed around 2:00 a.m. on Monday, July 20. She subsequently was awakened by a few loud pops that seemed to come from the direction of Nhia's room. She looked at the clock; it was 5:20 a.m. She heard Nhia say something like, “Hey, man, ” or “Eh, man.” He seemed surprised and confused. His voice came from inside his room. Xay then heard three or four more shots.
Not realizing at the time she was hearing gunshots, Xay ran toward the French door, which was the only exit directly into the backyard, to see what was going on. She saw defendant standing on the walkway a couple of feet from the French door and four or five feet from the east entrance to Nhia's room. Defendant was holding a rifle and a handgun. He was pointing the rifle toward the east door of Nhia's room. He appeared cautious, as if he was still waiting for someone. He did not ask Xay for help or to call an ambulance. He told her, “You guys set these tigers on me, ” and that there were tigers everywhere. [Fn.10] She thought he meant actual people that were related to her, i.e., members of the Yang clan, as opposed to an animal with claws, because Hmongs usually used “tiger” to refer to someone the person disliked. “Tiger” was a common insult. [Fn.11] It could, however, refer to a supernatural being that was a menacing creature. At some point, defendant told Xay he was a shaman and was capable of seeing “these things.” [Fn.12] Other than using the word “tiger, ” defendant seemed oriented to time and place. Xay believed defendant to be referring to people.
[Fn.10] Xay also reported defendant said, “You guys set these monsters on me.” [Fn.11] Xay explained that animals play a significant role in Hmong culture. Certain animals, like tigers, carry a negative connotation.
[Fn.12] Xay explained the Hmong people's cultural beliefs include a deep-rooted belief in the spiritual world. The Hmong perform rituals on a yearly basis to keep their spiritual being well. They also have shamans who are capable of communicating with the dead, and who do what is necessary to repair the living spiritual being. The spirits choose who will be a shaman, and while there are quite a few shamans in the Hmong population in Stanislaus County, it is common for people to claim to be shamans when they are not. In the Hmong culture, there is no designated place to go to worship, although Xay knew of Laos Temple in Ceres. If a person needs prayer or blessings, he or she goes to a shaman. Likewise, if a person feels he or she has an evil spirit inside, which is relatively common, he or she normally visits a shaman.
Defendant also demanded several times that Xay call his father. Xay truthfully told him the house phone could not make long-distance calls. She had a cell phone in her hand, but hid it from defendant because she did not want him to escape.
Defendant had Xay open the French door all the way so he could see inside. He pointed the handgun directly at her forehead from an inch or two away and told her to come outside. He told her “he had killed the two tigers, he killed them there, ” and he pointed to Nhia's room. He wanted her to take him home, and said if she did not help him, she would see what would happen. He pointed her to the room where the bodies were and forced her to go and look at them.
Xay went to the door of Nhia's room. Defendant kept the gun pointed at her the whole time. She looked inside and saw Nhia on the couch. He appeared to be dead. Defendant said there was a second body, but Xay did not see anyone else, as she could not see the whole room from just outside the door. Defendant asked Xay if she was scared. She told him yes. He seemed very proud of and boastful about what he had done.
Xay walked back toward the French door, while defendant backed up toward the fence. He made Xay swear she would help him. He made her raise her hand and swear upon the next generations and on the name of her recently deceased father, so that if she did not help him, she would be cursed. Defendant said if Xay did not help him, the next thousands of generations of Yangs would be cursed. [Fn.13]
[Fn.13] Xay explained curses are common in the Hmong culture. If someone does something wrong or does not live up to an agreement, the wronged person can put a curse on the wrongdoer. Swearing oaths and cursing are taken very seriously.
Defendant said Xay had to drive him home, because then his family could help him. She said she could not do that without her purse and key, which were in her room. Defendant kept insisting that she take him home. He seemed in a hurry to get out of there, but refused to exit through the front door or the back gate. He then told her to address the tiger that had gotten away. Xay did not see anyone else around.
Xay kept telling defendant that he had to let her get her purse and key, which were in her room, or there was no way she could help him. He finally relented, then told her to open the front door so he could run through the house. Xay obeyed, then defendant told her to come back toward him and stay in the middle of the living room. He still had the gun pointed at her. He then quickly ran through the house and stopped by the passenger side of Xay's vehicle. Xay made it appear she was going toward her room, then ran to the front door and closed and locked it.
During the entire incident, which lasted about five minutes, Xay never saw anyone but defendant. He never described to her seeing something that was not really there.
As of July 20, Daniel Garza lived next door to dwelling B. Early that morning, he heard “a whole bunch” of gunshots coming from dwelling A. Looking out his front window, he saw a man holding some kind of rifle and a reddish blanket exit the front door of dwelling A. The person, whom Garza pointed out to the police when they arrived, went right across the street to dwelling B. He appeared to be walking normally. He stood in the front yard of dwelling B some eight to 10 minutes, until the police arrived. At one point, Garza heard him loudly say, “Open the door.” When the police arrived, Garza heard the person say to them, “Kill me. Kill me, ” or “Shoot me. Shoot me.”
The police received a call about the shooting at 5:25 a.m., from a neighbor who reported hearing four to five shots fired. In addition, Lee called 911. He reported he had been shot in the mouth and the arm, and he was hiding in the backyard of an abandoned house because defendant, whom he named (by nickname) as the shooter, was coming. Lee reported there were two other shooting victims still at the house, but he had run away and was bleeding to death. Lee said defendant had three guns.
Multiple officers from the Modesto Police Department and deputies from the Stanislaus County Sheriff's Department responded to dwelling A. Officer Murphy was the first on scene, arriving at 5:32 a.m. Upon his arrival, he saw defendant, who matched the description of the suspect, standing in front of dwelling B. Defendant “frantically” told Murphy that his cousins had tried to kill him. When Murphy asked where they were, defendant pointed to dwelling A.
Officer Wesley arrived a short time later to find Murphy giving commands to defendant. Defendant, who was standing in the front yard of dwelling B, a few feet from the garage, was wearing nothing but boxer shorts. He was not holding any weapons. He came out to the officers as ordered and was placed in handcuffs. He seemed fairly calm, considering the circumstances.
Defendant was placed in the back of a patrol vehicle. Wesley sought to identify him, and defendant gave his name and date of birth. Defendant's answers were responsive to each question Wesley asked, and he appeared to be oriented to his current location. However, he told Wesley, “Officer, they tried to fucking kill me, ” followed immediately by something about black magic. He appeared nervous and agitated, although he was cooperative. All told, Wesley spent about a minute and a half with defendant. Wesley, who had received training in determining whether someone was under the influence, did not perform such an evaluation on defendant, and observed nothing to suggest defendant was impaired by methamphetamine.
Meanwhile, Officer Kroutil joined the search team that entered dwelling B based on information the suspect had fled to that address and possibly headed into the backyard. In clearing the garage, Kroutil discovered a Colt Sporter rifle, the civilian version of an M16, partially wrapped in a red towel under the minivan. The rifle had a 30-round magazine, meaning the weapon could carry 31 rounds if fully loaded. The weapon was empty. A red substance that appeared to be blood was on the barrel and fore end of the gun. A loaded Ruger revolver, from which two shots had been fired, was found in vegetation next to the door of the garage.
Kroutil then went back across the street to dwelling A. Inside the structure behind the house were a deceased male -- Nhia __ and female __ Gao __ both of whom had what appeared to be bullet holes and gross trauma from being shot at close range. There were shell casings and a live round on the floor. There were a lot of bullet holes in the walls, and some in the ceiling. Multiple baggies of methamphetamine were found throughout the structure. Also found was a glass pipe used for smoking methamphetamine. [Fn.14] A blood trail exited the structure and led to Lee, who was found several blocks away.
[Fn.14] Two days after the shooting, a gun was found between the mattresses of one of the beds in the room. It had after-market grips on it. A search of defendant's home in Winton turned up a photograph of defendant with a weapon in his waistband that appeared identical to the one recovered from the bed. Another photograph seized in the same search showed defendant with his arm around Gao's neck. In his hand was a Ruger revolver that was consistent with the Ruger recovered the morning of the shooting. Defendant appeared to be pointing the gun at the photographer.
Nhia's autopsy revealed he had nine high-velocity-type gunshot wounds to the body, two of which entered from the back. [Fn.15] The range of fire for most of them was intermediate (meaning, assuming the weapon used was a rifle, the tip of the barrel was within two to three feet), although one of them, which was to the head and caused massive destruction of the skull and brain, was within inches. Nhia also had three blunt force injuries to the face that had a circular pattern consistent with a stabbing motion of a barrel of a rifle. There were signs the same type of injury occurred to the eye, which was collapsed but without signs of circular cuts. Two fairly intact projectiles were recovered during the autopsy. One, which was recovered from one of the shots to the back, came from the Ruger found in the vegetation outside the garage of dwelling B.
[Fn.15] An AR-15 or M16, which are similar, would be considered high-velocity weapons.
The cause of death was multiple gunshot wounds. Most of the damage was to Nhia's head and upper abdomen, and most of the wounds were potentially fatal. Although the sequence of wounds could only be generalized, given the distance, it was probable the wounds to the torso were received first, then the one to the head was probably the last shot. Death would have occurred within seconds of that shot.
Gao's autopsy revealed five high-velocity-type gunshot wounds, two of which entered from the back. At least one, which hit the hand and then caused massive destruction to the flesh of the face and exited the throat, was a lethal wound. The cause of death was multiple gunshot wounds. Death could have occurred in minutes to an hour or slightly more.
Blood was drawn during each autopsy. Nhia's blood contained methamphetamine in a concentration of 1, 180 nanograms per milliliter. Gao's blood contained methamphetamine in a concentration of 2, 660 nanograms per milliliter. Dr. Carpenter, who performed the autopsies, explained that postmortem blood levels are “notorious for being inaccurate as to what the level was just prior to death, ” because the levels obtained from toxicology tests vary depending on the location from which the blood was drawn.
Blood was drawn from defendant at 10:27 a.m., approximately five hours after the shooting. [Fn.16] It contained methamphetamine in a concentration of 150 nanograms per milliliter. Daniel Coleman, a criminalist supervisor with the Department of Justice toxicology laboratory who analyzed defendant's blood, explained that if a person takes a drug over a long period of time, his or her tolerance increases and it takes more of the drug to produce the same effect. Coleman had run thousands of blood tests to quantify the presence of methamphetamine. The highest level he had seen in someone still alive was around 2, 000 nanograms per milliliter. The typical range for a person who would be considered under the influence for purposes of a violation of Health and Safety Code section 11550 would be 300 to 700 nanograms per milliliter, although it could be lower or higher for some individuals. A concentration of 10 to 50 nanograms per milliliter would be the therapeutic level, meaning the level at which the drug would be prescribed; 600 to 5, 000 nanograms per milliliter would be the toxic level, meaning there would be negative effects; and a concentration of greater than 10, 000 nanograms per milliliter would be fatal.
[Fn.16] Detective House of the Modesto Police Department was the lead investigator for this case. He transported defendant to the hospital to have blood drawn. Although House did not specifically evaluate defendant for being under the influence of a controlled substance, he believed, based on his training and experience, defendant might be under the influence; hence, the blood draw.
Coleman explained the concentration in defendant's blood would have been as of the time the blood was drawn. Although a number of variables affected how quickly drugs were eliminated from a person's body, the half-life of methamphetamine - the amount of time it took to reduce concentration by half - typically was six to 15 hours. There was, in essence, a “drug curve” entailing absorption, distribution, metabolism, and elimination of the drug, that represented the drug's concentration. Without information concerning where the person was in the process, concentration could not be extrapolated back in time to a point before the blood was drawn. If, however, a person consumed methamphetamine before being taken into custody, he or she was taken into custody no later than 5:33 a.m., his or her blood was drawn at 10:27 a.m., and the person's concentration was 150 nanograms per milliliter, Coleman would expect that person's concentration to be higher at 5:33 a.m. than at 10:27 a.m. How much higher would depend on a number of variables. In Coleman's opinion, it would likely be less than 300 nanograms per milliliter at 5:30 a.m. Although the person's concentration could have been 2, 000 nanograms per milliliter or even higher at some point, it would have been earlier than 5:30 a.m. The higher the peak concentration, the longer it would take to get down.
Carpenter placed Gao's and Nhia's methamphetamine concentrations in the toxic range, which potentially could start as low as 200 nanograms per milliliter. When people have methamphetamine levels in the toxic range, they can have “disturbing” side effects. These can include insomnia, excessive nervousness, loss of appetite, inability to control anger, and anything associated with hyperstimulation. The stimulation is called “fight or flight”; the body becomes very vigilant, and in fact more vigilant than desired. At extremely high levels, hallucination can be a side effect of methamphetamine ingestion. Methamphetamine is not normally a hallucinogenic, however. [Fn.17] Where methamphetamine is concerned, tolerance plays a role. If a person is a heavy methamphetamine user, his or her tolerance will be higher so it takes more of the substance to cause the same effect. Someone taking methamphetamine for the first time would be affected by side effects at a lower level than a continuous user of the drug. Methamphetamine in a concentration of under 200 nanograms per milliliter would be considered in the therapeutic range and was probably not a level likely to cause unwanted side effects. For a hallucinogenic side effect, the level would likely have to be high in the toxic range, although this would depend on the individual. Carpenter explained an individual's behavior cannot be predicted simply from his or her blood level because his or her tolerance is not known. He would not expect someone who used methamphetamine daily and whose level was 150 nanograms per milliliter to have side effects.
[Fn.17] Carpenter explained that “hallucinogenic” means the person develops loss of orientation to person, place, time, and situation; and may suffer delusions and visual and/or auditory hallucinations. It is a drug-induced psychosis that can occur on rare occasions in certain individuals with high levels.
House interviewed defendant beginning shortly after 1:00 that afternoon. [Fn.18] Defendant was mostly calm, although he became angry on occasion. He was responsive for the most part, although sometimes he was evasive. House found him calculating and able to reason. He appeared to be oriented to time, place, and situation. Early in the interview, he expressed knowledge Gao had been shot. Over the course of the interview, defendant claimed he was angry about it, but did not appear to be emotionally upset, even though he said Gao was “the love of his life” and Nhia was his best friend. [Fn.19] He also said he considered Lee to be a brother.
[Fn.18] Portions of the video recording of the interview were played for the jury.
[Fn.19] House knew Xyeem had told another detective that on the night before the homicides, Xyeem overheard defendant asking Gao ...

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