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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
TY MICHAEL HILL,Petitioner
THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, COUNTYOF SAN LUIS OBISPO,
Respondent
THE PEOPLE OF THE
STATE OF CALIFORNIA,Real Party in Interest
CRIMNO.
San Luis Obispo CountyS.C. No. F 452204
The Hon. Barry LaBarberaJudge of the SuperiorCourt
Trial: August 6, 2012
PETITION FOR REVIEW
IN A CAPITAL CASE
WILLIAM ROY McLENNAN
ROBERT THOMAS ALLEN
State Bar Nos. 75325/044774
1022 Mill Street
San Luis Obispo, CA 93401(805) 544-7950Attorneys for PetitionerTy Michael Hill
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
LIST OF EXHIBITS iv
PETITION FOR REVIEW 1
VERIFICATION 12
MEMORANDUM OF AUTHORITY 13
I Introduction 13
II Summary of Relevant Preliminary HearingTestimony and Greenwell Interview Statements 15
III Petitioner was Denied Substantial RightsAnd An Evidentiary Hearing Is Required 22
IV Conclusion 27
Proof of Service 28
WORD COUNT: 7725
TABLE OF AUTHORITIES
United States Supreme CourtBrady v. Maryland (1963) 373 U.S. 83[10 L. Ed. 2d 215, 83 S. Ct. 1194] 5,24,25
Gregg v. Georgia (1976) 428 U.S. 153[49 L.Ed.2d 913, 96 S.Ct. 2909] 27Maine v. Molton (1985) 474 U.S. 159[106 S.Ct. 477; 88 L.Ed.2d 48 2,15,26United States v. Morrison (1981) 449 U.S. 361[101 S.Ct. 665; 66 L.Ed.2d 564] 2,15,26Woodson v. North Carolina (1976) 428 U.S. 280[49 L.Ed.2d 944, 26 S.Ct. 2978] 27
California Supreme CourtBarber v. Municipal Court (1979) 24 Cal.3d 742 2,15,26Galindo v. Superior Court (2010) 50 Cal.4th 1 26In re Sassounian (1995) 9 CaUth 535 24Izazaga v. Superior Court(1991) 54 Cal.3d 356 25People v. Co/e(2004)33 Cal.4th 1158 14People v. Coleman (1988) 46 Cal.3d 749 15,22People v. Davenport(19Z5) 4\ Cal. 3d 247 14People v. Hillhouse (2002) 27 Cal.4th 729 14People v. Pompa-Ortiz (1980) 27 Cal.3d 519 22People v. Zambrano (2007) 41 CaUth 1082 24
California Court of AppealsBoulas v. Superior Court (1986) 188 Cal.App.3d422 2, 15,26Merrill v. Superior Court (1994) 27 Cal.App. 4th1586 2,3,22,23,24,25People v. Duncan (2000) 78 Cal.App.4th 765 2,3People v. Mackey (1985) 176 Cal.App.3d 177 22People v. McGlothen (1987) 190 Cal.App.3d 1005 16Stanton v. Superior Court (X994) 193 Cal.App.3d 265 2, 3,14,23
California Penal Code Sections
Penal Code § 187(A) 4,6Penal Code § 187(A)(1) 6Penal Code § 189 4,6
Penal Code § 189/664(A) 7Penal Code § 207 4Penal Code § 190.2(a)(17) 4Penal Code §190.2(a)(17)(B) 6.14Penal Code § 190.2(a)(17)(M) 7Penal Code § 190.2(a)(18) 4,6,14Penal Code § 190.2(c) 4,6Penal Code § 190.2(d) 6Penal Code § 866(a) 24.Penal Code § 995 7Penal Code § 1054(b) 7Penal Code § 1054(e) 7Penal Code § 1054.5 15Penal Code § 1192.7(c)(8) 4Penal Code § 1192.7(c)(23) 4
Constitutions
Sixth Amendment to the United States Constitution 2, 3,11
LIST OF EXHIBITS
EXHIBIT A Order of the Court of Appeal ofthe State ofCalifornia,Second Appellate District, Division Six, datedFebruary 14, 2012, denying petition for writ ofprohibition in B 238833
IV
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
TY MICHAEL HILL,Petitioner
THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, COUNTYOF SAN LUIS OBISPO,
Respondent
THE PEOPLE OF THE
STATE OF CALIFORNIA,Real Party in Interest
CRIM NO.
San Luis Obispo CountyS.C. No. F 452204
The Hon. Barry LaBarberaJudge of the SuperiorCourt
Trial Date: 8/6/12
PETITION FOR REVIEW
IN A CAPITAL CASE
TO: THE HONORABLE CHIEF JUSTICE TANI GORRE CANTIL-
SAKAUYE AND THE HONORABLE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF THE STATE OF CALIFORNIA:
Petitioner TY MICHAEL HILL petitions this court for review
following the decision of the Court ofAppeal, Second Appellate District,
Division Six filed on February 14,2012, denying petitioner's Petition for
Writ of Mandate/Prohibition (B238833). A copy of the order of the Court
ofAppeal is attached as Exhibit A.
Petitioner TY MICHAEL HILL petitions this Court to issue a writ of
mandate/prohibition in this capital case, directing respondent court to find
that the non-disclosure of the exonerating statements of co-defendant Jason
Greenwell concerning the time and manner of the victim's death denied
petitioner substantial rights at his preliminary hearing and grant petitioner
an evidentiary hearing to present cross examination, affirmative defense and
rebuttal evidence to establish additional "materiality" before respondent
court rules on petitioner's motion to dismiss the special circumstances.
(Stanton v. Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior
Court (1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78
Cal.App.4th 765.)
Petitioner further petitions this Court for an evidentiary hearing to
establish facts outside the record that support his contention that the
conduct of the prosecution, including the non-disclosure of the exculpatory
statements of co-defendant Jason Greenwell and the misleading and evasive
testimony concerning this interview and other time of death evidence from
prosecution witnesses, denied him the Sixth Amendment right to competent
counsel at the preliminary hearing. (Boulas v. Superior Court (1986) 188
Cal.App.3d 422,430; Maine v. Motion (1985) 474 U.S. 159 [106 S.Ct. 477,
88 L.Ed.2d 48]; UnitedStates v. Morrison (1981) 449 U.S. 361 [101 S.Ct.
665,66L.Ed.2d564].)
ISSUES PRESENTED
1. Did the non-disclosure of the exculpatory statements of co-
defendant Jason Greenwell violate petitioner's substantial rights to a fair
preliminary hearing, competent representation, effective cross-examination,
negate elements of the special circumstances and present an affirmative
defense to the special circumstances of kidnaping and torture? (Stanton v.
Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior Court
(1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78 Cal.App.4th 765.)
2. Before respondent court ruled on his motion to dismiss the special
circumstance allegations, was petitioner entitled to an evidentiary hearing to
present affirmative defense and rebuttal evidence that would have been
offered at the preliminary hearing to establish "materiality" and demonstrate
there was insufficient probable cause to support the holding order for the
special circumstance allegations of kidnaping and torture? (Stanton v.
Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior Court
(1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78 Cal.App.4th 765.)
3. Before respondent court ruled on his motion, was petitioner
entitled to an evidentiary hearing to present evidence outside the record to
support his contention that the material, non-disclosed statement of co-
defendant Jason Greenwell concerning time of death combined with the
misleading and evasive testimonyof prosecutionwitnesses interfered with
and denied him the Sixth Amendment right to competent counsel?
PARTIES
4. Petitioner is Ty Michael Hill, the only capital defendant in the
case ofPeople v. Ty Michael Hill, Cody Lane Miller, Frank Jacob York,
Jason Adam Greenwell, and Rhonda Maye Wisto. (San Luis Obispo County
Superior Court # F 452204.)
5. Respondent is the Superior Court of the State of California,
County of San Luis Obispo. (Hereinafter respondent court.)
6. Real Party in Interest is the People of the State of California
represented by San Luis Obispo County Chief Deputy District Attorney
Timothy Covello. (Hereinafter real party.)
STATEMENT OF THE CASE
7. In the early morning hours on September 26,2010, the burned
body of Dystiny Myers was discovered in a shallow hole in a rural area
outside of Santa Margarita, California, by California firefighters.
Defendant Cody Miller was found injured at the scene and he immediately
admitted his involvement in the crime and implicated the co-defendants,
including petitioner. On the same day, Ty Michael Hill, Rhonda Maye
Wisto, Frank Jacob York, Cody Lane Miller and Jason Adam Greenwell
were arrested and interrogated for the murder of Dystiny Myers.
8. Co-defendant Jason Greenwell was interviewed by San Luis
Obispo County Sheriff Detectives Patrick Zuchelli and Robert Burgeson on
September 26th and 28th 2010. Therecordings of these interviews were
provided to the defendant prior to the preliminary hearing. (Sealed Exhibit
B, declaration ofKaren Chilina, originally filed with petitioner's motion as
Exhibit A.) Prior to the preliminary hearing, the statements of the
defendants indicated the victim was moving when she was transported to
the burial site and there was no information that indicated the victim died in
the bedroom and was moved only afer her death.
9. On September 29, 2010, a one count complaint was filed against
the same individuals who were arrested, charging them with murder, in
violation of Penal Code § 187(A). On October 13, 2010, a one count
amended complaint was filed against all defendants charging them with
willful, deliberate and premeditated murder, in violation of Penal Code §
187(A) and Penal Code § 189. The amended complaint included
enhancements for murder during the commission or attempted commission
of a kidnaping, within the meaning of Penal Code §§ 207 and 190.2(a)(17)
(enhancement 1), aiding and abetting murder and the commission of a
special circumstance with intent to kill, withinthe meaningof Penal Code §
190.2(c) (enhancement 2), and torture murder within the meaning ofPenal
Code § 190.2(a)(18) (enhancement 3).
10. On January 27, 2011, eleven days before the preliminary
hearing, co-defendant Jason Greenwell was secretly interviewed at the San
Luis Obispo County District Attorney's Office by San Luis Obispo District
Attorney Investigator Isabel Funaro and San Luis Obispo County Sheriff
Detective Patrick Zuchelli in the presence ofHarold Mesick, attorney for
defendant Jason Greenwell. During this third known interview attended by
Detective Zuchelli, Jason Greenwell contradicted his prior statements and
those of the defendants and provided new exculpatory material evidence
pertinent to time of death and the special circumstances. Specifically, he
agreed that the victim was dead in the bedroom prior to being transported to
the burial site, that in the bedroom Cody Miller ran out of duct tape that was
placed over the strangulation ligature and the victim may not have been
moaning or moving when transported to the burial site. (Sealed Exhibit B,
transcript of January 27, 2011, interview of Jason Greenwell, part 2,
attached to the sealed declaration of Karen Chilina as Exhibit A.) The
recording of this interview was not provided to the defendant prior to the
preliminary hearing.
11. At the preliminary hearing conducted on February 7th and 8th,
2011, San Luis Obispo County Sheriffs Detective Stuart McDonald
testified that Dr. Gary Walter, the pathologist who performed the autopsy,
told him that Dystiny Myers was asphyxiated within approximately four
minutes by sweat pants that were tightly bound around her neck and cloth
fabric glove stuffed into her mouth. (Preliminary hearing transcript
(hereinafter PHT) 83, 89, 92-93, 101.) Deputy McDonald was not qualified
to render any medical opinions and was evasive when asked specific
question about the time of death and the independent role of the tight
ligature around the victim's neck. (PHT 87, 92-93,101.)
12. Detective Patrick Zuchelli testified at the preliminary hearing but
failed to relay the new exculpatory statements of Jason Greenwell from
eleven days before and stated, when questioned by Chief Deputy District
Attorney Timothy Covello and Attorney Harold Mesick, that he had
interviewed Jason Greenwell only two, but not three times. Detective
Zuchelli relayed statements attributed to Jason Greenwell that were
contradicted by statements made at his secret January interview and failed
to mention other statements that were material to time of death. At the
conclusion of the preliminary hearing, the magistrate made no specific
findings of fact, conclusions of law or comments on the evidence but
simply stated the defendants were all held to answer on Count 1 of the
amended complaint and enhancements 1,2, and 3. (PHT 222.) No
arguments were made or authority presented by the prosecutoror counsel
for any of the defendants.
13. On February 23, 2011, an information was filed against all
defendants. Count 1 of the information charged all defendants with murder,
in violation of Penal Code § 187(A) and Penal Code § 189. Count 1
included enhancements for aiding and abetting the commission of first
degree murder and the true finding of a special circumstance within the
meaning ofPenal Code § 190.2(c) (enhancement 1), murder during the
commission of a kidnaping, within the meaning ofPenal Code §
190.2(a)(17)(B) (enhancement 2), aiding and abetting the commission of
first degree murder and aiding and abetting with reckless indifference or as
a major participant in the commission of kidnaping resulting in death,
within the meaning of Penal Code § 190.2 (d) (enhancement 3), and torture
murder within the meaning of Penal Code § 190.2(a)(18) (enhancement 4).
Count 2 of the information alleged conspiracy to commit murder in
violation of Penal Code § 182(A)(1) and Penal Code §189 and further
alleged 19 overt acts conducted in the course of the conspiracy. Count 3 of
the complaint charged the attempted premeditated murder of defendant
Cody Lane Miller by petitioner and defendants Rhonda Maye Wisto and
Frank Jacob York, in violation of Penal Code §§189 and 664(A).
Petitioner and defendant Frank Jacob York were additionally charged with
the personal use of a deadly weapon, within the meaning ofPenal Code
section 1192.7(c)(23) (enhancements 5 and 6), and with the infliction of
great bodily injury, within the meaning of Penal Code § 1192.7(c)(8)
(enhancements 7 and 8).
14 On March 23, 2011, William Roy McLennan was appointed as
capital counsel for petitioner and real party announced that petitioner alone
would be prosecuted as a capital defendant.
15. Petitioner's Motion to Dismiss the Information Pursuant to
Penal Code § 995, contending there was insufficient evidence to sustain the
special circumstances of kidnaping and torture, was heard and denied on
July 25, 2011, by the Honorable Michael Duffy of respondent court. A writ
of prohibition was filed with the California Court ofAppeal, Second
Appellate District, Division 6 (#B 234873) on August 8, 2011, and denied
on September 15, 2011. A petition for review was filed with the California
Supreme Court (#S 196612) on September 21, 2011, and denied on October
20,2011.
16. Petitioner's Motion to Declare Penal Code § 190.2 (a)(17)(M)
Unconstitutional was filed on September 20, 2011, and was heard and
denied by the trial courton October 20, 2011. A writ of prohibition was
filed with the California Courtof Appeal, Second Appellate District,
Division 6 (#B 236891) on October 27, 2011, and denied on October 31,
2011. A petition for review was filed with the California Supreme Court
(#S197692) on November 3, 2011, and denied on November 22, 2011.
17. Following the preliminaryhearing, the defendant requested all
statementsof Jason Greenwell but was rebuffed by the prosecution. A
motion to compel the disclosure of those statements was heard and denied
by respondent court on November 10, 2011.
18. On December 9, 2011, the petitioner was given a recording of
the interview of Jason Greenwell conducted on January 27, 2011, by
District Attorney Investigator Isabel Funaro and San Luis Obispo County
Sheriff Detective Patrick Zuchelli in the presence of Harold Mesick,
attorney for defendant Jason Greenwell. It is evident from the content of
the interview that Jason Greenwell was previously interviewed by District
Attorney Investigator Isabel Funaro but the time, location and content of
these interviews are presently unknown, despite a new request for this
specific discovery made on December 15, 2011.
19. On January 9, 2012, petitioner filed his Notice of Motion and
Motion to Dismiss the Special Circumstances for Denial of Substantial
Rights and Failure to Disclose Exculpatory Evidence; Motion to Compel
Discovery and for an Evidentiary Hearing. (Exhibit A.) The transcript of
the January 27,2011, interview of Jason Greenwell (part 2), was attached as
Exhibit A and a CD copy of the quoted sections was attached as Exhibit B
to the declaration Karen Chilina. The declaration and transcript were
ordered sealed by respondent court. The sealed declaration and exhibits are
filed with this writ as Exhibit B. On January 19, 2012, the prosecution filed
People's Opposition to Ty Michael Hill's Motion to Dismiss the Special
Circumstances for Denial of Substantial Rights and Failure to Disclose
ExculpatoryEvidence. (Exhibit C.) On January 24,2012, petitioner filed
his Reply to Opposition to Motion to Dismiss Special Circumstances for
Denial of Substantial Rights and Failure to Disclose Exculpatory Evidence.
(Exhibit D.) On January 25, 2012, the prosecution filed People's Sur-Reply
to Defendant's Reply to Opposition to Motion to Dismiss the Special
Circumstances. (Exhibit E.)
20. On January 26, 2012, petitioner's motion was heard and denied
by the Honorable Barry LaBarbera in Department 2 of respondent court.
The transcript of the motion hearing (hereinafter RT) is lodged as Exhibit F
and the minute order is lodged as Exhibit G. The autopsy photograph
depicting the strangulation ligature under the duct tape was received in
evidence, ordered sealed and is lodged as sealed Exhibit H. At the hearing,
respondent court listened to an offer of proof from petitioner (Exhibit F, RT
438-443), denied petitioner's motion for an evidentiary hearing and stated, "
... the statement by Mr. Greenwell is not such that it would belie the
statements that were attributed to him by the detectives. It's arguable, I
suppose, that that compound question which ended up with a "but yeah."
The word "but yeah" might have referred to the alleged victim having
passed by that in the room. Could have meant a lot of things ..." (Exhibit
F, RT 448-449.) Respondent court further stated, "So you could certainly
interpret the way the defendant wants it to be interpreted. I don't think
that's an inference that I would draw." (Exhibit F, RT 449, 15-17.)
The court note the standard at a preliminary hearing is "very low"
and stated, "Mr. McLennan indicating he had - - did not have sufficient
evidence to competently cross-examine, those issue that he raised and his
request for an evidentiary hearing, thosematters are things that he can
explore. They're obviously trial issues." (Exhibit F, RT 450, 13-17.)
Finally, respondent court noted, " I have to reject the idea that the D.A. has
some sort of burden to present discovery of ongoing investigation which I
imagine this was with regard to Mr. Greenwell. They disclosed it when
they completed it." (Exhibit F, RT 450. 23-36.)
21. On February 2, 2012, petitioner filed a petition for writ of
mandate/prohibition in the Court ofAppeal, Second District, Division Six
(B238833) that was denied on February 14, 2012. (Exhibit A.)
22. Trial is presently set for August 6, 2012.
GROUNDS FOR RELIEF
23. Respondent court failed to recognize that the non-disclosure of
Jason Greenwell's exonerating statements denied him substantial
preliminary hearing rights and that an evidentiary hearing was required to
allow the presentation of additional material evidence to prove there was no
basis for the holding order for the special circumstance allegations of
kidnaping and torture.
24. The issues presented in this petition have not been raised in any
other petition.
25. Petitioner has no plain, speedy and adequate remedy at law other
than the relief sought in this petition. If relief is not granted, petitioner will
be deprived of the right to demonstrate the prosecution violated his right to
competent counsel and to a fair preliminary hearing and an opportunity to
present evidence that demonstrates there is no factual basis for the holding
order for the special circumstances of kidnaping and torture.
PRAYER FOR RELIEF
WHEREFORE, Petitioner Ty Michael Hill respectfully prays that:
10
1. This court find the non-disclosure of the exculpatory statements
by Jason Greenwell denied petitioner the substantial rights to competent
counsel, effective cross examination, negate elements of the special
circumstance allegations and present an affirmative defense to the special
circumstances ofkidnaping and torture.
2. This court find that respondent court acted unlawfully when it
considered only the materiality of the non-disclosed statements of co-
defendant Jason Greenwell and denied petitioner an evidentiary hearing to
present additional material evidence outside the record that would have
been presented at the preliminary hearing as rebuttal and affirmative
defense evidence before it ruled on petitioner's motion.
3. This court find that respondent court acted unlawfully when it
denied petitioner an evidentiary hearing to present evidence outside the
record to establish that the failure to disclose the exculpatory statement of
Jason Greenwell combined with the misleading testimony at the preliminary
hearing violated petitioner's SixthAmendment right to competentcounsel
at the preliminary hearing.
4. An alternative writ of mandate/prohibition be issued requiring
respondent court to show cause before this Court, why it should not be
restrained from denying petitioner an evidentiary hea^in^
Dated: February 15, 2012
William Roy McLennanRobert Thomas Allen
Attorneys for PetitionerTy Michael Hill
ii
VERIFICATION
I, William Roy McLennan, am the court appointed counsel for
indigent petitioner Ty Michael Hill in the above-entitled case. I have read
the foregoing petition and know its contents. The contents are true to my
knowledge except as to those matters that are alleged on information and
belief. I believe those matters alleged on information and belief to be true.
Petitioner consents to this petition being filed on his behalf.
I declare under penalty of perjurythat the foregoing is true and
correct. Executed on February 15, 2012, at San Luis Obispo, California.
William Roy McLennanAttorney for PetitionerTy Michael Hill
12
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION
The time Dystiny Myers died would have been the central
battleground at the preliminary hearing and a compelling affirmative
defense to the special circumstances would have been mounted if the
undisclosed interview with Jason Greenwell conducted by District Attorney
Investigator Isabel Funaro and San Luis Obispo Sheriff Detective Patrick
Zuchelli eleven days before the preliminary hearing had been properly
provided to the defendant. At the interview, Jason Greenwell contradicted
his former statements, later relayed to the magistrate by Detective Zuchelli,
and said the victim was dead in the bedroom at 311 Mars Court, that he
alone carried the victim's body from the house to the truck, that he heard no
moaning at the Chevron station, that he did not know if the movement in
the back of the truck at the Chevron station was the victim, and that Cody
Miller ran out of duct tape while binding the victim in the bedroom, a
significant fact when considering autopsy photographs that clearly depict
the duct tape wrapped over the neck ligature. (See Exhibit B, sealed
transcript of January 27, 2011, interview ofJason Greenwell, part 2,
attached to the sealed declaration of Karen Chilina as Exhibit A.)
These facts, when combined with the undisputed cause of death by
mechanical asphyxiation, specifically a tightly knotted sweat pant ligature
around her neck and a cloth glove in the victim's mouth, and other
seemingly scattered and inconsistent evidence, such as Jacob York telling
his interrogators that Cody Miller stuffed a glove in the victim's mouth in
the bedroom (PHT 244.), Jason Greenwell's earlier statement that the
victim was "strangled" in the bedroom, and autopsy photographs clearly
13
depicting the sweat pant ligature under the duct tape, raise serious
questions about the true time of death.
The statements of Jason Greenwell would have provided facts to
support an offer of proof pursuant to Penal Code § 866(a) and triggered
competent cross examination and a comprehensive affirmative defense that
would have conclusively established that Dystiny Myers was never
kidnaped or tortured but suffocated and killed with a ligature and fabric
glove in a bedroom at 311 Mars Court in Nipomo, California. The special
circumstances of kidnaping (Penal Code § 190.2 (a)(17)(B)) and torture
(Penal Code § 190.2 (a)(18)) could never have been sustained by the
magistrate because it is legally impossible to kidnap a dead body and a
rapid death from ligature strangulation cannot support a finding of torture.
(People v. Hillhouse (2002) 27 Cal.4th 729,498 [ kidnaping requires a live
victim]; People v. Davenport (1985) 41 Cal. 3d 247, 271; People v. Cole
(2004) 33 Cal.4th 1158, 1228. [torture requires intent to inflict pain beyond
the pain of death.)
As was the case in Stanton v. Superior Court (1994) 193 Cal.App.3d
265, 269, it is impossible to judge the nature and extent of the denial of the
defendant's rights to conduct effective cross examination, present an
affirmative defense, rebut elements of the special circumstances and to be
represented by competent counsel without conducting an evidentiary
hearing. Stanton clearly guarantees that right and it is essential in this case
to call and examine Dr. Gary Walter, Detective Patrick Zuchelli, District
Attorney Investigator Isabel Funaro, Jason Greenwell and Harold Mesick
before the court rules on the motion to strike the special circumstances.
In addition to the denial of substantial rights at the preliminary
hearing, the defendant's Sixth and Fourteenth Amendment, and California
14
statutory discovery rights were violated when the material exculpatory
statements of Jason Greenwell were not disclosed prior to the preliminary
hearing. The testimony at the preliminary hearing misled the magistrate
concerning the number of times Jason Greenwell was interviewed, the
credibility of Jason Greenwell and the location of the victim's death. The
manipulation of the defendant's attorney by withholding crucial evidence
denied the defendant his Sixth Amendment right to competent
representation and his Fourteenth Amendment right to due process. (Penal
Code 1054(e), 1054.1(b)(and (e); People v. Coleman (1988) 46 Cal.3d 749
[competent counsel is a substantial right; right to evidentiary hearing];
Penal Code § 1054 (e) [right to constitutionally compelled discovery]; Penal
Code § 1054.5 [broad discretion to fashion remedy]; Brady v. Maryland
(1963) 373 U.S. 83, 87 [10 L. Ed. 2d 215, 83 S. Ct. 1194] [right to material
exculpatory evidence without demand]; Boulas v. Superior Court (1986)
188 Cal.App.3d 422,430 [court may fashion remedy to correct wrong for
6th Amendment violation]; Barber v. Municipal Court (1979) 24 Cal.3d742
[same]; Maine v. Molton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d
48] [same]; United States v. Morrison (1981) 449 U.S. 361 [101 S.Ct. 665;
66L.Ed.2d564][same].)
II
SUMMARY OF RELEVANT PRELIMINARY HEARING
TESTIMONY AND GREENWELL INTERVIEW STATEMENTS
There would be no factual or legal basis to support the kidnaping
special circumstance if the pathologist supported the undisclosed testimony
ofJason Greenwell and testified that Dystiny Myers was asphyxiated within
approximately four minutes by the ligature around her neck. There would
have been no factual or legal basis to support the torture special
15
circumstance if Dystiny Myers was killed quickly by strangulation. (See
People v. McGlothen (1987) 190Cal.App.3d 1005 [magistrates finding not
controlling if focuses on one discrepancy and ignores more powerful
evidence].) While the non-disclosed testimony of co-defendant Jason
Greenwell alone would not be sufficiently material for a new preliminary
hearing, an evidentiary hearing would have provided sufficient facts outside
the record to prove that petitioner was denied substantial rights and entitled
to a new preliminary hearing.
Detective Zuchelli did not testify at the preliminary hearing on
February 7th and 8th, 2011, thatJason Greenwell believed the victim was
strangled and dead in the bedroom but rathertestified that she was "moving
or moaning" in the truck at 311 Mars Court. (PHT 192, L 22-28.) As
specifically stated by Detective Zuchelli:
Q. Now, I'm going to back up. I don't think I asked you.Did Mr. Greenwell tell you if Dystiny Myers was alive whenshe was put in the back of the pickup truck at 311 MarsCourt?
A. Yes, he did.Q. What did he tell you?A. I believe he said that she was possibly moving or moaning.
(PHT 192.)At the undisclosed interview on January 27, 2011, Jason Greenwell
contradicted his prior statements and the eventual preliminary hearing
testimony of Detective Zuchelli and stated the victim was dead in the
bedroom at 311 Mars Court before she was placed into the truck. As stated
by Jason Greenwell during the secret interview on January 27, 2011:
Q. So before he picks her up and puts her intothe bag, what makes these guys stop doing whatthey're doing? Does he tell them to stop or howdoes that.. .How does Ty just stop?A. He just... he just picked ... he just
16
grabbed her, you know? I don't reallyremember any words that were ...Q. He didn't say "get out of the way, let megrab her," he just grabbed her?A. Yeah, as far as I remember. By that pointI'm already ... shit pretty I guess shocked, Iguess.
[0:38:54.5] Q. Do you think she was dead at that point?Was she still moving around? Could you tell ifshe was breathing? Her eyes open?A. No, you couldn't really see her eyes, but...Q. How come?A. There was tape over them.Q. OkayA. ...but yeah. [0:39:05; transcript page 18-19]
(Exhibit B, sealed declaration ofKaren Chilina, Exhibit A,transcript of January 27, 2011, interview ofJason Greenwell, part 2,pagel8-19 and Exhibit B, edited CD containing this quotation.)
Detective Zuchelli testified at the preliminary hearing that Jason
Greenwell told him the victim was alive and moving at the Chevron station.
As stated by Detective Zuchelli at the preliminary hearing:
Q. Did he tell you if Dystiny Myers was alive when they gotto the Chevron or Shell Station at Pismo?
A. Yes, he did.Q. What did he tell you?A. He told me that he could feel movement in the back of the
truck and he felt it was her moving. (PHT 193.)
Q. (By Attorney Carrasco) Mr. Greenwell did (he) tell youthat the victim was making noise prior to him opening thewindow to communicate with Mr. Miller; correct?A. I seem to remember it was mainly movement. (PHT 197-198.)Q. And what was it that Mr. Greenwell told you was takingplace in the back of the truck?A. He - - He told - in the initial interview he told me that the
17
victim was making noises and he opened the window to letMr. Miller know that the police were there.Q. Okay. Did you follow up with any further questions as towhat he meant by "noise," whether it would be cries for helpor a groan or anything of that nature?A. I don't recall. (PHT 199-200.)
However, during the secret interview on January 27, 2011, Jason
Greenwell told Detective Zuchelli there was no noise from the back of the
truck and he did not know if the movement he felt was Cody Miller or the
victim. As stated to Detective Zuchelli at the interview by Jason Greenwell:
Q. Okay, so Jacob got out and pumped the gas? Okay, andthen what happened?A. Jacob pumped the gas and then he went in and that's whenI saw ... as soon as they went in, I saw two cops pull into theparking lot.Q. Okay.A. By that time ... at that time I noticed the truck wasmoving basically, like, like, um, so I looked in the back and Ididn't know if it was ... I thought it was her, Dystinymoving, but I don't know if it was Cody or ... it was one ofthem anyway. And I told him ...Q. What was he doing in the back there?A. He was moving around. I can't... I couldn't really seebut...
Q. Was he lying next to her?A. Yeah.
Q. On top ofher, or?A. Pretty much on top of her but...Q. What do you mean on top of her?A. Like right next to her, but I don't know, but like I said, itwas kind ofhard to to really see cuz there was like a bigbarrel in the way and I don't know. I never really looked backthere for too long, just kind of glanced...Q. Okay. So then when you ... did you open the windowand say anything to him?A. Yeah, I told him to ... to shut the fuck up basically, stopmoving around.
18
Q. Did you tell him why?A Huh?
Q. Did you tell him why?A. Yeah, I told him, "the cops are here."Q. Did he say anything back to you?A. No.
Q. Okay, did you hear anything besides the moving...you saw him moving, but did you hear anything? Anysound from the back?
A. No, not a thing. (Transcript, [52:37-52:59].)(Exhibit B, sealed declaration of Karen Chilina, Exhibit A,
transcript of January 27, 2011, interview of Jason Greenwell, part 2, page25-26, and Exhibit B, edited CD containing this quotation.)
Finally, Jason Greenwell stated during his secret interview on
January 27, 2011, that during the attack on Dystiny Myers, Cody Miller ran
out of duct tape in the bedroom and only then began using a rope to tie the
victim. (Exhibit B, sealed declaration of Karen Chilina, Exhibit A,
transcript of January 27, 2011, interview of Jason Greenwell, part 2, page
11.) A photograph from the autopsy demonstrate that the tightly knotted
sweat pants around the victim's neck are under the duct tape and proves the
strangulation occurred before the victim was wrapped in duct tape and
impeaches the statements of the other defendants that she was alive on the
trip to Santa Margarita. (See Exhibit H, sealed autopsy photograph # 126 .)
The pathologist who performed the autopsy, Dr. Gary Walter, did not
testify at the preliminary hearing. San Luis Obispo County Sheriff Stuart
McDonald testified on his behalf but was not qualified to render any
opinions and was evasive concerning the time of death and the ligature
around the victim's neck. (PHT 87, 92-93,101.)
Deputy McDonald testified that Dr. Walter stated that Dystiny
Myers was asphyxiated within approximately four minutes by sweat pants
19
that were tightly bound around her neck and cloth fabric glove stuffed into
her mouth. (PHT 83, 89, 92-93, 101.)
When questioned specifically about the time of death and the tightly
knotted sweat pant ligature, Deputy McDonald became evasive and stated:
Q. Did the pathologist give you any statements as to whetheror not that sweatshirt was the cause of asphyxiation?A. He talked about that being one of the elements that heconsidered; however, we didn't discuss it - - in great detail.(PHT 101, L 20-23.)
When specifically asked by Harold Mesick, the attorney for Jason
Greenwell, if he "or the doctor were able to determine the time of death,"
Deputy McDonald only responded, "Not precisely." (PHT 87, L 14-16.)
When asked again for an approximate time of death by Raymond Allen, the
attorney for Ty Michael Hill, Deputy McDonald again evaded the question
and stated, "I don't recall that information off the top of my head."
(PHT 87.) However, Deputy McDonald did stated that from the time there
was restriction in the airway to the time of death, would have been
approximately four minutes. (PHT 92-93.)
The testimony of Deputy McDonald demonstrates the essential need
for an evidentiary hearing. If Dr. Walter testifies that the scientific
evidence from the autopsy proved that Jason Greenwell was correct and
Dystiny Myers was strangled to death by the sweat pants in the bedroom,
the methamphetamine-hazed opinions of the other defendants that she was
alive in the truck would have had no weight at the preliminary hearing.
There would be no reliable evidence or probable cause to support the
special circumstances.
San Luis Obispo County Sheriff Detective Patrick Zuchelli was
present during at least three interviews of the defendant and apparently
20
knew his interview of Jason Greenwell conducted on January 27, 2011, had
not been disclosed to the defendant. However, at the preliminary hearing he
admitted being present during only the two interviews of Jason Greenwell
that were conducted shortly after he was taken into custody for the murder
of Dystiny Myers. The January 27, 2011, interview with Jason Greenwell
was never mentioned at the preliminary hearing. As Detective Zuchelli
stated at the preliminary hearing when questioned by the prosecutor:
Q. And did you participate in the investigation into themurder of Dystiny Myers?A. Yes, I did.A. And in doing so, did you have occasion to speak with oneof the defendants in this case, Jason Greenwell?A. Yes, I did.Q. And how many times did you speak with Mr. Greenwell?A. I spokewith him on two consecutive days, the 26th andthe 27th. (PHT 183, L 19-27.)
Detective Zuchelli was specifically asked by attorney Harold
Mesick, who was present with his client when he was interviewed for the
third time by Detective Zuchelli on January 27, 2011, if he had interviewed
his client three times. Detective Zuchelli responded as follows:
Q. And you interviewed him three times?A. Two times.
Q. Two times. I'm sorry. On your second interview, did heappear remorseful?A. Yes. (PHT 197.)
It is unknown why Detective Zuchelli refused to admit that he was
present and questioned Jason Greenwell at three interviews. There must be
an evidentiary hearing to discovery whether or not the magistrate was
intentionally misled or if this conduct amounts to prosecutorial misconduct.
21
Ill
PETITIONER WAS DENIED SUBSTANTIAL RIGHTS
AND AN EVIDENTIARY HEARING IS REQUIRED
The newly disclosed statements of Jason Greenwell provided the
first opinion from a defendant that Dystiny Myers was killed in the bedroom
of the house at 311 Mars Court. The failure of the prosecution to disclose
this and other material exculpatory statements of Jason Greenwell and its
presentation ofmisleading and deceptivepreliminaryhearing testimony
combined to trick the defendant and deny him the substantial rights to cross
examine witnesses, present an affirmative defense, negate elements of the
special circumstance and be represented by competent rather than
intentionally misled counsel.
The wrongs suffered by the defendant require an evidentiary hearing
where the defendant can establish additional "materiality," before
respondent court rules on the motion, through the testimony of Dr. Gary
Walter, the pathologist who performedthe autopsy in this case, Jason
Greenwell, Detective Patrick Zuchelli and District Attorney Investigator
Isabel Funaro and others that Dystiny Myers was strangled by a ligature
and cloth glove in the bedroom at 311 Mars Court. (People v. Pompa-Ortiz
(1980) 27 Cal.3d 519, 523 [right to a public preliminary hearing was a
substantial right and its denial required setting aside the information];
People v. Coleman (1988) 46 Cal.3d749 [defendant denied competent
representation]; People v. Mackey (19Z5) 176 Cal.App.3d 177 [right to
cross examination denied when prosecutionfailed to disclose witness
statement and that witness had been hypnotized]; Stanton v. Superior Court
(1994) 193 Cal.App.3d 265, 269 [defendant denied evidence material to
cross examination of witness]; Merrillv. Superior Court (1994) 27
22
CaLApp. 4th 1586, 1595-1596 [defendant denied material exculpatory
eyewitness who said the defendant was not the killer].)
The defendant is entitled to an evidentiary hearing to establish facts
outside the preliminary hearing record that demonstrate materiality and
entitle himto relief. (Stanton v. Superior Court, supra, 193 Cal.App.3d 265,
269.) The trial courtthen "considers the materiality of the non-disclosed
information and determines its effect on probable cause and the legality of
the commitment proceedings." (People v. Duncan (2000) 78 Cal.App.4th
765, 772-773.) In this case, the "materiality" was determined before
petitioner had the opportunity to establish additional material facts at an
evidentiary hearing.
In Stanton v. Superior Court, supra, 193 Cal.App.3d 265, the
defendant was denied the substantial right of effective cross-examination
when interviews of material witnesses to a traffic accident were not
disclosed to the defense prior to the preliminaryhearing. Recognizing the
complexity involved when dealing with the issue of cross examination, the
court in Stanton granted relief and noted that, "Each of the eyewitnesses
could have been vigorously cross-examined using the contents of the report
withheld by the prosecution" ... "Consequently, the undisclosed report
contained exculpatory evidence on the focal issue before the magistrate and
would have served the dual purpose of impeaching the prosecution's case
and establishing an affirmative defense to the gross negligence." (Stanton
vs. Superior Court, supra, 193 Cal.App.3d at 273.) The Court further
stated, "Nondisclosure of evidence impeaching eyewitnesses on material
issues is the deprivation of a substantial right under Jennings, (citation
omitted.) The defense was unquestionably handicapped by the prosecutorial
error." (Ibid.)
23
In Merrill v. Superior Court (1994) 27 Cal.App. 4th 1586, 1595-
1596, the trial court found at a post-conviction habeas corpus evidentiary
hearing that the prosecution had withheld substantial material evidence of
guilt, an eyewitness who stated the defendant was not the killer. The
prosecution did not oppose a new trial, and the defendant filed a motion for
a new preliminary hearing. The motion was denied and the defendant filed
a writ with the court of appeal. While the Court of Appeal found no abuse
of discretion when the trial court reviewed the preliminary hearing evidence
in light of the undisputed exculpatory evidence, it implied the lower court
should have decided the case differently and specifically noted that the
withheld evidence was substantial and material. (Id. at 1595.)
The principles ofBrady and its progeny are clearly applicable when
material exculpatory evidence is denied to a defendant prior to a
preliminary hearing. (Merrill v. Superior Court, supra, 27 Cal.App. 4th
1586, 1595-1596.) The California Supreme Court has held that "evidence
is material if there is a reasonable probability its disclosure would have
altered the trial results."(People v. Zambrano (2007) 41 CaUth 1082,
1133.) The requisite "reasonable probability" is a chance great enough,
under the totality of the circumstances, to "undermine our confidence in the
outcome," and is measured by an objective standard. (In re Sassounian
(1995) 9 CaUth 535, 546.)
The undisclosed statements of Jason Greenwell were material and
"undermined confidence in the outcome of the proceedings" by providing
direct evidence the victim was killed in the bedroom of 311 Mars Court and
the special circumstance of kidnaping and torture were not true, especially
when considering the physical evidence and the placement of the duct tape
over this ligature on the victim's neck. With this evidence to support the
24
requisite Penal Code § 866(a) offer of proof, competent cross examination
of Detective Zuchelli, Deputy McDonald and others, and an affirmative
defense presented through the testimony of Dr. Walter and others would
have combined to defeat the special circumstance allegations at the
preliminary hearing.
However, the issue presented is not simply whether or not sufficient
probable cause remains to support the special circumstances after the
statements of Jason Greenwell are weighed and considered by the trial
court, as in Merrill. The answer is yes, there remained sufficient probable
cause after the secret statement of Jason Greenwell was considered by
respondent court. However, the defendant was clearly wronged by the
conduct of the prosecution and denied the right to effectively cross-
examine Detective Zuchelli, Deputy McDonald and others and, of most
importance, present an affirmative defense through Dr. Gary Walter and
other witnesses. Clearly, Dr. Walter would have known the details
concerning the time of death that Deputy Stewart could not recall, and
answer definitive questions concerning the placement, nature and impact of
the glove and ligature. An evidentiary hearingwill establish that no reliable
evidence, certainly not the contradictory statements of the defendants,
supports a finding of probable cause for the special circumstances.
This problem was not created by the defendant but by the intentional
decision by the prosecutionto withhold material exculpatory evidence and
manipulate the then marginal and now obviously unsustainable special
circumstance allegations to its advantage. The defendant was entitled to the
exculpatory statements of Jason Greenwell without any demand for
discovery. (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83
S.Ct. 1194; Izazaga v. Superior Court (1991) 54 Cal.3d 356.) In addition,
25
California Penal Code § 1054 (b) requires the prosecution to disclose the
statements of all defendant and §1054 (e) requires the disclosure of all
exculpatory evidence. The disclosure of the statements of Jason Greenwell
would not have delayed the preliminary hearing or deprived the prosecution
of any constitutional right. (See Galindo v. Superior Court (2010) 50
CaUth 1.)
The conduct of the prosecution intentionally interfered with the
defendant's Sixth Amendment right to competent counsel. Time ofdeath
was a key fact that would either establish or rebut the special circumstances.
Competent counsel would have taken the facts from the secret interview of
Jason Greenwell and, through cross examination and an affirmative
defense, established the victim died quickly in the bedroom. If
demonstrated by facts at the evidentiary hearing, the conduct in this case
could rise to the level of a Sixth Amendment violation of the defendant's
rights by the prosecution. (See Boulas v. Superior Court (1986) 188
Cal.App.3d 422, 430 [court may fashion remedy to correct wrong for 6th
Amendment violation]; Barber v. Municipal Court (1979) 24 Cal.3d 742
[same]; Maine v. Molton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d
48 [same]; UnitedStates v. Morrison (1981) 449 U.S. 361 [101 S.Ct. 665;
66 L.Ed.2d 564] [same].)
It is unknown what Dr. Walter will specifically say when thoroughly
examined by the defendant at the evidentiary hearing. However, it was
mischief by the prosecution that denied the defendant the right to
effectively cross examine Deputy McDonald and present Dr. Walter as an
affirmative defense witness at the preliminaryhearing. The prosecution
should not benefit from this wrong.
26
IV
CONCLUSION
In a capital case, because of the qualitative difference between the
death penalty and a sentence of life, special scrutiny of the procedures
used is required to avoid arbitrariness and unfairness. (Gregg v.
Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 913, 96 S.Ct. 2909]; Woodson v.
North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 26 S.Ct. 2978].)
As the United States Supreme Court stated in Gregg, supra, 49 L.Ed.2d at
882, "When a defendant's life is at stake, the Court has been particularly
sensitive to insure that every safeguard is observed."
The defendant, through no fault of his own, was deprived of a fair
and preliminary hearing and competent representation. While the statement
of Jason Greenwell is exculpatory and exonerating, it is insufficient alone to
compel a new preliminary hearing and remedy the harm done to petitioner.
However, it is clear that this non-disclosed statement of Jason Greenwell
and the evasive testimony of the prosecution's witnesses denied petitioner
substantial rights at the preliminary hearing.
The only just remedy is to allow petitioner to establish "materiality"
at an evidentiary hearing before respondentcourt rules on his motion to
dismiss the special circumstances. Respondentcourt's ruling must be
reversed and petitioner must be granted the opportunity to conduct a
complete evidentiary hearing.
Dated: February 15, 2012 Respectfully submitted,
27
William Roy McLennanRobert Thomas Allen
Attorneys for Petitioner
PROOF OF SERVICE(CCP § 1013(a) AND 2015.5)
I am employed in the County of San Luis Obispo, State of California. I am over the ageof 18 and not a party to the within action; my business address is 1022 Mill Street, San LuisObispo, CA 93401.
On February 15, 2012,1 served a copy of the attached "PETITION FOR REVIEW INA CAPITAL CASE" on the interested parties in this action by placing same in a sealedenvelope, addressed as follows:
Honorable Barry LaBarberaSan Luis Obispo Superior Court1035 Palm StreetSan Luis Obispo, CA 93401
The Honorable Arthur GilbertPresiding Justice and Associate JusticesDivision 6, Second Appellate District200 E. Santa Clara StreetVentura, CA 93001
Gerald C. Carrasco, Esq.Attorney at Law1119 Palm StreetSan Luis Obispo, CA 93401
Michael R. Cummins, Esq.Attorney at Law3220 South Higuera, Suite 325San Luis Obispo, CA 93401
Timothy S. CovelloChiefDeputy District AttorneyOffice of the District AttorneyCounty of San Luis ObispoCounty Government Center, 4th FloorSan Luis Obispo, CA 93408
Attorney General Kamala HarrisOffice of the Attorney General300 South Spring Street, 5th FloorLos Angeles, CA 90013
Harold V. Mesick, Esq.Attorney at LawP.O. Box 23San Luis Obispo, CA 93406
Gael G. Mueller, Esq.Mueller & Mueller867 Pacific Street, Suite 230San Luis Obispo, CA 93401
^ BY MAIL - I caused such envelope with postage thereon fully prepaid to be placed inthe U.S. mail at San Luis Obispo, California. I am readily familiar with the firm's practiceof collection and processing correspondence for mailing. Under that practice, it isdeposited with the U.S. Postal Service on that same day with postage thereon fullyprepaid, at San Luis Obispo, California, in the ordinary course of business. I am awarethat on motion of the party served, service is presumed invalid if the postal cancellationdate or postage meter date is more than one day after the date of deposit for mailing inaffidavit.
I declare under penalty of perjury under the laws of the state of California and the UnitedStates of America that the foregoing is true and correct and that this declaration was executed onFebruary 15,2012, at San Luis Obispo, California.
,-~ ip^/^CAVREN tiHILINA
28
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION: 6
DATE: February 14,2012
William R McLennan
McLennan Law
1022 Mill St., "E"San Luis Obispo, CA 93401
TY MICHAEL HILL,Petitioner, .v.
SUPERIOR COURT, COUNTY OF SAN LUIS OBISPO,Respondent;THE PEOPLE,Real Partyin Interest.
B238833
San Luis Obispo County No. F452204
THE COURT:
Petition forwrit ofmandate/prohibition is denied.
cc: File
EXHIBIT A