A Family Torn Apart

By David Kohn - CBSNews.com

To many, it seemed to be a perfect life. Jane and Bob Dorotik had been married for 30 years. But then it all turned sour. In February 2000, Bob disappeared. Early the next morning, his body was found by a mountain road near their home. He had been beaten and strangled.

Three days later police arrested Jane for murder. She claimed she was completely innocent, and said that she loved her husband. But police say she had ample motive. The couple, who had separated and reconciled once, were reportedly not getting along.

But the main motive was money. Police said that Jane worried that if the couple divorced, she would have to pay him almost $50,000 a year in alimony. They said that this would put a crimp in plans to expand her own business, raising and grooming horses.

Police also say there was also ample physical evidence against her. The prosecution claimed that Bob was actually killed in the couple's house, and then dumped on the road. Detectives say they found "massive" amounts of blood in the couple's bedroom.

But many people close to Jane, including her daughter Claire, insist Jane is innocent and believe the real killer remains at large. Jane's attorneys came up with an unusual way to defend their client - and their strategy tears the family apart.

After deliberating for four days, the jury found Jane Dorotik guilty of first-degree murder.

As for Jane's daughter – the verdict officially ended speculation that Claire, not her mom, killed Bob Dorotik. But it didn't answer all the questions. Some, including the judge in the case, suggested that Claire may have been involved.

Jane was sentenced to serve 25 years to life in prison.

Jane Marguerite Dorotik is an American-born woman who is serving a 25 year-to-life sentence at the California Institution for Women in Corona, California for the February 2000 murder of her husband, Bob. Many people however believe that Jane is innocent of the murder and that Jane's daughter Claire, who was 24 at the time, was the actual culprit.

Background

At the time of Bob's murder, he and his wife Jane Dorotik had been married for 30 years and had 3 children. Jane was a successful businesswoman and health care executive, and on her income, the Dorotik family had been able to purchase a ranch in Valley Center, California. However, the couple had been experiencing marital difficulties in the years leading up to Bob's death. A large contributing factor to this was the amount of money Jane and her daughter Claire spent on their horses. Shortly before his death, Bob had filed for divorce from Jane, which meant that Jane, who made significantly more money than her husband, would have to pay Bob 40 percent of her salary in alimony, which was almost $50,000 per year. The couple had briefly separated, but later reconciled and moved into a new home. In addition, the couple had recently taken out life insurance policies on each other.

Crime and Investigation

On the afternoon of February 13, 2000, Jane Dorotik reported her husband Bob, 55, missing. She claimed to police that he had gone for a jog several hours earlier and had not returned. The next morning, Bob's body was found beaten to death several miles away on the roadside. Police immediately began to suspect his estranged wife Jane of the crime.

Evidence in the case quickly amounted. At the scene, police noticed there were three different tire tracks, and they were able to match the tracks back to Jane's Ford F-250. Also, in the couple's bedroom, police found a staggering amount of blood which someone had attempted to clean up. Before the results of the blood evidence was even returned, Bob's wife Jane was charged with first-degree murder and was placed in the San Diego County Jail, but she eventually made bail.

Pre-Trial

Jane Dorotik's murder trial began in May 2001 one year after the murder of her husband. She had already pled not guilty to the crime, and had already made public appeals proclaiming her innocence.

Before the trial began, Jane's adult daughter Claire had been incriminated in the crime. As a matter of fact, Jane's own defense attorneys had pointed to her as the killer. At a pre-trial hearing, Claire decided to plead the fifth; she did not testify at her mother's murder trial, asserting her right against self-incrimination. Jane's sister Bonnie Long, and a ranch hand named Leonel Morales, also invoked their Fifth Amendment rights.

Verdict and Aftermath

Jane's murder jury deliberated her fate for more than four days. On June 13, 2001, her jury announced that Jane was guilty of the charged crime of first-degree murder,

Jane has made several attempts to appeal her murder conviction on the bases of ineffective assistance of counsel and failure to do DNA testing. All of her appeals have been denied, and barring a successful appeal, she will be in prison until at least the year 2025.

Claire Dorotik, who was implicated in her father's murder and according to a 2011 interview with Paula Zahn, still harbors public suspicion, is now a psychotherapist specializing in equine therapy. She currently lives in Denver, Colorado and writes to her mother in prison.

Jane Dorotik gets 25 to life for murder

By Kimberly Epler - NCTimes.com

August 3, 2001

VISTA -- A Superior Court judge on Thursday sentenced Jane Dorotik, a Valley Center woman convicted of killing her husband, to 25 years to life in prison after denying a last-ditch effort by her attorney to secure a new trial.

Judge Joan Weber said testimony given last week by a new defense witness was fatally flawed and even if a jury believed the woman, it was not enough to overcome extensive evidence presented at trial.

The judge also denied a defense request to delay her ruling while attorneys pursued a new lead. Weber said the witnesses the defense was seeking could only point to other people having a role in the murder, not contradict evidence against Dorotik.

"We will probably never know all the parties who had a role in aiding and abetting before and after the fact of the murder," Weber said. "The fact remains there is substantial circumstantial evidence tying the defendant to this crime beyond a reasonable doubt.

"How could she get her own husband's blood on her hands if she was not involved in the homicide?" Weber asked.

A key piece of evidence in the trial was a syringe with Dorotik's fingerprint in her husband's blood.

Before she was sentenced, Dorotik maintained her innocence and asked the prosecution to have investigators continue to search for the true killer.

"I loved my husband," she said. "I still love my husband. This has not been justice that's served here."

Dorotik, 54, was convicted in June for beating and strangling her husband, Robert Dorotik, in their bedroom, then dumping his body along his favorite running path a few miles away from the horse ranch they rented.

His body was found on Feb. 14, 2000, one day after Jane Dorotik reported him missing.

Prosecutors contend that Jane Dorotik murdered her husband to prevent him from receiving 40 percent of her income if the couple divorced. Robert Dorotik had filed for divorce in 1997, but the couple later reconciled.

After the sentencing, Jane Dorotik fought back tears as she hugged her defense attorneys, Kerry Steigerwalt and Cole Casey. Steigerwalt said he will file an appeal within the next two weeks.

Outside the courtroom, prosecutor Bonnie Howard-Regan said she was sure the right person was sentenced for the murder and she was frustrated by defense attempts to delay the sentencing.

"We've already found the truth. We have no doubts about that," Howard-Regan said, adding she was anxious to call the Dorotiks' two sons, who testified against their mother at trial.

"They want some closure," she said. "They will always know their mother killed their father. I'm just glad it's over."

Steigerwalt said he will still try to track down two witnesses he believes can match testimony presented at trial.

A man called a homicide detective Wednesday to say he visited a Valley Center store the day Robert Dorotik's body was found. There, he was told by a third person about two men who said that the day before, they saw two Latino men with a white man slumped in between them parked in a black truck near where the body was recovered.

Defense witness Lisa Marie Singh told jurors about a nearly identical sighting at the end of the trial.

Prosecutors argued that even if the two men could be found, their testimony was irrelevant because blood evidence ties Jane Dorotik to the murder scene in the house and a witness saw her driving the truck that is an exact match to tire prints found where the body was dumped.

The judge agreed. She called the search for the two men a "fishing expedition" and denied Steigerwalt's request to have more time to check out the story.

Weber also dismissed the testimony of Sheri Newton, who said she saw the victim jogging near the area where his body was found the next day and only moments before she was nearly hit by a black truck.

Steigerwalt had based his motion for a new trial on Newton's testimony, saying it backed up Singh's testimony. Newton came forward after jurors were already in deliberation and the judge refused at the time to reopen the case.

"It's unfortunate that it ends here," said Steigerwalt. But, he called the judge's discussion about other people possibly being involved in the murder a step forward.

"All along we've maintained there was more to this than Jane Dorotik being the killer," he said.

Bonnie Long, who has steadfastly maintained her sister Jane Dorotik's innocence, said the family was devastated by the sentencing.

"It's horrible," she said. "I know he wasn't killed in the bedroom. I know we came out of there with a lot of questions unanswered."

Jane Dorotik faces life in prison

By Kimberly Epler - NCTimes.com

June 13, 2001

VISTA -- A Valley Center woman was found guilty of first-degree murder Tuesday for beating and strangling her husband in their bedroom last year, then dumping his body a few miles away from the horse ranch they rented.

Jane Dorotik, 54, buried her head in her hands after the verdict was read. She blinked back tears as she stared at the jurors in disbelief, mouthing the word "No."

Sentencing was set for July 11.

Dorotik faces up to life in prison for the murder of Robert Dorotik, 55, who was a marathon runner. His sweat-suit-clad body was found on Feb. 14, 2000, a day after Jane Dorotik reported him missing. She told investigators the last time she saw him he was going for a run.

"She's just stunned. She was so convinced she was going to be found not guilty," defense attorney Kerry Steigerwalt said after speaking with his client, who earned a six-figure salary as a senior regional director of operations for psychiatric hospitals in Southern California.

Prosecutor Bonnie Howard-Regan said the verdict was a relief. She said the evidence clearly pointed to Jane Dorotik as the killer. There was nothing to back up the defense's contention that the couple's daughter, Claire Dorotik, or another person committed the murder, she said.

"The evidence came out showing Jane Dorotik was the true perpetrator of this terrible crime," Howard-Regan said.

Jurors declined to comment on the verdict that was reached late Monday night. One woman answered simply, "yes," when asked if it was a difficult decision.

During the trial, the prosecution contended that Jane Dorotik killed her husband to prevent losing 40 percent of her $118,000 a year salary if they divorced. His business was not going well and she was worried that having to support her husband would put a crimp in her plans to buy property and train horses, Howard-Regan told jurors.

The Dorotiks separated in 1997 but later reconciled. The couple's sons testified that their parents often fought about the money Jane Dorotik spent on horses.

Investigators said they found spatters of Robert Dorotik's blood on the comforter, the walls and the ceiling of the couple's bedroom. A larger stain of his blood was said to have been found on a mattress, which had been flipped over, and under a portion of the bedroom carpet. In addition, according to testimony, his blood seeped into a room below the upstairs suite.

The defense pointed to Claire Dorotik, 25, as the true murderer. She was living with her parents when her father was killed. Steigerwalt argued she had a rocky relationship with Robert Dorotik and she was afraid he would take away her horses -- a passion she shared with her mother.

Steigerwalt also argued that investigators failed to confirm Claire Dorotik's alibi and follow other leads once they focused their attention on Jane Dorotik.

Steigerwalt said he will file a motion for a new trial by the end of the month based on information from a witness who came forward last week. Just before jurors were led into the courtroom for the reading of the verdict, Steigerwalt made a second request to reopen the case so jurors could hear testimony from the woman.

Judge Joan Weber denied the request, as she did when he first raised the issue last week while jurors were still in the midst of deliberations.

Several members of Jane Dorotik's family were in the courtroom when the verdict was read. On the verge of tears, her sister, Bonnie Long, said she knows Jane Dorotik is innocent.

Jane Dorotik's oldest son, Alex Dorotik, buried his face in his hands while waiting to hear the jury's decision and left immediately after the verdict was read. He had testified for the prosecution during the trial.

A childhood friend who grew up with Robert Dorotik in El Campo, Texas, said he is still shocked by what happened.

"Whenever I saw Robert, he was always the same gentle and intelligent person who came from a wholesome small-town environment," said Ron Massingill from his office in Dallas. "It is incredulous to see his life end in such a tragic and inhumane manner. He will be missed by his family and numerous friends."

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

2003 Cal. App. Unpub. LEXIS 10797

THE PEOPLE, Plaintiff and Respondent,
v.
JANE MARGURITE DOROTIK, Defendant and Appellant.

D038706

November 18, 2003, Filed

NOTICE:      [*1]  NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977. 

PRIOR HISTORY:    APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. SCN109628. Joan P. Weber, Judge. 

DISPOSITION:    Affirmed.

JUDGES: BENKE, J. WE CONCUR: McCONNELL, P. J., O'ROURKE, J. 

OPINION BY: BENKE

OPINION

Jane Margurite Dorotik was convicted of first degree murder and was sentenced to a term of 25 years to life. She appeals, arguing the trial court erred in refusing to instruct concerning the lesser included offense of voluntary manslaughter and that the evidence was insufficient to support a finding of malice aforethought or premeditation and deliberation.

FACTS

In February 2000 appellant and her husband Robert Dorotik (Robert) were living on a ranch they rented in a rural area near Escondido. The pair had three adult children. Appellant and Robert frequently argued about money. Appellant and daughter Claire were horse enthusiasts. Robert disapproved [*2]  of the money spent by appellant to support that interest. The couple was not particularly affectionate, sometimes discussed divorce but never had a physical confrontation.

In 1997 appellant and Robert separated. Robert filed for divorce and sought spousal support from appellant whose employment was considerably more remunerative. The couple reconciled in 1998 and resided together at the ranch, agreeing to keep their finances separate. Their relationship was uneven and at times they argued. Robert started a business but it did not do well.

On the evening of February 13, 2000, appellant called friends and asked if they had seen Robert. Appellant explained Robert had gone for a run at 1:00 p.m. and had not returned. Appellant called the sheriff and reported Robert missing. A search was undertaken. The next day a sweatshirt, which appellant stated Robert was wearing on his run, was found on a road about two miles from appellant's home. Shortly thereafter, Robert's body was found in brush next to a road about a half mile from where the sweatshirt was located. Appellant was notified. She started to cry and asked if her husband had suffered.

It was determined that Robert died from blunt [*3]  force injures to the head, with ligature strangulation as a contributing factor. He suffered at least three blows to the head. He had two large lacerations at the right side and back of the head with skull fractures underneath those lacerations and direct damage to the brain at the back of the head. There was a depressed skull fracture on the right side of the head. In the back of the head the bone was completely displaced and there was a hole in the skull. Robert had abrasions on his face and a ligature mark on his neck. There were abrasions and contusions on his hands that appeared to be defensive wounds. Robert was alive when strangled. An expert concluded the damage to Robert's head was consistent with hammer strikes.

The police interviewed appellant on February 13, 2000. She told the officers that about 1:00 p.m. Robert told her he was going to jog. She went to the barn and did not see him leave. When she returned to the house at 4:00 p.m., Robert was not there. When he had not returned by 5:00 p.m., she went out looking but could not find him. She then called the police. Appellant told the officers she and Robert each had a $ 250,000 life insurance policy with the other as beneficiary.

 [*4]  A search was conducted of appellant's residence. Bloodstains were found in several areas in the master bedroom. The patterning of some of the stains was consistent with a beating occurring in the room. When officers turned over the mattress in the room, they found a large-volume bloodstain near the headboard. There was a folded, bloodstained towel between the mattress and box springs. In a bag in the master bedroom the officers found a syringe containing a horse tranquilizer. A bloody fingerprint was found on one of the syringes. The print was identified as appellant's. A bed sheet was found in a hamper with transfer, drip and impact blood spatters on it. A steam shampooer and cleaning supplies were found in a living room closet. Blood was found on the handle, cap and nozzle of one of the bottles. Bloodstains were also found in the bed of a truck used at the ranch. DNA testing indicated many of these bloodstains were consistent with Robert's blood.

An expert in bloodstain patterning opined that the events started on the bed in the master bedroom. Robert was struck at least twice and perhaps a third time on the bed. He remained on the bed for a time after the assault. At some point [*5]  Robert moved or was moved to another area in the bedroom where he was struck at least once more. Robert remained in that area for some time.

The expert also examined the clothes from Robert's body. There were transfer but no spatter stains on his T-shirt. There was no blood on his sweatpants. There were two bloodstains and a large amount of feces on Robert's boxer shorts. There was no blood on his shoes.

Appellant did not testify. She offered evidence suggesting that someone else killed Robert.

DISCUSSION

Appellant argues the evidence was insufficient to prove malice aforethought and premeditation and deliberation. In a related argument she contends the trial court erred in refusing to instruct concerning the lesser included offense of voluntary manslaughter.

A. Instructions on Voluntary Manslaughter

Appellant argues the trial court erred in denying her request for an instruction on the lesser included offense of voluntary manslaughter.

At the instructions conference, appellant, without reference to any specific facts, stated that the evidence would reasonably allow the conclusion the killing was the result of a "sudden eruption of emotions, emotions that clouded one's [*6]  ability to form the necessary mental state required for murder" and that instructions should, therefore, be given on voluntary manslaughter. The trial court stated the only conceivable form of voluntary manslaughter applicable was that based on heat of passion and denied the requested instruction finding no evidence to support that theory.

Citing Mullaney v. Wilbur (1975) 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, appellant argues this was error since in every murder trial the prosecution must always prove the absence of heat of passion. Appellant is incorrect. Mullaney was a murder case in which the issue of heat of passion was clearly raised by the evidence and argued by the defense. The jury was instructed that if it found the killing was intentional and unlawful, malice aforethought was conclusively presumed unless the defendant proved by a preponderance of evidence that he acted in the heat of passion on sudden provocation. (Id. at p. 686.)

The Supreme Court found such instruction constitutional error and stated: "We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of [*7]  heat of passion on sudden provocation when the issue is properly presented in a homicide case." (Mullaney v. Wilbu, supra, 421 U.S. at p. 704, italics added.)

Mullaney does not require that in every homicide case the prosecution prove the absence of heat of passion. The prosecution is required to do so only when the issue is "properly presented." In People v. Rios (2000) 23 Cal.4th 450 the court, citing Mullaney, stated the issue of heat of passion is properly presented when prosecution evidence suggests that the killing may have been provoked or when the defense makes a showing of provocation. (Id. at pp. 461-462.)

To require an instruction on a lesser offense there must be evidence substantial enough to merit consideration by the jury. " ' "Substantial evidence' . . . is " 'evidence from which a jury composed of reasonable [persons] could conclude[]' " that the lesser offense, but not the greater, was committed. (Citations.]' [Citations.]" (People v. Hughes (2002) 27 Cal.4th 287, 366-367.)

There was no substantial evidence in this case requiring an instruction on voluntary manslaughter based [*8]  on provocation and heat of passion. Voluntary manslaughter has specific and relatively complex elements. In the context of this case voluntary manslaughter is an intentional, unlawful homicide upon a sudden quarrel or heat of passion if the killer's reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than judgment. No specific type of provocation is required, and the passion aroused need not be anger or rage but can be any violent, intense, high-wrought or enthusiastic emotion other than revenge. Thus, a person who intentionally kills as a result of provocation, that is upon a sudden quarrel or heat of passion, lacks malice and is guilty not of murder but of the lesser offense of voluntary manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, 108, 999 P.2d 666.)

Appellant's attempt on appeal to demonstrate substantial evidence of provocation and heat of passion is unavailing. She notes evidence of her peaceful character, of Robert's difficulties with anger management, his occasional [*9]  verbal humiliation of appellant, the brutality of the killing and the lack of an apparent motive. Such evidence at best allows speculation that appellant killed Robert out of anger. It is, however, not substantial evidence of provocation and heat of passion. The trial court properly denied appellant's request for instructions on voluntary manslaughter.

B. Sufficiency of the Evidence

Appellant argues the prosecution failed to offer evidence that either directly or by reasonable inference supported a finding of premeditated and deliberated murder. She further argues the evidence was insufficient to support a finding of malice aforethought since she contends the prosecution failed to meet its burden of proving an absence of heat of passion.

In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the [*10]  elements of the crime beyond a reasonable doubt. (People v. Pugh (2002) 104 Cal.App.4th 66, 72.)

As noted above, we conclude the prosecution in this case had no burden of proving a lack of heat of passion and, therefore, no issue as cast by appellant arises concerning the sufficiency of evidence supporting a finding of malice aforethought.

Appellant's argument concerning the sufficiency of evidence to support a finding of premeditation and deliberation is less easily resolved. CALJIC No. 8.20 is a correct statement of the concept of premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1123, 831 P.2d 1159.) The instruction defines "deliberate" to mean "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." "Premeditated" means "considered beforehand."

To be first degree murder the killing must be "preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of [*11]  passion or other condition precluding the idea of deliberation." (CALJIC. No. 8.20.)

However, "The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberated and premeditated. The time will vary with different individuals and under varying circumstances." (CALJIC. No. 8.20.)

The test is not the "duration of time, rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder in the first degree." (CALJIC. No. 8.20.)

"To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and having in mind the consequences she decides to and does kill." (CALJIC. No. 8.20.)

In determining whether sufficient evidence supports a verdict of first degree murder, we look generally for evidence of planning activity, motive to kill and the manner of killing. [*12]  There is, however, no formula or particular combination of these factors necessary for a finding of premeditation and deliberation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080-1082; People v. Perez, supra, 2 Cal.4th at pp. 1124-1126.)

The Attorney General argues the evidence showed planning, a motive to kill and manner of killing supportive of a finding of first degree murder. As to planning, the People assert that the presence of two weapons, i.e., a rope and a hammer, allows the inference that at least one of the weapons was ready in the bedroom in anticipation of the killing. The Attorney General also finds evidence of planning in the absence of Claire from the home at the time of the killing and the fact she would not return for a lengthy period. We conclude these factors suggest little about planning. It is mere speculation that one or more of the weapons was in the bedroom in anticipation of killing Robert and Claire's absence could be mere happenstance.

The Attorney General finds evidence of motive in appellant and Robert's troubled marriage, in their financial disagreements and in appellant's desire for financial independence. The People [*13]  note a divorce would in all probability have led to appellant paying Robert spousal support. In addition, the proceeds of his life insurance policy would have been a financial windfall and done much to advance appellant's life plans.

While there is some generic evidence of motive in this case, it is not the particular and specific kind that would, on its own, strongly support a conclusion that a murder was premeditated and deliberated.

The crucial evidence of appellant's state of mind in murdering Robert is the manner of killing. In reviewing that evidence it is important to remember that detailed and meaningful planning is not an element of premeditation and deliberation. The question rather is whether the evidence supports a finding of "pre-existing reflection," whether evidence suggests a weighing and considering of the consequences in deciding to kill.

The hammer blows to Robert's head were all to the back and side. The assault began while Robert was on the bed in the master bedroom. Such evidence strongly suggests that Robert was not aware of a pending attack, that he was in a position of particular vulnerability and relative defenselessness. An attack of this deadly sort on [*14]  a person in such a position allows the conclusion that the assault was not an act of impulse but was calculated. After the assault Robert was on the bed bleeding for some period of time. He was later moved or he moved to another position in the bedroom where he was again struck in the back or side of the head. At some point while still alive Robert was strangled. The use of multiple blows to the head over a period of time and in different locations evidences not only an intent to kill but time to reflect and consider. This conclusion is made stronger by the use of multiple weapons.

We conclude that a rational trier of fact could find elements of premeditated murder beyond a reasonable doubt.

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Dorotik v. Davidson

JANE M. DOROTIK, PETITIONER,
v.
DAWN DAVIDSON, WARDEN RESPONDENT.

June 12, 2009

The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY; (2) GRANTING PETITIONER'S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Jane M. Dorotik, a state prisoner appearing pro se, filed a Petition for Writ of Habeas Corpus ("Petition") with this Court pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, the Honorable Louisa S. Porter, United States Magistrate Judge, submitted a report and recommendation ("R&R") recommending that this Court deny the Petition. [Doc. No. 20.] Petitioner timely filed Objections to the Report. [Doc. No. 29.] This Court subsequently overruled Petitioner's objections, adopted the Report, and denied the Petition ("Denial"). [Doc. No. 30.] Petitioner now seeks a certificate of appealability ("Application") pursuant to 28 U.S.C. § 2253 and Federal Rule of Appellate Procedure 22(b) [see doc. no. 33] and moves for Leave to Appeal in Forma Pauperis ("IFP") [doc. no. 34].

Legal Standard

A state prisoner may not appeal the denial of a § 2254 habeas petition unless she obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons a certificate is not warranted. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, a petitioner must show that: (1) the issues are debatable among jurists of reason, (2) a court could resolve the issues in a different manner, or (3) the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (internal citations omitted). A petitioner does not need to show that he "should prevail on the merits. He has already failed in that endeavor." Lambright, 220 F.3d at 1025 (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The Court has a duty to construe the pleadings liberally and must afford the plaintiff the benefit of any doubt where the plaintiff appears pro se. See Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003).

Analysis

In her Application, Petitioner raises the following issues: (1) "whether the state court's resolution of Petitioner's claim for ineffective assistance of counsel, including failure to investigate, was the product of an unreasonable application or contrary to U.S. Supreme Court precedent"; (2) "whether the state court acted with an unreasonable application or contrary to U.S. Supreme Court authority by denying Petitioner's claim that she was denied the right to present a defense by not allowing a key witness to provide her information to the jury and by denying DNA testing"; and (3) "whether the state court acted with an unreasonable application or contrary to U.S. Supreme Court authority by denying Petitioner's right to overcome a procedural default based on delayed discovery and actual innocence." (Application at 2.)

I. Ineffective Assistance of Counsel

Petitioner claims that she is entitled to a certificate of appealability on the grounds that defense counsel's assistance was constitutionally substandard. (Application at 5.) Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). To make out a claim of ineffective assistance of counsel under Strickland, Petitioner must show (1) "that counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Id. The court need not address both the performance prong and the prejudice prong if the petitioner fails to make a sufficient showing of either. Strickland, 466 U.S. at 700. The Strickland test applies in full force in federal collateral proceedings. Id. at 697.

The first prong of the Strickland test for deficiency of counsel requires a plaintiff to demonstrate that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." Id.at 688. Furthermore, judicial scrutiny of counsel must be highly deferential because of the risk that the benefit of hindsight would make the counsel's performance seem unreasonable. Id. at 689.

The second prong of the Strickland test requires that any deficiency of counsel also be prejudicial. Id. at 692. Therefore, even if a defendant is able to show that counsel acted unreasonably, he still must show that counsel's actions had an adverse effect on the outcome. Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Petitioner argues that her Sixth Amendment right to receive effective assistance of counsel was violated in that counsel failed to: (1) make a sufficient investigation before pursuing the flawed theory that Petitioner's daughter was the killer; (2) strenuously challenge the prosecution's theory of time of death; (3) provide meaningful adversarial analysis by presenting independent forensic evidence at trial; (4) prepare and call Petitioner as a witness; (5) demonstrate that Petitioner was physically incapable of committing the murder as theorized by the prosecution; (6) object or move for a mistrial when a police detective testified that he believed that Petitioner was the murderer; (7) obtain DNA testing on several items of physical evidence; (8) present alternate scenarios consistent with the physical evidence; (9) provide innocent explanations for the apparently incriminating evidence; (10) present evidence that the police focused on Petitioner from the beginning of the investigation and failed to follow other leads which would have led them to the real killer; and (11) make good on promises to the jury regarding what the evidence would show, refrain from admitting to the jury that Petitioner was guilty, and refrain from stating that counsel personally did not believe in the evidence he presented at trial. (Application at 5-14; Denial at 8-9; Petition at 16-46.) Petitioner fails to make a substantial showing of the denial of a constitutional right by ineffective assistance of counsel, as interpreted through Strickland, with respect to all allegations enumerated in said claim.

A. Deficiency of Counsel

Petitioner fails to show that counsel's representation was deficient under Strickland. First, counsel is strongly "presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Therefore, this Court must begin its analysis on the presumption that counsel acted reasonably with regard to the enumerated allegations.

When determining whether counsel's assistance is deficient, the Court must consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688. Here, the circumstances support the presumption that defense counsel made reasonable strategic decisions with regard to his handling of expert testimony and forensic evidence. Forensic evidence found in Petitioner's bedroom showed an impact spatter of the victim's blood; bloodstains consistent with the victim's blood were found in the bed of a truck used at the ranch; and Petitioner's fingerprint was found in the victim's blood on a syringe found in the bathroom. (See Denial at 9--13.) This and other voluminous evidence against Petitioner made it objectively reasonable for counsel to believe that acquiring any additional forensic testing or testimony could be harmful to the defense. See Strickland, 466 U.S. at 691 ("[W]hen a defendant has given counsel reason to believe that the investigations would be fruitless or even harmful, counsel's investigations may not later be challenged as unreasonable.").

While another defense attorney might have performed differently with regard to the handling of the investigation, witness testimony, forensic evidence, and trial conduct, this alone does not establish counsel's deficiency. See Strickland, 466 U.S. at 689-690 ("There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.") (internal citations omitted). Counsel was not required to raise every argument available, see Boag v. Raines, 769 F.2d 1341 (9th Cir. 1985) ("Failure to raise a meritless argument does not constitute ineffective assistance."), and contrary to Petitioner's allegations the record suggests that counsel's representation was objectively reasonable. See, e.g., Denial at 18, 22 (showing that counsel retained defense expert Dr. Curran, provided him with information about Petitioner's medical history, and obtained information from co-counsel's discussion with him, and further that counsel retained tire expert Lisa DiMaio and presented evidence at trial of a tire mark found near the victim's body that supported the defense theory that Leonel Morales murdered the decedent).

Finally, Petitioner's arguments with respect to counsel's deficiency and prejudice are largely based on speculation and generally unsupported by either law or the record. Such hindsight speculation cannot raise an issue debatable among jurists of reason that counsel's assistance was constitutionally deficient nor that her defense was prejudiced. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Simmons v. Gramley, 915 F.2d 1128, 1134 (7th Cir. 1990) ("[C]ursory allegations that are purely speculative cannot support a claim of lack of competence of counsel.").

Petitioner fails to show an issue debatable among jurists of reason that counsel's conduct with regard to the enumerated allegations rose to the level of constitutionally deficient assistance established by Strickland or its progeny. See, e.g., Williams v. Taylor, 529 U.S. 362, 395-96, 368-69 (2000) (finding counsel's assistance deficient when he failed to prepare for sentencing until a week beforehand, made a mistake of law that prevented his use of extensive records that could have benefitted the defense, and spent the weight of his closing argument telling the jury that it was difficult to find reasons why they should spare his client's life). Therefore, the Court FINDS that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to this claim.

B. Prejudice to Defense

Petitioner has not made a substantial showing that counsel's assistance prejudiced her defense. As alluded to in the Deficiency of Counsel section, supra, there was a considerable amount of forensic and testimonial evidence weighing against Petitioner at trial, not the least of which was Petitioner's fingerprint in the victim's blood and the testimony of Petitioner's two sons contradicting her assertion that she was physically incapable of moving the body. [Denial at 9-13, 18.] Assuming counsel had done what Petitioner suggests he should have, there is no reasonable probability that the jury would have changed their verdict in light of the voluminous evidence against her. Petitioner offers only speculation to show that the alternative measures she suggests would have affected the jury, and this speculation is insufficient to make a showing of prejudice under Strickland. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Simmons v. Gramley, 915 F.2d 1128, 1134 (7th Cir. 1990).

While a different course of action by counsel might arguably have had some effect on the jury, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test . . . ." Strickland, U.S. at 693 (internal citations omitted).

Petitioner has failed to show an issue debatable among jurists of reason that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Therefore, the Court FINDS that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to this claim and DOES NOT CERTIFY this claim for appeal.

II. Brady Violations, DNA, and Witness Newton

The due process clause requires the prosecution to disclose to the defense any evidence that is material either to guilt or to punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987); United States v. Bagley, 473 U.S. 667, 674 (1985); United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. at 682 (opinion of Blackmun, J.)); Pennsylvania v. Ritchie, 480 U.S. at 57; see also United States v. Valenzuela-Bernal, 458 U.S. at 868. "A 'reasonable probability of a different result is . . . shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles v. Whitley, 514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. at 678).

Petitioner raises the following issues in the second claim of her Application: "whether the court acted contrary to or applied an unreasonable application of U.S. Supreme Court authority by denying Petitioners [sic] claim that she was denied the right to present a defense by the cumulative effect of the Brady violation, by not allowing the jury to hear information from a key witness, and by not allowing DNA testing of the murder weapon and other evidence." (Application at 15).

A. DNA Testing

Petitioner claims that her due process rights and rights under California Penal Code §1404-1405 were violated because the prosecution failed to have DNA testing performed on a piece of rope alleged to be a murder weapon. (Application at 15.)

In the Denial, the Court found that the prosecution's decision not to conduct further DNA testing did not constitute a Brady violation. (Denial at 33.) The Court opined that Petitioner failed to establish "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" (See Denial at 33 (quoting Kyles, 514 U.S. at 433-34) (internal quotations omitted).)

Petitioner fails to make a substantial showing that the prosecution's decision not to conduct further DNA testing amounted to a denial of a constitutional right under Brady. First, Petitioner does not explain why DNA evidence recovered from the rope would have had any exculpatory or impeaching value; at best, Petitioner offers only speculation as to why the rope tends to show her innocence. Petitioner's mere speculation does not create a substantial showing of a reasonable probability that, had the rope been disclosed to the defense, the result of the proceeding would have been different.

Therefore, the Court FINDS that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to this claim and DOES NOT CERTIFY this claim for appeal.

B. Witness Newton

Petitioner claims that her constitutional rights were violated because the prosecution failed to disclose or delayed disclosing the identity of witness Singh, which ultimately led to the jury's inability to hear information from witness Newton. (Application at 15.)However, neither Newton's testimony nor the collective testimony of all four witnesses would create an issue debatable among jurists of reason that there was a reasonable probability of a different result, especially considering the significant amount of evidence against Petitioner that could not be effectively disputed by the witnesses' testimony. Here the evidentiary suppression does not undermine confidence in the trial. Therefore, the Court FINDS that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to this claim and DOES NOT CERTIFY this claim for appeal.

C. Cumulative Effect

Petitioner argues that the Court erred in not considering the cumulative effect of the Brady violations. In her Petition, Petitioner claimed that her due process rights were violated when the state: (1) failed to provide and caused delay in providing police interviews of witness Singh which deprived and delayed the defense from pursuing a favorable investigation; (2) failed to notify defense of evidence that tended to impeach the reliability of state's expert witness by showing the expert had made error in other cases and had employed faulty methodology; and (3) denied Petitioner's motion for a new trial, which resulted in excluding from the jury the testimony of witness Newton. (Petition at 46.) Petitioner additionally argued that defense counsel's insufficiency amounted to a Brady violation. (See Traverse at 22).

Under Kyles, evidence suppressed must be "considered collectively, not item by item." Kyles, 514 U.S. at 437. Petitioner fails to establish that the cumulative effect of the Brady violations shows a reasonable probability that, had the net evidence been provided, the result of the proceedings would have been different. Therefore, the Court FINDS that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to this claim and DOES NOT CERTIFY this claim for appeal.

III. Procedural Default

Petitioner seeks a COA on the following two Brady claims: (1) the prosecution withheld information regarding witness Singh which was favorable to the defense; and (2) the court improperly denied Petitioner's motion for a new trial. (See Denial at 28.) The Court found that adequate and independent state procedural grounds barred it from addressing the merits of the aforementioned two claims. (See Denial at 28-29 (citing In re Clark, 5 Cal. 4th 750, 766-67 (Cal. 1993) and quoting Ex parte Dixon, 41 Cal. 2d 756, 759 (Cal. 1953).) The Court concluded that Petitioner failed to establish the cause or prejudice necessary to excuse the default, or otherwise show that a fundamental miscarriage of justice would result from the court's refusal to hear the claim. (Denial at 30-32.)

When the district court denies a claim on procedural grounds rather than reaching the merits of the constitutional claim, this Court should issue a certificate of appealability if the petitioner meets two components. See Slack, 529 U.S. at 484-85. First, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Id. at 484. Second, the petitioner must show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. As both of these components are necessary to obtain a COA, this court may resolve either issue first. See id. at 485; Petrocelli v. Angelone, 248 F.3d 877, 884 & n.6 (9th Cir. 2001).

Petitioner fails to satisfy Slack'stwo-prong test. First, Petitioner fails to explain why jurists of reason would find it debatable whether the Court erred in its procedural ruling. A review of the record shows that the Court correctly found that state procedural rules barred it from reviewing the case absent a showing of cause and prejudice or Petitioner otherwise showing that a fundamental miscarriage of justice would result, all of which Petitioner failed to establish. (See Denial at 28-31.) Second, Petitioner fails to show that jurists of reason would find it debatable that the Petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484. Therefore, the court DENIES Petitioner's Petitioner's request for a certificate of appealability with regard to this claim.

IV. Motion for Leave to Proceed in Forma Pauperis

Petitioner, a state prisoner proceeding pro se, has submitted a request to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(3); FED.R.APP.P. 24(a). Petitioner has filed a notice of appeal in this action and a financial affidavit which shows $0.00. Petitioner cannot afford the $105.00 appellate filing fee. Thus, the Court GRANTS Petitioner's motion to proceed in forma pauperis, certifies that an appeal in this action is taken in good faith, and allows Petitioner to prosecute his appeal of this action as a poor person without being required to prepay fees or costs and without being required to post security.

Conclusion

(1) The Court DENIES Petitioner's Application for Certificate of Appealability on all claims; and (2) The Court GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis.

IT IS SO ORDERED.