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Her petition asserts that because her defense counsel did not investigate the existence of, and present evidence on, battered women's syndrome (BWS), she was denied her constitutional right to effective assistance of counsel. Discovery of Stevens's Body and Ensuing Investigation In the predawn hours of December 23, 1998, a La Jolla resident heard an explosion and saw a fire on La Jolla Scenic Drive near Ardath Road.One of the shots was fired from a distance of about one-half inch. Several fingerprints identified as Nourn's were found in Stevens's apartment, including some on the headboard of his bed.Barker then told Nourn to call Stevens and tell him that she was stranded on the freeway. 2052.) Furthermore, we consider the seriousness of the charges against the defendant in assessing counsel's performance. Rptr.2d 52, 917 P.2d 1175.)IIAdmissibility of BWS Evidence Generally“The theory of the ‘battered woman syndrome’ originated in the works of psychologist Lenore Walker. Walker relied on the psychological concept of ‘learned helplessness,’ under which an animal, or person, repeatedly unable to protect itself against injury, eventually learns that resistance is useless and becomes passive and despondent. Rptr.2d 142, 921 P.2d 1.) BWS has also been described as “ ‘a pattern of psychological symptoms that develop after somebody has lived in a battering relationship.’ ” (People v. Later, even if there has been no other episode of violence, the victim may change her mind about prosecuting the abuser and may recant her previous statements.” (People v. Code, § 351.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.)Expert testimony on BWS is admissible if relevant to prove or disprove a disputed issue. Her parents fought frequently over family matters, money, and Nourn's behavior. Rptr.2d 916, disapproved on another ground in People v. Appellant's testimony provided the only eyewitness account. Rptr.3d 226, which is also relied upon by the majority, likewise recites the proposition by way of footnote. The legal propriety underlying such an extension aside, this certainly was not a theory of law available to Nourn's defense counsel. There are multiple problems with applying battered woman syndrome to this case. Rptr.2d 890.) This requirement cannot be met in Nourn's case. Nourn was accused of horrific and virtually inexplicable crimes.However, when Nourn called, Stevens did not answer. Her stepfather sometimes hit her mother, who would try to fight back in self-defense. The prosecution's case rested on circumstantial evidence and exploitation of myths about battered women. 2052; see also In re Visciotti, supra, 14 Cal.4th at p. Rptr.2d 801, 926 P.2d 987.)DISPOSITIONThe judgment is vacated, and the matter is remanded to the Superior Court of San Diego County to conduct further proceedings. In fact it appears that no published case, including those cited by my colleagues (i.e., People v. At the outset, much can be said with respect to whether at the time of Stevens's murder the relationship between Nourn and Barker even qualified as one to which the battered woman syndrome applies. At the time of the murder, Nourn and Barker had been seeing each other for only four months. He lived not with Nourn but with his wife and child. 391.) Even in a capital case counsel has no blanket obligation to investigate possible “mental” defenses. The jury was going to see her two-hour-long videotaped confession.
Nourn did not say much and “just kept to [her]self.” Barker then directed Stevens to pull over on Kearny Villa Road. 281, 599 P.2d 587, italics added.) “If counsel's failure to perform these obligations results in the withdrawal of a crucial or potentially meritorious defense, ‘ “the defendant has not had the assistance to which he [or she] is entitled.” ’ [Citation.]” (People v. In August or September, she moved with Barker to Texas, where he “passed her off” as the sister of his ex-girlfriend. Nourn went to police, claiming she was a runaway, and was placed in a homeless shelter. We conclude the record contains substantial evidence that, if obtained and presented at trial by counsel, would support a finding it was not proven beyond a reasonable doubt that Nourn had the requisite specific intent to commit, or encourage or facilitate Barker's commission of, the arson. Therefore, as the criminal defense experts concluded, Nourn effectively had “no defense” to the charges against her because there was no evidence on possible BWS, state of mind, duress, and/or other defenses. The majority finds Nourn's retained trial counsel was ineffective because he deprived her of the defense of duress. Rptr.2d 231.) The majority concludes that an aider and abettor may show he or she committed the target crime under duress. The assault presented in the prosecution's theory was the act of shooting Stevens in the head. As previously noted, counsel was not ignorant of the battered woman defense. Battered woman syndrome would require she claim and explain that he did make her kill Stevens. Rptr.2d 428, 959 P.2d 735.)As he planned Nourn's defense, her counsel was also walking an ethical tightrope.On the Monday following Stevens's death, the employees of Perfect Match, a dating service at which Nourn worked for Stevens, were informed of Stevens's death. She never returned to Perfect Match and never picked up her final paycheck. Nourn's Confession The case was unresolved for three years.However, in November 2001 Nourn contacted the San Diego Police Department and confessed her role in Stevens's murder.When they arrived at Stevens's apartment, Nourn called him on the intercom and told him she needed help with her car. Nourn's mother accused her of having an affair with her stepfather when she was in high school, but Nourn told Dr. Barker was Nourn's 13th sexual partner and 12th man she met on the Internet. She was to obey Barker and not ask questions about his life. Although he would raise his hand as if he were going to hit her, he never hit her until the night of Stevens's killing. He accused her of having sex with her restaurant boss. Friedman: “I was unhappy with my relationship with [Barker], but I was scared to leave him. [Citation.] [¶] BWS evidence would have bolstered appellant's credibility and lent credence to her self-defense claim.” (People v. At trial, Nourn's trial counsel apparently had the primary “defense” of trying to have Nourn appear “sympathetic” to the jury based on the videotaped and transcribed statements she made to police. Nourn went to the door and lured Stevens out to help her on the pretext that her car was stalled. The two drove for approximately 12 miles and stopped. 735.) Certainly, no defense counsel should be held incompetent for not being prescient enough in 2003 to predict this court would for the first time in 2006 apply a newly minted theory of duress relative to felony murder to the law of aiding and abetting, and do so by expanding the battered woman syndrome far beyond any recognized application of that doctrine. Rptr.2d 827, 926 P.2d 1013, the majority then without critical analysis extrapolates: “We believe the reasoning in Anderson necessarily applies in a like manner to the ‘natural and probable consequences' theory of accomplice liability. In her taped confession, Nourn said that Barker was controlling, manipulative and possessive but he never hit her prior to the murder and only indirectly threatened her. Rptr.3d 447, 94 P.3d 574.) Rather, I read Brown as holding that because the evidence of domestic abuse there, which arguably did not amount to battered woman syndrome, was admissible under section 801, the court did not need to consider its admissibility under section 1107. Rptr.3d 447, 94 P.3d 574.)In any event whether Nourn was a battered woman at any point in time does not overcome what I perceive as the most serious defect in the majority's application of battered woman syndrome. The problems created by my colleagues' expansion of the battered woman syndrome magnify even further if battered woman syndrome is now to be a theory of duress. Importantly, this is not a case where defense counsel was ignorant of the battered woman defense. Rptr.2d 2, 29 P.3d 103.)Competent counsel should realistically examine the case, the evidence, and the issues and pursue those avenues of defense that to their best and reasonable professional judgment seem appropriate under the circumstances. Rather, when confronted with Barker's threat he was going to leave her, she agreed to do anything he wanted her to do, including helping to kill Stevens.When Stevens came out, he and Nourn left in his car and traveled eastbound on Highway 52. Barker flashed his lights and Nourn told Stevens to pull over. After their first date, Nourn and Barker began seeing each other daily. Barker was a con man who involved Nourn in a scam, obtaining (apparently fraudulently) a credit card in her stepfather's name. Nourn had to obtain Barker's permission to do anything and let him know before she did it. He had shown me a gun, and I had to get him a copy of my house keys so he could come by and check on me at night since my parents would be delivering newspapers [then].” Nourn told Dr. I wasn't sure if the baby was [Stevens's] or [Barker's] and [Barker] made me get rid of it. However, mere sympathy is not a defense to either first degree murder or arson. Barker, who was following them in his own car, pretended to be Nourn's brother. To more fully appreciate the problems created by my colleagues it is necessary to unwind the analysis and examine its parts. If a defendant is not guilty of aiding and abetting the commission of a predicate or target offense because of duress, he or she cannot be guilty of the crime of murder committed by a confederate on a theory that the murder was a natural and probable consequence of that predicate or target offense.” (Maj. 56-57.) Keeping in mind that we are dealing here with whether counsel was ineffective in 2003 for failing to raise the defense my colleagues now create, I have several observations. Making the question of pre-murder battering more difficult to isolate is the fact that neither the experts who have filed declarations in this case nor my colleagues seriously attempt to segregate evidence of battering alleged to have taken place before and at the time of the murder, which would be relevant here, from battering alleged to have taken place during the three years after the murder. I do not read Brown quite the same way, particularly since it expressly states: “We therefore do not reach the question whether the expert testimony here was also admissible under section 1107.” (Id. It appears my colleagues see the battered woman syndrome as any domestic abuse and in doing so confuse the purposes underlying sections 8. Section 1107, subdivision (b), permits admissibility of battered woman syndrome evidence only “if the proponent of the evidence establishes its relevancy.” Thus far, battered woman syndrome evidence has been deemed relevant in cases of self-defense (People v. Rptr.2d 142, 921 P.2d 1) and to explain a battered person's credibility and recantation (People v. My colleagues expressly decline to address whether the requirements of duress are met in this case. Nourn (May 13, 2004, D041961), 2004 WL 1067532 [nonpub. In light of our previous findings, I am constrained to ask whether the battered woman syndrome evidence is now inadmissible where, as here, there is no immediate threat of death to the battered woman, the battered woman substantially contributed to the creation of the emergency, the battered woman's act is disproportionate to the harm to be avoided, and there was an alternative to committing the murder. As his declaration explains, he examined and rejected use of the battered woman syndrome. The facts of this case do not present even the minimal requirements necessary for the defense and no case law existed which permitted use of the syndrome to explain why someone would join forces with an alleged batterer to murder an innocent person. Significantly, Nourn claimed that while she planned the crimes with Barker, she did not know Barker was actually going to kill Stevens.
Nourn liked Stevens and thought he was “real cute.” On the evening of December 22, Nourn went on a date with him. After leaving Stevens's apartment that night, Nourn returned to her home.