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Gage v. Borg

filed*fn*: July 2, 1991.

KENNETH EUGENE GAGE, PETITIONER-APPELLANT,
v.
ROBERT GLEN BORG, WARDEN, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of California; William W. Schwarzer, District Judge, Presiding; D.C. No. CV-89-1300-WWS.

Goodwin, Sneed, and Ferguson, Circuit Judges.

MEMORANDUM

This is a habeas corpus petition in which California state prisoner Kenneth Gage challenges pro se his conviction for first degree murder with special circumstances. Although Gage asserts a variety of constitutional errors, all of them revolve around the failure of the police to collect or preserve evidence. The district court denied Gage's petition on the grounds that the evidence would not have been exculpatory. We affirm the district court's ruling.*fn1

I.

FACTUAL BACKGROUND

Gage and his fiancee lived together in a house in Santa Clara. The murder victim, Dashelle Ailanjian, and her boyfriend at the time of the crime were living with them on a temporary basis. Ailanjian's boyfriend was a member of the Hell's Angels gang with a police record. Both were known to have weapons. Gage and his fiancee testified at trial that they were afraid of Ailanjian and her boyfriend.

Gage and his fiancee went to visit relatives in Illinois. While they were away, the police arrested Ailanjian's boyfriend for a parole violation. In addition, a number of valuable items were taken from the house. Ailanjian claimed that someone had broken into the house and stolen the property. Gage believed that Ailanjian and her boyfriend had stolen the items and put them in a public storage locker. Various evidence presented at trial suggests that Gage was correct. Gage also believes now that Ailanjian intended to blackmail him and his fiancee using sexually explicit photographs.

On the evening of the murder, Gage told his fiancee to leave the house because he wanted to talk to Ailanjian about the missing property. Gage confronted Ailanjian with his suspicions and the two of them got into a heated argument. Gage admits that he hit her with a hammer a number of times. The evidence shows that the two of them struggled around the living room, down a hall and into the kitchen where Ailanjian fell to the floor.

Gage's fiancee returned to find Ailanjian bleeding on the floor of the kitchen with Gage standing above her holding a gun and a hammer. Ailanjian was at least conscious enough to ask for help. Gage's fiancee retreated to the bedroom. Gage admits that he "pointed the gun at Ailanjian and threatened her, telling her to tell the truth." Petition for Writ of Habeas Corpus, Statement of Facts at 29, Gage v. Borg, No. C-89-1300 (N.D. Cal. 1989).*fn2

From the bedroom, Gage's fiancee heard shots fired in the kitchen. Gage came into the bedroom shortly thereafter, convinced that Ailanjian was dead. He was wrong. While Gage and his fiancee were talking in the bedroom, Ailanjian managed to leave the house. A neighbor saw Gage run after her and drag her back into the house struggling and screaming. Gage then shot Ailanjian in the head at point blank range. When the police arrived, Gage gave his consent to a search and tape recorded a confession, which was played at trial. He told the police about the storage locker that he believed contained his stolen property. The police did not search the locker until after Ailanjian's boyfriend had emptied it.

The coroner testified at the preliminary hearing that Ailanjian's body had five gunshots wounds, three to the head, one to the upper arm, and one to the abdomen. She also had two broken ribs, although there were no surface wounds above the broken ribs. There were numerous deep wounds to the head that appeared to have been made by the hammer. Her body also had numerous scratches, bruises, and lacerations including ones to the face, head, chest, shoulders, arms, legs, hands, and the base of the spine. Her death was caused by a combination of the gunshot wounds to the head and the multiple blows to the head.

Gage claims that the confrontation was not a cold blooded attempt to beat information out of Ailanjian but rather a heated argument that exploded into violence as the two of them struggled over various weapons in the house. In particular, he claims that he did not hit her with the hammer until she reached for his jacket that contained a gun. It was this gun that Gage eventually used to kill her. He also claims that he stopped hitting her once she let go of the jacket.

The jury convicted Gage of first degree murder with the special circumstance of torture. At the penalty phase, the jury sentenced Gage to life without parole rather than the death penalty. Gage appealed his conviction to the California Court of Appeal and the California Supreme Court as well as bringing a state habeas petition. ...


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