# Turner v. Wong

> District Court, E.D. California · August 4, 2009 · 641 F. Supp. 2d 1010

URL: https://www.frixlaw.com/law-library/cases/2474522

## Case

- **Full name:** Thaddaeus Louis TURNER, Petitioner, v. Robert K. WONG, as Acting Warden of San Quentin State Prison, Respondent
- **Court:** District Court, E.D. California
- **Decided:** August 4, 2009
- **Citations:** 641 F. Supp. 2d 1010; 2009 U.S. Dist. LEXIS 68380; 2009 WL 2394152
- **Precedential status:** Published
- **Opinion:** Opinion by O'Neill
- **Judges:** Lawrence J. O'Neill
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2474522

## How later opinions describe it (automated extraction)

- holding that assessing prejudice requires re-evaluating the prosecution evidence against the totality of available defense evidence
- holding that where individual deficiencies may not by themselves meet the Strickland prejudice standard, they may when considered cumulatively constitute sufficient prejudice to grant the writ

## Opinion text

MEMORANDUM DECISION AND ORDER FOLLOWING EVIDENTIARY HEARING GRANTING PETITION FOR WRIT OF HABEAS CORPUS
LAWRENCE J. O’NEILL, District Judge.
Table of Contents
I. Factual Background and Trial Proceedings...................................1014
II. Post-Trial Procedural History..............................................1016
III. Standard of Review........................................................1017
IV. Alleged Ineffective Assistance of Counsel During Penalty Proceedings (Claim 5).....................................................................1018
A. Summary of the Relevant Facts.........................................1018
1. Guilt Phase Trial Proceedings.......................................1018
*1013
a. Mr. Hallford’s Guilt Phase Opening Statement....................1018
b. Mr. Ellery’s Guilt Phase Opening Statement......................1019
c. Guilt Phase Testimony of Gregory Mayo..........................1019
d. Guilt Phase Testimony of Augusti Albritton.......................1020
e. Guilt Phase Testimony of Detective Craig Wright..................1020
f. Guilt Phase Testimony of Detective Henry Strength...............1021
g. Guilt Phase Testimony of Detective John Harris...................1021
h. Guilt Phase Testimony of Pathologist Malcolm Murdoch, M.D........1022
i. Guilt Phase Testimony of Rita Dienst............................1022
j. Guilt Phase Testimony of Turner................................1022
k. Guilt Phase Testimony of Bartender Jay Bradshaw................1026
l.
Guilt Phase Testimony of Phillip M. Hamm, Jr., Ph.D...............1026
m. Guilt Phase Testimony of Lee Stewart Coleman, M.D...............1029
n. Mr. Hallford’s Guilt Phase Summation ...........................1029
o. Mr. Ellery’s Guilt Phase Summation.............................1030
p. Mr. Hallford’s Guilt Phase Rebuttal..............................1031
q. Guilt Phase Deliberations.......................................1031
2. Penalty Phase Trial Proceedings.....................................1031
a. Penalty Phase Testimony of Dr. Murdoch.........................1031
b. Penalty Phase Testimony of Detective Strength...................1032
c. Penalty Phase Testimony of Ruth Turner.........................1032
d. Penalty Phase Testimony of Lisa Haynes.........................1032
e. Penalty Phase Testimony of Elijah Barber........................1032
f. Penalty Phase Testimony of Lewis Coleman ......................1033
g. Penalty Phase Testimony of Kathryn Carter......................1033
h. Penalty Phase Jury Instructions.................................1033
i. Mr. Hallford’s Penalty Phase Summation.........................1033
j. Mr. Ellery’s Penalty Phase Summation...........................1034
k. Mr. Hallford’s Penalty Phase Rebuttal...........................1035
l.
Penalty Phase Deliberations....................................1035
3. Turner’s motion for modification of the death verdict...................1035
4. Evidence Presented at the Evidentiary Hearing.......................1036
a. Turner Family and Friend Witnesses............................1037
(1) Evelyn Turner............................................1037
(2) Elizabeth Turner .........................................1041
(3) Oweida Doxey............................................1044
(4) Ruth Evelyn Turner.......................................1046
(5) Yvonne Turner Haynes....................................1052
(6) Thaddaeus Jefferson Turner................................1053
(7) Pam Butler ..............................................1053
(8) Kathryn Carter Senegal-Priee..............................1054
(9) Lewis Coleman...........................................1056
(10) Sandra Goodman..........................................1057
(11) March 31,1980 Probation Report ...........................1057
b. School and Academic Records...................................1058
c. Witnesses Acquainted with Mr. Savage...........................1058
(1) Betty Means Tavares......................................1058
(2) Joyce Slaton..............................................1059
d. Investigating Officers..........................................1060
(1) Detective Strength........................................1060
(2) Detective Jill Mayer.......................................1061
e. Expert Witnesses .............................................1061
(1) Trevor D. Glenn, M.D......................................1061
(2) Ernest D. Lykissa, Ph.D...................................1062
(3) Dean Warden ............................................1062
(4) Stephen M. Pittel, Ph.D....................................1062
(5) Phillip M. Hamm Jr., Ph.D.................................1064
(6) Howard B. Terrell, M.D....................................1070
(7) Reese T. Jones, M.D.......................................1079
f. Trial Defense Team Witnesses..................................1083
*1014
(1) John W. Ellery...........................................1083
(2) William Ray Brown .......................................1089
(3) Kenneth Roberts..........................................1091
g.
State Appellate and Post-Conviction Attorney Witnesses...........1091
(1) Dennis A. Fischer.........................................1091
(2) John M. Bishop...........................................1091
(3) Douglas W. Otto..........................................1091
h. (Former) District Attorney Patrick Hallford......................1092
B. Analysis .............................................................1093
1. Performance......................................................1093
a. Childhood Abuse and Dysfunctional Family Dynamics..............1094
b. Borderline Intellectual Capabilities..............................1102
c. Drug Abuse and Drug Abuse History............................1103
d. Mr. Savage’s Sexual Practices...................................1105
2. Prejudice.........................................................1108
V. Order....................................................................1118
Appendix......................................................................1118
I. Factual Background and Trial Proceedings
This case involves the stabbing murder of Roy Savage on April 14, 1984. Mr. Savage was stabbed 40 to 50 times in a gruesomely bloody attack at his Merced home. Numerous household items, including a television, together with Mr. Savage’s late model Cadillac, were missing from the house when sheriffs deputies commenced their investigation. In addition, two telephone cords in the house had been cut.
1
Petitioner Thaddaeus L. Turner (“Turner”), 22 years old at the time,
2
admitted the act of stabbing Mr. Savage, taking a television from Mr. Savage’s home, and driving away in Mr. Savage’s car. He denied harboring the intent to steal the television or car prior to the fatal attack, and denied cutting telephone cords or taking any other possessions. He claimed the stabbing followed Mr. Savage’s unwanted sexual advances. When Turner was apprehended by a California Highway Patrol officer in Fresno, two days after Mr. Savage was killed (April 16, 1984), he was driving Mr. Savage’s car. The missing television set was in the trunk and Mr. Savage’s wallet was on the console of the car. None of the other household items said to have been missing from Mr. Savage’s house was recovered.
Besides claiming to have been sexually attacked by Mr. Savage, Turner maintains he was an habitual PCP and marijuana user, and that he used both drugs, plus methamphetamine and alcohol, on the day of the offense. In offers of proof supporting his motion for an evidentiary hearing, and at the evidentiary hearing the Court ultimately conducted, he also presented considerable evidence of his miserable and sad childhood during which he was persistently physically abused and verbally ridiculed by his alcoholic father, while virtually neglected by his depressed, despondent mother. From the time Turner was in grade school, his father whipped him with a leather razor strap kept in the garage,
3
“thumped” him on all parts of his head,
4
*1015
and socked him in the stomach with karate punches. Turner’s crying during these discipline sessions did not induce his father to relent, but to “discipline” more vigorously. The parents, who fought bitterly, violently, and physically with one another eventually separated and terminated their marriage, but even after the separation, the father continued thumping Turner until he was in junior high school.
Turner suffered two prior felony convictions, for robbery and for receiving stolen property, both of which he admitted. (Only the October 6, 1982 conviction for receiving stolen property was charged and admitted as an enhancement to the indictment. RT-5: 998-99.) His trial attorney was Merced County Public Defender John Ellery. The prosecutor was Merced District Attorney Patrick Hallford. The trial evidence gave conflicting portraits of Mr. Savage. On one hand, he was a highly respected administrator and mathematics instructor at Merced Community College, who also served as director of the College Educational Opportunity Programs and Services. In that capacity, he helped many young people pursue an education and obtain jobs. He also owned several rental houses. Accordingly, it was not unusual for him to hire young people to help with landscaping and clean up tasks for these rental houses. On the other hand, as Mr. Ellery tried to bring out, he engaged in homosexual activities and cultivated homosexual relations. This inference was supported by testimony that Mr. Savage sometimes went to San Francisco for week-end stays and did not talk about what he did. Mr. Ellery also called a former bartender who worked at a known “gay” bar in Fresno. The bartender informed police that Mr. Savage was a frequent customer at the bar. Turner testified that he met Mr. Savage at a bus stop just outside this gay bar while he (Turner) was on his way home from his construction job. Mr. Savage offered Turner work performing landscaping tasks on his (Mr. Savage’s) house (residence). Turner accepted and Mr. Savage arranged to drive to Fresno to pick Turner up and return to Merced, a distance of approximately 60 miles, each way, the ensuing weekend. Also pertinent to the case is the difference in relative size between Mr. Savage, a large man said to be six feet, three inches, weighing between 200 and 300 pounds, and Turner, who was 5 feet 9 inches tall and weighed 140 to 150 pounds.
The facts leading up to the fatal stabbing of Mr. Savage were provided during guilt phase proceedings by Turner’s testimony. Defense retained psychologist, Phillip M. Hamm, Jr., Ph.D., also testified about the story Turner recounted to him for purposes of revealing Turner’s mental state at the time of the killing. Mr. Hall-ford countered by painting a picture of Turner as an opportunistic, cold-blooded killer motivated by the desire to steal from his victim. While Mr. Hallford argued Turner’s story of Mr. Savage’s unwanted sexual overtures was simply unbelievable, he maintained that to the extent Mr. Savage did express a sexual interest, Turner exploited the situation to gain access to Mr. Savage’s home and cultivate Mr. Savage’s trust. Under the prosecution theory, Turner formulated a premeditated plan to kill Mr. Savage so he could realize his goal of acquiring Mr. Savage’s property.
Trial commenced on November 6, 1984, with jury selection complete by November 13, 1984. Opening statements and presentation of evidence at the guilt phase proceeded on November 14, 1984. Both sides
*1016
rested on November 20, 1984, with jury-deliberations commencing the same day.
5
Deliberations continued for 35 minutes on Wednesday, November 21, 1984, until the jurors notified the trial court they had reached a verdict. They returned a guilty verdict on the first degree murder change and found true the robbery-murder special circumstances. Although Turner also was charged with a second felony count of robbery, the jurors failed to complete the verdict form or return a verdict on this charge until the following Tuesday, November 27, 1984. RT-8: 1712-15; 1758-67.
Penalty proceedings commenced and were completed on the same day (November 27, 1984). For the People, Mr. Hall-ford called the pathologist who conducted the autopsy on Mr. Savage to describe the depth of the knife wounds Turner inflicted as part of the jury’s consideration of the circumstances of the crime sentencing factor. Mr. Ellery called one of the investigating detectives to bring a sense of uncertainty to bear on the jurors that Turner in fact harbored the requisite intent to steal prior to the fatal stabbing because he didn’t take the television remote control device for the stolen television. He also called Turner’s mother, a half-sister, a family friend, a cousin, and a “job developer” to describe Turner’s caring, kind, nonviolent nature, and reliability as an employee.
II. Post-Trial Procedural History
Following the death verdict on November 27, 1984, Turner moved the trial court for modification of that verdict, which was heard and denied on December 21, 1984. His direct appeal affirming the conviction and death sentence was filed April 26, 1990.
People v. Turner,
50 Cal.3d 668 , 268 Cal.Rptr. 706 , 789 P.2d 887 (1990). He commenced this federal proceeding on April 1, 1991, by filing a pro se petition, requesting a stay of execution, and applying for appointment of counsel. Following the appointment of federal counsel, he filed an amended petition containing a number of unexhausted claims on March 8, 1993. The Court ordered Turner to exhaust his state remedies by order entered May 25, 1993. His subsequently filed state petition for habeas corpus was denied on March 25, 1996. He thereafter filed his amended federal petition on April 29, 1996. This is the operative petition in the case (hereafter the “Petition”).
In 1996 and 1997, the Court addressed the arguments of Respondent Robert K. Wong, as Acting Warden of San Quentin State Prison (the ‘Warden”),
6
that a number of claims in the Petition were procedurally defaulted. Following a series of orders on the subject, the Court issued an order on June 27, 1997, denying three claims on the merits and dismissing eleven claims as procedurally barred.
Turner v. Calderon,
970 F.Supp. 781 (E.D.Cal.1997). On September 23, 1997, following the issuance of
Fields v. Calderon,
125 F.3d 757, 760 (9th Cir.1997), in which the Ninth Circuit held that California state procedural defaults of the kind at issue in Turner’s case were inadequate to bar federal review, the Court denied on the merits all fourteen of the previously resolved claims.
After further merits briefing of the Petition, on April 27, 1999, the Court issued a Memorandum Decision and Order denying Turner’s request for an evidentiary
*1017
hearing as to four claims, including Claim 5, alleging ineffective assistance of counsel at Turner’s penalty phase. The April 27, 1999 Order additionally denied each of the four claims on the merits. On May 18, 1999, the Court denied the remaining, record-based claims on the merits and judgment was issued forthwith. Turner appealed to the United States Court of Appeals for the Ninth Circuit and the appellate court reversed this Court with respect to the denial of an evidentiary hearing as to Claim 5.
Turner v. Calderon,
281 F.3d 851 (9th Cir.2002). Following the remand, this Court, by the Honorable Robert E. Coyle, conducted an evidentiary hearing as to Claim 5 on July 22, 23, 24, 25, and 29, 2003, focusing on the limited issues of whether Mr. Ellery had a reasonable strategy justifying
not
presenting the mitigation evidence Turner identified as available at the time of trial and whether that evidence would have been compelling enough to have altered the outcome of the penalty verdict.
III. Standard of Review
Under controlling United States Supreme Court precedent, it is the filing of “an application for habeas relief seeking adjudication on the merits of petitioner’s claims” that triggers applicability of the Anti-terrorism and Effective Death Penalty Act of April 24, 1996 (“AEDPA”).
Woodford v. Garceau,
538 U.S. 202, 207 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003). Since Turner’s March 8, 1993 petition, which constitutes a substantive pleading seeking adjudication on the merits, was filed before the enactment of AEDPA, preAEDPA law, under former 28 U.S.C. § 2254 , is controlling.
Id.
Former 28 U.S.C. § 2254 (d) directs that
written
state findings are presumed correct:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceedings; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole con-
*1018
eludes that such factual determination is not fairly supported by the record.
Both mixed questions of law and fact and pure questions of law are reviewed
de novo. See Thompson v. Borg,
74 F.3d 1571, 1573 (9th Cir.1996). Under preAEDPA law, a claim alleging ineffective assistance of counsel is considered a mixed question of law and fact, subject to
de novo
review.
Correll v. Ryan,
539 F.3d 938, 942 (9th Cir.2008).
IY. Alleged Ineffective Assistance of Counsel During Penalty Proceedings (Claim 5)
In reaching the ultimate determination as to Mr. Ellery’s alleged constitutionally incompetent representation, the Court must review the evidence adduced at the evidentiary hearing as well as pertinent trial evidence (guilt and penalty), and the argument of counsel (guilt and penalty) to assess the relative impact between what was presented during Turner’s penalty proceedings and what Turner alleges could have been presented. Evidence submitted by the Warden also must be factored into the mix.
See Wiggins v. Smith,
539 U.S. 510, 534 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (holding that assessing prejudice requires re-evaluating the prosecution evidence against the totality of available defense evidence).
A. Summary of the Relevant Facts
Although the Court previously has set out a comprehensive summary of trial proceedings and post-conviction declarations presented on federal habeas in prior orders,
see
June 27, 1997 Order at 970 F.Supp. pp. 781-88; April 27, 1999 Order at pp. 8-36, selected trial proceedings (including some not previously summarized) are summarized (and in some cases re-summarized) to give context to the evidentiary hearing testimony and relevant documentary evidence.
1. Guilt Phase Trial Proceedings
The relevant guilt phase trial proceedings include Mr. Ellery’s opening and closing arguments, Mr. Hallford’s opening, closing, and rebuttal arguments, selected guilt phase testimony, and guilt phase deliberations. Guilt phase proceedings commenced with Mr. Hallford’s opening statement on Wednesday, November 14, 1984, continuing through November 15, 16, and 20, 1984. Guilt phase deliberations commenced at 3:04 p.m. on Tuesday, November 20, 1984, and were complete the next day on Wednesday, November 21, 1984 at 10:34 a.m. RT-8: 1704,1712.
a. Mr. Hallford’s Guilt Phase Opening Statement
Mr. Hallford identified Mr. Savage’s professional responsibilities at Merced College and the last two people to have seen him alive on Saturday April 14, 1984, in the company of Turner. RT-5: 999-1000. He described what Greg Mayo observed when he came to Mr. Savage’s home on the following Monday. The body was “bloody,” the scene at the house was “gory.” There was blood on the couch, the ceiling, the curtains, the sliding glass doors, and the enclosed back porch all the way to the back door.
Id.:
1001-02. There was blood on the back screen door and there were drag marks where the body had been dragged back away from the door. The body was covered with towels. Sheriffs investigators also observed blood “going down the street, indicating that the Defendant, after he had done this gory deed, had dropped blood when he had left.” Mr. Savage’s Cadillac, television, a stereo and some other items were missing from the home. When Turner was arrested, he was driving the missing Cadillac.
Id.:
1002. The television was in the car and both the car and the television had blood on them which
*1019
matched Mr. Savage’s blood. The buck knife in Turner’s possession when he was arrested also had blood on it which matched Mr. Savage’s blood type. Turner’s shoes matched a bloody print left in the house. Mr. Hallford explained that two telephone cords in the house had been cut, and neither was bloody, “indicating the Defendant had planned this violence, indicating the premeditation.”
Id.:
1003.
b. Mr. Ellery’s Guilt Phase Opening Statement
After successfully resisting a prosecution
in limine
motion to preclude evidence of Mr. Savage’s homosexuality, Mr. Ellery explained the circumstances of the initial interactions between Mr. Savage and Turner in terms that would suggest Mr. Savage’s sexual interest in Turner. Mr. Savage initiated the contact with Turner in front of a “homosexual” bar in Fresno about a week previous to the homicide. He placed several calls to Turner “with the stated purpose of inviting the Defendant to come to Merced and work in Mr. Savage’s yard.” RT-5: 1004-05. In order to accomplish this, Mr. Savage had to make a one hour drive from Merced to Fresno to collect Turner and then drive back again for another hour. The work to be done in the yard was overwhelming and Turner made a mild protest. “Mr. Savage was not really terribly concerned about getting work done.”
Id.:
1005. After less than an hour in the yard, Mr. Savage and Turner spent the day “going to various friends of Mr. Savage, or seeing people that Mr. Savage knew ... they arranged a barter system as to how the Defendant was to be paid for his labors____ They spent the good part of the day also admiring Mr. Savage’s home, influential area, listening to the sound machine — the sound equipment, the stereo equipment, maybe the television.”
Id.:
1005-06.
After
carrying out the barter agreement (purchasing clothes for Turner) they returned to Mr. Savage’s home rather than driving back to Fresno to take Turner home. “[T]he evidence will show that some time during the evening the Defendant did indeed kill Mr. Savage.”
Id.:
1006. As to whether the killing was or was not a crime, the jurors were told to question why Mr. Savage did all these things. Also, Mr. Ellery asked the jury to take note of the fact that Mr. Savage’s head was placed upon a pillow; his “body was covered with a variety of pillow cases and towels and things like that,” and that there may have been an attempt to clean some of the blood off, and that there was blood “spread throughout may portions of the house.” He concluded by suggesting these erratic acts had a bearing on “the mental elements of this event.”
Id.:
1006-07.
c. Guilt Phase Testimony of Gregory Mayo
Greg Mayo, Mr. Savage’s second cousin, discovered the bloody crime scene in the mid-afternoon on Monday, April 16, 1984. He came to the house to help Mr. Savage perform maintenance work on his rental homes, as he often did. Occasionally Mr. Savage also hired students to perform maintenance work. RT-5: 1009. Mr. Mayo had arranged to stop by Mr. Savage’s house on this day (April 16, 1984) the preceding Friday, April 13, 1984, when he and Mr. Savage ate dinner together.
Id.:
1011, 1039-40. He approached the house from the backyard and observed that the screen door to the enclosed patio was swung wide open and full of blood.
Id.:
1012. On cross examination he further described the screen door as having been cut.
Id.:
1047. Upon discovery of the crime scene, rather than use a neighbor’s telephone, Mr. Mayo drove across town and called authorities from a friend’s house.
Id.:
1013. This was after he tried to use the telephone in Mr. Savage’s family room, but found it was dead.
Id.:
1049.
*1020
He identified the items missing from Mr. Savage’s house, including a television set removed from the upstairs master bedroom, a full-size stereo receiver, two 10-by-12-by-25 inch speakers, a tape cassette, miniature speakers, a second stereo system, two glass end tables with two foot-high bases, several statutes in the one to one and a half foot high range, and most of the clothes from Mr. Savage’s closet, including three full suits Mr. Mayo specifically described.
Id.:
1014-16, 1065-70, 1079. When Mr. Mayo visited Mr. Savage on Friday, the closet was really compacted with suits, but, “[a]lmost empty” when he came to inventory missing items with authorities.
Id.:
1070. Mr. Mayo also initially reported that two rings and a watch Mr. Savage customarily wore were missing.
Id.:
1051.
Mr. Mayo was aware that sometimes Mr. Savage went out of town on weekends. He understood that Mr. Savage went to the Bay Area on these occasions. Mr. Savage did not explain exactly where he was going, who he was visiting, or what he was doing during these trips. This was in contrast to his trips to visit family members, when Mr. Savage did specifically tell Mr. Mayo where he was going and who he was visiting.
Id.:
1045-47. Mr. Mayo testified that his cousin was approximately six feet, three inches tall and weighed approximately 200 pounds.
7
Id.:
1071.
At some point when Mr. Mayo was in the house after the homicide, he found a telephone index in the family room, which he turned over to investigating officers. RT-7: 1458-59.
d. Guilt Phase Testimony of Augusti Albritton
In April of 1984, Mr. Albritton was the Assistant Director of Educational Opportunity Programs and Services at Merced Community College. RT-5: 1087. Roy Savage was the director. Mr. Savage also taught a math class and was a counselor. Mr. Albritton and Mr. Savage were friends. Mr. Savage was, “Very, very well thought of.”
Id.:
1088. Mr. Savage came to Mr. Albritton’s house on Saturday, April 14, 1984 to exchange Mr. Albritton’s truck, which Mr. Savage had borrowed, for his (Mr. Savage’s) Cadillac, which Mr. Albritton was using while Mr. Savage had the truck. Mr. Savage often borrowed Mr. Albritton’s truck to haul materials used in his (Mr. Savage’s) rentals.
Id.:
1091. Turner was with Mr. Savage during this visit/vehicle exchange. Mr. Albritton believed Turner was one of the many young people Mr. Savage was helping with getting an education. He described Mr. Savage as a man who loved to eat and suffered from a “weight problem.”
Id.:
1092.
e. Guilt Phase Testimony of Detective Craig Wright
Merced County Sheriff Detective Wright described the blood stains and splatters throughout Mr. Savage’s house onto the covered patio to the backyard, all captured on a video tape that was introduced in evidence. RT-5: 1103, 1106. Everything was splattered with blood. There was blood in the front lobby (foyer) and blood on the front door knob.
Id.:
1106. Blood stains were seen on the furniture, walls, drapes, floor, house plants, doors, and on the linens covering the Mr. Savage’s body.
Id.:
1162-1165. Detective Wright described the scene as the pathologist, Dr. Malcolm Murdoch, and various deputies inspected the body, front and back. There were “large gaping open wounds to the check [sic] and neck area” as well as to the chest.
Id.:
1166-1167. His head was resting partially on a pillow. RT-6: 1210-11. The part of his head resting on this
*1021
pillow did not appear to have been bleeding.
Id.:
1221.
The canvass of the living room indicated that some furniture, which made indentations in the carpet, had been recently moved. RT-5: 1168-1169. Mr. Savage’s body was lying in the covered patio “under some towels.”
Id.:
1107. A cabinet on the patio appeared to have been forced open by bending the door. There was a pool of blood below the door. The blood on the floor appeared to have drag marks.
Id.:
1109. Mr. Savage’s body appeared to have been dragged over the carpet remnants on the patio floor. RT-6: 1287.
Detective Wright observed three telephones in the house, one in the family room downstairs, one in the master bedroom upstairs, and one in the kitchen downstairs. The cords on the family room and master bedroom telephones had been cut. RT-6: 1185-86. Later in the prosecution case, Detective Wright testified that two vials of blood were taken from Turner on April 20, 1984. RT-6: 1204. Later still, Mr. Savage’s rings and watch were found under carpet remnants that were beneath his body.
Id.:
1283.
f. Guilt Phase Testimony of Detective Henry Strength
Lead Detective Henry Strength testified that the kitchen telephone cord had not been cut. Officers realized the kitchen telephone existed when it rang during the investigation. RT-6: 1278. He observed a pillow partially under Mr. Savage’s head. The pillow did not have blood on it; it was not under a part of Mr. Savage’s head that had been bleeding.
Id.:
1279. Mr. Savage’s rings and watch were found under Mr. Savage’s body when the investigation began.
Id.:
1281. On the patio, the blood stains appeared to have been wiped up or partially wiped up. He testified to having observed drag marks which were partially wiped up.
Id.:
1293.
After Turner’s arrest, when Detective Strength took Turner’s clothes, he observed no defense wounds on his body. He did observe “some small scratches” on one of Turner’s arms.
Id.:
1281.
8
Regarding the recovery of the items from Mr. Savage’s house other than the Cadillac and the television, Detective Strength testified that a search of Turner’s house came up empty.
Id.:
1292. Detective Strength also seized items from the bar at Mr. Savage’s house from which finger prints other than Mr. Savage’s and Turner’s were discovered.
Id.:
1307, 1309; RT-7: 1461. In addition, he authenticated Mr. Savage’s telephone index which Mr. Mayo turned over to authorities so it could be admitted into evidence. RT-6: 1303.
At the very end of his rebuttal case, Mr. Hallford elicited from Detective Strength the substance of Turner’s statements to the Merced authorities (Detective Strength and Detective Jill Mayer). -He told the detectives he did not know Roy Savage and that he had not been to Merced. RT-8: 1624. Turner further stated he couldn’t remember where he obtained Mr. Savage’s Cadillac and he didn’t know where he was going when he initially was stopped in Fresno by a California Highway Patrol officer.
Id.:
1625.
g. Guilt Phase Testimony of Detective John Harris
After the family of Mr. Savage changed the locks on the door of the house, they found and reported to Detective Harris a broken key found in one of the doors. RT-7: 1467. This report, however, was
*1022
made a week or more after the investigation.
Id.:
1468.
h.Guilt Phase Testimony of Pathologist Malcolm Murdoch, M.D.
Dr. Murdoch conducted the autopsy on Mr. Savage’s body. He also examined Mr. Savage’s body at the scene. RT-5: 1130. Mr. Savage’s body was lying face down on the back patio. The body was clothed in a shirt and Levis which were closed and belted.
Id.:
1131-32. Multiple stab wounds were inflicted on his body, including defensive wounds on his hands, cuts to his arms, back, chest, and face.
Id.:
1132-34. Some cuts were slashing wounds and some were penetrating wounds.
Id.:
1138. Dr. Murdoch testified he counted a total of 44 wounds, but because two of those were V-shaped, which may been caused by two separate stabs (each), there may have been 46 wounds. There was a deep slashing wound down across the jaw, a single wound on the left neck, were nine wounds on the anterior portion of the chest, four wounds on the abdomen, three on the anterior leg, seven on the left arm, one superficial wound on the left hand, a large deep cut in the right thumb, almost removing it, a deep wound in the palm of left hand, a deep laceration on the right middle finder, three in the right hand, one on the left hand, four on the right arm, and seven on the back, all below the shoulder blades, for a total of 44 stab wounds, 46 if the V-shaped wounds counted as two rather than one.
Id.:
1140-42. At the culmination of cross examination, he clarified that his earlier testimony about the number of wounds overlooked four additional wounds, two on each of Mr. Savage’s sides.
Id.:
1150-51. This brought the total number of stab wounds to 50 (counting the two V-shaped wounds as two wounds each).
The autopsy revealed semen at the tip of Mr. Savage’s penis indicating he ejaculated either shortly before he was killed or at the time he died. Dr. Murdoch explained that ejaculation at the time of death could occur.
Id.:
1146. On cross examination, Mr. Ellery elicited that the occurrence of semen in this case could have been consistent with sexual activity. He also elicited that Mr. Savage’s sphincter was looser than normal.
Id.:
1147.
9
Dr. Murdoch identified a stab wound to the upper abdomen, which passed through the diaphragm and cut a hole in the right ventricle of the heart as being the cause of death.
Id.:
1148 (cross examination), 1155 (re-direct examination). Mr. Ellery also elicited that four of the wounds to Mr. Savage’s back went through the chest wall into the lungs and that these wounds likely preceded the wounds to the lower abdomen, because chest wall wounds bled more.
Id.:
1148-49. Finally, Mr. Hallford clarified from Dr. Murdoch that Mr. Savage would have able to move after having been stabbed, even with the fatal blow that cut into his heart: “None of these, none of these stab wounds would prevent him from moving.”
Id.:
1155-56.
i. Guilt Phase Testimony of Rita Dienst
Ms. Dienst was the office manager of Cross Construction, where Turner worked. She testified he didn’t have transportation, so he took the bus to work. RT-7: 1361. Turner had a good reputation at work and was well liked. He worked on Monday, the day of his arrest.
Id.:
1362.
j. Guilt Phase Testimony of Turner
Turner testified at the guilt phase proceedings during the defense case in chief.
*1023
At the time of the crime, he lived with his mother and younger teenage sister, Oweida, in Fresno. Mr. Ellery elicited from Turner that he was incarcerated from June 1982 through September 1983 for receiving stolen property. Prior to that, Turner spent time at the California Youth Authority (hereafter “CYA”) for robbery. He explained that both convictions were obtained without trial on his pleas of guilty. RT-6: 1313-14. No questions were asked to explain Turner’s limited role in the prior robbery conviction.
10
Upon his release from prison in September 1983, he began working for Cross Construction, starting out as a carpenter helper and moving up to a laborer.
Id.:
1315. Turner had no car and usually rode to work with a friend or used the bus.
11
Id.:
1316. Turner met Mr. Savage at a bus stop in Fresno near a homosexual bar.
Id.:
1317. Mr. Savage introduced himself to Turner and offered Turner a ride. Turner accepted and Mr. Savage drove Turner to his (Turner’s) bank so he could cash his paycheck.
Id.:
1319-20. Mr. Savage also offered Turner a job working around his (Mr. Savage’s) house.
Id.:
1322. The compensation was to be $20 to $30 depending upon how much work Turner completed. RT-7: 1411 (cross examination). Turner explained that he didn’t have a car, so Mr. Savage offered to come to Fresno to collect him. RT-6: 1323-25. Mr. Savage later called Turner and made arrangements to pick him up near his home in Fresno.
Id.:
1329-30. Turner had never been to Merced before and was not familiar with the area.
Id.:
1331-32. Turner let Mr. Savage know he used drugs, notably, “sherm” (meaning marijuana and PCP) and speed. Turner used both drugs the morning Mr. Savage collected him.
Id.:
1334. During cross examination, he clarified that he smoked half a sherm before Mr. Savage came to collect him in Fresno. RT-7: 1410. Upon arrival in Merced, Turner started working in the backyard. Mr. Savage interrupted him and offered him some yard shoes and a work shirt. Turner went upstairs to Mr. Savage’s bedroom to obtain these items. RT-6: 1335-38. Turner found that the work needed in the yards was overwhelming. He didn’t work long in the backyard before he walked around to the front yard to do something else.
Id.:
1338.
See also
RT-7: 1413 (Turner figured there was too much work for him to complete alone.) He took a break while working and smoked some PCP. There was a lot to do in the front yard as well. RT-6: 1339. On cross examination, he clarified that at this point he smoked the other half of the sherm he started before Mr. Savage came to pick him up. RT-7: 1415. Mr. Savage offered Turner some orange juice. After that, Turner did no more yard work. Mr. Savage didn’t seem to mind. Turner told him there was too much work for one person to complete. RT-6: 1340-41. Turner and Mr. Savage talked about Turner — his drug use and his prison time. Then, at about noon time, Mr. Savage decided to go to Gottschalks (department store) to take a television in for repairs.
Id.:
1342-46. After that, they drove to the home of a friend of Mr. Savage, Mr. Augusti Albritton. Mr. Savage talked with Mrs. Albritton and then Mr. Albritton for
*1024
about 30 minutes. While there, Mr. Savage traded Mr. Albritton’s pick up truck (which Mr. Savage had borrowed) for his (Mr. Savage’s) Cadillac.
Id.:
1346-50. Mr. Savage and Turner stopped at a Burger King, where Mr. Savage purchased Turner some lunch, and then returned to Mr. Savage’s house.
Id.:
1350-51. They listened to music and Mr. Savage gave Turner a complete tour of his spacious house.
Id.:
1351-56. Prior to that, Turner replaced all the garden tools he had taken out of the garage and cleaned up the work he had done. RT-7: 1364-65. While they were talking, they consumed a fifth of brandy. Turner consumed three or four glasses.
Id.:
1366. They discussed compensation for Turner’s work. Mr. Savage told him he would buy Turner a pair of pants and shirt at Gottschalks rather than given him money so he (Turner) wouldn’t use the money to purchase drugs.
Id.:
1367. At Gottschalks, Mr. Savage conversed with a woman customer, who had two little girls with her, as well as with the sales clerk.
12
Id.:
1370-73.
After completing the purchase, Mr. Savage and Turner returned to Mr. Savage’s home. Instead of driving to Fresno, Mr. Savage then placed a telephone call in the kitchen and prepared dinner for himself. Turner declined dinner.
Id.:
1373, 1375. At one point, the telephone rang, but Mr. Savage, who was right next to the ringing kitchen telephone did not answer it.
Id.:
1376. After Mr. Savage finished eating, he went upstairs and Turner waited to go back to Fresno. Mr. Savage came downstairs in a T-shirt and shorts,
13
put his hand on Turner’s shoulder and said, ‘“Let’s go to bed.’”
Id.:
1378. Turner pushed him. Then Mr. Savage “came at” Turner, chased him (Turner) around the house, and hit him with something wooden on the back of the head. Turner kicked Mr. Savage and ran out of the house.
Id.:
1378-79.
From this point, Turner walked to a local store, smoking another “stick” of PCP on the way, and once at the store, purchased a pack of cigarettes.
Id.:
1379-81. He clarified on cross examination that he smoked the entire sherm.
Id.:
1416. After making his purchase of cigarettes, Turner proceeded to light one when he saw Mr. Savage driving up in his car. Mr. Savage apologized; Turner asked to go back to Mr. Savage’s house to retrieve his belongings and then go home. Mr. Savage agreed.
Id.:
1381. By this time, Turner was pretty high.
Id.:
1416 (cross examination). When Turner and Mr. Savage arrived back at Mr. Savage’s house, Mr. Savage went upstairs. Turner waited downstairs. When Mr. Savage came down, he asked Turner if he wanted a drink and if he would tell anyone about the sexual proposition.
14
Id.:
1382. Turner responded he was going to tell somebody: “ You brung me down here, you going to try something like this.’ ” Mr. Savage became upset and expressed that he didn’t want Turner to tell anyone, and then reiterated that he wanted Turner to go to bed with him. Turner repeatedly refused. He explained to the jury that although he had been in prison where homosexual activities had taken place, he had no sexual taste for men.
Id.:
1383. He testified he did not
*1025
engage in any homosexual activities while in prison. Returning to the events leading to the homicide, Turner continued that the discussion about sex between Mr. Savage and Turner persisted. Turner offered Mr. Savage a “Spanish fly” so he (Mr. Savage) could have sex at “some girl’s house.” Mr. Savage replied he didn’t want sex with a girl; he wanted sex with Turner.
Id.;
1384. The arguing continued. Turner was sitting at the end of the table in the family room; Mr. Savage came up behind him and grabbed him by his “breast, and arm and neck,” choking him. They struggled and fell over the back of the couch with Mr. Savage “leaning on top” of Turner.
Id.:
1386. Mr. Savage had his arm across Turner’s neck; Turner removed his knife from his back pocket and tried to stab Mr. Savage in the shoulder, but missed and stabbed him in the neck instead. Mr. Savage was in front and on top of Turner at this point. Turner “flipped” Mr. Savage on the couch and dropped his knife in the process. Mr. Savage grabbed a fireplace tool and swung it at Turner. Mr. Savage missed, dropped the tool and Turner picked it up. Turner then picked up his knife and Mr. Savage came from behind him again.
Id.:
1387. At some point in the struggle, Mr. Savage fell on the knife; blood started “gushing out.” Turner was scared and started hollering at Mr. Savage. Turner had the fireplace tool in one hand, and the knife in the other. Mr. Savage was coming at him; Turner was “poking” at Mr. Savage, telling Mr. Savage to get back. Mr. Savage knocked the knife out of Turner’s hands; Turner picked it up. Mr. Savage grabbed Turner by the wrist; Turner stabbed him some more and ran out the patio door.
Id.:
1388.
15
On cross examination, Mr. Hall-ford tried to elicit that while Mr. Savage was running away from Turner, Turner was stabbing Mr. Savage in the back. Turner vehemently denied this, insisting that he was “poking” Mr. Savage with the knife as Mr. Savage was coming at him (Turner). He did not recall stabbing Mr. Savage in the neck, back, and thigh.
Id.:
1421-23. Then Turner testified that Mr. Savage ran out to the enclosed patio and that he (Turner) ran up the stairs, threw the fireplace “stick” in one of the rooms, grabbed his coat from the master bedroom, and took the television from the master bedroom to throw at Mr. Savage in case he came upstairs. When Turner went downstairs, he observed Mr. Savage lying on the patio. While he was lying there, Turner removed his watch and rings, and checked his pulse.
Id.:
1389. Turner went to get a drink from the bar, came back and checked Mr. Savage’s pulse again. Turner realized Mr. Savage was dead.
Id.:
1390. Turner went to the daughter’s bedroom and retrieved a white blanket to cover Mr. Savage’s body. Turner covered Mr. Savage because that’s what he had seen on television
Id.:
1390-91. On cross examination he stated that he covered the body with a blanket, not towels as authorities described it when they came onto the scene.
Id.:
1449. Turner denied cutting the telephone cords. He thought he would take the rings and watch at first, but decided not to because he wouldn’t want anybody to “rob” him if he were dead, so he didn’t.
Id.:
1392-93. Turner did take the television and Mr. Savage’s car keys. The car was in front of the walkway in the front yard. Turner did nothing to clean up the blood. He just left.
Id.:
1394. On cross examination he confirmed that he left Mr. Savage’s body where it was when he came downstairs, that is, he did not move it or drag it across
*1026
the enclosed patio.
Id.:
1420. On recross examination, he explained that when he left the house, Mr. Savage’s body was near the door to the back yard, not where the video taken by Sheriffs detectives depicted it. He also confirmed that when he covered the body, he used a blanket, not multiple towels.
Id.:
1447.
Back in Fresno, Turner parked the car in front of some apartments near his house. At that time, he put the television in the trunk of the car.
Id.:
1396. Then Turner went home. No one was home. Turner removed his clothes to wash them and took a shower to remove the blood “all over” his hair and face.
Id.:
1396-97. He moved the car near to the Fresno Baptist Church so no one would steal the hubcaps.
Id.:
1397. On Monday after work, he moved the car again.
Id:
1398. He made no attempt to sell the television because it wasn’t his. Turner did not know Mr. Savage’s wallet was on the console of the car. He didn’t even look.
Id.:
1399. After work on Monday, Turner took the car to have it washed. He vacuumed the inside, but didn’t clean it further because it wasn’t dirty.
Id.:
1400.
Turner denied having the intent to steal from Mr. Savage when they were fighting. He testified stealing from Mr. Savage was the “last thing” on his mind because Mr. Savage had offered him a job. He decided to take Mr. Savage’s car after Mr. Savage was dead because he had no other way home. He picked up the television with the idea of using it as a weapon and took it with him to the car in case somebody tried to stop him.
Id.:
1402. Turner remembered stabbing Mr. Savage multiple times. Turner told Mr. Savage to get back and Mr. Savage was “just talking about ‘Baby, I love you.’ ”
Id.:
1403. Turner didn’t recall stabbing Mr. Savage in the thigh as the pathologist testified.
Id.:
1404. He thought about wiping finger prints from the cabinets and electronic equipment, but decided not to do so.
Id.:
1405-06.
k. Guilt Phase Testimony of Bartender Jay Bradshaw
Mr. Bradshaw was employed as a bartender at the Fresno Express/ Back Door Bar. This was a homosexual bar, the same one Turner described being in front of when he first met Mr. Savage. Mr. Bradshaw recognized Mr. Savage as a frequent customer at this bar. RT-7: 1451.
l.
Guilt Phase Testimony of Phillip M. Hamm, Jr., Ph.D.
Dr. Hamm, a licensed psychologist practicing in Merced and who had prior testimonial experience in court, personally interviewed and conducted testing on Turner on three separate days. RT-7: 1475.
16
When Turner described the events leading up to the stabbing of Mr. Savage, Dr. Hamm understood it was a “stressful situation” for him. Dr. Hamm opined that Turner had a mental disorder based on his interviews with and testing of Turner, the transcript of the preliminary hearing, various police reports, and material from Turner’s prison records.
Id.:
1477. Based on the results of the Wechsler Adult Intelligence Scale (“WAIS”), Dr. Hamm described Turner as a person with “slightly below average intellectual abilities” who had “a lesser capacity than the average person or people who we would consider to be in the average range to solve problems, to handle unique and novel problems, situations.” No actual IQ (intelligence quotient) was elicited from Dr. Hamm.
Id.:
1478-80. Turner scored in the 30th percentile for intelligence.
Id.:
1481. Testing also showed that Turner was submissive, men
*1027
tally dull, and “would have a tendency to become disorganized under stress,” meaning he “would tend to decompose or he would tend to lose control” when called upon to cope or solve problems.
Id.:
1482. The next test, the Minnesota Multiphasic Personality Inventory (“MMPI”) included a validity scale. Accordingly, the test results demonstrated to Dr. Hamm that Turner’s responses accurately reflected his personality and the various symptoms he was experiencing.
Id.:
1483-84. Turner’s responses on the Rorschach (ink blot) Test also confirmed his passive and submissive qualities as well as his lack of intelligence and lack of creativity.
Id.:
1458-86.
During Dr. Hamm’s interview with Turner, the events leading up to the crime were explained, including the initial meeting between Mr. Savage and Turner, arrangements for Turner to work at Mr. Savage’s Merced house, and Turner’s consumption of PCP cigarettes before being picked up by Mr. Savage and during a break from what little work Turner performed in Mr. Savage’s yard. Turner described a situation where Mr. Savage basically did not require him to perform very much work at all. He (Mr. Savage) essentially began “to entertain” Turner.
Id.:
1488-89. Turner and Mr. Savage discussed compensation for the work Turner performed with Turner saying “he would prefer perhaps for Mr. Savage to perhaps buy him some clothing.” Dr. Hamm commented on how Turner was impressed with the fact that Mr. Savage commanded so much respect from those with whom he came into contact — particularly referring to the store clerk at Gottschalks.
Id.:
1490. When Turner was trying on the clothes at Gottschalks, he noticed Mr. Savage looking at him in a way that made him feel uncomfortable. Mr. Savage was very solicitous.
Id.:
1491. Turner told Dr. Hamm that when they came back to Mr. Savage’s home, Mr. Savage touched Turner and asked him if he were ready to go to bed. Turner reported being surprised and repulsed by the invitation.
Id.:
1492. At the time, Mr. Savage was dressed in his underwear. He became angry at Turner’s refusal, proceeding to swear at him and hit him with a stick. Turner left the house, smoked a stick of PCP, was approached by an apologetic Mr. Savage, and returned to Mr. Savage’s house to collect his (Turner’s) coat and then go home. Mr. Savage “became solicitous and offered him [Turner] a drink,” but then they began to argue about whether Turner would or would not have sex with him (Mr. Savage).
Id.:
1493-94. Mr. Savage tried to talk Turner into having sex with him — offering to buy him anything. Dr. Hamm recounted that Turner reported it was at this point when his head was “pounding, spinning, music sounded like it was loud, he was getting more confused, more disorganized.” Then Mr. Savage became furious not only at Turner’s refusal but that Turner might disclose the fact of Mr. Savage’s overtures. Turner kept telling Mr. Savage he wanted to go home. Mr. Savage reportedly told Turner to “shut up and reminded him that nobody knew where he was,” all the while continuing his argument and fury. Turner then recounted that he went upstairs to get his coat and then just sat in the family room “trying to sort things out.” Then Mr. Savage came up behind him and began to choke him.
Id.:
1494. At this point, Turner grabbed his knife and began to stick Mr. Savage with it; Mr. Savage hit Turner with a fire place poker. Turner picked up the knife and stabbed Mr. Savage as Mr. Savage approached. The stab went into Mr. Savage’s chest and there was a lot of blood “spurting out all over the place.” Prior to this, the PCP was making Turner feel spaced out; “intentions came to his mind to beat Mr. Savage up and leave. But he was fighting it.” He reported to Dr.
*1028
Hamm that when Mr. Savage came up behind him, he “went off,” meaning he lost control.
Id.:
1495. He heard voices telling him to get the knife and stab Mr. Savage. Dr. Hamm continued that Turner went upstairs to get his coat. While there, he was frantic; he couldn’t find his coat.
17
He threw the fireplace poker at a dresser, grabbed the television to throw at Mr. Savage, and came back downstairs. When he came down, Mr. Savage was lying on the ground. He took off Mr. Savage’s watch and rings and determined Mr. Savage didn’t have a pulse. When Turner was recounting this part of the story, he was becoming more and more frantic, as he was reliving what had transpired. After he initially found no pulse on Mr. Savage, Turner went to the bar, drank some liquor, and splashed some liquor on his face, then went back to Mr. Savage’s body to check for a pulse again.
Id.:
1496. After Turner realized Mr. Savage was dead, he contemplated whether he should “rob” Mr. Savage. Mr. Savage’s dog was howling. Turner thought he saw one of Mr. Savage’s eyes open and then close. Turner then went upstairs to get something to cover Mr. Savage’s body, put the television in the car, and drove to Fresno. The next thing he remembered was waking up at his home with blood all over himself.
Id.:
1497. Although Turner was not a person who was psychotic or crazy normally, the effects of PCP mixed with alcohol exacerbated his ability to maintain mental organization, being a man of low native intelligence in a drug-free state.
Id.:
1498-99. “His ability to think things through [was] highly impaired at that time. From an emotional standpoint, he was confused. He was being bombarded with conflicting passionate behavior on the part of Mr. Savage.”
Id.:
1499. On the one hand, Mr. Savage was a high-powered person being solicitous and kindly, treating Turner like a child. On the other, he was becoming demanding and abusive, including sexually abusive. Turner was having auditory hallucinations, hearing voices telling him what to do.
Id.:
1500. He was in the grips of hysteria and eventually began to dissociate himself from the situation and from his own conduct of stabbing Mr. Savage.
Id.:
1501-02. At the time of the struggle with Mr. Savage, Turner was borderline psychotic, that is, “out of touch with [the] reality of the situation.”
Id.:
1503.
On cross examination, Mr. Hallford attempted to undermine Dr. Hamm’s conclusions by suggesting that Turner had lied to him, including about having used PCP, drinking alcohol with Mr. Savage on the day of the crime, and Mr. Savage’s sexual advances. Mr. Hallford emphasized that the story Dr. Hamm recounted was not what really happened, but, rather, what Turner said happened. Included in this argument was the suggestion that Turner in fact had not used PCP on the day of the crime.
Id.:
1504. Dr. Hamm testified that although Turner told officers he didn’t know Roy Savage, this misstatement could have been based on defensiveness or amnesia. Dr. Hamm felt that Turner’s story during their interview was consistent with the result of the psychological tests.
Id.:
1506. He admitted, however, that the tests administered to Turner did not indicate whether he (Turner) committed a crime or intended to commit a crime. He commented that the presence of a low IQ score would be more consistent with murder because people with lower intelligence
*1029
would tend to utilize more of a physical than a mental approach to problems.
Id.:
1507-08. Mr. Hallford suggested that since Turner lied to investigating officers about whether he knew Mr. Savage, he would also lie to the jury.
Id.:
1509. Dr. Hamm did not believe a defendant would lie to a jury because he would be counseled against it; lying would be very detrimental to the defense case.
Id.:
1510. Dr. Hamm believed his “interview methodology, coupled with the psychological testing, and review of the records, [wa]s a lot more scientific in terms of determining a man’s mental state at the time of the commission of the offense than what the police officers did.”
Id.:
1513. He explained that psychological testing is a scientific tool used to infer certain information.
Id.:
1513-14. In fact, Dr. Hamm’s purpose in examining Turner was not to accept Turner’s word for everything, but rather to determine “the factual basis for the issues in question.” The tests administered to Turner originally were developed to make diagnostic assessments and to provide treatment, but after much work and research, they had been properly applied to legal issues.
Id.:
1517-18.
m. Guilt Phase Testimony of Lee Stewart Coleman, M.D.
In rebuttal to the defense presentation of Dr. Hamm, Mr. Hallford called psychiatrist Lee Stewart Coleman, M.D. As a practicing, clinical psychiatrist, Dr. Coleman told the jurors that psychiatry cannot help a court or jury decide questions of a defendant’s mental state. RT-7: 1522. He further discounted the value of psychological tests as providing independent reliable information because they rely on the personal opinion of the tester.
Id.:
1524. With respect to Dr. Hamm’s testimony, specifically, Dr. Coleman found it “extremely misleading” and the tests administered irrelevant as well as unreliable.
Id.:
1528-29. A primary basis for Dr. Coleman’s opinion was that subjects in the criminal justice system have a reason to misrepresent the facts.
Id.:
1528.
n. Mr. Hallford’s Guilt Phase Summation
Mr. Hallford emphasized Turner’s lack of credibility on account of untruthfulness to officers at his arrest and interrogation that he hadn’t been to Merced and didn’t know Mr. Savage. RT-8: 1664. He further discounted the theory that Mr. Savage was gay and was looking to Turner for sex. The only basis for that theory was Turner’s testimony, which Mr. Hallford urged was not credible, and evidence that Mr. Savage had been seen at a gay bar.
Id.:
1666-67. Referring to the cut telephone cords, he stressed they were cut for a purpose and that Mr. Savage certainly didn’t cut them.
Id.:
1667-68. With respect to the television Turner took from the master bedroom, Mr. Hallford argued it was both unlikely and unreasonable to suppose Turner thought of using it as a defensive weapon.
Id.:
1668-69. He discounted the notion that a phantom person came into the house after Mr. Savage was killed, clipped the telephone cords, took the missing items which were never found, re-covered Mr. Savage with towels rather than the blanket from upstairs (Turner testified about), and moved the body.
Id.:
1669-70.
He argued that Turner only admitted to the jurors what he had to admit, that is taking the car, taking the television, and stabbing Mr. Savage.
Id.:
1670. Then, Turner concocted a story about warding off a sexual attack to show self-defense or homicide in the heat of passion.
Id.:
1671. Mr. Hallford maintained that Turner intended to kill Mr. Savage when he repeatedly stabbed him (Mr. Savage) and had robbery in mind when he cut the telephone cords.
Id.:
1674-75.
*1030
o. Mr. Ellery’s Guilt Phase Summation
Mr. Ellery started with Dr. Hamm’s perception of Turner, as a person of low-average intelligence, who was by nature ill-equipped to handle stressful situations, and the events preceding the homicide were stressful. RT-8: 1679-80. Mr. Savage presented a conflicting personae. On one hand, he was authoritative, wealthy, and sexually demanding. On the other, he was kind, solicitous, and generous. Turner was not only naturally unable to cope with stress, but he also was isolated and wanting to go home. He was getting frustrated. Ultimately, he boiled over and regressed to act in a physical manner, delivering 40 ineffectual wounds and three to four effectual blows.
Id.:
1680. The delivery of 40 ineffectual blows did not speak of a planned attack.
Id.:
1681.
To discount the robbery theory, Mr. Ellery stressed that the kitchen telephone cord had not been cut, even though Turner heard Mr. Savage talking on that telephone.
Id.
Referring to Turner’s removal of Mr. Savage’s rings and watch after concluding he was dead, Mr. Ellery asserted that the intention to steal did not arise until after the struggle.
Id.:
1683. The police suspected Mr. Savage had a gay lifestyle as indicated by their investigation at the Back Door bar. The officers suspected Mr. Savage may have been a customer at that establishment and they confirmed this suspicion by interviewing a bartender. Mr. Ellery also stressed that Turner did not take any of the missing items, other than the television and car, since there was no trace of them at his (Turner’s) house.
Id.;
1685. Giving substance to the theory that someone broke into the house after the homicide, Mr. Ellery referred to the 30 to 40 “liftable” prints investigators found at the home, which belonged neither to Turner nor to Mr. Savage, which authorities never pursued. Some time after the investigation and after the family had changed the locks to Mr. Savage’s house, a broken key was found in the front door. Mr. Ellery argued this showed that a second theft crime was committed.
Id.:
1686.
Mr. Ellery portrayed Turner as a person susceptible to influence by the authority figure Mr. Savage presented on the street corner in Fresno. Turner was submissive; Mr. Savage may have picked up on that. When Mr. Savage brought Turner to his house, he gave Turner no instructions on what to do with the yard.
Id.:
1688. Turner was impressed by Mr. Savage’s interactions with others during the day, particularly with the Gottschalks clerk.
Id.:
1689. Mr. Ellery also questioned Mr. Savage’s motives after it was clear no more yard work was going to be performed. He pondered what other reason for the delay in taking Turner home could there have been other than that Mr. Savage was “courting” Turner.
Id.:
1689-90. He argued that Mr. Savage definitely had an interest in men, as seen by entries in his telephone index, particularly a note next to a man’s name that “This man is cute.”
18
Mr. Ellery stated:
At least I ask you to consider there is the possibility that the Defendant’s version of this, of this event is so accurate, that it is likely that this- — he reacted either to the overtures made by Mr. Savage, of a homosexual nature, or that he referred to the fact that Mr. Savage became upset, when he refused initially to acknowledge that he promised that he would not say anything to anybody. A sudden passion; a quarrel between the two.
*1031
Id.:
1692. This scenario, Mr. Ellery argued, negated pre-homicide malice, an element the prosecution needed to prove.
Id.:
1693.
p. Mr. Hallford’s Guilt Phase Rebuttal
On rebuttal, Mr. Hallford again stressed Turner’s unreliability and lack of credibility as a witness. He further pointed out to the jurors that Mr. Savage was not on trial. RT-8: 1694. He argued that the interim burglary of Mr. Savage’s house between the Saturday homicide and Monday afternoon discovery was something Mr. Ellery imagined.
Id.:
1694-95. The broken key in the door was a red herring. It was found weeks later.
19
Id.:
1695. Finally, Mr. Hallford argued that many of the stab wounds inflicted on Mr. Savage hit vital organs. Mr. Savage was stabbed in the back trying to get away while Turner pursued him.
Id.:
1698.
q. Guilt Phase Deliberations
The jurors retired at 3:04 p.m. on Tuesday, November 20, 1984 and returned at 4:17 p.m. for a read back of Dr. Hamm’s and Turner’s testimony, were sent back and deliberated until 5:25 p.m. They returned the next day, Wednesday, November 21, 1984 at 10:00 a.m. and 34 minutes later announced a verdict finding Turner guilty of first degree murder and the robbery-murder special circumstance true. RT-8: 1704-12. After the jurors were polled, counsel and the trial judge discussed starting the penalty phase. Mr. Ellery stated he was not prepared to proceed at that time and requested a continuance of the proceedings until the following Tuesday, November 27, 1984 (after Thanksgiving).
Id.:
1715. The jurors were then dismissed until November 27, 1984.
20
2. Penalty Phase Trial Proceedings
The relevant penalty phase trial proceedings include penalty phase testimony, Mr. Hallford’s closing, and rebuttal arguments, Mr. Ellery’s closing arguments,
21
penalty phase instructions, and deliberations. The penalty proceedings commenced and were completed with a death verdict in a single day, November 27,1984.
Id.:
1757.
a. Penalty Phase Testimony of Dr. Murdoch
Over Mr. Ellery’s objection, Mr. Hall-ford recalled Dr. Murdoch, his only penalty phase witness, to address the circumstances of the crime. Based on his examination of the stab wounds, Dr. Murdoch concluded they were inflicted in many different directions, “indicating that the deceased had been mobile and moving at the time he was stabbed.” RT-8: 1779. Even though many of the wounds were shallow because they hit and terminated at a bone, or were inflicted at an angle, most of the wounds appeared to have been delivered by “considerable force.”
Id.:
1780. The depth of the
*1032
wounds was about three or four inches, generally.
Id,.:
1782-83. On cross examination, Mr. Ellery elicited that Dr. Murdoch only probed (measured) the wounds that appeared to have struck an organ.
Id.:
1784-85.
b. Penalty Phase Testimony of Detective Strength
Mr. Ellery elicited from Detective Strength that the remote control for the television Turner took from the master bedroom was left behind. RT-8: 1792.
c. Penalty Phase Testimony of Ruth Turner
Ruth Turner, Turner’s mother, briefly and superficially described Turner’s family life. She testified she had four children, three daughters and Turner. RT-8: 1794. None of Turner’s sisters had trouble with the law.
Id.:
1795. In the tenth grade, Turner’s English teacher suggested that Turner be placed in a remedial reading class because of some misbehavior in class. After completion of this remedial class for a year, Turner he returned to grade level performance and was a good student making C’s and B’s. His school progress thereafter was good and he had no further behavioral problems.
Id.:
1796-97. Turner did not fight with or hit his sisters. Before his arrest, he gave Mrs. Turner $50 a week and his 15 year old sister, Oweida, $20 a week.
Id.:
1798. Mr. Hallford elicited from Mrs. Turner that she didn’t know how he spent the rest of his money, but that she knew he was using drugs at the time and believed he might be using PCP.
Id.:
1800-01.
d. Penalty Phase Testimony of Lisa Haynes
Ms. Haynes was Turner’s half-sister. They had the same father and Ms. Haynes’ mother was related to Turner’s mother. She learned Turner was her half-brother when she was in the fifth grade and he was in the sixth grade. In school Turner was shy and quiet, not known for violent behavior.
Id.:
1802-04. Mr. Hallford elicited that Ms. Haynes didn’t live with Turner during high school and was not aware of the circumstances of this prior convictions.
Id.:
1806-07.
e. Penalty Phase Testimony of Elijah Barber
Mr. Barber, was a neighbor of Turner when Turner was growing up. His son, Dexter, was Turner’s age. The boys had been close since they were two years old, attending grade school through high school together. RT-8: 1808. When Turner came to the Barber home to spend time with Dexter, Mr. Barber heard Turner express his wish that he had a father like Mr. Barber.
Id.:
1809. WTien Turner’s father separated from Turner’s mother and moved out of the family home, he moved down the block with another woman. Mr. Turner purchased nice clothes and shoes for the children of his girlfriend but not for his own children.
22
When Mr. Barber had a heart attack in 1979 (five years before the trial), Turner came over to help him with the lawn.
Id.:
1810. Mr. Barber was not aware of and never observed fighting or arguing between Turner and Dexter.
23
Id.:
1811. Mr. Barber was not aware of the details of Turner’s convic
*1033
tion, but was aware Turner had been in prison.
Id.:
1812.
f. Penalty Phase Testimony of Lewis Coleman
Mr. Coleman was a “job developer” who placed Turner in three different jobs, including his last job for Cross Construction in 1983.
24
RT-8: 1814-15. Mr. Coleman received reports on Turner’s performance at Cross Construction every 30 days. They were highly favorable.
Id.:
1816.
g.
Penalty Phase Testimony of Kathryn Carter
Ms. Carter, Turner’s cousin, was close contact with Turner as he grew up. She lived with Turner and his mother in 1979 and 1980. She testified she had four young sons and Turner treated them all very well. He showed no signs of aggression. RT-8: 1818. Mr. Hallford elicited that she knew he had been incarcerated for robbery and receiving stolen property, but no further details.
Id.:
1819.
h. Penalty Phase Jury Instructions
The jurors were given complete copies of the instructions to read along with the judge. They were told that in determining which penalty to impose they were to “consider all of the evidence ... received during any part of the trial.” RT-8: 1841. Specifically the jurors were told to consider the following sentencing factors:
25
the circumstances of the crime of which Turner was convicted and the existence of any special circumstances found to be true (factor (a)), the presence or absence of any prior felony conviction (factor (c)), whether the offense was committed while Turner was under the influence of extreme mental or emotional disturbance (factor (d)), whether the victim was a participant in Turner’s homicidal act or the victim consented to the acts which led to the homicide (factor (e)), whether the offense was committed under circumstances which Turner reasonably believed to be a moral justification or extenuation for his conduct (factor (f)), whether Turner acted under extreme duress or under the substantial domination of another person (factor (g)), whether at the time of the offense Turner’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication (factor (h)), Turner’s age at the time of the crime (factor (i)), and any other circumstances which extenuated the gravity of the crime even though not a legal excuse for the crime and any other aspect of Turner’s character or record that Turner offered as a basis for a sentence less than death (factor (k)).
Id.:
1841-42.
26
The jury was given legal definitions for his two prior crimes, robbery and receiving stolen property.
Id.:
1844.
i.Mr. Hallford’s Penalty Phase Summation
Mr. Hallford outlined the aggravating circumstances, beginning with Turner’s admitted prior robbery conviction. RT-8: 1848. He continued that Mr. Savage had not been a participant in the homicidal
*1034
conduct; he was running and was stabbed in the back. Turner’s story about having a reasonable belief that his act of stabbing Mr. Savage was morally justified or that the circumstances presented might have extenuated the nature of his conduct was “just unbelievable.”
Id.:
1849. Mr. Savage was fully clothed, belt buckled, shoes on. Mr. Hallford emphasized Turner cutting of the telephone cords showed “he had the factor of robbery in his mind before the stabbing.” He noted Turner did not act under extreme duress of domination of another.
27
Id.:
1850. He further argued that blood tests taken of Turner days after the killing “wouldn’t reveal whether or not he was under the influence ... at the time of the killing.”
28
However, he conceded that if Turner had been under the influence of drugs or alcohol, that would have been a mitigating factor. Mr. Hallford’s primary emphasis was the fact that Turner repeatedly stabbed Mr. Savage, “over and over, again and again.”
Id.:
1851. He closed with the statement that Turner should be given no more sympathy or mercy than he gave his victim.
Id.:
1852.
j. Mr. Ellery’s Penalty Phase Summation
On summation, Mr. Ellery
29
presented a lingering doubt argument. He began by explaining that the reasonable doubt standard referred to something about which the jurors were morally certain and then urging them to be more certain when considering the death penalty. He stressed that there were uncertainties in the case. RT-8: 1853. First, he pointed to the fact that Turner took the upstairs television without the companion remote control, indicating he didn’t intend to use the television “in the normal fashion or offer it for use in the normal fashion” and consequent uncertainty as to whether he intended to commit a robbery before the fatal altercation with Mr. Savage.
Id.:
1853-54. There was the uncertainty about activities that “almost surely” occurred after Mr. Savage’s death. The numerous coverings found over Mr. Savage’s body when he was found by authorities were different than the single blanket Turner described. The pillow found under Mr. Savage’s head by authorities was placed so long after the crime that there was no blood on it, suggesting that someone other than Turner placed it there. Mr. Ellery argued that while there was evidence someone tried to mop or clean up some of the blood, there was no rag found used for that purpose.
Id.:
1854. Mr. Ellery also questioned why Turner would have gone all the way upstairs to retrieve a television to steal when there was one readily available downstairs. Since these events suggested someone came into the house after the crime, Mr. Ellery argued it also was uncertain that Turner cut the telephone cords or that he took the other property said to have been missing from Mr. Savage’s house.
30
Id.:
1855. Mr. Ellery urged that Turner’s tes
*1035
timony was believable because he made so many damaging admissions to Dr. Hamm as well as in his own testimony.
Id.:
1855-56. He also urged the jurors to consider Mr. Savage’s role in the events leading up to the crime, especially the “mysteries of his weekends before this particular weekend.”
Id.:
1856. He noted that Turner’s mother testified Turner had been “using some kind of intoxicant,” and conceded that Turner had twice been convicted of a crime and sent to prison. He stressed that Turner was well-loved by his family and liked by his employer.
Id.:
1857.
Transitioning to the deliberative process, Mr. Ellery discussed the critical term of the instructions about whether the aggravating circumstances outweighed the mitigating circumstances explaining that the way the law was drafted left much of what must be decided up to the jurors.
Id.:
1858. He then referred to the Bible passage about not judging others.
31
Mr. Ellery concluded by summing up Turner’s life prior to the crime and the crime itself:
He’s lived, the drug thing is wrong, the prior robbery is wrong, the prior receiving charge is wrong, this Defendant was wrong. Four item [sic] wrongness.
We’ve attempted to show you his day-to-day life prior to these events. Awfully well regarded by his family, by his neighbors, by his school, by his employers. Thank you very much.
Id.:
1859.
k. Mr. Hallford’s Penalty Phase Rebuttal
Respecting the uncertainties, which he discounted, Mr. Hallford first addressed the television remote control, stating there was no reason for Turner to have known it existed. He emphasized that the cut telephone cords had no blood on them, so Turner must have cut them before the homicidal assault began. After the stabbing, Turner was dripping with blood, his hands were bloody, the doorknob was bloody. RT-8: 1861. Mr. Hallford argued that Turner’s theory about someone else coming into the house and replacing the coverings Turner put over Mr. Savage’s body was a “red herring.” The fact that the pillow under Mr. Savage’s head had no blood on it was insignificant since it was resting under a part of his head that wasn’t bleeding. Mr. Hallford also reminded the jurors that when Turner was first apprehended by authorities, he was not honest about having been in Merced or knowing Mr. Savage. Turner only admitted the events which authorities had proved.
Id.:
1862.
1.
Penalty Phase Deliberations
Following the examination of witnesses, instructions, and summation, the jury retired to deliberate at 2:53 p.m. and returned with a death verdict at 4:04 p.m. RT-8: 1865, 1867-68.
3. Turner’s motion for modification of the death verdict
After the verdict of death, the court set December 21, 1984 for the actual sentence and Mr. Ellery’s motion for modification of the verdict pursuant to Penal Code § 190.4. RT-8: 1870. Relevant to the present proceedings, during oral argument on the § 190.4 motion, Mr. Ellery stressed that Turner ordinarily was a caring, gentle person and that the number of wounds showed the homicide to be a crime of passion, even taking into account the jury’s finding of intent to kill. CT: 323-24. Mr. Hallford responded that although Turner’s
*1036
family members and friends knew him as a caring and gentle person, they knew very little about his past criminal record.
Id,.:
327. He again emphasized that at least 20 to 30 of the stab wounds inflicted demonstrated a distinct intent to kill Mr. Savage.
Id.:
328.
32
The gruesome circumstances of the crime were the most influential sentencing factor. But the planning (apparently alluding to the cut telephone cords) also showed premeditation.
Id.:
329. Mr. Ellery responded that cutting telephone cords did not show intent to kill, but intent to prevent a live person from calling authorities about a theft.
Id.:
331.
The trial court then reviewed the evidence, noting that Mr. Savage evidently made the first contact with Turner and there was telephonic contact between the two during the ensuing week until the day of the crime.
Id.:
333. Mr. Savage treated Turner nicely and Turner was impressed by the deference shown by various people to Mr. Savage.
Id.:
333-34. The court acknowledged Turner’s theory of the case, that he had no intention of harming Mr. Savage when he came to Merced, but was provoked by Mr. Savage’s sexual advances. There was, however, contrary evidence supporting the jury verdict.
Id.:
334. The court was convinced by the cut telephone cords that Turner did form the intent before the stabbing attack “to commit some kind of act.” Further, the number of stab wounds demonstrated an intent to attain the objective of killing Mr. Savage, a man much larger than Turner.
Id.:
335. Cutting the telephone cords evidenced planning. The court suggested that Turner may have disliked homosexuals, as he perceived Mr. Savage to be, and he determined that killing Mr. Savage “was one way he could do something about it.”
Id.:
336. With respect to Turner himself, the court found his recent release from prison to be a factor worthy of consideration. As to the crime, Turner’s role was not minor, his act was not a mistake or induced by others, and the jury didn’t believe his story that Mr. Savage’s conduct precipitated the stabbing. Agreeing with the jury verdict, the court commented that under the circumstances presented, there was every reason to believe that Turner committed first degree murder in the commission of a robbery
and
aggravating factors outweighed mitigating factors.
Id.:
337. There was no indication that the jury was inflamed in arriving at its verdict.
Id.:
337-38. The court denied the motion to modify the sentence.
Id.:
338.
4. Evidence Presented at the Evidentiary Hearing
Turner proffered evidence focused on his early childhood abuse, his borderline intellectual capabilities, his drug abuse history, as well as Mr. Savage’s predatory sexual practices. His theory is that Mr. Ellery’s failure to develop this evidence constituted deficient performance because had Mr. Ellery presented this evidence, the jury would not have returned a death sentence verdict. The Warden offered evidence to suggest that Mr. Ellery’s alleged failure to conduct a reasonable investigation was not capable of being determined because his trial file was lost. Alternatively, the Warden’s evidence was intended to show that Mr. Ellery’s defense representation was not objectively unreasonable, largely because a body of evidence existed demonstrating a violent side to Turner’s character.
33
The evidence admitted in-
*1037
eludes live, declaration, and deposition testimony, as well as interview statements and letters appended to a probation report. The following evidentiary summaries are divided by witness category.
a. Turner Family and Friend Witnesses
Turner called his sisters Evelyn Turner, Elizabeth Turner, and Oweida Doxey, his mother Ruth Ann Turner, and his paternal aunt Yvonne Turner Haynes. Prior declarations of these witnesses also were considered by the Court. He offered (and the Court received) declarations of his late father, Thaddaeus J. Turner, his late former girlfriend, Pam Butler, and a Fresno County Probation Report, filed with the Fresno Superior Court on March 31, 1980, which included many favorable letters from family members and friends. The Warden called Turner’s cousin, Kathryn Carter Senegal-Price and offered interview transcripts (as well as cassette tapes) of Lewis Coleman and Sandra Goodman.
(1) Evelyn Turner
Evelyn Turner, Turner’s older sister by one year, testified she worked as a human resources manager for Pitney Bowes, having received her bachelor of science degree in business from Pepperdine University. EHT-L13. When Evelyn was six or seven years old and Turner was five or six years old, she remembered that their father abused Turner. He drank and in his drunken state, his whole demeanor changed.
Id.:
15. The abuse took three forms: “thumping” Turner on the head, “whooping” him with a razor strap in the garage, and giving him karate punches in the stomach.
Id.
On cross examination, the Warden attempted to elicit that the father was trying to teach Turner karate moves, but Evelyn persisted that when Turner failed to learn certain moves, the father would punch Turner (as a young child) in the stomach. The blows were hard and delivered with vigor when the father was drunk.
Id.:
81-82. If Turner wouldn’t spar with the father, the father would then start “thumping” Turner to induce cooperation in the karate training effort.
Id.:
83. The abuse occurred when the mother was not at home and happened often — during the weekdays, and on weekends. At times, the mother’s absence was due to her going to school at night.
Id.:
16. The father thumped Turner all over his head, ears, and neck.
Id.:
17-18. The thumping was very hard. The father also thumped Turner when he did not repeat foreign words properly.
34
When the father would thump Turner, he (Turner) cried or had a traumatic look, meaning his eyes became wide and his arms trembled.
Id.:
23-24. If Turner cried, the father would sock him in the stomach.
Id.:
19-20. The abuse continued until the father moved out of the home.
35
The father used the razor strap on Turner often' — not as frequently as once a day. The razor strap “whoopings” were inflicted arbitrarily, not necessarily when Turner did something wrong.
Id.:
21-22. Evelyn and her sister Elizabeth would stand at
*1038
the door and watch when their father whipped Turner with the razor strap.
Id.:
66. On cross examination, she admitted that the whippings were punishment for something Turner did that he knew he wasn’t supposed to have done.
Id.:
66-67. The father also used a belt on all the children, but a razor strap only on Turner. He never thumped the girls and very rarely gave them whoopings or disciplined them.
Id.:
22-23. The mother occasionally was present during the karate “training” sessions, but she was not present when the father beat Turner with the razor strap.
Id.:
84. The father also didn’t “thump” Turner when the mother was present.
Id.:
85. Eventually the mother stopped going to classes at night.
Id.:
23.
The father also was verbally abusive. The verbal abuse tracked the physical abuse, from the time Evelyn was six until she was eleven or twelve.
Id.:
25, 26. The father berated Turner, calling him “stupid” and “dumb” when he (the father) was drunk.
Id.:
26. During this approximately six-year period, Evelyn never observed the father give Turner any positive words of encouragement or show affection, with the exception of one fishing trip.
Id.:
27. Those positive words had to do with Turner putting a worm on the end of a fishing hook.
Id.:
80. Once Turner helped his father extend the sprinkler system in the front yard of the family home.
Id.:
77-78. She never heard her father compliment Turner respecting his assistance on the sprinkler system, or anything else.
Id.:
100.
The following colloquy summarizes Evelyn Turner’s testimony about her brother’s upbringing:
Q. Was there something different about the quality of the punishment that your father administered to Thad and the quality of punishment that your father administered to you?
A. Yes.
Q. And what was different about it?
A. My father did not — like I said, rarely did he give us [Evelyn and Elizabeth] whoopings. And he was always doing something to my brother.
Q. And when you say he was always doing something to your brother, was that because your brother was always acting out and doing something wrong?
A. No, we were all acting out, but he chose to — he was the person that took the brunt of the punishment.
Q. Did your father ever thump you in the head?
A. Never.
Q. Did your father ever use a razor strap on you?
A. Never.
Q. Did your father ever do a karate sock in the stomach to you?
A. Never.
Q. How about to your sisters?
A. No.
Q. Did your father ever call you stupid?
A. No.
Q. Did your father ever thump Thad in the head when your brother had done nothing wrong?
A. Yes.
Q. Did he ever use a razor strap on your brother when he had done nothing wrong?
A. Yes.
Q. Did he ever sock — your father ever sock your brother in the stomach when your brother had done nothing wrong?
*1039
A. Yes.
Id.:
95-96.
Turner had other problems. He suffered from asthma as a child and he also had academic problems. In elementary school, he was in a tutoring program to help him with math and English. In junior high and high school, Evelyn was certain he was enrolled in special education classes.
Id.:
28. The mother helped Turner with his academics, but the father did not.
Id.:
29. Their cousin, Phillip Haynes, who was six years older than Turner and five years older than Evelyn, tutored Turner a bit in reading and math.
Id.:
74. Turner was in a remedial reading class when he was a junior in high school. Evelyn did not dispute her mother’s testimony that Turner progressed to a regular reading class in his senior year. She was not living at home when Turner was a high school senior.
Id.:
75-76.
Evelyn recalled the parents fighting in the presence of the children when she was eight or nine years old.
Id.:
30, 63. On one occasion, Evelyn observed her father giving her mother karate chops and socking her in the stomach. The mother hit him in the head with a skillet, and the fighting continued outside. While her father continued to strike the mother with karate chops, the mother used the skillet to knock out the windows in the house and the father’s station wagon.
Id.:
30-31. All four children were present for that fight.
Id.:
31, 63. On cross examination, the Warden brought out that Evelyn previously averred, in her June 15, 1994 declaration (Exhibit 19 to the Petition),
36
that Turner kept to himself, spending a lot of time alone in his room or outside in a special spot behind the bushes.
37
She explained that when the parents began fighting, Turner came out to find out what was going on. “So he was still present.”
Id.:
63-64. The parents argued and fought “quite often.” The father was drunk during these fights. After the fights, the mother came away with bruises on her arms.
Id.:
31. During one fight, the mother pulled telephone cords out of the living room wall.
Id.:
41.
The father would sometimes take the children out for rides in his car or pick-up truck when he was drunk.
Id.:
32. There were other occasions when the father would drive up and down the circular driveway of a parking structure downtown very fast, to give the children a thrill. At the top of the structure, the children had to get out of the car and stand at the ledge and look over the city. This was frightening for Evelyn and Elizabeth because they were afraid of heights.
Id.:
69; 98. These excursions were frequent over a period of approximately three years when Evelyn was seven to nine years old.
Id.:
69. None of the three children, Evelyn, Turner, or Elizabeth, wanted to get out of the car to look over the banister, but the father “made” them.
Id.:
98. When Evelyn was eight or nine, the father provided alcohol to her and Turner (who would have been seven or eight). When he gave the children alcohol to drink, the father was driving very fast.
Id.:
34. During the same time frame, the father took the children to an irrigation ditch two or three times. The children walked out on a ledge and sat down on the dirt with their legs hanging over the edge where water was gushing out of the pumps. The children were frightened because they could not swim.
Id.:
35, 37. These irrigation ditch
*1040
excursions did not include Oweida, who was a baby at this time, just Evelyn, Turner, and Elizabeth. The father had been drinking.
Id.:
36. Evelyn did not describe these excursions as forms of punishment.
38
The mother administered corporal punishment to the children until they were in junior high school. She did not hit them as hard as the father hit, but she did use switches, extension cords, and Hot Wheels race tracks.
Id.:
40. The mother was depressed and suffered headaches. She was sad, moody, and “fussed” at the children.
Id.:
43-44. When the father first moved out of the home, he lived in a motel, and then moved in with a woman down the street.
Id.:
45. This woman, Faye Hill, had a daughter named Patsy Roebuck, and several sons.
Id.:
85-86. The father seldom visited his own children and he seldom provided financial support. When he did visit, he continued to thump Turner on the head, but discontinued use of the razor strap.
Id.:
45^46. The thumping continued until Turner was in the ninth grade.
Id.:
47. After the father moved out, neighbor Elijah Barber, whose son Dexter, was Turner’s age, often would include Turner in father-son activities.
Id.:
80-81. There was rivalry, animosity, and threats between the Turner children and Ms. Hill’s children on account of the father’s living arrangements. But Evelyn did not recall that Turner was involved in beating up one of the sons.
Id.:
86-87. Evelyn did recall, however, that her cousin Phillip and Dexter Barber got into a fight, that Turner interceded, that Dexter than called Turner a “faggot,” and that Turner then fought with Dexter. The Warden attorney asked if Turner “kicked Dexter’s butt.” Evelyn responded, “Yeah, they had a fight.”
39
Evelyn considered Turner to be non-violent despite the animosity with Ms. Hill’s children and the fight with Dexter Barber.
Id.:
87. Dexter may have called Turner a “punk.”
Id.:
102. Dexter was not injured in the fight. It “was just standard rough house, hitting each other and then breaking it up.” There were no bruises, no black eyes.
Id.:
100. On recross examination, Evelyn did not agree with the Warden’s question that Turner “won” the fight with Dexter.
Id.:
104.
When Evelyn was in high school she observed that Turner was under the influence of something. She recognized this because his eyes were red and his behavior was despondent. She saw him smoke marijuana often.
Id.:
47. He was 14 or 15 years old. He obtained the marijuana from their cousin Phillip, who lived in the house at that time.
Id.:
48. A little later, Turner began using PCP, in the form of “Sherm sticks” which he smoked. His demeanor and reaction to people changed when he started using PCP. He was in his late teens to early 20s.
Id.:
49. The PCP use might have started after Turner was committed to CYA (when he was 17 and had graduated from high school). When Turner was 19, she saw him in an altered mental state.
Id.:
50. He had red eyes and was despondent until Evelyn challenged him by asking him why he was using drugs (PCP). With this challenge, Turner became very angry with Evelyn, which was uncharacteristic.
Id.:
51. He raised his voice and told Evelyn to mind her own business.
Id.:
88. Evelyn brought the fact of Turner’s drug use to her mother’s attention.
Id.:
52. The fam
*1041
ily was very unhappy Turner was using drugs.
Id.:
88.
From the time Turner was paroled from Soledad State Prison in September 1983, until his arrest in April 1984, Turner had contact with his father. The father gave Turner rides to work during that period. From 1982, on, Evelyn lived in Southern California, although she came up to Fresno on holidays.
Id.:
91-92. Generally, however, she was not in Fresno during the Mr. Ellery’s investigation for Turner’s defense. She was never contacted by telephone.
Id.:
92-93. She attended three days of Turner’s trial and was introduced to Mr. Ellery, but Mr. Ellery never suggested that she be called as a witness. She was available to testify and would have been willing to testify about the family background.
Id.:
53.
(2) Elizabeth Turner
Elizabeth Turner, one year younger than Turner, testified she worked as a teacher in the Fresno County Headstart Program, having received her bachelors degree in human development. EHT-1: 105-06. She attended every day of Turner’s 1984 trial with her mother and sisters (Elizabeth and Oweida).
Id.:
106-07. She was never interviewed by Mr. Ellery, either before or during the trial. She was never interviewed by defense investigator Ray Brown, or present at her mother’s home when Mr. Brown was interviewing her mother. She did not testify at trial or think of asking Mr. Ellery if she should testify.
Id.:
107-08. She didn’t think of asking because Mr. Ellery was the lawyer. She would have been willing to testify about family background, including parental abuse and alcoholism.
Id.:
108. On cross examination, she clarified that she was never involved in a family meeting with defense personnel to talk about Turner’s case.
Id.:
144. Elizabeth did not live in Fresno at the time; she lived in the Bay Area.
Id.:
144-45. She was attending California State College at Hayward at the time.
Id.:
177.
She remembered that when she was five or six (and Turner was six or seven), her father disciplined Turner by spanking, “thumping,” and possibly striking him with a razor strap, although the razor strap might have started a little later.
Id.:
108-09. When the father thumped Turner, he (Turner) would cry. The father would thump Turner for a variety of reasons, including when Turner was crying about something — to induce him to stop crying, as well as for punishment for a minor transgression.
Id.:
110-11. Turner was the only recipient of thumping. Elizabeth was in the fifth grade when her parents separated. She was ten years old.
Id.:
111. The father thumped Turner three or four times a week. He did not thump Turner when the mother was present.
Id.:
112, 122. When the father “hit” or “beat” Turner with the razor strap, he took Turner out in the garage to do so, for a period of two to three minutes. Turner would cry.
Id.:
113. Elizabeth actually saw her father strike Turner, but she didn’t stay for the entire duration of the beating.
Id.:
148. Even while she was not watching, she could still hear the sound of the razor strap striking Turner’s body and she could hear Turner crying.
Id.:
182. After the beating, Turner would come into the house and continue weeping in his room.
Id.:
183. Turner was disciplined because he had done something he knew he wasn’t supposed to do, or he didn’t do something he was supposed to do, or he didn’t do something the way the father wanted him to do it.
Id.:
149. Elizabeth believed that thumping Turner was overkill for doing things that boys do, which she characterized a minute transgressions the father could have talked to Turner about rather than thumping or “knuckling” him. Examples included running in the house, throwing rocks outside, or hitting some
*1042
one.
Id.:
164. Elizabeth believed that the abuse inflicted on Turner was more severe than the abuse that was inflicted on her.
Id.:
180-81. She did not feel that Turner’s conduct warranted physical discipline, like the thumping or razor strap treatment. The punishment inflicted on him was disproportionate to the punishment doled out to the sisters.
Id.:
183.
The three girls were never beaten. Elizabeth may have been spanked, but she didn’t recall having been spanked by her father.
Id.:
114. Elizabeth testified that although she was difficult to manage and misbehaved as a child, Turner was the one who was punished.
Id.:
122. Elizabeth had frequent and violent encounters with her mother. She and her mother did not get along well. Once her mother came at her after Elizabeth called her a “bitch.” Her mother choked her.
Id.:
178. But the mother’s choking of Elizabeth was in response to Elizabeth fighting with her mother.
Id.:
184. Unlike Elizabeth, Turner was not often disciplined by the mother. He obeyed her.
Id.:
185. While in high school, Elizabeth moved in with her grandmother until she moved away from Fresno. After she lived with her grandmother, while Turner was still at home, she saw him when he would come to the grandmother’s house to visit.
Id.:
179.
Before the parents separated, the father berated Turner, telling him to “stop crying” because he was “acting like a sissy.” She could not recall any positive interactions between her father and her brother.
Id.:
115. The “sissy” admonitions some times came in the context of the father trying to teach Turner karate as well as other times. The karate “training” only took place when the father was intoxicated. Elizabeth agreed with the Warden’s eounsel that this could have been to toughen Turner up.
Id.:
168. The father would wake the children at night when they were sleeping up to have them walk over his back.
Id.:
122-23. She remembered having to walk on the father’s back about every other month.
Id.:
123.
The father was not often sober. When he was sober, he was quiet, bright, intelligent, and to himself. He abused alcohol for as long as Elizabeth could remember. When he drank, he was verbally abusive, violent, and careless. She recalled having conversations with her father. She did not recall ever seeing her father and Turner have a conversation.
Id.:
116. When the children were small, the father provided little cans of Coors beer for them to drink when they went on outings in the family station wagon. After giving the children beer, he would drive them to the country and drive very fast. The children felt it was exciting because they didn’t realize the danger.
Id.:
126-28. He had been drinking also.
Id.:
166. As Elizabeth stated in her November 27, 1994 declaration, EHT Exhibit 16,
40
when the father drove the children out to the country and they would pick fruit off of trees without permission of the owners, she believed they were stealing.
See
EHT Exhibit 16, ¶ 14. She clarified at the evidentiary hearing that she held her belief about stealing the fruit when she was a child, not just in retrospect.
Id.:
165.
Elizabeth was aware that Turner and their cousin Phillip smoked marijuana. Wben he was a sophomore or a junior in high school, Turner told her that he also had used PCP, although she never saw him use it.
Id.:
129-30. She was familiar with the smell of marijuana, and she smelled it on Turner’s clothes. Also, Tur
*1043
ner’s eyes were bloodshot. This was a frequent occurrence.
IcL:
132-33. Turner’s marijuana use preceded his detention at CYA.
Id:
135. She didn’t actually see Turner smoking, but she knew he did so because of the smell.
Id:
175-76.
She remembered the occasion where the father took the children (Evelyn, Turner, and Elizabeth) to an irrigation ditch embankment with their legs dangling over the edge. The father sat with the children, but did not hold on to them. Elizabeth was frightened of falling into the rough waters below. No one else was around except the three children and the father. He did not explain why they were there. It was not a form of recreation to Elizabeth.
Id:
123-25. There were other irrigation ditch occasions, but Elizabeth did not remember them in detail.
Id.:
169. Elizabeth testified she had no positive memories of her father relative to her siblings and herself.
Id:
137.
Elizabeth recalled fights between her father and mother as early as when she was six years old.
Id:
116. The parents verbally argued every week and had physical confrontations every three or four months.
Id:
118. After physical fights, the mother would have “knots on her head, ... visible in the back and the front.” She also had black eyes. Elizabeth did not believe her mother ever sought medical attention for her injuries. The father did not appear injured.
Id:
119. The children could hear and see the physical fights.
Id:
120. As a child, Turner spent time alone in the backyard of the house or in his room. He did not interact with the family.
Id:
146. Because the fights lasted for a significant duration, Turner was present when the parents fought; he didn’t stay in the backyard when the parents were fighting.
Id:
147. There was one memorable fight after the parents were separated — with the mother and children living with relatives and the father in the family home. The mother wanted him to move out so she could move back in with the children and he refused to leave. She then proceeded to break out the front windows with a frying pan and break out the windows of his car. At that point, “he came at her and they just started fighting.” Elizabeth believed the police were called.
Id:
121. The parents actually were divorced “much after” this event.
Id:
145. After the father moved in with another woman and her children down the street, he did not come back to visit with the children or take them on outings.
Id:
134. Elizabeth also did not recall any further physical confrontations between her parents when the father moved in with the other woman.
Id:
145-46.
Turner had a stuttering problem when he was in school, through junior high.
Id:
125. Turner also had a low comprehension level for learning.
Id:
126. On cross examination, she agreed that he eventually received help for his learning problems, and further that their cousin Phillip helped tutor Turner.
Id:
170. Turner was put in remedial classes.
Id:
171.
As Elizabeth stated in her declaration, Turner was a gentle person and “willing to let anything go.”
See
EHT Exhibit 16, ¶ 6. Elizabeth denied that Turner “beat up a bicycle with a hammer or a baseball bat.” She denied that she and Patsy Roebuck, the daughter of Faye Hill, were ever good friends.
Id:
172. Elizabeth also denied that she had been good friends with Patsy’s sister, Juanita. She denied being aware of an incident where Turner and “some of his cousins jumped one of Patsy’s brothers.” She admitted, however, that there was rivalry between the Turner children and the children of Faye Hill.
Id:
173. She also recalled the incident when Turner and Dexter Barber fought over Dexter calling their cousin Phillip a “fag-got” or a “punk” and then calling Turner a “faggot.”
Id:
174. To the question, “he
*1044
[meaning Turner] kicked Dexter’s butt; didn’t he?” Elizabeth responded, “I guess yes.” She further explained that this confrontation with Dexter had been building up for some time and finally escalated.
Id.:
175. This fight occurred long after the father had imparted his knowledge of fighting on Turner.
Id.:
184.
(3) Oweida Doxey
Oweida Doxey was Turner’s youngest sister, seven years younger than Turner. EHT-2: 419. She attended every day of her brother’s trial. She was 15 or 16 at the time. Prior to the trial, she was interviewed by an investigator (Ray Brown) hired by the defense attorney and a Merced County Sheriff detective.
Id.:
420-21. She did not talk to anyone about her (and Turner’s) family background, either before the guilt phase or between the guilt phase and the penalty phase. She would have been willing to testify about the father’s alcoholism and abuse.
Id.:
421-22. She recalled that when the detective came to interview her, she was asked whether Turner was gay.
Id.:
423. She responded that the family was anti-gay because homosexuality was contrary to their Christian beliefs.
Id.:
423.
Oweida remembered family interaction when she was as young as three or four years old. She recalled that her father was very mean to Turner and that he would thump Turner, all the time, everyday. The mother was not present when this happened.
Id.:
424. The father also would make Turner stay in his room, away from his sisters, for long periods of time. Her father was drinking when he inflicted these punishments. She didn’t recall her father ever being sober, or at least not using alcohol.
Id.:
425-26. The father never imposed corporal punishment on Oweida. The father also verbally belittled Turner, calling him “dumb and stupid and idiot” everyday. She was not aware at the time that Turner had difficulties with school.
Id.:
426. The parents fought in front of the children. She specifically remembered the fight where the mother was knocking out the windows in the house with a frying pan and also using a knife to slash the father’s car tires. The mother’s attempts at breaking the car windows with the frying pan were unsuccessful.
Id.:
427-28. After the parents separated, the mother was sad and depressed. Although she worked, she slept quite a bit; she didn’t cook and she didn’t clean.
Id.:
428-29.
Oweida never actually observed Turner using drugs.
Id.:
429. She did, however, observe behavior that she associated with drug use, that is, he was “spacey” and couldn’t remember or understand simple directions (like going to the store).
Id.:
430. She also smelled marijuana on Turner when he was in high school.
Id.:
431. He never came home drunk on alcohol and as far as she knew, he didn’t drink alcohol.
Id.:
444.
The Warden’s counsel contrasted this testimony with what he said was her statement to Detective Strength shortly after the crime, that she believed he (Turner) “didn’t take any type of drugs at all.” The transcript of the interview states as follows:
Q. (by Detective Strength) “Do you know if he [Turner] takes any type of drugs at all?”
A. (by Oweida) “I don’t know; (Laugh)I don’t know. (Laugh).”
Q. “Do you know if he takes any type of drugs at all?”
A. “I don’t know. I’m not saying he does it, ah you know — ”
EHT Exhibit 109: EH 146.
41
At the evidentiary hearing, Oweida testified that she “had no idea why he [Detec
*1045
tive Strength] was asking the questions.” She “didn’t know what to tell him, so [she] said [she] did not know.” EHT-2: 444. In fact, Oweida did know that her brother used drugs. She just didn’t admit that to Detective Strength because she didn’t know who he was or even if he was a law enforcement officer.
Id.:
445^46. She remembered that when the mother asked Turner if he wanted help for his drug use that he said yes.
Id.:
452. On redirect, Oweida was asked about the laughter recorded in the interview with Detective Strength when she was asked about Turner’s use of drugs. Oweida affirmed that she was 15 years old at the time of the interview and had a tendency to giggle when she was nervous.
On cross examination, the Warden’s counsel asked Oweida about the defense investigator’s interview. She only recalled the investigator interviewing her mother and her.
Id.:
435. Oweida also recalled Turner spending time in the backyard.
Id.:
436. Focusing on one particular incident when the father thumped Turner, reference was made to Oweida’s November 27, 1994 declaration, EHT Exhibit 17, at paragraph 10,
42
which provides:
Another memory of my father is at our house at the dinner table. He was yelling an cursing at Brother [Turner’s nickname]. He got up from the table and “thumped” Brother in the head. Thumping was something my father did with his knuckles that hurt much more than a regular slap. Brother ran into his bedroom and my father followed him into his room. I don’t remember what my father did to him in there, I only remember hearing Brother cry hysterically. I didn’t realize how very painful thumping was until a classmate of min[e] did it to me in high school.
Oweida didn’t know why the father punished Turner in this manner on this occasion. He thumped Turner other times as well. EHT-2: 438.
After Turner was paroled from prison in September 1983 and had a job with Cross Construction, the father sometimes took Turner to work. She denied that Mr. Turner came by the house every day to take Turner to work. She did not concede that the relationship between Turner and the father was “better” at this time, although she did state that the father was no longer hitting or thumping Turner.
Id.:
450.
At some point, Turner had a job and was contributing to the household, including giving Oweida an allowance.
Id.:
439. In her 1994 declaration, she averred that Turner was the most gentle and even tempered person she knew. EHT Exhibit 17, ¶ 16. The Warden’s counsel brought up incidents to impeach this description of Turner. She was not aware that Turner had on one occasion “tore up a bicycle” of one of her sister’s boyfriends. She was aware of the rivalry between the children of Faye Hill (who were then being taken care of by her father) and her siblings.
43
She denied knowing or ever hearing that Turner and cousins “jumped one of the
*1046
Hill boys, beat him up.” EHT-2: 440. The feeling between the Turner children and the children of Faye Hill was one of dislike and hatred because their father “was taking care of somebody else’s kids and not taking care of his own.... [W]hat intensified those feelings is that he [the father] had to pass [Oweida’s] house every day and saw that [his own children] were in lack and yet still did not provide.”
Id.:
457.
Oweida recalled Turner telling about his incarceration at CYA. He told her that a person had to protect himself or he would be a “punk,” meaning “wimp.”
Id.:
440. On re-direct, Oweida confirmed that “punk” did
not
mean “homosexual.” What she meant was that Turner could not be bullied.
Id.:
456. In her November 27, 1994 declaration she stated Turner told her he a person had to fight or else he would “be a woman.” EHT Exhibit 17, ¶ 19. She recalled that statement as well.
Id.:
440. Oweida recalled a fight between Turner and Dexter Barber. She did not know what it was about.
Id.
During an interview with an investigator hired by Turner’s habeas counsel, she said that Turner was obliging and complacent only with his mother and father. If the father hit him, he didn’t strike back. But, Turner “wasn’t a punk, and nobody else could run over him.” EHT Exhibit 124. Oweida affirmed this statement on cross examination. EHT-2: 443.
(4) Ruth Evelyn Turner
The post-conviction testimony of Mrs. Turner before the Court is derived from a transcription of a tape-recorded interview Detectives Henry Strength and Jill Mayer conducted of Mrs. Turner on April 18, 1984, and offered by the Warden, two declarations executed by Mrs. Turner, offered by Turner, and Mrs. Turner’s evidentiary hearing testimony. The interview transcript was admitted without objection as EHT Exhibit 108.
See also
EHT Exhibit 106: EH078 (giving the date for Detective Strength’s interview with Mrs. Turner).
44
Mrs. Turner executed the first of the two declarations on July 20, 1993. EHT Exhibit 8. This declaration originally was considered by the Court as Exhibit 8 to the Petition and summarized in the April 27, 1999 Order, at Part II.C.3.b. and 4.g. The Warden interposed a general objection to the entire declaration to the extent it contained hearsay. The Court sustained the hearsay objection as to statements attributable to Mrs. Turner’s friends concerning their observations of Turner’s behavior (in ¶¶ 4, 5) and also statements attributable to her cousin about Turner’s behavior (in ¶ 8). With respect to Mr. Ellery’s statement about finding witnesses to corroborate Mr. Savage’s homosexuality (in ¶ 14), the objection was reserved to ascertain if his statement could be admissible as a prior inconsistent statement (Fed. R.Evid. 801(d)(1)).
See
June 19, 2003 order (doc. 203). Since Mr. Ellery did not deny this account, the prior inconsistent statement rule does not apply, and the statement must be excluded.
45
The reserved objection is sustained. The second declaration of Mrs. Turner was executed in August 1994,
46
EHT Exhibit 13, and previously considered by the Court as Exhibit 17 to the Petition in the April 27, 1999 Order, at Part Il.C.l.a. The Warden inter
*1047
posed, a general hearsay objection to this declaration. The Court overruled this objection in the June 19, 2003 order (doc. 231) noting: “This is a 38-page declaration in which Mrs. Turner describes the history of her horrible childhood, marriage, and employment as well as her sacrifices as a mother. The declaration testimony will be credited by the Court to the extent it is relevant and reliable.”
Prior to Mrs. Turner’s penalty phase testimony, Mr. Ellery met with her at her mother’s (Turner’s maternal grandmother’s) house. EHT-2: 473. She recalled that this meeting was close in time before the trial. EHT-3: 578. Despite this meeting, she had no idea what questions Mr. Ellery was going to ask her during the penalty phase of the trial. She was unprepared. EHT-2: 481. Separately, defense investigator Ray Brown met with Mrs. Turner.
Id.:
474. During the interview with this defense investigator, she was not asked about and did not discuss her ex-husband’s alcoholism or the effect his drinking had on the children.
Id.:
481. She wasn’t told and she didn’t know such family background issues could have been considered by the jury during penalty proceedings.
Id.:
482. Mrs. Turner also went to Merced to talk to an assistant district attorney, but she testified she didn’t tell anyone about Turner’s drug problem. EHT-2: 475. During cross examination, Mrs. Turner was shown the transcript of her interview with Detectives Strength and Mayer, in which she did reveal her son had a drug problem, Accordingly she conceded she had mentioned the drug problem. She did not know, however, whether she mentioned it to Mr. Ellery. EHT-4: 701.
After the penalty phase proceedings were complete, Mr. Ellery told Mrs. Turner he hadn’t been prepared for the penalty phase. He was apologizing to her. EHT-3: 523-24. He told her that he did the best he could given the fact that he had to live in the community. She understood him to mean that he didn’t more clearly or aggressively develop evidence about Mr. Savage’s homosexuality because he felt pressure from the community, possibly including the mayor, who spoke at Mr. Savage’s funeral.
Id.:
525. She recalled the occasion when Mr. Ellery came to her mother’s house to talk to her about having people testify on Turner’s behalf. Mrs. Turner testified that Mr. Elijah Barber had been present at that meeting.
Id.:
526-27. She believed Mr. Ellery asked her about Turner’s father when he came to interview her before the trial.
Id.:
529. Defense investigator Ray Brown also came out to talk to her on one occasion, mainly to obtain a photograph of Turner so he could show it to other people he planned to interview.
Id.:
530.
Mrs. Turner described the eleven years she lived with Turner’s father and his drunken outbursts. In front of the three oldest children, when they were very small and the family was living in an apartment, the father would hit and push Mrs. Turner.
Id.:
483. She described one incident that began with him pouring a glass of water on her head as she lay down followed by a verbal challenge and ensuing physical contact. Besides hitting and pushing her, Mr. Turner banged her head against the wall. When she tried to use the telephone to call her mother for help, he yanked the telephone from her and used it to strike her some more. When she tried to hit him with a chair, he took it from her and hit her in the head (with his hands). She ended up with a knot on her head but did not seek medical attention and did not contact the police.
Id.:
484.
47
Turner was
*1048
about two or three during this confrontation. There were other physical confrontations, in the range of a couple times a year, depending upon when Mr. Turner came home drunk.
Id.:
485. The frequency of Mr. Turner’s drinking and intoxication increased during their ten (or eleven) years together. In addition to physical confrontations, there was a lot of yelling, as frequently as once or twice a week. Mrs. Turner feigned sleep when Mr. Turner came home, so she wouldn’t have to interact with him.
Id.:
486.
When Turner was nine or ten, Mr. and Mrs. Turner were involved in a physical confrontation in which Mr. Turner hit Mrs. Turner in the head. She sustained a lump. Mr. and Mrs. James Warren (neighbors) broke up this fight when Evelyn ran across the street to get help. EHT-3: 503-04. Another physical fight started when Mr. Turner became angry when he saw a basket of clean, folded clothes in a laundry basket in the living room couch.
48
He kicked the basket over complaining to Mrs. Turner that the clothes should have been put away. The couple engaged in name-calling and then Mr. Turner hit Mrs. Turner on her head- — -all while the children were home. EHT-2: 493. During further testimony about this incident, Mrs. Turner testified that Mr. Turner came in the house from a neighbor’s and knocked the basket over because he was intoxicated. It is unclear from the second description whether the act of knocking over the basket was intentional. EHT-3: 504. The fight between Mr. and Mrs. Turner following the clothes basket included name calling, Mr. Turner hitting Mrs. Turner, and finally Mrs. Turner retreating into the kitchen to obtain two knives. She did not know whether Turner saw her threaten Mr. Turner with the knives. EHT-4: 722-24. At various times when Mr. and Mrs. Turner had been arguing, Mr. Turner would strike a karate stance pose, holding his leg up like he was going to attack her in a karate movement. The children all observed this. EHT-3: 546. When Mr. Turner would start a fight (by hitting Mrs. Turner), Mrs. Turner didn’t “just sit there.” She fought back.
Id.:
560-61. She finally left Mr. Turner because she couldn’t take the drinking and the beatings any more. She clarified that she left because she was being beaten. She did not believe the children were being beaten (as is stated in her August 1994 declaration).
Id.:
562; EHT Exhibit 13, ¶ 25.
When the Turners finally separated, Mr. Turner stayed in the family home and Mrs. Turner moved in with her mother, nearby. She took Turner to live with her there. After eleven months of living with her mother, Mrs. Turner returned to the family home and demanded that Mr. Turner move out. EHT-3: 505. She wanted to move back in the house with the children because she couldn’t find a big enough place for all them. They started fighting. Mr. Turner tried to push Mrs. Turner’s head into a rotary fan. Mrs. Turner then grabbed a pot from the stove and hit him with it. All the children were present witnessing this confrontation. Evelyn was yelling for her father to leave her mother alone; Turner was yelling that he was going to kill his father.
Id.:
508. Mrs. Turner finally did regain possession of the house after the intervention of the court system. She moved back into the house with all four children while Mr. Turner moved in with Faye Hill and her five children d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2474522. Public record. Not legal advice.