Appendix — Woodford v. Visciotti
Supreme Court brief2002
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C2 -1(37
No.
IN THE SUPREME COURT OF THE UNITED STATES
JEANNE WOODFORD, Warden, Petitioner,
v.
JOHN LOUIS VISCIOTTI, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDICES TO PETITION FOR WRIT OF CERTIORARI
BILL LOCKYER
Attorney General of the State of California
ROBERT R. ANDERSON
Chief Assistant Attorney General
GARY W. SCHONS
Senior Assistant Attorney General
FREDERICK R. MILLAR, JR.
Deputy Attorney General
JOHN T. SWAN
Deputy Attorney General
Counsel of Record
110 West “A” Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2211
Fax: (619) 645-2191
Counsel for Petitioner
INDEX TO APPENDICES
APPENDIX A
United States Court of Appeals
For the Ninth Circuit’s Opinion l
APPENDIX B
United States District Court
Central District of California’s Judgment 75
APPENDIX C
United States District Court
Central District of California’s
Order Limiting Scope of Evidentiary Hearing 78
APPENDIX D
California Supreme Court’s Opinion
on Habeas Corpus 80
APPENDIX E
California Supreme Court’s Opinion on Appeal 181
APPENDIX F
California Penal Code section 190.3 328
APPENDIX A .
APPENDIX A
[Filed April 24, 2002]
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN LOUIS VISCIOTTI, )
)
Petitioner-Appellee- ) Nos. 99-99031
Cross-Appellant, ) 99-99032
)
v. ) D.C. No.
) CV 97-04591-R
JEANNE WOODFORD, Warden of _)
California State Prison at San ) OPINION
Quentin, )
) )
Respondent-Appellant- )
Cross-Appellee. )
)
Appeal from the United States District Court
for the Central District of California
Manuel Real, District Judge, Presiding
Argued and Submitted
December 6, 2001 - Pasadena, California
Filed April 24, 2002
Before: Harry Pregerson, A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judges Pregerson and Tashima;
Dissent by Judge Pregerson
SUMMARY
Criminal Law and Procedure/Right to Counsel
The court_of appeals affirmed a judgment of the district
court. The court held that in a Sixth Amendment right to
counsel case, defense counsel does not on his client at a
critical stage of his felony murder rule trial, warranting a
presumption of prejudice, by conceding in his closing argument
that there was no reasonable doubt that the client was guilty of
first degree murder, when counsel also argues that: the evidence
against his client was not overwhelming; there were factors that
could be decided in favor of innocence under the reasonable
doubt standard; the murder was not premeditated; his client
lacked the specific intent to kill; and his client was not a cold-
blooded killer.
Appellant John Visciotti,.a California state prisoner, was
convicted in California state court of first degree murder,
attempted murder, and robbery, and sentenced to death. During
his trial, the prosecution had adduced the testimony of the
surviving victim, Michael Wolbert, who knew Visciotti from his
workplace and unambiguously identified him as the man who
had robbed and shot Timothy Dykstra and Wolbert, killing
Dykstra. The prosecution had also introduced two videotapes in
which Visciotti confessed to his plan and intent to rob the men
and his knowing and intentional shooting of them during the
course of that robbery. One of the videotapes, referred to by the
state court as a "reenactment," featured Visciotti at the scene of
the crime admitting to his involvement in the robbery and
shootings, describing the chain of events, and even pointing out
the locations where the individual events had transpired.
Visciotti’s counsel, Roger Agajanian had put on a defense
mental health expert, made objections, and cross-examined the
prosecution’s witnesses. Agajanian conceded in his closing
argument that there was no reasonable doubt that Visciotti was
guilty of first degree murder. However, Agajanian explicitly
argued ut closing that the evidence against his client was not
overwhelming and that there were factors that could be decided
in favor of innocence under the reasonable doubt standard.
Agajanian also argued that the murder was not premeditated, that
Visciotti lacked the specific intent to kill, and that Visciotti was
not a cold-blooded killer.
The California Supreme Court affirmed Visciotti’s
conviction. Visciotti petitioned for a writ of habeas corpus in the
California Supreme Court, claiming that Agajanian provided
ineffective assistance of counsel during the penalty phase due to
his deficient preparation and performance. The California
Supreme Court denied Visciotti’s petition, assuming that
Agajanian provided constitutionally inadequate representation
during the penalty phase, but concluding that these inadequacies
did not prejudice the jury’s sentencing decision.
Visciotti filed a federal habeas petition and the district court
granted Visciotti’s habeas petition as to his sentence, finding that
Visciotti had been denied effective assistance of counsel during
the penalty phase. However, the district court determine J that
Aeituteate performance during the guilt phase of the trial was
not unconstitutionally deficient or prejudicial.
Visciotti appealed the decision to deny habeas relief on his
ineffective assistance of counsel claim as to his conviction.
{1} To prevail on a claim of ineffective assistance of
counsel, a petitioner must show that: (1) counsel’s performance
was deficient; and (2) the deficient performance prejudiced the
defense. [2] To demonstrate prejudice, a defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
{3} The strength of the prosecution’s evidence against
Visciotti for first degree murder under the felony murder rule
and for attempted murder made it highly unlikely that even a
highly competent performance by Agajanian could have altered
the jury’s verdict. To convict Visciotti under the felony murder
rule, the jurors were not required to find malice or premeditation;
the only criminal intent required was the specific intent to
commit the robbery. [4] The evidence against Visciotti,
including Wolbert’s testimony about Visciotti’s demeanor at the
time of the crime and Visciotti’s own videotaped recollection of
the details of his plans to rob and the subsequent robbery of
Wolbert and Dykstra, was substantial and convincing. In light
of this strong inculpatory evidence and the weakness of any
contrary evidence, even a highly competent performance by.
Agajanian at the guilt phase would not have affected the verdict.
[5] In Sixth Amendment right to counsel cases, the
Supreme Court has presumed prejudice where there are
circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is uniustified.
This exception is limited to the complete denial of counsel and
comparable circumstances, including: (1) where a defendant is
denied p ee at a critical stage of his trial; (2) where counsel
entirely fails to subject the prosecution’s case to meaningful
adversarial testing; (3) where the circumstances are such that the
likelihood that any lawyer, even a fully competent one, could
provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the aenil conduct
of the trial; and (4) where counsel labors under an actual conflict
of interest. Apart from circumstances of this nature and
magnitude, there is generally no basis for finding a Sixth
Amendment violation unless the accused can show how specific
errors of counsel undermined the reliability of the finding of
guilt.
[6] Although Agajanian’s overall performance at the guilt
phase of the trial may well have been deficient, the record
demonstrated at least some efforts by Agajanian to advocate
Visciotti’s case during the guilt phase. There was also nothing
in the record to indicate that Agajanian had a conflict of interest,
sympathized with the prosecution, was hostile to his client, or
wanted him to be convicted. Under these circumstances, it could
not be concluded that Agajanian’s overall performance at the
guilt phase entirely failed to subject the prosecution’s case to
meaningful adversarial testing, or that Agajanian left Visciotti
completely without representation at the guilt phase.
[7] The record also did not support the contention that
Agajanian abandoned Visciotti at a critical state of his trial by
conceding in his closing argument that there was no reasonable
doubt that Visciotti was guilty of first degree murder.
Agajanian’s closing argument, although it could be icttiaad as
deficient and ineffective, could not properly be characterized as
an abandonment of his client, warranting a presumption pt é
prejudice. [8] Agajanian explicitly argued at closing that the i y,
evidence against his client was not overwhelming and that there
were factors that could be decided in favor of innocence under
the reasonable doubt standard. [9] Agajanian also argued that
the murder was not premeditated, that Visciotti lacked the
specific intent to kill, and that Visciotti was not a cold-blooded
killer. {10} Thus, Agajanian’s guilt-phase representation did not
make the adversary process itself presumptively unreliable. [11]
The California Supreme Court’s decision that Visciotti failed to
make a prima facie case of ineffective assistance of counsel at
the guilt phase of the trial was not objectively unreasonable.
Because the record did not support a finding of clear error, it had
to be concluded that the state court reasonably applied clearly
established federal law, as determined by the Supreme Court of
the United States; therefore, the district court’s denial of
Visciotti’s claim of ineffective assistance of counsel at the guilt
phase of the trial had to be affirmed.
Judge Pregerson dissented, writing that Visciotti’s claim of
ineffective assistance of counsel during the guilt phase should
have been granted because Agajanian’s deficient performance
during the guilt phase was per se prejudicial.
COUNSEL
10
John T. Swan, Deputy Attorney General, San Diego, California,
for the respondent-appellant-appellee.
William H. Forman and Statia Peakheart, Deputy Federal Public
Defenders, Los Angeles, California, for the petitioner-appellee-
cross-appellant.
11
OPINION
PREGERSON, Circuit Judge, authored Sections I, II, and III B,
with which Judges Tashima and Berzon concur. TASHIMA,
Circuit Judge, authored Section III A, with which Judge Berzon
concurs, and from which Judge Pregerson dissents.
John Visciotti ("Visciotti"), a California state prisoner, was
convicted of first degree murder, attempted murder, and robbery,
and sentenced to death. After exhausting his claims in state
court, Visciotti brought a federal habeas petition alleging, among
other claims, ineffective assistance by his counsel during the
guilt and penalty phases of his trial. The district court granted
Visciotti’s habeas petition as to his sentence but denied habeas
relief as to his conviction. Warden Woodford appealed and
Visciotti cross-appealed the district court's decision. We affirm
the district court’s decision in its entirety./
1. We review a district court’s decision to dismiss a
petition for writ of habeas corpus de novo. Miles v. Prunty, 187
F.3d 1104, 1105 (9th Cir. 1999).
12
The following events, as described by the California
Supreme Court, led to Visciotti’s prosecution and conviction.
[Visciotti] and Brian Hefner, both of whom had
been employed as burglar alarm salesmen by Global
Wholesalers in Garden Grove [California], and who
shared a motel room, were fired by their employer on
November 8, 1982. Because their final paychecks
were insufficient to cover future rent, they devised a
plan to rob fellow employees who were also to be paid
on that date. The pair waited in the company parking
lot until another group of employees, among whom
were [Timothy] Dykstra and [Michael] Wolbert,
returned from their shifts. They invited Dykstra and
Wolbert to join them at a party which, they claimed,
was to be held at the home of friends in the Anaheim
Hills area.
Dykstra and Wolbert agreed to go to the party.
They did not know [Visciotti] and Hefner well,
however, and were cautious. They insisted on driving
in Wolbert’s car. They also removed most of their
cash from their wallets and hid it behind the dashboard
of their car. After leaving [Visciotti’s] car at an
apartment complex, the four drove to a remote area on
Santiago Canyon Road where [Visciotti] asked
Wolbert to stop so that defendant could relieve
himself. It was then between 7 and 9 p.m.
All four men left the car, Dykstra getting out first
to permit [Visciotti] to leave. After the other three
men left the car, Wolbert saw a gun in [Visciotti’s]
waistband. Wolbert then left the car and when he next
13
\
looked at [Visciotti} he saw that [Visciotti] and
Dykstra were standing face-to-face about two feet
apart, with [Visciotti] holding the gun pointed at
Dykstra. [Visciotti] demanded the victims’ wallets.
Wolbert told [Visciotti] where the money was hidden.
Dykstra and Wolbert then stayed on an embankment,
several feet apart, while Hefner searched for the
money.
[Visciotti] moved to stand by Wolbert, who asked
[Visciotti] to let them go, told him to take the car and
the money, and assured him that he would not identify
him. When Hefner left the car, [ Visciotti] moved back
toward Dykstra who was sitting down. [Visciotti]
then raised the gun in one hand and shot Dykstra from
a distance of about three or four feet. . . .
After [Visciotti] shot Dykstra, Wolbert stood up
and stepped back. [Visciotti] approached Wolbert,
who was backing up, raised the gun in both hands, and
shot Wolbert three times... .
In spite of his life-threatening wounds, Wolbert
did not lose consciousness. He heard defendant and
Hefner get into the car and drive oack down the road.
He was later able to attract the attention of passersby
who summoned aid. He identified his assailants as
fellow employees at Global Wholesalers. Dykstra was
dead when paramedics arrived. Wolbert was
transported to the hospital where he underwent
surgery. On the following morning, he identified both
defendant and Hefner in a photographic lineup,
identifying [Visciotti] as the person who had shot him
and Dykstra.
14
[Visciotti] and Hefner were arrested as they left
their motel room about 9 a.m. on the morning after the
robbery and murder. The murder weapon, a .22-
caliber single action revolver which still held six
expended shell cases in the cylinder, was found hidden
in a space behind the bathroom sink. [Visciotti]
confessed his involvement and, at the request of the
investigating officers, participated in a videotaped
reenactment of those events that had taken place in
Santiago Canyon.
Analysis of a sample of [ Visciotti’s] blood, taken
at approximately noon on November 9, 1982, revealed
no alcohol, amphetamines, opiates, barbiturates, or
phencyclidine (PCP). Cocaine and benzoylecgonine,
a metabolite of cocaine, were present, however.
People v. Visciotti, 2 Cal. 4th 1, 28-30 (1992).
Roger Agajanian ("Agajanian") was retained by Visciotti’s
father to represent Visciotti during pretrial proceedings, through
trial, and on appeal. Agajanian was admitted to the California
bar in July 1973. Jn re Visciotti, 14 Cal. 4th 325, 336 (1997).
He had never tried a capital case that went to a jury or conducted
a penalty phase trial before representing Visciotti, though he had
represented clients charged with murder. /d. at 336. Agajanian
was suspended from the State Bar of California in 1990, 1991,
15
and 1993, and resigned from the California bar in 1994. Id. at
349 n.6.
Trial Proceedings
Visciotti was tried by a jury in July 1983 in the Superior
Court of the State of California, County of Orange. During the
guilt phase of Visciotti’s trial, the surviving victim, Michael
Wolbert, testified on behalf of the prosecution. The prosecution
additionally introduced as evidence Visciotti’s videotaped
confession and reenactment.
Dr. Louis Broussard ("Dr. Broussard") testified as a witness
for the defense. Dr. Broussard testified that Visciotti “had
minimal brain injury of a type associated with impulse disorders
and specific learning disorders." Visciotti, 2 Cal. 4th at 32. He
2. In December 1985, while representing Visciotti on
appeal, Agajanian was convicted of two counts of criminal
contempt in the District of Vermont. Jn re Visciotti, 14 Cal. 4th
at 349 n.6. “Evidence was admitted at the [state habeas]
evidentiary hearing that during the time he represented
[Visciotti], Agajanian did not respond to client communications,
failed to make court appearances, did not visit clients in jail or
show up in court or other places as promised, and was distracted
by a civil suit against a nonlawyer who shared his office.” Id.
16
admitted duh cross-examination, however, that he had not
reviewed Visciotti’s videotaped confession and reenactment, and
would have conducted additional psychological testing and
additional interviews had he had enough time to do so.
Visciotti testified on his own behalf. During Agajanian’s
direct examination, Visciotti described the night of the crimes
consistently with the videotaped confession and reenactment.
Agajanian also elicited information from Visciotti about his prior
juvenile and misdemeanor offenses. Visciotti also admitted that
he had been convicted of assault with a deadly weapon, and
described the facts underlying this felony conviction. Visciotti
testified that the assault occurred after two men broke down the
door to his motel room and one, William Scofield ("Scofield"),
cut Visciotti’s roommate’s throat with a knife, while a third man,
armed with a gun, stood at the doorway. Visciotti testified that
when the three men fled, Visciotti picked up the knife dropped
by Scofield, ran after the men, and stabbed Scofield outside
Scofield’s motel room.
17
The prosecution contradicted Visciotti’s description of the
circumstances of the assault through its cross-examination of
Visciotti and through the testimony of a police officer the
prosecution called as a rebuttal witness. The prosecution elicited
testimony from Visciotti and the police officer that Visciotti had
broken into Scofield’s room and stabbed both Scofield and
Kathy Cusack ("Cusack"), a pregnant woman who was in
Scofield’s bed at the time.
The jury found Visciotti guilty of murder, attempted
murder, and armed robbery, with a special circumstance finding
that the murder was committed during the commission of a
robbery.
3. Under California law, a defendant who is found
guilty of first degree murder will be sentenced to death or life
imprisonment without the possibility of parole if one or more
“special circumstances” are found. Cal. Penal Code § 190.2.
The statute includes twenty-two “special circumstances,” among
them that “[t]he murder was committed while the defendant was
engaged in, or was an accomplice in, the commission of,
attempted commission of, or the immediate flight after
committing, or attempting to commit” several felonies,
including robbery. Cal. Penal Code § 190.2(17).
During the penalty phase of Visciotti’s trial, Scofield and
Cusack* testified for the prosecution in support of its case in
aggravation. Scofield’s and Cusack’s descriptions of the
circumstances underlying Visciotti’s assault conviction were
consistent with that of the police officer who testified during the
guilt phase. Agajanian called Visciotti’s parents and siblings to
testify during the penalty phase. As Agajanian later explained,
his mitigation strategy was to elicit sympathy for Visciotti’s
family "in an attempt to make it more difficult for the jury to
decide this family’s one stray, its son and brother, should be
executed.” Jn re Visciotti, 14 Cal. 4th at 347. Visciotti was
sentenced to death.
On automatic appeal, the California Supreme Court
affirmed Visciotti’s conviction, with one justice dissenting.
People v. Visciotti, 2 Cal. 4th 1 (1992).
Habeas Proceedings
4. Cusack was called as a rebuttal witness during the
penalty phase.
19
Visciotti filed a petition for a writ of habeas corpus in the
California Supreme Court. The California Supreme Court
appointed a referee® to hold an evidentiary hearing and make
findings of fact relating to Visciotti’s claim that Agajanian
provided ineffective assistance of counsel during the penalty
phase. After the referee held the hearing and made findings of
fact, and after briefing on the merits, the California Supreme
Court denied Visciotti’s petition in its entirety, with one justice
concurring separately and two justices dissenting. /n re
Visciotti, 14 Cal. 4th 325. The California Supreme Court
assumed that Agajanian provided constitutionally inadequate
representation during the penalty phase, but concluded that these
inadequacies did not prejudice the jury’s sentencing decision.
Visciotti, with the assistance of court-appointed counsel,
filed a federal habeas petition on June 23, 1998. Judge Real of
the United States District Court for the Central District of
5. The referee was a judge of the Orange County
Superior Court. See In re Visciotti, 14 Cal. 4th at 329.
™
20
California held a three-day hearing on Visciotti’s claims (except
for Visciotti’s claim of ineffective assistance of counsel during
the penalty phase, as the state court had already held a hearing
on that claim). Following this evidentiary hearing, Judge Real
determined that Visciotti had been denied effective assistance of
counsel during the penalty phase, and granted Visciotti’s habeas
petition as to his sentence.® Judge Real also determined that
Agajanian’s performance during the guilt phase of the trial was
not unconstitutionally deficient or prejudicial and denied
Visciotti’s other claims.
The state timely appealed Judge Real’s decision to grant
habeas relief on Visciotti’s ineffective assistance of counsel
claim as to Visciotti’s sentence. Visciotti cross-appealed Judge
Real’s decision to deny habeas relief on Visciotti’s ineffective
assistance of counsel claim as to Visciotti’s conviction. Visciotti
6. Visciotti v. Calderon, No. CV 97-4591 R (C.D. Cal.
filed Oct. 8, 1999). The district court’s opinion will be referred
to as: “Dist. Ct.”
21
does not appeal Judge Real’s dismissal of Visciotti’s other
claims.
Il. Standard of Review
A federal court may grant a writ of habeas corpus to a state
prisoner only if the state court’s rulings "resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as duteciniied by the Supreme
Court of the United States" or were "based on an unreasonable
determination of the facts in light of the evidence presented” in
the state courts.” 28 U.S.C. § 2254(d). Under the "contrary to"
clause, a state court’s decision is contrary to federal law if it
"failed to apply the correct controlling authority from the
Supreme Court." Shackleford v. Hubbard, 234 F.3d 1072, 1077
(9th Cir. 2000); see also Williams v. Taylor, 529 U.S. 362, 405-
7. Visciotti’s petition is governed by the standards of 28
U.S.C. § 2254 because his habeas petition was filed after the
effective date of the Anti-Terrorism and Effective Death Penalty
Act, the statute which enacted the current standards governing
the granting of the writ of habeas corpus. See Lockhart v.
Terhune, 250 F.3d 1223, 1228 (9th Cir. 2001).
22
07 (2000); LaJoie v. Thompson, 217 F.3d 663, 667-68 (9th Cir.
2000); Van Tran y. Lindsey, 212 F.3d 1143, 1150 (9th Cir.
2000). A state court decision is an "unreasonable application"
of Supreme Court law if the state court "correctly identifies the
governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case." Williams, 529 U.S. at 407-08. In
order to warrant habeas relief, the state court’s-application of
clearly established federal law must be "objectively
unreasonable." /d. at 409.
III. Discussion
A. Agajanian’s are ORE During the Guilt Phase
Unlike its lengthy discussion concerning Agajanian’s
performance at the penalty phase of the trial, om California
Supreme Court denied Visciotti’s claim of ineffective assistance
of counsel at the guilt phase of his trial without providing a
reasoned explanation. Instead, the state court simply stated that
by issuing an order to show cause that was limited to counsel’s
penalty phase performance, it had "implicitly concluded" that the
23
other claims failed to "state a prima facie case." In re Visciotti,
14 Cal. 4th at 329 (citing People v. Miranda, 44 Cal. 3d 57, 119
n.37 (1987) (noting that the issuance of a limited order to show
cause in a habeas case is an implicit determination of petitioner’s
failure to make a prima facie case on the other claims in his
petition); People v. Bloyd, 43 Cal. 3d 333, 362-63 (1987)
(same)).
On habeas review, when there is no reasoned state court
decision to review, we must conduct "an independent review of
the record . . . to determine whether the state court clearly erred
in its application of controlling federal law." Delgado v. Lewis,
223 F.3d 976, 982 (9th Cir. 2000) (citing Van Tran, 212 F.3d at
1153). In doing so, because there is no state court decision, we
must "focus primarily on Supreme Court cases in deciding
whether the state court’s resolution of the case constituted an
unreasonable application of clearly established federal law."
Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001). Habeas relief
cannot be granted "simply because the California Supreme
24
Court's disposition of the case was inconsistent with our own
precedent.” Jd.
{1} To prevail on a claim of ineffective assistance of
counsel, a petitioner mine show that: (1) "counsel’s performance
was deficient; "and (2) "the deficient performance prejudiced the
defense." Strickland y. Washington, 466 U.S. 668, 687 (1984).
In this case, although it seems likely that Agajanian’s
performance at the guilt phase of the trial was deficient, we need
not resolve that issue because we conclude that Visciotti suffered
no prejudice as a result of the alleged éufiidenaies, See Mayfield
v. Woodford, 270 F.3d 915, 925 (9th Cir. 2001) (en banc) (citing
Strickland, 466 U.S. at 697).
[2] To demonstrate prejudice, a defendant must show that
there is a "reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." /d.
25
[3] The strength of the prosecution’s evidence against
Visciotti for first degree murder under the felony murder rule
and for attempted murder made it highly unlikely that even a
highly competent performance by Agajanian could have altered
the jury’s verdict. To convict Visciotti under the felony murder
rule, the jurors were not required to find malice or premeditation;
the "only criminal intent required [was] the specific intent to
commit the [robbery]." People v. Dillon, 34 Cal. 3d 441, 475
(1983) (internal quotation marks and citation omitted).
The prosecution adduced the testimony of the surviving
victim, Wolbert, who knew Visciotti from his workplace and
unambiguously identified him as the man who had robbed and
shot Dykstra and Wolbert, killing Dykstra. The prosecution also
introduced two videotapes in which Visciotti confessed to his
plan and intent to rob the men and his knowing and intentional
shooting of them during the course of that robbery. One of the
videotapes, referred to by the state court as a "reenactment," see
In re Visciotti, 14 Cal. 4th at 355, featured Visciotti at the scene
26
of the crime admitting to his involvement in the robbery and
shootings, describing the chain of events, and even pointing out
the locations where the individual events had transpired.
[4] There was only minimal evidence supporting a defense
that Visciotti lacked the ability to form the requisite intent for
the underlying robbery charge due to his drug use. On the other
hand, the evidence against such a claim, including Wolbert’s
testimony about Visciotti’s demeanor at the time of the crime
and Visciotti’s own videotaped recollection of the details of his
and Hefner’s plans to rob and their subsequent robbery of
Wolbert and Dykstra, was substantial and convincing. In hght
of this strong inculpatory evidence and the weakness of any
contrary ional are confident that even a highly competent
performance by Agajanian at the guilt phase would not have
affected the verdict.
[5] Visciotti contends, however, that Agajanian’s flawed
performance at the guilt phase of the trial requires the
application of the per se prejudice rule. In Sixth Amendment
27
right to counsel cases, the Supreme Court has presumed
prejudice where there are "circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified." United States v. Cronic, 466 U.S.
648, 658 (1984). Strickland, Cronic, and the cases that follow
Cronic have made clear that this exception is limited to the
"complete denial of counsel" and comparable circumstances,
including: (1) where a defendant "is denied counsel at a critical
stage of his trial"; (2) where "counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing”; (3) where
the circumstances are such that "the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is
so small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial"; and (4) where
"counsel labors under an actual conflict of interest." /d. at 659-
61, 662 n.31; see also Smith v. Robbins, 528 U.S. 259, 764-65
(2000) (noting that there is no presumption of reliability where
there has been a complete denial of counsel, where the state has
28
interfered with counsel’s assistance, or where counsel is
burdened by a conflict of interest); Penson v. Ohio, 488 U.S. 75,
88-89 (1988) (holding that a complete denial of counsel on
appeal requires a presumption of prejudice); Strickland, 466 U.S.
at 692 (noting an assumption of prejudice where there is an
“actual or constructive denial of . . . counsel altogether"). Apart
from circumstances of this nature and magnitude, "there is
generally no basis for finding a Sixth Amendment violation
unless the accused can show how specific errors of counsel
undermined the reliability of the finding of guilt.” Cronic, 466
U.S. at 659 n.26 (citing Strickland, 466 U.S. at 693-96).
[6] As noted above, Agajanian’s overall performance at the
guilt phase of the trial may well have been deficient. His
shortcomings included his insufficient investigation and
preparation for trial and the limited range of his defense
arguments. The foregoing notwithstanding, the record
demonstrates at least some efforts by Agajanian to advocate
Visciotti’s case during the guilt phase. Agajanian put on a
\
’
(
defense — health expert, Dr. Louis Broussard, made
objections, and cross-examined the prosecution's witnesses.
There is also nothing in the record to indicate that Agajaman had
a conflict of interest, sympathized with the prosecution, was
hostile to his client, or wanted him to be convicted. Under these
circumstances, we cannot conclude that Agajanian’s overall
performance at the guilt phase "entirely failed to subject the
prosecution’s case to meaningful adversarial testing,” Cronic,
466 U.S. at 659, or that Agajanian left Visciotti "completely
without representation at the guilt phase,” Penson, 488 U.S. at
88.
[7] The record also does not support the contention that
Agujenian abandoned Visciotti "at a critical stage of his trial” by
conceding in his closing argument that there was no reasonable
doubt that Visciotti was guilty of first degree murder. In United
States v. Swanson, 943 F.2d 1070 (9th Cir. 1991), the case on
which Visciotti and the dissent rely, this court concluded that the
defense attorney’s concession during closing arguments that
30
there was no reasonabie doubt that his client had intimidated the
victims and robbed the bank was an abandonment of the defense
of his client “at a critical stage of his trial” and a breakdown in
our adversarial system of justice. Unlike the defense attorney’s
closing argument in Swanson, however, Agajanian’s closing
argument, although it may be criticized as deficient and
ineffective, cannot properly be characterized as an
“abandonment” of his client, warranting application of the
Cronic exception and a presumption of prejudice.
[8] Although a few of Agajanian’s statements can be
interpreted as a concession of Viscioiti’s guilt as to the felony
murder portion of the charges,” unlike Swanson, 943 F.2d at
—
8. The dissent argues that Agajanian conceded
Visciotti’s guilt of felony murder twice in his closing argument.
Both statements, however, were made in the context of
Agajanian’s efforts to distinguish felony murder from
premeditated murder. Thus, the first statement was nothing
more than counsel’s statement of the law of felony murder,
rather than an admission of what the evidence showed. In his
second statement, Agajanian pointed out that eve.. if the jury
were to find Visciotti- guilty of first degree murder, it must still
conclude that the killing was “not premeditated.”
31
1077, Agajanian did not assert that the evidence against his
client was overwhelming, did not concede that his arguments
failed to rise to the level of "reasonable doubt,” and did not urge
the jury to entertain no reservations or regrets about reaching a
guilty verdict. a Agajanian explicitly argued at closing
that the evidence against his client was "not overwhelming" and
that there were factors that could be decided "in favor of
innocence” under the "reasonable doubt" standard.
{9} Agajanian also argued that the murder was not
premeditated and that Visciotti lacked the specific intent to kill.
He argued that the murder weapon did not belong to Visciotti;
that Visciotti had icstified to being “scared,” “paranoid,” and
"spaced out” at the time of the shootings; and that the evidence
of planning, including efforts to fool the victims about the
defendants’ place of residence, suggested that there was no intent
to kill. Agajanian also argued that Visciotti was not a cold-
blooded killer by emphasizing the role that Visciotti’s drug use
probably played in the robbery and shootings; noting the fact
32
that Visciotti claimed he was "loaded," that cocaine was found
in his blood, and that there is a close link between crime and
drug abuse; contending that Visciotti had shot Wolbert from a
greater distance than Wolbert testified to; and pointing out that
Visciotti had gotten sick and vomited after the shootings.
One can question Agajanian’s closing argument strategy of
——~
arguing that the crime was not premeditated and that Visciotti
was not a cold-blooded murderer, since the jury could convict
Visciotti of first degree murder under the felony murder rule
- without finding premeditation or a specific intent to kill. It is
important to keep in we however, the context in which
Agajanian was lawyering. This was a death penalty case in
which the prosecution was making a strong effort to portray the
murder and attempted murder as cold-blooded, premeditated,
and execution-like, and virtually no effective defense to the
felony murder charge was available for defense counsel to argue.
In that context, the focus of Agajanian’s closing argument on
disproving premeditation and the cold-blooded nature of the
——_——_»-- -
33
murder cannot fairly be characterized as an abandonment of the
client, as a jury might be less likely to impose the death penalty
on someone convicted of felony murder, as opposed to someone
who set out to commit a premeditated murder.”
[10] Thus, Agajanian’s closing argument, emphasizing the
role of drugs and the evidence that the killings were not
premeditated and that the defendant was not cold-blooded, was
not an “abandonment” of Visciotti under Cronic, however
deficient and ineffective it may have been. We thus conclude
that Agajanian’s guilt-phase representation did not "make the
9. The dissent argues that we have inappropriately
“hypothesized” a strategy on behalf of Agajanian by recognizing
his efforts to distinguish felony murder from premeditated
murder as a not unreasonable strategy. We note that, after the
verdict was returned, Agajanian attempted to ascertain whether
the verdict was based on felony murder or premeditated murder.
The trial judge, however, did not permit the jury to be polled on
that question. Thus, we have simply made a “fair assessment of
attorney performance” by considering the circumstances under
which Agajanian’s challenged conduct took place. See
Strickland, 466 U.S. at 689 (holding that because of the
difficulty of making such a fair assessment, “the defendant must
overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy’”
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
34
adversary process itself presumptively unreliable." See Cronic,
466 U.S. at 659 & n.26 (emphasis added). Visciotti must
therefore satisfy the Strickland test in order to prevail on his
claim of ineffective assistance of counsel at the guilt phase of his
trial. /d. He has not done so.
[11] Accordingly, we conclude that the California Supreme
Court’s decision that Visciotti failed to make a prima facie case
of ineffective assistance of counsel at the guilt phase of the trial
was not "objectively unreasonable." Because the record before
us does not support a finding of clear error, we conclude that the
state court reasonably applied clearly established federal law, as
determined by the Supreme Court of the United States; therefore,
we affirm the district court's denial of Visciotti’s claim of
ineffective assistance of counsel at the guilt phase of the trial.
10. We note that, while we take Swenson into account
in applying Cronic, Swanson does not independently qualify as
“clearly established Federal law, as determined by the Supreme
Court of the United States,” as required by 28 U.S.C. §
2254(d)(1), in order to serve as a ground for issuance of the
writ. See Van Tran, 212 F.3d at 1149.
35
B. Agajanian’s Performance During the Penalty Phase
Strickland also governs Visciotti’s claim that he received
ineffective assistance of counsel during the penalty phase.
Accordingly, to prevail on his penalty phase ineffective
assistance of counsel claim, Visciotti must show that
Agajanian’s performance was deficient and that his deficient
performance prejudiced Visciotti’s defense. Strickland, 466 U.S.
at 687. To establish prejudice, Visciotti bears the burden of
showing that "there is a reasonable probability that, but for
counsel’s professional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 688. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." /d. at 694. A “reasonable probability” is /ess than
a preponderance: "([t}he result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the
errors of counsel cannot be shown by a preponderance of the
evidence to have determined the outcome.” /d.
36
The California Supreme Court’s decision was "contrary to”
Supreme Court law because it mischaracterized Strickland’s
prejudice standard. Instead of evaluating whether there was a
reasonable probability that, absent Agajanian’s deficient
performance, the result of the proceedings would have been
different, the California Supreme Court evaluated whether a
more favorable result was probable absent Agajanian’s deficient
performance.” The California Supreme Court’s evaluation of
Visciotti’s ineffective assistance of counsel claim at the penalty
11. See Visciotti, 14 Cal. 4th at 330 (Visciotti “ha[d] not
demonstrated that . . . absent [Agajanian’s] failings it is
probable that a more favorable result would have been reached
by the penalty jury”) (emphasis supplied); id. at 355 (“We
cannot conclude that it is probable that the jury would have
found that the evidence of petitioner’s troubled family
background itself would have outweighed th[e] aggravating
evidence”) (emphasis supplied); id at 356 (“Under the
circumstances it is not probable that the jury would have found
evidence that petitioner’s childhood was troubled or that he
turned to drugs as a means of escape from an unbearable family
situation mitigating or sufficiently so that the evidence would
have affected the jury determination that the aggravating factors
outweighed the mitigating in this case”) (emphasis supplied).
37
phase was, therefore, contrary to Supreme Court law. As the
Supreme Court recently explained:
If a state court were to reject a prisoner’s claim of
ineffective assistance of counsel on the grounds that
the prisoner had not established by a preponderarice of
the evidence that the result of his criminal proceeding
would have been different, that decision would be
"diametrically different," "opposite in character or
nature,” and "mutually opposed” to [the Supreme
Court’s] clearly established precedent because [the
Court] held in Strickland that the prisoner need only
demonstrate a "reasonable probability that . . . the
result of the proceeding would have been different."
Williams, 529 U.S. at 405-06 (quoting Strickland, 466 U.S. at
694).
Visciotti is not entitled to relief, however, unless the
California Supreme Court reached an erroneous result that
warrants the issuance of a writ. After considering the applicable
Supreme Court and Ninth Circuit precedent,” we find that
12. Although “clearly established law” for the purposes
of 28 U.S.C. § 2254, is the “holdings, as opposed to the dicta,
of th{e] Court’s decision as of the time of the relevant state
court decision,” Williams, 529 U.S. at 412, “we still look to our
own law for its persuasive authority in applying Supreme Court
law,” Van Tran, 212 F.3d at 1154.
38
Visciotti suffered from ineffective assistance of counsel during
the penalty phase and suffered prejudice as a result because
"there is a reasonable probability that, but for counsel’s
professional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 688.
1. Agajanian’s preparation for and presentation during
the penalty phase was deficient.
The California Supreme Court assumed that Agajanian’s
preparation for and presentation at the penalty phase was
deficient because Agajanian:
(1) failed to investigate and discover mitigating
evidence as a result of his ignorance of the types of
evidence a jury might consider mitigating; (2) failed to
present readily available evidence that would have
revealed to the jury the extent to which petitioner was
subjected to psychological and physical abuse as a
child, the impact the dysfunctional and peripatetic
family life had on petitioner’s development, and the
correlation between these events and petitioner’s
resort to drugs; (3) failed to prepare, which left him
unaware of the scope of the aggravating evidence to be
introduced; and (4) delivered an unfocused closing
argument, during which he undercut his client’s own
case by telling the jury that the evidence of petitioner’s
mental and emotional problems was not mitigating.
39
In re Visciotti, 14 Cal. 4th at 353. Having reviewed the record,
we conclude that Agajanian’s performance was deficient for the
‘reasons described by the California Supreme Court, and, in
addition, because Agajanian relied on a defense in mitigation
that was factually unsupported and that portrayed Visciotti in an
inaccurate and unflattering light.
a. Agajanian failed to investigate and discover
mitigating evidence about Visciotti.
It is clearly established Supreme Court law that the failure
to conduct a reasonable investigation constitutes deficient
performance. "[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S. at
691. In satisfaction of this duty, Agajanian had an "obligation
to conduct a thorough investigation of [Visciotti’s] background."
Williams, 529 U.S. at 396; see also Mayfield, 270 F.3d at 927;
Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir. 2001). As
we have noted, "‘[i]t is imperative that all relevant mitigating
information be unearthed for consideration at the capital
40
sentencing phase.’" Wallace v. Stewart, 184 F.3d 1112, 1117
(9th Cir. 1999) (quoting Caro v. Calderon, 165 F.3d 1223, 1227
(9th Cir. 1999) (brackets in original).
Agajanian’s performance during the penalty phase was
deficient because he conducted essentially no investigation in
search of potentially mitigating evidence about Visciotti.
Agajanian did not conduct "any formal one-on-one interviews of
witnesses familiar with Visciotti’s background.” Dist. Ct. at 8.
Agajanian did not retrieve or review "any records having to do
with John Visciotti’s background, medical history, school
history, history of drug use, juvenile probation, prior
convictions, prior incarcerations, or any other material relevant
to Visciotti's history." Jn re Visciotti, 14 Cal. 4th at 347.
"Agajanian made virtually no effort prior to trial to determine
whether friends, relatives, medical records, or institutional
records could provide any additional evidence regarding when
Visciotti began using drugs, what prompted him to become
involved with drugs, what type of drugs he used, how often he
used drugs, or whether his drug use could be classified as an
addiction.” Dist. Ct. at 7.
Agajanian’s performance during the pena!ty phase was also
deficient because he inadequately developed and presented
expert testimony regarding Visciotti’s mental health. Two
psychiatrists, Dr. Seawright Anderson ("Dr. Anderson") and Dr.
Kaushal Sharma ("Dr. Sharma") were appointed by the court to
evaluate Visciotti’s competence to siand trial and sanity at the
time of the offenses, but Agajanian provided neither Dr. Sharma
nor Dr. Anderson with the information they needed to provide a
competent evaluation. Dist. Ct. at 10-12; In re Visciotti, 14 Cal.
4th at 338. Agajanian’s failure to provide Drs. Sharma and
Anderson with the information they requested was not the
product of a tactical decision; he simply failed to do so.
Although Agajanian did have a mental health expert, Dr.
Broussard, testify for the defense during the guilt phase, he was
retained three days before he testified and was unprepared to
provide a reliable conclusion about Visciotti’s mental state at the
42
time of the offenses. At their only meeting regarding this case,
which lasted less than one hour, Agajanian and Dr. Broussard
"discuss[ed] diminished capacity,” but Agajanian did not give
Dr. Broussard any records or Visciotti’s videotaped confession
and reenactment to assist his evaluation. /n re Visciotti, 14 Cal.
4th at 339. Dr. Broussard’s interview and testing of Visciotti
took "no more than two and one-half hours” and was performed
“two days after the People rested in the guilt phase of the trial.”
Id. at 339-40. Dr. Broussard testified at trial that Visciotti "had
minimal brain injury of a type associated with impulse
disorders,” and "that [Visciotti] was not completely aware of
what he was doing during the robbery/murder and could not
judge the nature and consequences of his acts at the time.”
Visciotti, 2 Cal. 4th at 32. On cross-examination, however, "Dr.
Broussard admitted to the jury that, in order to arrive at a reliable
conclusion, he needed more time and should have met with
Visciotti more than once." Dist. Ct. at 15. During the state
43
habeas hearing, Agajanian acknowledged that he should have
hired Dr. Broussard earlier.
In addition, Agajanian did not heed recommendations from
both Dr. Anderson and Dr. Broussard that Agajanian should
arrange for additional psychological testing and evaluation of
Visciotti. In his report, Dr. Anderson wrote that Visciotti had
repeatedly suffered head injuries, including one that resulted in
a brief coma, and had been placed on anti-psychotic medications.
Dr. Anderson concluded that Visciotti might have organic brain
damage, and recommended that additional tests be performed to
"rule out the possibility of organic brain disorder” and to “obtain
more information about petitioner’s basic personality structure.”
Id. Dr. Broussard also encouraged Agajanian to retain a licensed
clinical social worker to conduct an extensive evaluation of
Visciotti’s social history. Jn re Visciotti, 14 Cal. 4th at 340. Dr.
Broussard advised Agajanian that Visciotti’s case "was a very
serious case and would require comprehensive investigation and
that the cost of the investigations would be approximately
$2,500." /d. Agajanian told Dr. Broussard that he “was not
willing to take the time for or to pay for" additional
investigation, even though he later stated that he believed that "a
court would find that [Visciotti] did not have sufficient resources
to hire either counsel or expert witnesses or investigators” and
would "very likely" declare Visciotti indigent as a matter of law.
Dist. Ct. at 5. Agajanian’s failure to develop and present
testimony regarding Visciotti’s mental health amounts to
constitutionally deficient »erformance. See, e.g., Turner v.
Duncan, 158 F.3d 449, 456 (9th Cir. 1998) ("failure to arrange
a psychiatric examination or utilize available psychiatric
information . . . falls below acceptable performance standards");
Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995)
(failure to investigate defendant’s mental condition as a
mitigating factor after being notified that defendant may be
mentally impaired constitutes ineffective assistance of counsel).
b. Agajanian failed to present readily available
mitigating evidence about Visciotti’s background.
As a result of his failure to investigate Visciotti’s
background, Agajanian did not uncover or present evidence
during the penalty phase that was later described at Visciotti’s
state habeas proceeding as “overwhelming mitigating
circumstances" in "an absolutely horrendous family history.” /n
re Visciotti, 14 Cal. 4th at 341. Extensive mitigating evidence
was presented at Visciotti’s state habeas hearing by Shirley
Reece ("Professor Reece"), a licensed clinical social worker and
professor at the University of California at San Francisco, and
Dr. Jay Jackman ("Dr. Jackman"), an expert in forensic
psychiatry with experience in substance abuse cases. Both
Professor Reece and Dr. Jackman spoke with family members
and reviewed Visciotti’s “hospital, school, probation, Youth
Authority and Department of Corrections records . . . all of
which were available and could have been discovered by
Agajanian with reasonable investigation." /d. at 342. The
mitigating evidence Professor Reece and Dr. Jackman uncovered
- regarding Visciotti’s family life, educational history, history of
drug use, conduct while incarcerated, and possible brain damage
- should have been presented to the jury in Visciotti’s penalty
phase proceeding.
Visciotti’s parents’ relationship was "extremely volatile,
hostile, and mutually abusive, both physically and verbally.” /d.
at 341. Visciotti and his siblings "were always frightened and
worried that the parents would kill each other." Jd. "The battles
between petitioner’s parents involved screaming that could be
heard more than a block away." /d. at 343. Visciotti’s father
held a gun to his mother’s head and threatened to kill her in front
of Visciotti and his two brothers. Visciotti’s mother threw pots
of hot coffee and other objects at his father. Visciotti and his
siblings "lived a life of terror." Jd. at 341.
All of the children were "blamed for the family’s
difficulties, and some were beaten with a belt and slapped.” /d.
Visciotti’s parents were particularly relentless in their abuse of
Visciotti. /d. at 342. Part of this abuse was related to the fact
that Visciotti was born with club feet, a congenital abnormality.
47
Because of his condition, Visciotti could not walk until he was
three years old and had to wear splints and special shoes
thereafter. /d. The treatments for Visciotti’s condition strained
the family financially and required Visciotti’s father to borrow
money from his parents, which "impacted on [Visciotti’s]
father’s self image." /d. Visciotti’s father threatened to break
Visciotti’s legs, "saying he had paid to have the legs fixed and
would break them again." /d. Visciotti’s siblings testified at the
state habeas hearing that Visciotti’s father "continually berated"
Visciotti, and his parents called him "an ‘asshole,’ a “mother
fucker,’ ‘stupid,’ and ‘retarded.”" /d. at 341.
Visciotti’s education suffered as a result of his family
situation, "Economic problems and the number of children
caused the family to move often which had a profound effect on
the children. [Visciotti] left kindergarten after nine days and was
not re-enrolled in school for the first grade for two years." /d.
Visciotti’s family moved at least twenty times when Visciotti
was growing up, and the constant moves "impacted [Visciotti’s]
48
ability to function in school and in his social world. He was
always an outsider." /d. at 343.
Visciotti’s family situation also took a toll on his self-
perception. Visciotti "thought he could never do anything right
and could never do anything to please his parents. He was
highly self-critical and blamed himself for things for which he
had no responsibility such as his parents’ difficulties." /d. at
341.
By the time he turned eight, Visciotti used drugs to escape
his family situation. /d. at 343. Visciotti first used marijuana,
then began using alcohol and Seconal, a sedative hypnotic, and
then amphetamines. /d. at 343-44. At fifteen, Visciotti began
using cocaine, which became his "drug of choice" by age
eighteen. Jd. at 344. Visciotti also began using PCP. /d. "Most
of the criminal conduct in which [Visciotti] engaged occurred
during a period when he had progressed to injecting PCP
intravenously several times a day in order to have that detached
experience." /d. Dr. Jackman testified that "[Visciotti’s]
49
criminal behavior was directly related to his drug use,” and that
Visciotti did not have a "criminal or antisocial personality.” Jd.
Visciotti was tested for a brain abnormality while at the
California Youth Authority because he did not seem to be a
"typical delinquent." Id. at 343. An_ abnormal
electroencephalogram reflected a possible seizure disorder. /d.
Visciotti was prescribed Dilantin, an anti-seizure medication,
and "[w]Jhile taking the medication [he] did not abuse drugs and
his behavior was significantly improved." /d. Dr. Jackman
testified that, throughout his time at the California Youth
Authority, Visciotti "was not a behavior problem and did all jobs
expected of him.” /d.
Agajanian’s failure to investigate and present any of this
evidence was not the product of a reasoned tactical decision.
Agajanian asserted that, after reviewing Visciotti’s videotaped
confession and reenactment, he concluded that he would not
conduct the investigation necessary to pursue a "sympathy
defense" based upon Visciotti’s upbringing because he did not
50
think that any jury could feel sympathy for Visciotti. As
Agajanian explained:
The bottom line is I could not imagine, no matter how
terrible his childhood could have been, I could not
imagine why a jury would care even a little bit about
what happened to a person when he was born or what
happened to a person when he was in school or
whether he got to play little league or not or whether
his father was physically abusive or mentally abusive
to him or whether his mother was physically or
mentally abusive.
Agajanian’s decision not to pursue a sympathy defense
based on Visciotti’s background cannot be viewed as strategic
because it was entirely unfounded. As Agajanian acknowledged,
he "chose not to pursue a sympathy defense on behalf of John
Visciotti individually . . . without knowing what [he] might find
if [he] did." Indeed, Agajanian shielded himself from
information that might prove his strategy wrong. Agajanian
specifically told Dr. Broussard that he "did not want an opinion
on childhood abuse in the report or for Dr. Broussard to indicate
that there was any problem in the family, no matter how
important information about the family was." /d. at 340.
51
Agajanian’s failure to conduct even a preliminary review of
Visciotti’s background in order to determine what mitigating
evidence might exist is unjustifiable.
Moreover, Agajanian’s conclusion that information about
Visciotti’s background could not mitigate Visciotti’s punishment
is unreasonable. As the Supreme Court has recognized,
"*evidence about the defendant’s background and character is
relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
(quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring)). Agajanian’s decision not to seek
any mitigating evidence because of the seriousness of Visciotti’s
crime reflects that Agajanian "did not understand how evidence
of a person’s background could be used to call for a sentence less
52
than death when the crime was a serious homicide." Dist. Ct. at
49.
In sum, Agajanian was ineffective during the penalty phase
because he did not "fulfill [his] obligation to conduct a thorough
investigation of [Visciotti’s] background," and failed to
introduce the "voluminous amount of evidence that did speak in
[Visciotti’s] favor." Williams, 529 U.S. at 396.
c. Agajanian relied on a strategy in mitigation that -
was factually unsupported and that portrayed
Visciotti in an inaccurate and unflattering light.
Instead of investigating and presenting the wealth of
available mitigating evidence about Visciotti’s upbringing and
history, Agajanian decided, after viewing Visciotti’s videotaped
confession, that his strategy during the mitigation phase would
be to evoke sympathy for the Visciotti family. Agajanian
pursued this "family sympathy" mitigation strategy because
"[{h]je believed that, although sympathy for petitioner could not
be expected, sympathy for petitioner’s parents might be" and .
"[h}is defense would therefore suggest that the parents were nice
53
people whose son should not be killed." In re Visciotti, 14 Cal.
4th at 336.
Agajanian’s family sympathy mitigation strategy had little
factual support. At the time Agajanian decided to pursue the
family sympathy strategy, Agajanian had not "conduct(ed]
formal interviews with any members of petitioner’s family," he
had done "no investigation . . . to seek potentially mitigating
evidence," and he had “no information about petitioner’s
background other than what appeared to him to be ‘good
aspect’s of the family." /d. at 337.
Agajanian’s family sympathy mitigation strategy was
inconsistent with the little that Agajanian found out about the
Visciotti family. When Agajanian decided that he would pursue
a family sympathy strategy, he was aware that there was "some
brutality in the family" and some "possible family discord"
during Visciotti’s youth. Jd. He decided not to investigate these
allegations, however, because, Agajanian declared, he "was not
interested in making [ Visciotti’s] father or mother or brothers or
54
sisters out to be monsters because they had sat through the entire
trial and supported him throughout the trial." Agajanian's
decision that it was more important to preserve the Visciotti
family’s pride or dignity than it was to prevent his client from
receiving the death penalty cannot be viewed as a reasonable
basis to forego investigation. As the California Supreme Court
"assume([d] arguendo," "since Agajanian apparently was put on
notice of possible family discord during petitioner’s youth, his
decision to present a ‘family sympathy’ defense without
investigation to determine the nature of the evidence that was
available was not a decision that a competent attorney
representing a capital defendant would make." /d. at 348.
As a result of his mitigation strategy, Agajanian portrayed
Visciotti in an unflattering light that Agajanian knew to be
inatcurate. Agajanian portrayed Visciotti as his family’s only
"bad seed," while knowing that Visciotti’s brother had been
arrested for drunk driving and Visciotti’s sister had been arrested
for possession of methamphetamine. Dist. Ct. at 7. Indeed,
55
during Visciotti’s state habeas hearing, members of Visciotti’s
family confirmed that, "contrary to the evidence offered at the
penalty phase, [Visciotti] was not the only ‘bad seed’ in an
otherwise loving family." Jn re Visciotti, 14 Cal. 4th at 345.
The Supreme Court has instructed that "strategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U.S.
at 690-91. Agajanian’s mitigation strategy was deficient because
it was not the product of a reasonable investigation. Particularly
in light of the extensive evidence of Visciotti’s physical and
mental abuse by his parents, Agajanian’s portrayal of Visciotti
as the one bad seed in the Visciotti family cannot be considered
a reasonable penalty phase strategy.
d. Agajanian was unprepared to respond to the
prosecution’s aggravating evidence.
Agajanian’s performance during the penalty phase was also
deficient because he did not investigate and was not prepared to
respond to the prosecution’s case in aggravation. Five months
before trial began, the prosecutor filed a notice that he intended
to introduce, as evidence in aggravation, evidence related to the
instant offense and Visciotti’s prior conviction for assault with
a deadly weapon. Dist. Ct. at 9. Despite this notice, and
"[a}lthough it was the practice of the district attorney at the time
of the Visciotti trial to make the case files of prosecutors
available to defense counsel . . . Agajanian did not send for the
police report or go through the prosecutor’s file to read it in
advance of trial." Jn re Visciotti, 14 Cal. 4th at 340. Agajanian’s
failure to investigate the assault in preparation for the penalty
phase - after learning the details of the assault during the
prosecution's rebuttal in the guilt phase - is even less defensible
as a strategic decision. Agajanian explained that he did not
investigate the assault in preparation for the penalty phase
because Cusack was an extremely sympathetic victim. Although
Agajanian’s reasoning might have explained his decision not to
pursue a certain line of questioning at trial, it does not justify his
failure to investigate the circumstances of the assault.
57
Agajanian also failed to investigate or introduce any
evidence during the penalty phase to mitigate the circumstances
of the capital offense. Agajanian did not interview Wolbert, the
surviving victim, or Hefner, Visciotti’s co-perpetrator, nor did he
review the transcript of Hefner’s trial. Agajanian also failed to
introduce - beyond that introduced at the guilt phase -
mitigating evidence regarding the circumstances of the offense:
that the gun used to shoot Dykstra and Wolbert belonged to
Hefner, that Visciotti did not plan to shoot Wolbert or Dykstra,
that Visciotti shot Dkystra only after Hefner gave Visciotti the
gun and repeatedly encouraged him to shoot, and that Visciotti
had injected himself with cocaine a few hours before the robbery
and murder occurred. Dist. Ct. at 28. Agajanian has not offered
a reasonable explanation for his failure to conduct this minimal
investigation or marshal the available mitigating evidence
regarding the circumstances of the capital offense.
Agajanian’s failure to investigate Visciotti’s prior felony
assault conviction and his failure to investigate and present
58
mitigating evidence regarding the circumstances of the capital
offense cannot be justified as strategic decisions. See, e.g.,
Turner, 158 F.3d at 456 (attorney’s failure to investigate the
prosecution’s case "falls below minimum standards of competent
representation”).
e. Agajanian undercut Visciotti’s case during closing
argument.
Agajanian "delivered an unfocused closing argument,
during which he undercut his client's case by telling the jury that
the evidence of petitioner’s mental and emotional problems was
not mitigating.” Jn re Visciotti, 14 Cal. 4th at 353. As the
district court found, Agajanian "conceded that nine of the eleven
statutory sentencing factors in California Penal Code § 190.3
favored the prosecution without even mentioning the existence
of evidence that would support a mitigating interpretation of
several of those factors." Dist. Ct. at 27.
= 5
13. Among the eleven factors a jury is instructed to
consider when deciding whether to impose life imprisonment or
death are: (a) “/t/he circumstances of the crime of which the
defendant was convicted in the present proceeding”; . . . (d)
59
In his closing argument, Agajanian told the jury that there
was no mitigating evidence related ‘to factor (a), the
circumstances of the crime, because "there’s no way to make
light of any kind of murder, whether or not there’s a robbery
involved.” Agajanian also told the jury that there was no
mitigating evidence related to factors (g) and (j), as there was
“no evidence” of "extreme duress," apparently referring to the
jury's ability to consider whether Visciotti was acting "under the
substantial domination of another,” and no evidence that
Visciotti was an accomplice because Visciotti was, "as the
“(whether or not the offense was committed while the
defendant was under the influence of extreme mental or
emotional disturbance”; . . . (g) “/w/hether or not defendant
acted under extreme duress or under the substantial domination
of another person”; (h) “[w]hether or not at the time of the
offense the capacity of the defendant 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 affects of intoxication”; (i) “[t]he age of the
defendant at the time of the offense”; (j) “/w/Jhether or not the
defendant was an accomplice to the offense and his participation
in the offense was relatively minor; (k) “/ajny other
circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime.” Cal. Penal Code
§ 190.3 (emphases supplied).
People said, the trigger man." These three concessions were
contrary to evidence that the gun used to shoot Dykstra and
Wolbert belonged to Hefner, that Visciotti did not plan to shoot
Wolbert or Dykstra, that Visciotti shot Dkystra only after Hefner
gave Visciotti the gun and repeatedly encouraged him to shoot,
and that Visciotti had injected himself with cocaine a few hours
before the robbery and murder occurred. Dist. Ct. at 28.
Agajanian also discounted the effect of mitigating evidence
that was submitted _ .ring the guilt and penalty phases of
Visciotti’s trial. Agajanian told the jury that there was no
evidence of factor (d), that "the offense was committed while the
defendant was under the influence of extreme mental emotional
disturbance." Agajanian said: "with respect to emotional
disturbance, there’s no evidence of that. That isn’t even a factor
to be considered." Agajanian also told the jury that they could
disregard factor (h), which concerned whether. Visciotti’s
capacity to appreciate the wrongfulness of his conduct "was
61
impaired as a result of mental disease or defect or. . .
intoxication" because:
when you ladies and gentlemen returned this verdict of
first degree murder and found special circumstances,
you indicated to all of us that you did not find
diminished capacity. So if you did not find
diminished capacity, how can I argue that as a factor
of aggravation or mitigation? It just does not apply.
It's not there. I think when you ladies and gentlemen
found that - you basically found that diminished
capacity did not reduce the nature of the robbery to
something less than a robbery, or the nature of the first
degree murder to something less than first degree
murder. So that’s not a factor of mitigation.
Dist. Ct. at 29.
Agajanian conceded the inapplicability of factors (d) and
(h) despite evidence submitted at the guilt phase that Visciotti
was intoxicated at the time of the offense and that Visciotti
suffered from a minimal brain injury that caused an impulse and
learning disorder. Dist. Ct. at 30. Agajanian’s concessions
reflect his failure to recognize that the jury could consider
Agajanian’s intoxication and brain damage during the penalty
phase, even if the ottnie was insufficient to establish a legal
defense in the guilt phase. /n re Visciotti, 14 Cal. 4th at 354 n.7.
62
See also Hendricks, 70 F.3d at 1043 ("[e]vidence of mental
problems may be offered to show mitigating factors in the
penalty phase, even though it is insufficient to establish a legal
defense to conviction in the guilt phase") (citing Cal. Pena! Code
§ 190.3(d),(h)).
Although Agajanian did not concede outright the
inapplicability of two of the mitigating factors - "age" and
“sympathy” - he hardly advocated for a sentence less than death
on account of those factors. Regarding Visciotti’s age,
Agajanian said: "The age of the defendant. I happen to consider
26 years of age a rather young age." Regarding sympathy,
Agajanian said that it "should be an issue to consider." As the
District Court observed, however, "Mr. Agajanian did not argue
that factor (k) was ‘resent’ or that it ‘favored the defense.’ . . .
Indeed, he did not identify any evidence that would warrant
sympathy for Visciotti (or his family) and, if so, why the jurors
should rely on such pity or sympathy as a basis for returning a
sentence other than death." Dist. Ct. at 83.
63
Agajanian’s failure to investigate and present extensive
mitigating evidence about Visciotti’s background was
unreasonable, his decision not to pursue a mitigation strategy
based on Visciotti’s background was uninformed, and his failure
to develop and present expert testimony regarding Visciotti’s
‘mental health was unjustified. The mitigation strategy
Agajanian did pursue, based on sympathy for Visciotti’s family,
presented Visciotti in an unflattering light that Agajanian knew
to be inaccurate. Agajanian was utterly unprepared to respond
to the prosecution’s case in aggravation. In his closing argument,
Agajanian affirmatively conceded several mitigating factors that
a reasonable juror might well have applied to the facts, while
offering the jury no other reason not to impose the death penalty.
In sum, Agajanian’s performance throughout the penalty phase
was deficient.
2. Visciotti was prejudiced by Agajanian’s deficient
performance during the penalty phase.
In addition to showing Agajanian’s deficient performance,
Visciotti must show prejudice: that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Strickland,
466 U.S. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the
proceedings.” /d. We must affirm the district court’s reversal of
Visciotti’s death sentence 4f we "cannot conclude with
confidence that the jury would unanimously have sentenced him
to dea‘: if [Agajanian] had presented and explained all of the
available mitigating evidence." Mayfield, 270 F.3d at 929.
We conclude that, in light of the abundant mitigating
evidence that Agajanian failed to introduce, Agajanian’s
inaccurate portrayal of Visciotti as the one "bad seed" in his
family, Agajanian’s absolute failure to counter the prosecution’s
case in aggravation, and, perhaps most importantly as to
prejudice, Agajanian’s closing argument, which conceded
several potential mitigating factors while providing the jurors
essentially no reason not to impose the death penalty, there is a
"reasonable probability that the omitted evidence would have
65
changed the conclusion that the aggravating circumstances
outweighed the mitigating circumstances and, hence, the
sentence imposed." Strickland, 466 U.S. at 700. See also, e.g.,
Williams, 526 U.S. at 398; Karis v. Calderon, 283 F.3d 1117,
1140 (9th Cir. 2002); Mayfield, 270 F.3d at 933; Hendricks, 70
F.3d at 1045.
As noted, the California Supreme Court did not apply the
"reasonable probability" standard, so its decision as to prejudice
was contrary to clearly established Supreme Court law. Even if
the California Supreme Court had correctly applied the prejudice
prong of the Strickland standard, however, its conclusion that
Visciotti suffered no prejudice as a result of Agajanian’s
deficiencies would be objectively unreasonable, because it
"failed to evaluate the totality of the available mitigation
evidence - both that adduced at trial, and the evidence adduced
in the habeas proceeding - in reweighing it against the evidence
in aggravation." Williams, 529 U.S. at 398 (citation omitted).
The California Supreme Court concluded that Agajanian’s
failure to introduce additional evidence about Visciotti’s
"troubled family background” was not prejudicial because it
would not have outweighed the aggravating evidence of "[t}he
circumstances of the crime" and "the earlier knifing of William
Scofield and the pregnent Kathy Cusack." Jn re Visciotti, 14
Cal. 4th at 355. The California Supreme Court did not, however,
take into account the totality of the available mitigating
evidence, and completely ignored the mitigating effect of
Visciotti’s brain damage or adjustment to incarceration. The
California Supreme Court also failed to consider the prejudicial
impact of: (1) Agajanian’s portrayal of Visciotti as the one "bad
seed” in the Visciotti family; and (2) Agajanian’s multiple
concessions during closing argument. Because the California
Supreme Court failed to consider the potential impact of all of
the mitigating evidence that was available to Agajanian, and
failed to consider the prejudicial impact of Agajanian’s
representation — particularly his closing argument, which was
more effective in persuading the jury to impose the death penalty
67
than it was in convincing them to spare his life - its application
of Supreme Court law was objectively unreasonable.
The state argues that the California Supreme Court’s
conclusion that no prejudice resulted was objectively reasonable
because the aggravating evidence was overwhelming. The
record reflects, however, that the aggravating factors were not
overwhstming, as the jury deliberated a full day and then
requested additional guidance on the definitions of "moral
justification” and "extreme duress." Cf. Bean v. Calderon, 163
F.3d 1073, 1081 (1998) (the fact that the jury was initially
divided over the appropriateness of the death penalty, despite the
attorney’s failure to present mitigating evidence, "undermine[s]
confidence in the outcome” of the petitioner’s penalty phase
hearing). The fact that the jury struggled despite Agajanian’s
deficient performance reflects a reasonable probability that they
would have returned a life verdict had they had the opportunity
to hear and consider the available mitigating evidence, had
Visciotti not been inaccurately portrayed as the one "bad seed"
68
in the Visciotti family, and had Agajanian not advised the jury
in his closing argument against considering mitigating factors
that could have outweighed the aggravating factors.
Accordingly, having souiniail the applicable federal
precedents, we conclude that Visciotti received ineffective
assistance of counsel during the penalty phase and that he was
prejudiced as a result. | The California Supreme Court's
conclusion that Visciotti did not suffer prejudice as a result of
Agajanian’s deficient performance during the penalty phase is
both contrary to clearly established Supreme Court law and is
objectively unreasonable.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
decision to deny habeas relief on Visciotti’s ineffective
assistance of counsel claim during the guilt phase and affirm the
district court’s decision to grant habeas relief on Visciotti’s
ineffective assistance of counsel claim during the penalty phase.
69
We remand to the district court with directions to issue the
writ of habeas corpus vacating the sentence of death, and
conditionally requiring the imposition of a sentence of life
imprisonment without the possibility of parole, unless the state
grants Visciotti a new penalty phase trial within a reasonable
period of time to be set by the district court.
AFFIRMED and REMANDED.
PREGERSON, Circuit Judge, dissenting:
The majority denies Visciotti’s claim of ineffective
assistance of counsel during the guilt phase on the ground that
Agajanian’s performance, while arguably deficient, did not
prejudice the outcome of Visciotti’s trial. | believe that
Agajanian’s deticient performance during the guilt phase was per
se prejudicial pursuant to the Supreme Court’s decision in
United States v. Cronic, 466 U.S. 659 (1984). Accordingly, I
dissent from Section III A of the majority opinion.
70
In Cronic, the Supreme Court identified certain
circumstances where counsel’s performance is "so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified,” including where a defendant "is
denied counsel at a critical stage o; has trial" and where counsel
"fails 2 subject the prosecution’s case to meaningful adversarial
testing.” /d. at 658-59. I believe that Agajanian abandoned
Visciotti at a “critical stage” of the guilt phase of trial and
"failfed)] to subject the prosecution’s case to meaningful
adversarial testing" because he conceded that Visciotti was
guilty of first degree murder during his closing argument. /d. at
659. Agajanian’s concession merits a finding of prejudice per
se.
Although Agajanian delivered an unorganized and at times
incoherent closing argument, his concession that Visciotti
cominitted first degree murder is unmistakable. Agajanian told
the jury that Visciotti was guilty of first degree murder if they
found that "an implied malice killing of a human being”
71
occurred “during the course of a robbery,” and then said:
"Ladies and Gentlemen, that is what the facts reflect. That is
what the facts reflect in this particular case." (Emphasis
supplied). Agajanian concluded his closing argument at the guilt
phase by again acknowledging that Visciotti committed first
degree murder. He said:
I think the bottom line in this case, ladies and
gentlemen, if we evaluate it from the evidence, if we
evaluate it from what we have before us, the good, the
bad, the ugly, I think that, plus the employment of the
reasonable doubt standard in this particular case will
lead you to a verdict, even though it be first degree
murder, that we have a killing which is not
premeditated, which is not deliberated, which is not
well thought out, which is not pondered, but,
nevertheless, committed.
(Emphasis supplied).
In Swanson, we found that Cronic applied when a lawyer
conceded his client’s guilt at trial, reasoning that "[a] lawyer
who informs the jury that it is his view of the evidence that there
is no reasonable doubt regarding the only factual issues that are
in dispute has utterly failed to ‘subject the prosecution’s case to
meaningful adversarial testing.”” United States v. Swanson, 943
F.2d 1070, 1074 (9th Cir. 1991) (quoting Cronic, 466 U.S. at
659). In this case, as in Swanson, the trial "los[t] its character as
a confrontation between adversaries” when Agajanian conceded
that Visciotti committed first degree murder. /d. at 1073.
The majority argues that Agajanian did not abandon
Visciotti during his closing argument because Agajanian argued
to the jury that "the crime was not premeditated” and "Visciotti
lacked the specific intent to kill". However, once Agajanian
conceded that Visciotti committed felony murder, these
arguments about Visciotti’s state of mind during the killing
became irrelevant. As Agajanian explained to the jury during his
closing argument, a killing during the commission of felony
robbery is first degree murder regardless of the defendant’s state
of mind.
The majority also hypothesizes that Agajanian’s concession
was a Strategic attempt to avoid the imposition of the death
penalty, reasoning that "a jury might be less likely to impose the
death penalty on someone convicted of felony murder, as
73
opposed to someone who set out to commit a premeditated
murder." This hypothesis is unsupported by Agajanian’s closing
argument during the penalty phase, in which he told the jury that
there was no mitigating evidence related » the circumstances of
the crime or Visciotti’s mental state. This hypothesis is also
unsupported by Agajanian’s testimony, during the state habeas
hearing, that the family sympathy mitigation strategy was his
only strategy to avoid imposition of the death penalty. Just as
we cannot evaluate the reasonableness of counsel’s strategic
decisions through the “distorting effects of hindsight,” we
cannot, in hindsight, attribute to counsel a strategy that he did
not actually have in order to make sense of his otherwise
inexplicable conduct. Strickland, 466 U.S. at 689.
There is no doubt that this case was a difficult one to
defend. However, as the Supreme Court instructed in Cronic,
"even when no theory of defense is available, if the decision to
stand trial has been made, counsel must hold the prosecution to
its heavy burden of proof beyond reasonable doubt.” 466 U.S.
74
at 656 n.19. In conceding that Visciotti was guilty of felony
murder, Agajanian relieved the prosecution of this heavy burden.
APPENDIX B
75
APPENDIX B
[Filed October 19, 1999]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JOHN LOUIS VISCIOTTI, )CASE NO. CV 97-4591 R
)
Petitioner, DEATH PENALTY
Vv. JUDGMENT
of California State Prison at
San Quentin,
)
)
)
)
ARTHUR CALDERON, Warden )
)
)
)
Respondent. )
)
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for writ of habeas corpus is
CONDITIONALLY GRANTED in part and DENIED in part.
Insofar as it challenges the judgment of conviction and the
finding of a special circumstance in the case People v. John
Louis Visciotti, Case No. C 50770 of the California Superior
76
Court for the County of Orange, the petition for writ of habeas
corpus shall be, and hereby is, DENIED.
The petition for writ of habeas corpus as to the judgment
and sentence of death in the case People v. John Louis Visciott,
Case No. C 50770 of the California Superior Court for the
County of Orange shall be, and hereby is, GRANTED. The
judgment and sentence of death shall be VACATED AND SET
ASIDE, as shall be any proceedings relating to carrying out that
sentence.
IT IS FURTHER ORDERED that the State of California
shall, within 120 days from the entry of this Judgment, either
grant Visciotti a new trial on the issue of the appropriate penalty
or vacate the sentence of death and resentence him in accordance
with California law and the United States Constitution. 28
U.S.C. § 2241.
IT IS FURTHER ORDERED that the Clerk of this Court
shall immediately notify the Warden of San Quentin Prison of
this Court’s judgment.
IT IS SO ORDERED.
Dated: Oct. 19, 1999.
77
/s/
MANUEL L. REAL,
United. States District Judge
APPENDIX C
78
APPENDIX C
[Filed March 9, 1999]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JOHN LOUIS VISCIOTTI, CASE NO. CV 97-4591 R
“ )
Petitioner, ) DEATH PENALTY
)
v. ) ORDER
| )
ARTHUR CALDERON, Warden )
of California State Prison at )
San Quentin, )
)
Respondent. )
)
Having ordered an evidentiary hearing in this matter, the
Court hereby clarifies the scope of the hearing.
The state court has already held a hearing on Visciotti’s
claim of ineffective assistance of counsel in connection with the
penalty phase. The state court made factual findings. The record
provides no basis for concluding that the hearing was not “full
and fair.” In re Visciotti, 14 Cal.4th 325, 58 Cal.Rptr.2d 801
(1996). Most of Visciotti’s complaints about the referee’s
findings can be resolved from the record or have already been
- resolved favorably to him by the state court. A federal
evidentiary hearing on this claim is unnecessary under Keeney
v. Tamayo-Reyes, 504 U.S. 1 (1992), and is probably precluded
by 28 U.S.C. § 2254(e)(2).
The state court has not held an evidentiary hearing on any
of the remaining claims in the petition. Accordingly, since no
other claims appear to depend on the introduction of extra-record
evidence, the hearing will be limited to the guilt phase aspects of
Visciotti’s claim of ineffective assistance of counsel, a conflict
of interest, and competence to stand trial.
IT IS SO ORDERED.
Dated: March _9_, 1999.
/s/
MANUEL L. REAL,
United States District Judge
APPENDIX D
80
APPENDIX D
[Filed December 9, 1996]
IN THE SUPREME COURT OF CALIFORNIA
JOHN LOUIS VISCIOTTI,
on Habeas Corpus. $031247
Petitioner John Visciotti was convicted by a jury in the
Orange County Superior Court of first degree murder of Timothy
Dykstra with a robbery special circumstance (Pen. C ode, $§ 189,
190.2, subd. (a)(17)(i)), attempted murder of Michael Wolbert
(Pen. Code, §§ 664/187)" and robbery of both men (§ 211). The
jury also found that he had personally used a firearm in the
commission of the offenses (§ 12022.5) and that he intended to
kill the murder victim, Timothy Dykstra. The same jury
determined that petitioner should be sentenced to death. This
1. All statutory references are to the Penal Code unless
otherwise indicated.
SEE CONCURRING AND DISSENTING OPINIONS
court affirmed the judgment in its entirety. (People v. Visciotti
(1992) 2 Cal.4th 1.)
In a subsequently filed petition for writ of habeas corpus,
petitioner asserts ineffective assistance of counsel, relying on
both the record of the trial and evidence outside the record. This
court issued an order to show cause limited to the issue of
ineffective assistance of counsel at the penalty phase of the trial.
In so doing we implicitly concluded that allegations that
petitioner received prejudicially ineffective assistance of counsel
at the guilt phase and was denied the right to trial before an
impartial tribunal failed to state a prima facie case. (People v.
Miranda (1987) 44 Cal.3d 57, 119, fn. 37; People v. Bloyd
(1987) 43 Cal.3d 333, 362-363.)
After the filing of respondent’s return and petitioner's
traverse, we determined that disputed facts necessitated an
evidentiary hearing. (See People v. Romero (1994) 8 Cal.4th
728, 737-740; In re Lawler (1979) 23 Cal.3d 190, 194.) The
Honorable Eileen C. Moore, Judge of the Orange County
82
Superior Court, was appointed referee with directions to take
evidence and make findings of fact on the several questions that
will be discussed below.
After an independent review of the appellate record and
record of the evidentiary hearing, we conclude that, assuming
petitioner’s trial afforded inadequate representation in some
respects, petitioner has not demonstrated that those failings were
prejudicial. Because he has not established that absent those
failings it is probable that a more favorable result would have
been reached by the penalty jury, he is not entitled to relief. We
shall, therefore, discharge the order to show cause and deny the
petition for writ of habeas corpus.
I
Background
The events leading to the murder conviction and imposition
of the death penalty are set forth in People v. Visciotti, supra, 2
Cal.4th 1. Briefly, petitioner and Brian Hefner, who had been
employed as salesmen by a company which also employed
83
victims Timothy Dykstra and Michael Wolbert, lured the victims
to a remote area of the Anaheim Hills on Santiago Canyon Road
in Orange County in a preplanned robbery scheme. There the
victims were robbed, shot, and abandoned. Dykstra died at the
scene. Wolbert sia notwithstanding bullet wounds in the
torso and face, and testified against petitioner whom he.
| identified as the shooter.
Wolbert described petitioner’s methodical execution of
Dykstra and attempt to murder Wolbert. Petitioner directed
Wolbert. in whose car the four were driving, to the site where ‘‘e
crimes were committed. Before leaving with petitioner and
Hefner, Wolbert and Dykstra had hidden the pay they had just
received behind the dashboard of Wolbert’s car. Petitioner
asked Wolbert to stop, claiming a need to relieve himself.
Dykstra got out to let petitioner out of the back seat. Hefner
followed. At that point Wolbert saw a gun in petitioner's
waistband. Wolbert left the car also and saw petitioner pointing
84
the gun at Dykstra. The pair were face to face, less than two feet
from each other, next to the passenger side of the car.
As Wolbert walked to the back of the car he ran into Hefner
who said “he’s not fucking around.” Petitioner then demanded
the victims’ wallets and threatened Dykstra. Dykstra and
Wolbert sat on an embankment at the side of the road, Dykstra
near the front of the car, Wolbert a few feet behind the car.
Wolbert told Hefner where the money was hidden. Hefner went
to the car and returned with the money. Wolbert asked petitioner
to take the car and the money, but to let him and Dykstra go,
promising not to identify petitioner. While Hefner was in the
car, petitioner had moved closer to Wolbert, but when Hefner
returned petitioner moved back to the location at which Dykstra
was seated, raised the gun, and shot and killed Dykstra. Wolbert
arose and took several steps back as petitioner approached him
with the gun. Petitioner raised the gun, holding it with two
hands extended out from his chest, and shot Wolbert. The first
shot was from a distance of about six feet. It hit Wolbert in the
85
rib cage. Wolbert fell. As Wolbert lay on the ground and looked
at petitioner, petitioner stepped closer to Wolbert. Standing at
Wolbert’s feet, about three feet from him, petitioner_raised the
gun and shot Wolbert again. This shot hit Wolbert in the left
shoulder. When petitioner began to walk away, Wolbert got up.
Petitioner turned as Wolbert approached, and from a distance of
two feet put the gun to Wolbert’s head and shot him again. This
shot hit Wolbert in the left eye. Petitioner and Hefner then
abandoned the victims, taking Wolbert’s car, and fled the crime
scene. Each time petitioner fired the gun he had to pull the
hammer back to manually cock it.
Petitioner and Hefner, who was separately tried and
sentenced to life imprisonment without possibility of parole,
were quickly apprehended. Petitioner confessed and participated
in a videotaped reenactment of the crime.
The defense presented evidence at trial that petitioner had
learning disorders attributed to a minimal brain injury, had
ingested drugs prior to the crimes, was not completely aware of
86
his actions during the offenses, and was unable to judge the
nature and consequences of his actions. Evidence of petitioner’s
history of drug and alcohol abuse was also presented in support
of an expert’s conclusion that petitioner was in a drug-induced
psychotic state at the time of the murder and attempted murder.
The defense offered mitigating evidence at the penalty
phase in testimony by petitioner’s parents, siblings, and
girlfriend about petitioner’s love and concern for his family, his
helpfulness, and his musical and artistic talent. The family
members testified that petitioner’ s personality changed when he
was under the influence of drugs, and his father testified about
his efforts to persuade petitioner to cease using drugs---efforts
that included “punching” petitioner across the room. and bribing
him. The penalty phase argument by defense counsel Roger
Agajanian was, as we described it in the decision on appeal “a
rambling discourse, not tied to particular evidence” (People v.
Visciotti, supra, 2 Cal.4th at p. 82, fn. 45) during which counsel
asked the jury to spare petitioner’s life because he was the only
87
bad child of a loving family who would suffer if petitioner were
to be executed.
Il
The Ineffective Assistance Of Counsel Claim
The claim on which the order to show cause issued is
petitioner’s assertion that he received constitutionally ineffective
assistance of his counsel, Roger Agajanian, at the penalty phase
of the trial. In a related claim that we deem part of the
ineffective assistance of counsel claim, petitioner alleges that
counsel labored under a conflict of interest which affected
counsel’s ability to forcefully and competently represent him.
We decline petitioner’s request that we reconsider our
conclusion that his other claims do not state a prima facie case
for relief.
A. Penalty Phase Representation/Conflict of Interest
Claim
Petitioner’s allegations in support of his claim of
constitutionally inadequate representation by trial counsel extend
88
to counsel’s preparation for and performance at the penalty phase
of the trial. He attributes counsel’s tactical decisions and
deficient performance at this stage to both incompetence and the
assertedly prejudicial impact of a conflict of interest.
Allegedly counsel labored under a conflict of interest that
existed because of financial arrangements between counsel and
petitioner’s family, who retained Agajanian, agreeing to pay
$25,000 for representation at trial and to pay for experts and
investigation. Petitioner claims the family paid only $5,000 to
$7,500. Agajanian did not seek public funds for investigation or
experts, although petitioner was indigent, apparently believing
that such funds were not available when a defendant has retained
counsel.
Petitioner also alleges that Agajanian’s investigator, Grasso,
performed only “minimal tasks,” including a visit to the scene of
the offenses, group interviews with family members, and one
interview with petitioner’s girlfriend. Petitioner alleges that no
other investigation was undertaken, no records obtained, and no
89
nonfamily witnesses were interviewed. He also alleges that
counsel did not act competently in interviewing the witnesses
and in inspecting the physical oon: and did not prepare
properly for trial. Counsel did not ensure that his expert, Dr.
Broussard, was adequately prepared, with the result that Dr.
Broussard did not have access to crucial information and was not
given important evidence. Dr. Broussard interviewed petitioner
only once and, allegedly, did not conduct a meaningful
examination of petitioner.
At the penalty phase counsel’s theory was to invoke jury
sympathy for petitioner's family.
Petitioner alleges that counsel’s failings at the penalty phase
are attributable in part to the conflict of interest which arose
because counsel could not “bite the hand that feeds him.”
Agajanian was dependent on the family to pay the unpaid
balance of his fee. Petitioner claims that, as a result of the
conflict, counsel did not present available evidence that, far from
being a child of a loving family, petitioner was raised in a
dysfunctional family in which both physical and psychological
abuse were inflicted on petitioner by his parents. Petitioner
implies that counsel was concerned that if evidence of this
mistreatment were presented the remaining fee would not be
paid.
Incorporating all of the above allegations of inadequate
representation by trial counsel at the guilt phase into his assertion
of penalty phase incompetence, petitioner alleges that trial
counsel failed to offer a viable penalty phase defense, failed to
make appropriate objections and motions, and Stipulated to an
improper response to a jury inquiry. Allegedly, counsel failed to
investigate and attack or impeach aggravating evidence and
witnesses. He did not take the advice given, or undertake the
Steps recommended, by Dr. Sharma, a forensic psychiatrist,
which steps were necessary to adequate penalty phase
representation. Instead, he presented an allegedly “inadequately
developed, ill-conceived and ineffective” theory of invoking
sympathy for petitioner’s family, gave a rambling argument not
91
tied to any evidence, and mistakenly argued that impaired mental
state, a mitigating factor, was not present. Moreover, counsel
did not request a limiting instruction regarding consideration of
the evidence of past arrests and criminal conduct so as to reduce
the prejudicial impact of “inadmissible” evidence, did not
sufficiently object and make an offer of proof to support a
continuance to prepare to rebut the testimony regarding a 1978
knife assault on Kathy Cusack; did not object to the testimony of
William Scofield about that assault; stipulated to what he claims
was an incomplete and prejudicial response by the court to juror
questions regarding the mitigating factors of extreme duress and
moral justification; did not object to instructions permitting the
jury to consider nonviolent conduct in aggravation, and did not
object or seek admonishment regarding allegedly improper
penalty phase argument which included reference to possible
unproved escapes, personal insights and background of the
prosecutor, excuses for “distasteful” prosecution witnesses, a
suggestion that “phantom” mitigating evidence could be
considered aggravating, a misleading assertion that coperpetrator
Hefner had no criminal record, misleading argument that
petitioner was the “bad seed” in a “nice” family, use of age as an
aggravating factor, and portrayal of the sentencing process as a
mechanical mandatory weighing process.
Petitioner’s principal claim is, however, that counsel failed
to investigate, discover, and use mitigating evidence regarding
petitioner’s upbringing in conditions which, he claims, would
have explained to the jury his resort to drugs and alcohol and,
ultimately, to these offenses. He alleges that his family was not
supportive and loving, that his parents engaged in interspousal
conflict, physical battering, verbal abuse, labeling and
mistreatment. Petitioner was the fifth child. He was born with
severe club feet which required that he wear splints and braces
for three years. He was stigmatized and isolated as a result. His
condition caused severe financial problems and stress in the
family.
93
The family moved at least 20 times by the time petitioner
was 16 years old. This disrupted and undermined his education
and social development, and contributed to feelings of insecurity
and low self-esteem. When petitioner was 13, a potential seizure
disorder was diagnosed and brain damage was suspected as a
cause of his problems. He first experimented with drugs in
grammar school when his father abandoned the family. During
adolescence petitioner experimented with a wide variety of street
drugs. His long-term drug use affected his ability to concentrate
and impaired his mental functions.
Petitioner allegedly suffers from a mild neuropsychological
impairment and has a significant discrepancy between verbal and
nonverbal memory. He has mild motor function deficits and
difficulty in complex/abstract thinking. In the structured
environment of juvenile camp his behavior improved.
Notwithstanding his problems, he was capable of and performed
altruistic acts of sincere kindness.
Petitioner contends that this, and other mitigating evidence
would have demonstrated that the evidence offered by the
prosecution was inaccurate and misleading. The prosecution
evidence could have been impeached and its impact diminished.
Our issuance of an order to show cause on these allegations
reflected a preliminary determination that, if true, they stated a
prima facie case for relief (Jn re Hochberg (1970) 2 Cal.3d 870,
876, fn. 4.)
Director of Corrections filed a return to the order to show
cause accompanied by a declaration by trial counsel Roger
Agajanian in which trial counsel states that while he had
extensive contact and conversations with members of
petitioner’s family, there was no mention of petitioner having
been abused by his parents, of his childhood deformity, or of a
dysfunctional family environment. Counsel declared that even
had he known of petitioner’s family background and the abuse
he would not have presented the evidence. It was his opinion
that any attempt to gain sympathy for petitioner would have
95
failed. Had he presented the evidence, he could not have had
petitioner’s parents present at the trial and would have given the
jury the impression that petitioner’s family had abandoned him.
His strategy of garnering sympathy for family members had been
successful in prior murder cases in which the jury returned not
guilty verdicts. He did not follow up with the two court-
appointed experts, as their testimony would not have been
consistent with that of counsel’s own expert regarding
petitioner’s mental state at the time of the offense. Counsel said
his ignorance that petitioner had stabbed Kathy Cusack during
the 1978 assault on Scofield was due to petitioner’s failure to tell
him about Cusack.
After reviewing the return and petitioner's traverse, we
concluded that it would be necessary to resolve several disputed
factual matters in order to determine whether petitioner is
entitled to relief. The referee was therefore ordered to take
evidence on and make findings of fact on the following
questions, the relevance of which to petitioner’s claims will be
explained below:
1. Did trial counsel Roger Agajanian interview members of
defendant’s family and/or family friends, and, if so, what
information did he obtain from them which did or should have
alerted him tw the existence of potentially mitigating penalty
phase evidence?
2. Did trial counsel conduct any other investigation of
penalty phase defenses or become aware of potentially mitigating
evidence from any other source?
3. Did the court-appointed psychiatric experts, Dr. Kaushal
K. Sharma and Dr. Seawright Anderson, view any postarrest
videotape of petitioner; did trial counsel review reports by those
experts regarding defendant’s mental condition; and did counsel
receive and respond to the requests made by Dr. Kaushal K.
Sharma on May 8, 1983, and May 31, 1983, for additional
background information regarding defendant?
97
4. What was the content of the report to the court by Dr.
Seawright Anderson?
5. In preparation for trial did trial counsel review any
medical and/or psychiatric/psychological _ records; school
records; juvenile court records; or other materials relevant to
defendant's history?
6. Was trial counsel's decision to forego presentation at the
penalty phase of evidence regarding defendant’s childhood and
adolescence an informed and knowledgeable decision?
7. Was trial counsel's penalty phase strategy affected in any
way by the fee arrangement between counsel and defendant’s
parents?
Il
Evidence Received at the Hearing Before the Referee
Petitioner presented evidence to support the factual
allegations of the petition related to trial counsel’s lack of
preparation and investigation of potentially miti gating evidence.
He also presented evidence to support his claim that mitigating
98
evidence was available. That evidence, discussed in greater
detail below, included the testimony of family members and
friends regarding the discordant atmosphere in the Visciotti
family home created by an unending series of physical and
verbal confrontations between petitioner’s parents; physical
punishment of petitioner and his siblings; threats of violence:
impermanence caused by the family’s numerous moves and its
impact on school attendance and the ability to make lasting
friendships; the children’s efforts to escape the household
turmoil by hiding, leaving the house, early marriage, and resort
to drugs as “self-medication.” Social workers, psychologists,
and other witnesses testified regarding the impact of these events
on petitioner’s development and ability to function in society.
Petitioner’s theory is that all of this evidence might have
been presented to the jury had counsel discovered it and elected
a penalty phase tactic other than an attempt to elicit sympathy for
petitioner’s family - the “family sympathy” defense. The
evidence offered at the evidentiary hearing regarding trial
counsel’s lack of preparation and investigation was
uncontradicted. The recollections of family members regarding
some occurrences during petitioner’s childhood differed in some
respects, but the evidence that the family life was chaotic and
that petitioner suffered parental verbal abuse throughout his
childhood was uncontradicted. The evidence offered at the
hearing before the referee is summarized below.
A. Trial counsel’s investigation and preparation for
penalty phase trial.
Roger Agajanian was admitted to the bar in this state in July
1973. He had never tried a capital case that went to the jury
before the Visciotti case, and had never conducted a penalty
phase trial. He had tried several murder cases between 1981 and
1983, however. He decided prior to jury selection in the
Visciotti trial, when he saw petitioner’s videotaped reenactment
of the murder, that he would attempt to elicit sympathy for
petitioner’s family as his penalty phase strategy. He believed
that, although sympathy for petitioner could not be expected,
100
sympathy for petitioner’s parents might be. His defense would
therefore suggest that the parents were nice people whose son
should not be killed.
Evidence was also presented that when he made that
decision Agajanian had never represented a client at the penalty
phase of a capital case and in none of his self-described
successful presentations of a family sympathy defense in prior
cases was family sympathy evidence relevant to any issue in the
case and in none could the effort be accurately described as
a)
9%
“successful.”* The other basis for counsel’s hope that family
sympathy might sway the jury was his belief that, in a widely
reported case in which Agajanian had no involvement, a jury
acquitted the defendant of a narcotics-related charge and in doing
so was influenced to accept an entrapment defense by the loyalty
2. In one of the four cases in which counsel claimed to
have relied successfully on eliciting juror sympathy for the
family of the defendant, there were no jurors. In another, the
defendant was convicted as charged.
101
displayed by the defendant’s wife who was regularly in
attendance at the trial.*
Agajanian testified that he did not conduct formal
interviews with any members of petitioner's family in
preparation for the penalty phase. He did no investigation and
did not have a social worker or investigator do any investigation
to seek potentially mitigating evidence. He conceded that when
he made his decision regarding trial of the penalty phase he had
no information about petitioner’s background other than what
appeared to him to be “good aspects” of the family. The
decision that no effort would be made to pursue a sympathy
defense based on petitioner himself was made without knowing
what other evidence for a defense he might find if an
investigation was pursued. While he was aware that petitioner
3. The court has not considered whether family
sympathy is within any statutory factor (§ 190.3) or an aspect of
the defendant’s character or record which the jury must be
allowed to consider. (See People v. Cooper (1991) 53 Cal.3d
771, 844.) Inasmuch as we assume arguendo that petitioner’s
trial counsel’s decision to rely on this penalty phase strategy was
not competently made, we need not do so here.
102
had abused drugs, he had never had a jury return a favorable
verdict when the defense was based on drug use.
Agajanian testified that he had no information about
petitioner’s family when he made his decision on penalty phase
tactics. That testimony was contradicted by his expert, Dr. Louis
Broussard, who testified that Agajanian told him that there was
some “brutality” in the family. Dr. Broussard also testified that
Agajanian had explained the Lienieed scope of the examination
Broussard was asked to perform and report on was appropriate -
because the “DeLorean case” had convinced Agajanian that a
jury was less likely to convict if there was substantial family
support.
At the request of Agajanian, the trial court appointed two
experts in the mental health field, but only to assess petitioner’s
competence to stand trial and sanity at the time of the offenses.
Neither testified at the trial. Both testified at the evidentiary
hearing.
103
Dr. Seawright Anderson, a psychiatrist who had been
appointed in approximately 25 capital cases prior to his
appointment in the Visciotti case, testified that in such
appointments defense counsel usually contacts him to advise him
of the things in which the attorney is particularly interested. It
is his practice to await such contacts until the attorney provides
him with the arrest report and background information which the
court does not provide. His staff contacts the attorney if the
attorney has not already provided the information needed.
Dr. names was appointed to evaluate petitioner only
under sections 1026 and 1368, i.e., to determine if petitioner was
sane at the time the offenses were committed and whether he
was competent to stand trial. In evaluating petitioner, Dr.
Anderson read the arrest report and documents from the Youth
Authority and Department of Corrections compiled at the time
of sania prior commitment after conviction of assault with
a deadly weapon. His staff obtained those documents for him
from Agajanian’s office. He reviewed no other documents. The
104
notes of his office manager indicated that Agajanian wanted Dr.
Anderson to consider petitioner’ s drug history, his prolonged use
of cocaine, and the “new diminished capacity.” Dr. Anderson
did not review the videotaped reenactment of the offense or the
videotape of petitioner confessing to the crimes. He was
provided with no previous drug history, no probation reports,
and no psychological reports from the Youth Authority or
Department of Corrections.
Dr. Anderson interviewed petitioner for slightly over one
hour. He did not administer any psychological tests, although
they would have been useful if diminished capacity were in
issue. They were not necessary to determine Sanity and
competence. Dr. Anderson recommended that an
electroencephalogram (EEG) and computer assisted tomography
(CAT) scan be administered to rule out the possibility of organic
brain disorder, as petitioner had a history of head injury and
prolonged substance abuse. He would have assisted Agajanian
in arranging for those tests, but was not asked to do so. Once his
105
report was sent to Agajanian, he heard nothing more about the
case.
During the interview with Dr. Anderson, petitioner did not
state that he had boon mistreated by his parents. Dr. Anderson
testified that it is not unusual for a patient to omit this as such
reference brings up uncomfortable fee lings and the patient is
depressed. In Dr. Anderson's experience it is not unusual for a
patient to minimize abuse, especially when it is inflicted by the
patient’s parents.
In his report, Dr. Anderson concluded that petitioner was
competent to stand trial and was sane at the time of the offense.
He also reported, however, that as a result of prolonged drug
abuse and paranoid ideation, petitioner suffered from diminished
capacity at the time the charged offense was committed and was
unable to meaningfully and maturely reflect on the gravity of the
contemplated acts. He also concluded that petitioner was
addicted to cocaine, amphetamines, and marijuana, and
recommended that an EEG and a CAT scan be performed to rule
106
out the possibility of organic brain disorder, and that
psychological tests be administered to obtain more information
about petitioner's basic personality structure.
Dr. Kaushal K. Sharma, a forensic psychiatrist, was the
second expert appointed by the court. Agajanian did not supply
him with any background information regarding petitioner and
did not reply to a letter asking for that information. Dr. Sharma
went personally to Agajanian’s office and obtained some
documents. He never spoke with Agajanian. He examined
petitioner and, on July 19, 1993, wrote to Agajanian stating that
he had not detected any psychiatric impairment. The letter
explained, however, that the statement was based on a very
limited interview and a rather superficial examination of the
documents supplied to him. The letter was not intended to be a
report. Instead it was a means of closing Dr. Sharma’s file
because he did not have the time or patience to continue
“bugging” Agajanian for the information he had requested from
him.
- 107
Based on these reports, Agajanian concluded that neither of
these experts would be helpful to the defense. He therefore
contacted Dr. Louis Broussard, a psychologist who had
undertaken examinations for him in approximately 20 prior
cases, two or three times under appointment, and had testified
for Agaianian two or three times. Dr. Broussard testified that
Agajanian often contacted him after a case was already in trial in
order to deprive the prosecution of access to his reports.
In the Visciotti case, Agajanian told Broussard only that he
wanted testing and findings, and that it was a murder trial. Dr.
Broussard spent no more than one hour with Agajanian and did
receive some information about “brutality” in the family from
Agajanian, but he did not receive any social or family history.
They did discuss diminished capacity. Agajanian was aware that
the defense had been abolished, but Agajanian believed that
evidence of diminished capacity could come in nonetheless and
“the jury could make up its mind.”
108
Dr. Broussard’s testing and interview took no more than
two and one-half hours. It was performed on July 22, 1983, two
days after the People rested in the guilt phase of the trial.’ He
did not obtain a comprehensive social history from petitioner,
and told Agajanian that he should obtain a licensed clinical
social worker to do that. His interview was only to find out what
happened when the crimes were committed and to ascertain why
from the defendant’s point of view. He did not obtain a drug
history as the defendant was “a little bit out of it” on that day and
was not terribly responsive. Dr. Broussard first explained his
failure to attempt a further interview with defendant on the basis
that he had the information he needed for his report and did not
think he would obtain more information in a further interview
because, based on the tests he had administered, he believed that
the defendant was then operating at his capacity. He later
testified that the reason he did not see the defendant again and
4. Agajanian explained his delay in contacting Dr.
Broussard by stating that he planned to use the expert only at the
penalty phase. In fact, Dr. Broussard testified only at the guilt
phase.
109
perform additional tests was the time problem. He was hired late
in the case and was told that he would testify in the week after he
first saw Agajanian about the case. Agajanian said that Dr.
Sharma had advised Agajanian that it was a very serious case
and would require comprehensive investigation and that the cost
of those investigations would be approximately $2,500, which
Agajanian was not willing to take the time for or to pay for.
Dr. Broussard testified that his focus was limited to guilt
phase considerations. Agajanian did not want more than pocsent
psychological factors to be considered, as his strategy was to
show family solidarity. He did not want an opinion on childhood
abuse in the report or for Dr. Broussard to indicate that there was
any problem in the family, no matter how important information
about the family was.
Additional lack of preparation for the penalty phase of the
trial was offered in evidence that Agajanian did not review the
prosecutor’s file. Although it was the practice of the district
attorney at the time of the Visciotti trial to make the case files of
110
prosecutors available to defense counsel, Agajanian was not
aware that during petitioner’s 1978 assault with a deadly weapon
on William Scofield, petitioner had also repeatedly stabbed
Kathy Cusack who was pregnant. Agajanian did not send for the
police report or go through the prosecutor’s file to read it in
advance of trial and thus was surprised and unprepared to face
that evidence. He stated that he had not seen the report and was
not aware of the Cusak incident because petitioner lied to him.
Agajanian testified that at the time of trial petitioner's
father, Luigi Visciotti, had paid only a fraction of the $25,000
fee, and that over the course of the representation Luigi had paid
a total of approximately $5,000 and done some tile work for
Agajanian because he had no more money. Agajanian believed
he was owed about $15,000. Luigi testified that a boyfriend of
his daughter Ida had given asionien a $17,000 lien on the
friend’s anticipated accident settlement. Luigi believed that he
owed Agajanian $7,000 when the trial began and had paid off the
debt with tile work, tree trimming, and cleanup work.
111
B. Undiscovered mitigating evidence.
The evidence that counsel did not discover and present
consisted.principally of the social, medical, and family history of
petitioner. One of petitioner’s experts, Shirley Reece, M.S.W.,
a licensed clinical ; ~ial worker and professor at the University
of California at San Francisco, prepared a social history of
petitioner. She described that history as offering “overwhelming
mitigating circumstances” in “an absolutely horrendous family
history.” The family and social history came from hospital,
school, probation, Youth Authority, and Department of
Corrections records and from information supplied by close
family members.
Professor Reece testified that the interaction between
petitioner’s parents was extremely volatile, tiostile. and mutually
abusive, both physically and verbally. Without exception the
children described the family as chaotic, stating that they lived
a life of terror. They were always frightened and often worried
that the parents would kill each other. Petitioner's father
112
continually berated him, called him stupid and retarded, and
threatened to break his legs. The children were blamed for the
family’s difficulties, and some were beaten with a belt and
slapped. Economic problems and the number of children caused
the family to move often which had a profound effect on the
children. Petitioner left kindergarten after nine days and was not
re-enrolled in school for the first grade for two years. The
overall record of school attendance and withdrawal was -
appalling and destructive to petitioner’s development. That
family situation, petitioner’s short stature, and the epithets used
by his father which petitioner “internalized” and began to believe
were true, led to a person who was markedly lacking in self-
esteem and ayaaees. He thought he could never do anything
right and could never do anything to please his parents. He was
highly self-critical and blamed himself for things for which he
had no responsibility such as his parents’ difficulties. He had
113
suicidal ideation and had nowhere to turn other than drugs for a
way out.”
Jay Jackman, M.D., an expert in forensic psychiatry with
extensive experience in substance abuse cases, reviewed the
same background information. Prior to his testimony, he had
reviewed declarations by members of petitioner’s family, the
trial testimony of petitioner, the videotapes in which petitioner
reenacted the crime and was interviewed by police, as well as
numerous other medical, Department of Corrections, Youth
Authority, probation, and school records related to petitioner, all
of which were available and could have been discovered by
Agajanian with reasonable investigation. He examined petitioner
twice.
In the opinion of Dr. Jackman, it is necessary to spend a
minimum of 15 to 20 hours interviewing a capital defendant.
5. Professor Reece interviewed petitioner’s parents, who
engaged in a heated argument during the interview. She
described the event as “quite extraordinary,” testifying that the
parents shouted and menaced one another to the point that a
staff member came from another room to ask if they could “tone
it down.”
oo hee eahamaael
CO Er ae fowtern
114
That time is particularly important in cases of childhood abuse
because it is necessary to develop a relationship of trust. Persons
with a history of abuse are extraordinarily protective of their
families. They are defensive about their own abuse history and
are very reluctant to talk about it. He was able to spend only
about 10 hours in interviews with petitioner because of time and
monetary constraints, but if he were testifying before a jury he
would do a longer workup. |
Petitioner was born with club feet, a moderately severe
congenital abnormality. Dr. Jackman testified that this had a
very negative effect on both petitioner and his family. Treatment
for the condition was expensive and strained the resources of the
family. Petitioner’s mother, Catherine, never oan outside the
home and his father, Luigi, was a marginal wage earner.
Corrective treatment prevented petitioner from walking until he
was three years old and required first Dennis Brown splints and
then special shoes which the family could not afford without
help from petitioner’s grandparents, a factor that impacted on his
115
father’s self-image. Luigi “took it out” on the children and in
particular on petitioner whom he resented. He used threats to
break petitioner’s legs to terrorize him, saying he had paid to
have the legs fixed and would break them again. Although
petitioner had no memory of the conditior and treatment, Dr.
Jackman believed that the birth handicap had a colossal and
devastating effect on petitioner’s self-image because from his
earliest self-awareness, he was aware that he was different from
other children. The result was feelings of inadequacy,
incompetence, inferiority, worthlessness and low self-esteem.
Petitioner told Dr. Jackman that he began to experiment
with drugs at age eight when he was exposed to marijuana,
apparently by boyfriends of his sisters. The materials supplied
to Dr. Jackman and the declarations from family members
described the Visciotti home at that time, and throughout
petitioner’s childhood, as chaotic, a battle zone, hostile and
nasty, where the parents continuously verbally and physically
abused each other and the children. There were no expressions
116
of love between the parents or from the parents to the children.
Petitioner’s parents called him an “asshole,” a “mother fucker,”
“stupid,” and “retarded.” His father told him he would never
amount to anything and subjected him to a series of devaluing
comments.
The family moved at least 20 times while the children were
growing up. The children changed schools often, were never up
with their classes, and had few friends in school. As a result
most of the children disliked school and attended sporadically.
The constant moves impacted petitioner’s ability to function in
school and in his social world. He was always an outsider.
The battles between petitioner’s parents involved screaming
that could be heard more than a block away. His mother threw
objects at his father. The fighting was so intense that the
children feared that their parents would kill each other. When
they were young the children hid in their bedrooms or closets
when ihe fights occurred. When older they left the house.
Petitioner’s older sisters married in their midteens, in part to
117
escape the home environment. Only three of the children
remained in school to graduate from high school. On three
occasions, petitioner’s father abandoned the family and moved
in with women friends.
Petitioner’s first use of drugs coincided with the birth of his
younger brother Tony, one of the occasions on which his father
abandoned the family.
Petitioner’s reaction to his parent’s battles was to hide ina
dark place. He also found hiding places in abandoned cars
where he could spend time away from the home situation.
While in Youth Authority custody and away from the
family, petitioner’s behavior and his schooling improved
markedly. He was not a behavior problem and did all jobs
expected of him. Staff members believed that he was not a
typical delinquent and had him tested for a brain abnormality. An
EEG was abnormal and suggested a seizure disorder so Dilantin
was prescribed. While taking the medication petitioner did not
abuse drugs and his behavior was significantly improved. He
was not considered by Youth Authority staff to be a drug abuse
problem. Notwithstanding the family situation, petitioner always
expressed a desire to go home when in Youth Authority custody.
Youth Authority staff noted, however, that what appeared to be
a close-knit family was at the point of falling apart, a problem
that terrified petitioner to the point that he stuttered when he
talked about it. Whenever petitioner was released to the family’s
disorganized psychological environment, which Dr. Jackman
termed a “toxic” environment, the negative behavior and drug
abuse returned. Dr. Jackman testified that it was not unusual for
an abused child to still love and feel attached to the parents.
Dr. Jackman believed that until petitioner was eight his
method of escaping the family situation was physical - he
absented himself from the ine Later, drugs afforded him an
alternative means of escape. Between the ages of eight and
twelve petitioner used alcohol and Seconal, a sedative hypnotic.
The drug relieved a psychotic mood, a painful, unpleasant mood
state caused by the family situation, and made him feel
119
-
“mellow.” Dr. Jackman described this drug use as a self-
medication pattern often seen in children who use self-
medication to control the undesired, unpleasant moods they
have, changing drugs as their mood changes.
In his early teens, petitioner began to use amphetamines,
preferentially “uppers” to overcome depression as the “downers”
he had used before no longer had the desired effect. At that time
he was doing very poorly in school and missed as many days as
he attended. He had no social relationships and was what Dr.
Jackman described as “basically a depressed kid.” At 15
petitioner began using cocaine which became his drug of choice
by the in he was 18. In his later teens, petitioner also used
what petitioner described as “cannabis,” but which Dr. Jackman
testified was actually phencyclidine or PCP, a drug that distances
people from their experience so that they become dispassionate
observers of what goes on in their world. This drug enabled
petitioner to see and participate in the family but not feel what
went on emotionally. Most of the criminal conduct in which
120
petitioner engaged occurred during a period when he had
progressed to injecting PCP intravenously several times a day in
order to have that detached experience.
Dr. Jackman believed that petitioner's criminal behavior
was directly related to his drug use. The behavior was
impulsive. Petitioner was not a criminal or antisocial
personality. He had a number of “prosocial” behaviors which
Dr. Jackman had not seen in antisocial personalities who were
killers. |
Additional potentially mitigating evidence of which counsel
had no knowledge was offered in the testimony of family
members whose declarations had been reviewed by Prothessr
Reece and Dr. Jackman.
The family members testified consistently with their trial
testimony that petitioner was a kind and considerate person when
not under the influence of drugs. Petitioner’s siblings also
testified, consistent with the social history recited by Professor
Reece, about the chaotic family life brought about by the volatile
121
nature of the relationship between their parents, the alleged
physical and psychological abuse of petitioner and his siblings
by their parents, and the family’s peripatetic existence. On
cross-examination, however, the siblings conceded that the
instances of “physical abuse” by their mother that they had
described occurred when the children were being punished for
misbehavior. Their testimony suggested that, contrary to the
evidence offered at the penalty phase, petitioner was not the only
“bad seed” in an otherwise loving family. Several of his siblings
had criminal records related to substance abuse. His father also
had a criminal record. It also appeared, however, that the family
was a loving family in which petitioner’s older sisters, although
they left the home to marry in their midteens in order to avoid
the turmoil, returned home regularly on Sundays for family
meals.
122
IV
Referee’s Report/Petitioner’s Exceptions/F indings of this
Court
After an evidentiary hearing, Judge Moore filed her final
report on November 17, 1994. Petitioner has filed exceptions to
the report and both petitioner and respondent have filed briefs on
the merits.
In this proceeding, the referee’s conclusions of law and
resolution of mixed questions of law and fact are subject to
independent review. The findings of fact are not binding on this
court, but are given great weight if supported by substantial
evidence since the referee hes had the opportunity to observe the
demeanor of the bpemnens and the manner in which they
testified. (Jn re Hitchings (1993) 6 Cal.4th 97, 109: In re
Marquez (1992) 1 Cal.4th 584, 603.)
The findings of Judge Moore in response to the court’s
questions are summarized below:
123
Question 1. Yes, Roger Agajanian interviewed most of
petitioner’s very large family, largely with the family as a whole
as his intention was to ens sre consistency in their testimony. He
asked them what the family was like. The information he
obtained was that the family gave the appearance of being
cohesive, concerned, supportive and close to each other. He did
not uncover nfensatinn that the family was dysfunctional. It
was his decision to utilize the positive image of the family as
mitigating penalty evidence by going forward with the defense
of sympathy toward the family so the jury would conclude
petitioner, as the one stray, was worth saving because the family
was so good. Even had petitioner been abused by his family,
counsel would not have introduced such evidence in an attempt
to garner sympathy for petitioner since he consciously decided
not to delve into those areas. He knew that once the jury heard
about the senseless and heinous nature of the case and the
stabbing of a pregnant woman, they would not care how terrible
petitioner’s childhood may have been. He wanted the jurors to
124
focus on someone other than petitioner. He saw the positive
appearance the family portrayed. Having seen other situations
where jurors were lenient toward a defendant because they liked
the defendant’s family, he made the choice to focus on
petitioner’s family, believing the jury would reject any attempts
to place petitioner in a sympathetic position.
Petitioner objects to the referee’s finding that Agajanian
interviewed members of the family. He claims, and the record
supports the claim, that Agajanian did not conduct formal
interviews with any members of petitioner’s family other than
petitioner. He met with some of them when he was retained and
conversed with some of them at luncheon meetings during the
trial. No matters of substance were discussed in those
conversations. Petitioner’s background and the family history
were not discussed. Agajanian did not question any family
members, individually or together, with the purpose of gathering
evidence or information that might be used at the penalty phase
of the trial.
125
We conclude that, while Agajanian did not “interview”
members 0: petitioner’s family as this court intended the word
to be understood, he did speak with them and obtained
information about the mitigating evidence that he subsequently
elicited from the family members during the penalty phase of the
trial.
Petitioner also objects that the referee’s response goes
beyond the question put by the court, erroneously states that at
the time in question petitioner had been “convicted” of a heinous
crime, and erroneously assumes that Agajanian was aware that
evidence of the stabbing of Kathy Cusack would be presented at
the time he elected to present only a family sympathy defense.
These claims have merit. Agajanian made his penalty phase
decision before the trial. He conceded at trial and in this
proceeding that he did not know evidence of the Cusack stabbing
was to be presented.
Question 2. No, trial counsel did not conduct any other
investigation of penalty phase defenses or become aware of
126
potentially mitigating evidence from any other source. He did
not care what a social history of the family and petitioner
demonstrated in that, because of the heinous nature of the crime
and the lack of remorse demonstrated in police videos by
petitioner, he had no intention of introducing any evidence in an
attempt to draw sympathy to his client. Instead trial counsel
chose to attempt to draw sympathy to the family of defendant in
an attempt to make it difficult for the jury to decide this family’s
one stray, its son and brother, should be executed.
Petitioner does not object to the referee’ s finding, which is
supported by the evidence.
Question 3. Neither court-appointed expert (Dr. Kaushal K.
Sharma and Dr. Seawright Anderson) viewed any post-arrest
videotapes. Trial counsel did review the formal written report of
Dr. Anderson, and a letter of Dr. Sharma which stated that on the
basis of a very limited interview with petitioner, Dr. Sharma was
not able to detect any information which would suggest
psychiatric impairment in the defendant for the purpose of a
127 ©
psychiatric legal defense. Counsel decided not to use either
doctor based on those reports. Instead he hired Dr. Broussard,
a licensed psychologist with whom he had worked in the past
and with whom he was confident he could work. Counsel
received and did not personally respond to the requests made by
Dr. Sharma. Most likely counsel’s office staff provided the
police reports and other documents Dr. Sharma had requested in
his letters of May 8 and May 31 to counsel.
Petitioner does not object to the finding that the experts did
not view the videotapes. That finding is supported by the
evidence. He points out, however, that the record establishes
that the “other documents” eventually supplied to Dr. Sharma
were limited to an exrest record and “rap sheet.” They did not
include any other background information about petitioner. We
agree.
Question 4. The report of Dr. Anderson was submitted as
an exhibit to the referee’s report.
:
128
Petitioner does not object to this finding. Dr. Anderson's
conclusions have been summarized above.
Question 5. No, counsel did not review any records or other
material relevant to petitioner’s history.
Petitioner does not object to this finding which is supported
by the evidence.
Question 6. Yes, trial counsel’s decision to forego
presentation of evidence at the penalty phase was an informed
and knowledgeable decision. Counsel was an experienced
criminal trial attorney who used his knowledge, experience,
guateesianal instinct and intuition in making his decision.
Petitioner objects that this finding, which is a conclusion of
law or resolution of a question of mixed fact and law, is not
supported by the evidence. The term “informed and
knowledgeable decision” has a specific meaning when used in
assessing the adequacy of counsel in the representation of a
defendant charged with a crime. An attorney’s exercise of
discretion in making tactical decisions regarding trial strategy
129
must be both reasonable and informed. An informed decision is
one made on the basis of reasonable investigation. (People v.
Ledesma (1987) 43 Cal.3d 171, 215.) Although counsel has
“wide latitude and discretion . . . that discretion must be a
reasonable and informed one in the light of the facts and options
reasonably apparent to counsel at the time of trial, and founded
upon reasonable investigation and preparation.” (People v.
Frierson (1979) 25 Cal.3d 142, 166, italics added; see also, /n re
Marquez, supra, 1 Cal.4th 584, 606; In re Fields (1990) 51
Cal.3d 1063, 1069; In re Cordero (1988) 46 Cai.3d 161, 180.)
“{Sltrategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.
In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness
130
case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.”
(Strickland v. Washington (1984) 466 U.S. 668, 690-691.)
The referee apparently concluded that Agajanian’s decision
__ that presentation of a “family sympathy” defense at the penalty
phase was preferable to an attempt to offer mitigating evidence
was reasonable and justified his failure to undertake any
investigation. We need not decide here whether counsel
representing a capital defendant must investigate all potential
sources of mitigating evidence, including avenues of
investigation which counsel has no reason to believe may be
fruitful. We assume arguendo that, since Agajanian apparently
was put on notice of possible family discord during petitioner’s
youth, his decision to present a “family sympathy” defense
without investigation to determine the nature of the evidence that
was available was not a decision that a competent attorney
representing a capital defendant would make.
131
Question 7. No, trial counsel’s penalty phase strategy was
not affected in any way by the fee arrangement. Petitioner’s
father had fully paid by way of cash, a $17,000 lien ona personal
injury case of his daughter’s friend, and some tile work done by
the father at counsel’s office. The lien proceeds never
materialized. There is no indication that counsel withheld any
services, investigation or use of experts because of the fee
arrangement.
Petitioner objects to this finding on the ground that the
delay in retaining Dr. Broussard was attributable to the failure of
petitioner’s father to respond to Agaj anian’s gumneie for money.
The record supports the findings of the referee. While the
lien proceeds had not yet materialized and may never have done
so, the fee had otherwise been paid. This court’s question was
in response to petitioner’s allegation that counsel suffered from
a conflict of interest engendered by the fee arrangement that
made it impossible for him to offer evidence that the family was
dysfunctional and that petitioner’s parents had abused him. The
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132
fee arrangement had nothing to do with the retention of Dr.
Broussard and there is nothing in the record to suggest that when
Agajanian elected the family sympathy strategy he had any
reason to consider engaging another expert.
Petitioner also complains that the referee made other
findings she was not asked to make, and did not make any
recommendation regarding his entitlement to relief. Because this
court has access to and has reviewed the entire record on appeal,
and is therefore able to make an assessment of prejudice, the
court did not request that a recommendation be made regarding
relief. The findings of the referee are broader in some respects
than the questions submitted by this court. Nonetheless, as
petitioner recognizes, when this court appoints a referee to take
evidence and make findings, the findings are not binding on this
court which will make an independent review of the evidence
and of the referee’s resolution of mixed questions of law and
fact. Ultimately, therefore, the findings on which resolution of
133
petitioner’s claims depend, are made by this court. The possibly
extraneous findings of the referee are irrelevant.
Petitioner also complains that the referee excluded evidence
regarding State Bar proceedings which led to the suspension of
trial counsel from practice, evidence petitioner asserts was
relevant to counsel’s credibility, and would have revealed a
pattern of indifference and inattentiveness to the needs of his
clients. Petitioner fails to identify how any material in those
records is relevant to specific questions on which the referee was
ordered to take evidence and make findings of fact, however. To
the extent that there may be relevance to the ultimate question of
whether counsel provided ineffective assistance in the murder
prosecution, this court may take judicial notice of the records of
this court in the State Bar proceedings (Evid. Code, §§ 452,
subds. (c)&(d), 453), and we have granted petitioner’s request
that we do so.”
6. Agajanian was first suspended for four years by a
July 10, 1990, order in Bar. Misc. 5560. The order was stayed,
probation granted, and an actual suspension of two years made
a condition of probation. On October 16, 1991, an actual
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:
-
.
134
Petitioner also complains that the referee prevented inquiry
into the relationship between counsel and the trial judge, and into
counsel’s lack of knowledge of Judge Fitzgerald’s past
knowledge of petitioner and the judge’s comments about
suspension of three years to be concurrent with the former
Suspension was ordered in a matter in which eight additional
complaints relating to matters occurring between 1980 and 1989
were consolidated (see Jn re Agajanian,S022257), and a third
suspension was ordered on June 17, 1993, on a finding that
probation had been violated. Agajanian resigned from the bar,
with additional disciplinary charges pending, on June 30, 1994.
During the time that Agajanian represented petitioner on
appeal from this conviction, he filed a 30-page opening brief,
purported to adopt the amicus curiae brief filed by counsel from
the California Appellate Project, and filed no reply brief. While
representing petitioner he was convicted of two counts of
criminal contempt (18 U.S.C. § 401(3)) in the United States
District Court for the District of Vermont in December 1985.
That judgment was affirmed on appeal. (United States v.
Agajanian (2d Cir. 1988) 852 F.2d 56.)
The bases for the disciplinary proceedings that followed
the proceeding related to the contempt conviction were
complaints that Agajanian had abandoned clients, failed to
respond to client communications, made false representations
and misrepresentations, lost files, and failed to perform
promised services. Evidence was admitted at the evidentiary
hearing that during the time he represented petitioner, Agajanian
did not respond to client communications, failed to make court
appearances, did not visit clients in jail or show up in court or
other places as promised, and was distracted by a civil suit
against a nonlawyer who shared his office and was accused of
fraudulent sales of trust deeds.
135
accomplice Hefner. Petitioner argues that this inquiry would
have exposed additional evidence of trial counsel’s inadequate
preparation for trial, including his failure to procure a transcript
of the Hefner trial in order to review the testimony of the
witnesses at that trial. We find no error or impropriety. Again,
the evidence was not related to the specific questions put to the
referee. Only disputed issues of fact whose resolution is
necessary to disposition of the petition are the subject of the
reference order. Counsel’s failures in this regard are not
disputed issues of fact.
Petitioner also objects to appendices to the referee’s report
in which she offers comments on some of the evidence, and asks
that the comments be disregarded. To the extent that these
comments offer insights into the referee’s assessment of witness
credibility, they may be considered and we have done so where
appropriate.
Respondent urges the court to adopt the findings and
conclusions of the referee, noting that the referee concluded that
}
(136
petitioner’s family was a paradox. It was dysfunctional, but was
also close-knit. Respondent also notes that some of the
testimony of petitioner's siblings was inconsistent. They did not
all recall the same incidents. Moreover, some offered reasonable
explanations for what otherwise appeared to be unreasonable or
arbitrary infliction of physical and verbal abuse on the children.
The testimony of the family members was consistent in
many respect and their description of chaotic family life is
supported by the records compiled much earlier when petitioner
was in Youth Authority custody. The experts who relied on
those records as well as statements by the siblings concluded that
their parents’ verbal and physical abuse of the children, and of
petitioner in particular, had a marked impact on him and
contributed to his use of drugs. However, i evidence also
showed that the family was close-knit in many ways - the
children who had left the home returned for family dinners on
some Sundays and holidays, they visited petitioner while he was
137
in custody in youth and adult facilities, and all supported one
another in times of need.
Moreover, as we discuss below, petitioner’s effort to show
that if the jury had been made aware that his family background
led to his substance abuse and assaultive conduct while under the
influence of drugs a different penalty verdict would have been
reached is unpersuasive. It is so because the underlying
assumption that petitioner committed the assault and murder
because he was under the influence of drugs is not supported by
either the record in the habeas corpus proceeding or the record
on appeal.
Vv
Relief on Habeas Corpus
A habeas corpus petitioner bears the burden of establishing
that the judgment under which he or she is restrained is invalid.
(People v. Duvall (1995) 9 Cal.4th 464, 474.) To do so, he or
she must prove by a preponderance of the evidence, facts that
establish a basis for relief on habeas corpus. (People v.
138
Ledesma, supra, 43 Cal.3d 171, 243.) When the basis of a
challenge to the validity of a judgment is constitutionally
ineffective assistance by trial counsel, the petitioner must
establish either:
(1) Asa result of counsel’s performance, the prosecution’ s
case was not subjected to meaningful adversarial testing, in
which case there is a presumption that the result is unreliable and
prejudice need not be affirmatively shown (United’ States v.
Cronie (1984) 466 U.S. 648, 658-659: In re Avena (1996) 12
Cal.4th 694, 726-727); or
(2) Counsel’s performance fell below an objective standard
of reasonableness under prevailing professional norms and that
there is a reasonable probability that, but for counsel’s
unprofessional errors and/or omissions, the trial would have
resulted in a more favorable outcome. (Strickland v.
Washington, supra, 466 U.S. at p. 694; In re Avena, supra, 12
Cal.4th at p. 721; In re Alvernaz (1992) 2 Cal.4th 924, 936.) In
demonstrating prejudice, however, the petitioner must establish
139
that as a result of counsel’s failures the trial was unreliable or
fundamentally unfair. (In re Avena, supra, 12 Cal.4th at p. 721.)
“The benchmark for judging any claim of ineffectiveness must
be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” (Strickland v.
Washington, supra, 466 U.S. at p. 686.)
The question we must answer is whether there is a
reasonable probability that, but for counsel's errors and
omissions, the sentencing authority, would have found that the
balance of aggravating and mitigating factors did not warrant
imposition of the death penalty. (466 U.S. at p. 696.) While the
court must often be deferential to a tactical decision made by
criminal defense counsel in order to avoid chilling vigorous
advocacy and to avoid second-guessing counsel, we may not
abdicate our role in assessing competence.
It is not true, as petitioner asserts, that Agajanian elected the
penalty phase strategy of seeking sympathy for petitioner’s
140
\
family without doing any investigation whatsoever. His
examination of the family members who testified at the penalty
phase of the trial confirms that he had learned from them before
they testified some information regarding petitioner’s acts of
kindness and generosity and his artistic skill. And, although he
described his penalty phase theory as an attempt to elicit
sympathy for the family, mitigating evidence was presented
through their testimony. Nonetheless, as indicated earlier, we
will assume arguendo that counsel’s performance in this regard
fell below the objective standard of reasonableness under
prevailing professional norms demanded as an essential aspect
of a criminal defendant’s Sixth Amendment right to competent
representation.
Notwithstanding Agajanian’s multiple failings, however,
this is not a case in which there was a total breakdown of the
adversarial process within the meaning of United States v.
Cronic, supra, 466 U.S. 648. The failure of counsel to present
the mitigating evidence petitioner has now identified, or any
141
specific type of mitigating evidence, does not reflect such a
breakdown of the adversaria! process as to render the verdict
presumptively unreliable. (People v. Bloom (1989) 48 Cal.3d
1194, 1228, fn. 9; People v. Williams (1988) 44 Cal.3d 1127,
1152.) And, as we explained in /n re Avena, supra, 12 Cal.4th
at page 727, notwithstanding the broad language in the Cronic
opinion (supra, 466 U.S. at p. 659) to the effect that when
“counsel entirely fails to subject the prosecutions’ case to
meaningful adversarial testing,” the right to competent counsel
has been denied and the result of the trial is presumptively
unreliable, the actual application of Cronic has been much more
limited. Defendants have been relieved of the obligation to show
prejudice only where counsel was either totally absent or was
prevented from assisting the defendant at a critical stage.
Neither factor is present here. In other circumstances, the
petitioner must show how specific errors undermined the
reliability of the verdict. (United States v. Cronic, supra, 466
U.S. 648; In re Avena, supra, 12 Cal.4th 694.) Therefore, while
142
petitioner argues that he is entitled to relief without a showing of
prejudice, we conclude that he must satisfy the standards
established in Strickland v. Washington, supra, 466 U.S. 668.
As noted earlier, we will assume arguendo that Agajanian
failed to afford constitutionally adequate representation because
he allegedly (1) failed to investigate and discover mitigating
evidence as a result of his ignorance of the types of evidence a
jury might consider mitigating; (2) failed to present readily
available evidence that would have revealed to the jury the
extent to which petitioner was subjected to psychological and
physical abuse as a child, the impact the dysfunctional and
peripatetic family life had on petitioner’s development, and the
correlation between these events and petitioner’s resort to drugs;
(3) failed to prepare, which left him unaware of the scope of the
aggravating evidence to be introduced; and (4) delivered an-
unfocussed closing argument, during which he undercut his
client’s own case by telling the jury that the evidence of
143
petitioner’s mental and emotional problems was not mitigating,
prejudiced petitioner at the penalty phase of the trial.
Is it reasonably probable that the jury would have reached
a more favorable penalty phase verdict had Agajanian
represented him with greater competence? Petitioner argues that
it is. and that without knowledge of petitioner’s background the
jury was not able to understand and assess his true character and
thus could not truly assess his moral culpability. Respondent
argues that petitioner has failed to prove prejudice.
In In re Fields, supra, 51 Cal.3d at pages 1078-1079, we
addressed the process by which the court wesiets seabelies at
the penalty phase of a capital trial at which counsel was,
allegedly, incompetent in failing to present mitigating evidence:
“What kind of evidentiary showing will undermine conitenee
in the outcome of a penalty trial that has resulted in a death
verdict? Strickland [v. Washington), supra, 466 U.S. 668, and
the cases it cites offer some guidance. United States v. Agurs
(1976) 427 U.S. 97, the first case cited by Strickland, spoke of
144
evidence which raised a reasonable doubt, although not
necessarily of such character as to create a substantial likelihood
of acquittal. (See p. 113, fn. 22.) United States v. Valenzuela-
Bernal (1982) 458 U.S. 858, 873, the second case cited by
Strickland, referred to evidence which is ‘material and favorable
... IN ways not merely cumulative ... .’ In Strickland itself the
majority found trial counsel’s failure to investigate additional
mitigating evidence nonprejudicial, citing the weight of the
aggravating evidence and the fact that the essence of the
mitigating evidence had already been presented to the trier of
fact through defendant’s own words.”
Here, as we have noted, some mitigating evidence was
presented in the testimony of petitioner’s family members who
made the jury aware of the positive aspects of petitioner’s
character. In addition, petitioner’s expert, Dr. Broussard, had
testified at the guilt phase that petitioner had a minimal brain
“injury of a type associated with impulse disorder and learning
disorder, and that in his opinion petitioner was ina drug-induced
145
psychotic state at the time of the offenses and was not
completely aware of what he was doing during the robbery and
murder. Under the court’s instructions, that evidence might have
been considered mitigating at the penalty phase even though
petitioner’s counsel stated in closing argument that because the
jury had rejected the guilt phase diminished capacity defense, the
evidence was not mitigating.”
7. In reviewing the statutory factors relevant to the
penalty decision, Agajanian argued: “And ladies and
gentlemen, with respect to diminished capacity, when you ladies
and gentlemen returned this verdict of first degree murder and
found special circumstances, you indicated to all of us that you
did not find diminished capacity.
“So if you did not find diminished capacity, how can |
argue that as a factor of aggravation or mitigation. It just does
not apply. It’s not there.
“I think when you ladies and gentlemen found that - you
basically found him guilty of first degree murder and special
circumstances, you found that diminished capacity did not
reduce the nature of the robbery to something less than a
robbery, or the nature of the first degree murder to something
less than first degree murder.
“So that’s not a factor of mitigation or aggravation. It’s
just not there at all.
“The age of the defendant. I happen to consider 26 years
of age a rather young age, especially te lock a man in a cage for
the rest of his life.
“Accomplice, the indication here was that he was not an
accomplice or that his participation was minor - exactly the
146
Petitioner has not shown that Agajanian’s failure to prepare
to meet or counter the evidence about his assault on Kathy
Cusack was prejudicial. He does not suggest that this evidence
could have been rebutted. Our principal concern therefore lies
in Agajanian’s failure to present the additional mitigating
evidence about petitioner's family background, the expert
testimony about that background, and the expert opinion that
petitioner’s drug abuse and assaultive conduct while under the
influence of drugs, were a product of growing up in a
dysfunctional family in which he suffered continual
psychological abuse.
We conclude that this omission did not prejudice petitioner.
It is not probable that had this evidence been presented a more
opposite. He is, as the People said, the triggerman.”
This argument was made notwithstanding counsel’s
knowledge that the defense of diminished capacity had been
abolished, and there was substantial evidence, including
petitioner's confession, that the robbery had been preplanned
and that intent to rob existed, both of which would explain the
jury’s rejection of that defense at the guilty phase. Counsel
failed to recognize that the jury could, nonetheless, consider the
evidence of organic brain damage associated with lack of
impulse control as mitigating.
147
favorable result would have resulted at the penalty phase. The
aggravating factors were overwhelming. The circumstances of
the crime -
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