# Appendix — Calderon v. McLain

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 942

## Text

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Rosert Cruz McLain,
Petitioner-Appellee, No. 95-99020
Vv D.C. No.
we CV-89-03061-JGD
ARTHUR CALDERON, Warden,
Respondent-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
John G. Davies, District Judge, Presiding

Argued and Submitted
August 22, 1997——-Pasadena, California

Filed January 26, 1998

Before: Warren J. Ferguson, Cynthia Holcomb Hall* and
Alex Kozinski, Circuit Judges.

Opinion by Judge Kozinski; Concurrence by
Judge Ferguson

SUMMARY

Criminal Law and Procedure/Jury Instructions

The court of appeals affirmed a judgment of the district
court. The court held that a “Briggs” jury instruction that
omits a statutory limitation on a governor’s power to com-

*Judge Hall does not join in footnote 3 of the opinion.

669

670 McLain v. CALDERON

mute a sentence of life without parole (LWOP) supports
reversal of a death sentence.

The Supreme Court held in California v. Ramos, 463 U.S.
992 (1983), that in a capital case, a state trial court may use
a. “Briggs” instruction to inform a jury that the state’s gover-
nor can commute an LWOP sentence to a lesser sentence,
possibly including parole. In a California capital prosecution
of a defendant with two prior felony convictions, the Gover-
nor may grant such a commutation only if four justices of the
California Supreme Court so recommend.

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir. 1994), held
that a California trial court violated Ramos by incorrectly sug-
gesting to a jury that Hamilton could be paroled after serving
only 17 years of a life sentence. The court also criticized the
instruction because it diverted the jury’s attention from miti-
gation evidence to commutation procedures.

Appellee Robert McLain had two prior felony convictions
when he was charged in California state court with rape and
murder. The trial court gave a Briggs instruction, but did not
advise the jury that four justices had to recommend executive
commutation for the governor to grant it. After exhausting his
state-court remedies, McLain sought federal habeas corpus
relief.

The district court set aside McLain’s death sentence on the
ground that the trial court erroneously excluded expert testi-
mony regarding his future behavior. The State appealed.

[1] This case was materially indistinguishable from
Hamilton. McLain had two prior felonies and the jury was
given essentially the same Briggs instruction. The judge did
not advise the jury that the governor could exercise his clem-
ency powers only on the recommendation of four justices.
This made McLain’s ifistruction substantially more mislead-
ing than Hamilton’s because the jury would no doubt have

rt ies

McLain v. CALDERON 671

believed that the governor acting alone could commute
McLain’s sentence. Moreover, the instruction improperly
focused the jury’s attention on commutation procedures rather
than on the question of mitigation. Under Hamilton’s author-
ity, the district court’s judgment had to be affirmed.

Judge Ferguson concurred separately, noting that McLain
was also entitled to habeas corpus relief on two grounds not
addressed by the lead opinion.

COUNSEL

Keith H. Borjon, Deputy Attorney General, Los Angeles, Cal-
ifornia, for the respondent-appellant.

Robin M. Shapiro, Philadelphia, Pennsylvania, for the
petitioner-appellee.

OPINION
KOZINSKI, Circuit Judge.
I

Robert Cruz McLain has a history of raping and sometimes
killing young women. He was convicted and sentenced to
death for one of those killings; the California Supreme Court
affirmed. People v. McLain, 46 Cal. 3d 97 (1988), cert.
denied, 489 U.S. 1072 (1989). Having exhausted his state
court remedies, McLain filed a federal habeas petition raising
28 claims for relief.’ The district court rejected 27 of those

"McLain’s case is not covered by the Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub. L. No. 104-132, Title I, 110 Stat. 1214 (Apr.
24, 1996), amending 28 U.S.C. §§ 2244 and 2253-55 and further codified
at 2261-66. Robbins v. Smith, 125 F.3d 831, 833 (9th Cir. 1997); see
Lindh v. Murphy, 117 S. Ct. 2059, 2067-68 (1997).

672 McLaww v. CALDERON

claims, but set aside McLain’s death sentence after finding
that the exclusion of expert psychiatric testimony predicting
his future behavior violated Skipper v. South Carolina, 476
U.S. 1 (1986).

The state appeals. McLain counters by defending the dis-
trict court’s Skipper ruling, and also by arguing that the death
sentence was invalid on one of two other grounds: that his
trial counsel was ineffective in failing to present sufficient
mitigating evidence to the jury and that the jury instructions
violated Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir. 1994).
Because we find McLain’s Hamilton argument persuasive, we
need not consider the other issues presented.°

7In truth, McLain asks us to consider all of his 25 remaining claims of
error by purporting to incorporate his habeas petition and trial briefs into
his brief before us. Appellee Br. pp. 3-4. However, “[a]n issue not dis-
cussed in a brief, although mentioned in the Statement of Issues, is
deemed to be waived.” Resorts Int'l v. Lowenschuss (In re Lowenschuss),
67 F.3d 1394, 1402 (9th Cir. 1995), cert. denied 116 S. Ct. 2497 (1996).
Space was not the problem. McLain had 75 pages but used only 31.

*The state argues that we may not consider Hamilton because McLain
did not file a timely cross-appeal. The Deputy Attorney General who han-
dled this case is apparently unaware of the long-standing rule that we may
affirm the judgment below on any basis supported by the record. See, e.g.,
Helvering v. Gowran, 302 U.S. 238, 245 (1937) (“{I]f the decision below
is correct, it must be affirmed, although the lower court relied upon a
wrong ground or gave a wrong reason.”); United States v. Fonseca-
Martinez, 36 F.3d 62, 65 (9th Cir. 1994) (“The court of appeals may
affirm so long as there exists any ground, fairly supported in the record,
that supports the district court’s ruling.”).

We are troubled by the frequency with which the California Attorney
General’s office manifests unfamiliarity with such elementary principles
of federal procedure. A prime example of this can be found by listening
to the oral argument tape in this case, available from the clerk of our court.
Given the number of cases, including death cases, the Attorney General
of California litigates in the courts of our circuit, this is decidedly unhelp-
ful.

McLain v. CALDERON 673
; II
|
: In California v. Ramos, 463 U.S. 992 (1983), the Supreme
‘

| court approved the use of what’s known as a Briggs instruction.‘
: This instruction informs a jury charged with choosing
| between imposing a death sentence and life without parole
; (LWOP) of the governor’s power to commute LWOP to a
lesser sentence, possibly including parole. The Court found
that “(t]he Briggs Instruction thus corrects a misconception
and supplies the jury with accurate information for its deliber-
ation in selecting an appropriate sentence.” Jd. at 1009.

Ramos dealt with the Briggs instruction in a case where the
governor did, indeed, have the unilateral power to commute
the sentence. The governor of California, however, does not
have such power in all cases. Where the defendant has two
prior felonies, the governor may commute the sentence only
upon the written recommendation of four justices of the Cali-
fornia Supreme Court. See Cal. Penal Code §§ 4802, 4813,
4852. In Hamilton we considered a petitioner in that situation.
The jury there was given the standard Briggs instruction, fol-
lowed by a lengthy modification.* The modification (cor-

“The plain-vanilla Briggs Instruction reads:

You are instructed that under the State Constitution, a Gover-
nor is empowered to grant a reprieve, pardon, or commutation of
a sentence following conviction of a crime.

Sa i eNOS ie ail

Under this power a Governor may in the future commute or
modify a sentence of life imprisonment without possibility of
parole to a lesser sentence that would include the possibility of
parole.

Ramos, 463 U.S. at 995-96.

It was incorporated into the California Penal Code as a result of a 1978

voter initiative. See id. at 995 n.4. However, the California Supreme Court
. held that the instruction violated the California Constitution, People v.
: Ramos, 37 Cal. 3d 136, 159 (1984), and it is no longer given. Both Hamil-
ton and McLain were sentenced before the California decision.

*The instruction in Hamilton read as follows:

| |

674 McLain v. CALDERON

rectly) informed the jury about the limitation on the
Governor’s clemency authority, but then (incorrectly) went on
to suggest that the defendant might in fact be put on probation
after serving only about 17 years of a life sentence. According
to Hamilton, this violated Ramos’s holding that the jury must
be given accurate information as to the likelihood that the
defendant will be released from incarceration if he were sen-
tenced to LWOP. 17 F.3d at 1162. In Hamilton we also criti-

You are instructed that under the state constitution, a governor
is empowered to grant a reprieve, pardon or commutation after
sentence following conviction of a crime. Under this power a
governor may in the future commute or modify a sentence of life

imprisonment without possibility of parole to a lesser sentence
that would include the possibility of parole.

This is subject to the requirement that, in the case of any per-
son twice convicted of a felony, a commutation or modification
may not be granted absent the written recommendation of at least
four justices of the California Supreme Court. Further, a life sen-
tence requires a minimum incarceration of 25 years less one-third
off for good time credits before parole may be considered by the
proper authorities. You are now instructed, however, that the
matter of a possible commutation or modification of sentence is
not to be considered by you in determining the punishment for
Mr. Hamilton. You must not speculate as to whether such com-
mutation or modification would ever occur. It is not your func-
tion to decide now whether this man will be suitable for parole
at some future date. So far as you are concerned, you are to
decide only whether this man shall suffer the death penalty or
whether he shall be permitted to remain alive. If upon consider-
ation of the evidence you believe that life imprisonment without
possibility of parole is the proper sentence, you must assume that
the Governor, the Supreme Court, and those officials charged
with the operation of our parole system will perform their duty
in a correct and responsible manner, and that Mr. Hamilton will
not be paroled unless he can safely be released into society. It
would be a violation of your duty as jurors if you were to fix the
penalty at death because of a doubt that the Governor and other
officials will properly carry out their responsibilities.

17 F.3d at 1160, 1161-62.

McLaw v. CALDERON

cized the instruction on the ground that it “diverted [the jury]
from [its] task by having its attention focused on commutation
procedures rather than the significant mitigating evidence
defense counsel introduced at the penalty phase.” /d. at 1162-
63. We therefore vacated the death sentence.

[1] Our case is materially indistinguishable from Hamilton;
the state has elsewhere admitted as much.* McLain, like Ham-
ilton, had two prior felonies. And the jury in Mclain’s case
was given essentially the same modified Briggs instruction.’

“In its certiorari petition in Hamilton, the state, referring inter alia to
McLain’s case, stated as follows: “While California no longer requires
instruction of the jury with the penalty phase instruction . . . there remain
several capital cases, which are still pending federal habeas review,
wherein the instruction to the jury was identical to the instruction given
in this case.”

’The instruction reads as follows:

You are instructed that under the State Constitution a governor
is empowered to grant a reprieve, pardon, or commutation after
sentence following conviction of a crime. Under this power, a
governor may in the future commute or modify a sentence with-
out — of life without possibility of parole to a lesser sentence,
which would include the possibility of parole.

You are further instructed that such power by a governor to
commute or modify a sentence is not to be considered by you in
determining whether the defendant should be sentenced to death
or life imprisonment without the possibility of parole.

You may not speculate as to if or when a commutation or mod-
ification would or would not be granted to the defendant. It’s not
your function to decide now whether the defendant will receive
such a commutation or modification at some future date. So as far
as you are concerned, you are to decide only whether the defen-
dant should suffer the death penalty or should be permitted to
remain alive under the sentence of life imprisonment without the
possibility of parole.

If upon consideration of the evidence and instructions you con-
clude that life imprisonment without the possibility of parole is
the proper sentence, you must assume that the governor will per-
form his duty in a correct and responsible manner and will not

676 McLain v. CALDERON

There are only two difference between the instruction given
in our case and that in Hamilton: First, the judge here did not
advise the jury that the governor could exercise his clemency
powers only upon the recommendation of four justices. This
makes McLain’s instruction substantially more misleading
than Hamilton’s because the jury here would no doubt have
believed that the governor, acting alone, could commute
McLain’s sentence. Second, the instruction here did not refer
to the possibility that defendant would be released after serv-
ing only 17 or so years. This avoided one of the problems
with the instruction in Hamilton, but did nothing to negate the
impression that the governor, acting alone, could reduce any
LWOP sentence the jury might impose, and thus that McLain
might someday be released unless he were given the death
penalty. Moreover, the instruction here, like that in Hamilton,
improperly focused the jury’s attention on commutation pro-
cedures rather than on the question of mitigation. While we
might not decide this question the same way were we consid-
ering it in the first instance, Hamilton is binding on us as the
law of the circuit. Under its authority we must affirm the dis-
trict court’s judgment setting aside McLain’s death sentence.

AFFIRMED.

FERGUSON, Circuit Judge, concurring.

I concur in affirming the district court’s grant of habeas
corpus relief to Robert Cruz McLain on the basis of Hamilton

commute this defendant’s sentence unless convinced that he
should be eligible for parole and can be safely released into soci-
ety, in a correct and responsible manner.

It would be a violation of your duty as jurors if you were to fix
the penalty at death because of a doubt that the governor will
properly carry out his responsibilities.

RT Augmentation 120-21.

ee mn aN EN Nee MT Ey

McLain v. CALDERON 677

error. I write separately because two additional bases also
support the grant of habeas relief. The exclusion of testimony
regarding McLain’s ability to adapt to life in prison violates
Skipper v. South Carolina, 476 U.S. 1 (1986). The California
Supreme Court and the district court were correct in finding
Skipper error. People v. McLain, 757 P.2d 569, 575 (Cal.
1988); McLain v. Calderon, 1995 WL 769176, *71 (C.D. Cal.
19©5). In addition, McLain received ineffective assistance of
counsel, which forms a third basis for habeas relief.

I. Exclusion of Defense Testimony
A. Eighth Amendment Violation

McLain sought to introduce the expert testimony of Dr.
Dean Clair, a prison staff psychologist. Dr. Clair had treated
McLain, reviewed McLain’s prison records, and interviewed
McLain for litigation purposes. Dr. Clair was to testify that
given a life sentence instead of death, McLain would likely
adjust well to prison, and would not pose a threat to prison
staff or fellow inmates. McLain v. Calderon, 1995 WL
769176, *55. However, the trial court excluded Dr. Clair’s
testimony, thus violating the mandates of the Eighth and
Fourteenth Amendments as interpreted by the Supreme Court

in Skipper.

The Eighth Amendment requires that the sentencer in a
capital case must be allowed to consider “as a mitigating fac-
tor, “any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death.’ ” Skipper, 476 U.S.
at 4 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982);
Lockett v. Ohio, 438 U.S. 586, 604 (1978)(plurality)). In
Skipper, the Court applied this general rule to “a defendant’s
disposition to make a well-behaved and peaceful adjustment
to life in prison,” Skipper at 7. Stated differently, “evidence
that the defendant would not pose a danger if spared (but
incarcerated)” must be allowed. Jd. at 5. Here, McLain’s right

678 McLalIn v. CALDERON

to introduce Dr. Clair’s mitigating evidence was clearly vio-
lated.

B. Due Process Violation

In Gardner v. Florida, 430 U.S. 349, the Supreme Court
held that it was a violation of due process to apply a sentence
of death “on the basis of information which [the defendant]
had no opportunity to deny or explain.” Jd. at 362. In Skipper,
the Court unanimously stated: “Where the prosecution specif-
ically relies on a prediction of future dangerousness in asking
for the death penalty, it is not only the rule of Lockett and
Eddings that requires that the defendant be afforded an oppor-
tunity to introduce evidence on this point; it is an elemental
due process requirement . . .” Skipper, 476 U.S. at 5,n. 1. The
prosecution in this case relied, albeit impliedly, on the argu-
ment that McLain would pose a persistent threat to prison
safety if incarcerated for life. The prosecution submitted evi-
dence that McLain twice attempted to escape from prison,
once restrained a prison guard using a homemade knife, and
repeatedly threatened that given the opportunity, he would act
violently. In closing argument, the prosecutor underscored
this evidence, contending that it showed McLain to be “far
from a model prisoner.” The prosecution thus created the
inference that McLain would pose a danger if sentenced to
life imprisonment. The Due Process Clause, as interpreted in
Gardner and Skipper, entitles McLain to rebut this inference.

C. Prejudice

On collateral appeal, relief is granted for a constitutional
error where it “ ‘had [a] substantial and injurious effect or
influence in determining the jury’s verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)(quoting Kotteakos v.
United States, 328 U.S. 750, 76 (1946)). If the error does not
rise to that level, it is considered harmless. Bonin v. Calderon,
59 F.3d 815, 824 (9th Cir. 1995), cert. denied, __ U.S. __,
116 S.Ct. 718 (1996). “When a federal judge in a habeas pro-

Sila Cie To ecionneteis ria mebard Say

McLain v. CALDERON 679

ceeding is in grave doubt as to whether a trial error of federal
law had a ‘substantial and injurious effect or influence in
determining the jury’s verdict,’ that error is not harmless.
And, the petitioner must win.” O’Neal v. McAninch, 513 U.S.
432, 436 (1995).

Dr. Clair would have had considerable credibility with the
jury because he was employed by the state department of cor-
rections, and not in any way biased in favor of McLain. His
expertise in the assessment and treatment of prisoners further
augmented his credibility. According to expert testimony
presented to the district court, Dr. Clair’s testimony would
have been crucial to the jury, as future behavior in prison is
a major consideration in the penalty phase of capital cases.

Contrary to the state’s argument, other evidence and testi-
mony in this case do not duplicate Dr. Clair’s testimony. The
state contends that the submission of McLain’s prison records
supplanted the need for an expert opinion based in part on
those same records. Without expert interpretation, however,
these records are considerably less persuasive. Moreover, Dr.
Clair relied on his first hand knowledge of McLain, in addi-
tion to records, to prepare his testimony.

Similarly, the state argues that other witness testimony
effectively substituted for Dr. Clair’s opinion. Each of these
witnesses, however, lacked either Dr. Clair’s credibility,
expertise, or foundation of knowledge. Furthermore, only one
of these witnesses mentioned that McLain would adapt well
to life in prison, and this was not the thrust of his testimony,
but only a passing remark.

The trial court did instruct the jury to disregard character
evidence of future dangerousness in imposing the death pen-
alty. However, this instruction did not protect McLain’s right
to offer evidence of future adaptability to prison. Thus, the
prosecution’s evidence went unrebutted, preventing the jury

Ferma

—

680 McLain v. CALDERON

from considering McLain’s future behavior as a basis for
leniency.

While the facts of McLain’s brutal crimes are significant
aggravating factors, the district court found the mitigating evi-
dence to be significant. McLain v. Calderon, 1995 WL
769176, *67-68.' In this case, the aggravating evidence did
not so overwhelm the mitigating evidence to render harmless
the exclusion of Dr. Clair’s testimony.

In view of the credibility, persuasiveness, and distinct
nature of Dr. Clair’s testimony, as well of the significance of
the mitigating evidence, we should affirm the district court’s
conclusion that the exclusion of Dr. Clair’s testimony had a
substantial and injurious effect on the jury.

Il. Ineffective Assistance of Counsel
A. Failure to Investigate

McLain has shown that his attorney’s performance was
deficient and that it caused him prejudice. This constitutes
ineffective assistance of counsel under Strickland v. Washing-
ton, 466 U.S. 668, 687-90 (1984); Hendricks v. Vasquez, 974
F.2d 1099, 1109 (9th Cir. 1992). To establish prejudice, “(t]he
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 probabil-
ity is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.

Specifically, “a particular decision not to investigate must
be directly assessed for reasonableness in all the circum-
stances, applying a heavy measure of deference to counsel’s

‘Evidence of McLain’s deprived and violent childhood and his resulting
mental disorders was found to be mitigating and are discussed in Part II,
infra.

RS Leen ee ee ae

McLain v. CALDERON 681

judgments.” Strickland, 466 U.S. at 691. Here, McLain’s
attorney, Steve Pell, failed to: 1) discover all relevant mitigat-
ing evidence; 2) develop a social history based on all avail-
able records; or 3) provide McLain’s mental health expert
with all available social history records. Evidence of
McLain’s childhood sexual abuse, diagnosed brain damage,
multiple head injuries, physical abuse, abject poverty,
attempted suicides, and lack of treatment was all omitted. Pell
did call McLain and two other members of McLain’s family
to give testimony regarding McLain’s background. Dr.
Jerome Evans also testified, regarding McLain’s mental con-
dition. However, Pell never obtained releases to review
McLain’s confidential records. Therefore, Pell’s decision to
present this testimony was not based on adequate investiga-
tion. As the district court stated: “Pell’s failure to investigate
this mitigating evidence cannot be construed as reasonable
because he did not consciously explore the possibility of pre-
senting it.” McLain v. Calderon, 1995 WL 769176, *100
(C.D. Cal.). Pell’s failure to investigate and present important
mitigating evidence, taken alone, constitutes ineffective assis-
tance of counsel.

CONCLUSION

I agree with the majority that Hamilton error merits a grant
of habeas corpus relief in this case. McLain’s defense was
further harmed by the exclusion of persuasive expert testi-
mony and inadequate investigation by counsel. I write sepa-
rately to note that these errors provide additional bases upon
which to grant habeas corpus relief and CONCUR in the opin-
ion.

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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 1998 by Barclays Law Publishers.

a

Appendix B

ir nd he aL Rea eM ok Ree Big hss kD, OE Beets ol PEP ELIT DS AEE GRE, 2 PE IR OSes NN ae Rare Ie,

ROBERT CRUZ McLAIN,

ARTHUR CALDERON, et al.,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Petitioner, CASE NO. CV 89-3061 JGD
MEMORANDUM OPINION
GRANTING IN PART AND
DENYING IN PART
PETITION FOR WRIT OF
HABEAS CORPUS

Vv.

Respondents,

Petitioner Robert Cruz McLain is an inmate on death
He invoked the jurisdiction of this Court by v
requesting, pursuant to 21 U.S.C. s 848(q), appointment
of counsel to assist him in preparing and litigating a
petition for writ of habeas corpus. Currently before the
Court is his Third Amended Petition filed on December

The Court held an evidentiary hearing over the
course of five days in April and May 1993. At the
evidentiary hearing witnesses were called and exhibits
were received concerning the petitioner’s second, third,
fourth, fifth, eighth, and twenty-second claims for relief.
Over the course of three days in February 1994, the Court

1

held a second evidentiary hearing concerning the
petitioner’s twenty-eighth claim for relief. At the second
evidentiary hearing witnesses were called and exhibits
were received.

The Court has considered the testimony and exhibits
at the evidentiary hearings, relevant portions of the state
court record, the arguments of counsel, and the papers,
pleadings and records on file herein. Based thereon, the
Court makes the following findings of fact and conclusions
of law:

3 FACTS

In 1971, McLain was convicted of raping and
molesting Jodi Whitman and her friend and attempting to
rape and molest a third person, Sherrie Yunker in
Ventura, California. McLain was released from prison in
1978 and was living in Northern California. In November
1979, McLain returned to Ventura accompanied by his
16-year-old nephew Teddy Willis and Willis’ friend Lloyd
Ketcherside.

The threesome went to Whitman’s apartment and
attempted to break in but were scared away. They picked
up another woman, Joni Kelley; she was later raped and
murdered. On the way back to Northern California, their
car broke down. They stopped another person, Diana
Bazargani, murdered her and stole her car.

McLain was convicted of murdering Bazargani at a
trial in Solano County. After a jury trial on the
appropriate penalty, McLain was sentenced to life
imprisonment without the possibility of parole.

McLain was then tried for the Kelley murder in
Ventura. The jury convicted him of rape and murder and
sentenced him to death. The Ventura jury also convicted
McLain of several other attempted crimes and
conspiracies in connection with the events at Whitman’s
apartment.

For the crimes relating to the attempted break-in at
Whitman’s apartment, the Ventura trial court sentenced
McLain to slightly over 50 additional years to run
consecutively to each other, consecutive to the sentence
on the Kelley murder charge, and consecutive to the
unparolable life sentence in Solano County arising from
the Bazargani murder. Accepting the jury’s verdict, the
Ventura trial court sentenced McLain to death for the
murder of Joni Kelley.

The habeas petition currently before the Court
challenges the constitutionality of the Ventura conviction
and sentence of death.

The California Supreme Court affirmed the verdict
and sentence. People v. McLain, 46 Cal.3d 97, 249 Cal.
Rptr. 630, 757 P.2d 569 (1988). Thereafter, it denied
McLain’s petition for rehearing. After the United States
Supreme Court denied McLain’s petition for writ of
certiorari, McLain v. California, 109 S. Ct. 1356 (1989),
the California Supreme Court denied McLain’s petition
for writ of habeas corpus.

Federal proceedings were initiated in May 1989 and
new counsel were appointed three weeks later. After a
return to state court for exhaustion purposes, McLain filed
a First Amended Petition on August 28, 1991. The Court
allowed McLain to file a Second Amended Petition in
March 1993.

The Court held an evidentiary hearing on McLain’s
claims relating to the jailhouse informants who testified at
McLain’s trial, and the failure of McLain’s trial counsel,
Steve Pell, to develop evidence concerning McLain’s brain
damage and abuse as a child. The hearing was Held April
13 through 16, April 29, and May 4, 1993.

Shortly after post-hearing briefing was completed, but
while the case was still under submission, McLain sought
permission to file a Third Amended Petition to include a
claim of jury misconduct that he had only recently
discovered. Finding the claim exhausted and not
procedurally barred -- due to the State’s practice of

inconsistently invoking timeliness as a procedural default
in habeas -- the Court allowed McLain to file his Third
Amended Petition on December 6, 1993. The Court
scheduled a hearing on the newly-added jury misconduct
claim. The second hearing was held on February 3, 11,
and 25, 1994.

This Memorandum Opinion contains the Court’s
findings of fact and conclusions of law regarding all claims
raised in the pleadings before this Court.

PART I -- PRELIMINARY PROCEDURAL MATTERS
I. EXHAUSTION

The Attorney General contends that several of
McLain’s claims are unexhausted. Because exhaustion is
a procedural defect that could prevent the Court from
considering any of the claims in the current petition, Rose
v. Lundy, 455 U.S. 509, 514 (1982), the Court addresses
the exhaustion disputes prior to addressing the merits of
any of the claims.

A. Respondent Has Waived _Any __ Purported
Exhaustion Defects

The Court finds Respondent’s exhaustion arguments
to be without merit for two separate and independent
reasons. First, the Court finds that Respondent has waived
the defense of exhaustion by failing to raise it at an earlier
stage of the proceedings. Not only was this case held in
abeyance for 18 months during 1990 and 1991, but
McLain also filed a supplemental state habeas petition
contemporaneous with ongoing federal proceedings in late
1993. The Attorney General purports to have reserved his
right to assert an exhaustion defense at a later time. He
purportedly did so, however, by burying this contention in
a legal memorandum appended to his Answer. The
Attorney General did not move to dismiss the petition or

any of the claims or to have federal proceedings held in
abeyance pending further exhaustion. Nor did he
otherwise bring the alleged exhaustion defects to the
Court’s attention during any of the numerous status
conferences or motion hearings. The Attorney General
never suggested that either of the evidentiary hearings
would be inappropriate on the ground that the petition
contained unexhausted claims. Not until the Attorney
General filed his comprehensive briefing on the claims
that were not the subject of the first evidentiary hearing
-- in October 1993 -- did the Attorney General formally
seek any relief based on the alleged exhaustion defect.

The issue of exhaustion should have been raised and
insisted upon long ago. "The appropriate time to assess
whether a prisoner has exhausted his state remedies is
when the federal habeas petition is filed, not when it
comes on for hearing in the district court." Brown v.
Wells, 11 F.3d 914, 915 (9th Cir. 1993). There is a
compelling reason for this. Exhaustion defects could
render all proceedings in the case a nullity. Lundy, 455
US. at 520-21. The Attorney General cannot wait until
the end of the case, opting to insist upon exhaustion only
after it appears that the federal court may reach a
decision on the merits adverse to the State. Granberry v.
Greer, 481 U.S. 129, 134 (1987). Allowing delayed
invocation of the exhaustion defense would invite abuse by
the parties.

After the case has been in federal court for so many
years and two evidentiary hearings have been held, it is
too late to complain of timing defects. Any exhaustion
problems could have been cured long ago. The Court
finds that Respondent has waived any defense based on
exhaustion defects.

///

B. Respondent Has Waived the Defense of
Procedural Bar

The Attorney General attempts to capitalize on the
delay that it has in part created by failing to assert its
exhaustion defense earlier. The Attorney General
contends that, due to the late date by which any
supplemental exhaustion petition would be presented, the
state supreme court would now likely hold any previously
unpresented claims as procedurally defaulted under the
state’s timeliness rules.

Whether a claim is in procedural default, however, is
determined as of the date the federal petition was filed.
Brown, 11 F.3d at 914. This case has twice returned to the
state court for exhaustion purposes. There is no clear
indication that the state courts would have unquestionably
rejected the allegedly "new" aspects of the challenged
claims on the basis of timeliness had those "modifications"
been included in one of the earlier state habeas pet.tions.

The Court finds that Respondent has waived the
defense of procedural default and bar.

C. Respondent’s Substantive Exhaustion Arguments
Lack Merit

1. Eighth Claim

The Attorney General argues that, to the extent
Claim 8 is founded upon the Fifth and Sixth Amendments,
the claim was never exhausted and is now procedurally
barred. A claim cannot be procedurally barred if it has
been properly exhausted -- ie., if it has been fairly
presented to the state’s highest court. A federal claim "is
fairly presented if the petitioner has described the
operative facts and legal theory upon which his claim is
based." Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.
1986).

ee er Tt ee

McLain fairly presented, on direct appeal, his claim
that the trial court violated his Fifth and Sixth
Amendment rights by failing to instruct the jury on the
unreliability of informant testimony. The state court
denied this claim on the merits. McLain, 46 Cal.3d at 107.
The claims were properly exhausted and McLain is not
barred from pursuing these claims in this federal habeas

proceeding.
2. Twelfth Claim

McLain fairly presented his claim that the retroactive
application of People v. Anderson, 43 Cal.3d 1104, 240
Cal. Rptr. 585 (1987) would violate his rights to due
process and equal protection, the Ex Post Facto Clause,
and the Eighth Amendment. The Attorney General's
contention that McLain should have presented these
arguments in his briefs on direct appeal is frivolous.
Anderson was not even decided until after McLain’s direct
appeal was fully briefed and argued. While a petition for
rehearing might not ordinarily be the appropriate method
for presenting a new claim of error, McLain cannot be
faulted for failing the contest the retroactivity of a law that
did not yet even exist. McLain challenged the retroactive
application of Anderson at his first opportunity to do so.
The claim was properly presented by way of petition for
rehearing. Cf. Castille v. Peoples, 489 U.S. 346, 351
(1989).

In his petition for rehearing, McLain argued that
retroactive application of Anderson would be unfair and
a violation of the Ex Post Facto Clause. "Unfairness" is
the touchstone of due process which, in turn, is the focus
of the Fifth and Sixth Amendment claims presented here.
A petitioner need not cite "book and verse on the federal
constitution” in order to satisfy exhaustion. Picard v.
Connor, 404 U.S. 270, 277 (1971), cited in Duncan v.
Henry, 115 S. Ct. 887 (1995). Accord Tamapua, 796 F.2d

at 262. A federal claim will be found exhausted so long as

"the “ultimate question for disposition’ will be the same
despite variations in the legal theory or factual allegations
urged in its support." Miller v. Rowland, 999 F.2d 389,
391 (9th Cir. 1993), cert. denied, 114 S. Ct. 1378 (1994),
quoting Picard, 404 U.S. at 277. The mere addition of a
citation to the Eighth Amendment does not render a
claim unexhausted. McQueary v. Blodgett, 924 F.2d 829,
833 (9th Cir. 1991) (due process and equal protection
sufficiently presented Eighth Amendment claim premised
on same arguments). The Attorney General fails to
explain how the current federal claims are in any way
distinct from those presented to the state court. The
twelfth claim for relief is exhausted.

3. Fifteenth Claim

As the Attorney General concedes, McLain
specifically cited Skipper v. South Carolina, 476 U.S. 1
(1986), in his appellate briefs. Skipper plainly invoked
both the Eighth Amendment and Fifth Amendment due
process clause” as dual bases for its judgment. Skipper,
476 U.S. at 4-5, 5 n.1. Furthermore, Skipper’s Eighth
Amendment analysis specifically looked to the prosecutor’s
closing argument regarding potential future harm as a
basis for concluding that the error was not harmless. Id.,
476 US. at 8. Although the constitutional foundations for
the Eighth Amendment error may be conceptually distinct
from the Fifth Amendment’s, Skipper’s analysis of the
harm caused by the Eighth Amendment violation was
closely connected to concerns of procedural due process.
The raising of one ground brings the other to the
forefront almost automatically.

If this were not enough, McLain’s supplemental brief
explicitly referred to "due process" in arguing his Skipper

1. McLain fails to explain how the Sixth Amendment dimension of this

claim differs from the Fifth Amendment aspect. Thus, they are treated together

as the "due process" component discussed in Skipper and Gardner.

8

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claim. He specifically argued that the exclusion of Dr.
Clair’s testimony not only violated the Eighth Amendment,
but also "the principles of due process." (Appint’s Suppl.
Brf., Doc. B-13, at 3.) He further complained that the
exclusion "unfairly" curtailed the defense’s ability to rebut
the prosecutor’s evidence and argument "suggest[ing] that
appellant would be a negative influence in prison."
(Appint’s Suppl. Brf., Doc. B-13, at 4.) Indeed, as support
for the last quoted phrase, McLain cited Justice Powell’s
concurring opinion in Skipper, whose legal foundation
rested exclusively on due process grounds.

Thus, all aspects of the fifteenth claim for relief were
exhausted.

4. Seventeenth Claim

On direct appeal, McLain initially raised only one
argument pertaining to the penalty phase -- that the trial
court committed prejudicial error in instructing the jury
that a non-parolable life sentence might some day be
commuted to a life sentence that included the possibility
of parole. (AOB, Doc. B-1, pp. 98-103.) He argued that
the instruction was unfairly prejudicial because it
emphasized the possibility of release and tended to unduly
Suggest that commutation and parole were not simply
possible, but probable. He also argued that the modified
instruction was misleading in that it implied that a death
sentence might not be commutable to a parolable life
sentence and, therefore, the only way to assure McLain’s
permanent removal from society was to reach a death
verdict. (AOB, Doc. B-1, pp. 98-103; Reply Brf, Doc. B-3,
pp.26-27.)

McLain argued this claim again in his reply brief, in
supplemental briefs, and on rehearing. (Docs. B-3, B-12,
B-17.) The consistent thrust of these arguments was that
the instruction unfairly suggested that a non-parolable life
sentence would be commuted and that McLain would be
eligible for parole and eventually released unless

sentenced to death. These are the same arguments raised
in McLain’s Seventeenth Claim.

McLain’s arguments in state court fairly presented the
claim raised in his Third Amended Petition. The claim is
exhausted. See Miller, 999 F.2d at 391, Tamapua, 796
F.2d at 262, McQueary, 924 F.2d at 833.

Il. TEAGUE RETROACTIVITY

Respondent contends that several of McLain’s claims
are barred by the Supreme Court’s habeas retroactivity
doctrine announced in Teague v. Lane, 489 U.S. 288
(1989) (plurality). Since the State argues that McLain
"seeks the benefit of a new rule of constitutional law, the
court must apply Teague before considering the merits of

the claim." Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994)

(emphasis criginal).
In Teague, a four-justice plurality of the Supreme

Court proclaimed that they would no longer announce or
enforce "new rules of constitutional criminal procedure"
during habeas corpus review. Teague, 489 U.S. at 310. In
Penry v. Lynaugh, 492 U.S. 302 (1989), a fifth member
joined their ranks and established Teague’s retroactivity
doctrine as a rule of law.

A. Respondent Has Failed to Discharge its Burden
under Teague

In tracing the contours of the new habeas retroactivity
doctrine, the Supreme Court has identified several clear
points in the analytical framework. Caspari, 114 S. Ct. at
953. First, the court must determine the date on which
petitioner’s conviction and sentence became final. Second,
the court must ascertain the state of the law on that date
in order to determine whether the rule sought to be
applied “breaks new ground or imposes a new obligation
on the States." Teague, 489 U.S. at 301. Third, if the
petitioner is attempting to invoke a "new rule," the court

10

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must then determine whether the rule comes within either
of the two exceptions to Teague. It was no hyperbole for
Judge Legge to conclude: "It is clear from a review of the
cases that have addressed retroactivity that the Teague
analysis is ge ae Odle v. Calderon, 884 F. Supp. 1404,
1411 (N.D. Cal. 1995) (Legge, J.), citing Graham _v
Collins, 113 S. Ct. 882 (1993), Stringer v. Black, 503 U. S.
222 (1992), Penry, 492 U.S. 302.

"The Teague bar to the retroactive application of new
rules is not, however, jurisdictional." Schiro v. Farley, 114
S. Ct. 783, 788 (1994). It is an affirmative defense. Id. Like
any other affirmative defense, Respondent has the burden
to demonstrate that the defense applies. Id.

Respondent has determined when McLain’s
conviction and sentence became final. Beyond that,
however, his invocation of the Teague bar is nothing short
of perfunctory. The Attorney General has not outlined the
state of the law relevant to any of the claims as the law
existed at the relevant time. Nor has Respondent analyzed
the claims he seeks to bar in light of the applicable law at
that time. Nor has Respondent discussed whether
McLain’s claims fall within either of Teague’s exceptions.
Because the Attorney General has not satisfied the burden
imposed on him by Caspari, the State has not met its
burden of demonstrating that Teague bars any of
McLain’s claims. The Court rejects Respondent’s
retroactivity arguments on this separate and independent
basis.

B. The Non-Retroactivity Arguments Lack Merit

As noted by Justice O’Connor, "'[S]tate courts are
understandably frustrated when they faithfully apply
existing constitutional law only to have a federal court
discover, during a [habeas] proceeding, new constitutional
commands.” Teague, 489 U.S. at 310 (plurality) (brackets
in original), quoting Engle v. Isaac, 456 U.S. 107, 128 n.33
(1982). Thus, the Teague retroactivity analysis is intended

11

to "validate[] reasonable, good-faith interpretations of
existing precedents made by state courts," and thus [to]
effectuate[] the States’ interest in the finality of criminal
convictions and [to] foster [] comity between federal and
state courts." Gilmore v. Taylor, 113 S. Ct. 2112, 2116
(1993), quoting Butler v. McKellar, 494 U.S. 407, 414
(1990).

1. Third and Fourth Claims

Claims 3 and 4 arise out of the State’s use of
jailhouse informants as witnesses at McLain’s trial.
McLain contends that the informants fabricated testimony
and that the State knowingly or recklessly used this
perjured testimony in violation of his right to due process.
He also complains that the prosecutor violated his due
process rights by failing to inform the defense both that
the informants had been acting as de facto law
enforcement agents and that they fabricated testimony.

The State fallaciously argues that it cannot be
criticized for using perjured testimony by jailhouse
informants because this would amount to a "new rule"
under Teague. It has long been the law that the
"deliberate deception of court and jury by the presentation
of testimony known to be perjured” is “inconsistent with
the rudimentary demands of justice." Mooney v. Holohan,
294 U.S. 103, 112 (1935). Accord, Napue v. Illinois, 360
U.S. 264 (1959), Giglio v. United States, 405 U.S. 150
(1972). More recently, the Supreme Court explained that
a "conviction obtained by the knowing use of perjured
testimony is fundamentally unfair." United States v.
Bagley, 473 U.S. 667, 678 (1985). Setting the standard of
proof, the Supreme Court held that such a conviction
"must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judgment
of the jury." Bagley, 473 U.S. at 678. Accord United
States v. Agurs, 427 U.S. 97, 103, 110 (1976), Brown v.
Borg, 951 F.2d 1011, 1015 (9th Cir. 1991).

12

The State’s Teague objection to McLain’s challenges
to the allegedly perjurious nature of the informants’
testimony is patently without merit. McLain seeks to apply
old rules of constitutional law to these new facts. Nothing
in Teague or its progeny suggests that this is
inappropriate. Teague only prohibits the invocation of new
rules; it has no application where, as here, the petitioner
seeks to apply “a rule of ... general application" to a new
set of facts. Wright v. West, 112 S. Ct. 2482, 2499 (1992)
(Kennedy, J., concurring). Accord Stringer, 503 U.S. at
227-32. Teague poses no bar to these claims.

McLain’s fifth claim for relief is also related to the

jailhouse informant testimony. In this claim, however,

t McLain asserts that his conviction is invalid because it is

: founded upon materially unreliable testimony. Once again,
the Attorney General misconstrues Teague.

McLain does not broadly assert that, as a matter of
constitutional law, prosecutors should be universally
precluded from relying on jailhouse informant testimony
in securing convictions or death verdicts. Rather, McLain’s
fifth claim is premised upon the longstanding principle of
due process that convictions must be based on reliable
and credible evidence, e.g., Johnson v. Mississippi, 486
U.S. 578, 590 (1988), and that -- irrespective of what facts
McLain was able to establish by a preponderance of the
evidence at the federal evidentiary hearing -- these
informants were important witnesses and the reliability of
their tria] testimony is inherently suspect. It has long been
recognized that the testimony of informants, especially
jailhouse informants, should be treated with suspicion.
United States v. Bernal-Obeso, 989 F.2d 331, 333-35 (9th
Cir. 1993). The claim that these informants provided
testimony that is not sufficiently reliable for a death
verdict would not amount to a "new constitutional rule of

4
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criminal procedure," but simply, at most, a new factual
setting for an old rule.

Moreover, given its intensive focus on the
trustworthiness of the outcome, there is every reason to
believe that the rule invoked in this claim falls within
Teague’s exception for "new procedures without which
the likelihood of an accurate conviction is seriously
diminished’ or which implicate ’the fundamental fairness
of the criminal proceeding."” Harmon v. Marshall, 57 F.3d
763, 765 (9th Cir. 1995), quoting Teague, 489 USS. at 311,
313.

3. Sixteenth Claim

Similarly Teague does not bar claims that the trial
court erroneously excluded evidence. True, the Supreme
Court has not firmly stated that a capital defendant must
be allowed to establish that more culpable accomplices
will be granted sentences more lenient than death. This
does not, however, ineluctably invoke the prohibition
against announcing "new rules of constitutional criminal
procedure" on habeas. Teague v. Lane, 489 U.S. 208
(1989). The "rule" invoked is clear and well-established --
a capital defendant must be allowed to present any
relevant evidence that is "mitigating in the sense that [it]
might serve as a basis for a sentence less than death."”
Mak v. Blodgett, 970 F.2d 614, 623 (9th Cir. 1992)
(quoting Skipper, 476 U.S. at 4-5), cert. denied, 113 S. Ct.
1363 (1993). The rule is not new -- it derives from Lockett
v. Ohio, 438 U.S. 586 (1978) (plurality), which was decided
not only before the end of McLain’s direct appeal, but
before his trial as well.

The Supreme Court has limited the reflexive
invocation of Teague when the only argument against
retroactivity is the claimed "new application" of an "old"
rule. The "inquiry is to determine whether a particular
decision has really announced a ’new’ rule at all or
whether it has simply applied a well- established

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constitutional principle to govern a case which is closely
analogous to those which have been previously considered
in the prior case law." Wright v. West, 112 S. Ct. at 2497
(O’Connor, J., concurring) (emphasis in original).

[T]he standard for determining when a case
establishes a new rule is "objective," and the mere
existence of conflicting precedents does not
necessarily mean a rule is new. If the proffered
factual distinction between the case under
consideration and pre-existing precedent does not
change the force with which the precedent’s
underlying principle applies, the distinction is not
meaningful, and any deviation from precedent is not
reasonable.

Wright, 112 S. Ct. at 2497 (O’Connor, J., concurring,

joined by Blackmun and Stevens, JJ.). Accord Stringer,

503 U.S. at 236-37.

Justice Kennedy provided a similar explanation:
Whether the prisoner seeks the application of an old
rule in a novel setting depends in large part on the
nature of the rule. If the rule in question is one which
of necessity requires a case-by-case examination of
the evidence, then we can tolerate a number of
specific applications without saying that those
applications themselves create a new rule. The rule
of Jackson v. Virginia, 443 U.S. 307 (1979), is an
example. By its very terms it provides a general
standard which calls for some examination of the
facts. The standard is whether any rational trier of
fact could have found guilt beyond a reasonable
doubt after a review of all the evidence, so of course
there will be variations from case to case. Where the
beginning point is a rule of this general application,
a rule designed for a specific purpose of evaluating a
myriad of factual contexts, it will be the infrequent
case that yields a result so novel that it forges a new
rule, one not dictated by precedent.

15

Id., 112 S. Ct. at 2499 (Kennedy, J., concurring).

The rule of Lockett can _hardly be called
"fact-specific." It is a rule of general application requiring
States to «'low sentencers to consider all relevant
mitigating evidence that would provide a basis for a
verdict less than death. (Lockett does not, on the other
hand, entitle capital defendants to perform an abolitionist
crusade -- i.e., to argue about the general propriety of
capital punishment in a manner that is not directly tied to
the facts of the case before the jury. See Harris v. Pulley,
692 F.2d 1189, 1203-04 (9th Cir. 1982) (Harris 1), rev’d on
other grounds, 456 U.S. 37 (1984).) Its application "of
necessity requires a case-by-case examination of the
evidence" and is "designed for the specific purpose of
evaluating a myriad of factual contexts." Wright, 112 S. Ct.
at 2499 (Kennedy, J., concurring). Indeed, it is
noteworthy that the Supreme Court found its Skipper
decision -- one of Lockett’s progeny -- to be fully
retroactive, citing a case indicating that it had "merely ...
applied settled precedents to [a] new and different factual
situation{].". Truesdale v. Aiken, 480 U.S. 527 (1987),
citing United States v. Johnson, 457 U.S. 537, 549 (1982).

4. Seventeenth Claim

In a brief filed eight months after the Ninth Circuit
decision was rendered -- and seven months after McLain
filed his first brief calling the case to the Court’s attention
-- the Attorney General asserted that the Ninth Circuit’s
decision in Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.),
cert. denied, 114 S. Ct. 2706 (1994), created a new rule of
law that is barred by Teague.

McLain’s seventeenth claim asserts that the modified
Briggs Instruction both unduly emphasized the possibility
of commutation and release while simultaneously
providing the jury with materially inaccurate information
suggesting that commutation and release were in fact

16

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likely. McLain argues that the instruction violated his due
process rights to a fair and reliable penalty verdict.

The Attorney General is correct that, prior to
Hamilton, no court had expressly condemned the precise
misinformation that was contained in the instruction given
during McLain’s trial. Yet, well before McLain’s appeal
was final, the Supreme Court had confirmed that jurors
cannot be misled as to the significance of their verdict.

Caldwell v. Mississippi, 472 U.S. 320 (1985) (plurality). Cf.

California v. Ramos, 463 U.S. 992, 1009 (1983). Indeed,
throughout Ramos, the Supreme Court repeatedly

emphasized that the unmodified Briggs Instruction
“corrects a misimpression" that a non-parolable life
sentence could not be commuted "and supplies the jury
with accurate information." Id., 463 U.S. at 1009. See also
id. at 1004, 1012. The accuracy of the information
provided to the jury was again considered the crucial
question when the Supreme Court reversed another death
sentence based on a misdescription of the jury’s
sentencing role. Caldwell, 472 U.S. at 336 (plurality), id.,
at 341-42 (O’Connor, J., concurring). Most recently, the
Supreme Court again reinforced that simply biasing the
jury in favor of death is not the crucial question -- after
all, that is the function of all aggravating evidence and
argument -- the concern is over the information’s
accuracy. Romano v. Oklahoma, 114 S. Ct. 2004 (1994).

The Ninth Circuit’s decision in Hamilton relies
squarely on the guidelines established in Ramos. Ramos
was decided well before McLain’s appeal became final.
Thus, the "rule" of Hamilton is nothing more than the
"rule" of Ramos -- that the jury may be provided with
information regarding commutation so long as the
information is not false or misleading -- applied to a
modified version of the Briggs Instruction. The arguments
are nothing more than attempts to apply "a rule of ...
general application” to a new set of facts. See Wright, 112
S. Ct. at 2499 (Kennedy, J., concurring), Stringer, 503 U.S.

17

a

at 227-32. The arguments premised on Hamilton are not
barred by Teague.

PART II -- DISCUSSION
. First Claim: I loind

McLain’s first claim for relief asserts that the trial
court improperly permitted the State to join the charges
relating to Jodi Whitman with the charges for which the
State sought the death penalty, those relating to the
murder of Joni Kelley. McLain asserts that, as a result, his
conviction and death sentence were unlawfully imposed in
violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

A. Prejudi Kelley C

McLain asserts that the joinder of the Whitman and
Kelley charges allowed the introduction of inflammatory
evidence related to the Whitman charges that unfairly
prejudiced his trial on the Kelley charges.

Petitioner argues that joinder led the jury to find that
McLain was predisposed to commit the Kelley offense,
permitted the jury to improperly cumulate evidence in
deliberating on the Kelley charges, and allowed the State
to urge the jury to first make findings on the Whitman
charges and then to apply those findings as evidence of
guilt on the Kelley charges.

McLain specifically attacks two categories of evidence
that were admitted because of the joinder that he asserts
would have been inadmissible during the guilt phase if the
charges had been severed. The first category is the
evidence of McLain’s 1971 rape convictions. The second
category is the evidence of his involvement in the
then-pending Whitman charges: the attempted burglary of
the Whitman residence and the attempted rape and
murder of Jodi Whitman.

— .

The first category of evidence included:

(1) McLain’s 1971 conviction for the rape of Jodi

Whitman;

(2) information revealing that Whitman was eleven

years old at the time of the 1971 offense; and

(3) a stipulation that McLain had also been convicted

in 1971 for the rape of Lisa Donaldson and that

Donaldson was a minor at the time.

McLain asserts that this evidence was irrelevant to
the determination of guilt for the Kelley charges and that
the trial court’s limiting instruction was ineffective and
insufficient.

The second category of evidence is the evidence
relating to the Whitman charges. McLain alleges that the
prosecutor improperly encouraged the jury to use
evidence relating to the Whitman charges in deciding the
Kelley charges. McLain asserts that there was no factual
relationship between the Whitman crimes and the Kelley
crimes that would justify using the evidence of one in
support of the other. He argues that the temporal or
geographical similarities do not give rise to inferences of
motive, plan, intent, or other common element.

In assessing whether the joinder of offenses is
constitutionally impermissible, the Ninth Circuit has
explained:

[t]he propriety of a consolidation rests within the

sound discretion of the state trial judge. The

simultaneous trial of more than one offense must
actually render petitioner’s state trial fundamentally
unfair and hence, violative of due process before
relief pursuant to 28 U.S.C. § 2254 would be
appropriate.
Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.
1991) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841
(Sth Cir. 1976), cert. denied, 97 S. Ct. 1184 (1977)).

The Supreme Court has “defined the category of
infractions that violate “fundamental fairness” very
narrowly.” Estelle v. McGuire, 502 U.S. 62, 73 (1991)

19

(quoting Dowling v. United States, 493 U.S. 342, 352
(1990)). The State correctly observes that, in the context

of consolidated charges, the Supreme Court has
recognized that (1) the jury is expected to follow
instructions in limiting evidence to its proper function, and
(2) the convenience of trying different crimes against the
same person in one trial is a valid governmental interest.
Spencer v. Texas, 87 S. Ct. 648, 653 (1966).

In the present case, McLain was not prejudiced by
the admission of the evidence of the 1971 convictions. It
did not render his trial fundamentally unfair. The trial
court adequately instructed that the jury on the limitations
on the use of this evidence and this Court must assume
the jury followed the instructions as given.

The trial court expressly instructed the jury that the
evidence of McLain’s 1971 conviction for the rape of
Whitman could be used only for the then-pending
Whitman charges but not for the Kelley charges. The trial
court also instructed the jury not to consider the prior
rape convictions in evaluating McLain’s credibility. The
trial court further instructed the jury that it could not
consider evidence of McLain’s other crimes to prove that
he was a person of bad character or had a disposition to
commit crimes.

The trial court informed the jury that the evidence of
other crimes “was received only as to the offenses
pertaining to Jodi Whitman and may be considered by you
only as to those offenses." (C.T. 1861.) The court also
informed the jury that it could use the other crimes
evidence only to determine (1) whether there was a logical
connection between the 1971 offense and the Whitman
offense, (2) whether there was corroboration of the
prosecuting witness, (3) whether the requisite intent
existed, (4) the identity of the person who committed the
crimes, (5) the motive for the commission of the crime
charged, (6) whether McLain had the knowledge and
means that might have been useful in committing the
crime charged, and (7) the existence of a conspiracy. The

trial court then reiterated that the evidence relating to the
1971 offense was admitted for those limited purposes and
only as to the offenses relating to Jodi Whitman. The
court directed the jury not to use the conviction for any
other purpose.

These instructions were reinforced by the prosecutor’s
closing argument. He expressly told the jury not to
consider the evidence of the 1971 convictions as evidence
of McLain’s propensity to engage in criminal behavior

or to commit sexual crimes specifically. (R.T.
3838.) He also told the jury not to consider it as evidence
that McLain was a “lousy” person.

Thus, McLain was sufficiently protected from an
improper use of the evidence of the 1971 convictions.

Likewise, the evidence relating to the Whitman
charges did not render McLain’s trial on the Kelley
charges fundamentally unfair.

The prosecutor connected the Whitman and Kelley
charges by arguing that if the jury found that McLain had
attempted to rape or murder Whitman then it should
consider what relationship McLain’s commission of the
Whitman offenses might have to the Kelley charges. He
specifically argued that it might be logical to conclude that
if McLain had been frustrated in his attempts to get
revenge on Whitman, he may have taken out that
frustration on Kelley. (R.T. 7840.)

Arguably, joinder of the claims should not have been
allowed because the Whitman charges were not
sufficiently related to the Kelley charges. But the question
is not whether the joinder was generally proper, but
whether it rendered petitioner’s trial fundamentally unfair.

Evidence of prior bad acts is relevant to show a
motive. Although the argument that the events at
Whitman’s apartment provided the motive for the murder
of Kelley may be logically weak, the jury was capable of
determining whether to accept it. The prosecutor himself
backed away from the argument that the Kelley offense
followed from frustration over the failure to find Joni

21

Whitman. The prosecutor admitted in his closing
argument that it was not clear exactly when the Kelley
offenses took place and that it was possible that they
occurred prior to going to Joni Whitman’s apartment.
(R.T. 7848.)

After a review of the record, the Court concludes that
the joinder of the Whitman charges with the Kelley
charges, while potentially inflammatory, did not render the
trial on the Kelley charges fundamentally unfair.

B. Prejudi Whi Cl

Petitioner further argues that joinder tainted the
penalty phase. He asserts that without joinder it is unlikely
he would have been found guilty of the attempted
break-in at Whitman’s apartment. He argues that the
prosecutor therefore would not have been able to argue
in the penalty phase, as an aggravating circumstance, that
he returned to Ventura to seek revenge against Whitman,
a former victim.

McLain has presented no cogent theory as to how the
joinder of the Kelley charges with the Whitman charges
could have led the jury improperly to convict him on the
Whitman charges. There was no evidence during the guilt
phase that was relevant only to Kelley charges and which
the jury could not have permissibly used for the Whitman
charges. Therefore, this argument does not support a
finding of fundamental unfairness.

The Court therefore denies Petitioner’s first claim for
relief.

Il. Second Claim: Jailhouse Informants -- Knowing Use
f Perjured Testi

After his arrest, McLain was incarcerated in the
Vallejo branch of the Solano County Jail. McLain was
placed in a long-term holding cell along with many other

lt i

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inmates, including Edward DeFilipis, Zolando Hockett,
and Doyle Smith.

Testifying at McLain’s trial under a grant of immunity
from both Ventura and Solano counties, Ketcherside
attempted to emphasize McLain’s involvement in the
crimes while minimizing his own role. Circumstantial
evidence strongly, although not incontrovertibly, suggested
McLain’s participation. The prosecution sealed its case
through three jailhouse informants who testified that
McLain admitted to them that he had committed the
charged crimes and told them details of how the crimes
were committed.

DeFilipis and Hockett testified at the Ventura trial
that McLain made several incriminating statements to
them while they were housed together. DeFilipis and
Hockett had previously given similar testimony at
McLain’s Solano County trial. The prosecution read into
the record similar testimony that Doyle Smith gave at
McLain’s preliminary hearing.

The Court finds that McLain has failed to prove by
a preponderance of the evidence that any of the testimony
by the jailhouse informants was perjurious. The Court also
finds that there was no deliberate wrongdoing by any
member of the prosecution team. The Court further finds
that, while not exhaustive, the prosecutor’s investigation
was sufficient under the standards prevailing in the early
1980's.

Ill. There is Insufficient Proo erjurious Testimony by

the Jailhouse Informants
1. DeFilipis

As demonstrated both by his history of varied stories
as well as the Court’s observation of DeFilipis on the
witness stand at the evidentiary hearing, DeFilipis has an
obvious ability -- and willingness -- to mold his story to suit
his audience. Although DeFilipis’ willingness to defile the

23

oath when it pleases him is disturbing, McLain still bears
the ultimate burden to prove, by a preponderance of the
evidence, that DeFilipis’ testimony at the Ventura trial
was in fact false. There is nothing to corroborate
DeFilipis’ transitory version that McLain never varied
from denying guilt. On the other hand, Respondent has
submitted credible evidence suggesting that, if McLain did
speak with DeFilipis (which is not contested), he likely
per his personal involvement in the Ventura

ihe Court does not credit DeFilipis’ allegation that
Solano County Detective Hind provided him with a
document that purported to be McLain’s handyritten,
unsigned confession. While Detective Hind did provide
DeFilipis with a document during the initial interview, the
Court finds that the document provided was DeFilipis’
own handwritten notes. The Court finds this version of
events all the more plausible in light of the fact that
DeFilipis admits that he took peisunal notes, admits that
he gave them to Hind, and that DeFilipis reviewed those
notes before giving the tape-recorded statement to Hind.
Also significant is the fact that -- other than the impostor
Antonio Cortez Buckley -- DeFilipis is the only informant
who has ever claimed that he was directly provided with
written information about the case. Hockeit has
steadfastly denied that Hind presented him with any
written documents purporting to include statements by
McLain. The Court finds that the most plausible version
of events is that contained in the verbatim transcript
prepared by Hind of his tape-recorded interview with
DeFilipis on February 5, 1980. (Exh. 318.)

In other words, the Court finds that DeFilipis had
handwritten notes which had been placed wih his
personal property. When the interview started, DeFilipis
mentioned that his conversations with McLain had
occurred three days earlier and that he would have a
better recollection of the meeting if he had his notes with
him. Hind obtained DeFilipis’ notes and gave themto him

24

to review. After reviewing his own notes, Hind and
DeFilipis continued the interview. The evidence strongly
suggests that, when questioned by McLain’s attorneys and
investigators, in an effort to provide them with information
they wanted so that they would leave him alone, DeFilipis
embellished upon this story by stating that the notes Hind
gave him were actually represented as being an unsigned
handwritten confession by McLain.

2. Hockett

With respect to Hockett, McLain does not accuse law
enforcement of directly providing information to the
informant. Rather, McLain alleges a more subtle form of
fabrication -- he asserts that during the interviews, Hind
“just led [Hockett] in the direction he wanted [him] to go."
(Exh. 722, 13:28-14:1, 13:2- 6.) Hockett reaffirmed these
assertions at the evidentiary hearing. Hockett confirmed
that Hind questioned him in this way specifically with
regard to the Ventura crimes as well as with the Solano
crimes.

The Court does not find Hockett’s allegations to be
credible. Hockett testified at the Ventura trial that, during
his interview with Hind, Hockett only mentioned the
Ventura crime in passing and did not provide Hind with
any of the details that McLain had mentioned about the
Ventura crimes. (R.T. 6548.) Consistent with Hockett’s
trial testimony, Hind’s report of his interview with Hockett
mentions the Ventura crimes only in passing. (Exh. 323.)

The Court finds that, consistent with Detective Hind’s
practice of documenting his conversations, if they had
discussed the Ventura crimes in any significant detail or if
Hockett had made any significant statements regarding the
Ventura crimes, Detective Hind would have include those
statements in his report. The absence of details about the
Ventura crime strongly suggests that Hind and Hockett
did not discuss the details of the Ventura crime. The
Court therefore finds that Hind in fact did not ask

25

Hockett leading questions about the Ventura crime or
indirectly provide Hockett with the facts or circumstances
surrounding the Ventura crime.

In sum, the Court finds that Hockett did not obtain
his information about the Ventura crimes from Detective
Hind. McLain has failed to discharge his burden to show
that Hockett falsely testified that McLain admitted
committing the Ventura crimes.

3. Conclusion

Implicit in a grant of habeas relief for a prosecutor’s
knowing use of perjured testimony is the requirement that
there be proof of the perjury itself. The claims that
Detective Hind provided DeFilipis and Hockett with
information about the Ventura crimes -- either by handing
them written documents or asking leading questions -- are
not credible. McLain has failed to establish that DeFilipis
and Hockett committed perjury when they testified at the
Ventura trial that McLain admitted to them that he had
participated in the crimes.

A. Assuming, Arguendo, that DeFilipis and Hockett
Gave Perjurious Testimony at the Ventura Trial,

It i t Reason robable that the ult o

the Trial Would Have Been Different
1. The Standard for Assessing Prejudice

A threshold question regarding the use of allegedly
perjured testimony is the degree of culpability borne by
the prosecution. "[I]f the prosecution knowingly uses
perjured testimony, or if the prosecution knowingly fails to
disclose that testimony ... was false, the conviction must be
set aside if there is any reasonable likelihood that the false
testimony could have affected the verdict." United States
vy. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). Accord
Brown _v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991),

26

Bagley, 473 U.S. at 678-80. On the other hand, where the
false evidence is unknown to the prosecution, the
conviction may be set aside "only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different." Endicott, 869 F.2d at 455.

For the reasons discussed in the following sections,
the Court finds that there was no deliberate wrongdoing
on the part of any member of the prosecution team. The
Court also finds that, although not exhaustive, the
prosecutor’s investigation was sufficient under the
standards prevailing in the early 1980’s. Therefore, the
more stringent standard for testing prejudice applies.
McLain has not discharged his burden to show prejudice
under this more stringent standard.

2. McLain Has Not Shown that_ the
Prosecution Deliberately Solicited

Perjurious Testimony

As explained above, the Court rejects McLain’s
factual contentions that Detective Hind _ either
inappropriately led Hockett during his questioning or
provided DeFilipis with written material other than
DeFilipis’ own notes.

Moreover, it is undisputed that the prosecutor, Peter
Kossoris, never requested that anyone tell anything other
than the truth. In fact, DeFilipis and Hockett both confirm
that Kossoris requested that they tell the truth and only
the truth. Further, throughout the various versions of their
respective stories, both Hockett and DeFilipis have
acknowledged that they never suggested to Kossoris that
the story they were telling was anything other than
truthful.

There is no persuasive evidence that any member of
the prosecution deliberately solicited perjurious testimony.

27

3. cLai ot t t
Prosecution W i ing the

Veracity of the Informants’ Testimony

The problems that can arise from the use of
informant testimony have long been known to the law.
Indeed, the Ninth Circuit recently found that the pitfalls
inherent in informant testimony are so obvious that they
can be judicially noticed. Bernal-Obeso, 989 F.2d at 333.
As described by the Ninth Circuit:

By definition, criminal informants are cut from

untrustworthy cloth and must be managed and

carefully watched by the government and the courts
to prevent them from falsely accusing the innocent,
from manufacturing evidence against those under
suspicion of crime, and from lying under oath in the
courtroom.... [P] Criminals caught in our system
understand they can mitigate their own problems with
the law by becoming a witness against someone else.

Some of these informants will stop at nothing to

maneuver themselves into a position where they have

something to sell.
Bernal-Obeso, 989 F.2d at 333, 334.

At the same time, the Circuit recognized that "our
criminal justice system could not adequately function
without information provided by informants and without
their sworn testimony in certain cases." Bernal-Obeso, 989
F.2d at 334. Although explaining the importance of
confidential informants to the investigation and
prosecution of many types of crimes, id., at 335, the use of
jailhouse informants can be equally helpful in prosecuting
certain criminals.

The Ninth Circuit panel observed that the judicial
system’s response has been to rely on four main avenues
for protecting the integrity of the judicial process:

[The courts] have decided on balance, not to prohibit

... the practice of rewarding self-confessed criminals

for their cooperation, or to outlaw the testimony in

28

court for their testimony. Instead, we have chosen to
rely on (1) the integrity of government agents and
prosecutors not to introduce untrustworthy evidence
into the system, (2) trial judges and stringent
discovery rules to subject the process to close
scrutiny, (3) defense counsel to test such evidence
with vigorous cross examination, and (4) the wisdom
of a properly instructed jury whose duty it is to assess
each witness’s credibility and not to convict unless
persuaded beyond a reasonable doubt of the
accused’s guilt. To quote the Supreme Court, "The
established safeguards of the Anglo- American legal
system leave the veracity of a witness to be tested by
cross- examination, and the credibility of his
testimony to be determined by a properly instructed
jury."

Bernal-Obeso, 989 F.2d at 335 (citations omitted).

Built upon these premises, the circuit affirmed that
“prosecutors and investigators [should] take all reasonable
measures to safeguard the system against such treachery."
Id., 989 F.2d at 334. Upon a review of all the evidence
and testimony, the Court finds that, although not
exhaustive, Kossoris’ investigation was reasonable under
the standards of practice during the early 1980’s and by no
means reckless.

Unlike the contentions regarding what McLain
actually said to the informants, the scope of Kossoris’
investigation is not significantly contested. In sum, Kossoris
personally interviewed each of the informants before they
testified, received and reviewed reports regarding their
statements, “evaluated the nature" of the testimony, and
met with one or two jurors from the Solano trial who gave
their impressions regarding the impact of the informants’
testimony. At each of his meetings with Hockett and
DeFilipis, Kossoris states that he also evaluated their
physical presence and demeanor and attempted to arrive
at his own conclusion as to their credibility.

te Nt an, eaten

Although McLain points out that Kossoris could have
done more, McLain has not demonstrated that Kossoris
was reckless in stopping his investigation where he did.
Kossoris was not obligated to interview the informants
significantly prior to trial. Even though Kossoris did not
interview DeFilipis until the first day of DeFilipis’
testimony and Hockett until the day before Hockett first
testified, Kossoris had not previously committed himself to
using their testimony. The timing of the interviews
suggests no more than that Kossoris made a prediction
that he was likely to use their testimony. An earlier trip to
Solano County for the sole purpose of interviewing the
informants was unnecessary since they did not provide the
foundation for the case, they only helped to seal it.

Moreover, prior to these interviews, Kossoris
consulted other sources regarding the reliability of the
informants. Even though he did not speak with Detective
Hind, Kossoris did speak with Solano County Deputy
District Attorney Robin Keeney, who was sufficiently
familiar with DeFilipis to consider him "a courthouse
fixture" and, because of his position, likely to be generally
familiar with the Solano County criminal community.
Keeney, of course, had also participated in interviewing
DeFilipis. Additionally, Kossoris also received and
reviewed the Solano trial transcripts, Detective Hind’s
report summarizing the DeFilipis and Hockett interviews,
and the verbatim transcript of the DeFilipis interview.

Kossoris also met with at least one of the jurors from
the Solano trial. The Court does not find this to be a
critical part of the investigation since the jurors could only
state whether they believed the .aformants were being
truthful, not whether the informants actually were truthful.
The problem with informants is not simply that they might
lie instead of tell the truth. Rather, the problem is that
they are often in a position where they can credibly and
convincingly tell a tale that is nothing but a fabrication.
Meeting with a juror or other person involved with the
previous trial could only help determine whether the

30

jailhouse informants could weave a credible tale, not
whether the tale they told was in fact true. It is the latter
point that is crucial here. Nonetheless, the effort is not to
be totally discounted.

The Court does not credit Kossoris’ evaluation of the
likely truth based on his assessment that “all people in jail
talk." Such a sweeping generalization is far from the
stringent assessment of veracity that is constitutionally
required. To conclude that all people talk is to dismiss the
possibility that, even though an inmate might talk, some
jailhouse informants may nonetheless manufacture claims
that the inmate spoke with that particular informant. To
rely on this type of conclusion is also to collapse Kossoris’
stated two- pronged analysis into one -- since the first will
always be satisfied since "everyone talks." The concern
about informant veracity is not of recent vintage and the
reasonableness of Kossoris’ conclusion that McLain spoke
should be based on specific facts relating to McLain and
the individual informants, not on the sweeping
generalization that everyone talks.

Beyond the generalizations, however, Kossoris did
make a credibility assessment that was specific to McLain
and the particular informants involved. Kossoris explained
that he had information that McLain had previously
boasted about his role in the 1971 rape of Jodi Whitman
and, additionally, had written an autobiography that was
seized by prison officials. In light of incidents such as
these, Kossoris considered McLain to be a "classic
sociopath,” highly likely to have discussed his criminal
exploits and given details to others with whom he had no
previous connection. In light of these factors specific to
McLain, Kossoris could reasonably conclude that McLair
was likely to have talked with other inmates while
incarcerated.

Kossoris could also have reasonably concluded that
McLain boasted to these particular inmates. Kossoris
explained that he evaluated the likelihood that the
informants stories were concocted in light of the fact that

31

DF eT NE RAYE AU AWE DE Sey

the stories were corroborated by the physical evidence and
that the informants each had common and different facts.
One of the factors Kossoris relied upon was that DeFilipis,
for example, was able to accurately describe locations
even though he had never been to Ventura.

That the informants’ stories were corroborated by the
physical evidence has turned out to be an insufficient
benchmark standing by itself. The inadequacy of this
standard is proof of the numerous ways in which jailhouse
informants have been able to learn information about a
case -- such as, for example, by reading newspaper
accounts -- even though they had no communication with
the defendant.

The other obvious deficiency is that the purpose of
the investigation is to determine whether the plausibly
accurate story being told by an informant is in fact true. A
jailhouse informant who recounts facts that are wholly
inconsistent with the physical evidence will be readily
uncovered as a fraud and will not be used. The concern,
however, is over the veracity of informants who are able
to relate facts that are corroborated by the physical
evidence.

This factor, however, is not a useless standard so long
as it functions only as a guide. More pertinent to the
instant case is that it was not an unreasonable guidepost
during the early 1980’s. In this case, the informants all
knew that the victim was a woman, that she was shot
three times, that McLain went to Ventura to seek revenge
against a former rape victim who testified against him,
that McLain and his companions had located and
attempted to enter her house, and the common
description of the murder victim as "big" or "heavy" and in
her early 20’s.

Although he did not identify any specifics in his
evidentiary hearing testimony, Kossoris also said that he
was impressed by the fact that the informants also all
knew of different facts -- i.e., they were not simply relating
a commonly manufactured story. A review of the record

32

confirms that Kossoris’ statement is accurate. Hockett, for
example, knew of the Dodge Charger and that the vehicle
had mechanical problems; DeFilipis knew of the car
troubles and that the threesome then stole a Volkswagen.
Both DeFilipis and Hockett knew that McLain was
accompanied by two accomplices, but they remembered
the names of different ones -- DeFilipis remembered the
name Teddy, that Teddy was McLain’s nephew, and that
there was someone else; Hockett remembered that one of
the boys was named Lloyd. Although these facts were all
accurate and, indeed, distinct, according to both Kossoris
and Hockett, Kossoris had very little information about
the substance of Hockett’s anticipated testimony regarding
the Ventura killing until after Hockett testified at the
Ventura trial.

Since other cellmates did come forward and
specifically refute that McLain spoke with anyone,
Kossoris might have been more thorough by interviewing
other people who shared the cell with McLain to ask them
whether McLain ever spoke about his case or whether he
had confessed to killing anyone. That he did not do so,
however, does not seriously undermine the reasonableness
of his other efforts. The only remaining criticisms of any
significance are more recent developments in prosecutorial
investigative techniques in weeding out untruthful
informants.

During the early 1980s, it was typical to rely on such
factors as that the information was known only to law
enforcement and that the information was corroborated by
the physical evidence. Combined with other factors such
as the likelihood that McLain actually bragged, the
discussions with the Solano district attorney, reviewing
reports and transcripts of prior conversations and
testimony, although not unimpeachable, given the totality
of the circumstances, Kossoris’ investigation was certainly
reasonable and definitely not reckless.

33

In light of the Court’s conclusions that the material
aspects of DeFilipis’ and Hockett’s testimony were true,
there is little likelihood that any slight variations would
have made any difference in the outcome.

II. Third Claim: Jailhouse _Informants_-- _Massiah
Violation

In his third claim for relief, McLain asserts that the
State interfered with his constitutional right to counsel
when he spoke with cellmates who later relayed McLain’s
statements to the jail authorities. Massiah v. United
States, 377 U.S. 201, 205-06 (1964). "[A] defendant does
not make out a violation of [the right to counsel] simply
by showing that an informant ... reported his incriminating
statements to the police." Kuhlmann v. Wilson, 477 U.S.
436, 459 (1986). Rather, "the Sixth Amendment is violated
when the State obtains incriminating statements by
knowingly circumventing the accused’s right to have
counsel present in a confrontation between the accused
and a state agent." Maine v. Moulton, 474 U.S. 159, 176
(1985) (emphasis added). Thus, in order to establish a
violation of the right to counsel, McLain must establish
that the informants were actually working as police agents.

A. DeFilipis

The Court finds that DeFiipis’ initial contact with
investigating officers occurred in the manner described in
Detective Hind’s tape-recorded interview in February
1980. A verbatim transcript of the interview was received
at the evidentiary hearing as Exhibit 318 without any best
evidence or hearsay objection. Even if the transcript had

34

been admitted only for its non-hearsay purposes, in light
of DeFilipis’ repeated inconsistencies, the Court has
sufficient doubt regarding the veracity of DeFilipis’ current
version such that the current story cannot be said to have
been established by the requisite preponderance of the

evidence. Sumner v. Mata, 449 U.S. 539, 551 (1981),
McKenzie v. McCormick, 27 F.3d 1415, 1419 (9th Cir.
1994).

Specifically, the Court finds that DeFilipis’
handwritten notes were found by a guard during a routine
entry search and that, when DeFilipis explained what they
were, on DeFilipis’ request the guard placed the note
paper with DeFilipis’ stored property to keep the notes
safe and to protect DeFilipis’ safety should another inmate
find the papers. Partially out of fear of McLain, DeFilipis
then requested to speak with the investigating detective.

The Court further finds that, at DeFilipis’ request, the
guard placed a phone call to Detective Hind at his
residence. Prior to receiving the phone call, Detective
Hind had never heard of Edward DeFilipis. Hind spoke
only briefly with DeFilipis to schedule an appointment for
the following day. Hind met with DeFilipis on February 5,
1980 (several days after DeFilipis’ conversations with
McLain), received information from DeFilipis, and
specifically told DeFilipis not to seek out further
information. DeFilipis was released within three hours of
this conversation. _

DeFilipis’ recent claim that the guard threatened to
transfer DeFilipis to a dangerous portion of the jail where
racial tensions were high, especially considering the source
(DeFilipis), is simply not credible.

Based on these findings, there is no basis for finding
a connection between law enforcement officers and
Edward DeFilipis. Prior to his meeting with Hind,
DeFilipis had no contact with law enforcement as a
potential agent. At the meeting on February 5, 1980,
DeFilipis was specifically told not to investigate further.

Cf. United States v. Henry, 447 U.S. 264 (1980), Moulton,

35

474 US. 159. The Court does not find these instructions
dispositive, but rather finds that DeFilipis was released in
such a short period of time that he had no opportunity to
conduct any sort of investigation. In short, DeFilipis was
not acting as a police officer. McLain was not deprived of
his right to counsel when speaking with a fellow inmate
who was nothing other than an incarcerated private
citizen.

B. Hockett

McLain has failed to persuasively demonstrate any
connection between law enforcement and Hockett.
Hockett states that he believed his assistance was sought
by law enforcement because Doyle Smith said that he,
Smith, was working in connection with Hind to build a
case against McLain. In essence, Hockett says Smith said
that Hind said that Smith could work with the investigative
team in order to shore up the case against McLain.

The Court concludes that, if each of the nested
statements were true, the law enforcement connection
would be sufficient as a matter of law. The Attorney
General did not object to Hockett’s testimony as hearsay.
Irrespective of the Court’s power to exclude this evidence
sua sponte, the Court does not find this testimony
sufficiently reliable or credible. The multiple levels of
hearsay undermine the reliability of the ultimate allegation
at issue -- whether Hind and Smith worked out an official
arrangement such that Smith was empowered to enlist
Hockett in his investigative efforts. The reliability of
Hockett’s testimony is also belied by the minimal amount
of information that is within his personal knowledge.
McLain has not presented any specific facts establishing
Smith’s alleged law enforcement connection; he has only
offered Hockett’s general conclusionary opinion that Smith
was part of the investigative team. "Petitioner must
convince the district court "by a preponderance of
evidence’ of the facts underlying the alleged constitutional

36

error." McKenzie, 27 F.3d at 1419, quoting Johnson v.
Zerbst, 304 U.S. 458, 469 (1938). Accord Mata, 449 U.S.
at 551. Hockett’s testimony of what Smith said Hind said

does not satisfy that burden in this case.

C. Conclusion

The Court finds no credible evidence connecting
either of the jailhouse informants with law enforcement
authorities at the time of the informants’ conversations
with McLain. Absent a law enforcement connection, the
Sixth Amendment claim fails. Kuhlmann, 477 US. at 459.

IV. Fourth Claim: Jailhouse Informants -- Brady Violation

"[T]he prosecutor’s withholding of evidence favorable
to the accused violates due process where the evidence is
material either to guilt or innocence. Favorable evidence
includes impeachment evidence." United States _v.
Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1992)
(citation omitted).

To prove a Brady violation the defendant must show

failure to disclose material evidence. Evidence is

material if "there is a reasonable probability that, had

the evidence been disclosed to the defense, the result

of the proceeding would have been different."
Brumel-Alvarez, 991 F.2d at 1461, quoting Bagley, 473
US. at 682.

As already explained in the context of Claim I],
McLain’s assertion that the prosecution failed to disclose
that Hind provided the jailhouse informants with their
information is unfounded. The jailhouse informants
obtained their information from McLain. There was
nothing more in this regard for the prosecutor to disclose.

The Attorney General does not dispute that
‘Detective Hind had promised to assist DeFilipis and
Hockett locate jobs upon being released and that Kossoris
failed to inform defense counsel of these promises.

\

37

Although this information probably should have been
disclosed to the defense or brought out during trial, in this
case ‘he information was ultimately not material.

The jailhouse informants received much more
substantial benefits that were significantly more tangible.
DeFilipis, for example, walked out of jail barely 3 hours
after speaking with Detective Hind and Deputy District
Attorney Keeney. He also acknowledged that he had
access to newspaper clippings that McLain kept regarding
the Ventura crimes and that he had served as an
informant many times before (possibly as many as 300
times). Pell even introduced a stipulation between himself
and Kossoris that DeFilipis’ own mother would testify that
she would not believe a word he said because he is an
incorrigible liar and has a horrible reputation for being
truthful.

The jurors learned that Hockett had an upcoming
probation revocation hearing and that Kossoris had
promised to write a_ letter describing Hockett’s
cooperation and would request leniency on Hockett’s
behalf. More substantially, Pell secured Hockett’s
admission that, in defense to his prior charges, Hockett
had feigned mental illness, including claims of auditory
and visual hallucinations and amnesia, to which Hockett
falsely testified in court. Hockett explained that while he
had been willing to lie about his own mental state, he was
not willing to lie about McLain’s statements even though
he had struck a deal in exchange for favorable testimony.
It was up to the jury to assess the credibility of this
assertion.

The jurors may well have credited both Hockett’s and
DeFilipis’ testimony. Any of the jurors, however, that
credited the informants’ testimony after Pell’s
cross-examination would not likely have been influenced
to discredit these informants upon learning that Hind had
also promised to assist them in finding a job upon being
released.

Furthermore, and equally important, as noted above,
the jailhouse informants were simply not the linchpin to
the prosecution’s case. Kosscris certainly capitalized on
the informants’ testimony throughout his closing argument
-- Often using their testimony as the glue that held
together various strands. (32 R.T. 7853-79; 32 R.T.
7867-73.) Kossoris, in fact, spent more time bolstering the
informants’ credibility than he spent attacking McLain’s
“incredible and unbelievable" story. (32 R.T. 7867-73,
7885-90.) Kossoris also used the informants’ testimony to
prove McLain’s role as a principal, which was important
for establishing death eligibility. But, notwithstanding
Kossoris’ significant reliance on the informant testimony,
the information not disclosed to defense counsel simply
cannot be found to be material. There is virtually no
likelihood that "competent counsel would have made a
different result reasonably probable," Kyles v. Whitley, 115
S. Ct. 1555, 1569 (1995), simply by being able to
additionally exploit evidence regarding the informants’
future job prospects.

V. Fifth Claim: Jailhouse Informants -- New Evidence

McLain reasserts the oft-repeated observation that
"death" is "different." Gardner v. Florida, 430 U.S. 349,

357 (1977) (plurality), Beck vy. Alabama, 447 U.S. 625, 637

(1980), Harmelin v. Michigan, 501 U.S. 957, 994 (1991).

Related to this, the Supreme Court has frequently
affirmed that "there is a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment." Woodson v. North Carolina,
428 US. 280, 305 (1976) (plurality), Johnson _v.
Mississippi, 486 U.S. 578, 590 (1988). Although the Court
has found this principle applicable to the guilt phase of
capital trials as well as sentencing, Beck, 447 U.S. at 638,
the circumstances have been far different from those in
the present case.

39

The unreliability asserted in this case is premised
upon the possibility that the informants’ testimony at trial
was untrue or, at least as to these informants, not
sufficiently reliable. What McLain essentially challenges is
Hockett’s and DeFilipis’ credibility. While implicitly
acknowledging that credibility determinations are to be
left to the jurors, McLain seeks to have these two
informants declared either incredible as a matter of law or
at least not sufficiently credible that the jury should not
have been allowed to rely on their testimony.

McLain, however, fails to present anything "new" as
to the informants’ credibility. The reasons for the
informants’ claimed unreliability were fully developed at
the state trial. Pell thoroughly cross-examined Hockett and
DeFilipis as to the circumstances of their conversations
with McLain, strongly challenged their veracity, and
highlighted their motivations to fabricate testimony against
McLain for their own benefit. The purportedly "new"
evidence is that these informants have now recanted and
re-recanted their stories. But this scenario was plainly
foreseeable to the trial jury. Although the events that have
transpired in the last 15 years -- and particularly in the last
three -- are events which could not have been known te
the jury prior to their having occurred, the circumstances
surrounding the jailhouse conversations were sufficiently
presented to the jury. The jury was entitled to evaluate
the credibility of the witnesses and determine the
likelihood that these witnesses’ biases or propensity for
falsehoods may have affected the credibility of their
testimony.

VI. Sixth Claim: Exclusion of Accomplice Histories

The sixth claim for relief asserts that because the trial
court excluded evidence relating to the credibility and
psychological condition of McLain’s two accomplices, his
conviction and death sentence have been unlawfully and

ee ee he ee ee ae, ee ee ne Se oe

unconstitutionally imposed in violation of the Sixth,
Eighth, and Fourteenth Amendments.

The irial court excluded evidence of Willis’ previous
attack on a child and prohibited cross-examination on, and
the admission of evidence concerning, Ketcherside’s prior
attacks on adolescent women, his mental defects, and his
commitment to a mental hospital. Additionally, the trial
court rejected a defense request that a psychiatric
examination of Ketcherside be conducted and denied
discovery that would have led to disclosures affecting
Ketcherside’s credibility and competency.

Petitioner alleges that the exclusion of this evidence
violated his rights under the Sixth and Fourteenth
Amendments to confront and cross-examine the witnesses
against him. He asserts that these are facts from which
bias, prejudice or lack of credibility might be inferred.
Specifically, he argues that evidence of Ketcherside’s prior
attacks on young women would have served to impeach
Ketcherside’s testimony that he was a mere bystander in
the Kelley incident. He further argues that the prior
attacks were relevant to show bias. He also asserts that
the fact that these prior attacks could have been used to
enhance any sentence that Ketcherside could have gotten
from the Kelley incident might have increased his
incentive to lie and implicate petitioner so that he could
receive immunity. Petitioner argues that this potential
impeachment was crucial because Ketcherside provided
the only direct evidence that petitioner was involved in the
Kelley murder.

Petitioner contends that the evidence of prior attacks
by Willis and Ketcherside was also relevant to his defense
that Ketcherside and Willis had committed the murder.
He argues that the fact that they had previously
committed assaults was crucial to prove that they had the
ability to conceive of such a plan on their own. Thus, he
asserts the guilt phase was tainted by the exclusion of the
evidence.

41

He argues that the penalty phase also was tainted by
the exclusion of evidence of Willis’ attack on a child and
Ketcherside’s attacks on females. This prevented the
defense from attacking the State’s picture of McLain as
having led two young innocents astray. It allowed the State
to argue that McLain was the ringleader.

Petitioner argues that the evidence sought to be
introduced fell within the exceptions set forth in California
Evidence Code s 1101. In general, section 1101 prohibits
evidence of character to prove conduct on a specific
occasion. The section does not, however, prohibit evidence
that a person committed a crime when relevant to prove
some fact other than his disposition to commit such acts.
Nor does section 1101 affect the admissibility of character
evidence to attack credibility. Petitioner asserts that the
evidence of the prior attacks by Ketcherside was not
offered not to prove that Ketcherside committed the
Kelley murder, but to discredit Ketcherside’s testimony
and rebut the State’s portrayal of McLain as leading two
young innocents astray.

McLain argues that the admission of evidence
concerning his prior rape convictions compounded the
prejudice flowing from the erroneous exclusion of the
evidence of Ketcherside’s and Willis’ histories of violent
attacks on women. The trial court allowed admission of
evidence of the petitioner’s prior sexual assaults against
Jodi Whitman and Lisa Donaldson: McLain argues that
this led the jury to view Ketcherside and Willis as
relatively innocent and passive in comparison to McLain.

Petitioner also requested a psychiatric examination of
Ketcherside to determine whether he was competent to
testify. Petitioner argues that the trial court erroneously
denied this examination given that it was reasonably
accessible, would have produced relevant evidence, and
was of central importance to an intelligent defense in this
trial.

42

The State asserts that at no time during the guilt
phase did McLain attempt to introduce evidence of Willis’
unadjudicated juvenile allegations of child molestation.

The State further argues that there is no
constitutional authority that holds that a state criminal
defendant is entitled to psychiatric examination of a
prosecution witness. Similarly, no constitutional authority
entitles the defendant to admission of prior unadjudicated
juvenile allegations of either a prosecution witness or an
accomplice to prove innocence or demonstrate remorse at
the penalty phase.

A. Guilt Phase

The Sixth Amendment, as made applicable to the
States by the Fourteenth Amendment, guarantees a
criminal defendant the right to confront witnesses against

him. Davis v. Alaska, 94 S. Ct. 1105, 1110 (1974). ""[A]

primary interest secured by it is the right of
cross-examination."” Id. (quoting Douglas v. Alabama, 85
S. Ct. 1074, 1076 (1965)). "’[T]he exposure of a witness’
motivation in testifying is a proper and important function
of the constitutionally protected right of
cross-examination."” Id. (quoting Greene v. McElroy, 79 S.
Ct. 1400, 1413 (1959) (evidence that prosecution’s main
witness was on probation should have been admitted as
evidence of bias)).

"[A] limitation on a cross-examination which prevents
a person charged with a crime from placing before the
jury facts from which bias, prejudice or lack of credibility
of a prosecuting witness might be inferred constitutes
denial of the right of confrontation guaranteed by the
Sixth Amendment." United States v. Garrett, 542 F.2d 23,
25 (6th Cir. 1976) (citing Davis, 94 S. Ct. 1105).

"[T]he focus of the prejudice inquiry in determining
whether the confrontation right has been violated must be
on the particular witness, not on the outcome of the entire

trial." Delaware v. Van Arsdall, 106 S. Ct. 1431, 1435

43

(1986). The inquiry to be made is whether "{a]
reasonable jury might have received a_ significantly
different impression of [the witness’] credibility had
[defense counsel] been permitted to pursue his proposed
line of cross-examination."”’ Olden v. Kentucky, 109 S. Ct.
480 (1988), quoting Van Arsdall, 106 S.Ct at 1436.
However, the denial of the right to confront witnesses
is not per se error requiring automatic reversal. It may be
harmless. Van Arsdall, 106 S. Ct. at 1437 (1986). On
direct appeal, if it is found that the Confrontation Clause
has been violated, reversal is required unless the reviewing
court can conclude that the error was harmless beyond a
reasonable doubt. Van Arsdall, 106 S.Ct at 1438.
However, a higher standard for prejudice applies during
collateral review. Brecht v. Abrahamson, 113 S.Ct 1710,
1722 (1993).
In the context of a habeas attack, the deprivation of
a constitutional right does not justify habeas relief unless
the error "had substantial and injurious effect or influence
in determining the jury’s verdict."” Brecht, 113 S. Ct. at
1722, quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946). "Under this standard, habeas petitioners may
obtain plenary review of their constitutional claims, but
they are not entitled to habeas relief based on trial error
unless they can establish ‘actual prejudice.’ Brecht, 113 S.
Ct. at 1722. However, "when a habeas court is in grave
doubt as to the harmlessness of an error that affects
substantial rights, it should grant relief." O’Neil v.
McAninch, 115 S. Ct. 992, 998 (1995).
Brecht only applies to "trial error."
Trial error "occur[s] during the presentation of the
case to the jury," and is amenable to harmless-error
analysis because it "may ... be quantitatively assessed
in the context of other evidence presented in order to
determine [the effect it had on the trial]." At the
other end of the spectrum of constitutional errors lie
"structural defects in the constitution of the trial
mechanism, which defy analysis by *harmless-error’

44

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standards." The existence of such defects --
deprivation of the right to counsel, for example --
requires automatic reversal of the conviction because
they infect the entire trial process.
Brecht, 113 S. Ct. at 1717 (quoting Arizona v. Fulminante,
111 S. Ct. 1246, 1249, 1254 (1991)).

The denial of a defendant’s opportunity to impeach
a witness in violation of the Confrontation Clause
constitutes "trial error." See Van Arsdall, 106 S. Ct. at
1438.

There are three basic types of evidence Petitioner
argues should have been admitted: (1) evidence of Willis’
prior attack on a child; (2) evidence of Ketcherside’s prior
attacks on females; and (3) evidence of Ketcherside’s
mental defects and hospitalization, including evidence
from a psychiatric exam.

McLain fails to explain how excluding the evidence
relating to Willis violated his constitutional rights in the
guilt phase. Willis did not testify. Therefore, McLain had
no right to confront him. There was no violation of the
Confrontation Clause by the exclusion of this evidence.

Nor were McLain’s rights under the Confrontation
Clause violated by the trial court’s exclusion of evidence
of Ketcherside’s prior bad acts. To the extent it was at all
relevant to credibility, a reasonable jury would not have
received a_ significantly different impression of
Ketcherside’s credibility if the evidence had been
admitted. Defense counsel thoroughly cross-examined
Ketcherside. Pell attacked Ketcherside’s credibility by, for
example, casting doubt on Ketcherside’s story that he was
at the beach at the time of the Kelley murder, bringing
out Ketcherside’s different stories regarding the theft of
the Dodge Charger, and reading to the jury Ketcherside’s
prior inconsistent statements describing the events at
Whitman’s apartment. Even the prosecutor told the jury
to assume that Ketcherside was lying about his innocence
of the Kelley murder.

45

Defense counsel sought to impeach Ketcherside’s
statement that he remained at the beach. Even though
McLain was prevented from using Ketcherside’s prior bad
acts to do this, the prosecutor did as much in his closing
argument. He stated that it would be reasonable for the
jury to disbelieve Ketcherside’s testimony about his limited
role. (R.T. 7858.) In fact, the prosecutor told the jury to
assume Ketcherside was an accomplice. (R.T. 7845.) The
prosecutor also admitted that Ketcherside was not an
"angel" and was less than honest. (R.T. 7857.) Thus, a
reasonable jury would not have received a significantly
different impression of Ketcherside’s credibility if the
evidence had been admitted.

Excluding this evidence may have affected McLain’s
ability to present his defend on the basis that Willis and
Ketcherside, acting independently of McLain, murdered
Kelley. The defense was not able to inform the jury that
the persons being accused had violent propensities. But
this would have been an impermissible use of prior bad
acts evidence under California Evidence Code § 1101
because the defense could not use evidence of
Ketcherside’s and Willis’ prior bad acts to prove they had
a propensity to assault women and, therefore, probably
assaulted Kelley. Furthermore, the prior assaults were so
factually dissimilar to the Kelley crime that they had very
little, if any, probative value as to who murdered Kelley.
The exclusion of the evidence did not render the trial
fundamentally unfair and thus did not violate McLain’s
constitutional rights.

Finally, Petitioner asserts he should have been
allowed to conduct a psychiatric examination concerning
Ketcherside’s ability to tell the truth and been able to
present evidence of Ketcherside’s mental defects. Opinion
testimony of a witness’ ability to tell the truth is generally
inadmissible under the California law. Cal.Evid.Code §
805, People v. Cooks, 141 Cal. App. 3d 224, 302, 190 Cal.
Rptr. 211 (1983), cert. denied, 464 U.S. 1076 (1984). As
discussed above, the evidence that was admitted was

46

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sufficient to attack Ketcherside’s credibility. Therefore, the
exclusion of this evidence did not violate the
Confrontation Clause. Moreover, jurors are the ones
assigned to measure the credibility of witnesses. The
denial of a psychiatric examination of the truthfulness of
Ketcherside was not fundamentally unfair.

Even if the exclusion of the evidence concerning
Ketcherside violated the Confrontation Clause, it is clear
that the exclusion of the evidence did not have a
“substantial and injurious effect" on the determination of
the jury’s verdict and therefore does not entitle McLain to
habeas relief. Any additional evidence to impeach
Ketcherside would have had a minimal effect, if any, on
the verdict. Evidence to prove Ketcherside and Willis were
capable of committing the Kelley murder on their own
would also have had a minimal effect, if any, on the
determination of the jury’s verdict given the large amount ©
of evidence that supported the conclusion that Petitioner
was involved in the Kelley offense.

B. Penalty Phase

McLain complains that the exclusion of this evidence
enabled the State to argue that the fact that McLain led
astray two young and innocent juveniles was an
aggravating factor. McLain contends that he should have
been allowed to rebut this argument with evidence that
Willis and Ketcherside were not innocent and were fully
capable of violent acts prior to meeting McLain.

The Eighth and Fourteenth Amendments require that
the sentencer "not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than
death." Lockett, 438 U.S. at 604 (plurality).

McLain’s argument fails because the State never
claimed that Ketcherside and Willis were innocent youths.

47

iii

On the contrary, Kossoris candidly acknowledged that they
were not. (R.T. 8820.)

The Court therefore denies the petitioner’s sixth
claim for relief.

VII. Seventh Claim: Exclusion of Collusion Evidence

Petitioner’s seventh claim for relief asserts that,
because the trial court excluded statements made by Willis
indicating collusion between him and Ketcherside against
McLain, his conviction and death sentence were unlawfully
imposed in violation of the Sixth, Eighth, and Fourteenth
Amendments.

According to Petitioner, Willis told a cell-mate, J.S.
Williams, that he and Ketcherside had attempted to "get
the story together” and "put it on” McLain. The
prosecution successfully excluded this evidence through a
motion in limine "to Exclude Inadmissible Hearsay
Statements by Theodore Willis.”

Petitioner asserts that the trial court excluded
Williams’ testimony on the grounds that it was hearsay
that did not qualify as a statement against penal interest.
He also asserts that the trial court excluded the testimony
of Dennis Morrison that Willis stated that he and
Ketcherside were attempting to put a story together to
blame McLain for the homicides.

Petitioner asserts that this evidence was important at
both the guilt and the penalty phases because it supported
the defense that Ketcherside and Willis committed the
murder and was, therefore, mitigating. He asserts that the
exclusion of the evidence violated his rights to due process
and to confront witnesses against him.

The trial court did not exclude evidence of collusion
as inadmissible hearsay. Rather, the trial court’s
"preliminary view" was that the statements were hearsay
not within any exception. Later, however, the trial court
recognized that the statements concerning an intent to
blame the crime on the petitioner were arguably

48

admissible. But the trial court also observed that such
evidence would raise the question of what crime
Ketcherside and Willis were attempting to pin on
petitioner and would entitle the prosecutor to attempt to
prove that it was the Solano County murder. The trial
court had previously granted a defense motion to exclude
evidence of the Solano crimes.

The testimony of Dennis Morrison was discussed on
the record. (R.T. 7456.) The trial court indicated that it
did not believe any statement made by Willis to Morrison
to the effect that he was attempting to place the blame for
a crime on the petitioner was a statement against penal
interest. Alternatively, the trial court noted that even if it
let in Morrison’s testimony, it would then let in evidence
of the murder in Solano County to allow the prosecution
to prove that the crime referred to by Willis was the
Solano County murder, not the Ventura County one. Once
the trial court expressed these views, defense counsel
never offered Morrison’s testimony.

The testimony of J.S. Williams was discussed several
times. The petitioner offered testimony by Williams
concerning: (1) statements by Willis to Williams wherein
Willis admitted shooting the victim; (2) observations of
Willis passing notes to Ketcherside and what Willis said
‘the notes were; and (3) statements by Willis that he and
Ketcherside were blaming a crime on McLain. The trial
court ruled that the first category of testimony was
admissible as a statement against penal interest. The
second was only admissible as far as observations made by
Williams, not anything said by Willis. The third was not
admissible as it was not a statement against penal interest.
(R.T. 7445-56.) However, the trial court also determined
that to the extent the first category of testimony was
admitted, the prosecution could explore who else was
involved in the murder. If the prosecution chose to go into
that area of evidence, then the testimony concerning
Willis’ statements that he was trying to blame the crime
on the petitioner would be admissible. But the statements

49

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by Willis that he was attempting to place the blame on
McLain would open the door for the prosecution to argue
that the crime referred to by Willis was the Solano County
murder, not the murder of Kelley.

The defense did not offer any testimony by Williams
-- not even the testimony that the trial court determined
was admissible.

The State argues that defense counsel made a tactical
decision not to elicit the evidence of the collusion, or
alternatively, that this ruling does not present a federal
question.

Federal courts will not disturb state court evidentiary
rulings on habeas corpus review unless the rulings violated
fundamental due process and the right to a fair trial.
Jammal v. Van de Camp, 926 F.2d 918, 919 (9th Cir.
1991). "[FJailure to comply with the state’s rules of
evidence is neither a necessary nor a sufficient basis for
granting habeas relief." Id.

However, habeas relief will lie if the evidentiary ruling
violated the Confrontation Clause and had a substantial
and injurious effect or influence in determining the jury’s
verdict. Van Arsdall, 106 S. Ct. 1431, Brecht, 113 S. Ct.
at 1722.

There is littie question but that defense counsel made
a tactical choice not to offer Morrison’s and Williams’
testimony for fear that it could open the door to the
Solano County murder which had been successfully
excluded from the trial. In a similar instance involving
blood evidence on Ketcherside’s trousers, defense counsel]
did not introduce the evidence after being informed by the
trial court that the prosecution would be allowed to argue
the blood on the trousers came from the Solano County
murder, not the Kelley murder.

Even if the petitioner’s trial attorney did not make a
tactical choice to omit this evidence and the trial court
erroneously excluded it, its exclusion did not render the
trial fundamentally unfair or violate the Confrontation
Clause so as to justify habeas relief.

50

Willis did not testify. Thus, any evidence that he and
Ketcherside coliaborated on their stories would not be
relevant to judging his credibility or for weighing the
significance of any similarities between their stories.

The statement that Willis and Ketcherside were
blaming a crime on McLain might be probative of
Ketcherside’s credibility and in judging McLain’s testimony
that he was not involved in Kelley’s murder. However, the
record is unclear as to which crime Willis was referring. It
could have been the Ventura County Kelley murder. It
could have been the Solano County Bazargani murder. Or
breaking into Whitman’s apartment, or stealing the Dodge
Charger, or some other crime. The trial court brought this
uncertainty to Pell’s attention. Pell did not seek to clarify
the record. Without the clarification, Pell failed to prove
the probative value of the evidence offered.

Furthermore, Ketcherside’s credibility was seriously
shattered both by defense cross-examination as well as by
the prosecutor himself. As a result, the additional evidence
addressed in the instant claim would not have caused a
reasonable jury to have a significantly different impression
of Ketcherside.

The Court therefore denies Petitioner’s seventh claim
for relief.

VII. Eighth Claim: Unreliability of Informant
Testimony Instruction

Petitioner’s eighth claim for relief complains that his
conviction and death sentence were unlawfully imposed in
violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments because the trial court failed to instruct the
jury that informant testimony must be examined with
greater care than the testimony of ordinary witnesses.

Petitioner asserts that the only live testimony
implicating the petitioner was from an immunized
accomplice and two jailhouse informants. He argues that,
in a death penalty case, the trial court must admonish the

51

; jury to examine testimony of an informant with greater

| care. He concludes that the failure of the court to give

| such an instruction sua sponte is unconstitutional.

| Federal courts have required a separate instruction

| directing juries to carefully examine informant testimony.
On Lee v. United States, 72 S. Ct. 967 (1952), Guam v.
Dela Rosa, 644 F.2d 1257 (9th Cir.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1634%3A3. Public record. Not legal advice.