Petition for Writ of Certiorari — Myers v. Alameida
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011175 yan 3 1 2002
Supreme Court of the Anited States
ALAN RICHARD MYERS,
Petitioner,
Us.
C.A. TERHUNE, DIRECTOR, CALIFORNIA
DEPARTMENT OF CORRECTIONS,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STA1ES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
CONRAD PETERMANN
Counsel of Record
8306 Wilshire Boulevard, PMB 797
Beverly Hills, California 90211
(323) 653-4779
Attorney for Petitioner
ALAN RICHARD MYERS
Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 * (949) 720-1510
i
QUESTIONS PRESENTED
Does the Sixth Amendment require that whether
“appropriate” and “reasonable” investigations have been
made, the question must be resolved by the characteristics of
the particular case to resolve claims that counsel has provided
ineffective assistance?
Has the Ninth Circuit so trivialized petitioner’s claims,
ignored the precedent from its own court as well as that from
other circuits as provided in petitioner’s briefs, that it failed to
meaningfully review the district court’s and the state court’s
findings on petitioner’s Sixth Amendment claim?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED...0........ccscssessssssssesssssecsseesosesss. i
TABLE OP AUTHIORITIES ..c...ccccscccecoccessosecsosscsarsooseee.. vi
ip ph faa eT CT l
JURISDICTIONAL STATEMENT ...0..0eescsescssessseeeooeeocess.. 2
CONSTITUTIONAL PROVISIONS ....0.-cccccccssecssescosseeces... 2
~ STATEMENT OF THE CASE ..seesccccosceeccccseeececcoceccc 2
REASON WHY THIS PETITION SHOULD BE
des thei coge E PATNS 5
ie ati ilchiiiicsticia aceite 5
B. Readily available witnesses found after
petitioner’s trial proved that he was 65 miles
away when the shots were fired .............cccccc0.0....... 7
C. Expert testimony at the evidentiary
hearing affirmed counsel’s duty to identify
and interview all potential witnesses .................... 11
D. The Ninth Circuit trivialized petitioner’s
claim and failed to follow precedent from its
Own Circuit as well as the precedent of other
circuits in interpreting whether the state’s
court application of Strickland was
DN atelicinetchncnindinetiasicae ns 16
.
I aie ciihcenicadeastancbasies cietaas Ch Soe nc 25
iii
APPENDIX A Order Providing Notice of Ninth's
Circuit's Affirmance, Entered November 27, 2001,
Myers v. Terhune, Ninth Circuit Court of Appeals,
#00-56505 A
APPENDIX B Order Denying Petition for Rehearing and
Petition for Rehearing En Banc, Filed November 6,
2001, Myers v. Terhune, Ninth Circuit Court of
Appeals, #00-56505 B
APPENDIX C Memorandum, Filed September 25, 2001,
APPENDIX D Judgment, Filed July 25, 2000, Myers v.
APPENDIX E Order Adopting Findings, Conclusions and
APPENDIX F Report and Recommendation of United
APPENDIX G Reporter's Transcript of Evidentiary
Hearing on December 6, 1999, Myers v. Terhune,
United States District Court, Central District of
California, #ED CV 98-215-VAP(E) (Lodged
‘contemporaneously herewith)
Myers v. Terhune, Ninth Circuit Court of Appeals,
#00-56505 C
Terhune, United States District Court, Central
District of California, 4#ED CV 98-215-VAP(E) D
Recommendations of United States Magistrate
Judge, Filed July 25, 2000, Myers v. Terhune,
United States District Court, Central District of
California, #ED CV 98-215-VAP(E) E
States Magistrate Judge, Filed June 28, 2000, Myers
v. Terhune, United States District Court, Central
District of California, #ED CV 98-215-VAP(E) F
iv
APPENDIX H Declaration of Strickland Expert Barry
Levin, Dated March 3, 1999, HC Exhibit AA,
Myers v. Terhune, United States District Court,
Central District of California, 4ED CV 98-215-
VAP(E) H
APPENDIX I Declaration of Strickland Expert Edward A.
Rucker, Dated March 1, 1999, HC Exhibit BB,
Myers v. Terhune, United States District Court,
Central District of California, #ED CV 98-215-
VAP(E) I
APPENDIX J Declaration of Investigator Danny Davis,
Dated March 7, 1999, HC Exhibit Z, Myers v.
Terhune, United States District Court, Central
District of California, #ED CV 98-215-VAP(E) J
APPENDIX K_ Declaration of Janet Bourque, Dated
March 6, 1999, HC Exhibit Y, Myers v. Terhune,
United States District Court, Central District of
California, #ED CV 98-215-VAP(E) ae
APPENDIX L Declaration of Alfred Bourque, Dated
March 6, 1999, HC Exhibit X, Myers v. Terhune,
United States District Court, Central District of
California, #ED CV 98-215-VAP(E) L
APPENDIX M Order Denying Petition for Review, HC
Exhibit W, Filed September 3, 1991, People v.
Myers, California Supreme Court, #8062347 M
APPENDIX N Letter from the California Supreme Court
in People v.- Myers, California Supreme Court,
#5062347, requesting Informal Response, Dated
June 27, 1997, HC Exhibit T, Myers v. Terhune,
APPENDIX O Opinion of the California Court of Appeal
for the Fourth Appellate District, Division Two,
Filed May 21, 1997, People v. Myers, E016578, and
In re Myers, E020323, HC Exhibit S, Myers v.
Terhune, United States District Court, Central
District of California, 4ED CV 98-215-VAP(E) O
vi
TABLE OF AUTHORITIES
CASES
Austin v. Bell, 126 F.3d 843 (6" Cir. 1997) oo... ccc... 23
Baylor v. Estelle, 94 F.3d 1321 (9" Cir. 1996).................... 19
Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996)............ 18
Brown v. Myers, 137 F.3d 1154 (9 Cir. 1998)................... 19
Foster v. Lockhart, 9 F.3d 722 (8" Cir. 1993) ....cccccccssc....... 22
Hall v. Washington, 106 F.3d 742 (7 Cir. 1997)................ 18
Hart v. Gomez, 174 F.3d 1067 (9 Cir. 1999)..................... 19
Henderson vy. Sargent, 926 F.2d 706, amended, 939
FRO Cn WR 22
Holman v. Gilmore, 126 F.3d 876 (7 Cir. 1997)............... 24
Jones v. Wood, 114 F.3d 1002 (9 Cir. 1997)................ 16, 19
Lawrence v. Armontrout, 900 F.2d 127 (8th
cana pO TOL CLR OT 22
Lee v. Kemna,_ _ US. __
[2002 U.S. Lexis 494] (2002) o...eocccccccccesseeseeec.-..... 24
Lewis v. Mazurkiewicz, 915 F.2d 106 (3d Cir. 1990)........... 18
Lockhart v. Fretwell, 506 U.S. 364 [122 L.Ed.2d
180, 113 S.Ct. 838] (1993) onc cccccccccceecseeeoeecee-.... 24
Lord v. Wood, 184 F.3d 1083 (9™ Cir. 1999)... 19
Miller v. Anderson, 255 F.3d 455 (7 Cir. 2001)................. 22
Murray v. Carrier, 477 U.S. 478 [91 L.Ed.2d 397,
NPR DLR SU 24
Owens v. Dormire, 198 F.3d 679 (8 Cir. 1999)................. 23
Phillips v. Woodward, 267 F.3d 966, 976-977 (9"
Ce Seiennihibuaetee 19
Sanders v. Ratelle, 21 F.3d 1446 io ee 20
Schell v. Witek, 181 F.3d 1094 (9" Cir. 1999)... 19
Strickland v. Washington, 466 U.S. 668
vii
United States v. DeCoster, 487 F.2d 1197 (D.C. Cir.
es _ EE SAO TT OT Te 22
United States v. Loughery, 908 F.2d 1014 (D.C. Cir
de IE ELE Tae a Re 16
United States v. Mojica, 984 F.2d 1426 (7" Cir.
agg RE Eee SRI STO He 16
United States v. Shetterly, 971 F.2d 67 (7th
Ue PEE ee ee ee 18
Washington v. Smith, 219 F.3d 620 (7™ Cir. 2000).............. 23
Williams v. Washington, 59 F.3d 673 (7th Cir. a 18
Constitution
NIL OE Bea SE aa
Statutes
California Penal Code section 187 ..........cccccceccesoceoceooooees....... 2
California Penal Code section 190.2 .0.0....cccccecccccceoccoeooeoe...... 2
California Penal Code section 12022.5.....-cccccccccccoccoeooe-....... 2
Treatises
ABA Standards for Criminal Justice Prosecution
Function and Defense Function (3 ed.
AEE ne ie ee TD 16-17
Bailey, Investigation and Preparation of Criminal
I a 17
Wells, Validating The Credibility Of A Criminal
Defense Witness, (August 1966) The Legal
RET RSet ae ea 18
l
Petitioner, Alan Richard Myers, respectfully prays that
a writ of certiorari issue to review the judgment of the United
States Court of Appeals for the Ninth Circuit that affirmed the
judgment of the United States District Court for the Central
District of California that denied his habeas petition.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit, Myers v. Terhune, case number 00-56505,
appears at Appendix C to the petition and is unpublished.
The United States District Court’s judgment of
dismissal and order adopting the findings and
recommendation of the United States magistrate judge, Myers
v. Terhune, case number ED CV98-215-VAP(E), appear at
Appendixes D and E, respectively, and are unpublished.
The report and recommendations of the United States
District Court magistrate judge, Myers v. Terhune, case
number ED CV98-215-VAP(E), appear at Appendix F.
The California Supreme Court’s denial of Petitioner's
petition for review, People v. Myers, case number $062347,
appears at Appendix M.
The opinion of the California Court of Appeal, Fourth
Appellate District, Division Two, People v. Myers, case
number E016578, and Jn re Myers, case number E020323,
affirming Petitioner’s conviction and sentence of life without
the possibility of paroles, appears at Appendix O.
2
JURISDICTIONAL STATEMENT
The United States Court of Appeals for the Ninth
Circuit affirmed the decision of the United States District
Court for the Central District of California on September 25,
2001. (App. C.) A petition for rehearing was timely filed.
The United States Court of Appeals for the Ninth Circuit
denied Petitioner’s petition for rehearing and rehearing en
banc on November 6, 2001. (App. B.) The instant Petition
for Writ of Certiorari is filed within 90 days of that order.
CONSTITUTIONAL PROVISIONS
The Sixth Amendment to the United States
Constitution provides:
In all criminal prosecutions, the
accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State
and district wherein the crime shall have been -
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defense.
STATEMENT OF THE CASE
On October 1, 1993, petitioner was indicted in the
California Superior Court for Riverside County for murder
(Pen. Code’, § 187) with allegations that he personally used a
firearm and that he intentionally killed the victim while lying
in wait, within the meaning of sections 12022.5, subdivision
(a), and 190.2, subdivision (a)(15), respectively. (CT? A-C.)
1 Hereinafter, all references are to the Penal Code unless otherwise
noted.
’ CT refers to the clerk’s transcript.
3
The People elected not to seek the death penalty. (CT
5, 87-89.) The first trial resulted in a hung jury and a mistrial
was declared. (CT 81.) On July 8, 1994, retained counsel
was relieved as attorney of record and the public defender was
appointed. (CT 82-85.) The second trial commenced on
December 8, 1994, and consumed 22 days in trial. (CT 98,
100-106, 119-145, 150, 157.) On January 30, 1995, after
deliberating for two days, the jury found petitioner guilty of
first degree murder (§ 187) and found true the charged
allegations. (CT 148-157.) (CT A-C.)
On February 27, 1995, the public defender was
relieved and new retained counsel substituted. (CT 218-219.)
On June 9 and 12, 1995, petitioner's motion for new trial was
heard. Petitioner alleged (1) that the prosecution intentionally
suppressed evidence, (2) that he was denied his Sixth
Amendment right to the effective assistance of counsel at
trial, (3) and that there was newly discovered material
evidence of his innocence. The motion was denied and
petitioner was sentenced to state prison for life without the
possibility of parole consecutive to a four year sentence for
the firearm use allegation. (CT 432-433, 443-445.)
Petitioner appealed to the California Court of Appeal,
Fourth Appellate District, Division Two (People v. Myers,
E016578). On October 31, 1996, petitioner filed a petition for
writ of habeas corpus in the Riverside County Superior Court
in In re Myers, CR 51809, alleging substantial additional
newly discovered evidence to support the claims (1) that the
prosecution intentionally suppressed evidence, (2) that newly
discovered evidence undermined the prosecution’s entire case
and pointed clearly to petitioner’s innocence, and (3) that
petitioner was denied his Sixth Amendment right to the
effective assistance of counsel at trial.
The Riverside County Superior Court issued an order
to show cause to the District Attorney of Riverside County.
On March 25, 1997, after further briefing by both sides, the
4
court denied the petition. Immediately thereafter, a habeas
petition was filed in the California Court of Appeal, Fourth
Appellate District, Division Two (Jn re Myers, E020323),
with the same allegations that had been raised below.
Petitioner’s request to consolidate the petition with his appeal
was granted. The appellate court’s opinion was filed on May
21, 1997, affirming his conviction and denying his petition.
(App. O.)
Petitioner sought review in the California Supreme
Court, People v. Myers and In re Myers, S062347. On
September 3, 1997, the Court denied petitioner’s petition for
review. (App. M.)
On September 4, 1998, Petitioner filed a petition for
writ of habeas corpus in the United States District Court,
Central District of California (Myers v. Terhune, EDCV 98-
215.) The petition contended that petitioner was denied his
Sixth Amendment right to the effective assistance of counsel
at trial.
On December 6, 1999, an evidentiary hearing was
heard and five witnesses testified. (App. F, G.) On June 28,
2000, the Magistrate Judge’s Report and Recommendation
was filed and recommended denial of the petition. (App. F.)
Petitioner’s Objections were filed. On July 25, 2000, the
court adopted the Recommendations and denied Petitioner’s
petition. (App. E, F.) Petitioner appealed.
On September 25, 2001, the United States Court of
Appeal for the Ninth Circuit affirmed the District Court’s
decision (Myers v. Terhune, 00-56505.) (App. C) On
November 6, 2001, the Ninth Circuit denied petitioner’
petition for rehearing and rehearing en banc. (App. A, B.)
5
REASON WHY THIS PETITION SHOULD BE
GRANTED
THE NINTH CIRCUIT TRIVIALIZED
PETITITIONER’S CLAIMS AND FAILED TO
FOLLOW THAT COURT’S PRECEDENT AS WELL
AS THE PRECEDENT OF OTHER CIRCUITS THAT
THE SIXTH AMENDMENT REQUIRES COUNSEL,
TO CONDUCT REASONABLE AND APPROPRIATE
INVESTIGATIONS IN LIGHT OF THE
CIRCUMSTANCES OF EACH CASE AND THE
DEFENSE
Review is necessary because the United States Court
of Appeal for the Ninth Circuit has entered a decision in
conflict with the decisions of that Court as well as other
United States court of appeals and has so far departed from
the accepted and usual course of judicial proceedings as to
call for an exercise of this Court’s supervisory power.
A. BACKGROUND
Petitioner, a building inspector, bricklayer, and father
of two young boys, is serving a life sentence without the
possibility of parole for a murder he could not have
committed. (RT° 553, 595, 1989-1990.) At trial, it was
conceded that at 9:50 p.m. he was 65 miles from the crime
scene. His alibi was confirmed by the family he was living
with as well as the telephone records for their residence that
3 “CT” and “RT” refer to the Clerk’s Transcript and Reporter’s
Transcript on petitioner’s state appeal. Appendix G refers to the
Reporter’s Transcript of the district court evidentiary hearing that has been
lodged herewith. The exhibits from petitioner’s state trial are noted simply
as exhibits. The exhibits introduced at petitioner’s motion in state court
for new trial are noted as NT exhibits. The exhibits accompanying
petitioner’s habeas petition in the federal district court are noted as HC
exhibits. The exhibits introduced into the district court evidentiary hearing
are noted as DC exhibits.
6
conclusively verified that he had been in the residence at 9:50
p.m. when he placed a telephone call to his wife’s residence.
(RT 995, App. G 11-14, DC exhs. 2-3, App. J-L, Exhibit 80,
Chans 56-59.) The victim was shot outside in a parking lot
behind the victim’s business 65 miles away. (RT 87-91, 161,
1090-1098, 1230, App. J.) The state’s theory, unsupported by
any direct evidence, was that the shots that killed the victim
were fired between 8:05 p.m. and 8:45 p.m., a time when
petitioner’s alibi was not as well established. (RT 2351-
2352.) After the verdict was in, two witnesses were
discovered that heard gunshots at 9:30 p.m., a time when
petitioner could not have been present. (CT 381, App. G 47-
49, RT 2471-2473, 2477, 2480-2482, 2491-2493, 2496, 2499,
2503-2507, DC exh. 4.) One of the witnesses was an
employee of an automobile agency to the immediate west of
the crime scene. (RT 2471-2473, 2480-2481.) The other
witness supervised the cleaning crews of the automobile
agencies both to the north and west of the crime scene. (NT
exh. A, RT 2488-2490.) One of the witnesses was located by
the simple straightforward expedient of subpoenaing the
employee records of the automobile agency to the immediate
west of the crime scene. (CT 381, App. G 47-49.)
During state post verdict proceedings, it was
established that defense counsel made no effort to look for
witnesses to the sound of gunfire at the automobile agency
west of the crime scene. He made no attempt to contact the
cleaning crews that cleaned the auto dealerships to the
immediate west and north of the crime scene. He made no
attempt to subpoena the employee records of any of the
businesses surrounding the crime scene to insure that he had
contacted all possible witnesses to the sound of, or the
absence of the sound of, gunfire. He had not even thought of
issuing a subpoena for the employee records. He did not
know whether he had talked to all of the adjoining businesses’
employees that had been on duty on the night of the homicide.
7
And, he never even went to the dealership to the west of the
crime scene. He never talked to Mr. Enyart, who supervised
the cleaning crews at the adjoining dealerships, who had been
identified in the discovery defense counsel had been provided,
and had heard two gunshots fired at 9:30 p.m., as he testified
at the evidentiary hearing in the district court. Defense
counsel explained that he had attempted to show that the
homicide occurred later in the evening, because it would
conclusively show that petitioner was some 65 miles away at
9:30 p.m. (CT 384-385, 421, RT 2567-2581, App. G.)
B. READILY AVAILABLE WITNESSES FOUND AFTER
PETITIONER’S TRIAL PROVED THAT HE WAS 65
MILES AWAY WHEN THE SHOTS WERE FIRED
Two witnesses, Messrs. Enyart and Ramos, provided
declarations and testified at the hearing on Petitioner’s motion
for new trial. (CT 411-416, RT 2469-2510.) Mr. Enyart had
a contract to clean three of the four auto-dealerships that were
adjacent to the property occupied by the victim [the Shop],
the scene of the homicide, and the adjoining business [On
Guard, a security firm]. (RT 2489-2490.) The dealership
directly to the north is Frahm Chrysler Plymouth and the
dealership directly across Hamner to the west is Phillips
Mazda Pontiac. (NT exh. A, RT 2488.) Mr. Enyart worked
every night of the year, and on weekdays he began work at
9:00 p.m. (RT 2490, 2502, 2505-2506.) He would not have
been at work as early as 8:10 p.m. (RT 2502.)
At about 9:30 p.m., on the night of the homicide, as
established in his mind by the subsequent police activity at the
scene later that night, Mr. Enyart was outside in the lot at
Frahm Chrysler Plymouth, immediately north of the property
occupied by the Shop and On Guard, and Enyart heard two
gunshots spaced about two seconds apart. (RT 2491-2493,
2496, 2499, 2505-2507.) He had been talking to one of his
employees, but he did not remember which employee. (RT
2493.) Enyart was facing west towards Hamner and the shots
8
seemed to come directly from the south. (RT 2491-2492,
2503.) Enyart had experience with firearms and was
convinced that he heard gunshots. (RT 2492.) Five minutes
after hearing the shots, he noticed that there were some people
out in front of Phillips Mazda Pontiac; the agency was still
open. (RT 2493-2494.) That same night, Enyart discussed
what he heard with four or five salesmen at the Phillps Mazda
Pontiac dealership and asked them if they heard anything.
' One thought he had heard a couple of backfires and another
thought they were gunshots. By the date of the hearing,
Enyart could not recall who the salesmen were. (RT 2493-
2495, 2504-2505.) Around midnight, Enyart observed all the
police activity around the shop and stopped to inquire whether
there was any reason for concern for his employees. (RT
2491-2493, 2506-2507.) The officer that he spoke with
would not tell him what happened and this contact lasted less
than two minutes. (RT 2495, 2506-2507.) Enyart did not
remember whether he mentioned to the officer that he had
heard gunshots. (RT 2503.) Enyart vaguely remembered
being contacted thereafter by someone in law enforcement,
but he could not remember whether it was in person or by
telephone. (RT 2493, 2507-2508.) Enyart expressed that he
had no reason not to share the information with law
enforcement. (RT 2505.) That was the first time in his six-
year experience out there that he had heard gunshots. (RT
2507.) Until he was contacted by defense investigator Danny
Davis in 1995, after Petitioner’s second trial, he had never
connected in his mind the shots that he heard with the killing
that occurred. (RT 2508.)
Mr. Enyart also testified at the December 6, 1999
evidentiary hearing in the district court. Even though four and
one-half years had passed since he testified last and seven
years since the night of the homicide, his testimony remained
substantially unchanged. (App. G 23-39.) Enyart used the
aerial photograph, DC exhibit 4, to point out the locations of
9
The Shop, On Guard, and the surrounding automobile
dealerships. (App. G 23-33.)
The second percipient witness to the sound of gunfire
was Michael Ramos. Mr. Ramos testified that in December
1992, he was employed by Phillips Mazda Pontiac, across the
street from the Shop. (RT 2471-2472.) He worked the 2:00
p.m. to 9:00 p.m. shift, although since it was a commissioned
sales job, his hours were not always reflected on the time
clock. He had worked the night of the homicide. (RT 2471-
2473, 2480-2481.) At about 9:20 p.m. or 9:25 p.m., he went
outside in front of the agency by the fountain to take a smoke
break. (NT exh. A, RT 2472-2474.) They had a client inside,
and Ramos was covering the front of the agency because it
was their policy to remain open as long as they had a client in
the dealership. (RT 2482.) The fountain was on and soft
music was playing in the background. (RT 2479.) Traffic
was very mild. (RT 2480.) He heard two gunshots, separated
by about two seconds. (RT 2472-2473, 2477, 2481-2482.)
There is a 7-Eleven store on the southeast corner of Second
Street and Hamner, southeast of Mr. Ramos’ position. (RT
2474-2475.) Ramos thought the gunshots came from the 7-
Eleven. (RT 2475-2478.) A freeway bank is east of and rises
above the rear of the Shop. (RT 2475-2476.) Ramos
estimated that the back of the Shop was about 200 or 300
yards east of Mr. Ramos’ position. However, the distance
was less; the parking lot in front of Phillips Mazda Pontiac,
the width of Hamner, the parking lot in front of the Shop, and
the length of the Shop were all that separated Ramos from the
back of the Shop. (NT exh. A; RT 2481; DC exhs. 4, 11;
App. G 43.) Ramos remembered leaving the agency that
night at about 10:00 or 10:15 p.m. (RT 2480-2481.) Ramos
had discussed with several people about hearing the shots.
(RT 2477-2479, 2482-2484.) He had served in Vietnam and
was familiar with the sound of gunshots, and he was
convinced that is what he heard. (RT 2477.) The first time
10
Ramos discussed with someone in an official capacity what
he had heard was when he was approached by Investigator
Davis about six weeks prior to Ramos’ appearance at the
motion for new trial. (RT 2478.)*
As detailed in NT exhibit A and described by
Investigator Davis, there were no buildings between the
parking lot behind the shop and Second Street to the south.
(RT 2510-2511.) A wall less than three feet in height is on
the south border of the parking lot behind the shop. (RT
2511, 2540-2541, 2550-2551, 2589.) The Shop is constructed
of tilt-up concrete walls. (RT 2531-2532, 2588.) The On
Guard building is of similar construction (RT 2588-2589) and
is two-stories high (RT 2531).
It is apparent that before law enforcement limited their
investigation to Petitioner, they believed that the homicide
occurred later in the evening than the prosecution’s theory
had been for the trial. After the motion for new trial, defense
efforts led to Patricia and Ray Thomas, at the time of the
homicide and in the following months, they lived across the
street from Debbie Norris, the victim’s estranged wife. They
were interviewed. (HC exhs. A & B, App. K, L.) They
became suspicious by a change in activity at Ms. Norris’
residence after the death of the victim, and Mr. Thomas called
Detective Spidel. (HC exhs. A & B.) On January 4, 1993,
Spidel used the Thomas’ residence to stake out Ms. Norris’
residence. While Spidel was ensconced in the Thomas’
residence, he told Ms. Thomas that the victim had been killed
between 10:00 p.m. and midnight. Spidel said that he
believed the shooter was between five feet, four inches and
five feet, six inches tall, because of the angle of the bullet’s
4 Despite substantial effort, petitioner was unable to locate Mr.
Ramos for the December 6, 1999, evidentiary hearing in federal district
court. (APP. G 48-49.)
11
entry. (HC exh. A.)° (The victim was six feet, three inches
tall (RT 324) and petitioner is five feet, ten inches tall (CT
435).)
C. EXPERT TESTIMONY AT THE EVIDENTIARY HEARING
AFFIRMED COUNSEL’S DUTY TO IDENTIFY AND
INTERVIEW ALL POTENTIAL WITNESSES
Attorney Edward Rucker testified at the December 6,
1999, hearing. He is a graduate of Berkeley’s Bolt-Hall with
over 30 years experience as a criminal trial attorney, the first
14 years spent in the Los Angeles Public Defender’s office
and his last position there was head deputy. He is a California
State Bar licensed criminal law specialist and has tried
approximately 50 homicide cases, ten of them were capital
cases. He has also practiced before the California Supreme
Court and has taken federal capital habeas appointments. He
has been a regular lecturer before public defender’s
associations, bar associations, district attorney associations,
and at the judge’s college. In 1992, he was awarded by the
Los Angeles Bar as the best trial lawyer of the year. He has
testified as an expert on criminal law in both California and
federal courts. He has also testified before California
Legislative Committees as well as a committed from the
American Bar Association. (App. G 52-56, I.)
Mr. Rucker testified that the prevailing professional
norms at the time of Petitioner’s trial in 1994 had not
undergone any significant changes relevant to the issues in
5 At the December 6, 1999 evidentiary hearing in federal district
court, petitioner called Ms. Thomas to testify, but on objection of
respondent, the magistrate judge found that her proffered testimony was
_ irrelevant to the issue of whether petitioner had been denied the effective
assistance of counsel, but the court acknowledge that her testimony would
be relevant on retrial to the issue of petitioner’s guilt or innocence. (APP.
G 20-24.) However, for the reason that her proffered testimony cast doubt
on petitioner’s guilt, her testimony was also relevant to the prejudice prong
of petitioner’s ineffective assistance of counsel claim.
12
this case. Mr. Rucker’s opinion is based on his personal
experience, conversations that he has had with colleagues,
defense bar lectures, and other written materials. (App. G
58.)
Mr. Rucker described as “very, very grave” the
responsibility a defense attorney has in representing someone
charged with murder, especially where a special circumstance
has been alleged. The defendant literally places his life in his
attorney’s hands. (App. G 59.)
Mr. Rucker explained that it is not wise for defense
counsel to rely on the investigative efforts of law
enforcement. Once they believe they have identified the
perpetrator, they make no effort to look for evidence
inconsistent with their theory. They may be pursuing a line of
investigation that has nothing at all to do with the defense
theory. Secondly, the direction of law enforcement interviews
is only based on the issues they are interested in. As an
example, to ask someone if they heard a gunshot at any time
that evening is one way to phrase the question. By contrast,
to ask if someone was in a position to have heard a gunshot at
a particular time is a question that may be just as important
for the defense. (App. G 59-61.)
Mr. Rucker explained that it was not wise to rely on
an employer to determine if any of his employees had heard
anything. You do not know how committed or conscientious
that civilian would be in approaching the task. Further, the
employer has inconsistent interests in obligating himself to
the inconvenience and possible cost of loosing the employee’s
time for several work days while the employee is caught up in
the trial. (App. G 61-62, 95.) In Mr. Rucker’s experience,
people are universally reluctant to “get involved” in criminal
cases, even in capital cases were the stakes are the highest.
(App. G 72, 95.)
Mr. Rucker explained that if it appears that it is
possible that someone may have relevant, probative
13
information about the case, you have to talk to him to see if it
Supports your theory. It is just as important to find
information that does not support your theory, because you do
not want to put on a defense where rebuttal evidence will
destroy it. (App. G 62.)
Mr. Rucker explained that homicide cases are too
serious to not have an experienced criminal investigator that
is familiar with crime scene evidence, police techniques, and
the use of the subpoena and subpoena duces tecum. A
defense attorney is always better served by using an
experienced criminal investigator than by relying on himself
to do the investigation. It is a time-consuming, difficult task
that would detract from the attorney’s other responsibilities.
Additionally, to get someone to talk is a skill. It is a very
common reaction for people not to want to become involved.
People do not contact investigators or counsel and volunteer
information. Thus, skill is requiréd to get people to cooperate
and sometimes just being a lawyer provides an additional
barrier to that cooperation. Also a skilled investigator will be
more sensitive to detect when new avenues of investigation
surface during the interview. (App. G 62-64.)
Mr. Rucker explained that a thorough investigation is
essential to see if the evidence supports the defense theory as
well as to learn if there is contradicting evidence. (App. G
65-66, 86-88.)
In Mr. Rucker’s opinion, defense counsel’s
preparation in the instant case was willfully inadequate and
fell below the professional norms prevailing in 1993 and
1994. (App. G 68, 75.) The prosecution’s case rested
exclusively on circumstantial evidence; there was no witness
to the homicide and there was no physical evidence to tie
Petitioner to the homicide. Motive and opportunity were the
primary prosecution theory. Defense counsel presented an
alibi defense; probably the most time-honored defense
available. That defense required that the time of the homicide
14
be established and Petitioner’s whereabouts at that time be
established. The prosecution had conceded that the homicide
must have occurred during a very narrow period of time. The
discovery materials provided counsel indicated that the
shooting took place outside in a relatively open area, there
were commercial businesses that surrounded the crime scene,
these businesses were open, there was a cleaning crew
identified working at one of the dealerships, and a visit to the
scene would have made all of this most apparent. (App. G
68-70.) The fact that a firearm had been employed indicated
that witnesses to the sound of a gunshot could establish the
time of the assault, particularly since it occurred outside. One
merely had to go to the adjacent businesses to determine
which employees were present that evening and interview
them. This would have produced Messrs. Enyart and Ramos.
With or without an investigator, the task was merely to get the
employee list from the adjoining businesses, either voluntarily
or-by subpoena. (App. G 71.) The case required such a
simple investigation, “that its hornbook preparation to have
done this and it could have been done easily with very little
expenditure of energy, and it should have been done
promptly. And it just was not. Mr. Rucker could not
understand how one could possibly represent someone in this
type of case without having searched for witnesses to place
the time of the homicide at a time when Petitioner was not
there. (App. G 75.) It made no difference how otherwise
excellent defense counsel’s performance may have been; his
failure to adequately investigate the alibi defense rendered his
overall performance below professional norms. (App. G 82.)
Defense counsel’s task was to drive to the scene, see
what businesses were adjacent to the scene, contact those
businesses to see when they were open, and request or
subpoena, if necessary, their employee lists. There was no
imaginable strategic reason for counsel to fail to take those
steps. (App. G 75-76.) In fact, the magistrate judge remarked
15
that defense counsel had not made a reasoned decision not to
subpoena the records of the adjoining businesses, he did not
even think of it. (App. G 117-118.)
In Mr. Rucker’s opinion, the investigation, if
adequately pursued, would have led to Mr. Enyart whose
business cleaned the automobile agencies. A subpoena would
have borne fruit. Merely visiting the scene to see who is
around on a routine basis is not as complete, it is more time
consuming, and unnecessary. Defense counsel admitted that
he had not subpoenaed the business records of the adjoining
businesses. (App. G 72-73.)
In Mr. Rucker’s opinion, defense counsel could not
rest upon the efforts of his predecessor during the first trial.
In fact, defense counsel learned that the alibi defense in the
first trial had been weakened by the less than expected
credibility of A.A. member Mr. Barbarino. This information
put defense counsel on further notice that the alibi defense
needed to be augmented with further support. (App. G 73-
74.)
Mr. Rucker stated that just because the victim's
money was not taken, one could not rule out robbery as a
motive for the killing. It is not unheard of for a perpetrator to
become frightened at the consequences of his actions and to
flee without taking any property. (App. G 83.)
Mr. Barry Levin, another very experienced criminal
trial attorney, provided a declaration (HC exh. AA)
substantially echoing Mr. Rucker’s opinion, but Mr. Levin
was not called to testify at the December 6, 1999, hearing.
16
D. THE NINTH CIRCUIT TRIVIALIZED
PETITIONER’S CLAIM AND FAILED TO FOLLOW
PRECEDENT FROM ITS OWN CIRCUIT AS WELL AS
THE PRECEDENT OF OTHER CIRCUITS IN
INTERPRETING WHETHER THE STATE’S COURT
APPLICATION OF STRICKLAND WAS REASONABLE
The Ninth Circuit Court of Appeal, in a mere three-
paragraph assessment of the entirety of petitioner’s claims,
concluded “counsel certainly did quite enough under the
circumstances to bring his actions within the broad range of
conduct that we consider reasonable professional assistance.”
(App. C.) However, Strickland v. Washington, 466 U.S. 668
[80 L.Ed.2d 674, 104 S.Ct. 2052] (1984) means more than
merely putting in an effort, even a substantial effort, if that
effort is not reasonable under prevailing norms of practice.
(United States v. Mojica, 984 F.2d 1426, 1452 (7" Cir. 1993)
(quoting Strickland, 466 U.S. at pp. 687-691); Jones v. Wood,
114 F.3d 1002, 1009 (9™ Cir. 1997).) The American Bar
Association, Standards for Criminal Justice, may inform what
is reasonable under “prevailing norms of practice.” (United
States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990).)
They are guides, but they should not distract counsel from the
overriding mission of vigorous advocacy of the defendant’s
cause. (Strickland v. Washington, supra, at p. 689.)
The ABA Standards instruct: “[I]ncluded in defense
counsel’s obligations to the client is the responsibility of
furthering the defendant’s interest to the fullest extent that the
law and the applicable standards of professional conduct
permit.” (ABA Standards for Criminal Justice Prosecution
Function and Defense Function, Third Addition (3™ ed.1993),
§ 4-1.2, p. 122 [hereinafter, ABA Standards].) A lawyer
cannot be half-hearted in the application of his or her energies
to a case. (/d. at pp. 122-123.) “Once a case has been
undertaken, a lawyer is obliged not to omit any essential
lawful and ethical step in the defense, without regard to
17
compensation or the nature of the appointment.” (/d. at p.
123.) “Effective investigation by the lawyer has an important
bearing on competent representation at trial, for without
adequate investigation the lawyer is not in a position to make
the best use of such mechanisms as cross-examination or
impeachment of adverse witnesses at trial or to conduct plea
discussions effectively.” (Jd. at p. 183.) “[W]ithout careful
preparation, the lawyer cannot fulfill the advocate’s role.”
(Ibid.) “Defense counsel should conduct a prompt
investigation of the circumstances of the case and explore all
avenues [emphasis added] leading to facts relevant to the
merits of the case ....” (ABA Standards, supra, Standard 4-
4.1 (a), Duty to Investigate at p. 181.)
The defense effort required must be equal to the tnthe.
The ABA Standards instruct:
Considerable ingenuity may be
required to locate persons who observed the
criminal act charged or who have information
concerning it. After they are located, their
cooperation must be secured. It may be
necessary to approach a witness several times.
to raise new questions stemming from facts
learned from others. (ABA Standards, supra,
Standard 4-4.1 (a), Duty to Investigate at p.
182.)
Prevailing norms of practice do not permit defense
counsel to rely on law enforcement’s investigation for
flushing out defense issues (Bailey, Investigation and
Preparation of Criminal Cases (2d ed. 1985) pp. 3, 642-643),
particularly, as here, where no one in law enforcement
personally spoke with each of the neighboring businesses’
employees. The defense investigator should speak to
everyone in the neighboring area that had a chance to observe
(or hear) the events. (/d. at pp. 34, 642-643.)
4
18
“Interviewing of all witnesses is crucial because it
may produce valuable information which may have been
omitted in the original statements taken from a subjective
standpoint.” (Wells, Validating The Credibility Of A
Criminal Defense Witness, (August 1966) The Legal
Investigator, at p. 32.) “It is important to recognize that not
all of the investigative agency’s personnel with knowledge of
the case will be included in the discovery provided by the
state. Only witnesses who are helpful to the prosecution will
be provided. These same witnesses may be of vital interest to
the defense investigation to determine any potential
inconsistencies from earlier statements and to assess the
witnesses’ capacity for recollection of events, and veracity in
delivering an opinion of what transpired.” (Jbid.) It is clear
that these norms were not followed here.
A defense attorney must look into readily available
sources of evidence. (Hall v. Washington, 106 F.3d 742, 749
(7" Cir. 1997).) When the issue is guilt, defense counsel’s
duty of investigation is fa’rly well defined; counsel must
interview potential witnesses likely to provide material
evidence favorable to the defense. (Williams v. Washington,
59 F.3d 673, 680-681 (7th Cir.1995); United States v.
Shetterly, 971 F.2d 67,' 74 (7th Cir.1992); Sullivan v.
Fairman, 819 F.2d 1382, 1391-1392 (7th Cir.1987).
The right to counsel requires a reasoned judgment as
to the amount of investigation the particular circumstances of
a given case require. An attorney must have reasonable
grounds for not investigating every potential avenue for a
viable defense. (Lewis v. Mazurkiewicz, 915 F.2d 106, 114
(3d Cir. 1990); Berryman v. Morton, 100 F.3d 1089, 1101 (3d
Cir. 1996).) “In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” (Berryman v. Morton,
19
supra, 100 F.3d at p. 1101 (quoting Strickland, 466 U.S. at
pp. 690-691).)
The Ninth Circuit has repeatedly recognized that the
unique circumstances of each case dictate the requisite
avenues for a thorough defense investigation. (See Phillips v.
Woodward, 267 F.3d 966, 976-977 (9 Cir. 2001) [failure to
develop facts that would mitigate client’s involvement in the
shooting and thereby reduce the likelihood of the jury opting
for the death penalty even where it would not have changed
the outcome as to his guilt] Schell v. Witek, 181 F.3d 1094,
1103-1104 (9" Cir. 1999) [failure to consult a fingerprint
expert constituted ineffective assistance of counsel where a
single fingerprint tied him to the crime]; Hart v. Gomez, 174
F.3d 1067 (9" Cir. 1999) [failure to investigate and introduce
evidence central to Petitioner’s defense that corroborated
defense witnesses]; Jones v. Wood, supra, 114 F.3d 1002
[failure to investigate third party culpability and test hairs
found on victim’s body where defendant had the opportunity
but no motive for the homicide’); Baylor v. Estelle, 94 F.3d
1321 (9" Cir. 1996) [failure to follow-up on a criminalist’s
report that semen sample taken might not have come from the
defendant even where the defendant had confessed, although
later recanted alleging the confession was coerced]; Lord v.
Wood, 184 F.3d 1083 (9™ Cir. 1999) [failure to investigate
evidence that victim was alive day after prosecution’s theory
for death]; Brown v. Myers,137 F.3d 1154 (9" Cir. 1998)
[failure to investigate alibi claim and corroborate the
defendant’s testimony].)
6 The words of the Court in Jones v. Wood, supra, 207 F.3d 557,
provide close parallels to petitioner’s case: “No one but the architect of
this tragedy knows with absolute certainty who killed [the victim].
[Petitioner] has tendered a credible theory, based on admissible evidence,
that someone else took [the victim’s] life. He has shown that his attorney
failed to investigate this theory before the murder trial. Thus, his original
conviction cannot stand.” (/d. at p. 564.)
20
An additional survey of cases involving a lack of
reasonable investigation is found in Sanders v. Ratelle, 21
F.3d 1446, 1456-1457 (9" Cir. 1994).
Although there is a “strong
presumption that counsel’s conduct falls
within the wide range of reasonable
professional assistance,” and “[j]udicial
scrutiny of counsel’s performance must be
highly deferential,” Strickland, 466 U.S. at
689, 104 S.Ct. at 2055, counsel must, at a
minimum, conduct a reasonable investigation
enabling him to make informed decisions
about how best to represent his client. Jd. at
691 (“Counsel has a duty to make reasonable
investigations or to make a _ reasonable
decision that makes particular investigations
unnecessary.”). Thus, we have found counsel
to be ineffective where he neither conducted a
reasonable investigation nor made a showing
of strategic reasons for failing to do so. See
Hendricks v. Vasquez, 974 F.2d 1099, 1109
(9th Cir.1992) (vacating the judgment of the
district court where it is not possible to
“determine if counsel’s decision was a
strategic one, and, if so, whether the decision
was a sufficiently informed one”); U.S. v.
Burrows, 872 F.2d 915, 918 (9th Cir.1989)
(holding counsel’s conduct deficient where he
failed to investigate a possibility of a mental
illness defense and the “district court’s
assumptions that the attorney must have
considered an insanity defense and might have
rejected it for strategic reasons appear not to
have been based on the record”); Deutscher v.
Whitley, 884 F.2d 1152, 1160 (9th Cir.1989)
21
(holding that counsel did not make a strategic
decision where the defense was based on
petitioner’s psychiatric problems, yet counsel
failed to “even consider investigating evidence
which would have bolstered that defense’),
vacated on other grounds, 113 S.Ct. 367
(1992); Evans v. Lewis, 855 F.2d 631, 637
(9th Cir.1988) (holding that a failure to
investigate a possibility of mental impairment
“cannot be construed as a trial tactic” where
he did not even bother to view relevant
documents that were available).
Other Circuits agree that the failure to
conduct a reasonable investigation constitutes
deficient performance. The Third Circuit has
held that “ineffectiveness is generally clear in
the context of complete failure to investigate
because counsel can hardly be said to have
made a strategic choice when s/he [sic] has
not yet obtained the facts on which such a
decision could be made.” [Emphasis in orig.]
See U.S. v. Gray, 878 F.2d 702, 711 (3d
Cir.1989). A lawyer has a duty to “investigate
what information ... potential eye-witnesses
possess[ ], even if he later decides not to put
them on the stand.” Jd. at 712. See also
Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th
Cir.1986) (“Neglect even to interview
available witnesses to a crime simply cannot
be ascribed to trial strategy and tactics.”); Birt
v. Montgomery, 709 F.2d 690, 701 (7th
Cir.1983), cert. denied, 469 U.S. 874, 105
S.Ct. 232, 83 L.Ed.2d 161 (1984) (“Essential
to effective representation .. is the
independent duty to investigate and prepare.”).
22
(Sanders v. Ratelle, supra, 21 F.3d at pp.
1456-1457.)
Other Circuits provide further illustrations. The
decision to interview a potential witness is not a decision
related to trial strategy. Rather, it is a decision related to
adequate preparation for trial. (Henderson v. Sargent, 926
F.2d 706, amended, 939 F.2d 586 (8" Cir. 1991), cert. denied,
112 S.Ct. 915 (1992).) In Henderson the Court affirmed the
grant of a writ of habeas corpus for failure of trial counsel to
pursue the available theory that the killing was committed by
someone other than petitioner. (Jbid.) Counsel has “a duty ...
to investigate all witnesses who allegedly possessed
knowledge concerning [the defendant’s] guilt or innocence.”
(Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.1990);
accord Henderson v. Sargent, supra, 926 F.2d at p. 711.) In
Foster v. Lockhart, 9 F.3d 722 (8 Cir. 1993) the court
affirmed the grant of a habeas writ where trial counsel failed
to investigate that his client was impotent where the charge
was rape. (/bid; accord Miller v. Anderson, 255 F.3d 455 (7
Cir. 2001) [failure to produce expert testimony that would
have established that hair found on the victim was not.
petitioner’s].) In the Circuit for the District of Columbia, the
Court in United States \ DeCoster, 487 F.2d 1197, 1203-
1204 (D.C. Cir. 1973) observed:
Counsel must conduct appropriate
investigations, both factual and legal, to
determine what matters of defense can be
developed. The Supreme Court has noted that
the adversary system requires that “all
available defenses are raised” so that the
government is put to its proof. This means
that in most cases a defense attorney, or his
agent, should interview not only his own
witnesses but also those that the government
intends to call, when they are accessible. The
23
investigation should always include efforts to
secure information in the possession of the
prosecution and law enforcement authorities.
And, of course, the duty to investigate also
requires adequate legal research. [Footnotes
omitted.] (United States v. DeCoster, 487
F.2d 1197, 1203-1204 (D.C. Cir. 1973),
quoting United States v. Ash, 413 U.S. 300
[37 L.Ed.2d 619, 93 S.Ct. 2568].)
Failure to conduct a reasonable investigation constitutes
deficient performance. (See Austin v. Bell, 126 F.3d 843, 848
(6" Cir. 1997); see also, Tennessee v. Burns, 6 S.W.3d 453,
460-463 (Tenn. 1999) [ineffective assistance of counsel for
failure to investigate that an alternate suspect or suspects had
committed the crimes particularly where the defense had only
to raise a reasonable doubt as to the defendant’s guilt and the
prosecution’s corroborating evidence was scant]; Owens v.
Dormire, 198 F.3d 679, 682 (8" Cir. 1999) [failure to read a
co-defendant’s trial transcripts may constitute deficient
performance under Strickland].)
In Washington v. Smith, 219 F.3d 620 (7" Cir. 2000)
the Court addressed trial counsel’s failure to timely subpoena
an alibi witness or seek the assistance of an investigator to
locate the witness, although the attorney made three attempts
to find her. (/d. at p. 623, 625, 629.) Trial counsel had been
too busy with other matters and apparently gave no thought to
the potential benefits of an investigation. (Jd. at p. 631.) The
Seventh Circuit concluded that this was not a reasonable
tactic and found the state court’s resolution of the issue an
unreasonable application of clearly established Federal law.
(Id. at pp. 629-632.)
Yet, the Ninth Circuit Court’s decision ignores the
obvious parallels between petitioner’s case and the above
cited authority of the Ninth Circuit and numerous other
reviewing courts that the unique circumstances of each case
24
dictate the requisite avenues for a defense investigation to
satisfy the vigorous advocacy of the defendant’s cause
required by Strickland. (Strickland v. Washington, supra, at
p. 689.) In the instant case, trial counsel was burdened by a
substantial caseload of clients facing the most serious of
offenses and with inadequate investigative resources. Trial
counsel gave no thought to the potential benefits of
investigating for witnesses at the automobile agency west of
the scene of the homicide or for obtaining the names of all the
employees at the adjoining businesses that were on duty on
the night of the homicide, even though their identity could
have been so efficiently and inexpensively obtained by the
mere issuance of a subpoena. Counsel did not even interview
the operator of the cleaning crew or his staff that had been on
duty at the adjoining dealerships on the night of the homicide,
even though he had been identified in the discovery counsel
had been provided.
The criminal defendant’s right to effective assistance
of counsel may, in a particular case, be violated by even an
isolated error of counsel if that error is sufficiently egregious
and prejudicial (Murray v. Carrier, 477 U.S. 478, 496 [91
L.Ed.2d 397, 106 S.Ct. 2639] (1986)), as it clearly was here.
The attorney’s unreasonable performance must be deemed to
have rendered the trial unreliable or the proceedings unfair
(Lockhart v. Fretwell, 506 U.S. 364 [122 L.Ed.2d 180, 113
S.Ct. 838] (1993)), again, a standard clearly met here. Taking
all of the proceedings into account, counsel failed to make
“the adversarial testing process work” thereby depriving
petitioner of his Sixth Amendment rights. (Holman v.
Gilmore, 126 F.3d 876, 882 (7" Cir. 1997) (quoting
Strickland 466 U.S. at p. 690).)
Petitioner’s entire trial was focused on resolving when
the fatal shots were fired. The value to the defense of being
able to establish that they were fired when petitioner’s alibi
irrefutably established that he was 65 miles from the crime
25
scene is manifest. (See, e.g., Lee v. Kemna,__—-US. ___
[2002 U.S. Lexis 494] (2002) [“Given the repeated references
to the anticipated alibi witness testimony each day of trial, it
is inconceivable that anyone in the courtroom harbored a
doubt about what the witnesses had traveled from California
to Missouri to say on the stand or why their testimony was
material, indeed indispensable, to the defense”].) The Ninth
Circuit trivialized petitioner’s claims, ignored the precedent
from its own court as well as that from other circuits as
provided in petitioner’s briefs, and failed to meaningfully
review the district court’s and the state court’s findings on
petitioner’s Sixth Amendment claim.
~ CONCLUSION
As the above authority manifests, this is an issue of
frequently recurring interest in state and federal courts with
particular poignancy in the context of an innocent man
spending the rest of his life in prison simply because his trial
counsel failed to adequately investigate his defense. It is
respectfully submitted, that the Court should grant certiorari
to determine whether as a matter of law “appropriate” and
“reasonable” investigations are determined by the
characteristics of each case or, alternatively, to exercise this
Court’s supervisory power and summarily reverse the Ninth
Circuit’s decision with directions that the Court fully address
petitioner’s claims and cited authority.
Dated: January 29, 2002
Respect fy submitted,
Ee : -
Conrad Petermann
Attorney for Petitioner
fn an sO a ara
APPENDIX A
A
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES-APPEALS
Case No ED CV-98-00215-VAP (E)
Date November 21, 2001
Court of Appeals # 00-56505
Title ALAN RICHARD MYERS ~v- CA TERHUNE.
Director, et al
PRESENT HONORABLE VIRGINIA A PHILLIPS. US
DISTRICT JUDGE
Rachel Ingram None Present
Courtroom Deputy Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS
None Present
ATTORNEYS PRESENT FOR DEFENDANTS
None Present
PROCEEDINGS: FILING AND SPREADING
MANDATE OF THE NINTH CIRCUIT
COURT OF APPEALS
IN COURT X_IN CHAMBERS (No hearing necessary
X_ COUNSEL NOTIFIED
The Court ORDERS that the mandate of the Ninth Clrow!t
Court of Appeals
X Affirming __Remanding _ Reversing and Remanding
in part, reversing in part
__ Dismissing Appeal __ Other
is hereby filed and spread upon the minutes of this District
Court
ENTERED ON NOV 27, 2001
Initials of Deputy Clerk (s)
MINUTES FORM 48
APPENDIX B
B
NOT FOR PUBLICATION
FILED
NOV -6 2001
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN RICHARD MYERS
Petitioner-Appellant,
wi
C.A. TERHUNE, Director;
ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,
Respondents-Appellees
No. 00-56505
D.C. No. CV-98-
00215-VAP (E)
ORDER DENYING
PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC
Before: FERNANDEZ, KLEINFELD, and McCKEOWN,
Circuit Judges
The panel has unanimously voted to deny the
appellant’s petition for rehearing. The petition for rehearing
en banc was circulated to the judges of the court, and no judge
requested a vote for en banc consideration.
The petition for rehearing and the petition for
rehearing en banc are DENIED
i
|
|
i
j
SK AAS et A EA A ins PAS Say Dn nich sch MiiadNimnen é vilhniep ape Spcrente tee heaping er
panier nae 5 60 ma
APPENDIX C
C-1
NOT FOR PUBLICATION
FILED
SEP 25 2001
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN RICHARD MYERS No. 00-56505
Petitioner-Appellant,
v. D.C. No. CV-98-
C.A. TERHUNE, Director; 00215-VAP (E)
ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,
Respondents-Appellees MEMORANDUM*
Appeal from the United States District Court
For the Central District of California
Virginia A. Phillips, Magistrate Judge, Presiding
Submitted September 12, 2001**
Pasadena, California
Before: FERNANDEZ, KLEINFELD, and McKEOWN,
Circuit Judges
* This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by Ninth Circuit Rule
36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
C-2
California State prisoner Alan Richard Myers appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition, which challenged his first degree murder
conviction. We affirm.
Myers claims that his trial attorney did not perform a
sufficient investigation and thereby deprived him of his right
to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984). The state courts found to the contrary, but
Myers contends that we should still grant relief because they
applied the law improperly. See 28 U.S.C. § 2254(d);
Williams «. Taylor, 529 U.S. 362, 401-09, 120 S.Ct. 1495,
1518-21, 146 L.Ed. 2d 389 (2000); Nguyen v. Lindsey, 232 F.
3d 1236, 1239-40 (9™ Cir. 2000). We have reviewed the
record and we disagree.
As the state courts and the district court decided,
counsel certainly did quite enough under the circumstances to
bring his actions within the broad range of conduct that we
consider reasonable professional assistance. Strickland, 466
U.S..at 690, 104 S. Ct at 2065. Myers’ suggestion that
counsel could have done more does not change that; a claim
of that kind can almost always be made. See Babbit v.
Calderon, 151 F.3d 1170, 1173-74 (9" Cir. 1998). What
Myers’ attack amounts to is a request that we use the
distorting hindsight that the Supreme Court has warned us
against. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;
Smith v. Stewart, 140 F. 3d 1263, 1268 (9 Cir. 1998);
Siripongs v. Calderon, 35 F. 3d 1308, 1323 (9" Cir. 1994)
(Fernandez, J., dissenting).
AFFIRMED.
l We decline to address other issues raised by Myers, which are not —
within the certificate of appealability granted by the district court. See
United States v. Zuno-Arce, 209 F.3d 1095, 1103 (9 Cir. 2000); Hiivala
v. Wood, 195 F.3d 1098, 1102-03 (9" Cir. 1999).
APPENDIX D
D-1
FILED
CLERK U.S. DISTRICT COURT
JUL 25 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
ENTERED
CLERK U.S. DISTRICT COURT
JUL 28 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
LODGED
CLERK U.S. DISTRICT COURT
JUN 28 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN RICHARD MYERS | os '
se | Ne EDCV-48-40215
Petitioner-Appellamt, | vap@)
v. | JUDOMENT
CA. TERHUNE, Director, | Tin CONSTITUTES
ATTORNEY GENERAL OF NOTICE OF ENTRY
THE STATE OF 7
| AS REQUIRED BY
CALIFORNIA, | FRCP. RULE The)
Pursuant to the Onder Adopting Findings
Conclusions and Recommendstions of Ulned Stun
Magistrate Judge,
D-2
IT IS ACLJUDGED that the Petition is denied and
dismissed with prejudice.
DATED: July 25, 2000.
/s/_Virginia A. Phillips
VIRGINIA A. PHILLIPS -
UNITED STATES DISTRICT JUDGE
APPENDIX E
E-1
FILED
CLERK U.S. DISTRICT COURT
JUL 25 2000
CENTRAL DISTRICT OF CALIFORNIA
RE | DEPUTY
- ENTERED
CLERK U.S. DISTRICT COURT
JUL 28 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
LODGED
CLERK U.S. DISTRICT COURT
JUN 28 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
es a i ie -
ALAN RICHARD MYERS | No. ED CV-98-00215- .
Petitioner-Appellant, | WAP (E)
v. ORDER ADOPTING
FINDINGS,
C.A. TERHUNE, Director, | | CONCLUSIONS AND |
ATTORNEY GENERAL RECOMMENDATIONS
OF THE STATE OF OF UNITED STATES ,
CALIFORNIA, MAGISTRATE JUDGE
Respondents- |
Appellees THIS CONSTITUTES
NOTICE OF ENTRY AS_
REQUIRED BY FRCP,
‘ RULE 77(d)
E-2
Pursuant to 28 U.S.C. § 636, the Court has reviewed
the Petition, all of the records herein and the attached
Report and Recommendation of United States Magistrate
Judge. The Court approves and adopts the Magistrate
Judge’s Report and Recommendation.
IT IS ORDERED that Judgment be entered denying
and dismissing the Petition with prejudice.
IT IS ORDERED that the Clerk serve copies of this
Order, the Magistrate Judge’s Report and Recommendation
and the Judgment herein by United States mail on
Petitioner and counsel for Respondent.
LET JUDMENT BE ENTERED ACCORDINGLY.
DATED: July 25, 2000.
/s/_Virginia A. Phillips
VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE
APPENDIX F
F-]
FILED
CLERK, U.S. DISTRICT COURT
JUN 28 2000
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. ED CV-98-00215-
ALAN RICHARD MYERS
Petitioner, VAP (E)
Vv.
C.A. TERHUNE,
DIRECTOR, CALIFORNIA REPORT AND
DEPARTMENT OF RECOMMENDATION
CORRECTIONS OF UNITED STATES
Respondents. MAGISTRATE JUDGE
This Report and Recommendation is submitted to the
Honorable Virginia A. Phillips, United States District Judge,
pursuant to 28 U.S.C. § 636 and General Order 194 of the
United States District Court for the Central District of
California. é
PROCEEDINGS
On September 4, 1998, Petitioner filed a “Petition for
Writ of Habeas Corpus by a Person in State Custody,” a
“Petition for Writ of Habeas Corpus and Memorandum and
Points and Authorities in Support of the Petition by a Person
in State Custody,” and “Exhibits Accompanying Petition for
Writ of Habeas Corpus, etc.” Respondent filed an Answer on
October 5, 1998. Petitioner filed a Traverse on October 19,
1998.
8 ANE WT brat Tt SG atat Oe WRENS taearaiiny Mca T Sila ain
ie Se OO
motel
SSE tin ate GEG Wesrenva
F-2
On December 17, 1998, Petitioner elected to abandon
“Ground Two” of the Petition. This abandonment leaves as
Petitioner’s sole claim a claim of ineffective assistance of
counsel. See December 17, 1998 Minute Order.'
Petitioner filed a “Trial Brief on March 8, 1999, “First
Supplemental Exhibits, etc.,” on March 16, 1999, and a “First
Amended Trial Brief” on November 1, 1999. Respondent
filed a “Hearing Brief” on November 15, 1999.
The Magistrate Judge conducted an evidentiary hearing on
December 6, 1999. The Magistrate Judge received the
transcript of the evidentiary hearing on December 30, 1999.
BACKGROUND
On December 8, 1992, just before midnight, the body
of Michael (“Norris”) was found lying in parking lot behind
his motorcycle shop in Norco (Reporter’s Transcript (RT.”)
89-91, 99, 116-17, 191-92). Norris fatally had been shot once
in the back of the head (R.T. 318-31, 1089-91). Credit cards
and keys were found on his person (R.T. 101-102, 137, 367-
68).
Norris and Petitioner's wife had been having an affair
(R.T. 572, 1271). Petitioner learned of this affair and told a
friend that Petitioner wanted to confront Norris (R.T. 886-87,
891-92, 1246, 1481-83, 1580-81, 1997-2004, 2014-15).
Norris and Petitioner’s wife speat the night together on
December 5, 1992 (R.T. 601, 605-606). Petitioner placed
several telephone calls to Norris’ residence on December 7,
1992, the day before the murder (R.T. 2045-47). Petitioner, a
' Petitioner subsequently sought to leave to amend the Petition to
reintroduce the previously abandoned Ground Two. The Magistrate Judge
denied the leave by “Memorandum and Order,” filed June 23, 1999. For
the reasons stated in this Memorandum and Order, and notwithstanding
Petitioner's “Objections, etc.,” filed July 6, 1999, this Court should not
permit Petitioner to reintroduce the previously abandoned Ground Two.
F.3
knew Norris’ motorcyche shop was ae Meme ce T a}
2224-25).
Petition:r cummed ¢ gus of ¢ how Gut celld hone
delivered the fecal bullet (RT 1026-27. 1a), Reew aig
the investigataon of Nortre atoning amd twits Peritienene
arrest, Petoner tokd pode the were munder of the pus
(RT. 1472-73) Wier he pokce ented Penmener we being
thas gun to the produce enacnom Perrcecmer omtueils agreed Ser
later called amd camcwind Ge apyeunmmene RT | ee! a
Thre, wither the prodiicer sermmt to her Prersisionnene s smeicdterew other
Mame evenang, Petstnomer aad that ber could to Sind te pun
and that Petstacmer last Mamd weer the gar monetie carer 2”
91D20, 1 SOD 1507) Peniecncmenr citeumeend er Saeed greeiedteed the
potsce with the werved cuméwr set fom te pur nasil hae
fom « piece of paper he had kegs te ie wate ORT heme.
1607) Tike protic auitand Sow thine grime off gegen. tur Peritionee
Chatmmed to hewe Carome ihe payer pee) scrmenine sethemyonne
to the podaces amtaad emgairy (RT law?)
|
F-4
Norris was alive at 7:50 p.m., on December 8, 1992
(R.T. 1255-64). Medical evidence could not pinpoint with
certainty the time of his death (R.T. 335-42, 1097-98, 1894-
1911). Death probably occurred between 8:00 p.m. and
midnight, according to medical evidence (R.T 1098, 1894-
1911). The prosecution theorized the shooting took place
prior to 9:00 p.m., during the time for which Petitioner had no
confirmable alibi (See, e.g., R.T. 2351-52).
Immediately after the murder, the police contacted
businesses surrounding the motorcycle shop and eventually
interviewed over 100 witnesses (R.T. 147, 154, 1655-57,
2519-20, 2520, 2535-36, 2538, 2581-82). The police did not
~ locate anyone who said he or she had heard a shot on the night
in question (R.T. 1657, 2520). Not even a security company
employee, stationed only about 70 feet from where the
shooting occurred, heard any shot that night (R.T. 442-47,
1657, 2533). Among the interviewed witnesses who denied
having heard anything unusual on the night in question was
Raymond Scott Enyart (“Enyart”) (R.T. 2521-22, 2534-35).
Petitioner’s trial attorneys and their investigators also
did not locate any earshot witness. Following his July, 1994
appointment, Petitioner’s second attorney, John Isaacs
(“Isaacs”), visited the crime scene at least 20 to 25 times
(R.T. 2573). On three separate occasions, Isaacs’ investigator
also visited the scene. Id, Isaacs talked to people at the
business complex at the crime scene and inquired whether
there were any percipient witnesses to the shooting (R.T.
2573, 2566). Isaacs recontacted the majority of the witnesses
contacted during the police investigation, but did not
recontact Enyart (R.T. 2566-67) On two or three occasions,
Isaacs visited the Frahm Chrysler agency, a business located
. Petitioner’s first trial ended in a hung jury (Clerk’s Transcript
(“C.T.”) 81). Isaacs represented Petitioner at his second trial.
F-5
north of the crime scene (R.T. 2567). Isaacs talked to some of
the employees there. Id. Isaacs did not visit the Phillips
Mazda agency across the street, west of the crime scene (R.T.
2567-2571). Isaacs talked to a number of people on the street
during his numerous visits to the area, but did- not inquire
where these persons were employed (R.T. 2568).
In January of 1995, the jury found Petitioner guilty of
first degree murder (R.T. 2419-20, 2431, 2433-38). In April
of 1995, Petitioner filed a motion for a new trial (C.T. 253).
This motion argued, inter alia, ineffective assistance of
counsel for failure to locate an present at trial potential
witness Enyart (C.T. 300-302).
The trial judge conducted a post-trial evidentiary
hearing in June, 1995. At this evidentiary hearing, Enyart
testified that, in December of 1992, he performed janitorial
services for automobile dealerships in Norco, including
Frahm Chrysler (R.T. 2489-90). Enyart stated that, some
evening in December, 1992, he heard two gunshots at
approximately 9:30 p.m. (R.T. 2490-91). He was Standing in
the parking lot at the Frahm dealership at the time he heard
the shots (R.T. 2491). Although, at one point, Enyart stated
he believed he approached uniformed officers the same night
he heard the shots, Enyart later admitted he was not sure of
the particular night he heard the shots (R.T. 2492-93, 2499-
2500, 2503-04; see also C.T. 368). Although interviewed by
police in connection with the matter, Enyart never told police
he heard any shots (R.T. 2521-22, 2534-35, 2500).
Another potential witness, Michael Ramos (“Ramos”),
also testified at the June, 1995 evidentiary hearing (R.T.
2469-87). Ramos testified that, in December of 1992, he
worked for Phillips Mazda (R.T. 2471). Phillips Mazda was
located across the street, west of the crime scene (R.T. 2471-
F-6
72). Ramos testified that, on one particular December night,”
although his shift ended at 9:00 p.m., he remained at his place
of wor.. beyond the time (R.T. 2471-73). At 9:20 or 9:25
p.m., while leaning against a wall, Ramos reportedly heard
two shots (R.T. 2472-73, 2479). Ramos then was near an
operating water fountain and under and outdoor speaker that
was playing soft music (Jd.) Ramos then was about 200-300
yards away from the rear of the motorcycle shop (R.T. 2481).
Ramos thought the shots came not from the area of the
motorcycle shop but from the area of the 7-Eleven, a quarter
mile south of his location (R.T. 2475, 2478, 2481). Although
Ramos claimed he a associated his hearing these gunshots
‘ with his subsequent knowledge that someone had been killed,
he chose not to come forward because he “didn’t want to get
involved” (R.T. 2483).
The trial court denied the motion for a new trial,
rejecting the suggestion that Isaacs (or his predecessor)
provided ineffective assistance of counsel (R.T. 2619-24; see
also R.T. 2561-62). The California Court of Appeal likewise
found that Petitioner’s trial counsel was not ineffective in
failing to subpoena the employment records of neighboring
businesses to locate possible witnesses (Exhibit S to “Exhibits
Accompanying Petition, etc.,” filed September 4, 1998 (“Ct.
App Op.”) at 23-25). The Court of Appeal stated:
“Both defendant’s first attorney. and [Isaacs]
were aware of the police investigation of the
case. That investigation included many
contacts with persons employed at the
surrounding businesses. That investigation
also took place well before suspicion focused
on [Petitioner] . . .
: Ramos was uncertain of the date, though he said the date
preceded by one day his having heard a rumor “somebody had gotten
killed” “across the street” (R.T. 2472)
F-7
“In addition, although employees at the auto i
dealerships were well aware of the killing, not i
a single person ever came forward with any |
- information. The defense posted reward
posters in the area, asking for witnesses, but
produced no leads.
“Given these facts, we cannot fault defense 4
counsel’s performance in failing to pursue |
further avenues that had so far proved
fruitless. As with any investigation, there is
always something else that might have been
done, but we are not entitled to judge with
hindsight. [Petitioner] has failed to show his
counsel’s performance was deficient. His
claim of ineffective assistance of counsel
fails” (Ct. App. Op. at 24-25).
With specific regard to Enyart, the Court of Appeal found:
“The police investigation included a
specifically mentioned contact with Enyart.
He told police he heard no gunshots. Even at
the date of the new trial motion, Enyart
admitted he might have told the officer that.
Thus, even if the defense had discovered and
interviewed Enyart much closer to the timeiof
the killing, it is unlikely that any information _
would have been developed” (Ct. App. Op. at i
24). i
Following the denial of California Supreme Court i
review, Petitioner renewed his ineffective assistance of 4
counsel claim in the present proceeding. At the December 6, |
1999, evidentiary hearing before the Magistrate Judge, Enyart
testified he could not connect the night when he heard shots
and the night when he saw police activity (Reporter’s |
Transcript of Proceedings, December 6, 1999 (“Fed. R.T.”) it
29-30) Enyart also testified he heard the shots “very soon”
— : ed
pegs. Ly i
E Tre eX ; 4
sa 3h Sager NaN Ste, ; S seihaata _
F-8
after his 9:00 p.m. arrival at work (Fed . R.T. 31). Ramos did
not testify at the evidentiary hearing; Petitioner’s investigator
could not re-locate Ramos (Fed. R.T. 48-49). Edward A.
Rucker (“Rucker”), a criminal defense attorney, testified as
Petitioner’s expert witness. Rucker opined Isaacs’
investigation had been unreasonably deficient (Fed. R.T. 67-
68).
STANDARD OF REVIEW
The Petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214, signed by the President on
April 24, 1996 (*“AEDPA”). Therefore, AEDPA’s provisions
apply. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997);
Jeffries v. Wood, 114 F.3d 1484, 1499 (9" Cir.) (en banc),
cert. Denied, 522 U.S. 1008 (1997). AEDPA provides, in
relevant part, that an application for writ of habeas corpus on
behalf of a person in state custody shall not be granted with
respect to any claim that was adjudicated on the merits in
state court proceedings unless the adjudication of the claim:
(1) resulted in decision that was contrary to, or involved an
unreasonable application of, “clearly established Federal law,
as determined by the Supreme Court of the Untied States”; or
(2) resulted in a decision that was based on an “unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254 (d) (as
amended); see Williams v. Taylor, 120 S. Ct. 1495 (2000);
Weighall v. Middle, 2000 WL 702986 (9™ Cir. June 1, 2000);
Van Tran v. Lindsey, 2000 WL 622070 (9" Cir. May 16,
2000).
F-9
DISCUSSION
For the reasons discussed herein, the Petition should
be denied and dismissed with prejudice.
I, sistance o
Counsel Claims
To establish ineffective assistance of counsel,
Petitioner must prove: (1) counsel’s representation fell below
an objective standard of reasonableness; and (2) there is
reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 694,697 (1984
(“Strickland”). The court may reject the claim upon finding
either that counsel’s performance was reasonable or the
Claimed error was not prejudicial. Strickland, 466 U.S. at
697; Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9" Cir.
1995), cert.denied, 516 U.S. 1124 (1996).
Review of counsel’s performance is “highly
deferential” and there is a “strong presumption” that counsel
rendered adequate assistance and exercised reasonable
professional judgment. Uni v. Qui 78
F.3d 1344, 1348 (9" Cir. 1995), cert. denied, 519 U.S. 848
(1996); see_ Strickland, 466 U.S. at 689 (“a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance”).
The Court must judge the reasonableness of counsel’s
conduct “on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Strickland, 466 U.S. at 690. The
test is “only whether some reasonable lawyer . . . could have
acted, in the circumstances, as defense counsel acted.”
Coleman v. Calderon, 150 F.3d 1105, 1113 (9" Cir.), rev’don
other grounds, 525 U.S. 141 (1998), cert. denied, 425 U.S.
1058 (1998) (citations and internal quotations omitted). The
Court may “neither second-guess counsel’s decisions, not
apply the fabled twenty-twenty vision of hindsight.”
F-10 :
Campbell v. Wood, 18 F.3d 662, 673 (9™ Cir.), cert. denied,
511 U.S. 1119 (1994).
Il. Petitioner Has Not Carried His Burden of
Proving Counsel’s Investigation was Unreasonable.
Petitioner has failed to demonstrate that trial counsel’s
investigatory acts or omissions fell outside “the wide range of
reasonable professional assistance.” Petitioner’s contrary
arguments should be rejected.
The police conducted a prompt and extensive
investigation, which included contacts with businesses
surrounding the murder scene. This investigation did not
yield any earshot witness. Police interviewed the person
_ apparently closet to the shooting. This person said she heard
nothing.
Nevertheless, and despite the passage of more than a
year and a half between the shooting and his appointment,
Isaacs did conduct significant investigation. He personally
visited the scene many times, talked to numerous people and
he also utilized an investigator. He recontacted the majority
of witnesses contacted during the police investigation.
Although the record does not disclose the degree to which
Isaacs’ investigation was systematic or comprehensive,
Isaacs’ investigatory efforts were extensive.
A police interview of Enyart, conducted soon after the
shooting, did not reveal any material evidence. Neither
Isaacs’ failure to re-interview Enyart nor his failure to obtain
employee records from surrounding businesses was
unreasonable under the circumstances. See In re Cudjo, 20
Cal. 4" 673, 694, 85 Cal. Rptr. 2d 436, 449, 977 P.2d 66, 79
(1999) (“there is no fixed rule requiring counsel to confirm all
key facts stated in law enforcement investigation reports . . .
Absent some concrete reason to doubt the reliability of this
information . . . trial counsel could reasonably accept it as
accurate”); cf. Strickland, 466 U.S. at 691 (when counsel is
given reason to believe that pursuing certain investigations
F-11
would be fruitless, counsel’s failure to pursue those
investigations may not be later challenged as unreasonable);
McDonald v. Delo, 897 F. Supp 1224, 1251 (E.D. Mo. 1995),
aff'd 101 F.3d 588 (8™ Cir. 1996), cert. denied, 521 U.S. 1127
(1997) (where counsel reasonably could infer there existed no
additional witnesses with percipient knowledge, counsel not
ineffective for failing to investigate potential witnesses across
the street from the scene of the crime).
This Court does not find Rucker’s contrary opinion
persuasive. Rucker did not review Isaacs’ file to determine
what was and was not done by Isaacs or at Isaacs’ direction
(Fed. R.T. 81-82). Rucker erroneously believed Isaacs had
not utilized an investigator (Fed. R.T. 74). More
fundaméntally, Rucker seemed to contend that, regardless of
the nature of the police investigation, regardless of the
passage of time, and regardless of other investigatory
measures undertaken by trial counsel, in necessarily would
have been unreasonable for counsel to fail to obtain employee
records for all businesses in the vicinity and to interview
individually all employees listed on those records. Petitioner
has not cited, and this Court has not found, any decisional
authority that would extend counsel’s duty under Strickland
nearly so far. Cf. Blair-Bey v. Nix, 44 F.3d 711, 713 (8" Cir.
1995) (“We decline to impose a duty on criminal defense
attorneys to hire private investigators to locate recalcitrant
witnesses”).
As the above discussion indicates, this Court finds
Petitioner has failed to carry his burden of demonstrating
counsel’s unreasonableness. Thus, this court necessarily finds
that the state courts similar determinations did not result “in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State Court proceeding.”
rrmpintetipinty
OI ee ren Amarin t«
26 NS aeacy ramet mane nce
F-12
28 U.S.C § 2254 AGe see Van Tran v. Lindsey, 2000 WL
622070 **6-7 (9 Cir. May 16, 2000) (state court decision
must constitute “clear error” to warrant habeas relief under
the AEDPA).*
RECOMMENDATION
For all of the foregoing reasons, IT IS
RECOMMENDED that the Court issue an Order: (1)
approving and adopting this Report and Recommendation;
and (2) directing that Judgment be entered denying and
dismissing the Petition with prejudice.
DATED: June 28, 2000
/s/ Charles F. Eick
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to
the Court of Appeal, but may be subject to the right of any
party to file objections as provided in the Local Rules
Governing the Duties of Magistrate Judges and review by the
District Judge whose initials appear in the docket number. No
notice of appeal pursuant to the Federal Rules of Appellate
Procedure should be filed until entry of the judgment of the
District Court.
, This Court need not and does not reach the issue of whether there
exists a reasonable probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.
(10 COPIES OF THE
REPORTER’S TRANSCRIPT LODGED WITH COURT)
APPENDIX G
ASVEMELL
H-1
UNITED STATES DISTRICT COURT
CENTRAL
DISTRICT OF
ALAN RICHARD MYERS, CALIFORNIA
Petitioner
V. No. EDCV 98-215 RT
C. A. TERHUNE, Director, “
California Department of
Corrections, Respondent
DECLARATION OF
- BARRY LEVIN
1. I am an attorney at law and licensed to practice in the
State of California. My office is located at 11640 San
Vicente Boulevard, Suite 201, Los Angeles, California.
My telephone number is 310-208-6070. My four-page
resume is attached hereto and incorporated herein as though
fully set forth. I have tried to a jury 7 death penalty cases
with no death judgments and I have represented
additionally a similar number of clients in cases in which
one form or another of homicide was charged. I am
familiar with the standard of diligence required for a
criminal trial attorney in this state at the time of Mr. Myers’
trial, 1994.
2. I have been asked by Conrad Petermann, Mr. Myers’
attorney, to access the representation Mr. Myers received
from his trial attorney, Deputy Public Defender John
Isaacs, in Mr. Myers’ 1994 murder trial. To accomplish
this task, I have reviewed an extensive amount of material
that I have been provided. I have read, reviewed, and used
as a basis for my professional opinion, the following
H-2
material: (1) three computer disks containing an unedited
version of the reporters’ transcripts of Mr. Myers’ second
trial; (2) a 48 page summary of the above transcripts; (3)
the reporter’s transcript of closing arguments; (4) the
reporter’s transcript of the hearings on the motion for new
trial; (5) the petition for writ of habeas corpus form for
federal court, as amended; (6) the petition for writ of
habeas corpus and memorandum of points and authorities,
as amended; (7) all the exhibits that accompanied the
federal habeas petition; (8) respondent’s notice of
lodgment; (9) respondent’s return; and (9) Mr. Myers’
traverse.
3. It is my professional opinion that the representation by
Mr. Isaacs in Mr. Myers’ trial, fell well below the level of
professional competence constitutionally required of an
attorney in a murder case under the professional standards
prevailing in 1994 as required by the Sixth Amendment to
the Constitution. In reaching this conclusion, I have in
mind the standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 688 (1984).
The Strickland standards posit two requirements. First,
counsel’s representation must fall below an objective
standard of reasonableness under professional norms
prevailing at the time of counsel's conduct. Second, a
reasonable probability must exist that, but for counsel’s
deficient performance, the result of the proceedings would
have been different. _
4. Trial counsel committed serious errors and omissions in
the investigation of and preparation for Mr. Myers’ trial
which individually and collectively amount to
constitutionally ineffective assistance of counsel:
A. Trial counsel unreasonably failed to
investigate and present readily available
exculpatory evidence;
B. Trial counsel unreasonably failed to
investigate for witnesses at the automobile agency
H-3
to the west of the crime scene to the sound of, or the
lack of the sound of, shots from a firearm on the
night of the homicide;
Cc Trial counsel unreasonably failed to
investigate for witnesses employed as janitors in the
cleaning of the automobile agencies located to the
north and west of the crime scene to the sound of, or
the lack of the sound of, shots from a firearm on the
night of the homicide; and
D. Trial counsel unreasonably failed to
investigate through the use of a subpena for the
employment records of the automobile agencies to
the north and west of the crime scene and the
janitorial service used by those agencies for
witnesses employed by these employers that may
have be witnesses to the sound of, or the lack of the
sound of, shots from a firearm on the night of the
homicide.
THE OBJECTIVE STANDARD OF
REASONABLENESS UNDER PROFESSIONAL
NORMS PREVAILING AT THE TIME OF
COUNSEL’S CONDUCT
5. Every murder case requires thorough representation.
Representation of an accused murderer in itself is a
mammoth responsibility (Jn re Hall 30 Cal.3d 408,434, 179
Cal.Rptr. 223 (1980)) and the seriousness of the charges
against the defendant is a factor that must be considered in
assessing counsel’s performance (Jn re Jones, 13 Cal.4" 52,
59, 54 Cal.Rptr.2d 52 (1996)).
6. The demands for investigation” are substantial. A
lawyer cannot be half-hearted in the application of his or
her energies to a case. Once a case has been undertaken, a
lawyer is obliged not to omit any essential lawful and
ethical step in the defense, without regard to compensation
or the nature of the appointment. Consequently, without a
thorough factual investigation, defense counsel
ace ay
H-4
incapacitates himself from performing his constitutionally
required role. Without adequate investigation the lawyer is
not in a position to make the best use of such mechanisms
as cross-examination or impeachment of adverse witnesses
at trial, or moreover to challenge the heart of the
prosecution’s theory of the case. Effective representation
in a constitutional sense reflects adversarial testing of the
prosecution’s case. Also, counsel must make informed
tactical decisions on the nature and scope of the defense
investigation in an attempt to uncover exculpatory
evidence.
7. The demands of investigation require that counsel see
to it that the facts surrounding the events of and witnesses
to the crime are investigated. This investigation should be
prompt and should explore all avenues leading to facts
relevant to the merits of the case. The investigation
literally must take counsel, usually vicariously through
investigators, to every significant geographic and personal
contact that may have pertinent evidence that may
exonerate his client. An attorney is only excused from such
pursuit if he has reasonable grounds for not doing so.
8. It is only after counsel has performed such an
investigation that he can make a reasoned decision to
pursue certain defense strategies and abandon others.
Adequate pretrial preparation and investigation therefore
safeguards a defendant’s right to a fair trial and ensures the
reliability of the adversarial testing process.
9, All individuals related to the commission of the crime
obviously must be interviewed and the state’s theory of
prosecution must be questioned and challenged, if possible,
either legally or factually. Usually, the investigator should
be an experienced criminal investigator, familiar with crime
scene evidence, court procedure, police investigative
techniques, and prosecutorial strategy. This investigation
journey is cumulative; the more you learn, the more you
find out what you don’t know and what you need to know.
H-5
The gems of the investigation are often found in the most
unlikely places and can only be ascertained if the
investigation is thorough and focused.
10. It is my professional opinion that well before the
time trial counsel became involved in this case in 1994,
there was an abundance of educational and other resource
material establishing a high standard of care for the defense
of murder cases in California. The minimal aspects of this
high standard of care were promulgated in the 1993 Third
Addition of the ABA Standards for Criminal Justice
Prosecution Function and Defense Function, and it is,
therefore, appropriate to judge counsel’s conduct in this
case by these Guidelines.
COUNSEL’S OMISSIONS FELL FAR BELOW THE
STANDARD OF CARE FOR THE DEFENSE OF A
MURDER CASE IN CALIFORNIA IN 1994 AND IT
IS REASONABLY PROBABLE THAT BUT FOR
COUNSEL’S DEFICIENT PERFORMANCE, THE
RESULT OF MR. MYERS’ TRIAL WOULD HAVE
BEEN DIFFERENT
11. Based on my review of the material detailed above,
I am of the strong opinion that trial counsel’s investigation
in this case was woefully inadequate, because it did not in
any respect measure up to the minimal standard of care set
forth above.
12. This was purely a circumstantial evidence case.
There were no eyewitnesses to the shooting, no vehicle
license plates had been identified at or leaving the scene of
the crime, no physical evidence was discovered at the crime
that directly indicated Mr. Myers was responsible, no
physical evidence found with Mr. Myers that connected
him to the crime, no fingerprints were found, and there was
no confession.
13. | The outcome of the trial was directly linked to the
deductions and presumptions that would be made on the
circumstantial evidence. Circumstantial evidence cases of
Ca Pe nae a ee
H-6
this nature are difficult to prosecute. If this had been a
crime other than homicide, it is highly unlikely that it
would have been prosecuted.
14. The general approach to the case formulated by trial
counsel can be described as an alibi defense. It required (1)
fixing the time of the shooting, if you could, and (2)
establishing where Mr. Myers was at that time. Plainly
stated, based on the prosecutor’s theory, did Mr. Myers
have the opportunity to commit the crime. There was
plenty within the discovery materials provided the defense
that indicated that there were people present in the area
when the victim could have been shot. Where the crime is
committed with a firearm, it is fundamental to determine
who heard or did not hear the gunshot or gunshots at the
time of the shooting. The first step was to determine who
was in the area, including the automobile agencies and
other businesses that surround the crime scene to the north
and west. The second step was to confirm by subpoenaing
business records of those businesses that everyone who was
on duty that night had been interviewed. If this was done
promptly, not only would Mr. Enyart and Mr. Ramos have
been found, but other witnesses as well since both had
either been with someone else when they heard the shots or
had discussed hearing the shots with someone else.
15. _ Ifthe steps in the preceding paragraph did not bear
fruit, or did not bear adequate fruit, more exhaustive steps
should have been employed to locate potential witnesses to
the sound of or the absence of the sound of gunshot(s), e.g.,
a search for automated video recorders in adjoining
business, subpena of traffic citations or accident reports
occurring near the crime scene and during the four hour
window in which the victim could have been shot.
16. The attorney in this type of case must zealously
investigate for direct evidence to the crime. There may not
be eyewitnesses, but where the crime was committed with a
firearm, there should be witnesses to the sound of a gunshot
H-7
or witnesses that were positioned so that they should have
heard a gunshot at a particular time if a gunshot had been
fired. For defense counsel to fail to exhaustively
investigate for such witnesses was incompetent.
17. _ The last person to have spoken with the victim did
so by telephone at 7:50 p.m. Mr. Barbarino, a member of
the Alcoholics Anonymous chapter that Mr. Myers
attended, testified that he talked to Mr. Myers at an A.A.
meeting on the night of the homicide, and their
conversation may have been as late as 9:30 p.m. when the
meeting ended. Unrefuted telephone records introduced at
the trial established that a telephone call to Mr. Myers’
estranged wife’s residence was made at 9:50 p.m. from the
Borque’s residence where Mr. Myers was staying. The
Borques testified that Mr. Myers was at their residence at
about the time when the call was made. The Borques were
entertaining guests following the funeral of Mr. Borque’s
father. The A.A. meeting hall was a 55-minute drive from
the crime scene (61.4 miles) and the Borque’s residence
was a 10-minute drive from the A.A. meeting hall (.3
miles). The victim’s body was found just before midnight.
18. ‘In my professional opinion, it was essential for trial _
counsel to resolve whom, if anyone, was outside and within
earshot to the sound of a gunshot from 7:50 p.m. until
midnight. The likelihood of finding such person or persons
was great since the business adjoining on the north and
west were automobile dealerships with large open lots.
Whether a person so situated heard or did not hear a
gunshot would have been highly relevant to the viability of
Mr. Myers’ defense. With or without the aid of an
investigator, such an investigation was very straightforward
and relatively easy. With businesses in close proximity to
the north and west of the crime scene, each of these
businesses had to be combed for such witnesses. That
investigation should also have disclosed that a private
contractor after 9:00 p.m. did the cleaning for these
H-8
agencies. Indeed, the police investigation disclosed and
identified Mr. Enyart as that contractor. The only way to
help insure that all the employees of these businesses had
been contacted was to subpena their employment records.
19. _In these cases, it is never reasonable to rely solely
on police investigation to locate potential defense
witnesses. Law enforcement’s goals in these cases are not
synonymous with the defense’s goals. Once the police
have posited a suspect, their efforts are generally directed
toward finding evidence that supports their premise and not
towards evidence that disproves it. Once they have
completed this process, they are not going to go back and
look for evidence that will disprove their conclusions. This
is not out of improper motives, but is the natural response
of often working under time pressures and without
adequate resources in the resolution of too many cases.
This is not a matter of trying to put a case on someone, it is
a question of the officer believing that he has the right
person and not wasting his limited resources to try to
disprove it. This is with the assumption that the officer is
operating in good faith and ethically. Furthermore, one
does not know what questions an officer asked and what
the attitude of the witness was. Either could be
determinative of the information obtained.
20. It is not reasonable to rely on an employer to
investigate for employees that may be witnesses. You have
no assurance that an employer will be exhaustive in his
search. You do not know the employer; every person is
unique and will have a different sense of commitment to
the task. The very nature of the request has built in
disincentives to the employer. It is very unlikely that an
employer will have the interviewing skills.to adequately
assure whether the employees he is interviewing have
information useful to the defense. In turn, witnesses to
crimes are very unlikely to voluntarily identify themselves
to law enforcement or the defense. A substantial number of
H-9
people that I have encountered have the greatest reluctance
to involve themselves in a criminal investigation. This is a
universal, deep-seated character trait. In the extreme, even
in a penalty phase trial, witnesses will not want to
participate even where the defendant’s life is at stake.
21. In addition, it is not reasonable for successor
counsel to rely on the efforts of his predecessor counsel to
determine the scope and breadth of his investigation. To do
so would be an abdication of his role as an attorney. In
fact, predecessor counsel is often in a better position to
access the weaknesses and strengths of the People’s case
once that case has been examined under the scrutiny of a
trial. Thus, it should have been readily apparent to
successor trial counsel the importance of an exhaustive
search for witnesses to the gunshot(s).
22. The general approach to the investigation of the
case appears to have been implemented by unstructured
visits to the crime scene by trial counsel himself, unassisted
by any significant assistance by a criminal investigator,
without a thorough canvass of ai] adjoining businesses
where employees, customers, or cleaning crews may have
been present, and without employment of the most basic
tool of investigation, the subpena, to determine the
identification of all the employees who may have been
present.
23. In my professional opinion counsel was woefully
inadequate in the investigation he conducted for Mr.
Myers’ trial. It is my professional opinion trial counsel’s
efforts fell far below the standard of practice demanded by
the case and Strickland.
24. —_ Finally, I am also of the opinion that there was no
imaginable. strategic reason for failing to undertake an
adequate investigation. It was not done for any tactical
reason, but out of simple neglect of duty. It is my
professional opinion that as to these admitted neglects of
ee Bens
Ones
i, 2 a ee pe oe ee mom ee
a Me erin 2 cane ee ee
—_—s se mS ee eS
H-10
duty, there is no doubt that counsel rendered ineffective
assistance of counsel which seriously prejudiced petitioner.
25. Addressing the prejudice prong of Strickland, even
before the discovery of Enyart and Ramos, the time of
death evidence was consistent with the innocence of Mr.
Myers. That is, it was consistent with the victim being shot
at a time when Mr. Myers alibi was unrefuted. The jury
instruction that informed the jury that when choosing
between two reasonable circumstances, one pointing
towards innocence and one pointing towards guilt, they had
to select the innocent inference had keen importance in this
case.
26. This was a weak case, evidenced by the deadlocked
jury following the first trial.
27. The so called motive evidence in this case was
particularly weak, since Cynthia Myers’ infidelity with the
victim had been known to Mr. Myers for months; this was
not one of those volatile reactions wernt: a recent
discovery.
28. The value of evidence of rn at 9:30 p.m. was
extremely powerful to the defense case. Mr. Enyart and
Mr. Ramos were not related and both placed the time of the
shots within minutes of each other, and both heard two
shots. Both were able to tie the night to when all the police
activity was at the crime scene (in the case of Enyart) and
to having heard about the homicide on the next day (in the
case of Ramos). Any diminution in their value was solely
attributable to the passage of time. If they had been located
and interviewed closer to the time of the homicide, their
testimony could have been firmed up. And, as discussed
earlier, they would likely have led to other witnesses to the
shots and witnesses to Enyart and Ramos talking about the
shots. Even if Barbarino’s testimony was completely
discounted, Mr. Myers’ presence 55 miles away at 9:50
p.m. was solid. But for trial counsel’s deficient
performance, the result of Mr. Myers’ trial would have
H-11
been different. Evidence that completely undermined the
prosecution’s theory for the time of the shooting and set the
time when Mr. Myers’ alibi was unrefutable would clearly
have established-a reasonable doubt.
29. Based on my review of the material provided, |
have concluded that the pretrial investigation and
preparation in this ease was at best preliminary, superficial, ~
and omitted a series of basic investigative steps.
30. Counsel’s inadequate pretrial preparation resulted in
counsel’s overall inadequate performance at Mr. Myers’
trial.
I declare under penalty of perjury that the foregoing
is true and correct. Executed on this third day of March
1999, at Santa Monica, California.
/S/ Barry Levin
Barry Levin
Attorney at Law
H-12
BARRY LEVIN
ATTORNEY AT LAW
11640 San Vicente Boulevard, Sune 201
Los Angeles, California 90049
Telephone (310) 208-66070 FAX (310) 785-0871
EDUCATION
POST GRADUATE
Uewad Suenos Court of Aggunaie for Ge ‘arnt Cimuin S
| meted Sagmee Ssapewerme (ont bd
H-14
Burglary Scandal” (Los Angeles Police Officer charged
with burglarizing businesses on duty, People v. Carter).
Succeeded in obtaining life sentences in penalty phase of
death penalty cases: People v. Hawkins (son of Watts
grocer accused of double homicide with prior 1* Degree
murder conviction, People v. Drescher (Hare Krishna
accused of contract killing with prior 1* Degree murder
conviction), Eric Menendez and People V. Watley.
Defended Los Angeles Officer Jimmy Pearson (charged
with planting bomb on athletes’ bus during 1984 Olympic
Games), People v. Weible (kidnap and attempted rape of a
Van Nuys Municipal Court Judge, case dismissed after two
hung jury trials), and Ivan Nagy (boyfriend of Heidi
Fleiss).
Accepted for Appointment to Represent Indigent
Capital Defendants — Attorney, Central District Capital
Case Panel, Los Angeles County Superior Court (1992 —
present).
Civil:
Represented plaintiff in State Court jury trial,
plaintiff awarded $500,000, Malmgreen v. RTD. Defended
Stanton Police Chief in Federal civil rights action.
Defended Los Angeles Police Department Commander
Maurice Moore; Federal civil rights jury trial; obtained
defense judgment.
Conflict Panel for the City of Los Angeles
Representing Police Officers in Civil Rights cases, (1998 —
present).
Appellate:
Briefed and argued cases before California
Appellate, California Supreme Court, 9" Circuit Court of
Appeals; published opinions Yagman v. City of Stanton,
798 Fed. Rptr.2d, 1230; Lyons v. City of Los Angeles,
People v. Payton.
H-15
Accepted for Appointment — Attorney, Federal
Central District capital Habeas Corpus Panel (1994 -—
present).
Administrative/Labor:
Represented Chiefs of Police: former Long Beach
Chief Larry Binkley; attorney for then Assistant Los
Angeles Police Chief Bernard Parks; retained counsel for
Los Angeles Police Command Officers Association.
Counsel of Record in numerous Writ of Mandate actions
appealing administrative discipline. Retained Counsel in
police pension matters heard before Los Angeles Police
Pension commissioners, and Los Angeles Police
Department, Board of Rights.
MILITARY SERVICE
June 1965 to United States Army June
1968 (Airborne Infantry)
Rank: SSG E-6,
Honorable Discharge
Two combat tours in Vietnam. Awarded (3) Purple
Heart Awards, Bronze Star with “V” Device, Air Medal,
Combat Infantry Badge, Paratrooper Wings. Cadre to
Cadets, U.S. Military Academy, West Point (1968).
Assigned to 1* Cavalry Division, 101° Airborne Division,
and 82" Airborne Division.
PUBLICATIONS
Levin, Defending the Vietnam Combat Veteran,
Vietnam Veterans Legal Assistance Project, Los Angeles,
1989
H-16
Levin, Defense of the Vietnam Veteran With Post
Traumatic Stress Disorder, (1993) 46 AM JUR TRIALS,
441.
NEWS MEDIA EXPERIENCE
Quoted for expert commentary on litigation issues
and/or cases of public interest in The New Yorker, USA
Today, U.S. News and World Report, Los Angeles Times,
The New York Times, Chicago Tribune, Wall Street
Journal, Los Angeles Daily News, California Lawyer, and
other publications.
Regional and national radio/television appearances
including The MacNeil Nehrer News Hour, Prime Time
Live with Sam Donaldson, World News Tonight with Tom
Brokaw, The Today Show, CNN’s Crossfire, Larry King
Live, American Journal, Hard Copy, Court T.V., Good Day
LA, Which Way L.A. (KCRW-FM), and other major-market
radio stations nationwide; new commentator, O.J. Simpson
trial.
LECTURES/TEACHING
Adjunct professor, Criminal Law, Advanced
Criminal Procedure, University of La Verne School of
Law, 1995 to present.
Faculty, criminal law, Death Penalty College,
Santa Clara University College of Law, 1994 to present.
Lecturer, Character Evidence, to Los Angeles
Public Defenders, 1997.
Lecturers, Post-Traumatic Stress Disorder,
International Association of Trauma Counselors, Inc., 1993
-— 1995.
Series on criminal law to California attorneys for
continuing legal education credits, (CACJ, CCBA) 1991,
1992.
H-17
Lecturer, criminal law, University of Southern
California Law Center, 1987.
Series on veterans issues and law, Veterans
Administration, 1981 — 86.
SPECIAL APPOINTMENTS
Member, Board of Directors, Criminal Court Bar
Association, 1991 — present, President Elect 1999.
} Member and Co-chair, Indigent Criminal Defense
Appointments Program Commiittee, Los Angeles County
Bar Association, 1993 - 1998, Chair Death Penalty
Qualifications Committee.
Commander, American Legion, Post #18, 1996 -
Commander, Veterans of Foreign Wars, Post #18,
1994.
Pro-bono lawyer, earthquake relief, FEMA Centers,
Los Angeles County Bar Association, 1994.
President, Vietnam Veterans Legal Assistance
Project to provide free consultation to attorneys nationwide
on legal issues regarding Vietnam veterans, 1986 — 1993.
Member,National Advisory Panel regarding
distribution of $180 million settlement in Agent Orange
toxic tort litigation (appointed by U.S. Chief Judge Jack
Weinstein, New York).
Member, Office of Criminal Justice Planning
Committee regarding distribution of funds to law
enforcement agencies (appointed by California Governor
George Deukmejian).
Judge Pro-Term, Beverly Hills Municipal Court,
1985 — 1988. :
H-18
AWARDS
Recipient of the 1997 Gerry Geisler Memorial
Award for Trial Attorney of the Year by the Los Angeles
County Criminal Courts Bar Association.
ADDITIONAL
Expert witness, Ineffective Assistance of Counsel,
availability of mental state defense People v. Miles (1995),
People v. Palm (1997), San Diego County Superior Court,
Ghent v. Calderon U.S. District Court, Central District,
Anderson v. Calderon, U.S. District Court, Northern
District; People v. Visciotti, District Court, Los Angeles,
1999.
Personal references available on request.
i ere ee en. Her Pah ates” 9? ig OR oe gl wey ee BE CND ie - . beet Ti tGrbke . ©
APPENDIX I
I-1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN RICHARD MYERS, | No. EDCV 98-215 RT
Petitioner (E)
v.
ad i spaananostine Director, DECLARATION OF
penne Department of EDWARD A.
Corrections, Respondent RUCKER
1. I am an attorney at law and licensed to practice in
the State of California. My office is located at 1717 Fourth
Street, Third Floor, Santa Monica, California. My
telephone number is 310-576-6242. My four-page resume
is attached hereto and incorporated herein as though fully
set forth. I have tried to a jury 10 death penalty cases and I
have represented over 100 cases in which homicide was
charged. I am familiar with the standard of diligence
required for a criminal trial attorney in this state at the time
of Mr. Myers’ trial, 1994.
2. I have been asked by Conrad Petermann, Mr. Myers’
attomey, to access the representation Mr. Myers received
from his trial attorney, Deputy Public Defender John
Isaacs, in Mr. Myers’ 1994 murder trial. To accomplish
this task, I have reviewed an extensive amount of material
that I have been provided. I have read, reviewed, and used
as a basis for my professional opinion, the following
1-2
material: (1) selected portions of three computer disks
containing an unedited version of the reporters’ transcripts
of Mr. Myers’ second trial; (2) a 48 page summary of the
above transcripts; (3) the reporter’s transcript of closing
arguments; (4) the reporter’s transcript of the hearings on
the motion for new trial; (5) the petition for writ of habeas
corpus form for federal court, as amended; (6) the petition
for writ of habeas corpus and memorandum of points and
authorities, as amended; (7) all the exhibits that
accompanied the federal habeas petition; (8) respondent’s
notice of lodgment; (9) respondent's return; and (9) Mr.
Myers’ traverse.
3. It is my professional opinion that the representation by
Mr. Isaacs in Mr. Myers’ trial, fell well below the level of
professional competence constitutionally required of an
attorney in a murder case under the professional standards
prevailing in 1994 as required by the Sixth Amendment to
the Constitution. In reaching this conclusion, I have in
mind the standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 688 (1984).
The Strickland standards posit two requirements. First,
counsel’s representation must fall below an objective
standard of reasonableness under professional norms
prevailing at the time of counsel’s conduct. Second, a
reasonable probability must exist that, but for counsel’s
deficient performance, the result of the proceedings would
have been different.
4. Trial counsel committed serious errors and omissions in
the investigation of and preparation for Mr. Myers’ trial
which individually and collectively amount to
constitutionally ineffective assistance of counsel:
A. Trial counsel unreasonably failed to
investigate and present readily available
exculpatory evidence;
B. Trial counsel unreasonably failed to
investigate for witnesses at the automobile agency
I-3
to the west of the crime scene to the sound of, or the
lack of the sound of, shots from a firearm on the
night of the homicide;
c. Trial counsel unreasonably failed to
investigate for witnesses employed in the cleaning
of the automobile agencies located to the north and
west of the crime scene to the sound of, or the lack
of the sound of, shots from a firearm on the night of
the homicide; and
D. Trial counsel unreasonably failed to
investigate through the use of a subpena for the
employment records of the automobile agencies to
the north and west of the crime scene and the
cleaning company used by those agencies for
witnesses employed by these employers that may
have be witnesses to the sound of, or the lack of the
sound of, shots from a firearm on the night of the
homicide.
THE OP ““CTIVE STANDARD OF
REASONABLENESS UNDER PROFESSIONAL
NORMS PREVAILING AT THE TIME OF
COUNSEL’S CONDUCT
5S. Every murder case, and in particular a case that exposes
the client to a sentence of life without the possibility of
parole, requires thorough representation. Representation of
an accused murderer in itself is a mammoth responsibility
(in re Hall 30 Cal.3d 408,434, 179 Cal.Rptr. 223 (1980))
and the seriousness of the charges against the defendant is a
factor that must be considered in assessing counsel’s
performance (/n re Jones, 13 Cal.4™ 52, 59, 54 Cal.Rptr.2d
52 (1996)). No lawyer wants to live with the burden of
having an innocent client convicted.
6. The demands for investigation are substantial. A
lawyer cannot be half-hearted in the application of his or
her energies to a case. Once a case has been undertaken, a
I-4
lawyer is obliged not to omit any essential lawful and
ethical step in the defense, without regard to compensation
or the nature of the appointment. Consequently, without a
thorough factual investigation, defense counsel
incapacitates himself from performing his constitutionally
required role. Without adequate investigation the lawyer is
not in a position to make the best use of such mechanisms
as cross-examination or impeachment of adverse witnesses
at trial, or moreover to challenge the hart of the
prosecution’s theory of the case.
7. The demands of investigation require that counsel see
to it that the facts surrounding the events of and witnesses
to the crime are investigated. This investigation should be
prompt and should explore all avenues leading to facts
relevant to the merits of the case. The investigation
literally must take counsel, usually vicariously through
investigators, to every significant geographic and personal
contact that may have pertinent evidence that may
exonerate his client. An attorney is only excused from such
pursuit if he has reasonable grounds for not doing so.
8. It is only after counsel has performed such an
investigation that he can make a reasoned decision to
pursue certain defense strategies and abandon others.
Adequate pretrial preparation and investigation therefore
safeguards a defendant’s right to a fair trial and ensures the
reliability of the adversarial testing process.
9. All individuals related to the commission of the crime
obviously must be interviewed and the state’s theory of
prosecution must be questioned and challenged, if possible,
either legally or factually. Usually, the investigator should
be an experienced criminal investigator, familiar with crime
scene evidence, court procedure, police investigative
techniques, and prosecutorial strategy. This investigation
journey is cumulative; the more you learn, the more you
find out what you don’t know and what you need to know.
The gems of the investigation are often found in the most
I-5
unlikely places and can only be ascertained if the
investigation is thorough.
10. ‘In conclusion, it is my professional opinion that
well before the time trial counsel became involved in this
case in 1994, there was an abundance of educational and
other resource material establishing a high standard of care
for the defense of murder cases in California. The minimal
aspects of this high standard of care were promulgated in
the 1993 Third Addition of the ABA Standards for
Criminal Justice Prosecution Function and Defense
Function, and it is, therefore, appropriate to judge counsel’s
conduct in this case by these Guidelines.
COUNSEL’S OMISSIONS FELL FAR BELOW THE
STANDARD OF CARE FOR THE DEFENSE OF A
MURDER CASE IN CALIFORNIA IN 1994 AND IT
IS REASONABLY PROBABLE THAT BUT FOR
COUNSEL’S DEFICIENT PERFORMANCE, THE
RESULT OF MR. MYERS’ TRIAL WOULD HAVE
BEEN DIFFERENT
11. Based on my review of the material detailed above,
I am of the strong opinion that trial counsel’s investigation
in this case was woefully inadequate, because it did not in
any respect measure up to the minimal standard of care set
forth above.
12. The general approach to the investigation of the
case appears to have been implemented by unstructured
visits to the crime scene by trial counsel himself, unassisted
by any significant assistance by a criminal investigator,
without a thorough canvass of all adjoining businesses
where employees, customers, or cleaning crews may have
been present, and without employment of the most basic
tool of investigation, the subpena, to determine the
identification of all the employees who may have been
present. 7
13. The general approach to the case formulated by trial
counsel can be described as an alibi defense. It simply
I-6
required (1) fixing the time of the shooting and (2)
establishing where Mr. Myers was at that time. Where the
crime is committed with a firearm, the most fundamental
thing to do is determine who heard or did not hear the
gunshot. Where the crime scene was surrounded by other
businesses, it was simply a matter of subpoenaing business
records to learn who was on duty that night and then,
dispatching an investigator to interview those parties. If —
this was done promptly, not only would Mr. Enyart and Mr.
Ramos have been found, but other witnesses as well since
both had either been with someone else when they heard
the shots or had discussed hearing the shots with someone
else.
14. _—‘ The last person to have spoken with the victim did
so by telephone at 7:50 p.m. Mr. Barbarino, a member of
the Alcoholics Anonymous chapter that Mr. Myers
attended, testified that he talked to Mr. Myers at an A.A.
meeting on the night of the homicide, and their
converstation may have been as late as 9:30 p.m. when the
meeting ended. Unrefuted telephone records introduced at
the trial established that a telephone call to Mr. Myers’
estranged wife’s residence was made at 9:50 p.m. from the
Borque’s residence where Mr. Myers was staying. The
Borques testified that Mr. Myers was at their residence at
about the time when the call was made. The Borques were
entertaining guests following the funeral of Mr. Borque’s
father. The A.A. meeting hall was a 55-minute drive from
the crime scene (61.4 miles) and the Borque’s residence
was a 10-minute drive from the A.A. meeting hall (.3
miles). The victim’s body was found just before midnight.
15. In my professional opinion, it was essential for trial
counsel to resolve who, if anyone, was outside and within
earshot to the sound of a gunshot from 7:50 p.m. until
midnight. The likelihood of finding such person(s) was
great since the business adjoining on the north and west
were automobile dealerships with large open lots. Whether
1-7
a person so situated heard or did not hear a gunshot would
have been highly relevant to the viability of Mr. Myers’
defense. With or without the aid of an investigator, such an
investigation was very straightforward and relatively easy.
With businesses in close proximity to the north and west of
the crime scene, each of these businesses had to be combed
for such witnesses. That investigation should also have
disclosed that a private contractor after 9:00 p.m. did the
cleaning for these agencies. Indeed, the police
investigation disclosed and identified Mr. Enyart as that
contractor. The only way to help insure that all the
employees of these businesses had been contacted was to
subpena their employment records.
16. —_In these cases, it is never reasonable to rely solely
on police investigation to locate potential defense
witnesses. That is a hornbook principle. Law
enforcement’s goals in these cases are not synonymous
with the defense’s goals. Once the police have posited a
suspect, their efforts are generally directed toward finding
evidence that supports their premise and not towards
evidence that disproves it. Once they have completed this
process, they are not going to go back and look for
evidence that will disprove their conclusions. This is not
out of improper motives, but is the natural response of
often working under time pressures and without adequate
resources in the resolution of too many cases. This is not a
matter of trying to put a case on someone, it is a question of
the officer believing that he has the right person and not
wasting his limited resources to try to disprove it. This is
with the assumption that the officer is operating in good
faith and ethically. | Where the investigator appears
overzealous, like Detective Spidel, defense counsel has
even a greater duty to not rely on the information the
officer provided. Furthermore, one does not know what
questions Spidel, or any officer, asked and what the attitude
I-8
of the witness was. Either could be determinative of the
information obtained.
17. ‘It is not reasonable to rely on an employer to
investigate for employees that may be witnesses. You have
no assurance that an employer will be exhaustive in his
search. You do not know the employer; every person is
unique and will have a different sense of commitment to
the task. The very nature of the request has built in
disincentives to the employer. It may mean an absence by
the employee, possibly at the cost of the employer. If the
employee is unwilling to come forward, for the employer to
identify the employee to law enforcement could damage the
employer’s relationship with the employer. Thus, the
employer has no incentive to pressure the employee. In
turn, witnesses to crimes are very unlikely to voluntarily
identify themselves to law enforcement or the defense. A
substantial number of people that I have encountered have
the greatest reluctance to involve themselves in a criminal
investigation. This is a universal, deep-seated character
trait. In the extreme, even in a penalty phase trial,
witnesses will not want to participate even where the
defendant’s life is at stake.
18. In addition, it is not reasonable for successor
counsel to rely on the efforts of his predecessor counsel to
determine the scope and breadth of his investigation. To do
so would be an abdication of his role as an attorney. In
fact, predecessor counsel is often in a better position to
access the weaknesses and strengths of the People’s case
once that case has been examined under the scrutiny of a
trial. Thus, it should have been readily apparent to
successor trial counsel the importance of an exhaustive
search for witnesses to the gunshot(s).
19. ‘In my professional opinion counsel was woefully
inadequate in the investigation he conducted for Mr.
Myers’ trial. It is my professional opinion trial counsel’s
I-9
efforts fell far below the standard of practice demanded by
the case and Strickland.
20. Finally, I am also of the opinion that there was no
imaginable strategic reason for failing to undertake an
adequate investigation. It was not done for any tactical
reason, but out of simple neglect of duty. It is my
professional opinion that as to these admitted neglects of
duty, there is no doubt that counsel rendered ineffective
assistance of counsel which seriously prejudiced petitioner.
21. ‘The value of evidence of gunshots at 9:30 p.m. was
extremely powerful to the defense case. Mr. Enyart and
Mr. Ramos were not related and both placed the time of the
shots within minutes of each other, and both heard two
shots. Both were able to tie the night to when all the police
activity was at the crime scene (in the case of Enyart) and
to having heard about the homicide on the next day (in the
case of Ramos). Any diminution in their value was solely
attributable to the passage of time. If they had been located
and interviewed closer to the time of the homicide, their
testimony could have been firmed up. And, as discussed
earlier, they would likely have led to other witnesses to the
shots and witnesses to Enyart and Ramos talking about the
shots. Even if Barbarino’s testimony was completely
discounted, Mr. Myers’ presence 55 miles away at 9:50
p.m. was solid. But for trial counsel’s deficient
performance, the result of Mr. Myers’ trial would have
been different. Evidence completely undermining the
prosecution’s theory for the time of the shooting and setting
it when Mr. Myers’ alibi was unrefutable, would likely
have resulted in a not guilty verdict.
22. I can attest from my own experience and interviews
with jurors that such powerful exculpatory evidence does
persuade jurors to vote for a not guilty verdict.
23. Based on my review of the material provided, |
have concluded that the pretrial investigation and
-I-10
preparation in this ease was at best preliminary, superficial,
and omitted a series of basic investigative steps.
24. | Counsel’s inadequate pretrial preparation resulted in
counsel’s overall inadequate performance at Mr. Myers’
trial.
I declare under penalty of perjury that the foregoing
is true and correct. Executed on this first day of March
1999, at Santa Monica, California.
/s/ Edward A. Rucker
Edward A. Rucker
Attorney at Law
I-11
RESUME
EDWARD A. RUCKER
Attorney at Law
1717 Fourth Street, Third Avenue
Santa Monica, CA 90401
Telephone (310) 576-6242
EDUCATION
Boalt Hall School of Law
University of California
J.D. Degree — 1967
University of California at Berkeley
B.A. Degree — 1964
Honors: Speaker of the Graduating Class
Varsity Letterman
CERTIFICATION
Member of the California and New York Bar
Certified Criminal Law Specialist
California Board of Legal Specialization
=
PROFESSIONAL AWARDS
Selected by the Criminal Courts Bar of Los Angeles
as “Trial Lawyer of the Year” — 1992.
Listed in Best Lawyers in America
J-12
PUBLICATIONS
Author of Criminal Forms and Jury Instructions,
(1993), a four-volume work published by Bancroft-
Whitney Co. with annual supplements, which is in it
second edition.
Editor of The Death Penalty Manual, published by
California Attorneys for Criminal Justice (1990).
Co-author of California Criminal Law Practice,
Supplement 1980, California Continuing Education
of the Bar.
PROFESSIONAL EXPERIENCE
After a year in the civil litigation department of a
private law firm, I joined the Office of the Public
Defender. During my 14 years with that office,
functioned in every capacity available in an indigent
criminal defense agency. I am currently in private
practice, specializing in criminal defense.
TRIAL EXPERIENCE
My experience includes every aspect of criminal
representation. I have spent substantial periods of
time representing clients in preliminary hearings,
juvenile court, misdemeanor arraignments and trials
and felony arraignments and trials. I have tried in
excess of 100 jury trials.
Special Trials Unit:
For a period of four years, | was member of the
Special Trials Unit of the Office of the Public
I-13
Defender. In this capacity, I was assigned
exclusively the most serious and complicated death
penalty homicide cases throughout the County of
Los Angeles.
I have tried eight (8) capital cases to juries, through
the penalty phase.
APPELLATE EXPERIENCE
I have briefed and argued cases before the Superior
Court Appellate Department , the California District
Court of Appeals, and the Supreme Court of
California.
ADMINISTRATIVE EXPERIENCE
For a period of five years, I was Head Deputy in the
Office of the Public Defender, in charge at times of
both the Pomona and Pasadena Offices. In this
capacity, I had direct supervisory responsibility for
all the attorneys and clerical support staff assigned
to these Judicial Districts.
LECTURES
I have been invited to lecture on numerous
occasions throughout the State on various aspects of
criminal law at the request of professional
associations such as the Continuing Education of
the Bar, the California Judges Association, the
California Law Institute for Superior Court Judges,
the California Public Defenders Association,
California Attorney’s for Criminal Justice,
California District Attorney’s Association and
I-14
numerous bar associations. A partial list of the
more recent lectures is attached.
EXPERT WITNESS
I have been invited to testify as an expert on
criminal law before the California Assembly
Committee on Criminal Justice, and the American
Bar Association Committee on Criminal Reform
chaired by Sam Dash.
I have qualified as an expert in criminal law and
testified in the California Superior Court, Federal
District Court and before several administrative
boards.
PARTIAL LIST OF LECTURES
Lecturer at “Qualitative Difference: Capital Defense,”
sponsored by California Attorneys for Criminal
Justice, Monterey, February, 1998.
Lecturer at “Capital Case Defense Seminar,” sponsored by
California Attorneys for Criminal Justice,
Monterey, February, 1997.
Lecturer at 1995 Winter Seminar on Criminal Law
sponsored by the Los Angeles County Bar
Association, December 1995.
Lecturer at the “Capital Case Defense Seminar” sponsored
by California Attorneys for Criminal Justice, Long
Beach, February 1994.
I-15
Lecturer at “Defending Homicide Cases,” sponsored by
California Public Defenders Association, February
1993.
Lecturer at “Mental Issues and Defenses,” sponsored by
California Public Defenders Association, October
1991.
Lecturer at “Death Penalty Defense Seminar, “ sponsored
by California Attorneys for Criminal Justice,
Monterey, February 1990.
Lecturer at “Effective Criminal Trial Tactics,” sponsored
by Continuing Education of the Bar, Westwood,
February 1990.
Lecturer at 1989 California Public Defender Convention,
San Jose, April 1989.
Lecturer at California District Attorney’s Association
“Gang Violence” Seminar, February 1989.
Lecturer at “Death Penalty Defense Seminar,” sponsored
by California Attorneys for Criminal Justice, Pacific
Grove, February 1989.
APPENDIX J
Attorney Conrad Petermann
8306 Wilshire Blvd.
Suite 797
Beverly Hills, CA 90211
(323) 653-4779
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN MYERS CASE NUMBER:
Petitioner EDCV98-215FT(E)
Vs.
RE:
C.A. TERHUNE, Director, DECLARATION
California Department of OF DANNY E.
Corrections DAVIS
Respondent
I, Danny E. Davis of DDI-INVESTIGATIONS,
declare that the following facts are within my person
knowledge and that I could competently testify to them if
called upon to do so.
I am a California licensed Private Investigator,
California license number PI14472, and have functioned in
this capacity for the past ten years. Additionally, I am owner
of DDI-INVESTIGATIONS.
On Friday evening, February 26, 1999, at 9:00 p.m., I
left the crime scene and drove south on Hamner one block to
2" Street, then east to the freeway. I took the 15 freeway
north to the 10 freeway west. Then the 210 freeway to the
J-2
Lowell Street turnoff, to Tujunga Canyon north to Foothill.
Then west on Foothill to Mt. Gleason. Then north on Mt.
Gleason to Kyle and east on Kyle to 7702 Kyle Street. Time
was 1 hour, 4 minutes and 40 seconds. The mileage was 63
miles. | always drove at the approximate posted speed limit.
I then drove from the Kyle Street address west to Mt.
Gleason. Then south to Foothill and west to the 210 freeway.
I then took 210 freeway south back to the 10 freeway east to
the 15 freeway. Then the 15 freeway south to the 2™ Street
turn off. Then west to Hamner and north to the crime scene.
The return trip time was 1 hour, 1 minute and 23 seconds.
The mileage was 65 miles. Again I drove at the approximate
posted speed limit.
I declare under penalty of perjury and under the laws
of the State of California, that the foregoing facts are true and
correct to the best of my knowledge and that I signed this
declaration in Riverside, California on the 07" of March,
1999.
/s/ Danny E. Davis
DANNY E. DAVIS
APPENDIX K
a
a
i
-_ | | ee Te 2) Es VE Nee
TERT ace a I POTS en MAY TEE pee EWE Tae pet FAME RI aaa
SE aN Te oma ty Petey ety
Attorney Conrad Petermann
8306 Wilshire Blvd.
Suite 797
Beverly Hills, CA 90211
(323) 653-4779
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN MYERS
ne CASE NUMBER:
etitioner EDCV98-215FT(E)
Vs.
C.A. TE E, Di a
- — . na DECLARATION
_ i partment o OF JANET
Respondent oe ae
I, Janet Bourque (DOB: 02/10/54), living at 7702 Kyle
Street, Tujunga, California, declare that the following facts
are within my person knowledge and that I could competently
testify to them if called upon to do so.
On the evening of December 08, 1992, I arrived home
from the funeral of my husband’s father. Besides my husband
(Al), 2 or 3 family members were also at our house. They left
between 9:00 p.m. and 10:00 p.m. at which time I went to
bed. I do not recall seeing Alan Myers that evening. I did
not call Cynthia Myers that evening nor do I recall ever
calling Cynthia during the time Alan was living with us.
K-2
I declare under the penalty of perjury and under the
laws of the State of California, that the foregoing facts are
true and correct to the best of my knowledge and that I signed
this declaration in Tujunga, California on the 06" of March,
1999.
JANET BOURQUE
APPENDIX L
Attorney Conrad Petermann
8306 Wilshire Blvd.
Suite 797
Beverly Hills, CA 90211
(323) 653-4779
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALAN ae CASE NUMBER:
etitioner EDCV98-215FT(E)
Vs.
C.A. TERHUNE, Di ve
aoe , ten , DECLARATION
Zo weer Department o OF ALFRED
Respondent ee
I, Alfred Bourque (DOB: 08/16/58), living at 7702
Kyle Street, Tujunga, California, declare that the following
facts are within my person knowledge and that I could
competently testify to them if called upon to do so.
On the evening of December 08, 1992, I arrived home
from my father’s funeral. Besides my wife (Janet), 2 or 3
family members. were also at our house. They left between
9:00 p.m. and 10:00 p.m. Between 9 and 10 and while the
family members were still at our house, I recall Alan Myers
coming in and walking past us to his bedroom. I do not recall
seeing him the rest of the evening. After the family left I went
to bed. I did not call Cynthia Myers that evening nor do |
L-2
recall ever calling Cynthia during the time Alan was living
with us. !
I declare under the penalty of perjury and under the
laws of the State of California, that the foregoing facts are
true and correct to the best of my knowledge and that I signed
this declaration in Tujunga, California on the 06" of March,
1999.
/s/ Alfred Bourgue
ALFRED BOURQUE
APPENDIX M
M
Fourth Appellate District, Division Two, No.
E016578/E020323
S$062347
IN THE SUPREME COURT OF CALIFORNIA
SUPREME COURT
FILED
SEP -3 1997
Robert Wandruf Clerk
DEPUTY
THE PEOPLE, Respondent
v.
ALAN RICHARD MYERS, Appellant
IN RE ALAN RICHARD MYERS On Habeas Corpus
Appellant’s petition for review DENIED
/stamp/ GEORGE
Chief Justice
RNC RENE MRE
APPENDIX N
N-1
SUPREME COURT OF CALIFORNIA
JOHN C. Ross
ASSISTANT CLERK /ILLEGIBLE/
ADMINISTRATION LOS ANGELES
SAN FRANCISCO 90012
ROBERT D. RONALD REAGAN
BARROW BUILDING
CHIEF DEPUTY 300 SOUTH SPRING
LOS ANGELES STREET
BRIAN 213 897 5158
CLEARWATER SACRAMENTO
CALENDAR 95814
COORDINATOR /ILLEGIBLE/
SAN FRANCISCO
ROBERT F. WANDRUFF
COURT ADMINISTRATOR AND
CLERK OF THE SUPREME COURT
June 27, 1997
Office of the Attorney General
110 West A Street, Room 600
San Diego, CA 92101
Re: $062347—In re Alan Richard Myers on
Habeas Corpus: Petition for Review
Dear Counsel:
Pursuant to rule 60 of the California Rules of Court,
the court has directed that I request an informal response to
the above referenced matter, petition served on your office
by mail on June 20, 1997. Please address the merits of the
N-2
issues previously raised in petitioner’s petition for writ of
habeas corpus in the Court of Appeal. The response is to
be served upon petitioner and filed in this court on or
before July 18, 1997. Petitioner will then have ten (10)
days in which to serve and file a reply to the informal
response.
Please be advised that the instant petition is a
petition for review, and a ruling by the court is due on or
before August 22, 1997. This request for an informal
response should be expedited by your office, and no
requests for extension of time are contemplated.
Very truly yours,
ROBERT F. WANDRUFF
Court Administrator and
Clerk of the Supreme Court
By: Bridget A. Newman
Deputy Clerk
myers.doc
cc: Conrad Petermann, Counsel for Petitioner
Rec.
Reg.
APPENDIX O
NOT FOR PUBLICATION
COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA
FILED
May 21, 1997
COURT OF APPEAL FOURTH DISTRICT
THE PEOPLE
’ 78
Plaintiff and Respondent ‘ae mito
v.
ALAN RICHARD MYERS oe
Defendant and Appellant OPINION
In re ALAN RICHARD MYERS
E020323
On Habeas Corpus (Super.Ct.No.
CR 51809
APPEAL from the Superior Court of Riverside County.
Robert G. Spitzer, Judge. (Judge of the Municipal Court,
assigned by the Chief Justice pursuant to art. VI, § 6 of the
Cal. Const.) Affirmed.
ORIGINAL PROCEEDING; petition for the writ of habeas
corpus, Riverside County, Robert G.. Spitzer, Judge.
Petition denied.
Conrad Petermann, under appointment by the Court of
Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson,
Chief Assistant Attorney General, Gary W. Schons, Senior
O-2
Assistant Attorney General, Janelle B. Boustany and Keith
I. Motley, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Alan Richard Myers appeals his
conviction of the first degree murder of Michael Roy
Norris, with a special circumstance finding that the murder
was committed while lying in wait. (Pen. Code, §§ 187,
190.2, subd. a)(15).) Defendant contends the evidence was
insufficient to sustain either his conviction or the special
circumstance finding. He also argues that the court below
erred in denying motion for a new trial, that his trial
counsel was incompetent for filing to investigate additional
witnesses, and that the court should have instructed on a
lesser included offense. We reject all defendant’s
contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Mike Norris and his mother owned a motorcycle
shop in Norco. On the evening of December 8, 1992,
Norris’s mother left at approximately 7:10 p.m. At
approximately 7:45 p.m., Norris telephoned Jeanne
Merced, at whose residence he was then living. He told her
he had two motorcycles to finish up, and that he might be
home late. He might even spend the night at the shop if the
work took too long. At approximately 7:50 p.m., Norris
spoke by telephone with a friend, Charles Freeman.
Freeman invited Norris to come for dinner. Norris told
Freeman he would be finished at the shop in 20 minutes
and would be over after that. That was the last
communication anyone had with Mike Norris.
The On Guard security agency had its offices in the
same complex as Norris’s motorcycle shop. On December
8, 1992, just before midnight, one of the security
employees found Norris’s body lying in the parking lot
O-3
behind the motorcycle shop. Norris had been shot once in
the back of the head. There was no tattooing around the
wound.
Robbery was not the apparent motive. Norris’s
truck keys were in his hand. His truck was in the parking
lot. He still had his wallet, containing $70 and 13 credit
cards. He had an additional $40 in his jacket pocket. There
was no evidence that anything in the motorcycle shop had
been disturbed or taken.
The medical pathologists testified the death
occurred sometime during a four-hour period between 8
p.m. on December 8 and midnight on December 9.
Defendant ultimately became a suspect because the
victim, Mike Norris, and defendant’s wife, Cynthia Myers,
were involved in a clandestine romantic relationship.
Defendant married Cynthia Myers in 1985. In May
of 1991, they moved to Santa Clarita. In June 1991, during
a trip to Mammoth, Cynthia met Mike Norris. They began
seeing each other; Cynthia kept the relationship a secret
from defendant. Norris was also married. He separated
from his wife, Debra, in February of 1992.
By June of 1992, defendant suspected his wife was
having an affair. She was making and receiving many
telephone calls, and there were many late night telephone
calls that would disconnect whenever the defendant
answered. Defendant remembered that Cynthia had
encouraged him to take a business trip to Colorado over the
New Year holiday. He suspected that Cynthia had arranged
a rendezvous with her lover in his absence. Defendant
confided his suspicions to his best friend, Alfred Bourque.
Cynthia was going on a trip with her family in June of
1992. Defendant told Borque that, while she was away, he
planned to order their telephone records to find out who
Cynthia was calling.
0-4
When defendant received the telephone records, he
noticed several repeated telephone numbers. These
numbers corresponded to piaces that Mike Norris was
living and to the motorcycle shop. Defendant called the
numbers that appeared most frequently on the bills. He
later determined that Cynthia had been calling Michael
Norris. When Cynthia returned home, defendant
confronted her with the telephone records. Cynthia
claimed that Mike Norris was just a friend that she was
helping through a divorce. Defendant did not believe her.
He later admitted to Detective Spidle that, despite
Cynthia’s denials, defendant believed she was having an
affair.
In July of 1992, defendant moved out of the family
home and stayed with Alfred and Janet Borque. However,
defendant often would babysit his children on evenings that
Cynthia had classes, and would sometimes spend the night.
After defendant moved into their house, the
Borques discovered that defendant was an alcoholic. In the
evenings, defendant would come home from work and
would frequently be passed out on the couch by 8 or 9 p.m.
Alfred Borque found an empty vodka bottle in the cushions
of the couch where the defendant slept. The Borques had a
full liquor cabinet when defendant moved in; it was
emptied by September or October of 1992.
Defendant later admitted to Detective Spidle that he
had been drinking heavily during the period of time of his
separation from his wife, through the fall of 1992. He told
Spidle he was a closet alcoholic, that he would not drink in
front of others but drank secretly. He had been a closet
alcoholic during his marriage with Cynthia. Defendant
started attending Alcoholics Anonymous (AA) meetings in
late October of 1992, but he was again drinking after the
murder, in mid- to late December.
0-5
Defendant also experienced financial difficulties
during the fall of 1992. Heavy rains limited his work as a
building inspector and masonry construction worker.
Defendant confided in his friend, Alfred Bourque,
about Cynthia’s affair with Norris. Defendant told Borque
that if Cynthia was sleeping in his bed with another man,
that would be “one of the lowest” things she could do.
Defendant “did not know what he would do” if he ever
found out that was happening. Defendant did not think he
would be “able to handle it.” Defendant wanted to confront
Cynthia’s lover, and tell him how he was “messing up”
defendant’s life and family.
Borque counseled against such a face-to-face
meeting, saying it was “not a good idea,” that “things could
get out of hand,” and defendant did not know “what size”
Norris might be.
Both Alfred and Janet Borque testified that the
defendant was not a violent person, and that he seemed sad
or hurt, but not angry or rageful when he talked about
Cynthia. :
In September 1992, defendant took a trip in a four-
wheel-drive vehicle. He was gone for three days. Alfred
Borque saw defendant with a gun case as he prepared to
leave for the trip. Bourque never saw the gun case again.
According to telephone company records, Norris
made 25 calls to the Myers residence between November a
1991, and June 17, 1992. A call went from the Borque
residence, where the defendant was living, to Norris’s
residence on July 7, 1992, at 10:38 p.m. A call was placed
to the motorcycle shop on July 17, 1992, at 4:31 p.m.
Defendant apparently called Norris’s residence again on
August 14, 1992, at 3:06 p.m. There were two calls from
the Borque residence to the motorcycle shop on November
25, 1992 at 4:51 p.m. for three minutes, and at 4:56 p.m. for
10 minutes. Between November 21, 1992, and December
0-6
7, 1992, the day before the murder, five calls went from the
Borque residence to Norris’s residence.
On the night before the murder, Cynthia and Norris
talked on the telephone for 90 minutes. Defendant tried to
call Cynthia, but she ignored him.’ Suspecting that Cynthia
was talking to Norris, defendant called Norris’s number.
That line was also busy. Defendant called Norris’s number
several times until the call finally went through; defendant
hung up when a male voice answered. Defendant admitted
he was angry with both Cynthia and Norris. Although he
claimed he did not learn of Norris’s death until December
11, 1992, defendant never called Norris’s number again
after December 7, 1992.
During the investigation of Norris’s rr"
Detective Spidle learned that Norris had a relationship with
Cynthia Myers, defendaiit’s wife. In the course of the
interview with Cynthia, Detective Spidle found out that
defendant owned a handgun. It was kept in a closet or
cupboard at the Santa Clarita residence. Detective Spidle
asked Cynthia to call him with the serial number from the
gun. Cynthia remarked that she did not like guns but would
get a neighbor, who was a police officer, to obtain the
information from the gun.
The next day, defendant telephoned Detective
Spidle without being asked. He gave Detective Spidle the
information on the gun. Registration records confirmed
that defendant owned a .38-caliber Ruger revolver.
In February of 1993, Detective Spidle found out
that a red truck like the one defendant owned had been seen
near the motorcycle shop on the night of the killing. He
asked defendant to come in, and to bring his gun.
Defendant agreed to come, but later called an canceled the
Apparently, Cynthia had a call-waiting feature on her
telephone which let her know when another call was incoming while
she was on the line.
—
O-7
appointment. When defendant told Detective Spidle he
would not come in to be interviewed, Detective Spidle told
defendant he would meet defendant that night.
Detective Spidle interviewed defendant at the
Borque residence on February 10, 1993. During the
interview, he asked defendant to get his handgun.
Defendant went to the room where he was staying, but
returned, saying the gun was not there. He claimed he last
remembered seeing the gun in September or October, when
he went shooting in the desert. If that were the case,
Detective Spidle asked, how had defendant called in the
serial number from the gun in December? Defendant
claimed he had had the information written on a piece of
paper in his wallet, because he had considered pawning the
gun. He also claimed he had since lost the piece of paper.
Although the bullet that killed Norris was
fragmented, forensic information established it was either a
.38-caliber or .357 magnum bullet. Defendant’s gun was
one of about 50 models capable of firing the fatal bullet.
Although defendant was aware of the importance of finding
his gun, he admitted at trial that he never asked his wife or
friends to help look for it.
Defendant owned a distinctive red truck. Jeep
Comanches are pickups that were manufactured only
between 1986 and 1989. The original owner of the truck
had added custom wheels and bumpers, and had a lift kit
put on the truck. The exhaust system had been modified,
and was louder than normal. He sold the truck in May of
1992. Defendant later bought the truck.
Roy Holden was a mechanic at the motorcycle
shop. About six weeks after the murder, he remembered
some information he believed might assist the
investigation. He told Detective Spidle that he had left
work at approximately 6 p.m. on December 8, 1992. While
sitting in his car, he noticed a vehicle drive slowly past
him. At first, Holden recalled the vehicle was a red Jeep
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‘ Cherokee with a tarp or canopy on it. After further
reflection, he realized it was a red Jeep Comanche with a
camper shell. The Jeep made a rumbling noise as it idled
by. Holden saw the Jeep go to the far rear of the parking
lot, and back up into a space by the back fence. ‘Holden
thought that was unusual, as there were many parking
spaces closer to the businesses in the complex. The Jeep’s
lights went out, but Holden did not see anyone get out. The
Jeep had two doors, shiny wheels, and tinted windows on
the camper shell. Holden remembered the vehicle as being
lower than normal. Holden did not know anything about
the suspects or vehicles involved in the case when he
volunteered his information.
David McGill also worked at the motorcycle shop.
When police initially interviewed him, they showed him
photographs of defendant and of defendant’s red truck.
McGill did not recognize defendant at that time. Six
months to a year later, McGill realized that he had seen the
person in defendant’s photograph before. McGill
remembered that, one or two weeks before the murder,
defendant came into the motorcycle shop. Defendant asked
if “Michael Norris” was there. McGill thought this was
unusual because no one ever called Mike Norris “Michael.”
McGill told defendant he would summon Norris for him;
defendant stated, “that’s what he needed to know,” and left.
In March of 1994, Detective Spidle showed McGill a
photographic _ lineup. McGill selected defendant’s
photograph.
Within a week after the homicide, the owner of the
security business found an empty vodka bottle in the
landscaped area of the parking lot. The bottle was in good
condition, suggesting it had not been there long.
Scott Hill, a patrol officer for the security company,
told police he had seen a red Jeep Comanche in the parking
lot approximately two or three weeks before the killing.
Police showed Hill photographs of a number of vehicles.
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Hill identified defendant’s red Jeep Comanche as the
vehicle he had seen. Hill recognized the truck because a
Jeep pickup was unusual, and because of the distinctive
camper shell. Hill used to work for the manufacturer of
that particular camper shell.
Defendant denied he had ever visited the
motorcycle shop. Defendant claimed he knew the
motorcycle shop was located in Norco because of Cynthia’s
calls to the shop he had seen on the telephone bills.
However, telephone records listed the location of the
motorcycle shop number as Corona or Arlington.
Evidence was presented at trial that defendant
appeared jealous of his wife’s relationship with others.
After defendant moved out of the Santa Clarita house,
Cynthia rented a room to a college student, Brian Moyer.
Sometime between December 1992 and February 1993,
after the homicide, there was a party at the house while
defendant was present. Moyer’s friend, Mark Lorenzana,
attended the party. During the course of the evening,
Lorenzana and Cynthia flirted with each other. Three or
four days later, defendant had made a point of finding out
where Lorenzana worked, and accosted Lorenzana outside
his workplace. Defendant told him that what Lorenzana
had done at the house was wrong, and that defendant did
not want Lorenzana to visit Moyer at the house any more. -
: In March of 1993, Joesph Kenworthy contacted
Cynthia to ask if she would accompany him to an awards
dinner some weeks later. Kenworthy arranged to meet
Cynthia first, and they agreed to have dinner. Cynthia told
Kenworthy that her ex-husband was watching the children
and, 10 avoid an unpleasant scene, arranged to meet
Kenwoiihy at another location. Kenworthy returned
several weeks later to pick up Cynthia for the awards
banquet. Kenworthy noticed a red truck, with a man and
two children, stopped at a stop sign. The truck was still at
the stop sign when Kenworthy again passed that location
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some minutes later. When Kenworthy took Cynthia home
later that night, the same red truck was parked in Cynthia’s
driveway. Cynthia told Kenworthy the truck belonged to
her husband.
Defendant denied any involvement in the killing.
He presented an alibi defense. He testified that he got off
work shortly after 3 p.m. on December 8, 1992. He went
home to the Borque residence where he took a shower and
left again at approximately 4 p.m. He stopped to get some
food, and then went to a park. As he sat in the parking lot,
defendant ate, read a book, and napped. He was at the park
for about three hours. While he was at the park, Cynthia
paged him. Defendant went to a pay telephone and
returned her call. Although defendant normally used a
telephone card when calling from a pay telephone, on this
occasion he used change to call Cynthia.
At approximately 7:25 p.m., defendant left the park
to go to an 8 p.m. AA meeting. Defendant did not
remember speaking to anyone on his way into the meeting
hall. He also did not remember what he did at the break.
He did not participate in the meeting. About 50 to 70
people attended the meeting. No rosters were kept of who
attended the meeting. The meeting ended at approximately
9:30 or 9:45 p.m. Defendant spoke with another AA
member, Mike Barbarino, after the meeting. Then
defendant went home to the Borque residence.
When Detective Spidle interviewed him, defendant
had provided the detective with the names of several people
who attended the AA meeting. Spidle contacted several of
them, but none, other than Barbarino, was able to provide
an alibi for the defendant. ;
Barbarino testified that he saw defendant after the
meeting on December 8, 1992, perhaps as late as 9:45: p.m.
The prosecutor impeached Barbarino’s testimony that he
saw defendant at the AA meeting. When Detective Spidle
first interviewed Barbarino, Barbarino did not remember
‘
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who defendant was. The prosecutor also played a taped
interview with Barbarino. Barbarino at first said he had
seen defendant at 7:35 p.m. on December 8, but when
Detective Spidle tried to test his recollection, Barbarino
became uncertain at what point on December 8 he had seen
defendant. Barbarino admitted he might not have talked to
defendant until after the meeting.
Barbarino’s wife also testified in rebuttal. She
stated that she attended the AA meetings with her husband,
but she had not met defendant by December 8, 1992. In
fact, she did not recall meeting defendant until after
February.
The prosecutor attacked defendant’s alibi, but also
presented evidence that the meeting hall was 55 minutes
away from the crime scene. Even if Barbarino had seen
defendant after the meeting at 9:45 p.m., defendant could
have been at the motorcycle shop as late as 8:55. Norris
was killed sometime after 7:50 p.m., when he talked to
Charles Freeman.
The prosecutor also obtained the telephone records
from the pay telephone defendant said he had used to return
Cynthia’s page on the afternoon of December 8. The
records of calls did not substantiate that defendant had
made a call from that telephone as he had claimed.
_ Defendant was tried for the murder of Mike Norris
after the grand jury returned an indictment accusing him of
the crime. The indictment further charged that defendant
had used a handgun in the commission of the offense, and
included a special circumstance allegation that the murder
had been committed while lying in wait.
Defendant’s first trial resulted in a hung jury. Upon
retrial, the jury found defendant guilty of first degree
murder, and found the firearm and special circumstance
allegations true. The court denied defendant’s motion for a
new trial. Defendant received a determinate term of four
years for the firearm enhancement, plus a life term without
Re ae
SGU ike ELE ee RicLIMIOS 52 SFC IR ES
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possibility of parole for special circumstance murder.
Defendant now appeals.
DI SSION
I. Sufficient Evidence rts the Jury V
Defendant first contends the evidence was sufficient
to support neither his conviction of murder, nor the special
circumstances finding of lying in wait. We disagree.
“We need not be convinced beyond a reasonable
doubt that the murders were premeditated. Our inquiry on
appeal ‘in light of the whole record [is] whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ (People v. Davis
(1995) 10 Cal.4" 463, 511 [41 Cal.Rptr.2d 826, 896 P.2d
119] [hereafter Davis}; see Jackson v. Virginia (1979) 443
U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct.
2781].) The standard of review is the same when the
People rely mainly on circumstantial evidence. (People v.
Stanley (1995) 10 Cal.4™ 764, 793 [42 Cal.Rptr.2d 543,897
P.2d 481]; see also People v. Bean (1988) 46 Cal.3d 919,
932 [251 Cal.Rptr. 467, 760 P.2d 996] [conviction based on
circumstantial evidence will be affirmed if circumstances
reasonably justify trier of fact’s findings].)” (People v.
Sanchez (1995) 12 Cal.4" 1, 31-32.)
The evidence presented to the jury showed motive,
opportunity, and consciousness of guilt. (People v. Daya
(1994) 29 Cal.App.4"™ 697, 709.) The victim was having an
affair with defendant’s wife. Defendant was
understandably upset about this; he was angry both with
Cynthia and with Norris. Other evidence showed
defendant to be jealous of his wife’s attentions to others;
defendant went to length of tracking down Mark Lorenzo at
his place of business to warn him off, after a casual
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encounter between Cynthia and Lorenzo. There was
substantial evidence of motive.
Defendant denies the evidence was sufficient to
_ Show opportunity; he focuses on only part of the evidence,
‘insisting that the killing must have taken place close to
midnight, rather than nearer to 8 p.m.,’ and that his alibi
was “substantiated” on and after 8:30 p.m. on December 8.
Defendant ignores the expert testimony, which
could not place the time of death more specifically than a
four-hour window between 8 p.m. and midnight, even
when rigor mortis was taken into account.
Further, the evidence as a whole did not
conclusively, or even certainly, establish any alibi for
defendant. Only one person in the 50 to 70 who attended
the AA meeting remembered the defendant, and that
witness’s wife testified that she did not meet defendant at
all until the following February. Defendant’s story about
his whereabouts and activities on the day of the murder was
not substantiated. He could not prove he was at the park, as
he said, until the time of the AA meeting. Telephone
records did not support defendant’s assertion he used a pay
phone as he claimed. Even if defendant’s alibi witness
were believed, no one saw him at the AA meeting until
perhaps as late as 9:45 p.m. A motorcycle shop employee
placed defendant’s truck in the parking lot at 6 p.m. on the
day of the murder. Defendant’s alibi was altogether
, At the time the body was discovered, it was not clear whether
the victim was deceased. Paramedics tried to resuscitate Norris. There
was evidence that chest compressions forced blood from Norris’s nose.
It was very cold that night, and “steam” could be seen rising from the
body. There was also testimony about rigor mortis; movement in the
small muscles of the victim’s jaw at the time he was discovered
possibly indicated an absence of rigor mortis. Rigor mortis can be
delayed by cold temperature; it is normally perceptible from two to four
hours after death.
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doubtful, and even if credited by the jury, did not preclude
defendant’s opportunity to commit the murder.
Defendant also had the means to commit the
murder. Although the bullet that killed the victim was
fragmented and unsuitable for exact matching, it could be
analyzed sufficiently to show it was fired by one of about
50 or so modeis on the market. Defendant happened to
own just such a handgun. Defendant’s gun disappeared
without any real explanation, and thus was unavailable for
ballistic tests. In addition, although def
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