Appendix — Woodford v. Jennings
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IN THE SUPREME COURT OF THE UNITED STATES
JEANNE WOODFORD, Warden, Petitioner,
v.
MICHAEL WAYNE JENNINGS, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
BILL LOCKYER
Attorney General of the State of California
MANUEL M. MEDEIROS
Solicitor General
ROBERT R. ANDERSON
Chief Assistant Attorney General
RONALD A. BASS
Senior Assistant Attorney General
DANE R. GILLETTE
Senior Assistant Attorney General
[Counsel of Record]
JOHN H. DEIST
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5855
Fax: (415) 703-1234
Counsel for Petitioner
2 CREE ATI RN MENEER RE ON ELE ET G0 PLG ET TPES PF Re oo 3
7 i 7 ,
CAPITAL CASE
INDEX
A. Opinion of the United States Court of Appeal
for the Ninth Circuit filed May 10, 2002
B. Order of the United States Court of Appeals
for the Ninth Circuit filed June 19, 2002
C. Judgment Denying Petition for Writ of Habeas
Corpus from the United States District
Court - Northern District of California dated
February 17, 2000
D. Opinion of the California Supreme Court
filed September 19, 1988
l
26
50
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL WAYNE JENNINGS,
Petitioner-Appellant,
v.
JEANNE WOODFORD,
Warden of the California State Prison
at San Quentin,
Respondent-Appellee.
No. 00-99008
D.C. No. CV-89-01360-WAI
OPINION
Appeal from the United States District Court
for the Northern District of California
William A. Ingram, District Judge, Presiding
Argued and Submitted,
| September 25, 2001 -- San Francisco, California
Filed May 10, 2002
Before: Betty B. Fletcher, Thomas G. Nelson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge B. Fletcher
COUNSEL:
Gilbert Eisenberg and Marianne D. Bachers, San Francisco,
California, for the petitioner-appellant.
John Deist, California Attorney General, San Francisco, California,
for the respondent-appellee.
OPINION
B. FLETCHER, Circuit Judge:
In February 1984, a jury in Contra Costa County, California,
convicted Michael Wayne Jennings of first degree murder, forcible rape,
first degree burglary, and robbery. Afier finding that Mr. Jennings had
intentionally committed the murder during the commission of the rape,
burglary, and robbery - a special circumstance permitting capital
punishment - the jury voted to impose the death penalty. Mr. Jennings
appeals the district court's denial of his petition for a writ of habeas
corpus. He seeks reversal of both his sentence and his conviction.
Mr. Jennings claims his trial counsel was unreasonably and
prejudicially ineffective under the standard set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), by
failing to investigate or present mental health defenses in either the guilt
or penalty phases of his capital trial. He further argues that his trial
counsel was constitutionally ineffective because of multiple conflicts of
interest. Because the State provides no basis upon which to conclude
that a reasonable tactical decision motivated trial counsel's abject failure
to discover and consider vast and easily obtainable information about
Mr. Jennings' fragile and failing mental health - information that would
have made a non-first degree conviction reasonably probable - we find
that Mr. Jennings was deprived of the effective assistance of counsel
guaranteed by the Sixth Amendment during the guilt phase of his trial.
Because we reverse based on guilt phase ineffectiveness, we need not
reach questions about counsel's conflicts of interest or incompetence
during the penalty phase. We reverse both Mr. Jennings’ death sentence
and his conviction and remand with instructions to grant the writ unless
the state decides to retry Mr. Jennings.
FACTUAL BACKGROUND
I. Violet Newman's Murder
Sixty-three-year-old Violet Newman died on August 7, 1982 after
withstanding multiple traumatic injuries during a rape and apparent
robbery. Among other gruesome injuries, Ms. Newman suffered fourteen
stab wounds to the chest and abdomen, a severed carotid artery and
jugular vein, bruising and abrasions consistent with rape, and ligature
marks suggesting she was bound with rope by her neck and ankles.
Substantial circumstantial evidence connected Michael Wayne
Jennings to the crime. Specific evidence underlying the prosecution's
guilt case included the following: ~
: Mr. Jennings had known the victim for much of his life,
having lived next door to her at his parents' home and grown
up with her children.
° Strapping tape found in Ms. Newman’s home bearing Mr.
Jennings’ thumb and palm prints matched tape found in his
pickup truck.
° The truck also contained rope identical to some found near the
victim and appeared to match ligature marks on her neck and
ankles.
° Police found a piece of Ms. Newman's answering machine and
blood matching hers in Mr. Jennings' truck.
1. See People v. Jennings, 46 Cal.3d 963 (1988).
° Mr. Jennings, a secretor,” had had a successful vasectomy
several years before the murder. Aspermatic semen containing
antigens consistent with his blood was found on the victim.
° Someone made a phone call from the victim's home at 2:19
a.m. to a Ms. Joanne Boechne, a friend and former girlfriend
of Mr. Jennings unknown to the victim. Mr. Jennings had tried
to reach Ms. Boechne earlier in the evening.
° Several hours after the murder, a wet Mr. Jennings reported to
friends that he had taken a whirlpool bath. Ms. Newman
owned a whirlpool tub.
. On the night of the murder, Mr. Jennings lost a knife whose
blade length was consistent with the victim's stab wounds.
° Mr. Jennings volunteered facts about the crime that had not
been publicly released to both police and friends.
II. Investigation & Trial
On the night of the murder, petitioner attended a bachelor party at
which he took methamphetamine and consumed alcohol. Numerous
sources noted that he was an habitual, heavy methamphetamine user.
Although no witness could testify that Mr. Jennings had been at the party
all night, his trial counsel relied primarily on an alibi defense as well as
suggestions of an alternate perpetrator. In a surprise blow to the defense
that came to light only at trial, a mix-up regarding daylight savings time
prevented the defense from being able to establish an alibi for Mr.
2. “[AJn individual of blood group A, B, or AB who
secretes the antigens characteristic of these blood groups in
bodily fluids (as saliva)” Merriam-Webster On Line: Collegiate
Dictionary.(2002)htt://www.merriam-
webster.com/dictionary.htm (Apr. 25, 2002).
Jennings at the time the call to Ms. Boechne was placed from the
victim's home.
Apart from acknowledging Mr. Jennings’ drug use on the night of
the crime, Petitioner's trial counsel, Michael Oliver, did not present any
evidence during the guilt phase about his client's mental health despite
considerable evidence - detailed below - suggesting that drug use and
underlying mental problems contributed to Mr. Jennings’ actions and
mental state.
III. Jury Verdict & Subsequent History
The jury deliberated from the afternoon of February 7, 1984 to the
afiernoon of February 9, 1994 before finding petitioner guilty on all
counts. The penalty phase testimony and argument ended on February
27, 1984; the jury began deliberations that afternoon and returned a death
penalty verdict the following morning. The California Supreme Court
upheld the judgment. People v. Jennings, 46 Cal.3d 963, 251 Cal. Rptr.
278, 760 P.2d 475 (1988). The U.S. Supreme Court denied certiorari.
Jennings v. California, 489 U.S. 1091, 103 L. Ed. 2d 862, 109 S. Ct.
1559 (1989).
Ae AS LO. Meee ihe
) After the California Supreme Court denied his state habeas corpus
petition, Mr. Jennings petitioned for habeas corpus relief in the U.S.
District Court for the Northern District of California.
Respondent moved for summary judgment on April 29, 1994.
Petitioner subsequently moved for summary judgment on his conflict of
interest claim. On May 5, 1998, the district court issued a decision
denying Mr. Jennings’ Motion for Summary Judgment on the conflict
claim and granting summary judgment to Respondent on all but three
claims. The district court granted an evidentiary hearing on the three
remaining claims, through which petitioner alleged: (1) he received
ineffective assistance of counsel at the guilt and penalty phases; (2) he
was not competent to aid and assist counsel at trial; and (3) he was
impermissibly shackled at trial. We discuss facts adduced at the
evidentiary hearing with respect to Mr. Jennings’ ineffective assistance
of counsel claim in detail below.
Following a ten-day evidentiary hearing, Judge Ingram issued an
Order and Judgment denying Mr. Jennings habeas relief. Petitioner
timely filed a Notice of Appeal. The district court issued a certificate of
probable cause on the same day. The issues remaining on appeal are Mr.
Jennings' claims that he received ineffective assistance of counsel at both
the guilt and penalty phases of his trial because of (1) trial counsel's
failure to adequately investigate and present information about mental
health, drug abuse, and family background at both the guilt and penalty
phases of petitioner's trial and (2) trial counsel's numerous conflicts.
JURISDICTION
Because Mr. Jennings filed his notice of appeal after the effective
date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
appellate procedures created under AEDPA govern. Slack v. McDaniel,
529 U.S. 473, 478, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000). Pursuant
to 28 U.S.C. § 2253(c)(1), a generalized Certificate of Probable Cause
(CPC) like that issued by the district court in this case is no longer
sufficient to confer jurisdiction on this court. Instead, Fed. R. App. P.
22(b) authorizes us to issue a Certificate of Appealability (COA) with
respect to particular issues. Silva v. Woodford, 279 F.3d 825, 832 (9th
Cir. 2002). A COA in turn gives us jurisdiction over the merits in
accordance with 28 U.S.C. §§ 2253 and 2254.
Pursuant to Fed. R. App. P. 22(b)(2) we treat petitioner's appeal
from the district court's ruling as an application fora COA. Schell v.
Witek, 218 F.3d 1017, 1021 n.4 (9th Cir. 2000) (en banc). We may issue
a COA for any issue with respect to which petitioner makes a
"substantial showing of the deniai of a constitutional right." 28 U.S.C.
§ 2253(c)(2).
Ale Ol egy
The Supreme Court recognized in Slack v. McDaniel that the
"substantial showing" standard for a COA is relatively low and is the
same as the prior standard for issuance of a CPC apart from the
requirement that the court identify specific appealable issues. Slack, 529
U.S. at 483. This standard, articulated in Barefoot v. Estelle, 463 U.S.
880, 893, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983), permits appeal
where petitioner can "demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues [differently]; or
that the questions are adequate to deserve encouragement to proceed
further." Jd. at n.4 (internal quotation marks and citations omitted). The
Barefoot court noted that "in a capital case, the nature of the penalty is
a proper consideration in determining whether to issue a certificate of
[appealability]." /d. at 893. The court must resolve doubts about the
propriety of a COA in the petitioner's favor. Lambright, 220 F.3d 1022,
1025 (9th Cir. 2000) (en banc).
Pursuant to the foregoing standard and "taking a quick look at the
underlying merits," Lambright, 220 F.3d at 1028, we issue a COA with
respect to Mr. Jennings' allegation that his trial counsel failed adequately
to investigate and present considerable evidence regarding petitioner's
psychological and family history that might have (1) defeated the jury's
finding of the requisite intent for first degree murder in the guilt phase
or (2) provided sufficient mitigating evidence to warrant a sentence of
life rather than death in the penalty phase. If true, these allegations
amount to a denial of the constitutional right to the effective assistance
of counsel. See, e.g., Williams v. Taylor, 529 U.S. 362, 146 L. Ed. 2d
389, 120 S. Ct. 1495 (2000) (finding ineffective assistance where
counsel, for no plausible strategic purpose, failed to investigate records
of child abuse, borderline retardation, and possible brain damage);
Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) (finding
ineffectiveness where counsel delegated responsibility for psychiatric
investigation to law student, neglected to provide for complete
psychiatric examination, and failed to discover family history of mental
illness and child abuse). We find that the issues are debatable under the
Barefoot standard and therefore conclude that a COA is appropriate.
We also issue a COA with respect to Mr. Jennings' allegation that
he received ineffective assistance of counsel due to his attorney's
multiple alleged conflicts of interest. Under Cuyler v. Sullivan, 446 U.S.
335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), Mr. Jennings may
prevail on a Sixth Amendment claim if he demonstrates that (1) defense
counsel was actively representing conflicting interests and (2) the
conflict had an adverse effect on counsel's performance. Here, Petitioner
alleges that trial counsel's partnership with a conflicted attorney and his
prior representation of three testifying witnesses - Mr. Jennings’ ex-wife,
whom counsel represented in her divorce from Mr. Jennings, Mr.
Jennings' former sister-in-law, and a friend with whom Petitioner took
drugs - represented active conflicts that adversely affected counsel's
performance in a variety of ways. Where representation of different
clients is successive, a conflict may arise where cases are "substantially
related" or the conflict causes the attorney to "divide[]his loyalties."
Thomas v. Municipal Court of the Antelope Valley Judicial District of
California, 878 F.2d 285, 288 (9th Cir. 1989). Whether or not Mr.
Oliver's multiple representations were sufficiently related to Mr.
Jennings' trial to give rise to "active" conflicts is a debatable point upon
which reasonable jurists might disagree, and thus the COA threshold test
is met.
We decline to issue a COA with respect to Mr. Jennings' claim that
the district court erred by permitting psychiatrist Dr. James Missett to
testify at the evidentiary hearing held as part of that court's habeas
proceedings. Even if, as Mr. Jennings alleges, the district court's decision
to limit cross-examination regarding Dr. Missett's small claims suits to
recoup unpaid client fees was somehow in error, petitioner fails to show
how this would amount to a "substantial showing of the denial of a
constitutional right," and thus a COA is improper.
STANDARD OF REVIEW
We review a district court's denial of a petition for a writ of habeas
corpus de novo. Smith v. Stewart, 241 F.3d 1191, 1195 (9th Cir. 2001).
An ineffective assistance of counsel claim presents a mixed question of
law and fact and is reviewed de novo. Seidel v. Merkle, 146 F.3d 750,
753 (9th Cir. 1998). We review the district court's factual findings for
clear error. Jd.
Because Mr. Jennings initiated his appeal prior to AEDPA's 1996
effective date, that Act's more stringent requirements for habeas relief
do not apply to our review of the merits in this case. Lindh v. Murphy,
521 U.S. 320, 327, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). (As
discussed above, AEDPA does govern the requirement that this court
issue a COA.)
DISCUSSION
Petitioner argues that counsel's failure to conduct any investigation
into possible mental defenses was unreasonably ineffective and deprived
him of his Sixth Amendment right to the effective assistance of counsel
at both the guilt and penalty phases of his capital trial. With respect to
the guilt phase, respondent counters that counsel, Mr. Oliver, had
determined - in part as a result of petitioner's insistence on his innocence
- to pursue an alibi defense and thus did not need to investigate potential
mental defenses that would be inconsistent with an innocence claim.
Petitioner argues that, even if counsel ultimately did not present a
mental defense, he was obliged to conduct a reasonable investigation in
order to make a well-informed strategic decision not to present such
evidence. Mr. Jennings contends that evidence of his severe mental
health and drug problems may well have resulted in a second degree
murder or manslaughter conviction, obviating the need for a penalty
phase and ensuring that petitioner would not be put to death.” Because
3. Apparently trying to hedge his bets despite his
failure to present any experts or substantial testimony beyond an
acknowledgment that petitioner had used drugs on the night of
Ms. Newman’s murder, Oliver nonetheless requested and
received second degree murder and manslaughter instructions
for the jury’s consideration.
10
we agree with Mr. Jennings, we need not address ineffectiveness
arguments addressed to the penalty phase.
I. Strickland v. Washington and the Duty to Investigate
In McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d
763, 90 S. Ct. 1441 (1970), the U.S. Supreme Court declared that "the
right to counsel is the right to the effective assistance of counsel." Later,
in the 1984 case Strickland v. Washington, the Court laid out the now
familiar yardstick by which the effectiveness of counsel should be
measured. In Strickland, the Court propounded a two prong test whereby
a defendant claiming ineffective assistance of counsel must demonstrate
(1) that the defense attorney's representation "fell below an objective
standard of reasonableness," and (2) the attorney's deficient performance
prejudiced the defendant such that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 688, 694.
Elaborating on the requirements of Strickland’s first prong --
commonly known as the "effectiveness prong" - the Strickland Court
expressly declined to articulate specific guidelines for attorney
performance beyond highly generalized duties, including the duty of
loyalty, the duty to avoid conflicts of interest, the duty to advocate the
defendant's cause, and the duty to communicate with the client over the
course of the prosecution. Jd. The Strickland Court was adamant that
defense counsel's duties not be defined so exhaustively as to give rise to
a "checklist for judicial evaluation ... [because] any such set of rules
would interfere with the constitutionally protected independence of
counsel and restrict the wide latitude counsel must have in making
4. Strickland itself addressed defendant Washington’s
claim that his attorney — led in part by a sense of “hopelessness”
— rendered ineffective assistance by failing to investigate or
present mitigating evidence about the defendant’s background,
character, and mental state during the sentencing phase of
Washington’s trial. Strickland, 466 U.S. at 673.
1]
tactical decisions." /d. The court clarified that review of an attorney's
performance must be "highly deferential" and must adopt the counsel's
perspective at the time of the challenged conduct in order to avoid the
"distorting effects of hindsight." /d. at 689. A reviewing court must
"indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance ... [and] the defendant
must overcome the presumption that ... the challenged action 'might be
considered sound trial strategy.’ " /d. (citation omitted).
Construing the Sixth Amendment to guarantee not effective counsel
per se but a fair proceeding with a reliable outcome, the Strickland Court
concluded that demonstrating that counsel fell below an objective
standard of reasonableness alone is insufficient to warrant a finding of
ineffective assistance. In addition, in order to satisfy Strickland's second
prong the defendant must show that the attorney's sub-par performance
prejudiced the defense. /d. at 691-692. The defendant must affirmatively
prove prejudice. The test is whether there is a reasonable probability that,
but for the attorney's challenged conduct, the result of the proceeding in
question would have been different. The Court defined reasonable
probability as "a probability sufficient to undermine confidence in the
outcome." /d. at 694.
Applying its test, the Strickland Court made clear that "counsel has
a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary." Jd. at 691.
More recently, the Supreme Court in Williams v. Taylor, 529 U.S. 362,
146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000), reiterated the requirement
that a defense attorney conduct appropriate investigations, finding both
ineffectiveness and prejudice where counsel "failed to conduct an
investigation that would have uncovered extensive records graphically
describing Williams’ nightmarish childhood, not because of any strategic
calculation but because they incorrectly thought that state law barred
access to such records." Jd. at 395.
12
_
As our own precedent makes clear, an attorney's failure to
investigate may amount to constitutionally deficient performance in
either the guilt phase or the penalty phase of a capital case. See, e.g.,
Bloom y. Calderon, 132 F.3d 1267 (9th Cir. 1997) (holding counsel was
constitutionally ineffective due to failure to obtain psychiatric evidence
in a timely fashion and prepare a key psychiatric expert); Ainsworth y.
Woodford, 268 F.3d 868, 874 (9th Cir. 2001) (finding constitutionally
infirm performance where counsel "failed to adequately investigate,
develop, and present mitigating evidence to the jury even though the
issue before the jury was whether [the defendant] would live or die.").
Il. Counsel's Guilt Phase Performance
Mr. Jennings argues that Michael Oliver rendered constitutionally
ineffective representation during the guilt phase of Mr. Jennings' trial by
failing to investigate mental health and drug abuse issues that might have
raised reasonable doubt about Mr. Jennings' ability to form the requisite
intent to justify a first degree murder conviction and, by extension, the
possibility of the death penalty. We look first to Stricklana’s
effectiveness prong to determine whether Mr. Oliver's representation
was sufficient.
Prior to conflicting out of the case, Mr. Jennings’ first attorney,
Carol Babington, engaged Dr. Hjortsvang, a psychiatrist, to conduct a
preliminary interview with Mr. Jennings. Ms. Babington made it clear
in her testimony at the district court's evidentiary hearing that this
interview -- which lasted only two hours -- was meant to be preliminary
and was not meant to rule out any potential mental defenses. Instead, it
was meant as a preliminary assessment of Mr. Jennings' competency and
as a tool to establish a baseline for Mr. Jennings shortly after his arrest.
Mr. Oliver, who claims that Ms. Babington told him that petitioner
was "Okay," requested no further investigation and never spoke with Dr.
Hjortsvang in person until after the guilt phase of Mr. Jennings' trial.
13
Nor did he request copies of Mr. Jennings' voluminous medical
records.
Nor did he instruct Gail Cates, the paralegal to whom he delegated
preparation of the penalty phase, to inquire into possible child abuse in
the Jennings family.
Nor did he seek the appointment of additional experts to evaluate
Mr. Jennings' mental state or the possible effects of methamphetamine
on such a heavy, long-time user, despite the fact that Mr. Oliver knew a
syringe had been found in Mr. Jennings’ car and that he knew his client
had reported to the police that he had been "strung out on goddamn crank
for over a year. That's why I was having such a hard time remembering
what the hell I was doing and where."
Nor did he discuss the effects of Mr. Jennings' drug use with his
client or others who observed him under the influence of
methamphetamine.
Nor did he follow up on the report of Theresa Jennings - Mr.
Oliver's former divorce client and Mr. Jennings' former wife - that Mr.
Jennings had attempted suicide, that a psychiatrist had told her
ex-husband he was schizophrenic, and that she believed he was crazy.2
Nor did he investigate an incident - of which he had knowledge - in
which a judge ordered Mr. Jennings committed involuntarily for
psychiatric evaluation because he appeared catatonic.
5. Mr. Oliver was also privy to another apparent suicide
attempt as a result of his representation of Theresa Jennings in
her divorce proceedings against Mr. Jennings. In the 1976
divorce, the former Mrs. Jennings alleged that Mr. Jennings had
intentionally driven his car into a tree.
nn rnnmnernnrre es
A
Nor did he review stacks of medical records - subpoenaed by the
district attorney for review by a special master - save to be certain that
his client had, in fact, had a vasectomy.
Nor did he look into Mr. Jennings’ teenage commitment to a Boys'
Ranch for molesting an eight-year-old and a six-year-old.
Although he admits that his tactics might have been different had
he not been mistaken about the time of the call made to Ms. Boechne
from Ms. Newman's home - a mistake that destroyed an already weak
alibi defense - Mr. Oliver claims he did not conduct any investigation
into possible mental defenses because he had settled early on an alibi
defense. Although defense counsel is empowered to make such strategic
decisions, Strickland demands that such decisions be reasonable and
informed. Strickland, 466 U.S. at 691 ("Counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.").
The district court determined that Mr. Oliver had made a reasonable
and informed decision because it concluded that the defense attorney
lacked notice that Mr. Jennings had any mental problems and thus had
no reason to conduct an investigation. The district court relied on
Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), which held that,
where nearly twenty hours of mental health evaluation by defense
experts revealed no basis for a mental defense, defense counsel was
justified in his decision not to conduct further investigation into the
matter.
The district court inaccurately analogized the Hendricks fact
situation to that of Mr. Jennings. The Hendricks court acknowledged
what Strickland mandates: that attorneys have considerable latitude to
make strategic decisions about what investigations to conduct once they
have gathered sufficient evidence upon which to base their tactical
choices. In Hendricks, the attorney had hired experts who found no
evidence of mental disorders after lengthy examination specifically
geared toward finding any possible defenses. In the instant case, by
15
contrast, the testimony and declarations of Carol Babington, Dr.
Hjortsvang, and even Michael Oliver himseif indicate that Dr.
Hjortsvang's two hour interview of Mr. Jennings was very preliminary
and was not meant to specifically rule out mental defenses; Mr. Oliver
ruled out those defenses not because he concluded after reasonable
investigation that they were not viable, but because he settled instead on
an alibi defense and abandoned all investigation into psychiatric factors.
The district court went on to distinguish Turner v. Duncan, 158
F.3d 449 (9th Cir. 1998) and Seidel v. Merkle, 146 F.3d 750 (9th Cir.
1998). Turner did not deal with failure to investigate mental defenses,
but failure to investigate and prepare any defense in a murder case.
Turner, 158 F.3d at 456. The district court concluded that Jennings’
case could not be considered similar because Mr. Oliver's dereliction
with respect to the mental defense investigation was not as egregious as
Turner's attorney's because Mr. Oliver did have the benefit of a
psychiatrist's opinion - based on a two-hour evaluation - that Mr.
Jennings was competent to stand trial. The district court misconstrued
the standard Strickland imposes. We are not to determine whether it 1s
possible to find a worse attorney, but whether a particular defendant
received representation sufficient to satisfy the Sixth Amendment. The
fact that there are worse attorneys in the world does not change a bad
attorney's lack of diligence into a tactical choice.
Addressing Seidel v. Merkle, wherein we found trial counsel
ineffective for failing to investigate the defendant's mental state, the
district court focused on the fact that counsel in that case was on notice
that the defendant had mental problems. Seidel, 146 F.3d at 755. The
! district court found particularly significant the fact that the defense in
H Seidel relied on negating intent. /d. at 757. By contrast, the district court
found, the defense in Mr. Jennings’ case was that the defendant did not
commit the homicide at all.
This analysis misses the point. Mr. Oliver was obliged to
thoroughly investigate Mr. Jennings’ case in order to determine whether
a mental state defense might have been better than the alibi defense he
16
had "settled on" early. Moreover, the record makes clear that Mr. Oliver
was, in fact, on notice about Mr. Jennings' mental health and drug abuse
problems.
Mr. Oliver knew, for example, that Mr. Jennings was a long-term
methamphetamine addict who had used the drug on the night of the
homicide. Mr. Oliver knew his client had told police he had been "strung
out" on the drug for over a year. And that he had attempted suicide. And
that his ex-wife told police he was "crazy" and had been diagnosed as
schizophrenic. And that he had a long history of injuring himself
intentionally and pouring liquids in the resulting wounds, thereby
causing gangrene. And that he had been involuntarily committed by a
judge for psychiatric evaluation. And that he appeared to have been
coming off drugs during his videotaped interview with police. And that
the newly-minted paralegal Mr. Oliver had hired thought there was
something "seriously wrong" with Mr. Jennings. And that friends and
coworkers agreed.
Respondents correctly caution that we must consider the prevailing
legal norms at the time Mr. Oliver represented Mr. Jennings. Strickland,
466 US. at 689. They point once again to Hendricks v. Calderon, where
some twenty hours of expert examination revealed no basis for a mental
defense. In Hendricks, we held that, "certainly, in 1981, Hendricks’
attorneys did not believe they had any duty to investigate Hendricks'
social history in the face of the unanimous opinions of their own experts
that there was no basis for a mental defense." Hendricks, 70 F.3d at
1039. Even if we assume, as the district court concluded, that a correct
reading of Hendricks would excuse a failure to investigate where an
expert had only been called in to evaluate competence and had only met
with the defendant for two hours, as was true in Mr. Jennings' case, that
case is inapplicable for one simple reason: Mr. Jennings was not tried in
1981.
Mr. Jennings was tried in California in 1983. Shortly before Mr.
Jennings ' trial, the California Supreme Court decided People v. Mozingo,
34 Cal. 3d 926, 671 P.2d 363, 196 Cal. Rptr. 212 (Cal. 1983). The
Fo ioiecceeeknesenteisbnnnsnbtceneepnnemnnncmen
17
Mozingo court adopted a referee's finding that "a possible conflict
between a diminished capacity and an alibi defense would not excuse
counsel's failure initially to investigate the potential strengths of a
‘mental defense’ vis-a-vis an uncorroborated alibi defense." /d. 671 P.2d
at 367 (emphasis in original). Mozingo concluded that counsel's inaction
meant he could not have made informed tactical and strategic decisions,
and that "counsel's inadequate representation thereby deprived defendant
of a potentially meritorious defense or mitigating circumstance." /d.
Mozingo thus articulated an effectiveness standard for California
attorneys.
Not only was Mozingo available to Mr. Oliver, we know for a fact
that he was aware of the decision. In Mr. Jennings’ case, the prosecutor
actually brought Mozingo to the judge's attention, expressing concern
that Mr. Oliver had not properly investigated substantial medical records
and that the failure could provide grounds for appeal. Confronted with
the concern in open court, Mr. Oliver assured the court that he had
discharged his duty -- a statement that runs counter to Mr. Oliver's
admission that he did not in fact review any of the medical records save
those discussing his client's vasectomy.
We find that, even in 1983, the information Mr. Oliver
acknowledges he possessed would have put a reasonable attorney on
notice that he needed to investigate mental health and drug-related issues
more thoroughly when defending a client against a charge - first degree,
capital murder - for which raising a reasonable doubt as to intent could
be crucial. See, e.g., Seidel, 146 F.3d at 755-56. We also hold that the
district court clearly erred in finding that Mr. Oliver made a tactical
decision not to conduct any investigation into possible mental defenses.
It is within the realm of possibility - consistent with Hendricks - that it
would not have been ineffective to make a tactical decision to eschew a
mental defense had Mr. Oliver performed a thorough investigation and
consulted with his client. But Mr. Oliver did not make such an informed,
strategic choice. Because he settled on a very weak alibi defense before
conducting any investigation that might have led to a reasoned tactical
a NE ee
18
choice, Mr. Oliver was ineffective within the meaning of Strickland's
first prong.
But our analysis does not end here. We must determine whether,
had Mr. Oliver undertaken the necessary investigation, it is reasonably
probable that the outcome of Mr. Jennings’ trial would have been
different. Strickland, 466 U.S. 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052.
A reasonable probability does not mean that we must determine that the
jury more likely than nc: ~vould have returned a verdict for something
beside first degree murder, but only that Mr. Jennings has shown "a
probability sufficient to undermine confidence in the outcome." /d.
At the district court's evidentiary hearing, several witnesses testified
to what Mr. Oliver would have found had he undertaken a sufficient
investigation. Although Dr. Hjortsvang died prior to the evidentiary
hearing, his declaration addressing the significance of the information he
did not have when conducting his preliminary evaluation is also part of
the record.
Dr. Karen Gudiksen, a_ psychiatrist experienced with
methamphetamine users, testified about what a thorough psychiatric
evaluation - as opposed to the cursory, preliminary two hour exam Dr.
Hjortsvang was asked to perform - would have revealed for purposes of
the guilt phase. Because she focused on the first phase of Mr. Jennings'
trial, Dr. Gudiksen concerned herself with information that might have
negated the intent element of first degree murder and militated in favor
of a conviction for a lesser offense.
To conduct her examination, Dr. Gudiksen reviewed considerable
evidence available to Mr. Oliver and any experts he might have
employed for Mr. Jennings' trial, including police reports, the juvenile
court file, divorce files, military records, a life chronology, declarations
by family and friends, jail medical records, and a medical history she
characterized as "complicated and extensive." Through her investigation,
Dr. Gudiksen uncovered, a.nong other things, a documented family
EE A ENE oN
19
history of mental illness including paranoid schizophrenia and severe
alcoholism; consistent beatings of Mr. Jennings and his brothers by both
parents throughout the boys’ childhoods; molestation by both his
grandfather and his mother; and a pattern of self-mutilation that began
when Mr. Jennings was just six years old and that resulted in repeated
bouts of gangrene when Mr. Jennings exacerbated the wounds with
foreign agents such as toothpaste and battery acid.
Dr. Gudiksen's evaluation also revealed that, during the period
leading up to Ms. Newman's murder, Mr. Jennings - at least partly as a
result of his heavy methamphetamine use - was experiencing psychotic
symptoms including hallucinations, delusions, memory gaps and periods
of dissociation. Dr. Gudiksen concluded that the deleterious effects of
Mr. Jennings’ drug use worsened his underlying mental illness; with
respect to the latter, Dr. Gudiksen concluded that Mr. Jennings "began
the psychotic system of dissociating as a young boy. He probably
manifested the psychotic sign of limited range of affect at about the same
time. There were episodes of serious depression, with self-mutilations
and overt suicidal acts. His psychotic diagnosis best fits under the
category of schizoaffective disorder." Dr. Gudiksen concluded that, at
the time of the crime, Mr. Jennings was psychotic and dissociated. She
found that he could not form the intent to kill, rape, rob, or burglarize,
nor to premeditate or deliberate.
In his declaration, Dr. Hjortsvang explained the significance of the
information he did not have available when he conducted his preliminary
examination. After the fact, Dr. Hjortsvang reviewed Mr. Jennings’ life
history, declarations of family and friends, jail medical records, and the
declarations of Dr. Gudiksen and mitigation expert Dr. Mindy
Rosenberg. Referring to this information as "extremely important to
consider in reaching an accurate and reliable assessment of Michael
Jennings’ mental state at the time the crime occurred," he concluded that,
had he had the information when he first interviewed Mr. Jennings in
1982 and then met with him again just prior to the penalty phase, "it
likely would have caused me to reach a different conclusion about his
mental state." Dr. Hjortsvang told the court, "I am in agreement that at
OS. nce bee Bt ly 2
20
the very least, the amphetamine psychosis evidence could have been
presented as a guilt phase defense in this case."
In rebuttal, the state called a psychiatrist, Dr. James Missett. Dr.
Missett, who did not examine Mr. Jennings personally but did review all
the records, thought that Dr. Hjortsvang's notes evidenced a "relatively
complete" and "thorough" psychiatric exam. He also disputed Dr.
Gudiksen's determination that Mr. Jennings suffered from
schizoaffective disorder and amphetamine psychosis the night Ms.
Newman was killed. He also called into question Dr. Gudiksen's
conclusions that Mr. Jennings lacked the ability to deliberate and to form
the intent to commit the crime. Whether or not Dr. Missett's detailed
testimony is persuasive, neither his testimony nor Dr. Hjortsvang's nor
Dr. Gudiksen's was ever presented to a jury that could have weighed the
evidence and made its own determination as to Mr. Jennings’ mental
State.
In Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997), we addressed
a case similar to Mr. Jennings’. In B/oom, trial counsel had delegated the
investigation and preparation of mental defenses to a third year law
student (much as Mr. Oliver left penalty phase preparation in the hands
of a newly credentialed paralegal with no background in capital cases).
Id. at 1271-72. Although the attorney in Bloom at least presented a
psychiatric expert when his client faced three first degree murder charges
at trial, his failure to follow through on the law student's work resulted
in the psychiatrist having only 1.5 hours to talk with the defendant
pre-trial - roughly the same amount of time Dr. Hjortsvang had to
evaluate Mr. Jennings. /d. at 1272. On appeal, new counsel discovered
considerable evidence available to trial counsel, including a family
history of mental illness, child abuse, and spousal abuse; the defendant's
exposure to prescription drugs with psychiatric side effects; a
psychiatrist's recommendation that defendant receive inpatient care; and
a jail psychologist's finding that defendant suffered from hallucinations.
As Dr. Hjortsvang did in the instant case, the trial psychiatric expert
submitted a declaration post-sentencing saying he had been provided
insufficient information to make an accurate evaluation and that, upon
21
a
review of all the relevant information, he believed Mr. Bloom had a
mental disease that prevented him from appreciating the nature of his
actions. /d. at 1274. Like Dr. Hjortsvang, Mr. Bloom's psychiatrist
reported that the new information would have been "critical to any
reliable assessment of ... mental functioning at the time of the offenses
.. | viewed my original report as an effort to assess, on the basis of a
brief interview, [Defendant's] ability to stand trial and to formulate a
psychiatric diagnosis." /d. at 1274-75.
In Bloom, we concluded that trial counsel had been prejudicially
ineffective during the guilt phase. We held that, "the complete lack of
effort by Bloom's trial counsel to obtain a psychiatric expert until days
before trial, combined with counsel's failure to adequately prepare his
expert and then present him as a trial witness, was constitutionally
deficient performance. Counsel left the responsibility of obtaining and
preparing this key witness to a third-year law student who, due to
counsel's lack of diligence, had no idea what defense theory counsel
intended to pursue." Jd. at 1277. Quoting Sanders v. Ratelle, 21 F.3d
1446, 1456 (9th Cir. 1994), we found in Bloom that "describing
[counsel's] conduct as'strategic’ strips that term ofall substance." Bloom,
132 F.3d at 1277. We found that trial counsel put the defendant's mental
state at issue and that the defense depended at least in part on negating
the premeditation and malice necessary to justify a first degree murder
conviction. /d. at 1278.
In Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), we again found
counsel prejudicially ineffective for failing to conduct a reasonable
investigation of guilt phase mental defenses. As in the instant case,
Seidel's counsel made no investigation into his client's psychiatric history
despite "abundant signs in the record that Seidel suffered from mental
illness." Jd. at 755. We focused on counsel's duty under Strickland to
"make reasonable investigations or to make a reasonable decision that
. makes particular investigations unnecessary." /d. As we have done here,
| we concluded that counsel's inaction could not be viewed as "strategic"
where he "failed to conduct even the minimal investigation that would
have enabled him to come to an informed decision." /d. at 756.
22
Particularly relevant to Mr. Jennings’ case, in Seide/ we noted in our
discussion of prejudice that, "it 1s particularly curious that counsel
requested and received jury instructions for both voluntary and
involuntary manslaughter, but failed to present any evidence or argument
to support a manslaughter finding." /d. at 757. Mr. Oliver likewise
secured jury instructions for second degree murder and manslaughter,
but did not present any evidence at trial to cast doubt on Mr. Jennings'
ability to form the requisite intent for first degree murder.
We conclude that a reasonably effective attorney who had
undertaken an appropriately diligent investigation would likely have
opted for a mental defense strategy. Because Mr. Jennings’ alibi defense
was weak and uncorroborated, and given the wealth of mental health
and drug abuse evidence at the ready, effective counsel almost certainly
6. At the time of the homicide and Mr. Jennings' trial,
California defined degrees of murder as follows:
All murder which is perpetrated by means of a
destructive device or explosive, knowing use of
ammunition designed primarily to penetrate
metal or armor, poison, lying in wait, torture, or
by any other kind of willful, deliberate, and
premeditated killing, or which is committed in
the perpetration of, or attempt to perpetrate,
arson, rape, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act
punishable under Section 286, 288, 288a, or
289, is murder of the first degree; and all other
kinds of murders are of the second degree.
Cal. Pen. Code § 189 (1981). California defined manslaughter
as "the unlawful killing of a human being without malice" and
voluntary manslaughter as a manslaughter committed "upon a
sudden quarrel or heat of passion." Cal. Pen. Code § 192
(1981).
23
would have made an effort to raise reasonable doubt as to Mr. Jennings’
intent and his ability to undertake a "willful, deliberate, and premeditated
killing" and his ability to act with "malice." Cal. Pen. Code §§ 189 and
192 (1981).
We further find that it is reasonably probable that the jury - which
deliberated for two full days before rendering its guilty verdict despite
the overwhelming evidence that Mr. Jennings killed Ms. Newman -
would have returned a verdict for second degree murder or
manslaughter, both of which were presented as options, but neither of
which was argued or supported by the case Mr. Oliver presented.
Because the jury spent as long as it did deliberating, it is reasonably
probable that, apprised of all of the mental health and drug abuse
evidence, it would have found a reasonable doubt as to Mr. Jennings’
ability to form the intent required for a first degree murder conviction.
Although we cannot be certain that the result would have been different,
we find the probability of a different result "sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. Therefore, Mr.
Oliver's ineffective performance was prejudicial.
CONCLUSION
Michael Oliver's unreasonable failure to investigate psychiatric
evidence and possible medical defenses fell below the minimal standard
of effectiveness that can be reasonably expected of defense counsel. Mr.
Oliver's ineffective assistance prejudiced Mr. Jennings by depriving him
of the opportunity to help his counsel make informed judgments as to his
defense and potentially to have a defense presented that would have
7. Even had Mr. Oliver stuck to the alibi defense, had
he undertaken an appropriate investigation into Mr. Jennings'
mental health he may have been able to switch gears and
marshal an effective argument to save his case after the only
evidence corroborating the alibi unexpectedly evaporated at
trial.
PR PRES
A ERICA ARE SIE creo ona ee
24
negated the mental state necessary for a first degree murder conviction.
Because we reverse Mr. Jennings’ conviction as a result of Mr. Oliver's
ineffectiveness during the guilt phase, we do not reach Mr. Jennings'
penalty phase claim. Likewise, we do not determine whether Mr. Oliver's
conflicts of interest would also require reversal.
We reverse the district court's denial of a writ of habeas corpus,
vacate Mr. Jennings’ conviction, and remand to the district court with
instructions to grant the petition for a writ of habeas corpus unless the
State within a reasonable period grants a new trial.
REVERSED AND REMANDED WITH INSTRUCTIONS.
CONVICTION VACATED. REMANDED TO THE DISTRICT
COURT WITH INSTRUCTIONS TO REMAND TO THE STATE
COURT FOR A NEW TRIAL.
25
FILED JUNE 19, 2002
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL WAYNE JENNINGS,
Petitioner - Appellant,
V.
JEANNE WOODFORD, Warden of the
California State Prison at San Quentin,
Respondent - Appellee
No. 00-99008
D.C. No. CV-89-01360-WAI
ORDER
BEFORE: B. FLETCHER, T.G. NELSON, and BERZON, Circuit
Judges.
The panel has unanimously voted to deny the petition for rehearing.
Judges T.G. Nelson and Berzon voted to deny the petition for rehearing
and Judge B. Fletcher so recommended.
The full court has been advised of the petition for rehearing en banc
and no active judge has requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35.
The petition for rehearing is denied and the petition for rehearing
en banc is rejected.
26
Filed February 17, 2000
Richard W. Wieking
Clerk, U.S. District Court
Northern District of California
In The United States District Court
For the Northern District of California
MICHAEL WAYNE JENNINGS,
Petitioner,
V.
ARTHUR CALDERON, Warden,
CALIFORNIA STATE PRISON AT
SAN QUENTIN
No. C-89-1360-WAIT
JUDGMENT
The Petition for Writ of Habeas Corpus having come duly on for
consideration and having been considered as to all claims except Claims
4, 6, and 20 upon Motion for Summary Judgment and said Motion for
Summary Judgment having been granted in favor of Respondent as to
said claims and having been considered as to Claims 4, 6, and 20 by
means of evidentiary hearing and briefing and argument thereon and the
Application for the Writ having been also denied as to those claims,
IT IS ORDERED, ADJUDGED AND DECREED that the Petition
for Habeas Corpus is DENIED and the action is dismissed.
DATED: 2 17 00
/s/
WILLIAM A. INGRAM
United States District Judge
27
Filed February 17, 2000
Richard W. Wieking
Clerk, U.S. District Court
Northern District of California
In the United States District Court
for the Northern District of California
MICHAEL WAYNE JENNINGS,
Petitioner,
¥.
ARTHUR CALDERON, Warden of
California State Prison at San Quentin,
Respondent.
No. C-89-1360 WAI
ORDER DENYING WRIT OF
HABEAS CORPUS
INTRODUCTION
Pending before this court are Claims 4, 6, and 20 (Ineffective
Assistance of Counsel, Incompetence to Stand Trial, and Shackling in
Front of Jury) of Michael Wayne Jennings’ Petition for Writ of Habeas
Corpus, the remainder of the claims having been previously dismissed
upon Respondent’s Motion for Summary Judgment. The court held an
evidentiary hearing on these three surviving claims commencing on
April 29, 1999, and concluding on June 1, 1999.
For the reasons to be detailed below, the court hereby DENIES the
Writ as to claims 4, 6 and 20 in their entirety.
—_——— ay a SY Se ee Der & Nee Ve -
28
DISCUSSION
I. CLAIM 6 (INCOMPETENCE)
Very little evidence was adduced at the hearing regarding this claim
and Petitioner fails to even address it in his initial post-hearing brief. In
his reply brief Petitioner formally withdrew his claims for relief from his
judgment and sentence on this basis. Nevertheless, given that the court
has held an evidentiary hearing on the issues presented by this claim and
Respondent has briefed them fully, the court will address the merits of
this claim.
In ruling on Respondent’s motion for summary judgment of this
claim, the court held that to sustain an incompetence claim a petitioner
must demonstrate by at least a preponderance of the evidence that he did
not have “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” and that he did not have a
“rational [or] factual understanding of the proceedings against him.” See
Order of May 5, 1998, p. 32, lines 16-22, quoting Cooper v. Oklahoma,
517 U.S. 348, 134 L.Ed.2d 498, 506 (1996).¥ The court held that, based
upon this standard, Petitioner might be entitled to relief upon the
testimony of a psychiatric expert that he was in fact incompetent at the
time of his trial. /d. at p. 33, lines 3-4.
At the evidentiary hearing Dr. Karen Gudiksen testified by reading
into the record her declaration’s conclusory statement that Petitioner’s
“mental illness and the medications prescribed for him after arrest
precluded him from effectively aiding and assisting his attorney through
pretrial and trial of this case.” RT 874; and see Respondent’s Exh. HH,
{| 72. She also read into the record her declaration’s recitation of the
medications that Petitioner was given during the pre-trial and trial stages,
his own report of how these medications affected him, and the report of
witness Donna Gwin that Petitioner “giggled” during the trial. RT 847-
8. At line 19 of the May 5, 1998 Order, the word
“competence” should re “incompetence.”
5
29
849. She concluded that “perhaps he was a bit overmedicated at least
some of those times” and that the prescriptions decreased his
“understanding and awareness and alertness” from time to time. RT
849-850. It was pointed out that Dr. Gudiksen did not interview trial
counsel, his paralegal, or any jail personnel regarding their observations
of Petitioner’s demeanor during his trial (RT 902), although she did
review the declaration of the paralegal testifying to his inappropriate
behavior (RT 957-959).
Donna Gwin testified that she observed Petitioner gi geling with his
attorney during the trial. RT 201. Paralegal Gail Cates testified that
Petitioner “would laugh. He would turn around and talk to his friends
and his family in a loud voice... while testimony was going on... as
if the gravity of the situation never hit [him].” RT 985-986.
Respondent’s expert, Dr. James Missett, testified that the amount
of medication prescribed to Petitioner was “an ordinary dose” and that
he did not display any signs of overreaction. RT 1544; see also Resp.
Exh. CC, p. 24 (“No drug hangover”). He noted the lack of any cited
basis for Dr. Gudiksen’s conclusion that Petitioner was overly sensitive
to the medications (RT 1545-1546), and the lack of any indication in the
record that he was actually unable to understand the proceedings or to
cooperate with his counsel (RT 1546). Dr. Missett concluded that the
record, in fact, demonstrated that Petitioner was competent at the time
of his trial. RT 1541; see also RT 1537-1538.
Evidence before the court on this issue also includes trial expert Dr.
Kenneth Hjortsvang’s two examinations in which he found that
Petitioner was “not psychotic” although he had “socio tendencies” and
was “rather hedonistic” (see Resp. Exh. BB at p. 20) and that he had “no
thought disorder” (Resp. Exh. CC at p. 25). According to the testimony,
Dr. Hjortsvang reported to the defense attorneys that Petitioner was
“okay.” RT 1087; 1088-1089. Attorney Michael Oliver and paralegal
Cates also observed him to be cooperative and alert. See RT 1090; 1026.
As evidence of Petitioner’s lucidity and involvement in the trial
decisions, Oliver noted that Petitioner resisted putting on a mental state
30
defense, insisted upon an alibi defense, and initially refused to allow
Oliver to present a penalty phase case at all. RT 1148; 1152-1153; 1179;
and see Resp. Exh. PP at 42. Cates stated that Petitioner did not appear
to have any mental impairment and agreed with Oliver’s opinion that
Petitioner “would have reacted badly” to the suggestion of a mental
defense. RT 1026;1029.
Finally, the transcript of the state court proceedings reveals that the
Superior Court addressed the issue of Petitioner’s competency on at least
two occasions. Transcript of Superior Court Trial (TrRT) at 824-828;
4101-4103 (‘THE COURT: . . . “I’m satisfied I don’t have anybody
that’s 1368” or even coming close to it in front of me. . .“).
No witness ever described Petitioner with words such as “erratic,”
“irrational,” “bizarre” or any similar term nor did any witness testify to
any incident occurring during the trial which even remotely indicated
Petitioner’s inability to understand and participate in the proceedings.
See Boag v. Raines, 769 F.2d 1341, 1343 (9" Cir. 1985), cert. denied
474 U.S. 1085 (1986). To the contrary, the testimony pointed a picture
of a man of at least average intelligence who actively participated in trial
strategy, was interested in and attuned to his surroundings, and who was
aware that he was on trial for murder and faced a potential death
sentence.
The court’s own review of the record of the Superior Court
proceedings corroborates this impression. Petitioner was always
addressed as an intelligent and rational participant in the proceedings.
The only time he demonstrated a lack of full awareness was when he was
experiencing some physical pain and had taken some over-the-counter
medication and, as a result, was feeling drowsy As soon as the judge
9. Cal. Penal Code § 1368 regards the procedures to
follow if the defendant appears mentally incompetent to the
court.
10. Mr. Oliver also testified that there was one episode
i iM Kh a Ti eS nee ee Y,
+
&
H
4
)
s
31
learned of this situation he adjourned the proceedings. TrRT 824. There
‘s no indication whatsoever from this record that the participants felt that
Petitioner was in any way impaired and there is ample indication that
they would not have proceeded had they believed he was. The
observations and behaviors of those who took part in Petitioner's trial
carry the most weight in this court’s opinion.
In sum, although Dr. Gudiksen did testify that Petitioner was
incompetent at the time of his trial, this lone opinion, reached on the
basis ofacold record, without personal knowledge and without speaking
to persons who observed his behavior at the time in question, and made
with little expressed rationale, does not outweigh the aggregate of the
opposing evidence tending to show that he was competent. Thus,
Petitioner has failed to carry his burden.
The claim that Petitioner was incompetent to assist in his own
defense is denied.
II. CLAIM 20 (SHACKLING)
Petitioner has also formally abandoned this claim. Again, in the
interest of thoroughness and in light of the parties’ completed efforts in
presenting this claim through evidence and briefing, the court shall
address its substance.
during the trial in which Petitioner, in the presence of the jury
suddenly began cursing and mumbling. RT 1136. He stated
that the judge broke immediately and gave him time with his
client and proceedings resumed only after Petitioner assured the
judge that he could go on. /d The court could not find
reference to this particular incident in the trial record but even
‘f it did occur as Mr. Oliver remembers, it only reinforces the
impression that the trial judge was extremely sensitive to the
defendant’s mental state and would not have allowed the trial to
continue if there was any hint that he was incompetent.
32
In granting Petitioner’s Motion for an Evidentiary Hearing on this
claim, this court stated that “Petitioner will be required to prove that the
shackling denied him a fair trial before he will be entitled to a new trial.”
Order of May 5, 1998 at p. 61:9-10.
The only evidence presented at the hearing related to the claim that
Petitioner was observed in shackles by the jury went to the fact of the
shackling, where it occurred and who might have seen it. No evidence
as to prejudice was adduced. No argument on the subject was made in
Petitioner’s post-hearing briefs.
Gail Cates testified that during breaks in the proceedings Petitioner
would be handcuffed to a wooden bench in the public corridor. RT 986.
She stated that she knew “for a fact” that members of the jury observed
him while he was handcuffed to the bench. RT 986-987.
Michael Oliver initially testified that he did not remember Petitioner
being “shackled or handcuffed in any way in the courtroom.” RT 1208.
On later questioning by Petitioner’s counsel he clarified his recollection:
he explained that Petitioner was never “shackled,” that is, never
restrained by chains, but at times he was brought into the courtroo.>
wearing handcuffs which were then immediately removed by the bailiff
and that he was certain that the jury observed this. RT 1217; 1221-1223.
Oliver also confirmed that Petitioner was occasionally cuffed to the
public bench during trial recesses and that the jury observed him there.
RT 1217-1219. He stated that he had no doubt that the jury was fully
aware that Petitioner was in custody. RT 1219.
No jurors testified either live or by affidavit.
The authorities discuss shackling in terms of that occurring inside
the courtroom and that occurring outside the courtroom. None that the
court could find address the precise issue of the removal of handcuffs
immediately inside the courtroom doors while the jury is present. The
leading Ninth Circuit case on the subject, however, Rhoden v. Rowland,
172 F.3d 633 (9" Cir. 1999), makes clear that due process requires a trial
33
court to weigh the security risks posed by the defendant against the harm
to the presumption of innocence, to the defendant’s mental abilities and
ability to communicate with counsel, and to the decorum of the trial
before it may constitutionally order a defendant shackled in the presence
of the jury. /d. at 636; and see Castillo v. Stainer, 983 F.2d 145, 147 (9"
Cir. 1993), cert. denied 510 U.S. 1014 (1993). If no such analysis and
consideration of less restrictive alternatives is performed, shackles which
are visible to the jurors in the courtroom will warrant the granting of
habeas relief. Jd. On the other hand, “[a] jury’s brief or inadvertent
glimpse of a defendant in physical restraints outside of the courtroom has
not warranted habeas relief’ unless the defendant can show actual
prejudice. Jd. “Similarly, when the defendant’s shackling was not
actually seen by the jury during the trial, [courts] have held that the
shackling was harmless error.” /d.
The evidence which was presented in this case tends to show that
the jury regularly observed Petitioner handcuffed to a bench in the public
hallway during breaks in the trial proceedings and occasionally saw the
bailiff removing and replacing Petitioner’s handcuffs at the start and end
of each session. None of this evidence is conclusive, however, as no
jurors have testified to their actual observations.
As to the out of court observations, if any, there can be no relief
because Petitioner has not demonstrated any prejudice. See Rhoden, 172
F.3d at 636; United States v. Olano, 62 F.3d 1180, 1190 (9" Cir. 1995),
cert. denied 519 U.S. 931 (1996); United States v. Halliburton, 870 F.2d
557, 560-61 (9" Cir. 1989), cert. denied 492 U.S. 910 (1989).
While the in court incidents are more troubling given the
authorities, the court must conclude that the Petitioner has failed to carry
his burden of establishing that any juror actually saw him wearing
| handcuffs during the trial. Only Michael Oliver spoke to the issue and
| he unequivocally stated that Petitioner was never shackled inside the
: courtroom excep' when he was in the process of being transported. RT
| 1223. There is no direct evidence that any jurors actually observed the
| cuffs at any point. See Wright v. Texas, 533 F.2d 185, 187 (5" Cir. 1976)
34
(“[W]here there is no proof that any juror saw the petitioner in
handcuffs, the petitioner has failed to carry his burden to show that he
was prejudiced in any significant manner. A ‘significant possibility’ is
not sufficient to carry the petitioner’s burden of demonstrating the
necessary fact by a preponderance of the evidence.”). Moreover, these
courtroom observations, if in fact any occurred, were brief and “low
key.” Jd. The Ninth Circuit has noted that the “[c]haining of a prisoner
in transport to [and presumably from] the courtroom is a different
matter.” Castillo v. Stainer, 983 F.2d at 147.
The only published decision in a habeas case to find a denial of due
process by unjustified shackling involved the “painful shackling of
defendant’s hands for 17 months.” Rhoden, 172 F.3d at 636, referring
to Spain v. Rushen, 883 F.2d 712 (9" Cir. 1989), cert. denied 495 U.S.
910 (1990). In that case, Spain was visibly shackled, during the trial,
with “leg irons, a waist chain to which each of his hands was bound by
individual chains about eight inches long, and chains that apparently held
him to his chair.” Spain, 883 F.2d at 714. This court has previously
concluded in another habeas case before it that brief viewings of a
defendant’s handcuffs being removed as he entered the courtroom “do
not rise to the level required for inherent prejudice to be shown.” Ghent
v. Calderon, Civ. Case No. 90-2763, N.D. Cal. Order of March 18, 1999,
at p. 9.4
As stated, Petitioner has not briefed the issues outlined by the
Petition and the court’s prior order nor the evidence presented in
connection with his shackling claim and claims now to give up his right
to relief on this issue. The claim that Petitioner was unconstitutionally
displayed to his jury in shackles is therefore denied, for the failure to
pursue the matter and because the claim lacks support in the evidence.
11. In any event, by failing to object to the procedure at
trial, Petitioner has waived the claim here. See Wright, 533 F.2d
at 187.
SSS = RENE aS FOR OTS SSMS RE ore NNER NTN A eNO ROT OREN Te NOOR ETC NIE OTTO SOPOT MN PSN ECON OR oC
35
III. CLAIM 4 (INEFFECTIVE ASSISTANCE OF COUNSEL)
The controlling cases are Strickland v. Washington, 466 U.S. 668
(1984), and Hendricks v. Calderon, 70 F.3d 1032 (9" Cir. 1995), cert.
denied. 488 U.S. 900 (1988). Based upon these authorities and those
that followed and refined them, and as explained below, the court finds
that counsel was not constitutionally ineffective during either phase of
Petitioner’s trial.
A. Guilt Phase
Under Strickland one who claims ineffective assistance must
affirmatively show that counsel’s performance was so defective that he
was not functioning as the counsel guaranteed by the Sixth Amendment
and that there is a reasonable probability that absent counsel’s errors the
result of the proceeding would have been different. Strickland, 466 U.S.
at 694. As stated in Waters v. Thomas, 46 F.3d 1506, 1512 (11" Cir.
1995). cert. denied 516 U.S. 856 (1995): “The test has nothing to do
with what the best lawyers would have done. Nor is the test even what
most good lawyers would have done. We ask only whether some
reasonable lawyer at the trial could have acted, in the circumstances, as
defense counsel acted at trial.”
Moreover, “counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 455 U.S. at 691. “Although there is a strong
presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance, . . . counsel must, at a minimum,
conduct a reasonable investigation enabling him to make informed
decisions about how best to represent his client.” Sanders v. Ratelle, 21
F.3d 1446, 1456 (9" Cir. 1994).
In this case, Petitioner contends that counsel’s failure to investigate
Petitioner’s mental health and family abuse history led him to the
erroneous decision to try the case with an alibi and “other perpetrator”
defense rather than a mental state defense. He argues that had trial
» pe deaf AIM A Mabe Oe
36
counsel obtained the psychiatric opinions that habeas counsel did, he
would have been able to argue that Petitioner was unable to premeditate
and deliberate at the time of the murder. Furthermore, he argues, once
the appropriate background information and expert opinions were in
counsel’s possession, it would have been objectively unreasonable to
choose an alibi defense over a mental defense. As required by
Strickland, Petitioner then contends that if a mental defense had been
utilized, the jury would probably have found him not guilty of the
murder.
In Hendricks v. Calderon, 70 F.3d at 1032, the petitioner had
claimed that his trial attorney failed to adequately investigate his
background, “particularly his alleged history as a victim of sexual abuse
and possible genetic predisposition to various psychiatric disorders, . .
. [and that] the defective investigation provided an inadequate basis for
counsel’s strategic decision not to pursue a mental defense.” /d. at 1037.
Nearly identical allegations are made here. The case is similar in many
factual respects also. After interviewing Hendricks, the defense experts
informed trial counsel that they could find no basis for a mental defense.
There, too, a mental defense “could be pursued only at substantial
strategic cost” since the introduction of psychiatric testimony would
have opened the door for admission of evidence of Hendricks’ other
murder convictions. Jd However, the appellate court agreed with the
district court’s conclusion, following an evidentiary hearing, that trial
counse! did not make an “uninformed or baseless choice” when he
decided to forego further investigation into possible guilt phase mental
defenses. The Ninth Circuit ultimately affirmed the district court’s
denial of the writ with regard to the guilt phase. Jd. at 1037-1038.
Although the experts in Hendricks interviewed the defendant for a
total of almost 20 hours and in the instant case Dr. Hjortsvang’s initial
interview with Petitioner was substantially more abbreviated, Hendricks
does not rely on the length of the interviews for its conclusion. Rather,
Hendricks holds that an attorney, in 1981, did not have an affirmative
duty to investigate his client’s “social history” absent a request from his
expert that such information be obtained and specifically rejects the
ee eRe Le NE o
37
argument that a failure to do so undermines an expert’s conclusions to
such an extent that any strategic choices by the attorney made thereon are
unreliable. Jd. at 1038, citing Card v. Dugger, 911 F.2d 1494, 1512(11"
Cir. 1990), and Bloom vy. Vasquez, 840 F.Supp. 1362, 1370 (C.D.Cal.
1993), reversed on other grounds, 132 F.3d 1267, and cert. denied 523
U.S. 1145 (1998). There is no indication in Hendricks that an attorney
is ineffective for accepting the assessment of a psychiatric expert
following an interview shorter than that conducted in Hendricks.
In this case, Oliver was told that the expert had found no basis for
a mental defense. The opinion was not qualified due to the length of the
interview or the extent of the background information. Dr. Hjortsvang
did not suggest that additional tests or investigation might yield a
different diagnosis. His notes reveal that he did inquire into background
issues with Petitioner, and, although self-reporting may be unreliable
(RT 1301-1302), Hjortsvang did not report that anything seemed
incomplete or fallacious or merited further exploration. As stated in
Hendricks an attorney is entitled to rely on his expert’s unqualified
conclusion and
To hold otherwise would raise the Sixth
Amendment hurdle well above the floor of minimal
competence, requiring attorneys to have the
specialized knowledge to evaluate an expert’s
conclusions before relying upon them in making
strategic choices. By forcing lawyers to second-
guess their experts, the position Hendricks argues
would effectively eliminate the legitimate role
experts play in guiding and narrowing an attorney’s
investigation.
Hendricks, 70 F.3d at 1039.
The court concludes that Oliver’s failure to make a further
investigation into Petitioner’s mental health issues, including flesning
out his social history, does not make his representation ineffective.
38
Petitioner’s citation to Turner v. Duncan, 158 F.3d 449 (9" Cir. 1998),
and Seidel v. Merkle, 146 F.3d 750 (9" Cir. 1998), cert. denied 119 S.
Ct. 850 1999), are inapposite. In Turner, retained counsel failed to
follow up on the psychiatric report obtained by the public defender who
had initially represented Turner and, indeed, did not even recall
reviewing any psychiatric report. Turner, 158 F.3d at 453. In fact, the
dereliction in Turner extended to all aspects of trial preparation and the
decision granting relief for ineffective assistance of counsel was not
based on a failure to pursue a mental state investigation alone. The court
found that trial counsel failed “to perform even the most basic
investigative tasks.” /d. His trial preparation consisted of a review of
the preliminary hearing transcript and a twenty to forty minute interview
with Seidel. /d. He did not “investigate witnesses, follow up on the
psychiatric reports, undertake discovery, research any legal issues, or call
any witnesses other than petitioner.” Jd. at 454. Counsel’s lack of
preparation was “startling” and “inexplicable.” His failure to investigate
the mental state issues was even more appalling “given that the entire
defense strategy rested on contesting the intent element of the crime.”
Id. at 457. These facts cannot be seriously compared to those in the
instant matter wherein counsel received an expert psychiatric report that
there were no mental defenses available and then actively investigated
and pursued an alibi/other perpetrators defense.
Similarly, in Seidel, “trial counsel had conducted no investigation
whatsoever of Petitioner’s mental state . . . despite the fact that he was
put on notice.” Seidel, 416 F.3d at 753: and see 755-756 (“There were
abundant signs in the record . . . nevertheless, trial counsel failed to
conduct any investigation at all;” “evidence in the record that counsel
was actually aware of the mental problems;” “did not obtain Seidel’s
military, prison, or medical records, ... failed to interview any
witnesses . . . never requested that any mental or psychiatric evaluations
be performed . . . efc.). Again, this situation is distinguishable from the
present case in that Oliver possessed an expert opinion leading him to
believe that there were no bases for a mental defense and he was given
no signs that should have caused him to doubt this opinion’s reliability.
Moreover, as in Jurner, the defense in Seidel depended on the
39
petitioner’s mental state, making the failure to make an investigation into
that area the more egregious. /d. at 757. By contrast, here the claim was
that Petitioner did not even commit the homicide.
Petitioner’s attorney effectiveness expert, Michael Burt, testified
that, despite its risks, the mental state approach would have been
substantially preferable to the factual defense that Oliver elected to rely
upon. RT 1358-1361. The court does not find this testimony to be
persuasive. While the fact-based defense was also risky given the
“overwhelming” identity evidence and the ambiguity of the testimony
placing Petitioner at the party, it was a reasonable choice under the
circumstances. Moreover, the Petitioner favored the approach which did
not place his mental state in issue and strongly communicated this
preference to counsel and to paralegal Gail Cates. See, e.g., RT 1029.
In addition to the alibi evidence, Oliver presented evidence that the
murder and rape were committed by a person other than, and
unconnected to, the Petitioner. This defense was aided by the presence
of a vehicle outside the victim’s home which had been associated with
a series of burglaries of the homes of elderly women. It was also
significantly aided by the vehicle identification testimony of the very
same deputy sheriff who was then serving as the courtroom bailiff and
whom defense counsel considered to have a satisfactory relationship
with the trial jury, the members of which were in his charge. RT 1 154-
1156; 1180. Although the evaluation of the attorney’s performance
cannot be influenced by hindsight (see, e.g. Bonin v. Calderon, 59 F.3d
815, 833 (9" Cir. 1995), cert. denied 516 U.S. 1051 (1996)), in this
instance even the benefits of hindsight do not make the choice of one
approach over the other an obvious one.
In any case, it cannot be said that the Petitioner’s mental state was
wholly ignored by Oliver in the guilt phase. Sufficient evidence of
Petitioner’s inability to form the requisite intent to commit murder or to
perform the “acrobatics” necessary to commit the crime due to his drug
and/or alcohol intoxication on the evening in question was adduced so
as to permit Petitioner to request and receive instruction on “Voluntary
Intoxication - When Relevant to Specific Intent” (CALJIC 4.21 (1981
SF ee ee ee
40
Revision) and on “Manslaughter Defined” (CALJIC 8.37 (1979
Revision). CT 1085; 1044.
The court finds that, under the circumstances, it was not
unreasonable for Oliver to try the underlying case on an alibi/other
perpetrators theory rather than a mental state theory. He believed that
there was a strong alibi in that he had witnesses who could place
Petitioner at the bachelor party at the time that the phone records showed
acall being placed form the victim’s home to Petitioner’s ex-girlfriend.”
He had evidence that other suspicious individuals had been observed in.
the area of the crime. Moreover, he had no indication that Petitioner
suffered from any mental impairment based upon his own observations,
those of public defender Carol Babington, and most importantly, the
report of Dr. Hjortsvang. He also knew that any mental defense would
result in the prosecution’s introduction of rebuttal evidence and
competing expert testimony. In this court’s estimation this would have
been a very dangerous strategy and one that would only have been
justified in the absence of any other possible defense. As stated in
Hendricks:
12. The fact that this approach lost some effectiveness
when the phone company witness testified that the records had
not been adjusted for daylight savings time was an unfortunate
turn. However, Oliver’s failure to discover this fact before trial
has never been formally alleged in this court or in the state
courts as evidencing ineffective assistance of counsel.
Therefore, the court may not consider the failure to depose the
phone company witness prior to trial in connection with the
Sixth Amendment claim. See Correll v. Stewart, 137 F.3d 1404
(9" Cir. 19997), cert. denied 119 S.Ct. 450 (1998). In any
event, it does not appear to the court that reliance by counsel on
the business records of a public utility without deposing the
custodian of those records was unreasonable. Indeed, in the
instant case both sides apparently placed reliance upon the
records as they appeared on their face. To find ineffectiveness
of counsel on this basis smacks of prohibited hindsight.
OO ee
41
The Sixth Amendment does not hold an attorney
responsible for the difficulty of the case he inherits.
The choice to pursue a bad strategy makes no
comment on an attorney’s judgment where no better
choice exists.
Hendricks, 70 F.3d at 1042.
The court concludes that trial counsel was not constitutionally
ineffective in his choice of and presentation of the guilt phase defense.
The decision to utilize an alibi and “other perpetrator” defense was
reasonable under the circumstances. Petitioner has not shown that a
mental defense would have probably altered the outcome. The claim that
trial counsel rendered ineffective assistance at the guilt phase is therefore
denied.
B. Penalty Phase
The same standards, presumptions, and deferences apply when
examining the conduct of the penalty phase of Petitioner’s trial.
This portion of the claim presents the court with a somewhat more
difficult question. On the one hand, it seems patently unreasonable not
to use all the evidence at hand that might engender sympathy from a
penalty jury. But three factors in this case move this decision toward a
denial of Petitioner’s habeas claim: first, and foremost, trial counsel did
not possess the extent of evidence that habeas counsel has developed and
presented to this court; second, trial counsel knew that the admission of
character evidence at the penalty phase would throw the door wide open
to the highly damaging evidence of Petitioner’s record of child
molestation and other anti-social behavior which he had managed to
keep from the jury up to that point; and third, the presentation of the
defense contemplated by the testimonies of Petitioner’s doctors, Karen
Gudiksen and Mindy Rosenberg, re/ied upon the acts of molestation and
the addiction to drugs and would have required their introduction by the
defense itself.
42
The first point raises the question of counsel’s competence in
failing to discover the mental health related evidence but the court finds
that counsel could not have been expected to detect the alleged family
history through the veil of secrecy the Jennings had apparently lowered
over their domestic culture. See RT 53-54. While his investigator, Gail
Cates, has testified that Oliver told her to only look for “good things”
about the Petitioner and that he rebuffed her aitempts to inform him of
her suspicions that “there was something very seriously wrong,” in fact,
the only such matters she attempted to inform him of related to
Petitioner’s own mental health and not to the possibility that there had
been enduring and pervasive abuse in the family. See RT 973; 975-978.
She testified that she knew nothing “whatsoever” about abuse within the
Jennings family and that only in retrospect did she feel that they might
have been withholding something in their discussions with her. RT 980;
997. Gail Cates spent 50 hours interviewing Randy Jennings and his
wife and not once was the subject of familial abuse of any sort brought
up. RT 998-999; and see 1010. The record is clear that the evidence of
Petitioner’s childhood obtained by habeas counsel was very difficult to
extract from the family and ultimately was only corroborated by one
witness. “Counsel is not deficient for failing to find mitigating evidence
if, after a reasonable investigation, nothing has put the counsel on notice
of the existence of that evidence.” Matthews v. Evatt, 105 F.3d 907, 920
(4" Cir. 1997), cert. denied, 118 S.Ct. 102 (1997).
The fact is that the Petitioner’s childhood allegations are supported
almost entirely by the testimony of Petitioner’s brother, Randy Jennings
although his mother, Pearl Jennings, confirms that Randy was beaten by
his father on one occasion and that Michael was hit by his father’s hand
several times through the years. RT 1801-1802. She stated that all of
the boys were hit hard at times. RT 1801. While Randy’s extensive
testimony was credible on its face it must also be considered in light of
his demonstrated desire to aid his brother’s cause. The record shows
Randy Jennings’ refusal to sign the statement which he gave to the police
after he learned of his brother’s arrest, stating that it did not reflect what
he had actually told them when interviewed just after the murder was
discovered.
43
None of the other witnesses could support Randy’s portrayal of his
family life. Family members Hester Sapp and Edna Jenson, while
acknowledging verbal hostility between the parents and between the
parents and the children, do not support sustained abusive cruelty. RT
149-151. Hester Sapp once observed Petitioner with bruises but, other
than the verbal fighting, observed no departure from normal familial
practices. RT 131. Brad Meeks, who grew up with the Jennings
brothers, testified to no observations consistent with abusive practices.
RT 254. As noted, even Gail Cates, who spent over 100 hours
interviewing the family in preparation for the penalty phase, received no
inkling that the drastic and long-term abuse described by Randy Jennings
was visited upon the four Jennings boys as they grew up. Significantly,
neither of the other two brothers came forward at the evidentiary hearing
to corroborate Randy’s account.
This is not to say that the court necessarily believes that Randy is
lying. Itis certainly possible that the memories of parental brutality were
so deeply buried and that the “family culture” of secrecy was so
ingrained that the silence could only now be broken. Perhaps
Petitioner’s other brothers have repressed their own dark past.
Conceivably, the beatings and cruelty were well-hidden behind closed
doors and a public face of happiness and normalcy. But these are just
speculations. The weight of the contrary evidence cannot be ignored and
the court must find that Petitioner has not sustained his burden of
proving that he actually suffered a childhood of abuse. More to the
point, however, because the evidence of mistreatment was so difficult to
obtain and because its actual occurrence even now remains uncertain,
Oliver’s failure to uncover it and to provide it to his expert or otherwise
use it in mitigation of penalty was not unreasonable.
This case is thus distinguishable from Hendricks, in which the
Circuit affirmed the district court’s holding that petitioner’s counsel had
been ineffective in the sentencing phase of the trial by failing to conduct
any investigation into mitigating evidence, in that there was no
reasonable mitigation case to discover here. Unlike in Hendricks where
evidence existed of his “nightmarish upbringing and mental problems”
Seen SRR ete ene aS
44
which the attorney could have easily unearthed had he fulfilled his
constitutional duty to investigate (Hendricks, 70 F.3d at 1043), here, not
only are the particulars of Petitioner’s upbringing inconclusively
established, but Oliver did investigate the mitigation case.
Moreover, in further distinction from the facts of Hendricks, Oliver
did not fail to put on a mitigation case. Working with what he had, he
called police officer Charlie Johnson who testified that he had known
Petitioner since 1969 through Petitioner’s role as an informant for the
Concord Police Department Narcotics Unit. TrRT 4038-4039. Johnson
testified that Petitioner was still an informant and did a good job, that
Petitioner was a volunteer, and that he had a connection with the security
office of the Concord Naval Weapons Station as well. TrRT 4044-4046.
Oliver also called Tom Jennings, Petitioner’s brother, who testified
that Petitioner had placed marijuana in his pocket, alerted his police
officer contacts, and that he, Tom, had subsequently been arrested for
possession of marijuana and grand theft. Tom testified that he was in
custody for five days as a result of this incident and that the experience
had turned him around. TrRT 4078-4086.
Oliver called William Gagen, former deputy district attorney for
Contra Costa County, who knew Petitioner in 1971 and 1972 when the
latter was working as a police informant. Mr. Gagen prepared a letter
intended to aid the Petitioner in getting employment which characterized
Petitioner as reliable and conscientious. The witness felt that Petitioner
was trustworthy. TrRT 4054-4062.
Oliver also called Carlos Rose, a police officer, who testified that
Petitioner was his informant for narcotics investigations and that he kept
a file on Petitioner containing documents and information relevant to his
informant role. He testified that on a number of occasions he had
described Petitioner as a reliable informant. Rose stated that Petitioner
was an effective informant. TrRT 4001-4027; 4068-4071.
: a
45
In Hendricks, although he knew of his client’s difficult life, trial
counsel did not conduct “any investigation directed at developing
mitigating evidence” and did not put on any mitigation case other than
to plead for mercy. /d. at 1043. Although the mitigation case presented
here probably did little to rouse the jury’s sympathy for Petitioner, the
unavailability of beneficial evidence cannot be held against the attorney.
See Hendricks, 70 F.3d at 1042. While several of Petitioner’s witnesses
before this court stated that they would have testified before the penalty
jury to the effect that Petitioner was a good person and should be spared
from execution (see, e.g., Sapp, RT 128), opening the door to the
question of Petitioner’s character would have allowed the prosecution to
put on its own evidence of his past anti-social behavior - to devastating
effect.
The question of whether the failure to develop expert mental health
testimony in the nature of that given in this proceeding was
constitutionally ineffective is rendered moot by the extreme likelihood
that the presentation of Petitioner as a sexual predator and
methamphetamine addict (whatever the underlying causes of his
deterioration into such a state) would have only reinforced the jury’s
death verdict. That the jury would instead have been moved to spare
Petitioner’s life because he was mentally impaired due to a cruel
upbringing and an unfortunate fall into drug addition is a possibility, but
only a remote one, not sufficient in this court’s view to undermine
confidence in the outcome.
Then, of course, the chances of success with this particular tactic
are lessened even further by the probability that the prosecution would
put on its own expert who would bring in the prior molestations, if they
had not already come in through the defense, and would testify that the
psychiatric evidence actually demonstrates that Petitioner had an anti-
social personality disorder and not a mental illness. See Testimony of
Michael Burt, RT 1324; 1357-58; 1376; and see Harris v. Vasquez, 949
F.2d 1497, 1525 (9" Cir. 1990) cert. denied, 503 U.S. 910 (1992) (even
where there is a strong basis for a mental defense, an attorney may
reasonably forego that defense when the experts would be subject to
a Sn ee eet ae nage a Satin ies a ote
BO TA BE RTE OS
46
impeachment by equally persuasive opposing psychiatric testimony).
The available methods of combating the effect of the bad act evidence
(see RT 1325-1332) would not have diminished their negative impact
sufficiently that the risks of this approach to the penalty phase would be
outweighed by its benefits. There is simply no showing of the probable
alteration of the outcome that Strickland requires.
Again, the fact remains, in any event, that even if this testimony
might have resulted in the imposition of a different sentence, the failure
to develop it is excused because Oliver made reasonable efforts to assess
his client’s mental health and was informed by his expert that there were
no available issues to be raised in this area. Oliver asked Dr. Hjortsvang
to see petitioner for a second interview prior to the penalty phase and
again Dr. Hjortsvang reported that there were no signs of mental illness.
Respondent’s expert, Dr. Missett, has testified that, based upon the notes
of his interviews with petitioner, Dr. Hjortsvang conducted a reasonable
and professional evaluation. Other witnesses testified that Dr.
Hjortsvang was well regarded in the county and was very experienced
with the type of evaluation involved in this case. Neither Drs. Gudiksen
or Rosenberg impugned Dr. Hjortsvang’s professional abilities.
Dr. Hjortsvang knew of Petitioner's juvenile record and
commitment to the Boy’s Ranch and the molestations of young girls
which put him there. Resp. Exh. BB. He knew that Petitioner was using
methamphetamine heavily in the years and days prior to the murder. /d.
Petitioner’s complaint that Dr. Hjortsvang could not have formed an
adequate opinion of his mental health in the absence of the social history
uncovered by habeas counsel presupposes that this history has been
clearly established in these proceedings.
The only other evidence considered “critical” by Petitioner’s habeas
experts which was not possessed by Dr. Hjortsvang was the family
medical history and various incidents from Petitioner’s own medical
history. Petitioner has not satisfied this court by a preponderance of
evidence that these items have any bearing on his own mental condition.
Drs. Gudiksen and Rosenberg testified at length about the maladies of
47
Petitioner’s ancestral relatives and about Petitioner’s own early ailments
such as skin rashes as an infant and his propensity to hurt himself.
Although this history was considered noteworthy by the Petitioner’s
doctors, how it contributed to or caused his alleged mental illness was
not adequately explained. Dr. Missett, testified on the other hand that it
could not have. RT 1622; 1773-1776. Evidence that Petitioner used to
mutilate himself and introduce foreign substances into his wounds is
present and is conceded by Dr. Missett (RT 1783-1788), but the lack of
this knowledge alone could not wholly subvert the validity of Dr.
Hjortsvang’s opinion.
An attorney is entitled to rely on his experts. Hendricks, 70 F.3d at
1038-1039: Babbit v. Calderon, 151 F.3d 1170, 1174 (9" Cir. 1998) cert.
denied 119 S.Ct. 1068 (1999). The court finds that Oliver did not act
unreasonably in concluding that there was no mental health evidence to
present at sentencing.
Petitioner has placed great stock in the power of Orin Allen’s
testimony. The court feels that his testimony was not relevant in any
significant respect but believes it should be addressed briefly because of
the way it has been characterized by Petitioner through his counsel. Orin
Allen did appear through live testimony to be a man of great compassion
and influence. He did remember Petitioner with some warmth but when
queried if he would have cooperated with the defense if asked, he stated:
“Only in that I feel today as I would have felt then,
and with a lot of our cases now, where did that
parent or us as an institution miss the boat with that
particular person or youngster to get him where he
was right then.”
RT 304-305. Mr. Allen clearly felt that the system failed Petitioner and
that if greater efforts had been made to intervene in his life that things
might not have reached the point that they did. This was the gist of the
testimony. Mr. Allen did not state that he believed that Petitioner could
not have committed the crime or that he should not have been convicted
48
and sentenced to death for it. Moreover, although Petitioner makes
much of Mr. Allen’s standing in the community, his recognition by many
groups for his commendable work with troubled youth, and the fact that
the Byron Boys’ Ranch has not been renamed in his honor, these facts
did not exist in 1983. The court finds that Mr. Allen’s testimony would
not have been “overwhelmingly helpful” and in fact may have hurt
Petitioner by implying that the chance to rehabilitate him had been
missed. Therefore, Oliver’s failure to call him to testify at the penalty
phase was not prejudicial.
Oliver may indeed have erred in concluding that he could not look
at the medical records that had been sent to the special master, but this
error was harmless because, as discussed above, those records contained
little that would have altered the scope of his investigation or his view
of petitioner’s mental health.
Finally, the court is compelled to address the contention, made both
implicitly and explicitly in these proceedings, that trial counsel must
have been ineffective simply because he did not uncover the mass of
background evidence or obtain the detailed medical opinions that habeas
counsel has been able to garner. From time to time throughout the
evidentiary hearing before this court witnesses were asked to compare
the quantum of evidence presented by trial counsel to that marshaled by
habeas counsel in support of the instant application. This is not an apt
comparison, however. Habeas counsel had in excess of seven years to
prepare their case and were sufficiently funded to pursue every possible
avenue which they believed might benefit their client. The trial of this
matter occurred seventeen years ago under entirely different time and
funding constraints. Nevertheless, trial counsel had the benefit of the
medical opinion of a qualified physician. That the physician was
originally engaged by predecessor counsel is irrelevant. There is no
evidence that anything, including a request from the examining physician
expert, occurred which would have or should have prompted the conduct
of an investigation such as the one conducted by habeas counsel.
Counsel’s conduct is not to be judged on the basis of what habeas
counsel have done, but rather on the basis of what a reasonable attorney
———
49
could have done in the circumstances. Waters v. Thomas, 46 F.3d at
1512.
The point that, despite all the time and money that habeas counsel
were able to devote to this Petition, the evidence that was unearthed was
not so overwhelmingly beneficial to Petitioner that it would have been
clear error not to have presented it to a penalty jury, is worth re-
emphasizing here. Even if Oliver had possessed the exact same evidence
and had obtained the exact opinions that Drs. Rosenberg and Gudiksen
have offered here, it would have been entirely reasonable and within
professional norms to have decided that it was too risky to put this
evidence before the jury. Although he could have confined himself to
a presentation of Petitioner’s harsh upbringing without comment by
mental health experts, in an effort merely to humanize Petitioner and to
gain the jury’s sympathy, this evidence alone is not reasonably likely to
have altered the outcome. In other words, even if counsel was deficient
in failing to investigate, the deficient performance did not prejudice the
defense. See Strickland, 466 U.S. at 687.
The court finds that trial counsel was not ineffective in his handling
of the penalty phase of Petitioner’s case. This aspect of Claim 4 must
also be denied.
CONCLUSION
The remaining claims of the Petition for Writ of Habeas
Corpus are denied. Judgment is hereby entered on behalf of Respondent
and the petition is dismissed.
IT IS SO ORDERED.
DATED: 2 16 00
/s/
William A. Ingram
UNITED STATES DISTRICT JUDGE
50
FOR PUBLICATION
People v. Jennings (1988) 46 Cal.3d 963, 760 P.2d 475; 251 Cal.
Rptr. 278
[No. $004612, Crim. No. 23625. Supreme Court of California.
Sept. 19, 1988.]
THE PEOPLE, Plaintiff and Respondent, v.
MICHAEL WAYNE JENNINGS, Defendant and Appellant.
COUNSEL
Frank O. Bell, Jr., State Public Defender, under appointment by the
Supreme Court, and Musawwir Spiegel, Deputy State Public Defender,
for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant
Attorney General, Edward P. O'Brien, Assistant Attorney General,
Herbert F. Wi!kinson and Gerald A. Engler, Deputy Attorneys General,
for Plaintiff and Respondent.
OPINION
EAGLESON, J.—Defendant was convicted by a jury in the Contra
Costa County Superior Court of first degree murder (Pen. Code, § 189)?’
(count I); forcible rape (§ 261, subd. (2)) (count II); first degree burglary
(§§ 459-460) (count III); and robbery (§ 211) (count IV). He was found
to have personally used a knife during the commission of each of these
crimes (§ 12022, subd. (b)), all of which occurred on August 8, 1982,
and involved the same victim, Violet Ann Newman. The jury found true
special circumstance allegations that defendant intentionally committed
the murder during the commission or attempted commission of the rape,
13. All statutory references are to the Penal Code
unless otherwise indicated.
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residential burglary, and robbery. (§ 190.2, subd. (a)(17)(i), (iii) and
(vii).) The jury fixed the penalty for the murder as death. After denying
modification of the verdict (§ 190.4), the court imposed that penalty.
This appeal is automatic. (§ 1239, subd. (b).)
Defendant seeks reversal of the verdicts of guilt on grounds that the
trial court erred in admitting evidence of his pretrial statements which he
claims were obtained by interrogating officers in violation of his right
against self-incrimination after he had invoked his right to remain silent.
(Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct.
1602, 10 A.L.R.3d 974]; People v. Fioritto (1968) 68 Cal.2d 714 [68
Cal.Rptr. 817, 441 P.2d 625].) Defendant also challenges the penalty
proceedings on a variety of grounds most of which are related to the
propriety of the court's instructions to the jury.
After an independent review of the videotaped interrogation of
defendant we conclude that the trial judge, who also reviewed the tape,
could reasonably believe that defendant had not invoked his right to
silence, and we find nothing in that tape to persuade us otherwise.
Admission of defendant's statement was not error, therefore. Finding no
~ error prejudicial to defendant during the penalty phase of the trial, we
shall affirm the judgment in its entirety.
I.
Violet Newman, the 63-year-old victim, died of multiple traumatic
injuries she suffered in her Concord home at approximately midnight on
Saturday, August 7, 1982. An autopsy revealed 14 stab wounds in her
chest and abdomen, and a deep laceration across her neck that severed
the left carotid artery and the jugular vein. A possible ligature mark
encircled her neck. Marks on the ankles were consistent with those that
a rope tied around the ankles would make. There were bruises and
abrasions on the victim's face and neck. She had been raped in a manner
that caused abrasions in the vaginal wall. Bruises on the inside of her
right thigh could have been made by a knee. Semen found just above the
pubic hairline was aspermatic, and contained A and H blood-type
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antigens. Newman’s body was found in her bedroom, on the bed, on
Monday, August 9, by her brother-in-law who had been contacted by her
employer when she failed to arrive at work on Sunday. She was
unclothed except for a night hat and gloves. Her legs were spread wide
apart. Her purse lay open at the foot of the bed. Her wallet and
checkbook were missing, as was a telephone answering machine that she
had kept in the living room.
Defendant was connected to the homicide only by circumstantial
evidence. That evidence, however, was strong. His parents, with whom
he had lived until six weeks before the killing, were immediate
neighbors of the victim. He had grown up with the victim's children.
Defendant continued to visit frequently with his parents. A layered piece
of strapping tape found in the victim's bed bore defendant's thumbprint
and partial left palm print. Tape of the same size and type was found in
the camper shell of defendant's pickup truck which was seized and
impounded on August 12. Rope found in the truck was microscopically
examined and determined to be made identically to a piece six inches
long that had been found on the floor next to the victim's bed. This rope
was the width of the ligature mark.
Microscopic examination of a piece of broken plastic found in
defendant's truck established that it had come from an answering
machine of the same make as that missing from the victim's house.
Blood on the piece of plastic contained the AK type 2-1 enzyme as did
the victim's blood. Defendant's blood type, A, contained AK type 1
enzyme. Moreover, his blood possessed A and H antigens like those in
the aspermatic semen found on the body. Defendant was determined to
be a secreter whose blood-type substances were present in his semen.
He had undergone a successful vasectomy in 1976.
Boot prints on the victim's sheet were sufficiently similar to those
made by the boots worn by defendant at the time of his August 12 arrest
to have been made by those boots. A telephone call had been attempted
from the victim's telephone at 2:19 a.m. on August 8 to the home of Ms.
B., a friend of defendant with whom he had lived in 1981. She did not
spe on nie 7 ase
53
know the victim. Defendant had also attempted to reach her earlier
during the night of August 7, when he telephoned from a bachelor party
he was attending in Pittsburg. Although defendant had left the party to
purchase beer and had returned without any money, he had $10 to $15
in currency and some change the next morning at 8 a.m. when he again
returned to the house where the party had been held.
At 9 a.m. on August 8, defendant visited other friends who noticed
that his hair was wet. He told them he had taken a whirlpool bath. The
vict'm had a whirlpool machine. Although she habitually hung her
towels on the bathroom towel racks, after the murder one was found
thrown over the shower door. Defendant was in possession of a folding
pocket knife at the August 7 party, but the next afternoon stated that he
had lost the knife. The blade on the knife was about three and one-half
to four inches in length, consistent with the stab wounds suffered by the
victim. Defendant told several persons that he had not left the August
7 bachelor party until Sunday morning. He had told an investigating
officer that he had been at the party from 1:45 p.m on Saturday until
4:30 a.m. on Sunday. He later stated that he had left for two 15-minute
periods before 11 p.m. Saturday to purchase drugs. Still later he told
another officer that he had left the party at 11 p.m. to drive his brother
home, after which he had returned to the party where he remained until
1 or 1:30 a.m. Sunday when he went to the home of another friend
where he remained until 6:30 a.m. Sunday, at which time he returned to
the house where the party had been given. The house imwhich the party
had been held was seven to fifteen miles from the home of the victim
dependent upon the route taken. Travel time between locations was 13
to 20 minutes.
No witness testified that petitioner had remained at the party all
night. The testimony of those witnesses who had been at the party
conflicted as to the time he had been absent, but all agreed that he had
left the party several times.
After the victim's body was discovered, defendant made statements
to acquaintances that referred to details that were not publicly known.
54
On the night of August 10 he said that his neighbor had been tied up,
stabbed numerous times, and it appeared an attempt had been made to
cut her head off. He claimed he had been shown pictures of the body by
the police, but the first photos had not been developed at the time he had
been present during a police interview. On the same day, during an
interview of defendant's parents by a police officer, defendant said that
he could not see how anyone would rape such a nice old lady. He
volunteered statements about the rape when interviewed at the police
station on August 12. No information about the rape, the slashed throat,
or that the victim had been tied had been released to the public.
The defense was alibi, coupled with an effort to suggest that another
person who had been seen in or near a station wagon in the
neighborhood on several occasions when a series of burglaries occurred,
and who was in front of the victim's house on Monday, August 9, had
committed the offenses.
Il.
Guilt Phase
Defendant's first claim, made in a brief filed before the decision of
the United States Supreme Court in Lockhart v. McCree (1986) 476 U.S.
162 [90 L.Ed.2d 137, 106 S.Ct. 1758], is that trial by a "death-qualified"
jury (Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88
S.Ct. 1770]) denied him both the right to be tried by a jury representing
a fair cross-section of the community and the right to trial by an
impartial jury. Both arguments were rejected by the Supreme Court in
Lockhart as they had been earlier by this court in People v. Fields (1983)
35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680], and Hovey v. Superior
Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]. (See also
People v. Chavez (1985) 39 Cal.3d 823, 827 [218 Cal.Rptr. 49, 705 P.2d
372]; People v. Anderson (1985) 38 Cal.3d 58, 60 [210 Cal.Rptr. 777,
694 P.2d 1149]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [202
Cal.Rptr. 826, 680 P.2d 776].) These arguments need not be addressed
further. (People v. Melton (1988) 44 Cal.3d 713, 732 [244 Cal.Rptr.
55
867, 750 P.2d 741]; People v. Miranda (1987) 44 Cal.3d 57, 78-79 [241
Cal.Rptr. 594, 744 P.2d 1127].)
Defendant next argues that the trial court erred in denying in part
his motion to exclude statements he made to investigating police officers
on August 12, 1982, after he had, assertedly, invoked his right against
self-incrimination. (Miranda v. Arizona, supra, 384 U.S. 436; —
v. Fioritto, supra, 68 Cal.2d 714.)
Because the trial court apparently considered the motion as one
directed to exclusion of defendant's statements on Miranda grounds, we
review that court's determination that the statements were admissible on
that basis. We note, however, that while the motion was one to suppress
photos, videotapes, and recordings made by police investigators after
defendant had invoked his Miranda rights, it was expressly described by
defense counsel as "a 1538.5 motion"; was made as a pretrial in limine
motion; and defendant made no objection when testimony regarding
defendant's recorded statements was offered at trial. Notwithstanding
the use of these improper procedures by which to raise and preserve the
issue, we reach the merits of defendant's claim because the parties
14. Because the videotapes or recordings of
defendant's statements are theinselves evidence of the
statements, as opposed to evideiice obtained as a product of the
statements, they were not tangible evidence subject to exclusion
pursuant to a pretrial motion to suppress under section 1538.5.
The reasoning by which defendant claimed that photographs
taken of him were the product of his statements was not made
clear in the motion. It appears that none of the evidence was
properly subject to suppression under section 1538.5 since
defendant did not claim it was the product of an unlawful arrest.
15. Generally when an in limine ruling that evidence
is admissible has been made, the party seeking exclusion must
object at such time as the evidence is actually offered to
preserve the issue for appeal. (See People v. De Santiago
56
stipulated that the pretrial ruling would be binding at trial,“* and the
(1969) 71 Cal.2d 18, 22 [76 Cal.Rptr. 809, 453 P.2d 353];
People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734
[125 Cal.Rptr. 798, 542 P.2d 1390]; Saidi-Tabatabai v.
Superior Court (1967) 253 Cal.App.2d 257, 266 [61 Cal.Rptr.
510]; People v. Beasley (1967) 250 Cal.App.2d 71, 77 [58
Cal.Rptr. 485]; 3 Witkin, Cal. Evidence (3d ed. 1986) § 2011,
p. 1971.) The reason for this rule is that until the evidence is
actually offered, and the court is aware of its relevance in
context, its probative value, and its potential for prejudice,
matters related to the state of the evidence at the time an
objection is made, the court cannot intelligently rule on
admissibility. When the parties stipulate on the record, as they
did here, that a ruling on an in limine motion to exclude
evidence will be binding, that stipulation should be deemed a
continuing objection to admission. Failure to renew the
objection when the evidence is offered does not waive the right
to assert error on appeal in these circumstances. Defendant's
failure to object at trial to the admission of his statement does
not preclude consideration of his assertion of error here.
16. We accept the parties’ characterization of their
pretrial agreement as a "Stipulation." Shortly before testimony
of the interrogating police officer was to be offered at trial,
counsel advised the judge that they had agreed or they
"understood" that the earlier ruling, by a different judge, would
be binding at trial. The record is ambiguous as to whether
counsel reached this agreement on the basis of their mistaken
understanding that because the ruling on the section 1538.5
motion necessarily involved a determination of whether there
had been a Miranda waiver, that finding was "res judicata," or
they simply agreed to be bound by the pretrial ruling.
At trial defense counsel asserted that he and the
prosecutor believed that the pretrial ruling was a "res judicata
decision or collateral estoppel decision." The trial judge said /
57
judge to whom the matter was submitted by finding the statements to be
"voluntary" indicated that he had considered the motion to suppress as
one directed to introduction of any evidence of the statement as having
been obtained in violation of Miranda.
There was no actual hearing on the motion which was simply
submitted on a brief written motion, opposition papers, and videotapes
of the interrogation. No other evidence, and no argument, was offered on
whether defendant was in custody. The court's only express finding in
the minute order denying the motion in part was that defendant's
statement was "voluntary."
The rule of Miranda is well established: "[W]hen an individual is
taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized. Procedural safeguards
must be employed to protect the privilege, and unless other fully
effective means are adopted to notify the person of his right of silence
and to assure that the exercise of the right will be scrupulously honored,
the following measures are required. He must be warned prior to any
questioning that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him throughout
the interrogation. After such warnings have been given, and such
that he understood that "in effect the parties had ended up
agreeing that the [pretrial] ruling would be the ruling of the
Superior Court and would not seek relief from me ... it made
finding of voluntariness beyond a reasonable doubt and to a
moral certainty in accordance with the law." The prosecutor
then stated: "I agree with counsel's characterization of the
agreement that the decision [pretrial] would be binding on the
parties here."
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opportunity afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer questions or make
a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a result
of interrogation can be used against him." (384 U.S. at pp. 478-479 [16
L.Ed.2d at p. 726].)
In People v. Fioritto, supra, 68 Cal.2d 714, we recognized that
once a defendant has indicated an intent to assert his right to remain
silent or to counsel, all further attempts at police interrogation should
cease. We also emphasized, however, that statements voluntarily
initiated by a suspect are admissible, and that police officers have no
obligation to dissuade an individual who comes to the police to confess
or make a statement. (/d., at p. 719.) Although he does not make the
nature of his argument explicit, defendant appears to be contending that
he was in custody at the time his statements were made, and that his
invocation of his rights during questioning was not honored by the
police. The motion had asserted generally that once a defendant has
invoked his Fifth Amendment privilege, statements obtained through
further police interrogation are inadmissible, and statements are
unlawfully seized if taken in violation of Miranda, or if involuntary.
Defendant made no factual allegations in his motion or memorandum of
points and authorities regarding the circumstances in which his
statements were obtained. However, in relying on Miranda, the motion
implicitly claimed that the threshold for invocation of the protections of
that decision had been reached, i.e., that defendant was both in custody
and undergoing custodial interrogation when the statements were made.
Defendant claims that he invoked his rights during an August 12
interrogation when he stated to Officer Cromwell: "I'll tell you
something right now. You're scaring the living shit out of me. I'm not
going to talk. You have got the shit scared out of me," and, "I'm not
saying shit to you no more, man. You, nothing personal man, but I don't
59
like you. You're scaring the living shit out of me... That's it. I shut
up."
The ruling of the trial court that statements made by defendant after
he made this pronouncement were "voluntary" implies that the court
found either: (1) that defendant was not in ‘custody at the time his
statements were made; or, (2) that he had not attempted to terminate
the interview by invoking his rights; or, (3) that his subsequent
statements were not induced by impermissible attempts at further
17. The motion to suppress was granted as to
statements defendant made on the next day, August 13, during
the last five minutes of a taped interrogation after he had stated
to Officer Maich: "This is getting us nowhere. I don't want to
talk no more, Don." He was then addressing Officer Don
Maich, whom he had known for 10 to 15 years. Maich had not
been the primary interrogator, however. Officer Gordon
Cromwell, whom defendant had not known prior to the
interrogation, had conducted both sessions.
18. Defendant argues that because the People did not
dispute whether he was in custody at the time the suppression
motion was submitted for decision, they may not do so now.
Although defendant remained at the police station for
approximately seven hours, during much of which he was
questioned, several factors suggest that he was not in actual
custody and the circumstances were not such that a person
would reasonably believe he was under restraint equivalent to
arrest. He had voluntarily accompanied an officer he knew to
the police station. He was left alone in the interview room for
lengthy periods of time. He stated on one occasion that he
would leave. He suggested to the officers that they go out and
confirm his alibi instead of questioning him further. He
appeared to be relaxed and his attitude was that of a person who
both recognized the reason the police needed to talk to him and
wanted to assist them in the investigation.
60
interrogation after defendant had indicated his desire to terminate the
interview.
Because we conclude that defendant did not invoke his right to
silence by the remark to Officer Cromwell, we need not decide whether
the custody question was raised by the motion or how it should be
resolved.
Assuming that the trial court found or assumed that defendant was
in custody when he made the statements in question, we agree with the
trial court's implicit finding that defendant did not intend to invoke his
right against self-incrimination. Were we to base our decision solely on
the reporter's transcript of those portions of the interview on which
appellant relies, his claim that he invoked his right to silence would
appear meritorious. On a review of the fuil tape and consideration in
context of the words on which defendant relies a different picture
emerges. That part of the first interview at which defendant claims he
asserted his rights involved a few moments when defendant lost his
temper and expressed anger toward Officer Cromwell who was then
questioning him about his whereabouts on the Monday following the
murder. Officer Cromwell had indicated that there were discrepancies,
and time unaccounted for. Defendant had apologized, stated that he did
not remember that day well, and that the friends and relatives with whom
he had spent parts of the day could account for his time. When the
officer persisted in his attempt to clarify certain contradictory statements
defendant had made, defendant became angry, said "this thing" [referring
to the murder] and the investigation had him scared, and he was not
going to say any more. Maich was present at the time.
Defendant had earlier indicated that he trusted Officer Maich,
whom he had known for many years, and Officer Rose, for whom he had
been a narcotics informant, not to misstate or twist what defendant said,
and was talking to Cromwell only because Rose assured him Cromwell
could be trusted to be fair. When defendant made the statements he
claims were an invocation of his rights he was addressing Cromwell.
Viewing the tape, observing defendant's demeanor before, during, and
.
> & . ee ~~e 4 os >» = “<=
61
after the statements, and considering the context in which defendant
made the statements on which he relies here, we conclude that the
statements reflect only momentary frustration and animosity toward
Cromwell. It is evident that defendant believed Cromwell was
misconstruing defendant's statements and persisting 1n his attempt to get
defendant to recall details about his whereabouts on Monday that he had
already admitted he could not recall instead of doing as defendant had
earlier suggested — going out and questioning those people who could
account for his whereabouts on that day.
The court below, viewing this tape, could reasonably conclude that
defendant was refusing to talk further with Cromwell whom he did not
like or trust, as opposed to Maich or Rose, and that he was not invoking
his right against self-incrimination when he made these statements.
While we must review the record and make an _ independent
determination of the question, we, like the United States Supreme Court,
may "give great weight to the considered conclusions" of a lower court
that has previously reviewed the same evidence. (See Miller v. Fenton
(1985) 474 U.S. 104, 112 [88 L.Ed.2d 405, 412, 106 S.Ct. 445].)
Having viewed the videotaped interrogation of defendant, and observed
his interaction with the officers, we, too, conclude that his further
statements were voluntary. Defendant did not, by those statements,
indicate that he was invoking his right to silence. He apologized for his
outburst and voluntarily continued the interview. The trial court did not
err, therefore, in admitting the statements. (People v. Davis (1981) 29
Cal.3d 814, 824 [176 Cal.Rptr. 521, 633 P.2d 186].)
II.
Special Circumstances Claims
Defendant's only claim of error in the trial of the special
circumstances allegations lies in the failure of the court to instruct the
jury that a felony-murder special circumstance under section 190.2,
subdivision (a)(17), requires not only a finding of intent to kill as this
court concluded in Carlos v. Superior Court (1983) 35 Cal.3d 131 [197
62
Cal.Rptr. 79, 672 P.2d 862], but also a finding that this intent must be
premeditated and a product of deliberation.
This claim is based on reasoning that Carlos was correctly decided,
and that from Carlos it follows that if the culpability necessary to justify
imposition of the death penalty requires that the murder be intentional,
it must also meet the other requisites of first degree murder, 1.c.,
premeditation and deliberation. (See § 189.) Inasmuch as we have
reconsidered Carlos and concluded that it was not correctly decided, the
predicate assumption for this argument fails. A felony-murder special -
circumstance is established even absent intent to kill, premeditation, or
deliberation, if there is proof beyond a reasonable doubt that the
defendant personally killed the victim in the commission or attempted
commission of, and in furtherance of, one of the felonies enumerated in
subdivision (a)(17) of section 190.2. (People v. Miranda, supra, 44
Cal.3d 57, 89; People v. Anderson (1987) 43 Cal.3d 1104, 1138-1139
[240 Cal.Rptr. 585, 742 P.2d 1306].)
IV.
Other than the evidence offered at the guilt phase, the only penalty
phase aggravating evidence presented by the People was the testimony
of the sister of defendant's former wife regarding his commission of acts
of sexual misconduct in 1971, at a time when she was 13 years old. That
evidence is discussed in greater detail below.
Defendant offered evidence, primarily through the testimony of law
enforcement officers with whom or for whom he had "worked,"
regarding his assistance to those officers as a volunteer informant.
Defendant had supplied information regarding narcotics transactions,
burglaries, and other crimes, and had assisted in "controlled buys" of
narcotics, and illegal or stolen firearms. Defendant's brother also
testified regarding an incident in which he had been arrested by officers
who came to the house and found in his pocket some marijuana that
defendant had given him earlier in the day. That conviction and
probation had "changed his life."
63
Penalty Phase Contentions
A. Aggravating Factors.
The only aggravating factor, apart from those established by
evidence introduced at the guilt phase of the trial, which the People
sought to establish at the penalty phase of the trial, was that described in
factor (b) of section 190.3: "The presence ... of criminal activity by the
defendant which involved the use or attempted use of force or violence
or the express or implied threat to use force or violence." To prove past
conduct of this nature by defendant, the People introduced evidence of
incidents in 1971 when defendant engaged in acts of unlawful sexual
conduct, oral copulation, and lewd conduct with his 13-year-old
sister-in-law. He contends now that consideration of criminal conduct.
of which the defendant has not been convicted denies due process and
permits imposition of cruel and unusual punishment. He also challenges
admission of this evidence on the ground that the statute of limitations
for prosecution of those crimes had run, and complains of error in
instructing the jury on "rape."
1. Unitary jury.
Defendant's first argument is based on an assertion that a jury that
had convicted a defendant of first degree murder with special
circumstances is incapable of reaching an objective, unbiased decision
on the question of whether the other crimes have been proven beyond a
reasonable doubt. The essence of the claim, therefore, is not that
consideration of other-crimes evidence is constitutionally impermissible,
but that a capital defendant is entitled to have the penalty decision made
by a second jury. We gave careful consideration to such a claim and to
the due process implications of having a unitary jury in People v.
Balderas (1985) 41 Cal.3d 144, 204-205 [222 Cal.Rptr. 184, 711 P.2d
480], where we concluded that the procedure is constitutionally
permissible, and rejected the suggestion that the evidence was
inadmissible per se. Nothing in the instant case persuades us that the
issue should be reconsidered.
64
2. Statute of limitations.
We also reject defendant's argument that because the statute of
limitations barred prosecution for defendant's other crimes, the conduct
may not be considered an aggravating factor rejected under an earlier
death penalty law in People v. Terry (1969) 70 Cal.2d 410, 422 [77
Cal.Rptr. 460, 454 P.2d 36]. There the claim was made with regard to
evidence of a robbery for which prosecution was barred at the time the
murder charge was filed. We rejected the claim, noting that section 800
which established a three-year period of limitation for initiating robbery
prosecutions "does not prohibit the introduction of evidence of prior
criminal acts for which prosecution would be barred by the statute of
limitations. Such evidence is not introduced in order to impose a penalty
for those prior acts, but rather as evidence 'of the circumstances
surrounding the crime [of murder], of the defendant's background and
history, and of any facts in aggravation or mitigation of the penalty [for
murder]' as authorized by Penal Code section 190.1. The fact that the
prosecution for the robbery may have been barred by the statute of
limitations is immaterial here."
Determination of the appropriate penalty for murder with special
circumstances under the 1978 death penalty law involves consideration
of factors similar to those to which we referred in Terry, supra, 70
Cal.2d 410 — the circumstances of the murder and of the defendant's
background and history, the statutorily designated aggravating factors,
and any mitigating evidence relevant to the determination offered by the
defendant. (§ 190.3; People v. Rodriguez (1986) 42 Cal.3d 730, 786-787
[230 Cal.Rptr. 667, 726 P.2d 113]; People v. Easley (1983) 34 Cal.3d
858, 876 [196 Cal.Rptr. 309, 671 P.2d 813].)
Nothing in the language of the 1978 death penalty law indicates an
intent to depart from the prior law by barring evidence of prior criminal
conduct which took place outside the limitations period. The only
statutory restriction on introduction of evidence of other criminal activity
for consideration as an aggravating factor is that the conduct must have
involved the express or implied threat to use force or violence; the
65
evidence must not be admitted if the defendant has been acquitted of the
offense; and except when introduced for rebuttal the defendant must
have advance notice of the evidence to be introduced. (§ 190.3.) As this
court noted in People v. Balderas, supra, 41 Cal.3d 144, 205, footnote
32, the purpose of the "penalty phase is unique, intended to place before
the sentencer all evidence properly bearing on its decision under the
Constitution and statutes. Prior violent criminality is obviously relevant
in this regard
Evidence of a defendant's past criminal conduct may be essential to
give the jury a true picture of the defendant's history since there is no
temporal limitation on evidence in mitigation offered by the defendant.
In addition, evidence of past, uncharged criminal conduct may reveal a
pattern of continuous criminal activity or one of criminal activity of
escalating seriousness by a defendant. Since this is highly relevant to the
penalty decision, we are satisfied that section 190.3 does not contemplate
limitation of such evidence to crimes for which prosecution is not barred
by the applicable statute of limitations.
We have recently reached a similar conclusion in rejecting a claim
that a time-barred felony may not form the predicate for a felony-murder
special circumstance under sections 190.2, subdivision (a)(17), and
190.4. (People v. Morris (1988) 46 Cal.3d 1, 15 [249 Cal.Rptr. 119, 756
P.2d 843].) A fortiori there is no bar to consideration of earlier felonious
conduct involving force or the threat of force as an aggravating factor.
3. Instructions on prior forcible criminal activity.
Defendant next contends that permitting the jury to consider his
conduct with the child as an aggravating factor under section 190.3,
factor (b), was error both because the evidence that the victim submitted
to force or a threat of force was insufficient, and because the court
erroneously instructed the jury under a statutory definition of rape
enacted subsequent to his act, one which did not require a finding that
the victim resisted or was prevented from resisting by threats of
immediate harm. We conclude that the evidence was sufficient, and that
66
defendant was not prejudiced by the court's error in identifying the
conduct as rape and defining rape under an inapplicable statutory
amendment of section 261.
a. Evidence of force or violence.
The witness testified that she did not call for help when defendant
assaulted her while she was visiting in his home because she did not
want to awaken her sister and because she was "scared." She also
testified, however, that she was five feet two and weighed one hundred
pounds, defendant was six feet tall and weighed one hundred seventy
pounds, and that he lay down on the couch next to her, placed her on her
back, and then lay on top of her to accomplish the act.
The evidence was clearly sufficient to establish the use of force by
defendant. The child did not submit. He turned her onto her back and
lay on top of her. People v. Peckham (1965) 232 Cal.App.2d 163 [42
Cal.Rptr. 673], upheld a conviction for assault with intent to commit
rape (§ 220) where the defendant, who was "very heavy," took the victim
by the arm, put her on a table, and lay on her. Rejecting a contention that
the evidence did not support the requirement of "force," the Court of
Appeal explained: "[T]he 'force' requisite to sustain the conviction does
not mean bodily harm but the physical power required in the
circumstances to overcome [the victim's] resistance." (232 Cal.App.2d
at p. 168.) In addition, were there any question as to whether
19. Defendant's claim that the court erred in permitting
the jury to consider the conduct underlying the allegation of
lewd conduct because that conduct was not shown to involve
the use of force fails for a similar reason. That incident
occurred on the morning following the "rape" when the
defendant committed other acts of sexual abuse on the same
victim. The element of force was established by her testimony
that defendant approached her from the back as she was
working at the kitchen sink and "pushed himself against my
67
defendant accomplished the act by means of force, other uncontradicted
evidence established submission under threat of force. In statements
made to her mother and sisters after the rape, the victim said that
defendant had threatened to kill or hurt her if she moved. These
statements were admitted to rebut a claim of recent fabrication and thus
could be considered by the jury for their truth. (Evid. Code, § 1236;
California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct.
1930]; People v. Cannady (1972) 8 Cal.3d 379, 387-388 [105 Cal.Rptr.
129, 503 P.2d 585].) Although defendant contends Evidence Code
section 1236, which permits the admission of prior consistent statements
under certain circumstances, is inapplicable because the victim's
statements to her mother and sister were inconsistent with her previous
statements, he failed to make that specific objection and thus waived the
issue for appeal. (See Cannady, supra, at p. 387.)
buttocks, and I could feel his erection." This contact was
unquestionably forcible. The victim did not consent and had no
opportunity to avoid the contact which was made by pushing
against her. The absence of force in defendant's subsequent acts
of fondling and rubbing the victim is irrelevant since the initial
contact was itself a violation of section 288 and was committed
forcibly. u
The third incident, a violation of section 288a, involved
the same victim. It occurred on August 9, 1971, in defendant's
vehicle. Defendant told the child to get into the back seat. She
did not obey and told him he was scaring her. He then unzipped
his trousers, and pushed her head down onto his erect penis.
She testified that she was unable to do anything because
defendant held his hand on the back of her head. Defendant
does not argue that the evidence does not support a finding that
he used force in the commission of this offense.
68
b. Instructions.
There is merit in defendant's claim that the court erred in instructing
the jury on forcible rape as defined in section 261. This sexual assault
occurred on July 24, 1971. At that time, section 261 defined forcible
rape as that occurring where the victim "resists, out her resistance is
overcome by force or violence," or where the victim "is prevented from
resisting by threats of great and immediate bodily harm, accompanied by
apparent power or execution....". The court instructed the jury under a
subsequent amendment of the statute that rape could be established if it
was "accomplished against the will of such person by means of fear of
immediate and unlawful injury" to the victim, and that accomplishment
of the act "by means of force or ... by means of fear of immediate and
unlawful bodily injury to such person...." Resistance by the victim is not
an element of the offense under the amended statute.
Had defendant been charged, convicted, and punished under the
amended statute without instructions to the jury that resistance or
prevention of resistance was an element of the offense of rape, the
prohibition against ex post facto laws found in article I, section 9 of the
California Constitution, and article I, section 9, and the Fourteenth
Amendment of the United States Constitution would be violated. Each
prohibits retroactive application to a criminal defendant of a statute or
statutory amendment which enlarges the elements of an offense —
making criminal conduct that was encompassed within the statutory
definition of the offense at the time of the defendant's conduct, lessens
the People's burden of proof, or increases the penalty over that in effect
at the time of the crime. (See Conservatorship of Hofferber (1980) 28
Cal.3d 161, 180 [167 Cal.Rptr. 854, 616 P.2d 836]; People v. Benefield
(1977) 67 Cal.App.3d 51 [136 Cal.Rptr. 465]; DeWoody v. Superior
Court (1970) 8 Cal.App.3d 52, 56 [87 Cal.Rptr. 210].) No
constitutionally impermissible application of the law occurred here,
however.
69
Defendant's focus on the court's instruction and reference to the
conduct as "rape," overlocks the distinction between the clearly
impermissible ex post facto application of a penal statute under which
a defendant is convicted or punished, and the nature of the aggravating
factor established by section 190.3. That factor does not limit
consideration of prior criminal corduct to offenses in which force or
assaultive conduct is an element of the offense. Proof that defendant
committed forcible rape was not required. Factor (b) of section 190.3
permits consideration of any "criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or
implied threat to use force or violence." In 1971, when the sexual
assault occurred, section 261.5 defined "unlawful sexual intercourse" as
"an act of sexual intercourse accomplished with a female not the wife of
the perpetrator, where the female is under the age of 18 years." Prior to
a 1970 amendment of section 261, this offense had been included in that
section's definition of "rape." Although renamed in the amendment, the
conduct was no less criminal when defendant assaulted his sister-in-law.
The question then, under section 190.3, is not what the elements of rape
were in 1971, but whether the instructions required that the jury find that
defendant engaged in criminal activity accomplished by means of force
or the threat of force. (See People v. Balderas, supra, 41 Cal.3d 144,
200-201; People v. Boyd (1985) 38 Cal.3d 762, 776-777 [215 Cal.Rptr.
1, 700 P.2d 782].) .
Although the instructions given improperly identified the relevant
conduct as "rape," they did require that the jury find all of the elements
of the crime of unlawful sexual intercourse, and to find that it was
accomplished by means of force or threats of force. Section 190.3
20. The instructions advised the jury: "Evidence has
been introduced in the guilt and penalty phases of this trial that
may show that the defendant enga,ed in criminal activity which
you may not consider as a factor in aggravation. You may
consider only the crimes which I will define for you in
determining whether or not the defendant has engaged in
70
requires no more.
Defendant also argues that the jury may have been misled by the
court's instruction that if they found defendant had committed the sexual
offenses, the conduct could be considered aggravating. He suggests that
this instruction permitted nonforceable conduct to be considered. We
disagree. The jury was instructed that to be considered aggravating the
other criminal conduct had to involve the use or attempted use of force
or a threat to use force. That instruction encompassed each of the crimes
which the court defined. Not only do we find no tendency to mislead in
the instructions, to which counsel had agreed, but in light of the
uncontradicted evidence that each of the three offenses had been
committed forcibly, we are satisfied that any possible tendency to
mislead could not have been prejudicial.
criminal activity which involves the use of or the express or
implied threat to use force or violence." (Italics added.) Rape,
lewd conduct with a child under 14, and oral copulation were
defined. .
The judge then expressly advised the jury that it might
not consider evidence that had- been received regarding
defendant's involvement with illegal drugs. Defendant reasons
that this instruction directed the jury that it had to consider the
rape, lewd conduct and oral copulation aggravating if it found
that defendant had committed the crimes, even if there was no
force or threat of force.
21. The People argue that any error in this regard
should be considered invited error (see People v. Wickersham
(1982) 32 Cal.3d 307, 330 [185 Cal.Rptr. 436, 650 P.2d 311)),
or found to have been waived because defense counsel and the
prosecutor agreed between themselves on the instructions to be
given. Defendant's counsel said to the court at the time the
agreement was announced: "Your Honor, I do not have any
objections to the death penalty instructions as they are now
worded. As a matter of fact, I will say for the record that I am
confident that the present wording of the instructions is a far
71
4. Notice of aggravating-factors evidence.
Finally, with respect to the evidence of aggravating factors,
defendant contends that the court erred in permitting the mother of the
child whom he had abused to testify because she was not named among
the witnesses identified in the prosecutor's pretrial notice. That notice
must be given pursuant to section 190.3, which provides in pertinent
part: "Except for evidence in proof of the offense or special
better state of affairs for the defendant's presentation of
argument in this case than the CALJIC instructions from which
they were worked up and, therefore, I am presently of the
opinion that they are the most favorable set of instructions to the
defense that can conceivably be justified by the present state of
California law." It appears, however, that counsel had first
expressed his continued objection to consideration of the
evidence of the sexual offenses as an aggravating factor.
With regard to the other-crimes instructions specifically,
counsel stated: "[T]he present other crimes instructions’ as now
set forth are substantially those as proposed by the defendant
and are completely acceptable at this time to the defendant..."
However, we find defendant waived his further claim
that he was entitled to have his jury instructed that before
considering the evidence of the 1971 sex crimes, it must find the
victim submitted as a result of the implied threat of force or
violence. Even assuming arguendo that such subjective
knowledge is legally required, the normal rule is that "a
defendant's failure to request instruction on the elements of the
other-crimes aggravating evidence will preclude him from
raising the issue on appeal." (People v. Davenport (1985) 41
Cal.3d 247, 282 [221 Cal.Rptr. 794, 710 P.2d 861].) Defendant
is unpersuasive in arguing that he should be excepted from this
general rule.
72
circumstances which subject a defendant to the death penalty, no
evidence may be presented by the prosecution in aggravation unless
notice of the evidence to be introduced has been given to the defendant
within a reasonable period of time as determined by the court prior to
trial. Evidence may be introduced without such notice in rebuttal to
evidence introduced by the defendant in mitigation."
In the notice of evidence in aggravation the prosecutor included the
accusation of sexual offenses on the child victim, adding in a
supplemental notice filed four days later a police report of an interview
with the child detailing the assaults. That report mentioned the child's
mother, stating that the victim had reported the incidents to her mother
two years after they occurred. Neither the notice, nor the police report,
advised that the mother would be called to testify that she had confronted
defendant with the child's accusation, which he had not denied. The
mother's testimony was admitted at the penalty trial as evidence of an
adoptive admission of the conduct by defendant. Defendant was notified
that the mother would be called on the morning she testified. The
prosecutor advised the court and defense counsel that he had first spoken
with the witness that morning and only then learned that she had
corfronted defendant with the child's accusations. Defendant's objection
to admission of the testimony was overruled. Defendant contends that
this was prejudicial error since the adoptive admission was the only
penalty phase evidence of aggravating factors apart from the victim's
own testimony regarding the sexual offenses and the evidence of her
hearsay statements about them.
Defendant, however, did not object to admission of the evidence on
the ground he now asserts in support of his claim of error. Rather, he
explained to the court before the penalty trial began that he would object
to admission of the mother's testimony on grounds that the hearsay
statements would deny his right of confrontation and cross-examination,
a claim he does not renew on appeal. He did state in addition that he had
not been furnished with anything that described what the proffered
testimony would be and had not been able to anticipate that such
testimony would be offered, an objection that appears to refer to failure
73
to make pretrial disclosure of evidence, not failure to comply with the
notice requirement of section 190.3. Finally, defense counsel stated: "It's
essentially an evidence brought on a hearsay objection. [Sic.]" When
the testimony was actually offered, the objection was based solely on
denial of defendant's confrontation rights.
Even under a broad reading of the objection as explained to the
court before the penalty trial commenced, however, we find no error in
admitting the evidence. Section 190.3 has been construed as requiring
pretrial notice of the actual evidence on which the prosecution intends
to rely to establish aggravating factors at the penalty phase. (Keenan v.
Superior Court (1981) 126 Cal.App.3d 576, 586-587 [177 Cal.Rptr.
841]. See also People v. Phillips (1985) 41 Cal.3d 29, 72, fn. 25 [222
Cal.Rptr. 127, 711 P.2d 423].) The apparent intent underlying that
notice provision, however, is to afford capital defendants notice of the
evidence actually to be used at the penalty phase without the necessity
of resort to the discovery procedures utilized to obtain information about
the evidence on which the prosecution may rely to establish guilt, i.e., an
accused is entitled to any pretrial knowledge of any unprivileged
evidence. Therefore, the prosecutor must reveal all evidence of which
it is then aware. (Accord, People v. Keenan (1988) 46 Cal.3d 478, 524
[250 Cal.Rptr. 550, 758 P.2d 1081].)
Nothing in the language of section 190.3, however, suggests that it
was intended to grant the defendant any greater rights with respect to
penalty phase evidence, or that evidence of which the prosecution had
no knowledge when the original notice is given must be excluded. Such
a construction would be inconsistent with the purpose of section 190.3
that the jury be made aware of all of the factors bearing on the penalty
decision. As with guilt phase evidence of which the prosecution
becomes aware after compliance with the initial discovery request, the
defendant is entitled to prompt notice of the newly discovered evidence,
and, if necessary, to a reasonable continuance to enable him to prepare
to meet that evidence. If the prosecution delay is unreasonable or
unexcused or if the delay will prejudice the defense, the court must
exclude the evidence. (See People v. Howard (1988) 44 Cal.3d 375,
74
419-425 [243 Cal.Rptr. 842, 749 P.2d 279].)
Here the prosecutor notified counsel as soon as he learned of the
evidence, and offered to stipulate to a short continuance to enable
defense counsel to interview the witness. Thus, the failure to give notice
earlier did not bar introduction of the evidence. Since defendant had
notice and was afforded the opportunity to prepare to meet the evidence,
he was not denied any rights under the notice provision of section 190.3.
(See People v. Howard, supra, 44 Cal.3d at p. 425; People v. Miranda,
supra, 44 Cal.3d at pp. 96-97.)
B. Other Penalty Trial Claims.
1. Jury unanimity.
Defendant claims that the court erred in instructing the jury that
unanimous agreement that defendant committed the criminal conduct
asserted as aggravating factors was not required, and that an individual
juror who was satisfied beyond a reasonable doubt that defendant
committed the offense could consider it in making the penalty
determination. We held, however, in People v. Rodriguez, supra, 42
Cal.3d 730, 777-778, that unanimity was not required either by the
statute or as a constitutional procedural safeguard. (See also People v.
Miranda, supra, 44 Cal.3d 57, 99; People v. Ghent, supra, 43 Cal.3d
739, 773-774; People v. Allen (1986) 42 Cal.3d 1222, 1285 [232
Cal.Rptr. 849, 729 P.2d 115].)
2. Failure to delete reference to irrelevant mitigating factors.
Defendant's claim that the court should have deleted reference to
irrelevant mitigating factors from the instructions given to the jury
regarding the aggravating and mitigating factors to be considered in
determining the appropriate penalty is one rejected by this court in
several recent cases. As we explained in People v. Melton, supra, 44
Cal.3d 713, 770-771, giving instructions as to all of the statutory
aggravating and mitigating factors ensures that the jury is aware of the
75
- complete range of factors that the state considers relevant to the penalty
determination. With that knowledge the jury is better able to place the
individual defendant's conduct in perspective, and thus its exercise of
discretion to select the appropriate penalty is further channeled and
directed as required by the Eighth Amendment. (See Gregg v. Georgia
(1976) 428 U.S. 153, 192 [49 L.Ed.2d 859, 885, 96 S.Ct. 2909].)
Reference to all statutory mitigating factors, moreover, ensures that
the defendant is not prejudiced by the omission of any that the jurors
might conclude do apply. (People v. Ruiz (1988) 44 Cal.3d 589, 619
[244 Cal.Rptr. 200, 749 P.2d 854].) A jury advised by the court to
consider any statutory factor that is applicable is capable of making that
determination. (People v. Ghent, supra, 43 Cal.3d 739, 776-777.)
3. Permitting consideration of defendant's age.
Defendant next contends that the court erred in instructing the jury,
in the language of factor (i) of section 190.3, that among the factors to
be considered in determining the penalty, if relevant, is "[t]he age of the
defendant at the time of the crime." He contends age may be considered
only as a mitigating factor, but the failure of the court to so advise the
jury permitted his age to be considered as an aggravating factor.
In People v. Rodriguez, supra, 42 Cal.3d 730, 789, we held that
- "mere chronological age, a factor over which one can exercise no
control, should not of itself be deemed an aggravating factor." (Italics
added.) We have not condemned all reference to age, however. Mere
chronological age by itself is something over which a defendant has no
control, and therefore is not relevant to the penalty decision as either a
mitigating or an aggravating factor. The age "factor," however, permits
the jury to consider "any age-related matter suggested by the evidence
or by common experience or morality that might reasonably inform the
choice of penalty. Accordingly, either counsel may argue any such
age-related inference in every case." (People v. Lucky (1986) 45 Cal.3d
259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052].)
76
In this case, although the court gave no supplementary instruction
regarding the age factor, the prosecutor's argument appropriately placed
that factor in the perspective approved by this court in Lucky and
Rodriguez. His argument was structured in such a way that the jury was
first reminded that the court had already advised them of the various
factors to be considered in the penalty determination. He did not
expressly refer to each factor in discussing what the evidence reflected
as to the circumstances of the offense and of defendant. He made no
reference to the "age" factor as such, but stated: "Mr. Jennings is no
neophyte. He was 32 years old at the time these crimes against Violet
Newman were committed. He was no 18-year-old, or 19-year-old. Wise
to the ways of the world; had lived outside the family home; had
married; had children; had substantial contact with the police in his work
as an informant. No neophyte at all."
The jury was given appropriate guidance regarding the relevance of
the age factor by this argument.
4. Consideration of excessive special circumstances.
The instructions given at the penalty phase, again mirroring the
statutory language (§ 190.3, factor (a)), advised the jury that in
determining the penalty it should take into account: "The circumstances
of the crime of which the defendant was convicted in the present
proceeding and the existence of any special circumstances found to be
true...." Defendant claims that this instruction erroneously permitted the
jury to consider both the robbery special circumstance and the burglary
special circumstance even though both arose out of the same set of facts
arising from a single criminal objective.
This claim, based on the plurality opinion in People v. Harris
(1984) 36 Cal.3d 36, 60-67 [201 Cal.Rptr. 782, 679 P.2d 433], was
rejected by the court in People v. Melton, supra, 44 Cal.3d 713,
765-767. In this case there was no suggestion by the prosecutor that the
special circumstances which the jury had found true or that any other
aggravating factors should be considered mechanically, that is that the
number of factors or special circumstances should be determinative in
77
the penalty decision.” To the contrary rather than exploiting the sheer
number of special circumstances, again without special mention of them,
the prosecutor asked the jury to consider the actual circumstances of the
22. With some prescience (see People v. Allen, supra,
42 Cal.3d 1222, 1276-1277; People v. Brown (1985) 40 Cal.3d
512, 541 [220 Cal.Rptr. 637, 709 P.2d 440], revd. California v.
Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]),
the prosecutor explained to the jury: "It is not a question of
simply counting up the numbers of factors on one side and
placing them against the number of factors on the other side.
What it involves is a weighing process that requires you to bring
to the thought process and deliberation process a subjective
process of placing weight, value upon the items that you have
been directed to consider, and in a very real sense what is
brought to that process is the very value system that you have
individually and as representatives of the community from
which you come.
"How you give weight to each of these factors that you
have been directed to consider and take into account will in
large measure be an expression of the values held by you
individually as representatives of this community in looking at
the facts of this case..."
Defendant's counsel reemphasized this point during his
argument: "I think it's appropriate that I tell you again that this
is not a process of arithmetic that you are to enter upon. This is
not a matter of deciding if there are six aggravating factors and
five mitigating factors... Your function is to weigh how
important any one of those factors might be and to then, based
upon the weight of those factors that are on either side of your
scale, find out what this tells you that you must do for a verdict
in this case."
78
crime and the societal values which defendant's conduct invaded.2”’
5. Instruction to disregard consequences of verdict.
In People v. Brown, supra, 40 Cal.3d 512, 537, footnote 7, we held
that CALJIC No. 1.00, instructing the jury that it should reach a just
verdict "regardless of what the consequences of such verdict may be,"
should not be given at the penalty phase of a capital trial. In this case,
tried before our Brown decision, that instruction was among the
introductory penalty phase instructions given by the court prior to the
arguments of counsel.
23. During the argument, in which he asked the jury to
focus on "who, where, why, and how," the prosecutor referred
to the location in which the offenses occurred, stating: "[T]here
is something important that stems from our system of values
about where this crime occurred. You've heard from the time
you were small probably the phrase, 'A man's house is his
castle.' That's an expression of value.... Crimes of which Mr.
Jennings has been convicted violate that value to the very core,
committed in the home of Mrs. Newman and in her own bed,
aggravating in the extreme."
The prosecutor referred to the robbery only in his
general discussion of "why" the crimes had been committed,
suggesting "pleasure, personal gain, and a desire to exploit
somebody else. You see, it does make a difference why a crime
is committed. It does make a difference, and if Mr. Jennings
had stolen from Mrs. Newman because he had no food or
because he had a family that had nothing and he was the sole
source of their support, one could understand with some
compassion that kind of motivation, but what was his
motivation? Pleasure stealing of money, personal gain,
pleasurement ... The 'why' strikes at values that are important to
each of you."
;
79
Our disapproval of the instruction lay in its potential to diminish the
jury's sense of responsibility for the penalty decision it was to reach
since the precise issue before the jury — whether the penalty shall be
death or life imprisonment without possibility of parole — is the
"consequence" of the verdict. Instructions which lead a jury to believe
that responsibility lies elsewhere for determining that death is the
appropriate penalty are constitutionally impermissible. (Caldwell v.
Mississippi (1985) 472 U.S. 320, 328-329 [86 L.Ed.2d 231, 239, 105
S.Ct. 2633]; People v. Milner (1988) 45 Cal.3d 227, 253 254 [246
Cal.Rptr. 713, 753 P.2d 669].)
It is clear, however, in this case that the jury was not misled and did
understand that the consequences of the verdict were the personal
responsibility of the jurors. The prosecutor acknowledged the serious
nature of the task. Defense counsel referred to the function of the jurors
as "frightening," and as the exercise of godlike power to take human life.
We are satisfied, therefore, that the instruction, although erroneously
given, was not prejudicial.
6. Brown (CALJIC No. 8.84.2) error.
The instructions to the jury regarding its consideration of the
evidence of aggravating and mitigating factors told the jurors simply that
"if you conclude that the aggravating circumstances outweigh the
mitigating circumstances, you shall impose a sentence of death." The
instructions did not elaborate on the duty of the jury to ensure that the
jurors were aware both that the weighing process was not a mechanical
one and that the weight to be assigned to any factor was left to their
judgment, and of the fu
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