Opinion
For Bryan Joseph Mincey, Petitioner: Jack G Cairl, LEAD ATTORNEY, Law Offices of Jack G Cairl APC, Alhambra, CA; Michael S Magnuson, LEAD ATTORNEY, Michael S Magnuson Law Offices, Whittier, CA.
For Jeanne Woodford, as Warden of San Quentin State Prison also known as, Daniel Vasquez, Respondent: Kevin R Vienna, CAAG Office of Attorney General of California, San Diego, CA; Meredith S White, CAAG - Office of the Attorney General, California Department of Justice, San Diego, CA.
DEATH PENALTY CASE ORDER ON REMAINING CLAIMS IN FIRST AMENDED PETITION
PHILIP S. GUTIERREZ, United States District Judge.
Petitioner Bryan Joseph Mincey was convicted of the first degree murder of his girlfriend's five-year-old son, James Brown, Jr. Petitioner was also convicted of endangering a child in three felony counts and two misdemeanor counts. The jury found true a torture murder special circumstance allegation, and Petitioner was sentenced to death. On direct appeal, the California Supreme Court reversed the misdemeanor child endangerment convictions, and otherwise affirmed Petitioner's convictions and sentence.
The trial court reduced the felony child endangerment convictions to misdemeanors at sentencing. People v. Mincey, 2 Cal.4th 408, 426 n.1, 6 Cal.Rptr.2d 822, 827 P.2d 388 (1992).
Petitioner initiated the instant federal habeas proceedings and filed a Motion for Evidentiary Hearing. Before resolution of that motion, Petitioner was granted penalty phase relief through summary judgment. (Order Granting Petitioner's Motion for Order that There Is No Substantial Controversy that Petitioner Is Entitled to Relief on Claim XLV; Findings of Fact and Conclusions of Law, March 14, 2001 (Pfaelzer, J.).) The Court held that Petitioner was entitled to relief from his death sentence because the torture murder special circumstance instruction permitted the jury to find him death-eligible without finding intent to torture, in violation of the Eighth Amendment's narrowing requirement. (Id. ) Following that order, the Court observed that in light of Petitioner's " relief via summary judgment on penalty phase issues[, ] . . . certain issues within the outstanding motion for evidentiary hearing have been mooted." (Denial without Prejudice of Motion for Evidentiary Hearing; Briefing Schedule for Renewed Motion, September 18, 2002 (Pfaelzer, J.); cf. Petr's Notice of Mot. and Mot. for Evid. Hr'g, February 4, 2003, at 6 (" [A]ll of Mincey's penalty phase and special circumstance claims have been mooted; leaving only Mincey's claims relating to his conviction for first degree murder").) The Court ordered a renewed motion for evidentiary hearing to be filed.
Petitioner then moved for an evidentiary hearing on claims of ineffective assistance of counsel, prosecutorial misconduct, and violations of his rights to a fair trial, to confrontation of witnesses, and to due process. The Court granted Petitioner's motion in part and held an evidentiary hearing on June 4 and June 5, 2014. (Order Granting in Part and Denying in Part Motion for Evidentiary Hearing, July 5, 2012 (" Order Granting in Part an Evidentiary Hearing").) On June 27, 2014, the Court denied Petitioner's evidentiary hearing claims. (Order Denying Claims 12(C)(6), 16(F), 16(I), and 17, June 27, 2014.) The Court directed the parties to brief the merits of Petitioner's remaining claims. (Order for Merits Briefing on Remaining Claims, June 5, 2014, at 2.) The parties completed the briefing on February 23, 2015.
As set forth below, the Court denies Petitioner's remaining guilt phase claims for relief. The Court dismisses as moot any penalty phase claims for relief that have not been formally adjudicated.
I. Deference to State Court Decision
Because Mincey filed his Petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), AEDPA does not govern his claims. ( See Minute Order, April 27, 2004 (Walter, J.)); Stankewitz v. Woodford, 365 F.3d 706, 713 (9th Cir. 2004). " '[S]tate court factual findings . . . under the pre-AEDPA law which governs this case . . . [are] entitled to a presumption of correctness unless they are not fairly supported by the record.'" Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2011) (internal quotation omitted); see also Thompson v. Keohane, 516 U.S. 99, 107-11, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). " [M]ixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations . . . are not facts in this sense." Thompson, 516 U.S. at 110 (internal quotation omitted). Where the application of a legal standard is involved, the " ultimate question . . . is a matter for independent federal determination." Id. (internal quotation omitted).
II. Competency Hearing of Wendy Brown
As discussed in the Court's Order Granting in Part an Evidentiary Hearing, Petitioner argues in Claim 6 that the trial court's " admission of Wendy Brown's incompetent and unreliable testimony constituted error" and that the admission and reliance upon her testimony violated his constitutional rights. (First Am. Pet. for Writ of Habeas Corpus (" Pet.") at 25-26, 35; Order Granting in Part an Evidentiary Hearing at 22-28.) He alleges that the hearing to determine Wendy's competence to testify was constitutionally inadequate because (a) the judge asked Wendy " approximately three questions to determine whether she understood the difference between the truth and a lie; " (b) " never probed beyond Wendy's understanding of the difference between the colors black and white; " (c) did not seek the assistance of a child psychologist; and (d) " glossed over Wendy's understanding of the penalty for perjury, simply asking if she promised to tell the truth." (Pet. at 27.)
As the Ninth Circuit stated in Walters v. McCormick :
Where state or federal law provides that a competency determination must be made, failure to conduct an appropriate hearing implicates a defendant's due process rights. Sinclair v. Wainwright, 814 F.2d 1516, 1522-23 (11th Cir. 1987) (competency of insane witness); see Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (due process claim arising out of exclusion from child's competency hearing). After a defendant raises a colorable objection to the competency of a witness, the trial court must perform 'a reasonable exploration of all the facts and circumstances' concerning competency. Sinclair, 814 F.2d at 1523.
Walters v. McCormick, 122 F.3d 1172, 1176 (9th Cir. 1997) (internal citations edited). The Circuit also noted that " [n]o federal court has held that the Constitution places limits on allowing even the youngest child to testify at trial." See id. at 1176 (citing Stincer, 482 U.S. at 742 n.12 (observing that several states impose no competency requirement)). The Circuit relied upon Sinclair v. Wainwright, in which the Eleventh Circuit addressed the due process implications of the required competency hearing. Sinclair explained:
[A]n opposing party may challenge competency, whereupon it becomes the duty of the court to make such an examination as will satisfy the court of the competency of the proposed witness. And if the challenged testimony is crucial, critical or highly significant, failure to conduct an appropriate competency hearing implicates due process concerns of fundamental fairness. . . .
If the witness was incompetent, then, unless admission of his testimony was harmless beyond a reasonable doubt, a violation of due process should be found . . . .
814 F.2d at 1522-23 (internal citations omitted; emphasis added); see also Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding that a due process violation is harmless unless the error " had substantial and injurious effect or influence in determining the jury's verdict").
Because Petitioner's claim regarding Wendy's testimony is record-based, the Court declined to hold an evidentiary hearing and did not reach its merits in the Court's prior order. ( See Order Granting in Part an Evidentiary Hearing at 24, 27-28.) Nevertheless, in the course of deciding other, related claims, the Court held that Petitioner failed to show prejudice from the introduction of her testimony. ( See id. at 22 n.4, 32, 33-35.) The Court explained that, among other factors, " [t]he distinctions between Wendy's testimony and Petitioner's statements to police are minimal, as is any effect of Wendy's testimony in corroborating or compounding Petitioner's statements." (Id. at 32.) Likewise, the Court now holds as to Claim 6 that Petitioner has failed to demonstrate that any error in the admission of Wendy's testimony had a substantial and injurious effect or influence in determining the jury's verdict. Accordingly, Petitioner cannot establish a due process violation. Claim 6 is DENIED.
III. Exclusion of Evidence Regarding Sandra Brown
In Claim 8, Petitioner alleges that the trial court's exclusion of certain evidence regarding Sandra Brown violated his constitutional right to present his defense. (Pet. at 39-41.) Petitioner contends that the evidence " was relevant to show Sandra Brown's responsibility in the death of her son . . . ." (Id. at 41.) Specifically, Petitioner sets forth:
evidence about Sandra Brown's history as an abused child, and its relationship to her subsequent abuse of her children. Sandra Brown's parents were alcoholics and substance abusers. Sandra Brown was raised in an environment in which violence was the method used to discipline children. Her parents' physical abuse of her caused her to be placed in foster care when she was approximately eight years old, . . . for one and a half years[, where] . . . she exhibited aggressive and physically abusive behavior toward other children as well as a need to dominate those around her . . . .
evidence of Sandra Brown's drug use . . . including marijuana and amphetamines. . . . Sandra Brown was abusing amphetamines during the time period immediately preceding the death of her son James. The blood sample taken from Sandra Brown at 6:42 am the morning of December 23, 1983 showed a level of 190 nanograms/[mL] of amphetamines. . . . '[S]peed, ' or []amphetamine, is a powerful synthetic stimulant with effects very similar to cocaine, but much longer lasting and cheaper to use. Its use causes irritability, paranoia, anxiety, mental confusion, poor judgment and hallucinations. Taken habitually, prolonged use can result in violent, suicidal and homicidal thoughts[; and]
evidence of Sandra Brown's prior abuse and negligent treatment of James and Wendy. . . . They were often unwashed and their clothes were filthy[; ] . . . James was discovered at school to have glue in his genital area[; and] Wendy Brown told her aunt, Anula Brown, just before the trial, that Sandra Brown had . . . kicked Wendy's front teeth out. Sandra Brown often beat the children with a belt or a board as well as with her hands[, and] . . . on one occasion threw them into the back of a truck by their hair. [S]he made her children stay completely still in sitting positions for long periods of time and beat them when they moved[, and] . . . made them sit in their own urine, causing them to develop rashes on their buttocks. Sandra Brown was sexually promiscuous and would blindfold her children so that they would not see her having sex with male visitors.
(Pet. at 39-40.)
A. Trial Court Rulings and Decision on Direct Appeal
The trial court excluded testimony regarding Sandra's drug use at times other than the night of the victim's death. (RT 4163.) It did not state a rationale for doing so, but the prosecutor had objected to the evidence as irrelevant. (Id. at 4162-63.) The court also excluded testimony " as to individual unrelated acts committed by Sandra on the bodies of the children . . . or observation of [those] injuries." (Id. at 4169-70.) The court observed that " Sandra's abuse of the children has been conceded and testified to, " and it considered whether the evidence would be cumulative. (Id. at 4168.) The court concluded that allowing evidence of Sandra Brown's prior acts of abuse, without allowing corresponding evidence of Petitioner's prior acts of abuse, would " put in half a story" and would not allow the jury " the ability to make a total analysis of that evidence." (Id. at 4169.) The court explained, " You cannot conclude from the evidence that because Sandra did certain things in the past that she did these things in the present, because Mr. Mincey did those things in the past and therefore it's equally reasonable to say that Mr. Mincey did them in the present." (Id. )
On direct appeal, the California Supreme Court held that the trial court acted within its discretion because the evidence would be cumulative and would require an undue consumption of time or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury, as proscribed by California Evidence Code § 352. Mincey, 2 Cal.4th at 440. The court also held that " [a]pplication of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant's right to present a defense." Id.
B. Legal Standard and Analysis
The United States Supreme Court explained in Holmes v. South Carolina that although the Constitution:
prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Plainly referring to rules of this type, we have stated that the Constitution permits judges 'to exclude evidence that is repetitive . .., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.' Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). . . . [T]his principle [applies] . . . in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged.
547 U.S. 319, 326-27, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (holding that evidentiary rule barring introduction of evidence of third party guilt where prosecution has introduced " strong" forensic evidence violated the defendant's right to a meaningful opportunity to present a complete defense) (internal citations omitted and edited).
Petitioner argues that Sandra Brown's abuse of her children at other times supports his defense that she was the more culpable abuser on the night of the victim's death. The Ninth Circuit has rejected a comparable argument by a defendant that evidence of habitual behavior must be admissible in his defense to show behavior in a particular instance. In Spivey v. Rocha, the defendant, accused of second degree murder and assault with a deadly weapon, claimed that one victim was known to carry a gun and that he, the defendant, had armed himself in self-defense. 194 F.3d 971, 973, 978 (9th Cir. 1999). The trial judge excluded evidence of the victim's gang affiliation, over the defendant's argument that it supported his belief that the victim might be armed. Id. at 977. The Ninth Circuit found no due process violation, on the basis that " the tendency of members of a gang to carry weapons does not lead reasonably to any inference as to whether a gang member was armed on a given occasion." Id. at 978 (internal quotation omitted).
The Circuit likewise found no due process violation, on more specific evidence of third party culpability, in the trial court's application of California Evidence Code § 352 in Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983). Defendant Perry was accused of assaulting a woman in Golden Gate Park. The trial court excluded evidence that another man was convicted of the robberies and rapes of two women in the same area of the park, one three years prior and one only an hour prior to the charged assault. See Perry, 713 F.2d at 1449. Perry and the convicted man were both black, were similar in height and weight, had " distinctive 'sectionally braided' hair" on the day of the assault, and were wearing a brown jacket and blue pants. See id. The trial judge excluded the evidence under § 352 because the two men did not look sufficiently similar in photographs and misidentification was unlikely. See id. The Ninth Circuit found no due process violation from the exclusion of the evidence because it was " sufficiently collateral and lacking in probity on the issue of identity . . . ." Id. at 1455.
Here, notwithstanding the trial court's rulings, the jury heard evidence that a blood sample taken from Sandra Brown at 6:42 a.m. on December 23, 1983, the morning of her arrest, tested positive for amphetamine at a level of 190 ng/mL. (RT 3372, 3495.) The jury learned that amphetamines are stimulants and can make the user more excitable, stimulated, hyperactive, and restless and can cause apprehensive behavior and paranoia. (Id. at 3687-88.) The jury heard testimony that amphetamine psychosis is very similar to paranoid schizophrenia, that " anybody that takes an excessive amount of amphetamine will become psychotic, " and that amphetamine psychosis presents the possibility of delusions and hallucinations. (Id. at 4808-09.) The jury also heard expert testimony that based upon a substantial volume of police reports, the expert formed the impression that " a good deal of physical abuse of the children had taken place probably by both parties [Sandra Brown and Petitioner] with an unknown extent by one party or the other . . . ." (Id. at 4273.) Wendy Brown herself testified that on the night of her brother's death, her mother whipped her with a belt, spanked her brother, and whipped her brother with a belt. (Id. at 3747-49.)
In light of the issues and evidence before the jury, the trial court's exclusion of additional evidence as cumulative and as requiring an undue consumption of time or creating a substantial danger of undue prejudice, confusion of the issues, or misleading the jury did not deprive Petitioner of a meaningful opportunity to present a complete defense. The court's exclusion of evidence concerning Sandra Brown's history as an abused child and additional evidence of her prior abuse and neglect of her children did not deprive Petitioner of due process. The evidence would have substantially risked creating undue prejudice and confusion of the issue before the jury, namely, whether Petitioner committed the charged acts on the night of the victim's death. See Holmes, 547 U.S. at 326-27; Spivey, 194 F.3d at 978. Regarding evidence of Sandra Brown's drug use, there was evidence before the jury that is nearly identical to that Petitioner cites as excluded. Accordingly, Petitioner has failed to show a violation of his due process rights through the trial court's ruling. Claim 8 is DENIED.
IV. Competent Mental Health Expert Assistance
In Claim 10, Petitioner alleges that Drs. Oliver, Rath, and Forbes, " [t]he mental health professionals called to testify by the defense[, ] each failed to provide competent assistance . . . ." (Pet. at 46.) Petitioner relies upon Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) in support of his claim. (Petr's Br. at 18.) In Ake, the Supreme Court held that " when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." 470 U.S. at 74. The Court reached " a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness." Id. at 83. " [T]he State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id.
To establish a constitutional violation, Petitioner must, therefore, demonstrate that the state denied him access to a competent psychiatrist and appropriate examination and assistance. Harris v. Vasquez, 949 F.2d 1497, 1516 (9th Cir. 1991). In Harris, the Ninth Circuit found no constitutional violation " because the state did in fact provide Harris with psychiatric assistance. The state provided Harris with access to any competent psychiatrist of his choice when it gave Harris the funds to hire two psychiatrists from the general psychiatric community. The state did not limit Harris's access to psychiatric assistance in any way." Id. (emphasis in original). The circuit court emphasized:
A judicial evaluation of a psychiatrist's opinion or advice is not essential to the accuracy and fairness of the criminal process. The availability of such a judicial evaluation in a federal habeas proceeding would allow a defendant who has been given access to competent psychiatric assistance under Ake to establish a constitutional infirmity to his death penalty through the opinions of new psychiatrists who, [many] years later, offer different opinions. Although we recognize that a defendant's access to a competent psychiatrist might increase the likelihood of an accurate conviction, we are not persuaded that collateral 'psychiatric medical malpractice' review of the opinions of defense psychiatrists freely selected by the defendant or his counsel serves the same goal. . . . Allowing a defendant to search for a new psychiatrist whose opinion might undermine the psychiatric assistance received by defendant at trial does little to further the objectives of fairness and accuracy in criminal proceedings.
Id. at 1520.
Here, Petitioner was given funds to hire, and did hire, two psychiatrists, two psychologists, and a psychopharmacologist to provide assistance. Petitioner attempts to distinguish Harris by arguing that " [t]he situation here is different because these experts failed to competently perform the threshold tasks of obtaining background information on Mr. Mincey and administering diagnostic tests according to standards established by the profession, and thus were incapable of reaching informed, competent opinions." (Petr's Br. at 19-20; see also id. at 18 (citing Wallace v. Stewart, 184 F.3d 1112, 1118 n.7 (9th Cir. 1999) (" The failure of a psychologist retained on Wallace's behalf to make a proper inquiry as to Wallace's background may also constitute a failure to provide competent psychiatric advice in violation of Ake" )).)
Petitioner challenges only the competency of psychologist Craig Rath and not that of Rex Beaber, who testified at trial but did not examine Petitioner. ( Cf. Mot. for Evid. Hr'g at 71 n.12.) It appears from the record that psychopharmacologist Ronald Siegel was retained by the defense but did not examine Petitioner and did not testify at trial. ( Cf. RT 3412-20, 4226-30.)
Even if Petitioner's position could have merit, his claim fails on his own allegations. Dr. Rath did, in fact, conduct psychological testing (Pet. at 48; Petr's Br. at 22), review " [m]any hundreds of pages of police reports and investigative officers' reports . . . [as a] test of validity and reliability" of Petitioner's statements, and obtain a lengthy medical and social history from Petitioner. (RT 4271-90.) Petitioner's only allegation as to Dr. Rath is that he " did not administer the [psychological] tests correctly and failed to score or interpret those tests accurately." (Pet. at 48; Petr's Br. at 22.) The declaration of Nell Riley, Ph.D. criticizing Dr. Rath's testing, upon which Petitioner relies, constitutes the type of " collateral 'psychiatric medical malpractice' review" rejected by Harris . 949 F.2d at 1520. Claim 10 is, therefore, DENIED.
V. Competence to Stand Trial
In Claim 11(A), Petitioner alleges that " [d]ue to oppressive and dangerous jail conditions Petitioner was traumatized and rendered inattentive and unable to adequately participate in his defense. He was further rendered incompetent by his mental impairments and physical condition . . . ." (Pet. at 62.) In Claim 11(B), Petitioner contends that " the conduct of the San Bernardino Sheriff's Investigators and Jail personnel further destroyed Petitioner's competency, " in that the detectives questioning him " knowingly lied to him, " jail personnel permitted and condoned his abuse and terrorization while in custody, and the trial court and the District Attorney took no action to correct the situation or to continue the trial. (Id. at 66-67.)
The Court addressed the issue of Petitioner's competence to stand trial in its Order Granting in Part an Evidentiary Hearing. ( See Order at 66-78.) The Court denied Petitioner's claim (Claim 16(L)) that trial counsel was ineffective for failing to recognize and address Petitioner's alleged incompetence. The Court concluded that " Petitioner has not shown sufficient indicia of incompetence at the time of trial to give objectively reasonable counsel reason to doubt his competency, or that there is a reasonable probability that Petitioner would have been found incompetent had his competency been raised and fully considered." (Id. at 77.) In response, Petitioner contends that in its prior order, the Court " did not take into account the evidence of oppressive jail conditions upon which the instant claim is based." (Petr's Reply at 15-16.) Petitioner cites the alleged beatings he suffered from other inmates; harassment and humiliation from guards; staples and other objects in his food and his fear of eating meals from the risk of contamination; threats from inmates, trustees, and guards; and his increasingly heightened anxiety and suicide risk. (Id. at 15.)
The Court's prior order reflects its consideration of Petitioner's accounts of firebombs in his cell, attempted hangings (Order Granting in Part an Evidentiary Hearing at 66, 73), humiliation from being forced to walk past the cellblocks in a paper gown, otherwise nude, and exposing his buttocks ( id. at 67), staples, spit, powder, and poison in his food ( id. at 66, 68, 73, 75), death threats ( id. at 67, 73), housing on suicide watch, and being " very shaky and under a great deal of stress" and " want[ing] to die." (Id. at 67.) The Court concluded that Petitioner failed to show a reasonable probability that he would have been found incompetent to stand trial even in view of these allegations. ( See id. at 66-77.)
In addition, as to Claim 11(B), Petitioner does not explain and cites no authority to show how his allegedly coercive police questioning could " destroy[" his competence to stand trial. (Pet. at 66.) Similarly, the alleged actions or inactions of jail personnel, the District Attorney, and the trial court in failing to remedy Petitioner's treatment in custody show no independent basis for finding Petitioner incompetent to stand trial. Claim 11 is, therefore, DENIED.
VI. Prosecutorial Misconduct
A. Griffin Error
1. Allegations and Decision on Direct Appeal
In Claim 12(A), Petitioner alleges that the prosecutor violated Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) by commenting on his decision not to testify. (Pet. at 68-69.) Petitioner takes issue with the prosecutor's remarks that " [f]or one thing, he's never admitted killing, let alone an intent to kill. . . . He was not a witness anyway." (Id. at 69 (quoting RT 5034-35) (emphasis added in Petition).) " By claiming that Petitioner's decision not to testify constituted evidence of 'deception [regarding the facts of the crime], '" Petitioner argues, " the prosecutor bolstered the weakest portion of his case with a completely improper and prejudicial comment." (Id. (quoting RT 5034); see Petr's Br. at 44.) Similarly, in Claim 16(G), Petitioner contends counsel was ineffective for failing to object to the remarks.
Claim 16(G) also faults counsel for failing to request an accomplice instruction as to Sandra Brown's testimony, failing to object to the prosecutor's vouching for her credibility, and waiving (to the extent he did so) arguments for appeal by failing to make an appropriate trial record. (Pet. at 113-14; see also id. at 194-97.) First, because Sandra Brown testified only at the penalty phase, and Petitioner has been granted penalty phase relief, his claims in 16(G) regarding her testimony are DISMISSED AS MOOT. Second, even assuming trial counsel waived any arguments for appeal by failing to make a contemporaneous record, that failure does not in itself entitle Petitioner to habeas relief. That portion of Claim 16(G) is DENIED.
The California Supreme Court denied Petitioner's claim on direct appeal, holding that (1) the claim was procedurally barred for lack of contemporaneous objection and (2) the claim nevertheless failed on the merits. Mincey, 2 Cal.4th at 446. Because the Court agrees that Petitioner's claim fails on the merits, it does not reach any procedural bar to the claim.
2. Analysis
" [T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin, 380 U.S. at 615. Prosecutorial comment:
is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. [¶ ] Prosecutorial comment on the defendant's failure to testify mandates reversal where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal.
Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987) (internal quotation and citations omitted). By contrast, where the prosecutor's comments are " tethered to evidence that was part of the record" and rest " upon statements that [defendant] himself had made, " they do not concern the defendant's failure to testify and thus do not violate his Fifth Amendment rights. Sims v. Brown, 425 F.3d 560, 588, 589 (9th Cir. 2005).
Here, as in Sims, the prosecutor's remarks, taken in context, refer to statements Petitioner made to mental health experts, lay witnesses, and investigating officers. See id. at 587-88. The prosecutor in Petitioner's trial argued:
I asked every single witness who was there that night whether they saw the defendant and how he acted. Mr. Mincey gave every indication of being in control of himself, . . . gave no indication at all . . . that he had done something that he did not intend. . . . Again, if you're going to look at the psychiatric evidence, it's very clear Mr. Mincey was not contrite or apologetic. . . . Also pointing out the taped statement, the first one is made about eight hours after the police are called. And while Mr. Mincey makes bizarre and odd statements on there he's clearly in possession of his mental faculties. . . . [N]o evidence he did not do anything he did not intend. . . . [Y]ou note I did not put [on the prosecutor's chart of evidence] on intent to kill Mr. Mincey's statements. For one thing he's never admitted killing, let alone an intent to kill. I argue to you that the instruction on willfully false. [sic] He was not a witness anyway. Mr. Mincey's credibility is so low in this case that you should disregard basically anything he said about how it happened or what happened. . . . [D]id Mr. Mincey through the lies and deceits that he told, did he know he had intended to kill, and the kinds of facts that could allow a prosecution or the police to show that he had? Yes, he did. [¶ ] Again, he's all the time insisting he knows nothing about any board. Mr. Mincey again by hiding the board and then lying about knowing anything about it is conceding he knows that board could get him in trouble in terms of intent to kill. . . . Mr. Mincey's statement at the scene that a number of witnesses testified, tell them he choked. Mr. Mincey knows the difference apparently between an accidental death and intentional [sic] one. . . . Sure, Mr. Mincey didn't flee the scene. First of all where was he going to go. Second of all why should he. He'd been arrested twice before and beaten it. He was going to lie his way out of it.
" A witness willfully false in one material part of his testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you shall believe the probability of truth favors his testimony in other particulars." (RT 4996.)
(RT 5031-35.)
In context, the prosecutor's remarks address the credibility and implications of statements Petitioner made outside of trial, not his decision to remain silent at trial. The prosecutor's statements did not run afoul of Griffin' s application of the Fifth Amendment prohibition against comment on a defendant's failure to testify. Because the remarks did not impinge upon Petitioner's constitutional rights, counsel was not constitutionally ineffective for declining to raise an objection. Claims 12(A) and 16(G) as to Griffin error are DENIED.
B. Statements of Personal Belief
Also in Claim 12(A), Petitioner alleges that the prosecutor committed misconduct by expressing his personal belief in Petitioner's guilt and referring to extra-record evidence. (Pet. at 70-72.)
1. Statements in Argument
Petitioner takes issue with the following remarks from the prosecutor's arguments to the jury:
o I'm not going to specifically describe to you all the injuries found on James Brown Junior, the five-year-old boy. You'll see the photos that have been referred to. Dr. Root's testimony is going to be extremely extensive on that. Suffice it to say I think at the end of the case there will be no serious issue that he was actually tortured to death. (RT 3245-47);
o If we took away the blows that Sandra Brown delivered James Brown would still be dead. If we took away the Bryan Mincey delivered [sic] the credible evidence indicates that James Brown would still very likely be alive today. So I think on that issue [the relative culpability of Petitioner and Sandra Brown], it is clear that Mr. Mincey is the most legally culpable. (Id. at 5022); and
o Mr. Whitney said there's no evidence that Bryan did everything. I thought I made it clear as many ways as I could the prosecution clearly believes and expects you to believe that Sandra Brown was involved in this beating. We believe and you should believe that Mr. Mincey was the primary perpetrator . There are lots of reasons, but the biggest reason is Wendy's testimony. (Id. at 5073; emphasis added.)
Petitioner argues that the comments " raise the implication that the prosecutor had special knowledge -- 'lots of reasons' -- that James was tortured, and that Petitioner, not Sandra Brown, was the major perpetrator." (Pet. at 71.)
" Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant's guilt and offering unsolicited personal views on the evidence." United States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The prosecutor's:
expressing his personal opinion concerning the guilt of the accused pose[s] two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.
Id. at 18-19. While it is " improper" for the prosecutor to state his or her " belief that the evidence show[s]" the defendant to have committed the charged offense, the " potential harm from this remark [can be] mitigated by . . . defense counsel's argument that the evidence established no such crime." Id. at 17-18 (holding prosecutor's comments did not undermine the fairness of the trial where prosecutor responded to attacks from defense counsel and his remarks, in context, did not imply knowledge of evidence outside the record); see also United States v. Williams, 989 F.2d 1061, 1072 (9th Cir. 1993) (finding no miscarriage of justice where prosecutor's improper statements of opinion " functioned mainly as rhetorical emphasis for the inferences the prosecutor was urging the jury to draw rather than a meaningful personal assurance that the defendants were guilty"). " [I]t is not enough that the prosecutor's remarks were undesirable or even universally condemned. The relevant question is whether the prosecutor's comments so infected the trial as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 180 n.12, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (prosecutor's arguments that he " wish[ed] someone had walked in the back door and blown [defendant's] head off" and " wish[ed defendant] had used [a bullet] on himself" did not deprive petitioner of a fair trial) (internal quotations omitted).
Here, the prosecutor's statements served mainly as rhetorical emphasis for inferences tied to the evidence entered at trial rather than personal assurances. See Williams, 989 F.2d at 1072. The prosecutor did not express a significant " degree of personal opinion" and did not imply " extra record knowledge" of the witnesses' truthfulness. Id. It was in his rebuttal argument, which spans only eleven pages of the trial transcript and addresses a number of topics, that the prosecutor stated that there were " lots of reasons" the prosecution believed Petitioner to be the primary perpetrator. ( See RT 5070-80.) In context, this statement that there were " lots of reasons" served to explain that the prosecutor was focusing on " the biggest reason" and leaving the others aside for brevity. (Id. at 5073); see Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (" [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.").
2. Statement in Voir Dire
During voir dire, the prosecutor stated, " I'm going to have to present some extremely unpleasant evidence. . . . Frankly I have attempted to elect pictures that are bad but not as horrible as they could be." (RT 3071.) Although the statement impermissibly referred to extra-record evidence, defense counsel neutralized the remark by stating:
[A]bout these pictures. If Mr. Haight wants to just select out ones he doesn't think are quite as bad, I'll invite him to give you all of them. I don't want you to think he's holding back something really that gruesome? I've seen the pictures, too, and they're bad. I don't want him to show you something that's gruesome and you think, well, if this is bad what are the rest of them like. So we'll give you all of them.
(Id. at 3123.) In light of counsel's retort, the prosecutor's remark, even considered cumulatively with all other improprieties, did not so infect Petitioner's trial as to deny him due process.
C. References to Non-Physical Torture
Finally, in Claim 12(A), Petitioner challenges the prosecutor's references to " non-physical torture." (Pet. at 71.) Petitioner argues:
The only way the prosecutor could obtain a first-degree murder conviction with special circumstance was to convince the jury that Petitioner tortured James to death. The evidence of torture was wholly speculative. Accordingly, the prosecutor improperly lightened his burden of proof by expanding the concept of 'torture' to include 'non-physical torture.' . . . Torture murder under California law refers to physical pain, not mental or 'non-physical' suffering. The prosecutor urged Petitioner's guilt for a crime that does not exist, and thereby inflamed the jury with horrible images of James being mentally tortured in addition to the physical abuse he endured.
(Pet. at 71 (internal citation omitted).)
The prosecutor referred to " evidence of what I characterize as nonphysical torture . . . . I don't know if that's an accurate description, but compared to the other things that were done to the victims I characterize it as nonphysical torture." (RT 3249-50.) He also referred to " another kind of odd thing . . . that is halfway between I guess physical and mental torture." (Id. at 3251.) In these categories the prosecutor discussed evidence that Petitioner would force James to eat his own feces, continuing after James vomited from doing so, and to sit in uncomfortable positions for extended periods of time, sometimes leading to puncture wounds inside James's knees from a nail placed there, and sometimes with a belt cinched around his waist so tightly that it caused bruising lacerations. (Id. at 3250-51.)
The California Supreme Court explained on direct appeal:
Defendant argues that the prosecutor engaged in misconduct by referring to 'nonphysical torture' in his opening statement. Defendant cites no authority to support his assertion that the mental aspects of torture are irrelevant in assessing criminal liability for torture murder.
In addition to first degree murder, defendant was also charged with five counts of endangering a child. Unjustifiable infliction of physical pain or mental suffering is an element of both felony and misdemeanor child endangering. Cal. Penal Code § 273a(1), (2). The prosecutor's reference to 'nonphysical torture' was appropriate; it referred to matters properly within the scope of the charged offenses.
Mincey, 2 Cal.4th at 448 (internal citation edited).
Petitioner presents no authority in his federal habeas petition to show error in the state court's reasoning or to demonstrate a due process violation from the prosecutor's discussion of nonphysical torture. See Estelle v. McGuire, 502 U.S. 62, 67-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (observing that " it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions, " and concluding that because evidence was admissible under state law, petitioner could not show a due process violation). Claim 12(A) is, therefore, DENIED.
D. Investigation and Charges Filed against Petitioner
In Claim 12(C)(1), Petitioner alleges that the " Sheriff's Department focused on Petitioner as more culpable than Sandra Brown prior to investigation of the case, without a legitimate evidentiary basis to do so." (Pet. at 75 (capitalization edited).) In Claim 12(C)(2), he alleges that the prosecutor similarly over-filed charges against him " without regard to a proper evaluation of the evidence . . . ." (Id. at 78.) He maintains that " [t]here are many reasons the Sheriff's Department and the District Attorney would prosecute Petitioner rather than Sandra Brown, not the least of which was to avoid civil tort liability for failing to remove the Brown children from their mother's abusive home." (Id. at 77; Petr's Br. at 50.) Petitioner also points to the " political expedience" of focusing on him instead of Sandra Brown, " since the likelihood of obtaining a death sentence against the mother of a child victim was virtually non-existent." (Pet. at 78; Petr's Br. at 51.) He adds that " [t]he police likely saw the mentally impaired Mincey as an easy target for prosecution as opposed to the more intelligent and manipulative Sandra Brown . . . ." (Petr's Reply at 22.)
Petitioner relies upon Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1123 (9th Cir. 2001) for the proposition that a criminal defendant's due process right to a fair trial includes the right to a fair and reasonable police investigation. (Petr's Reply at 21.) In Bowie, the Ninth Circuit held that the Commonwealth's " admitted decision before the trial not to investigate concrete documentary evidence suggesting that the prosecution's accomplice witnesses . . . were conspiring to testify falsely" violated the defendant's due process rights. 243 F.3d at 1111. The Circuit applied the well-established principles that a conviction cannot rely upon the knowing use of false testimony, and that law enforcement cannot act in bad faith to fail to collect potentially exculpatory evidence. Id. at 1116-17. The Circuit did not establish, as Petitioner argues, a broad " right to a fair and reasonable police investigation, " balanced between possible suspects. (Petr's Reply at 21.)
Regarding the prosecutor's decision to pursue capital charges against Petitioner and non-capital first degree murder charges against Sandra Brown, the Court observed in its Order Granting in Part an Evidentiary Hearing:
The record reflects that . . . Petitioner, unlike Sandra, lacked remorse, had not sought help from the police or assisted them, and was the actual killer and intended James's death. (37 RT 5190-95.) The prosecutor acknowledged to the trial court that he had " gotten some unpleasant phone calls" from [community] members " who are unhappy about some of my actions in this case, . . . now and then[, asking] why the codefendant [Sandra Brown] is not facing death. So I'm not sure who they're [spectators in the court] here to pressure, but I'm not happy with it either." (27 RT 3627.) Nevertheless, the prosecutor explained as a witness at Petitioner's penalty phase trial his decision to seek the death penalty against Petitioner and not against Sandra Brown, for reasons showing no conflict of interest or political pressure. (37 RT 5190-95.)
The facts underlying the prosecutor's professed motivations are reflected in the observations of firefighters and police officers responding to the Browns' home (25 RT 3265, 3281, 3310, 3312, 3318, 3328, 3368, 3370-71, 3376, 3381; 26 RT 3429, 3434), and the jury expressed its agreement that Petitioner was the actual killer and intended to kill. Petitioner has presented no evidence to contradict the prosecutor's stated motivations.
(Order Granting in Part an Evidentiary Hearing at 48-49 (internal citations omitted).) As Respondent argues, the United States Supreme Court has held that:
so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file . . . generally rests entirely in his discretion. . . . [T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (internal quotations omitted); (Respt's Br. at 37-38). Petitioner's allegations fail to show such a violation. Accordingly, Claims 12(C)(1) and (2) are DENIED.
VII. Sandra Brown's Treatment by the Prosecution and Unavailability as a Witness
A. Undisclosed Promises
In Claims 12(C)(7) and 20, Petitioner alleges that the prosecution gave Sandra Brown promises of leniency and favorable treatment, which impacted her credibility and reliability as a witness, and which were not disclosed to the defense or the jury. (Pet. at 83-84, 134-38.) Sandra testified only at the penalty phase of trial, and Petitioner has been granted penalty phase relief in this action. The claims are DISMISSED AS MOOT as to the penalty phase of trial. To the extent Petitioner seeks guilt phase relief in Claims 12(C)(7) and 20, Petitioner has not shown a reasonable probability of a different outcome at trial absent any errors, and the claims are DENIED.
B. Unavailability as a Witness at the Guilt Phase
Relatedly, in Claim 21, Petitioner alleges that his constitutional rights were violated because the jury did not learn that Sandra was unavailable to the defense at the guilt phase of trial because she had asserted her Fifth Amendment privilege. (Pet. at 138-41.) Petitioner explains:
The defense subpoenaed Sandra Brown as its first witness. In response, the prosecutor put on the record the fact of Sandra Brown's cooperation with the prosecution of Petitioner's case generally, and that the prosecution had discussed with Brown's attorney what her response should be to the defense subpoena. In response to this information, the defense requested 'the opportunity to at least put her on the stand in front of the jury and ask her if she's going to testify.' (RT 3729.) The trial court denied the request without explanation . . . . [A]gain without elaboration, the trial court granted the prosecution's motion to exclude from the jury the fact that Brown was called by the defense and that she subsequently assert[ed] the Fifth Amendment.
(Pet. at 138-39.) Petitioner argues that the trial court's ruling " gave the jurors the impression that Sandra Brown's testimony would have damaged Petitioner's case." (Id. at 139.) Petitioner asserts that the prosecution cooperated with Sandra to arrange for her to assert her Fifth Amendment privilege when called by the defense but to testify when called by the prosecution. (Id. at 140.) He contends that this " manipulation" also calls for Brown's arrangement with the prosecution to have been disclosed to the jury. (Id. ) " Although the jury was instructed not to consider why Brown was not on trial before them, Brown's culpability was put directly at issue by the prosecution from the beginning of the trial, " he argues. (Id. )
Petitioner concedes that " [t]here is no established constitutional requirement that a criminal defendant is always entitled to inform the jury that a witness called by the defense refused to testify on the basis of privilege against selfincrimination." (Petr's Br. at 84); cf. United States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997) (" It is well established that a criminal defendant may not call a witness if that witness -- whether or not a codefendant -- will merely be invoking his Fifth Amendment right not to testify." (internal quotation omitted)). He argues that the lack of information, nevertheless, was prejudicially misleading in his case and that the jury should have been given a cautionary instruction, citing Bowles v. United States, 439 F.2d 536, 541-42, 142 U.S.App.D.C. 26 (D.C. Cir. 1970). (Petr's Br. at 86-87.) In Bowles, the Court of Appeals for the Federal Circuit held that " no valid purpose can be served by informing the jury that a witness has chosen to exercise his constitutional privilege. That fact is not one the jury is entitled to rely on in reaching its verdict." 439 F.2d at 542. The circuit court remarked that if a party requests it, the trial court should give an instruction that the jury should draw no inference from the witness's absence because he was not available to either side. Id. Defense counsel did not request the instruction in Bowles, which, the court noted, may have been strategically sound:
Petitioner does not allege that counsel requested or should have requested an instruction that the jury draw no inference from Sandra's absence because she was unavailable to the defense. ( See Petr's Br. at 86-87; cf. RT 4016-19.) He argues that this instruction would have been inadequate and the court should have instructed the jury that Sandra asserted her Fifth Amendment privilege and refused to testify when called by the defense, and not to draw any inferences from her doing so. (Petr's Br. at 86-87, 86 n.8.)
Defense trial counsel might well conclude that while a jury would readily understand for itself that defendant couldn't be expected to produce as a witness a man [] who would testify that he had killed the deceased, it might have expected -- in terms of inquiring whether there was a reasonable doubt of guilt -- that the Government would have called [him] to testify that he had not killed the deceased. The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court.
Id. at 542 n.6.
Petitioner's jury may have had the same reaction to Sandra's absence in Petitioner's case; that is, her unexplained absence may have worked in Petitioner's favor, not against it. Petitioner has not demonstrated that he was entitled to inform the jury that Sandra was unavailable to the defense because she had asserted her Fifth Amendment privilege, or that the trial court's rulings denied him due process. Claim 21 is DENIED.
C. Unavailability for Viewing
Finally, in Claim 22, Petitioner alleges that the trial court's refusal to allow the jury to view Sandra at the guilt phase of trial violated his constitutional rights because " the relative strength and size of Brown and Petitioner was a key defense issue . . . relevant to . . . who was primarily responsible for the various physical incidents involving both Petitioner and Sandra Brown." (Pet. at 141-42.) Petitioner explains that the defense theory of the case that Sandra " was in control" of the events leading to the victim's death " required reversal of the general expectations about gender roles and the relative physical strength and aggressiveness of men and women." (Id. at 142.) He adds that the jury should have been permitted to evaluate Sandra's " general demeanor" by viewing her. (Id. )
Defense counsel requested that Sandra, allegedly larger and stronger than Petitioner, be presented to the jury after the court ruled that she would not be called to the stand to assert her Fifth Amendment privilege. (Id. ; RT 4016-17.) The court denied the request without prejudice, stating that Petitioner could renew his motion during the defense case and provide justification to have the jury view Sandra. (RT 4018.)
To entitle Petitioner to federal habeas relief:
[t]he state court's decision to exclude certain evidence must be so prejudicial as to jeopardize the defendant's due process rights. To evaluate whether exclusion of evidence reaches constitutional proportions, th[e] court considers five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Th[e] court must then balance the importance of the evidence against the state interest in exclusion.
Whelchel v. Washington, 232 F.3d 1197, 1211 (9th Cir. 2000) (internal quotations and citations omitted). The Court " must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence." Tinsley v. Borg, 895 F.2d 520, 531 (9th Cir. 1990) (internal quotation omitted).
Regarding the central issue of whether Petitioner committed the charged acts with the required intent, Sandra's size and visible demeanor were not of significant probative value. Petitioner, even if smaller or apparently less aggressive than Sandra, had sufficient strength to kill the forty-five-pound, five-year-old victim as charged. See Mincey, 2 Cal.4th at 443. Although the jury would have been able to reliably evaluate Sandra's size and outward demeanor, her physical qualities were not themselves an essential part of Petitioner's defense. To the extent that her size and demeanor were relevant to the extent of her control over Petitioner and over the events leading to the victim's death, her presentation to the jury was not the sole evidence on the issue. Dr. Rath testified that Petitioner " would more or less support what she was doing . . . [a]nd the overall flavor is one of her more in control than him in terms of directing things. . . . He accepted more direction in general than he gave." (RT 4305.) Weighing these factors against the State's interest in avoiding confusion of the issues and misleading of the jury, the exclusion of the evidence was not so prejudicial as to jeopardize Petitioner's due process rights.
Claim 22 is, therefore, DENIED.
VIII. Waiver of Miranda Rights
In Claim 13, Petitioner argues that his " extensive mental health disabilities" in addition to his amphetamine use " impaired Petitioner's ability to exercise his rational intellect and free will, rendering his Miranda waiver invalid and his subsequent statements involuntary." (Pet. at 85.) Petitioner alleges that he is borderline mentally retarded, has extremely poor abstract reasoning and memory abilities, and has extreme linguistic disabilities that cause him difficulty understanding and pronouncing even basic words. (Id. ) Petitioner cites the opinion of Dr. Riley that he suffers deficits in complex attention, problems organizing and recalling verbal information, and impaired capacity for abstract reasoning. (Id. at 85-86; Writ of Habeas Corpus, Supreme Court of the State of California, In re Mincey, No. S025754 (" SHP") Ex. 37 ¶ 52.) Dr. Riley opined that Petitioner's expressive language disorder and poor memory " would make it difficult for him to relate information about his offense . . . ." (SHP Ex. 37 ¶ 52; Pet. at 86.) Petitioner argues that these deficits, in addition to his amphetamine blood level during the first interrogation, rendered him incapable of giving a voluntary waiver of his rights. (Pet. at 86.)
Petitioner does not dispute that he was advised of his Miranda rights, said that he understood them and that he still wanted to talk to police about James's death and the charges against him, and said repeatedly that his statements were voluntary. ( See RT 3774-75, 3834-35, 3934-36, 4020-21.) Likewise, Petitioner " alleges no coercion of a confession by physical violence or other deliberate means calculated to break his will . . . ." Colorado v. Spring, 479 U.S. 564, 573-74, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (holding that petitioner's " allegation that the police failed to supply him with certain information [namely, the crimes about which he would be questioned] does not relate to any of the traditional indicia of coercion") (internal quotation and alteration omitted).
" The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. . . . The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on 'free choice' in any broader sense of the word." Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). A petitioner's " perception of coercion flowing from the 'voice of God, '" for example, " however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak." Id. at 170-71 (concluding that petitioner's mental state did not render his Miranda waiver invalid). " While it is true that a waiver of one's Miranda rights must be done intelligently, knowingly, and voluntarily, the Supreme Court has never said that impairments from drugs, alcohol, or other similar substances can negatively impact that waiver." Matylinsky v. Budge, 577 F.3d 1083, 1095 (9th Cir. 2009) (internal citation omitted). " [A]n intoxicated individual can give a knowing and voluntary waiver, so long as that waiver is given by his own free will." Id.; see also United States v. Banks, 282 F.3d 699, 706 (9th Cir. 2002) (holding that suspect allegedly under the influence of narcotics and alcohol made a knowing and voluntary waiver where, among other factors, he did 'not appear to have been " incapacitated" by his use of drugs and alcohol, ' selectively answered questions, was able to provide a lock combination, and requested that his girlfriend be contacted to secure his apartment); Shackleford v. Hubbard, 234 F.3d 1072, 1080 (9th Cir. 2000) (finding no reasonable probability that Miranda waiver would have been found invalid had counsel presented evidence of cocaine use, " some level of mental disability, " and fatigue, where petitioner was " capable of asking lucid questions . . . was coherent and articulate throughout the interrogation, " and demonstrated his awareness of the rights being waived and the consequences).
Here, Petitioner's interviews show him to be coherent and able to reason about the charges he faced. Petitioner provided thorough timelines of the events and was able to recall specific addresses and his Social Security number. (RT 3776-79, 3783, 3828-29, 3938, 4023-25.) He understood the charges for which he was arrested. (Id. at 3826-28, 4087.) He had been arrested twice before, including an arrest for child abuse charges approximately one year prior. (Id. at 3785, 3821-22, 3830-31.) He said that if James's autopsy report did not show that James was choking, as Petitioner claimed, he was in trouble in light of his prior case of child abuse. (Id. at 3798, 4111.) He said that he was willing to take a lie detector test because " [m]aybe this time it will keep me out [of jail] and someone that is supposed to be in there . . . ." (Id. at 3830.) He understood that Wendy could testify against him in a trial for homicide and willful cruelty charges and that he could go to prison if convicted, and he said a conviction " sounds like life" as a probable sentence. (Id. ) He questioned whether he would be able to testify at trial that Sandra was the responsible party. (Id. at 3826-28.) He admitted certain acts and questioned how he could be convicted for first degree murder based on only those acts. (Id. at 4087.) When told he would be provided with copies of the interview tapes through his attorney, he responded, " I'll let my lawyer know." (Id. at 4108.) Petitioner thus demonstrated awareness of the rights he waived and the voluntariness of his waivers.
Petitioner's allegations of mental impairments and amphetamine use do not show his waivers of his Miranda rights to be invalid. Accordingly, Claim 13 is DENIED.
IX. Brady Violations and Cumulative Prosecutorial Misconduct
A. Wendy's Pretrial Contacts
In Claim 14(A), Petitioner alleges that the prosecution failed to disclose Wendy's pretrial contacts with Mary Smith, Sandra's mother, and with James Brown, Sr., Wendy's father, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (Pet. at 87-88.) Petitioner contends that the County's decision to remove Wendy from foster custody to stay at Smith's home exposed her to contacts that rendered her testimony unreliable and prejudicial to Petitioner. (Id. at 88.) He further contends that James Brown, Sr. " was enraged with Petitioner and Wendy witnessed this strong bias against Petitioner . .., which tainted her testimony . . . ." (Id. )
" [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Materiality requires " a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
In its Order Granting in Part an Evidentiary Hearing, the Court denied Petitioner's related ineffective assistance of counsel claim, alleging that counsel failed to investigate these pretrial contacts. (Order at 32-33.) The Court held that Petitioner failed to show a reasonable probability of a different outcome at trial absent any deficient performance by counsel in investigating Wendy's pretrial contacts. (Id. at 33-35.) The Court denied an evidentiary hearing on Claim 14(A) on that basis. (Id. at 22 n.4.) Petitioner likewise has not shown a reasonable probability that the result of the proceeding would have been different had Wendy's pretrial contacts been disclosed by the prosecution. His Brady claim thus fails for lack of materiality. Claim 14(A) is DENIED.
B. Edited Portions of Sandra Brown's Taped Statement
In Claim 14(C), Petitioner alleges a Brady violation from the prosecution's alleged non-disclosure of edited portions of Sandra's taped statement to police. (Pet. at 89-90.)
The Court granted an evidentiary hearing on Claim 12(C)(6), which also alleged that the prosecution committed misconduct and violated Brady by " 'secretly editing and tampering with Sandra Brown's taped statement to the police before providing the defense with the tape.'" (Order Granting in Part an Evidentiary Hearing at 56-58 (quoting Mot. for Evid. Hr'g at 61).) The parties conducted discovery, and Petitioner waived his right to an evidentiary hearing on the claim. (Order Denying Claims 12(C)(6), 16(F), 16(I), and 17, June 27, 2014, at 1-2.) Respondent obtained a transcript of Sandra's questioning and interviewed the officers who questioned her. (Id. at 2.) Their interviews revealed no evidence about the contents of her questioning or other exculpatory information, and Petitioner presented no evidence to counter their statements or the transcript. (Id. at 2-3.) The Court held that Petitioner " failed to raise a colorable claim that material, favorable evidence from the recorded interview of Sandra Brown was not disclosed to him" and denied Claim 12(C)(6). (Id. at 3.) The Court DENIES Claim 14(C) on the same ground.
C. Cumulative Prosecutorial Misconduct
Finally, the Court must consider cumulatively the entirety of Petitioner's allegations of prosecutorial misconduct. Petitioner alleged a number of instances of the prosecution's knowing use of false testimony, in violation of Napue, in his Motion for Evidentiary Hearing. ( See, e.g., Order Granting in Part an Evidentiary Hearing at 5-20, 50-56 (concluding that Petitioner failed to demonstrate the falsity of the testimony); cf. id. at 22-32 (concluding that the prosecutor's use of Wendy's testimony was harmless even if it was manipulated by the prosecution).) Any harm from the prosecution's Napue and Brady violations must now be analyzed collectively:
[W]e first consider the Napue violations collectively and ask whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. If so, habeas relief must be granted. However, if the Napue errors are not material standing alone, we consider all of the Napue and Brady violations collectively and ask whether there is a reasonable probability that, but for [the] errors, the result of the proceeding would have been different. At both stages, we must ask whether the defendant received a trial resulting in a verdict worthy of confidence.
Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008) (internal quotations and citations omitted); see also Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011) (applying Jackson ).
Considering the Brady and Napue violations addressed in the instant order and the Order Granting in Part an Evidentiary Hearing, together with all other allegations of prosecutorial misconduct Petitioner raises, the Court concludes that Petitioner has failed to show a reasonable probability that the result of the proceeding would have been different apart from any errors. Petitioner has failed to show that his trial resulted in a verdict not worthy of confidence. Petitioner's cumulative prosecutorial misconduct claim is DENIED.
X. Defense Counsel's Substance Abuse
In Claim 15, Petitioner alleges that defense counsel's substance abuse constituted an actual conflict of interest because it placed his personal interests at odds with those of his client and " impaired his ability to function professionally in a minimally competent manner." (Pet. at 90.) Specifically, Petitioner contends that counsel's cocaine use:
created an actual conflict of interest because (a) his drug habit and related personal problems competed with Petitioner's case for his attention; (b) his substance abuse drained his financial resources, giving him incentive to represent Petitioner for financial gain, even though he knew or should have known he was not able to competently represent Petitioner; and (c) his drug use exposed him to the threat of personal criminal liability, and undermined his professional standing and the vigor of his defense.
(Id. at 90-91.)
The Court denied in its Order Granting in Part an Evidentiary Hearing Petitioner's related claim that counsel's performance was deficient because he was abusing cocaine, was having marital problems, and was in psychological treatment. (Order at 63-66 (Claim 16(J)).) The Court observed that to be entitled to relief based upon counsel's substance abuse problems, Petitioner must demonstrate that counsel's performance fell below the standard of objective reasonableness, to his prejudice. (Id. at 64 (citing Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995)).) The Court noted that counsel's:
admitted substance abuse . . . concluded before he was substituted in as counsel for Petitioner. ( See SHP Ex. 50 ¶ ¶ 31-32 (explaining that counsel joined Alcoholics Anonymous and concluded substance abuse counseling . . . in July 1984, and substituted in as counsel in November 1984).) While counsel notes that he " had done some work on the case in anticipation of [his] substitution, " (SHP Ex. 50 ¶ 32), Petitioner presents no evidence of the nature or extent of that work, the time when it was performed (which still may have been after his substance abuse and therapy concluded), or the way in which it was allegedly deficient and prejudicial. Counsel's description of the effects of his cocaine and alcohol use on his performance did not state that he experienced any of those effects while working on Petitioner's case. ( See id. ¶ ¶ 31-32.)
(Order at 65.)
Because Petitioner has failed to establish that counsel was abusing substances during his representation of Petitioner, he cannot show that counsel held a conflict of interest as result of that substance abuse. Claim 15 is, therefore, DENIED.
XI. Ineffective Assistance of Counsel
A. Inadequate Investigation
In Claim 16(A), Petitioner contends that trial counsel provided ineffective assistance by failing to conduct or obtain an adequate investigation of the case. (Pet. at 96-99.) Petitioner makes no specific allegations of prejudice in his Petition. ( See id. at 99.) In his merits briefing, Petitioner adds that a competent investigation would have produced evidence that Wendy reported Petitioner was intoxicated on the night of the victim's death, and that Wendy said Sandra, not Petitioner, had kicked out her teeth. (Petr's Br. at 63.) Petitioner also adds that had counsel retained a forensic medical expert, the expert could have established that the coroner's conclusions " had no basis in the test results" and that the cause of death was more consistent with the victim being given amphetamines, as Petitioner claimed Sandra had done. (Id. at 65.)
As the Court observed in its Order Granting in Part an Evidentiary Hearing, the investigator's statements from witnesses that Wendy said Sandra kicked out her teeth consist of multiple levels of hearsay. (Order at 34-35.) The Court held that it was doubtful whether the statements could constitute evidence to show Petitioner's entitlement to relief. (Id. at 34-35.) The Court concluded that, even assuming counsel could have demonstrated that Sandra, not Petitioner, kicked out Wendy's tooth (or teeth), Petitioner nonetheless failed to show prejudice from counsel's failure to do so. (Id. at 35.)
The investigator's statement that Wendy reported that Petitioner was intoxicated on the night of the victim's death also constitutes multiple levels of hearsay. ( See SHP Ex. 19 ¶ 6 (investigator's declaration that Wendy's aunt told the investigator that Wendy " told her that the night of the death, Sandra Brown and Bryan Mincey were very 'drunk.' Wendy did not know what they were drunk on, but only stated that they were very intoxicated").) Moreover, it was undisputed at trial that Petitioner's blood showed the presence of amphetamines on the night of the victim's death. (RT 3494.) Additional evidence from Wendy that Petitioner was " very 'drunk, '" on unknown substance(s), in contradiction to Petitioner's blood test result showing no presence of alcohol ( id. at 3491), does not show a reasonable probability of a different outcome at trial. ( Cf. Petr's Reply at 26 (" [W]hether Mincey was under the influence of alcohol is not the issue, and did not go to the defense").)
As to the victim's cause of death, the Court held in its prior order:
Petitioner's allegations of prejudice all rest upon the assertion that trial counsel could have presented evidence of the presence of amphetamines in the victim's body. That assertion is speculative. . . . Although defense counsel may have been able to highlight weaknesses in Dr. Root's testimony and toxicology testing with the assistance of an independent expert or a pre-trial interview of Dr. Root, the Court does not find a reasonable probability of a different outcome at trial had counsel done so.
(Order Granting in Part an Evidentiary Hearing at 21.)
Petitioner's Claim 16(A) fails on the same grounds and is DENIED.
B. Relative Culpability of Petitioner and Sandra Brown
In Claim 16(C), Petitioner alleges:
At the in limine hearings on the admission of evidence regarding Sandra Brown, defense counsel failed to investigate and present a sufficient offer of proof of evidence concerning Sandra Brown and the relevance it had in Petitioner's case. As a result, the court granted the prosecution's motion to exclude all evidence of Brown's history of violence and prior drug use. . . . Even in light of the trial court's consistent guilt phase ruling preventing the defense from presenting evidence suggesting that Brown was more culpable, this evidence would have been admissible to impeach Brown's self-serving penalty phase testimony.
(Pet. at 107; see RT 4159-71 (argument on motion in limine ).)
Petitioner's argument regarding the impeachment potential of the evidence is moot in light of Petitioner's penalty phase relief. Petitioner does not specify what additional, admissible evidence counsel should have offered on the motion in limine beyond the general issues of Sandra's violent behavior, child abuse, and drug use. ( See Pet. at 106-07; cf. Petr's Br. at 66-67 (citing SHP Exs. 17-19 and 67 (investigator's declarations constituting multiple levels of hearsay)); id. at 67 (citing SHP Ex. 22 (interview with Sandra's foster mother relating Sandra's violent behavior as a child) and faulting counsel for making no attempt to review social service files).) Petitioner's counsel argued to the trial court the significance of witness testimony on these issues. ( See RT 4159-71.) Without further specific allegations or evidence of prejudice, Petitioner does not show a reasonable probability that the trial court would have ruled differently on the motion in limine . Claim 16(C) is DENIED.
C. Mental State Defense
In Claim 16(E), Petitioner alleges that trial counsel failed to investigate and present a mental state defense. (Pet. at 109.) Petitioner argues that an adequate investigation and presentation would have shown that he " did not have the premeditation and deliberation, intent to kill or intent to torture at the time of the crime." (Id. ) Petitioner relies upon the alleged shortcomings in the opinions and testimony of Drs. Craig Rath, Lorna Forbes, and Anthony Oliver, pleaded in Claim 10. ( See id. at 45-61, 109.)
The Court addressed Claim 16(E) in its Order Granting in Part an Evidentiary Hearing. (Order at 60-62.) The Court denied an evidentiary hearing on the claim as to Drs. Rath and Forbes. The Court explained that counsel may " 'rely on properly selected experts'" and Petitioner made no allegation that counsel failed to investigate the credentials of Drs. Rath and Forbes or that their credentials were inadequate. (Id. at 62 (quoting Harris, 949 F.2d at 1525).) The Court granted an evidentiary hearing as to counsel's investigation of Dr. Oliver. (Id. at 63.) Following the evidentiary hearing, the Court held that counsel made reasonable efforts to investigate Dr. Oliver's background. (Order Denying Claims 12(C)(6), 16(F), 16(I), and 17 at 10.)
Counsel reasonably retained mental health experts Rath, Forbes, and Oliver. Each examined Petitioner and provided testimony at trial that supported a mental state defense. Dr. Rath testified that " the probability would be that there was not an intent to kill." (RT 4407; see also id. at 4492.) Dr. Forbes testified that Petitioner did not intend to kill or to torture. (Id. at 4625, 4672, 4674; see also id. at 4654, 4666.) Dr. Oliver testified that he did not feel that Petitioner intended to kill. (Id. at 4704-05.) The record, therefore, shows that counsel reasonably relied upon properly selected experts, who provided testimony at trial in support of a mental state defense. Petitioner has not shown counsel's investigation and presentation of a mental state defense to be objectively unreasonable. Claim 16(E) is DENIED.
As the Court has held, " [a]lthough counsel may have made a mistake by continuing to question Dr. Oliver after eliciting his helpful testimony, that action . . . does not amount to an 'error so serious that counsel was not functioning as the " counsel" guaranteed the defendant by the Sixth Amendment.'" (Order Denying Claims 12(C)(6), 16(F), 16(I), and 17 at 10 (internal citation omitted; quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011)).)
D. Arguments against Petitioner
In Claim 16(H), Petitioner alleges that counsel was ineffective in making arguments to the jury that undermined his defense. (Pet. at 114-15.) Petitioner points to counsel's statements: (a) that his occupation often required him to defend guilty clients and that sometimes his clients were " even . . . guilty of everything they're charged with, " allegedly implying that Petitioner was guilty; (b) that " there are a lot of things that we have problems with in this case, " allegedly highlighting problems and showing a lack of confidence in the defense case; and (c) that Petitioner's statements were " inconsistent" and " unreliable, " allegedly impeaching Petitioner and inferring that he believed Petitioner would perjure himself if he took the stand. (Id. at 115.) Petitioner contends that there was no sound strategic basis for the remarks and quotes counsel's declaration that the remarks " were poorly chosen and a mistake for me to have uttered." (Id. (quoting SHP Ex. 50 ¶ 15).)
Petitioner's quotation from counsel's declaration is notably selective. While counsel does provide his opinion that the remarks were a mistake, he also explains that he was " trying to humanize [him]self and gain credibility before the jury . . . . In making such statements I would have been attempting to gain credibility with the jury so they would accept more readily my arguments in his defense." (SHP Ex. 50 ¶ 15.) His approach was not objectively unreasonable:
While confessing a client's shortcomings might remind the jury of facts they otherwise would have forgotten, it might also convince them to put aside facts they would have remembered in any event. This is precisely the sort of calculated risk that lies at the heart of an advocate's discretion. By candidly acknowledging his client's shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case.
Yarborough v. Gentry, 540 U.S. 1, 9, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003); see also Richter, 562 U.S. at 109-10 (2011) (" After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better . . . . Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.").
Counsel's remarks at trial, taken in context, reflect his strategy of attempting to gain credibility with the jury. As the California Supreme Court aptly summarized:
During voir dire, defense counsel mentioned that people sometimes asked him how he could defend a guilty person; his response was that sometimes his clients were innocent and sometimes they were not, and that it was for the jury, not the attorney, to decide the issue of guilt or innocence. (RT 3053, 3140.) The obvious purpose of these remarks was to alleviate possible bias against criminal defense attorneys. The comments also served to emphasize the importance of the jury's task to apply the law. Contrary to defendant's assertion, counsel did not argue against his client's interest.
The other comment challenged by defendant occurred in opening statement when defense counsel acknowledged that the defense had certain problems to overcome: defendant's inconsistent statements, for instance, could be used to impeach his credibility. (Id. at 4227-29.) Counsel's comment apprised the jury of the weak points in the defense, in an effort to mitigate the potential impact of the evidence that the prosecution was expected to present.
Mincey, 2 Cal.4th at 450 (internal citations added).
Because counsel's statements, in context, were not objectively unreasonable, Claim 16(H) is DENIED.
E. Motion to Exclude Sheriffs' Interview Statements
1. Allegations
In Claim 16(K), Petitioner alleges that he was denied effective assistance of counsel because counsel did not move to exclude " highly prejudicial, untrue, emotional and inadmissible portions of the police interrogation of Petitioner." (Pet. at 117.) Petitioner refers to portions of the interviews in which the officers: claimed there was physical evidence connecting Petitioner to the victim's death, repeated statements they allegedly heard from Sandra and Wendy Brown, gave their opinion that they did not believe Petitioner and that it would be difficult for a jury to believe his account, allegedly mischaracterized Petitioner's demeanor during the interviews, and made reference to sexual abuse and to Petitioner's being a " sexual sadist." (Id. at 117-19.) Petitioner alleges that counsel wanted the tapes unredacted because he did not want the jury to know there were gaps in the tapes. (Id. at 119.) Petitioner contends that counsel should have known that the tapes could be professionally edited without leaving obvious deletions. (Id.) Petitioner faults counsel for failing to consider consulting with an audio expert. (Id.) He also contends that the jury could not have imagined any omissions that " could have been any worse for the defense than what was actually heard by the jury. Whatever latitude is to be afforded trial counsel's tactical blunders, the tactics must at least be explained rationally." (Petr's Reply at 27.)
2. Trial Record and Admonishments to the Jury
The contemporaneous record documents counsel's strategy in allowing the jury to hear the tapes in their entirety. Defense counsel stated that he, co-counsel, and the defense investigators had concluded " as a matter of tactics" to allow the jury to hear the tapes unedited with an admonishment from the court in part to prevent jury speculation about any edited portions. (RT 3739.) Counsel requested " a very strenuous admonishment" from the court. (Id. at 3740.) The court provided that admonishment, set forth below, and put on the record (outside the presence of the jury) that counsel had:
agonized long and hard over how to deal with the statements. They have made a tactical decision . . . . [B]y having the tapes played[, ] . . . the jury can actually hear how Mr. Mincey has answered[, ] did answer various questions and what information he volunteered and that sort of thing, get the flavor of Mr. Mincey for the purpose of making it possible for the jury to have some understanding of what the defense believes to be Mr. Mincey's character.
(Id. at 3923.) Counsel agreed with that characterization of his approach and added:
[T]here are a variety of other reasons which I don't necessarily feel compelled to say right now. But generally it falls under the category of letting the jury hear it all in this case, because I think the intent issue is so critical that I feel it's imperative for them to understand not only what his answers were but how he was questioned, what questions were phrased in certain ways, . . . and I intend to argue it at the stage of argument.
(Id. at 3924.)
Before the first interview tape was played, the court admonished the jury:
There are portions of this tape and of another tape that you will hear later in the trial which are objectionable and which the defense has every right to keep from you. But they have discussed this matter among themselves and they want you to -- they don't want you to have any questions about anything that their client said during any of these interviews. . . . [B]ut there are certain matters that you will note, and you must not consider them against Mr. Mincey. The policemen in their efforts to elicit information from Mr. Mincey make some representations that are not true and you will recognize that some of them simply are not true. They will make statements that other persons have told them certain things. Well, you cannot use that material, whether that's true or not, against Mr. Mincey. For example, if an officer says that Sandra Brown told us that you, Mr. Mincey, did something, that cannot be used by you to prove that Mr. Mincey did anything. That's hearsay in its classic sense and we don't have any way of knowing whether or not Mrs., in my hypothetical, whether or not Mrs. Brown made such a statement. And certainly if she did, she was not under oath at the time she made the statement, and again, Mr. Mincey had no ability to confront and cross examine her when she did so. So bear in mind that you are hearing this tape because the defense does not want you to believe that they're trying to keep anything from you. But by the same token, you must not take as established statements made by the police menace [sic] being true merely because they are telling Mr. Mincey these things. They made those statements for the purpose of eliciting from Mr. Mincey certain statements. You'll see that as you go along.
(Id. at 3767-68.) The court twice repeated the admonishment before the jury heard the second and third of Petitioner's taped interviews. In particular, the court told the jury:
[The officers] make statements of, quote, fact to Mr. Mincey. For example, . . . [t]he business about fingerprints on the board. You have already heard the expert testify they did not find fingerprints on the board. But the officers in seeking to elicit information from Mr. Mincey from time to time indicated to him that they had gotten fingerprints from the board and that sort of thing.
Now, that cannot be considered by you as being evidence that that in fact was true. It was not in fact true. You have to bear that in mind. The defendants . . . have agreed to stipulate to the playing of the tapes so that you have the privilege of hearing Mr. Mincey while he was being examined. But you must not take the statements of the policemen as statements of fact. . . . [Y]ou must always bear in mind that what the policemen tell Mr. Mincey is not to be taken by you as evidence of the truth of their assertions. You have to understand why they're saying these things and then you can evaluate Mr. Mincey's statements in an appropriate context setting.
(Id. at 3927-28; see also id. at 4019.)
3. Analysis
Petitioner's contention that there was no rational explanation for counsel's decision is not borne out by the record. Counsel's desire to " let[] the jury hear it all in this case, because . . . the intent issue is so critical" was not objectively unreasonable. (Id. at 3924.) As Respondent points out, the tapes allowed the defense to present Petitioner's version of the events without requiring him to take the stand and be subject to cross-examination. ( See Respt's Br. at 59.) Petitioner's steadfast explanation that Sandra was responsible for James's death, paired with his open admission of other highly unflattering acts upon the child, lent credibility to the defense that he did not intentionally kill James. The transcript shows that Petitioner's demeanor, like that of the defense presentation at trial, was indeed one of " telling the whole truth." (RT 3964.) Petitioner has not " overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (internal quotation omitted). Claim 16(K) is, therefore, DENIED.
F. Jury Selection
In Claim 16(M), Petitioner alleges trial counsel was deficient for failing to consult adequately with his retained jury selection expert, for exercising only two peremptory challenges, and for allowing Juror P.V. to be seated. (Pet. at 122-23; Petr's Br. at 75 (citing SHP Ex. 21 ¶ 13 (identifying Juror P.V.)).) In Claim 16(N), Petitioner specifically challenges counsel's failure to remove Jurors P.V. and D.B. after the trial court denied his challenges for cause. (Pet. at 124-26.)
To make " the required showing of prejudice under Strickland, " a petitioner must demonstrate that a " juror who harbored an actual bias was seated on the jury as a result of counsel's failure to voir dire . . . ." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011). Failing to ask certain questions or to exercise peremptory challenges, standing alone, does not show prejudice. See id.; see also Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004) (holding counsel's failure to exercise certain peremptory challenges was not prejudicial where jurors did not show bias); Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (holding counsel's failure to ask certain questions during voir dire was not prejudicial when all jurors stated that they would be fair and follow the law as instructed).
Regarding Juror D.B., Petitioner alleges only that he " demonstrated a strong pro-death penalty bias that would substantially impair his ability to properly apply the Court's instructions." (Pet. at 124.) To the extent Petitioner's claim regarding Juror D.B. pertains only to the penalty phase of his trial, it is DISMISSED AS MOOT in light of his previously granted penalty phase relief. Petitioner attempts to argue to the contrary that " a venire person's attitudes toward the death penalty relate to, inter alia, that person's capacity for empathy and his overall suitability to determine both guilt and penalty." (Petr's Reply at 28.) Even assuming, arguendo, that Petitioner's argument were persuasive, Petitioner fails to show Juror D.B. to be biased. Juror D.B. stated on voir dire that he favored the death penalty, but he was clear that whether it should be imposed would depend on the facts and circumstances of the case. (RT 754, 756, 770.) He did not believe that a person who used severe physical force resulting in the death of a child should always get the death penalty. (Id. at 758.) While he felt that if there were extreme torture the death penalty would " probably" be appropriate, he also believed that life without parole was an " alternative . . . that I think is acceptable, " he said. (Id. at 759, 766, 772-73.) D.B. said that he would consider the defendant's past life, how he was treated as a young child, his childhood development, and his use of drugs or alcohol in mitigation. (Id. at 769, 772.) D.B.'s responses regarding the death penalty do not show his views to " prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotation omitted).
Regarding Juror P.V., Petitioner alleges that she was " hostile" and was " ranked by the defense team as the 81st of 92 prospective jurors." (Pet. at 123 (emphasis omitted).) She exhibited " a pro-death penalty bias, " was not sure she would be able to consider drug or alcohol use a mitigating factor at the penalty phase of trial, and was " confused" by counsel's hypothetical questions, Petitioner states. (Id. at 124-25; see also RT 2704-11.) As for Juror D.B., even assuming Petitioner could state a claim for guilt phase relief based on a juror's penalty phase views, Juror P.V.'s responses do not show her to be substantially impaired in the performance of her duties as a juror. Her " confusion" arose as a result of reconsidering her position on the death penalty at the prompting of counsel's questions. She stated simply that she had " probably felt the same way for a long time" about the death penalty and had " always had some sort of idea how I felt about it, but when you explain all these additional facts to me it really confuses me." (Id. at 2701, 2709.) She was clear that she generally favored the death penalty but would not vote to impose it in every case. (RT 2698-99.) Whether the defendant " should have the right to continue living, " she said, " depends on why the murder was committed in the first place." (Id. at 2701.) Although she said at one point that she would invariably vote for the death penalty if it were proven that the defendant intended to kill and to torture, she immediately clarified on further questioning that she could still be persuaded to vote for a life sentence depending on the circumstances. (Id. at 2702-04.) Juror P.V.'s views do not show a bias that would prevent her from serving as a juror or substantially impair her performance.
Because Petitioner has failed to show that a juror who harbored an actual bias was seated on his jury as a result of counsel's conduct of voir dire, Claims 16(M) and (N) are DENIED.
G. Motion for Recusal
In Claim 16(O), Petitioner claims counsel was ineffective for failing to move to recuse the prosecutor's office. (Pet. at 126-27.) Petitioner alleges, without further elaboration, that the prosecutor's office held a conflict of interest because it was motivated " to protect itself from liability." (Id. at 126; Petr's Br. at 77.) Petitioner adds, also without elaboration, that the prosecutor was aware of defense counsel's cocaine use and that defense counsel " knew he was slated to move to the District Attorney's office after the completion of the Mincey trial, making his loyalties to his client's interests further suspect." (Pet. at 126; Petr's Br. at 77.)
Petitioner fails to explain or cite supporting authority to show how counsel's alleged anticipated employment with the prosecutor's office constitutes grounds for recusal of that office. Cf. Garcia v. Bunnell, 33 F.3d 1193, 1194-95, 1199 (9th Cir. 1994) (" The mere fact of [defense counsel's] future employment plans [with the District Attorney's office] did not create an actual conflict."). Petitioner has not shown that he suffered prejudice at the hands of the prosecutor or defense counsel as a result of the anticipated employment. See United States v. Kahre, 737 F.3d 554, 574 (9th Cir. 2013) (" [A]t a minimum, defendants must demonstrate prejudice from the prosecutor's potential conflict of interest . . . [and present] clear and convincing evidence of prosecutorial misconduct" to warrant disqualification); United States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993) (rejecting claim based upon prosecution's appearance of conflict for lack of prejudice). In addition, the Court held in its Order Granting in Part an Evidentiary Hearing that Petitioner failed to show (1) that the prosecution was aware of any drug use by counsel during his representation of Petitioner, creating a conflict of interest, or (2) actual prejudice from the prosecution's alleged conflict based on the State's potential civil liability. (Order at 49-50.)
Because Petitioner fails to show prejudice from counsel's failure to move to recuse the prosecutor's office, Claim 16(O) is DENIED.
H. Cumulative Ineffective Assistance of Counsel
Finally, considering the entirety of Petitioner's allegations of ineffective assistance of counsel cumulatively under Strickland, the Court finds that Petitioner was not prejudiced by any deficient performance. Any ineffective assistance regarding, for example, the presence of amphetamines in the victim's body ( see Order Granting in Part an Evidentiary Hearing at 21); the introduction or impeachment of Wendy's testimony ( see id. at 33-35); counsel's personal difficulties, drug use, or retention of Dr. Rath ( see id. at 64-66; see also supra pp. 34-36); the investigation of the case ( see supra pp. 36-37); the presentation of evidence on the Sandra Brown motion in limine ( see supra pp. 37-38); the conduct of voir dire ( see supra pp. 45-47); and the recusal of the prosecutor's office ( see supra pp. 48-49), does not show a reasonable probability of a different outcome at trial considered cumulatively. Petitioner's claim of ineffective assistance of counsel is DENIED.
XII. Psychological Expert's Conflicts of Interest
A. Treatment of Defense Counsel
In Claim 18, Petitioner contends that his constitutional rights were violated by conflicts of interest held by Dr. Rath. Petitioner alleges that Dr. Rath served as defense counsel's personal therapist and had also interviewed Sandra Brown before evaluating Petitioner. (Pet. at 129-33.)
Regarding his claim that Dr. Rath held a conflict as a result of treating defense counsel, Petitioner alleges that when Dr. Rath prepared his written evaluation of Petitioner on June 11, 1984, he was " also treating defense counsel Mr. Whitney for his drug problems." (Id. at 130.) Petitioner adds that " Dr. Rath would have recognized that Whitney's unwillingness to explore petitioners [sic] drug use [in Petitioner's defense] was a manifestation of Whitney's own denial concerning his drug addiction. Dr. Rath should have recognized this conflict and either refused to treat Mr. Whitney or refused to evaluate and testify on behalf of Petitioner." (Id. at 131.)
In its Order Granting in Part an Evidentiary Hearing, regarding Claim 16(J), the Court held:
First, Petitioner's allegation that counsel's personal difficulties resulted in his muddled decision about whether to pursue Petitioner's drug use is refuted by the evidence. In his declaration, counsel, who acknowledged his drug and alcohol use and its effects on his performance generally (SHP Ex. 50 ¶ ¶ 31-32), stated unequivocally:
Through discovery, including the report pertaining to my client's amphetamine blood level shortly after his arrest, I was aware of some information about my client's drug use at the time of the incident. I would not have attempted to elicit this information from my client myself. Instead, I relied on [investigator] Mark Hall and our penalty phase coordinator to take an accurate social history.Id.
Moreover, as discussed in part above, counsel's admitted substance abuse and therapy with Dr. Rath concluded before he was substituted in as counsel for Petitioner. ( See SHP Ex. 50 ¶ ¶ 31-32 (explaining that counsel joined Alcoholics Anonymous and concluded substance abuse counseling with Dr. Rath in July 1984, and substituted in as counsel in November 1984).) While counsel notes that he " had done some work on the case in anticipation of [his] substitution, " (SHP Ex. 50 ¶ 32), Petitioner presents no evidence of the nature or extent of that work, [or] the time when it was performed (which still may have been after his substance abuse and therapy concluded) . . . .
(Order Granting in Part an Evidentiary Hearing at 64-65.) While Dr. Rath was treating Mr. Whitney in June 1984, Mr. Whitney was not yet Petitioner's counsel at that time. Mr. Whitney's personal treatment had concluded by the time he substituted in as counsel for Petitioner. Petitioner presents no authority to show that Dr. Rath's relationship with Mr. Whitney constitutes a conflict of interest sufficient to violate Petitioner's constitutional rights.
B. Interview of Sandra Brown
Next, Petitioner alleges a constitutional violation as a result of Dr. Rath's " evaluat[ion of] Petitioner after already having interviewed co-defendant Brown at the request of her defense team when an actual conflict of interest existed between the co-defendants." (Pet. at 129.) While Petitioner asserts that prejudice must be presumed in such a situation ( id. at 132), he presents no authority in support of his argument, and this Court has found none. Petitioner also maintains that he suffered actual prejudice as a result of Dr. Rath's alleged conflict of interest, stating:
Due to the . . . conflict of interest resulting from Dr. Rath having evaluated both co-defendant Brown and Petitioner, Dr. Rath was prevented from making an unbiased evaluation of Petitioner which then would have been available for presentation at the penalty phase of trial. These conflicts prejudiced Petitioner's penalty phase because, as a result, no experts were presented at the penalty phase, and the experts who testified during the guilt phase were not credible in the eyes of the jury.
(Id. ) Petitioner's allegations as to the penalty phase of trial are moot. While Petitioner makes the conclusory allegation that he was prejudiced at both phases of trial, he fails to explain how Dr. Rath's testimony prejudiced him at the guilt phase. Petitioner does not contend that the alleged shortcomings in Dr. Rath's evaluation set forth in Claim 10 ( see Pet. at 48-49; supra pp. 10-13) were the product of a conflict of interest rather than incompetence.
Most importantly, Petitioner fails to show authority that he was entitled to more than simply " access" to mental health expert assistance. ( See supra pp. 10-12 (discussing Ake, 470 U.S. at 74; Harris, 949 F.2d at 1516).) As discussed above, Petitioner received funding for five mental health experts in support of his defense, three of whom examined him. ( See supra p. 12, p. 12 n.1.) Petitioner has failed to show a constitutional violation from Dr. Rath's participation at trial.
Claim 18 regarding the penalty phase of trial is DISMISSED AS MOOT. Claim 18 as to the guilt phase of trial is DENIED.
XIII. Denials of Continuances
In Claim 19, Petitioner alleges that the trial court violated his constitutional rights by conditioning the substitution of counsel on an agreement that there would be no continuances of the trial date. (Pet. at 133-34.)
" [B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (internal quotation omitted); Houston v. Schomig, 533 F.3d 1076, 1079 (9th Cir. 2008) (finding no violation where defendant sought to substitute retained counsel for appointed counsel four days before trial because he was dissatisfied with appointed counsel's preparation). The Supreme Court in Slappy found no violation where a replacement deputy public defender was appointed six days before the scheduled trial date and reported that he was prepared for trial, over the defendant's objections.
Here, Petitioner challenges the denial of two formal motions for continuance. Petitioner states that his first denied motion for continuance was a " mere formality, " referencing a prior conversation between Petitioner's new counsel and the trial judge that allegedly took place in the hallway outside the judge's chambers. (Pet. at 133.) The trial judge allegedly told counsel that he would deny the substitution of counsel if counsel needed a continuance. (Id. ) The record, in its entirety, states:
Mr. Whitney [defense counsel]: We also perhaps should let the record reflect that on the same day we had our pretrial conference -- I'm sorry I've forgotten what date that was.
The Clerk: That was the 8th.
Mr. Whitney: Was it the 8th? Thank you. I had requested the court for some guidance about some further trial preparation because of some unusual events that happened, had asked you if you would grant a continuance, and you said that you would not.
The Court: That is true.
Mr. Whitney: I think that's the only --
The Court: I said that with some firmness.
(RT 346.) Defense counsel declares only that he " discussed with Judge Campbell the possibility of getting a continuance of the trial" in a " conversation" in the hallway of his chambers and that the judge " told me that he would not allow me to substitute into the case if I needed a continuance." (SHP Ex. 50 ¶ 4.) He declares that there was " a great deal of investigation and trial preparation that had not been completed; some of it had not even been begun." (Id. ¶ 3.)
As Respondent argues, Petitioner has failed to provide any detail regarding the investigation counsel sought to complete and the contents of his conversation with the trial judge. ( See Respt's Br. at 70.) Petitioner does not specifically allege facts or provide evidence to show that defense counsel presented a " justifiable request" that the trial judge refused " unreasoning[ly] and arbitrar[ily]." Slappy, 461 U.S. at 11.
Petitioner made his second denied request for continuance during trial. (RT 3411-21.) He sought a continuance to litigate a motion before the judge presiding over funding decisions to obtain funds for (a) defense investigators to pursue " new investigative directives" from new counsel, in addition to the hours already authorized ( id. at 3413); and (b) a psychopharmacologist, Ronald Siegel, to evaluate whether Petitioner was under the influence of drugs and to examine Petitioner's blood amphetamine laboratory results, which the prosecution had only recently provided to the defense. (Id. at 3412-15.) The trial judge denied the continuance because he " d[id] not perceive that this motion before Judge Kayashima will be a time consuming motion. A matter of I'm sure less than an hour." (Id. at 3418.) The judge assured counsel that once the funding motion was on calendar, the judge would allow time in the trial schedule for it to be argued. (Id. ) Counsel responded that because of the " many steps in the bureaucratic procedure, . . . [i]t's very difficult for us to follow the continuity and file for additional funds and litigating in camera during the course of these trials." (Id. at 3418-19.) The judge acknowledged that " that may be true" and he explained why the funding process was necessary. (Id. at 3419.) Counsel in return asked the judge for his " help in moving forward with Judge Kayashima. If you could perhaps explain to him your perceptions of the nature of the case and how you see this as an important issue, it may be more persuasive to him than what we are able to do so far." (Id. ) The court responded that he " understood all of that when [counsel] stood up in the first instance. I am aware of the magnitude and the immediacy of the problem. You will just have to accept my statement that I am not permitted to interfere with Judge Kayashima's decisions in these regards." (Id. at 3420.)
The record reflects the trial court's reasoned consideration of counsel's request for a continuance to litigate his funding motion. Petitioner has not shown that the court unreasoningly and arbitrarily insisted upon expeditiousness in the face of a justifiable request. See Slappy, 461 U.S. at 11. Claim 19 is, therefore, DENIED.
XIV. Insufficiency of the Evidence
In Claim 23, Petitioner alleges that his conviction for first degree murder " rested on an alleged murder-by-torture theory" and that " there was insufficient evidence against [him] to establish murder by torture." (Pet. at 143.) Specifically, Petitioner argues that the evidence was insufficient to establish intent to torture. ( See id. at 144; Petr's Reply at 33.)
As the Court has held in these proceedings, however, " Petitioner's conviction for first degree murder did not necessarily include a finding of intent to torture." (Order Granting Petitioner's Motion for Order that There Is No Substantial Controversy that Petitioner Is Entitled to Relief on Claim XLV at 2.) The Court explained that the jury was instructed on two theories of first degree murder: (1) premeditated murder under California Penal Code § 187, and (2) murder by torture under California Penal Code § 189. (Id. ) The jury convicted Petitioner of first degree murder and found true the special circumstance allegation of infliction of torture, which " at the time of Petitioner's trial . . . did not require that the defendant intended to torture the victim." (Id. at 2-3.) The special circumstance allegation required a finding that Petitioner intended to kill. ( See id. at 3; CT 3 (Amended Complaint); CT 1594 (Verdict Form).)
Thus, Petitioner's conviction of first degree murder may have been based upon the ground of premeditated murder under California Penal Code § 187. As the United States Supreme Court held in Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), a general verdict of guilt need not be set aside because one of the possible bases of conviction was unsupported by sufficient evidence. So long as an alternative basis for conviction is supported by adequate evidence, the conviction stands. Petitioner's conviction of premeditated murder under § 187 is supported by adequate evidence. His claim may be denied on this basis alone.
Even examining the sufficiency of the evidence of first degree murder by torture, however, the evidence is sufficient to establish Petitioner's intent to torture. " Insufficient evidence claims are reviewed by looking at the elements of the offense under state law." Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 324 n.16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). " In reviewing the sufficiency of evidence, [a court] may grant habeas relief only if 'no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011) (quoting Jackson, 443 U.S. at 324). On habeas review, the Court must:
review the evidence in the light most favorable to the prosecution. Expressed more fully, this means a reviewing court faced with a record of historical facts that supports conflicting inferences must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.
McDaniel v. Brown, 558 U.S. 120, 133, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) (internal quotation omitted).
Here, the California Supreme Court rejected Petitioner's argument, as a matter of state law, that " intent to torture cannot be inferred solely from the condition of the victim's body" and that " an intent to torture may not be legally found if a 'misguided attempt to discipline' played any part in the process that ultimately led to the victim's death." Mincey, 2 Cal.4th at 432, 434 (quoting People v. Steger, 16 Cal.3d 539, 548, 128 Cal.Rptr. 161, 546 P.2d 665 (1976)). The state court concluded:
The evidence presented by the prosecution was sufficient to establish every element of the offense of murder by torture. The length of time over which the beatings occurred, the number of injuries inflicted, the variety of objects with which the injuries were inflicted, and the fact that the victim was made to eat his own feces established planning and a preconceived design to inflict cruel pain and suffering.
Id. at 435.
This Court does not revisit the state court's rulings on matters of state law. See McGuire, 502 U.S. at 67-68. The facts cited by the state court, which are grounded in the record, support a finding of proof beyond a reasonable doubt by a rational trier of fact that Petitioner intended to torture the victim. Accordingly, Claim 23 is DENIED.
XV. Jury Instructions on People v. Steger
A. Allegations and Decision on Direct Appeal
In Claims 24 and 25, Petitioner challenges the trial court's denial of the defense's request for jury instructions based upon passages from People v. Steger, 16 Cal.3d at 546, discussed below. Petitioner also takes issue with the instructions the trial court delivered in place of his requested instructions.
Claim 24 alleges that the jury should have been instructed that as a matter of law, irrational attempts to discipline a child do not constitute torture murder. (Pet. at 147.) Defense counsel requested an instruction that " [i]f you find that the beatings were a misguided, irrational and totally unjustifiable attempt at discipline rather than torture as defined above, you may conclude that they were not in the criminal sense wilful, deliberate, or premeditated." (RT 4967; CT 1701.) Counsel based his request upon language in Steger that " the beatings [of the child victim] were a misguided, irrational and totally unjustified attempt at discipline; but they were not in a criminal sense wilful, deliberate, or premeditated." 16 Cal.3d at 548. The trial court denied the request. ( See RT 4968.) Petitioner argues that the court's ruling was based upon the trial judge's erroneous reading of the Steger decision and his stated agreement with the dissent. ( See Pet. at 147; RT 4963.) Petitioner contends that the trial court's ruling reduced the prosecutor's burden of proof on first degree murder by torture, " remov[ed] the legal import of the defense evidence" on Petitioner's intent, and violated Petitioner's right to have the jury instructed on the legal principles supporting his defense. (Pet. at 148.)
Claim 25 alleges that a second instruction from the trial court " misled the jury into finding an intent to torture based solely upon the evidence of [the victim's] injuries, in conflict with established law." (Id. at 151.) Petitioner relies upon a second passage in Steger:
[M]urder by means of torture under section 189 is murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain. In determining whether a murder was committed with that intent, the jury may of course consider all the circumstances surrounding the killing. Among those circumstances, in many cases, is the severity of the victim's wounds. We admonish against giving undue weight to such evidence, however, as the wounds could in fact have been inflicted in the course of a killing in the heat of passion rather than a calculated torture murder.
Steger, 16 Cal.3d at 546. Petitioner requested an instruction quoting this language, and adding as an alternative to " the heat of passion" a " misguided, irrational and totally unjustifiable attempt at discipline." (RT 4965; CT 1700.) The trial court instead instructed the jury:
First-degree murder by means of torture under section 189 is murder committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain. In determining whether a murder was committed with that intent, the jury may consider all the circumstances surrounding the killing. Among those circumstances is the severity of the victim's wounds, but such evidence must not be considered to the exclusion of other evidence bearing on intent.
(RT 5008.)
On direct appeal, the California Supreme Court held that the requested instructions were argumentative and therefore inappropriate. Mincey, 2 Cal.4th at 437. The court specified that Petitioner's first proposed instruction regarding a " 'misguided attempt at discipline' is a factually based argument directed at an attempt to negate the element of intent. It is not a legal defense." Id. at 438. The court was clear that as a matter of state law, a " 'misguided attempt at discipline'" can include a willful, deliberate, and premeditated intent to torture. The court emphasized its statement in Steger that it did " 'not imply, of course, that a murder of a child can never be torture murder. In appropriate circumstances a child batterer can be found to be a torturer.'" Id. at 434 (quoting Steger, 16 Cal.3d at 549). The court explained that " [j]ust as child abuse can involve torture, a misguided attempt at discipline can involve an intent to cause cruel pain and suffering" and constitute torture murder. Id. (internal citation omitted). Regarding Petitioner's second proposed instruction, the court held that state law provided that " an inference of intent to torture . . . may be based on the condition of [the victim's] body" alone, contrary to Petitioner's argument. Id. at 433.
B. Analysis
" A criminal defendant has a constitutional right to have the jury instructed according to his theory of the case, provided that the requested instruction is supported by law and has some foundation in the evidence." United States v. Anguiano-Morfin, 713 F.3d 1208, 1209 (9th Cir. 2013) (internal quotation omitted). There is no constitutional violation, however, where " other instructions, in their entirety, adequately cover that defense theory." Id. (internal quotation omitted). The court " need not give an instruction in the precise language proposed by the defendant." Id. at 1209-10 (internal quotation omitted).
Petitioner's first proposed instruction regarding a misguided attempt at discipline lacks support in state law. The California Supreme Court determined that acting in an attempt to discipline and acting with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain are not mutually exclusive as a matter of state law. Here again, " it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." McGuire, 502 U.S. at 67-68.
Petitioner's second proposed instruction suffers the same problem, to the extent that it incorporated the " misguided . . . attempt at discipline" language. Regarding the " heat of passion" alternative, the requested instruction lacked foundation in the evidence. Under California law:
The jury was, in fact, instructed that to support a finding of first degree murder, the intent to kill must not have been formed under a sudden heat of passion. (RT 5007 (" If you find the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree").)
[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must, subjectively and actually, kill under the heat of passion. But the circumstances giving rise to the heat of passion are viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.
People v. Cole, 33 Cal.4th 1158, 1215-16, 17 Cal.Rptr.3d 532, 95 P.3d 811 (2004) (internal quotations omitted). Petitioner alleges (in support of Claim 27) that:
[i]f the jury evaluated the combined effect on Petitioner of a history of severe child abuse and Petitioner's extreme frustration over inability to discipline James, to toilet-train him or prevent James's sexual experimentation, the jury could also reasonably have found that Petitioner participated in the beatings in a heat of passion and not malice aforethought.
(Pet. at 154-55; Petr's Br. at 100.) Viewing objectively the circumstances of the disciplinary, toilet-training, and sexual experimentation problems, however, the circumstances are not sufficient to arouse the passions of an ordinarily reasonable man to constitute a killing under the heat of passion. The trial court's refusal of that instruction did not violate Petitioner's constitutional rights.
Finally, the court's instruction that the evidence of the severity of the victim's wounds " must not be considered to the exclusion of other evidence bearing on intent" adequately covers the defense theory that Petitioner lacked the requisite intent. The instruction directed the jury to consider the evidence beyond the victim's wounds in determining whether Petitioner committed a murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain.
Claims 24 and 25 are, therefore, DENIED.
XVI. Jury Instructions on Manslaughter
In Claim 26, Petitioner challenges the trial court's denial of his request to instruct the jury on manslaughter as a lesser-included offense of murder. (Pet. at 151-55.) Petitioner alleges that the evidence supported either voluntary or involuntary manslaughter, on the theories that: Petitioner failed to stop Sandra from committing the assault that resulted in James's death; Petitioner failed to " exercis[e] due caution in disciplining James, an otherwise lawful activity; " Petitioner's participation in James's beating was " caused by a combination of drug impairment, mental disorder, and misguided attempts to discipline; " and Petitioner's participation was " in a heat of passion" as a result of his own abuse as a child and his frustration over James's discipline, toilet-training, and sexual experimentation problems. (Id. at 152-55.) Petitioner argues that without manslaughter instructions, " [i]f the jury determined that Mincey's intent did not amount to first degree murder, it was effectively given no choice but to convict or set Mincey free, " in violation of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). (Petr's Reply at 37; see also Petr's Br. at 95-96.)
As the United States Supreme Court explained in Spaziano v. Florida :
The Court in Beck recognized that the jury's role in the criminal process is . . . not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. . . . The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.
468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); see also Hopper, 456 U.S. at 609-10 (" Our opinion in Beck stressed that the jury . . . could not take a third option of finding that . . . the defendant had committed a grave crime, . . . not so grave as to warrant capital punishment. . . . In such a situation, we concluded, the jury might convict the defendant of a capital offense because it found that the defendant was guilty of a serious crime.").
Petitioner's jury had the option of convicting him of the serious crimes of second degree murder and three counts of felony child endangerment as alternatives to " setting [him] free." Spaziano, 468 U.S. at 455; see Mincey, 2 Cal.4th at 426. Because the jury was not forced into an all-or-nothing choice between a capital murder conviction and acquittal, Petitioner's rights under Beck were not violated by the absence of manslaughter instructions. " [J]ury instructions are not required as to all possible lesser-included offenses" under Beck ; rather, " the primary consideration" is " avoiding the . . . all-or-nothing situation . . . ." Beardslee v. Woodford, 358 F.3d 560, 576-77 (9th Cir. 2003); see also LaGrand v. Stewart, 133 F.3d 1253, 1262-63 (9th Cir. 1998) (" [T]he instructions in the instant case do not implicate the concerns of the Beck doctrine because the jury was given the choice of convict[ions of] . . . aggravated assault, armed robbery, robbery and kidnapping . . . [i]n the event the jury had found itself unable to agree on a conviction of first-degree murder"). Claim 26 is, therefore, DENIED.
XVII. Jury Instruction on Felony Murder
In Claim 27, Petitioner alleges that an extraneous jury instruction on felony murder, coupled with the prosecutor's reference to felony murder in his closing argument, " impermissibly created a possibility that the jury convicted Petitioner of murder on a theory of felony murder based on the underlying felony of child endangerment." (Pet. at 156.) The jury instruction at issue stated that " [t]he crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life." (RT 5005.) Petitioner argues that the instruction was " exacerbated" by the prosecutor's remark, " First degree torture murder, which is kind of a variation of a felony murder theory, the judge just read to you the definition of what's involved." (Id. at 5025.)
In context, the prosecutor's reference to felony murder, while superfluous, did not undermine the requirements necessary for the jury to find first degree torture murder. In the course of discussing Petitioner's intent in killing the victim, the prosecutor argued:
You are now aware since you heard the instructions there are two types of torture we're talking about in this case and there are differences between the two. First degree torture murder, which is kind of a variation of a felony murder theory, the judge just read to you the definition of what's involved. [¶ ] First, the act or acts which caused the death must involve a high degree of probability of death. Second, the defendant must commit such act or acts with the intent to cause cruel pain or suffering for the purpose of revenge extortion persuasion [sic] or for any sadistic purpose. . . . First degree torture murder does not necessarily require any proof the defendant intended to kill. It's different for [the special circumstance]. . . .
[As to] the special circumstance[, ] first, that the murder was intentional. That's the first requirement. The second is that the murder involved the infliction of torture.
(Id. at 5026.) Because the prosecutor accurately outlined the elements of the offenses, his brief reference to felony murder, in context, did not appreciably contribute to any " deleterious effect" of the felony murder instruction as Petitioner argues. (Pet. at 156.)
As to the instruction itself, the California Supreme Court concluded that since felony murder " was not in issue, " the trial court erred in giving the instruction. Mincey, 2 Cal.4th at 451. The court found the error harmless, however, because:
[t]he improper instruction related to the offense of murder, but not its degree. The jury found defendant guilty of first degree murder based on instructions that required it to find premeditation and deliberation or torture murder, or both. In addition, the special circumstance verdict required a jury finding of intent to kill. The jury's first degree murder verdict and its special circumstance finding establish that the jury did not base its conviction on the felony-murder theory.
Id.
The erroneous instruction warrants federal habeas relief only if it had substantial and injurious effect or influence in determining the jury's verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008). Even where " the jury was instructed on alternative theories of guilt and may have relied on an invalid one, " harmless error review still applies. Id. If the jury's findings show that the required elements were effectively found, the conviction stands. Musladin v. Lamarque, 555 F.3d 830, 844 (9th Cir. 2009) (" [E]ven if the jury believed 'implied malice' was sufficient for first degree murder, the instructions clearly required it to find deliberation and premeditation before reaching its verdict of first degree murder. In finding deliberation and premeditation, the jury effectively found express malice."); Lara v. Ryan, 455 F.3d 1080, 1086-87 (9th Cir. 2006) (holding that jury's special finding that defendant attempted to murder willfully, deliberately, and with premeditation " necessitate[d] the conclusion that it found [the defendant] guilty of attempted murder with express malice, " because " [t]he jury could not have found that [the defendant] attempted murder willfully, deliberately and with premeditation and that he attempted murder with implied malice. The two are inconsistent." (emphasis in original)), abrogated on other grounds by Pulido, 555 U.S. at 57 (abrogating standard for harmless error review).
As the California Supreme Court held, the special circumstance finding reached by the jury included a finding that Petitioner intended to kill. ( See supra p. 55.) It also included a finding that Petitioner was the actual killer. ( See, e.g., RT 5011 (" If defendant, Bryan Mincey, was an accomplice or aider and abettor but not the actual killer, you are not permitted to find the alleged special circumstance murder involving infliction of torture to be true").) The jury could not have both (a) found that Petitioner was the actual killer and intended to kill and (b) exclusively relied upon a theory of felony murder. The jury's special circumstance finding shows the erroneous felony murder instruction to have had no substantial and injurious effect or influence in determining the jury's verdicts. Claim 27 is, therefore, DENIED.
XVIII. Juror Misconduct
In Claim 32, Petitioner alleges that during their deliberations, " jurors improperly applied personal knowledge in direct conflict to evidence presented at trial." (Pet. at 168-70.)
A. Juror H.S.
First, Petitioner alleges that Juror H.S. told the other jurors that he, like Petitioner, had an I.Q. score of 78 and he did not feel disabled. (Id. at 169.) Petitioner argues that the juror's statement advised the others to disregard evidence of Petitioner's intellectual impairment based on the juror's purported personal knowledge of whether or not it was disabling. (Id. )
Petitioner cites no evidence in his Petition or his merits briefing in support of his allegation. His claim may be rejected on that basis alone. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (holding that habeas petitioner's " [c]onclusory allegations which [we]re not supported by a statement of specific facts" and were " [w]ithout reference to the record or any document" did not warrant habeas relief (internal quotations omitted)); Coleman v. McCormick, 874 F.2d 1280, 1284-85 (9th Cir. 1989) (holding that " counsel's statements, unsworn and unsupported by any proof or offer of proof, " did not provide a sufficient basis to obtain a hearing (or relief) on habeas claim (internal quotation omitted)).
Nevertheless, Respondent points the Court to Exhibit 21, the declaration of defense investigator Linda Meza. Dr. Meza declares that a juror, who spoke on the condition of anonymity, told her after the verdicts that Juror H.S. " said that's what his I.Q. was [78] and he didn't feel that he was handicapped and it doesn't hinder you from knowing right from wrong." (SHP Ex. 21 ¶ 11.) Even assuming the anonymous juror's statements show that extraneous evidence was before the jury and are therefore admissible despite Federal Rule of Evidence 606(b), see United States v. Bussell, 414 F.3d 1048, 1055 (9th Cir. 2005), the investigator's declaration remains inadmissible as hearsay under Federal Rule of Evidence 802.
Finally, even considering the contents of the statement, Petitioner fails to demonstrate that Juror H.S. made the statement during the jury's guilt phase deliberations, to entitle Petitioner to relief from his convictions as opposed to his sentence. The alleged statement by Juror H.S. does not warrant guilt phase relief.
B. Juror L.S.
Next, Petitioner alleges that Juror L.S., a former correctional officer at the California Institute for Men, stated during deliberations that " because of the charge for which Petitioner was convicted, " Petitioner would be killed in prison within a year. (Pet. at 169.) Petitioner cites no evidence in his Petition or his merits briefing in support of his allegation. The statement does not appear in the declaration of Dr. Meza. Moreover, Petitioner fails to show that the statement was made during guilt phase deliberations. Petitioner elsewhere appears to allege that the statement was " contemplated by the sentencing jury." (Id. at 216-17 (capitalization omitted).) On its face, the allegation here states that J.S. was reflecting on the consequences of the charge " for which Petitioner was convicted, " also suggesting that the statement occurred during penalty phase deliberations. (Id. at 169 (emphasis added).) The alleged statement by Juror L.S. does not entitle Petitioner to guilt phase relief.
C. Juror A.T.
Finally, Petitioner alleges, without any further explanation or context, that " [j]ury foreperson [A.T.] was reading a book which dealt directly with the veracity and the evidence being presented." (Id. ) Petitioner again cites no evidence in his Petition or his merits briefing in support of his allegation, and the statement does not appear in the declaration of Dr. Meza. Petitioner provides no details about the book or the related evidence at trial. He likewise presents no allegation or evidence that A.T. improperly considered the book during guilt phase deliberations. Petitioner has shown no misconduct by Juror A.T. to entitle him to relief.
Claim 32 is DENIED.
XIX. Child Abuse Conviction
In Claim 41, Petitioner alleges that his conviction of felony child endangerment was improper because it was a lesser offense necessarily included within the charge of torture murder. (Pet. at 200-01.) Petitioner's felony child endangerment charge alleged that he " 'did willfully and under circumstances likely to produce great bodily harm or death cause, permit, and inflict unjustifiable physical pain and mental suffering upon James William Brown.'" (Id. at 201 (quoting CT 294).) Petitioner contends that because the torture murder charge necessarily included the intent to inflict severe pain, it necessarily included the felony child endangerment charge. (Id. )
On direct appeal, the California Supreme Court held:
When, as here, the accusatory pleading describes an offense in the statutory language, an offense is a necessarily included offense when the greater offense cannot be committed without necessarily committing the lesser offense. Because the victims of torture murder can be adults, as well as children, it follows that torture murder does not necessarily include child endangerment. See In re Hess, 45 Cal.2d 171, 174, 288 P.2d 5 (1955) (forcible rape can be committed without contributing to the delinquency of a minor).
Mincey, 2 Cal.4th at 452 (internal citations edited and omitted).
Petitioner does not address Claim 41 in his merits briefing. ( Compare Respt's Opp. at 95-96 (briefing Claim 41).) He has not presented any authority to support his claim that his conviction of felony child endangerment violated his federal constitutional rights as he argues, and this Court is aware of none. Accordingly, Claim 41 is DENIED.
XX. Cumulative Errors
Finally, in Claim 48, Petitioner alleges that the cumulative effect of the errors he alleges at trial rendered his conviction and death sentence unconstitutional. (Pet. at 226.)
" [P]rejudice may result from the cumulative impact of multiple deficiencies." Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995) (finding that cumulative prejudice from counsel's performance that was " deficient in eleven ways, eight of them undisputed" " obviate[d] the need to analyze the individual prejudicial effect of each deficiency, " but noting that " some of the deficiencies [may be] individually prejudicial" (internal citation and quotation omitted)). " [W]here the government's case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors. This is simply the logical corollary of the harmless error doctrine which requires us to affirm a conviction if there is overwhelming evidence of guilt." United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (internal citation and quotation omitted); United States v. Nadler, 698 F.2d 995, 1002 (9th Cir. 1983) (holding same). " [W]hile a defendant is entitled to a fair trial, he is not entitled to a perfect trial, 'for there are no perfect trials.'" United States v. Payne, 944 F.2d 1458, 1477 (9th Cir. 1991) (rejecting cumulative error claim based upon trial court errors) (quoting Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)).
The Court finds that at the guilt phase, any prosecutorial misconduct and ineffective assistance, in addition to any errors, for example, in the exclusion of evidence regarding Sandra's child abuse and drug use ( see supra pp. 5-10), the exclusion of Sandra from viewing by the jury ( see supra pp. 27-29), a conflict of interest held by Dr. Rath ( see supra pp. 49-52), and the instruction of the jury on felony murder ( see supra pp. 63-65), considered cumulatively, were harmless. Claim 48 is, therefore, DENIED as to the guilt phase of trial. Claim 48 is DISMISSED AS MOOT as to the penalty phase of trial.
XXI. Order
Claims 12(C)(7), 16(G), 16(M) (and Petitioner's corresponding claim of cumulative ineffective assistance of counsel), 18, 20, 28, 29, 32, 39, 40, 44, and 48, to the extent the claims challenge the penalty phase of Petitioner's trial, are DISMISSED AS MOOT as a result of the prior grant of relief from Petitioner's death sentence. ( See Order Granting Petitioner's Motion for Order that There Is No Substantial Controversy that Petitioner Is Entitled to Relief on Claim XLV; Denial without Prejudice of Motion for Evidentiary Hearing; Briefing Schedule for Renewed Motion.) Any remaining penalty phase claims for relief that have not been formally adjudicated are likewise DISMISSED AS MOOT. All other outstanding claims and portions of claims for relief are DENIED.
The First Amended Petition has been granted in part as to Claim 45. (Order Granting Petitioner's Motion for Order that There Is No Substantial Controversy that Petitioner Is Entitled to Relief on Claim XLV.) " [A] writ of habeas corpus must issue vacating Petitioner's death sentence, and prohibiting any new sentence of death without a new determination of special circumstances." (Id. at 10.) The judgment of conviction on the special circumstance and the sentence of death in the matter of People v. Bryan Joseph Mincey, Case No. SCR 41466 of the California Superior Court of San Bernardino County, shall be VACATED.
IT IS SO ORDERED.
JUDGMENT
IT IS HEREBY ORDERED that Petitioner Bryan Joseph Mincey's petition for writ of habeas corpus be CONDITIONALLY GRANTED and that the judgment of conviction on the special circumstance and the sentence of death in the matter of People v. Bryan Joseph Mincey, Case No. SCR 41466 of the California Superior Court of San Bernardino County, shall be VACATED.
IT IS FURTHER ORDERED that the State of California shall, within 120 days from the entry of this Judgment, either grant Petitioner a new trial on the special circumstance allegation, or vacate the special circumstance finding and death sentence and resentence Petitioner in accordance with California law and the United States Constitution.
IT IS FURTHER ORDERED that the Clerk of this Court shall immediately notify the Warden of San Quentin Prison of this Court's judgment.
IT IS SO ORDERED.