Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-04009-MRP. Mariana R. Pfaelzer, District Judge, Presiding.
Before: Charles Wiggins, David R. Thompson and Stephen S. Trott, Circuit Judges. Opinion by Judge Thompson.
In 1984, a jury in California found Charles E. McDowell, Jr., guilty of murder, attempted murder, attempted rape, and burglary. The jury found true the special circumstances of felony murder/burglary and felony murder/rape. McDowell was sentenced to death.
After exhausting his claims for relief in state court, McDowell filed his first amended petition for federal habeas relief in the district court. This is an appeal from the denial of that petition. In the petition, McDowell argues he received ineffective assistance of counsel during the guilt phase of his trial and asserts several errors occurred during the penalty phase. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
On May 20, 1982, Paula Rodriguez was working as a house cleaner at the Bardsley residence. At that time, McDowell was living with his companion, Lea D'Crenza, in the same neighborhood. At approximately 1:00 p.m., neighbors heard screams coming from the Bardsley residence. Theodore and Dolores Sum telephoned the Bardsleys. They heard more screams through the telephone and then it was disconnected.
The Sums went to the Bardsley home to investigate. Theodore Sum opened the front door and saw a nude man whom he identified at trial as McDowell. McDowell rushed at Theodore Sum and slashed his neck with a knife. The Sums returned to their home and telephoned the police. McDowell was later seen running from the Bardsley home, into the D'Crenza home, and then, later, walking away from the D'Crenza home.
Police officers immediately arrived at the Bardsley home and found Rodriguez stabbed to death in the den. She had been cut twice on the neck; stabbed twice in the chest, once in the abdomen, and once in the left arm; and had deep knife wounds on her hands. She was lying in a supine position with her skirt pulled up, her legs apart, her underwear cut, her blouse slashed, and her body covered with blood. Seminal fluid was found on her underwear. Police officers found her two-year old daughter unharmed upstairs.
Police Officer Henry Petroski followed a trail of blood from the front door of the Bardsley home onto the sidewalk. The trail of blood led to the D'Crenza home. Officer Petroski entered the D'Crenza home and followed the trail of blood through the home. A bloodstained knife was lying on the floor in the kitchen. Officer Petroski followed the trail outside the home to a house approximately 850 feet away from the D'Crenza home.
From the bushes, Officer Petroski heard a male voice say, "Don't shoot me. Don't shoot me. I give up." Officers pulled McDowell from the bushes and arrested him. McDowell's wrist and a finger were cut. He was transported to a hospital for medical treatment.
En route to the hospital and during his stay at the hospital, McDowell made several damaging statements. For example, McDowell stated that he had watched a movie the night before which involved the rape, strangulation, and stabbing of a woman. He stated that he "felt a force" come over him and the movie made him decide to go to the Bardsley home and "hurt" Rodriguez. He further stated that the blood on his clothing belonged to Rodriguez.
McDowell was charged with murder, attempted murder, attempted rape, and burglary, in violation of California Penal Code Sections 187, 261, 459, and 664. Two special circumstances were alleged: felony murder/burglary, under California Penal Code Section 190.2(a)(17)(vii), and felony murder/rape, under California Penal Code Section 190.2(a)(17)(iii).
During the guilt phase of his trial, McDowell conceded guilt to the murder, rape, and burglary. He argued, however, that he did not have the intent to kill Rodriguez and, therefore, was not guilty of the special circumstances. After two days of deliberation, the jury found McDowell guilty on all counts and found true the special circumstances.
During the penalty phase, the prosecution presented evidence of two prior crimes committed by McDowell: a conviction for lewd and lascivious conduct, involving Curtis M.; and an uncharged rape, involving Patricia H.
In mitigation, McDowell's counsel presented family members and a former neighbor who testified about McDowell's tragic childhood, a nurse who was his primary therapist when he was incarcerated in a Mentally Disordered Sex Offender program, and a probation officer who supervised McDowell after the Curtis M. offense. After two-and-one-half days of deliberation, the jury returned a verdict of death. The state trial court imposed the death sentence.
The California Supreme Court affirmed the conviction and sentence. People v. McDowell, 763 P.2d 1269 (Cal. 1988). The United States Supreme Court denied McDowell's petition for certiorari. McDowell v. California, 490 U.S. 1059, 104 L. Ed. 2d 441, 109 S. Ct. 1972 (1989). In September 1989, the California Supreme Court denied McDowell's first state habeas corpus petition by a postcard denial. In March 1990, the United States Supreme Court denied McDowell's second petition for certiorari. McDowell v. California, 494 U.S. 1039, 108 L. Ed. 2d 637, 110 S. Ct. 1503 (1990).
In December 1990, McDowell filed his first federal habeas corpus petition with the district court. In October 1991, the district court granted McDowell leave to file a second state petition to exhaust his ineffective assistance of counsel claims. By a postcard denial, the California Supreme Court denied the petition in July 1992. McDowell filed his amended petition in the district court in May 1993.
The district court denied McDowell's petition in November 1995, but granted McDowell a certificate of probable cause. This appeal followed.*fn1
A. General Standards of Review
To warrant federal habeas corpus relief, McDowell, a state prisoner, must establish that his conviction or sentence violates the federal Constitution, a federal statute, or treaty. Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir. 1995), cert. denied, 133 L. Ed. 2d 671, 116 S. Ct. 718 (1996). We review de novo the district court's denial of his habeas corpus petition. Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985). We review for clear error any factual findings made by the district court; the state court's factual findings are entitled to a presumption of correctness. Bonin, 59 F.3d at 823; 28 U.S.C. § 2254(d); Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994).
B. Ineffective Assistance of Counsel - Guilt Phase
McDowell argues his counsel, Howard Gillingham, rendered ineffective assistance during the guilt phase of his trial because (1) Gillingham failed to adequately investigate and to present a defense based on McDowell's alleged intoxication at the time of the murder; and (2) during closing argument, Gillingham conceded McDowell's guilt of felony murder, and then did not effectively argue why McDowell lacked the intent to kill, which lack of intent would have rendered him not guilty of the special circumstance required for a sentence of death in a felony murder conviction.
Because a claim of ineffective assistance of counsel raises a mixed question of law and fact, we review the claim de novo. Harris v. Wood, 64 F.3d 1432, 1435 (9th Cir. 1995). We review de novo whether counsel's performance was deficient and whether prejudice resulted from any deficient performance. Thompson v. Calderon, 86 F.3d 1509, 1515 (9th Cir. 1996); see also Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (concluding state court's determination that counsel's performance was not deficient is not a finding of fact entitled to a presumption of correctness).
McDowell first must establish that his "'counsel's representation fell below an objective standard of reasonableness . . . considering all the circumstances . . . under prevailing professional norms.'" Harris, 64 F.3d at 1435 (quoting Strickland, 466 U.S. at 688). McDowell must overcome a "strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making decisions." Thompson, 86 F.3d at 1515 (internal quotations and citation omitted).
McDowell also must establish prejudice resulted from any deficient performance. Id. He must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Clabourne v. Lewis, 64 F.3d 1373, 1378 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 694).
McDowell asserts Gillingham's performance was deficient because he failed to timely investigate whether McDowell was under the influence of alcohol or various controlled substances at the time of the murder. McDowell complains that Gillingham did not obtain timely testing of his blood and urine samples, taken on the day of his arrest. He argues that, had Gillingham presented evidence of his alleged intoxication*fn2 at the time of the murder, the jury would have found he did not have the intent to kill which, at that time, was an element of the felony murder special circumstances. See Carlos v. Superior Court, 35 Cal. 3d 131, 672 P.2d 862, 865, 197 Cal. Rptr. 79 (Cal. 1983), overruled by People v. Anderson, 43 Cal. 3d 1104, 742 P.2d 1306, 240 Cal. Rptr. 585 (Cal. 1987).
McDowell contends Gillingham had the following information which should have prompted a thorough and timely investigation into McDowell's alleged intoxicated state at the time of the murder: Approximately a year after his arrest, in March 1983, McDowell told Marilyn Butler, a law clerk helping Gillingham, that, on the morning of the murder, he had consumed alcohol and various controlled substances. McDowell also told experts retained by Gillingham that he had consumed excessive alcohol and controlled substances on the morning of the murder. In addition, Speare Primpas, a friend of McDowell, and D'Crenza both told Gillingham that McDowell used drugs extensively.
Gillingham's investigation into McDowell's alleged intoxication was not constitutionally deficient. Gillingham requested the testing of the samples a month after McDowell told Butler he had consumed alcohol and controlled substances on the morning of the murder. The police department's report, dated May 20, 1983, stated controlled substances were not detected and McDowell's blood alcohol level was .011 at the time his blood sample was taken.*fn3
Gillingham then independently had the samples tested. A report from the Institute of Forensic Sciences, dated July 5, 1983, reported no cannabinoids, ethanol, narcotics, or stimulants were detected. A report from the Center for Human Toxicology, dated October 5, 1983, reported that no LSD was detected and only a trace of THC. A note from Gillingham indicates that the THC testing indicated the marijuana was ingested days rather than hours before the samples were taken. In these circumstances, Gillingham's failure to pursue further testing of the samples was not constitutionally deficient.
McDowell also has not demonstrated that Gillingham rendered ineffective assistance by failing to have the samples tested earlier. McDowell has not shown that any delay in testing the samples affected the validity of the tests. The facilities that actually did the independent testing for Gillingham did not indicate that the results might be inaccurate due to a delay in testing. The State contradicted McDowell's expert testimony, presented during the evidentiary hearing before the district court, that the alcohol in the blood sample could have dissipated over time. The State's expert testified that the test samples would have remained stable while in storage at the police department.
Even if we were to assume Gillingham's performance was deficient, McDowell has not established that prejudice resulted from Gillingham's alleged failure to adequately investigate or to present an intoxication defense. Even if test results were obtained that indicated McDowell was under the influence of alcohol and controlled substances at the time of the murder, there was ample credible evidence which would have contradicted such tests and established that McDowell was not so intoxicated that he could not have formed the intent to kill.
A news crew videotaped McDowell's arrest. On the videotape, McDowell yells, "I'm wanted for rape in Florida. You can have all you want." After viewing the videotape, the district court found that McDowell was portrayed "in a state not resembling intoxication." This finding is not clearly erroneous. On the videotape, McDowell does not appear intoxicated. Further, after Gillingham and his experts viewed the videotape, they also came to the Conclusion that McDowell did not appear intoxicated. Had an intoxication defense been presented, the jury would have viewed the videotape and likely would have reached the same Conclusion.
In addition, Officer Petroski, an arresting officer, stated McDowell was not "under the influence of anything" at the time of his arrest. In his report, Officer Michel, an officer who transported McDowell to the hospital after his arrest, described McDowell's behavior in detail but did not suggest or mention that McDowell was intoxicated. Glenn Smith, a paramedic who treated and transported McDowell after his arrest, testified that he was trained to recognize when people are under the influence of intoxicants, but he did not notice any symptoms that McDowell was under the influence of alcohol or controlled substances. Also, the hospital records indicate McDowell was conscious, alert, and coherent and do not indicate that McDowell was intoxicated at the time of his arrest.
In sum, Gillingham did not render ineffective assistance by failing to earlier test the samples or to further pursue an intoxication defense. Even if the samples might have indicated some degree of intoxication, there was substantial credible evidence that McDowell's behavior was not affected. McDowell suffered no prejudice.
McDowell argues Gillingham rendered ineffective assistance during closing argument by conceding his guilt of felony murder. McDowell also contends he received ineffective assistance because, during closing argument, Gillingham argued that McDowell lacked the intent to kill which was an element of the special circumstances, but did not explain how the evidence related to this lack of intent. Gillingham's performance in this regard was not constitutionally deficient.
The evidence of McDowell's guilt of felony murder was overwhelming. Gillingham chose to concede McDowell's guilt of felony murder but to contest whether McDowell had the intent to kill. If McDowell did not have the intent to kill, he would not have been eligible for the death sentence. The choice of this line of defense appears to have been the best choice from a poor lot. See Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) ("The choice to pursue a bad strategy makes no comment on an attorney's judgment where no better choice exists."), cert. denied, 134 L. Ed. 2d 485, 116 S. Ct. 1335 (1996).
We also reject McDowell's argument that Gillingham failed to present a viable argument for the jury to find McDowell did not possess the intent to kill. Gillingham argued that McDowell went to the residence with only the intent to rape Rodriguez rather than to kill her and he brought the knife with him only to threaten her. He argued that McDowell's conduct was inconsistent with a plan to kill.*fn4 Gillingham's performance was not deficient.
C. Supplemental Instructions
McDowell next argues the state trial court erred by failing to give supplemental instructions, in response to a question from the jury during deliberations in the penalty phase. He asserts this error prohibited the jury from considering the mitigating evidence he presented. We conclude that, by referring the jury to the original jury instructions and by rereading an instruction, the state trial court accurately informed the jury of the applicable law and adequately responded to the jury's question.
During the third day of deliberations in the penalty phase, the jury sent the court a note which stated:
We, the jury in the above entitled action, request the following:
Direction. We have an 11 to 1 vote for death. The one juror empathically [sic] feels her mitigating circumstances are equal to the aggravating circumstances. The other 11 jurors do not all agree with the one juror[']s mitigating circumstances as all being either testimony or evidence that should be considered. Please advise which following circumstances can be considered mitigating circumstances.
1. Inadequate or insufficient psychiatric help.
2. Love/hate relationship with father/mother.
3. Daily extreme mental and physical abuse by father, also witness to daily physical abuse ...