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Clark v. Chappell

United States Court of Appeals, Ninth Circuit

September 5, 2019

Richard Dean Clark, Petitioner-Appellant,
Kevin Chappell, Warden, Respondent-Appellee.

          Argued and Submitted April 16, 2019 Pasadena, California

          Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:97-cv-20618-WHA

          John R. Grele (argued), San Francisco, California, for Petitioner-Appellant.

          Alice B. Lustre (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

          Before: Consuelo M. Callahan, Sandra S. Ikuta, and John B. Owens, Circuit Judges.


         Habeas Corpus/Death Penalty

         The panel affirmed in part and vacated in part the district court's denial of Richard Dean Clark's habeas corpus petition challenging his California conviction and capital sentence for the first-degree murder and rape of a 15-year-old, and remanded to the district court for reconsideration of one issue in light of Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

         Because the habeas petition was filed before April 24, 1996, the panel applied the standards in effect prior to the implementation of the Antiterrorism and Effective Death Penalty Act of 1996.

         The panel held that Clark's five certified ineffective-assistance-of-counsel claims are unavailing because (1) Clark did not show that trial counsel's performance fell below an objective reasonableness standard at the time of trial or (2) in the few instances in which counsel's conduct was deficient, Clark has not shown that there is a reasonable probability that the outcome would have been different. In light of Godoy, the panel remanded for further proceedings on Clark's certified claim that his rights to due process and an impartial jury were violated when a juror communicated with his minister.

         The panel rejected the state's argument that three of Clark's ten uncertified claims are procedurally barred from federal review, and granted a certificate of appealability on six of the uncertified claims. Affirming the district court's denial of habeas relief on two claims, the panel concluded that Clark did not establish any actual conflict of interest that adversely affected his representation. Affirming the district court's denial of Clark's claim that trial counsel was ineffective for failing to present life history evidence at the penalty phase, the panel concluded that trial counsel's presentation of life history evidence was not deficient. Affirming the district court's denial of Clark's claim that trial counsel was ineffective for failing to rebut a jailhouse report, the panel concluded that counsel's performance was not deficient. Affirming the district court's denial of Clark's claim that he was denied his Sixth Amendment right to be present for critical stages of the proceedings, the panel concluded that Clark did not explain how his presence at two meetings regarding possible conflicts of interest with counsel had a reasonably "substantial relationship" to his ability to defend himself. Affirming the district court's denial of Clark's claim that habeas relief is warranted under Brady v. Maryland, 373 U.S. 83 (1963), because the prosecution failed to disclose two pieces of exculpatory evidence, the panel concluded that there is not a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. The panel affirmed the district court's denial of relief on Clark's claim that cumulative errors denied him a fair trial. The panel denied a COA on the remaining uncertified claims.

         The panel affirmed the district court's denial of evidentiary hearings for all claims except the juror misconduct claim as to which the district court will determine on remand whether an evidentiary hearing is warranted.


          PER CURIAM.

         California state prisoner Richard Dean Clark appeals from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and capital sentence for the first-degree murder and rape of fifteen-year-old Rosie Grover in 1985.

         On appeal, Clark raises sixteen claims, of which six were certified: (1) ineffective assistance of counsel for failing to advise Clark to accept a plea offer; (2) violation of Clark's rights to due process and an impartial jury by juror misconduct; (3) ineffective assistance of counsel for calling Dr. Mayland to testify at the pre-trial suppression hearing; (4) ineffective assistance of counsel in preparing and presenting expert testimony; (5) ineffective assistance of counsel for failing to investigate and present evidence of Clark's fetal alcohol exposure, traumatic birth, and the ensuing effects from both; and (6) ineffective assistance of counsel for failure to argue that Dean "Dino" Stevens was an alternative suspect or co-participant and prosecutorial misconduct in failing to disclose information about Dino. Clark also raises ten uncertified claims, six of which we grant a certificate of appealability ("COA") and deny on the merits and three of which fail to satisfy the COA standard.

         Because Clark's federal habeas petition was filed before April 24, 1996, the habeas standards in effect prior to the implementation of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply. Under pre-AEDPA standards, both questions of law and mixed questions of law and fact are subject to de novo review, which means that a federal habeas court owes no deference to a state court's resolution of such legal questions (in contrast with post-AEDPA standards). See Williams v. Taylor, 529 U.S. 362, 400 (2000); see also Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). But the state court's factual findings are entitled to a presumption of correctness unless one of the exceptions under 28 U.S.C. § 2254(d) (1991) is met.

         Clark's numerous ineffective assistance of counsel claims, governed by Strickland v. Washington, 466 U.S. 668 (1984), are unavailing because Clark does not show that trial counsel's performance fell below an objective reasonableness standard at the time of the trial in 1987. Furthermore, for the few instances where counsel's conduct was deficient, Clark has not shown that there is a reasonable probability that the outcome would have been different. His efforts to show prejudice are undercut by the extensive evidence presented at trial, including his two detailed confessions and the physical evidence confirming his involvement in the crimes. The post-conviction mitigating evidence Clark marshals to support his argument that the penalty phase would have been different is cumulative of the mitigating evidence presented at the guilt and penalty phases of trial. We similarly find unpersuasive Clark's conflict of interest claim under Mickens v. Taylor, 535 U.S. 162, 171 (2002), based on his first attorney's election as District Attorney and his subsequent attorney's representation of witnesses.

         On one issue, juror misconduct, we remand to the district court to decide Clark's claim in light of our recent decision in Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017) (en banc).

         We otherwise deny habeas relief. We also affirm the district court's denial of evidentiary hearings for all claims (with the exception of the juror misconduct issue), concluding Clark has not shown that he would be entitled to relief on his proffered facts.


         A. The Crimes

         Around 4:00 a.m. on July 19, 1985, fifteen-year-old Rosie Grover arrived at the Greyhound bus depot in Ukiah, California. After unsuccessfully attempting to obtain a ride, she started walking to her mother's house. Several hours later, her body was found in a nearby creek-bed. Grover had been raped, stabbed with a sharpened screwdriver, and bludgeoned in the head and neck with two concrete blocks.

         At the time of the crimes, Defendant-Appellant Richard Dean Clark, then twenty-one years old, was living with and caring for his paraplegic friend, David Smith, in Ukiah. On the day before the crimes, Clark and Smith spent the afternoon drinking beer, ingesting cocaine, and smoking marijuana. Clark drank three or four beers at the local bar. Clark and Smith both ingested cocaine at the house of Smith's stepsister, Michelle Stevens. Although Smith had seen Clark use methamphetamine in the past, he did not see Clark use methamphetamine that day. Clark smoked between two and five marijuana cigarettes.

         Later that evening, a fight broke out between Clark and Michelle's boyfriend, Matt Williams. According to Williams, Clark "looked like he was on something" and "got kind of violent, shadow boxing around the house and throwing punches." Around 10:00 p.m., Clark announced that he "was going to beat somebody up and rob them" and then he left with Dino Stevens-Michelle's stepbrother.

         Clark and Dino played pool at Munchie's, a local pool hall, for approximately 30 to 40 minutes. After they left the pool hall, they went to the home of Robyn Boyd, who lived near the Ukiah bus depot. Clark and Dino left Boyd's house around 12:30 a.m. Upon leaving, the men went their separate ways.

         Little evidence, other than Clark's statements to the police, establish Clark's location and movements from the time that he left Boyd's house until he entered a restaurant later that morning.

         On July 19 at about 6:15 a.m., Clark walked into Ron-Dee-Voo Restaurant near the Greyhound bus depot with a partially empty wine cooler bottle in his hand. He told Karen Mertle, a waitress, that he found a girl's body in a nearby ditch who was hurt "real bad" and "maybe raped." He handed Mertle the wine cooler bottle, which she saved to give to the police. Mertle testified that Clark did not appear intoxicated. Several witnesses from the restaurant testified that Clark did not appear intoxicated or upset.

         Officer Wayne McBride of the Ukiah Police Department arrived at the restaurant at around 6:34 a.m. Clark told Officer McBride that he found the body when he was taking a "shortcut" to buy cigarettes at a convenience store and that he checked the body for a pulse and may have touched the suitcase found near the body. Officer McBride testified that Clark was wearing sunglasses and spoke rapidly but did not appear to be intoxicated and did not smell of alcohol.

         Detectives Fred Kelley and Edward Gall collected physical evidence at the crime scene. Grover's body was partially clothed with her jeans buttoned, a cloth belt undone, her jacket and blouse open exposing her bra, and her shoes and tank-top lying on the ground nearby. Her duffle bag and suitcase were about ten feet away from her body, and inside her duffle bag was the same brand and flavor of wine coolers as the bottle Clark had given to Mertle. Two bloody concrete blocks-the heavier of the two weighing about 18.5 pounds-were found near Grover's body with traces of human blood and hair, consistent with Grover's.

         After searching the crime scene, Detectives Kelley and Gall went to Michelle's house, where Clark and Smith were residing at the time, and received Smith's permission to search Smith's car. Detective Kelley found a pair of Levi's jeans and a vest-jacket on the rear seat with blood splattered on the jeans and smeared on the vest. Smith and Michelle identified the clothing as having been worn by Clark the previous evening. The blood was found to be consistent with both Grover's and Clark's blood.

         One week later, a hand-sharpened screwdriver with traces of human blood was found in Smith's car. On the shoes Clark wore when he was arrested, there was splattered human blood and a hair that was found to be consistent with Grover's hair and inconsistent with Clark's hair. Clark "could not be ruled out" as the source of the semen found in the victim's underwear, and the pubic hair found in the victim's underwear was consistent with Clark's.

         B. Clark's Confessions

         Clark gave three custodial statements to the police on the day of his arrest. First, at the police station and prior to his arrest, Clark waived his Miranda rights and spoke to Detectives Kelley and Gall, essentially repeating the same story he told Officer McBride earlier in the morning at the restaurant.

         Second, after Clark's arrest and booking, Detectives Kelley and Gall transported Clark to the hospital to obtain a sample of Clark's blood. During the drive, Clark confessed to killing Grover. During the drive, Clark suddenly asked, "What can someone get for something like this, thirty years?" Detective Gall testified at trial that he had responded: "Probably not unless you were a mass murderer." Fifteen to twenty-five seconds following this exchange Clark said, "I want this on the record. I'm guilty. I killed her. What do you want to know?" Clark told the officers that he was walking southbound on State Street when he met Grover. Clark told the officers that Grover "started to come on to him." The officer recalled that Clark said that Grover "flashed" her breast at him. Clark said that he and Grover had consensual sexual intercourse, but that afterward Grover threatened "that she was going to cry rape." Clark said that he thought that he would probably receive a less severe penalty for killing her than raping her and so then began to choke her. Clark said he found "what appeared to be a screwdriver, just the metal shaft part, . . . in the creekbed and he said he stabbed [Grover] several times," and "took a large piece of cement and hit [Grover] in the head with it." Clark told the officers that he then went back to Michelle's house and changed his clothing. Clark left a pair of Levi's jeans and his jacket in the back of Smith's car. Clark told the officers that he then returned to the crime scene because he thought that if he reported finding the body, no one would suspect that he killed Grover. In this confession, Clark did not mention blacking out during the crimes.

         Third, upon returning to the police station, Clark waived his constitutional rights and agreed to provide a tape-recorded statement to Detectives Kelley and Gall and Deputy District Attorney Al Kubanis. The recorded statement differed somewhat from the statement Clark gave in the patrol car. In the recorded statement, Clark explained that during the prior evening he had ingested eight or nine beers, several tablets of Valium, one-eighth gram of methamphetamine, and several marijuana cigarettes, and that he had "blacked out" during the course of the crimes. During this confession, Clark repeated that he was walking southbound on State Street when he met Grover. Clark said that "the next thing [he] kn[e]w [Grover had] her top off." Clark again admitted to having sexual intercourse with Grover and claimed it was consensual. Clark said that, following the encounter, Grover "said she was going to cry rape" and "to put [him] in jail for 20, 30 years." Clark stated that then he "grabbed her by the neck" and "started choking her." In the recorded statement, unlike in the patrol car confession, Clark claimed he blacked out, and the next thing he remembered was that he was "bashing [a] rock" into Grover. Clark told the police that he believed he hit Grover in the head with the rock. Clark said that he "remember[ed] throwing a piece of metal" that "looked like an old broken screwdriver or something" but that he did not remember stabbing Grover. When questioned about his earlier statement in the patrol car in which he said he had stabbed Grover, Clark said that was simply his assumption based on the officers telling him that she had stab wounds. The taped statement lasted about 35 minutes.


         A. Pre-Trial Issues

         Clark was arraigned on July 23, 1985, in Ukiah. Clark entered a not guilty plea. Although the crimes occurred in Mendocino County, the state court granted Clark's motion to change venue to Santa Clara County for the trial.

         1. Representation

         At the arraignment, the Mendocino County Public Defender Susan Massini was appointed to represent Clark. In September 1985, Joseph Allen, an experienced capital defense attorney, became co-counsel at Massini's request due to her inexperience with capital cases. Massini and Allen jointly represented Clark through June 1986.

         In January 1986, Massini decided to run for Mendocino County District Attorney. On February 7, 1986, there was a pre-trial conference regarding the trial date. The deputy district attorney wanted the trial date set before June 1986 because he was worried that Massini might be elected District Attorney and present conflict of interest problems. Massini and Allen objected, doubting that such problems would arise. However, Massini was elected as the District Attorney in June 1986 and took office in January 1987. After the election, Allen moved to recuse the District Attorney's Office from prosecuting Clark's case. The court granted the motion, and the Attorney General was substituted as prosecutor. When Massini relinquished the position of Mendocino County Public Defender, Ronald Brown was promoted to that position and became co-counsel with Allen. Brown or his office had previously represented prosecution witnesses Robyn Boyd, David Smith, Dino Stevens, and Matt Williams in unrelated matters.

         2. Psychiatric Evaluation

         In late July 1985, Massini retained Dr. Peter Mayland, a practicing psychiatrist with a specialty in forensic psychiatry, as a mental health consultant to evaluate both Clark's competency to stand trial and the possibility of a mental-health-related defense or mitigation at trial. Dr. Mayland first met with Clark at the Mendocino County Jail several days after Clark was arrested. Dr. Mayland recommended that Massini consult with his former colleague Dr. Rex Beaber to assess whether Clark had an impairment that might provide the basis of a viable mental defense.

         Clark met with Dr. Beaber on November 23 and 24, 1985. Dr. Beaber concluded that he probably could not be of assistance to the defense from a guilt standpoint. Massini requested that Dr. Beaber write a letter to summarize his findings. According to Dr. Mayland's declaration, Dr. Beaber thought it might be best if he did not write a report of any sort, but Massini insisted that he generate a report that detailed his findings. In response to Massini's request, Dr. Beaber drafted a one-page letter detailing his findings. The letter indicates that "Clark does not appear to suffer from any organic brain dysfunction, psychosis, schizophrenia, or affective disorder." According to Dr. Beaber, Clark did not evince any disorder that would impair his capacity to form the requisite intent for the crimes charged. Instead, Dr. Beaber's letter indicates that Clark's "'amnesia' appears to be typical psychogenic post-homicide amnesia [that] is not, in itself, demonstrative of any particular disability regarding the usual mens rea issues." Dr. Beaber's letter concludes that Clark suffers from "a sociopathic personality disorder" and exhibits characteristics of a "sexual psychopath," which resulted from "severe maternal deprivations throughout his childhood." Allen, who became co-counsel after Massini received Dr. Beaber's letter, was unaware of the nature of Dr. Beaber's letter.

         3. Plea Offer

         At some point before the pre-trial suppression hearing, the state offered Clark a deal to plead guilty to first-degree murder with a sentence of life without parole. Dr. Mayland and Brown thought taking the plea deal was the best option, but Allen disagreed. Allen thought there was a good chance he could get a life sentence or even a second-degree verdict. Allen also thought that he could potentially get Clark's statements to the police suppressed at the suppression hearing, but the state declined to leave the deal open through the litigation of the suppression issues. Allen informed Clark "that the only choice he had was life without parole or a trial." Clark ultimately "decided to go to trial."

         4. The Pre-Trial Suppression Hearing

         On October 20, 1986, the court conducted a lengthy hearing on Clark's motion to suppress his confessions. The hearing included both documentary and testimonial evidence.

         Dr. Mayland testified for the defense. By that time, Dr. Mayland had met with Clark regularly and developed a therapeutic relationship with him. Although Dr. Mayland regularly discussed the case with Allen, Allen did not know that Dr. Mayland had talked to Clark about the facts of the crimes beyond Dr. Mayland's initial interview with Clark.

         Dr. Mayland testified that, based upon psychological factors arising from Clark's childhood, lifestyle, and drug use, he possessed "serious doubt" regarding whether Clark could have understood and intelligently waived his Miranda rights on July 19, 1985. During cross-examination, the prosecution asked Dr. Mayland what Clark told him about the crimes. Dr. Mayland testified that Clark told him details about the crimes on two separate occasions-first, in the initial interview at the Mendocino County Jail several days after Clark's arrest, and second, in a meeting about a month after that initial interview. Dr. Mayland reviewed his notes and read them at the suppression hearing.

         In Clark's first account to Dr. Mayland, Clark told Dr. Mayland that he met Grover, that Grover performed oral sex on Clark, and that Grover and Clark had consensual sexual intercourse. According to Dr. Mayland's notes, Clark told Dr. Mayland that Grover said, "If I don't get pregnant, I won't cry rape." Clark then stated, "If you cry rape, this is what's going to happen to you," and he then "put [his] hands on her neck." Then, Clark stated he "blacked out." Clark woke up to Grover "all bloody" and got "scared." He then "ran back to the car, [and] changed his pants and jacket" at Michelle's house.

         In Clark's second account to Dr. Mayland, Clark stated that he grabbed Grover and pulled her behind a building and demanded of Grover, "Why don't you show me some tit, bitch" and "suck my dick" (referred to herein as the "lewd statements"). Grover asked him what he wanted, and Clark pointed to his genital area. Grover said that she would give Clark one hundred dollars to come to her home. Clark said no because Grover would just turn him in. Clark told Grover to take off her clothes. Clark said that Grover was scared and that Clark acted "mean." Grover said to Clark, "Please don't hurt me. I'll do anything you want." Clark then had sexual intercourse with Grover. Afterwards, Clark asked if Grover was "going to cry rape." Clark said, "If you say anything, . . . this is what's going to happen to you if you cry rape." Then, Clark began to choke Grover. According to Dr. Mayland's notes, Clark stated: "I was scared she was going to suffer, so I- . . . I didn't mean to. I lost control. She was still jittering. I stabbed her. I was trying to get it over. I figured I already killed her and didn't want her to suffer. She totally stopped moving. I ran. Went back to the car and changed clothes."

         The state court ruled that the prosecutor could use at trial Clark's statements to Dr. Mayland to impeach Clark's experts, that "tendering of the psychiatric defense" waived any Fifth and Sixth Amendment privileges, and that Clark waived the statutory attorney-client and psychotherapist-patient privileges.

         Allen and Brown both thought that the trial judge had assured them that Dr. Mayland's testimony at the pre-trial suppression hearing would not be admissible at trial for any purpose. According to counsel, this agreement occurred in an unreported in-chambers conference during the suppression hearing. Clark was not present during this conference. Defense Investigator Howard McPherson also understood that the trial judge had assured Allen that Dr. Mayland's testimony would not be admissible at trial for any purpose. The trial judge later stated that he did not recall any such discussion in chambers.

         B. The Trial

         Voir dire on the case started on October 20, 1986, and the presentation of evidence began on March 9, 1987.

         1. The Guilt Phase

         a. The Prosecution's Case at the Guilt Phase

         At trial, the prosecution called experts to testify to the gruesome nature of the crimes. The prosecution also introduced evidence regarding Clark's confessions by calling the detectives to testify regarding Clark's confession in the patrol car and playing the recording of Clark's taped confession at the police station.

         The autopsy confirmed that Grover was raped, stabbed, and beaten. The autopsy was performed under the direction of Dr. Boyd Stephens, who testified at trial. Dr. Stephens opined that the lacerations to Grover's vaginal area were consistent with nonconsensual sexual intercourse, and sperm was found inside and outside her vagina. Dr. Stephens could not make a conclusive finding on whether sodomy had occurred. No trauma to the anal opening was observed, but a "rare" sperm was found in the anus.

         Dr. Stephens testified that, although two of the ten stab wounds penetrated Grover's heart and lungs and could have independently killed her, the actual cause of death was blunt trauma to the head and neck. Dr. Stephens could not determine how many blows had been struck, but nineteen separate areas of blunt trauma were visible. Grover's face was bludgeoned so extensively that her facial structure was collapsed and her brain tissue exuded through her skull fractures. There was no conclusive evidence of attempted strangulation, in large part because the blunt trauma injuries were so extensive that they obscured any signs of strangulation that would have normally been present.

         A criminalist testified about tests performed on the physical evidence. Analysis of the blood splatters on Clark's jeans revealed enzymes consistent with both Clark's and Grover's blood. A hair found on one of Clark's shoes was consistent with Grover's hair. Clark could not be ruled out as the source of semen. The concrete blocks had traces of blood and hair consistent with Grover's. The sharpened screwdriver found in Smith's car approximately a week after the murder bore traces of human blood.

         The prosecution's strategy to fight Clark's theory of "rage reaction" was, during cross-examination of the defense witnesses, to rely on Dr. Mayland's second account of meeting with Clark, including the two lewd statements. The prosecution used the testimony to compel the defense experts to admit that Clark's actions were goal-oriented, and thus is inconsistent with a rage reaction.

         b. The Defense's Case at the Guilt Phase

         Clark did not dispute at trial that he killed Grover, but instead, the defense strategy at trial was to argue Clark lacked the intent to kill her. The defense asserted that Clark had emotional difficulties and chronic drug use that resulted in a "rage reaction" during the crimes. Defense counsel argued that "a person who goes into a rage [reaction] is not acting with intent."

         The defense's case centered around disputing that Clark was able to form the requisite state of mind to kill based on his emotional difficulties, severe depression, and chronic drug use that culminated in a "rage reaction" on the night of the murder. The defense called several witnesses to testify that Clark used drugs from an early age and regularly ingested alcohol, marijuana, and methamphetamine. Witnesses also testified that Clark was severely depressed, attempted suicide in February 1985, and increased his drug usage following the suicide attempt.

         Clark also called numerous expert witnesses during the guilt phase to support the rage reaction theory. These included Dr. Randall Baselt, a forensic toxicologist, who testified regarding his analysis of the blood sample taken from Clark shortly after arrest. Dr. Baselt testified to traces of marijuana and Valium in Clark's blood.

         Dr. Ronald Roberts, a clinical psychologist for the defense, conducted testing on Clark to determine his then-current psychological functioning and whether he suffered from any neuropsychological deficits. Dr. Roberts testified about his test results. The prosecution cross-examined Dr. Roberts by using the two lewd statements in Clark's second account to Dr. Mayland. Dr. Roberts testified that Clark had not mentioned making those statements to Grover, but had told Dr. Roberts that Grover tried to talk Clark out of forcing her to have sex.

         Dr. David Smith, the medical director of the Haight Ashbury Free Medical Clinic, testified extensively about the effects of methamphetamine abuse and the phenomenon of a "rage reaction." He also testified that the extent of debilitative drug effect cannot be determined by the level of methamphetamine in the blood, because the effect of dosages taken over time is cumulative. On direct examination, Dr. Smith testified that "[a] rational, goal-oriented reaction to the sensory stimulus" was less likely to reflect impairment or a so-called rage reaction.

         On cross-examination, the prosecution attempted to show that Clark was engaging in goal-oriented behavior and thus not having a rage reaction. The prosecution relied on testimony in the record and Dr. Mayland's second account to create a hypothetical "goal." The prosecution asked Smith to consider this hypothetical: "Assume that at about 11:00 p.m. at night a man says to certain acquaintances of his I'm going to go out and steal something and I'm going to screw somebody up or beat somebody up." Dr. Smith agreed that this was a "rational goal-oriented statement." The prosecution then asked if a series of hypothetical actions, such as stealing a battery, obtaining a sharpened screwdriver, and grabbing a woman and pulling her behind a building, were consistent with this hypothetical 11:00 p.m. goal-oriented statement. Dr. Smith agreed they were.

         The prosecution then asked about the two lewd statements that Dr. Mayland testified about: Clark's statements to Dr. Mayland that he demanded of Grover "Why don't you show me some tit, bitch" and "suck my dick." The prosecution asked if these statements were consistent with the goal reflected in the hypothetical. Based on the defense's objection and after the judge's sidebar with counsel outside the presence of the jury, the judge ultimately concluded that both lewd statements could be used as hypotheticals in the cross-examination of Dr. Smith. The judge admonished the jury that it could not consider the statements for their truth, but "only as it may assist you in understanding the opinion of this expert now on the stand." Dr. Smith agreed that both lewd statements were consistent with the goal reflected in the hypothetical. The prosecution also asked if, assuming hypothetically, some of the other details of Clark's statements, including removing Grover's clothing, reacting to her threat of reporting him for rape, and killing Grover, were consistent with goal-oriented behavior. Dr. Smith agreed that they were.

         Dr. Stephen Raffle, a psychiatrist for the defense, testified regarding Clark's mental condition at the time of the murder. Dr. Raffle testified that Clark had suffered a rage reaction, and Dr. Raffle diagnosed Clark with a borderline personality disorder. The prosecution asked Dr. Raffle whether Clark admitted to Dr. Raffle that the sexual intercourse was forced, and Dr. Raffle said yes. During the cross-examination of Dr. Raffle, Dr. Raffle agreed that Clark had been lying at some points in his rendition of the story. Dr. Raffle also agreed during cross-examination that Clark could be psychopathic and brilliant, rather than having a rage reaction, based on his lying.

         Later in Dr. Raffle's testimony, the prosecution asked Dr. Raffle to assume the truth of all of the details of Dr. Mayland's testimony regarding Clark's second account. After the prosecution went through Dr. Mayland's testimony, the prosecution asked Dr. Raffle whether he believed Clark's statements about his remorse were genuine. Dr. Raffle testified that he believed they reflected true remorse at the time.

         The prosecution also asked Dr. Raffle about Dr. Beaber's letter. Dr. Raffle responded: "It does not give me any of his clinical data, nor do I have available to me any of his clinical data for analysis."

         c. The Verdict

         On June 22, 1987, the jury convicted Clark of first-degree murder and rape under California Penal Code § 187 and § 261(2). The jury also found true the special circumstance allegations: (a) that Clark committed the murder during the course of the rape under § 190.2(a)(17)(iii); (b) that he inflicted bodily injury with the intent to do so under § 1203.075(a)(1); and (c) that he used a deadly weapon (a screwdriver) in the commission of the murder under § 12022(b).

         2. The Penalty Phase

         a. The Prosecution's Case at the Penalty Phase

         Relying on the circumstances of the murder, the prosecution presented no aggravating evidence during the penalty phase.

         b. The Defense's Case at the Penalty Phase

         The defense presented the testimony of 23 witnesses in mitigation, including Clark's family members, friends, scoutmasters, a teacher, and a mental health counselor. The mitigating evidence focused on Clark's deteriorated family situation, Clark's father's death, and Clark's drug use and mental health problems. The California Supreme Court's decision on direct appeal provides a recitation of Clark's life history presented by the defense at the penalty phase:

Defendant was the eldest child of Diane and Paul Dean Clark and the brother of Robert and Annette. Although some testimony indicated that defendant's father drank and was abusive, defendant's family life was relatively stable until his parents' separation and his father's subsequent death. While his parents were together, defendant was active in the Boy Scouts and his parents served as scoutmasters. Several witnesses remembered defendant as an "excellent" or "good" scout, who interacted well with his peers.
Numerous witnesses recounted how defendant's family situation deteriorated dramatically after his parents' separation, which occurred when defendant was about 10 years old. Defendant's mother worked menial jobs, often at night. The children were generally left unsupervised. Defendant's mother developed a drinking problem. After her shift, she would not go home to the children, but instead would stop to have a few drinks at the local tavern. Defendant's mother failed to provide a sanitary home or nutritious food for the children. Extensive testimony described the filthy conditions of the home. Defendant tried to care for his younger sister in his mother's absence and to subdue the aggressive behavior of his brother.
After his father's death, which was followed closely by the deaths of both his paternal and maternal grandfathers, witnesses noticed a change in defendant's behavior. Defendant became chronically depressed and stayed withdrawn in his room for extended periods of time.
About this time, defendant and his brother began to drink and use drugs. Their house became the neighborhood "party house" and was akin to a "riot area." There was conflicting testimony regarding whether defendant would ingest intoxicants when he was caring for his sister. Several of the friends who frequented the defendant's house testified that he was not "the violent type" and frequently broke up physical fights.
During this period of time, defendant and his siblings would occasionally visit a ranch owned by his maternal grandmother. His grandmother and other relatives remembered defendant as a hard worker who volunteered to do tasks at the ranch.
Defendant and his family received counseling from the fall of 1980 through March of 1983. The counseling was precipitated by a fight between defendant and his brother. The counselor found defendant to be depressed and frustrated in school due to a reading problem. Defendant was cooperative during counseling and seemed to care for his family.
Eventually defendant was removed from his mother's custody and placed in a foster home. He apparently thrived in the structured environment. Defendant had a "beautiful" relationship with the other children in the home. However, he occasionally drank beer and smoked marijuana with his foster mother's son. While living at the foster home, defendant was enrolled in a special education program, which began to address his significant reading deficiency as well as his emotional problems. Defendant was a responsible student and did well in his classes. He was popular and would defend other children. He continued to have a problem with drug usage during the school day, which his teacher attributed to a need to escape the pain and anger he felt about his mother and brother.
When defendant graduated from high school, he was forced to leave his foster home. He worked at the Aloha Saw and Mower Shop. The owner remembered him as a reliable worker with a good attitude. He lived for a time with Keith Michalek. Both Keith and his father recalled defendant as a good, trustworthy person, who was never "rowdy." While he was living with Keith, he drank beer and smoked marijuana occasionally, but did not use "hard" drugs.
Defendant's mother convinced defendant to quit his job and come live with her in Anderson. His mother later moved to Oregon without him. Prior to his mother's move, defendant tried to commit suicide, apparently as the result of a failed romantic relationship.
While he was living in Anderson, defendant began to care for Smith. Robert Clark testified that Smith was a heroin addict. About three months before the murder, defendant injected methamphetamine for the first time.
Numerous witnesses testified that they could not believe that defendant had committed the crimes for which he was convicted.
Finally, the jury heard that while he was awaiting his trial, defendant continued his attempt to overcome his reading deficiency by working with a counselor from the ...

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