and Submitted April 16, 2019 Pasadena, California
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
R. Grele (argued), San Francisco, California, for
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.
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).
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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
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
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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
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.
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.
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
Pre-Trial Suppression Hearing
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.
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.
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.
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.
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
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.
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.
dire on the case started on October 20, 1986, and the
presentation of evidence began on March 9, 1987.
The Prosecution's Case at the Guilt Phase
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.
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.
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.
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.
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.
The Defense's Case at the Guilt Phase
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."
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.
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.
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
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.
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
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.
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.
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.
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."
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 §
The Prosecution's Case at the Penalty Phase
on the circumstances of the murder, the prosecution presented
no aggravating evidence during the penalty phase.
The Defense's Case at the Penalty Phase
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
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
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 ...