Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carter v. Davis

United States Court of Appeals, Ninth Circuit

December 26, 2019

Dean Phillip Carter, Petitioner-Appellant,
v.
Ron Davis, Warden, San Quentin State Prison, Respondent-Appellee. Dean Phillip Carter, Petitioner-Appellant,
v.
Ron Davis, Warden, San Quentin State Prison, Respondent-Appellee.

          Argued and Submitted March 28, 2019 San Francisco, California

          Appeal from the United States District Court for the Central District of California, No. 2:06-cv-04532-RGK R. Gary Klausner, District Judge, Presiding

          Appeal from the United States District Court for the Southern District of California, No. 3:06-cv-01343-BEN-KSC Roger T. Benitez, District Judge, Presiding

          Michael D. Weinstein (argued) and Mark Yim, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          Annie Featherman Fraser (argued), Deputy Attorney General; Holly D. Wilkens, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

          Before: Johnnie B. Rawlinson, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus / Death Penalty

         In appeals arising from Dean Phillip Carter's habeas corpus petitions challenging his convictions and death sentences in separate cases in Los Angeles and San Diego Counties, the panel (1) affirmed district court judgments in the Central and Southern Districts of California denying his petitions; (2) granted, as to one claim in the Central District, Carter's supplemental motion to expand the certificate of appealability; and (3) otherwise denied the supplemental motion to expand the certificate of appealability.

         The Central District certified two claims for review: (1) that an irreconcilable conflict between Carter and trial counsel resulted in a denial of his Sixth Amendment rights, and (2) that trial counsel rendered ineffective assistance because they refused to allow Carter to testify in his own defense.

         • The panel held that even if Carter were able to demonstrate a complete breakdown in communication or prove that an irreconcilable conflict with trial counsel existed under this circuit's precedent, his irreconcilable-conflict claim would fail because the U.S. Supreme Court has never held that an irreconcilable conflict with one's attorney constitutes a per se denial of the right to effective counsel. The panel explained that this proves fatal to Carter's claim because AEDPA conditions habeas relief on a determination that the state-court decision unreasonably applied "clearly established Federal law" as pronounced by the U.S. Supreme Court.

         • The panel held that the California Supreme Court reasonably determined that counsel did not perform deficiently by refusing to let Carter testify, and that even if counsel performed deficiently by refusing to do so, the California Supreme Court's determination that Carter cannot show prejudice was not an unreasonable application of law.

         The Southern District certified two claims for review: (1) that Carter's trial counsel rendered ineffective assistance at the penalty phase, and (2) that Carter was deprived of his right to the competent assistance of a psychiatric expert.

         • The panel held that Carter failed to establish that the California Supreme Court was unreasonable in denying relief on his contentions that counsel performed deficiently (a) by focusing on the positive aspects of Carter's career and family life as a result, rather than giving greater emphasis to his traumatic childhood; and (b) by failing to conduct an adequate investigation into Carter's mental health, including the possibility that he suffered from fetal alcohol syndrome.

         • The panel held that Carter failed to establish that Ake v. Oklahoma, 470 U.S. 68 (1985), or any other U.S. Supreme Court decision would cause jurists of reason to disagree with the reasonable arguments in support of the California Supreme Court's denial of his claim that he was deprived of the right to competent assistance of a psychiatric expert at trial. The panel wrote that, as Carter conceded, the U.S. Supreme Court has never interpreted Ake to guarantee a due process right to effective expert assistance at trial.

         The panel issued a certificate of appealability on one claim, not certified by the Central District, alleging ineffective assistance of counsel at the penalty phase. The panel affirmed the denial of relief on that claim because the California Supreme Court's determination that counsel satisfied the deferential standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), is not contrary to or an unreasonable application of federal law. The panel wrote that the California Supreme Court may reasonably have concluded that the investigation supporting counsel's decision not to introduce more mitigating evidence was reasonable, and that even if Carter's defense team performed deficiently, the California Supreme Court could reasonably have concluded that Carter was not prejudiced by their performance.

         The panel denied a certificate of appealability as to the rest of the claims not certified by the Southern and Central District Courts.

          OPINION

          PER CURIAM:

         In separate proceedings in Los Angeles and San Diego, Dean Phillip Carter (Carter) was convicted of murder, rape, robbery, and burglary and sentenced to death. Carter filed petitions for writs of habeas corpus in the United States District Courts for the Central District of California and for the Southern District of California. The district courts denied Carter's petitions.

         In appeal No. 13-99003, we affirm the judgment of the Central District and deny Carter's motion to expand the certificate of appealability (COA) as to all claims except claim 6, regarding ineffective assistance of counsel at the penalty phase.

         In appeal No. 13-99007, we affirm the judgment of the Southern District and deny Carter's motion to expand the COA.

         I. BACKGROUND

         Carter stood trial in Los Angeles County and San Diego County for charges stemming from a crime spree throughout California in Spring 1984. In the Los Angeles proceedings, Carter was accused of the rape and murder of Bonnie Guthrie and the burglary of her residence; and of the murder of Susan Knoll, rape and murder of Jillette Mills, and the burglary of their shared residence. In San Diego County, Carter was accused of the murder and robbery of Janette Cullins and the burglary of her residence; and of the rape, forcible oral copulation, and robbery of B.S.[1] and the burglary of her residence. In both the Los Angeles and San Diego proceedings, prosecutors also introduced evidence of Carter's prior convictions for rape, robbery, and assault of J.S. in Ventura County, and of his connection to the murder of Tok Kim in Alameda County. The crimes occurred over four California counties over a period of about three weeks. We describe them briefly and chronologically.[2]

         A. The Crimes

         On March 25, 1984, Carter broke into the San Diego home of B.S. wielding a knife and demanded money. After taking B.S.'s cash, he raped her, hog-tied her, and stole her car.

         On March 27, Carter raped J.S. at knifepoint in her Ventura County apartment, cut her face, strangled her twice to the point at which she lost consciousness, and stole cash from her.[3]

         On April 1, Carter met Tok Kim at a bar in Lafayette, California, and offered to help her with car trouble. Over the next two days, a service station manager named David Hogan observed Carter and Kim at his station together. Hogan observed that Carter was wearing sunglasses and a black "Members Only" style jacket. On the night of April 10, Kim's neighbor heard Kim arguing in her Oakland apartment with an unidentified man who was not her boyfriend. Kim's co-workers notified her apartment manager after Kim did not appear for work on two consecutive days. On April 13, the apartment manager found Kim's body on her bedroom floor. The pathologist who performed the autopsy could not determine the cause of death because of the body's advanced stage of decomposition but testified that a curtain tie found beneath her neck could have been used to strangle her.[4]

         On April 11, Culver City, California resident Susan Knoll went absent from her job at a bank. Knoll's co-worker took a call from an unidentified man who informed her that Knoll had been in a traffic accident and was being treated for minor injuries at a hospital. The same day, after Knoll's roommate Jillette Mills failed to respond to her brother's attempts to contact her, the brother and a friend searched for Mills at her apartment, place of employment, and college but were unable to find Mills or her car. The two men then climbed a fence to enter Mills's and Knoll's unlocked apartment and found the bodies of both women stacked in the closet.

         Investigators discovered Kim's vehicle outside of Mills's and Knoll's apartment. Inside the vehicle was a pair of sunglasses, which Hogan identified as matching a pair he observed Carter wearing at his station while with Kim. Mills's white Datsun was missing. Inside the apartment, investigators retrieved a palm print matching Carter's from the bathroom sink. An autopsy determined that Knoll died of manual strangulation and Mills died of ligature strangulation. Both women also suffered injuries consistent with having struggled against an assailant and had seminal fluid on their genital areas. Mills additionally suffered injuries to her genital area consistent with traumatic sexual assault.

         Also on April 11, the manager of Bonnie Guthrie's apartment building in Los Angeles entered Guthrie's apartment with a repairman. Guthrie was Knoll's best friend. The manager observed Guthrie lying on her bedroom floor and remarked to the repairman that she was sleeping. The next day, the manager noticed Guthrie's vehicle in the garage and wondered why she had not gone to work. He entered the apartment, observed Guthrie lying in the same position, and notified police. An autopsy determined that Guthrie died of ligature strangulation and that she had suffered injuries to her genital area consistent with traumatic sexual assault. Two days after the discovery of Guthrie's body, a witness found Guthrie's wallet in a San Diego shipyard, approximately fifty feet from a white Datsun matching the description of Mills's missing vehicle.

         On April 12, Carter visited the San Diego apartment of Janette Cullins and her roommate Cheri Phinney. Carter and Cullins knew one another socially, and had met for drinks and dinner with other friends on two occasions in February and March 1984. On March 24, Carter had attempted to contact Cullins through her friend Cathleen Tiner. When Tiner told Cullins that Carter had called for her, Cullins became upset. Cullins had also told her former roommate, Nancy McEachern, that if Carter called for her she did not want to speak with him. When Carter visited Cullins on April 12, Cullins asked Phinney to come through the living room so that Carter would be aware that someone else was in the apartment. Carter left the apartment after an hour.

         That evening, Cullins and Tiner attended the symphony together. Cullins informed Tiner that Carter was back in town. At 11:00 p.m., Cullins left Tiner's apartment and was never seen alive again. Between 11:15 and 11:30 p.m., Cullins's neighbor observed a white Datsun matching the description of Mills's missing vehicle outside of Cullins's apartment. The neighbor observed the vehicle drive away at 11:30, nearly hitting another vehicle while making a U-turn and running through a stop sign.

         On April 13, Phinney and McEachern each attempted to contact Cullins without success. At midday, McEachern drove to Cullins's apartment and encountered Carter, who was driving a white Datsun. Carter asked McEachern if Cullins was home. That evening, Carter unexpectedly visited Tiner at her home and commented that Cullins had "stood [him] up" that day. Tiner then unsuccessfully attempted to contact Cullins.

         The following day, Phinney and McEachern searched Cullins's apartment and found her partially clothed body in her bedroom closet. A police investigation found damage to the front door consistent with a forced entry. An autopsy determined that Cullins died of ligature strangulation and that she had sustained a wound consistent with the use of a sharp knife either while she was dying or after she had died.

         On the same day Cullins's body was discovered, a pedestrian found a wallet containing Cullins's driver's license and credit cards in bushes next to a sidewalk on North Harbor Drive in San Diego. The pedestrian testified that he had seen a white Datsun matching the description of Mills's missing vehicle parked within one block of where he had found the wallet during the same week. Later that day, police recovered Guthrie's purse from the same area of North Harbor Drive.

         On April 17, an Arizona Highway Patrol officer observed Mills's white Datsun driving erratically on Interstate 40 in Yavapai County, Arizona. The officer initiated a traffic stop and discovered Carter alone in the vehicle with what appeared to be a burnt marijuana cigarette and placed Carter under arrest on suspicion of driving under the influence. While searching the vehicle for marijuana, the officer discovered Cullins's bank identification card between the driver's seat and center console.

         A full search of the vehicle recovered the following items: a suitcase, Korean-made wood-handled knife, yellow rubber gloves, and a gold chain, all belonging to Kim; a supermarket card belonging to Knoll; towels, athletic wear, and photographic equipment, all belonging to Mills; three hand-woven sweaters belonging to Guthrie; a key ring belonging to Cullins; a piece of paper with Cullins's bank password written on it; and a black "Members Only" jacket matching the description of the jacket Hogan had seen Carter wearing while with Kim. The jacket contained a butcher knife, a knee-high nylon sock, and a business card from Hogan's service station.

         Bank records revealed that all but $4.06 of Cullins's bank account balance had been withdrawn from an ATM on April 13, the day after she was last seen alive. A video of the transaction showed a man wearing one of Guthrie's sweaters and a black jacket withdrawing the funds. A handwriting expert testified that there were "very strong indications" that Cullins had written the password on the slip of paper recovered from the Datsun but also could neither eliminate nor identify Carter as the writer.

         B. Criminal Proceedings

         1. Los Angeles County

         The Los Angeles trial regarding the crimes against Knoll, Mills, and Guthrie was bifurcated into guilt and penalty proceedings. At the guilt phase, Carter's counsel rested without calling any witnesses or putting on a defense. Carter was convicted on all counts. At the penalty phase, Carter's counsel presented an extensive mitigation case detailed below. Carter was sentenced to death.

         2. San Diego County

         The San Diego trial, which followed his conviction in Los Angeles County, was also bifurcated into guilt and penalty proceedings regarding the murder of Cullins and the rape of B.S. Carter stipulated before trial that he had been convicted of the murders of Knoll, Mills, and Guthrie.

         At the guilt phase, counsel put on a defense by calling several witnesses. But the jury found Carter guilty of the murder of Cullins, and found true the special circumstances that the murder was committed while lying in wait, during the commission of both a robbery and a burglary, and that Carter had previously been convicted of the murders of Knoll, Mills, and Guthrie. It further found Carter guilty of the robbery of Cullins and the burglary of her residence and found that he had inflicted great bodily injury during the course of these crimes. The jury also found Carter guilty of the forcible rape, forcible oral copulation, and robbery of B.S. and the burglary of her residence, and determined that Carter had used a deadly weapon (a knife) in the commission of each of his crimes against B.S.

         At the penalty phase, counsel presented a mitigation case similar to that presented in the Los Angeles trial. The jury returned a recommendation of the death penalty. The court imposed a death sentence.

         C. California Supreme Court Proceedings

         Carter's convictions and sentences were appealed to the California Supreme Court. While those appeals were pending, Carter filed his first round of state habeas petitions in that court. In 2005, the California Supreme Court affirmed the convictions and death sentences in two separate, reasoned opinions. People v. Carter, 117 P.3d 476 (Cal. 2005) (Los Angeles); People v. Carter, 117 P.3d 544 (Cal. 2005) (San Diego). The court affirmed both judgments in their entirety with the exception of the San Diego court's finding of the special circumstance of lying in wait on the Cullins murder charge, which it set aside. Carter sought review of these decisions in the Supreme Court of the United States, which denied his petitions for writ of certiorari in 2006. Carter v. California, 547 U.S. 1099 (2006) (mem.) (Los Angeles); Carter v. California, 547 U.S. 1043 (2006) (mem.) (San Diego).

         In 2006, the California Supreme Court summarily denied Carter's habeas petitions on the merits. Carter filed two subsequent rounds of state habeas petitions in 2007 and 2010. The California Supreme Court summarily denied each of those petitions on the merits in 2010.

         D. Federal Habeas Proceedings

         Carter initiated the instant proceedings in 2007. In a petition for writ of habeas corpus filed in the United States District Court for the Southern District of California, he asserted seventeen claims for relief related to his San Diego County trial. Two days later, he filed a petition for writ of habeas corpus in the United States District Court for the Central District of California, asserting seventeen additional claims for relief related to his Los Angeles County trial. Carter filed amended petitions in both federal district courts in 2010, reducing the number of claims in his Southern District petition to sixteen.

         In 2013, the Central District of California published a 146-page order dismissing two of Carter's claims without prejudice and denying the rest of his claims on the merits. The district court granted a COA on two of Carter's claims: that an irreconcilable conflict between Carter and trial counsel resulted in a denial of his Sixth Amendment rights (Certified Claim 1, and Claim 1 of the First Amended Petition); and that trial counsel rendered ineffective assistance because they refused to allow Carter to testify in his own defense (Certified Claim 2, and Claim 5(D) of the First Amended Petition). It denied a COA on the remaining claims.

         Later in 2013, the Southern District of California published a 318-page order denying all claims on the merits. The district court granted a COA on two claims: that trial counsel had rendered ineffective assistance during the penalty phase (Certified Claim 1, and Claim 3 of the Second Amended Petition); and that Carter was deprived of his right to the competent assistance of a psychiatric expert (Certified Claim 2, and Claim 4 of the Second Amended Petition). It denied a COA on the remaining claims. Carter filed a motion under Federal Rule of Civil Procedure 59(e) or 60(b) to vacate the order denying his petition and allow him to return to state court to further develop the evidentiary record. The Southern District denied this motion in a reasoned decision.

         Carter timely appealed both district court orders.

         II. STANDARD OF REVIEW

         "We review the district court[s'] denial of a habeas petition de novo." Jones v. Harrington, 829 F.3d 1128, 1135 (9th Cir. 2016). Carter's habeas petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which forecloses federal habeas relief for "any claim that was adjudicated on the merits in State court" unless the state court's decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

         These standards are "intentionally 'difficult to meet.'" Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)). "'[C]learly established Federal law' for purposes of § 2254(d)(1) includes only 'the holdings'" of Supreme Court decisions; it does not include Supreme Court dicta or circuit precedent. Woodall, 572 U.S. at 419-20 & n.2; see Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam). A state-court decision is "contrary to" clearly established Supreme Court precedent "if it 'applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.'" Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state-court decision "involve[s] an unreasonable application" of clearly established Supreme Court precedent if "it correctly identifies the governing legal rule" but then applies that rule to the facts of a particular case in an "objectively unreasonable" way, such that the state court's ruling rested on "an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Woodall, 572 U.S. at 421, 426-27 (citations omitted). Finally, a state-court decision is "based on an unreasonable determination of the facts" if "we are convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (citation and internal alteration omitted).

         These deferential standards apply to each claim adjudicated on the merits in state court, regardless of whether the state court disposed of the claim in a reasoned opinion or a summary ruling. Harrington v. Richter, 562 U.S. 86, 99 (2011). We generally "look to the last reasoned state court decision to address the claim" on the merits. White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018)). If there is no reasoned state-court decision, we must "determine what arguments or theories . . . could have supported[] the state court's decision." Richter, 562 U.S. at 102.

         Finally, even if a habeas petitioner satisfies one of the § 2254(d) prongs for relief, he must show that the claimed trial error "resulted in 'actual prejudice.'" Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). "Under this test, relief is proper only if the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict." Id. at 2197-98 (internal quotation marks omitted).

         III. CERTIFIED CLAIMS

         We begin with the claims certified by the district courts. For three of the four claims, the "clearly established Federal law," 28 U.S.C. § 2254(d)(1), is the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), which held that the Sixth Amendment guarantees a criminal defendant the "right to the effective assistance of counsel" at both the guilt and penalty phases of a capital trial. Id. at 685-87. Under Strickland, a defendant claiming denial of effective assistance of counsel "bears the burden to meet two standards." Weaver v. Massachusetts, 137 S.Ct. 1899, 1910 (2017).

         First, the defendant "must show deficient performance-that the attorney's error was 'so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Id. (quoting Strickland, 466 U.S. at 687). Under Strickland, our inquiry is highly deferential, and we "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). "To overcome that presumption, a defendant must show that counsel failed to act 'reasonably considering all the circumstances.'" Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (alteration omitted) (quoting Strickland, 466 U.S. at 688). The relevant inquiry is "whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). And given the "temp[tation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence," the Supreme Court has strongly cautioned us against drawing the conclusion "that a particular act or omission of counsel was unreasonable" just because it "proved unsuccessful." Strickland, 466 U.S. at 689.

         Second, the defendant must "demonstrate prejudice-'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Buck v. Davis, 137 S.Ct. 759, 776 (2017) (quoting Strickland, 466 U.S. at 694). In the context of a death sentence, "[t]he question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Pinholster, 563 U.S. at 198 (alteration omitted) (quoting Strickland, 466 U.S. at 695).

         "Surmounting Strickland's high bar is never an easy task," and "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 562 U.S. at 105 (citations omitted). Our review under AEDPA is "doubly deferential," as we must "afford 'both the state court and the defense attorney the benefit of the doubt.'" Donald, 135 S.Ct. at 1376 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).

         A. Claims Certified by the Central District: Claims 1 and 5(D)(1), Carter's Conflict with Counsel

         The Central District issued a COA for two largely overlapping claims, which it addressed together. The certified claims effectively present two questions on appeal: whether the California Supreme Court's decisions that (1) Carter was not denied his Sixth Amendment right to counsel because of an "irreconcilable conflict" with his trial counsel and (2) counsel's performance in refusing to let Carter testify was not deficient, and even if it was, Carter was not prejudiced, were contrary to or an unreasonable application of clearly established federal law. For the reasons stated below, we hold that the California Supreme Court did not violate clearly established federal law in denying Carter relief.

         1. Carter's Attorneys and the Marsden Hearings

         Ezekiel Perlo was initially appointed lead counsel and represented Carter, along with Marcia Morrisey, for over two years during 1986-1988. About a year prior to trial, in March 1988, the court appointed Rowan Klein to assist Carter in his motion to substitute counsel, which under California law is referred to as a Marsden motion. See People v. Marsden, 465 P.2d 44 (Cal. 1970). The trial court held a Marsden hearing in which Klein notified the court that conflicts between Perlo and Carter had "led to a total breakdown of the attorney-client relationship" and that Carter wanted a new attorney to be appointed in place of Perlo. The trial court was troubled by this "easily made," "blanket statement" that would further delay a trial already "long overdue." It nevertheless agreed that the conflict between Perlo and Carter did not give it "much choice" but to grant the motion. The court appointed Howard Gillingham lead counsel a week later, and he and Morrissey represented Carter throughout the duration of the trial.

         a. July 5 (First Marsden Hearing)

         On July 5, 1989, just after the prosecution rested during the guilt phase, Gillingham requested an ex parte hearing to apprise the trial court of a disagreement between him and Carter. Gillingham invoked Marsden in requesting the hearing but did not say anything that would suggest Carter had requested new counsel. Gillingham stated he wanted to "spread something on the record regarding the defense strategy and position." He informed the court that it was his and Morrissey's "firm belief that [they] should rest" and not put on a defense at the guilt stage. He noted that there were a number of potential witnesses he could call but that they made the "tactical decision not to call those witnesses." He did not mention Carter as one of those witnesses. Gillingham acknowledged Carter emphatically disagreed with the decision not to call any witnesses and that Carter wanted the disagreement preserved in the record. Gillingham argued that this was a situation where the appointed lawyers "should call the shots." The trial court agreed, noting "the record is clear" and that "in these matters the decisions should be with the counsel." Carter did not speak during the hearing and Gillingham subsequently testified that, based on his belief that the "lawyer ought to do the talking," he had instructed Carter not to speak unless the court directly addressed him.

         b. July 10 (Second Marsden Hearing)

         Carter later testified that after the first Marsden hearing, he complained to Gillingham for leaving out "a couple of things," including telling the court about his desire to testify, and for not "ma[king] it as clear as [Carter] would have liked." Thus, on July 10, after both parties had rested but prior to closing arguments, Gillingham requested another hearing, which he noted "probably should be done in a sealed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.