Filed 6/9/03 (Publishers: this opn. should follow P. v. Cox, also filed this date.)
IN THE SUPREME COURT OF CALIFORNIA
In re MICHAEL ANTHONY COX
)
on Habeas Corpus.
) S004507
On November 26, 1985, petitioner was sentenced to death for the 1984 first
degree murders of teenagers Denise Galston, her sister Debbie Galston, and Lynda
Burrill, with the special circumstance of multiple murder. (Pen. Code, §§ 187,
190.2, subd. (a)(3).) Petitioner’s automatic appeal has been considered and our
opinion affirming the judgment of guilt is being filed simultaneously with this
opinion. (People v. Cox (June 9, 2003, S004703) ___ Cal.4th ___.)
I. EVIDENCE ADMITTED AT PETITIONER’S TRIAL
The facts adduced at petitioner’s trial are set forth in detail in our opinion in
the automatic appeal, People v. Cox, supra, __ Cal.4th ___. In brief, the evidence
showed that the three teenage victims — Debbie Galston (Debbie), Denise Galston
(Denise) and Lynda Burrill (Lynda) — lived in Placerville. Debbie, Denise,
Joanna N. (Joanna) and Darlene S. (Darlene) lived in Nona Chapman’s foster
home. Joanna testified that she saw petitioner stab Denise to death on June 12,
1984. Lynda was alone with petitioner when last seen alive on June 29, 1984.
Debbie disappeared on August 8, 1984 and petitioner was seen in the same
vicinity at the time of her disappearance. Defendant had made disparaging
remarks toward all three victims and had threatened Debbie. The unclothed
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bodies of all three victims were found in the El Dorado National Forest. Darlene,
defendant’s girlfriend at the time the murders occurred, testified that defendant
told her he had killed the three victims.
II. THE HABEAS CORPUS PETITION
A. Statement of the Case
On February 29, 1988, while the automatic appeal was pending, petitioner
filed the instant petition for writ of habeas corpus alleging that prosecution
witnesses Joe and Linda Crespin and Darlene had testified falsely at trial; that the
prosecutor withheld from the defense a statement from a potential witness, Kathy
Erbe, that impeached the testimony of Joe and Linda Crespin and Darlene; and
that trial counsel provided ineffective assistance of counsel. On August 18, 1988,
we issued an order to show cause. On June 22, 1989, we issued a reference order
directing the taking of evidence on three questions:
“1. What, if any, information was provided to the prosecution by Kathy
Erbe regarding statements made by Joe and Linda Crespin relevant to this case? If
any such information was provided, was it furnished to the defense? Which, if
any, statements relevant to the case attributed by Kathy Erbe to Joe and Linda
Crespin were in fact made by the Crespins?
“2. Did Darlene [S.] give false testimony at trial that was substantially
material or probative on the issue of guilt or punishment? If so, in what respects
was her testimony false?
“3. Was trial counsel Patrick Forester’s pretrial investigation of the
credibility of Darlene [S.] conducted in a manner to be expected of reasonably
competent attorneys acting as diligent advocates? If not, in what respects was it
inadequate? If his investigation was inadequate, what additional information
would an adequate investigation have disclosed?”
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On April 6, 1990, petitioner filed a supplemental petition for writ of habeas
corpus alleging that Joanna, the sole eyewitness to the murder of Denise, had
testified falsely at trial. On October 24, 1990, we issued another order to show
cause. On March 27, 1991, we added a fourth question to be addressed during the
reference hearing:
“4. Did Joanna [N.] give false testimony at trial that was substantially
material or probative on the issue of guilt or punishment? If so, in what respects
was her testimony false?”
The reference hearing commenced in February 1994. On August 5, 1994,
during the hearing, petitioner filed a second supplemental petition for writ of
habeas corpus alleging that Linda Crespin gave false testimony at trial regarding a
statement that she attributed to petitioner. On September 7, 1994, we expanded
the reference order to include the following question:
“5. Did Linda Crespin give false testimony at trial that was substantially
material or probative on the issue of guilt or punishment, when she testified that
petitioner said he was seeing a girl named Linda, and that ‘girls like that should be
eliminated’?”
B. Events Prior to the Reference Hearing
On January 16, 1992, Joanna was granted immunity by the El Dorado
County District Attorney’s Office for any false testimony she may have given at
petitioner’s preliminary hearing and capital trial, and as to any false statements
contained in a 1990 posttrial declaration. Thereafter, she recanted the part of her
trial testimony in which she claimed to have seen petitioner kill Denise. Instead,
she claimed she had not been an eyewitness to the murder and had “made up” the
whole story.
Darlene also testified at the reference hearing under a grant of immunity
given by the El Dorado County District Attorney’s Office. Like Joanna, Darlene
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recanted portions of her trial testimony and also stated that petitioner never
confessed his involvement in the murders to her.
C. Summary of the Referee’s Findings
As noted, the reference hearing commenced in February 1994. It was
conducted by retired San Joaquin County Superior Court Judge Bill Dozier. The
hearing concluded on January 19, 1995. After extensive briefing, the referee filed
his 1,129-page report on July 7, 1999.
As explained more fully below, the referee found that (1) Kathy Erbe did
not provide, prior to trial, any relevant information to the prosecution; (2)
Darlene’s trial testimony was true regarding many of petitioner’s incriminating
acts and statements, but Darlene fabricated petitioner’s confession because of
undue pressure from law enforcement; (3) trial counsel’s performance was
deficient because he failed to subpoena Darlene’s education records and failed to
prepare transcripts of Darlene’s tape-recorded interviews with sheriff’s deputies,
but these omissions did not prejudice petitioner; (4) despite her recantation,
Joanna’s trial testimony that she had witnessed petitioner murder Denise was true,
but she lied about how she had returned to Placerville following the murder; and
(5) Linda Crespin did not testify falsely at trial when she said petitioner told her
that girls like Lynda should be “eliminated.” The referee also found that the false
trial testimony by Joanna and Darlene was not substantially material on the issue
of petitioner’s guilt or punishment. For the reasons stated below, we discharge the
order to show cause.
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III. EVIDENCE ADMITTED AT THE 1994 REFERENCE HEARING
A. Joanna
1. The
1992
Recantation
a. Background
As recounted in detail in our opinion in the automatic appeal (People v.
Cox, supra, __ Cal.4th at pp. __-__ [pp. 5-6]), Joanna testified at trial in 1985 that
she accompanied petitioner and Denise to a wooded area near Placerville. She
heard Denise screaming and saw her running in the nude, her hands behind her
back, with petitioner in pursuit. Petitioner caught up with Denise, pushed her
down, and stabbed her. Joanna then ran to a road, flagged down a passing car, and
got a ride back to Placerville with a person named Joe.
Joanna recanted her trial testimony on January 16, 1992, but the
circumstances surrounding her recantation were suspect. In 1990, Joanna
separated from her husband, Allen Dwyer. The two became embroiled in a bitter
custody battle over their daughter. In March and April of 1990, Dwyer, Anita
Hooser (Dwyer’s mother), and Laura Lawrence (Dwyer’s friend) executed signed
declarations, prepared by the State Public Defender’s Office, that stated Joanna
told them she had lied at trial. Dwyer further claimed that Joanna told him she
was passed out in a park at the time she claimed to have witnessed the murder.
On April 27, 1990, Joanna executed a responding declaration denying she
ever told Dwyer, Hooser, or Lawrence that she had lied at trial; she admitted that
she originally had lied to police shortly after the murder because she was afraid
they would think she was involved in the murder if she said she was a witness; she
added that her trial testimony was true. Joanna stated that Dwyer’s allegations
stemmed from the custody dispute and the fact she had filed a child abuse claim
against Dwyer.
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b. Defense Investigator Tactics
In September 1990, Marilyn Mobert, an investigator with the State Public
Defender’s Office, armed with the Dwyer declaration, arrived at Joanna’s house
unannounced and, in front of Joanna’s daughter, accused Joanna of having lied at
trial and threatened her with a perjury charge. She told Joanna that a witness
would place Joanna in a park in the late night hours of June 12, 1984, which would
show that Joanna’s trial testimony about witnessing the murder was a lie. (No
such witness ever came forward.) Mobert then told Joanna that she would not go
to prison and lose her children if she told the truth. Mobert suggested that there
was a “solution”; Joanna could hire a lawyer who could arrange a grant of
immunity. Joanna could then safely go to court, recant her trial testimony, receive
no punishment and keep her children.
Joanna testified she was so upset by Mobert that she burst into tears.
Immediately thereafter, Joanna phoned El Dorado County Sheriff’s Sergeant Bill
Wilson in a panic. Joanna told him that she did not want this case to interfere with
her custody dispute. Sergeant Wilson thereafter told his wife that Joanna might
recant her trial testimony. His fears were realized. On January 16, 1992, Joanna,
in the presence of her attorney, formally recanted her trial testimony after she had
been granted immunity.
c. Joanna’s Recantation
Dr. Frank Dougherty, a psychologist, conducted a portion of the interview
of Joanna that took place on January 16, 1992. Joanna told Dr. Dougherty she did
not see petitioner kill Denise. She claimed she had lied about witnessing Denise’s
murder because she “felt . . . pressure whether it be [from her] own self” or from
the fact that she felt she had to say “something significant.” She asserted she had
not seen petitioner on June 12, 1984, the night Denise was murdered.
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Joanna claimed to remember an incident in which a cement block was
thrown through the windshield of a police car (see People v. Cox, supra, ___
Cal.4th at p. ___ [p. 4]), but after that point she was not sure what she “did for the
next . . . hour or so,” but recalled that she “ended up” sleeping at Bruce Nesthus’s
house. She said she was not frightened when she was with Nesthus and did not
hide behind him when cars drove by. She said she made up the little details of the
murder, like throwing up once she got out of petitioner’s car at the murder scene,
“as I went along.”
Joanna also stated that in 1987, after the trial was concluded, she had a
conversation with Sergeant Wilson in which she told him that she had lied at trial
about getting a ride back from the scene of the murder with a person named Joe.
She added that she may have told Sergeant Wilson that she lied about seeing
Denise get stabbed, but she had heard Denise scream. Sergeant Wilson, she said,
told her that these details were not significant.
Dr. Dougherty pointed out that Joanna told him, back in November 1984,
that on the night of Denise’s murder, she had seen Denise at the Stancil’s Toyota
dealership and near the tunnel underpass. Joanna replied that she made that up.
Dr. Dougherty asked why she made that up, given that she hadn’t yet told him she
was a witness to the murder. Joanna replied: “I don’t know. I don’t really have a
good reason for it.”
When asked why she told Fay Harnage and her husband, El Dorado County
Sheriff’s Detective Erol Harnage, she knew something about the case when she
now claimed she knew nothing, Joanna replied: “I . . . I really don’t know the
answer to that, except that I was a very confused teenager at the time and . . . ah
. . . I . . . I don’t have a good explanation for it.”
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d. The three trips to the murder scene
As more fully explained in our opinion in the automatic appeal (People
v. Cox, supra, ___ Cal.4th at pp. ___-___ [pp. 8-9]), on two occasions prior to
trial, Joanna led Dr. Dougherty and El Dorado Sheriff’s deputies, Detective
Harnage and Sergeant Wilson to the scene of Denise’s murder. The first time, on
November 2, 1984, Joanna directed them to Ferrari Mill Road as far as the
intersection known as “Four Corners,” where she became nonresponsive. On
November 6, 1984, they returned to Four Corners and Joanna, who had started to
cry, recognized a tree stump painted with yellow paint and told them to go straight
ahead but, after they had gone about a half-mile, said they were on the wrong road.
They returned to Four Corners and Joanna pointed to the road on their left, which
was the road leading to where Denise’s remains had been found.
During trial, Joanna returned to Four Corners with Sergeant Wilson. She
told him to drive straight ahead but after they had gone about 75 yards she told
him to return to the intersection and directed him to the right. After they had gone
about 150 yards, she again had him return to the intersection and take the road to
the left, which was the road leading to where Denise’s remains had been found.
When they reached the area where Denise’s body had been found, she asked
Sergeant Wilson to stop the car. She exclaimed, “This is the spot,” and began to
cry.
During the January 16, 1992 interview in which Joanna recanted her
testimony, Dr. Dougherty asked Joanna how she was able to give directions to the
murder location. Joanna said: “We drove up there, and the only reason why I did
know was that I, somehow I . . . I knew that it was off of Ferrari Mill Road.” She
continued: “And so I was able to show you that was where it was. And I don’t
know if I read that in the paper. There’s a possibility that maybe the bodies had
been found there . . . or . . . ahm . . . somebody maybe had said that to me. But I
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think it was through the paper.” Dr. Dougherty asked Joanna how she knew how
to get to Ferrari Mill Road, adding that he did not know how to get to that
location. She replied: “I didn’t really know.” Joanna continued: “I didn’t really
know, but . . . since I had found Debbie’s clothes approximately, I don’t know, a
few miles around that area, I assumed that it was in the same area. And I was
looking for the road.” When asked how she knew to get to the Sly Park area,
Joanna replied: “Ah, I had found Debbie’s clothes in that . . . in a similar area.
I’m not sure if it’s the same road but called Camp Creek which is up Sly Park,
same area.”
Later, Joanna was asked if it was just a coincidence that she began crying
when they reached the scene of the murder. Joanna replied: “I have no idea how I
did that, I have no idea.” In fact, Joanna claimed she learned the location of the
body was on Ferrari Mill Road, “Not long before they . . . they had taken me out
there. I, in fact, maybe it had been the day before.”
2. Joanna’s 1994 Reference Hearing Testimony
a. Direct Examination by Petitioner
On direct examination at the reference hearing, Joanna made several claims
that were inconsistent with the 1985 trial evidence, her 1985 trial testimony, and
her 1992 recantation.
Joanna testified that she did not recall seeing Placerville Police Officer
Phillip Dannaker upon her return to Placerville on October 30, 1984, and said she
spoke to Fay Harnage “about a week or a week and a half” after her return and not,
as she had testified at trial, on the day of her return.
Joanna testified that she was concerned when the El Dorado County
Sheriff’s deputies wanted her to take them to where she claimed Denise was
murdered because they would find out she was lying. But she had read in the
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paper that Ferrari Mill Road was where the bodies were found and she knew
“probably where it was, knowing it was past the second dam and knowing where
I’d found Debbie’s clothes, that it was probably nearby.”
Joanna claimed she had specific knowledge of Ferrari Mill Road because of
two newspaper articles in the Mountain Democrat, dated August 13 and 22, 1984,
that mentioned where the girls’ skeletons were found. Specifically, the August 13
article stated that female skeletons were found “within three quarters of a mile of
each other off Ferrari Mill Road, which runs off Mormon Emigrant Trail (Iron
Mountain Road) near the second dam and Jenkinson Lake.” The August 22 article
stated that dental charts “determined that skeletal remains found off Ferrari Mill
Road Aug[ust] 4” were those of Lynda and Denise. Joanna claimed she was
familiar with that area because “[t]hat was the area near where [Debbie’s] clothes
were found.” When the referee pointed out to Joanna that the area where Debbie’s
clothes were found was several (actually 12) miles away from where Denise’s
body was located, Joanna hesitantly replied: “Well, it was still—it was several
miles, but it was near comparative to it being out in the country out there.” She
claimed not to have the “faintest idea” where the bodies were found on Ferrari
Mill Road itself.
Joanna asserted that, contrary to her trial testimony, petitioner never
requested anal intercourse from her. She stated that, contrary to her trial
testimony, Joe never gave her a ride off the mountain, but that Joe was a real
person by the name of Joe Shamblin. Joanna stated that when Sergeant Wilson,
prior to petitioner’s jury trial in 1984, told her “they thought they had found Joe,”
she lied to Sergeant Wilson and told him that that was the wrong Joe because the
Joe who had given her a ride had moved to Reno, Nevada.
Joanna testified that on June 22, 1985, during trial, Sergeant Wilson,
without warning, told her they needed to go to the murder scene. Once they got to
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Four Corners, Wilson told Joanna to take him to the murder location. Joanna
knew the first two roads she directed Wilson to drive on were incorrect simply
because Wilson was “very agitated.” As she knew there was only one road left,
Joanna said she lied when she said, “I knew this was the road all along.” She
knew where to stop on this road because Wilson “was silent the whole time on this
road, but he just was completely silent,” so she knew she must be near the right
place. She said she was lying when she pointed out to Wilson different areas
where she did things and where she saw things the night of the murder.
Joanna testified that she lied in 1990 when she signed the declaration
stating that her trial testimony was true. She claimed, however, that her 1992
recantation was truthful.
b. Cross-examination by the People
Joanna testified that, for a period of a week or two weeks after she found
Debbie’s clothes, she checked the Mountain Democrat newspaper for articles on
petitioner’s case and learned about Ferrari Mill Road from two articles, dated
August 13 and 22, 1984. She agreed neither article gave directions to Ferrari Mill
Road. Joanna volunteered that the only reason she was able to find Ferrari Mill
Road was because she saw a road sign. She said she had never noticed the road
before November 1984. Once on Ferrari Mill Road, she “guessed” which
direction to go when the road forked before they reached Four Corners.
Joanna claimed her clothes were not soiled or dirty at any time when she
was with Bruce Nesthus. She claimed she never told Fay Harnage “I was there.”
Nor was she hysterical when she told her story to Fay Harnage; she was just
“talking” about the case to her. She agreed, however, that Fay Harnage was a
complete stranger and she met her by accident. Joanna also said she lied when she
said she recognized the tree stump with the yellow markings.
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Joanna was reminded that in her 1992 recantation statement, she had
acknowledged that after telling Darlene that she found Debbie’s clothes, Darlene
replied that she and petitioner had just been to Camp Creek, even though Joanna
had not mentioned that Camp Creek was where she found the clothes. Joanna was
then confronted with her reference hearing testimony that she did tell Darlene she
found the clothes at Camp Creek, and Darlene “gasp[ed]” because she and
petitioner had just been there. Joanna said she could not recall which version was
truthful.
Joanna said she did not recall telling Officer Dannaker on August 12, 1984
that she had been drinking with Denise, that she had walked with Denise to the
Locust Street underpass, had watched Denise walk through the underpass towards
the foster home and, at that same time, had seen petitioner drop off Darlene at the
foster home. (See People v. Cox, supra, ___ Cal.4th at p. __, fn. 2 [p. 5, fn. 2].)
Joanna agreed, however, that if she made that statement to Officer Dannaker, she
would have been telling him the truth.
B. Darlene
1. Darlene’s Posttrial Statements
a. 1988
Statement
In February 1988, Kevin S., Darlene’s brother, signed a declaration in
which he claimed that in the summer of 1984, Darlene told him she witnessed the
murder of one of the girls and her job was to “fold clothes and clean up” after the
murder. In 1988, Sallie Sanders executed a similar declaration, wherein she
claimed that in 1984 Darlene told her she witnessed a murder.
In response, Darlene executed her own declaration on April 15, 1988, in
which she said that in 1984 she was having a very hard time with her feelings
about petitioner because she believed he killed the three girls. That summer, she
found a skirt in petitioner’s trunk that looked like it belonged to Denise or Debbie.
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There were stains on it that could have been blood. Petitioner denied the clothes
belonged to Denise or Debbie and denied that the stains were blood. Darlene said
that the only clothing she ever handled or folded was the clothing she found in the
trunk, and she was not present when any of the girls were killed, nor did she ever
tell anyone that she witnessed any such event.
b. Defense Investigator Tactics
On October 23, 1990, Tom Elliot and Marilyn Mobert, investigators for the
State Public Defender, made a “cold call” on Darlene at her residence in Rancho
Cordova. At the reference hearing, Mobert testified that her assignment was to
acquire any information that would cast doubt on the trial testimony of Joanna and
Darlene. Mobert stated that this was the first time she met Darlene. She added
that she had reviewed Darlene’s April 15, 1988, declaration prior to the interview.
During the interview, Darlene told the investigators, in essence, that the 1984
murders were part of a satanic cult ritual. One week later, on October 30, 1990,
Mobert returned to Darlene’s residence. She brought a tape recorder and a six-
page declaration prepared by a defense attorney that memorialized the October 23
interview. Darlene signed the declaration prior to the tape-recorded interview.
In the declaration, Darlene claimed that in August 1984, she told the trial
prosecutor, Ron Tepper, that she was with petitioner at a campsite on North South
Road the night Debbie disappeared. Darlene claimed that petitioner drugged her,
tied her arms and legs and put her in the backseat of his car. Joanna and Debbie
were in the front seat and they drove into the woods. Joanna pulled Debbie from
the car and orally copulated her. Debbie was secured to an altar and nine men had
sex with her. Afterwards, petitioner asked Joanna for a knife. He cut open
Debbie’s stomach, pulled out a fetus, and the members of the group ate the fetus.
Petitioner cut Debbie’s throat and all members of the group drank her blood.
Darlene said she passed out and woke the next day. Three days later she “lost
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control” of herself and eventually was sent to a psychiatric unit. She added that all
three girls were pregnant when killed, and all three were killed as sacrifices in
satanic rituals. Joanna was the “bait” to get the girls into the car. Darlene said she
married petitioner in September 1984 so she would not be the next sacrifice.
Darlene claimed petitioner threatened to kill her the day before he was arrested,
but she ran away from him. Darlene claimed she lied at trial, with Ron Tepper’s
permission, in order to protect her family.
Mobert testified that she met with Darlene again on November 9, 1990 to
“do some clean-up type questions.” Her next visit with Darlene, she said, was in
Reno, Nevada, on April 1, 1993. Mobert stated that she was accompanied by a
defense attorney and their visit was unannounced. During this interview, Darlene
told Mobert that the satanic story was “more than likely a dream” and now she
wanted to tell the “truth,” that petitioner was not responsible for the murders.
Mobert acknowledged that Darlene had a low IQ and was susceptible to
suggestion.
On December 21, 1993, Mobert, accompanied by a defense attorney,
interviewed Darlene regarding Darlene’s claim that petitioner did not commit the
murders. Mobert denied discussing the subject of immunity with Darlene during
this interview. Darlene, however, did mention that she was afraid she would lose
custody of her children if she testified at the reference hearing that petitioner did
not commit the murders.
Mobert was recalled to the witness stand the following day. She testified
that she now remembered that the subject of immunity for Darlene arose at the
December 21, 1993 interview. Mobert added that the subject of immunity was
also raised by Darlene during an April 1992 interview that took place in
Placerville. Mobert added that on a date after December 21, 1993, she was taking
Darlene and Mark Wilson (Darlene’s husband at the time) back to Reno after a
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trial preparation session, and Mark Wilson informed Mobert that Darlene would
not testify unless she received a grant of immunity. Prior to testifying at the
reference hearing, Darlene received immunity from the El Dorado District
Attorney’s Office for any false testimony she might have given at petitioner’s
preliminary hearing and jury trial. At the reference hearing, Darlene recanted
significant portions of her trial testimony.
2. Darlene’s Pretrial Statements
On November 9, 1984, and on December 4, 1984, Darlene spoke to El
Dorado County Sheriff’s deputies Sergeant Wilson and Detective Harnage. The
interviews were tape-recorded. Transcripts of three tape recordings from the
November 9, 1984, interview and the transcript from the one tape recording of the
December 4, 1984, interview were admitted into evidence at the reference hearing.
These tapes and transcripts had not been introduced into evidence at the 1985 jury
trial.
a. November 9, 1984 – First Tape
Present during this interview were Darlene, El Dorado Sheriff’s deputies
Sergeant Wilson and Detective Harnage, and Darlene’s mother and stepfather,
Shirley and Gerald W. Darlene said that the night Denise disappeared, petitioner
dropped her off at the foster home about 11 p.m. Joanna came home the next day
and said she had seen Denise walking through the tunnel the previous night. She
said petitioner never talked to her about Denise, except for one comment shortly
after Denise’s disappearance. Darlene told petitioner that Denise was gone, and he
replied that Denise knew better than to spend time with Joanna.
Sergeant Wilson pressed Darlene for more information and promised to
protect her. Darlene said she was “petrified” of petitioner and that he had married
her so she would not talk to “the police.” The sheriff’s deputies told Darlene that
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petitioner was the last person to see Lynda and Denise alive. Darlene stated that
petitioner knew Lynda and her parents.
b. November 9, 198 – Second Tape
Joanna was present during this second taped interview. Sergeant Wilson
informed Darlene that Joanna had given them a “whole lot” of information and
Joanna was going to tell her what she saw. Joanna asked Darlene why she said to
her, the night of August 12, that “it was gonna all be over, and [petitioner] would
be arrested.” Darlene replied that she didn’t know why she said that.
Sergeant Wilson asked Joanna to tell Darlene what happened after
petitioner took Darlene home the night Denise disappeared. Joanna said she was
not able to tell Darlene because she did not want to upset her. Wilson then told
Darlene that Joanna saw what petitioner had done to Denise. Darlene said she
didn’t know anything. When her mother pressed her for information, Darlene
replied, “I don’t know nothin’, Mom. I swear to God – I didn’t know nothin’ –
[petitioner] wouldn’t tell me. I tried to get it out of him. He would – he would
just jump on my case . . . if I talk[ed] about Debbie and Denise.” Darlene said that
on August 12, she led Placerville police officers to where she thought the bodies
were because she and petitioner camped in that area and she “had the feeling he
did it.” (See People v. Cox, supra, ___ Cal.4th at pp. ___-___ [pp. 20-21].)
Darlene agreed she had said, “[petitioner] did it.”
Sergeant Wilson told Darlene that petitioner could not be arrested until she
told them something. Her mother asked Darlene how many more 13- and 14-year-
old girls would have to be buried before petitioner was “put away.” Detective
Harnage and her mother told Darlene that petitioner was “sick” and Darlene, by
cooperating, could “help” him.
Sergeant Wilson praised Joanna for coming forward and told Darlene that
Joanna looked “so good” because they had helped her. He wanted Darlene to be
16
protected in the same way they protected Joanna. He explained that Darlene, like
Joanna, was entitled to witness funds, and that she could use the money to buy
herself clothes or get her hair done. Sergeant Wilson reiterated that it was not safe
for Darlene because people in town were “after” petitioner. Joanna stated that she
and others talked about beating up petitioner on Halloween. Darlene said
petitioner had more guns again and, if bothered, the police would have to bring out
the SWAT team.
Detective Harnage reiterated that Darlene was the “last piece to the jigsaw
puzzle.” Sergeant Wilson explained that, like Joanna, maybe Darlene “knew
something but didn’t want to remember it.” When asked why she told people at
the foster home that Debbie was not coming home, Darlene said, “I had a feeling
there was something goin’ on,” because she had “never seen [petitioner] act so
funny before.” Sergeant Wilson continued to insist that petitioner must have told
her “something.” She said he did not.
c. November 9, 1984 – Third Tape
With Joanna no longer present, Sergeant Wilson informed Darlene that
“[y]our mom told us what you told her,” but said they wanted to hear the
information from Darlene herself. Darlene agreed that petitioner knew Lynda, and
that he kept guns and knives in his car. Darlene added that a week or two before
any of the girls were missing, petitioner said he would “eliminate . . . three girls in
the foster home and eliminate three more.” Darlene said he never brought up that
topic again. Darlene stated that petitioner kept one gun under a quilt in the back of
his car, another gun under his seat, a knife above the sun visor on the passenger
side, and handcuffs underneath the quilt. Petitioner told her “Debbie was next or
some way he put it,” and that was “[a]fter the two ones have missed, have gone.”
She told the deputies that she was afraid of petitioner and had nothing more to add.
17
d. December 4, 1984 Taped Interview
On December 4, 1984, El Dorado County Sheriff’s deputies Sergeant
Wilson and Detective Harnage again interviewed Darlene. Darlene’s stepfather
was present. Sergeant Wilson asked Darlene if she recalled “everything that I told
you at the house today about what could happen, and, things like that” and offered
her immunity from prosecution, adding: “So, don’t be scared about going to jail,
because I don’t think that you have done anything that you can go to jail for, but
we wanna — we have to make sure.” Sergeant Wilson then asked, “Why don’t
you tell everything that you know about Denise?”
Darlene informed them that petitioner, at the Exxon station, had indeed
admitted that he killed Denise and that he intended to kill Joanna but she ran away.
Darlene said this conversation took place “[b]efore he got a hold of Debbie” but,
when prompted, agreed it occurred a day after Debbie disappeared. Darlene said
he picked up Denise and Joanna to go to a party but instead took them to the
woods. He said he grabbed Denise, stabbed her and strangled her, took off her
clothes, and laid her body by a log.
Darlene stated that petitioner picked up Lynda, told her he was going to
take her to a party, “and pretty soon he takes her to North South Road, where
Denise is, and he says he did the same thing as to Denise. Took all her clothes off,
and everything and threw them away, and they were both in the same places as
Debbie and Denise.” Petitioner said he left Lynda’s body close to Denise.
Darlene added that petitioner first said he took off Denise and Lynda’s clothes,
handcuffed them, tied their feet with his hiking rope, had sex with them while they
were alive and then stabbed them. She said petitioner learned to tie “weird knots”
in the Cub Scouts.
Petitioner told Darlene he was paid $150 to kill Denise and Debbie, and
was paid $120 to kill Lynda. Darlene said petitioner told her “he seen [Debbie] at
18
the park and he was waiting for her to get done with the party and he seen her
walking, so he pulled up, asked her [if she wanted] a ride up to the house and he
took her up to the . . . same place.” Petitioner added that he picked up Debbie
after he dropped off Darlene, and he put Debbie’s body “somewhere further away”
from Lynda and Denise. He told her he threw Debbie’s clothes off the bridge.
She said petitioner married her so she could not testify against him and he would
“get [her]” if she testified against him. She said she was too scared to have told
the deputies this earlier.
Sergeant Wilson asked Darlene if it worried her when he said she could be
arrested if she withheld information. She replied yes. Sergeant Wilson told
Darlene the threat of arrest “[m]ade you start thinking about it.” He added that she
didn’t do anything wrong, but if she had done something wrong, “that would be
different,” and they would have to talk about immunity.
Darlene said petitioner told her he brandished a knife to get Denise and
Joanna in his car. She then backtracked and said Denise made Joanna get in the
car. She said that petitioner had “contracts” on many girls, including Joanna.
Shirley W. arrived. She confirmed that petitioner had ended his
relationship with Darlene on November 7, 1984. Darlene stated that petitioner
finally told her about the murders because “he already had a contract on me.”
When asked why he wanted these girls dead, Darlene said that petitioner told her
“if you have to kill these people . . . the devil will not take their soul.” She said
that petitioner believed in devil worship.
Darlene, contrary to her earlier statement, now said petitioner put Lynda’s
body close to Debbie’s and Darlene’s bodies, “[b]y a log.” She said petitioner
never mentioned Ferrari Mill Road. She said she found Debbie’s unicorn
keychain underneath the front seat of petitioner’s car while they were cleaning the
car after Debbie’s murder. Petitioner said, “now you know,” and that is when he
19
decided to tell her everything. Darlene said petitioner told her to put the keychain
back among Debbie’s belongings at the foster home and “be quiet about it.” The
sheriff’s deputies later found the keychain among Debbie’s belongings. It had no
keys on it.
3. Darlene’s 1994 Reference Hearing Testimony
a. Direct Examination by Petitioner
As noted, Darlene testified under a grant of immunity for any perjury she
may have committed at petitioner’s preliminary hearing and jury trial. She
recanted most of her trial testimony. She said that petitioner never told her “three
would be eliminated” from the foster home “and three more.” On the night of
Denise’s disappearance, petitioner was cleaning his gun and sharpening his knife
and said he had to “take care of business,” but that phrase referred to a poker
game, as he sometimes gambled for weapons instead of money. “Taking care of
business,” she emphasized, did not mean petitioner was going to kill anyone.
As to the night of Debbie’s murder, Darlene now said that petitioner did not
pull a knife from his car’s visor and say he had to take care of business. Darlene
said she did find Debbie’s unicorn keychain in petitioner’s car, but that incident
occurred before Debbie was murdered, not a day or two after Debbie’s
disappearance. She said she made up the keychain story because it linked Debbie
to petitioner’s car. She said petitioner did not confess his crimes to her at the
Exxon station, and never told her at any time that he murdered the three girls.
After petitioner moved out of the residence he shared with Darlene in early
November 1984, Darlene had one contact with sheriff’s deputies that took place at
the Placerville Police Department. She said she kept repeating that she didn’t
know anything, but everyone refused to accept her answers. It made her “very
upset” that they were “accusing [petitioner] of something he didn’t do.” Joanna
told her that she, Joanna, saw petitioner kill Denise. Darlene said everyone told
20
her she was next and offered her protection. The sheriff’s deputies informed her
that Joanna was in “witness protection.” Darlene said she believed she would
have to tell them about petitioner to get the same help.
Darlene stated that after the November 1984 interview, the sheriff’s
deputies would “not leave [her] alone.” Her parents told her she would wind up in
prison. The sheriff’s deputies accused her of being part of a conspiracy. Finally,
in December 1984, she gave a statement implicating petitioner because she wanted
them “to get out of my face.” All of the details she provided about the murders
from the December 4 interview she had learned from the detectives, Joanna, or the
newspaper. The sheriff’s deputies stopped harassing her after she told them of
petitioner’s confession.
b. Cross-examination by the People
Darlene said she loved petitioner when she testified at the jury trial, and
denied he had left her for another woman in November of 1984. She said
petitioner was innocent and she was pressured into lying. She denied camping
with petitioner on North South Road. But when confronted with her trial
statement that she camped on North South Road with petitioner five, six, or seven
times, she admitted that was true. She admitted seeing a knife, guns and handcuffs
in petitioner’s car.
Darlene claimed she did not know what time petitioner took her home the
night Denise was murdered. That night, after petitioner dropped her off at the
foster home, she smoked a cigarette on the hill and saw Joanna wave down
petitioner and talk to him. Darlene said that Joanna never got in his car. She said
that she did not see Denise at that time.
Darlene said that petitioner never said he knew Lynda’s parents. When
confronted with her contrary jury trial testimony, Darlene said she was referring
21
not to petitioner, but to her stepfather, because he knew Lynda’s parents. She said
her stepfather asked her to lie about this incident.
Darlene agreed she was at Benham Park with petitioner the night Debbie
disappeared. She saw Debbie drinking in the park. Darlene left the car and went
to use the bathroom. Petitioner did not stay in the car, but was sitting on a picnic
bench when she returned. At the jury trial she said he did stay in the car. She
explained this inconsistency: “Yes. He was sitting in the car because we were
getting everything — we went and was sitting on the picnic bench.” At the jury
trial, she made up the story about petitioner pulling a knife from his visor and
saying “this is a good night for business.” When asked “where did that detail
come from,” she replied, “From the top of my head.” When asked “what was the
purpose of it,” she said, “I have no idea.”
Darlene stated that, on August 12, 1984, Placerville police officers not only
took her to the area where she and petitioner camped (Camp Creek) to find
Debbie’s body, but “[t]hey [also] took me on Ferrari Mill Road showing me
[possibly] where Debbie and Denise were at.” When asked why she testified at
the jury trial that she had never been on Ferrari Mill Road, Darlene said she was
“afraid” to admit this fact at trial.
Darlene confirmed her preliminary hearing testimony that petitioner had
scratches on his face and chest in June or July 1984, which was around the time
Lynda was murdered. The scratches looked like fingernail scratches, and the
scratch on petitioner’s chest was long and deep.1 She added: “But it doesn’t
explain why he got the scratches.”
1
At the preliminary hearing, Darlene testified that she observed long
fingernail scratches on petitioner’s face and chest at the very end of June or early
July 1984. Linda Crespin also noticed a scratch on petitioner, severe enough to
require medicine, the day after Lynda disappeared.
22
Darlene claimed she lied at trial because she was threatened by her mother
and stepfather, was threatened by the El Dorado County Sheriff’s deputies when
the tape recorder was turned off, was interrogated for 10-12 hours in a little room,
and was not allowed to go to the bathroom. She also claimed she was escorted to
the bathroom by a female sheriff’s deputy because they “didn’t want [her] running
off.” Sergeant Wilson later testified that Darlene was never denied a bathroom
break and the interview took three to four hours to complete.
Darlene explained that her remark to sheriff’s deputies, on the second
November 9 tape, that after Debbie’s disappearance she had “never seen
[petitioner] act so funny before,” meant only that petitioner was acting “funny” in
a humorous way.
Darlene agreed that she said to Sergeant Wilson, on the second November 9
tape, that petitioner told her three girls would be eliminated from the foster home
and then three more, but she claimed she never actually heard petitioner make that
remark, and offered five versions: First, she said she heard it from Sergeant
Wilson. Then she said she heard it from Joanna. Then she said Joanna had heard
it from Sergeant Wilson. Then she said her mother specifically told her to lie and
say that she, Darlene, heard petitioner say it. She also stated that the “number one
reason” she told that lie at trial was because Sergeant Wilson told her to say it.
Darlene testified that her stepfather told her to say that petitioner had
sharpened his knife the night Denise was murdered, and her stepfather also
encouraged her to make up “story lines after story lines, just like writing a book.”
She claimed she lied at trial because of threats from her parents and the sheriff’s
deputies. When the tape recorder was on, she said, they would tell her she was not
a suspect, but when they turned it off, they would say the opposite. She said she
was booked and fingerprinted sometime in November 1984. Sergeant Wilson later
acknowledged that Darlene was photographed and fingerprinted in accordance
23
with “department policy” even though she was not a suspect. He added that she
was not booked. Darlene admitted she was never put in any locked facility.
Darlene denied ever telling Barbara Rugg that she “was afraid petitioner
would find out she talked to the police,” and that “it’s all going to be over with,
[petitioner’s] going to be arrested.” She denied telling Placerville Police Officer
Dannaker that she had visions of the girls being murdered. She denied telling her
mother that she did not kill Debbie, petitioner killed Debbie. She claimed
petitioner kept handcuffs in his car because someone once broke into his car, and
if somebody broke into his car again petitioner was going to handcuff them to the
door of his car.
Darlene claimed that the statement in her 1988 declaration, that her parents
never forced her to say anything, was a lie because she was “still in fear of [her]
parents,” even though they lived in a different state. She thought her mother
would put her in prison by making up a story that she was involved in the killings,
but then she stated she was on good terms with her mother throughout this period.
Darlene stated that the death of her stepfather in August 1992 prompted her to
come forward because while he was alive, she feared what he would do if she
recanted. His death, she said, took away that fear.
Darlene acknowledged that, on October 23, 1990, she spoke to State Public
Defender investigators Thomas Elliot and Marilyn Mobert about petitioner’s
involvement in the murders. She said she gave them false information because she
“was too afraid to talk.” When asked why, if she was too afraid to talk, she said
anything, Darlene replied, “I have no reason.” Darlene stated that petitioner was
never involved in the occult or satanism. She added that in 1990, she thought her
satanic version of events actually had happened. However, a few days after she
signed the October 30, 1990 declaration, Darlene realized she had made a mistake
24
because “This [version] was never true. This was a dream. This was a
nightmare.”
C. Kathy Erbe
At the 1994 reference hearing, Kathy Erbe testified that prior to trial, she
had several meetings with the Crespins. She said Linda Crespin told her that (1)
petitioner did not commit the murders and was being framed; (2) it was a cult
murder; and (3) it was a Charles Manson-type murder and petitioner was the
leader, but he had not done the actual killings. Kathy Erbe also stated that Joe
Crespin had told her husband, Steven Erbe, that the girls had been offered as
sacrifices on an altar and were cut from their throats to their vaginal areas.
Erbe also said that Linda Crespin believed a person named Kip Miller was
involved in the murders, and that she (Erbe) passed the information along to Sonia
Miller, Kip’s mother. Erbe stated that she gave all of this information to trial
prosecutor Ron Tepper and district attorney investigator Ernie Birtwell. She
claimed that Tepper told her he was not interested.
D. Linda Crespin
In 1988, Linda Crespin executed a declaration that refuted Kathy Erbe’s
statements. She stated that she told Erbe that she was distressed and that the
killings were like a serial killing or something like a Manson killing, but she never
stated that petitioner was the leader of, or that he had any involvement in, a cult.
She said that petitioner told her he was being framed, not that she believed he was
being framed. Crespin stated that Erbe brought up the subject of Kip Miller and
that she (Crespin) did not know Kip Miller nor any facts about his involvement.
She added that she never told Erbe any details about the case. Crespin reaffirmed
that her trial testimony was true, and the only item she wondered about was
whether petitioner actually said the word “eliminate.”
25
At the 1994 reference hearing, Crespin affirmed the substance of her 1988
declaration. She added that she now believed that petitioner did not use the word
“eliminate” in 1984, but instead said something to the effect that girls like Lynda
should be “done away [with]” or “pass[ed] off” or “avoided.” She told the referee
that she did not know the exact word.
IV. DISCUSSION
A. Standard of Review
“ ‘A habeas corpus petitioner bears the burden of establishing that the
judgment under which he or she is restrained is invalid. [Citation.] To do so, he
or she must prove, by a preponderance of evidence, facts that establish a basis for
relief on habeas corpus. [Citation.]’ ” (In re Cudjo (1999) 20 Cal.4th 673, 687,
quoting In re Visciotti (1996) 14 Cal.4th 325, 351.)
“ ‘The referee’s findings of fact, though not binding on the court, are given
great weight when supported by substantial evidence.’ ” (In re Hitchings (1993) 6
Cal.4th 97, 109.) “Deference to the referee is particularly appropriate on issues
requiring resolution of testimonial conflicts and assessment of witnesses’
credibility, because the referee has the opportunity to observe the witnesses’
demeanor and manner of testifying. [Citations.] On the other hand, any
conclusions of law or resolution of mixed questions of fact and law that the referee
provides are subject to our independent review. [Citation.]” (In re Hamilton,
supra, 20 Cal.4th at pp. 296-297, fn. omitted.)2
2
Throughout his report, the referee took judicial notice of portions of the
trial transcript. The referee believed that it was impossible to judge the credibility
of witnesses who testified 10 years after a jury trial without referring to the
evidence introduced at that trial. Petitioner argues that it was improper to utilize
the trial transcript in this manner. We disagree. The consideration of the former
testimony of any witness at the reference hearing is permitted under Evidence
Code sections 769, 770, 780, subdivisions (g), (h) and (i), 791, 1235, and 1236
(fn. continued on next page)
26
B. The Referee’s Findings: Joanna
Petitioner contends Joanna’s trial testimony that she witnessed the killing of
Denise was false. For the reasons stated below, we adopt the referee’s finding to
the contrary.
It has long been settled that “the offer of a witness, after trial, to retract
[her] sworn testimony is to be viewed with suspicion.” (In re Webber (1974) 11
Cal.3d 703, 722; see also In re Roberts (2003) 29 Cal.4th 726, 743.) This
principle is especially true here, as Joanna affirmed her trial testimony in 1990;
and after she was granted immunity, she made several assertions in her 1992
recantation that were materially inconsistent and contrary to assertions she made
in her 1994 reference hearing testimony.
In addition, the referee listened to tapes and read transcripts of Joanna’s
prior statements and testimony. He visited the crime scenes. He also had the
benefit of gauging Joanna’s credibility, as well as the credibility of the other
reference hearing witnesses whose testimony bore on the credibility of Joanna,
based on his observation of their demeanor and manner of testifying. In support of
his finding that Joanna witnessed the murder of Denise, the referee made the
(fn. continued from previous page)
(prior consistent and inconsistent statements). Moreover, both sides pointed out
that the referee would have to consider the trial testimony to review the factual
evidence presented, and for the purpose of making a materiality finding. As we
stated in In re Malone (1996) 12 Cal.4th 935, 946: “In reaching his findings the
referee necessarily compared and weighed this live testimony together with the
written exhibits. We have no reason to doubt the witnesses’ demeanor and manner
of testifying played a role in the referee’s resolution of many of the questions
posed.” (Italics added.) On the other hand, in those situations in which the referee
took judicial notice of the trial testimony of a witness who did not testify at the
reference hearing, we will independently review that witness’s trial testimony.
(Cf. In re Marquez (1992) 1 Cal.4th 584, 604 [court is not bound by referee
recommendation concerning evidence not presented at habeas corpus hearing].)
27
following findings, which we accept as true because they are based on the
referee’s credibility assessments and are supported by substantial evidence:
1. Defense
Investigator
Marilyn Mobert’s Role
The referee found that State Public Investigator Marilyn Mobert scared
Joanna into recanting her trial testimony by discussing perjury, prison, and loss of
custody of her children. Her “technique,” stated the referee, “consists not so much
[of] the finding of evidence but as creating it by threatening witnesses, scaring
witnesses, putting words in the mouths of witnesses, preparing false reports and
testifying falsely in court.” As the referee pointed out, Joanna never discussed
recanting her testimony nor took any steps towards that end for six years after the
trial. In 1990, she executed a declaration affirming her trial testimony. However,
immediately after her September 1990 meeting with Mobert, Joanna phoned
Sergeant Wilson in tears and in a panic and later, in January 1992, recanted.
Because the referee’s factual findings are supported by the evidence, we accept
them as true.3
2. Statement to Fay Harnage
Fay Harnage testified at the reference hearing that, on October 30, 1984, the
day after Joanna returned to Placerville, she picked up Joanna by the side of the
roadway in front of her house to give her a ride. They had never met before.
3
Petitioner claims that the referee was biased against him based on the
referee’s finding that Mobert scared Joanna into recanting. Because we have
determined that this finding is supported by substantial evidence, we reject
petitioner’s claim of bias. Petitioner also asks that we incorporate into the record
the complete document entitled “Petitioner’s Corrections to Referee’s Intended
Decision — Marilyn Mobert Appendix,” in the mistaken belief that the court did
not possess the complete document. As the record before us contains both the
complete and incomplete versions of this document, petitioner’s request is denied
as moot.
28
Joanna was upset and emotional. She said she knew something about the murders
of the three girls, and was afraid that petitioner would kill her. Fay testified that
Joanna was so distraught, she thought Joanna might jump out of her car. Joanna
told Fay, “I was there,” but it was “too terrible” to talk about. The referee found
that Fay Harnage was credible. He rejected Joanna’s 1994 testimony that she was
not hysterical or excited when she spoke to Fay Harnage. We accept this finding
as true.
3. Joanna’s Asserted Memory Loss
Joanna stated, during her 1992 recantation, that she had no recollection of
the events of June 12, 1984, from the time of the incident in which a cement block
was thrown through the windshield of a patrol car in downtown Placerville until
meeting Bruce Nesthus, and that the time-frame of this memory loss was an “hour
or so.” But the cement block incident took place between 9:10 and 9:30 p.m. on
June 12, and Joanna met Nesthus in Placerville at approximately 3:30 a.m. on June
13. The referee therefore rejected Joanna’s claim that her memory loss was an
“hour or so.”
The referee also rejected the claim that Joanna had no recollection of the
events of June 12 after the cement-block incident because on August 12, 1984,
Joanna admitted to Placerville Police Officer Dannaker that she was with Denise
on June 12, saw her walk under the overpass towards the foster home, and that she
saw petitioner drop off Darlene as Denise walked towards the foster home. We
accept these findings as true.
4. Joanna’s Clothing at 3:30 a.m.
At the 1994 reference hearing, Bruce Nesthus testified that Joanna’s
clothing was “neat” when he saw her at the Stancil’s Toyota dealership in
Placerville between 10 p.m. and midnight. However, Nesthus testified that when
he saw Joanna later, at 3:30 a.m., her clothing was “soiled and dirty,” “like you’d
29
be on a tractor in a field and get dusty, but not caked on mud or anything like
that.” At the reference hearing, Joanna claimed her clothes were clean at this later
time. The referee found that Nesthus was a “neutral and reliable witness” and
accepted Nesthus’s testimony as true. We accept the referee’s finding.
5. Finding Ferrari Mill Road
a. The Newspaper Articles
On January 16, 1992, Joanna stated that she knew how to get to the murder
scene because “somehow” she knew “it was off of Ferrari Mill Road.” She wasn’t
sure if she read that in the paper or somebody told her. But she claimed that she
learned it was Ferrari Mill Road “maybe . . . the day before” the deputy sheriffs
took her to the location. She claimed she didn’t know how to get to Ferrari Mill
Road, but assumed it was in the “same area” in which she found the clothes.
At the 1994 reference hearing, Joanna’s testimony changed dramatically.
Joanna claimed to have specific knowledge of Ferrari Mill Road from two
newspaper articles, dated August 13 and 22, 1984. While she claimed she had
never noticed the road before November 1984, she said she was familiar with the
area because it was “near where the clothes were found.” She claimed not to have
“the faintest idea” where the bodies were found on Ferrari Mill Road itself. Once
at the “Y” (the fork in the road before Four Corners), she said that she correctly
“guessed” which direction to go.
The referee found that Joanna lied in both 1992 and 1994. As the referee
pointed out, Camp Creek, where Joanna found the clothes, was 12 miles from
Ferrari Mill Road, so Joanna’s “assumption” that she found Ferrari Mill Road
because it was in the “same area” as Camp Creek was disingenuous.
Moreover, Joanna’s two statements are suspect because of their material
inconsistencies. In the 1992 recantation interview, Joanna claimed that she
learned of Ferrari Mill Road from the paper (or somebody told her) perhaps “one
30
day” before her November 1984 trip with the sheriff’s deputies. At the 1994
reference hearing, however, she claimed she knew of Ferrari Mill Road from two
newspapers articles she read on August 13 and 22, 1984 — more than two months
before the trip. Finally, Sergeant Wilson testified at the 1985 jury trial that Joanna
told him she did not read any newspaper articles about the case. The referee found
that Joanna did not read the newspaper articles until after her 1992 recantation.
We accept this finding as true.
b. The Ferrari Mill Road Sign
Joanna stated at the 1994 reference hearing that but for the Ferrari Mill
Road sign, she would have never found the road. But Joanna never mentioned the
road sign during the January 16, 1992 interview, or on direct examination in 1994.
She only added this piece of information on cross-examination in 1994. The
referee rejected this testimony because it was contrary to the evidence.
Dr. Dougherty testified at the reference hearing that on the first night he,
Joanna, and El Dorado County Sheriff’s deputies, Sergeant Wilson and Detective
Harnage drove to the murder scene, Joanna was in the backseat, on the passenger
side. He sat next to her, in the middle of the backseat. Joanna, he said, did all the
directing. Dr. Dougherty said that Joanna “almost always looked out the right
window because you couldn’t see very well through [the] other — you had to be
close to the window to see through it. So she was looking straight out to her right
out the window as we passed different areas.” He described Ferrari Mill Road as
an unmarked dirt road, and when the vehicle reached that location, Joanna told
them to turn right. Dr. Dougherty did not recall seeing a sign on Ferrari Mill
Road. He said Ferrari Mill Road was “dark, maybe muddy, and we couldn’t see
out of the window very well.” The referee found that Dr. Dougherty was a
credible witness.
31
Sergeant Wilson provided the referee with additional details about the first
trip to the murder location. He explained that it was snowing heavily that night.
Once on Mormon Emigrant Trail, they passed several spur roads. As they
approached Ferrari Mill Road, Joanna became excited and told them to “slow
down.” Ferrari Mill Road was a T-intersection; there was no road to the left.
Joanna told them to turn right. But the street sign was on the opposite side of the
road, to their left. Sergeant Wilson did not recall seeing the sign as it was snowing
heavily. Ferrari Mill Road, he said, was a dirt road with snow on the ground. At
the “Y” fork on Ferrari Mill Road below Four Corners, Joanna said to go to the
right but after they had gone 150 yards, she said this was the wrong road. They
then proceeded up the left side of the “Y” fork. As they went up a hill with ruts in
it, Joanna said she remembered that hill. Past the top of the hill, they came to Four
Corners. Joanna told them to stop. The referee found that Sergeant Wilson was a
credible witness.
Based on the evidence that it was snowing, the visibility was poor, and
Joanna always looked to her right, the referee rejected Joanna’s claim, made for
the first time on cross-examination at the reference hearing, that she saw the
Ferrari Mill Road sign that was located on the opposite side of the road. Instead,
the referee determined that Joanna told the sheriff’s deputies to turn on Ferrari
Mill Road because she was there the night of the murder. We accept this finding
as true.
6. June 22, 1985 Trip
Sergeant Wilson testified at the reference hearing that on the June 22, 1985
trip, Joanna “described, as we left the [Four Corners] intersection, that we would
go over a small rise and drop down off this rise and it would level out, the road
would level out as we went down off the rise.” Wilson stated that that did happen.
He added: “Before we got to the [third] landing, actually, we went into a small
32
draw and she seemed like she was getting, for lack of a better word, excited. She
was scooting forward in the seat. [¶] She said, ‘slow down real slow here,’ when
we were in this turn. . . . kind of an S effect, and as we came around the top part of
the S, the road widened out into this landing. She got very excited and started
telling me to stop.” Sergeant Wilson stated that when he asked Joanna why she
wanted to stop, she replied: “ ‘That’s where [petitioner’s] car was parked the
night Denise was killed.’ ” This spot was, in fact, within 75 yards of the murder
scene.
The referee found this testimony to be true and probative of the fact that
Joanna witnessed Denise’s murder. The referee rejected Joanna’s reference
hearing testimony that she knew where to stop the car on the June 22 trip because
in observing Sergeant Wilson’s demeanor, he went from being “silent” to
“completely silent.” We accept this finding as true.
7. Joanna’s Ride to Placerville with Joe
At trial, Joanna testified that after she saw petitioner stab Denise, she ran
towards the road and got a ride back to Placerville with Joe. In her 1992
recantation, Joanna claimed that in 1987, she told Sergeant Wilson that she lied
about getting a ride back with Joe and instead, had ridden home with petitioner the
night of Denise’s murder. Sergeant Wilson, she said, informed her that this detail
was not significant. In both her 1992 recantation and her 1994 reference hearing
testimony, she maintained that Joe had not given her a ride back to Placerville that
evening.
At the 1994 reference hearing, the defense called Joe Shamblin to testify.
He stated that he knew Joanna, having met her at Happy Trails in 1983 or 1984.
Shamblin testified that he never picked up Joanna hitchhiking in the middle of the
night on Mormon Emigrant Trail. He also claimed he contacted law enforcement
prior to the original jury trial because his parents had seen a newspaper article in
33
which the police stated they were looking for a person named Joe that fit his
description. He said he thought he spoke to an officer named Bill.
Sergeant Wilson acknowledged that Detective Harnage had interviewed Joe
Shamblin prior to the original jury trial and, afterwards, that he (Sergeant Wilson)
informed Joanna that they might have found the Joe who gave her a ride home the
night Denise was murdered. But Joanna, he said, told him this was not the “right
Joe.” Joanna said that the person named Joe who gave her a ride had moved to
Nevada. Sergeant Wilson stated that he “still felt there was [another] Joe” who
gave Joanna a ride home. He testified that, to his recollection, no report of the Joe
Shamblin interview was prepared and the interview was never disclosed to the
defense.4
The referee found that the person named Joe that Joanna described to the
sheriff’s deputies was, in fact, Joe Shamblin, and that Joanna lied in this portion of
her trial testimony. The referee instead concluded that Joanna rode home with
petitioner. The referee believed that Joanna’s riding back to Placerville with
petitioner explained a great deal about Joanna’s behavior after Denise was
murdered, including her reluctance to come forward. We accept this finding as
true.
C. The Referee’s Findings: Darlene
As noted earlier, “the offer of a witness, after trial, to retract [her] sworn
testimony is to be viewed with suspicion.” (In re Webber, supra, 11 Cal.3d at p.
722.) As the court said in People v. McGaughran (1961) 197 Cal.App.2d 6, 17,
4
Detective Harnage, who was retired at the time, testified at the reference
hearing on March 1, 1994. He was not questioned regarding an interview with Joe
Shamblin. Detective Harnage was killed in an auto accident on April 8, 1994.
The trial prosecutor, Ron Tepper, also met an untimely death prior to the reference
hearing.
34
“It has been repeatedly held that where a witness who has testified at a trial makes
an affidavit that such testimony is false, little credence ordinarily can be placed in
the affidavit . . . .” (See also In re Roberts, supra, 29 Cal.4th at p. 742.) These
principles are especially apt here, as Darlene executed an affidavit in 1988 that
affirmed her trial testimony; executed a 1990 declaration that asserted the murders
were part of a satanic ritual but later recanted that statement; and then recanted her
trial testimony after she was granted immunity.
The referee carefully listened to Darlene’s November 9 and December 4,
1984 tape-recorded interviews and read transcripts of Darlene’s prior statements
and trial testimony. He viewed the exhibits and visited the crime scenes. He also
had the benefit of gauging Darlene’s credibility, as well as the credibility of the
other witnesses whose testimony bore on the truthfulness of Darlene’s statements.
“ ‘The referee’s findings of fact, though not binding on the court, are given great
weight when supported by substantial evidence.’ ” (In re Hitchings, supra, 6
Cal.4th at p. 109.)
1. Darlene’s 1994 Reference Hearing Testimony
At the 1994 reference hearing, Darlene recanted most, if not all, of her jury
trial testimony that incriminated petitioner. The referee gave little credence to
Darlene’s recantation because he found that her love for petitioner had revived,
“and by reason of her grant of immunity, she could say whatever she wanted to
about her trial testimony with impunity.” As such, the referee found she “lied
almost at random” at the reference hearing.
For example, the referee rejected Darlene’s explanation at the reference
hearing that she recanted because her stepfather died (and thus she no longer
feared retribution from him), given that she had not lived with him since 1984,
they lived in separate states, she saw him very seldom, she did not like him, and
she had had a close and loving relationship with her mother through 1993. As
35
such, the referee believed that Darlene would not be affected by her stepfather’s
disapproval. Moreover, Darlene did not recant for more than a year after her
stepfather’s death; had her fear of him been the reason for remaining silent, the
referee believed that Darlene would have recanted much sooner.
Instead, the referee believed that, like Joanna, Darlene recanted because of
the conduct of State Public Defender investigator Marilyn Mobert. He found that
Mobert initially lied to the court when she claimed the subject of immunity never
arose during her interviews with Darlene. He found that Mobert initiated the
subject of immunity and, through several visits and phone calls to Darlene from
1990 through 1993, manipulated Darlene into recanting by impressing upon her
that a grant of immunity would ameliorate any concerns she may have had about
losing custody of her children, and leading Darlene to believe immunity would
protect her from any adverse consequences stemming from her false 1990
declaration. We accept these findings, which are supported by substantial
evidence, as true.
2. Darlene’s 1985 Jury Trial Testimony
The referee made several findings regarding Darlene’s 1985 trial testimony:
(1) the referee found that petitioner did not confess to Darlene at the Exxon
station; instead, the “confession” was prompted by Sergeant Wilson’s statement to
Darlene, on December 4, 1984, that she would be arrested if she withheld
information; (2) the referee also found that Darlene did not find Debbie’s keychain
in petitioner’s vehicle that day; and (3) the referee found that Darlene did not see
petitioner pick up Denise and Joanna the night Denise was murdered.
But the referee also found that much of Darlene’s trial testimony
incriminating petitioner was true. The referee found true those portions of
Darlene’s testimony in which her account of the events was first given prior to
Sergeant Wilson’s December 4, 1984 threat of arrest, or where her testimony was
36
“100 percent corroborated” by physical evidence or witness testimony. As will be
shown below, we accept the referee’s findings as true because they are supported
by substantial evidence.
a. False Statements by Darlene
i. The
Confession
The December 4, 1984, taped interview revealed, and the referee found,
that the deputies threatened to arrest Darlene on that date. This threat, concluded
the referee, prompted Darlene to falsely state that petitioner confessed to her at the
Exxon station a day or two after Debbie disappeared. The referee based this
conclusion on the following factors: (1) prior to December 4, Darlene had
steadfastly maintained that petitioner had not confessed and her denials were
credible; (2) Darlene wanted to avoid going to jail; (3) the confession itself was
not credible because it described the three killings in exactly the same manner; (3)
the confession was rife with inconsistencies; (4) the confession contained material
inaccuracies, such as the location where the murders occurred; and (5) there were
no verifiable facts in the confession that were not already known to law
enforcement. We accept this finding as true because it is supported by substantial
evidence.
ii. View from the Hill
The referee also concluded that Darlene falsely testified at trial that while
smoking a cigarette on a hill near the foster home the night Denise disappeared,
she saw petitioner pick up Denise in his vehicle. The referee based this finding on
the following factors: (1) Darlene did not tell this fact to the sheriff’s deputies
throughout the interrogations, including the December 4 interrogation; (2) she
disclosed this information for the first time just days before she testified at the jury
trial; and (3) the referee visited the location and found that there were ample
37
places to smoke just outside the foster home, on a cold night, without walking to
the hill that overlooked the area of the underpass. We accept this finding as true.
iii. The Keychain
Finally, the referee did not believe Darlene’s statement at trial that she
found Debbie’s unicorn keychain in petitioner’s car on the date of the claimed
confession, because he believed that the confession never occurred. The referee
also found it significant that the keychain had no keys on it, which suggested that
Debbie did not carry it on her person. Moreover, Darlene repeatedly referred to
the keychain as belonging to both Debbie and Denise. We accept this finding as
true.
b. Incriminating Statements by Darlene
As noted, the referee found that, prior to December 4, many statements
made by Darlene that incriminated petitioner were true because they were
corroborated by physical evidence or witness testimony that the referee found
credible.5 Because they are based on substantial evidence and the referee’s
credibility assessments, we accept the referee’s findings that (1) petitioner stated
to Darlene that he did not know Lynda, but did know her parents; (2) petitioner
stated to Darlene he would “eliminate three from the foster home and three more”;
(3) in speaking to Darlene, petitioner referred to Denise and Debbie as “whores,”
“tramps” and “sluts”; (4) the night Denise disappeared, Darlene witnessed
petitioner “cleaning his gun and sharpening his knife” and he said to her he was
“going to take care of business” (the referee rejected as “ridiculous” Darlene’s
5
The referee also concluded that Darlene’s statements to the sheriff’s
deputies prior to the December 4 interview were not the product of coercion and
were voluntarily given. This finding is supported by substantial evidence and we
accept it as true.
38
explanation at the reference hearing that petitioner made this statement in the
context of a poker game); (5) the night Debbie disappeared, Darlene witnessed
petitioner pull a knife from his car’s sun visor, put it in his pants, and say to her he
“had to take care of business”; (6) Darlene observed that petitioner had a deep
fingernail scratch on his chest and scratches on his face around the end of June or
early in July of 1984, which coincided with the time Lynda disappeared; and
(7) Darlene and petitioner saw Debbie at Benham Park the night Debbie
disappeared, and petitioner took Darlene home unusually early that evening.
D. The Referee’s Findings: Kathy Erbe
Petitioner contends that his conviction is unconstitutional because the
prosecution withheld evidence of a conversation it had with Kathy Erbe, in which
she claimed that Joe and Linda Crespin testified falsely at petitioner’s jury trial.
The referee found that Kathy Erbe was the “epitome of noncredibility.” He found
that she testified at the reference hearing in a confused manner, made assertions
that could not possibly be true, and that her obsession with satanic cults affected
her perception and memory.6 Just as important, Erbe’s claims were vehemently
denied by Joe and Linda Crespin, district attorney investigator Ernie Birtwell, and
witnesses Sonia and Kip Miller, all of whom the referee found substantially more
credible than Erbe. The referee found that none of the statements attributed by
Erbe to Joe and Linda Crespin were ever made. These factual findings are entitled
to great deference, especially as they required the resolution of witness credibility.
(In re Malone, supra, 12 Cal.4th at p. 946.) The referee’s findings also are
supported by substantial evidence.
6
As noted by the referee, the cult story was thoroughly investigated, and
rejected by three different agencies, the Placerville Police Department, the El
Dorado County Sheriff’s Department, and the district attorney’s office, and by
defense investigator Larry Fuller on behalf of petitioner.
39
Because Erbe provided no relevant or material information to the
prosecution, it follows that the prosecution had no duty to disclose such
information to the defense. (Brady v. Maryland (1973) 373 U.S. 83.) We
therefore reject petitioner’s contentions regarding Kathy Erbe.
E. The Referee’s Findings: Linda Crespin
Petitioner contends that Linda Crespin gave false testimony that was
substantially material when she testified at trial that petitioner said he was seeing a
girl named Lynda and that “girls like that should be eliminated.” The referee
determined that Linda Crespin testified truthfully at trial. He based this finding on
the fact that Linda Crespin had testified at the preliminary hearing that petitioner
used the word “eliminated”; at trial, she explained that she thought about it “a
thousand times” and was sure petitioner used the word “eliminated”; Darlene and
Patricia Kelly also testified they heard petitioner use the word “eliminated”; and
the referee found that Linda Crespin’s reference hearing testimony regarding the
word “eliminated” was suspect. We accept the referee’s finding regarding Linda
Crespin and therefore reject petitioner’s contention that Linda Crespin testified
falsely at trial.
F. Materiality of the False Evidence
Although the referee found that Joanna testified truthfully at trial that she
saw petitioner chase and stab Denise, he found that Joanna falsely testified that a
person named Joe drove her back to Placerville after the stabbing. The referee
also found that Darlene falsely testified at trial that petitioner confessed to her that
he committed the murders, that she saw Denise get into petitioner’s car the night
Denise was murdered, and that she found Debbie’s keychain in petitioner’s car a
day or two after Debbie disappeared.
40
1. Standard of Review
Penal Code section 1473, subdivision (b)(1) provides that a writ of habeas
corpus may be prosecuted if “[f]alse evidence that is substantially material or
probative on the issue of guilt or punishment was introduced against a person at
any hearing or trial relating to his incarceration . . . .”
“False evidence is ‘substantially material or probative’ if it is ‘of such
significance that it may have affected the outcome,’ in the sense that ‘with
reasonable probability it could have affected the outcome . . . .’ [Citation.] In
other words, false evidence passes the indicated threshold if there is a ‘reasonable
probability’ that, had it not been introduced, the result would have been different.”
(In re Sassounian (1995) 9 Cal.4th 535, 546.) “The requisite ‘reasonable
probability’ ” is “determined objectively,” is “dependent on the totality of the
relevant circumstances,” and must “undermine[ ] the reviewing court’s confidence
in the outcome.” (Ibid.)
2. Whether Petitioner Confessed
In Sassounian, while we acknowledged that, in some cases, a confession
can provide the prosecution with an “ ‘evidentiary bombshell which shatters the
defense,’ ” its effect in a given case depends on whether a jury would have found
it believable. (In re Sassounian, supra, 9 Cal.4th at p. 548; quoting People v.
Schader (1965) 62 Cal.2d 716, 731.) Because the Sassounian informant had been
extensively impeached at trial, we believed it was “open to question” whether the
jury found the confession believable. (In re Sassounian, supra, 9 Cal.4th at
p. 548.) We therefore applied the reasonable probability test and determined that
had the confession not been introduced, the result would have been the same. We
concluded that there was no reasonable probability that admission of the
confession could have affected the outcome because “[s]eparate and apart from the
41
[confession] there was overwhelming evidence” supporting the conviction. (In re
Sassounian, supra, 9 Cal.4th at p. 548.) We proceed to the same analysis here.
a. Darlene’s
Credibility Open to Question
We determine, as a threshold matter, whether it is “open to question”
whether the jury found the confession believable. We answer that question in the
affirmative. In general, Darlene’s credibility at trial was doubtful. She made
several inconsistent statements during her direct testimony, and the record
indicates that the prosecutor asked Darlene a substantial number of leading
questions that required a simple “yes” or “no” answer. In addition, Darlene was
extensively impeached on cross-examination. As the referee colloquially noted,
Darlene’s testimony “was torn to pieces.”
For example, on direct examination, Darlene testified that petitioner had
nothing to do with Debbie. But in response to the very next question, she stated
petitioner would drive Debbie in his car. Immediately thereafter, she spoke about
an incident that occurred on the night she and Debbie went to the convalescent
hospital to visit Nona Chapman’s husband. She testified that, while at the
hospital, she tried to hide from Debbie; she then denied she tried to hide from
Debbie; when asked again, she reversed course once more and said she tried to
hide from Debbie.
Darlene testified at trial that she recalled being at the Exxon station with
petitioner and finding the unicorn keychain the day after Debbie disappeared.
Initially, however, Darlene stated that the unicorn keychain belonged to Denise.
When the prosecutor posed the question to her again, Darlene repeated that the
keychain belonged to Denise. On the third try, she said the keychain belonged to
Debbie. But thereafter, she again referred to the keychain as Denise’s and again,
at the prosecutor’s prompting, changed her testimony to say that it was Debbie’s
42
keychain. On cross-examination, Darlene was still uncertain, stating that she put
the unicorn keychain back in “Denise’s – Debbie’s” drawer.
Darlene’s account of the confession was doubtful on its face. Darlene
stated, as to Denise, that petitioner told her “[h]e had strangled her, stabbed her”
and “[h]ad sexual intercourse with her.” As to Lynda, Darlene stated in identical
language that petitioner told her “[h]e had strangled her, stabbed her and had
sexual intercourse with her.” As to Debbie, she echoed that petitioner told her he
had “strangled her, stabbed her and had sexual intercourse with her.” She added
that, as to all three victims, petitioner told her “[h]e had handcuffed their hands
and tied their feet.” Darlene’s claim that petitioner told her the exact same thing
as to all three victims is dubious. Her testimony also suggested that petitioner had
sex with the girls after they were dead. Indeed, the trial court commented at
sidebar that the “jury could only conclude that he killed [the victims] before he
had intercourse with them.” Darlene offered no further details about the
confession other than to say “I don’t know” when asked if petitioner had sex with
the victims before or after he killed them. The prosecutor, significantly, asked no
further questions about the confession, such as whether petitioner told Darlene
where the murders took place, or how he got Lynda and Debbie into his vehicle.
This utter lack of detail also makes the confession dubious.
Darlene’s account of the confession also contained what appeared to be
factual inaccuracies. On cross-examination, Darlene stated that petitioner told her
Denise was running down a road, but also agreed that petitioner said he tied her
feet. Defense counsel then asked her if petitioner tied Denise’s feet before she
started running. Darlene changed her story and said, “No, he didn’t have time to
tie up her feet.” Darlene stated that petitioner told her he stabbed Denise in the
stomach, but later stated petitioner told her he stabbed Denise in the chest.
Darlene also stated that petitioner said he killed Denise and Lynda on North South
43
Road. In fact, both girls were killed 12 miles away, on Ferrari Mill Road. We
conclude, therefore, that it is “open to question” whether the jury found the
confession believable. (In re Sassounian, supra, 9 Cal.4th at p. 548.)
3. False Evidence and the “Reasonable Probability” Test
The false testimony introduced at petitioner’s jury trial does not meet the
reasonable probability test set forth in Sassounian. Not only was Darlene’s
testimony of petitioner’s supposed confession highly suspect, as detailed above,
but there was overwhelming evidence at trial, separate and apart from the items of
false evidence, that amply supported the jury’s verdict. In other words, had such
false evidence not been introduced, it is reasonably probable the result would have
been the same.
a. Murder
Commonalities
The murders of Lynda, Denise, and Debbie must not be viewed in isolation
because there are many common threads that point to the fact that one person
killed these three girls. For example, all three victims were teenagers who lived in
Placerville and Debbie and Denise lived in the same foster home. All three
victims knew each other and “hung out” in downtown Placerville. All three
victims were killed in the El Dorado National Forest within a two-month period in
the late spring and summer of 1984 and the bodies of Denise and Lynda (who
were murdered just 17 days apart) were found within a quarter-mile of each other.
The bodies of all three victims were found unburied and naked, and their clothes
were found nearby, not strewn about, but together. Because no blood was found
on the victims’ clothes, it can be reasonably inferred that all three were murdered
while they were naked. These commonalities lead to the conclusion that the
murders were committed by one person and the evidence presented at trial
conclusively showed that that person was petitioner.
44
b. Petitioner’s
Incriminating Statements
Evidence of petitioner’s incriminating statements was admitted at trial.
Several teenage girls testified that before Denise’s murder, petitioner had
contemptuously referred to Denise, Darlene, and Lynda as sluts. Darlene’s mother
testified that in September 1984 (after Denise’s and Debbie’s murders), petitioner
volunteered that Denise and Debbie “were whores and tramps and they should
have been killed.” Also, at about that same time after the murders, Patricia Kelly
confided in petitioner that she suspected her husband was seeing another woman.
Petitioner replied, “Whores like that should be eliminated” — the very same term
he had used in referring to the victims. In November 1984, during a conversation
about the murders of the three victims, petitioner said to Joe and Linda Crespin,
“If I had stabbed the three girls would I be sitting here talking to you now?”
Significantly, petitioner referred to the cause of death as stabbing, even though
none of the media accounts at the time had identified stabbing as the cause of
death.
c. Murder of Denise
As discussed above, we adopt the referee’s finding that Joanna truthfully
testified at petitioner’s jury trial that she witnessed petitioner murder Denise. Our
finding is based on the fact that Joanna offered information at trial that could have
only been known by a person who was present when Denise was murdered. For
example, on the first trip to the murder location with sheriff’s deputies and Dr.
Dougherty, a dark and snowy night with poor visibility, Joanna located Ferrari
Mill Road, which was essentially an unmarked dirt road. Once on that dirt road,
she originally directed the sheriff’s deputies onto the wrong road at the “Y” fork,
but then corrected herself. Once on the correct road, as the car went up a hill with
ruts in it, Joanna stated that she remembered that hill. Once at Four Corners, she
told them to stop. On the second trip to the murder location, Joanna recognized a
45
tree stump marked with yellow paint just past Four Corners. Evidence
subsequently was admitted to show that the stump had been painted yellow prior
to the murder. She then pointed down a road at Four Corners and said that the
night of Denise’s murder “we went further down that road.” This was the road off
of which Denise’s remains were located. The two newspaper articles that Joanna
later claimed in her posttrial recantation to have read prior to these trips did not
disclose which direction to take at the Ferrari Mill Road “Y” fork, did not describe
the hill with ruts in it, and did not mention that the bodies were found at Four
Corners, all of which Joanna knew when she led the sheriff’s deputies to the site of
Denise’s murder.7
On the third trip to the murder location (with Sergeant Wilson on June 22,
1985), which was the first time Joanna led sheriff’s deputies down the road off of
which Denise’s remains were located, she accurately predicted they would “go
over a small rise and drop down off this rise and [that] it would level out.” She
then told Sergeant Wilson to stop the car and proclaimed: “That’s where
[petitioner’s] car was parked the night Denise was killed.” This spot was within
75 yards of the murder scene. As noted, only a person who was present when
Denise was murdered would possess such specific knowledge.8
7
Accordingly, we reject the dissent’s claim that Joanna was able to direct the
sheriff’s deputies to the murder scene in November 1984 because “she knew from
news reports the approximate location where loggers had found Denise’s body
one-half mile west of Ferrari Mill Road.” (Dis. opn., post, at p. 12.)
8
The dissent claims that the “circumstances of [the June 22, 1985] trip [to
the murder location] are highly suspect” based largely on the belief that Sergeant
Wilson’s “credibility is in question.” (Dis. opn., post, at p. 12.) But the referee,
who observed Sergeant Wilson testify at the 1994 reference hearing, found that “in
describing his observations and conduct in the area of Ferrari Mill Road . . . he
was an able, ingenious and honest police officer.” This “assessment of witness[]
credibility” is entitled to great deference. (In re Johnson (1998) 18 Cal.4th 447,
(fn. continued on next page)
46
Joanna’s trial testimony was corroborated in several critical respects.
Joanna testified at trial that there was a trickle of water in the area where she
vomited. Just prior to the murder, it rained for four consecutive days. The
People’s expert testified that, given the rainfall, he would expect shallow puddles
in the area where Denise was murdered on June 12. Joanna testified at trial, for
the first time on cross-examination, that there was a full moon the evening of June
12. In fact, evidence later admitted at trial showed it was one night before a full
moon.9
Joanna also testified at trial that Denise was naked, running with her hands
behind her back, when petitioner stabbed her. Denise’s clothes were found apart
from her body, corroborating Joanna’s testimony that Denise was naked; petitioner
kept a knife above his car’s sun visor and showed it to Darlene on the night of
Denise’s murder, saying “[t]onight is going to be a good night for business,”
corroborating Joanna’s testimony that Denise was stabbed; and petitioner kept
handcuffs in his car, corroborating Joanna’s testimony that Denise was running
(fn. continued from previous page)
461.) Unlike the dissent, we will not “second-guess” the referee’s credibility
finding as to Sergeant Wilson.
9
The dissent claims that the “circumstance of Bruce Nesthus’s reversible
jacket” lends support for the conclusion that Joanna falsely testified at trial
because “when she described what Denise was wearing on the night of her death,
Joanna made no mention of Denise wearing a man’s black-and-orange jacket.”
(Dis. opn., post, at pp. 13-14.) But the person who found the jacket described it as
a “reversible [jacket] either dark blue or black on one side and orange on the
other.” Thus, Denise was likely wearing what appeared to be a dark blue or black
jacket. This would hardly have been distinctive and Joanna’s failure to mention
the jacket is not significant.
47
with her hands behind her back. This corroborating evidence reinforces the
conclusion that Joanna witnessed petitioner murder Denise.10
Finally, although there was only media speculation about the cause of
death, Joanna knew that petitioner had stabbed Denise — she told law
enforcement so in early November 1984. Also, in early November 1984,
petitioner said to Joe and Linda Crespin, “If I had stabbed the three girls would I
be sitting here talking to you now?” Those corroborative statements, made
independently of each other and at about the same time, strongly support the
referee’s finding that Joanna’s eyewitness testimony was reliable.
d. Murder of Lynda
Several witnesses testified that petitioner was the last person to be seen
with Lynda, who stated she would be “right back” as she left with petitioner. And
10
The dissent, by highlighting the fact that the jury heard that Joanna had lied
to the police about Denise’s disappearance in the spring and summer of 1984, that
Joanna applied for a reward, and that the prosecutor suggested to the jury that it
could take Joanna out of the case and still convict, concludes that Darlene’s false
testimony is material because “the record of petitioner’s capital trial reveals
substantial problems with Joanna’s testimony that she saw petitioner kill Denise.”
(Dis. opn., post, at pp. 16-17.) But the dissent overstates the case. The prosecutor
highlighted the fact that Joanna decided to tell the truth only after seeing the
yellow paint on the tree stump on November 7, 1984. Moreover, petitioner did not
establish that Joanna was aware of any reward prior to her return to Placerville
from Washington on October 29, 1994. Finally, even though the prosecutor told
the jury that it could “hypothetically take Joanna” out of the case, he immediately
told the jurors not to put her testimony aside. Specifically, in his rebuttal
argument, the prosecutor stated that “if you take Joanna [N.] and put her aside . . .
there is still a ray of evidence through which there runs a common thread that
speaks with strong and compelling force as to the guilt of [petitioner].” But he
added in the very next sentence, “Now I don’t say to put Joanna [N.] aside. I say
judge her testimony by what you saw. Judge her testimony by the evidence.” The
prosecutor did not diminish the importance of Joanna’s testimony. Obviously,
Joanna’s corroborated eyewitness testimony that petitioner stabbed Denise to
death was the most damning evidence against petitioner.
48
despite the testimony from several witnesses that petitioner knew Lynda,
petitioner, on July 5, 1984, told Donald Burrill, Lynda’s father, that he did not
know Lynda and even denied being in town the evening she disappeared. When
El Dorado Sheriff’s deputy Detective William White interviewed petitioner two
weeks later, petitioner changed his story and said he might have been with Lynda
that night. Additionally, the day after Lynda disappeared, Linda Crespin observed
him with a scratch on his forehead to which he applied medicine. Petitioner also
admitted, the day after Lynda’s disappearance, that he had been seeing or dating a
girl named Lynda, but stated that “girls like that should be eliminated.”
Finally, Lynda and Denise were murdered just 17 days apart, in the same
manner, and at the same location, Ferrari Mill Road. Petitioner was very familiar
with Ferrari Mill Road, having camped there several times.
e. Murder of Debbie
At trial, witnesses offered the following testimony. Petitioner said Debbie
was “turning out real bad” and had threatened Debbie several days before her
disappearance. Referring to Debbie, petitioner said shortly before her
disappearance “You won’t have to worry about her much longer.”
On the night Debbie disappeared, petitioner’s car was observed driving by
Benham Park “real slow” and the driver was seen “looking through the park” at
the same time Debbie was at the park attending a party for a friend. Darlene
confirmed that she and petitioner were sitting on a picnic bench in the park that
evening for about 15 minutes, and she saw Debbie in the park. Yet, four days
after Debbie disappeared, petitioner denied seeing Debbie in Benham Park that
night. Darlene further stated that, during that evening, petitioner pulled a knife
from his car’s sun visor and put it in his pants, saying “he had to take care of
business.” Petitioner took Darlene back to the foster home “unusually” early.
49
Debbie walked home alone after the party because her friends left her after
walking her just “some of the way” home.
Finally, as in the case of Lynda and Denise, petitioner was familiar with the
area where Debbie’s body was found, Camp Creek on North South Road, as he
camped and cut wood there on several occasions.
f. Conclusion
Based on the foregoing evidence, it cannot be said that any of the false
statements, viewed separately or together, were substantially material or probative
on the issue of guilt or punishment. It is not reasonably probable, therefore, that
the result of the trial, had the jury not heard the false statements, would have been
different. Our confidence that the jury reached the proper verdict is therefore not
undermined. (In re Sassounian, supra, 9 Cal.4th at p. 546.)
V. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
We asked the referee to determine whether Defense Counsel Patrick
Forester’s pretrial investigation of Darlene’s credibility was conducted in a
manner to be expected of reasonably competent attorneys acting as diligent
advocates. If not, we inquired how his investigation was inadequate, and what
additional information an adequate investigation would have disclosed. The
referee’s finding that trial counsel’s performance was inadequate in certain
respects but not prejudicially so is a mixed question of law and fact that is subject
to our independent review. (In re Hamilton, supra, 20 Cal.4th at pp. 296-297.)
A. Standard of Review
“When the basis of a challenge to the validity of a judgment is
constitutionally ineffective assistance by trial counsel, the petitioner must establish
. . . counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and there is a reasonable probability that, but
50
for counsel’s unprofessional errors and/or omissions, the trial would have resulted
in a more favorable outcome.” (In re Visciotti, supra, 14 Cal.4th at p. 351.)
“[T]he petitioner must establish ‘prejudice as a “demonstrable reality,” not
simply speculation as to the effect of the errors or omissions of counsel.
[Citation.] . . . The petitioner must demonstrate that counsel knew or should have
known that further investigation was necessary, and must establish the nature and
relevance of the evidence that counsel failed to present or discover.’ [Citation.]
Prejudice is established if there is a reasonable probability that a more favorable
outcome would have resulted had the evidence been presented, i.e., a probability
sufficient to undermine confidence in the outcome. [Citations.] The
incompetence must have resulted in a fundamentally unfair proceeding or an
unreliable verdict. [Citation.]” (In re Clark (1993) 5 Cal.4th 750, 766.)
There were several questions explored regarding whether Attorney Patrick
Forester conducted a competent investigation. The referee considered whether
counsel should have (1) subpoenaed Darlene’s medical, psychiatric and education
records; (2) personally interviewed Darlene; (3) had his investigator interview
Darlene’s friends and family; (4) retained a mental health professional; (5)
transcribed, for purposes of cross-examination, Darlene’s November 9 and
December 4 taped interviews with deputy sheriffs; and (6) retained a police
interrogation expert in light of the content of those tapes.
B. Forester’s Testimony
1. Failure to Subpoena Records
Forester did not attempt to obtain Darlene’s school records because he did
not believe “they really [would have] added anything.” He did not subpoena
Darlene’s county health or mental health records because at that time, those
records were generally not discoverable. He did not subpoena Darlene’s
51
psychiatric records because he had a “clear understanding” of her psychological
profile and did not think such records were necessary in this case.
2. Failure to Interview Witnesses
Forester testified that Darlene stated to him, prior to the preliminary
hearing, that she did not want to talk to him. Forester added that it was the trial
prosecutor’s practice to instruct witnesses that they did not have to talk to the
defense, and thereafter, “they didn’t talk to us, even when we attempted to talk to
them.” On one occasion, his investigator, Larry Fuller, saw Darlene in the district
attorney’s office alcove and tried to talk to her, and District Attorney Ron Tepper
“went ballistic.” Forester stated that Darlene would not talk to the defense. Other
potential witnesses were hostile to the defense as well, and would not provide
information. Darlene’s parents were hostile towards the defense. The only person
who did cooperate was Joe Crespin.
3. Tactical Considerations
Forester stated he had considered hiring a psychologist or psychiatrist, but
he did not think it was necessary in this case.11 He explained that he “kn[e]w
[petitioner] confessed his crime to nobody because that was just not [him],” and
that he did not confess to Darlene because she married him after the alleged
confession. Instead, Forester believed that Darlene was present at the three
homicides, which, given her grant of total immunity, presented a problem “all
along” in cross-examination because it “wouldn’t help [petitioner] a lot for her to
confess that she was in fact present when he did all these murders.” Forester
added: “So I think all of my cross-examination and the investigation of her
background or her psychiatric profile was tempered by that problem.” Forester
11
Forester stated that he never considered consulting with someone who had
expertise in police interrogation techniques.
52
outlined his trial strategy: “I had my own theory and my own trial tactics with
respect to the case as to her. And my problem was that I believed, and to this day
I believe, she was present when all these things were committed.” Forester added
that he did not need a psychiatric expert to tell him that the reason Darlene went to
a psychiatric unit after Debbie’s disappearance was “a result of the fact that she
had participated in these offenses.” When asked whether a report that stated
Darlene was delusional would have assisted his cross-examination, Forester
replied: “I do not believe her to be a delusional person and I would not have
retained a psychiatrist to establish something that I didn’t believe.”
Forester provided his reasons for his belief that Darlene was involved:
“She was described in the trial as [petitioner’s] automation [sic: automaton] by
[the trial prosecutor] and I . . . would agree with that. That she did whatever
[petitioner] wanted her to do. That she was there when he wanted her to be there.
And that she was always with him when he wasn’t working and when she could
get away from the foster home. She was with him all the time.” And as petitioner
had only one friend in town, Joe Crespin, and “everybody [else] in town really
hated him,” Forester felt that none of the victims would have gotten into
petitioner’s car unless Darlene was present. Forester acknowledged that “of
course” Darlene had never admitted being present at the murders during her
interrogations, the preliminary hearing, or the trial.
4. Failure to Transcribe Tapes
Neither Forester nor the prosecutor had transcripts prepared of Darlene’s
three November 9 taped interviews or the December 4 taped interview with the
sheriff’s deputies. Forester said he listened to all of the tapes four or five times.
He also reviewed the reports associated with each tape. He said he made notes of
the tapes, but he could not find them in his files. He thought Darlene was easily
53
led and he thought she was trying to please the investigators because she was, in
fact, involved in the murders.
Forester bridled at the suggestion he was “lazy” for not having the tapes
transcribed. When the referee asked him whether it would have been better to put
the tapes before the jury, Forester explained it was “just a question of technique.”
He believed the reports adequately summarized the tapes and he believed
Darlene’s cross-examination was based on all the information before him,
including the tapes. When the referee persisted that playing the tapes would have
been a more effective method of cross-examination, Forester disagreed. To his
thinking, Darlene, under police pressure, told police about petitioner’s
“confession” because she was present at the murders. Forester stated, “Isn’t that
why she really broke down in the end?”
C. The Referee’s Findings
1. Adequacy of Counsel’s Performance
The referee concluded that Darlene and other witnesses, such as Darlene’s
family and friends, would not have talked to Forester prior to trial. He concluded
that, based on the law at that time, the defense would not have been able to obtain
Darlene’s county mental health or psychiatric records (or a psychiatric
examination). He also concluded that Forester was under no obligation to hire a
police interrogation expert to undermine a prosecution witness’s testimony.
However, the referee believed that Forester’s investigation was inadequate
because he failed to obtain Darlene’s school records, which were available
pursuant to the Education Code. (Ed. Code, §§ 49076-49078.) These records
contained information that Darlene had a low IQ (in 1984, Darlene had a verbal IQ
of 72), believed in mystic control, believed she had supernatural powers, and had a
vivid imagination. The referee concluded that this information should have been
54
available to the jury in considering Darlene’s credibility. Forester would then
have had sufficient reason to hire a psychiatric expert to potentially exploit this
information.
Forester’s main investigative deficiency, stated the referee, was not having
the tapes of the interviews transcribed, as they “constituted a goldmine for
investigation of credibility.” For example, the tapes showed that Darlene told the
deputies 15-20 times that petitioner did not confess, and it was only when Darlene
was threatened with arrest at the December 4 interview that she produced a
“confession.” The tapes also showed that Darlene was suggestible; that there were
several versions of the confession; and that she was often prompted by the
deputies or her mother.
The referee believed that Forester’s belief that Darlene was an accomplice
was based on an inadequate investigation, was contrary to known facts, and should
not have precluded him from obtaining school records or obtaining a transcript of
the November 9 and December 4 interrogations. The referee also found that the
reports did not adequately summarize the tapes, and that Forester should have
cross-examined the sheriff’s deputies on the arrest threat.
2. Prejudice
The referee concluded, however, that petitioner was not prejudiced by these
investigative inadequacies because there was no reasonable probability of a more
favorable outcome because Forester’s “searing” cross-examination exposed
Darlene’s poor memory, the inconsistencies between her direct testimony and
cross-examination, the lack of detail, her failure to recall, and her suggestibility.
The referee stated that “[b]ecause the cross-examination utterly destroyed the
believability of the ‘confession’ story, the petitioner cannot meet the legal standard
required to show prejudice.”
55
D. Discussion
There are two components to an ineffective assistance of counsel claim:
deficient performance of counsel and prejudice to the petitioner. Strickland v.
Washington (1984) 466 U.S. 668, 697, informs us that “there is no reason for a
court deciding an ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one. In particular, a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
Accordingly, we need not grade counsel’s performance here because we
agree with the referee’s finding that petitioner was not prejudiced by counsel’s
alleged deficiencies. First, the confession itself was dubious because it lacked
detail, described each murder in an identical manner, and contained factual
inaccuracies. Darlene’s credibility was also eroded because she made several
inconsistent statements during her direct testimony, was constantly asked leading
questions, and defense counsel further exposed her poor memory, her factual
misstatements, and her suggestibility. That Darlene testified under a grant of
immunity further eroded her credibility to the jury.
The referee observed Darlene testify at the reference hearing. After seeing
her demeanor, and hearing her inflections, her tone of voice, and her hesitations,
he concluded that Darlene was an unconvincing witness. She had obvious mental
limitations (as noted above, an IQ of 72, difficulty in comprehension, frequent
confusion and losses of memory) and was prone to suggestibility. She laughed
frequently at inappropriate moments, which the referee acknowledged also had
56
occurred in law enforcement interviews prior to the jury trial. As noted, the
referee’s observations of Darlene’s manner of testifying at the reference hearing
and his assessment of her credibility are entitled to great weight. (See, e.g., In re
Hamilton, supra, 20 Cal.4th at pp. 296-297.) Defense counsel Forester also
observed that, at the jury trial, Darlene was not responsive to his cross-
examination questions and “didn’t seem to track and understand the simplest of
questions.” Based on the foregoing, we believe that the referee reasonably
inferred that the jurors likely witnessed the same limitations at trial and discounted
Darlene’s confession testimony.
To establish prejudice, there must be a reasonable probability that a more
favorable outcome would have resulted if counsel had transcribed the tapes or had
obtained Darlene’s school records. (In re Clark, supra, 5 Cal.4th at p. 766.)
Petitioner has not met this burden.
VI. DISPOSITION
For all of the foregoing reasons, the order to show cause is discharged. The
petition for writ of habeas corpus will be resolved, as is our normal procedure, by
a separate order.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
57
DISSENTING OPINION BY KENNARD, J.
Petitioner was convicted of three murders and sentenced to death almost
entirely on the trial testimony of two teenage girls, Darlene S. and Joanna N. Both
of these crucial trial witnesses have since admitted under oath, at a habeas corpus
reference hearing ordered by this court, that their trial testimony against petitioner
was false. The majority acknowledges that Darlene’s trial testimony was false,
and it agrees with the referee (a retired superior court judge) that petitioner has
shown Joanna to be a chronic liar and manipulator. The majority nonetheless
concludes that we should accept Joanna’s trial testimony as truthful and reject her
later recantation as false. The majority reaches this conclusion by drawing a series
of inferences from facts in the record.
I disagree. Because the punishment of death differs from all other criminal
punishments both in its severity and in its finality, there is a special need that
judgments in capital cases rest on evidence that is substantial, credible, and
reliable. (See Ford v. Wainwright (1986) 477 U.S. 399, 411 (plur. opn.).)
Darlene’s trial testimony did not provide credible evidence of petitioner’s guilt
because, as the majority concedes, that testimony was false. Joanna’s trial
testimony is highly suspect because, as the referee found, she is a chronic liar.
Unlike the majority, as I will explain, I find nothing in the record before this court
to provide the necessary reassurance that Joanna testified truthfully at petitioner’s
trial. I would not send petitioner to his death on such flimsy evidence.
1
I
A. Background
During the summer of 1984, three teenage girls (Lynda Burrill and sisters
Denise and Debbie Galston) disappeared from the town of Placerville in El
Dorado County. Their decomposed remains were later discovered in the nearby El
Dorado National Forest. Public suspicion focused on petitioner, a 27-year-old
loner who lived in his car.
At the end of October 1984, when a deer hunter found the decomposed
remains of the third victim, Debbie, the prosecution did not have enough evidence
to charge petitioner with any of the three murders. No physical evidence tied him
to any of the killings. And the circumstantial evidence implicating him was quite
weak: All three victims frequented The Oz, a local videogame arcade and teenage
hangout, as did petitioner; petitioner had expressed his dislike of the Oz-crowd
girls, making callous and threatening remarks about them; he was seen with victim
Lynda the night she disappeared, and the next day he had a scratch on his
forehead; he told contradictory stories about whether he knew Lynda; he kept
knives, guns, and handcuffs in his car; and he had camped and logged in the
forested areas where the bodies were found.
1. Joanna N.’s accusations
In late October 1984, Joanna N. talked to El Dorado County Sheriff’s
deputies Detective Erol Harnage and Sergeant Bill Wilson. Joanna had been a
friend of victims Denise and Debbie Galston, as they all lived in the same group
foster home. Joanna told the sheriff’s deputies she knew “something” about the
murders. Because she seemed unwilling to say more, the deputies had her meet
with a psychologist, Dr. Frank Dougherty, Chief of the El Dorado County Mental
Health Department, in the hope that she would feel more comfortable discussing
what she knew about the murders with him.
2
Joanna saw Dr. Dougherty on November 1, 1984, and told him that
petitioner had killed Denise. Eventually, she accompanied Dr. Dougherty and the
sheriff’s deputies on two trips to the forest where loggers had found Denise’s
body. During the second trip to the murder scene, Joanna said she had seen
petitioner kill Denise. The next day, November 7, Joanna described petitioner’s
stabbing of Denise.
2. Darlene S.’s accusations
During the summer of 1984, Darlene S., who was then petitioner’s girlfriend,
lived in the group foster home with victims Denise and Debbie. On November 9,
Detective Harnage and Sergeant Wilson brought Darlene to the sheriff’s station for an
interview. They asked Darlene if she knew anything about the murders. She insisted
she did not, and she continued to do so in a series of interviews conducted throughout
November. But on December 4, Darlene told the sheriff’s deputies that a couple of
days after Debbie’s disappearance, she had found a key chain belonging to Debbie in
petitioner’s car, and that when Darlene showed the key chain to petitioner, he had
admitted killing Debbie, Denise, and Lynda.
In May 1985, petitioner’s case went to trial on three counts of capital
murder. Joanna and Darlene testified for the prosecution.
B. Joanna’s Trial Testimony
At petitioner’s trial, Joanna told this story:
In the early evening of June 12, 1984, Joanna, Denise, and several other
young people were at a “wandering party” in downtown Placerville. At some
point, the party moved to a place outside a car dealership. Joanna noticed
petitioner drive by, and shortly thereafter saw Denise heading home. Denise
walked toward the freeway underpass and then got into petitioner’s car. Petitioner
then picked up Joanna, telling her they were going to “a party.”
3
After heading east on Highway 50, they stopped on a dirt road off Mormon
Emigrant Trail. Joanna got out, walked uphill, and vomited. While washing her
face in “a little trickle of water, a stream,” she heard Denise scream. From a
distance of 55 to 60 feet in the moonlit night, Joanna saw Denise run from
petitioner. Denise was naked and had her hands behind her back as if bound.
Petitioner caught Denise, pushed her down, pulled a knife, and stabbed her.
Joanna fled through the forest, making her way back to Mormon Emigrant Trail.
There, she hid from an approaching car, fearing it might be petitioner. She then
hailed the next car and got a ride back to Placerville from a young man named Joe,
whom she had previously met at a local teen dance club. Back in Placerville,
Joanna encountered Bruce Nesthus, who had been at the “wandering party” with
her earlier. She spent the rest of the night at his house. Not until five months
later, when she talked to Dr. Dougherty, Detective Harnage and Sergeant Wilson,
did Joanna reveal to anyone her eyewitness account of Denise’s murder.
C. Darlene’s Trial Testimony
At petitioner’s trial, Darlene gave this account:
In the spring and summer of 1984, petitioner often referred to victims
Denise and Debbie Galston as “sluts.” Once petitioner told Darlene, “[t]hree
[will] be eliminated from the foster home” where the sisters lived “and three
more.”
On June 12, 1984, the day of Denise’s disappearance, Darlene spent the
early evening with petitioner. Around 10:00 p.m., petitioner took Darlene back to
the group foster home. When she went outside to smoke, she saw petitioner’s car
near the freeway; moments later, Denise entered petitioner’s car. A few days
thereafter, Darlene told petitioner that Denise never came back to the foster home.
He told her not to worry.
4
Denise’s sister Debbie was last seen on August 8, 1984. A day or two later,
while cleaning petitioner’s car, Darlene found a unicorn key chain belonging to
Debbie. After she confronted petitioner with the key chain, he admitted that he
strangled and stabbed Denise, Debbie, and Lynda.
II
A. Joanna’s Recantations
In his petition for writ of habeas corpus and later at the reference hearing
this court ordered, petitioner presented evidence that Joanna had lied at his capital
trial. Petitioner offered declarations by three people that Joanna had told them that
her trial testimony was false. The declaration by Allen Dwyer, who had been
married to Joanna between 1987 and 1989, stated that during the brief marriage,
Joanna several times said that on the night Denise disappeared, Joanna was not
with petitioner nor did she see him kill Denise, and that she had passed out drunk
in a park in downtown Placerville. Declarations by Dwyer’s mother, Anita
Hoosier, and a friend, Laura Lawrence, asserted that Joanna had made similar
comments to them.
In response, the Attorney General prepared a declaration, which Joanna
signed on May 10, 1990, denying ever telling anyone that she had lied at trial.
On January 16, 1992, Joanna appeared with counsel at the El Dorado
County District Attorney’s Office. The district attorney granted Joanna immunity
from prosecution for any false testimony at petitioner’s preliminary hearing or trial
or in her May 10, 1990 declaration. Then, in a tape-recorded deposition, Joanna
recanted her trial testimony about Denise’s murder. Specifically, Joanna denied
that the night of June 12, 1984, she saw Denise get into petitioner’s car, that
moments later, petitioner picked her up, and that the three then drove to a remote
area where petitioner stabbed Denise. Joanna acknowledged encountering Bruce
Nesthus early the next morning and sleeping at his house, but she could not
5
remember the exact time that she met him because she was drunk and under the
influence of drugs. According to Joanna, she told the sheriff’s deputies that she
witnessed Denise’s murder because she believed petitioner had killed Denise, as
well as Lynda and Debbie.
Some two years later, at the reference hearing in February 1994, Joanna
again recanted her trial testimony. She testified that she made up the story about
witnessing petitioner kill Denise because of her own suspicions about petitioner
and because of pressure put on her by Detective Harnage and Sergeant Wilson.
Joanna mentioned telling Kenny Moulton, her boyfriend at the time of the
trial, that she had lied at trial. She also said so to her ex-husband (Allen Dwyer),
his mother, and Laura Lawrence, the three people who provided declarations in
support of the petition.
Joanna said that during the trial she became good friends with Sergeant
Wilson and his wife Sherry. Sometime after the trial she told Wilson that her trial
testimony about seeing petitioner stab Denise was untrue (she claimed to have
only heard Denise’s screams), and that she did not ride back to Placerville with
Joe (someone she had previously met at a teen dance club) but rather with
petitioner.
Joanna said she delayed telling the district attorney that she had lied at trial
because she was afraid that he would prosecute her for perjury and that ex-
husband Dwyer would gain custody of their children. She eventually decided to
reveal her false testimony because she wanted to clear her conscience and because
of significant changes in her lifestyle, explaining that she no longer used drugs or
alcohol, and that she had become a practicing Christian.
B. The Referee’s Findings Regarding Joanna’s Trial Testimony
This court asked the referee to determine whether Joanna’s trial testimony
was false. He made these findings: Joanna was a chronic liar, who throughout her
6
life had made up elaborate and creative falsehoods. The referee nonetheless
concluded that Joanna had not lied about seeing petitioner kill Denise. But he
disbelieved Joanna’s trial testimony that she fled through the forest and hitched a
ride back to Placerville with someone named Joe. Based on his personal
observation of the steep and rugged terrain, the referee concluded that it would
have been impossible for Joanna to make her way from the murder site to the
paved highway. Because petitioner’s jury at the trial had visited the murder scene,
the referee considered it highly unlikely that the jurors would have believed
Joanna’s testimony about how she got back to Placerville and thus would not have
considered that testimony in finding petitioner guilty of Denise’s murder. For that
reason, the referee concluded that the false part of Joanna’s trial testimony was not
material.
In the referee’s view, there was no way for Joanna to have returned from
the murder scene to Placerville other than riding back with petitioner. He posited
that Joanna thought she could be prosecuted as an accessory to murder for having
done so. That, the referee said, would explain Joanna’s initial reluctance to tell
Detective Harnage and Sergeant Wilson about seeing petitioner stab Denise.
The referee believed Joanna’s reference hearing testimony that sometime
after petitioner’s trial she told Sergeant Wilson that she had lied about seeing
petitioner stab Denise (she had only heard screams) and about riding back to
Placerville with Joe (she rode back with petitioner). But the referee disbelieved
Joanna’s claim to Wilson that she had only heard but not seen the murder. That,
according to the referee, was just another posttrial attempt by Joanna to distance
herself from the murder.
C. Darlene’s Recantation
After she was granted immunity for any perjury committed at petitioner’s
preliminary hearing and capital trial, Darlene testified at the reference hearing that
7
key aspects of her trial testimony were false. Specifically, she denied that
petitioner ever told her he had killed any of the three girls; thus, her trial testimony
attributing these admissions to petitioner was false. Also, contrary to her trial
testimony, she did not see Denise get into petitioner’s car on the night of June 12,
1984, when Denise disappeared. Petitioner never told her “[t]hree [will] be
eliminated from the foster home and three more.” (See p. 5, ante.) And contrary
to her trial testimony, Darlene found Debbie’s unicorn key chain in petitioner’s car
after petitioner and Darlene had given Debbie a ride, well before Debbie’s
disappearance. Darlene immediately returned the item to Debbie.
Darlene explained at the reference hearing that although petitioner did refer
to sisters Denise and Debbie Galston as “sluts,” he did so because they kept
hanging around with Joanna, who reputedly was “going to bed with every guy” at
The Oz videogame arcade.
Darlene said that during her interrogations by Detective Harnage and Sergeant
Wilson throughout November 1984, she repeatedly told them she knew nothing about
the killings, but “they wouldn’t accept it.” The two sheriff’s deputies accused
Darlene of involvement in the murders, saying she was part of a “conspiracy” and
could be sent to prison. Although her mother and stepfather were present at these
sessions, Darlene testified that she was afraid of her stepfather, who hated petitioner
and had sexually abused Darlene since she was 10.
Between an interview session with the prosecutor on November 15, 1984,
when Darlene denied knowing anything about the murders, and her taped interview
with Detective Harnage and Sergeant Wilson on December 4, when she said
petitioner had told her he killed the three girls, the two questioned her “off the record”
for five to six hours each day. Because Harnage and Wilson kept “harassing [her] and
bothering [her],” Darlene said she finally changed her story to the one she gave at
trial: That petitioner told her he had killed Denise, Debbie, and Lynda.
8
The transcript of the December 4, 1984, taped interview of Darlene by
Detective Harnage and Sergeant Wilson, which was also introduced by petitioner
at the reference hearing, shows that the two sheriff’s deputies went to Darlene’s
house and threatened her with arrest for “withholding information.” In that
interview, Darlene for the first time mentioned statements to her by petitioner
admitting that he had killed the three girls.
D. Referee’s Findings About Darlene
In response to our question whether Darlene had given false testimony at
petitioner’s capital trial, the referee found that Darlene lied when she testified at
trial (1) that she saw Denise enter petitioner’s car the night Denise disappeared;
(2) that she found Debbie’s unicorn key chain in petitioner’s car a day or two after
Debbie disappeared; and (3) that petitioner told her he had killed Debbie, Denise,
and Lynda.
The referee further found that “many manipulations of Darlene during the
interrogation process” by Detective Harnage and Sergeant Wilson, culminating in
their threat “to arrest her for ‘withholding information’ ” led her to lie at
petitioner’s capital trial. The referee concluded, however, that Darlene’s false
testimony was not material because she was a poor witness who could not keep
her story straight, and who was thoroughly impeached by defense counsel.
III
A. Pertinent Legal Standards
California law provides for issuance of the writ of habeas corpus if “[f]alse
evidence that is substantially material or probative on the issue of guilt or
punishment was introduced against [the petitioner] at any hearing or trial relating
to his incarceration. . . .” (Pen. Code, § 1473, subd. (b)(1).)
The petitioner has the burden of establishing entitlement to relief and must
do so by a preponderance of the evidence. (In re Sassounian (1995) 9 Cal.4th 535,
9
546.) Thus, to successfully mount a collateral attack, the petitioner must
overcome the presumptions favoring the “ ‘truth, accuracy, and fairness of the
conviction and sentence.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 474.)
When this court orders a reference hearing, it is not bound by the referee’s
factual findings, although they are generally accorded great weight when
supported by substantial evidence. (In re Johnson (1998) 18 Cal.4th 447, 461.)
“Deference to the referee is called for on factual questions, especially those
requiring resolution of testimonial conflicts and assessment of witnesses’
credibility . . . .” (Ibid.) This deference “ ‘ “derives from the fact that the referee
had the opportunity to observe the demeanor of witnesses and their manner of
testifying.” ’ ” (In re Avena (1996) 12 Cal.4th 694, 710.)
This court independently reviews the referee’s resolution of legal issues and
mixed questions of fact and law. (In re Johnson, supra, 18 Cal.4th at p. 461; In re
Cordero (1988) 46 Cal.3d 161, 180-181.) Whether false evidence “is substantially
material or probative” (Pen. Code, § 1473, subd. (b)(1)) calls for independent
review because materiality presents a mixed question of fact and law. “Mixed
questions are those in which ‘ “the historical facts are admitted or established, the
rule of law is undisputed, and the issue is whether the facts satisfy the [relevant]
statutory [or constitutional] standard, or to put it another way, whether the rule of
law as applied to the established facts is or is not violated.” ’ ” (People v. Cromer
(2001) 24 Cal.4th 889, 894; People v. Louis (1986) 42 Cal.3d 969, 984.)
B. Materially False Testimony by Joanna
On petitioner’s claim that Joanna gave materially false testimony at his
capital trial, the majority adopts the referee’s findings and conclusions that Joanna
lied only about how she got back to Placerville (see p. 7, ante) and that her false
testimony was not material. Thus, according to the majority, Joanna testified
truthfully at petitioner’s capital trial that on the night of June 12, 1984, she saw
10
Denise enter petitioner’s car; that petitioner turned around and picked up Joanna,
telling her they were going to a “party”; that the three traveled to a forested area
where Joanna left the car and vomited; that shortly thereafter, she saw a naked
Denise running with her hands behind her back as if tied, and petitioner chasing
and ultimately stabbing Denise with a knife.
In reaching that conclusion, the majority highlights certain findings by the
referee. We usually defer to a referee’s factual findings when they are based on
the referee’s observation of witness demeanor at the reference hearing. (In re
Avena, supra, 2 Cal.4th at p. 710.) Here, however, the referee’s findings are based
not so much on witness demeanor at the reference hearing but rather on a series of
inferences drawn from the evidence presented at trial and at the reference hearing.
These inferences do not warrant deference, as this court is in as good a position as
a referee to draw logical inferences from evidence.
The majority relies on the referee’s finding that at the 1994 reference
hearing Joanna could give no details of her whereabouts on June 12, 1984 (the
night Denise disappeared) between 9:30 p.m. and 3:00 or 3:30 the next morning
(the approximate time Joanna encountered Bruce Nesthus with whom she spent
the night.) (Maj. opn., ante, at p. 29.) I see nothing unusual about Joanna’s
inability to recall at the reference hearing details of events that took place 10 years
earlier. Bruce Nesthus’s October 4, 1984, telephone interview with Detective
Harnage is instructive on this point because it took place only four months after
Denise disappeared. (Nesthus moved to another state before Denise’s body was
found and thus did not know she had been murdered.) Asked by Detective
Harnage about “the twelfth of June” and “the drinking party [that] wound up down
at [the auto dealership],” Nesthus replied, “I can’t remember. It doesn’t click in
my mind.”
11
In concluding that Joanna’s trial testimony was essentially true, the
majority points to her having directed the sheriff’s deputies in November 1984 to
the approximate location off Ferrari Mill Road where Denise’s body had been
found earlier. (Maj. opn., ante, at p. 30.) But as Joanna explained at the reference
hearing in 1994, she had previously lived on Sly Park Road off Highway 50 (near
Ferrari Mill Road) and she knew from news reports the approximate location
where loggers had found Denise’s body one-half mile west of Ferrari Mill Road.
The majority also makes much of Joanna’s ability on June 22, 1985 (her
third trip to the scene of Denise’s murder) to lead Sergeant Wilson to “within 75
yards” of the spot where loggers 11 months earlier had found Denise’s body.
(Maj. opn., ante, at p. 33.) I am not persuaded. The circumstances of that trip are
highly suspect.
Sergeant Wilson arranged the trip just days before the guilt phase of
petitioner’s capital case was to be submitted to the jury and right after the
prosecution learned that a “critical piece” of evidence linking petitioner to
Denise’s murder -- a man’s reversible black-and-orange jacket found with
Denise’s clothes on April 30, 1985 -- belonged not to petitioner but to Bruce
Nesthus. The prosecutor had already introduced evidence suggesting that
petitioner owned the jacket when Nesthus (who by then had left California)
returned to Placerville to testify. Nesthus inquired about a jacket he had lent to
Denise at the “wandering party” on the night she disappeared. Shown the jacket
found with Denise’s clothes, Nesthus identified it as his and thereafter testified
about lending Denise his jacket. When the prosecutor learned that the jacket was
not petitioner’s, he began “bouncing off the walls,” as Sergeant Wilson testified at
the reference hearing, for fear of losing the case. It was then that Sergeant Wilson
took Joanna on one more trip to the scene of Denise’s murder in the wilderness
area outside Placerville in an effort to bolster the case against petitioner.
12
It is undisputed that on that June 22, 1985, trip, Sergeant Wilson drove
straight to the intersection on Ferrari Mill Road, where he told Joanna to direct
him to the place where she saw petitioner stab Denise. It is also undisputed that it
was only on her third try that Joanna picked the road where Denise’s body had
been found. As Joanna explained at the reference hearing, “body language” hints
by Sergeant Wilson helped her to pick the right location. The referee rejected
Joanna’s account, however, instead believing Sergeant Wilson’s reference hearing
testimony denying any intent to give Joanna hints about the location. Even so, in a
last-ditch effort to make the case against petitioner, Wilson may have unwittingly
used body language to hint to Joanna which road to take to the murder scene.
Moreover, Sergeant Wilson’s credibility is in question. As the referee
found, Wilson and his partner, Detective Harnage, had coerced the false testimony
that Darlene gave against petitioner at his capital trial. (See p. 9, ante.)
Furthermore, although Wilson denied at the reference hearing that Joanna had ever
mentioned to him after the trial that she lied at petitioner’s trial, the referee
accepted Joanna’s testimony at the reference hearing that she told Wilson she
heard Denise scream but did not see petitioner stab Denise, and that thereafter she
rode back to town with petitioner rather than hitchhiking a ride from Joe as she
had testified at trial. Implicit in the referee’s finding is his conclusion that
Wilson’s reference hearing testimony on this point was false.
The circumstance of Bruce Nesthus’s reversible jacket lends additional
support to my conclusion that petitioner has, by a preponderance of evidence,
proven the falsity of Joanna’s trial testimony about witnessing petitioner kill
Denise. Nesthus testified at trial that he lent the jacket to Denise at the wandering
party (see pp. 13-14, ante) after she complained about being cold. The jacket was
found together with the clothes Denise was wearing on the night she was killed.
Thus, Denise must have worn the jacket when she left the party. Joanna testified
13
at trial that when Denise left the party, she walked toward the freeway underpass
and then got into petitioner’s car. Curiously, in Joanna’s many sessions with
Detective Harnage and Sergeant Wilson in November 1984, when she described
what Denise was wearing on the night of her death, Joanna made no mention of
Denise wearing a man’s black-and-orange jacket.
The referee had no persuasive explanation for Joanna’s obvious reluctance
at Darlene’s initial interview by Harnage and Wilson on November 9, 1985 to tell
Darlene about seeing petitioner kill Denise. (The two sheriff’s deputies repeatedly
asked Joanna to describe her crime scene observations to Darlene, but Joanna
would not do so. Ultimately, the sheriff’s deputies revealed to Darlene what
Joanna had told them about petitioner’s killing of Denise.) The referee concluded
that Joanna was reluctant to tell Darlene what she had seen because she was
ashamed of not helping Denise escape from petitioner. It is more likely that, as
Joanna testified at the reference hearing, she thought that Darlene, who had been
petitioner’s girlfriend, knew what had happened to Denise and would catch Joanna
in a lie.
In my view, petitioner has amply satisfied his burden of proving that
Joanna’s trial testimony that she witnessed petitioner kill Denise was a lie. Joanna
repeatedly told others, including her ex-husband, his mother, a friend, and
ultimately Sergeant Wilson, that she had lied at trial. And she twice under oath
recanted her trial testimony, first at a recorded deposition by the El Dorado County
District Attorney and later at the reference hearing.
Other than Darlene’s testimony at trial that petitioner told her about killing
the three girls (see p. 6, ante), only Joanna’s testimony put petitioner at the scene
of any of the three murders. If believed by the jury, that testimony must have had
a devastating effect on petitioner’s defense. Accordingly, the evidence was “ ‘of
such significance’ ” that with “ ‘reasonable probability’ ” (In re Sassounian,
14
supra, 9 Cal.4th at p. 546), it affected the outcome on guilt and on penalty at
petitioner’s trial. Therefore, based on materially false testimony by Joanna, I
would grant petitioner the relief he is seeking.
Even if I were to agree with the majority in rejecting Joanna’s recantations
of her trial testimony, petitioner would still be entitled to relief based on the
materially false testimony of Darlene, as discussed below.
C. Materially False Testimony by Darlene
The referee found that Darlene, petitioner’s former girlfriend, had lied at
petitioner’s trial on three points: (1) That on the night of Denise’s disappearance,
Darlene saw Denise get into petitioner’s car; (2) that a day or two after the
disappearance of Denise’s sister, Debbie, Darlene found Debbie’s unicorn key
chain in petitioner’s car; and (3) that, when Darlene confronted petitioner with the
key chain, he told her he had killed not only Debbie but also Denise and Lynda.
Was Darlene’s false testimony “substantially material or probative” (Pen.
Code, § 1473, subd. (b)(1)) on the question of petitioner’s guilt of killing the three
girls? As stated earlier, false evidence is substantially material or probative if it is
“ ‘of such significance that it may have affected the outcome,’ in the sense that
‘with reasonable probability it could have affected the outcome . . . .’ [Citation.]”
(In re Sassounian, supra, 9 Cal.4th at p. 546, italics in original.) As I explain, this
test is met here.
Of Darlene’s three lies, the most damaging to petitioner’s defense was her
testimony that petitioner told her about killing the three girls. This court has held
that the erroneous admission of a confession is not reversible per se. (People v.
Cahill (1993) 5 Cal.4th 478, 509.) But as the United States Supreme Court has
recognized, evidence of a confession has such a “profound impact on the jury” that
appellate courts “may justifiably doubt [the jury’s] ability to put [a confession] out
of mind even if told to do so” (Arizona v. Fulminante (1991) 499 U.S. 279, 296).
15
To put it succinctly, a confession is “a kind of evidentiary bombshell.” (People v.
Schader (1965) 62 Cal.2d 716, 731, overruled on other grounds in People v.
Cahill, supra, at pp. 509-510, fn. 17.)
The majority concludes that Darlene’s false testimony that petitioner told
her he had killed the three girls was not substantially material because
“overwhelming evidence at trial, separate and apart from [Darlene’s false
evidence] amply supported the jury’s verdict.” (Maj. opn, ante, at p. 44.) In
support, the majority relies first and foremost on Joanna’s trial testimony that she
“witnessed petitioner murder Denise.” (Id. at pp. 44-46.)
I agree that Joanna’s trial testimony, if accepted by the jury, together with
the circumstantial evidence supporting petitioner’s guilt, would amply support the
determination that petitioner killed Denise, Debbie, and Lynda. But without
Joanna’s trial testimony, the circumstantial evidence was very weak.1 Moreover,
the record of petitioner’s capital trial reveals substantial problems with Joanna’s
testimony that she saw petitioner kill Denise, thus calling into question whether
the jury ever seriously considered that testimony in determining petitioner’s guilt.
At the guilt phase of petitioner’s capital trial, the jury heard that Joanna had
lied to the police and others throughout the summer and fall of 1984 about the
disappearance of Denise; defense counsel elicited from Joanna that in her
interviews with the sheriff’s deputies and with Dr. Frank Dougherty of the El
Dorado County Mental Health Department she had “made up stories, lies, and
other scenarios that never happened,” repeatedly asking all three if she had given
1 At oral argument, the Attorney General stressed that the prosecution’s trial
evidence included the testimony of more than 70 witnesses in addition to Darlene
and Joanna. Having reviewed the testimony of those other witnesses, I find it to
be only peripherally relevant. None testified to having witnessed any of the three
murders or to have heard petitioner confess to those murders.
16
enough information to “get [petitioner] arrested”; and he established on cross-
examination that shortly before Joanna told Detective Harnage and Sergeant
Wilson she knew something about the murders, an $8,500 reward was offered for
information leading to the conviction of the killer, and that after telling the
sheriff’s deputies she saw petitioner kill Denise, Joanna had applied for the
reward.
Defense counsel also played for the jury a tape-recording of
Dr. Dougherty’s initial interview with Joanna, whose account of her June 12, 1984
trip to the woods outside Placerville with murder victim Denise and petitioner
differed greatly from her trial testimony describing that same event. Thus, at the
close of the guilt phase of petitioner’s trial, the prosecution must have realized
there was a serious problem with the credibility of its star witness, Joanna. This is
apparent from the prosecutor’s argument to the jury describing “the credibility of
Joanna” as a “major issue,” and suggesting that the jury could “hypothetically take
Joanna” out of the case and evaluate the evidence as if Joanna “never appeared
before this jury and . . . ha[d] nothing whatsoever to do” with the prosecution’s
case. The prosecutor then discussed other evidence as supporting petitioner’s
guilt, stressing that none of that evidence had “one iota to do with Joanna.” He
added that if Joanna “never came here and never said one word, between the
testimony of Darlene and the other witnesses there is a fabric, there is a thread that
goes through the case, and it weaves together with an absolute and compelling
certainty,” a point the prosecutor twice reiterated in closing argument.
The prosecutor’s argument to the jury underscores the materiality of
Darlene’s false testimony, as the Attorney General essentially conceded at the
reference hearing. The Attorney General’s brief filed with the referee on August
28, 1995, states: “If this Court finds that Darlene neither witnessed any of the
murders nor heard a confession of those murders by petitioner and that her trial
17
testimony in that regard (and, likewise, all the pre-offense incriminating
statements Darlene also attributed to petitioner) was false, then respondent
concedes that since there is no physical evidence linking [petitioner] to any of the
three murders, no evidence linking him to Debbie’s murder, and only
circumstantial evidence linking him to Lynda’s murder, this false evidence was
both material and probative as to guilt and to punishment as to Counts II (Lynda)
and III (Debbie). It is also arguable [Darlene’s false evidence] is material and
probative as to Count I (Denise), since in his argument [Deputy District Attorney]
Tepper told the jury that they [sic] could reject Joanna’s testimony in its entirety
and still find sufficient evidence to convict on all three counts.” (Italics added.)
In addition to Darlene’s false testimony that petitioner told her he had killed
Denise, Debbie, and Lynda, she also lied about seeing Denise get into petitioner’s
car the night Denise disappeared and finding Debbie’s key chain in petitioner’s car
a day or two after Debbie disappeared.
Darlene’s false testimony that on June 12, 1984 (the night Denise
disappeared), she saw Denise get into petitioner’s car corroborated Joanna’s trial
testimony that petitioner that night had picked up Denise and then Joanna near the
freeway underpass in Placerville. (Compare Joanna’s trial testimony on this point
(pp. 4-5, ante) with Darlene’s (p. 5, ante).) Because Darlene’s false testimony
tended to support Joanna’s testimony by placing Denise in a car with petitioner on
the night of her murder, that false testimony by Darlene was particularly damaging
to petitioner. Jurors skeptical of Joanna’s credibility, which the prosecutor
acknowledged was a “major issue” in the case, may have been persuaded of the
essential truth of Joanna’s testimony because of the corroborating evidence
provided by Darlene. Darlene’s false testimony about finding Debbie’s key chain
in petitioner’s car shortly after Debbie disappeared, as the deputy attorney general
highlighted in the portion of the brief quoted above, was the only evidence
18
presented by the prosecution at trial to tie petitioner to Debbie’s murder. Thus, it
too was highly damaging.
In determining the materiality of Darlene’s false testimony – that she saw
Denise get into petitioner’s car the night Denise disappeared, that she found
Debbie’s key chain in petitioner’s car a day or two after Debbie disappeared, and
that petitioner admitted to her that he had killed Denise, Debbie, and Lynda – this
court must view it “objectively,” in light of all “relevant circumstances” to decide
whether there is a “reasonable probability” that the false testimony affected the
outcome of the trial. (In re Sassounian, supra, 9 Cal.4th at p. 546.) Thus, we
must consider the potential effect of Darlene’s false testimony on the jury in light
of the other evidence favoring the prosecution at trial. Putting aside the testimony
of Joanna that defense counsel had effectively impeached, leading the prosecutor
to suggest to the jury that Joanna’s testimony was unnecessary to the jury’s
determination of petitioner’s guilt, the prosecution’s case consisted of this scant
circumstantial evidence: Petitioner disliked the Oz-crowd girls, which included
murder victims Denise, Debbie, and Lynda, and he had made callous and
threatening remarks about them; he was seen with Lynda the night she
disappeared, and the next day he had a scratch on his forehead; he told
contradictory stories about whether he knew Lynda; he kept knives, guns, and
handcuffs in his car; and he was known to have frequented the forested areas
where the girls’ bodies were found. Considering the totality of circumstances in
this case, I conclude that Darlene’s false testimony that she saw Denise get into
petitioner’s car the night Denise disappeared, that she found Debbie’s keychain in
petitioner’s car shortly after Debbie disappeared, and that petitioner told her he
killed Denise, Debbie and Lynda was “substantially material or probative” (Pen.
Code, § 1473, subd. (b)(10)) on the question of petitioner’s guilt.
19
In concluding that Darlene’s false testimony was not material, the majority
adopts the referee’s finding that defense counsel’s cross-examination had “torn to
pieces” Darlene’s story of petitioner’s confession. (Maj. opn., ante, at p. 42.) The
referee noted that when defense counsel questioned Darlene about the details of
what she claimed petitioner had told her about the killings, she “could not
remember the lies she had stated on direct [examination], so [she] either denied
them or made [up] new and more obvious lies.” From this the majority concludes
that the confession’s believability was “open to question” and would not have
been accepted by the jury. (Maj. opn., ante, p. 44.)
I agree that under intense questioning by defense counsel about certain
details of the three killings, Darlene’s confusion was evident. But in my view her
uncertainty did not completely undercut the basic thrust of her testimony—that
petitioner, her then-boyfriend and near-constant companion, had told her of killing
Denise, Lynda, and Debbie. Moreover, as explained on page 11, ante, whether
false evidence is material, that is, whether it could have affected the outcome of
the trial (see In re Sassounian, supra, 9 Cal.4th at p. 546), presents a mixed
question of law and fact that this court reviews independently (see In re Johnson,
supra, 18 Cal.4th at p. 461; In re Cordero, supra, 46 Cal.3d at pp. 180-181).
Thus, I do not here defer to the referee’s findings on the materiality of the false
testimony. The false evidence included testimony attributing to petitioner a
confession to killing the three teenage victims, which likely would have made a
strong impact on the jury. In light of defense counsel’s effective impeachment of
Joanna (who testified that she saw petitioner kill Denise), the prosecutor’s
invitation for the jury to find petitioner guilty without considering Joanna’s
testimony, and the prosecution’s otherwise relatively weak circumstantial case
against petitioner, there is at least a “reasonable probability” that Darlene’s false
evidence “could have affected” the jury’s determination of petitioner’s guilt. (See
20
In re Sassounian, supra, 9 Cal.4th at p. 546.) Accordingly, based on the false
testimony of Darlene, petitioner is entitled to habeas corpus relief. (Pen. Code,
§ 1473, subd. (b)(10).)
CONCLUSION
For the reasons given above. I would grant the petition for a writ of habeas
corpus.
KENNARD, J.
21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Cox
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S004507
Date Filed: June 9, 2003
__________________________________________________________________________________
Court: Superior
County: El Dorado
Judge: Terrance M. Finney
__________________________________________________________________________________
Attorneys for Appellant:
Harvey R. Zall, Fern M. Laethem and Lynne S. Coffin, State Public Defenders, under appointments by the
Supreme Court, Barry P. Helft, Assistant State Public Defender, Joel Kirshenbaum, Michael Pescetta,
Kathleen M. Scheidel, Musawwir Spiegel, Valerie Hriciga and Mary McComb, Deputy State Public
Defenders; Anderson and Zimmer and Richard Zimmer for Petitioner Michael Anthony Cox.
__________________________________________________________________________________
Attorneys for Respondent:
John K. Van de Kamp, Daniel E. Lungren and Bill Lockyer, Attorneys General, Steve White, George
Williamson and David P. Druliner, Chief Assistant Attorneys General, Arnold O. Overoye and Robert R.
Anderson, Assistant Attorneys General, William G. Prahl, Jane N. Kirkland, Edmund D. McMurray, Harry
Joseph Colombo, John G. Mclean and R. Todd Marshall, Deputy Attorneys General, for Respondent State
of California.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry P. Helft
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Mary McComb
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
R. Todd Marshall
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5285
2
Opinion Information
| Date: | Docket Number: |
| Mon, 06/09/2003 | S004507 |
Parties
| 1 | Cox, Michael Anthony (Petitioner) Represented by Office Of The State Public Defender-Sac Mary McComb, deputy 801 "K" Street, Suite 1100 Sacramento, CA |
| 2 | Cox, Michael Anthony (Petitioner) Represented by Office Of The State Public Defender-Sf Barry Helft 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Cox, Michael Anthony (Petitioner) Represented by Richard W. Zimmer Andersen & Zimmer 385 Grand Ave., Suite 300 Oakland, CA |
| 4 | The People (Respondent) Represented by Attorney General - Sacramento Office Attn: R. Todd Marshall, deputy P.O. Box 944255 Sacramento, CA |
| Disposition | |
| Jun 9 2003 | Opinion: OSC discharged |
| Dockets | |
| Feb 29 1988 | Petition for writ of (AA-related) Habeas Corpus filed by State Public Defender. |
| Apr 26 1988 | Informal Response filed (AA) respondent. |
| May 6 1988 | Reply to Informal Response filed (AA) reply to informal response. (14 pp.) |
| Aug 18 1988 | Order to show cause issued The Director of the Dept. of Corrections is ordered to show cause before this court, when the matter is ordered on calendar: (1) why trial counsel for petitioner was not ineffective for failing to interview Kevin Sindle and Sally Sanders; (2) why the El Dorado County District Attorney's Office did not violate petitioner's due process rights in failing to disclose to petitioner's trial counsel material evidence in the possession of the prosecution related to the credibility of witnesses Joe and Linda Crespin; and (3) why the El Dorado District Attorney did not violate Penal Code section 1473 in presenting false evidence through the guilt-phase testimony of Darlene Sindle that was substantially material or probative on the issue of guilt or punishment. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218; People v. Pope (1979) 23 Cal.3d 412, 425; United States v. Bagley (1985) __U.S.__, 105 S.Ct. 3375; People v. Ruthford (1975) 14 Cal.3d 399; People v. Phillips (1975) 41 Cal.3d 29, 46-48; In re Ferguson (1971) 5 Cal. 3d 525; In re Wright (1978) 78 Cal.App.3d 788; In re Hall (1981) 30 Cal.3d 408.) The matter is ordered consolidated with People v. Michael Anthony Cox, S004703. (Votes: Mosk, Arguelles, Kaufman, and Broussard, J.J.) |
| Aug 18 1988 | Note: Due to consolidation, future docket entries are under automatic appeal, no. S004703. |
| Feb 20 1991 | Change of Address filed for: State Public Defender. |
| Feb 20 1991 | Note: For previous filings, see docket no. S004703. |
| Oct 31 2001 | Previously consolidated cases ordered severed People v. Michael Anthony Cox (S004703) and In re Michael Anthony Cox on Habeas Corpus (S004507) previously consolidated by this court's order of 8/18/1988, are hereby severed. |
| Feb 3 2003 | Case ordered on calendar 3-13-03, 1:30pm, S.F. consolidated oral argument with S004703, Peo v. Cox |
| Feb 6 2003 | Received letter from: State P.D. with oral argument focus issues and requesting an additional 15 minutes per side for oral argument, and advising that two attorneys will argue for Cox. |
| Feb 11 2003 | Request Denied The State Public Defender's request to augment the time for oral argument in the above-entitled matters is denied. The matters are to be argued together and each party is allotted a total of 45 minutes of argument. The State Public Defender's request to have two attorneys participate in oral argument in these matters is granted. |
| Mar 13 2003 | Cause argued and submitted |
| Jun 9 2003 | Opinion filed: OSC discharged The petition for writ of habeas corpus will be resolved by separate order. Majority Opinion by Moreno, J. -- joined by George C.J., Baxter, Werdegar, Chin & Brown, JJ. Dissenting Opinion by Kennard, J. |
| Jun 25 2003 | Petition for writ of habeas corpus denied The petition for writ of habeas corpus, filed on February 29, 1988, and the supplemental petitions filed on April 6, 1990 and August 5, 1994 are denied. All claims, including those raised in the Traverse filed on November 15, 1988, are denied on the merits. Kennard, J., would grant petitioner relief in this matter for the reasons experesssed in her dissenting opinion in In re Michael Cox on Habeas Corpus (S004507), filed June 9, 2003. George, C.J., was absent and did not participate. |
