Filed 7/26/07
IN THE SUPREME COURT OF CALIFORNIA
In re JAMES EDWARD HARDY
) S022153 & S093694
on Habeas Corpus.
I. INTRODUCTION
Petitioner James Edward Hardy was convicted in 1983, along with
codefendant Mark Anthony Reilly, of the first degree murders of Nancy Morgan
and her young son, Mitchell Morgan, and of conspiracy to commit murder to
collect life insurance proceeds. (Pen. Code, §§ 187, 182.)1 The jury also
sustained six special-circumstance allegations against both Hardy and Reilly,
finding as to each murder that it was committed for financial gain, that the
defendants committed a multiple murder and that they killed while lying in wait.
(§ 190.2, subd. (a)(1), (3), (15).) The jury set the penalty for both defendants at
death. On appeal, this court affirmed, striking one superfluous multiple-murder
special circumstance. (People v. Hardy (1992) 2 Cal.4th 86.)
Our prior opinion in this matter was not the end of the legal road for
petitioner Hardy. After the United States Supreme Court denied his petition for a
writ of certiorari (Hardy v. California (1992) 506 U.S. 987), he filed his first
petition for a writ of habeas corpus with this court (In re Hardy, S022153
1
All further statutory references are to the Penal Code unless otherwise
specified.
1
(Hardy I)). Because the petition alleged facts sufficient to demonstrate a prima
facie case for relief from the penalty judgment (People v. Duvall (1995) 9 Cal.4th
464), we issued an order directing respondent to show cause “why petitioner is not
entitled to reversal of the penalty judgment because his trial attorney rendered
constitutionally ineffective assistance of counsel by failing to call, at the penalty
phase of the trial, available witnesses who would have presented evidence of
mitigating circumstances.” (Italics added.) After receiving briefing, we directed a
referee to hold a hearing and take evidence on two disputed questions of fact.
After receiving additional briefing, we amended the order of reference to add an
additional question for the referee’s consideration.
Some delay ensued, but the referee eventually held a hearing at which
several witnesses testified. The referee filed his report with this court in 1999.
Petitioner then filed a second petition for a writ of habeas corpus based on facts
adduced at the evidentiary hearing. (In re Hardy, S093694 (Hardy II).) This new
petition alleged facts sufficient to demonstrate a prima facie case for relief from
the guilt judgment. Accordingly, we issued a second order to show cause on two
interrelated issues. Our order stated: “The petition for writ of habeas corpus, filed
December 13, 2000, has been read and considered. The Director of Corrections is
ordered to show cause before this court at its courtroom, when the proceeding is
ordered on calendar, why petitioner is not entitled to reversal of his guilt judgment
because [1] he is innocent of the capital crimes of which he was convicted, [in
that] a third party named Calvin Boyd committed the murders, and [2 that]
petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel
by failing to present evidence demonstrating petitioner’s innocence.” (Italics
added.)
We consolidated Hardy I and Hardy II on April 18, 2007, and now reach
the following conclusions: (1) Because petitioner’s allegations in Hardy II are
2
based on facts found by the referee as a result of the evidentiary hearing in
Hardy I, a second hearing is unnecessary; (2) petitioner’s allegations, to the extent
they were sustained by the referee, fail to demonstrate petitioner is actually
innocent of the crimes for which he was convicted because they do not undermine
the prosecution’s entire case or point unerringly to innocence; (3) petitioner’s
allegations that a third party named Calvin Boyd committed the murders, largely
sustained by the referee, demonstrate his trial counsel’s representation was
deficient because he failed, without a supportable tactical reason, to investigate
reasonably available evidence of third party culpability; (4) such deficient
representation nevertheless does not require reversal of the guilt judgment because
counsel’s failure to investigate did not undermine the prosecution’s theory that
petitioner conspired to commit the murders, and such conspiracy rendered
petitioner liable for first degree murder irrespective of the possibility that a third
party actually killed the victims; (5) the allegations of third party culpability, as
sustained by the referee, require we vacate the penalty judgment because, had the
jury entertained a reasonable doubt that petitioner was the actual killer and
concluded he was merely a coconspirator, there is a reasonable probability it
would have returned a sentence of life instead of death; and (6) in light of the latter
conclusion, we discharge the order to show cause in Hardy I and dismiss that
petition as moot.
II. BACKGROUND2
Clifford and Nancy Morgan lived in Van Nuys and had a son, Mitchell,
who was eight years old at the time of the murders. Clifford Morgan (Morgan)
2
Facts of the case, especially those related to codefendants Reilly and
Clifford Morgan, are recounted in greater detail in People v. Hardy, supra,
2 Cal.4th at pages 118-126.
3
devised a plan to kill his wife and son in order to collect on some unusually large
life insurance policies he had purchased. He enlisted the assistance of Reilly, a
much younger coworker over whom he had acquired some influence. At this time,
Reilly and petitioner, as well as many of the witnesses and coconspirators in this
case, lived in the same apartment complex on Vose Street in Van Nuys. The depth
and breadth of the ensuing conspiracy to kill the victims need not be recounted
here in full; suffice it to say, Reilly agreed to Morgan’s plan and sought a partner
for the planned murders. Reilly’s attempt to hire a kickboxer named Marc
Costello to kill the victims came to naught. Reilly then turned to fellow Vose
Street resident Calvin Boyd3 and his friend Marcus.4 Many of the residents of the
Vose Street apartment complex were acquainted with Boyd, a key player in
petitioner’s present collateral challenge to his convictions, who, unknown to them,
was at the time a fugitive from justice. After much preliminary involvement in the
conspiracy, Boyd (according to his trial testimony) declined to participate in the
murders of Nancy and Mitchell Morgan due to Reilly’s inability to pay him any
money or cocaine in advance.
Reilly then turned to petitioner as a third option, believing he could
convince him to commit the murders. A few weeks before the murders, Reilly
told his friend Joe Dempsey that petitioner might agree to assist in the murders.
Sometime later, Reilly told his friend Michael Mitchell that petitioner had agreed
to help him.
3
Boyd was also known as Washington Kelvin Boyd, Calvin McKay and
Kelvin Boyd. We will refer to him by his apparently true name, Calvin Boyd.
4
Marcus, whose last name is unknown and who was not produced at the
evidentiary hearing, was apparently a confidante or close acquaintance of Boyd
around the time of the murders.
4
Debbie Sportsman provided critical evidence against Reilly and about the
conspiracy in general. She met Reilly in April 1981 and began an intimate
relationship with him. While having dinner with Sportsman and her parents,
Reilly mentioned that Morgan wanted to have his wife killed in order to collect on
some insurance policies. Sportsman’s mother thought this was “just talk.” As
Sportsman later found out, however, Reilly was quite serious. He told her he had
agreed to help Morgan find someone to kill his wife. In return, Morgan had
agreed to allow Reilly to live in Morgan’s home and to manage a bar that Morgan
intended to open.
In May 1981, Morgan moved to Carson City, Nevada, ostensibly for
business reasons, but more probably to establish an alibi. Sometime in the night of
May 20-21, 1981, two persons alleged to be petitioner and Reilly went to
Morgan’s Van Nuys home, entered with a key provided by Morgan, cut the chain
lock with bolt cutters and went to the back bedroom where Nancy slept. Because
her husband was away from home, their son, Mitchell, was sleeping in his
mother’s bedroom. The assailants stabbed Nancy and Mitchell Morgan to death.
Evidence showed Nancy was stabbed 45 times and her son 21 times, including
multiple wounds on his neck. Police found a pillow soaked in blood with several
puncture marks, indicating the assailants had stabbed the victims through the
pillow. Experts testified that physical evidence suggested at least two persons
were responsible for the slayings. The estimated time of death was between 3:30
and 5:30 a.m.
The conspiracy began to unravel almost immediately. After the murders,
Reilly admitted his guilt to Sportsman and made numerous other incriminating
admissions to her, including that victim Nancy Morgan had said “Please don’t kill
me,” that more than one perpetrator was involved, that bolt cutters had been used
5
to cut the chain lock on the door (a fact not made public by the police) and that a
fish knife had been used in the killings.
Boyd testified that shortly after the murders, when he and Reilly were
together in the apartment’s laundry room, Reilly admitted that he and petitioner
Hardy were the killers. Boyd also testified that Reilly showed him some
boltcutters he had recently purchased.
Michael Mitchell, Reilly’s roommate, testified that he came home from a
baseball game the night of the murders and went to sleep sometime after
11:00 pm. At that time, no one else was in the apartment. He got up around
midnight and saw petitioner, Reilly, Colette Mitchell (apparently no relation) and
possibly a neighbor, Steven Rice, in the apartment. Later that night, he heard male
voices in the apartment and some people taking showers. The next morning, he
found wet towels in the bathroom, suggesting someone had taken a shower, but he
saw no evidence of blood.
Boyd testified that the morning after the murders, sometime after 8:00 a.m.,
he walked through Steven Rice’s apartment as a shortcut to the street, something
he often did. There, he saw Reilly and petitioner sleeping, thereby placing the two
men together shortly after the crimes. Boyd also testified he saw Rice and Colette
Mitchell in the apartment.
Morgan’s purchase of an unusually large amount of life insurance shortly
before the murders was suspicious, as were his statements to a neighbor shortly
before the murders that his wife was worth more dead than alive and he expected
she would die before him. A web of circumstantial evidence, not relevant to the
instant collateral attack, linked Reilly to Morgan. In addition, Reilly could not
explain how a stain of human blood came to be on his shoe. No physical
evidence, such as blood, hair, fingerprints or footprints linked petitioner to the
murders.
6
Colette Mitchell, petitioner’s girlfriend at the time, gave testimony that was
important in connecting him to the crimes. She had initially given petitioner an
alibi, testifying at the preliminary hearing that she was with him the entire night of
the murders. By the time of trial she had changed her story and admitted she had
perjured herself at the preliminary hearing. Although she often claimed she could
not remember many of the details of the events in question and admitted she
intentionally tried to forget things about the case, she no longer was sure petitioner
was with her the entire night of the murders. She testified at trial under a grant of
immunity, but admitted that even after receiving immunity and consulting an
attorney, she contacted petitioner in jail intending to assist him.
Nevertheless, Colette testified to the following: On the night of the
murders, she was working at a restaurant. Reilly, petitioner and Steven Rice met
at the restaurant shortly after 9:00 p.m., and Colette served them drinks. The four
then returned to the Vose Street apartments around 10:00 p.m. to “party” and use
cocaine. They also used a beer bong.5 Colette admitted to doing several large
lines of cocaine and drinking at least three beers using the beer bong. She
quarreled with petitioner, left Reilly’s apartment and went to Rice’s apartment
next door.6 Sometime between midnight and 2:00 a.m., she and Rice went out and
purchased more beer. After she returned, petitioner sought her out at Rice’s
apartment and told her not to leave him because he “needed her” that night.
Although she had consumed an unusually large amount of cocaine, which usually
5
A beer bong is “a funnel-type device which enables the user to pour beer
directly down his throat and into his stomach.” (People v. Hardy, supra, 2 Cal.4th
at p. 182.)
6
Reilly lived in an apartment with Michael Mitchell. Steven Rice rented the
apartment next to them, and at the time petitioner lived with Rice.
7
had the effect of keeping her awake, she testified she fell asleep or passed out in
Rice’s apartment sometime thereafter and did not awaken until around 11:00 a.m.
the next morning. Hardy was asleep next to her, and Reilly was asleep on the
sofa.
Colette testified she misled police by telling them she was with petitioner
the entire night. Although immediately after the crimes she was sure she had been
with both Reilly and petitioner the entire night, she had changed her mind by the
time of trial. At trial, she claimed she was either asleep or passed out for much of
the night and thus did not know if petitioner left the apartment or not. Reilly told
her once that he and petitioner had left the apartment while she was asleep, but
another time told her they had not left. When speaking with petitioner after the
murders, they discussed his alibi “all the time.”
Some of Colette’s testimony implicated petitioner directly in the murders.
For example, prior to the murders, petitioner led her to believe he was going to
steal something from someone to enable an unnamed person to collect on an
insurance policy. Petitioner told her at least twice that he had been to the victims’
home the night of the murders. First, he told her “that he went to the house and
that the people were still alive because he heard them snoring.” Later he told her
“that he went to the house and that they [had] already been dead, killed.” Another
time, he told her: “I’ll say one thing; we were at the house.” These statements
were contradicted by other of petitioner’s statements to her, such as that “he didn’t
do it.” In addition, although Reilly admitted to Colette that he knew the identity of
the killers, petitioner disclaimed such knowledge. When she asked Reilly directly
whether petitioner was the killer, Reilly told her: “No.” When she asked
petitioner himself, he also answered in the negative. On cross-examination,
Colette admitted petitioner had never told her he actually killed either victim.
8
Colette recounted other statements petitioner had made that, although not
directly implicating him in the murders, suggested he was at least a coconspirator.
For example, he told her the crime was to be accomplished by cutting a chain,
entering the back door and then making it appear as if a robbery had occurred.
Petitioner was to receive a portion of $40,000 or $50,000, but in fact received only
$1,000. She remembered the $1,000 because she put the stack of bills in a
particular cedar box. Petitioner told her that Morgan was not worried about the
delay the trial caused because his insurance proceeds were earning 12¾ percent
interest; the less she knew about the crimes, the better off she would be; Reilly
was in charge of the situation; people who said the murder was committed by
more than one person were wrong because petitioner “ ‘[knew] for a fact it was
one’ ”; petitioner took something from Morgan’s home to make it look like a
robbery; and the killers used wire cutters. Colette also testified Reilly had told her
that Boyd and his friend Marcus were supposed to commit the crimes but backed
out because Reilly declined to go with them.
Petitioner’s connection to a rifle and some shoes also provided evidence of
his participation in the conspiracy. Clifford Morgan had reported several items
missing in the attack, including an M-1 carbine World War II-era rifle. Colette
testified that petitioner, although in pretrial detention, asked her to ask his brother,
John Hardy, to retrieve and dispose of an M-1 carbine rifle in Reilly’s apartment.
She complied, and John Hardy thereafter retrieved the rifle and took it to his
girlfriend’s house. He later turned it in to police. In addition, Colette testified
petitioner told her police had discovered a footprint at the crime scene and asked
her to retrieve and destroy some of his shoes. She did so, throwing the shoes in
the garbage.
Petitioner, Reilly and Clifford Morgan were tried together in Los Angeles
County Superior Court. Petitioner was represented by Los Angeles County
9
Deputy Public Defender Michael Demby. At trial, Morgan denied conspiring with
Reilly to commit the murders, but testified that while in pretrial detention, Reilly
admitted he had attempted to find someone who would kill Morgan’s wife, but had
failed in the attempt and then let the matter drop. On Demby’s advice, petitioner
did not testify. In fact, Demby presented no evidence at the guilt phase of the trial,
but rested on the state of the People’s evidence. Reilly also declined to testify.
Petitioner and Reilly were convicted of two counts of first degree murder
(§ 187), one count of conspiracy to commit murder to collect life insurance
proceeds (§ 182) and several special-circumstance allegations (§ 190.2, subd.
(a)(1), (3), (15)). Clifford Morgan was also convicted of capital murder charges,
but after the guilt phase, the trial court severed his case from petitioner’s and
Reilly’s penalty trial due to his failing health. Morgan, the apparent mastermind
of the deadly conspiracy, died of bone cancer before the penalty phase of his
separate trial could be held.
At petitioner’s penalty phase, the prosecution introduced into evidence
three photographs of the crime scene, including the victims, that had been
excluded from the guilt phase. In addition, the prosecution presented evidence of
a 1980 domestic disturbance in which police had found petitioner marching with a
rifle, military style, apparently unaware of his surroundings. At the request of the
police, petitioner put the rifle as well as two knives on the ground, but then
brandished a nunchaku and assumed a martial arts fighting stance. He stayed in
that stance for five or 10 minutes, but eventually agreed to lay down his nunchaku
if one of the officers would holster his revolver. The matter ended peacefully, and
petitioner explained he had been in a quarrel with his family. The rifle was not
loaded. Petitioner later pleaded guilty to two misdemeanors and was placed on
probation. (People v. Hardy, supra, 2 Cal.4th at pp. 126-127.)
10
Petitioner’s mother, Carolyn Hardy, testified at the penalty phase and
recalled that petitioner had had a fight with his brother John, punching him and
tearing a gold chain off his neck. When Carolyn called the police, petitioner
kicked down her door. She also testified that the nunchakus belonged to Robert,
petitioner’s other brother. Robert had threatened to commit suicide, but petitioner
did not believe him. When Robert in fact committed suicide, petitioner blamed
himself and jumped off a cliff, breaking both his legs. (People v. Hardy, supra,
2 Cal.4th at p. 127.) Petitioner’s mother believed he needed psychiatric help.
In mitigation, Carolyn Hardy recalled that when petitioner was a teenager,
he “participated in a program called Outward Bound, which involved camping and
hiking in Colorado. He was chosen for the program because of his high scholastic
potential.” (People v. Hardy, supra, 2 Cal.4th at p. 127.) Defense counsel
presented no other mitigating evidence. During closing argument, counsel argued
the jury should return a verdict of life due to a lingering doubt about petitioner’s
guilt.
III. HARDY I
Petitioner filed his petition for a writ of habeas corpus in Hardy I with this
court on July 26, 1991, and filed a set of supplemental allegations on February 24,
1992. In those filings, petitioner alleged his trial attorney was constitutionally
ineffective in three ways: (1) for failing to call available witnesses at the penalty
phase who would have provided mitigating evidence; (2) for failing to investigate
to determine whether such witnesses existed; and (3) for making an unreasonable
tactical decision to rely solely on a lingering doubt defense at the penalty phase.
For example, petitioner alleged in Hardy I that several family members and
friends, if called, would have testified to his positive attributes and difficult
upbringing. Petitioner alleged that his father was schizophrenic and had
physically abused him as a child, one time holding him out of a 12th floor window
11
and threatening to drop him. After his father’s hospitalization, petitioner alleged
he assumed the role of father figure to his siblings and the family lived in a poor
area of Newark, New Jersey. Declarations accompanying the petition in Hardy I
alleged that petitioner was a caring and considerate child who did well in school
and that he did not finish high school, leaving school at age 16 to marry Patricia
May, the mother of his child. The declarants asserted petitioner had a second child
before divorcing, and that later in life, petitioner was a devoted and loving father.
These declarants stated it was inconceivable petitioner could have murdered a
child.
In addition to the suicide of petitioner’s brother, the petition in Hardy I
revealed two other major incidents that greatly affected him. First, Tina, his live-
in lover whom he planned to marry, was killed in a car accident. Declarations
filed in support of the petition in Hardy I state that after Tina died, petitioner
“didn’t want to do anything with his life [and] had no ambition for a long time.”
A second incident involved petitioner’s involuntary commitment to a state mental
hospital after a drug-induced psychotic episode. The tentative diagnosis of mental
health professionals was chronic undifferentiated schizophrenia.
Petitioner’s children, who were ages 11 and eight at the time of trial, declared that
they would have testified they loved petitioner, that he was a “very good and caring
father,” and that they would have asked the jury to spare their father’s life. Petitioner
alleged Demby provided no reason why he did not call the children to testify at the
penalty phase. In his supplemental allegations, petitioner alleged his trial attorney should
have presented evidence that petitioner, then working as a municipal bus driver, had
acted heroically when he intervened to stop the robbery of an elderly woman on his bus.
Petitioner allegedly sustained serious injuries as a result.
After receiving appropriate briefing, this court issued an order directing the
Director of Corrections to show cause “why petitioner is not entitled to reversal of
12
the penalty judgment because his trial attorney rendered constitutionally
ineffective assistance of counsel by failing to call, at the penalty phase of the trial,
available witnesses who would have presented evidence of mitigating
circumstances.” (Italics added.)
We then referred the matter to a referee to resolve disputed allegations of
fact. Our order of reference, as later amended for reasons unnecessary to relate
here, provided: “(1) Did petitioner Hardy engage in an act of heroism while
employed as a driver for the Southern California Rapid Transit District?
[¶] (2) Was defense counsel Michael Demby made aware of the facts surrounding
the incident? [¶] (3) What were Mr. Demby’s reasons why he did not present
evidence of this incident, or the uncontradicted evidence of other available
witnesses who would have provided mitigating evidence at the penalty phase of
the trial? [¶] (4) Were Mr. Demby’s reasons supportable?”
After an evidentiary hearing, the referee filed his report on September 21,
1999. Petitioner then filed his petition for a writ of habeas corpus in Hardy II,
alleging—based on facts adduced at the hearing for Hardy I—that he was entitled
to relief not just from his penalty judgment but from his guilt judgment as well.
Based on some of the allegations in the Hardy II petition, we issued an order to
show cause on February 14, 2001, and have held Hardy I in abeyance. As we
explain post, because we conclude petitioner is entitled to relief from his penalty
judgment based on the allegations in his Hardy II petition, we address that petition
here and dismiss the Hardy I petition as moot.
13
IV. HARDY II
A. Preliminary Issues
1. A Second Evidentiary Hearing Is Unnecessary
Although petitioner presented numerous allegations in Hardy II attacking
both his guilt and penalty judgments, we issued an order to show cause as to only
two interrelated claims: Is petitioner “entitled to reversal of his guilt judgment
because [1] he is innocent of the capital crimes of which he was convicted, [in
that] a third party named Calvin Boyd committed the murders, and [2] because
petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel
by failing to present evidence demonstrating petitioner’s innocence[?]” Issuance
of the order indicates we concluded petitioner’s allegations on these issues state a
prima facie case for relief. We have also concluded that the allegations were made
without substantial delay; the petition asserts that its allegations are timely, and
respondent does not allege otherwise.
Respondent denies the facts alleged in the Hardy II petition, and petitioner
reasserts his factual allegations in his traverse; hence, we normally would order an
evidentiary hearing before a referee to determine the truth of the disputed
allegations of facts: “[I]f the return and traverse reveal that petitioner’s
entitlement to relief hinges on the resolution of factual disputes, then the court
should order an evidentiary hearing. (Pen. Code, § 1484.) Because appellate
courts are ill-suited to conduct evidentiary hearings, it is customary for appellate
courts to appoint a referee to take evidence and make recommendations as to the
resolution of disputed factual issues.” (People v. Romero (1994) 8 Cal.4th 728,
739-740.) Following receipt of the referee’s report, we would entertain the
parties’ exceptions to its accuracy. (See In re Malone (1996) 12 Cal.4th 935, 941;
14
In re Avena (1996) 12 Cal.4th 694, 709-710; In re Branch (1969) 70 Cal.2d 200,
203.)
Under unusual circumstances, however, this court may decline to order a
hearing and simply decide the case. For example, “[i]f the written return admits
allegations in the petition that, if true, justify the relief sought, the court may grant
relief without an evidentiary hearing. [Citations.] Conversely, consideration of
the written return and matters of record may persuade the court that the
contentions advanced in the petition lack merit, in which event the court may deny
the petition without an evidentiary hearing.” (People v. Romero, supra, 8 Cal.4th
at p. 739.) Apparently invoking this latter option, respondent asserts the instant
petition “may be denied without an evidentiary hearing.”
We agree an evidentiary hearing is not required to resolve the issues raised
in the present petition, but for a different reason. The circumstances of this case
are unusual, in that our referee has already held one evidentiary hearing (albeit in
response to allegations in the petition for Hardy I) and petitioner’s present factual
allegations are based on both evidence presented at that hearing that has already
been evaluated by the referee, and on witnesses who testified at the hearing whom
the referee has already found credible. Stated differently, petitioner has already
presented evidence in a contested hearing, and the referee has already determined
the truth of facts alleged, including the credibility of various witnesses. Moreover,
as we explain post, we largely reject respondent’s exceptions to the accuracy of
the referee’s conclusions.
Respondent’s denials in Hardy II of the same facts alleged and found true
in Hardy I cannot undermine the referee’s considered factual conclusions at this
late date. Holding a second evidentiary hearing on those facts would also be
futile. Respondent had an adequate opportunity to examine the witnesses who
testified at the hearing in Hardy I. Indeed, one witness was ordered returned from
15
Kentucky to permit respondent to cross-examine him. Although respondent
contends he did not cross-examine petitioner’s witnesses (e.g., Raynall Burney,
James Moss, Rickey Ginsburg and Michael Small) “with an interest and motive
similar to that which respondent has in the present habeas corpus proceeding,” he
does not persuasively explain in what different fashion he would have conducted
his cross-examination. Although respondent objected to the examination of these
witnesses on the ground that questions of factual innocence were beyond the scope
of the reference order, the referee overruled the objection. (See discussion, post.)
Accordingly, respondent had every incentive to aggressively question these
witnesses at the evidentiary hearing in Hardy I.
Nor is it likely respondent could show how he would have conducted his
cross-examination differently. The third question in our amended order of
reference for Hardy I stated: “(3) What were Mr. Demby’s reasons why he did not
present . . . the uncontradicted evidence of other available witnesses who would
have provided mitigating evidence at the penalty phase of the trial?” Evidence of
Boyd’s culpability would have constituted strong mitigating evidence for the
penalty phase, supporting defense counsel’s strategic choice to rely on a lingering
doubt defense; thus, respondent had ample incentive to demonstrate why counsel
would have been justified in not presenting this evidence. Moreover, the record
reveals no lack of effort on respondent’s part to discredit petitioner’s witnesses on
cross-examination. Accordingly, to the extent petitioner’s present claims for relief
are based on facts already litigated and determined by the referee, respondent’s
16
continued disputation of those facts is fruitless, and no reason appears to justify
the holding of an additional, superfluous evidentiary hearing.7
2. Was Evidence of Third Party Culpability Outside the Scope of Our
Reference Order?
In response to the referee’s report in Hardy I, respondent—before this court
issued its order to show cause in Hardy II—filed his exceptions to the report.
Respondent raises among those exceptions an important threshold question: Was
evidence of Boyd’s possible guilt of the murders outside the scope of our order of
reference in Hardy I? Recalling that our order to show cause in Hardy I
concerned the penalty phase only, respondent, as he did before the referee, argues
that “nothing in the habeas corpus petition [in Hardy I] or the supplemental
pleadings thereto filed by petitioner set forth a claim of factual innocence [and]
this Court obviously did not have a factual innocence claim before it for
consideration when it filed the amended reference order in July of 1994.” As we
explain, we conclude the referee did not err in ruling the issue was within the
scope of our reference order.
At the outset of the evidentiary hearing in Hardy I, respondent objected to
third party culpability evidence he anticipated petitioner would present, arguing
that such evidence was not within the terms of our amended reference order. The
referee declined to rule on the motion, wishing to see the direction the evidence
would take, but later raised the issue sua sponte, essentially having respondent
renew his objection. After hearing from both sides, the referee ruled he would not
strike the evidence, explaining: “I am going to deny [respondent’s] motion to
7
As we explain at various points post, we accord no weight to those factual
allegations for which the referee did not make any factual findings. (See, e.g., pt.
IV.B.8., post.)
17
strike [the evidence] because I think it [is] relevant to the lingering doubt issue.”
The referee stated, however, that the evidence of third party culpability was
beginning to appear cumulative and he reserved the right to control the evidence
on that ground.
Petitioner in Hardy I alleged his trial attorney was ineffective at the penalty
phase for failing to present available mitigating evidence. He claimed Demby
should have presented evidence that he engaged in an act of heroism, coming to
the aid of a bus passenger being robbed, at great peril to himself, and evidence of
his Outward Bound experience as a teenager. After referencing those issues, this
court’s order asked the referee to determine Demby’s reasons for not presenting
this available mitigating evidence and whether his reasons were “supportable.”
In order for the referee to decide whether Demby’s reasons were
supportable, the referee was required to assess the overall strength of the
mitigating evidence available to counsel. If strong mitigating evidence was
available (e.g., family history, mental illness), counsel’s decision to forgo it was
more likely unreasonable. Similarly, if the available evidence supporting lingering
doubt was weak, Demby’s tactical decision to rely solely on that defense at the
penalty phase would be questionable. On the other hand, if persuasive evidence of
third party culpability was reasonably available, Demby’s failure to discover and
present such evidence would tend to suggest his strategic decision to rely solely on
a lingering doubt defense was an ill-considered choice, unsupported by a
reasonable investigation. Accordingly, we conclude evidence of third party
culpability was properly admitted and considered by the referee, as it was within
the scope of our order of reference.
We turn now to petitioner’s allegations in this proceeding and an
assessment of the referee’s findings following the contested evidentiary hearing in
Hardy I.
18
B. The Allegations
Petitioner makes a number of allegations in support of his twin claims that
(1) he is innocent, and (2) his trial counsel was constitutionally ineffective for
failing to discover and present reasonably available evidence of Boyd’s
involvement in the murders, which could have created a reasonable or a lingering
doubt as to petitioner’s guilt. The applicable law is settled. “[W]e give great
weight to those of the referee’s findings that are supported by substantial evidence.
(In re Cox (2003) 30 Cal.4th 974, 998; In re Johnson (1998) 18 Cal.4th 447, 461;
In re Ross (1995) 10 Cal.4th 184, 201.) This is especially true for findings
involving credibility determinations. The central reason for referring a habeas
corpus claim for an evidentiary hearing is to obtain credibility determinations (In
re Scott (2003) 29 Cal.4th 783, 824); consequently, we give special deference to
the referee on factual questions ‘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’ (In re Malone[, supra,]
12 Cal.4th [at p.] 946).
“Though we defer to the referee on factual and credibility matters, in other
areas we give no deference to the referee’s findings. We independently review
prior testimony (In re Cox, supra, 30 Cal.4th at p. 998, fn. 2), as well as all mixed
questions of fact and law (In re Ross, supra, 10 Cal.4th at p. 201). Whether
counsel’s performance was deficient, and whether any deficiency prejudiced the
petitioner, are both mixed questions subject to independent review. (Ibid.)
Ultimately, the referee’s findings are not binding on us (In re Malone, supra, 12
Cal.4th at p. 946; In re Ross, at p. 201; In re Marquez (1992) 1 Cal.4th 584, 603);
it is for this court to make the findings on which the resolution of [petitioner’s]
habeas corpus claim will turn (In re Visciotti (1996) 14 Cal.4th 325, 349; see In re
19
Scott, supra, 29 Cal.4th at p. 824).” (In re Thomas (2006) 37 Cal.4th 1249, 1256-
1257.)
Respondent is entitled to challenge the referee’s findings, both on the
ground that they are not supported by substantial evidence and for accuracy, and
he does so in his brief filed after the hearing in Hardy I. The grounds for these
exceptions are largely duplicated in respondent’s return in Hardy II, wherein he
denies most of the allegations in the Hardy II petition. Unless otherwise stated,
we consider these objections together.
With these rules in mind, we examine petitioner’s factual allegations.8
1. Boyd’s Admissions
Petitioner alleges Calvin Boyd made incriminating admissions to several
people, strongly suggesting he had participated in the murders. As we describe
below, various witnesses testified at the evidentiary hearing and, although Boyd
refuted their claims, the referee found Boyd was not a credible witness.
Respondent takes exception to the referee’s findings as to these witnesses on the
ground that Boyd testified and contradicted them, but the referee made credibility
determinations to which we defer because they are supported by substantial
evidence. Accordingly, we overrule respondent’s exceptions. Evidence of Boyd’s
incriminating admissions, coupled with other evidence, could have convinced a
reasonable jury to entertain some doubt as to the extent of petitioner’s
participation in the murders.
8
Respondent takes exception to many if not most of the referee’s findings.
To the extent certain facts found by the referee (but challenged by respondent)
play little or no role in the proceedings, we do not mention them or resolve
respondent’s exceptions to them.
20
a. Raynall Burney
Raynall Burney was a resident of the Vose Street apartments at the time of
the murders. Petitioner alleges that “[s]hortly before the killings, Raynall Burney
overheard Boyd say that he was looking for a hit man; Boyd later told Burney that
he should say nothing about the conversation about the hit man.” These
allegations are supported by Burney’s testimony at the evidentiary hearing that he
heard Boyd tell a friend that “someone had asked him if he knew someone that
could do a hit for this certain individual, and that they would get paid for doing it.”
Later, Burney overheard Boyd tell the same person not to mention the
conversation to anyone.
The referee specifically credited Burney’s testimony, concluding that “[i]n
testifying at the reference hearing, Boyd made a number of statements which were
shown to be false[, including] . . . that he did not tell . . . Raynall Burney . . . that
he had participated in the planning and/or the carrying out of the murders in this
case.” The referee also concluded that although Boyd denied making the
statements overheard by Burney, “Boyd generally lacked credibility.” (Italics
added.)
Respondent, in his return, denies Burney actually overheard Boyd make
such comments, relying on Boyd’s testimony in which he denied participation in
the murders and claimed that, on the night of the murders, he was in his apartment,
having passed out from consuming too much alcohol.9 The referee, however,
reasonably found Boyd was not credible.
9
Respondent’s further contention that Burney never mentioned a “hit man”
per se, but merely testified that he heard Boyd ask a friend “if he knew someone
that could do a hit for this certain individual, and that they would get paid for
doing it” (italics added), is frivolous.
21
Respondent takes exception to the referee’s finding that Burney was
credible on the grounds that Burney had suffered a 1983 felony conviction for oral
copulation and had failed to come forward with his evidence at the time of trial.
The referee was aware of Burney’s felony conviction, but determined he was
nevertheless truthful. In addition, Burney explained in his declaration why he did
not come forward earlier—he was not aware petitioner faced the death penalty and
would have come forward had he known—and he testified at the hearing that
everything in his declaration was true. As the referee “ha[d] the opportunity to
observe the witnesses’ demeanor and manner of testifying” (In re Malone, supra,
12 Cal.4th at p. 946), information unavailable to this court, and his conclusion is
supported by substantial evidence, we defer to his credibility determination (In re
Thomas, supra, 37 Cal.4th at p. 1256).
Respondent also takes exception to the referee’s finding that Burney was a
credible witness on the ground that his testimony was hearsay. Respondent
forfeited this claim for our review by failing to object on this ground at the
hearing. Nor does it appear respondent objected to Burney’s declaration. Were
we to overlook this forfeiture and address the claim, we would find Boyd’s
comment, overheard by Burney, that someone asked Boyd “if he knew someone
that could do a hit for this certain individual, and that they would get paid for
doing it,” was admissible under the coconspirator exception to the hearsay rule.
“Hearsay evidence is of course generally inadmissible. (Evid. Code,
§ 1200.) Hearsay statements by coconspirators, however, may nevertheless be
admitted against a party if, at the threshold, the offering party presents
‘independent evidence to establish prima facie the existence of . . . [a] conspiracy.’
[Citations.] Once independent proof of a conspiracy has been shown, three
preliminary facts must be established: ‘(1) that the declarant was participating in a
conspiracy at the time of the declaration; (2) that the declaration was in
22
furtherance of the objective of that conspiracy; and (3) that at the time of the
declaration the party against whom the evidence is offered was participating or
would later participate in the conspiracy.’ ” (People v. Hardy, supra, 2 Cal.4th at
p. 139.)
Evidence Code section 1223 provides in pertinent part: “Evidence of a
statement offered against a party is not made inadmissible by the hearsay rule if:
[¶] (a) The statement was made by the declarant while participating in a
conspiracy to commit a crime or civil wrong and in furtherance of the objective of
that conspiracy; [and] [¶] (b) The statement was made prior to or during the time
that the party was participating in that conspiracy.”
The information, as amended, alleged that Clifford Morgan, Mark Reilly
and petitioner “conspire[d] together and with other persons including but not
limited to Colette Mitchell, Ron Leahy, Calvin Boyd and Debbie Sportsman, to
commit the crime of [m]urder for the purpose of collecting life insurance proceeds
upon the life of Nancy Carol Morgan and Mitchell Raymond Morgan and to do so
by defrauding the Equitable Life Assurance Company and the Provident Alliance
Life Assurance Company.” (Italics added.) There was thus no question at trial
that Boyd was a coconspirator, i.e., that he was “participating in a conspiracy.”
Boyd’s comment, overheard by Burney, plainly betrays planning behavior in
furtherance of the conspiracy (see People v. Brawley (1969) 1 Cal.3d 277, 288
[statements construed as attempts to recruit a person to join the criminal scheme
are in furtherance of the conspiracy]) and thus would not have been barred by the
hearsay rule had respondent objected on that ground. Accordingly, we overrule
respondent’s exceptions and adopt the referee’s finding on this point.
Respondent next takes exception to the referee’s conclusion that “[t]he
testimony of Raynall Burney indicated that, shortly before the killings, Burney
overheard Boyd say that he was looking for a hit man.” (Italics added.)
23
Respondent argues that Burney’s testimony indicates only that he overheard Boyd
say that someone had asked him (i.e., Boyd) if he knew a hit man, not that Boyd
was himself searching for one. We agree and sustain this exception.
b. Rickey Ginsburg10
Petitioner alleges that “a few days before the killings, Boyd and Marcus
tried to recruit Ollie Epps, another one of Boyd’s friends, to help with the
killings.” This allegation is supported by the testimony of Rickey Ginsburg, who
at the time of the crimes resided with his mother at the Vose Street apartments.
Ginsburg testified that Epps, his mother’s boyfriend, told him that Boyd and
Marcus had attempted to recruit him, but he had declined. Respondent denies the
allegation, relying on Boyd’s testimony denying he had asked anyone to commit
the murders. Other than to conclude Boyd was generally not credible, the referee
made no specific findings regarding Boyd’s alleged attempt to recruit Epps.
Accordingly, we assign this fact no weight.
Petitioner also alleges that after the murders, Ginsburg “overheard Boyd
say to Ollie Epps that he (Boyd) had ‘tripped upon the kid and grabbed a pillow
and put it over his face and stabbed him.’ ” This allegation is supported by
Ginsburg’s testimony that, sometime after the murders, he was shooting pool with
Boyd, Epps and others, and he heard Boyd tell Epps: “Yes, man, I went in to do
the lady in and Marcus and I were stumbling through the house, and I went
through one room, I tripped upon the kid and grabbed a pillow and put it over his
face and stabbed him.” The referee found the allegation to be true, concluding
that, “[i]n testifying at the reference hearing, Boyd made a number of statements
10
Ginsburg’s mother’s name is Marcia King, although she was also known as
Marcia Sanders. Rickey Ginsburg is referred to in defense counsel’s investigation
reports as “Rickey Sanders.”
24
which were shown to be false[, including] . . . that he did not tell . . . Ollie Epps
[or] Rick Ginsburg . . . that he had participated in the planning and/or the carrying
out of the murders in this case.” (Italics added.)
Respondent denies Ginsburg actually overheard Boyd make these
incriminating comments; in support, respondent argues that Boyd testified and
denied participation in the murders, Ginsburg’s credibility is suspect because he
has a felony conviction for selling cocaine, Ginsburg failed to give police this
information when they interviewed him around the time of the crimes, and
Ginsburg never told his mother about the incident although for him to conceal
such important information from her would have been unusual.11 Respondent also
formally takes exception to the referee’s findings, arguing Ginsburg’s testimony
was not credible.
Although Boyd denied making the statements overheard by Ginsburg, the
referee found that “Boyd generally lacked credibility.” (Italics added.) The
referee also specifically credited Ginsburg’s testimony on this point. This was a
classic credibility determination to which we defer, inasmuch as the referee’s
conclusion on this point is supported by substantial evidence, namely, Ginsburg’s
own testimony. We thus overrule respondent’s exceptions and adopt the referee’s
findings.
Petitioner also alleges that after the murders, Boyd told Ginsburg in a
threatening manner to tell the police he knew nothing about them. This allegation
11
The parties stipulated that Rickey Ginsburg’s mother, Marcia King
Sanders, if called to testify, would say she was living at the Vose Street apartments
around the time of the murders and that her son “never told her that he . . . had any
information about Calvin Boyd being involved in the murders of Nancy or
Mitchell Morgan.”
25
is supported by Ginsburg’s testimony that sometime after he was interviewed by
the police, Boyd confronted him and said: “ ‘And what did you tell them? And
what do you know? And now you know nothing.’ ” Ginsburg took these
comments to be a threat. The referee found “[t]he evidence showed that, at some
point after the killings, . . . Boyd told Ginsburg [in a threatening manner that] he
should tell the police that he knew nothing about the killings.” As noted, the
referee specifically credited Ginsburg’s testimony and found “Boyd generally
lacked credibility.”
Respondent impliedly denies this allegation in his return, alleging: “Boyd
did not tell . . . Rickey Ginsburg . . . that he committed one or both of the
murders.” We may assume respondent’s attack on Ginsburg’s credibility applies
here as well. Respondent also takes exception to the referee’s finding that Boyd
threatened Ginsburg. The referee, however, reasonably weighed Ginsburg’s
credibility against that of Boyd and, inasmuch as Ginsburg testified specifically
that Boyd threatened him, substantial evidence supports the referee’s finding. We
thus overrule respondent’s exception. Respondent’s further exception to the
referee’s description of the exact nature of the threat is meritless: That Boyd said,
“ ‘And now you know nothing,’ ” in context, was reasonably construed as a threat.
Respondent also takes exception to the referee’s finding regarding
Ginsburg because his testimony recounting Boyd’s threat was inadmissible
hearsay. It is unclear whether respondent properly objected on this ground.
Although respondent made a continuing hearsay objection during Ginsburg’s
testimony, that objection could be construed as applying only to Ginsburg’s
testimony regarding the comments of Ollie Epps. As the matter is unclear from
the record, however, we give respondent the benefit of the doubt and conclude the
issue is preserved for our review. (People v. Champion (1995) 9 Cal.4th 879, 908,
fn. 6, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.)
26
Turning to the merits of the hearsay question, we conclude Boyd’s threat to
Ginsburg falls under the coconspirator exception to the hearsay rule. (See
discussion, ante, at pt. IV.B.1.a.) Although the threat was made after the crimes
had occurred, there is no question Boyd’s statement was made “while” he was
engaged in the conspiracy. As we explained on appeal: “The conspiracy did not
. . . end with the death of the insureds. Instead, for purposes of this case, it
continued until the coconspirators received the insurance proceeds [citation], or
[Clifford] Morgan was convicted of unjustifiable homicide of the victims, thus
disabling him from legally collecting the insurance proceeds. [Citation.] Because
the insurance companies had not yet paid out at the time of trial, the conspiracy
was a continuing one, permitting the introduction of hearsay statements made
during the time between the crime and the trial, pursuant to Evidence Code section
1223.” (People v. Hardy, supra, 2 Cal.4th at p. 144, fn. omitted.)
Respondent contends Boyd’s threat to Ginsburg was not uttered in
furtherance of the objective of the conspiracy. Although respondent’s argument
lacks detail, we conclude Boyd’s threat not to reveal his name to the police was a
clear attempt to avoid detection and thus protect the aims of the conspiracy. (See
People v. Sully (1991) 53 Cal.3d 1195, 1231 [statements fell within the
coconspirator exception because they “could reasonably be viewed as an attempt
to commit a potential witness to silence, thereby concealing the murder”].) We
thus conclude that, assuming respondent preserved this issue, the referee properly
admitted the evidence over the hearsay objection.
As the referee’s conclusions with regard to Ginsburg are supported by
substantial evidence, they are entitled to deference and we adopt them.
27
c. James Moss
Petitioner alleges that after the murders, James Moss had a conversation
with Boyd in which Boyd said he was angry with petitioner because petitioner had
failed to show up for something, that Boyd had to go in his place, that Marcus had
to drive the getaway car, and that Boyd later told Moss to forget the conversation.
Moss, who now lives in Tennessee, testified that he lived at the Vose Street
apartments in 1981 and knew Boyd as well as Boyd’s wife, Arzetta Harvey. Moss
testified that sometime after the crimes, after he had learned of Reilly’s arrest for
the murders, Moss, Boyd and Marcus were milling around the swimming pool at
the apartment complex when Boyd said he was angry because petitioner had not
shown up to do something he was supposed to do and Boyd had to go in his place.
Boyd criticized petitioner’s courage, saying he “was too chicken shit to go along.”
Boyd was angry because “he needed his part of the money to get the drugs that he
wanted and needed.” Marcus added that petitioner “mess[ed] the whole thing up
because he didn’t go, [and] that if they got caught, [petitioner] would get away
free because he did not—you know, he did not go, he did not show up to do what
they was supposed to do.” Boyd echoed this sentiment, saying that if Boyd were
arrested, petitioner would “walk away free because he did not do anything.”
Marcus said that as a result of petitioner’s failure to show up, he (Marcus) had to
drive the getaway car. Sometime after the poolside conversation, Boyd told Moss
to forget it had taken place. Moss admitted on cross-examination that, at the time,
he did not know what Boyd and Marcus were talking about and did not know they
may have been referring to the murders. Boyd specifically denied Moss’s account
of the alleged conversation.
The referee specifically credited James Moss’s testimony on this point,
concluding that, “[i]n testifying at the reference hearing, Boyd made a number of
statements which were shown to be false[, including] . . . that he did not threaten,
28
bully, pressure or otherwise try to intimidate any of the Vose Street residents . . .
[and] that he did not tell . . . James Moss that he had participated in the planning
and/or the carrying out of the murders in this case.”
Respondent denies that Moss heard Boyd make these incriminating
comments, noting that Moss admitted he did not know what Boyd was talking
about and that Moss had a motive to testify falsely because his present wife, then
21 years old, had had a one-day affair with Boyd’s stepson, who was only 15 or 16
years old at the time. In addition, respondent alleges Moss’s failure to come
forward until now undermines his credibility. Respondent takes exception to the
referee’s findings on these same grounds.
The referee concluded that although Boyd denied making the statements
reported by Moss, “Boyd generally lacked credibility.” The referee’s decision to
credit Moss’s testimony and not Boyd’s is a credibility determination to which we
must defer if supported by substantial evidence. We conclude that it is, namely,
the testimony of James Moss himself and that of Sandra Harris Moss, who
testified that she had immediately apologized to Arzetta Harvey about her affair
with Harvey’s son and that their friendship was back to normal within 24 hours.
Respondent takes exception to the referee’s finding concerning Moss’s
testimony recounting Boyd’s admissions, contending the comments were
inadmissible hearsay. Respondent failed to object on this ground and thus failed
to preserve the issue for our review. Were we to overlook this forfeiture and
address the claim, we would find Boyd’s comment, warning Moss that he should
forget the conversation he had heard, was admissible under the coconspirator
exception to the hearsay rule. (See discussion, ante, at pt. IV.B.1.a.) Like the
threat to Ginsburg, Boyd’s warning to Moss was an attempt to shield the
conspiracy from discovery. (People v. Sully, supra, 53 Cal.3d at p. 1231.)
29
Boyd’s other comments, overheard by Moss, that petitioner had not shown
up for something he was supposed to do, that Boyd went in his place, that
petitioner “was too chicken shit to go along,” and that Boyd “needed his part of
the money to get the drugs that he wanted and needed” require a different analysis
for they do not appear to have been uttered in furtherance of the conspiracy. We
find, however, that these comments were admissible because they recounted
Boyd’s prior inconsistent statements. Evidence Code section 1235 provides in
part: “Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing.”
Boyd testified at trial that he did not kill the victims, had not agreed to kill the
victims, was never asked to do it, had never told Reilly “that Marcus had backed
out” or that he (Boyd) would do the killing, and that no agreement existed
whereby he was to receive money in return for the murders. At the evidentiary
hearing, he similarly maintained he was completely innocent of the murders and
uninvolved in the conspiracy.
In light of these denials, James Moss’s testimony was admissible under
Evidence Code section 1235 as evidence of Boyd’s prior inconsistent statements.
Even if respondent had preserved this issue, therefore, the referee would properly
have admitted the evidence over the hearsay objection. We thus overrule
respondent’s exceptions and adopt the referee’s conclusions regarding James
Moss’s evidence.
d. Michael Small/Sandra Harris Moss
Petitioner alleges that sometime after the murders, Boyd told Michael
Small he had killed a child and would do it again; that he took a pillow, put it over
the child’s face and stabbed him through the pillow; and that he expected to
receive a large sum of money. These allegations are supported by the testimony of
30
both Small and Sandra Harris Moss, then known as Sandra Harris. Small, now a
minister living in Kentucky, testified that he lived at the Vose Street apartments in
1981 and was friends with Arzetta Harvey’s son (Boyd’s stepson). Small
observed an altercation between Boyd and Raynall Burney in which Boyd drew a
knife and said: “I play for keeps. I have already taken out one young kid. I can
do the same.” Boyd made these statements after the Nancy and Mitchell Morgan
murders. A few days later, Small asked Boyd whether his comments were true
and Boyd replied in the affirmative, explaining: “I took the pillow and I put it
over him and I just stabbed him.” The conversation was “[v]ery vivid” in Small’s
memory. At one point, Boyd said he expected to receive a “large sum” of money,
but later said the money he was expecting to receive “wasn’t there.” Sandra
Harris Moss testified that Arzetta Harvey, Boyd’s wife, told her Boyd was
expecting to receive some insurance money, although in her testimony Harvey
denied the account. Boyd denied making the statements to Small or making any
statements with regard to insurance proceeds.
At the hearing, respondent emphasized that there was a discrepancy
between Small’s declaration (introduced without objection) and his testimony, in
that his declaration made no mention of Boyd’s admitting to killing a child. Small
explained that he had told the defense investigator who prepared the declaration
that, in light of the many years that had passed, he might still remember some
additional facts. Respondent fully cross-examined Small regarding the
discrepancy. Regarding why he did not immediately come forward with his
evidence, Small testified that he initially declined to go to the police because he
feared Boyd, then left the state for a few months for a military commitment, and
that when he returned to California, he heard nothing more about the murders.
The referee specifically credited Small’s testimony on these points and
concluded Boyd’s denials were not credible, stating that, “[i]n testifying at the
31
reference hearing, Boyd made a number of statements which were shown to be
false[, including] . . . that he did not threaten, bully, pressure or otherwise try to
intimidate any of the Vose Street residents . . . [and] that he did not tell . . .
Michael Small . . . that he had participated in the planning and/or the carrying out
of the murders in this case.” (Italics added.) The referee also found Arzetta
Harvey’s testimony (denying she had told Sandra Harris Moss that Boyd was
coming into some insurance money) “to be unreliable.”
Respondent in his return denies these allegations concerning Boyd’s
statements to Small and also takes exception to the referee’s findings, on a number
of grounds. First, respondent argues the discrepancy between Small’s declaration
and his hearing testimony, as well as his failure to come forward earlier, indicates
he was not credible. Small addressed these points in his testimony. Respondent
adds that Small’s credibility is further undermined because Burney in his
testimony never mentioned that Boyd said he had killed a child by stabbing him.
Although Raynall Burney’s failure to mention that Boyd had admitted to killing a
child tends to undermine Small’s testimony, this is the type of credibility
assessment we commit to the referee, and he specifically found Boyd was not
truthful when he denied telling Small about his involvement in the murders.
Because the referee’s credibility determination is supported by substantial
evidence, namely Small’s own testimony and his declaration, it is entitled to
deference. (In re Thomas, supra, 37 Cal.4th at p. 1256.) Accordingly, we
overrule respondent’s exceptions.
Second, respondent takes exception to the referee’s acceptance of Small’s
testimony, on grounds his credibility was undermined by: (1) his claim he was an
“ordained” minister of the Jehovah’s Witnesses faith, when in fact his Kingdom
Hall does not use that title; and (2) when he was 17 years old, he obtained an
identification card from the Department of Motor Vehicles with a false birth date.
32
These matters were fully aired at the hearing, with Small explaining the
circumstances of each, and we assume the referee considered them in weighing
Small’s credibility against that of Boyd. Because the referee’s credibility
determination is supported by substantial evidence, namely Small’s own
testimony, it is entitled to deference. (In re Thomas, supra, 37 Cal.4th at p. 1256.)
Accordingly, we overrule these exceptions.
Third, respondent takes exception to the referee’s findings with regard to
Small’s testimony, on the ground that evidence Small was afraid of Boyd, that
Boyd “lived the life of a gangster,” and that other Vose Street residents were
afraid of Boyd was inadmissible evidence of Boyd’s bad character. Because
respondent did not object to Small’s testimony on this ground, he has forfeited the
claim in this court. In any event, the testimony was admissible to show Small’s
state of mind, which was relevant to show his fear of Boyd and thus his reluctance
to come forward until years later. We thus overrule this exception.
Fourth, respondent takes exception to the referee’s finding that Boyd ever
told anyone he was expecting to receive money from some insurance proceeds or
that Harvey had mentioned anything about such money to Sandra Harris Moss,
arguing that no evidence supports the proposition that Boyd told this to Small
personally. Respondent is mistaken, as Small so testified. We thus overrule this
exception.
Fifth, respondent takes exception to the referee’s finding that Arzetta
Harvey told Sandra Harris Moss that she and Boyd expected to get some insurance
money “soon.” The referee’s interpretation of the evidence is reasonable; Sandra
Moss testified that Harvey had said she and Boyd were “coming into some
insurance money,” and, in context, Moss reasonably understood the use of the
colloquial phraseology to mean “soon” and not at some distant future time. We
thus overrule this exception.
33
Sixth, respondent takes exception to the referee’s finding crediting Small’s
testimony recounting Boyd’s admissions, contending the comments were
inadmissible hearsay. Respondent failed to object on this ground and thus failed
to preserve the issue for our review. Were we to overlook this forfeiture and
address the claim, we would find Boyd’s comments that (1) with a drawn knife, he
told Raynall Burney (overheard by Small): “ ‘I play for keeps. I have already
taken out one young kid. I can do the same’ ”; (2) he told Michael Small: “I took
the pillow and I put it over him and I just stabbed him”; and (3) he told Small he
(Boyd) expected to be receiving a large sum of money, all were admissible under
Evidence Code section 1235 because they recounted Boyd’s prior inconsistent
statements. (See discussion, ante, at pt. IV.B.1.c.) We thus conclude that, even
had respondent preserved this issue, the referee would properly have admitted the
evidence over the hearsay objection.
As the referee’s conclusions concerning the testimony of Michael Small
and Sandra Harris Moss are supported by substantial evidence, namely, the
testimony of Small himself as well as that of Sandra Harris Moss, we overrule
respondent’s exceptions and adopt the referee’s conclusions.
e. Michael Mitchell
Petitioner alleges that a few days after the murders, Boyd demanded from
codefendant Reilly a share of the insurance proceeds. This allegation is supported
by the testimony of Michael Mitchell, who testified that he was Reilly’s roommate
at the Vose Street apartments in 1981. Mitchell answered in the affirmative when
he was asked whether Reilly told him a few days after the murders “that [Boyd]
had actually threatened him because he wanted his cut for the killing.”
Respondent denies these allegations.
34
The referee made no specific findings as to this particular alleged threat
Boyd issued to Reilly, or whether Mitchell was telling the truth, although he made
the related finding that “Boyd told [Michael] Small that he expected to receive a
large sum of money,” that Boyd was not credible when he denied threatening or
trying to intimidate any Vose Street residents, and that “Boyd generally lacked
credibility.” Because the referee failed to make a specific finding with regard to
the allegation based on Michael Mitchell’s testimony, we are left with disputed
factual allegations, the resolution of which would require another evidentiary
hearing. Accordingly, for purposes of the present case, we will ignore the
allegation based on Michael Mitchell’s testimony at the evidentiary hearing.
f. Steven Rice
In 1981, Steven Rice lived at the Vose Street apartments in an apartment
next to Reilly’s. Rice was allowing petitioner to live with him rent-free.
Petitioner alleges that “at some point after the killings,” Boyd entered Rice’s
apartment, began beating Rice, and warned him that he should not mention Boyd’s
name to the police or Boyd would kill him. These allegations are supported by
Rice’s testimony. Rice, who now lives in Utah, testified he was friends with the
Hardy family and lived in the Vose Street apartment with petitioner in 1981. He
testified that about two weeks after the murders, Boyd entered his apartment while
he was sleeping, began hitting him in the face, and told him not to mention his
name to the police “or he was going to kill my white ass.” Boyd denied
threatening Rice in this manner.
The referee found “[t]he evidence showed that, at some point after the
killings, Boyd came into Steve Rice’s apartment while he was asleep and began
hitting Rice, telling him ‘he better not mention his name [to the police] or he was
going to kill [Rice’s] white ass.’ ” As noted, the referee specifically found Boyd
35
lied when he denied threatening and intimidating the Vose Street residents and that
he “generally lacked credibility.”
Respondent denies Boyd ever threatened Rice not to go to the police and
also raises a number of exceptions to the referee’s findings regarding Rice. First,
respondent takes exception to the referee’s findings on the ground that Rice never
mentioned to the police investigating the murders that Boyd had threatened him,
although he had opportunities to do so. Although that fact tends to undercut
Rice’s credibility, we note Rice testified that Boyd threatened him with harm
should he reveal Boyd’s involvement. In addition, Rice states in his declaration
that he complained several times to the police about Boyd’s attempt to retaliate
against him, and the police did nothing in response.12 In agreeing with Rice and
not Boyd, the referee made a classic credibility determination that is entitled to
deference if supported by substantial evidence. Because the referee’s decision is
supported by Rice’s own testimony and his declaration, we overrule this
exception.
Second, respondent takes exception to the referee’s findings on the ground
that Rice’s testimony regarding Boyd’s assault on him was inadmissible evidence
of bad character. (Evid. Code, § 1101.) Respondent did not object on this ground
12
For example, Rice declared that after Boyd broke into his apartment and
threatened him, Rice began sneaking into his apartment through a window so as to
avoid meeting Boyd. Although Rice asked the police for protection against Boyd,
“they did nothing” and “[t]hey did not take me seriously.” Rice declared that a
few days later, Boyd and Marcus confronted him in the Vose Street apartment’s
parking lot and chased him, but he escaped. “I never returned to my apartment
after that because I was afraid for my life and the police did nothing to protect me
from [Boyd]. Finally, I decided just to leave the state and move in with my father
in Wyoming.” Although respondent objected to the declaration at the hearing, it is
unclear whether he raises the same objection before this court. In any event, the
content of the declaration was largely duplicated by Rice’s hearing testimony.
36
at the hearing and thus forfeited its consideration in this court. In any event,
Rice’s testimony was admissible under the coconspirator exception to the hearsay
rule because it was an attempt to keep the conspiracy from being discovered and
its ends thwarted, while it was still an ongoing enterprise. (See discussion, ante, at
pt. IV.B.1.a.)
Third, respondent takes exception to the referee’s finding that when Demby
interviewed Rice, he “repeatedly told Mr. Demby that after the killings, Boyd had
physically attacked him and ordered him not to mention his (Boyd’s) name to the
police.” (Italics added.) We have reviewed the transcript of the interview (which
was admitted without objection) and are satisfied the referee’s conclusion on this
point is accurate. We thus overrule this exception.
As the referee’s conclusions regarding Rice’s evidence are supported by
substantial evidence, namely the testimony of Rice himself as well as his
declaration and the transcript of his interview with defense counsel, the referee’s
conclusions are entitled to deference, and we adopt them.
2. Boyd Habitually Carried a Knife Similar to the Murder Weapon
In addition to Boyd’s numerous incriminating statements, petitioner also
presented evidence that Boyd habitually carried and brandished a knife similar to
the murder weapon. The victims were killed with a knife approximately six inches
long and one-half inch wide. Petitioner alleges that, had trial counsel conducted a
reasonable investigation, he would have discovered that Boyd habitually carried a
knife of substantially similar dimensions as the murder weapon. The testimony of
several witnesses supports this allegation. For example, Rickey Ginsburg testified
Boyd habitually carried a knife about seven inches long. Wesley Frank, another
resident of the Vose Street apartments in 1981, testified Boyd carried a dagger,
sharp on one side only, but stopped wearing it after the murders. Raynall Burney
37
testified Boyd kept a knife in his back pocket or on his belt. He saw Boyd with a
switchblade-style knife about six inches long and one-half inch wide. Also
testifying that Boyd habitually carried a knife were Steven Rice, Michael Mitchell,
Michael Small, James Moss and Sandra Harris Moss.
Respondent denies that Boyd carried a knife of the same dimensions as the
murder weapon. He emphasizes the difference between a single-bladed knife and
a stiletto (which is sharp on both sides of the blade) and asserts the expert
testimony at petitioner’s trial indicated the victims were killed with a stiletto.
Although expert testimony indicated the victims were killed by the same or similar
knives and it appeared from the wounds the knife was sharp on both sides of the
blade, the referee made no finding on whether the knife Boyd carried was of the
same dimensions or characteristics as the murder weapon. The referee did
conclude, however, that Boyd carried a knife around the time of the murders and
that Boyd’s testimony “that he did not possess [or] carry . . . a knife during the
time he lived at the Vose Street apartments” was false. Moreover, only Wesley
Frank specified that the knife he saw Boyd carrying was sharp on one side only.
None of the other witnesses related this detail, although some reported the length
and width of the blade as being consistent with the murder weapon.
Respondent also takes exception to the referee’s finding that Boyd
habitually carried a knife, arguing evidence he did so was improperly admitted at
the hearing because it was evidence of his bad character. Respondent did not
object to the evidence on that ground and must be held to have forfeited the claim
in this proceeding. Respondent’s further exception that a drawing of the knife
used at the hearing was not drawn to scale must suffer the same fate. Accordingly,
we overrule respondent’s exceptions.
38
There being substantial, indeed overwhelming, evidence to support the
referee’s finding that Boyd habitually carried a knife around the time of the
murders, we adopt it.
3. Boyd Had Previously Committed Several Assaults with a Knife
Petitioner alleges that, had trial counsel conducted a reasonable
investigation, he would have discovered that Boyd, on numerous occasions,
threatened various people with a knife and admitted having stabbed people in the
past. Thus, petitioner alleges, Boyd several times threatened his wife, Arzetta
Harvey, with a knife. This allegation is supported by Harvey’s testimony
admitting Boyd threatened her with a knife and that he once put a knife to her
throat and threatened to kill her. Harvey’s son testified that Boyd, during an
argument, brandished a knife, chased Harvey and threw a knife at her. Raynall
Burney described a different incident; he saw Boyd arguing with Harvey and then
point the knife at her side in a threatening manner.
The record also supports petitioner’s further allegations that Boyd once
brandished a knife at Raynall Burney, as well as at a group of people gathered
around the swimming pool at the Vose Street apartments, including Michael Small
and others, and that Boyd bragged he previously had cut someone’s throat.
Although Boyd denied these incidents, the referee ruled generally in petitioner’s
favor on this point.
Respondent does not specifically deny that any of these events occurred but
contends that because the victims were killed with a two-bladed knife, the
testimony recounting incidents in which Boyd threatened Burney, Harvey and
Small with a knife was “irrelevant and immaterial.” Respondent also takes
exception to the referee’s findings, arguing they are incorrect and based on
inadmissible evidence, being merely evidence of Boyd’s bad character.
39
Respondent did not object on these grounds at the reference hearing and thus
failed to preserve the issue for review in this court. Accordingly, we overrule
respondent’s exception to these latter statements.
There being substantial evidence (in the form of testimony by Harvey, her
son, Burney, and Small) to support the referee’s finding that Boyd threatened
people with, and brandished, a knife on several occasions, and because respondent
forfeited the evidentiary objections he now presents, we adopt the referee’s
conclusions.
4. Boyd Had a Reputation for Violence and Threatening Behavior
Relying on many of the same facts, petitioner alleges that, had trial counsel
conducted a reasonable investigation, he would have discovered that Boyd had a
reputation for violence and a history of violent and threatening behavior. With the
exception of evidence relevant to Harvey’s and her son’s state of mind (Evid.
Code, § 1101, subd. (c)), such evidence would have been inadmissible at trial on
the question of Boyd’s character (id., § 1101), and thus counsel cannot have been
ineffective for failing to discover and present it.
5. Boyd Had Cuts on His Hands After the Killings
Petitioner alleges that, had trial counsel conducted a reasonable
investigation, he would have discovered that shortly after the murders, Boyd had
numerous cuts on his hands and told a false story in an attempt to explain them.
Testimony at the evidentiary hearing supports this allegation: James Moss
testified that shortly after the murders, when he overheard Boyd and Marcus make
incriminating comments about their complicity in the murders, he noticed Boyd’s
hands were “partially wrapped” and he had cuts on his hands and “puncture
wounds up around the knuckles.” The cuts looked like they could have been made
by a knife. Steven Rice testified that shortly after the murders, he noticed Boyd
40
had a cut on his knuckles as if he had “punched something.” Sandra Harris Moss
testified that shortly after Reilly was arrested, she noticed Boyd had a long cut on
his right hand, near the knuckle, that looked infected. Boyd told her he had
injured it working with a friend on a car engine. Boyd testified he did not recall
having any cuts on his hands in the days following the murders and denied having
injured himself working on a car, admitting, “I was never a mechanic.” Arzetta
Harvey testified she did not recall seeing any cuts on Boyd’s hands around the
time of the murders.
The referee noted that “several witnesses noticed cuts on Boyd’s hands” in
the days following the crimes and concluded Boyd’s denial that he had cuts on his
hands was not credible and was, in fact, “false.”
Respondent denies petitioner’s factual allegations, relying on Boyd’s and
Harvey’s testimony at the evidentiary hearing, and further contends that even if
Boyd had the alleged cuts, it does not prove he was the murderer or that petitioner
was innocent of the murders, as there was no evidence indicating the
circumstances under which Boyd had sustained the cuts or whether the victims’
killers had cut their hands during the crimes. Respondent takes exception to the
referee’s findings on the same grounds. Although having cuts on his hands just
after the brutal double murder and telling a falsehood as to their origin does not
prove definitively that Boyd was the murderer, this evidence is certainly relevant,
especially as to Boyd’s state of mind and, coupled with other evidence such as his
incriminating admissions, could have convinced the jury to entertain some doubt
as to the scope of petitioner’s involvement in the murders. We thus overrule
respondent’s exceptions.
Substantial evidence (i.e., the testimony of James Moss, Steven Rice and
Sandra Moss) supports the referee’s findings regarding the cuts on Boyd’s hands.
Accordingly, those findings are entitled to deference, and we adopt them.
41
6. Boyd’s Alibi Was False
Boyd had an alibi for the night of the murders: His wife, Arzetta Harvey,
testified at the preliminary hearing that she had purchased some bedroom furniture
from her friend, Sandra Harris Moss, and moved it to her apartment on May 20,
1981, the day before the victims were murdered. Harvey testified at the
preliminary hearing that Boyd came home drunk that night and passed out on the
new bed around 11:00 p.m. (Recall the victims were killed in the early morning
hours on May 21, 1981.) Boyd himself testified that someone must have slipped
him an intoxicating substance that night without his knowledge, resulting in his
passing out.
Petitioner alleges that, had trial counsel conducted a reasonable
investigation, he would have discovered Boyd’s alibi was false. Testimony at the
evidentiary hearing supports this allegation: Sandra Harris Moss testified that on
the day she sold her bedroom furniture to Harvey and helped her move it into her
bedroom, she saw Boyd on the bed late that evening, but contrary to Harvey’s
preliminary hearing testimony, the night she saw Boyd on the bed could have been
any night, and she did not know whether it was the night of the murders.
Suspiciously, after the murders, Harvey put pressure on Moss nearly every day to
say the night she saw Boyd on the bed was the night of the murders. Harvey, at
that time Moss’s good friend, had never pressured Moss about anything, but
uncharacteristically brought up this subject every day “like a ritual.” Moss “felt as
though [Harvey] was pressuring me and brainwashing me to remember that the
night that I sold her the bedroom set and the night that we moved the bedroom set
was the night that [Boyd] was at home laying [on] the bed.” Arzetta Harvey’s son
testified consistently with Moss’s account, asserting that Boyd asked him to lie to
the police and tell them that he (Boyd) was home the night of the murders.
Harvey denied badgering Moss to give Boyd an alibi, but admitted at the
42
evidentiary hearing that she did not know if she had bought the bedroom set
around the time of the murders or not.
Other evidence undermined Boyd’s alibi as well. Although Boyd claimed
he had passed out in his and Harvey’s apartment the night of the murders, three
witnesses reported seeing him in the common areas of the apartment complex that
evening. Wesley Frank, a resident of the Vose Street apartments, testified that on
the evening of May 20, 1981, he saw Boyd and Marcus at the Vose Street
apartment complex around 8:00 or 9:00 p.m., standing in a stairway and talking.
Later, between 10:00 and 11:00 p.m., he heard Marcus start up his motorcycle and
then heard Marcus and Boyd arguing. Boyd said: “ ‘I don’t want to get on the
back of the bike. I’ll fall off.’ ” Nevertheless, Frank saw the two men leave on
the motorcycle with Boyd on the back. They were dressed in dark clothing and
appeared sober. In addition, Rickey Ginsburg testified he saw Boyd and Marcus
in the late evening that same night, between two buildings of the apartment
complex. They asked to borrow his car but Ginsburg declined, instead loaning
them some money. Finally, Colette Mitchell, petitioner’s then girlfriend, told
police she was in Reilly’s Vose Street apartment that critical night and saw Boyd
walk by Reilly’s apartment window around 11:00 p.m.
The referee concluded the evidence presented at the hearing “undermined
Boyd’s purported alibi for the night of the killings and supported petitioner’s
contention that Boyd was the killer.” Critically, the referee specifically found
Boyd’s testimony “that he did not leave the Vose Street apartments with Marcus
on the night of the murders” was false and that Arzetta Harvey’s testimony about
Boyd’s alibi was “unworthy of belief.”
Respondent denies the allegation that Boyd’s alibi was false, relying on
Boyd’s denial and Harvey’s testimony. The referee specifically disbelieved Boyd
43
and Harvey, however, making a credibility determination that is entitled to this
court’s deference.
Respondent takes exception to a number of the referee’s findings. First, he
argues the referee’s findings are “incomplete” because they fail to note the
contrary evidence, to wit, that Sandra Harris Moss initially told police she had
seen Boyd passed out on the bed the night of the murders. The referee was
undoubtedly aware of Moss’s earlier position when he weighed her past
representation to police with her contrary testimony at the reference hearing. The
referee’s conclusion that Moss was truthful at the hearing, and that Boyd and
Harvey were not credible, is the type of credibility determination that is entitled to
our deference. Accordingly, we overrule this exception.
Second, respondent argues any reliance on Colette Mitchell’s transcribed
interview with the police is improper because it was inadmissible, both because it
was hearsay and because it was polygraph-related, being an interview conducted
in connection with a polygraph test. The transcript of this interview was admitted
without objection at the hearing but, inasmuch as the referee’s conclusion
regarding Boyd’s false alibi is sufficiently supported by Ginsburg’s and Frank’s
testimony in any event, we assign Colette’s interview transcript no weight.
Respondent’s third exception challenges Sandra Harris Moss’s testimony
concerning Harvey’s attempt to pressure her on the ground that Moss’s testimony
was not “uncontradicted.” The argument is meritless. Although the point was
contested and our July 20, 1994, order asked the referee to determine why Demby
failed to present “the uncontradicted evidence of other available witnesses who
would have provided mitigating evidence at the penalty phase of the trial” (italics
added), the referee was also directed by our order to take evidence and determine
whether Demby’s tactical decision not to present this evidence was “supportable.”
The relative strength of the evidence of third party culpability was relevant to
44
determining whether Demby’s decision not to present it was supportable. We thus
overrule this exception.
Fourth, respondent takes exception to the referee’s conclusion that Sandra
Harris Moss told her then boyfriend, James Moss, that Harvey was putting
pressure on her to support Boyd’s alibi. Respondent claims no evidence supports
this conclusion because James Moss’s testimony to that effect was not admitted
for its truth. Although respondent is correct that James Moss’s testimony on this
point was not offered for its truth, he is mistaken that no other evidence supports
the referee’s conclusion. Sandra Harris Moss herself testified that she told James
Moss that Boyd and Harvey were trying to “brainwash” her into believing the day
she saw Boyd passed out was the night of the murders. We thus overrule this
exception.
Fifth, respondent takes exception to the referee’s conclusion that Harvey’s
son falsely gave police petitioner’s name at Boyd’s urging because he was afraid
of Boyd. Although respondent contends the evidence supporting this conclusion is
ambiguous, the record strongly supports the referee’s finding. For example,
Harvey’s son affirmed that Boyd approached both him and his mother and told
them they “should tell a certain story to police.” Regarding the fact he told police
he had heard petitioner was the killer, Harvey’s son admitted: “That is what I was
told by Calvin to say.” Ample evidence also supports the notion that Harvey’s son
feared Boyd. He testified he believed Boyd was a violent person, based on Boyd’s
violent abuse of his mother, Arzetta Harvey, his slapping, hitting, verbally yelling
“and just constantly coming home drunk, taking it out on me and my mother.” He
also related an incident in which Boyd had threatened them with a knife. Given
this evidence, the referee was well within his discretion to conclude that Harvey’s
son was afraid of Boyd.
45
Respondent also takes exception to the referee’s findings regarding
Harvey’s son on the ground that his credibility was compromised because he had
sustained two felony convictions and because he did not come forward earlier with
his evidence. We have no doubt the referee considered these factors when
assessing the witness’s credibility. As the referee’s conclusion on this point is
supported by substantial evidence, it is the type of credibility determination that is
entitled to deference. (In re Thomas, supra, 37 Cal.4th at p. 1256.) We thus
overrule respondent’s exceptions regarding Harvey’s son’s testimony.
Sixth, respondent takes exception to the referee’s finding that the evidence
undermines Boyd’s alibi, arguing that other evidence supports the alibi. This is a
factual determination well within the referee’s discretion to make. Accordingly,
we overrule the exception.
Seventh, respondent takes exception to the referee’s finding that the
evidence undermines Boyd’s alibi, arguing that Harvey’s son’s testimony that
Boyd had coerced him to support the alibi was hearsay evidence of Boyd’s bad
character, inadmissible under Evidence Code sections 1101-1103. Although
respondent objected to Harvey’s son’s testimony that Boyd had a reputation for
violence, respondent did not raise a hearsay objection to his testimony that Boyd
had coerced him to support Boyd’s alibi. Accordingly, respondent failed to
preserve the hearsay objection for this court’s consideration. In any event, Sandra
Harris Moss’s testimony amply supports the referee’s conclusion that Boyd’s alibi
was false. We thus overrule the exception.
As substantial evidence (i.e., the testimony of Wesley Frank, Rickey
Ginsburg, Sandra Harris Moss, James Moss and Harvey’s son) supports the
referee’s findings that evidence presented at the hearing “undermined Boyd’s
purported alibi for the night of the killings and supported petitioner’s contention
that Boyd was the killer,” and that Boyd’s testimony “that he did not leave the
46
Vose Street apartments with Marcus on the night of the murders” was false, we
adopt those findings.
7. Boyd Had a Motive to Commit the Murders
Petitioner alleges that at the time of the murders, Boyd was a drug user who
habitually used alcohol, marijuana, heroin, cocaine and possibly phencyclidine
(PCP), and that he was unemployed and in constant need of money. Petitioner
contends this evidence provides Boyd with a motive for the killings. For example,
Harvey’s son testified Boyd was his stepfather in 1981 and that he had gotten to
know Boyd fairly well. He said that people often came to speak with his mother
about Boyd, complaining that Boyd was “constant[ly] badgering [them] for money
to buy the drugs.” Michael Small testified that in 1981, Boyd was often under the
influence. According to Small: “[Boyd] wasn’t trying to hide his drug use in any
way. Over back by the pool he would smoke Sherm [i.e., PCP-laced cigarettes] or
marijuana.” According to Small, Boyd “always had Southern Comfort with him,
and if he didn’t he was going to get a bottle. So that was his recreation.” Asked if
this occurred every day, occasionally or just on weekends, Small replied: “All the
time.” James Moss confirmed that Boyd drank on a “daily basis” and that he
appeared to be addicted to heroin, saying, “he was on that real bad.” Sandra
Harris Moss testified Boyd did not work, but “[h]ung around, loafed around” all
day, drinking and smoking marijuana and Sherm cigarettes. Although she never
saw Boyd inject heroin, she saw needle marks on his arms. James Moss testified
that after the murders, he overheard Boyd say he was angry and that “he needed
his part of the money to get the drugs that he wanted and needed.”
The referee concluded “[t]he evidence at the hearing showed that Boyd had
a motive for the killings: i.e., to obtain money to support his drug habit.”
Moreover, the referee found that Boyd’s testimony that “he did not use . . .
47
cocaine, heroin or PCP during the time he lived at the Vose Street apartments”
was false and that the evidence confirmed “that Boyd’s drug habit was his motive
for participating in the conspiracy[, namely] that, after the killings, Boyd was
heard to say that he wanted to be paid for his part in the killings soon so that he
could buy drugs.”
Without specifically denying the allegations regarding Boyd’s drug
addiction and impecunious circumstances, respondent denies that these alleged
facts provide Boyd with any greater motive for the double murder than any other
poor, unemployed person. Although respondent is correct that the presence of a
motive does not prove Boyd was the killer, this evidence, combined with the other
evidence, could have convinced a reasonable jury to entertain some doubt as to the
scope of petitioner’s involvement in the murders. Moreover, James Moss’s
testimony ties Boyd’s drug addiction to his need for money.
Respondent also takes exception to the referee’s findings, arguing the
evidence showing Boyd’s drug and alcohol habits was inadmissible evidence of
his bad character. Respondent did not object on this ground at the hearing and has
thus forfeited the claim for this proceeding. Assuming the issue was preserved,
the evidence was admissible to challenge Boyd’s credibility (Evid. Code, § 1101,
subd. (c)), as he testified he did not use drugs or alcohol and was not part of the
conspiracy. (See discussion, ante, at pt. IV.B.1.g.) Respondent’s further
argument that no evidence supports the referee’s finding that Boyd was heard to
say he wanted to be paid for his part “in the killings” is meritless; James Moss’s
testimony, read in context, adequately supports the referee’s finding. We thus
overrule respondent’s exceptions.
As the referee’s conclusions regarding Boyd’s motive for the slayings are
supported by substantial evidence (i.e., the testimony of Harvey’s son, Michael
Small, James Moss and Sandra Harris Moss), we adopt them.
48
8. Boyd’s Postcrime Behavior Evidenced Consciousness of Guilt
In addition to Boyd’s many incriminating admissions, the suspicious cuts
on his hands, his having carried a knife around the time of the murders and all the
other evidence described above, petitioner also alleges that Boyd’s behavior and
demeanor following the murders suggested he suffered from a consciousness of
guilt. For example, as described above, Boyd claimed a false alibi and pressured
and threatened others to support it. In addition, Boyd threatened those who had
heard him make incriminating statements to keep silent. At Boyd’s urging,
Harvey’s son, who was only 13 or 14 years old at the time, falsely told police he
had heard from a schoolmate that petitioner and someone named “Buck” were
planning on committing a murder. (“Buck” was codefendant Mark Reilly’s
nickname.) Boyd denied pressuring his stepson in this way, but the referee found
Boyd was not credible on this point.
Petitioner also alleges that, indicative of his guilty state of mind, Boyd
testified falsely at both the preliminary hearing and the trial in petitioner’s case.
For example, at the preliminary hearing, Boyd testified under a false name and
testified falsely that he had never been to prison. By the time of trial, Boyd had
admitted his status as a felon but falsely testified he had received no consideration
for his trial testimony, although he had received immunity for his perjury at the
preliminary hearing. The referee ruled specifically on this point, concluding: “At
the reference hearing, Boyd admitted that prior to his testimony at trial, [the
prosecutor] promised him that he would not be prosecuted for perjury committed
at the preliminary hearing. This evidence, as well as the secret grant of immunity
which [the prosecutor] awarded Boyd prior to the hearing,[13] showed that Boyd
13
Apparently surprising both habeas corpus defense counsel and the deputy
attorney general, at the evidentiary hearing Boyd announced from the witness
(footnote continued on next page)
49
testified falsely when he stated at trial that [the prosecutor] had not promised him
anything in connection with his testimony.”
At trial, Boyd testified that on the morning after the murders, he entered
Steven Rice’s apartment around 8:00 a.m. or 9:00 a.m. and used it as a shortcut to
exit the apartment complex by jumping over a wall. Once in the apartment, he
saw Reilly and petitioner sleeping; Colette Mitchell and Rice were also present.
He testified that he used Rice’s apartment as a shortcut “mostly every day.” This
evidence placed petitioner in Reilly’s company just hours after the crimes and
rendered it more plausible the two of them had acted together in murdering the
victims, a point the prosecution emphasized in closing argument. But at the
evidentiary hearing, Boyd testified he never used Rice’s apartment as a shortcut as
there was no need to do so. The referee cited this inconsistency as evidence of
Boyd’s lack of credibility.
Petitioner makes a number of additional allegations essentially highlighting
inconsistencies in Boyd’s testimony at trial and argues these discrepancies
comprise further evidence of Boyd’s duplicity and demonstrate he was the real
killer. Two examples suffice: Petitioner first alleges that after the murders Boyd’s
demeanor changed. He appeared nervous and stopped carrying his knife. This
allegation is supported by Rickey Ginsburg’s testimony that after the murders
Boyd appeared “more nervous and paranoid and . . . real edgy.” Harvey’s son
(footnote continued from previous page)
stand that he had been granted immunity by the trial prosecutor, Jeffrey Jonas. At
the referee’s request, Boyd produced the letter, dated a few days before the
evidentiary hearing, which stated in part that Boyd was not considered a suspect
for the murders of Nancy and Mitchell Morgan “and will not ever be prosecuted
for any criminal charge against him relating to the case of People v. Hardy.”
50
similarly observed that after the killings Boyd “became paranoid, shaking,
everything that he done he done in a rush.”
Petitioner also alleges Boyd, at trial, falsely testified he had received no
consideration from the Santa Clara County Superior Court in recognition of his
assistance in testifying against petitioner. Petitioner alleges Boyd, facing
sentencing for a burglary conviction in that county at the time of petitioner’s trial,
allegedly received the lightest possible sentence in Santa Clara County and, in
fact, suffered no penalty at all for having fled the jurisdiction prior to sentencing.
Although Boyd touched on the subject at the evidentiary hearing, suggesting that
prosecuting authorities in Los Angeles County had made some overtures to obtain
leniency for him in Santa Clara County, the referee made no specific findings of
fact for these allegations. Accordingly, we assign no weight to them, nor to
several other allegations that were not contradicted at the evidentiary hearing, but
for which the referee made no finding, such as those involving the precise time
Boyd learned of the murders, Boyd’s alleged lie about seeing a red stain on
petitioner’s boots, Boyd’s alleged accusation of Reilly, Boyd’s alleged
conversations with Reilly in the apartment laundry room in which Reilly allegedly
made damaging admissions, Reilly’s alleged solicitation of Boyd to commit the
murders, and others.
C. Actual Innocence
Based on the foregoing allegations, as sustained by the referee and which
we have in large part adopted, petitioner contends he is entitled to relief because
he is actually innocent of the crimes of which he was convicted and that his
“conviction, sentence and confinement are unlawful” because they were achieved
in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and article I, sections 1, 7, 13, 14,
51
15 and 17 of the California Constitution. As we explain, we conclude petitioner is
not entitled to relief on the ground of actual innocence.14
Habeas corpus will lie to vindicate a claim that newly discovered evidence
demonstrates a prisoner is actually innocent. A criminal judgment may be
collaterally attacked on habeas corpus on the basis of newly discovered evidence if
such evidence casts “fundamental doubt on the accuracy and reliability of the
proceedings. At the guilt phase, such evidence, if credited, must undermine the
entire prosecution case and point unerringly to innocence or reduced culpability.
(In re Hall (1981) 30 Cal.3d 408, 417; In re Weber (1974) 11 Cal.3d 703, 724.)”
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1246.) “[N]ewly discovered evidence
does not warrant relief unless it is of such character ‘as will completely undermine
the entire structure of the case upon which the prosecution was based.’ ” (In re
Weber, at p. 724, quoting In re Lindley (1947) 29 Cal.2d 709, 723.) An example
of such evidence is a confession of guilt by a third party. (In re Weber, at p. 724.)
In this context, “ ‘newly discovered evidence’ is evidence that could not
have been discovered with reasonable diligence prior to judgment.” (§ 1473.6,
subd. (b).) As we explain post, in part IV.D.1., the evidence of alleged innocence
on which petitioner now relies was reasonably available to him had Demby
conducted a reasonably thorough pretrial investigation. It thus seems unlikely this
evidence would qualify as “newly discovered.”
We need not determine whether evidence of Boyd’s involvement qualifies
as newly discovered evidence because, even assuming it does, we conclude
petitioner’s factual allegations, though largely sustained by our referee, fail to
14
As will appear post, even if petitioner were found to be innocent of the
actual killing, he would still be guilty of first degree murder as a coconspirator and
an aider and abettor.
52
demonstrate petitioner is actually innocent. The evidence of Boyd’s many lies, his
several inculpatory admissions of his involvement in the murders, his multiple
attempts—by threats of violence and other coercive behavior—to prevent
witnesses from reporting his inculpatory remarks to police, his false alibi, his
threats to Harvey and her son to falsely support his alibi, the cuts on his hands and
his ineffectual attempt to explain them away, his habitual possession and
brandishing of a knife, all serve to inculpate him in the murders and to throw some
doubt on the scope of petitioner’s role—said by the prosecutor at trial to be a
primary one—in the crimes. Moreover, had the jury heard this evidence, it would
have had good reason to doubt Boyd’s trial testimony, which was itself extremely
damaging to petitioner’s case, for Boyd testified to a critical fact, namely, that
when he was in the laundry room sometime after the murders, Reilly told him he
had committed the murders with petitioner.
None of this evidence, however, is enough for us to conclude petitioner has
carried his heavy burden of demonstrating he is actually innocent. “ ‘Depriving’
an accused of facts that ‘strongly’ raise issues of reasonable doubt is not the
standard. Where newly discovered evidence is the basis for a habeas corpus
petition, as alleged by defendant, the newly discovered evidence must
‘undermine[] the prosecution’s entire case. It is not sufficient that the evidence
might have weakened the prosecution case or presented a more difficult question
for the judge or jury. [Citations.]’ (In re Clark (1993) 5 Cal.4th 750, 766.)” (In
re Alcox (2006) 137 Cal.App.4th 657, 670.) The evidence adduced at the hearing
and endorsed by the referee tends to show Boyd had some hand in the murders,
very possibly a primary role; that he lied when he testified he saw petitioner with
Reilly in Steven Rice’s apartment early in the morning after the crimes; and that
he probably lied when he testified that Reilly had told him he (Reilly) and
petitioner committed the murders.
53
But this evidence does not undermine other critical evidence, such as the
testimony of Colette Mitchell, who testified petitioner told her he was going to
steal something from someone to enable the collection of insurance proceeds; that
he had been to the victims’ home the night of the murders; that he knew the crime
was to be accomplished by cutting the chain on the door; that he received $1,000,
apparently for his participation in either the conspiracy or the murders themselves;
that Morgan was not worried about the delay the trial caused because his money
was earning interest while he was in jail; or that people who said the murder was
committed by more than one person were wrong because he “ ‘[knew] for a fact it
was one.’ ” The referee’s findings also do not fatally undermine Colette’s
testimony regarding petitioner’s suspicious instructions to her to help dispose of
both the stolen M-1 carbine rifle and his shoes. That petitioner went to the
victims’ home with Reilly and Boyd is also possible. In short, although the weight
and breadth of the evidence showing Boyd participated in the murders is
disturbing, such evidence does not fatally undermine the prosecution’s entire case
against petitioner. The most that can be said is that this evidence would have
presented a more difficult decision for the jury and may well have created in the
minds of the jurors a reasonable doubt as to petitioner’s guilt. As explained ante,
this is not the standard. (In re Weber, supra, 11 Cal.3d at p. 724, In re Clark,
supra, 5 Cal.4th at p. 766.)
When we issued an order to show cause on the question of petitioner’s
actual innocence, our order represented a “preliminary assessment that . . .
petitioner would be entitled to relief if his factual allegations are proved.” (People
v. Duvall, supra, 9 Cal.4th at p. 475.) After further consideration of the briefs, the
record and the referee’s report, we conclude our preliminary assessment was
wrong, and the allegations, though largely sustained by the referee, fail to
undermine the prosecution’s entire case against petitioner or point unerringly to
54
his innocence or reduced culpability. Accordingly, we conclude he has not shown
he is actually innocent of the crimes.
D. Ineffective Assistance of Counsel
Petitioner also alleges he is entitled to relief because his trial attorney,
Michael Demby, provided constitutionally ineffective assistance of counsel, in that
he failed to investigate, discover and present a significant amount of evidence
indicating petitioner may have been innocent and that Calvin Boyd was probably
the person who killed Nancy and Mitchell Morgan. The legal standard for
determining whether one’s attorney was constitutionally ineffective, thereby
depriving a defendant of his rights under the Sixth Amendment to the United
States Constitution and article I, section 15 of the California Constitution,15 is
settled. “ ‘ “[I]n order to demonstrate ineffective assistance of counsel, a
defendant must first show counsel’s performance was ‘deficient’ because his
‘representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.’ (Strickland v. Washington (1984) 466 U.S. 668,
687-688 [(Strickland)]; [People v.] Ledesma [(1987)] 43 Cal.3d [171,] 215-216.)
Second, he must also show prejudice flowing from counsel’s performance or lack
thereof. [Citations.] Prejudice is shown when there is a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
15
In the same paragraph, petitioner also alleges his “conviction, death
sentence and confinement were obtained in violation of [his] right to . . . due
process and a fair trial, to confrontation of witnesses, to a jury trial, to present a
defense, to a fair, individualized, reliable and/or nonarbitrary guilt and penalty
determination and to be free from cruel and unusual punishment under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution and
Article I, sections 1, 7, 13, 15, 16 of the California Constitution.” In light of our
decision finding counsel was constitutionally ineffective under the Sixth
Amendment, we express no opinion on these additional contentions.
55
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” ’ (In re Avena, supra, 12 Cal.4th at
p. 721; accord, People v. Carter (2003) 30 Cal.4th 1166, 1211.)” (In re Thomas,
supra, 37 Cal.4th at p. 1256.) This second part of the Strickland test “is not solely
one of outcome determination. Instead, the question is ‘whether counsel’s
deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.’ (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.)” (In re
Harris (1993) 5 Cal.4th 813, 833.)
1. Demby’s Deficient Performance
Much of the briefing before this court concerns whether Demby’s
investigation into Boyd’s possible involvement was reasonable, what Demby
knew about Boyd and when he knew it, and whether the evidence of Boyd’s
alleged participation in the crimes was reasonably available had Demby
investigated. Thus, for example, petitioner alleges his trial counsel was aware, at
the time of trial, of the importance to petitioner’s defense of investigating Boyd’s
role in the crimes and therefore knew “further investigation was necessary.”
(People v. Williams (1988) 44 Cal.3d 883, 937.) Petitioner also alleges his trial
counsel was “on notice” that Boyd’s alibi was “potentially false”; that, had Demby
“been aware of the evidence of third party culpability which was presented at the
reference hearing, he would have presented it at the guilt phase of petitioner’s
trial”; that several witnesses with relevant evidence regarding Boyd’s culpability
were available at the time of trial; that “[a]lthough Mr. Demby requested that his
investigator interview some of the relevant witnesses, including those whom he
called the ‘Boyd connection,’ most of the interviews were never done and the few
that were done were done incompetently”; and that “Mr. Demby’s investigation
56
was deficient insofar as he relied on the contents of police reports to decide
whether several key witnesses had information helpful to petitioner’s defense.”
The referee ruled in petitioner’s favor on these points. Respondent, in his
briefing before this court in both Hardy I and Hardy II, denied many of these
factual allegations and raised many objections to the referee’s conclusions. At
oral argument, however, when asked whether trial counsel Demby was
“ineffective,” respondent conceded that he was. We assume respondent meant
only that he agreed Demby’s investigation of Boyd’s involvement in the crimes
was deficient (that is, that the investigation fell below an objective standard of
reasonableness), for respondent went on to argue Demby’s failure to conduct a
reasonable investigation was not prejudicial. We accept the concession but find in
any event that ample evidence supports petitioner’s allegations (and the referee’s
conclusions) that Demby knew more investigation of Boyd was justified;16 that
the witnesses with favorable information were reasonably available had Demby
investigated the Boyd connection; and that had Demby uncovered this
information, he would have presented it to the jury. We specifically find the
evidence demonstrates that Demby had reason to interview Raynall Burney,
Rickey Ginsburg, James Moss, Sandra Harris Moss, Michael Small, Harvey’s son,
Steven Rice and Wesley Frank and that their evidence inculpating Boyd was
reasonably available at the time of petitioner’s trial. The referee so found, and his
conclusion is supported by substantial evidence. (In re Cox, supra, 30 Cal.4th at
p. 998 [referee’s findings on the question of the availability of the evidence is a
16
The referee concluded that, “[a]s a general proposition, Mr. Demby
acknowledged that at the time he was preparing for trial in petitioner’s case, he
realized that investigating Boyd and his relationship to the crime was of great
importance to petitioner’s defense.” (Italics added.)
57
factual determination entitled to great weight if supported by substantial
evidence].)
Thus, petitioner’s factual allegations, based on evidence presented in the
evidentiary hearing in Hardy I, as sustained by the referee and adopted herein by
this court, demonstrate that numerous witnesses were available at the time of trial
and, if contacted, would have testified and recounted (1) Calvin Boyd’s numerous
statements implicating himself as the one who actually killed the victims;
(2) Boyd’s personal threats to various people, warning them not to reveal his
admissions or his involvement in the murders; (3) several witnesses’ observations
of Boyd the night of the murders and in the days following that tended to
demonstrate his alibi was false and that he participated in the murders (e.g., the
suspicious cuts on his hands); and (4) Boyd’s efforts to coerce others to
corroborate his alibi. Although Boyd denied this evidence, the referee concluded
that “both Boyd’s own testimony and other evidence presented at the reference
hearing showed that at the time of the hearing, Boyd lacked credibility and
reliability as a witness.” Substantial evidence supports the referee’s conclusions
regarding the credibility of the witnesses who testified at the evidentiary hearing.
Because Demby failed to ensure the investigation was reasonably thorough,
several witnesses with critical information about Boyd’s involvement in the
murders were not interviewed and their information was not presented at trial.
Had Demby been armed with this additional evidence, he would have presented it
to bolster petitioner’s defense. As the referee concluded, “[i]n his closing
arguments at both the guilt and penalty phases, Mr. Demby argued that Calvin
Boyd and Marcus, not petitioner, had committed the killings. This suggests that if
Mr. Demby had been aware of the evidence, he would probably have presented it.”
Substantial evidence supports this conclusion, and we adopt it.
58
Based on this evidence, the referee concluded: “In sum, this Referee finds
that the reason for which Mr. Demby did not present the available evidence
pertaining to Calvin Boyd was that Mr. Demby’s investigation and that of his
office fell below the standard of care, and that therefore Mr. Demby’s reasons for
not presenting the available evidence [were] not supportable.” This conclusion is
a mixed question of fact and law subject to independent review. (In re Ross,
supra, 10 Cal.4th at p. 201 [whether counsel’s performance was deficient and
whether any deficiency prejudiced the petitioner, are both mixed questions subject
to independent review]; In re Lucas (2004) 33 Cal.4th 682, 694 [same].)
Even had respondent not conceded the point, we would have found, after
applying independent review, that the referee’s negative assessment of Demby’s
performance was inescapable. Demby made no opening statement at the guilt
phase of the trial and called no witnesses of his own, contenting himself to cross-
examine the witnesses called to the stand by other parties, i.e., the prosecutor and
petitioner’s codefendants Reilly and Morgan. While that strategy, standing alone,
is not per se unreasonable, Demby’s closing guilt phase argument made clear that
his strategy was to create a reasonable doubt in the minds of the jurors by
convincing them it was Boyd—not petitioner—who, along with Reilly and
possibly Marcus, went to the victims’ home that deadly night in May 1981, and
that Boyd was the actual killer. That Demby had planned on making this line of
argument his primary means of attacking the prosecution’s case is apparent from
his pretrial instructions to his investigators to investigate the Boyd connection and
to interview witnesses at the Vose Street apartments in an attempt to uncover
evidence of Boyd’s culpability. That this was Demby’s strategy is also apparent
from the absence of any other defense (other than to emphasize discrepancies in
the prosecution witnesses’ testimony) and by Demby’s own testimony at the
59
evidentiary hearing that more potent evidence of Boyd’s culpability would have
been consistent with his “defense theme.”
We thus turn to whether defense counsel’s failure to investigate was
prejudicial to petitioner.
2. Prejudice at the Guilt Phase
Demby’s unreasonable failure to conduct a more thorough and reasonably
comprehensive pretrial investigation into the Boyd connection, and his subsequent
failure to present reasonably available evidence of Boyd’s guilt at petitioner’s trial,
would not require relief on the ground of ineffective assistance unless his deficient
performance was prejudicial. (Wiggins v. Smith (2003) 539 U.S. 510, 534.) In
this context, we assess prejudice by evaluating three factors: What evidence was
available that counsel failed reasonably to discover? How strong was that
evidence? How strong was the evidence of guilt produced at trial? (See In re
Thomas, supra, 37 Cal.4th at p. 1265.) We have already described in detail the
evidence from various witnesses that implicated Boyd in the murders. To recap
here: Boyd was a felon who was a fugitive from the law. In the days following
the murders, he made comments to several people suggesting he was the actual
killer, including that he tripped on a child, then put a pillow over his face and
stabbed him. (There was evidence the victims were stabbed through a pillow.)
Boyd was heard to exclaim that he wanted his share of the money for the killing
and that petitioner changed the plan by failing to appear and would now get away
free because “he did not do anything.” Boyd threatened several people with
violence, warning them not to give his name to the police, and he habitually
carried a knife similar to the murder weapon. More than one witness reported that,
shortly after the murders, Boyd had cuts on his hands and tried to conceal their
origin, telling a false story about working on a friend’s car. Boyd concocted a
60
false alibi and coerced his wife and young stepson to support it, indicating a
consciousness of guilt. Boyd falsely claimed he had traversed Steven Rice’s
apartment early in the morning after the murders and saw petitioner and Reilly
together. Perhaps most incriminating, although Boyd claimed to have passed out
in his apartment the night of the murders, one witness saw him walking around the
apartment complex between 10:00 p.m. and 11:00 p.m., and another witness saw
him leave the apartment complex with his friend Marcus around 11:00 p.m. The
referee found the witnesses who provided the foregoing evidence were credible
and that Boyd, in denying the evidence, was not. This evidence, reasonably
available to counsel, was strong and persuasive, coming from several different
witnesses who had interlocking recollections of the night before and the days after
the murders.
The evidence from the witnesses petitioner now presents, missing at trial
but reasonably available to counsel, would have pointed the finger of guilt at
Boyd, undermined his alibi and severely damaged his credibility, which in turn
would have impeached two critical pieces of evidence on which the prosecution
relied to convict petitioner: Reilly’s alleged confession to Boyd in the laundry
room that petitioner was one of the killers, and Boyd’s claim that he saw petitioner
and Reilly together just a few hours after the murders. Indeed, the referee found
this latter assertion was untrue.
By contrast, the prosecution argued at trial that petitioner and Reilly
committed the murders, that petitioner was the actual killer, and that Reilly either
held the victims down or waited outside while petitioner alone stabbed them to
death. Subtracting Boyd’s testimony, the evidence that petitioner was the actual
killer was weak and circumstantial. Reilly did not testify. Although codefendant
Clifford Morgan testified, he knew of no evidence linking petitioner to the
murders. (People v. Hardy, supra, 2 Cal.4th at p. 126.) No eyewitness to the
61
crimes testified, and no witness placed petitioner at the scene of the crime at the
time of the murders. No witness reported seeing petitioner leave the apartment
complex the night of the crimes.
Although the murders spilled much of the victims’ blood, no blood
evidence linked petitioner to the crime scene. By contrast, police found a spot of
human blood on one of Reilly’s shoes. (People v. Hardy, supra, 2 Cal.4th at pp.
121-122.) (Michael Mitchell, Reilly’s roommate, reported hearing two male
voices and the shower running in the middle of the night. While this might
explain the police’s failure to find any blood evidence on petitioner’s clothes, it
may equally well have been Reilly and Boyd who took the showers.)
No fingerprint, footprint, hair or other forensic evidence connected
petitioner to the crimes. The murder weapon was never found. Petitioner was not
known to carry a knife, and no evidence was presented that he had ever used a
knife in any sort of criminal endeavor.
Although Harvey’s son told police he had heard both at school and from
Steven Rice that petitioner was one of the killers, he disavowed those statements at
the evidentiary hearing, explaining that Boyd had pressured him to say them.
Because Boyd, whom he feared, was in custody at the time of trial, Harvey’s son
would have testified and revealed the falsity of his accusations.
Aside from Boyd’s now discredited evidence, the main evidence
implicating petitioner in the murders came from Colette Mitchell, petitioner’s then
girlfriend. She testified she had passed out that fateful night and thus did not
know if petitioner had left the apartment and later returned. Her inability,
however, to account for petitioner’s whereabouts during the hours of the
murders—between sometime after 2:00 a.m., when she passed out, and 11:00 a.m.,
when she woke up and found petitioner sleeping in the apartment—is not the same
as saying she saw petitioner leave the apartment during the night. As far as
62
Colette knew, petitioner was with her in the apartment the entire night. The only
evidence petitioner left the apartment that night came in the form of a statement
Colette testified Reilly allegedly made to her.
Colette testified and recounted some of petitioner’s and Reilly’s comments
to her, revealing that petitioner made inconsistent statements about the crimes.
Although his comments implicated him in the conspiracy, he never admitted to
Colette that he was the actual murderer. For example, Colette testified that after
the murders, she and petitioner discussed his alibi “all the time,” but this may have
been because he participated in the conspiracy, not the actual murders. Colette
also testified that prior to the crimes, petitioner led her to believe he was going to
steal something from someone to enable an unnamed person to collect on some
insurance policy. But an anticipated theft is far different than the double murder
that was planned by Clifford Morgan and Reilly and eventually committed by
Reilly and his confederates.
Regarding the actual murders, Colette testified petitioner told her at least
twice that he had been to the victims’ home the night of the murders, but he also
made comments suggesting he was not the actual killer. Although Reilly admitted
to knowing the identity of the killers, petitioner denied such knowledge and
further denied he was the killer. When she asked petitioner directly whether he
was the killer, he also answered in the negative. Despite his suspicious comments
suggesting he knew many details surrounding the crimes, Colette conceded
petitioner never actually admitted having killed or stabbed anyone. In short,
Colette’s account of petitioner’s alleged statements was contradictory and
equivocal.
Colette also reported that Reilly told her Boyd and Marcus were supposed
to commit the crimes but had backed out because Reilly declined to go with them,
thereby suggesting it was petitioner who substituted in. This evidence could have
63
been met with the testimony of James Moss, who could have testified that he
heard Boyd angrily state that it was petitioner who had not shown up and that
Boyd had to go in his place.
Petitioner made many statements to Colette that suggested he participated
in the conspiracy to kill the victims and collect the insurance, but in none of them
did he admit that he actually stabbed the victims. For example, Colette testified
petitioner told her that Clifford Morgan was not worried about the trial delay
because his insurance proceeds were earning interest. This statement merely
shows petitioner had knowledge of the crimes and may have been a conspirator.
Similarly, his statement that Reilly was in charge, that he knew “for a fact” there
was only one killer, and that wire cutters were used to enter the house clearly
implicate him in the conspiracy but do not strongly support the prosecution’s
theory that it was petitioner, and not some other actor such as Reilly or Boyd, who
personally stabbed the victims. Although Colette testified petitioner received
$1,000, apparently for his role in the crimes, she admitted on cross-examination
that she did not know where the money came from, could not remember who
informed her of the money’s origin, could not remember the first time she saw the
money, but remembered seeing it in her cedar box. She could not even remember
whether it was she herself who put the money in the box. Moreover, this evidence
also was equivocal: Was it payment for petitioner’s part in the conspiracy or
because he actually killed the victims?
Colette also testified that petitioner asked her to help dispose of a pair of
shoes and the stolen M-1 carbine rifle, but this evidence similarly was equivocal.
Presumably petitioner sought the disposal of both items because they potentially
incriminated him in the conspiracy (though in fact no footprints were found), but
neither the shoes nor the rifle strongly demonstrate petitioner was the actual killer.
64
In short, although Colette testified and recounted several statements
petitioner had made that implicated him in the conspiracy to kill the victims for
financial gain, petitioner’s comments do not strongly support the prosecutor’s
theory that he was the actual killer. The persuasive power of Colette’s testimony
was further undermined by the fact she was subject to impeachment due to her
drug and alcohol use and that she admitted lying for petitioner at his preliminary
hearing.
In a habeas corpus petition alleging trial counsel’s investigation or
presentation of evidence was incompetent, “the petitioner must show us what the
trial would have been like, had he been competently represented, so we can
compare that with the trial that actually occurred and determine whether it is
reasonably probable that the result would have been different.” (In re Fields
(1990) 51 Cal.3d 1063, 1071.) After weighing the available evidence, its strength
and the strength of the evidence the prosecution presented at trial (In re Thomas,
supra, 37 Cal.4th at p. 1265), can we conclude petitioner has shown prejudice?
That is, has he shown a probability of prejudice “sufficient to undermine
confidence in the outcome”? (Strickland, supra, 466 U.S. at p. 694; In re Thomas,
at p. 1256.)
Were we considering a situation in which petitioner was convicted solely
on the theory that he was the actual killer—the person who personally stabbed
Nancy and Mitchell Morgan to death—we would conclude the amount and quality
of reasonably available evidence showing Boyd was the killer, coupled with the
general dearth of evidence indicating petitioner personally killed the victims,
undermined confidence in the verdicts to such an extent as to require that we
vacate the murder convictions.
But although the prosecutor proceeded primarily on the theory that
petitioner was the actual killer, he also presented to the jury two theories of
65
derivative liability: conspiracy, and aiding and abetting. As we explain, both
theories support the jury’s verdict of first degree murder.
a. Conspiracy
One who conspires with others to commit a felony is guilty as a principal.
(§ 31.) “ ‘Each member of the conspiracy is liable for the acts of any of the others
in carrying out the common purpose, i.e., all acts within the reasonable and
probable consequences of the common unlawful design.’ (1 Witkin & Epstein,
Cal. Criminal Law (3d ed. 2000) Elements, § 93, pp. 310-311; see also People v.
Kauffman (1907) 152 Cal. 331, 334 [92 P. 861].)” (People v. Flores (2005) 129
Cal.App.4th 174, 182.) Thus, if petitioner conspired with others to kill the victims
for financial gain, he is as guilty of their murders as the person who actually
stabbed them. (People v. Hardy, supra, 2 Cal.4th at pp. 188-189.)
The amended information demonstrates that the prosecutor intended to rely
on a conspiracy theory. That document charged petitioner with conspiracy “to
commit the crime of [m]urder for the purpose of collecting life insurance proceeds
upon the life of Nancy Carol Morgan and Mitchell Raymond Morgan.” Although
many of the alleged overt acts involve Reilly and Clifford Morgan only, the list of
24 overt acts also specifies that “Reilly and defendant Hardy met on May 20th at
the Vose Street apartments in Van Nuys with Colette Mitchell to formulate their
alibi.” In addition, “[s]ometime between 12:30 AM and 7:30 AM on the 21st of
May, defendants Reilly and Hardy left the Vos[e] Street apartments to commit the
murders at [Morgan’s home].” In addition, “Reilly, Hardy and Morgan, while in
custody and during the preliminary hearing, attempted to fabricate an alibi,”
including passing notes to each other in jail. Further, the information alleged that
“Reilly and defendant Hardy had over 60 contacts [with coconspirators] while
awaiting and during the preliminary hearing,” and that petitioner asked his brother
66
to dispose of an M-1 carbine rifle. The jury was given a copy of the amended
information listing the alleged overt acts.
With regard to conspiracy liability, the jury was instructed: “The persons
concerned in the commission or attempted commission of a crime who are
regarded by law as principals in the crime thus committed or attempted and
equally guilty thereof include:
“1. Those who directly and actively commit or attempt to commit the act
constituting the crime, or
“2. . . .
“3. Those who, whether present or not at the commission or attempted
commission of the crime, advise and encourage in its commission or attempted
commission.” (Italics added.)
Further instructions also make clear the prosecutor was relying on a
conspiracy theory of liability. With regard specifically to coconspirator liability
for murder, the jury was instructed that if it had a reasonable doubt any of the
charged defendants was present at the scene of the crime when the murders were
committed, it should acquit him, with this caveat: “However, if the evidence
establishes beyond a reasonable doubt that a defendant aided and abetted the
commission of or was a coconspirator in the commission of the offenses charged
in this case, the fact, if it is a fact, that he was not present at the time and place of
the commission of the alleged offenses for which he is being tried is immaterial
and does not, in and of itself, entitle him to an acquittal.
“A conspiracy is an agreement entered into between two or more persons
with the specific intent to agree to commit a public offense and with the further
specific intent to commit such offense, followed by an overt act committed in this
state by one or more of the parties for the purpose of accomplishing the object of
the agreement.
67
In order to find a defendant guilty of conspiracy, in addition to proof of the
unlawful agreement and specific intent, there must be proof of the commission of
at least one of the overt acts alleged in the information. It is not necessary to the
guilt of any particular defendant that he himself committed the overt act, if he was
one of the conspirators when such an act was committed.” (Italics added.)
After defining the meaning of the phrase “overt act,” the instructions
continued: “The act of one conspirator pursuant to or in furtherance of the
common design of the conspiracy is the act of all conspirators. Every conspirator
is legally responsible for an act of a coconspirator that follows as one of the
probable and natural consequences of the object of the conspiracy even though it
was not intended as a part of the original plan and even though he was not present
at the time of the commission of such act.” No doubt because Clifford Morgan
and Reilly were the ones who originally hatched the plot to kill the victims for the
insurance money, with petitioner joining the conspiracy later, the jury was also
instructed: “Every person who joins a criminal conspiracy after its formation and
who adopts its purposes and objects, is liable for and bound by the acts and
declarations of other members of the conspiracy done and made during the time
that he is a member and in pursuance and furtherance of the conspiracy. [¶] . . .
[¶] Evidence of any acts or declarations of other conspirators prior to the time such
person becomes a member of the conspiracy may be considered by you in
determining the nature, objectives and purposes of the conspiracy, but for no other
purpose.”
The prosecutor raised the conspiracy theory of first degree murder in
closing argument, stating that “based upon the facts of this case, . . . if one
conspires to commit a murder for the purposes of collecting insurance, what is it
other than premeditation and deliberation [justifying a verdict of first degree
murder]?” More pointedly, the prosecutor later argued: “We submit to you that
68
Mr. Hardy joined that conspiracy, and when he joins the conspiracy, he adopts
those acts [committed by Reilly and Morgan].”
The prosecution presented substantial evidence supporting its theory that
petitioner participated in a conspiracy to kill Nancy and Mitchell Morgan for
financial gain. For example, it presented evidence that Clifford Morgan was the
mastermind of the plot and stood financially to gain from some suspiciously
lucrative life insurance policies; that he recruited Mark Reilly to play the principal
role in carrying out the murder by offering to share the money and set him up as
the manager in a bar; and that Reilly tried to convince several people to commit
the murders, going so far as to pay someone (Marc Costello) in an aborted attempt
to have the victims killed. Strong evidence linked Reilly to the actual killings. As
we explained in our opinion on appeal: “When Debbie [Sportsman] read about the
murders in the newspaper the next day, she became hysterical and went to Reilly’s
apartment. She found him there with Hardy; Reilly was calm and both were
laughing and drinking. Reilly told her to behave normally so people would not
suspect something was amiss. Without revealing the identity of his crime partner,
Reilly admitted to her that he had gone with another person to Morgan’s home,
unlocked the front door, cut the security chain lock with bolt cutters, and entered
the house, his partner apparently entering the bedroom. Reilly said that when he
heard Nancy Morgan pleading for her life, he went to wait outside. His partner,
the actual killer, eventually emerged and told him Nancy ‘just wouldn’t die.’
Reilly told Debbie that ‘you just don’t know how it feels’ to stab someone. He
encouraged Debbie to speak to Hardy and another friend, Colette Mitchell, in
order to coordinate their alibi stories. He then gave her a few $100 bills that he
had received from Morgan.” (People v. Hardy, supra, 2 Cal.4th at pp. 120-121.)
In addition, Reilly could not explain how human blood came to be on his shoe.
69
Although the evidence that petitioner committed the murders was much
weaker, especially in light of the evidence at the reference hearing that Boyd was
the actual killer, he was strongly linked to the conspiracy. “According to Debbie
Sportsman, Reilly began associating with Hardy around May 10, 1981. She
testified that the two men had many private conversations during this period and
often drank and took drugs together. On the evening of May 20, 1981, the night of
the killings, Debbie met with Hardy and Reilly at the latter’s apartment. Reilly
spoke with Morgan on the telephone and asked him if he wanted to go through
with the killing. Morgan, who was in Carson City, answered that he did.” (People
v. Hardy, supra, 2 Cal.4th at p. 120.) Petitioner thereafter discussed his alibi with
Colette Mitchell “all the time,” and he coordinated his alibi with Reilly as well.
According to Colette, petitioner knew several details about the crimes, including
that the assailants had used a tool to cut the chain lock, that life insurance proceeds
were the reason for the killing, that the money was collecting interest, and that
Reilly was in charge. Most incriminating was petitioner’s receipt of $1,000 in
$100 bills after the murders, his instruction to Colette to dispose of his shoes on
learning that police might have discovered some footprints at the crime scene, and
his direction to dispose of the M-1 carbine rifle allegedly stolen from the Morgan
home. Even discounting petitioner’s inconsistent statements to Colette about
whether he had participated in the actual killing, there is ample evidence showing
he participated in the plan to kill the victims as part of a wider conspiracy to
defraud the insurance companies.
The jury relied, at least in part, on a conspiracy theory to convict petitioner,
for it separately convicted him of conspiracy to commit murder for purposes of
insurance fraud in violation of section 182. We thus conclude substantial evidence
supports the theory that petitioner was guilty of first degree murder on a
conspiracy theory.
70
b. Aiding and Abetting
The prosecutor also relied on an aiding and abetting theory of liability for
first degree murder, which provides an alternative reason for concluding petitioner
was not prejudiced at the guilt phase by Demby’s deficient investigation. Thus,
with regards to aiding and abetting liability, the jury was instructed: “The persons
concerned in the commission or attempted commission of a crime who are
regarded by law as principals in the crime thus committed or attempted and
equally guilty thereof include:
“1. Those who directly and actively commit or attempt to commit the act
constituting the crime, or
“2. Those who, with knowledge of the unlawful purpose of the person who
directly and actively commits or attempts to commit the crime, aid and abet in its
commission or attempted commission . . . .”
In addition, the jury was instructed: “One who aids and abets is not only
guilty of the particular crime that to his knowledge his confederates are
contemplating, but he is also liable for the natural and reasonable or probable
consequences of any act that he knowingly aided or encouraged.
“A person aids and abets the commission of a crime if, with knowledge of
the unlawful purpose of the perpetrator or the crime, he aids, promotes,
encourages or instigates by act or advice the commission of such crime. Mere
presence at the scene of a crime and failure to take steps to prevent a crime do not
in themselves establish aiding and abetting.”
The prosecutor argued this theory of liability to the jury, informing it that
“[i]f you find that this is a first degree murder and if you find that each one of
these individuals participated in that, either by aiding, abetting, by personally
becoming involved, by encouraging, by soliciting, by aiding and abetting, each
one of them individually [is guilty of first degree murder].” And later, the
71
prosecutor argued that although petitioner was not charged personally with
solicitation to commit murder because he was the one solicited by Reilly,
petitioner nevertheless “could be an aider and abettor.”
For much the same reasons we found substantial evidence supported a
conspiracy theory of liability for first degree murder, we also find substantial
evidence supports an aiding and abetting theory of liability. To recap:
Overwhelming evidence tied Reilly to the conspiracy and the murders, he told
people he solicited petitioner to participate, petitioner was often in Reilly’s
company in the days before and after the murders, petitioner was in the apartment
when Reilly received the final approval from Morgan to proceed with the murders,
petitioner discussed his alibi frequently in the days following the murders, he
knew many details about the crimes, and he instructed Colette Mitchell to help
dispose of a potentially incriminating M-1 carbine rifle and a pair of shoes.
We thus conclude substantial evidence supports the theory that petitioner
was guilty of first degree murder as an aider and abettor.
c. Conclusion
After weighing this evidence and considering what petitioner’s trial would
have looked like had he been represented by competent counsel (In re Fields,
supra, 51 Cal.3d at p. 1071), we conclude that although there is a reasonable
probability the jury would not have convicted petitioner on the prosecution’s
proffered theory that he was the actual killer, ample evidence remains that
petitioner was guilty of the murders on the alternative theories that he conspired
with, and aided and abetted, Reilly, Morgan and others to commit the murders.
As, according to their joint plan, Reilly, Boyd or possibly some third party killed
the victims in furtherance of their conspiracy to fraudulently obtain insurance
proceeds, petitioner, as a coconspirator and aider and abettor, is as guilty of the
72
murders as if he stabbed the victims himself. Because petitioner would have been
convicted of two first degree murders on these two theories of derivative liability
irrespective of Demby’s unreasonable failure to investigate and present evidence
of the Boyd connection, petitioner fails to demonstrate he would have achieved a
more favorable outcome at the guilt phase had Demby competently investigated
the Boyd connection. Accordingly, we conclude petitioner fails to demonstrate
prejudice at the guilt phase flowing from Demby’s deficient representation.
(Strickland, supra, 466 U.S. at pp. 687-688.)
3. Prejudice at the Penalty Phase
Our conclusion that petitioner was not prejudiced at the guilt phase by trial
counsel’s failure to investigate and present available evidence of Boyd’s
involvement in the murders does not end our inquiry; we must still determine
whether Demby’s failings prejudiced petitioner at the penalty phase. As we are
now concerned exclusively with the penalty phase, we must address a threshold
question raised by respondent: Would evidence suggesting Boyd was guilty of
murdering Nancy and Mitchell Morgan have been admissible at the penalty phase
of petitioner’s trial?
a. Admissibility of Boyd’s Guilt at the Penalty Phase
We have previously explained why evidence of Boyd’s possible guilt of the
murders did not fall outside the scope of our reference order in Hardy I. (See ante,
at pt. IV.A.2.) In a related argument, respondent contends such evidence should
not have been admitted at the hearing (or considered by the referee) because
evidence of Boyd’s possible guilt of the murders (not having been admitted at the
guilt phase) would have been inadmissible at the penalty phase of petitioner’s trial,
and Demby’s failure to offer it therefore could not have been deficient
performance. Respondent raised this objection at the reference hearing, thus
73
preserving it for our review. He also now takes exception to many of the referee’s
factual findings on this ground.
We overrule respondent’s exception because the referee correctly
concluded petitioner’s evidence of Boyd’s culpability would have been admissible
at the penalty phase. Evidence that Boyd was the actual killer—and that petitioner
was not present during the commission of the murders—would have been
admissible under factors (a), (j) and (k) of section 190.3 to show the circumstances
of the crimes and allow the jury to consider whether petitioner’s participation in
the offenses, which rendered him legally culpable for the murders, also justified
imposition of the harshest penalty. Because we find the evidence was admissible
on these grounds, we express no opinion on respondent’s assertion that the
evidence was inadmissible under In re Gay (1998) 19 Cal.4th 771, 814.17
17
The United States Supreme Court’s recent decision in Oregon v. Guzek
(2006) 546 U.S. 517 does not alter our conclusion. In Guzek, a capital defendant
sought to introduce new evidence showing he was not present at the time of the
murder. The Oregon Supreme Court held the Eighth Amendment to the United
States Constitution did not create a constitutional right enabling the defendant to
introduce this evidence at his sentencing proceeding. The high court affirmed,
explaining: “the federal question before us is a narrow one. Do the Eighth and
Fourteenth Amendments grant Guzek a constitutional right to present evidence of
the kind he seeks to introduce, namely new evidence that shows he was not present
at the scene of the crime. That evidence is inconsistent with Guzek’s prior
conviction. It sheds no light on the manner in which he committed the crime for
which he has been convicted. . . . We can find nothing in the Eighth or Fourteenth
Amendments that provides a capital defendant a right to introduce new evidence
of this kind at sentencing.” (Guzek, at p. 523.) “[S]entencing traditionally
concerns how, not whether, a defendant committed the crime. [Citation.] But the
evidence at issue here—alibi evidence—concerns only whether, not how, he did
so.” (Id. at p. 526.)
Even assuming without deciding that Guzek is retroactive to this case, the
evidence of lingering doubt petitioner argues Demby should have presented is
distinguishable from the evidence sought to be admitted in Guzek. Unlike in
Guzek, petitioner’s evidence that Boyd was the actual murderer and petitioner
(footnote continued on next page)
74
Having rejected respondent’s argument that the referee erred in admitting
evidence of Boyd’s possible guilt of the murders at the hearing, we turn, finally, to
the question whether Demby’s deficient performance regarding the investigation
and presentation of evidence of the Boyd connection prejudiced petitioner at the
penalty phase.
b. Prejudice Analysis
We have determined Demby acted unreasonably in failing to investigate,
discover and present evidence of Boyd’s possible culpability in the murders. We
have also determined that this evidence was reasonably available to Demby and
that it would have been admissible at the penalty phase of petitioner’s trial. The
final piece to the puzzle is one of prejudice. In order for petitioner to obtain relief
on the theory of ineffective assistance of trial counsel at the penalty phase, he must
establish that he suffered prejudice as a result of Demby’s failures. “Prejudice is
established when ‘ “there is a reasonable probability that, absent the errors [of
counsel], the sentencer . . . would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” [Citations.] As in the guilt
phase, reasonable probability is defined as one that undermines confidence in the
verdict.’ ([In re] Marquez, supra, 1 Cal.4th at p. 606.)” (In re Gay, supra, 19
Cal.4th at p. 790.)18 “In assessing prejudice [at the penalty phase], we reweigh the
(footnote continued from previous page)
merely a coconspirator, is relevant to how, and not whether, petitioner is guilty.
Evidence of the Boyd connection also “sheds . . . light on the manner in which he
committed the crime for which he has been convicted.” (Oregon v. Guzek, supra,
546 U.S. at p. 523.)
18
“Alternatively, the petitioner may establish that as a result of counsel’s
inadequacy, the prosecution case was not subject to meaningful adversarial testing,
thereby raising a presumption that the result is unreliable. (United States v. Cronic
(footnote continued on next page)
75
evidence in aggravation against the totality of available mitigating evidence.”
(Wiggins v. Smith, supra, 539 U.S. at p. 534.) As we explain, after engaging in
reweighing the evidence, we conclude there is a reasonable probability the jury,
had it heard the evidence indicating Boyd and not petitioner was most likely the
person who actually killed the victims, would have voted for a life sentence
instead of the penalty of death.
The aggravating evidence against petitioner consisted of the circumstances
of the offense, as presented in the guilt phase, and as augmented by three
photographs of the victims that were not admitted at the guilt phase. In addition,
the prosecution presented evidence of a prior incident involving petitioner that
required law enforcement intervention: “On August 6, 1980, Officers Hansen and
Wicks responded to a report of a domestic disturbance. They found Hardy
assuming a military marching pose holding a rifle. He appeared unaware of his
surroundings. Although he complied with Hansen’s request to put the rifle down,
Hardy refused to move away from it. At Hansen’s request, Hardy also removed
two knives from his waistband and placed them next to the rifle. Hardy then
produced a nunchaku[] and assumed a fighting stance. Although Officer Hansen
directed Hardy to place the nunchaku on the ground, Hardy remained in a fighting
stance for five or ten minutes. He eventually agreed to put down his nunchaku if
Officer Wicks put down his service revolver. When Wicks complied, Hardy
surrendered peacefully and explained he had just been in a family quarrel. The
rifle was not loaded. Hardy later pleaded guilty to misdemeanor possession of
(footnote continued from previous page)
(1984) 466 U.S. 648, 658-659.)” (In re Gay, supra, 19 Cal.4th at p. 790.) No
issue of error under Cronic is presented.
76
nunchakus and disturbing the peace; he was placed on probation.” (People v.
Hardy, supra, 2 Cal.4th at pp. 126-127.)
Petitioner’s mother testified to another incident, explaining she once called
the police after petitioner “punched his brother John and pulled a gold chain off
John’s neck.” (People v. Hardy, supra, 2 Cal.4th at p. 127.) When petitioner
realized his mother had called the police, “he kicked down her door.” (Ibid.) His
mother told police she was concerned petitioner had taken some PCP.
Petitioner’s showing in mitigation was meager. Carolyn Hardy, petitioner’s
mother, testified that “the nunchaku [petitioner] brandished belonged to his other
brother, Robert. She explained that Robert had told his family he intended to
commit suicide but [petitioner] did not believe him. When Robert carried out his
threat, [petitioner] blamed himself for Robert’s death. The day after Robert’s
death, [petitioner] threw himself off a mountain, broke both his legs, and was
bedridden for six months. Carolyn Hardy believed [petitioner] needed psychiatric
help.” (People v. Hardy, supra, 2 Cal.4th at p. 127.) In addition, “Carolyn Hardy
testified [petitioner] had participated in a program called Outward Bound, which
involved camping and hiking in Colorado. He was chosen for the program
because of his high scholastic potential. [Petitioner] presented no other
affirmative mitigating evidence at the penalty phase.” (Ibid.)
The prosecution’s theory of the case was that petitioner was the actual
perpetrator of the murders. The prosecutor argued Reilly did not stab the victims
himself, that he went to the Morgans’ home, but “became horrified” and left,
waiting outside while the victims were killed by a confederate. By contrast, the
prosecutor argued that petitioner personally stabbed both Nancy and Mitchell
Morgan and then walked out of the house and calmly described the scene to
Reilly.
77
Demby’s strategy at the penalty phase was to attempt to convince the jury
that a lingering doubt existed as to petitioner’s guilt. Indeed, the referee found
“Demby’s sole penalty phase defense was lingering doubt.” Thus, Demby argued:
“I have to respect [the jury’s guilt judgment] even though personally I don’t agree
with it. I have doubts. [¶] The things that are bothering me, I am not certain if
[petitioner] participated, if he did participate, what his participation was.” Demby
noted that when Reilly was arrested, Sportsman asked him about the night in
question, whether Reilly had left the apartment and whether petitioner had taken
part in the murder. As Demby recounted it, Reilly told Sportsman: “Well,
[petitioner] didn’t know I left. He was too loaded.”
Demby continued: “I guess that bothers me because I can’t, because of that
statement and others, I can’t be certain that [petitioner] is the killer. [¶] I keep
going back to the testimony and demeanor of Calvin Boyd because I honestly
believe Calvin Boyd participated and that thought causes problems because what
you are being asked to do is decide the fate of [petitioner], should he live or should
he die. Die in the gas chamber or should he spend the rest of his life in prison.”
“I am not talking about [being] certain beyond a reasonable doubt, but absolutely
certain what [petitioner’s] participation was.”
The jury was instructed and then retired to deliberate at 11:25 a.m. on
September 22, 1983, being excused at 3:45 p.m. later that day. Deliberations
continued all day on September 23, 1983, and resumed at 9:10 a.m. on Monday,
September 26, 1983. The jury announced it had reached a verdict at 10:12 a.m.
that same day. It thus appears the jury deliberated less than two days to decide
both Reilly and petitioner deserved the death penalty.
Petitioner has discovered considerable mitigating evidence that was not
presented at his penalty phase, and this evidence forms the basis of his petition in
Hardy I. But without considering this mitigating evidence, we conclude that, had
78
the jury been aware that petitioner was likely not the actual killer, but merely
participated in the conspiracy to kill for insurance proceeds, there is a reasonable
probability the jury would have viewed the balance of aggravating and mitigating
circumstances differently and concluded petitioner did not deserve the death
penalty. (In re Gay, supra, 19 Cal.4th at p. 790.) He was young and had but a
minor criminal record. He had experienced substantial emotional problems after
his brother committed suicide and may have blamed himself for failing to take his
brother’s warnings seriously. He descended into despair and drug abuse, and
conspired with Reilly, Morgan and others to kill the victims for money. This
much the jury knew.
But the jury operated under the understanding, fostered by the prosecutor’s
closing argument, that petitioner personally stabbed the victims. If that were true,
petitioner’s moral responsibility for the crimes would be at the zenith, with no
coconspirator having greater culpability. That he killed more than one victim, that
he killed a child, that he did so in such a brutal and horrific manner, that he did so
simply for money and according to a preconceived plan, all these factors
substantially aggravated the case and amply justified the jury’s verdict that he
should suffer the death penalty for his crimes. But if he did not kill anyone, if he
merely conspired with Reilly and Morgan and Boyd, if he did not show up at the
appointed hour, if he was lying passed out from drink and drugs that fateful night
instead of stabbing a defenseless woman and child in the dark of night, the nature
of his moral culpability is quite different. More to the point, the jury’s weighing
of the relative aggravating and mitigating factors would have been entirely
different. Under the circumstances, Demby’s unreasonable failure to discover and
present evidence of Boyd’s involvement so undermines our confidence in the
penalty verdict (In re Gay, supra, 19 Cal.4th at p. 790; In re Marquez, supra,
1 Cal.4th at p. 606) that we conclude, after weighing the totality of the evidence
79
(Wiggins v. Smith, supra, 539 U.S. at p. 534), that we must vacate the penalty
judgment.19
V. CONCLUSION
In light of the above discussion, the petition for a writ of habeas corpus in
Hardy II, S093694, is granted in part and denied in part, as explained below:
(1) Petitioner fails to demonstrate he is actually innocent of the crimes of
which he was convicted. To the extent the petition for a writ of habeas corpus in
Hardy II is based on that allegation, it is denied. To the extent the order to show
cause in Hardy II was based on a claim of actual innocence, it is discharged.
(2) Although petitioner has proven, and respondent concedes the truth of,
his allegations that his trial counsel unreasonably failed to investigate, discover
and present available evidence of Calvin Boyd’s culpability for the murders of
19
Because we conclude there was substantial evidence to support aiding and
abetting as an alternative theory of petitioner’s liability for the murders, we also
reject petitioner’s argument, raised at oral argument, that the special circumstance
allegations cannot attach to a murder that a person did not personally commit. At
the time of the crimes (1981), section 190.2, subdivision (b) provided: “Every
person whether or not the actual killer found guilty of intentionally aiding,
abetting, counseling, commanding, inducing, soliciting, requesting, or assisting
any actor in the commission of murder in the first degree shall suffer death or
confinement in state prison for a term of life without the possibility of parole, in
any case in which one or more of the special circumstances enumerated [in
certain] paragraphs . . . of subdivision (a) of this section has been charged and
specially found under Section 190.4 to be true.” (§ 190.2 , former subd. (b), as
added by initiative, Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978),
italics added.) Petitioner’s jury was instructed with the then current version of
CALJIC No. 8.84 (1981 rev.) (4th ed. 1979), which tracked the language of this
statute.
Accordingly, even if petitioner was not the actual killer and is guilty of first
degree murder only as an aider and abettor, he may still, on remand, be sentenced
to life without the possibility of parole or death following a new penalty phase
trial. The same conclusion follows were he guilty of first degree murder on a
conspiracy theory. (People v. Hernandez (2003) 30 Cal.4th 835, 866.)
80
Nancy and Mitchell Morgan, this failure does not require vacation of his two
convictions for first degree murder with special circumstances because this new
evidence does not undermine our confidence that the jury would nevertheless have
convicted him of murder by relying on a conspiracy theory, there being ample
evidence petitioner was a coconspirator in the scheme to kill the victims in order
to share in the anticipated insurance payout. To the extent the petition for a writ of
habeas corpus in Hardy II is based on that allegation, it is denied. To the extent
the order to show cause in Hardy II was based on a claim that counsel’s
ineffectiveness requires we vacate the guilt judgment, it is discharged.
(3) Because the jury returned a verdict of death after a penalty trial in
which the prosecution argued that petitioner was the actual killer, and because
substantial doubt now exists that this was so, this new evidence casting doubt that
petitioner was the killer so undermines our confidence in the penalty verdict (In re
Gay, supra, 19 Cal.4th at p. 790; In re Marquez, supra, 1 Cal.4th at p. 606) that
we conclude, after reweighing the totality of the evidence (Wiggins v. Smith,
supra, 539 U.S. at p. 534), that a different, more favorable result was reasonably
probable had this evidence been presented to the jury. Accordingly, we grant the
petition in Hardy II to that extent and vacate the judgment insofar as the penalty of
death was imposed.
(4) The balance of the petition in Hardy II, which raises a number of other
issues, is denied as having failed to raise a prima facie case for relief.
(5) Having granted petitioner relief from the penalty judgment in Hardy II,
we need not resolve his various other challenges to the penalty judgment in
Hardy I, S022153. Accordingly, the order to show cause is discharged, and the
petition for a writ of habeas corpus in Hardy I, to the extent it was based on the
claim that trial counsel was ineffective for failing to investigate and present
81
reasonably available mitigating evidence, is dismissed as moot. We express no
opinion as to whether trial counsel was ineffective on that ground.
(6) The balance of the petition in Hardy I, which raises a number of other
issues, is denied as having failed to raise a prima facie case for relief.
Petitioner is remanded to the custody of the Sheriff of the County of Los
Angeles (see § 1493) to be held pending retrial of the penalty phase. Respondent
shall cause notice of the writ to be served on the District Attorney of the County of
Los Angeles upon the finality of this opinion. (See § 1382, subd. (a)(2).) Should
petitioner not be granted a new penalty trial within the time specified in section
1382 or any continuances granted by the superior court, the court shall impose the
penalty of life imprisonment without the possibility of parole.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
82
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Hardy on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S093694 & S022153
Date Filed: July 26, 2007
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Fern M. Laethem, Lynne S. Coffin and Michael J. Hersek, State Public Defenders, and Philip M. Brooks,
Robin Kallman and Peter Silten, Deputy State Public Defenders, for Petitioner James Edward Hardy.
__________________________________________________________________________________
Attorneys for Respondent:
Daniel E. Lungren, Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, George Williamson, David
P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack, and
Pamela C. Hamanaka, Assistant Attorneys General, Keith H. Borjon, Susan Lee Frierson, William T.
Harter, Robert S. Henry, Robert F. Katz, Sharlene A. Honnaka and Roy C. Preminger, Deputy Attorneys
General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter Silten
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Roy C. Preminger
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2263
Opinion Information
| Date: | Docket Number: |
| Thu, 07/26/2007 | S022153 |
Parties
| 1 | Hardy, James Edward (Petitioner) Represented by Office Of The State Public Defender-Sf Peter R. Silten / Robin L. Kallman 221 Main Street, 10th Floor San Francisco, CA |
| 2 | Department Of Corrections (Non-Title Respondent) Represented by Attorney General - Los Angeles Office Roy Preminger, Deputy Attorney General 300 S. Spring Street, 5th Floor Los Angeles, CA |
| Disposition | |
| Apr 18 2007 | Case Consolidated (see lead case) |
| Dockets | |
| Jul 26 1991 | Petition for writ of (AA-related) Habeas Corpus filed (37 Pp. Excluding Exhibits) |
| Dec 30 1991 | Filed: Petnr's Suppl Allegations & Suppl Exhibits in support of Petn. (14 Pp. Excluding Exhibits) |
| Dec 31 1991 | Informal response requested Letter sent to respondent requesting informal response (Rule 60); due 1-31-92. Any reply shall be served & filed within 15 days of service & filing of response. |
| Jan 31 1992 | Application for Extension of Time filed To file Informal Response. |
| Feb 11 1992 | Extension of Time application Granted To 3-2-92 To file Informal Response. |
| Feb 24 1992 | Filed: Petnr's Suppl. Allegation in support of Petition (12pp) |
| Mar 2 1992 | Informal Response filed (AA) (21 Pp. Excluding Exhibit) |
| Mar 13 1992 | Application for Extension of Time filed To file reply To Informal Response. |
| Mar 17 1992 | Extension of Time application Granted To 3-27-92 To file Petnr's reply To Informal response |
| Mar 27 1992 | Reply to Informal Response filed (AA) (29 pp. excluding Exhibits) |
| Apr 23 1992 | Order to show cause issued The petition for writ of habeas corpus, filed 7-26-91, as supplemented by the additional allegations filed 12-30-91 and 2-24-92, has been read and considered. The Director of Corrections is ordered to show cause before this court at its courtroom, when the proceeding is ordered on calendar, why petitioner is not entitled to reversal of the penalty judgment because his trial attorney rendered constitutionally ineffective assistance of counsel by failing to call, at the penalty phase of the trial, available witnesses who would have presented evidence of mitigating circumstances. The written return is to be served and filed on or before 5-4-92. (votes: Lucas, CJ, Mosk, Panelli, Kennard and Baxter, J.J.) |
| May 4 1992 | Application for Extension of Time filed to file return to OSC. |
| May 8 1992 | Extension of Time application Granted to 6-3-92 to file return to OSC. |
| May 29 1992 | Motion to dismiss filed (in AA proceeding) Motion by respondent to dismiss petition for writ of habeas corpus. |
| Jun 2 1992 | Opposition filed by petnr to motion to dismiss. (2 pp.) |
| Jun 17 1992 | Motion to dismiss denied The "Motion to Dismiss Petition for Writ of Habeas Corpus," filed May 29, 1992, is denied. Where petitioner has placed trial attorney's competence in issue, no privilege as to communications are relevant to that inquiry. (In re Gray (1981) 123 Cal.App.3d 614; Evid. Code, section 958.) The further request for findings of fact adverse to petitioner James Edward Hardy is also denied. Respondent's request for an additional two weeks to file the return is granted. The return shall be filed on or before July 1, 1992. |
| Jul 1 1992 | Written return filed (18 Pp. Excluding Exhibits) |
| Jul 13 1992 | Application for Extension of Time filed To file Traverse To Return. |
| Jul 14 1992 | Extension of Time application Granted To 8-17-92 To file Traverse. |
| Aug 17 1992 | Traverse to return filed (43 Pp. Excluding Exhibits) |
| Dec 7 1992 | Received letter from: State P.D. to advise the Court of Recent Development in case & to request the filing of Suppl Allegation & Supplemental Exhibit to Petn. |
| Dec 30 1992 | Filed: Suppl Allegation & Suppl Exhibit in support of Petn. |
| Apr 28 1993 | Order filed: Respondent is ordered to file a supplemental return to the order to show cause, responding to the following: (1) Trial counsel Michael Demby provided ineffective assistance of counsel by failing to present, at the penalty phase of the trial, available mitigating evidence related to petitioner's participation in the Outward Bound program, including the views of Charles Behrensmeyer. (2) Trial counsel Michael Demby provided ineffective assistance of counsel by failing to present, at the penalty phase of the trial, available mitigating evidence related to petitioner's diminished capacity, including the views of Dr. David Smith and evidence of petitioner's prior commitment in Camarillo State Hospital. (See in re Sixto (1989) 44 Cal.3d 1247, 1252 [failure of the return to dispute facts in the petition and traverse permits resolution without an evidentiary hearing.]) The supplemental return shall be filed no later than 30 days from the date of this order. |
| Apr 28 1993 | Reference hearing ordered THE COURT: Based on the record in this matter and good cause appearing, it is ordered: The Hon. Robert M. Mallano, Presiding Judge of the Los Angeles Co. Superior Court, shall select a Judge of the Los Angeles Co. Superior Court to sit as a referee in this proceeding and shall promptly notify this court of the referee selected. After appointment by this court, the referee shall take evidence and make findings of fact on the following questions regarding the case of People v. James Edward Hardy (Los Angeles Co. Sup. Ct. No. A148767; Judge Robert Fratianne): 1. Did petitioner Hardy engage in an act of heroism while employed as a driver for the Southern California Rapid Transit District? 2. Was defense counsel Michael Demby made aware of the facts surrounding the incident? 3. What were Mr. Demby's reasons why he did not present evidence of the incident? 4. Were those reasons supportable? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. |
| May 19 1993 | Referee appointed Hon. Paul G. Flynn, Judge of the Los Angeles County Superior Court, appointed as referee. |
| May 27 1993 | Application for Extension of Time filed To file Suppl Return. |
| Jun 2 1993 | Extension of Time application Granted To 6-28-93 To file Suppl return To Osc. |
| Jun 28 1993 | Filed: Supplemental return to OSC (20 Pp. Excluding Exhibit) |
| Jul 12 1993 | Application for Extension of Time filed To file Suppl Traverse. |
| Jul 14 1993 | Extension of Time application Granted To 8-16-93 To file Suppl Traverse To Suppl Return. |
| Aug 16 1993 | Filed: Suppl Traverse to Suppl return (27 Pp.) |
| Dec 30 1993 | Letter sent to: Judge Paul Flynn (referee), advising that the court has declined to amend the order of reference or take any other action in response to the supplemental briefs filed with the Supreme Court in this case. |
| Jul 1 1994 | Filed: Letter from State P.D., dated 6-30-94, requesting Clarification for Referee Paul Flynn. |
| Jul 1 1994 | Filed: Supplemental Exhibits in support of Petn. |
| Jul 12 1994 | Filed: Letter from Resp, dated 7-12-94, Addressing Petnr's request for Clarification of Order. |
| Jul 14 1994 | Motion to strike filing respondent's motion to strike petitioner's exhibits W, X, Y, Z and AA. |
| Jul 20 1994 | Order filed: The four questions set forth in the order of this court filed in this case on 4-28-93, are amended to read as follows: (1) Did petitioner Hardy engage in an act of heroism while employed as a driver for the Southern California Rapid Transit District? (2) Was defense counsel Michael Demby made aware of the facts surrounding the incident? (3) What were Mr. Demby's reasons why he did not present evidence of this incident, or the uncontradicted evidence of other available witnesses who would have provided mitigating evidence at the penalty phase of the trial? (4) Were Mr. Demby's reasons supportable? |
| Jul 25 1994 | Opposition filed By Petnr to Resp's motion to strike Exhibits W, X, Y, Z and Aa. |
| Aug 24 1994 | Order filed: Respondent's motion to strike petitioner's exhibits W, X, Y, Z and AA, filed with this court on July 14, 1994, is granted without prejudice to petitioner's right to seek admission of the evidence at the evidentiary hearing in this case, to the extent the alleged facts contained in the aforesaid exhibits are deemed relevant by the referee to the issues to be decided under the terms of the amended reference order. |
| Nov 26 1996 | Motion filed Emergency motion by Petnr for Order directing Referee to Continue Evidentiary Hearing (Hearing to Resume on 12-2-96). |
| Nov 26 1996 | Order filed: "Emergency Motion for Order Directing Referee to Continue Evidentiary Hearing," filed 11-26-92 in this court is granted. Judge Paul Flynn of LA S.C. directed to continue matter until 1-6-97 or later. |
| Sep 21 1999 | Referee's report filed |
| Sep 21 1999 | Letter sent to: Counsel Re Referee's Report: Exceptions to Report & Simul. briefs on the merits Due 10-21-99; Any Responses Due 30 Days Thereafter. |
| Oct 15 1999 | Filed: Letter from State P.D., requesting that the record from the evidentiary hearing be deemed confidential pursuant to the order from the referee, Los Angeles Co. Superior Court Judge Paul G. Flynn. |
| Oct 19 1999 | Application for Extension of Time filed By Petnr to file brief on the merits & Exceptions to Report of Referee. |
| Oct 20 1999 | Application for Extension of Time filed To file Resp's Exceptions To Referee's Report and brief on the merits. |
| Oct 21 1999 | Extension of Time application Granted On Application of the parties and Good Cause appearing, it Is Ordered that the time to Serve and file Exceptions to Report of the Referee and Simultaneous briefs on the merits Is extended to and Including 12/20/99. Any Responses Shall be Served and filed 30 Days Thereafter. |
| Nov 9 1999 | Filed: Record from Evidentiary Hearing: 29 Vols. R.T. Plus Exhibits, Sealed Documents, Motions Etc. |
| Nov 16 1999 | Filed: Resp's Opposition to Petnr's request that Protective Orders Remain in Full Force and Effect. |
| Dec 1 1999 | Filed: Reply to Resp's Opposition to Petitioner's request that Protective Orders issued by the Referee Remain in Full Force and Effect. |
| Dec 15 1999 | Application for Extension of Time filed By Resp to file Exceptions to Report of Referee and brief on the merits. |
| Dec 16 1999 | Application for Extension of Time filed To file Petitioner's brief on the merits and Exceptions To the Report of the Referee. |
| Dec 20 1999 | Filed: Suppl Declaration of Atty Peter Silten |
| Jan 7 2000 | Extension of Time application Granted On applic. of the parties and good cause appearing it is ordered that the time to serve and file exceptions to report of the referee and simultaneous briefs on the merits is extended to and including 2/18/2000. Any response shall be served and filed 30 days thereafter. No further extensions of time are contemplated |
| Feb 16 2000 | Application for Extension of Time filed To file Respondent's brief on the merits and Exceptions To the Report of the Referee. |
| Feb 16 2000 | Application for Extension of Time filed To file Petitioner's brief on the merits and Exceptions To the Report of the Referee |
| Mar 2 2000 | Extension of Time application Granted On applic. of the parties and good cause appearing, it is ordered that the time to serve and file exceptions to report of the referee and simultaneous briefs on the merits is extended to and including 4/18/2000. No further extensions of time will be granted. Any responses shall be served and filed 30 days thereafter. |
| Apr 11 2000 | Application for Extension of Time filed To file Petner's brief on the merits and Exceptions To the Report of the Referee |
| Apr 11 2000 | Application for Extension of Time filed To file Respondent's Exceptions To Report of the Referee and brief on the merits. |
| Apr 18 2000 | Extension of Time application Granted To 5/3/2000 To file Exceptions To Report of the Referee and Simultaneous briefs on the merits. |
| May 3 2000 | Exceptions/briefing filed re referee's report Respondent's brief on the merits & exceptions to the referee's findings. |
| May 3 2000 | Exceptions/briefing filed re referee's report Petitioner's brief on the merits and exceptions to the report of the referee. |
| May 3 2000 | Filed: letter from petitioner, dated May 3, 2000, re: petitioner's pleadings filed this date. |
| May 24 2000 | Application for Extension of Time filed To file Resp's response To Petner's brief on the merits and Exceptions To the Report of the Referee |
| May 26 2000 | Extension of Time application Granted To 7/31/2000 To file A response To Petner's Exceptions To Report of the Referee and brief on the merits. |
| Jun 1 2000 | Application for Extension of Time filed To file Petner's reply To Resp's brief on the merits and Exceptions To the Referee's Findings. |
| Jun 6 2000 | Extension of Time application Granted To 8/1/2000 To file Petner's reply To Resp's brief on the merits and Exceptions To the Referee's Report . |
| Jun 9 2000 | Order filed: The Order filed on 6-6-2000, Is Amended to Read as Follows: on Applic. of Petnr and Good Cause appearing, it Is Ordered that The time to Serve And file Petnr's reply to Resp's brief on the merits And Exceptions to the Referee's Report Is extended to And Including 8-1-2000. |
| Jun 29 2000 | Application for Extension of Time filed To file Respondent's reply To Petitioner's brief on the merits and Exceptions To the Report of the Referee. [Faxed SF |
| Jul 7 2000 | Extension of Time application Granted To 8/1/2000 to file resp's reply to petner's brief on the merits and exceptions to the report of the referee. |
| Jul 10 2000 | Received letter from: Resp; dated 7/5/2000. |
| Aug 1 2000 | Response brief re referee's report (awaiting more) Petitioner's reply to respondent's brief on the merits and exceptions to the report of the referee. (126 pp.) |
| Aug 1 2000 | Response brief re referee's report (fully briefed) Respondent's reply to petitioner's brief on the merits & exceptions to the report of the referee. (114 pp.) |
| Nov 1 2000 | Order filed The request by petitioner James Hardy, filed with this court on October 15, 1999, that the protective orders of the referee, the Honorable Paul Flynn, Los Angeles County Superior Court, "remain in full force and effect, and that the record of the proceedings in this case not be disclosed to anyone who is not a party to this proceeding" is denied. The protective orders of the referee, dated February 16, 1996, and September 20, 1996, are hereby vacated. |
| Jan 12 2001 | Letter sent to: Deputy State Public Defender Peter Silten advising that we have received the document entitled "Supplemental Allegations to Conform the Pleadings to the Proof," which he has submitted for filing in this case. The court has instructed the clerk to file this document as a new petition for writ of habeas corpus. The petition was filed as case no. S093694 on December 13, 2000. |
| Apr 18 2007 | Case consolidated - all subsequent events to be docketed in: S093694. NOTE: the following order was filed this date in case No. S093694: Good cause appearing, the above entitled case is consolidated with In re Hardy on Habeas Corpus, S022153 for purposes of oral argument and opinion. The parties are directed to confine their arguments to the following issues raised by the allegations in In re Hardy on Habeas Corpus, S093694: (1) Is petitioner entitled to reversal of his guilt judgment because he is innocent of the capital crimes of which he was convicted, in that a third party named Calvin Boyd committed the murders; (2) Did petitioner's trial counsel render constitutionally ineffective assistance of counsel by failing to present evidence demonstrating possible third party culpability and, if so, does such ineffective assistance require reversal of either the guilt or penalty phase judgments? George, C.J., was absent and did not participate. |
| Apr 18 2007 | Case ordered on calendar to be argued on Tuesday, May 1, 2007, at 1:30 p.m., in San Francisco |
| May 1 2007 | Cause argued and submitted |
| Jul 25 2007 | Notice of forthcoming opinion posted |
| Jul 26 2007 | Note: Opinion filed in consolidated case The petition in Hardy II (S093694) is granted in part and denied in part; the judgment is vacated insofar as the penalty of death was imposed. The petition in Hardy I (S022153), to the extent it was based on the claim that trial counsel was ineffective for failing to investigate and present reasonably available mitigating evidence, is dismissed as moot. The balance of the petition in Hardy I is denied. Opinion by Werdegar, J. ----- joined by George C.J., Kennard, Baxter, Chin, Moreno, Corrigan, JJ. |
| Aug 28 2007 | Letter sent to counsel: opinion now final The opinion, filed on July 26, 2007, is now final. No remittitur will issue. |
| Briefs | |
| Jul 1 1992 | Written return filed |
| Aug 17 1992 | Traverse to return filed |
| Aug 1 2000 | Response brief re referee's report (fully briefed) |
