Filed 3/3/05
IN THE SUPREME COURT OF CALIFORNIA
In re PETER SAKARIAS
S082299
on
Habeas
Corpus.
)
In re TAUNO WAIDLA
S102401
on
Habeas
Corpus.
In 1990, petitioners Peter Sakarias and Tauno Waidla were each, in separate
trials, convicted of first degree murder with special circumstances and sentenced
to death in the killing of Viivi Piirisild. We affirmed each of their convictions and
sentences on automatic appeal (People v. Sakarias (2000) 22 Cal.4th 596
(Sakarias); People v. Waidla (2000) 22 Cal.4th 690 (Waidla)), but issued orders to
show cause in response to their petitions for writs of habeas corpus, on claims the
prosecutor, in each trial, had presented factual theories inconsistent with those
presented at the codefendant’s trial. In response to Waidla’s petition, we also
specified a procedural issue: whether claims of error under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda) are cognizable on habeas corpus. On receipt of
the returns and traverses, we consolidated the two causes for consideration and
decision and appointed a referee to hear evidence and make factual findings. The
referee has now issued his report, and the parties have filed briefs on the merits.
The evidence at petitioners’ trials showed they both participated in the fatal
attack on Viivi Piirisild, which was perpetrated with a hatchet and a knife. (See
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Sakarias, supra, 22 Cal.4th at pp. 611-613; Waidla, supra, 22 Cal.4th at p. 710.)
But both petitioners contend their joint prosecutor, Los Angeles County Deputy
District Attorney Steven Ipsen, inconsistently and falsely portrayed their
respective roles in the attack, attributing to each, in their respective trials, a series
of three blows struck to the victim’s head with the blade of the hatchet. Petitioners
claim this prosecutorial inconsistency deprived them of due process, requiring that
their death sentences be vacated. We agree with Sakarias that the prosecutor
violated his due process rights by intentionally and without good faith justification
arguing inconsistent and irreconcilable factual theories in the two trials, attributing
to each petitioner in turn culpable acts that could have been committed by only
one person. We also agree this violation prejudiced Sakarias, entitling him to
relief. We do not decide whether the prosecutor’s conduct was a due process
violation as to Waidla, as we conclude any such violation was harmless in his
case.
Finally, we hold Miranda claims are cognizable on habeas corpus in
California courts, but that such a claim is subject to denial on procedural grounds
where, because it rests on facts in the appellate record, the claim was already
raised and rejected, or could have been raised but was not, on direct appeal. (In re
Harris (1993) 5 Cal.4th 813, 824-829; In re Waltreus (1965) 62 Cal.2d 218, 225;
In re Dixon (1953) 41 Cal.2d 756, 759.) Other procedural bars, of course, may
also apply to a Miranda claim in a given case.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Crime
Waidla and Sakarias were both born in Estonia while that nation was part
of the Soviet Union. They met as conscripts in the Soviet Army, from which they
defected together, coming in 1987 to Los Angeles. There, they were taken under
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the wing of an Estonian-American couple, Avo and Viivi Piirisild, who offered to
help them obtain jobs and education. For a period in 1987-1988, Waidla lived in
the Piirisilds’ guest house, performing remodeling work and other chores in
exchange for his room and board. (Sakarias, supra, 22 Cal.4th at p. 609; Waidla,
supra, 22 Cal.4th at pp. 705-707.)
Relations soon soured between petitioners and the Piirisilds. In May 1988,
Waidla demanded the Piirisilds give him money or a sports car they had promised
him for his work and threatened, otherwise, to report them for doing construction
without a permit. When the Piirisilds told Waidla to leave their home, Waidla
threatened to hurt or kill Avo. Later, Viivi received a postcard with a rattlesnake
on it from Sakarias and Waidla, who were traveling together. Sakarias later told
police he believed Viivi had been spreading harmful rumors about him and Waidla
within the Estonian community, damaging their prospects for help from other
Estonians around North America. (Sakarias, supra, 22 Cal.4th at pp. 610, 612;
Waidla, supra, 22 Cal.4th at pp. 707-709.)
During early July 1988, petitioners broke into the Piirisilds’ unoccupied
cabin in Crestline. They stayed for several days, leaving only when they ran out
of food and taking with them various items of the Piirisilds’ property, including a
hatchet. On July 12, angry, hungry, and in need of money, they went to the
Piirisilds’ North Hollywood home and broke in through the back door. They ate
food from the kitchen and took some jewelry while waiting for Viivi to return
home. Sakarias later told the police he and Waidla were planning to get money for
food and to confront Viivi and frighten her into giving them the sports car; he also
said that having contemplated killing themselves because of their poor situation,
they decided to kill Viivi first so “ ‘she is not gonna see my funeral’ ” or, with her
husband, “ ‘laugh on us for the rest of their lives.’ ” (Sakarias, supra, 22 Cal.4th
at pp. 610, 612-613; Waidla, supra, 22 Cal.4th at pp. 709-710.)
3
When Viivi entered the house through the front door, petitioners
immediately attacked her, using a knife and the hatchet they had taken from the
Crestline cabin. They bludgeoned her with the blunt end of the hatchet, stabbed
her with the knife, and chopped at her with the hatchet blade. Overall, the medical
examiner found five blunt force impacts to Viivi’s head (which fractured her skull
and facial bones, knocked out her teeth, and broke her larynx), four stab wounds to
her chest (two of which passed through vital organs), and three chopping wounds
to her upper head. One of this last group of injuries, inflicted before death, was
struck with “tremendous” force, penetrating Viivi’s skull completely. The other
two chopping wounds were inflicted with somewhat less force, after or around the
time of death. The medical examiner attributed Viivi’s death to the combination
of wounds, several of which could have been fatal individually. After the attack in
the entryway, petitioners dragged Viivi down the hall to a bedroom, where her
body was found. According to the medical examiner’s testimony at Waidla’s trial,
an abrasion on Viivi’s lower back, caused by rubbing of her skin against another
surface (which could have been incurred when she was dragged to the bedroom),
was inflicted after her death. (Sakarias, supra, 22 Cal.4th at pp. 611-613; Waidla,
supra, 22 Cal.4th at p. 710.)
Sakarias told police that during the initial attack he wielded the knife while
Waidla used the hatchet. Sometime later, at Waidla’s direction, he went to the
bedroom and chopped Viivi’s head twice with the hatchet. (Sakarias, supra, 22
Cal.4th at p. 613.) Waidla gave a statement admitting only a single bludgeoning
blow, with the back of the hatchet at the outset of the attack, and denying any
memory of how the rest of the attack proceeded. He recanted even that confession
at his trial, testifying he had left Los Angeles three days before Viivi Piirisild was
killed. (Waidla, supra, 22 Cal.4th at p. 712.)
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Petitioners sold the jewelry they took and used Viivi’s credit cards for
airline tickets, telephone calls, and other purchases. They were arrested more than
a month later near the United States-Canada border in New York State. (Sakarias,
supra, 22 Cal.4th at p. 612; Waidla, supra, 22 Cal.4th at pp. 710-711.)
B. The Inconsistent Factual Theories
Petitioners were jointly charged with Viivi Piirisild’s murder, but their
cases were severed after Sakarias was found incompetent to stand trial. (Waidla,
supra, 22 Cal.4th at p. 704.) Waidla’s jury trial began with the prosecution’s
opening statement on October 24, 1990; penalty arguments were made on
January 2, 1991. Sakarias’s trial began on September 30, 1991, with penalty
arguments on October 30, 1991.
As reflected in the summary above, the evidence at petitioners’ trials, taken
as a whole, strongly suggests Waidla (who first wielded the hatchet, according to
both petitioners’ statements) struck the first, antemortem blow with the hatchet
blade in the entryway, while Sakarias (who admitted doing so) inflicted the two
post- or perimortem chopping wounds in the bedroom. (There was no evidence in
either trial to suggest the perpetrators switched weapons during the initial attack.)
But the prosecutor, Ipsen, did not argue at either trial the version of the attack best
supported by all the evidence. Instead, at each defendant’s trial he maintained the
defendant on trial had inflicted all the chopping wounds.
In Waidla’s trial, Ipsen introduced Waidla’s admission that he, rather than
Sakarias, had initially used the hatchet against Viivi Piirisild. (Sakarias’s
confession to police, in which he admitted striking two blows with the hatchet in
the bedroom, was not introduced at Waidla’s trial.) Although Waidla only
admitted hitting Viivi with the back of the hatchet, Ipsen argued the jury should
find Waidla actually used the hatchet throughout, “choosing . . . the more
5
devastating of the instruments,” while Sakarias “accept[ed]” the knife, “the lesser
implement.” With the hatchet, Ipsen argued, Waidla first inflicted the blunt force
injuries, then, “turning the hatchet blade so it was more effective . . . [he] was now
able to chop through the top of her skull.” Ipsen suggested Waidla simply did not
want to acknowledge his role in the attack, “his repeated striking of Viivi Piirisild,
and swinging with the sharp end of the hatchet . . . until she was dead.” He
emphasized the extended and repeated efforts both assailants made to ensure
Viivi’s death, “as Mr. Waidla indicated, himself with the hatchet, Mr. Sakarias
who came up later with the knife.” Waidla’s use of the hatchet blade continued,
Ipsen argued, even after Viivi was dead: “ ‘[S]he’s alive, she’s alive, she’s alive.’
Sharp end, ‘she’s dead,’ and then further blows indicating further blows were
struck after she was dead, the non-hemorrhagic chop wounds to the head.”
Having elicited, in the Waidla trial, the opinion of Dr. James Ribe, the
medical examiner, that the abrasion on Viivi’s lower back was incurred
postmortem, Ipsen emphasized that the initial attack in the living room was fatal:
“At the point that she was dragged into the back room, we know that Viivi Piirisild
was already dead by the facts as the coroner testified. So, we know it was in that
front room that the attack occurred, and that Viivi Piirisild was bludgeoned,
chopped and stabbed until life left her body.” Finally, in penalty argument, Ipsen
urged a death sentence, in part because Waidla, after hitting Viivi repeatedly with
the hatchet’s blunt end, “chose to change the angle of the blade. . . . Although he
felt her head and her flesh against the back of his hatchet numerous times, he knew
his mission wasn’t accomplished, and that’s when he changed and switched and
used the sharp edge of the hatchet to give that death blow.”
In Sakarias’s trial, the prosecutor asked the medical examiner, Dr. Ribe,
about each stabbing, chopping, or blunt force injury shown in the autopsy
photographs, in many instances asking whether the wounds were ante- or
6
postmortem, but he did not examine Dr. Ribe about the lower back abrasion at all.
He thus avoided eliciting Dr. Ribe’s opinion, expressed in Waidla’s earlier trial,
that the abrasion had occurred after death and could have been caused by dragging
Viivi’s body along the carpeted hallway to the bedroom.
Due to this omission, no evidence was before Sakarias’s jury that Viivi
Piirisild was dead by the time Sakarias, as he admitted, struck her with the hatchet
in the bedroom. The prosecutor was thus able to, and did, argue that Sakarias had,
in the bedroom, inflicted all three chopping injuries, including the first,
antemortem one. Thus Ipsen, in his guilt phase argument, told the jury that
Sakarias, in the bedroom, inflicted “three . . . sharp hatchet wounds to the top of
Viivi’s head with a tremendous force. . . . [¶] . . . [¶] We know that there are in
fact three hatchet wounds; the first penetrating the top of the skull, and I know it
was the first because it was a hemorrhagic wound, the one in the hairline, the one
that chopped the top of her head completely off with the exception of some of the
scalp that kept it completely on. [¶] We know that when it’s hemorrhagic it means
that Viivi, whether conscious or not, still suffered that blow while alive, and we
know that the last two in the forehead area being non-hemorrhagic were at a time
when her body had ceased to live, or unfortunately actually possibly that the blood
flow was not great enough to cause hemorrhage. [¶] . . . [¶] Again, Mr. Sakarias
indicates he believes he hit her two times with the hatchet when he used the
hatchet. Again, by the evidence, he was off by only one blow.”
In the penalty phase argument at Sakarias’s trial, the prosecutor again
portrayed Sakarias as having inflicted the antemortem hatchet-blade wound, which
he characterized as finally causing Viivi’s death. Sakarias’s participation in the
crime could not be considered minor, Ipsen argued; he was “as involved in the
murder of Viivi Piirisild as one could ask, swinging what I suggest were the blows
that actually ended her life.” Referring to Sakarias in the second person, Ipsen
7
argued that if, after the attack in the living room, “you had called 911, realizing
what you had done and attempted to save her life, . . . perhaps you would deserve
the pity, the sympathy, perhaps the scales of justice would lean in your direction.
[¶] . . . [¶] If, when you walked back to the back room with that hatchet and
thought Viivi Piirisild is still alive, and you must have, otherwise you wouldn’t
have gone back there with that hatchet, and if you just simply didn’t chop the top
of her head off, as the evidence indicated you did in that back room, thus finally
ending her life.”
In addition to the prosecutorial arguments just recited, petitioners also
complain of inconsistency in the prosecutor’s penalty phase arguments relating to
domination. (See Pen. Code, § 190.3, factor (g) [“substantial domination” by
another may be considered in mitigation].) At Waidla’s trial, Ipsen argued Waidla
“is not one who is dominated by another, but instead the facts indicate that he was
the dominate [sic] person between himself and Mr. Sakarias, that he was the
planner, he was the one who knew of the Piirisild home and knew of the facts
surrounding the burglary, the robbery of Mrs. Piirisild.” At Sakarias’s trial, in
contrast, Ipsen argued Sakarias was “in no way” dominated by Waidla: “They
were separate individuals joined by a common plan, a common hatred, common
goals.” Petitioners’ actions in killing Viivi and escaping were those of “a
partnership like a right hand and a left hand,” with “absolutely no evidence of
domination.”
C. The Habeas Corpus Proceedings
We issued orders to show cause based on petitioners’ allegations that the
inconsistent factual presentations outlined above deprived them of fair trials on the
question of penalty, in violation of the due process guarantee of the Fourteenth
Amendment to the United States Constitution, the Eighth Amendment’s
8
prohibition on cruel and unusual punishment, and article I, section 15 of the
California Constitution. In their returns, the People, represented by the Attorney
General, admitted Ipsen had argued inconsistent theories of the attack on Viivi
Piirisild, but denied he did so intentionally, that he knowingly presented any false
evidence or argument at either trial, that he manipulated the evidence to increase
each petitioner’s culpability, or that any inconsistencies could have affected the
verdicts. The People relied in part on a declaration by Ipsen, executed
November 7, 2001, stating that he did not “knowingly present any false evidence
or argument to either jury” and did not “intentionally” present inconsistent
theories in argument. He did not, in Sakarias’s trial, intentionally omit evidence of
the postmortem abrasion or its significance, and when he argued to Sakarias’s jury
that Sakarias had inflicted the antemortem hatchet blow, Ipsen declared, he “did
not remember that I had argued something different to the Waidla jury.”
Petitioners, by their traverses, placed at issue the truth of the People’s
denials. We therefore appointed a referee to hear evidence and answer the
following factual questions concerning Ipsen’s conduct of the two trials:
1. Was prosecutor Steven Ipsen’s argument of inconsistent factual theories
to the juries in the trials of petitioners Waidla and Sakarias intentional or
inadvertent?
2. (a) Did Ipsen believe, at the time of Sakarias’s trial, that the murder
victim, Viivi Piirisild, was already dead at the time she was dragged from the
living room to the bedroom? (b) Did he have reason to believe Piirisild was dead
when moved to the bedroom?
3. At Sakarias’s trial, did Ipsen deliberately refrain from asking the
medical examiner, Dr. James Ribe, about a postmortem abrasion on the victim’s
back?
9
4. At Waidla’s trial, did Ipsen refrain from seeking admission of Sakarias’s
confession into evidence because it contradicted the factual theory he intended to
argue to the Waidla jury?
The referee heard testimony from Ipsen and from the former head of
Ipsen’s branch of the district attorney’s office. In addition, the referee admitted
and reviewed numerous exhibits, including crime scene and autopsy photographs
from the two trials, and took notice of the reporters’ transcripts of the trials. The
referee summarized his findings on the submitted questions as follows:
“1. Ipsen’s argument of inconsistent factual theories to the juries in the
trials of Waidla and Sakarias was an intentional strategic decision designed to fit
the evidence Ipsen presented at the successive trials, to meet the proffered defense
theories, and to maximize the portrayal of each defendant’s culpability.
“2. (a) At the time of the Sakarias trial, Ipsen did not believe that Piirisild
was already dead when she was dragged from the living room to the bedroom.
(b) At the time of the Sakarias trial, Ipsen had strong reason to believe that
Piirisild was dead when she was dragged from the living room to the bedroom.
Although Ipsen also had some lesser reason to believe she may have been alive,
the great weight of the evidence did not support that view. Further, as explained
below in Issue No. 3, Ipsen intentionally did not elicit testimony from Dr. Ribe
about the postmortem abrasion on Piirisild’s back, because the most likely
interpretation of the abrasion was inconsistent with the theory of the killing Ipsen
presented at Sakarias’ trial.
“3. Ipsen deliberately refrained from asking Dr. Ribe about the postmortem
abrasion on Piirisild’s back. He did so to tailor his evidentiary presentation to his
changed theory of the hatchet wounds. The most likely explanation of that
abrasion would have been inconsistent with the factual theory of the killing he
presented in Sakarias’ trial.
10
“4. Ipsen believed that Sakarias’ confession was inadmissible at Waidla’s
trial. For that reason, and not because it contradicted the factual theory he
intended to argue to the Waidla jury, he did not offer it against Waidla.”
The parties (and the Los Angeles County District Attorney’s Office, as
amicus curiae) have filed postreference briefs on the merits. They take no
exception to the referee’s findings, but dispute the legal consequences of those
findings.
II. DISCUSSION
A. Review of Referee’s Findings
“The referee’s findings are not binding on us, but are entitled to great
weight when supported by substantial evidence. (In re Ross (1995) 10 Cal.4th
184, 201 [40 Cal.Rptr.2d 544, 892 P.2d 1287]; In re Marquez (1992) 1 Cal.4th
584, 603 [3 Cal.Rptr.2d 727, 822 P.2d 435].) Deference to the referee is called for
on factual questions, especially those 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 Ross, supra, 10
Cal.4th at p. 201; In re Jackson (1992) 3 Cal.4th 578, 585 [11 Cal.Rptr.2d 531,
835 P.2d 371].)” (In re Malone (1996) 12 Cal.4th 935, 946.) Upon review, we
find each of the referee’s findings supported by substantial evidence and, like the
parties, we accept them.
1. Ipsen’s use of divergent factual theories was intentional
Ipsen testified at the reference hearing, as he stated in his earlier
declaration, that his presentation of inconsistent theories was “not intentional.” He
noted that in the interval between the trials he probably handled other cases and
described himself as an “instinct[ive]” litigator who did not typically follow
detailed notes or a script in his examination of witnesses. When he made his
11
closing argument in the Sakarias case, he did not have in mind what he had argued
to the Waidla jury: “the last thing I’m thinking about when I’m arguing in one
trial is trying to remember what I argued in another trial.”
The referee found Ipsen’s claim of inadvertence “unconvincing”: “Despite
a lapse of eight months between trials, it is unlikely that a competent and
committed prosecutor like Ipsen, handling the severed trials of two defendants
jointly charged with capital murder, would simply forget at the second trial what
specific factual theory of the gruesome murder he presented at the first. . . . [T]he
Waidla and Sakarias trials were Ipsen’s first murder cases, his first death penalty
cases. He was depressed about the death verdict in Waidla for approximately two
weeks.[1] It is improbable that his factual depiction of the killing in Waidla would
have totally escaped his notice in Sakarias. Moreover, the assertion of
inadvertence in presenting the inconsistent theories implies a level of carelessness
that is simply not present in Ipsen’s prosecution of Sakarias.”
Substantial evidence supports the referee’s conclusion. Ipsen testified at
the hearing that he “always,” including at the time of Waidla’s trial, “had a belief
that Mr. Sakarias inflicted hatchet wounds in the back room.” Ipsen also testified
he probably had the Sakarias statement, which contained that admission, before
Waidla’s trial. In addition, Waidla’s statement to police, admitted at his trial,
indicated that Sakarias had taken the hatchet into the bedroom after they dragged
Viivi Piirisild there. Yet, in argument to the Waidla jury, Ipsen not only did not
suggest Sakarias had ever used the hatchet, instead impliedly attributing all such
blows to Waidla, but expressly argued Waidla had struck Viivi repeatedly with the
1
Ipsen testified he was depressed “that this whole thing had to happen . . .
[t]he destruction of the families and everything.”
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blade, inflicting not only the hemorrhagic “death blow” but also the additional
“non-hemorrhagic chop wounds to the head.” As Ipsen, according to his
testimony, believed at the time that Sakarias had struck some of the hatchet blows,
and as Waidla’s statement, which was in evidence, would have supported such an
argument (or at least an argument that Sakarias might have struck Viivi with the
hatchet in the bedroom), “the inference,” as the referee found, “is clear: Ipsen set
aside that belief, and argued that Waidla inflicted all the hatchet wounds, thus
enhancing the theory of Waidla’s culpability.”
At Sakarias’s trial, of course, the prosecutor introduced, and relied upon,
Sakarias’s confession, which included his account of taking the hatchet into the
bedroom and striking Viivi twice with it. But Ipsen also attributed to Sakarias the
hemorrhagic, antemortem chopping wound, despite having proven and argued in
Waidla’s trial, some months earlier, that Viivi was already dead when moved to
the bedroom. As the referee found, on substantial evidence, Ipsen intentionally
refrained from putting the same evidence before the Sakarias jury. The inference
is therefore strong that his argument to the Sakarias jury, that Sakarias had
inflicted the hemorrhagic chopping wound, was also intentional.
2. Ipsen had strong reason to believe, while prosecuting Sakarias, that
the victim was already dead when moved to the bedroom
Although there were slight grounds for doubt, the referee found, “the great
weight of the available evidence” supported the view that Viivi Piirisild died in the
living room. The postmortem abrasion, in particular, was best explained as the
result of Viivi’s body being dragged across the carpet to the bedroom. While the
abrasion could conceivably have had other causes, “[t]he dragging explained the
size, nature, and location of the abrasion” and was also consistent with the
condition of Viivi’s clothing.
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The finding that Ipsen had strong reason to believe Viivi was already dead
when moved to the bedroom is supported by substantial evidence. The police
detective testified in Sakarias’s trial that among the bloodstains on the living room
carpet was a large concentration of blood “consistent with a body lying in that
position bleeding for . . . an extended period of time . . . ,” possibly as long as 10
or 15 minutes. In contrast, the detective described no bloodstains on the floor of
the bedroom and no large-volume stains at all; rather, the blood in the bedroom,
spattered on walls and the ceiling, was in one area “minimal” in volume and in
another had “enough substance to actually start to trickle down the wall” but
“wasn’t a great amount of blood.” By far the most persuasive explanation for the
abrasion on Viivi’s lower back, as the referee stated, was that it was caused by
dragging her body to the bedroom. Since the medical examiner, as far as Ipsen
knew, had not changed his opinion that the abrasion was incurred after death,
Ipsen had no objective grounds on which to abandon his theory, which fit with all
this evidence, that petitioners’ initial attack on Viivi Piirisild, in her living room,
was fatal.
3. Ipsen deliberately refrained from asking Dr. Ribe about the
postmortem abrasion in Sakarias’s trial
The referee, observing that in Sakarias’s trial Ipsen had introduced virtually
all the same autopsy photographs as in Waidla’s trial but had omitted exhibit 59K,
which showed the abrasion on Viivi Piirisild’s back, concluded Ipsen’s omissions
of this exhibit and of questioning regarding the abrasion were deliberate, designed
to avoid the presentation of evidence “inconvenient” to his new and different
theory of the attack, evidence “much easier to omit than to explain.”
We conclude this finding is supported by substantial evidence. Though
Ipsen testified he had “no memory of deciding not to introduce that [exhibit],” he
agreed it was “odd” that “the one photograph is not in.” To be sure, Ipsen’s
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examination of Dr. Ribe in Sakarias’s trial was not as long as in Waidla’s; Ipsen
testified he was less concerned with the medical and physical evidence in
Sakarias’s trial, where Sakarias had confessed to the attack and raised a
psychiatric defense, than in Waidla’s. But even in Sakarias’s trial, the
examination of Dr. Ribe was methodical, covering each of Viivi Piirisild’s major
injuries and including questions as to the hemorrhagic or nonhemorrhagic
character of most. In an earlier examination of the police detective, moreover,
Ipsen had already presented evidence that the abrasion on Viivi’s body and the
condition of the carpeting corroborated Sakarias’s statement that petitioners had
dragged her body to the bedroom. As the referee reasoned, “It is highly
improbable that Ipsen recognized the significance of the abrasion as evidence that
the body was dragged, but forgot the significance of the abrasion as evidence that
Piirisild died in the living room before being dragged to the bedroom.” In light of
this circumstantial evidence, and given Ipsen’s lack of specific memory as to how
he came to omit examination on the postmortem character of the abrasion, the
referee could reasonably conclude the omission was deliberate.
4. Ipsen did not offer Sakarias’s confession at Waidla’s trial because
he believed it would be inadmissible
Ipsen testified he would have liked to introduce Sakarias’s confession,
which implicated Waidla equally, in Waidla’s trial, but assumed it would be
subject to a successful objection. “My understanding of the law at the time and
still today, is that when I’m prosecuting Mr. Waidla and charging him with
murder, I can’t use the statement of his accomplice against him.” At trial before a
judge he knew to be highly experienced in criminal law, “If I had tried to get in
evidence, which everyone knows is inadmissible and is wrong, I’d look like an
idiot to say I’d like to offer the codefendant’s statement.”
15
The referee accepted Ipsen’s testimony on this point, stating the confession
would have been inadmissible under People v. Aranda (1965) 63 Cal.2d 518 and
Bruton v. United States (1968) 391 U.S. 123. The prosecutor’s failure to offer the
statement, the referee found, “did not relate to its inconsistency with the factual
theory he intended to present at Waidla’s trial.”
Ipsen’s testimony constitutes substantial evidence supporting the referee’s
finding. Though the Aranda/Bruton rule of exclusion applies only to statements of
jointly tried codefendants (People v. Brown (2003) 31 Cal.4th 518, 537), Ipsen
could have reasonably assumed that most or all of Sakarias’s confession would be
inadmissible in Waidla’s trial. Under California’s hearsay exception for
declarations against penal interest (Evid. Code, § 1230), admissibility is limited to
the “ ‘specifically disserving’ ” portions of the statement. (People v. Duarte
(2000) 24 Cal.4th 603, 612; People v. Leach (1975) 15 Cal.3d 419, 441.) Thus,
Sakarias’s statements that Waidla had initiated the attack on Viivi Piirisild, struck
Viivi with the hatchet as she pleaded for him to stop, called for Sakarias to assist,
and later directed him to strike Viivi with the hatchet in the bedroom (see
Sakarias, supra, 22 Cal.4th at p. 613) could well have been held inadmissible as
attempts to deflect culpability away from the declarant. (See People v. Duarte,
supra, at pp. 612-613; see also id. at p. 626 (conc. opn. of Baxter, J.) [6th Amend.
confrontation clause “may most often prohibit the use against an accused of
directly incriminating statements against him that were made by a nontestifying
accomplice while in police custody”].)2 Redaction of the confession to excise
2
Recently, admission in criminal cases of “testimonial” statements by
declarants not subject to cross-examination has been held generally violative of
the confrontation clause (Crawford v. Washington (2004) 513 U.S. 36 [124 S.Ct.
1354, 1364-1365]), but that broad rule had not yet been recognized in 1990 when
Waidla was tried.
16
those portions would not necessarily have endowed the statement as a whole,
made as it was under custodial questioning regarding Sakarias’s role in the
homicide, with the indicia of reliability required under Evidence Code section
1230. (See People v. Duarte, supra, at pp. 614-618.) Finally, while the
prosecutor might have overcome hearsay and confrontation clause objections to
portions of the Sakarias statement solely implicating Sakarias, those portions
would have been irrelevant in Waidla’s trial. With this background law, Ipsen’s
testimony that he assumed the Sakarias statement would be inadmissible is
believable and constituted substantial evidence to support the referee’s findings.
Like the parties, we therefore accept each of the referee’s findings as
supported by substantial evidence.
B. The People’s Bad Faith Use of Inconsistent Theories Deprived
Sakarias of Due Process, Requiring Vacation of His Death Sentence
Petitioners both claim Ipsen’s inconsistent attribution of the three hatchet-
blade blows deprived them of due process. The Attorney General contends the use
of inconsistent arguments at separate trials “is permissible provided a prosecutor
does not argue something that the prosecutor knows to be false.” For reasons
explained below, we conclude that fundamental fairness does not permit the
People, without a good faith justification, to attribute to two defendants, in
separate trials, a criminal act only one defendant could have committed. By doing
so, the state necessarily urges conviction or an increase in culpability in one of the
cases on a false factual basis, a result inconsistent with the goal of the criminal
trial as a search for truth. At least where, as in Sakarias’s case, the change in
theories between the two trials is achieved partly through deliberate manipulation
of the evidence put before the jury, the use of such inconsistent and irreconcilable
theories impermissibly undermines the reliability of the convictions or sentences
thereby obtained. In short, in the absence of a good faith justification, “[c]ausing
17
two defendants to be sentenced to death by presenting inconsistent arguments in
separate proceedings . . . undermines the fairness of the judicial process and may
precipitate inappropriate results.” (Poulin, Prosecutorial Inconsistency, Estoppel,
and Due Process: Making the Prosecution Get Its Story Straight (2001) 89 Cal.
L.Rev. 1423, 1425 (hereafter Prosecutorial Inconsistency).)
We also conclude, however, that where, as here, the available evidence
points clearly to the truth of one theory and the falsity of the other, only the
defendant against whom the false theory was used can show constitutionally
significant prejudice. For that reason, we conclude that Sakarias, but not Waidla,
is entitled to relief on his petition.
1. The People may not convict two individuals of a crime only one
could have committed or obtain harsher sentences against two
individuals by unjustifiably attributing to each a culpable act only
one could have committed
Judicial disapproval of the state’s use of inconsistent and irreconcilable
theories in separate trials for the same crimes was first articulated in opinions by
individual Supreme Court and lower federal court judges. (See Jacobs v. Scott
(1995) 513 U.S. 1067 (dis. opn. of Stevens, J., from denial of stay) [fundamentally
unfair to execute a person “on the basis of a factual determination that the State
has formally disavowed” in coperpetrator’s later trial]; Drake v. Kemp (11th Cir.
1985) 762 F.2d 1449, 1479 (conc. opn. of Clark, J.) [prosecutor’s “flip flopping of
theories of the offense was inherently unfair”].) Drawing on these separate
opinions, several federal courts have since held that a prosecutor’s inconsistent
argument in two defendants’ separate trials attributing the same criminal or
culpability-increasing act to each defendant denies the defendants fundamentally
fair trials.
In Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045 (Thompson),
reversed on other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538, a
18
majority of the en banc court held that inconsistent prosecutorial theories may
present a due process violation. There, Leitch and Thompson were both charged
with raping and killing Ginger Fleischli. At their joint preliminary hearing and at
Leitch’s trial, the prosecutor introduced and relied on evidence, including
testimony by jailhouse informants recounting statements by Thompson, that
indicated the two defendants had acted together, killing Fleischli because she was
interfering with Leitch’s efforts to reconcile with his ex-wife. (Thompson, supra,
at pp. 1055-1056 (plur. opn. of Fletcher, J.).) At Thompson’s trial (held before
Leitch’s), however, the same prosecutor had introduced and relied upon other
evidence, to the effect that Thompson alone killed Fleischli to prevent her
reporting that he had raped her. (Id. at p. 1056.) The prosecutor thus “asserted as
the truth before Thompson’s jury the story he subsequently labeled absurd and
incredible in Leitch’s trial.” (Id. at p. 1057.)
The Thompson plurality concluded that “when no new significant evidence
comes to light a prosecutor cannot, in order to convict two defendants at separate
trials, offer inconsistent theories and facts regarding the same crime.” (Thompson,
supra, 120 F.3d at p. 1058.) Three of the 11 judges participating fully joined with
Judge Fletcher in her opinion on this point. (Id. at p. 1047.) Two more, in a
concurring opinion by Judge Tashima, agreed that prosecutorial use of wholly
inconsistent theories violates due process (id. at p. 1063), but believed that
Thompson’s entitlement to relief depended on whether he was prejudiced, which
in turn required a determination “which of the two inconsistent theories pursued
by the prosecutor represents the true facts and which is false” (id. at p. 1064).
In Smith v. Groose (8th Cir. 2000) 205 F.3d 1045 (Smith), members of two
criminal groups who had separately burglarized the same house during
overlapping periods of the same day were tried separately for the murder of the
occupants. At the trials of both Cunningham, a member of the first group of
19
burglars, and Smith, a member of the second, Lytle, also a member of the second
group, testified the occupants were killed by Cunningham’s group. In one prior
statement to police, Lytle had attributed the killings to a member of his own group,
Bowman, while in another he said, consistently with his trial testimony, that
Cunningham’s group had killed the occupants. At Smith’s trial, the prosecutor
used Lytle’s prior statement implicating Bowman in the killings, arguing to the
jury that Smith, Bowman’s accomplice in burglary, was guilty of felony murder.
Later, at Cunningham’s trial, the prosecutor relied on Lytle’s testimony,
introduced his prior consistent statement to police, did not introduce his prior
inconsistent statement, and objected to defense efforts to impeach him. (Id. at pp.
1047-1048, 1050.) “In short, what the State claimed to be true in Smith’s case it
rejected in Cunningham’s case, and vice versa.” (Id. at p. 1050.)
The Smith court concluded, “the use of inherently contradictory theories
violates the principles of due process” (Smith, supra, 205 F.3d at p. 1052), for
“[t]he State’s duty to its citizens does not allow it to pursue as many convictions as
possible without regard to fairness and the search for truth” (id. at p. 1051; see
also United States v. Butner (W.D.Mo. 2000) 2000 WL 1842410, *15-17
[following Smith]).
Recently, the Sixth Circuit Court of Appeals reached the same conclusion
in Stumpf v. Mitchell (6th Cir. 2004) 367 F.3d 594, cert. granted sub nom. Mitchell
v. Stumpf (Jan. 7, 2005 No. 04-637) ___ U.S. ___ [125 S.Ct. 824] (Stumpf).
Stumpf and his accomplice, Wesley, robbed and killed a couple, the Stouts, in
their home. That Stumpf shot Mr. Stout was undisputed, but whether he also shot
Mrs. Stout or Wesley did so with Stumpf’s handgun was unclear. At Stumpf’s
plea hearing, the prosecutor argued that since both victims were shot with the
same weapon, the evidence showed Stumpf must have killed both victims “ ‘in
order not to leave anyone available to identify him.’ ” (Id. at p. 613.) But at
20
Wesley’s later trial, the prosecutor introduced a jail informant’s testimony that
Wesley had confessed to picking up Stumpf’s handgun and shooting Mrs. Stout.
On that basis, the prosecutor argued Stumpf had left the room after shooting Mr.
Stout, whereupon Wesley, “ ‘whose own gun was jammed, picked that chrome
colored Raven up and as Mrs. Stout sat helplessly on her bed, shot her four times
in order to leave no witnesses to the crime.’ ” (Ibid.; id. at pp. 596-598.)
The appellate court concluded, “the use of inconsistent, irreconcilable
theories to convict two defendants for the same crime is a due process violation.”
(Stumpf, supra, 367 F.3d at p. 611.) The vice rests in the fact that of two
inconsistent and irreconcilable theories, one must be false: “Because inconsistent
theories render convictions unreliable, they constitute a violation of the due
process rights of any defendant in whose trial they are used.” (Id. at p. 613.) In
Stumpf, the state had clearly used such irreconcilable theories, for “[a]t each
proceeding, the prosecutor argued that the defendant had been the one to pull the
trigger, resulting in the fatal shots to [Mrs.] Stout.” (Ibid.)
These courts and judges have found a prosecutor’s 180-degree change in
theory “deeply troubling” (Jacobs v. Scott, supra, 513 U.S. at p. 1069), in part
because by taking a formal position inconsistent with the guilt or culpability of at
least one convicted defendant, the government, through the prosecutor, has cast
doubt on the factual basis for the conviction. “If the prosecutor’s statements at the
Hogan trial were correct, then Jacobs is innocent of capital murder.” (Ibid.) “The
conclusion seems inescapable that the prosecutor obtained Henry Drake’s
conviction through the use of testimony he did not believe . . . .” (Drake v. Kemp,
supra, 762 F.2d at p. 1479.) “The prosecutor . . . at Leitch’s trial essentially
ridiculed the theory he had used to obtain a conviction and death sentence at
Thompson’s trial.” (Thompson, supra, 120 F.3d at p. 1057.) As both of two
21
irreconcilable theories of guilt cannot be true, “inconsistent theories render
convictions unreliable.” (Stumpf, supra, 367 F.3d at p. 613.)
Because it undermines the reliability of the convictions or sentences, the
prosecution’s use of inconsistent and irreconcilable theories has also been
criticized as inconsistent with the principles of public prosecution and the integrity
of the criminal trial system. A criminal prosecutor’s function “is not merely to
prosecute crimes, but also to make certain that the truth is honored to the fullest
extent possible during the course of the criminal prosecution and trial.” (United
States v. Kattar (1st Cir. 1988) 840 F.2d 118, 127.) His or her goal must be “not
simply to obtain a conviction, but to obtain a fair conviction.” (Brown v. Borg
(9th Cir. 1991) 951 F.2d 1011, 1015.) “Although the prosecutor must prosecute
with earnestness and vigor and ‘may strike hard blows, he is not at liberty to strike
foul ones.’ ” (Smith, supra, 205 F.3d at p. 1049, quoting Berger v. United States
(1935) 295 U.S. 78, 88; see also ABA Model Code Prof. Responsibility, EC 7-13
[“The responsibility of a public prosecutor differs from that of the usual advocate;
his duty is to seek justice, not merely to convict”].)
For the government’s representative, in the grave matter of a criminal trial,
to “chang[e] his theory of what happened to suit the state” is unseemly at best.
(Drake v. Kemp, supra, 762 F.2d at p. 1479.) “The state cannot divide and
conquer in this manner. Such actions reduce criminal trials to mere
gamesmanship and rob them of their supposed purpose of a search for truth.”
(Ibid.) Thus, even a court that did not believe inconsistent positions, by
themselves, to be constitutional error found it “disturbing to see the Justice
Department change the color of its stripes to such a significant degree . . .
depending on the strategic necessities of the separate litigations.” (United States v.
Kattar, supra, 840 F.2d at p. 127; see also Thompson, supra, 120 F.3d at p. 1072
22
(dis. opn. of Kozinski, J.) [prosecutor’s use of inconsistent factual theories “surely
does not inspire public confidence in our criminal justice system”].)
We have previously indicated that an inconsistent prosecutorial argument
“made in bad faith” could be misconduct, and conversely that such argument was
not improper if “based on the record and made in good faith” (People v. Farmer
(1989) 47 Cal.3d 888, 923 (Farmer)), though we did not have occasion in that
case to deal more definitively with the problem. With the issue more squarely
before us here, we hold that the People’s use of irreconcilable theories of guilt or
culpability, unjustified by a good faith justification for the inconsistency, is
fundamentally unfair, for it necessarily creates the potential for—and, where
prejudicial, actually achieves—a false conviction or increased punishment on a
false factual basis for one of the accuseds. “The criminal trial should be viewed
not as an adversarial sporting contest, but as a quest for truth.” (United States v.
Kattar, supra, 840 F.2d at p. 127.)
By intentionally and in bad faith seeking a conviction or death sentence for
two defendants on the basis of culpable acts for which only one could be
responsible, the People violate “the due process requirement that the government
prosecute fairly in a search for truth.” (Smith, supra, 205 F.3d at p. 1053.) In such
circumstances, the People’s conduct gives rise to a due process claim (under both
the United States and California Constitutions) similar to a claim of factual
innocence. Just as it would be impermissible for the state to punish a person
factually innocent of the charged crime, so too does it violate due process to base
criminal punishment on unjustified attribution of the same criminal or culpability-
increasing acts to two different persons when only one could have committed
them. In that situation, we know that someone is factually innocent of the culpable
acts attributed to both. (See Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at
p. 425 [“When the prosecution advances a position in the trial of one defendant
23
and then adopts an inconsistent position in the trial of another on the same facts,
the prosecution is relying on a known falsity”].)
2. The People unjustifiably used inconsistent and irreconcilable
theories to obtain a death sentence against Sakarias
Prosecutor Ipsen attributed first to Waidla alone and later to Sakarias alone,
in their respective trials, a series of blows to the victim’s head with the hatchet
blade. These two theories are irreconcilable; that Waidla alone inflicted each of
these wounds, as the prosecutor maintained at his trial, and that Sakarias alone
also did so, as the prosecutor maintained at his trial, is not possible. One or the
other theory (or both, if each man inflicted some but not all of the wounds) must
be false.
The acts attributed to both Waidla and Sakarias in turn were not necessary
to establish their guilt of first degree murder (Pen. Code, § 189) or the truth of the
charged robbery- and burglary-murder special circumstances (id., § 190.2, subd.
(a)(17)). But the prosecutor attributed the three hatchet-edge blows to each
defendant in turn in order to establish an aggravating circumstance of the crime
(id., § 190.3) on the basis of which the jury was urged to sentence each defendant
to death. At least where the punishment involved is death, due process is as
offended by the People’s inconsistent and irreconcilable attribution of culpability-
increasing acts as by the inconsistent and irreconcilable attribution of crimes. (See
Jacobs v. Scott, supra, 513 U.S. at p. 1070 [heightened need for reliability in
capital cases “underscores the gravity” of prosecutorial inconsistency];
Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at pp. 1468-1470 [consistency
as to both defendants’ guilt of crime does not justify inconsistency as to
culpability, where pertinent to capital sentence].) We cannot accept the dissent’s
apparent view (see conc. & dis. opn. of Baxter, J., post, at p. 12) that the state may
seek and obtain death sentences for two defendants using inconsistent or
24
irreconcilable factual theories that it could not use to obtain convictions against the
same two.
Because Ipsen used different attributions of the chopping wounds to argue
each petitioner should receive the death penalty, his factual theories were
significantly inconsistent and irreconcilable. The present case is thus critically
distinguishable from those in which the prosecutor’s theories were held
fundamentally consistent because any variation did not concern a fact used to
convict the defendant or increase his or her punishment. (See Nguyen v. Lindsey
(9th Cir. 2000) 232 F.3d 1236, 1240-1241 [variation in prosecutorial argument as
to which of two gangs fired the first shot in a gun battle that killed a bystander not
significant where prosecutor at both trials pursued the same “underlying theory”
that all participants in the gang battle were equally responsible for the death].)3
Unlike those cases, here Ipsen’s underlying theory of why petitioners each
deserved the death penalty was not the same in the two cases; in Waidla’s case, it
included Waidla’s supposed striking of all three blows with the hatchet blade,
while in Sakarias’s case it included Sakarias’s striking the same three blows.4
3
See also, e.g., People v. Turner (1994) 8 Cal.4th 137, 194 (claim of
prosecutorial misconduct by making inconsistent statements regarding whether an
accomplice shared Turner’s intent to kill rejected, in part, on ground that
prosecutor’s theory in both cases was that Turner was actual killer); Haynes v.
Cupp (9th Cir. 1987) 827 F.2d 435, 439 (“variations in emphasis” not cause for
reversal where “underlying theory of the case” is consistent); Nichols v. Scott (5th
Cir. 1995) 69 F.3d 1255, 1271, fn. 32 (verdicts and judgments in two cases where
prosecutor made varying arguments as to who fired fatal shot “are not
inconsistent” and did not entitle Nichols to relief from capital murder conviction
because neither the guilt nor the punishment verdict depended on that fact).
4
On the other hand, we can find no due process or Eighth Amendment
violation in Ipsen’s allegedly inconsistent arguments regarding domination.
Though Ipsen’s emphasis in each trial was different, his basic factual position,
which was largely based on the same evidence in the two cases, was consistent:
(footnote continued on next page)
25
We turn to the question of justification. As observed earlier, in Farmer,
supra, 47 Cal.3d at page 923, we suggested inconsistent prosecutorial argument
was not improper if made in “good faith.” We did not, however, explicate in
Farmer the concepts of good and bad faith in the context of prosecutorial
inconsistency.
The Thompson plurality suggested a prosecutor’s change in theories could
be justified where “new significant evidence comes to light” between the trials.
(Thompson, supra, 120 F.3d at p. 1058.) We agree a significant change in the
available evidence might, under some circumstances, warrant the use of an
inconsistent prosecutorial theory in a subsequent trial.5 Here, one difference in
evidence between the two trials was the introduction at Waidla’s trial, but not at
(footnote continued from previous page)
neither defendant could claim mitigation because of his “substantial domination”
(Pen. Code, § 190.3, factor (g)) by the other. (See State v. Lavalais (La. 1996) 685
So.2d 1048, 1056-1057 [no due process violation where prosecutor argued in
successive trials that Lavalais was and was not under the domination and control
of coperpetrator: the fundamental facts the prosecutor presented did not vary, and
the appearance of inconsistency merely reflected the fact that “the state’s emphasis
as to culpability was different in the two trials”].) Semantically, Ipsen’s argument
in Waidla’s trial that Waidla was “the dominate [sic] person between himself and
Mr. Sakarias” may have been inconsistent with his argument in Sakarias’s trial
that there was “no evidence of domination.” Conceptually, however, it was not
contradictory for Ipsen to point out in Waidla’s case that he had the greater
motivation (because the Piirisilds assertedly owed him money or a car) and greater
knowledge of the house (and thus might have taken a lead role in planning the
burglary), while observing in Sakarias’s case that the evidence showed Sakarias
had taken his friend’s grievance as his own and participated cooperatively in the
crimes.
5
In discussing this type of justification, we do not mean to imply no others
are theoretically possible. But unlike the dissent (conc. & dis. opn. of Baxter, J.,
post, at p. 3) we do not believe the lack of settled law on the subject of
inconsistent factual theories establishes a prosecutor’s good faith in using such
theories.
26
Sakarias’s, of Dr. Ribe’s testimony that the abrasion on the victim’s back was
nonhemorrhagic and therefore appeared to have been inflicted after death. But
Ipsen’s deliberate strategic choice in Sakarias’s trial not to examine Dr. Ribe
regarding the abrasion on the victim’s lower back, as he had done a few months
earlier at Waidla’s trial, plainly cannot establish Ipsen’s good faith or otherwise
justify the use of irreconcilable theories. To the contrary, such manipulation of the
evidence for the purpose of pursuing inconsistent theories establishes the
prosecutor’s bad faith. Indeed, as a commentator has remarked, cases in which a
prosecutor’s use of inconsistent theories in successive trials reflects a deliberate
change in the evidence presented are particularly clear violations: “In extreme
cases, the prosecutorial inconsistency signals intentional manipulation by the
prosecution and is readily characterized as a violation of due process.”
(Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at p. 1474; see, e.g., Smith,
supra, 205 F.3d at p. 1051 [prosecution’s “manipulation of the evidence” enabled
it to use factually contradictory theories].) Ipsen’s deliberate omission of evidence
for the purpose of making possible his use of inconsistent and irreconcilable
theories makes Sakarias’s trial such an “extreme case[].” (Prosecutorial
Inconsistency, supra, 89 Cal. L.Rev. at p. 1474; cf. ABA Model Code Prof.
Responsibility, EC 7-13 [“Further, a prosecutor should not intentionally avoid
pursuit of evidence merely because he believes it will damage the prosecution’s
case or aid the accused”].)6
6
The prosecutorial manipulation of evidence here also makes Sakarias’s due
process claim significantly stronger than that of the petitioner in Stumpf, supra,
367 F.3d 594. Evidence the Stumpf prosecution later presented in the trial of
Stumpf’s accomplice, Wesley—a jail informant’s testimony that Wesley had
confessed to the fatal shooting—“was not available” at the time of Stumpf’s plea
hearing because at that time Wesley “was still in Texas, fighting extradition” to
(footnote continued on next page)
27
The referee found, on substantial evidence, that Ipsen omitted questioning
about the back abrasion in order to avoid presenting evidence “inconvenient” to
his new theory that Sakarias had inflicted all three chopping wounds to the
victim’s head. Such intentional manipulation of the evidence was instrumental to,
and cannot justify, the prosecutor’s use of irreconcilable theories. The
inconsistent argument in Sakarias’s trial was not made with the “good faith” to
which we alluded in Farmer, supra, 47 Cal.3d at page 923.
The dissenting opinion finds no indication of bad faith in Ipsen’s conduct
because, where the information available to the prosecutor is of public record or
has been disclosed to the defense, “the People would not generally be required to
introduce, in their own case, evidence helpful to the defense.” (Conc. & dis. opn.
of Baxter, J., post, at p. 2.) We agree no due process violation arises simply from
a prosecutor’s failure to introduce evidence favorable to the defense. But where,
as here, a prosecutor who seeks convictions or death sentences against two
individuals through inconsistent and irreconcilable factual theories deliberately
omits in one trial evidence used in the other, so as to make possible the argument
of the inconsistent theories, the prosecutor’s manipulation of evidence does show
that the inconsistent theories were not pursued in good faith. The People,
therefore, deprived Sakarias of due process by unjustifiably using inconsistent and
(footnote continued from previous page)
Ohio. (Id. at pp. 610, 613.) As the dissenting judge in Stumpf explained: “It is
undisputed that the prosecution did not know of [the informant’s] statement at the
time of Stumpf’s conviction and sentencing. Nothing indicates that the
prosecution cherry-picked facts in order to confirm Stumpf’s guilty plea in the
evidentiary hearing.” (Id. at p. 620 (dis. opn. of Boggs, C. J.).) Unlike Ipsen’s
conduct in Sakarias’s trial, therefore, Stumpf’s prosecutor “did not manipulate
evidence.” (Id. at p. 621.)
28
irreconcilable factual theories to obtain a death sentence against him. Whether
that conduct was prejudicial must still be determined. (See part II.B.3., post.)7
Whether the prosecutor can be said to have manipulated the evidence at
Waidla’s trial is less clear. Sakarias’s confession was not introduced at Waidla’s
trial because Ipsen assumed it would be ruled inadmissible—a realistic
assumption. At oral argument, counsel for Waidla asserted that Ipsen had
deliberately failed to introduce at Waidla’s trial crime scene evidence, which he
did introduce at Sakarias’s later trial, regarding blood spatters in the bedroom. But
this evidence did not, in light of the other physical evidence, strongly suggest the
victim was killed in the bedroom, and the record does not establish whether Ipsen
omitted it at Waidla’s trial in order to avoid such an implication. We need not
decide whether the prosecutor acted in bad faith at Waidla’s trial, however,
because, as we conclude below, the probably false aspects of the argument Ipsen
made in seeking the death penalty against Waidla were not reasonably likely to
have influenced the verdict. (See part II.B.4., post.)
3. The People’s use of inconsistent and irreconcilable theories was
prejudicial as to Sakarias
The prejudice question is in these circumstances a complex one, involving
two questions as to each petitioner and each culpability-increasing act
inconsistently attributed to petitioners: for each petitioner we must ask, first,
whether the People’s attribution of the act to the petitioner is, according to all the
7
Because Ipsen’s bad faith in Sakarias’s trial is clearly demonstrated by his
deliberate manipulation of the evidence, we need not decide whether the burden of
showing good or bad faith lies with the People or the petitioner. Nor need we
address what obligation, if any, the People may have to correct inconsistent
judgments obtained through inconsistent arguments made by the prosecutor in
good faith.
29
available evidence, probably false or probably true, and, second, whether any
probably false attribution of a culpability-increasing act to the petitioner could
reasonably have affected the penalty verdict.
As previously explained, the prosecutor’s unjustified use of inconsistent
and irreconcilable factual theories to convict two people of a crime only one could
have committed, or to obtain harsher sentences for both on the basis of an act only
one could have committed, violates due process because in those circumstances
the state has necessarily convicted or sentenced a person on a false factual basis.
It follows that where the probable truth of the situation can be determined—where
we are able to say which of the prosecution theories was likely true and which
false—only the defendant prejudiced by the false attribution is entitled to relief.
(See Thompson, supra, 120 F.3d at p. 1064 (conc. opn. of Tashima, J.) [“To reach
a conclusion of prejudice or no prejudice as to Thompson first requires a finding
of which of the two inconsistent theories pursued by the prosecutor represents the
true facts and which is false”]; Prosecutorial Inconsistency, supra, 89 Cal. L.Rev.
at p. 1478 [in assessing entitlement to relief for inconsistent prosecutorial theories,
“courts should ask whether the correct position on the evidence can be determined
from the evidence available. If the correct position is ascertainable, the court
should rule accordingly”].) Only as to the defendant convicted or sentenced by
use of the probably false theory can it be said the prosecution has presented a
materially false picture of the defendant’s culpability.
We need not decide here what result obtains when the likely truth of the
prosecutor’s inconsistent theories cannot be determined, for the case at bench is
not one of ambiguous or inconclusive evidence.8 As the referee found, the great
8
Where the evidence is highly ambiguous as to each accused perpetrator’s
role, some courts have relied on “the uncertainty of the evidence” to justify the
(footnote continued on next page)
30
weight of available evidence indicates that Viivi Piirisild was dead or near death
when dragged into the bedroom and thus that Waidla, rather than Sakarias, struck
the antemortem, hemorrhagic hatchet-blade blow. True, some evidence—blood
spatters in the bedroom—suggests the possibility of an antemortem blow being
struck in that room. But that evidence is overwhelmed by other evidence that
Viivi’s hemorrhagic wounds, including the hemorrhagic chopping wound Ipsen
characterized as the “death blow,” were inflicted during petitioners’ initial attack
on her in the living room, including the large pool of blood in the living room, the
minimum quantity of blood on the bedroom walls and ceiling, the lack of blood on
the bedroom floor, Sakarias’s statement that petitioners felled Viivi in the living
room before eventually dragging her into the bedroom, and the nonhemorrhagic
character of the abrasion on Viivi’s back. As both petitioners’ statements have
Waidla using the hatchet during that initial attack and Sakarias the knife, and as no
evidence at all suggests the two exchanged weapons during the initial attack, the
inescapable inference from all the available evidence is that Waidla inflicted the
hemorrhagic chopping wound to Viivi’s head.
To the extent the false attribution of the antemortem hatchet-blade blow to
Sakarias was potentially material to the penalty decision, it deprived Sakarias of a
fair penalty trial and entitles him to relief. Sakarias and the Attorney General
agree this aspect of prejudice should be tested on the “reasonable likelihood”
standard applicable to the knowing presentation of false evidence, which is
(footnote continued from previous page)
prosecutor’s use of “alternate theories” in separate cases. (Parker v. Singletary
(11th Cir. 1992) 974 F.2d 1562, 1578; Littlejohn v. State (Okla.Crim.App. 1998)
989 P.2d 901, 909; but see Prosecutorial Inconsistency, supra, 89 Cal. L.Rev. at
p. 1477 [“If . . . the court cannot determine which of the two versions is true, the
prosecution should lose the benefit of both positions”].)
31
equivalent to the “harmless beyond a reasonable doubt” test of Chapman v.
California (1967) 386 U.S. 18. (See United States v. Agurs (1976) 427 U.S. 97,
103; In re Malone, supra, 12 Cal.4th at p. 977; In re Jackson, supra, 3 Cal.4th at
pp. 597-598.) Because the prosecutor intentionally used an inconsistent and
probably false theory to obtain a death sentence against Sakarias, we agree with
the parties that Sakarias is entitled to relief if he can show a reasonable likelihood
the prosecutor’s use of the tainted factual theory affected the penalty verdict.
(Accord, United States v. Kattar, supra, 840 F.2d at p. 128; Prosecutorial
Inconsistency, supra, 89 Cal. L.Rev. at p. 1471.)
Aside from attributing the hemorrhagic chopping wound to Sakarias, the
prosecutor introduced and relied upon other significant aggravating circumstances.
Sakarias undisputedly played a direct role in the brutal, unprovoked killing of
Viivi Piirisild. The uncontroverted evidence showed that Sakarias stabbed Viivi
four times in the chest, including two potentially fatal wounds passing through
vital organs, and that he later took the hatchet, went to the bedroom, and struck her
at least twice in the head with the hatchet blade. Sakarias had a loaded handgun
when arrested and later was found in possession of shanks in the county jail (for
use, he said, against gang members who had robbed him). He also made
statements during trial indicating a lack of remorse for killing Viivi and suggesting
that he and Waidla had intended to kill Avo Piirisild as well. (Sakarias, supra, 22
Cal.4th at pp. 614-616.)
Other considerations, however, make it impossible for us to conclude
beyond a reasonable doubt that the prosecutorial argument that Sakarias struck all
the hatchet-blade blows, including the first, antemortem one, played no role in the
penalty decision. The first hatchet-blade wound was especially severe and was
described in gruesome detail by the medical examiner on direct examination by
the prosecutor. The path of the blade was parallel to the top of the head, straight
32
up and down if the victim was lying on the floor. The blade entered on the upper
forehead, penetrated through the scalp and the skull bone, then hit the inside of the
skull. Dr. Ribe believed the blade then “bounced” off the bone and continued to
the rear and right of the victim’s head, leaving another incision. The blow’s force
not only penetrated the front of the skull but fractured the back as well, pushing it
backward. As a result, a portion of the upper skull and scalp were partially
detached from the rest of the head, forming a flap that could be easily folded back.
Because of the strength of an adult human’s skull, Dr. Ribe believed a
“tremendous amount of force,” as much as an average man could exert swinging
the hatchet “very hard,” was needed to cause this wound.
In the guilt phase argument, the prosecutor discussed in detail Sakarias’s
attack on Viivi Piirisild with the hatchet, stating he went into the bedroom “to
strike a few more blows, to make sure that Viivi was dead in case the stabbing and
the bludgeoning weren’t enough. [¶] We know that there were three, in this series
of blows, sharp hatchet wounds to the top of Viivi’s head with a tremendous
force. . . . [¶] And it was with this strength that Peter Sakarias swung this hatchet
to penetrate this skull, to reach that most vital organ . . . . [¶] . . . [¶] We know
that there are in fact three hatchet wounds; the first penetrating the top of the skull,
and I know it was the first because it was a hemorrhagic wound, the one in the
hairline, the one that chopped the top of her head completely off with the
exception of some of the scalp that kept it completely on. [¶] . . . [¶] We know
that this last series of chop wounds . . . was consistent with the last three blows she
received.” In the penalty argument, the prosecutor twice again asserted that
Sakarias had inflicted all the chopping wounds, “swinging what I suggest were the
blows that actually ended her life.” Sakarias, according to Ipsen, “simply . . .
chop[ped] the top of her head off, as the evidence indicated you did in that back
room, thus finally ending her life.”
33
As to mitigation, Sakarias was young (21 years old) at the time of the
offense, had no record of violence, and had suffered persecution in the Soviet
Army. He was diagnosed with schizo-affective disorder, characterized by
paranoia and bipolar affect; the jury was informed that he had been found
incompetent to stand trial in May 1990 and spent almost a year in a state hospital.
The defense also played tapes of Sakarias’s mother, father, and friends, recorded
in Estonia, describing his childhood and youth. (Sakarias, supra, 22 Cal.4th at pp.
614-616.)
Some aspect or aspects of the case evidently gave one or more jurors
considerable pause in the sentencing decision, as the penalty jury deliberated for
more than 10 hours over three days and, at one point, declared itself unable to
reach a unanimous verdict, before finally returning a verdict of death.
In light of the prominence the prosecutor gave the antemortem chopping
wound, treating it as the final, fatal wound, and the likely impact the medical
examiner’s description of that wound and the force necessary to inflict it would
have had, that the prosecutor’s attribution of that blow to Sakarias had an effect on
the penalty verdict is reasonably likely. (United States v. Agurs, supra, 427 U.S.
at p. 103.) Though Sakarias’s undisputed conduct in stabbing Viivi Piirisild and
stealing her property played, no doubt, a major role in the jury’s decision, we
cannot conclude beyond a reasonable doubt that the jury’s decision would have
been the same had it not also been told that Sakarias finally ended Viivi’s life by
swinging a hatchet with all his strength, nearly cutting off the top of her head. The
prosecutor’s intentional and unjustified argument, inconsistent with the factual
theory and evidence he had presented at Waidla’s trial, that Sakarias struck the
34
antemortem hatchet-blade blow was therefore prejudicial to Sakarias as to
penalty.9
4. The People’s use of inconsistent and irreconcilable theories was
harmless as to Waidla
Our conclusion is necessarily different as to Waidla. As discussed earlier,
and as the referee found, the great weight of the evidence available—the
statements of both petitioners, the physical crime scene evidence, and the medical
examiner’s expert testimony—tended to show that Waidla wielded the hatchet in
the initial attack, that the first chopping wound was inflicted before Viivi
Piirisild’s death, and that Viivi died in her living room from the initial attack
before being dragged to the back bedroom. Ipsen’s argument in Waidla’s trial that
Waidla struck the first, antemortem blow with the hatchet blade, therefore, was
likely true.
Waidla points to Sakarias’s statement that he struck Viivi with the hatchet
in the bedroom. But Sakarias confessed to hitting Viivi with the hatchet only
twice, which left open the possibility—a probability under the other evidence—
that the first of the three chopping wounds was inflicted by Waidla during the
initial attack. To be sure, in his arguments to the Waidla jury Ipsen suggested that
Waidla had inflicted all the chop wounds, including the two post- or perimortem
wounds that Ipsen had strong reason to believe were actually attributable to
Sakarias. But this apparently false argument, inconsistent with the arguments
made in Sakarias’s trial, was not prejudicial to Waidla as to penalty, even under
9
Because the penalty judgment must be vacated on this ground, we need not
reach Sakarias’s further contentions that the prosecutor’s knowing use of false
argument or evidence violated due process, that the use of inconsistent theories
violated the Eighth Amendment to the United States Constitution, or that Ipsen
was judicially estopped from changing positions between the trials.
35
the reasonable likelihood standard of United States v. Agurs, supra, 427 U.S. at
page 103. To the extent he focused on particular blows, the impact of the
prosecutor’s arguments derived from the hemorrhagic hatchet-blade wound, the
chop “through the top of her skull” or “death blow,” rather than from the fact that
“further blows were struck after she was dead.”
Waidla admitted that after burglarizing the home of Viivi Piirisild, an older
woman who had been his benefactor, he hit her with the back of a hatchet he had
stolen from her vacation cabin. The medical examiner opined that these blunt
force wounds, which fractured several bones and knocked out Viivi’s teeth,
contributed to her death. The evidence, moreover, was strong that Waidla, during
this attack, turned the hatchet around and struck Viivi with the sharp blade with
such force as to penetrate her skull and cut a flap of skull and scalp from the top of
her head. Even balanced against Waidla’s youth, lack of a violent criminal record,
and personal history of brutalization in the Soviet Army (Waidla, supra, 22
Cal.4th at pp. 706, 712), the circumstances of the crime offered a compelling case
in aggravation. More to the point, the case would not have been made
significantly less compelling by a prosecutorial concession that Sakarias may have
inflicted the two later chop wounds, after Viivi had expired. As the Attorney
General remarks, “Under the circumstances, it would have made no difference to
the jury whether Waidla inflicted the nonhemorrhagic chopping wounds or handed
the weapon to Sakarias so he could inflict them, particularly since the wounds
were likely postmortem.”10 We conclude beyond a reasonable doubt that the
10
As in Sakarias, the Waidla penalty jury deliberated for several days and at
one point declared itself deadlocked. While this certainly tends to show the
penalty question was close for one or more jurors, it does not show that the
attribution of two nonhemorrhagic chop wounds, a relatively insignificant point
under any theory of the killing, was likely to have made a difference.
36
prosecutor’s attribution of these two wounds to Waidla, though likely false, did
not affect Waidla’s penalty and does not entitle him to relief.11
C. Claims of Miranda Error Are Cognizable on Habeas Corpus
In his petition, Waidla claims error in the trial court’s denial of his motion
to suppress his custodial statements to police on grounds they were taken in
violation of Miranda and related decisions. (Miranda, supra, 384 U.S. 436.) We
included the question of the cognizability of such claims on habeas corpus in our
order to show cause.
The Attorney General posits two reasons Miranda claims should be held
noncognizable on habeas corpus. First, he urges that “since Miranda claims are
based on the appellate record, they should be litigated on direct appeal, not on
habeas corpus.” We agree a Miranda claim presented on habeas corpus but based
solely on the appellate record should generally be denied on procedural grounds.
Where the claim was already raised and rejected on the direct appeal, we will
ordinarily decline to examine it again. (In re Harris, supra, 5 Cal.4th at p. 825,
citing In re Waltreus, supra, 62 Cal.2d at p. 225.) When the issue could have
been, but was not, raised on appeal, the unjustified failure to present it on appeal
generally precludes its consideration on habeas corpus. (In re Harris, supra, at
p. 829, citing In re Dixon, supra, 41 Cal.2d at p. 759.) But a Miranda claim based
substantially on facts outside the appellate record would not fall within these
11
For the same reason, Waidla is not entitled to relief on his claim that the
People knowingly employed false evidence or argument against him. The
apparently false attribution of the two nonhemorrhagic chopping wounds to
Waidla was not material, even under the reasonable likelihood standard (United
States v. Agurs, supra, 427 U.S. at p. 103) for knowing use of false evidence. Nor
did that attribution of blows make Waidla’s penalty determination unreliable in
violation of the Eighth Amendment to the United States Constitution.
37
procedural rules, as it could not have been adequately presented on direct appeal.
The Attorney General’s first argument, therefore, does not support a general rule
of noncognizability.
Second, the Attorney General maintains Miranda challenges should be
limited to direct appeal because the cost to the state interest in finality of
judgments incurred by allowing a collateral challenge is not balanced by any gain
in “assuring trustworthy evidence.” The premise of this argument is that the
Miranda rule, like the Fourth Amendment exclusionary rule, serves only to deter
unconstitutional government conduct and not to protect the innocent from being
falsely convicted. (See In re Sterling (1965) 63 Cal.2d 486, 487 [refusing to
entertain search and seizure issue on habeas corpus, in part because “ ‘the use of
illegally seized evidence carries with it no risk of convicting an innocent
person’ ”]; cf. Stone v. Powell (1976) 428 U.S. 465, 489-495 [holding state
prisoners may not raise search and seizure issues in federal habeas petitions, in
part because the cost, in loss of trustworthy evidence, of applying exclusionary
rule would not be balanced by slight increase in deterrence from allowing
collateral attack].)
We find the analogy inapt. As the Supreme Court explained in rejecting the
same argument, Miranda, unlike the Fourth Amendment exclusionary rule,
“safeguards ‘a fundamental trial right.’ ” (Withrow v. Williams (1993) 507 U.S.
680, 691.) “By bracing against ‘the possibility of unreliable statements in every
instance of in-custody interrogation,’ Miranda serves to guard against ‘the use of
unreliable statements at trial.’ ” (Id. at p. 692.) While a statement taken in
violation of Miranda is not necessarily involuntary, the presence or absence of
Miranda advisements and waivers is one circumstance to be considered in
evaluating voluntariness. (Id. at pp. 693-694; see, e.g., People v. Memro (1995)
11 Cal.4th 786, 827.) Other circumstances being equal, a custodial confession
38
taken without Miranda advisements or despite the suspect’s invocation of his or
her Miranda rights is less likely to be trustworthy than one preceded by
advisements and knowing waivers.
The Attorney General cites People v. Hill (1973) 9 Cal.3d 784, in which we
rejected a collateral attack (presented on appeal from a penalty retrial) on the guilt
judgment, made on the basis that admission of the defendant’s confession violated
Escobedo v. Illinois (1964) 378 U.S. 478 (deprivation of right to counsel at
interrogation). We observed, first, that the claim had already been rejected in the
defendant’s previous appeal. (People v. Hill, supra, at p. 786; see People v. Hill
(1967) 66 Cal.2d 536, 552-554.) We went on to say that where the defendant had
a full opportunity to litigate the issue and the judgment was long final we would
not entertain a collateral attack “based upon an issue which does not relate to the
guilt or innocence of the defendant.” (People v. Hill, supra, 9 Cal.3d at p. 787.)
As already explained, the rule on habeas corpus is consistent with our
reasoning in People v. Hill, supra, 9 Cal.3d at page 786, in that we ordinarily will
not entertain a habeas claim already raised and rejected on direct appeal. (In re
Harris, supra, 5 Cal.4th at p. 825.) To the extent our further characterization of a
claim under Escobedo v. Illinois, supra, 378 U.S. 478, as unrelated to guilt or
innocence is inconsistent with the high court’s (Withrow v. Williams, supra, 507
U.S. at p. 692) and our own characterization of a Miranda claim as one relating to
the reliability of the evidence of guilt, we disapprove our former remark.
We therefore reject the Attorney General’s suggestion of a blanket rule of
noncognizability for Miranda claims on habeas corpus, but observe that where
such claims are based on the appellate record they will ordinarily be denied on the
procedural ground that they were, or could have been, presented on direct appeal.
(In re Harris, supra, 5 Cal.4th at pp. 824-829.) In addition, a Miranda claim that
could not be presented on appeal because the defendant did not raise it at trial
39
would also ordinarily be barred on habeas corpus. (See In re Seaton (2004) 34
Cal.4th 193, 199-200 [claim forfeited on appeal because it was not raised at trial is
also barred on habeas corpus, unless facts essential to the claim were not and
could not reasonably have been known at trial].)
III. DISPOSITION
Our orders to show cause were limited to the issues discussed in this
opinion; petitioners’ other claims will be resolved by separate orders, as is our
practice. (See In re Scott (2003) 29 Cal.4th 783, 829.)
The order to show cause as to Waidla’s petition is discharged.
Sakarias’s petition for a writ of habeas corpus is granted insofar as it claims
prosecutorial inconsistency material to the penalty verdict, and the judgment of the
Los Angeles County Superior Court in People v. Peter Sakarias, No. A711340,
therefore is vacated insofar as it imposes a sentence of death. Upon finality of our
opinion, the Clerk of the Supreme Court shall remit a certified copy of the opinion
and order to the Los Angeles County Superior Court for filing, and respondent
Attorney General shall serve another copy thereof on the prosecuting attorney in
conformity with Penal Code section 1382, subdivision (a)(2). (See In re Jones
(1996) 13 Cal.4th 552, 588.)
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
CHIN, J.
BROWN, J.
MORENO, J.
40
CONCURRING AND DISSENTING OPINION BY BAXTER, J.
I concur in the judgment except insofar as it orders vacation of petitioner
Sakarias’s death judgment. As to Sakarias, I respectfully dissent.
Sakarias conspired with petitioner Waidla to rob and kill Avo and Viivi
Piirisild, their former benefactors. They invaded the Piirisilds’ home, lay in wait,
and ambushed and murdered Viivi. During a prolonged and horrific assault,
numerous blows and wounds were inflicted with a knife and a hatchet. Sakarias
admitted he used both weapons on the victim. As planned, the killers carried away
property from the Piirisild residence. When later apprehended, Sakarias denied
remorse and insisted he and Waidla wanted to kill Avo as well. The majority
concede, as they must, that Sakarias’s guilt of capital murder is conclusive, and
that ample evidence supports his jury’s decision to sentence him to death.
Yet the majority say Sakarias’s due process rights were prejudicially
violated as to penalty when, in their separate trials, prosecutor Ipsen, acting in
“bad faith,” sought to enhance each petitioner’s culpability by attributing the same
single antemortem hatchet-chopping wound to each killer. Ipsen’s bad faith is
demonstrated, the majority assert, because (1) the available evidence pointed
strongly to Waidla, not Sakarias, as the perpetrator of this act, and (2) Ipsen
“manipulated” the evidence at Sakarias’s trial by failing to elicit certain medical
testimony he had earlier used to attribute the same act to Waidla. The majority
insist that the misimpression thus conveyed to Sakarias’s jury may have
influenced its penalty decision. I disagree.
At the outset, I discern no bad faith in Ipsen’s conduct. Our referee was
never asked to make such a finding, and he did not do so. In my view, there is no
1
basis for a bad faith determination. Ipsen adhered to the well-established rule
against the knowing presentation of false evidence. (Napue v. Illinois (1959)
360 U.S. 264, 269; In re Jackson (1992) 3 Cal.4th 578, 595-596; see also Brown v.
Borg (9th Cir. 1991) 951 F.2d 1011, 1014-1017.) Moreover, he presumably
discharged his obligation to give the defense any otherwise unavailable evidence
he possessed that materially undermined the prosecution’s case against Sakarias.
(E.g., Brady v. Maryland (1963) 373 U.S. 83 (Brady).) Nor was there any secret,
at the time of Sakarias’s trial, about Ipsen’s case against Waidla. Because
Sakarias’s trial followed Waidla’s, this information was by then a matter of public
record.1
Under such circumstances, the People would not generally be required to
introduce, in their own case, evidence helpful to the defense. Instead, the
prosecution could properly rely on the defense to expose the gaps and weaknesses
in its proof.2 I see no reason why a different rule should apply in Sakarias’s case
simply because the omitted evidence was earlier presented against Waidla.
Further, I believe Ipsen demonstrated no bad faith by theorizing, in each
defendant’s trial, that the antemortem hatchet chop was inflicted by that defendant.
1
Thus, Ipsen did not even have a Brady duty to alert Sakarias’s counsel to
the evidence presented in Waidla’s trial. There is no Brady claim of prosecutorial
suppression of evidence “ ‘when information is fully available to a defendant at
the time of trial and his only reason for not obtaining and presenting the evidence
to the court is his lack of reasonable diligence. . . . ’ ” (People v. Morrison (2004)
34 Cal.4th 698, 715, quoting United States v. Brown (5th Cir. 1980) 628 F.2d 471,
473.) Surely reasonable diligence in Sakarias’s case included reading the public
transcript of his codefendant’s trial.
2
As we recently noted, “the adversary system [remains] the primary means
by which truth is uncovered. [Citation.]” (People v. Morrison, supra, 34 Cal.4th
698, 715.)
2
I have two reasons for this conclusion. First, the law governing inconsistent
prosecutorial arguments is complex and unsettled; indeed, a case presenting such
issues is currently under review by the United States Supreme Court. (Stumpf v.
Mitchell (6th Cir. 2004) 367 F.3d 594 (Stumpf), cert. granted sub nom. Mitchell v.
Stumpf (Jan. 7, 2005, No. 04-637) ___ U.S. ___ [160 L.Ed.2d 610].) Because
appellate judges significantly disagree about what a prosecutor may and may not
do in this regard, there seems little basis to conclude that Ipsen’s strategy
constituted bad faith. Second, the evidence of who delivered the antemortem
chopping blow is hardly as clear as the majority suggest. Our referee found that
Ipsen himself was sincerely uncertain which of the two murderers had committed
this particular act. Under these circumstances, I cannot find bad faith in Ipsen’s
efforts to make a plausible case against each petitioner.
Federal courts of appeals have reached mixed results when faced with
claims that prosecutors violated defendants’ due process rights by presenting
inconsistent theories in separate trials. For example, in Drake v. Francis
(11th Cir. 1984) 727 F.2d 990, reversed in part sub nom. Drake v. Kemp (11th Cir.
1985) 762 F.2d 1449, the prosecution won separate convictions against two men
for robbing, and fatally beating and stabbing, a Georgia barber in his shop. In
defendant Campbell’s trial, the prosecution urged that Campbell was the actual
murderer, while in Drake’s trial, the state claimed that, given Campbell’s physical
disabilities, Drake must have joined the attack on the victim. A three-judge panel
rejected Drake’s “novel” (id., at p. 994) claim of a due process violation,
observing that the state’s theories in the two trials were “fairly consistent.” (Ibid.)
In each trial, the panel noted, the state made clear its belief that both men were
3
involved in the criminal episode, and merely stressed the degree of participation
of the defendant then on trial. (Ibid.)3
Several other cases have found due process implications in the state’s use
of inconsistent theories against separately tried codefendants. But these decisions
are characterized by stark facts, and by sharp divisions within the reviewing
courts.
For example, in Smith v. Groose (8th Cir. 2000) 205 F.3d 1045, the
prosecutor, in separate trials, used contradictory statements by the same witness—
one of which was necessarily false—to convict, on conflicting factual theories,
two unrelated defendants (members of separate burglary parties) for felony murder
of the same victim. In these circumstances, the three-judge panel held that “the
Due Process Clause forbids a state from using inconsistent, irreconcilable theories
to secure convictions against two or more defendants in prosecutions for the same
offenses arising out of the same event.” (Id., at p. 1049, italics added.)
In Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045 (Thompson), revd.
on other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538, the
prosecution won a murder conviction against defendant Leitch on the theory that
Leitch enlisted Thompson’s help to kill victim Fleischli because Fleischli was
interfering in Leitch’s marriage. Later, though no new evidence had surfaced, the
prosecution switched gears entirely and urged in Thompson’s trial, through
different witnesses, that Thompson, acting alone, had raped and then killed
3
Reviewing, en banc, the three-judge panel’s decision, the court of appeals
granted Drake relief on other grounds. A majority of the en banc court thus
declined to discuss Drake’s “inconsistent theories” claim. (Drake v. Kemp, supra,
762 F.2d 1449, 1451.) Only one member would have addressed and granted relief
on this claim. (Id., at pp. 1470-1479 (conc. opn. of Clark, J.).)
4
Fleischli. On habeas corpus, Thompson argued that his capital rape and murder
convictions, obtained on this inconsistent ground, violated his due process rights.
Because the case involved a threshold procedural dispute, and because
relief was granted on other grounds, not all eleven en banc judges addressed the
“inconsistent theories” claim. Four judges found Thompson had suffered a
prejudicial due process violation, reasoning that, in his case, the prosecution, using
unreliable informants, had deviated from the theory of joint culpability it had
otherwise consistently advanced. (Thompson, supra, 120 F.3d 1045, 1047, 1055-
1059 (plur. opn. of Fletcher, J.).) Two more judges advocated a remand to
determine prejudice. (Id., at pp. 1063-1064 (conc. opn. of Tashima, J.).)
However, three other members of the Thompson court expressed serious
reservations about the notion that inconsistent prosecutorial theories in separate
trials are constitutionally improper, at least where the evidence is ambiguous and
the prosecution introduces no knowing falsehoods.
Judge Kozinski, for example, noted a line of cases holding that judicial
estoppel will not apply against the government. (Thompson, supra, 120 F.3d
1045, 1070 (dis. opn. of Kozinski, J), citing Nichols v. Scott (5th Cir. 1995)
69 F.3d 1255, 1272, United States v. McCaskey (5th Cir. 1993) 9 F.3d 368, 378, &
United States v. Kattar (1st Cir. 1988) 840 F.2d 118, 129-130, fn. 7.) Moreover,
Judge Kozinski observed, “[p]rosecutors are not omniscient. [Citation.] They
may be confronted with witnesses who present mutually inconsistent versions of
what happened, and there may be no way of knowing which version—if any—is
true. Is the prosecutor then precluded from presenting either case to the jury?
Must he pick one based on his intuition? I believe not. A prosecutor, like any
other lawyer, is entitled to retain skepticism about the evidence he presents and
trust the jury to make the right judgment. After all, the guarantee of due process
encompasses a fair trial before a fair judge and jury; the right to a lawyer and to
5
exculpatory evidence available to the prosecution; and the right not to have the
prosecutor lie to the jury. But I cannot see that it encompasses the right to have a
prosecutor who is convinced of the defendant’s guilt. We trust the adversary
process, the good sense of jurors, the presumption of innocence and the
prosecution’s heavy burden of proof to ensure a verdict that is fair to the
defendant.” (Thompson, supra, 120 F.3d 1045, 1071 (dis. opn. of Kozinski, J.).)4
In a separate dissenting opinion, Judge Kleinfeld put it another way: “We,
not prosecutors, are supposed to adhere to stare decisis. That is because equal
justice for all requires that we decide like cases alike. Prosecutors are not bound
by the principle of stare decisis, because they do not decide cases. A prosecutor
cannot present evidence or a case he knows to be false. But there is no reason to
think the prosecutor [of Leitch and Thompson] knew either theory he presented
was false, when he presented it or at any time. . . . [¶] There is no reason why a
prosecutor’s change of theory at a later time should be treated as a due process
violation. The standard boilerplate instruction tells juries that ‘arguments of
counsel are not evidence.’ [Citation.] The jury is supposed to decide the case
based on the evidence and the judge’s instructions. The lawyers offer the jury
theories to help them make sense of the evidence. But . . . the lawyers were not at
the scene of the crime, and can only, like the jurors, draw inferences. It is up to
4
Judge Kozinski conceded that, if only one defendant could have committed
a capital crime, but two were convicted and sentenced to death in separate trials on
irreconcilable theories by mutually inconsistent verdicts, the state might be
required to determine which judgment was false, and to take steps to set it aside,
because “the better view seems to be that the state has no right to execute an
innocent man, no matter how fairly it has obtained the conviction.” (Thompson,
supra, 120 F.3d 1045, 1071 (dis. opn. of Kozinski, J.), italics added.) Such is
hardly the situation here.
6
the jury, not the prosecutor, to decide what happened amidst a lot of lies.”
(Thompson, supra, 120 F.3d 1045, 1074-1075 (dis. opn. of Kleinfeld, J.).)
In Stumpf, supra, 367 F.3d 594—the case currently under high court
review—the crucial issue for capital murder, which required intent to kill, was
which of two accomplices, Wesley or Stumpf, fired shots that killed Mary Jane
Stout during a robbery of the Stout home. Criminal proceedings against Stumpf
proceeded while Wesley’s extradition from outside the state was pending. Stumpf
pled guilty to capital murder charges. At the required evidentiary hearing to
establish a factual basis for the plea, the state sought to establish Stumpf’s
homicidal intent by showing he was the actual killer. To this end, the state
presented evidence that the fatal shots were fired from the gun Stumpf had earlier
used to wound Norman Stout. The three-judge plea court found that Stumpf had
personally killed Mary Jane. At the time of sentencing, the same court made this
an express factor in its decision to impose the death penalty.
Later, at Wesley’s capital murder trial, the prosecution argued that Wesley
was the actual killer. For this purpose, the prosecution adduced the testimony of
Wesley’s cellmate, not available when Stumpf was convicted and sentenced. The
cellmate testified Wesley had admitted that, after shooting Norman, Stumpf
panicked, dropped his weapon, and fled, whereupon Wesley picked up the gun and
used it to murder Mary Jane. On this evidence, Wesley’s jury convicted him of
capital murder (though it later recommended against the death penalty). Stumpf
thereupon sought to withdraw his own guilty plea, but the state opposed the
motion, urging that Wesley’s cellmate was not a credible witness.
On federal habeas corpus, a majority of the three-judge court of appeals
panel held that the state had prejudicially violated Stumpf’s due process rights as
to both guilt and penalty. The majority reasoned that the state had cast doubt upon
the fundamental fairness and reliability of Stumpf’s death judgment by later
7
pressing, against Wesley, an inconsistent, irreconcilable factual theory of the same
capital murder. (Stumpf, supra, 367 F.3d 594, 610-618; but see id., at pp. 618-623
(dis. opn. of Boggs, C.J.).) As noted, it appears the United States Supreme Court
will decide whether the court of appeals majority was correct.
Here, Ipsen did not use inconsistent theories to obtain capital murder
judgments against two defendants, where only one could be guilty or death-
eligible. There is no doubt that Sakarias and Waidla together committed the first
degree murder of Viivi Piirisild with special circumstances, and that both men
were enthusiastic participants in the gruesome attack. The only dispute in this
case relates to a particular detail which a jury could consider in deciding whether
death was the appropriate penalty for each killer. Under these circumstances, and
given the uncertain state of the law, I cannot find in Ipsen’s conduct an act of bad
faith amounting to a constitutional violation.
The majority insist Ipsen lacked good faith justification for attributing the
antemortem chopping blow to Sakarias, because the evidence clearly pointed to
Waidla as the culprit. Again, I disagree. Ipsen was not an eyewitness to Viivi’s
murder. Neither Waidla nor Sakarias confessed to delivering the disputed blow.
Evidence on that point was entirely circumstantial. In my view, it was not so clear
as to preclude Ipsen from reserving personal judgment—as he did—and presenting
the plausible case against each man.
As the majority notes, the case against Waidla is as follows: When the
attack began in the Piirisilds’ living room, Sakarias was using a knife, while
Waidla was using the blunt edge of the hatchet to bludgeon the victim. At some
point, she was moved from the living room to the bedroom. There is evidence she
was already dead by that time, and the two hatchet chops to which Sakarias
admitted were, he said, inflicted in the bedroom. Hence, the earlier, antemortem
chopping blow must have been inflicted in the living room, and by Waidla.
8
This is a plausible scenario, but a substantial case could be made against
Sakarias as well. After all, neither Sakarias nor Waidla ever attributed any hatchet
chops to Waidla. On the other hand, Sakarias conceded that he did use the hatchet
to deliver such blows. Indeed, Sakarias admitted inflicting two of the three hatchet
chops disclosed by the evidence, all of which were in relatively close proximity on
the victim’s head. As Ipsen implied in Sakarias’s trial, one could infer that
Sakarias had simply understated by one the number of chops he delivered.
Moreover, while most of the bloodstains and spatters were found in the living
room, there were significant spatters in the bedroom as well. In one place in the
bedroom, a detective testified at Sakarias’s trial, there was enough blood “to
actually start to trickle down the wall.” This was some, if not conclusive,
evidence that the victim bled in the bedroom, and was thus still alive.
The majority claim Waidla must have inflicted the antemortem wound
because the medical examiner testified at Waidla’s trial that an abrasion on Viivi’s
back was probably caused by dragging, and that the “nonhemorrhagic” nature of
the abrasion suggested it was sustained postmortem. Thus, the majority infer, the
abrasion must have occurred when the victim, already dead, was dragged to the
bedroom. Because Sakarias admitted only two chop wounds in the bedroom, the
majority reason he must have inflicted the two postmortem wounds, and none
other.
But this analysis is hardly conclusive. Expert opinions are often subject to
debate and interpretation.5 Moreover, even if we credit an inference that the
5
I realize the evidence that the victim “bled out” on the living room carpet
may also support an inference that she was dead or dying when later moved to the
bedroom. Of course, this evidence was presented in Sakarias’s trial. Thus, the
inference was there for Sakarias’s jury to draw. This further diminishes the
possibility that, because the “back abrasion” testimony was omitted from
(footnote continued on next page)
9
victim was already dead when she was moved to the bedroom, that does not prove
Sakarias wielded the hatchet only thereafter. We know this weapon was
transferred from Waidla to Sakarias at some point, but we do not know exactly
when. Given the uncertain evidence, I conclude that so long as Ipsen did not
introduce false evidence, he acted in good faith by presenting alternative theories
about this detail of the attack. (See, e.g., Parker v. Singletary (11th Cir. 1992)
974 F.2d 1562, 1578.) Having satisfied his discovery obligations, Ipsen could
properly rely, in each case, on the due diligence of the defense to expose
weaknesses in the People’s proof.
By concluding that Ipsen could only present the case they think is stronger,
the majority intrude much too far into matters which, for good reason, have
traditionally been left to prosecutorial discretion. I cannot join the majority’s
attempt to second-guess the prosecution’s strategy in this way.
In any event, I do not accept the majority’s conclusion that Sakarias
suffered prejudice on the issue of penalty. The undisputed details of Sakarias’s
role in this brutal murder are aggravated in the extreme. Though the Piirisilds had
bestowed many kindnesses on Sakarias and Waidla, the two men decided they had
been slighted by their benefactors. Filled with hate and greed, Sakarias and
Waidla hatched a plan to burglarize and rob the couple. But once in the Piirisild
home, they did not simply take property and leave. Instead, they “started waiting
for Viivi” with murderous intent. (People v. Sakarias (2000) 22 Cal.4th 596, 613.)
(footnote continued from previous page)
Sakarias’s trial, Sakarias’s jury got a materially misleading picture of the
chronology of events.
10
As the majority recite, Sakarias personally used his knife to stab Viivi at
least four times in the chest. Two of these wounds were potentially fatal. Sakarias
ceased his attack with the knife only when its handle broke off. He also inflicted
at least two chopping wounds to Viivi’s head with the hatchet. His jury must have
understood that, regardless of whether Viivi was then still alive, Sakarias
administered these blows for the purpose of ensuring her death.
Far from horrified at their bloody work, the murderers stayed for a snack,
and Sakarias calmly ate liverwurst from the Piirisilds’ refrigerator. Later, he made
clear to the police his only regret—that they had not killed Avo Piirisild as well.
Thus, the uncontroverted evidence demonstrates Sakarias’s full,
remorseless involvement in the murder plot, and details the many grievous blows
and wounds he administered during the joint attack on the victim. Under these
circumstances, it stretches credulity to suggest that the issue whether he inflicted a
single additional blow—gruesome as it was—could alone have tipped the jury’s
penalty determination.
The majority note that Ipsen made Sakarias’s responsibility for the
antemortem hatchet chop a significant theme of his argument. But such references
occurred, for the most part, at the guilt phase of Sakarias’s trial, where they could
have caused no prejudice. As the majority concede, Ipsen gave this subject only
two brief references at the penalty phase. The bulk of Ipsen’s penalty argument
was devoted to rebutting the defense case in mitigation, including Sakarias’s
claims of extreme mental disorder. In my view, this further reduces any chance
that the penalty outcome was affected.6
6
The majority note that Sakarias’s penalty jury deliberated extensively, and
announced at one point they were unable to reach a verdict. But we expect no less
than careful deliberation in a capital case. Any difficulties the jury experienced in
(footnote continued on next page)
11
I do not mean to imply that I would never find prejudicial misconduct in a
prosecutor’s use of irreconcilable theories and evidence against separately tried
defendants. As the cases have suggested, difficult questions arise where, for
example, such tactics lead to the convictions of two persons for a crime only one
could have committed. But such issues are not presented here. Nothing that
happened in this case persuades me that the penalty judgment against Sakarias is
unfair.
I would discharge the order to show cause as to both Waidla and Sakarias.
BAXTER, J.
(footnote continued from previous page)
reaching a penalty consensus most likely arose from the case in mitigation, which
included evidence of Sakarias’s youth, the harsh life he had endured as an
Estonian conscript in the Soviet Army, and his mental and emotional problems.
12
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Sakarias & In re Waidla
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S082299 & S102401
Date Filed: March 3, 2005
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Cliff Gardner, under appointment by the Supreme Court, and Robert Derham for Petitioner Peter Sakarias.
Maria E. Stratton, Federal Public Defender and Sean K. Kennedy, Deputy Federal Public Defender, for
Petitioner Tauno Waidla.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, Sanjay T.
Kumar, Susan Lee Frierson, John R Gorey and Michael C. Keller, Deputy Attorneys General, for
Respondent the People.
Steve Cooley, District Attorney, Brentford J. Ferreira and Hyman Sisman, Deputy District Attorneys, for
Los Angeles District Attorney’s Office as Amicus Curiae on behalf of Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Cliff Gardner
Law Office of Cliff Garnder
2088 Union Street, Suite 3
San Francisco, CA 94123
(415) 922-9404
Sean K. Kennedy
Deputy Federal Public Defender
321 East 2nd Street
Los Angeles, CA 90012
(213) 894-2854
Michael C. Keller
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2258
Hyman Sisman
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-3845
Opinion Information
| Date: | Docket Number: |
| Thu, 03/03/2005 | S082299 |
Parties
| 1 | Sakarias, Peter (Petitioner) San Quentin State Prison Represented by Cliff Gardner Attorney At Law 2088 Union Street, Suite 3 San Francisco, CA |
| 2 | Sakarias, Peter (Petitioner) San Quentin State Prison Represented by Robert Derham Attorney At Law 1010 B Street, Suite 212 San Rafael, CA |
| 3 | Department Of Corrections (Non-Title Respondent) Represented by Attorney General - Los Angeles Office Michael C. Keller, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| Disposition | |
| Mar 3 2005 | Opinion filed |
| Dockets | |
| Sep 20 1999 | Petition for writ of (AA-related) Habeas Corpus filed by attorneys Cliff Gardner and Robert Derham (140 pp.) |
| Sep 20 1999 | Filed: Four Volumes of Exhibits in support of Petition. |
| Nov 4 1999 | Informal response requested Letter sent to respondent requesting informal response (Rule 60); due 12/6/99. Any reply due within 30 days of service and filing of response. |
| Nov 12 1999 | Received letter from: Atty Robert Derham; dated 11/11/99 Re Signed Declarations (Exhibits 27-34) |
| Nov 12 1999 | Filed: Signed Declarations (Exhibit 27-34; Volume 3) |
| Dec 1 1999 | Application for Extension of Time filed To file Informal Response. |
| Dec 6 1999 | Extension of Time application Granted To 2/4/2000 To file Informal Response. |
| Feb 1 2000 | Application for Extension of Time filed To file Informal Response. |
| Feb 4 2000 | Extension of Time application Granted To 3/6/2000 To file Informal Response. |
| Mar 3 2000 | Application for Extension of Time filed To file Informal Response. |
| Mar 9 2000 | Extension of Time application Granted To 4/5/2000 To file Informal Response. |
| Apr 5 2000 | Informal Response filed (AA) (59 pages) |
| May 2 2000 | Application for Extension of Time filed To file reply To Informal Response. |
| May 4 2000 | Extension of Time application Granted To 6/5/2000 To file reply To Informal Response. |
| Jun 2 2000 | Application for Extension of Time filed To file reply To Informal Response. |
| Jun 8 2000 | Extension of Time application Granted To 8/7/2000 To file reply To Informal Response. |
| Aug 9 2000 | Application for Extension of Time filed To file reply to informal response. (3rd request) |
| Aug 15 2000 | Extension of Time application Granted To 9/6/2000 to file reply to informal response. |
| Sep 5 2000 | Reply to Informal Response filed (AA) |
| Jun 27 2001 | Order to show cause issued The Director of the Department of Corrections is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on the grounds that the prosecutor presented false evidence and argument, and presented facts inconsistent with those presented at a previous trial, as alleged in claims V and VI of the petition for habeas corpus filed September 20, 1999. The return shall be filed on or before July 27, 2001. Votes: George, C.J., Kennard, Werdegar, Chin, and Brown, J.J. |
| Jul 23 2001 | Application for Extension of Time filed To file return to OSC. (1st request) |
| Jul 25 2001 | Extension of Time application Granted To 9/25/2001 to file return to order to show cause. |
| Sep 19 2001 | Application for Extension of Time filed to file return to OSC (2nd request) |
| Sep 26 2001 | Extension of Time application Granted To 10/25/2001 to file return to order to show cause. |
| Oct 18 2001 | Application for Extension of Time filed to file return to OSC. (3rd request) |
| Nov 1 2001 | Extension of Time application Granted To 11/26/2001 to file return to OSC. |
| Nov 20 2001 | Written return filed (32 pp.) |
| Nov 20 2001 | Request for judicial notice filed (in AA proceeding) respondent's request. |
| Dec 12 2001 | Request for extension of time filed to file traverse. (1st request) |
| Dec 20 2001 | Filed: Suppl. application for extension of time to file traverse. |
| Dec 21 2001 | Extension of time granted To 1/22/2002 to file traverse. |
| Jan 22 2002 | Note: Confidential habeas funds request filed in AA no. S024349. |
| Jan 22 2002 | Motion for discovery (in AA case) by petitioner |
| Jan 22 2002 | Request for extension of time filed To file traverse. (2nd request) |
| Jan 28 2002 | Extension of time granted To 2/21/2002 to file traverse. |
| Feb 1 2002 | Opposition filed by respondent, to petnr.'s to motion for discovery. |
| Feb 20 2002 | Request for extension of time filed To file traverse. (3rd request) |
| Feb 21 2002 | Extension of time granted To 3/25/2002 to file traverse. |
| Feb 27 2002 | Discovery motion denied Petitioner's motion for discovery, filed January 22, 2001, is denied without prejudice to the making of a new motion before the referee if and when one is appointed. |
| Feb 27 2002 | Request for judicial notice granted Respondent's request for judicial notice, filed Nov. 20, 2001, is granted. |
| Mar 25 2002 | Request for extension of time filed To file traverse. (4th request) |
| Apr 3 2002 | Extension of time granted To 4/24/2002 to file traverse. |
| Apr 25 2002 | Request for extension of time filed To file traverse. (5th request) |
| May 2 2002 | Extension of time granted To 5/24/2002 to file traverse. |
| May 22 2002 | Request for extension of time filed To file traverse. (6th request) |
| May 30 2002 | Filed: Suppl. declaration in support of request for extenstion of time to file traverse. |
| Jun 5 2002 | Extension of time granted To 6/24/2002 to file the traverse. Counsel anticipates filing that pleading by 7/29/2002. One further extension for 35 additional days will be granted. |
| Jul 1 2002 | Request for extension of time filed To file traverse. (7th request) |
| Jul 3 2002 | Extension of time granted To 7/29/2002 to file traverse. Counsel anticipates filing that brief by 7/29/2002. No further extension will be granted. |
| Jul 23 2002 | Habeas funds request filed Petitioner's application for funds to duplicate recently disclosed Brady materials and for extension of time to file traverse. |
| Jul 30 2002 | Extension of time granted To 9/27/2002 to file traverse, in view of the recent offer by the District Attorney of Los Angeles County to provide certain "discovery" material to petnr. The court anticipates that after that date, no further extension will be granted. |
| Jul 31 2002 | Order filed re Habeas Funds Request Petitioner's motion for habeas corpus investigative funds, filed July 23, 2002, is granted. Counsel for petitioner is authorized to incur expenses not to exceed $670 to obtain photocopies of 2,500 pages of "Brady" materials relating Dr. James Ribe. Brown, J., was recused and did not participate. |
| Aug 19 2002 | Change of Address filed for: attorney Robert Derham. |
| Sep 27 2002 | Traverse to return filed (27 pp. - excluding exhibits) |
| Jan 15 2003 | Reference hearing ordered THE COURT: Based on the record in these matters and good cause appearing: The causes (In re Sakarias on H.C. and In re Waidla on H.C., S102401) are consolidated for consideration and decision. The Honorable Robert A. Dukes, Presiding Judge of the Los Angeles County Superior Court, shall select a Judge of the Los Angeles County 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: 1. Was prosecutor Steven Ipsen's argument of inconsistent factual theories to the juries in the trials of petitioners Waidla and Sakarias intentional or inadvertent? 2. (a) Did Ipsen believe, at the time of Sakarias's trial, that the murder victim, Viivi Piirisild, was already dead at the time she was dragged from the living room to the bedroom? (b) Did he have reason to believe Piirisild was dead when moved to the bedroom? 3. At Sakarias's trial, did Ipsen deliberately refrain from asking the medical examiner, Dr. James Ribe, about a postmortem abrasion on the victim's back? 4. At Waidla's trial, did Ipsen refrain from seeking admission of Sakarias's confession into evidence because it contradicted the factual theory he intended to argue to the Waidla jury? 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. Any requests for discovery in this consolidated matter should be addressed to the referee. |
| Jan 23 2003 | Change of Address filed for: Petitioner's counsel Cliff Gardner. |
| Feb 11 2003 | Referee appointed THE COURT: Based on the record in these matters and good cause appearing: The Honorable Thomas L. Willhite, Jr., Judge of the Los Angeles County Superior Court, is appointed to sit as a referee in this consolidated proceeding. He shall take evidence and make findings of fact on the following questions: 1. Was prosecutor Steven Ipsen's argument of inconsistent factual theories to the juries in the trials of petitioners Waidla and Sakarias intentional or inadvertent? 2. (a) Did Ipsen believe, at the time of Sakarias's trial, that the murder victim, Viivi Piirisild, was already dead at the time she was dragged from the living room to the bedroom? (b) Did he have reason to believe Piirisild was dead when moved to the bedroom? 3. At Sakarias's trial, did Ipsen deliberately refrain from asking the medical examiner, Dr. James Ribe, about a postmortem abrasion on the victim's back? 4. At Waidla's trial, did Ipsen refrain from seeking admission of Sakarias's confession into evidence because it contradicted the factual theory he intended to argue to the Waidla jury? 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. Any requests for discovery in this consolidated matter should be addressed to the referee. |
| Dec 16 2003 | Referee's report filed |
| Dec 16 2003 | Letter sent to: counsel advising that referee's report was filed this date. The parties are invited to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 1-15-2004. Responses, if any, should be served and filed 30 days thereafter. |
| Jan 6 2004 | Request for extension of time filed to file resp.'s exceptions to the referee's report and brief on the merits. (1st request) |
| Jan 8 2004 | Letter sent to: Judge Willhite, Jr., requesting additional reporter's transcripts. |
| Jan 13 2004 | Extension of time granted to 2/17/2004 to file respondent's exceptions to report of referee and brief on the merits. |
| Feb 6 2004 | Request for extension of time filed to file resp's exceptions to the referee's report and brief on the merits. (2nd request) |
| Feb 13 2004 | Change of Address filed for: associate counsel Robert Derham. |
| Feb 25 2004 | Extension of time granted to 3/18/2004 to file respondent's exceptions to the report of the referee and brief on the merits. Upon the court's own motion, the time for filing petitioners' exceptions to the referee's report and brief on the merits is extended to and including 3/18/2004. |
| Mar 5 2004 | Filed: record from evidentiary hearing: 2 vols. of reporter's transcript (204 pp.); 3 files of court documents; and 2 binders containing exhibits. |
| Mar 16 2004 | Received application to file Amicus Curiae Brief (amicus curiae brief attached). |
| Mar 16 2004 | Received: application for permission to file a/c brief & brief of Los Angeles County District Attorney's Office |
| Mar 17 2004 | Exceptions/briefing filed re referee's report respondent's exceptions to the referee's report and brief on the merits. [consl. with S102401] (34 pp.) |
| Mar 17 2004 | Request for extension of time filed by petitioner Waidla to file exceptions to referee's report and brief on the merits. |
| Mar 19 2004 | Extension of time granted to 4-1-2004 for petitioner Waidla to file exceptions to the report of the referee and brief on the merits. Upon the court's own motion, the time for filing petitioner Sakarias's exceptions to the referee's report and brief on the merits is also extended to and including 4-1-2004. No further extensions of time are contemplated. |
| Apr 1 2004 | Exceptions/briefing filed re referee's report petitioner Sakarias's brief on the merits and exceptions to the referee's report. (57 pp.) |
| Apr 6 2004 | Filed: Supplemental certificate of service of petitioner Sakarias's brief on the merits. |
| Apr 29 2004 | Request for extension of time filed by respondent to file reply to petitioner's brief on the merits. (1st request) |
| May 6 2004 | Extension of time granted to 6/2/2004 to file respondent's reply to petitioners' briefs on the merits. Upon the court's own motion, the time for filing petitioners' responses to respondent's brief on the merits is also extended to and including June 2, 2004. |
| May 12 2004 | Response brief re referee's report (awaiting more) by respondent. (29 pp.) |
| May 13 2004 | Order filed The application of the Los Angeles County District Attorney for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party on or before June 2, 2004. |
| May 13 2004 | Amicus curiae brief filed by Los Angeles County District Attorney in support of respondent. (30 pp.) |
| May 28 2004 | Response brief re referee's report (awaiting more) petitioner Sakarias's responding brief on the merits. (26 pp.) |
| Jun 2 2004 | Response brief re referee's report (fully briefed) Petitioner Waidla's reply brief. (17 pp.) |
| Aug 23 2004 | Oral argument letter sent advising counsel that cases (In re Sakarias; In re Waidla) could be scheduled for oral argument as early as the October calendar, to be held the week of Oct. 4, 2004, in Los Angeles. Tentatively, the court has determined that each petitioner will have 30 minutes for argument, and the respondent will have 30 minutes for argument. |
| Aug 30 2004 | Filed: letter from petitioner Waidla, dated 8-27-2004, requesting that oral argument not be set for 10-8-2004. |
| Nov 3 2004 | Case ordered on calendar 12/7/04 @ 9am., San Diego |
| Nov 23 2004 | Filed: respondent's application to divide time for oral argument. |
| Nov 30 2004 | Order filed The request of respondent for permission to be represented by two counsel at oral argument is granted. |
| Dec 7 2004 | Cause argued and submitted |
| Dec 10 2004 | Received: letter from appellant, dated 12-9-2004, regarding denial of rehearing of Stumpf v. Mitchell (6th Circ. 2004) 367 F.3d 594. |
| Mar 3 2005 | Opinion filed OSC as to Waidla's petition is discharged. Sakarias's petition for writ of habeas corpus is granted insofar as it claims prosecutorial inconsistency material to the penalty verdict, and the judgment of the Los Angeles County Superior Court in People v. Peter Sakarias, No. A711340, therefore is vacated insofar as it imposes a sentence of death. Opinion by Werdegar, J. ----- joined by George, C.J., Kennard, Chin, Brown and Moreno, J.J. Concurring and dissenting opinion by Baxter, J. |
| Apr 5 2005 | Order filed: remaining habeas corpus issues denied The petition for writ of habeas corpus, filed September 20, 1999, is denied as to all claims except Claim VI. Claims I through IV, including all subclaims, are denied on the merits. Claim V and claims VII through XI are dismissed as moot in light of the relief granted on Claim VI pursuant to our order to show cause. (See In re Sakarias (2005) ____ Cal.4th ____.) Claim XII is denied as premature. Brown, J., was absent and did not participate. |
| Apr 5 2005 | Case Final |
| Apr 5 2005 | Letter sent to: counsel advising that the opinion, filed on March 3, 2005, is now final. No remittitur will issue. |
| Apr 5 2005 | Note: certified copy of opinion sent to Los Angeles County Superior Court. |
| Briefs | |
| Nov 20 2001 | Written return filed |
| Sep 27 2002 | Traverse to return filed |
| May 13 2004 | Amicus curiae brief filed |
| Jun 2 2004 | Response brief re referee's report (fully briefed) |
