In re Andrews

• Decision Date: 26 August 2002
• Docket Number: No. S017657.,S017657.
• Citation: 124 Cal.Rptr.2d 473,28 Cal.4th 1234,52 P.3d 656
• Court: California Supreme Court
• Parties: In re Jesse James ANDREWS on Habeas Corpus.

124 Cal.Rptr.2d 473

28 Cal.4th 1234

52 P.3d 656

In re Jesse James ANDREWS on Habeas Corpus.

No. S017657.

Supreme Court of California.

August 26, 2002.

As Modified August 26, 2002.

Rehearing Denied November 13, 2002.¹

Fern M. Laethem and Lynne S. Coffin, State Public Defenders, Billie Jan Goldstein, Therene Powell and Donald J. Ayoob, Assistant State Public Defenders; and Michael N. Burt for Petitioner Jesse Andrews.

John K. Van de Kamp, Daniel E. Lungren and Bill Lockyer, Attorneys General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Edward T. Fogel, Jr., and Carol Wendelin Pollack, Assistant Attorneys General, Marc E. Turchin, Susan Lee Frierson, William T. Harter, Kerrigan M. Reach and Suzann E. Papagoda, Deputy Attorneys General, for Respondent State of California.

BROWN, J.

I. Introduction

Petitioner Jesse James Andrews was convicted of capital murder. (See People v. Andrews (1989) 49 Cal.3d 200, 260 Cal. Rptr. 583, 776 P.2d 285 (Andrews I).) As recounted in Andrews I, the evidence at trial established the following: "On the evening of December 9, 1979, police were summoned to the Los Angeles apartment of Preston Wheeler. There they found the bodies of Wheeler, Patrice Brandon and Ronald Chism. Wheeler had been stabbed in the chest six times and shot in the neck at close range with either a .32- or .357-caliber weapon. His face and head were bruised, and his face had been slashed with a knife. Brandon and Chism had been strangled with wire coat hangers. Their faces were bruised, Chism's extensively. Brandon's anus was extremely dilated, bruised, reddened and torn, consistent with the insertion of a penis shortly before her death. There was also redness around the opening of her vagina, and vaginal samples revealed the presence of semen and spermatozoa. All three victims were bound hand and foot." (Id. at p. 206, 260 Cal.Rptr. 583, 776 P.2d 285.)

At trial, the prosecution's chief witness was Charles Sanders, who testified pursuant to a plea bargain in which he pled guilty to three counts of second degree murder in exchange for a promised sentence of 17 years to life in prison.

Sanders testified that he and petitioner devised a plan to rob Wheeler, a drug dealer. Defendant armed himself with a .357 magnum and gave Sanders a .38- or .32-caliber automatic. On the evening of the murders, they visited their friend, Carol Brooks, who lived in the same apartment building as Wheeler, and then went to Wheeler's apartment. "In response to their knocking, Wheeler, who apparently knew [petitioner], let them in. Also inside the apartment was a woman (Patrice Brandon). [¶] After smoking some marijuana with Wheeler, [petitioner] and Sanders drew their guns. Sanders tied Wheeler and Brandon with belts and socks, put on a pair of gloves, and began to search the apartment for drugs and money. Except for some powder on a saucer which appeared to be cocaine, the search was unsuccessful. [Petitioner] questioned Wheeler, who denied having any drugs or money. Saying he would make Brandon talk, [petitioner] dragged her into the kitchen and closed the door. Sanders remained in the living room with Wheeler." (Andrews I, supra, 49 Cal.3d at p. 207, 260 Cal.Rptr. 583, 776 P.2d 285.) Sanders heard petitioner hitting Brandon and later heard sounds as though they were having sex. When petitioner came out of the kitchen shortly thereafter, Sanders saw Brandon's pants around her ankles. (Andrews I, supra, 49 Cal.3d at p. 207,260 Cal.Rptr. 583,776 P.2d 285.)

"[Petitioner] put his gun in Wheeler's mouth. He threatened to kill Wheeler and Brandon unless Wheeler revealed the location of the drugs. Wheeler said the `dope' was in the attic, and pointed out a trap door leading up to it. Sanders climbed into the attic.[¶] While in the attic, Sanders heard two shots. When he came down, [petitioner] told him he had shot Wheeler because the latter had tried to jump out the window. Sanders asked if Wheeler was dead. [Petitioner] responded he was 'standing right up' on Wheeler when he fired the gun.... When Sanders asked about Brandon, [petitioner] replied he had killed her before leaving the kitchen." (Andrews I, supra, 49 Cal.3d at p. 207, 260 Cal.Rptr. 583, 776 P.2d 285.)

While petitioner and Sanders were cleaning up the apartment, Ronald Chism knocked on the door and asked if everything was all right. Petitioner said Wheeler was home and invited him inside. Petitioner "then hit Chism on the head, tied him up, and took him into the bathroom. Sanders saw [petitioner] sitting astride Chism's back, joining and separating his clenched fists in a tugging motion, apparently strangling Chism." (Andrews I, supra, 49 Cal.3d at p. 208, 260 Cal.Rptr. 583, 776 P.2d 285.) Sanders then saw petitioner go into the kitchen and choke Brandon with a wire clothes hanger. When the two left the apartment, petitioner gave Sanders some money, saying it was all he had found. (Ibid.)

Carol Brooks, whose brother was married to Sanders's sister, testified that on the night of the murders petitioner told her they were going to Wheeler's to get some money. Sanders later acknowledged to her his involvement in the crimes; and petitioner told her he had shot Wheeler, taken $300, and had sex with Brandon. (Andrews I, supra, 49 Cal.3d at p. 208, 260 Cal.Rptr. 583, 776 P.2d 285.)

Print evidence disclosed the presence of petitioner's fingerprints on Wheeler's living room coffee table. A set of left and right palm prints was found on the kitchen floor, the left one about an inch from Brandon's body. (Andrews I, supra, 49 Cal.3d at p. 208, 260 Cal.Rptr. 583, 776 P.2d 285.)

Petitioner did not testify. In an effort to undermine Sanders's credibility, the defense called two jail inmates whose testimony implied he had lied about petitioner's involvement in the crimes to minimize his own. (See Andrews I, supra, 49 Cal.3d at p. 209, 260 Cal.Rptr. 583, 776 P.2d 285.)

A jury convicted petitioner of the first degree murders of Wheeler, Brandon, and Chism. (Pen.Code, § 187; all undesignated statutory references are to the Penal Code.) As to each murder, it found true special circumstance allegations of prior murder (§ 190.2, subd. (a)(2)), multiple murder (id., subd. (a)(3)), and robbery murder (id., former subd. (a)(17)(i), now subd. (a)(17)(A)). As to Brandon's murder, it found true the rape-murder specialcircumstance allegation. (Id., former subd. (a)(17)(iii), now subd. (a)(17)(Q.) The jury also convicted petitioner of rape (former § 261, subds. 2, 3), sodomy by a foreign object (§ 289), and robbery (§ 211). It further found petitioner used a firearm in committing each offense. (§ 12022.5.)

Following the penalty phase evidence, the jury determined the punishment should be death. (Andrews I, supra, 49 Cal.3d at p. 206,260 Cal.Rptr. 583, 776 P.2d 285.) On automatic appeal, this court affirmed the judgment.

Thereafter, petitioner sought a writ of habeas corpus, alleging his trial attorneys (lead counsel Gerald Lenoir, assisted by Halvor Miller) rendered ineffective assistance at the penalty phase. We issued an order to show cause and subsequently appointed the Honorable Jacqueline A. Connor to conduct a reference hearing and take evidence and make findings of fact on the following six questions:

1. What mitigating character and background evidence could have been, but was not, presented by petitioner's trial attorneys at his penalty trial?

2. What investigative steps by trial counsel, if any, would have led to each such item of information?

3. What investigative steps, if any, did trial counsel take in an effort to gather mitigating evidence to be presented at the penalty phase?

4. What tactical or financial constraints, if any, weighed against the investigation or presentation of mitigating character and background evidence at the penalty phase?

5. What evidence, damaging to petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal, if petitioner had introduced any such mitigating character and background evidence?

6. Did petitioner himself request that either the investigation or the presentation of mitigating evidence at the penalty phase be curtailed in any manner? If so, what specifically did petitioner request?

Having considered the record of the hearing, the referee's factual findings, and petitioner's original trial, we conclude petitioner received constitutionally adequate representation, and any inadequacy did not result in prejudice.

II. Penalty Phase Evidence

"At the penalty phase, the prosecution evidence consisted of a stipulation and two exhibits. The parties stipulated that [petitioner] was born on July 2, 1950, and that he pled guilty in Alabama to the crimes of armed robbery in 1968, escape in 1969, and robbery in 1977. The two exhibits were photographs of two of the victims; they had been excluded from the guilt phase on the ground that they were unduly inflammatory.

"The defense penalty phase evidence, admitted under stipulation, consisted of sworn statements describing the circumstances surrounding [petitioner's] prior Alabama murder conviction. According to the statements, [petitioner] and a 17-yearold companion, each of whom carried a gun, entered a grocery store and announced a robbery. When the store clerk placed his hand down the front of his apron, [petitioner's] companion fired three gunshots, killing him." (Andrews I, supra, 49 Cal.3d at p. 225, 260 Cal.Rptr. 583, 776 P.2d 285.)

In his closing argument, Lenoir presented petitioner as an unsophisticated criminal whose crimes-committed many years apart-escalated when planned robberies took unexpected turns. He noted that the Alabama murder occurred when petitioner was only 16 years old and his confederate, Freddie Square, shot the victim when he apparently reached for a weapon. Lenoir also portrayed his conduct as less blameworthy than that of other special circumstance murderers who...