5 Cal.4th 750, S022475, In re Clark

Docket Nº:S022475
Citation:5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729
Opinion Judge:[10] Baxter
Party Name:In re Clark
Attorney:[7] Eric S. Multhaup, Gail R. Weinheimer, Jean R. Sternberg, Denise Anton and Lynne Shatzkin Coffin, under appointments by the Supreme Court, for Petitioner. [8] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General,...
Case Date:July 29, 1993
Court:Supreme Court of California
 
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Page 750

5 Cal.4th 750

21 Cal.Rptr.2d 509, 855 P.2d 729

In re WILLIAM JOHN CLARK on Habeas Corpus.

S022475.

Supreme Court of California

July 29, 1993

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COUNSEL

Eric S. Multhaup, Gail R. Weinheimer, Jean R. Sternberg, Denise Anton and Lynne Shatzkin Coffin, under appointments by the Supreme Court, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Morris Beatus and Dane R. Gillette, Deputy Attorneys General, for Respondent.

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OPINION

BAXTER, J.—

William John Clark petitions for a writ of habeas corpus, claiming that the judgment pursuant to which he is confined under a sentence of death is invalid. We conclude that his unjustified delay in presenting his claims bars consideration of the merits of the petition.

An exception to this bar would be recognized if, as a result of the defects of which petitioner complains, the conviction and/or sentence were shown to constitute a fundamental miscarriage of justice. A fundamental miscarriage of justice is established by showing: (1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which he was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death; or (4) that the petitioner was convicted under an invalid statute.

The allegations of the petition and supporting exhibits fail to demonstrate that petitioner could establish the existence of any of these exceptions, however. We shall, therefore, deny the petition for writ of habeas corpus.

I. Prior Proceedings

On April 5, 1990, this court affirmed a judgment of conviction of petitioner, and the imposition of the death penalty, after a jury found petitioner guilty of first degree murder with a special circumstance of murder in the commission of arson (Pen. Code, §§ 189, 190.2, subd. (a) (17) (vii)),1 two counts of attempted murder (§§ 664/187), arson (§ 451, subd. (a)), and rape (§ 261, subd. (2)). (People v. Clark (1990) 50 Cal.3d 583 [268 Cal.Rptr. 399].)

There was no question that petitioner committed the acts which led to his conviction. On January 6, 1982, he threw one bucket of gasoline into the dining area of the home of David and Ava Gawronski, and another into the couple's bedroom, where both were sleeping. He ignited the gasoline with lighted highway flares. David Gawronski suffered fatal burns in the ensuing flash fire. Ava Gawronski was burned so severely that she was hospitalized for 10 months, and suffered permanent injuries and disfigurement, including the loss of her fingers and nose.

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Petitioner admitted these acts, contesting only the prosecution's claim that he intended to kill the Gawronskis and their infant daughter, who was rescued unharmed from another bedroom. His intent, he explained, was only to drive the couple out of the home so that he could shoot and kill David Gawronski with the shotgun he carried with him, while Ava Gawronski watched. His purpose was to demonstrate, by causing her to suffer, how much Ava Gawronski, a licensed social worker and marriage and family counselor, had hurt him when she terminated the counseling she had been giving him. He admitted, however, that when he threw the flare to ignite the gasoline, he knew he was throwing it into the victims' bedroom.

The death penalty verdict was returned after a retrial of the penalty phase at which petitioner represented himself. The original jury had been unable to reach a penalty verdict.

None of the experts who examined petitioner diagnosed him as incompetent or mentally ill. The second penalty jury heard testimony by a psychologist, Dr. John Hatcher, that petitioner had a "borderline personality" between neurotic and psychotic. Petitioner had told Dr. Hatcher that he felt morally justified under his own ethical code, and had stated that he could not have asked that his act of revenge turn out any better than it had. Dr. Linda Weinberger, also a psychologist, testified that petitioner had expressed a desire to kill two other persons, and had said he would consider finding a person about to be released from prison to do this for him.

The judgment of death was imposed on February 1, 1985. Counsel on appeal was appointed by this court on March 5, 1985, the record on appeal was filed on November 21, 1986, and briefing was completed on December 26, 1989. At the time the judgment was affirmed on April 5, 1990, however, no petition for writ of habeas corpus challenging the validity of that judgment had been filed.

Almost one year later, petitioner first sought relief by habeas corpus, filing his first such petition on March 15, 1991. No explanation for the delay in seeking relief was offered in the petition. The first petition alleged: (1) that this court had denied petitioner due process and violated the ex post facto guarantees of the state and federal Constitutions in construing the arson special circumstance (§ 190.2, subd. (a) (17) (viii)); (2) that, because petitioner was incompetent, petitioner had been denied due process, effective assistance of counsel, and protection against cruel and unusual punishment at the penalty phase of his trial when the trial court acceded to petitioner's request to represent himself; and (3) that this court had failed to apply the test of reversible error required by Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710- 711,

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87 S.Ct. 824, 24 A.L.R.3d 1065], in ruling on the appellate claims of error.

After receiving opposition, and denying petitioner's request for time to supplement the petition with additional factual allegations and supporting documentation, this court concluded that the petition failed to state a prima facie case entitling petitioner to relief. The petition was denied on May 15, 1991.

II. The Second Petition

On August 16, 1991, this second petition was filed.

Petitioner explains the filing of another petition on the basis that his additional claims were "developed" in response to the decision of the United States Supreme Court in McCleskey v. Zant (1991) 499 U.S. 467 [113 L.Ed.2d 517, 111 S.Ct. 1454].

In this petition, petitioner challenges the validity of the judgment on the grounds that in the proceedings leading to his conviction and sentence he was denied due process, a fair trial, effective assistance of counsel, and protection against cruel and unusual punishment. These claims, as characterized by petitioner, are set forth below.

1. Failure to Recuse. The office of the Los Angeles County District Attorney, members of whose staff prosecuted petitioner, failed to recuse itself after hiring as a deputy district attorney an attorney who had represented petitioner during pretrial proceedings until October 19, 1982, when he withdrew as petitioner's counsel. This, petitioner argues, denied him due process and the right to counsel because the prosecution thereby became privy to more than one year of confidential communications, and successor counsel was denied access to the attorney as a source of information, strategy, or testimony.

2. Effective Counsel. Petitioner claims he was denied his right to effective assistance of counsel for the reasons set forth below:

a. Petitioner's counsel failed to investigate petitioner's competency to represent himself at the retrial of the penalty phase or to request the appointment of separate counsel to undertake that investigation, did not defer to petitioner's desire to testify at the penalty retrial and thus did not

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remove one of the bases for petitioner's election to represent himself, and did not bring to the attention of the court information tending to negate petitioner's competency to represent himself or even to proceed to the penalty trial. Had counsel adequately warned petitioner of the dangers of self-representation, accommodated petitioner's concerns, brought to the attention of the court information tending to show that petitioner's election was not knowing and voluntary, or investigated petitioner's competency and developed evidence to establish that petitioner could not make a knowing and intelligent decision, petitioner would have enjoyed his right to representation by effective counsel at the penalty retrial.

b. Petitioner's counsel failed to investigate and present evidence of petitioner's conforming conduct, lack of disciplinary record, and the positive image jail personnel held of him during the three years prior to trial, and to present this as mitigating evidence at the penalty phase.

c. Petitioner's counsel failed to investigate and present evidence other than the testimony of petitioner and his parents regarding petitioner's background and upbringing. Numerous other witnesses were available, including members of petitioner's family, and his school and social contacts; in addition, documentary materials were also available. All of these would have had a mitigating effect.

d. Petitioner's counsel erroneously advised him to submit to examination by a psychologist selected by the prosecution, failed to monitor the examination, and failed to insist on a verbatim recording of the examination.

3. Due Process/Fair Trial. Petitioner was denied due process and a fair trial by the prosecutor's "false implication" to the jury that...

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