Bemore v. Chappell
| Decision Date | 09 June 2015 |
| Docket Number | No. 12–99005.,12–99005. |
| Parties | Terry D. BEMORE, Petitioner–Appellant, v. Kevin CHAPPELL, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert R. Bryan (argued) and Cheryl J. Cotterill (argued), Law Offices of Robert R. Bryan, San Francisco, CA, for Petitioner–Appellant.
Holly D. Wilkens (argued), Supervising Deputy Attorney General; Kamala D. Harris, Attorney General; Julie L. Garland, Senior Assistant Attorney General; Robin Urbanski, Deputy Attorney General, San Diego, CA, for Respondent–Appellee.
Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:08–cv–00311–LAB–WVG.
Before: STEPHEN REINHARDT, RONALD M. GOULD, and MARSHA S. BERZON, Circuit Judges.
Terry Bemore was sentenced to death for the murder of Kenneth Muck, a employee at Aztec Liquor in San Diego. His co-defendant, Keith Cosby, was tried by a separate jury and sentenced to twenty-five years to life for the same crime. Bemore seeks habeas relief on the grounds that his trial lawyers were constitutionally ineffective for: presenting a flawed alibi defense; failing to challenge the torture special circumstance; presenting no evidence of mental impairments
at the guilt phase or penalty phase; and creating a conflict of interest by diverting state-paid defense funds for personal use.1
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that counsel provided constitutionally deficient representation at the guilt phase, but Bemore did not suffer the requisite prejudice to the guilt verdict as a result. With regard to the penalty phase, however, Bemore was both deprived of the representation guaranteed by the Sixth Amendment and so substantially prejudiced by the constitutionally deficient deprivation of adequate representation at both stages that it was unreasonable for the state court to have left the death penalty in place.
We therefore affirm in part, as to the district court's denial of the habeas corpus petition challenge to Bemore's conviction for murder. We reverse in part, as to the district court's denial of the habeas petition with regard to the penalty phase claim.
Around 10:00 pm on August 26th, 1985, Kenneth Muck was ending his shift as a clerk at Aztec Liquor. Before locking up for the night, Muck was supposed to set a burglar alarm and transfer cash from the store register to a safe in a back-room storage area. At some point after 10:15 pm, the security company that monitored the alarm system called Aztec's owner to notify him that the alarm had not yet been set. The owner sent an employee to check on the store. The employee walked in, saw blood near the storage room, fled, and immediately called the police.2
The police found Muck dead on the floor of the storage room, stabbed thirty-seven times. The safe was gone. Smeared blood and striation marks on the floor indicated that the safe had been tipped onto a mop and pushed or dragged out the door. Officers noted two sets of bloody footprints, one of which, an expert determined, was made by men's size thirteen tennis shoes.
Two months after the robbery and murder, a local TV show, Crime Stoppers, ran a segment seeking information about the Aztec crimes. Patti Hill, girlfriend of Bemore's friend Jackie Robertson, contacted Crime Stoppers and conveyed her suspicion that Bemore and his friend Keith Cosby were involved. She provided to the police several money bags and a knife Bemore had left in Hill and Robertson's apartment, as well as a mop Bemore had thrown into a dumpster. The owner of Aztec Liquors identified the mop and money bags as identical to those stolen from the store.
Not long afterwards, Cosby was driving Bemore's car and crashed it into someone's yard. Cosby was taken into custody, and a detective obtained a warrant to search the car. Found in the trunk during the search were two knives and two pairs of shoes, size twelve or thirteen. Cosby eventually admitted he was at Aztec Liquors the night of the robbery, but told police Bemore had committed the murder while he waited outside.
Cosby and Bemore were both charged with first degree murder (Cal. Pen.Code § 187 ), robbery (Cal. Pen.Code § 211 ), and burglary (Cal. Pen.Code § 459 ), along with two special circumstances: murder in the commission of a robbery and intentional murder involving torture. The trials were severed; Cosby went to trial first. He was convicted of both Aztec crimes and also of another murder-robbery, tried concurrently. With respect to the Aztec murder, the jury did not unanimously find true the special circumstances of torture and murder in the commission of a robbery. Cosby was sentenced to twenty-five years to life for Muck's murder.
Bemore was then tried separately. The prosecution centered its case on the testimony of residents of the Bates Street neighborhood who knew Bemore. Bates Street was known to be “a marginal neighborhood whose inhabitants generally knew one another and were involved in the sale and use of crack cocaine.” People v. Bemore, 22 Cal.4th 809, 821, 94 Cal.Rptr.2d 840, 996 P.2d 1152 (2000). Taken together, the Bates Street residents testifying at trial placed Bemore on Bates Street the night of the murder, wearing shoes similar to the size thirteen sneakers whose footprints were left at the crime scene, and with fresh scratches on his back.3 Bemore's friends Troy Patterson and Jackie Robertson admitted to helping Bemore and Cosby drill a hole in the stolen safe. Several witnesses testified that Bemore had made statements to them implicating himself in Muck's murder.
In support of the torture special circumstance allegation, the prosecution's expert witnesses testified about the circumstances and details of the murder. The forensic pathologist who performed the autopsy, for example, concluded that Muck was likely restrained for some period of time during the attack. He opined that at least two knives were used to cause the thirty-seven wounds
and that both knives recovered from Bemore's trunk were consistent with at least some of the wounds. A crime scene reconstructionist concluded using blood spatter patterns that fifteen to thirty minutes passed from the initial assault to the last blow.4 At closing argument, the prosecution suggested that the evidence indicated that Bemore and Cosby had restrained and tortured Muck for the purpose of “forc[ing] [him] to open up the safe.”
The defense, led by appointed counsel Robert McKechnie, presented few witnesses, relying primarily on Bemore's own testimony. Bemore's primary defense was a novel alibi.
According to Bemore, he was committing another robbery at the time of the Aztec crimes. Bemore told the jury that at approximately 9:00 pm on the evening of Muck's death, he, Patterson, and Cosby drove to a K–Mart to case it for a robbery. While he was inside, Patterson and Cosby took off in his car. Left with no car and no cash, Bemore walked to a nearby Wherehouse Records store and robbed one of the clerks. He then got into a cab and went to buy cocaine, eventually returning to Bates Street to smoke the cocaine and to buy more.
Some (unspecified) time later, Bemore went on, he saw Cosby and Patterson drive past in his car with a blood-covered safe in the backseat. He helped his friends carry the safe to his garage, assisted them in opening it, and convinced them to give him a share of the money inside. Despite the earlier testimony of several Bates Street residents that Bemore had implicated himself in the murder, Bemore firmly denied knowing anything about it.
On cross-examination, the alibi broke down. Twice Bemore referred to Wherehouse Records—the store he claimed to have robbed—as “Wherehouse Liquor.” He couldn't remember which direction he had walked to get from K–Mart to Wherehouse Records; why he had chosen to rob Wherehouse Records over all the other stores he had passed along the way; or whether he had intended to rob the Wherehouse Records store when he walked into it. He couldn't remember whether there had been people in the store when he pointed the gun at the cashier or whether any of the employees had said anything to him during or after the robbery. Nor could he remember several other aspects of the robbery, including what he said, how he handled the gun, and how much money he took. He seemed to have forgotten factual details he had given in his direct testimony.5
Two witnesses to the Wherehouse Records robbery had identified Bemore as the robber at a preliminary hearing.6 To corroborate Bemore's alibi at trial, counsel called the two as witnesses. One—the cashier, Yolanda Salvatierra—this time was not sure whether Bemore was the robber, and said she had in fact been unsure when she identified Bemore at the preliminary hearing. Both at trial and at the preliminary hearing, she described the robber as “muscular” and six-foot-two or six-foot-three. Bemore was six-foot-six, and he was thin both at the time the crimes occurred and at trial.
Carrie Jacobs, the second Wherehouse Records robbery witness who had identified Bemore at the preliminary hearing, was unavailable at trial. Her testimony from the preliminary hearing was read to the jury. Although she had identified Bemore out of a lineup after the crime, Jacobs wasn't sure at the preliminary hearing that Bemore was the person she had earlier identified; she “couldn't ... definitely say” that he was. Like Salvatierra, she remembered the robber as muscular and about six-foot-one, and she thought he was “possibly ... darker” than Bemore. She reported that she had gotten only a fleeting glance at the Wherehouse Records robber, who otherwise had his back to her the entire time.
On rebuttal, the prosecution called a third eyewitness, Kim Rainer, an employee who was with Salvatierra when the store was robbed. Immediately...
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