Bonin v. Vasquez, CV 90-3589-ER.

• Citation: 794 F. Supp. 957
• Decision Date: 20 July 1992
• Docket Number: No. CV 90-3589-ER.,CV 90-3589-ER.
• Court: U.S. District Court — Central District of California
• Parties: William BONIN, Petitioner, v. Daniel VASQUEZ, et al., Respondents.

794 F. Supp. 957

William BONIN, Petitioner, v. Daniel VASQUEZ, et al., Respondents.

No. CV 90-3589-ER.

United States District Court, C.D. California.

July 20, 1992.

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Daniel E. Lungren, Atty. Gen. of the State of Cal., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Senior Asst. Atty. Gen., Esteban Hernandez, Deputy Atty. Gen., Steven H. Zeigen, Supervising Deputy Atty. Gen., San Diego, Cal., for respondents.

Fern M. Laethem, State Public Defender, William D. Freeman, Deputy State Public Defender, Michael H. Roquemore, Deputy State Public Defender, Los Angeles, Cal., for petitioner BONIN.

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

RAFEEDIE, District Judge.

I. INTRODUCTION

Petitioner, William George Bonin, has filed a petition for writ of habeas corpus challenging his 1983 convictions in Orange County on four counts of first degree murder and his subsequent death sentence. Prior to standing trial in Orange County, Bonin was convicted of ten counts of first degree murder in Los Angeles and received a death sentence from that jurisdiction. This order and opinion concerns only his Orange County case, though the Los Angeles case will be discussed as needed.¹

Bonin claims that a total of 21 separate constitutional errors infected either the guilt phase or the penalty phase of his state trial. He argues that these errors require the Court to reverse either his convictions, his sentence, or both.

In reviewing this petition, the Court has read the entire state record,² as well as all of the pleadings and responsive documents filed by both parties. In addition, the Court conducted a three day evidentiary hearing on several of the issues involved in this case.

As detailed below, the Court has thoroughly examined each issue raised by Bonin. Having done so, the Court finds that Bonin has not presented any claim which warrants the granting of a writ of habeas corpus. Accordingly, the Court DENIES Bonin's petition for writ of habeas corpus.

II. FACTS

This case involves the murder of four young males, Glenn Barker, Russell Rugh, Frank Fox, and Lawrence Sharp, whose bodies were found in different locations in Orange County. The victims ranged in age from fourteen to seventeen. All four victims died as a result of ligature strangulation. All of the bodies bore ligature markings on the neck and either the wrists or ankles, or both. All of the victims had been beaten around the face prior to their death. Several of the victims had also been beaten in the genital area. Evidence presented at the trial suggested that several of the victims had engaged in sexual activity immediately prior to their death. All of the bodies were nude, with no clothes or identification found in the vicinity of the bodies.

The prosecution's case consisted, broadly, of three types of evidence: similar crimes evidence based on the similarity between two of the Los Angeles murders³ and the four Orange County murders, Bonin's confessions to a television reporter and an inmate, and testimony linking carpet fibers found on the victims' bodies to carpeting in the back of Bonin's van. To establish the similar crimes evidence, the prosecution relied heavily on the testimony of two of Bonin's former co-defendants, Greg Miley, who assisted Bonin in murdering Miranda, and James Munro, who participated in the murder of Wells.

After two days of deliberation, the jury found Bonin guilty of four counts of first degree murder with the special circumstance of multiple murder and four counts of robbery with the infliction of great bodily injury.

The prosecution presented additional evidence at the penalty phase: Five male witnesses testified that Bonin sexually assaulted them in the late 1960's and early 1970's; the custodian of medical records for Atascadero State Hospital discussed the contents of Bonin's medical records;⁴ and witnesses testified about the murders of: Marcus Grabs (age 17), Donald Hyden (age 15), David Murillo, James Macabe (age 12), Ronald Gatlin (age 19), Harry Turner (age 14), Steven Wood (age 16), and Darin Kendrick (age 19).⁵

The defense presentation at the penalty phase consisted of further attacking the credibility of Munro, culling favorable information from the Atascadero records, and eliciting testimony from Bonin's mother and two brothers.

After two days of deliberation, the jury found death to be the appropriate punishment.

III. THE ISSUES

Issue A: THE PUBLICATION RIGHTS AGREEMENT BETWEEN PETITIONER AND HIS TRIAL COUNSEL WAS A CONFLICT OF INTEREST THAT DENIED PETITIONER THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

PETITIONER'S CLAIM

Petitioner contends that he and his attorney, William Charvet, entered into a literary rights agreement before Charvet ever became his attorney. The agreement purportedly provided, among other things, that Charvet would represent Bonin at any and all of his trials in exchange for 40% interest in the proceeds of a book to be written about petitioner's life. The remaining profits would be shared by Mary Neiswender, the projected author of the book, and Bonin's mother. As part of the agreement, Charvet received the exclusive right to petitioner's life story and agreed to arrange for the book to be written and published.

After serving as retained counsel in Los Angeles, Charvet sought and received appointment as petitioner's attorney in Orange County. Thus, despite anticipated compensation from the literary rights agreement, Charvet also received payment from the Orange County court.

According to petitioner, the agreement gave Charvet a good reason for maximizing the publicity in petitioner's case since Charvet's financial reward was tied to the success of the book to be written about petitioner's life. As a result, Charvet's personal interests arising from the book agreement conflicted with his duty to effectively represent petitioner. Because of this conflict, petitioner believes that Charvet's performance suffered. Moreover, petitioner contends that he was neither advised of the dangers inherent in compensating an attorney with a literary rights agreement, nor did he waive his right to conflict-free representation.

Petitioner alleges that several trial decisions made by Charvet were motivated by the agreement and not by petitioner's best interest. Bonin's primary argument is that Charvet failed to present mitigating evidence because the court-appointed psychiatrist who was to testify about Bonin's history found out about the book agreement during a pre-penalty phase interview with Bonin.⁶ Charvet feared that the psychiatrist, Dr. Lunde, might mention the agreement in his testimony, so Charvet convinced Bonin to tell the court that he did not want Dr. Lunde to testify on his behalf at the penalty phase. In addition, Bonin believes that Charvet presented little mitigating evidence because he wanted Bonin to receive a death sentence rather than a sentence of life without parole because that would heighten public interest in Bonin's story.

THE LAW

In order to establish a Sixth Amendment violation, a defendant who did not object to a possible conflict during trial must demonstrate that an actual conflict adversely affected his attorney's performance. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980).⁷ Once a defendant demonstrates an actual conflict and an adverse affect on performance, there is no further requirement that the defendant prove prejudice. Id. at 349, 100 S.Ct. at 1718-19. In other words, the defendant need not show that the conflict actually affected the outcome of the trial. However, a defendant cannot reverse a conviction merely on a showing of a possible conflict. Id. at 350, 100 S.Ct. at 1719.

DISCUSSION

The Court held an evidentiary hearing on this issue. After listening to the testimony, observing the witnesses, examining the exhibits, and considering the briefs submitted, the Court concludes that Bonin and Charvet never had a literary rights agreement. Instead, the evidence repeatedly demonstrated that the relevant parties — Bonin, Charvet, and Neiswender — expressed interest in such an arrangement, but that expressions of interest never came to fruition. Without a literary rights agreement, there was no conflict of interest. Furthermore, the Court finds that Charvet had tactical reasons for deciding not to use the psychiatric testimony of Dr. Lunde and those reasons did not involve a perceived literary rights agreement.

Of the three parties to the purported agreement, only Neiswender and Charvet testified. Significantly, petitioner attended the hearing, but declined to testify, thereby leaving the vigorous and adamant denials of Charvet and Neiswender unrebutted by any percipient witness to the alleged agreement. Instead, petitioner relied upon a collection of witnesses each of whom appeared openly hostile to Charvet. These witnesses included Suzy Hood, Charvet's former client and ex-fiance; Tracy Stewart, Charvet's former junior associate and second counsel at petitioner's trial, who parted company with Charvet under unhappy circumstances and who remains angry at him; Melody Norris, Charvet's former secretary who expressed an obvious distaste for Charvet; Donald Okula, Stewart's current associate who did some work for Charvet during petitioner's trial and who expressed dislike for Charvet; and Richard Blum, a retired banker currently involved in litigation with Charvet.

Taking the collective testimony at face value, the evidence falls far short of proving by a preponderance of the evidence that Bonin and Charvet had a literary rights agreement prior to or during the trial. The evidence does suggest that all of the parties wanted to exploit Bonin's life story for money. However, desire and intent, with nothing more, do not create a conflict of interest. In addition, the Court finds highly persuasive the fact that as of the...