Cain v. Chappell
| Decision Date | 13 September 2017 |
| Docket Number | No. 13-99008.,13-99008. |
| Parties | Tracy Dearl CAIN, Petitioner–Appellant, v. Kevin CHAPPELL, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jonathan C. Aminoff (argued) and Mark R. Drozdowski, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.
Kim Aarons (argued) and A. Scott Hayward, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.
Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, and Consuelo M. Callahan, Circuit Judges.
In this death penalty case, Petitioner Tracy Cain (Cain) challenges the district court's denial of his federal habeas petition. Cain was convicted and sentenced to death for the murder of a couple, William and Modena Galloway, who resided in a home next to Cain's father. The district court denied Cain's habeas petition, but granted a certificate of appealability (COA) on Cain's claim that he did not receive adequate notice of the attempted rape special circumstance. We affirm the district court's denial of Cain's habeas petition.
In a criminal complaint, Cain was charged with the first-degree murders of the Galloways. The complaint further alleged special circumstances premised on multiple murder, rape or attempted rape, robbery or attempted robbery, and burglary in connection with Mrs. Galloway's murder. With respect to the rape special circumstance, Special Allegation No. 4 provided:
It is further alleged that the murder of Modena Shores Galloway was committed by defendant, Tracy Dearl Cain, while the defendant was engaged in the commission or attempted commission of the crime of rape, in violation of Penal Code section 261, within the meaning of Penal Code section 190.2(a)(17).
The complaint also alleged special circumstances based on multiple murder, burglary, and robbery or attempted robbery associated with Mr. Galloway's murder. Cain was separately charged with the offenses of rape, burglary, and robbery.
A second amended information alleged the same basic offenses and special circumstances, albeit with some additional details. Unlike the original criminal complaint, the amended information did not specifically allege attempted rape as a special circumstance. Instead, Special Allegation 6 stated:
It is further alleged that the murder of Modena Shores Galloway was committed by defendant, Tracy D. Cain, while the defendant was engaged in the commission of rape in violation of Penal Code Section 261, within the meaning of Penal Code Section 190.2(a)(17).
Cain did not raise any pre-trial objections to the allegations in the amended information addressing the attempted rape special circumstance. See People v. Cain , 10 Cal.4th 1, 40 Cal.Rptr.2d 481, 892 P.2d 1224, 1248 (1995) (In Bank) () (emphasis added).
The evidence at trial established that the Galloways lived next door to Cain's father. See id. , 40 Cal.Rptr.2d 481, 892 P.2d at 1233. Mr. Galloway, who was sixty-three years old, suffered from poor health and a back injury, and "had a habit of keeping large amounts of cash in his house." Id.
During the relevant period, Cain's father went on a trip, leaving Cain and his younger brother, Val, at the residence. See id., 40 Cal.Rptr.2d 481, 892 P.2d at 1234. On the night of the Galloways' murders, Cain and Val had a party at their father's house. See id. Ulysses Anthony Mendoza (Mendoza), Floyd Clements (Clements), David Cerda (Cerda), Rick Albis (Albis), and Kevin Walker (Walker) attended the party. See id.
Mendoza testified that Cain was agitated and upset during the party. Cain threatened Mendoza and others when he was unable to find ten dollars that was missing, and kicked a hole in a door because he was angry with his brother.
Mendoza related that, at approximately 11:00 pm, Cain asked Mendoza to accompany him to the 7–Eleven to purchase beer. As they were walking to the 7–Eleven, Cain asked Mendoza if he "wanted to help him burglarize or rob that house next door to his house." According to Mendoza, Cain stated that he wanted to burglarize the residence "so he can get thousands." Mendoza refused because he "[d]idn't have the nerve."
At the 7–Eleven, Mendoza and Cain met Richard Willis (Willis) and Willis' friend, Shawn. Cain asked them if they had any cocaine. While riding in Shawn's vehicle, Cain made a "strangling motion" to Mendoza, after which Mendoza asked to be dropped off for fear that "something foolish would happen." Mendoza returned to the Cain residence.
When Cain arrived at the residence, he "called [Mendoza] a pussy ... [b]ecause [Mendoza] wouldn't help him." Mendoza then saw Cain and Cerda leave the residence. Cerda returned to the Cain residence alone. At some point, Val asked Cerda to check on his brother. After a few seconds or minutes, Cerda returned without Cain. When Cain eventually returned to the residence, he "had blood on his hat, inner part of his hat, on his cheek, on his right foot, [and] on his pant leg." Cain stated that "he had thousands" and Mendoza recalled that Cain had "a lot of money in his left palm." Cain also remarked that he "blipped somebody."
The next morning, Mendoza observed Cain sleeping in a recliner in the living room. Mendoza noticed that Cain had $500 next to him on a table. Mendoza also observed that Cain's "knuckles were torn up." Later in the day, Mendoza and Cain went shopping. Cain paid cash for new basketball shoes, a hat, and a car stereo. According to Mendoza, Val asked Cain if he had killed someone and Cain responded, "That's on them. ..."
The following day, Mendoza attended a barbecue at the Cain residence. During the barbecue, Cain threatened Mendoza if he refused to let Cain use his truck. Mendoza noticed that Cain had placed a box in the truck containing rags, sticks, and wires. Cain subsequently disposed of the box near the beach.
Dr. Frederick Lovell, Chief Medical Examiner for Ventura County, performed an autopsy on Mr. Galloway's body. Dr. Lovell observed numerous bruises on Mr. Galloway's body and "hemorrhage over the entire left side of [his] head from front to back on bone, and ... hemorrhage in and around the brain underneath." Dr. Lovell stated that there was a minimum of thirteen separate blows on Mr. Galloway's body and that Mr. Galloway died from trauma to his brain
.1
Dr. O'Halloran observed Mrs. Galloway "lying on her back on the bed ... with her feet and legs extending over the side of the bed." According to Dr. O'Halloran, Mrs. Galloway's "legs were spread wide apart, exposing her genital area; and she was nude from the waist down." There was also "a pillow lying over her head" and "blood splatters on the wall." "There was moist fluid coming out of her vaginal area, and ... a streak of brownish-red material that appeared to be blood coming from or coming from close to her vaginal area."
During Mrs. Galloway's autopsy, Dr. O'Halloran "surgically removed the vagina and examined it" for injuries. Dr. O'Halloran discovered "a one centimeter long tear ... inside the vaginal opening. ..." Due to the lack of hemorrhage, Dr. O'Halloran opined that he may have caused the tear during his examination. Dr. O'Halloran also noted that the absence of injuries did not preclude a finding that Mrs. Galloway was raped.
Edwin Jones (Jones), a criminalist, testified as a hair expert. Jones determined that fifteen hairs found in Mrs. Galloway's panties, pajama bottom, slipper socks, and pajama top were microscopically similar to Cain's hair samples. Jones eliminated Mendoza, Cerda, and Clements as sources of the pubic hairs found on Mrs. Galloway's body. Jones also performed a chemical analysis of enzymes in the hair samples and determined that he could not eliminate Cain.
Dr. Bruce Woodling testified as an expert on sexual assault. Dr. Woodling related that he had examined approximately 2,000 sexual assault victims. After examining Mrs. Galloway, Dr. Woodling concluded that Dr. O'Hallaron's testimony that he may have caused the vaginal tear was not a "likely explanation." Dr. Woodling stated that he had never observed a similar tear during removal and examination of the vagina
in the rape cases in which he participated. Dr. Woodling opined that the laceration was "a classic injury of a forced penile-type penetration ..."
Detective Billy Tatum of the Oxnard Police Department testified that he investigated the Galloway homicides. Detective Tatum spoke with Mendoza and did not observe any injuries on Mendoza's hands. Detective Tatum subsequently obtained an arrest warrant for Cain and interviewed Cain at the police station. The tape recorded interview was played to the jury.
During the taped interview, Cain initially stated that he remained at his residence on the night of the Galloways' murders, except to go to the store, and "stayed at home" the following day. Cain maintained that he found out about the Galloways' murders on the following Monday, when he returned home from work. Cain explained that the bruise on his shoulder
was from his girlfriend and the cuts on his fingers were from playing with his dog.
Cain eventually conceded that he went into the Galloways'...
To continue reading
Request your trial
-
Dickey v. Davis
...violent father who beat his children with an iron rod, was raped twice as a child, and suffered from mental illness); Cain v. Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite new mitigating evidence that the defendant was severely beaten and punished by his stepm......
-
Ross v. Davis
...Cal.Rptr.2d 544, 892 P.2d 1287. Indeed, these facts "inspire little sympathy." Andrews , 944 F.3d at 1100 ; see also Cain v. Chappell , 870 F.3d 1003, 1021 (9th Cir. 2017) ("[I]n light of the aggravating circumstances involving the brutal murders of a couple in their sixties, the thirteen b......
-
Catlin v. Davis
......Montiel v . Chappell , No. 1:96-CV-05412-LJO, 2014 WL 6686034, at *83-84 (E.D. Cal. Nov. 26, 2014). Furthermore, Petitioner has not made out a prima facie ...981; see People v . Castillo (1997) 16 Page 105 Cal.4th 1009, 1016 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v . Cain (1995) 10 Cal.4th 1, 35-36 [40 Cal.Rptr.2d 481, 892 P.2d 1224]), because the instruction on premeditation adequately informed the jury of the state ......
-
Kayer v. Ryan
...violent father who beat his children with an iron rod, was raped twice as a child, and suffered from mental illness); Cain v. Chappell , 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite new mitigating evidence that the defendant was severely beaten and punished by his step......