Frierson v. Woodford, 04-99002.

• Decision Date: 14 September 2006
• Docket Number: No. 04-99002.,04-99002.
• Citation: 463 F.3d 982
• Parties: Lavell FRIERSON, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

463 F.3d 982

Lavell FRIERSON, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellee.

No. 04-99002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2006.

Filed September 14, 2006.

Gwen Freeman, Knapp, Petersen & Clarke, Glendale, CA, Edward A. Rucker, Santa Monica, CA, for the petitioner-appellant.

Steven D. Matthews, Supervising Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. CV-92-06251-DDP.

Before BETTY B. FLETCHER, BARRY G. SILVERMAN, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

Lavell Frierson appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging a California jury's special circumstances findings and death penalty verdict for his convictions for assault with a deadly weapon, robbery kidnaping for the purposes of robbery, and first degree felony murder. In this opinion, we conclude that trial counsel failed to investigate and present important mitigation evidence at the penalty phase of the third trial. Had counsel's investigation been adequate, the sentencing jury could have heard evidence that Frierson suffered from multiple childhood head trauma and possible organic brain dysfunction, borderline mental retardation and a learning disability, a history of chronic substance abuse, and an emotional disorder. We also conclude that counsel's performance was deficient when he failed to review juvenile court records and to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial. There is a reasonable probability that, had the jury been able to consider this evidence, the outcome of the penalty proceedings would have been different. We therefore reverse the district court's judgment denying habeas relief with respect to the penalty phase of the trial.¹

I. Background

This case arises from Frierson's 1978 kidnaping and robbery of Edgardo Kramer and Guillermo Bulnes, and his execution-style murder of Kramer. The California Supreme Court described the events leading up to the shootings as follows:

On January 3, 1978, Kramer and Bulnes, two Peruvian airline employees, drove to the Holly Aire Motel in Inglewood to visit a woman named Chris. Bulnes knocked on the door to room 18 and told the young woman who responded—later identified as Zondre Wooley—that he was looking for Chris. . . . Wooley later said that Chris would arrive shortly. Bulnes and Kramer then sat in Bulnes's car parked across the street from the motel. Soon thereafter, [Frierson] approached the car and asked if they were waiting for Chris. When Bulnes said that they were, [Frierson] drew a gun and pointed it at Bulnes. He entered the back seat behind the two men, and ordered Bulnes to lock the door, close the windows, start the car and begin driving.

During the ride, [Frierson] demanded and obtained property from both victims.. . . After traveling a few blocks at [Frierson]'s direction, [Frierson] ordered Bulnes to park the car. He then shot both Bulnes and Kramer in the backs of their heads. Kramer was killed. The bullet directed at Bulnes hit him above the ear but did not penetrate his skull. He was able to grapple with [Frierson] and disarm him. Bulnes pointed the gun at [Frierson] and left the car.

After running a few steps, Bulnes fell to the ground. [Frierson] grabbed him around the neck and tried to retrieve the weapon. During the ensuing struggle, Bulnes emptied the gun's chamber by firing shots into the ground and threw the gun away. When [Frierson] released his grip, Bulnes ran to a nearby street, flagged down a passing motorist, and was driven to a hospital.

At the retrial, Bulnes . . . positively identified[Frierson] as the assailant. He had observed nothing suggesting [that Frierson] was intoxicated . . . . [Frierson] and Wooley were arrested a few hours after the crime in room 18 at Holly Aire Motel. Distinctive watches owned by the victims, [Frierson's] bloody clothing, and other incriminating evidence was found in the motel room.

An inmate who had been at the county jail when [Frierson] was initially apprehended testified that [Frierson] had recounted the entire crime to him, admitting that he had robbed and shot the two victims.

People v. Frierson, 53 Cal.3d 730, 280 Cal. Rptr. 440, 808 P.2d 1197, 1200 (1991) (Frierson III).

Frierson I

In February 1978, Frierson was charged with murder, robbery, kidnaping for purposes of robbery, and assault with a deadly weapon. The amended information alleged two special circumstances under the 1977 California death penalty law: that the murder was wilful, deliberate and premeditated, and that the murder was physically committed by Frierson during the course of both a robbery and kidnaping.² The jury found Frierson guilty of the crimes charged and death-eligible after finding both special circumstances true beyond a reasonable doubt. Frierson was sentenced to death. People v. Frierson, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, 592 (1979) (Frierson I).

On direct review, the California Supreme Court reversed the conviction, special circumstances findings, and death sentence. Id. at 591. The court held that Frierson's counsel was ineffective for failing to investigate, prepare, and present a diminished capacity defense. As the court explained, counsel failed to seek and retain an expert to evaluate the effects of Frierson's PCP drug use on his physical and mental condition and on his mental capacity. Id. at 598-99. The court emphasized that counsel's failure was critical because the defense of diminished capacity was the only one available to Frierson at the guilt phase of the trial. Id. at 599. The court also found counsel ineffective for failing to call any mitigating witnesses at the penalty phase. Id. at 600.

Frierson II

At the second trial in 1980, Frierson's court-appointed counsel refused Frierson's request to present evidence of diminished capacity at the guilt phase of the trial, and instead chose to present that evidence at the penalty phase. People v. Frierson, 39 Cal.3d 803, 218 Cal.Rptr. 73, 705 P.2d 396, 396-97 (1985) (Frierson II). After the prosecution completed its case-in-chief, defense counsel rested without calling any witnesses or presenting any defense. Id. at 398. At the penalty phase, however, defense counsel called a number of witnesses whose testimony suggested that at the time Frierson committed the crime, his mental state had been affected by his use of PCP.

Dr. Ronald Siegel, a psychologist and psychopharmacologist, testified that he had examined Frierson on two separate occasions in 1980 and had compiled an extensive drug history report. Dr. Siegel initially concluded that Frierson "was severely intoxicated with PCP" during the crime because of an "acute ingestion" of PCP on that day "as well as chronic use over a long period of time." Id. at 398. After reading Bulnes's eyewitness testimony, Dr. Siegel altered his conclusion, testifying that Frierson did not appear to be "acutely" intoxicated at the time of the crime. Dr. Siegel maintained, nonetheless, his belief that as a chronic PCP user, Frierson was severely intoxicated at the time the crime took place even though he did not show outward physiological signs of intoxication. Dr. Siegel specifically declined to opine on Frierson's mental state at the time of the offense.

Dr. Marvin Gillick, a forensic psychiatrist, testified that PCP intoxication during the crime prevented Frierson from deliberating, premeditating, and meaningfully reflecting on his actions. Dr. Gillick concluded that although Frierson had the mental capacity to form the intent to rob and kidnap the victims, his PCP intoxication "`[s]ubstantially impaired [his] capacity to form and harbor the criminal intent necessary for first degree murder,' i.e., deliberation and premeditation." Id. at 398.

The jury found Frierson guilty of the charged offenses, found him death-eligible, and returned a verdict of death. Id. at 399. The California Supreme Court affirmed the conviction but reversed the special circumstances findings and penalty, holding that the trial court erred when it concluded that counsel could properly refuse Frierson's clearly expressed desire to present a diminished capacity defense at the special circumstances phase of the trial, rather than at the penalty phase.³ Id. at 403.

Frierson III

At the third trial in 1986, Frierson was represented by Arnold Lieman, who presented a diminished capacity defense at the special circumstances phase of the trial. Frierson III, 280 Cal.Rptr. 440, 808 P.2d at 1200. Dr. Gillick again testified that, at the time of the crime, Frierson "was able to form the specific intent to commit robbery and to harbor malice but, due to mental impairment caused by the ingestion of PCP, was unable to `form the specific intent to commit first degree murder,'" meaning, to "`deliberate, premeditate, and maturely and meaningfully reflect.'" Id. Narcotics consultant Carl Trout testified that it is difficult to observe whether a person is under the influence of PCP. Id. Several of Frierson's friends and family members bolstered the expert testimony by testifying that, at the time of the crime, Frierson's mental state was affected by his use of drugs, including PCP and alcohol. Id.

The prosecution's case-in-chief consisted of the same facts as were presented in Frierson I and II. Bulnes, the surviving victim, positively identified Frierson as the assailant. Investigating police officers testified to the discovery of incriminating evidence at the hotel room where Frierson and Wooley were found. Jimmy Walker, an inmate who had been at the county jail when Frierson was initially apprehended, testified that Frierson recounted the entire...