In re Hardy

• Decision Date: 26 July 2007
• Docket Number: No. S093694.,No. S022153.,S022153.,S093694.
• Citation: 63 Cal.Rptr.3d 845,41 Cal.4th 977,163 P.3d 853
• Court: California Supreme Court
• Parties: In re James Edward HARDY on Habeas Corpus.

63 Cal.Rptr.3d 845

41 Cal.4th 977

163 P.3d 853

In re James Edward HARDY on Habeas Corpus.

No. S022153.

No. S093694.

Supreme Court of California.

July 26, 2007.

Fern M. Laethem, Lynne S. Coffin and Michael J. Hersek, State Public Defenders, and Philip M. Brooks, Robin Kallman and Peter Silten, Deputy State Public Defenders, for Petitioner James Edward Hardy.

Daniel E. Lungren, Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, George Williamson, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack, and Pamela C. Hamanaka, Assistant Attorneys General, Keith H. Borjon, Susan Lee Frierson, William T. Harter, Robert

S. Henry, Robert F. Katz, Sharlene A. Honnaka and Roy C. Preminger, Deputy Attorneys General, for Respondent State of California.

WERDEGAR, J.

I. Introduction

Petitioner James Edward Hardy was convicted in 1983, along with codefendant Mark Anthony Reilly, of the first degree murders of Nancy Morgan and her young son, Mitchell Morgan, and of conspiracy to commit murder to collect life insurance proceeds. (Pen.Code, §§ 187, 182.)¹ The jury also sustained six special-circumstance allegations against both Hardy and Reilly, finding as to each murder that it was committed for financial gain, that the defendants committed a multiple murder and that they killed while lying in wait. (§ 190.2, subd. (a)(1), (3), (15).) The jury set the penalty for both defendants at death. On appeal, this court affirmed, striking one superfluous multiple-murder special circumstance. (People v. Hardy (1992) 2 Cal.4th 86, 5 Cal.Rptr.2d 796, 825 P.2d 781.)

Our prior opinion in this matter was not the end of the legal road for petitioner Hardy. After the United States Supreme Court denied his petition for a writ of certiorari (Hardy v. California (1992) 506 U.S. 987, 113 S.Ct. 498, 121 L.Ed.2d 435), he filed his first petition for a writ of habeas corpus with this court (In re Hardy, S022153 (Hardy I)). Because the petition alleged facts sufficient to demonstrate a prima facie case for relief from the penalty judgment (People v. Duvall (1995) 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252), we issued an order directing respondent to show cause "why petitioner is not entitled to reversal of the penalty judgment because his trial attorney rendered constitutionally ineffective assistance of counsel by failing to call, at the penalty phase of the trial, available witnesses who would have presented evidence of mitigating circumstances." (Italics added.) After receiving briefing, we directed a referee to hold a hearing and take evidence on two disputed questions of fact. After receiving additional briefing, we amended the order of reference to add an additional question for the referee's consideration.

Some delay ensued, but the referee eventually held a hearing at which several witnesses testified. The referee filed his report with this court in 1999. Petitioner then filed a second petition for a writ of habeas corpus based on facts adduced at the evidentiary hearing. (In re Hardy, S093694 (Hardy II).) This new petition alleged facts sufficient to demonstrate a prima facie case for relief from the guilt judgment. Accordingly, we issued a second order to show cause on two interrelated issues. Our order stated: "The petition for writ of habeas corpus, filed December 13, 2000, has been read and considered. The Director of Corrections is ordered to show cause before this court at its courtroom, when the proceeding is ordered on calendar, why petitioner is not entitled to reversal of his guilt judgment because [1] he is innocent of the capital crimes of which he was convicted, [in that] a third party named Calvin Boyd committed the murders, and [2 that] petitioner's trial counsel rendered constitutionally ineffective assistance of counsel by failing to present evidence demonstrating petitioner's innocence." (Italics added.)

We consolidated Hardy I and Hardy II on April 18, 2007, and now reach the following conclusions: (1) Because petitioner's allegations in Hardy II are based on facts found by the referee as a result of the evidentiary hearing in Hardy I, a second hearing is unnecessary; (2) petitioner's allegations, to the extent they were sustained by the referee, fail to demonstrate petitioner is actually innocent of the crimes for which he was convicted because they do not undermine the prosecution's entire case or point unerringly to innocence; (3) petitioner's allegations that a third party named Calvin Boyd committed the murders, largely sustained by the referee, demonstrate his trial counsel's representation was deficient because he failed, without a supportable tactical reason, to investigate reasonably available evidence of third party culpability; (4) such deficient representation nevertheless does not require reversal of the guilt judgment because counsel's failure to investigate did not undermine the prosecution's theory that petitioner conspired to commit the murders, and such conspiracy rendered petitioner liable for first degree murder irrespective of the possibility that a third party actually killed the victims; (5) the allegations of third party culpability, as sustained by the referee, require we vacate the penalty judgment because, had the jury entertained a reasonable doubt that petitioner was the actual killer and concluded he was merely a coconspirator, there is a reasonable probability it would have returned a sentence of life instead of death; and (6) in light of the latter conclusion, we discharge the order to show cause in Hardy I and dismiss that petition as moot.

II. Background²

Clifford and Nancy Morgan lived in Van Nuys and had a son, Mitchell, who was eight years old at the time of the murders. Clifford Morgan (Morgan) devised a plan to kill his wife and son in order to collect on some unusually large life insurance policies he had purchased. He enlisted the assistance of Reilly, a much younger co-worker over whom he had acquired some influence. At this time, Reilly and petitioner, as well as many of the witnesses and coconspirators in this case, lived in the same apartment complex on Vose Street in Van Nuys. The depth and breadth of the ensuing conspiracy to kill the victims need not be recounted here in full; suffice it to say, Reilly agreed to Morgan's plan and sought a partner for the planned murders. Reilly's attempt to hire a kickboxer named Marc Costello to kill the victims came to naught. Reilly then turned to fellow Vose Street resident Calvin Boyd³ and his friend Marcus.⁴ Many of the residents of the Vose Street apartment complex were acquainted with Boyd, a key player in petitioner's present collateral challenge to his convictions, who, unknown to them, was at the time a fugitive from justice. After much preliminary involvement in the conspiracy, Boyd (according to his trial testimony) declined to participate in the murders of Nancy and Mitchell Morgan due to Reilly's inability to pay him any money or cocaine in advance.

Reilly then turned to petitioner as a third option, believing he could convince him to commit the murders. A few weeks before the murders, Reilly told his friend Joe Dempsey that petitioner might agree to assist in the murders. Sometime later, Reilly told his friend Michael Mitchell that petitioner had agreed to help him.

Debbie Sportsman provided critical evidence against Reilly and about the conspiracy in general. She met Reilly in April 1981 and began an intimate relationship with him. While having dinner with Sportsman and her parents, Reilly mentioned that Morgan wanted to have his wife killed in order to collect on some insurance policies. Sportsman's mother, thought this was "just talk." As Sportsman later found out, however, Reilly was quite serious. He told her he had agreed to help Morgan find someone to kill his wife. In return, Morgan had agreed to allow Reilly to live in Morgan's home and to manage a bar that Morgan intended to open.

In May 1981, Morgan moved to Carson City, Nevada, ostensibly for business reasons, but more probably to establish an alibi. Sometime in the night of May 20-21, 1981, two persons alleged to be petitioner and Reilly went to Morgan's Van Nuys home, entered with a key provided by Morgan, cut the chain lock with bolt cutters and went to the back bedroom where Nancy slept. Because her husband was away from home, their son, Mitchell, was sleeping in his mother's bedroom. The assailants stabbed Nancy and Mitchell Morgan to death. Evidence showed Nancy was stabbed 45 times and her son 21 times, including multiple wounds on his neck. Police found a pillow soaked in blood with several puncture marks, indicating the assailants had stabbed the victims through the pillow. Experts testified that physical evidence suggested at least two persons were responsible for the slayings. The estimated time of death was between 3:30 and 5:30 a.m.

The conspiracy began to unravel almost immediately. After the murders, Reilly admitted his guilt to Sportsman and made numerous other incriminating admissions to her, including that victim Nancy Morgan had said "Please don't kill me," that more than one perpetrator was involved, that bolt cutters had been used to cut the chain lock on the door (a fact not made public by the police) and that a fish knife had been used in the killings.

Boyd testified that shortly after the murders, when he and Reilly were together in the apartment's laundry room, Reilly admitted that he and petitioner Hardy were the killers. Boyd also testified that Reilly showed him some boltcutters he had recently purchased.

Michael Mitchell, Reilly's roommate, testified that he came home from a baseball game the night of the murders and went to sleep sometime after 11:00 p.m. At that time, no one else was in the apartment. He got up around midnight and saw petitioner, Reilly, Colette Mitchell (apparently no relation) and possibly a neighbor, Steven Rice, in the apartment. Later...