In re Scott

• Decision Date: 27 January 2003
• Docket Number: No. S059739.,S059739.
• Court: California Supreme Court
• Parties: In re James Robert SCOTT on Habeas Corpus.

129 Cal.Rptr.2d 605

29 Cal.4th 783

61 P.3d 402

In re James Robert SCOTT on Habeas Corpus.

No. S059739.

Supreme Court of California.

January 27, 2003.

Rehearing Denied March 19, 2003.

John W. Clark, San Jose, under appointment by the Supreme Court, for Petitioner James Robert Scott.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, Steven D. Matthews, Susan Lee Frierson, Sharlene A. Honnaka, Karen Bissonnette and Brad D. Levenson, Deputy Attorneys General, for Respondent State of California.

CHIN, J.

Petitioner James Robert Scott seeks relief on habeas corpus from the judgment of death entered against him in Los Angeles County Superior Court, Case No. A747321. We affirmed that judgment on direct appeal. (People v. Scott (1997) 15 Cal.4th 1188, 65 Cal.Rptr.2d 240, 939 P.2d 354 (Scott).) In this matter, we issued an order to show cause based on allegations that (1) trial counsel failed to investigate and to adequately present a mental defense at the guilt phase, (2) trial counsel failed to investigate and to adequately present mitigating evidence at the penalty phase, and (3) these failures rendered counsel's advice to waive a jury uninformed and hence ineffective. We appointed the Honorable Howard J. Schwab, Judge of the Los Angeles Superior Court, as our referee, and directed him to take evidence and make findings of fact on specified questions. Judge Schwab has done so and has issued a report responding to the questions.

We adopt the referee's factual findings. In accordance with those findings, we also conclude petitioner has failed to carry his burden of establishing ineffective assistance of counsel. Accordingly, we discharge the order to show cause and, in a separate order, deny the petition for writ of habeas corpus.

I. Facts

A. The Underlying Judgment

Petitioner assaulted and raped Wanda Jensen in her home, then set her on fire. In 1986, before she died, he pleaded guilty to her rape and attempted murder. In 1988, after she died, he was charged with her murder. He waived a jury trial. After a court trial in 1989, the court convicted him of first degree murder, found true special circumstance allegations of rape and burglary murder, and found that he intended to kill Jensen and used a deadly weapon. It then imposed the death penalty.

We described the underlying facts in our opinion in the direct appeal. (Scott, supra, 15 Cal.4th at pp. 1199-1200, 65 Cal.Rptr.2d 240, 939 P.2d 354.) Around 2:00 a.m., on April 22, 1986, petitioner entered Jensen's apartment in Palmdale, placed a screwdriver against her side, threatened to harm her five-year-old daughter, hit her with a baseball bat, raped her, beat and choked her into unconsciousness, set her on fire, and left. Jensen's daughter rescued her, but she died of her burns on February 25, 1987. Petitioner confessed to the crimes in two statements to separate investigators. Glenn "Rerun" Johnson, Jr., testified that petitioner came to his home shortly before the crime. He gave petitioner some socks and the two smoked cocaine. Johnson denied it at trial, but he had previously said that petitioner had asked him for a screwdriver and gloves, and he gave him a screwdriver but had no gloves. Petitioner told the police that before the crime, he purchased some cocaine and "did a couple lines of coke."

At times during his two confessions, petitioner claimed the persona of "Tony." At one point in the first confession, petitioner "glared at the investigator and said `he was now Tony and that Tony had taken charge of James' body, and he said he had to destroy the girl because she was a shit bomb. . ..' Before the second confession, [petitioner] signed the waiver card with the name, `Tony Adman.' When questioned about the signature, he changed it to his true name. He told both investigators that he was `Tony" and that `James was a wimp.'" (Scott, supra, 15 Cal.4th at p. 1199, 65 Cal.Rptr.2d 240, 939 P.2d 354.)

Petitioner presented a defense that Jensen had received negligent medical treatment and would not have died had the treatment been competent.

At the penalty phase, the prosecution presented evidence that in 1983, petitioner assaulted Paula H. with a knife in her house and said he was going to rape and kill her. A struggle ensued in which petitioner cut and bit her, after which she escaped. For this incident, he pleaded guilty to assault with a deadly weapon. Three weeks before the assault on Jensen, petitioner assaulted Violet H. in her home with a knife and his fists, raped her, and choked her into unconsciousness. For this incident, at the same time that he pleaded guilty to Jensen's rape and attempted murder, he pleaded guilty to rape with use of a knife and infliction of great bodily injury.

"The defense presented some of Paula H.'s testimony at the 1983 preliminary hearing of that prosecution and a psychological evaluation of [petitioner] prepared in conjunction with that prosecution." (Scott, supra, 15 Cal.4th at p. 1200, 65 Cal.Rptr.2d 240, 939 P.2d 354.) It presented no other mitigating evidence, although trial counsel argued in mitigation the medical malpractice evidence he presented at the guilt phase.

B. The Reference Hearing

1. Background

We asked the referee to take evidence and make findings of fact on these questions.

"1. What actions did petitioner's trial counsel take to investigate a possible mental defense at the guilt phase? What were the results of that investigation? What additional evidence supporting a mental defense, if any, could petitioner have presented at the guilt phase? What investigative steps, if any, would have led to this additional evidence? How credible was this additional evidence? What circumstances, if any, weighed against the investigation or presentation of this additional evidence? What evidence rebutting this additional evidence reasonably would have been available to the prosecution?

"2. What actions did petitioner's trial counsel take to investigate potential evidence in mitigation at the penalty phase? What were the results of that investigation? What additional mitigating evidence, if any, could petitioner have presented at the penalty phase? What investigative steps, if any, would have led to this additional evidence? How credible was this additional evidence? What circumstances, if any, weighed against the investigation or presentation of this additional evidence? What evidence rebutting this additional evidence reasonably would have been available to the prosecution?

"3. Did petitioner himself request the curtailment of or do anything to hinder or prevent the investigation or presentation of evidence supporting a mental defense at the guilt phase or in mitigation at the penalty phase? If so, what did he do or request?

"4. Why did trial counsel advise petitioner to waive a jury? Did any failure by trial counsel to investigate a mental defense or mitigating evidence render counsel's advice to waive a jury uninformed? Would any additional investigation have affected the advice to waive a jury and, if so, what and how?"

At the evidentiary hearing, petitioner presented the testimony of his trial counsel, William Clark; three mental health experts; several friends and family members; Richard Vargas, who had been with petitioner the evening of the crime; and an attorney. The prosecution presented the testimony of one mental health expert and Burrell Ford, who had lived with petitioner's mother for three years. After receiving briefing, the referee issued a detailed report. At the beginning, he summarized his findings: "The referee will find that petitioner's trial counsel's investigation of potential mental defenses and mitigating penalty phase evidence was minimal. However, the referee also will find that petitioner in the habeas corpus evidentiary hearing did not proffer any significant credible evidence that would have been discovered if there had been a more thorough investigation by trial counsel. Further, the referee will find that petitioner himself requested the curtailment of the investigation and presentation of evidence by requesting not to have his family involved. The referee also will find that trial counsel's advice to petitioner to waive jury was based upon his concerns about the nature of the jury panels in the Antelope Valley (where the case would be tried), his desire to try the case before a certain highly skilled jurist, and his belief that a defense of intervening medical malpractice would be best presented before that particular judge rather than before a jury."

The referee then went into detail. He discussed each witness's testimony and made credibility determinations, then answered our specific questions. Because we find the report reliable and helpful and, as discussed below, we adopt its credibility determinations, we review it in detail, especially the testimony the referee found credible.¹

2. The Witnesses' Testimony and Their Credibility

a. Trial Counsel

The referee found trial counsel, Clark, to be "totally credible." Clark was first appointed to represent petitioner in 1986, before Jensen died, regarding the Jensen case and the crimes involving Violet H. "He read the felony complaints, the initial police reports and petitioner's record. [¶] The initial reports stated that petitioner had taken on the persona of an individual named `Tony.' Mr. Clark had his client checked for competency to stand trial. He was evaluated by Dr. Kaushal Sharma and Dr. Michael Maloney who found him competent. Based upon the doctors' reports, Mr. Clark `largely' determined he would not raise a mental competency issue. As Ms. Jensen at the time was taking a `very bad turn,' Mr. Clark decided it would be best to waive a preliminary hearing and petitioner pled guilty to the attempted murder and rape of Ms. Jensen and the rape of [Violet H.] in hopes that...