Lord v. Wood

• Decision Date: 14 July 1999
• Docket Number: No. 97-99026,No. 97-99025,97-99025,97-99026
• Citation: 184 F.3d 1083
• Parties: (9th Cir. 1999) BRIAN KEITH LORD,Petitioner-Appellee, v. TANA WOOD, Superintendent, Respondent-Appellant. BRIAN KEITH LORD, Petitioner-Appellant, v. TANA WOOD, Superintendent, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1083

184 F.3d 1083 (9th Cir. 1999)

BRIAN KEITH LORD,Petitioner-Appellee, v. TANA WOOD, Superintendent, Respondent-Appellant.

BRIAN KEITH LORD, Petitioner-Appellant, v. TANA WOOD, Superintendent, Respondent-Appellee.

No. 97-99025 No. 97-99026

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 19, 1998

Filed July 14, 1999

John J. Samson, Assistant Attorney General, Olympia, Washington, for the respondent-appellant-cross-appellee.

Peter A. Camiel, Mair, Camiel & Kovach, Seattle, Washington, for the petitioner-appellee-cross-appellant.

Sheryl G. McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for the petitioner-appellee-cross-appellant.

Appeals from the United States District Courtfor the Western District of Washington Barbara J. Rothstein, Chief Judge, Presiding. D.C. No. CV-94-00464-R

Before: Browning, Kozinski and Thomas G. Nelson, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge:

In this capital case we consider whether counsel's failure to call, or personally interview, three witnesses who claim to have seen the victim alive after petitioner is supposed to have killed her, constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

Background

On the afternoon of September 16, 1986, 16-year old Tracy Parker went out riding a horse belonging to her neighbors Wayne and Sharon Frye. Tracy visited some friends early that evening and, as she was leaving, informed one of them that she planned to return the horse to the Fryes' stable and then "go straight home." At about 8 p.m., Tracy called a friend from the Fryes' residence. When Sharon Frye came home between 8:20 and 8:30, she found the house empty.

Brian Keith Lord was a carpenter who was helping the Fryes remodel their house. The Fryes had told Lord where they kept an extra set of keys, so he could enter the house as he pleased. Lord had met Tracy through the Fryes and had on occasion given her rides home in his brother Kirk's pickup. At 7:44 on the evening of Tracy's disappearance, Lord called his apartment from the Fryes' residence to tell his girlfriend he would be late for a dinner party they were hosting that evening.

At about 8:45, Lord arrived at Kirk's house driving his brother's blue pickup. Don and Radwyn Carroll, Kirk's inlaws, were there when Lord pulled up. The Carrolls had returned from dinner at 8:30. Don testified that Lord drove up "pretty fast" to the workshop next to the house, and that the truck was "smoking and steaming." Don also noticed that Lord was shirtless even though it was only 58 degrees outside. From inside the house, Don saw Lord wash out the back of the pickup with a hose and remove from it an orange or beige blanket. When Don came out to speak to him, Lord said he was building a stereo cabinet in Kirk's workshop. Don asked to see it, but Lord said that he wanted his brother to see it before anyone else. Don did not enter the workshop that evening. Kirk arrived home at about 9 o'clock and talked to Lord in front of the workshop for a while, but Lord did not show him the cabinet and Kirk did not enter the workshop.

Lord arrived at his apartment at 10:15, several hours late for the dinner party. He was to have brought a dining table he was making, but showed up empty-handed. Lord went to the bathroom soon after his arrival and stayed there for some time, prompting some of his guests to leave. When Lord emerged from the bathroom, he acted somewhat strangely and two guests noticed that there was a fresh wound on his arm. Lord did not tell anyone where he had been that evening, but did say that he had been working late.

Tracy's clothing and a red towel were found near a dirt road during the weekend of September 20th, and an orange U-Haul blanket resembling the one Don Carroll had seen Lord remove from the truck turned up in a nearby construction area on September 22nd. Tracy's semi-nude body was discovered on September 30th, a fortnight after her disappearance. Lord was arrested that evening. The medical examiner subsequently determined that Tracy had been killed by a number of blows to the head from a blunt object. There was also evidence that she had been raped after being knocked unconscious.

The State's theory was that Lord offered Tracy a ride home from the Fryes' place sometime around 8 o'clock, but had taken her instead to Kirk's nearby home. No one was there when Lord and Tracy arrived a few minutes after 8, and Lord forced or lured Tracy into Kirk's workshop where he struck her several times about the head with a hammer or similar tool. He proceeded to rape her in his pickup, then drove off with her body in the back. According to the prosecution, all of this occurred before the Carrolls arrived at Kirk's home at 8:30. Before returning to Kirk's at 8:45, Lord dumped Tracy's body where it was subsequently found (about 3 miles from Kirk's home), and took off his bloodstained shirt.

The jury found Lord guilty of aggravated first-degree murder. After a special sentencing hearing (where the State was permitted to cross-examine Lord after his allocution), the jury determined that there were no mitigating circumstances sufficient to warrant leniency and, based on that determination, the judge sentenced Lord to death.

The Washington Supreme Court affirmed and the U.S. Supreme Court denied certiorari. After exhausting his state remedies by filing an unsuccessful personal restraint petition with the Washington Supreme Court, Lord filed this federal habeas petition. The district court granted the petition as to Lord's death sentence because the state trial court had inappropriately permitted Lord to be cross-examined after his allocution, which ruling the State now appeals. Lord cross-appeals the district court's denial of his three dozen guilt-phase challenges, but we need consider only one.

I

The right to counsel guaranteed to criminal defendants by the Sixth Amendment "is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); see also Strickland, 466 U.S. at 686. The Supreme Court in Strickland set the bar high for ineffective assistance claims. Petitioner must first establish that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Recognizing that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," the Court stated: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Such an assessment is highly deferential to defense counsel's decisions at trial, with the attorney presumed to have rendered professionally adequate assistance. See id. at 690. A petitioner may overcome this presumption only by demonstrating that "the identified acts or omissions were outside the wide range of professionally competent assistance," id., meaning that the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case, see id. at 689.

Even if petitioner shows that his lawyer's performance was deficient, he must still prove that this prejudiced his defense. See id. at 687, 693. Though it is not enough for petitioner to establish merely that "the errors had some conceivable effect on the outcome of the proceeding," he is not required to "show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. To prove prejudice, petitioner must demonstrate only that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," with a reasonable probability defined as "a probability sufficient to undermine confidence in the outcome." Id. at 694.

Lord's claim of ineffective assistance turns on counsel's failure to call to the stand three witnesses who, if believed, would have cleared Lord of the murder. However, it is impossible to judge any one piece of evidence without understanding the rest of the case. Omission of an item of proof may seem foolish until one understands the tradeoffs counsel would have had to make to include it. Did the item contradict other defense evidence? Was it so inherently implausible as to undermine defense counsel's credibility? Such questions cannot be answered without a thorough understanding of the case as presented to the jury. We therefore describe what happened at trial before considering the three absent witnesses.

II

The Case Against Lord

Physical Evidence

To tie Lord to the murder, the State presented physical evidence taken from Tracy's body, her clothing, the red towel, the orange blanket and Kirk Lord's pickup and workshop. The State linked fragments of wood and paint chips, washed sand, sawdust and fibers found on Tracy's body and clothing to similar items found in the pickup and the workshop. Type O human blood, Tracy's blood type, was found on her clothing, the towel and the orange blanket. The bloodstain on the blanket contained an enzyme found in only 9% of the caucasian population, but which was present in Tracy's blood. The State also introduced a matchbook taken from the pickup that was similar to one found under Tracy's clothing.

A coarse body hair that could have come from Lord was found on the blanket, as was a head hair sharing the characteristics of Tracy's hair. Another hair resembling that found on the hairbrush of Lord's girlfriend was discovered on one piece of Tracy's clothing. Coarse body hairs that were similar to both Lord's and Tracy's hair were on the red towel.

Most of the State's blood-related evidence came from Kirk Lord's...