Silva v. Woodford, 99-99009.

• Decision Date: 01 February 2002
• Docket Number: No. 99-99009.,99-99009.
• Citation: 279 F.3d 825
• Parties: Benjamin Wai SILVA, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, San Quentin State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 825

Benjamin Wai SILVA, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, San Quentin State Prison, Respondent-Appellee.

No. 99-99009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2000.

Filed February 1, 2002.

Amended February 22, 2002.

COPYRIGHT MATERIAL OMITTED

Phillip A. Trevino, Michael J. Brennan, Beverly Hills, CA, for the petitioner-appellant.

Robert M. Foster, Deputy Attorney General, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Dickran Tevrizian, District Judge, Presiding.

Before B. FLETCHER, THOMAS, and WARDLAW, Circuit Judges.

OPINION

BETTY B. FLETCHER, Circuit Judge.

Benjamin Wai Silva, who is on death row in California for the murder of Kevin Thorpe in 1981, appeals from the denial of his petition for a writ of habeas corpus. Because we find that Silva's counsel was constitutionally ineffective in failing to investigate and present potentially compelling mitigating evidence to the jury, we grant the writ as to the penalty phase, vacate his death sentence, and remand for a new sentencing hearing. In addition, we remand for an evidentiary hearing into Silva's Brady claim that the prosecution failed to disclose an agreement that the state's key witness not be psychiatrically examined until after the trial. We deny all of his other claims.

I. Factual Background

Silva stands convicted of the gruesome abduction, robbery and murder of Thorpe in Madeline, California. Thorpe and his girlfriend, Laura Craig, were college students returning from winter break when they passed through Madeline on their way to Oregon. On January 11, 1981, Silva and two accomplices, Joe Shelton and Norman Thomas, kidnaped Thorpe and Craig after spotting the couple at a filling station in town. The three men forced the couple to drive to Shelton's property and proceeded to take their cash and belongings. Thorpe was then chained to a tree while Craig was taken inside a cabin and repeatedly sexually assaulted.

The next day, Silva and Shelton killed Thorpe by inflicting multiple gunshot wounds from an automatic weapon. Thomas then dismembered Thorpe's body with an axe (purportedly on Silva's orders) and stuffed the remains into several trash bags, which were each buried in shallow graves. Several days later, Craig was shot twice and killed by the side of a road.

Thomas informed police of the murders later that month after being found in possession of a firearm in violation of his probation. In exchange for turning state's evidence, murder charges against Thomas were dropped. He was eventually sentenced to eleven years and four months imprisonment for participating in the kidnaping, being an accessory after the fact to murder, burglary, and use of a firearm.

Shelton's trial took place before Silva's. He was convicted of murdering both Thorpe and Craig and sentenced to life without parole. On direct appeal, he was resentenced to life imprisonment.

Because of publicity, Silva's trial was held in San Bernardino County in January 1982. When called to testify at Silva's trial, Shelton invoked his Fifth Amendment privilege against self-incrimination. The primary evidence regarding Silva's role in Thorpe's death came from Thomas. Thomas testified that both Silva and Shelton left the cabin in the morning after the kidnapings, and that Thorpe was murdered while Thomas was having consensual sex with Craig. According to Thomas, Silva then returned to the cabin and forced Thomas to dismember and dispose of Thorpe's body. Subsequently, the three men were standing over a barrel in which some of Thorpe's belongings were being burned, when Shelton allegedly proceeded to describe to Thomas how Thorpe had died. Shelton related how he and Silva had unlocked the chain linking Thorpe to the tree and led him terrified and crying up the side of a hill. After leaving briefly to obtain a weapon, Silva then walked up behind Thorpe and shot him up and down his body at close range, using an Ingram M-11 .38 caliber fully automatic pistol equipped with a silencer. Silva then gave the weapon to Shelton, who emptied the rest of the magazine clip into Thorpe's body. According to Thomas, Silva simply looked on and smiled as Shelton described the slaying to Thomas.

Thomas also testified that several days after Craig's disappearance, a similar conversation took place while the three were gathered on the porch of the cabin, in which Shelton described how Craig had been shot and killed. Once again, Silva allegedly looked on and smiled while Shelton spoke to Thomas.

At the conclusion of the guilt phase, the jury deliberated for two days before finding Silva guilty of first-degree murder in the shooting death of Thorpe. However, the jury found Silva not guilty of Craig's murder. The jury also found Silva guilty of kidnaping and robbing both victims, as well as illegally possessing a machine gun and a silencer.

In the ensuing penalty phase, the jury found the existence of four special circumstances — felony murder (kidnaping for robbery), heinous murder, witness murder, and financial gain murder — ultimately leading to a sentence of death.¹ Silva was also sentenced to two consecutive life terms as well as a three-year consecutive term on the lesser charges.

A key issue raised by Silva in this appeal concerns his court-appointed trial counsel's failure to impeach or to otherwise challenge Thomas's reliability as a witness. Thomas had been involved in a motorcycle accident several years earlier and suffered severe brain damage. In addition, Silva contends that prosecutors improperly struck a deal with Thomas's attorney, whereby he would refrain from conducting a psychiatric evaluation of his client until after Thomas testified at Silva's trial. Silva claims that information about this alleged arrangement was withheld from the defense, which could have used it to undermine Thomas's credibility before the jury.

Another prominent issue raised by Silva concerns his trial counsel's failure to investigate and put on evidence regarding his background and mental state during both the guilt and penalty phases of the trial. Silva's court-appointed trial counsel, Thomas Buckwalter,² never hired an investigator despite the availability of funds to do so. In response, Buckwalter claims that he wanted to contact Silva's family members and friends, but that Silva adamantly opposed such investigation and threatened to disrupt the trial if Buckwalter attempted to look into his background — a charge that Silva denies. In addition to not calling Silva's family and friends as witnesses, Buckwalter apparently took Silva's alleged directive as grounds to forego all inquiry into his past. Buckwalter also never obtained or examined available records that might have alerted him to Silva's mental health history, incarceration record, history of drug usage, and family background. Although Buckwalter hired a psychiatrist to evaluate Silva, he provided no information or direction on the type of evaluation to be performed. The resulting evaluation was, in the words of the psychiatrist, Dr. Albert French, "suboptimal"; he interviewed Silva for 45 minutes, during which time Silva was unwilling to speak candidly because he believed the phone used for the interview was being monitored by prison authorities.

As a result, Silva contends in this appeal that Buckwalter was unable to gather evidence about potential mental defenses to a charge of first-degree murder³ during the guilt phase. In addition, during the penalty phase, Buckwalter failed to present a raft of available evidence in mitigation. All told, Buckwalter called a total of four witnesses in the penalty phase, comprised of three friends who essentially testified that Silva was not a violent man, and one police officer who testified that Silva had complained to him about mistreatment by other officers. As the California Supreme Court noted in denying Silva's direct appeal, the prosecutor's main argument to the jury during sentencing was the dearth of evidence in mitigation of the crimes. People v. Silva, 45 Cal.3d 604, 634, 247 Cal.Rptr. 573, 754 P.2d 1070 (Cal.1988) ("The prosecutor emphasized this central point: That nothing mitigated the circumstances of this crime.")

Finally, during their deliberations in the penalty phase, the jurors sought an explanation from the judge as to the true meaning of "life without parole." They sent two questions to the judge: (1) Does anyone have the authority to override the penalty decided by this jury?; and (2) Does life in prison without possibility of parole mean just that, or is parole possible at some future date? The judge responded that he was unable under the law to answer either question, and referred them back to the jury instructions. Silva now contends that one juror used extrinsic evidence to aver to the other jurors that absent a death sentence, parole for Silva was still possible at some point, resulting in a substantial and injurious impact on the jury's penalty phase deliberations.

Subsequent Procedural Background

On direct appeal, the California Supreme Court vacated the heinous-murder, witness-murder, and financial-gain-murder special circumstance findings. In all other respects, the verdict was affirmed, including the death sentence. Silva, 45 Cal.3d at 604, 247 Cal.Rptr. 573, 754 P.2d 1070. The court held that evidence that Silva smiled while listening to the description of his participation in Thorpe's murder was sufficiently relevant to be submitted to the jury under the adoptive admissions hearsay exception. It also held that there was sufficient evidence to sustain the felony-murder special circumstance finding, and that the jury's consideration of the three invalid special circumstance findings was harmless error which did not affect the jury's sentencing decision.

Two subsequent state habeas petitions were summarily denied...