Turner v. Duncan

• Decision Date: 24 November 1998
• Docket Number: No. 97-56098,97-56098
• Citation: 158 F.3d 449
• Parties: 98 Cal. Daily Op. Serv. 7692, 98 Daily Journal D.A.R. 10,652, 98 Daily Journal D.A.R. 11,961 Billy Carl TURNER, Petitioner-Appellant, v. William DUNCAN, Warden; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 449

158 F.3d 449

98 Cal. Daily Op. Serv. 7692, 98 Daily Journal

D.A.R. 10,652,

98 Daily Journal D.A.R. 11,961

Billy Carl TURNER, Petitioner-Appellant, v. William DUNCAN, Warden; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellees.

No. 97-56098.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 3, 1998.

Decided Oct. 8, 1998.

As Amended on Denial of Rehearing and Suggestion for

Rehearing En Banc Nov. 24, 1998.

Mark R. McDonald and Steven M. Haines, Morrison & Foerster, Los Angeles, California, for petitioner-appellant.

Victoria Bedrossian, Deputy Attorney General, Los Angeles, California, for respondents-appellees.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-95-00079-MRP.

Before: REINHARDT, TROTT, and T.G. NELSON, Circuit Judges.

REINHARDT, Circuit Judge.

Billy Carl Turner, a defendant facing first degree murder charges, paid an attorney $1000 to represent him at trial. In return, his lawyer delivered one of the most minimal efforts we have seen in a case of this magnitude. Turner's attorney failed to take even the most basic steps to investigate and prepare Turner's defense, although evidence relevant to his mental state was readily available and could have been discovered simply by reading the case file. This deficient representation deprived Turner of the best evidence that he could have presented to corroborate his testimony that he had killed the victim, Arthur Dennis, while in a state of anger and fear due to months of severe physical and sexual abuse. We therefore reverse the district court's denial of the habeas petition and remand for an evidentiary hearing on the question of prejudice.

BACKGROUND

At the time of the murder, Turner lived in a boarding house with five other individuals, including Dennis, who had moved into the house after his release from prison in early 1981. Turner's only previous criminal convictions were for driving under the influence.

On the evening of September 18, 1981, Turner--carrying a jar of liquid--walked into one of the house's bedrooms, where his housemates Henry Ross, William Berry and Ida Mae Seales were sitting and listening to the radio. Turner sat down briefly and had a drink. He then arose, stated that he was going to "get that black bitch," and left the room. ¹ Dennis, who had been lying on the couch in the living room, possibly asleep, ² appeared three to five minutes later at the bedroom door, "all in flames." Dennis died from his burns the next day.

Over the next two days, Turner gave conflicting statements to fire and police investigators. ³ He ultimately admitted that he had killed Dennis by throwing gasoline on him and setting him on fire, claiming that he had done so in reaction to a sexual threat by Dennis which followed months of sexual and physical abuse.

After Turner was indicted, the court appointed public defender Joy Wilensky to represent him. The public defender launched an investigation, interviewing a number of witnesses who had seen or heard of abusive and violent behavior by Dennis and had witnessed Dennis threaten Turner. At least one of the witnesses corroborated Turner's testimony by confirming that Turner had made contemporaneous complaints about Dennis's abuse. Laverne Love recounted prior conversations with Turner in which he had reported his fear of Dennis, and had said that Dennis had physically and sexually threatened him. Turner's housemate Seales stated that she had heard Dennis threaten Turner with bodily harm. Another house resident, Berry, stated that he had fought with Dennis in the past and that he had witnessed Dennis choke two women, one with a board across her throat after she refused to have sex with him. Berry and Seales also characterized Dennis as an aggressive individual with a bad temper, and Turner as a "nice" and nonaggressive person.

The public defender also arranged for a court appointed psychiatrist, Dr. Alvin Davis, to examine Turner. Dr. Davis's 1981 report stated that Turner had "acted impulsively in reaction to fear and anger at past abuse by victim, and to threat of current and future physical and sexual abuse by him." Dr. Davis concluded that Turner was "not a danger to others," that the offense was "a single isolated instance of violence, highly provoked by victim at the time and by ongoing provocation that was overly stressful to Defendant." He further stated that Turner had the mental capacity to form specific intent, to briefly premeditate, and to harbor malice, but not "to deliberate or maturely reflect, because of fear and immediate threat, and his passive personality." Turner had acted "in what he experienced as self-defense with no viable alternative to taking action himself." ⁴

Turner, concerned that the public defender would be unable to mount a sufficient investigation, followed his mother's advice and retained private counsel, Andrew Smyth, for a $1000 fee. His mother, who had discovered Smyth through an advertisement Smyth had placed, paid Smyth's fee. Smyth had represented one previous defendant in a murder trial; that conviction was overturned for ineffective assistance of counsel. On the day that the court granted Turner's motion for substitution of counsel, Wilensky turned over to Smyth "all subpoenas, psychiatric letters, the police reports, [and] the results of [her] discovery," and promised to also forward to him a summary of her investigation reports.

After taking over Turner's defense, Smyth did almost nothing--in the words of the magistrate judge, he exhibited "a startling lack of preparation for trial"--failing to perform even the most basic investigative tasks. In a declaration prepared for purposes of these habeas proceedings, Smyth admits that his only preparation for trial consisted of reviewing the transcript of the preliminary hearing and spending between twenty and forty five minutes interviewing Turner. He acknowledges that he made no attempt to find or interview any prosecution or defense witnesses, although Turner had told him of the existence of individuals who "had been badly beaten and choked by the victim" and he knew that the prosecution was planning to call Turner's housemates to the stand. He also concedes that he did "not recall reviewing any file, psychiatrist report or document" provided by Turner's public defender; he therefore did not discover the existence of witnesses who would have corroborated Turner's testimony about past abuse by Dennis, and did not realize that Dr. Davis had evaluated Turner and written a report that was in the file. Accordingly, Smyth did not offer the psychiatric report into evidence or call Dr. Davis as a witness at trial. Finally, Smyth admits that he conducted no discovery and did no legal research in preparation for the case.

The trial lasted less than a day and a half. The prosecution presented two residents of the boarding house, Berry and Ross, who testified about their observations on the evening of September 18. On cross-examination, Smyth asked Berry whether he had ever seen Dennis attack a woman and hold a stick to her throat; when Berry responded affirmatively, Smyth did not request further details and therefore did not bring to the jury's attention that this attack was in response to the woman's refusal to have sex with Dennis. Both the prosecutor and Smyth also elicited testimony from Ross and Berry about past physical conflicts with both Dennis and Turner. The prosecution also presented an arson investigator and a police detective, who testified about Turner's conflicting statements in the hours and days following the killing.

The defense advanced a heat of passion defense but called only one witness, Turner. The record suggests that Smyth spent almost no time preparing Turner to testify. In his testimony, Turner admitted killing Dennis by setting him on fire. He testified that he had done so in response to repeated physical attacks and rapes by Dennis, including incidents in which Dennis had sodomized him with a mop handle and defecated and urinated on him. ⁵ Turner also testified that Dennis stole his money and threatened to kill him if he went to the police. He claimed that he had set fire to Dennis on the "spur of the moment" in reaction to Dennis's pulling out his penis and indicating a desire for sex, and that he had purchased the gasoline that he used to set Dennis on fire two days earlier for use in cleaning his floor.

The prosecution undermined Turner's credibility in cross-examination and in its closing argument by emphasizing the inconsistencies in his statements to the police and his failure to present any corroboration of his The judge instructed the jury on alternate theories under which Turner could be convicted of first degree murder: if he committed a willful, deliberate, premeditated killing with malice aforethought, ⁶ murder by torture, and/or murder preceded by lying in wait. The jury convicted Turner of first degree murder. The verdict form did not specify under which theory the jury had convicted him.

claims of past abuse. The prosecution also suggested that Turner and Dennis were consensual lovers, and cross-examined Turner extensively about why he didn't leave the boarding house or report the abuse to the police. Turner appeared to be totally unprepared to respond to these questions.

After Turner's conviction, Smyth handled the appeal, for which he received an additional $1000 from Turner's mother. Smyth admits that he did no legal research before filing a Wende brief asserting that he found no meritorious grounds for appeal.

Since his conviction, Turner has filed four federal habeas corpus petitions in addition to multiple petitions in California state court--all pro se until the petition now before us on appeal. Turner's first federal petition was dismissed without prejudice because of failure to exhaust state...