Wade v. Vasquez, CV89-0173-R.

• Decision Date: 18 October 1990
• Docket Number: No. CV89-0173-R.,CV89-0173-R.
• Citation: 752 F. Supp. 931
• Court: U.S. District Court — Central District of California
• Parties: Melvin Meffrey WADE, Petitioner, v. Daniel VASQUEZ, Warden of San Quentin Prison, Respondent.

752 F. Supp. 931

Melvin Meffrey WADE, Petitioner, v. Daniel VASQUEZ, Warden of San Quentin Prison, Respondent.

No. CV89-0173-R.

United States District Court, C.D. California.

October 18, 1990.

Donald J. Ayoob, Deputy State Public Defender, San Francisco, Cal., for petitioner.

Pat Zaharopoulos, Jay M. Bloom, Deputy Atty. Gen., San Diego, Cal., for respondent.

SECOND AMENDED OPINION

REAL, Chief Judge.

Petitioner MELVIN MEFFREY WADE (WADE) has filed a Petition For Writ of Habeas Corpus By a Person In State Custody alleging his conviction and death sentence for: murder; torture special circumstance, and heinous, atrocious and cruel special circumstances is unconstitutional on various grounds; They are:

1. Ineffective Assistance of Counsel at Voir Dire

2. Ineffective Assistance of Counsel at Guilt Phase

3. Ineffective Assistance of Counsel at Sanity Phase

4. Ineffective Assistance of Counsel at Penalty Phase

5. Ineffective Assistance of Trial Counsel Post-Conviction and Sentence

6. Juror Misconduct/Receipt, Discussion and Consideration of Extra-Records Facts at Guilt Phase

7. Juror Misconduct/Receipt, Discussion and Consideration of Extra-Record Facts at Sanity Phase

8. Juror Misconduct/Receipt, Discussion and Consideration of Extra-Record Facts at Penalty Phase

9. Presumption of Death/"Shall" Instruction

10. Failure to Instruct to Consider All Mitigation

11. Limitation on Consideration of Mitigating Evidence Relating to Petitioner's Mental and Emotional Condition

12. Introduction of Evidence of Unadjudicated Criminal Activity

13. Skewing of Weighing Process

14. The Torture-Murder Special Circumstance Instruction

15. Denial of Meaningful Appellate Review

16. Battered Parent

17. Multiple Defects in Capital Sentencing Process

None of the 17 grounds has been supported by credible evidence and so the petition must be denied. The consideration of each ground is as follows:

1. INEFFECTIVE ASSISTANCE OF COUNSEL AT VOIR DIRE — GUILT PHASE — SANITY PHASE — PENALTY PHASE — POST-CONVICTION AND SENTENCE

These five (5) grounds are subsumed within the consideration of trial counsel preparation and performance at the trial of petitioner. On these issues this Court must be guided by the United States Supreme Court in its decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland, supra at 687, 104 S.Ct. at 2064 sets forth the burden of a petitioner in establishing the ineffective assistance of counsel as:

"... First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." (emphasis added)

Petitioner has unfortunately failed on both aspects of the Strickland, supra test. Petitioner was represented at trial by S. Donald Ames (AMES). At the time of his appointment to represent WADE, AMES had been engaged in the practice of criminal law for nine (9) years — six of those nine years as a County Public Defender and three years in private practice specializing in criminal defense. Before his appointment to represent WADE he had defended one Steven Anderson in a Capital trial. (See People v. Anderson, 38 Cal.App.3d 952, 113 Cal.Rptr. 729 (1974)). Judge Ben Kayashima, the trial judge in the WADE trial described AMES as "one of the top ten criminal defense attorneys in the county" and "one out of five qualified to try death penalty cases."

WADE had been represented by one Daniel Greenberg before AMES' appointment. Greenberg had made and lost a change of venue motion. Greenberg also had WADE examined by a psychiatrist and psychologist. This information was given by Greenberg to AMES with the comment that the case was an absolute loser and he — Greenberg — did not want his name associated with a loser.

A. VOIR DIRE

WADE claims that AMES should have questioned the jury panel on bias or prejudice against applying the law of insanity or diminished capacity. But the problem with WADE'S position is that at the time of voir dire, AMES, after studying the psychiatric and psychological material he had received from Greenberg and the reports he received from the psychologist and neurologist he had engaged to examine WADE, had already determined WADE did not have a psychiatric or diminished capacity defense. It was only after the jury had been selected that AMES received some information that he believed might support an insanity defense of disassociative disorder. Immediately AMES moved for a mistrial on the ground he did not have a chance to voir dire the jury on an insanity defense. The mistrial motion was denied by the trial judge. There was no constitutional error.

B. GUILT PHASE

WADE claims that AMES failed to make a sufficient investigation and to prepare prior to trial. In making these assertions WADE urges this court to make that determination based on the time AMES requested to be paid under his appointment and the time spent by AMES' investigator one D.J. Alton (ALTON). AMES claimed 12.5 hours and ALTON claimed he met with AMES on 35 different dates. Time spent on the preparation of any matter cannot be the deciding criteria for the constitutional adequacy or inadequacy of the performance of one charged with the duty to competently represent a client. Experience tells us that what may take one person an hour to prepare may take others 5, 10 or 20 hours to accomplish the same level of preparation. In some cases, no matter how many hours are spent, competency in the subject matter is never accomplished. Moreover, AMES testified that he spent considerably more hours than he claimed for reimbursement purposes. He explained that San Bernardino County was rather niggardly in the payment of counsel time and so he didn't bother to claim all the hours he spent working on WADE'S trial. The County's attitude on counsel payments in appointive cases was corroborated by Judge Ben Kayashima. AMES' testimony is credible and he should not be branded incompetent on the basis of his compensation claim.¹

AMES tried WADE'S case presenting a defense he judged to be his only defense — disassociative disorder. He knew the facts of the murder well and could not find any factual dispute with the details of the events surrounding the murder. His judgment that the only defense he could present was a disassociative disorder defense should not be deemed incompetence. The defense, if any he had, was presented well and competently by an experienced criminal lawyer. The result of the guilt phase was tragic to WADE but no more tragic than the facts that brought him to trial for the murder of the daughter by a prior marriage of his wife, Irabell "Cookie" Strong.

C. SANITY PHASE

AMES had presented all the psychiatric testimony on the disassociative disorder defense in the guilt phase of the trial. He explained that strategy was adopted because of the otherwise lack of facts that could be used as a defense. More importantly AMES wanted the jury to learn as early as possible about the fact that they were, as he put it, "dealing with a very sick human being."

Having put WADE'S social history in through the medical experts, AMES made the judgment call that he had presented to the jury a complete picture of his client.

WADE faults AMES for not presenting evidence of his use of PCP or the fact that he was a battered child. Both were produced in evidence through various witnesses during the trial. AMES did not want to press a defense based on the use of PCP because, in his judgment, that defense tactic would prove useless in San Bernardino County given the facts of the murder. Moreover, there was no evidence to support recent use of PCP. What evidence WADE indicated was available was incompetent hearsay.

Having given what in effect was his strongest joint guilt and sanity defense, AMES cannot be faulted for not recalling the medical experts to repeat what they had already told the jury. AMES did not fail the Strickland test, supra in the sanity phase.

D. PENALTY PHASE

WADE faults AMES for not calling WADE'S mother and sister in the penalty phase of his trial. AMES presented everything WADE'S mother or sister could have testified to through the medical experts. WADE'S criticism of that method of presenting "mitigating evidence" is that "the failure to produce these witnesses diminished the impact of such evidence." AMES had decided from his talk with WADE'S mother and the information he was given by his investigator about the testimony of WADE'S sister that the testimony of WADE'S mother and sister would have been at odds with each other. He decided — and no one on this record can say improperly — that he would not use them in the penalty phase. Certainly where the evidence would be repetitive, who to use and how it should be presented to the jury is judgmental in every respect. As an experienced trial lawyer, AMES made that judgment. The fact that he was not successful in his attempts to spare WADE'S life does not measure his competency or the expression of that competency in defense of WADE.

The California Supreme Court held on direct appeal, People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794 (1988), that AMES' argument was a reasonable and tactical one, aimed at gaining the jury's sympathy for his client.

The penalty phase of a capital case is largely the persuasive effects of the testimony of the defendant himself in asking for the mercy of the jury and the advocacy of counsel for a defendant to be persuasive enough to overcome the facts...