Williams v. Wraxall, No. A061964

• Court: California Court of Appeals
• Writing for the Court: NEWSOM; STRANKMAN, P.J., and STEIN
• Citation: 33 Cal.App.4th 120,39 Cal.Rptr.2d 658
• Parties: Kenneth Derrell WILLIAMS, Plaintiff and Respondent, v. Brian WRAXALL, et al., Defendants and Appellants.
• Docket Number: No. A061964
• Decision Date: 16 March 1995

Page 658

39 Cal.Rptr.2d 658 33 Cal.App.4th 120 Kenneth Derrell WILLIAMS, Plaintiff and Respondent,
v.
Brian WRAXALL, et al., Defendants and Appellants. No. A061964. Court of Appeal, First District, Division 1, California. March 16, 1995.

As Modified on Denial of Rehearing April 12, l995.

Page 660

[33 Cal.App.4th 125] Loretta H. Helen, Douglas R. Greer, Sacramento, for plaintiff/respondent.

Law Office of Walter S. Moeller, Walter S. Moeller, William S. Caspari, Alameda, for defendants/appellants.

NEWSOM, Associate Justice.

Respondent Kenneth Williams (hereafter Kenneth or respondent) and his brother Fredrick Williams (hereafter Fredrick) were separately charged in Placer County Superior Court with the burglary, rape, robbery, kidnapping and murder, with special circumstances, of Heather Meade (hereafter Heather) in June of 1980. Attorneys Douglas Greer and Ronald Castro were appointed to represent respondent; William Lipschultz was appointed as counsel for Fredrick. ¹ The criminal cases against respondent and his brother Fredrick were consolidated in October of 1990, and a joint pretrial motion for change of venue was denied.

The prosecution engaged Michael Saggs (hereafter Saggs), a serologist employed by the department of justice, to undertake a serological examination to determine the blood type, secretor status and phosphoglumotose (PGM) ² grouping of samples taken from the victim, her panties, two shirts and a bedsheet. The same tests were conducted on respondent, Fredrick, the victim's fiance, and two of her male friends.

Lipschultz retained appellant Brian Wraxall (hereafter Wraxall) in September of 1980 to independently examine the serological evidence on behalf [33 Cal.App.4th 126] of Fredrick. Wraxall is the executive director, a board director and the chief forensic serologist for the Serological Research Institute (hereafter SERI), a non-profit public benefit corporation which, among other activities, conducts serological tests in selected criminal and civil cases. Wraxall received from Lipschultz "cuttings" from the bed sheet, the victim's panties and the two shirts, as well as blood samples in the form of "swatches" from the victim, respondent, Fredrick "and other individuals associated with the case." Wraxall subsequently complained to Lipschultz that the cuttings he received were "inadequate" for testing.

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A hearing was held on November 14, 1980, upon a motion by Lipschultz on behalf of Fredrick which was "joined" by respondent's attorneys, for discovery of the items of serological evidence. Wraxall was present at the hearing, along with the prosecutor, Saggs, and the attorneys for respondent and Fredrick. The prosecutor expressed concern at the hearing that the limited quantity of crime scene evidence might be consumed upon testing by Wraxall, and, if so, preclude examination by another expert, which, in turn, might result in objection by respondent if he was thereby deprived of an opportunity to conduct an independent analysis. Thus, in accordance with a stipulation, the evidence was released to Wraxall for serological examination by him, with the results to be made "fully available" to and "utilized" by the attorneys for both respondent and Fredrick, and with respondent foreclosed from objecting to the admission of evidence of the prosecution's serological test results on the ground of inability to obtain test results from an independent expert. ³ Wraxall and Lipschultz understood that pursuant to the stipulation the results of any further testing "would be made available to the attorneys" for respondent as well as Fredrick upon demand. Otherwise, Wraxall still considered Fredrick to be his primary client.

After completing an analysis of the samples given to him, the prosecution's expert, Saggs, essentially concluded that the seminal material taken from the vaginal swabs, the victim's panties and the bedsheet were consistent with respondent's blood type O secretor status and PGM 2-1 status. While Fredrick, also a blood type O secretor, was found to have a PGM 1-1 type, Saggs was unable to discount him as a possible source due to the "masking" of PGM 1-1 type by PGM type 2-1. Lipschultz was concerned by Saggs' conclusion which did not definitively eliminate Fredrick as the perpetrator of the rape.

Wraxall subsequently obtained additional and separate samples from Saggs pursuant to the stipulation and conducted his serological analysis, [33 Cal.App.4th 127] which was completed by February 20, 1981. Wraxall agreed with Saggs' determination that the PGM 1-1 type was masked by the PGM 2-1 type. Otherwise, he was unable to duplicate Saggs' results. Wraxall did not obtain any PGM result from the analysis of the bedsheet sample. He found PGM 1-1 type on one sample of the panties instead of PGM 2-1 type, and found "no activity" on the other sample. On the vaginal swab sample he was given, Wraxall found only PGM 1-1 type activity whereas Saggs found PGM 2-1 type activity. On the vulva sample, Wraxall found PGM 1-1 type activity, as had Saggs. The essential disparity between the results obtained by Wraxall and Saggs is that Wraxall did not find PGM activity consistent with a PGM 2-1 type donor such as respondent on any of the samples he tested. The results obtained by Saggs placed respondent in the class of persons who may have contributed the samples; Wraxall was unable to either exclude respondent from or include him in the donor class.

Wraxall advised Lipschultz that his test results differed from those obtained by Saggs and "may be of use" to respondent's defense. His objective was to convey the results he obtained and await contact from respondent's attorneys if they were "interested...." He did not then "know who [respondent's] attorney's were" and did not notify them of his test results. In late January or February of 1981, Lipschultz advised respondent's attorney Greer that Wraxall had been unable to duplicate Saggs' test results, and further told him that "he should talk to Wraxall about the testing because there may be further work that needs to be done." Wraxall testified that respondent's attorneys did not thereafter contact him before respondent's trial.

Wraxall believed that his test results might be "helpful" to respondent's defense, but of a nature and extent unknown to him. He also testified that the disparate results he obtained may have been caused by the different samples he and Saggs tested.

In February of 1981, Thomas Condit and Thomas Leupp substituted for Lipschultz as Fredrick's attorneys. In May of 1981, Loretta Hellen became cocounsel with Greer for

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respondent in place of Castro. The cases against respondent and his brother Fredrick were severed in April of 1981, and respondent's trial commenced on May 19, 1981. During the course of the trial, which was quite lengthy and protracted,--with "close to 70" witnesses called by the prosecution--respondents' attorneys testified that in discussions with Lipschultz and Leupp they were advised of Wraxall's failure to obtain any results from his forensic tests. According to Greer, in a telephone conversation on August 31, 1981, Wraxall similarly told him that he "did not have enough crime scene evidence to analyze to get any results...." [33 Cal.App.4th 128] Leupp and Lipschultz testified, to the contrary, that they accurately relayed Wraxall's test results to respondent's attorneys. Wraxall testified that he never spoke with Greer and Hellen during the trial.

Wraxall was not called as a defense witness during respondent's murder trial. Instead, the defense rebutted the conclusions of Saggs with testimony from Dr. Julita Fong, a clinical pathologist. Fong challenged the conclusions of the prosecutor's expert based upon her review of the photographs of Saggs' test results, but did not independently analyze the samples. In light of the information given to them by Wraxall, Lipschultz and Leupp--that the samples tested by Wraxall yielded no results--respondent's criminal defense attorneys decided against any further attempts to conduct a second independent forensic analysis of the crime scene evidence and devised their trial strategy accordingly. Respondent's defense attorneys testified that without the evidence of Wraxall's test results, the cross-examination of Saggs in the murder trial was compromised, the credibility of respondent was "destroyed," and the defense was "crippled" by the inability to prove that respondent did not commit the rape and murder of Heather. Following the jury trial, on May 13, 1982 respondent was convicted of all charges, including murder with special circumstances, and subsequently sentenced to death.

In January of 1985, Fredrick entered a plea of guilty in his criminal action to charges of burglary and rape. He was sentenced to a term of nine years and eight months in state prison. Under the terms of the plea agreement, the People retained the right to subsequently prosecute Fredrick on the murder charge in the event additional evidence of his guilt was uncovered.

An appeal and petitions for writ of habeas corpus were filed on behalf of respondent. In one of the habeas corpus petitions, respondent claimed that he had received ineffective assistance of counsel due to the failure of his trial attorneys, Greer and Hellen, to present testimony from Wraxall. In support of the petition, Wraxall filed a declaration in which he described the results of his analysis as "contradictory" to Saggs' results and criticized Saggs' methods and conclusions. Wraxall further declared: "Based on my independent analysis no identification of the donor of the semen on the vaginal and vulva swabs or the stains on the panties or bedsheet can be made. [Italics added.] In other words, the semen donor could be any male in the population. None of my results indicate that it is more likely to be from Kenneth Williams than any other male." The petition was ordered consolidated with...