In re Welch , 61 Cal. 4th 489 ( 2015 )

Filed 6/22/15
IN THE SUPREME COURT OF CALIFORNIA
In re DAVID ESCO WELCH )
) S107782
on Habeas Corpus. )
____________________________________)
David Esco Welch filed an original habeas corpus petition in this court
claiming he should be granted relief from his multiple murder convictions and
death sentence. We issued an order to show cause with respect to two of Welch‘s
claims: (1) that prejudicial juror misconduct occurred when jurors were exposed
to improper communications by the bailiff or bailiffs, and (2) that trial counsel
rendered ineffective assistance by failing to investigate and introduce evidence
that Welch suffered from serious child abuse.
After an evidentiary hearing, the referee concluded (1) that there was no
credible evidence of improper communications from the bailiffs to the jury and
(2) that trial counsel performed deficiently at the penalty phase of Welch‘s trial by
failing to investigate and introduce testimony from family members that Welch
suffered from serious child abuse.
As to the first issue, we agree with the referee‘s conclusion that there was
no credible evidence of juror misconduct. As to the second issue, we conclude
that in light of the strong aggravating evidence against Welch, as well as the
mitigating evidence introduced at trial, the additional mitigating evidence that trial
counsel could have introduced would not have bolstered Welch‘s mental illness
defense to such an extent as to undermine confidence in the penalty verdict. Nor
would it have likely resulted in a successful alternative defense based on sympathy
for Welch as the victim of child abuse. We therefore hold that Welch is not
entitled to relief.
I. PROCEDURAL BACKGROUND
In June 1989, a jury found Welch guilty of six counts of first degree murder
in a single incident occurring on December 8, 1986. It also found him guilty of
two counts of attempted murder in connection with the same incident and one
count of concealing a firearm as a felon. The jury found true a multiple-murder
special-circumstance allegation. (Pen. Code, § 190.2, subd. (a)(3).) At the penalty
phase, the jury returned a death verdict, and the trial court sentenced him to death.
We affirmed this judgment in 1999. (People v. Welch (1999) 20 Cal. 4th 701
(Welch).)
Welch filed his first habeas corpus petition in June 2002. In claim 6 of the
petition, he alleged juror misconduct. He produced juror declarations alleging,
among other things, that the bailiffs improperly communicated to the jurors that
Welch or his confederates were threatening witnesses at trial. His petition also
alleged, in claim 18, ineffective assistance of counsel at the penalty phase for
failure to introduce mitigating evidence that Welch suffered physical abuse and
deprivation as a child. This claim was supported by a declaration from his
maternal aunt, Sarah Perine. Perine declared that Welch‘s father was unable and
unwilling to provide for his family and as a result Welch often went hungry.
According to Perine, Welch‘s father, also named David, was a violent alcoholic
who abused Welch‘s mother and beat her frequently, including when she was
pregnant with Welch. Welch‘s father also frequently beat Welch ―with belts,
extension cords, or anything he got his hands on.‖ Perine further stated that no
one had ever contacted her about Welch‘s case until June 2002 and that she would
have been available to testify at trial had she been contacted.
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In November 2005, we issued to the Director of the Department of
Corrections (now Director of the Department of Corrections and Rehabilitation) an
order to show cause why we should not grant Welch relief on grounds of jury
misconduct and ineffective assistance of counsel as alleged in claims 6 and 18 of
his habeas corpus petition. After the Attorney General‘s return and Welch‘s reply,
we ordered a reference hearing in May 2007. In that order, we granted Welch‘s
request that the hearing be held in Contra Costa County, rather than in Alameda
County where the crimes occurred. The order directed the referee to address three
sets of questions:
1. During Welch‘s trial, did the bailiff engage in improper communications
with any of the jurors that exposed them to information prejudicial to Welch? If
so, what were those communications?
2. Did trial counsel adequately investigate potential evidence in mitigation
during the penalty phase that Welch had been the victim of serious child abuse? If
trial counsel‘s investigation was inadequate, what additional information would an
adequate investigation have disclosed?
3. If an adequate investigation would have yielded evidence that Welch
suffered serious child abuse, would a reasonably competent attorney have
introduced such evidence at the penalty phase of the trial? What rebuttal evidence
reasonably would have been available to the prosecution?
In June 2007, Contra Costa County Superior Court Judge Mary Ann
O‘Malley was appointed referee. The referee conducted an evidentiary hearing
from September 13, 2010 through April 11, 2011, during which some 30 witnesses
testified. The referee filed a thorough 64-page report with recommendations in
this court on January 2, 2013. Welch and the Attorney General filed exceptions to
that report on September 3, 2013 and replies on October 4, 2013.
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II. TRIAL EVIDENCE
One of the primary issues in this case is whether trial counsel‘s failure to
introduce evidence of child abuse and neglect suffered by Welch was prejudicial at
the penalty phase. Deciding this issue requires an examination of the evidentiary
record as a whole. Accordingly, we include here the summation of the trial
evidence from our opinion affirming Welch‘s death judgment on direct appeal.
“A. The Prosecution’s Case
―In the morning hours of December 8, 1986, Welch and his girlfriend at the
time, Rita Lewis, broke down the front door of Barbara Mabrey‘s home in
Oakland, and killed six persons as they were sleeping in various rooms. Among
the dead were Dellane Mabrey, the 16-year-old daughter of Barbara Mabrey and
former lover of defendant, Sean and Darnell Mabrey, Barbara Mabrey‘s 21-year-
old and 22-year-old sons, Catherine Walker and her 4-year-old son, Dwayne
Miller, and Valencia Morgan, Dellane Mabrey and Leslie Morgan‘s 2-year-old
daughter. Four people survived the attack: Barbara Mabrey escaped through the
back door; her son Stacey Mabrey avoided detection by hiding in a bedroom
closet; Leslie Morgan, though shot in the arm, feigned death and later escaped
through the back door; and Dexter Mabrey, a nine-month-old child, was only
grazed by one of the bullets that killed his mother and sister.
―Dellane and Valencia had been shot in the head at close range. Sean had
been shot in the chest and head while sleeping on the living room couch. His
wounds were fatal, puncturing the aorta. Darnell Mabrey had also been fatally
shot in the head while sleeping. Catherine Walker and Dwayne Miller had been
shot while sleeping on the sofa in the den. They, too, had both been shot in the
head at close range while asleep.
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―Defendant and the Mabreys had serious difficulties with each other in the
few months before the shooting. Barbara Mabrey had met defendant in early
1986. Her daughter, Dellane, was dating defendant and said that defendant was
Dexter‘s father. Around September 1986 Barbara and defendant had an argument
over Dellane, with Barbara telling him to stay away. On October 9, 1986, shortly
after Dexter was born, defendant broke into the house and at gunpoint took Dexter
away from Barbara. Dellane and her daughter Valencia went with defendant and
were gone for three days.
―A few days later, when Barbara was going to the store, defendant drove up
to her and spat at her from the car window, yelling ‗Bitch, you are dead.‘ He
followed her home, striking her in the knee with his car as she tried to flee into her
home and laughing as he did it. A day later he told one of Barbara‘s friends to
stay out of his business and to tell Barbara that she is a ‗dead bitch.‘ On October
20, 1986, he confronted her again at a neighborhood market, throwing a liquid into
her face. After cursing at her, he knocked her down and kicked her several times
as she was on the ground. He escaped from the police on his motorcycle.
―On October 29, 1986, defendant entered the Mabrey house about 3:00 a.m.
with a friend named Kenny and confronted Leslie Morgan and Dellane, slapping
the latter in the face. He pointed the pistol at Barbara, telling her not to get near
him and saying that she ‗better not go to court and testify against him or his
people‘ or else they were going to ‗take care of‘ her, and that she would be killed
slowly, shooting her arms off first and then her legs. He also ordered Leslie
Morgan to leave, forcing him to flee in his underwear. He pointed a .45-caliber
pistol towards the floor as he left Dellane‘s room. He told Darnell Mabrey ‗don‘t
do anything‘ as he pointed the gun in Darnell‘s direction. He left the residence.
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―Defendant was arrested for the October 29th incident, and wrote Barbara a
letter from jail requesting that she drop the charges. He was eventually released
on bail.
―While at home with Dellane, Darnell, Sean, Stacey, Valencia and Dexter,
Barbara received a visit from defendant on December 6, 1986, who apologized to
her, although Barbara did not accept the apology. He came over with his two pit
bull puppies, which had been placed in the yard, and, when he discovered one of
them to be missing, angrily began accusing Darnell, Sean and Steve Early (who
was also at the house) of taking the puppy. Denying he had taken the dog, Early
left in his car with defendant close behind. As defendant left he told those present
they had better find his dog or they would all be dead. Defendant then shot
through Early‘s back window, all the while saying, ‗you stole my dogs, you
motherfucker.‘ He also said, as he was leaving, that they had better find his dog or
they would all be dead.
―Early the next day, on December 7, 1986, defendant and Rita Lewis went
to the Mabrey house, asking Barbara not to testify against him in court, where she
was scheduled to appear on December 9. He also talked about Barbara‘s
involvement in taking his dogs. Later that evening, Stacey‘s car was hit by a car
driven by Vanessa Walker. A car with defendant, Dolores Walker, and two men,
‗Billy the Kid‘ and William Henderson, drove up to the scene. Defendant got out
of the car with a pistol in his hand and pistol-whipped Stacey‘s friend Perry. He
kicked Dolores out of the car, saying something about a dog. Barbara heard him
say that ‗you Stone City niggers‘ — referring to the Stonehurst area of Oakland —
‗better get my dog or somebody‘s going to die.‘ Later he told Dolores Walker that
‗its [sic] going to be some bullshit tonight.‘
6
―In the early morning hours of December 8, 1986, defendant returned to the
Mabrey house. Stacey, Barbara and Leslie Morgan all identified defendant as the
shooter that morning. They all identified Lewis as his accomplice.
―According to this testimony, defendant was carrying an Uzi carbine in his
hand and Lewis was holding a .38-caliber revolver. Stacey Mabrey went to his
room and hid near the closet as defendant looked past him in the room and asked,
―where‘s Chuck,‖ Stacey‘s younger brother, who normally slept in the room.
Stacey heard several more shots. Urged by Lewis to leave, defendant left the
house, limping and holding on to Lewis and another person who helped him into a
car.
―Barbara also woke up to gunshots and heard Dellane screaming, ‗no,
Moochie, don‘t.‘ [‗Moochie‘ was defendant‘s nickname.] She saw Lewis
pointing a gun and telling defendant to get out of the way. Lewis had a pistol in
her hands and Barbara heard more gunfire before she escaped out of the house by
the rear.
―Leslie Morgan testified that defendant stood at close range as he shot
Dellane, saying, ‗this is for you, bitch.‘ He also shot Valencia in the head. Leslie
grabbed him and struggled with him, knocking his Uzi to the ground. Rita Lewis
shot Leslie in the shoulder as they struggled. After defendant found his gun, he
shot Leslie twice more in the arm and Leslie played dead. Leslie did, however,
see defendant straddle Dellane‘s body and heard another gunshot.
―Defendant and Lewis went to Beverly Jermany‘s residence at 2116 103d
Avenue in Oakland shortly after the murders, about 5:00 a.m. Defendant, who
was a second cousin of Jermany‘s, was lying on the porch and could not walk. He
was in pain and only semiconscious. Lewis told Jermany that she had accidentally
shot him. She was carrying a pillowcase. Jermany asked Lewis whether it
contained drugs and she said it did not. She took the pillowcase outside and did
7
not return with it. Jermany eventually notified the police that defendant was at her
house, and he and Lewis were apprehended.
―The murder weapons were found in a pillowcase in the backyard of
Jermany‘s house. There was an Uzi, a Smith and Wesson .357 handgun and a .38-
caliber Taurus revolver. The Uzi had a twenty-five-round capacity and was
loaded with one round in the chamber and four rounds in the magazine. The .357
handgun was loaded and contained three live rounds and three spent rounds. The
.38-caliber revolver was loaded with two live rounds and four expended
cartridges. One slug recovered at the murder scene was fired from a Smith and
Wesson .357. Other bullet fragments could have been fired by either a Smith and
Wesson or a Taurus.
―Burned clothing was recovered from the fireplace. Blood found on tennis
shoes recovered from 2116 103d Avenue matched Leslie Morgan‘s blood. One of
the tennis shoes could have made a shoe print found on Barbara Mabrey‘s front
door.
“B. The Defense
―The defense was characterized by differing strategies by trial counsel and
by defendant. Defendant was the first witness for the defense. Taking the stand
without a recess, and over defense counsel‘s protest that he wanted time to speak
with him to find out what questions to ask, defendant testified generally that he did
not commit the murders. He declined to answer questions about who had shot
him, and testified that he was shot in the leg between midnight and 5:00 a.m. in an
incident at Scotty‘s liquor store, rather than at Barbara Mabrey‘s home. Defendant
claimed that he had nothing to do with the shooting at the house the morning of
December 8, 1986, and never threatened any of the Mabreys. He had gone to his
cousin‘s house after being wounded because he believed there might be warrants
8
for his arrest related to other matters. He also testified that he was a victim of
mistaken identity, and that it must have been some other ‗Moochie‘ who had
committed the murders.
―The thrust of the defense presented by trial counsel, on the other hand, was
that defendant‘s mental impairment from drug and alcohol intoxication at the time
he committed the murders was such that he lacked the premeditation and
deliberation necessary for a first degree murder conviction. A urine screen and
qualitative blood analysis had been performed on blood drawn from defendant on
December 8, 1986. Defendant had alcohol in his blood, and cocaine and
morphine, a metabolite of heroin, in his urine. A quantitative analysis was never
performed, so the exact amounts of alcohol, heroin, and cocaine defendant had
consumed could not be estimated. Dr. Paul Herrmann explained the effects that
these substances can generally have on the central nervous system. Alcohol and
heroin, both depressants, and cocaine, a stimulant, whether consumed separately
or in combination, can have a deleterious effect on motor skills and mental
functioning, even at very low levels. Testimony to the same effect was provided
by Dr. Fred Rosenthal, who also listed sleep deprivation as an additional factor
affecting coherent thought processing. Trial counsel also presented a number of
witnesses acquainted with defendant for the apparent purpose of demonstrating
that he tended to act impulsively.
“C. Penalty Phase
―1. Prosecution Evidence in Aggravation
―The prosecution introduced evidence that defendant had been convicted of
three prior felonies: assault with a deadly weapon, in violation of section 245,
subdivision (a), on May 8, 1981; receiving stolen property, in violation of section
9
473, on August 5, 1981; and assault on a police officer in violation of section 243,
subdivision (c), on April 7, 1983.
―Evidence of a number of instances of uncharged violent conduct was also
introduced. While in juvenile hall in October 1973, defendant hit a counselor and
spit on him as he was trying to run away from the facility. He had just been
brought down for disciplinary problems from one of the camps to a more secure
facility.
―Defendant, when he was a juvenile, discharged a shotgun into Faye
McPherson‘s residence on December 26, 1975. The McPhersons had been his
neighbors for 11 years and had not previously had any problems with him. The
blast damaged the walls above her child‘s crib.
―On March 20, 1979, defendant was involved in a high-speed chase with
several San Francisco police officers. When the police finally stopped his
motorcycle, he got off and a struggle ensued, with defendant punching and kicking
the officers. He hit one of the officers with clenched fists and kicked him as well.
He also tried to run over another officer with his motorcycle, getting within three
to five feet before the officer jumped out of the way.
―On December 20, 1979, defendant assaulted Oakland Police Officer
Rosemary Dixon while she was working at the warrant division at the station
house; she suffered serious injuries as a result of the assault.
―Defendant raped and sodomized Jaunell T., a former lover, on May 21,
1980.
―On January 22, 1985, while in maximum security custody, defendant got
into a fight with another inmate. He did not stop fighting when ordered and
eventually had to be subdued with Mace.
―On July 12, 1985, he fought with another inmate while they were being
transported to jail from court.
10
―On December 16, 1987, while in custody for this case, defendant refused
to go to court and started swinging at one of the correctional officers. He gave
Deputy Charles Utvick a glancing blow to the side of the head. He made a
statement to Deputy Mark Johnson that he was going to kill him or have him
killed, and that he would have the rest of the deputies taken care of as well.
―Several instances of violent behavior while defendant was incarcerated at
state prison were introduced. On December 9, 1981, while in a visiting room, he
grabbed his wife, Terry West, by the neck and threw her against the wall. On
February 19, 1982, defendant struck a correctional officer in the jaw. On June 24,
1982, he spit on Correctional Captain Steven D. Lawrence several times after
Lawrence meted out a 30-day loss of privilege following a disciplinary hearing.
Shortly thereafter when he got back to his cell from the disciplinary hearing he
threw some fecal matter at Correctional Officer Roy Wade Gowin, hitting Gowin
in the face. He then started hitting Gowin and another officer, swinging the
handcuffs during the struggle. Gowin was struck twice by the handcuffs during
the struggle and required medical treatment for the cuts on his forehead and
eyebrow. Defendant also bit him.
―On September 25, 1982, while in jail, defendant struck a deputy sheriff in
the face with a closed fist. After the deputy sprayed defendant in the face with
Mace, defendant hit the deputy again in the face with his fists. The deputy
suffered lacerations of his chin and left eye and several cracked ribs, and lost time
from work for about two weeks.
―2. Defense Mitigation Evidence
―Defendant told the trial court that he did not want to put on any mitigating
evidence. Over his protest, trial counsel indicated that he had, and would put on,
two mitigation witnesses to show that defendant was under the influence of
11
extreme mental or emotional disturbance at the time of the murders and that he
lacked the ability to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law as a result of mental disease or defect, or the
effects of intoxication. Dr. William D. Pierce, a clinical psychologist, and Samuel
Benson, Jr., a psychiatrist, testified in mitigation. Defendant did not.
―Dr. Pierce reviewed defendant‘s school records, juvenile court records,
adult criminal history records, and records relating to the murders. He opined that
defendant was mentally ill and had been so for a long time, suffering from
delusional paranoid disorder, psychoactive substance abuse disorder, paranoid
schizophrenia, impulsive personality disorder, and an organic personality
syndrome of an explosive type. His delusional paranoid disorder was of a
persecutory type. His mental problems started as early as kindergarten, and were
characterized by uncontrolled behavior. Defendant never received any treatment
for his disorders, either in or outside of custody. His behavior was characterized
by mistrust, paranoia, and the inability to control aggressive acting out. Alcohol,
cocaine and heroin abuse intensified these effects, further reducing his ability to
control his impulses and behavior. His condition was chronic.
―Dr. Benson similarly opined that defendant was suffering from a mental
defect and from a mental illness at the time of the commission of the murders. His
basic problems, which included an intermittent explosive personality disorder,
organic personality disorder, persecutory delusional disorder, and cocaine-induced
delirium, were aggravated by intoxication. Defendant was paranoid and
delusional in the courtroom, and perceived ‗the Judge, the district attorney, his
attorneys, [and] Dr. Pierce . . . as being against him.‘ ‖ (Welch, supra, 20 Cal.4th
at pp. 722–728, fn. omitted.)
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III. JURY MISCONDUCT
We first consider Welch‘s claim that improper contacts between jurors and
one or more bailiffs gave rise to prejudicial jury misconduct. We conclude, as did
the referee, that there is no credible evidence of any such misconduct.
We have recognized that ―a nonjuror‘s tampering contact or communication
with a sitting juror[] usually raises a rebuttable ‗presumption‘ of prejudice.
[Citations.]‖ (In re Hamilton (1999) 20 Cal. 4th 273, 295.) If we find misconduct,
we proceed to determine whether that misconduct was prejudicial to defendant.
We have identified two tests for prejudice, and ―[t]he judgment must be set aside
if the court finds prejudice under either test.‖ (In re Carpenter (1995) 9 Cal. 4th
634, 653.) First, we ask whether the external communication is so inherently
prejudicial that it is substantially likely to have biased the juror. This ―inherently
prejudicial‖ standard is objective and is satisfied when ―the extraneous
information was so prejudicial in context that its erroneous introduction in the trial
itself would have warranted reversal of the judgment.‖ (Ibid.) If we find no
inherent prejudice, then we apply the ― ‗circumstantial‘ test‖ for prejudice,
recognizing that ―the totality of the circumstances surrounding the misconduct
must still be examined to determine objectively whether a substantial likelihood of
actual bias nonetheless arose.‖ (Id. at p. 654.)
Welch alleges two types of improper bailiff communications: (1) the
bailiffs told jurors that Welch had urinated in the stairwell, and (2) the bailiffs
communicated to jurors that Welch or his confederates had threatened witnesses.
A. Urine in the Stairwell
During Welch‘s trial, bailiffs escorted jurors down a stairwell from the jury
room on the seventh floor to the courtroom one floor below. Inmates, including
Welch, were escorted through the same stairwell. Several jurors and the primary
13
bailiff, Deputy Dimsdale, recalled seeing or smelling urine in the stairwell during
Welch‘s trial.
The referee found that Deputy Dimsdale believed Welch had urinated in the
stairwell and reported his concern to the judge, but not the jury. The trial record
reveals that the judge asked Welch, outside the presence of the jury, to control his
bladder problems because ―the bailiff‖ was concerned about him urinating in the
stairwell. However, the referee found no credible evidence that Deputy Dimsdale
communicated to jurors that Welch was the source of the urine. Deputy Dimsdale
testified that he remembered frequently seeing urine in the stairwell during
Welch‘s trial, that jurors mentioned the urine, but that he never brought urine to
the jurors‘ attention.
Several jurors remembered urine in the stairwell. Juror J.G., a witness the
referee found mostly credible, remembered being warned to avoid stepping in
urine in the stairwell but did not recall who had given the warning. Two other
jurors, B.W. and J.C., remembered a bailiff commenting about the urine, but the
referee found neither juror credible. B.W. remembered smelling urine in the
stairwell and recalled the bailiff saying the urine must have come from an inmate.
The referee gave B.W.‘s testimony ―very little weight‖ due to his ―clear bias,‖
noting that B.W. had testified that he had compassion for Welch and that his
memory was affected by open-heart surgery. J.C. testified that someone, perhaps
a bailiff, told jurors there was urine in the stairwell and recalled someone saying
Welch was the source. J.C. could not remember who made either statement, but
believed the purpose might have been to detract from Welch‘s competency. The
referee found J.C.‘s testimony not credible, reasoning that no other juror
corroborated his testimony and that J.C. was confused, equivocal, and easily led
while testifying. Overall, the referee found no credible evidence that any bailiff
had communicated to jurors that Welch had urinated in the stairwell.
14
Welch contends that ―[d]iscussions regarding urine in the stairwell clearly
took place in the escorting bailiff‘s presence.‖ Even if true, however, such
discussions did not necessarily constitute improper communication by the bailiff
or misconduct by the jurors. Deputy Dimsdale acknowledged that jurors
mentioned the urine but testified that he did not bring it to their attention, and the
referee found his testimony credible. Nor does the fact that that Deputy Dimsdale
believed Welch urinated in the stairwell and brought it to the judge‘s attention
substantiate the claim that he also communicated this belief to jurors. ―[W]e
generally defer to the referee‘s factual findings and ‗give great weight‘ to them
when supported by substantial evidence.‖ (In re Bacigalupo (2012) 55 Cal. 4th
312, 333.) Here we have no reason to question the referee‘s determination that
Deputy Dimsdale did not engage in improper communications with jurors.
B. Witness Threats
Three jurors recalled some variation of a discussion among jurors during
trial that witnesses felt threatened by Welch or his supporters. However, the
referee found ―no evidence that the bailiff was the source of any information about
threats.‖ To the extent that jurors held such beliefs, the referee attributed the
beliefs to information obtained through legitimate means. Jurors heard Barbara
Mabrey testify at trial that Welch had threatened her in an attempt to dissuade her
from testifying against him regarding an earlier assault. Additionally, the
prosecutor, James Anderson, spoke to jurors about safety concerns after the case‘s
completion. The referee reasoned that Barbara Mabrey‘s testimony, coupled with
the posttrial conversation with the prosecutor, explained the jurors‘ memories
concerning witness threats.
Welch takes exception to the referee‘s finding that no bailiff communicated
that Welch threatened witnesses, but he does not provide evidence to the contrary.
He points to Juror J.C., who testified that all of the jurors participated in
15
conversations regarding ―whether or not petitioner was capable of threatening the
jurors because evidence at trial indicated he had actually made threats against
witnesses.‖ But this testimony is not inconsistent with the referee‘s determination
that the jurors perceived witness threats based on Barbara Mabrey‘s testimony and
the prosecutor‘s posttrial statements. Moreover, as Welch concedes, J.C. could
not remember the source of the information regarding witness threats.
C. Welch’s Other Proposed Findings
Welch also contends that ―jurors had an unusually close relationship with
the bailiffs, particularly Deputy Dimsdale, who was assigned to petitioner‘s trial
court.‖ He claims, for example, that testimony at the evidentiary hearing (on
which the referee did not make findings) suggests bailiffs drove jurors to shopping
and lunchtime excursions and that jurors gave Deputy Dimsdale a card and $75
bond to celebrate his daughter‘s birth. This evidence, he claims, ―tend[s] to
corroborate petitioner‘s contention that bailiffs communicated the improper
information that petitioner urinated in the stairwell and that witnesses had been
threatened by petitioner and/or his supporters.‖ This argument raises no new
claim of misconduct. The fact that the referee made no findings on these
associations between the bailiff and the jury indicates the referee‘s view that these
incidents were not pertinent to the jury misconduct claims, and we have no reason
to suppose otherwise.
We therefore conclude that Welch‘s juror misconduct claim is without
merit.
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE
A. Referee’s Findings
1. Did trial counsel adequately investigate potential evidence in
mitigation during the penalty phase that Welch had been the victim
of serious child abuse?
At the evidentiary hearing before the referee, one of Welch‘s trial attorneys,
Alexander Selvin, testified at length. As the referee‘s report recounts: ―The
attorneys‘ penalty phase strategy was to urge the jury not to execute a mentally ill
person. This proved difficult, because, as Mr. Selvin testified, Welch was
impossible to work with. Mr. Selvin believed this was because, in Selvin‘s
opinion, Welch was mentally ill. Welch, his parents, and some other relatives
were totally uncooperative. The attorneys explained to family members that the
legal team needed social history and background information from them, and set
up at least four or five appointments for the family to come in. They never came.
It became obvious to the attorneys after the family members failed to show up for
the first two or three times that they would not cooperate. The attorneys even
went to Welch‘s mother‘s home, to no avail. When the attorneys saw Mrs. Welch
in court, they told her they‘d like to speak to her; there was always some excuse
why she could not meet with them. The attorneys felt that she clearly did not want
to talk to them. Indeed, the attorneys felt Welch was in control of his family and
that he did not want them to cooperate with the attorneys. The attorneys felt that
the family was uncooperative, either because they were trying to be helpful to
Welch or were afraid of him. Whatever the reason, the attorneys were unable to
get any information from Welch, his family or anyone else.‖
Instead, trial counsel attempted to support the mental health defense by use
of juvenile and adult probation reports obtained from the district attorney‘s office,
as well as school records. The attorneys felt they had enough information from
17
the reports to support their mental illness mitigation defense. Dr. Pierce, the
mental health expert, said he was satisfied there was enough to support that
penalty phase argument. The referee found Selvin to be a credible witness.
The referee found that trial counsel‘s efforts were ―adequate‖ with respect
to contacting Welch‘s parents. The referee found that Welch‘s mother, Minnie
Welch, would not have been available at Welch‘s trial, notwithstanding her
testimony to the contrary at the reference hearing. The referee found her not
credible on that point in light of the fact that she broke various appointments with
trial counsel at the time. Welch contends that the referee erred in this regard. He
argues that counsel‘s inability to meet with her was not dispositive and that given
her age, lack of resources, and disadvantaged background, her failure to keep
appointments at counsel‘s office should not have deterred counsel from pursuing
her as a social history witness. But the referee was in a position to judge the
credibility of Minnie Welch‘s testimony that she would have testified at trial, and
substantial evidence supports the referee‘s conclusion that her testimony was not
credible.
The referee nonetheless found that ―the trial attorneys, in ending their
efforts when stonewalled by Welch and his parents, conducted an inadequate
penalty phase investigation. Competent counsel would have sought (either
themselves or through an investigator) to obtain social history information from
other sources about Welch‘s mental health, child abuse and social history.‖
Specifically, the referee found that ―the trial attorneys did not meet prevailing
professional norms at the time of trial when they failed to contact and obtain social
history information from Cathie Thomas (Welch‘s sister), Sarah Perine (Welch‘s
maternal aunt) and Roy Millender (Welch‘s maternal uncle) — all of whom were
available to testify at the time of Welch‘s trial.‖
18
The referee further found that ―the penalty phase investigator, Ms.
Lesmeister, failed to contact Welch‘s sibling, aunts and uncles. Welch‘s attorney,
Mr. Selvin, knew or should have known about this hole in the investigation: He
testified he was not aware of any work product produced by Ms. Lesmeister, and
did not see any in the file. Nor was there evidence the trial attorneys themselves
ever undertook to contact other family members. There were no interview reports
with social history or mitigation witnesses contained in the trial attorneys‘ files.
Trial counsel did not specify which ‗family‘ members they attempted to contact
other than that Mr. Selvin recalled setting up an appointment for ‗someone else,‘
possibly Welch‘s brother or uncle. Mr. Selvin could not recall, however, anyone
on the team performing or obtaining any social history interviews, any statements,
affidavits, declarations, or witness statements.
―Mr. Selvin conceded that even if Welch was difficult, paranoid or
uncooperative it was still the attorneys‘ duty to conduct a mitigation investigation.
Yet Welch‘s trial counsel decided that since they were not getting cooperation
from Welch and his parents, to go with what they had, which was, essentially, the
records. They thought they had enough there and if the jury did not believe Welch
was mentally ill, nothing they could do would make a difference at the penalty
phase once he had been convicted at the guilt phase. The Referee finds trial
counsels‘ reasoning did not absolve them of their duty to adequately investigate
evidence in mitigation at the penalty phase especially in light of the evidence that
the trial attorneys were aware that they needed to talk to other family members.‖
The referee further found that ―Welch‘s attorneys, in failing to seek social
history information from members of Welch‘s community, did not conduct an
adequate penalty phase investigation. Coworkers, teachers, classmates, neighbors
or other professionals (such as probation officers) had encounters with Welch in
19
his developmental years and were available. The attorneys should have directed
their investigator to pursue these potential witnesses.‖
The Attorney General disputes the referee‘s finding that Welch‘s counsel
performed deficiently in failing to interview Welch‘s sister Cathie Thomas, his
aunt Sarah Perine, and his uncle Roy Millender. The Attorney General argues that
the only way to establish contact with Welch‘s extended family was through
Welch or his parents, none of whom cooperated at trial. ―It took habeas counsel
years to contact Sarah Perine and Roy Millender, even with the belated
cooperation of Welch, his sister and his mother. For that reason respondent
excepts to the finding that counsel were ineffective in determining that the
knowable or available family members would not cooperate in the development of
penalty phase evidence.‖
In addressing this contention, we note that the referee came to somewhat
inconsistent conclusions about Cathie Thomas‘s availability at trial, as discussed
below. But we have no reason to question the referee‘s findings that, with
adequate investigation, counsel would have discovered social history information
from Sarah Perine and Roy Millender. After hearing and considering all the
testimony, the referee did not find that it would have been difficult or impossible
for counsel, at the time of trial, to learn the identities or whereabouts of Perine and
Millender or to secure their cooperation, and nothing in the record impels us to
make such a finding.
The Attorney General also objects to the referee‘s finding that counsel was
deficient in failing to contact community members outside of Welch‘s family who
knew Welch as a child. But, as explained below, the referee concluded that
competent counsel would not have introduced the testimony of either of the two
nonfamily social history witnesses who testified at the evidentiary hearing,
20
Konolous Smith and Glen Riley. Our focus, therefore, is on the family members
who would have testified if counsel had contacted them at the time of trial.
2. If trial counsel’s investigation was inadequate, what additional
information would an adequate investigation have disclosed?
The referee found that ―had there been an adequate investigation,
information about severe child abuse would have been disclosed at the time of the
penalty phase from social history witnesses Sarah Perine (Welch‘s maternal aunt),
Cathie Thomas (Welch‘s sister), Konolus Smith (Welch‘s childhood friend) and
Roy Millender (Welch‘s maternal uncle).‖
The referee found ―that additional information from these witnesses would
have disclosed that Welch‘s father inflicted serious physical abuse upon Welch as
a child to the time he was 17 years of age‖ and that ―the following facts would
have been discovered and could have been introduced at the penalty phase at trial:
―Welch was born on March 21, 1958, a year before his younger brother,
Dwight, who was born on March 1, 1959 and 1½ years after his sister, Cathie, who
was born on October 1, 1956. Welch was known as ‗Moochie.‘
―Sarah Perine saw Welch‘s father spanking him with a belt, extension cord
or shoe, or flicking his finger on Welch‘s head about once a week until she moved
to Los Angeles in 1961. Sarah also saw Welch shake and tremble around his
father.
―According to Cathie Thomas their father, David Sr., when he was drunk
became angry, violent and abusive to her mother and Welch. He would leave on
Friday night and show up drunk on Sunday night. From her bedroom she could
hear her father punch her mother with his fists. When she would enter the room
she saw her father hitting her mother.
―Cathie Thomas also heard her father hit Welch with a belt or extension
cord in the boy‘s room. This continued from the time Welch was six or seven to
21
age 17. These beatings would last about five minutes, and she saw marks on her
brother‘s arms from being hit. Her father hit Welch more often when he was
drunk, but also when he was sober; sometimes he would hit Welch for a reason,
sometimes for no reason at all.
―The frequency of the physical abuse diminished when Welch was 12 or
13, once David Sr. began working in the merchant marines, and was home for
only four to six weeks at six-month intervals. When David Sr. was home, he
would drink on the weekend and beat Welch.
―Welch‘s contact with his father further diminished after the age 12 or 13
when his parents divorced between 1970 and 1971. Welch‘s father would still
come back to their home on La Prenda, in Sobrante Park, off and on after the
divorce. He continued to hit Welch during this time.
―The last time David Sr. tried to hit Welch, Welch was 17. For the first
time, Welch fought back. The confrontation spilled into the hallway and Welch
and his father started to fight. Immediately after the fight, Welch left the house
with a shotgun and shot out the window of their car and the windows of the
McPherson‘s house down the street.
―Konolus Smith, Welch‘s childhood friend, saw Welch‘s father hit Welch
in public twice: once when Welch was under the age of 10 and David Sr. arrived
at school and gave Welch [a] ‗kind of a slap upside the head‘; and once when
Welch was a teenager hanging out with his friends, and David Sr. came in and
‗slapped him on the back of the head,‘ causing Welch to f[a]ll down ‗for a couple
of seconds‘ and appear ‗stunned.‘ However, there was no evidence of any head
injuries suffered as a result or that Welch was knocked unconscious. David Sr.
also threw a bottle from a car while Welch was walking down the street.
―Roy Millender, Welch‘s maternal uncle, had seen Welch‘s father
discipline Welch by hitting him and making him ‗go to jail‘ in the closet. Welch
22
also stayed with his uncle, on weekends and for as long as six weeks when school
was out. Welch stayed with his uncle off and on until he was 16 years of age.‖
3. If an adequate investigation would have yielded evidence that
Welch suffered serious child abuse, would a reasonably competent
attorney have introduced such evidence at the penalty phase of the
trial?
The referee found that ―faced with the prosecution‘s case in aggravation, a
competent defense attorney would have presented some of the evidence that would
have been revealed after adequate investigation of child abuse. That evidence
would help to mitigate the aggravating factors in the case as well as to engender
sympathy for Welch.‖ Specifically, the referee found ―that a reasonably
competent attorney would have introduced the testimony of lay witnesses Cathie
Thomas, Sarah Perine, and Roy Millender about the serious child abuse Welch
suffered. In particular, competent defense counsel would have introduced the
following evidence:
―Cathie Thomas:
―She heard her father hit Welch with an extension cord when Welch was
six or seven years old.
―The beatings would last about five minutes.
―She observed marks on Welch‘s arms.
―Her father hit Welch more often when he was drunk but also when he was
sober.
―Sometimes her father would hit Welch for no reason at all.
―The beatings lasted until Welch was 17 years old, but with less frequency
from age 12 through 17 when Welch‘s father worked for the Merchant Marines.
―Welch did not do well in school.
―As a small child Welch had a speech impediment.
―Welch was punished more severely than his younger brother Dwight.
23
―Sarah Perine:
―Welch‘s father was violent to Welch‘s mother.
―She saw Welch‘s father slap and beat Welch‘s mother when she was
pregnant. On one occasion she saw Welch‘s father kick Welch‘s mother when she
was on the couch.
―She saw Welch‘s father spank Welch with a belt, extension cord or shoe
once a week.
―As a little boy, Welch would nervously shake when he was around his
father.
―When he was a little boy Welch lived in poverty and was malnourished.
―Roy Millender:
―Welch‘s father would discipline Welch by hitting him and making him ‗go
to jail‘ (the closet).
―When Welch was a teenager and having problems at home Welch would
stay with Mr. Millender for periods of up to six weeks; this occurred off and on
until Welch reached the age of 16.
The referee found it unlikely that a competent defense attorney would have
called Konolus Smith as a witness. ―The three incidents he testified to did not
amount to serious child abuse and his previous convictions of robbery and
homicide would outweigh any value of his testimony. In addition, his testimony
may have been more hurtful than helpful in that he testified that Welch picked
fights all the time. If defense counsel called Mr. Smith, this adverse information
would have to have been disclosed to the prosecution in discovery, and the
prosecution would have used it against Welch in rebuttal.‖ The referee also
credited Selvin‘s testimony that he would not have called Glen Riley as a witness
because of unfavorable information in a probation report.
24
The referee was somewhat inconsistent in her conclusions about the
availability of Cathie Thomas at the time of trial. While including Thomas‘s
testimony among the evidence that a competent attorney would have introduced at
trial, the referee also stated that she was ―not convinced Ms. Thomas would have
cooperated any more than her mother did,‖ notwithstanding Thomas‘s testimony
at the reference hearing to the contrary. The reason for the referee‘s skepticism
was that Thomas‘s testimony that she would have testified at trial ―contradicts Mr.
Selvin‘s testimony: although counsel did not testify that he had talked specifically
to Mrs. Welch or Cathie Thomas during that visit, he was clear that no one from
the family was cooperative.‖ Welch points out that Selvin never affirmatively
testified he had been to Welch‘s home and that there was no evidence Selvin‘s
statement that ―no one in the family was cooperative‖ specifically applied to
Cathie Thomas.
The question whether Cathie Thomas would have testified at trial if
contacted involves a determination of credibility. Substantial evidence supports
the referee‘s finding that a competent attorney would have introduced Thomas‘s
testimony. That evidence includes Thomas‘s testimony regarding her willingness
to testify, her testimony that ―[s]omeone came to the house‖ but ―nobody ever
talked to me,‖ and the lack of any indication in Selvin‘s testimony that Thomas, in
contrast to Minnie Welch, had been specifically contacted and refused to
cooperate during trial. Nonetheless, the referee‘s conflicting findings on
Thomas‘s availability undermines somewhat our confidence that competent
counsel would have been able to discover and produce her testimony at trial.
The referee also considered how the evidence of child abuse and related
testimony would have affected the mental illness evidence that was presented at
trial. The two experts who had testified regarding Welch‘s mental impairments,
Dr. Pierce and Dr. Benson, also testified at the reference hearing. The referee
25
found that the evidence of child abuse as well as other social history evidence
would have significantly influenced Dr. Benson‘s testimony. ―[E]ven without
[additional] neurological testing data, had Dr. Benson been provided additional
information about Welch‘s early childhood, Dr. Benson would have changed his
diagnosis from organic brain disease (which at the time he vainly wished he could
have tested to confirm) to traumatic brain disease. Dr. Benson at trial had already
identified Welch‘s poor attention span, his poor judgment, his exaggerated
response to confrontation and lack of control as evidence to support his diagnosis
of traumatic brain disease. Many new facts would have solidified Dr. Benson‘s
diagnosis: information that as a child Welch‘s appearance was sickly, he had
trouble breathing, he had trouble keeping up in school, he had difficulties
controlling his urine output, he lived a life of poverty, he was malnourished, and
he was singled out for physical abuse by his father.‖
The referee further found that ―Dr. Benson would also have provided
additional expert opinion that Welch‘s sickliness and trouble breathing was
consistent with brain damage and Welch‘s malnutrition could have led to a slower
rate of development and growth. The referee finds that this new information
would have also provided a factual basis for Dr. Benson‘s opinion that Welch‘s
brain impairment was traceable to the abuse Welch suffered at the hand of his
father.
―Dr. Benson testified at the reference hearing that only the terminology of
his diagnosis would have changed had he known in 1989 what he now knows
about Welch‘s social history. Nonetheless, his testimony would have been
somewhat different. Dr. Benson‘s diagnosis would have been more certain and
more grounded in fact. An expert‘s opinion is only as good as the facts upon
which his or her opinion is based. More basis in fact may lend more credibility to
26
an expert‘s opinion. Here, the opinion Dr. Benson offered the jury would have
been supported by additional facts testified to by the social history witnesses.‖
The referee further found that Dr. Pierce would not have changed his
diagnosis of delusional paranoid disorder, persecutory type, and impulsive
personality disorder, explosive type, which was based largely on Welch‘s
courtroom behavior.
The referee also considered the opinions of three new experts who did not
testify at trial: Dr. Karen Froming, Dr. Pablo Stewart, and Dr. Julie Kriegler. Dr.
Froming, after conducting neurological testing on petitioner in 2002 and 2010,
opined that ―Welch has problems with attention, memory and working memory,
tracking and manipulating information, and suppressing an over-learned response.
He also cannot figure out what the rules are in the environment he is in. He will
either perseverate on a response based on a misperception of the situation, or he
can‘t fathom the situation at all, or he comes up with something idiosyncratic in
response. Dr. Froming believes these results are consistent with impairments in
the frontal and temporal regions of the brain.‖
The referee found that because Welch refused to submit to testing in 1989
with Dr. Pierce and Dr. Benson, ―the additional diagnoses of Dr. Froming based
on neurological and psychological testing would not have been available at the
time of the penalty phase. [¶] . . . [¶] The fact that Welch later acquiesced to
testing — over a decade later, and after the trial‘s results were known — does not
retroactively change his behavior in 1989. He would not do it. Period.‖ The
referee therefore concluded that even if trial counsel had performed competently,
Dr. Froming‘s testimony would not have been available at trial.
The referee also found no evidence supporting Dr. Froming‘s conclusion
that the physical abuse suffered by Minnie Welch while pregnant with Welch
raised the level of cortisol, a stress-activated hormone, in her bloodstream ―or that
27
this was neuropsychologically toxic when and if it was transferred to Welch as a
developing fetus.‖ Welch takes exception to that finding, noting that a speech
impediment and lack of coordination showed he was neurologically impaired from
birth. But the referee, while not disputing the evidence that Welch had substantial
neurological impairments from a young age and perhaps from birth, found no firm
evidence that these impairments resulted from in utero exposure to his mother‘s
stress hormones. We accept the referee‘s finding.
The referee also gave ―very little weight‖ to the testimony of Dr. Pablo
Stewart, a forensic psychiatrist. Although Dr. Stewart criticized the diagnoses of
Dr. Benson and Dr. Pierce given at trial, his diagnosis did not significantly differ
from theirs. Moreover, ―his opinion is based on facts that were not proved at the
hearing, such as the allegation that Welch suffered open wounds after being hit in
the head by his father, and unfounded facts and an exaggeration of statements
made in the declarations by friends and family.‖ Welch takes exception to the
referee‘s finding that Dr. Stewart‘s testimony had ―questionable credibility,‖ but
we see no basis for challenging that finding. The referee concluded that Dr.
Stewart‘s assessment of the effects of child abuse on Welch was based on
numerous scars on Welch‘s face, forehead, and arms, but that Welch‘s frequent
fights could also explain those scars. Although the referee did not go into detail as
to why she found Dr. Stewart‘s testimony to be of questionable credibility, the
referee was in a better position to determine his credibility, and we have no reason
to question that determination.
For a similar reason, the referee discounted somewhat the testimony of Dr.
Julie Kriegler, a clinical psychologist, who interviewed Welch and his family and
reviewed records and declarations of Welch‘s family members and acquaintances.
The referee found unproven some of the facts on which Dr. Kriegler based her
opinion — in particular, that Welch suffered major head injuries as a result of his
28
father‘s abuse, that environmental toxins damaged Welch‘s nervous system, and
that Welch was injured in utero due to blows to his mother‘s abdomen.
Nonetheless, the referee found that ―competent counsel would have called a
clinical psychologist like Dr. Kreigler to testify, based on the additional
information from social history witnesses and clinical interview with Welch, to the
following:
―Welch has a genetic risk for schizophrenia and substance dependency.
―Welch‘s father was dependent on alcohol and his father‘s mother was also
known to be an alcoholic.
―Welch struggled in school and had a speech impediment which could be
markers of neurological impairment.
―Welch had a history of substance abuse starting as early as age 10-12.
―Welch was psychologically impaired as a result of serious child abuse. He
exhibited symptoms such as paranoia and a perception that people were out to get
him.
―Welch is neurologically compromised. This is based on a constellation of
symptoms exhibited by Welch as a child — his trouble breathing as an infant,
behavioral and academic difficulties in school, lack of psychomotor coordination,
his smaller size, and his speech impediment.
―As a result of protracted early trauma, Welch is severely
neuropsychiatrically impaired. His function, his thought process, and his
perceptions are also impaired. This is a result of a confluence of risk factors, the
mental illness, the neuro-cognitive dysfunctions and protracted trauma. The risk
factors include: his genetic risk for psychosis, mental illness and dysfunction, his
substance dependence, the fact that his parents are of low educational status and
came from poverty and that his father was raised in a severely abusive household
and his father was abandoned by his mother.‖
29
―As a result of witnessing the abuse of his mother and being raised by
compromised and dysfunctional parents, Welch suffered from dysregulation of his
nervous system resulting in Welch‘s inability to control his impulses, to tolerate
stress, delay gratification, make choices, self-soothe and stay calm.
―Welch exhibited symptoms of dysregulation such as lack of impulse
control, reactivity, dissociative states, anxiety, paranoia, and obsessive compulsive
behavior.‖
4. What Rebuttal Evidence Would Reasonably Have Been Available
to the Prosecution?
The referee addressed the question of potential rebuttal evidence by
focusing on the prosecution‘s mental health expert, Dr. Daniel Martell, a forensic
neurologist, whom the referee found to be ―a very credible witness.‖ ―Dr. Martell
noted that even without testing, Dr. Pierce and Dr. Benson observed the same
symptoms early in the case. Dr. Martell observed two kinds of problems:
psychiatric disorders and organic brain dysfunction. Some of the observed deficits
in testing (low I.Q. and problems in executive functioning) are symptoms of
organic brain dysfunction; paranoid ideation and delusions are symptoms of
psychiatric disorders. Indeed, Dr. Martell was struck by the consistency of the
description from the doctors over time: Everyone seemed to be describing the
same person, the same constellation of problems all the way back to the penalty
phase of the trial. Thus, Dr. Martell concluded, even though Dr. Pierce and Dr.
Benson did not have the benefit of the neuropsychological testing, they got the
fundamental diagnoses right and were validated by the subsequent doctors that
examined Welch.‖
Nonetheless, ―Dr. Martell found that Welch‘s behavior at the time of the
crime contradicted his doctors‘ testimony that his frontal lobe damage affected his
ability to control his behavior at the time of the murders. For example, Welch was
30
able to lie in wait, sit in his car and wait for the police to leave. Also, he brought a
fully loaded UZI machine gun to the crime scene — evidence of planning and
organization. Welch thought about what he wanted to do, brought a weapon
appropriate to the task, made sure it was loaded, and waited until the police left the
area.
―In addition Dr. Martell found there was a certain systematic approach to
his behavior during the crime. Welch went through the house stating, ‗Where is
Chuck at?‘ indicating Welch knew Chuck was not where he was supposed to be.
Welch said ‗This one‘s for you‘ before shooting the victims, which showed a
systematic pursuit to eliminate witnesses from both his trial and from what he was
doing that night. Dr. Martell opined that both of those things showed intact
planning, organization, and lack of impulsivity. Dr. Martell found that Welch‘s
prior threats to do exactly what he did is relevant too: it demonstrated that he had
a plan, he told people of his plan, developed it for a reason, and carried it out. Dr.
Martell noted that those are all frontal lobe executive control functions that, at that
time, were intact and operating effectively. Welch‘s choice of the time to commit
the crime — the middle of the night when the victims would be asleep and were
easier targets — again showed thinking and planning on how to murder a large
number of people. It was the best way to control the victims and to prevent them
from interfering with what Welch was trying to do. This was goal-directed
behavior. Finally, Welch‘s behavior after the crime — burning the clothing he
was wearing, putting the weapon[s] in a pillowcase and leaving it in a cousin‘s
yard — showed that Welch was cognitively intact enough to understand that he
needed to get rid of evidence that might later connect him to the crime. This was
organization, planning and goal-directed behavior which showed Welch was
functioning at a much higher level than the doctors testified he would have been
able to.‖
31
The referee accordingly found that ―had additional evidence about child
abuse and its effects on Welch been introduced at the penalty phase, the
prosecution would have introduced evidence to impeach and therefore rebut that
evidence like that offered by Dr. Martell. Dr. Martell contradicted Dr. Kriegler‘s
assertion that Welch was not in control of his actions because his psychiatric
impairments were affecting his behavior at the time of the crime in significant
ways.‖
Welch objects that Dr. Martell‘s testimony was not actually rebuttal
evidence because, Welch contends, he never put his state of mind at the time of
the crime at issue and would have sought to introduce only in a more general way
the mitigating evidence regarding child abuse, neurological deficits, and mental
illness. Nonetheless, at the penalty phase of a capital trial, testimony such as Dr.
Martell‘s may well have diminished the weight of the mitigating evidence in the
eyes of reasonable jurors by dissolving the link between Welch‘s child abuse and
mental illness and his commission of six murders. Thus, Dr. Martell‘s testimony
qualifies as penalty phase rebuttal evidence relevant to determining the
significance of the child abuse evidence.
Welch also objects to the referee‘s finding that Dr. Martell‘s testimony
supported the conclusion that Welch was engaged in deliberate, goal-directed
behavior, as opposed to impulsive conduct, when he committed the murders.
Welch points to declarations by his former girlfriend and codefendant, Rita May
Lewis, as well as others who had contact with Welch on the day and night of the
murders, observing that Welch was drinking alcohol and using cocaine and heroin,
and that the murders were ―impulsive and committed at a time when Welch was at
most semi-conscious.‖ But the jury at Welch‘s trial rejected defense counsel‘s
primary guilt phase argument that Welch‘s impairment from alcohol, cocaine, and
heroin foreclosed his capacity for premeditation and deliberation in commission of
32
the murders. (See Welch, supra, 20 Cal.4th at p. 725.) The trial record provides
substantial evidence in support of the referee‘s finding that the prosecution would
have introduced rebuttal evidence like Dr. Martell‘s testimony and that such
testimony would have suggested that Welch committed the murders in a deliberate
fashion.
B. Analysis
―An ineffective assistance claim has two components: A defendant must
show that counsel‘s performance was deficient, and that the deficiency prejudiced
the defense.‖ (Wiggins v. Smith (2003) 539 U.S. 510, 521 (Wiggins), citing
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
1. Deficient performance
―To establish deficient performance, a petitioner must demonstrate that
counsel‘s representation ‗fell below an objective standard of reasonableness.‘
[Citation.]‖ (Wiggins, supra, 539 U.S. at p. 521.) The adequacy of counsel‘s
representation must be evaluated against ―the professional norms prevailing when
the representation took place.‖ (Bobby v. Van Hook (2009) 558 U.S. 4, 7.)
―[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.‖ (Strickland, supra, 466 U.S. at pp. 690–691.)
In Wiggins, the high court found that counsel‘s investigation into the
defendant‘s social history was inadequate. (See Wiggins, supra, 539 U.S. at
pp. 523–534.) Counsel had obtained a psychologist‘s report that indicated
Wiggins‘s IQ and signs of a personality disorder but ―revealed nothing . . . of
petitioner‘s life history.‖ (Id. at p. 523.) Counsel had also obtained a presentence
investigation report and records from the Baltimore City Department of Social
Services (DSS) documenting Wiggins‘s history in foster care. (Id. at pp. 523–
33
524.) The high court held that counsel‘s decision not to further investigate
Wiggins‘s upbringing fell short of Maryland‘s capital defense standards at the
time and also ―fell short of the standards for capital defense work articulated by
the American Bar Association (ABA)—standards to which we have long referred
as ‗guides to determining what is reasonable.‘ Strickland, supra, at 688; Williams
v. Taylor [(2000) 529 U.S. 362, 396]. The ABA Guidelines provide that
investigations into mitigating evidence ‗should comprise efforts to discover all
reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.‘ ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93
(1989) (emphasis added). Despite these well-defined norms, however, counsel
abandoned their investigation of petitioner‘s background after having acquired
only rudimentary knowledge of his history from a narrow set of sources. Cf. id.,
11.8.6, p. 133 (noting that among the topics counsel should consider presenting are
medical history, educational history, employment and training history, family and
social history, prior adult and juvenile correctional experience, and religious and
cultural influences (emphasis added)); [citation].‖ (Id. at p. 524.)
Further, the DSS records showed that Wiggins experienced difficulties in
school and foster care, and that Wiggins‘s mother was an alcoholic and at least
once ―left him and his siblings alone for days without food.‖ (Wiggins, supra, 539
U.S. at p. 525.) The high court said ―any reasonably competent attorney would
have realized that pursuing these leads was necessary to making an informed
choice among possible defenses, particularly given the apparent absence of any
aggravating factors in petitioner‘s background.‖ (Ibid.) ―Even assuming
[Wiggins‘s attorneys] limited the scope of their investigation for strategic reasons‖
— counsel had decided to focus in the penalty phase on disproving Wiggins‘s
direct responsibility for the murder — ―Strickland does not establish that a cursory
34
investigation automatically justifies a tactical decision with respect to sentencing
strategy. Rather, a reviewing court must consider the reasonableness of the
investigation said to support that strategy.‖ (Id. at p. 527.)
Welch‘s penalty trial began in June 1989, just four months before
Wiggins‘s. (Wiggins, supra, 539 U.S. at p. 515.) Here, as in Wiggins, counsel had
obtained expert opinion on the defendant‘s mental health and two sets of records.
The experts, Dr. Benson and Dr. Pierce, conduct evaluations that indicated mental
illness but ―revealed nothing . . . of [Welch‘s] life history.‖ (Id. at p. 523.)
Welch‘s school records revealed ―problems at school, like difficulties
concentrating, in getting along with others, in getting counseling and studies.‖
Welch‘s juvenile and criminal history records showed that he ―grew up with the
Probation Department. Countless probation reports. They tracked him from his
first experience as a juvenile . . . .‖
Counsel made no further effort to seek social history information about
Welch after his parents refused to cooperate. Setting aside whether counsel made
adequate efforts to contact Welch‘s sister Cathie Thomas, the referee found that no
one on the defense team sought to contact his aunt Sarah Perine, his uncle Roy
Millender, or any of his teachers, classmates, coworkers, neighbors, probation
officers, or others who ―had encounters with petitioner in his developmental years
and were available.‖ Counsel decided to forgo additional investigation believing
that the records they had were enough and that ―if the jury did not believe
Petitioner was mentally ill, nothing they could do would make a difference at the
penalty phase.‖ But the referee found no evidence that contacting additional
witnesses would have been ―fruitless‖ or ―counterproductive‖ (Wiggins, supra,
539 U.S. at p. 525) or likely to yield ―only cumulative‖ information (Bobby v. Van
Hook, supra, 558 U.S. at p. 11). Even if counsel acted reasonably in focusing on a
35
mental illness defense, it is unclear why counsel believed Welch‘s family and
social history could not have aided that defense.
The referee also noted that Thomas Broome, who represented Welch before
Selvin took over the case, testified at the reference hearing that Welch‘s mother
Minnie ―told Mr. Broome that petitioner‘s father was very abusive towards her
and petitioner. Mr. Broome did not communicate this to Mr. Selvin or Mr. Strellis
[Selvin‘s cocounsel], or to Dr. Pierce. There also was no information regarding
this fact in his file.‖ Thus, although defense counsel was alerted early on to
Welch‘s childhood abuse, the information never reached Welch‘s penalty phase
counsel.
On this record, the referee concluded that ―the trial attorneys, in ending
their efforts when stonewalled by petitioner and his parents, conducted an
inadequate penalty phase investigation. Competent counsel would have sought
(either themselves or through an investigator) to obtain social history information
from other sources about petitioner‘s mental health, child abuse and social
history.‖ Relying on Wiggins among other cases, Welch makes a strong argument
that the referee‘s conclusion was correct. But we need not definitively resolve
whether counsel‘s performance was adequate because the high court has said ―[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.‖ (Strickland, supra, 466
U.S. at p. 697.) As explained below, Welch has not made a sufficient showing of
prejudice here.
2. Prejudice
In order to establish prejudice, a defendant ―must show that there is a
reasonable probability that, but for counsel‘s unprofessional errors, the result of
the proceeding would have been different.‖ (Strickland, supra, 466 U.S. at
36
p. 694.) A defendant ―need not show that counsel‘s deficient conduct more likely
than not altered the outcome in the case.‖ (Id. at p. 693.) Rather, he must show ―a
probability sufficient to undermine confidence in the outcome.‖ (Id. at p. 694.)
The high court has made clear that under some circumstances, failure to
introduce mitigating evidence of child abuse or other disadvantages is prejudicial.
In Williams v. Taylor (2000) 529 U.S. 362, the high court found deficient
performance and prejudice when trial counsel failed to investigate and introduce
―extensive records graphically describing Williams‘ nightmarish childhood,‖
which included the imprisonment of Williams‘s parents for ―criminal neglect of
Williams and his siblings.‖ (Id. at p. 395.) Williams‘s case involved considerable
aggravating evidence, including the robbery murder of an elderly woman and prior
convictions for armed robbery, burglary, and grand larceny. Nonetheless, the high
court found the failure to introduce the mitigating evidence was prejudicial. Even
if evidence that Williams turned himself in, expressed remorse for his actions,
cooperated with the police, and behaved well in custody ―may not have overcome
a finding of future dangerousness, the graphic description of Williams‘s
childhood, filled with abuse and privation, or the reality that he was ‗borderline
mentally retarded,‘ might well have influenced the jury‘s appraisal of his moral
culpability.‖ (Id. at p. 398.)
In Wiggins, the defendant was convicted of robbing and murdering a 77-
year-old woman. The only evidence offered in mitigation was that Wiggins had
no prior convictions. In finding defense counsel‘s inadequate investigation of
Wiggins‘s upbringing to be prejudicial, the high court said: ―Wiggins experienced
severe privation and abuse in the first six years of his life while in the custody of
his alcoholic, absentee mother. He suffered physical torment, sexual molestation,
and repeated rape during his subsequent years in foster care. The time Wiggins
spent homeless, along with his diminished mental capacities, further augment his
37
mitigation case. Petitioner thus has the kind of troubled history we have declared
relevant to assessing a defendant‘s moral culpability. Penry v. Lynaugh, 492 U.S.
302, 319 (1989) (‗ ―[E]vidence about the defendant‘s background and character is
relevant because of the belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvantaged background . . . may
be less culpable than defendants who have no such excuse‖ ‘) . . . .‖ (Wiggins,
supra, 539 U.S. at p. 535.) ―Had the jury been able to place petitioner‘s
excruciating life history on the mitigating side of the scale, there is a reasonable
probability that at least one juror would have struck a different balance.‖ (Id. at
p. 537.)
In Rompilla v. Beard (2005) 545 U.S. 374, the defendant had tortured his
murder victim and had suffered a number of prior felony convictions involving the
use or threat of violence. Against this considerable aggravating evidence, the
mitigating evidence consisted of brief testimony from family members pleading
for mercy and arguing lingering doubt. (Id. at p. 378.) The high court determined
that competent counsel would have uncovered evidence of borderline mental
retardation, organic brain syndrome and fetal alcohol syndrome, and a severely
abusive childhood in which Rompilla‘s father ―beat him when he was young with
his hands, fists, leather straps, belts and sticks,‖ and ―locked [him] and his brother
Richard in a small wire mesh dog pen that was filthy and excrement filled.‖ (Id. at
p. 392.) Rompilla went on to hold: ―This evidence adds up to a mitigation case
that bears no relation to the few naked pleas for mercy actually put before the jury,
and although we suppose it is possible that a jury could have heard it all and still
have decided on the death penalty, that is not the test. It goes without saying that
the undiscovered ‗mitigating evidence, taken as a whole, ―might well have
influenced the jury‘s appraisal‖ of [Rompilla‘s] culpability,‘ [citations], and the
likelihood of a different result if the evidence had gone in is ‗sufficient to
38
undermine confidence in the outcome‘ actually reached at sentencing [citation].‖
(Id. at p. 393; see also Sears v. Upton (2010) 561 U.S. 945 [granting a petition for
postconviction relief, vacating judgment, and remanding where trial counsel failed
to produce mitigating evidence of the defendant‘s abusive childhood and low
cognitive function, including his ability to suppress competing impulses]; Porter v.
McCollum (2009) 558 U.S. 30 [unanimously reversing penalty phase conviction
where trial counsel failed to introduce mitigating evidence that the defendant was
a Korean War veteran who had been traumatized by an abusive childhood and his
combat experiences].)
In this case, we must compare the evidence actually presented during the
penalty phase with the evidence that likely would have been presented if counsel
had further investigated Welch‘s social history. Our starting point is the
aggravating evidence, which was extraordinary even for a capital case. The six
murders themselves, two of small children, ―stood for decades as the largest mass
killing in Oakland‘s 160-year history.‖ (Bender & Harris, Oikos University
Killings Surpassed 1986 Mass Murder as Oakland’s Most Deadly, San Jose
Mercury News (Apr. 7, 2012).) Moreover, the jury learned of Welch‘s history of
persistent violence, including the assault and subsequent intimidation of Barbara
Mabrey and various other Mabrey family members and their friends, as well as the
rape and sodomizing of a former lover. The jury heard evidence of many
instances of Welch‘s violence in a correctional setting or against police officers
while resisting arrest, reflecting the fact that Welch had spent much of his life in
custody. (See Welch, supra, 20 Cal.4th at pp. 725–727.) Evidence of violence
while in custody can be particularly significant to capital juries, and the prosecutor
in closing argument highlighted Welch‘s future dangerousness based on his past
crimes. (See id. at p. 761.) No evidence presented at trial or at the evidentiary
hearing presented Welch in a positive light or as having any redeeming qualities.
39
The mitigating evidence from Welch‘s aunt Sarah Perine, his uncle Roy
Millender, and his sister Cathie Thomas (assuming for purposes of this analysis
that Thomas would have been available) would have described Welch as a victim
of child abuse. According to the referee, the evidence would have shown that
Welch‘s father repeatedly physically abused him over many years and that Welch
was psychologically impaired as a result, exhibiting persecutory paranoid
delusions. Welch also witnessed his father repeatedly abuse his mother. The
effects of this abuse were also manifested in and compounded by his neurological
impairment, as evidenced by his speech impediment, lack of coordination, struggle
in school, and inability to self-regulate. The effects of the abuse and the
accompanying impairment were further compounded by a history of substance
abuse starting as early as age 10 or 12 as a means of self-medication.
The referee found that this child abuse evidence would not have changed
the substance of Dr. Benson‘s diagnosis of Welch but would have changed ―only
the terminology of his diagnosis‖ from ―organic brain disease‖ to ―traumatic brain
disease.‖ ―Nonetheless,‖ the referee said, ―his testimony would have been
somewhat different. Dr. Benson‘s diagnosis would have been more certain and
more grounded in fact. An expert‘s opinion is only as good as the facts upon
which his or her opinion is based. More basis in fact may lend more credibility to
an expert‘s opinion. Here, the opinion Dr. Benson offered the jury would have
been supported by additional facts testified to by the social history witnesses.‖
We agree with the referee that ―[m]any new facts would have solidified Dr.
Benson‘s diagnosis: information that as a child petitioner‘s appearance was
sickly, he had trouble breathing, he had trouble keeping up in school, he had
difficulties controlling his urine output, he lived a life of poverty, he was
malnourished, and he was singled out for physical abuse by his father.‖ Even so,
40
however, two considerations lead us to conclude that Welch has not shown a
reasonable probability of a different penalty verdict.
First, it is likely that the jury, without the social history evidence, already
perceived Welch as having a serious mental disease. Welch‘s own attorney said
during penalty phase closing argument: ― ‗The simple thing, Ladies and
Gentlemen, is there really any one of you who doesn‘t think that my client is
crazy? [¶] Really? Is there any one of you who sits there and who honestly can
say that they don‘t think Mr. Welch is crazy?‘ ‖ (Welch, supra, 20 Cal.4th at
p. 764, fn. 10.) In previously rejecting Welch‘s claim that this line of argument by
his attorney constituted ineffective assistance of counsel, we said: ―Read in
context, . . . the use of that resonant colloquial term appears to have been an
attempt to move beyond legalisms to appeal to the jury‘s likely perception that
there was something psychologically quite wrong with [Welch].‖ (Id. at p. 764.)
Thus, the difficulty Welch likely faced at the penalty phase was not the jury‘s
disbelief that he was mentally ill, but rather the jury‘s skepticism that his mental
illness sufficiently mitigated his culpability for the six murders so as to warrant a
life sentence.
Second, and related, the prosecutor emphasized in his cross-examination of
Dr. Benson and Dr. Pierce that Welch acted with planning and deliberation, not
out of impulse, in committing the murders. In particular, the prosecutor drew
attention to the facts that Welch had said he could have access to an Uzi any time
he wanted to take care of problems; that Welch had earlier said he would come
back to the Mabrey home and kill everybody when the police were gone; that
Welch in fact waited until no police were in the area and entered the house during
the early morning hours; that Welch brought a loaded Uzi to commit the murders;
that Welch said, ― ‗this is for you, bitch‘ ‖ when he shot Dellane Mabrey; that
Welch went around the house looking for Chuck after shooting several victims;
41
and that Welch fled to a safe house after committing the murders. Against Dr.
Benson‘s and Dr. Pierce‘s insistence that Welch acted with impaired capacity to
conform his conduct to the law, the prosecutor emphasized that the facts showed
Welch had the presence of mind to plan and carry out the murders and to
appreciate the criminal nature of his conduct. Although evidence of child abuse
would have bolstered the diagnoses of mental illness and perhaps lessened the
force of the prosecutor‘s general attack on the experts‘ credibility and diagnoses,
we see no reasonable probability that a firm diagnosis of mental illness would
have cast doubt on the prosecutor‘s specific argument that any mental illness
Welch might have had did not impair his capacity at the time of the murders to
appreciate the criminality of his conduct or to conform his conduct to the law. As
we have recognized, the connection between the abuse suffered and the capital
crime is a significant factor in determining whether the failure to introduce
evidence of abuse was prejudicial. (See In re Crew (2011) 52 Cal. 4th 126, 153; In
re Visciotti (1996) 14 Cal. 4th 325, 355.)
Moreover, as the referee found, if the defense had introduced the child
abuse evidence, the prosecution likely would have countered with expert opinion
like Dr. Martell‘s amplifying the thesis that ―petitioner‘s behavior on the night of
the crime did not show impulsivity. Being able to plan, be goal directed and
organized showed frontal lobe executive control functions that were intact and
operating effectively at that time. The prosecution thus would have presented
expert opinion that petitioner was functioning at a much higher level during this
time span than what the defense theory posited he would have been able to.‖
To be sure, apart from any connection to the crime, evidence of childhood
abuse, deprivation, or neurological impairment can be used to humanize a capital
defendant and elicit the jury‘s sympathy. But in light of the enormity of Welch‘s
crimes and the lack of evidence of any positive qualities he possessed, we doubt
42
that any sympathy for Welch based on the abuse he suffered as a child would have
altered the jury‘s penalty verdict. As noted, the child abuse evidence consisted of
testimony that Welch‘s father spanked Welch with a belt, extension cord, or shoe
once a week for period of time in his early childhood and less frequently after that,
that Welch‘s father frequently beat Welch‘s mother, that Welch lived in poverty
and was malnourished, and that Welch‘s father disciplined Welch by hitting him
and making him ―go to jail,‖ i.e., go in the closet. Although no amount of child
abuse can be condoned or tolerated, we do not believe that this mitigating
evidence, when compared with the totality of the aggravating evidence against
Welch, would have had a reasonable probability of success. (Cf. In re Crew,
supra, 52 Cal.4th at p. 153 [evidence of the petitioner‘s ―dysfunctional family
might have elicited some jury sympathy for him at the penalty phase of his capital
trial,‖ but ―petitioner showed no causal connection between his family
environment and his cold-blooded and calculated decision to brutally murder his
wife‖].)
In sum, the prejudice inquiry requires us to examine whether it is
reasonably probable, not merely possible, that at least one juror who sat on
Welch‘s case would have reached a different result if the child abuse evidence had
been available. The jury likely perceived Welch to be mentally ill but did not
believe his mental illness sufficiently mitigated the murders to warrant a life
sentence. We do not believe the available child abuse evidence would have
strengthened the mental illness defense to such a degree that, despite the enormity
of the aggravating evidence, a different outcome was reasonably probable. And it
is not reasonably probable that the child abuse evidence in and of itself would
have elicited such sympathy from the jury as to outweigh the considerable
aggravating evidence.
43
Because Welch has not met his burden of demonstrating prejudice, we deny
his request for relief from his death sentence on grounds of ineffective assistance
of counsel.
CONCLUSION
Welch has not established that he is entitled to habeas corpus relief on his
claim of juror misconduct and on his claim that his trial counsel was ineffective
for not investigating and presenting certain mitigating evidence at the penalty
phase of his capital trial. Because our order to show cause and our reference order
were limited to these claims, we do not here address any other claim set forth in
his habeas corpus petition, which will be resolved by separate order. (In re Crew,
supra, 52 Cal.4th at pp. 153–154.)
The order to show cause is discharged.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
44
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Welch
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S107782
Date Filed: June 22, 2015
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
Wesley A. Van Winkle, Stephanie Ross and Karen Kelly, under appointments by the Supreme Court, for
Petitioner David Esco Welch.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief
Assistant Attorneys General, Ronald S. Matthias and Gerald A. Engler, Assistant Attorneys General, Bruce
Ortega, Glenn R. Pruden and Catherine A. Rivlin, Deputy Attorneys General, for Respondent State of
California.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Wesley A. Van Winkle
P.O. Box 5216
Berkeley, CA 94705-0216
(510) 848-6250
Catherine A. Rivlin
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5977
2