Petitioner was charged with two counts of murder. At trial, he blamed the murders on a man named "Bo." That defense was presented through the preliminary hearing testimony of a single witness. Defense counsel, a deputy public defender, made no reasonable efforts to locate potential witnesses to corroborate that testimony: Refusing the assistance of the public defender's highly experienced staff of investigators, he insisted on undertaking the task himself, but his own feeble efforts were utterly inadequate.
The majority concludes that defense counsel's inadequate investigation violated defendant's right to effective representation. The majority insists, however, that counsel's incompetence did not prejudice petitioner. I disagree. In my view, there is a "reasonable probability" (Strickland v.Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674,104 S.Ct. 2052]) that the outcome of trial would have been different if defense counsel had conducted a *Page 1278 competent investigation. Therefore, I would vacate petitioner's two murder convictions and the judgment of death.
I Murder victims Mary Gioia and Greg Kniffin were "Deadheads," a name used for followers of the Grateful Dead, a popular rock band based in the San Francisco Bay Area. The Deadheads were nomads who followed the Grateful Dead around the country when the band went on concert tours. In August 1985, Gioia, Kniffin, and many other Deadheads were staying in Rainbow Village, a homeless encampment in Berkeley, located next to San Francisco Bay. In the early morning hours of August 16, 1985, Gioia and Kniffin were beaten and shot to death at point-blank range, apparently with a high-powered rifle or shotgun, and their bodies were thrown into the bay. There was no obvious motive for the murders.
Petitioner was not a Deadhead, but he was living in Rainbow Village at the time of the murders. The circumstantial evidence against him at trial was strong but not overwhelming: (1) He was seen with the two victims around 2:30 a.m., shortly before their deaths; (2) he owned a high-powered rifle that could have inflicted the fatal wounds; he was seen using the rifle on the night of the murders, but the next morning he claimed it had been stolen and later that day he said he was worried that it had been used to shoot the victims; (3) he told the police he was with the victims on the night of the murders, and he made somewhat inconsistent statements about his activities that night; (4) police found a corncob pipe near some bloodstains in the sand, not far from where the bodies were found, and petitioner admitted that on the night of the murders he and the victims had used a corncob pipe to smoke marijuana together; and (5) when the police recovered Gioia's body from San Francisco Bay, petitioner exclaimed, "That's Mary," although he was about 45 feet away at the time.
The defense introduced the preliminary hearing testimony of Vivian Cercy, who was unavailable at the guilt phase of petitioner's capital trial. She said that about 1:30 a.m. on the night of the murders, she saw a man and a woman who resembled the murder victims speaking to a man with long blond hair known as "Bo," whose true name Cercy did not know. Bo held an object in his hand, and Cercy heard him ask, "Do you think she's seen anything?" The man who looked like Kniffin replied, "No, she couldn't have." The woman said, "You have to give it back"; Bo responded, "This could mean money to us, we need this." The woman said, "I don't want any part of this, I'm going," and she began to walk away. Cercy invited her to spend the night in Cercy's car; the woman refused. Saying, "I'll take care of this," Bo walked after the woman. About 15 minutes later, Cercy heard noises that sounded *Page 1279 like firecrackers. She later saw Bo walk up the waterfront and wipe his hands on the vegetation growing there; thereafter, Bo washed his hands in a sink at Rainbow Village. Around 4:00 a.m., a man knocked on the window of Cercy's car, asked her who she was and where she was staying, and said he was going to kill her.
The prosecution impeached Cercy's testimony by calling a police officer who testified that when he interviewed Cercy she admitted having quite a bit to drink on the night of the two murders; she did not mention that on that night a man had threatened to kill her. The prosecution also called Vincent Johnson, a resident of Rainbow Village, who testified that Cercy had told him she had seen nothing on the night of the murders, but that she had given a statement to the police because her boyfriend, Harry Shorman, had asked her to do so.
After deliberating for five days, the jury convicted petitioner of one count of first degree murder and one count of second degree murder, and it found true an alleged multiple-murder special circumstance. At the penalty phase, it returned a verdict of death. This court affirmed the conviction on direct appeal. (People v. Thomas (1992) 2 Cal.4th 489 [7 Cal.Rptr.2d 199, 828 P.2d 101].)
In 1997, petitioner filed this habeas corpus petition alleging that his trial attorney, Alameda County Deputy Public Defender James Chaffee, had not conducted a competent investigation to locate potential witnesses who could corroborate Cercy's testimony about Bo. This court appointed a referee, Alameda County Superior Court Judge Philip Sarkisian, to conduct an evidentiary hearing on petitioner's claim.
At the evidentiary hearing, Attorney Chaffee testified that he chose to do his own investigation rather than rely on the highly trained investigators of the public defender's office, because this would allow him to talk to potential witnesses and decide if he wanted to use them. To corroborate Cercy's story, he talked to residents of Rainbow Village. The people he spoke to, however, were not Deadheads and knew nothing about Bo. By the time Chaffee spoke to these persons, the Grateful Dead were on tour, and the Deadheads had left Rainbow Village to follow the band. Chaffee made no effort to track down the Deadhead community to look for Bo. This court's referee concluded, "Chaffee did not look for Bo among the Deadheads because he wanted to try the case with Cercy's testimony about a person named Bo. Chaffee was not certain he `wanted to press to [sic] hard on whether or not such a person *Page 1280 actually existed' in part because he was never certain Cercy had actually seen a person who might be connected with the case. . . . He believed the state of the evidence from Cercy's preliminary hearing testimony was as good as it would ever be for the defense."
At the evidentiary hearing, petitioner presented the testimony of a number of witnesses who, he claimed, could have been located if his trial attorney had conducted a competent investigation, and who at trial could have given corroborative testimony supporting the defense theory that Bo, not petitioner, had killed Gioia and Kniffin. Petitioner asserted that Bo was James Bowen, a man who matched Cercy's description of the person she knew as Bo, and who was in Rainbow Village at the time of the murders. The name of Weston Sudduth, an acquaintance of Bowen's, figured prominently in the testimony of the witnesses. Below, I summarize the testimony of the most significant witnesses at the evidentiary hearing:
1. Jong Cheol Cho was a Deadhead who knew murder victims Kniffin and Gioia, as well as two men he knew as Bo and Weston. He identified a photo of James Bowen as being the man he knew as Bo. He spent the night of the murders in Rainbow Village. The next day, he talked to Bo and Weston about Gioia's death. Bo said either that "I" or "we" "went swimming into the bay last night," after which Weston "suddenly jabbed him" in the rib and simultaneously gave him "a look." The conversation abruptly stopped.
2. Randy Turley owned the Dead On bus, in which he would drive people to Grateful Dead conceits around the country. He knew someone named Bo who sold tie-dye clothing at Grateful Dead concerts, and he identified a photo of James Bowen as the man he knew as Bo. Although Turley's testimony simply went to corroborating the existence of the man named Bo, his importance to the defense lay in the fact that he was well-known in the Deadhead community, and thus could have assisted the defense in locating potential defense witnesses.
3. Robert Herbert came to California in July 1985. After attending some Grateful Dead concerts he and some friends moved into an apartment in Chico, in Butte County. He knew Randy Turley, the owner of the Dead On bus. In late August or early September 1985, a few weeks after the two murders, a man named James Bowen, known as Bo, moved into the apartment where Herbert was living. Herbert remembers a conversation in which a man he knew as Weston asked Bo, "How can you sleep at night? How can you live with yourself?" *Page 1281
4. Toma Cauffield moved into a Chico apartment with her boyfriend, Robert Herbert, in early August 1985. In late August, a man named James Bowen, who was known as Bo and sold tie-dye shirts, moved into the apartment. In September 1985, a man named Weston Sudduth came to the apartment. She heard Sudduth yell at Bo: "How could you do it? How can you sleep with yourself at night?" After the incident, Bo became withdrawn and he moved out soon thereafter.
5. David Kohn came to California in December 1985, five months after the two murders. In early 1986, he shared an apartment in Chico with James Bowen, whom he knew as Bo. In February 1986, while driving in a car after a Grateful Dead concert. Bowen said women were "evil" and he had "killed his brother over a woman."
6. Daniel Adams was a Deadhead. In the days before the two murders, he heard an exchange between murder victim Gioia, who was "very upset," and a man he knew as Bo, who seemed "controlling." On the morning after the murders, Adams heard Bo say, "Sometimes a man's got to do what must be done." Bo then packed and left Rainbow Village in a hurry.
II The majority concedes that, with a reasonably competent investigation, the defense would have been able to locate potential witnesses Cho and Turley, but it concludes that the defense would not have been able to find potential witnesses Herbert, Cauffield, Kohn, and Adams. The majority acknowledges that bus owner Randy Turley was a source that could have led to potential defense witnesses, but it points out that at the time of trial, petitioner's trial counsel did not know that "Bo" was James Bowen, and that potential witnesses Herbert, Cauffield, and Kohn were never in Rainbow Village.
I am unpersuaded by the majority's conclusion that a competent investigation would not have led to any of the four witnesses I just mentioned. After all, petitioner's habeas corpus counsel, who did not begin his own investigation into locating potential witnesses until eight years after the murders, managed to find nine Deadheads (Cho, Turley, Herbert, Cauffield, Kohn, Adams, and three other witnesses whose testimony was less significant) who were familiar with Bo and willing to testify on petitioner's behalf. Although most Deadheads were known to use illegal drugs and consequently distrusted the police, there is no reason to believe that they would have felt the same way about a criminal defense investigator, especially if they believed that the defense was representing an innocent man charged with murder.
The majority also states that even if a reasonably competent investigation would have located all of the witnesses who testified on petitioner's behalf at *Page 1282 the evidentiary hearing, and those witnesses had been called to testify at petitioner's trial, it is not reasonably probable that the outcome of trial would have been different. I disagree.
The witnesses who testified at the evidentiary hearing would have greatly strengthened witness Cercy's preliminary hearing testimony had they testified at petitioner's trial. They would have established that "Bo" was a real person, not a figment of Cercy's imagination; that Bo was in Rainbow Village on the night of the two murders; and that Bo had an unpleasant talk with murder victim Gioia shortly before her death. And had those witnesses been called at trial, their testimony would have shown that several months after the two murders, Bo admitted killing his "brother" over a woman. The word "brother" in this context could have been a reference to a close companion rather than a sibling, and Bo's statement might have been considered by the jury as an admission of guilt.
Most significant, however, was the testimony of Jong Cheol Cho. He testified that, during a conversation about themurders the day after they occurred, Bo said he had gone swimming in San Francisco Bay the previous night, and that Bo then suddenly stopped talking after his friend Weston elbowed him in the ribs. Unless Bo had some innocent reason to go swimming in San Francisco Bay at night (and the majority offers none) and an innocent reason to mention this late-night swim during a conversation about the murders (and the majority offers none), Bo's statement strongly implicates him in the murders of Gioia and Kniffin, whose killer or killers had dumped their bodies in the bay.
When a criminal defendant at trial has been denied the constitutional right to effective representation, reversal is required if there is a "reasonable probability" — that is, a probability "sufficient to undermine confidence in the outcome" — that counsel's incompetence affected the jury's verdict. (Strickland v. Washington, supra,466 U.S. at p. 694.) Here, if the jury had heard the testimony of the witnesses that petitioner presented at the evidentiary hearing, it might nonetheless have convicted him of the two murders and imposed the death sentence. But there is at least a reasonable probability that it would not have done so. Notwithstanding the minimal showing by the defense in support of its claim that Bo rather than defendant committed the murders, the jury deliberated for five days before rendering its verdicts. These lengthy deliberations are a strong indication that the jury found the issue of defendant's guilt to be close and difficult. Had defendant's trial attorney called the witnesses who later testified at the evidentiary hearing, his claim that James Bowen rather than petitioner committed the murders would have been *Page 1283 greatly strengthened, and the jury might well have concluded there was a reasonable doubt about defendant's guilt and declined to convict him of the capital murders.
I would grant the habeas corpus petition and vacate petitioner's two murder convictions and sentence of death.
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