Argued and Submitted, Portland, Oregon: November 20,
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:08-cv-0053-RBL. Ronald B. Leighton, District Judge, Presiding.
Habeas Corpus / Death Penalty
The panel affirmed the district court's denial of Clark Elmore's habeas corpus petition challenging his conviction and death sentence for the rape and murder of his stepdaughter.
The panel held that the Washington Supreme Court did not act unreasonably in rejecting Elmore's claim that his shackling on the first day of voir dire for the sentencing trial deprived him of due process. The panel held that assuming, arguendo, that Elmore can show a violation of due process, he cannot show prejudice because of the limited duration of his shackling and the violent nature of his crime.
The panel held that the Washington Supreme Court likewise reasonably rejected, for failure to show prejudice, Elmore's ineffective assistance of counsel claim based on counsel's failure to object to the shackling.
The panel held that it was not unreasonable for the Washington Supreme Court to reject Elmore's claim that counsel was ineffective for proceeding with a remorse-oriented strategy to the exclusion of mental-health and brain-damage defenses.
The panel held that it was not unreasonable for the Washington Supreme Court to reject Elmore's claim that counsel was ineffective for not objecting to the redaction of his taped confession, which removed material in which Elmore had expressed regret about his relationship with the victim.
The panel held that assuming, arguendo, that counsel performed deficiently by advising Elmore to plead guilty, he cannot show that this advice prejudiced him. The panel wrote that given the evidence against him, including a damning tape-recording confession, it is highly likely that a jury would have still convicted him of the same crime, even if he had not pleaded guilty.
The panel held that the Washington Supreme Court was not unreasonable in rejecting Elmore's claims that he was deprived of his right to trial by an impartial jury because a juror lied during voir dire when he stated that he had not been the victim of sexual abuse. The panel wrote that the juror likely could not have been removed for cause, and that the juror's statements suggest that he believed his responses on the questionnaire to be accurate.
Concurring in part and concurring in the result, Judge Hurwitz wrote that he doubts that Elmore received competent representation. But applying AEDPA's " doubly-deferential" standard, he concurred in the panel opinion insofar as it concludes that the Washington Supreme Court did not unreasonably determine that Elmore failed to establish constitutional prejudice from either the guilty plea or the shackling. He also wrote that although defense counsel plainly fell below the applicable standard of care in not investigating Elmore's brain damage, he could not conclude that the state court unreasonably determined that there is no reasonable probability that a proper investigation would have changed the outcome.
Robert Harris Gombiner (argued), Law Offices of Robert Gombiner, Seattle, Washington; Jeffrey E. Ellis, Law Office of Alsept & Ellis, Portland, Oregon, for Petitioner-Appellant.
John J. Sampson (argued) and Robert W. Ferguson, Washington Attorney General's Office, Olympia, Washington, for Respondent-Appellee.
Before: Richard R. Clifton, Milan D. Smith, Jr., and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Hurwitz. HURWITZ, Circuit Judge, concurring in part and concurring in the result.
M. SMITH, Circuit Judge:
Clark Elmore was convicted and sentenced to death for the rape and murder of his stepdaughter, Kristy Ohnstad, in 1995. In this appeal of a judgment of the federal district court, Elmore challenges his death sentence on various constitutional and procedural grounds. Specifically, Elmore argues that he was deprived of due process, the effective assistance of counsel, and the right to an impartial jury during the sentencing phase of his capital trial.
Elmore fully litigated these claims through the Washington state court system. The Washington Supreme Court
first considered and dismissed several of these issues on direct appeal. Elmore subsequently filed a collateral petition, which the Washington Supreme Court remanded to the trial court for a hearing on Elmore's defense counsel's failure to present a mental health defense. After this evidentiary hearing, the Washington Supreme Court dismissed Elmore's personal restraint petition and held that counsel was not ineffective for not having presented a mental health defense.
Elmore subsequently filed this federal habeas petition in federal court. We hold that the conclusion of the Washington Supreme Court that Elmore was not deprived of his constitutional rights during his capital trial was not unreasonable. We therefore affirm the decision of the district court to uphold Elmore's death sentence.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
On April 17, 1995, Clark Elmore raped and murdered his stepdaughter, Kristy Ohnstad, in Whatcom County, Washington. The details of the crime are gruesome, and not in dispute. After having a verbal altercation with Kristy Ohnstad in which she accused Elmore of having sexually abused her as a child, Elmore told her he was going to drive her to school. Elmore, instead, drove the victim to a secluded area, parked on an undeveloped dirt roadway, and forced her to have intercourse with him. He then choked Kristy Ohnstad with his hands until she became unconscious.
After she was unconscious, Elmore removed her belt, placed it around her neck, and buckled it. He then removed a needle-like tool from his toolbox, forced it into her left ear, and pushed it through to the opposite side of her skull. Elmore then placed a plastic garbage bag around her head and struck her repeatedly with a hammer. Once he was convinced she was dead, Elmore disposed of her body in the woods.
When Kristy Ohnstad's mother initially reported her missing, Elmore posed as a concerned father searching for his daughter. He called the media and claimed that the police were not doing enough to search for her. Once the police began to focus their search for Kristy Ohnstad on the area where Elmore had concealed the body, Elmore fled to Oregon. Elmore, however, returned to Washington soon after fleeing, and surrendered to the police. After his arrest, Elmore gave a tape recorded confession in which he recounted the details of his crime.
B. Elmore's Guilty Plea
Elmore was charged with aggravated first degree murder, which made him eligible for the death penalty. At his first court appearance, Elmore stated that he did not want an attorney, and attempted to plead guilty. The trial court declined to take the plea and appointed Jon Komorowski as defense counsel. This was Komorowski's first capital case. After being appointed, Komorowski put together a team of co-counsel, an investigator, a mental health advisor, and a legal assistant.
After having discussions with Komorowski, Elmore pleaded guilty at his second court appearance. Komorowski stated on the record that he was satisfied that Elmore was mentally competent to plead guilty and that his client was pleading guilty voluntarily. During his colloquy, Elmore stated to the judge that he was competent to plead guilty and that he was fully aware of the rights he was waiving, including the right to a trial by jury, by entering the guilty plea.
C. Sentencing Trial
Although Elmore did not receive promises of a life sentence in exchange for his guilty plea, Komorowski's strategy at sentencing apparently was to present the jury with evidence of Elmore's remorse for the crime, which included the plea itself. Komorowski arrived at this strategy after working with two focus groups of mock jurors, and conducting a mock sentencing trial. Questioning of the focus groups of mock jurors made clear that the most important mitigating factor for a jury at sentencing would be Elmore's remorse and acceptance of personal responsibility. The focus groups also expressed concern about abusive conduct by Elmore, including past acts of sexual abuse and violence.
As part of his preparation for the sentencing trial, Komorowski considered presenting Elmore's mental health issues as a mitigating factor. The defense team investigated Elmore's background and retained a clinical psychologist, Dr. Ronald Kleinknecht, to determine whether Elmore had a mental illness. Dr. Kleinknecht observed that Elmore did not suffer a serious impairment in cognitive skills. Since Elmore worked as a mechanic, Dr. Kleinknecht concluded that Elmore had been able to engage in some complex and logical thinking as part of his occupation.
Dr. Kleinknecht referred Elmore to Dr. Donald Roesch, a clinical psychologist with a specialty in psychopathy. After meeting and analyzing Elmore, Dr. Roesch concluded that Elmore was not a psychopath. Dr. Roesch suggested that Elmore's murder of Kristy Ohnstad was impulsive, and consistent with heightened emotional arousal. While some of the capital defense attorneys who worked with Komorowski recommended further mental health investigation, Komorowski was concerned about Dr. Roesch's findings, including Elmore's heightened emotional arousal at the time of the crime. Dr. Roesch also had suggested that Elmore appreciated the seriousness of his crime and attempted to cover it up. Komorowski did not further investigate these matters.
As the sentencing trial approached, Elmore suggested that he was less inclined to suffer feelings of remorse. Elmore had received a letter from Sue Ohnstad indicating that she would not be able to forgive Elmore for the murder of her daughter, and that she would have no further contact with him. In response to this letter, Elmore told his defense team's investigator that he no longer had anyone to whom he thought he needed to apologize. As a result, Komorowski testified that he believed that " time was running out" on the defense's ability to pursue a remorse defense.
The defense team ultimately did not present mental health or brain damage evidence. Instead, they presented evidence of Elmore's acceptance of personal responsibility for his crime. As part of this defense strategy, Elmore agreed to appear in jail garb throughout the sentencing trial. Elmore also appeared in shackles on the first day of jury selection. Although this was not part of the defense team's strategy, Komorowski did not object to the use of shackles. After the prosecutor raised concerns about Elmore appearing in shackles, Elmore did not appear shackled after the first day of voir dire.
The prosecutor's case focused on Elmore's confession. A detective played a redacted version of Elmore's taped confession. The redacted tape omitted a portion of the confession that Komorowski believed showed Elmore's remorse, including statements about Elmore's relationship with Kristy Ohnstad and his regret for not having developed a father-daughter relationship with her. To correct this error,
Komorowski decided to have the investigating detective read that portion of the tape into the ...