United States District Court, D. Arizona
ORDER DEATH PENALTY CASE
JOHN J. TUCHI, District Judge.
Before the Court is Petitioner's motion for evidentiary development. (Doc. 56.) Petitioner seeks expansion of the record, discovery, and an evidentiary hearing on the claims alleged in his petition for writ of habeas corpus. Respondents oppose evidentiary development. (Doc. 57.) For the reasons set forth below, the motion is denied.
I. The Crime
Petitioner sexually assaulted and murdered eight-year-old Elizabeth Byrd, strangling her to death with the strap of her purse. A jury convicted him of first-degree murder, sexual conduct with a minor, and kidnapping. He was sentenced to death on the first-degree murder conviction. Except where otherwise indicated, the following factual summary is taken from the opinion of the Arizona Supreme Court affirming the convictions and sentences. State v. Newell, 212 Ariz. 389, 393-96, 132 P.3d 833, 837-40 (2006).
On the morning of May 23, 2001, a neighbor saw Elizabeth walking toward school with Petitioner following closely behind. Elizabeth knew Petitioner because he had dated her older sister.
About an hour later, a Salt River Project ("SRP") employee working in a field near the school came upon someone standing in an irrigation ditch. The person in the ditch turned and looked at him and then ran away. The employee noticed a rolled up piece of green indoor-outdoor carpeting in the water near where the person had been standing.
That afternoon, Elizabeth's mother arrived home to find that Elizabeth had not returned from school. When Elizabeth did not come home that night, the police were called. The officers were told that Elizabeth had not been in school that day. A missing persons report was called in.
The next morning, while searching the field near the school, Phoenix Police Department officers discovered a child's shoe, a children's book, a black purse or knapsack, a pair of socks, and a coin purse. That afternoon, a detective from the Maricopa County Sheriff's Office discovered Elizabeth's body in an irrigation ditch in the field, rolled up in green carpeting. Shoe prints were found along the ditch.
Later that day, the SRP employee went to the Sheriff's office after seeing a news report about the investigation. He was shown a photographic lineup, but he did not identify anyone in the lineup as the person he had seen in the ditch.
An autopsy revealed bruising on Elizabeth's hands, wrists, and forearms. A ligature was still tied around Elizabeth's neck, and there were abrasions on the left side of her neck, consistent with fingers grasping at the ligature trying to remove it. She also had bruising and an abrasion on her face.
The autopsy also revealed evidence of sexual assault. Elizabeth's vulva was bruised and the vaginal tract had abrasions, with a tear on the side of one of the abrasions. One abrasion in the vaginal tract went right up to the hymen, but the hymen itself was still intact.
The medical examiner concluded that Elizabeth died from asphyxiation due to ligature strangulation. Once the ligature had been tightened, Elizabeth likely died within a minute or two. The medical examiner further determined that it was likely that Elizabeth had stopped breathing before she was placed in the water.
Elizabeth's underwear, along with blood, bone, and tissue samples, were collected and sent to the Department of Public Safety ("DPS") lab for testing.
A detective from the Maricopa County Sheriff's Office contacted Petitioner on May 27, 2001. Petitioner agreed to come to the station to be interviewed. He was asked about the day of Elizabeth's disappearance and if he knew anything that might be helpful to the investigation. Petitioner described what he did that day but made no incriminating statements.
Petitioner was contacted again by a Sheriff's detective at Elizabeth's funeral on June 2, 2001. The detective went to the funeral to find Petitioner because he had been told that Petitioner was wearing Converse All-Star tennis shoes, the type of shoe that matched the prints found near Elizabeth's body. Petitioner voluntarily went to the station and again answered questions about his activities at the time of Elizabeth's disappearance. During the interview, Petitioner's shoes were taken to be compared with the footprints at the ditch. Two days later, an analyst from the Sheriff's office concluded that it was "highly probable" that the footprints at the crime scene had been made by Petitioner's shoes.
On the evening of June 4, two detectives contacted Petitioner and asked if he would consent to another interview. Petitioner agreed. Shortly after 8:00 p.m., the detectives began questioning him. The interrogation was videotaped. The detectives advised Petitioner of his Miranda rights. He waived those rights and agreed to speak with the detectives.
The questioning began in a manner similar to the two previous interviews, but became more accusatory after the second hour. Petitioner initially denied having anything to do with Elizabeth's death. Eventually, however, he acknowledged that he had been with Elizabeth in the field on the morning of her disappearance. He admitted he had grabbed her and placed her between his legs while he rubbed up against her, causing him to ejaculate. He then acknowledged placing her in the water. When he saw the SRP employee, he covered Elizabeth with the carpeting and ran off. Petitioner maintained that Elizabeth was alive when he left her in the ditch and denied sexually abusing her. He was taken to jail on the morning of June 5, 2001.
Later that day, the SRP employee was shown another photo lineup, which included a picture of Petitioner. He identified Petitioner as the person he had seen in the ditch.
A criminalist with the DPS crime lab conducted an analysis on Elizabeth's underwear. Semen was found inside of the central crotch area. A DNA analysis established that Petitioner was the likely source of the semen.
II. Procedural background
On June 14, 2001, Petitioner was indicted on charges of first-degree murder, sexual conduct with a minor, and kidnapping. On February 12, 2004, a jury convicted him on all counts.
A sentencing hearing was held on the first-degree murder charge. In the aggravation phase, the jury found that three aggravating circumstances had been proved beyond a reasonable doubt: a previous conviction for a serious offense, under A.R.S. § 13-703(F)(2); the murder was committed "in an especially heinous, cruel or depraved manner, " § 13-703(F)(6); and at the time of the murder Petitioner was an adult and the victim "was under fifteen years of age, " § 13-703(F)(9).
In the mitigation phase of sentencing, Petitioner presented testimony from family members, including his mother, stepfather, half-sister, and aunts. The testimony detailed Petitioner's troubled childhood and family life, which featured extreme poverty, neglect, and periods of homelessness. Petitioner's mother testified that he was sexually abused as a child, once by a teenage neighbor and once by his mother's boyfriend. (RT 2/23/04 (a.m.) at 47-52.) The testimony also recounted Petitioner's history of drug abuse, including his chronic use of methamphetamine, which began when he was in the seventh grade and his stepfather introduced him to the drug. ( See RT 2/23/04 at 37-38.)
Although defense counsel retained experts to examine Petitioner, they did not present expert testimony about his drug use or mental health. The trial court precluded such evidence as a sanction for Petitioner's refusal, on counsel's advice, to submit to an examination by the State's expert.
The jury determined that Petitioner should be sentenced to death for the first-degree murder conviction. The Arizona Supreme Court affirmed the convictions and sentences. Newell, 212 Ariz. 389, 132 P.3d 833.
Petitioner then pursued post-conviction relief ("PCR"). His Notice was filed on June 5, 2007. On May 23, 2008, the Arizona Supreme Court appointed counsel to represent Petitioner in the PCR proceedings. Counsel retained an investigator, a mitigation specialist, a neuropsychologist, and a pharmacologist.
On May 4, 2009, Petitioner filed his PCR petition, raising, among other claims, allegations that trial counsel performed ineffectively at sentencing by failing to present "substantial mitigation evidence, " failing to present expert testimony regarding Petitioner's mental health and its connection to crimes, failing to request an expert on addiction and poly-substance abuse, failing to subpoena certain witnesses to testify at the penalty phase, and being unprepared to rebut testimony of a probation officer who testified at the sentencing hearing. (Doc. 58-1, ...