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Visciotti v. Martel

United States Court of Appeals, Ninth Circuit

October 17, 2016

John Louis Visciotti, Petitioner-Appellant,
v.
Michael Martel, Respondent-Appellee.

          Argued and Submitted November 12, 2013 Pasadena, California

         Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No. 2:97-cv-04591-R

          Mark R. Drozdowski (argued), Deputy Federal Public Defender; K. Elizabeth Dahlstrom, Research & Writing Specialist; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          Meagan J. Beale (argued), Deputy Attorney General; Holly Wilkens, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

          Before: Harry Pregerson, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of habeas relief in a case in which California state prisoner John Visciotti raised (1) a penalty-phase ineffective assistance claim, focused on the allegation that key aggravating evidence was introduced only as a result of counsel's errors during the penalty proceedings; (2) a new claim that the cumulative effect of counsel's ineffectiveness during both the guilt and penalty phases of trial ultimately prejudiced the penalty proceedings; and (3) a claim that the trial judge's closure of the death-qualification voir dire proceedings violated Visciotti's Sixth Amendment right to a public trial.

         The panel held that, whether or not the ineffective assistance of counsel claims have merit, they are foreclosed by the Supreme Court's prior decision in this case, Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam).

         Regarding the trial judge's closure of death-qualification voir dire, to which counsel did not object, the panel held that de novo review continues to apply, post-AEDPA, to a contention that ineffective assistance of trial counsel constitutes cause to excuse a procedural default. The panel concluded that counsel's failure to object to the closure of death-qualification voir dire did not constitute deficient performance, and that Visciotti therefore cannot demonstrate cause to excuse his default of the public trial right claim.

         Concurring, Judge Berzon, joined by Judge Pregerson, wrote separately to emphasize that this case illustrates that Supreme Court summary reversals cannot, and do not, reflect the same complete understanding of a case as decisions after plenary review.

          OPINION

          BERZON, Circuit Judge:

         In 1983, an Orange County jury convicted John Visciotti of first-degree murder, attempted murder, and robbery. The same jury then sentenced Visciotti to death.

         On direct, automatic appeal, the California Supreme Court affirmed the judgment in its entirety. People v. Visciotti, 2 Cal.4th 1 (1992) ("Visciotti I"). Visciotti filed a state petition for writ of habeas corpus, alleging ineffective assistance of his counsel (IAC) during the guilt and penalty phases of his trial in violation of the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 (1984). The California Supreme Court assumed that counsel afforded Visciotti "inadequate representation in some respects" during the penalty phase, but determined that Visciotti was not prejudiced and so denied his petition. In re Visciotti, 14 Cal.4th 325, 330 (1996) ("Visciotti II").

         Visciotti next brought a federal habeas petition, alleging, among many other claims, ineffective assistance of counsel during the guilt and penalty phases of his trial. The district court granted Visciotti's habeas petition as to the penalty phase and denied it as to his conviction. We affirmed. See Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. 2002) ("Visciotti III"). The United States Supreme Court summarily reversed our decision, holding that we "exceed[ed] the limits imposed on federal habeas review by" the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Woodford v. Visciotti, 537 U.S. 19, 20 (2002) (per curiam) ("Visciotti IV").

         Following remand and further proceedings, the district court denied Visciotti's remaining claims. Visciotti appeals that denial. He asserts two species of claims. First, he contends that his counsel's ineffective assistance during the guilt and penalty phases of trial requires habeas relief as to his death sentence. Acknowledging that the Supreme Court expressly denied relief on his ineffective assistance of counsel claim, he argues that the Court did not decide the particular claims he now appeals. Second, he claims that the trial judge's closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial.

         I. BACKGROUND

         Visciotti I extensively details the facts of this case. 2 Cal.4th at 28-33. We thus recite only a brief summary of the events here, as described by the Supreme Court in Visciotti IV.

[Visciotti] and a co-worker, Brian Hefner, devised a plan to rob two fellow employees, Timothy Dykstra and Michael Wolbert, on November 8, 1982, their payday. They
invited the pair to join them at a party. As the four were driving to that supposed destination in Wolbert's car, [Visciotti] asked Wolbert to stop in a remote area so that he could relieve himself. When all four men had left the car, [Visciotti] pulled a gun, demanded the victims' wallets (which turned out to be almost empty), and got Wolbert to tell him where in the car the cash was hidden. After Hefner had retrieved the cash, [Visciotti] walked over to the seated Dykstra and killed him with a shot in the chest from a distance of three or four feet. [Visciotti] then raised the gun in both hands and shot Wolbert three times, in the torso and left shoulder, and finally, from a distance of about two feet, in the left eye. [Visciotti] and Hefner fled the scene in Wolbert's car. Wolbert miraculously survived to testify against them.

Visciotti IV, 537 U.S. at 20.[1]

         A. Trial

         Visciotti's parents retained Roger Agajanian for representation in the pretrial proceedings, at the trial, and on appeal. Agajanian was admitted to the bar in July 1973, had never before the Visciotti case tried a capital case that went to a jury, and had never conducted a penalty phase trial. See Visciotti II, 14 Cal.4th at 336.

         At the outset of Visciotti's 1983 trial, the court mentioned that it would conduct "sequestered voir dire." The court explained to the pool of prospective jurors that, because the state could seek the death penalty, "we must . . . inquire of each prospective juror individually to determine in private with just the court, the two attorneys, possibly the defendant and the court personnel present, your attitudes and . . . attempt to determine if there exists any prejudice or bias that may affect your attitude toward the imposition of the capital punishment." On July 5, 6, 7, 11, 12, 13, and 14, the court conducted the death qualification voir dire. The clerk's transcript for each day reveals that the examinations were conducted "in chambers, " in the presence of only the court, counsel, court reporters, and, some of the time, Visciotti.[2]Agajanian never objected to this practice on the record. Nor did the judge make findings on the record justifying the private voir dire sessions.

         The prosecution's case was "based in major part on the testimony of Michael Wolbert, and on [Visciotti's] confessions." Visciotti I, 2 Cal.4th at 28. Of particular relevance to this appeal, the parties agreed at the start of trial that the prosecution would not in its guilt phase case-in-chief present evidence of Visciotti's previous conviction for assaulting William Scofield with a deadly weapon. Visciotti had pleaded guilty to that offense in 1978 and served time in state prison. The prosecution abided by this agreement.

         Agajanian nevertheless had Visciotti testify about his criminal history, including his 1978 conviction:

In his guilt phase testimony, [Visciotti] claimed that the 1978 incident occurred when two men who had a problem with his roommate, Doug Favello, kicked in the door of the apartment he shared with Favello, ran in, and cut Favello's throat. A third person with a gun remained at the door. [Visciotti] testified that he picked up the knife dropped by the person who had stabbed Favello, ran after the fleeing intruders, and stabbed the one who had slashed Favello's throat just as that person (Scofield) was trying to enter his own room. On cross examination [Visciotti] conceded that he and several friends went to Scofield's room later that night, denied that they had kicked in the door to that room or that anyone had been in bed in the room, and denied seeing, let alone stabbing, a woman who had been in the room.

Visciotti I, 2 Cal.4th at 30 n.5.

         On rebuttal, the prosecution called Robert D. McKay, a Crime Scene Investigator for the Anaheim Police Department, to contradict Visciotti's testimony concerning the 1978 incident. McKay had investigated the scene of the 1978 incident, including Scofield's room. He testified with respect to the door to the apartment that it "appeared it had been forced open, " as the door molding and latching had been partially destroyed and there was a hole in the adjoining wall from "where the doorknob would have struck the wall." He authenticated several photographs he had taken of the crime scene, including images of two knives, blood-stained bedding, and the damaged door to the apartment.

         That same night, at a hospital, McKay observed and photographed two injured parties: Scofield and Kathy Cusack. He authenticated at trial a photograph he had taken of several of Cusack's stab wounds while she lay half naked on a table in the hospital emergency room. McKay testified that Cusack suffered from seven wounds, including "a deep laceration to the lower right breast area, a deep long cut to the inside of the right thigh, a cut to the right side, and four cuts to the back of the right arm." McKay later returned to the police department, where he observed Favello. He testified that Favello "did not have blood on his clothing or on his body, " nor any evidence of an injury to his neck.

         On July 29, 1983, the jury found Visciotti guilty of first degree murder of Dykstra, attempted murder of Wolbert, and robbery. Visciotti I, 2 Cal.4th at 27-28. The jury "also found that the murder was committed under the special circumstance of murder in the commission of robbery, and that [Visciotti] had personally used a firearm in the commission of the offenses." Id. at 28 (internal citation omitted).

         B. Penalty Phase

         Visciotti's penalty trial began several days later. As the California Supreme Court recounted, "[t]he only evidence presented by the [prosecution] in the initial phase of the penalty trial was the testimony of William Scofield, the victim of the June 15, 1978, assault with a deadly weapon offense to which [Visciotti] had pleaded guilty and for which he had served a prison term." Visciotti I, 2 Cal.4th at 33.

         Scofield testified as follows: At the time of the incident, he lived with Kathy Cusack in the same complex as Doug Favello. The dispute between him and Favello had arisen out of Favello's "loss" of Cusack's cat. At Cusack's request, Scofield spoke with Favello about the loss of the cat. Their conversation degenerated into a fist fight. Later that evening, Scofield went to Favello's room armed with a knife and continued the argument. He did not strike Favello with the knife he brandished.

         The following night, "five or six guys kicked the door [to Scofield's room] down, " dragged him out of the room, and assaulted him with some combination of baseball bats, sticks, knives, and an ice pick. Scofield testified that Visciotti, part of this group, stabbed him in his back. During the altercation, Cusack remained in the room. When Scofield returned to the room, he saw her "covered with blood." Scofield's back required surgery.

         The prosecution next called Cusack to testify. Agajanian objected on the ground that Visciotti had pleaded guilty only to stabbing Scofield and was not charged in the criminal information with assaulting Cusack. The court initially overruled the objection.

         Just after Cusack was sworn in but before the prosecution began to examine her, the court again called counsel to the bench. The court asked the prosecutor whether the Notice of Evidence of Aggravation informed Visciotti that the prosecution would rely on Cusack's testimony during the penalty phase. The prosecutor replied that Cusack's testimony related to facts "that are an integral part of the transaction concerning [Visciotti's] prior felony conviction, " which was included in the Notice.[3] As the initial 1978 criminal complaint had expressly referred to an assault on Cusack, the prosecutor argued, even "a preliminary, absolutely minimal threshold type of investigation on the part of the defense which I'm sure a competent attorney like Mr. Agajanian . . . would do . . . would alert them to the fact there was more than one victim alleged."

         The court noted that the Notice "refers strictly to a conviction for which the defendant stands accused . . . that is, the assault with a deadly weapon upon William Scofield. . . . [It] talks about what appears to be a single violation . . . and it talks about a conviction." In the end, the court precluded Cusack from testifying at all. The prosecution offered no further evidence in its aggravation case-in-chief.

         Agajanian's "theory was to invoke jury sympathy for [Visciotti's] family." In particular, Agajanian presented evidence from various family members and friends that Visciotti "had never been violent toward anyone in [his] family, " and that "he was violent only when under the influence of drugs." Visciotti I, 2 Cal.4th at 34.

         Midway through Visciotti's mitigation presentation, the prosecution moved for permission to introduce Cusack as a rebuttal witness at the close of Visciotti's case. The court granted the motion, holding "that the evidence introduced by the defense is opinion evidence by every defense witness offered [during the penalty phase] . . . that the defendant is in fact a non-violent person. The people are entitled as a matter of law to rebut that by competent evidence. Specific acts of violence and rebuttal are relevant and are appropriate to rebut an opinion that the defendant is in fact a non-violent person, so the court shall allow the witness to testify as requested."

         Agajanian, in turn, moved for a continuance "to find out all of this information that this lady is apparently going to be testifying to . . . ." After the court denied this motion, Agajanian moved for production of "certain reports . . . to help us prepare for this witness and determine the truthfulness of the statements." The court granted the second motion.

         The California Supreme Court summarized Cusack's testimony as follows:

She first met [Visciotti] on June 12, 1978, at a party in [Visciotti's] apartment. She had not seen him again until the early morning hours of June 15 when he and several other men broke into the apartment she shared with Scofield. [Visciotti] had a knife. When the other men, who were beating Scofield with bats and sticks, dragged Scofield out of the room, [Visciotti] remained in the room where Cusack was standing on the bed. He stabbed her through the right forearm, which she had raised to protect herself, stabbed her farther up that arm, and when she fell down onto the bed, slashed her leg. He then stabbed her in the ankle. When [Visciotti] attempted to stab Cusack in the abdomen she told him she was pregnant. He nonetheless tried again to stab her in the abdomen, but she rolled over and he stabbed her in the side. He then stabbed her in the chest, slashed her shoulder, stabbed her in the area of her breast. After stabbing Cusack eight or more times, [Visciotti] began to carve up the walls of the apartment, and to cut up the posters and pictures. When Cusack hit him over the head with a stick, [Visciotti] ran out of the apartment. She . . . had to be hospitalized for treatment of her wounds.

Visciotti I, 2 Cal.4th at 33-34 (footnote omitted). Cusack added that she was four months pregnant at the time of the attack. Id. at 33 n.7. Cusack was the last witness to testify in the penalty phase of Visciotti's trial.

         During his closing argument, the prosecutor emphasized Visciotti's attack on Cusack as the primary example of Visciotti's history of violence. While the prosecutor noted that Visciotti's conviction for assaulting Scofield qualified as an aggravating prior conviction, he emphasized Cusack's perspective on the incident.

         For his part, Agajanian delivered a closing argument that the California Supreme Court, on direct appeal, described as "a rambling discourse, not tied to particular evidence." Visciotti I, 2 Cal.4th at 82 n.45. Agajanian "did not argue that any statutory mitigating factor was present." Rather than arguing against the aggravating factors or for any mitigating factors, Agajanian's "approach was to note the tragedy and the impact of the murder victim's death on other people, and to ask the jury not to add to the tragedy or cause others to suffer the same impact by condemning [Visciotti] to death." Id. at 66 n.35. And, as Justice Brown noted in her California Supreme Court habeas dissent "Agajanian systematically conceded nine of the eleven aggravating and mitigating factors set forth in Penal Code section 190.3 . . . to the prosecution." Visciotti II, 14 Cal.4th at 365 (Brown, J., dissenting). To the extent Agajanian asserted any theory, it was to "ask[] the jury to spare [Visciotti's] life because he was the only bad child of a loving family who would suffer if petitioner were to be executed." Id. at 331.

         The jury began deliberating on the afternoon of August 3. After nearly two days of deliberations, the jury condemned Visciotti to death.

         C. Direct Appeal and State Post-Conviction Proceedings

         Visciotti automatically appealed to the California Supreme Court. Agajanian continued to represent him for about seven years following his conviction. During that time, Agajanian filed but a single, thirty-page brief on Visciotti's behalf. Also during that period, Agajanian was convicted in an unrelated matter, in the District of Vermont, of two counts of criminal contempt. ...


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