Jones v. Ryan

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ..................................................................................................... 3

         II. FACTUAL AND PROCEDURAL BACKGROUND ............................................ 4

         III. GOVERNING LAW ................................................................................................. 8

         IV. RELEVANT FACTS ............................................................................................... 11

         A. Trial Court Proceedings: The Evidence Presented at Trial ............................... 11

1. Rachel's Injuries and Cause and Time of Death ...................................... 13

2. Events of April 30-May 2, 1994 .............................................................. 20

         B. Post-Conviction Relief Proceedings .................................................................. 26

         C. Federal Habeas Proceedings .............................................................................. 27

1. Evidence Suggesting the Need for Further Investigation ......................... 28

2. Evidence That Could Have Been Presented at Trial ................................ 46

         V. ANALYSIS ............................................................................................................... 60

         A. Ineffective Assistance of Trial Counsel: Deficient Performance ...................... 60

1. Medical Evidence ..................................................................................... 60

2. Bloodstain Evidence ................................................................................. 66

3. Reliability of Eyewitness Testimony/Accident Reconstruction ............... 67

4. Funding ..................................................................................................... 69

5. Trial Strategy ............................................................................................ 70

         B. Ineffective Assistance of Trial Counsel: Prejudice ........................................... 72

1. Timing of Rachel's Injuries ...................................................................... 72

2. Bloodstain Evidence ................................................................................. 76

3. Reliability of Eyewitness Testimony/Accident Reconstruction ............... 79

4. Conclusion ................................................................................................ 80

         C. Ineffective Assistance of PCR Counsel: Deficient Performance ...................... 84

         D. Ineffective Assistance of PCR Counsel: Prejudice ........................................... 90

         VI. CONCLUSION ........................................................................................................ 90

         I. INTRODUCTION

         Petitioner Barry Lee Jones (“Petitioner”) is a state prisoner under sentence of death. In 2001, Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) alleging that he is imprisoned and sentenced to death in violation of the United States Constitution. The Court denied the Petition. This matter is now before the Court on limited remand from the Ninth Circuit Court of Appeals. (See Doc. 158.)^[1] The Court of Appeals has ordered this Court to reconsider Petitioner's claim of ineffective assistance of counsel (“IAC”) in failing to conduct an adequate investigation at the guilt and penalty phases of trial (“Claim 1D”), ^[2]in the light of intervening law, including Martinez v. Ryan, 566 U.S. 1 (2012).

         Following supplemental briefing (Docs. 167, 175, 180), the Court found that an evidentiary hearing would be necessary to determine whether Petitioner could establish cause to excuse the procedural default of Claim 1D. (Doc. 185.) On October 30, 2017, the Court held a seven-day evidentiary hearing on the guilt-phase portion of the IAC claim. Following the hearing, the parties submitted post-hearing briefs and responses. (Docs. 288- 291.) After careful consideration of the trial record and the evidence and argument presented in these proceedings, the Court concludes that Petitioner has established cause to excuse the procedural default of his meritorious guilt-phase IAC claim, and grants the Petition.^[3] Petitioner will be released from custody unless, within 45 days, the State initiates new trial proceedings against him.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         In April and early May 1994, Petitioner was sharing his trailer with Angela Gray (“Angela”) and her three children, including the four-year-old victim in this case, Rachel Gray (“Rachel”), and her siblings, 11-year-old Rebecca Lux (“Becky”) and 14-year-old Jonathon Lux (“Jonathon”). Petitioner's 11-year-old daughter Brandie Jones (“Brandie”) also lived in the same trailer. At approximately 6:15 a.m. on Monday, May 2, 1994, Petitioner drove Rachel and Angela to Kino Community Hospital in Tucson, Arizona, dropped them off, and left. Rachel was admitted and pronounced dead on arrival. Her cause of death was determined to be homicide caused by a small bowel laceration due to blunt abdominal trauma. Rachel also had a laceration of her left scalp behind the ear, injuries to her labia and vagina, and multiple internal and external contusions.

         Petitioner was arrested that same day and charged with knowingly and intentionally: (1) engaging in an act of sexual intercourse with Rachel, in violation of A.R.S. § 13-1406 (Count One); (2) causing physical injury to Rachel by striking her abdominal area causing a rupture to her small intestine under circumstances likely to produce death or serious physical injury, in violation of A.R.S. §13-3623(B)(1) (Count Two); (3) causing physical injury to Rachel by bruising her face and ear and causing a laceration to her head, in violation of A.R.S §13-3623(C)(1) (Count Three); (4) causing Rachel to be placed in a situation where her health was endangered under circumstances likely to produce death or serious physical injury, in violation of A.R.S. § 13-3623(B)(1) (Count Four); and felony murder, in violation of A.R.S. § 13-1105 (Count Five).^[4] Angela was also charged under Counts Four and Five of the indictment, but was tried separately and convicted under Count Four prior to Petitioner's trial. (ROA 2; Doc. 288, Supp. Ex. 1.)^[5] Because the jury determined Angela acted recklessly, rather than intentionally or knowingly, in failing to render care she was ineligible for conviction of felony murder and therefore acquitted on Count Five. (Doc. 288, Supp. Ex. 1.)

         Petitioner was tried before a jury in April 1995. The gravamen of the prosecution's case against Petitioner was that Rachel was solely in Petitioner's care on the afternoon of May 1, 1994 when her injuries, including her fatal abdominal injury, were inflicted. The trial judge instructed the jurors that two of the child abuse charges-Count Two, alleging Petitioner struck Rachel in the abdomen rupturing her small intestine, and Count Four, alleging Petitioner endangered Rachel by failing to take her to a hospital-and the sexual assault charge-Count One-could be predicate felonies for the felony murder charge. The trial judge further instructed the jurors that the child abuse charges could only be predicate felonies if Petitioner committed them intentionally or knowingly under circumstances likely to produce death or serious physical injury. See State v. Jones, 188 Ariz. 388, 391, 937 P.2d 310, 313 (1997). Petitioner was convicted on all charges. See Jones, 188 Ariz. at 391, 937 P.2d at 313. The jurors found that both child abuse charges that qualified as predicate felonies were committed under circumstances likely to cause serious physical injury or death and that Petitioner's mental state was intentional or knowing.

         During the penalty phase of trial, Judge Carruth found the existence of two aggravating factors: the murder was especially cruel and the victim was under the age of 15. Judge Carruth found no mitigating factors sufficiently substantial to call for leniency, and sentenced Petitioner to death for the first-degree murder conviction.

         The Arizona Supreme Court affirmed the convictions and sentences, finding that evidence supported the conclusion that virtually all of Rachel's injuries occurred within a two-hour period:

. . . Rachel's sister, Rebecca, testified that Rachel spent the morning with her and their brother watching cartoons. Rachel “seemed fine” when her siblings went out to ride their bikes, about 3:00 p.m. Additionally, Rachel “seemed fine” after the first two times that she returned with defendant. Rachel first accompanied defendant to the market. Rebecca saw Rachel standing at the door when they returned, and she seemed fine. The second time defendant returned with Rachel, Rebecca again saw her standing at the door, and Rachel appeared to be fine. If Rachel had already suffered genital injuries, she would have been in pain. The examiner testified at the aggravation/mitigation hearing that the genital injuries would have caused pain at basically all times. The third time that defendant went out with Rachel, he told Rebecca that he was going to his brother's house. However, his brother's wife testified that defendant never visited their house on that day. During defendant's third trip with Rachel, two children saw defendant hitting Rachel while he drove. One of the children placed the time at 5:00 p.m. Blood spatter in the van likely was created by defendant hitting Rachel after she had already suffered a head injury. Additionally, blood spatter consistent with Rachel's blood type was found on defendant's jeans, along with traces of blood on defendant's shirt and boots. The next time that Rebecca saw Rachel, at about 6:30 p.m., Rachel was in a lot of pain. Many of the injuries that Rachel now had were consistent with defense against a sexual assault. Thus, substantial evidence was introduced to conclude that Rachel's physical assault and sexual assault all occurred within the two-hour time period during which she was alone with defendant in his van.

The evidence of the time period of Rachel's injuries, the testimony that defendant was seen hitting her, the fact that Rachel was fine before she went out with defendant the third time and was injured when she returned, and the fact that defendant told others that he had taken Rachel to see the paramedics when he had not, support the finding that defendant committed the sexual assault along with, and as part of, the overall physical assault.

Jones, 188 Ariz. at 397, 937 P.2d at 319.

         Petitioner filed a petition for post-conviction relief (“PCR”) with the trial court. After an evidentiary hearing, the PCR petition was denied in its entirety. (ROA-PCR 31.)^[6]The Arizona Supreme Court summarily denied Petitioner's Petition for Review. (PR 7.)

         Petitioner initiated this federal habeas proceeding on November 5, 2001 (Doc. 1), and filed an amended petition on December 23, 2002, raising 21 claims (Doc. 58). In Claim 1D of the petition, he alleged, in part, that counsel was ineffective for failing to:

(1) adequately investigate potential other suspects and crucial witnesses;

(2) raise legal challenges to eyewitness identifications;

(3) adequately challenge blood-spatter testimony; and

(4) hire a forensic pathologist to challenge the State's evidence regarding the nature and timing of the victim's injuries.

(Id. at 37-66.) The parties briefed the claims (Docs. 69, 79) and motions for evidentiary development (Docs. 89, 90, 101, 102, 108, 109, 113). Petitioner asserted PCR counsel's ineffectiveness as cause to excuse the procedurally defaulted portion of Claim 1D. (Doc. 79 at 25, 60-62.) This Court determined, consistent with then-governing Supreme Court precedent, see Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), that PCR counsel's purported ineffectiveness did not constitute cause for the procedural default because “there is no constitutional right to counsel in state PCR proceedings.” (Doc. 115 at 9-11.) The Court ordered supplemental briefing regarding Petitioner's allegation that it would be a fundamental miscarriage of justice not to review the entirety of Claim 1D on the merits. (Id. at 40.) The Court denied relief on September 29, 2008, concluding that Petitioner had not satisfied the fundamental miscarriage of justice standard to overcome the default of Claim 1D. (Doc. 141 at 23.)

         While Petitioner's appeal from this Court's denial of habeas relief was pending, the Supreme Court decided Martinez, holding that where IAC claims must be raised in an initial PCR proceeding under state law, failure of counsel in that proceeding to raise a substantial trial IAC claim may provide cause to excuse the procedural default of the claim. 566 U.S. 1, 17 (2012). Subsequently, Petitioner moved the Ninth Circuit to stay his appeal and grant a limited remand in light of Martinez. The Ninth Circuit granted the motion and remanded for reconsideration of Claim 1D, stating that “Claim 1D is for purposes of remand substantial.” (Doc. 158) (citing Martinez, 566 U.S. 1; Trevino v. Thaler, 569 U.S. 413 (2013); Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc); Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc)).

         In September 2015, the parties completed supplemental briefing in this Court. For purposes of the evidentiary hearing, the Court bifurcated Claim 1D into guilt-phase and penalty-phase subsections, and, on October 30, 2017, held an evidentiary hearing to determine if Petitioner could establish cause, under Martinez, to excuse the procedural default of the guilt-phase subsection.

         III. GOVERNING LAW

         Federal review is generally not available for a state prisoner's claims when those claims have been denied pursuant to an independent and adequate state procedural rule. Coleman, 501 U.S. at 750. In such situations, federal habeas review is barred unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. Id. Coleman held that the ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim. Id.

         In Martinez, however, the Court announced a new, “narrow exception” to the rule set out in Coleman. The Court explained that:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

566 U.S. at 17; see also Trevino, 569 U.S. at 423.

         Accordingly, under Martinez a petitioner may establish cause for the procedural default of an ineffective assistance claim “where the state (like Arizona) required the petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 . . . (1984)' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see also Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc); Dickens, 740 F.3d at 1319- 20; Detrich, 740 F.3d at 1245. A determination that a petitioner has shown cause and prejudice sufficient to overcome a procedural default allows a federal court to consider de novo “the merits of a claim that otherwise would have been procedurally defaulted.” Atwood v. Ryan, 870 F.3d 1033, 1060 n.22 (9th Cir. 2017) (quoting Martinez, 566 U.S. at 1) (internal quotation marks omitted).

         In Clabourne, the Ninth Circuit summarized its Martinez analysis. To demonstrate cause and prejudice sufficient to excuse the procedural default, a petitioner must make two showings:

First, to establish “cause, ” he must establish that his counsel in the state postconviction proceeding was ineffective under the standards of Strickland. Strickland, in turn, requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different. See Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052. Second, to establish “prejudice, ” he must establish that his “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318.

Clabourne, 745 F.3d at 377.

         The remand order in this case states that “the remanded claims are for purposes of remand substantial.” (Doc. 140 at 2.) Because the Ninth Circuit has already found the remanded claim substantial, prejudice under Martinez has been established. The issue of cause remains-that is, whether post-conviction counsel's performance was ineffective under Strickland. The Court will address cause by assessing PCR counsel's performance and the strength of the underlying ineffective assistance of trial counsel claim. See Clabourne, 745 F.3d at 377-78. Determining whether there was a reasonable probability of a different outcome of the PCR proceedings “is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective.” Id. “PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

         Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

         The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” 466 U.S. at 689; see also Wong v. Belmontes, 558 U.S. 15, 17 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). The Court exercises a strong presumption that “counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted). “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. With respect to Strickland's second prong, when a petitioner challenges a conviction, the court considers “the totality of the evidence” before the jury and “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. In other words, contrasting the evidence presented to the jury with that which could have been presented, the Court asks whether the omitted evidence would have created reasonable doubt in the mind of at least one reasonable juror. Hernandez v. Chappell, 878 F.3d 843, 852 (9th Cir. 2017) (quoting Daniels v. Woodford, 428 F.3d 1181, 1201 (9th Cir. 2005); Rios v. Rocha, 299 F.3d 796, 813 (9th Cir. 2002)).

         With respect to the guilt-phase subsection of his claim, Petitioner alleges that his Sixth Amendment right to effective assistance of counsel was violated by his trial counsel's failure to conduct a sufficient trial investigation and adequately investigate the police work, medical evidence, and timeline between Rachel's fatal injury and her death. Petitioner further alleges that post-conviction counsel performed deficiently within the meaning of Strickland when he failed to investigate and present this substantial IAC claim, thus excusing the procedural default of the claim under Martinez. Respondents assert that Petitioner has not shown that PCR counsel was ineffective in failing to raise the claim because PCR counsel raised multiple IAC claims and attempted to obtain additional resources. Respondents also argue that Claim 1D fails on the merits and that Petitioner therefore cannot establish cause under Martinez because he was not prejudiced by PCR counsel's performance as there was no “reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” (Doc. 175 at 14) (quoting Clabourne, 745 F.3d at 377).

         In section IV below, the Court describes the proceedings and the relevant evidence as discussed at the trial, post-conviction relief, and federal habeas stages of Petitioner's case. In section V, the Court analyzes these facts in light of the above framework.

         IV. RELEVANT FACTS

         The following section describes (1) the trial proceedings and evidence presented at trial, (2) the proceedings at the post-conviction relief phase, and (3) the evidence presented during these federal proceedings that Petitioner asserts was available at the time of his trial that either suggested the need for further investigation by trial counsel or could have been presented at trial.

         A. Trial Court Proceedings: The Evidence Presented at Trial

         Attorney Sean Bruner^[7] was appointed to represent Petitioner on May 3, 1994, the day after Petitioner's arrest. Bruner's partner Leslie Bowman, who at that time had been admitted to the bar for a little less than a year, also represented Petitioner as an informal “second-chair” attorney though she was never formally appointed by the trial court. (EH RT 10/30/17 at 44; EH Ex. 9 at 1.) As Petitioner's court-appointed counsel, it was Bruner's sole responsibility to ensure Jones received competent representation.

         At trial, the State sought to prove that (1) only an adult was capable of inflicting the fatal small bowel wound; (2) Rachel's fatal injuries were inflicted in the late afternoon on May 1, 1994, sometime after 2:00 p.m. when Petitioner woke up for the day; and (3) Petitioner was the only adult that had care of Rachel at that time and took her on several trips away from the trailer park in his van. The prosecutor summarized the State's theory in closing: “Who is her rapist? Who is her murderer? The answer to that question is simple. Who was with her all day on Sunday, May 1st.” (RT 4/13/95 at 92.) In order to support the intentional or knowing infliction of the child abuse charge alleged in Count Four, the prosecutor argued that Petitioner beat Rachel in order to rape her, and when Petitioner failed to take her to the hospital, “[s]he died as a result of that beating because only the defendant knew how badly she was hurt.” (Id. at 104.)

         The State bolstered its theory by presenting the testimony of two neighborhood children who allegedly observed Petitioner abusing Rachel as he took her on one of three trips in his van on the day before her death. The State also presented testimony that the laceration on Rachel's scalp as well as some of the abdominal contusions and abrasions were consistent with having been inflicted between 2:00 p.m. to 5:30 p.m. on May 1, and with being hit with a pry bar found in Petitioner's van. Additionally, the State presented evidence that the blood found in Petitioner's van was Rachel's, and, based on bloodstain analysis, was consistent with an assault on Rachel that took place in the van.

         Bruner acknowledged in opening statements that “[e]verything in this case is going to center around what happened on Sunday, May 1st. Specifically, a couple of disputed hours . . . .” (RT 4/6/95 at 60.) Bruner asserted that on May 1, there was nothing obvious about Rachel that would have caused Petitioner to think he needed to take her to the hospital. He asserted that nobody would testify that Rachel looked as she appears in the autopsy photos, suggesting the bruising on her body in the photos had something to do with lividity, or the pooling of blood after the heart stops beating. (Id. at 61.) Bruner further asserted that the testimony of the neighborhood children, if believable, “is strong proof for the State, ” but “they couldn't possibly have seen what they claim now months later to have seen, ” then admitted he could not explain, exactly, why that was, suggesting that the jury should just decide for themselves if a “couple small children looking up at that van, whether they could have possibly seen what they now claim to have seen . . . .” (Id. at 64-65.)

         The following is a summary of the testimony and evidence presented by the State at Petitioner's trial that established when Rachel was injured, who she was with when the injuries occurred, and where the injuries occurred. The State presented numerous witnesses who testified about the medical and physical evidence, as well as the events of the days immediately prior to and following her death. Defense counsel presented no witnesses to challenge the medical timeline from injury to death, and presented only one witness in total, Petitioner's 11-year old daughter Brandie, in support of his case.

         1. Rachel's Injuries and Cause and Time of Death

         The State presented critical evidence at Petitioner's trial from witnesses that established that most of Rachel's injuries, including the fatal injury, were consistent with infliction between 2:00 p.m. and 5:30 p.m. on May 1, 1994. Rachel's body was examined by Steven Siefert, an emergency room doctor at Kino Community Hospital; by Sergeant Sonia Pesquiera^[8] of the Pima County Sheriff's Department (“PCSD”), the lead investigator of Rachel's death; and by Dr. John Howard, a forensic pathologist with the Pima County Medical Examiner's office.

         a. Time of Death

         Dr. Siefert was the first to examine Rachel, and testified that she was dead upon arrival at the hospital. (RT 4/6/95 at 77.) Based on temperature and the existence of rigor mortis, Dr. Siefert estimated that Rachel died sometime two to three hours before she arrived at the hospital at 6:16 a.m. on May 2, 1994. (Id. at 74, 76-77, 80.) This fact is not in dispute.

         b. External Bruising and Abrasions

         Sergeant Pesquiera examined Rachel's body at the hospital and, based on her training and experience with approximating ages of bruising based upon their color and appearance, testified that Rachel's body was covered with contusions and abrasions which were in varying stages of healing; some bruising appeared new, such as along her eyelid, and some appeared to be in the healing stage, such as on the bottom of her eyes. (RT 4/12/95 at 34, 37.) Over defense counsel's objection, Sergeant Pesquiera opined that the injuries were not accidental. (Id. at 35.)

         Dr. Siefert testified that Rachel's body was covered with bruises and abrasions, primarily on the front of her body and across her face and forehead, but also on her back, arms, and legs. (RT 4/6/95 at 81.) He also observed that Rachel had a large bruise on each side of her forehead, as well as intense coloration on the outer edge of her right eye and discoloration below the eyes. (Id. at 95-96.) Dr. Howard assessed the purple coloration on Rachel's face as arising from an injury that probably occurred one day prior to death, but also noted some green discoloration which would have been present for several days. (RT 4/12/95 at 116.)

         Dr. Siefert and Dr. Howard observed that Rachel had bruising around the left side of her face and behind her ear, as well as bleeding into both ear drums, consistent with a slap or blow to the side of the head. (RT 4/6/95 at 90-91; RT 4/12/95 at 140-41.) Dr. Howard noted that Rachel also sustained internal bleeding due to blunt force trauma to the back of her neck, as well as diffuse bleeding into the deep layers of her whole scalp. (RT 4/12/95 at 137-38.)

         Rachel had four or five small bruises on her right forearm and several on her right hand, as well as six bruises on her left forearm and hand, injuries typically associated with trying to ward off an impact, known as defensive type wounds. (RT 4/6/95 at 85-87, 88- 89; RT 4/12/95 at 39-40, 150-51.)

         Dr. Howard opined that the bruises and abrasions on Rachel's hand and arm were inflicted approximately one day prior to death. (RT 4/12/95 at 113-14.) This included swelling in her left middle finger that indicated injury to bone or ligaments; this injury would have been painful and noticeable within an hour of its infliction. (RT 4/6/95 at 89, 104-05; RT 4/12/95 at 114.)

         Dr. Howard identified abrasions and contusions on Rachel's right and left thigh, both knees, and her right leg; he opined that they varied in appearance from less than a day old to approximately five days old. (RT 4/12/95 at 113.) He indicated that much of the bruising on Rachel's front side was consistent with having been inflicted by knuckles but he could not identify with any particularity what actually was used to inflict the injuries. (Id. at 126, 160.)

         Rachel had contusions and abrasions on her back, her buttocks, and on the back of her left thigh, consistent with being dragged across a rough surface or with fingernail scrapes. (Id. at 112; RT 4/6/95 at 41, 93.) Based on the colors of the bruising, and the presence or absence of scab formation, Dr. Howard opined that these injuries occurred within one to two days prior to her death. On her front torso, Rachel had 20 to 30 bruises, large areas of abrasions, and a red bruise area under her right arm. (RT 4/6/95 at 93-94; RT 4/12/95 at 115.) Dr. Howard opined that some of these bruises were recent, occurring within the prior day to two days, while others were of a coloration indicating an origin of several days prior to death. (RT 4/12/95 at 115.) There was a linear bruise pattern to the right of her navel; Dr. Howard opined that this injury was consistent with the pry bar found underneath the driver's seat of Petitioner's van but could have been caused by many different objects. (Id. at 78, 128, 160.) Sergeant Pesquiera also testified that the linear contusions or bruises on Rachel's abdomen were consistent with the pry bar found in Petitioner's van. (Id. at 78.)

         Dr. Siefert opined that Rachel's bruising would have begun to appear within a few hours of infliction, and assessed that 95 percent of Rachel's injuries had occurred within 12 to 24 hours before her death. (RT 4/6/95 at 121, 128, 103-108, 111, 127; RT 4/12/95 at 94.) Dr. Siefert noted that some of the bruises were a few days old, including the bruising beneath Rachel's eyes. (RT 4/6/95 at 103, 105, 111; RT 4/12/95 at 37.) Dr. Siefert concluded that Rachel had suffered non-accidental trauma, possibly at multiple times by multiple mechanisms. (RT 4/6/95 at 128-29.) Similarly, Dr. Howard explained that the number and multiple locations of the injuries were not consistent with a simple childhood accident, but rather were consistent with Rachel having been beaten. (RT 4/12/95 at 137.) He concluded that all of the external injuries he documented, which he assessed as having been inflicted within one day of death, were consistent with having been inflicted between the hours of 2:00 p.m. and 5:30 p.m. on the day prior to her death. (Id. at 117.)

         On cross-examination, defense counsel confirmed with Dr. Siefert that 95 percent of the bruises were formed within the 12 or 24 hours before death, but that this estimate was dependent on factors-such as the child's metabolism and the amount of force used to inflict the injury-that were unknown to Dr. Siefert. (RT 4/6/95 at 127-28.) Dr. Siefert agreed that some of the bruises, as well as the scalp injury discussed below, could have been caused by Rachel falling out of a van. (Id. at 129.) Dr. Siefert admitted on re-direct examination that there was “no way to really know” based on the appearance of the bruises how long each one took to develop after the blunt injury that caused it. (Id. at 134.) Dr. Siefert concluded that the totality of Rachel's injuries indicated that the trauma was nonaccidental and perhaps occurred at multiple times or by multiple mechanisms. (Id. at 135.)

         c. Scalp Injury

         Rachel had a head laceration, above and behind her left ear, which was one inch long and went down to the skull bone. Dr. Howard assessed it as consistent with having been caused by a blunt force object with a relatively straight edge, consistent with the pry bar found in Petitioner's van. (RT 4/12/95 at 121, 123.) Based on the injury's external and microscopic appearance, he opined that it was typical of having been inflicted one to two days prior to death but was consistent with occurrence between 2:00 p.m. and 5:30 p.m. on May 1. (Id. at 116-17.)

         d. Vaginal Injury

         Sergeant Pesquiera testified that upon examination of Rachel's body, she observed discoloration on the outside of her labia and pooled, bright red blood on the inside. (RT 4/12/95 at 42.) Dr. Howard determined that Rachel had blunt force injuries to her labia, bruising and scrapes, and a half-inch tear to her vagina. (Id. at 134.) Dr. Howard concluded that the injury to Rachel's genitalia occurred about one day prior to her death, consistent with the time frame of “dozens” of Rachel's other injuries, (id. at 133, 136), and that these injuries were non-accidental, painful, and consistent with penetration or attempted penetration. (Id. at 134-36).

         e. Fatal Small Bowel Injury

         Dr. Howard determined that Rachel died of blunt abdominal trauma that caused a laceration of the small bowel and that her death was a homicide. (RT 4/12/95 at 155.) Dr. Howard explained that, internally, Rachel had sustained blunt force injury to her abdominal organs causing a tear of the small bowel and bruising of the tissues around the small bowel, the wall of the large bowel, and the tissues connecting the intestine to the back of the abdominal wall. (Id. at 141-42.) The rupture of her bowel caused inflammation and irritation of the lining of the abdominal tissues, a condition called peritonitis. (Id. at 145.) When this type of damage is not repaired, Dr. Siefert explained it typically causes death over a period of hours to days, or sometimes weeks. (RT 4/6/95 at 115). The amount of force required to rupture a healthy bowel is equivalent to a fall from more than two stories, an automobile accident at greater than 35 miles per hour, or a forceful directed blow to the abdomen (id. at 113-14; RT 4/12/95 at 151, 153-54); Dr. Siefert did not believe enough force for such an injury could be inflicted by a child under the age of six. (RT 4/6/95 at 116.) Rachel would have experienced pain at the time of the blunt force injury; Dr. Howard indicated she would then have had continual abdominal pain while Dr. Siefert stated that the pain might decrease initially, but would not go away. (Id. at 119; RT 4/12/95 at 146.) Over the next several hours, a person with peritonitis would lose bowel function, causing nausea, vomiting, and dehydration. (RT 4/6/95 at 119-20; RT 4/12/95 at 146.) Dr. Howard opined that the “injury is typical of having occurred about one day prior to death, ” in the same age range as her other injuries, including the scalp, genital, and external injuries. (RT 4/12/95 at 148.) Dr. Howard opined that the fatal injury could have occurred in the 24 hours prior to her death, possibly in the time between the hours of 2:00 p.m. and 5:30 or 6:00 p.m. on May 1. (Id. at 148-49.)

         Defense counsel cross-examined Dr. Howard and established that Rachel had no broken bones, and that if she had been hit hard enough with the pry bar, it might have resulted in fractures of the skull or ribs, depending on the amount of force used. (Id. at 158- 59.) Dr. Howard agreed that while the pry bar was consistent with the injuries, any number of objects could also have caused the injuries. (Id. at 159-60.) Based on Dr. Howard's testimony, defense counsel argued that if the pry bar had been wielded by an adult, it would break ribs and fracture skulls, and would have done incredible damage to a small child. (Id. at 112.)

         Defense counsel asked no questions of Dr. Howard regarding the timing of any of Rachel's injuries.

         f. Bloodstain Evidence

         The State also presented testimony and evidence from Sergeant Pesquiera, Arizona Department of Public Safety Criminalist Edward Lukasik, and PCSD Detective Clark to support the State's theory that Rachel was assaulted in Petitioner's van. Blood consistent with having come from Rachel was found on a Circle K bag, on carpeting and the front passenger seat's upholstery in Petitioner's van, and on blue jeans worn by Petitioner at the time of his arrest. (RT 4/7/95 at 118, 120-21, 126-27; RT 4/11/95 at 106-7, 109; RT 4/12/95 at 55-59.) No. blood was found on the tools collected from Petitioner's van, including the pry bar and the blue and metal pipes. (RT 4/11/95 at 100-01; RT 4/12/95 at 85-87.)

         Rachel's pajamas and underwear were taken into evidence, and oral and vaginal swabs were also taken during Rachel's autopsy. (RT 4/12/95 at 43-47.) Serological testing revealed no presence of semen or seminal fluids on the vaginal swabs or on Rachel's pajamas or her underwear. (RT 4/11/95 at 90, 111-12.) A substance consistent with vomit was found on Rachel's pajamas and a sleeping bag. (RT 4/11/95 at 98-99; RT 4/12/95 at 45-46.)

         Sergeant Pesquiera also collected clothing from Petitioner on the day of his arrest, testifying that she would expect to find blood on the clothing of a driver in the car at the time that Rachel was struck. (4/12/95 at 61, 74-75.) There was a trace of blood not further identified on the red T-shirt and boots, but not the denim jacket, worn by Petitioner at the time of his arrest. (RT 4/11/95 at 95, 108-09; RT 4/12/95 at 61-62.)

         Sergeant Pesquiera testified that fingernail scrapings were taken from Rachel but there was nothing detected under her nails. (RT 4/12/95 at 90-91.) Despite some of Rachel's abrasions appearing as if she had been scratched, Sergeant Pesquiera explained that Petitioner's fingernails were not analyzed to determine if any of Rachel's blood or skin was present because there was a lot of oil and other things under his nails. (Id. at 90-91.)

         Sergeant Pesquiera testified that she was not an expert in the field of bloodstain evidence, but “could appreciate what type of stains they were in relationship to where the victim could have been and the assailant could have been.” (RT at 4/12/95 at 28, 63-65.) Sergeant Pesquiera explained that blood spatter is seen when an area of injury has static blood on it and then is struck or shaken in some way like a blow or blunt force trauma causing the blood to spatter out. (RT 4/12/95 at 73.)

         Sergeant Pesquiera submitted samples of several items that appeared to be bloodstains taken from multiple locations in Petitioner's van: from carpet between the two front seats and partially behind the passenger seat, from carpet and wood chips located partially behind and underneath the passenger seat, from a cigarette package, from a Circle K bag located behind the driver's seat, and from the right front passenger seat. (RT 4/12/95 at 55-60.) Over defense counsel's objection, Sergeant Pesquiera testified that a bloodstain identified as Item V6 appeared to be “an impression stain or a stain where the blood has actually soaked through and has been in that position for quite a while to where it soaks down through the carpeting.” (Id. at 72.) Sergeant Pesquiera distinguished the impression stain on the carpeting from the spatter stains found on the van's passenger seat and another portion of the carpet identified as Item V7, which she testified were consistent with a person already bleeding being struck or shaken causing the blood to spatter out. (Id. at 72-73.) Because Dr. Siefert had testified that bleeding stops very quickly after death (RT 4/6/95 at 79), the State argued, based on the impression stain, that Rachel's “head was bleeding as she was laying in the back of that van because she had been beaten and hit with that pry bar as part of that sexual assault, and this is where the sexual assault occurred. . . . on the third trip away from the house.” (RT 4/13/95 at 97.) The State also argued-based on the evidence of spatter stains found on the passenger seat, floor of the van, and the right sleeve of Petitioner's shirt-that after the assault, Petitioner put her in the passenger seat of the car and kept hitting her “trying to make her shut up” (id. at 97-100), and the blood could not have gotten in the van on the way to the hospital because Rachel was already dead and therefore was not bleeding anymore. (Id. at 137.) Defense counsel offered no expert testimony to challenge Sergeant Pesquiera's opinions, but rather argued that Sergeant Pesquiera was not an expert in blood spatter and the State could have presented an expert if they had wanted to. (Id. at 113.)

         2. Events of April 30-May 2, 1994

The State presented evidence from several witnesses that supported its theory that Rachel was in the sole care of Petitioner during the afternoon of Saturday, May 1, when the fatal injuries allegedly were inflicted.

         Becky testified that she had been living in Petitioner's trailer for a few months with her mother, Angela; her siblings, Jonathon and Rachel; and Petitioner's daughter, Brandie. (RT 4/11/95 at 18-19, 60.) Petitioner never hit Becky, and she never saw him hurt Rachel or her brother. (Id. at 65-66.) There was a week, however, when Rachel started “being scared” of Petitioner, and would not go to Petitioner when he called her over or when he asked her to go with him on a ride. (Id. at 25-28.) He did sometimes hit Rachel “[f]or play, ” which sometimes made her cry. (Id. at 43.) Becky testified that Rachel seemed fine and ate dinner on Saturday night, April 30, and was not sick or throwing up. (Id. at 29.) Becky stated she saw Petitioner leaving with Rachel in the van three times on May 1. (Id. at 37- 38.)

         Becky testified that on Sunday morning, May 1, Becky, Rachel, and Jonathon got up early, watched cartoons, and ate lunch until Petitioner got up around 2:30 or 3:00 p.m. when a friend of his stopped by to see him. (Id. at 30-33, 62.) Shortly after Petitioner's friend left, Petitioner gave Becky and her brother permission to ride their bikes. (Id. at 36.) After riding their bikes around the trailer court for an hour, Becky saw Petitioner leave in his van on the first trip with Rachel, telling Becky he was going to the store for food. (Id. at 37, 64.) He returned an hour and a half later with milk and corn dogs. (Id. at 63, 69.) Becky testified that Rachel seemed okay after this trip, she was not sick or crying. (Id. at 70.)

         Becky described the first trip when questioned by the prosecutor and the second and third trips when cross-examined by defense counsel. Becky testified that approximately fifteen to twenty minutes after returning home from the store and putting away the groceries, Petitioner left again and was gone for about thirty minutes. (Id. at 70.) Becky saw Rachel again after this trip, and testified that she seemed “okay” at that time. (Id. at 70-71.)

         When asked by defense counsel about the third trip in the van, Becky testified that Petitioner took Rachel to his brother's house. (Id. at 79.) Becky had no idea how long they were gone, but stated that they were back before Becky left for her friend's house, around 5:00 or 6:00 p.m. (Id. at 71, 79.) The State argued that it was during this third trip that Petitioner assaulted Rachel in the back of the van. (RT 4/13/95 at 93-94.)

         Becky testified that when she was putting her bike away before going to her friend's house, she saw that Rachel was at home and that Rachel was standing and looked fine. (Id. at 41-43.) Around 6:30 p.m., when Becky returned from her friend's house, Becky testified that Rachel was on the couch; she was pale, her head was bleeding, she was vomiting, and she had bruises on her face, hands, and fingers. (Id. at 44-46, 49-50, 72.) This was the first time Becky saw her mother awake that day. (Id. at 41.) Petitioner left for a time, and when he returned, Angela took Rachel outside where Petitioner and Angela had an argument. (Id. at 48-49.)

         The State presented evidence that the St. Charles family, who lived in a bus at a transient camp, got a visit from Petitioner sometime on May 1; Ron St. Charles (“St. Charles”) thought Petitioner seemed angry. (RT 4/12/95 at 7-9, 17.) St. Charles testified that he did not know if anyone else was in the van with Petitioner, and that Petitioner did not get out of his van.

         Michael Fleming (“Michael”), Petitioner's neighbor at the Desert Vista trailer park, testified that on May 1 he saw Rachel looking sick between 2:00 and 5:00 p.m.; she was pale with dark circles under her eyes, and she looked wet and like she wanted to vomit, but he did not see any blood, bruising, or scrapes. (RT 4/7/95 at 164-66, 168, 171-73.) Michael Fleming saw his wife, Stephanie Fleming (“Stephanie”), pick Rachel up and take her back to Petitioner's trailer. (Id. at 165-66.)

         Petitioner's sister-in-law testified that Petitioner, Angela, and the children were supposed to attend Petitioner's nephew's birthday party on May 1, but they never showed up. (RT 4/11/95 at 119-24.)

         Norma Lopez (“Norma”) testified that on May 1 she sent her children-eight-year-old twins Ray and Laura Lopez-to the Choice Market on Benson Highway at 3:00 p.m. or 4:00 p.m. (RT 4/7/95 at 50.) When they returned, Ray told Norma he saw a yellow van with a man inside hitting a little girl. (Id. at 51.) The children described the man as a white man with messy brown hair driving a yellow van and the girl as little and blond-haired. (Id. at 51-53.) The twins saw him driving with one hand and hitting the girl in the face and chest with the other, and they could see the girl crying. (Id. at 51.) The next day on the news Norma heard that a man had been arrested in relation to the death of a little girl. (Id. at 53-54.) When she had the children watch the news, they identified that person as the man they had seen in the van. (RT 4/7/95 at 55.) One or two days later, Norma reported the twins' identification by calling 911. (Id. at 56.)

         At Petitioner's trial, Ray testified that he had gone to the Choice Market with Laura around 5:00 p.m. on a Sunday. (RT 4/7/95 at 8-9.) He testified that, on his way home, he saw a white man with bushy hair in a yellow van, driving with one hand while hitting a little, four-year-old white girl hard with his right hand and elbow. (Id. at 9-11, 14.) He demonstrated how the man hit her with the back of his right fist. (Id. at 12-12.) Ray testified that the man hit the girl three times. (Id. at 11-13.) He testified he could not see the girl's face, but that she was crying. (Id. at 13.) When pressed by the prosecutor, he agreed he did not know whether she was crying or not. (Id.) He also admitted that he had previously told the police that he saw her with her mouth open and could see that she was crying. (Id. at 13-14.) He did not see the driver's face, only his hair from behind. (Id. at 25-26.) He could not identify Petitioner in court, but was able to identify a picture of Petitioner from the day of his arrest. (RT 4/6/95 at 175; RT 4/7/95 at 18.) Ray was also unable to identify a picture of Petitioner's van as the yellow van he saw that day because it did not have windows in the side. (RT 4/7/95 at 29-30.) Bruner established, through cross-examination, that Ray did not see Petitioner's face or any facial hair, only his hair from behind, and questioned whether he could see up into the van given his height. (Id. at 25-27.)

         Laura testified that she recalled seeing a white man driving a yellow van on her way home with Ray from the Choice Market. (Id. at 34-37.) She said she could see a little bit of the man's face, and he was ugly with puffy hair and was hitting a little, white blonde girl. (Id. at 36-38.) She testified she could not see the girl's face, but the man was hitting the girl on the left side of her face with his elbow. (Id. at 36-38.) The prosecutor asked Laura if she remembered telling the police she could see that the girl was crying and she could see her face; Laura agreed and remembered that she was crying. (Id. at 38.) Bowman established, through cross-examination, that Laura only saw them through the front window of the van and could see just “a little bit” of the side part of both the man and girl's faces. (Id. at 43-44.) Laura also admitted that the little girl's face was not higher than the windows. (Id. at 44.) She remembered seeing the man from the van on the news that same day. (Id. at 40, 45.)

         Sara Petrilak, a clerk at the Quik-Mart on Benson Highway, testified that Petitioner went into the store on May 1, 1994 between 3:15 p.m. and 5:00 p.m. (RT 4/7/95 at 142, 144, 159.) She did not know Petitioner's name, but recognized him as a regular at the store. (Id. at 145-46, 149.) The store clerk testified that Petitioner got ice and that he was with a little girl who sat on a ledge outside the store. (Id. at 147-48.) On cross-examination, Petrilak ...