United States District Court, D. Arizona
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
...