Opinion
Case No. 01-3368-DES.
March 11, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a prisoner confined at the Lansing Correctional Facility.
PROCEDURAL HISTORY
On March 4, 1987, petitioner was convicted of first degree murder, aggravated kidnaping, and aggravated robbery. On December 8, 1989, petitioner's conviction was affirmed on direct appeal. State v. Packard, 784 P.2d 365, 1989 Kan. LEXIS 200 (Kan. 1996) (unpublished opinion). On May 5, 1996, petitioner filed a motion pursuant to K.S.A. § 60-1507. This motion was denied by the District Court of Sedgwick County on May 28, 1998 and this decision was affirmed on appeal on April 14, 2000 Packard v. State, No. 81,150 (Kan.App. 2000) (unpublished opinion). The Kansas Supreme Court denied the petition for review on September 27, 2000. Packard v. State, No. 98-81150-AS, 2000 Kan. LEXIS 743 (Kan. 2000).
Petitioner commenced this action on September 5, 2001, raising the following grounds for relief: (1) ineffective assistance of counsel, (2) failure to disclose material exculpatory evidence, and (3) the post-conviction motion court's conclusion regarding a state rule of evidence violated due process.
Respondent has filed an answer and return (Doc. 9). Petitioner did not file a traverse. FACTUAL BACKGROUND The facts surrounding petitioner's claims were found by the post-conviction motion court as follows:
Ms. Marstellar disappeared from the Brookside Club in Wichita in the early morning hours of Thursday, June 5, 1975. Her body was discovered on Sunday, June 8, 1975, lying in a hedgerow near a small pond northeast of town. No blood was found on Ms. Marstellar's slacks or at the scene. Her slacks, like her blouse, had rolled up on her body. This fact, in addition to dirt streaks on the back of the slacks, made it evident to law enforcement officers at the scene where the body was discovered and at a later autopsy that Ms. Marstellar had been dragged by her feet.
Ms. Marstellar's autopsy was conducted by Dr. William Eckert, who found that the cause of death was a stab wound to her liver. According to Dr. Eckert's autopsy report, the fatal wound was either 2.5 centimeters or 3.0 centimeters in length and 10 centimeters or 4 inches in depth. Dr. Eckert also variously described this wound to law enforcement officers investigating the homicide in the period following the autopsy as 2.0 centimeters and 3.0 centimeters in length. Dr. Eckert also told law enforcement officers that the fatal wound was made with a thin knife rather than a thicker hunting knife. Dr. Eckert, as well as officers at the scene of the body's discovery and at autopsy, described and/or photographed maggot infestation of Ms. Marstellar's wounds, including the fatal wound to her liver, and decomposition. Dr. Eckert and the law enforcement photographer who took photographs at the autopsy also documented additional wounds, including wounds from blows to the back of Ms. Marstellar's head. According to Dr. Eckert, the head wounds could have disabled Ms. Marstellar or rendered her unconscious.
Prior to her disappearance, Ms. Marstellar had spent the evening with friends at the Brookside club. Within the hour before Ms. Marstellar's departure from the club, she danced and argued with a white male whose identity was, at that time, unknown. This was observed by Ms. Marstellar's friends, including Rosemary Fortier, Katherine Long, Marvin Tischauser, and Don Mains, and by Brookside barmaid Connie Riner.
The only witness to Ms. Marstellar's later abduction from the parking lot of the Brookside was Brian Unruh, a busboy at an adjoining restaurant. Mr. Unruh consistently told investigators that a woman answering Ms. Marstellar's description had been taken from the Brookside parking lot by two men, one taller than the other; that she entered or was pushed into the back seat of a blue car with two stripes on the sides; and that the car then left the parking lot. He never said that Ms. Marstellar was abducted by one man acting alone.
Early law enforcement suspicion centered on Ms. Marstellar's boyfriend, her ex-husband, and others. No charges were filed and no arrests were made in this period. On October 7, 1976, Clyse Craig was arrested in Webb City, Missouri, by Jasper County, Missouri, law enforcement officers investigating the murder of Helen Poindexter of Webb City. Ms. Poindexter, like Ms. Marstellar, suffered a stab wound that lacerated her liver. Also on October 7, 1976, Jasper County officers interviewed Robert Lyle in Joplin, Missouri. Robert Lyle is a lifelong friend of Mr. Craig's. Mr. Lyle reported that Mr. Craig had told him sometime before that Mr. Craig had been picked up and questioned by Wichita authorities in connection with the death of a woman in or around Wichita. According to Mr. Craig, Mr. Lyle said, the woman was found drowned in a small pond and Mr. Craig had been with her earlier on the night of her death.
On December 1, 1976, Mr. Craig came to the attention of Sedgwick County law enforcement for the first time. Detective Carl Edwards of the Independence, Missouri, Police Department contacted then Captain Lyman Reese of the sheriff's Department. Detective Edwards informed Captain Reese that Mr. Craig had become a suspect in the Poindexter homicide in Webb City as well as the stabbing death of Gailie Skurlock in Independence. He said that in the course of the investigation of Mr. Craig, Mr. Craig had made a reference to the killing of a woman in Wichita, specifically that Mr. Craig had picked up a woman in Wichita and that she was later found dead beside a farm pond. Captain Reese discussed the facts of the Marstellar case with Detective Edwards, and Detective Edwards stated that the three murders were somewhat the same. After this contact, Mr. Craig became the focus of the Marstellar murder investigation. He remained the sole focus until at least January 1979.
Mr. Lyle made several additional statements regarding his conversation with Mr. Craig. The first of these was on January 21, 1977. Although no official report of the specific content of this statement has been produced, it is evident that this statement by Mr. Lyle formed the basis of two sworn statements signed by Captain Reese and then Detective Leo Willey on February 23, 1977. These two sworn statement submitted to the court in Jasper County, Missouri, in support of a search warrant issued that day for Mr. Craig's vehicle, read in pertinent part: "On October 6, 1977, Robert Lyle had a conversation with Clyse Craig while seated in Mr. Craig's vehicle parked in Mr. Lyle's driveway. At that time, Clyse Craig told Robert Lyle that he had killed a woman in Wichita and her body had been found near a farm pond." Captain Reese also noted that, while Mr. Craig talked to Mr. Lyle in Mr. Lyle's driveway he was stabbing a box in the front seat of his car with a long-bladed knife. Also in January 1977, law enforcement officers from the Wichita area met with officers from the Webb City/Joplin area.
Also in January 1977, on at least two occasions, Sedgwick Count [sic] Sheriff's Department officers contacted Mr. Craig' [sic] ex-wife, now Christine Astle, in Wichita. According to the officers, Ms. Astle told them that Mr. Craig had been in Wichita and not with her on the night of Ms. Marstellar's murder. She also supplied them with a photograph of Mr. Craig, which was made to look like a mug shot to be used in a photo lineup.
On February 16, 1977, Detective Jim Bogle of Sedgwick County Sheriff's Department showed the photo lineup to Ms. Fortier and obtained an identification of Mr. Craig as the man who danced and argued with Ms. Marstellar shortly before her disappearance. Ms. Fortier identified Mr. Craig without hesitation, prompting a description of the identification as positive. The same week, Mr. Tischauser also identified Mr. Craig as the man who danced and argued with Ms. Marstellar on the night of her disappearance.
During the week of February 21, 1977, then Sheriff Johnnie Darr told the news media that he hoped to obtain an arrest warrant within a few days. He later modified that statement, saying additional work was needed before charges would be considered. One draft of the February 23 search warrant affidavit eventually signed by Captain Reese and Detective Willey recites that there is a probability that charges will be filed against him. Sheriff Darr, Captain Reese, Detective Wiley, and Detective Terry Sproul spent part of that week in the Joplin, Webb City area, arranging for the search of Mr. Craig's car, interviewing Mr. Craig, and interviewing Mr. Lyle. This first search of Mr. Craig's car uncovered what appeared to be dried blood on the carpet of the passenger side of the front seat and revealed that the front seats had been changed from the original. Also, during his interview, Mr. Craig first denied and then admitted twice that he had told people in Joplin he had picked up a woman in Wichita who wound up dead. He then stated that the woman was actually alive, went by the name "Irish," and had been picked up at the Skylander Tavern before she left his car and went skinny-dipping. According to Sheriff Darr's report, Mr. Craig launched into his story each time he was asked about the Brookside and Ms. Marstellar. Later that week, Detectives Willey and Sproul succeeded in establishing that Mr. Craig was a regular patron of a variety of bars and motels in Wichita in the relevant time period. They also interviewed Ms. Astle's father and learned that he believed that Mr. Craig's car seats were replaced after June 1975. They also located and attempted to interview "Irish," aka Patricia Teresa Leak; they determined that she was too mentally disturbed to give any useful information.
On March 4, 1977, a second search of Mr. Craig's car was conducted, this time supported by a sworn statement signed by Detectives Willey and Sproul. This statement read in pertinent part: "Dets. Willey and Sproul believe that there is probable cause to include that the offense of first degree murder, Kan. Stat. Ann 21-3401 (Weeks 1974), has been committed; that Clyse Craig murdered Carol Marstellar in the early morning hours of June 5, 1975, in Sedgwick County, Kansas." During this search, hairs were collected from the car and a luminol test was performed on the substance that appeared to be dried blood. Although the luminol test was positive, it destroyed the sample and prevented further testing. Also, Detective Wiley attempted to obtain a seizure order which would permit him to take Mr. Craig's car to Wichita but was unsuccessful.
The hairs taken from Mr. Craig's car were later compared to hairs taken from the body of Ms. Marstellar, when it was exhumed in March 1977. No matches were established.
Sedgwick County Sheriff's Department officers continued to consult with their Missouri counterparts on the prosecution of Mr. Craig in the Poindexter crime and to explore whether Mr. Craig could be linked to any other unsolved similar murders in the region. (The Poindexter prosecution had its problems, including the fact that Mr. Craig's bloody clothes were washed.) They also pressed then Assistant District Attorney Paul Clark for prosecution in the Marstellar case. Mr. Clark refused to charge Mr. Craig.
In the fall and winter of 1978, before Mr. Craig was tried a third time for the Poindexter crime, his public defender sent three letters to Mr. Clark, attempting to persuade him to clear Mr. Craig in the Marstellar homicide. None of the lawyer's efforts to establish an alibi for Mr. Craig were successful, and Mr. Clark refused to state that Mr. Craig would not be prosecuted. Instead, Mr. Clark, Sheriff Dar,, and Captain Reese made another trip to Joplin in December 1978, where a report by Detective Willey indicates, they obtained new information related to Mr. Craig.
Officer notes produced for the first time in this action confirm that the Sedgwick County officers' enthusiasm for prosecuting Mr. Craig for the Marstellar crime persisted beyond Mr. Craig's acquittal in the Poindexter crime in January, 1989. Captain Reese's final note betrays his impatience with the Missouri authorities and his anxiety that Mr. Craig was on the street.
. . . .
It was not until April 1996 that Mr. Packard became a suspect in the Marstellar homicide. At that time, his ex-wife, Marcia Skidmore, called Wichita Crimestoppers and reported that he had told her he used his knife on a woman in Wichita in 1975. She later directed law enforcement officers to Edgar Leon Hayes, who had been a friend of herself and her then-husband, Mr. Packard at the time of the murder. Sedgwick County Sheriff's Deputies Rick Hodge and Sproul located Mr. Hayes in Denver and interrogated him. After an hour and a half of denials, and after being told that the officers had talked to Mr. Packard and knew Packard committed the crime, Mr. Hayes confessed assisting Mr. Packard when Ms. Marstellar was abducted. He stated that he drove to the outskirts of town while Mr. Packard rode with Ms. Marstellar in the back seat, and that he looked away when Mr. Packard ordered Ms. Marstellar out of the car and forced her to kneel down. Mr. Hayes said he than saw Mr. Packard drag Ms. Marstellar from under her arms away from the side of the car and into the hedgerow. At that point, Mr. Hayes said he could not see Mr. Packard; however, Mr. Hayes assumed from the order in which Mr. Packard allegedly disappeared and reappeared . . . that Mr. Packard first stabbed Ms. Marstellar with is [sic] knife and then hit her with a tire iron he obtained from Mr. Hayes' car. As a result of Mr. Hayes' statement to police, he and Mr. Packard were charged in the Marstellar homicide. Mr. Hayes' statement to the detectives and his trial testimony were corroborated by other evidence.
Mr. Packard was arrested on May 16, 1986, in Tulsa, where he was living with his current wife, Vickie. His knife, which had been identified by Mr. Hayes as the murder weapon, was seized by law enforcement authorities who searched Mr. Packard's apartment. Mr. Packard, who had no prior criminal record, denied — and continues to deny — any involvement in the Marstellar murder.
. . . .
In preparing Mr. Packard's defense, Mr. O'Hara [defense counsel] relied on what is known as the district attorney's "open file" policy to obtain any information relevant to the case, including any information exculpatory to their client . . . [Neither defense counsel nor law enforcement] has any independent recollection of exactly which documents were turned over to Mr. O'Hara.
. . . .
At the time of the prosecution of Mr. Packard, Ms. Swegle [the prosecuting attorney] made it her practice to rely on law enforcement to give her copies of all relevant documents, including all material exculpatory to the defendant, following up only as she felt necessary. Ms. Swegle did not believe that information about Mr. Craig was exculpatory to Mr. Packard. Thus any information that Mr. O'Hara eventually received regarding Mr. Craig was information that Ms. Swegle felt no obligation to produce. On the contrary, whatever was given to him was given merely because of her usual practice of giving `everything' she received from law enforcement to the defense attorney. She saw no reason to seek additional information from law enforcement.
. . . .
Mr. O'Hara never discussed Mr. Craig or his potential significance with Mr. Packard or his wife. He never obtained or showed the Packards or any other witness Mr. Craig's photograph. Neither Mr. O'Hara nor Mr. Tousley recalls whether they ever explained to Mr. Packard why they pursued a defense theory that Mr. Hayes acted alone, even though Mr. Unruh had always told law enforcement and would later testify at trial that two men were involved in Ms. Marstellar's abduction. Mr. Tousley does not recall Mr. Unruh being an important witness in the case against Mr. Packard. Mr. Tousely refers to Mr. Craig as `nothing more than a footnote' in the case and says he and Mr. O'Hara never discussed featuring him and/or the investigation of him in Mr. Packard's defense. They never attempted to establish a link between the two beyond the mere fact that one admitted being at the Brookside on the night of Ms. Marstellar's disappearance and the other were placed there by witnesses. Mr. Tousley testified that evidence against uncharged subjects is useful for a defense attorney to convince himself or herself of the client's innocence but dangerous in front of a jury because the jury gets the mistaken impression that the burden of proof has shifted to the defense.
The only documented pretrial reference to Mr. Craig by Mr. O'Hara came in Mr. Packard's preliminary hearing, when Mr. O'Hara asked Ms. Fortier if she observed Ms. Marstellar dancing and fighting with someone on the night she disappeared. Ms. Fortier responded negatively. Mr. O'Hara, who has practiced criminal defense law in Wichita for approximately 20 years, has made use of evidence of another perpetrator's guilt before, including before Judge Sanborn. He also has seen such evidence lead to acquittal. Mr. O'Hara made no mention of Mr. Craig at Mr. Packard's trial and never sought Judge Sanborn's permission to do so.
Prior to trial, Mr. Packard advised Mr. O'Hara that Ms. Skidmore, had a history of mental instability and had been hospitalized in Colorado in 1982. He further advised Mr. O'Hara of the names and whereabouts of Ms. Skidmore's family members in Oklahoma who would have additional and more current information. Other than obtaining verification of the hospitalization his client mentioned, Mr. O'Hara never pursued any additional investigation of Ms. Skidmore's mental health history or attempted to retain a psychological expert who could assists [sic] in Mr. Packard's defense. As a result, Mr. O'Hara never learned that Ms. Skidmore had been rehospitalized and had been diagnosed as a chronic schizophrenic. At trial, Mr. O'Hara did cross-examine Ms. Skidmore regarding her 1982 mental problems. The cross-examination established that her resulting hospitalization for delusions and hallucinations roughly coincided with the time period when she had asserted that Mr. Packard had held her hostage and that she had once been found walking nude along a Colorado highway. He did not challenge her two assertions that she had suffered no later mental instability, i.e., between 1982 and trial. He did not ask about any subsequent or prior hospitalizations, nor about any diagnosis, treatment, medications, or current level of functioning.
"Expert testimony introduced at the hearing on the motion for new trial indicated that Ms. Skidmore's condition was not static. Dr. Howard Brodsky, a psychologist, testified that a person with Ms. Skidmore's diagnosis can be an accurate factual reporter of events. There was evidence the stress of trial precipitated her breakdown after trial. There was no evidence that Ms. Skidmore was incompetent or impaired when she contacted the police in 1986, or when she testified at the preliminary hearing or trial. Her statements remained quite consistent and were corroborated by the state's key witness, Edgar Leon Hayes, who was with defendant during the abduction and killing of the victim. Another witness stated defendant had told her he had killed a Wichita woman. Other corroborative evidence was introduced." State v. Packard, [Case No. 61, 119, slip op. at 7.]
. . . .
At trial, Mr. Hayes testified that, after Ms. Marstellar was taken from the parking lot of the Brookside Club, he then drove her and Mr. Packard, on Mr. Packard's instructions, to a rural area outside of Wichita. According to Mr. Hayes, Mr. Packard then exited the car with Ms. Marstellar, ordered her to kneel down and raised up his hand and arm to deliver a karate chop to the back of her neck. Mr. Hayes then testified that, although he did not observe the actual blow, he saw Mr. Packard drag Ms. Marstellar, by holding her under her arms from the rear, into woods by the side of the road. Mr. Packard had his knife with him and stabbed Ms. Marstellar while he was out of sight. Then, according to Mr. Hayes, Mr. Packard returned to the car, claiming Ms. Marstellar would not die, and removed a tire tool from the car's rear hatch. Mr. Packard then went back to Ms. Marstellar, finally disposed of her with the tire tool, and returned to the car. Mr. Hayes also identified Mr. Packard's hunting knife as the murder weapon.
. . . .
Mr. O'Hara did not attempt to secure a defense pathologist to assist in a challenge to Dr. Eckert's testimony that Mr. Packard's knife was consistent with the fatal wound. . . . When Dr. Eckert took the stand at trial, he testified that the entry wound on Ms. Marstellar's [sic] abdomen was 2.5 centimeters in length when gaping and 3.0 centimeters in length when "flattened out" or proximated . . . Mr. O'Hara got Dr. Eckert to admit that a downward moving knife will sometimes leave a cut a little wider than the knife on the skin. Mr. O'Hara also asked if Dr. Eckert had earlier told a police officer that a kitchen or butcher knife must have been used rather than a hunting knife. . . . Since trial, Dr. Eckert has recanted his trial testimony regarding the ability of a knife such as Mr. Packard's to make the wounds he observed on Ms. Marstellar's body.
. . . .
Had Dr. Merchant [an expert hired by petitioner for his § 60-1507 motion] been called to testify at Mr. Packard's trial, he would have testified that Mr. Packard's knife is too long, too wide, and too thick to have made Ms. Marstellar's fatal wound.
. . . .
Had Dr. Merchant been called to testify at Mr. Packard's [trial] he also would have testified that the condition of the body — including the position of the clothing, the dirt streaks on the slacks, and abrasions around Ms. Marstellar's head wound was inconsistent with Mr. Hayes' story that Ms. Marstellar was dragged from under her arms . . . . Dr. Corrie May, Sedgwick County coroner, testified at the evidentiary hearing on this Motion on behalf of the state. Dr. May admitted that after reviewing this case, she was unable to concur with Dr. Eckert's trial opinion that Mr. Packard's knife was consistent with Ms. Marstellar's fatal wound. She testified that she could say only that Mr. Packard's knife could not be ruled out. Dr. May agreed that the same could be said for countless knives, including the knife Ms. Astle brought to the evidentiary hearing on this Motion to illustrate the type of knife her ex-husband, Mr. Craig, used to keep in his car.
. . . .
In March of 1980, Movant told Mary Ann Bellamax that he had killed a female in Kansas.
Packard v. State, Case No. 96 C 1209, "Findings of Fact", pp. 2-24 (Dist. Sedgwick Co., Kansas 1998).
STANDARD OF REVIEW
Because Mr. Packard's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
GROUND ONE — INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner alleges his trial counsel was ineffective for: (a) failing to investigate and develop evidence that Clyse Craig committed the murder of Ms. Marstellar, (b) failing to investigate the mental stability of Marcia Skidmore, and (c) failing to investigate and challenge the pathologist's testimony that Mr. Packard's knife was consistent with the knife wound to the victim.
The Sixth Amendment guarantees the right of a criminal defendant to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish an ineffective assistance of counsel claim, petitioner must (1) "show that counsel's performance was deficient," and also (2) "that the deficient performance prejudiced [his] defense." Strickland, 466 U.S. at 687. In order to satisfy the first prong, petitioner must show that his counsel's conduct did not fall within the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). The second prong, often called the "prejudice prong," is met when the petitioner proves that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 695 (defining reasonable probability as a probability that is sufficient to undermine the confidence in the outcome of the trial).
In addition to establishing the oft-quoted two prong test, Strickland also established general guidelines for reviewing ineffective assistance claims. Judicial scrutiny of counsel's performance should be done in a "highly deferential" manner that "eliminate[s] the distorting effects of hindsight," and starts with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89; see also Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
Failure to Investigate and Develop Evidence regarding Clyse Craig.
After reciting the Kansas equivalent of the Strickland standard, the District Court of Sedgwick County concluded that trial counsel was not ineffective because the evidence regarding Clyse Craig was inadmissible. Packard v. State, Case No. 96 C 1209, "Findings of Fact", p. 28. The court reasoned that because the State's case was based upon direct evidence, circumstantial evidence regarding Mr. Craig would have been irrelevant under Kansas' alternate perpetrator rule. In his third ground for relief, petitioner alleges that this rule violates due process and is no longer supportable under current Kansas law. (Doc. 2, pp. 52-55).
At the hearing on his K.S.A. § 60-1507 motion, Mr. O'Hara, lead trial counsel for petitioner, testified that he "thought it would be best to try the case with the defense that the crime was committed by Edgar Leon Hayes by himself. And that was based on the testimony that the defendant gave and that was our defense." (Rec. Vol. 12, p. 52). Mr. Tousley, who acted as second chair at trial, testified that he read through all the discovery provided and that several other suspects were mentioned in addition to Clyse Craig. Id. at p. 109. The defense team was primarily concerned with confronting Hayes' confession and the evidence which corroborated it: "we couldn't get around his confession. We had to just attack it. And our strategy was that he [Mr. Hayes] was the perpetrator of the crime." Id. at p. 110. According to Mr. Tousley, petitioner himself confirmed the viability of this strategy by relating to defense counsel (and later testifying at trial) that Mr. Hayes had confessed to the murders to him. Id. at 111. Mr. Tousley also testified that pointing the finger at another is a dangerous defense strategy which he rarely uses:
It takes away the biggest advantage you have in a case [which] is the burden of proof on the State. . . . [I]f you try to prove another perpetrator of the crime by name and use evidence against him, you've taken on a burden, and you better be able to prove that he did it, because now the jury's gonna decide if you didn't prove that guy did it, they fall back to the accused. . . . And, in this particular case, we would have had the burden to prove that Clyse Craig did this crime, and the reason we didn't try to do that is because all the efforts of the Sheriff and the police failed to prove even probable cause to make an arrest. So we didn't feel we could meet that burden.
Id. at pp. 112-113.
The reasonableness of counsel's investigation into Clyse Craig must be viewed in light of petitioner's assertions that Mr. Hayes confessed to him that he murdered Carol Marstellar. See Strickland, 466 U.S. at 691 ("[w]hen a defendant has given counsel reason to believe that pursuing certain investigations could be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable"); Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1998) ("the reasonableness of an attorney's investigation may critically depend on the information forwarded by the defendant"). Given the concerns counsel had over the dangers of proving Mr. Craig's guilt to the jury and given petitioner's validation of defense counsel's strategy, it was not unreasonable for trial counsel to focus on attacking Mr. Hayes, not Clyse Craig.
Failure to Investigate the Mental Stability of Marcia Skidmore.
Petitioner also alleges that trial counsel was ineffective for failing to investigate the mental stability of Marcia Skidmore. Although trial counsel knew that Ms. Skidmore had been hospitalized in 1982 for mental problems and he explored this fact at trial, he failed to learn that she had also been hospitalized in 1985. State v. Packard, 784 P.2d 365, 1989 Kan. LEXIS 200, at *6 (Kan. 1996) (unpublished opinion). At trial, Ms. Skidmore testified that she had not been hospitalized for mental reasons since 1982. (Rec. Vol. 13, p. 116).
On direct appeal, petitioner argued the 1985 hospitalization was newly discovered evidence which entitled him to a new trial. Packard, 1989 Kan. LEXIS at *6. The trial court did find that defense counsel failed to exercise due diligence in investigating Ms. Skidmore's mental background. Id. at *8-*9. However, the Kansas Supreme Court found that because this evidence would not have made a difference on the verdict reached, a new trial was not warranted:
Expert testimony introduced at the hearing on the motion for a new trial indicated that Ms. Skidmore's condition was not static. Dr. Howard Brodsky, a psychologist, testified that a person with Ms. Skidmore's diagnosis can be an accurate factual reporter of events. There was evidence the stress of trial precipitated her breakdown after trial. There was no evidence that Ms. Skidmore was incompetent or impaired when she contacted the police in 1986, or when she testified at the preliminary hearing or trial. Her statements remained quite consistent and were corroborated by the State's key witness, Edgar Leon Hayes, who was with defendant during the abduction and killing of the victim. Another witness stated defendant had told her he had killed a Wichita woman. Other corroborative evidence was introduced.
Id. at *8. The standard for whether a new trial is granted is essentially the same as the second prong of the Strickland test: whether the outcome of the trial would have been different had the information been introduced. See Packard v. State, Case No. 96 C 1209, "Conclusions of Law", p. 27. Therefore, when the evidence was presented as the basis for an ineffective assistance of counsel claim, the § 60-1507 court refused to revisit the issue. Id.
Because the trial court found that trial counsel did not exercise due diligence in investigating Ms. Skidmore's mental health, this court will proceed to the prejudice prong of Strickland. This court agrees with the Kansas Supreme Court that evidence regarding Ms. Skidmore's 1985 hospitalization would not have affected the final verdict. Defense counsel was able to establish at trial that for two weeks in May of 1982, after Ms. Skidmore's separation from petitioner, she was hospitalized in a mental ward for hallucinations and delusions and that shortly after, she first contacted the police regarding petitioner's confession of the murder to her. (Rec. Vol. 13, pp. 98-106). However, Ms. Skidmore's testimony was corroborated by two other witnesses. It is unlikely that evidence of another hospitalization would have had such an impact that the outcome of the trial would have been different. Thus, petitioner's claim fails the prejudice prong of Strickland. 466 U.S. at 695.
Failure to hire an expert to challenge the state's testimony regarding the consistency between petitioner's knife and the wounds of the victim.
At trial, Dr. William Eckert testified that the knife wound of the victim measured between 2.5 and 3.0 centimeters. (Rec. Vol. 15, p. 75). He further testified that the dimensions of petitioner's hunting knife, which measured three centimeters in width, were "consistent with an instrument" which could have produced the victim's injuries. Id. at pp. 70-71. However, Dr. Eckert had told homicide investigators that the wound was made by a "thin knife rather than a thicker hunting knife." Packard v. State, Case No. 96 C 1209, "Findings of Fact", p. 3. Trial counsel's challenges to Dr. Eckert's testimony were summarized in closing argument as follows:
Let's go to the knife. This knife the state has attempted to prove that is the knife that committed that crime. . . . Dr. Eckert said it wasn't a hunting knife, it would be a thin-bladed knife. That's what he said. That's what he testified. Furthermore, he said back in 1975 that the wound would have been committed by a knife two centimeters wide, and he got in front of you and said three centimeters.
(Rec. Vol. 17, p. 46). Defense counsel did not hire a pathologist to challenge Dr. Eckert's testimony. At the § 60-1507 hearing, trial counsel explained why: "[a]t that time, I think, at least I thought Dr. Eckert was a well-renowned person. It was hard to find another pathologist. Times may have changed now." (Rec. Vol. 12, pp. 63-64.
In 1992, Dr. Eckert recanted his trial testimony in a letter to petitioner's pardon attorney and stated that "it would be my opinion that a knife of 3 centimeters was not used as a weapon. The knife would have to be at least 2 ½ centimeters or less." Packard v. State, Case No. 96 C 1209, petitioner's motion to vacate, Exh. 28 (Sedgwick Co. Dist. Ct. 1996).
At the § 60-1507 hearing, petitioner offered the testimony of Dr. Adam Merchant. Dr. Merchant testified that he had eliminated petitioner's hunting knife as the murder weapon. (Rec. Vol. 11, p. 36). Dr. Corrie May, Sedgwick County Coroner, also testified at the hearing. Dr. May testified that she could not exclude petitioner's knife as the murder weapon. (Rec. Vol. 12, p. 130).
The § 60-1507 court concluded the following:
Mr. O'Hara's cross-examination of Dr. Eckert was thorough and competent. Movant has failed to show that if he would have presented expert opinion testimony similar to that of Dr. Merchant's at trial the result of the trial would have been different. Mr. Hayes' testimony was extensively corroborated. At trial, Dr. Eckert did not testify that the State's Exhibit 25 [the knife] was the murder weapon. He testified that State's Exhibit 25 was consistent with the injuries sustained by the victim. Dr. Eckert's opinion was questioned by Mr. O'Hara. As evidenced by Dr. May's opinion, Dr. Merchant's opinion is not uncontested.
Packard v. State, Case No. 96 C 1209, "Findings of Fact", p. 24.
It was not unreasonable for the Kansas state courts to conclude that expert testimony would not have affected the outcome of the trial. Dr. Eckert only opined that petitioner's knife was consistent with the murder weapon, he did not establish that it was the murder weapon. In addition, even if Dr. Merchant had testified at trial for petitioner, the jury was still free to believe the opinion of Dr. Eckert. Thus, petitioner's claim fails the prejudice prong of Strickland. 466 U.S. at 695.
Because petitioner has failed to show that the state court's factual findings are incorrect or that the state court's decision was an unreasonable application of the Strickland standard, relief must be denied under ground one.
GROUND TWO — FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
Ground two alleges that the district attorney failed to disclose material and exculpatory information regarding the investigation of Clyse Craig. (Doc. 2). Petitioner further contends the omitted evidence would have created a reasonable doubt in the minds of the jurors. Id. Respondent contends that: the contention is conclusory, defense counsel was aware of the "pertinent facts" regarding the Craig investigation, and the information was not exculpatory or impeaching.
The Kansas Court of Appeals did not set out their analysis on this issue, but instead relied upon the district court's findings of facts and conclusions of law. Packard v. State, No. 81,150 (Kan.App. 2000) (unpublished opinion). The district court was unable to determine exactly what information Mr. O'Hara had in regard to the investigation of Clyse Craig. Packard v. State, Case No. 96 C 1209, "Findings of Fact", p. 12. Although the district court outlined the legal standards for determining whether the duty to disclose was violated, the district court did not explain how it applied this standard to petitioner's case.
If evidence material to the guilt of the accused is suppressed by the prosecution, due process has been violated. Brady v. Maryland, 373 U.S. 83, 87 (1963). When a Brady violation has occurred, the court must determine whether there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed. Kyles v. Whitley, 514 U.S. 419, 434 (1995). The materiality of undisclosed evidence cannot be established when there is only a "mere possibility" that the suppressed evidence may have affected the verdict. U.S. v. Agurs, 427 U.S. 97, 109-110 (1976). Instead of conducting a "series of independent materiality evaluations" on each piece of suppressed evidence, materiality should be determined by considering the combined force of the evidence. Kyles, 514 U.S. at 441.
The nondisclosure of information which is "`repetitious, cumulative, or embellishing of facts otherwise known to the defense'" or information which is "`preliminary, challenged, or speculative'" does not satisfy the materiality requirement of Brady. Agurs, 427 U.S. at 11, n. 16, quoting Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring). In addition, there is no constitutional requirement that there be a "complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795 (1972).
Petitioner has failed to identify for the court exactly what evidence regarding the Clyse Craig investigation was undisclosed. Although petitioner outlines for the court the evidence against Mr. Craig (Doc. 2, p. 51), it is clear that most of this evidence was disclosed to defense counsel. For instance, petitioner notes that Mr. Craig made inculpatory statements to Robert Lyle and that Mr. Craig was identified as the man who danced and argued with Ms. Marstellar on the night of the murder. Id. However, this and a wealth of other information regarding the Clyse Craig investigation was revealed to the defense. See Packard v. State, Case No. 96 C 1209, petitioner's motion to vacate, pp. 10-12. Although not outlined in petitioner's brief on this issue, the court has examined petitioner's earlier allegations in state court proceedings regarding the non-disclosures. The complained of omissions are either cumulative or non-material additions to facts which were disclosed to defense counsel. Relief should be denied as to ground two.
GROUND THREE — LEGAL CONCLUSIONS OF THE POST-CONVICTION MOTION COURT
Petitioner contends the district court reviewing his K.S.A. § 60-1507 motion violated his due process rights by holding that the evidence regarding the investigation of Clyse Craig was inadmissible under the Kansas alternate perpetrator rule.
Even if this court were to assume that the state court misapplied the alternate perpetrator rule to petitioner's claim of ineffective assistance of counsel, petitioner still fails to state a claim which is cognizable on habeas review because the error is one of state law. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (mistaken construction of a state statute is not cognizable on federal habeas review). In addition, the Constitution does not require that states provide a post-conviction review process. Pennsylvania v. Finley, 481 U.S. 551, 557. Petitioner also fails to state a cognizable claim because this ground for relief focuses only on the state post-conviction proceeding and not on the conviction which led to his incarceration. Sellers, 135 F.3d at 1339 (10th Cir. 1998). Therefore, petitioner is not entitled to relief on ground three.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
A copy of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.