Aguilar offense. See, e.g., 15 RT 12-13, 113; 16 RT 12-13; 20 RT 36; 20 RT 102; 21 RT 5-7. Defense experts Blum, Holtz and Thompson also testified about the harmful effects of alcohol on people with brain damage like Odle's. See 20 RT 56; 21 RT 46-47, 158; see also 22 RT 66 (on cross-examination, even prosecution expert Berg agreed that people with brain injury should limit alcohol use). After reviewing the record, this court concludes that Odle cannot show prejudice from Gagen's failure to present additional evidence of intoxication or drug use.
This court also finds unpersuasive Odle's claim that Gagen was ineffective for failing to order and present independent tests showing Odle's drug and alcohol levels at the time of the offenses.
Odle has not alleged what such tests might have found or argued how they would have affected the outcome, given the other evidence of his drug and alcohol use presented at trial. See Hendricks, 70 F.3d at 1042. This court thus concludes that Odle has not shown prejudice from Gagen's allegedly deficient performance.
Odle next argues that Gagen was ineffective for presenting the testimony of Drs. Blum and Thompson, who had supervised Odle's post-accident medical and psychiatric care.
He contends that their testimony was biased because the doctors had an interest in portraying their treatment of Odle as adequate.
Gagen's decision to present the testimony of these doctors was clearly reasonable. Dr. Blum, in particular, testified persuasively about Odle's post-accident mental impairment. 20 RT 27-56. Further, Odle has not met his burden of showing prejudice from the doctors' testimony.
Odle contends that Gagen failed to impeach Bryan Odle, his accomplice in the Aguilar offense. As discussed below, Bryan testified extensively about his plea agreement, and Gagen cross-examined him in detail. 15 RT 136-201; 16 RT 1-43. Odle does not support his claim with any specific examples of inadequacy in, or prejudice from, counsel's performance. This court therefore rejects this aspect of his ineffective-assistance claim.
Odle argues that Gagen was ineffective for failing to object to or strike the admission of certain evidence. This evidence includes: a polygraph examination of Terry Whitworth, who had fought with murder victim Aguilar on the evening of her death; Aguilar's and others' fear of Odle; Bryan's lack of convictions; a pathologist's opinion on ballistics; testimony about Odle's incriminating statement to inmate and alleged police agent Scudder; and a sheriff's testimony about Odle's statement that he deserved the death penalty. These were evidentiary issues, and objections may not have been sustained. After reviewing the record, this court concludes that Odle cannot show any prejudice from these alleged failures to object, even if erroneous.
Odle contends that Gagen should have objected to various instances of prosecutorial misconduct. This court rejects the substance of these allegations of prosecutorial misconduct below (Claim VV), and in its prior order; see Odle, 884 F. Supp. at 1431-32 (Claims WW and XX). For the reasons discussed there, the court concludes that Odle was not prejudiced by Gagen's failure to object to the conduct of the prosecution.
Odle argues next that Gagen was ineffective for failing adequately to investigate, question and strike a juror who disclosed to the court that she was acquainted with a prosecution witness. The related substantive claim of juror misconduct and the relevant facts are discussed below (Claim HH). Gagen conducted a reasonable voir dire of the juror in this situation. See 13 RT 2-3. Nothing in the juror's responses would have caused a reasonable attorney to doubt that she could be an unbiased juror. Furthermore, Odle has not shown or even alleged prejudice; he offers no evidence that she was, in fact, biased for the prosecution or against Odle.
Odle also contends that Gagen unreasonably stipulated or conceded that: 1) the police had probable cause to arrest him; 2) Swartz was acting in duty as an officer at the time of his death; and 3) there was no reasonable doubt that Odle's bullet, and not the bullet from another officer, killed Swartz. Odle has offered no evidence that casts doubt on the prosecutor's ability to show that the police had probable cause to arrest him or that Swartz was acting in his duty as a police officer when he was shot. He thus has not established prejudice.
Odle's argument that Gagen should not have conceded that Odle's bullet killed Swartz carries more weight. As Gagen initially argued, there are serious questions about the origin of the bullet, which was never found. 19 RT 47, 66-67, 123. Based on the testimony of prosecution witnesses, Gagen suggested that the bullet could have ricocheted and that it might not have come from Odle's weapon. 23 RT 54. He then told the jury, however, "There is no other reasonable explanation but that the projectile that went through Officer Swartz came from the weapon of Jim Odle." 23 RT 54-55.
Because the evidence could have supported a contrary argument, Gagen's concession, standing alone, might have been unreasonable. On the other hand, it appears from the record that Gagen used the concession not only to gain credibility with the jury but also to make an argument that was stronger and more consistent with his overall strategy. Specifically, he used the shooting testimony to argue that Odle shot without premeditation. 23 RT 55-66.
Where it appears that counsel's alleged error was the result of a "difficult but thoughtful tactical decision, [this court] must presume that counsel's conduct was within the range of competency." Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir. 1988). It is clear from the record here that Gagen recognized that the evidence was inconclusive but deliberately chose to concede that the fatal bullet came from Odle's gun. This strategic decision was not clearly unreasonable under the circumstances. Gagen's conduct thus was not constitutionally deficient.
Odle also argues that Gagen was ineffective because he did not request instructions on involuntary manslaughter and the use of predisposition evidence. This court held in a previous order that the failure to give a predisposition instruction in this case did not violate due process. See Odle, 884 F. Supp. at 1415-16. For the reasons discussed therein, Gagen's failure to seek this instruction did not prejudice Odle.
Odle's argument about the involuntary manslaughter instruction is unpersuasive for different reasons. Gagen explained to the trial court why he was not requesting instructions on involuntary manslaughter and involuntary manslaughter due to diminished capacity. He said,
Your Honor, I think I should say for purposes of the record that after carefully considering the state of the evidence, I think the numbered instructions that I am asking not be given with reference to involuntary manslaughter and heat of passion would do nothing but confuse the jury and would have absolutely no advantage to the defendant whatsoever, and it is with that in mind that I have so requested to the Court that they not be given.
22 RT 136-37 (emphasis added).
It is clear from the record that Gagen made a strategic decision not to ask for the instructions. His explanation to the trial court suggests that Gagen recognized that the evidence would have supported an involuntary manslaughter instruction. It thus appears that he made a tactical choice based on a proper understanding of the law and the facts. Cf. Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir. 1994) (record contains no evidence from which district court can infer that trial counsel made informed, tactical decision). Such choices are "virtually unchallengeable." Strickland, 466 U.S. at 690. Odle has not offered this court any reason to doubt that Gagen made a reasonable tactical decision under the circumstances.
Odle's final contention of ineffective assistance of counsel at the guilt trial concerns Gagen's advice to Odle not to testify. Gagen initially told the trial court that he wanted Odle to testify about only one of the two murders. He stated that he could not think of a way to allow Odle to testify about the Swartz offense but shield him from cross-examination about the Aguilar offense. Thus, Gagen ultimately advised Odle not to testify at all.
Odle does not allege prejudice from Gagen's failure to pursue tactics that would have allowed him to testify about only one of the murders. He presents no declarations or evidence about what he would have said had he testified. Odle does not point to any issues on which his testimony would have been helpful. Odle thus has not met his burden with respect to prejudice. See Hendricks, 70 F.3d at 1042 (petitioner cannot show prejudice without indicating what favorable evidence would have been presented).
3. Penalty trial
In its 1990 order and above, this court has addressed Odle's primary allegation of ineffective assistance of counsel at the penalty trial. See supra at 3-5; Odle, 754 F. Supp. at 772-74. It discusses next his remaining penalty-trial ineffective-assistance claims.
Odle argues that Gagen was ineffective because he did not adequately investigate or move to suppress Odle's prior convictions that were offered in aggravation at the penalty trial. Odle says that the convictions were subject to suppression because he was not competent to plead guilty at the time.
This court has rejected Odle's substantive claims of incompetency (Claims K and L, above). As discussed above, neither the trial court, nor counsel, nor anyone involved in the earlier proceedings against Odle questioned his competency. In these circumstances, it is not reasonably likely that the trial court would have suppressed the priors based on Odle's incompetency to plead guilty. This court thus concludes that Odle has not shown prejudice from Gagen's failure to challenge the prior convictions.
Odle also argues that Gagen prejudicially failed to object to penalty-trial evidence of his misdemeanor conviction for battery. He contends that the conviction was irrelevant and discouraged the jury from determining for itself whether he had committed the offense. Even if Gagen's conduct was deficient, as alleged, Odle cannot show prejudice. On direct examination, the victim in the offense, Noble Flournoy, admitted that he was trying to "beat up on" Odle at the time. 27 RT 33. On cross-examination, Gagen elicited testimony that Flournoy had hit Odle on the head more than once with a pipe before Odle shot him in the buttocks. Flournoy also testified that he was accompanied by friends when he attacked Odle, who was alone, and that his injury was minor. 27 RT 35, 37. In light of this minimizing testimony from the victim and the other penalty-trial evidence before the jury, there is not a reasonable probability that the admission of Odle's misdemeanor guilty plea would have affected the outcome.
Finally, Odle claims that Gagen was ineffective for failing to seek a mistrial or prompt the court to correct various instances of alleged judicial and prosecutorial misconduct and juror bias. This court has addressed, in this and its prior orders, all these substantive claims of error. Because none of the substantive claims have merit, it is not reasonably probable that any steps Gagen could have taken to remedy these alleged errors would have affected Odle's sentence.
Considered individually or cumulatively, these alleged errors in Gagen's representation did not prejudice Odle. Cf. Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (finding cumulative prejudice from the "plethora and gravity of [trial counsel's] deficiencies").
Odle argues five claims that his jury was biased.
Odle first claims that the jury was biased because it included a juror who was acquainted with Officer Donohue, a prosecution witness. He argues that he is entitled to a new trial because the juror lied on voir dire and because counsel would have had a reason to challenge her for cause had she been honest. Respondent answers that the juror said she would not be biased against Odle and that trial counsel did not ask to have her removed from the jury. He also argues that this court must presume correct the trial court's implied finding that the juror was not biased.
The relevant facts are undisputed. The trial court asked the entire venire whether any of them knew any of the dozens of potential witnesses, including "Officer D. Donohue, Pinole Police Department." 2 RT 25. The juror at issue did not respond at the time.
Just before the trial started, however, she sent a note to the trial court stating that Officer Donohue worked with her husband. The trial court and counsel questioned her in chambers. In the note and in response to questions from Gagen, the juror said that she knew Donohue only by sight and had heard nothing positive or negative about him from her husband. She also stated that her impartiality would not be affected. 13 RT 1-3.
To prevail on a claim of juror partiality, Odle
must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.