FINDINGS AND RECOMMENDATIONS
Petitioner, Bernard MacCarlie, represented by counsel, is proceeding upon his second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his convictions for conspiracy to commit first degree murder, mayhem, assault with a deadly weapon, and two counts of kidnaping. The jury hung as to a charge of murder and acquitted MacCarlie of robbery. On January 20, 1995, MacCarlie was sentenced to an indeterminate term of 26 years to life, plus a consecutive term of 13 years.
MacCarlie's second amended petition raises six claims as follow, verbatim:
A. The court's instruction regarding the need for the jury to find an intent to kill to convict on the conspiracy charge deprived MacCarlie of due process and his sixth amendment right to jury trial.
B. MacCarlie's conviction for conspiracy to commit murder violated due process and the prohibition on ex post facto laws because he was retroactively deprived of instructions on the lesser included offenses of conspiracy to commit second degree murder or manslaughter--and thus of those defenses to conspiracy to commit first degree murder--by a California Supreme Court decision which postdated the offense and which held conspiracy to commit second degree murder or manslaughter does not exist.
C. MacCarlie received ineffective assistance of counsel in violation of the sixth amendment when counsel failed to request that the trial court give instructions on conspiracy to commit second degree murder and manslaughter.
D. MacCarlie's conviction for conspiracy to commit murder violates due process and the prohibition on ex post facto laws because the state court of appeal used Cortez as a basis to reject MacCarlie's contention on appeal that the trial court erred in refusing to instruct the jury on "heat of passion."
E. MacCarlie has been deprived of federal constitutional due process, his right to trial by jury, and his right to proof beyond a reasonable doubt, because he was not afforded his state law entitlement to juror unanimity on the conspiracy count.
F. MacCarlie's right to due process under the fifth and fourteenth amendments to the federal constitution was violated by cumulative error and prejudice.
Upon careful consideration of the record and the applicable law, the undersigned will recommend this petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
MacCarlie was tried jointly with Robert Bond and Leafe Dodds, in the second of three trials involving nine individuals entangled in a ghastly parody of rural neighborliness in a sparsely populated area. Nine individuals were charged in the bludgeoning and hacking death of Gary "Hop" Summar, who had lived among them.
The events resulting in the murder occurred during late September and early October of 1991. One would surmise that the tale would be short, but its telling consumed thirteen pages of the opinion of the California Court of Appeal for the First Appellate District in the consolidated appeals from two of the three trials, including MacCarlie's. In this habeas corpus proceeding, MacCarlie's counsel expended some seven pages in a shortened version, omitting the more sordid details of the lives of the folks of Hawkins Bar. The respondent state, having none of that, related the entire story in forty nine pages of sad particulars. This Report will summarize the essential information necessary to understand the facts, then present the claims, the facts actually heard by MacCarlie's jury, followed by the applicable law and recommended resolution.
By "essential information necessary to understand the facts," is meant general information not otherwise collected in one place in the voluminous files of the five related cases pending in this Court, which does not appear to be contested by the parties, and will inform the testimony presented by inarticulate witnesses heard by MacCarlie's jury.
The circumstances surrounding the death of Hop Summar took place in and around tiny Hawkins Bar. The events related by the witnesses are extremely difficult to follow without an understanding of the area. Indeed, both juries involved in the Bond/MacCarlie/Dodds trial (Bond had a separate jury from MacCarlie and Dodds) were taken to Hawkins Bar to view the scene.
In view of the personal detail related in the course of these cases, one recalls C.H. Spurgeon's description of a village as "a hive of glass, where nothing unobserved can pass." The little hamlet sits on State Highway 299. There are several small communities along the Highway as it runs through Trinity National Forest. One of the communities is Willow Creek, about ten to fifteen miles west of Hawkins Bar. Next, is Salyer, some five miles west of Hawkins Bar, and the next is Hawkins Bar itself, at the site of the gravel river crossing (bar) for which it is named. It includes a general store with a delicatessen and BP gas pumps, and Simon Legree's Bar, located just across the highway from the store. At the time of the events of this case, the Ironsides Trailer Park was next to the general store. About a mile east of Hawkins Bar is Gray's Flat.
There is a United States Forest Service (USFS) Hawkins Bar Campground (Campground) on the Trinity River, below the Highway, accessed by a steep USFS access road leading from the Highway down to the Campground. Just east of Hawkins Bar is the turnoff for Waterman Ridge, a logging artery, with smaller roads and spurs along its length. Hop Summar's body was found at the end of one of the spurs.
Although some of the residents of Hawkins Bar had reasonably stable employment, many of them, including at least most of the persons important to this case, spent a great deal if not all of their time and money on drugs, alcohol and carousing, usually at the Campground.
Gary "Hop" Summar, the victim, was physically frail and disabled. His nickname "Hop" derived from his severe limp, the result of multiple childhood surgeries to his back, hip, ankle and foot. For a while he lived with petitioner Bernard "Bird" MacCarlie, in MacCarlie's trailer, at the Ironsides Trailer Park, paying him rent. Then MacCarlie's girlfriend, Barbara Adcock, and her three children, Randy, Ryan, and Rachelle moved in, making the trailer very crowded. This was at least partially due to Hop's serious failures of personal hygiene. Hop lived on a monthly Supplemental Security Check deposited in his bank account on the first of each month, and which was usually consumed within a day or two, on alcohol for himself and friends.
Robert "Red Beard" Bond, his wife Cindy, and their young daughter Crystal lived at the Campground while looking for permanent housing.
Leafe Dodds and his then girlfriend Michelle were camped beneath a large walnut tree, some five to six hundred feet from the Campground. They were to be (and it is believed later were) married at the local Harvest Moon Festival on October 5, 1991. Leafe Dodds was tried jointly with MacCarlie and Bond, in the second of the three related state trials. Dodds was acquitted of all charges.
Robert Fenenbock lived in the vicinity of Hawkins Bar, and considered the Campground his neighborhood. He was tried with Sue Hamby and Cherri Frazier in the first state trial. Fenenbock was convicted of the First Degree Murder of Hop Summar, but was acquitted of conspiracy to commit murder.
Sue Hamby lived in a dilapidated trailer she called "Hole in the Wall," in Gray's Flat, roughly a mile east of Hawkins Bar. She was romantically involved with Tex Lockley in the past. Hamby was tried in the first state trial and convicted of conspiracy to murder Hop Summar, but was acquitted of murder.
Cherri Frazier arrived in Hawkins Bar about a week before the Harvest Festival, to attend the wedding of Leafe Dodds and Michelle. She camped under the same Walnut tree as Leafe Dodds and Michelle. Frazier was tried in the first state trial and was convicted of conspiracy to murder Hop Summar, but was acquitted of murder.
Barbara Adcock is described in Hop's synopsis, supra. She owned a white Ranchero, which had a significant part in the events of this case. She was tried in the third state trial, with Anthony "Tex" Lockley. She was convicted of conspiracy to commit murder, first degree murder with special circumstances, and robbery. Her murder conviction was reversed on appeal.
Anthony "Tex" Lockley lived in a remote cabin, about forty-five minutes from Hawkins Bar, and drove a red flatbed truck. He was tried with Barbara Adcock in the third state trial. He was found guilty of conspiracy to commit murder.
Earnest "Tatoo Earnie" Knapp, his wife Trena Vader Knapp, and their child lived at the Campground. All charges against Earnest Knapp were dismissed before trial.
Steven Thayer camped with Robert "Bert" Jones some one hundred yards from the Campground, closer to the river, upstream from the others at the Campground. Thayer arrived only a few days before the murder.
Robert "Bert" Jones had been camped at the site of these events for approximately five weeks. Michael "Scarecrow" Roanhouse lived in a second trailer on Sue Hamby's property. David Stegner was the boyfriend of Cherri Frazier and had previously been involved with Sue Hamby. He drove a truck which he wrecked the night of the murder.
Michael "Black Mike" Sutton was traveling to the east coast with Gregory "Vito" Bullard and Cindy "Rotten Cindy" Arends, in Arends's van. The three arrived just days before these events. Sutton had outstanding criminal charges in New York and Texas.
Gregory "Vito" Bullard is described in Michael Sutton's synopsis, supra. Bullard and Sutton claimed, falsely, that they were father and son. "Wino Brother" Randy was with a group known as "the Wino Brothers" who were from Eureka. The "Wino Brothers" did not intend to stay in the Hawkins Bar area and generally only interacted with the rest of these individuals when invited to do so.
Carl Hanks was the cashier at the BP Mini Mart on the evening of October 2, 1991. Patsy Brown and her three children lived with Sid Smith (who called himself "King of the Mountain," at his residence a little over two miles up the road to Denny. Robert Fenenbock lived on the same property, but at a different residence, called Foggy Bottom.
Randy Hogrefe, the oldest child of Barbara Adcock (age nine at the time of the murder), was a main witness for the prosecution. There was substantial litigation at the state level about his competence as a witness, upon grounds which included that he had at first claimed not to have seen anything relevant, but described very significant facts after he was told by a Sheriff's Investigator to pretend that he had seen what happened and then describe it. Harry Darr lived in Cedar Flat. Sid Smith is described in Patsy Brown's synopsis, supra.
A careful effort is made in this report to limit the facts to material either not contested by the parties or actually presented to MacCarlie's jury. In view of the confusion of multiple seemingly benighted witnesses with disjointed stories, and the technical nature of the claims of this petition, it is essential to focus on what MacCarlie's own jury heard, rather than the full Ballad of Hawkins Bar.*fn1 To that end, rather than adopt the statement of facts given by the California Court of Appeal, which dealt with the facts related to the appeals of multiple defendants in two of the three state cases, the transcripts have been painstakingly panned to find the nuggets pertaining to MacCarlie, heard by his separate jury, untainted by the extraneous words and deeds of his fellow citizens of Hawkins Bar.*fn2 The sequence of events related here is perforce disjointed and not without gaps, because different witnesses testified at the three trials, and some told different stories at various times.
When Barbara Adcock and her three children moved into Bernard "Bird" MacCarlie's trailer, where he and Hop Summar lived, Adcock was quickly dissatisfied with Hop's presence. Soon, she began spreading the story that Hop had sodomized her youngest child, Rachelle, who was five years old. Although Rachelle was examined by experts, both by interview and physical examination, no credible evidence of molestation was ever developed.
Adcock, nevertheless, began to tell seemingly everyone she encountered that Hop had molested her daughter and that something should be done about it. It became a common topic of conversation, and talk of vigilante action spread in the community.
The time-line of events immediately leading up to the death of Hop Summar is difficult to reconstruct, because the denizens of Hawkins Bar were not wont to wear watches, and were habitually intoxicated. A rough sequence is here attempted, using the testimony presented to MacCarlie's jury.
Robert Jones testified that at the main campsite at the Campground that evening, he was at a get-together with Bernard MacCarlie, Barbara Adcock, Robert Bond, Leafe and Michelle Dodds, Cherri Frazier, Sue Hamby, Steven Thayer, Michael Sutton, Gregory Bullard, Cindy Arends, and others.
Hop Summar's name came up and Frazier said that "the motherfucker should be killed." Adcock "was pretty much saying exactly the same thing." Jones did not recall exactly what Bond said, but it was "something like something ought to be done." Jones opined that Hop "had not done it." Jones had stated his disbelief in Hop's guilt on several prior occasions. After Jones expressed this opinion at the get-together, the attitude toward him changed. People did not want to talk to him and they gave him "looks." These people included Frazier, MacCarlie, Adcock, Bond, Leafe and Michelle Dodds, and Hamby.
Later, Sutton heard Bond, MacCarlie, and Adcock talking about, "Doing him, doing him tonight, take care of that sucker, etc...". Sutton also had a conversation with Frazier, Adcock, and Hamby, in which Frazier said that Sutton looked like he could take care of himself, and that the women would be much appreciative if he would help them kill Hop. Hamby then asked Adcock, "What do you want me to do with him?" Sutton walked over to Arends and Bullard and told them about the conversation. Bullard told Sutton to stay close and not get involved. Later that evening, Hamby apologized for the earlier conversation, and told Sutton to just not get involved.
Later that same evening Hop entered Simone Legree's Bar, "a little distraught, mad, and it seemed like he had been drinking a little." Hop said that Harry Darr had just tried to get Hop into Darr's pickup truck and had struck Hop, possibly with a pistol. Hop was bleeding from a roughly half inch "deep gash" on the side of his face. One of the bar's patrons cleaned up the cut and used a Band-Aid to cover it. Some time later Michael Roanhouse and Hamby encountered Hop at Simon Legree's. Hop was obviously intoxicated. He left with Hamby and Roanhouse and spent the night in Hamby's trailer.
Steven Thayer testified that on the morning of October second, he woke up, "rolled [his] camp up, and told Jones he was leaving. Jones decided to go with him, and the two walked toward the highway. The two men came across Frazier, who invited them to have a beer with her. The three, along with Leafe and Michelle Dodds, drank beer. David Stegner might have been there as well. During that period, Frazier and Michelle Dodds said they believed that Hop had molested Adcock's daughter and needed "his ass kicked." Thayer and Jones expressed their belief that Hop was not guilty. The group drank beer for two and a half to three hours, during which Thayer probably drank twenty to twenty-five cans of beer. The group then moved back to Jones' campsite, where Thayer blacked out.
When Thayer came to, he was on his feet, walking through Bond's campsite. Soon thereafter, Thayer saw MacCarlie, who told him it would be a good idea if he collected his gear and got the hell out of the camp area, specifically Hawkins Bar. Adcock may have said the same thing. Thayer testified that he believed he was told to leave because he had expressed his opinion that Hop had not molested Adcock's daughter.
Thayer and Jones packed their belongings and headed out of camp. On their way, the two were stopped by a car, and MacCarlie and Knapp jumped out. MacCarlie accused Jones of striking one of the women, and told Thayer and Jones that he was taking them back to the main campsite. Thayer agreed to go after he saw that MacCarlie had a knife. Upon reaching the campsite, the four men got out of the vehicle. Thayer believed he was pushed to the ground by MacCarlie, who also shoved Jones. After getting to his feet, Thayer left.
Jones' testimony concerning these events was similar to Thayer's. Jones said that when he awoke on October second, he also decided to leave Hawkins Bar. While walking around saying goodbye to people, he ran into Michelle Dodds, who told him it was her birthday and who insisted that he drink beer with her. Jones, Michelle Dodds, Frazier, [Wino Brother] Randy and Thayer drank beer for "a couple of hours." Jones personally drank a 12-pack of beer and a half jug of wine and the group as a whole consumed three cases of beer and three or four jugs of wine. When no alcohol remained, the group went back to Jones' camp, where they cooked hamburgers and eggs. Jones then took a nap.
Two to three hours later Jones was awakened by Thayer, who told him that they had just been told to get out of camp. Jones walked back to where the group had been drinking to find out why. There he encountered Michelle Dodds who yelled, "Get the fuck out of here," and threw a rock at him. On cross-examination Jones acknowledged that Michelle Dodds might have thrown the rock at him because he was accused of stealing food. On redirect, Jones agreed that it would be truthful to characterize his dispute with Michelle Dodds as involving the fact that Jones disagreed with the group's belief that Hop had committed molestation; the group's belief that Jones had called Adcock a liar; an accusation that Jones had stolen food; and an accusation that Jones had assaulted Michelle Dodds.
Jones headed for the main campsite, but Michelle Dodds ran through a shortcut, arriving before Jones and screaming help me. Adcock and Frazier joined Michelle Dodds, and confronted Jones. Frazier pushed Jones and yelled "Get the fuck out of here." Adcock threatened Jones with a baseball bat. Jones turned back toward his own camp.
Sutton's testimony about these events was somewhat different, as he testified that Jones was beaten with a stick by Michelle Dodds. Arends, Hamby, Frazier and Adcock were present and armed. Adcock had a baseball bat, Arends an axe, and Hamby a .25 caliber pistol. Sutton believed that Jones was beaten because on the previous day he had commented to certain people that he did not believe that Hop was either capable of, or had done what he was being accused of. After about ten minutes, Jones left the area.
While walking to his own campsite, Jones encountered Thayer. Soon after that, MacCarlie, with Ernie Knapp in the passenger seat, drove a white Ranchero towards Jones and Thayer, nearly running into Jones. MacCarlie jumped out and attempted to stab Jones a few times. Jones blocked all but one of MacCarlie's stab attempts. MacCarlie ordered everybody into the back of the Ranchero, and proceeded to the main campsite.
Arriving at the campsite, Jones saw Bond, Leafe and Michelle Dodds, Adcock, Bullard, Arends, and Frazier. The group shouted vulgarities, and MacCarlie asked Jones if he knew what kind of frame of mind MacCarlie was in. Jones responded that it looked like MacCarlie wanted to kill somebody.
Jones saw that Thayer had been pushed down, and then had gone up the hill. Jones said that it was MacCarlie that pushed Thayer, and that as Thayer was going up the hill, Bond "kicked him in the ass." That was the last Jones saw of Bond.
MacCarlie then bent Jones over the tailgate of the Ranchero and put a knife to his ear, saying "Ill cut your fucking ear off." Jones heard shouting from several people, including Frazier, Adcock, and Bond. Jones then felt the knife blade cut into his neck. Jones grabbed MacCarlie's hand, which was holding the knife and made a little slice in his own neck. Jones was then able to stand up and MacCarlie put the knife away. At some point during the scuffle with MacCarlie, Jones heard someone yell "Hop is in camp."
Around the same time the Jones/Thayer events were occurring at the Campground, Roanhouse was walking to the Hawkins Bar Store, where he encountered Tex Lockley. The two men drove towards the Campground in Lockley's red flatbed truck. At about 6 p.m. they encountered Hop, who jumped in the back of the truck. The three men proceeded to the Campground.
When Roanhouse, Lockley and Hop arrived at the main campsite, the people present began "hollering 'Get him out of here.'" In response to the shouts, Lockley backed his truck up and returned to a level spot at the top of the hill. There the three men encountered Bond and Fenenbock, who both punched Hop in the head. According to the prosecution, Roanhouse told Sargent Kartchner that the men accused Hop of being a child molester, to which he replied "I'm not guilty, I'm not guilty." Roanhouse testified however that he could not recall making that statement.
Thayer, who was now making his way out of the Campground, came across Roanhouse and Hop in the pickup truck at the top of the hill. Thayer testified that there was a third person seated in the truck, but he did not see who it was. Roanhouse meanwhile got a can of beer and some tobacco from Lockley, and began walking down the road toward the main campsite at the Campground.
Again, Sutton's testimony was somewhat different, as he testified that he saw MacCarlie drive the Ranchero out of the main campsite up towards the top of the hill with Bond in the passenger seat. Sutton "couldn't be certain" but believed Adcock's youngest child, Randy Hogrefe, was in the back of the vehicle. Roanhouse testified that while he was walking down towards the campsite he was passed by MacCarlie, who was driving the Ranchero up towards the top of the hill.
When the Ranchero arrived at the top of the hill, Thayer's belongings were in the back. Thayer removed his belongings and did not see anyone in the back of the vehicle. Thayer overheard Hop Summar say:
Hey, man, I didn't do it, you know. You know, what are you going to do? Kill me and throw me in the bushes?
MacCarlie responded, "Something like that, yeah." Harry Darr may have been present at that time, and may have told Thayer it would be a good idea for Thayer to leave.
Thayer left the Campground and began hitchhiking on Highway 299. After ten to fifteen minutes of hitchhiking, he saw the Ranchero come off the dirt road that leads to the Campground, turn onto the highway, and travel in the same direction that he was hitchhiking. Bond was driving the Ranchero, with MacCarlie in the passenger seat and with Hop Summar sitting between them. ...