Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding D.C. No. 3:00-CV-02118-
The opinion of the court was delivered by: Silverman, Circuit Judge:
August 25, 2010-Pasadena, California
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Reinhardt
It is undisputed that on December 18, 1985, appellant Richard Samayoa beat Nelia Silva to death with a wrench in the course of burglarizing her home. Samayoa also beat to death Nelia's two-year-old daughter, Katherine. The pathologist estimated that Nelia was struck in the head 24 times. The jury heard testimony that the faces of both mother and daughter were smashed in, their skulls crushed, and fragments of bone penetrated their brains. It is undisputed that Samayoa left Nelia and Katherine naked from the waist down - he said he did that to make the crime look like a rape - and then he stole jewelry from the Silva house that he gave away as gifts to members of his family. The mutilated bodies of both victims were found by Rolando Silva, Nelia's husband and Katherine's father. Photos of the decedents and of the bloody crime scene were introduced into evidence.
Nine years earlier, Samayoa had raped and sodomized a woman with multiple sclerosis, who begged him, "Please don't rape me. I'm a cripple." He was convicted of burglary and rape and sentenced to prison. Five years later, while staying overnight at a friend's home, Samayoa entered the bedroom of the friend's sister and smashed a flower pot in her face in an effort to rape her. She suffered a laceration of her face that penetrated to her cheek bone. He was convicted of assault with a deadly weapon and again sentenced to prison. Samayoa also had a prior conviction for another burglary. Altogether, he had been sentenced to prison three separate times.
At the trial of the double Silva murders, which Samayoa conceded he committed, defense counsel presented testimony from three psychologists and a written report from a fourth to the effect that Samayoa suffers from, among other diagnoses, an organic brain disorder that could explain his violence. In addition, at the penalty phase of the trial defense counsel presented evidence that Samayoa had been a compliant prisoner during his previous incarcerations, proving that he can be safely incarcerated. They also presented evidence from his mother and sisters to the effect that they loved him and hoped his life would be spared.
The jury returned a penalty phase verdict of death after about 80 minutes of deliberation.
Samayoa now claims that his two defense lawyers were ineffective at the penalty phase because they failed to discover and prove that when Samayoa was a child, his extended family physically fought with each other and abused drugs, as did he; that sexual abuse was prevalent in the family, and an uncle may have abused Samayoa at age eight or nine; that Samayoa's family was poor; that his father was a harsh disciplinarian; and that his mother was "emotionally distant."
On state habeas review, the California Supreme Court rejected the claim of ineffective assistance of counsel. It did so on the merits but without further explanation.
The question posed in the present federal habeas petition is whether the state court's decision rejecting the ineffective assistance of counsel claim is contrary to or an unreasonable application of United States Supreme Court law. The district court assumed (without definitively deciding) that Samayoa's trial lawyers fell below the standard of care in not presenting the evidence of Samayoa's childhood at the penalty phase of the trial. However, the district court held that the state court was not unreasonable in denying relief because Samayoa cannot show that he was prejudiced by any supposed failings of counsel. In other words, in light of the atrociousness of the two Silva murders, the heinousness of Samayoa's prior crimes, and the fact that counsel had already presented significant evidence of Samayoa's organic brain disorder to the jury during the guilt phase, the California state court was not unreasonable in deciding that there was no reasonable probability that the jury would have returned a different verdict had it heard the additional evidence about Samayoa's childhood.
We agree with the district court that the California Supreme Court's decision was not contrary to or an unreasonable application of Supreme Court law. The two murders themselves were uncommonly brutal, and the aggravating evidence horrific. If the evidence of an organic medical explanation for Samayoa's behavior, which the jury did hear, did not persuade it to impose a lesser sentence, it was not unreasonable for the state court to decide that the additional evidence probably would not have produced a different verdict. We affirm.
In the direct appeal, the California Supreme Court set forth the facts of the crime:
In December 1985 Nelia Silva resided with her husband, Ronaldo [sic], and their two-year-old daughter, Katherine, on Piedra Street in Southeast San Diego. Defendant lived across the street from the Silva family. On the morning of December 18, 1985, Ronaldo [sic] Silva walked his daughter across the street to a babysitter's home and left his daughter there. At approximately 6 p.m., Mrs. Silva returned from work and picked up her daughter from the babysitter.
Mr. Silva arrived home at approximately 7:30 p.m. that evening. He opened the garage door, observed his wife's car parked in the garage, and smelled smoke. He entered the kitchen through the interior garage door and found smoke spewing from the stove top where food was burning. After calling out for his wife and receiving no response, he looked down the hallway and saw the bodies of his wife and daughter lying on the floor in pools of blood. After touching his wife and daughter, he realized they were dead and ran outside seeking help. At 8 p.m., San Diego Police Department officers arrived at the Silva residence and entered through the garage. They discovered the bodies of a small child and a woman lying in the hallway. The child was nude from the waist down, with a large indentation in her head. The woman also was nude from the waist down, wearing only a shirt, and her face was smashed.
Outside the residence, Mr. Silva was comforted by Raul and Deana Samayoa, defendant's brother and sister. Raul and defendant lived across the street with their mother and other members of the Samayoa family.
Detective Richard Carey of the San Diego Police Department arrived at the scene at 9:35 p.m. Approaching the hallway from the kitchen, he observed large pools of blood in the area of the woman's body and the child's head, and blood spattered on the walls and in the three bedrooms off the hallway.
That evening a police department technician searched the area surrounding the Silva residence. He found a wrench and several pieces of jewelry on the ground near an area spattered with blood. He was unable to lift fingerprints from the wrench, the jewelry, or the interior of the residence. Missing from the house were a jewelry box and jewelry, and Mrs. Silva's purse.
Blood samples taken from the two victims and from defendant all were determined to be type A. Mr. Silva knew of defendant, but neither he, nor to his knowledge his wife, ever had spoken with him.
A forensic pathologist, Dr. Robert Bucklin, performed autopsies on both victims. Mrs. Silva's arms, hands, and fingers were covered with multiple bruises and abrasions. She had been struck with blunt force on the head and neck approximately 24 times. Multiple blunt lacerations covered both sides of her head and scalp. Dr. Bucklin testified that a blunt laceration is a crushing type of injury made with a heavy force without a sharp edge. Her jaw bones and teeth were fractured and the left cheek bone was crushed. The eyes were crushed around the orbital ridges on both sides. Upon removal of the scalp, the pathologist observed several skull fractures, one of which had caused a piece of bone to penetrate the brain, and another serious fracture along the skull base that was caused by extensive force.
The pathologist testified that Mrs. Silva would have died within several minutes following the infliction of her injuries. He further testified that the wrench (recovered from outside the residence) was consistent with and could have been the instrument that caused the injuries.
The autopsy of Katherine revealed three injuries, all blunt lacerations of the scalp. One injury on the right side was two inches long and penetrated the skull into the brain, producing hemorrhaging. The most severe injury fractured the skull base. The brain contusions caused hemorrhaging and edema. The wrench was consistent with, and could have been, the instrument that caused the injuries.
A criminalist with the district attorney's office developed a crime scene reconstruction, determining that Mrs. Silva had received many blows while she was lying on the floor. Katherine had been struck once while near the left leg of her mother and then moved along the hallway, smearing blood on the wall, where she was struck again.
Following the commission of the crimes, defendant gave various items of jewelry to family members. He gave his mother, Mercedes Samayoa, a hair comb, and gave his sister, Deana, a pearl necklace and a bracelet. Defendant's other sister, Inez Sykes, found a man's diamond gold ring sitting on her bathroom counter. Defendant told her that the ring belonged to him. Each of these items of jewelry later was identified as belonging to Mr. or Mrs. Silva.
In January 1986, following defendant's arrest for a violation of his parole in another criminal case, his mother and his sister alerted the police that defendant had given them items of jewelry. On January 20, 1986, Officers Art Beaudry and Ronald Jordan met with defendant's mother, brother, and sisters at the Samayoa residence and collected the jewelry. After the officers informed the Samayoas that a jewelry box also was missing, Raul Samayoa discovered it wrapped in a blanket under a shed in the Samayoa backyard. When shown the wrench that was discovered outside the Silva residence, Raul Samayoa told the officers that it appeared similar to the one he had kept in his tool shed.
People v. Samayoa, 938 P.2d 2, 13-16 (Cal. 1997).
On January 31, Samayoa confessed to the killings.
Defense counsel's strategy at the guilt phase of the trial (a strategy that is not challenged here) was to concede that Samayoa had killed the victims and to present for Samayoa a diminished capacity defense aimed at negating the allegations of the special circumstances*fn1 that would make the case a capital one if proven.
In his opening statement to the jury, defense counsel conceded defendant's guilt of two counts of first degree murder and one count of residential burglary. Counsel asserted that evidence of defendant's brain damage would be presented to establish that at the time of his commission of the crimes, defendant lacked the intent to kill his victims (which intent was, at the time of the commission of the crimes, an element of the burglary-murder special-circumstance allegation) (see People v. Anderson (1987) 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306). Thereafter, in support of this theory, the defense presented at the guilt phase the testimony of two psychologists, who testified that the results of neuropsychological tests administered to defendant indicated the presence of organic brain damage.
Dr. Meredith Friedman, a licensed clinical psychologist and chief psychologist at the Metropolitan Correctional Center, testified she had been retained by the defense to conduct preliminary neuropsychological testing of defendant. Dr. Friedman explained that the field of neuropsychology involves the relationship of cognitive and perceptual behavior to underlying brain dysfunction. In August 1986, Dr. Friedman conducted a battery of neuropsychological tests, including the Luria-Nebraska series, the Canter Background Interference Procedure, and the Bender-Gestalt visual motor test. (She acknowledged she had no formal training in the administration of the Luria-Nebraska tests.) She also analyzed the results of tests conducted one month earlier, applying the Wechsler Adult Intelligence Scale. Additionally, Dr. Friedman interviewed defendant regarding his history of head injuries, and defendant disclosed he had been rendered unconscious in a bicycle accident at 13 years of age, and again in 1972, when he was struck on the head by a billy club wielded by a police officer.
According to Dr. Friedman, the test results indicated global intellectual deterioration and brain damage associated with the left parietal, occipital, temporal, and frontal lobe areas of the brain, which would cause hypersensitivity, unmodulated reaction, and overreaction in novel or stressful situations. Such brain damage also would cause episodes of "rage reaction," resulting in an explosive lack of control, and panic in "fight or flight" situations. Dr. Friedman also testified that defendant demonstrated "viscosity," signifying that he obsessively pursued or repeated a single function or response-an action consistent with temporal lobe damage.
Dr. Saul Saddick, a licensed clinical psychologist, testified that he specialized in neuropsychological assessment, although he does not hold a board certification in neuropsychology. Dr. Saddick administered to defendant the Halsted-Reitman battery of tests and interviewed him regarding his history of head injuries. Dr. Saddick testified that the test results indicated brain damage to the frontal, temporal, and parietal lobes of the brain, which would cause poor impulse control, impairment of reasoning skills, low frustration tolerance, assaultive behavior, and a "short fuse" profile, consistent with frontal temporal damage. Defendant also demonstrated "viscosity" and "perseveration," signifying that once engaged in an activity such as aggressive behavior, he would have difficulty discontinuing his actions. Viscosity and perseveration were consistent with left temporal lobe damage. Defendant's confession to the police was indicative of viscosity, in that his state-ment was a monologue unresponsive to questions asked, and he spoke in repetitive circles. Persons with the type of brain damage suffered by defendant may experience episodes of "rage reactions," and according to Dr. Saddick it is difficult to determine whether a person locked into a rage reaction is aware of his conduct or, if aware, is ...