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In re Welch

Supreme Court of California

June 22, 2015

In re DAVID ESCO WELCH on Habeas Corpus

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[Copyrighted Material Omitted]

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Wesley A. Van Winkle, Stephanie Ross and Karen Kelly, under appointments by the Supreme Court, for Petitioner.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald S. Matthias and Gerald A. Engler, Assistant Attorneys General, Bruce Ortega, Glenn R. Pruden and Catherine A. Rivlin, Deputy Attorneys General, for Respondent.

Opinion by Liu, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Cué llar, and Kruger, JJ., concurring.



[189 Cal.Rptr.3d 181] [351 P.3d 308] David Esco Welch filed an original habeas corpus petition in this court claiming he should be granted relief from his multiple-murder convictions and death sentence. We issued an order to show cause with respect to two of Welch's claims: (1) that prejudicial juror misconduct occurred when jurors were exposed to improper communications by the bailiff or bailiffs, and (2) that trial counsel rendered ineffective assistance by failing to investigate and introduce evidence that Welch suffered from serious child abuse.

After an evidentiary hearing, the referee concluded (1) that there was no credible evidence of improper communications from the bailiffs to the jury and (2) that trial counsel performed deficiently at the penalty phase of Welch's trial by failing to investigate and introduce testimony from family members that Welch suffered from serious child abuse.

[189 Cal.Rptr.3d 182] As to the first issue, we agree with the referee's conclusion that there was no credible evidence of juror misconduct. As to the second issue, we conclude that in light of the strong aggravating evidence against Welch, as well as the mitigating evidence introduced at trial, the additional mitigating evidence that trial counsel could have introduced would not have bolstered Welch's mental illness defense to such an extent as to undermine confidence in the penalty verdict. Nor would it have likely resulted in a successful

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alternative defense based on sympathy for Welch as the victim of child abuse. We therefore hold that Welch is not entitled to relief.

I. Procedural Background

In June 1989, a jury found Welch guilty of six counts of first degree murder in a single incident occurring on December 8, 1986. It also found him guilty of two counts of attempted murder in connection with the same incident and one count of concealing a firearm as a felon. The jury found true a multiple-murder special-circumstance allegation. (Pen. Code, § 190.2, subd. (a)(3).) At the penalty phase, the jury returned a death verdict, and the trial court sentenced him to death. We affirmed this judgment in 1999. ( People v. Welch (1999) 20 Cal.4th 701 [85 Cal.Rptr.2d 203, 976 P.2d 754] ( Welch ).)

Welch filed his first habeas corpus petition in June 2002. In claim 6 of the petition, he alleged juror misconduct. He produced juror declarations alleging, among other things, that the bailiffs improperly communicated to the jurors that Welch or his confederates were threatening witnesses at trial. His petition also alleged, in claim 18, ineffective assistance of counsel at the penalty phase for failure to introduce mitigating evidence that Welch suffered physical abuse and deprivation as a child. This claim was supported by a declaration from his maternal aunt, Sarah Perine. Perine declared that Welch's father was unable and unwilling to provide for his family and as a result Welch often went hungry. According to Perine, Welch's father, also named David, was a violent alcoholic who abused Welch's mother and beat her frequently, including when she was pregnant with Welch. Welch's father also frequently beat Welch " with belts, extension cords, or anything he got his hands [351 P.3d 309] on." Perine further stated that no one had ever contacted her about Welch's case until June 2002 and that she would have been available to testify at trial had she been contacted.

In November 2005, we issued to the Director of the Department of Corrections (now Director of the Department of Corrections and Rehabilitation) an order to show cause why we should not grant Welch relief on grounds of jury misconduct and ineffective assistance of counsel as alleged in claims 6 and 18 of his habeas corpus petition. After the Attorney General's return and Welch's reply, we ordered a reference hearing in May 2007. In that order, we granted Welch's request that the hearing be held in Contra Costa County, rather than in Alameda County where the crimes occurred. The order directed the referee to address three sets of questions:

1. During Welch's trial, did the bailiff engage in improper communications with any of the jurors that exposed them to information prejudicial to Welch? If so, what were those communications?

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2. Did trial counsel adequately investigate potential evidence in mitigation during the penalty phase that Welch had been the victim of serious child abuse? If trial counsel's investigation was inadequate, what additional information would an adequate investigation have disclosed?

[189 Cal.Rptr.3d 183] 3. If an adequate investigation would have yielded evidence that Welch suffered serious child abuse, would a reasonably competent attorney have introduced such evidence at the penalty phase of the trial? What rebuttal evidence reasonably would have been available to the prosecution?

In June 2007, Contra Costa County Superior Court Judge Mary Ann O'Malley was appointed referee. The referee conducted an evidentiary hearing from September 13, 2010, through April 11, 2011, during which some 30 witnesses testified. The referee filed a thorough 64-page report with recommendations in this court on January 2, 2013. Welch and the Attorney General filed exceptions to that report on September 3, 2013, and replies on October 4, 2013.

II. Trial Evidence

One of the primary issues in this case is whether trial counsel's failure to introduce evidence of child abuse and neglect suffered by Welch was prejudicial at the penalty phase. Deciding this issue requires an examination of the evidentiary record as a whole. Accordingly, we include here the summation of the trial evidence from our opinion affirming Welch's death judgment on direct appeal.

" A. The Prosecution's Case

" In the morning hours of December 8, 1986, [Welch] and his girlfriend at the time, Rita Lewis, broke down the front door of Barbara Mabrey's home in Oakland, and killed six persons as they were sleeping in various rooms. Among the dead were Dellane Mabrey, the 16-year-old daughter of Barbara Mabrey and former lover of defendant, Sean and Darnell Mabrey, Barbara Mabrey's 21-year-old and 22-year-old sons, Catherine Walker and her 4-year-old son, Dwayne Miller, and Valencia Morgan, Dellane Mabrey and Leslie Morgan's 2-year-old daughter. Four people survived the attack: Barbara Mabrey escaped through the back door; her son Stacey Mabrey avoided detection by hiding in a bedroom closet; Leslie Morgan, though shot in the arm, feigned death and later escaped through the back door; and Dexter Mabrey, a nine-month-old child, was only grazed by one of the bullets that killed his mother and sister.

" Dellane and Valencia had been shot in the head at close range. Sean had been shot in the chest and head while sleeping on the living room couch. His

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wounds were fatal, puncturing the aorta. Darnell Mabrey had also been fatally shot in the head while sleeping. Catherine Walker and Dwayne Miller had been shot while sleeping on the sofa in the den. They, too, had both been shot in the head at close range while asleep.

" Defendant and the Mabreys had serious difficulties with each other in the few months before the shooting. Barbara Mabrey had met defendant in early 1986. Her daughter, Dellane, was dating defendant and said that defendant was Dexter's father. Around September [351 P.3d 310] 1986 Barbara and defendant had an argument over Dellane, with Barbara telling him to stay away. On October 9, 1986, shortly after Dexter was born, defendant broke into the house and at gunpoint took Dexter away from Barbara. Dellane and her daughter Valencia went with defendant and were gone for three days.

" A few days later, when Barbara was going to the store, defendant drove up to her and spat at her from the car window, yelling 'Bitch, you are dead.' He followed her home, striking her in the knee with his car as she tried to flee into her home and laughing as he did it. A day later he told one of Barbara's friends to stay out of his business and to tell Barbara that she is a 'dead bitch.' On October 20, 1986, he confronted [189 Cal.Rptr.3d 184] her again at a neighborhood market, throwing a liquid into her face. After cursing at her, he knocked her down and kicked her several times as she was on the ground. He escaped from the police on his motorcycle.

" On October 29, 1986, defendant entered the Mabrey house about 3:00 a.m. with a friend named Kenny and confronted Leslie Morgan and Dellane, slapping the latter in the face. He pointed the pistol at Barbara, telling her not to get near him and saying that she 'better not go to court and testify against him or his people' or else they were going to 'take care of' her, and that she would be killed slowly, shooting her arms off first and then her legs. He also ordered Leslie Morgan to leave, forcing him to flee in his underwear. He pointed a .45-caliber pistol towards the floor as he left Dellane's room. He told Darnell Mabrey 'don't do anything' as he pointed the gun in Darnell's direction. He left the residence.

" Defendant was arrested for the October 29th incident, and wrote Barbara a letter from jail requesting that she drop the charges. He was eventually released on bail.

" While at home with Dellane, Darnell, Sean, Stacey, Valencia and Dexter, Barbara received a visit from defendant on December 6, 1986, who apologized to her, although Barbara did not accept the apology. He came over with his two pit bull puppies, which had been placed in the yard, and, when he discovered one of them to be missing, angrily began accusing Darnell, Sean

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and Steve Early (who was also at the house) of taking the puppy. Denying he had taken the dog, Early left in his car with defendant close behind. As defendant left he told those present they had better find his dog or they would all be dead. Defendant then shot through Early's back window, all the while saying, 'you stole my dogs, you motherfucker.' He also said, as he was leaving, that they had better find his dog or they would all be dead.

" Early the next day, on December 7, 1986, defendant and Rita Lewis went to the Mabrey house, asking Barbara not to testify against him in court, where she was scheduled to appear on December 9. He also talked about Barbara's involvement in taking his dogs. Later that evening, Stacey's car was hit by a car driven by Vanessa Walker. A car with defendant, Dolores Walker, and two men, 'Billy the Kid' and William Henderson, drove up to the scene. Defendant got out of the car with a pistol in his hand and pistol-whipped Stacey's friend Perry. He kicked Dolores out of the car, saying something about a dog. Barbara heard him say that 'you Stone City niggers'--referring to the Stonehurst area of Oakland--'better get my dog or somebody's going to die.' Later he told Dolores Walker that 'its [ sic ] going to be some bullshit tonight.'

" In the early morning hours of December 8, 1986, defendant returned to the Mabrey house. Stacey, Barbara and Leslie Morgan all identified defendant as the shooter that morning. They all identified Lewis as his accomplice.

" According to this testimony, defendant was carrying an Uzi carbine in his hand and Lewis was holding a .38-caliber revolver. Stacey Mabrey went to his room and hid near the closet as defendant looked past him in the room and asked, 'where's Chuck,' Stacey's younger brother, who normally slept in the room. Stacey heard several more shots. Urged by Lewis to leave, defendant left the house, limping and holding on to Lewis and another person who helped him into a car.

" Barbara also woke up to gunshots and heard Dellane screaming, 'no, Moochie, [351 P.3d 311] [189 Cal.Rptr.3d 185] don't.' [('Moochie' was defendant's nickname.)] She saw Lewis pointing a gun and telling defendant to get out of the way. Lewis had a pistol in her hands and Barbara heard more gunfire before she escaped out of the house by the rear.

" Leslie Morgan testified that defendant stood at close range as he shot Dellane, saying, 'this is for you, bitch.' He also shot Valencia in the head. Leslie grabbed him and struggled with him, knocking his Uzi to the ground. Rita Lewis shot Leslie in the shoulder as they struggled. After defendant found his gun, he shot Leslie twice more in the arm and Leslie played dead. Leslie did, however, see defendant straddle Dellane's body and heard another gunshot.

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" Defendant and Lewis went to Beverly Jermany's residence at 2116 103d Avenue in Oakland shortly after the murders, about 5:00 a.m. Defendant, who was a second cousin of Jermany's, was lying on the porch and could not walk. He was in pain and only semiconscious. Lewis told Jermany that she had accidentally shot him. She was carrying a pillowcase. Jermany asked Lewis whether it contained drugs and she said it did not. She took the pillowcase outside and did not return with it. Jermany eventually notified the police that defendant was at her house, and he and Lewis were apprehended.

" The murder weapons were found in a pillowcase in the backyard of Jermany's house. There was an Uzi, a Smith and Wesson .357 handgun and a .38-caliber Taurus revolver. The Uzi had a twenty-five-round capacity and was loaded with one round in the chamber and four rounds in the magazine. The .357 handgun was loaded and contained three live rounds and three spent rounds. The .38-caliber revolver was loaded with two live rounds and four expended cartridges. One slug recovered at the murder scene was fired from a Smith and Wesson .357. Other bullet fragments could have been fired by either a Smith and Wesson or a Taurus.

" Burned clothing was recovered from the fireplace. Blood found on tennis shoes recovered from 2116 103d Avenue matched Leslie Morgan's blood. One of the tennis shoes could have made a shoe print found on Barbara Mabrey's front door.

" B. The Defense

" The defense was characterized by differing strategies by trial counsel and by defendant. Defendant was the first witness for the defense. Taking the stand without a recess, and over defense counsel's protest that he wanted time to speak with him to find out what questions to ask, defendant testified generally that he did not commit the murders. He declined to answer questions about who had shot him, and testified that he was shot in the leg between midnight and 5:00 a.m. in an incident at Scotty's liquor store, rather than at Barbara Mabrey's home. Defendant claimed that he had nothing to do with the shooting at the house the morning of December 8, 1986, and never threatened any of the Mabreys. He had gone to his cousin's house after being wounded because he believed there might be warrants for his arrest related to other matters. He also testified that he was a victim of mistaken identity, and that it must have been some other 'Moochie' who had committed the murders.

" The thrust of the defense presented by trial counsel, on the other hand, was that defendant's mental impairment from drug and alcohol intoxication at the time he committed the murders was such that he lacked the premeditation

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and deliberation necessary for a first degree murder conviction. A urine screen and qualitative blood analysis had been performed on blood drawn from defendant on December [189 Cal.Rptr.3d 186] 8, 1986. Defendant had alcohol in his blood, and cocaine and morphine, a metabolite of heroin, in his urine. A quantitative analysis was never performed, so the exact amounts of alcohol, heroin, and cocaine defendant had consumed could not be estimated. Dr. Paul Herrmann explained the effects that these substances can generally have on the central nervous system. Alcohol and heroin, both depressants, and cocaine, a stimulant, whether consumed separately or in combination, can have a deleterious effect on motor skills and mental functioning, even at very low levels. Testimony to the same effect was provided by [351 P.3d 312] Dr. Fred Rosenthal, who also listed sleep deprivation as an additional factor affecting coherent thought processing. Trial counsel also presented a number of witnesses acquainted with defendant for the apparent purpose of demonstrating that he tended to act impulsively.

" C. Penalty Phase

" 1. Prosecution Evidence in Aggravation

" The prosecution introduced evidence that defendant had been convicted of three prior felonies: assault with a deadly weapon, in violation of section 245, subdivision (a), on May 8, 1981; receiving stolen property, in violation of section 473, on August 5, 1981; and assault on a police officer in violation of section 243, subdivision (c), on April 7, 1983.

" Evidence of a number of instances of uncharged violent conduct was also introduced. While in juvenile hall in October 1973, defendant hit a counselor and spit on him as he was trying to run away from the facility. He had just been brought down for disciplinary problems from one of the camps to a more secure facility.

" Defendant, when he was a juvenile, discharged a shotgun into Faye McPherson's residence on December 26, 1975. The McPhersons had been his neighbors for 11 years and had not previously had any problems with him. The blast damaged the walls above her child's crib.

" On March 20, 1979, defendant was involved in a high-speed chase with several San Francisco police officers. When the police finally stopped his motorcycle, he got off and a struggle ensued, with defendant punching and kicking the officers. He hit one of the officers with clenched fists and kicked him as well. He also tried to run over another officer with his motorcycle, getting within three to five feet before the officer jumped out of the way.

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" On December 20, 1979, defendant assaulted Oakland Police Officer Rosemary Dixon while she was working at the warrant division at the station house; she suffered serious injuries as a result of the assault.

" Defendant raped and sodomized Jaunell T., a former lover, on May 21, 1980.

" On January 22, 1985, while in maximum security custody, defendant got into a fight with another inmate. He did not stop fighting when ordered and eventually had to be subdued with Mace.

" On July 12, 1985, he fought with another inmate while they were being transported to jail from court.

" On December 16, 1987, while in custody for this case, defendant refused to go to court and started swinging at one of the correctional officers. He gave Deputy Charles Utvick a glancing blow to the side of the head. He made a statement to Deputy Mark Johnson that he was going to kill him or have him killed, and that he would have the rest of the deputies taken care of as well.

" Several instances of violent behavior while defendant was incarcerated at state [189 Cal.Rptr.3d 187] prison were introduced. On December 9, 1981, while in a visiting room, he grabbed his wife, Terry West, by the neck and threw her against the wall. On February 19, 1982, defendant struck a correctional officer in the jaw. On June 24, 1982, he spit on Correctional Captain Steven D. Lawrence several times after Lawrence meted out a 30-day loss of privilege following a disciplinary hearing. Shortly thereafter when he got back to his cell from the disciplinary hearing he threw some fecal matter at Correctional Officer Roy Wade Gowin, hitting Gowin in the face. He then started hitting Gowin and another officer, swinging the handcuffs during the struggle. Gowin was struck twice by the handcuffs during the struggle and required medical treatment for the cuts on his forehead and eyebrow. Defendant also bit him.

" On September 25, 1982, while in jail, defendant struck a deputy sheriff in the face with a closed fist. After the deputy sprayed defendant in the face with Mace, ... defendant hit the deputy again in the face with his fists. The deputy suffered lacerations of his chin and left eye and several cracked ribs, and lost time from work for about two weeks.

" 2.Defense Mitigation Evidence

" Defendant told the trial court that he did not want to put on any mitigating evidence. [351 P.3d 313] Over his protest, trial counsel indicated that he had, and would put

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on, two mitigation witnesses to show that defendant was under the influence of extreme mental or emotional disturbance at the time of the murders and that he lacked the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defect, or the effects of intoxication. Dr. William D. Pierce, a clinical ...

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