Metropolitan News-Enterprise


Wednesday, November 12, 2008


Page 1


Court Grants Rehearing Over Ineffective Assistance Claim




The Ninth U.S. Circuit Court of Appeals Monday granted en banc rehearing to two men—now serving life sentences without possibility of parole for murder—who claim police misplaced evidence that might have established a reasonable doubt about their guilt.

The court, in a brief order signed by Chief Judge Alex Kozinski, said that a majority of the court’s unrecused active judges had voted to grant rehearing to Joshua Richter and Christian Branscombe. Judge Consuelo Callahan, who sat on the Third District Court of Appeal panel that affirmed the convictions, recused herself.

A three-judge Ninth Circuit panel denied relief in April.

A Sacramento Superior Court jury convicted the two men of murder, attempted murder, robbery and burglary. Prosecutors say the two men tried to steal a gun safe from the home of Joshua Johnson, a friend of Richter’s who admitted that he grew marijuana on the premises, but that the man woke up and was shot by Branscombe. He survived, but another man in the house, Patrick Klein, was shot to death.

Johnson said a Mac-12 handgun and about $6,000 in cash were taken from the house.

The defense contended that Branscombe and Richter went to the house to give Johnson’s housemate some property that belonged to him, and to return a gun they had borrowed; that Richter stayed in his truck while Branscombe went inside, and that Johnson and Klein—in Branscombe’s words—“totally freaked out” and began shooting at him before he ran out of the house, after picking the .380 caliber Mac-12 up off the floor.

After losing their state appeals and a habeas corpus case in the Eastern District of California, the men obtained a certificate of appealability from the Ninth Circuit.

Among the arguments they raised was that a piece of floorboard, recovered after the trial, had a hole—most likely from a .380 caliber weapon—in it. Had the evidence been introduced at trial, they contended, it would have supported the defense claim that Johnson fired at Branscombe the night of the killing and contradicted Johnson’s claim that the hole was created when Johnson accidentally fired a .22 caliber handgun while cleaning it two weeks earlier.

A prosecution investigator who investigated the hole during trial testified that he cut out the piece of floorboard with the hole in it, in an unsuccessful effort to find the bullet, but that the board fell into the crawl space behind the house and there was no way to retrieve it. The hole, he testified, was consistent with a .22 caliber bullet.

After trial, however, Richter’s father discovered that the crawl space was accessible and retrieved the floorboard, giving it to his son’s attorney. The attorney turned it over to a firearms expert, who concluded that the bullet was probably from a .380 caliber gun, not a .22.

In the habeas corpus proceedings, both petitioners claimed that the investigator’s failure to recover the floorboard violated the prosecution’s duty to disclose exculpatory evidence under Brady v. Maryland. Richter additionally claimed that his attorney provided ineffective assistance by failing to determine that the evidence was recoverable.

Senior Judge Robert Beezer, writing for the panel, rejected both contentions.

There was no Brady violation, the judge said, because the investigator did not, at the time, know that the evidence was exculpatory.

Beezer cited California v. Trombetta (1984)  467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51, both of which held that where authorities, not acting in bad faith, lost or destroyed evidence before its inculpatory or exculpatory value could be determined, there was no violation of the defendant’s due process rights. Trombetta involved breath samples taken from suspected drunk drivers, while in Youngblood, the police failed to preserve semen on clothing that the defendant claimed might have exculpated him on sexual assault charges.

Beezer wrote:

“Applying the Trombetta-Youngblood rule here, we finding no evidence in the record of bad faith on the part of [investigator] Maloney or the prosecution. Maloney testified that he believed the floorboard to be in an inaccessible location after he cut it out of the floor in Johnson’s residence. The prosecution fully disclosed the nature and  location of the evidence.  At worst, Maloney’s actions could be described as negligent.”

The jurist similarly rejected the ineffective assistance claim, saying counsel could have reasonably believed both that the floorboard was inaccessible and that its recovery would hurt the case rather than help.

Beezer also rejected claims that the defense lawyers rendered ineffective assistance by failing to call experts in firearms, serology and pathology. “Even assuming that trial counsels’ failure to consult and present such experts was unreasonable,” the judge wrote, “appellants do not show that such failure prejudiced their case.”

The overwhelming weight of the evidence, Beezer said, established that Branscombe did not fire in self-defense, and that the blood found in Johnson’s bedroom was Johnson’s, not Klein’s, contradicting the defense theory that Klein struggled with Branscombe and was shot by an errant bullet from Johnson’s .22 caliber gun, so that expert testimony suggesting otherwise would not likely have resulted in a different verdict.

 Beezer acknowledged that the performance of Branscombe’s trial counsel, Thomas Dixon—who was disbarred in 2004 after a long history of State Bar disciplinary actions—was “lackluster,” but said it did not amount to “a complete failure to contest the prosecution’s case.” Dixon, the judge noted, cross-examined witnesses, successfully moved to suppress or strike some of the prosecution’s evidence, and attempted to prove the self-defense theory.

Senior Judge Stephen S. Trott and Judge N. Randy Smith were also on the panel and concurred in Beezer’s opinion.

The case is Richter v. Hickman, 06-15614.


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