Metropolitan News-Enterprise


Tuesday, November 17, 2009


Page 1


U.S. High Court Reinstates Death Sentence in San Joaquin Valley Case


By STEVEN M. ELLIS, Staff Writer


The U.S. Supreme Court yesterday for the third time reinstated the death sentence of a San Joaquin County man who in 1982 beat to death a 19-year-old woman who caught him burglarizing her home.

The justices, in a per curiam opinion, overturned a Ninth U.S. Circuit Court of Appeals ruling that Fernando Belmontes suffered ineffective assistance when his attorney did not present additional mitigating evidence in order to keep out evidence that Belmontes committed a prior murder.

A jury convicted Belmontes of murder for bludgeoning Steacy McConnell in the head 15 to 20 times with a steel dumbbell bar at her home in Victor, near Stockton. After the murder, Belmontes and accomplices stole McConnell’s stereo and sold it for $100 to buy beer and drugs for the night.

At trial, Stockton attorney John Schick succeeded in excluding evidence that Belmontes had killed Jerry Howard with a bullet to the back of the head two years earlier. Belmontes pled guilty to accessory after the fact to voluntary manslaughter in Howard’s death when a key witness refused to cooperate and prosecutors could prove only that Belmontes possessed the gun that killed Howard.

Mitigation Strategy

Belmontes later boasted of the killing and the judge trying him for McConnell’s murder ruled that the evidence could be used for rebuttal or impeachment if Belmontes opened the door with respect to character, so Schick, as he would later testify in habeas corpus proceedings, built his mitigation strategy around the overriding need to exclude it.

A jury sentenced Belmontes to death and a U.S. district judge denied federal habeas relief, but the Ninth Circuit held that a standard jury instruction once used in death penalty cases deprived Belmontes of the constitutional right to have all evidence of mitigating factors considered by the jury.

At trial, the judge instructed the jury on the aggravating and mitigating factors applicable to capital cases in California, including the mitigating factor set out in Penal Code Sec. 190.3(k). Jurors were told to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

The U.S. Supreme Court reversed in 2006 by a vote of 5-4, but the Ninth Circuit on remand held that Belmontes was entitled to a new penalty trial. When the Supreme Court again reversed, the Ninth Circuit held that Schick’s performance during the sentencing phase was deficient.

Belmontes argued that Schick was ineffective for failing to investigate and present sufficient mitigating evidence, including additional testimony regarding Belmontes’ “terrible childhood” and evidence of a religious conversion.

Same Result

However, the Supreme Court—assuming for the sake of argument that Schick’s representation was deficient—said that Belmontes could not show that the result would have been different but for Schick’s performance. The court concluded that some of the additional evidence was cumulative, while the remainder would have put into play aspects of Belmontes’ character that would have triggered admission of evidence of his role in Howard’s murder.

Examining all mitigating and aggravating factors, including the fact that police officers found McConnell still fighting for her life before she ultimately succumbed to her injuries, the justices wrote:

“It is hard to imagine expert testimony and additional facts about Belmontes’ difficult childhood outweighing the facts of McConnell’s murder. It becomes even harder to envision such a result when the evidence that Belmontes had committed another murder…is added to the mix. Schick’s mitigation strategy failed, but the notion that the result could have been different if only Schick had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful.”

Dissenting View

Justice John Paul Stevens concurred that Schick’s performance “probably did not affect the outcome,” but wrote separately to reaffirm his belief that the Ninth Circuit correctly set aside Belmontes’ death sentence in its initial review.

Stevens, joined by Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter, dissented in 2006 that the jury instruction effectively told jurors to ignore evidence offered to show that Belmontes could lead a productive life in prison.

The case is Wong v. Belmontes, 08-1263.

In other news, the Supreme Court yesterday:

Invited the solicitor general to file a brief expressing the views of the United States in an appeal of the Ninth Circuit’s March decision in Doe v. Holy See, 557 F.3d 1066 that a man who claims he was molested by his parish priest in Portland, Ore., in the 1960s may sue the Vatican on a respondeat superior theory.

The plaintiff claims he was 15 or 16 when Father Andrew Ronan abused him, and that church authorities kept Ronan—who died in 1992—in the priesthood, moving him from Ireland to Chicago to Portland despite knowing that he was a pedophile. The Vatican has sought to dismiss the complaint in its entirety on the basis that no statutory exception applies to the Foreign Sovereign Immunities Act’s bar on suits against foreign sovereigns.

Denied certiorari in a case involving the death sentence of a gang member who killed two college students from Japan, Takuma Ito and Go Matsuura, during a 1994 carjacking in the parking lot of a San Pedro supermarket. The California Supreme Court in June in People v. Butler 46 Cal.4th 847 rejected the contention that a Los Angeles Superior Court judge coerced the jury into reaching a death penalty verdict for Raymond Oscar Butler.

Denied certiorari to Michael L. Bramit, who was sentenced to death in Riverside Superior Court for the 1994 robbery-murder of Jose Fierros in the parking lot of a Banning mini-mart. The California Supreme Court held in July in People v. Bramit 46 Cal.4th 1221 that the trial court did not deprive Bramit of his constitutional rights by telling the jury, in response to a question, that the governor would have the power to commute any sentence of life imprisonment without parole.


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