PER CURIAM
WONG V. BELMONTES
558 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
ROBERT WONG, WARDEN
v. FERNANDO BELMONTES,
Jr.
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 08–1263. Decided November 16, 2009
Per Curiam.
In 1981, in the course of a
burglary, Fernando Belmontes bludgeoned Steacy McConnell to death,
striking her in the head 15 to 20 times with a steel dumbbell bar.
See
People v.
Belmontes,
45 Cal. 3d
744, 759–761,
755 P.2d 310,
315–316 (1988). After the murder, Belmontes and his accomplices
stole McConnell’s stereo, sold it for $100, and used the money to
buy beer and drugs for the night.
Id., at 764–765, 755
P. 2d, at 318–319.
Belmontes was convicted of murder and
sentenced to death in state court. Unsuccessful on direct appeal
and state collateral review, Belmontes sought federal habeas
relief, which the District Court denied. The Court of Appeals
reversed, finding instructional error, but we overturned that
decision.
Ayers v.
Belmontes,
549 U. S. 7 (2006); see
also
Brown v.
Belmontes,
544 U. S. 945 (2005).
On remand, the Court of Appeals again ruled for
Belmontes, this time finding that Belmontes suffered ineffective
assistance of counsel during the sentencing phase of his trial. The
District Court had previously denied relief on that ground, finding
that counsel for Belmontes had performed deficiently under Ninth
Circuit precedent, but that Belmontes could not establish prejudice
under
Strickland v.
Washington,
466 U. S. 668 (1984).
Belmontes v.
Calderon, Civ. S–89–0736 DFL JFM (ED
Cal., Aug. 15, 2000), App. to Pet. for Cert. 140a, 179a, 183a. The
Court of Appeals agreed that counsel’s performance was deficient,
but disagreed with the District Court with respect to prejudice,
determining that counsel’s errors undermined confidence in the
penalty phase verdict.
Belmontes v.
Ayers, 529
F. 3d 834, 859–863, 874 (CA9 2008). We disagree with the Court
of Appeals as to prejudice, grant the State’s petition for
certiorari, and reverse.
I
Belmontes argues that his counsel
was constitutionally ineffective for failing to investigate and
present sufficient mitigating evidence during the penalty phase of
his trial. To prevail on this claim, Belmontes must meet both the
deficient performance and prejudice prongs of
Strickland,
466 U. S., at 687. To show deficient performance, Belmontes must
establish that “counsel’s representation fell below an objective
standard of reasonableness.”
Id., at 688. In light of “the
variety of circumstances faced by defense counsel [and] the range
of legitimate decisions regarding how best to represent a criminal
defendant,” the performance inquiry necessarily turns on “whether
counsel’s assistance was reasonable considering all the
circumstances.”
Id., at 688–689. At all points,
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.”
Id., at 689.
The challenge confronting
Belmontes’ lawyer, John Schick, was very specific. Substantial
evidence indicated that Belmontes had committed a prior murder, and
the prosecution was eager to introduce that evidence during the
penalty phase of the McConnell trial. The evidence of the prior
murder was extensive, including eyewitness testimony, Belmontes’
own admissions, and Belmontes’ possession of the murder weapon and
the same type of ammunition used to kill the victim. Record
2239–2250, 2261; Deposition of John Schick, Exhs. 62, 63, 64 (Sept.
26, 1995).
The evidence, furthermore, was potentially
devastating. It would have shown that two years before Steacy
McConnell’s death, police found Jerry Howard’s body in a secluded
area. Howard had been killed execution style, with a bullet to the
back of the head. The authorities suspected Belmontes, but on the
eve of trial the State’s witnesses refused to cooperate (Belmontes’
mother had begged one not to testify). The prosecution therefore
believed it could not prove Belmontes guilty of murder beyond a
reasonable doubt. What the prosecution could prove, even without
the recalcitrant witnesses, was that Belmontes possessed the gun
used to murder Howard. So the State offered, and Belmontes
accepted, a no-contest plea to accessory after the fact to
voluntary manslaughter. Record 2239–2243; Deposition of John
Schick, Exhs. 62, 63, 64.
But Belmontes had not been shy
about discussing the murder, boasting to several people that he had
killed Howard. Steven Cartwright informed the district attorney
that Belmontes had confessed to the murder. A police informant told
detectives that Belmontes “bragged” about the murder, stating that
he was “mad” at Howard because “the night before, he had quite a
[lot] of dope and wouldn’t share it with him.” After double
jeopardy protection set in and he had been released on parole,
Belmontes admitted his responsibility for the murder to his
counselor at the California Youth Authority, Charles Sapien. During
his time in confinement, Belmontes had “always denied that he was
the [one] who shot Jerry Howard.” But because Sapien “had been
square with [Belmontes],” Belmontes decided to level with Sapien
upon his release, telling Sapien that he had “ ‘wasted’ that
guy.” Record 2240; Deposition of John Schick, Exhs. 62, 63,
64.
Schick understood the gravity of
this aggravating evidence, and he built his mitigation strategy
around the overriding need to exclude it. California evidentiary
rules, Schick knew, offered him an argument to exclude the
evidence, but those same rules made clear that the evidence would
come in for rebuttal if Schick opened the door. Record 2256; see
also People v. Rodriguez, 42 Cal. 3d
730, 791–792, 726 P.2d 113,
153 (1986); People v. Harris, 28 Cal. 3d
935, 960–962, 623 P. 2d 240, 254 (1981). Schick thus had
“grave concerns” that, even if he succeeded initially in excluding
the prior murder evidence, it would still be admitted if his
mitigation case swept too broadly. Accordingly, Schick decided to
proceed cautiously, structuring his mitigation arguments and
witnesses to limit that possibility. Deposition of John Schick 301,
309–310; see Strickland, supra, at 699
(“Restricting testimony on respondent’s character to what had come
in at the plea colloquy ensured that contrary character and
psychological evidence and respondent’s criminal history, which
counsel had successfully moved to exclude, would not come
in”).
As Schick expected, the
prosecution was ready to admit this evidence during the sentencing
phase. Schick moved to exclude the evidence, arguing that the State
should be allowed to tell the jury only that Belmontes had been
convicted of being an accessory after the fact to voluntary
manslaughter—nothing more. Record 2240–2254. Schick succeeded in
keeping the prosecution from presenting the damaging evidence in
its sentencing case in chief, but his client remained at risk: The
trial court indicated the evidence would come in for rebuttal or
impeachment if Schick opened the door. Id., at
2256.
This was not an empty threat. In
one instance, Schick elicited testimony that Belmontes was not a
violent person. The State objected and, out of earshot of the jury,
argued that it should be able to rebut the testimony with the
Howard murder evidence. Id., at 2332–2334. The Court
warned Schick that it was “going to have to allow [the prosecution]
to go into the whole background” if Schick continued his line of
questioning. Id., at 2334. Schick acquiesced, and the
court struck the testimony. Ibid.
The Court’s warning reinforced
Schick’s understanding that he would have to tailor his mitigation
case carefully to preserve his success in excluding the Howard
murder evidence. With that cautionary note in mind, Schick put on
nine witnesses he thought could advance a case for mitigation,
without opening the door to the prior murder evidence. See
id., at 2312–2417.
The Court of Appeals determined
that in spite of these efforts, Schick’s performance was
constitutionally deficient under Circuit precedent.
Belmontes, 529 F. 3d, at 862–863. The State
challenges that conclusion, but we need not resolve the point,
because we agree with the District Court that Belmontes cannot
establish prejudice.
II
To establish
prejudice, Belmontes must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U. S., at 694.
That showing requires Belmontes to establish “a reasonable
probability that a competent attorney, aware of [the available
mitigating evidence], would have introduced it at sentencing,” and
“that had the jury been confronted with this … mitigating evidence,
there is a reasonable probability that it would have returned with
a different sentence.” Wiggins v. Smith, 539 U. S. 510, 535, 536
(2003).
The Ninth Circuit
determined that a reasonably competent lawyer would have introduced
more mitigation evidence, on top of what Schick had already
presented. For purposes of our prejudice analysis, we accept that
conclusion and proceed to consider whether there is a reasonable
probability that a jury presented with this additional mitigation
evidence would have returned a different verdict.
In evaluating that question, it is
necessary to consider all the relevant evidence that the
jury would have had before it if Schick had pursued the different
path—not just the mitigation evidence Schick could have presented,
but also the Howard murder evidence that almost certainly would
have come in with it. See Strickland, supra, at
695–696, 700. Thus, to establish prejudice, Belmontes must show a
reasonable probability that the jury would have rejected a capital
sentence after it weighed the entire body of mitigating evidence
(including the additional testimony Schick could have presented)
against the entire body of aggravating evidence (including the
Howard murder evidence). Belmontes cannot meet this
burden.
We begin with the mitigating
evidence Schick did present during the sentencing phase. That
evidence was substantial. The same Ninth Circuit panel addressing
the same record in Belmontes’ first habeas appeal agreed,
recognizing “the substantial nature of the mitigating evidence”
Schick presented. Belmontes v. Woodford, 350
F. 3d 861, 907 (2003). It reiterated the point several times.
See id., at 874, 901, 908.
All told, Schick put nine
witnesses on the stand over a span of two days, and elicited a
range of testimony on Belmontes’ behalf. A number of those
witnesses highlighted Belmontes’ “terrible” childhood. They
testified that his father was an alcoholic and extremely abusive.
Belmontes’ grandfather described the one-bedroom house where
Belmontes spent much of his childhood as a “chicken coop.”
Belmontes did not do well in school; he dropped out in the ninth
grade. His younger sister died when she was only 10 months old. And
his grandmother died tragically when she drowned in her swimming
pool. See Record 2314–2319, 2324–2325, 2344.
Family members also testified
that, despite these difficulties, Belmontes maintained strong
relationships with his grandfather, grandmother, mother, and
sister. Id., at 2317–2318, 2325–2326. And Belmontes’ best
friend offered the insights of a close friend and confidant.
Id., at 2329–2332.
Schick also called witnesses who
detailed Belmontes’ religious conversion while in state custody on
the accessory charge. These witnesses told stories about Belmontes’
efforts advising other inmates in his detention center’s religious
program, to illustrate that he could live a productive and
meaningful life in prison. They described his success working as
part of a firefighting crew, detailing his rise from lowest man on
the team to second in command. Belmontes’ assistant chaplain even
said that he would use Belmontes as a regular part of his prison
counseling program if the jury handed down a life sentence.
Id., at 2379–2384, 2396–2398, 2400–2407.
Belmontes himself bolstered these
accounts by testifying about his childhood and religious
conversion, both at sentencing and during allocution. Belmontes
described his childhood as “pretty hard,” but took responsibility
for his actions, telling the jury that he did not want to use his
background “as a crutch[,] to say I am in a situation now … because
of that.” Id., at 2343.
On remand from this Court, the
Court of Appeals—addressing Belmontes’ ineffective assistance claim
for the first time—changed its view of this evidence. Instead of
finding Schick’s mitigation case “substantial,” as it previously
had, Belmontes, 350 F. 3d, at 907, the Ninth Circuit
this time around labeled it “cursory,” Belmontes, 529
F. 3d, at 841, 861, n. 14, 866. Compare also
Belmontes, 350 F. 3d, at 874, 901, 907 (labeling the
mitigation evidence Schick presented “substantial”), with
Belmontes, 529 F. 3d, at 847, n. 3, 874 (labeling the
same evidence “insubstantial”). More evidence, the Court of Appeals
now concluded, would have made a difference; in particular, more
evidence to “humanize” Belmontes, as that court put it no fewer
than 11 times in its opinion. Belmontes, 529 F. 3d,
at 850, 859, 860, 862, 863, 864, 865, and n. 18, 869, 872,
874. The Court determined that the failure to put on this evidence
prejudiced Belmontes.
There are two problems with this
conclusion: Some of the evidence was merely cumulative of the
humanizing evidence Schick actually presented; adding it to what
was already there would have made little difference. Other evidence
proposed by the Ninth Circuit would have put into play aspects of
Belmontes’ character that would have triggered admission of the
powerful Howard evidence in rebuttal. This evidence would have made
a difference, but in the wrong direction for Belmontes. In either
event, Belmontes cannot establish Strickland
prejudice.
First, the cumulative evidence. In
the Court of Appeals’ view, Belmontes should have presented more
humanizing evidence about Belmontes’ “difficult childhood” and
highlighted his “positive attributes.” 529 F. 3d, at 864. As
for his difficult childhood, Schick should have called witnesses to
testify that “when Belmontes was five years old, his 10-month-old
sister died of a brain tumor,” that he “exhibited symptoms of
depression” after her death, that his grandmother suffered from
“alcoholism and prescription drug addiction,” and that both his
immediate and extended family lived in a state of “constant
strife.” Ibid. As for his positive attributes, Schick
should have produced testimony about Belmontes’ “strong character
as a child in the face of adversity.” Ibid. Schick should
have illustrated that Belmontes was “kind, responsible, and
likeable”; that he “got along well with his siblings” and was
“respectful towards his grandparents despite their disapproval of
his mixed racial background”; and that he “participated in
community activities, kept up in school and got along with his
teachers before [an] illness, and made friends easily.”
Ibid.
But as recounted above and
recognized by the state courts and, originally, this very panel,
Schick did put on substantial mitigation evidence, much of
it targeting the same “humanizing” theme the Ninth Circuit
highlighted. Compare, e.g., ibid., with Record
2317 (death of 10-month-old sister); id., at 2319, 2325
(difficult childhood); id., at 2314–2315 (family member’s
addictions); id., at 2314–2315, 2324–2325 (family strife
and abuse); id., at 2317, 2319, 2347–2348, 2397 (strong
character as a child); id., at 2326–2327 (close
relationship with siblings); id., at 2317–2319 (close
relationship with grandparents); id., at 2348–2351
(participation in community religious events); see also,
e.g., Belmontes’ Traverse to Respondent’s Return to Pet.
for Writ of Habeas Corpus in No. 5–89–0736–EJG–JFM (ED Cal.),
p. 64 (“[C]ounsel’s presentation was arguably adequate only
with respect to [evidence] of ‘humanizing’ petitioner”). The
sentencing jury was thus “well acquainted” with Belmontes’
background and potential humanizing features. Schriro v.
Landrigan, 550 U. S. 465, 481
(2007). Additional evidence on these points would have offered an
insignificant benefit, if any at all.
The Ninth Circuit also determined
that both the evidence Schick presented and the additional evidence
it proposed would have carried greater weight if Schick had
submitted expert testimony. Such testimony could “make connections
between the various themes in the mitigation case and explain to
the jury how they could have contributed to Belmontes’s involvement
in criminal activity.” Belmontes, 529 F. 3d, at 853.
See also ibid. (discussing expert’s federal habeas
testimony on importance of expert testimony). But the body of
mitigating evidence the Ninth Circuit would have required Schick to
present was neither complex nor technical. It required only that
the jury make logical connections of the kind a layperson is well
equipped to make. The jury simply did not need expert testimony to
understand the “humanizing” evidence; it could use its common sense
or own sense of mercy.
What is more, expert testimony
discussing Belmontes’ mental state, seeking to explain his
behavior, or putting it in some favorable context would have
exposed Belmontes to the Howard evidence. See Darden v.
Wainwright, 477 U. S. 168, 186
(1986) (“Any attempt to portray petitioner as a nonviolent man
would have opened the door for the State to rebut with evidence of
petitioner’s prior convictions… . Similarly, if defense
counsel had attempted to put on evidence that petitioner was a
family man, they would have been faced with his admission at trial
that, although still married, he was spending the weekend furlough
with a girlfriend”).
If, for example, an expert had
testified that Belmontes had a “ ‘high likelihood of a …
nonviolent adjustment to a prison setting,’ ” as Belmontes
suggested an expert might, see Brief for Appellant in No. 01–99018
(CA9), p. 34, the question would have immediately arisen:
“What was his propensity toward violence to begin with? Does
evidence of another murder alter your view?” Expert testimony
explaining why the jury should feel sympathy, as opposed
simply to facts that might elicit that response, would have led to
a similar rejoinder: “Is such sympathy equally appropriate for
someone who committed a second murder?” Any of this testimony from
an expert’s perspective would have made the Howard evidence fair
game.
Many of Belmontes’ other arguments
fail for the same reason. He argues that the jury should have been
told that he suffered an “extended bout with rheumatic fever,”
which led to “emotional instability, impulsivity, and impairment of
the neurophysiological mechanisms for planning and reasoning.”
Amended Pet. for Writ of Habeas Corpus 120. But the cold,
calculated nature of the Howard murder and Belmontes’ subsequent
bragging about it would have served as a powerful
counterpoint.
The type of
“more-evidence-is-better” approach advocated by Belmontes and the
Court of Appeals might seem appealing—after all, what is there to
lose? But here there was a lot to lose. A heavyhanded case to
portray Belmontes in a positive light, with or without experts,
would have invited the strongest possible evidence in rebuttal—the
evidence that Belmontes was responsible for not one but two
murders.
Belmontes counters that some of
the potential mitigating evidence might not have opened the door to
the prior murder evidence. The Court of Appeals went so far as to
state, without citation, that “[t]here would be no basis for
suggesting that [expert testimony] would be any different if the
expert were informed that Belmontes committed two murders rather
than one.” Belmontes, 529 F. 3d, at 869, n. 20.
But it is surely pertinent in assessing expert testimony
“explain[ing] … involvement in criminal activity,” id., at
853, to know what criminal activity was at issue. And even if the
number of murders were as irrelevant as the Ninth Circuit asserted,
the fact that these two murders were so different in
character made each of them highly pertinent in evaluating expert
testimony of the sort envisioned by the Court of
Appeals.
The Ninth Circuit noted that the
trial court retained discretion to exclude the Howard evidence even
if Schick opened the door. Id., at 869–870, n. 20. If
Schick had doubts, the Court of Appeals contended, he could have
secured an answer in advance through a motion in limine.
Ibid. The trial judge, however, left little doubt where he
stood. While ruling that the prosecution could not present the
evidence in its case in chief, Record 2254, the judge made clear
that it would come in for certain rebuttal purposes, id.,
at 2256, 2332–2334. When Schick elicited testimony that Belmontes
was not violent, for example, the judge ordered it stricken and
warned Schick that he would admit the Howard murder evidence—to let
the prosecution “go into the whole background”—if Schick pressed
forward. Id., at 2334.
In balancing the mitigating
factors against the aggravators, the Court of Appeals repeatedly
referred to the aggravating evidence the State presented as
“scant.” Belmontes, 529 F. 3d, at 870, 873, 874, 875,
878. That characterization misses Strickland’s point that
the reviewing court must consider all the evidence—the good and the
bad—when evaluating prejudice. See Strickland, 466 U. S.,
at 695–696, 700. Here, the worst kind of bad evidence would have
come in with the good. The only reason it did not was because
Schick was careful in his mitigation case. The State’s aggravation
evidence could only be characterized as “scant” if one ignores the
“elephant in the courtroom”—Belmontes’ role in the Howard
murder—that would have been presented had Schick submitted the
additional mitigation evidence. Belmontes v.
Ayers, 551 F. 3d 864, 867 (CA9 2008) (Callahan, J.,
dissenting from denial of rehearing en banc).
Even on the record before it—which
did not include the Howard murder—the state court determined that
Belmontes “was convicted on extremely strong evidence that he
committed an intentional murder of extraordinary brutality.”
Belmontes, 45 Cal. 3d, at 819, 755 P. 2d, at 354. That
court also noted that “[t]he properly admitted aggravating evidence
in this case—in particular, the circumstances of the crime—was
simply overwhelming.” Id., at 809, 755 P. 2d, at 348
(citation omitted). The Ninth Circuit saw the murder differently.
It viewed the circumstances of the crime as only “conceivably
significant” as an aggravating factor. Belmontes, 529
F. 3d, at 871. In particular, the Court of Appeals concluded
that “[t]he crime here did not involve … needless suffering on the
part of the victim.” Ibid.
We agree with the state court’s
characterization of the murder, and simply cannot comprehend the
assertion by the Court of Appeals that this case did not involve
“needless suffering.” The jury saw autopsy photographs showing
Steacy McConnell’s mangled head, her skull crushed by 15 to 20
blows from a steel dumbbell bar the jury found to have been wielded
by Belmontes. McConnell’s corpse showed numerous “defensive bruises
and contusions on [her] hands, arms, and feet,” id., at
839, which “plainly evidenced a desperate struggle for life at
[Belmontes’] hands,” Belmontes, 755 P. 2d, at 354.
Belmontes left McConnell to die, but officers found her still
fighting for her life before ultimately succumbing to the injuries
caused by the blows from Belmontes. Record 3. The jury also heard
that this savage murder was committed solely to prevent
interference with a burglary that netted Belmontes $100 he used to
buy beer and drugs for the night. McConnell suffered, and it was
clearly needless.
Some of the error below may be
traced to confusion about the appropriate standard and burden of
proof. While the Court of Appeals quoted the pertinent language
from Strickland, that court elsewhere suggested it might
have applied something different. In explaining its prejudice
determination, the Ninth Circuit concluded that “[t]he aggravating
evidence, even with the addition of evidence that Belmontes
murdered Howard, is not strong enough, in light of the mitigating
evidence that could have been adduced, to rule out a sentence of
life in prison.” Belmontes, 529 F. 3d, at 875. But
Strickland does not require the State to “rule out” a
sentence of life in prison to prevail. Rather, Strickland
places the burden on the defendant, not the State, to show a
“reasonable probability” that the result would have been different.
466 U. S., at 694. Under a proper application of the
Strickland standard, Belmontes cannot carry this
burden.
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—“the most powerful
imaginable aggravating evidence,” as Judge Levi put it,
Belmontes, S-89–0736, App. to Pet. for Cert. 183a—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.
The petition for certiorari and
the motion for leave to proceed in forma pauperis are
granted. The judgment of the Court of Appeals for the Ninth Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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