Turner v. Wong (641 F. Supp. 2d 1010, 2009)

MEMORANDUM DECISION AND ORDER FOLLOWING EVIDENTIARY HEARING GRANTING PETITION FOR WRIT OF HABEAS CORPUS

LAWRENCE J. O’NEILL, District Judge.

Table of Contents

I. Factual Background and Trial Proceedings...................................1014

II. Post-Trial Procedural History..............................................1016

III. Standard of Review........................................................1017

IV. Alleged Ineffective Assistance of Counsel During Penalty Proceedings (Claim 5).....................................................................1018

A. Summary of the Relevant Facts.........................................1018

1. Guilt Phase Trial Proceedings.......................................1018

a. Mr. Hallford’s Guilt Phase Opening Statement....................1018

b. Mr. Ellery’s Guilt Phase Opening Statement......................1019

c. Guilt Phase Testimony of Gregory Mayo..........................1019

d. Guilt Phase Testimony of Augusti Albritton.......................1020

e. Guilt Phase Testimony of Detective Craig Wright..................1020

f. Guilt Phase Testimony of Detective Henry Strength...............1021

g. Guilt Phase Testimony of Detective John Harris...................1021

h. Guilt Phase Testimony of Pathologist Malcolm Murdoch, M.D........1022

i. Guilt Phase Testimony of Rita Dienst............................1022

j. Guilt Phase Testimony of Turner................................1022

k. Guilt Phase Testimony of Bartender Jay Bradshaw................1026

l. Guilt Phase Testimony of Phillip M. Hamm, Jr., Ph.D...............1026

m. Guilt Phase Testimony of Lee Stewart Coleman, M.D...............1029

n. Mr. Hallford’s Guilt Phase Summation ...........................1029

o. Mr. Ellery’s Guilt Phase Summation.............................1030

p. Mr. Hallford’s Guilt Phase Rebuttal..............................1031

q. Guilt Phase Deliberations.......................................1031

2. Penalty Phase Trial Proceedings.....................................1031

a. Penalty Phase Testimony of Dr. Murdoch.........................1031

b. Penalty Phase Testimony of Detective Strength...................1032

c. Penalty Phase Testimony of Ruth Turner.........................1032

d. Penalty Phase Testimony of Lisa Haynes.........................1032

e. Penalty Phase Testimony of Elijah Barber........................1032

f. Penalty Phase Testimony of Lewis Coleman ......................1033

g. Penalty Phase Testimony of Kathryn Carter......................1033

h. Penalty Phase Jury Instructions.................................1033

i. Mr. Hallford’s Penalty Phase Summation.........................1033

j. Mr. Ellery’s Penalty Phase Summation...........................1034

k. Mr. Hallford’s Penalty Phase Rebuttal...........................1035

l. Penalty Phase Deliberations....................................1035

3. Turner’s motion for modification of the death verdict...................1035

4. Evidence Presented at the Evidentiary Hearing.......................1036

a. Turner Family and Friend Witnesses............................1037

(1) Evelyn Turner............................................1037

(2) Elizabeth Turner .........................................1041

(3) Oweida Doxey............................................1044

(4) Ruth Evelyn Turner.......................................1046

(5) Yvonne Turner Haynes....................................1052

(6) Thaddaeus Jefferson Turner................................1053

(7) Pam Butler ..............................................1053

(8) Kathryn Carter Senegal-Priee..............................1054

(9) Lewis Coleman...........................................1056

(10) Sandra Goodman..........................................1057

(11) March 31,1980 Probation Report ...........................1057

b. School and Academic Records...................................1058

c. Witnesses Acquainted with Mr. Savage...........................1058

(1) Betty Means Tavares......................................1058

(2) Joyce Slaton..............................................1059

d. Investigating Officers..........................................1060

(1) Detective Strength........................................1060

(2) Detective Jill Mayer.......................................1061

e. Expert Witnesses .............................................1061

(1) Trevor D. Glenn, M.D......................................1061

(2) Ernest D. Lykissa, Ph.D...................................1062

(3) Dean Warden ............................................1062

(4) Stephen M. Pittel, Ph.D....................................1062

(5) Phillip M. Hamm Jr., Ph.D.................................1064

(6) Howard B. Terrell, M.D....................................1070

(7) Reese T. Jones, M.D.......................................1079

f. Trial Defense Team Witnesses..................................1083

(1) John W. Ellery...........................................1083

(2) William Ray Brown .......................................1089

(3) Kenneth Roberts..........................................1091

g. State Appellate and Post-Conviction Attorney Witnesses...........1091

(1) Dennis A. Fischer.........................................1091

(2) John M. Bishop...........................................1091

(3) Douglas W. Otto..........................................1091

h. (Former) District Attorney Patrick Hallford......................1092

B. Analysis .............................................................1093

1. Performance......................................................1093

a. Childhood Abuse and Dysfunctional Family Dynamics..............1094

b. Borderline Intellectual Capabilities..............................1102

c. Drug Abuse and Drug Abuse History............................1103

d. Mr. Savage’s Sexual Practices...................................1105

2. Prejudice.........................................................1108

V. Order....................................................................1118

Appendix......................................................................1118

I. Factual Background and Trial Proceedings

This case involves the stabbing murder of Roy Savage on April 14, 1984. Mr. Savage was stabbed 40 to 50 times in a gruesomely bloody attack at his Merced home. Numerous household items, including a television, together with Mr. Savage’s late model Cadillac, were missing from the house when sheriffs deputies commenced their investigation. In addition, two telephone cords in the house had been cut. Petitioner Thaddaeus L. Turner (“Turner”), 22 years old at the time, admitted the act of stabbing Mr. Savage, taking a television from Mr. Savage’s home, and driving away in Mr. Savage’s car. He denied harboring the intent to steal the television or car prior to the fatal attack, and denied cutting telephone cords or taking any other possessions. He claimed the stabbing followed Mr. Savage’s unwanted sexual advances. When Turner was apprehended by a California Highway Patrol officer in Fresno, two days after Mr. Savage was killed (April 16, 1984), he was driving Mr. Savage’s car. The missing television set was in the trunk and Mr. Savage’s wallet was on the console of the car. None of the other household items said to have been missing from Mr. Savage’s house was recovered.

Besides claiming to have been sexually attacked by Mr. Savage, Turner maintains he was an habitual PCP and marijuana user, and that he used both drugs, plus methamphetamine and alcohol, on the day of the offense. In offers of proof supporting his motion for an evidentiary hearing, and at the evidentiary hearing the Court ultimately conducted, he also presented considerable evidence of his miserable and sad childhood during which he was persistently physically abused and verbally ridiculed by his alcoholic father, while virtually neglected by his depressed, despondent mother. From the time Turner was in grade school, his father whipped him with a leather razor strap kept in the garage, “thumped” him on all parts of his head, and socked him in the stomach with karate punches. Turner’s crying during these discipline sessions did not induce his father to relent, but to “discipline” more vigorously. The parents, who fought bitterly, violently, and physically with one another eventually separated and terminated their marriage, but even after the separation, the father continued thumping Turner until he was in junior high school.

Turner suffered two prior felony convictions, for robbery and for receiving stolen property, both of which he admitted. (Only the October 6, 1982 conviction for receiving stolen property was charged and admitted as an enhancement to the indictment. RT-5: 998-99.) His trial attorney was Merced County Public Defender John Ellery. The prosecutor was Merced District Attorney Patrick Hallford. The trial evidence gave conflicting portraits of Mr. Savage. On one hand, he was a highly respected administrator and mathematics instructor at Merced Community College, who also served as director of the College Educational Opportunity Programs and Services. In that capacity, he helped many young people pursue an education and obtain jobs. He also owned several rental houses. Accordingly, it was not unusual for him to hire young people to help with landscaping and clean up tasks for these rental houses. On the other hand, as Mr. Ellery tried to bring out, he engaged in homosexual activities and cultivated homosexual relations. This inference was supported by testimony that Mr. Savage sometimes went to San Francisco for week-end stays and did not talk about what he did. Mr. Ellery also called a former bartender who worked at a known “gay” bar in Fresno. The bartender informed police that Mr. Savage was a frequent customer at the bar. Turner testified that he met Mr. Savage at a bus stop just outside this gay bar while he (Turner) was on his way home from his construction job. Mr. Savage offered Turner work performing landscaping tasks on his (Mr. Savage’s) house (residence). Turner accepted and Mr. Savage arranged to drive to Fresno to pick Turner up and return to Merced, a distance of approximately 60 miles, each way, the ensuing weekend. Also pertinent to the case is the difference in relative size between Mr. Savage, a large man said to be six feet, three inches, weighing between 200 and 300 pounds, and Turner, who was 5 feet 9 inches tall and weighed 140 to 150 pounds.

The facts leading up to the fatal stabbing of Mr. Savage were provided during guilt phase proceedings by Turner’s testimony. Defense retained psychologist, Phillip M. Hamm, Jr., Ph.D., also testified about the story Turner recounted to him for purposes of revealing Turner’s mental state at the time of the killing. Mr. Hall-ford countered by painting a picture of Turner as an opportunistic, cold-blooded killer motivated by the desire to steal from his victim. While Mr. Hallford argued Turner’s story of Mr. Savage’s unwanted sexual overtures was simply unbelievable, he maintained that to the extent Mr. Savage did express a sexual interest, Turner exploited the situation to gain access to Mr. Savage’s home and cultivate Mr. Savage’s trust. Under the prosecution theory, Turner formulated a premeditated plan to kill Mr. Savage so he could realize his goal of acquiring Mr. Savage’s property.

Trial commenced on November 6, 1984, with jury selection complete by November 13, 1984. Opening statements and presentation of evidence at the guilt phase proceeded on November 14, 1984. Both sides rested on November 20, 1984, with jury-deliberations commencing the same day. Deliberations continued for 35 minutes on Wednesday, November 21, 1984, until the jurors notified the trial court they had reached a verdict. They returned a guilty verdict on the first degree murder change and found true the robbery-murder special circumstances. Although Turner also was charged with a second felony count of robbery, the jurors failed to complete the verdict form or return a verdict on this charge until the following Tuesday, November 27, 1984. RT-8: 1712-15; 1758-67.

Penalty proceedings commenced and were completed on the same day (November 27, 1984). For the People, Mr. Hall-ford called the pathologist who conducted the autopsy on Mr. Savage to describe the depth of the knife wounds Turner inflicted as part of the jury’s consideration of the circumstances of the crime sentencing factor. Mr. Ellery called one of the investigating detectives to bring a sense of uncertainty to bear on the jurors that Turner in fact harbored the requisite intent to steal prior to the fatal stabbing because he didn’t take the television remote control device for the stolen television. He also called Turner’s mother, a half-sister, a family friend, a cousin, and a “job developer” to describe Turner’s caring, kind, nonviolent nature, and reliability as an employee.

II. Post-Trial Procedural History

Following the death verdict on November 27, 1984, Turner moved the trial court for modification of that verdict, which was heard and denied on December 21, 1984. His direct appeal affirming the conviction and death sentence was filed April 26, 1990. People v. Turner, 50 Cal.3d 668, 268 Cal.Rptr. 706, 789 P.2d 887 (1990). He commenced this federal proceeding on April 1, 1991, by filing a pro se petition, requesting a stay of execution, and applying for appointment of counsel. Following the appointment of federal counsel, he filed an amended petition containing a number of unexhausted claims on March 8, 1993. The Court ordered Turner to exhaust his state remedies by order entered May 25, 1993. His subsequently filed state petition for habeas corpus was denied on March 25, 1996. He thereafter filed his amended federal petition on April 29, 1996. This is the operative petition in the case (hereafter the “Petition”).

In 1996 and 1997, the Court addressed the arguments of Respondent Robert K. Wong, as Acting Warden of San Quentin State Prison (the ‘Warden”), that a number of claims in the Petition were procedurally defaulted. Following a series of orders on the subject, the Court issued an order on June 27, 1997, denying three claims on the merits and dismissing eleven claims as procedurally barred. Turner v. Calderon, 970 F.Supp. 781 (E.D.Cal.1997). On September 23, 1997, following the issuance of Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997), in which the Ninth Circuit held that California state procedural defaults of the kind at issue in Turner’s case were inadequate to bar federal review, the Court denied on the merits all fourteen of the previously resolved claims.

After further merits briefing of the Petition, on April 27, 1999, the Court issued a Memorandum Decision and Order denying Turner’s request for an evidentiary hearing as to four claims, including Claim 5, alleging ineffective assistance of counsel at Turner’s penalty phase. The April 27, 1999 Order additionally denied each of the four claims on the merits. On May 18, 1999, the Court denied the remaining, record-based claims on the merits and judgment was issued forthwith. Turner appealed to the United States Court of Appeals for the Ninth Circuit and the appellate court reversed this Court with respect to the denial of an evidentiary hearing as to Claim 5. Turner v. Calderon, 281 F.3d 851 (9th Cir.2002). Following the remand, this Court, by the Honorable Robert E. Coyle, conducted an evidentiary hearing as to Claim 5 on July 22, 23, 24, 25, and 29, 2003, focusing on the limited issues of whether Mr. Ellery had a reasonable strategy justifying not presenting the mitigation evidence Turner identified as available at the time of trial and whether that evidence would have been compelling enough to have altered the outcome of the penalty verdict.

III. Standard of Review

Under controlling United States Supreme Court precedent, it is the filing of “an application for habeas relief seeking adjudication on the merits of petitioner’s claims” that triggers applicability of the Anti-terrorism and Effective Death Penalty Act of April 24, 1996 (“AEDPA”). Woodford v. Garceau, 538 U.S. 202, 207, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Since Turner’s March 8, 1993 petition, which constitutes a substantive pleading seeking adjudication on the merits, was filed before the enactment of AEDPA, preAEDPA law, under former 28 U.S.C. § 2254, is controlling. Id.

Former 28 U.S.C. § 2254(d) directs that written state findings are presumed correct:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceedings; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole con-eludes that such factual determination is not fairly supported by the record.

Both mixed questions of law and fact and pure questions of law are reviewed de novo. See Thompson v. Borg, 74 F.3d 1571, 1573 (9th Cir.1996). Under preAEDPA law, a claim alleging ineffective assistance of counsel is considered a mixed question of law and fact, subject to de novo review. Correll v. Ryan, 539 F.3d 938, 942 (9th Cir.2008).

IY. Alleged Ineffective Assistance of Counsel During Penalty Proceedings (Claim 5)

In reaching the ultimate determination as to Mr. Ellery’s alleged constitutionally incompetent representation, the Court must review the evidence adduced at the evidentiary hearing as well as pertinent trial evidence (guilt and penalty), and the argument of counsel (guilt and penalty) to assess the relative impact between what was presented during Turner’s penalty proceedings and what Turner alleges could have been presented. Evidence submitted by the Warden also must be factored into the mix. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding that assessing prejudice requires re-evaluating the prosecution evidence against the totality of available defense evidence).

A. Summary of the Relevant Facts

Although the Court previously has set out a comprehensive summary of trial proceedings and post-conviction declarations presented on federal habeas in prior orders, see June 27, 1997 Order at 970 F.Supp. pp. 781-88; April 27, 1999 Order at pp. 8-36, selected trial proceedings (including some not previously summarized) are summarized (and in some cases re-summarized) to give context to the evidentiary hearing testimony and relevant documentary evidence.

1. Guilt Phase Trial Proceedings

The relevant guilt phase trial proceedings include Mr. Ellery’s opening and closing arguments, Mr. Hallford’s opening, closing, and rebuttal arguments, selected guilt phase testimony, and guilt phase deliberations. Guilt phase proceedings commenced with Mr. Hallford’s opening statement on Wednesday, November 14, 1984, continuing through November 15, 16, and 20, 1984. Guilt phase deliberations commenced at 3:04 p.m. on Tuesday, November 20, 1984, and were complete the next day on Wednesday, November 21, 1984 at 10:34 a.m. RT-8: 1704,1712.

a. Mr. Hallford’s Guilt Phase Opening Statement

Mr. Hallford identified Mr. Savage’s professional responsibilities at Merced College and the last two people to have seen him alive on Saturday April 14, 1984, in the company of Turner. RT-5: 999-1000. He described what Greg Mayo observed when he came to Mr. Savage’s home on the following Monday. The body was “bloody,” the scene at the house was “gory.” There was blood on the couch, the ceiling, the curtains, the sliding glass doors, and the enclosed back porch all the way to the back door. Id.: 1001-02. There was blood on the back screen door and there were drag marks where the body had been dragged back away from the door. The body was covered with towels. Sheriffs investigators also observed blood “going down the street, indicating that the Defendant, after he had done this gory deed, had dropped blood when he had left.” Mr. Savage’s Cadillac, television, a stereo and some other items were missing from the home. When Turner was arrested, he was driving the missing Cadillac. Id.: 1002. The television was in the car and both the car and the television had blood on them which matched Mr. Savage’s blood. The buck knife in Turner’s possession when he was arrested also had blood on it which matched Mr. Savage’s blood type. Turner’s shoes matched a bloody print left in the house. Mr. Hallford explained that two telephone cords in the house had been cut, and neither was bloody, “indicating the Defendant had planned this violence, indicating the premeditation.” Id.: 1003.

b. Mr. Ellery’s Guilt Phase Opening Statement

After successfully resisting a prosecution in limine motion to preclude evidence of Mr. Savage’s homosexuality, Mr. Ellery explained the circumstances of the initial interactions between Mr. Savage and Turner in terms that would suggest Mr. Savage’s sexual interest in Turner. Mr. Savage initiated the contact with Turner in front of a “homosexual” bar in Fresno about a week previous to the homicide. He placed several calls to Turner “with the stated purpose of inviting the Defendant to come to Merced and work in Mr. Savage’s yard.” RT-5: 1004-05. In order to accomplish this, Mr. Savage had to make a one hour drive from Merced to Fresno to collect Turner and then drive back again for another hour. The work to be done in the yard was overwhelming and Turner made a mild protest. “Mr. Savage was not really terribly concerned about getting work done.” Id.: 1005. After less than an hour in the yard, Mr. Savage and Turner spent the day “going to various friends of Mr. Savage, or seeing people that Mr. Savage knew ... they arranged a barter system as to how the Defendant was to be paid for his labors____ They spent the good part of the day also admiring Mr. Savage’s home, influential area, listening to the sound machine — the sound equipment, the stereo equipment, maybe the television.” Id.: 1005-06. After carrying out the barter agreement (purchasing clothes for Turner) they returned to Mr. Savage’s home rather than driving back to Fresno to take Turner home. “[T]he evidence will show that some time during the evening the Defendant did indeed kill Mr. Savage.” Id.: 1006. As to whether the killing was or was not a crime, the jurors were told to question why Mr. Savage did all these things. Also, Mr. Ellery asked the jury to take note of the fact that Mr. Savage’s head was placed upon a pillow; his “body was covered with a variety of pillow cases and towels and things like that,” and that there may have been an attempt to clean some of the blood off, and that there was blood “spread throughout may portions of the house.” He concluded by suggesting these erratic acts had a bearing on “the mental elements of this event.” Id.: 1006-07.

c. Guilt Phase Testimony of Gregory Mayo

Greg Mayo, Mr. Savage’s second cousin, discovered the bloody crime scene in the mid-afternoon on Monday, April 16, 1984. He came to the house to help Mr. Savage perform maintenance work on his rental homes, as he often did. Occasionally Mr. Savage also hired students to perform maintenance work. RT-5: 1009. Mr. Mayo had arranged to stop by Mr. Savage’s house on this day (April 16, 1984) the preceding Friday, April 13, 1984, when he and Mr. Savage ate dinner together. Id.: 1011, 1039-40. He approached the house from the backyard and observed that the screen door to the enclosed patio was swung wide open and full of blood. Id.: 1012. On cross examination he further described the screen door as having been cut. Id.: 1047. Upon discovery of the crime scene, rather than use a neighbor’s telephone, Mr. Mayo drove across town and called authorities from a friend’s house. Id.: 1013. This was after he tried to use the telephone in Mr. Savage’s family room, but found it was dead. Id.: 1049. He identified the items missing from Mr. Savage’s house, including a television set removed from the upstairs master bedroom, a full-size stereo receiver, two 10-by-12-by-25 inch speakers, a tape cassette, miniature speakers, a second stereo system, two glass end tables with two foot-high bases, several statutes in the one to one and a half foot high range, and most of the clothes from Mr. Savage’s closet, including three full suits Mr. Mayo specifically described. Id.: 1014-16, 1065-70, 1079. When Mr. Mayo visited Mr. Savage on Friday, the closet was really compacted with suits, but, “[a]lmost empty” when he came to inventory missing items with authorities. Id.: 1070. Mr. Mayo also initially reported that two rings and a watch Mr. Savage customarily wore were missing. Id.: 1051.

Mr. Mayo was aware that sometimes Mr. Savage went out of town on weekends. He understood that Mr. Savage went to the Bay Area on these occasions. Mr. Savage did not explain exactly where he was going, who he was visiting, or what he was doing during these trips. This was in contrast to his trips to visit family members, when Mr. Savage did specifically tell Mr. Mayo where he was going and who he was visiting. Id.: 1045-47. Mr. Mayo testified that his cousin was approximately six feet, three inches tall and weighed approximately 200 pounds. Id.: 1071.

At some point when Mr. Mayo was in the house after the homicide, he found a telephone index in the family room, which he turned over to investigating officers. RT-7: 1458-59.

d. Guilt Phase Testimony of Augusti Albritton

In April of 1984, Mr. Albritton was the Assistant Director of Educational Opportunity Programs and Services at Merced Community College. RT-5: 1087. Roy Savage was the director. Mr. Savage also taught a math class and was a counselor. Mr. Albritton and Mr. Savage were friends. Mr. Savage was, “Very, very well thought of.” Id.: 1088. Mr. Savage came to Mr. Albritton’s house on Saturday, April 14, 1984 to exchange Mr. Albritton’s truck, which Mr. Savage had borrowed, for his (Mr. Savage’s) Cadillac, which Mr. Albritton was using while Mr. Savage had the truck. Mr. Savage often borrowed Mr. Albritton’s truck to haul materials used in his (Mr. Savage’s) rentals. Id.: 1091. Turner was with Mr. Savage during this visit/vehicle exchange. Mr. Albritton believed Turner was one of the many young people Mr. Savage was helping with getting an education. He described Mr. Savage as a man who loved to eat and suffered from a “weight problem.” Id.: 1092.

e. Guilt Phase Testimony of Detective Craig Wright

Merced County Sheriff Detective Wright described the blood stains and splatters throughout Mr. Savage’s house onto the covered patio to the backyard, all captured on a video tape that was introduced in evidence. RT-5: 1103, 1106. Everything was splattered with blood. There was blood in the front lobby (foyer) and blood on the front door knob. Id.: 1106. Blood stains were seen on the furniture, walls, drapes, floor, house plants, doors, and on the linens covering the Mr. Savage’s body. Id.: 1162-1165. Detective Wright described the scene as the pathologist, Dr. Malcolm Murdoch, and various deputies inspected the body, front and back. There were “large gaping open wounds to the check [sic] and neck area” as well as to the chest. Id.: 1166-1167. His head was resting partially on a pillow. RT-6: 1210-11. The part of his head resting on this pillow did not appear to have been bleeding. Id.: 1221.

The canvass of the living room indicated that some furniture, which made indentations in the carpet, had been recently moved. RT-5: 1168-1169. Mr. Savage’s body was lying in the covered patio “under some towels.” Id.: 1107. A cabinet on the patio appeared to have been forced open by bending the door. There was a pool of blood below the door. The blood on the floor appeared to have drag marks. Id.: 1109. Mr. Savage’s body appeared to have been dragged over the carpet remnants on the patio floor. RT-6: 1287.

Detective Wright observed three telephones in the house, one in the family room downstairs, one in the master bedroom upstairs, and one in the kitchen downstairs. The cords on the family room and master bedroom telephones had been cut. RT-6: 1185-86. Later in the prosecution case, Detective Wright testified that two vials of blood were taken from Turner on April 20, 1984. RT-6: 1204. Later still, Mr. Savage’s rings and watch were found under carpet remnants that were beneath his body. Id.: 1283.

f. Guilt Phase Testimony of Detective Henry Strength

Lead Detective Henry Strength testified that the kitchen telephone cord had not been cut. Officers realized the kitchen telephone existed when it rang during the investigation. RT-6: 1278. He observed a pillow partially under Mr. Savage’s head. The pillow did not have blood on it; it was not under a part of Mr. Savage’s head that had been bleeding. Id.: 1279. Mr. Savage’s rings and watch were found under Mr. Savage’s body when the investigation began. Id.: 1281. On the patio, the blood stains appeared to have been wiped up or partially wiped up. He testified to having observed drag marks which were partially wiped up. Id.: 1293.

After Turner’s arrest, when Detective Strength took Turner’s clothes, he observed no defense wounds on his body. He did observe “some small scratches” on one of Turner’s arms. Id.: 1281. Regarding the recovery of the items from Mr. Savage’s house other than the Cadillac and the television, Detective Strength testified that a search of Turner’s house came up empty. Id.: 1292. Detective Strength also seized items from the bar at Mr. Savage’s house from which finger prints other than Mr. Savage’s and Turner’s were discovered. Id.: 1307, 1309; RT-7: 1461. In addition, he authenticated Mr. Savage’s telephone index which Mr. Mayo turned over to authorities so it could be admitted into evidence. RT-6: 1303.

At the very end of his rebuttal case, Mr. Hallford elicited from Detective Strength the substance of Turner’s statements to the Merced authorities (Detective Strength and Detective Jill Mayer). -He told the detectives he did not know Roy Savage and that he had not been to Merced. RT-8: 1624. Turner further stated he couldn’t remember where he obtained Mr. Savage’s Cadillac and he didn’t know where he was going when he initially was stopped in Fresno by a California Highway Patrol officer. Id.: 1625.

g. Guilt Phase Testimony of Detective John Harris

After the family of Mr. Savage changed the locks on the door of the house, they found and reported to Detective Harris a broken key found in one of the doors. RT-7: 1467. This report, however, was made a week or more after the investigation. Id.: 1468.

h.Guilt Phase Testimony of Pathologist Malcolm Murdoch, M.D.

Dr. Murdoch conducted the autopsy on Mr. Savage’s body. He also examined Mr. Savage’s body at the scene. RT-5: 1130. Mr. Savage’s body was lying face down on the back patio. The body was clothed in a shirt and Levis which were closed and belted. Id.: 1131-32. Multiple stab wounds were inflicted on his body, including defensive wounds on his hands, cuts to his arms, back, chest, and face. Id.: 1132-34. Some cuts were slashing wounds and some were penetrating wounds. Id.: 1138. Dr. Murdoch testified he counted a total of 44 wounds, but because two of those were V-shaped, which may been caused by two separate stabs (each), there may have been 46 wounds. There was a deep slashing wound down across the jaw, a single wound on the left neck, were nine wounds on the anterior portion of the chest, four wounds on the abdomen, three on the anterior leg, seven on the left arm, one superficial wound on the left hand, a large deep cut in the right thumb, almost removing it, a deep wound in the palm of left hand, a deep laceration on the right middle finder, three in the right hand, one on the left hand, four on the right arm, and seven on the back, all below the shoulder blades, for a total of 44 stab wounds, 46 if the V-shaped wounds counted as two rather than one. Id.: 1140-42. At the culmination of cross examination, he clarified that his earlier testimony about the number of wounds overlooked four additional wounds, two on each of Mr. Savage’s sides. Id.: 1150-51. This brought the total number of stab wounds to 50 (counting the two V-shaped wounds as two wounds each).

The autopsy revealed semen at the tip of Mr. Savage’s penis indicating he ejaculated either shortly before he was killed or at the time he died. Dr. Murdoch explained that ejaculation at the time of death could occur. Id.: 1146. On cross examination, Mr. Ellery elicited that the occurrence of semen in this case could have been consistent with sexual activity. He also elicited that Mr. Savage’s sphincter was looser than normal. Id.: 1147.

Dr. Murdoch identified a stab wound to the upper abdomen, which passed through the diaphragm and cut a hole in the right ventricle of the heart as being the cause of death. Id.: 1148 (cross examination), 1155 (re-direct examination). Mr. Ellery also elicited that four of the wounds to Mr. Savage’s back went through the chest wall into the lungs and that these wounds likely preceded the wounds to the lower abdomen, because chest wall wounds bled more. Id.: 1148-49. Finally, Mr. Hallford clarified from Dr. Murdoch that Mr. Savage would have able to move after having been stabbed, even with the fatal blow that cut into his heart: “None of these, none of these stab wounds would prevent him from moving.” Id.: 1155-56.

i. Guilt Phase Testimony of Rita Dienst

Ms. Dienst was the office manager of Cross Construction, where Turner worked. She testified he didn’t have transportation, so he took the bus to work. RT-7: 1361. Turner had a good reputation at work and was well liked. He worked on Monday, the day of his arrest. Id.: 1362.

j. Guilt Phase Testimony of Turner

Turner testified at the guilt phase proceedings during the defense case in chief. At the time of the crime, he lived with his mother and younger teenage sister, Oweida, in Fresno. Mr. Ellery elicited from Turner that he was incarcerated from June 1982 through September 1983 for receiving stolen property. Prior to that, Turner spent time at the California Youth Authority (hereafter “CYA”) for robbery. He explained that both convictions were obtained without trial on his pleas of guilty. RT-6: 1313-14. No questions were asked to explain Turner’s limited role in the prior robbery conviction. Upon his release from prison in September 1983, he began working for Cross Construction, starting out as a carpenter helper and moving up to a laborer. Id.: 1315. Turner had no car and usually rode to work with a friend or used the bus. Id.: 1316. Turner met Mr. Savage at a bus stop in Fresno near a homosexual bar. Id.: 1317. Mr. Savage introduced himself to Turner and offered Turner a ride. Turner accepted and Mr. Savage drove Turner to his (Turner’s) bank so he could cash his paycheck. Id.: 1319-20. Mr. Savage also offered Turner a job working around his (Mr. Savage’s) house. Id.: 1322. The compensation was to be $20 to $30 depending upon how much work Turner completed. RT-7: 1411 (cross examination). Turner explained that he didn’t have a car, so Mr. Savage offered to come to Fresno to collect him. RT-6: 1323-25. Mr. Savage later called Turner and made arrangements to pick him up near his home in Fresno. Id.: 1329-30. Turner had never been to Merced before and was not familiar with the area. Id.: 1331-32. Turner let Mr. Savage know he used drugs, notably, “sherm” (meaning marijuana and PCP) and speed. Turner used both drugs the morning Mr. Savage collected him. Id.: 1334. During cross examination, he clarified that he smoked half a sherm before Mr. Savage came to collect him in Fresno. RT-7: 1410. Upon arrival in Merced, Turner started working in the backyard. Mr. Savage interrupted him and offered him some yard shoes and a work shirt. Turner went upstairs to Mr. Savage’s bedroom to obtain these items. RT-6: 1335-38. Turner found that the work needed in the yards was overwhelming. He didn’t work long in the backyard before he walked around to the front yard to do something else. Id.: 1338. See also RT-7: 1413 (Turner figured there was too much work for him to complete alone.) He took a break while working and smoked some PCP. There was a lot to do in the front yard as well. RT-6: 1339. On cross examination, he clarified that at this point he smoked the other half of the sherm he started before Mr. Savage came to pick him up. RT-7: 1415. Mr. Savage offered Turner some orange juice. After that, Turner did no more yard work. Mr. Savage didn’t seem to mind. Turner told him there was too much work for one person to complete. RT-6: 1340-41. Turner and Mr. Savage talked about Turner — his drug use and his prison time. Then, at about noon time, Mr. Savage decided to go to Gottschalks (department store) to take a television in for repairs. Id.: 1342-46. After that, they drove to the home of a friend of Mr. Savage, Mr. Augusti Albritton. Mr. Savage talked with Mrs. Albritton and then Mr. Albritton for about 30 minutes. While there, Mr. Savage traded Mr. Albritton’s pick up truck (which Mr. Savage had borrowed) for his (Mr. Savage’s) Cadillac. Id.: 1346-50. Mr. Savage and Turner stopped at a Burger King, where Mr. Savage purchased Turner some lunch, and then returned to Mr. Savage’s house. Id.: 1350-51. They listened to music and Mr. Savage gave Turner a complete tour of his spacious house. Id.: 1351-56. Prior to that, Turner replaced all the garden tools he had taken out of the garage and cleaned up the work he had done. RT-7: 1364-65. While they were talking, they consumed a fifth of brandy. Turner consumed three or four glasses. Id.: 1366. They discussed compensation for Turner’s work. Mr. Savage told him he would buy Turner a pair of pants and shirt at Gottschalks rather than given him money so he (Turner) wouldn’t use the money to purchase drugs. Id.: 1367. At Gottschalks, Mr. Savage conversed with a woman customer, who had two little girls with her, as well as with the sales clerk. Id.: 1370-73.

After completing the purchase, Mr. Savage and Turner returned to Mr. Savage’s home. Instead of driving to Fresno, Mr. Savage then placed a telephone call in the kitchen and prepared dinner for himself. Turner declined dinner. Id.: 1373, 1375. At one point, the telephone rang, but Mr. Savage, who was right next to the ringing kitchen telephone did not answer it. Id.: 1376. After Mr. Savage finished eating, he went upstairs and Turner waited to go back to Fresno. Mr. Savage came downstairs in a T-shirt and shorts, put his hand on Turner’s shoulder and said, ‘“Let’s go to bed.’” Id.: 1378. Turner pushed him. Then Mr. Savage “came at” Turner, chased him (Turner) around the house, and hit him with something wooden on the back of the head. Turner kicked Mr. Savage and ran out of the house. Id.: 1378-79.

From this point, Turner walked to a local store, smoking another “stick” of PCP on the way, and once at the store, purchased a pack of cigarettes. Id.: 1379-81. He clarified on cross examination that he smoked the entire sherm. Id.: 1416. After making his purchase of cigarettes, Turner proceeded to light one when he saw Mr. Savage driving up in his car. Mr. Savage apologized; Turner asked to go back to Mr. Savage’s house to retrieve his belongings and then go home. Mr. Savage agreed. Id.: 1381. By this time, Turner was pretty high. Id.: 1416 (cross examination). When Turner and Mr. Savage arrived back at Mr. Savage’s house, Mr. Savage went upstairs. Turner waited downstairs. When Mr. Savage came down, he asked Turner if he wanted a drink and if he would tell anyone about the sexual proposition. Id.: 1382. Turner responded he was going to tell somebody: “ You brung me down here, you going to try something like this.’ ” Mr. Savage became upset and expressed that he didn’t want Turner to tell anyone, and then reiterated that he wanted Turner to go to bed with him. Turner repeatedly refused. He explained to the jury that although he had been in prison where homosexual activities had taken place, he had no sexual taste for men. Id.: 1383. He testified he did not engage in any homosexual activities while in prison. Returning to the events leading to the homicide, Turner continued that the discussion about sex between Mr. Savage and Turner persisted. Turner offered Mr. Savage a “Spanish fly” so he (Mr. Savage) could have sex at “some girl’s house.” Mr. Savage replied he didn’t want sex with a girl; he wanted sex with Turner. Id.; 1384. The arguing continued. Turner was sitting at the end of the table in the family room; Mr. Savage came up behind him and grabbed him by his “breast, and arm and neck,” choking him. They struggled and fell over the back of the couch with Mr. Savage “leaning on top” of Turner. Id.: 1386. Mr. Savage had his arm across Turner’s neck; Turner removed his knife from his back pocket and tried to stab Mr. Savage in the shoulder, but missed and stabbed him in the neck instead. Mr. Savage was in front and on top of Turner at this point. Turner “flipped” Mr. Savage on the couch and dropped his knife in the process. Mr. Savage grabbed a fireplace tool and swung it at Turner. Mr. Savage missed, dropped the tool and Turner picked it up. Turner then picked up his knife and Mr. Savage came from behind him again. Id.: 1387. At some point in the struggle, Mr. Savage fell on the knife; blood started “gushing out.” Turner was scared and started hollering at Mr. Savage. Turner had the fireplace tool in one hand, and the knife in the other. Mr. Savage was coming at him; Turner was “poking” at Mr. Savage, telling Mr. Savage to get back. Mr. Savage knocked the knife out of Turner’s hands; Turner picked it up. Mr. Savage grabbed Turner by the wrist; Turner stabbed him some more and ran out the patio door. Id.: 1388. On cross examination, Mr. Hall-ford tried to elicit that while Mr. Savage was running away from Turner, Turner was stabbing Mr. Savage in the back. Turner vehemently denied this, insisting that he was “poking” Mr. Savage with the knife as Mr. Savage was coming at him (Turner). He did not recall stabbing Mr. Savage in the neck, back, and thigh. Id.: 1421-23. Then Turner testified that Mr. Savage ran out to the enclosed patio and that he (Turner) ran up the stairs, threw the fireplace “stick” in one of the rooms, grabbed his coat from the master bedroom, and took the television from the master bedroom to throw at Mr. Savage in case he came upstairs. When Turner went downstairs, he observed Mr. Savage lying on the patio. While he was lying there, Turner removed his watch and rings, and checked his pulse. Id.: 1389. Turner went to get a drink from the bar, came back and checked Mr. Savage’s pulse again. Turner realized Mr. Savage was dead. Id.: 1390. Turner went to the daughter’s bedroom and retrieved a white blanket to cover Mr. Savage’s body. Turner covered Mr. Savage because that’s what he had seen on television Id.: 1390-91. On cross examination he stated that he covered the body with a blanket, not towels as authorities described it when they came onto the scene. Id.: 1449. Turner denied cutting the telephone cords. He thought he would take the rings and watch at first, but decided not to because he wouldn’t want anybody to “rob” him if he were dead, so he didn’t. Id.: 1392-93. Turner did take the television and Mr. Savage’s car keys. The car was in front of the walkway in the front yard. Turner did nothing to clean up the blood. He just left. Id.: 1394. On cross examination he confirmed that he left Mr. Savage’s body where it was when he came downstairs, that is, he did not move it or drag it across the enclosed patio. Id.: 1420. On recross examination, he explained that when he left the house, Mr. Savage’s body was near the door to the back yard, not where the video taken by Sheriffs detectives depicted it. He also confirmed that when he covered the body, he used a blanket, not multiple towels. Id.: 1447.

Back in Fresno, Turner parked the car in front of some apartments near his house. At that time, he put the television in the trunk of the car. Id.: 1396. Then Turner went home. No one was home. Turner removed his clothes to wash them and took a shower to remove the blood “all over” his hair and face. Id.: 1396-97. He moved the car near to the Fresno Baptist Church so no one would steal the hubcaps. Id.: 1397. On Monday after work, he moved the car again. Id: 1398. He made no attempt to sell the television because it wasn’t his. Turner did not know Mr. Savage’s wallet was on the console of the car. He didn’t even look. Id.: 1399. After work on Monday, Turner took the car to have it washed. He vacuumed the inside, but didn’t clean it further because it wasn’t dirty. Id.: 1400.

Turner denied having the intent to steal from Mr. Savage when they were fighting. He testified stealing from Mr. Savage was the “last thing” on his mind because Mr. Savage had offered him a job. He decided to take Mr. Savage’s car after Mr. Savage was dead because he had no other way home. He picked up the television with the idea of using it as a weapon and took it with him to the car in case somebody tried to stop him. Id.: 1402. Turner remembered stabbing Mr. Savage multiple times. Turner told Mr. Savage to get back and Mr. Savage was “just talking about ‘Baby, I love you.’ ” Id.: 1403. Turner didn’t recall stabbing Mr. Savage in the thigh as the pathologist testified. Id.: 1404. He thought about wiping finger prints from the cabinets and electronic equipment, but decided not to do so. Id.: 1405-06.

k. Guilt Phase Testimony of Bartender Jay Bradshaw

Mr. Bradshaw was employed as a bartender at the Fresno Express/ Back Door Bar. This was a homosexual bar, the same one Turner described being in front of when he first met Mr. Savage. Mr. Bradshaw recognized Mr. Savage as a frequent customer at this bar. RT-7: 1451.

l. Guilt Phase Testimony of Phillip M. Hamm, Jr., Ph.D.

Dr. Hamm, a licensed psychologist practicing in Merced and who had prior testimonial experience in court, personally interviewed and conducted testing on Turner on three separate days. RT-7: 1475. When Turner described the events leading up to the stabbing of Mr. Savage, Dr. Hamm understood it was a “stressful situation” for him. Dr. Hamm opined that Turner had a mental disorder based on his interviews with and testing of Turner, the transcript of the preliminary hearing, various police reports, and material from Turner’s prison records. Id.: 1477. Based on the results of the Wechsler Adult Intelligence Scale (“WAIS”), Dr. Hamm described Turner as a person with “slightly below average intellectual abilities” who had “a lesser capacity than the average person or people who we would consider to be in the average range to solve problems, to handle unique and novel problems, situations.” No actual IQ (intelligence quotient) was elicited from Dr. Hamm. Id.: 1478-80. Turner scored in the 30th percentile for intelligence. Id.: 1481. Testing also showed that Turner was submissive, mentally dull, and “would have a tendency to become disorganized under stress,” meaning he “would tend to decompose or he would tend to lose control” when called upon to cope or solve problems. Id.: 1482. The next test, the Minnesota Multiphasic Personality Inventory (“MMPI”) included a validity scale. Accordingly, the test results demonstrated to Dr. Hamm that Turner’s responses accurately reflected his personality and the various symptoms he was experiencing. Id.: 1483-84. Turner’s responses on the Rorschach (ink blot) Test also confirmed his passive and submissive qualities as well as his lack of intelligence and lack of creativity. Id.: 1458-86.

During Dr. Hamm’s interview with Turner, the events leading up to the crime were explained, including the initial meeting between Mr. Savage and Turner, arrangements for Turner to work at Mr. Savage’s Merced house, and Turner’s consumption of PCP cigarettes before being picked up by Mr. Savage and during a break from what little work Turner performed in Mr. Savage’s yard. Turner described a situation where Mr. Savage basically did not require him to perform very much work at all. He (Mr. Savage) essentially began “to entertain” Turner. Id.: 1488-89. Turner and Mr. Savage discussed compensation for the work Turner performed with Turner saying “he would prefer perhaps for Mr. Savage to perhaps buy him some clothing.” Dr. Hamm commented on how Turner was impressed with the fact that Mr. Savage commanded so much respect from those with whom he came into contact — particularly referring to the store clerk at Gottschalks. Id.: 1490. When Turner was trying on the clothes at Gottschalks, he noticed Mr. Savage looking at him in a way that made him feel uncomfortable. Mr. Savage was very solicitous. Id.: 1491. Turner told Dr. Hamm that when they came back to Mr. Savage’s home, Mr. Savage touched Turner and asked him if he were ready to go to bed. Turner reported being surprised and repulsed by the invitation. Id.: 1492. At the time, Mr. Savage was dressed in his underwear. He became angry at Turner’s refusal, proceeding to swear at him and hit him with a stick. Turner left the house, smoked a stick of PCP, was approached by an apologetic Mr. Savage, and returned to Mr. Savage’s house to collect his (Turner’s) coat and then go home. Mr. Savage “became solicitous and offered him [Turner] a drink,” but then they began to argue about whether Turner would or would not have sex with him (Mr. Savage). Id.: 1493-94. Mr. Savage tried to talk Turner into having sex with him — offering to buy him anything. Dr. Hamm recounted that Turner reported it was at this point when his head was “pounding, spinning, music sounded like it was loud, he was getting more confused, more disorganized.” Then Mr. Savage became furious not only at Turner’s refusal but that Turner might disclose the fact of Mr. Savage’s overtures. Turner kept telling Mr. Savage he wanted to go home. Mr. Savage reportedly told Turner to “shut up and reminded him that nobody knew where he was,” all the while continuing his argument and fury. Turner then recounted that he went upstairs to get his coat and then just sat in the family room “trying to sort things out.” Then Mr. Savage came up behind him and began to choke him. Id.: 1494. At this point, Turner grabbed his knife and began to stick Mr. Savage with it; Mr. Savage hit Turner with a fire place poker. Turner picked up the knife and stabbed Mr. Savage as Mr. Savage approached. The stab went into Mr. Savage’s chest and there was a lot of blood “spurting out all over the place.” Prior to this, the PCP was making Turner feel spaced out; “intentions came to his mind to beat Mr. Savage up and leave. But he was fighting it.” He reported to Dr. Hamm that when Mr. Savage came up behind him, he “went off,” meaning he lost control. Id.: 1495. He heard voices telling him to get the knife and stab Mr. Savage. Dr. Hamm continued that Turner went upstairs to get his coat. While there, he was frantic; he couldn’t find his coat. He threw the fireplace poker at a dresser, grabbed the television to throw at Mr. Savage, and came back downstairs. When he came down, Mr. Savage was lying on the ground. He took off Mr. Savage’s watch and rings and determined Mr. Savage didn’t have a pulse. When Turner was recounting this part of the story, he was becoming more and more frantic, as he was reliving what had transpired. After he initially found no pulse on Mr. Savage, Turner went to the bar, drank some liquor, and splashed some liquor on his face, then went back to Mr. Savage’s body to check for a pulse again. Id.: 1496. After Turner realized Mr. Savage was dead, he contemplated whether he should “rob” Mr. Savage. Mr. Savage’s dog was howling. Turner thought he saw one of Mr. Savage’s eyes open and then close. Turner then went upstairs to get something to cover Mr. Savage’s body, put the television in the car, and drove to Fresno. The next thing he remembered was waking up at his home with blood all over himself. Id.: 1497. Although Turner was not a person who was psychotic or crazy normally, the effects of PCP mixed with alcohol exacerbated his ability to maintain mental organization, being a man of low native intelligence in a drug-free state. Id.: 1498-99. “His ability to think things through [was] highly impaired at that time. From an emotional standpoint, he was confused. He was being bombarded with conflicting passionate behavior on the part of Mr. Savage.” Id.: 1499. On the one hand, Mr. Savage was a high-powered person being solicitous and kindly, treating Turner like a child. On the other, he was becoming demanding and abusive, including sexually abusive. Turner was having auditory hallucinations, hearing voices telling him what to do. Id.: 1500. He was in the grips of hysteria and eventually began to dissociate himself from the situation and from his own conduct of stabbing Mr. Savage. Id.: 1501-02. At the time of the struggle with Mr. Savage, Turner was borderline psychotic, that is, “out of touch with [the] reality of the situation.” Id.: 1503.

On cross examination, Mr. Hallford attempted to undermine Dr. Hamm’s conclusions by suggesting that Turner had lied to him, including about having used PCP, drinking alcohol with Mr. Savage on the day of the crime, and Mr. Savage’s sexual advances. Mr. Hallford emphasized that the story Dr. Hamm recounted was not what really happened, but, rather, what Turner said happened. Included in this argument was the suggestion that Turner in fact had not used PCP on the day of the crime. Id.: 1504. Dr. Hamm testified that although Turner told officers he didn’t know Roy Savage, this misstatement could have been based on defensiveness or amnesia. Dr. Hamm felt that Turner’s story during their interview was consistent with the result of the psychological tests. Id.: 1506. He admitted, however, that the tests administered to Turner did not indicate whether he (Turner) committed a crime or intended to commit a crime. He commented that the presence of a low IQ score would be more consistent with murder because people with lower intelligence would tend to utilize more of a physical than a mental approach to problems. Id.: 1507-08. Mr. Hallford suggested that since Turner lied to investigating officers about whether he knew Mr. Savage, he would also lie to the jury. Id.: 1509. Dr. Hamm did not believe a defendant would lie to a jury because he would be counseled against it; lying would be very detrimental to the defense case. Id.: 1510. Dr. Hamm believed his “interview methodology, coupled with the psychological testing, and review of the records, [wa]s a lot more scientific in terms of determining a man’s mental state at the time of the commission of the offense than what the police officers did.” Id.: 1513. He explained that psychological testing is a scientific tool used to infer certain information. Id.: 1513-14. In fact, Dr. Hamm’s purpose in examining Turner was not to accept Turner’s word for everything, but rather to determine “the factual basis for the issues in question.” The tests administered to Turner originally were developed to make diagnostic assessments and to provide treatment, but after much work and research, they had been properly applied to legal issues. Id.: 1517-18.

m. Guilt Phase Testimony of Lee Stewart Coleman, M.D.

In rebuttal to the defense presentation of Dr. Hamm, Mr. Hallford called psychiatrist Lee Stewart Coleman, M.D. As a practicing, clinical psychiatrist, Dr. Coleman told the jurors that psychiatry cannot help a court or jury decide questions of a defendant’s mental state. RT-7: 1522. He further discounted the value of psychological tests as providing independent reliable information because they rely on the personal opinion of the tester. Id.: 1524. With respect to Dr. Hamm’s testimony, specifically, Dr. Coleman found it “extremely misleading” and the tests administered irrelevant as well as unreliable. Id.: 1528-29. A primary basis for Dr. Coleman’s opinion was that subjects in the criminal justice system have a reason to misrepresent the facts. Id.: 1528.

n. Mr. Hallford’s Guilt Phase Summation

Mr. Hallford emphasized Turner’s lack of credibility on account of untruthfulness to officers at his arrest and interrogation that he hadn’t been to Merced and didn’t know Mr. Savage. RT-8: 1664. He further discounted the theory that Mr. Savage was gay and was looking to Turner for sex. The only basis for that theory was Turner’s testimony, which Mr. Hallford urged was not credible, and evidence that Mr. Savage had been seen at a gay bar. Id.: 1666-67. Referring to the cut telephone cords, he stressed they were cut for a purpose and that Mr. Savage certainly didn’t cut them. Id.: 1667-68. With respect to the television Turner took from the master bedroom, Mr. Hallford argued it was both unlikely and unreasonable to suppose Turner thought of using it as a defensive weapon. Id.: 1668-69. He discounted the notion that a phantom person came into the house after Mr. Savage was killed, clipped the telephone cords, took the missing items which were never found, re-covered Mr. Savage with towels rather than the blanket from upstairs (Turner testified about), and moved the body. Id.: 1669-70.

He argued that Turner only admitted to the jurors what he had to admit, that is taking the car, taking the television, and stabbing Mr. Savage. Id.: 1670. Then, Turner concocted a story about warding off a sexual attack to show self-defense or homicide in the heat of passion. Id.: 1671. Mr. Hallford maintained that Turner intended to kill Mr. Savage when he repeatedly stabbed him (Mr. Savage) and had robbery in mind when he cut the telephone cords. Id.: 1674-75.

o. Mr. Ellery’s Guilt Phase Summation

Mr. Ellery started with Dr. Hamm’s perception of Turner, as a person of low-average intelligence, who was by nature ill-equipped to handle stressful situations, and the events preceding the homicide were stressful. RT-8: 1679-80. Mr. Savage presented a conflicting personae. On one hand, he was authoritative, wealthy, and sexually demanding. On the other, he was kind, solicitous, and generous. Turner was not only naturally unable to cope with stress, but he also was isolated and wanting to go home. He was getting frustrated. Ultimately, he boiled over and regressed to act in a physical manner, delivering 40 ineffectual wounds and three to four effectual blows. Id.: 1680. The delivery of 40 ineffectual blows did not speak of a planned attack.