Lead Opinion
Opinion by Judge HUG; Dissent by Judge GRABER.
Jeanne Woodford, Acting Warden of San Quentin State Prison (the “State”), appeals the district court’s order granting California state prisoner Steven Ainsworth’s 28 U.S.C. § 2254 habeas corpus petition vacating Ainsworth’s capital sentence. The district court granted relief on Ainsworth’s claim that defense counsel was ineffective for failure to investigate and present mitigation evidence at the penalty phase. The district court denied relief on the remaining penalty phase claims. Ainsworth cross-appeals from the district court’s denial of relief on three claims. Because we conclude that Ainsworth’s constitutional right to effective assistance of counsel was violated, we do not consider the additional issue raised in the State’s appeal or those issues raised in Ainsworth’s cross-appeal as all four issues relate to the penalty phase trial and there is no indication those issues would arise again in a new penalty phase trial. Accordingly, we affirm the district court’s decision to grant the writ based on counsel’s ineffective assistance.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts and Guilt Phase Proceedings
On September 12, 1978, Seng “Nancy” Huynh left her home and drove to downtown Sacramento where she was scheduled to work the swing shift at the California Employment Development Department. Shortly after 3:00 p.m. on that day, Ains-worth and Donald Gene Bayles walked onto the public parking lot where Huynh was parking her car. Because Ainsworth did not take the stand, the following narrative is largely based on the testimony of his co-defendant Bayles. As the district court noted, “Bayles shifted all blame for Huynh’s death to Ainsworth.”
Ainsworth shouted “come on, there’s one over there,” at which point Ainsworth left Bayles and approached Huynh’s car. Bayles then heard a “pop” sound. When Bayles approached Huynh’s car he discovered Ainsworth sitting in the driver’s seat with Huynh sitting beside him. Bayles got into the front passenger’s seat next to Huynh and Ainsworth drove the car out of the parking lot.
Ainsworth had shot Huynh in the left hip with a .45 caliber handgun. The bullet passed through Huynh’s pelvis and lodged against her right hip. During the next twenty-four hours, Bayles testified that he and Ainsworth confined Huynh to the car while they drove around using money from Huynh’s purse to purchase beer and gasoline. The two men ignored Huynh’s repeated pleas for help. At one point, Bayles put Huynh in the trunk of the car because the men were tired of hearing Huynh moan and cry. Later the men removed Huynh from the trunk and placed her in the back seat of the car. Bayles testified that Ainsworth raped Huynh. (The California Supreme Court held that it was error to admit testimony concerning
Approximately twenty-four hours after being shot, Huynh died in the vehicle. Ainsworth and Bayles dumped her body in a wooded area and drove towards San Francisco. Along the way they picked up a hitchhiker. After dropping the hitchhiker off in downtown San Francisco, Ans-worth and Bayles abandoned the car and went their separate ways.
Two days after Huynh’s disappearance, police discovered her car in Pacifica, California, less than one mile from Answorth’s residence. Inside the vehicle, police found a .45 caliber shell casing. Human blood was found on the rear seat cushions and on paper bags in the trunk. Several items found in and near the car had Answorth’s and Bayles’s fingerprints on them.
On the morning of September 16, 1978, police discovered Huynh’s purse and brassiere on the ground at an interchange area off Interstate 5. In the purse, police found a time card bearing Huynh’s signature and Bayles’s fingerprints. On January 20, 1979, nearly four months after Huynh’s disappearance, police arrested Bayles. Bayles led authorities to a clearing approximately seven miles south of Elk Creek, California. There police found Huynh’s body behind a log, covered by a 55-gallon drum. The body was in an advanced state of decomposition.
Police arrested Ainsworth in May of 1979. Answorth and Bayles were charged with first degree murder with two special circumstances, kidnapping and robbery. The State tried the defendants jointly. Ainsworth did not take the stand.
On January 2, 1980, Answorth was found guilty of first degree murder. The jury also found to be true the special circumstances allegations of robbery and kidnapping. Bayles was found guilty of second degree murder.
II. Penalty Phase Proceedings
A. Prosecution’s Case
The penalty phase commenced on January 4, 1980. The prosecution entered a stipulation that Answorth had twice been convicted of armed robbery. The prosecution then introduced two unadjudicated criminal acts committed by Answorth: a 1978 armed robbery of a San Mateo market and a 1979 assault and robbery of an individual in San Francisco.
The prosecution presented the testimony of three individuals. The first, Jay Campagna, testified that two days after the murder of Huynh, Answorth held him up at gunpoint in a California convenience store where Campagna was employed. Answorth took $200 from the store’s cash register.
The prosecution’s second witness, Robert Holley, testified regarding an incident that occurred on April 29, 1979, just four days before Answorth was arrested in connection with the murder of Huynh. On that day, Holley and Answorth consumed several beers together at Holley’s home. Answorth then struck Holley on the head from behind and strangled him until Holley lost consciousness. When Holley awoke, he discovered that Answorth and his wife had removed some of Holley’s belongings from the apartment, including his watch, guitar, stereo speakers, wallet, keys and laundry money.
Finally, the State called Dennis Ribble who testified that approximately one week
B. Defense Case
After waiving his opening statement, Ainsworth’s court-appointed counsel called four witnesses. The direct testimony of these four witnesses, including Ainsworth’s counsel’s questions, occupies a total of just under nine transcript pages.
First, the defense called Sherry Dons-ing, Ainsworth’s sixteen-year-old niece. Donsing testified that she had visited her uncle in San Francisco on several occasions and she felt very safe with him. She testified that her uncle was a talented painter and would help her paint and draw. She recalled fishing and taking trips to the mountain with her uncle. She further testified that Ainsworth treated animals very kindly. Finally, she stated that she had never seen Ainsworth hurt anyone or carry a gun.
Next, the defense called Ainsworth’s sister, Carol Donsing, who testified that their father had committed suicide sixteen years prior. She also testified that she never saw Ainsworth carry a gun, that Ainsworth was of “very fair” intelligence, and that he had completed high school and attended some college. In addition, Donsing testified that Ainsworth was married and had a three-month old son.
The defense then called Hazel Deacon, Ainsworth’s former girlfriend. Deacon had known Ainsworth for eight years and had lived with him from 1977 to 1978. She testified that while they lived together Ainsworth held a full-time job and never “brutalized” her or anyone else in her presence. Deacon stated that she felt safe with Ainsworth when she was with him. Deacon recalled an auto accident that occurred near their home; Ainsworth stayed with an injured girl until the fire department arrived. However, after being asked by defense counsel if she had ever seen Ainsworth with a gun, Deacon answered in the affirmative. On the cross examination only made possible by defense counsel’s question and Deacon’s answer, the prosecutor asked, “What did he tell you he was going to do with that firearm?” Deacon answered, “He said he was planning on robbing a bank, only there was too many police around.”
As its final witness, the defense called Colleen Yoho, Ainsworth’s employer and landlord from 1978 to 1979. Yoho testified that Ainsworth had performed carpentry and maintenance work for her and her husband and that he was a good worker. She testified that she had never seen Ains-worth with a gun or engaged in violent behavior. She also stated that she felt in no way threatened by him during the six or seven months she knew him.
Counsel for the prosecution and defense then presented closing arguments. On January 8, 1980, the jury returned a verdict, finding the penalty to be death. Ainsworth was sentenced to death on January 30,1980.
III. Post Trial Proceedings
The California Supreme Court affirmed Ainsworth’s conviction and sentence. See People v. Ainsworth,
On appeal, this court reversed this holding on the guilt phase. See Ainsworth v. Calderon,
In an order filed September 2, 1999, the district court granted Ainsworth’s habeas petition and vacated his death sentence. On September 10, 1999, the State timely filed a notice of appeal. Ainsworth cross-appealed.
Ainsworth sought a certificate of probable cause (CPC) which the district court granted. On May 11, 2001, we granted a certificate of appealability (COA) as to all three issues raised in Ainsworth’s cross-appeal consistent with Slack v. McDaniel,
STANDARD OF REVIEW
We review de novo a district court’s decision to grant or deny habeas corpus relief. See Ainsworth,
DISCUSSION
I. Ineffective Assistance of Counsel at Penalty Phase
The State contends that the district court erred when it concluded that Ains-worth established ineffective assistance of counsel at the sentencing phase of trial. We must evaluate a claim of ineffective assistance of counsel under the two-part test announced in Strickland v. Washington,
A. Deficient Performance
We must first determine whether during the penalty phase of the trial counsel’s performance was deficient. See id. at 687,
Because of the difficulties inherent in assessing whether counsel’s performance was reasonable, the Supreme Court has warned that “[jludicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689,
Even viewing counsel’s perfor- ■ manee with the deferential scrutiny required by the Supreme Court, we find that counsel's representation fell below an ob
It is difficult to imagine, nor could counsel provide at his deposition, a tactical reason for failing to investigate and present the substantial mitigating evidence available. See Clabourne v. Lewis,
Counsel admitted in a 1991 deposition that he abdicated the investigation of Ains-worth’s psychosocial history to one of Ainsworth’s female relatives. Counsel neglected to obtain police reports evidencing Ainsworth’s prior convictions for armed robbery until the day before the penalty phase commenced, although he was aware for two-and-a-half months that the State would present these convictions as evidence in aggravation. Because of his failure to adequately prepare, counsel moved for a continuance which the court denied.
Counsel also failed to present to the jury evidence of Ainsworth’s positive adjustment to prison life during his previous incarcerations. While incarcerated Ains-worth completed his high school education and pursued his artistic talents. He received favorable reviews from prison staff and presented no management or custody problems. This evidence would have aided the jury in determining whether Ainsworth would be a danger to other inmates or prison officers if sentenced to life in prison.
During the penalty phase proceedings, counsel waived his opening statement. He then proceeded to call four witnesses who testified briefly. In the acerbic, but accurate, words of the prosecutor during closing argument, “What do the Ainsworth witnesses tell us? He’s a good artist. He’s kind to animals, and he doesn’t commit crimes with his family looking.”
While it is true that the testimony touched upon general areas of mitigation, counsel’s cursory examination of the witnesses failed to adduce any substantive evidence in mitigation. In fact, counsel’s
Counsel refused to question two of the prosecution’s three witnesses in aggravation. His cross-examination of the third witness consisted of five questions including whether the witness, Dennis Ribble, wanted to see Ainsworth executed for the crime. His brief closing argument did not reference any of the meager evidence he presented during the penalty phase, did not discuss any mitigating factors about Ainsworth as a person or his troubled background, and did not refute any evidence in aggravation offered by the prosecution. The bulk of counsel’s closing was devoted to a general discussion about whether Steven Ainsworth, who “is not a nice person,” should be “locked in a cage for the rest of his life or whether he’ll be put in a gas chamber.” It was essentially an argument against the death penalty in general to a jury that had at voir dire already indicated no opposition to the death penalty.
The available mitigating evidence would have provided the jury with insight into Ainsworth’s troubled childhood, his history of substance abuse, and his mental and emotional problems. Ainsworth grew up in a household where both his mother and father were volatile alcoholics and alcoholic arguments occurred nightly. His father was physically, verbally, and emotionally abusive to Ainsworth and on at least two occasions attempted to kill the young boy. Ainsworth’s father ultimately succeeded in ending his own life on Christmas Day 1963, after four previous suicide attempts. The evidence adduced post-trial indicates that Ainsworth blamed himself for the suicide and felt an overwhelming sense of guilt following his father’s death.
Ainsworth began ingesting alcohol at age five. At 16, he was made a ward of the court after he ran away from home and engaged in vandalism. Later, after an attempted suicide, Ainsworth was admitted to the psychiatric ward of the County Hospital for treatment of alcoholism. By his junior year in high school, Ainsworth was drinking heavily and was expelled from school for bringing alcohol onto the school premises. Shortly thereafter, at age 17, Ainsworth enlisted in the military. He was later discharged because of his addiction to alcohol and morphine, a diagnosis of antisocial personality, and a civilian forgery charge; the discharge occurred just five months after his father’s suicide. Two months later, he was admitted to the Sacramento County Hospital where physicians’ diagnosis was that he suffered from acute alcoholic intoxication, psychoneurotic disorder, and depressive reaction.
Throughout his adult life, Ainsworth regularly abused alcohol and drugs, including heroin, amphetamines, LSD, marijuana, and peyote. He resorted to gasoline when he was unable to access other drugs. He attempted suicide six or seven times by slashing his wrists. All of this information would have been extremely important to the jury in its effort to decide whether to impose the death penalty or a sentence of life in prison where he adjusted with no problems.
Finally, Dr. Stephen Pittel, a professor of psychology and forensic consultant who also examined Ainsworth post-trial, found that:
Mr. Ainsworth used any mind-altering or mood-altering substance that gave him even the briefest respite from his painful depressive feelings and ruminations. [Ejxeept for ... brief periods of abstinence, and while he was incarcerated, Mr. Ainsworth was under the influence of narcotics or other drugs virtually every day from the time of his release from jail in April, 1964 to the time of his arrest for homicide in May, 1979. Mr. Ainsworth used drugs primarily to ward off persistent feelings of guilt, despair, worthlessness, and suicidal urges associated with a major depressive illness. Mr. Ainsworth used drugs as a form of self-medication because he lacked any other means of overcoming or even coping with his unbearable inner experience. [There are] documented instances of depression, alcoholism, drug addiction, suicide and suicide attempts by no less than 19 of Mr. Ainsworth’s ancestors in the past three generations. Mr. Ainsworth’s hereditary predisposition to depression was exacerbated by his parents’ drunkenness, marital discord, and by the verbal and physical abuse, maltreatment, and neglect he suffered at their hands during his formative years. All of [the] crimes ... committed [by Ainsworth were] while Ainsworth was under the influence of heroin or other opiates, and all of them were motivated by Mr. Ainsworth’s need to support a narcotic addiction that required him to spend upwards of $100 a day just to avoid the excruciating pains of withdrawal sickness.
The State contends that compiling the mitigating evidence located post-trial required time and money that Ainsworth’s trial counsel lacked. However, the information obtained post-trial is the type typically gathered by defense counsel for sentencing and was readily available prior to the penalty proceedings. Counsel admitted at his deposition that he sought no assistance from a law clerk, paralegal, or another attorney in his preparation for the penalty phase, nor did he seek advice or aid from investigators or experts. In addition, he did not seek any state funds to prepare for the penalty phase although funding for the use of investigators and experts in capital cases was available under California Penal Code section 987.9.
The State also contends that a less demanding standard of performance existed at the time of Ainsworth’s trial. We reject the State’s contention. The Supreme Court acknowledged the essential importance of developing the background and
[Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sen-tencer is to make an individualized assessment of the appropriateness of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional or mental problems, may be less culpable than defendants who have no such excuse. Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sen-tencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sentencer has treated the defendant as a uniquely individual human bein[g] and has made a reliable determination that death is the appropriate sentence.2
Id. (internal quotations and citations omitted). With the Supreme Court stressing the importance of the jury being able to consider the background and character of a defendant in order to assure the individualized sentencing required by the Eighth Amendment in a trial conducted in 1980, a fortiori it was the obligation of a defense attorney to present that evidence so the jury could consider it.
In Bean v. Calderon,
Similarly in the current action, counsel’s deficient performance resulted from the failure to prepare and present mitigating evidence, interview witnesses, and investigate available documents and other available information. At the very least, counsel should have investigated and developed the background material and presented the information to the jurors so they could make an informed evaluation as to whether the death penalty should be imposed. This was as crucial in 1980 as it is today in order to assure individualized sentencing and the defendant’s right to a fair and reliable capital penalty proceeding.
It is not sufficient, however, that counsel’s performance was deficient. Instead, it must also be established that “the deficient performance prejudiced the defense.” Strickland,
Defense counsel failed to investigate, develop and present the wealth of evidence available concerning Ainsworth’s troubled background and his emotional stability and what led to the development of the person who committed the crime. As the Supreme Court noted, it is “the belief, long held by society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.” Penry,
CONCLUSION
We affirm the judgment of the district court granting the petition based on counsel’s ineffective assistance at the penalty phase of the trial. We remand the case to the district court with instructions to grant the petition for a writ of habeas corpus unless the State within a reasonable period of time either grants a new penalty trial or vacates the sentence and imposes a lesser sentence consistent with law.
AFFIRMED.
Notes
. The dissent indicates that this erroneously admitted evidence of the rape is one of the two facts that "stand out beyond all others” in her determination that there was no prejudice even if defense counsel's representation was constitutionally ineffective.
. The two cases referred to were decided in 1978 and 1982 analyzing cases that had been tried years before, Lockett v. Ohio,
Dissenting Opinion
dissenting:
I respectfully dissent. A previous panel of this court already has held that Petitioner failed to prove that defense counsel was ineffective at the guilt phase of this trial. Ainsworth v. Calderon,
A. Defense Counsel’s Performance at the Penalty Phase
We “must indulge a strong presumption that counsel’s conduct falls within the wide
First, counsel did engage in preparation. Although memories understandably faded between the time of trial in 1979 and the time of depositions 12 years or more later, it is clear that counsel made some efforts to investigate.
Second, defense counsel affirmatively presented significant mitigating evidence.
(1) Petitioner’s teen-aged niece testified that she had spent weekends, and whole weeks, visiting Petitioner in San Francisco. They went to the mountains and fished. They painted and drew, and Petitioner helped her develop these skills. Petitioner treated animals kindly. His niece felt entirely safe with him.
(2) Petitioner’s sister testified that Petitioner was married and had an infant son. She never saw him hurt anyone. She told of his intelligence and explained that he had finished high school and taken college classes. Petitioner’s sister also recounted their father’s suicide when Petitioner was a very young man.
(3) A former girlfriend testified that, in the eight years they had known each other, she never saw him exhibit violence. Indeed, she recalled a particular incident demonstrating Petitioner’s kindness. After a little girl had been hit by a car, Petitioner comforted the child and sent for the fire department and the child’s mother, staying with the child until fire fighters arrived. The former girlfriend felt safe with Petitioner. In fact, they had lived together for a year, during which he was employed full-time and had discussed marriage.
(4)A former landlady testified. She and her husband had met Petitioner several months before. They knew Petitioner as a tenant, as a reliable worker, and as a friend. Petitioner worked part-time for the landlady, doing maintenance and carpentry. In addition, the two couples socialized. This witness never saw Petitioner with a gun and never observed any violent behavior. She, too, felt safe with him.
The foregoing evidence was favorable and humanizing. Even the untoward question posed to the former girlfriend was not wholly problematic, for two reasons. First, the 'jury already knew that Petitioner was an armed robber, so this testimony would not have been surprising in context. Second, it showed that this woman who knew Petitioner very well maintained a favorable opinion of his character despite the occasional presence of guns in his life. That made her testimony more, not less, credible.
Third, in addition to presenting favorable mitigating evidence, defense counsel gave a closing argument. He asked the jury to spare his client’s life, pointing out that Petitioner would never be free (and thus would not be a danger to others) if they rejected the death penalty.
B. Analysis of Prejudice
Even assuming that counsel’s performance was deficient, his imperfections do not undermine my confidence in the outcome of the trial. There is no “reasonable probability that, absent the errors, the senteneer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland,
First, much of the mitigating evidence on which the majority relies presented a double-edged sword, opening the door to harmful rather than helpful inferences.
• The majority faults counsel for failing to explore police reports evidencing Petitioner’s prior convictions for armed robbery. (Maj. op. at 874.) Counsel did argue on legal grounds that evidence of those convictions was inadmissible. Once those arguments failed (and the majority does not suggest that they should have succeeded), it is difficult to see how details of the robberies could have been more helpful to Petitioner than the bare fact of the convictions, which was the evidence admitted.
• Next, the majority relies heavily on the absence of detail that was presented to the jury about Petitioner’s “troubled childhood.” (Maj. op. at 875.) However, the whole picture . that emerges from the later-developed proffer is not nearly so dismal as the majority paints it. More accurately, what Petitioner experienced was a largely normal middle-class childhood with alcoholic parents and a troubled Air Force-officer father.2 The investigator noted the parents’ good intentions; although young when Petitioner was born, “they attempted to be good parents at that time.” Both Petitioner and his sister acknowledged that “their parents attempted to do a lot for the children in terms of taking them places and giving them material things.” Petitioner’s sister stated that, although their parents drank too much, the children “were never neglected.” Even when Petitioner began to get into trouble, he received family support; as Petitioner’s sister described it, their mother (a homemaker and bookkeeper) tried repeatedly to help Petitioner, paying his fines and getting him out of jail. Significantly, too, Petitioner’s “troubled childhood” did not stand in the way of his obtaining an education,*881 working productively, and developing artistic talent when he was motivated to do so.
• The majority cites Petitioner’s military record as more evidence that counsel should have introduced. (Maj. op. at 875.) Is evidence of drug thefts, absences without leave, a psychiatric evaluation of “Antisocial Personality,” courts martial, and an undesirable discharge (following a civilian conviction for forgery) mitigating? Reasonable minds can differ, but I can see no prejudice from the absence of Petitioner’s military record.
• Lastly, the majority asserts that expert opinions regarding substance and other abuse could have turned the tide. (Maj. op. at 875-77.) However, the full record contains other evidence that casts doubt on the credibility of these experts’ views. I already have alluded to a different assessment of the conditions of Petitioner’s childhood. Moreover, when being released from prison shortly before committing the murder in this case, Petitioner was described as being “mature,” possessing “superior” intelligence, and having the skills to get along “well” with his family, to obtain work, and to “cope with problems of stress and drug usage.” In other words, these observations cast doubt on the experts’ views that he was or is unable to overcome the consequences of substance abuse and a difficult childhood.
Importantly, Petitioner never argued that he was under the influence of alcohol or drugs when he committed the murder. Instead, his defense was that he did not do it. Therefore, in the context of this trial, any evidence of substance abuse could not have mitigated the circumstances of the crime itself. For the evidence to be mitigating in this case, it would have had to persuade the jury to spare Petitioner’s life merely because of his substance abuse.
That brings me to the second reason why I believe there is no reasonable doubt that the jury would have come to the same result, even with this evidence. The additional mitigating evidence does not show prejudice because the murder itself was exceptionally cruel. Of course, every death-penalty case involves terrible facts, but juries can and do consider just how terrible the facts are when weighing the mitigating evidence.
For me, two facts stand out beyond all others. The first is what Petitioner said when he decided that the victim must die. During the 24 hours during which the victim whimpered and begged for help and mercy while she slowly bled to death, Petitioner’s accomplice urged him to take her for medical care or leave her where someone else might find her. Petitioner calculatedly refused because, he said, he had been in prison for robberies and did not want to go back. The second chilling fact is what Petitioner said when he decided to remove the victim’s sanitary napkin and rape her while she was dying: “Okay, you bitch, now is it.”
C. Conclusion
The performance of defense counsel at the penalty phase of the trial in 1979 was, although not perfect, within the range of competent representation. Even if it was not, Petitioner suffered no actual prejudice as a result of counsel’s deficiencies. For those reasons, I would reverse the judgment of the district court, and I dissent from the majority’s contrary holding.
. Lack of recollection of details 12 or more years after the events in question is not, by itself, a reason to distrust counsel or counsel’s judgment. Petitioner’s memory, too, was quite hazy due to the passage of time. Indeed, when so much time has passed it is even more important to keep in mind the presumption of adequate assistance of counsel.
. The jury was informed that Petitioner’s father was troubled; Petitioner’s sister testified about their father’s suicide. The majority exaggerates even the father's history when it says that "on at least two occasions [he] attempted to kill the young boy.” (Maj. op. at 875.) When Petitioner was 13 years old, his father threw large chunks of cement at him, while drunk at a family outing at the beach. Petitioner was not injured. When Petitioner was about 16 years old, he was riding with his father in a truck, and his father tried to roll the truck. Again, he was uninjured. Petitioner did believe that his father was trying to kill him on both occasions, rather than acting out momentary drunkenness or depression, but there is no support for the majority's suggestions that there were other such occasions or that Petitioner was a "young boy” at the time.
. The majority suggests that it is inappropriate to rely on Bayles’ testimony about the rape. (Maj. op. at 870-71.) However, the very reason why the California Supreme Court held that the trial judge's error was harmless was that there was unrebutted physical evidence corroborating Bayles' account of the rape. People v. Ainsworth,