Lead
OPINION
Clаrk Elmore was convicted and sentenced'to death for the rape and murder of his stepdaughter, Kristy Ohnstad, in 1995. In this appeal of a judgment of the federal district court, Elmore challenges his death sentence on various constitutional and procedural
Elmore fully litigated these claims through the Washington state court system. The Washington Supreme Court first considered and dismissed several of these issues on direct appeal. Elmore subsequently filed a collateral petition, which the Washington Supreme Court remanded to the trial court for a hearing on Elmore’s defense counsel’s failure to present a mental health defense. After this evidentiary hearing, the Washington Supreme Court dismissed Elmore’s personal restraint petition and held that cоunsel was not ineffective for not having presented a mental health defense.
Elmore subsequently filed this federal habeas petition in federal court. We hold that the conclusion of the Washington Supreme Court that Elmore was not deprived of his constitutional rights during his capital trial was not unreasonable. We therefore affirm the decision of the district court to uphold Elmore’s death sentence.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
On April 17, 1995, Clark Elmore raped and murdered his stepdaughter, Kristy Ohnstad, in Whatcom County, Washington. The details of the crime are gruesome, and not in dispute. After having a verbal altercation with Kristy Ohnstad in which she accused Elmore of having sexually abused her as a child, Elmore told her he was going to drive her to school. Elmore, instead, drove the victim to a secluded area, parked on an undeveloped dirt roadway, and forced her to have intercourse with him. He then choked Kristy Ohnstad with his hands until she became unconscious.
After she was unconscious, Elmore removed her belt, placed it around her neck, and buckled it. He then removed a needle-like tool from his toolbox, forced it into her left ear, and pushed it through to the opposite side of her skull. Elmore then placed a plastic garbage bag around her head and struck her repeatedly with a hammer. Once he was convinced she was dead, Elmore disposed of her body in the woods.
When Kristy Ohnstad’s mother initially reported her missing, Elmore posed as a concerned father searching for his daughter. He called the media and claimed that the police were not doing enough to search for her. Once the police began to focus their search for Kristy Ohnstad on the area where Elmore had concealed the body, Elmore fled to Oregon. Elmore, however, returned to Washington soon after fleeing, and surrendered to the police. After his arrest, Elmore gave a tape recorded confession in which he recounted the details of his crime.
B. Elmore’s Guilty Plea
Elmore was charged with aggravated first degree murder, which made him eligible for the death ■ penalty. At his first court appearance, Elmore stated that he did not want an attorney, and attempted to plead guilty. The trial court declined to take the plea and appointed Jon Komorow-ski as defense counsel. This was Komo-rowski’s first capital case. After being appointed, Komorowski put together a team of co-counsel, an investigator, a mental health advisor, and a legal assistant.
After having discussions with Komorow-ski, Elmore pleaded guilty at his second court appearance. Komorowski stated on the record that he was satisfied that El-more was mentally competent to plead guilty and that his client was pleading guilty voluntarily. During his colloquy,
C. Sentencing Trial
Although Elmore did not receive promises of a life sentence in exchange for his guilty plea, Komorowski’s strategy at sentencing apparently was to present the jury with evidence of Elmore’s remorse for the crime, which included the plea itself. Ko-morowski arrived at this strategy after working with two focus groups of mock jurors, and conducting a mock sentencing trial. Questioning of the focus groups of mock jurors made clear that the most important mitigating factor for a jury at sentencing would be Elmore’s remorse and acceptance of personal responsibility. The focus groups also expressed concern about abusive conduct by Elmore, including past acts of sexual abuse and violence.
As part of his preparation for the sentencing trial, Komorowski considered presenting Elmore’s mental health issues as a mitigating factor. The defense team investigated Elmore’s background and retained a clinical psychologist, Dr. Ronald Kleinknecht, to determine whether Elmore had a mental illness. Dr. Kleinknecht observed that Elmore did not suffer a serious impairment in cognitive skills. Since El-more worked as a mechanic, Dr. Kleink-necht concluded that Elmore had been able to engage in some complex and logical thinking as part of his occupation.
Dr. Kleinknecht referred Elmore to Dr. Donald Roesch, a clinical psychologist with a specialty in psychopathy. After meeting and analyzing Elmore, Dr. Roesch concluded that Elmore was not a psychopath. Dr. Roesch suggested that Elmore’s murder of Kristy Ohnstad was impulsive, and consistent with heightened emotional arousal. While some of the capital defense attorneys who worked with Komorowski recommended further mental health investigation, Komorowski was concerned about Dr. Roesch’s findings, including Elmore’s heightened emotional arousal at the time of the crime. Dr. Roesch also had suggested that Elmore appreciated the seriousness of his crime and attempted to cover it up. Komorowski did not further investigate these matters.
As the sentencing trial approached, El-more suggested that he was less inclined to suffer feelings of remorse. Elmore had received a letter from Sue Ohnstad indicating .that she would not be able to forgive Elmore for the.murder of her daughter, and that she would have no further contact with him. In response to this letter, El-more told his defense team’s investigator that he no longer had anyone to whom he thought he needed to apologize. As a result, Komorowski testified that he believed that “time was running out” on the defense’s ability to pursue a remorse defense.
The defense team ultimately did not present mental health or brain damage evidence. Instead, they presented evidence of Elmore’s acceptance of personal responsibility for his crime. As part of this defense stratеgy, Elmore agreed to appear in jail garb throughout the sentencing trial. Elmore also appeared in shackles on the first day of jury selection. Although this was not part of the defense team’s strategy, Komorowski did not object to the use of shackles. After the prosecutor raised concerns about Elmore appearing in shackles, Elmore did not appear shackled after the first day of voir dire.
The prosecutor’s case focused on El-more’s confession. A detective played a redacted version of Elmore’s taped confession. The redacted tape omitted a portion of the confession that Komorowski believed
The defense’s case attempted to show Elmore’s remorse and acceptance of responsibility for the crime. Three judges, who had overseen various phases of El-more’s charging and sentencing, testified about pretrial proceedings and Elmore’s willingness to accept responsibility. The investigator on Komorowski’s team testified regarding Elmore’s remorse. The defense also presented evidence about El-more’s military service in Vietnam, his work history, and his relationship with Sue Ohnstad.
At the end of the sentencing trial, the judge instructed the jury, “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” During deliberations, the jury had access to portions of Elmore’s tape-recorded confession. The jury unanimously concluded that Elmore did not merit leniency, and the judge sentenced Elmore to death.
After the sentence was handed down, Elmore moved for a new trial, arguing that the jury had improperly listened to the redacted tape confession during deliberations. The judge denied the motion, ruling that the jury properly considered the tape during deliberations.
D.Juror 12
Juror 12 stated during a post-trial interview that he had experienced two incidents of sexual molestation. In the first incident, the juror had been “spooned” by another boy when he was around eight years old. In the second incident, when Juror 12 was around eleven years old, a boy in his boy scout troop had groped him.
During voir dire for the penalty phase of Elmore’s trial, Juror 12 stated on a questionnaire that he had never been the victim of a crime or a sexual offense. The juror testified in his post-trial interview that he did not believe that the two past incidents of sexual abuse were crimes or sexual offenses. Juror 12 also testified that he did not think about these two acts of sexual molestation during Elmore’s trial and the subsequent deliberations.
E. Direct Appeal to Washington Supreme Court
Elmore appealed his death sentence to the Washington Supreme Court. Elmore raised various procedural challenges, including due process challenges to his shackling during the first day of jury selection and the jury’s access to his taped confession during deliberations. Elmore also claimed that Komorowski had not advised him of the constitutional rights he would forfeit as a result of the guilty plea.
The Washington Supreme Court affirmed the conviction and sentence on direct appeal. The Court suggested that although it may have been error for El-more to be shackled on the first day of voir dire, because the trial court did not order Elmore shackled during sentencing, this did not constitute a due process violation. State v. Elmore,
F. Elmore’s Personal Restraint Petition and Evidentiary Hearing
Aftеr the Washington Supreme Court affirmed the death sentence on direct appeal, Elmore filed a personal restraint petition in Washington state court. This
The Washington Supreme Court remanded the case to the superior court for an evidentiary hearing concerning the defense’s failure to present mental health evidence. During this hearing, Komorow-ski testified at length about his defense strategy and his reasons for pursuing a defense based solely on Elmore’s remorse for his crime. Komorowski stated thаt he was concerned about dueling mental health experts, the ability of the prosecutor to present evidence of Elmore’s past acts of sexual abuse as rebuttal evidence, and El-more retracting his feelings of remorse.
Several mental health experts testified at this hearing on the issue of Elmore’s alleged mental health issues. The experts testified about whether these impairments could have prevented Elmore from comprehending the crime he had committed. Dr. Dale Watson, one of Elmore’s experts, stated that Elmore had committed the crime under an extreme emotional disturbance and had a reduced ability to control himself. Dr. George Woods, another one of Elmore’s experts, testified that Elmore likely suffered an extreme emotional disturbance and that this might have impaired his ability to comply with the law. Dr. Henry Levine, a prosecution expert, testified that while Elmore might suffer from psychiatric disordеrs, the evidence at the time of the crime revealed that “[El-more] was calm, calculating, able to conform his conduct with the requirements of the law and that he took rather significant measures prior to the crime and during the crime to cover it up, which indicates to me he was thinking and behaving in terms that allowed him to be described as a thinking and calculating individual.”
After the Washington Supreme Court reviewed the superior court’s findings of fact, in November 2007, it denied Elmore’s personal restraint petition. The Court held that: (1) it was not deficient representation for the defense not to present a mental health defense, and instead rely on remorse, (2) it was deficient representation to allow Elmore to appear in restraints on the first day of the penalty phase of the trial, but this deficiency did not prejudice Elmore, (3) claims concerning the jury’s consideration of the taped confession during deliberations had been considered аnd rejected on direct appeal, and (4) Elmore was not denied an impartial jury because Juror 12’s incidents were “minor” and “Minimal sexual contact between two young boys is significantly different from the rape and murder charges Elmore faced.” In re Elmore,
G. Federal Habeas Petition
Elmore filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254, listing thirteen purported errors by the Washington state courts. Among these claims were that his appearance in restraints violated due process, that his counsel provided ineffective representation, and that he was denied an impartial jury because a juror misled the court by stating that he had not been sexually abused.
The district court denied Elmore habeas relief. On the ineffective assistance of counsel claims, the district court noted that “counsel’s advice to plead guilty was the product of reasonable strategy — his client wanted to plead guilty, the prosecutor
JURISDICTION AND STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
DISCUSSION
I. Due Process Claim Related to El-more’s Appearance in Restraints
Elmore contends that his shackling on the first day of jury selection deprived him of the constitutional right to due process, and that the state court erred by finding that this shackling did not prejudice him because he was only shackled for the first day of a two-week voir dire. The district court held that the Washington Supreme Court did not act unreasonably in rejecting this due process claim. We affirm the district court. Assuming, ar-guendo, that Elmore can show a violation of due process, he is not entitled to habeas relief because he cannot show that this violation prejudiced his sentencing. See Washington v. Recuenco,
The prejudice inquiry is relatively fact-specific and applies both to the analysis of the purported due process violation and the ineffective assistance of counsel claim discussed infra. “To determine whether the imposition of physical restraints constitutes prejudicial error, we
We hold that Elmore cannot show prejudice from his shackling on the first day of voir dire because of the limited duration of his shackling and the violent nature of his crime. Elmore correctly argues that the shackling was visible: he wore a belly chain and leg irons. Elmore also notes that the shackling could have influenced the first impression jurors had of him. However, this was partly the point of the defense strategy: Elmore’s defense attorney had decided to attempt to show El-more’s acceptance of responsibility. El-more had agreed to appear before the jury in jail clothing for the entire trial as part of this strategy.
The specific facts of the crime, which were gruesome and violent, also suggest that Elmore was not prejudiced, although this should be considered in light of the fact that capital murder trials always consider extremely violent crimes. Larson,
The duration of Elmore’s shackling also suggests that there was no prejudice. Unlike our holding in Spain, where the defendant’s shackles were conspicuous for the entire trial, Elmore was shackled for one day. Spain,
II. Ineffective Assistance of Counsel Claims
Elmore raises four related ineffective аssistance of counsel claims: (1) the defense attorney failed to object to the use of restraints at trial, (2) the defense attorney did not present mitigation evidence concerning mental health, lack of future dangerousness, and remorse, (3) the defense attorney did not object to the redaction of the taped confession to exclude material that showed aspects of Elmore’s contrition, and (4) the defense attorney incorrectly advised him that pleading guilty increases the chance of a life sentence.
To prove that he was deprived of his Sixth Amendment right to the effective assistance of counsel, Elmore must satisfy a two-part standard. First, he must show that counsel’s performance was so deficient that it “fell below an objective standard of reasonableness.” Strickland v. Washington,
Under AEDPA, Elmore must also show that the Washington state court adjudication was objectively unreasonable in dismissing his ineffective assistance of counsel claims. See Brown v. Uttecht,
A. Failure to Object to Restraints
The Washington Supreme Court concluded that counsel was deficient in not objecting to the use of restraints but that Elmore was not prejudiced by his wearing of restraints. In re Elmore,
Elmore’s case does not fit into any of the circumstances of deficient performance where we assume prejudice, namely: (1) a denial of counsel, (2) state interference with counsel’s assistance, or (3) an actual conflict of interest. See Walker v. Martel,
As above, we conclude that the Washington Supreme Court was not unreasonable in concluding that Elmore failed to show prejudice from his shackling because of the limited duration of the shackling and the violent nature of the crime. The Washington Supreme Court applied this prejudice standard to the ineffective assistance of counsel claims and arrived at the same conclusion. In re Elmore,
B. Presentation of Mental Health and Brain Damage Evidence
Elmore next argues that his defense counsel was required to fully explore defenses based on mental health and possible brain damage, including retaining a neu-ropsychological expert, before deciding not to present each of these defenses. Elmore also argues that his defense attorney did not expand on sympathetic information from his background, such as his family, his time in the military during the Vietnam war, his exposure to neurotoxins that may
As a threshold matter, we distinguish two separate but complementary defense strategies that were available to Komorow-ski at the time of Elmore’s sentencing. The first, the mental health defense, .refers to the presentation of mitigating factors related to Elmore’s possible mental disorders, “child sexual and physical abuse, adult sexual trauma, and neuropsychological impairment.” The second, the brain damage defense, refers to mitigating factors related to Elmore’s physical brain damage from prior head injuries and an alleged lifelong exposure to toxic agents, including during Elmore’s service as a soldier in Vietnam. The Washington Supreme Court decision dismissing Elmore’s personal restraint petition, at times, conflated the mental health and brain damage defenses. See In re Elmore,
We conclude that defense counsel was not deficient in focusing on a remorse-oriented strategy, rather than presenting evidence related to Elmore’s mental health or brain damage. Even if we entertain the possibility that Elmore might be correct that some of the material Komorowski did not present to the jury could have assisted his case, his arguments are little more than a challenge to his defense attorney’s trial strategy with the benefit of hindsight. As long as defense counsel uses a “sound trial strategy,” employing that strategy does not constitute deficient performance. Brown,
Having retained a trial consulting firm that conducted two mock trials, Komorowski and his defense team made a reasonable strategic decision to pursue a remorse defense. These mock trials showed that jurors responded better to evidence about Elmore’s remorse and acceptance of responsibility than to mitigation evidence concerning his mental health or brain damage. Komorowski thus focused his attention on having three judges, who had overseen phases of Elmore’s charging and sentencing, testify about Elmore’s remorse and willingness to accept responsibility by pleading guilty. He also called the defense investigator to present the jury with Elmore’s background information, such as his family history and service in Vietnam.
Considering what they perceived to be the relative strength of a remorse defense, Komorowski and the defense team made the strategic decision to pursue this defense exclusively. Komorowski did hire two mental health experts to evaluate El-more. Based on the findings of the mental health experts, Komorowski was concerned that a strategy that presented other defenses to complement the remorse defense would detract from, or destroy, the remorse strategy. For example, in response to a mental health defense, the prosecution’s
Ultimately, the decision to present a limited defense to restrict the prosecution’s rebuttal evidence was a legitimate strategy. See Bell v. Cone,
C. Redacted Taped Confession
Elmore next claims that his defense counsel was ineffective for not objecting to the redaction of his taped confession during the sentencing trial. This redaction removed material in which El-more had expressed regret about his relationship with Kristy Ohnstad.
Although it might have been deficient performance for defense counsel to completely ignore this omission, Komorowski did ask about this material on cross-examination. One of the detectives assigned to Elmore’s case read verbatim Elmore’s statement to the jury. The jury still heard Elmore’s statements about his relationship with Kristy Ohnstad.
The inclusion of this statement in cross-examination also makes it far less likely that the omission of this tape evidence prejudiced the defense. The jury still heard Elmore’s statements about his relationship with Kristy Ohnstad. Although a third party reading in testimony is arguably weaker than the jury’s hearing El-more’s own voice, the manner in which the evidence was presented can cut both ways. Elmore’s defense counsel isolated El-more’s statement from the other parts of the confession, where Elmore described the gruesome nаture of the crime. In these circumstances, it was not unreasonable for the Washington Supreme Court to conclude that Elmore was not deprived of his Sixth Amendment rights.
D. Advice to Plead Guilty
Elmore contends that his defense counsel incorrectly advised him to plead guilty because “he would have a better chance of avoiding the death penalty than if he went to trial.” Elmore also points
The decision to plead guilty in a capital case is a serious one, and counsel has a professional, duty to«explain to a defendant the advantages and disadvantages of entering the guilty plea. See American Bar Association, Death Penalty Guidelines 10.9.2 (2003). However, a defendant still retains the right to plead guilty to a capital crime. In the past, we have held that a defendant may want to plead guilty for a number of reasons, including sparing a defendant’s family from public scrutiny, minimizing trauma to victims and survivors, and a desire to accept responsibility. See Deere v. Cullen,
Assuming, arguendo, that Komorowski performed show that this advice prejudiced him under the second prong of Strickland. Given the evidence against Elmore, including the damning tape-recorded confession, it is highly likely that a jury would have still convicted him of the same crime, even if he had not pleaded guilty. Although Elmore suggests that his attorney could have presented a mental health defense at the guilt phase of a trial, Elmore has not demonstrated prejudice because reports from the mental health experts did not establish a reasonable probability that the defense would have succeeded. See Section III.C, supra. Had Elmore been convicted at the guilt phase, he would have been in the same position during the penalty phase of the trial, except that a remorse defense may have been weakened.
III. Impartial Jury
Elmore also claims that he was deprived of his right to trial by an impartial jury beсause a juror lied during voir dire. Juror 12 stated that he had not been the victim of sexual abuse. Five years after the trial, the juror revealed in an interview that he had been the victim of two acts of sexual molestation as a child. The Washington Supreme Court rejected Elmore’s claim, concluding that the juror’s sexual abuse was not material to Elmore’s trial because the incidents of molestation were “minor and occurred when the juror was a young teen. Neither incident involved violence or rape, the crimes for which petitioner was prosecuted.” In re Elmore,
Even if the responses by Juror 12 were material, Juror 12 likely could not have been removed for cause. The juror stated in his questionnaire that he could listen to the evidence and decide the case with an open mind, that he would be fair to both sides, and that he would vote to impose the death penalty on a case-by-case basis. El-more argues that Juror 12’s alleged lies on other questions regarding sexual crimes invalidate this questionnaire. However, the juror stated that he did not consider the acts of molestation to be crimes or sexual offenses. This suggests that he believed his responses on the questionnaire to be accurate. Accordingly, we conclude that the Washingtоn Supreme Court was not unreasonable in dismissing El-more’s claims alleging juror bias.
IV. Conclusion
We hold that the Washington Supreme Court’s resolution of Elmore’s constitutional claims was not unreasonable. The district court did not err in denying Clark Elmore’s challenges to his conviction and death sentence, and we therefore affirm the district court’s decision.
All outstanding motions are denied.
Each party shall bear its own costs on appeal.
AFFIRMED.
Concurrence Opinion
concurring in part and concurring in the result:
Clark Elmore committed a truly monstrous crime. A state that has chosen to impose thé death penalty can surely reserve it for such an offense.
But, before the state can impose that sentence, Elmore is entitled under the Sixth Amendment to effective assistance of counsel. I doubt that he received competent representation. His lawyer, who had never before handled a capital case, advised Elmore to plead guilty without receiving any agreement as to sentence in return.
. But under AEDPA, my serious doubt as to whether the Sixth Amendment was honored is not enough. Rather, we are constrained to view counsel’s performance and the state court’s denial of relief through a “doubly deferential” lens. Knowles v. Mirzayance,
I.
The majority holds that the Washington Supreme Court reasonably rejected El-more’s ineffective assistance of counsel claim relating to brain damage because the decision to present a limited mitigation case was a “legitimate strategy.” But we evaluate strategy “in terms of the adequacy of the investigations supporting” it. Wiggins v. Smith,
The Supreme Court has emphasized that in preparing a death penalty mitigation defense, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins,
The prevailing professional norms in 1995 plainly required an investigation into brain damage. The American Bar Association Guidelines have been repeatedly cited by the Supreme Court as “ ‘guides to determining what is reasonable’ ” in capital litigation defense. Wiggins,
The evidence in this case plainly “would have led a reasonably competent attorney to investigate further” about brain damage. Wiggins,
Counsel not only failed to undertake any brain damage investigation, but offered no explanation for this omission other than inexperience.
The state court’s conclusion that counsel’s representation met prevailing norms was thus flatly inconsistent with clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1) (allowing habeas relief if a state court decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). And, the majority’s conclusion that counsel’s oversight can be excused as “strategy” is in direct tension with our recent decision in Mann. In that case, we squarely held that the state court unreasonably determined that counsel’s failure to investigate brain damage did not fall below an objective standard of reasonableness:
[C]ounsel could not have made a reasoned stratеgic decision to not present mitigating evidence regarding Mann’s organic brain damage or other life history because he did not even attempt to explore that evidence. Rather, the record suggests that his failure to investigatethoroughly resulted from inattention, not reasoned strategic judgment.
Although “strategic choices made after thorough investigation of law and facts ... are virtually unchallengeable,” Strickland,
Counsel’s failure to investigate brain damage was plainly not effective reprеsentation. A state that chooses to impose capital punishment owes a defendant more. Even when scrutinized with AEDPA deference, the state court’s determination to the contrary was unreasonable.
II.
But, even when counsel’s performance falls below the applicable standard of care, a successful ineffective assistance claim also requires proof of prejudice. See Strickland,
In the state post-conviction review proceedings, both Elmore and the State submitted evidence about brain damage. In reviewing this evidence, the Washington Supreme Court stated that the “expert witnesses did not agree on whether, or to what extent, Elmore’s mental deficiencies affected his ability to conform to lawful behavior.” In re Elmore,
To be sure, because no “causal nexus” is required between the defendant’s proffered mitigation and the crime, see Hurles v. Ryan,
Notes
. " '[PJleading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant.’ ” Florida v. Nixon,
. Counsel had never represented a death penalty defendant prior to Elmore, and he had never retained a neuropsychologist or neurologist in his previous criminal defense work. He testified that "unless identification of signs or symptoms of traumatic brain injury were covered” in one of the death penally seminars that he attended, “he did not recall ever having received such training.”
. As the panel notes, the Washington Supreme Court appeared to conflate the mental health and brain damage issues. It is also unclear whether the Washington Supreme Court expressly reached the Strickland prejudice prong with respect to the brain damage investigation. We must, however, apply AED-PA deference unless it is clear that "the state court has not decided an issue.” Reynoso v. Giurbino,