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In re Gay12/24/1998
to Shinn's belief, shared by Weaver, that because petitioner had killed a policeman, imposition of the death penalty was a foregone Conclusion. We do not foreclose the possibility that the failure is also attributable to simple incompetence unrelated to Shinn's assessment of the likelihood that the death penalty would have been imposed.
Investigator Payne testified that there were some family members whom petitioner stated he did not want exposed to the trauma of trial, and petitioner did not want to give the appearance of sniveling or groveling for his life. He did not want to go into abuse by his parents or any type of abuse, psychological or sexual abuse, and he did not want to use his father as a witness as his father had some problems and petitioner did not believe he could control his father. Petitioner gave Payne instructions on every witness. He refused to call an older brother who was in prison and one younger sibling he felt had nothing relevant to offer. Petitioner did not want Dorrie Gay, Steven Gay, or Sharon Gay called.
Petitioner himself testified that he wanted to insist on his innocence at the penalty phase. He also testified that, although the subject did not come up, he would have "groveled" to get a life without possibility of parole sentence. He did not tell Shinn that he did not want his father or sisters to testify.
The referee found Payne's testimony convincing. As noted earlier, since the referee has the opportunity to hear and observe the witnesses at an evidentiary hearing, we accord great deference to the referee's assessment of credibility. Nonetheless, while petitioner may have said he did not want to grovel and did indicate that some family members should not be called, the evidence does not support a Conclusion that petitioner did not want to put on a defense at the penalty phase. We do not equate a desire not to "grovel" with abandonment of a penalty phase defense. Indeed, Shinn, Payne, and Weaver all testified that petitioner was cooperative and helpful in penalty phase preparation. Although petitioner did not want his father or his sister to testify, he did not put limits on other potential witnesses. His reluctance to have those witnesses called may well be explained by his father's mental deterioration and erratic behavior and by his sister's schizophrenia.
There is no evidence that petitioner did not want the other persons he had named to testify other than Payne's assertion that he had arranged for their removal from prison in order to give them a free ride. One Willie Campbell could have testified about petitioner's family.
As the findings of the referee and the evidence above reflect, Shinn's incompetent failure to marshal mitigating evidence and his use of a mental health expert who described petitioner as a sociopath with an antisocial personality, left the jury with the impression that nothing in petitioner's background contributed to his conduct or warranted sympathy.
K. Did trial counsel have a tactical reason for introducing or displaying exhibits A, C, and D to the jury, and, if so, what was that reason?
Findings: "Shinn had apparent tactical reasons for utilizing Exhibits A, C and D during petitioner's trial.
"Exhibit A is a photograph of the victim police officer, Paul Verna. While it may have been displayed earlier to the jury during the prosecution's opening, Shinn chose to utilize the photograph in an attempt, as Shinn described, to shock Pamela Cummings into telling the truth about the case. Payne corroborated this explanation. Shinn explained that this was a tactic that had been utilized - albeit unsuccessfully - in the Charles Manson case by the defense [fn
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