Mark Christopher Crew was convicted of murder and grand theft, with a jury determining that the murder was committed for financial gain, resulting in a death sentence. Following this conviction, Crew sought relief through a habeas corpus petition, claiming ineffective assistance of counsel during the penalty phase due to inadequate investigation and presentation of mitigating evidence. The California Supreme Court issued an order to show cause regarding this claim and appointed a referee to conduct an evidentiary hearing to investigate several key issues, including the scope of the trial counsel's investigation and the potential mitigating evidence that could have been presented. After a four-day hearing with 12 witnesses, the referee submitted a detailed report with factual findings. However, upon reviewing the record and the referee's report, the court concluded that Crew had not demonstrated entitlement to habeas corpus relief.
In the guilt phase, evidence revealed that Crew had a tumultuous relationship with murder victim Nancy Jo Wilhelmi Andrade. Their relationship included discussions about killing Nancy, and despite marrying her in June 1982, Crew continued to pursue other romantic interests.
Petitioner and Nancy did not marry. In July 1982, petitioner moved to Greer, South Carolina, with Elander while Nancy remained in California. During a trip to Greer, Nancy spent the night with petitioner. Following this, petitioner expressed intentions to kill Nancy to his stepfather, Bergin Mosteller, and discussed methods with Elander. After returning to California, Nancy frequently communicated with petitioner and decided to move to South Carolina, withdrawing $10,500 in cash and obtaining a $2,500 money order.
On August 21, 1982, while staying with Darlene, Nancy was picked up by petitioner and his stepfather, who planned to take her horse to Texas while she and petitioner would follow in her vehicles. They visited Nancy's parents on August 23 to collect her dog and belongings before departing for South Carolina. Petitioner registered at a motel in Fremont, California, and later visited Lisa Moody. On August 28, petitioner and Moody traveled to South Carolina, stopping in Texas where petitioner received an upsetting phone call.
Upon arriving in South Carolina, petitioner opened a bank account using Nancy’s money order. He, Elander, and Mosteller sold Nancy’s possessions. Petitioner recounted to Elander how he murdered Nancy after they left San Jose by shooting her in the head and disposing of her body in a ravine. Petitioner later returned to the murder scene with Bruce Gant to retrieve Nancy’s vehicle. After getting drunk, Gant attempted to further mutilate Nancy's body. They placed her remains in a 55-gallon drum filled with cement and buried it in Gant’s yard, while Nancy’s head was disposed of in the bay.
In mid-September, petitioner returned to California with Moody, sold Nancy’s truck by forging her signature, and later sold her Corvette. When asked about the title for the Corvette, Elander disclosed to the buyer that petitioner had killed Nancy and disposed of her body.
In January 1983, the petitioner relocated to Connecticut and informed Jeanne Meskell, a former romantic partner, that he had killed a girl, with her body allegedly divided and disposed of in cement-filled drums—one in San Francisco Bay and the other in a backyard. Police investigations at the petitioner’s residence yielded no evidence, and the victim's body was never recovered.
During the penalty phase of the capital trial, both parties agreed that the petitioner had no prior felony convictions. The prosecution did not present further evidence, while the petitioner highlighted his positive attributes through testimonies about his childhood, military service, and relationships. He was born in 1954, moved several times during his childhood, and had a stable upbringing without physical abuse. After joining the Army at 17, he rose to the rank of sergeant and was recognized for his intelligence and reliability. Petitioner married twice and fathered a daughter, with both marriages ending in divorce.
Witnesses testified to the petitioner’s caring nature, including his support for financially struggling individuals and his responsible behavior while in jail. A former corrections head opined that the petitioner would not pose a high security risk if sentenced to life imprisonment without parole. In rebuttal, the prosecution introduced testimony from a jail informant indicating the petitioner had expressed a desire to escape due to anticipated guilt in the murder case.
At a subsequent habeas corpus reference hearing, it was revealed that the petitioner’s trial attorney, Joseph O’Sullivan, requested a delay due to personal issues, leading to the trial being postponed to April 1989. Joseph Morehead, an inexperienced attorney in death penalty cases, became co-counsel for the trial, with O’Sullivan having made little preparation for the penalty phase prior to Morehead’s appointment.
O'Sullivan conducted multiple meetings with the petitioner, seeking to understand his background and ensure no defense elements were overlooked, while explaining 'mitigating evidence' using relevant Penal Code statutes. Prior to trial, second counsel Morehead engaged with the petitioner’s family, including his grandmother and father, who described the petitioner’s childhood as normal until his father's remarriage. The father characterized the petitioner’s mother as 'cold and withdrawn' but did not disclose any sexual abuse. In preparing for the penalty phase, Morehead discussed potential evidence with the petitioner and learned that he had a good life until his parents' divorce, along with struggles with drug abuse and relationships, but there was no mention of sexual abuse or a sexually charged environment.
Morehead focused on three categories of mitigating evidence for the penalty phase: the petitioner’s positive background without a criminal history, the nature of his relationships with women, and his exemplary behavior as a prisoner. In February 1989, Morehead hired investigator John A. Murphy, who initially focused on the guilt phase until July 1989, when he began discussing the development of mitigating evidence. Murphy met with the petitioner several times but did not inquire about his family life. The petitioner provided no negative information about himself or his family. Murphy's role included locating witnesses and records relevant to the petitioner’s background, as well as finding an expert to testify about his adaptability to prison life.
Morehead had minimal contact with the petitioner’s mother, meeting her only once during the guilt phase. He sought evaluations from psychiatrist Frederick James Phillips and addiction expert Dr. David E. Smith, but ultimately chose not to present them at the penalty phase to avoid revisiting sensitive murder details during prosecution cross-examinations.
Morehead did not provide expert testimony during the trial's guilt or penalty phases. In April 1989, he filed a motion to dismiss the special circumstance allegation that the murder was committed for financial gain. The trial court expressed initial concerns about this allegation but deferred a ruling until after trial testimony. A memorandum from the court's law clerk recommended striking the allegation; however, the motion was ultimately denied on July 17, 1989, after the prosecution rested its case. During a 2007 habeas corpus evidentiary hearing, the referee noted that Morehead believed he had a strong basis for the motion, especially given the court's earlier reservations. Following the denial, Morehead recognized the potential for a penalty phase, which began on August 1, 1989.
In the penalty phase, the defense highlighted the petitioner's stable upbringing, military success, and potential for good behavior in prison. This evidence allowed the prosecution to argue that the petitioner had misused his advantages to commit significant wrongdoing. Additionally, clinical psychologist Larry Allen Morris provided expert testimony at the reference hearing regarding the petitioner's background and the potential impact of childhood sexual abuse. Dr. Morris reviewed various records and interviewed multiple witnesses, concluding that the petitioner's history indicated a prevalence of sexual abuse within the family, which could have influenced his development and behavior.
Dr. Morris testified that the petitioner’s father married the petitioner’s mother when they were 17 and 16 years old, respectively. The father frequently left home and engaged in extramarital affairs, while the mother exhibited signs of depression and withdrawal. During the 1960s, when the petitioner was a teenager, he was sexually exploited by his maternal grandfather, Jack Richardson, who encouraged sexual activities with young girls. Following the parents' divorce in 1969, the petitioner lived with his father, who remarried in 1970 and continued to drink heavily, hosting sexually charged parties attended by the petitioner and his friends. The father also molested his second wife's daughter for six years.
Dr. Morris revealed that from a young age, the petitioner experienced inappropriate behavior from his mother, including being bathed in a suggestive manner and being brought into her bed where she would engage in inappropriate physical contact. Encouraged by his grandfather, the petitioner had sexual experiences with older women and began substance abuse in junior high school, which escalated into adulthood, particularly before the murder in question. Dr. Morris concluded that the petitioner endured sexual abuse and was raised in an oversexualized environment, suggesting these factors warranted a defense investigation into possible child molestation.
On cross-examination, Dr. Morris acknowledged that the petitioner’s behaviors could also indicate antisocial personality disorder and noted the lack of external evidence of sexual abuse. Psychiatrist Frederick James Phillips, who evaluated the petitioner at the time of the murder trial for mental status, spent only 20 minutes with him and did not learn about any family mental illness history. He did not report findings to the trial counsel, stating there was no useful information to provide.
Phillips conducted an interview with the petitioner at jail, asking general questions about his upbringing, to which the petitioner described his childhood as typical, without negative remarks about his parents. Dr. Phillips indicated that, had he known of the sexual abuse within the petitioner’s family and the petitioner’s mental health issues, he might have concluded that the petitioner had been sexually abused. Dr. David E. Smith, an expert in addiction medicine, was consulted post-sentencing about the impact of the petitioner’s drug and alcohol abuse on his mental state. Dr. Smith assessed that the petitioner suffered from drug and alcohol dependence and was genetically predisposed to these issues and depression, which had severely impacted his psychological development and decision-making. He stated that had he been aware of the petitioner’s history, he would have advised trial counsel to pursue a thorough examination of the petitioner’s medical and psychological background to support mitigation efforts.
Additional testimony at the reference hearing included statements from the petitioner’s former girlfriend, Cynthia Pullman, who noted his heavy drinking, cocaine use, insomnia, sexual dysfunction, and depression. Emily Vander Pauwert, a previous defense witness, recounted the petitioner’s excessive drinking with his father and his depressive episodes, describing the petitioner’s mother as distant and abusive. Patricia Silva, the petitioner’s first wife, testified to his drug and alcohol use during high school and throughout their marriage, noting his severe mood swings and excessive sleeping. Lastly, Doug Tompkins, the petitioner’s stepbrother, recounted witnessing inappropriate behavior from the petitioner’s father towards a young girl, hinting at the possibility of familial abuse.
Tompkins observed that the petitioner rarely got drunk and smoked marijuana only a few times, but he never witnessed any use of cocaine or amphetamines. The deposition of Eddie Richardson, the petitioner’s uncle, revealed a history of physical abuse by their grandfather, who also had sexual relations with young girls. Richardson's sister, the petitioner’s mother, claimed she was sexually molested by their father, though he had no knowledge of any sexual abuse by her towards her children, which he deemed out of character. John Turner, the grandson of the petitioner’s grandfather, corroborated allegations of molestation by him. Two women testified that Eddie Richardson had molested them during their youth. Forensic psychologist Daniel Martell testified for the prosecution, stating he could not conclude whether the petitioner’s mother had sexually abused him, highlighting that symptoms of depression and substance abuse are not specific to sexual abuse and could be associated with other disorders. Martell deemed it “farfetched” to suggest that the symptoms were indicative of maternal sexual abuse, stating that competent mental health professionals would not typically investigate such abuse in mothers. He also noted evidence of sexual abuse among the petitioner’s male relatives but found no indication of male abuse.
The court's reference order directed a referee to conduct an evidentiary hearing and answer seven specific questions regarding the investigation of potentially mitigating evidence during the petitioner’s capital trial. The referee found that trial counsel was aware of the petitioner’s lack of criminal history, relatively normal childhood, substance abuse issues, troubled relationships, and mental health struggles. The investigation conducted by lead trial counsel O’Sullivan was minimal, relying on the petitioner’s input without extensive inquiry into his background. Second trial counsel Morehead focused on positive aspects of the petitioner’s life, while the defense investigator began looking for mitigating evidence only shortly before the penalty phase, without consulting the petitioner about his family life or background.
Trial counsel's tactical justifications for limiting the investigation and presentation of mitigating evidence during the penalty phase were examined, revealing no articulated reasons from lead counsel O’Sullivan or second counsel Morehead. Morehead opted against presenting mental health expert testimony due to concerns that cross-examination would highlight the murder facts. The referee assessed potential additional mitigating evidence and found significant familial issues, including sexual abuse by petitioner’s father and maternal grandfather, alongside a troubling history of drug and alcohol abuse, and mental illness within the family. Petitioner himself experienced depression, anxiety, and other psychological issues, exacerbated by early sexual abuse and a dysfunctional environment. Dr. Morris's declaration indicated that the sexual abuse and exposure to inappropriate experiences severely impacted petitioner’s emotional and sexual development. Dr. Smith confirmed that petitioner suffered from chronic substance dependence related to his traumatic upbringing. The referee deemed the evidence presented credible and valid. Regarding investigative steps, the referee indicated that trial counsel could have uncovered additional mitigating evidence through witness interviews and document reviews, similar to the efforts made by habeas corpus counsel, and suggested retaining an expert on male sexual abuse victims.
The referee evaluated whether any factors impeded the defense's investigation or presentation of additional mitigating evidence during the penalty phase of the trial. Findings revealed that lead attorney O’Sullivan did not conduct a penalty phase investigation, delegating the task to second counsel Morehead, whose other responsibilities delayed his involvement until after the guilt phase commenced. Both attorneys anticipated the trial court would dismiss the special circumstance allegation related to financial gain, which would negate the need for a penalty phase. However, this expectation was proven incorrect when the trial court declined to strike the allegation, leading to the realization that a penalty phase was unavoidable. Defense investigator Murphy only started his investigation for the penalty phase in early July 1989.
The referee also identified potential damaging evidence the prosecution might have introduced, including testimony from Dr. Martell, who could argue that the petitioner's symptoms were common among the prison population and supportive of an antisocial personality diagnosis, contradicting the defense’s theory of childhood sexual abuse.
In response to whether the petitioner hindered the defense’s efforts to present mitigating evidence, the referee found that while the petitioner did not disclose his childhood sexual abuse to his counsel, there was no indication he obstructed the investigation or requested that mitigating evidence be withheld.
The referee summarized the mitigating evidence presented at the hearing, indicating that the petitioner’s background was marked by significant dysfunction, including incest, abuse, mental illness, and substance abuse.
Petitioner challenged the referee's conclusion regarding Morehead's concern that presenting mental health evidence might reinforce the facts of the crime. The petitioner argued that this finding was not pertinent to the inquiry since the crime's facts were already established during the guilt phase. However, the referee's finding was also relevant to a different inquiry regarding the tactical decisions of trial counsel, thus rendering the petitioner's challenge ineffective in altering the review of the matter.
Petitioner contests the referee’s conclusion that Dr. Martell's testimony indicated his symptoms were as consistent with antisocial personality disorder (ASPD) as with sexual abuse. He asserts that he cannot be diagnosed with ASPD because he did not exhibit a conduct disorder before age 15, supported by Dr. Morris's testimony. However, Dr. Morris also acknowledged on cross-examination that petitioner's symptoms aligned with ASPD. The referee's agreement with Dr. Martell's assessment, which considered the petitioner's history and Dr. Morris's findings, highlights that the evidence does not support the claim that it was undisputed he could not be diagnosed with ASPD.
The Attorney General challenges five of the referee’s findings regarding the credibility of mitigating evidence, particularly Dr. Morris's assertion of the petitioner’s sexual abuse by his mother. The Attorney General argues that the referee improperly denied a motion for a psychodiagnostic evaluation by its expert, which is permissible when the petitioner raises his mental state as an issue in a capital case. Additionally, the Attorney General contends that the referee erred in denying the request to call the petitioner as a witness during the reference hearing, clarifying that a petitioner cannot refuse to testify in such proceedings, as their testimony could be relevant.
A habeas corpus petitioner must demonstrate sufficient grounds for relief, specifically proving claims of ineffective assistance of trial counsel during the penalty phase. In this case, the petitioner needed to substantiate allegations regarding his childhood sexual abuse by his mother, particularly why he failed to mention this abuse from 1985 to 2002. The Attorney General's questioning at the reference hearing could have been critical for assessing the petitioner’s credibility and whether trial counsel could have discovered evidence of the abuse, which may have impacted the penalty phase outcome.
The Attorney General argued that the referee improperly limited cross-examination of Emily Vander Pauwert, a defense witness who testified about the petitioner’s character and relationships. When the Attorney General inquired whether the petitioner provided inconsistent accounts of his wife's death, the referee sustained an objection based on relevance. The Attorney General contended that this line of questioning was pertinent to the petitioner’s credibility and moral culpability, which were central to the reference hearing.
Additionally, the Attorney General claimed the referee erred by not allowing questions during direct examination of prosecution psychologist Dr. Martell regarding the lack of a causal link between the alleged childhood sexual abuse and the petitioner’s murder. The Attorney General sought to establish whether, based on professional literature from 1989, there was a statistically significant risk for a male who had experienced such abuse to commit premeditated murder. The referee did not permit this line of questioning.
Petitioner’s counsel objected to a question posed by the Attorney General to expert Dr. Martell, claiming it sought irrelevant evidence and lacked any connection to the offense. The referee upheld the objection, acknowledging that the petitioner had previously conceded there was no causal link between his childhood abuse and the murder of his wife, Nancy. The Attorney General contended this evidentiary ruling represented a misuse of discretion. However, the ruling was found appropriate, as rebuttal evidence is within the referee's discretion and the objection was justified based on the petitioner’s earlier concession.
Additionally, the Attorney General challenged the referee's decision to sustain objections during cross-examination of Dr. Morris regarding the petitioner’s motivations for the murder. The referee deemed the questions inappropriate, as they did not pertain to Dr. Morris’s testimony, and the Attorney General's assertion of them being relevant rebuttal questions was not upheld.
The referee also concluded that the petitioner did not obstruct his trial counsel's penalty phase investigation, finding no evidence that he communicated his history of sexual abuse or requested specific mitigating evidence be omitted. The Attorney General countered this finding, arguing that the petitioner hindered the investigation by not disclosing his abuse and claiming a normal childhood until his parents’ divorce. This perspective aligns with the principle that a defendant's statements and actions can impact counsel's investigative decisions, indicating that silence or lack of disclosure can obstruct legal representation.
In re Andrews (2002) establishes that whether a defendant's statements or nondisclosures obstruct trial counsel's investigation is case-specific. Lead trial counsel O'Sullivan engaged with the petitioner regularly, inquiring about his background and any issues that might be relevant, yet the petitioner did not disclose critical information regarding childhood sexual abuse by his mother. This information only emerged 17 years post-charge during an interview with an expert. Counsel Morehead, responsible for the penalty phase, also did not receive any indication of the abuse, as the petitioner described his childhood as normal until his parents' divorce. Consequently, it was concluded that the petitioner hindered his counsel's investigation.
Regarding habeas corpus petitions, the burden lies with the petitioner to demonstrate sufficient grounds for relief, requiring proof by a preponderance of the evidence. The petitioner claims ineffective assistance of counsel under both the U.S. and California constitutions, alleging that counsel's performance during the penalty phase was inadequate. To succeed, the petitioner must show that counsel's representation fell below reasonable professional standards and that this deficiency prejudiced the outcome of the trial. A lack of prejudice alone can suffice to dismiss the claim without assessing performance deficiency. The central issue for the petitioner is the failure to present mitigating evidence of the alleged childhood sexual abuse.
Petitioner contends that defense counsel failed to uncover and present evidence of childhood sexual abuse by his mother to the jury. However, the court does not need to assess whether defense counsel's performance was inadequate, as petitioner has not demonstrated any resulting prejudice. Despite multiple pretrial meetings where defense counsel discussed the penalty phase and solicited information about petitioner’s background, he did not disclose any abuse, instead characterizing his childhood as normal. This characterization was corroborated by his father and by statements made to a defense psychiatrist, Dr. Phillips. Petitioner only mentioned the abuse 17 years after being charged, during an interview with expert Dr. Morris, while his former wife and other witnesses indicated he had not previously mentioned such abuse. Additionally, a family member denied any knowledge of the alleged abuse, stating it was out of character for the mother. Statements made by petitioner to Dr. Morris cannot substantiate the truth of the alleged abuse. At the reference hearing, although petitioner argued that a competent mental health professional could have uncovered the abuse, the evidence presented did not directly support his claims. Dr. Morris testified that symptoms exhibited by petitioner suggested a potential for past abuse, but this was not definitive. Dr. Phillips noted that had he known of petitioner's history, he might have inferred abuse, though this was not a certainty. In contrast, the prosecution's expert, Dr. Martell, disagreed with these interpretations. Thus, the petitioner did not provide conclusive evidence of maternal sexual abuse at the reference hearing.
Dr. Martell testified that the petitioner's symptoms were indicative of antisocial personality disorder rather than sexual abuse, a diagnosis frequently seen in the prison population. He opined that a competent mental health professional would not have suspected maternal sexual abuse due to its rarity and the lack of relevant professional literature. Martell noted that historical patterns in the petitioner's family suggested he exploited women but did not indicate he was sexually abused as a child. Even assuming a competent professional would have inquired about potential abuse, the petitioner failed to prove that such evidence would have been uncovered, as he did not disclose any abuse to his trial counsel until 17 years post-arrest, during an interview with Dr. Morris.
The document further addresses the petitioner's claim that his trial counsel's failure to present mitigating evidence about his troubled family background constituted ineffective assistance. Although the referee acknowledged credible evidence of an abusive and dysfunctional upbringing, the court emphasized that family history alone is not significant unless it directly relates to the defendant. Much of the family background evidence presented was not connected to the petitioner, as he lacked awareness of past abuses until after his trial. While some evidence did pertain to his own experiences, such as a cold relationship with his mother and exposure to substance abuse, there was no indication that he faced poverty or physical violence during his upbringing. Consequently, the petitioner did not demonstrate that trial counsel's failure to investigate or present this evidence resulted in prejudice.
The court evaluated whether the petitioner was prejudiced by his trial counsel's failure to present certain mitigating evidence during the penalty phase of his capital trial. The relevant evidence was analyzed alongside the aggravating factors presented. The court concluded that the petitioner was not prejudiced, noting that while the evidence of his dysfunctional family might have generated some jury sympathy, it did not establish a causal link to his calculated decision to murder his wife for financial gain. The petitioner, in his late twenties at the time of the murder, had previously maintained good relationships and served honorably in the military, indicating he was capable of functioning as a law-abiding citizen. Consequently, the court found no reasonable probability that the outcome would have differed had the counsel presented the mitigating evidence. The court denied the petitioner's request for habeas corpus relief based on ineffective assistance of counsel, as the claims were limited to this issue. The order to show cause was discharged, and any additional claims not addressed in this ruling would be resolved separately. The request for disclosure of communications involving a recused judge was also denied.
