P. v. Farrell

Filed 10/15/07 P. v. Farrell CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

Following a tumultuous history of family strife, defendant Zachariah Joseph Farrell shot and killed his father Bernard Farrell as he emerged from his residence. Defendant claimed that his father came out of his trailer firing his rifle before defendant felled him with a shotgun blast. The jury convicted defendant of second degree murder (Pen. Code,  189)^[1]and found true enhancements for infliction of great bodily injury with a firearm ( 12022.53, subd. (d)), and use of a firearm ( 12022.5, subd. (a)).

Following the verdict, defendant made a motion for new trial based on ineffective assistance of counsel. The moving papers revealed that defense counsel had overlooked a crucial Department of Justice laboratory report that contained findings supporting defendants version of the shooting and lent credence to his claims of perfect and imperfect self-defense.

Although the trial court denied the new trial motion, we shall conclude that defendant was deprived of his constitutional right to effective assistance and that this deprivation resulted in the withdrawal of a potentially meritorious defense, undermining our confidence in the verdict. We shall therefore reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Family history

Lynda Kersey, the wife of victim Bernard Farrell, was married to him for 20 years until they separated in 2001. Defendant, one of their children, was born in 1983.

Bernard^[2]had been diagnosed with bipolar disorder. His personality could change instantly from being very nice to ferocious and violent. Bernard was subject to episodes of explosive rage, including one instance in which he shoved a rifle into a mans chest and pulled the trigger. Bernard also threatened his father-in-laws life on several occasions. A neighbor once overheard Bernard instruct his children to use a gun he kept by the front door to shoot anyone who came down the driveway towards their trailer.

Defendant often intervened when his father went off the deep end. When defendant was five years old, he saw Bernard punch his mother in the face. Defendant seized a baseball bat and threatened his father with it, until Bernard stomped off.

When defendant was in high school, he overheard an argument between his parents, during which Bernard threatened to kill his mother. Defendant heard his father pull two rifles out of the closet and begin loading them with ammunition. Frightened, defendant grabbed a .22-caliber gun. Bernard confronted defendant, smacked him, threw him over a chair, and told him to get in the truck. Defendant pointed the gun at his father, ordered him to get the fuck out of the house right now, and told his mother to call the police. In his final year of high school, defendant moved in with his maternal grandparents.

Defendant was present when Bernard wanted to shoot a neighbor who had almost run him off the road. With the help of others, defendant succeeded in calming him down.

During a drunken argument with another neighbor, Robert Clements, Bernard threatened to get his gun and kill [the] whole bunch of you. Bernard approached Clements with a doubled-up fist, but defendant intervened, saying, come on, dad, you dont want to do this.

About three months before Bernards death, defendant became very depressed and told his mother that he felt some day he would have to kill his father and that he might have to flee from the police or commit suicide afterwards.

Likewise, Bernard told a close family friend on at least two or three occasions that he felt some day defendant would kill him.

The day of the shooting

As of November 4, 2002, Lynda and Bernard were separated. Lynda was living with their three daughters in Redding, while Bernard had his own residence in Whitmore. Defendant, who had joined the Marines after high school, became a deserter following a physical altercation with a superior officer. On the day of the shooting, he was living temporarily at his mothers residence.

That morning, Bernard called Lynda in Redding. After speaking briefly with defendant about coming to Bernards house to help him butcher some pigs, Bernard had a pleasant conversation with Lynda.

Later in the day, Bernards mood noticeably darkened. He called Lyndas residence approximately fifteen times over a 15- to 20-minute period, sometimes asking for Lynda, sometimes asking for defendant. When defendant began hanging up on his father, Bernard left messages on the answering machine, yelling at defendant, accusing Lynda of sleeping around and defendant of driving a stolen truck, and calling defendant a little bitch.

According to defendants sister Marie, Bernard sounded almost satanic. Like really low-pitched. Like a growl was in his voice. She knew that when their father got in one of his moods, he would make threats and carry them out by being physically abusive. Defendant told Marie that dad was acting up again and he was going to go to see his father and protect his family.

Later that day, defendant showed up at his maternal grandparents house. When he arrived, Marilyn Thomas, his maternal grandmother, was listening to Bernard leaving a second rambling message on her answering machine, railing against Lynda for having unsafe sex with other men. Defendant entered the house and could hear Bernards disturbing tirade on the answering machine. Defendant proceeded to the back of the house, where he retrieved a 12-gauge shotgun from his grandfathers gun cabinet, which he selected because it was the only one with ammunition laying around. When later interviewed, defendant stated that his grandmother said, Dont go up there. I dont want you to do anything stupid. And he replied, Im not, grandma. Im just going to talk to him, okay. I just want to figure out whats going on. Marilyn told defendant, Zach, no, to which he replied, [G]randma, Im sorry, and departed.

Marilyn called 911 at 2:25 p.m. and told the dispatcher she feared defendant was going to do something serious to his dad or to himself. Shasta County Sheriffs Deputy Lance Highet contacted Marilyn. She told Highet she feared defendant was on his way to kill his father.

Deputy Highet, accompanied by two other deputies, drove to Bernards residence in response to Marilyns 911 call. He told Bernard about his sons behavior and asked him if he was concerned. Bernard replied that he was not, that he did not believe his son had access to any guns, but his demeanor was nervous and jittery. Highet told Bernard that if his son showed up, he should call 911 and stay inside his residence. Highet also advised Bernard that he had a right to protect himself, if necessary.

Lynda returned to her residence around 3:00 or 3:30 p.m. to find her daughter Marie in tears. Marie told her Bernard had been calling all day, that defendant was going over to Bernards residence and that she feared something bad was going to happen. Bernard called Lynda quite a few times that afternoon and Lynda quit answering the phone. At 5:56 p.m. Lynda called 911 and informed them that defendant was going to Bernards house, that they both had guns, and that she was afraid they were going to fight.

That afternoon, Bernard showed up at the residence of a neighbor, Steven Snyder. He was upset and crying, and said he wanted to commit suicide. He gave Snyder a suitcase with marijuana and instructed him to give it to his daughter Marie, because Bernard was going to die that day. He lamented that everyone wanted to kill him, even defendant.

At 4:00 p.m., Bernard left a text message on his sister Cindy Morffs pager that said: I cannot explain, I am on the run, the cops are looking for Zach, he has threatened to kill me, I will call you later. Love, Bernie.

The shooting

About 5:30 p.m., Morff called Bernard, who was extremely depressed, inconsolable, and sobbing uncontrollably, because the police had told him that defendant was on his way up to the property with a gun. The conversation lasted about 30 minutes. Just before it ended, Morff heard a dog bark and then stop. Bernard told his sister he thought that meant defendant was outside the house, since his dog would not bark at defendant. Morff begged Bernard to stay inside, but he told her he did not think his son would go through with this, and that he was going outside.

At 5:59 p.m., defendant called 911 and told the dispatcher he had just shot his father, and Hes dying on me. Defendant explained that Bernard had come out of the trailer and tried to shoot him first, but that he (defendant) got him in the shoulder . . . from the back. He explained that his father had been threatening my mom and threatening my sisters, and had threatened him that day so defendant had come to the property to talk to his father about it. He told the operator that both his gun and his fathers were inside the house.

The aftermath‑‑defendants version

Defendant was taken to the sheriffs office, where he gave three interviews to sheriffs detectives. Defendant told detectives that Bernard telephoned numerous times that day and left abusive messages on the answering machine. His father kept calling him a little bitch. During their last phone conversation, Bernard told him, Dont come up here. Ill shoot you if you come up here.

Defendant recalled that, after hearing his father swear at his grandmother over the phone, he realized his dad was losing it and retrieved a shotgun from the gun cabinet. Defendant felt it was his father against his mother and sisters, and that he had to stand up for his family. He denied harboring an intent to kill his father, claiming he drove to Bernards residence with the intent to talk to him and to prove himself.

Defendant explained that he parked his vehicle off the main road, about a mile away, and walked in because Bernard had threatened to shoot [him] if he drove up. [He] figured . . . if [he] just show[ed] up he could say, Hey dad, . . . Im here as a . . . I want to talk to you about this. But as defendant approached the back of the house, the dog barked and Bernard emerged with a rifle, yelled Is that you, Zach? and started shooting in his direction from about 15 to 20 yards away. In the darkness, defendant saw the flash from the muzzle of Bernards rifle and heard him fire three rounds. He did not have time to think or say anything because Bernard started shooting right then. As Bernard started to turn around, defendant just raised up [his shotgun] and shot back at him, firing twice, striking him once in the back of his shoulder.

Trial

Defendants testimony at trial was generally consistent with his pretrial statements to investigators. He testified that he first saw his father from the back from 10 to 20 feet away, as Bernard came down from the porch firing his rifle. When Bernard turned in defendants direction, he pulled up and fired two rounds from his shotgun. He approached his fathers fallen body and noticed Bernard still had the rifle in his arms, so defendant struck him in the arm and left shoulder with the barrel of the shotgun. He then smashed the shotgun into the ground in frustration, breaking off the barrel. He took the rifle and threw it about 10 feet up the driveway, to get it out of his reach.^[3] He gathered up the shotgun barrel and rifle and put them in the house. After futilely attempting to resuscitate his father, he phoned 911.

Forensic evidence

Sheriffs deputies found Bernard dead, with a shotgun wound to the left shoulder. A 12-gauge, model 31 Remington shotgun with a missing stock and a Ruger 10/22 rifle were found inside the residence on the floor of the living room. Part of the shotgun stock was found near the victim. Both defendants and Bernards fingerprints were found on the rifle.

Laboratory tests showed Bernard had a blood alcohol level of 0.17 percent and a low-level antidepressant medication in his system at the time of his death.

An autopsy of the body showed that Bernard had been killed by a shotgun blast from the back. The forensic pathologist testified that Bernards body was at a 45-degree angle from the barrel of the shotgun. He opined that the victim had his arms raised in some fashion and was probably crouched over at the time the fatal shot was fired.

Department of Justice Senior Criminalist Michael Barnes opined that a lot of force was used to break the shotgun apart and that the victims blood streaks on the shotgun indicated he was struck with it, as if it were a club. A .22-caliber cartridge case was found about 15 or 20 feet from Bernards body. Other cartridge cases were found a farther distance away. Barnes testified that had Bernard been firing the Ruger 10/22 rifle where he was found, he would have expected to find rifle cartridges closer to the body.^[4]

Defendant, who was represented at trial by Deputy Public Defender James Dippery, advanced the theory that the shooting of Bernard was self-defense. Relying on the evidence of Bernards propensity for extreme mood swings, threats of violence, and suicidal statements on the day of his death, as well as defendants believability on the witness stand, Attorney Dippery argued that Bernard came down from the porch shooting and shouting. He argued that defendant had a right to defend himself, or at the least, held an unreasonable belief in such a right, in which case he would be guilty only of manslaughter.

The prosecutor, Brent Ledford, exhorted the jury to find defendant guilty of premeditated murder, asserting that defendant simply executed his father that night. Ledford contended that defendants self-defense claim was a sham and that the physical evidence supported only one verdict‑‑first degree murder. Specifically, Ledford argued that the absence of .22-caliber shells in the vicinity of the body eliminated the possibility that Bernard came down from the porch shooting, and the lack of damage to the rifle discredited defendants testimony that he threw it down the gravel driveway afterwards. Concluded Ledford: Because the physical evidence is so overwhelming against him and so forceful that hes got to switch his story around a little bit to make it sound feasible. . . . [I]t didnt happen like Zach said it happened. It didnt happen like [defendant] said it happened. My scenario is much more fitting with the physical evidence that we have. The physical evidence proves a lot of things to you.

The court instructed the jury on theories of both self-defense and imperfect self-defense. The jury returned with a verdict of second degree murder.

First motion for new trial

An initial motion for new trial was denied. While conferring with defendant following this ruling, Attorney Dippery discovered that defendant had in his possession a Department of Justice report (DOJ report) prepared by the same criminalist, Michael Barnes, who had testified at trial. The DOJ report had been supplied to defendant by his former appointed counsel, but Dippery never became aware of it. The report contained key findings that supported defendants case but were never disclosed to the jury.

Second motion for new trial

Thus, a second motion for new trial was filed based on ineffective assistance of counsel and prosecutorial misconduct. After a full hearing, the details of which are discussed below, the trial court denied the second motion for new trial.

Defendant was sentenced to state prison for 15 years to life with the possibility of parole for the second degree murder and 25 years to life for the firearm use and intentional use of firearm enhancements.

DISCUSSION

Defendant contends that, regardless of whether the trial court abused its discretion in denying the motions for new trial, the record developed at the second new trial motion demonstrates that he was denied his right to constitutionally effective assistance of counsel. For the reasons that follow, we agree.

I. Evidence Adduced in the Second Motion for New Trial

In support of defendants second new trial motion, Attorney Dippery filed a declaration and also testified at the hearing. Dippery stated that he was assigned to take over the case from another public defender in August 2005. He attempted to obtain a continuance until mid-January 2006, but eventually agreed to an earlier date of December 7, 2005. In his haste to prepare for trial, Dippery overlooked the discovery pages containing the DOJ report prepared by Criminalist Barnes.

The DOJ report, which was attached to the moving papers, contained two findings that would have greatly aided the defense: First, Criminalist Barness examination of the rifle revealed small, round blood stains on the stock and barrel, which indicate that the rifle was in the vicinity of the victim at the time of the shooting. Second, Barnes found physical damage, i.e., small indentations on the left side of the rifles stock. Barnes concluded that one explanation for the marks was that the rifle made contact with the gravel driveway with sufficient force to cause the damage.

Attorney Dippery explained that, throughout the trial, he was concerned about the lack of physical evidence supporting his clients claims that Bernard came out of his home firing the .22-caliber rifle and that defendant threw the rifle down the gravel driveway after the shooting. Because he was unaware of the DOJ report, Dippery did not conduct an independent examination of the rifle. Nor, obviously, did he cross-examine Criminalist Barnes concerning his findings.

Criminalist Barnes was called to testify at the hearing on the second motion for new trial. He confirmed that the small, round blood stains on the rifle meant that it was very close to the victim when he was shot. However, Barnes backtracked somewhat from his written conclusion that the small indentations on the rifle could have been caused by forceful contact with the gravel driveway. Instead, he stated that it was far more probable that the damage was caused by a ricochet. He conceded, however, that the marks could have been caused by contact with the gravel if the rifle had been thrown down forcefully in a very controlled manner.

The trial court denied the second motion for new trial, noting that the verdict was solid and the jurors could have examined the rifle for themselves.

II. Principles of Review

A defendant in a criminal trial has a right under the Sixth Amendment of the United States Constitution and section 15 of article I of the California Constitution, to the effective assistance of reasonably competent counsel. (People v. Nation (1980) 26 Cal.3d 169, 178.) This right, which is also grounded in the due process right to a fair trial, focuses on the quality of the representation provided the accused. (Ibid.)

To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the petitioner. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Jones (1996) 13 Cal.4th 552, 561 (Jones); see also Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)

Ordinarily, appellate courts are wary of claims casting aspersions on counsel when counsel is not in a position to defend his conduct, relegating the defendant to pursue his claim of ineffective assistance by way of a habeas corpus proceeding. (People v. Hinds (2003) 108 Cal.App.4th 897, 902, citing People v. Wilson (1992) 3 Cal.4th 926, 936.) However, a posttrial motion that gives counsel the opportunity to explain his actions may provide a sufficient record from which to determine whether his omissions resulted from an informed tactical choice within the range of reasonable competence. (People v. Bess (1984) 153 Cal.App.3d 1053, 1059 (Bess), citing People v. Pope (1979) 23 Cal.3d 412, 425.) Defendants second motion for new trial, wherein an evidentiary hearing was held and counsel was able to fully explain his actions and inaction, provides such a record here.

III. Counsels Duty to Investigate

Ordinarily, appellate review of trial counsels performance is deferential. (In re Cordero (1988) 46 Cal.3d 161, 180.) It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. (Jones, supra, 13 Cal.4th at p. 561, quoting Strickland, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695].)

The rules of the game change significantly, however, where ineffective assistance manifests itself in a failure to adequately investigate the facts and prepare for trial.

[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation. (In re Marquez (1992) 1 Cal.4th 584, 602; accord,In re Fields (1990) 51 Cal.3d 1063, 1069.) [W]hile acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, we stress that the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation. (In re Hall (1981) 30 Cal.3d 408, 426.)

Although  . . . the choice of which, and how many, of [the] potential witnesses [to call at trial] is precisely the type of choice which should not be subject to review by an appellate court [citation], trial counsel must accept the burden of investigating the facts surrounding criminal charges sufficient to make an informed decision. While  . . . we cannot presume prejudice from the mere fact of counsels alleged inaction (People v. Jackson (1980) 28 Cal.3d 264, 289 [disapproved on a different ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3]), reversal is compelled where appellant can demonstrate he was denied an adjudication on potentially meritorious issues due to counsels inadequate preparation. (Bess, supra, 153 Cal.App.3d at p. 1060, citing People v. Shaw (1984) 35 Cal.3d 535, first and second italics in original, third italics added.)

IV. Application of Law to Facts

Attorney Dipperys failure to investigate and discover the DOJ report affected the whole tenor of the trial and was devastating to the defense.

From the moment he dialed 911, defendant conceded that he shot his father. The only issues for the jury to decide were whether the homicide was excused by self-defense, or should be reduced to voluntary manslaughter by virtue of an honest but unreasonable perception of the need for self-defense. (See generally People v. Aris (1989) 215 Cal.App.3d 1178, 1186, disapproved on a different ground in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.)

The defense centered around the assertion that defendants father came out of his trailer shooting a rifle, causing defendant to fear for his life. Defendant also maintained that he threw the rifle up the gravel driveway after the shooting, in order to get it out of Bernards reach.

The DOJ report contained findings that supported both of these claims. There were circular blood stains on the rifle, indicating that Bernard must have had it very close to him when he was shot, and there were small indentations along the left side of the rifle stock consistent with it having struck the gravel with force.

Although he was in possession of the DOJ report, Prosecutor Ledford avoided asking Criminalist Barnes about blood or damage marks on the rifle. Yet in his closing argument, Ledford vigorously argued that the condition of the rifle conclusively proved defendant was a liar.^[5]

Believing erroneously that there were no marks on the rifle, Attorney Dippery resorted to the hypothesis that defendant may have thrown the rifle into an area with no gravel where it would not have been damaged. Ledford ridiculed this theory in his rebuttal argument: [Defense counsel] says, well, when [defendant] threw these [(the shotgun and the rifle)] down the driveway, it could have gone on to the grassy area right next to him. Youll see photos of that. Theres like a little area there. But I specifically‑‑because it was such an important thing because I knew what the conditions of the guns were when he was testifying, I knew what the conditions of the guns were. And I said, you threw it right down the middle of the driveway in the gravel? Yeah, I did. I questioned him on that point. And he was adamant about it. It doesnt comport. It never happened, folks. (Italics added.)

Similarly, Ledford denigrated the suggestion that Bernard was cradling a rifle when he was shot.^[6] He repeatedly disparaged the self-defense claim as incompatible with the physical evidence: Dad didnt try to kill [defendant]. Theres no physical evidence that comports with what [defendant] says.

Had defense counsel acted with diligence in discovering the DOJ report, the entire complexion of the trial would have changed. First, the favorable forensic evidence in the report could well have prompted a reasonably competent defense counsel to retain his own expert to examine the rifle.^[7] As it turned out, the jury heard from only one expert‑‑the Peoples.

Second, Attorney Dipperys cross-examination of Criminalist Barnes would no doubt have taken a much different direction than it did. Armed with the DOJ reports evidence of damage to the rifle consistent with controlled striking on a gravel surface and blood spots on the left side of the rifle consistent with Bernards having wielded it at the time of the shooting, the defense would have been able to present and develop important evidence which, contrary to Prosecutor Ledfords vituperative and misleading assertions in closing argument, independently corroborated two important aspects of defendants version of the events that day.

Of course, a reviewing court will always defer to the informed judgment of counsel on matters of tactics and strategy. But when, as in this case, the knowledge necessary to an informed tactical or strategic decision is absent because of counsels ineptitude or lack of industry, no such ground of justification is possible. (In re Hall, supra, 30 Cal.3d at pp. 427-428, quoting In re Saunders (1970) 2 Cal.3d 1033, 1042, fn. 7.) After all, even tactical decisions may demonstrate incompetence if made without the benefit of substantial factual inquiry. (People v. Frierson (1979) 25 Cal.3d 142, 163 (Frierson).)

The trial court denied the second motion for new trial because (1) the evidence of malice was strong; (2) the jury knew about the damage to the rifle and the prosecutor touched on that in closing argument; and (3) the rifle went into the jury room, and the marks were not invisible to the trier of fact. None of these reasons is persuasive.

First, the trial court was wrong in its recollection of the record. There was no testimony about or reference to damage to the rifle at trial. Not only did Prosecutor Ledford not mention the rifle damage in closing argument, he adamantly claimed that the rifle contained no damage, thus attempting to disprove defendants statement that it was thrown down the driveway. Had the DOJ report been introduced, Ledford would not have been able to make such an unqualified assertion.^[8]

Second, although the rifle did go into the jury room, it was covered with black fingerprint powder and wrapped in plastic. Even Attorney Dippery, who looked at the rifle before trial, failed to notice any damage. It is unrealistic and unreasonable to have expected the jurors to take the rifle out of its plastic seal, wipe off the fingerprint powder, and inspect it for markings that had meaning only when informed by qualified expert testimony.

That there was sufficient evidence that defendant harbored malice is beside the point. All defendant needed to do to avoid a murder verdict was raise a reasonable doubt as to whether he held a good faith perception of the need for self-defense. Through the DOJ report, defendant would have possessed independent evidence from which such doubt could have been raised, evidence that was sorely lacking at trial.

Finally, the trial court overlooked the importance of the DOJ criminalists report that there were blood spots on the left side of the rifle, spots that constituted important circumstantial evidence that Bernard was holding it when he was shot. This forensic evidence touched on a central aspect of the defense case‑‑that Bernard emerged from the residence armed with and pointing a rifle in defendants direction. When considered along with the abundant, undisputed evidence of Bernards mental instability, unpredictable personality, episodic fits of explosive rage and obsession with firearms, it is clear the evidence had a strong potential to influence the jurys deliberations.^[9] Freed from the legal and factual burden of having to explain the DOJ report, due to Attorney Dipperys failure to prepare the case fully, the prosecutor was able to assert with impunity that defendants self-defense argument was a fabrication, totally irreconcilable with the physical evidence.

At oral argument, the deputy attorney general argued that the DOJ report was inconsequential because, even assuming Bernard came out wielding a rifle, defendant created the situation himself by approaching his fathers residence with a shotgun; therefore, CALJIC No. 5.17 precluded a jury finding of perfect or imperfect self-defense.^[10] However, the prosecutors closing argument was carefully crafted to convince the jury that Bernard had nothing in his hand (except perhaps a cell phone) and that defendants version of events was utterly false, because it was contradicted by the physical evidence.^[11]Because the prosecutors closing argument was designed to exploit defense counsels ignorance of crucial physical evidence contained in the DOJ report, the jury was presented with a materially inaccurate portrait of defendants credibility and of the circumstances that existed during his fatal encounter with Bernard.

We acknowledge that the evidence was less than conclusive on the issue of whether Bernard actually fired the rifle. However, had the jurors known of the contents of the DOJ report, which permitted the inference that Bernard came out of the house armed with the rifle, defendants testimony that he believed his life was in danger would have gained far more credibility, and the jury might well have accepted the claim of imperfect self-defense, thereby reducing the verdict to manslaughter.^[12]

In sum, Attorney Dipperys inadequate investigation and incomplete preparation disadvantaged defendant and deprived the jury of crucial evidence that bore upon key aspects of defendants defense and allowed Prosecutor Ledford to convincingly paint defendant as a liar whose entire story was unworthy of belief.

We, therefore, conclude (1) that Attorney Dipperys failure to discover the DOJ report fell below the standard of reasonable representation under prevailing norms; (2) the error resulted in the withdrawal of potentially meritorious defense issues; and (3) in light of the entire record, including the prosecutors repeated exploitation of counsels ignorance in closing argument, there was a reasonable probability that the outcome of the trial would have been more favorable to defendant had Dippery acted within the professional standard of care. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)

Because of our disposition, it is unnecessary to reach defendants remaining assignments of error. Defendants motion to have the rifle (exhibit 59) transmitted to this court is dismissed as moot.

DISPOSITION

The judgment is reversed.