(CN) - A federal appeals court in San Francisco upheld the death sentence for a man convicted of brutally murdering four family members of former UCLA and 49ers great Kermit Alexander 27 years ago.
Tiequon Cox was 18 when he and a fellow gang member stormed into the home of Ebora Alexander, 57, Kermit's mother, and shot her once through the head as she sat at her kitchen table drinking coffee. His 23-year-old sister Dietria and two nephews, 8-year-old Damon Bonner and 10-year-old Damani Garner, were killed in their beds.
Prosecutors said the shooters, both members of the Rollin' 60 Crips, mistook the Alexander home for their actual target.
Judge Susan Graber, writing for the 9th Circuit, stated that for Cox to prove he suffered prejudice, the court would have to conclude that at least one juror at Cox's trial might have found reasonable doubt that Cox was the gunman.
"This we cannot do because the overwhelming weight of the evidence proved otherwise," she wrote.
The appeals court voted 2-1 to deny the appeal, in an unpublished decision Wednesday, with Judge Harry Pregerson dissenting. Advised of Cox's petition for a rehearing en banc, no other judge for the full court requested a vote to rehear.
In the aftermath of the 1984 murders, investigators uncovered damning evidence against Cox, including a latent palm print found at the scene that experts concluded was his. Ballistic tests of empty shell casings and spent bullets found near the bodies also matched a gun Cox later instructed friend to destroy.
At trial, Cox's defense counsel waived both the opening statement and closing argument and presented no evidence during the guilt phase of the trial.
But the appeals court made clear the trial's guilt phase was not under examination, as his presence at the brutal scene was not in question.
The key element was whether he actually did the killings or just aided the act. The difference literally meant life or death for Cox.
If the jury had found that Cox did not enter the Alexander home that night with the specific intent to kill, the death penalty would have been off the table under the "multiple-murder special circumstance" doctrine, according to the ruling.
Judge Harry Pregerson from the panel in recommending to remand Cox's claims back to District Court.
"This is not a case concerning some minor disagreement about what a defense attorney could have done during the guilt phase," he wrote. "Rather, this is a case where defense counsel did not put on a defense at all." (Italics in original.)
Pointing to the fact that the defense called no witnesses and gave no opening or closing statement, "counsel's wholesale failure to mount a defense constitutes deficient performance."
Pregerson also said there is "legitimate factual dispute as to whether Cox's attorneys misunderstood the law."
The dissenting judge added that ordinarily factual disputes such as this are addressed by District Courts.
"Here, however, the District Court did not address Cox's argument that his attorneys misunderstood the law and never referred to the excerpts of deposition testimony that support his allegation," Pregerson wrote.
But this argument did not sway the other judges. Graber and Judge Kim Wardlaw found they could not overlook the "overwhelming evidence" and "despicable nature" of the murders.
In the early morning hours on Aug. 31, 1984, Cox and Darren Williams entered the Alexander home on 59th Street in Los Angeles after Williams mistakenly wrote the wrong address on a sheet of paper.
Three others - Horace Burns, Ida Moore and Lisa Brown - waited in a parked van down the street from Ebora Alexander's home.
A "scene of horror" is how Judge Graber described what police saw when they found the bullet-riddled bodies of the former defensive back's four family members.
Ebora's 14-year-old son Neal Alexander and her grandson, Ivan Scott, both were inside the home and survived the attack. Neal jumped on the back of the rifleman and started a fight with him before being punched in the face and escaping out the back door.
Brown, one of the women in the van, said she heard Williams or Cox say they were going to "kill everybody in the house" as they exited the vehicle, the ruling states.
Moore, the other woman in the van, later told authorities that Williams had a handgun in his waistband and that Cox was carrying something wrapped in a jacket. Moore had said she noticed "a big gun" in the back of the van earlier when they stopped for gas.
Two neighbors witnessed Cox leaving the home carrying a rifle after the barrage of gunfire ceased.
Moore also saw Cox leave the home with a rife in hand. She said Cox got back in the van after the shooting and exclaimed: "I just blew the bitch's head off. So drive."
A man named James Kennedy, who knew Cox, Williams and Burns through their gang associations, testified that on the morning of Aug. 31, Cox came to Kennedy's apartment with a .30-caliber carbine wrapped in a jacket and a simple instruction: destroy the gun.
Kennedy instead hid the weapon in some bushes near his home.
He revealed the location of the rifle to authorities when he became the target of a narcotics investigation.
The day after the execution-style killings, Cox bought a 1975 Cadillac for $3,000, a fact that helped show the crimes to be "cold premeditated murders for hire," the ruling says.
Cox's defense attorney spoke of his client's upbringing during the penalty faze, including being abused and abandoned at an early age by his mother, who was a drug addict and prostitute. Attempts to humanize him by speaking of the pervasiveness of violent street gangs in Cox's neighborhood failed.
The prosecution also evoked his past as a tool for the jury, most notably, saying that as a juvenile he threatened a mother with a firearm while she waited for her young son after school, then took her car and led police on a half-hour-long high-speed chase through city streets, stopping only when he hit a telephone pole.
The 9th Circuit's denial means the U.S. Supreme Court is Cox's only remaining option. It had also voted down Cox's appeal in 2009, and amended that opinion in 2010.
Williams and Burns are both serving life sentences for their part in the slayings.
Kermit Alexander was the eighth overall pick by the San Francisco 49ers in the 1963 NFL draft, earning a selection to the Pro Bowl in 1968.
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