LaGrand v. Stewart, s. 95-99010

• Decision Date: 16 January 1998
• Docket Number: 95-99011,Nos. 95-99010,s. 95-99010
• Citation: 133 F.3d 1253
• Parties: 98 Cal. Daily Op. Serv. 433, 98 Daily Journal D.A.R. 631 Karl Hinze LaGRAND, Petitioner-Appellant, v. Terry STEWART, * Director, Arizona Department of Corrections, Respondent-Appellee. Walter Burnhart LaGRAND, Petitioner-Appellant, v. Terry STEWART,* Director, Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1253

133 F.3d 1253

98 Cal. Daily Op. Serv. 433, 98 Daily Journal

D.A.R. 631

Karl Hinze LaGRAND, Petitioner-Appellant, v. Terry STEWART, ^* Director, Arizona Department

of Corrections, Respondent-Appellee.

Walter Burnhart LaGRAND, Petitioner-Appellant, v. Terry STEWART,*

Director, Arizona Department of Corrections,

Respondent-Appellee.

Nos. 95-99010, 95-99011.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 22, 1996.

Decided Jan. 16, 1998.

Carla G. Ryan, Tucson, Arizona, and Lawrence B. Weeks, Coolidge, Arizona, for petitioner-appellant Karl Hinze LaGrand.

Bruce A. Burke, Tucson, Arizona, for petitioner-appellant Walter LaGrand.

Paul J. McMurdie, Deputy Attorney General, Phoenix, Arizona, for respondents-appellees.

Appeals from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CV-92-00026-JMR.

Before: HUG, Chief Judge, and PREGERSON and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON; Dissent by Judge PREGERSON.

T.G. NELSON, Circuit Judge:

Arizona death row inmates Walter and Karl LaGrand appeal the district court's denial of their petitions for writ of habeas corpus. We have jurisdiction of these consolidated appeals pursuant to 28 U.S.C. § 1291, and we affirm.

I FACTS AND PROCEDURAL HISTORY

Walter LaGrand (Walter) and Karl LaGrand (Karl) (collectively "the LaGrands") were each convicted of first-degree murder, attempted murder in the first degree, attempted armed robbery and two counts of kidnapping. The Arizona Supreme Court gave this account of the crimes in Walter's appeal:

This case arises from a series of events which occurred during a bungled attempt to rob the Valley National Bank in Marana, Arizona, on January 7, 1982. That morning Walter and Karl LaGrand drove from Tucson, where they lived, to Marana intending to rob the bank. They arrived in Marana sometime before 8:00 a.m. Because the bank was closed and empty the LaGrands drove around Marana to pass time. They eventually drove to the El Taco restaurant adjacent to the bank. Ronald Schunk, manager of El Taco, testified that he arrived at work at 7:50 a.m. The moment he arrived, a car with two men inside drove up to the El Taco. Schunk described the car as white with a chocolate-colored top. The car's driver, identified by Schunk as Walter LaGrand, asked Schunk when the El Taco opened. Schunk replied, "Nine o'clock." The LaGrands then left.

Dawn Lopez arrived for work at the bank at approximately 8:00 a.m. When she arrived at the bank she noticed three vehicles parked in the parking lot: a motor home; a truck belonging to the bank manager, Ken Hartsock; and a car which she did not recognize but which she described as white or off-white with a brown top. Because Lopez believed that Hartsock might be conducting business and desire some privacy she left the parking lot and drove around Marana for several minutes. She returned to the bank and noticed Hartsock standing by the bank door with another man whom she did not recognize. Lopez parked her car and walked toward the bank entrance where Hartsock was standing. As she passed the LaGrands' car Walter emerged from the car and asked her what time the bank opened. Lopez replied, "Ten o'clock." Lopez continued walking and went into the bank. When she entered the bank she saw Hartsock standing by the vault with Karl LaGrand. Karl was wearing a coat and tie and carrying a briefcase. Karl told her to sit down and opened his jacket to reveal a gun, which was later found by the police to be a toy pistol. Walter then came through the bank entrance and stood by the vault. Lopez testified that Walter then said, "If you can't open it this time, let's just waste them and leave." Hartsock was unable to open the vault because he had only one-half of the vault combination.

The LaGrands then moved Lopez and Hartsock into Hartsock's office where they bound their victims' hands together with black electrical tape. Walter accused Hartsock of lying and put a letter opener to his throat, threatening to kill him if he was not telling the truth. Lopez and Hartsock then were gagged with bandannas.

Wilma Rogers, another bank employee, had arrived at the bank at approximately 8:10 a.m. Upon arriving Rogers noticed two strange vehicles in the parking lot and, fearing that something might be amiss, wrote down the license plate numbers of the two unknown vehicles. She then went to a nearby grocery store and telephoned the bank. Lopez answered the phone after her gag was removed; her hands remained tied. Karl held the receiver to Lopez' ear and listened to the conversation. Lopez answered the phone. Rogers asked for Hartsock but Lopez denied that he was there, which struck Rogers as odd because she had seen his truck in the bank parking lot. Rogers then told Lopez that her car headlights were still on, as indeed they were. Rogers told Lopez that if she did not go out to turn her headlights off, then she would call the sheriff. A few minutes later Rogers asked someone else to call the bank and they also were told that Hartsock was not there. Rogers then called the town marshal's office.

After the first telephone call the LaGrands decided to have Lopez turn off her headlights. Her hands were freed and she was told to go turn off the lights but was warned that "If you try to go-if you try to leave, we'll just shoot him and leave. We're just going to kill him and leave." Lopez went to her car and turned off the lights. Upon her return to the bank her hands were retied. Hartsock was still bound and gagged in the same chair. Lopez was seated in a chair, and turned toward a corner of the room. Lopez testified that soon thereafter she heard sounds of a struggle. Fearing that Hartsock was being hurt, Lopez stood up, broke the tape around her hands and turned to help him. Lopez testified that for a few seconds she saw Hartsock struggling with two men. Karl was behind Hartsock holding him by the shoulders while Walter was in front. According to Lopez, Walter then came toward her and began stabbing her. Lopez fell to the floor, where she could see only the scuffling of feet and Hartsock lying face down on the floor. She then heard someone twice say, "Just make sure he's dead."

The LaGrands left the bank and returned to Tucson. Lopez was able to call for help. When law enforcement and medical personnel arrived at the bank Hartsock was dead. He had been stabbed 24 times. Lopez, who had also been stabbed multiple times, was taken to University Hospital in Tucson.

Law enforcement personnel quickly identified the LaGrands as suspects. By 3:15 p.m., police had traced the license plate number to a white and brown vehicle owned by the father of Walter's girl friend, Karen Libby. The apartment where the LaGrands were staying with Karen Libby was placed under surveillance. Shortly thereafter Walter, Karl and Karen Libby left the apartment and began driving. They were followed and soon pulled over. Walter and Karl were then arrested and the car was searched. Karen Libby's apartment was also searched and a steak knife similar to one found at the bank was seized. Karl's fingerprint was found at the bank. A briefcase containing a toy gun, black electrical tape, a red bandanna, and other objects was found beneath a desert bush and turned over to the police.

State v. LaGrand, 153 Ariz. 21, 734 P.2d 563, 565-66 (1987).

When questioned after their apprehension, Walter made no statements, but Karl confessed to the crimes in two different statements. He stated that he had stabbed Hartsock and Lopez, but that Walter had not stabbed anyone and that Walter had been out of the room at the time. Following a jury trial, both were convicted on all charges. After considering mitigating and aggravating circumstances, ¹ the judge sentenced both defendants to death. The Arizona Supreme Court affirmed the convictions and sentences. State v. Karl LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987); State v. Walter LaGrand, supra. The Supreme Court of the United States denied certiorari. 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987).

The LaGrands then filed post-conviction relief petitions in the Arizona Superior Court (trial court) which were denied in 1989. The Arizona Supreme Court denied review as did the United States Supreme Court. 501 U.S. 1259, 111 S.Ct. 2910, 2911, 115 L.Ed.2d 1074 (1991). The LaGrands then filed petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court, in a series of orders, denied relief, LaGrand v. Lewis, 883 F.Supp. 469 (D.Ariz.1995), LaGrand v. Lewis, 883 F.Supp. 451 (D.Ariz.1995), and these timely appeals followed.

Additional facts necessary to the discussion of the several issues are contained in the portions of this opinion in which the issues are addressed.

II JOINT ISSUES

Walter and Karl raise a number of issues jointly, which we discuss prior to reaching their individual claims.

A. The Pecuniary Gain Factor

Two related arguments are advanced relative to the trial court's finding of expectation of pecuniary gain as an aggravating factor. First, the LaGrands contend that the finding of pecuniary gain was arbitrary or irrational. The trial court's finding was affirmed by the Arizona Supreme Court in its independent review. That court said:

We do not believe the defendant must intend beforehand to kill as well as to rob to satisfy the statute. A.R.S. § 13-703(F)(5). Nor do we believe that an absence of actual receipt of money or valuables negates a finding of expectation of pecuniary gain as an aggravating circumstance.

In this case, the attempted robbery permeated the entire conduct of the defendant. The defendant may have reacted irrationally to the failure or inability of the victim to open the safe but the murder was neither accidental nor unexpected. The reason defendant was there was his expectation of pecuniary gain and the reason he stabbed the victim was because the victim was...