Anderson v. Calderon

• Decision Date: 17 November 2000
• Docket Number: No. 98-99024,98-99024
• Citation: 232 F.3d 1053
• Parties: (9th Cir. 2000) STEPHEN WAYNE ANDERSON, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1053

232 F.3d 1053 (9th Cir. 2000)

STEPHEN WAYNE ANDERSON, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee.

No. 98-99024

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 5, 2000

Filed November 17, 2000

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[Copyrighted Material Omitted] Margo A. Rocconi, Federal Public Defender's Office, Los Angeles, California; Robert S. Horwitz, Law Offices of A. Lavar Taylor, for the petitioner-appellant.

Gil P. Gonzalez, Office of Attorney General, San Diego, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California John G. Davies, District Judge, Presiding. D.C. No. CV-92-00488-JGD

Before: Stephen S. Trott, Ferdinand F. Fernandez, and M. Margaret McKeown, Circuit Judges.

TROTT, Circuit Judge:

Elizabeth Lyman was an 81 year old retired piano teacher. She lived by herself on Church Street in Bloomington, San Bernardino County, California. About one hour after midnight on Monday, May 26, 1980 -Memorial Day -petitioner Anderson, a 26-year old escapee from Utah State Prison, broke into Mrs. Lyman's home, cut her phone line with a knife, and shot her in the face from a distance of 8 to 20 inches with his .45 caliber handgun as she lay in her bed. Anderson then covered her dead body with a blanket, recovered the incriminating expelled casing from the hollowpoint bullet that killed her, and methodically ransacked her house for money. He found less than $100. Next, Anderson sat down in Mrs. Lyman's kitchen to eat a dinner of noodles and eggs. His meal was interrupted, however, by deputy sheriffs called to the scene by a suspicious neighbor who had been awakened by barking dogs and had seen Anderson in Mrs. Lyman's house through a window. The deputies arrested Anderson at 3:47 a.m. and took him to the San Bernardino Sheriff's Substation in Fontana.

Enter San Bernardino County Sheriff's Department Homicide Detail Detectives Wes Daw and Dennis O'Rourke. Daw and O'Rourke promptly advised Anderson of his Miranda rights, after which he freely and fully confessed to the burglary of Mrs. Lyman's house and to shooting her. He repeated his confession three hours later at Lyman's home during a filmed re-enactment of the crime. Two days later, on May 28, he was interviewed at 6:55 p.m. by Dr. Robert Flanagan, a psychiatrist employed by the California prison system, to whom he repeated his confession and who found him to be sane, oriented, and sober at the time of the offense, and competent to stand trial. Because of the holiday and other events, seventy-six hours elapsed between Anderson's arrest and his arraignment on May 29, 1980, at 1:10 p.m.

A San Bernardino County jury convicted Anderson of first degree felony murder with special circumstances, finding that the murder of Elizabeth Lyman occurred during a burglary. The jury sentenced him to death. The California Supreme Court affirmed the convictions but granted his request for a new special circumstances/penalty phase trial on the ground that the jury had erroneously not been asked (as required by California law) to determine whether the homicide was intentional. See People v. Anderson, 38 Cal. 3d 58, 61, 694 P.2d 1149, 1151 (1985). Such a finding was necessary at that time before a defendant could be eligible for capital punishment. A second jury retrying special circumstances and the penalty phase of Anderson's case years later concluded in 1986 that the murder of Elizabeth Lyman was intentional and again sentenced him to death.

Eventually, having failed in state court to undo either his conviction or his final death sentence, see People v. Anderson, 52 Cal. 3d 453, 485, 801 P.2d 1107, 1125 (1990), Anderson went to federal district court with a petition for a writ of habeas corpus. After lengthy proceedings, which included an exhaustive evidentiary hearing, his numerous claims were denied. He now comes to us on appeal from the denial with claims aimed at both his conviction and his sentence. The claims are as follows:

1) That the State violated the disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over to Anderson's trial lawyers a brief tape-recorded interview taken on the day of his arrest in which he alleges he invoked his right to remain silent.

2) That the State violated his Fourth Amendment right by failing promptly to arraign him as required by County of Riverside v. McLaughlin , 500 U.S. 44 (1991).

3) That the State trial court made improper comments to the penalty phase jury about the procedural history of the case, including comments that Anderson had previously been sentenced to death, but that the sentence had been overturned on appeal.

4) That the State trial court erred in failing to instruct the guilt-phase jurors on lesser included offenses.

5) That he was the victim of ineffective assistance of counsel.

6) That the penalty phase jurors prematurely began deliberations.

7) That the federal district court erred in refusing to limit the State's use of privileged materials to federal habeas corpus proceedings.

This court has jurisdiction pursuant to 28 U.S.C.S 2253, and we affirm the judgment of the district court.

I Brady v. Maryland

In Brady v. Maryland, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976); and the duty encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682; see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

Because Brady does not require bad faith on the part of the prosecution for a violation of due process, the rule encompasses evidence "known only to police investigators and not to the prosecutor." Kyles, 514 U.S. at 438. In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. at 437.

We use a three-part test to measure whether a failure to disclose amounted to a Brady violation: (1) the evidence at issue must be "favorable" to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the suppressed evidence must be "material" under state law to the accused's guilt or punishment -i.e., prejudice must have ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also United States v. Cooper, 173 F.3d 1192, 1202 (9th Cir. 1999).

Brady comes into play in this case because Daw and O'Rourke had a brief tape recorded conversation with Anderson between 7:04 a.m. and 7:07 a.m. on the day of his arrest, but neither the conversation, nor the existence of the tape, nor the substance of the discussion were disclosed to Anderson's attorneys until April 1993, some 13 years after the murder of Elizabeth Lyman and long after Anderson's trials and second sentence to death. The brief conversation was occasioned by Anderson's request during his initial confession to the Lyman crimes to talk to Daw and O'Rourke about other crimes which occurred not in California, but in Utah. Anderson argues that the unrevealed taped conversation demonstrates that he invoked his right to remain silent about two separate murders in Utah to which he confessed two days later to Salt Lake County Officers, and which were then used by the State at the penalty phases of his trial to convince the jury to sentence him to death. He claims that the taped conversations contain exculpatory evidence that was both favorable and material because what he said to the detectives about his willingness to talk to Utah officials could have been used under California law to suppress those damaging confessions, and that without those damaging confessions, his sentence in this case might well have been different.

To determine whether Anderson's Brady claim has merit, we must start with the salient facts. They are as follows:

Anderson was arrested at 3:47 a.m. on Memorial Day. He was transported to the Sheriff's Fontana Substation at 5:15 a.m. At about 6:00 a.m., Daw and O'Rourke fully advised him of his Miranda rights. He waived his rights and confessed to the Lyman crimes.

At some point during this process, and after he had been advised of and waived his Miranda rights, Anderson volunteered that he wanted to tell the detectives about other murders he had committed in Utah, unsolved crimes about which Daw and O'Rourke had no knowledge. They asked him to hold off until they talked to him about the Lyman homicide. The Lyman interview ended at 6:45 a.m. Then, at 7:04 a.m., Daw and O'Rourke readvised Anderson of his rights on a fresh tape and gave him an opportunity to talk about the murders he had tried to tell them about earlier. Because what was said is central to our analysis of both Anderson's Brady claim and his claim that his subsequent confessions were the product of an unreasonable delay in his arraignment, we lay out the entire taped interview as it occurred on that morning over 20 years ago:

O'Rourke: All right, the time is zero-seven-oh-four hours: Date: 5/26/80. We are at the Fontana Substation . . . Present reporting officer Sergeant Dennis M. O'Rourke, Detective Wes Daw and ...