255 F.3d 926 (9th Cir. 2001), 98-99018, Murtishaw v. Woodford

Docket Nº:98-99018
Citation:255 F.3d 926
Party Name:DAVID L. MURTISHAW, PETITIONER-APPELLANT, v. JEANNE WOODFORD, WARDEN OF THE CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE.
Case Date:June 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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255 F.3d 926 (9th Cir. 2001)

DAVID L. MURTISHAW, PETITIONER-APPELLANT,

v.

JEANNE WOODFORD, WARDEN OF THE CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE.

No. 98-99018

United States Court of Appeals, Ninth Circuit

June 26, 2001

Argued and Submitted November 2, 1999 San Francisco, California

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David H. Schwartz, San Francisco, California, for the appellant.

Susan Rankin Bunting, Deputy Attorney General, Sacramento, California, for the appellee.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding D.C. No. CV-F-91-00508-CWW-P

Before: Procter Hug, Jr., Warren J. Ferguson and Kim McLane Wardlaw, Circuit Judges.

The opinion of the court was delivered by: Hug, Circuit Judge

OPINION

Petitioner David Murtishaw, a California death row inmate, appeals the district court's denial, on the merits and after an evidentiary hearing, of his habeas corpus petition challenging: 1) his 1979 conviction for three counts of first degree murder and one count of assault with attempt to commit murder; and 2) his 1983 sentence of death. We conclude that the district court properly denied Murtishaw's claims with regard to his conviction of murder; however, the district court erred in denying one of Murtishaw's claims with regard to his death sentence. Accordingly, we affirm in part, reverse in part, and remand.

FACTS

On the morning of April 9, 1978, Lance Buflo, his wife Martha Soto, and his friends In-grid Etayo and James Henderson traveled to the desert near Mojave, California. Their goal for the day was to film a student movie for Buflo's cinema class at the University of Southern California. The students arrived in the desert and began filming the movie at about noon.

Meanwhile, on that same morning, Murtishaw and his brother-in-law Greg Laufenburger decided to go to the desert to shoot two .22 caliber rifles belonging to Murtishaw and his wife's ex-husband. At about 10:00 a.m., the two men left Murtishaw's house, purchased 500 cartridges of ammunition and two six-packs of beer, and left for the desert. After a few hours of traveling, Murtishaw and Laufenburger reached the town of Mojave. They stopped briefly to buy another six-pack of beer, because they had already consumed the beer that they bought earlier, and then they turned down a dirt road and drove into the desert.

While Murtishaw and Laufenburger were driving along the dirt road, their car stalled. They both repeatedly tried to restart the car, but their efforts were ultimately unsuccessful. Apparently frustrated with the car, the two men decided to start shooting their rifles. At one point, Murtishaw shot at, and hit, a full can of beer that he had placed on the hood of the car, and he later shot at the car itself several times.

A short while later, Murtishaw and Laufenburger started to walk down the dirt road further into the desert, where they soon encountered Buflo, Soto, Henderson and Etayo, who were busy filming their movie.1 Murtishaw explained to Buflo that

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his car had broken down, and he asked Buflo for a ride back to town. Buflo explained to Murtishaw and Laufenburger that he and the other students were filming a movie, and he agreed to give the two men a ride when they had finished, which would be later in the day. Murtishaw and Laufenburger thanked Buflo and began walking back toward their stranded car.

When Murtishaw and Laufenburger returned to their car they tried again, unsuccessfully, to restart it. According to Laufenburger's testimony, it was at this time that Murtishaw's intentions toward the students first turned sinister. Apparently, Murtishaw wanted to steal the students' car, and he repeatedly said to Laufenburger, "let's shoot the people," or "something like that." Laufenburger, thinking that Murtishaw was joking, dismissed his comments.

Later in the afternoon, Martha Soto and In-grid Etayo left the other two students and drove into town in Buflo's car to get some lunch for the four of them. As they passed Murtishaw and Laufenburger near Murtishaw's car, the two men flagged down the women to ask them for a ride. Soto and Etayo responded that they were not going into town, and they continued driving.

After Etayo and Soto continued down the dirt road into town, Murtishaw and Laufenburger walked back to where Buflo and Henderson were still filming in order to watch them. Uncomfortable with his new audience, Buflo went to talk with Murtishaw and Laufenburger. He observed that Murtishaw smelled strongly of alcohol and that he was using profanity. Sometime during the conversation, at Murtishaw's invitation, Buflo took a drink of Murtishaw's beer and fired a shot from Murtishaw's rifle. Buflo then began preparing for the next scene in the movie, which required the use of a .38 caliber revolver loaded with blanks. Murtishaw observed Buflo handling and loading the revolver, which Buflo had rented specifically for the movie, but it is unclear whether Murtishaw knew that the revolver was loaded with blanks. Murtishaw watched from about forty or fifty feet away as Buflo and Henderson resumed filming. Henderson fired the .38 caliber revolver several times during the scene.

A short while later Murtishaw and Laufenburger again approached Buflo to ask him for a ride. Buflo assured them that he would give the two a ride when they finished filming, at which point Murtishaw and Laufenburger decided to walk to the main road to see if they could hitch a ride into town.

Soto and Etayo soon returned in Buflo's car with the lunch they had bought in California City. After they ate lunch, the students filmed the final scene using the revolver, and then placed the empty gun in a satchel.

Meanwhile, Murtishaw and Laufenburger returned to their car and again tried to start it. By this time Murtishaw's intentions had become clear to Laufenburger: as Laufenburger testified, Murstishaw "kept on saying `Let's shoot them. Let's shoot them,' " to which Laufenburger responded"No." Murtishaw then told Laufenburger to wait there, and Murtishaw started to walk back to where the students were filming their movie.

At about this time the shadows were growing too long to continue filming, and the students decided to stop for the day. As they packed up their equipment, Henderson carried the satchel containing the .38 caliber revolver to the trunk of

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Buflo's car. Henderson returned to help Buflo and Soto with the rest of the equipment, and as the three were walking back to Buflo's car two or three shots rang out from behind them. 2 Henderson yelled out "I've been shot." Buflo saw that Henderson's shirt was covered with blood, and he dropped the things he was carrying to help Henderson.3 Buflo, Henderson, and Etayo managed to make it around to the passenger's side of the car before Murtishaw fired again, but a second volley of shots hit Soto in the head as she was scrambling for cover. The shooting then stopped momentarily, and Buflo and Henderson dragged Soto around to the passenger's side of the car before the shooting resumed. Soto was vomiting, and Buflo took the hooded robe she was wearing and placed her head upon it.

During another pause in the shooting, Buflo and Henderson searched frantically for the keys to the car, but their efforts were unsuccessful. The shooting began again, and Buflo, Henderson and Etayo again sought refuge on the passenger's side of the car, where Soto was lying. Henderson decided that someone would have to go for help if any of them were going to survive, and he sprinted from behind the car. Murtishaw fired five or six more shots at Henderson. These shots struck Henderson in the back, killing him.

Buflo and Etayo were still behind the passenger's side of the car when Murtishaw shot and killed Henderson. After Henderson fell to the ground, Buflo looked underneath the car and saw Murtishaw raise his head up from behind a bush, take aim at Buflo, and fire. One of the shots hit Buflo in the hand. Buflo and Etayo then decided that their best chance for escape was to run from Murtishaw. Buflo sprinted from behind the car, and he successfully ran at least 150 feet from the car before he tripped and fell. He turned around to see Murtishaw approaching Etayo. Buflo then ran another 150 feet, and turned again to see what became of Etayo. He saw Murtishaw standing over Etayo, who was still kneeling beside Soto. He heard Murtishaw yell something at Etayo, and as he turned again to run, he heard several more shots. Those shots killed Etayo.

Buflo made his way to the highway and flagged down a young couple in a van to give him a ride to town. On his way into town Buflo saw Murtishaw and Laufenburger hitchhiking on the highway.

Laufenburger's and Murtishaw's account of the Etayo shooting differs slightly from Buflo's. Laufenburger testified that he lay down behind a bush when Murtishaw started shooting, but that he could see both Murtishaw and the car. He then saw "one of the girls" (Etayo) walk out towards Murtishaw, and he heard Murtishaw tell her "Stop or I'll shoot." Laufenburger heard Etayo pleading for Murtishaw to stop, and Laufenburger told Murtishaw to "stop shooting," which he did for a moment. Laufenburger asked Murtishaw if he was going to shoot him, to which Murtishaw replied "No." Laufenburger then ran back toward Murtishaw's car, and as

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he was running he heard Murtishaw shoot several more times. Murtishaw's account of the Etayo shooting agrees substantially with Laufenburger's.

After Murtishaw had shot Etayo, he ran to catch...

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