632 F.3d 500 (9th Cir. 2011), 07-99014, Hayes v. Ayers

Docket Nº:07-99014.
Citation:632 F.3d 500
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:Royal Kenneth HAYES, Petitioner-Appellant, v. Robert L. AYERS, of San Quentin State Prison, Respondent-Appellee.
Attorney:Eric S. Multhaup, Mill Valley, CA, for the appellant. Lloyd G. Carter, Deputy Attorney General, Fresno, CA, for the appellee.
Judge Panel:Before: BETTY B. FLETCHER, RICHARD R. CLIFTON, and CARLOS T. BEA, Circuit Judges. Opinion by Judge CLIFTON; Dissent by Judge B. FLETCHER. B. FLETCHER, Circuit Judge, dissenting.
Case Date:January 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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632 F.3d 500 (9th Cir. 2011)

Royal Kenneth HAYES, Petitioner-Appellant,


Robert L. AYERS, of San Quentin State Prison, Respondent-Appellee.

No. 07-99014.

United States Court of Appeals, Ninth Circuit

January 7, 2011

Argued and Submitted March 11, 2010.

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Eric S. Multhaup, Mill Valley, CA, for the appellant.

Lloyd G. Carter, Deputy Attorney General, Fresno, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, District Judge, Presiding. D.C. No. 3:01-cv-03926-MHP.


Opinion by Judge CLIFTON; Dissent by Judge B. FLETCHER.


CLIFTON, Circuit Judge:

Royal Kenneth Hayes was convicted and sentenced to death by a California state court for the 1981 murders of Lauren de Laet and Donald MacVicar. On appeal from the district court's denial of his habeas corpus petition, he presents eight claims of error, all related to the guilt phase of his trial. The claims concern (1) the trial court's denial of his motion for change of venue based on alleged adverse pretrial publicity; (2) the admission of hearsay evidence regarding a firearms conviction of the man who allegedly delivered the murder weapon to Hayes; (3) the trial court's refusal to declare a mistrial following a statement by a witness during her testimony that she had heard that Hayes had offered $25,000 to have her killed; (4) the trial court's refusal to permit Hayes to call the attorney of another witness to testify about communications he had with his client that allegedly would have impeached her testimony; (5) the prosecutor's alleged failure to correct false testimony by that same witness; (6) security measures taken during the trial; (7) the eleven years that passed between Hayes's conviction and the filing of his opening brief on direct appeal to the California Supreme Court; and (8) the alleged cumulative prejudice of the above errors. We affirm the district court's denial of all of his claims.

I. Background

In December of 1981, Donald MacVicar and Lauren de Laet sought to buy cocaine from Hayes. In the presence of de Laet

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and Diane Weller, one of Hayes's accomplices who later testified against him, MacVicar gave Hayes $160,000 in cash towards a $250,000 payment for cocaine. Hayes was to deliver the cocaine in a secluded location in Santa Cruz, California. Weller testified that Hayes told her separately that she was to accompany him to Santa Cruz to kill MacVicar and de Laet.

Two days later, on December 29, 1981, Hayes, Weller, MacVicar, and de Laet drove to Santa Cruz, where they met Debbie Garcia at a doughnut shop. The group got into Garcia's car and drove to an isolated area in the woods, near two shallow holes that Garcia had dug earlier at Hayes's request. Garcia, who disavowed any advance knowledge of Hayes's plan to kill MacVicar and de Laet, claimed that Hayes told her the holes would be used to hide packages, as they had used similar holes in the past.

According to testimony by Weller and Garcia, Hayes then instructed Weller to wait in the car with MacVicar and de Laet. He walked into the woods with Garcia, purportedly to " check out" the exact location where the cocaine would be exchanged. Garcia returned about ten minutes later to retrieve MacVicar, whom she led to where Hayes was waiting. Hayes told Garcia to frisk MacVicar. As MacVicar leaned against a tree to be searched, Hayes killed him with a single shot to the back of his head. Garcia then retrieved de Laet from the car, and Hayes shot her twice in the head, killing her.

Nearly two months later, a mushroom hunter discovered fragments of what later turned out to be de Laet's skull, and law enforcement began to investigate. On March 18, 1982, Garcia, fearing for her life and for the safety of her family, informed police about the murders, including the involvement of Hayes, Weller, and herself. Hayes was arrested and charged with murder.

After lengthy pretrial proceedings, including an unsuccessful motion by Hayes for a change of venue, Hayes went to trial in Santa Cruz County on December 3, 1984. Garcia and Weller received immunity for testifying against Hayes. The jury ultimately convicted Hayes of the first-degree murders of MacVicar and de Laet, and also of false imprisonment, assault with a deadly weapon, and possession of cocaine based on separate conduct before his arrest. It found true a multiple-murder special-circumstance allegation and an allegation that Hayes had personally used a firearm to commit the murders. The jury was unable to agree on a penalty for the murder convictions.

Hayes again moved for a change of venue, and the case was transferred to Stanislaus County for retrial of the penalty phase. On May 29, 1986, a jury returned a penalty verdict of death, and the court entered judgment on August 8, 1986.

On direct appeal, the California Supreme Court affirmed the judgment against Hayes in a published decision filed on December 23, 1999. People v. Hayes, 21 Cal.4th 1211, 91 Cal.Rptr.2d 211, 989 P.2d 645 (Cal.1999). While this direct appeal was pending, Hayes filed a petition for a writ of habeas corpus in the California Supreme Court, which the court denied on the merits without further explanation. The United States Supreme Court denied Hayes's petition for certiorari. Hayes v. California, 531 U.S. 980, 121 S.Ct. 431, 148 L.Ed.2d 438 (2000).

Hayes then filed a timely petition for writ of habeas corpus under 28 U.S. C. § 2254 in the Northern District of California. The district court granted summary judgment for the respondent on all of the claims in Hayes's petition and entered

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judgment denying the petition on June 5, 2007. Hayes timely filed this appeal.

II. Discussion

Hayes raises eight claims of error related to the guilt phase of his trial. As Hayes filed his habeas petition in 2001, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Hayes's habeas petition, see Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), and we review the denial of his petition de novo. Tilcock v. Budge, 538 F.3d 1138, 1143 (9th Cir.2008). Under AEDPA, a petition challenging a state court conviction will not be granted unless the decision " was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S. C. § 2254(d)(1). We measure each of Hayes's claims against this standard.

A. Denial of Change of Venue

Hayes first argues that the guilt phase of his trial should have been moved out of Santa Cruz County because of adverse pretrial publicity. He contends that the state court's denial of his change of venue motion in the face of prejudicial media coverage denied him due process in contravention of clearly established Supreme Court precedent.

Hayes initially moved for change of venue on February 25, 1983. He submitted evidence of media coverage of his case in Santa Cruz County. The Santa Cruz Sentinel ran 37 articles about the case between February 1982, when the remains of the victims were first found, and early January 1983, when Hayes pleaded not guilty. The San Jose Mercury-News published 30 articles about the case in that time. Other Northern California newspapers and television and radio stations also covered the investigation and eventual criminal proceedings. The media coverage included descriptions of the victims' remains as they were found; Hayes's criminal history in Oregon and Minnesota, including the fact that he had been twice acquitted of murder (once because he was found not guilty by reason of insanity); Hayes's commitment to and escape from a mental hospital; Garcia and Weller's descriptions of how Hayes shot MacVicar and de Laet and removed their heads and hands; and the fact that Weller passed a polygraph test.

The trial court denied Hayes's motion without prejudice in March of 1983, noting that the anticipated delay before his trial would diminish the likelihood that he would be unable to receive a fair trial in Santa Cruz County.

Hayes renewed and supplemented his change-of-venue motion four times after voir dire began in August of 1984. Each time, he documented additional press coverage since his previous filing. The supplementary materials included articles decrying the cost and inefficiency of the Hayes trial and that of another murder defendant, David Carpenter (" The Trailside Killer" ), whose trial had recently been moved out of Santa Cruz County, and coverage of Hayes's jailhouse marriage to a former nun. The court finally denied Hayes's renewed motion on December 3, 1984, shortly before the prosecution commenced its case-in-chief.

The Sixth and Fourteenth Amendments " guarantee[ ] to the criminally accused a fair trial by a panel of impartial, ‘ indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). When a trial court is " unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere[,] ... due process requires that the trial court grant defendant's

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motion for a change of venue." Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988) (citing Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)).

In this circuit, we have identified " two different types of prejudice in support of a motion to transfer venue: presumed or actual." United...

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