Sivak v. Hardison

• Decision Date: 07 September 2011
• Docket Number: No. 08–99006.,08–99006.
• Parties: Lacey Mark SIVAK, Petitioner–Appellant,v.John HARDISON, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

658 F.3d 898

11 Cal. Daily Op. Serv. 11,516

2011 Daily Journal D.A.R. 13,666

Lacey Mark SIVAK, Petitioner–Appellant,

v.John HARDISON, Warden, Respondent–Appellee.

No. 08–99006.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 2010.Filed Sept. 7, 2011.

Bruce D. Livingston (argued) and Colleen Brady Ward, Federal Defender Services of Idaho, Boise, ID; Todd Maybrown, Allen, Hansen & Maybrown, P.S., Seattle, WA, for the petitioner-appellant.L. LaMont Anderson (argued), Deputy Attorney General, Boise, ID, for the respondent-appellee.Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 1:96–CV–00056–BLW.Before: ALEX KOZINSKI, Chief Judge, SIDNEY R. THOMAS and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Dixie Wilson was murdered on April 6, 1981, while she was working at the Baird Oil gas station in Garden City, Idaho. Approximately $385 was taken from the station's cash drawer and safe. Both Petitioner Lacey Sivak and his co-defendant Randall Bainbridge (who was tried separately) admitted that they were present when the crime occurred, but each insisted that the other was responsible for the murder and robbery. The jury convicted Sivak of felony murder and/or aiding and abetting felony murder, but acquitted him of pre-meditated murder. The trial judge then imposed the death penalty. After pursuing other remedies, Sivak filed a federal habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The district court denied him relief.

Although we reject many of Sivak's contentions on appeal, we conclude that absent the State's knowing presentation of perjured inmate testimony, the result of Sivak's penalty-phase hearing could have been different. The only direct evidence establishing that Sivak, not Bainbridge, committed the murder came from Bainbridge's unsworn statement during a police interrogation, and a pair of jailhouse informants. One of the informants admitted on the witness stand that he was a habitual liar; the other committed perjury regarding his motives for testifying and his expectations of receiving preferential treatment from the State. Accordingly, we hold that the State violated Sivak's due process rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and we reverse the district court's denial of the writ with respect to Sivak's death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

The State charged Sivak with robbery, two counts of murder in the first degree (premeditated murder and felony murder), and possession of a firearm during the commission of the robbery and murder.

1. The Crime

According to her husband, Dixie Wilson left her home around 6:20 on the morning of April 6, 1981, to go to her job at the Baird Oil gas station.

By 7:00, she had been stabbed and shot repeatedly. Numerous witnesses testified that, when they found her on the gas station floor, she was breathing faintly and appeared to be unconscious, her “face was all bloody,” and blood was coming out of her mouth. One person noted that “her blouse was kind of up above her breasts,” and another said that her shirt was “pulled way up” so that “she was naked from ... [the] top of her breast down to her pants line.” There was a pool of blood on the floor around her, and a knife blade was lying on the ground. The gas station's money drawer was open, and contained only loose change, and no bills. An empty money bag was sitting out on the countertop.

Wilson was unconscious when she arrived at the hospital, and was declared dead less than an hour later. An autopsy revealed that she had been shot at least five times in the head and face, and the coroner recovered seven separate bullet fragments from her skull. She was stabbed approximately twenty times around the head, neck, and shoulder, as well as on her left hand, which a physician described as a defensive wound. An x-ray appeared to show the tip of a pocketknife blade lodged in her skull, and the tip of a knife blade was recovered from her hair.

The State sought to establish that Sivak had two motives for the crime: to rob the gas station and to resolve a grudge against Wilson. In addition to the two motives proffered by the State, Sivak's former supervisor suggested an alternative motive for the robbery and killing: Bainbridge's attraction to Wilson. According to the supervisor, Bainbridge appeared at the station two days after the murder and “started talking about Dixie,” saying “two or three times ... how she turned him on.” Bainbridge appeared “very nervous,” his lips quivered, his voice broke, and his hands were shaky. (In fact, in the separate prosecution of Bainbridge, “the prosecutor ... pursue[d] a sexual motivation theory.” State v. Bainbridge, 108 Idaho 273, 698 P.2d 335, 337 (1985).)

2. Jailhouse Informants

During the trial, the State introduced testimony from a number of inmate witnesses. The first, Jimmy Leytham, said that when he and Sivak were in jail together, Sivak confessed to murdering Wilson. Leytham claimed that he was interested in learning about the crime because he had heard about the murder on the television news, and had heard from other inmates that the victim “always helped convicts and stuff.” He asked Sivak “why he shot her and stabbed her so many times,” and Sivak responded, “because she kept on moving.” He then asked Sivak “what happened to the knife handle,” and Sivak said that he “threw it in the river over by the fairgrounds.” He asked about what type of gun was used, and Sivak said that “they used a .22.” He asked about Sivak's motive, and Sivak said that “he holds grudges against people,” and that “he used to work at the place” and Wilson had “fired him.”

Leytham admitted to the jury that he had been in jail on charges of burglary and escape. When asked about his motive for testifying, Leytham said that he had “a wife and kids out on the streets,” and he did not “want anything to happen to them.” Asked whether he was seeking “any particular favoritism from State authorities” in exchange for his testimony, Leytham said “[n]o.” Asked whether the prosecutor's “office or any other State agency” took any actions “with regard to your incarceration [in] the Ada County jail,” Leytham said only that his escape charge was dismissed after the preliminary hearing, and a charge pending in another city was also dismissed. Leytham said that he did not know whether the prosecutor's office was involved in the dismissals.

On cross-examination, the defense asked Leytham about his lengthy criminal history, which included convictions for burglary and insufficient funds. The defense pointed out that Leytham's sentencing “[j]udge probably wasn't real happy about seeing [him] the second time” after being lenient during his first conviction. Leytham acknowledged having a third burglary charge against him, and admitted that, in the words of Sivak's counsel, he had been a “prime candidate for the penitentiary” before his charges were dismissed following the preliminary hearing. The defense also asked whether Leytham talked to the other inmates, which elicited a discussion about an inmate named Nathan Crispin. The defense asked Leytham whether he had ever left the jail to travel to Kansas, and Leytham said he had done so for “[p]ersonal reasons.” The defense then asked Leytham whether he had testified against Nathan Crispin in a murder trial in Kansas, and Leytham responded cryptically and without elaboration, “You've got the information.”

The defense closed its cross-examination of Leytham by asking, “is it fair to say that you are a free man today because you testified here today and because you testified in Nathan Crispin's case?” Leytham responded unequivocally, “No, sir.”

The State called a second inmate, Duane Grierson, to testify about Sivak's jailhouse admissions. According to Grierson, Sivak was pleased that Grierson had testified against Bainbridge, and Sivak wanted to tell his version of events to Grierson. Sivak then said: “I didn't rob anybody.... Bainbridge did.... I killed her, ... and so did he.” Sivak also said that “he reached a sexual climax from pushing on the body,” and that Bainbridge “reached one from playing with her boobs.”

Asked about why he was testifying, Grierson said, “Because I believe that they are guilty of it,” and “I believe that what I am doing is right.” Asked whether “any ... government entity” had made a deal in exchange for his testimony, he said, “No, sir,” and that he did not “expect” any leniency in his pending sentencing proceedings. On cross-examination, Grierson admitted that he had testified in two other cases in addition to Sivak's and Bainbridge's. Grierson initially denied giving information in the interest of obtaining favorable treatment, but later admitted to writing an affidavit for his sentencing judge, which stated: “I have been promised deals by the prosecuting attorney's office, the main gist of which were that if I testified in court in certain murder cases, I would not be sent to any prison, but would receive, at best, a county jail term.” He also wrote to the sentencing judge that he was “a chronic liar,” and “lying was a way of life” for him.

3. The Verdict

The jury found Sivak guilty of robbery, first-degree felony murder, possession of a firearm during the commission of a robbery, and possession of a firearm during the commission of a felony murder. The jury acquitted Sivak of first-degree premeditated murder and possession of a firearm during the commission of first-degree premeditated murder.

B. Penalty Phase

Consistent with Idaho and federal law at the time, the trial judge was responsible for making the findings necessary to impose the death sentence. See State v. Lovelace, 140 Idaho 73, 90 P.3d 298, 300–01 (2004) (discussing impact of Ring v. Arizona, 536 U.S. 584, 122 S.Ct....