Campbell v. Kincheloe

• Citation: 829 F.2d 1453
• Decision Date: 06 October 1987
• Docket Number: No. 86-3589,86-3589
• Parties: Charles R. CAMPBELL, Petitioner-Appellant, v. Larry KINCHELOE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1453

829 F.2d 1453

Charles R. CAMPBELL, Petitioner-Appellant, v. Larry KINCHELOE, Respondent-Appellee.

No. 86-3589.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 7, 1986.

Withdrawn from Submission Nov. 14, 1986.

Resubmitted June 26, 1987.

Decided Oct. 6, 1987.

Raymond H. Thoenig, Seattle, Wash., for petitioner-appellant.

Kenneth O. Eikenberry, Michael P. Lynch, and Paul A. Silver of Olympia, Wash., for respondent-appellee.

On Appeal from the United States District Court for the Western District of Washington.

Before SKOPIL and FLETCHER, Circuit Judges, and VUKASIN, ^* District Judge.

SKOPIL, Circuit Judge:

Charles Campbell appeals the district court's denial of his petition for habeas corpus. He challenges the imposition of a death sentence following his convictions for aggravated first degree murder. His arguments on appeal concern (1) the propriety of the prosecutor's closing arguments during the penalty phase of the trial; (2) the admissibility during that phase of evidence of a prior conviction; (3) the effectiveness of the assistance of his counsel; and (4) the constitutionality of Washington's capital punishment statute. We reject Campbell's arguments and affirm. ¹

FACTS AND PROCEEDINGS BELOW

The facts of this case are set forth in detail in State v. Campbell, 103 Wash.2d 1, 691 P.2d 929, 933 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), and are only briefly summarized here.

In 1974 Campbell assaulted Renae Wicklund in her home in Clearview, Washington. During the assault, Campbell forced Renae to submit to acts of sodomy by holding a knife to the throat of her one-year-old daughter, Shannah. Renae sought help after the attack from a neighbor, Barbara Hendrickson. After a 1976 trial at which both women testified against him, Campbell was convicted of first degree assault and sodomy and sent to prison.

In March 1982 Campbell was transferred to a work release facility in Everett, Washington. On April 14, 1982 Campbell returned to the home of Renae Wicklund in Clearview. There he beat Renae severely, strangled her, and slashed her throat. He then cut the throats of Shannah Wicklund, then eight years old, and Barbara Hendrickson, who, by a tragic twist of fate, was visiting Renae and Shannah that afternoon. All three victims bled to death.

Campbell was arrested a few days after the homicides and charged with three counts of aggravated first degree murder. Pursuant to Washington law, the prosecutor filed a written notice of intent to seek the death penalty. ² After a trial in which the state's case was "overwhelmingly strong," Campbell, 691 P.2d at 933, Campbell was convicted on all three counts. The jury found four aggravating factors: ³ (1) Campbell was serving a term of imprisonment at the time of the murders; (2) the murders of two of the victims were related to their testimony against Campbell in his earlier trial for assault and sodomy; (3) Campbell murdered Shannah and Barbara to protect or conceal his identity; and (4) the murders were committed in the course of a burglary in the first degree. Campbell, 691 P.2d at 937.

Following the guilt phase of the trial, a special sentencing proceeding was held pursuant to Wash.Rev.Code Sec. 10.95.050 (Supp.1987). The jury found beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency. See Wash.Rev.Code Sec. 10.95.030(2). As required by Wash.Rev.Code Sec. 10.95.030(2) the trial judge sentenced Campbell to death. The Washington Supreme Court affirmed the convictions and sentence. Campbell, 691 P.2d at 948. Certiorari was denied. 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).

Two weeks prior to the scheduled execution date, Campbell, through court-appointed counsel, filed with the Washington Supreme Court a motion to stay the execution. The court treated the motion as a personal restraint petition and denied the petition. Campbell then filed a petition for writ of habeas corpus and a motion for stay of execution with the federal district court. In two separate orders, the district court denied Campbell's petition for writ of habeas corpus. Campbell timely appeals. A stay of execution has been granted pending appeal.

STANDARD OF REVIEW

A district court's decision on a petition for writ of habeas corpus is reviewed de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985).

DISCUSSION

A. Prosecutor's Closing Argument

Campbell argues that the prosecutor's penalty phase closing argument was improper because it appealed to the passion and prejudice of the jury. He contends that the prosecutor's reference to (1) the potential harm to other persons in prison; (2) the potential harm to trial witnesses; (3) the theory of "societal self-defense"; and (4) the jury's limited responsibility "to answer one sole question" rather than "to debate the death penalty," rendered the jury's verdict unconstitutional.

We agree that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). Every argument which stirs the emotions of the jury, however, does not render a sentencing proceeding unconstitutional. The Supreme Court has expressly approved the use of "open and far-ranging argument" during a capital sentencing proceeding. See Gregg v. Georgia, 428 U.S. 153, 203, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976). "We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision." Id. at 204, 96 S.Ct. at 2939. What is important is a "focus on the particularized circumstances of the crime and the defendant." Id. at 199, 96 S.Ct. at 2937; see also Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983); Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976).

Mere improper argument does not necessarily violate a defendant's constitutional rights. See Caldwell v. Mississippi, 472 U.S. 320, 328, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (Supreme Court cases "clearly warn against holding every improper and unfair argument of a state prosecutor to be a federal due process violation"). An "examination of the entire proceedings" must be made to determine whether the prosecutor's remarks rendered the proceedings "fundamentally unfair." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974); see also Caldwell, 472 U.S. at 339-40, 105 S.Ct. at 2645.

1. Potential Harm to Other Persons in Prison

During closing argument in the sentencing proceeding, the prosecutor stated:

Mr. Campbell's past conduct in this case, carrying a grudge for having victimized a woman, an innocent woman, of sodomy and assault in 1974, carrying that grudge until 1982 and then brutally and savagely killing her--Certainly Mr. Campbell, if he gets life in prison without parole, maybe he will never be out again but suppose he gets angry at a fellow prisoner? How long will he carry a grudge there? Will he get back at them? How about prison guards? The help in prison? A cook? Someone who is not a prison guard. How about those people?

The prosecutor's argument in this instance was permissible because it was related to the future dangerousness of this particular defendant. The Supreme Court the evidence provided a logical basis for the concerns [the prosecutor] raised [in his closing argument to the jury]. The evidence supported the conclusion that Campbell committed the murders in retaliation for testimony approximately six years earlier. The suggested danger to others with whom Campbell might have contact in the future was therefore directly related to his character and record.

                has consistently held that the future dangerousness of a defendant is a proper consideration for the jury in a capital sentencing proceeding.   Caldwell, 472 U.S. at 335, 105 S.Ct. at 2642-43;  Jurek v. Texas, 428 U.S. 262, 274-76, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976).  Such consideration is consistent with "the kind of individualized focus required in capital sentencing decisions."   California v. Ramos, 463 U.S. 992, 1005-06, 103 S.Ct. 3446, 3455-56, 77 L.Ed.2d 1171 (1983).  We agree with the district court that
                

Campbell nevertheless argues that the jury's consideration of "any relevant factors" under Wash.Rev.Code Sec. 10.95.070 is restricted to mitigating factors only. That section provides in part that a jury may consider "[w]hether there is a likelihood that the defendant will pose a danger to others in the future." Wash.Rev.Code Sec. 10.95.070(8). The state trial court included section 10.95.070 in its instructions to the jury made prior to closing argument, and the prosecutor tailored his closing argument to those instructions. Campbell does not contend that the court's instructions were improper.

Campbell argues that because the defendant's future dangerousness is an aggravating factor rather than a mitigating factor, any argument regarding that issue was improper. He contends that State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079, 1088 (1984), held that section 10.95.070 must be construed to allow jury consideration of only mitigating factors. In Bartholomew, the court stated that

the jury's liberal mandate under RCW 10.95.070 to consider "any relevant factors" shall be limited to mitigating factors only.... Specifically, evidence of nonstatutory aggravating factors must be limited to defendant's criminal record, evidence that would have been admissible at the guilt phase, and evidence to rebut matters raised in mitigation by the defendant.

Id. 683 P.2d at 1086-87.

We disagree with Campbell's characterization of Bartholomew. Nothing in Bartholomew suggests that the court intended...