Jeffers v. Ricketts

• Decision Date: 09 November 1987
• Docket Number: No. 86-1840,86-1840
• Citation: 832 F.2d 476
• Parties: 24 Fed. R. Evid. Serv. 321 Jimmie Wayne JEFFERS, Petitioner-Appellant, v. James R. RICKETTS, Director, Arizona Department of Corrections; Donald Wawrzaszek, Superintendent, Arizona State Prison, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 476

832 F.2d 476

24 Fed. R. Evid. Serv. 321

Jimmie Wayne JEFFERS, Petitioner-Appellant, v. James R. RICKETTS, Director, Arizona Department of Corrections; Donald Wawrzaszek, Superintendent Arizona State Prison, Respondents-Appellees.

No. 86-1840.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 13, 1987.

Decided Nov. 9, 1987.

Donald S. Klein, Frank P. Leto, Tucson, Ariz., for petitioner-appellant.

Gerald R. Grant, Phoenix, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

Before PREGERSON and CANBY, Circuit Judges and WILSON ^*, District Judge.

CANBY, Circuit Judge:

Jimmie Wayne Jeffers appeals the dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. Sec. 2254. Jeffers' habeas petition challenges his convictions for assault with a deadly weapon and first degree murder and his sentence of death. We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.

FACTS AND PROCEDURAL HISTORY

Jeffers' was convicted of murdering Penelope Cheney and of assaulting Doris Van der Veer with a deadly weapon. Penelope Cheney had been Jeffers' girlfriend and had been arrested with Jeffers in May of 1976 on state charges of receiving stolen property. Jeffers had posted bail for Cheney, but had been unable to post bond for himself and remained in custody at the Pima County Jail. While in jail Jeffers received reports that Cheney had been cooperating with the police, providing information to them about Jeffers and certain heroin transactions. Jeffers wrote a note to another jail inmate offering him money if he would kill Cheney. The detention officer who was supposed to deliver the note read it and seized it. Jeffers was finally released on bail in early October.

Later that same month, Jeffers was living with Doris Van der Veer in the Linda Vista Motel in Tucson, Arizona. Jeffers sent a note to Cheney requesting that she meet with Jeffers. On October 20th Jeffers told Van der Veer that Cheney was coming over and asked her to leave while Cheney was there. Cheney arrived at the motel room when Jeffers and Van der Veer were there. The two women met briefly and Van der Veer then went outside, leaving Jeffers and Cheney in the room. Approximately two hours later Van der Veer returned to the motel room and knocked on the door. Jeffers opened the door. Jeffers had a gun in his hand; Cheney was lying on the bed and appeared to be cyanotic. While Van der Veer watched, Jeffers injected a liquid into Cheney's hand and said, "I have given her enough shit to kill a horse and this bitch won't die." Jeffers told Van der Veer, a former licensed practical nurse, to check Cheney. Cheney's heartbeat was faint, her breathing was labored, and a foamy fluid was coming out of her mouth. Van der Veer asked if appellant was going to help Cheney. He responded, "No, I'm going to kill her." Jeffers straddled Cheney's body and began choking her, first with his belt and then with his hands. After it appeared that she had died, Jeffers prepared another syringe and forced Van der Veer to inject heroin into Cheney's groin and hand. He also told Van der Veer to get on top of Cheney and choke her. He took photographs of both of these acts. Jeffers then got on top of Cheney and began beating her with his hands. As he did this, he called her a "bitch" and a "dirty snitch" and said, "This one is for [naming several names]." Jeffers finally dragged Cheney's body into the bathroom and put it in the shower.

The body remained in the shower for three days. When the body began to smell, Jeffers and Van der Veer wrapped it in garbage bags and put it in a sleeping bag. That night they put the body in the trunk of Van der Veer's car. Jeffers and Van der Veer took Cheney's body to a place near Sedona, Arizona, and buried it in a shallow grave.

On February 9, 1978, a jury found Jeffers guilty of first-degree murder and assault with a deadly weapon. The trial judge sentenced Jeffers to death on the first degree murder conviction. He also sentenced Jeffers to not less than 5 nor more than 10 years in prison on the assault conviction. Jeffers appealed from the judgments and the sentences imposed.

As a result of the appeal, Jeffers was resentenced on the murder conviction. On July 10, 1980, the trial court found two aggravating circumstances and no mitigating circumstances, and again imposed the death penalty. The Arizona Supreme Court affirmed both the convictions and the sentences. State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983). The sole aggravating circumstance upheld by the Arizona Supreme Court was that Jeffers had committed the murder "in an especially heinous ... or depraved manner." Ariz.Rev.Stat.Ann. Sec. 13-703(F)(6). The Supreme Court of the United States denied certiorari. Jeffers v. Arizona, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).

On December 2, 1983, Jeffers filed a petition for writ of habeas corpus in the district court. He subsequently filed an amended petition and requested an evidentiary hearing. On Feb. 4, 1986, the district court denied Jeffers' motion for evidentiary

                hearing and dismissed his petition.    Jeffers v. Ricketts, 627 F.Supp. 1334 (D.Ariz.1986).  Jeffers appealed to this court on Feb. 27, 1986
                

DISCUSSION

A. Issues

Jeffers raises some 13 questions for our consideration. Because we find that Jeffers was unconstitutionally sentenced to death, we need not reach some of the issues he presents. The questions we address are:

1. Did the prosecutor's refusal to grant immunity to a defense witness, while granting immunity to four state witnesses, violate Jeffers' sixth amendment right to compulsory process, thereby denying due process?

2. Did certain evidentiary rulings at his trial deprive Jeffers of due process?

3. Did the introduction of evidence of other "bad acts" deny Jeffers a fair trial?

4. Was Jeffers denied due process of law when he made a single appearance before the jury in jail clothing?

5. Was Jeffers denied an impartial sentencing tribunal?

6. Was Arizona's standard of aggravation for murder committed in an "especially heinous ... or depraved manner" constitutionally applied to Jeffers?

B. Matters Concerning the Trial

1. Refusal to grant immunity to defense witness

Jeffers contends that refusal to grant immunity to a defense witness, when the state had previously offered and granted immunity to four state witnesses, violated Jeffers' sixth amendment right to compulsory process and denied him due process of law. The state granted immunity to Doris Van der Veer, Ramona Eppling, Sharon Galarza, and Rich Honton. The state refused to grant immunity to Louis Rosso, who was called to the stand to help Jeffers establish his alibi defense.

Denial of immunity for a defense witness can violate due process. United States v. Lord, 711 F.2d 887 (9th Cir.1983). The defendant is entitled to an evidentiary hearing if he makes "an unrebutted prima facie showing of prosecutorial misconduct that could have prevented a defense witness from giving relevant testimony." Id. at 891. In order to make a prima facie showing of prosecutorial misconduct, a defendant has the burden of showing, first, that the evidence was relevant and, second, that the prosecution deliberately intended to distort the judicial factfinding process by denying immunity to the defense witness. Id. (citing with approval Government of Virgin Islands v. Smith, 615 F.2d 964, 968 (3d Cir.1980)). Jeffers has not met his burden.

Jeffers testified that on the day that Cheney died, he was out making a heroin purchase. Earlier in that week Van der Veer and Jeffers had made a purchase from Louis Rosso. Van der Veer testified that on that occasion Rosso had sold Jeffers enough heroin to satisfy Jeffers' needs for several days. Her testimony therefore made Jeffers' alibi that he was out buying heroin somewhat less credible. According to Jeffers, Rosso would have testified that he had only sold Jeffers a small quantity of heroin. Although neither clearly exculpatory nor essential to the defense, Rosso's testimony would have been relevant, satisfying one element of the Lord test.

There is, however, no evidence whatsoever of prosecutorial misconduct. The defense did not make known until the middle of the trial that it intended to call Rosso. There is no suggestion that the prosecutor made any threat to Rosso that induced him to invoke the fifth amendment, as was prima facie shown to have occurred in Lord, 711 F.2d at 891. Nor is there any showing that the prosecution presented a distorted factual picture by immunizing its witnesses to testify to one side of a story while denying immunity to defense witnesses who would present the other side. See United States v. Alessio, 528 F.2d 1079, 1080-82 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976); United States v. Paris, 812 F.2d 471, 477

                (9th Cir.1987).  Jeffers' challenge therefore fails the second prong of the Lord test.    See United States v. Disla, 805 F.2d 1340, 1353 (9th Cir.1986).  He has made no prima facie showing that the decision not to grant immunity to Rosso denied him a fair trial.  We affirm the district court's decision on this issue
                

2. Evidentiary rulings

Jeffers contends that evidentiary rulings in capital cases must meet a standard of "extra reliability." He draws support from the plurality opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which stated that "[i]n capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability." Id. at ----, 107 S.Ct. at 2603, 91 L.Ed.2d at 347. Insofar as Jeffers' argument suggests that evidentiary rulings and their review are subject to a totally different methodology in capital cases from that in all other criminal cases, we do not accept it. We readily agree, however, that we must...