Adamson v. Ricketts

• Decision Date: 22 December 1988
• Docket Number: No. 84-2069,84-2069
• Parties: John Harvey ADAMSON, Petitioner-Appellant, v. James G. RICKETTS, Director, Arizona Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1011

865 F.2d 1011

57 USLW 2418

John Harvey ADAMSON, Petitioner-Appellant, v. James G. RICKETTS, Director, Arizona Department of

Corrections, et al., Respondents-Appellees.

No. 84-2069.

United States Court of Appeals, Ninth Circuit.

Argued En Banc and Submitted Oct. 20, 1987.

Decided Dec. 22, 1988.

Timothy K. Ford, Seattle, Wash., and Timothy J. Foley, San Francisco, Cal., for petitioner-appellant.

Jack Roberts, Asst. Atty. Gen., Dept. of Law, Phoenix, Ariz., for respondents-appellees.

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

Before HUG, SCHROEDER, PREGERSON, ALARCON, FERGUSON, NELSON, BOOCHEVER, NORRIS, BEEZER, BRUNETTI and THOMPSON, Circuit Judges.

FERGUSON, Circuit Judge:

John Harvey Adamson filed a petition for a writ of habeas corpus in district court

                after exhausting all of his state remedies.  He contends that his death sentence after a conviction of first degree murder violated various provisions of the federal Constitution.  The district court denied his petition, and a three-judge panel of this court affirmed the denial.  Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985).  That decision was vacated when the majority of the judges of the circuit voted to have the appeal determined by an en banc panel.  This panel then reversed the district court on double jeopardy grounds and directed the issuance of a writ of habeas corpus.  Adamson v. Ricketts, 789 F.2d 722 (9th Cir.1985) (en banc).  We specifically declined at that time to decide the other issues presented by the petition.  Id. at 725.    The Supreme Court granted certiorari and reversed on the double jeopardy issue.  Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987).  We are now required to address the other issues which were reserved for determination.  We affirm the district court in part, reverse in part, and remand with instructions
                

I.

Adamson was arrested and charged with the June 2, 1976 car bombing murder in Arizona of Donald Bolles, an investigative reporter. A preliminary hearing was held on June 21, 1976, at which time a justice of the peace found probable cause to hold Adamson for first degree murder. In January 1977, after jury selection for his trial was underway, Adamson and the State entered into a plea agreement. Under the terms of the agreement, Adamson would testify against two other individuals who allegedly had hired him to commit the murder and would plead guilty to second degree murder. In exchange, Adamson would receive a sentence of 48-49 years imprisonment, with a total incarceration time of 20 years and 2 months.

On January 15, 1977, a hearing was held before Superior Court Judge Ben Birdsall. At that time, Judge Birdsall stated that he had reviewed the preliminary hearing transcript, police reports, supplements, and witness statements in the case. He questioned Adamson as to the factual basis of his guilt, and accepted the plea of guilty to second degree murder. He delayed acceptance of the sentencing provisions of the plea agreement, however, until he could determine the appropriateness of the sentence. Four days later, after having reviewed the presentence report, the preliminary hearing transcript, and the other information before him, Judge Birdsall concluded that the negotiated term of years was appropriate and accepted the sentence.

For three years following the court's acceptance of Adamson's plea and the provisions of the plea agreement, Adamson cooperated with authorities. On the basis of Adamson's testimony, Max Dunlap and James Robison were convicted of conspiracy and first degree murder, for which they were each sentenced to 29-30 years and the death penalty, respectively. While the Dunlap and Robison convictions were pending on appeal, the State moved to have Adamson's sentence imposed. Judge Birdsall sentenced Adamson to the agreed term of 48-49 years on December 7, 1978.

On February 25, 1980, the Arizona Supreme Court reversed the convictions of Dunlap and Robison and remanded the cases for new trials. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980); State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980). When the State sought to secure Adamson's testimony in the retrials, Adamson's lawyer responded with a letter to the State dated April 3, 1980, which stated that his client believed that his obligations under the plea agreement were terminated once he was sentenced. The letter further stated that Adamson requested additional consideration, including release, in exchange for his testimony at the retrials. The State, in a letter to Adamson's attorneys dated April 9, 1980, stated that it considered the plea agreement to still be in effect. The State further wrote that Adamson's refusal to comply with its terms constituted a breach of the agreement. It also stated that, due to this refusal, "the state may now institute proceedings necessary to carry into effect those things noted in the plea agreement that result from a violation," including reinstatement of the Shortly thereafter, on April 18, 1980, and again on April 22, 1980, the State called Adamson as a witness at a pretrial proceeding for the Dunlap and Robison retrials. Adamson reconfirmed his previous testimony concerning the Bolles killing, but asserted a Fifth Amendment privilege when questioned about another crime. After examining the State's letter of April 9, 1980, Superior Court Judge Robert L. Myers denied the State's motion to compel Adamson to testify. Judge Myers concluded that Adamson could legitimately assert his Fifth Amendment rights unless the State granted him immunity from prosecution. Although the State sought review of Judge Myers' denial of the motion to compel Adamson to testify, the Arizona Supreme Court declined to accept jurisdiction of the Special Action Petition. Adamson v. Superior Court, 125 Ariz. 579, 582, 611 P.2d 932, 935 (1980).

first degree murder charge and "its possible punishment of death."

Following this, on May 8, 1980, the State filed a new information charging Adamson with first degree murder. Id. Adamson challenged this by a Special Action in the Arizona Supreme Court. 125 Ariz. at 579, 611 P.2d at 933. The court held that Adamson, by refusing to testify, breached the plea agreement and that he had waived the defense of double jeopardy. Id. at 584, 611 P.2d at 937. The court vacated Adamson's second degree murder sentence, judgment of conviction, and guilty plea and reinstated the open murder charge. Following that decision, Adamson offered to accept the State's version of the agreement and testify against Dunlap and Robison. The State refused Adamson's offer and proceeded with the charge of first degree murder while apparently dropping its efforts to retry Dunlap and Robison. ¹

Adamson unsuccessfully sought federal habeas corpus review pursuant to 28 U.S.C. Sec. 2254. This court affirmed in an unpublished memorandum disposition the district court's denial of the petition. Thereafter, on October 17, 1980, Adamson was convicted by a jury of first degree murder. A sentencing hearing was held on November 14, 1980.

At the hearing, Judge Birdsall, acting pursuant to Arizona Revised Statute Annotated ("A.R.S.") Sec. 13-703, ² concluded that The issues before this court are: (1) whether seeking or imposing the death penalty following Adamson's assertion of his Fifth Amendment right constitutes prosecutorial or judicial vindictiveness, respectively; (2) whether imposition of a death

two aggravating circumstances were present. Those circumstances were: (1) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value, A.R.S. Sec. 13-703(F)(5), and (2) the defendant committed the offense in an "especially cruel, heinous and depraved manner," Sec. 13-703(F)(6). Judge Birdsall also found that Adamson had not established the existence of any mitigating circumstances beyond a reasonable doubt. He then sentenced Adamson to death. The Arizona Supreme Court affirmed Adamson's death sentence, holding that the facts adduced at the sentencing proceeding supported the finding of both the (F)(5) pecuniary gain aggravating circumstance and the "cruelty" portion of (F)(6)'s "heinous, cruel, or depraved" circumstance. State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). Adamson then instituted the present federal habeas corpus proceeding sentence by the judge who earlier found imprisonment an appropriate penalty for the same acts violated the Eighth Amendment prohibition against arbitrary and capricious sentencing in capital cases; (3) whether the Arizona statute violates the Sixth Amendment right to a jury determination of the elements of an offense by requiring the judge to make factual findings regarding aggravating circumstances; (4) whether the Arizona statute's aggravating factor that the offense was committed in an especially heinous, cruel or depraved manner is unconstitutionally vague as construed by the Arizona Supreme Court; (5) whether the Arizona statute violates the Eighth Amendment by precluding meaningful consideration of all mitigating evidence and by imposing a presumption of death; and (6) whether the admission of certain evidence at trial violated the Confrontation Clause.

II.

The Due Process Clause of the Fourteenth Amendment guarantees against judicial and prosecutorial vindictiveness. Thus, a defendant may not be penalized by the imposition of a harsher sentence simply for exercising a right to appeal. North Carolina v. Pearce, 395 U.S. 711, 723-26, 89 S.Ct. 2072, 2079-81, 23 L.Ed.2d 656 (1969). Similarly, a prosecutor cannot increase the charges against a defendant in retaliation for the defendant's assertion of a statutory right. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (extending the rule in Pearce to protect the accused against prosecutorial...