Rupe v. Wood

• Decision Date: 15 August 1996
• Docket Number: 94-99014,Nos. 94-99013,s. 94-99013
• Citation: 93 F.3d 1434
• Parties: 96 Cal. Daily Op. Serv. 6089, 96 Daily Journal D.A.R. 9969 Mitchell Edward RUPE, Petitioner-Appellee-Cross-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1434

93 F.3d 1434

96 Cal. Daily Op. Serv. 6089, 96 Daily Journal

D.A.R. 9969

Mitchell Edward RUPE, Petitioner-Appellee-Cross-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellant-Cross-Appellee.

Nos. 94-99013, 94-99014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 6, 1995.

Decided Aug. 15, 1996.

Kathryn Ross, Jones, Ross, Besman & Connolly, Lynnwood, Washington, DC, Todd

Maybrown, Allen, Hansen & Maybrown, Seattle, Washington, DC, for petitioner-appellee-cross-appellant.

Christine O. Gregoire, Paul D. Weisser, John J. Samson, Assistant Attorneys General, Olympia, Washington, DC, for respondent-appellant-cross-appellee.

Appeals from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-91-01635-TSZ.

Before: WALLACE, SCHROEDER and PREGERSON, Circuit Judges.

SCHROEDER, Circuit Judge:

This is an appeal by the Superintendent of the Washington State Penitentiary, Tana Wood, from a judgment of the district court granting a writ of habeas corpus to petitioner Mitchell Rupe. Rupe was convicted of first degree murder for the shooting deaths of two bank tellers and sentenced to death. The district court declined to disturb the underlying convictions but granted the writ and vacated the sentence on two grounds. First, it ruled that Rupe would suffer cruel and unusual punishment in violation of the Eighth Amendment if he were put to death by hanging, because Rupe weighs over 400 pounds and the planned execution could decapitate him. Second, the district court held that Rupe is entitled to a new penalty phase hearing, because the jury should have been allowed to consider a polygraph test of the state's chief witness as mitigating evidence. The polygraph test supports Rupe's theory that the witness, who was an accessory to Rupe's crimes, played a larger role than he admitted in the murders. The district court denied all of Rupe's other challenges to the penalty and guilt phases of his prosecution, and Rupe cross appeals.

We affirm the grant of a new penalty phase hearing so that the jury may consider the previously excluded polygraph evidence. We dismiss Wood's appeal and vacate the decision below as moot on the Eighth Amendment hanging issue because Washington law has changed. We affirm the district court on all issues raised in Rupe's cross-appeal.

FACTS AND PROCEDURAL HISTORY

The facts and major contentions of both sides are thoroughly discussed in two published opinions of the Washington Supreme Court, State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984)("Rupe I ") and State v. Rupe, 108 Wash.2d 734, 743 P.2d 210 (1987)("Rupe II "), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988), and two published opinions of the district court, Rupe v. Wood, 863 F.Supp. 1307 (W.D.Wash.1994) and Rupe v. Wood, 863 F.Supp. 1315 (W.D.Wash.1994). We summarize the background facts very briefly.

Rupe was convicted and sentenced to death for killing two bank tellers during a robbery of a Tumwater State Bank trailer branch in West Olympia, Washington. The robbery occurred in September of 1981, when Rupe was 27. The record reflects that Rupe had a productive career in the army until 1980 when he was honorably discharged because he was unable to meet new army weight standards. Following his discharge, Rupe's life became dysfunctional. See generally Rupe II, 108 Wash.2d at 780-82, 743 P.2d at 235-36 (dissenting opinion of Justice Pearson, discussing details of Rupe's civilian and military life).

The evidence against Rupe was strong. His victims, Candace Hemmig and Twila Capron, were found at approximately 11:00 a.m. by Capron's husband. Hemmig was dead and Capron did not survive massive brain injuries. Rupe's bloody checkbook was found on the bank counter, and Rupe himself approached an investigating officer at approximately 11:40 a.m. and told the officer that he had been in the bank that morning. After several interviews over the next few days, Rupe confessed, having been told by police officers that his polygraph results were causing them to question his credibility.

Rupe later recanted his confession. At trial he testified that two days before the actual robbery, he and his friend, Monte Yovetich, had gone to the bank to rob it, but Rupe could not go through with the plan. Rupe testified he had returned to the bank the day of the robbery to take care of an overdrawn account, and on his way out he saw Yovetich in the parking lot with a green satchel. Rupe testified he was concerned that Yovetich would rob the bank, because Rupe had lent his pistol, in the green satchel, to Yovetich two days before. Rupe explained that his confession stemmed from guilt for having planned the robbery, and a feeling of responsibility for the gun.

The state's principal witness was Yovetich. Yovetich admitted that he and Rupe had discussed robbing the bank, but Yovetich denied any involvement on the day of the shootings. Yovetich testified that after the robbery, Rupe confessed to him. According to Yovetich, Rupe robbed the bank and then stashed the green satchel with the money and the murder weapon in Yovetich's garage. Yovetich said that he and a friend spent some of the money and then threw the murder weapon under a bridge, which is where the police later recovered it.

Before trial, Yovetich was administered a polygraph examination in which he denied participation in the robbery and denied lying about throwing Rupe's pistol under the bridge. The polygraph examiner originally determined that Yovetich was untruthful in the examination, but later testified that the data was not entirely reliable because of Yovetich's nervousness, lack of sleep and hostility toward police.

The trial court refused Rupe's proffer of the Yovetich polygraph test during both the guilt and penalty phases of the trial. At that time, Washington state law disfavored admitting polygraph results into evidence absent a stipulation. State v. Renfro, 96 Wash.2d 902, 639 P.2d 737, cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982).

In Rupe's initial appeal to the Washington Supreme Court, the court affirmed his conviction, but ordered a new penalty phase hearing because evidence of Rupe's gun collection had erroneously been presented to the jury. Rupe I, 101 Wash.2d at 703, 683 P.2d at 594. The Washington Supreme Court rejected Rupe's argument that the polygraph results should have been admitted at both the guilt and penalty phases, resting its decision on the view that the polygraph results were too unreliable to merit consideration:

The [polygraph] evidence offered by the defendant simply does not reach the minimal threshold of reliability necessary to its admission in a criminal proceeding.

Id. at 690, 683 P.2d at 588.

On remand, the second penalty jury also sentenced Rupe to death, and the Washington Supreme Court upheld the second sentence on appeal. The Washington Supreme Court then conducted an independent statutory review of Rupe's sentence, as directed by Washington statute, RCW 10.95.100, and upheld the sentence after that review as well. Rupe's subsequent restraint petitions were similarly denied, as were his state habeas corpus petitions.

Rupe filed his federal habeas petition in 1990. The district court entered its judgment in September of 1994.

I. The State's Appeal.

A. Death by Hanging.

At the time Rupe was sentenced to death, a Washington prisoner sentenced to death would be executed by hanging unless the prisoner chose to die by lethal injection. Rupe, unwilling to select the method of his death, challenged his potential execution by hanging as cruel and unusual punishment in violation of the Eighth Amendment. The district court agreed that hanging Rupe would constitute cruel and unusual punishment, 863 F.Supp. 1307 (W.D.Wash.1994) and Wood appealed.

After Wood's appeal was argued, Washington amended its law, reversing the prior presumption in favor of hanging. Under current Washington law, a prisoner sentenced to death will be executed by lethal injection, unless the prisoner chooses to be hanged. RCW 10.95.180 (effective June 6, 1996). Wood therefore moved to have the portion of her appeal relating to hanging Rupe dismissed as moot. In response, Rupe suggested that the new statute might not apply to him because he was originally sentenced under the old law. Washington therefore affirmatively represented to this court that if Rupe is executed, he will be executed in accordance with the new law, stating that "Rupe will be executed by lethal injection, unless he elects judicial hanging or lethal injection is held to be invalid." Accordingly, we dismiss as moot the portion of Wood's appeal relating to Rupe's hanging, and vacate the concordant portion of the district court's opinion at 863 F.Supp. 1307.

B. The Polygraph Evidence.

Prior to Rupe's trial, Monti Yovetich, who was the state's key witness and an accessory to Rupe's crimes, took a polygraph examination. The polygraph examiner concluded that Yovetich was lying when he denied having anything to do with the killings. Rupe first proffered Yovetich's polygraph results during the guilt phase of his trial. At the time, Washington law excluded polygraph evidence unless all parties stipulated to its admissibility. Renfro, 96 Wash.2d 902, 639 P.2d 737. But, the Washington courts had also indicated that, given a strong enough showing that both modern polygraph technique and the particular polygraph results being proffered were reliable, they would consider deviating from the general rule barring polygraph evidence absent a stipulation. Cf. State v. Pleasant, 21 Wash.App. 177, 188-92, 583 P.2d 680, 687-88 (1978), cert. denied, 441 U.S. 935, 99 S.Ct. 2058, 60 L.Ed.2d 664 (1979); State v. Woo, 84 Wash.2d 472, 475, 527 P.2d 271, 273 (1974). Thus, the trial court heard testimony on the reliability of polygraphs in general and Yovetich's in particular; it noted...