Adamson v. Ricketts

Decision Date18 April 1985
Docket NumberNo. 84-2069,84-2069
Citation758 F.2d 441
Parties18 Fed. R. Evid. Serv. 346 John Harvey ADAMSON, Petitioner-Appellant, v. James G. RICKETTS, et al., Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Timothy K. Ford, Seattle, Wash., Timothy J. Foley, Hancock, Rothert & Bunshoft, San Francisco, Cal., for petitioner-appellant.

William J. Schafer, III, Phoenix, Ariz., for respondent-appellee.

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

Before WRIGHT, POOLE and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

In this death penalty appeal we are confronted by these issues: (1) was the error in the admission of certain evidence in the underlying trial a confrontation clause violation and, if so, was it harmful; (2) what is the standard of review in the district court and this court in passing on the sufficiency of the evidence; (3) is the death penalty as applied under Arizona law unconstitutional because it takes the aggravating circumstances question from the jury and places it before the judge; (4) is the Arizona heinous, cruel or depraved aggravating factor constitutionally sound; and (5) is this case controlled by Supreme Court authority and particularly by Spaziano v. Florida, --- U.S. ----, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)?

FACTS

Adamson was arrested in 1976 for the bombing murder of investigative reporter Don Bolles. In 1977, he entered a plea agreement with the state under which he was to testify against two other persons and was permitted to plead guilty to second degree murder. He received a sentence of 48-49 years imprisonment, with actual imprisonment to be 20 years and two months.

The convictions of the other two persons against whom Adamson had testified were overturned. Adamson refused to testify in their retrial unless the state conceded to his list of "non-negotiable" demands, including release from custody. 1 The prosecution refused to negotiate and attempted to force Adamson to abide by the original agreement. Adamson v. Superior Court, 125 Ariz. 579, 582, 611 P.2d 932, 935 (1980). When that failed, the state filed a new information. Id.

Adamson brought a special action challenging that procedure. The Arizona Supreme Court held that Adamson breached the plea agreement and the first degree murder charges could be reinstated. 2 This court, in an unpublished memorandum, affirmed the denial of Adamson's habeas petition on the grounds that double jeopardy was not violated and due process did not require an evidentiary hearing. 3

The evidence at trial established that Bolles, an investigative reporter for the Arizona Republic, was to meet Adamson at a Phoenix hotel to gather information for a news story. Bolles left two notes to his supervisor, Bernie Wynn, identifying Adamson as Bolles' contact and giving the time and the place of the meeting. 4

While Bolles waited at the hotel, he received a phone call from someone whom he later identified as Adamson, changing the meeting place. Bolles then went to his car and began to back from the parking space en route to the rearranged meeting. At that moment the bomb exploded, projecting pieces of the car throughout the parking lot and into a neighboring construction site. The explosion shook area buildings. Bolles was mortally wounded. He was taken to a hospital and later died.

Further evidence properly admitted at trial linked Adamson to the materials to make the bomb and to the bombing. See State v. Adamson, 136 Ariz. 250, 256, 665 P.2d 972, 978, cert. denied, --- U.S. ----, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). Statements made by Bolles while in the hospital that he had gone to meet Adamson and that Adamson had phoned him were properly admitted as dying declarations. Id. at 254-55, 665 P.2d at 976-77. Bolles was also able to identify a photograph of Adamson.

Adamson was convicted of first degree murder and sentenced to death in 1980. Review of this conviction was denied by the Supreme Court. State v. Adamson, --- U.S. ----, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). After exhausting his state remedies, 5 he challenges his conviction and sentence in this habeas corpus petition.

We address the issues concerning the evidence before we turn to those challenging the death penalty statute.

IMPROPER ADMISSION OF HEARSAY

Don Bolles made several statements immediately after the bombing. To rescuers he said, "You better hurry up, boys, I feel like I'm going." He also said he was investigating "a Mafia called Emprise ..." and "... the Mafia was responsible." Additional statements were: "Adamson did it ..." and "Adamson [set or sent] me." Adamson, 136 Ariz. at 255, 665 P.2d at 977. The trial court admitted all statements as both dying declarations and excited utterances.

Adamson raises three challenges to the introduction of these hearsay statements: (1) the proper harmless error standard, (2) the standard of review of the state and district court's harmless error determinations, and (3) the correctness of their conclusions.

The Arizona Supreme Court held that Bolles' statements concerning the Mafia and that "Adamson did it" were inadmissible because Bolles had insufficient personal knowledge of the facts. Adamson, 136 Ariz. at 255, 665 P.2d at 977. The statement "Adamson [set or sent] me" was properly admitted.

Under our limited habeas corpus review, we must first decide whether this evidentiary error violated the Confrontation Clause. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984). Hearsay rules and the Confrontation Clause are not coextensive. Dutton v. Evans, 400 U.S. 74, 86-87, 91 S.Ct. 210, 218-219, 27 L.Ed.2d 213 (1970). Instead, we apply a two-part analysis to Confrontation Clause questions: declarant unavailability and reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); United States v. Tille, 729 F.2d 615, 621 (9th Cir.1984).

The finding that Bolles lacked personal knowledge establishes that there is insufficient indicia of reliability. See Dutton v. Evans, 400 U.S. at 88-89, 91 S.Ct. at 219-220 (second indicium is personal knowledge). The harmless error standard applies to this Sixth Amendment violation. 6 See Harrington v. California, 395 U.S. 250, 252-54, 89 S.Ct. 1726, 1727-29, 23 L.Ed.2d 284 (1969).

1. The Harmless Error Standard

Using the test that error does not require reversal if, beyond a reasonable doubt, the evidence had no influence on the verdict or the jury would have found defendant guilty, the Arizona Supreme Court determined this error to be harmless. Adamson, 136 Ariz. at 255-56, 665 P.2d at 977-78. The petitioner challenges this formulation of the harmless error standard, contending that the proper test is "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction," citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

The Supreme Court has recently restated the Chapman test for harmless constitutional error. "The question a reviewing court must ask is this: absent the ... [error], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?" United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). The Arizona Supreme Court and the district court properly formulated the harmless error standard.

2. Review of the State and District Courts' Findings

Petitioner questions whether or not this court must presume the correctness of the Arizona Court's finding of harmless error. Section 2254(d) requires the federal courts to presume the correctness of state court factual findings. 28 U.S.C.A. Sec. 2254(d). 7 This presumption applies to state appellate court findings. Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).

The presumption of correctness in section 2254 does not apply to mixed questions of law and fact. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982); Fendler v. Goldsmith, 728 F.2d 1181, 1190-91 n. 21 (9th Cir.1984). Whether the admitted constitutional error was harmless is a mixed question, 8 which we review de novo. Proffitt v. Wainwright, 685 F.2d 1227, 1259 n. 48 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983). See Fendler v. Goldsmith, 728 F.2d at 1190 & n. 20.

Petitioner contends that the district court's review was insufficient because it only reviewed the record for evidence supporting the guilty verdict. The court explicitly reviewed the whole record and made detailed findings of fact. 9 We review the supplemental facts under a clearly erroneous standard. Proffitt v. Wainwright, 685 F.2d at 1259 n. 48; Whitehead v. Wainwright, 609 F.2d 223, 224 (5th Cir.1980). They are overwhelmingly supported in the record.

3. The Error Was Harmless

Adamson argues that some excluded evidence shows that the statements were not harmless. He attempted to question the jury foreman. The trial court was correct in excluding that evidence because the jury's deliberative process may not be inquired into. Fed.R.Evid. 606(b); Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 457 n. 5, 78 L.Ed.2d 267 (1983); 17 Ariz.Rev.Stat. 24.1(d).

Adamson also introduced a newspaper clipping purporting to establish the hearsay statements' harmful effect on the jury. The district court found the statements attributable to the juror did not indicate the improperly admitted evidence contributed to the conviction and the story was not probative evidence. We agree with that conclusion. 10

Adamson argues that the evidence against him is circumstantial and controverted. He challenges the credibility of a government witness, Lettiere. He argues further that the testimony of his alibi witness and the newspaper lot guard show the weakness of the evidence used to convict him. Because he called a witness to testify that he had a...

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