Andrews v. Shulsen

• Decision Date: 06 October 1986
• Docket Number: Nos. 84-2781,85-1024,s. 84-2781
• Citation: 802 F.2d 1256
• Parties: William ANDREWS, Petitioner-Appellant Cross-Appellee, v. Kenneth V. SHULSEN, Warden of the Utah State Prison, and David L. Wilkinson, Attorney General of the State of Utah, Respondents-Appellees Cross-Appellants. Washington Legal Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1256

802 F.2d 1256

William ANDREWS, Petitioner-Appellant Cross-Appellee, v. Kenneth V. SHULSEN, Warden of the Utah State Prison, and David L. Wilkinson, Attorney General of the State of Utah, Respondents-Appellees Cross-Appellants Washington Legal Foundation, Amicus Curiae.

Nos. 84-2781, 85-1024.

United States Court of Appeals Tenth Circuit.

Oct. 6, 1986.

Timothy K. Ford, Seattle, Wash., for petitioner-appellant, cross-appellee.

Earl F. Dorius, Asst. Atty. Gen. (David L. Wilkinson, Atty. Gen., and David J. Schwendiman, Asst. Atty, Gen.), State of Utah, Salt Lake City, Utah, for respondents-appellees, cross-appellants.

Daniel J. Popeo and George C. Smith on the brief for Washington Legal Foundation, amicus Curiae, Washington, D.C.

Before McKAY, McWILLIAMS, and SEYMOUR, circuit Judges.

SEYMOUR, Circuit Judge.

William Andrews appeals from an order of the United States District Court for the District of Utah dismissing a habeas corpus petition challenging the constitutionality of his death sentence. See Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 1984) (Andrews IV ). We affirm.

I. BACKGROUND

The facts of this case, as reported in opinions of the Utah Supreme Court, are as follows:

"[Dale Pierre,] Andrews, and [Keith] Roberts were airmen stationed at Hill Air Force Base, Utah. Stanley Walker, Michelle Ansley, Carol Naisbitt, Cortney Naisbitt (son of Carol Naisbitt), and Orren W. Walker, Jr. (father of Stanley Walker) were tied up, made to lie on the floor, and forced to drink liquid Drano on the evening of April 22, 1974, in the basement of the Hi-Fi Shop in Ogden, Utah, by [Pierre] in company with Andrews, who aided [Pierre] by pouring the caustic substance into a plastic cup for accomplishment of these violent acts. [Pierre] and Andrews both had hand guns and [Pierre] finally shot all of the victims in the head with either a .25 caliber or .38 caliber handgun, which caused the deaths, within a brief period of time during that April evening, of Stanley Walker, Michelle Ansley (who had also been raped by [Pierre] just before he shot her) and Carol Naisbitt.

....

"[A]fter shooting [Orren Walker, Pierre] vehemently kicked a ball point pen into one of his ears and attempted to strangle him with a cord."

State v. Pierre, 572 P.2d 1338, 1343-44 (Utah 1977) (footnote omitted), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).

"Evidence by witness Orren W. Walker, Jr. at the guilt phase revealed that [Andrews] asked Pierre in the basement of the Hi-Fi Shop, after Pierre had discharged his hand gun (not at that time shooting anyone), 'What did you do that for, man'; that [Andrews] was nervous and upset; that when Walker made no movement after being told by Pierre to administer the Drano to Michelle Ansley, Stanley Walker, and Cortney Naisbitt, [Andrews] said to Walker, 'Man, there is a gun at your head'; that either before or after the administration of the Drano to the victims [Andrews] said: 'I can't do it, I'm scared', though Walker stated he did not know to what this remark of [Andrews'] referred; and that Andrews, who left and returned to the basement on more than one occasion during the evening of April 22nd, was not observed firing any gun nor was he present when Michelle was raped and all the victims were shot."

State v. Andrews, 574 P.2d 709, 709-10 (Utah 1977) (Andrews I ), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).

"Evidence further established that Orren and Stanley Walker were robbed in an aggravated manner of personal property in their possession (equipment from the Hi-Fi Shop being taken from Stanley and a watch and wallet being taken from Orren) ... by [Pierre], Andrews, and Roberts. [Pierre] and Andrews were identified inside of said shop during the robbery and Roberts was identified walking in front of it."

Pierre, 572 P.2d at 1343.

The three men were apprehended and tried together before a jury. Andrews and Pierre were found guilty on three counts of first degree murder and two counts of aggravated robbery. Roberts was convicted of aggravated robbery, but the jury was unable to reach a verdict on the murder charges. After a separate sentencing hearing, the same jury voted unanimously to impose the death penalty on Andrews and Pierre for each of the murder convictions. On November 27, 1974, the trial judge sentenced them to death before a firing squad. During the next six years, Andrews unsuccessfully challenged his conviction and sentence on direct appeal, see Andrews I, 574 P.2d 709, and in collateral state proceedings, see Andrews v. Morris, 607 P.2d 816 (Utah) (Andrews II ), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980).

In November 1980, Andrews filed this action for federal habeas corpus relief. The State responded by moving to dismiss his petition on the merits and on the basis of alleged procedural defaults in the state courts. While the federal proceedings were pending, the Utah Supreme Court decided State v. Wood, 648 P.2d 71 (Utah 1981) (per curiam), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982), which raised the burden of persuasion in the sentencing phase of Utah capital cases. The federal district court stayed further proceedings while Andrews again sought collateral state relief. The Utah Supreme Court declined to apply Wood retroactively and denied Andrews' petition for relief. See Andrews v. Morris, 677 P.2d 81 (Utah 1983) (Andrews III ).

The district court then ordered the parties to address all outstanding issues. In his second amended petition, Andrews claimed that: (1) Utah had denied him a fair and impartial jury trial; (2) the Utah capital punishment statute was unconstitutional; (3) the statute resulted in the arbitrary and capricious imposition of the death penalty; (4) the Utah Supreme Court unconstitutionally failed to apply the Wood decision retroactively; (5) his death sentence is improper under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), because there was no finding that he intended to kill; (6) Utah's provision for execution before a firing squad violates the Establishment Clause; and (7) this method of execution constitutes cruel and unusual punishment.

The district court concluded that no evidentiary hearing was required to reach a decision, see Andrews IV, 600 F.Supp. at 415-16, declined to resolve the issue of procedural default, see id. n. 4, and ruled against Andrews on the merits of his claims, see id. at 415-32. Accordingly, the court denied Andrews' petition for a writ of habeas corpus and dismissed the action. See id. at 432. This appeal followed. With the State's consent, see Transcript of Oral Argument at 31-33, we withheld our resolution of the case pending the Supreme Court's decision in Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

II. FAIRNESS OF ANDREWS' TRIAL

Andrews asserts that adverse publicity and hostile community sentiment undermined his right to a fair trial, and that he is entitled to a federal evidentiary hearing on this claim. Having reviewed the briefs and the appellate record, we conclude that no hearing is required under the principles of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and that the constitutional standard for a fair trial has been met. We agree with the district court's treatment of these two issues. Accordingly, we adopt the relevant portion of that court's opinion as our own. See Andrews IV, 600 F.Supp. at 415-20.

III. CONSTITUTIONALITY OF UTAH DEATH PENALTY STATUTE

We next address Andrews' claim that the Utah death penalty statute is unconstitutional. The Supreme Court has mandated that the discretion inherent in capital sentencing decisions "must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell and Stevens, JJ.); accord Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). Although the constitutionality of capital punishment laws ultimately turns on an examination of each distinct system, e.g., Pulley v. Harris, 465 U.S. 37, 45, 104 S.Ct. 871, 876, 79 L.Ed.2d 29 (1984); Zant, 462 U.S. at 874-75, 103 S.Ct. at 2741, the Supreme Court has emphasized several points which guide our consideration of this case.

A valid capital punishment statute must prescribe aggravating circumstances or their equivalent which genuinely narrow the class of persons who are subject to execution. Zant, 462 U.S. at 876-78, 103 S.Ct. at 2742-43; Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (plurality opinion); accord Pulley, 465 U.S. at 53, 104 S.Ct. at 881; Jurek v. Texas, 428 U.S. 262, 270-71, 96 S.Ct. 2950, 2955-56, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U.S. 242, 250 & n. 8, 256 n. 14, 96 S.Ct. 2960, 2965 & n. 8, 2968 n. 14, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). If the prosecution establishes that a defendant's crime fits at least one of these legislatively defined categories, the sentencing body may consider relevant non-statutory aggravating factors, see California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171 (1983); Zant, 462 U.S. at 878, 103 S.Ct. at 2743, and must be allowed to consider any mitigating evidence before deciding on a death sentence, see Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978); accord Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982). The sentencing phase of a capital case thus involves an individualized determination of the appropriate penalty based upon relevant characteristics of the defendant and the circumstances of his offense. Ramos, 463 U.S. at 1006, 103 S.Ct. at 3456; Zant, 462 U.S. at 879, 103 S.Ct. at 2743. ...