Andrews v. Shulsen

Decision Date13 December 1984
Docket NumberCiv. No. C-78-0462W.
PartiesWilliam ANDREWS, Petitioner, v. Kenneth V. SHULSEN, Warden of the Utah State Prison, and David L. Wilkensen, Attorney General of the State of Utah, Respondents.
CourtU.S. District Court — District of Utah

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Timothy K. Ford, Seattle, Washington, Parker M. Nielson, Salt Lake City, Utah, for petitioner.

Earl F. Dorius, David J. Schwendiman, Asst. Attys. Gen., Salt Lake City, Utah, for respondents.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This action comes before the court on a petition for a writ of habeas corpus filed by William Andrews pursuant to 28 U.S.C. § 2254. The court heard oral arguments on the issues presented by the petition on August 10, 1984, Timothy K. Ford appearing for petitioner and Earl F. Dorius and David J. Schwendiman appearing for respondents. After carefully considering the oral arguments, memoranda, pertinent authorities and the entire record in this matter, the court renders the following decision and order.

I. BACKGROUND

The court will begin with a brief recitation of the procedural and factual background.1 Petitioner and Pierre Dale Selby, aka Dale S. Pierre ("Selby"), were convicted of three counts of first degree murder and two counts of aggravated robbery for the killings of three people in the course of a robbery at the Hi Fi Shop in Ogden, Utah. After a bifurcated sentencing proceeding, the Second District Court of the State of Utah sentenced petitioner and Selby to death.

The evidence presented at the guilt phase of petitioner's trial reflects a brutal and torturous detention, robbery and murder, which left three people dead and two seriously injured. On the evening of April 2, 1974, petitioner and Selby took captive three Hi Fi Shop employees to facilitate the robbery of stereo equipment. Stanley Walker, assistant manager of the store in his early twenties, Michelle Ansley, a nineteen-year-old part-time bookkeeper and cashier, and Cortney Naisbitt, a seventeen-year-old relative of the store's owner, were forced at gunpoint into the store's basement by petitioner and Selby and were bound hand and foot.

Stanley's father, Orren Walker, became concerned when Stanley did not arrive home for dinner that evening and went to the Hi Fi Shop to check on his son. As Orren entered the store, petitioner and Selby confronted him with guns and forced him down the stairs to the basement. Orren there saw the three young people bound on the floor pleading for their lives. Selby attempted to force Orren to give the young people a drink, which later proved to be a liquid drain cleaner containing sodium hydroxide. When Orren refused, petitioner placed a gun at Orren's head threatening him. Petitioner and Selby then tied Orren's hands and feet and placed him on the basement floor by the others.

At about 8:00 p.m., Carol Naisbitt went to the Hi Fi Shop to look for her son Cortney after he had failed to return home from an errand. Petitioner and Selby captured Mrs. Naisbitt at gunpoint, bound her and placed her next to her son.

Eventually, petitioner poured and Selby caused each of the five victims to drink the liquid drain cleaner. Orren Walker, one of the two survivors, let the chemical slowly drain unnoticed out of his mouth. Apparently to ensure that the caustic liquid had its desired effect, the assailants covered each victim's mouth with tape.

Finally, Selby methodically shot each of the victims in the head. First, Carol and Cortney Naisbitt were shot. Next, Selby's bullet narrowly missed Orren Walker on his first attempt. Stanley Walker was then shot and Selby's second shot at Orren struck him in the head. After leaving for a brief time, Selby untied Michelle Ansley, who had not been shot, took her to a back room and raped her.

Michelle was returned to her place on the floor by the others and was herself shot in the head by Selby. Stanley was then shot a final time. After Selby later tried to discern if Orren was dead, he attempted to strangle Orren with an electrical cord and kicked a long ballpoint pen deep into Orren's ear.

Orren feigned death throughout the ordeal and somehow managed to survive the strangulation attempt by tensing his neck muscles. Michelle and Stanley were dead at the scene; Carol Naisbitt died enroute to the hospital; Cortney survived, but was hospitalized for months and suffered serious permanent injuries.

Orren Walker gave his eye witness testimony of the events, identifying petitioner and Selby as the assailants. Orren further testified that petitioner left the Hi-Fi Shop before any of the fatal shots were fired by Selby and that he did not see petitioner again that night. In addition to Orren's account, witness after witness corroborated his testimony and implicated petitioner and Selby.2

After a lengthy trial, petitioner and Selby were found guilty of three counts of first degree murder and two counts of aggravated robbery. Another co-defendant in the case, Keith Roberts, was found guilty of two counts of aggravated robbery, but the jury was unable to reach a verdict as to Roberts on the first degree murder charges.

A separate sentencing hearing was conducted pursuant to Utah's then recently enacted capital sentencing statute. See Utah Code Ann. § 76-3-207 (1973). At that phase of the proceeding, the State introduced Andrews' military records, prior criminal history and testimony indicating that during the prior ten years, ten persons serving life sentences at the Utah State Prison had been released. Evidence was also presented that the average term of those who had been released was thirteen years, one month, and that of the ten released, three thereafter committed other murders.

Petitioner presented expert testimony that capital punishment is not a deterrent. Further, a former prison chaplin presented a historical overview of capital punishment, and stated that biblical text does not support the death penalty. Andrews testified concerning his background, family circumstances, prior criminal history and education.

After receiving sentencing instructions and deliberating, the jury reported a unanimous agreement to impose the sentence of death. On November 27, 1974, the court sentenced petitioner and Selby to death by shooting pursuant to Utah law.

Petitioner challenged his conviction on direct appeal, see State v. Andrews, 574 P.2d 709 (Utah 1977), reh'g denied, 576 P.2d 857 (Utah), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978), and in collateral proceedings in the state courts, see Andrews v. Morris, 607 P.2d 816 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980). Petitioner then filed this federal habeas corpus action claiming that several constitutional errors were committed in his state trial and that the Utah capital sentencing laws are unconstitutional in various respects. Respondent moved to dismiss the petition on January 6, 1981. On June 16, 1981, this court entered a preliminary order granting a limited evidentiary hearing on the alleged "inherently prejudicial atmosphere in the trial in this case" and "the alleged arbitrary and discriminatory application of the death sentence in Utah." Additionally, the court denied an evidentiary hearing in other of the areas raised by petitioner. Preliminary Order at 10 (June 16, 1984).

On September 21, 1981, the Utah Supreme Court decided State v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982), changing the capital sentencing standard under Utah law from the standard applied in this case. Prior to the scheduled evidentiary hearing on the limited issues stated above, this court entered an order staying these proceedings to allow petitioner to make appropriate application for relief to the Utah Supreme Court based on the Wood decision. On November 16, 1983, the Utah court entered a decision refusing to apply the Wood sentencing standard retroactively to petitioner. See Andrews v. Morris, 677 P.2d 81 (Utah 1983). Because petitioner's state remedies on that issue had then been exhausted,3 this court ordered that the parties submit supplemental memoranda on all issues presented by the petition before this court.

II. DISCUSSION

Petitioner raises seven claims in his second amended petition which he argues justify federal habeas corpus relief: (1) denial of a fair and impartial jury trial; (2) application of an unconstitutional death penalty statute; (3) arbitrary and discriminatory imposition of the death penalty; (4) arbitrary and irrational failure by the Utah Supreme Court to apply the Wood standard retroactively in this case; (5) disproportional application of the death penalty contrary to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); (6) application of a method of execution in violation of the First Amendment; and (7) imposition of cruel and unusual punishment in violation of the Eighth Amendment. Andrews has moved for an evidentiary hearing on all of his claims. For the reasons discussed below petitioner's claims involve purely legal issues or for other reasons do not require a federal evidentiary hearing. The portion of the preliminary order granting such a hearing must therefore be vacated. The court will discuss each of petitioner's claims.4

A. Fair and Impartial Jury Trial

Petitioner Andrews first claims that he was denied his Sixth and Fourteenth Amendment right to a fair and impartial jury trial as a result of extensive pretrial publicity and community prejudice, a hostile trial atmosphere evidenced by an improper communication with jurors, and the improper release of the jurors into the community during the trial and between the guilt and sentencing phases of the trial. Venue of the trial was changed from Weber County to Davis County, Utah; however, petitioner contends that a fair trial could be obtained only by a further...

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