BEATY v. STEWART 0099007

Docket Nº:0099007
Case Date:December 06, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

BEATY v. STEWART 0099007




DONALD EDWARD BEATY, Petitioner-Appellant, v. TERRY STEWART, Director, Respondent-Appellee.

No. 00-99007; D.C. No. CV-92-02976-PHX-RGS


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

Roger G. Strand, District Judge, Presiding

Argued and Submitted December 6, 2001 Submission Deferred January 29, 2002 Resubmitted August 15, 2002 Seattle, Washington

Filed August 27, 2002

Before: Diarmuid F. O’Scannlain, Susan P. Graber, M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain


John E. Charland, Phoenix, Arizona, argued the cause for the petitioner-appellant. Jess A. Lorona, Horne Ducar Lorona & Slaton, LLP, was on the briefs.

Kent E. Cattani, Chief Counsel, Criminal Appeals Section, Phoenix, Arizona, argued the cause for the respondent-appellee. Janet Napolitano, Attorney General, Jack Roberts, Assistant Attorney General, and Paul J. McMurdie, Criminal Appeals Section, were on the briefs.


O’SCANNLAIN, Circuit Judge:

In this capital habeas case, we must decide whether the admission of a confession obtained by a jail psychiatrist constitutes prejudicial error. We also consider several other claims, including whether trial counsel rendered ineffective assistance of counsel in failing to pursue allegations of juror misconduct.


On May 9, 1984, thirteen-year-old Christy Ann Fornoff disappeared at a Tempe, Arizona apartment complex while making collections for her newspaper route. Donald Beaty, a maintenance person for the complex, actively assisted the police in searching for Fornoff. Although the police located her collection book near the complex, she was nowhere to be found.

In the early morning of May 11, Joseph Kapp, a tenant, encountered Beaty while throwing out his trash. Beaty told Kapp that he had found a body behind the dumpster and that he had called the police. Kapp observed the body, spoke with Beaty for a few minutes, and then returned to his apartment.

The police later arrived and determined that the body was Fornoff’s. A medical examiner concluded that Fornoff had been asphyxiated by smothering and that she had been sexually assaulted, either contemporaneously with or shortly after her death. The examiner also opined that she had died within two hours of her disappearance.

The police focused their investigation upon Beaty. Vomit smeared on the body matched a substance found in Beaty’s closet. The blood, semen, and hair found on the body was consistent with Beaty’s. Hair found on Beaty’s closet carpet, couch, bedroom, and bathroom was consistent with Fornoff’s. Fibers found on the body matched Beaty’s carpet and a blanket in his bedroom. Ferret hair was found on the body; the tenant who lived in Beaty’s apartment a few months prior to the murder owned a ferret.1

Police records showed that Beaty had called the police at 5:52 a.m. According to Kapp, he had returned to his apartment at 5:50 a.m. The timing suggested that Beaty had lied to Kapp about having called the police. The police also specu-

1It is worth noting that the owner of the ferret, Angel Bello, has a lengthy criminal record, including sexual assault convictions in 1981 and 1988. While Bello testified at Beaty’s trial, the jury was not informed of his criminal history.

lated that Beaty had moved the body after speaking with Kapp. Robert Jark drove his truck in front of the dumpster at approximately 4:50 that morning. As with Kapp, Jark was sure that a body was not visible from in front of the dumpster. However, when the police arrived, the body stuck out noticeably beyond the dumpster’s edge.

Beaty told police that he was with George Lorenz, a tenant, at the time Fornoff disappeared, and that Teresa Harder, another tenant, saw them together. However, Lorenz denied being with Beaty that night, and Harder similarly denied seeing them together. Beaty also claimed that the police had searched his apartment the night Fornoff disappeared. However, the two officers who searched the complex claimed that they did not enter Beaty’s apartment. Finally, the police found it suspicious that Beaty had attempted, unsuccessfully, to borrow a friend’s car at 11:30 p.m. the night after Fornoff disappeared. The police speculated that Beaty wanted to borrow a car to move the body.

On May 21, 1984, Beaty was arrested and charged with Fornoff’s murder and sexual assault. A day later, Dr. George O’Connor, a prison psychiatrist, met with Beaty for about an hour. O’Connor routinely met with newly admitted, high-profile inmates to determine whether they were a threat to themselves. The record does not reveal much about their conversation. O’Connor apparently inquired whether Beaty felt depressed and whether he wished to talk with someone on a regular basis. O’Connor and Beaty also discussed a medical problem Beaty was having with his foot and Beaty’s family’s reaction to his arrest.

After the conversation, O’Connor concluded that Beaty was not suffering from any significant psychiatric problems. Nonetheless, O’Connor decided that he would occasionally drop by and check up on him. The following day, O’Connor spoke with Beaty about his foot and arranged for him to be seen by an orthopedic doctor. The record does not reveal whether O’Connor and Beaty discussed anything other than Beaty’s foot problem.

Approximately two months later, O’Connor recommended transferring Beaty from the main jail to the jail’s psychiatric facility. O’Connor’s supervisor approved the recommendation, and Beaty did not object to the transfer. Several factors motivated O’Connor’s recommendation to transfer Beaty. First, Beaty needed space to rehabilitate his injured foot. Beaty had been confined to his cell from the time of incarceration because of several death threats from other inmates. Second, the jail’s psychiatric facility offered a safer place for Beaty because it was isolated from the jail’s general population. Third, Beaty was becoming increasingly agitated and depressed, perhaps because of his confinement to his cell. Indeed, Beaty underwent a hunger strike, and he also repeatedly complained that inmates were harassing him.

The record is unclear as to the nature and the extent of the treatment Beaty received while at the psychiatric unit. In any event, Beaty participated in a "counseling group" moderated by O’Connor. The group consisted of five female and five male inmates, including Beaty. The purpose of the group was to foster respect between male and female inmates by bringing them together in a small group. O’Connor described the group’s purpose as "bring[ing] men and women prisoners together to explore the difficulties that they may have had in interrelating with members of the opposite sex in their personal lives." O’Connor chose Beaty for the group; while Beaty had the option of not participating, he likely would have been transferred back to the main jail if he had refused.

Beaty, along with the rest of the group participants, signed a document entitled "Interpersonal Relationships Group Contract." The document stated that any information disclosed to the group would be kept confidential. Specifically, it stated, "I understand that all group communication is confidential and therefore group business cannot be discussed outside of group. Only in this way can I feel free to express my feelings."

The group met twice a week and each session lasted between an hour and an hour-and-a-half. During these sessions, group members occasionally harassed Beaty regarding the nature of his crime. In particular, some group members called him "cold blooded."

After a few weeks, Beaty approached O’Connor at the end of a session. It was about five to ten minutes after the session had formally ended, but some of the group was still milling around. Beaty and O’Connor were conversing casually2 when Beaty suddenly complained that the group had unfairly labeled him a "terrible thing." He told O’Connor that he did not mean to kill Fornoff. He explained that he accidentally suffocated her when he put his hand over her mouth to muffle her screams. While O’Connor was surprised by Beaty’s confession, he described the statement as an "overflow of feelings from that particular group."

O’Connor did not immediately disclose Beaty’s confession to anyone, and the case proceeded to trial. The state’s case rested primarily on the physical evidence tying Beaty to the crime. The state also stressed the events surrounding Beaty’s discovery of the body and the fact that two witnesses discredited his alibi. Beaty, in turn, attacked the reliability of the state’s physical evidence. He stressed that Kapp had been playing a "drinking game" that morning. Beaty suggested that another unknown tenant committed the murder and he faulted the police for not thoroughly investigating the other tenants. Finally, Beaty emphasized that he had actively assisted the police in searching for Fornoff the night she disappeared. On March 18, 1985, the trial court declared a mistrial after the jury deadlocked ten to two in favor of guilt.

2Specifically, O’Connor testified that he was "not questioning Mr. Beaty particularly. It [was] casual."

On May 8, 1985, Beaty’s second trial commenced. Two days later, O’Connor went to state court to testify in an unrelated case. While waiting to testify, O’Connor spoke casually with a detention officer. During the course of the conversation, O’Connor disclosed Beaty’s confession. The prosecution quickly learned about the conversation and contacted O’Connor. O’Connor refused to testify but, after an evidentiary hearing, the trial court ordered him to do so.

During the second trial, the state presented much of the same evidence as it had offered at the first trial, but with the addition of OConnors testimony. The jury unanimously found Beaty guilty of first degree murder and sexual assault. The judge thereafter conducted a...

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