Benn v. Lambert

• Decision Date: 26 February 2002
• Docket Number: No. 00-99014.,00-99014.
• Parties: Gary BENN, Petitioner-Appellee, v. John LAMBERT, Superintendent of the Washington State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.3d 1040

Gary BENN, Petitioner-Appellee, v. John LAMBERT, Superintendent of the Washington State Penitentiary, Respondent-Appellant.

No. 00-99014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2001.

Filed February 26, 2002.

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Suzanne Lee Elliott, & David B. Zuckerman, Seattle, WA, for the petitioner-appellee.

John J. Samson, & Donna H. Mullen, Assistant Attorneys General, Olympia, WA, for the respondent-appellant.

Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-98-05131-FDB.

Before: REINHARDT, TROTT and W. FLETCHER, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

The State of Washington, through the superintendent of the Washington State Penitentiary, appeals the district court's decision to grant Gary Michael Benn's habeas corpus petition, arguing that the district judge erred in holding that the Washington State Supreme Court decision was contrary to or involved an unreasonable application of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. Because we hold that the state court's decision that there was no Brady violation in Benn's case constitutes an unreasonable application of clearly established Supreme Court law, we affirm.

I. FACTUAL BACKGROUND

On February 10, 1988, Gary Michael Benn made a 911 call to the Pierce County Sheriff's Department from the home of his half-brother, Jack Dethlefsen, and reported finding his half-brother's body as well as the body of his half-brother's friend, Michael Nelson. Officer Junge of the Pierce County Sheriff's Department arrived at the scene three minutes later and observed the bodies of the two victims on the floor in the living room. Both men had been shot once in the chest and once in the back of the head. He checked them for vital signs and found none. The bodies were still warm and bleeding, suggesting that both men had been killed recently.

There was a bullet hole in the couch in the living room consistent with someone having been shot while on the couch. There were also bloodstains that matched Dethlefsen's blood type on both the couch itself and on a newspaper that was on it. The medical examiner testified that Dethlefsen was shot in the chest while on the couch because only the chest wound would have allowed him to move around and end up on the floor where the police found him.

There was a .45 caliber handgun on the floor between the two bodies and a baseball bat next to Dethlefsen's body. Dethlefsen's head rested next to a gun cabinet and the glass face of the cabinet, which had a shotgun in it, had been broken. Police found a boot print that matched Benn's boot on a piece of broken glass next to Dethlefsen's elbow. There was also blood on one of Benn's boots with spatter patterns consistent with Benn's having shot Nelson in the head while standing next to his body.

Benn was charged with two counts of premeditated murder with the aggravating circumstance that the murders were part of a common scheme or single act, and was given notice of the government's intention to seek the death penalty. The defense conceded at trial that Benn had shot both Dethlefsen and Nelson, but claimed that the shootings were in self-defense after a spontaneous argument between Benn and Dethlefsen. The prosecution, however, contended that Benn had planned the killings primarily in order to cover up his participation with the victims in an arson-insurance-fraud scheme. At trial, the prosecution relied heavily on various inculpatory statements that Benn had allegedly made to Roy Patrick, a "jailhouse informant" who was in Benn's cell block while Benn was awaiting trial, as well as on highly circumstantial evidence relating to the alleged arson.

A. ADDITIONAL EVIDENCE AT TRIAL

On the day of the shootings, Benn had been at Larry Kilen's barbershop before he went to Dethlefsen's house. While at the barbershop, Benn spoke to Dethlefsen on the phone and Kilen heard him say "What the hell is going on? I will be right back — I will be right there. What's the matter? What is that?" Benn told Kilen that Dethlefsen was drunk and wanted him to come over because he had fallen down. Multiple witnesses at trial testified that Dethlefsen was an alcoholic, and his autopsy revealed that he had a blood alcohol content of 0.07 at the time of his death. Similarly, Nelson's autopsy revealed that he had a blood alcohol content of 0.11.

Benn denied that he went to Dethlefsen's house with the intention of harming either Dethlefsen or Nelson. A police search of Benn's car revealed that he had a .22 caliber pistol in the car that he had not taken inside the house with him. Benn did not testify at the trial and much of his version of the events was presented through statements he made to his brother, Monte Benn ("Monte").

Monte testified that Benn had described the following series of events to him: When Benn went into Dethlefsen's house on the day of the shootings, he found a piece of paper on the kitchen counter with Gail Fisk's phone number on it. Fisk was Benn's ex girlfriend with whom he had been trying to reconcile. Benn thought that Dethlefsen and Nelson were harassing Fisk because he had seen Nelson's car at Fisk's house on occasion. Benn had questioned Dethlefsen about Fisk previously but Dethlefsen had denied harassing her. After Benn discovered the note with Fisk's phone number on it, he took the note into the living room and confronted Dethlefsen. In response, Dethlefsen said, "Well Benny, you got me" and reached for the .45 caliber gun that he routinely kept on his living room coffee table. Benn then grabbed the gun and shot Dethlefsen in self-defense. After being shot, Dethlefsen moved toward the gun cabinet. Nelson then got up and threw a beer can at Benn. Benn remembered shooting Nelson, but did not remember much else.

Monte testified that he got the impression that the shooting was in self-defense. He also told the jury that Dethlefsen had a reputation for violence in the community. Other evidence presented at the trial corroborated parts of Benn's story. Experts testified that the path of the bullet that struck Dethlefsen's chest and then entered the back of the couch was consistent with Dethlefsen being in the act of rising from the couch at the time he was first shot. Moreover, Deputy James Jones testified that Dethlefsen probably broke the glass face of the gun cabinet "as he fell ... after being wounded" or while he was "trying to get a weapon." The defense theory was that Benn shot Dethlefsen a second time because Dethlefsen was trying to get another gun. During the investigation, the police also found an empty beer can underneath Nelson's right knee. This was consistent with Benn's claim that Nelson threw a beer can at him while he was standing next to the living room table near where the bodies were found.

Roy Patrick, a "jail house informant" who shared a cell with Benn when Benn was awaiting trial, testified on behalf of the prosecution. According to Patrick's testimony, Benn confessed to him and asked Patrick to help him find someone "on the outside" who would be willing to take the blame for the murders. Patrick testified that Benn drew diagrams of the murder scene and gave him details about the murder to relay to the person he found so that the person's statements would be believable.

The prosecution's theory was that the shootings were part of a common plan or scheme. Patrick's testimony provided critical support for that theory. Specifically, he testified that Benn told him about his involvement in a conspiracy with Dethlefsen and Nelson to perpetrate an insurance fraud. According to Patrick's testimony, Benn, Dethlefsen, and Nelson staged a "burglary" of Benn's trailer and collected the insurance. Then, a few months later, they burned down the trailer and collected insurance again. Both times, however, Benn refused to share the proceeds with Dethlefsen and Nelson. Nelson and Dethlefsen then threatened to disclose the crimes to the police, and Benn killed them to keep them from doing so.

Benn did in fact report a burglary of his trailer on October 12, 1987, but the only evidence of an insurance fraud with respect to that burglary (aside from Patrick's testimony) was the fact that Benn reported that ivory carvings were taken in the burglary and the police recovered some ivory figures from Dethlefsen's bedroom closet after he was killed. After the trial, however, a friend of the family stated that the half-brothers both owned ivory figures from Alaska.

Similarly, there was a fire at Benn's trailer on December 11, 1987, but there was little, if any, evidence, aside from Patrick's testimony, that the fire was intentionally started. There was testimony that Dethlefsen, an electrician, had worked on the furnace in Benn's trailer and that some possessions that Benn normally kept in the trailer were not there on the day of the fire. Additionally, Benn did tell Monte that he was nervous about fire insurance fraud charges being filed against him because he claimed more than he should have after the fire, but he never told Monte that he had started the fire. The prosecution emphasized that Benn sent in a payment for his home insurance on the day of the fire. According to the insurance agent, however, the payment was not late and it was to cover January and February insurance. Benn had already made payments to insure the trailer for December, the month of the fire.

The defense attempted to prevent the arson-insurance-fraud theory from being mentioned at trial by arguing in a motion in limine that there was no evidence of arson. In ruling that the information was admissible, the trial court said "This is probably the key decision in this case." The trial judge went on to state that:

So far as the probative value...