Boyde v. Brown

• Decision Date: 21 April 2005
• Docket Number: No. 02-99008.,02-99008.
• Citation: 404 F.3d 1159
• Parties: Richard BOYDE, Petitioner-Appellant, v. Jill BROWN, Warden of California State Prison at San Quentin,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1159

404 F.3d 1159

Richard BOYDE, Petitioner-Appellant, v. Jill BROWN, Warden of California State Prison at San Quentin,^* Respondent-Appellee.

No. 02-99008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 2004.

Filed April 21, 2005.

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Robert E. Darby, Fulbright & Jaworski L.L.P., Los Angeles, CA, for the petitioner-appellant.

William M. Wood, Supervising Deputy Attorney General, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; William D. Keller, District Judge, Presiding. D.C. No. CV-91-02522-WDK.

Before FARRIS, KOZINSKI and SILVERMAN, Circuit Judges.

KOZINSKI, Circuit Judge.

Richard Boyde was convicted in California state court of robbery, kidnaping for robbery and murder, and sentenced to death. He petitioned the district court for a writ of habeas corpus, challenging his conviction and sentence. The district court denied his petition, and Boyde now appeals.

Facts¹

In early January 1981, Boyde robbed David Baker, an attendant at a Union 76 gas station in Riverside, California. After stealing a small amount of cash and Baker's watch, Boyde forced Baker into Baker's car and ordered him to drive around for several hours. When the car stalled out, Boyde asked Baker to give the police a false description of him and fled on foot.

Ten days later, Boyde robbed a 7-Eleven gas station in Riverside, this time along with his nephew, Carl Franklin Ellison. One of the two men went into the station with a gun and took some money from a cash register, as well as several hats and hatbands.² They kidnaped Dickie Gibson the store clerk, and drove him to a nearby orange grove. There, Boyde shot Gibson twice in the head, killing him.

A jury convicted Boyde of robbery and kidnaping for robbery in connection with the Baker incident, and robbery, kidnaping for robbery and first degree murder in the Gibson incident.³ After hearing additional evidence, it sentenced him to death.

Boyde exhausted his direct appeals and state habeas proceedings. He then petitioned for a writ of habeas corpus in federal court, raising a number of claims that his trial and sentencing violated the Constitution.⁴ The district court denied his petition, and Boyde appeals.

Brady Claim

One of the key issues at trial was whether Boyde, rather than Ellison, shot Gibson. Although there was some physical and circumstantial evidence on this score, the big break for the prosecution came when Ellison waived his right to trial by jury, took the stand in his own defense and testified that Boyde had pulled the trigger. According to Boyde, though, the prosecution did more than sit idly by and reap the benefits of Ellison's decision to testify. Boyde claims that the prosecutor and Ellison's lawyer made a secret deal, pursuant to which the prosecutor agreed not to seek the death penalty against Ellison, and Ellison agreed to forgo a jury, take the stand and finger Boyde as the shooter.

Had such a deal been made and disclosed, Boyde's counsel could have used it to impeach Ellison's credibility. But the prosecutor said nothing about any promise of leniency to Ellison. Boyde argues that this failure to disclose violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Giglio v. United States, 405 U.S. 150, 153-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (finding a due process violation where the prosecution did not disclose that a co-conspirator who testified against the defendant at trial had been promised that he "would not be prosecuted if he cooperated with the Government"). The key question is whether a secret agreement existed.

After an evidentiary hearing, the district court found — as the California Supreme Court had before, see People v. Boyde, 46 Cal.3d 212, 250 Cal.Rptr. 83, 758 P.2d 25, 38 (1988) — that "[t]here was no deal." The district judge emphasized that "it became evident upon listening to the testimony of Carl Ellison, the prosecutor ..., Ellison's defense counsel ..., and [Boyde's counsel], that there was in fact no `secret deal,' and no undisclosed agreement or arrangement of any kind between the prosecutor and Ellison." We can set aside this finding only if it is clearly erroneous. See Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.1998).

Here, there was evidence supporting the district court's finding: Both the prosecutor and Ellison's counsel testified before the district court, and both protested vigorously that they had reached no agreement. This testimony, which was expressly credited by the district court, provides a sufficient basis for a finding that no agreement existed.

Boyde nevertheless points out that the prosecutor and Ellison's counsel acted with suspicious synchronicity, which he believes betrays a secret agreement. When Ellison moved to waive a jury trial, the prosecutor joined in the waiver. He explained:

[T]he People would also join in that waiver and this is not... a slow plea by any stretch of the imagination, [⁵] and there are no concessions being made by either side, and it will be anticipated a fully contested trial down the line on the issue of guilt. As the Court well knows, ... there will be no evidence presented in aggravation other than the facts of the crime and the special circumstances.

While ... I'm not going to come out in court and concede something at this point in time — it suggests to me that at some point in time the law is going to require the Court — will not put the Court in a position to come back with a finding of death in this case....

I think it is not part of the negotiations for the jury waiver, or anything else. It is just an understanding that there will be no further evidence of aggravation, and that as I interpret the factors ... the Court will be required as a matter of law, to come back if, in fact, special circumstances are found,... with life without parole....

Ellison's counsel then stated, "Mr. Ellison will testify."

Boyde finds it suspicious that the prosecutor signaled to the district court that he would not pursue the death penalty against Ellison shortly after Ellison waived his jury trial right and just before Ellison indicated he would testify. In addition, he argues that the words "negotiations" and "understanding" suggest the prosecutor did so as a result of an agreement with Ellison.

While the prosecutor's prompt assent to Ellison's jury waiver, as well as some of the statements he made to the trial court, may have been sufficient to support a finding that an agreement existed, neither the words nor the circumstances compel such a finding in the teeth of contrary testimony from both the prosecutor and Ellison's attorney. The prosecutor's words and actions can be explained by circumstances other than the existence of an agreement.

As to the prosecutor's joining in the jury waiver, the record contains evidence that the prosecution had independent reasons for wanting to try Ellison's case to the court. Trying Boyde and Ellison to separate juries would have significantly complicated the prosecutor's task by requiring him to try a two-jury case, something he had never done before. This would cause a number of complications, ranging from the mundane (how do you accommodate two juries in the courtroom?) to the critical (how do you coherently present the evidence admissible against only one defendant, particularly if that would require dividing a single witness's testimony?). By joining in Ellison's jury trial waiver, the prosecutor avoided these issues.

There is also a plausible explanation for the prosecutor's suggestion that he would not seek the death penalty for Ellison: It had been the prosecution's theory all along that Boyde was the major culprit in Gibson's kidnaping and murder, and Ellison was the less-culpable follower. Thus, the prosecution had filed a statement of aggravation in Boyde's case, as it was required to do as a prerequisite for presenting aggravating facts in support of the death penalty, but had filed no such statement as to Ellison. By advising the court that the death penalty would probably not be appropriate for Ellison, the prosecutor simply reassured the trial judge that, by granting the uncontested motion for a bench trial, the judge would not put himself in the position of making the life-and-death decision as to Ellison.

For their part, Ellison and his counsel had perfectly legitimate reasons — independent of the prosecution's preferences — for waiving a jury trial and having Ellison testify. Because Ellison was being tried with Boyde, it was likely that Ellison's jury would hear testimony that incriminated only Boyde, but could result in prejudice against Ellison. Ellison's counsel was also concerned that the jury might be moved by passion about a crime that was well-publicized in the community. As Ellison's counsel put it, he felt confident that the trial judge would "look at the facts and not the emotion."

It is clear from the record that Ellison's counsel and the prosecutor had discussed Ellison's decision to waive a jury. Quite likely, during the course of these discussions, the lawyers would have realized that they had certain common interests: The prosecutor wanted to make the best possible case against Boyde as the triggerman, while Ellison's counsel had every reason to shift the major blame onto Boyde and make his own client out to be the less culpable actor. But the fact that they subsequently acted consistent with those interests does not necessarily mean they did so pursuant to an agreement that the prosecutor would not seek the death penalty against Ellison if he testified against Boyde.

The district judge, who heard live testimony from Ellison's counsel and the prosecutor, emphatically found that no secret deal existed; for the reasons explained, this finding is not clearly erroneous. Because there was no agreement to...