Boyer v. Chappell

• Decision Date: 16 July 2015
• Docket Number: No. 13–99006.,13–99006.
• Citation: 793 F.3d 1092
• Parties: Richard Delmer BOYER, Petitioner–Appellant, v. Kevin CHAPPELL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

793 F.3d 1092

Richard Delmer BOYER, Petitioner–Appellant

v.Kevin CHAPPELL, Warden, Respondent–Appellee.

No. 13–99006.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2015.

Filed July 16, 2015.

Lise S. Jacobson, Deputy Attorney General for the State of California, San Diego, CA, argued the cause for the appellee the State of California.Kamala D. Harris, Attorney General of California, filed the briefs for the appellee. With her on the briefs were Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski, Deputy Attorney General, San Diego, CA.

Joel Levine, Costa Mesa, CA, and R. Clayton Seaman, Prescott, AZ, argued the cause on behalf of the petitioner-appellant Richard Delmer Boyer and filed briefs.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:06–cv–07584–GAF.

Before: DIARMUID F. O'SCANNLAIN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the California Supreme Court violated the United States Constitution in affirming a habeas petitioner's two first degree murder convictions and his death sentence.

I

A California state court jury convicted Richard Delmer Boyer of the double murder of an elderly couple, Francis and Aileen Harbitz. After a separate penalty proceeding, the jury returned a sentence of death.¹

A

At the guilt phase of trial, the prosecution showed that the Harbitzes had been stabbed to death in their Fullerton, California home on December 7, 1982. When their son William Harbitz entered the home five days later, he discovered his father's body sitting upright against a bloody wall in the hallway and his mother's body covered in blood on the living room floor. Francis had sustained approximately 24 stab wounds

to the neck, chest, and back, and bled to death because of knife wounds to the heart and aorta. Aileen had suffered 19 stab wounds and likewise bled to death as a result of her injuries. The Harbitzes' residence did not show signs of forced entry nor had it been ransacked, and there was approximately $400 worth of cash in the home when the bodies were discovered.

After discovering his parents' bodies, William mentioned Boyer's name to police. William had introduced Boyer to his parents, and Boyer had done odd jobs for the Harbitzes and borrowed money from them on occasion. William had come to know Boyer because they had previously lived in the same apartment complex.

When police subsequently searched the residence that Boyer maintained with his girlfriend, Cynthia Cornwell, officers found a pair of Levi's jeans stained with blood consistent with Boyer's and blood consistent with that of both Francis and Aileen Harbitz. Officers also recovered a buck knife, capable of inflicting the Harbitzes' wounds

and stained with human blood, as well as the charred remains of a jacket burned in a hibachi grill.

John Kennedy, a key prosecution witness, testified under a grant of immunity that he had arrived at Boyer's residence between 4:30 and 5:00 p.m. on the afternoon of December 7, and that Boyer asked for a ride to his father's house to pick up some money. Along the way, Kennedy and Boyer stopped to buy cocaine from a dealer Kennedy knew, using $25 Kennedy had borrowed from his brother. They then proceeded to the home of Boyer's father, where Boyer spent approximately 15 minutes inside.

Kennedy and Boyer then drove to an apartment complex and attempted to buy marijuana, but failed. Boyer then directed Kennedy to another apartment complex to find “Bill.” The pair failed to locate Bill, and Boyer speculated that Bill had moved back in with his parents. Boyer then directed Kennedy to “some dope dealer's house,” which Boyer later revealed to be “Bill's parents' house”—that is, the Harbitzes' residence. Bill, of course, was William Harbitz.

Kennedy testified that Boyer entered the Harbitzes' home acting normally and remained inside for about 45 minutes. He returned, again acting normally, with a towel in hand. When a police patrol vehicle approached, Boyer began wiping the vehicle's rear window with the towel and shortly thereafter admonished Kennedy to “take off calmly, not to attract any attention.”

As they drove away, Kennedy observed Boyer apply the towel to his left knee. Boyer told Kennedy that he had to hurt someone because they didn't “have no dope” and indicated that he had been stabbed himself. Soon after, Kennedy saw Boyer going through two wallets. Boyer threw one of the wallets out a window near an off ramp and put the other down a gutter. When the pair returned to Boyer's residence, Kennedy observed a stab wound

to Boyer's knee. He also saw that Boyer was wearing his buck knife, and, before he left the residence, noted that there was blood on the open knife blade. During the evening, Boyer told Kennedy not to tell anyone what had happened that night.

Cynthia Cornwell likewise testified for the prosecution under a grant of immunity and reported that Boyer and Kennedy had left the residence Boyer and Cornwell shared so that Boyer could attempt to borrow money from his parents. He had previously tried to borrow $30 from Cornwell, which she knew to be the price of cocaine, but she had no money to give him.

Cornwell testified that, later that evening, when Boyer and Kennedy returned, Boyer's knee was bleeding and he was limping. Boyer told Cornwell that he had been injured in a confrontation with a loan shark. That same day, before police officers came to their residence, Boyer asked Cornwell whether she would wait for him if something happened. When Cornwell asked what was wrong, Boyer said “something about a murder” and told Cornwell “you are going to hate me.” Cornwell admitted to burning Boyer's jacket on a hibachi grill.

For the defense, Dr. Ernest Klatte testified as an expert witness after interviewing Boyer four times for a total of eight and three-quarter hours. In addition to those interviews, Dr. Klatte reviewed reports prepared by the public defender and the Fullerton police, a forensic report prepared by the Orange County Sheriff's crime lab, and Boyer's medical records, which included indications that Boyer had suffered two serious traffic incidents years earlier.

Dr. Klatte related Boyer's version of the events. According to him, Boyer stated that he had been injecting cocaine and drinking heavily for some time. On the day of the murders, he drank beer in the morning and half a pint of whiskey in the afternoon, smoked a PCP cigarette, and shared a quarter gram of cocaine with Kennedy. He went with Kennedy to his parents' house in an attempt to obtain money from his mother, but failed because his father was home. He then attempted to find William Harbitz, but, again, failed. The two then went to Francis and Aileen Harbitz's home to find out how to contact William. During the trip, he began to have a headache and feel the effects of the PCP. Once they arrived at the Harbitzes' residence, Aileen Harbitz invited him into her home, and subsequently suggested he go to the back bedroom to talk to Francis. As he was leaving Francis's room, Boyer noticed a billfold and then felt very strange. Boyer felt that he was part of the horror movie Halloween II and that events in the house were changing speeds and items were becoming distorted.

Boyer's story changed significantly over the course of his interviews with Dr. Klatte. In his early interviews, conducted in 1982 and 1983, Boyer stated he had no recollection of the knife or the stabbing, and indeed had no recollection at all until he was outside in Kennedy's car. In a 1990 interview, however, Boyer said that he was “tripping” and hallucinated a man coming at him with a knife. Dr. Klatte testified that Boyer recalled having two wallets when he left the Harbitzes' residence, and that he admitted to discarding them.

Dr. Klatte opined, assuming Boyer told the truth about the drugs he ingested, that Boyer might have been impulsive and explosive on the night of the murders, and that he might have hallucinated. He also acknowledged Boyer had an antisocial personality and might have lied about the events in question. Dr. Klatte testified there was a significant possibility Boyer was malingering, and he was especially suspicious of the hallucination claim because Boyer had not mentioned it to him until 1990.

Lawrence Plon, a pharmacist, also testified for the defense that cocaine and PCP can produce excitement or catatonic withdrawal, aggression, paranoia, hallucinations, and delusions.

In due course, the jury returned guilty verdicts on the two murder charges.

B

At the penalty phase of the trial, the parties stipulated that Boyer pled guilty to committing a misdemeanor assault in September 1980. The prosecution also presented evidence that Boyer participated in the armed robbery of a Payless Shoe Source store cashier in 1982, during which Boyer had personally pulled a handgun on a store clerk, forcing her to open the cash register and store safe.

In addition, the prosecution sought to prove that Boyer murdered 75 year old Houston Compton in August 1980. William Harbitz testified that in August, 1980, Boyer came to his apartment door intoxicated and covered in blood and subsequently explained he had been in a knife fight. The prosecution's case relied heavily on the testimony of Linda Weissinger, who worked at a McDonald's restaurant in Whittier, California. She recalled a man driving a car that matched Compton's early 1960's Ford Fairlane—which was later found abandoned with a McDonald's restaurant bag and receipt inside—going through the McDonald's drive-through during the closing rush. Weissinger recalled the man had blood on his shirt and leaned toward the passenger side of the window as if he did not want to be seen. Despite only briefly seeing the man, Weissinger positively identified Boyer in a six photograph array in 1983 and testified that she was “sure” the man she...