Evanchyk v. Stewart, 01-16744.

• Decision Date: 21 August 2003
• Docket Number: No. 01-16744.,No. 02-16942.,01-16744.,02-16942.
• Citation: 340 F.3d 933
• Parties: Michael John EVANCHYK, Jr., Petitioner-Appellee-Cross-Appellant, v. Terry STEWART; Janet Napolitano, Respondents-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

340 F.3d 933

Michael John EVANCHYK, Jr., Petitioner-Appellee-Cross-Appellant, v. Terry STEWART; Janet Napolitano, Respondents-Appellants-Cross-Appellees.

No. 01-16744.

No. 02-16942.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2003 — San Francisco, California.

Filed August 21, 2003.

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Randall M. Howe (argued), Chief Counsel, Criminal Appeals Section, and Diane M. Ramsey (on the brief), Assistant Attorney General, Arizona Attorney General's Office, Phoenix, Arizona, for the respondents-appellants/cross-appellees.

Brian X. Metcalf (argued), and Frank P. Leto (on the brief), Assistant Public Defenders, Pima County Public Defender, Tucson, Arizona, for petitioner-appellee/cross-appellant Michael John Evanchyk, pro se.

Appeals from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding. D.C. No. CV-00-00009-WDB.

Before: SUSAN P. GRABER, KIM McLANE WARDLAW, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

Under Arizona law, a conviction for first-degree murder can be based on either or both of two theories: premeditated murder (an intentional, planned killing) or felony murder (a killing that results from the intentional commission by defendant of another felony, but which does not necessarily involve an intent to kill). Michael Evanchyk was tried in Arizona state court, together with other defendants, for multiple crimes in connection with events that resulted in a death. He was acquitted by a jury of first-degree murder and of burglary, but was convicted of second-degree murder and of conspiracy to commit first-degree murder. He petitioned the district court for habeas corpus relief under 28 U.S.C. § 2254, challenging only the conviction for conspiracy to commit first-degree murder. The district court granted his petition conditionally, subject to the State of Arizona's ability to retry him on that charge. The district court held that under the instructions given to the jury, Evanchyk could have been convicted for, in effect, conspiracy to commit felony murder, which is not a crime under Arizona law. The State appeals, contending that there was no instructional error and that any error was harmless, in any event. Evanchyk cross-appeals, arguing that the district court's conditional grant, permitting a re-trial, was erroneous on double jeopardy or collateral estoppel grounds, and also that the district court erroneously denied his ineffective assistance of counsel claim.

We affirm. In response to certified questions from the district court, the Arizona Supreme Court made clear that, under Arizona law, intent to kill is an essential element of the offense of conspiracy to commit first-degree murder. The instructions given in this case permitted the jury to convict Evanchyk of that offense without requiring a finding of that essential element, an intent to kill. This constitutes a violation of Evanchyk's federal constitutional right to due process. The circumstances do not permit us to find that the error in this case was harmless, so habeas relief is appropriate. At the same time, because there was substantial evidence to support the State's allegation of an agreement to kill, with the required intent, it is appropriate to permit the State to re-try Evanchyk on the conspiracy charge, if it so decides.

I. BACKGROUND

The district court adopted the description of the crime set forth in the Arizona Court of Appeals' decision affirming Evanchyk's conviction on direct appeal:

[Evanchyk] was assaulted by another resident of his apartment complex, Dean Harris. Several days later, at about 1:30 a.m., [Evanchyk] banged on the window of Harris' apartment and said, "[C]ome out, we want to kill you." Throughout the rest of the day, [Evanchyk] and his friends, Dennis Vaillancourt, Carlos Ybarra, and Jack Olson made several threats to Harris and his girlfriend, Sonia Evans, and repeatedly said they wanted to "kick Dean's ass" for what he did to [Evanchyk].

That evening, Evans answered the door of the apartment she shared with Harris and was accosted by Vaillancourt's girlfriend. Olson came in right behind her followed by Vaillancourt, Ybarra, and [Evanchyk], and knocked Harris down. One of them said, "we are here to hurt you." Harris ran into the bedroom and Olson, Ybarra, and [Evanchyk] followed, breaking the door down. After Vaillancourt separated the women, Evans went toward the bedroom and saw Olson run out. In the bedroom Evans saw Ybarra holding a baseball bat and [Evanchyk] putting his left arm around Harris and making a "jabbing motion" with his right arm. She immediately went to Harris and found blood on his chest. Harris died of multiple blunt and sharp force injuries, primarily a stab wound to the heart.

State v. Evanchyk, No. 2 CA-CR-94-0533, mem. dec., at 2-3 (1996) ("Evanchyk I").

The State charged Evanchyk with first-degree murder, first-degree burglary, and conspiracy to commit first-degree murder. He was tried together with Ybarra, Olson and another co-defendant in Pima County Superior Court. At the close of trial, the judge instructed the jury on first-degree murder, second-degree murder, manslaughter, burglary, and conspiracy to commit first-degree murder.

The instruction regarding the elements of conspiracy to commit first-degree murder read as follows:

The crime of conspiracy to commit first degree murder requires proof of the following things:

1. That the defendant agreed with one or more persons that one of them or another person would engage in certain conduct; and

2. That the defendant intended to promote or assist the commission of such conduct; and

3. That the intended conduct would constitute a crime [whether known or unknown by defendant to be a crime].

The crime of first-degree murder was defined as either of the following two alternatives: (1) when "defendant intended or knew that he would cause the death of another ... with pre-meditation" or (2) when someone "commits or attempts to commit burglary and in the course of, and in furtherance of such offense, or imediate [sic] flight from such offense, such person, or another person, causes the death of any person. This type of murder requires no mental state other than that which required for [sic] the commission of the offense of burglary."

The instructions given to the jury by the trial judge explicitly reiterated that a conviction for first-degree murder could be based on a felony murder theory that did not require the jury to find an intent to kill, only an intent to commit burglary:

A person commits first-degree murder if such person, acting alone or with one or more other persons, commits or attempts to commit first-degree burglary, and in the course and in furtherance of such offense, or immediate flight from such offense, such person or another person causes the death of any person. This type of first degree murder requires no specific mental state other than that which is required for the commission of the offense of first degree burglary.

As noted above, the jury found Evanchyk not guilty of first-degree burglary and first-degree murder, but guilty of second-degree murder and conspiracy to commit first-degree murder. He was sentenced to concurrent prison terms of 25 years for conspiracy to commit first-degree murder and 15 years for second-degree murder. The same jury reached somewhat different verdicts for co-defendants Olson and Ybarra. They were both found guilty of first-degree murder, burglary, and conspiracy to commit first-degree murder. According to the verdict forms, which required the jurors to identify the basis for a first-degree murder conviction as either or both of felony murder and premeditated murder, by checking lines on a typed form, 11 jurors based their conviction for Olson on a felony murder theory alone and 1 juror found Olson guilty of both premeditated and felony murder. All 12 based Ybarra's conviction on felony murder.¹

On direct review, the Arizona Court of Appeals affirmed Evanchyk's conviction, concluding that there was substantial evidence to support the guilty verdict on the conspiracy charge. The Arizona Supreme Court denied review.

Evanchyk then filed for state collateral relief, arguing that he was convicted of a conspiracy to commit first-degree murder based on a legally invalid theory, i.e., conspiracy to commit felony murder. He argued further that he had been denied effective assistance of trial and appellate counsel because his lawyers had failed to challenge the conspiracy instruction on this basis. The Arizona Court of Appeals denied relief, holding that "it need not answer the theoretical question whether conspiracy to commit first degree murder may be based on felony murder because on [direct] appeal we concluded there was substantial evidence of an agreement among the co-defendants to murder the victim." State v. Evanchyk ("Evanchyk II"), No. 2 CA-CR-97-0505, mem. dec., at 2, ¶ 3 (1998). In a petition for review to the Arizona Supreme Court, Evanchyk argued that the Court of Appeals utilized the wrong standard of review on the post-conviction relief petition and that it substituted its judgment for that of the jury's. The Arizona Supreme Court denied Evanchyk's petition.

Evanchyk then filed a petition for federal habeas relief in the district court. The district court initially held that habeas relief would be justified if in fact Evanchyk might have been convicted for activity that did not constitute a crime under Arizona law. The district court noted that:

[T]he jury was presented with two possible legal theories on which it could convict [Evanchyk] of conspiracy to commit first-degree murder. As instructed, the jury could have convicted him of conspiracy to commit first degree premeditated murder or it could have convicted him on conspiracy to commit first degree felony murder.

Because Arizona law was not clear on whether...