Evans v. Lewis
| Decision Date | 22 August 1988 |
| Docket Number | No. 87-2195,87-2195 |
| Parties | Larry Eugene EVANS, Petitioner-Appellant, v. Samuel LEWIS; Lloyd Bramlett, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William H. McLean, Stewart & McLean, Ltd., Phoenix, Ariz., for petitioner-appellant.
R. Wayne Ford, Asst. Atty. Gen. for the State of Ariz., Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before CHOY, SNEED and HUG, Circuit Judges.
Larry Eugene Evans ("Evans"), an Arizona state prisoner convicted of first degree murder and armed robbery and sentenced to death, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Evans alleges numerous trial and sentencing errors. We affirm his conviction, but reverse the sentence of death, and remand for resentencing.
On August 27, 1976, an Arizona jury found Evans guilty of first degree murder and armed robbery in connection with the robbery of a Phoenix bar and the shooting of the bartender. The trial judge subsequently sentenced Evans to death for the murder. The judge found one aggravating factor, a previous California conviction for attempted first degree robbery, and no factors mitigating against the imposition of the death penalty. 1 Evans appealed his conviction and sentence to the Arizona Supreme Court, which affirmed the conviction but remanded for resentencing in order to allow Evans to present any evidence of mitigating circumstances. See State v. Evans, 120 Ariz. 158, 584 P.2d 1149 (1978). 2
Upon resentencing, the judge found no mitigating circumstances and again sentenced Evans to death. On appeal, the Arizona Supreme Court affirmed this decision. See State v. Evans, 124 Ariz. 526, 606 P.2d 16 (1980). The United States Supreme Court denied certiorari. See Evans v. State, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 119 (1980).
On April 30, 1980, Evans filed a petition for post-conviction relief in state court. When both the trial court and state supreme court denied this petition, he applied in federal district court for habeas relief. The court dismissed his petition on the ground that Evans had failed to exhaust available state remedies.
On May 20, 1983, Evans filed a second state petition for post-conviction relief. In reviewing the trial court's denial of his petition, the Arizona Supreme Court remanded for a hearing to ascertain the basis for the finding of the aggravating factor. After a hearing, the trial court concluded that sufficient proof existed to establish the existence of the aggravating factor. The state supreme court affirmed. See State v. Evans, 147 Ariz. 57, 708 P.2d 738 (1985).
On April 11, 1986, Evans again filed a petition in federal district court for habeas relief. The district court denied his petition. Evans timely appeals from that decision.
We review de novo a district court's determinations with respect to a petition for writ of habeas corpus. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.1988) (en banc). "Furthermore, while the historical factual findings of a state court are presumed correct and will not be set aside unless lacking fair support in the record, we may give different legal weight to such facts." Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988) (citations omitted).
Evans raises several issues in this petition, three of which concern his conviction. We address these allegations of trial errors before turning to his sentencing objections.
Evans claims that the trial court's restriction of his cross-examination of the prosecution's key witness violated his sixth amendment right to confront witnesses against him. While Evans was in jail awaiting trial, Tommy Ray Hammock ("Hammock"), Evans' cellmate, told police that Evans had admitted to him his guilt in the matter and had provided details. At trial, Hammock testified against Evans, providing the only testimony directly implicating Evans in the murder.
The sixth amendment confrontation clause requires "a certain threshold level of cross-examination." Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir.1980). The extent of cross-examination must be sufficient to allow the jury to evaluate the witness's "general credibility," Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981), and, in particular, to "appraise the biases and motivations of the witness," United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985) (quoting United States v. Bleckner, 601 F.2d 382, 385 (9th Cir.1979)). Yet, a defendant does not have a right to "cross-examination that is effective in whatever way, and to whatever extent, [he] might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985). The trial court may thus exclude cross-examination "that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).
Furthermore, "the defendant's right to attack the witness's general credibility enjoys less protection than his right to develop the witness's bias." Reiger v. Christensen, 789 F.2d 1425, 1433 (9th Cir.1986). Yet, where the prosecution's case depends upon the credibility of its key witness, "[d]efense counsel ... must be given a maximum opportunity to test the credibility of the witness." United States v. Brady, 561 F.2d 1319, 1320 (9th Cir.1977). See United States v. Uramoto, 638 F.2d 84, 86 (9th Cir.1980).
In the present case, the jury learned (1) that Hammock met Evans while both were in jail; (2) that Hammock and a friend had previously escaped from Adobe Mountain School in a stolen car that contained guns; (3) that police had subsequently chased these two and that Hammock's friend had shot and killed a policeman; (4) that Hammock could have been charged with felony-murder but that he was charged only with a misdemeanor and received probation as a result of his testimony against Evans; (5) that Hammock had plans for burglarizing homes when arrested; (6) that Hammock had previously relayed to police incriminating statements made to him by an inmate charged with murder; and (7) that Hammock feared prison because he had previously "burned" certain inmates on deals.
Evans contends that the failure to allow questioning as to the kinds of deals Hammock made that "burned" certain inmates was unconstitutional. Evans claims that this interrogation would have revealed that Hammock had previously testified against others in exchange for criminal immunity.
As Evans acknowledges, such evidence referred to Hammock's general credibility rather than his bias or motivation. This evidence may have indeed further impugned Hammock's credibility, but it is cumulative given that Hammock had already testified that he had a special incentive to avoid prison and that his testimony would allow him to realize this goal. The nondisclosure of the precise nature of Hammock's deals did not prevent the jury from adequately evaluating Hammock's credibility.
During voir dire, the court on its own motion excused a prospective juror who indicated that he believed the taking of a human life could not be justified under any circumstances. Evans asserts that the court's action violated his sixth amendment right to an impartial jury selected from a cross-section of the community. 3
This claim asserts a violation of two distinct rights: the right to a jury selected from a representative cross-section of the community, see Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975), and the right to an impartial jury, see Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975).
The Supreme Court has held that "the fair cross-section requirement applies only to venires, not to petit juries." Buchanan v. Kentucky, --- U.S. ----, 107 S.Ct. 2906, 2913, 97 L.Ed.2d 336 (1987); see Lockhart v. McCree, 476 U.S. 162, 173-74, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986). In the present case, the juror's removal was part of the process of selecting the petit jury and did not involve the composition of the venire. Therefore, the fair cross-section right did not attach. See Harris v. Pulley, 852 F.2d 1546, 1563 (9th Cir. 1988).
A state violates the impartial jury requirement if it attempts to "execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment." Adams v. Texas, 448 U.S. 38, 43, 100 S.Ct. 2521, 2525, 65 L.Ed.2d 581 (1980) ( Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).
In McCree, the Court rejected the argument that Adams and Witherspoon "have broad applicability outside the special context of capital sentencing." 476 U.S. at 183, 106 S.Ct. at 1770. The Court in McCree denied a claim that the systematic exclusion of jurors who stated that they could not under any circumstances vote for the imposition of the death penalty violated the impartial jury requirement, for the jury's role in this death penalty case concerned only the finding of facts and determination of guilt or innocence. Id. The Court indicated that outside the special context of criminal sentencing, the right to an "impartial jury consists of nothing more than 'jurors who will conscientiously apply the law and find the facts.' " Id. at 178, 106 S.Ct. at 1767 (quoting Wainright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985)) (emphasis omitted).
In the present case, the jury played no role in Evans' sentencing. Its sole function was to determine Evans' guilt or innocence. Thus, the juror's removal, even if for insufficient cause, did not violate...
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