Gerlaugh v. Stewart, No. 95-99018

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTROTT; REINHARDT
Citation129 F.3d 1027
Parties97 Cal. Daily Op. Serv. 8451, 97 Daily Journal D.A.R. 13,649 Darrick Leonard GERLAUGH, Petitioner-Appellant, v. Terry STEWART, Director of Arizona Department of Corrections, Respondent-Appellee.
Docket NumberNo. 95-99018
Decision Date04 November 1997

Page 1027

129 F.3d 1027
97 Cal. Daily Op. Serv. 8451, 97 Daily Journal
D.A.R. 13,649
Darrick Leonard GERLAUGH, Petitioner-Appellant,
Terry STEWART, Director of Arizona Department of
Corrections, Respondent-Appellee.
No. 95-99018.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 23, 1997.
Decided Nov. 4, 1997.

Page 1029

Martin Lieberman, Tonya McMath, Phoenix, Arizona, for petitioner-appellant.

Paul McMurdie, Deputy Attorney General, Crane McClennen, Assistant Attorney General, Phoenix, Arizona, for respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CV-85-01647-PHX-RGS.

Before: REINHARDT, THOMPSON and TROTT, Circuit Judges.

Opinion by Judge TROTT; Partial Concurrence and Partial Dissent by Judge REINHARDT.

Page 1030

TROTT, Circuit Judge:

Scott Schwartz was a young man who walked with the aid of a leg brace and crutches. Shortly before midnight on January 24, 1980, he picked up hitchhikers Darrick Gerlaugh, Joseph Encinas, and James Matthew Leisure. What Mr. Schwartz did not know when he accommodated the group's request for a ride was that they had previously agreed to rob whomever picked them up.

As they rode together in Mr. Schwartz's car, petitioner Gerlaugh, who was already on probation for robbery, suddenly pointed a firearm at his host and forced him to drive to a deserted area near Mesa, Arizona. We borrow from the third opinion of the Arizona Supreme Court to relate what petitioner and his confederates then did to rob Mr. Schwartz not only of $37.00, but also of his life:

There, the three men forced the victim out of his car. Petitioner pointed the gun at Schwartz and demanded money. Schwartz grabbed the gun from petitioner. While attempting to escape, the victim pointed the gun at Leisure and pulled the trigger. The gun did not fire. "You fucked up" petitioner exclaimed, "There's no bullets in the gun." The three men knocked Schwartz to the ground, where they beat and kicked him for ten to fifteen minutes. Petitioner then announced that they would have to kill Schwartz to prevent him from identifying them. Petitioner ordered Encinas and Leisure to hold Schwartz on the road so he could run the victim over with the car. The victim succeeded in dodging the car several times by diving into an adjoining canal. Petitioner finally ran over Schwartz with the victim's Lincoln Continental and felt the impact of the victim's body with the car. Petitioner ran over the victim two more times and struck the victim's head with the car bumper at least one time. At one point, petitioner positioned the car's left rear wheel on top of Schwartz and floored the accelerator. Although badly hurt, the victim was still alive and was writhing in pain on the roadside. He began to plead with his assailants to tell him the reason for their attack. Petitioner took a screwdriver from the rear of the car and stabbed the victim in the head, neck and shoulders at least twenty times. Leisure also stabbed the victim ten to twenty times.

A pathologist testified that these various assaults caused several injuries, any of which would have been fatal. The victim suffered numerous fractures, puncture wounds and internal injuries from his head to his midsection. His entire body was covered with bruises and abrasions. The three men dragged Schwartz's body off the road to an adjoining field and covered it with alfalfa. Petitioner kept all of the money taken from the victim.

The three men returned to the road and drove away in Schwartz's car. When the car broke down, they resumed hitchhiking. They were picked up by Harry Roche in his pickup truck at about 2:00 a.m. Petitioner leveled the gun at Roche and forced him to make an apparently random series of turns. Finally, petitioner ordered Roche to pull off to the side of the road. Roche at first refused and complained that the roadside was too muddy at that particular point to stop. When petitioner pointed the gun at his head, however, Roche stopped the truck. Roche quickly put the truck in gear and sped away. Petitioner later admitted that he intended to rob Roche.

State v. Gerlaugh, 144 Ariz. 449, 454, 698 P.2d 694, 699 (1985).

The police interrogated petitioner Gerlaugh after his arrest, and he confessed to his participation in these crimes. When asked how he felt after he killed Mr. Schwartz, his chilling answer was, "How do you feel when you kill game?" Id. He added that he did not feel bad at all about killing the victim.

In a joint trial with Encinas, a jury convicted Gerlaugh of armed robbery, kidnapping, and first degree murder. 1 In addition to receiving sentences of twenty-one years on

Page 1031

the armed robbery and kidnapping offenses to run consecutively with a sentence of thirty-five years to life for violation of his robbery probation, Gerlaugh was sentenced by the trial judge to death for the murder.

Petitioner Gerlaugh's case comes to us on appeal from a denial in the district court of his petition for habeas corpus. His presentation to the district court contained fifty claims, but here he advances only ten. We have examined these claims and the voluminous record in this case, and we find them to be without merit. 2 Accordingly, we affirm the district court.


Guilt-Phase Claims

Gerlaugh advances three claims related to the guilt phase of his trial. The district court examined each in detail and concluded that they lack merit. We agree. Accordingly, we limit our discussion of them to a brief explanation of why they fail in the context of federal collateral review.


Gerlaugh claims that the state trial court committed "fundamental error by refusing to instruct on lesser included offenses reasonably supported by the evidence," namely (1) second degree murder, and (2) theft. His theory of defense, which was presented to the jury and covered adequately by an instruction, was that his use of intoxicants negated the specific intents required for the crimes with which he was charged. As legal support for his argument, he refers us to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Vickers v. Ricketts, 798 F.2d 369 (9th Cir.1986), which hold generally that in a capital case, a court must instruct on every lesser included offense for which there is in the evidence a substantial factual basis. See also Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982) ("[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction."); Spaziano v. Florida, 468 U.S. 447, 456-57, 104 S.Ct. 3154, 3160-61, 82 L.Ed.2d 340 (1984) (holding that court need not give lesser included offense instruction where statute of limitations had run on those offenses).

We note first that "[u]nder Arizona law ... there is no lesser included homicide offense of the crime of felony murder since the mens rea necessary to supply the premeditation element of first degree murder is supplied by the specific intent required for the felony." State v. Arias, 131 Ariz. 441, 443-44, 641 P.2d 1285, 1287-88 (1982). But more fundamentally, even if we were to assume that such instructions as requested by the defendant should have been given to the jury, we can discern no "substantial or injurious effect or influence" from the failure to do so. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993). Notwithstanding his use of intoxicants, the evidence of Gerlaugh's actual intoxication was extremely weak, and the evidence of his intent to kill, to rob, and to kidnap was overwhelming-especially that coming from his own detailed confession. In it, Gerlaugh acknowledged to Detective Weiss that (1) his intent in hitchhiking was to commit robbery; (2) he consciously made a decision "to kill Mr. Schwartz so as not to be identified by him for the robbery;" (3) his intent in causing the left rear wheel to spin on Mr. Schwartz's body was to kill him; and (4) when the tire strategy failed, "[h]e exited the car to go over and finish killing Mr. Schwartz." Gerlaugh also acknowledged ending up with Mr. Schwartz's money and refusing to share it with his partners. Thus, the critical elements of the offenses with which Gerlaugh was charged were proved by overwhelming evidence. Accordingly, this claim must fail.


Gerlaugh's next claim, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Cruz v. New

Page 1032

York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), is that his Sixth Amendment right to confrontation of witnesses was violated by the admission into evidence of the confession of his nontestifying codefendant, Encinas. We note first that Encinas's and Gerlaugh's confessions were nearly identical. At the time Gerlaugh's conviction and sentence became final, Parker v. Randolph, 442 U.S. 62, 75, 99 S.Ct. 2132, 2140-41, 60 L.Ed.2d 713 (1979), did not bar the statements of codefendants from evidence so long as they were "interlocking." Cruz altered this rule in 1987. Second, Gerlaugh has never challenged the accuracy of his confession; in fact, he admitted to the probation officer writing a pre-sentencing report for the trial judge that it was correct. Accordingly, and assuming that Encinas was unavailable to testify, under Cruz and Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986), his confession was properly introduced as admissible hearsay. But even if we assume that its admission was error, we conclude that the error was harmless by any standard because the codefendant's confession was thoroughly reliable and consistent with Gerlaugh's own description of the homicide. Indeed, portions of it were even helpful to him.


Gerlaugh's third claim has to do with the admission into evidence of (1) the admittedly gruesome photos of the decedent, and (2) the testimony of Mr. Roche, who...

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