Harris v. Vasquez

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation913 F.2d 606
Docket NumberNo. 90-55402,90-55402
PartiesRobert Alton HARRIS, Petitioner-Appellant, v. Daniel VASQUEZ, Warden of California State Prison at San Quentin, Respondent-Appellee.
Decision Date19 November 1990

Charles M. Sevilla and Michael McCabe, San Diego, Cal., and Michael Laurence, American Civil Liberties Union of Northern Cal., San Francisco, Cal., for petitioner-appellant.

Jay M. Bloom, Supervising Deputy Atty. Gen., and Louis R. Hanoian, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee.

Kent S. Scheidegger, Sp. Deputy Atty. Gen., Sacramento, Cal., for amici curiae, States of Idaho, Ariz., Mont., Nev., and Wash.

Appeal from the United States District Court for the Southern District of California.

Before ALARCON, BRUNETTI, and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

On March 6, 1979, Robert Alton Harris ("Harris") was convicted of two counts of murder and sentenced to death. On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus in the United States District Court for the Southern District of California. In this petition, Harris alleged that the state had denied

him competent psychiatric assistance at trial, that the prosecution had presented false psychiatric testimony, and that newly discovered evidence showed he had organic brain damage and other mental disorders. Harris also asserted that he had been subjected to an unlawful interrogation, and had been denied effective assistance of counsel. Without holding an evidentiary hearing, the district court denied Harris's petition. We affirm.

I. Facts of Harris's Crimes 1

Between the months of May and July of 1978, Harris twice asked his brother, Daniel, to help in a planned bank robbery. Harris told his brother that guns would be necessary for the robbery.

On July 2, 1978, Daniel stole two guns. On July 3, 1978, the two brothers purchased ammunition, went to a nearby rural area, and practiced firing the weapons by shooting at trees while running and rolling--a drill they considered appropriate in preparing for the bank robbery. On July 4, 1978, the two brothers purchased more ammunition and knit caps, in which they burned eye holes, to serve as masks in the bank robbery. They practiced shooting again that afternoon and then reconnoitered the area around the bank they intended to rob.

The brothers decided to steal an automobile for use as a getaway car. On July 5, 1978, the brothers saw a car parked in a grocery store parking lot across the street from the bank. John Mayeski, 15 years old, and Michael Baker, 16 years old, were in the car, eating hamburgers. Harris assured Daniel that nobody would be hurt, and then pulled his pistol and got in the back seat of the boys' car. With Daniel following in Harris's car, the boys' car was driven to the area where the brothers had been target practicing the day before.

Harris and the boys agreed that the boys should walk to the top of a fire trail, wait until Harris and his brother had left, and then report the car stolen, giving misleading descriptions of the thieves. When the boys began walking up the hill, Harris shot John Mayeski in the back. Harris fired another shot into Mayeski's head, and then ran after Michael Baker. Finding Baker crouching and screaming in the brush, Harris shot him four times. Harris then returned and shot Mayeski point-blank into his head. Finally, Harris took the rifle Daniel had been carrying and shot Mayeski again.

The brothers then left the murder scene and returned home, where Harris ate the remainder of the boys' hamburgers and laughed at Daniel for not having the stomach to join him. While the brothers continued to prepare for the bank robbery Harris laughed and giggled about shooting the boys, saying he had blown Michael Baker's arm off, and amused himself by imagining what it would be like to be a police officer and report the deaths to the boys' families. Harris laughed that from the point-blank shot he had blown John Mayeski's brains out and then flicked bits of flesh from the end of his pistol into the street. Later that day the brothers robbed the bank.

That same day the brothers were arrested for the bank robbery and taken into custody. When they were interrogated, Daniel informed the officers of the murders and confessed, placing the blame primarily on Harris. Harris listened to portions of Daniel's confession and he then confessed. At midnight, Harris and his brother were interviewed by Dr. Wait Griswold, a psychiatrist, concerning the murders and Harris told Griswold that he had shot the victims after assuring his brother they would not be hurt.

Harris and his brother were booked July 6, 1978, and the following day Harris repeated his confession in detail to Investigator Bolden. Harris confessed again the same day, an hour before his arraignment, to Officer Newman.

On July 15, 1978, Harris told his sister while she visited him in jail, "now I guess

                because I killed those two boys, they were only 16 years old, then robbed the bank and kidnapped them was because I really wanted to die."    Harris's last extra judicial confession was made to a fellow inmate;  when asked why he killed the boys, Harris answered, "I couldn't have no punks running around that could identify me, so I wasted them."
II. State Court Proceedings

The court appointed Thomas J. Ryan ("Ryan") to represent Harris throughout the trial proceedings in state court. During Ryan's pretrial investigation, Ryan "became aware of" a psychiatric evaluation performed by Dr. Wait Griswold at the request of the district attorney and of a report summarizing Griswold's examination results. In his report, Dr. Griswold detailed his evaluation of Harris which included 10 1/2 hours of psychological testing and scoring, 3 hours of psychiatric evaluation and report, and perusal of records, and stated:

Mr. Harris was able to give a clear and concise description of his behavior, prior to, during, and following the alleged offense. It is the opinion that Robert Harris is legally sane in that at the time of the alleged offense he knew right from wrong and was aware of the nature and quality of his act.

It is the opinion that:

A. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to distinguish right from wrong.

B. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to adhere to the right.

C. The accused does possess sufficient mental capacity to understand the nature of the proceedings against him and to cooperate intelligently in his own defense.

Ryan hired two psychiatrists on a confidential basis to review Griswold's report and to investigate mental defenses such as insanity, diminished capacity, and potential mitigation at the penalty phase. Ryan provided these psychiatrists with all of the material he had relating to Harris's background. The state paid for these experts, authorizing $1,000.00 for Dr. Read and $250.00 for Dr. Rodgers.

Ryan was aware of the fact that in 1971 Harris had received an abnormal EEG tracing suggestive of organic brain damage. See Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.1988) ("Harris II "). The February 22, 1971, memorandum prepared by Dr. Joseph F. Aldrete stating the results of the abnormal EEG stated:

Impression: Abnormal EEG tracing suggestive of organic brain damage.

Deatils [sic]: This EEG is abnormal because of persistant [sic] dysrhythmias between the left frontal area and the right frontal area with theright [sic] being faster and sharper than the left. The left shows abnormal persistant [sic] slow waves.

Results of the dysrhythmias between the right posterior temporal runs and the left posterior runs with the left being faster and sharper than the right. The right shows persistant [sic] slow fada waves with some very sharp waves interspersed.

Comments: The EEG tracing suggests organic brain damage localized at the rpesent [sic] time to the left posterior frontal area and right posterior temporal area. This is felt to be secondary to chronic glue and solvent sniffing and if continued I would expect it to become generalized.

(Emphasis added.) Ryan explained that he did not use the abnormal 1971 EEG results during the guilt phase of Harris's trial because it would have been inconsistent with Harris's alibi defense. Harris II, 885 F.2d at 1368. Ryan was also aware of a subsequent EEG performed on Harris in 1977, only two years before the homicides, which demonstrated normal results.

At the guilt phase of Harris's trial, Harris denied that he had killed the boys; his chief defense was that his brother, Daniel As part of its case, the prosecution called Joey Abshire (aka Joey Ashworth), who was in custody on unrelated charges. Abshire occupied the same holding cell as Harris on July 26, 1978. Abshire testified that Harris said that:

had committed the murders. Harris testified on his own behalf, admitting the bank robbery but denying the kidnapping, robbing and murdering the two boys. He explained his pretrial confessions as attempts to protect his brother. Harris did not present any psychiatric evidence and did not enter a plea of not guilty by reason of insanity pursuant to California Penal Code Section 1016(6).

him and his brother took two boys up in the hills and after they got up there [Harris] told them to get out; one of them got out and [Harris] shot him. And [Harris] went around the other side and the other kid was crying and telling [Harris] not to shoot him and [Harris] shot him anyway.

When Abshire was asked if he had been in contact with law enforcement officials before speaking with Harris, Abshire stated "No, sir." The...

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