Lambright et al v. Stewart

• Decision Date: 19 August 1999
• Docket Number: No. 96-99026,N,Nos. 96-99020,s. 96-99020,96-99026
• Parties: (9th Cir. 1999) JOE LEONARD LAMBRIGHT, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Respondent-Appellee. ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Respondent-Appellee. o. 96-99025,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1181

191 F.3d 1181 (9th Cir. 1999)

JOE LEONARD LAMBRIGHT, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.

ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Respondent-Appellee.

ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Respondent-Appellee.

Nos. 96-99020, No. 96-99025, No. 96-99026

United States Court of Appeals, Ninth Circuit

Argued and Submitted August 19, 1999--San Francisco, California

Filed October 8, 1999

David P. Tiers, Tucson, Arizona (argued); Thomas E. Higgins, Jr., Tucson, Arizona, for petitioner-appellant Joe Leonard Lambright.

John F. Palumbo, Law Offices Pima County Public Defender, Tucson, Arizona (argued); Jon A. Young, Tucson, Arizona, for petitioner-appellant Robert Douglas

Scott Bales, Solicitor General, Phoenix, Arizona (argued); Eric Olsson, assistant Attorney General, Tucson, Arizona, for the respondents-appellees.

Appeals from the United States District Court for the District of Arizona; Richard M. Bilby, Chief Judge, Presiding, D.C. Nos. CV-87-00235-RMB, D.C. No. CV-87-00234-RMB

Before: Procter Hug, Jr., Chief Judge, James R. Browning, Mary M. Schroeder,

Stephen R. Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Stephen S. Trott,

Ferdinand F. Fernandez, Thomas G. Nelson, Susan P. Graber, and Kim M. Wardlaw, Circuit Judges.

Opinion by Judge Fernandez; Dissent by Judge Reinhardt

FERNANDEZ, Circuit Judge:

Joe Leonard Lambright and Robert Douglas Smith were found guilty of murder and sentenced to death. Their convictions and sentences were affirmed by the Arizona Supreme Court,¹ and they, ultimately, sought federal writs of habeas corpus on various grounds. The district court denied the writs and they appealed. A three-judge panel of this court ordered that the writs be granted on the single ground that they were deprived of their constitutional rights when the Arizona trial court used dual juries (one for each of them). See Lambright v. Stewart, 167 F.3d 477 (9th Cir. 1999). It did not decide the other issues that they raised. We withdrew the panel's opinion and ordered that the issue be heard en banc. See Lambright v. Stewart, 177 F.3d 901 (9th Cir. 1999). Because we disagree with the panel's determination, we now affirm the district court on the dual jury trial issue.

BACKGROUND

Lambright and Smith were traveling across the country with Lambright's girlfriend, Kathy Foreman. Smith was troubled by the fact that while Lambright and Foreman had intercourse in his presence, he did not have anybody along to satisfy him. For his part, Lambright thought that he "would like to kill somebody just to see if he could do it. " Lambright I, 138 Ariz. at 66, 673 P.2d at 4. They decided that both desires could be fulfilled, and they set out with Foreman to find a victim. They found Sandy Owen and kidnaped her. Smith raped her on the way to a mountain site where they all got out of the car and Smith raped Owen again as Lambright and Foreman had intercourse. What happened next was that Smith began choking Owen, and Lambright declared that she must be killed. So, "Lambright took Foreman's knife out of its sheath and began stabbing the victim in the chest and abdomen, twisting the knife around inside of her. Smith held one of the victim's arms while she was being stabbed, and Foreman held the other arm." Id. at 67, 673 P.2d at 5. After that, "Smith unsuccessfully tried to break Ms. Owen's neck by twisting her head. Then Lambright, Foreman or both began cutting deeply into the victim's neck with the knife. . . . The victim remained alive, and was at least semiconscious, as she attempted to raise herself up on one arm. Lambright picked up a large rock and hurled it at her head. Foreman testified that as he threw the rock he yelled `Die, bitch.' " Id. The three then drove off in a celebratory mood, playing the piece "We Are the Champions" as they went. See id. Once caught, the trio's song changed. Foreman turned state's evidence, was given immunity, and testified against her erstwhile lover and his friend. Lambright confessed, but deemed Smith to be the worst of the three. Smith, too, confessed, but he dubbed Foreman and Lambright as the real killers.

Lambright and Smith were joined in a single indictment because of their jointly facinorous conduct, but"[i]n light of the defendants' confessions, which were not totally interlocking, and the appearance of potentially antagonistic defenses, [the trial judge] severed the cases of Lambright and Smith." Id. As the Arizona Supreme Court pointed out:

Because most of the evidence was relevant to both defendants, however, the judge decided to hold a single "dual jury" trial, in which two separate juries were empaneled, each to decide the guilt or innocence of only one defendant, and each permitted to hear only evidence admissible against that one defendant. Id.

The Arizona Supreme Court then held that the trial judge had erred when he resorted to the use of dual juries. See id. at 69, 673 P.2d at 7. However, it also determined that no prejudice had been shown. See id. at 70, 673 P.2d at 8. Lambright and Smith now ask us to overturn the district court's decision and their convictions because, as they say, the use of the dual juries violated their due process rights.²

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. S 2254. We have jurisdiction pursuant to 28 U.S.C. S 1291. "We . . . review a district court's decision to grant or deny a S 2254 petition de novo." Smith v. Stewart, 140 F.3d 1263, 1268 (9th Cir. 1998).

DISCUSSION

Lambright and Smith suggest that the fact that the state trial court violated state procedural rules should lead to a decision that their due process rights were violated in this case, and that, indeed, dual jury use in their circumstances is so unreliable that the United States Constitution must have been violated. We disagree.

An error of state procedure is not, ipso facto, federal constitutional error. See Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). Rather, as the Supreme Court has told us with some asperity:

We have stated many times that "federal habeas corpus relief does not lie for errors of state law. " Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution laws, or treaties of the United States.

Id. at 67-68, 112 S. Ct. at 480 (citation omitted); see also Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).

In this case there may or may not have been a state procedural error. In Lambright I, 138 Ariz. at 67-70, 673 P.2d at 5-8, the Arizona Supreme Court said that the trial court had erred when it used dual juries. That was so because the court felt that "local rules must first be approved by this court . . . ." Id. at 69, 673 P.2d at 7 (citation omitted). Thus, because the court had not specifically authorized the use of dual juries, that use was deemed to be inappropriate. However, on further reflection, the Arizona Supreme Court has decided that the use of dual juries is not even an Arizona procedural error and has actually overruled Lambright I. As it said in Hedlund v. Sheldon, 173 Ariz. 143, 146, 840 P.2d 1008, 1011 (Ariz. 1992), " `[t]rial judges have inherent power and discretion to adopt special, individualized procedures designed to promote the ends of justice in each case that comes before them.' " Id. (citation omitted). Therefore, "[t]he trial judge's decision to empanel a dual jury was not a local rule, and thus the judge's implementing order did not exceed his authority . . . ." Id. Just how that change of heart should be treated for purposes of this case need not be mooted. Even if we assume that Hedlund does not tell us what the law always was -that Lambright I was just a mistaken grasp at the true rule of law -the most that we have is a procedural error by the trial court. That does not demonstrate that, because jury use was involved, there was a federal constitutional error.

No doubt, under the Sixth Amendment to the United States Constitution a defendant in a criminal case has a right to a jury trial, but that does not even mean that a state is required to use the traditional twelve-person jury. Variations are permitted. See Williams v. Florida, 399 U.S. 78, 86 & 102-03, 90 S. Ct. 1893, 1898 & 1907, 26 L. Ed. 2d 446 (1970). Nevertheless, there are limits. The state cannot reduce the number below six persons, see Ballew v. Georgia, 435 U.S. 223, 244-45, 98 S. Ct. 1029, 1041, 55 L. Ed. 2d 234 (1978), and if the state goes that low, the determination must be unanimous. See Burch v. Louisiana, 441 U.S. 130, 138-39, 99 S. Ct. 1623, 1627-28, 60 L. Ed. 2d 96 (1979); cf. Sochor v. Florida, 504 U.S. 527, 530, 112 S. Ct. 2114, 2118, 119 L. Ed. 2d 326 (1992) (jury recommendation regarding death penalty not unanimous).

The lower limit is a recognition of the fact that"[a]t some point [a] decline [in numbers] leads to inaccurate fact-finding and incorrect application of the common sense of the community to the facts." Ballew, 435 U.S. at 232, 98 S. Ct. at 1035. Accuracy of the result will be affected. See id. at 234, 98 S. Ct. at 1036. And verdicts vary as juries become smaller. See id. at 236, 98 S. Ct. at 1037. In short, the process will become so unreliable that the jury will not be functioning in a way required by the Sixth Amendment; that is to say, in essence there will not be a jury. So, while states can provide for different numbers of jurors (experiment if you will), they cannot tinker with jury size to the extent that what is left bears the appellation "jury" but is not even an allotrope of the traditional institution that we have come to know and revere.

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