Miller v. Stagner

• Decision Date: 08 April 1985
• Docket Number: Nos. 84-5980,84-5981,s. 84-5980
• Citation: 757 F.2d 988
• Parties: Donald Alan MILLER, Petitioner-Appellant, v. A.A. STAGNER and R.L. Pulley, Respondents-Appellees. Leroy FREEMAN, Petitioner-Appellant, v. A.A. STAGNER and R.L. Pulley, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 988

757 F.2d 988

Donald Alan MILLER, Petitioner-Appellant, v. A.A. STAGNER and R.L. Pulley, Respondents-Appellees.

Leroy FREEMAN, Petitioner-Appellant, v. A.A. STAGNER and R.L. Pulley, Respondents-Appellees.

Nos. 84-5980, 84-5981.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1985.

Decided April 8, 1985.

Donald Alan Miller, San Luis Obispo, Cal., Keith C. Monroe, Roger S. Hanson, Santa Ana, Cal., for petitioners-appellants.

Donald F. Roeschke, Los Angeles, Cal., for respondents-appellees.

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

Before SNEED, POOLE and FERGUSON, Circuit Judges.

POOLE, Circuit Judge:

Appellants Miller and Freeman were convicted of conspiracy to commit murder in violation of California Penal Code Secs. 182 and 187. They appeal the district court's dismissal of their petitions for writs of habeas corpus under 28 U.S.C. Sec. 2254.

FACTS

The district court reviewed the state record from which the following facts appeared: Appellant Miller, a physician, was principal owner of a corporation which ran two medical clinics. Appellant Freeman was employed by Miller as a janitor at both clinics. In October, 1978, one of the clinics was destroyed by fire. Fire investigators determined that the fire was arson-related. White, a long time friend of Freeman, contacted Woods of the Indio police department and claimed to have information regarding the fire. At the request of police and an insurance company White met with Freeman on several occasions to elicit details concerning the fire.

When White met with Freeman on December 20, Freeman asked White if he would be willing to kill someone and White responded in the affirmative. Freeman asked White what it would be worth to him; White said $5000. After Freeman made a phone call, the two men proceeded to Miller's office at the unburned clinic where they met Miller.

Miller asked White if he would be willing to kill Miller's wife, from whom he was separated, for $5000. Miller and White agreed during this conversation on the time, place and manner of the planned killing. Miller then told White to meet him at a bank in Beverly Hills on December 22 to receive half the money, the other half to be paid after the killing.

White failed to meet Miller as arranged, but instead met Freeman and told him he did not have the silencer for his gun that Miller had requested. The two men drove to Miller's office. Miller stated that he had waited for White for two and a half hours and wanted to know why White had not met him.

Miller stated that he wanted his wife killed no later than Sunday, December 24. White stated that he could not do it that quickly because he needed a silencer. Miller gave White $3000 in one hundred dollar bills. After he spoke briefly on the telephone, Miller stated the murder could not occur that weekend and took back the $3000.

On December 27, White and Freeman met at the Indio Hotel and drove to the clinic where they met Miller. There was further discussion between Miller and White about murdering Miller's wife.

They discussed the silencer and a date for the killing. White said he would try to obtain a silencer and Miller told him to contact Freeman when he obtained one.

Freeman and White returned to the Hotel Indio bar where they met Russell, an undercover investigator for the Riverside District Attorney's office. White stated he did not want to do the killing and suggested that Russell do it. Freeman asked Russell if he wanted to kill Mrs. Miller and Russell replied he was interested in making $5000. Russell stated he would need a photograph of Mrs. Miller and information about her vehicle and her residence. Freeman supplied the necessary information and $4000 in cash on January 2. He told him he would have the other $1000 the next day. Russell said he wanted more money and Freeman agreed to check it out.

Russell and Freeman met the following day and Freeman gave Russell an additional $1000 and drew for him a diagram of Mrs. Miller's house. He told Russell that Miller stated he might be able to come up with an additional $2000 in six months. When Russell suggested he talk to Miller, Freeman refused.

On January 4, Russell saw Miller at Alphy's Restaurant. He identified himself, told Miller that they had a mutual friend named Freeman, and said that he was the one who was going to handle it. Miller asked how he got involved; Russell responded that he decided to do it when White said he could not. Russell asked Miller for more money. Miller stated he might be able to pay more money in about six months. When Miller indicated he did not want to talk anymore, he was arrested by surveilling officers.

ANALYSIS

"State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Bashor v. Risley, 730 F.2d 1228, 1232 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).

Appellants challenge their convictions as unconstitutional on numerous grounds. We consider each contention and its pertinent facts separately.

1. Sufficiency of the Evidence

Appellants contend that the evidence was insufficient to support their convictions because the prosecution failed to prove all the elements of the crime charged. Specifically, they contend that because neither they, White, nor Russell intended to kill Mrs. Miller, the necessary element of intent to kill was lacking, and they could not properly be convicted of conspiracy to commit murder. Instead, appellants argue, they should have been charged with conspiracy to solicit another to commit murder. The solicitation charge would carry a maximum sentence of 6 years; ¹ the conspiracy charge carries a sentence of 25 years to life. ²

When a petitioner in a 28 U.S.C. Sec. 2254 habeas case challenges the sufficiency of the evidence, the issue is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The evidence in this case was adequate to support the conviction under this standard. The evidence of detailed conversations between appellants, White and Russell concerning the plans for murdering Mrs. Miller clearly established appellants' intent to kill. The mere fact that neither appellant intended to do the act of killing himself is insufficient to defeat their convictions. The goal of the conspiracy was not, as appellants contend, the solicitation of murder, but the commission of the murder

                of Mrs. Miller.  The evidence established the agreement between appellants to accomplish that goal and the overt acts committed in furtherance of it.   See People v. Horn, 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300 (1974) (proof of conspiracy to commit a specific offense requires proof that conspirators intended to bring about the elements of the conspired offense);  see also People v. Adami, 36 Cal.App.3d 452, 111 Cal.Rptr. 544 (1974) (specific intent to commit murder shown by solicitation)
                

2. Adequacy of Jury Instructions

a. Lesser included offense instruction

Appellants next argue that they were unconstitutionally convicted because the trial court did not sua sponte instruct the jury on the elements of conspiracy to solicit another to commit murder under the lesser included offense doctrine. Due process does not require that a lesser included offense instruction be given unless the evidence warrants such an instruction. Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982). California law is essentially the same: it requires a trial judge to instruct a jury on all lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offenses were presented, but not when there is no evidence the offense was less than that charged. People v. Sedeno, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 9, 518 P.2d 913 (1974), disapproved on other grounds, People v. Flannel, 25 Cal.3d 668, 684 n. 12, 160 Cal.Rptr. 84, 93 n. 12, 603 P.2d 1 (1980); People v. Saldana, 157 Cal.App.3d 443, 450, 204 Cal.Rptr. 465, 471 (1984).

Appellants' argument fails for the same reason that their preceding argument concerning the sufficiency of the evidence fails. The evidence in this case showed that the goal of the conspiracy was the commission of the murder of Mrs. Miller, not the solicitation of the murder. Thus the evidence supported the instruction given, not the instruction appellants argue should have been given under the lesser included offense doctrine.

b. Entrapment instruction

Appellants challenge the trial court's denial of their requested jury instruction on entrapment. Whether they were entitled to an entrapment instruction depends upon state law. See Hallowell v. Keve, 555 F.2d 103, 106 (3d Cir.1977). Failure to give an instruction which might be proper as a matter of state law does not amount to a federal constitutional violation. See Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983).

Appellants also claim that the denial of the instruction deprived them of due process of the law. Due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982). The test of entrapment under California law is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense. People v. Barraza, 23 Cal.3d 675, 689-90, 153 Cal.Rptr. 459, 467, 591 P.2d 947 (1979). In this case there is no evidence...