Odle v. Vasquez

• Decision Date: 27 December 1990
• Docket Number: No. C-88-4280-CAL.,C-88-4280-CAL.
• Citation: 754 F. Supp. 749
• Court: U.S. District Court — Northern District of California
• Parties: James Richard ODLE, Petitioner, v. Daniel B. VASQUEZ, Defendant.

754 F. Supp. 749

James Richard ODLE, Petitioner, v. Daniel B. VASQUEZ, Defendant.

No. C-88-4280-CAL.

United States District Court, N.D. California.

December 27, 1990.

COPYRIGHT MATERIAL OMITTED

Warren W. Wilson, Lillick & Charles, San Francisco, Cal., for petitioner.

Blair Hoffman, Dane Gillette, and Laurence Sullivan, Deputy Attys. Gen., San Francisco, Cal., for defendant.

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

LEGGE, District Judge.

I.

This is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by James Richard Odle, a prisoner in state custody. Petitioner is under sentence of death. Petitioner is represented by counsel appointed to him by this court pursuant to N.D.Cal.Local R. 296, ¶ 4.

The petition alleges seven claims of constitutional error in petitioner's state trial and death sentence. The state has filed an answer denying that the trial and sentence were unconstitutional. The state has not argued that any of petitioner's claims raise "new constitutional rules" which cannot be considered by this court under Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); and this court is not required to consider the question sua sponte. See Collins v. Youngblood, ___ U.S. ___, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). Petitioner has filed a traverse and, after oral argument, the petition was submitted to the court for decision. This court has reviewed the record of this proceeding, the state court record,¹ the briefs and arguments of counsel, and the applicable authorities. It has done so with the principle in mind that "the federal judiciary must ... take particular care in death penalty cases to give patient and thoughtful review of claims presented by petitioners through their appointed counsel." Mercer v. Armontrout, 864 F.2d 1429, 1433 (8th Cir.1988).

II.

The facts of the crime of which petitioner was convicted are not directly relevant to this petition. Those facts are undisputed here, and are set forth in the California Supreme Court's opinion affirming petitioner's conviction. See People v. Odle, 45 Cal.3d 386, 394-401, 247 Cal.Rptr. 137, 754 P.2d 184, cert. denied, 488 U.S. 917, 109 S.Ct. 275, 102 L.Ed.2d 263 (1988).

Four of petitioner's seven claims in this petition are based upon an extensive brain injury which he suffered before his commission of the crime. In 1973 petitioner was involved in a serious auto accident. He suffered a skull fracture, and the temporal lobe of his brain was lacerated and hemorrhaged. After almost a year of documented mental difficulties, the attending neurosurgeon performed an operation and removed a substantial portion of the temporal lobe region of petitioner's brain. The procedure is referred to as a temporal lobectomy. 20 RT 24-27.

Petitioner's surgeon testified that after the operation, petitioner was irrational, emotional and angry. 20 RT 25-35. Petitioner complained of spells of losing control, and he expressed his fear that he might hurt or kill someone. 20 RT 30-35. Petitioner's acquaintances, friends and relatives testified to varying degrees of marked change in petitioner's behavior and disposition after the 1973 accident. 20 RT 88-95; 17 RT 10-15, 21; 28 RT 50-60; 13 RT 78. Petitioner's 1980 and 1982 EEG tests each revealed at least some abnormalities. Petitioner presented expert testimony to the effect that some temporal lobectomy patients have been known to become excessively emotional and irrational and to lose control of themselves. 20 RT 23; 21 RT 40; 21 RT 102-04.

In rebuttal, the state introduced evidence of petitioner's criminal record prior to and since the accident. 21 RT 140-42. The state also introduced expert testimony that there was no automatic relationship between petitioner's injury and his criminal behavior. The state's expert testified that there was no evidence of diminished capacity in connection with the crime. The expert's opinion was that petitioner's actions indicated that he was able to and did think rationally during the commission of the crime. 22 RT 8-19.²

The jury heard the evidence, including the conflicting medical evidence, and convicted petitioner of the crime. At the conclusion of the penalty phase of the trial, the jury sentenced him to death.

Most of petitioner's claims here do not concern his conviction, but instead pertain to the penalty phase of his trial and the resulting sentence of death.

III.

Petitioner's first contention is that at the penalty phase of his trial, the jury was precluded by the trial court's instructions from adequately considering evidence of his brain injury, background and character.

Petitioner has a constitutional right to have his penalty jury hear and be able to give effect to all relevant mitigating evidence, including evidence of his background and character. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Petitioner's penalty jury was instructed using the language of CALJIC³ No. 8.84.1:

In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case.

You shall consider, take into account and be guided by the following factors, if applicable:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.

(b) The presence or absence of criminal activity by the defendant which involves the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the defendant sic was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to a moral justification or extension sic or extenuation for his conduct.

(g) Whether or not the defendant acted under extreme duress or under the substantial domination of a person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of a mental disease or defect or the effects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor and,

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

29 RT 89-90.

The trial court augmented this CALJIC instruction with the following instructions requested by petitioner⁴:

Mitigation is defined as an abatement or diminution of a penalty or punishment imposed by law.

Mitigating circumstances are such so as not to constitute a justification or excuse for the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability.

. . . . . .

You were previously instructed in the guilt phase of this trial that sympathy or pity for a defendant should not influence your consideration of the evidence. In this, the penalty phase of the trial, the jury may properly consider sympathy or pity for the defendant in determining whether to show mercy and spare the defendant from execution.

In deciding whether the defendant, Mr. Odle, should be sentenced to death or to life in prison without the possibility of parole, you must weigh the mitigating circumstances against the aggravating circumstances that you find to be established by the evidence.

The fact that you have previously found Mr. Odle guilty beyond a reasonable doubt of the crimes of murder in the first degree is not in itself an aggravating circumstance.

29 RT 90-91.

Petitioner's contention is that the enumerated CALJIC mitigating factors — specifically factors (d), (h) and (k), which pertain most closely to the evidence of his brain injury — limited the jury's consideration of such mitigating evidence to events which were directly connected to the crime. Petitioner argues that this limitation is constitutionally impermissible, because it precludes the jury's consideration of his general background and character, unrelated to the specific crime.

Factor (d) speaks of whether "the offense was committed." Factor (h) says "at the time of the offense." Factor (k) is in terms of "the crime." Petitioner contends that although the jury heard the evidence of his brain injury and its possible consequences, the jury was precluded from giving effect to that evidence unless it was directly connected to the crime. Hence, petitioner argues, the jury was prevented by the instructions from concluding that as a result of his brain injury and all of its effects, death was not the appropriate punishment. Pet. at 45-52.

The California Supreme Court rejected petitioner's argument. See Odle, 45 Cal.3d at 421, 247 Cal.Rptr. 137, 754 P.2d 184. It held that any inference in CALJIC 8.84.1 that the mitigating evidence must be directly connected to the crime itself was cured in this case by the prosecutor's arguments, defense counsel's arguments, and the additional jury instructions given at petitioner's request. Id. at 417-19, 247 Cal.Rptr. 137, 754 P.2d 184.

The California Supreme Court has noted possible ambiguity in CALJIC 8.84.1. In People v. Easley, 34 Cal.3d 858, 878, 196 Cal.Rptr. 309, 671 P.2d 813 (1983), the court said that "there is some force to the argument that the wording of CALJIC 8.84.1 is potentially confusing...." In an often-cited footnote, the court suggested that "in order to avoid potential misunderstanding in the future, trial courts ... should inform the jury that it may consider as a...