Pirtle v. Morgan, 01-99012.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 313 F.3d 1160
• Docket Number: No. 01-99013.,No. 01-99012.,01-99012.,01-99013.
• Parties: Blake PIRTLE, Petitioner-Appellant, v. Richard MORGAN,<SMALL><SUP>*</SUP></SMALL> Superintendent of Washington State Penitentiary, Respondent-Appellee. Blake PIRTLE, Petitioner-Appellee, v. Richard MORGAN, Superintendent of Washington State Penitentiary, Respondent-Appellant.
• Decision Date: 19 December 2002

313 F.3d 1160 Blake PIRTLE, Petitioner-Appellant,
v.
Richard MORGAN,^* Superintendent of Washington State Penitentiary, Respondent-Appellee.
Blake PIRTLE, Petitioner-Appellee,
v.
Richard MORGAN, Superintendent of Washington State Penitentiary, Respondent-Appellant. No. 01-99012. No. 01-99013. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 8, 2002. Filed December 19, 2002.

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Todd Maybrown, Allen, Hansen & Maybrown, Seattle, WA; James Lobsenz, Carney, Badley, Smith, & Spellman, Seattle, WA, for the petitioner.

Paul D. Weisser, Donna H. Mullen, Assistant Attorneys General, Criminal Justice Division, Olympia, WA, for the respondent.

Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CV-98-05028-JLQ.

Before: T.G. NELSON, PAEZ and TALLMAN, Circuit Judges.

PAEZ, Circuit Judge.

Petitioner Blake Pirtle appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with respect to the guilt phase of his trial, during which he was convicted of two counts of aggravated first-degree murder. The State appeals the district court's order conditionally granting a writ of habeas corpus as to Pirtle's death sentence.

Pirtle raises numerous arguments on appeal. We focus on only one: his claim that he was denied his Sixth Amendment right to effective assistance of counsel when his attorney failed to request a diminished capacity jury instruction. At trial, Pirtle testified that he committed the murders; the only issue in dispute was whether he acted with premeditation. Defense counsel presented substantial evidence through expert testimony to show that Pirtle lacked the capacity to premeditate because, at the time of the murders, he suffered from a right temporal lobe seizure, or "explosive dyscontrol," from chronic drug use. Nonetheless, counsel did not request a diminished capacity instruction, which would have allowed the jury to consider whether Pirtle's mental condition affected his ability to premeditate. Instead, despite the evidence that the drugs that Pirtle had used were wearing off approximately three hours before the murders, defense counsel requested an intoxication instruction. This instruction constricted the jury's consideration of the evidence relating to premeditation to the narrow issue of whether Pirtle was in a state of voluntary intoxication when he committed the murders.

We hold that, in light of the evidence presented in the guilt phase of the trial, defense counsel's failure to request a diminished capacity instruction was constitutionally deficient and that it undermines our confidence in the jury's verdict. Accordingly, we reverse the district court's denial of the writ of habeas corpus with respect to the guilt phase and remand with directions to the district court to grant a conditional writ of habeas corpus.

I. Factual Background¹

In the opening statement at Pirtle's trial, defense counsel told the jury that Pirtle killed Ted Folsom and Dawnya Calbreath,

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two employees of the Argonne Road Burger King in Spokane, Washington, but argued that he did not premeditate the murders. As the Washington Supreme Court acknowledged, "[t]he defense focused primarily on [Pirtle's] mental capacity at the time of the slayings." State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245, 252 (1996) ("Pirtle I").

Both Pirtle and expert witnesses testified in support of a diminished capacity defense. Pirtle testified that he had a long history of drug use. On the Thursday and Saturday before the murders, Pirtle injected cocaine and "crystal meth." After injecting methamphetamine on Saturday night, Pirtle told the jury, he became paranoid and began hallucinating. Thereafter, at some point between 1:00 a.m. and 2:30 a.m., he used cocaine and marijuana. Pirtle explained that the effects of the drugs were wearing off — specifically, he was "startin' to come down really hard" — at approximately 4:30 a.m. or 4:45 a.m. and that he wanted more drugs. To that end, he decided to rob the Burger King. Pirtle's sister, Davida, also testified that Pirtle appeared to be "coming down" from the drugs around 5:00 a.m.

Pirtle testified that he went to the Burger King to "get some more money to get drugged out again," but did not go with the intent to kill. He brought a knife from his kitchen. After he arrived at the Burger King a little after 7:00 a.m. and gave his name as employee Wesley LeDoux, Folsom let him in the back door of the restaurant. Pirtle told Calbreath that he was robbing the store, and cut the telephone wire. Pirtle then put Folsom and Calbreath in the freezer with their hands bound behind their backs.

Pirtle testified that he took money from the tills and the safe and planned to leave. He then told a drive-through customer that the restaurant would not be open for twenty minutes. Pirtle told the jury that he took Calbreath out of the freezer to "intimidate" her with a bread knife that he picked up in the restaurant to ensure that she would not tell anyone that he had robbed the Burger King and to give him time to "get out of the state or whatever." He testified that Calbreath grabbed the knife and that there was a struggle, which led to her hand wounds. At the sight of blood on the knife, Pirtle explained, he "snapped." He then killed both Calbreath and Folsom.

The evidence showed that Pirtle crushed Folsom's skull, cut his neck after he was unconscious, with nine wounds to the front of the neck and eight to the back, and used a hacksaw, which was left in Folsom's back. Pirtle hit Calbreath's head, probably with a paint can. He cut her neck with a knife at least sixteen times, and she had knife wounds on her hands. The examining doctor speculated that Calbreath first suffered the wounds to her hands, probably trying to defend herself, and then Pirtle knocked her unconscious with the paint can and inflicted the neck wounds.

In addition to Pirtle's testimony that he "snapped" before committing the murders, defense counsel "offered extensive expert testimony in an effort to establish Pirtle's diminished capacity to premeditate." Id. at 253. Three clinical psychologists and one neuropharmacologist testified on Pirtle's behalf. Dr. Phillip Murphy opined that Pirtle suffered a temporal lobe seizure at the time of the murders. This seizure, according to Dr. Murphy, caused Pirtle to experience a level of amnesia. For example, the fact that Pirtle could not remember using a hacksaw is consistent with a level of amnesia that may result from a temporal lobe seizure. Dr. Murphy testified that, as a result of the seizure, Pirtle could not premeditate at the time of the murders.

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Like Dr. Murphy, Dr. Jonathan Lipman, the neuropharmacologist, opined that Pirtle probably suffered a temporal lobe seizure at the time of the murders. Dr. Lipman explained that the right temporal lobe of the brain can develop heightened sensitivity from chronic drug use — known as "kindling" — which leads to effects that resemble schizophrenia, including hallucination, delusions, and paranoia. Once the brain is kindled, the kindling can last for several years. Kindling is associated with chronic, not acute, drug use. Dr. Lipman opined that Pirtle's brain was "kindled" from chronic drug use at the time of the murders, which was supported by the fact that Pirtle experienced auditory and visual hallucinations prior to leaving his home for the Burger King.

Dr. Lipman explained that kindling may cause seizures, or "explosive dyscontrol." He testified: "Kindling is what happened before the explosive dyscontrol. Once the dyscontrol has occurred, kindling is kind of irrelevant[;] you've fallen off the cliff." This state of explosive dyscontrol frequently involves "repetitive stabbing or repetitive movements due to ... dopamine stimulation of the brain." Dr. Lipman testified that the victims' neck wounds were consistent with explosive dyscontrol in a kindled person. He opined that Pirtle suffered from explosive dyscontrol at the time of the murders, which "le[ft] him without the ability to rationally think, merely to explode." Dr. Lipman testified that, in his opinion, Pirtle was incapable of premeditating the murders. Dr. Lipman emphasized that this condition was due to chronic drug use and not to acute use or intoxication.

Dr. Dennis Pollack also testified that Pirtle did not have the ability to premeditate the murders because of his drug and alcohol dependency and his drug use prior to the incident. Dr. Pollack diagnosed Pirtle with a personality disorder with anti-social and borderline features. Dr. Karen Sheppard testified, similar to Dr. Murphy and Dr. Lipman, that Pirtle's frontal lobes had been impaired from drug use at the time of the murders, which impaired his ability to evaluate a situation, to be organized, and to make decisions.

The State presented testimony on rebuttal that ultimately led the district court to grant a conditional writ as to Pirtle's death sentence. Over defense counsel's objection, the State called Deputy Calvin Walker in order to show how Pirtle appeared at the time of arrest "in reference to the large amount of testimony that [was] presented concerning [Pirtle's] mental state[.]" Deputy Walker testified that, while Pirtle was on the ground with guns pointed at his head, he asked if Pirtle knew that he was under arrest. Then, without informing Pirtle of his Miranda rights, Walker asked Pirtle if he knew why he was under arrest. Pirtle responded, "Of course I do[;] you might as well shoot me now." Defense counsel did not object to this statement. On the basis of Deputy Walker's testimony, the State argued that Pirtle could not have suffered from a seizure at the time of the murders because he did not suffer from a seizure when he was under the stress of an arrest at gunpoint.

Defense...