Rice v. Wood
| Decision Date | 10 April 1995 |
| Docket Number | 93-99012,Nos. 93-99011,s. 93-99011 |
| Citation | 44 F.3d 1396 |
| Parties | David Lewis RICE, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant. David Lewis RICE, Petitioner-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Young, Asst. Atty. Gen., Corrections Div., Olympia, WA, for respondent-appellant, cross-appellee.
Robert S. Mahler and Peter Offenbecher, Federal Public Defenders, Seattle, WA, for petitioner-appellee, cross-appellant.
Appeals from the United States District Court for the Western District of Washington.
Before: WALLACE, Chief Judge, D.W. NELSON and LEAVY, Circuit Judges.
Opinion by Judge Leavy; Partial Concurrence and Partial Dissent by Judge Wallace.
Following a jury trial in Superior Court for King County, Washington, David Lewis Rice ("Rice") was found guilty of four counts of aggravated first degree murder and sentenced to death. The Supreme Court of Washington upheld Rice's conviction and sentence on direct appeal, and denied both of his subsequently filed Personal Restraint Petitions ("PRPs"). Rice filed a petition for writ of habeas corpus in federal district court, alleging numerous errors at both the guilt and penalty phases of his trial. The district court denied relief as to all of Rice's claims relating to his conviction, granted the petition with respect to one of his sentencing claims, and declined to reach the merits of the remaining issues. We affirm in part, reverse in part, and remand for further proceedings.
On Christmas Eve 1985, guests arrived at the home of Seattle attorney Charles Goldmark to find a grisly sight: Charles, his wife, Annie, and their two sons, Colin and Derek, had been viciously assaulted and left to die. The coroner pronounced Annie dead at the scene; Charles, Colin, and Derek all succumbed from their injuries over the next five weeks. On December 26, 1985, the police arrested Rice on suspicion of having committed the Goldmark crimes. After being advised of his Miranda rights and consulting with an attorney, Rice signed a waiver and made a full, tape-recorded confession.
The State of Washington charged Rice with four counts of aggravated first degree murder, and the prosecution gave notice that it intended to seek the death penalty. Rice entered a general plea of not guilty and a special plea of not guilty by reason of insanity. Notwithstanding the second plea, defense counsel conceded that Rice was competent to stand trial.
The trial court bifurcated the criminal proceedings into guilt and penalty phases. During the former, Rice did not seriously contest the fact that he had killed the Goldmarks; rather, he argued that he was not responsible for the murders because he had been insane at the time of the killings. The jury rejected Rice's insanity defense and returned a verdict of guilty on all four counts of aggravated first degree murder, based on its findings that Rice had committed the murders as part of a common scheme during the course of a robbery and in order to conceal the commission of that robbery.
The penalty phase of the trial then began before the same jury. During the course of their deliberations, and while Rice was absent, the jurors asked that the tape recording of Rice's confession be replayed. Defense counsel made no objection and, without consulting Rice, purported to waive his right to be present. 2 The court ordered the tape to be replayed and the jury resumed its deliberations. When the jury announced that it had Rice appealed to the Supreme Court of Washington, which affirmed both his conviction and sentence. State v. Rice, 110 Wash.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989). Rice then filed a PRP, which the Supreme Court of Washington denied. Shortly thereafter, Rice filed a petition for writ of habeas corpus in federal district court. Rice amended the petition, then filed a second PRP in state court. The district court stayed the habeas proceedings pending the outcome of Rice's second PRP. When the Washington high court again denied relief, In re Rice, 118 Wash.2d 876, 828 P.2d 1086, cert. denied, --- U.S. ----, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992), Rice filed a second amended habeas petition.
reached a verdict, however, the court learned from jail officials that Rice had ingested a "tobacco substance" 3 and had been rushed to the hospital for treatment. Upon being told that Rice could not be returned to the courtroom for at least two hours, the trial judge asked counsel whether they would agree to permit the jury to return its verdict in Rice's absence. The prosecution indicated it had no objection, and defense counsel purported to waive Rice's right to be present. The court then accepted the jury's announcement that leniency was not merited and polled the jury.
The district court granted the petition, holding that Rice could not and did not waive his right to be present, and the trial court therefore erred by accepting the return of the jury's death verdict in Rice's absence. By amended order, the district court also rejected all of Rice's guilt phase claims and declined to reach the merits of the remaining penalty phase claims.
Tana Wood ("Wood"), 4 Superintendent of the Washington State Penitentiary ("WSP"), timely appealed, arguing that Rice is not entitled to habeas relief because he impliedly waived his right to be present by attempting suicide (i.e., by swallowing the tobacco substance); and, in the alternative, any resultant error was harmless. In addition, Wood asks that we remand the case and direct the district court to decide each of Rice's remaining penalty phase claims. Finally, Wood contends that the district court improperly denied her motion to strike allegedly unexhausted claims in Rice's habeas petition as well as those claims that either were, or would have been deemed to be, procedurally barred by the Supreme Court of Washington. Rice, now a WSP death row inmate, timely cross-appealed, arguing, inter alia, that the district court erred by denying his guilt phase claims without either conducting an evidentiary hearing or articulating a basis for its decision.
93-99011 (DIRECT APPEAL)
As noted, the district court held that Rice could not and did not waive his right to be present at trial. Wood's direct appeal therefore stands or falls largely on the answer to one question: Could and did Rice waive his right to be present when the jury returned its verdict during the penalty phase of his trial? Put another way, was Rice's mental state such that he could have voluntarily, knowingly, and intelligently waived that right?
A criminal defendant charged with a felony has the right to be present at every stage of his trial. 5 Campbell v. Wood, 18 F.3d at 671. As the Supreme Court noted long ago, this right extends from "the empanelling of the jury [to] the reception of the verdict[.]" Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912). A defendant can waive that right, however, provided he does so voluntarily, knowingly, and intelligently. Campbell v. Wood, 18 F.3d at 671. Such a waiver need not be express; it may be implied, e.g., by a showing that the defendant "knowingly and voluntarily fail[ed] to appear for trial." United States v. Houtchens, 926 F.2d 824, 827 (9th Cir.1991).
Wood argues that Rice knowingly and voluntarily failed to appear--and thereby impliedly waived his right to be present at trial--when he attempted suicide by drinking a poisonous substance which, but for timely medical intervention, might have killed him. The Supreme Court of Washington adopted this line of argument, concluding that, because "Rice's suicide attempt was fully voluntary ... Rice's waiver was both knowing and voluntary." State v. Rice, 110 Wash.2d at 619-20, 757 P.2d at 912 (footnote omitted).
One of the difficulties with this conclusion is that it is based on an assumption, viz., that Rice drank the tobacco substance in an attempt to kill himself. While that assumption may not be unreasonable under the circumstances, the record does not reflect that the State of Washington ever conducted a fact-finding hearing to determine just why Rice did what he did, or what his mental state was at the time. See, e.g., State v. Rice, 110 Wash.2d at 635-37, 757 P.2d at 921 (Utter, J., dissenting). Certainly at the time the trial court decided to proceed without him, no one other than Rice knew whether he had actually tried to kill himself or had simply (and accidentally) overdosed on a homemade version of liquid nicotine. 6
The only real evidence in the record concerning Rice's state of mind at the time he ingested the tobacco substance comes from the reports and testimony of the three psychiatrists who examined Rice pursuant to the district court's order of December 4, 1989. 7 While the psychiatrists...
To continue reading
Request your trial
-
Personal Restraint of Benn, Matter of
...which holds that violation of the right to be present is a "structural error" which can never be held harmless. Rice v. Wood, 44 F.3d 1396, 1401-02 (9th Cir.1995) (absence at return of verdict in penalty phase), vacated in part, 77 F.3d 1138 (9th Cir.1996). Even if the defendant were correc......
-
State v. Cross
...first degree aggravated murder. His conviction and sentence of death were overturned by the Ninth Circuit Court of Appeals, Rice v. Wood, 44 F.3d 1396 (9th Cir.1995). Rice subsequently pleaded guilty and was sentenced to life without the possibility of parole. Again, the State elected not t......
-
State v. McKnight
...he now challenges. Thus, appellant's absence from the two in-chambers conferences was consistent with his wishes. See Rice v. Wood (C.A.9, 1995), 44 F.3d 1396, 1400 (defendant can waive his right to be present); see, also, Polizzi v. United States (C.A.2, 1991), 926 F.2d 1311, 1322-1323 (co......
-
Buckley, v. Terhune
...152 F.3d 1062, 1068-1069 (9th Cir.1997), rev'd on other grounds, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Rice v. Wood, 44 F.3d 1396, 1402 n. 10 (9th Cir.1995), vacated in part on other grounds, 77 F.3d 1138 (9th Cir.) (en banc), cert, denied, 519 U.S. 873, 117 S.Ct. 191, 136 L.......