Stenson v. Lambert

• Decision Date: 24 September 2007
• Docket Number: No. 05-99011.,05-99011.
• Citation: 504 F.3d 873
• Parties: Darold J. STENSON, Petitioner-Appellant, v. John LAMBERT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 873

Darold J. STENSON, Petitioner-Appellant, v. John LAMBERT, Respondent-Appellee.

No. 05-99011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2006.

Filed September 24, 2007.

Robert H. Bombiner, AFPD, Seattle, WA, for the petitioner-appellant.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for the petitioner-appellant.

Rob McKenna, Attorney General of the State of Washington, John J. Samson, Assistant Attorney General, Criminal Justice Division, Olympia, WA, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-01-00252-MJP.

Before: MARY M. SCHROEDER, Chief Circuit Judge, ANDREW J. KLEINFELD and CARLOS T. BEA, Circuit Judges.

SCHROEDER, Chief Circuit Judge:

Darold Stenson was convicted and sentenced to death in Washington State in 1994 for the 1993 first-degree murders of his wife, Denise Stenson, and his business partner, Frank Hoerner. The trial was punctuated by disagreements between Stenson and his appointed counsel, Fred Leatherman. Leatherman believed that the trial phase was not winnable and therefore, thought he should focus on the penalty phase, to spare Stenson from the death penalty. Stenson believed Leatherman should focus on an acquittal. The most serious specific issue during the guilt phase was whether, during cross-examination of Frank Hoerner's wife (also named Denise), Leatherman should attempt to suggest that she, not Stenson, committed the murders. Relatedly, Stenson believed Leatherman should introduce "other suspect" evidence to implicate Denise Hoerner. Leatherman refused to take this approach, because the evidence suggesting that Denise Hoerner had committed the murders was virtually non-existent. The most serious penalty-phase issue was whether Leatherman was ineffective for conceding Stenson's guilt after the jury had decided the issue in the guilt phase, in order to persuade the jury not to impose the death penalty. State v. Stenson, 132 Wash.2d 668, 940 P.2d 1239, 1274-75 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).

Because of the disagreements during trial, Stenson moved for appointment of new counsel or, in the alternative, to represent himself, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The trial court held a hearing on the motion. It denied Stenson's request for substitution of counsel and found that his request to represent himself was untimely and equivocal. The Washington Supreme Court agreed that Stenson's Faretta request was equivocal, and did not reach the issue of timeliness.

Stenson also asked the trial court to appoint independent counsel to represent him at the hearing on his motion to appoint new counsel, raising an issue as to whether the hearing constituted a critical stage of the proceedings. The Washington Supreme Court found that while the hearing constituted a critical stage of the proceedings, independent counsel was not required because Leatherman's second-chair David Neupert, adequately represented Stenson's interests.

In addition to challenging Leatherman's concession of guilt during the penalty phase, Stenson challenged the trial court's refusal to allow testimony from his father and sister regarding the impact his execution would have on his three young children, claiming the exclusion violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). As to Leatherman's concession of Stenson's guilt, the Washington Supreme Court ruled the decision was tactical and not deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It further held that even if the decision had amounted to a deficiency, under Strickland's second prong Stenson could not show that he suffered any prejudice as a result of Leatherman's conduct. As to the Lockett claim, the Washington Supreme Court reasoned that Stenson's right to present mitigating evidence had not been violated because the trial court allowed all character and background evidence, including evidence of Stenson's relationships with his friends and family. It had excluded only direct statements of how Stenson's execution might impact his family members. This evidence, said the trial court, amounted to "nothing more than their opinions as to the sentence" Stenson should receive. Stenson, 940 P.2d at 1282.

We have no basis to disagree with the Washington Supreme Court's rulings on Stenson's various claims. We accordingly affirm the judgment of the district court denying Stenson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

FACTUAL BACKGROUND

On March 25, 1993, at 4:00 a.m. Stenson called 911 and told the operator "this is D.J. Stenson at Dakota Farms. . . . Frank has just shot my wife, and himself, I think." Dakota Farms was located in Clallam County, Washington and was the residence of Stenson, his wife, Denise Stenson, and their three young children. Stenson also operated a business, raising and selling exotic birds, from Dakota Farms.

Within several minutes of Stenson's 911 call, the police arrived at Dakota Farms. Stenson met them outside and led them to a guest bedroom on the ground floor, where Frank Hoerner lay dead on the floor with a bullet wound to the head. The body was face-down. A revolver lay between Hoerner's left hand and his head. Stenson next led the police officers to an upstairs bedroom where Denise Stenson lay in the bed, with a severe bullet wound to the head. She was airlifted to a hospital, but died the next day.

Stenson told the officers the following story: Frank Hoerner had arrived at his house a little after 3:30 a.m. in order to sign forms to insure ostriches that Stenson was going to buy for Hoerner on a trip to Texas. When Hoerner arrived, the two men went to Stenson's office in a separate building behind the house, where Hoerner signed the insurance forms. Hoerner then left the office building to use the bathroom in the house. When Hoerner failed to return, Stenson went to look for him and found him dead in the guest bedroom, where Stenson had shown police the body. Stenson heard moaning from upstairs. When he went upstairs, he found his wife shot in the head. Stenson had not heard any gun shots. Stenson then called the 911 operator. When the officers asked Stenson if he knew why someone would want to kill Frank Hoerner, Stenson responded that there had been sexual problems between Hoerner and his wife, Denise Hoerner, and that Frank Hoerner had complained about their marriage.

The subsequent investigation showed that Frank Hoerner had not committed suicide in the bedroom, but had been hit in the head and dragged into the house from the gravel driveway, through the laundry room, and into the guest bedroom where Stenson claimed to have found the body. Hoerner had been shot in the head in the guest bedroom at close range. The revolver had been placed near Hoerner's hand after his hand had come to rest on the floor.

Splatters of Hoerner's blood were found in the driveway. Blood splatters were also found on Stenson's pants that matched Hoerner's blood protein profile. Gravel from the driveway was found in the laundry room and inside Hoerner's pants. A bloody Stenson fingerprint was found on the freezer in the laundry room. According to Michael Grubb, a forensic expert, the pattern of some of the splatters indicated that they could not have been deposited on Stenson's pants after Frank had been moved, i.e., the splatters on Stenson's pants strongly suggested that Stenson had moved Frank's body after he was shot.

The police also found ammunition in Stenson's garage that fit the murder weapon. They found gunshot residue inside a pocket of Stenson's pants. Stenson had once been a martial arts instructor, and had a collection of nun-chucka sticks on the wall of his office. Dr. Brady, who performed the autopsy on Frank Hoerner, testified at the trial that the wounds on Hoerner's head were consistent with such a weapon.

The investigation also revealed that Stenson was in financial difficulty. Frank Hoerner had given Stenson a $50,000 deposit for the purchase of exotic birds, but at the time of the murders Stenson's financial records showed that he had used less than $2,000 of Hoerner's deposit to purchase birds. In addition, the bank account for Dakota Farms contained only about $3,400, and an audit indicated that Stenson had used investors' money for personal purchases. He had attempted to borrow a large amount of money shortly before the murders. Finally, Stenson had taken out a $400,000 life insurance policy on his wife.

Stenson was arrested on April 8, 1993, about two weeks after the murders. His jury trial took place in Clallam County, Washington, in the summer of 1994. The prosecution's theory was that Stenson had killed his wife in order to collect the $400,000 in life insurance money, and had killed Frank Hoerner in order to free himself from the $48,000 he owed Hoerner and to be able to blame Hoerner for the murder of Denise Stenson. The prosecutor argued to the jury that the physical evidence taken at the crime scene made Stenson's initial statements to the police implausible.

Frank Hoerner's wife, Denise Hoerner, testified that Stenson solicited Hoerner for investments in Stenson's exotic bird business. Since 1992, Hoerner had given Stenson more than $50,000 for the purchase of birds. About a month before the murders, Hoerner became worried about the money he had entrusted to Stenson and so told Stenson either to return his investment or to deliver the promised birds. In response, Stenson told the Hoerners that he needed to keep their money in his account in order to maintain the confidence of Asian investors from whom he was attempting to obtain a loan. Denise Hoerner further testified that her husband's anxiety continued when...