Towery v. Schriro

• Decision Date: 21 December 2010
• Docket Number: No. 08–99022.,08–99022.
• Citation: 641 F.3d 300
• Parties: Robert Charles TOWERY, Petitioner–Appellant,v.Dora B. SCHRIRO, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

641 F.3d 300

10 Cal. Daily Op. Serv. 15,739

2010 Daily Journal D.A.R. 19,077

Robert Charles TOWERY, Petitioner–Appellant,

v.Dora B. SCHRIRO, Respondent–Appellee.

No. 08–99022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 2010.Filed Sept. 22, 2010.Amended Dec. 21, 2010.

Daniel D. Maynard, Maynard, Cronin, Erickson, Curran & Sparks, PLC, Phoenix, AZ, for the petitioner-appellant.Terry Goddard, Attorney General, Kent E. Cattani, Chief Counsel, and Jon G. Anderson (argued), Assistant Attorney General, Phoenix, AZ, for the respondent-appellee.Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. 2:03–CV–00826–MHM.Before: MARY M. SCHROEDER, RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges.

ORDER

The opinion filed on September 22, 2010, slip op. 16067, and appearing at 622 F.3d 1237, is AMENDED and the amended opinion is filed concurrently with this Order.

With these amendments, the panel has voted to deny Appellant's petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. Appellant's petition for panel rehearing and petition for rehearing en banc, filed October 6, 2010, are DENIED.

No further petitions for rehearing will be permitted.

OPINION

FISHER, Circuit Judge:

Robert Towery was convicted of first-degree murder, armed robbery, first-degree burglary, kidnapping, theft and attempted theft. He was sentenced to death. Towery's habeas petition raises numerous issues, but the district court certified only one for appeal. We have jurisdiction under 28 U.S.C. § 2253(a) and affirm the district court's denial of habeas corpus on the certified claim. As discussed in Part II below, we grant a certificate of appealability (COA) as to two other claims, but hold that they also do not entitle Towery to habeas relief.

I. Certified Issue: Prosecutorial Misconduct

The issue that the district court certified concerns whether the prosecutor's use of witness testimony for inconsistent purposes constitutes misconduct that warrants reversal. In the murder trial, the witness testified he overheard Towery refer to a struggle with a victim who was an “old man.” In a previous trial in a different case, however, the same prosecutor had elicited this testimony to prove that Towery committed an unrelated robbery, not the murder at issue here. The Arizona Supreme Court concluded that, even assuming the prosecutor changed his mind in good faith as to which crime the overheard statement referred to, he committed misconduct by failing at least to alert the court that the first conviction was based on problematic evidence. Without specifically addressing whether this misconduct constituted a due process violation, the Arizona Supreme Court held that any error was harmless beyond a reasonable doubt. We hold that this harmless error determination was objectively reasonable, and therefore habeas relief is not warranted.

A. Factual Background

Robert Towery lived with Randy Barker and John Meacham in Scottsdale, Arizona, and shared his bedroom with his girlfriend and her young daughter. As the Arizona Supreme Court recognized, the case against Towery relied largely on the testimony of Barker, who testified in exchange for a reduced charge of second-degree murder. See State v. Towery, 186 Ariz. 168, 920 P.2d 290, 296–97 (1996). Unless otherwise indicated, the following facts are based on Barker's account.

On September 4, 1991, Barker and Towery agreed to rob Mark Jones, whom Towery had previously met, at Jones' house. That evening, the two of them drove in Barker's car to a Denny's Restaurant and from there took a taxi to be dropped off in Jones' neighborhood. They knocked on Jones' door, and Towery asked if they could use his telephone because their vehicle had broken down. Towery said, “Do you remember me? I'm from R and D Automotive.”

After the two were let in, Barker pretended to make a telephone call, while Towery pulled a gun out of his briefcase. Towery told Jones that they were robbing him, both men put gloves on and Barker handcuffed Jones. Over the course of about two hours, Barker kept watch on Jones while Towery collected about $1,200 in cash and loaded Jones' car with jewelry, electronics and other items.

Towery and Barker then led Jones to the master bedroom at gunpoint, asking him whether he expected anyone soon. Towery asked Jones whether he preferred to be tied up or to be injected with a drug that would put him to sleep. Jones chose the latter option and was laid face down on the bed. Towery then tried several times to inject Jones with a large veterinary syringe that Barker believed contained battery acid.

Believing Jones was pretending to have fallen asleep, Towery created a noose using a set of tie wraps from his briefcase and began to strangle him. Jones did not struggle, but made choking and gagging sounds. After removing the noose, Towery determined that Jones was not yet dead, made another noose and repeated his previous action. Towery and Barker then drove Jones' car to the Denny's to get Barker's car, unloaded the goods at their house and abandoned Jones' car in the parking lot of an apartment complex. A security guard at the complex saw the men and later identified Towery in a photo lineup. Jones' body was discovered the next morning.

Towery testified and offered an alibi. He said he dropped Barker off at the Denny's and saw him get picked up by someone else. Towery then drove Barker's car to meet Tina Collins at an adult book shop. Towery drove with Collins to another parking lot, where they talked for about two hours. Afterward, not finding Barker at their planned meeting spot, Towery drove home. Barker arrived at the house with Jones' car and property, and Towery helped him unload the goods and dispose of the car. Towery also claimed that he bought the stolen items that the police found in his possession from Barker.

Collins' videotaped deposition was admitted to corroborate Towery's story. She said they had first met a couple of weeks earlier and arranged to meet on September 4. She did not talk with Towery again until February 9, when she visited the prison at the suggestion of a friend of hers who happened to be visiting Towery's cellmate. In his closing argument, the prosecutor suggested that Collins had never met Towery prior to the prison visit and fabricated her testimony to bolster his alibi.

B. Procedural History

Towery and Barker were charged with first-degree murder, armed robbery, first-degree burglary, kidnapping, theft and attempted theft. After their trials were severed, the jury convicted Towery on all counts, and he was sentenced to death.

During the trial, Towery's roommate John Meacham testified that on the morning after a large amount of property had appeared in their house, he heard Towery say he was “having a hard time with an old man so he had—he had a hard time tying him up, so he had to knock him down.” Earlier, in March 1992, six months after the murder and five months before the murder trial, Towery was tried and convicted of an unrelated armed robbery in a separate case, but prosecuted by the same county attorney, John Ditsworth. In the robbery trial, Ditsworth had elicited Meacham's testimony that he heard Towery say, “I tried to get this old man to do what I wanted him to do, but he wouldn't do it.” The parties agree that Meacham's testimony in both trials referred to the same overheard statement. The same judge presided over both trials, but Towery had different defense lawyers.

On automatic appeal, the Arizona Supreme Court affirmed the murder conviction and death sentence. See Towery, 920 P.2d at 312. On the issue of Meacham's testimony, the court first ruled that judicial estoppel did not apply to bar the state from taking inconsistent positions, because Meacham's testimony was a minor part of the robbery case. See id. at 306. The court then considered whether the prosecutor had committed misconduct, noting Ditsworth's explanation that he came to the conclusion after the first trial that the overheard statement was more likely made in reference to the murder. See id. at 306 & n. 15. The court reasoned that even assuming the prosecutor had changed his mind in good faith, he committed misconduct by failing to give the court in the first case any notice that testimony had wrongly been admitted. See id. at 306.

The court decided, however, that under state law any error would be harmless if it could “conclude beyond a reasonable doubt that [the error] did not contribute to or affect the verdict.” Id. at 307 (citing State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1191, 1203 (1993)). The court noted that Towery's lawyer on cross-examination had elicited Meacham's testimony that he thought the overheard statement referred to a prior incident and not the murder of Jones. The court concluded that “[a]ny impeachment defense counsel would have obtained from having known of the testimony in the prior trial was effectively achieved,” and thus “the prosecutor's misconduct did not affect the verdict.” Id.

Towery filed a petition for post-conviction relief and a motion to disqualify Judge Hendrix, who had presided over both of his trials. Another judge denied the disqualification motion, rejecting Towery's claims of bias. Judge Hendrix denied the petition, which raised due process, false evidence, Confrontation Clause, ineffective assistance of counsel and other claims. A different judge, Judge Keppel, denied Towery's motion for rehearing of the petition. The Arizona Supreme Court denied review except with regard to one issue that has now been resolved and is not relevant to this appeal. See State v. Towery, 204 Ariz. 386, 64 P.3d 828, 830 (2003) (holding that the federal constitutional right to have a jury decide...