Trujillo v. Sullivan

• Decision Date: 01 April 1987
• Docket Number: No. 85-2093,85-2093
• Citation: 815 F.2d 597
• Parties: Jesse Joseph TRUJILLO, Petitioner-Appellant, v. George E. SULLIVAN, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 597

815 F.2d 597

Jesse Joseph TRUJILLO, Petitioner-Appellant, v. George E. SULLIVAN, et al., Respondents-Appellees.

No. 85-2093.

United States Court of Appeals Tenth Circuit.

April 1, 1987.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Dale S. Morritz, Asst. Atty. Gen. (Paul Bardacke, Atty. Gen. for the State of New Mexico, with her on the brief), Santa Fe, N.M., for respondents-appellees.

Before McKAY, LOGAN and MOORE, Circuit Judges.

McKAY, Circuit Judge.

Jesse Trujillo appeals an order of the United States District Court for the District of New Mexico dismissing his petition for a writ of habeas corpus. Mr. Trujillo was convicted on two counts of first degree murder while imprisoned in the New Mexico State Penitentiary in the deaths of prisoner Bobby "Barbershop" Garcia and prison guard Louis Jewett. Though the State sought the death penalty, the jury could not unanimously agree to impose it. Instead, it sentenced Mr. Trujillo to two life terms and three years, to run consecutively to each other and to his previous life sentence.

I.

The incident in question began on the catwalk of cellblock three of the New Mexico State Penitentiary where Officer Jewett heard an altercation erupt among three inmates: Jesse Trujillo, Ricky Garcia, and Bobby "Barbershop" Garcia (Barbershop). As Officer Jewett entered the catwalk, he observed Mr. Trujillo and Ricky Garcia holding shanks (prison knives) and fighting with Barbershop. The struggle moved into the guard station where Officer Jewett attempted to break up the fight and was stabbed, apparently by Ricky Garcia. Barbershop received multiple stab wounds and died shortly thereafter. Officer Jewett died approximately one month later from the injuries he sustained. Mr. Trujillo and Ricky Garcia were tried separately for the murders of Officer Jewett and Barbershop. At his trial, Mr. Trujillo relied on a theory of self-defense. His subsequent conviction was affirmed by the New Mexico Supreme Court. State v. Trujillo, 99 N.M. 251, 657 P.2d 107 (1982).

On this appeal, Mr. Trujillo raises ten points that he contends warrant issuance of a writ of habeas corpus. These same ten contentions were examined and rejected both by the New Mexico Supreme Court on direct appeal of his conviction and the district court in these habeas proceedings. We agree with these courts and affirm the dismissal of the petition for a writ.

II.

Mr. Trujillo contends that the trial court erred in failing to instruct the jury on a lesser offense than first degree murder with respect to the death of Officer Jewett. This court has previously held that "failing to instruct the jury that it might convict the defendant of a lesser offense than first degree murder [is not] reversible on habeas corpus." Poulson v. Turner, 359 F.2d 588, 591 (10th Cir.), cert. denied, 385 U.S. 905, 87 S.Ct. 219, 17 L.Ed.2d 136 (1966). However, our decision in Poulson was made before the Supreme Court's opinion in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Beck makes clear that should our rule be read to apply when the death sentence is imposed, it has been overruled.

In Beck, the Supreme Court held that Alabama's capital punishment statute was unconstitutional, because it prohibited the judge from instructing the jury on lesser included offenses when a defendant was charged with a capital crime. The jury had only two choices under the statute: conviction of the capital offense and imposition of the death penalty or total acquittal. The jury could not consider aggravating and mitigating circumstances or decide whether to forego the death sentence in favor of a life sentence without possibility of parole. Only the trial court considered such an alternative, and only after the jury had returned a guilty verdict with the requisite imposition of the death penalty.

The Supreme Court held that the death penalty could not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was prohibited from considering a verdict of guilt of a lesser included noncapital offense and the evidence would have supported such a verdict. Thus, there is clearly now a constitutional right to a lesser included offense instruction when the death penalty is imposed and the evidence warrants the instruction.

The Court spoke loosely of capital and noncapital "cases" without giving any consideration to cases in which the death penalty is sought throughout the trial but not ultimately imposed even though a guilty verdict is entered--the very facts of the present case. The Court considered but explicitly declined to decide whether to extend its holding to clearly noncapital cases. Id. at 638 n. 14. 100 S.Ct. at 2390, n. 14. Nonetheless, in the course of its opinion, the Court stated: "While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." Id. at 637, 100 S.Ct. at 2389. The Court thereby left the door open to extend the constitutional right to a lesser offense instruction further to even noncapital offenses. Whether the Court would recognize such a constitutional right turns in part on which constitutional provision it rested the Beck decision. Unfortunately, the Court's opinion is less than clear on this point.

On the one hand, the Court may have based its decision in a due process concept rooted in the eighth amendment prohibition against cruel and unusual punishment. In a case in which the death penalty is imposed, procedural safeguards and a higher degree of procedural exactitude are required that might not be constitutionally required in cases in which the death penalty is not imposed. The Court has repeatedly recognized the qualitative difference between capital and noncapital punishment and has strictly scrutinized the procedures under which the death sentence is imposed. If Beck is simply another in the line of cases since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), delineating procedural safeguards to ensure that the death penalty is not imposed on the basis of caprice or emotion, then the case says little about the constitutional right to a lesser included offense instruction when the death penalty is not imposed.

On the other hand, the Court may have grounded its holding on a broader-based due process concept under the fifth and fourteenth amendments. Much of the opinion focuses on the right of an accused to a fair and impartial trial, which requires a factfinding process free of any impermissible extraneous influences on the trier of fact. Alabama's statutory scheme invited considerations other than evidence of guilt of the crime charged to impact on the guilt-determining process. This "all-or-nothing" option created the possibility that if

the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Beck, 447 U.S. at 637, 100 S.Ct. at 2389. Alternatively, under the all-or-nothing scheme a jury might "be more likely to acquit than to convict whenever it has anything approaching reasonable doubt." Id. at 639, 100 S.Ct. at 2390. Either way, considerations other than the evidence presented at trial might affect the guilt determination under the Alabama statute. The increased risk of error in the factfinding process because of a failure to give a "third option" violates fundamental fairness.

In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.

Id. at 642, 100 S.Ct. at 2392.

The same concern for reliability of the factfinding process when no "third option" is provided also arises in the case in which the death penalty is not imposed. If this aspect of the opinion is paramount, then a constitutional, due process violation would necessarily be found in a habeas proceeding if a trial court erroneously refused to give a lesser offense instruction warranted by the evidence. For a very thoughtful law review note espousing just such a view, see Note, Beck v. Alabama: The Right to a Lesser Included Offense Instruction in Capital Cases, 1981 Wis.L.Rev. 560.

In the six years since Beck, the Supreme Court has declined to consider whether Beck should be extended to noncapital cases. See, e.g., Holloway v. Florida, 362 So.2d 333 (Fla.Dist.Ct.App.1978), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980) (Blackmun, Brennan, and Marshall, JJ., dissenting). Neither has it decided whether there is a constitutional right to a lesser included offense instruction warranted by the evidence in a case such as this, in which the death penalty is sought but ultimately not imposed. Analytically, the capital case in which the death penalty is not ultimately imposed appears to be more like the noncapital case than the death sentence case in which eighth amendment values are clearly implicated; unless the defendant is actually sentenced to death, the eighth amendment is not directly implicated. This case, therefore, belongs with noncapital cases merely because of the fortuity that the death penalty was not in fact imposed. ¹

Although we did not have this particular set of facts in mind in Poulson, our rule was broadly stated and appears to automatically foreclose habeas review of the failure to instruct on a lesser offense in all...