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June 2, 1994

SUSAN POOLE, Warden, Respondent.


The opinion of the court was delivered by: IRMA E. GONZALEZ



 Petitioner, Laura Ann Troiani, is currently serving a term of life in prison without possibility of parole after having been convicted of conspiracy and murder with special circumstances. Petitioner conspired with five marines in a plan to kill her husband, Carlo, a sergeant in the U.S. Marine Corps. Petitioner planned to pay the co-conspirators from Carlo's life insurance proceeds. In August 1984, Carlo Troiani was killed near his car on a deserted road near Camp Pendleton. The case received much local publicity and the court severed petitioner's case from those of her co-defendants.

 A jury drawn from the North San Diego County Judicial District found petitioner guilty in August 1987. The Court of Appeal for the Fourth Appellate District of California affirmed Troiani's conviction in a 110-page unpublished opinion issued in February 1991. The Supreme Court of California denied Troiani's petition for review in May 1991. California Governor Pete Wilson denied petitioner executive clemency in May 1993. Troiani now files a petition for writ of habeas corpus in this court, after having exhausted her state remedies, and claims that she is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2254 (1988).

 In addition to requesting that this court appoint her counsel, Troiani raises six issues in her habeas petition. She claims that: 1) her 5th amendment right against self-incrimination, her due process rights and her 6th amendment right to counsel were violated when the trial court ordered her to undergo a mental examination by a prosecution psychiatrist; 2) her 5th amendment right against self-incrimination and her due process right that requires the prosecution prove every element of the offense beyond a reasonable doubt were violated when the trial court allowed the prosecution discovery of documents used to form the basis of a defense psychiatrist's opinion; 3) her due process rights were violated when the trial judge held an ex parte conference where prosecutors explained the basis for the peremptory challenge of a juror; 4) her 6th amendment right to compulsory process and due process right to present a defense were violated when the trial judge excluded the testimony of a defense witness sociologist; 5) her due process rights to a fair trial and an impartial jury were violated by extensive and pervasive pretrial publicity; and finally, 6) her due process rights were violated by the admission of an involuntary confession.

 Petitioner's habeas claims are identical to those raised in the California Court of Appeal. The threshold requirement for this court, then, is to determine what standard of deference, if any, is due to the state court's findings. In reviewing habeas petitions from state prisoners, federal courts must presume that the state court's factual findings are correct. 28 U.S.C. § 2254(d) (1988); *fn2" Kuhlmann v. Wilson, 477 U.S. 436, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). In ruling on a prisoner's habeas claims, the district court must make clear it is applying the presumption of correctness required by § 2254(d). The presumption applies to both state trial and appellate court findings of fact. Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981); Neuschafer v. McKay, 807 F.2d 839, 841 (9th Cir. 1987). "Mixed" questions of law and fact, and pure questions of law, however, are subject to full plenary review in federal court. Miller v. Fenton, 474 U.S. 104, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 Before reaching the merits of the issues before this court, petitioner requests that she be appointed counsel. While state habeas petitioners enjoy no right to counsel in federal habeas proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1990), Rule 8 of the Rules Governing § 2254 Cases requires that counsel be appointed if the habeas petition raises issues which mandate an evidentiary hearing.

 The circumstances under which a federal hearing is mandatory are specified in 28 U.S.C. § 2254(d) (1988). *fn3" In situations where an evidentiary hearing is not mandatory, the court may decide within its discretion that such a hearing is nevertheless desirable. If the court decides that an evidentiary hearing is neither required nor desirable, it may dispose of the petition "as justice shall require." See Rule 8(a), Rules Governing § 2254 Cases. In addition, when a habeas petitioner has a good understanding of the issues and the ability to present forcefully and coherently her contentions, no attorney is legally required. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

 After full and careful review of petitioner's habeas motion, the points and authorities offered in support of her motion, the Attorney General's answer, and the entire trial court record, it is the opinion of this court that petitioner received a full and fair state court evidentiary hearing which resulted in reliable findings. 28 U.S.C. § 2254(d) (1988); Townsend v. Sain, 372 U.S. 293, 319, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). In addition, it is clear that petitioner has a good understanding of the issues raised in her petition, and has argued them forcefully and coherently. LaMere, 827 F.2d at 626. Therefore, an evidentiary hearing is neither required nor desirable and petitioner's request for appointment of counsel is hereby DENIED.

 1) Mental Exam by Prosecution Psychiatrist

 Petitioner claims that her 5th amendment right against self-incrimination and her 6th amendment right to counsel were violated when the trial court ordered a mental examination by a prosecution psychiatrist, Dr. Goldzband. The Court of Appeal for the Fourth District upheld the trial court's ruling, relying on People v. Danis, 31 Cal. App. 3d 782, 107 Cal. Rptr. 675 (1973). Danis held admissible the testimony of a court-appointed psychiatrist who had conducted a mental examination of the defendant. Danis claimed a diminished capacity defense and argued that he was unable to entertain the required intent to commit theft. Id. at 784. The prosecution offered the testimony to rebut the defendant's psychiatric testimony in support of the diminished capacity defense. The court held that the testimony was admissible because the defendant had already waived his privilege against self-incrimination by placing his mental state in issue. Id. at 786-87.

 A. 5th Amendment Claim

 Petitioner invoked her 5th amendment privilege against self-incrimination at trial, but claims that the Court of Appeals' reliance on Danis is inapposite and that the court-ordered mental exam was inappropriate because she did not offer a diminished capacity or insanity defense. However, petitioner based her defense on the contention that she did not form the requisite criminal intent to kill or to participate in a conspiracy to kill due to her depressed mental state. (See Cal. Ct. App. Op. at 18). To negate the specific intent underlying the offenses charged against her, petitioner offered the testimony of a forensic psychiatrist, Dr. Mark J. Mills. Dr. Mills gave extremely detailed testimony concerning petitioner's upbringing and psychological disabilities. Dr. Mills opined that petitioner was incapable of implementing the murder plans and "didn't really feel she was a participant in them." (Cal. Ct. App. Op. at 76). The prosecution introduced Dr. Goldzband's testimony to rebut this evaluation.

 Under California law, medical experts have routinely been permitted to give opinions as to the state of mind (sanity, malice, premeditation, specific intent) of the defendant in criminal cases. See 1 B.E. Witkin, California Evidence, § 498, at 470-71 (3d ed. 1986). The admissibility of such evidence is not limited to evidence of mental disease or defect bearing upon the affirmative defenses of insanity or diminished capacity; testimony which bears upon the existence of the mental state required by the offense charged is also admissible. People v. Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959).

 Federal case law has not been uniform, however, with respect to the admissibility of expert testimony on the issue of intent when the defense of insanity is not raised. See Charles A. Wright, Federal Practice & Procedure, § 208, at 752 n.1 (2d ed., 1980 & Supp. 1994). Federal Rule of Criminal Procedure 12.2(b), only requires that the government be given notice of a defendant's insanity defense and notice of expert testimony of a defendant's mental condition. The original Committee Notes to Fed. R. Crim. P. 12.2(b) carefully noted that the Rule only provided that pretrial notice be given if a defendant intended to introduce such evidence: it did not purport to define its admissibility in cases where the defendant did not raise an insanity defense. See Fed. R. Crim. P. 12.2(b) Advisory Committee's Notes. The Rule was amended in 1983, however, and its language expanded to include expert testimony relevant to "any mental condition of the defendant [which] bear[s] upon the issue of his guilt." Id. (emphasis added).

 It is clear, however, that the Ninth Circuit grants the trial courts wide latitude in deciding whether to admit or exclude psychiatric evidence directed to the capacity of a defendant to entertain a specific intent. See, e.g., United States v. Demma, 523 F.2d 981 (9th Cir. 1975); United States v. Byers, 730 F.2d 568 (9th Cir. 1984). The 5th amendment does not prohibit the use of a defendant's statements which are made during a court-ordered or court approved mental examination so long as they are offered strictly to rebut the defendant's state of mind at the time the offense was committed. See Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981) Buchanan v. Kentucky, 483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906 (1987); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 20.4 at 867 (2d ed. 1992).

 In petitioner's case, the court admitted the testimony of prosecution psychiatrist Goldzband to directly rebut that of defense forensic psychiatrist Mills, who testified at length about petitioner's psychological disabilities. Dr. Mills concluded that in his opinion, petitioner was "unable to implement or follow through with any detailed plan" and "incapable of deflecting events" in which she participated and which resulted in her husband's murder. (Cal. Ct. App. Op. at 76). Clearly, defense counsel offered his testimony to suggest that petitioner did not have the mens rea to murder or to commit conspiracy to murder. This court therefore finds that nothing in the trial court's appointment of Goldzband, nor in his rebuttal testimony at trial, in any way compelled petitioner to incriminate herself, and thus no 5th amendment violation took place.

 B. 6th Amendment Claim

 In this case, petitioner admits that the trial court did grant her the opportunity to consult with counsel during the examination by Dr. Goldzband, (See Points & Authorities in Support of Petition for Writ of Habeas Corpus at 2), and she offers no further proof of any constitutional violation. Therefore, this ...

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