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Severance v. Evans

June 16, 2009



Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on four counts of second degree armed robbery and his sentence of 119 years to life. He claims that: (1) he was denied the right to due process and a jury trial when the trial judge directed a verdict of sanity (raised in grounds one and two of the petition); and (2) he was denied the right to represent himself during the sanity phase of his trial. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Background*fn1

In a prior appeal, this court remanded this case for trial on defendant Victor Lee Severance's plea of not guilty by reason of insanity. At the beginning of that trial, the court denied defendant's belated request to represent himself.*fn2 At the end of the trial, the court granted the prosecution's motion for a directed verdict of sanity.

In this appeal, defendant contends the trial court erred in denying his request to represent himself and in directing a verdict of sanity. We conclude the trial court did not abuse its discretion in denying defendant's belated request for self-representation because defendant's purpose was "to delay or disrupt the proceedings." We also conclude that a trial court has the power to direct a verdict of sanity when there is no substantial evidence that the defendant was insane at the time of his crimes. Since that was the case here, the trial court did not err in taking the issue of defendant's sanity from the jury. Accordingly, we will affirm the judgment.


In January 2000 defendant robbed a coffee shop, and in May 2000 he robbed two stores. At his arraignment in September 2000, he entered dual pleas of not guilty and not guilty by reason of insanity. Defendant represented himself in a jury trial on four counts of second degree robbery with four related weapon enhancements, with Howard McEwan serving as standby counsel.

The jury found defendant guilty of all four charges and found the weapon enhancement allegations true. At the outset of a separate jury trial on allegations of three prior convictions, defendant requested an attorney. After initially denying that request, the trial court appointed McEwan to represent defendant. The trial on the prior conviction allegations then proceeded, and the jury found those allegations true. The trial court subsequently sentenced defendant to four consecutive indeterminate terms of 25 years to life and to consecutive determinate terms totaling 19 years. No sanity trial was ever held.

In October 2002, this court affirmed the jury's verdicts but reversed the judgment and remanded the case for trial on defendant's insanity plea. The remittitur issued in January 2003.

Following various delays, the sanity phase of defendant's trial was held in October 2004.*fn3 At the outset of the trial, the court denied defendant's request to represent himself based on the conclusion that defendant's purpose was "to delay or disrupt the proceedings." Defendant testified on his own behalf. The substance of his testimony was as follows:

In response to questions from his attorney, defendant testified he had not felt very well for the past four and one-half years, since the police bashed in his head. He remembered the year 2000 only "[a] little bit." He was not in control of himself then because whenever he gets hit in the head Satan takes control of his body and he goes crazy and does things he does not normally do. Satan invites defendant to come join him, but defendant refuses because defendant is the Savior, who is here to rescue mankind. Defendant has Satan trapped inside his body, and when he dies he will take Satan with him to a far-away planet, where Satan will leave his body and they will begin a new planet like earth.

Defendant did not remember taking a gun and trying to get money from somebody because when Satan takes control of his body, he goes into a state of fugue amnesia, which is caused from blows to the head and which he read about in a book.

That concluded the testimony defendant gave in response to questions from his attorney. Defendant, however, was allowed to give additional testimony on his own, which was as follows:

Defendant is 50 years old and suffered severe head trauma about six times in his life. The first time was when he was four years old and was run over by a hit-and-run driver. In 1980, he was knocked out by a blow to the head with a baseball bat; in 1983, he suffered a similar fate from a bumper jack. In 1986, he was hit on the head six times with the butt of a handgun; in 2000, the police bashed in his head, and he went crazy again. All of the incidents, except the one in his childhood, caused him to become paranoid and schizophrenic. Satan would take control of his mind, he would use heroin to kill the pain and speed to stay awake, and he would go in and out of consciousness, lose his memory, and wind up in jail.

Defendant believes he suffered some sort of brain damage from the accident when he was four because he is unable to think like a normal person. He is 60 percent deaf and a real slow thinker. He received no medical treatment for his childhood injury because his mother thought he was lying.

Defendant's father died when he was 8 and his mother remarried when he was 10. His stepfather used to get drunk and beat him with a board. When he turned 18, he was kicked out of the house, and he lived in a field. There, he was abducted by aliens one night and they operated on his brain. Now, he receives Morse code signals from outer space through his right ear. His life of crime began when he burglarized a home for food and was put in the Department of Youth Authority for two years. Since, his life has been pure hell. He works, then gets depressed, loses his job, starts drinking, and winds up getting his head bashed in, which is when Satan takes control of his mind and body. Eventually he ends up in jail for committing crimes without any memory of what he did because of the head trauma and amnesia.

Defendant never received treatment for mental illness while incarcerated. He has been taking Paxil and Risperdal for three years and is now feeling really good. He believes he has mad cow disease and believes he is dying. Also, his little brother and his uncle were diagnosed with paranoid schizophrenia. He hopes to be declared insane so he can go to a prison that has a mental facility.

Referring to a tape recording of a jailhouse conversation with his brother, defendant testified that his statement that he is "just playing the nut routine" was just "a jailhouse slang comment."*fn4 He thinks it is funny and he uses it quite often, but he is not faking it. The psychologists think he is faking it because he has an above-average IQ of about 140, and he majored in psychology. They only interview him when he is on medication, living in a stable environment, and Satan is not in control of his body.

Defendant concluded his statement by saying he felt great for the first time in his life, and if you asked him, he would say he is not crazy right now, but he does know he is the Savior, here to rescue mankind.

On cross-examination, defendant admitted he pled no contest to a charge of robbery in 1984, but he claimed that was when he was hit on the head with a bumper jack and a baseball bat. Defendant would not know if he was convicted of robbery in 1986 because that was after he got hit on the head with the butt of a gun.

At that point, the court told the jury it was taking judicial notice that the prior jury in the case had found defendant had three prior convictions for robbery.

On further cross-examination, defendant claimed he was unconscious during the two robberies in May 2000, but he did not commit any robbery in January 2000. It was after January 15 when the police bashed in his head. He also admitted he wrote a letter to a victim of one of the May robberies in which he said he was sorry for doing what he did, that you cannot do much with an unloaded BB gun, and asked her not to give the letter to the district attorney.

The tape of defendant's jailhouse conversation with his brother was then played for the jury.

On further cross-examination, defendant claimed he had been unable to answer questions the week prior during a competency hearing because he was in shock and on medications, not because he was trying to show he was unable to aid in his defense.

The prosecution then presented its case. Daren Allbee, a deputy with the Sacramento County Sheriff's Department, who was familiar with defendant from the jail, testified defendant had never told him about the Devil talking to him or anything of an unusual nature. Deputy Allbee also testified that he taped the conversation between defendant and his brother.

Deputy Sheriff Michael Daniels testified about defendant's behavior the previous week, before and during the competency hearing.

Dr. Shawn Johnston, a psychologist, testified that he interviewed and tested defendant in March 2003. Dr. Johnston expressed his opinion that defendant has an antisocial personality disorder, but he knew exactly what he was doing when he committed the robberies. Dr. Johnston further testified that defendant is not exaggerating; he is "just plain making it up" and "outright malingering." On cross-examination, however, Dr. Johnston admitted that a person's mental state could change dramatically in three years (which was the time between defendant's crimes and the time of Dr. Johnston's interview with defendant).

Dr. Bruce Ebert, a psychologist and attorney, testified that he interviewed and tested defendant in April 2003. In Dr. Ebert's opinion, defendant does not have any kind of mental disorder or defect that would cause him to commit crimes, but he has various significant problems with antisocial behavior. Defendant knew what he was doing and was capable of distinguishing right and wrong when he committed the robberies. Like Dr. Johnston, Dr. Ebert admitted on cross-examination that it is possible for a person's mental condition to change drastically in three years. Dr. Ebert also testified that Risperdal is a very strong psychotropic medication that is prescribed for people who hear voices.

Following Dr. Ebert's testimony and defense counsel's acknowledgment that he had no further evidence, the prosecution orally moved for a directed verdict of sanity, contending there was no evidence "of sufficient substantiality to support any verdict, whatsoever." In its motion, the prosecution cited People v. Ceja (2003) 106 Cal.App.4th 1071, 131 Cal.Rptr.2d 601, as authority for removing the issue of sanity from the jury.

Defense counsel objected to the motion, asserting that "[b]oth doctors . . . acknowledged that somebody's mental state can change drastically in a matter of a few years" and defendant's "testimony speaks for itself."

The trial court relied on Ceja as authority for granting the prosecution's motion, and after a lengthy series of comments on the evidence presented by the defendant and the prosecution, the court granted the motion on the ground that "defendant has failed to meet the burden of proving by a preponderance of the evidence that he suffered from a mental condition that rendered him incapable of knowing or understanding the nature and quality of his act, or incapable of distinguishing right from wrong in relation to that act."

The court subsequently sentenced defendant to the same sentence as before -- four consecutive terms of 25 years to life and an aggregate consecutive determinate term of 19 years.

II. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn5 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.

Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).

The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.

It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. "Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law.

Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other ...

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