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Murray v. Schriro

United States Court of Appeals, Ninth Circuit

March 17, 2014

ROGER W. MURRAY, Petitioner-Appellant,
v.
DORA SCHRIRO, Warden, Respondent-Appellee

Argued and Submitted, Las Vegas, Nevada September 13, 2012.

As Corrected April 8, 2014.

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:03-CV-00775-DGC. David G. Campbell, District Judge, Presiding.

John E. Charland, The Charland Law Firm, Phoenix, Arizona, for Petitioner-Appellant.

Terry Goddard, Attorney General, Kent E. Cattani, Chief Counsel, Jeffrey A. Zick (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Arizona, for Respondent-Appellee.

Before: Johnnie B. Rawlinson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

OPINION

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RAWLINSON, Circuit Judge:

Petitioner-Appellant Roger Murray (Roger) appeals the district court's denial of his petition for habeas corpus challenging the death sentence imposed following his convictions for murder and armed robbery.

I. BACKGROUND[1]

Dean Morrison (Morrison), age 65, and Jacqueline Appelhans (Appelhans), age 60, operated a store and restaurant in Grasshopper Junction, a rural area outside Kingman, Arizona. See State v. Murray, 184 Ariz. 9, 906 P.2d 542, 553 (Ariz. 1995). On May 14, 1991, between 8:30 and 9:00 a.m., an acquaintance discovered the bodies of Morrison and Appelhans lying face down, in their bathrobes, after being shot multiple times in the head. See id. at 553-54.

At the crime scene, a revolver was found on the couch and a .22 caliber semiautomatic

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rifle was leaning against the wall. See id. at 554. Near the bodies were various .22 and .38 caliber bullets, as well as shotgun pellets. See id . Two weeks after the crime, Morrison's sister found a .25 caliber bullet in the pantry. See id .

In the living room, drawers were pulled out and the contents scattered. See id . The bedrooms and kitchen were also ransacked. See id . A .303 rifle was on a bed and $172 was on a desk chair. See id . Morrison's wallet containing $800 was undisturbed in his pants pocket. See id . The drawer from the cash register in the store had been removed, and the gas register was left on. See id . Morrison's glasses, a flashlight, and a set of keys were found on the patio of the store. See id . In addition, three live .38 caliber bullets were found near the gas pumps. See id .

Detective Lent of the Mohave County Sheriff's Department and another officer found and noted four sets of footprints, other than those of the investigating officers and the acquaintance who discovered the bodies. See id . Two sets of footprints belonged to the victims, a third set was made by tennis shoes, and the fourth set by western boots. See id . A different set of three footprints were made by the tennis shoes, the western boots, and Morrison's slippers. See id . Morrison's footprints indicated resistance by him. See id . At the time of their arrest, Roger was wearing tennis shoes and Robert was wearing western boots, both of which were consistent with the footprints analyzed at the crime scene. See id. at 553-54.

Morrison's autopsy revealed that he had suffered a shotgun blast that shattered his skull. See id . He also suffered two gunshot wounds from a large caliber pistol. See id. at 554-55. A .38 caliber bullet was recovered from the back of his neck and large caliber buckshot was removed from his head. See id. at 555. Found next to Morrison was a fired .38 caliber bullet. See id . Morrison had lacerations and abrasions on his face, elbow, forearm, knee, and thigh. See id . The autopsy revealed that these injuries occurred at approximately the same time as the gunshot wounds. See id .

Appelhans was shot with at least three different guns. See id . A shotgun blast shattered her head. See id . Two .38 caliber slugs were removed from her skull. See id . She also suffered .22 caliber wounds that entered at the back of the neck and exited her face. See id . Aspiration hemorrhaging in her lungs indicated a lapse of time between the initial gunshot and death. See id . The shotgun blast was definitely lethal, and the .38 caliber bullets were also a possible cause of death. See id .

Before the bodies were discovered, police officers found one of Morrison's tow trucks abandoned on Interstate 40 westbound near Kingman, Arizona. See id. at 553. Roger and Robert were arrested on unrelated charges on Interstate 40 eastbound near Holbrook, Arizona. See id . The brothers were driving a Ford sedan with Alabama license plates. See id. at 554. When an officer attempted to stop the vehicle, the brothers fled, driving in excess of eighty-five miles per hour. See id . During their flight, the brothers breached a manned and armed roadblock. See id . The brothers stopped only after their vehicle ran off the road into a wash that impeded further progress. See id . Robert, the driver, threw a .38 revolver containing four bullets from the car. See id . Roger discarded a loaded .25 semiautomatic pistol. See id . Additionally, Robert had two spent shotgun shell casings in his pants pocket. See id .

A loaded twelve gauge sawed-off shotgun and shotgun shells were discovered inside the car. See id . A checkered cushion

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cover that matched the cushion on Morrison's couch contained rolled coins stamped " Dean's Enterprises, Grasshopper Junction, Kingman, Arizona, 86401." Id. A blue pillow case contained approximately $1400 in coin rolls and $3300 in cash. See id . Gloves and a hotel receipt were also in the vehicle. See id . Records from the hotel indicated that the brothers had listed a Ford sedan, the description of which matched the vehicle they were driving at the time of their arrest, on the hotel registration card. See id . Officers retrieved from the sedan an atlas with circles around the locations of two rural establishments, the Oasis and Grasshopper Junction, which were not otherwise indicated on the map. See id .

Keys found in Robert's pants pocket were later identified as the keys to a pickup truck on Morrison's property. See id . A scanner and connecting knob in the sedan fit an empty bracket in the abandoned tow truck. See id . It was determined that the casings found at the crime scene and in Robert's pocket were fired from the guns possessed by Roger and Robert. See id. at 555.

Human blood and tissue were found on Robert's shirt, on Roger's pants, and on the cushion cover. See id . The blood on Roger's pants could have come from either victim or from Robert, but not from Roger. See id . The blood on Robert's shirt was consistent with that of either victim, but not with the blood of Roger or Robert. See id . The blood on the cushion cover could have come from Appelhans, but not from Morrison or the Murrays. See id . No DNA tests were conducted. See id .

The brothers were indicted for the first degree murders of Morrison and Appelhans and for the armed robbery of Morrison. See id . A jury convicted them of all charges. See id . The first degree murder verdicts were unanimous for both premeditated murder and felony murder. See id . After separate sentencing hearings, the trial court found that the state had proven three aggravating circumstances as to each defendant: the murders were committed for pecuniary gain, as defined in A.R.S. § 13-703(F)(5); [2] the murders were especially heinous, cruel or depraved, as provided in § 13-703(F)(6); [3] and the defendants committed multiple homicides, as described in § 13-703(F)(8).[4] See id . Finding the mitigation evidence insufficient to outweigh the aggravating circumstances, the trial court denied leniency for both defendants and imposed a sentence of death. See id . The Arizona Supreme Court affirmed the convictions and sentences. See id .

A. Direct Appeal - Robert and Roger

On October 26, 1995, the Arizona Supreme Court affirmed the convictions and sentences. See id. at 553. On direct appeal,

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the brothers raised five issues: (1) jury selection; (2) pretrial motions; (3) evidentiary issues; (4) motion for acquittal; and (5) special verdict form. See id. at 555-65. Roger raised five additional trial issues: (1) jury sequestration; (2) jury instructions; (3) request for mistrial; (4) prosecutorial misconduct; and (5) visitation of the crime scene. See id. at 565-69. In addition, Roger raised three sentencing issues: (1) objective standards and prosecutorial discretion; (2) independent review; and (3) aggravating factors. See id. at 569-71. Roger also raised issues related to the following statutory mitigation factors: (1) capacity to appreciate wrongfulness of conduct or conform conduct to requirements of the law, (2) relatively minor participation; (3) age; (4) duress; and (5) no reasonable foreseeability that his conduct would create a grave risk of death. See id. at 573-77.

The Arizona Supreme Court also addressed the following nonstatutory mitigation factors that Roger raised during trial: (6) dysfunctional childhood and family relations; (7) medical treatment; (8) remorse; (9) drug and alcohol use; and (10) mental health. See id. at 577-78. For the first time on direct appeal Roger urged as mitigation factors: (11) education; (12) residual or lingering doubt; (13) felony murder instruction; and (14) cooperation. See id. at 578.

1. Jury Selection

The original master jury list used was composed of a one-and-a-half-year-old driver's license list in violation of Arizona law. See id. at 555. Just days before trial was scheduled to begin, the trial court ordered that a new jury list be created using both the old driver's license list and a list of registered voters. See id . The jury commissioner advised the trial court that the new list would generate adequate potential jurors by the date of trial, even though the deadline to respond was beyond the date trial was scheduled to begin. See id . Robert and Roger argued that (1) the truncated time to respond to the jury questionnaire resulted in fewer potential jurors from more remote portions of the county; and (2) the one-and-a-half-year-old driver's license list resulted in fewer young prospective jurors. See id . Robert and Roger contended that these infirmities denied them a jury of their peers because they hailed from a small, rural area in Alabama and were young at the time of trial. See id. at 555-56. The Arizona Supreme Court concluded that Robert and Roger failed to establish the lack of a fair and impartial jury or prejudice. See id . The brothers failed to show that they were denied the right to have jurors selected from a fair cross-section of the community, or systematic exclusion of any discrete segment of the community. See id. at 556. The court noted that " failure to follow statutory procedures is harmless, absent some separate showing of prejudice or discrimination . . . ." Id.

The brothers also contended that the jury commissioner's use of standardless exclusions violated their constitutional rights. See id . However, the Arizona Supreme Court determined that the jury commissioner, within her discretion, excused and notified potential jurors in accordance with state law. See id. at 557. The court concluded that the brothers were not denied their right to a jury drawn from a fair cross--section of the community, because the criteria used were neutral and did not " constitute systematic exclusion." Id. (citation omitted).

Finally, Robert and Roger asserted a Batson [5] violation when the prosecution

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used peremptory challenges to dismiss the only two Hispanic potential jurors. See id. at 557-58. The Arizona Supreme Court rejected the Batson challenge, concluding that the trial court's acceptance of the prosecutor's race-neutral explanation for striking the Hispanic jurors was not an abuse of discretion. See id .

2. Pretrial Motions

a. Severance

The Arizona Supreme Court concluded that the trial court did not abuse its discretion in declining to sever the brothers' cases. See id. at 558. The court noted that " joint trials, are the rule rather than the exception . . . ." Id. (citation omitted). The court also pointed out that the crimes were so intertwined that it would have been virtually impossible to sever the evidence, because the evidence implicated the brothers equally. See id . The jury questionnaire screened out prospective jurors who would have trouble segmenting the evidence, and the trial court instructed the jury to consider the evidence separately against each defendant. Under these circumstances, the Arizona Supreme Court found no prejudice. See id .

b. Change of Venue

The Arizona Supreme Court determined that Robert and Roger failed to prove presumed or actual prejudice based on the denial of their request for a change of venue due to pretrial publicity. See id. at 559. The Court emphasized that the brothers failed to show any pretrial publicity that was so outrageous that the trial was " utterly corrupted." Id. (citation omitted). Any security measures were largely effectuated when jurors were unlikely to be present. See id . Only prospective jurors who pledged to decide the case solely on the evidence were empaneled, and empaneled jurors were repeatedly admonished to avoid media coverage. See id . After reviewing this record, the Arizona Supreme Court affirmed the trial court's denial of the requested venue change. See id .

c. Hybrid Representation

After noting that there is no right to hybrid representation (some combination of self-representation and counsel), the Arizona Supreme Court held that the trial court acted within its discretion when it denied the brothers' requests for hybrid representation in the absence of irreconcilable conflict or incompetent counsel. See id. at 560.

d. Library Access

Citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Arizona Supreme Court held that because the brothers were provided with counsel throughout the proceedings, their constitutional right to access the court was afforded, regardless of whether they were able to personally access legal materials. See id. at 561.

3. Evidentiary Issues

The brothers challenged the admissibility of crime scene photographs and footprint comparisons, and argued that the court improperly prevented them from impeaching a witness. See id. at 561-64. The Arizona Supreme Court determined that the challenged photographs were relevant to the case and were not unduly inflammatory. See id. at 561-62. The court also rejected the challenge to footprint comparisons made by a detective, holding that the trial court did not abuse its discretion in qualifying the detective as an expert where the detective had extensive tracking experience in criminal investigations and had previously been qualified as an expert in state and federal court.

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See id. at 562-63. Any issue of proper methodology " went to the weight rather than admissibility." Id. at 563 (citation omitted).

Finally, the brothers contended that the trial court impermissibly precluded impeachment of the detective who testified regarding the footprint evidence. See id. at 563-64. During cross-examination, the detective admitted that he had previously lied under oath. See id. at 563. After hearing argument in chambers, the trial court determined that the relevant extrinsic evidence of the detective's truthfulness (or lack thereof) was minimally probative, but far outweighed by its prejudicial and confusing nature. See id . The trial court was of the view that admission of the extrinsic evidence to impeach the detective would essentially result in the trial of a collateral ...


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