*1 GALINDO, Eddie Petitioner-Appellant, set forth applied standard to be to this issue. The Arizona statute is therefore invalid YLST, Warden; Eddie Attorney General violating rights Mitchell Blazak’s to due California, of the State of
process and to free from be cruel and un- Respondents-Appellees. punishment usual Eighth under the No. 90-56131. Fourteenth Amendments. CLAIM NO. 36: MANDATORY IMPOSI- United States Appeals, Court of TION OF CAPITAL PUNISHMENT Ninth Circuit. The Arizona requires statute capital Argued and Submitted March 1992.
punishment imposed upon be finding Aug. Decided 1992. one or more aggravating factors that are outweighed by mitigating factors.
The absence of the discretion to impose a
sentence other than death violated Mitchell rights
Blazak’s process to due and to be
free from punishment cruel and unusual
contravention Eighth and Four-
teenth Amendments.
CLAIM NO. 37: RETROACTIVE APPLI-
CATION OF SENTENCING STATUTE
The Arizona sentencing capital statute in
effect at the time of commission of the
underlying offenses was subsequently held
to be invalid by Supreme the Arizona result,
Court. As a imposed the state court upon
sentence based passed a statute
1978 to offenses committed
Such application retroactive law
violated Mitchell Blazak’s free application laws, post ex facto to due and to be from cruel and punishment
unusual in contravention of Ar-
ticle Section Clause 1 of the Constitu-
tion, as Eighth well as the and Fourteenth
Amendments. *2 stomach.1 into his wife’s poked it
and then he did fired; claims Galindo gun The off gun went and that trigger pull the police admitted He later accidentally. His gun malfunctioned. knew that he appeals and this throughout his state claim gun he know did proceeding it did way that in the could malfunction shot. his wife was The first errors. two claims Galindo the state- excluded court state Cal., peti- for Angeles, Ivens, Los Gail after officer of his wife ments tioner-appellant. her, shot who shooting. asked When Roeschke, F. Donald The “My Pollack husband.” replied, Carol Mrs. Galindo Cal., for Gen., Angeles, Los Attys. accident?” Deputy asked, it an “Was then officer answered, She respondents-appellees. “Yes.” Mrs. Galindo She questions. any further not answer trial court later. hours died several were statements Mrs. Galindo’s found immediately of a sense under not made REINHARDT Before: fall un- death, did not and thus impending Judges; and FERNANDEZ, Circuit exception to “dying declaration” der the Judge.* CROCKER, District the state- It excluded hearsay rule. ment. PER CURIAM: of error surrounds
The second chose ruling INTRODUCTION if Galindo trial court’s by a impeached fifteen he testify, court’s the district appeals Eddie Galindo for man- felony conviction prior year old habeas writ of for petition of denial re- appeals court of state slaughter. The Cali- relief seeks corpus. Galindo instructing remanded, the trial versed de- for second conviction court state fornia People hearing under hold court contends Galindo murder. gree Collins, 42 Cal.3d a fair trial of deprived was (1986). P.2d 173 hear- exculpatory exclusion hearing admis- held Collins he contends which The trial court say evidence of the victim. what Galindo dying declaration to determine as a camera sible right ruled that The court his fundamental about. contends testified He manslaughter denied though own behalf was testify in his he could be its dis- admissible, exercised it would have court determined manslaughter con- felony convic- prior to exclude impeached with cretion testi- re- he did not After ruling, purposes. After tion viction. and Galindo’s evidence viewing the trial fy. We affirm. concluded court testimony, the trial
camera probability no reasonable FACTS that there was BACKGROUND had heard if the result a different de- guilty second found Galindo court testimony. The state death with in connection gree murder appeal affirmed. his wife were Galindo his wife. reme- exhausting After clos- ato bedroom went Galindo arguing. for writ petition dies, brought it, Galindo shotgun, loaded a sawed-off et, removed only trying * he was maintains that Crocker, 1. Galindo States United Senior M.D. Honorable wife, inten- he never had and that scare Califor- District of Judge Eastern for the District killing her. tion designation. nia, sitting corpus in the court. government habeas district is correct. In Luce v. United States, petition. court denied the district timely appeal.2
filed a
(1984),
held that in
preserve
order to
objection
an
*3
to a trial
ruling
prior
that a
felony
DISCUSSION
conviction
admitted,
could be
a defendant
A. The “dying declaration”
actually
must
testify at trial. Galindo did
so,
not do
thus waived
may
The state
not exclude evidence
might
constitutional
claim he
otherwise
when to do so
deprive
the defendant
have had.
of his Sixth and Fourteenth Amendment
Rushen,
rights. Perry
v.
1447,
713 F.2d
We,
course,
understand that Luce denied,
(9th Cir.1983),
cert.
1450
469 U.S.
laid down as a
procedure,
federal rule of
838,
137,
105
(1984).
S.Ct.
puted that
stand.
ruling cannot
erroneous
an
evi-
such
introduced
itself
prosecution
wife:
finger
place
not even
he did
dence
I.
claimed
trigger.
gun’s
on
knew,
murder
before
colleagues uphold Galindo’s
My
only
stomach,
of Luce
authority
his wife’s
the sole
gun into
conviction
poked
his action
past,
States,
in the
“misfired”
United
hu-
for
disregard
inapplicable
(1984).
“wanton
83 L.Ed.2d
demonstrated
finding
to base
upon which
a basis
directly
sufficient
and as
life”
both
man
to that
regard
With
for murder.
non-constitutional.
error
*4
officer
a
contention,
jury heard
the
eviden-
federal
First,
established a
Luce
his
shot
Galindo
that, shortly after
testify
crimi-
only to
applicable
tiary rule
federal
the
that
he knew
wife,
that
admitted
he
convict-
was
defendants,
Galindo
while
nal
the
What
on occasion.
“misfired”
had
gun
by
governed
trial
in a
state
ed in
by
meant
Galindo
hear what
not
jury did
41, 105
id. at
See
evidentiary rules.
state
gun
that the
knew
that he
statement:
that
Supreme
the California
As
at 463.
S.Ct.
trigger
the
when
fire
did not
sometimes
rule of
noted,
is a
‘'Luce
expressly
Court
known
never
had
that he
pulled, but
the
that
Su-
procedure
criminal
federal
not
trigger
the
gun to fire
to its advis-
adopted pursuant
preme Court
undoubtedly
explanation
That
pulled.
binding on the
hence is not
ory power, and
impact on
major
had a
could
378,
Collins, 42 Cal.3d
People v.
states.”
indeed,
jury
had the
decisionmaking;
jury’s
173,
903,
P.2d
899,
722
385,
Cal.Rptr.
228
the evidence
explanation,
accepted that
in Luce
rule established
The
(1986).1
177
insuffi-
have been
against Galindo
here.
applicable
not
therefore
a mur-
support
to
of law
matter
as a
cient
apply
does
Second,
rule
Uwce-type
a
n. 5.
1434
at
See
conviction.
der
infra
occurred
trial
his
case because
to Galindo’s
explana-
not hear
in Cali-
a rule
such
the creation
before
him
informed
judge
trial
tion
indicates
Luce
It is true that
fornia.
into
put
testified,
state could
if he
one
similar to
adopt a rule
may
state
convict-
had been
the fact
evidence
by
courts
Luce.
in the federal
established
of a bar-
a result
manslaughter
ed
1984,
10,
on December
was decided
Luce
fif-
almost
occurred
brawl
room
adopted
Court
Supreme
and the
wife.
of his
death
to the
years
teen
11,
August
on
Luce-type rule
a similar
others,
and
prosecutors
to
is well-known
As
so,
People
it did
1986.
fre-
evidence
of such
introduction
899,
378, 228
Collins, 42 Cal.3d
case.
defendant’s
devastating
ato
quently
only
so
explicitly did
(1986),it
173
722 P.2d
fact,
up
gave
being aware of
Galindo,
388,
id.,
at
42 Cal.3d
See
prospectively.
tri-
Unfortunately, the
testify.
to
right
179-
905-06,
at
P.2d
722
Cal.Rptr. at
228
fact,
Cali-
wrong: on
judge
al
early-De-
held
trial was
180. Galindo’s
I unani-
colleagues,
courts, my
fornia
1984,
before
year-and-a-half
cember
preju-
drastically
error
agree.
mously
court of
Thus, as the California
Collins.
in-
wrongfully
defense:
diced
appeal,
direct
on Galindo’s
appeals held
right
him waive
duced
apply
Luce-type
does not
rule
California’s
explanation
only innocent
present
case.
retroactively to Galindo’s
fact—the
inculpatory
critical
otherwise
Galindo
the time
Because at
based
prosecution
which
fact
in order
required
“was
wrongfully
short,
error
In
case.
improper
a claim
appeal
preserve
his federal
to surrender
caused
Tennessee,
U.S.
406
(distinguishing Brooks v.
distinguished oth-
Indeed,
explicitly
Luce itself
1891,
(1972),
358
L.Ed.2d
32
92 S.Ct.
basis
controlling
on the
cases
erwise
v,
Portash,
S.Ct.
99
440 U.S.
Jersey
New
defendants.
between
difference
(1979)).
59 L.Ed.2d
at 463-64
Luce,
469 U.S.
See
conviction,”
impeachment by prior
it would court or it is wrenched from reluctant
“intolerable”
“fundamentally]
by
defendant
threatening him with drastic
apply Luce-type
rule to his
consequences
[un]fair”
that the
may
not law-
appeal.
important,
Id.2 More
we are
fully impose.
Brady
States,
See
v. United
by
bound
the state court’s determination
742, 748,
90 S.Ct.
permits
that state
appeal
law
Galindo to
L.Ed.2d
(noting
that the defen-
Steppe,
issue. See Zal v.
dant must be made aware “of the relevant
(9th Cir.1992)
(holding
likely
circumstances and
consequences” of
although
Walker v. Birmingham, 388 a
waiver
order
qualify
as an intelli-
U.S.
ing waiver to search invalid when individu-
implicitly
al was
illegal
threatened with
II.
consent).
detention if he did not
ques-
merits,
As to the
I
hold
that Galin-
tion whether a waiver
aof
federal constitu-
rights
do’s federal constitutional
were vio-
right
tional
question
federal,
is valid is a
right
lated when he
his
surrendered
to tes-
state,
Here,
law.
the federal standard
tify in his own
on the
defense
basis of an was not met: because Galindo’s “waiver”
unlawful threat
to inform the
of a
right
of his
to testify
knowing,
was not
prior manslaughter
if
conviction
he testi-
intelligent,
voluntary,
it was constitu-
right
testify
fied. The
to
in one’s own tionally
under
invalid
federal law.
defense is fundamental. See Rock v. Ar-
The fact
that
the state could have
kansas,
44, 49-53,
2704,
483 U.S.
107 S.Ct.
adopted
Luce-type
a
rule and warned a
(1987) (noting
97 L.Ed.2d. 37
defendant
consequences
of its
without vio-
historical
substantial
foundation and its ba-
lating his
rights
constitutional
does not
Fifth,
Sixth,
sis
several clauses of the
mean,
majority appears
believe,
as the
to
Amendments).
and Fourteenth
A surren-
that the state’s violation was one of state
right
der of so
a
knowing,
basic
must be
only.
law
There are a
voluntary,
number
actions a
intelligent.
See White v.
White,
may
state
take
287,
(9th Cir.1990);
violating a defen-
925 F.2d
292
without
Goldsmith,
385,
(9th
rights
dant’s federal
v.
F.2d
constitutional
if a
906
391
Cuffle
Cir.1990);
provides
state statute or rule
see also
for them that
United States v. John-
son,
1065,1075 (9th Cir.1987)(not-
rights
820 F.2d
would nevertheless violate
if
those
ing
taken in
right
that a
waiver of
defendant’s
absence
such state law.
testify
“knowing
example,
to
must
For
be
volun-
a
convicted of
defendant
lar-
valid).
tary”
ceny may
to be
A waiver
constitutionally
cannot meet
be
incarcerated
that standard if it is
years
misinforma-
for 20
if the applicable
based
state statute
provided
tion
a
by
provides
crucial
nature
for such a term.
it is a
expressed
2. We have
a
view.
challenge
similar
See United
3. The state does not
Galindo’s claim
Givens,
(9th Cir.),
right
that his
States v.
cert,
578
surrender of
constitutional
to
F.2d
testify
denied,
directly
in his own defense resulted
the state’s threat to
introduce into evidence the
(holding
L.Ed.2d 304
that it would be
prior manslaughter
record of his
conviction.
"grossly unfair" and would "wreak a substantial
challenge
Nor does—or could—the state
inequity"
apply
retroactively).
to
finding
state court’s
that
state was not free
lawfully impose
consequence.
to
“funda
be
Cir.1984) may well
(9th
the federal
law and
state
of both
—
violation
if
unfairness
Even
mentally unfair”.
to incarcerate
for a state
Constitution
law, a
period
20-year
state
for a
from a violation
larceny
results
for
defendant
provides
such un
means of
by
statute
applicable
obtained
if the
by
colleagues err
My
term.
reversed.
10-year
be
See
only a
should
process
fair
merely because
concluding that
672;
Anderson
see also
Hines,
constitutionally
Galin-
burdened
Cir.1977)
(5th
447, 451
F.2d
Maggio, 555
defense
in his own
testify
right to
do’s
grant
be
should
(noting
habeas relief
rules, his constitutional
enacting certain
state’s evi-
violation
ed “where the
the state
not violated
were
of funda
in denial
results
dentiary rules
of such
right in the absence
burdened
Estelle, 547
fairness”);
Woods
mental
Enomoto, 658
See,
e.g., Hines
rules.
denied, 434
Cir.),
(5th
cert.
F.2d
Cir.1981)(holding
(9th
667, 672
F.2d
54 L.Ed.2d
U.S.
right
denied
who
defendant
clause
process
due
(1977)(noting that the
twenty-six preemptory
half
exercise
law “error
a state
violated
law
under
allowed
challenges he was
deny fundamental
magnitude
such
cogniza-
a federal
trial”). The due
the criminal
fairness
the fact
despite
on habeas
ble
requires
process clause
that a defen-
require
does
Constitution
be that
defendant
criminal
given
Be-
challenges).
twenty-six
given
dant
a criminal
due.
If
he is
process which
to waive
induced
cause
deprived of
fun
unlawfully
defendant
testify
right
legally enti
ishe
to which
right
damental
unlawful
by the trial
defense
own
be
without
here,
tled—
to introduce
prosecutor
permit
threat
*6
con
fifteen-year-old
impeached with a
ing
constitu-
conviction,
is
that waiver
his
likely
here,
more
if,
it is
as
viction—and
federal law
of
a matter
tionally
invalid
the
affected
deprivation
not that
than
could have
the state
despite the fact
verdict,
that was due
the
jury’s
it
constitutionally had
rule
adopted such
is entitled
defendant
and
Caputo
given
the
not
was
to do so.
chosen
Cf.
(2nd
Cir.
982-84
Henderson,
new trial.
to a
guilty
defendant’s
that a
1976) (holding
Luce bars
colleagues conclude
My
is hence
knowingly made and
is not
plea
he
and that
of Galindo’s
consideration
to re-
subject
constitutionally invalid
They are
of state law.
only
issue
an
raises
upon errone-
if it is based
on habeas
versal
inapplica-
counts:
on both
incorrect
by the
provided
information
sentencing
ous
claim both
a federal
raises
and Galindo
ble
judge).
“knowing,
not exercise
he did
unlawfully
only
was
Finally, Galindo
of his
voluntary” waiver
intelligent, and
constitu
fundamental
his
to waive
induced
testify in his
right to
defense,
his own
testify in
right to
tional
the state’s un-
and because
defense
own
into waiv
thereby coerced
he was
but
right
of that
exercise
on his
burden
lawful
he
deny that
to
opportunity
only
ing his
Constitution.
the United States
violated
ac
he was
of which
crime
the
committed
evi
crucial
the
explain that
to
cused
ex
relied was
the
which
upon
III.
dence
essence,
In
inculpatory.
culpatory and
conceding
courts, while
in
improperly
erroneously and
erred, upheld Galindo’s
the trial
present
right
to waive
duced
the error was
ground
on the
crime
to the
with
defense
only effective
correct, then even
they are
If
“harmless”.
proceed
Such
charged.
he
which
waiving or
into
coerced
if Galindo
improper
a defendant
which
ing
in—one
lawfully his
to waive
failed
federal constitutional
deprived
ly
defense, may
testify in his own
defense, see United
on a
put
right
his convic-
to a reversal
691, not
entitled
be
Contento-Pachon,
F.2d
States
If, however,
tion on
nan,
habeas.4
they
J.,
are
concurring
part
in
dissenting
in
wrong, then Galindo is entitled to
rever-
(“For
part)
being
human
accused of an
sal of his conviction on habeas.
explanation
offense an
why
he or she
acted
important....
The first step in
The California
plainly
courts were
making a
explain
defense is to
why
unquestionably wrong
they
held that
did.”).
defendant did what he
testimony
Galindo’s
things
Few
not have
changed
are more damaging
jury’s verdict: not
my
defendant than his
even
colleagues defend
failure
First,
that result
tell the jury
innocent;
here.
that he is
testimony
thus,
Galindo’s
might
have successful-
few
are more important than
ly rebutted
incriminating
the most
evidence
right
to take the
in
stand
one’s own
against him.
jury
heard a
offi-
presence
defense. Galindo’s
on the witness
testify
cer
that Galindo told him that he
might
stand
well have convinced
jury
poked
gun
into his wife’s stomach de-
that while he was criminally responsible for
spite the fact that he knew that it often
wife,
death of his
he should not “misfired”.
testimony
The officer’s
re-
fact,
convicted murder.
In
it would be a
garding Galindo’s statement was
crucial
most unusual case indeed in
dep-
which the
prosecutor
state’s case: the
referred to
rivation
aof defendant’s right
the statement repeatedly
closing
in his
ar- his own defense could properly be classi-
gument
point
and at one
stated that he felt
fied as harmless error.
that a
prosecution
successful
of Galindo
Here,
explanation
would have
“require”
would
introduction of that evi-
undoubtedly been vitally important in the
dence.
explanation of
state-
jury’s determination whether the elements
ment—that he
gun
knew that
murder,
law,
under California
had been
sometimes not fire but had no indication
In
established.
order to convict Galindo of
whatsoever that
it would spontaneously
murder,
jury
required
fire—would
to find
have been of
impor-
immense
he actually
tance
knew that his
refuting
action
otherwise-incrimina-
involved
ting
“a high degree
nature of that
statement.
If
probability
that it will
him,
unlikely
believed
it is
that would result
death”. People
Dellinger,
guilty
found him
murder.
Cal.3d
P.2d
(emphasis added)
*7
Second,
testimony
Galindo’s
could—in-
(quoting
citing
sources).
and
numerous
deed, almost undoubtedly
would—have
Galindo’s statement that he knew that the
major impact
jury.
the
There were
gun “misfired” was the sole evidence relat-
two
shooting:
witnesses to the
Galindo and
ing to his
knowledge
actual
likely
of the
(and
wife.
latter was
jury
dead
consequences of his acts—the sole evidence
permitted
not
to learn of
exculpa-
that he
“high
knew that there was a
degree
tory
shortly
comment
made
she
after the
of probability” that his conduct would
shooting)
(as
and the former
jury
far as the
cause his wife’s
knew)
Unexplained,
death.
Gal-
explain
refused to
the circumstances
indo’s
situation,
highly compel-
of her
statement constituted
death.
In such a
it is
ling
entirely
inculpatory
evidence.
to believe
if
reasonable
that Galin-
do’s silence
had heard
instilled
the minds
Galindo’s explanation
of the
jurors
statement,
quite
the erroneous belief
it is
that he had no
conceivable that
it
defense
guilty
and that he was
of
crime would
not have found that he “actually
charged.
with which he was
See Zal v. knew” that his
“high
action involved a
de-
(9th
Steppe,
(Noo-
Cir.1992)
at
gree
probability”
that it would result in
deprived
whether,
4. Because
had,
of his constitu-
need to determine
if
errors
proceeding,
tional
at the
re-
reversal is
at
pro
trial
would
made
have
quired if
beyond
cannot
establish
ceeding "fundamentally
and
unfair”
hence re
testimony
reasonable doubt that his
not
quired
per
reversal
se. See
Fulmi
Arizona
changed
jury’s
Chapman
have
verdict. See
—nante,
U.S.-,-,-,
18, 24,
California,
1246, 1256-57, 1264-65,
courts, any standard —and under harmless deemed under the harmless it was certainly FLETCHER, POOLE Before: That standard. error Judges. BRUNETTI, Circuit adopt a Luce- but failed irrelevant. plainly rule type ORDER stand. should murder conviction of parties stipulation Pursuant Accordingly, dissent.6 I dismissed appeal this July filed own its party bear each prejudice, with remand to We attorneys’ fees. costs whether to consider district judgment.
vacate *8 at 281 P.2d Cal.Rptr. id. at act the mere Indeed, may well be 5. evi- that that magistrate found (noting stomach shotgun individual’s in an sticking a second to establish not sufficient provide the foundation dence legally insufficient murder). certainly, should degree a murder conviction: acknowledge that case when the defendant trigger. finger on the placed a never statement wife’s exclusion spontaneously shotgun fire Given only unlikely prob- shooting an accident was that the situation, isit rarely in such exceedingly How- magnitude. ably error of matter, action, a factual convic- ever, Galindo's reverse I would probabili- degree "high involves inherently issue, de- I need tion on People v. Compare resulting in death. ty” of whether I decide question; nor need cide that Watson, Cal.3d alone, statement, standing of that the exclusion charge degree (second murder P.2d permissible doubt. reasonable beyond a harmless was However, percent with .23 individual combined, there are errors two per hour 84 miles drove level alcohol blood were errors that the certainly be doubt no can barely light, zone, through reda ran m.p.h. not harmless. accident, slammed then another avoided occupants). But car, killing its cf. another into