Michael E. HARRIS, Petitioner-Appellant, v. Robert WRIGHT, Superintendent, Clallam Bay Correction Center, Respondent-Appellee.
No. 94-35365
United States Court of Appeals, Ninth Circuit.
Decided Aug. 19, 1996.
93 F.3d 581
We thus agree with the district court that Hartford breached its duty to defend under these policies. We do not necessarily agree with the district court‘s broader conclusion, however, that allegations of misappropriation of a customer list, because it comes within common law concepts of unfair competition, can alone trigger coverage under the language of these policies pertaining to “misappropriation of advertising ideas.” See Sentex Sys., Inc., 882 F.Supp. at 942-43. Because we conclude that ESSI‘s suit raised a potential for liability under the offense of “misappropriation of advertising ideas,” we need not consider whether ESSI‘s suit raised a potential for liability under any other enumerated offenses. See id. at 944-45.
AFFIRMED.
Christine O. Gregoire, Attorney General, Paul D. Weisser, Assistant Attorney General, Olympia, Washington, for respondent-appellee.
Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges.
KOZINSKI, Circuit Judge.
The principal question presented is whether a fifteen-year-old murderer may be sentenced to mandatory life imprisonment without possibility of parole.
I
One afternoon in 1987, Michael Harris, age 15, and Barry Massey, age 13, went to Paul Wang‘s store to rob it. ER at 8, 10, 13 (Washington Superior Court Memorandum Decision). Along the way, the two discussed how to use the pistol Harris had brought along. Massey proposed that Harris simply walk in and shoot Wang; instead, Harris gave Massey the gun. Id. at 14. Shortly thereafter, Massey and Harris entered the store and Massey shot and stabbed Wang to death. Id. at 13-15. The two then cleaned out the cash register, took assorted merchandise and left. Id. at 14-15. Harris was arrested later that day. After he was advised of his rights, and without asking to see a lawyer or anyone else, he confessed. Id. at 12-17.
The Washington Juvenile Court declined jurisdiction, id. at 1-6, and Harris was convicted of aggravated first degree murder, id. at 27. The state didn‘t seek death and Harris received the only other sentence Washington law allows for his crime: life imprisonment without possibility of parole. Id. at 34; see
Harris‘s petition raised the two constitutional challenges that are now before us: He
II
We first address Harris‘s Eighth Amendment challenge. The amendment has two possible applications here. A punishment is unconstitutional if the “evolving standards of decency that mark the progress of a maturing society” soundly reject it. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (Opinion of Warren, C.J.). The Eighth Amendment also bars, under certain circumstances, punishments that are grossly disproportionate to the crime being punished. See Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S.Ct. 2680, 2702-03, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992) (Justice Kennedy‘s Harmelin concurrence was holding of the Court).3
A
To establish that evolving standards of decency preclude his punishment, Harris bears the “heavy burden,” Stanford v. Kentucky, 492 U.S. 361, 373, 109 S.Ct. 2969, 2977, 106 L.Ed.2d 306 (1989), of showing that our culture and laws emphatically and well nigh universally reject it. See id. at 369-71, 109 S.Ct. at 2974-76.4 The most important indicators of the nation‘s penal sentiments are the enactments of its elected legislatures. See id. at 370, 109 S.Ct. at 2975.
At very least, then, Harris bears the burden of proving a strong legislative consensus against imposing mandatory life without parole on offenders who commit their crimes before the age of sixteen. Harris manages to cite5 two states whose laws explicitly preclude mandatory adult sentences in general or life without parole in particular for crimes committed below sixteen, two state high courts that prohibit mandatory life terms for eighteen. The subsection he cites has nothing to do with that subject. Tennessee law apparently allows adult trials for certain major offenses, including murder, committed below the age of sixteen, see
B
An otherwise valid, if severe, punishment may nonetheless be unconstitutional when paired with a sufficiently minor crime. See Harmelin, 501 U.S. at 996-98, 111 S.Ct. at 2702-03 (Kennedy, J., concurring). Disproportion analysis, however, is strictly circumscribed; we conduct a detailed analysis only in the “rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Id. at 1005, 111 S.Ct. at 2707 (Kennedy, J., concurring).
Harris admits, as he must, that his case couldn‘t have passed the threshold had he committed the crime when he was one year older. Harris was sentenced to a prison term for committing aggravated first-degree murder, the most serious crime under Washington law. The Supreme Court has declared that life imprisonment without possibility of parole for possession of 24 ounces of cocaine raises no inference of gross disproportionality. See id. at 1004-05, 111 S.Ct. at 2706-07 (Kennedy, J., concurring). A fortiori, it would raise none here. See also Solem v. Helm, 463 U.S. 277, 290 n. 15, 103 S.Ct. 3001, 3009 n. 15, 77 L.Ed.2d 637 (1983) (“no sentence of imprisonment would be disproportionate” to felony murder).
Relying on the plurality opinion in Thompson v. Oklahoma, 487 U.S. 815, 833-34, 108 S.Ct. 2687, 2698, 101 L.Ed.2d 702 (1988) (Stevens, J.) (Constitution recognizes “the special mitigating force of youth“), Harris argues that his tender age made him constitutionally less culpable and that his crime is, thus, less weighty than it would be otherwise. In essence, he invites us to decide that his sentence would be grossly disproportionate to a fifteen-year-old‘s limited culpability for any crime. Justice O‘Connor‘s concurrence in Thompson rejected that notion, refusing to “substitute our inevitably subjective judgment about the best age at which to draw a line ... for the judgments of the Nation‘s legislatures.” See Thompson, 487 U.S. at 853-54, 108 S.Ct. at 2708-09 (O‘Connor, J., concurring). Under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993-94, 51 L.Ed.2d 260 (1977), Justice O‘Connor‘s concurrence is the holding of Thompson, since it was the “position taken by those Members who concurred in the judgment[] on the narrowest grounds.” Washington‘s legislature has decided that the appropriate punishment for anyone tried and convicted as an adult for aggravated murder is life in prison. The Constitution gives us no power to reverse its judgment.
Harris argues that, at very least, we must draw an inference of gross disproportionality when society imposes its “penultimate” punishment for a crime committed at fifteen. But, capital punishment aside, there‘s no constitutional (or rational) basis for classifying punishment in distinct, ordinal categories. As the Supreme Court noted in Harmelin, 501 U.S. at 996, 111 S.Ct. at 2702, if we put mandatory life imprisonment without parole into a unique constitutional category, we‘ll be hard pressed to distinguish mandatory life with parole; the latter is nearly indistin-
C
Harris also argues that the Washington statute under which he was sentenced is unconstitutionally vague because it doesn‘t specify a minimum age for its imposition. In Thompson, Justice O‘Connor refused to presume that Oklahoma‘s legislature intended to allow the death penalty for murders committed by a fifteen-year-old where its statutes didn‘t explicitly set any minimum age for capital punishment. See Thompson, 487 U.S. at 856-59, 108 S.Ct. at 2710-12. She premised her opinion, however, on strong evidence of a national consensus against imposing the death penalty for crimes committed before the age of sixteen, and on the special scrutiny the Constitution accords capital punishment. See id. at 856-58 & n. *. Under the circumstances, “there [was] a considerable risk that the Oklahoma Legislature either did not realize that [allowing fifteen-year-olds to be tried as adults] would have the effect of rendering fifteen-year-old defendants death eligible or did not give the question serious consideration,” id. at 857, 108 S.Ct. at 2711, and that risk had constitutional importance.
Here, there‘s no evidence of a consensus against mandatory life without parole for fifteen-year-olds, and we don‘t subject life imprisonment without parole to the same searching scrutiny we apply to capital punishment. See Harmelin, 501 U.S. at 994-95, 111 S.Ct. at 2701-02. Where the question isn‘t life or death, the Constitution doesn‘t require the state to prove its legislature contemplated each specific application of clearly phrased, general laws.
III
Harris next argues that his confession should have been excluded because the police took it before notifying his father that he had been arrested.9 The circumstances of his interrogation and confession are, indeed, troubling. When the police brought Harris to the stationhouse, they had his father‘s telephone number at hand. Pretrial Hearings Transcript (PRT) at 111 (Testimony of Officer Tim Kobel). By the time they got around to using it, however, Harris, at times crying and shaking, had waived his rights in writing, confessed his crime on tape and led the police to the murder weapon; five hours had passed and the time was 1 a.m. The only excuse the police gave for this unsavory conduct would hardly reassure parents concerned with protecting the interests of their children: “Parents oftentimes will not enhance interrogation.” Id. at 185 (Testimony of Officer Marcia K. Barnhill).
Citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and United States v. Doe, 701 F.2d 819 (9th Cir.1983) (distinguishing Gault), Harris claims that the intentional delay in notifying his father violated due process. Gault differs significantly from the case before us, however, because it concerned the right to notice of
Harris urges us to extend Gault‘s parental notice requirement to police interrogations. He points out, correctly, that much can happen during interrogation that will prejudice a defendant‘s case. Here, for instance, Harris stood as good as convicted by the time he had confessed to the police and helped them find the gun. Gault, however, isn‘t premised on the mere potential for prejudice; it turns on the certainty that the proceeding will result in a binding decision that will affect the defendant‘s liberty.10 Due process protects the right to make an effective case against deprivation by the government, not the right against involuntary self-prejudice. The latter right is generally called the right against self-incrimination and is protected by the Miranda litany and the prohibition against admitting involuntary confessions.
Gault, thus, doesn‘t apply to police interrogation for the simple reason that an interrogation can have no effect on a person‘s liberty without his consent. Unlike a judicial proceeding, where a judge has the “intention ... to proceed to pronounce the judgment,” Hovey, 167 U.S. at 416, 17 S.Ct. at 844 (citations omitted), a police interrogation decides nothing. If the suspect feels unprepared, he may stand mute and will be no worse off. In sharp contrast to a trial, for instance, where the defendant can be convicted whether or not he chooses to take the stand, an interrogation with a silent suspect necessarily ends without any change in the status quo.
AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
I dissent.
On appeal Harris, in my view, makes a persuasive argument that Washington‘s aggravated murder statute is unconstitutionally ambiguous because it does not evince the legislature‘s clear intent to impose a mandatory sentence of life without the possibility of parole on juveniles under the age of 16. Harris argues that even though a Washington statute,
In Thompson v. Oklahoma, 487 U.S. 815, 826 n. 24, 850, 108 S.Ct. 2687, 2694 n. 24, 2707, 101 L.Ed.2d 702 (1988), the Supreme Court rejected the state‘s argument that when a juvenile is deemed fit to stand trial as an adult, he is also subject to all adult penal penalties. The Court stated that when a legislature allows juveniles to be processed through the adult criminal justice system “it does not necessarily follow that the legislature ... deliberately concluded that it would be appropriate to impose capital punishment on [juveniles].” Id. at 850, 108 S.Ct. at 2707. The Court explained that the limited capacity of the juvenile system to rehabilitate serious juvenile offenders did not render those juveniles death-eligible. Id.
Under
Few, if any, state legislatures have imposed a mandatory life sentence without the possibility of parole on juvenile offenders under the age of 16. In the absence of the Washington legislature‘s explicit intent to do so, I do not believe that we should sanction imposing such an extreme penalty on Harris. See Thompson, 487 U.S. at 849, 108 S.Ct. at 2706-07. I would grant habeas relief.