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Boyer v. Chappell

United States Court of Appeals, Ninth Circuit

July 16, 2015

RICHARD DELMER BOYER, Petitioner-Appellant,
KEVIN CHAPPELL, Warden, Respondent-Appellee

Argued and Submitted May 14, 2015, San Francisco, California

Appeal from the United States District Court for the Central District of California. D.C. No. 2:06-cv-07584-GAF. Gary A. Feess, District Judge, Presiding.


Habeas Corpus/Death Penalty

The panel affirmed the district court's denial of Richard Delmer Boyer's habeas corpus petition challenging his two first degree murder convictions and death sentence.

The panel held that the state court did not unreasonably apply clearly established Supreme Court precedent when it determined that federal law did not require the trial court to conduct a live evidentiary hearing to assess the reliability of testimony that the prosecution introduced at the penalty phase in order to prove that Boyer had committed a prior murder. Regarding Boyer's sufficiency of the evidence challenge to the prior murder, in connection with which Boyer pointed to problems with the eyewitness identification, the panel held that fairminded jurists could disagree on the correctness of the state court's decision that the evidence that Boyer committed the murder was sufficient.

Regarding Boyer's claim that trial counsel deficiently failed to investigate the possibility that Boyer suffered from organic brain damage at the guilt phase of the trial, the panel held that it was not unreasonable for the state court to conclude that Boyer's counsel conducted a thorough investigation into his mental state and that such investigation satisfied the performance prong of Strickland v. Washington. The panel also held that Boyer failed to demonstrate the requisite prejudice. The panel held that the district court did not err when it denied for largely the same reasons Boyer's claim that trial counsel deficiently failed to investigate the possibility that he suffered from organic brain damage at the penalty phase.

The panel rejected as foreclosed by precedent Boyer's contentions that the California death penalty is unconstitutional by virtue of (1) the statutory scheme's failure to narrow adequately the class of eligible defendants and (2) prosecutorial discretion.

The panel declined to certify two claims relating to the admission of testimony given pursuant to an agreement that the testimony would be consistent with prior statements to the police.

Certifying three previously-uncertified claims, the panel held that Boyer is not entitled to relief on his contentions that the trial court erred when it sua sponte failed to instruct the jury that unconsciousness is a complete defense and failed to define unconsciousness, and that trial counsel provided ineffective assistance for failure to request such instructions.

Lise S. Jacobson, Deputy Attorney General for the State of California, San Diego, California, argued the cause for the appellee the State of California. Kamala D. Harris, Attorney General of California, filed the briefs for the appellee. With her on the briefs were Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski, Deputy Attorney General, San Diego, California.

Joel Levine, Costa Mesa, California, and R. Clayton Seaman, Prescott, Arizona, argued the cause on behalf of the petitioner-appellant Richard Delmer Boyer and filed briefs.

Before: Diarmuid F. O'Scannlain, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.


Diarmuid F. O'Scannlain, Circuit Judge.

We must decide whether the California Supreme Court violated the United States Constitution in affirming a habeas petitioner's two first degree murder convictions and his death sentence.


A California state court jury convicted Richard Delmer Boyer of the double murder of an elderly couple, Francis and Aileen Harbitz. After a separate penalty proceeding, the jury returned a sentence of death.[1]



At the guilt phase of trial, the prosecution showed that the Harbitzes had been stabbed to death in their Fullerton, California home on December 7, 1982. When their son William Harbitz entered the home five days later, he discovered his father's body sitting upright against a bloody wall in the hallway and his mother's body covered in blood on the living room floor. Francis had sustained approximately 24 stab wounds to the neck, chest, and back, and bled to death because of knife wounds to the heart and aorta. Aileen had suffered 19 stab wounds and likewise bled to death as a result of her injuries. The Harbitzes' residence did not show signs of forced entry nor had it been ransacked, and there was approximately $400 worth of cash in the home when the bodies were discovered.

After discovering his parents' bodies, William mentioned Boyer's name to police. William had introduced Boyer to his parents, and Boyer had done odd jobs for the Harbitzes and borrowed money from them on occasion. William had come to know Boyer because they had previously lived in the same apartment complex.

When police subsequently searched the residence that Boyer maintained with his girlfriend, Cynthia Cornwell, officers found a pair of Levi's jeans stained with blood consistent with Boyer's and blood consistent with that of both Francis and Aileen Harbitz. Officers also recovered a buck knife, capable of inflicting the Harbitzes' wounds and stained with human blood, as well as the charred remains of a jacket burned in a hibachi grill.

John Kennedy, a key prosecution witness, testified under a grant of immunity that he had arrived at Boyer's residence between 4:30 and 5:00 p.m. on the afternoon of December 7, and that Boyer asked for a ride to his father's house to pick up some money. Along the way, Kennedy and Boyer stopped to buy cocaine from a dealer Kennedy knew, using $25 Kennedy had borrowed from his brother. They then proceeded to the home of Boyer's father, where Boyer spent approximately 15 minutes inside.

Kennedy and Boyer then drove to an apartment complex and attempted to buy marijuana, but failed. Boyer then directed Kennedy to another apartment complex to find " Bill." The pair failed to locate Bill, and Boyer speculated that Bill had moved back in with his parents. Boyer then directed Kennedy to " some dope dealer's house," which Boyer later revealed to be " Bill's parents' house" --that is, the Harbitzes' residence. Bill, of course, was William Harbitz.

Kennedy testified that Boyer entered the Harbitzes' home acting normally and remained inside for about 45 minutes. He returned, again acting normally, with a towel in hand. When a police patrol vehicle approached, Boyer began wiping the vehicle's rear window with the towel and shortly thereafter admonished Kennedy to " take off calmly, not to attract any attention."

As they drove away, Kennedy observed Boyer apply the towel to his left knee. Boyer told Kennedy that he had to hurt someone because they didn't " have no dope" and indicated that he had been stabbed himself. Soon after, Kennedy saw Boyer going through two wallets. Boyer threw one of the wallets out a window near an off ramp and put the other down a gutter. When the pair returned to Boyer's residence, Kennedy observed a stab wound to Boyer's knee. He also saw that Boyer was wearing his buck knife, and, before he left the residence, noted that there was blood on the open knife blade. During the evening, Boyer told Kennedy not to tell anyone what had happened that night.

Cynthia Cornwell likewise testified for the prosecution under a grant of immunity and reported that Boyer and Kennedy had left the residence Boyer and Cornwell shared so that Boyer could attempt to borrow money from his parents. He had previously tried to borrow $30 from Cornwell, which she knew to be the price of cocaine, but she had no money to give him.

Cornwell testified that, later that evening, when Boyer and Kennedy returned, Boyer's knee was bleeding and he was limping. Boyer told Cornwell that he had been injured in a confrontation with a loan shark. That same day, before police officers came to their residence, Boyer asked Cornwell whether she would wait for him if something happened. When Cornwell asked what was wrong, Boyer said " something about a murder" and told Cornwell " you are going to hate me." Cornwell admitted to burning Boyer's jacket on a hibachi grill.


For the defense, Dr. Ernest Klatte testified as an expert witness after interviewing Boyer four times for a total of eight and three-quarter hours. In addition to those interviews, Dr. Klatte reviewed reports prepared by the public defender and the Fullerton police, a forensic report prepared by the Orange County Sheriff's crime lab, and Boyer's medical records, which included indications that Boyer had suffered two serious traffic incidents years earlier.

Dr. Klatte related Boyer's version of the events. According to him, Boyer stated that he had been injecting cocaine and drinking heavily for some time. On the day of the murders, he drank beer in the morning and half a pint of whiskey in the afternoon, smoked a PCP cigarette, and shared a quarter gram of cocaine with Kennedy. He went with Kennedy to his parents' house in an attempt to obtain money from his mother, but failed because his father was home. He then attempted to find William Harbitz, but, again, failed. The two then went to Francis and Aileen Harbitz's home to find out how to contact William. During the trip, he began to have a headache and feel the effects of the PCP. Once they arrived at the Harbitzes' residence, Aileen Harbitz invited him into her home, and subsequently suggested he go to the back bedroom to talk to Francis. As he was leaving Francis's room, Boyer noticed a billfold and then felt very strange. Boyer felt that he was part of the horror movie Halloween II and that events in the house were changing speeds and items were becoming distorted.

Boyer's story changed significantly over the course of his interviews with Dr. Klatte. In his early interviews, conducted in 1982 and 1983, Boyer stated he had no recollection of the knife or the stabbing, and indeed had no recollection at all until he was outside in Kennedy's car. In a 1990 interview, however, Boyer said that he was " tripping" and hallucinated a man coming at him with a knife. Dr. Klatte testified that Boyer recalled having two wallets when he left the Harbitzes' residence, and that he admitted to discarding them.

Dr. Klatte opined, assuming Boyer told the truth about the drugs he ingested, that Boyer might have been impulsive and explosive on the night of the murders, and that he might have hallucinated. He also acknowledged Boyer had an antisocial personality and might have lied about the events in question. Dr. Klatte testified there was a significant possibility Boyer was malingering, and he was ...

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