Keith Daniel WILLIAMS
Robbery - Kidnapping - Rape
Number of victims: 3
Date of murder:
Date of birth: June
Victims profile: Miguel
Vargas, Salvadore Vargas and Lourdes
Method of murder:
Location: Merced County, California, USA
by lethal injection in California on May 3, 1996
Williams, Keith Daniel
San Quentin State Prison
County of Trial:
County of Residence:
County of Offense:
Robert Leslie Tyson, CDC# C01796
Victims, Miguel and Salvador Vargas, were found
lying face down on the floor in their rural Merced residence on
October 9, 1978. Both had been shot in the back of the head. Five
days later, Lourdes Meza's body was discovered in a field some
distance from the residence. She had been raped and shot four
The investigation revealed that two days
earlier, the three victims had gone to a rummage sale at the home
of the co-defendant, Robert Leslie Tyson and his wife, Karon Tyson.
The defendant, Keith Daniel Williams, was also present. At the
sale, Williams offered to buy Miguel Vargas's car for $1,500.
Williams wrote out a personnel check and agreed to wait for the
pink slip until the check had cleared the bank.
According to the co-defendant's wife, Karen Tyson, once the
victims had left, Williams began saying that he should have killed
them. Mrs. Tyson also stated that Williams continued to talk about
the "Mexicans" the next day, stating he was going to "blow them
away and take back the check." He also said that he would need her
husband for cover. Mrs. Tyson said that Williams and her husband
left for the victim's home in Merced around 4:00 p.m. on Sunday,
Mr. Leon Macias, the uncle of the two male victims, was at the
Vargas home when the defendant and co-defendant arrived some time
before 9:00 p.m. Mr. Macias stated that he, his nephews, Lourdes
Meza, his daughter and her girlfriend, and the defendant and co-defendant
sat around the dining room table discussing the sale of the car.
After some time, his daughter and her friend left and Salvador
went upstairs to bed. Mr. Macias stayed until 9:30 p.m.,
translating for Miguel, then left, telling Miguel that he would
return in the morning and go with him to cash the check.
When Macias returned the next morning at 9:00
a.m., there was no answer at the door. He did not investigate.
Later, after learning that Miguel had not shown up for work the
previous night, Macias returned to the Vargas home and found his
nephews murdered. Lourdes Meza was not in the home. Investigators
later determined that Lourdes was kidnapped and that she was raped
repeatedly before being shot.
Co-defendant, Robert Leslie Tyson, received
three concurrent 25-year-to-life sentences for his part in the
(Information for this summary was compiled from the Probation
Officer's Report and/or other court documents from the defendant's
Inmate Williams was executed May 3, 1996 in the
execution chamber at San Quentin State Prison.
Williams was the second California inmate to be
executed by lethal injection. Witnesses were escorted into the
witness area just after 11:45 p.m. Thursday, May 2. They observed
the insertion of IVs into Williams' arms. At 12:03 p.m., May 3,
Warden Arthur Calderon gave the order to begin the execution.
Williams was pronounced dead at 12:08 a.m.
Williams spent his last day visiting with his
attorneys and spiritual advisor. His last meal included fried pork
chops, a baked potato with real butter, asparagus, salad with bleu
cheese dressing, apple pie, and whole milk.
Williams had no last words.
Date: / /
1977-'78: P207-KIDNAP, P245-ASLT W/ DEADLY WEAP,
P211-ROBRY, ESCAPE FED PRISON
Date: / /
11/1976: P466-POSS BURG. TOOLS, V10851-VEHICAL
Date: / /
1971-'75: FORG., AUTO THEFT, V23102A, VIO.
PAROLE, P245-AWD, AG. ASSAULT
Date: / /
10/67: THIRD DEGREE RAPE
Date: / /
1963-'66: EXTENSIVE HISTORY OF JUVENILE ARRESTS
Keith Daniel Williams
By Steven King Ainsworth
I AM STARTING THIS WRITING on
March 11, 1996. Somewhere in Merced County,
California, a judge of the Superior Court will wake
up this morning, shower, shave, eat breakfast, kiss
his wife goodbye, and drive to the county court
house, where he will dress in black robes, mount an
elevated dais, and preside over a gathering of
attorneys. He, in concert with the others, will
decide the exact date and precise time that the
State of California will kill my best friend.
There will not be much bickering
or argument at this court hearing. The county, the
state with all its power and money, holds all the
cards. My friend of 16 years has none. No money, no
power, and nowhere to turn. In fact, he won't even
be in the courtroom. His fate will be decided in a
remote act far from his death row cell, where my
friend will awaken, wash his face, and eat a
breakfast of hard-boiled egg and rehydrated potato.
What won't be said at this hearing or in the days to
come that will culminate in his being strapped down
to a table in cruciform, his arms outstretched, his
veins punctured by stainless steel hypodermic
needles, and his live body filled with a poisonous
mixture of drugs until he is declared dead-is that
he is a human being and a good friend. Despite how
much the state and media try to stigmatize him with
the animal label, I will remember Danny for his
humanity, his laughter, his pain, his heart, his
comforting words, his kindness and compassion.
I first met Keith Daniel Williams
(Danny) in 1980, when he yelled down the tier to me
from his cell on death row, asking me if I needed
anything. Did I need some coffee, tobacco, stamps,
envelopes, writing paper or a book to read? Having
just gotten up to the shelf (as death row was called
back then) from the adjustment center, nine days
after being sentenced to death in Sacramento County,
I had nothing, and yelled back, "Yes, who am I
talking to?" The voice replied, "This is Danny in
A while later a guard brought a
brown paper bag to my cell with some coffee, tobacco,
stamps, envelopes, writing paper, a paperback book,
and a note written in shaky handwriting, telling me
the dynamics of the row and advising me which
exercise yard group to ask for. About a week later I
met Danny face-to-face in the birdcage yard atop the
North cell block where the then-27 men condemned to
Over the years Danny and I became
close friends. Friendship is a rarity in here, as
everyone plays it close to his chest, and very
seldom allows others to become privy to his
innermost thoughts. Danny was different, and I felt
a kinship with him. Hell, we could relate. We both
had a lot of time under the gun; he a little more
than I, having started his convict career at age 9
as a ward of the State. Both of us had been through
the crucible of gladiator school at DVI in Tracy and
progressed through the penal system, ultimately
ending up on death row at San Quentin. We would
chuckle when we heard the governor talk about career
criminals. Shit! We were career convicts! Between us
we had over 60 years in custody!
Danny shared my joy at seeing my
infant son in 1980. A few years later in 1984, when
my shit hit the fan and I spun out . . . screaming,
yelling, crying, and pleading for the gunrail to
shoot me, it was Danny who stepped between the gun
and me and pushed me into my cell, warning me that
the goon squad was coming. I had allowed my street
problems, a wayward wife, no visits with my son, a
dying mother, and frustration with the courts to get
to me. Danny tried to calm me down, but I was beyond
help and continued to rant and rave. Lighting my
cell afire and forcing a confrontation with the
guards, I was tasered, forcibly extracted from my
burned-out cell, and sent to the hole for a year.
Danny kept in touch with me,
sending messages to see how I was doing. When my
mother died in 1985, he was the first person to
console me through my grief. I did the same for him
when his daughter was killed by a hit-and-run driver.
Oh yes, even condemned killers lose family members
to crime and feel much the same emotions that other
victims of crime feel.
Danny liked to pull a practical
joke now and then. One time when there was a tour of
civilians up on the shelf looking down the death row
tier, he put a big dust bunny that had broken broom
straws in it down the back of another convict's
pants! The convict thought it was a mouse and when
he slapped his backside, he thought the mouse had
bit him! Yelling and jumping about, he took off his
pants and boxer shorts right there in front of the
tour! We all were trying to cover up our snickers
and guffaws! Later, the guy found out Danny was the
culprit and played a joke on him. He put some
jalapeno juice in the top end of Danny's tube of
Preparation H! It didn't work! Some days later we
asked Danny if he used any of it. He said yes, and
thought it was real good medicine because it burned
so bad! Ha!
After a seven-year hiatus I was
able to have my son brought up to San Quentin for a
visit. He didn't remember me as he was only 3 when I
last saw him. Danny was in the visiting room, and I
introduced him to my son and they became friends.
Danny told him that I spoke of my son often and
loved him and that my son should be proud of me.
Later, my son told me what Danny had said, and I
responded that I was happy that he was proud of me,
but that he should always keep in mind that there
are victims of my crimes that he should also think
about. Danny agreed with me, and we both talked
about remorse and restorative justice and how
difficult it is for a capital defendant to publicly
address these issues.
Over the years, when Danny h ad
the opportunity to talk with younger, non-condemned
convicts, I heard him advise them to turn away from
crime and control their anti-social behavior,
advising them that the path they were on would only
lead to a life of pain and sorrow and that by
recidivating they were playing The Man's game. He
would coach these young men, no matter what their
race. It was as if he could look into their eyes and
see himself at 25 and did not want them to repeat
the cycle of drugs, alcohol, crime, and imprisonment
that he had gone through.
Each time we would receive a bad
decision by the court and be scheduled to be
executed, we both would want to give up and die, but
I would tell him and he would tell me, "What good
would it do? What message would we be leaving our
children? How would it affect those on the row left
Danny encouraged me in my art and
other creative endeavors. He enjoyed sending xerox
copies of my black-and-white drawings to his friends
and family. I enjoyed introducing Danny to my
friends and family, and we often arranged our visits
so we could have group visits together. Sometimes
there would be an at-risk teenager in the group, and
Danny would tell him that he and I and our ilk were
not role models and that he should look to parents
and teachers as heroes and stay in school.
Danny knew the value of education.
Because of his early contact with the penal powers,
he had to teach himself to read and write in a
prison cell. He read voraciously and at times found
great wonder in words. He knew what he had missed
and felt great sadness at the decline of public
education in California and the nation. He expressed
exasperation over society's prison-building boom and
the incarceration of so many young lives at the
expense of education and quality schools.
One of the most surprising things
to me was that Danny was even able to think. In the
late sixties, after an event similar to the one that
sent me to the hole, Danny was subjected to
electroshock therapy at Vacaville. He managed to
survive that! He struggled with speech and memory
ever since, and it amazed me that he was even able
to put two sentences together. In the late eighties,
facing periodic execution dates , I undertook
researching my son's genealogy so that he might know
his ancestry. I told Danny what I was doing, and he
expressed an interest in doing the same for his
grandchildren (yes, he was a doting grandpa!) and
asked if I would help him. I did, and after some
correspondence across the nation we found a
preponderance of evidence that Danny was the
descendant of early Saxon, Norman, and Celtic royals.
His family came to America in the 1600s and settled
in Texas with Stephen Austin's early colonists in
Over the years, Danny and I both
have lost family members to crime, alcohol, drugs,
suicide, incarceration, and death. With each loss, I
could count on him to help me through the hard
depressing times. He was there as my friend, and I
am very glad for it.
Danny's mother died in 1995, and
though I did my best to console him, her passing and
a bad court decision moved Danny to publicly express
a desire to be executed. He asked me to help him,
and for the first time I told him no, I would not
help him die. The Attorney General did not act on
Danny's desire, probably because there is a real
question of Danny's competence to make such a
I could not say goodbye to him. I
did not want to. I told him to send me a sign. Not a
white feather like John and Julian Lennon's , but a
sign nonetheless, if it is better on the other side.
Keith Daniel Williams was
executed by lethal injection at San Quentin State
Prison on 3 May, 1996. His poisoned cadaver joins
the rising body count from death row since
reinstatement of capital punishment in 1977.
The State raised him from the age
of 9, fried his brain at 25, and killed him at 51. I
do not think the world is any better for it!
STEVEN KING AINSWORTH, C-13201,
Death Row, San Quentin, CA 94974
Arthur Calderon, Warden, San
Quentin State Prison, respondent-appellee
United States Court of Appeals,
Argued and Submitted Dec. 14,
Decided April 7, 1995
the United States District Court for the Eastern
District of California.
Before: POOLE, DAVID R.
THOMPSON, and TROTT, Circuit Judges.
POOLE, Circuit Judge:
to death for committing three murders,
appeals the district court's denial of his
petition for a writ of habeas corpus. We
have jurisdiction under 28 U.S.C. Secs. 1291
and 2253. Although we agree that some of
identify defects in his sentencing, none of
these flaws rise to the level of prejudicial
or harmful error warranting habeas relief.
We therefore affirm.
Tyson, and three others were out driving on
Saturday, September 30, 1978, when their car
broke down. Williams
and Tyson decided to rob a nearby camper.
They forced the couple occupying the vehicle
out and, as the couple fled,
several shots over their heads into the air.
In part to sell off the
contents of the camper,
Williams, Tyson and others1
held a yard sale. On Friday, October 6,
Miguel Vargas, Salvadore Vargas and Lourdes
Meza came to the sale. Miguel expressed
interest in selling his car for $1500. He
returned the next day with Meza and agreed
to sell the car. One of the members of the
group wrote out a check on a checkbook
stolen from the camper. Vargas also
expressed interest in buying
Vargas and Meza left,
Williams told Tyson how easy he
thought it would be to "just get rid of them."
A rough plan was formed to go to their place
in Merced and retrieve the bad check;
to kill the three.
Williams proceeded to clean his and
night, he sent two of the women in the group
out to hustle money or prostitute themselves
in order to obtain gas money. When that
himself went out Sunday morning and sold a
camera, and others in the group cashed more
checks from the stolen checkbook. With money
for gas, Williams
and Tyson then left for the Vargas'
farmhouse. They stopped along the way and
had at least two beers.
and Tyson found Miguel Vargas, Salvadore
Vargas, Meza, and three others. They drank
and discussed selling
Williams' gun. After the others left,
Williams and Tyson
retrieved their guns from the car.
Williams pulled a
gun on Miguel Vargas, but Tyson turned the
situation into a joke and
Williams and Tyson left briefly,
purportedly to get beer. They returned
within 15 minutes with guns drawn.
Tyson to guard Miguel while he went upstairs.
There he found Salvadore and Meza.
Tyson to bring Miguel upstairs and take Meza
downstairs and "take care of her." After
asking where the bad $1500 check was,
Salvadore and Miguel twice each.
retrieved two guns, Meza's purse, and the
check, and the three then left the farmhouse.
They drove for more than an hour, during
which time Williams
had intercourse with Meza in the back seat.
When the three finally stopped in a remote
area, Williams took
Meza from the car and shot her four times.
Meza's naked body was left abandoned in a
this entire period,
Williams consumed a disputed amount
of alcohol, morphine, codeine, heroin and
Williams and Tyson
returned to the Tyson's place, and
Williams then left
for good. Tyson became nervous and confessed
to the police within the week;
Williams was picked
up the next month and also confessed.
charged with murder with special
circumstances under California's 1977 death
penalty law. He pleaded not guilty by reason
of insanity, and was examined by two court
appointed psychiatrists, Drs. Brannan and
Lloyd, each of whom found him sane.
proceeded on a theory of diminished capacity.
Williams was found
guilty on three counts of first-degree
found nine of 10 special circumstances true--six
multiple-murder circumstances, two robbery
circumstances, and one kidnapping
circumstance. It found not true the charged
rape circumstance. The jury then found
Williams sane, and
returned a sentence of death on all three
appeal and first state habeas petition were
denied in their entirety. People v.
Williams, 44 Cal.3d
883, 245 Cal.Rptr. 336, 751 P.2d 395, cert.
denied, 488 U.S. 900, 109 S.Ct. 249, 102
L.Ed.2d 237 (1988). His second state habeas
petition received a postcard denial.
Williams then filed
his first federal habeas petition. The
district court, after granting an
evidentiary hearing only on
that the prosecution presented perjured
testimony, and after considering the case
for 26 months, denied all 19 of
Williams v. Vasquez,
817 F.Supp. 1443 (E.D.Cal.1993). This timely
de novo the district court's denial of
William's petition for a writ of habeas
corpus. Brown v. Borg, 951 F.2d 1011, 1014
(9th Cir.1991). We consider first, in Secs.
II-V, four alleged trial errors.
that 1) he was denied effective assistance
of counsel due to his attorney's
incompetence, 2) he was denied effective
assistance of counsel because his attorney
was burdened by a conflict of interest, 3)
he was denied his constitutional right to
psychiatric assistance, and 4) his trial was
infected by the perjury of the prosecution's
VI-VIII, we next consider instructional and
penalty-phase challenges by
Williams to 1) the
jury's special circumstance instructions, 2)
the adequacy of the guidance the penalty-phase
instructions provided the jury, and 3) the
trial court's consideration of various
allegedly impermissible factors in ruling on
a motion to modify
Williams' sentence. In Sec. IX, we
review procedural challenges to the district
court's handling of this case, including its
denial of an evidentiary hearing on all but
one of Williams'
claims. Finally, in Sec. X, we consider
constitutional challenges to the overall
sentencing scheme applied to him.
that he was denied the effective assistance
of counsel at the guilt, sanity, and penalty
phases of his trial. We review de novo the
denial of this claim. Paradis v. Arave, 20
F.3d 950, 959 (9th Cir.1994), cert. denied,
--- U.S. ----, 115 S.Ct. 915, 130 L.Ed.2d
796 (1995). We agree with the district
court's conclusion that
Williams was not prejudiced by his
familiar Strickland test,
Williams must establish both
deficient performance by counsel and that
that deficiency prejudiced him. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). "The
essence of an ineffective assistance of
counsel claim is that 'counsel's conduct so
undermined the proper functioning of the
adversarial process that the trial cannot be
relied on as having produced a just result.'
" Paradis, 20 F.3d at 959 (quoting
Strickland, 466 U.S. at 686, 104 S.Ct. at
Williams "must show that there is a
reasonable probability that, but for
counsel's unprofessional errors, the result
of the proceeding would have been different."
Strickland, 466 U.S. at 694, 104 S.Ct. at
2068. Counsel's errors must be "so serious
as to deprive the defendant of a fair trial,
a trial whose result is reliable." Id. at
687, 104 S.Ct. at 2064.
gravamen of Williams'
complaint is that his trial counsel, Roland
Howard ("R. Howard"), failed to conduct an
adequate investigation of a possible
diminished capacity defense.2
See Sanders v. Ratelle, 21 F.3d 1446, 1456
(9th Cir.1994) ("[C]ounsel must, at a
minimum, conduct a reasonable investigation
enabling him to make informed decisions
about how best to represent his client." (emphasis
Williams alleges that R. Howard
failed to examine Williams'
previous medical records or to seek
appointment of an independent psychiatrist
to examine Williams,
and was unaware of California Penal Code
Sec. 987.9, authorizing funding for experts
for indigent defendants in capital cases.
declarations from five psychiatrists who
have examined him since 1988 who now say
that he was suffering from diminished
capacity at the time of the killings.
district court, we decline to consider
has established cause, because we conclude
that he cannot establish prejudice.3
In reaching this conclusion, we need not ask
whether introduction of the opinions of the
five favorable psychiatrists
Williams has now
found would have made a difference to the
jury in 1979, as Williams
would have us do.
we consider whether, if Howard sought
appointment of a psychiatric expert, and if,
upon evaluation, that psychiatrist reached
conclusions approximating those of
psychiatrists (rather than confirming the
opinions of Brannan and Lloyd), such
testimony, combined with the introduction of
records, would have made a difference. We
can only conclude that it would not.
defense proceeded on a theory of diminished
does not challenge this decision, arguing
only that stronger evidence should have been
identified and introduced. However, contrary
evidence of Williams'
intent to kill and his ability to maturely
and meaningfully reflect on his actions was
simply overwhelming. See Cal.Penal Code Sec.
188 (defining malice); People v. Horn, 12
Cal.3d 290, 298, 115 Cal.Rptr. 516, 524 P.2d
1300 (1974) (defining premeditation).
own testimony, both on the stand and during
a taped confession played for the jury, was
so clear, lucid, and powerful that no
psychiatrist would have made a difference.
He described in meticulous detail how he
decided the previous day to rob and "get rid
of" the people to whom he had just sold his
car, and how he cleaned his guns, obtained
gas money, carried out the killings, and
fled from the state.
suggested nor gave any reason to believe
that he had had difficulty thinking clearly;
the one excuse he offered instead was that
the Vargases had moved toward him right
before he shot them, a theory of self-defense
discounted by forensic evidence and
ultimately rejected by the jury. Karen and
Robert Tyson each corroborated
intentions and lucidity in all material
aspects. We have thoroughly reviewed the
trial transcript and record, and we believe
it leaves no room for doubt.
introduction of Williams'
medical records, combined with the
possibility that one psychiatrist might have
testified to diminished capacity in place of
Drs. Brannan and Lloyd, does not suffice to
establish "a probability [of a different
result] sufficient to undermine confidence
in the outcome." Strickland, 466 U.S. at
694, 104 S.Ct. at 2068. Even had such
evidence been introduced, we are fully
confident the jury would still have
concluded that Williams
acted with premeditation and malice
that he need not show prejudice at the
sanity phase because counsel's abandonment
of Williams "caused
a breakdown in [the] adversarial system of
justice." United States v. Swanson, 943 F.2d
1070, 1074 (9th Cir.1991); accord United
States v. Cronic, 466 U.S. 648, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984). We disagree.
At the sanity phase, no
witnesses were called; R. Howard instead
read the entirety of Drs. Lloyd's and
Brannan's reports into the record. Each had
was sane. As Williams
correctly notes, the jury's decision in this
phase was preordained.
not follow, however, that because the jury's
decision was a foregone conclusion, R.
Howard abandoned his client. We do not
equate an unwinnable case with abandonment.
At the time of the trial, no experts had
was not sane. Indeed, even today, none of
psychiatrist declarations indicate
Williams was not
Howard's response to this evidence contrasts
sharply with the reaction of counsel in
Swanson, on which Williams
principally relies. In Swanson, counsel
conceded in closing that the evidence was
overwhelming and that there was no
reasonable doubt as to his client's guilt.
Swanson, 943 F.2d at 1077-78. Here, R.
Howard argued that "there is ample evidence
in those reports [of Lloyd and Brannan] that
ought to raise some question in your minds
with regard to this particular issue." RT
4/10/79 at 1539.
emphasized to the jury that the question of
sanity rested with them, not the doctors,
and that they should "not simply be rubber
stamps for someone else's decision." RT
4/10/79 at 1547. He reminded the jury of the
evidence admitted during the guilt phase
which might bear favorably on the question
of sanity. In light of the evidence, R.
Howard did all he could.
Because R. Howard did not
abandon his client,
Williams' claim must be measured
under the usual Strickland standard.
Williams can show
no sanity-phase prejudice. No evidence
existed then that Williams
was not sane; even today, no psychiatrist
has said Williams
was not sane.4
that in addition to not adequately
investigating a diminished capacity defense,5
as previously discussed, R. Howard also
failed to investigate other potential
mitigating evidence, including evidence of
that in reading Drs. Lloyd and Brannan's
reports to the jury during the sanity phase
without seeking a proper limiting
instruction, Howard introduced damaging
information that the jury could then
consider in aggravation. These errors,
prejudiced him during the penalty phase of
his trial. We are not persuaded.
Howard presented no
mitigating evidence during the penalty phase
trial. However, mitigating evidence was
presented in the course of the guilt phase,
which the jury was entitled to consider in
its determination of sentence. Cal.Penal
Code Sec. 190.4(d).6
This included evidence of
Williams' premature birth, early
health problems, epilepsy, head injuries,
voluntary psychiatric commitment, mother's
alcoholism, lack of contact with his natural
father, and parental abuse, including
beatings by Williams'
The jury was never informed
that Williams was
illegitimate, or that he apparently suffered
from fetal alcohol syndrome. While counsel
could have provided more detail in support
of these mitigating factors, we agree with
the district court's conclusion that "the
jury was exposed to much of the evidence [Williams]
complains was omitted due to counsel's
817 F.Supp. at 1462. This greatly diminishes
any impact the failure to further
investigate possible mitigating factors may
and Lloyd's reports, read into the record by
R. Howard, contained numerous statements
which Williams now
challenges as prejudicial. These included
statements from Williams
this whole trip is a bunch of "S." He said
he would just like to get it over with and
take what is coming to him.
He does not think jail will
do him any good....
that if he does twenty years in prison he
will get out and probably do the same thing
He sums it
up by telling me that, one, he rejects
authority and always will. Two, he does not
go for the rehab bullshit. Three, he goes by
the same code of ethics whether he is inside
or outside of jail. Four, he is very
prejudiced against Mexicans.
at 1526. In addition, Dr. Brannan opined
that "I think he remains a danger to the
health and safety of others, himself
included. The reason I say this is because I
think he is sociopathic, impulsive, and acts
without thinking...." RT 4/10/79 at 1528.
The reports also recounted a substantial
prior history of assaultive conduct. While
some of this information came in at other
portions of the trial (for instance,
testified that "I don't particularly like
Mexicans, period"), much of it did not.
We have no
doubt that these statements did nothing to
cause. We cannot conclude, however, that
they materially harmed him, because the
evidence militating against leniency towards
Williams, indeed, was his own worst
enemy; from his testimony alone the jury
could already have drawn many of the same
conclusions Dr. Brannan reached and related.7
The corroboration of the Tysons further
augmented the profile. In short, Brannan's
report, while highly unflattering, did not
materially worsen Williams'
On this record,
show that these alleged errors, including
the failure to more fully investigate
diminished capacity, prejudiced him. In
light of the grievous nature of the crimes
relentlessly indifferent attitude towards
them, we find no reasonable probability that
the jury would have reached any verdict
other than death.
Williams raises a
second Sixth Amendment claim, arguing for
reversal because his attorney represented
him while subject to a conflict of interest,
thereby depriving him of his right to
effective assistance of counsel. According
to Williams, the
fact that payment for any investigation or
psychiatric services could have come from
counsel's pocket forced counsel to choose
interests and his own. We discern in this
situation no conflict of constitutional
Williams raised no
objection at trial, "[i]n order to establish
a violation of the Sixth Amendment ... [he]
must demonstrate that an actual conflict of
interest adversely affected his lawyer's
performance." Cuyler v. Sullivan, 446 U.S.
335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d
this and other circuits have previously
recognized that a Cuyler claim may in theory
lie where an attorney's financial interests
are in conflict with his client's interests.
See United States v. Hearst, 638 F.2d 1190,
1193-94 (9th Cir.1980) (holding allegation
that attorney acted contrary to client
interests based on book contract stated
claim), cert. denied, 451 U.S. 938, 101 S.Ct.
2018, 68 L.Ed.2d 325 (1981); Buenoano v.
Singletary, 963 F.2d 1433, 1438-39 (11th
the Model Rules and Model Code regulate and
restrict such situations and recognize that
they pose conflict of interest problems.
Model Rules of Professional Conduct Rule
1.8(d) (1991); Model Code of Professional
Responsibility DR 5-104(B) (1981).
Williams' invitation to extend Cuyler
from that recognized conflict of interest to
the present situation. Representation of
rich and poor alike is one of the nobler
ideals of the legal profession: "nowhere is
... service [to clients] deemed more
honorable than in case of appointment to
represent an accused too poor to hire a
lawyer." Frazer v. United States, 18 F.3d
778, 784 (9th Cir.1994) (quoting Von Moltke
v. Gillies, 332 U.S. 708, 726, 68 S.Ct. 316,
324, 92 L.Ed. 309 (1948) (plurality opinion)).
quality of such representation might well
improve if counsel were to volunteer to
place her private financial resources at
defendant's disposal. As the district court
correctly noted, counsel is under no
obligation to do so.
Williams, 817 F.Supp. at 1473. All
Williams alleges is
the same theoretical conflict that exists
between an attorney's personal fisc and his
client's interests in any pro bono or
underfunded appointment case. Such
arrangements, without more, do not require
Sixth Amendment scrutiny.
that he was denied his right to psychiatric
assistance at trial, as defined by Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84
L.Ed.2d 53 (1985). Because
Williams failed to establish
entitlement to an independent psychiatrist,
we find no Ake error.
process guarantee of fundamental fairness
requires that a state provide indigent
defendants with the "basic tools of an
adequate defense or appeal." Id. at 77, 105
S.Ct. at 1093 (quoting Britt v. North
Carolina, 404 U.S. 226, 227, 92 S.Ct. 431,
433, 30 L.Ed.2d 400 (1971)). In some cases,
access to a psychiatrist may constitute one
of those tools. Consequently, when a
defendant demonstrates to the trial judge
that his sanity at the time of the offense
is to be a significant factor at trial, the
State must, at a minimum, assure the
defendant access to a competent psychiatrist
who will conduct an appropriate examination
and assist in evaluation, preparation, and
presentation of the defense.
Id. at 83,
105 S.Ct. at 1096. This requirement is not
satisfied by the provision of a neutral
psychiatrist answerable to the court or the
opportunity to cross-examine that expert.
Smith v. McCormick, 914 F.2d 1153, 1158-59,
1163 (9th Cir.1990). Instead, due process
requires the appointment of one psychiatrist
for use by the defense in whatever fashion
defense counsel sees fit. Id. at 1157.
not delve into the murkier substantive
issues involved in
Williams' Ake claim, as the district
court did, because we conclude that the
necessary procedural predicate has not been
met. Ake makes clear that psychiatric
assistance is a contingent, not an absolute,
right: it holds that "when a defendant has
made a preliminary showing that his sanity
at the time of the offense is likely to be a
significant factor at trial" the state must
provide psychiatric assistance. Ake, 470
U.S. at 74, 105 S.Ct. at 1091-92 (emphasis
added); accord id. at 82, 105 S.Ct. at 1096
(the right to a psychiatrist is invoked "[w]hen
the defendant is able to make an ex parte
threshold showing to the trial court that
his sanity is likely to be a significant
never moved for appointment of an
independent psychiatrist, nor did he ever
attempt to demonstrate to the judge that his
mental state would be at issue.
Roland Howard (R. Howard) made only an
informal, in camera inquiry as to whether
any "investigatory funds" might be available;
the "impression" he received was that none
were. Such a nonspecific inquiry does not
obligation "to make an ex parte threshold
showing" of the need for a psychiatrist.
This failure to seek assistance is fatal to
Williams' Ake claim.
that Smith holds the failure to object to
the denial of a psychiatrist immaterial,
based on the following language: "Again,
even if [petitioner] had not so objected,
the principal basis of the Ake claim would
still remain: he was not provided a
psychiatric expert charged with assisting
him in his defense." Smith, 914 F.2d at
objection at issue was not to the failure to
provide a psychiatrist, but to the
forwarding of a court-appointed
psychiatrists' report directly to the court.
Id. Moreover, the flaw in
Williams' case lies not in any
failure to object, but in the failure to
make an affirmative showing necessary to
trigger the right he seeks to vindicate.
Smith is in fact entirely consistent with
Ake; the majority and dissent exhaustively
debate whether Smith's counsel properly
sought an independent psychiatrist. See id.
at 1160-62; id. at 1171-73 (Fernandez, J.,
that the prosecution failed to disclose two
deals it had cut with its chief witness,
coconspirator Robert Tyson, then allowed
Tyson to perjure himself by denying he had
been promised anything for his testimony.
After an evidentiary hearing, the district
court concluded neither of the alleged deals
existed. We will not reverse that factual
finding absent clear error. Amadeo v. Zant,
486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100
L.Ed.2d 249 (1988). In light of the
conflicting evidence presented, the district
court's conclusion was not clearly erroneous.
Robert Tyson was the state's
principle witness against
Williams. At the time of his
testimony, he had already been tried and
sentenced. At the close of his testimony, he
testified that the district attorney's
office had made no promises with regard to
charges against him, and that no promises
had been made in return for his testimony.
According to Williams,
this was perjury. He alleges that two deals
existed, one regarding parole and the other
regarding the death penalty. We consider
each in turn.
Tyson testified to irreconcilably different
versions of the parole deal. In one version,
given in 1988, he was contacted after his
conviction by the District Attorney's
office. The District Attorney's office
threatened that he could "rot in prison" but
offered not to oppose parole when he became
eligible if he agreed to testify. In a
second 1993 version, District Attorney Larry
Howard ("L. Howard") offered a deal to Tyson
while he was in jail during his trial. Tyson
discussed it with numerous other people and
decided to testify against
in live testimony during the 1990
evidentiary hearing, Tyson explained that he
had not been contacted by the District
Attorney about testifying, and in fact was
surprised when a deputy arrived to pick him
up from jail so that he could testify.
version, Tyson was still set against
testifying when he met L. Howard at the
county courthouse, but Howard changed his
mind by explaining that District Attorney's
office could keep him in jail, or cooperate
with parole. Even so, Tyson testified that
L. Howard said, "I can't promise you nothing
right now." EH 9/24/90 at 8-9.8
of this conflicting testimony, Tyson's
concession at the evidentiary hearing that
L. Howard refused to make any promises, and
L. Howard's own testimony that he made no
promises, the district court was entitled to
conclude that no parole-related promises
were made. Consequently, even if Tyson was
motivated to testify by his subjective
belief that it might improve his chances of
parole, as it seems clear he was, his
testimony that he had been made "no promises"
was not perjurious.
addition, a second deal allegedly existed in
which the District Attorney would agree not
to seek the death penalty in return for
Tyson's cooperation. L. Howard testified to
the following conversation occurring while
Tyson was leading Howard and several
detectives to Meza's body on October 13:
So with regard to the death penalty then
that Mr. Tyson was concerned about what was
said, if anything, for example, by you,
first of all, to Mr. Tyson with regard to
the death penalty?
A: The only thing that I
recall telling Tyson was that I told him
that he was--asked him, really, if he was
willing to testify. And he was very blunt.
He said, "Sure, I'll do anything." And I
said, "Is what you have told the
investigators the truth?" And he said, "Yes."
And I said, "Do you understand that we have
to do some investigating and check out what
you're saying to us? But if what you're
saying is corroborated by what we find out,
then we'll not seek the death penalty."
. . . . .
Q: And you indicated that
if [his story] checked out and so forth and
that he continued to cooperate, that you
wouldn't be seeking the death penalty,
A: We told him that.
9/17/90 Deposition at 9-11.
This testimony is ambiguous;
it might or might not indicate a promise by
the District Attorney not to seek the death
penalty in return for a promise by Tyson to
testify. L. Howard never explicitly made
seeking that penalty contingent on Tyson
testifying. L. Howard's own interpretations
are conflicting. In the same deposition, he
denied that any deal was made limiting
Tyson's sentence in return for testimony.
according to a parole board investigator, in
1987 "Howard recollected that Tyson agreed
to testify in court against
Williams, if the
District Attorney's Office would not seek
the death penalty in his trial." 1987 Parole
Board Report of Investigation at 1.
this ambiguity is the fact that out of all
the testimony and declarations of Tyson, in
not one does he ever mention any "testimony
for no death penalty" deal. The one note of
consistency in his story is that he was
motivated to testify because he believed it
would increase his chances of parole.
other evidence of any such deal is the 1993
declaration of Nick Groen, who alleges that
when he visited Tyson shortly after his
arrest 14 years earlier, Tyson told him he'd
been offered "no death penalty" and help
may have transpired on October 13, it
appears that Tyson did not perceive that he
had been promised no death penalty for his
testimony. The district court's conclusion
that no deals were struck was therefore a
permissible one in light of the evidence. We
cannot say that Tyson's testimony to the
contrary was perjury.
Consequently, we need not determine whether
" 'there is any reasonable likelihood that
the false testimony could have [a]ffected
the judgment of the jury.' " United States
v. Young, 17 F.3d 1201, 1203 (9th Cir.1994)
(quoting United States v. Agurs, 427 U.S.
97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342
argues that the state trial court
erroneously failed to instruct on an element
of the kidnapping special circumstance, that
the jury's finding this circumstance true
was therefore invalid, and that this error
is not subject to harmless error review. We
agree that instructional error occurred, but
it does not require reversal.
California's 1977 death penalty statute uses
special circumstances to narrow the death-eligible
class. Cal.Penal Code Sec. 190.2. Only once
one or more special circumstances have been
found will a separate penalty-phase trial
occur. At that stage, jurors are provided a
new list of factors which they can "consider,
take into account, and be guided by."
Cal.Penal Code Sec. 190.3. The special
circumstances used to determine death-eligibility
are included as part of one factor the jury
may consider. Cal.Penal Code Sec. 190.3(a).
California Supreme Court and the district
court properly found or assumed error in the
kidnapping special circumstance instructions.
Williams, 44 Cal.3d
at 928-29, 245 Cal.Rptr. 336, 751 P.2d 395;
F.Supp. at 1482-83. Under California law, it
is not enough that murder happen during a
kidnapping, or vice-versa; for the felony-murder
special circumstance to be satisfied, the
murder must be intended to advance an
independent felonious purpose. People v.
Green, 27 Cal.3d 1, 59-63, 164 Cal.Rptr. 1,
609 P.2d 468 (1980).
as the California Supreme Court explained in
Green, it added this element out of
constitutional necessity, not mere state law
nicety, for without this narrowing
construction, the special circumstance would
run afoul of the requirements of Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972), and Gregg v. Georgia,
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976) that states provide a rational basis
for distinguishing between those who deserve
to be considered for the death penalty and
those who do not. Green, 27 Cal.3d at 61,
164 Cal.Rptr. 1, 609 P.2d 468. In part
because Green was decided one year after
the special circumstance instructions failed
to require a finding of this element.
suggests that Sullivan v. Louisiana, ---
U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993) bars harmless error review of this
omission. Sullivan does no such thing.
Errors generally fall into two categories:
1) structural error, affecting the
fundamental nature of how trial was
conducted or a conviction reached, which
requires per se reversal, and 2) trial
error, which is subject to harmless error
review. Arizona v. Fulminante, 499 U.S. 279,
307-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d
holds only that failure to properly instruct
on the "beyond a reasonable doubt" standard
for finding guilt constitutes structural
error. Sullivan, --- U.S. at ----, 113 S.Ct.
at 2082-83. In contrast, error in the
instructions on a death penalty special
circumstance is trial error susceptible of
harmless error review. See Wade v. Calderon,
29 F.3d 1312, 1322 (9th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 923, 130
L.Ed.2d 802 (1995).
Williams is not
entitled to relief unless "the error 'had
substantial and injurious effect or
influence in determining the jury's verdict.'
" Brecht v. Abrahamson, --- U.S. ----, ----,
113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)
(quoting Kotteakos v. United States, 328
U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed.
1557 (1946)). The error must result in
"actual prejudice." Id.
error involves a failure to provide a
narrowing instruction on a death special
circumstance, we begin by asking whether it
can be concluded, in light of the other
instructions, that the jury necessarily
found the omitted narrowing element. Wade,
29 F.3d at 1322. Here, the instructional
error meant that the jury could find the
kidnapping-murder special circumstance based
solely on the fact that the murder occurred
during a kidnapping, without finding that
the killing was intended to further the
The district court concluded
that the jury necessarily found this element
817 F.Supp. at 1483-84. In its view, finding
kidnapped Meza entailed a finding that
for doing so was to rape her, and that his
reason for killing her was to then silence
her. This is one plausible explanation for
It is by no means the only one.9
the jury instructions required the jury to
reach these conclusions in order to find the
kidnapping special circumstance true. So
long as Meza's killing occurred during an
asportation by force, the jury instruction's
definition of the circumstance was met.
Therefore, the instructional error cannot be
considered harmless on the theory that the
jury necessarily found the omitted element.
court took a slightly different tack,
concluding that because the evidence against
Williams was so
overwhelming, no rational, properly
instructed jury could have failed to find
the omitted element.
Williams, 44 Cal.3d at 928-29, 245
Cal.Rptr. 336, 751 P.2d 395.
suffered no prejudice. This analysis
mistakenly focuses on a hypothetical jury,
when the role of the reviewing court in
conducting harmless error analysis is "to
consider ... not what effect the
constitutional error might generally be
expected to have upon a reasonable jury, but
rather what effect it had upon the ...
verdict in the case at hand." Sullivan, ---
U.S. at ----, 113 S.Ct. at 2081; Wade, 29
F.3d at 1322 ("the question is not 'were
they [the jurors] right in their judgment,
regardless of the error or its effect on the
verdict.' ") (quoting Brecht, --- U.S. at
----, 113 S.Ct. at 1724 (Stevens, J.,
Because the instructional
omission cannot be cured in either of these
fashions, we must determine what effect
consideration of this "invalid" aggravating
factor may have had on the jury's verdict.
Under the Supreme Court's doctrinal
framework, what approach applies turns on
whether California was a "weighing state" in
1977. See Stringer v. Black, 503 U.S. 222,
229-32, 112 S.Ct. 1130, 1136-37, 117 L.Ed.2d
367 (1992); Clemons v. Mississippi, 494 U.S.
738, 744-50, 110 S.Ct. 1441, 1445-49, 108
L.Ed.2d 725 (1990); Zant v. Stephens, 462
U.S. 862, 890, 103 S.Ct. 2733, 2749-50, 77
L.Ed.2d 235 (1983).
effect an invalid aggravating factor has in
a non-weighing state is that otherwise
admissible evidence receives the label "aggravating
factor." Id. at 888, 103 S.Ct. at 2748. In
weighing states, by contrast, "when the
sentencing body is told to weigh an invalid
factor in its decision, a reviewing court
may not assume it would have made no
difference if the thumb had been removed
from death's side of the scale." Stringer,
503 U.S. at 232, 112 S.Ct. at 1137.
this, in non-weighing states reviewing
courts may affirm so long as other
aggravating factors remain, while in
weighing states reviewing courts must
conduct constitutional harmless-error
analysis or a reweighing. Clemons, 494 U.S.
at 744-45, 110 S.Ct. at 1445-47; Stringer,
503 U.S. at 230-32, 112 S.Ct. at 1137.
without argument that California is a
weighing state, and that the Supreme Court's
weighing state precedents therefore apply.
We disagree with this assumption.
Undoubtedly California's current death
penalty scheme, passed in 1978, creates a
weighing state regime, but the 1977 law
under which Williams
was sentenced was critically different.
The Supreme Court's weighing/non-weighing
distinction does not turn simply on whether
or not the word "weighing" appears in a
state's statute. See, e.g., Richmond v.
Lewis, --- U.S. ----, ---- - ----, 113 S.Ct.
528, 534-35, 121 L.Ed.2d 411 (1992) (holding
that Arizona is a weighing state despite the
absence of the term).
the distinction can be understood
functionally in one of two ways. First, when
a jury "is specifically instructed to weigh
statutory aggravating and mitigating
circumstances," Zant, 462 U.S. at 890, 103
S.Ct. at 2750, and its decision is tied to
the outcome, the decisional process
necessarily becomes infected by the improper
where no such procedure is mandated, the
factor need not infect the process; the jury
is under no obligation to weigh the factor
as part of its calculus. Second, when a jury
is limited to the consideration of discrete
aggravating factors, consideration of an
invalid factor may allow consideration of
something--the circumstances supporting the
factor--that could not have otherwise been
contrast, when a jury is permitted to
consider any evidence it deems relevant in
aggravation, the consideration of an invalid
factor adds only an improper label--the
state's "aggravating factor" imprimatur--to
underlying circumstances which could have
been taken into account anyway. Id. at
886-88, 103 S.Ct. at 2747-49.
Consequently, the Supreme Court's weighing/non-weighing
distinction may involve both procedural and
0] Procedurally, is the sentencer restricted
to a "weighing" of aggravation against
mitigation? Substantively, is the sentencer
prevented from considering evidence in
aggravation other than discrete, statutorily-defined
of federal and state court decisions reveals
that where both constraints are present, the
regimes involved are uniformly treated as
where neither is present, the regimes are
uniformly treated as non-weighing12;
and where one but not the other is present,
disagreement has arisen.13
We need not deal with that
disagreement or decide any further whether
procedural or substantive constraints lie
closer to the core of the distinction,
because the statute we are faced with
involves neither constraint. As the
California Supreme Court explained in
discussing the change from the 1977 to the
initiative, however, enacted a crucial
change in the method by which the jury
determines whether to impose the death
penalty.... Under the 1977 version of
section 190.3, the jury must 'consider, take
into account and be guided by the
aggravating and mitigating circumstances'
enumerated in the section. T
he statute, however,
provided no further guidance or limitation
on the jury's sentencing discretion. In the
absence of such a limitation, the jury was
free, after considering the listed
aggravating and mitigating factors, to
consider any other matter it thought
relevant to the penalty determination.
The 1978 initiative, by
contrast, provided specifically that the
jury 'shall impose a sentence of death if [it]
concludes that the aggravating circumstances
outweigh the mitigating circumstances. If [it]
determines that the mitigating circumstances
outweigh the aggravating circumstances [it]
shall impose a sentence of confinement in
state prison for a term of life without the
possibility of parole.'
By thus requiring the
jury to decide the appropriateness of the
death penalty by a process of weighing the
specific factors listed in the statute, the
initiative necessarily implied that the
matters not within the statutory list are
not entitled to any weight in the penalty
People v. Boyd, 38 Cal.3d
762, 773, 215 Cal.Rptr. 1, 700 P.2d 782
(1985) (citations omitted). Thus, it was not
until 1978 that California required a
weighing of statutory and mitigating factors.14
important, the statute placed no limits on
what the jury could consider at the
sentencing phase; not until 1978 were juries
restricted to considering only the discrete
factors listed in Sec. 190.3. Compare People
v. Murtishaw, 29 Cal.3d 733, 773, 175
Cal.Rptr. 738, 631 P.2d 446 (1981) (allowing
jury under 1977 law to consider evidence not
tied to any statutory factor), cert. denied,
455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 464
(1982), with Boyd, 38 Cal.3d at 773-74, 215
Cal.Rptr. 1, 700 P.2d 782 (reaching opposite
conclusion under 1978 law).
Williams' jury was
properly instructed in accordance with these
interpretations; the trial court explained,
ladies and gentlemen, if during the course
of the argument you thought you heard a
comment about the law as being that it says
that you shall impose a sentence of death if
you conclude that the aggravating
circumstances outweigh the mitigating
circumstances, or you shall impose
mitigating--excuse me, life imprisonment
without possibility of parole if you feel
that the mitigating circumstances outweigh
the aggravating circumstances, I tell you
that's not the law that applies to the case.
You may use those. As the way
in which you go about this. But the way you
go about this is up to you. And the law does
not say you shall do one or the other.
Consequently, because neither of the
previously-identified constraints were
placed on the sentencing-phase
decisionmaking, we can safely say that the
1977 California death penalty law created a
nonweighing regime. As such, it is governed
by the rule of Zant that invalidation of one
aggravating circumstance does not require
reversal so long as other aggravating
circumstances remain. Zant, 462 U.S. at 884,
103 S.Ct. at 2746-47.
found several other valid special
circumstances. Even with a correct, or no,
kidnapping special circumstance instruction,
the jury could still have considered Meza's
kidnapping in making its decision. We
conclude that in light of the remainder of
the instructions and evidence in this case,
the slight impact from placing the label "special
circumstance" on an otherwise admissible
consideration "cannot fairly be regarded as
a constitutional defect in the sentencing
process." Id. at 889, 103 S.Ct. at 2749.
Williams has thus
suffered no "actual prejudice" as a result
of any Green error. Brecht, --- U.S. at
----, 113 S.Ct. at 1722.
that the penalty-phase jury instructions in
his case failed to adequately guide the jury
and ensure individualized sentencing in
accordance with Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
Having considered the jury instructions in
their entirety, we conclude that they were
fully consistent with the mandate of Gregg.
argues that he was improperly charged with
more than one multiple-murder special
circumstance. The jury was instructed on,
and found true, six multiple murder special
circumstances, two each for each of the
three murders. At the penalty phase, they
were permitted to consider any special
circumstances found true. The state
concedes, and the California Supreme Court
found, that this overcharging was error.
Williams, 44 Cal.3d
at 950, 245 Cal.Rptr. 336, 751 P.2d 395.
the jury should have been instructed on one
multiple murder special circumstance.
However, we have previously rejected the
possibility that such an error could be
material, concluding that "[i]t is highly
unlikely that the jury simply counted up the
special circumstances charged and based the
verdict on such calculation. We cannot
reverse on the basis of speculation of that
nature." Harris v. Pulley, 692 F.2d 1189,
1203 (9th Cir.1982), rev'd in part on other
grounds, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d
that Richmond v. Lewis, --- U.S. ----, 113
S.Ct. 528, 121 L.Ed.2d 411 (1992) and
Stringer v. Black, 503 U.S. 222, 112 S.Ct.
1130, 117 L.Ed.2d 367 (1992) supersede
Harris's conclusion by holding that courts
may not presume the consideration of
improper factors did not affect a jury's
weighing. However, as we explained above,
California in 1977 was not a weighing state.
These later weighing state cases are
inapposite. We therefore reject
suggestion that anything in Stringer or
Richmond frees us to disregard Harris.
Even if this were not so,
Williams would be
entitled to no relief for a second reason.
As we have previously discussed, after
Richmond, Stringer, and Clemons v.
Mississippi, 494 U.S. 738, 110 S.Ct. 1441,
108 L.Ed.2d 725 (1990), state courts in
weighing states may still cure the
consideration of improper factors in
sentencing either by weighing or by
conducting constitutional harmless-error
review. Stringer, 503 U.S. at 230-32, 112
S.Ct. at 1137.
Here, California chose the
latter course. The state Supreme Court
considered the error in light of the entire
record and concluded that there was "no
possibility" the error had affected the
44 Cal.3d at 950-51, 245 Cal.Rptr. 336, 751
P.2d 395. This review and conclusion satisfy
the requirements for constitutional harmless-error
analysis. Chapman v. California, 386 U.S.
18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705
(1967) (requiring that error be harmless "beyond
that the trial court failed to instruct the
jury that with regard to factor Sec.
it could consider any criminal activity only
if proved beyond a reasonable doubt, as
required by People v. Robertson, 33 Cal.3d
21, 188 Cal.Rptr. 77, 655 P.2d 279 (1982).
Robertson error is state law error, not
cognizable on federal habeas. Estelle v.
McGuire, 502 U.S. 62, 67-69, 112 S.Ct. 475,
480, 116 L.Ed.2d 385 (1992).
the state court found no Robertson error,
Williams, 44 Cal.3d
at 958-59, 245 Cal.Rptr. 336, 751 P.2d 395,
a conclusion binding on us. Therefore,
Fetterly v. Paskett, 997 F.2d 1295 (9th
Cir.1993), which holds that a state's
failure to follow its own death penalty
procedures can in some cases raise a federal
issue, is inapposite: here there was no
state failure. Nor is Sec. 190.3(b) void for
vagueness, as Williams
also contends. See Pulley v. Harris, 465
U.S. 37, 51-54, 104 S.Ct. 871, 879-81, 79
L.Ed.2d 29 (1984).
that it was error to read to the jury the
entire list of factors the state considered
relevant to the sentencing decision, even
when some did not apply. To the contrary,
the jury instructions expressly indicated
that the jury was to consider each factor
only "if applicable."
"[i]t seems clear ... that the problem [of
jury inexperience] will be alleviated if the
jury is given guidance regarding the factors
about the crime and the defendant that the
State, representing organized society, deems
particularly relevant to the sentencing
decision." Gregg v. Georgia, 428 U.S. 153,
192, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859
(1976) (plurality opinion). The reading of
the complete list gave the jury more
guidance, not less. We find nothing in the
Constitution prohibiting the very practice
Williams objects to
the giving of a "no sympathy" instruction
during the guilt phase.16
He argues that this instruction necessarily
constricted the jury's interpretation of the
penalty phase instruction allowing
consideration of any extenuating
To the contrary, "no sympathy" instructions
have been held by the Supreme Court to be
consistent with its mandate in Lockett v.
Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978) and Eddings v. Oklahoma, 455 U.S.
104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) that
the sentencer be permitted to consider all
mitigating evidence. California v. Brown,
479 U.S. 538, 541, 107 S.Ct. 837, 839, 93
L.Ed.2d 934 (1987).18
We are not
persuaded by Williams'
suggestion that People v. Easley, 34 Cal.3d
858, 196 Cal.Rptr. 309, 671 P.2d 813 (1983),
should dictate a different result because it
considers the interplay between the "no
sympathy" instruction and the "extenuating
circumstances" instruction. The holding of
Easley is simply that, regardless of any
effect of the latter instruction, the "no
sympathy" instruction violates the Eighth
Amendment. Id. at 878-79, 196 Cal.Rptr. 309,
671 P.2d 813.
conclusion was expressly rejected by the
Supreme Court in Brown. We agree with the
conclusion of the California Supreme Court
that the giving of a no sympathy instruction
during the guilt phase did not result in the
jury being misinformed about its
responsibility to consider all mitigating
evidence. See Brown, 479 U.S. at 546, 107
S.Ct. at 841-42 (O'Connor, J., concurring).
that a short curative instruction by the
trial judge left the jury adrift to consider
nonstatutory aggravating factors without any
guidance. The full text of the instruction,
quoted in Sec. VI, makes clear no error
reading the list of potentially relevant
statutory factors, the court explained that,
contrary to an earlier prosecutorial
argument, the jury was not required to weigh
aggravating and mitigating factors, and was
not under obligation to find for life or
death based on which factors predominated.
Such an instruction violates no right of
capital sentencer need not be instructed how
to weigh any particular fact in the capital
sentencing decision." Tuilaepa v.
California, --- U.S. ----, ----, 114 S.Ct.
2630, 2638, 129 L.Ed.2d 750 (1994).
that several prosecutorial comments deprived
him of constitutional rights. Because none
of the comments were objected to
contemporaneously, we review only for plain
error, error that is highly prejudicial and
affects substantial rights. United States v.
Dischner, 974 F.2d 1502, 1515 (9th
Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 1290, 122 L.Ed.2d 682 (1993).
finds error in three comments. First, the
prosecutor listed each Sec. 190.3 factor.
Again, we find no error in identifying for
the jury the spectrum of factors the state
considers relevant to the sentencing
decision. Second, describing one of the
factors (victim participation), the
prosecutor said, "I don't mean to insult
your intelligence, but its a factor, it's
either an aggravating or a mitigating
prosecutor then went on to argue how victim
participation or consent was absent in this
case. This did not require the jury to
construe the absence of a mitigating factor
as an aggravating factor, rather than simply
a mitigating factor not present. In any
event, the jury was instructed to only
consider each factor "if applicable."
the prosecutor asked the jury, "How do you
add these up?" and argued that it "shall"
impose death if the aggravating factors
outweighed the mitigating circumstances. Any
error here was cured by the instruction
given by the trial court quoted above, which
made clear that the jury was neither
required to weigh nor stripped of discretion
over what consequences should follow from
any weighing it did.19
that the state trial court considered
numerous improper factors in declining to
sentence. All factors considered were either
permissible or harmless error.
During California's penalty
phase, "evidence presented at any prior
phase of the trial" may be considered.
Cal.Penal Code Sec. 190.4(d). Under the 1977
statute, while the jury was to consider and
be guided by the factors listed in Sec.
190.3, it thereafter could "consider any
other matter it thought relevant to the
penalty determination." People v. Boyd, 38
Cal.3d 762, 773, 215 Cal.Rptr. 1, 700 P.2d
782 (1985); accord Harris, 692 F.2d at 1194.
jury reached a sentence of death, the trial
judge was required to "review the evidence,
consider, take into account, and be guided
by the aggravating and mitigating
circumstances referred to in Section 190.3,
and ... make an independent determination as
to whether the weight of the evidence
supports the jury's findings and verdict."
Cal.Penal Code Sec. 190.4(e).
Williams offers a
litany of factors he believes the trial
judge impermissibly considered in denying
modification of his sentence. None of these
considerations is reversible error. In
reviewing the motion for modification, the
trial judge worked through each of the
considered the fact that Meza was required
to submit to sex, but this was not error
both because evidence certainly supported
this conclusion, and because the jury's
finding the rape special circumstance untrue
did not mean they found she had not been
The judge's consideration of
commitment to the Youth Authority was error,
as the state concedes, but it was harmless;
in light of the numerous other
considerations mentioned in his four-page
ruling, the judge surely would have ruled
the same way without considering it. The
judge considered the shots
Williams fired during the camper
incident; again, even if this was error, it
would not have affected his ruling.
demeanor was evidence the jury and judge
could both consider, United States v.
Schuler, 813 F.2d 978, 981 n. 3 (9th
Cir.1987), and as noted above, the 1977
statute does not limit consideration in
reviewing the evidence to just the statutory
aggravating factors. The judge's
consideration of the victim's consent (or
not) and any justification (or not) for the
crime was directly authorized by statute.
Cal.Penal Code Secs. 190.3(d)-(e).
dislike of Mexicans as an explanation for
the killings; Williams
admitted on the stand that "I don't like
Mexicans, period." RT 4/4/79 at 1320.
Finally, contrary to
Williams' contentions, the trial
judge expressly indicated that he had
considered all evidence received during the
trial. This necessarily includes the
mitigating evidence of diminished capacity
that the trial judge in effect considered
several invalid aggravating factors,
requiring reweighing under Stringer and
Richmond. To the contrary, the 1977 death
penalty statute allows consideration of
nonstatutory factors. Harris, 692 F.2d at
1194. This the judge did. We find no error.
three aspects of the district court
proceedings: the form of the answer filed by
respondent, the delay in deciding
Williams' case, and
the refusal of the district court to grant a
broader evidentiary hearing. We find no
the adequacy of respondent Calderon's answer
to his habeas petition, contending that
because that answer failed to comply with
Rule 5 of the Rules Governing Sec. 2254
Cases, 28 U.S.C. foll. Sec. 2254, the answer
should be stricken and this case returned to
the district court for the filing of a new
answer. We disagree with both
and his conclusion.
answer to a petition is ordered pursuant to
Rule 4, Rule 5 requires "[t]he answer [to]
respond to the allegations of the petition."
The purpose of the answer is to frame the
issues in dispute, as well as to ferret out
unmeritorious petitions. See Advisory
Committee Notes to Rule 5. Neither Rule 5,
nor the Advisory Notes, nor subsequent case
law set out any further restrictions on the
form of the answer, unlike Federal Rules of
Civil Procedure 8(b) and 8(d), which require
about Calderon's answer violated Rule 5. The
answer responded to the petition on the
merits, laying out the state's alternative
view of the facts and the law. Nothing in
Rule 5 prohibits the form used to frame the
legal and factual issues. Moreover, to the
extent that the answer failed to adequately
frame the issues for the district court, any
harm became irrelevant once the district
court issued a final decision. If
Williams has a
grievance, it must be with that decision,
not the filings that preceded it.
argues that the 26-month delay before the
district court finally denied his petition
violated his due process rights. We disagree.
Williams relies on
Carter v. Thomas, 527 F.2d 1332 (5th
Cir.1976) for the proposition that long
delays in habeas processing may violate due
process. We have never decided to follow
Carter, see Satterlee v. Kritzman, 626 F.2d
682, 683 (9th Cir.1980), and in any event,
Carter holds only that constitutional
immunity should not be extended to "extreme
and unreasonable delays." Carter, 527 F.2d
not take this occasion to decide whether a
Carter claim could exist in this circuit. In
light of the magnitude of
Williams' petition and the mortal
interests at stake, the district court's
delay in this case was neither extreme nor
unreasonable. In addition,
Williams has offered no evidence that
the delay was discriminatory or purposeful.
See Prantil v. California, 843 F.2d 314, 319
(9th Cir.), cert. denied, 488 U.S. 861, 109
S.Ct. 158, 102 L.Ed.2d 129 (1988).
that on at least seven claims, the district
court erred in declining to provide an
Williams has not established that he
was entitled to a hearing on any of these
petitioner is entitled to an evidentiary
hearing on a claim if '(1) the petitioner's
allegations, if proved, would entitle him to
relief, and (2) the state court trier of
fact has not, after a full and fair hearing,
reliably found the relevant facts.' "
Hendricks v. Vasquez, 974 F.2d 1099, 1103
(9th Cir.1992). No hearing is required if "there
are no disputed facts and the claim presents
a purely legal question." Id.
Williams seeks a
hearing on his claims of ineffective
assistance, deprivation of psychiatric
assistance and dual appointment of
psychiatrists, counsel conflict of interest,
denial of change of venue and meaningful
voir dire, and failure to request an
contended vigorously at oral argument that,
at the least, he should receive an
evidentiary hearing on his ineffective
assistance of counsel claim in light of
Hendricks and Siripongs v. Calderon, 35 F.3d
1308 (9th Cir.1994), cert. denied, --- U.S.
----, 115 S.Ct. 1175, 130 L.Ed.2d 1127
(1995). We are not persuaded. The district
court denied Williams
a hearing, presumably because it concluded
that, even taking all
Williams' allegations of cause as
could still not establish prejudice. We
contends that the district court could only
deny an evidentiary hearing if it made a
credibility determination that
who said he was suffering from diminished
capacity, were not worthy of belief. However,
in reviewing Williams'
Strickland claim, we must ask, not whether
from diminished capacity, but instead
whether, taking the experts' testimony as
true, introduction of the testimony of one
of them 15 years ago might have made a
difference. That latter question requires no
credibility determinations, and it is that
latter question which we answered firmly in
the negative when we rejected the Strickland
claim on the merits.
Nor do we
find anything in Siripongs inconsistent with
the denial of a hearing in this case.
Siripongs does not establish a per se rule
requiring an evidentiary hearing whenever a
petitioner has made out a "colorable claim"
of cause. It recognizes only that where such
a claim has been made out, it is "generally
likely" that a hearing will be required on
the issue of prejudice. Siripongs, 35 F.3d
at 1315; accord Hendricks, 974 F.2d at 1110.
Here, in light of the evidence introduced at
trial, we can and have concluded that there
is no reasonable probability a different
outcome would have resulted. Accordingly,
failed to make out a " 'colorable' claim of
ineffective assistance," id. at 1314 (quoting
Smith v. McCormick, 914 F.2d 1153, 1170 (9th
Cir.1990)), he was properly denied a hearing.
Williams' other six
claims was also properly denied without a
hearing. The district court could conclude,
without resolving disputed facts not found
by the state court, that no claim for relief
was stated by any of the other claims for
sought a hearing.
four different ways in which the death
penalty scheme in effect in California
between 1977 and 1978 violated the Eighth
and Fourteenth Amendments. Each of his
contentions has previously been rejected by
this court or the Supreme Court. We reaffirm
these prior holdings.
penalty statute's failure to label
aggravating and mitigating factors is
constitutional. Harris v. Pulley, 692 F.2d
1189, 1194 (9th Cir.1982). The statute
offers constitutionally-sufficient guidance
to jurors to prevent arbitrary and
capricious application. Pulley v. Harris,
465 U.S. 37, 51-54, 104 S.Ct. 871, 879-81,
79 L.Ed.2d 29 (1984). The statute ensures
meaningful appellate review, California v.
Brown, 479 U.S. 538, 543, 107 S.Ct. 837,
840, 93 L.Ed.2d 934 (1987), and need not
require written jury findings in order to be
constitutional. Harris, 692 F.2d at 1195-96.
Finally, the failure of the statute to
require a specific finding that death is
beyond a reasonable doubt the appropriate
penalty does not render it unconstitutional.
Id. at 1195.
considered separately or together, the
errors in Keith
Williams' trial did
not affect its outcome.
Williams did not receive a perfect
trial, but he did receive a fair one. He was
entitled to no more. Brown v. United States,
411 U.S. 223, 231-32, 93 S.Ct. 1565,
1570-71, 36 L.Ed.2d 208 (1973). We affirm
the district court's denial of the writ.
At the time, a group of
five adults was living at the Tysons',
Robert Tyson, Karen Tyson (Robert Tyson's
common-law wife), Cindy
ex-wife), and "Betsy" (Cindy's cousin)
Williams also mentions in passing,
without explication or argument, numerous
other alleged defects in counsel's
performance. To the extent that this
discussion properly preserved these issues
on appeal, the district court addressed them
817 F.Supp. at 1463-70, 1473-78
Furthermore, we applaud
the district court's decision to rest its
decision on this basis. An unfortunate
offshoot of death penalty litigation has
been the recurrent demonization of prior
counsel--no doubt sometimes justly, but
sometimes not--through the inevitable filing
of Strickland claims. Death penalty counsel,
whether trial or appellate, face the most
demanding challenges the profession has to
offer. Wade v. Calderon, 29 F.3d 1312, 1333
(9th Cir.1994) (Reinhardt, J., concurring),
cert. denied, --- U.S. ----, 115 S.Ct. 923,
130 L.Ed.2d 802 (1995). Reviewing their
performance years later is never easy. If
the absence of prejudice can be clearly
established, we do well to decline the
enterprise. See Strickland, 466 U.S. at 697,
104 S.Ct. at 2069 ("The object of an
ineffectiveness claim is not to grade
counsel's performance. If it is easier to
dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice ...
that course should be followed. Courts
should strive to ensure that ineffectiveness
claims not become so burdensome to defense
counsel that the entire criminal justice
system suffers as a result.")
This fact also defeats
that R. Howard rendered ineffective
assistance by failing to object to the
giving of a M'Naghten insanity instruction.
Absent any evidence of insanity, the error
cannot create a reasonable probability of a
Counsel did in fact rely
heavily on a diminished capacity defense,
but the evidence introduced related almost
exclusively to diminished capacity arising
out of Williams'
ingestion of drugs and alcohol, rather than
All references in this
opinion are to California's former Sec. 190,
in effect from August 1977 until November
the murders in a taped confession played for
So, we went up there [to the Vargases'
farmhouse] and, uh, went in--first there was
a bunch of people there. We had something to
drink. We was drinkin' and stuff and, uh, we
left and (yawn) went back about a half-hour
later, everybody was gone except for, uh,
these two dudes and this chick. Uh, killed
these two dudes upstairs in the bedroom.
Q [Officer]: Who killed
A: I did.
Q: You did. Well, how did--how
did you do that?
A: Well, we went to the
door. Bob threw down on them when we went to
the door and I was still on the outside and
he went in. The dude, the chick's old man
was downstairs, he's the one who answered
Q: Which one was he? The
smaller one or the bigger one?
A: I don't know, he was
just a Mexican.
Q: Just a Mexican.
A: We backed 'em up. I
went upstairs and the chick and the dude was
upstairs, the chick was in the bathroom, the
dude was coming out of the bedroom, and I
put him--both down on the ground on the
landing there and then I called Bob, had him
bring the other dude up, and told Bob to go
down and take care of the chick. So he took
her downstairs. I killed the two Mexicans
upstairs, walked down and Bob, he couldn't--he
couldn't kill her. So I started to shoot her
there, but, it was, like he was getting all
freaked out and everything so I told him to
grab her ... and we left.
Q: How long were you with
[Meza] before you went back to the car?
A: A minute, time to walk
up there, shoot her, turn around and walk
back. The reason I didn't, cause, I was
gonna shoot Bob cause of the way he was
acting and way he was doing things, he was
just, you know, the dude was freakin' out on
me and everything. I had full intentions of
Q: Up there?
A: Yeah. So I was gonna
shoot him too. And the dude started
sniveling and crying and started telling me,
I don't know, a bunch of shit, find that
weak ... you know, and I threw down the gun
when I went back to the car, I started
talking to him through the open window and
the dude started sniveling and crying and
shit. I just got, you know, I was mad, and I
just got in the car and took off. We went
back to his house and, uh, I split.
Q: When you went up there,
did you put her right down or something or
did you, was she standing up when you shot
A: No. She was down. I
just put her down and I shot her in the back
of the head.
Q: How many times did you
This version is the most
consistent with L. Howard's testimony and is
probably the closest to the truth. Howard
testified that he had no contact with Tyson
prior to bringing him to Merced, and had
only a short conversation after doing so,
during which he made no "solid promises."
For instance, in his
taped confession, Williams
said that he wanted to shoot Meza at the
farmhouse, but Tyson started to "freak[ ]
out," so they took her with them
As a further reflection
of this possible dual interpretation, the
Supreme Court has described a weighing state
as a state in which "the death penalty may
be imposed only where specified aggravating
circumstances outweigh all mitigating
circumstances." Parker v. Dugger, 498 U.S.
308, 318, 111 S.Ct. 731, 738, 112 L.Ed.2d
812 (1991). The central test may be that 1)
weighing is required, 2) only "specified
aggravating circumstances" are considered,
See, e.g., Lawhorn v.
State, 581 So.2d 1159, 1176 (Ala.Crim.App.1990)
(Ala.Code Secs. 13A-5-46 to -49 (1994)),
aff'd, Ex parte Lawhorn, 581 So.2d 1179
(Ala.1991); Richmond v. Lewis, --- U.S.
----, ---- - ----, 113 S.Ct. 528, 534-35,
121 L.Ed.2d 411 (1992) (Ariz.Rev.Stat.Ann.
Sec. 13-703 (1994)); Ford v. Lockhart, 861
F.Supp. 1447, 1453 (E.D.Ark.1994) (Ark.Code
Ann. Secs. 5-4-602 to -604 (1994)); People
v. White, 870 P.2d 424, 447-49 (Colo.) (Colo.Rev.Stat.
Sec. 16-11-103 (1994)), cert. denied, ---
U.S. ----, 115 S.Ct. 127, 130 L.Ed.2d 71
(1994); Parker v. Dugger, 498 U.S. 308, 318,
111 S.Ct. 731, 737-38, 112 L.Ed.2d 812
(1991) (Fla.Stat.Ann. Sec. 921.141 (West
1995)); Bellmore v. State, 602 N.E.2d 111,
129-30 (Ind.1992) (Ind.Code Ann. Sec.
35-50-2-9 (West 1994)); Stringer v. Black,
503 U.S. 222, 229-30, 112 S.Ct. 1130, 1136,
117 L.Ed.2d 367 (1992) (Miss.Code Ann. Sec.
99-19-101 (1993)); State v. Reeves, 239 Neb.
419, 476 N.W.2d 829, 836 (1991) (Neb.Rev.Stat.
Secs. 29-2522 to 29-2523 (1993)), cert.
denied, --- U.S. ----, 113 S.Ct. 114, 121
L.Ed.2d 71 (1992); Canape v. State, 109 Nev.
864, 859 P.2d 1023, 1031-35 (1993) (Nev.Rev.Stat.
Secs. 200.030, 200.033 (1993)), cert. denied,
--- U.S. ----, 115 S.Ct. 176, 130 L.Ed.2d
112 (1994); State v. Henderson, 109 N.M.
655, 789 P.2d 603, 609-10 (1990) (N.M.Stat.Ann.
Secs. 31-20A-2, 31-20A-5 (1994)); Smith v.
Dixon, 14 F.3d 956, 974 (4th Cir.) (en banc)
(N.C.Gen.Stat. Sec. 15A-2000 (1994)), cert.
denied, --- U.S. ----, 115 S.Ct. 129, 130
L.Ed.2d 72 (1994); State v. Davis, 38 Ohio
St.3d 361, 528 N.E.2d 925, 933 n. 11 (1988)
(Ohio Rev.Code Ann. Secs. 2929.03-.04
(Anderson 1993)), cert. denied, 488 U.S.
1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989);
Stafford v. Saffle, 34 F.3d 1557, 1568 (10th
Cir.1994) (Okla.Stat.Ann. Secs. 701.10-.12 (West
1995)), petition for cert. filed, Mar. 10,
1995; Commonwealth v. Holcomb, 508 Pa. 425,
498 A.2d 833, 849-51 & n. 16 (1985) (42
Pa.Cons.Stat.Ann. Sec. 9711 (1994)), cert.
denied, 475 U.S. 1150, 106 S.Ct. 1804, 90
L.Ed.2d 349 (1986); State v. Howell, 868 S.W.2d
238, 259-62 (Tenn.1993) (Tenn.Code Ann. Sec.
39-13-204 (1994)), cert. denied, --- U.S.
----, 114 S.Ct. 1339, 127 L.Ed.2d 687
(1994); State v. Archuleta, 850 P.2d 1232,
1247-48 (Utah) (Utah Code Ann. Secs.
76-3-207, 76-5-202 (1994), as interpreted by
State v. Pierre, 572 P.2d 1338, 1347-48
(Utah 1977)), cert. denied, --- U.S. ----,
114 S.Ct. 476, 126 L.Ed.2d 427 (1993); Zant
v. Stephens, 462 U.S. 862, 874 n. 12, 103
S.Ct. 2733, 2741 n. 12, 77 L.Ed.2d 235
(1983) (Wyo.Stat. Sec. 6-2-102 (1988), as
interpreted by Hopkinson v. State, 632 P.2d
79, 171 (Wyo.1981), cert. denied, 455 U.S.
922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982))
See, e.g., Zant v.
Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77
L.Ed.2d 235 (1983) (Ga.Code Ann. Sec.
17-10-30 (Michie 1994)); People v. Todd, 154
Ill.2d 57, 180 Ill.Dec. 676, 684-85, 607 N.E.2d
1189, 1197-98 (1992) (720 Ill.Comp.Stat.Ann.
Sec. 5/9-1 (1994)), cert. denied, --- U.S.
----, 114 S.Ct. 381, 126 L.Ed.2d 331 (1993);
Wilson v. Commonwealth, 836 S.W.2d 872, 891
(Ky.1992) (Ky.Rev.Stat.Ann. Sec. 532.025 (Michie/Bobbs-Merrill
1994)), cert. denied, --- U.S. ----, 113
S.Ct. 1857, 123 L.Ed.2d 479 (1993); Ward v.
Whitley, 21 F.3d 1355, 1365 (5th Cir.1994) (La.Code
Crim.Proc.Ann. art. 905.3-.4 (West 1994)),
cert. denied, --- U.S. ----, 115 S.Ct. 1257,
131 L.Ed.2d 137 (1995); Briley v. Bass, 742
F.2d 155, 166 (4th Cir.) (Va.Code Ann. Secs.
19.2-264.2, 19.2-264.4 (Michie 1994)), cert.
denied, 469 U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d
For instance, Delaware,
Idaho and Missouri have regimes which
require weighing but do not limit
consideration to statutory aggravating
factors. See Del.Code Ann. tit. 11, Sec.
4209 (1994); Idaho Code Sec. 19-2515 (1994)
(as interpreted by State v. Creech, 105
Idaho 362, 670 P.2d 463, 470-71 (1983), cert.
denied, 465 U.S. 1051, 104 S.Ct. 1327, 79
L.Ed.2d 722 (1984)); Mo.Ann.Stat. Secs.
565.030, 565.032 (Vernon 1994). Idaho has
been treated as a weighing state because of
the explicit procedural constraint, while
Delaware and Missouri have been treated as
nonweighing states in light of the absence
of substantive constraints. See Beam v.
Paskett, 3 F.3d 1301, 1311 (9th Cir.1993),
cert. denied sub nom. Arave v. Beam, ---
U.S. ----, 114 S.Ct. 1631, 128 L.Ed.2d 354
(1994); State v. LaRette, 648 S.W.2d 96, 102
(Mo.), cert. denied, 464 U.S. 908, 104 S.Ct.
262, 78 L.Ed.2d 246 (1983); Bailey v.
Snyder, 855 F.Supp. 1392, 1408-10 (D.Del.1993)
Six years earlier, the
California Supreme Court described the
1977's law's guidance provision as "essentially
equivalent to the provision in the valid
Florida statute requiring the sentencing
authority to 'weigh' those factors in
reaching its decision." People v. Frierson,
25 Cal.3d 142, 180, 158 Cal.Rptr. 281, 599
P.2d 587 (1979). Reading this language in
context, however, we do not find it at all
at odds with Boyd's later explanation of the
statute. Frierson does not interpret the
statute as requiring weighing; it concludes,
rather, that the statute provides a level of
guidance comparable to that of Florida, and
therefore, "the 1977 death penalty law is
not constitutionally vulnerable because of
its failure to provide a different method of
proving or weighing the relevant statutory
considerations specified therein." Id.
Frierson thus does not dispute that the 1977
law "fail[s] to provide" for weighing. See
also id. at 192 & n. 6, 158 Cal.Rptr. 281,
599 P.2d 587 (Mosk, J., concurring) (noting
that "our statute does not require the
sentencing authority to expressly find ...
that the aggravating circumstances in fact
outweigh the mitigating circumstances," a
requirement only added in 1978)
Cal.Penal Code Sec.
190.3(b) directs consideration of "[t]he
presence or absence of criminal activity by
the defendant which involved the use or
attempted use of force or violence or the
express or implied threat to use force or
The instructions read,
"In performing this duty [deciding the facts]
you must not be influenced by pity for a
defendant or by passion or prejudice against
him." RT 4/5/79 at 1402. The jury was
further instructed that they "must not be
governed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion,
or public feeling" during their sentencing
deliberations. RT 4/5/79 at 1402
This instruction asked
the jury to consider, if applicable, "Any
other circumstance which extenuates the
gravity of the crime even though it is not a
legal excuse for the crime." RT 4/11/79 at
The "no sympathy"
instruction at issue was identical to the
one given in this case, although the
additional "no pity" instruction was not at
issue. Brown, 479 U.S. at 539, 107 S.Ct. at
To the extent
Williams means to
also incorporate by reference the other
claims he made before the district court
regarding improper prosecutorial comment,
these other claims were properly rejected
for the reasons stated in the district
court's opinion. Williams,
817 F.Supp. at 1488-90
As the California Supreme
Court correctly noted, they could have found
the rape was not sufficiently
contemporaneous with the murder, as the jury
instruction seemed to require.
Williams, 44 Cal.3d
at 929, 245 Cal.Rptr. 336, 751 P.2d 395.
Consequently, nothing in the jury's findings
foreclosed consideration of a possible rape