argued submitted san francisco california: March 8, 1993.
Appeal from the United States District Court for the District of Nevada. D.C. No. CV-86-00303-ECR. Edward C. Reed, Jr., District Judge, Presiding.
Before: Alfred T. Goodwin, John T. Noonan, Jr. and Thomas G. Nelson, Circuit Judges. Opinion by Judge Noonan; Concurrence by Judge T.g. Nelson.
Convicted of murder in the first degree and sentenced to life imprisonment without the possibility of parole, Warren Robert Standen seeks a writ of habeas corpus. At his trial his original plea of guilty, which he had lawfully withdrawn, was introduced by the prosecution, and the jury was instructed by the court that the plea could be considered as evidence against Standen. We hold that this instruction deprived Standen of due process of law and had a substantial and injurious effect in determining the verdict of the jury. We therefore order that the writ issue.
The evidence presented by the prosecution showed the following:
Kaylyn Danner lived in Reno, Nevada in a trailer with her three children, ages 14, 11 and 10. She had been separated from her husband for four months. On the evening of January 31, 1978 her husband came to see her at the trailer. He left about 10:00 p.m.
Kaylyn Danner visited her friend Jeannie Sweet at approximately 11:00 p.m. She was due to begin the night shift at midnight at the Monte Carlo Casino on Sixth Street, Reno, about a seven minute drive from Sweet's residence. She left Jeannie Sweet for the casino at approximately 11:40 p.m. No witness saw her alive again.
Kaylyn Danner's body was found the next day, February 1. It lay on a turnoff from a dirt road in Sparks, Nevada, 5.7 miles east of the Monte Carlo Casino. The area at this date was not built up. The area was unlighted at night.
Kaylyn Danner had been stabbed in the back with a knife fifteen times; stabbed six times in the chest; deeply scratched on the face; and cut on her hands. Her throat had been slit. The hour of death could not be ascertained.
The body was partly clothed. Semen, not older than 48 hours, was in her vagina, but the medical examiner did not detect trauma to her genitals and was unable to say that she had been raped. Her lifeless fingers clutched her office key. Near the body were her boots, papers apparently dumped from her purse, and the broken cover of the domelight of a car, later determined to be hers. A .22 caliber handgun she carried in the glove compartment, her credit card, and a little cash disappeared and were never found.
On the night of the murder a householder at a distance observed the tail lights of two cars pull into the turnoff on January 31 - one at about 6:00 p.m., one at about 10:30 p.m. The tail lights went out. He saw no more.
Two to three miles from where the body was found was Sierra Sid's 76 Truck Stop. The yellow Camaro Kaylyn Danner had been driving was found in the zone reserved for trucks at Sierra Sid's. The car's domelight had been broken. Blood had splattered the interior, a windowscraper, one window, and the hood. Kaylyn Danner's purse, pants, pantyhose, and panties were in the back seat.
Three days later, on February 4, a search with Explorer Scouts, high school students used as police auxiliaries, found a trucker's logbook 5 to 7 feet off a dirt road. The logbook was discovered either 998 feet or 3500 feet from where the body had been found (different distances being supplied by the same witness). The book, a green notebook with snaps, contained the name of an employer, City of Fun Carnivals, and of a trucker working for City of Fun, Warren Standen. The entries in the logbook ended in November 1977, except for the telephone number of the Eldorado Motel, Reno and the name "Larry, Larry, Larry." The book had only three, indecipherable fingerprints.
Standen was an itinerant carnival worker, originally from Rome, New York. He had an IQ of 65. He had worked for City of Fun Carnivals as a laborer, ride operator, and driver in October-November, 1977; his logbook reflected his trips for this enterprise. On January 24, 1978 he flew from Chicago to Reno and checked into the Holiday Inn on Sixth Street. He checked out at 1:32 p.m., January 31, 1978.
The Holiday Inn is adjacent to the Monte Carlo Casino. The manager on duty the evening of the 31st was familiar with Standen because he had sought refunds on American Express travellers' checks. She noticed him, apparently waiting for someone, in the lobby of the Holiday Inn between 11:20 p.m. and 11:40 p.m. He was wearing an overcoat or raincoat and was carrying an object that may have been his logbook.
Standen was next observed at Sierra Sid's in Sparks. The time was approximately 12:20 a.m., February 1. He used a telephone at Sierra Sid's to call a cab. He looked well-groomed, not like a man who just had been in a fight. According to Betty Johnson, the casino manager at Sierra Sid's, "He was clean and attractive-looking, like he was going out on a date or something." The cabdriver, Kevin Ryan, entered Sierra Sid's to pick him up. Standen got into the cab and sat in the front seat, making no effort to avoid being seen. He looked neat and composed. Ryan recognized him as a passenger he had had before and whom he had telephoned at the Holiday Inn in an effort by Ryan to arrange a 24-mile roundtrip to the Mustang Ranch, a legal brothel. According to Ryan's first statement to the police, Standen was not wearing a coat nor carrying any objects; at trial he remembered nothing about Standen's clothes until his first statement was read back to him.
Three minutes into the ride Standen asked Ryan to return to the truck stop. According to Ryan's first statement to the police, Standen said he had forgotten that he was supposed to meet someone at the truck stop. According to Ryan's trial testimony, Standen said he had forgotten something. Standen re-entered Sierra Sid's and asked if anyone had seen a logbook, then went to look for it in the restaurant. He did not ask the cab to wait. His subsequent movements that night are not known, but eventually on February 1 he checked into another Reno motel, the B-J.
A warrant was issued for Standen's arrest for murder. On July 19, 1978 he was apprehended in a jail in Monroe County, New York, under the alias of Larry Mattson. In the course of the journey back to Nevada for trial, Standen told the deputies that he had not committed the crime; that they had only his logbook ("now I know where it went to"); that he would make an ass out of the district attorney; that he knew who had committed the murder and would not be a snitch yet he would reveal the name after his own conviction; and that if they found the man who used Larry Mattson's credit card, they would "find the guy you're looking for." Standen had the credit card on his person along with other papers identifying him as Larry Mattson.
Larry Mattson was a businessman from Klamath, Oregon who had been in Reno on January 31, 1978. He testified that his wallet, his credit card, driver's license, and pilot's license "came up missing" on this date. He believed the loss must have occurred after noon on the 31st as he had used the card to check into the Eldorado Motel. He checked out on February 1st, apparently not using the card again. He reported the credit card loss to the credit card company on February 7th and to the police on February 13.
The credit card had been used since its disappearance. On February 1 it was used to check two men (one later determined to be Standen) into the B-J Motel. On February 4 it was used to buy two bus tickets from Reno to Las Vegas. It was then used in Las Vegas to check two men into the Hotel Nevada; Standen was one of them. The next day the card was used to rent a car. The signature of Larry Mattson was forged on all these credit slips by a hand that could not be identified.
The trail of forged slips led to Bellingham, Washington, where Standen made a half-hearted attempt to sell the rented car. Thereafter the card was used and the Mattson signature forged by Standen. On February 17, 1979 the car was abandoned in Florida. When Standen was apprehended in New York he still had the Mattson card and papers.
The semen found in Kaylyn Danner's vagina indicated the donor was a Type A secretor. Standen has Type A blood as does 32 percent of the male population of the United States. Pubic hairs found in Danner's undergarments were consistent with specimens provided by Standen. Hairs found in the back seat of the Camaro were consistent with hairs from his head.
On September 24, 1978 a complaint charging "open murder" was read to Standen. An open murder charge does not apprise the accused of the elements of the crime nor that it is murder in the first degree. An information charging the same offense was read to him on November 2, 1978, and he pleaded not guilty. In January 1979 the state filed notice of its intention to seek the death penalty. Negotiations for a plea ensued. On ...