filed: September 2, 1993; As Amended November 16, 1993.
On Remand from the United States Supreme Court. D.C. No. CV-89-1114-HLH. Original Opinion Reported at:,.
Before: Dorothy W. Nelson, Robert Boochever, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Reinhardt.
AMENDED OPINION AND ORDER
REINHARDT, Circuit Judge:
In 1983, the petitioner, Albert Ray Beam, and Michael Shawn Scroggins were charged with the rape and murder of thirteen-year old Mondi Lenten. Each of the defendants, during the course of the proceedings, attempted to place the blame for the crime on the other, and a central issue in the case was which of the two was primarily responsible for the murder. For this reason, each defendant was represented by separate counsel. They were, however, tried jointly. Concerned that each defendant's statements, which inculpated the other, would not be admissible in the other's trial under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), the state requested the court to empanel two juries to hear the case - the juries to sit simultaneously when issues relevant to both defendants were introduced and separately otherwise. The state trial Judge, Edward J. Lodge, granted the request. Thus, for example, when testimony probative as to Beam but prejudicial as to Scroggins was introduced or Beam's counsel would cross-examine a witness, Scroggins' jury would be excused - and vice versa. Separate opening and closing arguments were given before each jury.
Beam's jury found Beam guilty of premeditated first degree murder and rape. Scroggins' jury convicted Scroggins of first degree murder, finding that he aided and abetted the crime but did not commit it directly, and also convicted him of attempted rape. Both defendants were acquitted on the separate enhancement charge of using a deadly weapon in the commission of a crime.
The trial Judge sentenced Beam to death for murder and to 30 years in prison for rape. He sentenced Scroggins to death for murder and to ten years in prison for attempted rape. In Beam's case, he relied on three statutory aggravating circumstances: the murder was "especially heinous, atrocious, cruel and manifested exceptional depravity"; the defendant "exhibited utter disregard for human life"; and the defendant "exhibited a propensity to commit murder which will probably constitute a continuing threat to society."
Both defendants appealed to the Idaho Supreme Court. Beam's conviction and sentence were upheld in State v. Beam, 109 Idaho 616, 710 P.2d 526 (Idaho 1985), cert. denied, 476 U.S. 1153, 90 L. Ed. 2d 704, 106 S. Ct. 2260 (1986). The sentence of death in Scroggins' case was reversed, however. See State v. Scroggins, 110 Idaho 380, 716 P.2d 1152, 1161 (Idaho 1985), cert. denied, 479 U.S. 989, 93 L. Ed. 2d 585, 107 S. Ct. 582 (1986). The state court held that, in light of the fact that Scroggins did not personally commit the crime, did not have a history of violent criminal conduct, had barely reached the age of majority, and came from a troubled family, his sentence was disproportionate to the sentences of other Idaho capital defendants. See id. at 1159-60. Scroggins' case was remanded to the state trial court for resentencing.
Judge Lodge recused himself from presiding over Scroggins' resentencing. First, he expressed disagreement with the Idaho Supreme Court's disparate treatment of Beam and Scroggins, stating that the actions of the two defendants were "equivalent" and that "the record in this case supports the Conclusion that any disparity between Scroggins' and Beam's participation is a distinction with little difference." Next, he stated that "reasonable minds could not differ" about the fact that Scroggins deserved to die. Finally, reviewing the sentencing alternatives remaining in Scroggins' case - "a fixed sentence without chance of parole, with costs running between $28.00 and $55.00 per day, or a life sentence with eligibility of parole in ten years" - he concluded that none was "reasonable or acceptable to the conscience of this court." Accordingly, Judge Lodge determined to have no "further involvement in these matters." Scroggins was then resentenced by a different Judge.
Following Scroggins' resentencing, Beam filed a petition for post-conviction relief and a motion for a reduction of his sentence, raising a number of constitutional issues. In addition, Beam moved to disqualify Judge Lodge from sitting in the post-conviction and sentence reduction proceedings. Judge Lodge summarily denied the disqualification motion and then rejected Beam's claims for relief. The Idaho Supreme Court affirmed. See State v. Beam, 115 Idaho 208, 766 P.2d 678 (Idaho 1988), cert. denied, 489 U.S. 1073, 103 L. Ed. 2d 827, 109 S. Ct. 1360 (1989).
Beam then filed a petition for writ of habeas corpus in the United States District Court for the District of Idaho. His petition was denied. See Beam v. Paskett, 744 F. Supp. 958 (D. Idaho 1990). On appeal, we affirmed his conviction but vacated his death sentence. See Beam v. Paskett (Beam I), 966 F.2d 1563 (9th Cir. 1992). We did so after holding that the "utter disregard" factor was unconstitutionally vague, relying primarily on Creech v. Arave, 947 F.2d 873 (9th Cir. 1991). Last term, the United States Supreme Court reversed Creech, see Arave v. Creech, 123 L. Ed. 2d 188, 113 S. Ct. 1534 (1993), vacated our judgment, and remanded the case for further reconsideration. See Arave v. Beam, 123 L. Ed. 2d 464, 113 S. Ct. 1837 (1993). On remand, we again affirm Beam's conviction and again vacate his death sentence. It is, however, only the latter that we have reconsidered.
I. The Constitutionality of Beam's Conviction
Beam contends that the use of dual juries during the simultaneous trial of Scroggins and himself violated his rights under the Fifth, Sixth and Fourteenth Amendment. In the absence of prejudice to the defendant, courts have on some occasions allowed the use of dual juries in non-capital cases. United States v. Sidman, 470 F.2d 1158, 1169-70 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 35 L. Ed. 2d 260, 93 S. Ct. 948 (1973); see also Smith v. DeRobertis, 758 F.2d 1151, 1152 (7th Cir.), cert. denied, 474 U.S. 838 (1985); United States v. Lewis, 230 U.S. App. D.C. 212, 716 F.2d 16, 19 (D.C. Cir.), cert. denied, 469 U.S. 996 (1983). We have never considered the question in connection with a capital case, but a number of courts have expressed serious reservations regarding the use of dual juries in any but the simplest of trials, see, e.g., Scarborough v. State, 50 Md. App. 276, 437 A.2d 672, 674-76 (Md. App. 1981); State v. Corsi, 86 N.J. 172, 430 A.2d 210 (N.J. 1981). Our affirmance in Sidman was qualified by the statement that "our holding is not to be read as an endorsement of the 'experiment' that was carried out in this case," 470 F.2d at 1170.
We need not determine here whether use of a dual jury in a case resulting in capital punishment would be a ground for invalidating a conviction. Because we vacate Beam's death sentence on other grounds, we do not subject his trial to the exacting constitutional scrutiny required when a defendant's life will be taken. Although there are some procedural requirements that are imposed on capital trials regardless of the actual sentence received by the defendant, see, e.g., Wiggerfall v. Jones, 918 F.2d 1544, 1548-50 (11th Cir. 1990), we believe that the level of constitutional scrutiny given to the state's use of a dual jury procedure is determined by the nature of the punishment the defendant will actually suffer rather than by the potential that existed at the outset of the trial. The dual jury procedure introduces additional complexity and likelihood of error into the trial and thereby impairs a defendant's ability to conduct his defense. For this reason, a dual jury verdict is inherently more dubious than an ordinary verdict - even in the absence of a showing of specific prejudice. The degree of unreliability is not dependent, however, upon whether the trial is a capital one or not. Cf. Beck v. Alabama, 447 U.S. 625, 642-43, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980) (stating that jury verdicts following a failure to give a lesser included offense instruction are inherently more suspect in capital than non-capital trials). Whatever additional constitutional constraints exist on the use of dual juries in capital trials would be a consequence of the greater reliability demanded of verdicts upon which a sentence of death is based, and not upon any additional uncertainty created by the fact that the trial is capital in nature. Because we vacate Beam's death sentence, we analyze his challenge to the dual jury system under the standards applicable in non-capital cases.
We do not believe that the use of dual juries in a non-capital case is by itself grounds for reversal in a habeas case. Although we were careful not to sanction the continued use of dual juries when we affirmed a dual jury conviction in Sidman, 470 F.2d at 1170, our review of a state court conviction is ordinarily limited to violations of federal constitutional law; we may not exercise our supervisory powers in such a context, see Estelle v. McGuire, 116 L. Ed. 2d 385, 112 S. Ct. 475, 482 (1991); Cupp v. Naughten, 414 U.S. 141, 146, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973). Thus, while it is possible that we would disapprove such a procedure as "inappropriate" if used by a federal district court, cf. United States v. Alvarado, 838 F.2d 311, 316 (9th Cir.) (holding that the district Judge committed error by using an "inappropriate" jury instruction), cert. denied, 487 U.S. 1222, 101 L. Ed. 2d 915, 108 S. Ct. 2880 (1988), we will affirm a state court dual jury verdict unless it violates the Constitution - specifically, we will affirm such a verdict (that does not serve as the basis for the defendant's execution) unless the defendant can demonstrate that he was prejudiced by the use of the procedure. See Smith, 758 F.2d at 1152.
The issue, therefore, is whether Beam was prejudiced by the use of the dual juries. The district court determined that he was not. We agree. There is no indication in the record before us that Beam's defense was hampered or the prosecutor's case unfairly strengthened by the state's use of the dual jury trial.*fn1 We therefore reject Beam's challenge to the dual jury verdict in this case.*fn2
II. The Constitutionality of Beam's Death Sentence
Beam was sentenced to death pursuant to Idaho Code § 19-2515. Under this section, a person convicted of a capital offense may not be sentenced to death unless the court finds that at least one statutory aggravating circumstance is present. See Idaho Code § 19-2515(c). If the court finds such a circumstance, it "shall sentence the defendant to death unless [it] finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust." Id. Subsection (g) lists 10 statutory aggravating circumstances. See Idaho Code § 19-2515(g)(1-10).
The state court found three aggravating circumstances in Beam's case. First, it found that "the murder was especially heinous, atrocious, cruel and manifested exceptional depravity." (Idaho Code § 19-2515(g)(5)). Next, it found that "the defendant exhibited utter disregard for human life." (§ (g)(6)). Finally, it found that the defendant "has exhibited a propensity to commit murder which will probably constitute a continuing threat to society." (§ (g)(8)). Having found the requisite statutory aggravating factors, the court then sentenced Beam to death, stating that "it is clear from the record and the facts of this case that the mitigating circumstances do not outweigh the gravity of the aggravating circumstances so as to make unjust the imposition of the death penalty."
We must determine whether Beam's death sentence is constitutional in light of the trial court's application of the above statutory provisions.
A. The "Utter Disregard" Factor
In Beam I, we determined that one of the three statutory aggravating factors found to be present in Beam's case - that "the defendant exhibited utter disregard for human life" - was unconstitutionally vague. See Beam I, 966 F.2d at 1574-75. We relied principally upon Creech v. Arave, 947 F.2d 873 (9th Cir. 1991). Last term, the Supreme Court reversed Creech and held that the "utter disregard" factor as construed by the Idaho Supreme Court was not unconstitutionally vague. See Creech, 113 S. Ct. at 1544-45. The Court then remanded this case for further consideration. See Beam, 113 S. Ct. at 1837. We are of course bound by the Supreme Court's ...