Douglas Edward GRETZLER
Characteristics: Crime spree -
Number of victims: 9 - 17
Date of murders: October-November 1973
Date of birth:
Victims profile: Men and
Method of murder:
Location: Arizona/California, USA
by lethal injection in Arizona on June 3,
On November 3, 1973, Gretzler and
Willie Luther Steelman forced Michael Sandberg at gunpoint from the
parking lot of his condominium complex into his home in Tucson,
where his wife, Patricia, was studying. They bound and gagged the
When night fell, Gretzler shot Michael Sandberg, who was
bound and lying on the bed. He then shot Patricia Sandberg in the
head, as she lay bound on the living room couch. Steelman fired
another shot into her body. Gretzler and Steelman then took the
Sandbergs' credit cards, checks, a camera, and their car, and left
In California, the police apprehended Gretzler
and Steelman, ending a crime spree that resulted in the deaths of at
least nine people. Steelman was also convicted of first-degree
murder and sentenced to death. He died in prison in 1987.
Presiding Judge: William E. Druke
Prosecutors: David G. Dingeldine (trial and sentencing) Lynn
Start of Trial: October 14, 1975
Verdict: November 5, 1975
Sentencing: November 15, 1976
Resentencing: October 23, 1981
Prior convictions punishable by life imprisonment
Prior convictions involving violence
None sufficient to call for leniency
State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023
State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983).
Six fried eggs over easy, four strips
of bacon (chewy), two slices of white bread toast (buttered), one
cup of real coffee, two Classic Cokes over ice.
In Florence, a man who admitted killing 17
people in California and Arizona in 1973 apologized to the families
of his victims moments before he was executed by lethal injection at
a Florence, Arizona, prison.
Just before his execution, 47-year-old
Douglas Gretzler said, "From the bottom of my soul, I am so
deeply sorry and have been for years for murdering Patricia
and Michael Sandberg. Though I am being executed for that
crime, I apologize to all 17 victims and their families."
Gretzler's sister and 4 members of the victims'
families were among about 3-dozen witnesses to the execution. In a
statement, the family of Lodi, Calif., murder victim Walter
Parkin said, "Hopefully this will bring some closure to a very
sad chapter in our lives."
Gretzler's victims were shot to death, with
most bound and gagged before they were killed.
Gretzler received a life prison sentence for
the killings in California because California didn't have the death
penalty at the time, and was extradited then to Arizona where he was
sentenced to death. His co-defendant, Willie Steelman, died while on
Douglas Gretzler was 25 when he was sentenced to death for murdering
a Tucson couple during a spree of 17 killings in California and
Arizona, in the early 1970s. He spent 7 years appealing his sentence
in Arizona courts; for the past 14 years, his case has been tied up
in federal courts.
After the US Supreme Court refused to hear his appeal in Jan.,
Gretzler, now 46, moved 1 step closer to his date with fate. He has
been on death row for 21 years--longer than any other Arizona inmate
Assistant Attorney General Paul McMurdie said, "if you are going to
have a death penalty, it is tailor-made for Douglas Gretzler."
Gretzler has been locked up since 1973, when California police
arrested him and his partner, Willie Luther Steelman, for the murder
of 9 people, including 2 children, in the Lodi, Calif., area.
At the time of their capture, the men were driving a stolen car with
Arizona license tags. Police traced the car to a condominium in
Tucson where they found the decomposing bodies of University of
Arizona students Michael and Patricia Sandberg. The couple, who had
recently told their families they planned to have a baby, had been
bound, gagged and shot to death.
Steelman and Gretzler, who had already killed 6 people in Arizona,
were hiding from police in the Sandbergs' home. Steelman said that
he and Gretzler decided to kill the couple because they intended to
steal the Sandbergs' car and did not want to leave any witnesses.
Both victims were then shot in the head.
Gretzler, who received a life sentence for the California slayings,
was sentenced to death for killing the Sandbergs after a sensational
trial that was moved to Prescott, Ariz., because of the commotion
the murders caused in Tucson. Steelman, who was tried in St. Johns,
Ariz., also was sentenced to death; he died of liver disease after
10 years on death row.
Now, more than 2 decades later, Gretzler still awaits execution, and
some lawyers and judges say that is simply too long to sit on death
row. Carla Ryan, a Tucson attorney who helped Gretzler get a stay of
execution in 1983, said she objects to capital punishment under all
circumstances, even for murderers who confess to killing 17 people.
She also represented Steelman from 1983 until his death in 1986.
Ryan said, "I just don't think it's just for the government to kill
anybody. These people should not be outside of prison walls but they
should not be executed." Judge Betty Fletcher of the 9th US Circuit
Court of Appeals in San Francisco said that executing someone after
20 years defeats the purpose of capital punishment, adding that she
does not "see the penalogical purpose of it."
Fletcher was the lone dissenter in a ruling earlier this year that
denied a stay of execution for Jose Ceja, a convicted killer who had
been on death row in Arizona for 23 years. In that case, Fletcher
wrote "if Ceja is executed, his de facto sentence will be 23 years
of solitary confinement in the most horrible portion of the prison
-- death row-- followed by execution. There has never been such a
sentence imposed in this country--or any other to my knowledge.
Neither Arizona nor any other state would ever enact a law calling
for such a punishment."
Ceja was finally executed, thus giving Gretzler the dubious
distinction of having the longest stay on Arizona's death row.
Fletcher said that although her dissent was directed toward Ceja's
case, the argument she laid out in her 26-page dissent applies to
anyone who has had to endure the "cruel and unusual punishment" of a
prolonged stay on death row. She did not, however, specify how long
is too long.
McMurdie, however, said federal judges, including Fletcher are
directly responsible for most of the delays and said that "I can't
imagine a more hypocritical statement" of Fletcher's dissent. Since
Arizona enacted the death penalty in 1973, Arizona courts have taken
an average of 6 years to move capital punishment cases on to federal
courts. In that same time, federal courts have taken an average of
10 years to review the same cases.
McMurdie said, "there is no secret to the animosity expressed,
especially on the part of some members of the federal judiciary,
toward the use of capital punishment. He added that the 9th Circuit
is notorious for dragging its feet on cases that call for the death
penalty. Arizona has executed 9 condemned killers since resuming
capital punishment in 1992 after a 29-year hiatus; the state still
has 121 condemned prisoners on the state's death row.
Gretzler & William Steelman
A native of the Bronx, born in 1951, Doug
Gretzler was drifting aimlessly around the country when he met 28-year-old
Willie Steelman on October 11, 1973. Once committed to a mental
institution, Steelman had compiled a lengthy record of arrests
around Lodi, California, serving prison time on conviction of
forgery. He recognized a kindred soul on sight, and soon the men
became inseparable, trolling the Southwest in their search for
victims , stealing to finance their travels and Steelman's heroin
On October 28, 1973, they invaded a house trailer
near Mesa, Arizona, binding l9-year-old Robert Robbins and 18-year-old
Katherine Mestiter, then shooting both victims to death. Drifting
into Tucson, they killed 19-year-old Gilbert Sierra and dumped his
body in the desert, doubling back to murder Michael and Patricia
Sandberg in their Tucson apartment. On the Superstition Desert,
Gretzler and Steelman found victim number six, leaving his body in
the sleeping bag where he was shot to death. In Phoenix, the killers
abducted Michael Adshade and Ken Unrein, both 22, dumping their nude
bodies in a creek bed near Oakdale, California, rolling north in
their stolen van.
Authorities in Arizona had already issued
warrants for Gretzler and Steelman by the time they reached Victor,
California, 40 miles south of Sacramento, on November 6. Walter and
Joanne Parkin went bowling that night, leaving their two children --
Lisa, 11, and Robert, 9 -- in the care of 18-year-old neighbor Debra
Earl. In the course of the evening, Debra's parents dropped by to
visit, along with brother Richard and her fiancee, 20-year-old Mark
Lang. When the Parkins got home, they found a full house --
including two strangers with guns.
Carol Jenkins, a house guest of the Parkins,
returned from a date around 3 a.m. and went directly to bed, taking
the silent house for granted at that hour of the morning. Near dawn,
she was roused from sleep by two friends of Mark Lang, who had spent
the night trying to find him. Jenkins started a search of her own,
stopping short when she found Walter and Joanne Parkin in the master
bedroom, shot to death execution-style.
Deputies responding to the call found seven more
bodies jammed in the bedroom's walk-in closet. Victims had been
gagged with neckties, bound with nylon cord -- secured with as many
as six knots in places -- before they were massacred. In all,
medical examiners would remove 25 slugs from nine bodies, plus one
stray from Bob Parkin's pillow.
Police published mug shots of Steelman, and
Willie was recognized when he checked into a Sacramento hotel on
November 8. Police descended on the scene and both gunmen were
swiftly arrested, booked on nine charges of first-degree murder.
Gretzler cracked under interrogation, directing police to the
scattered bodies of other victims while Steelman kept silent,
refusing to enter a plea on the charges. In June 1974, Gretzler pled
guilty to nine counts of murder, while Steelman submitted his case
to a judge and was promptly convicted. On July 8, both defendants
were sentenced to life imprisonment without parole.
Gretzler & Steelman
By Katherine Ramsland - Trutv.com
Another team who chanced to meet while drifting
aimlessly around the country were Doug Gretzler and William Luther
Steelman. Willie was 28 and Doug 22 when they met. Steelman had once
been committed to a mental institution, and when he met Gretzler,
the stage was set for a spree unlike the Southwest had ever seen
It started on October 28, 1973, when the two men
entered a house trailer in Mesa, Arizona and shot to death the
adolescent couple who lived there. Then they traveled to Tucson and
killed a young man, leaving his body in the desert before returning
to the city to murder another couple in their apartment. As they
left and drove into the desert, they found a man in a sleeping bag
and killed him as well. In Phoenix, they grabbed two more young men,
stripped and killed them, leaving their bodies in California.
Arizona authorities knew who they were looking
for and quickly issued warrants.
On November 6, this spree-killing team hit again,
but this time with nine victims all at once. They went to a house
where an 18-year-old girl was baby-sitting Walter and Joanne
Parkin's two children. The sitter's parents had dropped by, along
with her brother and fiancé, and then the Parkins came home. The
killers shot them all, leaving the Parkin couple in their bed and
stuffing the rest of the bodies into a closet. Collectively, these
nine people were shot 25 times.
Two days later, the killers were apprehended at a
motel. Gretzler cracked, describing the other crimes and where all
the bodies were. Convicted in trials in two states, they were
sentenced to die in Arizona. Steelman died in prison. Gretzler was
executed in 1998.
Murder in California
Monday, Nov. 19, 1973
Walter and Joanne Parkin were one
of the most popular young couples in the hamlet of
Victor (pop. 275), a cluster of buildings along
Route 12 about 40 miles south of Sacramento. Wally
Parkin, 32, ran the local supermarket, giving credit
to hard-up farm workers and even hiring some of the
members of one family that could not pay its bills.
When the Parkins began to build their new, redwood-paneled
house, friends and neighbors just naturally pitched
in on the job. That is the way life is in that part
of the San Joaquin Valley.
On Tuesday night last week, as
usual, the Parkins went bowling, leaving their two
children, Lisa, 11, and Bob, 9, in the care of
Debbie Earl, 18, a neighbor's daughter who had come
over to baby-sit. Sometime during the evening,
Debbie's parents, Richard, 38, and Wanda Earl, 37,
and Brother Ricky, 15, came by to visit, along with
her boy friend, Mark Lang, 20. When the Parkins came
home, they were all still there —and so, the police
were later to charge, were two uninvited men.
Carol Jenkins, a house guest of
the Parkins, recalled that she arrived home at 3 a.m.,
found the house utterly quiet, and went to bed. It
was barely daybreak when Carol was awakened by two
friends of Mark Lang who were anxiously searching
for him; his parents were worried because he had not
come home the night before. Looking through the
house, Carol walked into the main bedroom—and ran
out screaming. Bob and Lisa Parkin were lying on the
bed. Each had been shot through the head.
Hidden in the Closet. Later, one
of the investigating deputy sheriffs cautiously
pushed open the door of the walk-in closet of the
bedroom and found a horrifying sight. Bunched on the
floor were seven bodies—the two Parkins and the Earl
couple, plus Debbie Earl, her boy friend and her
brother. Their arms and legs were bound with nylon
cord sometimes clinched with as many as six knots
and they were gagged with knotted ties. Each had
been shot in the neck or head with a small-caliber
pistol. Some had taken longer to die than others.
Debbie had been hit by four slugs, her father by
five. In all, 25 bullets were recovered from the
bodies, plus one from the pillow of Bob Parkin.
The manhunt quickly zeroed in on
two men who were wanted for a double murder, in
which similar techniques had been used, that had
been committed in Arizona in October. One of the men
was a 22-year-old drifter from The Bronx named
Douglas Gretzler, and the other was Willie Steelman,
28, who lived near Victor. Steelman, who had once
been briefly confined in a mental hospital, had a
long record of scrapes with the law and had served
time in prison for forgery.
After police released pictures of
Steelman to the press, a hotel desk clerk in
Sacramento recognized him when he and Gretzler
checked in. Gretzler was arrested in the hotel by
police armed with shotguns, and Steelman was later
apprehended in a nearby building.
Gretzler and Steelman were
charged with nine counts of first-degree murder.
They also came under suspicion for a total of five
slayings in Arizona, and police wanted to talk to
them about four missing persons in the region.
The killings were
only the latest in a grisly series
of six mass murders that have taken
the lives of 64 people in California
during the past four years. The day
after Gretzler and Steelman were
arrested, Edmund Emil Kemper III,
who stands 6 ft. 9 in. and weighs
280 Ibs., was sentenced to life
imprisonment for his most recent
murders. When he was 15, Kemper
killed his grandparents but later
was released from a California state
mental hospital, whereupon he began
murdering a series of student
hitchhikers. He ended by killing his
mother Kemper decapitated seven of
his eight victims, including his
nears end of quest to understand the man who murdered his relatives
By Beth Quinn - The Mail Tribune
Jack Earl has a date with death.
He'll be in the execution chamber when the state
of Arizona kills Douglas Edward Gretzler, who murdered 17 people in
a 13-day rampage in 1973.
Among Gretzler's victims were Earl's favorite
uncle, his aunt and two cousins. Seven years ago, the Medford
resident started writing a book about their murderer.
"I realized quick that this wasn't about having
my name on the front page. It was about my aunt and uncle. It was
about me and Doug Gretzler," he says. "I became a collector of his
Despite his opposition to the death penalty in
general and Gretzler's execution in particular, Earl plans to watch
"I have taken this thing so far. I have
sacrificed money and time and, oh hell, my marriage," he says. "To
not see it through, I might regret it someday."
Killing spree's motive unknown
Gretzler, 22, and Willie Luther Steelman, 28,
capped their murderous rampage across Arizona and California by
pumping 26 bullets into Earl's family and five others in a Lodi,
Calif., ranch house on Nov. 6, 1973.
On the way to the funeral a few days later, Earl
studied the throng of reporters, photographers and cameramen
pressing against the barricades that lined the motorcade route, a
media mob drawn by a sensational killing spree that took 17 lives.
"It dawned on me -- the magnitude of this -- and
yet we didn't know why," he says.
Earl was certain there was a reason behind the
slaughter of his family and 13 others, and he said as much to his
"One day it will come out. We'll find out why,"
he told her. "Someday there'll be movie done, or somebody will write
But for years the reason didn't come out. The
killers plea-bargained in California, and no trial was held. And the
media mob melted away long before the Arizona trials that delivered
death sentences for Gretzler and Steelman.
"It was like a dream. There was never any reason,"
Earl says. "They were buried on Monday. Tuesday we all went our
No movie was made. And no one wrote a book until
Earl himself picked up a pen in 1991. The story he began writing
then will finally end at 3 p.m. on Wednesday, when Gretzler is
scheduled to die by lethal injection in Florence, Ariz.
Midlife crisis, midlife quest
After the funerals, Earl and what was left of his
family got on with their lives.
"I can't even say that I spent tons of time
thinking about it. It wasn't like I went to the trials and consumed
myself with it," he says. "It was done and it was over."
Earl moved to Medford in 1978 and eventually
opened a copy shop, working alongside his wife and raising their two
children. But by 1991 he'd turned 40, his marriage was in trouble,
the business was struggling and his father was ill.
"It was just one of those moments when you sit
down and say, `What have I done with my life? Why am I here in this
place?"' he recalls.
Then his sister gave him a binder filled with
police reports about one of the six murders Gretzler and Steelman
committed in Arizona. Days after those killings, they headed to
California where, by pure chance, they wound up killing Earl's
"One night I just opened up the binder and
started reading. It was just like stepping back in time," he says.
"My aunt and uncle were still alive at this time. I knew what was
going to happen. I wanted to jump into those pages and warn them."
In the intervening years, Steelman had died of
liver disease on Arizona's death row and Gretzler's appeals had
reached the U.S. Supreme Court. Earl's sister wanted him to help her
write and sell a book about the murders.
So he went to California and Arizona to gather
information and interview people. And he started to write. But as
his manuscript grew fatter, the idea of selling the book grew less
"I never looked at it as a commercial piece. It
was just something I had to do. Like painting the picture, playing
What was important was finding out everything he
could about Gretzler.
Parallel lives, diverging paths
As far back as 1973, when Doug Gretzler was
captured peacefully in Sacramento, Earl had been struck by the youth
of the mass murderer who wiped out his relatives.
"I was just a few months younger than him, and
that's the thing that blew me away. I just had this picture that
these were some kind of Mafia hit men," he says. "We led almost
parallel lives -- me on the West Coast, he in the East."
By poring over stacks of documents and
interviewing hundreds of people -- cops, prosecutors, judges, jurors,
and families and friends of both victims and murderers -- Earl's
collection of knowledge about Gretzler grew.
"Everything was a revelation. I got down there
and it just became almost more than I could bear. I had to step on
every piece of ground where he stepped," he says. "It was out of
He created elaborate time lines to reconstruct
the killing spree, figuring out exact locations for all the key
players -- killers, victims, cops -- as the bloody events unfolded.
"I had to have all the little things that came
together. I couldn't feel comfortable until I had every little piece
of the puzzle."
Even today, Earl rattles off with ease the names
of long-dead judges, prosecutors and detectives. Gretzler killed in
nine separate murderous episodes, and each set of investigators
concerned themselves only with the crimes committed in their
jurisdictions. But Earl's obsession with Gretzler led him to dig
"I put it all together," he says.
He may be the only man alive besides Gretzler who
knows the full story of those deadly days. And he found three key
factors to explain why a boy from an affluent New York City family
became a stone killer.
Guilt, speed and Steelman
Gretzler had grown up the younger son of a father
who adored his first-born, Mark. But then Mark, the golden boy, got
into serious trouble at school for stealing a test and sharing it
with his friends.
"He had shamed his father, and his dad let him
know it," Earl says.
One evening as his family ate dinner downstairs,
Mark went upstairs, took a gun and killed himself.
"As usual, Doug's father blamed him. Mark was the
fair-haired boy, and Doug was the bastard child," he says. "And his
father said, `Why Mark? Why couldn't it have been you?"'
When his older brother killed himself, Doug
Gretzler was 15 and had dabbled in drugs for two years. By the time
he met Willie Steelman at a drug party in Denver seven years later,
Gretzler was hard-core, and methamphetamine was his drug of choice.
Taken separately, Earl figures Gretzler and
Steelman were each just drugged-out drifters looking to get loaded.
But together, they made a lethal combination.
"They could do in that third person what neither
of them could do as an individual," he says. "Steelman didn't have
the guts to pull the trigger on anyone. Gretzler never had the
Steelman was a braggart, talking big about
imaginary mob connections. But in Gretzler he found a partner who
could turn talk into action, especially his plan to rip off drug
"The energy was immediate. Each filled a void in
the other. Steelman was looking for an equal in this drug deal,"
Earl says. "Gretzler was looking to disappear. He was looking for
unconsciousness. He was looking for someone to make the decisions
from here on out."
Steelman came up with a two-part pact for their
criminal venture: Back my play, and no witnesses. He figured out
what to steal, how to score and whom to kill, making sure to keep
his partner, Gretzler, well-supplied with drugs.
"Willie kept him loaded, and he appreciated it,"
To show his appreciation, Doug Gretzler killed
for Steelman. At the ranch house in Lodi, Steelman had reminded him,
"No witnesses." Gretzler responded by snuffing out nine lives in a
matter of seconds.
"Without even thinking. Because that was easier
for Doug at the time," Earl says. "When I met him, that was the one
thing he felt he had to explain to me -- that it went quick."
Death row, death house
Douglas Edward Gretzler has been on Arizona's
death row 22 years, longer than any other prisoner.
Jack Earl has documented the killer's life since
1991, amassing hundreds of manuscript pages.
For both men, the final chapter will be written
on Wednesday when Gretzler moves from death row to the death house
and becomes the nation's first murderer in memory to be executed in
daylight. His appointment with death was set for the convenience of
Supreme Court judges, who are often awakened in the middle of the
night with last-minute appeals. But no one expects clemency.
Until 1986, Gretzler stayed loaded because drugs
aren't hard to get on death row. By the time Earl met him in 1992,
the killer had gotten clean and told him, "I have affected people's
lives I will never even know."
The condemned man has spent the last few months
writing letters that will be mailed after his death.
"There's a letter for all the victims. He's
written a letter to everybody he could find," Earl says.
There's a letter for him, too, but Earl long ago
found the answers he sought. His crisis is over.
However reluctantly, he'll be there when the
lethal brew flows into the veins of the man who killed his relatives.
"I didn't need to see him die," he says. "I
didn't want to see him die. It's useless."
As Jack Earl collected the fragments of Douglas
Edward Gretzler's wasted life, he learned how to forgive.
"I understand. Have you ever told a lie that you
can't take back and it eats at you? Figure killing 17," Earl says.
"He wakes up every morning thinking about what he has done. It is
with him 24 hours a day. He will never hurt anyone again."
112 F.3d 992
Douglas Edward Gretzler, Petitioner-appellant,
Terry L. Stewart, Director of the Arizona Department Of Corrections,
United States Court of Appeals for the Ninth
Argued and Submitted Sept. 27, 1996.
Decided April 30, 1997
Appeal from the
United States District Court for the District of
Arizona, Richard M. Bilby, Chief Judge, Presiding.
D.C. No. CV-85-00537-RMB.
PREGERSON, and LEAVY, Circuit Judges.
Gretzler, an Arizona prison inmate currently under a
state court sentence of death, appeals from the
district court's denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We have
jurisdiction over this appeal pursuant to 28 U.S.C.
§§ 1291 and 2253, and we affirm.
FACTS AND PRIOR PROCEEDINGS
underlying facts are largely undisputed and were
adequately summarized by the Supreme Court of
In late December of 1972,
Gretzler abandoned his wife and infant daughter in
New York City, leaving no word of his intentions or
whereabouts. He drove to Casper, Wyoming, and then
to Denver, Colorado, where he met and moved in with
Willie Steelman and Steelman's sister. At this point,
Gretzler's criminal record consisted of minor
traffic charges and one count of vagrancy.
On 11 October 1973, Gretzler,
Steelman and a woman friend left Denver for Phoenix,
Arizona. In Globe, Arizona, the two men committed an
armed robbery of a sunbathing couple; the robbery
netted them five dollars. Later on the same day,
they picked up a hitchhiker, tied him to a tree and
stole his clothes, a ring and twenty dollars. On 15
October, the trio arrived in Phoenix where they
pawned the ring and robbed a woman of twenty dollars
and some checks.
Shortly after the trio's arrival
in Phoenix, the woman set forth on her own. Steelman
and an Arizona acquaintance known as "Preacher" went
out to settle a drug-related dispute involving
Preacher's brother. Both Preacher and his brother
died in the resulting melee.
Through two young men, Ken Unrein
and Mike Adshade, Gretzler and Steelman learned that
acquaintances of Steelman named Bob Robbins and
Yafah Hacohen were living at an area trailer park.
All four visited the couple. Following the visit,
Gretzler and Steelman kidnapped Unrein and Adshade
in their Volkswagen van and drove to Stanislaus
County, California, where, on 17 October 1973, the
pair garroted and stabbed Unrein and Adshade to
death. They hid the bodies and continued to drive
the Volkswagen until it stopped running, at which
point they began to hitchhike. On 20 October, they
kidnapped a young couple who stopped for them near
Petaluma, California. Steelman raped the woman
captive, but eventually both victims were released
at an underground garage, where Gretzler and
Steelman stole another car.
Concerned that Bob Robbins and
Yafah Hacohen would eventually connect them with the
disappearance of Unrein and Adshade, Gretzler and
Steelman decided to return to Arizona and silence
the couple. On the way to Phoenix, they picked up a
hitchhiker named Steve Loughren. The three stayed
overnight with Robbins and Hacohen; the following
evening, Gretzler and Steelman murdered Loughren in
an isolated area near the Superstition Mountains.
They then returned to their friends' trailer. On 25
October, while Hacohen was at work, they garroted
and shot Robbins to death and hid his body. When
Hacohen returned home, she, too, was murdered.
Gretzler and Steelman then moved
on to Tucson where they shared a "crash pad" with
some local street people. On 2 November, while
hitchhiking with some of their Tucson acquaintances,
they were picked up by Gilbert Sierra, whom they
murdered later that night. They drove the victim's
car to a parking lot, where they wiped their
fingerprints off the vehicle and abandoned it.On 3
November, Gretzler and Steelman kidnapped Vincent
Armstrong who stopped for them while they were again
hitchhiking. Armstrong escaped from his moving car
and notified police of his abduction and the theft
of his vehicle. His captors drove his Pontiac
Firebird to a Tucson condominium complex, where
Michael Sandberg was washing his white Datsun in the
parking lot. They parked the Firebird in an
inconspicuous corner of the lot and forced Sandberg
to take them to his condominium where his wife
Patricia was studying. While in the Sandbergs' home,
Gretzler dyed his blond hair to brown. Both he and
Steelman changed from jeans to slacks and coats
belonging to Michael Sandberg. They bound and gagged
both hostages, Michael on his bed and Patricia on
the living-room couch. When night fell, Gretzler
shot Michael in the head, muffling the gun with a
pillow. He then shot Patricia, who was entirely
covered by a blanket. Steelman took the gun and
fired one more shot into her body, to make certain
she was dead. The two then wiped down the
condominium in an attempt to eliminate their
fingerprints, gathered together credit cards, checks,
a camera and other items belonging to the Sandbergs,
and drove away in the couple's car.
They went to the place where they
had arranged to meet acquaintances with whom they
planned to drive to California. The only person at
the meeting-place was Donald Scott, and the three
set off together. Scott knew that he was riding in a
stolen car, and he testified that he saw Steelman
pay for motel rooms and automobile service with
Michael Sandberg's American Express card. However,
Scott apparently was unaware of his companions'
other crimes. He had been told by then that he was
free to leave them if things became "too much" for
him. Scott did leave when Gretzler and Steelman
stopped for gas in Pine Valley, California. The two
continued to Lodi, California, where they entered
the home of the Walter Parkin family and took as
hostages all present, as well as others who arrived
later. Gretzler and Steelman forced Parkin to open
the safe in his nearby store and stole between
$3,000 and $4,000, of which Gretzler's share was
about half. Afterwards, Gretzler shot to death seven
adults, whom he had previously bound and gagged. He
went to a bedroom where Steelman had pulled a
blanket over the heads of two sleeping children,
shot one of them to death and waited while Steelman
shot the second.
State v. Gretzler,
126 Ariz. 60, 612 P.2d 1023, 1028-30 (1980).
A few days later,
Gretzler and Steelman were arrested in California as
suspects in the Parkin homicides. Upon learning from
California authorities that Gretzler and Steelman
had been driving a car registered to Michael
Sandberg, Tucson police went to the Sandberg home
where they discovered the couple's bodies. Shortly
thereafter, Gretzler confessed to the murders of
Michael and Patricia Sandberg.
guilty in California to nine counts of first degree
murder for the Parkin killings, for which he was
sentenced to nine concurrent terms of life
imprisonment. He and Steelman were then extradited
to Arizona to stand trial for the murders, burglary
and robbery of Michael and Patricia Sandberg, and
for the kidnapping and robbery of Vincent Armstrong.
The jury found Gretzler guilty on all counts.
He was sentenced to death for the two murders, and
to concurrent terms of imprisonment, ranging from
twenty-five to fifty years, on the remaining counts.
Supreme Court affirmed Gretzler's convictions on all
counts, upheld his sentences on the kidnapping,
robbery and burglary counts, but remanded for
resentencing on the two murder counts. State v.
Gretzler, 612 P.2d at 1055. On remand, the trial
court found as aggravating circumstances that (1)
Gretzler had nine prior convictions punishable by
either death or life imprisonment in Arizona, (2)
these nine prior convictions were for crimes of
violence, (3) the two Arizona murders had been
committed for pecuniary gain, and (4) the killings
were especially heinous, cruel, or depraved. The
court found as a mitigating circumstance that
Gretzler had a significantly impaired capacity to
appreciate the wrongfulness of his conduct and/or to
conform his conduct to the requirements of the law,
but rejected Gretzler's contention that the
mitigating circumstance was substantial enough to
warrant a call for leniency. The court resentenced
Gretzler to death on both counts. The sentences were
affirmed on appeal. State v. Gretzler, 135 Ariz. 42,
659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct.
2444, 77 L.Ed.2d 1327 (1983).
Gretzler filed a
petition for post-conviction relief ("PCR") in state
court in 1983. Following a hearing with oral
argument, the trial court denied relief in 1984, and
rejected Gretzler's request for rehearing in 1985.
After the Arizona Supreme Court denied review,
Gretzler filed a second PCR (subsequently amended)
in state court. Shortly thereafter, Gretzler filed
the instant petition for federal habeas relief. The
district court stayed its proceedings pending
resolution of Gretzler's second PCR. In 1986, the
state court denied relief and rehearing in the
second PCR, and the Arizona Supreme Court denied
review in 1987.
The district court
lifted its stay in 1987, and granted a motion for
partial summary judgment in favor of the respondent
the following year. The court again stayed the
proceedings, this time pending resolution of the
appeal in Adamson v. Ricketts, 865 F.2d 1011 (9th
Cir.1988) (en banc), cert. denied sub nom. Lewis v.
Adamson, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d
795 (1990). The district court lifted its second
stay in 1991, and Gretzler filed an amended petition
for writ of habeas corpus in 1992. In his amended
petition, Gretzler raised a total of twenty-six
issues. Following additional briefing by the parties
and a review of the complete state court record, the
district court granted the respondent's motion for
summary judgment and dismissed Gretzler's amended
petition in 1995. Gretzler has timely appealed.
Standard of Review
A district court's
decision to grant summary judgment in favor of the
state respondent in a federal habeas petition is
subject to de novo review. Ceja v. Stewart, 97 F.3d
1246, 1249 (9th Cir.1996).
the following issues on appeal, each of which will
be discussed in turn:
(1) The trial court violated
Gretzler's Eighth and Fourteenth Amendment rights
when it denied him access to psychiatric experts
needed to assist with the defense;
(2) Gretzler was denied his Sixth
Amendment right to the effective assistance of
counsel when his lawyer failed to pursue a
psychiatric or drug intoxication defense;
(3) The trial court violated
Gretzler's Fifth, Sixth, and Fourteenth Amendment
rights when it admitted statements Gretzler had made
to the California authorities after invoking his
(4) The trial court violated
Gretzler's Eighth Amendment rights when it
considered Gretzler's California guilty pleas to
nine counts of first degree murder as death penalty
(5) The trial court and the
Arizona Supreme Court violated Gretzler's Eighth and
Fourteenth Amendment rights when they considered an
unconstitutionally vague circumstance as a death
penalty aggravating factor;
(6) The trial court and the
Arizona Supreme Court violated Gretzler's Fifth
Amendment protection against double jeopardy when
they considered his California convictions as two
death penalty aggravating factors;
(7) The trial court violated
Gretzler's Eighth and Fourteenth Amendment rights
when it failed to require proof of the existence of
aggravating factors beyond a reasonable doubt;
(8) The Arizona Supreme Court
violated Gretzler's Eighth Amendment rights when it
considered non-statutory aggravating factors in its
review of Gretzler's sentence;
(9) The trial court violated
Gretzler's Eighth and Fourteenth Amendment rights
when it considered a pro-death penalty statement
from the father of one of the victims; and
(10) The trial court violated
Gretzler's Fourteenth Amendment rights when it
engaged in ex parte communication with a deputy
prosecutor concerning publicity surrounding the
I. Access to Psychiatric Experts
A. New Rule/Retroactive
Citing Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985), Gretzler argues that he was deprived of his
Eighth and Fourteenth Amendment rights when the
trial court denied him the assistance of a qualified
psychiatrist to help with his defense. Ake holds, in
relevant part, that
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.
470 U.S. at 83,
105 S.Ct. at 1096.
Arizona trial and conviction antedate Ake by ten
years, Gretzler insists that Ake should nevertheless
apply to the facts of his case because the Supreme
Court's holding did not represent a new rule. "A
decision announces a new rule 'if the result was not
dictated by precedent existing at the time the
defendant's conviction became final.' " Harris v.
Vasquez, 949 F.2d 1497, 1518 (9th Cir.1991) (as
amended; quoting Penry v. Lynaugh, 492 U.S. 302,
314, 109 S.Ct. 2934, 2944-45, 106 L.Ed.2d 256
(1989); emphasis in original), cert. denied, 503
U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). "[O]ur
task is to determine whether a state court
considering [Gretzler's] claim at the time his
conviction became final would have felt compelled by
existing precedent to conclude that the rule [Gretzler]
seeks was required by the Constitution." Saffle v.
Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108
L.Ed.2d 415 (1990).
contention that Ake did not announce a new rule, but
was instead a logical and predictable extension of
existing constitutional principles, finds no support
in the law. See United States ex rel. Smith v.
Baldi, 344 U.S. 561, 568, 73 S.Ct. 391, 394-95, 97
L.Ed. 549 (1953) (state had no constitutional duty,
even upon defense request, to appoint psychiatrist
for pretrial examination of defendant's sanity). As
we noted in Harris, "Up to that time [i.e., prior to
1985], without Ake, a state court had no reason to
conclude that a criminal defendant had a
constitutional right to state-funded psychiatric
assistance at any stage of a criminal proceeding."
949 F.2d at 1518. Accordingly, we reject Gretzler's
contention that Ake did not constitute a new rule.
Gretzler argues in
the alternative that, even if Ake did announce a new
rule, that rule should apply retroactively. "Under
Teague [ v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989) ], new rules will not be applied
... in cases on collateral review unless they fall
into one of two exceptions." Graham v. Collins, 506
U.S. 461, 467, 113 S.Ct. 892, 897, 122 L.Ed.2d 260
(1993). This restriction against the retroactive
application of new rules governs capital as well as
non-capital cases. Id.
exception to Teague permits retroactive application
of a new rule that places a class of private conduct
beyond the state's power to prohibit or addresses a
substantive categorical constitutional guarantee,
such as a rule prohibiting a certain category of
punishment." Harris, 949 F.2d at 1519. The first
exception is clearly inapposite.
exception is for 'watershed rules of criminal
procedure' implicating the fundamental fairness and
accuracy of the criminal proceeding." Saffle, 494
U.S. at 495, 110 S.Ct. at 1264 (quoting Teague, 489
U.S. at 311, 109 S.Ct. at 1075-76). This exception
is meant to apply to those procedures without which
the accuracy of a conviction would be seriously
diminished. Butler v. McKellar, 494 U.S. 407, 416,
110 S.Ct. 1212, 1218, 108 L.Ed.2d 347 (1990). As the
Supreme Court recently noted,
Whatever the precise scope of
this exception, it is clearly meant to apply only to
a small core of rules requiring observance of those
procedures that ... are implicit in the concept of
ordered liberty. As the plurality cautioned in
Teague, because we operate from the premise that
such procedures would be so central to an accurate
determination of innocence or guilt, we believe it
unlikely that many such components of basic due
process have yet to emerge.
Graham, 506 U.S.
at 478, 113 S.Ct. at 903 (citations and quotations
We are not
convinced that the right to psychiatric assistance
as expounded in Ake is a "watershed rule of criminal
procedure" lying in that "small core of rules" that
are "implicit in the concept of ordered liberty."
The only Court of Appeals to squarely decide the
issue has reached the same conclusion. See Bassette
v. Thompson, 915 F.2d 932, 938-39 (4th Cir.1990) (Ake
not retroactive; second Teague exception does not
apply), cert. denied, 499 U.S. 982, 111 S.Ct. 1639,
113 L.Ed.2d 734 (1991); see also Stewart v. Gramley,
74 F.3d 132, 134 (7th Cir.) (Ake not retroactive) (dictum),
cert. denied, --- U.S. ----, 117 S.Ct. 113, 136 L.Ed.2d
Further, even if
Ake applied, it would be of no help to Gretzler. Ake
requires that a defendant seeking the appointment of
a psychiatrist make a preliminary showing that his
sanity will likely be a significant issue at trial.
Williams v. Calderon, 52 F.3d 1465, 1473 (9th
Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
937, 133 L.Ed.2d 863 (1996). As discussed more
extensively in Section I.B, infra, Gretzler made no
such showing; the trial court found, based on the
testimony of two psychiatrists, that Gretzler's
sanity was not an issue. The court's decision to
afford no further psychiatric assistance was
therefore not a constitutional violation.
B. Ariz.Rev.Stat. § 13-4013(B)
Ariz.Rev.Stat. § 13-4013(B), Gretzler contends that
he had a protected liberty interest by operation of
state law in a right to the assistance of a
psychiatric expert, and the State improperly
deprived him of that right. Section 13-4013(B)
When a person is charged with a
capital offense the court may on its own initiative
and shall upon application of the defendant and a
showing that the defendant is financially unable to
pay for such services, appoint such investigators
and expert witnesses as are reasonably necessary
adequately to present his defense at trial and at
any subsequent proceeding. Compensation for such
investigators and expert witnesses shall be such
amount as the court in its discretion deems
reasonable and shall be paid by the county.
The State concedes
the first half of Gretzler's argument by
acknowledging that the mandatory language of section
13-4013(B) creates a protected liberty interest and
that due process requires its fulfillment. See
Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct.
864, 871-72, 74 L.Ed.2d 675 (1983). The State denies
that Gretzler was deprived of any due process. The
only question before us, then, is "whether the
process afforded [Gretzler] satisfied the minimum
requirements of the Due Process Clause." Id. at 472,
103 S.Ct. at 871. We conclude that it did.
court's findings on this point bear quotation at
In this case, the trial court
allowed Gretzler and the State to each choose a
psychiatric expert. Gretzler chose Dr. Gurland; the
State chose Dr. Beigel. The Court ordered those
experts to determine whether Gretzler was competent
to stand trial and whether he was sane at the time
of the Sandberg killings. The trial court stated
that it wanted to make sure Gretzler had adequate
psychiatric representation. After hearing the
results, the trial [court] found Gretzler competent
to stand trial.Later, Hoffman [defense counsel]
filed a motion asking the trial court to appoint an
investigator and to appoint psychiatric experts to
determine whether Gretzler, although not insane
under M'Naghten, could be considered a lunatic under
Arizona law; to determine the effects of amphetamine
and cocaine on Gretzler; and to determine Gretzler's
ability to form specific intent. The trial court
granted the motion for the investigator with the
limit of $250 and provided that Hoffman could return
to the court once those funds were exhausted to show
why additional funds were needed. The trial court
took under advisement the request for additional
At a hearing on September 2,
1975, the trial court noted that approximately one
week prior, it had met in chambers with Hoffman and
the prosecutor and telephoned Dr. Beigel, who stated
that it would not have been necessary to have spent
more time with Gretzler in order to give an opinion
on either Gretzler's mental state at the time of the
killings or his competence to stand trial. Dr.
Beigel also stated that further examination would
not assist him in forming an opinion about the
extent of Steelman's control over Gretzler and
whether Gretzler's drug usage would have caused him
to commit acts which he might not have otherwise
Hoffman had discussed those same
questions with Dr. Gurland and had reported to the
trial court that Dr. Gurland likewise had stated
that additional time would not assist him in forming
an opinion on either Gretzler's mental state or
competence to stand trial. Consequently, the trial
court ruled that because Hoffman had presented no
reasonable grounds to indicate that additional
testing would assist the psychiatrists to render an
opinion, it denied the motion for additional mental
Hoffman then requested funds to
travel to California to interview the doctors who
had examined Gretzler. The trial court instructed
Hoffman to telephone the doctors and to report back
to the court with more information. The trial court
reserved further ruling pending Hoffman's
conversations with the doctor. Hoffman spoke with
one of the California doctors, Dr. Peal who was here
in Arizona testifying in Steelman's case. Dr. Peal
told Hoffman that he was willing to examine Gretzler.
Hoffman apparently never told the trial court about
this offer nor sought the funds to obtain Dr. Peal's
C.R. # 124, at
17-19 (internal citations omitted).
Citing such cases
as Ake and Smith v. McCormick, 914 F.2d 1153 (9th
Cir.1990), Gretzler argues that it was not enough
for the trial court to allow the defense and the
State each to select a psychiatric expert to examine
Gretzler and then report their findings to the court
concerning his sanity at the time of the Sandberg
killings and his ability to stand trial: "The right
to psychiatric assistance does not mean the right to
place the report of a 'neutral' psychiatrist before
the court; rather it means the right to use the
services of a psychiatrist in whatever capacity
defense counsel deems appropriate[.]" Smith, 914
F.2d at 1157.
We reject this
line of argument. We have already concluded that Ake
does not apply, and Gretzler's reliance on Smith is
misplaced, as that decision is based entirely on Ake.
Moreover, even "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."
Williams v. Calderon, 52 F.3d 1465, 1473 (9th
Cir.1995) (emphasis in original; citation and
internal quotation omitted), cert. denied, --- U.S.
----, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).
Here, the trial
court did not simply reject Gretzler's request for
the assistance of a psychiatric expert. Rather, the
court held that, if the results of his Rule 11
indicated the likelihood of an insanity defense,
Gretzler could seek such additional assistance.
Based on the testimony of the two psychiatrists, the
court found that Gretzler had been sane at the time
he committed the Sandberg killings and that he was
competent to stand trial. The trial court's exercise
of its discretion in this matter complied with the
requirements of Ariz.Rev.Stat. § 13-4013(B) and did
not constitute a denial of due process.
Cf. Gretzler, 612 P.2d at 1053 (requirements of
Ariz.Rev.Stat. § 13-1673(B) within court's sound
discretion; relying on Mason v. Arizona, 504 F.2d
1345, 1352 (9th Cir.1974) (similar provision under
federal law), cert. denied, 420 U.S. 936, 95 S.Ct.
1145, 43 L.Ed.2d 412 (1975)).
II. Ineffective Assistance of
argues that he was denied his right to the effective
assistance of counsel by virtue of his lawyer's
failure to exercise due diligence in pursuing a
psychiatric or drug intoxication defense. Before we
can proceed to discuss the merits of this contention,
however, we must first determine whether this issue
is even properly before us.
A. Procedural Default
The State insists
that review of this claim is barred because Gretzler
procedurally defaulted when he failed to assert it
in his first post-conviction relief petition. The
general rule with respect to procedural default is
simple and straightforward:
In all cases in which a state
prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a
fundamental miscarriage of justice.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565,
115 L.Ed.2d 640 (1991). This requirement of "an
independent and adequate state procedural rule" is a
strict one: "[F]ederal courts on habeas corpus
review of state prisoner claims ... will presume
that there is no independent and adequate state
ground for a state court decision when ... the
adequacy and independence of any possible state law
ground is not clear from the face of the opinion."
Id. at 734-35, 111 S.Ct. at 2557.
second PCR, the state trial court did not clearly
set forth an independent and adequate state law
basis for rejecting the ineffective assistance claim.
Moreover, the trial court chose to reach the merits
of the claim, and did so by applying federal law.
Finally, the preclusive language of the trial
court's minute entry order appears to apply only to
a single issue, viz., the previously raised Ake
claim, and not to the ineffective assistance claim,
which was not included in the first PCR. Accordingly,
we find no error in the district court's
determination that Gretzler's ineffective assistance
claim was not procedurally barred.
In order to show
that his counsel was ineffective, Gretzler must
demonstrate both deficient performance and resultant
prejudice. See United States v. Ricardo, 78 F.3d
1411, 1418 n. 15 (9th Cir.1996). More specifically,
A defendant claiming ineffective
assistance of counsel must demonstrate that (1)
counsel's actions were outside the wide range of
professionally competent assistance, and (2) that
defendant was prejudiced by reason of counsel's
actions. Strickland v. Washington, 466 U.S. 668,
686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674
(1984). However, to establish such a claim, a
petitioner must overcome the "strong presumption
that counsel's conduct falls within a wide range of
reasonable professional assistance." Id. (citations
United States v.
Baramdyka, 95 F.3d 840, 844 (9th Cir.1996).
On November 21,
1984, the trial court found that Gretzler's attorney
(Hoffman) had failed to exercise due diligence with
respect to the testimony of Doctors Peal and Smith
concerning Gretzler's mental state. Gretzler argues
that this finding not only satisfies the first (deficient
performance) prong of Strickland, but also indicates
a reasonable probability that the results of his
trial would have been different if the testimony on
drug-induced psychosis or insanity had been
introduced, thereby satisfying the second (prejudice)
prong. We disagree.
Whatever may be
said of Hoffman's failure to follow up on Drs. Peal
and Smith, this is clearly not a case in which
counsel conducted no investigations. Moreover, we
must "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action might be
considered sound trial strategy." Strickland, 466
U.S. at 689, 104 S.Ct. at 2065 (citation and
internal quotation omitted).
theory was that Gretzler's mental condition and drug
usage made him a "follower" who would obey whatever
commands Steelman gave him. This strategy was based
on an overriding concern that the facts of
Gretzler's prior bad acts be kept from the jury. The
presentation of this theory, however, depended on
the state of the law as it then existed.
At the time of
Gretzler's trial, evidence of intoxication, whether
induced by alcohol or drugs, was admissible to show
lack of specific intent to commit the crime charged.
State v. Durgin, 110 Ariz. 250, 517 P.2d 1246, 1249
(1974). However, it was also the law at the time of
Gretzler's trial that an expert could not render an
opinion based on facts not in evidence. State v.
Drury, 110 Ariz. 447, 520 P.2d 495, 504 (1974). Thus,
Gretzler might have had to take the witness stand in
order for Hoffman to lay the proper foundation
necessary to get the psychiatrists' testimony before
the jury. Even then, such experts could not have
given opinions concerning whether Gretzler had acted
with specific intent when he killed the Sandbergs.
See State v. Christensen, 129 Ariz. 32, 628 P.2d
580, 583-84 (1981). Moreover, any testimony Dr. Peal
would have given concerning Gretzler's alleged
insanity at the time of the crimes would have been
countered by the State submitting the testimony of
Drs. Austin, Beigel, Gurland, and Rogerson, all of
whom would have said that Gretzler was sane under
M'Naghten. Finally, all of Gretzler's prior bad acts
could have been admissible had he presented a
defense of either lack of specific intent due to
drug usage or insanity. See State v. Neal, 143 Ariz.
93, 692 P.2d 272, 280 (1984).
circumstances, it is difficult to believe that the
outcome of Gretzler's trial would have been
different if the jury had heard about the brutal
deaths of fifteen other people as detailed in
Gretzler's confessions. Accordingly, we find no
error in the district court's conclusion that
Gretzler failed to satisfy both prongs of the
III. Admission of Custodial
argument is that the trial court violated his Fifth,
Sixth and Fourteenth Amendment rights when it
admitted into evidence certain statements he made
that were obtained in violation of the standards set
forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981). While conceding that
Edwards does not apply retroactively, Gretzler
contends that retroactivity is not at issue; i.e.,
although his judgment of conviction had been
affirmed by the Arizona Supreme Court more than a
year before Edwards was decided, that conviction was
not yet final because the Arizona Supreme Court had
remanded for resentencing, and his resentencing was
not affirmed until January 6, 1983, and the Supreme
Court did not deny certiorari until May 31, 1983,
some two years after Edwards. We reject this
position as finding no support in the law.
The Supreme Court
has said that, "By 'final,' we mean a case in which
a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a
petition for certiorari elapsed or a petition for
certiorari finally denied." Griffith v. Kentucky,
479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93
L.Ed.2d 649 (1987) (citing United States v. Johnson,
457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 2583 n. 8,
73 L.Ed.2d 202 (1982) and Linkletter v. Walker, 381
U.S. 618, 622 n. 5, 85 S.Ct. 1731, 1734 n. 5, 14
L.Ed.2d 601 (1965)). Where a judgment of conviction
has been upheld by a state's highest tribunal and
the vacation of a sentence is on grounds wholly
unrelated to the conduct of the trial, that
conviction is final for purposes of retroactivity
analysis. United States v. Judge, 944 F.2d 523, 526
(9th Cir.1991), cert. denied, 504 U.S. 927, 112 S.Ct.
1988, 118 L.Ed.2d 585 (1992); United States v. Baron,
721 F.Supp. 259, 261 (D.Haw.1989). Accord Richardson
v. Gramley, 998 F.2d 463, 464 (7th Cir.1993), cert.
denied, 510 U.S. 1119, 114 S.Ct. 1072, 127 L.Ed.2d
judgment of conviction had been affirmed on direct
appeal, and the time in which he could have filed a
petition for writ of certiorari to the Supreme Court
had elapsed months before Edwards. The fact that he
chose not to file a petition for writ of certiorari
in 1980 is irrelevant. As the State notes, Edwards
himself, in the very case upon which Gretzler now
relies, obtained relief from the Supreme Court of
the United States, even though the Arizona Supreme
Court had affirmed his judgment of conviction but
remanded for resentencing for the identical reason
it remanded Gretzler's case. See State v. Edwards,
122 Ariz. 206, 594 P.2d 72, 82 (1979), cert. granted
sub nom. Edwards v. Arizona, 446 U.S. 950, 100 S.Ct.
2915, 64 L.Ed.2d 807 (1980), rev'd, 451 U.S. 477,
101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Even if we were to
agree with Gretzler that this argument is properly
before us, we would nevertheless reject his
contention that the trial court's admission of the
statements ran afoul of Edwards. Gretzler made no
unambiguous request for counsel that would have
required the officers to cease questioning him. See
Davis v. United States, 512 U.S. 452, 458-60, 114
S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Moreover,
the record shows that it was Gretzler who insisted
on talking with the detectives, despite admonitions
from his attorney and warnings from the officers
that they could not talk "unofficially" with him.
Gretzler was repeatedly read, and he just as often
waived, his Miranda rights. There was no error.
IV. Consideration of California
argument is that the trial court erred by
considering at sentencing his nine California murder
convictions, arguing that the guilty pleas
underlying those convictions were invalid due to
ineffective assistance of counsel which rendered
them unknowing and involuntary. Citing Custis v.
United States, 511 U.S. 485, 114 S.Ct. 1732, 128
L.Ed.2d 517 (1994), the district court held that
Gretzler could not mount a collateral attack on his
prior convictions because those prior convictions
were not void for Gideon violations.
We believe that
the district court has read Custis too broadly. That
case stands for the proposition that, absent a
Gideon violation, a defendant in a federal
sentencing proceeding has no constitutional right to
attack collaterally the validity of previous state
convictions used to enhance his federal sentence.
511 U.S. at 496, 114 S.Ct. at 1738-39. The
underlying state sentences, however, remain subject
to attack in state court "or through federal habeas
review." Id. at 497, 114 S.Ct. at 1739 (citing
Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923,
1926, 104 L.Ed.2d 540 (1989)). See also Brock v.
Weston, 31 F.3d 887, 890 (9th Cir.1994) ("The
Court's constitutional holding was, as its citation
to Maleng evidences, clearly premised on the fact
that collateral attacks based on other defects may
be heard on habeas review.").
The gist of
Gretzler's argument is that his California lawyer
was ineffective (more accurately, the California
trial judge had misled him) because Gretzler had not
been informed about the possible consequences in
Arizona of his nine California convictions. At his
hearing on resentencing, Gretzler filed a motion in
limine, seeking to preclude the State from
introducing the California convictions as
aggravating factors at sentencing. The trial court
found that the California judge who accepted
Gretzler's guilty pleas to nine counts of murder had
misled Gretzler into thinking that his California
convictions would not have any effect on any other
the California record, the Arizona Supreme Court set
aside the trial court's grant of the motion in
limine, holding as follows:
The failure of the California
judge to accurately inform the defendant of the
consequences in Arizona of defendant's plea in
California does not, however, render the California
judgments void. The law does not require a judge in
one state to accurately explain the law of a sister
state before a plea of guilty to a crime in the
pleading state may be accepted as voluntary. The
record shows that in the instant case defendant pled
guilty to nine murders pursuant to a plea bargain.
There was a factual determination by the California
court that he was in fact guilty of those nine
murders and that the pleas were voluntarily made. We
find no violation of the requirements of Boykin v.
Alabama, [395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969) ] supra, in the acceptance of the
defendant's pleas of guilty in the California court
which would render the judgments void.
The California judgments were
entered in good faith. There was no indication that
defendant was purposely misled, or that he pled
guilty to crimes that he did not commit. Any
violation of the Boykin requirements was technical
in nature and not made less technical by the fact
that the death penalty was involved. The judgments
of guilt to the nine murders are the kind of
aggravating circumstances that the legislature
intended the courts of this state to consider in
deciding whether to impose the death penalty. The
judgments are not void, Burgett v. Texas, [389 U.S.
109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ] supra,
and not subject to collateral attack in Arizona.
United States v. Timmreck, [441 U.S. 780, 99 S.Ct.
2085, 60 L.Ed.2d 634 (1979) ] supra; United States
v. Lopez-Beltran, [619 F.2d 19 (9th Cir.1979) ],
State v. Superior
Court, 128 Ariz. 583, 627 P.2d 1081, 1083-84 (1981).
In light of the
above, we conclude that the trial court did not
commit error of constitutional magnitude by
considering as aggravating factors Gretzler's nine
California murder convictions.
V. Unconstitutional Vagueness
argument is that, at the time of his resentencing,
the "heinous, cruel, or depraved" standard of
Ariz.Rev.Stat. § 13-703(F)(6) (former section
13-454(E)(6)) was unconstitutionally vague; i.e., it
was only in his case that the Arizona Supreme Court
properly narrowed the definition of that standard as
an aggravating factor at sentencing. Because we
reject this contention for the same reasons so ably
set forth in the district court's Order and
Memorandum of September 26, 1995, we quote that
portion of its decision in its entirety:
Gretzler II [i.e., State v.
Gretzler, 135 Ariz. 42, 659 P.2d 1 (Ariz.1983) ] did
not announce a new narrowing definition of which
Gretzler could not have been aware. This is self
evident from the language of the opinion. In the
first paragraph on this topic, the Arizona Supreme
[w]e have already considered an
identical claim in another case and have held this
aggravating circumstance was not defined in an
unconstitutionally broad or vague manner. State v.
Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031
(1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259,
72 L.Ed.2d 863 (1982).
We believe that the statutory
phrase ... has been construed in a constitutionally
narrow fashion, and has been properly applied in
Gretzler II, 135 Ariz. at 50, 659
P.2d at 9 (emphasis added). The Arizona Supreme
Court then proceeded to review prior case law which
supported its conclusion.
Citing some six
prior cases, the Arizona Supreme Court stated, "We
have explained on numerous occasions that cruelty
involves the pain and distress visited upon the
victims and that heinous and depraved go to the
mental state and attitude of the perpetrator as
reflected in his words and actions." Gretzler II,
135 Ariz. at 50, 659 P.2d at 9 (emphasis added) (citations
omitted). It then recognized that it had previously
stated that "cruelty involves not only physical pain,
but also 'mental ... distress visited upon the
victims.' " Id. 135 Ariz. at 51, 659 P.2d at 10 (citing
State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888,
896 (Ariz. [), cert. denied, 449 U.S. 1067, 101 S.Ct.
796, 66 L.Ed.2d 612] (1980)). Describing the
physical pain Michael Sandberg had to endure, the
mental anguish both victims suffered for having been
held hostage for hours, and the extreme mental
anguish Patricia Sandberg had to endure as she
listened to her husband being shot to death, the
Arizona Supreme Court found that "[t]he Sandbergs
clearly suffered the kind of 'mental and physical
distress' we have held constitutes cruelty."
Gretzler II, 135 Ariz. at 53, 659 P.2d at 12 citing
State v. Tison, 129 Ariz. 526, 543, 633 P.2d 335,
352 (Ariz.1981) (emphasis added) [, cert. denied,
459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982)
]. It is apparent from its prior decisions and the
opinion in Gretzler II, that Arizona did not
perceive itself as announcing any new narrowing
definition. Rather, it applied well-developed case
The United States Supreme Court
has not held that Gretzler II marks the moment at
which Arizona's cruel and heinous aggravating
circumstance became constitutional. In Walton v.
Arizona, 497 U.S. [639,] at 654, 656, 110 S.Ct.
[3047,] at 3057-58 , the constitutionality of
Arizona's cruel, heinous and depraved aggravating
circumstance was evaluated. Walton held that while
the statutory language is unconstitutionally vague,
the defect had been cured by the Arizona Supreme
Court through the development of narrowing
definitions. Id., 497 U.S. [at] 654, 110 S.Ct. at
3057. Nowhere in that opinion did Walton identify
Gretzler II as the sole and ultimate source of the
Arizona [Supreme Court]'s narrowing definition.
In Lewis v. Jeffers, 497 U.S.
764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), the
Supreme Court observed that in Gretzler II the
Arizona Supreme Court "recently delineated factors
to be considered in determining whether the offense
was committed in a heinous or depraved manner." Id.,
497 U.S. at 771, 110 S.Ct. at 3097. When noting that
infliction of gratuitous violence was one such
factor, however, the Supreme Court cited both to
Gretzler II and State v. Ceja, 115 Ariz. 413, 565
P.2d 1274 (Ariz.), cert. denied, 434 U.S. 975, 98
S.Ct. 533, 54 L.Ed.2d 467 (1977). Thus, the Court
concludes that Jeffers does not support a finding
that prior to Gretzler II Arizona's cruel, heinous
and depraved aggravating circumstance was
Gretzler also claims that
Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121
L.Ed.2d 411 (1992) demonstrates that the aggravating
circumstance was not constitutionally defined until
Gretzler II. In Richmond, as in this case, the
application of this aggravating circumstance was
redetermined by the Arizona Supreme Court during
appellate review. Gretzler II was subsequent to
Richmond's resentencing but prior to the United [States]
Supreme Court's review. In Richmond, the State did
not argue the constitutionality of the trial court's
application of the aggravating circumstance but
rather argued only the constitutionality of the
Supreme Court's application. The State has done the
same thing here. The State had no need to prove the
former when it could so easily prove the latter.
This Court will not read into that approach, a
concession that prior to Gretzler II the aggravating
circumstance, as applied by the courts, was
This Court recognizes that
recently the Arizona Supreme Court remarked in a
footnote that the cruel, heinous and depraved
had not yet been adequately
narrowed pursuant to Godfrey v. Georgia, 446 U.S.
420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), at the
time of defendant's second sentencing. This did not
occur until State v. Gretzler, 135 Ariz. 42, 659
P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444,
77 L.Ed.2d 1327 (1983). See Jeffers v. Lewis [Lewis
v. Jeffers], 497 U.S. 764, 784, 110 S.Ct. 3092,
3104, 111 L.Ed.2d 606 (1990) (holding that Gretzler
accomplished such a narrowing).
State v. Richmond, 180 Ariz. 573,
576 n. 1, 886 P.2d 1329, 1332 n. 1 (Ariz.1994). The
Court considers this language as dicta since the
issue before the court was not Gretzler's present
claim. Given the significance of such a holding on
pending death penalty habeas cases, the Court will
not elevate dicta in a footnote to a holding.
Moreover, even if Gretzler's case is found to have
narrowed the cruel and heinous aggravating
circumstance, it would not invalidate his sentence.
Gretzler's argument that he had no notice of the
criteria is unpersuasive.
First, the Arizona Supreme Court
specifically relied on 1980 and 1981 cases in
summarizing the criteria to determine if a murder
was cruel. These included the infliction of
emotional distress on the victims, State v. Clark,
supra, and being held at gun point for an extended
period of time and witnessing the killing of other
family members was cruel [sic]. State v. (Ricky)
Tison, 129 Ariz.526, 633 P.2d 335 (Ariz.1981).
Gretzler had the benefit of these cases available to
him at the time his second sentence was appealed. He
was not forced to "forecast" a narrowing definition.
Second, the Arizona Supreme Court
found the aggravating circumstance itself based on
the facts: the fact that Michael and Patricia were
held prisoner for an extended period; the fact that
Patricia Sandberg "had to endure the unimaginable
terror of having her husband shot to death within
her hearing, and then having to wait for her own
turn to come." Gretzler II, 135 Arizona at 53, 659
P.2d at 12. Gretzler knew these were the relevant
facts based on existing case law. No change in
Gretzler's argument could alter the facts.
Gretzler relies on Moore v. Clark
[Clarke], 904 F.2d 1226, 1230-31 (8th Cir.1990),
cert. denied, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d
591 (1992) for the proposition that defendants
should not be required to forecast narrowing
definitions. In Moore, the state attempted to rely
on a narrowing definition presented in a case
decided six years after Gretzler's sentencing to
prove that the aggravating circumstance was
constitutional at the time of sentencing. There the
Eighth Circuit expressly found that the new case did
not merely clarify existing law because the new case
could not be reconciled with prior case law. That is
not the case here. Nothing stated in Gretzler II is
claimed to be in conflict with prior cases. In
addition, the new law announced in Moore did not
rectify the constitutional infirmity. Thus, the
Court finds Moore inapposite.
Gretzler II did not announce new
law. It merely reviewed existing law to further
describe a constitutionally acceptable aggravating
C.R. # 124, at
50-54 (brackets added; footnote omitted; minor
typographical errors corrected).
argument is that the sentencing court and the
Arizona Supreme Court subjected him to double
jeopardy by double-counting his California murder
convictions; i.e., his California convictions were
used as the basis for two separate aggravating
factors in prescribing the death penalty. We
statute, Ariz.Rev.Stat. § 13-703(E)-(G) (former
does not require that the number
of aggravating circumstances be weighed against the
number of mitigating circumstances. One mitigating
circumstance, for example, may be "sufficiently
substantial" to outweigh two aggravating
circumstances. The converse is also true--one
aggravating circumstance could be so substantial
that two or more mitigating circumstances would not
be "sufficiently substantial to call for leniency."
State v. Brookover,
124 Ariz. 38, 601 P.2d 1322, 1326 (1979) (quoting
former section 13-454(D)). Nevertheless, although
one fact (e.g., a single conviction) may be used to
establish two aggravating circumstances, that fact
may be weighed only once. State v. Tittle, 147 Ariz.
339, 710 P.2d 449, 455 (1985).
In reviewing the
trial court's resentencing of Gretzler, the Arizona
Supreme Court considered only those facts associated
directly with the convictions. While recognizing
that there were two aggravating circumstances based
on the nine California murder convictions, the
Arizona Supreme Court limited its focus to the fact
of the convictions and the nature of the crime on
which those convictions were based:
We feel compelled to comment that
the crime on which defendant's previous convictions
are based, the cold blooded mass murder of nine
persons, including the shooting of sleeping children
as they lay in their beds, is more than sufficiently
offensive to place the defendant well above the norm
of first degree murderers.
State v. Gretzler,
659 P.2d at 17. As the district court noted, "Nowhere
did the court indicate that it was influenced by the
fact that such a crime was an aggravating
circumstance both because it was punishable by life
imprisonment or death, and because it involved the
threat or use of violence." C.R. # 124, at 56 (internal
citations omitted). Accordingly, we find no merit to
VII. Proof of Aggravating
Factors Beyond a Reasonable Doubt
argument is that the trial court did not understand,
and therefore did not properly apply, the correct
standard when it failed to require proof beyond a
reasonable doubt for the existence of aggravating
circumstances that warranted imposition of the death
penalty. We reject this contention.
The Supreme Court
has declared that "[t]rial judges are presumed to
know the law and to apply it in making their
decisions." Walton v. Arizona, 497 U.S. 639, 653,
110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990). In
1980, well before the trial court resentenced
Gretzler, the Arizona Supreme Court expressly held
that the standard to be applied in such situations
was that of beyond a reasonable doubt. State v.
Jordan, 126 Ariz. 283, 614 P.2d 825, 828, cert.
denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251
(1980). While the trial judge expressed some concern
that the law governing two of the aggravating
circumstances appeared difficult to reconcile, we
agree with the district court that this evidence is
insufficient to overcome the presumption that the
court knew and applied the correct law. The fact
that the trial judge did not clearly and
unambiguously make such an express finding on the
record is not determinative. See Clark v. Ricketts,
958 F.2d 851, 859-60 (9th Cir.) (as amended), cert.
denied sub nom. Clark v. Lewis, 506 U.S. 838, 113
S.Ct. 117, 121 L.Ed.2d 73 (1992).
VIII. Consideration of Non-Statutory
argument is that the Arizona Supreme Court
improperly relied on a non-statutory aggravating
factor, i.e., the high court considered the facts
underlying his nine California murder convictions.
Gretzler concedes that he failed to present this
issue to the state courts, and he did not raise the
issue before the district court by including it in
either his original or amended petition for writ of
Accordingly, we decline to reach the merits of this
IX. Review of Statement of
argument is that the trial court improperly
considered a statement from the victim's family, viz.,
a letter from Patricia Sandberg's father asking that
Gretzler be sentenced to death. This contention
Evidence about a
victim's characteristics and the impact of the
murder on the victim's family is relevant and
admissible at a death penalty sentencing proceeding.
Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct.
2597, 2609, 115 L.Ed.2d 720 (1991). Admission of
such evidence will only be deemed unconstitutional
if it is so unduly prejudicial that it renders the
sentence fundamentally unfair. Id. at 825, 111 S.Ct.
at 2608. As the district court properly noted, the
comments of Patricia's father were admissible not
for their truth, but as a reflection of the anguish
her death caused to her family. Moreover, the letter
was not submitted in its entirety to a sentencing
jury, but was reviewed by the judge. Accordingly,
and in the absence of any evidence to the contrary,
we must assume that the trial judge properly applied
the law and considered only the evidence he knew to
be admissible. See Walton, 497 U.S. at 653, 110 S.Ct.
X. Communication with Prosecutor
argument is that his constitutional rights were
violated when the trial judge had a conversation
with Steve Neely, one of the attorneys in the
prosecutor's office, concerning the local publicity
surrounding Gretzler's prosecution. Neely was not
the attorney who prosecuted Gretzler; there was no
evidence showing that anything improper occurred;
and, following an extensive hearing on Gretzler's
motion demanding that the trial judge recuse himself,
the judge assigned to the matter found no grounds
for recusal. The state court's finding that the
trial judge was impartial is not only supported by
the record, but is a finding of historical fact that
is entitled to a presumption of correctness. Cf.
Greenawalt v. Ricketts, 943 F.2d 1020, 1029 (9th
Cir.1991) (finding that jury was impartial is
historical fact entitled to presumption of
correctness on collateral review; citing Patton v.
Yount, 467 U.S. 1025, 1036-40, 104 S.Ct. 2885,
2891-94, 81 L.Ed.2d 847 (1984)), cert. denied sub
nom. Greenawalt v. Lewis, 506 U.S. 888, 113 S.Ct.
252, 121 L.Ed.2d 184 (1992).
Because we find no
merit to any of Gretzler's arguments, the district
court's decision to grant summary judgment in favor
of the respondent is
Gretzler has been sentenced to death following a
trial that lacked fundamental fairness. In denying
Gretzler's habeas petition, United States District
Judge Richard M. Bilby observed:
This case represents everything
that is wrong with death penalty litigation-an
inexperienced lawyer (only three years experience
with no death penalty cases); a parsimonious
criminal system that would not grant the defendant
sufficient funds to adequately defend himself; and
an overzealous prosecutor who did his best,
successfully, to deprive the defendant of needed
funds for an adequate defense.
Gretzler v. Lewis,
No. 85-537 TUC RMB, slip op. at 67 n. 9 (D.Ariz.
Sep. 26, 1995).
The crucial issue
at Gretzler's trial was whether Gretzler could form
the specific intent necessary to sustain a
conviction for first-degree murder. Gretzler's
counsel repeatedly requested that the trial court
appoint an independent psychiatrist to assist in the
preparation and presentation of an adequate defense
on this issue. The court denied these requests. The
trial court's failure to provide Gretzler with the
assistance of an independent psychiatrist violated
Gretzler's due process rights. Therefore, I would
reverse Gretzler's conviction and grant him a new
discovered after Gretzler's conviction supports his
claim that he lacked the necessary intent to commit
first-degree murder. The evidence includes the
(1) at age 13, Gretzler was
diagnosed as suffering from anxiety and depression;
(2) from age 13 until the time
the murders were committed, Gretzler used
amphetamines and LSD as a means of self-medication;
(3) when Gretzler was 16, his
older brother killed himself;
(4) Gretzler suffered from a
significant mental disorder--"schizophrenic reaction,
paranoid type"--throughout most of his life;
(5) at the time of the offenses,
Gretzler was taking intravenous doses of
amphetamines, had gone without sleep for several
days, and likely suffered from amphetamine-induced
(6) amphetamine-induced psychosis
can impair the ability to premeditate and lead to
paranoia and hyper-suggestibility--a condition which
causes a person to follow commands or suggestions
without any thought as to whether the action is
right, wrong, or even possible;
(7) the amphetamine-induced
psychosis may have permitted Gretzler's companion,
Willie Steelman, to control Gretzler's actions;
(8) a person in an amphetamine-induced
psychosis would generally meet the M'Naghten
(9) amphetamine-induced psychosis
is associated with a high incidence of
uncontrollable violence; and
(10) at the time of the offenses,
Gretzler did not know the nature and quality of his
acts or that what he did was wrong.
that the trial court's refusal to appoint an
independent psychiatrist to assist in the defense
prevented his attorney, David Hoffman, from placing
before the jury critical evidence on Gretzler's
Hoffman made his first request for the assistance of
an independent psychiatrist under Arizona Revised
Statutes § 13-1673(B) (now Ariz.Rev.Stat. §
13-4013(b)) which provides:
When a person is charged with a
capital offense the court may on its own initiative
and shall upon the application of the defendant and
a showing that the defendant is financially unable
to pay for such services, appoint such investigators
and expert witnesses as are reasonably necessary
adequately to present his defense at trial and at
any subsequent proceeding.
added). This section expressly mandates the
appointment of expert witnesses needed by indigent
capital defendants like Gretzler. Nevertheless, the
trial court denied Hoffman's request.
At the court's
direction, Hoffman then filed a motion for a
psychiatric examination of Gretzler under Rule 11 of
the Arizona Rules of Criminal Procedure. Under Rule
11, the trial court may appoint one expert nominated
by the accused and one expert nominated by the state.
Ariz.R.Crim.P. 11.3. Rule 11 further provides that
"[t]he court may, in its discretion, appoint
additional experts ... when advised by an appointed
expert that such examinations are necessary to an
adequate determination of the defendant's mental
condition." Id. 11.3(f). Hoffman nominated Dr. David
Gurland on Gretzler's behalf; the state nominated
Dr. Allan Beigel. The doctors were to determine
whether Gretzler was competent to stand trial and
examine his mental state at the time of the murders.
Id. 11.2. The doctors reported their results
directly to the trial court. Rule 11 did not require
either doctor to assist Hoffman in the evaluation,
preparation, or presentation of Gretzler's defense.
Dr. Gurland spent
approximately two hours preparing for the exam and
about one hour with Gretzler. Dr. Beigel examined
Gretzler for about forty-five minutes. Both doctors
found Gretzler competent to stand trial. Both
doctors also found that at the time of the murders,
Gretzler was impaired by his drug use but could form
intent. Although Dr. Gurland did explore Gretzler's
drug use, he did not know the quantity of drugs
involved. Dr. Beigel concluded that at the time of
the murders, Gretzler was probably in "an acute
paranoid state and possibly paranoid schizophrenic."
Based on these reports, the trial court found
Gretzler competent to stand trial.
Hoffman then made
a second request for the assistance of an
independent psychiatrist under Ariz.Rev.Stat. §
13-1673(B). Hoffman based the request on the
insufficiency of the Rule 11 examinations and on the
state's disclosure that Gretzler had engaged in
heavy drug use at the time of the murders. Hoffman
[D]efendant is in dire need of
the appointment of a psychiatrist ... to determine
the effect of amphetamine-based drugs and cocaine
taken in combination upon the defendant; to
determine the defendant's ability to form specific
intent; and to do a complete psychiatric and
psychological examination of the defendant in order
to assist counsel in the preparation and
presentation of his defense.
Four months later,
before the trial court had ruled on Hoffman's second
request for the assistance of an independent
psychiatrist, Hoffman submitted a new request for
extensive psychological testing of Gretzler. This
request specifically noted Gretzler's previous
institutionalization for mental illness and Dr.
Beigel's conclusion that Gretzler was probably in "an
acute paranoid state and possibly paranoid
schizophrenic" at the time of the murders. The trial
court denied Hoffman's request because both Dr.
Gurland and Dr. Beigel had indicated that an
additional examination was unnecessary.
Finally, near the
end of Gretzler's trial, Hoffman, for the fourth
time, again sought additional psychiatric
examinations based on the insufficiency of the Rule
11 exams and Dr. Beigel's failure to question
Gretzler about drug intoxication, an issue which had
become central to the case. The trial court again
denied Hoffman's request.
In Ake v.
Oklahoma, the Supreme Court decreed that indigent
individuals have a right to the assistance of a
psychiatrist in their defense. The Supreme Court
[W]hen 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.
470 U.S. 68, 83,
105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985).
Ake, this court has noted: "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." Williams v. Calderon, 52 F.3d 1465,
1473 (9th Cir.1995) (quoting Ake, 470 U.S. at 74,
105 S.Ct. at 1091-92), cert. denied, --- U.S. ----,
116 S.Ct. 937, 133 L.Ed.2d 863 (1996).
In the present
case, the majority concludes that Hoffman failed to
make the preliminary showing required under Ake
because the trial court found Gretzler to be sane at
the time of the murders and competent to stand trial.
The trial court based its decision on the testimony
and reports of Dr. Gurland and Dr. Beigel. I
disagree with the majority's conclusion.
In cases decided
after Ake, it is clear that the accused must make a
preliminary showing that his sanity at the time of
the offense is likely to be a significant factor at
trial. In cases decided before Ake, such as the
present case, the inquiry is whether counsel could
have made the preliminary showing. See Castro v.
Oklahoma, 71 F.3d 1502, 1513 (10th Cir.1995) (noting
that in pre-Ake cases, the inquiry is whether
petitioner could have made a preliminary showing) (citing
Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.1991),
cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d
123 (1992)). Thus, Gretzler only has to show that
defense counsel Hoffman could have made a
preliminary showing that Gretzler's mental state
would be a significant factor at trial. Nevertheless,
even if Hoffman were required to make a preliminary
showing, he satisfied that burden.
the trial court's reliance on Dr. Gurland and Dr.
Beigel's testimony and reports. Hoffman pointed out
the inadequacy of the Rule 11 exam and explained
that the effect of Gretzler's mental state and drug
usage on his ability to form specific intent could
not be addressed without the assistance of an
independent psychiatrist. See Starr v. Lockhart, 23
F.3d 1280, 1289 (8th Cir.) (finding court-appointed
mental health examiners' report inadequate because
it did not explain how mild retardation affected the
accused's appreciation of the results of actions he
admittedly knew were wrong), cert. denied, 513 U.S.
995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994).
Hoffman presented the trial court with sufficient
evidence to demonstrate that Gretzler's mental state
at the time of the murders would be "a significant
factor at trial." Ake, 470 U.S. at 74, 105 S.Ct. at
1091. First, Hoffman made repeated requests that the
court appoint an independent psychiatrist to assist
Gretzler in his defense, including one request
during the trial after Gretzler's drug intoxication
had been raised as an issue. Compare Cowley v.
Stricklin, 929 F.2d 640, 643 (11th Cir.1991) (finding
that "repeated, timely, and specific requests for
expert assistance" satisfied the preliminary showing
required under Ake) with Williams, 52 F.3d at 1474 (finding
no preliminary showing where counsel never moved for
appointment of independent psychiatrist nor
attempted to demonstrate that mental state would be
at issue). Second, Hoffman offered Dr. Beigel's
report that concluded that Gretzler was probably in
an "acute paranoid state and possibly paranoid
schizophrenic" at the time of the murders. Third,
the evidence revealed that Gretzler engaged in heavy
drug use at the time of the murders. Taken as a
whole, this evidence clearly satisfies the
preliminary showing under Ake that the assistance of
an independent psychiatrist was needed because
Gretzler's mental state would be a "significant
factor at trial."
The Rule 11 exam
by Dr. Gurland and Dr. Beigel did not, however,
satisfy Gretzler's right to the assistance of an
independent psychiatrist under Ake. Both the Supreme
Court and this court have made it clear that the
requirement of psychiatric assistance is not
satisfied by the appointment of a neutral
psychiatrist answerable to the court. Ake, 470 U.S.
at 83, 105 S.Ct. at 1096; Williams, 52 F.3d at 1473.
As this court reasoned in Smith v. McCormick, "to
grant court-appointed psychiatric assistance only on
condition of automatic full disclosure to the fact
finder impermissibly compromises presentation of an
effective defense, by depriving [the defendant] of 'an
adequate opportunity to present [his] claims fairly
within the adversary system.' " 914 F.2d 1153, 1159
(9th Cir.1990) (quoting Ake, 470 U.S. at 77, 105
S.Ct. at 1093). "Instead, due process requires the
appointment of one psychiatrist for use by the
defense in whatever fashion defense counsel sees fit."
Williams, 52 F.3d at 1473 (emphasis added).
In this case, the
Rule 11 examinations were not confidential. Dr.
Gurland and Dr. Beigel reported their findings
directly to the trial court. Furthermore, Rule 11
did not specifically require either psychiatrist to
assist Hoffman in the evaluation, preparation, or
presentation of Gretzler's defense.
Accordingly, Gretzler never received an independent
psychiatrist "for use by the defense in whatever
fashion defense counsel sees fit."
the trial court with sufficient evidence to
demonstrate that Gretzler's mental state would be a
significant issue at trial. Gretzler thus had the
right to an independent psychiatrist to assist in
evaluating, preparing, and presenting his defense.
By denying Gretzler such assistance, the trial court
violated Gretzler's due process rights and deprived
him of a fundamentally fair trial.
remains how to treat the trial court's error in
denying Gretzler the assistance of an independent
psychiatrist. I believe that the trial court's error
is structural and requires reversal.
occurs when the "entire conduct of the trial from
beginning to end is obviously affected." Arizona v.
Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246,
1265, 113 L.Ed.2d 302 (1991). As the Supreme Court
stated in Chapman v. California, "there are some
constitutional rights so basic to a fair trial that
their infraction can never be treated as harmless
error." 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17
L.Ed.2d 705 (1967); see, e.g., Sullivan v.
Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d
182 (1993) (right to correct jury instruction on
reasonable doubt); Vasquez v. Hillery, 474 U.S. 254,
266, 106 S.Ct. 617, 624-25, 88 L.Ed.2d 598 (1986) (right
to a racially nondiscriminatory grand jury selection);
Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct.
2210, 2217 n. 9, 81 L.Ed.2d 31 (1984) (right to
public trial); McKaskle v. Wiggins, 465 U.S. 168,
177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122
(1984) (right to self-representation); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963) (right to counsel); Tumey v. Ohio, 273
U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (right
to an impartial judge).
subject an Ake violation to a harmless error
analysis. See, e.g., Tuggle v. Netherland, 79 F.3d
1386, 1392-93 (4th Cir.), cert. denied, --- U.S.
----, 117 S.Ct. 237, 136 L.Ed.2d 166 (1996); Brewer
v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995),
cert. denied, --- U.S. ----, 116 S.Ct. 936, 133 L.Ed.2d
862 (1996); Starr v. Lockhart, 23 F.3d 1280,
1291-92. (8th Cir.), cert. denied, 513 U.S. 995, 115
S.Ct. 499, 130 L.Ed.2d 409 (1994). Ake itself,
however, simply reversed the conviction without
discussing harmless error analysis. See also Smith
v. McCormick, 914 F.2d at 1170 (reversing conviction
without engaging in harmless error analysis); Ford
v. Gaither, 953 F.2d 1296 (11th Cir.1992) (same);
Cowley v. Stricklin, 929 F.2d 640 (11th Cir.1991) (same).
In Vickers v.
Arizona, Justice Marshall, Ake 's author, stated
[The Arizona Supreme Court]
wrongly subjects Ake claims to harmless-error
analysis. In Ake, we did not endeavor to determine
whether the petitioner's case had been prejudiced by
the lack of a psychiatrist. Rather, we determined
that, in general, psychiatric assistance is of
extreme importance in cases involving an insanity
defense, and that without that assistance "the risk
of an inaccurate resolution of sanity issues is
extremely high." Because the petitioner had made the
threshold showing that his sanity was a significant
issue at trial and the State had failed to offer
psychiatric assistance, we reversed and remanded for
a new trial.
497 U.S. 1033,
1037, 110 S.Ct. 3298, 3300, 111 L.Ed.2d 806 (1990)
(Marshall, J., dissenting from denial of certiorari)
(citations omitted). See also Starr, 23 F.3d at
1294-95 (McMillian, J., concurring) (stating that
Ake errors require per se reversal).
Ake is based on a
determination that to deny psychiatric assistance
when the accused's mental state at the time of the
offense is at issue creates an extremely high
probability of an erroneous factual determination on
that issue. Ake, 470 U.S. at 82, 105 S.Ct. at
1095-96. Therefore, "competent psychiatric
assistance in preparing the defense is a 'basic tool'
that must be provided to the defense." Smith, 914
F.2d at 1159 (quoting Ake, 470 U.S. at 77, 105 S.Ct.
In this case, the
trial court's failure to appoint an independent
psychiatrist to assist in Gretzler's defense
affected the entire trial from beginning to end. The
only real issue at trial was whether Gretzler had
the necessary mental state when the murders were
committed. The defense therefore needed an
independent psychiatrist to examine Gretzler, draw
conclusions about his mental state, help develop
effective questions for cross-examination of state
witnesses, and explain medical terms. Furthermore,
an independent psychiatrist could have supplied
critical testimony to persuade a jury that Gretzler
lacked the requisite intent.
discovered after Gretzler's conviction casts serious
doubt on Gretzler's ability to form the intent
required to sustain a conviction for first-degree
murder. Without the assistance of an independent
psychiatrist, however, Gretzler was precluded from
effectively raising his mental state as a defense,
and denied the opportunity to present any effective
For all these
reasons, the trial court's failure to appoint an
independent psychiatrist to assist in Gretzler's
defense constitutes structural error which requires
In Harris v.
Vasquez, this court determined that Ake announced a
new constitutional rule of criminal procedure. 949
F.2d 1497, 1518 (9th Cir.1990), cert. denied, 503
U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). "Unless
they fall within an exception to the general rule,
new constitutional rules of criminal procedure will
not be applicable to those cases which have become
final before the new rules are announced." Teague v.
Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103
L.Ed.2d 334 (1989). One Teague exception states that
"a new rule should be applied retroactively if it
requires the observance of those procedures that ...
are implicit in the concept of ordered liberty." Id.
at 307, 109 S.Ct. at 1073 (internal quotations
omitted); see also Saffle v. Parks, 494 U.S. 484,
495, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415 (1990)
(noting that Teague allows retroactivity for " 'watershed
rules of criminal procedure' implicating the
fundamental fairness and accuracy of the criminal
proceeding") (quoting Teague, 489 U.S. at 311, 109
S.Ct. at 1075-76) (emphasis added).
conviction became final prior to the Ake decision,
Ake 's rule cannot be applied retroactively to this
case unless an exception applies. Whether Ake
applies retroactively is still an open question in
this circuit. See Harris, 949 F.2d at 1519 (stating
that "we ... do not decide Ake 's retroactivity").
But see Bassette v. Thompson, 915 F.2d 932, 938-39
(4th Cir.1990) (holding that Ake 's rule does not
summarily concludes that it is not convinced that
Ake 's rule "is a 'watershed rule of criminal
procedure' lying in that 'small core of rules' that
are 'implicit in the concept of ordered liberty.' "
I disagree. Ake 's rule applies retroactively
because it implicates the fundamental fairness and
accuracy of Gretzler's trial.
In Ake, the Supreme
This Court has long recognized
that when a State brings its judicial power to bear
on an indigent defendant in a criminal proceeding,
it must take steps to assure that the defendant has
a fair opportunity to present his defense. This
elementary principle, grounded in significant part
on the Fourteenth Amendment's due process guarantee
of fundamental fairness, derives from the belief
that justice cannot be equal where, simply as a
result of his poverty, a defendant is denied the
opportunity to participate meaningfully in a
judicial proceeding in which his liberty is at stake.
Ake, 470 U.S. at
76, 105 S.Ct. at 1092.
Whether a new
constitutional rule of criminal procedure is a "watershed
rule" requiring retroactive application turns on
society's interests in conducting a fair proceeding.
As the Supreme Court noted in Ake, "a criminal trial
is fundamentally unfair if the State proceeds
against an indigent defendant without making certain
that he has access to the raw materials integral to
the building of an effective defense." Ake, 470 U.S.
at 77, 105 S.Ct. at 1093. Where an indigent's
defense in a capital case rests on his mental state
at the time of the offense, the assistance of an
independent psychiatrist is "integral to the
building of an effective defense." Id.
Ake 's rule is
also critical to ensure accurate verdicts. "[W]ithout
the assistance of a psychiatrist to conduct a
professional examination on issues relevant to the
defense, to help determine whether the insanity
defense is viable, to present testimony, and to
assist in preparing the cross-examination of a
State's psychiatric witnesses, the risk of an
inaccurate resolution of sanity issues is extremely
high." Id. at 82, 105 S.Ct. at 1096 (emphasis added).
In Harris, this court echoed Ake 's concern for
accuracy in stating: "[W]e recognize that a
defendant's access to a competent psychiatrist might
increase the likelihood of an accurate conviction."
Harris, 949 F.2d at 1520 (emphasis added). See also
id. at 1529 ("If [a new] rule enhances the accuracy
of the determination of the facts and goes to
fundamental fairness, the rule is applied
retroactively. The Ake rule is of this kind.") (Noonan,
J. concurring in part, dissenting in part).
In this case, the
only real issue at trial was Gretzler's mental state
at the time of the murders. The appointment of an
independent psychiatrist to assist in Gretzler's
defense clearly would have increased the likelihood
of a fair and accurate verdict. Because the Ake rule
implicates fundamental fairness and will increase
the likelihood of an "accurate conviction," Ake
should apply retroactively.
For the above-stated
reasons, I would reverse the conviction and remand
for a new trial.