FICKLIN v HATCHER

U.S. 9th Circuit Court of Appeals

FICKLIN v HATCHER
9815025

BENNIE MORGAN FICKLIN,

Petitioner-Appellant, No. 98-15025

v. D.C. No.CV-97-00491-PMP

SHERMAN HATCHER; FRANKIE SUE
DEL PAPA, OPINION

Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Argued and Submitted
May 10, 1999--San Francisco, California

Filed May 25, 1999

Before: Joseph T. Sneed, Paul R. Michel 1 and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Sneed

_________________________________________________________________
_________________________________________________________________

COUNSEL

John C. Lambrose, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.

Victor H. Schulze, II, Deputy Attorney General, Las Vegas,
Nevada, for the respondents-appellees.

_________________________________________________________________
OPINION

SNEED, Circuit Judge:

Petitioner Bennie Ficklin ("petitioner") appeals from the
decision of the United States District Court for the District of
Nevada, the Honorable Philip M. Pro, Presiding, which
denied his petition for a writ of habeas corpus. Petitioner
argues that his conviction for first degree murder following a
trial in Nevada state court implicated the Double Jeopardy
Clause of the United States Constitution. He contends that the
instructions given at trial allowed the jury to premise its guilty
verdict on a robbery for which he had already pleaded guilty,
thereby putting him in jeopardy twice for that crime.

The district court disagreed and held that petitioner failed
to establish that his first degree murder conviction was predi-
cated on the robbery. The court found that there was
"sufficient evidence" in the record to support the conclusion
that the jury rested its verdict on a theory of premeditation
and not on felony murder. The district court denied the peti-
tion and this appeal followed.

We have jurisdiction pursuant to 28 U.S.C. S 2253 and
affirm the decision of the district court, albeit on different
grounds.

BACKGROUND

At the age of fifteen, petitioner was arrested for the robbery
of a tavern in Las Vegas, Nevada, and the death of one of its
patrons. Petitioner subsequently was charged with seven
counts of robbery in juvenile court. In these juvenile proceed-
ings, petitioner agreed to admit to one count of robbery in
exchange for the State's agreement to dismiss all other rob-
bery counts.

At the same time, the State pursued murder charges against
petitioner in state trial court. At the conclusion of petitioner's
trial, the trial court instructed the jury that a murder convic-
tion could be supported by a finding of express or implied
malice. The court further instructed the jury that if it con-
cluded that petitioner committed the murder in perpetration of
a robbery, it could imply that petitioner acted with the requi-
site malice. The court also instructed the jury that it could
return a verdict of first degree murder only if it found that
petitioner committed the murder willfully, deliberately and
with premeditation.

There are several pertinent instructions in this case, specifi-
cally:

INSTRUCTION NO. 4:

Murder is the unlawful killing of a human being,
with malice aforethought, either express or implied.
The unlawful killing may be effected by any of the
various means by which death may be occasioned.

In order to prove the commission of the crime of
Murder, each of the following elements must be
proved.

1. That a human being was killed,

2. That the killing was unlawful, and

3. That the killing was done with malice afore-
thought.

Malice aforethought is implied when a Murder is
committed in the perpetration of or in an attempt to
perpetrate a Robbery.

INSTRUCTION NO. 5:

Any kind of wilful, deliberate and premeditated kill-
ing is Murder in the 1st Degree.

INSTRUCTION NO. 8:

Express malice is that deliberate intention unlaw-
fully to take away the life of a fellow creature, which
is manifested by external circumstances capable of
proof.

Malice shall be implied when no considerable provo-
cation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.

INSTRUCTION NO. 9:

All Murder which is not Murder of the First Degree
is Murder of the Second Degree.

Murder of the Second Degree is the unlawful killing
of a human being with malice aforethought, but
without the . . . deliberation and premeditation.

The jury subsequently convicted petitioner of first degree
murder. Petitioner appealed to the Nevada Supreme Court,
arguing, inter alia, that his conviction violated the Double
Jeopardy Clause of the United States Constitution. Petitioner
argued that because he had already pleaded guilty to robbery
in juvenile proceedings, the jury instruction that allowed the
jury to imply malice if it found that petitioner committed rob-
bery (i.e., Instruction Number 4) caused the jury to return a
verdict that punished him a second time for that robbery. The
Nevada Supreme Court rejected petitioner's argument and
affirmed his conviction and sentence. Petitioner filed a peti-
tion for a writ of habeas corpus, again arguing that the convic-
tion violated Double Jeopardy. The district court rejected
petitioner's argument and he timely appealed that decision.

ANALYSIS

[1] We must decide whether the jury in this case relied or
could have relied on an instruction that placed petitioner in
double jeopardy for a robbery to which he had already
pleaded guilty in juvenile court. We conclude that it was error
for the trial court to instruct the jury that it could imply malice
if it concluded that petitioner committed robbery. 2 We hold,
however, that any instructional error was harmless because
we can conclude with certainty from the record that the jury
did not and could not have relied on the faulty instruction to
convict petitioner of first degree murder.

A. Harmless error analysis: Zant v. Stephens.

The Supreme Court's decision in Zant v. Stephens , 462
U.S. 862, 103 S. Ct. 2773, 77 L. Ed. 2d 235 (1983), requires
us to examine the record as a whole to determine whether the
jury rested its guilty verdict on the implied malice theory. In
Zant, the Supreme Court affirmed the death sentence of a
defendant where the jury returned a verdict of death based on
three aggravating circumstances, one of which subsequently
was held unconstitutional by a state appellate court. Id. at 879,
103 S. Ct. at 2744, 77 L. Ed. 2d 235. The Zant jury indicated
on its verdict sheet that the defendant had committed the three
aggravating circumstances, but did not indicate which combi-
nation of the three led it to sentence the defendant to death.
Id. The Supreme Court held that because any of the three
aggravating circumstances were statutorily sufficient to
impose a sentence of death on the defendant, it did not matter
that one subsequently was held unconstitutional. See id. at
881, 103 S. Ct. at 2745, 77 L. Ed. 2d 235. In other words, it
was not necessary to vacate the death sentence because it was
clear from the verdict that the sentence of death was appropri-
ate notwithstanding the jury's reliance on an unconstitutional
aggravating circumstance.

[2] The Zant Court, in a passage important to this case, held
that:

[A] general verdict must be set aside if the jury was
instructed that it could rely on any of two or more
independent grounds, and one of those grounds is
insufficient, because the verdict may have rested
exclusively on the insufficient ground. The cases in
which this rule has been applied all involved general
verdicts based on a record that left the reviewing
court uncertain as to the actual ground on which the
jury's decision rested.

Id. (citing Williams v. North Carolina ,
317 U.S. 287
, 292, 63
S. Ct. 207, 210, 87 L. Ed. 2d 279 (1942) ("To say that a gen-
eral verdict of guilty should be upheld though we cannot
know that it did not rest on the invalid constitutional ground
on which the case was submitted to the jury, would be to
countenance a procedure which would cause a serious impair-
ment of constitutional rights."); Cramer v. United States, 325
U.S. 1, 36 n. 45, 65 S. Ct. 918, 935 n. 45, 89 L. Ed. 1441
(1945); Terminiello v. Chicago,
337 U.S. 1
, 5-6, 69 S. Ct.
894, 896-97, 93 L. Ed. 1131 (1949); and Yates v. United
States,
354 U.S. 298
, 311-12, 77 S. Ct. 1064, 1072-73, 1 L.
Ed. 2d 1356 (1957)) (emphasis added).

B. Application of Zant to petitioner's case.

[3] In this case, the judge instructed the jury that, in order
to find petitioner guilty of first degree murder, it must have
found that the murder was "wilful, deliberate and
premeditated." The jury returned a verdict of first degree mur-
der. Therefore, we know that the jury concluded that the mur-
der was premeditated, notwithstanding the fact that the verdict
was general and did not so specify.

[4] The instructions in this case differ in one significant
respect from general Nevada jury instructions and statutes on
murder. Normally, under Nevada law, first degree murder
includes felony murder, premeditated murder, and murder
committed against a peace officer. See Nev. Rev. Stat.
S 200.030 (1997). However, in this case, instruction number
five, to repeat, defined murder in the first degree only as
"wilful, deliberate and premeditated Murder." Therefore, the
trial court carefully avoided double jeopardy concerns in this
case by instructing the jury that a first degree murder convic-
tion only could be supported by a finding of premeditation. It
did not instruct on the felony murder rule. Under instruction
number nine, in fact, the trial court instructed the jury that all
murder perpetrated without deliberation and premeditation,
including felony murder, is second degree murder. And
instruction number eight defines express malice as a
"deliberate intention unlawfully to take away the life of a fel-
low creature." Because the jury returned a verdict of first
degree murder, it necessarily determined that the murder was
premeditated and deliberate murder, not felony murder predi-
cated on implied malice. Consequently, it is clear that the jury
did not rely on the implied malice instruction."

Thus, because the jury convicted petitioner of first degree
murder, and the instructions defined first degree murder only
as encompassing "wilful, deliberate and premeditated
murder," the jury did not and could not have relied upon
implied malice to convict petitioner. Therefore, the trial
court's instruction that "[m]alice aforethought is implied
when a Murder is committed in the perpetration of or in an
attempt to perpetrate a Robbery" could not have played a part
in the jury's determination that the petitioner was guilty of
first degree murder. We hold that any instructional error was
harmless. See Zant,
462 U.S. at 879
, 103 S. Ct. at 2744, 77
L. Ed. 2d 235.

C. The parties' arguments.

Petitioner nonetheless argues that a harmless error analysis
is inappropriate in this case. In support of that position he
relies on our decision in Suniga v. Bunnell, 998 F.2d 664 (9th
Cir. 1993). Petitioner is incorrect. In Suniga , we concluded
that in circumstances where it was not possible to determine
with certainty whether the jury relied on an unconstitutional
theory to reach its guilty verdict, reversal was required with-
out engaging in a harmless error analysis. 998 F.2d at 668-69.
Suniga, however, is inapplicable in this case. We can tell with
certainty from the jury instructions that the jury rested its ver-
dict on a ground that did not implicate petitioner's constitu-
tional right. It explicitly found that petitioner committed first
degree, premeditated murder. In other words, the jury did not
rely on the implied malice instruction. Any instructional error
was harmless. See supra, pp. 4999-5000.

Respondent asserts that any error in this case is harmless
because the Nevada Supreme Court reviewed the trial tran-
script and found "sufficient" evidence of premeditation. In its
eyes it is of no consequence that the trial court instructed the
jury that it could imply malice if it found that petitioner
engaged in a robbery. Respondent relies on the following pas-
sage from the decision of the Nevada Supreme Court:

[T]here was ample evidence to establish that appel-
lant had committed the murder in a deliberate and
premeditated manner. . . . Specifically, we note that
several witnesses at appellant's trial testified that
appellant had killed the victim with his shotgun at
pointblank range in a manner which appeared to be
intentional. (Emphasis added).

The court also took note that the "prosecution relied primarily
on the theory that appellant had intentionally killed the
victim." (Emphasis added).

This argument misreads Zant. It does not suggest that a
general verdict can be sustained if there is "ample" evidence
presented on a constitutional theory or if the prosecution
"relied primarily" on a constitutional theory. Rather, under
Zant, review must be limited to determining whether it is
absolutely certain from the record that the jury did not rely on
the unconstitutional grounds to convict the defendant. The
Supreme Court emphasized in Zant that "[i]f, under the
instructions to the jury, one way of committing the offense
charged is" not legally proper "the rule of these cases requires
that a general verdict of guilt be set aside even if the defen-
dant's unprotected conduct, considered separately, would
support the verdict."
462 U.S. at 883
, 103 S. Ct. at 2746, 77
L. Ed. 2d 235 (emphasis added).

[5] Thus, it was incorrect for the Nevada Supreme Court
and the district court to rest their holdings on the fact that
there is "sufficient" evidence in the record to support the con-
clusion that the jury convicted petitioner of premeditated mur-
der. Zant limits the harmless error analysis to situations in
which this Court determines that it was impossible for the jury
to have relied on the infirm instruction.

[6] In this case that test was met. It was impossible under
Nevada law--as defined in these instructions--for the jury's
decision to have rested on a theory of implied malice. Peti-
tioner's conviction therefore withstands constitutional scru-
tiny.

For the reasons discussed, the decision of the district court
is

AFFIRMED. the end

_______________________________________________________________

FOOTNOTES

2 It is clear under federal and Nevada law that a prior juvenile adjudica-
tion for robbery and the subsequent prosecution for murder, where the jury
relies on that same robbery to convict a defendant of murder, constitute
multiple trials for the same offense.

First, under Nevada law, a "juvenile proceeding[ ] based upon the
offense alleged in the petition alleging delinquency or an offense based
upon the same conduct are barred if the court has begun taking evidence
or has accepted a child's admission of the facts alleged in the petition. No
child may be prosecuted first as a juvenile and later as an adult, or in two
juvenile court hearings for the same offense." Nev. Rev. Stat. S 62.195(2)
(1997); see also Breed v. Jones,
421 U.S. 519
, 95 S. Ct. 1779, 44 L. Ed.
2d 346 (1975) (adjudication in juvenile proceedings sufficient for jeopardy
to attach). Petitioner accepted responsibility for the robbery charge in
juvenile court before the state finished prosecuting his "adult" trial for
murder. If the offenses of robbery and felony murder are the same for
Double Jeopardy purposes, Double Jeopardy bars the second prosecution
for felony murder.
Second, the Supreme Court has held, in Harris v. Oklahoma, 433 U.S.
682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (per curium), that the
offenses of robbery and felony murder predicated on that same robbery are
the same offenses for purposes of Double Jeopardy and a defendant cannot
be tried for one offense subsequent to a trial or plea on the other. The
rationale of Harris, and for that matter, double jeopardy itself, is that the
Constitution prohibits the states from having two opportunities to convict
a defendant on the same charge. For example, if the state proceeded
against petitioner for robbery and he was acquitted, the Constitution pro-
hibits the states from attempting to obtain a second conviction for that rob-
bery, whether as an independent charge, or as part of a murder charge.
Therefore, because jeopardy has already attached for petitioner's rob-
bery, it was error for the trial court to instruct the jury that it could imply
malice if it found that petitioner committed robbery. Respondent and the
district court appear to concede that the instruction is erroneous, as it is
raised in neither the briefs to this Court nor in the opinion below. The only
issue in dispute, therefore, is whether the error is harmless.