Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

MEMORANDUM^* 

Petitioner George Griffith was convicted of first degree murder and second degree assault in 1975. The crimes occurred after Griffith had confiscated a basketball belonging to some children who had been playing outside the apartment he shared with his mother. When two men came to retrieve the basketball, an argument occurred and Griffith shot one of the men.

Griffith pursued a direct appeal to the Washington Supreme Court. State v. Griffith, 91 Wash. 2d 572, 589 P.2d 799 (1979). He then pursued state habeas corpus relief to the state supreme court. In re Griffith, 102 Wash. 2d 100, 683 P.2d 194 (1984).

Griffith's present federal habeas corpus petition raises two claims: (1) that a jury instruction violated due process under Sandstrom v. Montana, 442 U.S. 510 (1979), and (2) that the trial court's denial of a request for a defense psychiatric expert violated due process under Ake v. Oklahoma, 470 U.S. 68 (1985). The district court denied the psychiatric claim on the merits, and held that review of the Sandstrom claim was precluded by Washington's "invited error" rule. We affirm.

At trial, Griffith argued that his history of mental disorders prevented him from forming the intent requisite to a finding of first degree murder. The prosecutor and defense counsel agreed on a jury instruction on intent that began with the following statement:

You are instructed that the law presumes that every man intends the natural and probable consequences of his own acts.

Four years after the trial, the Supreme Court decided Sandstrom v. Montana, 442 U.S. 510 (1979), holding that the due process requirement that the prosecution prove every element of a criminal offense beyond a reasonable doubt was violated by the instruction "The law presumes that a person intends the ordinary consequences of his voluntary acts."

Griffith raised the Sandstrom issue in a state habeas corpus petition. The Washington Supreme Court declined to address the issue because "Petitioner proposed the challenged instruction, and he cannot now complain it was error." 102 Wash. 2d at 102 (citing In re Haynes, 95 Wn.2d 648, 628 P.2d 809 (1981), overruled on other grounds in In re Hews, 99 Wn.2d 80, 660 P.2d 263; State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979)) .

The district court held that the "invited error" rule applied by the Washington Supreme Court was an independent and adequate state procedural ground that bars habeas corpus review of the Sandstrom claim. See Wainwright v. Sykes, 433 U.S. 72 (1977) (failure to comply with state "contemporaneous objection" rule bars claim that defendant's confession was admitted in violation of his Miranda rights); see also Procter v. Butler, 831 F.2d 1251 (5th Cir. 1987); Cook v. Foltz, 814 F.2d 1109 (6th Cir. 1987) (both cases invoking the procedural bar rule to defeat a Sandstrom claim).

Griffith contends that the "invited error" rule was not an "adequate" state ground because the rule was not clearly announced or consistently applied by Washington courts in 1975 when his case was decided. See County Court v. Allen, 442 U.S. 140, 154 (1979); Kreck v. Spaulding, 721 F.2d 1229, 1234 (9th Cir. 1983).

Washington courts did apply the "invited error" rule prior to 1975. E.g., Vangemert v. McCalmon, 68 Wash. 2d 618, 625, 414 P.2d 617 (1966) ("a party cannot request an instruction, and then claim error because it was given."). The fact that the rule had yet to be applied to constitutional claims is irrelevant; the rule itself was clearly announced and application of the rule to constitutional claims is consistent with its terms. Indeed, the rule has been applied to constitutional claims in several post-1975 cases. E.g., State v. Boyer, 91 Wash. 2d 342, 345, 588 P.2d 1346 (1979) ("we do not reach the constitutional issue.... A party may not request an instruction and later complain on appeal that the requested instruction was given.").

Finally, Griffith argues that the rule has not been consistently applied by the Washington courts. Griffith relies primarily on State v. Modica, 18 Wash.App.2d 467, 481, 569 P.2d 1161 (1977), in which a Washington appellate court declined to apply a contemporaneous objection rule or an invited error rule to preclude consideration of a due process claim predicated on erroneous jury instructions.

Although Modica provides some support for petitioner's contentions, it appears that the Washington Supreme Court has consistently applied the invited error rule. A decision of an intermediate state tribunal, although appropriate source of guidance, are not binding on a federal court. Cf. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986). The district court did not err in denying petitioner's Sandstrom claim. It has long been held that an issue of federal law will not be considered in habeas corpus cases if the state court judgment "rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision. See Harris v. Reed, 109 S. Ct. 1038, 1042-43 (1989).

On his direct appeal, Griffith argued that the court erred in refusing to appoint a psychiatric expert at the time of his arraignment. The Washington Supreme Court held that the applicable state statutes require the appointment of a defense expert at the time of arraignment, and that the trial court had erred in failing to do so. However, the supreme court went on to hold that Griffith had not established that the error was prejudicial. The court noted that the statute's purpose is to ensure an expert for preparation for trial, not to prepare for an examination by court-appointed psychiatrists, and there had been ample time to prepare for trial if Griffith's counsel had renewed the request for a defense psychiatric expert. 91 Wash. 2d at 578-79.

In his habeas petition, Griffith argues that he had a constitutional right to the appointment of a defense psychiatric expert under Ake v. Oklahoma, 470 U.S. 68 (1985). In that case, the Supreme Court stated:

We therefore hold 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. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.

470 U.S. at 83.

After the judge decided to withhold decision on Griffith's initial request for a court-appointed defense psychiatrist, Griffith was examined by two court-appointed psychiatrists. After that examination, Griffith's counsel moved to withdraw the insanity plea, and specifically declined to renew the request for a defense psychiatric expert. While Griffith, acting pro se, made a motion to reinstate his insanity plea he did not renew the request for a court-appointed defense psychiatrist. In view of the withdrawal of the request for a psychiatric expert, and the failure to renew the request we conclude that the district court did not err in rejecting this claim.

AFFIRMED.