Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

This is a habeas corpus petition in which California state prisoner Kenneth Gage challenges pro se his conviction for first degree murder with special circumstances. Although Gage asserts a variety of constitutional errors, all of them revolve around the failure of the police to collect or preserve evidence. The district court denied Gage's petition on the grounds that the evidence would not have been exculpatory. We affirm the district court's ruling.¹ 

FACTUAL BACKGROUND

Gage and his fiancée lived together in a house in Santa Clara. The murder victim, Dashelle Ailanjian, and her boyfriend at the time of the crime were living with them on a temporary basis. Ailanjian's boyfriend was a member of the Hell's Angels gang with a police record. Both were known to have weapons. Gage and his fiancée testified at trial that they were afraid of Ailanjian and her boyfriend.

Gage and his fiancée went to visit relatives in Illinois. While they were away, the police arrested Ailanjian's boyfriend for a parole violation. In addition, a number of valuable items were taken from the house. Ailanjian claimed that someone had broken into the house and stolen the property. Gage believed that Ailanjian and her boyfriend had stolen the items and put them in a public storage locker. Various evidence presented at trial suggests that Gage was correct. Gage also believes now that Ailanjian intended to blackmail him and his fiancée using sexually explicit photographs.

On the evening of the murder, Gage told his fiancée to leave the house because he wanted to talk to Ailanjian about the missing property. Gage confronted Ailanjian with his suspicions and the two of them got into a heated argument. Gage admits that he hit her with a hammer a number of times. The evidence shows that the two of them struggled around the living room, down a hall and into the kitchen where Ailanjian fell to the floor.

Gage's fiancée returned to find Ailanjian bleeding on the floor of the kitchen with Gage standing above her holding a gun and a hammer. Ailanjian was at least conscious enough to ask for help. Gage's fiancée retreated to the bedroom. Gage admits that he "pointed the gun at Ailanjian and threatened her, telling her to tell the truth." Petition for Writ of Habeas Corpus, Statement of Facts at 29, Gage v. Borg, No. C-89-1300 (N.D. Cal. 1989).² 

From the bedroom, Gage's fiancée heard shots fired in the kitchen. Gage came into the bedroom shortly thereafter, convinced that Ailanjian was dead. He was wrong. While Gage and his fiancée were talking in the bedroom, Ailanjian managed to leave the house. A neighbor saw Gage run after her and drag her back into the house struggling and screaming. Gage then shot Ailanjian in the head at point blank range. When the police arrived, Gage gave his consent to a search and tape recorded a confession, which was played at trial. He told the police about the storage locker that he believed contained his stolen property. The police did not search the locker until after Ailanjian's boyfriend had emptied it.

The coroner testified at the preliminary hearing that Ailanjian's body had five gunshots wounds, three to the head, one to the upper arm, and one to the abdomen. She also had two broken ribs, although there were no surface wounds above the broken ribs. There were numerous deep wounds to the head that appeared to have been made by the hammer. Her body also had numerous scratches, bruises, and lacerations including ones to the face, head, chest, shoulders, arms, legs, hands, and the base of the spine. Her death was caused by a combination of the gunshot wounds to the head and the multiple blows to the head.

Gage claims that the confrontation was not a cold blooded attempt to beat information out of Ailanjian but rather a heated argument that exploded into violence as the two of them struggled over various weapons in the house. In particular, he claims that he did not hit her with the hammer until she reached for his jacket that contained a gun. It was this gun that Gage eventually used to kill her. He also claims that he stopped hitting her once she let go of the jacket.

The jury convicted Gage of first degree murder with the special circumstance of torture. At the penalty phase, the jury sentenced Gage to life without parole rather than the death penalty. Gage appealed his conviction to the California Court of Appeal and the California Supreme Court as well as bringing a state habeas petition. All were eventually denied on the merits. He then filed the current federal petition.

FAILURE TO COLLECT AND PRESERVE EVIDENCE

Gage's primary claim is that he was denied due process because the police failed to collect and/or preserve evidence that would have supported his version of the events. These items were: 1) the stolen property allegedly stored in Ailanjian's locker; 2) fingerprint evidence on the gun and hammer, which he claims would have shown that she had her hands on them at some point; 3) fingerprint evidence from a gun and ammunition belonging to Ailanjian which were located in her car; 4) blood on Gage's jacket; 5) fingerprints on sexually explicit photos, which the police found in Ailanjian's purse in her car; and 6) an ashtray, plate, and paring knife, which Gage claims the victim hit him with as they were struggling through the house and allegedly would have contained her fingerprints and his blood. There are two types of evidence here: evidence that the police failed to collect, such as the ashtray and the goods in the locker; and evidence that the police collected but failed to preserve, such as fingerprints from the murder weapons.

The Supreme Court has held that a due process violation may occur when the police fail to properly subject items in their possession to evidentiary tests. See Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988). Given that the evidence is only potentially exculpatory, the petitioner must show bad faith by the police. Id. In addition, this court has held that if the police fail to collect potentially exculpatory evidence, defendants also can claim a due process violation if they can prove bad faith. See Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989).

The district court dismissed Gage's habeas petition on the grounds that even if the evidence would have showed what Gage claimed, it would not have been made any difference in the outcome of his trial. The evidence either was not exculpatory or would not have played a significant role in his defense. We agree.

The district court is correct that none of the evidence could have affected the first degree murder verdict. It is not an excuse for murder that the victim stole the defendant's property or that she may have intended to blackmail him. Thus, the stolen property in the locker and her fingerprints on sexually explicit photos would not have exonerated him.

The victim's fingerprints on the murder weapons and various projectiles also do not provide an excuse for murder. Gage certainly cannot claim self defense given that he ran after her, dragged her back into the house, and fired the final shots at point blank range. The missing evidence could only show that the two of them struggled or that the victim fought back during the assault. Neither scenario will excuse the murder in light of the sequence of events.

Gage also claims that evidence concerning a gun and ammunition belonging to the victim would have helped his defense. These items, however, were not in the house at the time of the assault. As the district court pointed out, a murder is not excused by the fact that the victim possessed a gun but was not threatening the killer with it.

Finally, Gage claims that if his jacket had been subjected to timely tests, the tests would have revealed blood stains.³  At trial, the prosecution argued that Gage and the victim could not have struggled over possession of the jacket because the jacket had no blood stains on it.

Although blood on the jacket might have given some support to Gage's version of events, it would not have made a significant difference. Much of the house was spattered with the victim's blood. Blood on the jacket would not have proven any particular sequence of events, only that the jacket was in the vicinity of the violence.

In sum, none of the uncollected or unpreserved evidence could have affected Gage's conviction for first degree murder.

B. The Finding of Special Circumstances of Torture

Gage claims that the missing evidence would have shown that he did not have the requisite intent for the special circumstance of torture. We disagree.

1. The Elements of the Torture Special Circumstance

The torture special circumstance requires the intent to cause "cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose." People v. Davenport 41 Cal. 3d 247, 267, 710 P.2d 861, 872, 221 Cal. Rptr. 794, 805 (1985). The killer must intend to inflict extreme physical pain, no matter how long the duration. California Penal Code Sec. 190.2(a) (18) (Supp.1991). The California courts have observed that severe pain occurs in most homicides. Davenport, 41 Cal. 3d at 265, 710 P.2d at 871, 221 Cal. Rptr. at 804. To find torture, therefore, the killer must not be satisfied with killing alone but wishes to punish, execute vengeance on, or extort something from the victim. Id. at 267, 710 P.2d at 872, 221 Cal. Rptr. at 805. It is " 'the cold blooded intent to inflict pain for personal gain or satisfaction' which sets the torture murderer apart from others who kill." Id. at 269-70, 710 P.2d at 872, 221 Cal. Rptr. at 807 (quoting People v. Wiley, 18 Cal. 3d 162, 173, 554 P.2d 881, 887, 133 Cal. Rptr. 135, 141 (1976) (in bank)).

Gage was convicted under a newly passed special circumstances statute. The trial judge declined to instruct the jury that the torture special circumstance required an intent to torture. After Gage's conviction but during his direct appeal, the California Supreme Court held in a separate case that the law should be read to require intent to torture. People v. Davenport, 41 Cal. 3d 247, 267, 710 P.2d 861, 872, 221 Cal. Rptr. 794, 805 (1985). The court then remanded Gage's case to the court of appeal for a determination of whether intent existed as a matter of law. The court of appeal ruled that intent to torture existed as a matter of law. See People v. Gage, No. A024325, at 6 (Cal.Ct.App. Oct. 20, 1988).

Immediately we confront a Sandstrom question. The Supreme Court has held that failure to have a jury find every element of a crime is a federal constitutional error. Sandstrom v. Montana, 442 U.S. 510, 524 (1979); see also People v. Garcia, 36 Cal. 3d 539, 550, 684 P.2d 826, 832, 205 Cal. Rptr. 265, 271 (1984). The Court, however, has refused to extend this logic to punishment decisions such as those included in the determination of special circumstances. See Cabana v. Bullock, 474 U.S. 376, 385-86 (1986); see also People v. Odle, 45 Cal. 3d 386, 411, 754 P.2d 184, 198, 247 Cal. Rptr. 137, 151 (1988). Despite this, the Court has held that if state law creates an entitlement to a jury finding on elements of a punishment decision, the due process clause implies that appellate findings do not suffice. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); see also Cabana, 474 U.S. at 387 n. 4 (interpreting Hicks) ; Odle, 45 Cal. 3d at 411-12, 754 P.2d at 198, 247 Cal. Rptr. at 151 (same).

California law has created such an entitlement. A defendant under California law is specifically entitled to a jury finding on each element of a special circumstance. Odle, 45 Cal. 3d at 412, 754 P.2d at 199, 247 Cal. Rptr. at 152; Garcia, 36 Cal. 3d at 552, 684 P.2d at 833, 205 Cal. Rptr. at 271-72. Thus, Gage was deprived of a federal due process right by the trial court's failure to instruct on intent to torture. Such error does not require reversal, however, if it can be judged harmless.

The Supreme Court fixed the "harmless error" standard when it observed that, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Coleman v. McCormick, 874 F.2d 1280, 1288 (9th Cir. 1989) (en banc), cert. denied, 110 S. Ct. 349 (1989). This court recently reaffirmed that harmless error analysis applies when a court fails to instruct the jury on the element of intent. Martinez v. Borg, No. 89-56163, slip op. 5189, 5192-93 (9th Cir. April 25, 1991); see also Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom errors are subject to harmless error analysis); Hennessy v. Goldsmith, No. 89-16251, slip. op. at 4220, 4220-23, 4224-26 (9th Cir. April 1, 1991) (failure to instruct on the issue of voluntary release in a kidnapping case was harmless error). The Martinez panel described the "method of harmless error review for instructional error cases" in the following manner: "The error is harmless if no rational jury could have made [the findings that it did] without also finding the omitted or presumed fact to be true." Id. at 5194. Having reviewed the evidence and applied this standard, we hold that the failure to obtain a jury finding on intent to torture was harmless error.

To find special circumstances, the jury had to find both the infliction of torture and an intent to kill. Given the circumstances of the crime a rational jury could not have found these elements without also finding an intent to torture. Gage admitted that he planned a confrontation with the victim to get information from her, that he threatened to harm her if she did not answer his questions, and that he held a gun and a hammer over her for the purpose of forcing her to give him information. We also know that he eventually gained the information he sought and that in the course of events, the victim ended up with five gunshot wounds, two broken ribs, between four and nine hammer blows to the head,⁴  and numerous other injuries. Even if we accept Gage's contention that the two of them struggled for "seconds" over the jacket and that he only hit her during this period,⁵  this cannot sanitize Gage's behavior after he gained control of the situation. Nor can it account for the battered condition of the body. Given these facts and circumstances, no rational jury could have found torture and intent to kill without finding an intent to torture.⁶  We hold, therefore, that the failure to obtain a jury finding on intent to torture was harmless.⁷ 

Finally, Gage asserts that the additional unpreserved and uncollected evidence could have affected the outcome had the jury been required to find the torture intent. We disagree. There is no question that Gage was angry at the victim, that he believed the victim had stolen his property, and that the two of them struggled during the encounter. Further evidence of these facts would not affect our conclusion that, under the facts, Gage intended to inflict extreme pain upon Ailanjian for the purpose of extracting information. Self help by an outraged victim of a theft does not include his torture of the thief. That more primitive societies might conclude otherwise is not relevant.

CONSOLIDATION

Gage contends that the district court erred in consolidating his habeas action with his action under 42 U.S.C. § 1983 (1988). This contention lacks merit.

In January of 1983, Gage filed a section 1983 action in the Northern District of California alleging that various members of the police department violated his civil rights by failing to preserve or collect exculpatory evidence. The case was assigned to Judge Schwarzer. In March of 1989, Gage filed his habeas corpus petition. The case also was assigned to Judge Schwarzer.

In an order filed on July 28, 1989, Judge Schwarzer discussed and ruled on both the section 1983 and habeas corpus actions. The cases were not consolidated. He merely issued one order addressed to both actions separately and made two separate rulings. He ordered the habeas action dismissed and ordered Gage to show cause why summary judgment should not be granted for defendants in the section 1983 action. The section 1983 action, to repeat, maintained its separate case number and was still pending before the district court when the habeas action was dismissed.

Even had the district court consolidated Gage's habeas corpus and section 1983 actions, no problem would exist. A district court has discretion to consolidate separate actions that have a common question of law or fact, and there are no limitations on the kinds of actions that may be consolidated. See Fed. R. Civ. P. 42(a); C. Wright & A. Miller, Federal Practice and Procedure Sec. 2384, at 271 (1971); cf. Welch v. Fritz, 909 F.2d 1330, 1330-31 (9th Cir. 1990) (consolidating a habeas corpus action and a section 1983 action on appeal).

INEFFECTIVE ASSISTANCE OF COUNSEL

Gage also contends that he received ineffective assistance of counsel because his attorney failed to ensure preservation and collection of the evidence discussed above. In light of our ruling that the evidence was not exculpatory, any such failure could not constitute ineffective assistance.

The decision of the district court is AFFIRMED.

FERGUSON, Circuit Judge, concurring:

I concur in the holding that the decision of the district court should be affirmed. However, I do not agree with the analysis that the failure to obtain a jury finding on intent to torture was harmless error. It is my opinion that there was no error. The California courts held as a matter of law that intent was present. I do not believe that was error.