Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1991)

Donald LESTER, Petitioner-Appellant,v.Harold FALK, Director, Department of Corrections, Respondent-Appellee.

No. 90-16135.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1991.Decided May 30, 1991.

Before SCHROEDER, FLETCHER and FERGUSON, Circuit Judges.


Donald Lester appeals the district court's denial of his section 2254 habeas corpus petition. Lester was convicted of murder by a jury in Hawaii state court. He was sentenced to a life term without possibility of parole under Hawaii's murder by a hired killer statute, Haw.Rev.Stat. Sec. 706-606(a) (iii), repealed by 1986 Haw.Sess.Laws 314. Lester claims that the murder by a hired killer statute was unconstitutionally vague and that he was denied his sixth amendment rights. We affirm.

Lester first claims that Hawaii's murder by a hired killer statute, since repealed, was unconstitutionally vague because it did not define the phrase "hired killer."1  Lester claims that varied meanings of the term "hire" created ambiguity as to what conduct the statute prohibited and left unduly broad discretion in the hands of the state. The district court properly rejected this argument.

The due process clause requires that a penal statute "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). The void-for-vagueness doctrine is concerned both with providing actual notice to individuals and with establishing minimal guidelines for law enforcement. Id. at 357-58; Smith v. Goguen, 415 U.S. 566, 572-73 (1974). As a criminal statute, Hawaii's murder by a hired killer provision is subject to a stricter level of scrutiny than a civil statute. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).

An ordinary person certainly would understand what conduct was prohibited by the statute--Lester himself concedes that he knew in 1978 that it was illegal to hire someone to murder his wife--and Lester has not demonstrated any significant potential for arbitrary or discriminatory enforcement of the statute.

Lester also claims that the trial court erred in excluding evidence of a statement made by Elizabeth Tuttle, a key prosecution witness. Lester asserts that Tuttle screamed: "Michelle Lester's murderer is moving. There, I've said it. Are you satisfied?" He claims that Tuttle was characterizing herself as Michelle Lester's murderer. At trial, Lester was permitted to ask Tuttle if she had made the alleged admission and she denied making the statement. The trial court refused to allow any additional questions or to call witnesses to testify concerning the statement.

Lester was given wide latitude in cross-examining Tuttle. He was permitted to question Tuttle about her use of drugs, her sexual relationship with Lester, her immunity agreement with the government, how she cooperated with police to tape Lester's incriminating statements, threats she allegedly made to another witness, and how she lied to police, among other things. Lester's counsel was permitted to ask Tuttle about the alleged admission, which Tuttle denied making. The trial court's determination that additional questioning was not appropriate was well within its discretion; there was an insufficient offer of proof that the statement was ever made, and it was at best collateral to the issues the jury was to decide. See Perry v. Rushen, 713 F.2d 1447, 1454-55 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 21


The magistrate found that Lester's statutory challenge presented only a claim of state law and thus was not entitled to section 2254 review. See Engle v. Isaac, 456 U.S. 107, 119 (1982). The district court properly rejected this finding. The Supreme Court has repeatedly held that a penal statute may violate the due process clause for vagueness if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Batchelder, 442 U.S. 114, 123 (1979) (quoting United States v. Harriss, 347 U.S. 612, 617 (1954))