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Mickey v. Ayers

June 7, 2010


Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding D.C. No. CV-93-00243-RMW.

The opinion of the court was delivered by: O'scannlain, Circuit Judge


Argued and Submitted December 9, 2009 -- San Francisco, California

Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.


We consider an appeal and a cross-appeal presenting consolidated issues arising out of a California double murder conviction and death sentence.



A California jury convicted Douglas S. Mickey of two first-degree murders, making special circumstance findings that authorized the death penalty. The state court jury returned a death verdict. The facts, as aptly discussed by the California Supreme Court in People v. Mickey, 54 Cal. 3d 612 (1991), and undisputed by the parties, can be summarized as follows:


In September 1980, Mickey lived on an Air Force base in Japan with his wife, who worked as a nurse, and her two children. Mickey did not have a job and his family was experiencing financial difficulties. On September 17, 1980, Mickey flew to California, his home state. He stayed with Edward Rogers, a longtime friend. Mickey disclosed to Rogers that he traveled to California in order to rob and murder Eric Lee Hanson. After that, Mickey planned to travel to Alaska to kill his wife's ex-husband in order to obtain life insurance proceeds for his wife and children, who were beneficiaries under the policy. Although Hanson, a drug dealer, was a longtime friend of his, Mickey had a grudge against him. Mickey believed that Hanson had stolen some of Mickey's personal property. As a result, Mickey had stolen some of Hanson's marijuana crop, burying it in the ground. When Mickey returned to California, he retrieved the stolen loot and began consuming it, along with alcohol.

On September 22, Mickey drove to Hanson's home in Placer County in a car he borrowed from Rogers, arriving around 11 p.m. He armed himself with a rifle, also borrowed from Rogers, to which Mickey attached a homemade silencer. Mickey stayed overnight with Hanson and his girlfriend, Catherine Blount. Though Mickey observed Hanson counting a wad of money, he did not act on his plan to kill Hanson, and he left the next day.

On September 28, Rogers dropped Mickey off at Hanson's home, around midnight. This time, Rogers and Mickey established a rendez-vous point at a public telephone booth a few miles from Hanson's home. Mickey had armed himself with his own knife and Rogers's pistol. Hanson and Blount invited Mickey inside the home.

Shortly thereafter, Mickey murdered Hanson and Blount. He first bludgeoned Hanson with a baseball bat and slit his throat from ear to ear down to the spinal cord. He then stabbed Blount seven times in the chest. Three of the blows pierced her heart. Mickey left the house, taking substantial property with him, and drove away in Hanson's Volkswagen. He left no fingerprints.

Mickey then met up with Rogers. They transferred the stolen property to Rogers' pick-up truck and wiped the Volkswagen clean of fingerprints. Rogers convinced Mickey not to go back and burn the house to the ground. They abandoned the Volkswagen and returned to Rogers' house. They stashed the goods and Mickey tended to a wound suffered during the murders. The next day, September 30, Mickey fled to Japan.


Within a few days, the State secured a statement from Rogers implicating himself and Mickey in the crimes, in exchange for Rogers' immunity. The State soon thereafter filed a complaint against Mickey for the double homicide, alleging five special circumstances making the crimes capital offenses. Sheriff Donald Nunes traveled to Japan, where Mickey was arrested on October 14, 1980. Nunes advised Mickey of his Miranda rights and Mickey declined to speak at that time, asking to speak to a friend who was an attorney. Although Mickey desired to waive extradition, the Japanese government would not permit a waiver.


Mickey sat in a Japanese prison until 1981. On January 12 of that year, federal marshal Robert LaRoche arrived with Sheriff Nunes and Detective Curtis Landry and, more importantly, an extradition warrant. Nunes and Landry accompanied LaRoche in order to collect evidence and to interview witnesses. On January 16, 1981, at about 3:30 p.m. Tokyo time, LaRoche, Nunes, Landry, and Mickey began the journey back to California. The law enforcement officials picked up Mickey from the Japanese detention center. Mickey was alert, healthy, jovial, and talkative, and engaged in small talk with Nunes, whom he recognized. Mickey continued to initiate small talk with Nunes on the three-hour ride to the Tokyo airport.

Around 8 p.m. Tokyo time, after waiting about an hour at the airport, Landry, who suffered from halitosis, offered Mickey a mint for Mickey's bad breath. The mint came from a bowl in Mickey's wife's house, which Landry had visited the prior day to conduct an interview. After Mickey appeared to recognize the mint, Landry asked Mickey if he knew its origin. Mickey said yes and put his head in his hands. The group then boarded the plane. Mickey sat next to Nunes and resumed small talk. He spoke of his family and hobbies and was generally pleasant and talkative. He expressed no signs of grief.

Nunes later switched seats with Landry to take a nap. Landry and Mickey then enjoyed several cups of coffee, and Mickey picked up where he left off with Nunes. He spoke of philosophy, politics, food, football, family, and California. He asked Landry about his family. Landry answered, and eventually, in the course of discussion, referenced that he watched Mickey play high-school football and knew of his brother's suicide. About two hours later, Mickey suddenly asked Landry whether Hanson and Blount were buried together. Landry replied that they had been cremated and their ashes scattered. At this point, Mickey started crying uncontrollably. He said that nothing would have happened if Hanson had not reacted as he had to the news of Mickey's theft of Hanson's marijuana crop. This lasted about twenty minutes. Landry did nothing. An hour later, Mickey resumed conversing about his family, his hobbies, and politics. The plane then landed in Hawaii, around 1:30 a.m. Tokyo time (6:30 a.m. Hawaii time). Mickey said to Landry, "Curt, I would like to continue our conversation at a later time." Landry replied, "Fine, yes."

After Mickey was checked into a Honolulu jail, LaRoche, Nunes, and Landry discussed what to do. Nunes called the Placer County District Attorney's office, which told him to ask Mickey if he wanted to speak and, if Mickey said yes, to Mirandize and then to interrogate him. Landry did so, starting the interrogation at 12:42 p.m. Hawaii time, or 7:42 a.m. Tokyo time. Mickey confirmed that he had requested the conversation and then waived his Miranda rights. During the four-hour interrogation, Mickey was alert and aware and lost and regained his composure several times. His answers to Landry's questions implicated himself in the murders and the planning. The next day, the group returned to California, where Mickey was incarcerated. While in prison there, he made further statements regarding his role in planning and executing the murders to a jailhouse informant.


The trial did not begin until two and a half years later.*fn1


The guilt phase trial began on June 21, 1983 and ran until July 20, 1983. At trial, the prosecution relied on Mickey's statements to police officers, family and friends, Edward Rogers, and a jailhouse informant. The State also introduced some of the letters Mickey penned to his wife, which showed his financial motive for the murders. And it introduced numerous photographs of the crime scene.

Mickey provided very little resistance in the way of a defense, likely because, as counsel told the trial judge before trial started, the strategy was to focus on the penalty phase because of the overwhelming evidence of guilt. Mickey did not testify and merely contested whether the prosecution met its burden as to the required mental state. He pointed to his statements, admitted by the prosecution, as evidence of self-defense or diminished capacity from voluntary intoxication. The jury convicted Mickey of both murders in the first degree and, for each of the murders, made special circumstance findings of multiple murders, intentional murder for financial gain, felony-murder-robbery, and felony-murder-burglary.*fn2

At the penalty phase, the prosecution largely rested on the nature of the crimes themselves, although it did attempt to prove prior domestic abuse through testimony of Mickey's ex-wives. Mickey, however, put on what the California Supreme Court called "substantial" evidence in mitigation. Mickey, 54 Cal. 3d at 639. Thirty lay witnesses testified as to their interaction with Mickey. Without exception, all portrayed him as a good, loving, hardworking child and youth. Notably lacking from the penalty phase was any mention of Mickey's pattern of sexual exhibitionism in his youth and young adulthood, which culminated in two and a half years of sexual abuse of his step-daughter immediately prior to the murders. The defense successfully excluded this evidence.

Instead, defense counsel cast Mickey as a good child who began drifting through life after experiencing tragedy. Defense counsel told the jury of the death of Mickey's half-brother in an automobile accident when Mickey was five years of age. Defense counsel also emphasized the death of his mother, a possible suicide, in an automobile accident when Mickey was seventeen years old, and conveyed that Mickey was very close to his mother and felt the loss deeply, turning to alcohol to dull the pain. Counsel also showed the jury that soon after that Mickey's grandfather died, and after that, his brother committed suicide.

Counsel argued that, as a result of these experiences, Mickey began abusing drugs, eventually branching out from the alcohol he abused after his mother's death into more serious drugs like marijuana, mushrooms, PCP, and LSD. Mickey became entangled with the drug culture, through which he met Hanson. Two experts, Drs. Jules Burstein and David Smith, explained the effect of the drug abuse on Mickey. Both testified that Mickey lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to law at the time of the murders because of "polysubstance" drug abuse combined with a delusional system in which Hanson was the oppressive master and Mickey the apprentice. They based their findings largely on interviews with Mickey himself. The prosecution produced its own expert on rebuttal to counter Burstein and Smith.

Despite this thirty-witness presentation, the jury returned a death verdict.


Mickey appealed his convictions to the California Supreme Court. He raised numerous issues arising from the guilt and penalty phases. The California Supreme Court affirmed the judgment in a thorough, ninety-five-page opinion. Mickey, 54 Cal. 3d at 612. It did rule for Mickey on two minor issues, holding that Mickey was eligible for only one of the multiple murder special circumstance findings because one case could only support one such finding, no matter how many murders. Id. at 678. It also held that the murder-for-financial gain special circumstance findings were inappropriate because the murder was committed neither as a murder-for-hire nor for insurance proceeds. Id. at 678-79. Neither of these two holdings affected the ultimate affirmance of the death penalty because the remaining special circumstance findings were upheld.

Relevant for our purposes, the California Supreme Court rejected Mickey's argument that the trial judge erroneously denied his motion to suppress his in-flight and Hawaii admissions. The court held that there was no due process violation for the in-flight admissions because there was no state coercion. Rather, the defendant initiated the discussion. The same was true of the Hawaii admissions. Moreover, it held that there was no Miranda violation with respect to the in-flight admissions because there was no custodial interrogation. And there was no Miranda violation for the Hawaii admissions because the defendant started the conversation.

The Supreme Court of the United States denied certiorari. Mickey v. California, 506 U.S. 819 (1992).


Mickey then began pursuing federal habeas relief. After he successfully moved for a stay of his execution and appointment of counsel, he filed a petition for a writ of habeas corpus in 1995. Proceedings on that petition were stayed pending exhaustion of certain claims in state court, which was completed in 1996. Mickey also filed for post-conviction relief in the ...

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