Appeal from the United States District Court for the for the District of Arizona D.C. No. 4:00-cv-00050-FRZ Frank R. Zapata, Senior District Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Callahan
March 10, 2011-Pasadena, California
Before: Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
Thomas Arnold Kemp raises three issues in his appeal from the district court's denial of his habeas petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnaping and from his capital sentence. First, Kemp asserts that his rights to be free from compelled self-incrimination and to counsel under the Fifth, Sixth, and Fourteenth Amendments were violated when correctional officers asked him questions and his incriminating statements were admitted at trial. Kemp also argues that the district court abused its discretion in denying him discovery to prove this claim. Second, Kemp contends that without his incriminating statements, which should have been suppressed, the prosecution failed to prove beyond a reasonable doubt that he possessed the requisite mental state for the imposition of the death penalty. Third, Kemp claims that he was denied due process under the Fourteenth Amendment when the prosecutor was dilatory in giving notice that he would introduce evidence that Kemp committed a homosexual sexual assault, the trial court failed to rule the subsequent bad act admissible until after the jury had been voir dired, and the trial court then denied Kemp's request to voir dire the jury on homosexual bias. We affirm. Kemp has not shown that the Arizona Supreme Court's opinion affirming his conviction and capital sentence was either "an unreasonable application of, clearly established Federal law," or "an unreasonable determination of the facts," as required for relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254.
A. Kemp's Criminal Activities.
The underlying criminal acts were described as follows by the district court:
On July 11, 1992, at approximately 11:15 p.m., Hector Juarez awoke when his fiancee, Jamie, returned from work to their residence at the Promontory Apartments in Tucson. A short time later, Juarez left to get something to eat. Jamie assumed he went to a nearby fast food restaurant.
At around midnight, Jamie became concerned that Juarez had not come home and began to look for him. She found both her car and his car in the parking lot. Her car, which Juarez had been driving, was unlocked and smelled of fast food; the insurance papers had been placed on the vehicle's roof. After checking with Juarez's brother and a friend, Jamie called the police.
Two or three days before Juarez was abducted, Jeff-ery Logan, an escapee from a California honor farm, arrived in Tucson and met with Petitioner. On Friday, July 10, Logan went with Petitioner to a pawn shop and helped him buy a .380 semi-automatic handgun. Petitioner and Logan spent the next night driving around Tucson. At some time between 11:15 p.m. and midnight, Petitioner and Logan abducted Juarez from the parking area of his apartment complex.
At midnight, Petitioner used Juarez's ATM card and withdrew approximately $200. He then drove Juarez out to the Silverbell Mine area near Marana. Petitioner walked Juarez fifty to seventy feet from the truck, forced him to disrobe, and shot him in the head twice.
Petitioner then made two unsuccessful attempts to use Juarez's ATM card in Tucson. The machine kept the card after the second attempt. Petitioner and Logan repainted Petitioner's truck, drove to Flagstaff, and sold it. They bought another .380 semi-automatic handgun with the proceeds.
While in Flagstaff, Petitioner and Logan met a man and woman who were traveling from California to Kansas. They abducted the couple and made them drive to Durango, Colorado; in a motel room there, Petitioner forced the man to disrobe and sexually assaulted him.
Later, Petitioner, Logan, and the couple drove to Denver, where the couple escaped. Logan and Petitioner separated. Logan subsequently contacted the Tucson police about the murder of Juarez. He was arrested in Denver.
With Logan's help, the police located Juarez's body. Later that day, the police arrested Petitioner at a homeless shelter in Tucson. He was carrying the handgun purchased in Flagstaff and a pair of handcuffs. After having been read his Miranda rights, Petitioner answered some questions before asking for a lawyer. He admitted that he purchased a handgun with Logan on July 10. He said that on the day of the abduction and homicide he was "cruising" through apartment complexes, possibly including the Promontory Apartments. When confronted with the ATM photographs, he initially denied being the individual in the picture. After having been told that Logan was in custody and again having been shown the photographs, Petitioner said, "I guess my life is over now."
B. Kemp's Incriminating Statements While in Jail.
After he was arrested, Kemp was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Later in the evening, Kemp was interviewed by Detective Salgado, but when he was asked about his contact with Juarez, Kemp invoked his right to counsel.
Kemp was taken to the Pima County Jail. During his stay in the jail, Kemp made two incriminating statements. The district court described the events surrounding the statements as follows:
John Jackson, an officer at the Pima County Jail, walked by Petitioner's cell in the disciplinary pod and they had a three to five minute conversation. Jackson did not recall who initiated the interaction. During the conversation, Petitioner volunteered that he had requested to be moved to the disciplinary pod "because the guy I killed was a Mexican. That the Mexicans in the pod were after him, and he wanted to be moved from there for his own protection." At the time, Jackson did not write a report on the conversation.
Kippy Compton, a Pima County Sheriff's Department correctional officer, recognized Petitioner from a general population pod at the jail. On December 14, 1992, he transported Petitioner within the jail and saw on his identification card that he was in AS1, which is a protective custody status. Compton testified that he must have been off the day they were briefed about Petitioner's status change; the officers are briefed because they need to be aware of any other inmate(s) the person may need to be kept away from. Compton asked Petitioner why he was in AS1 and testified that Petitioner gave the following response: "that Hispanic guy I killed or the guy I killed was Hispanic and the Hispanic guys in the pod think it's racially motivated, and he - he said the whites said they can't help me or won't help me, and so I asked to be put on protective custody." Compton testified that he was not trying to ask Petitioner about his case because the inmates are not going to talk about their cases and he didn't care. Compton did not question Petitioner further, did not threaten him, or make any promises to him. Compton testified that inmates are expected to respond when questioned by a correctional officer. After thinking about it, Compton decided to write the conversation up in a memo.
While Jackson was carpooling home with Compton one evening, Compton mentioned his conversation with Petitioner and then Jackson mentioned that he had a similar statement from Petitioner. After that conversation, Jackson prepared a report about his conversation with Petitioner.
Kemp filed a pretrial motion to suppress the two statements he had made to Jackson and Compton. The trial court held a hearing on the motion at which both officers testified. The state court found that Kemp's statements to the officers were voluntary and admissible because the conversations were informal and they were not intended or designed to elicit incriminating responses. The officers testified at trial consistent with their testimony at the suppression hearing.
C. The Alleged Curtailment of Voir Dire.
In September 1992, Kemp, through his attorney, first sought discovery with respect to possible prior and subsequent bad acts that the prosecutor might seek to present at trial. At a December 1992 pretrial hearing, the prosecutor agreed to give Kemp a list of prospective witnesses and noted that in the afternoon he would be interviewing the "couple that were kidnaped out of Flagstaff." On January 25, 1993, Kemp filed a motion seeking discovery of evidence concerning the alleged kidnaping of the couple, which the trial court granted.
Apparently, the State did not provide Kemp with the information requested, and on May 26, 1993, counsel filed two motions in limine to preclude the presentation of any evidence of any prior or subsequent bad acts by Mr. Kemp. One of the motions specifically requested that the kidnaped couple "not be allowed to testify as to any inappropriate sexual behavior by Mr. Kemp towards [the husband]."
On June 2, 2003, the case was called for trial in the Superior Court of Arizona, in and for the County of Pima. The judge was intent on selecting a jury, and when Kemp's attorney, Mr. Larsen, noted that there were unresolved pretrial motions, the court indicated that it intended to begin jury selection "before we hear anything on the motion for change of venue." The prosecutor, Kenneth Peasley, tendered a new witness list, which included the husband abducted in Flagstaff. He indicated that the husband would present evidence concerning: (1) Kemp's silence to statements made by Logan in the husband's presence; (2) the husband's kidnaping; and
(3) that "in the room in Durango Mr. Kemp attempt[ed] to sexually molest and assault" the husband. Peasley further claimed that the sexual assault was "proof of all motives that Mr. Kemp has for the killing, and also explains conditions here in Tucson." After Peasley's comments, the trial judge stated "I don't need to hear from you on that now, Mr. Larsen."
A little later, before potential jurors entered the courtroom, Larsen reiterated that he wanted to know "prior to trial whatphysical evidence and exhibits" the prosecutor intends to use. The prosecutor apparently stated that he intended to introduce materials seized from Kemp, including photographs of naked men, but would make no reference to Kemp's sexually explicit materials and alleged homosexual act in his opening statement. The trial court indicated that the matter would be considered later.
The trial court then asked the prosecutor and defense counsel whether they were ready to proceed and each answered yes. The prospective jurors were sworn in and the judge proceeded to voir dire the jury panel. When the trial judge asked counsel to pass on the panel, defense counsel stated that he had a number of questions. Defense counsel requested a ruling on the evidence that the prosecutor sought to introduce "regarding any sexual matters as it pertains to both [victims]." Larsen was particularly concerned with the possible impact of allegations of sexual molestation on a juror whose father-inlaw had been convicted of an incest charge. The trial judge proceeded to ask additional questions of that juror, but did not mention homosexuality. When defense counsel objected that the questions did not begin "to approach what was necessary," the trial judge responded that Larsen had made his record.
After the jury was empaneled, the trial court considered the outstanding motions. The judge, Larsen, and Peasley engaged in an extended discussion of the prosecutor's desire to have the husband testify concerning Kemp's alleged sexual assault and to present other evidence of Kemp's homosexuality. Larsen argued that the alleged incident was irrelevant and should not be admitted as it might inflame the jury. At one point he stated "if we are going to allow this - this onslaught of homosexual activity I want to re-voir dire the jury. I want to find out what their thoughts are on homosexuality." The trial judge eventually determined that the "sexual contact with [the husband] is sufficiently relevant to allow that to be admitted into evidence." The trial judge, however, limited the other evidence that could be admitted. The next day, defense coun- sel reiterated his objections to the ...