David Lewis Rice v. Tana Wood, Superintendent, David Lewis Rice v. Tana Wood, Superintendent

44 F.3d 1396 David Lewis RICE, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant. David Lewis RICE, Petitioner-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellee. Nos. 93-99011, 93-99012. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 18, 1994. Decided Jan. 4, 1995. Order Granting Rehearing En Banc April 10, 1995. Thomas J. Young, Asst. Atty. Gen., Corrections Div., Olympia, WA, for respondent-appellant, cross-appellee. Robert S. Mahler and Peter Offenbecher, Federal Public Defenders, Seattle, WA, for petitioner-appellee, cross-appellant. Appeals from the United States District Court for the Western District of Washington. Before: WALLACE, Chief Judge, D.W. NELSON and LEAVY, Circuit Judges. Opinion by Judge Leavy; Partial Concurrence and Partial Dissent by Judge Wallace. LEAVY, Circuit Judge: 1 Following a jury trial in Superior Court for King County, Washington, David Lewis Rice ("Rice") was found guilty of four counts of aggravated first degree murder and sentenced to death. The Supreme Court of Washington upheld Rice's conviction and sentence on direct appeal, and denied both of his subsequently filed Personal Restraint…

Opinion by Judge Leavy; Partial Concurrence and Partial Dissent by Judge Wallace.

Following a jury trial in Superior Court for King County, Washington, David Lewis Rice (“Rice”) was found guilty of four counts of aggravated first degree murder and sentenced to death. The Supreme Court of Washington upheld Rice’s conviction and sentence on direct appeal, and denied both of his subsequently filed Personal Restraint Petitions (“PRPs”). Rice filed a petition for writ of habeas corpus in federal district court, alleging numerous errors at both the guilt and penalty phases of his trial. The district court denied relief as to all of Rice’s claims relating to his conviction, granted the petition with respect to one of his sentencing claims, and declined to reach the merits of the remaining issues. We affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PRIOR PROCEEDINGS 1

On Christmas Eve 1985, guests arrived at the home of Seattle attorney Charles Gold-mark to find a grisly sight: Charles, his wife, Annie, and their two sons, Colin and Derek, had been viciously assaulted and left to die. The coroner pronounced Annie dead at the scene; Charles, Colin, and…

concurring in part and dissenting in part:

I concur with the majority opinion with respect to the cross-appeal. However, I cannot agree with the majority’s analysis of the direct appeal pertaining to Rice’s absence *1405 from the courtroom when the jury returned the penalty phase verdict. I therefore dissent from this portion of the majority’s opinion.

I

The district court determined that Rice “could not” and “did not” waive his right to be present when the jury returned the penalty phase verdict. It is not clear what the district court meant when it stated that Rice “could not” waive the right. I do not believe that the district court meant that Rice was not competent to waive his right, because that issue was never raised. Indeed, there is no question that Rice was competent to stand trial. His attorney conceded that he was competent to stand trial, and the jury had rejected his insanity defense at the guilt phase. If the district judge thought that Rice “could not” waive his presence at sentencing as a constitutional matter, he was wrong as a matter of law. “There is no principled basis for limiting to noncapital offenses a defendant’s ability knowingly, voluntarily, and…