Lavell Frierson, Petitioner-Appellant, v. Jeanne S. Woodford, Warden, of the California State Prison At San Quentin, Respondent-Appellee.

463 F.3d 982 (9th Cir. 2006)

Background

This case arises from Frierson's 1978 kidnaping and robbery of Edgardo Kramer and Guillermo Bulnes, and his execution-style murder of Kramer. The California Supreme Court described the events leading up to the shootings as follows:

On January 3, 1978, Kramer and Bulnes, two Peruvian airline employees, drove to the Holly Aire Motel in Inglewood to visit a woman named Chris. Bulnes knocked on the door to room 18 and told the young woman who responded?later identified as Zondre Wooley?that he was looking for Chris. . . . Wooley later said that Chris would arrive shortly. Bulnes and Kramer then sat in Bulnes's car parked across the street from the motel. Soon thereafter, [Frierson] approached the car and asked if they were waiting for Chris. When Bulnes said that they were, [Frierson] drew a gun and pointed it at Bulnes. He entered the back seat behind the two men, and ordered Bulnes to lock the door, close the windows, start the car and begin driving.

During the ride, [Frierson] demanded and obtained property from both victims.. . . After traveling a few blocks at [Frierson]'s direction, [Frierson] ordered Bulnes to park the car. He then shot both Bulnes and Kramer in the backs of their heads. Kramer was killed. The bullet directed at Bulnes hit him above the ear but did not penetrate his skull. He was able to grapple with [Frierson] and disarm him. Bulnes pointed the gun at [Frierson] and left the car.

After running a few steps, Bulnes fell to the ground. [Frierson] grabbed him around the neck and tried to retrieve the weapon. During the ensuing struggle, Bulnes emptied the gun's chamber by firing shots into the ground and threw the gun away. When [Frierson] released his grip, Bulnes ran to a nearby street, flagged down a passing motorist, and was driven to a hospital.

At the retrial, Bulnes . . . positively identified[Frierson] as the assailant. He had observed nothing suggesting [that Frierson] was intoxicated . . . . [Frierson] and Wooley were arrested a few hours after the crime in room 18 at Holly Aire Motel. Distinctive watches owned by the victims, [Frierson's] bloody clothing, and other incriminating evidence was found in the motel room.

An inmate who had been at the county jail when [Frierson] was initially apprehended testified that [Frierson] had recounted the entire crime to him, admitting that he had robbed and shot the two victims.

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At the penalty phase, the prosecution presented evidence that in 1972, Frierson was convicted in juvenile court for the murder of Douglas Green and committed to the California Youth Authority ("CYA"). Id. at 1200-01. On May 20, 1972, Green was killed at a Los Angeles house party from a bullet wound to the chest. Frierson, Michael Conception, and Lewis White, all 15 or 16 years old at the time, were arrested for the homicide. The investigating officer, Detective Thomas Miller, testified at Frierson's penalty trial that he interviewed the juvenile suspects for eight hours and then placed them in an interview room in order to overhear and record their conversation. Miller testified that he recognized Frierson's voice and heard Frierson confess to the Green homicide, laughing and imitating Green's attempt to breathe as he was dying. The prosecution also presented evidence showing that Frierson committed two robberies in 1977, one of which was an armed robbery. Id. at 1201.