Menendez v. Terhune
| Decision Date | 07 September 2005 |
| Docket Number | No. 03-56023.,No. 03-55863.,03-55863.,03-56023. |
| Citation | 422 F.3d 1012 |
| Parties | Lyle MENENDEZ, Petitioner-Appellant, v. C.A. TERHUNE, in his capacity as head of the California Department of Corrections, Respondent-Appellee. Erik Galen Menendez, Petitioner-Appellant, v. Glen A. Mueller; Attorney General of the State of California, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cliff Gardner, San Francisco, CA, for the petitioner-appellant.
Lawrence A. Gibbs, Berkeley, CA, for the petitioner-appellant.
Kenneth C. Byrne, Supervising Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CV-00-02359-MLR, CV-99-08552-R.
Before: KOZINSKI, TROTT, and CLIFTON, Circuit Judges.
In this consolidated appeal, Lyle and Erik Menendez1 appeal the district court's denial of their petitions for habeas corpus. Pursuant to 28 U.S.C. § 2253(c), we granted a certificate of appealability on five issues: (1) whether the admission of a tape-recorded session between Petitioners and their therapist violated Petitioners' constitutional due process rights as elaborated in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (2) whether the trial court's decision not to instruct the jury on imperfect self-defense violated Petitioners' rights to due process; (3) whether the exclusion of certain evidence violated Petitioners' due process rights in that the trial court required that they first lay a foundation, which as a logical matter could only be done if they testified; (4) whether the exclusion of certain lay and expert testimony violated Petitioners' due process rights and Sixth Amendment right to present a defense; and (5) whether Lyle's due process rights were violated when the prosecutor commented on the lack of evidence regarding abuse and the lack of experts, both of which the prosecutor had successfully moved to exclude.2
We have jurisdiction pursuant to 28 U.S.C. § 2253; we reject all five contentions; and we affirm.
Erik and Lyle shot and killed their parents, Jose and Kitty Menendez, in the family's Beverly Hills home on August 20, 1989. The theory of the prosecution supporting charges of murder was that these killings were motivated by greed and the brothers' desire to acquire by early inheritance their parents' considerable wealth. However, after abandoning a story cooked-up for police investigators that the Mafia had killed their parents, Erik and Lyle claimed at trial that the killings were the result of years of physical, sexual, and psychological abuse, and thus not murder, but only manslaughter.
Erik testified that a few days before the murders, Jose told Erik that Erik would be required to spend several nights a week at home while attending college at UCLA. This, Erik testified, shattered his dream of going away to college and "getting away from [his] father." Erik testified also that five days before the murders, as a result of this news from his father, Erik told Lyle, who was home from the East Coast for the summer, that their father had been sexually abusing Erik for years.
On August 15, 1989, Lyle allegedly confronted Jose about the abuse while Erik was out of the house. Lyle recounted the confrontation to Erik, who testified Lyle told him that Jose said "go to Princeton, forget the conversation ever happened, and just not ruin his [Lyle's] life over this, don't get involved over this." When Lyle responded to Jose, "No, it's going to stop," Jose said "something along the lines of: `You've made your decision and Erik's made his and now he [Jose] had to make his.'" After the confrontation, Jose left for a business trip, and when he returned, he allegedly went to Erik's bedroom and screamed As a result of this confrontation and years of threats by Jose, Erik testified he thought his parents would kill him.
Erik and Lyle armed themselves on August 18, 1989, two days before they would kill their parents. On that day, Lyle and Erik, then ages 21 and 18, respectively, tried to purchase guns at several different stores, the first in Los Angeles. After learning that handguns could not be purchased immediately, they drove from Los Angeles to San Diego, where the second store asked for identification. After quietly discussing the identification issue, the brothers decided that the store clerk would probably be suspicious that they did not promptly provide identification when asked. So, they left that store, and went to the third and final store. There, they bought two shotguns using false identification and providing non-existent addresses. When the store clerk asked why the address on his identification did not match the address he provided, Erik lied, telling the clerk that he had recently moved.
After making their secret purchase, Erik and Lyle drove back to Los Angeles, where they decided to practice firing their newly-purchased shotguns. They went to a firing range, but were turned away because the range did not allow shotguns. Additionally, having been told that the birdshot ammunition they had loaded into their new guns was "useless" for "stopping" a person, Erik and Lyle purchased buckshot ammunition, ammunition that presumably would "stop" a person.
The day before the murders, Jose, Kitty, Erik, and Lyle went on a planned fishing trip together. Despite their alleged fear of their parents, Erik and Lyle left their new shotguns at home because they were too large to conceal. The brothers and parents had very little interaction on this trip. The trip was uneventful, however, and the family returned home late that evening. Erik testified that Jose came to Erik's room that night and pounded on the door, but Erik refused to open it because he was afraid. Jose left.
The next morning was August 20, the day of the murders. Lyle called a friend, Perry Berman, and talked about getting together that evening. Berman made plans with Lyle to meet the brothers at the "Taste of L.A." food festival after Erik and Lyle went to see "Batman," a movie Lyle said would end around 9:00 or 9:30 that evening. Erik and Lyle never went to see the movie, and they never turned up at the festival to meet Berman.
Erik testified that Lyle had an argument with Jose and Kitty about the brothers' plan to go out for the evening, following which Jose told Erik to go to his room. Allegedly fearing that his father wanted to have sex with him, Erik nevertheless complied and went up the stairs, but he lingered to listen and heard Lyle tell Jose, According to Erik, Jose and Kitty then went into the den and closed the doors.
Lyle went up the stairs, where Erik testified that he told Lyle, He further testified that "[Lyle] told me not to worry about that." Lyle, according to Erik's testimony, was pale and shaking, when Lyle said,
Jose and Kitty remained in the den with the television set on. The record is unclear as to how much time elapsed between this final confrontation and the murders, but it was enough time for Erik and Lyle to separate. Erik went to his bedroom where he retrieved his new shotgun from the closet. He then went back downstairs and out to the car. There, he removed the birdshot ammunition from his gun and replaced it with buckshot. Lyle rejoined him at the car where Lyle, too, began loading his shotgun.
Around 10:00 p.m., Erik and Lyle's parents were unarmed and in the den, watching television and eating. Lyle and Erik burst through the doors of the den and fired thirteen to fifteen shotgun blasts at their parents. Erik testified that he thought his father was standing, but said also, Before the massacre was over, Erik and Lyle left the house and went to the car where Lyle reloaded. They returned to the house, where Lyle fired one more shot. The final shot, which was apparently fired while Kitty was still alive, was administered while the muzzle of the shotgun was in contact with her left cheek. Jose also had a contact wound to his head.
Jose and Kitty died at the scene from multiple gunshot wounds — four shots to Jose and nine shots to Kitty. Jose was found with gunshot wounds to his legs that were inflicted after death.
While their parents lay dead on the floor of the den, Lyle and Erik began extensive cover-up efforts. First, they collected the expended shotgun shells, concerned that their fingerprints might be on them, and they left the house. Then, to support the story Lyle previously told Perry Berman, the brothers drove to the movie theater and purchased alibi tickets for "Batman." The brothers had to discard the tickets after noticing that the tickets were time-stamped and would not provide an adequate alibi. Next, Erik and Lyle stopped at a gas station, where they dumped the shotgun shells, their bloody clothes, and their bloody shoes in a trash can.
Around 11:00 p.m., an excited-sounding Lyle called Berman and falsely told him that he and Erik had gotten lost on the way to the festival, and that by the time they arrived there, the festival was closed....
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