Depetris v. Kuykendall

• Decision Date: 26 January 2001
• Docket Number: No. 99-56126,99-56126
• Citation: 239 F.3d 1057
• Parties: (9th Cir. 2001) KELLY A. DEPETRIS, Petitioner-Appellant, v. LEW KUYKENDALL; JAMES GOMEZ, Respondents-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1057

239 F.3d 1057 (9th Cir. 2001)

KELLY A. DEPETRIS, Petitioner-Appellant, v. LEW KUYKENDALL; JAMES GOMEZ, Respondents-Appellees.

No. 99-56126

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 5, 2000

Filed January 26, 2001

Cliff Gardner, San Francisco, California, for the appellant.

Eric D. Share, Deputy Attorney General, San Francisco, California, for the appellee.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding. D.C. No.CV-98-0750-MMC

Before: James R. Browning, John T. Noonan, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman; Concurrence and Dissent by Judge Noonan

SILVERMAN, Circuit Judge:

Petitioner Kelly DePetris shot and killed her husband Dana DePetris while he was asleep in bed. At trial, she claimed "imperfect self-defense" -that is, she claimed to have had an actual, honest belief that she was in imminent danger even if such a belief was objectively unreasonable. Under California law, imperfect self-defense is not a complete defense to homicide; however, if established, it negates malice and reduces murder to voluntary manslaughter.

To prove her claim that she acted out of an actual fear that her husband would make good on his threats to kill her and their baby that night, petitioner attempted (1) to offer into evidence Dana's handwritten journal and (2) to testify herself about how having read the journal contributed to her belief that Dana's threats were to be taken seriously. The journal contained Dana's chilling account of his violent behavior toward his first wife and others. The trial court excluded as irrelevant the journal and petitioner's testimony about having read it.¹ Although the California Court of Appeal held that the journal and related testimony were indeed admissible, it held that their exclusion was harmless because the jury had heard other evidence relating to Dana's propensity for domestic violence.

We hold, first, that given the subjective element of imperfect self-defense, the erroneous exclusion of this evidence was not mere evidentiary error. It unconstitutionally interfered with petitioner's due process right to defend against the charges. We also hold that this error very likely had a substantial and injurious effect on the verdict. Petitioner's credibility and state of mind were the central issues in the case. Because of the subjective aspect of imperfect self-defense, the trial court's erroneous preclusion of both the journal and especially petitioner's own testimony about having read it -to explain why she did what she did -was a crucial ruling. None of the other evidence adduced at trial could in any way make up for Kelly DePetris's own testimony about her state of mind, or for Dana DePetris's handwritten corroboration of it. We reverse.

I. Background

We take the following recitation of facts from the opinion of the California Court of Appeal in which petitioner Kelly DePetris is referred to as "appellant":

Appellant married [Dana] DePetris in November of 1990, after knowing him for seven months. Their child Travis was born in November of 1991. Around that time, appellant's mother divorced her father and DePetris threatened appellant that he would kill her if she ever left him. Incidents of DePetris becoming angry and hitting appellant began in late 1991. At times DePetris yelled profanity at the child. Appel lant testified to many instances of threats, physical violence, threats with a gun, and times when DePetris would sneak up on her and point his gun at her head. Appellant did not tell anyone or seek help because she was afraid DePetris would hurt her or take the baby. When she discussed the idea of leaving him, he said "[t]ill death do us part " and threat ened to kill her or the child.

Once, when appellant tried to leave with the baby, DePetris took the baby at gunpoint. DePetris told her if she left she would never see the baby again and appellant believed him. Another time when appellate started to leave, DePetris threatened to kill her, made her sit in the closet as punishment, then apologized. The couple's financial problems became worse in late 1993 and 1994, and there were several instances of being late in paying the rent. In April of 1994, DePetris became furious when the landlord talked to him about the overdue rent, and he yelled at the baby and told appellant to find the money. Appellant was able to borrow money to pay the April rent.

In May, the couple was again unable to pay the rent. DePetris wanted appellant to borrow the money so that he could use their paychecks for a trip to the Grand Canyon. The evening of May 10, 1994, DePetris told appellant to find the money by the next morning or he would kill her. DePetris made a threat that the appellant's "clock" was running out, which meant the end of her life. He also said he would plan how to kill her, or to kill the baby, so appellant would have to "live with that for the rest of[her] life." Appellant went to bed that night, but DePetris awakened her later that night, pointed the gun at her head, and said: "[t]ic-toc, tic-toc. You better come out with the money for rent or you are clocking out." Appellant understood this to mean that he would end her life. In the early morning, the dog awakened DePetris and appellant, and DePetris told appellant to take the dog out, stating that he needed his rest so he could "take care" of appellant later. Appellant got up, took the gun, which DePetris always required her to take with her, and went downstairs to let the dog outside. Appellant then went back upstairs to put the gun away, thinking of killing herself, and all of the times DePetris had hit her and yelled at her and the child. She denied making a decision to shoot DePetris, but felt as if she was in a dream, then she heard the gun discharge. She heard him moan, and knew he needed help. As she went to call 911, the gun went off again, and she thought she would tell the police that someone broke in and fired the gun. Paramedics took DePetris to the emergency room, where he died from a shotgun wound to the back of his head.

Police took appellant to the station, where she initially told them that an intruder shot DePetris. Eventually, appellant admitted to the police that she shot DePetris. In her interview, which was admitted into evidence, appellant said that she stood at the bed room door holding the gun for about a minute, think ing "this is the only way out, it's you know, me or him." She did not aim the gun, or check to see if it was loaded, and she did not want to fire, but thought "it's me or him."

The defense was that appellant was acting under an actual, albeit unreasonable, fear of great bodily harm or death, which is the "imperfect" self-defense of People v. Flannel (1979) 25 Cal.3d 668. At appellant's trial, friends and family members testified about appellant's injuries that resulted from DePetris's beatings. Other witnesses testified that they had not noticed any problems in the relation ship. Psychologist Nancy Kaser-Boyd testified as an expert on Battered Woman's Syndrome. She defined a battered woman as one who has suffered physical, sexual, and/or psychological abuse. She explained that battered women feel unsafe, suffer from perva sive anxiety, seldom reveal the abuse to others, and usually fail to leave the relationship. She described a cycle of violence in which the first phase consists of events that build towards violence, the second phase is the explosion of violence, and the third phase is loving contrition and apology. Kaser-Boyd testified that she had evaluated appellant, using police reports, statements, interviews of appellant and her family, and the results of physiological tests of appellant. In her opinion, appellant's test results, personality traits, and conduct were consistent with information received from other battered women.

The jury convicted appellant of first degree murder and use of a firearm. (Pen. Code, 187, 12022.5.)

The prosecution moved in limine to exclude from evidence Dana DePetris's journal and any reference to it. The journal contained Dana's own handwritten description of his physical abuse of his homosexual companion, his beating of his stepdaughter, his rape of a friend's girlfriend, and numerous accounts of his beating of his first wife, including the breaking of her eardrum. The prosecution also sought to preclude petitioner's own testimony about having read the journal both before and during the marriage, and to its effect on her. In addition, the prosecution sought to exclude the portion of petitioner's videotaped police interview in which, in the course of trying to explain her actions on the morning of the shooting, she mentioned the journal and its effect on her; the prosecution intended to introduce incriminating portions of the tape, but sought to exclude any reference to the journal. Finally, the prosecution sought to limit the testimony of Dr. Nancy KaserBoyd, an expert on Battered Woman's Syndrome, to prohibit her from mentioning the journal. The motion in limine was granted. The journal and all references to it were ruled inadmissible.

Petitioner was found guilty of first degree murder with use of a firearm. She was sentenced to twenty-nine years to life in prison. The California Court of Appeal affirmed, holding unanimously that the journal evidence was admissible, but also holding (with one justice dissenting) that the error was not prejudicial in light of other evidence that went to the jury to prove petitioner's credibility and the victim's propensity for violence.

The district court denied habeas relief, holding that the excluded evidence was but "one piece of physical evidence" that was not critical to the defense. Assuming arguendo that constitutional error had occurred, the court held that such error was harmless in light of other evidence that was adduced in support of...