Kirkpatrick v. Chappell
| Decision Date | 10 October 2017 |
| Docket Number | No. 14-99001,14-99001 |
| Citation | 950 F.3d 1118 |
| Parties | William KIRKPATRICK, Jr., Petitioner-Appellant, v. Kevin CHAPPELL, Warden, California State Prison at San Quentin, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
The opinion, filed on June 13, 2019, reported at 926 F.3d 1157, is amended as follows:
On page 21 of the slip opinion, delete
On page 22 of the slip opinion, replace required to impose the death penalty.> with "the ‘bad’ evidence is so substantial in comparison with the ‘good’ that it warrants death instead of life without parole ." People v. Brown , 40 Cal. 3d 512, 542 n.13, 230 Cal.Rptr. 834, 726 P.2d 516 (1985), rev’d on other grounds , 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987).>
With these amendments, Appellant’s petition for panel rehearing is DENIED . Judge Wardlaw and Judge Christen vote to deny Appellant’s petition for rehearing en banc, and Judge Bea so recommends. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED . No further petitions for panel rehearing or rehearing en banc will be entertained.
I. BACKGROUND
In September 1983, William Kirkpatrick was arrested and subsequently tried and convicted for robbing a Taco Bell restaurant in Burbank, California and for murdering two Taco Bell employees in the course of his robbery. He was 23 years old. The two victims, one of whom was 16 years old, were later found stuffed in a closet; both had been shot in the head, "execution style." Because the California Supreme Court’s opinion in People v. Kirkpatrick , 7 Cal.4th 988, 30 Cal.Rptr.2d 818, 874 P.2d 248 (1994) (in bank), disapproved of on other grounds by People v. Doolin , 45 Cal.4th 390, 87 Cal.Rptr.3d 209, 198 P.3d 11, 36 n.22 (2009), explains the details of Kirkpatrick’s brutal double murder, we do not restate them here.
More relevant to Kirkpatrick’s appeal is the procedural history of his case. After the guilt phase of Kirkpatrick’s trial, the jury deliberated for five days. The jury found Kirkpatrick guilty on two counts of first-degree murder, burglary, and robbery. The jury also found that because Kirkpatrick was convicted of two murders and the murders were committed during the commission of a robbery and burglary, special circumstances existed under California Penal Code § 190.2 that rendered Kirkpatrick eligible for the death penalty.
During the penalty phase of Kirkpatrick’s trial, the jury was tasked with deciding whether Kirkpatrick should receive the death penalty or a sentence of life imprisonment without parole. Cal. Penal Code § 190.3. The prosecution and defense had the opportunity to present aggravating and mitigating evidence to the jury to support their arguments regarding which sentence Kirkpatrick should receive. The prosecution presented aggravating evidence of Kirkpatrick’s character and his other troubling actions. First, Stephen Thomas told the jury that when he was 16, Kirkpatrick became angry with him while they were drinking at a park after he refused to assist Kirkpatrick in a violent robbery. Thomas stated that Kirkpatrick dragged him to the park restroom, choked him, and tried to stick his head in a toilet.
Another witness, Jacob De Binion, testified that when he was 17, he met Kirkpatrick in a Der Wienerschnitzel restaurant parking lot and accepted Kirkpatrick’s invitation to drink beer in the back of a van. After having a few drinks together, De Binion testified that Kirkpatrick physically forced him to perform oral sex and kiss him and threatened to kill him if he refused.
Finally, Shirley Johnson testified that Kirkpatrick left his calculator, bicycle, and projector at her house in late May 1983. Kirkpatrick attempted to retrieve his belongings from her house, but his calculator was nowhere to be found. Kirkpatrick subsequently made numerous phone calls to Johnson and threatened to "do damage" to her dogs, daughter, house, and herself if his calculator was not returned.
In late June 1983, Johnson came home and found that her two dogs had been poisoned and temporarily paralyzed. Later, Kirkpatrick called Johnson to tell her that he had "taken care" of the dogs. Kirkpatrick’s defense counsel objected to Johnson’s testimony about Kirkpatrick’s dog poisoning and property threats, and argued that making threats to property and poisoning dogs were not facts that may be considered as aggravating evidence under California Penal Code § 190.3, which permits the jury to consider only violent acts and threats of violence to people. The court overruled defense counsel’s objection without explanation.
The defense’s mitigation presentation consisted solely of Kirkpatrick’s testimony, in which he reasserted his innocence and said he aspired to be a writer. Kirkpatrick’s lawyers spoke to his mother in preparation for the mitigation presentation and told the court that she would be "very, very helpful to the defense," but Kirkpatrick ordered his lawyers not to contact or present any family members as witnesses.
After both sides rested, the court instructed the jury. Relevant here, the court told the jury:
In closing argument, the prosecutor noted the absence of mitigating factors from Kirkpatrick’s presentation. He urged the jury to impose the death penalty because the aggravating evidence outweighed the mitigating evidence. He also relied heavily on the dog poisoning incident to highlight Kirkpatrick’s character:
The prosecutor continued:
At closing argument, Kirkpatrick told the jury that he had not received a fair trial.1 He argued that his attorneys failed to call certain witnesses and ask specific questions. He said he was "frightened" and "mad" that prosecutors were sending an innocent person to jail. He also told jurors that he did not blame them for finding him guilty and that he would have done the same thing if he had been in their position.
Prosecutors rebutted Kirkpatrick’s closing argument by suggesting that Kirkpatrick was "an anarchist" and that his only contribution to society was "to inflict havoc, pain and suffering on innocent people." The prosecution reminded the jury that Kirkpatrick made deliberate choices to kill two Taco Bell employees; to force Jacob De Binion to perform oral sex and kiss him; to assault Stephen Thomas after he refused to help him with a violent burglary; and to threaten Shirley Johnson, her daughter, and her dogs to retrieve his calculator. The prosecution concluded by stating that because the aggravating factors "so far outweigh anything in mitigation," the jury "shall impose the penalty of death."
The jury began its penalty deliberations on June 19, 1984. Several hours into deliberating on June 20, 1984, the jury sent a note to the court asking: "[W]hat [are] the legal definitions for aggravating and mitigating circumstances as they apply to the instructions in making the determination of this sentence?" The court responded that the jury members "have been given all the legal definitions [they] need [and that] [a]ll other words have their common definitions." On June 21, 1984, the jury returned a death verdict for both murders.
At Kirkpatrick’s sentencing hearing on August 14, 1984, Kirkpatrick moved to modify the verdict imposing the death penalty. The court reviewed the aggravating circumstances and stated that the only mitigating factors were Kirkpatrick’s lack of prior felony convictions and his young age of 23. Because the court found that the aggravating circumstances outweighed those in mitigation, it denied Kirkpatrick’s motion to modify the verdict and imposed a sentence of death.
In 1988, Kirkpatrick filed an automatic...
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