Petrocelli v. Baker
| Decision Date | 05 July 2017 |
| Docket Number | No. 14-99006,14-99006 |
| Citation | 869 F.3d 710 |
| Parties | Tracy PETROCELLI, Petitioner–Appellant, v. Renee BAKER, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. Richard Ellis (argued), Mill Valley, California, for Petitioner–Appellant.
Robert E. Wieland (argued), Senior Deputy Attorney General; Jeffrey M. Conner, Assistant Solicitor General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada; for Respondent–Appellee.
Before: William A. Fletcher, Morgan Christen, and Michelle T. Friedland, Circuit Judges.
The majority opinion and concurrence filed on July 5, 2017, and appearing at 862 F.3d 809, are hereby amended. An amended majority opinion and concurrence are filed concurrently with this order.
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 panel rehearing and rehearing en banc is DENIED. No new Petition for Panel Rehearing or Petition for Rehearing en Banc will be entertained.
OPINION
In 1982, Tracy Petrocelli was convicted and sentenced to death in Nevada state court for the robbery and first-degree murder of James Wilson, a Nevada used car salesman. Petrocelli filed a federal petition for writ of habeas corpus before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Petrocelli appeals the district court's denial of the writ.
We affirm the district court's denial of the writ with respect to Petrocelli's conviction but reverse with respect to his death sentence. We hold that admission of Dr. Lynn Gerow's psychiatric testimony during the penalty phase violated Petrocelli's Fifth and Sixth Amendment rights under Estelle v. Smith , 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and that the violation had a substantial and injurious effect on the jury's decision to impose the death sentence. See Brecht v. Abrahamson , 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
On March 29, 1982, Petrocelli went on a test drive of a Volkswagen pickup truck with James Wilson, a used car salesman, in Reno, Nevada. At some point during that test drive, Petrocelli shot and killed Wilson. Wilson's body was found buried in a crevice under some rocks and brush near Pyramid Lake. The lake is about thirty-five miles north of Reno. Wilson had been shot in the neck, chest, and back of the head.
Nearly a year before killing Wilson, in May 1981, Petrocelli had pleaded guilty in Washington State to kidnaping his girlfriend, Melanie Barker. He had received a suspended sentence conditioned on his completion of a drug treatment program. Petrocelli absconded from the treatment program twice and never completed it. Petrocelli shot and killed Barker in Washington State in October 1981, five months before he killed Wilson in Nevada.
Petrocelli was arrested for the Wilson murder in Las Vegas on April 18, 1982. The following day, he was interrogated in Las Vegas. Petrocelli was advised of his Miranda rights, and he signed a statement indicating that he understood them. Petrocelli stated during the interrogation, "I'd sort of like to know what my ... lawyer wants me to do." (Ellipsis in original.) He nonetheless continued to answer questions. Later in the interrogation, he admitted to having previously stolen a car from a "Dub Peterson" dealership in Oklahoma City after taking it for a test drive with a salesman.
Petrocelli was subsequently transported to Reno. On the afternoon of April 20, he was interrogated by Sergeants Glen Barnes and Abel Dickson, as well as two prosecutors from the District Attorney's Office of Washoe County, Bruce Laxalt and Don Nomura. At the beginning of the interrogation, Petrocelli made a variety of requests that he characterized as "preconditions" to talking. They included locating some of his property, facilitating a visit by his wife, bringing him photographs of Barker, arranging a television interview, and receiving psychiatric counseling. Dickson testified at a hearing outside the presence of the jury that no promises were made, but that Petrocelli was told that if his requests "could be done they would be done." After being informed of his Miranda rights, Petrocelli confessed to shooting both Wilson and Barker.
On April 20, the Public Defender of Washoe County was appointed as counsel for Petrocelli by order of the Reno Justice Court. On April 21, Petrocelli personally appeared in the Justice Court, where he was arraigned and bail was set.
The visitors' log for the Washoe County Jail shows that Larry Wishart, an attorney from the Washoe County Public Defender's Office, and Tim Ford, an investigator from that office, visited Petrocelli on April 21, the day of his arraignment, at about 1:50 pm. A date and time stamp shows that their visit lasted about half an hour ("82 APR 21 2 :2"). The log shows a visit from Dr. Lynn Gerow later that day. Gerow was a psychiatrist who had been asked by Chief Deputy District Attorney Laxalt to evaluate Petrocelli's competency to stand trial.
The relevant page of the visitors' log is dedicated exclusively to visitors to Petrocelli. Wishart and Ford's entry, with their signatures, is on line three of the page. They wrote "WCPD/ATT" in the box asking for their "relationship." Dr. Gerow's entry, with his signature, is on line four, immediately below. He wrote "D.A." in the box asking for his "relationship." The entry by Wishart and Ford, stating their relationship to Petrocelli, would have been apparent to Gerow when he signed the log. A date and time stamp show that Gerow signed in at about 3:50 ("82 APR 21 P 3 :5"). There is no stamp showing when his visit ended. Gerow testified at trial that he spent two hours interviewing Petrocelli.
Petrocelli testified that he believed that Dr. Gerow had come to see him in response to his request for counseling. During his April 20 interview in Reno, Petrocelli had specified as one of his "preconditions" that he receive psychiatric counseling. Petrocelli testified consistently at a hearing outside the presence of the jury, saying that he had stated as one of his preconditions: "I wanted to have psychiatric counseling while I was in the jail." He testified that he "saw a doctor Gerow once." When asked how long he spoke to Gerow, Petrocelli responded, "[I]t didn't seem like it was very long." When asked to estimate the time, Petrocelli responded,
On April 27, Dr. Gerow sent a letter labeled "confidential" to Prosecutor Laxalt in the District Attorney's office. He wrote:
Gerow testified in state post-conviction proceedings that when he wrote "as needed," he meant "as needed by Mr. Laxalt."
Wishart testified in state post-conviction proceedings that when he met with Petrocelli on April 21, he did not know that Dr. Gerow was going to see his client later that afternoon. Wishart testified that he would not have employed Gerow because he "had a prosecution bias."
Petrocelli was interrogated again on April 27. After being advised of his Miranda rights, Petrocelli made another statement.
On April 28, 1982, Petrocelli was indicted on one count of robbery with a deadly weapon and one count of first-degree murder. The guilt phase of the trial began on July 27, 1982, and ran through August 5, 1982. At trial, the State contended in support of the robbery count that Petrocelli went on the test drive with Wilson in order to steal the truck, that he used his gun to try to force Wilson out of the truck, and that he shot Wilson when Wilson would not cooperate. To bolster its theory, the State called Melvin Powell, an Oklahoma car salesman, to testify that Petrocelli had stolen a car in a similar manner (though without injuring Powell) during a test drive in February 1982.
The defense contended, based on Petrocelli's testimony at trial, that Petrocelli had been a bona fide prospective purchaser with no intent to steal, and that Wilson was accidentally shot in the midst of a heated argument and struggle that resulted from haggling over the price of the truck. To impeach Petrocelli's testimony, the State introduced portions of the statements that Petrocelli had made on April 20 and 27. To undermine Petrocelli's contention that the Wilson shooting was unintentional, the State impeached Petrocelli with his statement on April 20 that his earlier shooting of his girlfriend, Melanie Barker, was an "accident." The prosecutor also impeached Petrocelli by confronting him with other inconsistencies between his trial testimony and his statements to the detectives.
The jury found Petrocelli guilty of both charges.
In order to render Petrocelli death-eligible, the State had to...
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