Sally Marie McNeil v. Raymond L. Middleton Bill Lockyer

PAEZ, J.,

dissenting:

I respectfully dissent.

In my view, McNeil’s due process right to present a complete defense was violated when the trial court incorrectly instructed the jury that the evidence of Battered Women’s Syndrome (BWS)1 could not be considered for the reasonableness of her belief in the need for self-defense.2 McNeil’s sole defense to the murder charge was that she shot Ray in self-defense. To establish a claim of perfect self-defense, she had to show that her fear of imminent harm was both actual and reasonable. See People v. Humphrey, 13 Cal.4th 1073, 56 Cal.Rptr.2d 142, 921 P.2d 1, 6 (1996). To do so, she relied heavily on the BWS evidence. The trial court’s erroneous limiting instruction precluded McNeil from establishing the reasonableness of her belief — a critical element of her defense. Thus, the trial court deprived McNeil of her due process right to “be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1974); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); see also DePetris v. Kuykendall, 239 F.3d 1057, 1062-63 (9th Cir.2001) (recognizing that the exclusion of evidence that “went to the heart of the defense” was unconstitutional under Chambers and Washington).

In concluding that the instructional error was harmless, the California Court of Appeal reasoned that because the jury found McNeil guilty of second-degree murder, it must have found that she lacked an actual belief in the need to act in self-defense. In so concluding, the court relied on the fact that “[t]he jury was specifically instructed that if McNeil had an actual belief in the need to act in self-defense she could not be guilty of murder.” People v. McNeil, No. D026047, slip op. at 11 (Cal.Ct.App. Jun. 18, 1998). Yet the jury was not so instructed, either explicitly or implicitly. Instead, the jury was clearly and repeatedly told that the “killing of another person in self defense is justifiable and not unlawful when the person who does the killing” had an actual and reasonable belief in the need for self-defense. Thus, the fact that the jury convicted McNeil of second-degree murder does not conclusively establish that it found that she lacked an actual belief in the need for self-defense.

*924The majority agrees with the California Court of Appeal’s conclusion that the jury must have found that McNeil lacked an actual belief in the need for self-defense. It relies on the jury’s verdict of “not guilty” on the voluntary manslaughter charge to show that the common denominator among these inconsistent verdicts is that McNeil lacked an actual belief in the need for self-defense. The majority’s reasoning implies that by returning a verdict of “not guilty” of voluntary manslaughter, the jury actually meant that the imperfect self-defense did not apply — that is, McNeil did not qualify for this lesser charge because she lacked an actual belief in the need for self-defense.

I decline to place any confidence in the jury’s voluntary manslaughter verdict. It was clearly inconsistent for the jury to find McNeil not guilty of voluntary manslaughter, yet guilty of second-degree murder. The jury was specifically instructed not to return any other verdict forms if it found McNeil not guilty of first degree murder, but guilty of second degree murder. Although it is possible that the jury made a simple mistake and intended to determine that imperfect self-defense did not apply, we cannot know the jurors’ deliberations. See Stow v. Murashige, 389 F.3d 880, 890 (9th Cir.2004). We simply cannot divine the jurors’ thought processes to construe an internal coherence among the inconsistent verdicts.

Because the centerpiece of McNeil’s defense was the BWS evidence, the erroneous instruction effectively precluded the jury from finding that she acted in self-defense when she shot and killed Ray. The record leaves me in “grave doubt” as to whether the denial of McNeil’s due process right to present a meaningful defense had a “substantial and injurious” effect on the jury’s verdict. See O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). I would therefore reverse the district court’s denial of habeas relief.

. We detailed the substance of McNeil’s BWS evidence in our original opinion, see McNeil v. Middleton, 344 F.3d 988, 992-93, 1001 (9th Cir.2003), and I need not repeat it here.

. In our original opinion, we limited our analysis to the imperfect self-defense instruction and did not reach this instructional error. See McNeil, 344 F.3d at 995.