Menendez v. Terhune , 422 F.3d 1012 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYLE MENENDEZ, 
Petitioner-Appellant,
v. No. 03-55863
C. A. TERHUNE, in his capacity as  D.C. No.
head of the California Department CV-00-02359-MLR
of Corrections,
Respondent-Appellee.

ERIK GALEN MENENDEZ, 
Petitioner-Appellant,
No. 03-56023
v.
GLEN A. MUELLER; ATTORNEY  D.C. No.
CV-99-08552-R
GENERAL OF THE STATE OF
OPINION
CALIFORNIA,
Respondents-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
February 17, 2005—Pasadena, California
Filed September 7, 2005
Before: Alex Kozinski, Stephen S. Trott, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Trott
12465
MENENDEZ v. TERHUNE 12469
COUNSEL
Cliff Gardner, San Francisco, California, for the petitioner-
appellant.
Lawrence A. Gibbs, Berkeley, California, for the petitioner-
appellant.
Kenneth C. Byrne, Supervising Deputy Attorney General, Los
Angeles, California, for the respondents-appellees.
OPINION
TROTT, Circuit Judge:
INTRODUCTION
In this consolidated appeal, Lyle and Erik Menendez1
1
We use the first names of the Petitioners to avoid confusion.
12470 MENENDEZ v. TERHUNE
appeal the district court’s denial of their petitions for habeas
corpus. Pursuant to 28 U.S.C. § 2253(c), we granted a certifi-
cate of appealability on five issues: (1) whether the admission
of a tape-recorded session between Petitioners and their thera-
pist violated Petitioners’ constitutional due process rights as
elaborated in Ake v. Oklahoma, 470 U.S. 68 (1985); (2)
whether the trial court’s decision not to instruct the jury on
imperfect self-defense violated Petitioners’ rights to due pro-
cess; (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 vio-
lated 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.
BACKGROUND
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 par-
ents’ 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
2
Erik made this fifth argument belatedly, and he appeals the district
court’s denial of his request for leave to amend to add this claim. Because
we reject the argument on the merits, we need not decide whether the dis-
trict court abused its discretion by denying Erik’s request for leave to
amend.
MENENDEZ v. TERHUNE 12471
were the result of years of physical, sexual, and psychological
abuse, and thus not murder, but only manslaughter.
A. The Pre-Killing Planning, the Killings, and the Post-
Killing Cover-Up
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 bed-
room and screamed “I warned you never to tell Lyle. I told
you never to tell Lyle. Its [sic] all your fault. Now, Lyle’s
going to tell everyone and I’m not going to let that happen.
I can’t believe you did this.” As a result of this confrontation
and years of threats by Jose, Erik testified he thought his par-
ents 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,
12472 MENENDEZ v. TERHUNE
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 pro-
vide identification when asked. So, they left that store, and
went to the third and final store. There, they bought two shot-
guns 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 shot-
guns. Additionally, having been told that the birdshot ammu-
nition 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 per-
son.
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
MENENDEZ v. TERHUNE 12473
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, “You’re not going to touch Erik. You’re
not going to touch my little brother. You’re never going to
touch him again.” 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, “I’m not going to my room tonight. I can’t let him come
to my room. I can’t let this happen.” 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, “It’s
happening now. They were waiting for me to get home and
it’s happening now.”
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, “As soon as I burst
through the doors, as soon as I saw them, I just immediately
started firing. I didn’t stop and look around. I just started fir-
12474 MENENDEZ v. TERHUNE
ing.” 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 col-
lected the expended shotgun shells, concerned that their fin-
gerprints 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 Ber-
man 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. In an apparent effort to fabricate a
second alibi, Lyle suggested to Berman that they meet at a
restaurant in Beverly Hills instead. A few minutes later, how-
ever, Lyle called back and asked Berman to meet at the
Menendez home instead. Rather than meet at the home, Ber-
man agreed to wait so that Lyle and Erik could go home to
get Erik’s fake I.D. Of course, after returning home, Erik and
Lyle “discovered” their parents’ dead bodies and did not show
up at the restaurant to meet Berman.
At that point, Lyle called 911 and emotionally told the
operator, “someone killed my parents.” He said that he had
MENENDEZ v. TERHUNE 12475
just come home and discovered their bodies. Erik could be
heard screaming and crying in the background. Continuing
the charade when the police arrived, Lyle and Erik ran from
the home toward the officers, screaming.
During the ensuing investigation, Lyle and Erik both
falsely told officers that they were elsewhere at the time of the
killings. Lyle went so far as to tell the officers he thought the
killings might be “business-related,” meaning a Mafia hit.
We note here that the gory scene of the slaughter of Jose
and Kitty Menendez is consistent with the notion that the kill-
ings were carried out with the false Mafia story already in
mind. It appears from the record that the shotgun overkill
administered by Erik and Lyle was designed to simulate a
gangland hit in order to enable the brothers to deceive the
police and to point them in the wrong direction.
After the initial police interview, Erik and Lyle asked if
they could return to the den to recover their tennis rackets.
Picking up on Lyle’s suggestion that the slaughter might be
Mafia-related, the police began to investigate that lead. To
make the lie more believable, Lyle immediately hired body-
guards to “protect” him 24 hours a day, telling his bodyguard
that either the Columbian Cartel or the Mafia was responsible
for his parents’ murders. He told his girlfriend the same story.
But Lyle terminated the “round the clock” arrangement after
a week, falsely asserting that a “deal” had been reached with
the Mafia and he was no longer in danger. Nonetheless, Lyle
hired a bodyguard for his “protection” during his Fall, 1989
semester at Princeton.
Erik, too, continued the “Mafia-killing” pretense: In Sep-
tember or October of 1989, he told Berman that his parents’
murders were “business-related.” Erik went so far as to name
names, telling Berman that the murders involved a man
12476 MENENDEZ v. TERHUNE
named Noel Bloom, a man who previously had business prob-
lems with Jose.
While the police were attempting to solve the crime, Erik
and Lyle were concerning themselves with the considerable
wealth their parents had left behind. Jose’s life insurance left
Lyle and Erik with more than $300,000 each, but other valu-
able assets remained undistributed. At the time of his death,
Jose was earning over a million dollars a year, and his com-
bined property and stock assets amounted to more than seven
million dollars. The brothers knew that Jose had a will, but
questions remained at the time as to the location of the will
and whether Jose had written more than one.
Jose’s 1981 will, which left everything to Erik and Lyle,
was not immediately recovered. The brothers, however, had
reason to fear that Jose might have written a new will, one
that would leave them nothing. Erik testified that his mother
told him that Jose had disinherited Erik. The day after the
murders, Erik and Lyle spoke with Randolph Wright, an attor-
ney and family friend, about probating Jose’s will. (During
this meeting, Erik again mentioned he thought the killings
were Mafia-related.)
Lyle told Wright that he thought Jose might have changed
his will and that the new will might be on the family com-
puter. The other possible location of a new will was a family
safe. Lyle retrieved the safe, and it was brought to Wright’s
home, where it was kept in a spare bedroom. Erik spent two
nights in that bedroom with the safe, and when it was opened,
Lyle allowed no one but Erik to be present. After opening the
safe in private, Lyle told family and friends that he and Erik
had found nothing in the safe.
Some time later, three files on the computer, entitled
“Will,” “Erik,” and “Lyle,” were discovered. These files,
however, were mysteriously unrecoverable. A computer
expert named Howard Witkin testified at trial that Lyle had
MENENDEZ v. TERHUNE 12477
called him in on an “emergency” computer problem. Witkin
found the location of the files, but no information. Lyle asked
Witkin to be sure to completely erase the disk, claiming that
he was selling the computer and wanted to make sure that no
financial information could be discovered. Soon thereafter,
the family found the 1981 will — now the only will — which
left everything to Lyle and Erik.
With the knowledge that they were to inherit millions, Lyle
and Erik began shopping days after the murders. Lyle started
by purchasing three Rolex watches and two money clips, as
well as a new Porsche 911 Carrera Cabriolet. Erik bought a
Jeep Wrangler, and both brothers bought houses, clothes, and
businesses.
Their final pre-trial attempt to escape punishment came
after they were arrested. Two witnesses testified that they had
been asked to fabricate evidence. Lyle asked one witness,
Brian Amir Eslaminia, to lie and testify that the day before the
murders, Lyle and Erik said they needed a handgun for pro-
tection. The other witness, Lyle’s girlfriend, Jamie Pisarcik,
testified that Lyle asked her to allege that Jose had raped her.
B. The Therapy Sessions
In 1988, prior to the murders, Erik had been charged with
two residential burglaries in the Calabasas area of Los Ange-
les County. In connection with these charges, both brothers
acquired the services of an attorney, Gerald Chaleff. Formal
charges arising from these burglaries were filed against Erik
in Juvenile Court. Lyle was not charged.
For the purpose of pursuing diversion from the court sys-
tem pursuant to section 654 of the California Welfare and
Institutions Code, Chaleff suggested to Erik and Jose that they
find a psychologist. Chaleff testified in the instant case that he
thought, “we were going to need — that counseling or psychi-
atric therapy or psychological therapy was part of our defense
12478 MENENDEZ v. TERHUNE
for that case, and that we needed that to show the court that
he was attempting to deal with whatever led to the burgla-
ries.” The family located Dr. Jerome Oziel for this purpose.
In January of 1989, Dr. Oziel prepared a report regarding his
therapeutic relationship with and evaluation of Erik, which
Chaleff submitted to the Juvenile Court in order successfully
to secure Erik’s diversion for one year and the eventual dis-
missal of all charges.
Chaleff reentered the lives of the Menendez brothers within
days of the killings. On August 21, 1989, Chaleff advised the
police that he would be “acting on their behalf as legal coun-
sel.” However, unbeknownst to Chaleff and on their own ini-
tiative, the Menendez brothers resumed meeting on a
professional basis with Dr. Oziel. On their own, they met with
Dr. Oziel during September, October, and November of 1989.
Chaleff testified that he was unaware of Dr. Oziel’s continu-
ing involvement in the brothers’ lives until December of
1989, about two months after the brothers had resumed their
therapy sessions.
During their 1989 sessions with Dr. Oziel, neither brother
immediately confessed to their roles in their parents’ deaths.
Eventually, however, the truth got the best of Erik. After sev-
eral sessions, he called Dr. Oziel on October 30, 1989, and
said that he urgently needed to speak with him. Dr. Oziel
already suspected that Lyle and Erik had committed the
crimes, so when Erik called, Dr. Oziel became concerned for
his safety. He had his business associate and mistress, Judalon
Smyth, eavesdrop on the conversation. As it turned out, Dr.
Oziel was right about both the murders and his own safety.
Erik met with Dr. Oziel the next day and confessed to the
crimes in detail. Lyle did not yet know that Erik had con-
fessed, and Dr. Oziel worried what Lyle would do when he
learned of Erik’s confession. To gauge Lyle’s reaction, Dr.
Oziel called Lyle and asked him to come to the office. When
Lyle arrived, he was told of the confession, and he began yell-
MENENDEZ v. TERHUNE 12479
ing at Erik in Dr. Oziel’s presence: “I can’t believe you did
this! I can’t believe you told him! I don’t even have a brother
now! I could get rid of you for this! Now I hope you know
what we are going to do. I hope you realize what we are going
to have to do. We’ve got to kill him and anyone associated to
him.”
Dr. Oziel was now not only concerned for his family’s and
his own safety, but also was worried about how to proceed.
Unsure as to his ethical obligations as a therapist, he con-
sulted several people for advice without revealing what had
happened. Ultimately, he decided that the best way to protect
himself was to continue to meet with the brothers and con-
vince them that he was an ally. He began taping the sessions
for his safety, threatening that the tapes would be released to
the police if anything happened to him.
In early December of 1989, Erik and Lyle gave Dr. Oziel
permission to consult Chaleff. At that juncture, Chaleff still
had no knowledge whatsoever that the brothers had been
meeting with Dr. Oziel on a professional basis. Chaleff added
that he had not discussed with Dr. Oziel anything about par-
ticipating in a “criminal defense aspect of the case,” and that
he had not discussed Dr. Oziel at all with either Erik or Lyle.
Chaleff and Dr. Oziel met on December 8, 1989, and Dr.
Oziel told Chaleff that he planned to continue the therapy ses-
sions. At some point after this meeting, Chaleff decided that
continuing therapy could be helpful because “if there was a
trial . . . this might be good for the penalty phase, if there ever
was one.” Chaleff explained the situation as follows:
Q: [By Defense Counsel] And was some arrange-
ment made for you to meet at your house the next
day? That would have been Saturday, December 9th.
A: [Chaleff] Yes.
12480 MENENDEZ v. TERHUNE
Q: And can you tell me what the results of that meet-
ing were.
A: Well, Dr. Oziel came over [to] my house and we
had a conversation, and then the result was that we
were going to have a meeting with Lyle and Erik and
Dr. Oziel and myself as soon as we could.
Q: What was the information that Dr. Oziel gave you
at that point, that is, on the 9th?
A: In total? What — he told me a lot of things.
Q: Well, did he tell you that the boys had made a
statement to him in reference to the homicides?
A: Yes.
Q: And did he — was there some discussion between
the two of you as to whether therapy should continue
at that point, given what he already had learned
from them?
A: I think he told me that they were going to con-
tinue therapy, and I don’t know if I agreed or not.
But I didn’t say no. I mean, I don’t have a real strong
recollection of that. But I know we discussed it.
Q: And at some point in time, either December 8th
or some other day, do you have a recollection of
deciding as their lawyer that therapy with Dr. Oziel
should continue for the purpose of, perhaps, use of
the material he was developing in the event that a
case ever got filed against him?
A: At some point I decided that continuing therapy
with Dr. Oziel would be beneficial, could be benefi-
cial, if he ever got arrested.
MENENDEZ v. TERHUNE 12481
Q: And could you just elaborate on how you thought
his therapy sessions were going to be of use to you.
A: Yes. First thought that came to my mind — and
I guess that’s usually because I’m a pessimist about
things — if there was a trial, that he could be con-
victed, and this might be good for the penalty phase,
if there ever was one.
Q: Okay. And do you recall conveying your decision
to the Menendez brothers at some point?
A: Yes.
Q: And do you remember when that happened?
A: That happened on the meeting we all had together
on the 11th.
Q: And after that meeting on the 11th, were you
made aware of the fact, after that date, that Dr. Oziel
had tape-recorded that session?
A: Yes.
Q: And did you ask for a copy of that tape at that
point, that is, some time in December?
A: I wasn’t made aware of it in December.
Q: When were you made aware?
A: After they were arrested.
Q: That there was actually a tape-recording of the
session, of that particular session?
A: Yes.
12482 MENENDEZ v. TERHUNE
(emphasis added).
During the December 11, 1989 session, Erik and Lyle
talked about their relationships with their parents and about
the pressures they felt growing up — the fact that they loved
their parents but found their father too demanding, and that
their mother, who had contemplated suicide, was unhappy.
They spoke candidly about the murders, discussing in some
detail their thoughts and plans leading up to them. Particularly
incriminating were statements about the reasons for and plans
to kill Jose and Kitty:
[Erik]: Well, we, we were, we were doing almost, in
my mom’s case, something that, that first of all,
there was, there was no way, never could she live
without my father.
....
[Lyle]: That was something that we had to really, it
was a big thing holding us back. Ah, from killing my
father was that we thought that we would just kill
dad, and eliminate the problem.
....
[Lyle]: And ah, so ah, for my, for my mother’s sake,
I, I thought that ah, we did it, it was, we had to come
like I was saying before, we had to make a decision.
It was one of the harder ones, and it was a separate
issue. (unintel.). He’s the reason. My father should
be killed. There’s no question. What he’s doing is,
he’s impossible to live with for myself and for . . . .
....
[Lyle]: But I still don’t think it had anything to do
with, killing him had nothing to do with us. It had to
MENENDEZ v. TERHUNE 12483
do with me realizing a number of things that all cul-
minated, which was, and could have culminated at
any point. And it was just a question of Erik and I
getting together, and somebody bringing it up, and
us realizing the value in it.
....
[Lyle]: There was no way I was gonna make a deci-
sion to kill my mother without Erik’s consent. I was
going, I didn’t even wanna influence him in that
issue. I just let him sleep on it for a couple days.
Cause ah, I did . . . I, I, I’m in a very ah, good posi-
tion to influence Erik on a lot of things. Because he
knows that I care, and a whole number of issues.
That I can talk eloquently or whatever. And ah, but
when it came to that issue, I wanted nothing to do
with it. It had to be his own personal issue. If he felt
the same way I did about killing mom.
This tape came to the attention of the police after Dr.
Oziel’s relationship with Judalon Smyth ended. At that point,
Smyth approached Beverly Hills police and told them what
she knew about the murders. On March 8, 1989, a warrant
was served at Dr. Oziel’s home, and the taped sessions were
recovered. This tape provided the prosecution with additional
evidence that the murders had been committed in a deliberate,
premeditated fashion.
C. The Trials
Lyle and Erik were charged in Los Angeles County Supe-
rior Court with two counts of murder while lying in wait and
one count of conspiracy to commit murder. The State sought
the death penalty against both brothers and was forced to try
the brothers twice, when each of the first juries — one for
each defendant — was unable to reach a verdict.
12484 MENENDEZ v. TERHUNE
1. The First Trial
Our concern in this case is only with the rulings in the sec-
ond trial. However, Petitioners make much of the differences
in the two trials in an attempt to show that they received an
unfair second trial. Accordingly, we outline here the major
differences between the two trials.
During the first trial, Lyle and Erik were tried jointly with
two separate juries. The defense theory was not that Jose and
Kitty had been killed by the Mafia over a business deal gone
sour, but as an act of “imperfect self-defense,” a theory avail-
able to California defendants who have a genuine, albeit
unreasonable, fear of imminent death or great bodily injury.
In re Christian S., 7 Cal. 4th 768, 771 (1994). A defendant
who kills with this genuine but unreasonable fear can be
found guilty of no more than manslaughter. Id.In an effort to support this theory at the first trial, both Lyle
and Erik testified about their fear of their deceased parents
due to a lifelong pattern of abuse. Lyle, who did not take the
stand at the second trial, testified that his father had sexually
molested him when Lyle was between the ages of six and
eight. Additionally, he testified that both his mother and
father had been physically and psychologically abusive to his
brother and him throughout their lives.
Among the many other differences between the two trials
was the prosecution’s failure during the first trial to object to
the introduction of much defense evidence that would be
excluded in the second trial. Also, the judge gave the juries
in the first trial an instruction on imperfect self-defense
(CALJIC No. 5.17).3 This first trial resulted in two hung
3
The 1995 revision of CALJIC No. 5.17, a modified version of which
was requested at trial, provided as follows:
A person, who kills another person in the actual but unreasonable
belief in the necessity to defend against imminent peril to life or
MENENDEZ v. TERHUNE 12485
juries. Neither jury was able to agree on a degree of homicide,
landing all over the board with votes for first degree murder,
second degree murder, voluntary manslaughter, and involun-
tary manslaughter.
2. The Second Trial
As with the first trial, the defendants admitted killing their
parents, and again disputed only the kind of homicide of
which they were guilty. The new prosecution team and the
defense were both armed with lessons learned in the first trial,
and as a result, the second trial differed from the first. This
time, (1) the cases were tried before a single jury, (2) the pros-
ecution raised new successful objections to the introduction of
some defense evidence, and (3) though the theory of defense
remained the same, defense trial tactics changed as well.
For example, Lyle opted not to testify in his own defense
during the second trial, though Erik again took the stand and
testified about his and Lyle’s alleged fear of their parents.
Because of this decision not to testify, Lyle presented no evi-
dence of his alleged fear of his parents at the time of the mur-
ders. Consequently, the trial court ruled that Lyle failed to lay
a foundation for the introduction of testimony, admitted dur-
great bodily injury, kills unlawfully, but does not harbor malice
aforethought and is not guilty of murder. This would be so even
though a reasonable person in the same situation seeing and
knowing the same facts would not have had the same belief. Such
an actual but unreasonable belief is not a defense to the crime of
[voluntary] [or] [involuntary] manslaughter.
As used in this instruction, an “imminent” [peril] [or] [danger]
means one that is apparent, present, immediate and must be
instantly dealt with, or must so appear at the time to the slayer.
[However, this principle is not available, and malice aforethought
is not negated, if the defendant by [his] [her] [unlawful] [or]
[wrongful] conduct created the circumstances which legally justi-
fied [his] [her] adversary’s [use of force], [attack] [or] [pursuit].]
(brackets in original).
12486 MENENDEZ v. TERHUNE
ing the first trial, which was offered to support his theory that
he killed in an honest, but unreasonable belief in the need for
self-defense.
In addition, the prosecution successfully argued that some
so-called “source evidence,” evidence that would have
explained why the brothers might have had a fear of their par-
ents, was cumulative or lacking in foundation. These wit-
nesses included family and friends who would have testified
to specific instances of abuse by Kitty and Jose. The evidence
also included experts who would have explained what effect
the abuse might have had on Lyle and Erik. The trial court
excluded or limited some of this testimony as either lacking
foundation or because it was cumulative.
This time, the jury found both Lyle and Erik guilty of first
degree, premeditated murder. Moreover, pursuant to Califor-
nia Penal Code sections 190.2(a)(3) and (15), the jury found
true the special circumstance that Lyle and Erik committed
multiple murders while lying in wait. The defendants were
sentenced to life imprisonment without the possibility of
parole.
The California Court of Appeal affirmed the judgments of
conviction, and the California Supreme Court denied review.
Lyle filed a habeas petition with the California Supreme
Court, which was denied. Both defendants filed federal
habeas petitions, which were also denied.
ANALYSIS
A. Standard of Review
We review the district court’s denial of a writ of habeas
corpus de novo. Clark v. Murphy, 331 F.3d 1062, 1067 (9th
Cir. 2003). Because petitioners’ petitions were filed after
April 24, 1996, the Anti-Terrorism and Effective Death Pen-
alty Act (“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320,
MENENDEZ v. TERHUNE 12487
327 (1997); Pirtle v. Morgan, 313 F.3d 1160, 1166 (9th Cir.
2002). Under the AEDPA, we may not grant relief
with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudi-
cation of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
This is a “ ‘highly deferential standard for evaluating state-
court rulings,’ which demands that state-court decisions [on
the merits] be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh,
521 U.S. at 333 n.7 (1997)). A state court decision is “con-
trary to” clearly established federal law “if the state court
applies a rule that contradicts the governing law set forth in
[the Court’s] cases” or “confronts a set of facts that are mate-
rially indistinguishable from a decision of this Court and nev-
ertheless arrives at a result different from [the Court’s]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court decision is an “unreasonable application” of
clearly established federal law “if the state court identifies the
correct governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts of the pris-
oner’s case.” Id. at 413. However, in cases where we must
decide a constitutional issue not adjudicated on the merits in
state court, “we independently review the record to determine
whether the state court clearly erred in its application of
Supreme Court law.” Pirtle, 313 F.3d at 1167.
12488 MENENDEZ v. TERHUNE
B. Admission of the Tape-Recorded Therapy Session
Petitioners argue that the admission of the December 11
tape of their session with Dr. Oziel violated their right to due
process under the Fifth and Fourteenth Amendments. Petition-
ers concede that the state courts’ adverse determinations on
their claims of attorney-client and psychotherapist-patient
privilege cannot be relitigated here because that determination
is a question of state law, which cannot form the basis of fed-
eral habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).4 Thus, our review is limited to the constitutional ques-
tion posed: whether the admission of the tape violated Peti-
tioners’ rights under the due process clauses of the Fifth and
Fourteenth Amendment as interpreted in Ake.
Petitioners urge us to conclude that the Due Process Clause
of the Fourteenth Amendment, as interpreted by the Supreme
Court in Ake, includes the right of defense counsel to hire a
psychotherapist to aid not just with the question of sanity, but
to assist in all aspects involving the mental condition of the
defendant, and that any communications made to the psycho-
therapist in this connection be kept confidential.
As the State concedes, the state court did not reach the mer-
its of Petitioners’ constitutional claim on this issue. Conse-
quently, the AEDPA’s deferential standard of review “to
purely legal issues and mixed questions of law and fact” does
not apply, and we review this claim de novo. Pirtle v. Mor-
gan, 313 F.3d at 1167-68.5 Nevertheless, we reject this claim
on its merits because Ake is inapplicable.
4
The Court of Appeal determined on the record that (1) the December
11 session was not covered by the state attorney-client privilege because
it was not a confidential communication between a client and an attorney,
and (2) the state psychotherapist privilege had been waived.
5
We ordered supplemental briefing on the issue because we questioned
whether this precise due process claim was exhausted, i.e., “fully and
fairly presented” to the state courts. See Baldwin v. Reese, 541 U.S. 27,
MENENDEZ v. TERHUNE 12489
In Ake, after the defendant exhibited bizarre behavior dur-
ing his arraignment for murder, the trial judge sua sponte
ordered that he be evaluated by a psychiatrist. 470 U.S. at 71.
As a result, Ake was committed to a state hospital to inquire
about his present sanity, i.e., his competency to stand trial. Id.Later, at a pretrial conference, Ake’s attorney informed the
court that he would rely on an insanity defense, and counsel
asked, at state expense, for the assistance of a psychiatrist and
evaluation of Ake’s sanity at the time of the offense. Id. at 72.
The trial court denied the request. Id. As a result of this deci-
sion, and although Ake’s sole defense at trial was insanity,
there was no expert testimony on either side of this central
issue. Id.[1] The issue for the Supreme Court to decide was
“whether the Constitution requires that an indigent defendant
have access to the psychiatric examination and assistance nec-
essary to prepare an effective defense based on his mental
condition, when his sanity at the time of the offense is seri-
ously in question.” Id. at 70. Concluding that an indigent
defendant’s right to a fair opportunity to present his defense
includes access to psychiatric assistance with respect to an
insanity defense, the Court ruled in Ake’s favor:
We . . . hold that when a defendant demonstrates to
the trial judge that his sanity at the time of the
offense is to be a significant factor at trial, the State
must, at a minimum, assure the defendant access to
a competent psychiatrist who will conduct an appro-
priate examination and assist in evaluation, prepara-
tion, and presentation of the defense.
29 (2004). Though we continue to question whether this claim was indeed
exhausted, because the State has not argued that the claim is unexhausted,
we proceed to the claim on its merits. Cf. Simmons v. Blodgett, 110 F.3d
39, 41 (9th Cir. 1997) (holding under pre-AEDPA law that “[b]ecause
exhaustion is not jurisdictional, we have no sua sponte obligation to
[resolve the exhaustion question]”).
12490 MENENDEZ v. TERHUNE
Id. at 83. As precedent for this holding, the Court looked to
Gideon v. Wainwright, 372 U.S. 335, 339 (1963) (holding that
states must provide an indigent defendant, at state expense,
assistance of counsel at criminal trial); Griffin v. Illinois, 351
U.S. 12, 19-20 (1956) (plurality opinion) (holding that due
process and equal protection require that the state provide an
indigent defendant a free copy of the trial transcript if the
transcript is necessary to a decision on the merits of the
appeal); Burns v. Ohio, 360 U.S. 252, 257-58 (1959) (holding
that an indigent defendant may not be required to pay a fee
before filing a notice of appeal); and Douglas v. California,
372 U.S. 353, 357 (1963) (holding that an indigent defendant
is entitled to assistance of counsel on his first direct appeal as
of right). Ake, 470 U.S. at 76 (discussing cases).
We note that neither Erik’s nor Lyle’s sanity at the time of
the offense was ever seriously contemplated to be a part of the
defense or a significant factor at trial. In fact, no question of
sanity or diminished capacity was ever argued to the state trial
courts. Moreover, neither Petitioners nor Chaleff ever hired
Dr. Oziel to provide any assistance whatsoever on these or
any other issues. Dr. Oziel’s role at the time of the disputed
December 11, 1989 tape was to continue with ongoing ther-
apy. After extensive hearings on the issue, the trial court ren-
dered findings of fact that are wholly consistent with the
evidentiary record:
The Court finds that the tape-recorded session of
December 11 was for the purpose of therapy. This
finding is based upon the evidence presented to this
Court. . . .
The Court further finds that this session would
have occurred whether or not the [Petitioners] had
sought the advice of [attorney] Chaleff and regard-
less of what his advice had been in this matter. That
the session occurred and what was said during the
session were the product of the therapeutic relation-
MENENDEZ v. TERHUNE 12491
ship between the [Petitioners] and [Dr.] Oziel and
not the product of the relationship the [Petitioners]
had with [attorney] Chaleff.
The Court further finds that the [Petitioners] and
[attorney] Chaleff contemplated that a record of this
therapy session could possibly be of use to them in
defense of a criminal charge if one was later filed
against the [Petitioners], but that this was not the
motivation for the session.
The record demonstrates that Dr. Oziel’s services were not
sought by counsel. Rather, the brothers initially sought out Dr.
Oziel’s therapeutic sessions without Chaleff’s knowledge, and
Chaleff did not even know that the brothers were seeing Dr.
Oziel until Dr. Oziel contacted Chaleff. Also absent from the
record is evidence of when Chaleff first determined, as the
brothers’ attorney, that the sessions could be helpful to the
defense. As we have noted, Chaleff testified as follows:
Q: And at some point in time, either December 8th
or some other day, do you have a recollection of
deciding as their lawyer that therapy with Dr. Oziel
should continue for the purpose of, perhaps, use of
the material he was developing in the event that a
case ever got filed against him?
A: At some point I decided that continuing therapy
with Dr. Oziel would be beneficial, could be benefi-
cial, if he ever got arrested.
(emphasis added).
[2] In sum, the facts and circumstances of this case bear no
resemblance whatsoever to the situation confronted by the
Supreme Court in Ake in connection with the Court’s holding
regarding an indigent’s fundamental right to defend against
charges brought by the state. The record conclusively dis-
12492 MENENDEZ v. TERHUNE
proves Petitioners’ assertion that Dr. Oziel was “an Ake psy-
chotherapist.” The California Court of Appeal upheld the trial
court’s finding that the December 11 session was for the pur-
pose of therapy. Petitioners have fallen far short of rebutting
this finding by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1) (“In a [habeas] proceeding . . . a determination
of a factual issue made by a State court shall be presumed to
be correct. The [petitioner] shall have the burden of rebutting
the presumption of correctness by clear and convincing evi-
dence.”). Because the purpose of the December 11 session
was therapeutic, rather than to establish a defense, Ake is
inapplicable. Thus, we reject Petitioners’ claim that their trial
and resulting convictions were infected with Ake error.
C. Imperfect Self-Defense Instruction
[3] California recognizes imperfect self-defense in homi-
cide cases where the killing resulted from an “actual but
unreasonable belief in the necessity to defend against immi-
nent peril to life or great bodily injury.” CALJIC No. 5.17
(1995); see In re Christian S., 7 Cal. 4th 768, 771 (1994) (dis-
cussing imperfect self-defense). If imperfect self-defense is
established, the defendant can be guilty of no more than man-
slaughter because the requisite malice necessary for murder is
absent. Id. Though a reasonable person need not view the
peril as imminent, the defendant must make some showing
that he actually believed the peril to be imminent. Id. The
fear, no matter how great, cannot be of prospective danger or
even one that is in the near future. Id. at 783. Rather, “[a]n
imminent peril is one that, from appearances, must be
instantly dealt with.” Id. (internal quotation marks and citation
omitted).
Under California law, a defendant is entitled to a jury
instruction only if substantial evidence, or “evidence suffi-
cient to deserve consideration by the jury,” supports the giv-
ing of that instruction. People v. Barton, 12 Cal. 4th 186, 201
& n.8 (1995) (internal quotation marks omitted). The state
MENENDEZ v. TERHUNE 12493
trial court conducted an extensive hearing to determine
whether the imperfect self-defense instruction was warranted,
and concluded that, taking Erik’s version of the circumstances
as true, there was not substantial evidence of a belief that the
danger was imminent. Accordingly, the court declined to give
the imperfect self-defense instruction.
The California Court of Appeal affirmed, concluding that
there was no error in the trial court’s decision not to give the
instruction because the defense presented insufficient evi-
dence under California law of a belief in imminent peril.
Because Erik and Lyle left the house after the confrontation,
went to the car, retrieved their shotguns, reloaded their guns
with better ammunition, reentered the house, burst through the
doors and began shooting their unarmed parents, the court
concluded that there was no substantial evidence of a belief
in imminent peril. The court placed special emphasis on
Erik’s testimony that Erik knew the danger to be in the future.
Furthermore, the California Court of Appeal concluded that
even if the trial court erred in failing to give the instruction,
the omission was harmless because the jury necessarily
resolved the question posed by the proposed instruction
adversely to Petitioners.
The court’s determination that this instruction was not
appropriate and the state appellate court’s affirmance of that
decision resulted from interpretation of state law. Any error
in the state court’s determination of whether state law allowed
for an instruction in this case cannot form the basis for federal
habeas relief. Estelle, 502 U.S. at 67-68. The state court care-
fully applied state law principles and factually similar state
cases and determined that no instruction was available to Peti-
tioners because they failed to provide a basis upon which the
instruction could be given. Quite simply, that should be the
final word on the subject. However, because Petitioners argue
12494 MENENDEZ v. TERHUNE
that the refusal to instruct violated federal due process, we
press forward.6
[4] “Failure to give [a jury] instruction which might be
proper as a matter of state law,” by itself, does not merit fed-
eral habeas relief. Miller v. Stagner, 757 F.2d 988, 993 (9th
Cir. 1985). The Supreme Court has stated instead that a claim
that a court violated a petitioner’s due process rights by omit-
ting an instruction requires a showing that the error “so
infected the entire trial that the resulting conviction violate[d]
due process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977)
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). In
addition, a state trial court’s finding that the evidence does not
support a claim of imperfect self-defense is entitled to a pre-
sumption of correctness on federal habeas review. Hartman v.
Summers, 120 F.3d 157, 161 (9th Cir. 1997). Because we
agree with the state court’s finding that Petitioners failed to
demonstrate that they believed they were in imminent peril,
we conclude that there was no error and thus that Petitioners’
due process rights were not violated.
Petitioners contend that the state court failed to consider
various categories of evidence that they assert supported their
requested imperfect self-defense instruction. Specifically,
Petitioners argue that the court ignored evidence that they
were threatened with harm if they ever disclosed the abuse, as
well as evidence of the confrontations leading up to the mur-
ders and Erik’s testimony that he feared his parents might kill
him. This argument fails because none of the evidence,
including evidence of the abuse Petitioners allegedly suffered
at the hands of their parents, or even the details concerning
the confrontation that occurred the night of the attack before
6
The State argues that this claim is barred by Teague v. Lane, 489 U.S.
288 (1989). We reject this argument and proceed to the merits of the
claim, as it is a long-standing principle that instructional error may so
infect a trial that the resulting conviction violates due process. Estelle, 502
U.S. at 72.
MENENDEZ v. TERHUNE 12495
the victims and Petitioners retired to different locations, sup-
ported the imperfect self-defense instruction.
Indeed, the defense did present evidence that Jose had
repeatedly abused his sons and that Kitty had acquiesced, for
most of their lives. Erik testified that Jose had threatened to
kill him if he revealed the sexual abuse. According to Erik,
there had been several confrontations between Jose, Lyle, and
Erik days before the murders. Erik testified at extraordinary
length and in incredible detail about his childhood and his
relationships with his parents, beginning with his allegations
that his father began sexually molesting him at the age of six
and following through incident by incident until he was eigh-
teen. Erik testified that in the days leading up to the murders,
he had some fear that, at some point, his parents would kill
him — a fear that fluctuated in intensity during those final
days.
Petitioners’ focus on this evidence, however, is misplaced.
Taken at face value, this background evidence served only to
explain why the brothers might have had an unreasonable fear
of their parents at the moment they killed them. At most, the
evidence illustrated that Erik and Lyle7 feared that their par-
ents had the capacity to and might, at some point, harm them.
Erik’s testimony about his general fear in the days leading up
to the murder does not provide any evidence that, at the
moment he shotgunned his parents to death, he feared he was
in imminent peril.
Even Erik’s assertion that he feared his parents would kill
him when they exited the room is insufficient to support the
instruction. He testified that he “just wanted to get to the den
as quickly as possible before my father got out of the den. If
my dad got out of the den before I got there, it was over.” But
Erik admitted that the danger was in the future. He knew that
7
In fact, evidence that Lyle ever feared his parents is so weak in the
record that his claim could be rejected without discussion.
12496 MENENDEZ v. TERHUNE
his parents could not kill him through the walls. He knew that
“they would not kill me until they exited the den.” Taking
Erik’s testimony as true, these killings were, in effect, pre-
emptive strikes.
Thus, the instruction was not warranted under California law.8
Had either Erik or Lyle presented evidence that, at the
moment of the killings, they had an actual fear in the need to
defend against imminent peril to life or great bodily injury,
this evidence would have helped explain why they had that
unreasonable fear. Nonetheless, the fears leading up to the
murders and the reasons why such fears might have existed
simply are not the threshold issue for California’s imperfect
self-defense instruction. In re Christian S., 7 Cal. 4th at 783.
Consequently, the state court’s decision was not error, let
alone a violation of due process.
D. Exclusion of Testimony and the Right to Due Process
Lyle and Erik sought to introduce testimony that could
explain why they feared their parents. These witnesses were
referred to by the trial court as so-called “source witnesses,”
people who had “observed certain things, either observed the
interaction of the defendants with their parents or gave char-
acter evidence . . . relating to the parents, . . . things of that
nature . . . .”
8
Our decision in DePetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001),
in which we held that evidence of Battered Women’s Syndrome was erro-
neously excluded, does not affect our conclusion. The state court in that
case had already concluded that the evidence was erroneously excluded.
Bound by that determination, we concluded, among other things, that the
error was not harmless because the defendant had been restricted from tes-
tifying fully about her state of mind. Id. at 1063. Here, on the contrary,
Erik’s testimony was virtually unlimited, but he nevertheless failed to
make the requisite showing of fear of imminent peril. In any event,
DePetris is inapplicable here, as only Supreme Court decisions can form
the basis of federal habeas relief. 28 U.S.C. § 2254(d)(1).
MENENDEZ v. TERHUNE 12497
The trial court ruled, however, that the defendants were
required first to lay a foundation, which in this case, could
only be accomplished if the defendants testified about their
actual belief of imminent danger. Indeed, we, too, see no
other competent way in which the foundation could have been
laid. Erik took the stand, but Lyle chose not to testify. Peti-
tioners argue that the trial court’s ruling violated their rights
to due process because it forced them to choose between their
Fifth Amendment right against self-incrimination and their
Sixth Amendment right to present a defense. We disagree.
In disallowing this evidence, the trial judge explained:
The relevance of the expert testimony of these
experts that we’ve referred to in the hearing, the rele-
vance of that testimony was to and is to corroborate
the testimony of the defendants regarding their men-
tal state at the time of the killing, and to dispel cer-
tain misconceptions regarding the conduct of an
individual faced with a situation or circumstances as
described by the defendants.
The issue, as I looked at it and look at it now, is
the state of mind of the defendants at the time of the
killing as to whether there was an actual belief of
imminent danger of death or great bodily injury and
a need to act. Obviously, if that actual belief is not
presented to the jury, then the experts have nothing
to corroborate. . . .
Since the relevance of the expert testimony is
related to the state of mind of the defendants at the
time of the killing, the purpose of the experts’ testi-
mony that they had — that the defendants fit a cer-
tain diagnosis; that they are, whatever the expert
says, a battered person — they fit the — or fit the
diagnosis of a post-traumatic stress disorder, that is
12498 MENENDEZ v. TERHUNE
only to corroborate the defendants’ testimony as to
their mental state at the time of the crime.
....
It’s really irrelevant, and it would be totally irrele-
vant to any trial, that the defendants had been abused
or that they fit a particular diagnosis of being abused.
That’s totally irrelevant, unless it corroborates their
testimony as to their mental state at the time of the
crime. If it doesn’t do that, then the fact that they
happen to be abused or happen to fit a particular
diagnosis is irrelevant.
....
And as I look at it, the foundation of the testimony
— of the evidence is the defendants’ own testimony
of that belief [of imminent danger] . . . .
(emphasis added). The California Court of Appeal agreed
with the trial court’s ruling, concluding that the issue was not
whether Petitioners were required to testify, but whether the
testimony of the relevant witnesses was admissible despite a
lack of foundation.
Petitioners argue that the state court’s decision is at odds
with Brooks v. Tennessee, 406 U.S. 605 (1972). We disagree.
In Brooks, the Supreme Court invalidated a Tennessee statute
that required a criminal defendant who wanted to testify to do
so before any other defense witnesses could be presented. Id.
at 606. This case is not at odds with Brooks.
Apart from its limited holding, Brooks did not “curtail[ ] in
any way the ordinary power of a trial judge to set the order
of proof.” Id. at 613; see United States v. Singh, 811 F.2d 758,
762-63 (2d Cir. 1987) (trial court may refuse to accept prof-
fered testimony of witnesses until a proper foundation is laid).
MENENDEZ v. TERHUNE 12499
The critical distinction between Brooks and the present case
is that here, both Petitioners had the opportunity, at every
stage of the trial, to decide whether or not to take the stand.
On the contrary, the statute at issue in Brooks required the
defendant to testify before any other witness was presented,
lest he waive his right to testify in his own behalf. 406 U.S.
at 610-11.
The state court correctly determined that Petitioners’ right
to decide whether to testify was not the relevant issue. Indeed,
Petitioners expressly concede in their opening brief that
“where [the] foundation can only come from the defendant,
such a ruling [that the defendant first lay a foundation] would
not violate Brooks.” That is precisely the case here. Only the
defendants could testify to whether they believed the peril
was imminent. Petitioners’ argument is in essence that the
trial judge should have kept to himself his views about how
the defense could lay a proper foundation.
[5] As a matter of state evidence law, a foundation had to
be laid before the evidence could be admitted. In Lyle’s case,
the requisite foundation was not laid. Because Lyle failed to
lay a foundation, the testimony of his cousin, Diane Vander-
molen, was limited. If allowed, she would have testified that
when Lyle was eight years old, he told her his father was
molesting him and when Vandermolen told Kitty about this,
she dragged Lyle upstairs. In addition, Lyle wanted to intro-
duce an essay he wrote when he was fourteen entitled “I Will
Change Your Verdict,” a story about a man who was put on
death row after killing the person who molested his twelve-
year-old son. Finally, Lyle sought to introduce testimony of
Dr. John Conte, who would have testified that Lyle suffered
from Battered Person’s Syndrome.
[6] Erik, on the other hand, presented some evidence of his
state of mind to justify admission of additional evidence, and
12500 MENENDEZ v. TERHUNE
consequently the evidence he proffered relevant to that foun-
dation was admitted.9
[7] The state court’s conclusion that Petitioners’ due pro-
cess rights were not violated was a reasonable interpretation
of Brooks. With the benefit of having presided over the case
twice, the trial judge knew precisely what evidence the
defense had available to lay the requisite foundation. The
judge did not require the defendants to take the stand; he
merely regulated the admission of evidence, and his commen-
tary as to what evidence might constitute a foundation did not
infringe on Petitioners’ right to decide whether to testify. The
state court’s decision was proper, and we thus reject this
claim.
E. Exclusion of Testimony and the Sixth Amendment
Right to Present a Defense
[8] Petitioners’ claim here is closely related to the previous
two claims we have rejected. The exclusion of certain evi-
dence, they say, violated their rights to due process under the
Fifth and Fourteenth Amendments and their Sixth Amend-
ment right to present a defense because the proffered evidence
would have served to explain why Petitioners felt they were
in immediate danger on the night of the shootings. The trial
court excluded as either cumulative or lacking foundation: (1)
some evidence relating to specific instances of physical, psy-
9
This does not conflict with our conclusion that Erik failed to present
sufficient evidence of his state of mind to justify the giving of the
requested imperfect self-defense instruction. In deciding what evidence to
admit, the trial court had broad discretion and was required to make quick
decisions as to the relevance of evidence in making its admissibility deter-
minations. At the final stage of trial, on the other hand, when the trial
court had an opportunity to view all the evidence before deciding what
instructions were required by the evidence, the court properly concluded
that the imperfect self-defense instruction was not warranted because
Erik’s testimony was insufficient to establish that he feared he was in
imminent peril.
MENENDEZ v. TERHUNE 12501
chological, and sexual abuse; and (2) some expert testimony
that Petitioners suffered from Battered Person’s Syndrome.
The California Court of Appeal concluded that the trial court
did not abuse its discretion in excluding this evidence because
the court had admitted extensive evidence of the history of
Petitioners’ abuse at the hands of their parents. The very
length of the defense case — more than two full months —
belies an assertion that the court arbitrarily limited defense
evidence.
[9] The Constitution guarantees a criminal defendant a
meaningful opportunity to introduce relevant evidence on his
behalf. Crane v. Kentucky, 476 U.S. 683, 690 (1986). But this
right is subject to reasonable restrictions “to accommodate
other legitimate interests in the criminal trial process.” United
States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v.
Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mis-
sissippi, 410 U.S. 284, 295 (1973)). Thus, a trial judge may
exclude or limit evidence to prevent excessive consumption of
time, undue prejudice, confusion of the issues, or misleading
the jury. See id. The trial judge enjoys broad latitude in this
regard, so long as the rulings are not arbitrary or dispropor-
tionate. Id.Erik testified about the alleged abuse in great detail for
roughly seven full court days. In addition, Brian Anderson, a
cousin of Lyle and Erik, testified about severe physical abuse
that Petitioners suffered at the hands of Jose. Diane Vander-
molen testified about physical and verbal abuse by both Jose
and Kitty. Andy Cano, also a cousin, testified that Erik con-
fided to him that Jose was molesting Erik. Cano testified also
that Erik always had bruises on his body. Several witnesses
testified that when Jose was alone with one of his sons in the
bedroom, no one was allowed to go near the bedroom. Dr.
Vicary testified that Erik suffered from an anxiety disorder
that could affect his mental state. In addition, Dr. Wilson tes-
tified that Erik suffered from Battered Person’s Syndrome,
depression, and post-traumatic stress disorder. Given all of
12502 MENENDEZ v. TERHUNE
this testimony directly suggesting various forms of abuse as
to both Erik and Lyle, the trial court excluded some of the
other proffered testimony as cumulative. This decision sur-
vives scrutiny under Crane.
[10] We need not analyze this claim in any great depth, for
even were we to conclude that the state court erred in its
determination that the evidence was cumulative, such error
would be harmless. As with the other excluded evidence we
have discussed above, the proffered evidence would have
served only to explain why Lyle and Erik might have actually
feared their parents. But without any basis for support, and
with the imperfect self-defense instruction unavailable, this
evidence ultimately was irrelevant. Indeed, without the avail-
ability of imperfect self-defense, the proffered evidence
would likely have served only to confuse and mislead the
jury.
F. Closing Argument
Lyle claims that the prosecutor successfully moved to
exclude a great deal of evidence regarding the allegations of
abuse and mental health expert evidence, and then violated
Lyle’s due process rights by commenting, over objection, on
the failure to present such evidence. He argues that this vio-
lated the due process principle that a defendant must be
allowed to introduce evidence to rebut the charges against
him. This claim fails.
[11] In determining whether a due process violation has
occurred as a result of comments made by the prosecutor in
argument, courts ask “whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting con-
viction a denial of due process.’ ” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). A prosecutor may, consistent with
due process, ask a jury to convict based on the defendant’s
failure to present evidence supporting the defense theory. Cf.
MENENDEZ v. TERHUNE 12503
United States v. Garcia-Guizar, 160 F.3d 511, 521-22 (9th
Cir. 1998) (prosecutor did not shift the burden of proof in
commenting on the defendant’s failure to produce evidence).
And a prosecutor may comment on the absence of evidence
even when such evidence was available, but inadmissible, so
long as there is sufficient evidence to support the prosecutor’s
version of events. See Bashor v. Risley, 730 F.2d 1228, 1240
(9th Cir. 1984) (finding no misconduct where the prosecutor
argued that the defendant had one intention when an inadmis-
sible polygraph test suggested that he had a different inten-
tion). We conclude, as have the other courts to have
considered this claim before us, that the prosecutor’s com-
ments were well within the bounds of professional conduct
and did not render the trial unfair.
[12] Lyle points to three categories of comments made dur-
ing the prosecutor’s three-and-a-half-day closing argument.
First, Lyle contends that the prosecutor improperly argued
that Jose was a “patient man,” and “one who would not be
abusing his sons.” Lyle argues that the defense was prevented
from presenting evidence to the contrary — that in fact, Jose
was an abusive father, one who had mistreated his sons for
their entire lives. The defense was, as discussed above,
allowed to present substantial evidence relating to the allega-
tions of abuse. Indeed, Erik testified for seven days about the
various types of physical, mental, and sexual abuse he
claimed that his father inflicted. But when asked on cross-
examination, Erik admitted that, despite years of alleged
physical abuse, there were no witnesses who could testify that
they had ever seen Jose hit his sons. Erik was unable to name
a single person who had ever even asked Erik about the
bruises and welts he claimed his father inflicted on him for
years. As a result, the prosecutor merely presented his view
of the evidence relating to what kind of man and father Jose
was:
I asked Erik Menendez: “Bearing in mind you
were so frightened of your father, he was always
12504 MENENDEZ v. TERHUNE
going to punish you for everything, what was the
punishment for the burglaries?”
And he said: “No punishment.” No punishment
for the burglaries.
Ladies and gentlemen, Jose Menendez was not a
punitive man. Jose Menendez was a man who for-
gave his sons time and time again, even for the most
serious of transgressions. He was a very patient man,
and as much as he was disappointed in his sons, he
forgave them.
....
Then the other reason why they were able to do
what they did was because Jose Menendez had
taught them something, taught them a very valuable
lesson. But that lesson was turned against Jose
Menendez. He taught them to be strong. He taught
them to be ruthless.
Jose Menendez had to be ruthless in order to
achieve what he achieved. . . . He was in fact a very
ruthless man. But Jose Menendez never turned that
ruthlessness toward his own family.
But the defendants in this case, who were taught
to be ruthless, and who didn’t have a father there all
the time, or a mother to meet all of their needs,
decided to turn their rage and use that ruthlessness
that they learned from their father toward their own
parents.
. . . Lyle Menendez admits — and I even ques-
tioned Erik Menendez about this while he was on the
stand, and Erik Menendez doesn’t deny the truthful-
ness of this assertion — that Jose Menendez cried
MENENDEZ v. TERHUNE 12505
when he heard about the Calabasas [burglary] inci-
dent, and Jose Menendez cried when he heard about
his son’s failure in Princeton.
This tells you a great deal, ladies and gentlemen,
about the compassion and the love that Jose Menen-
dez had for his sons. Is this the kind of man who
would be abusing his sons?
He said — Lyle Menendez says: “After the Cala-
basas issue, he cried, and we were together. We were
close. This was the first time he cried in front of
me.”
And he later goes on to say: “He cried after the
Calabasas issue, after I said that, you know, Erik and
I were very sorry, and the whole deal — and I’m
sorry for all the trouble that you were caused through
this whole issue,” and he cried, and he felt — I think
he cried a lot after the Princeton issue, and I came to
him and I said this and that.”
Again, they want you to see Jose Menendez as a
cold monster. Easy to make those claims, ladies and
gentlemen. It’s very easy, especially when you say,
“Well, Mr. Conn, this happened behind closed doors,
you see. That’s the reason why I don’t have any wit-
nesses, Mr. Conn. It, all happened behind closed
doors.”
But ladies and gentlemen, Jose Menendez was a
man who wanted the best for his sons. Time was pre-
cious to him, yet he took time out of his own sched-
ule to attend all of the sporting events of his sons,
and he was a man who cried for his sons.
In context, we think it is clear that the prosecutor simply
argued to the jury that, based on evidence the jury heard, Jose
12506 MENENDEZ v. TERHUNE
was not abusive, contrary to what some of the witnesses had
testified. With this category of comments, we find no error.
[13] Second, Lyle argues that the prosecutor committed
misconduct by arguing that “Lyle Menendez did not call a
mental health expert.” Indeed, Lyle Menendez did not call a
mental health expert because he failed to present any admissi-
ble evidence in this regard. Moreover, viewed in the context
of the prosecutor’s argument, the comment was not about
Lyle’s failure to call a mental health expert, but a question
about whether Lyle had any explanation for his conduct at all:
They want us to believe that there is some kind of
automatic pilot that took over.
....
Ladies and gentlemen, you base the facts of this
case upon what Erik Menendez told you. You know
Erik Menendez now. You saw him testify. You saw
his explanation, and you know he was able to think.
He was able to make connections. His story was
inconsistent. He concedes time and time again he has
this rational process — he doesn’t want to use those
words.
So this was no automatic pilot, ladies and gentle-
men. What are we supposed to believe, that two men
were [on] automatic pilot? Isn’t that kind of like
lightening striking twice at one time at the same
place?
Two men on automatic pilot. Is that what we’re
supposed to believe? Do they both have the same
defense here? Lyle Menendez did not call a mental
health expert. Is that what he’s claiming?
Even the thought that these two men would both
have this absurd belief in their mind that their par-
MENENDEZ v. TERHUNE 12507
ents were going to kill them, there was no way out,
that they had to kill their parents.
That, too, would be like lightening striking twice
in the same place, at the same time.
Here again, viewing the statement in context, we agree with
the state courts and the district court — the prosecutor merely
commented on the state of the evidence. Lyle did not call a
mental health expert because he failed to lay a foundation in
this regard. He offered no admissible evidence that would
explain his actions, and the prosecution simply called atten-
tion to that fact. We find no error.
[14] Finally, Lyle contends that the prosecutor argued that
there was no evidence of sexual abuse. This was error, he
argues, because Petitioners were prevented from presenting
the ample evidence they offered suggesting that sexual abuse
had taken place. Again, we find it necessary to view these
comments in context:
Don’t decide this case based upon sympathy. Erik
Menendez and Lyle Menendez should be held
responsible for their action, and this is the one and
only opportunity the jury is going to have to be able
to do that.
And then there [were] references to greater appre-
ciation for his supporters. “Only now do I realize
how much people love me,” or something like that.
Again, trying to portray Erik Menendez in a favor-
able light. And once again, I ask you not to decide
this case based upon such factors.
A great deal of evidence was presented concern-
ing the allegations of sexual abuse, and as I indi-
12508 MENENDEZ v. TERHUNE
cated, there is no evidence whatsoever that the
sexual abuse ever took place.
A great deal of efforts were made to try to get you
to believe that there was a fear of physical abuse of
Erik Menendez. And once again, that wasn’t demon-
strated. I will go through the rest of the defense wit-
nesses, and you will see how that really wasn’t
demonstrated through those witnesses either.
One of the pieces of evidence that was presented
in this case were the so-called nude photographs.
You recall those, the photographs.
[The court called a recess.]
[Continuing argument after the recess:]
There is no corroboration of sexual abuse. One of
the allegations in this case is that Jose Menendez
would take photographs of his sons in the nude.
Ladies and gentlemen, that is a very easy allega-
tion to make, when two such photographs do exist.
But the question is just because those photographs
exist, does that mean that that’s proof that Jose
Menendez was the one who took those photographs?
As discussed above, the defense presented ample evidence
suggesting Erik and Lyle had been abused by their father. The
prosecutor merely offered his argument as to how the jury
should interpret that evidence.
Lyle points to authority he contends holds that where evi-
dence is offered, but excluded by the prosecutor, due process
is violated if the prosecutor comments on the failure of the
defense to present such evidence. In addition to a series of
state and district court cases, the defense cites Paxton v.
MENENDEZ v. TERHUNE 12509
Ward, 199 F.3d 1197 (10th Cir. 1999); United States v.
Ebens, 800 F.2d 1422 (6th Cir. 1986), abrogated on other
grounds, Huddleston v. United States, 485 U.S. 681 (1988);
United States v. Toney, 599 F.2d 787 (6th Cir. 1979). Regard-
less of the merits of these cases, here the jury heard massive
amounts of defense evidence, again, more than two full
months, about the kind of parents Petitioners claimed Jose and
Kitty were. There was no doubt here that the jury had been
presented with evidence that Jose was an abusive father — we
cannot hold that the prosecutor was not allowed to present the
jury with his interpretation of that evidence.
[15] The prosecutor may argue reasonable inferences from
the evidence presented, which is precisely what he did here.
United States v. Young, 470 U.S. 1, 8 & n.5 (1985). These
were “hard blows,” not “foul ones.” Berger v. United States,
295 U.S. 78, 88 (1935) (“[W]hile [the prosecutor] may strike
hard blows, he is not at liberty to strike foul ones.”). Thus,
because we find no error in the prosecutor’s argument, the
state court’s decision does not contravene, or involve an
unreasonable application of, clearly established federal law as
determined by the Supreme Court. Accordingly, we reject this
claim.
CONCLUSION
For the reasons explained, Petitioners are not entitled to
federal habeas relief. The judgment of the district court is
accordingly AFFIRMED.