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Petrocelli v. Baker

United States Court of Appeals, Ninth Circuit

July 5, 2017

Tracy Petrocelli, Petitioner-Appellant,
Renee Baker, Warden, Respondent-Appellee.

          Argued and Submitted September 16, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada D.C. No. 3:94-cv-00459-RCJ Robert Clive Jones, Senior District Judge, Presiding

          A. Richard Ellis (argued), Mill Valley, California, for Petitioner-Appellant.

          Robert E. Wieland (argued), Senior Deputy Attorney 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.


         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of Tracy Petrocelli's pre-AEDPA habeas corpus petition with respect to his Nevada state conviction for robbery and first-degree murder, and reversed the denial of the petition with respect to his death sentence.

         The panel held that because Petrocelli failed to invoke his right to counsel unambiguously, his April 19 interrogation was not conducted in violation of Miranda v. Arizona, 384 U.S. 436 (1966), or Edwards v. Arizona, 451 U.S. 477 (1981), and trial counsel was therefore not ineffective in failing to move to suppress testimony as fruit of the interrogation.

         The panel rejected Petrocelli's contention that use at trial of his statements to detectives on April 20 and 27 violated his Fifth, Sixth, and Fourteenth Amendment rights. Because the State used the statements only for impeachment, the panel rejected Petrocelli's contention that his Fifth and Sixth Amendment rights were violated by the taking of his statements during interrogations at which his appointed counsel was not present. The panel rejected the defendant's contention that his statements were involuntary.

         The panel affirmed the district court's conclusion that Petrocelli failed to exhaust his challenge to the jury instruction defining premeditation and deliberation.

         The panel held that the State waived any defense to Petrocelli's contention that the admission of psychiatric testimony during the penalty phase violated his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981). The panel held that even if the State had not waived its defense, admission of the testimony violated Estelle, where the psychiatrist, acting at the request of the prosecutor, visited Petrocelli in jail to determine his competency to stand trial, failed to provide Miranda warnings, did not seek or obtain permission from Petrocelli's appointed counsel to visit or evaluate him, and testified that Petrocelli was dangerous and incurable. The panel concluded that the violation had a substantial and injurious effect on the jury's decision to impose the death sentence.

         Concurring, Judge Christen wrote separately because, in her view, even if the State could show that the prosecutor's tactics had not prejudiced the jury's verdict, Petrocelli's case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief.


          W. FLETCHER, Circuit Judge.

         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 (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 (1993).

         I. Background

         A. Crime, Arrest, and Pre-Trial Interrogations

         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 of "82 APR 21 P 1:5" appears on the photocopy of the log. The number specifying the minute is cut off on the photocopy in the trial court record.) 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, "Well, I never did even finish my conversation. He just cut me off in the middle and left."

         On April 27, Dr. Gerow sent a letter labeled "confidential" to Prosecutor Laxalt in the District Attorney's office. He wrote:

At your request I examined Mr. Maida [the name under which Petrocelli was then being held] at the Washoe County Jail on April 21, 1982. I had an opportunity to discuss his case with you prior to the psychiatric evaluation.
. . .
Mr. Maida was abused as a child. He was adopted at three years of age. . . . He was in trouble at school and home at an early age. He developed a psychopathic personality which is complicated by a history of severe drug abuse. . . .
In my opinion Mr. Maida is both competent for understanding the charges and assisting his attorney and responsible (mens rea) for any alleged offense.
I have determined to see Mr. Maida in the future on an "as needed" basis. If you require my involvement as circumstances develop, please feel free to call me.

         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.

         B. Guilt Phase Trial

         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.

         C. Penalty Phase Trial

         1. Aggravating Factors and Lay Testimony

         In order to render Petrocelli death-eligible, the State had to establish at least one aggravating factor. During the penalty phase of Petrocelli's trial, the State sought to establish two such factors: (1) that the murder had been committed in the course of a robbery, and (2) that Petrocelli had previously been convicted of a violent felony, the kidnaping of his girlfriend Melanie Barker. (The first factor was later held by the Nevada Supreme Court to be invalid. See McConnell v. State, 102 P.3d 606, 624 (Nev. 2004) (per curiam). In reviewing Petrocelli's third petition for post-conviction relief, the Nevada Supreme Court held that use of this factor had been improper.)

         To establish the first factor, Prosecutor Laxalt put John Lucas on the stand. Lucas had been in the Washoe County Jail with Petrocelli for about five weeks after Petrocelli's arrest for the Wilson murder. Lucas testified that Petrocelli had told him that he had shot Wilson in order to steal the truck. He also testified that Petrocelli said he was "going to get rid of" the district attorney as well as an unidentified woman Petrocelli characterized as a "snitch."

         The second factor was Petrocelli's conviction for kidnaping Barker. At trial, it was uncontested that he had later killed her. However, at the time of trial he had not been convicted of the killing. To establish the second factor, Prosecutor Laxalt called Melanie Barker's mother, Maureen Lawler, to testify about the circumstances that had led to the kidnaping. The jury had already learned during the guilt phase, from Petrocelli's testimony and from the testimony of an eye-witness, that Petrocelli had killed Barker. Lawler testified only as to the circumstances that had led to the kidnaping conviction. Lawler, who had lived with her daughter in the city of Kent, in western Washington, testified that Barker had gone to eastern Washington with Petrocelli for three days, that Barker had been "beaten on the face" and was "hysterical" when she returned home, and that at some point during the three days Barker had been told by Petrocelli that his friends would "do away with her." Lawler testified that after Barker had told Petrocelli that her mother would have the police looking for her, "He agreed to take her back. . . . At that point, she got away from him." Lawler also described a phone conversation, prior to the kidnaping, when Lawler had arranged for Petrocelli's wallet to be taken to the police station. Petrocelli objected to her having done so, and she testified that Petrocelli said he "would blow me away." Laxalt also called Joan Bleeker, who testified that Barker had come into a restroom during the time she was in eastern Washington and had asked Bleeker to call the police because she was being kidnaped.

         Petrocelli testified, presenting his version of what had happened during the three days in eastern Washington in an attempt to show, despite his conviction, that he had not really kidnaped Barker. According to Petrocelli, Barker went with him voluntarily; they were accompanied by a friend of Petrocelli; they went out in public, eating in restaurants and going to stores together; and she and Petrocelli got in a fight as they were driving back to western Washington.

         In the interval between the testimonies of Lawler and Bleeker, Prosecutor Laxalt played a tape recording of a portion of Petrocelli's interrogation on April 20 in which Petrocelli described the Wilson killing. Petrocelli had cried during his in-court testimony when describing the Wilson killing. The tape recording is not in the record, but it is apparent from the transcript that Laxalt played the tape to contrast Petrocelli's tearful demeanor during trial to an unemotional demeanor on April 20.

         2. Professional Mental Health Evidence

         Defense counsel Wishart submitted written reports by three different mental health professionals-Dr. John Petrich, a psychiatrist; Dr. Martin Gutride, a psychologist; and Dr. John Chappel, a psychiatrist. Wishart called none of the three to give live testimony.

         Dr. Petrich's evaluation of Petrocelli's mental health and future dangerousness was the most favorable to Petrocelli, but his evaluation was of limited use to the defense. Petrich had evaluated Petrocelli in June 1981, when Petrocelli was in jail in Washington State on the kidnaping charge, prior to killing Barker and Wilson.

         Drs. Gutride and Chappel evaluated Petrocelli in July 1982, after he had killed Barker and while he was in jail waiting to stand trial for killing Wilson. Gutride reported that Petrocelli was adopted at age two and a half, and had been physically abused by his biological mother. Petrocelli's adoptive mother died when Petrocelli was seventeen, and Petrocelli attempted suicide several months after the funeral. After his adoptive mother's death, he became close to his adoptive father for a brief time, but fell out of touch after his father remarried. Gutride reported that Petrocelli cried when he spoke about having lost contact with his father. Petrocelli was "placed in a military academy at age twelve because of discipline problems, " and he joined the Marines at about age seventeen. While in the Marines, Petrocelli was arrested for fighting with policemen while drunk; shortly thereafter, he began going AWOL. He was eventually given a dishonorable discharge. Sometime around 1974, Petrocelli moved to Washington State, began working in a steel mill, and became, by his own admission, "increasingly unstable." In 1976, he attempted suicide. In 1977, he was arrested for theft but fled before his trial. He became a professional gambler in Reno, Nevada, and began abusing alcohol and drugs. He was arrested in 1980 for kidnaping Barker.

         Dr. Gutride reported that Petrocelli "cried openly" during the interview and that his "distraught behavior had the quality of his practically begging for help." "[H]e desperately wants to know what is the matter with him and why he did the things he is charged with. He doesn't deny responsibility, but says he can't remember most of the circumstances surrounding the various crimes." According to Gutride, Petrocelli told him he "ha[d] called crisis lines in every city, but been unable to get any help" and "ha[d] talked with psychiatrists while in other jails and been put off."

         Dr. Gutride reported that throughout the interview, Petrocelli's "thought processes were logical and coherent, memory seemed good, but selective, and intelligence seemed quite adequate." However, "[o]nce formal testing began, the client seemed to lose those qualities. The difference was so striking that he appeared to be faking 'bad.'" Gutride concluded ...

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