951 F. 2d 359 - Devere v. Falk
951 F.2d 359
Andrew Lee DEVERE, Plaintiff-Appellant,
v.
Harold FALK, Defendant-Appellee.
v.
Harold FALK, Defendant-Appellee.
No. 90-16367.
United States Court of Appeals, Ninth Circuit.
Argued and submitted Nov. 4, 1991.
Decided Dec. 20, 1991.
Decided Dec. 20, 1991.
NOTICE: Ninth Circuit Rule 36-3 provides that
dispositions other than opinions or orders designated for publication
are not precedential and should not be cited except when relevant under
the doctrines of law of the case, res judicata, or collateral estoppel.
Before ALARCON, D.W. NELSON and CANBY, Circuit Judges.
2
Andrew Lee Devere, a state prisoner, appeals from the
district court's denial of his petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. A jury convicted Devere of first-degree
murder in a Hawaii state court. He was sentenced to life in prison
with the possibility of parole.
3
DISCUSSION
Devere claims that his conviction was obtained in
violation of the federal Constitution. He contends that he was denied
the right to a fair trial under the due process clause of the Fourteenth
Amendment because the state court admitted evidence of a psychiatrist's
opinion regarding the credibility of other witnesses. We disagree and
affirm.
4
Devere contends that the state trial court erred in
allowing a psychiatrist to testify concerning his opinion of the
credibility of various witnesses. Devere argues that this error
deprived him of his federal constitutional right to a fair trial under
the due process clause of the Fourteenth Amendment.
5
We review de novo the denial of a petition for a writ of habeas corpus. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988); Weygandt v. Ducharme, 774 F.2d 1491,
1492 (9th Cir.1985). We begin our analysis by noting that we have no
authority to review a state's application of its own laws. Jackson v.
Ylst, 921 F.2d 882, 885 (9th Cir.1990). As we stated in Jammal v. Van De Kamp, 926 F.2d 918
(9th Cir.1991), "[w]e are not a state supreme court of errors; we do
not review questions of state evidence law." Id. at 919. On a
petition for writ of habeas corpus, we consider only whether the
petitioner's conviction violated constitutional norms. See Engle v.
Isaac, 456 U.S. 107, 119
(1982) (state prisoner is entitled to relief under 28 U.S.C. § 2254 only
if he is held in custody in violation of the Constitution or laws or
treaties of the United States); Milton v. Wainwright, 407 U.S. 371,
377 (1972) ("The writ of habeas corpus has limited scope; the federal
courts do not sit to re-try state cases de novo but, rather, to review
for violation of federal constitutional standards"); Jammal, 926 F.2d
at 919; Ylst, 921 F.2d at 885; Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.1990); Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir.1986), cert. denied 479 U.S. 1068 (1987); Gutierrez v. Griggs, 695 F.2d 1195,
1197 (9th Cir.1983). Therefore, the dispositive issue in this case is
whether the admission of Dr. Hall's testimony rendered the trial so
arbitrary and fundamentally unfair that it violated due process.
Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986).
6
We conclude that the admission of the disputed
testimony did not deprive Devere of due process. Dr. Hall did not
directly testify as to the credibility of the testimony of witnesses at
trial, thereby encroaching on the role of the jury. He testified
concerning the data underlying his report. While Dr. Hall testified
that he disregarded as unreliable the statements of a person who
testified for the defendant, he was not commenting on that person's
in-court testimony. The trial judge twice gave a cautionary
instruction that Dr. Hall's testimony was not to be considered by the
jury as evidence of the truth of his information; it was only to be
considered as an explanation for the basis of his opinion. In light of
those instructions, we cannot say that the admission of Dr. Hall's
testimony rendered the trial arbitrary and fundamentally unfair.
7
We have also considered the effect of Dr. Hall's
testimony in the context of the entire trial. After reviewing the
record in this matter, we are persuaded that Dr. Hall's testimony did
not deprive Devere of due process because Devere's own statement to the
police, introduced at trial, provides sufficient evidence to conclude
that he was not under emotional duress at the time of the killing. See
Gutierrez, 695 F.2d at 1199 (defendant not deprived of due process by
state court evidentiary ruling where his own statement of facts reveals
that he was not under duress at the time of the killing).
8
The Hawaii Penal Code explains the emotional distress defense as follows:
9
In a prosecution for murder it is a defense, which
reduces the offense to manslaughter, that the defendant was, at the time
he caused the death of the other person, under the influence of extreme
mental or emotional disturbance for which there is a reasonable
explanation. The reasonableness of the explanation shall be determined
from the viewpoint of a person in the defendant's situation under the
circumstances as he believed them to be.
10
Haw.Rev.Stat. § 707-702(2) (emphasis added). This
defense is not available, however, where the defendant deliberately "set
out to kill" his victim. State v. Russo, 734 P.2d 156, 160
(Haw.Sup.Ct.1987). As the court explained in State v. Tyquiengco, 723
P.2d 186 (Haw.Ct.App.1986):
11
[m]alice and heat of passion cannot coexist. The
mere fact of passion on the part of the slayer will not reduce the crime
from murder to voluntary manslaughter where he entertained a previous
purpose to kill, unless it is made to appear that such purpose was
abandoned before the homicidal act was committed.
12
Id. at 188 (citation omitted).
13
Devere's inculpatory statement to the police
demonstrates that he deliberately set out to kill Boyer. In his second
interview with the police following his arrest, Devere stated that he
attempted to obtain a gun a week before the killing. When he was
unable to obtain a gun, Devere stated that he decided to "take [Boyer]
out some other way." Devere further told the police that he intended
to wait until Boyer fell asleep before killing him, but Devere fell
asleep first. The next morning Devere stood over Boyer's bed holding
the hammer, but he stated that he was initially too scared to kill Boyer
and put the hammer down. Finally, Devere stated that "I wasn't mad at
him at the time that I did it.... But I knew I had to do it
because.... later on ... I knew that I would, you know, I would forget
about how he treated me."
14
In addition, none of Devere's proffered justifications
for the killing constitute a reasonable explanation. Devere told the
police that he killed Boyer because (1) Boyer was killing a friend of
Devere's by supplying that friend with drugs; (2) Boyer embarrassed
Devere and put him down in front of other people; (3) Boyer had
developed a habit of farting in Devere's face; (4) Boyer once attacked
Devere with a knife, slicing Devere's finger; (5) Boyer made Devere beg
for drugs; and (6) on the morning that Devere killed Boyer, Boyer had
refused to give Devere money to buy medication to soothe Devere's sore
throat. Although the reasonableness calculation is made by "viewing
the subjective, internal situation in which the defendant found himself
and the external circumstances as he perceived them at the time, however
inaccurate that perception may have been," State v. Dumlao, 715 P.2d
822, 830 (Haw.Ct.App.1986) (citation omitted), generalized anger at
another person is not considered reasonable. See Tyquiengco, 723 P.2d
at 188 (defendant not entitled to a manslaughter instruction where he
killed the victim because she did not want to make love to him and she
pointed an air rifle at him in order to get him off her property).
Instead, a defendant's anger may be considered reasonable when, for
example, short of severe mental illness, the defendant suffers from
persistent delusions or pathological emotions directed at the victim.
Dumlao, 715 P.2d at 831-32 (defendant entitled to manslaughter
instruction in a trial for the killing of his wife where he was
diagnosed as having an extreme and irrational jealousy concerning his
wife for many years).
15
The record does not support Devere's contention that
the admission of the psychiatrist's statement violated due process.
Devere's own statements amply demonstrated that he acted with
premeditation and that he did not suffer from extreme mental and
emotional disturbance. Accordingly, we AFFIRM.
*
This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by Ninth
Cir.R. 36-3
No comments:
Post a Comment