McNeil v. Middleton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALLY MARIE MCNEIL, 

Petitioner-Appellant, No. 01-56565

v.

 D.C. No.

CV-99-01490-JM

RAYMOND L. MIDDLETON; BILL

LOCKYER, OPINION

Respondents-Appellees.



On Remand from the United States Supreme Court

Filed March 29, 2005

Before: Robert R. Beezer, Ferdinand F. Fernandez, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Fernandez;

Dissent by Judge Paez

3783

MCNEIL v. MIDDLETON 3785

COUNSEL

Charles R. Khoury, Jr., Wilton, New Hampshire, for the

petitioner-appellant.

Warren P. Robinson, Deputy Attorney General, San Diego,

California, for the respondent-appellee.

OPINION

FERNANDEZ, Circuit Judge:

We fully outlined the background of this case in our first

opinion,1 and will not repeat all of its shocking details here.

Suffice it to say that McNeil took a shotgun and fired it into

the midsection of her husband while he was cooking. Not

feeling that she had done enough damage, she then reloaded

the weapon and shot him in the face. The first shot caused so

much damage that his liver was protruding out of his skin; the

second blew away much of the lower portion of his face. He

died.

McNeil, who was, herself, an aggressive and violent per-

son, asserted that she suffered from the effects of Battered

Women’s Syndrome (“BWS”) and that, therefore, she had

shotgunned her victim in an act of perfect self-defense. At the

very least, she said, her actions were an instance of imperfect

self-defense, which would make her guilty of voluntary man-

1

McNeil v. Middleton, 344 F.3d 988, 991-94 (9th Cir. 2003) (McNeil I),

rev’d 541 U.S. 433, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004) (per

curiam).

3786 MCNEIL v. MIDDLETON

slaughter at worst. Each of those defenses requires that a

woman have an actual belief in the need to defend herself.

They differ in that perfect self-defense requires that the belief

be reasonable, whereas for imperfect self-defense the belief

must be unreasonable.

The trial judge correctly instructed the jury that BWS could

be considered on the issue of McNeil’s actual belief, but

incorrectly instructed that it could not be considered in testing

reasonableness for perfect self-defense purposes. The jury

could consider BWS for the purpose of deciding if there was

an unreasonable belief for imperfect self-defense purposes.

The jury specifically found that McNeil was guilty of second

degree murder and that she was not guilty of voluntary man-

slaughter.2

When this case was previously before us, we determined

that the writ should issue. We said that if the jury followed the

instructions literally, it could have rejected imperfect self-

defense because McNeil did not behave as a reasonable per-

son in reacting as she did. See McNeil I, 344 F.3d at 997. In

other words, she could not show that her crime was voluntary

manslaughter, rather than murder. Id. Thus, even though BWS

evidence could be considered, it did her little good because if,

due to BWS, her perceptions were other than that of a reason-

able person, she could not demonstrate that her actions

resulted in voluntary manslaughter at most.3

The Supreme Court reversed because it did not agree with

us. See Middleton v. McNeil, 541 U.S. 433, 124 S. Ct. 1830,

2

We will not inquire into whether the jury erred in deciding both issues.

That would be improper. See Stow v. Murashige, 389 F.3d 880, 883 (9th

Cir. 2004).

3

Due to a BWS instructional error, McNeil was already deprived of the

use of that concept for the perfect self-defense purpose of deciding

whether her belief was reasonable. We held that the error regarding volun-

tary manslaughter took away imperfect self-defense as well, and left her

exposed to the full force of the other evidence.

MCNEIL v. MIDDLETON 3787

158 L. Ed. 2d 701 (2004) (per curiam) (McNeil II). In its

view, we had expected too much legal sophistication (even

scholasticism) on the part of jurors. Id. at ___, 124 S. Ct. at

1833. As the Court put it:

Perhaps the Ninth Circuit reasoned that the errone-

ous definition of “imminent peril” caused the jury to

believe that the earlier, correct instructions (“actual

but unreasonable belief in the necessity to defend

against imminent peril”) meant that, although the

belief in the necessity to defend may be unreason-

able, the belief in the existence of the “imminent

peril” may not. This interpretation would require

such a rare combination of extremely refined

lawyerly parsing of an instruction, and extremely

gullible acceptance of a result that makes no con-

ceivable sense, that the state court’s implicit rejec-

tion of the possibility was surely not an

unreasonable application of federal law.

Id. (emphasis in original). Were we now to order issuance

of the writ, we would fall into that same pit by assuming that

the jurors took too much notice of legal niceties as they fos-

sicked for meaning in the bosk created by the trial court’s

instructions. Let us explain.

[1] Despite the legal technicalities of the instructions, the

Supreme Court has told us in no uncertain terms that we must

assume that the jury would not fall prey to those technicali-

ties. It is apparent that the only nontechnical way that the jury

could find McNeil guilty of second degree murder but not

guilty of voluntary manslaughter would be if she failed to

have an actual belief in the need for self-defense. Otherwise,

the jury would have had to say something like this to itself:

“Considering the BWS evidence, we think that McNeil is not

guilty of voluntary manslaughter because she had an actual,

but reasonable, belief in the need for self-defense, and, there-

fore, her self-defense was not of the imperfect variety. How-

3788 MCNEIL v. MIDDLETON

ever, when we come to second degree murder, where we

cannot use BWS evidence for the purpose of deciding the

question of reasonable belief, we find that she cannot estab-

lish perfect self-defense because she had an actual, but unrea-

sonable, belief in the need for self-defense.”

There may not be an intellectual or logical disconnect in

that form of reasoning, but the Supreme Court has told us

that, while the legal mind might be that daedalian (or would

it say “banausic”), no jury would be. That is, no jury would

consent to allow itself to be intellectually manipulated into

convicting a person of second degree murder and acquitting

her of voluntary manslaughter because it found her belief in

the need for self-defense reasonable in the latter case but

unreasonable in the former. Even if it would be rational for a

juror to think that way and wind up convicting McNeil of a

greater offense, it would bespeak, as the Court has put it, too

much lawyerly refinement and too much gullibility. Id.

[2] What we are left with is the only common ground

between the two defenses — lack of an “actual belief” in the

need for self-defense.4 If the jury found that, she would not

be entitled to either perfect or imperfect self-defense and,

thus, would not be guilty of voluntary manslaughter, but must

be guilty of second degree murder. Or, at the very least, the

state courts’ decisions that the jury must have so determined

was “surely not an unreasonable application of federal law.”

Id.; see also 28 U.S.C. § 2254(d)(1). In other words, the state

courts could properly hold that McNeil’s lack of an actual

belief in the need for self-defense made the instructional

errors regarding reasonableness non-prejudicial. Were we to

hold otherwise, our former “error” would become recrudes-

cent.

4

It is noteworthy that the jury could consider BWS when it ruminated

upon the actual-belief issue.

MCNEIL v. MIDDLETON 3789

CONCLUSION

[3] Because we cannot say that the state courts unreason-

ably applied federal law when they upheld McNeil’s convic-

tion, the writ of habeas corpus cannot issue.

AFFIRMED.

PAEZ, J., dissenting:

I respectfully dissent.

In my view, McNeil’s due process right to present a com-

plete defense was violated when the trial court incorrectly

instructed the jury that the evidence of Battered Women’s

Syndrome (BWS)1 could not be considered for the reasonable-

ness of her belief in the need for self-defense.2 McNeil’s sole

defense to the murder charge was that she shot Ray in self-

defense. To establish a claim of perfect self-defense, she had

to show that her fear of imminent harm was both actual and

reasonable. See People v. Humphrey, 921 P.2d 1, 6 (Cal.

1996). To do so, she relied heavily on the BWS evidence. The

trial court’s erroneous limiting instruction precluded McNeil

from establishing the reasonableness of her belief — a critical

element of her defense. Thus, the trial court deprived McNeil

of her due process right to “be afforded a meaningful opportu-

nity to present a complete defense.” California v. Trombetta,

467 U.S. 479, 485 (1984); see also Chambers v. Mississippi,

410 U.S. 284, 294 (1974); Washington v. Texas, 388 U.S. 14,

1

We detailed the substance of McNeil’s BWS evidence in our original

opinion, see McNeil v. Middleton, 344 F.3d 988, 992-93, 1001 (9th Cir.

2003), and I need not repeat it here.

2

In our original opinion, we limited our analysis to the imperfect self-

defense instruction and did not reach this instructional error. See McNeil,

344 F.3d at 995.

3790 MCNEIL v. MIDDLETON

19 (1967); see also DePetris v. Kuykendall, 239 F.3d 1057,

1062-63 (9th Cir. 2001) (recognizing that the exclusion of

evidence that “went to the heart of the defense” was unconsti-

tutional under Chambers and Washington).

In concluding that the instructional error was harmless, the

California Court of Appeal reasoned that because the jury

found McNeil guilty of second-degree murder, it must have

found that she lacked an actual belief in the need to act in

self-defense. In so concluding, the court relied on the fact that

“[t]he jury was specifically instructed that if McNeil had an

actual belief in the need to act in self-defense she could not

be guilty of murder.” People v. McNeil, No. D026047, slip op.

at 11 (Cal. Ct. App. Jun. 18, 1998). Yet the jury was not so

instructed, either explicitly or implicitly. Instead, the jury was

clearly and repeatedly told that the “killing of another person

in self defense is justifiable and not unlawful when the person

who does the killing” had an actual and reasonable belief in

the need for self-defense. Thus, the fact that the jury con-

victed McNeil of second-degree murder does not conclusively

establish that it found that she lacked an actual belief in the

need for self-defense.

The majority agrees with the California Court of Appeal’s

conclusion that the jury must have found that McNeil lacked

an actual belief in the need for self-defense. It relies on the

jury’s verdict of “not guilty” on the voluntary manslaughter

charge to show that the common denominator among these

inconsistent verdicts is that McNeil lacked an actual belief in

the need for self-defense. The majority’s reasoning implies

that by returning a verdict of “not guilty” of voluntary man-

slaughter, the jury actually meant that the imperfect self-

defense did not apply — that is, McNeil did not qualify for

this lesser charge because she lacked an actual belief in the

need for self-defense.

I decline to place any confidence in the jury’s voluntary

manslaughter verdict. It was clearly inconsistent for the jury

MCNEIL v. MIDDLETON 3791

to find McNeil not guilty of voluntary manslaughter, yet

guilty of second-degree murder. The jury was specifically

instructed not to return any other verdict forms if it found

McNeil not guilty of first degree murder, but guilty of second

degree murder. Although it is possible that the jury made a

simple mistake and intended to determine that imperfect self-

defense did not apply, we cannot know the jurors’ delibera-

tions. See Stow v. Murashige, 389 F.3d 880, 890 (9th Cir.

2004). We simply cannot divine the jurors’ thought processes

to construe an internal coherence among the inconsistent ver-

dicts.

Because the centerpiece of McNeil’s defense was the BWS

evidence, the erroneous instruction effectively precluded the

jury from finding that she acted in self-defense when she shot

and killed Ray. The record leaves me in “grave doubt” as to

whether the denial of McNeil’s due process right to present a

meaningful defense had a “substantial and injurious” effect on

the jury’s verdict. See O’Neal v. McAninch, 513 U.S. 432, 436

(1995); Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). I

would therefore reverse the district court’s denial of habeas

relief.