McLuckie v. Abbott

proceedings REMANDED for consistent opinion.

with this McLUCKIE, Lynn

Lori Petitioner-

Appellant, ABBOTT, Warden; Attorney

James Colorado,

General of the State of

Respondents-Appellees.

No. 02-1017.

United of Appeals, States Court

Tenth Circuit.

July Johnson,

Thomas P. Davis Graham & Dеnver, Stubbs, CO, for the Petitioner- Appellant. Krause,

John J. Assistant Solicitor Gen- (Ken Salazar, eral Attorney General with brief), Denver, CO, him on the for the Respondents-Appellees. bathtub, and SEYMOUR, LUCERO, bloody a in the rubber sheet

Before In trash HARTZ, Judges. gloves in McLuckie’s bedroom. Circuit they dumpsters apartment, outside the LUCERO, Judge. Circuit body parts grocery bags containing found McLuckie, a Colorado Lynn Lori in aluminum foil. wrapped murder first-degree of prisoner convicted bizarre and macabre nature Due ap- imprisonment, life and sentenced case, public two defenders peti- of her denial the district court’s peals reрresent McLuckie im- assigned were pursuant corpus of habeas a writ tion for a mediately aid of mental- enlisted the granted This § 2254. to 28 U.S.C. Dr. Susan Bernhard. After expert, health appealability of certificate McLuckie a examination, including the administra- an 2253(c) (“COA”) to 28 U.S.C. pursuant tests, Dr. tion of several clinical Bernhard legal claim of to her sole respect with may a concluded failure to investi- trial counsel’s error: that (1 state defense.” “meritorious mental evidence psychological gate present 3.) 19, 2, Dr. Bernhard noted para. Doc of effective assistance deprived her from sеvere suffering that McLuckie was Washington, v. under Strickland counsel sup- test data problems, emotional 2052, 668, 687, S.Ct. impaired mental condition de- ported (1984). Thus, jur- exercising L.Ed.2d fense, that she have had an §§ 1291 and under 28 U.S.C. isdiction defense, questions: and that the matter called for presented we are with two (1) constitutional Dr. Bern- investigation. whether McLuckie’s further right to effective assistance counsel hard did not conclude McLuckie met (2) violated; judgment legal insanity the standards for or dimin- Appeals denying capacity ished mental Colorado. post conviction relief Strickland Syn- in Battered An Woman to, contrary or involvеd an unreason- “was drome, con- Dr. Lenore was then of, clearly able established examining tacted. After as the Su- determined Federal a in which she prepared report Walker States, within Court of the United preme from that McLuckie suffered concluded 2254(d)(1).” meaning of 28 U.S.C. Syndrome Battered sub-cate- Woman Taylor, 529 U.S. Williams gory of Post-Traumatic Stress Disorder. (quota- 146 L.Ed.2d 389 S.Ct. She found that McLuckie was a former omitted). sec- tion Because we answer the victim, physically rape that she been negative, affirm question ond sexually relationship abused denial habeas relief. Vigil, and homicide arose out with that thе “psychological I condition of McLuckie’s being being battered and from sexu- con- relating facts (3 56.) ally id. at abused.” undisputed. May are viction On that McLuckie’s “serious mental noted Police a search warrant Denver executed problems” presented “complex health revealing apartment, gris- at McLuckie’s diagnosable in case” and “were not inside, ‍‌‌‌‌‌​​​‌‌‌​​​​​‌‌‌​​​​​​​‌​‌​​‌‌‌​‌​​​​​‌‌​‌‌​‌‍found ly they scene. the head Once 57.) way.” explained ususal She body of and torso of the dismembered that McLuckie’s actions were “consistent Vigil, Andrew with whom McLuckie had inability state and other with dissociative romantically involved. McLuckie C, reality.” id. Doc. Ex. perceive asleep in the bedroom. search kitchen, para. suggested Dr. Walker premises revealed a saw in the witness, reality im- call perception McLuekie’s Dr. Walker as a but told her paired sufficiently negate delibera- that he to defend McLuckie by required first-degree un- murder putting theory. self-defense 18-3-102(a). der C.R.S. She stated Walker told Lozow disagreed that she with professional opinion, her “McLuckie did events, sequence Lozow’s of but that she a mental was health disorder that testify willing remained to as to psy- her seen in other often battered women and chological findings. psychotic victims have a break abuse who Despite assumption Lozow’s reality of with because the extreme levels settle, case would it eventually became of fear that will be they killed clear that the go case would to trial. It (1 C, 3.) id. Ex. para. abuse.” Doc. Like only point, shortly was this before trial Bernhard, Dr. Dr. Walker did not defini- commence, was scheduled to that Lozow tively le- conclude McLuckie met the talking and McLuckie “started about the insanity. definition of gal (4 itself,” 11) offense R. at Supp. and Lo- Based on the information from the two (4 really trial,” zow “started to prepare for public psychological experts, defenders id. at After meetings with McLuckie intended to to attempt negotiate plea a and a discussion with Dr. Lozow guilty second-degree to murder. Were began to have “serious doubts as to the trial, to proceed public case to defend- (4 sanity.” state of [McLuckie’s] id. at 9- ers intended to call both Walker Bern- 12.) Accordingly, sought Lozow leave to as expert hard witnesses. their Before plea enter a guilty by reason of investigation further, proceed could howev- on insanity behalf of McLuckie on January er, pro a filed se on motion days four beforе beginning 12, 1988, to October dismiss her public explaining to the court that he had “con- appoint defenders and new counsel. Her firmed doubts with Lenore [his] Walker” father retained Donald Lozow de- as her he had good cause to enter the attorney. fense Lozow While had some 11.) new id. at plea. primary His expla- prepare, months to with the trial sched- nation for his failure enter plea January 30,1989, to begin uled he made anticipated earlier that he plea a preparations few trial antic- for because he He I bargain. “maybe stated was incom- ipated plea would offer Stаte petent up” not to brought earlier.

bargain. For example, though he came to rejected The court insane, believe that his client was Lozow untimely, ordered, as at Lozow’s re- Bernhard, reach attempted never quest, that McLuckie be examined once despite having her contact information. again by Walker different men- post- Lozow testified at a Colorado state expert, tal-health Dr. Gutterman. Neither 35(c) Rule hearing conviction that he never nor Dr. willing Gutterman was hired an investigator, and did recall to state that McLuckie met standards interviewing other than land- witnesses diminished mentаl ca- and/or lord, including neighbor the next-door pacity in Colorado. heard an argument. sounds of jury began January trial Although Lozow meet with Dr. stand, Calling pro- McLuckie to the Lozow

Walker before trial to discuss Battered present ceeded to self Syndrome, Dr. the theo- Woman Walker later testi- ry According McLuckie, ease. meetings gave fied these im- his her the pression Vigil that Lozow did not came uninvited. understand house She right drinking the defense. Lozow reserved the he had thought and she was with case testified that claim self defense pregnant she was frightened because making inappropriate light the facts Vigil began child. another man’s expert child. and her unborn the homicide and that assistance threats both her, Vigil raped necessary help understand testified kitchen, into the her cats a mental-state defense. A criminal-de- one of threw ap- before television screen case punched clearly fense testified that the in the kitchen. She proaching McLuckie for a mental-state defense and that called hammer, him with a that she hit theory testified completely of self defense was knife, just stabbing.” and “was grabbed the facts inconsistent with of the case. (5 920.) further testified McLuckie he acknowledged pur- Lozow failed to ground, put (be she once he fell to the any sue kind mental-state defense he Vigil making was handcuffs on because insanity, capacity, or diminished mental explained that she did McLuckie noises. Syndrome) despite Battered Woman his afraid police not the because she was tell insane, now belief was her, as she had they believe would he Dr. claimed that chose use Walker in a rape been a victim case previously at trial because she had told him about acquitted. which defendant was “devastating in her (Colo. 24, slip op. Aug. Having at 1 application court’s of federal we are remedies, exhausted her McLuckie precluded issuing the writ simply application filed federal district court because we independent conclude our corpus for a writ of habeas under 28 judgment applied that the state ‍‌‌‌‌‌​​​‌‌‌​​​​​‌‌‌​​​​​​​‌​‌​​‌‌‌​‌​​​​​‌‌​‌‌​‌‍court § U.S.C. 2254. ha- denying McLuckie’s Rather, law erroneously incorrectly. petition, beas the district court concluded application we must be convinced that the that while McLuckie’s counsel indeed objectively also unreasonable. ineffective, did not meet the Williams, 412, at 120 S.Ct. 1495. prong “it of Strickland because is too In reviewing McLuckie’s petition, we are say much to that Dr. testimony Walker’s mindful also of fac- “[a] determination solely based Ms. on McLuckie’s statements by tual issues made a State court shall be probably her would have altered the presumed to be correct” and that “[t]he by outcome return of a verdict of less applicant shall have the burden of rebut- than degree first murder.” McLuckie v. ting presumption by of correctness Abbott, 99-M-1575, op. No. slip at 8 convincing clear evidence.” (D.Colo. 28, 2001). Dec. 2254(e)(2). II Ill peti- Because McLuckie filed her clearly established federal law con- court district after effective trolling the issues raised in this case is date of the Antiterrorism and Effective Washington, Strickland v. under which a (“AEDPA”), Death Act Penalty of 1996 right defendant is denied constitutional provisions AEDPA’s apply appeal. to this (1) to effective assistance of counsel when: Ward, 1206, See Hooks v. 184 F.3d deficient; performance counsel’s (10th Cir.1999). AEDPA, ap- Under performance prejudiced the deficient propriate depends standard of review the defendant. 466 U.S. at 104 S.Ct. whether a claim was decided on merits the first we look prong, Under in state “If court. the claim was heard representation fell courts, “counsel’s be- on the merits the state and the low аn standard of federal court reasonable- district made its own deter- ness,” instance, meaning pre- mination in first “reasonableness district court’s of law vailing professional conclusions de norms.” Id. scrutiny an unreasonable Strick- coun- was 2052. “Judicial 104 S.Ct. highly deferen- must be land. performance sel’s “indulge

tial,” are instructed courts Maintaining performance that Lozow’s that counsel’s con- strong presumption standard, below a reasonable fall range wide of reason- duct falls within that, given argues Lozow’s testi- the state Id. at assistance.” professional able 35(c) hearing that he did mony the Rule 104 S.Ct. 2052. testify because hе not call Dr. Walker damaging information con- prong of Strick feared that the second Under land, demonstrate would come into defendant must tained in her notes evi- counsel’s probability” dence, pursue “reasonable not to a Bat- his decision defendant, prejudiced the performance tered-Woman-Syndrome defense was to under meaning probability “sufficient tactical trial decision. While reasonable Id. mine confidence the outcome.” ambiguous is as to the record somewhat than' a 2052. This less S.Ct. had, whether the trial re- evidence, “a de preponderance of notes,1 оf Dr. quired production that counsel’s defi fendant need not show remained that the informa- possibility than performance likely more cient tion contained in the notes could come of the trial.” Fisher altered the outcome had Lo- light through cross-examination Gibson, 282 F.3d Cir. testify. Dr. Walker to zow called added) 2002) omit (emphasis (quotation Nevertheless, legitimate Lo- however ted). putting fear of Dr. Walker on the zow’s been, made may stand Lozow no with attempt up whatsoever to follow deficient-per first We address Bernhard, had who concluded that prong of Colo formance Strickland. suffering from “severe emo- Appeals rado Court of denied McLuckie’s problems” and have a “merito- tional post-conviction relief based on a motion for (1 R. rious mental-state defense.” Doc. preju conclusion that McLuckie was not 2.) Moreover, performance Lozow’s calls It did by performance. not diced Lozow’s question far more than a failure to call into perfor expressly determine Lozow’s particular attempt witnesses. Lozow’s adequate mance was under Strickland. by guilty enter of not reason Nevertheless, arguable it is that the Colo days suggests four before trial Appeals rado Court of did decide this clear, Lozow, it that the that was even to light its question determination case called for some kind of mental-state call Dr. Lozow’s decision largely and it was defense Lozow’s Thus, an appropriate tactical one. we investigate prepare initial failure to Ap assume that the Colorado Court ‍‌‌‌‌‌​​​‌‌‌​​​​​‌‌‌​​​​​​​‌​‌​​‌‌‌​‌​​​​​‌‌​‌‌​‌‍of that led to a situation where too late perfor determined Lozow’s peals on a mental-state put defense. constitutionally adequate mance was Morrison, 477 this determination Kimmelman v. consider See denying pre-trial hearing, post order 1. At the the trial In his written motions relief, however, ordering expressly Bayless indicated that it was Judge conviction production reports, of test results suggest if Dr. Walker seems had later, precluding production of notes. Years required, all turned over the documents 35(c) hearing, judge at the Rule the same prosecutor would have discovered a written presided at trial concluded based on indicating statement in Dr. Walker's notes pre-trial ruling, "[Dr. Walker’s] the court's killing. that McLuckie had (3:2 notes would not have been turned over.” state, 106 S.Ct. L.Ed.2d client’s mental let alone failure to (“Because testing [the adversarial] assert a mental-state defense at falls process generally proper will function well an below standard of reason- some ly unless defense counsel has done Seidel, ableness. See 146 F.3d at 755-56 investigation prosecution’s into the case (noting duty counsel has' to make into strategies, [the various defense adequate investigations into a mental-state Supreme has] noted that counsel defense where there signs are abundant a duty investiga has to make reasonable illness). that a client suffers from mental tions or to make a reasonable decision that In a case where there was no issue particular investigations makes unneces beyond state, that of McLuckie’s mental omitted)); sary.” (quotation Battenfield performance Lozow’s deprived her of any Gibson, Cir. F.3d 1228-29 of convincing chance that she did 2001) (holding that defense fail counsel’s the requisite mental state for a strat investigate resulting ure rendered first-degree murder agree conviction. We Merkle, unreasonable); Seidel v. egy with the district court that Lozow’s perfor- (9th Cir.1998) (indicating clearly fell mance short of the constitution- where counsel has actual or construc al minimum under Strickland. To the ex- problems, tive notice of a client’s mental he duty investigation has to conduct an tent that the Colorado Court Appeals order be able make an informed the contrary, held to that conclusion was regarding possibility decision of a men unreasonable of Strickland defense). tal-state Lozow certainly to the facts of this case.

actual and constructive notice of his problems. by

client’s mental B time Lozow that a realized mental-state next address was appropriate, his erratic and prong of Strickland. The Colorado Court prepare only days belated efforts to before of Appeals concluded that McLuckie was little, trial were too too late. not prejudiced performance Lozow’s record, After careful we within the meaning of Strickland. Be difficulty agreeing have little dis- with the is an cause this issue the Colorado Court performance trict court that fell Lozow’s adjudicated, of Appeals we must determine objective an below standard of reasonable- the Colorado courts made an ob ness. record reflects a lack complete jectively unreasonable of the preparation investigation, resulting of and prejudice prong of Strickland to the facts in a clearly defense that was inconsistent of eаse. this case, with the facts of and investi- the little At the heart of the Colorado Court of gation even pre- for the defense that was Appeals’ conclusion McLuckie that suf- noted, the sented. As facts of prejudice fered no from Lozow’s failure to undisputed, only the case were and the put Dr. Walker on the stand Lozow’s question to be at trial resolved was wheth- 35(c) at testimony hearing, the Rule at McLuckie be er would convicted of first- which he claimed that did not call he Dr. murder, murder, degree second-degree or allegedly Walker because Walker manslaughter. circumstances, Given these indicating notes that McLuckie had considering bizarre disturbing the and planned the in in killing the manner which case, of nature the as well as indications it out. eventually People was carried from two that psychological experts McLuckie, 95CA2212, slip No. op. from at 8-9 suffered severe mental 1998). problems, timely investigate (Colo.Ct.App. failure to Jan. This event, Dr. court, any it In Walker ob- impossi- abusers. makes the state reasoned does not demonstrate that serves that this there is reasonable “conclude that ble to planned killing the because the of the ex- McLuckie presentation that probability hоmi- not- feature the the use changed poison testimony would pert’s Id. 11. cide. case.”2 the outcome of testimony could have been suggests record that

Our For'example, to the the repercussions helpful of call- defense. negative possible the testify presented evidence McLucMe’s primary are less clear- ing Dr. Walker own were her trial ren- Dr. Walker’s notes if Even cut.3 credibility dering her a central issue. they did contain informa- introduced the state attacked closing argument, to its suggesting credibility the murder, grounds later ex- McLuckie’s commit loss, inconsistency memory arguing any infor- court the district plained to case,” is crucial this change “credibility did not dated June Walker v. re Walk- district court. Mather argues Cir.1992). affi- er), The state that this district court. 896 Ac- 959 F.2d be it was davit should not considered because question cordingly, we do not address the court. Rule 7 of the not before the state should have held an whether the district court Governing gives § dis- 2254 Cases Rules and, hearing evidentiary like the district determining trict court discretion court, the affidavit. are consider expansion ‍‌‌‌‌‌​​​‌‌‌​​​​​‌‌‌​​​​​​​‌​‌​​‌‌‌​‌​​​​​‌‌​‌‌​‌‍Rules record. See allow issue is of credi- mindful that one "[w]hen Cases, (stating 7 that Governing § 2254 Rule bility, can on the basis affidavits resolution may and be submitted considered "[a]ffidavits conclusive, say rarely be but that is not to record”). part In Williamson Governing they may helpful.” not be Rules Ward, (10th Cir.1997) 110 F.3d 1513 Cases, 7, Advisory Rule Committee noting analysis (pre-AEDPA, and States, (quoting Raines v. United recommended further evaluation. Howev- Spouse Syndrome to describe the defen- er, situation, presentation dant’s the results Dr. examina- psychiatric Bernhard’s Walker, who, strong evidence could have had a given influence tion were to Dr. after recognized average 4. This beyond experience court has that testi- a situation ” mony Syn- in the area of understanding. Battered Woman v. common Dunn Rob erts, (10th "necessаry interpret drome is often for the Cir. evaluation, amined was able state that unable further conducting any insanity met standards of either or McLuckie suffered the state that defect, predicate for a or capacity mental under Colora- mental disease diminished capacity. Like mental say of diminished too much to that simply do it is Gutterman, Dr. Bern- Dr. Walker of Appeals’ the Colorado Court determina- met conclude not hard prong that the second of Strickland Thus, in Colorado. standards the “objectively is unreasonable.” met Dr. Bernhard’s clear it far from is AED- therefore conclude any have mаde difference testimony would PA, has not demonstrated that trial. at grant the relief that empowered we are investigation she seeks. that

Given defense, fol- a mental-state preparation of of mental- presentation the

lowed IV proyided could have- state explanation for an alternative jury with the reasons, foregoing judgment For the actions, have concerns we McLuckie’s denying of the habeas relief district court effects of trial counsel’s negative about Appellant’s motion to is AFFIRMED. outcome of the case. performance on the appeal grant- is suрplement record on to conclude that we even were ed. factors is “sufficient to weight of these outcome,” in the confidence Os- undermine HARTZ, Judge, concurring: Circuit Shillinger, 861 F.2d v. born Cir.1988), the writ sim- we issue result and concur I concur indepen- our ply because conclude join except por- that I opinion do applied judgment dent state opinion relating to the first tion of the incorrectly. erroneously federal law test. prong the Strickland Given Williams, S.Ct. 1495. 529 U.S. it is prong, we affirm on second unnec- Rather, we must be convinced essary for us to address whether Ms. “objectively also unreason- application was attorney provided McLuckie’s effective as- Id, able.,”5 120 S.Ct. 1495. To sistance. judgment own “substitute[ ][our]

of the state court” would be contravene statutory mandate.

AEDPA’s Woodford Visciotti, ‍‌‌‌‌‌​​​‌‌‌​​​​​‌‌‌​​​​​​​‌​‌​​‌‌‌​‌​​​​​‌‌​‌‌​‌‍123 S.Ct. (2002). L.Ed.2d 279

Recognizing ambiguities surround- including

ing evidence, state- beyond

lack of McLuckie’s support to Dr. a Bat-

ments defense, and

tered-Woman-Syndrome expert who

fact that no mental-health ex- Williams, Supreme Notably, Supreme "objec- erence. 5. The Court has not defined rejected any preci- unequivocally tively degree of several circuits’ unreasonable” with interpretation phrase as "objectively clear un- limited sion. While something apply beyond federal law "in indicates court decisions reasonable” jurists would all reasonable erroneous or incorrect of Strick- manner land, аgree require abject is unreasonable.” the standard does not def- information” notes inevitably produced he feared would be A were pathologist testified there should he call as a witness. approximately forty-nine stab wounds 140.) “devastating information” The head, back, neck, Vigil’s that a stom alleged by of statement written consist post-mortem, and ach wound was inflicted McLuckie kill that she the vic- Vigil had bled death. Lozow way tim in the she Dr. Although did. prior to pathologist not interviewed the day Walker testified on the first police trial. Two officers testified hearing, two-day evidentiary they any injuries, did not observe scratch day on the present second when Lozow es, or bruises on McLuckie when she was testified, and was unable to rebut this deliberation, placed under arrest. After statement. in an later affidavit first-degree a verdict of returned submitted to the federal district court in a corpse. McLuckie murder and abuse peti- connection with McLuckie’s habeas life imprisonment was sentenced to tion, explained by “devas- 9, Walker Ap June Colorado Court of information,” tating Lozow have conviction; peals affirmed one dissen referring to a note in Dr. Walker’s files ter for a trial would remanded murder, indicating that months before the insanity, concluding issue of that the trial done some research court should accepted of not library on toxic id. Doe. substances. guilty by insanity that ten reason of According Ex. C days four trial. People dered before McLuckie, nothing-about planning note contained 89CA1195,slip op. No. at 13-14 event, and, any murder the eventual 12, 1991). (Colo.Ct.App. Dec. nothing poisonous homicide had to do with September rep- McLuckie was substances. new by post- resented counsel her state The trial court denied McLuckie’s Rule proceedings brought pursuant conviction 35(c) motion, Colorado Court of Colorado Rule Criminal Procedure 35(c). affirmed, holding that if ... two-day evidentiary Appeals “even hearing was attorney presented judge pre- held before the effective would have same who had hearing, [Dr. Walker’s] at trial. At the we cannot public sided initially proba- defenders worked conclude that there is a reasonable who had on the bility People v. novo and if findings any, of a different result.” its 95CA2212, slip op. Gibson, at 11 No. clear error.” LaFevers v. (Colo.Ct.App. Cir.1999) The court Jan. (interpreting possibility potentially reasoned that the 2254(d)). § petitioner’s If a claims were devastating coming light information if adjudicated by on their merits testify preclud- called to Walker were courts, be she will entitled to federal habe- aed determination that Lozow’s failure to only as relief if she can establish that the call Dr. resulted in prejudice. Id. to, state court contrary decision “was by 11. Certiorari was denied of, involved an unreasonable application Court, Supreme with Justice clearly established Federal as deter- dissenting, Bender who noted that he mined Supreme United would grant certiorari as to whether “de- States,” 2254(d)(1), 28 U.S.C. or “was haphazard fense indolent counsel’s based on an unreasonable determination of representation fell well below constitution- the facts in light presented the evidence al standards of assistance of coun- effective proceeding,” the State id. 98SC167, sel.” v. People, No. 2254(d)(2). reviewing When a state

Notes

notes in her mation 1312), telling jury pre- Supp. and that of the case opinion claim a lack conveniently In her jury. “people pared explain believed,” memory are not to be affidavit, explained Dr. Walker testimony could have poi- Dr. Walker’s the use had researched explain gaps and incon- help useful library months before sons some story to the murdеr, sistencies McLuckie’s that it normal for bat- typical people suffering contemplate killing being their as tered women Parke, evidentiary hearing. Boyko v. preju- an But see Although referred the Strickland Cir.2001) language (holding in shorthand in dice standard above, Appeals quoted Colorado expansion of the record is used to "[w]hen probability” to defined "reasonable earlier evidentiary end an hear- achieve same of a probability different outcome mean "the ing, petitioner ought subject to to be confidence in ... sufficient undermine imposed be same constraints would if he Peoрle v. outcome of trial.” sought evidentiary hearing”). 95CA2212, (Colo.Ct.App. slip op. at Jan. No. objection to note that the state made no Thus, 22, 1998). state court identified affidavit, district court's consideration this Strick- standard it, below, attempt or to rebut the nor did here land. testimony argue contained in the affidavit necessary evidentiary hearing was that an be- noted, the the district court 3. As court could it. As a fore the district consider Appeals' conclusion was consistent Court of rule, 35(c) general is- this will consider testimony at the Rule with Lozow’s appeal hearing, sues that were not raised but not consistent with Dr. Walker’s affidavit, (In submitted to the

Notes standards), be both result would same under (4th Cir.1970) (discussing 529-30 improper for we held it was not a district record)). expansion of the affidavits in consider uncontroverted holding proceeding without a 2254 habeas verdict). Syndrome and Post- jury’s Battered Woman the claim Disorder, and Traumatic Stress would that there predicate was no evidence to degree helped have show proper form a foundation for a Battered- fear was In McLuckie’s reasonable. addi- Woman-Syndrome defense more trou- tion, dur- made prosecution references bling. certainly While trial courts ing the trial McLuckiе’s communications broad prohibit discretion to admit or ex- fur- expert, possibly with mental-health pert witness foundational evi- calling credibility question, ther into determining dence is a factor in admissibil- jury but the was never able to hear People, See Lanari v. ity. 827 P.2d ex- expert mental-health who could have (Colo.1992) (en banc) (explaining that, plained the nature of those communica- exercising its discretion under findings. resultant tions and Rule of Evidence admit-or prohibit response, argues that even testimony by expert witnesses criminal if Dr. testimony had offered cases, consider, the trial court should inter trial, Syndrome Bаttered Woman it is alia, “the. sufficiency and extent of the unlikely changed it would have foundational- upon evidence which the ex- (1) Syn- result because: Battered Woman pert witness’ ultimate conclusion is to be drome an established defense based”). far indicates, So as the record (2) time; Colorado at the there nowas the only evidence of McLuckie’s Battered predicate proper evidence form a foun- Syndrome Woman was Dr. Walker’s testi- Syndrome dation for Battered Woman mony based on her interviews with (police reports, defense documented histo- McLuckie. McLuckie argued has not abuse, etc.), ry rendering Dr. Walker’s evidence, such not, has exists. She potentially testimony inadmissible. As- example, argued that Vig- evidence of suming expert in Battered Woman il’s abuse would have been discovered had can Syndrome jury’s be essential un- Lozow conducted proper investigation. derstanding of the testimony,4 defendant’s Thus, Dr. testimony might alone that, argues the state nevertheless in the persuaded not have that McLuck- case, testimony instant the lack of such ie Vigil, had been abused no prejudice. resulted in been admissible without foun- As to the claim that a Battered-Woman- dation. Syndrome nоt generally defense was ac- argues that we should not cepted in Colorado until after the time of limit our possible to the McLuckie’s even without termi- such Syndrome effects Battered Woman nology situation, to describe McLuckie’s testimony Dr. Walker’s on the outcome of presentation of the psychological evidence Bernhard, the trial. She notes that regarding prob- McLuckie’s severe mental (1) the first to examine might lems a significant have had influence found symptoms more severe than did Dr. Turner, verdict. See jury’s on the ’(2) suggested an impaired mental- F.3d at (explaining even in the warranted, condition terminology absence of such as Battered

Case Details

Case Name: McLuckie v. Abbott

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 30, 2003

Citation: 337 F.3d 1193

Docket Number: 02-1017

Court Abbreviation: 10th Cir.