Circuit panel grants one, tosses another habeas petition by convicted murderer

A convicted murderer who was sentenced to death in two Southern California counties had one of his bids for habeas corpus relief granted and another tossed by a 9th Circuit Court of Appeals panel in two cases in which he contested the validity of evidence that led to his convictions.

Martin James Kipp's argument that his Orange County conviction was a result of erroneous evidence admitted at trial was found compelling by a split three-judge panel Wednesday. However, the panel disagreed with similar claims contesting the validity of his Los Angeles County conviction in a separate unanimous opinion. Kipp v. Davis, 2020 DJDAR 9002 (9th Cir. Aug. 19, 2020); Kipp v. Davis, 2020 DJDAR 9017 (9th Cir. Aug. 19, 2020).

In 1987, Kipp was sentenced to death for the first-degree murder and attempted rape of Antaya Yvette Howard, 19, in Huntington Beach. While he stood trial in that case, prosecutors were building their case against him for the murder and rape of Tiffany Frizzell, 18, in Long Beach. The murders occurred three months apart in 1983, and Kipp was the main suspect in both.

A month before trial in the Howard case, prosecutors moved to admit evidence from the Frizzell murder to show a distinctive pattern of the two crimes. The late Orange County Superior Court Judge Donald A. McCartin permitted the motion and instructed the jury it could consider the evidence, despite opposition from the defense, which argued that such a permission would be "so actually prejudicial that the case will be all over for Mr. Kipp if it comes to trial," court records show.

Records also show prosecutors had argued the Frizzell evidence, particularly the victim's age, cause of death and the manner in which her body was found, was permissible because "the Howard murder bears the same signature as the Frizzell murder."

The Frizzell evidence took up almost two days of the four-day trial, according to court records. Of the 32 witnesses who testified, 15 were related to the Frizzell case, including her mother.

"Kipp was, effectively, on trial for the rape-murders of two young women but could only defend himself against one," wrote Circuit Judge Richard A. Paez in a 49-page opinion issued Wednesday reversing a district court's denial of Kipp's petition for a writ of habeas corpus in the case. "Without the Frizzell evidence, the prosecution's case was entirely circumstantial."

After three days of deliberation, the jury found him guilty of first-degree murder and attempted rape and sentenced him to death.

Paez wrote that Kipp was deprived a fair trial and that the California Supreme Court's decision finding no due process violations on direct appeal ignored evidence supporting Kipp's claim that the crimes were too dissimilar to support an inference that he committed both.

"In light of this factual record, we are satisfied that any appellate court would find it difficult to conclude that the similarities between the Howard and Frizzell crimes are highly unique, unless it completely disregards the differences as the California Supreme Court did here," Paez wrote.

Judge Jacqueline H. Nguyen, in a nine-page dissent, wrote that even if the high court's determination to affirm the admission of the Frizzell evidence was unreasonable, there is no evidence to show Kipp suffered prejudice from it.

"The evidence that Kipp murdered Howard was compelling, even setting aside the Frizzell evidence," Nguyen wrote. "Kipp concocted an elaborate false narrative that distanced him from every detail that would have incriminated him."

Kipp's petition for a writ of habeas corpus in the Howard case was remanded to U.S. District Judge Andre Birotte Jr. of the Central District of California.

Kipp made similar claims in appealing his death sentence for the first-degree murder, forcible rape and robbery of Frizzell, despite a jury having found overwhelming DNA evidence to convict him of the crime. He wasn't successful with those arguments.

In a separate unanimous opinion Wednesday, the three-judge panel affirmed the sentence, finding invalid his arguments that the trial court's admission of his references to Satan in personal letters about the 1983 murder violated his First Amendment rights. The panel also tossed the argument that Kipp's Sixth Amendment right to effective counsel was violated.

While in jail in September 1987 in connection to the two murders, Kipp wrote two letters to his wife that were filled with references to Satan and details of the crimes. The letters, which also threatened the lives of prosecutors and sheriffs' deputies, were presented to jurors by the prosecution as a "significant piece of circumstantial evidence" that undermined Kipp's claim of remorse, records show.

Kipp cited a U.S. Supreme Court case to argue the admission of his references to Satan at trial was unconstitutional because they were only admitted to show his beliefs were morally reprehensible but could not tie him to the crime. Dawson v. Delaware, 503 U.S. 159 (1992).

In Dawson, the prosecution introduced evidence at sentencing of a petitioner's affiliation with the Aryan Brotherhood, as well as evidence suggesting he believed in Satan. The court held that the evidence was inadmissible because it was not tied in any way to the murder.

In upholding the sentence, the panel concluded that "even assuming the state's admission of Kipp's references to Satan violated his First Amendment rights," the errors didn't have a substantial and injurious influence on the jury. The panel further held that he couldn't have suffered from ineffective assistance of counsel because the Dawson ruling had not yet been issued.

"The evidence of Kipp's violence against women was devastating," Nguyen wrote in the unanimous opinion. "Kipp twice tried to escape from jail, showed an utter lack of remorse, and threatened to commit violence atrocities again in the future.".