Crawford v. Epps, et al
Filing
112
MEMORANDUM OPINION re 111 Judgment. Signed by District Judge Sharion Aycock on 8/29/2012. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CHARLES RAY “CHUCK” CRAWFORD
PETITIONER
VS.
CIVIL ACTION NO.: 3:04CV59-SA
CHRISTOPHER B. EPPS, ET AL.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on remand from the Fifth Circuit Court of Appeals for
further consideration of whether Petitioner was denied his Sixth Amendment right to the
assistance of counsel when he was ordered to submit to a psychiatric examination that was later
used to discredit his insanity defense at his capital murder trial. Crawford v. Epps, 353 F. App’x
977, 983-84, 2009 WL 4324990 at *6 (5th Cir. 2009). This Court initially ordered an evidentiary
hearing and allowed the parties to supplement the record with evidence not presented to the
Mississippi Supreme Court at the time it adjudicated Petitioner’s claim. Having reviewed all of
the evidence submitted in this matter, the Court finds that a live evidentiary hearing is
unnecessary and concludes that Petitioner is not entitled to habeas relief, for the reasons that
follow.
Facts and Procedural History
Kristy Ray was abducted from her parents’ home on January 29, 1993. On the day Ray was
reported missing, Petitioner’s family members found a ransom note in their attic and contacted
William R. Fortier, an attorney Petitioner retained to represent him on unrelated charges of
aggravated assault and rape. Petitioner was scheduled to stand trial on the unrelated charges on
1
February 2, 1993, in the Circuit Court of Tippah County, Mississippi, with Judge R. Kenneth
Coleman presiding. Petitioner had filed a notice of his intent to pursue an insanity defense in
those cases, and he submitted to a psychiatric examination at the Mississippi State Hospital on
December 23, 1992, just thirty-seven days prior to Ray’s abduction. The December evaluation
was conducted by clinical psychologist, Dr. Criss Lott, and psychiatrist, Dr. Reb McMichael.
(See Trial Tr. vol. 10, 1013-14). Following the examination, the doctors concluded that
Petitioner was malingering memory deficits, knew right from wrong at the time of the crimes,
and was competent to stand trial. (See Addendum to Pet. Brief Ex. 12).1
Petitioner was out on bond from the aggravated assault and rape charges at the time of
Ray’s disappearance. After receiving the ransom note and becoming fearful of what Petitioner
might do, Fortier contacted law enforcement officials. Petitioner was located and arrested on
January 30, 1993, which was a Saturday. Prior to questioning by law enforcement, Petitioner
waived his right to counsel. He subsequently confessed involvement in Ray’s disappearance and
led law enforcement officers to her body. He gave additional statements to law enforcement
officials on February 1 and February 2, 1993. Warrants issued for his arrest on capital murder
and related charges on Monday, February 1, 1993.
Because of his participation in the events leading to Petitioner’s arrest for Ray’s murder,
Fortier moved to withdraw as counsel in the aggravated assault and rape cases on February 1,
1
For purposes of clarity, the Court advises that the following abbreviations are used
throughout this opinion and order: “Pet. Memo,” docket entry no. 22, refers to Petitioner’s
original memorandum brief in support of his petition. “Pet. Brief,” docket entry no. 70, refers to
Petitioner’s brief in support of his arguments following remand. An addendum to the brief,
noted as “Addendum to Pet. Brief,” is found at docket entry no. 72. Petitioner also filed a
supplemental brief, “Pet. Supp. Brief,” which is docket entry no. 89, as supplemented in docket
entry no. 91.
2
1993. (See Pet. Supp. Brief Ex. A). He asserted that he was operating under a conflict of interest
and that there existed “no way that he c[ould] set aside his prejudiced feelings” and properly
represent Petitioner due to his belief that Petitioner’s involvement in Ray’s murder was “coldhearted, calculated, and premeditated.” (Id). Before the motion to withdraw was ruled upon,
however, Judge Coleman held a hearing on February 1, 1993, without Petitioner present.
At the hearing, the prosecution moved to have the court order another evaluation of
Petitioner’s sanity and competency in light of his arrest for Ray’s murder. Fortier joined the
motion. The trial court ordered the immediate examination of Petitioner by the Forensic Services
Unit of the Mississippi State Hospital in order to “proceed to trial” in the unrelated aggravated
assault and rape cases. (See Pet. Mem. Ex. E). The court ordered the examiners to produce a
report determining whether Petitioner was “sane and competent to stand trial.” (See Pet. Brief
Ex. 4). Fortier did not speak to Petitioner prior to the psychiatric evaluation. (See Pet. Supp.
Brief Ex. C).
The evaluation took place the following day, on February 2, 1993. It was conducted by
Drs. Lott and McMichael.2 Petitioner was scheduled to be arraigned on capital murder and
associated charges on February 3, 1993, in front of Judge Coleman. (See Pet. Mem. Ex. D). On
February 4, Fortier was allowed to withdraw his representation of Petitioner on the aggravated
assault and rape charges, and James Pannell was substituted as counsel. (Id.). Subsequently,
Pannell was also appointed as Petitioner’s defense counsel in the capital murder case. (See Trial
2
Drs. Lott and McMichael completed the examination and testified at a February 11
hearing in the aggravated assault and rape cases. (See Pet. Supp. Brief Ex. A, 69). Following the
hearing, the court entered an order finding Petitioner competent to stand trial on the charges of
aggravated assault and rape. (Id.).
3
Tr. vol. 8, 670). Although the exact timing of his appointment is unknown, the record clarifies
that Pannell, like Fortier, did not have any contact with Petitioner prior to the February 2
psychiatric examination. (See doc. entry no. 107, Aff. of James Pannell).
Little of record happened in Petitioner’s capital murder case until after both the
aggravated assault and rape cases went to trial. James Pannell served as Petitioner’s counsel in
both of the unrelated cases, and Judge Coleman presided over both trials. Petitioner stood trial
for the aggravated assault charge in May 1993. Petitioner presented an insanity defense in that
case, and the State offered the testimony of Drs. Lott and McMichael in rebuttal. See Crawford
v. State, 787 So. 2d 1236 (Miss. 2001). Petitioner was found guilty of aggravated assault and
sentenced to a term of imprisonment of twenty years. (Id. at 1238). After the assault trial ended,
Petitioner stood trial on the unrelated charges of rape and kidnapping in August 1993. Although
he was acquitted of kidnapping, he was sentenced to imprisonment for forty-six years on the
charge of rape, which was to run consecutive to his sentence for aggravated assault. (See Supp.
to Pet. for PCR Ex. 4, Aff. of James W. Pannell; see also SCR vol. 1, 13).
Petitioner was indicted for capital murder in September of 1993. (See SCP vol. 1, 11-13).
David Bell was appointed as co-counsel to assist Pannell. In January 1994, Petitioner filed a
notice to pursue an insanity defense to the capital murder and related charges. The capital
murder trial occurred in April 1994 and was also presided over by Judge Coleman. At trial,
Petitioner presented the testimony of Dr. Stanley Russell, a psychiatrist with the Mississippi
Department of Corrections, who testified that Petitioner suffered from depression and
psychogenic amnesia, a dissociative disorder characterized by long periods of time for which the
sufferer has no memory. (See Trial Tr. vol. 9, 822-26). Dr. Russell disagreed with the diagnosis
4
of Bipolar Disorder that Petitioner had been given during a prior hospitalization but otherwise
opined that Petitioner lacked criminal responsibility for his actions at the time of the murder.
(See id. at 827-31, 845). Petitioner’s family members also testified in his defense, and they all
stated that Petitioner had suffered mental illness almost all of his life. (See Trial Tr. vol. 9, 893900; Trial Tr. vol. 10, 901-997).
In rebuttal to Petitioner’s insanity defense, the State presented the testimony of
psychologist Dr. Criss Lott. At the time Dr. Lott testified at Petitioner’s capital murder trial, he
had evaluated Petitioner on four separate occasions in connection with the rape/assault and
capital murder charges against Petitioner. (See Trial Tr. vol. 10, 1002-14). Dr. Lott disagreed
with Dr. Russell’s diagnosis of psychogenic amnesia and opined that Petitioner’s recurring loss
of memory represented a “selective deficit” that appeared only during a criminal offense. (See id.
at 1013-16). Dr. Lott further offered an opinion that Petitioner’s behavior prior to, during, and
after the offense indicated premeditation, and that Petitioner did not suffer a mental illness, but
rather, a character pathology of antisocial, violent, aggressive, and potentially sexually predatory
behavior. (Id. at 1017, 1023, and Trial Tr. vol. 11, 1056). Psychiatrist Dr. Reb McMichael, the
director of the Forensic Sciences Unit at the Mississippi State Hospital, also testified in rebuttal
to the defense’s case-in-chief. Dr. McMichael also opined that Petitioner was malingering the
symptoms of psychogenic amnesia, and he agreed that Petitioner’s behaviors prior to and
following the crime suggested that Petitioner knew his behavior was wrong. (See Trial Tr. vol.
11, 1066-72). The closing arguments of both the defense and prosecution centered around
Petitioner’s alleged insanity. (See id. at 1177-1200; Trial Tr. vol. 12, 1201-06). Petitioner was
found guilty of capital murder.
5
At the sentencing phase of trial, defense counsel called nine family members to give
testimony and also offered the expert testimonies of Dr. Martin Webb and Dr. Stanley Russell.
(See Trial Tr. vol. 12, 1247-1305). Dr. Webb, a psychiatrist in private practice hired by
Petitioner’s family members approximately one year prior to trial, testified that he believed
Petitioner suffered from Bipolar Disorder and lacked criminal responsibility at the time of the
crime. (See id. at 1281-86). Dr. Russell testified that Petitioner was operating under extreme
duress and emotional disturbance at the time of the crime and lacked criminal responsibility for
it. (Id. at 1293-94).
The prosecution called Dr. McMichael to offer rebuttal testimony at sentencing. Dr.
McMichael opined that Petitioner suffered from no mental illness that would serve to reduce his
responsibility for the crimes committed, and he stated that the records made around the time of
the offense did not describe someone in a manic episode. (Id. at 1308-09). Following closing
arguments, Petitioner was convicted of all counts and sentenced to death.
The Mississippi Supreme Court affirmed the sentence and conviction on direct appeal on
March 12, 1998. See Crawford v. State, 716 So. 2d 1028 (Miss. 1998), cert. denied, 525 U.S.
1021 (1998). On post-conviction review, Petitioner argued that his court-ordered psychiatric
evaluation was an interrogation in violation of his right to counsel. The Mississippi Supreme
Court stated:
Crawford argues that he was entitled to counsel’s assistance in making his
decision as to whether or not to submit to testing and to what extent the tests
should be performed. However, the cases he cites involve situations whether
there either was no counsel at the time of the examination or counsel was given no
notice of the examination. Crawford alleges neither and it is apparent that
counsel, at the very least, had notice of the fact that the examination would take
place as he signed off on the examination order. Crawford does not argue that
6
counsel did not have notice of the examination or its scope, but simply that he did
not confer with counsel. Notwithstanding the lack of any supporting evidence,
Crawford’s claim appears better suited as one for ineffective assistance, for it is
clear that the State upheld its end of the bargain and his argument is without merit.
Crawford v. State, 867 So. 2d 196, 205 (2003). All of Petitioner’s claims raised in his postconviction application were denied on December 4, 2003. See Crawford v. State, 867 So. 2d 196
(Miss. 2003), cert. denied, 543 U.S. 866 (2004).
On federal habeas review, Petitioner argued that Fortier extended his representation of
Petitioner to the murder case by signing off on the circuit court’s order that he undergo a
psychiatric evaluation in the aggravated assault/rape cases. He alternatively argued that he was
entitled to the assistance of counsel before submitting to an evaluation that the State later used to
discredit his insanity defense. (Pet. Mem. 17-18). This Court denied Petitioner’s application for
a writ of habeas corpus under 28 U.S.C. § 2254 on September 25, 2008. Crawford v. Epps, 2008
WL 4419347 (N.D. Miss. Sept. 25, 2008). The Court denied Petitioner a Certificate of
Appealability [“COA”] on his Sixth Amendment claim, finding that the record made it clear that
the examination was ordered in a separate case and necessitated by Petitioner’s arrest for murder.
Crawford v. Epps, 2008 WL 5095993 at * 2 (N.D. Miss. November 25, 2008). Petitioner
appealed to the Fifth Circuit Court of Appeals seeking a COA on eighteen separate claims.
The Court of Appeals affirmed the dismissal of all of Petitioner’s claims except his claim
that his Sixth Amendment rights were violated by the trial court’s order that he be subjected to a
psychiatric evaluation without the benefit of counsel. Crawford v. Epps, 353 Fed.Appx. 977 (5th
Cir. 2009). In granting a COA on this claim, the Fifth Circuit noted that because Kristy Ray’s
murder had already been committed at the time the evaluation was ordered, it was foreseeable
7
that the results of the evaluation would be relevant to any future murder trial. See id. The Fifth
Circuit determined that “[t]he relevance of Fortier’s participation to Crawford’s Sixth
Amendment claim was not adequately briefed. Further, the effect of Crawford’s waiver of his
Sixth Amendment right to counsel, discussed supra, and whether that waiver would extend to
any decision to submit to a psychiatric evaluation were issues not adequately explored by the
briefs.” Id. at 984. The Court of Appeals vacated this Court’s decision as to Petitioner’s Sixth
Amendment claim and remanded the case for further consideration. Id. at 983-84.
Law and Analysis
The Court’s review of Petitioner’s claim is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed after the
statute’s effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the
grant of federal habeas relief on any claim adjudicated on the merits in state court unless that
adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established United States Supreme Court precedent; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the presented
evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In its post-conviction decision, the Mississippi Supreme Court stated that Petitioner did not
allege that he was without counsel or that counsel had no notice of the fact of the evaluation at
the time it was ordered. See Crawford v. State, 867 So. 2d. at 205. In his post-conviction
pleadings, however, Petitioner alleged that Fortier extended the scope of his representation of
Petitioner when he signed off on the February evaluation order, and that even if Fortier did not
extend his representation, Petitioner was entitled to the assistance of counsel because the
8
evaluation represented a “critical stage” of the capital murder prosecution. (See Petition for PostConviction Collateral Relief Incorporating Memorandum of Law ¶49, ¶52). It appears to the
Court that the State court misapprehended or disregarded the aspect of Petitioner’s claim that
asserted a right to the appointment of counsel due to the separate murder charge, and that the
court failed to adjudicate the claim as presented. Therefore, the statutory restrictions on factual
development that would otherwise be applicable, as well as the deferential lens through which
this Court would otherwise review Petitioner’s claim, do not apply to the instant inquiry. See,
e.g., Gonzalez v. Thaler, 643 F.3d 425, 429-30 (5th Cir. 2011); Carty v. Thaler, 583 F.3d 244,
253 (5th Cir. 2009) (holding that AEDPA deference does not apply if the state court is properly
presented a claim and does not adjudicate the particular claim on the merits); see also Cullen v.
Pinholster, 131 S. Ct. 1388, 1398-1401 (2011) (holding that “review under 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the merits”) (emphasis
added).
The Court is aware, however, that “adjudication on the merits” has been found to refer “to
whether a court’s disposition of the case was substantive as opposed to procedural.” Neal v.
Puckett, 286 F.3d 230, 235 (5th Cir. 2002). Therefore, the Court concludes that, to the extent
AEDPA standards are applicable to the rejection of Petitioner’s Sixth Amendment claims,
Petitioner has demonstrated by clear and convincing evidence that he did argue to the Mississippi
Supreme Court that he was without counsel during a “critical stage” at the time of the February
evaluation, thereby rebutting the finding that he made no such argument. See 28 U.S.C. §
2254(e)(1). Because this particular factual determination is critical to the complete resolution of
Petitioner’s Sixth Amendment claim, the Court concludes that the Mississippi Supreme Court’s
9
decision was “based on an unreasonable determination of the facts” in light of the presented
arguments, and it finds that AEDPA deference is not appropriate. See 28 U.S.C. § 2254(d)(2);
see also Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011) (finding § 2254(e)(1) to pertain to
particular factual issues while (d)(2) applies “to the state court’s decision as a whole”).
A review of all of the evidence adduced in this matter shows that, at the time the trial
court held a hearing on February 1 in the aggravated assault and rape cases, Petitioner was in
police custody, had confessed an involvement in Ray’s death, and warrants had issued against
him for that involvement. The evidence also shows that Petitioner was not present at the hearing
where the issue of a subsequent psychiatric examination was discussed, and it shows that Fortier
had already moved to withdraw his representation in the aggravated assault and rape cases at the
time the examination was ordered. (See Pet. Supp. Brief Ex. C, D). During the evaluation itself,
Petitioner stated that he was unrepresented on the capital murder charge that had been filed
against him, and he maintained that he could not afford to retain Fortier’s representation to
contest the charges. (See Pet. Brief Ex. 6).
The state sponsored psychiatric examination of a defendant represents a “critical stage” of
the proceedings against him or her, and defense counsel must be given prior notification of the
nature and scope of the examination and given an opportunity to consult with the defendant about
the uses to which the examination may be put. See Estelle v. Smith, 451 U.S. 454, 460-72
(1981); Buchanan v. Kentucky, 483 U.S. 402, 424-25 (1987); Satterwhite v. Texas, 486 U.S. 249,
251 (1988). This Sixth Amendment right to counsel, incorporated and applicable to the states
through the Fourteenth Amendment, guarantees that a criminal defendant has the opportunity to
make a considered judgment about whether to cooperate and waive his Fifth Amendment
10
privilege against self-incrimination during a psychiatric examination. Smith, 451 U.S. at 470-71.
Petitioner had not yet been indicted, arraigned, or appointed counsel in the capital murder
case at the time of the February 2 evaluation.3 However, on February 1, the trial judge, the
prosecutor, and Fortier were all aware that Petitioner intended to pursue an insanity defense to
the charges of aggravated assault and rape. Petitioner’s defense counsel on the unrelated charges,
Fortier, admitted prior to the February 1 hearing that there was “no way that he c[ould] set aside
his prejudiced feelings” and represent Petitioner due to his belief that Petitioner murdered Kristy
Ray while legally sane. (See Pet. Brief Ex. 8). The trial court was aware of Fortier’s conflict,
and Fortier admits that he had no contact with Petitioner between the time of his arrest for
murder and the February psychiatric examination, thereby rebutting any presumption that an
opportunity for consultation occurred between them. See Buchanan, 483 U.S. at 425 (finding the
right to counsel not violated where counsel joined in State’s motion to obtain evaluation and it
could be assumed counsel consulted with defendant). Therefore, Fortier’s representation of
Petitioner on the unrelated charges could not have served to adequately protect Petitioner’s rights
in the instant case.
Moreover, the Sixth Amendment right to counsel is offense specific. See Texas v. Cobb,
532 U.S. 162, 168 (2001). Because the February evaluation was only ordered in light of
3
See Smith, 451 U.S. at 469 (noting defendant had been indicted and appointed counsel
on the charge relevant to the examination); Powell, 492 U.S. 680 (1989) (finding Sixth
Amendment violation when psychiatric examination ordered on day of Powell’s arrest was
performed without notice to him or his attorney) and Powell v. State, 742 S.W.2d 353, 357
(Tex.Cr.App. 1987) (noting Powell was arraigned and appointed counsel on day of his arrest and
indicted before examination occurred); Satterwhite v. Texas, 486 U.S. 249, 254 (1988) (noting
defendant had been indicted, arraigned, and appointed counsel before relevant examination
occurred).
11
Petitioner’s arrest for capital murder, the Court finds that Petitioner was entitled to the
opportunity to consult with an attorney about the possible future uses of the results of the
examination. See, e.g., Smith, 451 U.S. at 471; Penry v. Johnson, 532 U.S. 782, 794 (2001)
(distinguishing a claim raised in the context of the Fifth Amendment from the holding in Smith,
in part, by noting that the defendant in Penry had not yet murdered the victim at the time of the
psychiatric evaluation); see also Crawford v. Epps, 2009 WL 4324990 at **5-6 (citing Penry and
noting that it was “foreseeable that [Petitioner’s] mental state could be placed at issue during any
ensuing capital murder trial”). Therefore, the Court concludes that the examination constituted a
“critical stage” in the capital murder case for Sixth Amendment purposes, and Petitioner was
entitled to “the guiding hand of counsel” before being compelled to submit to the February
psychiatric interview. Smith, 451 U.S. at 471.
Neither does the Court find it of constitutional significance to the issue before it that
Petitioner waived his right to counsel prior to cooperating with police questioning regarding
Kristy Ray’s murder. While Petitioner’s waiver of his Miranda rights prior to cooperating with
police served to waive his Sixth Amendment right to counsel during police questioning,4 the
Court finds that waiver insufficient to waive his right to consult with counsel prior to the
February psychiatric evaluation. In Powell v. Texas, 492 U.S. 680, 684-85 (1989), the Court
stated that “[n]o mention of waiver is contained in [Smith or Buchanan] discussing the Sixth
Amendment right. This is for good reason. While it may be unfair to the state to permit a
defendant to use psychiatric testimony without allowing the state a means to rebut that testimony,
4
See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786-87 (2009) (valid waiver of Miranda
rights also waives Sixth Amendment right to counsel).
12
it certainly is not unfair to require the state to provide counsel with notice[.]” Petitioner was not
present at the February 1 hearing where the examination was ordered. He was not notified of its
existence by Fortier, who had already moved to terminate his attorney-client relationship with
Petitioner. He was not appointed new counsel prior to the examination.
Undoubtedly, the trial judge had an obligation to satisfy any new doubts as to Petitioner’s
competency that were raised by Petitioner’s intervening criminal acts. See, e.g., Pate v.
Robinson, 383 U.S. 375, 385 (1966) (holding that trial court must order competency hearing
where information raises “a bona fide doubt” as to the defendant’s competency to stand trial).
However, with no attorney appointed to represent him on the capital murder charge and an
uncommunicative and admittedly conflicted counsel representing him on the aggravated assault
and rape charges, Petitioner was left without any legal advice as to whether he should submit to
the February psychiatric evaluation. Therefore, the Court finds that Petitioner had a right under
the Sixth Amendment to consult with counsel prior to the February 2 psychiatric evaluation, and
that he was denied that right.
Despite finding a constitutional violation in this case, however, the Court still must
consider whether the error was harmful. A constitutional error is harmless unless it has a
“substantial and injurious influence or effect” on the verdict. See Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (holding that harmless-error standard applies in determining whether
habeas relief is warranted because of constitutional error); Satterwhite v. Texas, 486 U.S. 249,
257 (1989); Vanderbilt v. Collins, 994 F.2d 189, 198-99 (5th Cir. 1993) (holding that Brecht
13
standard applies to Smith errors)5; see also Fry v. Pliler, 551 U.S. 112 (2007) (holding that
harmless error standard in Brecht v. Abrahamson, 507 U.S. 619 (1993) applies even in absence
of harmless error review).6
The Court is aware that it is the accused’s opportunity to consult with counsel, and not
the subsequent use of the evaluation, that is the concern of the Sixth Amendment. See, e.g.
Buchanan, 483 U.S. at 424-25 (holding that it is the “consultation with counsel” that is the
“proper concern of [the Sixth] Amendment”); Powell v. Texas, 492 U.S. 680, 685 and n.3 (1989).
A consideration of the Supreme Court precedent that guides the present inquiry, however,
demonstrates that circumstances surrounding the use of the results are relevant to a determination
of the prejudice caused by the violation. Upon the distinct facts of this case, the Court finds any
Sixth Amendment violation in this case harmless, for the following reasons.
First, psychiatric evidence was presented by the State only in rebuttal to Petitioner’s
insanity defense. No psychiatric evidence was offered against Petitioner during the State’s case-
5
Ordinarily, the complete absence of counsel at a “critical stage” would warrant a
presumption of prejudice under United States v. Cronic, 466 U.S. 648 (1984). In Satterwhite v.
Texas, 486 U.S. 249 (1988), the Court noted that when the prejudice from a Sixth Amendment
violation like that in Estelle v. Smith was “limited to the admission into evidence of [the mental
health] testimony,” a harmless error analysis applies. Satterwhite, 486 U.S. at 257. As the
alleged prejudice in this case stemmed only from the testimony of Drs. Lott and McMichael, and
the Court finds a harmless error standard appropriate under the facts of this case.
6
Petitioner maintains that the “mandate rule” prohibits this Court’s consideration of
harmless error because Respondents did not raise the issue on appeal. The mandate rule, “which
is but a specific application of the general doctrine of law of the case[,] . . . ‘provides that a lower
court on remand must implement both the letter and the spirit of the appellate court’s mandate
and may not disregard the explicit directives of that court.’” United States v. Matthews, 312 F.3d
652, 657 (5th Cir. 2002) (citation omitted). Because it is an applicable constitutional doctrine,
rather a mere argument raised by Respondents for the first time on remand, the Court finds
harmless error review appropriate in this case.
14
in-chief during either portion of the trial. While the assertion of an insanity defense does not
waive the Sixth Amendment right to notice to counsel, it does alert the defense that psychiatric
evidence may be presented in rebuttal. See, e.g., Buchanan, 483 U.S. at 424-25 (finding that
after Estelle v. Smith, the defense has to anticipate the use of psychological evidence in rebuttal if
a “mental status” defense is offered). It is also noteworthy that Drs. Lott and McMichael
conducted two additional mental status evaluations between the contested February evaluation
and Petitioner’s capital murder trial, and both of these evaluations occurred while James Pannell
was representing Petitioner. (See, e.g., Trial Tr. vol. 10, 1018-19). Drs. Lott and McMichael had
previously testified to rebut Petitioner’s insanity defense in his unrelated aggravated assault case,
thereby alerting Petitioner in advance not only of the fact, but also of the likely substance, of the
rebuttal testimony that could be offered against him at his capital murder trial if he pursued an
insanity defense.
Also, the Court finds it significant that the psychiatric examination in Petitioner’s case
did not result in psychiatric testimony on an issue for which the State bore the burden of proof.
Smith, Powell, and Satterwhite all involved the Texas death penalty scheme, which requires the
state to affirmatively prove a defendant’s future dangerousness before the death penalty may be
imposed. See Smith, 451 U.S. at 470-71; Powell, 492 U.S. at 681-82 & n.1; Satterwhite, 486
U.S. at 254; see also Rivera v. Collins, 934 F.2d 658, 662 (5th Cir. 1991). In Satterwhite, the
Court phrased Smith to hold that “defendants formally charged with capital crimes have a Sixth
Amendment right to consult with counsel before submitting to psychiatric evaluations designed
to determine their future dangerousness.” 486 U.S. at 251. In this case, Petitioner was examined
for competency and sanity in an unrelated case, and the expert testimony offered at trial went
15
only to rebut the testimony introduced by Petitioner.
In its opinion remanding this case, the Fifth Circuit cited Penry v. Johnson, 532 U.S. 782,
886-88 (2001), where the Supreme Court declined to grant habeas relief on a Fifth Amendment
challenge to the introduction of a prior psychiatric examination used in a defendant’s later capital
murder trial. The Supreme Court noted that the state did not have a duty to warn a defendant
about the possible future uses of the interview where use cannot be foreseen. Penry, 532 U.S. at
794. The Fifth Circuit here found Penry instructive because the Supreme Court noted that
Penry’s capital crime had not yet been committed when the earlier examination took place, while
Petitioner had already committed capital murder at the time of the February evaluation. The
Court notes that, unlike Penry, however, Petitioner was specifically warned prior to the February
evaluation that the report generated as a result of the examination would be disclosed, and he was
reminded “of his right not to say anything which might incriminate him in a court of law.” (Pet.
Brief Ex. 6, 2). While this determination does not negate the fact that Petitioner was not
appointed counsel in the capital murder charge to advise him prior to the evaluation, it does
speak to Petitioner’s awareness that he would give up certain rights by cooperating with the
examiners.
In light of the distinctions between Petitioner’s case and those cited above, the Court
finally considers the impact that the uncounseled examination had on Petitioner’s ability to
present a defense at trial. As an initial matter, the Court notes that the examiners had only
received “a very brief verbal description of the new crime” and were not in possession of any of
statements from Petitioner or law enforcement personnel with regard to the murder at the time of
the February evaluation. (See Pet. Mem. Ex. F). During the evaluation itself, the examiners were
16
able to conclude that Petitioner “was able to describe his mental state and almost all of the facts
occurring at the time of his most recent alleged offenses.” (Pet. Brief Ex. 6). They noted that
during the interview, Petitioner did not recount details of his activities around the time Kristy
Ray was murdered but reported memory deficits “for brief periods of time when he is alleged to
have first apprehended the victim and when he is alleged to have killed her.” (Id.). At trial, Dr.
Lott testified that on February 2, 1993, Petitioner “detail[ed] the events of the day and of his
behavior up to a point and then . . . [had] a brief lapse of memory.” (Trial Tr. vol. 10, 1015-16).
The only mental health evidence offered by the State in rebuttal at sentencing was that of Dr.
McMichael, who testified that Petitioner was not in a manic state at the time of the February
evaluation, and that he should have been if he had been in such a state at the time of Ray’s
murder. (See Trial Tr. vol. 12, 1308). The examiners could not have made these findings if the
February examination had not occurred, and Petitioner urges the Court to find error based on the
fact that these findings were made almost contemporaneously with the crime.
However, Petitioner’s argument omits the record evidence that independently supports the
conclusions Drs. Lott and McMichael testified to at trial. See, e.g., Murray v. United States, 487
U.S. 533, 537 (1988) (holding evidence illegally obtained admissible if it has an “independent
source”); see also Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 1845 (2009) (noting that
evidence obtained in violation of the Sixth Amendment is not per se inadmissible but is
subjected to “an exclusionary-rule balancing test”). Upon review of the record as a whole, the
Court is of the opinion that there was an abundance of evidence available to the examiners that
influenced the opinions they formed as to Petitioner’s mental status, and that their conclusions
would have been essentially the same even if the information they learned as a result of the
17
February evaluation was altogether omitted.
As previously noted, Petitioner was examined by Drs. Lott and McMichael four times
between December 1992 and the capital murder trial at issue. (Trial Tr. vol. 10, 1012-14, 102627). Petitioner’s December evaluation in the aggravated assault case was conducted with the
approval and knowledge of counsel, and an insanity defense had been raised in that case. After
the February interview, and prior to the capital murder trial in this case, two additional
psychiatric evaluations of Petitioner were conducted by the same doctors who would later testify
at Petitioner’s capital murder trial. (Trial Tr. vol. 10, 1018-19). There is no challenge raised to
the fact or scope of these other three examinations, nor is there a challenge implied to the
information learned as a result of them. Moreover, the clinical opinions reached as a result of the
February interview are essentially the same as those reported in December, as the doctors “again”
provisionally diagnosed Petitioner with malingering and Personality Disorder, Not Otherwise
Specified, with Antisocial, Explosive, and Dependent Features. (See Pet. Mem. Ex. 6;
Addendum to Pet. Brief Ex. 12).
The expert testimony offered at Petitioner’s capital murder trial contained a wealth of
information considered outside of the February interview, and much of it included the experts’
responses to the testimony given by others at trial. Dr. Lott’s testimony makes it apparent that he
considered the testimony of Dr. Russell, the records of other experts and the East Mississippi
State Hospital, the testimony of the lay witnesses who testified at trial, and his own evaluations
of Petitioner in reaching his clinical opinions. (See Trial Tr. vol. 10, 1003-29). Particularly, Dr.
Lott found the FBI’s investigatory report “extremely important” to his diagnosis and trial
testimony. (Id. at 1060). Dr. Lott was not aware of the details of the crime at the time of the
18
February evaluation, and he testified that his diagnostic impression of Petitioner had developed
over the course of a year and half since his arrest and the capital murder trial. (Id. at 1029).
Similarly, Dr. McMichael’s clinical opinion was influenced by information obtained from
numerous sources, and he, too, found the FBI report to be very important to an evaluation of
Petitioner’s awareness of his conduct. (See Trial Tr. vol. 11, 1065-72). The majority of Dr.
McMichael’s testimony in rebuttal at sentencing was responsive to the testimony given by Drs.
Russell and Webb. (See Trial Tr. vol. 12, 1307-10).
The Court also finds that Petitioner’s history of feigning memory problems is contained in
his medical records, and the expert testimony offered by the experts in this case contains
opinions partially formed upon their review of police reports, their consideration of the trial
testimony, and Petitioner’s family history, none of which are related to the February evaluation.
The uncontested psychiatric evaluations, the expert opinions as to Petitioner’s premeditation on
the basis of the evidence, and the expert opinions as to the credibility of Petitioner’s experts were
all admissible in this case, notwithstanding the February 2 interview.
Under these distinct facts, the Court concludes that any Sixth Amendment violation that
occurred as a result of the State’s failure to appoint counsel in the capital murder case to advise
Petitioner prior to the February 2 examination did not have “a substantial and injurious influence
or effect” on the verdict in this case. See Brecht, 507 U.S. at 637. Therefore, the Court finds that
any error resulting from the February 2 psychiatric evaluation is harmless.
Certificate of Appealability
Petitioner must obtain a certificate of appealability (“COA”) before appealing this Court’s
decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless
19
Petitioner makes “a substantial showing of the denial of a constitutional right” of any claim
rejected on its merits, which Petitioner may do by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, the Court
grants Petitioner a COA on his Sixth Amendment claim.
Conclusion
Having found that Petitioner’s Sixth Amendment claim does not warrant habeas relief, it is
hereby ordered that the instant petition for a writ of habeas corpus be DENIED and
DISMISSED WITH PREJUDICE. A certificate of appealability is GRANTED. All pending
motions are dismissed as moot. A judgment in accordance with this opinion and order will issue
this day.
THIS the 29th day of August, 2012.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?