Brewer v. Reynolds, 94-5072

• Decision Date: 05 April 1995
• Docket Number: No. 94-5072,94-5072
• Citation: 51 F.3d 1519
• Parties: Benjamin BREWER, Plaintiff-Appellant, v. Dan REYNOLDS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1519

51 F.3d 1519

Benjamin BREWER, Plaintiff-Appellant, v. Dan REYNOLDS, Defendant-Appellee.

No. 94-5072.

United States Court of Appeals, Tenth Circuit.

April 5, 1995.

Benjamin Lee McCullar, Oklahoma Indigent Defense System, Norman, OK, for plaintiff-appellant.

A. Diane Blalock, Asst. Atty. Gen. (Susan Brimer Loving, former Atty. Gen. and W.A. Drew Edmondson, Atty. Gen., with her on the briefs), Oklahoma City, OK, for defendant-appellee.

Before ANDERSON, TACHA and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In 1983, an Oklahoma jury convicted Benjamin Brewer of first degree murder and sentenced him to death. After unsuccessfully pursuing a direct appeal of his conviction and post-conviction relief in the Oklahoma state courts, Mr. Brewer filed this, his first federal petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. In his petition, Mr. Brewer raised thirty-six claims. The district court denied the petition, but issued a certificate of probable cause.

In this appeal, Mr. Brewer's only challenge is to the district court's denial of two of his claims. First, he contends the district court erred in ruling that he received effective assistance from his trial counsel during the penalty phase of his trial. Specifically, he claims his counsel was ineffective for failing to introduce mitigation evidence relating to his mental condition and for failing to call his mother as a mitigation witness. Second, Mr. Brewer contends that the district court erred in concluding that he did not have a constitutional right to the appointment of a mental health expert to assist in the penalty phase of his trial. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

On August 17, 1978, the semi-nude body of Karen Joyce Stapleton was discovered in her Tulsa apartment. She had been stabbed twenty-one times. Mr. Brewer confessed to the crime and physical evidence introduced at trial corroborated that confession.

In 1979, Mr. Brewer was tried in the Tulsa County District Court on a charge of first degree murder. He raised the defense of insanity, relying on the expert testimony of Dr. Anthony C. Gagliano, a private osteopath specializing in psychiatry. Mr. Brewer was represented at trial by Frank McCarthy of the Tulsa County Public Defender's Office. The jury found Mr. Brewer guilty of first degree murder and, in the bifurcated penalty phase, recommended the death penalty. Finding prosecutorial misconduct during the trial, the Oklahoma Court of Criminal Appeals reversed the conviction. Brewer v. State, 650 P.2d 54 (Okla.Crim.App.1982).

Mr. Brewer was retried in 1983, again raising the defense of insanity. In the second trial, he was represented by Mr. McCarthy with the assistance of Thomas Burns, another attorney in the Tulsa County Public Defender's Office.

In support of his insanity defense, Mr. Brewer again introduced the expert testimony of Dr. Gagliano. Dr. Gagliano did not conduct any psychological testing on Mr. Brewer. Rather, he based his findings on his review of Mr. Brewer's mental health records, a discussion with one of the mental health experts who previously had examined Mr. Brewer, an interview with Mr. Brewer's mother and written materials received from her, and interviews with Mr. Brewer.

Dr. Gagliano testified that, although Mr. Brewer was not psychotic, he suffered from a personality disorder. R.Supp.Vol. III at 921.

Dr. Gagliano further testified that he found no insanity or thought disorder either prior to or after the homicide, but that the "bizarreness and insaneness of the crime" represented a thought disorder at the time of the act. R.Supp.Vol. III at 920; R.Vol. I, Doc. 52 at 5.

As to the legal defense of insanity, Dr. Gagliano testified that at the time he committed the murder Mr. Brewer was insane; that is, he neither knew the difference between right and wrong, nor could he appreciate the consequences of his actions. R.Supp.Vol. III at 925. ¹

The jury rejected Mr. Brewer's insanity defense and returned a guilty verdict on the first degree murder charge. In the penalty phase of the trial, ² the State alleged the following aggravating factors: (1) that Mr. Brewer previously had been convicted of a felony involving the use or threat of violence to the person; ³ and (2) that the murder was especially heinous, atrocious, or cruel. ⁴ The State introduced by motion the guilt/innocence phase prosecution evidence. Additionally, in support of the prior violent felony aggravator, the State introduced the judgment and sentence of the 1977 rape conviction and Mr. Brewer's stipulation that the crime involved the use or threat of violence to the person. R.Supp.Vol. III at 1065-67. The State called no witnesses during the penalty phase.

Mr. Brewer instructed his attorneys not to call any witnesses during the penalty phase. At the federal habeas corpus hearing, Mr. McCarthy testified ⁵ that he and Mr. Burns discussed whether or not they should override Mr. Brewer's direction and present mitigation witnesses. R.Vol. VIII at 18. Mr. McCarthy further testified that, at the time of trial, he did not believe Mr. Brewer was competent to make the decision to forego presentation of mitigating evidence; that, as far as Mr. McCarthy knew, Mr. Brewer had no reason for directing his counsel not to put on mitigating evidence; and that defense counsel's decision to forego presentation of mitigating evidence was not a "tactical decision."

Id. at 18, 22, 31. Thus, although defense counsel believed that the testimony of Mr. Brewer's mother, Shirley Brewer Botkin, would have been helpful, they nonetheless acceded to the wishes of their client and called no mitigation witnesses. Id. at 18, 30-31. Defense counsel did, however, introduce by motion the defense evidence presented during the guilt/innocence phase. Thus, Dr. Gagliano's testimony, presented during the guilt/innocence phase of the trial, was again before the jury in the penalty phase.

The jury found the two statutory aggravating factors beyond a reasonable doubt and returned a recommendation that the death penalty be imposed. On October 27, 1983, the court sentenced Mr. Brewer to death.

On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction and sentence, Brewer v. State, 718 P.2d 354 (Okla.Crim.App.1986), and the United States Supreme Court denied certiorari, Brewer v. Oklahoma, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 169 (1986). Mr. Brewer thereafter sought post-conviction relief in the Oklahoma state courts. The district court denied post-conviction relief on September 19, 1988. See Brewer v. State, No. CRF-78-2137 (Tulsa County Dist.Ct. Sept. 21, 1988). That decision was affirmed in an unpublished opinion by the Oklahoma Court of Criminal Appeals on September 8, 1989. See Brewer v. State, No. PC-88-868 (Okla.Crim.App. Sept. 8, 1989).

On June 12, 1992, Mr. Brewer filed this federal habeas corpus petition. The district court held an evidentiary hearing on December 23, 1993, and subsequently entered an order denying the petition. The court did, however, grant a certificate of probable cause and Mr. Brewer filed a timely notice of appeal with this court. A stay of execution order, entered by the district court on June 12, 1992, remains in effect. See R.Vol. I, Doc. 11.

As to each of the claims presented in this appeal, Mr. Brewer has exhausted the available state-court remedies. See 28 U.S.C. Sec. 2254(b). Mr. Brewer first presented the ineffective assistance of counsel claim to the Oklahoma district court in his application for post-conviction relief. Brewer v. State, No. CRF-78-2137 (Tulsa County Dist.Ct. Sept. 19, 1988). The court concluded that because ineffective assistance of counsel is a claim which may be raised on direct appeal, Mr. Brewer could not raise it for the first time on collateral review. Id. at 3-4 (citing Jones v. State, 704 P.2d 1138, 1140 (Okla.Crim.App.1985). The Oklahoma Court of Criminal Appeals affirmed. Brewer v. State, No. PC-88-868 (Okla.Crim.App. Sept. 8, 1989). However, in Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994), we recently held that the failure to raise a claim of ineffective assistance of counsel on direct review will not preclude federal review of that claim. Id. at 1363-64. Thus, Mr. Brewer's ineffective assistance of counsel claim is not procedurally barred. ⁶

Mr. Brewer's second claim, that he was denied the appointment of a mental health expert in violation of the Fourteenth Amendment, was raised on direct appeal and the Oklahoma Court of Criminal Appeals disposed of the claim on the merits. See Brewer v. State, 718 P.2d 354, 363 (Okla.Crim.App.1986).

DISCUSSION

In reviewing the district court's denial of Mr. Brewer's habeas corpus petition, we accept the court's findings of fact unless clearly erroneous and we review the court's conclusions of law de novo. Thomas v. Kerby, 44 F.3d 884, 886-87 (10th Cir.1995); Kell v. United States Parole Comm'n, 26 F.3d 1016, 1019 (10th Cir.1994); Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991).

I. INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE

Mr. Brewer's first claim is that his trial counsel was ineffective in not introducing the following evidence during the penalty phase of his trial: psychological evidence relating to his lifelong mental and emotional disturbance; and the testimony of his mother, Shirley Brewer Botkin. Noting that Mr. Brewer had instructed his attorneys not to present mitigating evidence, the federal district court stated its refusal to "establish a rule whereby an attorney must disregard the explicit instructions of his client, who has been found competent, or risk being found ineffective as counsel," R.Vol. I, Doc. 53 at 14, and denied habeas corpus relief on this ground.

A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo. Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir.1994); United...