Foster v. Strickland

• Decision Date: 27 June 1983
• Docket Number: No. 81-5734,81-5734
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Charles Kenneth FOSTER, Petitioner, v. Charles G. STRICKLAND, Jr., et al., Respondents.

Page 1339

707 F.2d 1339

Charles Kenneth FOSTER, Petitioner, v. Charles G. STRICKLAND, Jr., et al., Respondents.

No. 81-5734.

United States Court of Appeals, Eleventh Circuit.

June 27, 1983.

As Amended on Denial of Rehearing En Banc Nov. 3, 1983.

Steven L. Seliger, Tallahassee, Fla., Richard H. Burr, III, West Palm Beach, Fla., for petitioner.

Gregory C. Smith, Asst. Atty. Gen., Tallahassee, Fla., for respondents.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Charles Kenneth Foster appeals from the district court's denial of his petition for a writ of habeas corpus. Petitioner was convicted of first degree murder in Florida and sentenced to death. In this collateral appeal, he challenges: (1) the competency of his counsel in the guilt and penalty phases of his trial; (2) the constitutionality of instructions to the jury on the weighing of aggravating against mitigating circumstances; (3) the Florida Supreme Court's alleged use of non-record material in reviewing his sentence; and (4) the constitutionality of jury instructions allegedly limiting consideration of non-statutory mitigating circumstances.

After a careful review of the entire record, including petitioner's state trial transcript and the transcript of his federal habeas evidentiary hearing, we affirm the district court's decision with respect to these claims. We are compelled, however, to reverse because of the trial judge's inadequate findings of fact on the mitigating circumstances, as required by the Florida Death Penalty statute. It is impossible to determine whether petitioner's sentence was the product of reasoned judgment rather than of caprice and arbitrariness, and thus whether it comports with the constitutional requirements expressed by the Supreme Court. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

I. BACKGROUND

Petitioner was convicted of first degree murder and robbery for the July 15, 1975, killing of Julian Lanier. Petitioner apparently met Lanier for the first time at a bar on the evening of July 14, where they became acquainted over several drinks. Lanier asked petitioner if he knew of any women they could hire to engage in sexual relations. Petitioner and Lanier then traveled to another bar where they met two women, at least one of whom knew petitioner, and persuaded them to travel to a remote wooded area in Lanier's motorhome. Both petitioner and Lanier were, apparently, quite intoxicated.

In the early morning hours of July 15, just as Lanier and one of the women were about to engage in sexual intercourse, petitioner, without provocation, screamed that Lanier was taking advantage of his sister and brutally attacked Lanier with his fists. Petitioner then slit Lanier's throat with a knife. With the assistance of the two frightened women, petitioner dragged Lanier out of the motorhome to the woods and covered him, face down, with sticks and leaves. Hearing him breathing, petitioner, with one slice, severed Lanier's spinal cord at the base of his neck. Petitioner and the two women returned to the motorhome, where they allegedly then found Lanier's wallet and divided the money it contained.

Police, acting on information provided by the women, arrested petitioner on the day of the murder. Five days later petitioner gave the police a detailed confession of the crime. His subsequent motion to suppress the confession was denied. Petitioner's appointed counsel then filed a suggestion of insanity, and three court appointed psychiatrists examined petitioner. Two of these psychiatrists had treated petitioner extensively before for emotional disturbances. All three determined that petitioner was competent to stand trial and that he was likely sane when he committed the crime. The court adopted the psychiatrists' conclusions.

Petitioner was found guilty by a jury on October 3, 1975, of murder in the first degree, Fla.Stat.Ann. 782.04(1) (West Supp.1982), and of robbery. During the trial, Foster made a dramatic witness stand confession. The jury recommended the death penalty. Judge Spear sentenced petitioner to death on the murder charge and life imprisonment on the robbery charge. Petitioner's motion for a new trial was denied. The Florida Supreme Court, in an automatic appeal mandated by Florida's death penalty statute, affirmed petitioner's conviction and sentence. Foster v. State, 369 So.2d 928 (Fla.1979). A motion for rehearing was denied, as was a petition for certiorari to the United States Supreme Court. 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 1116 (1979).

On May 5, 1981, the Governor of Florida signed a death warrant ordering petitioner's execution on June 3, 1981. The Florida Circuit Court denied petitioner's application for a stay of execution and motion for post-conviction relief on May 15, 1981. The Florida Supreme Court affirmed this decision on May 28, 1981. 400 So.2d 1 (Fla.1981).

The United States District Court for the Northern District of Florida granted a stay of execution when petitioner sought habeas relief from the district court. 515 F.Supp. 22 (N.D.Fla.1981). After a two day evidentiary hearing, the district court denied the petition for a writ. 517 F.Supp. 597 (N.D.Fla.1981). Petitioner appealed to this Court. After hearing oral argument in the case, we deferred consideration until this Court issued its en banc decision in Ford v. Strickland, 696 F.2d 804 (11th Cir.1983), because that decision addresses several issues which we face here. We now proceed to a consideration of each of petitioner's claims.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Fourteenth Judicial Circuit Public Defender Virgil Mayo assumed representation of Foster's case from an assistant about a month before the trial. Mayo has been a member of the Florida Bar since 1951. He has represented defendants at numerous criminal trials, having held the public defender's position since 1963. His experience with capital cases under the recently amended death penalty statute was limited, as was every other attorney's at the time, although Mayo had tried cases under the old statute before it was invalidated by the Supreme Court's decision in Furman v. Georgia. Mayo was assisted in the defense by Bill Wagers, a new assistant public defender, whom the district court noted was a highly competent criminal defense lawyer.

Foster asserts that his trial counsel rendered ineffective assistance at both the guilt and penalty phases. We turn to these contentions.

A. Guilt Phase

Petitioner alleges that his counsel failed to provide adequate representation during the guilt phase of his trial. He cites numerous instances of this alleged inadequacy, the most significant of which are that: (1) Mayo failed to inform the examining psychiatrist and the court of Foster's "irrational behavior" exhibited at pre-trial conferences; (2) Mayo failed to challenge the psychiatrists' reports on competency by interviewing the psychiatrists and requesting a competency hearing rather than merely submitting the competency issue on the basis of the reports; ¹ (3) Mayo failed to raise effectively the competency issue after the confession and after he discovered Foster's use of Valium during the trial; and (4) Mayo failed to investigate and present an insanity defense.

In evaluating petitioner's claim, we note that he was not entitled to, "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified, 289 F.2d 928 (5th Cir.), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). In order to establish a claim of constitutionally deficient representation that may be redressed in a habeas action, petitioner must not only show ineffective assistance, he must also "demonstrate that the ineffective assistance created not only 'a possibility of prejudice but that [it] worked to his actual and substantial disadvantage.' " Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir.1982) (Unit B, en banc ), quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original).

It is clear from the record that defense counsel performed his duties competently and conscientiously. ² Mayo did not fail to discover information that was necessary for the competent defense of Foster. The district court did not clearly err, based upon our review of the record, in finding that Mayo interviewed Foster's mother and that he studied all the relevant medical records, including the psychiatric reports of Foster's medical records at the hospitals and clinic where his emotional disturbances were treated. Mayo investigated adequately the competency issue.

Three psychiatrists examined Foster at the court's request, two of whom, Dr. Mason and Dr. Sapoznikoff, had treated him extensively for prior episodes of emotional disturbance. The unanimity of the three professionals that Foster was competent to stand trial and legally sane at the time of the crime weighs heavily against the suggestion that Mayo, by requesting a hearing, somehow could have altered the outcome of the competency determination. Moreover, it does not appear that Mayo possessed any unique information that would have contributed measurably to the doctors' or the court's competency determinations. While Mayo's testimony indicates he had serious doubts about Foster's psychiatric health, the testimony does not demonstrate that Mayo believed Foster was legally incompetent to stand trial in Florida.

Nor did Mayo act inappropriately following Foster's in-court confession. Mayo promptly raised the competency issue after the...