Davis v. Wyrick

• Decision Date: 07 August 1985
• Docket Number: No. 84-1636,84-1636
• Parties: James Michael DAVIS, Appellant, v. Donald WYRICK, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1197

766 F.2d 1197

James Michael DAVIS, Appellant, v. Donald WYRICK, Appellee.

No. 84-1636.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1985.

Decided June 28, 1985.

Rehearing and Rehearing En Banc Denied Aug. 7, 1985.

Charles S. Elbert, St. Louis, Mo., for appellant.

George Cox, Jefferson City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

HENLEY, Senior Circuit Judge.

James Michael Davis appeals from the district court's denial of his petition for habeas corpus. In support of his petition Davis contends that (1) he was incompetent at the time of his trial; (2) the district court erred in refusing to conduct an evidentiary hearing on the competency issue; (3) he was deprived of due process by certain remarks made by the prosecutor at trial; (4) the evidence is insufficient to support his capital murder conviction; (5) the trial court's bias deprived him of a fair trial; and (6) his conviction must be reversed because three prospective jurors were excused for cause because they held absolute scruples against the death penalty. We hold that Davis is not entitled to habeas relief and affirm the judgment of the district court. ¹

In October of 1977 St. Charles Police Officers Leslie Simpson and Gary Stroud responded to a report that a man had a gun outside of a tavern. As Officer Simpson arrived on the scene, he saw Davis run in front of the tavern, throw a gun into a white 1959 Ford, and attempt to drive away. Although Simpson tried to block Davis' car, Davis eluded Simpson and proceeded west on Morgan Street. Officer Stroud then arrived and gave pursuit in his car while Officer Simpson checked to see whether anyone had been injured in the tavern.

Davis made it as far as the next block where he turned left and became hung up on some bushes. Officer Stroud pulled his patrol car behind Davis' car to prevent Davis from extricating his car from the bushes. Davis then got out of his vehicle, aimed a shotgun at Stroud, and fired three shots in rapid succession through the windshield. Officer Stroud later died as a result of wounds to his heart and lungs.

As Davis returned to his car, Simpson arrived and fired six shots toward Davis' vehicle. Davis managed to get his car off the bushes, however, and escaped. Davis was later apprehended after he was found hiding in a flower bed about ten blocks from the scene of the homicide. ² He struggled with the arresting officers, threatened to kill them, and had to be restrained. In both oral and written statements taken after his arrest, Davis admitted killing Stroud. ³

Davis' defense at trial was not guilty by reason of mental disease or defect. He produced evidence that he was a long term alcoholic and had been in several automobile accidents. There was testimony that Davis had been taking several prescription drugs, including Valium and Librium. He suffered headaches and had at least one seizure for which he was hospitalized.

A competency hearing was held prior to trial. Dr. Joseph Turner stated that Davis had a "definite abnormality" or tumor on one side of his brain. His report stated that Davis had a "mental defect," which, along with his alcoholism and prior head injuries sustained in car accidents, affected his behavior to such an extent that it prevented his knowing right from wrong. Dr. Henry Bratkowski generally concurred in these findings and stated Davis' problems were neurologic rather than psychiatric and that Davis was not suffering from any psychosis. ⁴ Both experts stated that they believed Davis had no recollection of Officer Stroud's murder. Dr. Bratkowski admitted, however, that his amnesia diagnosis was based solely on Davis' statement that he could not remember the homicide.

Dr. David Sherman testified for the state at both the competency hearing and at trial. Dr. Sherman stated that he thought the mass on Davis' brain was a scar or vascular malformation rather than a tumor. He opined that Davis was not suffering from any mental disease or defect at the time of the killing.

On the specific issue of competency to stand trial, all three doctors were in agreement that Davis was competent to understand the proceedings and assist in his own defense. Dr. Bratkowski's only reservation was that the proceedings might have to be stayed if Davis became temporarily incapacitated because of headaches or seizures.

On the basis of this testimony, the state trial court found Davis competent to stand trial. ⁵ Davis' interlocutory appeals from this ruling were denied. Davis was convicted of capital murder and sentenced to life imprisonment without possibility of parole for a period of fifty years. The Supreme Court of Missouri affirmed. State v. Davis, 653 S.W.2d 167 (Mo. banc 1983).

Davis then filed the present habeas petition. The matter was referred to a magistrate ⁶ who recommended that the petition be denied. The district court adopted the magistrate's report and recommendation. This appeal followed.

COMPETENCY TO STAND TRIAL.

Davis argues that because he had amnesia with respect to the events surrounding the homicide, and because of his "mental defect" in the form of an alleged brain tumor, he lacked a rational and factual understanding of the proceedings against him and was unable to assist in his defense.

It is a violation of due process to convict a person while he is legally incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Speedy v. Wyrick, 748 F.2d 481, 484 (8th Cir.1984). The test for determining whether an accused is competent to stand trial is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975).

We note that "[s]ince competency to stand trial is a factual issue, we must presume the state court's findings to be correct unless they can be faulted for one of the reasons listed in 28 U.S.C. Sec. 2254(d)." Beans v. Black, 757 F.2d 933, 935 (8th Cir.1985); Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261-2264, 76 L.Ed.2d 794 (1983) (per curiam). Davis was given a hearing and found competent by both the state trial and appellate courts.

Davis asserts that his state competency hearing was not full and fair, and thus the presumption of correctness is inapplicable. See 28 U.S.C. Sec. 2254(d)(6). He contends that the hearing was held before a different judge than the one who actually made the competency finding and that the hearing was held ten months prior to trial. He urges us to adopt a requirement of a post-trial competency finding. See Wilson v. United States, 391 F.2d 460 (D.C.Cir.1968).

Davis' arguments are unpersuasive. The hearing which was held in the state court was more than adequate to develop the facts relating to Davis' competency. Three doctors gave testimony and submitted reports on the issue. Davis' alleged amnesia, the effects of his alcoholism, prior head injuries, and the mass on his brain were all fully explored. Moreover, the record reflects that the state trial judge did not blindly accept the finding of the judge who conducted the competency hearing. He examined the record and simply came to a similar conclusion. As for the ten month time lag, there is no indication that there was any new evidence to be presented on the competency issue at the time of trial. Finally, while a post-trial competency finding may be desirable, it is doubtful that such is required by the due process clause. ⁷ In short, Davis' competency hearing was full, fair and adequate, and we are constrained to accord deference to the state court's findings.

In any event, there is ample evidence supporting a finding of Davis' competency to stand trial. As noted, while there was some dispute between the experts as to whether Davis was able to appreciate the wrongfulness of his act at the time of the killing, all three psychiatrists/neurologists were in agreement that, despite his claim of amnesia, Davis was competent to stand trial. Amnesia alone is not a bar to the prosecution of an otherwise competent defendant. E.g., Holmes v. King, 709 F.2d 965, 968 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 428, 78 L.Ed.2d 362 (1983); United States v. Alley, 661 F.2d 718, 722 (8th Cir.1981); United States ex rel. Parson v. Anderson, 481 F.2d 94, 96 (3d Cir.), cert. denied, 414 U.S. 1072, 94 S.Ct. 586, 38 L.Ed.2d 479 (1973); Dhaemers v. State, 456 F.2d 1291 (8th Cir.1972) (per curiam). There is little evidence that Davis' alleged amnesia hindered his ability to understand the proceedings or assist in his defense. ⁸

Relatedly, Davis contends that the district court should have held an evidentiary hearing on the competency issue. However, we have already indicated that Davis received a full and fair hearing in the state court. There was no need for a federal district court to hold a second hearing. ⁹ Stewart v. Missouri Bd. of Probation, 712 F.2d 378 (8th Cir.1983) (per curiam); Mitchell v. Wyrick, 698 F.2d 940, 944 (8th Cir.), cert. denied, 462 U.S. 1135, 103 S.Ct. 3120, 77 L.Ed.2d 1373 (1983). Moreover, "[a] habeas corpus petition may be properly dismissed without a hearing where facts are not in dispute or where the dispute can be resolved on the basis of the record." Riley v. Lockhart, 726 F.2d 421, 423 (8th Cir.1984) (per curiam); Hill v. Lockhart, 731 F.2d 568, 572-73 (8th Cir.1984). It was not an abuse of discretion for the district court to conclude that it could resolve the present dispute on the basis of the record.

IMPROPER PROSECUTORIAL COMMENTS.

Davis next contends that he was deprived of a fair trial by virtue of certain comments made by the prosecutor. During a bench conference...