Wilson v. Butler
| Decision Date | 24 March 1987 |
| Docket Number | No. 86-3537,86-3537 |
| Citation | 813 F.2d 664 |
| Parties | David Earl WILSON, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary at Angola, Louisiana, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
See also, 106 S.Ct. 585.
James Lloyd Volling, Faegre & Benson, Minneapolis, Minn., William P. Quigley, New Orleans, La., for petitioner-appellant.
William R. Campbell, Jr., New Orleans, La., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before RUBIN, JOHNSON, and JONES, Circuit Judges.
The petitioner was convicted of first-degree murder in a Louisiana court and sentenced to death. He appeals the district court's denial, without a hearing, of his petition for a writ of habeas corpus, and presents the same claims for relief argued in the district court and in state courts. We hold that the district court should have held an evidentiary hearing on the issue of ineffectiveness of counsel at the sentencing phase of the trial because the petitioner alleges, proffering evidentiary support, that his trial lawyer failed to investigate and present the defense that, at the time of the victim's death, the petitioner suffered from a mental defect impairing his ability to appreciate the criminality of his conduct or conform to the requirements of law, a mitigating circumstance under Louisiana law. In all other respects, we affirm the opinion of the district court.
According to the testimony offered by the prosecution, in the early morning hours of October 17, 1983, David Earl Wilson was traveling west on Interstate 10 with two companions, Larry Benjamin and Larry Taylor. The car in which they were traveling ran out of gas near Slidell, Louisiana. Wilson told his companions that he would get some gas. Benjamin responded that he hoped Wilson would not "do anything drastic," and Wilson replied, "I [don't] give a ____ about killing the ____." Wilson then got out of the back door of the car carrying a sawed-off shotgun and hid in tall grass several feet from the shoulder of the road. Soon thereafter, Stephen Stinson, a passing motorist, stopped his car to offer assistance. Taylor spoke with Stinson, who agreed to take him to a gas station. As Taylor opened the passenger door of Stinson's car, Wilson emerged from his hiding place, pushed Taylor away, shoved the shotgun into Stinson's face, and fired point blank. Stinson's car, which had been in gear, lurched forward about 200 feet and At the trial, Wilson was represented by court-appointed counsel, John R. Simmons. Benjamin testified against him and other evidence corroborated Benjamin's testimony: The police had found blood on Wilson's garments and shotgun shells in his pocket. Wilson took the stand and testified that he had been asleep in Taylor's car during the incident, awakening only to the sight of police units, and that upon awakening he had walked away from the scene. Wilson's testimony contradicted that of prosecution witnesses on almost every material point, and contradictions in his own testimony brought out on cross-examination undermined his credibility. He was convicted of first degree murder and sentenced to death in the Twenty-Second Judicial District Court for St. Tammany Parish. The Louisiana Supreme Court affirmed the conviction and sentence, 1 and the United States Supreme Court denied certiorari. 2
hit a tree. Taylor and Benjamin ran from the scene. Passing truck drivers spotted Stinson's car and alerted the police, who found Wilson, Taylor, and Benjamin in the area.
Wilson first sought collateral relief in the state trial court, which denied his petition without an evidentiary hearing. On the following day, the Louisiana Supreme Court denied a writ of habeas corpus and stay of execution. Wilson then turned to federal court. His federal habeas corpus petition raised the same claims that he had raised in state court. The district court concluded that an evidentiary hearing was not required, and denied the petition. The district court, however, stayed its order pending Wilson's appeal to this court.
Wilson asserts numerous grounds for relief, including arguments that: (1) counsel was ineffective, violating his sixth amendment rights, at both the guilt and sentencing phases of his trial; (2) imposition of the death penalty was based on an aggravating circumstance that duplicates an element of the crime itself, violating the eighth amendment and the doctrine of Collins v. Lockhart; 3 (3) the death penalty was discriminatorily imposed on him, as argued in McCleskey v. Kemp 4 and Hitchcock v. Wainwright, 5 because the victim was white and Wilson is black; (4) all but one of the prospective black jurors were removed from the venire before the completion of jury selection, thus discriminating against him because of his race; (5) two prospective jurors were removed for cause, under Witherspoon v. Illinois, 6 even though they had not expressed sufficient reservations against the death penalty; and (6) the prosecutor made improper and prejudicial statements that rendered the trial fundamentally unfair, violating Wilson's right to due process.
In his claim of ineffective assistance of counsel, Wilson contends that his lawyer did not adequately investigate his background and formulate an appropriate defense based on Wilson's mental incapacity. In support of this claim, Wilson alleges comprehensive and detailed facts about his poverty-stricken childhood and deficient mental capacity. He had suffered a series of convulsions, possibly causing him organic brain damage, had an I.Q. of 66, and, because of his parent's poverty, often went without medical treatment. He finally left school in the ninth grade without having learned to read or write, soon becoming a regular client of the juvenile justice system as a result of thefts and aggressive acts toward others. When it became apparent In October 1983, when Wilson was on parole in California for second-degree burglary, he traveled to Alabama to seek reconciliation with his parents. He was returning from this visit when the murder occurred.
that his parents would not cooperate with the disciplinary measures taken by the parole authorities, Wilson was placed in a foster home for boys, from which he repeatedly ran away, supporting himself through theft and burglary. A psychiatric report written when he was seventeen diagnosed him as suffering from paranoid schizophrenia. Two months after his eighteenth birthday, Wilson was convicted of theft and sentenced to jail. Several times thereafter he was convicted of burglary and robbery. Members of his family severed their relationship with him, increasing his sense of isolation and rejection.
According to the affidavit of John R. Simmons, Wilson's appointed trial counsel, filed in support of Wilson's petition for habeas corpus, Simmons talked with Wilson's parents when he was preparing for the trial. He learned from Wilson's father that Wilson "had problems" dating from his childhood. Furthermore, his observations of Wilson at the trial allegedly gave him additional reason to investigate Wilson's mental history. According to the affidavit, Wilson's personality changed suddenly during the trial, and he acted like "an entirely different person," when he took the stand. However, at no point did Simmons investigate the history of Wilson's mental problems; determine the existence of relevant psychological, psychiatric, or probation records; or attempt to consult with, or have Wilson examined by, a competent psychiatrist or psychologist.
With his habeas petition, Wilson also presented the affidavit of a clinical psychologist, Marc L. Zimmerman. Based on a review of presently available medical, psychological, and psychiatric records, and a personal interview with Wilson, Zimmerman found that Wilson is mentally retarded and suffers from a psychosis with an organic as well as a psychological basis. Zimmerman gave his professional opinion that Wilson's condition is a mental disease or mental defect that "impaired" his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law--a mitigating circumstance under Louisiana Code of Criminal Procedure Art. 905.5. Zimmerman stated that, due to Wilson's long history of mental disorder, he was likely suffering from this condition both at the time of the murder and at the time of his trial in state court. Zimmerman also concluded, therefore, that Wilson's condition "impaired" his competence to stand trial. Zimmerman stated that a more specific diagnosis of Wilson's disorder would require further testing and examination.
Based on these allegations and the supporting affidavits, Wilson contends that he should be granted an evidentiary hearing on his claim that counsel was ineffective in failing to investigate and present the defense of insanity at the guilt phase of the trial. We pretermit the issue of counsel's allegedly deficient performance, for Wilson has failed to show an indispensable element of a claim of ineffectiveness of counsel: resulting prejudice. 7 The Supreme Court opinion in Strickland v. Washington 8 requires the petitioner to establish a reasonable probability that, but for counsel's ineffectiveness, the outcome of the trial would have been different. 9 In order to receive an evidentiary hearing, the petitioner must allege sufficient facts to show the reasonable probability of a different outcome. 10
Even if Wilson should be able to prove all of his allegations, they fail to show that, had he been properly represented, he would have had a valid insanity defense. Louisiana law requires, for this defense, that the offender be "incapable of distinguishing between right and wrong with reference to the conduct in question." 11 Assuming the truth of the conclusions in Dr....
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