817 F.2d 285 (5th Cir. 1987), 87-3305, Lowenfield v. Phelps

Docket Nº:87-3305.
Citation:817 F.2d 285
Party Name:Leslie LOWENFIELD, Petitioner-Appellant, v. C. Paul PHELPS, Secretary of the Department of Corrections, State of Louisiana, et al., Respondents-Appellees.
Case Date:May 11, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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817 F.2d 285 (5th Cir. 1987)

Leslie LOWENFIELD, Petitioner-Appellant,


C. Paul PHELPS, Secretary of the Department of Corrections,

State of Louisiana, et al., Respondents-Appellees.

No. 87-3305.

United States Court of Appeals, Fifth Circuit

May 11, 1987

Stay Granted June 16, 1987. See 107 S.Ct. 3221.

Certiorari Granted in Part June 22, 1987. See 107 S.CT.


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[Copyrighted Material Omitted]

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Maurice N. Ross, New York City, Nancy Marshall, New Orleans, La., for petitioner-appellant.

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John J. Molaison, Jr., Dorothy A. Pendergast, Asst. Dist. Attys., Research & Appeals, Gretna, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The petitioner, Leslie Lowenfield, was convicted of the first degree murder of three persons; the court sentenced him to death on each count on the jury's recommendation. The conviction and sentence was affirmed by the Louisiana Supreme Court, State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). Post conviction relief was denied by the state court. Lowenfield v. Phelps, 497 So.2d 301 (La.1986). On Lowenfield's application for federal habeas relief, the district court stayed the execution set for November 19, 1986, so it could carefully consider the petition. Following a full evidentiary hearing, the district court denied habeas relief and vacated its earlier stay of execution; it also denied a certificate of probable cause. Lowenfield filed a notice of appeal from the district court's denial of habeas relief, and he seeks a certificate of probable cause from this court.



Petitioner, a native of Guyana, came to Louisiana from Canada in June 1981 and met the primary victim, Sheila Thomas, a deputy sheriff in Jefferson Parish, Louisiana, shortly thereafter. Ms. Thomas, along with her young daughter, victim Shantell Osborne, moved in with Lowenfield later in the summer of 1981. Lowenfield and Ms. Thomas lived together off and on for approximately one year. During this year, Ms. Thomas left Lowenfield on three separate occasions and returned to live with her mother. Lowenfield became increasingly bitter following each separation. When Ms. Thomas returned to her mother's home for the last time, he repeatedly threatened and harassed Ms. Thomas and her mother, victim, Myrtle Griffin.

In the late afternoon of August 30, 1982, Owen Griffin, Sheila Thomas' stepfather, was in a vacant lot near his home in Marrero, Louisiana playing cards with friends. Owen Griffin heard shots ring out from his home, and ran to the house and rushed inside whereupon more shots rang out. When the police arrived, they found five bodies sprawled about the living area of the house; they found the bodies of Sheila Thomas, her four-year old daughter Shantell, Owen Griffin, his wife Myrtle Griffin, and Carl Osborne, the father of Shantell. All of the victims had sustained multiple gunshot wounds; each had been shot in the head at close range.

For a more detailed statement of the facts, see the Louisiana Supreme Court's decision in State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). We now turn to the specific issues raised by petitioner; we will discuss the facts further as needed in our discussion of these issues.


  1. Duplication of the Elements of the Underlying Crime and

    The Aggravating Circumstances

    Petitioner argues that the single aggravating circumstance upon which his sentence was based: knowingly creating a risk of death to more than one person, is simply a duplication of the aggravating circumstance the state was required to prove to establish his guilt of first degree murder, specific intent to kill more than one person. 1 Petitioner argues that this aggravating

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    circumstance fails to narrow the class of persons eligible for the death penalty because it does nothing more than duplicate an element of the crime. Petitioner relies primarily on Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). In Collins, the Eighth Circuit concluded that there is "no escape from the conclusion that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform the narrowing function [required by the Supreme Court]." Id. at 264. But, we expressly rejected this analysis in Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.1986), where we stated "we fail to see why aggravating circumstances narrow the sentencing discretion any less by being made a constituent element of the crime. The State of Louisiana is entitled to authorize capital punishment for persons guilty of these aggravated acts where the jury does not find that mitigating circumstances justify less than the death penalty." See also Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987); Wilson v. Butlers, 813 F.2d 664 (5th Cir.1987). Thus, based upon clear precedent from this circuit, we reject petitioner's arguments presented in this claim.

  2. The Trial Court's Failure to Permit Defense Counsel To

    Withdraw and Appoint Substitute Counsel

    Shortly before the trial was scheduled to begin, appointed counsel moved for permission to withdraw as counsel of record. This motion was predicated primarily on counsel's disagreement with Lowenfield over petitioner's refusal to permit them to urge insanity as a defense; the motion was also based on a letter Lowenfield sent counsel threatening them and their families.

    Counsel testified at the habeas hearing that the motion to withdraw resulted primarily from their inability to persuade petitioner to urge an insanity defense. Mr. Capitelli testified that once the decision was made to follow Lowenfield's wishes and rely on the alibi defense, his relationship with Lowenfield was good. Both counsel testified that they had little concern about the threatening letter after they learned that it was mailed from the prison where Lowenfield was confined.

    The trial judge had to consider whether relieving counsel who were familiar with the facts would result in an inordinate delay of the trial and encourage similar disagreements to seek further delays. The trial judge had no reason to believe that Lowenfield would enjoy any better relationship with a new attorney.

    The Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), held that the determination of whether an attorney rendered effective assistance of counsel must concentrate "on the adversarial process, not on the accused's relationship with his lawyer as such." Id. at 657 n. 21, 104 S.Ct. at 2046 n. 21. Based upon the trial record and the testimony before the district court at the habeas hearing, we are persuaded that the adversarial process remained intact during this trial. Petitioner has not demonstrated that the trial court's denial of the motion to substitute counsel was "unreasonable and arbitrary." Wilson v. Mintzes, 761 F.2d 275, 287 (6th Cir.1985).

  3. Ineffective Assistance of Counsel

    Petitioner contends that his attorneys rendered ineffective assistance of counsel in both the guilt and penalty phases of his trial. We are guided by the teaching of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) on this question in which the Court established two basic requirements for finding ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant

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    must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. The Court further explained that:

    Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." ... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

    Id. at 689, 104 S.Ct. at 2065 (citations omitted). The Court continued:

    [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the...

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