Magill v. Dugger
| Citation | 824 F.2d 879 |
| Decision Date | 28 July 1987 |
| Docket Number | No. 85-3820,85-3820 |
| Parties | Paul Edward MAGILL, Petitioner-Appellant, v. Richard L. DUGGER, as Secretary of the Department of Corrections, State of Florida, Tom Barton, as Superintendent of the Florida State Prisons, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Michael A. Mello, Wilmer, Cutler & Pickering, Washington, D.C., Philip J. Padovano, Tallahassee, Fla., for petitioner-appellant.
Paul Hoffman, Joan Howarth, Los Angeles, Cal., amicus curiae, ACLU of Southern California.
Steve Forester, Miami, Fla., amicus curiae ACLU of Florida.
Robert A. Butterworth, Atty. Gen. of Florida, Margene A. Roper, Asst. Atty. Gen., Dept. of Legal Affairs, Daytona Beach, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY, JOHNSON and CLARK, Circuit Judges.
Paul Magill appeals from an order of the district court denying habeas corpus relief from his murder conviction and death sentence. Because we find that the sentencing proceeding which resulted in a death sentence was prejudiced by the combination of trial counsel's ineffectiveness and the advisory jury's failure to consider nonstatutory mitigating circumstances, we reverse.
The facts surrounding this homicide were, with minor exceptions, undisputed at trial and were derived mostly from Magill's taped confession and in-court testimony. Magill was a seventeen year old high school student when, on December 23, 1976, he robbed a convenience store near his home in Belleview, Florida. At gunpoint, he forced the store clerk, Karen Sue Young, to give him all the cash on hand. Realizing the clerk would call the police as soon as he left, Magill decided to take her away from the store so she would not have access to a telephone. Magill drove Ms. Young to a wooded area, but instead of abandoning her as originally intended, he forced her from the car and raped her. While returning to the car, Magill again realized that Ms. Young would be able to identify him as the robber. As they were walking back to the car, Magill shot Ms. Young in the side of the head at point-blank range. After she fell, Magill shot at her head but missed, and then shot her in the chest. He dragged her body into some bushes and drove off. 1 Within a few minutes he was arrested by police and confessed to the crimes later that same day.
Magill pled not guilty and was tried for armed robbery, involuntary sexual battery, and first degree murder. 2 Defense counsel initially considered an insanity defense. Pursuant to the trial court's order, Magill was examined by Dr. Carrera and Dr. Barnard to determine whether he was competent to stand trial and to determine whether he was insane at the time of the crime. Both psychiatrists found Magill was competent and that he was not legally insane at the time of the crime. Counsel then abandoned the insanity defense and instead attempted to convince the jury that Magill was guilty of second degree murder. The jury rejected this argument and convicted Magill on all counts.
Testimony at the sentencing phase and, to a greater extent, at a post-conviction hearing brought to light several bizarre (although non-violent) instances from Magill's past which indicated emotional disturbance. In 1972, at the age of thirteen, Magill was arrested in New Jersey for indecent exposure. Pursuant to a court order, he started seeing Dr. Martinez-Monfort (a psychologist) in Puerto Rico, where Magill's family lived. Dr. Martinez-Monfort, who was not contacted to testify at trial, testified at a post-conviction hearing that Magill was "extremely poorly equipped to enter adolescence," had no capacity to handle his sexual drives, and had very little inner control over his aggression. Dr. Martinez-Monfort claimed he was not surprised when told that Magill had committed crimes of violence in 1976. Rule 3.850 Hearing Transcript at 46. After moving with his family to Florida, Magill (then 15 years old) again was arrested for exposing himself. Shortly thereafter, according to his mother's sentencing phase testimony, he attempted to cut his wrists when his father refused to buy him a motorcycle. Trial Transcript at 508. He would, on occasion, run away from home. Id. at 509.
Magill's behavioral problems intensified after his father died in late 1975, almost exactly one year before the murder of Ms. Young. After being arrested for retail theft, Magill began to see Terry Wagner, a probation counselor with the Division of Youth Services. Ms. Wagner saw Magill from September, 1976 until December, when the homicide was committed. She testified that Magill had great difficulty expressing emotion, and that his antisocial behavior likely was a result of repressed emotion. According to Ms. Wagner's sentencing phase testimony:
Well, on stealing things and exposing himself. It was almost like things would get to a point that he couldn't stand it anymore and he would have to do something and he would do it in those manners.
Trial Transcript at 515. This analysis was concurred in by Dr. Bruce Hartley, a clinical psychologist who saw Magill from July, 1976 until December, 1976, and by Murney McCroskey, one of Magill's high school teachers. Magill testified that he robbed the convenience store because he was angry with his mother and needed money to run away from home. 3
Dr. Barnard, one of the court appointed psychiatrists, was called by Magill's counsel during the sentencing phase. He testified that he "saw no indication of a major psychotic illness or a major neurotic illness or of a hard core character disorder." Trial Transcript at 524. On cross-examination, he explained that Magill felt remorse for his actions but offered his opinion that Magill was not under the influence of extreme mental or emotional disturbance at the time he committed the crime, thus negating the presence of a statutory mitigating circumstance.
The final witness in mitigation was Magill. He testified, as he had during the guilt phase, that he planned the robbery ten minutes before it happened and that he did not plan to rape and murder the victim until just before he committed those acts. The trial court did not permit him, however, to express his feelings regarding his crimes nor did the court permit him to make a general statement to the advisory jury.
The jury recommended that Magill be given the death sentence. After examining a presentence report, the court accepted the jury's recommendation. In its findings of fact, the court found the following statutory aggravating factors: (1) the murder was committed while the defendant was engaged in the commission of, or flight after committing, the crime of robbery and rape [Fla.Stat. Sec. 921.141(5)(d) ]; (2) the capital felony was especially heinous, atrocious and cruel [Fla.Stat. Sec. 921.141(5)(h) ]; and (3) the capital felony was committed in connection with the crime of robbery which was perpetrated for pecuniary gain [Fla.Stat. Sec. 921.141(5)(f) ]. The court also noted that Magill committed three felonies during this criminal episode. The court found that these aggravating factors outweighed any mitigating circumstances.
Magill's conviction was affirmed on appeal, but the Florida Supreme Court vacated the death sentence because the trial court failed to specify the mitigating circumstances which it considered in imposing sentence. See Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981) (Magill I ). Appellant was then resentenced by the trial court sitting without a jury. The court, relying on the presentence report and the original jury's recommendation, again sentenced Magill to death. Along with the aggravating factors found at trial, the court found three mitigating circumstances: (1) that Magill was seventeen years old at the time of the crime [Fla.Stat. Sec. 921.141(6)(g) ]; (2) that Magill had no significant prior criminal record [Fla.Stat. Sec. 921.141(6)(a) ]; and (3) that Magill's father passed away on December 28, 1975. 4 This death sentence was affirmed on appeal. Magill v. State, 428 So.2d 649 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983) (Magill II ). Thereafter, Magill moved for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. An evidentiary hearing was held on Magill's ineffective assistance of counsel claim, and relief was denied. See Magill v. State, 457 So.2d 1367 (Fla.1984) (Magill III ).
Magill then filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254. The district court denied Magill's request for an evidentiary hearing and denied relief, although the court issued a certificate of probable cause to appeal. We stayed appellant's execution, and now reverse.
Appellant advances five claims of constitutional error with respect to his conviction for first degree murder and sentence of death. He alleges that: (1) trial counsel rendered ineffective assistance at the guilt and penalty phases of trial; (2) the trial court improperly instructed the jury not to consider evidence of nonstatutory mitigating circumstances; (3) a member of the jury venire was improperly excused for expressing reservations about capital punishment as applied to a minor; (4) the "heinous, atrocious and cruel" aggravating circumstance is unconstitutional on its face and as applied to this case; and (5) the death penalty is cruel and unusual punishment for anyone who commits an offense while under the age of eighteen. As is explained below, because Magill's first two claims warrant that his death sentence be vacated, we need not reach the merits of claims four and five. We do, however, find that any death sentence which may result from the resentencing permitted by this opinion should be stayed pending the Supreme Court's resolution of a case presenting the issue...
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