842 F.2d 1512 (5th Cir. 1988), 86-3352, Roussell v. Jeane

Docket Nº:86-3352.
Citation:842 F.2d 1512
Party Name:Roland ROUSSELL, Petitioner-Appellant, v. Larry JEANE, Warden, et al., Respondents-Appellees.
Case Date:April 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1512

842 F.2d 1512 (5th Cir. 1988)

Roland ROUSSELL, Petitioner-Appellant,

v.

Larry JEANE, Warden, et al., Respondents-Appellees.

No. 86-3352.

United States Court of Appeals, Fifth Circuit

April 28, 1988

Page 1513

Julian R. Murray, Jr., Murray, Braden, Gonzalez & Richardson, New Orleans, La., for petitioner-appellant.

Gregory C. Champagne, Kurt Sins, Asst. Dist. Attys., Hahnville, La., for respondents-appellees.

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

Before KING, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Roland Roussell shot his wife and was convicted of manslaughter by a Louisiana jury. The district court denied Roussell's petition for the writ of habeas corpus, and we affirm.

Facts and Proceedings Below

In describing the crime, we quote from the Louisiana Supreme Court opinion affirming Roussell's conviction and sentence, State v. Roussel, 1 424 So.2d 226, 227-28 (La.1982):

"[On November 28, 1980] Roland Roussel[l] ... fatally shot his wife, Dara Ann Roussel[l]. Although they had been married only four months, they had separated on several occasions due to Dara Ann's alleged use of drugs.... Prior to the shooting, they had again separated.... Dara Ann had spent several nights prior to the shooting at the trailer of her grandparents (the Oubres).

"On the day of the shooting, Dara Ann picked up defendant at his place of employment. They returned to the trailer to get her belongings before returning home. While Dara Ann was packing, defendant left to purchase some beer at a nearby convenience store. Upon returning, Dara Ann's behavior had dramatically changed to that consistent with her behavior when on drugs. She was extremely upset about losing her purse. Defendant called her cousin, Leatrice Mitchell, to come to the trailer which she did. David Mitchell followed his wife a short while later. According to his testimony, Dara Ann was visibly upset. Defendant was in possession of a .22 caliber revolver which he carried for protection in connection with his employment. Defendant removed the gun from his pants and placed it in the right pocket of his jacket....

"Mrs. Oubre testified that she questioned defendant about the gun when she arrived. Upon denying he had one, she suggested it would be better if he left. Defendant agreed to go but did not leave immediately because he wanted to explain to Mrs. Oubre that what Dara Ann was saying about him was not true.... Then the phone rang; it was Dara Ann's mother. Dara Ann told her that defendant was going to kill her. Mrs. Oubre took the phone. Defendant asked to talk with Dara Ann's mother. Mrs. Oubre passed him the phone but Dara Ann's mother had hung up....

"Defendant testified that he was very nervous and upset at this point and had decided to leave. The 'noise and hostility' from his wife's family had him crying and his hands were bunched in his pockets, his right hand wrapped around the outside of his pistol, squeezing it very tightly. He remembered walking toward Dara Ann and her grandmother (Mrs.

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Oubre) who were standing near the table where his belongings were located and hearing a shot fired, but did not know how it was fired, by whom, or that anyone was hit."

The shot that Roussell heard came from his own pistol and it killed his wife. David Mitchell wrestled Roussell to the floor and held him until police arrived.

The state originally charged Roussell with first degree murder, La.Rev.Stat. Sec. 14:30. Roussell pleaded "not guilty and not guilty by reason of insanity." 2 The day before trial began, the state dropped the charge to second degree murder, La.Rev.Stat. Sec. 14:30.1, and Roussell changed his plea to simply "not guilty." The jury found Roussell guilty of manslaughter, La.Rev.Stat. Sec. 14:31, a responsive verdict to a charge of second degree murder, and the court sentenced Roussell to the maximum term for manslaughter in Louisiana--twenty-one years, id.--plus two more years for using a firearm in an offense, La.Rev.Stat. Sec. 14:95.2.

Roussell appealed to the Louisiana Supreme Court, which affirmed the conviction and sentence. State v. Roussel, 3 424 So.2d 226 (La.1982). Roussell then sought the writ of habeas corpus from the United States District Court for the Eastern District of Louisiana. 28 U.S.C. Sec. 2254. That court denied Roussell's petition; on appeal, this Court dismissed Roussell's petition for failure to exhaust his state remedies. Roussell v. King , 762 F.2d 1002 (5th Cir.1985). Roussell then collaterally attacked his conviction and sentence in the state courts without success, and thereafter filed this, his second federal petition. This second petition raises only two issues: (1) the state trial court's refusal to permit testimony from a psychiatrist that Roussell's inability to remember events just after the shooting was caused by repressive amnesia; and (2) the state trial court's alleged reliance on an assertedly improper factor--that court's view that the evidence was more consistent with second degree murder than manslaughter--in assessing the maximum penalty for manslaughter.

The court below rejected Roussell's petition. As to the first issue, the court held that the Sixth Amendment was not violated by exclusion of the psychiatrist's testimony because the psychiatrist had no direct knowledge of the facts of the offense and "could not add any fact or opinion which would effect [sic] Roussell's guilt or innocence." Regarding Roussell's second claim, the district court held that the state sentencing court was not under the misimpression that the jury had convicted Roussell of second degree murder; therefore, the sentence was not based on false assumptions, or any other constitutionally infirm rationale.

Discussion

We will discuss each of Roussell's contentions in turn.

I. Psychiatric Testimony

Roussell testified in some detail regarding events up to and including the moment he heard the shot. However, he claimed to be unable to remember events in the moments starting just after the shot and continuing until he was pinned on the trailer floor by Mitchell. In anticipation of proving

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an insanity defense, Roussell had been examined by three psychiatrists. One of these, Dr. Scrignar, would have testified at trial that in his opinion Roussell was suffering from repressive amnesia, a deficiency that prevented him from remembering the events in that brief interval of time after the shot. Dr. Scrignar would have testified that he had attempted unsuccessfully to alleviate Roussell's amnesia with hypnosis and drug therapy. Roussell's counsel stressed repeatedly to the state trial court that Dr. Scrignar's testimony was not proffered on the issue of guilt or innocence, and acknowledged that the trauma causing Roussell's memory loss could arise from either an accidental or intentional shooting. The psychiatric testimony also was not proffered to prove Roussell's mental state at the time of the killing. As the Louisiana Supreme Court observed in affirming Roussell's conviction, he "only sought to introduce the evidence on the issue of credibility." 424 So.2d at 229. Dr. Scrignar was expressly proffered for the sole purpose of corroborating Roussell's testimony as to his memory loss. Roussell speculates that his credibility had been damaged by his claim not to be able to remember the events right after the shooting. The theory is that by corroborating Roussell's claim of memory loss, Dr. Scrignar would have bolstered Roussell's general credibility, and thus the jury would have been more likely to believe Roussell's denial of motive or intent to kill his wife.

The state trial court prohibited Roussell from calling Dr. Scrignar. On appeal, the Louisiana Supreme Court affirmed. 424 So.2d at 228-30. Article 651, La.Code Crim.Proc., prohibits evidence of the defendant's "insanity or mental defect at the time of the offense" unless the defendant pleads not guilty by reason of insanity, and the Louisiana Supreme Court had held in State v. James , 241 La. 233, 128 So.2d 21 (1961), that amnesia is a mental defect. In light of article 651 and James, the only real question was whether Roussell's amnesia existed "at the time of the offense." Over a dissent by Justice Calogero, joined by Justice Dennis, pointing out that amnesia "is a condition that occurs after the event, not before it or even simultaneously with it," 424 So.2d at 232, the court majority "infer[red] ... that defendant's amnesia as to the shooting began at the time of the offense." 424 So.2d at 230. Therefore, held the court, the exclusion of Dr. Scrignar's testimony was proper under state law. 4 Our role does not permit us to review this interpretation of state law. Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir.1980); Passman v. Blackburn, 652 F.2d 559, 568 (5th Cir.1981), cert. denied , 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982). States have leeway to choose their own rules of evidence, and those rules yield only when they "come[ ] into conflict with a fundamental constitutional right." Braswell v. Wainwright, 463 F.2d 1148, 1154 (5th Cir.1972). Thus, we focus only on Roussell's contention that his Sixth and Fourteenth Amendments rights were violated by the exclusion under state law of Dr. Scrignar's testimony.

In pertinent part, the Sixth Amendment provides that in all criminal prosecutions the defendant shall "have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. The compulsory process clause is not limited to providing a subpoena power, but extends to the right to present evidence to the fact finder. Taylor v. Illinois , --- U.S. ----, 108 S.Ct. 646, 649-51, 98 L.Ed.2d 798 (U.S.1988). In Washington v. Texas , 388 U.S. 14, 87 S.Ct....

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