888 F.2d 530 (8th Cir. 1989), 88-2359, Smith v. Armontrout

Docket Nº:88-2359.
Citation:888 F.2d 530
Party Name:Gerald SMITH, Appellant, v. William ARMONTROUT, Appellee.
Case Date:October 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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888 F.2d 530 (8th Cir. 1989)

Gerald SMITH, Appellant,


William ARMONTROUT, Appellee.

No. 88-2359.

United States Court of Appeals, Eighth Circuit

October 17, 1989

Submitted May 8, 1989.

Rehearing and Rehearing En Banc Denied Jan. 2, 1990.

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[Copyrighted Material Omitted]

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C. John Pleban, St. Louis, Mo., for appellant.

Stephen D. Hawke, Jefferson City, Mo., for appellee.

Before ARNOLD, JOHN R. GIBSON and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

Gerald Smith is under sentence of death for the murder of Karen Roberts, which occurred in St. Louis, Missouri, in 1980. He brings this petition for habeas corpus under 28 U.S.C. Sec. 2254, claiming that both his conviction and his sentence violate the Constitution of the United States. The District Court 1 denied the petition. Smith v. Armontrout, 692 F.Supp. 1079 (W.D.Mo.1988). Smith appeals. In addition, after the appeal was filed, new court-appointed counsel filed a motion to remand the case to the District Court, seeking to raise new contentions that had not been included in the habeas petition as filed. We affirm the judgment of the District Court, denying the writ, and also deny the motion to remand. As soon as the rehearing process in this Court has run its course, the stay of execution previously entered, Smith v. Armontrout, 865 F.2d 1515, 1516 (8th Cir.1988) (order), will be dissolved.


We start with a summary of the facts of the crime, in order to place the legal arguments in context. By "facts" we mean what a reasonable jury could have found, on the basis of substantial evidence in the record of the trial, which took place in the Circuit Court of the City of St. Louis in 1981. The opinion of the Supreme Court of Missouri on Smith's direct appeal ably summarizes the record, and we can do no better than to set forth its statement, State v. Smith, 649 S.W.2d 417, 420-21 (Mo.) (en banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983):

From the substantial evidence adduced supportive of the verdict, the jury could reasonably have found the following: At approximately 8:00 p.m. on September 8, 1980, defendant and Dana Osia, a girl he had known about four years and had been dating for a week, went driving in Dana's car. After an hour or so, defendant announced his intention to visit a person who he said was his cousin. Defendant told Dana he was going to hurt this person because she had once given him "the clap." At approximately 9:30 p.m., defendant and Dana drove to the home of Karen Roberts, where defendant invited Karen to take a ride. Initially she refused, but defendant persuaded her to go. After driving about for another hour or so, the three stopped near defendant's house and talked for awhile. During the conversation, defendant asked Dana four times to go home, and

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Dana finally agreed. Although Dana offered to drive Karen home, Karen was persuaded to stay by defendant, and Dana left alone.

Sometime after Dana's departure, defendant left his house with Karen Roberts to walk her home. According to defendant's subsequent confession, during the walk they argued as to whether she had given him venereal disease. At one point, Karen cursed him and defendant pushed her to the ground. When she got up, Karen was holding a heavy metal bar which she swung at the defendant. Defendant blocked the blow and jerked the bar away; when Karen started to run, defendant gave chase. Carrying the metal bar, defendant chased Karen Roberts across the street, north for half a block, east for half a block to some railroad tracks, north along the tracks for a full block and across another street, where he finally caught her. There, defendant bludgeoned Karen to death with the metal bar. An autopsy on the body of Karen Roberts revealed massive head injuries. The back of her skull was caved in; she suffered six head lacerations, skull fractures "too numerous to count," and multiple contusions and bruises of the brain beneath the skull. These injuries were consistent with multiple blows, inflicted with the heavy iron bar identified as the murder weapon. Any one of the blows could have rendered Karen unconscious or caused her death. Karen also suffered abrasions on her face and contusions of the shoulder, arm, hip and thigh. On a scale of "one to ten," an expert witness rated the seriousness of Karen's injuries at "eight."

Dana next saw defendant on the evening of September 9, 1980, when she, defendant and defendant's brother, Eugene, went driving. At one point, Eugene left the car to go into a liquor store, and defendant told Dana he had killed the girl they picked up the night before, which was why he had wanted her to leave. When Dana did not believe he had committed a murder, defendant showed her a newspaper story about the killing. Nine days later, defendant was arrested. After receiving Miranda warnings and executing a waiver, defendant initially denied the murder but later admitted, "I killed the bitch" and gave a detailed statement of the events described above. Defendant also accompanied police officers to the murder scene, where he assisted in locating and identifying the iron bar he used to kill Karen Roberts. The bar was approximately 18 1/2 inches long and weighed about eight pounds. Defendant was charged with capital murder.

Other facts will be stated, or aspects of the record amplified, as necessary in connection with our discussion of the various constitutional arguments petitioner now asserts.


The District Court's thorough and comprehensive opinion, obviously reflecting a painstaking and thoughtful consideration of all the issues, makes our task easier. We do not have a great deal to add to it. We will discuss, however, the major arguments advanced on appeal against the District Court's reasoning and conclusions. 2


Petitioner argues that his trial counsel was constitutionally ineffective

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in two respects: 3 (1) in not offering in evidence records of petitioner's treatment, before the murder, at Alexian Brothers Hospital in St. Louis; and (2) in not presenting evidence to dispute the damaging admissions in a letter that petitioner wrote, before trial, to the St. Louis Globe-Democrat.

  1. At trial, petitioner's main defense was "diminished capacity"--that, because of a personality disorder, he lacked the ability to deliberate or premeditate, to form the mental state necessary to commit the crime of murder. Through counsel, he admitted killing Karen Roberts, Trial Transcript (T.Tr.) 618, and told the jury that at most they could convict him of murder in the second degree. (In fact, Smith himself has now admitted, under oath, that he killed Ms. Roberts. He did so last year, at the evidentiary hearing before the District Court in this habeas case. 4 This fact makes all the more astounding some of the arguments now made in the Motion to Remand.) The principal witness in support of the defense was Sadashir Parwatikar, M.D., a psychiatrist. He testified that Smith suffered from "borderline personality disorder." 5 This diagnosis describes someone who, in reaction to particular experiences--in Smith's case, a tragic history of severe child abuse--behaves very impulsively, either acting or speaking on the spur of the moment without calculating the long-term effects on himself. This disorder, Dr. Parwatikar thought, made it either impossible or difficult for Smith to plan the killing. Therefore he was guilty of only manslaughter, or at any rate nothing worse than second-degree murder.

    In giving this testimony at trial, Dr. Parwatikar did not refer to, nor did trial counsel offer in evidence, records of Smith's treatment, in 1979 and 1980, at Alexian Brothers Hospital. These records, Smith now claims, would have aided his defense, and trial counsel was constitutionally ineffective for not discovering and using them. The records, which are now before us as an exhibit to Dr. Parwatikar's testimony at the habeas hearing, contain a wealth of detail about Smith's history and condition. They contain comments from physicians at the hospital of which the following are typical: Smith has "a tremendous problem with a severe paranoid personality disorder with almost no control over hostility or aggressive activity." H.Tr. 11. Smith is not psychotic, but "his problem with chronic obsessive thinking of hostile thoughts and activity is a problem of mammoth proportions." Id. at 12. He "[m]ight [even] be a candidate for psychosurgery," id. at 13-14, that is, a frontal lobotomy.

    Trial counsel was John Putzel, at the time an Assistant Public Defender. He testified, and the District Court believed, that he had either seen the records before trial, or in some other way become familiar with their contents, for example, by talking with someone at Alexian Brothers. He discussed the Alexian Brothers treatment with Dr. Parwatikar, who told him he would take it into account in making his diagnosis, as indeed he did. (Dr. Parwatikar referred at trial to the fact that Smith had been admitted to Alexian Brothers.) The doctor never told Mr. Putzel he needed the records, nor asked to see them. Counsel decided not to offer the records in evidence, and not to examine Dr. Parwatikar explicitly about them, because the records contained a great deal that would (in his opinion) have hurt Smith in the eyes of the jury--accounts of arrests, incidents of violence, and statements evidencing a recalcitrant and unrepentant attitude. Notations

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    in the exhibit in question stated, among other things, that Smith had "little interest in changing his situation," H.Tr. 37, had "no ambition to change to a less volitile [sic] temprament [sic]," id. at 40, said "fear of prison did not affect him," id. at 41, and "showed no signs of remorse or worries."...

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