Stano v. Dugger

• Decision Date: 01 May 1990
• Docket Number: No. 87-3588,87-3588
• Parties: Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 898

901 F.2d 898

Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.

No. 87-3588.

United States Court of Appeals Eleventh Circuit.

May 1, 1990.

Mark Evan Olive, Georgia Resource Center, Inc., Atlanta, Ga., for petitioner-appellant.

Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, and FAY, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.

ANDERSON, Circuit Judge:

We review this case in banc primarily to give further consideration to two of Stano's claims: his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and his claim under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

Stano's first trial ended in a mistrial after the jury failed to reach a unanimous verdict. The major evidence against Stano at this first trial consisted of the confessions that Stano made on March 6, 1981, and August 11 and 12, 1981, to detectives Crow and Manis. In the second trial, Stano was found guilty of first degree murder of Cathy Scharf, and sentenced to death. The evidence against Stano in this retrial was substantially the same, with the addition of a jailhouse confession to inmate Clarence Zacke. The principal theory of the defense was that Stano tended to confess falsely. As set out more fully in part I of Judge Fay's opinion for the panel in this case, 883 F.2d 900, 903-04 (11th Cir.1989), Stano pursued his direct appeal and his post-conviction remedies under Rule 3.850 of the Florida Rules of Criminal Procedure, and then filed the instant Petition for Writ of Habeas Corpus in federal district court. The district court denied relief, and Stano appealed to this court.

The procedural posture of this case is that Gerald Stano has had the benefit of a limited evidentiary hearing only on his ineffective assistance of counsel claim, not on his other claims. There has been no evidentiary hearing, either in state court or in federal court, on Stano's Brady claim or his Henry claim.

If there has been no evidentiary hearing in state court on an issue raised on habeas corpus, one is required if the petitioner alleges facts which, if true, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). The petitioner will not be entitled to an evidentiary hearing when his claims are merely "conclusory allegations unsupported by specifics" or "contentions that in the face of the record are wholly incredible." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).

I. BRADY CLAIM

A Brady violation occurs where: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issues at trial. See United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). Suppressed evidence is material when "there is a reasonable probability that ... the result of the proceeding would have been different" had the evidence been available to the defense. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)) (plurality opinion of Blackmun, J.).

Specifically, Stano has alleged that the prosecution suppressed evidence that there was collusion between Crow, the police investigator; Donald Jacobson, Stano's defense attorney during the investigative stage; and Dr. Ann McMillan, the defense psychologist during the investigative stage. The alleged purpose of this collusion was to exploit Stano's mental vulnerabilities in order to coerce murder confessions, including confessions to the Scharf killing. Stano alleges that Dr. McMillan, at Jacobson's suggestion, gave Crow psychological information that would make this coercion more likely to succeed. He alleges that Jacobson assisted Crow in coercing the confessions, and that Crow used this information and assistance in his on-going elicitation of confessions. Stano alleges that Crow, obviously, knew of this collusion and the effect on Stano's confessions, and that such knowledge is imputed to the state.

Stano's petition and supporting appendices allege the following. ¹ Stano was arrested on his first murder charge in April 1980. J.W. Gadberry, the officer who had first brought Stano in, participated in the early investigation, which was led by Sergeant Paul Crow. Soon after Stano's arrest, Don Jacobson was appointed as Stano's attorney, and he hired Dr. Ann McMillan as a defense psychologist. Both Crow and Jacobson were interested in writing books about their work with Stano if he turned out to be a serial killer. ² There is evidence that Crow even hired a literary agent. ³

Jacobson asked Dr. McMillan to find out if Stano was a serial killer and indicated that he was not interested in representing Stano unless he was. Jacobson instructed Dr. McMillan to tell Crow how best to interrogate Stano in order to elicit confessions, by exploiting Stano's mental vulnerabilities. ⁴ Crow used that psychological information in interrogating Stano, as described below. ⁵ He maintained close contact with Stano day after day and deprived him of contact with others. There were frequent long interrogation sessions at which Crow would not allow anyone else to be present. ⁶ Crow stated to a freelance writer that he could lead Stano to the correct result and that he would rehearse confessions with him. ⁷ Gadberry, the police detective, was with Stano at the time of an early murder confession in another case and stated that Crow led Stano to the body, not the reverse. ⁸

Jacobson, an ex-FBI agent who also did some legal work for members of the police department, worked extensively with Crow and the state attorney. He often allowed members of the police investigatory team to interrogate Stano outside the presence of counsel. ⁹ Jacobson helped formulate the questions Crow would address to Stano. They urged Stano to confess to more killings in order to become eligible for an insanity defense. ¹⁰ Jacobson also advised Stano's parents to talk freely with Crow and Dr. McMillan. ¹¹

The information given by Dr. McMillan to Crow included Stano's psychological vulnerabilities. There is psychological evidence that Stano was susceptible to strong authority figures who relied on manipulation and that he could not appreciate the consequences of his confessions. Dr. McMillan now admits that she advised Crow to play on Stano's "grandiosity." ¹² Other evidence suggests that Stano was likely to confess in order to gain attention. Gadberry, who was present at the early stage of the investigation, felt that Stano had an abnormal need for attention and affection due to mental illness, and that Crow exploited this. Another detective, who worked with Crow on another Stano murder investigation approximately eight months before the first Scharf confession, believed that in making confessions Stano "got carried away by delusions of grandeur." ¹³

Stano's first murder confessions to Crow (relating to other killings) occurred in April and May of 1980. In May and June of 1980, Crow and Detective Lehman interviewed Stano in the Van Haddocks murder. The transcript of these interviews, at which counsel is not present, includes instances of promises, ¹⁴ threats, ¹⁵ and coaching. ¹⁶

Stano has alleged that the collusion between Jacobson, Dr. McMillan, and Crow continued and tainted the confessions to the Scharf killing on which the instant conviction was based. In March 1981, Crow, Jacobson, and Dr. McMillan met with Stano's father, whom Jacobson had advised to cooperate with Crow. ¹⁷ They asked Mr. Stano to convince Stano to confess to more killings. He was told that more confessions were necessary to save Stano's life, because if a pattern of insanity were established Stano would not be executed. Crow then gave Mr. Stano specific information relevant to various murders to use in asking Stano to confess. When Mr. Stano met with his son, Mr. Stano cried and begged Stano to confess, explaining the insanity theory to him and encouraging him to talk to Crow about other murders. Stano asked his father to contact Crow; a few days later, on March 6, 1981, Stano gave his first confession to the Scharf killing.

The evidence of collusion and coercion by Crow continued through the period of the second confession, which occurred on August 11 and 12, 1982. Crow had continued working with Stano on pending cases through late 1982. Detective Manis was contacted by Crow to the effect that one of Stano's confessions matched Manis's pending Scharf case. In January 1982, Manis, at Crow's suggestion, spoke to Stano, who denied committing the Scharf murder. ¹⁸ Crow continued to visit Stano often at the prison during this period. In April, Crow initiated another meeting between Stano and Manis, but when Manis arrived, Crow had been inside and said that Stano would not talk. ¹⁹ During this entire time period, Crow and Stano were communicating: in June, Stano wrote to Crow and said he wanted to help by "telling you what you want to know about anything," and asked for contact with Howard Pearl, a public defender. ²⁰ In July, Jacobson instructed him to make "a clean breast of everything" and that Crow was his best source; this letter had a covert copy to Crow. ²¹ On August 10, Stano was transferred to Crow's jail, ²² and a memo was circulated restricting access to Stano to Crow only. ²³ On August 11, Manis interviewed Stano for 1 1/2 hours, with Crow present part of the time; on August...