935 F.2d 850 (7th Cir. 1991), 90-2530, Brewer v. Aiken

Docket Nº:90-2530.
Citation:935 F.2d 850
Party Name:James BREWER, Petitioner-Appellee, v. James E. AIKEN, Commissioner, Indiana Department of Corrections, and G. Michael Broglin, Director, Diagnostic Center, Plainfield, Indiana, [*] Respondents-Appellants.
Case Date:June 14, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 850

935 F.2d 850 (7th Cir. 1991)

James BREWER, Petitioner-Appellee,

v.

James E. AIKEN, Commissioner, Indiana Department of

Corrections, and G. Michael Broglin, Director,

Diagnostic Center, Plainfield, Indiana,

[*] Respondents-Appellants.

No. 90-2530.

United States Court of Appeals, Seventh Circuit

June 14, 1991

Argued Oct. 30, 1990.

Jessie A. Cook, Trueblood, Harmon, Carter & Cook, Terre Haute, Ind., for petitioner-appellee.

Linley E. Pearson, Atty. Gen., David A. Arthur, Deputy Atty. Gen., Federal Litigation,

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Indianapolis, Ind., for respondents-appellants.

Before COFFEY, EASTERBROOK and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

James Brewer was convicted of murder February 17, 1978, after a jury trial and was sentenced to death on March 1, 1978, in accordance with the jury's recommendation. After exhausting his state court remedies, see Brewer v. State, 496 N.E.2d 371 (Ind.1986) (Brewer II ), Brewer petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court rejected Brewer's assertion that the guilt phase of his trial was constitutionally defective, but found that Brewer received ineffective assistance of counsel during the penalty phase of his trial, and the judge entered an order granting the writ of habeas corpus unless the State of Indiana provided Brewer a new sentencing hearing within 90 days. The district court ordered a permanent stay of execution pending the outcome of the new sentencing hearing. We affirm.

I. BACKGROUND

The facts underlying Brewer's murder conviction are uncontested on appeal. About 5:00 p.m. on December 4, 1977, Brewer and an accomplice, Kenneth Brooks, gained entrance into the Skirpan residence in Gary, Indiana, by representing that they were police detectives investigating an accident involving one of the Skirpan cars. Once inside the house, the two well-dressed men announced a robbery and held the family at gunpoint. During the robbery, Brewer fatally wounded 29-year old Steven Skirpan.

During the investigation witnesses identified Brewer as the man who, along with Brooks, perpetrated an armed robbery of a gas station at 4:30 p.m. and three other armed robberies in an apartment building about 7:45 p.m. earlier during the day of the Skirpan murder. Nonetheless, when questioned by law enforcement officers Brewer initially denied being present during the Skirpan murder and later informed his court-appointed attorney that he was at his girlfriend's house when Brooks and another man robbed the Skirpans in their home. Brewer asked his attorney to present his girlfriend and another woman as alibi witnesses at trial, but shortly before trial he informed his attorney that he had participated in the Skirpan robbery and also that he had written a letter to his girlfriend instructing her and her friend to present a fictitious alibi. In spite of the fact that Brewer's counsel had knowledge that the two alibi witnesses would provide perjured testimony, he called both women to testify. Upon cross-examination, it became evident that the alibi had been contrived.

The jury reached a verdict of guilty in short order, and the trial moved into the sentencing phase. Although Brewer's counsel was an experienced criminal defense attorney, he was unaware that the sentencing hearing would immediately follow the guilt phase, but it should be pointed out that Brewer was the first defendant prosecuted under the new Indiana death penalty statute. Shortly after the guilty verdict, the judge held an informal conversation with the prosecutor and the defense counsel at which time they discussed the method of procedure to be followed during the sentencing phase of the newly instituted bifurcated trial procedure. During this conference defense counsel requested a continuance of a week or more for the purpose of collecting his thoughts in preparation for the penalty phase and to follow up on information he had just received regarding Brewer's extensive psychiatric history and problems commencing with his boyhood. According to the trial judge's recollection of counsel's informal request, the court refused because the jury was sequestered. This off-the-record conference occurred about 2:45 p.m. Friday afternoon, and the court reconvened for the penalty phase on the following day around 9:00 a.m.

Since the defense attorney had so little

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time to prepare for the sentencing phase, 1 he stated he was unable to verify and investigate the information he received regarding Brewer's mental history. Under the court order to proceed at once, the defendant's counsel felt that his only hope of avoiding a jury recommendation of the death penalty would be to "humanize" Brewer in the eyes of the jury through putting him on the stand as a truthful witness denying that he was the one who pulled the trigger at the time of the murder, as he (defense counsel) believed that the jury was undecided as to which robber shot Skirpan. Brewer's counsel waived opening argument at the penalty phase without explanation and deliberately chose not to present character witnesses, for he was of the opinion that placing the defendant's character at issue would do more harm than good. Based upon the discussion during the aforementioned informal conference among the prosecutor, defense counsel and the judge, Brewer's attorney believed that cross-examination would be limited in scope and thus other crimes testimony would not be allowed. Relying on this expectation of limited cross examination testimony, counsel persuaded Brewer to testify at the penalty phase of the bifurcated trial despite the defendant's misgivings. Nevertheless, in view of Brewer's testimony that it was Brooks who shot Skirpan, the court ruled that questions concerning another robbery in which Brewer and Brooks participated that day would be admissible only as to the question of impeachment. While being questioned concerning the robbery, which occurred earlier on the date of the Skirpan murder, Brewer admitted having knowledge that Brooks would shoot at people during the course of a robbery because of his conduct during the shooting incident in the earlier robbery that day. Brewer on cross-examination also admitted that he fired his pistol at the police officers who arrested him and that he had been deliberately vague in telling the police where his alibi witness lived because he wanted the opportunity to speak with her and give her the false alibi before the police had an opportunity to question her. Brewer's cross-examination was also damaging concerning the details of the murder and robbery, including the fact that Brewer had to step over the body of the murder victim in order to perpetrate the robbery. Despite the devastating testimony and his recently acquired knowledge regarding Brewer's psychiatric problems, defense counsel chose not to question Brewer about his mental history while he was on the stand, and in counsel's closing argument he merely focused on the issue of who actually pulled the trigger and highlighted the evidence that he believed demonstrated that Brooks shot Stephen Skirpan. So in their sentencing deliberations, the jury was faced with a self-admitted prevaricator (Brewer confessed concocting the alibi) and a thief who was willing to shoot at police and walk over a murder victim's body to commit another crime. For some reason Brewer's attorney decided not to present any mitigating evidence to counter the negative impression this evidence would most certainly have engendered. To the surprise of no one, the jury recommended the death sentence.

As part of the presentence investigation, the court ordered a psychological exam of Brewer "to determine the performance I.Q. of the defendant." The psychologist's report stated that he

"examined Mr. James Brewer and tested him with the Wechsler Adult Intelligence Scale (WAIS), the Rorschach and the Thematic Apperception Test.

"His intelligence as obtained on the WAIS is:

Verbal I.Q. 73

Performance I.Q. 82

Full Scale I.Q. 76

"He reaches into the dull-normal range of intelligence in some of his tests but has overall intellectual functioning in the borderline range of intelligence. That is,

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that range which includes the lowest seven (7%) percent of the population.

"In his personality as obtained on the other two tests, he reveals a shallow mind that perceives the superficial aspects of reality. Does not analyze. Does not reflect within himself the events of his life or of others. Consequently, he lacks real understanding. He simply acts on feeling and impulse. He appears to live pretty much on the moment without thinking ahead nor looking much behind. Consequently, he tends not to learn from his experiences."

The presentence investigation report included information to the effect that Brewer had received two or three shock therapy treatments at about the age of 10, that he participated in a number of psychiatric conferences (the presentence report failed to mention the psychiatric reports generated from the interviews) and that he failed to complete the 9th grade in school.

After considering the jury's recommendation as well as the presentence report, the state judge sentenced Brewer to death:

"Having given this matter thoughtful and prayerful consideration for the last ten (10) days, having undertaken a truly agonizing reappraisal of my personal values and judgments, and being fully cognizant of the awesome responsibility that is mine, I am now prepared to follow the recommendation of the jury.

"James Brewer was introduced to the system at the age of 11. Eleven years old, he was committed to Indiana Boys' School. He was there for a short period of time, paroled, returned again as a parole-violator at age 12. Paroled for a...

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