Alvord v. Wainwright

• Decision Date: 05 May 1983
• Docket Number: No. 81-366 Civ-T-BK.,81-366 Civ-T-BK.
• Citation: 564 F. Supp. 459
• Parties: Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

564 F. Supp. 459

Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.

No. 81-366 Civ-T-BK.

United States District Court, M.D. Florida, Tampa Division.

March 23, 1983.

On Motion to Alter or Amend Judgment May 5, 1983.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William J. Sheppard, Sheppard & Caruthers, P.A., Jacksonville, Fla., for petitioner.

James C. Smith, Atty. Gen., Carolyn Snurkowski, Asst. Atty. Gen., Tallahassee, Fla., Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent.

MEMORANDUM OPINION

KRENTZMAN, Senior District Judge.

Gary Eldon Alvord, a Florida state prisoner under sentence of death for a triple murder, petitions this Court for a writ of habeas corpus, 28 U.S.C. § 2254, attacking his conviction and sentence on numerous grounds.

In 1970, petitioner was tried for kidnapping and rape in Michigan, found not guilty by reason of insanity, and committed to the custody of the Michigan Department of Mental Health. In January 1973, Alvord escaped from Michigan's Ionia State Hospital and eventually came to Tampa, Florida. He was indicted on August 1, 1973 for the June 1973 murders of three women, and Thomas Meyers, Esquire, a part-time public defender in the Circuit Court for Hillsborough County, was appointed to represent him. The trial court found Alvord competent to stand trial. Alvord plead not guilty and took the stand at trial to present an unsupported alibi defense. The state presented circumstantial evidence, a statement made by Alvord upon his arrest, and the testimony of Alvord's girlfriend, to whom he had allegedly confessed the crimes. Petitioner was convicted on all three counts of first degree murder on April 4, 1974. Later that day, the court held the sentencing phase, at which Dr. Ames Robey, a psychiatrist who had treated Alvord in Michigan, was the only witness. The jury returned an advisory sentence recommending the death penalty, and the judge sentenced Alvord to death.

The conviction and sentence were affirmed by the Florida Supreme Court on direct appeal. Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). Petitioner's motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., was denied by a state circuit judge on August 27, 1979,¹ and that denial was affirmed by the Florida Supreme Court on April 9, 1981. Alvord v. State, 396 So.2d 184 (Fla.1981). Petitioner was scheduled to be executed on May 6, 1981.

Alvord petitioned this Court for habeas corpus and moved to stay his execution on April 21, 1981. The state's response was, and for the most part remains, that petitioner received a full and fair hearing in the state courts, and that the state court findings and conclusions must be presumed correct under section 2254(d), 28 U.S.C. This Court stayed petitioner's execution and denied the state's motion for judgment on the pleadings. Petitioner's motion for discovery on the issues of ineffective assistance of counsel and inadequate psychiatric examination was granted, and the Court conducted an evidentiary hearing on those two grounds on May 13 and 14, 1982. Depositions of Drs. Sprehe and Gonzalez were received in evidence, and Dr. Robey, trial counsel Thomas Meyers, and appellate counsel Richard Seymour each testified at the hearing. The parties submitted pre-hearing, post-hearing, and final memoranda.

Alvord bases his petition on twelve grounds. Two of those grounds raise issues that have for some time been pending in the courts of appeals. On April 28, 1982, the Eleventh Circuit ordered rehearing en banc in Ford v. Strickland, 676 F.2d 434 (11th Cir.1982), the case presenting as an issue the constitutionality of the Florida Supreme Court's review of nonrecord material in the course of considering capital appeals. The decision of the en banc court was released on January 7, 1983. 696 F.2d 804 (11th Cir.1983). Also, on May 14, 1982, Unit B of the former Fifth Circuit ordered rehearing en banc in Washington v. Strickland, 673 F.2d 879 (5th Cir. Unit B), rehearing granted, 679 F.2d 23 (5th Cir. Unit B 1982), a case presenting important issues underlying the claim of ineffective assistance of counsel asserted by petitioner herein.² The decision of the en banc court in Washington was rendered on December 23, 1982. 693 F.2d 1243 (5th Cir.1982). Resolution of this petition while Ford and Washington v. Strickland were pending would have been premature.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Representation at Trial

Petitioner raised his ineffective assistance claim on state collateral review pursuant to Rule 3.850, Fla.R.Crim.P. In denying petitioner's motion, the state court made certain findings of historical fact which this Court generally presumes correct, 28 U.S.C. § 2254(d), but the conclusion of the state court that petitioner received effective assistance of counsel is not to be presumed correct under 2254(d). Whether counsel has rendered effective assistance is a mixed question of law and fact, requiring this Court to apply sixth amendment principles to the historical facts of the case. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Sullivan v. Wainwright, 695 F.2d 1306, 1308 (11th Cir. 1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); Harris v. Oliver, 645 F.2d 327, 330 (5th Cir.1981).

The state court found, in addition to the facts recited above, that petitioner's trial counsel, Mr. Meyers, "was aware of Alvord's adjudication of insanity and that Alvord was presumed to remain incompetent until adjudicated otherwise." State v. Alvord, No. 73-1398 (Cir.Ct. August 27, 1979) (order denying post-conviction relief) (hereafter, Rule 3.850 Order).³ The collateral review court also found that Mr. Meyers moved the trial court on several occasions to appoint Drs. Sprehe and Gonzalez to examine his client and that counsel tried in vain to persuade Alvord to cooperate. Alvord did not want to raise the insanity defense, however, and refused to cooperate each time the doctors were appointed to examine him. Finally, the court stated that "no proof of Alvord's prior adjudication was ever submitted to the Court and no such defense was raised." Rule 3.850 Order at 10. This Court presumes correct each factual finding made by the state court, with the single exception of its finding that no proof of the Michigan adjudication was submitted to the trial court.⁴ Nevertheless, additional facts not inconsistent with the state court's findings are relevant to petitioner's sixth amendment claim.

1. Background and Trial.

Petitioner was in and out of mental hospitals in Michigan since the age of 13; his mother also suffered from mental illness. He was charged with the kidnapping and rape of a ten-year-old girl in 1967, and spent more than two years in a mental institution before being declared competent to stand trial. In 1970, he was adjudicated not guilty by reason of insanity by a Michigan judge after a bench trial.⁵ Alvord was institutionalized and, in January 1973, he escaped from the Ionia State Hospital in Michigan. The murders were committed in Florida in June 1973, and Alvord was indicted on August 1, 1973.

Mr. Meyers was appointed to represent petitioner about two weeks after the indictment was returned.⁶ Mr. Meyers had tried some fifteen or twenty felony cases to a jury at the time of his appointment, but he had tried none in which an insanity defense was raised. Meyers Depo. at 69. This was one of the first capital cases tried in the Thirteenth Judicial Circuit under Florida's revised death penalty statute. Mr. Meyers was assigned three first degree murder cases during 1973, and was in trial in his first such case in the fall of that year. The attorney first saw his client in September 1973 for about fifteen minutes. Alvord refused to talk to counsel other than to ask him to collect all the evidence he could and to come back. Meyers Depo. at 11. Mr. Meyers learned from the prosecutor that Alvord had suffered from mental problems since an early age, had spent many years in mental institutions, and had been adjudicated not guilty by reason of insanity in Michigan. Meyers' subsequent pre-trial contact with his apparently uncooperative client was primarily at court hearings.

In early October, Mr. Meyers moved off the record for a mental examination of his client. See Trial Rec. at 164, 227. But see Trial Rec. at 4 (order to determine mental condition of defendant).⁷ On October 9, 1973, the trial court directed that Alvord be examined by two court-appointed psychiatrists, Drs. Sprehe and Gonzalez. Both doctors attempted to examine Alvord, but he refused to talk to them without his attorney present. At a competency hearing on October 12, 1973, the doctors described Alvord's response, but could give no opinions as to his mental state. Trial Rec. at 129-32. Mr. Meyers informed the doctors and the court of Alvord's six-year history in mental institutions whereupon both Doctor Gonzalez and the prosecutor stated that in similar cases in Florida the defendant was sent to a state hospital for observation. The court continued the hearing until October 19, 1973, when it stated that the prosecutor had suggested the defendant be sent to the state hospital for observation and that his Michigan records be obtained. Trial Rec. at 133-35. The prosecutor had also mentioned Dr. Robey as a psychiatrist who had treated Alvord for several years in Michigan.⁸ The hearing was continued until November 2, 1973, when the court announced its order committing Alvord to the Florida State Hospital for observation and examination. Trial Rec. at 136-37; see Trial Rec. at 10 (Order of Commitment). A month later, on December 6, 1973, the court set aside its...