Bell v. Lynaugh

• Decision Date: 23 September 1987
• Docket Number: No. 87-2696,87-2696
• Citation: 828 F.2d 1085
• Parties: Walter BELL, Jr., Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1085

828 F.2d 1085

Walter BELL, Jr., Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent- Appellee.

No. 87-2696.

United States Court of Appeals Fifth Circuit.

Sept. 23, 1987.

Certiorari Denied Nov. 2, 1987.

See 108 S. Ct. 310.

Edward M. Chikofsky, New York City, for petitioner-appellant.

Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court For The Eastern District of Texas.

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Walter Bell, Jr., a state prisoner sentenced to die for a 1974 murder, appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254. We affirm.

FACTS AND PROCEDURAL HISTORY ¹

Ferd and Irene Chisum were found dead in their Port Arthur home on July 19, 1974.

Appellant was arrested the next morning and shortly thereafter confessed to killing the Chisums after officials confronted him with incriminating physical evidence lawfully found at his home. Appellant initiated contact with officials the following day and gave a second confession in which he admitted robbing the Chisums and raping Irene Chisum.

He was tried and convicted of Irene Chisum's murder and was sentenced to death in December 1974. That conviction was affirmed on appeal, Bell v. State, 582 S.W.2d 800 (Tex.Crim.App.1979), cert denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981), reh. denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1022 (1981), but was set aside during habeas review in 1984. Appellant was tried and convicted of Ferd Chisum's murder and was sentenced to death in March 1982. That conviction was affirmed on appeal, Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986), cert. denied, --- U.S. ----, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). After exhausting all of his state remedies, appellant petitioned for a writ of habeas corpus. The district court denied appellant's petition in a comprehensive and well-reasoned opinion, Bell v. Lynaugh, 663 F.Supp. 405 (E.D.Tex.1987). Appellant thereafter filed a timely notice of appeal.

Appellant challenges his detention on numerous grounds that we shall address in order.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant contends that he received ineffective assistance of counsel at the penalty phase of his trial because his attorney failed to present or explore psychiatric evidence of his mental retardation as a mitigating factor. ² For appellant to succeed on this claim, he must prove that his counsel's representation fell below an objective standard of reasonableness and that the result of the proceeding would have been different but for his attorney's unprofessional conduct. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 697 (1984); Lowenfield v. Phelps, 817 F.2d 285, 289-90 (5th Cir.), cert. granted in part, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987). Our scrutiny of appellant's counsel's performance under this standard is extremely deferential. Lowenfield, 817 F.2d at 290 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Further, with respect to counsel's duty to investigate, the duty at issue here,

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Lowenfield, 817 F.2d at 290 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

The federal district court held an evidentiary hearing on May 11, 1987, to address this issue. Appellant's mother, Bessie Mae Brown, and appellant's 1982 trial counsel, Harold T. Laine, Jr., were the only witnesses called. Appellant's mother testified that school officials determined that appellant had an I.Q. of 54 in the second grade and that appellant received a high school diploma marked "Special Education."

She stated that appellant had trouble getting admitted into the military because he could not pass the mental test, that appellant finally was accepted into the United States Marine Corps, and that because of his mental difficulties, appellant was "desirably discharged" from the Marine Corps after approximately one year. She testified that she informed Laine of appellant's mental state and his history with the Marine Corps, that she did not suggest to Laine that a psychiatrist or psychologist should be appointed to examine appellant, and that she told Laine that appellant was easily led.

Laine testified that he "reviewed the evidence in the first trial and the testimony, and we were in a unique position as far as we knew what the results were of the first trial; we knew what the results were at the punishment stage, and we knew the testimony." He also stated that he had familiarized himself with the medical testimony and clinical reports offered at the 1974 trial by Doctors John Nottingham, C.J. Ruilman, and Lyle Wharton, that when he inquired about additional psychiatric testimony for presentation at the 1982 trial he was told that only Doctors Nottingham and Brown would be appointed, ³ and that presentation of any psychiatric evidence at the 1982 trial would have harmed appellant's case because "we would have had absolute testimony that he was capable of conforming his actions to the law, and that he knew right and wrong, and that he had choices." In Laine's opinion, medical testimony presented at the 1974 trial "would have shown matters opposed to the position" which appellant was taking at the evidentiary hearing. He expressed concern that Nottingham's testimony would reveal that appellant had a diminished capacity to control his impulses and would be more prone to be a future danger to society, and that Wharton's testimony would indicate that appellant could control his impulses but chose not to. When asked why he did not have appellant re-examined in 1982 to learn if conditions had changed during the eight-year gap between the two trials, Laine testified that the 1974 electroencephalogram indicated no brain damage, the appellant conversed well with him, that he did not believe that any new test results would be favorable, and that the unfavorable results would be introduced into evidence. Laine admitted that he did not discuss the matter with any psychiatrist, including those who had testified at the 1974 trial.

Transcripts of the 1974 testimony of Doctors Nottingham (penalty phase), Wharton (penalty phase), and Ruilman (guilt phase) were introduced at the evidentiary hearing. Nottingham, a psychiatrist called by the state, had examined appellant in September 1974 and noted that appellant's electroencephalogram results were normal. In his opinion, appellant was competent to stand trial, was borderline retarded, and was responsible for his behavior. He also testified that individuals who are borderline retarded "tend to have a decreased impulse control" and are "more likely to give vent to [their] impulses than someone with a higher intelligence level." Nottingham also indicated that individuals easily led by others are "more likely to engage in violent criminal acts." He admitted, however, that he could not look into a "crystal ball" and offer to the jury any proof of appellant's future behavior. Nottingham asserted that appellant "is cognizant of the difference between right and wrong and able to conform his behavior to the expectations of the law and of society if he chooses[,]" that appellant "has the capacity to obey the law if he desires to do so ... [but because of] his decreased impulse control--he might be more likely than other people to engage in criminal behavior[,]" and that appellant "has the intellectual capacity to separate right from wrong and [is] able to determine the consequences of his acts and the nature of his acts and has the capacity to know that so that he can make those decisions and those distinctions."

Wharton, a psychologist testifying for the defense, said that appellant had an I.Q.

of 67 and was technically mentally defective. He also testified that based on appellant's recent "experiences," appellant "would be less inclined to wrongdoing" in the future than in recent months. As did Nottingham, however, Wharton also believed that appellant had the mental capacity not to engage in wrongful conduct if he so desired. Psychiatrist Ruilman, another defense witness, diagnosed appellant as having an I.Q. within three to five points of 67, which placed appellant in the upper range of retardation. Ruilman also observed that appellant's electroencephalogram results were normal.

The district court found reasonable Laine's decision to forego reliance on, or introduction into evidence of, any psychiatric evidence. It found that Laine neither neglected nor ignored the issue of appellant's mental state. Rather, Laine's decision reflected a deliberate trial strategy to avoid possible introduction of unfavorable 1974 testimony through rebuttal as well as to avoid possible proliferation of unfavorable evidence. Bell, 663 F.Supp. at 425. ⁴

The record clearly indicates that Laine did not fail to consider as mitigating evidence appellant's mental state. Thus the issue is whether Laine's decision not to offer mitigating evidence on appellant's mental state was reasonable. Mindful of the degree of deference due counsel's trial tactics under Strickland, we conclude that Laine acted...