Collins v. Lockhart, PB C 81 271.

• Decision Date: 28 May 1982
• Docket Number: No. PB C 81 271.,PB C 81 271.
• Parties: Carl Albert COLLINS, Petitioner, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

545 F. Supp. 83

Carl Albert COLLINS, Petitioner, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB C 81 271.

United States District Court, E. D. Arkansas, W. D.

May 28, 1982.

Thomas M. Carpenter, Jeffrey M. Rosenzweig, Little Rock, Ark., for petitioner.

Victra L. Fewell, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

OVERTON, District Judge.

Carl Albert Collins filed a petition for habeas relief asking this Court to vacate his death sentence and order a new trial. Petitioner was convicted of capital felony murder in December, 1974, and was sentenced by a jury to death by electrocution. His case has been the subject of several appeals.¹ The most recent order of execution was stayed pending resolution of this petition.

A threshold problem is presented by the recent decision in Rose v. Lundy, ___ U.S. ___, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Respondent's initial pleading was filed before the Rose decision when case law clearly established that petitioner in this case had effectively exhausted his state court remedies. After Rose, respondent moved to dismiss the petition alleging that Collins had not presented some of the issues in the petition to state court and, therefore, had not totally exhausted state court reviews of all of his claims. This argument was founded on the contention that theoretically the Arkansas appellate courts might entertain successive Rule 37 petitions which present new allegations of constitutional magnitude.

Before the evidentiary hearing on petitioner's pending writ, however, respondents' attorney conceded that as a practical matter petitioner had exhausted his state remedies on all issues. The Court is convinced respondent's concession is well taken.²

Following an evidentiary hearing and the submission of briefs by the parties, the Court enters its findings of fact and conclusions of law as follows:

I.

Petitioner principally contends he was denied effective assistance of counsel during the penalty phase of the trial because his attorneys presented no evidence in mitigation. This general claim incorporates a number of specific alleged deficiencies and omissions. In order to put the issue in perspective, the Court will recite the factual situation faced by the trial attorneys as they prepared for trial.

Petitioner was charged with the murder of a 72 year old man. A principal witness for the prosecution was the victim's widow who was brutally beaten during the commission of the crime. The evidence of petitioner's guilt was, to say the least, conclusive. Petitioner fled the scene of the crime and was later captured in Tennessee after he kidnapped a man at gunpoint. The evidence at trial established his guilt of the offense beyond a reasonable doubt. The state also established beyond a reasonable doubt that the motive for the murder was robbery.³

Petitioner's trial attorneys were John Lineberger, Public Defender for Washington County, and John Baker, an Assistant Public Defender. Mr. Lineberger was an experienced criminal defense attorney who had participated in several murder cases in which the State had sought the death penalty. Mr. Baker, although somewhat less experienced than Mr. Lineberger, had trial experience in both murder and capital felony murder cases.

In preparation for the penalty phase of the trial, at least one or both defense attorneys performed the following tasks: they conferred with petitioner on a number of occasions; they employed two investigators who traveled to petitioner's home town to locate and interview potential witnesses; the investigators or attorneys interviewed all potential witnesses suggested by petitioner; they obtained the prosecutor's file; they submitted petitioner to examination by a psychiatrist and a psychologist; they obtained the results of an examination of petitioner at the Arkansas State Hospital; and they interviewed petitioner's mother, step-father, sister and brother-in-law, all in an effort to establish evidence in mitigation.

During the course of trial preparation, petitioner was not particularly helpful to the attorneys. He conveyed the impression that he was angry, volatile, short tempered and arrogant. He apparently refused to recognize or concede that a death penalty sentence was a real possibility, arguing to his attorneys that it was "unconstitutional" or "not in effect". Petitioner was not consistent in his attitude about the victim of his crime. On some occasions, he would tell his attorneys that Mr. Welch was a good man and that he could not understand why anybody would kill him. On other occasions, he would tell the attorneys that Mr. Welch deserved what he got.

The attorneys were not able to develop any information about petitioner's background which was helpful. As one of the attorneys described it, every time they thought some potential witness had helpful information on the mitigation issue, the same witness was found to know something about petitioner which proved to be a "monster in the closet".

Petitioner was one of many children from a poor family. He was neglected by his parents and subjected to abuse from his father. Beginning at the age of ten he was constantly in and out of State correctional institutions. He had an extensive juvenile record, which included an incident in which he shot his own grandmother who caught him burglarizing her house. He had a history of drug abuse. Petitioner had no significant history of school attendance or employment. The people who had taken an interest in him and offered some help in his earlier years had become discouraged and frustrated because of his lack of response. Dr. Jones, a woman in Collins' home town who took an interest in him when he was a youngster and tried to get him involved in church activities, was one such person who finally concluded that petitioner was incorrigible and "used" people.

Dr. Finch, the psychiatrist who examined petitioner for the trial attorneys, told them he was confident Collins was not insane and that he was "negatively impressed" by him. The psychologist and rehabilitation counselor who worked with Collins also told the attorneys they could provide no help in the mitigation phase of his case.

The efforts of the trial attorneys to develop mitigation evidence was further frustrated by a number of important factors. First, the petitioner had an unusual habit of giggling at inappropriate times. Second, none of petitioner's family was helpful, and his mother and step-father, Mr. and Mrs. Torix, refused to testify and did not want to "get involved" in the case. Third, the prosecutor was an experienced, capable trial attorney who had conducted an extensive investigation into Collins' background and was prepared to use the damaging information if the opportunity presented itself when issues were opened up by direct testimony from defense witnesses. The prosecutor was also aware of petitioner's arrogant attitude and short tempered personality trait which he was fully capable of exploiting on cross-examination. Fourth, the jury was composed of people from generally rural areas, and they had little patience with such "mitigating circumstances" as "drug abuse" and "deprived background". Last, at the time of trial, petitioner was 19 years old and had a rather benign, youthful appearance.

With this general background, the Court will turn to the allegations and suggested criticisms of the trial attorneys.

First: The failure to offer evidence in mitigation.

The attorney whom petitioner called as an expert witness testified at the evidentiary hearing that petitioner's trial attorneys should have "done something" in the way of providing evidence in mitigation and, specifically, should have put the petitioner on the stand to "beg for his life".

The Court cannot accept such a suggestion. Initially, the Court believes that the trial attorneys discussed with petitioner whether he should take the stand (in both guilt and penalty stages), and he told them he did not want to testify. Furthermore, the petitioner was potentially his own worst enemy as a witness. Finally, petitioner could not be counted on to "beg for his life" or express "remorse" for the crime. This was abundantly clear at the evidentiary hearing on the pending writ. At the hearing, petitioner was asked that if he had been permitted to testify at the trial, would he have begged for his life. He responded that he "probably would have". Upon further prompting, he said he "probably would have told the jury he knew everybody had to die sometime, but he wasn't ready to die yet". Given petitioner's temperament, personality trait of giggling at inappropriate times, erratic responses to the attorneys about the crime and his lack of "remorse", it is easy to understand why the attorneys were reluctant to put him on the stand. Given the potential uncertainties of petitioner's testimony, the chances of successfully "begging for the life" of a benign, youthful appearing 19 year old could best be left to an articulate, experienced defense lawyer in closing argument.

The suggestion that the trial attorneys failed to utilize petitioner's mother and step-father as witnesses in the mitigation phase is without merit. First, they refused to "get involved". The Court does not credit the testimony of Mr. and Mrs. Torix that the trial attorneys never really interviewed them or tried to get them to testify. More importantly, however, Mr. and Mrs. Torix had no evidence which would have been helpful. Their testimony at the evidentiary hearing was almost pathetic. They simply could not be used as witnesses to establish a "favorable" impression of Collins. Their few conclusory "good" statements would have easily been counterbalanced by devastating factual evidence available to the prosecutor. (Contrary to the assertion of petitioner, a motion in limine would not have effectively prevented the prosecutor from developing much of the...