Daniel v. Thigpen

• Decision Date: 25 July 1990
• Docket Number: Civ. A. No. 87-D-1334-E.
• Citation: 742 F. Supp. 1535
• Parties: George DANIEL, Petitioner, v. Morris L. THIGPEN, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

742 F. Supp. 1535

George DANIEL, Petitioner, v. Morris L. THIGPEN, et al., Respondents.

Civ. A. No. 87-D-1334-E.

United States District Court, M.D. Alabama, E.D.

July 25, 1990.

COPYRIGHT MATERIAL OMITTED

Malcolm R. Newman, Newman & Newman, Dothan, Ala., Bryan A. Stevenson, Atlanta, Ga., William J. Barker, Stradley, Ronen, Stevens & Young, Philadelphia, Pa., for petitioner.

Don Siegelman, Atty. Gen., John Gibbs, Asst. Atty. Gen., Montgomery, Ala., for respondents.

ORDER

DUBINA, District Judge.

In accordance with the Memorandum Opinion filed contemporaneously herewith, it is the ORDER, JUDGMENT, and DECREE of this court that the Amended Petition for Writ of Habeas Corpus be and the same is hereby GRANTED, and that the petitioner, George Daniel, be afforded a new trial within ninety days of the date of this Order.

MEMORANDUM OPINION

This is a death penalty case. There is before the court an amended petition for writ of habeas corpus filed herein by George Daniel ("the petitioner") on May 15, 1989, and an answer thereto filed herein by Morris L. Thigpen, Commissioner, Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit ("the respondents") on June 8, 1989. The parties have filed extensive memorandum briefs in support of their respective positions. In addition, the court conducted an evidentiary hearing on November 16, 1989.

I. FACTUAL BACKGROUND

On January 25, 1981, the petitioner left his home in Houston, Texas, to travel by bus to Alabama. He apparently had enough money to get as far as Union Springs, Alabama, where the police allowed him to spend the night in jail. A police vehicle took him to the outskirts of Hurtsboro, Alabama, the next day. He was seen wandering around Hurtsboro during the afternoon and evening of January 27, 1981. Later that evening, he entered the home of Willie B. Lindsay, and said he wanted a place to stay. When he did not leave after being told he could not stay at the Lindsay home, Lindsay went to a neighbor's home to call the police. Officer George L. Claypool responded to the call.

According to the testimony of witnesses, a struggle ensued between the two men when the officer attempted to get the petitioner into his patrol car. Most of the witnesses saw only that the two men began to fight, fell to the ground, and rolled into a ditch, after which gunshots were heard. Lindsay testified that he saw the officer hitting the petitioner with a blackjack in an effort to get him into the car. One witness, Vincent Alexander, testified that the petitioner took the officer's gun and fired four or five shots at him as he lay on the ground. The witnesses saw the petitioner run from the scene after the shots were fired. Marshall Dent then saw the petitioner enter the Dent home, where he was apprehended. A .357 magnum pistol was in his possession, which was the same type of firearm used by Officer Claypool. The officer died as a result of bullet wounds to the abdomen.

The petitioner's family contacted Marcel E. Carroll about representing him. Carroll filed a motion for preliminary hearing, but, when the petitioner was arraigned on February 12, 1981, Carroll did not appear. At that time, the trial court appointed J. Curtiss Bernard to represent the petitioner. The court received notice from Carroll on February 13, 1981, that he would provide no further representation unless he was retained by the petitioner's family. On April 3, 1981, Ruben K. King filed a notice of appearance on behalf of the petitioner after having been retained by his family. Bernard then indicated to the court that he would like to withdraw, but King asked the court to consider keeping Bernard in the case. On October 8, 1981, the court appointed both King and Bernard to represent the petitioner, and scheduled the case for trial on November 2, 1981. On October 19, 1981, King attempted to withdraw, relating to the court that the petitioner's family had sought to retain yet another attorney, Charles Price. The court replied by letter that if Price were retained and ready to proceed with trial on November 2, it would permit King to withdraw. The court also stated that it would expect King and Bernard to continue to represent the petitioner if Price was not prepared to try the case on November 2. King and Bernard represented the petitioner at trial.

Both of the petitioner's lawyers questioned his mental competence, and each filed a petition for psychiatric examination. The petitioner was examined on June 2 and June 11, 1981, by Robert A. Rose, Ph.D., a clinical psychologist, who recommended observation and further evaluation. The petitioner was admitted to Bryce Hospital¹ on August 7, 1981, where he was examined by Thomas L. Smith, M.D., a psychiatrist; tested by John H. Fancher, M.A., a psychologist II; and seen by Ed Seger, who purportedly had a Ph.D. in clinical psychology. Seger was subsequently discharged from Bryce in 1986 when it was discovered that he had falsely represented his credentials. The petitioner was discharged on September 15, 1981, with a final diagnosis of malingering. In addition to the diagnosis, the Bryce Hospital report to the trial court stated that the petitioner was not suffering from a mental illness at the time of his alleged criminal conduct, and that he was competent to stand trial and to assist his attorneys in preparing his defense.

Based at least in part upon the Bryce report, the petitioner's attorneys decided to abandon a contemplated insanity defense, and chose to proceed on the theory that he simply was not guilty. Although both lawyers continued to express doubts about the petitioner's mental competence, they did not request, nor did the trial court hold, a competency hearing. The record reflects little pretrial preparation. The only pretrial motions filed were a motion for the production of witnesses, the petitions for psychiatric examination referred to above, and a motion for continuance in order to have the petitioner evaluated. The attorneys stated that they visited Hurtsboro and that they interviewed members of the Daniel family about the petitioner's reported bizarre behavior before he abruptly left Houston.

The petitioner's trial began on November 2, 1981, in the Circuit Court of Russell County, Alabama. During the presentation of the state's case, the defense attorneys did cross-examine the state's witnesses, and made several objections to evidence sought to be admitted. During the course of the cross-examination of Alabama Bureau of Investigation ("ABI") agent Harold Newell, who took the petitioner's statement on the night of the shooting, King had Newell read the statement to the jury. It appears in the record as follows:

"I left Houston, Texas, on Sunday, January 25, 1981, by bus and went to Montgomery, Alabama. I asked the bus driver how much further could I go. The bus driver took me to the Police Station in Union Springs on Sunday, night time. I had been laid off from my job at Peir sic I Imports in Houston, Texas, where I was a fork lift driver. I came to Alabama to look for some of my folks that live in Montgomery, Alabama. My mother's name is Lillie Daniel. The police in Union Springs let me spend the night there. I left the Union Springs Police Department Monday morning or Tuesday morning. I went to a cafe up the street and got some breakfast. I left there and walked up the street where I knocked on a window at a place of business and was looking at a woman. I must have knocked too hard on the window because it broke. Someone must have called the police, they came and picked me up and took me to jail. They let me out sometime after dinner. One of the police officers took me somewhere to look for a job. I don't know where he let me out. I remember sitting on the railroad tracks throwing rocks and some white dude asked me what I was doing. It was getting close to dark and he told me I couldn't hang around there. I started asking some people at a house about a place to stay. I remember talking to a man and woman there; they told me there was a hotel down the road. I walked down the road but couldn't find the hotel. I went back to the house and asked them again if they knew a place where I could stay. I don't remember any police officer trying to put me in the police car. I remember going under a house and then I was standing in the kitchen of the house. I don't remember how I got there. I don't remember a gun shooting. I blacked out, like lights blinking. I have never blacked out before. I remember a lot of police coming in the house to get me. I don't remember fighting with a police officer." Signed: "George Daniel."

(Tr. at 266-68.) The statement was apparently introduced because King felt that those were "not the words of a black man." (Tr. at 402.)

When the prosecution rested, the petitioner's attorneys filed an oral motion to exclude the state's evidence, which was denied.² The defense then rested without presenting any evidence. The petitioner's lawyers filed one handwritten requested jury charge, which stated as follows:

I charge you Ladies & Gentlemen of the Jury that if you believe the evidence in this case you must return a verdict of not guilty.

(Tr. at 490.) That charge was refused. The trial court charged the jury, in pertinent part, as follows:

In this case the defendant George Daniel is charged with this — and I will read it to you —

"That he did unlawfully and with malice aforethought kill George L. Claypool by shooting him with a revolver while the said George L. Claypool was a police officer for the City of Hurtsboro, Alabama, and while the said George L. Claypool was on duty or because of said officer's performance of his official duty, to-wit: effecting a lawful arrest of the said George Daniel; the killing being in violation of a particular code and section of the laws of the State of Alabama." Now, that is a charge of a capital felony under our laws. That sets forth what is a capital felony. There are a number of

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