Davis v. State of Ala.

• Decision Date: 13 June 1979
• Docket Number: No. 78-1165,78-1165
• Citation: 596 F.2d 1214
• Parties: James G. DAVIS, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1214

596 F.2d 1214

James G. DAVIS, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 78-1165.

United States Court of Appeals, Fifth Circuit.

June 13, 1979.

B. Don Hale (court-appointed), Cullman, Ala., for petitioner-appellant.

William J. Baxley, Atty. Gen., Carol Jean Smith, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GOLDBERG, Circuit Judge, SKELTON, ^* Senior Judge, and FAY, Circuit Judge.

GOLDBERG, Circuit Judge:

No one denies that James Davis, the appellant in this case, killed his wife. He pleaded not guilty by reason of insanity his only possible defense but a jury in Cullman County, Alabama, convicted him of first degree murder. After unsuccessfully pursuing his state remedies he petitioned for federal habeas corpus. He alleged that there were a number of constitutional errors in his trial. The United States District Court for the Northern District of Alabama dismissed his petition. When Davis appealed, we upheld the district court on several grounds but remanded for an evidentiary hearing to determine if Davis had received the effective assistance of counsel. Davis v. Alabama, 545 F.2d 460, 467 (5th Cir.), Cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). On remand a hearing was held before a magistrate, who recommended that Davis be given a new trial. The district judge disagreed and ruled against Davis. Davis appeals again. We reverse because we believe that Davis's trial attorneys failed to discharge their duty to their client. We remand for a further hearing on the question of whether their failure prejudiced Davis.

Approximately two months before his trial, two attorneys were appointed to represent Davis. On the day of the trial, they moved for a continuance. They said they needed time to develop an insanity defense. They cited their "heavy caseload" and the duties one of the attorneys had in the legislature. R. Vol. 1 at 73. Since Davis lived in California and was only visiting in Alabama at the time of the crime, See R. Vol. 2 at 27, 62-63, they wanted more time "mainly for the purpose of getting information from the State of California on this question of insanity." R. Vol. 1 at 74. To support their motion for continuance, they adduced only one piece of evidence the report of a psychologist named Dr. Dean who had recently treated Davis in California. They acknowledged, however, that they had known of Dr. Dean's treatments for several weeks, R. Vol. 1 at 68-69, 70-71, ¹ and in addition the report principally discussed Davis's alcoholism. The trial judge denied the motion for a continuance and the case immediately proceeded to trial.

At trial Davis's attorneys put on only the shell of an insanity defense. In Alabama, a variety of evidence can be used to prove insanity; the testimony of lay witnesses and general medical practitioners, as well as that of experts, is admissible. See e. g., Hamilton v. State, 281 Ala. 448, 203 So.2d 684, 686-87 (1967); Smith v. State, 263 Ala. 1, 82 So.2d 296 (1955). And while the record is unclear, it suggests that a considerable amount of evidence might have been used in support of Davis's insanity plea. ² But Davis's trial attorneys called exactly one witness the Sheriff who arrested him. He testified that Davis often seemed "quite fairly strange." The defense attorneys called no other lay witnesses. They called no medical witnesses, even though general practitioners, at least, were readily available in the area. See R. Vol. 1 at 83-84, 326. ³ All of this is undisputed, and it requires us to suspect at once that Davis has not received anything approaching the effective assistance of competent counsel. See Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967). See also Greer v. Beto, 379 F.2d 923, 925 (5th Cir. 1967); McCollum v. Bush, 344 F.2d 672 (5th Cir. 1965).

Indeed, even Davis's trial lawyers agreed that their representation of Davis was ineffective. They blamed the trial judge's refusal to grant a continuance for their deficient performance. But when we examine the denial of a continuance we must focus on "the reasons presented to the trial judge at the time the request is denied," Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964); See United States v. Uptain, 531 F.2d 1281, 1285-86 (5th Cir. 1976); McKinney v. Wainwright, 488 F.2d 28, 29-30 (5th Cir.), Cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (1974), and recognize that the question is traditionally within the discretion of the trial judge, See Ungar v. Sarafite, 84 S.Ct. at 850; Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Davis's defense attorneys' motion for a continuance was so unsupported by explanation or evidence that the trial judge cannot be faulted for denying it. When they made the motion and again at the evidentiary hearing on Davis's federal habeas petition, the defense attorneys acknowledged that they had known of Davis's mental problems from the start. See p. 1218 & n. 8 Infra. Nevertheless, they gave the trial judge virtually no explanation for their failure to "get ( ) information from . . . California" sooner. ⁴ They asked the trial judge to appoint a doctor and to allow him time to examine Davis, but they did not explain why they had failed to make that request, or to find a doctor themselves, ⁵ during the several weeks they were involved with the case. See R. Vol. 1 at 68, 83, 70.

Instead of blaming the judge we hold that Davis's trial attorneys were responsible for the inadequacy of Davis's defense. ⁶ We have often said that a defense attorney must be prepared to investigate and develop evidence on behalf of his client. "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and to a degree of guilt or penalty." American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function § 4.1 (tent. draft 1970). An attorney does not provide effective assistance if he fails to investigate sources of evidence which may be helpful to the defense. See, e. g., Rummel v. Estelle, 590 F.2d 103, 104-05 (5th Cir. 1979); Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978); Bell v. Georgia, 554 F.2d 1360, 1361 (5th Cir. 1977); Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972); Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970); King v. Beto, 429 F.2d 221, 224 (5th Cir. 1970), Cert. denied, 401 U.S. 936, 91 S.Ct. 921, 28 L.Ed.2d 216 (1971); Caraway v. Beto, 421 F.2d 636, 637-38 (5th Cir. 1970).

Davis's attorneys made practically no efforts to develop such information. This is undisputed. Davis had relatives in California who might have known, firsthand or secondhand, about his background of mental problems; but as the magistrate found, "(i)t is apparent that . . . defense counsel made no effort prior to the time of trial to secure the testimony of lay persons in California who had had an opportunity to observe irrational acts (by) Davis." R. Vol. 1 at 326. The attorneys might have telephoned California. They might have written to one of Davis's relatives there. ⁷ There is no evidence that they did anything of the sort. Similarly, we would have thought it axiomatic that defense attorneys considering an insanity defense should have their client examined by a psychiatrist or psychologist. In Alabama, as we have said, See p. 1215-1216 Supra, even a general practitioner can testify to the defendant's insanity. As the magistrate found: "Any local physician could have been called to testify as to his sanity. Yet the record strongly implies that no effort was made prior to trial to have Davis examined by a physician or to establish facts on which a physician could have based an opinion of Davis' sanity." R. Vol. 1 at 326.

Moreover, it was utterly clear from the start that an effective defense required some investigation. Davis's attorneys knew almost from the time they first met Davis that he was mentally unstable and had a history of mental problems. The district court suggested, See R. Vol. 1 at 337-38, that except for Dr. Dean's report the defense attorneys had no evidence indicating that Davis was insane; this suggestion is contradicted by the defense attorneys themselves. At the habeas hearing one of them acknowledged that Dr. Dean's report was "the main thing" but testified:

Q. (D)id you have . . . anything other than this one encounter with Dr. Dean in California?

A. "Yes. We had all kinds of information about him, about problems he had had when he was a kid on up. As a matter of fact, we wanted to go to other cases where he had convictions and where he had been in court before because of problems he had had from it while he was a small kid. As I recall, one where he and his brother took money from the offering plate at a church, for example . . . .

R. Vol. 2 at 55-56. This defense attorney appointed two months before the trial also testified:

We had known for a month or two that there was some insanity in his background or some problems where he had to see a psychiatrist.

R. Vol. 2 at 46. When they argued for a continuance the defense attorneys cited the facts of the crime itself as evidence of Davis's insanity. R. Vol. 1 at 74. They repeatedly said that their own encounters with Davis convinced them that he had mental problems. ⁸

Not only did the defense attorneys know that insanity was A possible defense; they apparently knew that it was Davis's only possible defense. Thus their failure to investigate cannot be excused by saying that it did not seem to be a very strong defense. In deciding not to develop the insanity defense Davis's attorneys effectively decided to put on no defense at all. We cannot say that such an approach amounts to adequate representation. See Bell v. Georgia, 554 F.2d 1360, 1361 (5th Cir. 1977)...