Gardner v. Johnson
| Decision Date | 04 April 2001 |
| Docket Number | No. 98-11014,98-11014 |
| Citation | 247 F.3d 551 |
| Parties | (5th Cir. 2001) DAVID ALLEN GARDNER Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent-Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
[Copyrighted Material Omitted] Appeals from the United States District Court for the Northern District of Texas
Before JOLLY, WIENER, and STEWART, Circuit Judges.
Petitioner-Appellant David Allen Gardner appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He was convicted of capital murder in the course of a kidnaping and was sentenced to death. After exhausting his remedies at the state level, Gardner applied for a writ of habeas corpus which the district court denied. We granted a Certificate of Appealability (COA) limited to determining whether the State's psychiatrists' pre-examination warnings to Gardner were sufficient to ensure that his consent to be examined was "informed," thereby negating any potential violation of his Fifth Amendment right against compulsory self-incrimination that might otherwise have resulted from the punishment phase admission ---- over timely objection ---- of the assertedly prejudicial testimony of the psychiatrist who conducted that exam. As we conclude that this constitutional right was violated by the sentencing-phase admission of the testimony of the psychiatrist who examined Gardner on behalf of the State of Texas and that Gardner suffered prejudice from that violation, we reverse the decision of the district court, grant Gardner's petition for a writ of habeas corpus, and remand for entry of an appropriate judgment vacating his sentence and allowing the State a reasonable time within which to conduct a new, constitutionally valid sentencing proceeding or, alternatively, to resentence Gardner to life imprisonment in conformity with Texas law.
The facts of Gardner's crime of conviction are set forth in the opinion of the Texas Court of Criminal Appeals (CCA) disposing of Gardner's direct appeal.1 Gardner stopped and picked up a pair of fourteen-year old runaway hitchhikers, turned down a gravel road, and pulled off beside a bridge. After he told the teenagers to get out of the car, the three walked down an embankment where Gardner stabbed the male numerous times and left him for dead, then took the female to a nearby lake where he stabbed her numerous times, hit her in the head with a rock, and abandoned her as well. The male lived but the female died.
The state procedural history of Gardner's case is highly significant to our consideration today, so we review it in detail. During the sentencing phase of Gardner's murder trial, the State introduced only two evidentiary matters: (1) evidence that, some years prior to committing the instant crime, Gardner had fled the state of Kentucky after being released on bond while awaiting trial on two charges of theft and (2) testimony of Dr. Clay Griffith, who had, pursuant to a court order, conducted a pre-trial psychiatric evaluation of Gardner. After telling the jury that he had testified in "[p]robably three thousand" criminal trials,2 Dr. Griffith stated with "one hundred percent certainty" that, in his professional opinion, Gardner would "commit violent acts in the future," he was "super dangerous, and [he would] kill [again] given any chance at all." Dr. Griffith's testimony also included his professional opinion that Gardner would "continue to be violent even if placed in incarceration; and this would not prevent his violence and his brutality." And, added Dr. Griffith, Gardner "showed absolutely no remorse through the interview" and his tearful in-court confession of the murder was not credible because Gardner could "turn tears on and off" at will.
After his objection to the admission of Dr. Griffith's testimony was overruled and the psychiatrist was allowed to testify, defense counsel cross-examined Dr. Griffith extensively and also presented three favorable character witnesses on Gardner's behalf. Two of Gardner's former co-workers testified that he was a good employee and that they had never seen him exhibit any improper or violent conduct. The chief jailer of the Parker County Sheriff's Office, where Gardner was held while awaiting trial, testified that Gardner was a model prisoner who had never caused any problems.
The record shows that, even though Gardner was already represented by defense counsel, his attorney was not present either when Gardner consented to the psychiatric examination or at any time during the course of the examination itself. In fact, it is clear from the record that defense counsel had no knowledge that his client was to be examined and that the State made little or no effort to inform counsel in advance.3
During his testimony at the punishment phase of Gardner's trial, Dr. Griffith stated that he informed
the Defendant . . . what he was coming for, for a psychiatric examination; that this was ordered by Judge Hopkins. We informed him that [1] a report would have to be sent to the Court stating our findings so far as whether he was competent to stand trial, whether he, in our opinion, was sane or insane at the time of the alleged offense; [2] that in the State of Texas, there is no confidentiality so that anything that he might say could be used against him, or could be used for him at some later date in the courtroom (emphasis added).
Counsel for Gardner timely objected to the admission of Dr. Griffith's testimony at the punishment phase. In Gardner's direct appeal, counsel contested the admission of Dr. Griffith's testimony on the grounds that he had unlawfully induced Gardner's consent by telling him that the examination "could be used against him or could be used for him at some later date in the courtroom." Unpersuaded, the CCA affirmed Gardner's conviction and death sentence.
Gardner petitioned for a writ of habeas corpus in state court. He reiterated his objection to the admission of Dr. Griffith's testimony, this time emphasizing that the warnings given prior to the examination were constitutionally deficient under Estelle v. Smith4 because he was not adequately informed that the results of the exam could be used against him (1) during the punishment phase of the trial (2) to secure the death penalty.5 The state trial court, after entering its findings of fact and conclusions of law, recommended that habeas relief be denied. The CCA denied relief, stating that Gardner had already raised his Estelle v. Smith claim on direct appeal.
Gardner filed a second state habeas petition, stressing that he had not raised his Estelle v. Smith claim on direct appeal and that the earlier decision of the CCA was therefore erroneous. As a result, the CCA ordered a state trial court to conduct an evidentiary hearing to clarify the content of the warnings given to Gardner by Dr. Griffith prior to the psychiatric examination. At the hearing (held in 1995, fifteen years after Dr. Griffith's psychiatric examination of Gardner), Dr. James P Grigson,6 who had aided Dr. Griffith in conducting the examination of Gardner, testified to what he (Grigson) had told Gardner before the examination:
Prior to the beginning of the examination I introduced myself, my name, explained that I was a medical doctor, a psychiatrist. Introduced Dr. Griffith. Also explained that he was a medical doctor, also a psychiatrist. I did read him the court order signed by Judge Hopkins. And then I explained to him that it was not confidential because we would be sending back a report discussing it. I explained to him that the motion had been filed by the district attorney . . . to have the examination. And the purpose was to examine him in three areas, competency, sanity, and dangerousness. And I explained to him at that time that competency did mean whether or not he had sufficient present mental ability to consult with his attorney with a reasonable degree of rational understanding, and whether he had a factual as well as a rational understanding regarding the proceedings against him. He told me he understood that. And then I explained sanity or insanity was defined as whether or not he was suffering from a severe mental disease or defect that prevented him from knowing the difference between right and wrong. And he understood that. I told him dangerousness meant whether or not he represented a continuing threat to society (emphasis added).
In denying Gardner's habeas petition for a second time, the CCA ruled that his Estelle v. Smith claim was procedurally barred and, in the alternative, that it was without merit.7 Gardner filed a motion for rehearing, pointing out that the CCA had again incorrectly recounted the procedural history to come up with the conclusion of procedural bar. In apparent recognition of its mistake, the CCA granted Gardner's motion and issued a new opinion which corrected the factual errors of the previous opinion; the court did not, however, formally withdraw its earlier opinion, instead leaving it "on the books."
The CCA's new opinion reaffirmed its prior ruling that Gardner's Estelle v. Smith claim was procedurally barred, but the court failed to address the merits of his constitutional claim at all. Inasmuch as (1) all parties to the case agree that the procedural bar rule used by the CCA was novel and thus inapplicable on federal habeas review, and (2) the perfunctory discussion of the merits of Gardner's Estelle v. Smith complaint was never withdrawn, the CCA's scant reasoning and ruling on the merits is what is before us today.
Having exhausted the remedies available at the state level, Gardner filed a petition for a writ of habeas corpus in federal district court, which was denied. He appealed that decision to this court, and we granted Gardner's application for a COA...
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