Granviel v. Estelle

• Decision Date: 11 September 1981
• Docket Number: No. 79-1332,79-1332
• Citation: 655 F.2d 673
• Parties: Kenneth GRANVIEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 673

655 F.2d 673

Kenneth GRANVIEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Respondents-Appellees.

No. 79-1332.

United States Court of Appeals Fifth Circuit.

Sept. 11, 1981.

Frank W. Sullivan, III, Fort Worth, Tex., (Court-appointed) for petitioner-appellant.

Jack Greenberg, James M. Nabrit, III, Joel Berger, John Charles Boger, Deborah Fins, New York City, Anthony G. Amsterdam, Stanford Univ. Law School, Stanford, Cal., for amicus curiae NAACP.

Leslie Benitez, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

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

Before AINSWORTH and HENDERSON, Circuit Judges, and HUNTER ^*, District Judge.

HENDERSON, Circuit Judge:

The appellant, Kenneth Granviel, was convicted in the 213th Judicial District Court of Tarrant County, Texas, of the capital murder of two-year old Natasha McClendon and received the death sentence. The Texas Court of Criminal Appeals affirmed the conviction, Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), as well as the subsequent denial of state habeas corpus relief, Ex Parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978). Granviel then filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas. The case was transferred to the Northern District of Texas, Fort Worth Division, where the petition was denied. This appeal followed.

The gruesome details of the multiple rapes and murders which resulted in Granviel's conviction are fully explicated in the first opinion of the Texas Court of Criminal Appeals, 552 S.W.2d at 110-12. Hence, we gladly refrain from repeating them here. Suffice it to say that altogether, and in the course of two separate killing sprees, Granviel raped four women and stabbed to death five women and two children. He fully confessed to these crimes and relied solely on the defense of insanity at trial.

On this appeal, Granviel seeks habeas relief on four distinct grounds. We consider the problems he raises seriatim.

Granviel first maintains that the Texas capital sentencing statute, as applied in this case, violated his rights under the Eighth and Fourteenth Amendments. The bifurcated procedure employed by Texas courts in the trial of capital offenses is set out in Tex.Code Crim.Pro.Ann. art. 37.071. Under this system, the jury first decides the question of guilt or innocence. In the event of a guilty verdict, a separate sentencing proceeding is held in which additional aggravating and mitigating evidence may be introduced. The jury then answers the following questions on the basis of the evidence adduced at both phases of the trial:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. (Not applicable in this case.)

Art. 37.071(b). The state must prove each issue submitted beyond a reasonable doubt. Art. 37.071(c). If the jury answers each of these questions affirmatively, the death penalty is mandatory under the terms of the statute. A life sentence is required if the jury responds "no" to any one question.

Art. 37.071(e). ¹ In Granviel's case, the jury answered "yes" to the first and second questions and, accordingly, the trial court imposed the death sentence.

Granviel specifically contends that this sentencing procedure, as applied in his particular case, did not allow the jury to consider as a mitigating factor the evidence of his mental instability. Rather, his mental abnormality renders him a dangerous person who would admittedly "constitute a continuing threat to society" for purposes of answering the question contained in art. 37.071(b) (2). Therefore, according to Granviel, having failed to persuade the jury on the insanity defense, the evidence of his mental condition could only possibly have served as an aggravating factor at the penalty phase of the trial. ²

The Supreme Court has made quite clear that the sentencing authority in a capital case may "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, 990 (1978) (emphasis in the original); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). With this standard in mind, the Court held, in response to a similar challenge to art. 37.071(b), that the second statutory question, as construed by the Texas Court of Criminal Appeals, "allow(ed) the defendant to bring to the jury's attention whatever mitigating circumstances he may be a able to show." Jurek v. Texas, 428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 939 (1976). One such mitigating factor enumerated by the Texas court in its opinion in the Jurek case was "whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand." Jurek v. State, 522 S.W.2d 934, 939-40 (Tex.Cr.App.1975).

In the instant case, the Texas Court of Criminal Appeals met squarely Granviel's particular challenge to the statute, concluding:

Moreover, the jury in answering the special issues may properly consider all the evidence adduced during both the guilt and punishment phases of the trial. This could include evidence of a defendant's mental condition whether such evidence be characterized as an 'aggravating' or 'mitigating' factor. Thus, Article 37.071(b), supra, does not prevent the jury from considering a defendant's mental condition as a mitigating factor.

561 S.W.2d at 516.

While we agree that the evidence of Granviel's mental condition, when channeled through the second statutory inquiry, most likely had an aggravating result in his individual case, we do not believe that the jury was absolutely precluded from considering Mr. Strickland has told you the Defendant's sanity is no longer an issue and I agree. You have made up your mind on that point, but it is not true that the state of his mind, his mental condition is still an issue, not so far as a defense of insanity, but there is not any witness who testified in this case who led you to believe that there was nothing wrong with this man. If he is a sociopath, you heard Dr. Methner they burn out. Sociopaths burn out. It's a deep disease of youth. It is a personality disorder of youth.

this evidence in mitigation. Indeed, taking a quite different tack from that used here, defense counsel stressed the following point during closing argument at the penalty phase of the trial:

Dr. Methner also said this man could benefit from psychiatric help.

R. 3275-76. Moreover, Granviel proffered a similar argument on his direct appeal to the Texas Court of Criminal Appeals. There, he maintained that because of his "antisocial personality disorder," the evidence should be considered insufficient to support the jury's affirmative answer to the second statutory question.

We also disagree with Granviel's suggestion that art. 37.071(b)(2) is the only statutory question relevant to our investigation. ³ Art. 37.071(b)(1) requires the jury to decide whether the defendant acted deliberately and with the reasonable expectation that death would result. This inquiry seems to be the better vehicle for the concept of mitigation which is of primary importance to Granviel, i.e., that mental disorder lessens moral culpability.

It is true, as the NAACP maintains in its amicus curiae brief, that a "yes" answer to the first statutory question logically follows from a conviction of capital murder. See Tex.Penal Code Ann. § 19.03. However, such is not necessarily the case. The Texas Court of Criminal Appeals explains the inconsistency as follows:

(A) jury having found that a defendant intentionally committed a capital murder to be consistent would have to find that the act was deliberately done. However, the inconsistent answer to the question Art. 37.071(b)(1) reflects only that the jury did not want the death penalty assessed.

Blansett v. State, 556 S.W.2d 322, 327 n.6 (Tex.Cr.App.1977). Similarly, in Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977), the Texas court rejected the contention that art. 37.071(b)(1) requires the same finding as a determination of guilt under § 19.03.

It is not inconceivable that a jury, having found the requisite intent for a conviction of capital murder and having rejected the insanity defense, may yet conclude that, because of evidence of mental disturbance, a defendant's acts should not be deemed sufficiently deliberate to warrant the death penalty. Here again, we note that Granviel propounded a similar argument on his first appeal, where he maintained that the murder of Natasha McClendon "occurred in a frenzy" and that there was insufficient evidence that it was done deliberately. 522 S.W.2d at 123. True, the Texas Court of Criminal Appeals did not agree with Granviel's reasoning. But the jury's affirmative answer to the question, and the appellate court's determination that the evidence was sufficient to support that response, do not As a second attack on the validity of his death sentence, Granviel asserts that five veniremen were improperly excluded for cause in violation of Witherspoon v. Illinois, 391 U.S....