LaRette v. Delo

• Decision Date: 27 March 1995
• Docket Number: No. 94-1901,94-1901
• Parties: Anthony J. LaRETTE, Plaintiff-Appellant, v. Paul DELO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 681

44 F.3d 681

Anthony J. LaRETTE, Plaintiff-Appellant, v. Paul DELO, Defendant-Appellee.

No. 94-1901.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1994.

Decided Jan. 11, 1995.

Suggestion for Rehearing En Banc Denied March 27, 1995.

Lee Lawless, St. Louis, MO, argued, for appellant.

Stephen David Hawke, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Anthony J. LaRette, a Missouri inmate under sentence of death, appeals the district court judgment ¹ denying his fourth amended petition for a writ of habeas corpus. We affirm.

I. Factual and Procedural Background

At 11:00 a.m. on July 25, 1980, eighteen-year-old Mary Fleming, bleeding profusely, ran across a street in St. Charles, Missouri, and collapsed on the doorstep of a neighbor who immediately called the police. Fleming was naked except for a pulled-up bikini top. She had been stabbed several times in the chest, and her neck was slashed from ear to ear. Her forehead and right arm were bruised, and her fingers and hands had numerous cuts, suggesting a struggle. Despite efforts by emergency medical personnel, Fleming bled to death. Police found blood scattered throughout her apartment, the obvious scene of the crime.

As Fleming ran out the back door of her apartment, a witness saw a man run out the front door of the apartment to a cream-colored convertible and drive away. Police traced the car to Richard Roberson, who told them that LaRette had borrowed the car that day for a job interview. Two days after the murder, LaRette left St. Charles for his home in Kansas. He later admitted killing Fleming in telephone conversations with Roberson, who allowed a police officer to listen in on one of these conversations.

St. Charles police initially interviewed LaRette at a jail in Shawnee County, Kansas. LaRette stated that a hitchhiker was responsible for the murder. The next day, police transported him to St. Charles, where he was again interviewed and admitted killing Fleming. Prior to both interviews, LaRette signed a written waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

LaRette was convicted of capital murder and sentenced to death. The Missouri Supreme Court affirmed on direct appeal. State v. LaRette, 648 S.W.2d 96 (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). LaRette then filed a motion for post-conviction relief under Mo.R.Crim.P. 27.26, arguing primarily that his trial counsel provided ineffective assistance for failing to investigate and present evidence concerning LaRette's history of mental illness at the guilt and sentencing phases of his trial. Following an evidentiary hearing, the motion was denied, and the Missouri Court of Appeals affirmed. The state courts found that counsel was aware of LaRette's history of mental illness, but LaRette instructed counsel not to raise a mental illness defense during the guilt phase. At the sentencing phase, LaRette refused to testify, so counsel presented mitigating testimony as to his emotional state prior to the crime through a stipulation reciting his mother's expected testimony. See LaRette v. State, 703 S.W.2d 37 (Mo.Ct.App.1985).

LaRette then commenced this federal habeas corpus proceeding. The case was stayed twice in the district court to permit LaRette to exhaust additional state court remedies. First, he filed a successive Rule 27.26 motion, which was denied primarily for that reason. See LaRette v. State, 757 S.W.2d 650 (Mo.Ct.App.1988). During the second stay, he filed motions to recall the mandate and for state habeas relief which the Supreme Court of Missouri summarily denied. LaRette then filed a fourth amended petition with the district court, alleging over fifty grounds for habeas relief. He submitted medical records from 1959 to 1978, which his trial counsel had not obtained, and a January 1989 psychiatric evaluation report by Dr. A.E. Daniel which opined (i) that, at the time of the murder, LaRette "was suffering from a mental disease in the form of organic mental disorder due to Partial Complex Seizures, also known as psychomotor seizures or Temporal Lobe Epilepsy," and (ii) that this disease provided "a definite case for diminished capacity" and was "a strong mitigating factor [that] should have been introduced at the penalty phase."

In a series of exhaustive memorandum opinions, the magistrate judge ² considered this additional medical evidence and recommended that habeas relief be denied without an evidentiary hearing, and the district court accepted that recommendation and denied the petition for a writ of habeas corpus. This appeal followed.

II. Ineffective Assistance of Counsel--Failure To Investigate and Present Evidence of Mental Illness

LaRette's primary argument on appeal is that his trial counsel was ineffective in failing to adequately investigate his mental condition and in not introducing evidence of that condition at either the guilt or sentencing phase of the trial. LaRette argues that further investigation would have uncovered "a plethora of records from hospitals and doctors" revealing a twenty-year history of temporal lobe epilepsy, head injuries, brain damage, and seizures. Larette contends that this evidence would have provided both a defense at the guilt phase and a mitigating circumstance at the penalty phase by establishing that the murder was "precipitated by [LaRette's] mental illness which causes intermittent rage behavior which he cannot control."

This claim was the subject of a post-conviction evidentiary hearing in state court. LaRette's trial counsel testified that he requested a psychiatric evaluation the day after he was appointed to represent LaRette. Dr. Henry Bratkowski examined LaRette and reported that he was of average intelligence, was competent to stand trial, and did not suffer from any mental disorder that would excuse him from criminal responsibility. Counsel further testified that he discussed the possibility of presenting a mental illness defense with his client. LaRette told counsel that he (LaRette) had no mental problems at the time of the murder and instructed counsel not to present a mental illness defense because LaRette "would rather die than go back to a mental hospital." At all their pretrial meetings, counsel considered LaRette to be lucid and in control of his faculties.

At the guilt phase of the trial, LaRette instructed counsel to present the defense that LaRette was innocent because a hitchhiker had murdered Mary Fleming. After the jury found LaRette guilty of the crime, counsel spent the entire recess before the sentencing phase urging LaRette to testify about mitigating circumstances, including his history of mental illness beginning with a childhood head injury, and his marital problems immediately prior to the murder. LaRette refused to testify. During the sentencing phase, counsel introduced testimony by LaRette's mother as to his emotional state and marital problems at the time of the murder.

LaRette first argues that counsel ineffectively investigated LaRette's mental condition. Though counsel obtained a psychiatric evaluation which did not support a competency defense, LaRette contends that this evaluation was flawed because the examiner did not have LaRette's prior medical records. Therefore, counsel should have obtained those records and requested a second evaluation. However, as the state courts noted, this failure to investigate claim must be considered in light of what LaRette told his counsel--that he was competent at the time of the murder and that counsel should not pursue a competency defense.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.... [W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Laws v. Armontrout, 863 F.2d 1377, 1383-84 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). Taking this factor into account, we agree with the Missouri courts and the district court that counsel's investigation did not fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

LaRette also argues that counsel was ineffective in not presenting evidence of mental illness at the guilt and sentencing phases of the trial. The state courts concluded that counsel did not provide constitutionally ineffective assistance (i) because counsel followed LaRette's instruction in not presenting such evidence during the guilt phase, and (ii) because LaRette's refusal to testify frustrated counsel's attempt to address this issue during the sentencing phase. LaRette, 703 S.W.2d at 39-40. Like the district court, we agree. Compare Singleton v. Lockhart, 962 F.2d 1315, 1321-22 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 435, 121 L.Ed.2d 355 (1992).

III. The Aggravating Circumstance Instruction

Following the jury's guilty verdict, the trial court conducted the penalty phase of LaRette's trial. Under the statute then in effect, Mo.Rev.Stat. Sec. 565.012 (Supp.1980), ³ if the jury found at least one statutory aggravating...