Martin v. Maggio, No. 81-3494

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, RUBIN and REAVLEY; PER CURIAM
Citation711 F.2d 1273
PartiesDavid Dene MARTIN, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General of the State of Louisiana, Respondents-Appellees.
Docket NumberNo. 81-3494
Decision Date15 August 1983

Page 1273

711 F.2d 1273
David Dene MARTIN, Petitioner-Appellant,
v.
Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and
William J. Guste, Jr., Attorney General of the
State of Louisiana, Respondents-Appellees.
No. 81-3494.
United States Court of Appeals,
Fifth Circuit.
Aug. 15, 1983.

Page 1276

Richard E. Shapiro, Div. of Public Interest Advocacy, Dept. of Public Advocate, Trenton, N.J., for petitioner-appellant.

John J. Erny, Jr., Thibodaux, La., Asst. Dist. Atty., LaFourche Parish, for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, RUBIN and REAVLEY, Circuit Judges.

PER CURIAM:

In 1978 the State of Louisiana sentenced David Dene Martin to die for murdering four persons. In this habeas corpus action, filed after four years of legal action in state courts, he seeks invalidation of his conviction because of ten claimed violations of his federal constitutional rights. Having carefully reviewed the record to ensure that his conviction has been achieved constitutionally, 1 we find no error and, therefore, affirm the district court judgment denying the writ.

I.

On April 10, 1978, a Louisiana jury convicted Martin of four counts of first degree murder. 2 The following day, after a separate sentencing hearing, the jury unanimously recommended that Martin be sentenced to death on each count. Louisiana law requires the sentencing jury to find at least one of the aggravating circumstances specified in La.Code Crim.Proc.Ann. art. 905.4 (West Supp.1983) before imposing the death sentence. Martin's jury found two: (1) he "knowingly created a risk of death or great bodily harm to more than one person," id. art. 905.4(d); and (2) he committed the offenses "in an especially heinous, atrocious or cruel manner." Id. art. 905.4(g).

On direct appeal the Louisiana Supreme Court, by a vote of four to three, affirmed the convictions and sentence. State v. Martin, 376 So.2d 300 (La.1979). That court denied rehearing by the same margin. Id. The United States Supreme Court denied Martin's petition for a writ of certiorari. Martin v. Louisiana, 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297 (1980) (Justices Stewart, Brennan and Marshall dissenting).

Martin then sought post-conviction relief in the Louisiana courts. His first petition was dismissed by a state district court on February 9, 1981. State v. Martin, Nos. 80074-76 (La.Dist.Ct. LaFourche Parish, Feb. 9, 1981). He then returned to the Louisiana Supreme Court. With two justices dissenting, that court denied Martin relief. State ex rel. Martin v. Blackburn, 392 So.2d 648 (La.1981).

Having exhausted his state remedies, Martin on February 10, 1981 filed a petition for writ of habeas corpus in United States District Court. The court stayed his execution and referred the case to a magistrate. On August 12, 1981 the district court, in a thirty-nine page opinion, denied Martin relief. Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981). Martin appealed.

II.

On August 11, 1977, David Martin's wife Gloria began to work in a restaurant lounge

Page 1277

owned by Bobby Todd. The next day she had sexual relations with Todd; the following day she informed her husband of this fact. She refused Martin's request that she quit working for Todd. That night, Martin stole a friend's Colt Python .357 magnum pistol. The firearm was loaded with hollow-point bullets, and Martin later purchased an additional box of shells for it.

On August 13, Martin visited his next-door neighbor, Raymond Rushing. Martin told Rushing that he was going to shoot Todd. He explained that he was jealous of his wife's relationship with Todd. On August 14 Martin told another friend, Chester Golden, that his wife was working at Todd's restaurant and would not quit. He indicated that he had "a bone to pick" with Todd and had waited the last two nights outside Todd's restaurant for an opportunity to "get" Todd. Martin showed Golden the stolen pistol. He told Golden that, because he had stolen the gun from a felon, its theft would not be reported. Golden told Martin that he "looked pretty drug out" and had lost weight. Martin replied that he had been up for two nights and had not been eating.

That evening, according to accounts he later gave, Martin drove to the vicinity of the trailer in which Todd lived. He parked down the road from the trailer so he could approach it in the guise of a hitchhiker on foot. He entered the trailer and confronted Todd, who offered him a roll of bills. Martin ignored the money. Saying "I just want you to know my name," Martin shot Todd twice in the chest. He proceeded to shoot the three other persons in the trailer: Todd's bodyguard and two nude females. Martin inflicted multiple bullet wounds on each of the four. One of the women was first wounded in the abdomen. She told Martin she was in pain and begged him to "finish" her. He shot her in the head and killed her. Martin then took the rolls of money "to make it look like a robbery," and left.

Around 8:00 p.m., Martin returned to Golden's home. He was excited and asked Golden to take a ride with him. During the ride, he told Golden that he had killed four people at the restaurant. Martin said he had not touched anything and, although the authorities might suspect him, they had no proof that he committed the murders. Martin confessed to four more people that night. He told one of them, Pamela Wilson, that he had thrown the gun in a bayou. Martin was arrested a short time later. The sheriff who made the arrest told reporters for a local newspaper that Martin appeared "strung out on dope" at the time.

Martin's brother retained a Texas attorney with ten years' criminal trial experience and some experience with capital cases. The Texas attorney associated a Louisiana lawyer with limited criminal experience and no experience in capital offenses. Lead counsel was also assisted by an investigator who made several trips to the area of the crime.

Using the words "walk me or fry me," Martin told lead counsel at their first meeting to seek either a full acquittal or the death penalty. He later repeated this instruction to local counsel. Martin told lead counsel he had taken drugs on the night of the murders. Lead counsel arranged for Martin to be examined by Dr. Byrd, a psychiatrist. Martin told Dr. Byrd that he had taken PCP on the night in question. Dr. Byrd, therefore, discussed a "drug-related" defense with lead counsel.

According to Dr. Byrd, the effect of this type of drug on "the thinking capacity of the human being would raise substantive and serious questions about [Martin's] ability to formulate logical thoughts on or about" the night of the murders. He also concluded that the murders were "inconsistent with [Martin's] past history, except in the presence of a toxin such as LCD [sic] or PCP." The doctor, therefore, concluded that a drug-related defense would be medically "valid and credible" in Martin's case. He thought an intelligent decision about such a defense, however, required additional evaluation of Martin and further investigation of the drugs Martin had taken that night. These investigations were never pursued because Martin's counsel did not again communicate with Dr. Byrd.

Page 1278

Martin called Dr. Richard Garey, an expert on the effect of drugs, as a witness at the federal habeas hearing. Dr. Garey testified that one of the common effects of the use of PCP is "an amnesiac response, that is they don't remember either completely--complete amnesia, or it's fragmented, they remember part of what went on during their trip. And a lot of times they don't remember completely, and if it's fragmented, they'll remember things that happened an hour before but not two hours before." He added, "they seldom remember the event in very clear detail." It is possible for an individual who is under the influence of PCP to remember an event for a short time, then forget about it, but "it's not common." It happens "in approximately 10 percent of the cases."

Martin's lead attorney did no research to determine whether voluntary intoxication was a defense to first degree murder in Louisiana. Local counsel, who has since ceased to handle criminal cases, testified that he "got into" the question "real heavy," but his testimony exhibits substantial confusion about the legal questions involved. He testified that, to the best of his recollection, voluntary intoxication was not a defense. 3

The intoxication theory was not pursued by Martin's counsel because they had decided to rely on another defense. This decision was never discussed with Martin. Indeed, counsel never even discussed the possibility of an intoxication defense with him. Lead counsel explained his decision as follows:

One, I was convinced that the defense of diminished capacity because of drugs was really not a defense that was there. I was not--I mean no one indicated to me any factors that would indicate that at the time of the offense Mr. Martin was intoxicated as a result of drug use .... One thing that concerned me in that regard was the incident involving Mr. and Mrs. Martin's child and the birth of their child. There had been a child born to Mr. and Mrs. Martin with ... brain damage. It appeared that those complications may very well have been related to drug use on the part of either Mr. Martin or Mrs. Martin.

And I was concerned that ... any suggestion that [Martin] might have, either inadvertently or through negligence or engaging himself in unlawful activities such as the use of drugs, had been responsible for the serious complications to his child, may have seriously prejudiced Mr. Martin in the eyes of the jury.

Moreover, local counsel indicated that he and lead counsel were uncomfortable with the intoxication defense because, to invoke it, Martin would have to admit that he committed the murders.

Counsel chose instead to pursue the defense that Martin had not committed the...

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  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...both counsel's deficient performance and resultant prejudice. Burnett v. Collins, 982 F.2d 922, 928 (5th Cir.1993); and Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 66. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct.......
  • U.S. v. Navarro, Nos. 83-1602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 14, 1984
    ...U.S. 941, 91 S.Ct. 944, 27 L.Ed.2d 222 (1971); Martin v. Blackburn, 521 F.Supp. 685, 699 (E.D.La.1981), aff'd sub nom. Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983); cf. United States v. Bastanipour, 697 F.2d 170, 174 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1790, 76 L.Ed.2d ......
  • Emery v. Johnson, Civil Action No. H-95-3939.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 30, 1996
    ...v. Collins, 980 F.2d 292, 296 (5th Cir.1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977, 125 L.Ed.2d 675 (1993); Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984). A petitioner's conclusory and speculative allegations w......
  • State v. Reeves, No. 88-972
    • United States
    • Supreme Court of Nebraska
    • March 16, 1990
    ...the sentencing judge or judges to make specific written findings with regard to nonstatutory mitigating factors. See, Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983) (8th and 14th amendments do not require the sentencing jury to list the mitigating circumstances it considered); Coleman v. Ri......
  • Request a trial to view additional results
74 cases
  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...both counsel's deficient performance and resultant prejudice. Burnett v. Collins, 982 F.2d 922, 928 (5th Cir.1993); and Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 66. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct.......
  • U.S. v. Navarro, Nos. 83-1602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 14, 1984
    ...U.S. 941, 91 S.Ct. 944, 27 L.Ed.2d 222 (1971); Martin v. Blackburn, 521 F.Supp. 685, 699 (E.D.La.1981), aff'd sub nom. Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983); cf. United States v. Bastanipour, 697 F.2d 170, 174 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1790, 76 L.Ed.2d ......
  • Emery v. Johnson, Civil Action No. H-95-3939.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 30, 1996
    ...v. Collins, 980 F.2d 292, 296 (5th Cir.1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977, 125 L.Ed.2d 675 (1993); Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984). A petitioner's conclusory and speculative allegations w......
  • State v. Reeves, No. 88-972
    • United States
    • Supreme Court of Nebraska
    • March 16, 1990
    ...the sentencing judge or judges to make specific written findings with regard to nonstatutory mitigating factors. See, Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983) (8th and 14th amendments do not require the sentencing jury to list the mitigating circumstances it considered); Coleman v. Ri......
  • Request a trial to view additional results

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