McDougall v. Dixon
| Citation | 921 F.2d 518 |
| Decision Date | 19 December 1990 |
| Docket Number | No. 88-4003,88-4003 |
| Parties | Michael Van McDOUGALL, Petitioner-Appellant, v. Gary DIXON, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James C. Fuller, Jr., Thorp, Fuller & Slifkin, P.A., Raleigh, N.C., argued (Margaret E. Karr, Thorp, Fuller & Slifkin, P.A., Raleigh, N.C., Richard A. Rosen, University of North Carolina School of Law, Chapel Hill, N.C., on brief), for petitioner-appellant.
Barry Steven McNeill, Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., argued (Lacy H. Thornburg, Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., on brief), for respondent-appellee.
Before PHILLIPS, CHAPMAN and WILKINS, Circuit Judges.
Michael Van McDougall appeals the district court's denial of his petition for a writ of habeas corpus. He claims errors of constitutional dimension in his trial which resulted in his convictions of felonious assault, kidnapping and first degree murder, and his sentence of death imposed as a result of the murder conviction. His claims of error are:
1. That the jury instructions at the sentencing phase violated his right under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), to have the jury consider all of his mitigating evidence when making its sentencing decision.
2. That the district court refused to allow him to introduce evidence in the form of opinions from certain professors in the fields of Anthropology, English, Philosophy, Psychology, Communications and Rhetoric as to how the jury instructions would have been understood by a reasonable juror.
3. That the jury instructions in the sentencing phase unconstitutionally interfered with the jury's consideration of non-statutory mitigating circumstances.
4. That his death sentence was unconstitutionally imposed because at the time of his trial North Carolina juries were permitted to return verdicts to the lesser included offense of second degree murder when there was no evidence to support such a verdict.
5. That the conduct of his lead trial attorney was so outrageous that he was denied a fair trial as required by the Sixth, Eighth and Fourteenth Amendments.
Finding no error, we affirm.
I
A detailed account of the facts supporting the conviction is set forth in State v. McDougall, 308 N.C. 1, 301 S.E.2d 308, cert. denied, 464 U.S. 865, 104 S.Ct. 197, 78 L.Ed.2d 173 (1983), so we provide only a summary that may assist in framing the issues.
In the early morning hours of August 21, 1979, McDougall rang the doorbell at the home of his neighbors, Vicki Dunno and Diane Parker, who lived together at 1420 Blueberry Lane, Charlotte, North Carolina. He begged to be admitted and claimed that his wife had cut her leg badly and he needed alcohol and bandages for her, and that he needed to call a doctor. Miss Parker took alcohol and bandages and placed McDougall demanded the car keys, and when they were delivered, he forced both women back outside and told them he was going to put them in the trunk. Vicki then threw the keys away, and McDougall threw her to the ground and began to stab her. Vicki screamed to Diane to run for help. She ran but McDougall caught her and stabbed her 22 times. Two of these wounds were to the heart and medical evidence established that most of the wounds occurred while she was in a prone position. There were also defensive cuts about her hands. Diane Parker's body was found in the yard of McDougall's home. The butcher knife, which was found at the scene, was identified as the murder weapon.
them outside the back door and then went back to the front of the house where appellant began calling her by name and saying that he needed to talk to her because he needed help for his wife. He explained that he was her neighbor, Mike, and continued to plead to get into the house. Unfortunately, Diane Parker let McDougall into the house. They went into the kitchen where Vicki Dunno was checking the telephone directory for a doctor's number. While this was going on, defendant walked from the kitchen into the den and began to "check out the house." At this point Diane Parker took the telephone book from Vicki Dunno and started to dial for help. McDougall returned to the kitchen and picked up a butcher knife. He then grabbed Diane by the arm and put the knife in front of her face and told her to put down the telephone. A struggle developed and Diane told Vicki to run next door and get help. Vicki ran out to the front yard but she slipped on wet grass, and in the course of falling, lost her glasses. While she was looking for her glasses, McDougall came out of the house and told Vicki that she was not going anywhere, and another struggle ensued. Diane came out of the house holding a knife, and McDougall took the knife from her. After another struggle he grabbed the two women by their hair and dragged them back into the house. At the time McDougall was 6'2" tall and weighed about 220 pounds; Vicki was 25 years of age, 5'10" tall and weighed 130 pounds; and Diane was 27 years of age, 5'2" tall and weighed 125 pounds
While McDougall was chasing Diane, Vicki Dunno dialed the emergency number, 911, and police arrived and began looking for McDougall. When they brought in search lights, McDougall came from behind some bushes saying, There was blood smeared on his person, his shirt and pants and a blood analysis showed that this blood matched the blood type of the deceased.
Shortly after McDougall's arrest, his family retained Charlotte attorney Wallace Osborne to represent him. Because of his limited experience in criminal cases, Osborne associated Attorney Michael Scofield with McDougall's consent. Mr. Scofield had considerable criminal experience and had been an Assistant United States Attorney in the Western District of North Carolina and a Public Defender for Mecklenburg County, North Carolina. The attorneys arranged to send McDougall to a psychiatric hospital for mental evaluation, and to secure information about his amnesia, since he claimed no memory of the events of August 21, 1979. While at the hospital McDougall was treated by Dr. Stephan S. Teich, a psychiatrist, and Courtney Mullin, a "juristic psychologist", both of whom were privately retained. These individuals had previously been associated with Attorney Jerome Paul in the defense of other criminal cases and they urged McDougall to retain Attorney Paul for his defense. After meeting with Attorney Scofield, McDougall and his family, Paul was retained in May 1980 to represent appellant together with Attorneys Scofield and Osborne. All three attorneys participated in the three-week trial, which included the guilt and the sentencing phases, and resulted in the death sentence now under attack.
At trial, the defense contended that McDougall suffered a cocaine induced psychosis, underlying depression and organic brain damage. He was alleged to have injected himself with cocaine on the night of the murder, and he claimed amnesia as to all events surrounding the crimes. He The appellant's guilt of the murder of Diane Parker is not an issue in the present appeal. The evidence of guilt was overwhelming.
did not testify in the guilt phase of the trial but he did testify during the sentencing phase.
During the sentencing phase, it was established that McDougall had been convicted of rape in March 1974, and that prior to stabbing Diane Parker to death, he had stabbed Vicki Dunno. Defendant introduced evidence that he was present, as a young boy, when his grandfather committed suicide, and since that event he has experienced hallucinations and heard his grandfather's voice. He also contended that he suffered from cocaine induced psychosis, organic brain damage and depression, and that at the time of the murder, he thought he was fighting his mother, who was hitting him with an automobile radio antenna.
At the conclusion of the evidence, the oral arguments and the charge in the sentencing phase, the trial judge submitted to the jury a verdict form containing four questions, with the first two questions having four subparts each. This is entitled "Issues and Recommendation as to Punishment" and is set forth below with the answers given by the jury.
ANSWER: Yes
ANSWER: Yes
ANSWER: No
ANSWER: Yes
ANSWER: Yes
ANSWER: Yes
ANSWER: Yes
ANSWER: Yes
ANSWER: No
ANSWER: Yes
ANSWER: Yes
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