McDougall v. Rice

Decision Date27 April 1988
Docket NumberNo. C-C-87-114-P.,C-C-87-114-P.
Citation685 F. Supp. 532
PartiesMichael Van McDOUGALL, Petitioner, v. Nathan A. RICE, Warden, Central Prison, Raleigh, North Carolina, Respondent.
CourtU.S. District Court — Western District of North Carolina



James C. Fuller, Thorp, Fuller & Slifkin, Raleigh, N.C., Richard A. Rosen, University of North Carolina, School of Law, Chapel Hill, N.C., for petitioner.

Barry S. McNeill, Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., for respondent.


ROBERT D. POTTER, Chief Judge.

On March 9, 1987, Michael Van McDougall (Petitioner), a North Carolina prisoner, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 attacking the constitutionality of his 1980 convictions for felonious assault, kidnapping, and first degree murder, and of the sentence of death that was imposed for the murder conviction. Specifically, McDougall alleged:

1. That he was denied the effective assistance of counsel at trial and at sentencing because:
a. Lead counsel, in the six months prior to trial, had been the subject of two state bar suspension orders;
b. Lead counsel, during trial, suffered physical problems which required emergency room treatment and for which he ingested "mind-altering drugs";
c. Lead counsel, at sentencing, delivered an "incoherent and offensive" summary argument;
d. Lead counsel, during the course of his representation of Petitioner, engaged in illegal and unethical conduct;
2. That the trial court's instructions to the jury at sentencing unconstitutionally interfered with the jury's consideration of mitigating circumstances and resulted in a "mandatory" death sentence because the instructions:
a. Failed to inform the jury that mitigating circumstances must be considered in deciding whether the aggravating factors were sufficiently substantial to call for the imposition of the death penalty; and
b. Advised the jury that it had a "duty" to impose the death penalty if it answered affirmatively certain questions asked on the written jury form;
3. That the trial judge violated Petitioner's rights when he:
a. Refused Petitioner's request that the non-statutory mitigating circumstances be submitted to the jury in writing; and
b. Failed to require the jury to indicate its finding on each non-statutory mitigating circumstance;
4. That the prosecution's presentation at sentencing of the underlying facts of Petitioner's prior rape conviction, violated Petitioner's due process and Eighth Amendment rights to a fair sentencing hearing; and
5. That North Carolina's death penalty law is unconstitutional because it is administered in an arbitrary, capricious and discriminatory manner.

The Attorney General, as Respondent, was directed to respond to Petitioner's application and complied by filing an Answer to Petition and Motion to Dismiss. Respondent also furnished the Court with copies of state court records relating to Petitioner's trial, conviction, sentencing hearing, appeals, and Motion for Appropriate Relief hearing, as well as copies of State Bar records. The Attorney General concedes in his Answer to Petition and Motion to Dismiss that Petitioner's claims have been exhausted in state court, and this assertion is corroborated by the state court records. See 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), and State v. Van McDougall, ___ N.C. ___, 344 S.E. 2d 3, petition denied, ___ U.S. ___, 107 S.Ct. 238, 93 L.Ed.2d 163 (1986). Accordingly, the exhaustion requirement of 28 U.S.C. § 2254(b) has been met, and Petitioner's claims are ripe for review by this court.1

There is no need to conduct an evidentiary hearing on the claims raised in this petition. All but two of the claims present purely legal issues and, thus, do not require an evidentiary hearing. Bradley v. Cowan, 500 F.2d 380, 381 (6th Cir.1974). The remaining claims, whether Petitioner was denied effective assistance of counsel and whether North Carolina's death penalty statute is unconstitutional involve analyses of both facts and law. In connection with Petitioner's application for postconviction relief, Superior Court Judge Frank Snepp conducted a hearing on these claims at which both Petitioner and Respondent were afforded an opportunity to present evidence. Thereafter, Judge Snepp made extensive findings of facts and conclusions of law covering approximately twenty pages. See Judge Snepp's Memorandum Opinion and Order filed August 9, 1985. The factual findings of the state court, following a full and fair hearing on the merits, must be presumed to be correct. 28 U.S.C. § 2254; Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).2


On August 21, 1979, Petitioner was arrested and charged with murder and assault with a deadly weapon. Petitioner was subsequently indicted on charges of (1) kidnapping; (2) burglary; (3) assault with a deadly weapon with intent to kill inflicting serious injury; and (4) first degree murder. After a three-week trial beginning on June 9, 1980, the jury returned verdicts of guilty on the charges of first degree murder, kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Petitioner's plea of not guilty by reason of insanity was rejected by the jury's special verdict. Petitioner was sentenced to death for the first degree murder conviction after the jury recommended the death penalty at the conclusion of Petitioner's sentencing hearing.

The evidence at both the trial and sentencing phases of Petitioner's case is summarized in State v. McDougall, 308 N.C. 1, 4-8, 301 S.E.2d 308, 311-13, cert. denied, 464 U.S. 865, 104 S.Ct. 197, 78 L.Ed.2d 173 (1983). Briefly, the State's evidence established that, on July 21, 1979, at approximately 2:45 a.m., Petitioner rang the doorbell of his neighbors, Vicki Dunno and Diane Parker. After some conversation about Petitioner being hurt "real badly," the victims let Petitioner come into the house. After Vicki Dunno went to get a phone book, Petitioner picked up the butcher knife in the kitchen and grabbed Diane Parker. After several struggles with both women, both inside and outside the house, Petitioner began stabbing Vicki Dunno. When Diane Parker went to get help, Petitioner ran after and caught her. Vicki Dunno then went to get help. When the police officers arrived, they found Diane Parker's body sprawled in Petitioner's front yard, a few houses down from where the victims lived. When the officers brought in search lights to aid in the investigation, Petitioner came out from behind some bushes saying, "I give up. Okay, I give up." A blood analysis later showed that the blood on Petitioner's clothing matched Diane Parker's blood type.

After Petitioner was indicted, he retained Wallace Osborne to represent him. Because he did very little criminal work, Osborne, with Petitioner's consent, associated Michael Scofield as co-counsel.3 Scofield was experienced in the litigation of major criminal cases, having previously served as an Assistant United States Attorney in the Western District of North Carolina and as the Public Defender for Mecklenburg County. Scofield had also been involved in the defense of major criminal cases as a private practitioner. Both attorneys thoroughly investigated Petitioner's case and prepared for trial. They attempted to enter into plea negotiations with the State but were unsuccessful.

On February 27, 1980, Petitioner was sent to Dorothea Dix Hospital for psychiatric examinations and evaluation of his sanity. While there, Petitioner was treated for amnesia by Dr. Stephan S. Teich, a psychiatrist, and Courtney Mullin, a "juristic psychologist," both of whom were privately retained. Both Teich and Mullin had been associated with Jerome "Jerry" Paul in other criminal trials and urged Petitioner to retain Paul for his defense. After meeting with Scofield, Petitioner and Petitioner's family, Paul was retained by Petitioner in May of 1980.

Paul had suffered from severe migraine headaches since the death of his youngest son in 1977. In 1979, Paul moved from North Carolina to New York and placed himself under the psychiatric care of Dr. Teich. While in New York, Paul was hospitalized several times for migraine headaches. During this period, Paul had neglected his professional duties in the State of North Carolina and disciplinary procedures were instituted against him as the result of grievances filed with the North Carolina State Bar.

Petitioner was represented at trial by Paul, Scofield and Osborne, and he designated Paul to serve as lead counsel. The defense contended that Petitioner suffered from a cocaine-induced psychosis, as well as underlying depression and organic brain damage. In support of this contention, the defense put on evidence showing that Petitioner had suffered through severe and traumatic events during his childhood, that he had injected himself with cocaine on the night of the murder, and that he claimed to have amnesia concerning the events surrounding the murder and assault on August 21, 1979. Despite his alleged amnesia, Petitioner was able to give his psychiatrist enough information for the psychiatrist to testify that, in his expert opinion, Petitioner believed, at the time of the attacks, that he was fighting his mother, who was beating him. Petitioner did not testify at trial.

The jury, at the sentencing phase, found as aggravating circumstances that Petitioner had previously been convicted of a felony involving the use of violence to the person; that the murder was especially heinous, atrocious and cruel; and that the murder was part of a course of conduct which included the commission of another crime of violence against another person. As mitigating circumstances, the jury found, among other things, that the murder was committed while Petitioner was under the influence...

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5 cases
  • State v. Green
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 23, 1994 a claim of ineffectiveness), cert. denied, 470 U.S. 1009, 105 S.Ct. 1371, 84 L.Ed.2d 390 (1985); McDougall v. Rice, 685 F.Supp. 532, 539-40 (W.D.N.C.1988) ("[e]vidence that counsel was treated at hospitals at various times during trial or that counsel used prescription drugs during ......
  • Johnson v. State
    • United States
    • Kansas Court of Appeals
    • December 11, 2009
    ...Zant, 727 F.2d 1489, 1492-93 [11th Cir.1984], cert. denied 470 U.S. 1009[, 105 S.Ct. 1371, 84 L.Ed.2d 390] [1985]; McDougall v. Rice, 685 F.Supp. 532, 539-40 [W.D.N.C.1988]; Hernandez v. Wainwright, 634 F.Supp. 241, 245 [S.D. Fla.1986], aff'd 813 F.2d 409 [11th Cir. 1987]; State v. Coates, ......
  • Washington v. May
    • United States
    • U.S. District Court — District of Delaware
    • September 30, 2022
    ...or that his condition or friendship with the prosecutor prejudiced Petitioner. See Hayes, 2016 WL 659081, at *14-15; McDougall v. Rice, 685 F.Supp. 532, 539-40 (W.D. N.C. 1988); accord, Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir. 1984) (Petitioner's observation that counsel ingested dr......
  • James v. North Carolina
    • United States
    • U.S. District Court — Western District of North Carolina
    • September 9, 2011
    ...2002 WL 32514300, at *3 (E.D.N.C. June 26, 2002) (unpublished) (§ 1419(a)(3) applied to double jeopardy claim); McDougall v. Rice, 685 F. Supp. 532 (W.D.N.C. 1988) (rule applied to indirect challenge to admissibility of evidence supporting lesser, included offense). See also State v. Murrel......
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