Messer v. Kemp
| Decision Date | 16 October 1987 |
| Docket Number | No. 86-8506,86-8506 |
| Citation | 831 F.2d 946 |
| Parties | James MESSER, Jr., Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Howard Manchel and Robert L. McGlasson, Atlanta, Ga., for petitioner-appellant.
Mary Beth Westmoreland and William B. Hill, Sr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges.
I.
On February 13, 1979, eight-year-old Rhonda Tanner of Cedartown, Georgia, did not return home after school. Her mother became worried and drove to the school to look for her. At the school, the principal told Mrs. Tanner that a man identifying himself as Rhonda's uncle had taken Rhonda home earlier in the afternoon, claiming that her father had been injured on the job and that her mother had asked him to pick her up after school. The police were notified that Rhonda was missing.
The next day, various family members conducted an extensive search for Rhonda. After one of the family members spotted Rhonda's coat lying in some bushes, she notified the police, who along with agents of the FBI and the Georgia Bureau of Investigation began to search the area. Later that afternoon, the search party discovered Rhonda's half-nude, blood-spattered body in a secluded, wooded area outside Cedartown.
That evening, investigators located petitioner, James Messer, Jr., Rhonda's uncle by marriage. They told him that they were investigating the Rhonda Tanner case and that they wanted to ask him some questions. They suggested that the questioning take place at the local police station. 1 Petitioner indicated that he wanted to cooperate, and he and his wife accompanied the investigators to the police station, where he voluntarily gave them a statement. 2 Initially, petitioner denied killing Rhonda. When he was told of the fact that witnesses had implicated him in the crime, he broke down crying and confessed to the murder. 3
Petitioner admitted going to the elementary school and, in order to secure Rhonda's release, telling the principal that Rhonda's father had been injured and that he had come to take her home. He said that he and Rhonda left the school and drove to a secluded, wooded area. He stopped the car, and they walked into the woods together. Shortly thereafter, he began to molest her. When she resisted, he stamped her face and kicked her head. Then, he took out his pocket knife and stabbed her repeatedly. Petitioner denied raping Rhonda but admitted to masturbating on her abdomen. 4
On February 16, 1979, two days after petitioner's arrest, the Superior Court of Polk County, Georgia appointed two attorneys to represent him. 5 Petitioner waived a committal hearing, 6 and his case was presented to a Polk County grand jury. 7 On February 26, 1979, the grand jury indicted petitioner on two counts, for kidnapping with bodily injury and for the murder of Rhonda Tanner.
A few hours before the indictment was returned, petitioner's attorneys filed a motion in the Superior Court of Polk County challenging the composition of the grand jury and the pool from which it had been drawn. Counsel asserted that the grand jury had been composed in violation of petitioner's sixth and fourteenth amendment right to a grand jury drawn from a fair cross-section of the community. Petitioner, who was twenty-five years old, contended that he had been denied this constitutional right because the grand jury did not contain the percentage of "young people" represented in the community. The next day, February 27, the court convened a hearing to consider petitioner's grand jury challenge. During the course of the hearing, at which the court postponed its consideration of the challenge to a later date, 8 petitioner's counsel informed the court that he would seek a psychiatric examination of petitioner "to fully protect his rights." Counsel did not elaborate further or indicate whether he would ask for an examination by a private psychiatrist or one conducted by a State psychiatrist.
On March 2, 1979, petitioner filed a motion for an independent psychiatric examination at the State's expense, "alleg[ing] on information and belie[f] that certain psychiatric problems will arise during the course of the preparation and defense of this case." In the motion, petitioner's counsel suggested that Dr. William S. Davis, an Atlanta psychiatrist, examine petitioner because "[h]is advice, or the advice of some other psychiatrist chosen by the Defendant will be necessary in the preparation of the defense." Alleging financial hardship on behalf of petitioner, counsel requested that the State pay for the retention of Dr. Davis as a defense consultant "in order to insure said Defendant of a fair trial and due process of law under the Constitutions of the United States and Georgia."
Shortly thereafter, the State requested the court to have petitioner examined by the staff of the Forensic Services Division at Central State Hospital in Milledgeville, Georgia. On March 8, the court directed the staff at the Forensic Services Division to perform a complete psychiatric examination of petitioner, to assess his mental capacity at the time of the Tanner kidnapping and murder, and to determine his competence to stand trial.
Two days later, petitioner was admitted to the Forensic Services Division at the hospital. On April 20, 1979, Dr. Louis J. Jacobs, a "physician specialist," wrote to the court, informing it that the hospital's examination and evaluation had been completed. Dr. Jacobs stated that Dr. Jacobs summarized the results of the psychiatric examination of petitioner as follows:
A psychiatric evaluation revealed no mental disorder. Day-to-day observations of his behavior by the staff revealed no evidence of psychosis at any time during his stay here. He was found to be competent and responsible for his actions.
Based on our examination and evaluation, we have concluded that he is aware of the charge pending against him and the possible consequences. He is able to relate to his attorney in the preparation of his defense. Therefore, we consider him competent to stand trial at the present time.
As to his degree of criminal responsibility, it is our opinion that he is able to distinguish between right and wrong and was not acting under the influence of a compulsive delusion at the time of the alleged offense.
Petitioner was arraigned on May 8, 1979, and entered pleas of not guilty to both counts of the indictment. After receiving the pleas, the court turned to petitioner's grand jury challenge, and following an exchange with counsel postponed further consideration of the matter until May 22. The court advised the parties that it would hold a hearing on that date to consider petitioner's grand jury challenge and, also, the motion for a change of venue that petitioner's attorneys said they were preparing to file because of the intense publicity the case had generated.
Petitioner's counsel reminded the court that they had requested the appointment of an independent psychiatrist, and they asked for a ruling, arguing that "another [psychiatric] opinion would be helpful to the defendant and to the court." The court indicated a willingness to grant their request and to appoint Dr. Davis, the psychiatrist defense counsel preferred, if the State would agree. The court directed the prosecutor to confer with defense counsel and stated that if they could not agree on a psychiatrist, then it would determine whether to appoint Dr. Davis or someone else.
On May 22, 1979, the court and counsel assembled to hear petitioner's grand jury challenge, his motion for change of venue, and his motion for the appointment of a psychiatrist. The court, however, did not reach these matters. As the hearing was about to begin, petitioner's attorneys informed the court that petitioner and his family were making arrangements to retain a new attorney, John E. Sawhill, III, of nearby Rome, Georgia to represent petitioner, and were raising funds for that purpose. They described Sawhill, who was present, as having "substantial experience in defending serious criminal charges." The court acknowledged that Sawhill was "a highly competent attorney in civil and criminal matters" and proceeded to question Sawhill, petitioner, and petitioner's mother, Mary Messer, about the plan to substitute counsel. Their responses apparently satisfied the court that petitioner did wish to substitute Sawhill for the court-appointed attorneys and that Sawhill would accept the assignment. The court, however, wanted to give petitioner a few more days to think the matter over, 9 so it deferred its ruling on petitioner's request to substitute counsel for two weeks, until the next scheduled hearing in the case. At that hearing, which took place on June 5, the court asked petitioner and his mother whether they still wanted to replace the court-appointed attorneys with Sawhill. Petitioner responded that he wished to retain Sawhill as his lawyer. The court approved the substitution of counsel; Sawhill entered his appearance, and the court-appointed attorneys were discharged.
On June 14, Sawhill moved the court to appoint an independent psychiatrist, presenting the identical motion that petitioner's court-appointed attorneys had filed on March 2. Sawhill also moved the court, in a separate pleading, to provide "funds for expert witnesses." He alleged that such funds were necessary to ensure that petitioner would not be denied his...
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