Six v. Delo

• Decision Date: 29 November 1996
• Docket Number: No. 95-2918,95-2918
• Citation: 94 F.3d 469
• Parties: Andrew W. SIX, Appellant, v. Paul K. DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 469

94 F.3d 469

Andrew W. SIX, Appellant, v. Paul K. DELO, Appellee.

No. 95-2918.

United States Court of Appeals Eighth Circuit.

Submitted April 8, 1996.

Decided Aug. 27, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 29, 1996.

Leo Griffard, Jr., Boise, ID, argued (Cheryl Rafert, on the brief, St. Louis, MO), for appellant.

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

Before McMILLIAN and FAGG, Circuit Judges, and BURNS, ^* District Judge.

FAGG, Circuit Judge.

On April 10, 1987, Andrew W. Six and his uncle, Donald Petary, terrorized a family in Ottumwa, Iowa. Six and Petary went to the home of Don and Stella Allen and their daughters, Christine, who was seventeen and Kathy, who was twelve. Both girls were special education students. Six and Petary said they were interested in purchasing the family's truck, which the family was selling to finance Don's open heart surgery. Stella agreed to accompany Six and Petary on a test drive. Six drove the truck onto a gravel road and stopped. While Six held Stella, Petary wrapped duct tape around her hands. They then returned to the Allen home, where Don was waiting outside. Holding butcher knives to the Allens' throats, Six and Petary forced the couple back inside their home. Six taped Don's hands and mouth, and took wallets from Stella and Don. Petary fondled Kathy, and Six raped Christine, who was obviously pregnant. At Six's direction, Petary took Kathy and Christine outside and put them inside his car. Six tried to force Stella and Don into the truck at knifepoint, but Don started to run away. Six then slashed Stella's throat, inflicting serious injuries, and she fell to the ground. Seeing her father's flight, Christine escaped from the car, but Kathy, who was trapped next to Petary, could not. After Six jumped into the car, Six and Petary sped off with Kathy, heading south. Three days later, Kathy Allen's body was found in a ditch in Missouri. She had bled to death there after being stabbed in the neck.

At Six's state trial for Kathy's murder, Don, Stella, and Christine Allen testified about the actions of Six and Petary on the evening Kathy was kidnapped. Stella testified Six had slit her throat and Christine testified Six had raped her. Six did not testify during the guilt or penalty phases, but his attorneys suggested Six was under Petary's influence and Petary had killed Kathy. During the penalty phase, seven members of Six's family testified Six is a good person. Six's mother testified Petary had abused both his own children and Six as a child. The jury found Six guilty of first-degree murder, but could not decide whether Six should be sentenced to death or life imprisonment.

The court then undertook Six's sentencing under Mo.Rev.Stat. § 565.030.4 (1986) and found beyond a reasonable doubt the existence of three statutory aggravating circumstances: Six murdered Kathy Allen to avoid arrest, her murder was committed during a kidnapping, and she was killed because of her status as a potential witness in her kidnapping. See id. § 565.032.2(10)-(12). As an additional, nonstatutory aggravating circumstance, the court found Six had raped Christine Allen. The court also found the following mitigating circumstances existed: Six had no significant criminal history, see id. § 565.032.3(1); he confessed to law enforcement officers; he was a good son, brother, and family member; and he had been abused as a child. The court decided the mitigating circumstances did not outweigh the aggravating circumstances, and the aggravating circumstances were sufficient to warrant imposition of the death penalty.

Six appealed his conviction and sentence, and the denial of his motion for postconviction relief under Missouri Supreme Court Rule 29.15. The Missouri Supreme Court consolidated Six's appeals and affirmed. State v. Six, 805 S.W.2d 159, 173(Mo.) (en banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991). Six filed a motion to recall the mandate and a state habeas petition under Missouri Supreme Court Rule 91, and the Missouri Supreme Court summarily denied the motions. Six then filed this federal habeas petition and the district court denied relief. Six v. Delo, 885 F.Supp. 1265, 1286 (E.D.Mo.1995). Six appeals. We affirm.

I.

Six contends he was denied effective assistance of counsel at his trial's penalty phase. To succeed on an ineffective assistance claim, Six must show his attorneys' performance was deficient and the deficient performance prejudiced him. Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995).

Six first challenges his trial attorneys' failure to obtain a neuropsychological evaluation of Six and to present the results as mitigating evidence during the penalty phase. This failure was not constitutionally deficient because Six's trial attorneys conducted a reasonable investigation of Six's mental status. Id. The attorneys reviewed psychiatric evaluations that had been prepared for Six's earlier federal trial for Kathy's kidnapping. The federal evaluations suggested Six was under duress and had below average intelligence. The attorneys had a psychiatrist, Dr. A.E. Daniel, perform a thorough examination of Six. Dr. Daniel conducted a psychiatric interview of Six for about three hours and reviewed documents provided by Six's attorneys, including a synopsis of the case and another doctor's evaluation. Dr. Daniel evaluated both Six's competency to stand trial and his mental status at the time of the offense. Dr. Daniel's report stated Six had a history of a disorganized childhood, hyperactivity, deafness, and depression. The report concluded Six suffered from drug and alcohol abuse and had a personality disorder with antisocial features. In Dr. Daniel's view, Six was competent to stand trial, was using alcohol and drugs at the time of the offense, and was under duress because of Petary's influence.

According to Six, Dr. Daniel's report alerted Six's attorneys to the need for a full neuropsychological evaluation like the one Dr. Richard Wetzel conducted after the trial. Dr. Wetzel concluded Six had mild brain dysfunction that hampered his ability to control his attention and behavior, and controlled substance abuse could worsen this dysfunction. In Dr. Wetzel's opinion, if Six had been using drugs or alcohol heavily for at least a week before the offense, Six had moderate neuropsychological dysfunction when he committed the crime. Dr. Wetzel stated this dysfunction could have affected Six's ability to premeditate.

Counsel's decision not to further investigate Six's mental status was not constitutionally deficient because the decision was reasonable from counsel's perspective when the decision was made. Id. at 753-54; O'Neal v. Delo, 44 F.3d 655, 660 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 129, 133 L.Ed.2d 78 (1995). Dr. Daniel's report did not recommend any further examination and we cannot say his findings would suggest to a competent lawyer that further evaluation was necessary. See Sidebottom, 46 F.3d at 753-54; O'Neal, 44 F.3d at 660. Further, during the state postconviction hearing, one of Six's attorneys testified Six's behavior and statements gave counsel no reason to question Six's mental faculties. See O'Neal, 44 F.3d at 660. In deciding not to seek further examination, Six's attorneys reasonably relied on Dr. Daniel's report and the lack of any behavior by Six indicating an abnormal mental state. Sidebottom, 46 F.3d at 753-54; O'Neal, 44 F.3d at 660. In sum, the attorneys' failure to obtain a neuropsychological evaluation was not deficient performance. Sidebottom, 46 F.3d at 753-54; O'Neal, 44 F.3d at 660. Thus, we need not decide whether Six was prejudiced. O'Neal, 44 F.3d at 660 n. 6.

Six next attacks his trial attorneys' failure to present other mitigating evidence during the penalty phase. Six contends his attorneys should have presented evidence that he was treated for hyperactivity beginning in preschool, was a neglected child who grew up in a seriously dysfunctional home monitored by social services agencies, and had a hearing loss that was untreated for three years in elementary school.

Six's trial attorneys learned of this additional mitigating evidence during the investigation, but decided the evidence was not significant enough to be helpful. Although the additional evidence would have been relevant during the penalty phase and had some mitigating value, Schneider v. Delo, 85 F.3d 335, 340 (8th Cir.1996), counsel's decision not to present the evidence was reasonable. Sloan v. Delo, 54 F.3d 1371, 1384 (8th Cir.1995) (reviewing the reasonableness of counsel's belief de novo), cert. denied, --- U.S. ----, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996). Counsel testified his penalty-phase strategy was to show Six was a human being whom others cared about, and to present evidence of Six's positive character traits. Counsel decided not to use Dr. Daniel as a witness to prevent the state from using testimony from another psychiatrist to whom Six had made "quasi-confessions." The additional mitigating evidence could have been presented in other ways, but counsel reasonably believed the evidence was not significant enough to build sympathy for Six because of the horrible facts of the case.

Even if counsel's decision not to present the evidence was unreasonable, we cannot say the additional evidence probably would have made a difference at sentencing. Schneider, 85 F.3d at 340-41 (defendant not prejudiced by failure to present mitigating evidence of attention deficit disorder, insomnia, and social history). It was apparent Six had a hearing problem because counsel had Six remove and adjust his hearing aid during the trial. Six's mother testified he had been abused as a child, and the judge credited the testimony in finding the mitigating circumstance that Six had been abused. We do not believe the...