Smith v. Armontrout, 88-2359
| Decision Date | 29 September 1988 |
| Docket Number | No. 88-2359,88-2359 |
| Citation | 857 F.2d 1228 |
| Parties | Gerald SMITH, Appellant, v. William ARMONTROUT, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Eugene G. Bushman, Jefferson City, Mo., for appellant.
Stephen Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
This appeal concerns Gerald Smith, who is under sentence of death for capital murder in Missouri. The sentence is presently scheduled to be carried out on October 4, 1988, at 12:01 a.m. No stay of execution is presently in effect.
The case comes before us on a notice of appeal filed by Smith's court-appointed counsel, Eugene G. Bushmann, Esq. We are treating this notice as an application for certificate of probable cause. See Fed.R.App.P. 22(b). In the meantime, Smith himself has written the Clerk of this Court to say that the filing of the notice of appeal was unauthorized, that he wants the appeal dismissed, and that he wants the sentence carried out without further review. (The case has been reviewed on direct appeal by the state courts, and the United States District Court for the Western District of Missouri, on August 11, 1988, denied a petition for habeas corpus, 692 F.Supp. 1079.)
If he is competent, it is of course up to Smith himself whether to pursue the appeal. It is his case, and it should be dismissed if he wants it dismissed. The District Court, after a thorough and careful evidentiary hearing, has found as a fact that Smith is competent and is capable of making a rational decision. We affirmed this finding in Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). The evidentiary hearing on which the finding was based was held more than two years ago, but we believe the finding continues to be controlling, in the absence of any reason to suppose that Smith's mental condition has changed materially for the worse in the intervening time.
On September 23, 1988, we entered an order requiring court-appointed counsel to show cause why the application for certificate of probable cause should not be denied. We directed that a copy of the order be furnished to the appellant himself. Smith v. Armontrout, 858 F.2d 1303 (8th Cir.1988) (per curiam).
Counsel has now responded to the order, stating, in essence, that Smith has asked him not to pursue the appeal. Counsel further states that Smith has reiterated this position since the filing of the notice of appeal, and that he desires the execution of his death sentence. Counsel concludes, therefore, that he is aware of no legal cause why the certificate of probable cause should not be denied.
Shortly thereafter, on September 28, 1988, another pleading was filed. The Missouri Public Defender Commission and Terry E. Brummer, in his capacity as Director of the Office of the State Public Defender, seek leave to appear as next friends and ask that the execution be stayed pending a remand to the District Court for a new hearing on Smith's competency to waive his further remedies. Paragraph 10 of this motion alleges the following facts in support of this request:
The Commission and Brummer are aware of several events in Smith's life which need to be examined at a new competency hearing to determine their effect on Smith's present "waiver" decision. The events are:
A. Gerald Smith's marriage to Lyn Smith.
B. Gerald Smith's decision to change his mind about waiving his appeals reflected in his filing of a federal habeas corpus petition in the federal District Court which is the subject of this appeal.
C. The litigation concerning Smith's federal habeas corpus petition in the District Court.
D. After the District Court's decision to deny Smith's federal habeas corpus petition, Smith's apparent decision, reflected in his September 23, 1988 letter, to change his mind again, abandon his appeals, and acquiesce in his execution.
E. Lyn Smith's recent decision to encourage her husband...
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United States v. El-Mezain
...believes it to be in the defendant's best interest—if the defendant chooses to forgo an appeal. For example, in Smith v. Armontrout, 857 F.2d 1228, 1230 (8th Cir.1988), the Eighth Circuit held that a notice of appeal filed by court-appointed counsel on behalf of a capital murder defendant s......
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Cooke v. State
...Id. 170. Red Dog v. State, 620 A.2d 848 (Del. 1993). 171. Id. at 848. 172. Id. at 852-53. 173. Id. at 854 (citing Smith v. Armontrout, 857 F.2d 1228, 1229 (8th Cir.1988)). 174. See Nixon, 543 U.S. at 187, 125 S.Ct. 551. 175. See generally Haynes v. Cain, 149 F.3d 1174 (5th Cir. 1998). 176. ......
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Whitmore v. Lockhart, PB-C-89-341.
...477 U.S. at 422, 106 S.Ct. at 2608 (Powell, J., concurring in part and concurring in judgment)). See also Smith v. Armontrout, 857 F.2d 1228, 1230 (8th Cir.1988) (per curiam) (it is a violation of the Eighth Amendment to execute someone who lacks the capacity to understand the nature and pu......
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Whitmore v. Lockhart, 92-3307
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