Smith v. Armontrout, 88-2359

• Decision Date: 08 December 1988
• Docket Number: No. 88-2359,88-2359
• Citation: 865 F.2d 1502
• Parties: Gerald SMITH, Appellant, v. William ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1502

865 F.2d 1502

Gerald SMITH, Appellant, v. William ARMONTROUT, Appellee.

No. 88-2359.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1988.

Decided Dec. 8, 1988.

C. John Pleban, St. Louis, Mo., for appellant.

Stephen Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, and HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, en banc.

ARNOLD, Circuit Judge.

This is a habeas corpus case initially brought by Gerald Smith, a Missouri state prisoner under sentence of death. On September 29, 1988, a panel of this Court denied a certificate of probable cause, thus effectively dismissing the appeal from the judgment of the District Court, which had dismissed the habeas petition on its merits. Smith v. Armontrout, 692 F.Supp. 1079 (W.D.Mo.1988) (Wright, C.J.). Our panel took this action because Smith himself had asked for it, and the panel was convinced of his legal capacity to make that decision. Smith v. Armontrout, 857 F.2d 1228 (8th Cir.1988) (per curiam).

The Missouri Public Defender Commission and Terry Brummer, Director of the Office of the State Public Defender, who had been acting as next friends to try to prevent Smith's execution, then filed a petition for rehearing by the panel, with suggestions for rehearing en banc. This petition was filed on September 30, 1988. Smith's execution had been set by the Supreme Court of Missouri for October 4, 1988, and no stay of execution was in effect. While the petition for rehearing was pending, and before we had ruled on it, three Members of this Court, acting as individual circuit judges, granted an emergency temporary stay of the execution. They did so to afford themselves time to study the record in order to determine how to cast their votes on the petition for rehearing en banc. Smith v. Armontrout, No. 88-2359 (order of Lay, C.J., Heaney and McMillian, JJ., filed October 3, 1988). A motion of the respondent to vacate this stay was denied by the Court en banc, two judges (Fagg and Magill, JJ.) dissenting, and the Supreme Court also declined to set aside the three-judge stay. Armontrout v. Smith, --- U.S. ----, 109 S.Ct. 200, 102 L.Ed.2d 170 (1988). Thus, the execution did not take place on October 4, and the stay remained in effect pending our decision on the petition for rehearing. A supplement to the petition has also been filed and considered by the Court.

We now deny the petition for rehearing en banc. A brief summary of the history of this case will suffice to explain our reasons.

The murder of Karen Roberts took place in 1980. Smith was convicted of this crime and sentenced to death in 1981. The conviction was upheld on direct appeal and on collateral review in the state courts. From time to time, Smith changed his mind about pursuing efforts to have his conviction set aside. By the time the habeas corpus petition now before us was filed in the District Court, Smith had decided he did not want to pursue his remedies. A series of next friends attempted to press them on his behalf, however, claiming that Smith was not competent, and that his decision to accept the death sentence was not voluntary. Accordingly, the District Court held an extensive and searching evidentiary hearing, including testimony from psychiatric experts on both sides of the issues. After this hearing, at which the burden of proof was placed on the State to show that Smith's decision was both competent and voluntary, the District Court found as a fact that Smith had the capacity to make his own decision, and that he had made it voluntarily. Smith v. Armontrout, 632 F.Supp. 503 (W.D.Mo.1986).

On appeal by the next friends, we affirmed. 812 F.2d 1050 (8th Cir.1987). After carefully studying ¹ the entire record, we held that the District Court's findings were not clearly erroneous. ² The next friends filed a petition for rehearing, with suggestions for rehearing en banc. The petition was denied. Not a single judge voted to grant it. In fact, no Member of the Court even requested a poll on the petition. ³ The Supreme Court denied certiorari. --- U.S. ----, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). No Member of that Court indicated a desire to review the case.

In the meantime, Smith had changed his mind, apparently, in part at least, because he had gotten married. He decided to prosecute his habeas petition, and the District Court proceeded to hear and determine the merits of the petition. As we have noted, the District Court dismissed the petition on the merits. Smith then reverted to a determination to acquiesce in his sentence, and asked that the case be dropped. His court-appointed counsel, acting out of a commendable abundance of caution, filed a notice of appeal anyway, which we treated, in accordance with Fed.R.App.P. 22(b), as an application for a certificate of probable cause. Smith then wrote the Clerk of this Court to ask that the appeal be dismissed. Since we had previously affirmed his competence to make such a decision, we knew of no reason why his wish should not be granted, but, because life was at stake, we did not simply deny the application out of hand, but instead entered a show-cause order indicating our intention to do so if no good reason to the contrary could be shown. Smith v. Armontrout, 858 F.2d 1303 (8th Cir.1988) (per curiam).

As a result of this order, the current set of next friends entered their appearance, alleging certain facts that, they contended, required a new evidentiary hearing on Smith's competence. The following facts were alleged:

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 [sic] 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.

5. Lyn [sic] Smith's recent decision to encourage her husband to abandon his appeals and acquiesce in his execution.

In the panel opinion which gave rise to the present en banc proceedings, we held these allegations legally insufficient. The Court en banc now adopts the panel opinion. We repeat, for the reasons given in that opinion, that the facts alleged by the next friends, even if fully established by evidence, do not amount, in law, to a sufficient reason to reexamine the previous finding, which is now the law of this case. Conspicuously absent are any allegations of new psychiatric examinations or new conduct by Smith, other than the facts of his marriage and his changes of mind. As we said in the panel opinion:

We think these allegations, assuming their truth for present purposes, are legally insufficient to create a genuine issue of material fact as to Smith's present mental capacity. Subparagraph C is simply a factual recitation that habeas litigation has occurred in the District Court. Subparagraphs B and D accurately state that Smith has changed his mind in the past ..., but competent people do change their minds, even about very important matters, and past changes of mind were among the arguments that we considered and rejected when we considered the question of Smith's capacity last year. Subparagraphs A and E merely recount Smith's marriage and his wife's decision to encourage him to abandon his appeals. We have not heard from Mrs. Smith, ⁴ but we assume that the motion is accurate in this respect. Even so, no genuine issue of her husband's capacity is raised. It is not at all unnatural for someone to consult with his or her spouse about important matters and to be influenced by the spouse's advice. Nor do we have any reason to suppose that Mrs. Smith is exercising any undue influence, or that she is acting for any reason other than her own sincere belief as to her husband's best interests.

857 F.2d at 1229-30.

In their petition for rehearing, the next friends make the same arguments that were before the panel. In addition, they have submitted the affidavits of three psychiatrists, none of whom has ever examined Smith, but all of whom think we should order a new evidentiary hearing. ⁵ The affidavits are substantially similar. They opine that the new facts alleged by the next friends, allegations we have set out above, show that "a medical presumption exists that Smith has experienced a chronicity of stress factors which could provide marked psychic disorganization in Mr. Smith." Affidavit of Moisy Shopper, M.D., p 7(A). In addition, Smith's marriage is said to be "a very significant psychological event" and "not an ordinary marriage" (Smith being on death row). Id. p 7(B).

These opinions are insufficient to require a new mental examination. In the first place, they are carefully hedged and tentative. It is not said, for example, that Smith is exhibiting "marked psychic disorganization," but only that "a medical presumption exists ... which could" create such a condition. In the second place, the issue is more one of common sense and good moral judgment (fields in which the competence of judges should equal that of psychiatrists) than of medical expertise. In expressing these views we mean no disrespect or deprecation of the three physicians who have come forward to express their views. They have done so in all good faith to be of assistance to us and to the public interest in fair adjudication. We simply do not believe that their opinions come up to the required legal threshold.

It is important to remember that the...