Smith v. Bowersox

• Decision Date: 29 November 2002
• Docket Number: No. 01-3272.,01-3272.
• Citation: 311 F.3d 915
• Parties: Keith A. SMITH, Appellant, v. Michael BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

311 F.3d 915

Keith A. SMITH, Appellant, v. Michael BOWERSOX, Appellee.

No. 01-3272.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2002.

Filed: November 29, 2002.

Rehearing and Rehearing En Banc Denied: January 30, 2003.

William Odle, argued, Kansas City, MO, for appellant.

Frank Jung, argued, Asst. Atty. Gen., Jefferson City, MO, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

After a jury trial in Missouri state court, Keith Smith (Smith) was convicted of committing a double murder. The jury sentenced Smith to life imprisonment for one of the murders, and the trial judge sentenced him to death for the other. The Missouri Supreme Court later affirmed Smith's conviction and the denial of his motion for post-conviction relief. Smith then filed this habeas petition. The district court¹ denied Smith's petition without a hearing, and Smith now appeals. We affirm.

I. BACKGROUND

In the fall of 1991, Smith was living as a guest in the Kansas City, Missouri, home of the Reverend Parris Campbell (Campbell). On the evening of November 17, 1991, Smith and Campbell were in a room downstairs while Campbell's housekeeper, Annie Miller (Miller), was upstairs making dinner. While they were alone downstairs, Smith choked Campbell, first with his arm and then with an electrical cord. Smith then went upstairs, took a knife from the kitchen, and went back downstairs where he began stabbing Campbell.

After he murdered Campbell, Smith went upstairs again and told Miller that Campbell needed her downstairs. Smith followed Miller downstairs, where he also strangled her, first with his hands and then with an electrical cord. Smith completed the second murder by going back upstairs, getting a pair of scissors, and using the scissors to stab Miller repeatedly.

At some point in the evening, Smith called a cousin for assistance. Smith placed the bodies of Campbell and Miller in the trunk of a car in Campbell's garage. After taking valuables from Campbell's home, Smith and his cousin got into another of Campbell's cars and drove away. The two men picked up Smith's girlfriend, Sylvia Ware (Ware), and all three went to a crack house where they traded Campbell's valuables for drugs. Smith spent the next six days in a series of motels smoking crack. He was arrested on November 23, 1991, as he and Ware were leaving a motel.

After his arrest, Smith signed a written waiver of his Miranda rights and was interrogated by John Fraise, a police detective (Detective Fraise). During the interview, but before he confessed, Smith told Detective Fraise, "I'm going to get the chair for this." Detective Fraise said, "No, you're not, because they don't do that in this state." Later, after Smith had agreed to confess, Detective Fraise asked Smith whether he had been promised anything in return for his statement. Smith replied, "You said I wouldn't get the chair." Detective Fraise denied ever making that statement, and then asked, "Are you sure [that's] what was said?" Smith responded, "I don't know how to put it, I don't know, it was like you know I ain't gonna get it, if I ... I don't know, you said I don't remember, I couldn't remember, I just forget."

Smith then confessed to murdering both Campbell and Miller. In describing the murders, Smith repeatedly made references to "Chucky," an animate doll from popular horror movies. Smith claimed that "Chucky" came out of a telephone and, at different points, either told Smith what to do or performed actions himself. A blood test taken twenty to twenty-four hours after the interview, while Smith was still in custody, showed positive results for cocaine and marijuana metabolites. However, Detective Fraise later testified that he thought Smith had used "Chucky" intentionally to describe his own actions, and that Smith was alert and did not appear to be under the influence of drugs during the interview.

Smith was tried almost two and a half years after the police interview. At trial, Smith was represented by a privately retained lawyer. Although Smith's family agreed to pay $7,500, the lawyer ultimately was paid only $4,000. The lawyer concentrated on trying to suppress Smith's confession. His efforts failed, and the confession was admitted into evidence. At trial, Smith's lawyer tried to show that Campbell provoked the murders by making a sexual proposition to Smith. Smith's lawyer called a single witness, a man who drove Campbell's car and who testified that Campbell had made sexual propositions to him in the past. On a Thursday afternoon, the jury found Smith guilty on two counts of first degree murder.

The penalty phase of the trial began the next day at 1:30 p.m. During the penalty phase, Smith's lawyer called four witnesses: (1) Smith, (2) his mother, Ernestine, (3) his grandmother, Ora, and (4) his girlfriend, Ware. Smith's mother and grandmother testified that Smith grew up in a broken home, began smoking marijuana at age six or seven, and was using drugs on a daily basis at the time of the murders. Ware testified that Smith was not a violent person.

The jury agreed on a sentence of life imprisonment for the murder of Campbell. The jury was unable to agree on a punishment for the murder of Miller, although it found at least one statutory aggravating factor. See Six v. Delo, 94 F.3d 469, 475 (8th Cir.1996).² Sentencing then passed to the trial judge, who imposed a sentence of death for the murder of Miller. See Mo. Rev.Stat. § 565.030.4 (1994).

After he was convicted and sentenced, Smith filed a pro se motion for post-conviction relief in the state court. See Mo. S.Ct. R. 29.15. The state motion court appointed a public defender to represent Smith. The public defender filed an amended motion for post-conviction relief with a request for an evidentiary hearing.

The 264 page amended motion contained numerous allegations, only a few of which are relevant on appeal. Smith alleged his trial lawyer failed sufficiently to investigate his mental health, intelligence level, history of substance abuse, and family history. According to the amended motion, Smith's lawyer had "ample evidence" that Smith "had a mental condition which would have ... mitigated punishment." Smith alleged he was prepared to present expert testimony, a variety of public records, and lay testimony from numerous witnesses, including his mother, grandmother, and girlfriend. Smith did not allege specifically what any witness would say or what any record would relate, nor did he produce any affidavits, expert reports, or records.

In ruling on Smith's request for post-conviction relief, the state motion court found Smith "failed to allege with any specificity what ... evidence or testimony counsel would have been able to present." On this basis, the state motion court rejected Smith's claims that counsel had been ineffective and denied his request for an evidentiary hearing.

Smith's appeal of the post-conviction ruling was consolidated with his direct appeal. On his appeal to the Missouri Supreme Court, Smith raised two issues relevant to this appeal: (1) whether his confession was voluntary, and (2) whether his lawyer rendered ineffective assistance by failing to conduct an investigation into his mental health and history of abuse. The Missouri Supreme Court affirmed Smith's conviction and sentence. See State v. Smith, 944 S.W.2d 901 (Mo. banc 1997). In upholding the trial court's finding that Detective Fraise had not coerced Smith's confession, the supreme court relied on Detective Fraise's characterization of Smith's mental state during the interview. Id. at 911-12. It also noted that Detective Fraise's comment that "`the chair' is not used in Missouri was, and is, a true statement." Id. at 912. As to Smith's assistance-of-counsel claim, the supreme court held that, except for the fact that he had suffered a "head injury," which the jury heard,³ Smith had alleged only conclusions and not facts. Id. at 923. In particular, the supreme court noted Smith had "failed to allege what information a second [mental health] evaluation would have produced." Id.

Smith then filed a petition for a writ of habeas corpus in federal district court. His federal petition contained a total of fifteen claims. The three claims relevant to this appeal are: (1) Smith was denied effective assistance of counsel because his attorney "failed to discover and present mitigating mental health evidence during the penalty phase"; (2) Smith was denied effective assistance of counsel because his attorney "failed to discover and present evidence of diminished mental capacity" during the guilt phase; and (3) the admission into evidence of Smith's confession to the police violated his constitutional rights. Smith supported his federal petition with affidavits and an expert report, and he requested an evidentiary hearing.

One of the affidavits filed in support of Smith's petition was submitted by his trial attorney. In the affidavit, Smith's attorney states that he "did no formal penalty phase preparation prior to the guilty verdict." He did not "interview or prepare any witnesses concerning the penalty phase testimony" or "investigate Mr. Smith's social, mental, physical, or environmental history." The attorney had read a mental evaluation prepared by a state psychologist who concluded that Smith does not suffer from mental disease or defect, based in part on the absence of any "reported history of major childhood illnesses, injuries or developmental difficulties." However, he "didn't give a thought to requesting a second mental evaluation."

Some of the factual assumptions of the state psychologist's report are contradicted by affidavits from Smith's mother, Ernestine. According to the affidavits, which were filed in support of the federal petition, Smith was conceived when Ernestine was fourteen years old. During the pregnancy, Ernestine smoked cigarettes, used marijuana, and drank heavily. Before...