Smith v. Kemp, Civ. A. No. 86-8-ATH.

• Decision Date: 10 July 1987
• Docket Number: Civ. A. No. 86-8-ATH.
• Citation: 664 F. Supp. 500
• Parties: William Alvin SMITH, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. District Court — Middle District of Georgia

664 F. Supp. 500

William Alvin SMITH, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent.

Civ. A. No. 86-8-ATH.

United States District Court, M.D. Georgia, Athens Division.

July 10, 1987.

J. Robert Daniel, Macon, Ga., Stephen H. Glickman, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, D.C., Stephen B. Bright, Atlanta, Ga., for petitioner.

Dennis R. Dunn, Asst. Atty. Gen., Atlanta, Ga., for respondent.

FITZPATRICK, District Judge.

This case is before the court on Petitioner's motion for a writ of habeas corpus. Because the court has concluded that Petitioner's habeas should be granted on one count contained in Petitioner's petition, the court will not address all of the other counts in the petition. The facts relevant to the count on which the habeas is granted are set forth below. The ground on which the court has decided to grant Smith's habeas concerns his waiver of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

I. FACTS

On September 14 and 15, 1981, in the Superior Court of Oglethorpe County, Georgia, Petitioner William Alvin Smith was tried on charges of malice murder and armed robbery. He was convicted on both counts and sentenced to death by electrocution for the offense of murder, and life imprisonment for the offense of armed robbery. The subsequent history of the case is set forth in Paragraphs 8 through 10 of Petitioner's petition for a writ of habeas corpus. Petitioner has properly followed all procedural prerequisites before filing in this court. See Document 4, filed January 29, 1986.

The death penalty sentence was based on the sole statutory aggravating circumstance that the murder "was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim." O.C.G.A. § 17-10-30(b)(7) (1982). The circumstances of Petitioner's offense and trial were recently summarized by the United States Supreme Court as follows:

The Petitioner is mentally retarded, with an IQ of 65 and mental abilities roughly equivalent to those of a ten-year old child. He was tried for the murder of one Dan Turner, a friend of the petitioner and his family. There were no eyewitnesses to the crime. The petitioner had gone in to Turner's grocery store to buy some cigarettes. The petitioner testified at trial that he grabbed Turner when the latter opened the cash register. Turner reacted by picking up a hammer, and the petitioner then stabbed him and hit him with the hammer after it fell from the victim's hand. Petitioner took money from the cash register and Turner's wallet and fled.

Petitioner turned himself in to the police and gave a lengthy statement in which he admitted stabbing Turner. When asked about the reasons for his actions, petitioner stated that he had wanted to get money. At trial, however, petitioner stated that he had not entered the store intending to rob Turner, and did not know why he had grabbed Turner as the latter was getting petitioner's cigarettes.

A psychiatrist who examined the petitioner stated that the petitioner showed considerable remorse in discussing the murder. Petitioner testified at trial that he `didn't mean to kill Mr. Dan,' but had gotten `carried away' after he saw the victim wielding the hammer in what petitioner interpreted as a threatening manner. There was evidence that the petitioner was under considerable stress in the days proceeding the murder. Petitioner's counsel argued that petitioner was insane or, at minimum, lacked the requisite mental intent because of his retardation. Nevertheless, the jury found petitioner guilty of malice murder and armed robbery and sentenced him to death.

Smith v. Francis, 474 U.S. 925, 106 S.Ct. 260-261, 88 L.Ed.2d 266 (1985) (Marshall J., dissenting from denial of certiorari).

It is undisputed that petitioner is mentally retarded, with an overall IQ that places him in the bottom 2.2% of the population. Fisher affidavit at 17. He has a mental age equivalent to that of a ten or eleven-year-old child. At the evidentiary hearing held in this court on October 30, 1986, Petitioner presented the testimony of two expert witnesses who stated that, given the totality of circumstances, Petitioner could not possibly have "knowingly" or "intelligently" waived his Fifth Amendment right to remain silent and have retained or appointed counsel. See Miranda v. Arizona, 86 S.Ct. at 1628 (1966). The expert witness whom Respondent called did not disagree with the express findings of Petitioner's two experts.

Smith confessed to the crime after being read his Miranda rights, but also after several other events transpired.

Smith was arrested late at night after hiding from the authorities all day in a wooded area. He emerged from the woods only after his father asked him, over a loudspeaker, to turn himself in. He was transported to another county from that of his residence and held incommunicado in a private cell overnight. He was not allowed to speak with his family or friends, nor did he request counsel. The next morning, Smith was allowed to eat breakfast, his first meal in almost twenty-four hours, and the custodial interrogation began. Sheriff Gene Smith, who was known to Petitioner, and a Deputy received Smith's confession. During the interrogation, the Sheriff called Smith by his nickname, "Noodle."

Petitioner's first witness, Dr. Everett Clark Kuglar is a board certified psychiatrist with professional credentials encompassing general, administrative and forensic psychiatry. Kuglar testified that after evaluating Smith, Kuglar concluded that Smith had an IQ of 65, which places Smith within the range of mental retardation. Tr. of Evid. hearing, Oct. 30, 1986, p. 33. Smith's IQ is "significantly subaverage." Id. at 34. Kuglar testified that:

... I think behavioral impairments or the inability to cope or adapt are related to the intellectual deficiency, but individuals who are retarded have a great deal of difficulty with adapting behavior, they have flawed judgment, flawed impulse control, they usually fairly easily become anxious and somewhat confused, they are usually rather dependent individuals who do not cope well in stressful situations.... I think Smith's mental handicaps substantially impaired his capacity to conform under situations, especially where he would be under stress.

Id. at 37.

I think that this individual's intellectual limitations seriously question whether this man understood the consequences of confessing and whether or not he understood what his rights are. In our work with this man, you had to be very slow and very patient in describing things to him. It certainly appeared to me both from my evaluation of him and his testing that he understood that what he was doing was confessing, but I don't believe the man had an intellectual appreciation of what this confession would mean to him, nor do I think most people with an IQ in this range would have such an appreciation unless it was very carefully explained to them. What I can't comment on, because I wasn't there, is how carefully it was explained to him, how slow they went with this, but unless this was done very patiently and very slowly, I don't believe he has the intellectual capacity to understand what it would mean to him.

Id. at 70-71 (emphasis added).

Petitioner's counsel questioned Kuglar on whether or not the testimony from the Sheriff and Deputy who examined petitioner indicated that the appropriate precautions had been taken. Kuglar responded that:

I didn't see anything in there to indicate they had taken this amount of time. They just indicated they had told him about it.

Id. at 71.

Dr. Kuglar did not testify that a mentally retarded person can never waive his Miranda rights. However, in Smith's case, his dependency needs would be such that "he would have a very hard time not just fulfilling the request of an individual that had known him for many years." Id. at 72. The custodial interrogation was, of course, performed by an individual who had known Smith for many years and even had a nickname for him.

Petitioner's second expert, Dr. Brad Fisher, is a clinical correctional psychologist who has testified extensively in death penalty cases on the sides of both petitioners and respondents. Fisher has also done extensive research in the area of death row inmates.

Dr. Fisher agreed with Dr. Kuglar that Smith was a "person who was more dependent than the next, he could not have held down any sort of sophisticated job, he had poor impulse control ..." Dr. Fisher's testimony with regard to Smith's waiver under Miranda is as follows:

Q. Now based on your evaluation of Mr. Smith and also on your review of the evidence presented at the confession suppression hearing in this case, do you have an opinion as to whether his mental retardation affected his ability to understand and weigh his rights before he made the confession that he made to the Sheriff following his arrest?

. . . . .

A. It's my perception and professional opinion that it was very stressful, that it would be for anybody; in his particular situation, perhaps exacerbated by a lot of time out in the woods, switch in the jurisdiction where he got taken over to the other jail. I've described before the tendency for a retarded person to be more dependent as a personality characteristic than the next person. I think all these things came into play when the next morning he was asked and given his rights and wrote his confession.

. . . . . .

Q. Let me correct you. The record is that he did not write his confession.

A. It was written for him and signed by him. I don't think that he did it knowingly and willingly.

Id. at 152-153 (emphasis added).

Respondent's expert, Dr. Marcelo Delaserna, did not expressly disagree with Dr. Kuglar and Dr. Fisher as to their opinions of Smith's ability to knowingly and intelligently waive his rights. Id. at 223. In fact, Dr....