Smith v. McCormick

• Decision Date: 07 September 1990
• Docket Number: No. 88-4115,88-4115
• Citation: 914 F.2d 1153
• Parties: Ronald Allen SMITH, Petitioner-Appellant, v. Jack McCORMICK, * Warden, Montana State Prison, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1153

914 F.2d 1153

Ronald Allen SMITH, Petitioner-Appellant, v. Jack McCORMICK, ^* Warden, Montana State Prison et al., Respondents-Appellees No. 88-4115.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1989.

Decided Sept. 7, 1990.

Cliff Gardner, Fiedler Gardner & Derham, San Francisco, Cal., for petitioner-appellant.

Betsy Brandborg, Asst. Atty. Gen., and Dorothy McCarter, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.

Appeal from the United States District Court for the District of Montana.

Before FLETCHER, FERGUSON, and FERNANDEZ, Circuit Judges.

FERGUSON, Circuit Judge:

Ronald Smith appeals from the U.S. District Court's summary judgment denying his petition for writ of habeas corpus. Smith, sentenced to death for the murder of two Native American men in Montana, asserts numerous constitutional violations in the sentencing process.

I.

On August 3, 1982, Ronald Smith, then 24 years old, hitched a ride from the town of Red Deer in Alberta, Canada, toward the U.S.-Canadian border. He was accompanied by two other men, Rod Munro, a friend with whom Smith had spent time in jail, and Andre Fontaine, someone Smith had known only a few months. The three young men, lacking stable employment and having served time in Canadian jails, had decided they had no future in Canada and would set off for Mexico. Smith and Munro were heavy drug users; Smith apparently had begun using heroin and hallucinogens as a child, and had been consuming 10 to 20 tablets of LSD a day during the summer of 1982.

Without a car or much money, the three walked across the U.S. border into Montana and hitchhiked south, coming to East Glacier, Montana on August 4. Munro had purchased a large quantity of LSD for the trip; he testified that he and Smith consumed at least 40 "hits" each during August 3 and August 4.

In East Glacier the young men stopped in a bar at approximately one o'clock in the afternoon. There they drank beer and played pool with some others in the bar, including Harvey Mad Man, Jr., and Thomas Running Rabbit, Jr. After about an hour, Smith, Munro and Fontaine bought more beer to take with them and started walking west along Highway 2, hoping to hitch a ride. They were picked up by Mad Man and Running Rabbit. The five men, all drinking, drove until Mad Man and Running Rabbit decided to stop and urinate in some roadside bushes.

When Mad Man and Running Rabbit returned to the car, Smith produced a gun, and Munro a knife, which they had carried with them from Canada. Intending to steal the car, Smith and Munro walked Mad Man and Running Rabbit back into the bushes. There Smith shot Mad Man. Smith then reloaded his gun and shot Running Rabbit. The two victims were killed instantly. Smith and Munro then returned to the car, and drove off. The car was recovered when Fontaine and Munro were later arrested for armed robbery in California. Fontaine linked Smith to the killings. Smith was arrested in Wyoming.

Smith was charged with two counts of aggravated kidnapping and two counts of deliberate homicide. On November 1, 1982, Smith pled not guilty to the crimes.

On February 23, 1983, Smith moved to change his plea to guilty, and asked for the death penalty. He stated that he wanted a death sentence because he had received threats against his life from Native American prisoners, and because, having spent nearly half his life in prison, he saw no reason to continue living in prison.

Following acceptance of the guilty plea, a sentencing hearing was held March 21, 1983, to consider aggravating and mitigating circumstances. The state presented no witnesses at the hearing. Smith testified, reiterating his request to die. He asserted that there were no circumstances mitigating his crimes. At the conclusion of the hearing, the court ordered Smith's execution.

Subsequently, however, Smith filed a motion for reconsideration of the death sentence and for the assistance of a court-appointed psychiatrist. At hearings on the motion for reconsideration on May 3, 1983, and December 1, 1983, Smith testified that when he changed his plea to guilty and asked to die he had been deeply depressed, and had purposefully omitted reference to any mitigating factors. He explained that upon his arrest for the shootings he had been placed in solitary confinement without fresh air, sunlight, or exercise. He now sought reconsideration of the sentence because, having been transferred to better prison conditions, he was more optimistic about surviving in prison, and because he had been visited by his family, who urged him to live.

At the hearings on reconsideration of the death sentence, Smith stated that for the previous five years he had been addicted to LSD, and that on the day of the shooting he had been in a dissociative state. Fontaine and Munro also testified and confirmed Smith's drug and alcohol use. Munro, who had consumed LSD and alcohol with Smith, testified that he (Munro) was hallucinating on the day of the crime.

Smith discussed his criminal background, indicating that none of his previous crimes had involved violence. He stated his interest in rehabilitation. He brought forward character evidence supporting his claim that violence was out of character, and that he was capable of rehabilitation. He continued to admit guilt for the shootings.

In light of the contradictory testimony on possible mitigation, the trial court on June 10, 1983 ordered a psychiatrist to examine Smith and prepare a report for the court. Defense counsel objected to the psychiatrist's reporting directly to the court rather than acting as an aid to the defense. Notwithstanding the objection, the psychiatric examination was held under direction of the court and reported directly to the court. The examination was limited to the specific question of mental capacity on the day of the killings.

The psychiatrist testified at the December 1, 1983 reconsideration hearing. In the psychiatrist's opinion, even assuming use of large quantities of LSD immediately before the crime, such usage did not substantially affect Smith's mental capacity or actions. Following this testimony, Smith petitioned for the appointment of another psychiatrist. That motion was denied, and on February 15, 1984, the trial court filed its order sentencing Smith to die. The court found that aggravating circumstances justifying a death penalty existed under Mont.Code Ann. Sec. 46-18-303, and that there were no mitigating circumstances "sufficiently substantial to call for leniency".

The Montana Supreme Court affirmed the sentence, State v. Smith, 217 Mont. 461, 705 P.2d 1087 (1985), petition for rehearing denied, 217 Mont. 453, 705 P.2d 1110 (1985). A writ of certiorari to the U.S. Supreme Court was denied, Smith v. Montana, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), as was post-conviction relief in the Montana Supreme Court. Smith then filed for federal habeas relief, which was denied on summary judgment. He now timely appeals from the district court.

II.

A.

Smith asserts that his sentencing violated due process because he was denied expert psychiatric assistance in preparing his claims of mitigating circumstances. We agree.

Under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), when an indigent defendant places his mental state at issue, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. at 83, 105 S.Ct. at 1096. This right applies not only at trial, but also in "the sentencing phase:"

"We have repeatedly recognized the defendant's compelling interest in fair adjudication at the sentencing phase of a capital case. The State, too, has a profound interest in assuring that its ultimate sanction is not erroneously imposed, and we do not see why monetary considerations should be more persuasive in this context than at trial.

....

[W]here the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase."

Id. at 83-84, 105 S.Ct. at 1096-97 (emphasis added).

The right to psychiatric assistance does not mean the right to place the report of a "neutral" psychiatrist before the court; rather it means the right to use the services of a psychiatrist in whatever capacity defense counsel deems appropriate--including to decide, with the psychiatrist's assistance, not to present to the court particular claims of mental impairment. As the 7th Circuit observed, under Ake,

The independent psychiatric expert performs three functions which may be crucial in cases where mental health is a substantial issue. First, the expert can aid a defendant in determining whether a defense based on mental condition is warranted by the defendant's particular circumstances. Second, the expert can coherently present to the jury his or her observations of the defendant, as well as his or her understanding of the defendant's mental history, and explain to the jury how those observations and that history are relevant to the defendant's mental condition. Finally, the expert can "assist in preparing the cross-examination" of psychiatric experts retained by the government.

United States v. Fazzini, 871 F.2d 635, 637 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989) (citations omitted).

Consistent with the adversarial nature of the fact-finding process and the quasi-scientific nature of psychiatric opinion, the Ake court explicitly rejected the notion that psychiatrists can be expected to reach a unanimous diagnosis of the current mental condition of a defendant and unanimous prognosis as to future expected conduct or that...