Smith v. Moore

• Decision Date: 04 March 1998
• Docket Number: No. 97-18,97-18
• Citation: 137 F.3d 808
• Parties: Andrew Lavern SMITH, Petitioner-Appellant, v. Michael MOORE, Commissioner, South Carolina Department of Corrections; Charles Condon, Attorney General, South Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 808

137 F.3d 808

Andrew Lavern SMITH, Petitioner-Appellant, v. Michael MOORE, Commissioner, South Carolina Department of Corrections; Charles Condon, Attorney General South Carolina, Respondents-Appellees.

No. 97-18.

United States Court of Appeals Fourth Circuit.

Argued Dec. 1, 1997.

Decided March 4, 1998.

ARGUED: John Henry Blume, III, Cornell Law School, Ithaca, New York, for Appellant. Lauri J. Soles, Assistant Attorney General, Columbia, South Carolina, for Appellees. ON BRIEF: Sheri Lynn Johnson, Cornell Law School, Ithaca, New York; Teresa L. Norris, Center For Capital Litigation, Columbia, South Carolina, for Appellant. Charles M. Condon, Attorney General, John W. McIntosh, Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Robert F. Daley, Assistant Attorney General, Columbia, South Carolina, for Appellees.

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG joined. Judge MOTZ wrote a separate opinion concurring in all of the opinion of the Court except for Part II.B.

WILLIAMS, Circuit Judge:

On January 14, 1984, a South Carolina jury convicted Andrew Smith of the brutal murders of Christy and Corrie Johnson. Following the jury's recommendation, the trial court sentenced Smith to death. After exhausting his state appeals, Smith petitioned the federal district court for habeas corpus relief. See 28 U.S.C.A. § 2254 (West 1994). ¹ The district court denied his petition for a writ of habeas corpus and granted his motion for a certificate of probable cause to appeal. On appeal, we conclude that none of the numerous claims raised by Smith provide a basis for habeas relief. Accordingly, we affirm.

I.

On Saturday, May 28, 1983, Smith, armed with a pistol and a knife, went to the home of Christy and Corrie Johnson to see whether he could borrow their car. After the eighty-six year old Mr. Johnson refused, Smith struck him with such force that he fell to the floor. When the eighty-two year old Mrs. Johnson came to her husband's aid, Smith reached for his knife and stabbed her several times. Smith then stabbed Mr. Johnson as he got up from the floor to help his wife.

During the course of the attack, Mrs. Johnson was stabbed seventeen times on and about her face, back, chest, and hands. Mr. Johnson suffered twenty-seven stab wounds, including several defensive wounds, on and about his face, neck, chest, hands, wrists, and back. In addition to the stab wounds, both victims had "blunt force" injuries consistent with having been struck with a pistol. ² Dr. Joel Sexton, the forensic pathologist who performed the Johnsons' autopsies, testified that most of the Johnsons' wounds and injuries were inflicted before death and during consciousness.

After leaving his knife in Mrs. Johnson's back, Smith took the keys to the Johnsons' car and drove away from the scene. The following day, the police found the Johnsons' car stripped of its wheels, battery, spare tire, and various other parts. Based upon several different tips, the police lawfully searched the residence of Smith's mother. There, the police found the parts taken from the Johnsons' car.

Smith was arrested and charged with the two murders. After waiving his Miranda rights, Smith confessed to brutally murdering the Johnsons. ³ In addition, Smith identified the knife found in Mrs. Johnson's back as the knife he used to stab the Johnsons. Moreover, Smith told the police that he hid the pistol he had used during the murders in the false ceiling at his place of employment.

Smith was indicted in October of 1983 on two counts of murder. At that time, the State notified Smith that it intended to seek the death penalty. Before the trial began, the trial court held a hearing to determine Smith's competency to stand trial. Dr. John Dunlap, a psychiatrist at the South Carolina Department of Mental Health, testified at the hearing that Smith was capable of assisting his counsel and competent to stand trial. Based upon the evidence introduced at that hearing, the trial court specifically found, beyond a reasonable doubt, that Smith was competent to stand trial.

Smith's trial began on January 9, 1984. Smith raised an insanity defense and presented the testimony of Dr. Helen Clark, a clinical psychologist. Dr. Clark testified that Smith suffered from schizophrenia and a dissociative disorder at the time of the murders and could not distinguish right from wrong. Smith elected not to take the stand in his own defense. In reply, the State introduced the testimony of Dr. Spurgeon Cole, also a clinical psychologist. Dr. Cole testified that Smith's test results did not support Dr. Clark's conclusion that Smith was legally insane at the time of the murders. On January 14, 1984, the jury rejected Smith's insanity defense and found him guilty on both counts of murder. At the conclusion of the subsequent sentencing phase, the trial court, following the jury's recommendation, sentenced Smith to death.

On direct appeal, the South Carolina Supreme Court affirmed Smith's convictions and death sentences. See State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985). The United States Supreme Court denied Smith's petition for a writ of certiorari. See Smith v. South Carolina, 475 U.S. 1031, 106 S.Ct. 1239, 89 L.Ed.2d 347 (1986). Smith filed an application for post-conviction relief (PCR) in state court on July 9, 1986. After an evidentiary hearing, the state PCR court denied Smith's application as to the guilt phase of his trial, but ordered that Smith be resentenced pursuant to Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). ⁴ Neither party appealed this order.

On October 26, 1987, Smith's resentencing trial began. After four days of testimony, the jury recommended the imposition of the death sentence. Following the jury's recommendation, the trial court once again sentenced Smith to death. On direct appeal, the South Carolina Supreme Court affirmed this death sentence. See State v. Smith, 298 S.C. 482, 381 S.E.2d 724 (1989). The United States Supreme Court denied Smith's petition for a writ of certiorari. See Smith v. South Carolina, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990).

Smith filed an application for PCR in state court on August 13, 1990. After an evidentiary hearing, the state PCR court denied Smith's application. The South Carolina Supreme Court denied Smith's petition for a writ of certiorari. The United States Supreme Court again denied Smith's petition for a writ of certiorari. See Smith v. South Carolina, 515 U.S. 1126, 115 S.Ct. 2285, 132 L.Ed.2d 288 (1995).

On January 24, 1996, Smith filed a habeas petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the District of South Carolina. On August 27, 1996, a hearing was held before a federal magistrate judge. In February of 1997, the magistrate judge issued a 151-page Report and Recommendation in which he recommended that the district court deny Smith's request for an evidentiary hearing and federal habeas corpus relief. In June of 1997, the district court adopted the Report and Recommendation and denied Smith's petition for federal habeas relief.

On appeal, Smith contends: (1) that South Carolina's "physical torture" aggravating circumstance is unconstitutional; (2) that his counsel were ineffective for failing to present evidence in mitigation of punishment at his resentencing trial; (3) that he was incompetent to stand trial; (4) that the State violated his Sixth Amendment right to counsel; (5) that the grand jury and the petit jury were selected in violation of the Equal Protection Clause; (6) that the trial court's instructions on expert testimony and insanity violated the Sixth Amendment; and (7) that the trial court erroneously instructed the jury that its sentencing recommendation must be unanimous. We address Smith's arguments in turn.

II.

A.

In his federal habeas petition, Smith first contends that South Carolina's "physical torture" aggravating circumstance does not require an intent to torture and, therefore, fails to genuinely narrow the class of persons eligible for the death penalty. In the alternative, Smith contends that even if the physical torture aggravating circumstance requires an intent to torture, a finding of intent was unsupported by the evidence in this case.

1.

To satisfy the Eighth and Fourteenth Amendments, a state's capital sentencing scheme must suitably channel or limit the jury's discretion in imposing the death penalty. See Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3098-99, 111 L.Ed.2d 606 (1990); Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (plurality opinion). Whether a particular aggravating factor suitably channels or limits a jury's discretion depends, in part, on whether it "genuinely narrow[s] the class of persons eligible for the death penalty." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). An aggravating factor does not genuinely narrow the class of persons eligible for the death penalty "[i]f the sentencer fairly could conclude that [it] applies to every defendant." Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993). Smith contends that South Carolina's "physical torture" aggravating factor fails to genuinely narrow the class of persons eligible for the death penalty because it does not require an intent to torture separate and distinct from the intent to kill. We disagree.

Under South Carolina law, physical torture exists "when the victim is intentionally subjected to serious physical abuse prior to death." State v. Smith, 298 S.C. 482, 381 S.E.2d 724, 726 (1989) (emphasis added); see also State v. Elmore, 279 S.C. 417, 308 S.E.2d 781, 785 n. 2 (1983). Thus, despite Smith's...