Smith v. Procunier, 85-4001

Decision Date10 May 1985
Docket NumberNo. 85-4001,85-4001
Citation769 F.2d 170
PartiesMichael Marnell SMITH, Appellant, v. Raymond K. PROCUNIER, Director of the Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Richard Bonnie, Charlottesville, Va. (J. Lloyd Snook, III, Paxson, Smith, Gilliam & Scott; Richard J. Bonnie, Charlottesville, Va., on brief), for appellant.

James E. Kulp, Sr. Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen., Richmond, Va., on brief), for appellee.

Before WIDENER and MURNAGHAN, Circuit Judges and WARRINER, United States District Judge for the Eastern District of Virginia, sitting by designation.

MURNAGHAN, Circuit Judge:

It has not infrequently been observed that there must be a better, more expeditious, way for dealing with cases which present the most stressful and distressful decisions with which a judge or panel of judges may be faced, namely, those involving appeals from denials of habeas corpus relief to criminal defendants convicted and sentenced to die. The offense here occurred on May 23, 1977. Michael Marnell Smith was convicted by a jury in James City County, Virginia on November 2, 1977 for the capital murder and rape of a young woman. On the following day, November 3, 1977, the jury heard evidence at the penalty/sentencing phase and recommended a sentence of death. In doing so, the jury had before it the Commonwealth's claim that there were two separate aggravating circumstances, one of dangerousness, the other of vileness. The jury found separately, with respect to each aggravating circumstance, that it alone merited imposition of the death penalty.

There followed the usual panoply of legal maneuvers:

1. An automatic appeal to the Supreme Court of Virginia, which affirmed the conviction and the death sentence. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978).

2. A denial by the Supreme Court of the United States of a petition for a writ of certiorari. Smith v. Virginia, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

3. A denial of a state court petition for writ of habeas corpus on March 14, 1980 following an evidentiary hearing on Smith's claim that there had been ineffective assistance of counsel.

4. The filing, on June 28, 1982, of a petition in the United States District Court for the Eastern District of Virginia for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. A magistrate issued a written report proposing dismissal of the petition. On December 4, 1984 the district court did so.

Now, on appeal, the case reaches us on the following issues:

1. Whether a Fifth Amendment violation occurred when a psychiatrist, consulted at the instance of Smith's counsel, was wrongly permitted to testify in the sentencing phase of the case about incriminating statements concerning an earlier attack Smith described during the psychiatric interview.

2. Whether the assistance of counsel representing Smith at the sentencing phase was ineffective.

3. Whether jury instructions at the sentencing phase unconstitutionally compromised Smith's right to an individualized determination that death was the appropriate punishment.

It is evident that guilt is not contested. Smith questions solely the correctness of the sentencing procedures.

At the outset we are confronted with a contention by the Commonwealth that the absence of an objection by counsel to the psychiatric testimony under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) foreclosed the making of the point. The case imposes a burden on the convict to show cause for and prejudice in the failure to raise the issue.

That question under Wainwright v. Sykes has plagued the Court in prior instances. Potentially it could do so here for there is reason to doubt whether counsel for Smith could muster sufficient reason to constitute trial counsel's failure to object inexcusable neglect. The testimony of a psychiatrist whose interview with Smith took place through the initial urging of defense counsel was under Virginia law proper, even though his testimony was severely damaging to the defendant. Gibson v. Commonwealth, 216 Va. 412, 219 S.E.2d 845 (1975). At the federal level, the law precluding such testimony on Fifth Amendment grounds, at the time of the trial in November 1977, was not certain. Only subsequently, in Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.1978), did the Fourth Circuit establish the impropriety on Fifth Amendment grounds of testimony concerning damaging remarks of the accused during a psychiatric examination. 1

One difficulty is presented by the case of Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir.1983). There it was held that a lawyer could not be found to have afforded ineffective assistance where in October 1973 he failed to object to imposition on the defendant of the burden of proof. That the imposition was, indeed, improper was finally established by the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The Supreme Court's decision came down two years after the trial had taken place. However, both the district court on September 29, 1972 and the decision of the First Circuit Court of Appeals on February 14, 1973 had announced the same rule of law, subsequently adopted by the Supreme Court, before trial took place in October 1973. 2

Rather than take such an approach here, however, especially inasmuch as the continued vitality of Honeycutt v. Mahoney has been rendered uncertain by the recent decision of Reed v. Ross, --- U.S. ----, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), we give weight to the consideration that we have before us a matter of life and death. The imminent execution of Smith serves as sufficient grounds to review the issue raised on the merits. 3 Since our determination on the merits is that Smith is not entitled to habeas corpus relief, we thereby, without displaying substantial disregard for Wainwright v. Sykes, at least, avoid the nagging concern that one possibly meritorious grounds for avoiding the termination of Smith's life went unconsidered. Cf. Carrier v. Hutto, 724 F.2d 396 (4th Cir.1983), holding that ignorance or oversight leading to the failure to raise a point on behalf of a criminal defendant may constitute cause sufficient to excuse failure to make a contemporaneous objection. 4

On the merits, we immediately come up against the consideration that the jury's verdict recommending a death sentence was supported by two separate and distinct grounds of aggravation: (a) dangerousness (i.e., violence) and (b) vileness. 5 The asserted errors of constitutional dimension relating to the admission of psychiatric testimony were in testimony directed to the question of "dangerousness." 6 The evidence presented to the jury supporting a showing of "vileness" was unchallenged. The testimony in the guilt phase of the case amply provided a basis for a decision that the crime was vile. 7 Having met the victim on a beach, Smith paused to help remove briars from her feet. The appearance of kindness immediately dissipated when Smith grasped the victim's arm, took her to a wooded area, produced a knife, and told her to undress. He then forced her to have intercourse and, following that, choked her, dragged her into the water, submerged her head, stabbed her, and left the dead victim lying where she fell. The immediate cause of death was drowning, although the testimony indicated that stab wounds and strangulation also could have been responsible.

This court recently decided in Briley v. Bass, 742 F.2d 155, 165 (4th Cir.1984), that any one aggravating circumstance deemed sufficient by the jury suffices:

[S]ince the jury returned a verdict finding the death sentence warranted under both the "vileness" and the "dangerousness" standard, it is of no importance whether the instruction on "vileness" was correct so long as the instruction on "dangerousness" was correct, provided, of course, the verdict of the jury was unanimous on the "dangerousness ground."

Similarly, the Supreme Court in Zant v. Stephens, 462 U.S. 862, 884, 103 S.Ct. 2733, 2746, 77 L.Ed.2d 235 (1983) stated...

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