Smith v. Stewart

• Decision Date: 28 January 1999
• Docket Number: No. 97-99010,97-99010
• Citation: 189 F.3d 1004
• Parties: (9th Cir. 1999) JOE CLARENCE SMITH, JR., Petitioner-Appellant, v. TERRY L. STEWART, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1004

189 F.3d 1004 (9th Cir. 1999)

JOE CLARENCE SMITH, JR., Petitioner-Appellant, v. TERRY L. STEWART, Respondent-Appellee.

No. 97-99010

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 28, 1999--Pasadena, California

Decided August 31, 1999

Kelley J. Henry and Denise I. Young, Assistant Federal Public Defender, Phoenix, Arizona, for the petitioner-appellant.

Gerald R. Grant, Maricopa County Attorney, Phoenix, Arizona, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona Paul G Rosenblatt, District Judge, Presiding. D.C. No. CV-91-01577-PGR.

Before: Warren J. Ferguson, Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Ferguson; Partial Concurrence and Partial Dissent by Judge Fernandez

FERGUSON, Circuit Judge:

Arizona state prisoner Joe Clarence Smith ("Smith") appeals the denial of his habeas corpus petition seeking review of his conviction and death sentence for the 1976 murders of Neva Lee and Sandy Spencer. Smith raised 34 claims, all of which the district court found were procedurally defaulted or lacked merit. For the bulk of these claims, we affirm the denial of the petition for the reasons set forth in the district court's order and memorandum.¹ We focus instead on one claim that Smith raised in previous state post-conviction petitions: ineffective assistance of counsel at re-sentencing. Because we conclude that Smith's counsel effectively presented no mitigating evidence on his behalf, our confidence in the outcome of his sentencing has been undermined to such an extent that we must reverse the district court.

I. BACKGROUND

On January 1, 1976, officials of the Maricopa County Sheriff's Department found the nude body of Sandy Spencer in the desert outside Phoenix. One month later in a different desert location, police discovered the nude body of Neva Lee. Both teenage hitchhikers had been suffocated by having dirt forced into their mouths, which were taped shut. The assailant stabbed both women multiple times, punctured them with needles, and bound their wrists with rope.

Smith, who was on probation from a rape conviction, became the prime suspect. Police put him under surveillance. When that failed to produce probable cause for an arrest, police had a female officer pose as a hitchhiker to lure Smith into committing false imprisonment or battery. He eventually picked up the officer, took her to his father's machine shop, and grabbed her by both arms. After a prearranged signal, police entered and arrested him for false imprisonment.

During Smith's imprisonment, police questioned him about the Lee and Spencer murders. At first, he denied his involvement. But months later, at his own initiation, Smith gave investigators a bizarre account of the Lee slaying. He told police that he was present at the crime because a friend, John Jameson, forced him at gunpoint to drive the victim to the desert. Once there, Jameson ordered Lee to have sexual inter- course with Smith in order to frame Smith for her rape. Smith said Jameson then decided to kill Lee. His account conflicted with some physical evidence found at the scene. Smith later contended that he told police no such story.

Smith went on trial for the Lee murder first. Throughout the trial, he maintained his innocence, contending that other people committed the crime and that investigators conspired to frame him. Jameson testified at the trial. He denied being present at the murder, but said that a man known as "Squirrel" bragged about killing two women and showed James on pictures of the dead women. The jury returned a general verdict finding Smith guilty of murder.

Smith then went on trial for the Spencer slaying. The following day, he pleaded guilty to the crime shortly after Di Anne Jameson--Smith's girlfriend, John Jameson's ex-wife, and a key prosecution witness--told the court that she had been improperly contacted by a defense investigator and by Smith's mother. During the plea colloquy, the prosecutor expressed doubts about Smith's emotional stability to enter a voluntary plea. Nonetheless, the trial court accepted the plea. Three weeks later, Smith unsuccessfully sought to withdraw the plea, explaining that he had only pleaded guilty out of concern that his parents and Ms. Jameson would be arrested.

At Smith's sentencing for both convictions, his trial counsel, Stephen Rempe, offered the deposition testimony of a psychiatrist, Dr. Jacob Hoogerbeets, and the live testimony of a psychologist, Dr. Faye Goldberg. At that time, Arizona's death penalty statute, formerly A.R.S. S 13-454, restricted the presentation of mitigating evidence to a list of statutory mitigating factors. Rempe offered Hoogerbeets' and Goldberg's testimony solely to establish one statutory mitigating factor: significant impairment of Smith's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.

Dr. Hoogerbeets originally had been appointed by the court to evaluate Smith's competency to stand trial in March 1977. At that time, Hoogerbeets told the court that Smith did not suffer from any mental disability. Nonetheless, by July, with no additional interviews of Smith, Hoogerbeets testified in his deposition that Smith was a borderline psychotic who may have had a "compulsion" to commit the crimes. During the August sentencing, Dr. Goldberg also testified that Smith's emotional tension built up to such an extent that at the time of crimes he had an overwhelming "compulsion" to kill. The state rebutted this compulsion theory with the testimony of psychiatrist Dr. Michael Cleary, who also had interviewed Smith to determine his competency to stand trial. Dr. Cleary, after an hour interview, determined that Smith was not impaired in his ability to conform his conduct to the law and suffered from no significant mental defect. The court found no mitigating circumstances and three aggravating circum- stances warranting the death penalty.

On appeal in 1979, the Arizona Supreme Court remanded Smith's case for resentencing in light of changes to the state's death penalty statute². Rempe now could present any mitigating evidence on behalf of Smith, including additional evidence of mental illness not rising to the level of an impairment of Smith's capacity to conform his conduct to the law. Instead, at Smith's re-sentencing, Rempe simply resubmitted Dr. Hoogerbeets' and Dr. Goldberg's testimony under the same statutory mitigating factor, without recalling them to testify or presenting other evidence of mental or emotional disturbance. In fact, Rempe had never tried a death penalty case before and he had no idea what mitigating evidence he could present. He even asked the court to help him out, a request that was ignored.

At re-sentencing, the judge found that Dr. Hoogerbeets' and Dr. Goldberg's testimony alone did not support the statutory mitigating factor of significant impairment, and so the court said it would not consider Dr. Cleary's testimony. The court also said it was not limiting its consideration of any mitigating circumstance in concluding that no mitigating factors existed which would call for a sentence other than death. In addition to resubmitting this expert testimony, Rempe reargued the constitutionality of Arizona's revised death penalty statute, a standard "form" motion of the public defenders office. He also repeated the recommendation of a supplemental pre-sentence report, which suggested that the court appoint another examining psychiatrist. The court denied the request. Repeating his unsuccessful argument from Smith's first sentencing, Rempe briefly argued that life in prison would be a more "heinous" punishment than death. The court again found aggravating circumstances and no mitigating circumstances in sentencing Smith to death.

On direct appeal, the Arizona Supreme Court affirmed Smith's conviction and death sentence. State v. Smith, 638 P.2d 696 (Ariz. 1981). He then brought a series of post- conviction relief petitions in the state courts. After the third of those petitions was decided adversely to him, Smith proceeded with the current federal habeas action in the district court. The district court denied the writ, finding all but seven of Smith's 34 claims procedurally barred either because the trial court determined they were defaulted, they were not pre- served in a motion for rehearing, or they were never presented to any state court. The district court, however, reached the merits of Smith's claim of ineffective assistance of counsel at re-sentencing. Although Smith raises a number of claims on appeal, we need to consider only one.

II. STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment denying a writ of habeas corpus. Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998). Since Smith filed this habeas petition before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the provisions of the Act do not apply. Id. (citing Jeffries v. Wood, 114 F.3d 1484, 1495-96 (9th Cir. 1997 (en banc)).

III. DISCUSSION

To establish ineffective assistance of counsel, Smith must demonstrate that his counsel's performance at his re-sentencing was deficient, falling "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). The deficient performance also must prejudice his case. There must be a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different but for counsel's errors. Id. at 694. A. Deficient Performance

We have no doubt that Rempe's performance was deficient. He failed to investigate, develop, and present evidence of Smith's mental condition which did not rise to the level of the statutory mitigating factor of significant impairment. He failed to introduce...