Spencer v. Zant

• Decision Date: 30 September 1983
• Docket Number: No. 82-8408,82-8408
• Citation: 715 F.2d 1562
• Parties: James Lee SPENCER, Petitioner, v. Walter D. ZANT, Superintendent, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1562

715 F.2d 1562

James Lee SPENCER, Petitioner, v. Walter D. ZANT, Superintendent, Georgia Diagnostic &amp Classification Center, Respondent.

No. 82-8408.

United States Court of Appeals Eleventh Circuit.

Sept. 30, 1983.

DLOpinion on Granting of Rehearing En Banc Dec. 13, 1983.

Edward D. Tolley, Athens, Ga., Anthony G. Amsterdam, John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, New York City, for petitioner.

Virginia H. Jeffries, Atlanta, Ga., for respondent.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE ^*, District Judge.

JOHNSON, Circuit Judge:

James Lee Spencer was convicted of murder, aggravated assault, and escape in Georgia state court in 1975. He was sentenced to death for the murder charge and to two concurrent ten year terms for the assault and escape charges. After an unsuccessful effort to obtain a writ of habeas corpus in state court, Spencer brought this petition for a federal writ of habeas corpus under 28 U.S.C.A. § 2254. The district court denied the petition. We vacate the district court's judgment in part and remand for evidentiary hearings on two of Spencer's claims.

I. BACKGROUND

The events leading up to Spencer's 1975 conviction occurred while he was a prisoner in Georgia. On October 31, 1974, Chief Deputy Sheriff L.O. Beazley was transporting Spencer from Richmond County Jail to the Georgia State Prison in Reidsville. Beazley's father-in-law, Lett Williams, accompanied Beazley in the front seat of the transfer vehicle. Spencer sat in the back seat.

Somewhere between Augusta and Millen, Georgia, the radio dispatcher came on the air and announced, "Chief, the passenger you've got is supposed to have a gun." Immediately upon hearing the report, Spencer shot Beazley three times, and then a fourth time in the head when Beazley stopped the car and attempted to open the door. Before crawling out the door, Beazley managed to open the passenger door and push Williams out of the car. According to a witness who drove up a few minutes later, Williams was standing behind the car calling for help. He then ran around the car and put his head inside one of the windows. Spencer, who was still inside, shot Williams, kicked out the rear window, and attempted to flee. During the flight, he was apprehended by a state patrolman who had arrived on the scene. Beazley survived, although he was permanently blinded in one eye; Williams died of a gun shot wound to the head.

At Spencer's trial, a former Richmond County jail prisoner testified that he and Spencer had discussed escaping. He further testified that on October 31, the day of Spencer's escape attempt, he saw Spencer strap a pistol to his leg and cover it with a sock, and that, as Spencer left the jail, he said, "This here is the day." There was also trial testimony that Spencer had made a homemade handcuff key and concealed it in his mouth, and that he spit the key into an officer's hand when he was apprehended.

Spencer appealed his conviction and sentence to the Georgia Supreme Court, which affirmed with one justice dissenting. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976). Spencer filed a petition in Tattnall County Superior Court for a writ of habeas corpus. After an evidentiary hearing, the court denied his petition and the Georgia Supreme Court again affirmed. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). Spencer then brought this federal habeas petition in the United States District Court for the Southern District of Georgia, alleging that, inter alia: 1) the trial court's jury instruction at his hearing on his special plea of insanity violated his due process rights; 2) his jury array was unconstitutionally composed insofar as blacks and women were underrepresented; 3) certain jurors were improperly dismissed during voir dire in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); 4) the trial court's jury instruction violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1977), by relieving the state of the burden of proof on an element of the crime; and 5) the Georgia death penalty is arbitrary and discriminatory and therefore unconstitutional as applied. The petition also included a request for evidentiary hearings.

The district court consolidated Spencer's claims with similar claims presented in two other pending habeas cases, Mitchell v. Hopper, CV No. 478-132, and Ross v. Hopper, CV No. 478-162. The district court heard argument from the parties in these three cases as to the necessity of evidentiary hearings on certain of the consolidated claims. At the conclusion of this hearing, the court ruled that no evidentiary hearings were required for the challenge to the constitutionality of the death penalty as applied, but that it would receive some evidence on the Witherspoon issue. The court also ruled that evidentiary hearings would be held on the petitioners' grand and traverse jury challenges, with the hearings being limited mainly to the issue of whether petitioners could demonstrate "cause" and "prejudice" under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for their procedural default on these claims in state court. In addition to the hearings on these issues, the court later held hearings on the individual claims not covered at the hearings on the common claims--which in Spencer's case included his challenge to the jury instruction at his special plea hearing and his Sandstrom claim. After deciding that no evidentiary hearings were required on the individual claims, the district court issued an opinion holding against all claims presented by petitioners Spencer, Mitchell, and Ross. ¹ Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982).

II. THE SPECIAL PLEA OF INSANITY

In Georgia, a challenge to the competence of the defendant to stand trial is raised by a "special plea of insanity." On January 6, 1975, the first day of jury selection in Spencer's trial, Spencer filed a number of pro se motions, including a special plea of insanity. The plea alleged that he had lost his memory concerning the events of the crime and thus could not assist in his own defense. The trial judge immediately suspended jury selection and empanelled a jury for the purpose of hearing the special plea. The court asked defense counsel, one John H. Ruffin, to represent Spencer at the special plea hearing; Ruffin responded that he felt the motion was "inappropriate." Spencer v. State, 224 S.E.2d at 913. The court then ordered an independent psychiatric examination of Spencer. Dr. Hervey M. Cleckley, the person who conducted the examination, testified at the special plea hearing on January 7. Dr. Cleckley testified that, despite Spencer's claim during the examination to suffering a memory loss, "My impression was that he was malingering, that he was assuming the loss of memory, and I was not convinced that it was that gross loss of memory he claimed." Cleckley further testified that, in his opinion, Spencer understood the charges against him and was capable of consulting with his defense counsel. Mr. R.J. Adair of the Richmond County sheriff's office also testified at the hearing that, after talking with Spencer 12 to 15 times since October 31, 1974, Spencer seemed well oriented, his answers to questions were "very precise," and, in Adair's opinion, Spencer was "very much sane" the last time he had talked with him.

At the end of the hearing, the trial judge began a four page charge to the jury with the following opening paragraph:

Gentlemen of the jury, you are hearing the case of James Lee Spencer which is a special plea of insanity filed by him, in which he alleges that he is insane, and you will have this petition out with you when you go to your jury room. Now, this is, in effect, a civil action which you must decide, and the burden of proof is upon James Lee Spencer to prove this case by what is known as a preponderance of the evidence. That is, by evidence that a person with a reasonable and impartial mind would believe is stronger than the evidence which has been introduced by this witness. (emphasis added).

Spencer argues that his due process rights were violated insofar as the italicized phrase of this paragraph of the instruction directed a verdict against him by indicating to the jury that his testimony had not been adequate to prove his incompetence. The state disagrees that this phrase had the effect of directing a verdict against him, contending that "this witness" referred to either Dr. Cleckley or Mr. Adair. In support of his due process argument before the district court, Spencer relied on In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), for the proposition that the burden should be upon the state to prove every element of the offense beyond a reasonable doubt. The district court properly rejected this argument on the ground that under Georgia law a defendant's competence to stand trial does not implicate his state of mind at the time of the offense and thus is not an element of the crime. Banks v. State, 246 Ga. 178, 269 S.E.2d 450, 452 (1980). Thus, in this appeal, we evaluate Spencer's due process claim not in terms of whether the jury instruction impermissibly shifted the burden of proof against Spencer, but instead in terms of whether Spencer's due process right to a competency hearing was violated. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Acosta v. Turner, 666 F.2d 949, 954 (5th Cir. Unit B 1982).

The standard for whether a defendant is entitled to a hearing to determine his competence has been described as whether the doubt as to the defendant's competency is "bona fide," "substantial," "real,...