Stewart v. Gramley

• Decision Date: 27 February 1996
• Docket Number: No. 95-1850,95-1850
• Citation: 74 F.3d 132
• Parties: Walter STEWART, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 132

74 F.3d 132

Walter STEWART, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center, et al., Respondents-Appellees.

No. 95-1850.

United States Court of Appeals Seventh Circuit.

Argued Nov. 21, 1995.

Decided Jan. 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 27, 1996.

David C. Thomas (argued), Chicago-Kent College Of Law, Chicago, IL, Marshall Hartman, Capital Resource Center, Chicago, IL, for Walter Stewart.

Steven J. Zick, Office of Attorney General, Criminal Appeals Division, Chicago, IL, Kevin Sweeney, Renee G. Goldfarb (argued), Office of State's Attorney of Cook County, Criminal Appeals Division, Chicago, IL, for Richard B. Gramley and James E. Ryan.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

POSNER, Chief Judge.

Walter Stewart entered a jewelry store in an Illinois town, drew a revolver, and announced a stickup. After completing the stickup, Stewart ordered the three people (the woman who owned the store, her boyfriend, and her brother) who were in the front of the store (a fourth had slipped away to a back room) to move to the side. The men didn't move; the woman did move, but she took a step backward rather than to the side and Stewart shot her. The two men jumped Stewart, who fired four times, hitting both men. They fell to the floor, and Stewart shot one of them again. He then raced to the back room, pointed his gun at the woman there, and pulled the trigger. Nothing happened, as he had run out of bullets. He fled, and was arrested outside the store. Both the men he had shot were dead. The woman who was shot survived and identified Stewart at a lineup. When she cried, "You killed my brother," he replied, "So what. It should have been your mother."

The robbery and murders occurred in 1980, and later that year Stewart pleaded guilty and, after a hearing, was sentenced to death. After exhausting his state appellate and postconviction remedies, Stewart turned to federal court, where at first he was successful. The district judge held that Stewart's guilty plea had been involuntary. We reversed. Stewart v. Peters, 958 F.2d 1379 (7th Cir.1992). The district judge had not ruled on all of Stewart's claims, so the case went back to him. On remand, the judge rejected the remaining claims and denied relief, precipitating this second appeal.

Some of the grounds presented by the appeal are either foreclosed by previous decisions of this court or manifestly without merit. Only three grounds require discussion. The first is that the trial judge should have complied with the request of Stewart's lawyers that a psychiatrist be appointed to examine Stewart and determine whether he might have a psychiatric condition that would mitigate his guilt and by doing so perhaps persuade the judge not to impose the death sentence. The decision that established the right to such an appointment, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), came after Stewart's conviction and sentence became final, and thus cannot be used as a ground for relief in a federal habeas corpus proceeding. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Stewart argues that Ake did not create the right to a court-ordered psychiatric examination but instead merely applied existing law that recognized the right's existence. The argument is based on generalities in earlier opinions to the effect that a death sentence to be valid must be based on reliable evidence. That is a broad principle and out of it the Court evolved the specific right involved in Ake. All procedural rights of criminal defendants evolve out of principles as old as the Constitution and often much older. Teague v. Lane would have no domain of application if limited to cases in which the Court had created a right that had no antecedents in the traditions of Anglo-American criminal procedure.

Even if Stewart were entitled to rely on Ake, which he is not, the failure to appoint a psychiatrist to examine Stewart could not have been a prejudicial error. We know this because beginning a few months after his conviction and continuing for at least eight years (perhaps longer, but the part of the appellate record that is relevant to this issue stops in 1988), Stewart underwent numerous psychiatric examinations. Some were routine, others in response to complaints he made about nervousness or sleeplessness. Although there are scattered conjectures about the possibility that Stewart might have a "paranoid personality," "borderline personality disorder," or "anti-social personality disorder," there is no reliable indication of any psychiatric disorder graver than "situational anxiety, mild." Obviously a person under sentence of death--unless he is insane--is going to exhibit some "situational anxiety." We can find no persuasive evidence of any psychiatric condition that might have been present before Stewart was sentenced to death and no reason to believe that his chances of escaping the death penalty would have been materially enhanced had he been examined by a court-appointed psychiatrist in preparation for the sentencing hearing.

One of the aggravating factors on which the judge relied in sentencing Stewart to death was Stewart's record of convictions before he held up the jewelry store. That record consisted of nine separate convictions for offenses ranging from theft to armed robbery. Two of the "convictions," one for robbery and one for theft, turn out not to have been formal convictions but instead orders of supervision. Under Illinois law, a judge who finds a defendant guilty of a crime (whether pursuant to a plea of guilty or after a contest) can, in lieu of entering a formal judgment, place the defendant on supervision for a period and if he completes the period without incident then he is discharged and there is no conviction on his record. 730 ILCS 5/5-6-3.1(f). For purposes of determining a defendant's criminal history in a death-penalty hearing, however, the distinction between conviction and supervision is irrelevant. Just like a judgment of conviction, an order of supervision requires a finding of guilt. The only difference is in the punishment, when "punishment" is realistically defined to include the effect on one's employment and other prospects of having a formal record of having been convicted of a crime. An order of supervision is a more lenient penalty even than probation. The statutory provision that makes a defendant's criminal history a basis for finding circumstances of aggravation that might warrant a death sentence does not limit the history that may be considered to formal convictions any more than it does to convictions that result in a sentence lighter, perhaps much lighter, than imprisonment. The provision refers only to "history of prior criminal activity." 720 ILCS 5/9-1(c)(1). People v. Johnson, 128 Ill.2d 253, 131 Ill.Dec. 562, 576-77, 538 N.E.2d 1118, 1132-33 (1989), refused to carve an exception for sentences of supervision. See also People v. Tinkham, 266 Ill.App.3d 391, 203 Ill.Dec. 358, 363, 639 N.E.2d 917, 922 (1994).

The main issue on appeal is the competence of Stewart's original lawyers. He claims that they made an insufficient investigation of his personal history before the sentencing hearing and as a result were unable to present mitigating factors that might have dissuaded the judge from sentencing Stewart to death. The lawyers talked to Stewart, of course, but not to members of his family or to other potential witnesses. Members of his family and other witnesses did testify on his behalf at the sentencing hearing, but they had not been interviewed in advance. Although Stewart had told his probation officer that he had used drugs, and although his criminal history included a drug offense, the lawyers did not investigate the history of his drug use.

The question how extensive an investigation into the existence of potential mitigating factors a capital defendant's lawyers must conduct in order to discharge their duty of rendering professionally competent assistance is a difficult one. Mitigation is a vaguer concept than guilt. When the issue is guilt, defense counsel's duty of investigation is fairly well defined; counsel must (unless there is a strategic reason for not doing so) follow up leads provided by the client or others and in particular must interview potential witnesses likely to provide material evidence favorable to the defense. Williams v. Washington, 59 F.3d 673, 680-81 (7th Cir.1995); United States v. Shetterly, 971 F.2d 67, 74 (7th Cir.1992); Sullivan v. Fairman, 819 F.2d 1382, 1391-92 (7th Cir.1987). What exactly counsel must do to determine the presence of factors mitigating the gravity of the defendant's conduct is less clear. The standard is clear enough--is in fact the same standard as that of effective assistance in the guilt phase of the proceeding. Strickland v. Washington, 466 U.S. 668, 690-91, 695, 104 S.Ct. 2052, 2066, 2068, 80 L.Ed.2d 674 (1984); Funchess v. Wainwright, 772 F.2d 683, 688 (11th Cir.1985). The lawyer must make a "significant effort, based on reasonable investigation and logical argument," to mitigate his client's punishment. Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.1989). But what does this mean in practice? Presumably the lawyer is not required to investigate the defendant's past with the thoroughness of a biographer. The resources of defense lawyers are limited and they have only a short time to prepare for the sentencing hearing. Sometimes it will be apparent from the evidence concerning the circumstances of the crime, from conversation with the defendant, or from other sources of information not requiring fresh investigation, that the defendant has some mental or other condition that will repay further investigation, and then the failure to investigate will be ineffective assistance. Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.1991); Antwine v. Delo, 54 F.3d...