Thomas v. Kemp
| Decision Date | 28 July 1986 |
| Docket Number | No. 85-8655,85-8655 |
| Citation | 796 F.2d 1322 |
| Parties | Donald Wayne THOMAS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.
Stephen B. Bright, George H. Kendall, ACLU of Georgia, Atlanta, Ga., for petitioner-appellee, cross-appellant.
Appeals from the United States District Court for the Northern District of Georgia.
Before RONEY, KRAVITCH and HATCHETT, Circuit Judges.
Donald Wayne Thomas was convicted by a jury in the Superior Court of Fulton County, Georgia, and sentenced to death for the murder of nine-year-old Dewey Baugus. 1 When the instant habeas corpus petition was filed in the federal court, the execution scheduled for May 15, 1984 was stayed. After an evidentiary hearing, the district court granted relief on two grounds: (1) ineffective assistance of counsel at the sentencing for failure to present mitigating evidence, and (2) a constitutionally insufficient jury charge as to mitigating circumstances at sentencing.
On the State's appeal, we affirm the grant of the writ on the ineffective assistance at sentencing. On Thomas' cross-appeal, we affirm the denial of relief on the other grounds considered by the district court: (a) failure of the state trial court to conduct an evidentiary hearing on competency to stand trial, (b) denial by the district court of leave to amend the habeas corpus petition to assert a claim of denial of right to counsel at the preliminary hearing, and (c) the exclusion of venirepersons opposed to the death penalty.
Contrary to the State's argument, the state court finding of effective assistance of counsel, as a mixed question of law and fact, is not entitled to a 28 U.S.C.A. Sec. 2254(d) presumption of correctness. Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985). Since the district court found the state record insufficient to permit a determination of whether counsel's decision not to present mitigating evidence was strategic or negligent, it was proper to hold an evidentiary hearing. Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).
Thomas' lawyer made little effort to investigate possible sources of mitigation evidence. Although Thomas' mother, who was to be the main witness at the penalty phase, was interviewed, she was not present, for reasons not apparent from the record. No attempt was made to obtain possible mitigation testimony from other family members or individuals who knew Thomas from school, work, or the neighborhood. The lawyer testified that he made little effort to produce mitigating evidence because Thomas had stated that he did not want to take the stand and did not "want anyone to cry for him."
Although a capital defendant's stated desire not to use character witnesses and refusal to testify limits the scope of required investigation, Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir.1985), the statements of defendant here do not support such a waiver. The record supports the district court's decision that counsel's failure to investigate and present mitigating evidence fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
The record likewise supports the district court's decision that the omission was prejudicial. Several witnesses would have given testimony in mitigation. Two faculty members of the Roosevelt High School, which Thomas attended, testified that had they been called to the sentencing hearing, they would have told the jury about Thomas' difficult home environment, about the mental and physical abuse which he encountered there, about his mother's drinking problem, and that Thomas, despite being a slow learner, had worked hard to improve his grades. Two former employers would have testified that Thomas was an excellent worker when given simple work assignments, was always punctual, and had suffered adverse consequences from his mother's drinking problem. Various family members would have testified that Thomas was a loving son who cared deeply for his mother. A psychiatrist could have presented testimony showing Thomas as a pathetically sick youngster who had struggled to succeed in life, both in school and on the job, despite a chaotic home environment and a major mental illness.
None of this evidence was presented to the jury at the sentencing phase as mitigating evidence. It cannot be said that there is no reasonable probability that the results of the sentencing phase of the trial would have been different if mitigating evidence had been presented to the jury. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. The key aspect of the penalty trial is that the sentence be individualized, focusing on the particularized characteristics of the individual. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Here the jurors were given no information to aid them in making such an individualized determination.
The district court granted habeas corpus relief on the ground that a charge given at the sentencing phase of the trial failed to explain or define what constitutes a mitigating circumstance, and what function a mitigating circumstance serves in sentencing deliberations, relying on Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983).
Although the recent en banc decision in Peek v. Kemp, 784 F.2d 1479 (11th Cir.1986), unavailable to the district court at the time of its decision, casts considerable doubt on the district court's ruling, it is not necessary to decide that issue on this appeal. At the new sentencing hearing to which Thomas is entitled because of ineffectiveness of counsel, the sentencing court will be able to bring its procedures in line with current law.
As to whether Thomas was mentally competent to stand trial, the district court heard testimony, received documentary evidence, and found that Thomas had failed to present the state trial court with sufficient evidence to create a legitimate doubt as to his competency. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). This finding is reviewed under the clearly erroneous standard. Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). As previously noted by this Court:
The Supreme Court has not attempted to promulgate a standard describing the quantum of doubt that must exist before a trial judge is required to conduct a Pate hearing.... [N]o single phrase has yet evolved that captures all nuances of the contours of Pate, and so a close review of the facts is required that we may make our independent constitutional assessment of whether sufficient doubt of competency existed within the time frame of the trial and immediately related proceedings.
Acosta v. Turner, 666 F.2d 949, 954 (5th Cir.Unit B 1982). Because of the difficulty of defining sufficient doubt under Pate, our review of the facts is an active one intended to assist in evolving a better grasp of legitimate doubt of competency to stand trial.
The district court examined three factors to determine whether Thomas was competent: evidence of Thomas' prior irrational behavior, Thomas' demeanor at trial, and medical opinion on Thomas' competency. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). These factors must be addressed in terms of what was known to the trial court at the time.
As to prior irrational behavior, the district court noted that while there was some trial testimony by Linda Cook, a chief prosecution witness, that Thomas had locked her in a closet for a week and had jumped on the body of the decedent when Thomas showed the body to her, this evidence was insufficient to trigger a Pate hearing. These alleged incidents occurred six months prior to trial, and the facts depended upon Cook's credibility. There was no other testimony that Thomas had displayed irrational behavior on other past occasions.
With regard to Thomas' behavior at trial, the district court found:
After reading the initial briefs filed in this action the court was under the impression that the petitioner sat throughout his trial with his fist raised over his head...
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