Vanderbilt v. Lynaugh

• Decision Date: 01 March 1988
• Docket Number: Civ. A. No. B-82-912-CA.
• Citation: 683 F. Supp. 1118
• Parties: Jim VANDERBILT, Petitioner, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Texas

683 F. Supp. 1118

Jim VANDERBILT, Petitioner, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent.

Civ. A. No. B-82-912-CA.

United States District Court, E.D. Texas, Beaumont Division.

March 1, 1988.

COPYRIGHT MATERIAL OMITTED

B. Warren Goodson, Jr., and Stephen S. Walley, Beaumont, Tex., for petitioner.

Jim Vanderbilt, pro se.

Robert Walt, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM OPINION

JUSTICE, Chief Judge.

In 1979 petitioner was convicted, and sentenced to die, for the April 1, 1975, capital murder of Katina Moyer. The circumstances of the crime are set forth in Vanderbilt v. State, 629 S.W.2d 709 (Tex. Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982), and will not be repeated here. Petitioner was indicted three times for the Moyer killing: the first indictment resulted in a 1976 conviction and death sentence, overturned on appeal; the second was dismissed by motion of the state; the third led to the conviction and sentence petitioner now challenges. Reversal of the 1976 conviction was based on the exclusion, at trial, of evidence through which Vanderbilt had sought to discredit the reliability of a confession. Vanderbilt v. State, 563 S.W.2d 590 (Tex.Cr.App.1978). Dismissal of the second indictment followed a pretrial ruling suppressing oral and written confessions made by petitioner as unconstitutionally obtained. Having exhausted appellate and state habeas remedies following his second trial (and third indictment), petitioner seeks a federal writ of habeas corpus. He alleges constitutional defects in both the guilt-innocence phase and the penalty phase of the 1979 proceedings.

In attacking his conviction, petitioner argues that the 1979 trial violated the Double Jeopardy Clause; that forensic evidence (a bullet and hair samples) relied on by the state were tainted fruits of his suppressed confessions; that hearsay evidence of a forensic expert's statements, which tended to tie petitioner to the victim's death, violated his right to confront his accusers and his right to due process; and that the state failed to prove the victim to have been kidnapped before her death, a statutory element of capital murder under the facts of the case. None of these claims are meritorious.

Petitioner further contends that his Fifth and Sixth Amendment rights were violated during the penalty phase of his trial when the state, in order to prove Vanderbilt's future dangerousness, introduced psychiatric testimony derived from a 1975 competency examination undertaken without any warning, to petitioner or his lawyer, of its possible use at the penalty phase of his trial. After a review of the entire state court record, and an evidentiary hearing, the court concludes that petitioner is entitled to a writ setting aside his death sentence. The underlying conviction shall remain undisturbed.

Fifth Amendment Claim

As required by Texas law, the same jury that found petitioner guilty of murder was asked to determine, following a separate sentencing hearing, whether the death penalty should be imposed. To obtain a death sentence in Texas, the state must prove beyond a reasonable doubt that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Tex.Code Crim.Prac.Ann., Art. 37.071(b)(2) (Vernon 1981).¹

Six witnesses appeared for the state at the sentencing hearing. The first five testified briefly to petitioner's reputation in the community. The sixth witness, Dr. Kenneth McTague, offered his professional opinion that petitioner would present a continuing threat to society if allowed to live. Dr. McTague — whose testimony was approximately four times the combined length of the other five state's witnesses' — had been the supervising psychologist at a mental health facility where petitioner was examined in 1975, before his first trial.

In 1975, petitioner had moved for an examination to determine his competence to stand trial and his sanity at the time of the offense. The original trial court granted the motion, and an examination was conducted over a two-day period. Although McTague's signature appears on the psychological report that resulted from this examination, the interviews were conducted by Dr. William Kracke, a psychiatrist who summarized the examination in a letter to the trial court, and Mr. Bradley Klein, a senior counselor at the facility. Kracke and Klein, along with petitioner and his 1975 attorney, Jim Brown, testified at an evidentiary hearing in this court.

At the evidentiary hearing, Kracke stated that he advised petitioner, before commencing the examination, that petitioner's participation was voluntary and that anything he said might be used against him in court. Klein testified that he told petitioner that he need not answer any questions, and that the report would be given to the court and to the state. Both Kracke and Klein understood the examination to be limited to issues of sanity and competence. Neither Kracke nor Klein warned petitioner that the examination might be used as evidence at the sentencing hearing; indeed, both testified that they were unaware that future dangerousness was an issue in capital sentencing cases.

Attorney Brown testified that he had not been informed, in 1975, that the examination would bear on the question of future dangerousness. He had been opposed to the idea of petitioner undergoing a competency and sanity examination, for three reasons: (1) he did not believe there was any chance of presenting an effective insanity defense; (2) he thought petitioner competent to stand trial; and (3) he feared petitioner might incriminate himself. Brown explained that his concern about self-incrimination was based on general defense principles — that volunteered statements were far more likely to hurt than to help petitioner's case. Brown recalled worrying about self-incrimination regarding guilt and innocence, but not the imposition of the death penalty or proof of future dangerousness. Petitioner testified that he received no warnings of any kind from Kracke or Klein, and no explanation from any source of a potential connection between the examination and a death sentence.

In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court found a Fifth Amendment violation in the state's unwarned use, at the sentencing phase of a capital murder trial, of a pre-trial competency examination where the defendant

was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.

451 U.S. 467, 101 S.Ct. 1875.

Because respondent did not voluntarily consent to the pretrial examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness some other way.

Id. at 468-69, 101 S.Ct. at 1875-76.

The perception behind this holding is that there can be no knowing and intelligent waiver of the right not to incriminate oneself, when "waiver" occurs without notice that one's statements may directly lead to a sentence of death. Thus, a defendants's request for a pre-trial examination on competence and sanity does not, by itself, waive his Fifth Amendment privilege against incriminating himself at the penalty phase of his trial. E.g., Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). And warnings which fail to specify that statements made at a pre-trial examination may be used against the defendant at the sentencing hearing "constitute a violation of the defendant's Fifth Amendment rights." Ex parte Demouchette, 633 S.W. 2d 879, 881 (Tex.Cr.App.1982).

Respondent argues that the warnings assertedly given to petitioner by Kracke and Klein distinguish this case from Estelle v. Smith and its progeny — that Vanderbilt received the substantial equivalent of Miranda warnings, and that his participation after putatively being "Mirandized" reflects a valid waiver of his Fifth Amendment rights. Petitioner denies receiving any warnings from the examiners. But even if Kracke and Klein generally warned petitioner that his statements could be used against him, and that he was free not to participate, petitioner did not receive the information he would have needed to receive in order to make a valid waiver of his Fifth Amendment right, elucidated by Estelle v. Smith, not to testify against himself at the penalty phase of a capital trial.

Chief Justice Burger characterized the Fifth Amendment issue in Estelle v. Smith as follows: "whether the admission of Dr. Grigson's testimony at the penalty phase violated respondent's Fifth Amendment privilege against compelled self-incrimination because respondent was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing hearing." 451 U.S. at 461, 101 S.Ct. at 1872 (emphasis added). "Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements," the Court concluded, "the State could not rely on what he said to Dr. Grigson to establish his future dangerousness." Id. at 468, 101 S.Ct. at 1876 (emphasis added).

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