White v. Estelle

• Decision Date: 30 December 1982
• Docket Number: Civ. A. No. H-81-1661.
• Parties: Larry Wayne WHITE, Petitioner, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

554 F. Supp. 851

Larry Wayne WHITE, Petitioner, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent.

Civ. A. No. H-81-1661.

United States District Court, S.D. Texas, Houston Division.

December 30, 1982.

E. Larry Cantu, Houston, Tex., for petitioner.

Leslie Benitez, Austin, Tex., for respondent.

MEMORANDUM AND ORDER

SINGLETON, Chief Judge.

I. HISTORY OF THE CASE

On June 20, 1979, Larry Wayne White was convicted of capital murder in the 185th Judicial District Court of Harris County, Texas for the March 1, 1977 murder of Elizabeth St. John, a seventy-two-year-old woman.¹ The evidence showed that during the course of a robbery, the victim had been strangled, stabbed in the back with a screw driver, and sexually violated, either before or after her death. After his arrest in Myrtle Beach, South Carolina, and while in custody, petitioner confessed to the offense. The court appointed two attorneys to defend. Following a court order, petitioner underwent a pretrial psychiatric examination to determine his competency to stand trial.² White was not advised of his right to remain silent during this examination, nor forewarned that anything he said could be used against him at trial.

At the sentencing phase of the trial, the state produced evidence to show that White recently had been convicted of the murder of an eighty-year-old woman, had previously raped and beaten a ninety-two-year-old woman, and had a record for forgery, resisting arrest, and assault and battery. The state called as witnesses a psychiatrist, Dr. John David Nottingham, Jr. and a psychologist, Dr. Jerome Brown. In answer to hypothetical questions, these doctors testified that a person with Larry Wayne White's criminal past would be likely to commit future acts of violence. Petitioner testified on his own behalf; he attributed his violent behavior to his experiences as a Marine in Vietnam and to a problem with alcohol. On the basis of the evidence presented, the jury affirmatively answered the three special issue questions of article 37.071(b) of the Texas Code of Criminal Procedure,³ and Larry Wayne White was sentenced to death. The execution date was set for July 1, 1981.

Petitioner exhausted his state remedies as required by 28 U.S.C. § 2254⁴ and on a writ of habeas corpus to this court, raised those claims of constitutional violations which had been unsuccessfully pursued in the state courts. On June 29, 1981, this court granted petitioner's motion for a stay of execution pending resolution of the claims raised in the writ. Thereafter, a hearing was held on the issue of the constitutionality of the admittance of the psychiatric testimony used at the punishment phase of Larry Wayne White's trial.

II. ISSUES RAISED IN THE WRIT OF HABEAS CORPUS

Petitioner raises seven claims for relief based on alleged violations of petitioner's constitutional rights. These are:

1. The testimony of a court-appointed psychiatrist and psychologist was admitted at the punishment phase of petitioner's trial in violation of petitioner's rights under the fifth, sixth, and fourteenth amendments.⁵

2. Petitioner's confession, obtained by police in violation of those rights secured by the fifth, sixth, and fourteenth amendments, was admitted at petitioner's trial.

3. The ineffectiveness of court-appointed appellate counsel denied petitioner a meaningful appeal and, thus, abridged petitioner's rights under the fifth, sixth, eighth, and fourteenth amendments.

4. Prospective jurors who expressed reservations regarding the assessment of the death penalty were systematically excluded from the jury. Thus, petitioner's sixth, eighth, and fourteenth amendment rights were denied.

5. Texas capital sentencing procedures, as applied to petitioner's case, violate the sixth, eighth, and fourteenth amendments.

6. Petitioner's fifth and fourteenth amendment privilege against compulsory self-incrimination was abridged when he was extensively cross-examined regarding the instant offense at the punishment phase of his trial.

7. Petitioner was denied effective assistance of counsel at trial in violation of the sixth and fourteenth amendments.

After consideration of the evidence and arguments advanced by the state and petitioner, this court has determined that the admission of the psychiatric testimony of Drs. Nottingham and Brown at the sentencing phase of Larry Wayne White's trial violated petitioner's constitutional rights to due process. Consequently, it is incumbent upon this court to grant the writ for habeas corpus relief.⁶ The Supreme Court has held, that the death penalty may only be imposed after a fair presentation of all the available evidence. Smith v. Estelle, 445 F.Supp. 647, 654 (N.D.Tex.1977); see Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Gregg v. Georgia, 428 U.S. 153, 190-195, 96 S.Ct. 2909, 2933-2935, 49 L.Ed.2d 859 (1976); see generally Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). A proceeding during which the defendant's due process rights are denied is a priori unfair. Gardner v. Florida, 430 U.S. at 358, 97 S.Ct. at 1204 (fairness of the sentencing procedure is measured by the due process clause.) Hence, petitioner's death sentence must be vacated.⁷

III. THE PSYCHIATRIC TESTIMONY

Dr. Nottingham, Jr., a psychiatrist employed by the Harris County Psychiatric Hospital in the Forensic Psychiatry Unit, and Dr. Brown, Chief Psychologist at the Forensic Psychiatry Units in Harris and Jefferson Counties, were called by the state to testify at the penalty phase of petitioner's trial. Pursuant to court order, both doctors had previously interviewed White to determine his competency to stand trial. It is again important to point out that White was not advised of his right to remain silent either before or after the psychiatric examination.⁸ The fact that the doctors had had prior contact with petitioner was made clear to the jury. Each doctor was asked his opinion regarding petitioner's propensity to commit further acts of violence. The questions were structured as hypotheticals, but incorporated White's specific criminal history, with which the jury was familiar. Dr. Nottingham was asked the following question:

Assume with me that a defendant named Larry Wayne White was on trial for a capital murder and had been found guilty of that capital murder and it was shown in the evidence—and you're assuming with me that the evidence is correct— that he was convicted in 1972 of assault and battery; convicted in '73 of assault and battery; convicted again in '73 of resisting arrest; convicted of committing a first-degree murder in the State of Florida which occurred February 22nd, 1977; and then convicted in the case on trial of committing another capital murder in the State of Texas. What would be your professional opinion concerning the question which you are familiar with on probability?⁹

Later Dr. Brown was asked:

Assume with me, if you will, a set of facts wherein we would have a person on trial for capital murder and the evidence were to show in our hypothetical that that person had been convicted in December of '72 of assault and battery; in January of '73 of assault and battery; and February of '73 of resisting arrest; and then convicted of committing a capital murder of an 80-year old woman on February 22nd, 1977; and another capital murder of a 71-year old woman on March 2, 1977. Assuming that set of facts, what would be your professional opinion as to this second question, dealing with probability, in a capital murder case?¹⁰

Immediately after testifying that on the basis of the pretrial examination, he had found Larry Wayne White sane and competent to stand trial, Dr. Nottingham was called upon to describe a sociopathic personality to the jury and to testify as to the poor prognosis for treatment for those diagnosed with that disorder. Dr. Brown gave similar testimony. In addition, in response to direct questions Dr. Brown testified that petitioner was "hedonistic."

IV. DUE PROCESS AND THE PSYCHIATRIC TESTIMONY

A. The Fifth Amendment

1. The Hypothetical Questions

Petitioner contends that, based on the recent ruling in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the use of the psychiatric testimony violated his fifth and sixth amendment rights. Respondent argues that the use of hypothetical questions by the State, in exploring the issue of White's future dangerousness, distinguishes the instant case from Smith and removes it from the Smith ambit. As is obvious from the arguments of the parties, a decision as to whether petitioner was deprived of his constitutional rights hinges on a determination as to whether Smith is controlling precedent.

Smith involved facts similar to those of the case sub judice. The State of Texas sought the death penalty against Smith, who was indicted for capital murder. Following a court order, Smith underwent a pretrial psychiatric examination to ascertain his competency to stand trial. At the sentencing portion of defendant's trial, the psychiatrist, who had previously interviewed Smith, was called as a witness for the State. When asked about the likelihood of defendant perpetrating criminal acts in the future, Dr. Grigson testified that, based on information obtained at the competency exam, it was his opinion that the defendant was going to commit similar or the same criminal acts in the future if given the opportunity. The federal district court, on a writ of habeas corpus, vacated defendant's sentence. The Fifth Circuit affirmed. The Supreme Court, in an opinion by Chief Justice Burger, held that the use of Dr. Grigson's psychiatric testimony at defendant's sentencing hearing transgressed Smith's fifth and sixth amendment rights and vacated the sentence of death. In discussing the fifth amendment issue, the Court ruled that this amendment applies to the penalty phase of a trial as well as to the...