White v. Johnson

• Decision Date: 26 August 1998
• Docket Number: No. 97-41438,97-41438
• Citation: 153 F.3d 197
• Parties: Robert Excell WHITE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 197

153 F.3d 197

Robert Excell WHITE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-41438.

United States Court of Appeals Fifth Circuit.

Aug. 26, 1998.

Lawrence Brown, Fort Worth, TX, for Petitioner-Appellant.

Gena A. Blount, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, DAVIS and WIENER, Circuit Judges.

KING, Circuit Judge:

Petitioner-appellant Robert Excell White, a Texas death row inmate convicted of capital murder, appeals the district court's denial of his petition for a writ of habeas corpus. White contends that the district court erred in denying his petition because the trial court violated the mandate of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by denying his motion for the appointment of a psychiatrist to aid him during the sentencing phase of his trial, thereby denying him due process of law and rendering the assistance provided by his trial counsel unconstitutionally ineffective. Because we conclude that any Ake error that may have occurred in this case was harmless, we affirm.

I. FACTUAL BACKGROUND

On May 10, 1974, petitioner-appellant Robert Excell White, who at the time lived in Waco, Texas, began drinking alcohol at a local tavern around noon and continued until 1:00 a.m. He then took his wife home and proceeded to the home of Roy Perryman where he continued to drink. After drinking and talking with Perryman for a while, White pulled a knife that Perryman had sharpened for him from its scabbard and stabbed Perryman to death, stating, "Roy, I hate for it to end like this, but its [sic] your time to go." White then stole several firearms belonging to Perryman and left his home.

Shortly after killing Perryman, White left Waco with Gary Dale Livingston and subsequently met up with Gary Livingston's brother, James Livingston, at a motel on Interstate 35. The three proceeded north to McKinney, Texas. White and the Livingston brothers discussed robbing a store, and White observed that they would be unable to leave any witnesses to the robbery alive. They then proceeded approximately three miles east on Highway 380 to a gas station and convenience store named Hill Top Grocery, where they arrived at approximately 6:30 a.m.

The station owner, 73-year-old Preston Broyles, began pumping gas into White's car. Gary Coker and Billy St. John, both eighteen years old, had stopped to put oil in their truck at the station. White exited the car with a .30 caliber Plainfield carbine machine gun and ordered Broyles, Coker, and St. John into the station office. White ordered Broyles to open the cash register and ordered Broyles, Coker, and St. John to hand over their wallets. One of the robbery victims made a comment that apparently angered White. White responded, "I wished you hadn't said nothing, I'm going to kill you." James Livingston aimed a .22 caliber pistol at the victim who had made the comment, and White shoved him out of the way stating, "He's mine." White then repeatedly shot Broyles, Coker, and St. John, killing all three of them. Just prior to shooting the last of the victims, who was begging for his life, White stated, "Goddammit, you've got to go too, I'm not going to leave any witnesses." White and the Livingstons then returned to Waco, and the three divided up the proceeds of the robbery, with each of them receiving $65.

After returning to Waco, James Livingston parted company with White and Gary Livingston, who left town for California. They made it as far as Abilene, Texas and then decided to return to Waco. While in Waco, White and Gary Livingston threw the machine gun used in the Hill Top Grocery murders into the Brazos River. They then got some clothing and headed for Mississippi. Somewhere along the way, White got angry at Gary Livingston and threatened to shoot him. Gary Livingston asked to get out of the car, and White left him in Tyler, Texas.

White arrived at his cousin Johnny White's home in Cleveland, Mississippi on May 14, 1974. White told Johnny White about what had happened at Hill Top Grocery and also stated that he intended to kill a Mississippi judge known as Judge Micky, who had been involved in a previous criminal conviction of White. Johnny White convinced him to surrender to law enforcement authorities at the Boliver County Sheriff's Department. White gave statements to Mississippi and Texas law enforcement officers implicating himself in the Hill Top Grocery murders both at the Mississippi jail and during the trip back to Texas.

II. PROCEDURAL BACKGROUND

On May 24, 1974, a Collin County grand jury indicted White and the Livingston brothers for the capital murder of Broyles, Coker, and St. John. After a jury trial, White was found guilty of the capital murder of Broyles and sentenced to death. The Texas Court of Criminal Appeals affirmed White's conviction and sentence on July 14, 1976, see White v. State, 543 S.W.2d 104 (Tex.Crim.App.1976), and the Supreme Court denied his petition for a writ of certiorari, see White v. Texas, 430 U.S. 988, 97 S.Ct. 1689, 52 L.Ed.2d 384 (1977). White subsequently challenged his conviction collaterally through two state applications for a writ of habeas corpus. The Texas Court of Criminal Appeals granted the second such motion on the ground that White had been impermissibly compelled to undergo a government psychiatric examination, the results of which were used against him at trial, in violation of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and vacated his conviction.

On the same date that the Texas Court of Criminal Appeals granted White's application for a writ of habeas corpus, the trial court appointed counsel for White and again set the case for trial. The trial began on June 8, 1987, and the jury returned a guilty verdict. After the punishment phase, the jury answered the special issues submitted to it pursuant to article 37.071 of the Texas Code of Criminal Procedure in the affirmative. ¹ The trial court accordingly sentenced White to death. The Texas Court of Criminal Appeals affirmed White's conviction on direct appeal, and the Supreme Court denied his petition for a writ of certiorari, see White v. Texas, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

White filed his first federal habeas petition in 1993, and the district court dismissed it without prejudice on May 11, 1994, to allow White to exhaust his state remedies on the claims presented. White then filed a state application for habeas relief, which the Texas Court of Criminal Appeals denied on July 12, 1994. On July 14, 1994, White filed another federal habeas petition, asserting the same claims presented in his state habeas application and a motion to stay execution. On July 15, 1994, the district court granted White's motion for a stay. On November 7, 1997, the district court adopted the magistrate judge's report and recommendation that White's habeas petition be denied. See White v. Director, TDCJ-ID, 982 F.Supp. 1257, 1258 (E.D.Tex.1997). White filed a notice of appeal and an application for a certificate of probable cause (CPC) on November 24, 1997, and the district court granted White a CPC on December 12, 1997. White now appeals the district court's denial of his petition for habeas relief.

III. DISCUSSION

On appeal, White contends that he is entitled to habeas relief on two grounds: (1) the trial court committed constitutional error by denying his request for the appointment of a psychiatrist to aid with his defense at the punishment phase of his trial and (2) the court's failure to appoint such a psychiatrist rendered the assistance provided by his counsel unconstitutionally ineffective. We consider each of these arguments in turn.

A. Failure to Appoint a Psychiatrist

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the state has a constitutional obligation to provide an indigent criminal defendant with access to the assistance of a psychiatrist in the following two circumstances: (1) "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial" and (2) "in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness." Id. at 83, 105 S.Ct. 1087.

Based upon his belief that the state would offer psychiatric evidence to establish his future dangerousness during the punishment phase of his trial, White made a motion for the appointment of a psychiatrist. The trial court offered White the following options: (1) a simultaneous, joint examination conducted by a government psychiatrist and a psychiatrist of White's choosing or (2) an examination by a court-appointed psychiatrist who would then report to the trial court, the prosecution, and White. White declined both options and the trial court therefore denied his motion.

White contends that the options offered by the trial court did not satisfy Ake because they forced him to make a choice between exercising his due process and equal protection-based rights to psychiatric assistance and his Fifth Amendment privilege against self-incrimination. He bases this argument on the fact that both options proposed by the trial court would have resulted in full disclosure of the results of the examination and any incriminating statements made by White during the examination to the state. The state concedes that its intention to offer psychiatric evidence of White's future dangerousness was sufficient to vest White with a right to psychiatric assistance under Ake. However, it contends that the options proposed by the trial court were sufficient to satisfy Ake. For the reasons set forth below, we conclude that we need not reach the issue of whether the...