Lead Opinion
Benjamin Herbert Boyle, sentenced to death for the murder of Gail Lenore Smith,, appeals the district court’s denial of his petition for writ of habeas corpus. Finding no reversible error, we affirm.
I
Gail Lenore Smith drove with her stepbrother and sister-in-law to a rest stop outside Fort Worth, Texas. Smith planned to obtain a ride from a truck driver in order to visit her mother in Amarillo. She asked her relatives to write down the license number of the truck she boarded, in case anything happened. A few minutes after arriving at the rest stop, Smith’s relatives observed her approach a male truck driver, converse with him, and then board his cherry-red Peterbilt tractor-trailer.
The next day, a passing truck driver discovered Smith’s naked body, bound with duct tape, concealed in a brushy area fourteen miles north of Amarillo. Although Smith’s relatives had failed to write down the truck’s license number, they were able to give authorities a description of the driver and the
Boyle was indicted for capital murder during the course of committing or attempting to commit aggravated sexual assault, and capital murder during the course of kidnap-ing. Boyle pleaded not guilty, and was tried before a jury. The evidence at trial consisted of the physical evidence linking Boyle to the murder, medical evidence indicating the sexual nature of the murder, and other evidence tending to show Boyle’s obsession with sex. The jury found Boyle guilty on all counts and, after hearing evidence relevant to punishment, returned affirmative answers to the special issues found in article 37.071 of the Texas Code of Criminal Procedure. As required by law, the trial court sentenced Boyle to death.
On automatic appeal, the Texas Court of Criminal Appeals reversed Boyle’s conviction on the grounds that his arrest had been unlawful, and thus the evidence obtained pursuant to that arrest had been admitted in violation of Boyle’s constitutional rights. Boyle v. State,
II
Boyle argues that the trial court erred in admitting evidence of his sexual habits and drawings. Boyle maintains that admission of this evidence violated his First Amendment right to not have evidence of his associations and expressions admitted against him at sentencing. While there is no “per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment,” the government may not admit such evidence indiscriminately. Dawson v. Delaware,
At sentencing, the trial court first admitted all the evidence that had been admitted at the guilt-innocence phase, including three letters and brief testimony concerning Boyle’s preoccupation with sex.
37.071(b)(2) (Vernon 1981).
Ill
Boyle next contends that he was denied a fair trial because of the state’s presentation of false and misleading testimony from a clinical pathologist, Dr. Ralph Erdmann. Boyle contends that Dr. Erdmann’s gross misconduct in other cases indicates that the testimony Dr. Erdmann gave was perjured. Boyle also maintains that the prosecutor knew that Erdmann was unreliable in his handling of evidence and in his testimony from the stand, but failed to notify the de
In order to establish a due process violation based on the government’s use of false or misleading testimony, the defendant must show (1) that the witness’s testimony was actually false, (2) that the testimony was material, and (3) that the prosecution had knowledge that the witness’s testimony was false. Westley v. Johnson,
Boyle’s attack on Dr. Erdmann’s testimony is based on the testimony of one expert at trial, and two experts who testified at Boyle’s habeas hearing. These experts disagreed with Erdmann’s analysis and interpretation of the evidence presented in Boyle’s case.
After carefully reviewing the record, we cannot say that Boyle has presented evidence sufficient to overcome the presumption of correctness owed state habeas court findings of fact. The fact that other experts disagreed with Dr. Erdmann is insufficient, by itself, to call Dr. Erdmann’s testimony into question. Additionally, we note, as the district court did, that the state presented a great deal of physical evidence connecting Boyle to the murder. Dr. Erdmann’s testimony was consistent with the state’s physical evidence, whereas much of the conflicting expert testimony was inconsistent with this other evidence.
Further, we also reject Boyle’s contention that the state knew of Erdmann’s unreliability prior to Boyle’s trial and failed to notify the defense for impeachment purposes. The state habeas court made a finding that the prosecution was not aware of Erdmann’s serious shortcomings at the time of Boyle’s trial. This finding is also entitled to a presumption of correctness. A careful review of the record shows that the only evidence indicating that the state had any reservations about Erdmann was prosecution testimony relating to Erdmann’s workload, not his competence or professional practices. It was not until 1987 or 1988, after the completion of Boyle’s trial, that the prosecution was alerted to the possibility that Dr. Erdmann had falsified autopsies and committed perjury in other cases. Accordingly, we agree with the district court that Boyle has failed to establish that the state improperly withheld impeachment evidence from the defense. Boyle has presented no evidence to call into question the state habeas court’s findings, upheld by the district court, that Erdmann did not perjure himself in this case, and that the prosecution had no knowledge of Erdmann’s abuses prior to trial.
IV
Boyle argues that the district court erred in denying his petition for habeas relief on the ground that his attorney rendered ineffective assistance at the punishment phase of his trial. According to Boyle, his counsel failed to present significant mitigating evidence that was either known to his counsel or should have been known to his counsel. Boyle maintains that his counsel did not present evidence of his mental illness, violent family background, economic deprivation, voluntary intoxication, drug and alcohol addictions, and testimony as to his many positive traits.
We review ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington,
After careful review of the record, we find that Boyle has failed to establish that his counsel was deficient at trial. At Boyle’s writ hearing, his trial counsel testified that he did not introduce certain evidence concerning Boyle’s background and character for tactical reasons. As to the evidence of Boyle’s violent family background, trial counsel responded, “It would have been aggravating.” As counsel put it, “We were trying to keep as much violence as we possibly could out of the record.” Counsel was concerned that evidence of his abusive father would cause the jury to think, “like father, like son.” As to the evidence of
V
We note that while this appeal was pending, Congress passed The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132. 110 Stat. 1214 (“AEDPA”). The AEDPA modifies the statutory provisions relevant to all habeas corpus cases. These changes include, inter alia: a one year statute of limitation for habeas cases; new procedures for obtaining a “certificate of ap-pealability” to the circuit courts; and limitations on successive habeas petitions. See generally §§ 101-106. Congress, however, did not specify an effective date for §§ 101-106. Because we reject Boyle’s habeas petition under the old standards, which we read as more permissive, we decline to address whether Congress intended these general provisions to apply to appeals pending when the AEDPA was enacted. See Callins v. Johnson,
VI
For the foregoing reasons, the district court’s decision to deny Boyle’s petition for writ of habeas corpus is AFFIRMED.
Notes
. Officers also obtained consent to search the vehicle from Jewett Scott, the owner of the truck.
. Dawson involved a death sentence based in part on a stipulation that Dawson belonged to a racist gang, the Aryan Brotherhood. The Supreme Court held that the stipulation was inadmissible because the state had failed to show that the evidence was in any way linked to an issue at
. We therefore need not address whether Boyle's sexual associations and drawings are protected by the Constitution. Cf. Wallace v. Texas Tech University,
. This evidence was admitted at the punishment phase by operation of law. Richard v. State,
. The additional testimony at sentencing included statements by Boyle's daughter that Boyle was a "womanizer” and that he drew and kept many explicit sexual pictures. Norma Myers, a former lover, also testified that Boyle had a strong preference for oral and anal sex, that he put pressure on her to perform these acts, and that he sometimes held her down and pretended to choke her during foreplay. Finally, an inmate formerly incarcerated with Boyle testified that Boyle associated violence with sex. According to this witness, whenever another inmate mentioned trouble with women, Boyle would remark that, "If it was me, I’d slap her, throw her down on the floor and fuck her in the ass.” The state also introduced a sexually explicit picture, drawn by Boyle, of a woman using a complicated mechanical device to masturbate.
. Article 37.071(b)(2) of the Texas Code of Criminal Procedure defines future dangerousness as “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”
. Our analysis is guided by the Supreme Court's discussion of Barclay v. Florida,
Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. In Barclay, on the contrary, the evidence showed that the defendant's membership in the Black Liberation Army, and his consequent desire to start a "racial war,” were related to the murder of a white hitchhiker.... In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing.
. We distinguish this case from Beam v. Paskett,
. In addition, Boyle argues that the presentation of evidence regarding his sexual habits at the guilt-innocence phase of his trial also violated the dictates of Dawson. Dawson, however, dealt solely with the introduction of such evidence at sentencing. Dawson,
.Dr. Erdmann testified that he observed anal dilation post mortem which he interpreted as evidence that something, possibly a penis, had been inserted into the victim's anus from the outside. Erdmann testified that this dilation could not have been naturally caused by death. Further, Erdmann testified that he observed an anal fissure or tear which he also interpreted as indicating that something had been inserted in the victim's anus. Finally, Erdmann testified that he found a slight amount of "prostatic antigen,” a component of semen, in the victim’s mouth. He interpreted this to mean that the perpetrator had ejaculated into the victim’s mouth shortly before death because the antigen would not have been present had the victim lived for very long after the ejaculation. At trial and at the habeas hearing, other experts challenged Dr. Erdmann’s conclusions. These experts testified that a victim's anus can dilate at death, that the slight anal tear was not caused by violent insertion, that the slight amount of prostatic antigen found in the victim’s mouth is inconsistent with ejaculation because it contained no sperm and the amount was too small to indicate ejaculation.
. Dr. Erdmann is currently imprisoned for falsifying autopsy reports.
. Indeed, as the district court noted, Boyle’s experts themselves disagreed as to the proper interpretation of the evidence on such important questions as whether the substances found in the victim's mouth indicated that she had been orally sodomized.
. Because we find that the district court did not err in upholding the habeas court’s finding that Dr. Erdmann did not testify falsely, we also find that the state had no duty to correct Dr. Erd-mann's testimony. See Faulder v. Johnson,
. As to Boyle’s possible mental illness, the defense was concerned that the evidence would not be mitigating. Further, the defense was concerned that if they put on such psychiatric evidence, the state would put on its own psychiatrist to testify as to Boyle's violent tendencies.
. Boyle's counsel testified,
Well, because Mr. Boyle, while being a rather articulate artist, there were two types of art that he delved in. He had the capability of drawing a small kitten that looked so soft you would want to pick it up and pet it.... He also had the ability to draw masochistic sadistic cult type art depicting women in bondage under the throes of demonic type men. And I don't think that that was the type of art that was conducive to convincing a jury not to kill him.
. Boyle's counsel testified that all the women who were willing to testify as to Boyle's good nature were women with whom he was having adulterous relations. As Boyle's counsel put it, "If I put in about alcohol and his womanizing and his running around on his wife and his running around on his girlfriends, that is not going to be a mitigating factor in Amarillo, Texas.”
. As Boyle's counsel testified, "Well, every family member I talked to was a possible mitigation witness. Every girlfriend I talked to was a possible mitigation witness. But eveiy time I talked to some of these people, the I — there were other problems associated with it.” Boyle’s counsel concluded, "That's why we didn't talk about his use of amphetamines while driving a truck. That's why we didn’t talk about his alcoholism. That's why we didn’t talk about the child abuse. That's why we damn sure didn't talk about his sex life.”
.We also reject Boyle’s contention that his trial counsel failed to adequately investigate possible mitigation evidence. Counsel's testimony during the state habeas hearing indicates that they attempted to talk to a great number of mitigation witnesses, supplied by Boyle himself. As counsel put it, most of these witnesses "were as harmful or more so than the good that could come from it.” In fact, several members of Boyle’s own family testified against him at sentencing. In addition, Boyle’s counsel was aware of most of the evidence that Boyle claims his counsel would have discovered through further investigation, but they had decided that the evidence was more harmful than helpful to Boyle’s case. Accordingly, we cannot say that Boyle's counsel was ineffective in failing to adequately investigate possible mitigation evidence. See Anderson v. Collins,
. In death penalty cases, the Act limits review of questions of law to those adjudicated in the state courts and allows reversal only if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” See § 107. As to factual questions, the Act limits reversal to decisions "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See § 107.
. Section 107 is applicable only if the state establishes, subject to certain restrictions, "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners." See § 107.
Concurrence Opinion
specially concurring:
Boyle’s able habeas counsel has done a remarkable job developing “Dawson issues” in this case, and my scholarly brother has been most generous in the extensive treatment of those issues provided in the majority opinion. I am reluctant to subscribe to that treatment, however, and I therefore concur in the judgment.