Leslie Lowenfield v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary, Respondents
843 F.2d 183
5th Cir.
1988
Check Treatment

*1 away; however, passenger paid Zukas and his cash for fuel subjective his intent is not room, by drug a hotel as is often done important and determining whether an arrest (4) Miami, smugglers; plane the from flew was made and he made no statements dur- drug Texas, traffic center to and was investigation the to indicate to Zukas California, apparently headed another impede prevent that he would or Zukas and area; (5) drug-trafficking passenger ap- passenger departing his the аrea if nervous, peared gold jewelry wore and car- they prepared had been to do so. The cash; (6) large ried a amount of calls had presence of the two officers and their car California, their been made from motel to inhibiting must be considered to some ex- prior drug-smuggling and Zukas had a tent, mitigated by but this was the officers’ suspect arrest and awas of the DEA. Ad- approach, casual they the fact that dis- mittedly, several of these factors havе no played weapons, clothes, no plain wore independent significance except they car, were an unmarked and advised the drug-smugglers’ profile. fit the DEA’s passenger that he was not under arrest. alone, single sup- Taken no factor would Considering all these factors and the level reasonable, port particularized suspicion legitimate suspicion, government’s regard to the activities of Zukas and justified interest the limited intrusion made factors, pаssenger. When these how- upon right the individuals’ of movement. ever, together are considered with Zukas’s hold, therefore, given We totality record, prior specific activities observed circumstances, of the the level of intrusion informant, agent and the justified by legitimate the officers’ agents’ experience expertise, level suspicion. reasonable The district court significance great- their renders the whole suppres- did not err when it denied Zukas’s parts. er thаn the sum of its When the sion motion. began questioning officers Zukas and the reasons, foregoing judgment For the therefore, passenger, sup- the seizure was of conviction is ported by suspicion justi- reasonable fied to the extent that it was no more than AFFIRMED. investigatory stop.

an suspicion did not rise to the cause, probable though,

level of until after passenger

Zukas and the had consented to discovery

a search that resulted in the Although agree

cocaine. both sides voluntary, jus search was it cannot preceding if tified level of intrusion LOWENFIELD, Leslie made the seizure a de arrest before fаcto Petitioner-Appellant, given, argues the consent was as Zukas hold, however, that, was the case. We upon totality based of the circumstanc BUTLER, Sr., Warden, Robert H. es, prior the level of intrusion to the con Penitentiary, Louisiana State sent search no more than was neces Respondents-Appellees. dispel legitimate suspi sary to the officers’ No. 88-3252. Although parked the officers on the cions. plane,

tarmac in front of the their actions Apрeals, United States Court of impede not or interfere with Zukas’s did Fifth Circuit. preparations. The officers did preflight require suspects to move to a new April investiga their locale order to conduct argument

tion. We concede Zukas’s from Nesto

is clear from the facts and testimony ‍​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌‌​‌‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‍that Nestoroff would have

roff’s plane fly let the most reluctant

been

184 City, Klingsberg, New York Nan-

David Marshall, Orleans, La., petition- cy New for er-appellant. Gretna, Mamoulides, Atty., Dist.

John Guste, Jr., Gen., La., Baton Atty. William La., Rouge, respondents-appellees. for REAVLEY, JOHNSON, Before DAVIS, Judges. Circuit DAVIS, Judge: W. EUGENE Circuit Following relief the denial habeas 13, January on Supreme the U.S. Court 1988, in court which Lowenfield state resentenced Lowenfield was convicted early morning executed in the hours 13, days than full April 1988.1 Less two execution, before scheduled application in state filed a writ second (1) seeking grounds: court relief on three give jury proper trial court failed to mitigating guidance on the circumstances weight give or the it should could consider determining whether to these factors impose penalty; one because statutory aggravating factors of the two jury predicated its sentence upon which the Supreme by the Louisiana was invalidated appeal inad- and because direct by the state evidence was adduced missible support aggravating factor the of that vacated; (3) Lowen- sentence must be present precludes field’s mental condition executing the state from him. Supreme ha- The Louisiana Court denied ap- summаry relief and at beas fashion (5th Cir.), grant legal application, 285 cert. background this case 817 F.2d The factual and —ed, U.S. —, fully opinion the Louisi 734 described 107 S.Ct. L.Ed.2d 97 Supreme appeal, So.2d (1987), ana Court on 495 direct decision — the U.S. Court’s denied, (La.1985), 106 relief, 1245 cert. U.S. 476 reviewing U.S. denial of our habeas (1986), opinion in S.Ct. our 90 —, (1988). 568 S.Ct. L.Ed.2d habeas we ruled on Lowenfield’s initial Butler, (5th Wilson v. 813 F.2d 664 seven hours p.m., some 5:00 proximately Cir.1987), Cir.), reh’g granted, (5th execution, 825 F.2d 879 the scheduled — denied, rt. U.S. —, seeking relief on petition habeas filed his ce (1988), in federal district court. 98 L.Ed.2d 1021 we considered these same claims court, following brief hear- adequacy substantially of a identical ‍​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌‌​‌‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‍The district p.m. Petitioner relief at 7:30 ing, charge by denied all another Louisiana court and *3 court, appeal in this notice of passed then filed a it constitutional muster. found that Stephens, with Zant v. of Prob- along motions for Certificate with This is consistent execu- (CPC) for a of 862, 103 able Cause 77 L.Ed.2d 235 462 U.S. S.Ct. tion. that the in the Court held which require does not a statе to Constitution relief Although court denied the district instructing adopt specific standards for the above, ground on the 1 and on claims aggravating of jury in its consideration writ, we do not petitioner abused the that Id. 873-81, at mitigating circumstances. hold that question but instead reach this 2741-44, This claim 103 S.Ct. at 2750. show- not made a substantial petitioner has rejected.3 is therefore right and we a federal ing of the denial of stay of execution. deny and a CPC II. I. argues next that because one the argues first that рetitioner The statutory aggravating factors of the two adequate give jury failed to the

trial court jury the was later invalidated found mitigating circumstances guidance on what Supreme appeal by the Louisiana direct weight it should and what it could consider inadmissible evidence Court because mer This claim is without to them. attach support that by the state in of was adduced room charge left no The trial court’s it. factor the death sentence aggravating to jury entitled the was for doubt must be vacated. mitigating circum any relevant consider statutory following jury The found the determine the it and could stances wished aggravating circumstances: assign such factor.2 weight to each to (G) principal a whose jury part The offender was charged in as follows: the 2. The court minor; relatively participation was aggravat- you find the existence of the Even if (H) mitigating Any circum- other relevant any you must also consider circumstance stancе. mitigating one, three, relative to counts circumstances However, specifically addition to those and four of the indictment you may mitigating circumstances provided you of death should decide that a sentence mitigating any other relevant also consider provides imposed. specifically cer- The law any may consider other You circumstance. They mitigating are: circumstances. tain you feel should circumstances relevant (A) prior significant hаs no The offender mitigate severity to be im- of the the activity; history of criminal given you posed. are a list The fact that (B) the committed while The offense was mitigating circumstances aggravating and the influence of extreme offender under you infer that the Court cause to should not disturbance; or emotional mental or any circumstances do other believes (C) committed while the The offense was jury requires that the exist. The law do not or under the was under the influence оffender every given case. Whether such a list in person; of another domination mitigating any aggravating circumstances or (D) committed under cir- The offense was upon you to determine based is a fact for exist reasonably be- the offender cumstances which presented. the evidence justification ex- provide moral or lieved to a Cir.1987), (5th conduct; Lynaugh, 823 F.2d 98 Franklin v. for his tenuation — U.S. —, granted, capacity (E) rt. At the time of the offense ce (1987), Supreme criminality which the аppreciate of the offender certiorari, only recently granted is writs of Court his conduct to his conduct or to conform procedure followed under impaired with the as a concerned requirements of law was have no penalty scheme. We Texas death or intoxi- mental disease or defect result of a cation; this case will a decision in to believe that reason procedure. any the Louisiana (F) effect on youth at the time of hаve of the offender The offense; (a) prose- The victim was a witness a bill of charging information defendant, gave against cution material harrassing witness, the victim as a any investigation assistance to state fundamentally ‍​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌‌​‌‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‍rendered the trial unfair. defendant, prosecution or of the or anwas original We to our determi adhere eyewitness alleged crime to a have been Supreme the Louisiana nation possessed by the defendant or committed concluding had a solid basis for against the other material evidence defend- of this evidence harmless admission ant. agree We Su error. Louisiana (b) knowingly a The offender created preme con Court that defendant was “[t]he great bodily harm risk death or to more wiping five victed of out members a person. than one girl, in family, including four-year a old Court found that Louisiana jealousy. overwhelming fit of Given aggravating the first circumstance —that crime, enormity of the defendant's prоsecution in a the victim was witness *4 inconceivable the additional evidence that against not the defendant —could stand be- charged making the defendant was sup- cause insufficient to the evidence was harassing phone prejudiced calls could have finding. port that 495 the defendant.” So.2d at found The Louisiana This claim has no merit. aggravating cir that the other however by supported well cumstance was sup clearly is record. This determination III. presumed is cоr ported by the record and his Lowenfield’s and tri- Between arrest challenge to its rect. There has been no al, the Louisiana state court convened case. validity applied as this separate sanity commissions to in- three law, only aggravat one Under Louisiana quire sanity. the first into Lowenfield’s At jury is for the circumstance needed 17, 1983, hearings on March and two held penalty. La.Code Crim. impose the death 16, 1984, February physicians the two or- (West Supp.1988). As Proc.Ann. art. 905.3 fоund dered to examine Lowenfield both Butler, stated in James v. F.2d 827 we capable mentally to stand him sane and Cir.1987), however, (5th fact 1006 “[t]he 7, hearing 1984, May At the third on trial. aggravating cir statutory an that invalid Cox, Arneson, Shraberg testified Drs. does consti cumstance has been found competent to stand impair a under that tutionally death sentence procedure jury has despite paranoid personality the Louisiana where disor- trial aggravating circum also found another disagreed testified der. Dr. Richeaux supported by the stance which is evidence him paranoia rendered un- that defendant’s under the law and of itself and is valid hearing, After each able to assist counsel. imposition suffices to authorize trial court found that Lowenfield v. (citing penalty.” Id. at 1013 Zant competent to be tried. 862, 2733, Stephens, 462 U.S. 103 S.Ct. 77 1988, April 11, Lowenfield filed a On Butler, v. (1983); Celestine claiming petition in the state court habeas denied, (5th Cir.1987), 74, 823 F.2d 78 pre- insanity — first that his for the time 6, U.S. —, 108 97 796 L.Ed.2d execution; his his federal habeas cluded Blackburn, v. (1987)); F.2d 793 Welcome — peti- petition, today, filed traces state denied, (5th Cir.1986), cert. 678 —, predicated claim is on 95 L.Ed.2d tion. Lowenfield’s U.S. 107 S.Ct. Blackburn, (1987); 791 F.2d Glass by psycholo- an affidavit executed a clinical — denied, Cir.1986), cert. (5th U.S. gist, Dr. Zim- Dr. Marc L. Zimmerman. (1987). —, 95 L.Ed.2d 107 S.Ct. stated he Lowen- merman that met with 26, 1988, for approximately March field on prong peti- the second We addressed him a ruling and administered to test previous five hours argument tioner’s our Multiphasic Petitioner Per- application. his habeas as the “Minnesota initial known (MMPI) an state, introducing sonality Inventory” well as argued that reading intelligence ability plurality opinion and a test. test was made a majori- ty by “on the basis of the the concurring opinion He stated further that of Justice MMPI, I have interview reached a opinion, Powell. that Justice Powell ar- conclusion, subject to preliminary further particularity ticulates with more the class testing, it is psychological highly prob- prisoner eighth entitled to this amend- suffering is able Mr. Lowenfield protection: ment schizophrenia.” He paranoid also states perceives If the defendant the connection schizophrenic “as a Mr. Low- punishment, between crime and his capacity understand enfield’s the death goal of the criminal retributive is law Indeed, impaired. my penalty would be satisfied, only if the defendant is clinical Mr. Lowenfield indi- interview with is approaching aware that his death can currently unable cated he is to under- prepare passing. he himself for his Ac- Finally, penalty.” stand the death Dr. Zim- cordingly, I hold that the eighth merman that: concluded amendment the execution only forbids that further evaluation be essential [I]t those punish- who are unaware of the done to ascertain Lowenfield’s men- they ment why are about to suffer and proba- tal This evaluation would status. they are to suffer it. bly psychologi- take ten hours of at least 2608-09, at Id. 106 S.Ct. at 91 L.Ed.2d interviews, spread testing cal and clinical (Powell, J., conсurring at 354 in the judg- over visits. Mr. Lowenfield’s several ment). history medical/psychiatric must be ob- Dr. Zimmerman’s affidavit does not tests, Also, “objective” tained. such as *5 present the showing substantial threshold Analysis Questionnaire the Clinical and that Lowenfield falls within above-de Inventory the Millón Multi-Axial should mentally deranged prisoners fined class of per- Such tests be administered. process requires so that due that he be comparison mit of Mr. Lowenfield’s re- hearing. afforded a Justice Powell noted sponses questions those to standard that: given by persons diagnosed with schizo- order have to been convicted and [I]n phrenia, great- to determine in order sentenced, petitioner must have been certainty origin er of Mr. Lowen- trial, judged competent to stand or his A full field’s illness. mental evaluation sufficiently competency must have been use of require “projective” will also question serious clear not to raise a tests, the Rohrschach The- such as for the court. Thе State therefore trial Tests, in matic Apperception may presume petitioner properly that re- presented Lowenfield would be with am- mains time sentence sane at the is to be biguous images and asked what he visual out, may require carried a substan- learn sees them in order to more about insanity of showing tial threshold mere- processes his mental emotions. hearing process. ly trigger to Wainwright, The Ford v. Court 2610, 425-26, at 91 Id. at 106 S.Ct. L.Ed.2d 399, 2595, 106 S.Ct. 7 91 U.S. 47 L.Ed.2d 335 (Powell, J., concurring in at 356-57 eighth held that added). (еmphasis judgment) pris of execution insane amendment bars preliminary Dr. Zimmerman’s conclusion Marshall, plurality in his oners. Justice suffering paranoid from that Lowenfield is gives insight opinion, type some into the us woefully schizophrenia falls short a find- prisoner mental a must suffer disorder deranged so he protection. this Justice to be afforded put is unaware that he is about to be to relief suggests depends that this Marshall as a his earlier result of conviction “comprehend[s] prisonеr on whether the pe- murder. Because the and sentence for penalty” of the whether the the nature titioner has made a substantial thresh- “prevents prisoner’s illness him mental showing produce old that he can evidence the reasons for the comprehending so 399, that his infirmities are severe as implication.” Id. at mental or its standard we conclude to meet the above 91 L.Ed.2d hearing Thus, no required. accompanied corpus peti- vit the habeas deprivе State of Louisiana did not Lowen- Consequently, tion. the District Court’s process field of due it refused to ruling part upon hearing when is based in a at commission, sanity convene a La. under rights which Mr. Lowenfield's to redirect (West Code Crim.Proc.Ann. arts. witnesses, repre- or cross-examine to be 1981). Similarly, the federal habeas court counsel, to a provided sented or compelled by process was not due concerns proceedings, record were all effective- grant hearing. to a The district court cor- Moreover, ly at nullified. the time the rectly on this rejected habeas relief claim. held, secret conversation was the District any jurisdiction lacked over the conclusion, In Lowenfield has to failed petition had case because no been filed showing make a of the substantial denial of there. right; consequently deny a federal we a probable deny certificate of cause and also out, points As Lowenfield the district Es- See of execution. Barefoot gathered court this “evidence” ac telle, 880, 883, 463 U.S. 103 S.Ct. quiring jurisdiction over case and with (1983). giving out or opportu Lowenfield notice an Moreover, nity respond. mandate shall issue forthwith. it is clear from opinion the district court's that the court’s JOHNSON, Judge, dissenting: Circuit conversation with Dr. cru Zimmerman was cial court’s to the resolution the issue. corpus chief claim habeas re for improper Without the conver Zimmerman case, cаpital lief this Leslie Lowenfield sation, the entire record on the incom incompetent presently asserts that he is petence to be executed issue consists of the under the dictates of Ford v. executed 2595, Zimmerman Had the district Wainwright, 477 U.S. affidavit. 106 S.Ct. affidavit, (1986). only court considered it 91 L.Ed.2d 335 found in could have that Lowenfield was corpus peti- Lowenfield’s federal habeas competent, for Dr. Zimmerman stat there tion was filed with the district court ed that Lowenfield is schizo early evening. The district court denied phrenic and does not understand the death petition by p.m.; 7:15 received *6 imposed is to The on him. p.m. this writer at 8:00 district By presents State no counter evidence. court, have incredibly, appears to relied basing opinion its on evidence outside the upon private an extended conversation with record, any the district court failed make to expert Zim- Lowenfield’s witness Marc L. on the record. finding say, I as a cannot Ph.D., merman, thе time Lowenfield law, matter of that the Zimmerman affidav petition in filed his habeas federal court. finding support it* to was insufficient a opinion “My The court’s recited extended that Lowenfield met at least the threshold Dr. Zimmerman conversation with has con- requirements hearing. Accordingly, for I a petitioner the capacity vinced me that has grant a would remand for pending to understand the realities of the finding, ‍​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌‌​‌‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‍to district court make a based on execution.” evidencе, record on whether Lowenfield application In to this Court for a his hearing incompetence have a to should cause, probable certificate be executed. represents that Court, flouting ele District most APPENDIX concepts process, rested mentary of due MARC L. AFFIDAVIT OF finding its that Mr. Lowenfield is factual ZIMMERMAN, Ph.D. incompetent to be executed under Wainwright, Ford 477 U.S. 399 [106 STATE OF LOUISIANA (1986), upon 91 L.Ed.2d 399] OF BATON PARISH EAST ROUGE private it ini an “extended” conversation ZIMMERMAN, Ph.D., being expert MARC L. Mr. wit tiated with Lowenfield’s sworn, ness, although expert’s duly says sworn affida- first follows: * entirety. appendix setting in See forth the Zimmer- affidavit its attached man people,

social contacts with other ex- hostility inappropriate suspi- treme and Zimmerman, L. My name is Marc 1. may difficulty in cion. He have concentrat- currently psychologist I a clinical Ph.D. am thoughts, typically respond his and will Rouge, Louisi- practice in Baton private in even to minor frustrations with excessive practice since private in I have been ana. may emotion. He also suffer from halluci- 1980. nations. training psy- in clinical my I received 2. University,

chology at East Texas State paranoid schizophrenic, a 8. As Mr. my psychol- in I received Ph.D. from which distinguish ability right to Lowenfield’s prac- to I have been licensed ogy in 1977. wrong respect in to the conduct since Louisiana tice in Texas question impaired. would have been by the I have certified since 1979. been paranoid schizophrenia may 9. have His Register of Health for thе National Council irrationally Mr. Lowenfield to resist caused and I am Psychology, Service Providers attempts to evaluate his mental status Academy of of the American Diplomat a through objective psychological the use I am a member Medicine. Behavioral Psychological Association tests. American Society Hyp- American of Clinical and the paranoid schizophrenic, Mr. 10. As nosis. ability knowingly, to voluntar- Lowenfield’s practicing psychologist I have been a 3. intelligently right ily and waive in Louisiana practiced and have since guilt insanity evidence of his at the present 1978, I was From 1977 to since 1980. trial, stages or in sentencing of his (Texas) County Angelina Director of the subsequent proceedings for collateral re- joined I Mental Health Clinic. lief, impaired. have been would Health Center as Rouge Baton Mental schizophrenic, 11. As a position I re- Psychologist, in which Chief pro- ability to understand the Lowenfield’s entering private рractice until mained against him in his ceedings or to assist 1980. impaired. have been defense would Leslie 0. personally I interviewed approxi- for on March paranoid schizo- 12. Mr. Lowenfield’s hours, himto mately five and administered pertinent miti- constitute a phrenia would known as psychological test a standardized under La.Code Crim. gating circumstance Personality In- Multiphasic the “Minnesota 905.5, lay jury that a Proc. art. such (‘MMPI’),” an intelli- ventory as well as testimony psycho- of a by the assisted reading ability test. gence test and deciding or not logical whether witness the interview and 5. On the basis of death sentence. impose MMPI, preliminary con- I reached a have *7 schizophrenic, Mr. paranoid 13. As a clusion, psychological subject to further capacity to understand Lowenfield’s Mr. highly probable is testing, that it Indeed, impaired. would paranoid suffering is Lowenfield Mr. Lowenfield my clinical interview with schizophrenia. currently unable indicated that he is per- of study A hаs found that 6. 85% penalty. the death understand Mr. profile as obtain the same sons who reasons, is essential 14. For these diagnosed as on the MMPI are done to ascertain P.A., further evaluation be Marks, & schizophrenics. This eval- Description mental status. Seeman, Lowenfield’s W. The Actuarial Mr. ten Personality. probably Baltimore: Wil- take at least Abnormal would uation Wilkins, testing liam and 1963. and clinical psychological hours of interviews, Mr. spread over several visits. by the profile 7. The сlinical revealed history medical/psychiatric Lowenfield’s is like- that Mr. Lowenfield MMPI indicates tests, Also, “objective” obtained. must be he is afflicted with delusions ly to be Questionnaire Analysis as the Clinical such likely to being unjustly persecuted. He Inventory Multi-Axial stimuli, including and the Million to environmental react Such tests would should be administered. re- comparison of Mr. Lowenfield's

permit questions those

sponses to with standard diagnosed

given by persons schizo- greater

phrenia, order to determine with

certainty origin of Mr. Lowenfield's A full will also

mental illness. evaluation tests, “projective” such

require the use Appercep- the Rohrschach ‍​‌‌‌‌‌‌​​‌​‌‌​‌‌‌‌‌​‌‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‍and Thematic Tests, in

tion images ambiguous presented visual he sees in them in order to

and asked what processes more his mental

learn about

emotions. types brain le- Because certain produce symptoms can

sions or trauma produced by paranoid to those

similar

schizophrenia, psycho-organicity tests administered, such as

should also be Re- Benton Visual

Bender Gestalt and the Tests, supplemented by possibly

tention Tomography Scan.

Positive Emission NOT. AFFIANT SAYETH

FURTHER Zimmerman, L. Ph.D.

/s/Marc Zimmerman,

Marc Ph.D. L. BODNAR,

Stephen J.

Plaintiff-Appellant,

v.

SYNPOL, INC., Defendant-Appellee. Welch, and B.E.

J.E. BLANKENSHIP s-Appellants,

Plaintiff

SYNPOL, INC., Defendant-Appellee.

No. 86-2966. Appeals, Court of

United States

Fifth Circuit.

April 26, 1988.

Rehearing May Denied