Ronald K. Spivey v. Walter Zant, Warden, Georgia Diagnostic and Classification Center

DYER, FAY, Before TJOFLAT and Cir- Judges. cuit TJOFLAT, Judge: Circuit I. 30, 1977,

On June Superior in the Muscogee County, Georgia, Court of petitioner, victed the Spivey, Ronald Keith of one count kidnap- each of murder and ping aggravated and two counts each of robbery. assault armed separate In a sentencing proceeding, the same rec- Spivey ommended that be sentenced to death charge. on the murder The trial followed recommendation and death; Spivey sentenced he sentenced imprisonment Spivey life on the armed robbery charges, years twenty on the kid- napping charge, years and ten on each as- charge. sault Supreme Georgia Court of affirmed sentence, the conviction the Supreme Court of United States State, denied Spivey certiorari. 241 Ga. denied, 246 S.E.2d cert. 439 U.S. (1978). 58 L.Ed.2d 699 petition then filed for a writ of corpus Superior habeas Court of County, Georgia. Butts That court con- evidentiary hearing ducted an and then de- petition. Spivey’s application nied the tion of the sixth and fourteenth amend Supreme Georgia Court of for a certifi- ments, the trial deprived guid him of probable denied, appeal cate of cause to ance preparation from counsel in the of his and the Court United by compelling defense objec him over his Zant, States denied certiorari. undergo sanity tion to examination with L.Ed.2d out notice of purpose examina tion, at a represented time when he was not 20, 1979, Spivey On December filed a by counsel and had not raised an petition for corpus a writ of habeas in the defense; (2) that the State’s introduction United States District Court for the Middle into testimony evidence of the psy Georgia requested District of an evi- chiatrist who sanity conducted the examina dentiary hearing. The district court issued tion violated fifth and four February its order on denying rights; teenth amendment that he was Spivey’s request evidentiary for an hearing deprived of the effective assistance of coun petition and his for the writ. sel because of his attorney’s failure to in appeal, petitioner On asserts three vestigate, prepare, effectively and present grounds for relief from his death sentence: defense develop and to a single (1) Georgia that capital trial court’s mitigating circumstance capital in this case. sentencing instructions to the were For reasons set out in Part III of this constitutionally inadequate; (2) that opinion, we hold that the district court prosecutor’s argument jury during to the denying petitioner’s erred in request for an sentencing phase of the trial was im evidentiary hearing concerning depriva proper prejudicial in violation of the tion of his sixth and fourteenth amendment eighth amendments; (3) and fourteenth rights sanity associated with the examina that the trial court’s dismissal for cause of a tion, and we therefore remand for an evi particular improper venireman was because dentiary hearing. Since district court’s expressions the venireman’s misgivings of determination of the sixth amendment issue capital punishment about fell short of the unequivocal may on unwillingness remand render decision on the fifth penalty required by which is Wither superfluous, amendment claim we do not0 spoon Illinois, reach Finally, that issue. for reasons set 20 L.Ed.2d 776 For reasons set out IV, out in Part we affirm so much of the opinion, in Part II of this we hold that the judgment district court’s petition as denied state trial sentencing court’s instructions er relief based on ineffective assistance of were constitutionally inadequate, and we counsel. therefore reverse the federal district court’s judgment contrary. holding, So we II.

do Spivey’s not reach second and third chal lenges to his death sentence.1 sentencing phase trial, In the following jury arguments sides, grounds by

Petitioner also asserts three both relief from his conviction: that in jury: viola trial court instructed the Regarding propriety prosecuting Spivey’s appeal perilously brief comes close attorney’s argument during sentencing abandoning argument his fifth amendment phase, disposi by focusing and mindful that because of our on the sixth amendment exclusive- may ly Summary Argument nearly tion of this case the State initiate a second in the sentencing proceeding, impor exclusively Argument Only by we do note the in the itself. ensuring tance of the trial court’s in role brief reference the fifth amendment in a jury arguments argument remain relevant and fair. See footnote to his sixth amendment did Estelle, (5th petitioner abandoning Bruce v. 483 F.2d Cir. avoid his fifth and four- 1973), App. cert. denied 429 U.S. teenth amendment claim under Fed.Rule (1977), See, part 28(a)(4). g., L.Ed.2d overruled in Proc. Mfg. e. Harris v. Plastics grounds, Estelle, Co., Zapata (5th 1980). other 585 F.2d 617 F.2d 438 Cir. 1978). gentlemen, you you punishment Ladies have found eration. If fix his as guilty death, the defendant offense you designate writing must also your duty It now murder. deter- aggravating you circumstance which mine, law, prescribed by within the limits beyond find a reasonable doubt. imposed pun- penalty shall be agreed by Your must all verdict be reaching ishment for offense. members, your twelve of it must be in you this determination are authorized to indictment, writing, upon the entered consider all of the evidence received foreman, signed by your dated and Court, phases you open and both publication. returned in to Court for trial. You authorized to all consider begin your You retire and deliber- the facts and circumstances of the case. ations, you after have received the indict- State, every Under the laws of this ment and documented evidence adduced murder, person guilty of the offense of pre-sentence hearing, in the de- and then punished by peniten- shall be life in the penalty punishment termine tiary, or death electrocution. imposed shall this case. You must charge you you I that before would be beyond first consider find a reasona- fixing find a authorized to verdict a sen- aggravating ble doubt circum- by electrocution, you tence of death must stance, or happening the murder while statutory aggravating find evidence perpetration capital of another felo- circumstances, you as I will define to ny, robbery; armed robbery is a armed charge, in the later sufficient to authorize you capital felony, beyond must find that supreme penalty the of the law. a reasonable doubt. charge finding you statutory that a I exist, you If you find that to then shall aggravating only circumstance shall be writing, you so indicate de- in then will upon convincing your based evidence you termine whether or not will beyond mind a doubt the reasonable as to penalty, death your the then verdict one, existence of or of the factual condi- two; will be one jury “We the recom- tion in connection with the defendant’s penalty,” mend the death “We the perpetration you of acts for which have not penalty.” do recommend death the guilty. (Sic) found him your determination, That is a matter for Now, provides aggra- the law certain gentlemen. ladies and vating you may circumstances which con- You writing carry will have this in purpose. sider for this the If offense of you with you preparation out assist in murder was committed while the offend- your verdict. You retire at this engaged er was in the crime of another punishment time fix in this case. capital felony, capital in this the felony charged by charge is Petitioner State asserts did not robbery, given you circumstances, armed I have mitigating in mention or define charge, you have received definition apply did not instruct that it could robbery. of armed mitigation, principles of and did not identi statutory fy particular you mitigating

The a instructions that circumstance authorized to consider be which there will submitted was evidence and which writing you your the jury Georgia in Spivey consid- well-founded in law.3 mitigating peti- Spi- 3. The circumstance to which treme mental or emotional disturbance.” State, 477, 478, 288, vey tioner refers is mental disturbance. v. 241 Ga. 246 S.E.2d presented during guilt mitigating defense 290 effect of such a trial, phase, attorney Georgia and his on relied mental condition is well-founded law; Spivey’s jury argument Georgia Supreme requires mental condition in his Court review, phase. sentencing in the direct On to file in each case which the Supreme Georgia penalty report imposed Court of concluded that death which identi- eight circumstances, mitigating including was evidence . . . that would au- “[t]here fies jury to thorized the find that committed “The murder was while committed the defend- the murder under ex- while the influence of ant was under the influence of extreme mental

469 responsibility an instruction is violative of “constitutional tends such to tailor and eighth and fourteenth amendments. To apply its law in a manner that avoids the claim, we address this first determine what arbitrary capricious infliction of the mitigation, any, if instructions penalty.” Godfrey Georgia, death v. 446 eighth require and fourteenth amendments 428, 420, 1759, 1764, 100 U.S. S.Ct. 64 sentencing charge, in a and then test the (1980) (plurality opinion). L.Ed.2d 398 See charge case that standard. 188-195, Gregg Georgia, 428 U.S. 96 Accordingly, at 2932-2936. consti S.Ct. Supreme The United States Court requires tution that a state death sentenc penalty Georgia struck down the death ing procedure particularized “allow the thirty-nine con and in other states in Furman v. 238, 2726, Georgia, aspects 408 U.S. 92 S.Ct. 33 sideration of relevant of the charac (1972), holding L.Ed.2d 346 ter and record of each convicted defendant penalty imposed could under a sen imposition before the on him of a sentence tencing procedure that created a substantial Carolina, of death.” Woodson v. North 428 risk that it would be inflicted in an arbi 303, 96 at 2991. U.S. S.Ct. trary capricious Gregg manner. See Woodson, Elaborating on plurality 153, 188, 2909, Georgia, 428 U.S. S.Ct. Supreme Court has held that “the 2932, (1976) (plurality opin 49 L.Ed.2d 859 Eighth and Fourteenth Amendments re ion). Furman, Georgia After enacted quire sentencer, in all but penalty new death statute. The case,4 capital preclud rarest kind of not be Court reviewed that statute and the stat considering mitigating factor, ed from as a Gregg v. utes of four other states in 1976. any aspect of a defendant’s character or 153, 2909, Georgia, 428 U.S. S.Ct. record, of the circumstances of the (1976)(plurality opinion); L.Ed.2d 859 Prof proffers offense that the defendant as a Florida, fitt v. basis for a sentence less than death.” Lock (1976) (plurality opinion); 49 L.Ed.2d 913 Ohio, 586, 604, ett v. 438 U.S. 98 S.Ct. Texas, Jurek v. 428 U.S. (1978) (plurality 57 L.Ed.2d 973 (1976) (plurality opinion); 49 L.Ed.2d opinion); Ohio, Bell v. 438 U.S. Carolina, Woodson v. North (1978) S.Ct. 57 L.Ed.2d 1010 (1976) (plurality 944 S.Ct. L.Ed.2d (plurality opinion). Lockett and Bell held Louisiana, opinion); v. Roberts penalty unconstitutional the Ohio death (1976) 49 L.Ed.2d 974 statute, cases, precluded (plurality opinion). which the sentencer from In those the considering mitigating certain of Court established that a death sentence sorts circ imposed could be if a state fulfilled its umstances.5 argues iting Watkins, Washington or emotional disturbance.” Petitioner instruction. where, here, mitigating (5th 1981) (dictum). a as evidence of F.2d Cir. circumstance which is well-founded in state trial, presented sentencing law is at the instruc- opinion 4. The Court reserved on whether a identify tion must that circumstance. The mandatory might permissi- death sentence be only State contends that such an not enumer- homicide, ble to deter certain as a kinds of such mitigating ation of circumstances is not consti- prisoner serving murder a a life sentence. tutionally compelled, but also that an enumer- No such homicide is in issue here. open charge ation to would the instruction the impermissibly jury’s that it restricted the con- aggravated a verdict of Once murder with factors, sideration of unidentified even if the returned, specifications had the stat- been Ohio jury trial court also instructed the it was autho- required ute the to a death sen- rized to consider nonenumerated circumstanc- “considering tence unless after the nature and es. We do not decide in this case whether the of the offense” the circumstances and defend- requires federal constitution a trial court character, “history, condition,” ant’s and identify particular mitigating circumstances by preponderance found a of the evidence that jury Regarding its instructions. the State’s (1) the victim of the offense had induced or however, concern, panel we note that another it, unlikely facilitated that it was that the principle, though approved of this court has offender would have committed the offense but require, statutory it did not mitigating enumeration duress, for the fact that he or she “was under circumstances followed a nonlim- giv- sentencing majority Supreme instruction that was six-member Court directly Spivey’sjury preclude imposed by en did a would vacate death sentence a considering mitigating from considering mitigat sentencer barred from wished; it circumstance whatever circumstances,6 ing we reasoned: charged jurors they were “autho- requirement This constitutional to allow rized to consider all facts and circum- mitigating consideration of circumstances case,” nothing stances of the and said which course, importance, would have no if jury’s limit could construed to sentencing jury is unaware of what it of mitigating sideration circumstances. reaching consider in its decision. Thus, this is not within the case narrow Bell, then, "Weread Lockett and to man- holding of Lockett or Bell. the judge clearly date that instruct However, this Circuit has read Lockett mitigating about circumstances and require Bell clear on instructions option against to recommend death. mitigation option and the to recommend Id. 448.7 against Stynchcombe, death. Chenault v. Chenault, requirement we treated the 1978), F.2d appeal was an of clear on mitigation instructions por- from district denial of certain court’s option against to recommend as a corpus petition. tions of a habeas We first corollary prohibition to Lockett’s against court, judgment affirmed the of the district preclude instructions which consideration then peti- addressed an issue which mitigating sup- circumstances. Antecedent tioner for during raised the first time oral port requirement for the constitutional argument, namely, whether sentencing clear capital instructions in judge’s cases the jury instructions to about miti- derives from the gating Court’s option earlier circumstances to rec- eighth mercy conclusion that the constitutionally ommend were and fourteenth inade- quate. require amendments order to decide “where whether chal- discretion lenge sentencing sentencing body instructions to is afforded on a had matter petitioner grave be remanded so that could ex- so as the determination whether a remedies, haust his state required we were spared, human life should be taken or the challenge permit- determine whether suitably discretion must be directed and petitioner ted the to claim a substantial limited so wholly as minimize the risk of denial of a right, federal constitutional arbitrary capricious Gregg action.” which permit- was the state’s standard Georgia, 428 U.S. at ting collateral attack. 581 F.2d at 447. 2932: Bell,

In view provision of Lockett and we concluded of relevant information [T]he challenge procedural implicate did under fair rules not alone of a guarantee substantial denial federal constitu- sufficient the that informa- right. Having tional Id. properly calculated that a tion will imposi- be used in the coercion, strong provocation,” (3) Brennan, or or the tice who did not hear Lockett but primarily product offense was the of- consistently who maintained that the death psychosis deficiency. fender’s or mental Ohio penalty was unconstitutional. The recent res- (1975 2929.03-2929.04(B) Repl. Rev.Code §§ ignation aggre- of Justice Stewart reduces the Vol.) Thus, found, as the Court considerations five, gation majority but a remains. comparatively aof defendant’s minor role in offense, age, generally the or would be not questions authority State the of Chenault permitted sentencing to affect the decision. since we did not there reach the the merits of Lockett, 438 U.S. at 98 S.Ct. at 2967. out, Spivey points claim. But as position sentencing Chenault’s instructions majority 6. The six-member consisted of the dictum; is more than mere in order to that hold plurality, Marshall, four-man Lockett Justice challenge proper- the to the instruction was not appeared suggested who to have that the sen- us, ly necessarily before we decided that unique tencer be must allowed to consider “the right every defendant,” substantial federal constitutional im- individuality criminal plicated. Lockett, (Mar- 438 U.S. at at S.Ct. shall, J., concurring judgment), in the and Jus- punishment,

tion of especially particularized if sentenc- tion of the circumstances of ing performed by jury. is Since the the individual offense and the individual jury little, members of a will have had if Texas, Jurek v. offender ...” any, previous experience sentencing, 274, 96 cases, S.Ct. at 2957. In most this they unlikely are dealing be skilled in will judge mean that the clearly must and they given.... with the information explicitly jury instruct the mitigating about problem To the extent this is inher- option circumstances and the to recommend jury sentencing, ent it not be death; against so, in order to do the totally clear, correctible. It seems how- normally will jury tell the mitigat what a ever, problem will be alleviated ing circumstance is8 and what its function jury given guidance if the is regarding jury’s is in the sentencing deliberations. the factors about the crime and the de- instances, some it possible will be for the State, fendant representing or- judge clearly to instruct jury so as to ganized society, particularly deems rele- guide and focus its consideration vant sentencing to the decision.... particularized circumstances of the individ quite simply It is a hallmark of our ual offense and the individual offender legal system juries carefully be without explicitly defining adequately guided in their nature and deliberations. function mitigating if, circumstances: Id. 96 S.Ct. at 2934. example, sentencing the state procedure Lockett, Gregg, light permits jury impose penal Chenault, eighth we hold that and four ty only giving specified after answers require teenth amendments that when a special interrogatories, and if those inter jury charged with the decision whether to rogatories satisfactorily focus jury’s impose penalty, the death jury must consideration on the circumstances of the receive only clear instructions which not do offender, offense and the requisite then the preclude mitigating consideration factors, Lockett, guidance is “guid[e] explicit but which achieved also without discus jury’s objective mitigating eonsidera- sion of focu[s] circumstances.10 require offense, 8. The constitution capital does not the use of ant was convicted of a the trial “mitigating long the words separate circumstances.” So sentencing pro- court must conduct a clearly instruction ceeding communicates that before the same tried the recognizes the law the existence of guilt. circum- issue of penalty, In order to the death justify stances which do not or excuse had to answer in the affirma- offense, which, mercy, may but in fairness or questions: tive three extenuating reducing be considered as (1) whether the conduct of the defendant degree culpability punishment, of moral that caused the death of the deceased was 584, 590-91, Georgia, Coker v. deliberately committed and with the reasona- portion 53 L.Ed.2d expectation ble the death of the de- requirement the constitutional is satisfied. result; ceased or another would (2) probability whether there is a that the recognize 9. We that when we announced in defendant would commit criminal acts of vio- lence that would constitute a Chenault that we read Lockett and Beil to man- continuing mitigating date clear instructions about circum- society; threat to option against stances and the to recommend evidence, if raised whether the death, might we did not intimate that there killing conduct of the defendant the de- exceptions requirement. partic- to this But the response ceased was unreasonable in question Chenault, pp. ular before us in see provocation, any, by if the deceased. thorough 469-471, supra, for a did not call Crim.Proc., 37.071(b) (Supp. Tex.Code Art. exposition eighth of and fourteenth amendment 1975-1976). requirements. Furthermore, holding today our Despite concerning mitigating its silence cir- ensuring is harmonious with Chenault in that cumstances, petition- the statute survived the sentencing jury suitably guided the and fo- eighth er’s and fourteenth amendment attack capital cused in all cases. plurality Supreme because a of the Court con- Texas, 262, 2950, Ap- 10. Jurek v. cluded that 428 U.S. 96 S.Ct. the Texas Court of Criminal (1976) (plurality opinion) peals broadly interpreted ques- 49 L.Ed.2d 929 had is il- the second procedure. despite permit lustrative of such a The Texas its facial narrowness —to tion — penalty provided mitigating death statute that if a defend- the sentencer to consider whatever 472 case, penalty, sen your

In this the court’s verdict will one then be tencing were devoted jury instructions11 almost of two: “We the the recommend aggravating of exclusively jury to a discussion or the penalty” death “We do not their function in deter penalty”. circumstances and death recommend the That a mining only determination, The instructions your sentence. matter for ladies and alluded, implicitly however or indi which gentlemen. circumstances,

rectly, mitigating to or This is not the clear which instruction fairly provide guid could be said to which guides jury’s the focuses consideration juror presence ance has found the to who which we the requires. hold constitution aggravating circumstance of an and seeks any Neither do the in instructions sense proceed, on to were: direction how mitigat the describe nature and function of determination, reaching you this circumstances, ing jury nor the guided was consider the authorized to all evidence mitigating toward the consideration of cir Court, by you open in received and both by special interrogatories. cumstances The phases of the trial. You are authorized charge begin does not to communicate to the to consider all facts and circumstanc- jury recognizes the that the law exist the the es of case. which, of ence facts or circumstances though justifying excusing not or the of fense, you [aggravating properly If find that be considered deter circum- in exist, mining you to then to impose shall so indicate whether the sent death stance] writing, you in then will ence.12 determine Petitioner’s death sentence must (cid:127) you whether or will not the death be set aside. might circumstances the defendant be able to 439 U.S. 642, S.Ct. 58 L.Ed.2d 699 sentencing show, and (1978). that the Texas procedure guided jury’s and focused the appropriately The state habeas an court, unpublished considerations. U.S. at S.Ct. understood the opinion, state Court Supreme 2957. “held that trial court did not commit In order of satisfy Lockett, course, such though error even it failed to with comply jury could not procedure preclude from charge mitigat- direction of the statute and on considering mitigating as a factor any aspect ing circumstances.” The state habeas court the defendant’s character or record or circum- doubted that the state death statute penalty stances of the that offense the defendant prof- could withstand constitutional if the scrutiny fered as a basis for sentence less than death. requiring mitigating on provision instruction See pp. supra. circumstances construed as mandato- challenges jury instructions that court ry. habeas nonetheless denied Spi- given were his and not con facial because it vey’s petition felt fol- compelled Georgia death stat stitutionality penalty Georgia low “what law to be on appears ute. That statute provides in relevant part, issue.” this consider, “. . . shall or he shall in There is no doubt but that chal- Spivey may jury clude his instructions to the for it to lenge jury attacking instructions without mitigating ag consider, circumstances the facial constitutionality penalty gravating circumstances otherwise authorized Washington statute. See Watkins, v. F.2d 27-2534.1(b)(1) law ...” Ga.Code by § Ann. at 1373-74. (1979). On direct appeal, Court Georgia rejected argument first Spivey’s reasoning was adequately single the statute out court required mitigation, instructed the district at court mitigating specific circumstances and identify tached to the fact importance sentencing them instruction, and then argued lawyer it strenuously held statute was satisfied in mitigating should consider certain circumstanc struction that would communicate to a reason determining “arguments es in sentence. But juror able that he should consider all the facts counsel cannot substitute instructions and circumstances case presented the court.” during Taylor Kentucky, both of the trial and phases 56 L.Ed.2d 468 could recommend life even if he 488 — imprisonment (1978). also, aggravating See Carter v. one or Kentucky,-U.S. found more the statutory n.20, circumstances exist. 304 and Finally, charge found that also, met that test. See Carter v. Kentucky, State, 288, denied, Ga. 246 S.E.2d cert. nally, Dr. Smith Spivey

III. testified that had a sociopathic personality and that a dis- such approximately two The record shows that not insanity. order is trial, ap- Spivey’s Spivey’s months before counsel, Cain, for a pointed a motion filed petition, Spivey his federal habeas al- “physical, neurological psychiatric and ex- leged judge Spivey that the trial did not tell and of the amination determination mental any at or Cain time that he to intended April of the Defendant.” On condition Spivey’s sanity of order an examination 1977, hearing represented a at which Cain of along the time the crime exami- with an Spivey Spivey was held on motion. trial; competency of his nation for that motion, judge the informed that Cain’s to nothing Spivey’s in the showed record that objected, Spivey strongly which a violated had sanity put been in issue at time the promise by any to make such Cain not order; April judge the that the nonethe- consulting The Spivey. motion without a sanity less ordered examination well as as regard- judge replied obliged, that he was examination; competency a at the and that motion, any inquire less to into the de- examination, time the order Spivey and competency stand the fendant’s trial. At counsel, was without since he was not hearing, Spivey end that announced speaking to Cain attorney. other again he would never the case with discuss petition concluded that re- order attorney. that he Cain and wanted another quiring Spivey pre-trial to submit to a sani- April On the trial ordered examination, ty entered without notice to “physical, neurological psychiatric ex- Spivey at a unrepresent- time when he was amination, and determination of the mental counsel, deprived Spivey liberty ed of his De- Spivey condition Ronald Keith on process due privilege without and of his alleged cember date of the [the against Despite pe- self-incrimination. and further to mental determine his crime] obscure tition’s invocation of the sixth capacity at this time na- to understand the intermingling amendment and its inartful against charges ture him and to claims, of fifth sixth amendment we attorney assist his defense of his petition alleging treat the as that exam- case.” ination offended both fifth and the trial, Smith, Spivey Dr. At who examined amendments, sixth well four- as the order, pursuant April testified for teenth amendment. Spivey’s insanity in rebuttal State relief, prayer petitioner prayed In his Dr. saw defense. Smith testified that he hearing that the district conduct court Spivey April May times in four proof might concerning which be offered 2, May May 6, physical and that allegations petition. In its order examinations, examinations, neurological denying relief, habeas district court testing psychological were adminis- as a law cluded matter of that no evidentia- tered. Dr. Smith testified he found ry hearing Spivey was warranted because nothing physically wrong with Spivey, hearing had had full and fair state Spivey capacity had sufficient mental proceedings. distinguish right wrong, between Turning Spivey’s contention he was was sane and that there no indica- psychiatric had violated his mentally examination incompetent, tion that was ever right process privilege to due law and his and that examinations had not revealed self-incrimination, against district any physical abnormality or behavioral repre- first concluded that had support been would claim that he had sented counsel at the time the trial court hypothetical to a blackouts. answer directing entered its order that an examina- question, opined person Dr. that a Smith The district court’s perform goal-di- could black out and tion be conducted. alleged opinion shows this conclusion was rected activities solely April performed night on the of the crime. Fi- based on the fact that 474 deprived J. he

order identifies William Schloth as was of the to chance consult attorney.13 defendant’s beforehand, respond with counsel to so as examination, intelligently to the and was petitioner’s The district court then found deprived of the chance to on insist safe- merit, fifth amendment claim to be without guards for the conduct of the examination. citing holding several cases that the trial least, Spivey urges,' At authority the district court inquire has inherent to into competence an granted evidentiary accused’s to stand trial14 should have an hearing holding and one case court ordered on this issue. psychiatric sanity to examination determine The district did not have bene at the time of the did offense not violate 454, Smith, fit Estelle v. 451 U.S. 101 privilege against the accused’s self-incrimin 1866, S.Ct. 68 L.Ed.2d 359 when it ation.15 addressed fifth and sixth appeal, Spivey On contends that it was Smith, amendment claims. a Texas trial improper compel for the trial court to psychiatric court had ordered a examination

sanity objection, examination his with over competency to determine the stand out purpose notice him of the of a man who had been indicted for murder exam, during a time after when indictment against seeking whom State was represented by he counsel, was not penalty. represent the death The man was insanity before he had raised an defense. adjudged competent ed counsel. was He Although Spivey’s presents brief fifth subsequently was jury in a convicted amendment claim as an inchoate aftert For trial. the death hought,16 we take his claim to be his penalty, required, among Texas law other against privilege self-incrimination was vio things, that the find that there was a court-appointed psychiatrist, lated when probability that the defendant would com advising Spivey without that he had the mit future acts of criminal violence that right to remain silent and that state continuing would constitute a threat to soci against ment he made could be used him at ety. sentencing proceeding, At the psy trial, notifying pur and without him of the chiatrist who had conducted the court-or pose examination, interrogated Spi dered examination testified that the de vey custody while he was in before sociopath fendant was a severe whose vio had manifested an intention to assert lent surely behavior would continue. The defense, insanity and then testified for the jury imposed the death sentence. State in rebuttal de fense. opinion In an Burger, Chief Justice Court held that the claim,

As to his sixth introduc amendment argues into represented court-appointed that he tion evidence of the was not when psychiatric psychiatrist’s testimony prove examination was ordered or future representation conducted that without dangerousness,17 based on information 836, 13. The (1966); district court’s entire discussion of this 15 L.Ed.2d 815 Smith v. Es S.Ct. point “Contrary telle, F.Supp. (N.D.Tex.1977), was: to Petitioner’s conten- 445 647 aff'd 602 represented by tions that he was not (5th Cir.1979), aff’d, 454, counsel at 694 F.2d U.S. 451 the time the 1866, aforementioned order ren- 68 L.Ed.2d 359 dered, an examination order reveals that counsel, Petitioner’s second defense liam J. Wil- Mr. Cohen, 15. United States v. 43 F.2d Schloth, Thus, therein. named 1976) represented record reveals that Petitioner was by new counsel at the time court entered its n.2, supra. 16. See directing psychiatric order that a examination be had.” holding per- 17. the fifth amendment State, guilt even tained established, after the defendant’s had Presnell v. been 243 S.E.2d 496 Ga. part emphasized grounds, rev’d in the court other (1978); Drope proving danger- State bore the L.Ed.2d 207 burden future S.Ct. Missouri, penalty. 420 U.S. 95 ousness in 43 L.Ed.2d order to secure the death (1975); Robinson, Pate v. 101 S.Ct. at 1874-1875. interrogation gleaned from a the prohibited an of defend sixth amendment the intro- custody requested in had neither psychiatrist’s ant who duction of the testimony; he psychiatric the examination nor introduced would not have reached the fifth amend- issue,18 prior 1879, (Stewart, evidence on that without a J., ment Id. issue. at warning to the defendant that he had the in curring judgment). Similarly, the Jus- right any remain silent and that state Rehnquist agreed tice the defendant’s against he made could be used him in ment attorneys were be entitled to made aware sentencing proceeding, rule the violated the psychiatrist’s of the activities involving Arizona, 436, Miranda v. 384 86 of U.S. prepare their client and to advise and the 1602, Smith, (1966). 16 694 L.Ed.2d S.Ct. accordingly; client he too would not have 1866, 466-470, 101 454, 451 Id., the fifth reached amendment issue. See, 68 L.Ed.2d 359. Battie v. J., (Rehnquist, concurring judgment). the Estelle, 655 F.2d 697. at Although a majority Supreme of the held that the exami- Court Court in Smith the reached fifth amend procedure nation also violated the defend- issue,19 ment the require ease does not us to right ant’s sixth amendment to counsel. if appeal do so here the can be resolved on right psychiatrist That attached when the first, grounds. then, other We turn Spi examined the and the defendant interview vey’s sixth amendment claim. proved stage” pro- to be a “critical of the Spivey asserts that since the 470, April

ceedings. Id. 101 S.Ct. at April 15 order and the 18 examination oc attorneys the Since defendant’s received no during curred the Spivey’s hiatus between psychiatric notice the examination counsel, appointed dismissal of his first encompass would the issue of dan- future Cain, the assumption by and gerousness, their client was his denied the as- second counsel, Schloth, appointed signifi- of “in of making responsi sistance counsel the bility in the cant decision to submit ex- Smith’s sixth whether amendment requires holding what psychia- amination and to end the that his conviction be set findings employed.” predicate trist’s could be Id. aside. If factual of Stewart, Powell, accurate, joined by Justice is Justice assertion then so is his conclu sion; agreed required since examination took if was to submit to counsel, place without previous notice defendant’s the examination without notice to 67, standing (1978); Bryant State, We have Smith as for viewed 243 S.E.2d 510 149 psychiatric proposition (1979). psycho- Ga.App. that when a or 256 S.E.2d 52 logical is “used examination to determine open possibility The court left culpability when responsibility or defendant’s for the insanity him, a defendant asserts the defense charged and against crimes the Fifth Amend- psychiatric testimony, may introduces privilege ment is involved because the use of sanity required to submit ato examination con- may examination in this context [the] assist by psychiatrist. prosecution’s ducted establishing imposition State in the basis for 466, n.10, U.S. at 465 Estelle, S.Ct. at 1874 punishment.” criminal Battie v. Estelle, n.10. When, See Battie v. 1981). F.2d F.2d as in question Spivey’s case, at 701-02. We do not decide this psychiatric evidence is used to today, nor do we sanity address whether a constitu- establish a defendant’s offense, at the time of the significant when, tionally distinction arises then whether that evidence “assists here, petitioner alleges establishing necessary predi- the defendant is first State in by court-appointed psychiatrist punishment may examined imposing criminal cate insanity (1) an later asserts defense. turn on two whether factors: the State proving the defendant bears burden of in- sanity; proof Burger’s opinion joined whether 19. Chief Justice was Stevens, proof Brennan, White, inconsistent with the elements Justices charged against joined offense 701, the accused”. Id. at Blackmun. Justice Marshall in all of the Georgia appears opinion, including n. 21. The to be law Chief Justice’s the fifth analysis, except suggestion that ing, defendant bears the burden show- amendment evidence, preponderance penalty that the death ever be constitu- mentally responsible tionally imposed. he was not time of at the 101 S.Ct. 451 U.S. State, (Marshall, alleged J., concurring part). crime. See Potts v. 241 Ga. at 1879 counsel, assertions, attorney, either he had no answer to the because we alleges, petition or because he evidentiary as his held hearing was re- represented attorney but received his no quired teachings under Townsend v. order, April then this case notice is Sain, 9 L.Ed.2d Spivey’s sixth within Smith and amendment Smith, psychi attack succeeds.20 As in applied principle Sloan the well-settled atric examination here was conducted after underlying that when the facts a habeas adversary proceedings instituted, had been corpus challenge dispute, are in Spivey’s Spivey as had been indicted. sixth evidentiary must an hearing hold if the right amendment counsel had attached fully factual was fairly issue not devel when Dr. examined him and Smith their oped Sain, at the state level. Townsend proved stage interview to be a critical of 293, 745, 83 9 L.Ed.2d 770 petitioner. proceedings against also, Hopper, See Bloodworth v. 539 rejected petitioner’s The district court (5th 1976); Beto, F.2d 1382 Cir. Breen v. sixth amendment claim on the basis of its (5th 1970); 421 Hayes F.2d 945 Cir. v. Hol finding Spivey represented factual that was man, (5th Here, 1965). 346 F.2d 991 Cir. by starting April Schloth 15. We hold the primary, central of issue historical finding this of fact was based on an fact22 underlying petitioner’s sixth amend incomplete and indeterminative record and challenge ment is whether he inwas fact that the district court should have conduct- represented April at the time of the hearing evidentiary ed an order devel- April order and the 18 examination.23 That op proper foundation for a factual find- developed issue was not at the state level ing. Spivey’s and the record does not answer finding The district court’s was based assertions. The district court in re erred solely on April the fact that 15 order fusing evidentiary hearing. to conduct an Spivey’s identified J. William Schloth We will remand the case to the district attorney.21 In the face of alle evidentiary an hearing court for on the gation unrepresented, that he was this was sixth amendment issue.24 inadequate an foundation for decision. On point is Wainwright, Sloan v. F.2d IV. 1972) (per curiam), appeal an from support of his contention was corpus denial of habeas relief without counsel, denied evidentiary hearing. the effective assistance of petition an There petitioner alleged barrage allegations launches er of while record indicated attacking virtually, every aspect attorney appointed that an had his at been of him, represent torneys’ performance.25 reject he was We denied effective this challenge assistance of sixth Spivey’s counsel because in fact he amendment had con viction, finding not with any attorney allega communicated underlying attorney no had worked on his tions behalf. Con either been rendered our moot cluding provide the record did opinion, not decision in Part II of this not Spivey yet presented present 20. has a third variation: 23. Whether counsel was at exami- represented, that even if he was neither he nor nation itself is not an issue this case. See provided Smith, psy- counsel was with notice that the Estelle v. 451 U.S. at n. chiatric examination would be determine n. S.Ct. at 14. sanity competency. light as well as unambiguous judge’s April content the trial Thus, dowe not reach the fifth amendment order, position supra, issue, pp. thereby ques- deciding see avoid such untenable. 17, supra, tions as those intimated in note 18, supra. note n.13, supra. 21. See text at represented was at trial attor- two Sain, neys, Byars; suggests 22. See Townsend v. n. Schloth and the record S.Ct., 6.n. that Schloth functioned as lead counsel. correctly before us He properly or were decided defense. examined at even Spivey by greater against length the district court. Spivey, who testified about childhood, his history, troubled his medical per- Petitioner contends that counsel’s diagnoses physicians who treated during sentencing proceeding formance him, history blacking and his out and bankrupt in that counsel offered was no committing upset. acts when violent He evidence, mitigating appro- failed to make acquaintance examined an who objections priate prosecutor’s closing following episodes Spi- testified that violent argument, presented sparse and himself vey was unable to recall what he had done. argument closing ineffective the sen- Finally, closing argument counsel’s tencing phase. Given our decision in Part guilt phase of focused on in- opinion Spivey’s penal- II of this sanity defense. stand, ty cannot consideration these con- Thus, superfluous. would be tentions we do Spivey nonetheless maintains that coun- address them. presentation sel’s the insanity defense complaint ineffective. chief Petitioner contends further that his appears to attorney be that his did not call attorney inadequate trial an conducted voir who, Spivey certain alleges, witnesses because he dire did not sensitize the would insanity have buttressed his defense. present the case would and that he deliv charge This was raised the state habeas sparse a closing argu ered and ineffective proceeding, where the court concluded that guilt phase ment in the of the trial. Since Spivey showing had made no as to what arguments petitioner makes these for the testimony might these do, given witnesses appeal, time on not reach first we them. any would have established defense for Estelle, (5th Easter v. F.2d See him. We conclude the district court 1980); Alabama, Messelt v. Cir. 595 F.2d properly relied on the state habeas court’s (5th 1979), Cir. and cases cited factual determination this issue. therein. Finally, Petitioner contends that The corpus federal habeas statute attorney effectively his did not investi provides that state when a court has amade gate, prepare, present Spivey’s insanity hearing determination a after on the merits considering defense. Before the merits of issue, of a factual that determination shall contention, we this note constitu presumed by a correct federal court on tional standard for effective assistance of petitioner habeas unless the is able to show is: counsel existence of one seven enumerated counsel, not errorless and not counsel circumstances, such as a defect in the state judged hindsight, by ineffective but coun- fact-finding procedure that in rendered it reasonably likely sel to render ren- adequate hearing, to afford full and fair dering reasonably effective assistance. or unless the factual determination is not record; fairly supported Hopper, (5th Gaines F.2d petitioner presumption can overcome 1978), Estelle, quoting Herring Cir. only by establishing by correctness convinc 1974). F.2d ing evidence that the state factual determi petitioner’s suggestion record belies 2254(d). nation was erroneous. 28 U.S.C. § counsel nothing” “stood still and did Here, the insanity ques- about defense. Counsel state habeas found that prospective jurors during voir dire had not carried his burden of show tioned defense, insanity ing their about views on the how the uncalled witnesses would have helped then opening indicated in his statement him. The record shows that insanity finding hearing present- peti defense would be followed a at which length psychol- every opportunity present He tioner had evi ed. examined some supported support ogist testimony whose dence in his contentions.26 No suggested argument oral there, habeas court his who was that attorney showing the state was not for his his trial inadequate attorney, ineffectively repre- reason petitioner contention was made in the district court received the effective assistance proceeding that the had state been less than of counsel. way

full and fair or in other did not V.

comport with the conditions of 28 U.S.C. presumption 2254 to raise the of correct § We affirm so much of the district court’s Finally, ness. the state court’s determina judgment petitioner as held that was not fairly supported by tion is the record. deprived of the effective assistance of coun- Therefore, finding the state court’s was sel. We vacate so much of the district presumptively correct and the district court judgment court’s as held that the mental justified holding that counsel was status petition- examination did not violate not shown ineffective his failure to call rights fifth, sixth, er’s under the and four- showing witnesses when there was no what teenth amendments and remand for an evi- they say.27 would dentiary hearing peti- to determine whether represented by tioner was counsel at the dispose We are able to more sum April time-of the 15 order and the subse- marily allegations other quent Having examination. req- made the support of his contention that counsel inef findings, uisite factual the district court fectively prepared presented the insani will rule on the sixth amendment claim ty defense. Petitioner asserts that because consistent opinion. with Part III of this abrupt of counsel’s shift after the voir addition, the district court will reconsider dire from a defense based on diabetes ato petitioner’s fifth light amendment claim in psychiatry, defense based jury primed Battie, supra. of Smith and In order to for evidence about a diabetic defendant in expedite disposition the final of this stead heard an defense. This as jurisdiction we will retain and instruct the simply supported by sertion is not the rec ord, certify district court to findings its jurors and the ques which shows that the were record of its proceedings on tioned as much or remand to us more their about views forty-five within days insanity of the they defense than issuance of were opinion this so knowledge about their that we of diabetes.28 review the district judgment. court’s Finally, petitioner asserts that counsel did adequately investigate not We reverse possible so much of the de- district court’s fense judgment mixing tranquil- had been as held that the state trial court’s izers day sentencing and alcohol on the of the offense. instructions were constitutional- ly Even if counsel inadequately investigate adequate. did petitioner’s If fifth and sixth defense, this finding challenges which we do not amendment to his conviction ul- here, make fail, the, we would light timately hold that in then we will direct district the constitutional standard for effective as- court to issue providing its writ for the counsel, supra, pp. see sistance of Georgia state of to determine within a rea- reasonably light of effective and in counsel’s sonable time whether to conduct a new presentation defense, of the sentencing proceeding pro- in the manner district court finding did not err in by that the vided state law or to vacate petitioner conten- Since raises this sented him. had not shown that the witnesses would have prop- appeal, it is not provide tion for the first time on probative been able to evidence. 476-477, supra. pp. erly us. See before Furthermore, questions about diabetes typically (“Are you asked in the actually voir dire that “the found The district court anyone your family anyone testify diabetic? Is at his Petitioner desired witnesses you you provide are close to a diabetic? Do been able to know would not have trial words, anything glucose probative the find- about a In these tolerance evidence.” test? Do finding you ing goes anything behavior, state court’s further than the know about diabetic However, justifies. react?”) likely and than the record did how diabetics would not clearly encompasses finding suggested court’s going district that a diabetes defense was finding petitioner justified permissible presented. my opinion, simple sentence and a sentence less than terms. In Mr. in accordance with state law.29 death received a fair trial and has been found aggravated guilty heinous crimes. If part; AFFIRMED in VACATED and penalty constitutional, statutes are it part; part. REMANDED in REVERSED in duty regard- is our sworn to enforce them personal feelings. our by less of As stated DYER, Judge, Circuit concurs. Rehnquist Justice in his dissent in Wain- FAY, DYER, with Judge, Circuit whom wright Spenkelink, v. U.S. 901 Judge, joins, specially concurring: Circuit 60 L.Ed.2d Tjoflat Judge accurately sets forth repeated “Constant frustration of the opinions Court Unit- State’s lawful action such a situation is dealing ed States with state statutes allow- contrary underlying assumptions ing penalty appropriate the death system.” our federal mitigating sideration circumstances. Bell, with along opinion Lockett and our

Chenault, require instructions which do

preclude mitigating consideration of factors objective

and which allow consideration particularized circumstances of the indi-

vidual offense and the individual offender. however, my opinion, this does not re-

quire judge specifically trial each list FAKES, INC., FANTASTIC every mitigating conceivable circum- Plaintiff-Appellant, may suggest stance that dur- counsel either But, ing appeal. or on trial we are bound Washington Watkins, 655 F.2d 1346 INTERNATIONAL, INC., PICKWICK 1981), until unless and it is altered Defendant-Appellee. Judge the en banc As court. Coleman No. 80-7294.

points Washington, out in his dissent is damned if he Appeals, does United States Court of damned if doesn’t. as in Fifth Circuit.* Washington, defense counsel was allowed to BUnit argue anything everything Nov. important mitigating. sidered both instances, juries were told to consider

all of the evidence —all the circumstanc- aggravating mitigating. This

es— should be sufficient. issue, addition, others, along with presented

has twice been rejected.

Court and is no It wonder our losing judicial proc-

citizens are faith in the Capital unique. respon-

ess. cases are attorneys

sibilities of courts and the

awesome. Fairness to both the defendants society demands all courts set requirements

forth the rules and in clear Smith, 349, 362, 29. See Estelle v. 97 S.Ct. 51 L.Ed.2d (“the (1977) opinion), (plurality state is free to proceedings further conduct inconsistent * Florida, 9(1) opinion.”); Former Fifth Circuit Section of Public with this Gardner Law 96-452 —October

Case Details

Case Name: Ronald K. Spivey v. Walter Zant, Warden, Georgia Diagnostic and Classification Center

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 16, 1981

Citation: 661 F.2d 464

Docket Number: 80-7243

Court Abbreviation: 5th Cir.