Opinion
3-93-CV-329-G
April 17, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed on January 2, 2001, the subject cause has previously been referred to the United States Magistrate Judge for hearing and recommendation. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Factual Background: Previously the District Court entered its judgment denying Lewis's § 2254 petition collaterally attacking his capital murder conviction in which he was sentenced to death. Petitioner appealed the District Court's order and on September 13, 2000, the Fifth Circuit affirmed the judgment. Lewis v. Johnson, No 96-10616 (unpublished opinion). Upon his petition for rehearing the Fifth Circuit panel issued aper curiam order, which in pertinent part vacated section II.C. its prior opinion and remanded "Lewis's punishment phase ineffective assistance of counsel claims to the District Court for an evidentiary hearing solely on those claims." No. 96-10616, per curiam order filed on December 21, 2000.
The District Court in turn referred the issues to the undersigned magistrate judge for an evidentiary hearing which was held on November 27 and 28, 2001. At the hearing Petitioner Lewis was present together with his appointed counsel and the Respondent appeared through counsel, Assistant Attorneys General for the State of Texas. Both sides have filed post-hearing briefs. In addition to the testimony of the witnesses presented at the hearing and the exhibits offered and admitted at the hearing the magistrate judge has reviewed and considered pertinent testimony and documentary evidence presented in the course of Lewis's capital murder trial in 1987 in Cause No. F-86-73713-ULH.
In its order remanding the punishment phase claims for an evidentiary hearing, the Fifth Circuit noted that under the record before the court on appeal, the claims of Lewis had inescapable similarities to the facts recited in (Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) — a decision rendered subsequent to the District Court's judgment in the instant case. See No. 96-10616, On Petition for Panel Rehearing, filed December 21, 2000, at page 4. The court proceeded to identify claims asserted by Lewis which were analogous to the factors noted by the Supreme Court in Williams, to wit: (1) his counsel did not begin to prepare for the punishment phase until one week before trial began (Id. at page 6); (2) counsel called but one witness in the punishment phase and did not call character witnesses, fact witnesses and family members — who provided affidavits to Lewis's habeas counsel (some of whom were present at trial) — to testify to cognitive deficits and childhood abuse suffered by him (Id. at pages 7-8); (3) trial counsels' affidavits reflected an opinion that evidence of abuse at the punishment phase "was not relevant under the special issues in the Texas death penalty statute" (Id. at 10), and (4) despite the tentative grant of funds for a psychologist, trial counsel never had Lewis tested (page 10).
The court noted substantial mitigating evidence proffered by Lewis's habeas counsel, suggestive of impairments at least as severe as those addressed in Williams. Id. at 8 and n. 7.
The court nonetheless stated that ". . . we cannot reach the conclusion that Lewis's attorneys were deficient without further actual development" (Id. page 11). In the face of the materials developed by, Petitioner's habeas counsel the court — noting that no evidentiary hearing had been held at either the state or federal level (See n. 19 at page 14) — found that Lewis had met the requirements entitling him to an evidentiary hearing, citing Theriot v. Whitley, 18 F.3d 311, 315 (5th Cir. 1994) (Id. at page 13). Findings and Conclusions: Based upon the record of state court proceedings and the credible evidence presented in the course of the federal evidentiary hearing, the magistrate judge addresses the issues identified in the Fifth Circuit's order of remand in light of the factors described by the Supreme Court in (Terry) Williams.
Although the court "charge[d] the district to determine under the then-existing Texas death penalty statute, and in light of (Terry) Williams, whether Lewis was prejudiced by his counsel's failure to adequately investigate and present mitigation evidence in the punishment phase of his trial" (Emphasis added), the magistrate judge does not understand this language to constitute a judicial determination that the "cause" prong of the Strickland test has been met. In the event that the magistrate judge has misinterpreted the court's mandate, I am confident that the circuit court will correct it.
1. Counsels' failure to submit Lewis to psychological testing. The state court record reflects that trial counsel obtained a conditional grant for psychological testing which was never pursued.
At the evidentiary hearing Lewis presented no evidence, available to his trial attorney, which indicated the existence of any severe mental impairment. Michael Byck was one of Petitioner's trial attorneys. His practice is limited exclusively to criminal defense work. He was board certified in criminal law in 1977 and has tried eighteen or nineteen capital murder cases to conclusion (Evidentiary Hearing S.O.F. — [E.H.] 498-499). Although he was aware that defendant had had a deprived childhood, he was unaware that Lewis had suffered severe beatings nor did it appear that Lewis was a "candidate" for an insanity defense (Id. 508).
The trial record reflects that Dr. Linda Norton was reimbursed for reviewing medical records (S.O.F. at 3620-21, No. 86-73713-ULH).
There is nothing in the record to show that at the time of Lewis's trial there was any reason to believe that an insanity defense could be pursued. The decision not to seek a psychological evaluation was a deliberate decision made by Byck (Id. at 508-09; 533-534). Essentially Byck was fearful that any examination of Lewis while confined in the Dallas County Jail would be quickly known to the district attorney's office which would result in the prosecution calling Dr. James Grigson as an expert witness in the punishment phase. Based upon his own prior experience in defending capital murder cases in which Grigson testified, he was well aware of the persuasive power of Grigson's testimony. He took a calculated risk that if he did not pursue psychological testing for Lewis, the State would not call Grigson. The decision not to obtain psychological or psychiatric testing of Lewis was not inconsistent with the minimum objective standards imposed under the Sixth Amendment and this fact, coupled with the strong presumption of competence, foreclose a finding of cause. See Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.) cert. denied 528 U.S. 947, 120 S.Ct. 369 (1999).
None of the experts who appeared and testified at the evidentiary hearing expressed any opinion that Lewis had ever suffered a mental defect which might form a basis for an insanity plea.
Even without the personal observation of Dr. Grigson the United States Supreme Court recognized the persuasive effect which he had on juries, consistent with Mr. Byck's opinion. See Satterwhite v. Texas, 486 U.S. 249, 260-1, 108 S.Ct. 1792, 1799 (1988).
As the record reflects it was unclear until the prosecution rested whether Grigson would testify. See e.g. S.O.F. at 3599, 3783. In point of fact the prosecution presented no expert testimony. In the course of Mr. Byck's punishment phase closing argument he emphasized the absence of any expert or lay opinion testimony on the issue of future dangerousness in arguing that the State had not met its burden of proof on this issue. In addition he tried to defuse the State's "bad reputation testimony" by pointing out that it was only police officers who presented such testimony and that the State had not produced any witnesses, including neighbors or school officials to demonstrate that he was feared or had been a disruptive, discipline problem at school (S.O.F. 3919-22).
The rather controversial Dr. Grigson was a frequent expert witness called by the prosecution in capital cases tried in the State of Texas, prior to and at the time of Petitioner's trial. See e.g. Estelle v. Smith, 451 U.S. 454, 457-461, 101 S.Ct. 1866, 1870-1 (1981); Barefoot v. Estelle, 463 U.S. 880, 885, 103 S.Ct. 3383, 3390 (1983); Rogers v. State, 774 S.W.2d 247, 262 (Tex.Crim.App.) cert. denied 493 U.S. 984, 110 S.Ct. 519 (1989); Mines v. State, 852 S.W.2d 941, 949 (Tex.Crim.App. 1992) cert. granted, judgment vacated on other grounds, 510 U.S. 802, 114 S.Ct. 42 (1993); Fuller v. State, 829 S.W.2d 191, 195 (Tex.Crim.App. 1992), cert. denied 508 U.S. 941, 113 S.Ct 2418 (1993); Nethery v. State, 692 S.W.2d 686, 708 (Tex Crim.App. 1985) cert. denied 474 U.S. 1110, 106 S.Ct. 997 (1986).
Although the magistrate judge is of the opinion that the failure to satisfy the "cause" element under Strickland is dispositive, in the alternative assuming arguendo that it is necessary to address the "prejudice" prong, relief on this basis should be denied as well.
In order to establish "prejudice" a defendant "`must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Terry) Williams v. Taylor, 529 U.S. 362, 391-92, 120 S.Ct. 1495, 1511-12 (2000) quoting from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984). In determining the "prejudice" issue the court is required to consider the evidence which was presented in the punishment phase of Lewis's trial juxtaposed with the admissible evidence presented at the federal evidentiary hearing and determine whether, had the omitted evidence been presented to the jury, there is a reasonable probability that the jury would not have given affirmative answers to the special issues in the punishment phase. However, whether the omitted evidence should have been presented in turn requires a "cause" analysis of trial counsels' representation. Therefore, the court will first address the remaining issues of concern identified by the Fifth Circuit in its remand order.
It is perhaps well to recall that Strickland also involved a capital conviction in which the death penalty was imposed.
2. Investigation and Preparation for Punishment Hearing. The Fifth Circuit noted that the records before it suggested that preparation for the punishment phase comprised only 12 hours of attorney time and was not begun until one week before the trial began. The evidence presented at the evidentiary hearing proves otherwise.
Mr. Byck was assisted by Jan Hemphill as Lewis's co-counsel. Just as Mr. Byck was an experienced lawyer, Ms. Hemphill had been a licensed lawyer for approximately 22 years at the time of Petitioner's trial (E.H. 539). It was her second capital murder trial (Id. 549). She and Mr. Byck began working on Lewis's trial shortly after their appointment. She testified that their work related to both guilt and punishment — that the two aspects really cannot be separated (Id. 540). She further noted that they could not have started punishment preparation after trial began (Id.564) and that in Dallas it was unlikely that the punishment phase would not occur.
Neither of Lewis's trial attorneys had any records at the time of the evidentiary hearing. Mr. Byck's were destroyed in a fire in 1988 (E.H. 499) and Ms. Hemphill's files were no longer in her possession (E.H. 539-40). The only time records are those of the investigators, referred to in the course of the trial (S.O.F. 3609-10) — 60 to 80 hours, Mr. Byck's time records through May 5, 1987 (Respondent's Hearing Exhibit 2) and Ms. Hemphill's submission for investigative fees (Respondent's Hearing Exhibit 4).
Ms Hemphill spoke with family members of Petitioner, including his mother, grandmother and a sister or aunt, during which they discussed his childhood (E.H. 541-42). At least one of the investigators spoke to Tammie Tonette Lewis, a sister (E.H. 72) and she also spoke to Mr. Byck as early as September 1986 (Id. 99). Based on her recollection Ms. Hemphill was informed that Lewis had been abused, but did not know the full extent of it (E.H. 542), and that his family was not forthcoming about it (Id. 545). Perhaps the family members' reticence prior to trial was occasioned by fears of Petitioner's father. See Tammie Tonette Lewis's testimony at E.H. 100-101.
When asked about incidents of abuse recited in a declaration prepared by Daniel J. Sonkin, Ph.D., based upon statements of Lula Mae Berry, Ruthie Ann Sims and Tammie Tonette Lewis, Ms. Hemphill stated that no one ever reported such incidents to her in her meetings with Petitioner's family. E.H. 589-592.
One can only speculate as to why the conduct attributed to Odell Lewis, Petitioner's father, as related in family members' statements made in January 1993 was not divulged to his counsel in pretrial conferences. While counsel was aware of at least some level of abuse, in the absence of some elaboration which should have been known to those family members who were interviewed, counsel were reasonable in assuming that both Lewis and his family would speak in candor. Simply stated, none provided counsel with information which suggested the need for further investigation of severe childhood abuse, including any effort to contact Ruth Ann Sims, an aunt, residing in Louisiana, after having left Dallas in 1982. E.H. 290. The Sixth Amendment does not require counsel to read potential witnesses' minds. Absent some evidence that counsel was provided with sufficient information of significant child abuse, counsels' failure to pursue this possibility cannot be a basis for finding constitutionally infirm representation. See e.g. Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992); see also Sonia v. Johnson, 207 F.3d 232, 251 (5th Cir.) cert. denied 530 U.S. 1286, 121 S.Ct. 2 (2000).
It is significant that in November 2001 Lewis himself did not appear to believe that his father was a particularly abusive parent. See Testimony of Dr. Edward Brown Gripon, E.H. at 462. Further, notwithstanding the family witnesses' present portrayal of Odell as being mean and evil, he attended Petitioner's trial along with other members of the family. See S.O.F. 3872.
Although counsel called only one witness in the punishment phase, that fact — standing alone — does not evince an absence of punishment phase preparation. As discussed below, Mr. Byck was extremely well prepared for that portion of the trial.
3. Trial counsels' understanding of the law. In both the magistrate judge's former recommendation filed on July 5, 1995, at page 17 and in the Fifth Circuit's order filed on December 21, 2000, at pages 9 and 10 and note 9, it was concluded that trial counsels' failure to present evidence of childhood abuse could not be attributed to a tactical decision. This conclusion in turn was predicated on Petitioner's trial attorneys' affidavits wherein each opined that "evidence of abuse [was not introduced] at the punishment phase of [Petitioner's] capital murder trial because it was not relevant under the special issues in the Texas death penalty statute" (Emphasis added). See Exhibits T and U.
Without casting doubt on the veracity of the statements themselves, the fact that each affidavit contains essentially identical language suggests that the words used were those of the drafter of the affidavits rather than those of the affiants themselves. Compare the evidentiary hearing testimony of Lula Mae Berry at E.H.331-333 wherein she confirmed that she had signed a post-conviction affidavit in 1993, but that she couldn't read it. This factor — aside from hearsay issues — points out why it is rare that an affidavit may be used in an adversary proceeding without further explanation by the affiant, either on direct examination or under cross-examination.
The evidentiary hearing testimony of Lewis's trial attorneys shows that their opinions regarding the use of childhood abuse evidence were decidedly different than that conveyed in their affidavits. Specifically both Mr. Byck and Ms. Hemphill explained that in their professional opinions the nature of a Texas state court's punishment phase instructions in a capital murder trial prior to the Supreme Court's opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989), did not provide a jury a full opportunity to consider mitigating evidence of an abused childhood.See Testimony of Michael Byck at E.H. 512-513; Testimony of Jan Hemphill E.H. 585. Counsels' view of the restrictive nature of jury instructions received vindication by the Supreme Court. Penry, supra at 329, 109 S.Ct. at 2952. However, it is clear that counsel knew that they could have presented evidence of childhood abuse and their decision not to put on additional evidence of such abuse was not based on an erroneous belief that it could not be presented.
As noted above, interviews with Petitioner and his closest family members never provided counsel with evidence of childhood abuse of the magnitude and character of that obtained by habeas counsel in 1993.
4. Counsel's performance in the punishment phase. Prior to the presentation of any evidence in the punishment phase of trial, counsel was confronted with the daunting task of attempting to neutralize or minimize the evidence of Lewis's guilt which the jury received in the guilt-innocence stage of the capital murder trial.
The devastating nature of the state's proof is partially demonstrated by the videotape of Lewis committing the murder. Unlike evidence based on eyewitness testimony alone, the jury saw the murder as it unfolded with their own eyes. The video portion was produced by Respondent in the instant habeas proceeding. However, the jury heard Petitioner's statements in the course of events as well. See State's Exhibit 13, S.O.F. 3963, et seq. for transcript of audio portion. Both the magistrate judge in the prior recommendation (See Findings, Conclusions and Recommendation filed on July 20, 1995, at page 15) and the Fifth Circuit's opinion filed on September 13, 2000 (at pages 3, 6 and 12-13) point out the strength of the prosecution's case and why attempts to ameliorate Lewis's conduct would have been fruitless.
The prosecution began the punishment phase of trial by calling Petitioner's state parole officer, Conchita Jackson. S.O.F. 3557, et seq. Upon his release from prison Ms. Jackson commenced parole supervision barely one month before Lewis murdered Matt McKay. She related his generally unsatisfactory performance on parole, including the fact that he never even obtained a Social Security card, a prerequisite for obtaining employment. As a result she issued an absconder report in June 1986.
From her testimony it does not appear that Ms. Jackson was aware of any of the offenses which Lewis committed prior to her report.
The State then presented three Dallas police officers, each of whom testified that Petitioner's reputation for being a peaceful and law-abiding person was bad. Prudently Mr. Byck asked no questions of these officers which would have permitted them to testify about specific reasons for their reputation opinions.
The prosecution next presented evidence of Petitioner's participation in the night-time burglary of the Glo-Co gas station in the early morning hours of June 12, 1986. See Testimony of Officer R.D. Grant, S.O.F. 3627, et seq; S.M. Laney, S.O.F. 3627, et seq. David Keeton, a private security guard who had known Lewis for two to two and one-half years — based at least in part on Petitioner's involvement in a night-club altercation — positively identified Lewis as the person coming out of the burglarized business with a box under his arm. Id. at 3694-95. Keeton concluded his testimony by observing that Petitioner had a bad reputation for being a peaceful and law-abiding citizen. Given Keeton's long-standing acquaintanceship with Lewis defense counsel did not attempt to impeach his in-court identification, nor did Mr. Byck attempt to probe the basis for his opinion of Petitioner's reputation.
Next the prosecution called Donna Schell, a Mesquite police officer, who testified to her investigation of a Mobil gas station robbery, remarkably similar to the robbery in which Lewis murdered Matt McKay, only 10 days previously. S.O.F. 3703, et seq. Officer Schell could not identify the perpetrators, but could only describe facts and circumstances which were related to her. On cross-examination Mr. Byck did a masterful job of obtaining the officer's admission that eyewitness descriptions are not always accurate, as well as her concession that none of the persons interviewed at the scene described a robber consistent with Petitioner's height of 6'6" with a 7" scar on the right hand-side of the face. Id. S.O.F. 3723-3731, and at 3729. On redirect examination Officer Schell conceded that she had no idea of where the victim cashier was at the time of the trial (3737).
The prosecution next called Kenneth Nichols. S.O.F. 3740, et seq. Nichols testified that he was present at the Mobil station robbery. An examination of his testimony reflects a robbery modus operandi remarkably similar to the robbery in which Matt McKay was killed. He described the manner in which he first became aware of the videotape while he, himself was confined as a prisoner in the Dallas County Jail. On cross-examination Mr. Byck demonstrated a high level of competence. Building on the testimony of Officer Schell, who testified about the inaccuracies which can occur in witnesses' descriptions, Byck elicited from Nichols the fact of three prior photo identifications which he had made of persons other than Petitioner as well as impeaching his direct examination testimony that he had made only one pretrial photo identification. Counsel also impeached Nichols with his prior felony conviction record. At this point in the proceedings the jury could well have had a reasonable doubt about the reliability of Nichols's in-court identification.
Prior to Mr. Nichols's testimony in the jury's presence the court conducted a suppression hearing with respect to the witness's anticipated in-court identification at the conclusion of which the court denied the motion to suppress (S.O.F. 3663-3680). Defense counsel elicited from him the fact that he had made an erroneous tentative identification of Marvin Wells as a participant in the December 1, 1985, Mobil station armed robbery.
Byck's examinations of Officer Schell and Mr. Nichols significantly undermines Lewis's argument that trial counsel were unprepared for the punishment phase of his trial.
However, in much the same manner that the videotape of Petitioner's conduct in the course of the robbery-murder foreclosed the possibility that he was not a participant or that the shooting was a mere accident, the prosecution's next witness, Willie Charles Berry, administered thecoup de grace, as it were, to any argument that Lewis did not participate in the Mobil station robbery. Even in the face of this devastating blow, Mr. Byck elicited the fact that Lewis told Berry that he was not intending to shoot McKay and that he did not believe that he had killed him (S.O.F. 3804-05).
The State concluded its punishment phase evidence with testimony regarding Lewis's intimidation of other inmates, while he awaited trial, in "shaking down" new inmates for their personal property. Randy Williams, one of the inmates — who was 5' 7" — related how others, at the direction of Petitioner dragged him into a cell on January 21, 1987, and began beating him when Williams refused to demand that a newly-arrived cell mate surrender his personal effects to Lewis and others. With the conclusion of testimony relating to this incident the State rested (S.O.F. 3868).
It is against this evidentiary background that counsels' punishment phase representation is to be assayed.
a. Messrs. James King and Donald Evans. James King and Donald Evans are employees of the Dallas Independent School District. They knew Petitioner when he was a ninth grade student in approximately 1981 or 1982. Both King and Evans were involved in coaching athletics, particularly ninth grade football. Petitioner was also a student in King's remedial math class, which consisted of students who were the least academically advanced. The text used was designed for the third through sixth grade levels.
In neither their affidavits nor their evidentiary hearing testimony did either identify the academic school year in which they had contact with Lewis, although King testified that Lewis was less than 16 years old at the time.
Mr. King testified that Lewis was academically challenged — as were the other students in the remedial math class — and that Lewis was in the ninth grade only by reason of the fact that the school district had a policy of social promotion. Both witnesses testified that Lewis did not have adequate clothing and that he lived in an economically deprived, crime-ridden neighborhood.
With respect to Petitioner's participation in football they testified that he did not understand all of the instructions given — in part because it was his first year to play football. He also experienced some agility problems because of his age and size. Despite his lack of athletic prowess Lewis was made a team captain primarily because of his size which his coaches hoped would be an intimidation factor with respect to opponents who were much smaller than Lewis at 6' 2" and around 200 pounds. Although Lewis was much larger than his fellow students he never picked on smaller students and never was disciplined for misbehavior at school. Neither witness had any contact with Petitioner's family members and their only involvement with him was in his ninth grade school year, after which each lost any further contact with him. Neither was aware of any of Petitioner's criminal conduct which followed. Both testified that they were not contacted by anyone prior to Lewis's murder trial, but that each would have been willing to testify, consistent with their evidentiary hearing testimony, had they been asked.
There is no evidence in the trial record or the evidentiary hearing which suggests that either of these individuals was contacted prior to the completion of Petitioner's capital murder trial. There is some evidence that retained investigators were still in the process of contacting or recontacting character witnesses even as the punishment phase was proceeding. See S.O.F. 3598-3624, at 3603-3605. However, due to the passage of time and the absence of any extant records, it is a matter of sheer speculation as to whether either King or Evans were among persons intended to be contacted by the investigators.
The hearing before the trial court resulted in a ruling whereby the investigators were permitted to receive more than the maximum statutory fees, but counsels' effort to obtain a continuance was denied. S.O.F. at 3619-3621 In retrospect it appears that had trial counsel broached these matters earlier on in the trial proceedings, additional investigation might have been accomplished. However, it is unnecessary to consider whether this delay satisfies the "cause" prong of the Strickland test because Lewis cannot demonstrate any prejudice.
When compared to the quality and quantity of evidence presented by the prosecution in both phases of Petitioner's criminal trial, the evidence which might have been presented through Messrs. King and Evans pales into insignificance. The jury was certainly aware of the fact that Lewis came from an impoverished background. Nor is the fact that he was a below average student a factor which would mitigate against imposition of the death penalty. Further, the absence of any aggressive behavior toward his smaller student peers is inconsistent with one classic manifestation of abuse victimization — i.e. a modeling of aggressive behavior towards others. See Testimony of Dr. Mark Douglas Cunningham, Ph.D., E.H. 157, 163-164; 171-72; 179-180.
It is undisputed that Lewis had an I.Q. in the range of 80 to 85 which places him in a lower average range. See Testimony of Dr. Richard Peck, Ph.D., E.H. 416-17, 433; Dr. Edward Brown Gripon, M.D., E.H. 461-62.
b. Family members' testimony regarding child abuse. Petitioner presented the testimony of Tammie Tonette Lewis, an older sister; Ruth Ann Sims, a maternal aunt; Betty Jean Moore, another maternal aunt; Lula Mae Berry, his grandmother; Arlisa Lewis, a younger sister; and Peggy Ann Clemmons, his oldest sister, at the evidentiary hearing. Except for Lula Mae Berry, none testified at trial, although Tammie Tonette Lewis, Arlisa Lewis and Peggy Ann Clemmons were present during at least portions of his trial.
The evidence of "severe child abuse" was first disclosed in affidavits executed by Tammie Tonette Lewis, Ruth Ann Sims and Lula Mae Berry on January 3, 1993, in conjunction with Petitioner's art. 11.071 habeas application.
For the reasons stated above, there is no credible evidence that any family member disclosed to Petitioner's trial attorneys or their investigators any physical or psychological abuse of the severity and persistence related in the January 1993 affidavits. Therefore, trial counsels' performance cannot be called into question. To do otherwise, i.e. to consider evidence not disclosed until more than five years after the conclusion of Lewis's capital murder trial, would constitute assessing an attorney's representation in hindsight which Strickland forbids, 690, 104 S.Ct. at 2065. Because Lewis cannot show that this counsels' failure to call these witnesses — other than Lula Mae Berry — fell below Sixth Amendment requirements, he is not entitled to relief
Alternatively, had these persons been called as witnesses, the admissible testimony which they were competent to present does not create a reasonable probability that the jury would not have imposed the death penalty.
In considering the evidence which might have been adduced at trial the magistrate judge is not unmindful of the fact that portions of Lula Mae Berry's proffered trial testimony were not admitted. See magistrate judge's recommendation filed on July 20, 1995, at pages 27-30.
Tammie Tonette Lewis testified that her father, Odell, abused her and all her siblings. She is seven years older than Petitioner and left her parents' home when Andre was only 7 or 8 years old. E.H. at 77. She along with the other witnesses testified that Odell was injured in an accident in 1980 when Andre was around 14 years old, which rendered Odell wheel-chair bound for the remainder of his life. Tammie specifically recalled seeing Odell abuse Petitioner when Andre was five years old and learning to tie his shoes (E.H. 78). She also testified that she saw Odell make Petitioner hold a towel tourniquet while Odell was "shooting up" drugs when Andre was pretty young — six or seven (Id. 62-63). Finally, she testified that she saw Odell kick Andre down the stairs, when Andre was around seven causing an ankle injury (Id. 67-68). She further related instances of abuse toward herself and her mother which occurred during Petitioner's infancy or when Andre was not present, which would have been irrelevant and inadmissible. Finally, she related continuing beatings of her siblings which occurred after she left the house which would have been inadmissible on hearsay grounds. Likewise her testimony about Andre's post-murder statements, including the alleged accidental nature of the shooting would have been held inadmissible (Id. 69-71).
Evidence of Petitioner's claim that the shooting was accidental was already known to the jury as related in his written statement (State's Exhibits 7 and 10) and from Willie Berry's testimony (S.O.F. 3804-05).
Defendant and his siblings lived with Ruth Ann Sims and her mother, Lula Mae Berry, while Odell and Andre's mother were in prison in Louisiana (E.H. 262). She related numerous incidents of abuse by Odell toward herself and Petitioner's mother, which occurred prior to Petitioner's birth or during his infancy. She also related similar incidents to those related by Tammie, most of which occurred in Louisiana prior to Petitioner's fifth birthday. She testified that Odell frequently made all of the children take off their clothes after which he would whip them with a strop. She said that these whippings occurred until Petitioner was 12 or 13 years old. However, it is unclear whether she observed any of these whippings or, if she did, how frequently they occurred. She testified that Andre was essentially on his own from around age 14. She also testified that Andre was picked on because of his size, but that he never bullied other children. She knew of a 1984 conviction which resulted in a prison sentence and was aware of his capital murder indictment from information received from her sister, Petitioner's mother.
Betty Jean Moore testified that she and her mother, Lula Mae Berry, raised Petitioner and his siblings while their parents were in jail. She related her knowledge of beatings which Odell administered before he was confined to a wheel chair.
Lula Mae Berry testified that Odell beat all his children although she never saw it. She heard that Odell whipped his children in their private areas, but again never saw such conduct. She remembered an incident when Petitioner was about six years old when he had a big knot on his head. On cross-examination at the evidentiary hearing she related that she saw Odell whip Petitioner, but never brutally (E.H. 362). She testified that when Andre lived with her she showed him love and affection and taught him right from wrong and saw that he attended school. Petitioner never bullied other children and never got into trouble at school.
Arlisa Lewis, Defendant's younger sister, testified that Odell whipped her and her siblings in their genital area a lot (E.H. 377-79). Odell seemed like the devil to her (Id. 375). She was present throughout Petitioner's capital murder trial, but was not called as a witness.
Peggy Ann Clemmons, Petitioner's older sister — ten years his senior, testified to having seen Odell whip Petitioner. As with other family members she attended Petitioner's trial but was not called as a witness
Although the State's punishment evidence is limited to the trial record, one is left to speculate as to what steps the prosecution would have taken to exclude or counteract it. In all likelihood the State — as it did with the proffered testimony of Lula Mae Berry — would have moved to exclude any testimony concerning physical abuse of Petitioner which the witness did not personally observe. Would the prosecution have called Odell Lewis, who was present at trial, to contradict such witnesses' testimony of frequent and extreme physical abuse?
The testimony of these witnesses — excluding that of Lula Mae Berry, who did testify — would not within reasonable probability have changed the jury's determination on punishment. Most of the specific instances in which they related that Odell struck Andre took place when he was eight years old or younger. Arguably such evidence would have been inadmissible on relevancy grounds, given the hiatus between these instances and the date of Matt McKay's murder since it is ordinarily required that there be some colorable nexus between the abuse and the criminal conduct. See Penry, supra, at 319, 109 S.Ct. 2947. Even were such evidence admitted, the "nexus" requirement strongly suggests that a jury would give little weight to such evidence, being so remote to the murder — with intervening criminal convictions which post-dated the time that Petitioner left home and after Odell became physically unable to administer any corporeal punishment. Further, the fact that Petitioner was a well-behaved student and never bullied smaller peers at school casts severe doubt on whether any abuse at the hands of his father affected his conduct on November 25, 1985.
Except for beatings allegedly observed by Arlisa and Peggy Ann Clemmons, the testimony which those non-testifying family members could have presented is largely cumulative of the testimony of Lula Mae Berry or evidence which was already before the jury. of course, the `eyewitness' testimony of beatings is subject to rejection on credibility grounds. It is well known that juries frequently reject the uncorroborated testimony of a defendant's family members because of the perceived perception that a blood relative is more likely to be biased — if not dishonest — than an unrelated witness.
Petitioner proffered no records of injuries which he or any sibling sustained consistent with the possibility of physical abuse nor of any incidents of suspected child abuse to a state agency, which persistent and aggravated abuse by a parent would be expected to have produced.
Having observed the demeanor of these witnesses at the evidentiary hearing, the magistrate judge observes that they were frequently given to hyperbole when describing the physical abuse which Odell allegedly visited on Andre and his siblings. Further, these witnesses were vague in the extreme when attempting to give a time frame to the most severe occasions of abuse.
c. Expert Witnesses. For the reasons stated above, including the fact that no family member ever provided any information of severe child abuse, Lewis cannot satisfy the "cause" prong of the Strickland test. However, in the alternative the magistrate judge addresses the "prejudice" element in light of the expert testimony presented at the evidentiary hearing.
1. Dr. Mark D. Cunningham. Ph.D.
Aside from the fact as related at pages 3-4 concerning trial counsels' decision not to pursue expert witness investigation into Petitioner's mental and psychological character, Lewis's presentation of expert testimony at the evidentiary hearing borders on the surreal. Most of Dr. Cunningham's impressive curriculum vitae was based upon his activities and publications which post-dated the June 1987 capital murder trial and thus could not have been marshaled before the jury. More to the point Dr. Cunningham conceded that he had not testified as a witness in a capital murder trial prior to the date of Petitioner's trial and was unaware of any forensic psychologists who were in Dallas at that time (E.H. 248). Similarly, the second expert, Dr. Richard L. Peck, Ph.D., did not receive his doctorate until 1987.
In formulating his expert opinions Dr. Cunningham reviewed the sentencing transcript from Lewis's trial, the affidavits of various family members prepared in 1993, hospital and education records of Petitioner and others, records relating to Petitioner's period of incarceration and other public records. E.H. 133. However, he did not personally exam Lewis (Id. 225). The weight to be given to an expert's opinion, predicated on the affidavits is obviously affected by the credibility of the allegations of the family members.
His testimony presented a generalized overview of the fact that good parental training usually equips a child to be a productive citizen, while bad parenting can produce dysfunctional children. While economic deficiencies and poor modeling by parents can result in maladjusted children, none of this testimony goes beyond that which is commonly understood by lay persons. There is nothing in this line of testimony which could be considered startling or revolutionary. of peculiar significance as it related to Lewis himself is the inability to explain — assuming the degree of abuse attributed to his father as reflected in family members' affidavits — his lack of aggressiveness towards others during his school years (E.H. 179-180; 249-250).
Attribution of Petitioner's behavior and cognitive deficits to lead poisoning is not borne out by the evidence. Both Drs. Peck and Gripon testified that no accurate diagnosis could be made without blood tests, which Lewis never had. E.H. 447-49; 472-73.
The other major thread of his testimony related to the issue of future dangerousness. See E.H. 189-214). This line of testimony was premised primarily on statistical data accumulated prior to 1987 in studies conducted in Canada, Maryland and other jurisdictions including studies undertaken under the auspices of the United States Department of Justice. Conspicuous by their absence were any data based upon prison populations in the State of Texas. It is at least problematic as to whether these data would have been ruled admissible in Petitioner's criminal trial. They purport to track prison inmate violence under variously denominated categories of offenses. As Cunningham explained, those studies suggest that capital murder inmates are no more or less violent than other offenders serving prison sentences and that as inmates age their propensity toward violent criminal conduct subsides. E.H. 239. Although he was aware of the incident in the Dallas County Jail, See Testimony of Randy Williams (S.O.F. 3845, et seq.), he gave short shrift to this incident, relying instead on the absence of major infractions during his confinement in prison (E.H. 246).
An effort to avoid imposition of a death sentence by arguing that a defendant confined under a capital life sentence will not be a future danger is hardly novel, nor is it one that is generally successful. Certainly had Petitioner's counsel presented expert testimony along these lines, it would have been rebutted by a State's expert — probably Dr. Grigson. Given Dr. Cunningham's glossing over of violence at the Dallas County Jail at Lewis's instigation, very little weight would have been given to his opinion of Petitioner's lack of future dangerousness predicated on nothing more than statistical data.
The success or lack thereof obviously is dependent on the facts of each individual case.
Dr. Cunningham also opined that, based upon his review of the videotape, Lewis did not intend to kill McKay, E.H. 220-21. While a person who might have been available to testify at the criminal trial with similar expertise to that of Dr. Cunningham might have been precluded from giving an expert opinion on this matter, the State may well have not objected. Had such testimony been given it may well have resulted in the jury giving no credence to any of such an expert's opinions, contradicting as it did everything that the jury had seen and heard as well as the testimony of Dr. Peck. Id. 442-443.
Much of the foregoing involves matters of speculation only. However, under the evidence presented at trial to the jury and assuming that Petitioner had presented expert testimony consistent with that expressed by Dr. Cunningham, the magistrate judge has no hesitancy in concluding that there is no reasonable probability that such testimony would have changed the result of the jury's punishment verdict.
2. Dr. Richard Peck. Ph.D.
Dr. Peck is a clinical psychologist specializing in child psychology. He personally examined and evaluated Petitioner in December 1992 and in November 2001. His basis for determining that Lewis was a victim of child abuse was based upon the affidavits of family members and conclusions drawn by Dr. Daniel Jay Sonkin, Ph.D., based upon Sonkin's review of the affidavits. He never spoke with any family members, nor did he review the punishment phase testimony. He also reviewed a videotape of the murder of Matt McKay. Although Petitioner's cognitive deficits could have been produced in part by lead poisoning, he can only draw an assumption in light of the absence of blood testing. Lewis's school records showed that he was functioning in the lowest tenth percentile, although he is not a retarded individual. Unlike all others who have reviewed the videotape, Dr. Peck expressed the opinion that Lewis was trying to help McKay after he shot him, rather than kicking him. He conceded that Petitioner's prior criminal history accompanied by an escalating pattern of violence was suggestive of the fact that Petitioner was dangerous.
Having both considered the substance of Dr. Peck's testimony in the evidentiary hearing as well as his demeanor, had such testimony been presented at the punishment phase of Petitioner's trial it would have had at most a neutral effect on the jury's punishment decision. In essence it added nothing to matters which were already before the jury. His conclusion of severe child abuse was predicated solely on the affidavits of family members without any interviews of them, probing into the veracity of their allegations. His opinions with respect to lead poisoning or brain trauma were totally speculative, since there were no medical data or tests from which a diagnosis could be effected. Conclusion: As the trial record clearly discloses Petitioner's counsel was presented with an essentially impossible task of obtaining an acquittal on the charge of capital murder. The same holds true with the punishment phase wherein the prosecution adduced testimony and evidence of ascending criminal activity including a second post-murder armed robbery and instigation of physical harm toward another inmate while Lewis awaited trial.
Over Petitioner's objection the magistrate judge allowed Respondent the opportunity to have him examined by an expert. See Telephone Conference conducted on October 29, 2001, at pages 11-12. See also Petitioner's opposition filed on October 30, 2001. The magistrate judge is of the opinion that Petitioner's argument with regard to his Fifth Amendment privilege is a valid one. See Smith v. Estelle, supra, at 464-65, 101 S.Ct. at 1873-74. In Smith a psychiatrist, Dr. Grigson, who was court appointed to determine the defendant's competency to stand trial, necessarily inquired into the defendant's knowledge and recollection of the events in order to determine if Dusky standards were satisfied. However, in the course of the punishment phase of trial the doctor was permitted to recount the defendant's statements, obtained in the course of the competency examination, in order to substantiate his conclusion that defendant was a future danger and had no remorse for his criminal acts.
Dr. Edward Brown Gripon, M.D. examined Andre Lewis at the request of Respondent and testified in the evidentiary hearing. E.H. 457, et seq. In the course of his testimony he related Lewis's comments about the murder for which he prosecuted. Id. at 465-468.
The magistrate judge believes it is appropriate for the District Court and — if necessary — for the Fifth Circuit to understand my rationale for permitting the examination by Dr. Gripon and the purposes for which I have considered his testimony and that which I haveexpressly disregarded.
No evidence was presented by either side at trial regarding Petitioner's mental status, nor was any psychological testing obtained by either. The papers proffered by Petitioner when he filed his petition as well as the opinions presented at the evidentiary hearing are those of experts, of which the magistrate judge has no special knowledge. To approximate that which might have been presented by both sides at trial and to submit the findings and conclusions of Drs. Peck and Cunningham to adversarial testing and further to assist the magistrate judge in assessing the weight which the jury might have given to their testimony, the magistrate judge permitted Dr. Gripon to conduct his own examination of Lewis as had Dr. Peck on two occasions. The magistrate judge has only considered Dr. Gripon's testimony in evaluating whether the methodology used in Petitioner's experts' conclusions are grounded upon acceptable diagnostic principles. E.g. lead poisoning can only be confirmed or excluded by blood tests, organic brain trauma can only be diagnosed using prescribed testing. The magistrate judge has not considered for any purposes anything which Dr. Gripon may have related with respect to Lewis's version of any criminal acts committed by him.
Without question the jury's ultimate decision on the issue of punishment was the worse result which could have obtained from Petitioner's perspective. However, this result stems from his own conduct as presented to the jury and cannot be placed on the shoulders of his trial attorneys.
As noted above, experienced criminal defense counsel made a deliberate tactical decision not to pursue investigation of Petitioner's cognitive deficits in an effort to avoid the possibility of confronting contradictory testimony from a persuasive well-seasoned opposing expert in the person of Dr. James Grigson.
The evidentiary hearing testimony and review of trial counsels' performance in the punishment phase thoroughly refutes any assertion that insufficient time was devoted to preparation for the punishment phase. Similarly the evidentiary hearing testimony by both of his attorneys dispels any notion that they believed that evidence of childhood abuse was inadmissible in a Texas capital murder trial in 1987.
School instructors' testimony, had it been presented in the punishment phase, could not have reasonably influenced the jury's punishment verdict in the face of the damning evidence produced by the State. Not only was it remote in time to Lewis's criminal career, but given the passive character of Petitioner, when they knew him, it would have been contradictory to the modeling of aggressive behavior usually manifested by a victim of severe childhood abuse.
Trial counsel, despite repeated interviews with Lewis and relevant family members — many of whom were present at trial and several of whom testified at the evidentiary hearing — were never apprised of any corporeal punishment at the hands of his father sufficient to raise an issue of severe child abuse. Therefore, counsel cannot be faulted for not pursuing investigation of possible child abuse.
Lewis has failed to show that his counsel were constitutionally deficient in their preparation and participation in the punishment phase of his criminal trial. Therefore he has not proved the "cause" prong of the Strickland test and relief should be denied.
Alternatively, even if the "cause" prong were satisfied, Petitioner has failed to prove "prejudice" as set out in Strickland and reiterated in(Terry) Williams v. Taylor for the reasons stated above.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order and its judgment following remand denying Lewis's petition.