United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
Jamel Whitt is serving life sentences in custody of the Potosi Correctional Center for the double murder of his grandmother and her boyfriend. Whitt brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Whitt's first ground for relief - error by the trial court in not sua sponte ordering a second competency hearing - fails because the court properly relied on medical evidence that Whitt was competent. Whitt's second ground for relief - insufficient evidence of deliberation in the killing of the boyfriend - fails because there was evidence that the victim was stabbed over thirty times. Whitt's third ground for relief - ineffective assistance of trial counsel for failing to assert the defenses of diminished capacity or mental disease - fails because trial counsel made a reasonable decision to eschew that defense in favor of another defense. Whitt's fourth ground for relief - ineffective assistance of trial counsel for failing to call witnesses to show Whitt's incompetency - fails because Whitt was not prejudiced by the decision. Finally, Whitt's fifth ground for relief - ineffective assistance of trial counsel for failing to seek suppression of Whitt's confessions - also fails because Whitt was not prejudiced by the admission of the confessions. I will deny the petition.
Whitt was charged in state court with two counts of murder in the first degree and one count of armed criminal action. For approximately two years, Whitt was adjudged incompetent to stand trial. Eventually, Whitt was determined to be competent. Following a bench trial on January 29, 2009, he was convicted of all counts. The conviction was upheld on direct appeal in a published opinion filed March 9, 2010. On May 10, 2010, Whitt filed a pro se motion for post-conviction relief in the state court under Missouri Supreme Court Rule 29.15, and an amended motion was filed approximately five months later with assistance of appointed counsel. The amended motion for post-conviction relief was denied without a hearing on March 8, 2011, and fourteen months later the Missouri Court of Appeals upheld Whitt's appeal from that denial.
In affirming the conviction and sentence, the Missouri Court of Appeals, Eastern District, described the competency proceedings as follows:
The complaint charging Defendant was filed April 24, 2005. On or about April 25, 2005, the trial court issued the following order:
Defendant appears confined in open court having been unresponsive to the Public Defender's efforts to interview him, having been on overnight suicide watch and having acted out in court in a manner to suggest the need for a mental evaluation. Whereupon the court orders the Public Defender's office to represent the defendant, that he be taken for a psychiatric examination, that he be provided his prescribed medications... as determined necessary and that he be maintained on a suicide watch.
The trial court also granted Defendant's Motion for Appointment of Psychiatrist, continued the cause, and committed Defendant to the Department of Mental Health (DMH) for a mental examination pursuant to Sections 552.020 and 552.030. Defendant's cause was removed from the trial docket and placed on the Mental Examination Docket on April 25, 2005.
At a certification hearing held on July 25, 2005, Defendant filed a Motion to Declare the Defendant Incompetent. Based on a previously filed psychiatric evaluation report and the record, the trial court found that Defendant lacked the mental fitness to proceed and ordered the cause suspended. The court ordered that the Defendant be committed to DMH; and ordered DMH to evaluate Defendant's mental ability and capacity within six months, and to submit to the trial court a progress report within 30 days of the evaluation. The cause was placed on the Mental Inactive Docket.
On August 30, 2006, the trial court took up the Review of Competency to Stand Trial filed by DMH and Fulton State Hospital. After considering a Pre-Trial Mental Evaluation report prepared by Erica Kempker, Psy. D. (Dr. Kempker) and Jeffrey S. Kline, Ph. D., dated August 2, 2006, the trial court found Defendant remained incompetent to proceed to trial and ordered Defendant's continued commitment to DMH with reevaluation within six months.
In February of 2007, the Director of DMH filed a Motion to Proceed, indicating that the staff of Fulton State Hospital where Defendant was being treated had determined that Defendant's unfitness to proceed no longer endured and that Defendant had the capacity to understand the proceedings against him and to assist in his own defense. Defendant filed an objection to the motion to proceed on February 21, 2007, requesting the court to order a second private examination. On March 15, 2007, the trial court continued the cause to allow Defendant to undergo a private evaluation.
On or about June 19, 2007, the State and Defendant jointly filed an agreement as to DMH's Motion to Proceed, indicating that Defendant had no additional witnesses to present regarding his competence, that both parties agreed Dr. Kempker's report contained sufficient information for the court to make its ruling, and that both parties agreed to submit the report without the necessity of a hearing.
In an order dated June 26, 2007, the trial court found that Defendant was no longer incompetent due to active schizophrenia and was no longer incompetent due to mild mental retardation, and that Defendant had the capacity to understand the proceedings against him and the nature of the judicial process. The court determined Defendant was able to assist in his defense and granted the Motion to Proceed. In making its determination, the trial court relied particularly on Dr. Kempker's report, noting that she had evaluated Defendant on February 8, 2006; July 31, 2006; and January 24, 2007.
The trial court noted that Dr. Kempker's last evaluation made no mention of mild mental retardation, but rather contained diagnoses of Antisocial Personality Disorder and Borderline Intellectual Functioning. The trial court indicated that this most recent evaluation concluded that Defendant had the capacity to understand the proceedings against him and the nature of the judicial process, and that Defendant was in full remission. Additionally, the trial court noted "that a strong suspicion of malingering appears in the diagnosis section. There are apparent inconsistencies in the defendant's psychotic symptoms, level of functioning and vocabulary skills. It appears the defendant displays lower functioning skills during evaluations than he does in regular daily interaction with others."
On February 29, 2008, upon Defendant's request, the trial court ordered Fulton State Hospital to permit Dr. Richard Scott contact visits with Defendant for the purposes of a private pretrial psychological evaluation. On June 3, 2008, upon Defendant's request, the trial court ordered the hospital to permit Dr. Robert Gordon contact visits with Defendant for a private pretrial psychological evaluation.
Defendant waived jury trial, and the cause proceeded to a bench trial on or about January 26, 2009. Prior to the commencement of the proceedings on January 26, the trial court examined Dr. Kempker on the record. In response to the trial court's inquiry as to whether she had an opportunity to observe Defendant or had Defendant under the observance of her staff since the completion of her January 24, 2007 report, Dr. Kempker stated that the treatment team at Fulton State Hospital had continued to observe Defendant and document his behaviors since that time. Dr. Kempker stated that she had reviewed this documentation and nothing contained in it would lead her to believe that Defendant was mentally incompetent to assist in his trial. Dr. Kempker testified that there had been no changes in Defendant's condition since January 24, 2007, and stated that she had seen Defendant casually in the Fulton State Hospital since January 24, 2007, and had continued to engage in consultations with Defendant's treatment team, the members of whom agreed Defendant was competent.
Following additional questioning of Dr. Kempker by the State and by Defendant, Defendant and the State both indicated they knew of no reason that Defendant was not competent to stand trial. Defendant's only asserted affirmative defense was defense of others, and Defendant specifically indicated that he was not raising the defenses of diminished capacity, incompetency to assist at trial, or not guilty by reason of insanity.
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After the State rested its case, the trial court recalled Dr. Kempker to discuss progress notes Dr. Kempker had reviewed and brought from Fulton State Hospital. After reviewing the hospital's last two years of progress notes concerning Defendant, Dr. Kempker was even more confident that Defendant was competent to stand trial. Documented incidents regarding disciplinary actions taken against Defendant while he was at the hospital revealed that when Defendant was dissatisfied with the consequences of his behavior, he would collect the opinions of people who may have witnessed the incident, present this information to a social worker or case manager, and argue that the consequences were either too severe or should be removed. Defendant was successful in getting some infractions reduced or removed. Dr. Kempker further testified that the notes also recorded instances where Defendant would represent to others that he was unable to read, but in group situations, Defendant would read from homework assignments or handouts without a problem.
Dr. Kempker diagnosed Defendant with schizophrenia, differentiated type, in full remission; anti-social personality disorder; borderline intellectual functioning; and malingering. Malingering is when an individual either exaggerates or feigns psychological systems for secondary gain. Dr. Kempker opined that Defendant was competent to stand trial, that he understood the legal proceedings against him and that he could assist in his own defense.
State v. Whitt, 330 S.W.3d 487, 488-90, 92 (Mo.Ct.App. 2010). The Court of Appeals set forth the following facts detailing the evidence of the crimes:
Police Officer Theophilus Buford (Buford) testified on behalf of the State. On April 25, 2005, Buford was employed as a police officer with the St. Louis Metropolitan Police Department and received a call concerning a possible homicide. Buford responded to the call and proceeded to 4730 Lewis Place. When he arrived at that location, he approached Defendant, who was talking on a telephone.
Buford asked Defendant to finish his call; when Defendant hung up, he told Buford that he wanted to talk with someone because he had just killed his grandmother's boyfriend. Buford then read Defendant his rights, took him into ...