Filed: Feb. 17, 2012
Latest Update: Feb. 22, 2020
Summary: -that counsel was concerned the government, could effectively argue that Smith's several, get away with it statements showed that a, Tourette's-based defense was part of a plan to, kill Champagne and avoid criminal, responsibility--suggesting premeditation and, specific intent.
United States Court of Appeals
For the First Circuit
No. 11-1216
VICTOR E. SMITH,
Petitioner, Appellant,
v.
THOMAS DICKHAUT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Selya and Stahl,
Circuit Judges.
Charles K. Stephenson for appellant.
Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.
February 17, 2012
BOUDIN, Circuit Judge. Victor Smith is serving a life
sentence in a Massachusetts state prison for first-degree murder.
Massachusetts' Supreme Judicial Court ("SJC") affirmed Smith's
conviction on direct review, Commonwealth v. Smith, 864 N.E.2d 1194
(Mass. 2007), and he now appeals from the federal district court's
denial of habeas relief. The facts underlying the conviction are
set out at length in the SJC's opinion, and need only be summarized
here.
Smith and a friend, Francis Albis, spent the evening of
March 4, 2000, "bar hopping" in North Adams, Massachusetts. They
each consumed about ten drinks over the course of six hours or so,
and witnesses reported that they showed signs of drinking but did
not seem drunk. Early in the evening, Smith also consumed two
Artane pills, a medication prescribed to him for treating
Tourette's Syndrome ("Tourette's"), which Smith had been diagnosed
with at a young age. Smith, 864 N.E.2d at 1196, 1202.1
When Smith and Albis were at their final bar of the
night, they saw David Champagne, who was dating Smith's cousin.
Smith, upset over a report that Champagne had beaten her up, told
Albis that he wanted to "kick [Champagne's] ass," and announced to
1
Tourette's is a developmental disorder "that affects the
involuntary movements controlled by the frontal networks of the
brain." Smith, 864 N.E.2d at 1196. Although popularly associated
with inappropriate speech, the much more common symptoms are
involuntary physical tics such as blinking and facial movements.
See Am. Psychiatric Assoc., DSM-IV-TR 111-14 (4th ed. 2000).
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other bar patrons that he wanted revenge. Smith, 864 N.E.2d at
1196-97. Unaware of the threats, Champagne later provided Smith
and Albis a ride home. During the trip, Smith accused Champagne of
beating up his cousin, and they argued until Champagne parked his
car near the apartment buildings where Smith and Albis lived.
Shortly thereafter, Smith attacked Champagne, fatally stabbing him
twenty-two times in the back, chest, shoulder, neck and face.
Id.
at 1197-98.
Leaving Champagne to bleed to death, Smith and Albis
walked into their apartment complex, where they encountered three
tenants. Smith pushed one of them up against a wall and bragged
that he "just did a guy" and was not afraid "to do another one."
Smith, 864 N.E.2d at 1197. Smith told Albis and the tenants that
he would "get away with it" because he had Tourette's Syndrome, a
statement that Smith later repeated at Albis' apartment; he
threatened Albis' wife Melissa when she attempted to call the
police, stating that he would have no problem killing her or her
five children.
Id.
The police discovered Champagne's body a few hours later,
and their investigation quickly led to Smith and Albis. Smith
admitted to fighting Champagne but claimed no recollection of
stabbing him, though an officer later overheard Smith tell his son
that he was never coming home because he had done a very bad thing:
hurt and killed a man.
Smith, 864 N.E.2d at 1198. A search of
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Smith's apartment led to a knife that--although it had no blood on
it because Smith had washed it--was consistent in size and shape
with Champagne's wounds. Id.
The state charged Smith with first-degree murder,
alleging deliberate premeditation and extreme atrocity or cruelty.
Testimony from Albis about the killing, along with forensic
evidence and testimony from others who had heard Smith's threats
and boasts, established a powerful prima facie case of first-degree
murder, leaving Smith with the need to establish a defense or
negate some element of the murder offense to bar or reduce the
charge.
Smith's lead counsel relied centrally on an intoxication
defense designed to achieve a manslaughter verdict.2 An expert
defense witness, Dr. Spiers, testified about the effects of alcohol
on the brain and the combined effects of alcohol and Artane--in
particular, resulting behavioral disturbances--and opined that the
combined effects of the alcohol and Artane rendered Smith unable to
intend his actions or the results of his actions at the time that
he stabbed Champagne. Smith, 864 N.E.2d at 1198 & n.4.
2
Under Massachusetts law, "[v]oluntary intoxication may
preclude the defendant from forming the malice aforethought
necessary to commit murder." Commonwealth v. Murphy, 813 N.E.2d
820, 836 (Mass. 2004). While "killing without malice does not
automatically become involuntary manslaughter," an involuntary
manslaughter instruction is "required" when the "traditional
elements of involuntary manslaughter [are] shown by evidence that
the jury might believe." Commonwealth v. Sires,
596 N.E.2d 1018,
1025 (Mass. 1992).
-4-
The judge instructed the jury that it could consider
whether intoxication affected Smith's state of mind so as to negate
elements of the murder charge, and also instructed the jury on the
lesser crime of involuntary manslaughter as an alternative to
murder. Smith, 864 N.E.2d at 1199-200, 1202. The jury convicted
Smith of first-degree murder, finding both deliberate premeditation
and extreme atrocity or cruelty. By a new trial motion, Smith
pressed a challenge to the competence of trial counsel but the
motion was denied.
The gist of Smith's ineffectiveness claim was that his
trial counsel was ineffective in failing to investigate and present
a defense that Smith's Tourette's Syndrome exacerbated the effects
of the alcohol and Artane, and also that he was legally insane at
the time of the killing on account of the Tourette's Syndrome and
other mental illness. The SJC reviewed the claim, along with other
challenges to the conviction not pursued on appeal. Finding that
counsel had not been incompetent, it affirmed. Smith, 864 N.E.2d
at 1203.
Smith sought habeas corpus in the district court, 28
U.S.C. § 2254 (2006), which denied relief but granted a certificate
of appealability on the issue of whether Smith's trial counsel had
rendered ineffective assistance. Because the state court found
that counsel had offered a competent defense, our review on habeas
is limited as to both fact and law by the familiar standards
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requiring deference, but our result here would be the same even if
no deference were accorded.3
This is not a case in which defense counsel had many good
choices nor one where, even assuming errors in the defense, it
would be easy to show the kind of prejudice required. See
Strickland v. Washington, 466 U.S. 668, 692-96 (1984). Smith had
a professed motive for murder, made threats in advance, savagely
stabbed the victim without immediate provocation, boasted to others
of the killing, and seemingly threatened to kill Melissa Albis, her
five children or all of them when she sought to call the police.
Nevertheless, the question remains why Smith's lead
counsel did not try to make use of Tourette's in some fashion; and
Smith suggests two ways: to augment the drinks and pills argument
of diminished capacity, e.g., Commonwealth v. LaCava, 783 N.E.2d
812, 820-21 (Mass. 2003); see also note 2, above, or to bolster an
insanity claim that would create a full defense where, "due to a
mental illness (mental disease or defect), [a defendant] lack[ed]
the substantial capacity to appreciate the wrongfulness of an
action or to act in conformity with the law" at the relevant time.
Commonwealth v. DiPadova,
951 N.E.2d 891, 897 (Mass. 2011).
3
In such cases, habeas relief is limited to instances where a
state court adjudication resulted in a decision "that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States," 28 U.S.C. § 2254(d)(1), or "that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding," id. § 2254(d)(2).
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In fact, trial counsel had investigated with Dr. Spiers
the possibility of using Tourette's to augment the diminished
capacity argument, and Dr. Spiers was prepared to offer some
helpful testimony that Tourette's would enhance the effects of the
alcohol and medication, so the matter was investigated. But,
counsel explained in an affidavit responding to the new trial
motion
-that after counsel investigated and notified
the government he would offer a defense based
partially on Smith's Tourette's Syndrome, the
government represented that it was prepared to
offer expert rebuttal testimony from Smith's
treating neurologist of seventeen years, Dr.
Ellis, who would testify that Smith's
Tourette's Syndrome played no part in the
killing;
-that counsel's "own observations of [Smith
revealed the] absence of any serious problems
manifested by [Smith]'s behavior and
appearance"; and
-that counsel was concerned the government
could effectively argue that Smith's several
"get away with it" statements showed that a
Tourette's-based defense was part of a plan to
kill Champagne and avoid criminal
responsibility--suggesting premeditation and
specific intent.
Smith, 864 N.E.2d at 1202.
Smith's statements were going to come into evidence in
any event, but emphasizing Tourette's, coupled with rebuttal from
Smith's own long-time doctor (Dr. Ellis), could easily have tainted
a drug and alcohol diminished capacity defense supported only by
the opinion of a doctor less familiar with Smith. That Dr. Ellis
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was prepared to testify as represented was confirmed by his own
post-trial affidavit. Counsel's decision was in all events a
reasonable strategic judgment entitled to deference in a Strickland
inquiry. Robidoux v. O'Brien, 643 F.3d 334, 338 (1st Cir.), cert.
denied,
132 S. Ct. 866 (2011).
Smith also argues that his counsel should have offered an
insanity defense premised on Tourette's Syndrome and other evidence
of mental illness. A new trial motion affidavit by Dr. Boshes,
engaged by Smith's appellate counsel, opines that Smith "may suffer
from Temporal Lobe Epilepsy," and that in Dr. Boshes' medical
opinion, Smith had a seizure at the time of the killing that
rendered him legally insane. A post-trial scan authorized by the
state trial court came back negative. Smith, 864 N.E.2d at 1203.
Dr. Boshes asserts that a negative scan is far from
conclusive, but there is nothing to suggest that--in reviewing
Smith's medical records and consulting two separate medical experts
about Smith's mental health history--counsel overlooked a fruitful
possibility. Absent hard scientific support, a jury would not
likely accept a sudden seizure as the explanation given Smith's
motive, prior threat and subsequent boasts and threats. And the
SJC's factual findings regarding Smith's counsel's investigation
and strategic decisions were reasonable in light of the evidence
presented. Smith, 864 N.E.2d at 1203.
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Smith makes a scattering of other claims of error--in
particular, an alleged lack of consultation by counsel with Smith
and other members of the defense team, a claim that Massachusetts
law did not support counsel's strategy, and the failure of the
state court to hold an evidentiary hearing on the new trial motion.
The SJC deals sufficiently with the points--most of which are
inadequately developed on appeal--and nothing independent of the
Tourette's issues is even within the certificate of appealability.
Affirmed.
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