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U.S. Court of Appeals, Eleventh Circuit
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No. 98-2886.
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234 F.3d 526, 234 F.3d 526, 2000.C11.0042766 <http://www.versuslaw.com>
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November 29, 2000
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LINROY BOTTOSON,
PETITIONER-APPELLANT,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE.
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Appeal from the United States District Court for the Middle District
of Florida.(No. 97-00457-CV-ORL-19A), Patricia C. Fawsett,
Judge.
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Anderson, Chief Judge, and Tjoflat and Cox, Circuit
Judges.
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The opinion of the court was delivered by: Anderson, Chief
Judge.
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As amended December 12, 2000
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Linroy Bottoson was convicted of murder in the state
courts of Florida and received a death sentence. The district court denied
Bottoson's petition for a writ of habeas corpus pursuant to
28 U.S.C § 2254. We granted a certificate of appealability to review: (1)
whether Bottoson's right to a reliable sentencing hearing
was violated by the trial judge's instruction that the jury could consider
only statutory mitigating evidence, the Hitchcock v. Dugger, 481 U.S. 393,
107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), issue; and (2) whether
Bottoson was denied the constitutional right to effective
assistance of counsel at the penalty phase of his trial. *fn1
We now affirm.
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I. BACKGROUND
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On Friday October 26, 1979, the Eatonville, Florida, post office was
robbed, and money orders were taken. Catherine Alexander, the postmistress
of Eatonville, was last seen leaving the post office on that day at around
noon led by a tall African-American man. As she left, she whispered to
bystanders to call the police and to tell them that the man was stealing.
Later that day, Bottoson's wife attempted to cash one of the
missing money orders, and Bottoson and his wife came under suspicion.
Postal inspectors entered Bottoson's home on Monday October
29 and arrested him and his wife. Upon searching Bottoson's
home the next day, postal inspectors found the missing money orders and
Mrs. Alexander's shoes. Mrs. Alexander's body was found on the side of a
dirt road on the same night that the Bottosons were arrested. The victim
had been stabbed fourteen times in the back and once in the abdomen. The
medical examiner testified that she died from crushing injuries to the
chest and abdomen which were consistent with having been run over by an
automobile. The undercarriage of Bottoson's car, a brown
Chevelle, contained hair samples and clothing impressions linked to the
victim's hair and clothing. Expert evidence indicated that clothing fibers
similar to those in the victim's clothes and a tip of the victim's
fingernail were found in the trunk of Bottoson's
car.
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At trial, witnesses could not identify Bottoson as the
man seen leaving the post office with the victim but identified from a
photograph a car, a red LTD automobile, that was rented to
Bottoson at the time as the car in which the victim was
taken away. A postal inspector identified the money orders found in
Bottoson's home and traced them to the machine at the
Eatonville post office. In addition, there was evidence that
Bottoson deposited some of the stolen money orders in his
bank account. Evidence was also presented that hair samples and clothing
impressions found on Bottoson's car, a brown Chevelle, were
consistent with having come from the victim's body. Expert evidence
indicated that clothing fibers similar to those in the victim's clothes
and a tip of the victim's fingernail were found inside
Bottoson's car.
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Bottoson's former wife, who was married to him at the
time of the murder, testified that Bottoson was away from
home around noon on Friday, October 26 and that he gave her a postal money
order upon returning home. She testified that on the following Monday, she
did not see him from 1:30 p.m. until 10:00 p.m. and that he had the brown
Chevelle at the time. A jailhouse informant testified that
Bottoson confessed to the murder and indicated that the best
witness is a dead witness. He also testified that Bottoson
said that "the old bitch had a lot of fight in her."
Bottoson also gave a written confession to a minister in an
effort to obtain leniency. In the confession, Bottoson wrote
that "demon spirits" had "got on me."
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Bottoson testified at trial. He testified that on
October 26, he loaned the rental car to a man named Ernest and that Ernest
returned with the money orders. He further testified that he loaned the
brown Chevelle to Ernest on October 29, and that, when Ernest returned, he
admitted killing the victim. Ernest then drove Bottoson to
the site of the murder and Bottoson got out of the car to
look at the body. Bottoson denied making any confessions. A
jury found Bottoson guilty of first-degree
murder.
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At the sentencing hearing, the state presented an FBI agent who
testified that Bottoson was convicted of bank robbery in
1971. Bottoson's counsel presented the testimony of a
minister, the minister's wife, and Bottoson's mother, who
described Bottoson as kind, honest, respectable, caring, and
unselfishly devoted to his church.
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The jury recommended that Bottoson be sentenced to
death, and the trial judge imposed a death sentence. The Florida Supreme
Court affirmed the conviction and death sentence. See
Bottoson v. State, 443 So.2d 962, 966 (Fla.1983), cert.
denied, Bottoson v. Florida, 469 U.S. 873, 105 S.Ct. 223, 83
L.Ed.2d 153 (1984).
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In 1991, a post-conviction hearing was held pursuant to Florida Rule
of Criminal Procedure 3.850. The bulk of that hearing focused on
Bottoson's claim that his lawyer was ineffective during the
penalty phase of the trial. The court denied relief, and the Florida
Supreme Court affirmed. See Bottoson v. State, 674 So.2d
621, 625 (Fla.1996).
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Bottoson then applied for a federal writ of habeas
corpus on April 22, 1997. The District Court for the Middle District of
Florida, Orlando Division, denied relief on June 2, 1998. We subsequently
granted a Certificate of Appealability.
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II. STANDARD OF REVIEW
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Because Bottoson filed his petition in April 1997,
almost one year after the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), this case is governed by 28 U.S.C. §
2254 as amended by the AEDPA. Section 2254 provides:
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(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-
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(1) 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; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding. 28 U.S.C. § 2254(d)(1).
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A factual finding by a state court is presumed to be correct, and a
petitioner must rebut the presumption of correctness by clear and
convincing evidence. See 28 U.S.C. § 2254(e).
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A state-court decision is contrary to the Supreme Court's clearly
established precedent (1) if the state court applies a rule that
contradicts the governing law as set forth in Supreme Court case law, or
(2) if the state court confronts a set of facts that are materially
indistinguishable from those in a decision of the Supreme Court and
nevertheless arrives at a result different from Supreme Court precedent.
See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d
389 (2000).
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A state court decision involves an unreasonable application of Supreme
Court precedent "if the state court identifies the correct governing legal
rule from [Supreme Court] cases but unreasonably applies it to the facts
of the particular state prisoner's case." Williams, 120 S.Ct. at 1520. In
addition, a state court decision involves an unreasonable application of
Supreme Court precedent "if the state court either unreasonably extends a
legal principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new
context where it should apply." Id.
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III. DISCUSSION
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A. Hitchcock Claim
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Bottoson argues that the jury instructions at his
sentencing hearing violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct.
1821, 95 L.Ed.2d 347 (1987). In Hitchcock, the Supreme Court held that
instructions to an advisory jury and a sentencing judge not to consider
non-statutory mitigating factors rendered the resulting death sentence
invalid. See id. at 398-99, 107 S.Ct. at 1824-25. The sentencing judge in
that case refused to consider non-statutory mitigating evidence, and there
was no showing that the error was harmless. See id. at 398-99, 107 S.Ct.
at 1824. In this case, the sentencing judge instructed the jury as
follows:
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The mitigating circumstances which you may consider, if established by
the evidence, are these: A, that the Defendant has no significant history
of prior criminal activity. B, that the crime for which the Defendant is
to be sentenced was committed while the Defendant was under the influence
of extreme mental or emotional disturbance. C, that the victim was a
participant in the Defendant's conduct or consented to the act. D, that
the [Defendant] was an accomplice in the offense for which he is to be
sentenced but the offense was committed by another person and the
Defendant's participation was relatively minor. E, that the Defendant
acted under extreme duress or under the substantial domination of another
person. F, the capacity of the Defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law was
substantially impaired. G, the age of the Defendant at the time of the
crime.
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Both the 3.850 hearing court and the Florida Supreme Court held that
any such error in this case was harmless. See Bottoson v.
State, 674 So.2d at 622-23. We cannot say that that determination was
contrary to or involved an unreasonable application of Supreme Court law,
or resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented.
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The sentencing court in this case allowed the presentation of
non-statutory mitigating evidence and did not expressly tell the jury that
it could not consider such evidence. In his closing remarks, the
prosecutor told the jury "under the law, you all can bring in anything you
want to by way of mitigation." The prosecutor then summarized the
non-statutory mitigating evidence presented and expressly told the jury
that it could consider the evidence. The non-statutory mitigating evidence
that was presented consisted of testimony that Bottoson was
a devout church member, counseled members of the congregation, was
overheard counseling another prisoner, and was a good son. The Florida
Supreme Court weighed the non-statutory mitigating evidence presented and
found the error harmless beyond a reasonable doubt. The Florida Supreme
Court's decision was not contrary to Hitchcock, and its conclusion was
reasonable and supported by the record. We thus deny relief as to this
claim.
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B. Strickland Claim
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In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), the Supreme Court established a two-prong test that a habeas
petitioner must satisfy to maintain an ineffective assistance of counsel
claim:
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First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064.
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It is well established that a habeas petitioner must demonstrate both
deficient performance and prejudice, and that a failure with respect to
either prong constitutes a failure to demonstrate ineffective assistance
of counsel. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369-70,
88 L.Ed.2d 203 (1985). Both the 3.850 court and the Florida Supreme Court
focused primarily on the prejudice prong, and we do
likewise.
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To satisfy the prejudice prong of the Strickland test, the "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." Id. at 694, 104 S.Ct. at
2068.
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The claim of ineffective assistance of counsel that
Bottoson presents in this appeal is that his trial counsel,
Schaeffer, failed to investigate his background and to discover and
present mental health evidence at the penalty phase of
Bottoson's trial. *fn2
As noted above, the AEDPA applies in this case. Therefore, findings of
fact by the state court are presumed to be correct, and
Bottoson must rebut the presumption of correctness by clear
and convincing evidence. See 28 U.S.C. § 2254(e). Furthermore, because
this claim was adjudicated on the merits in the state court, we cannot
grant the writ of habeas corpus unless the state court's adjudication of
the claim "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; ... or resulted in a
decision that was based on an unreasonable determination of the facts in
light of the evidence presented." 28 U.S.C. § 2254(d). The standard for
effective assistance of counsel, as enunciated in Strickland v. Washington
is "clearly established" Supreme Court law. Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000). The state court in
the instant case applied the correct "reasonable probability" standard
with respect to the prejudice prong, and the facts of the instant case are
not materially indistinguishable from a decision of the Supreme Court
concluding that the "reasonable probability" standard had been satisfied;
thus, the state court adjudication in this case is not "contrary to"
Strickland. See Williams v. Taylor, 120 S.Ct. at 1519-20. Accordingly, the
issue in the instant case is whether the state court adjudication of this
claim involved an unreasonable application of Strickland. In light of the
fact that the state court here has correctly identified the governing
legal rule, i.e., Strickland 's "reasonable probability" standard, the
issue before this court is whether the state court adjudication involved
an unreasonable application of that standard. Williams v. Taylor, 120
S.Ct. at 1522.
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Thus, we begin our analysis with the state court adjudication of this
claim and application of Strickland's prejudice prong. The 3.850 court
held evidentiary hearings in April and November of 1991, consisting of a
total of about 10 days. With the record of the proceedings at trial before
him, and having personally heard all of the evidence presented during the
1991 proceeding, the 3.850 judge concluded as follows with respect to
Strickland's prejudice prong:
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In any event, this court has extensively reviewed this claim in light
of the entire record, and finds that even if counsel's performance may
have been deficient in some respects, any failure was not prejudicial
pursuant to Strickland, 466 U.S. at 668, 104 S.Ct. 2052. The mitigating
evidence now presented would not outweigh or overcome the aggravating
circumstances of this murder. Defendant's background, childhood
experiences (defendant was 41 years old at the time of trial) and
religious eccentricities do not compare to the aggravating factors that
(1) Mr. Bottoson had been previously convicted of a felony,
(2) the murder occurred during the commission of a felony, (3) the murder
was committed to avoid arrest, and (4) the murder was especially heinous
because of the kidnaping, long confinement and mode of killing of the
74-year old victim. Order Denying Motion for Post-Conviction Relief,
February 5, 1993, at 14.
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On appeal from the order of the 3.850 court, the Florida Supreme Court
addressed the merits of this claim and said the following with respect to
Strickland's prejudice prong:
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The record of the post-conviction hearing reflects that
Bottoson told Schaeffer that he had been treated for
depression in Ohio and in connection with his prior robbery conviction in
California.... The post-conviction record further shows that Sheaffer had
no personal reservations concerning Bottoson's mental
health, but in order to be certain he had him examined by two
psychiatrists. Although these were competency examinations, the
psychiatrists' reports necessarily discussed all aspects of
Bottoson's mental health. After reviewing these reports and
talking with one of the psychiatrists, Dr. Kirkland, Sheaffer concluded
that the presentation of mental health testimony would not be helpful to
Bottoson....
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Dr. Kirkland, who also testified at the post-conviction hearing, said
that Bottoson had told him of the psychiatric treatments he
had received in Ohio and California. He was aware that
Bottoson had experienced religious hallucinations, but
observed that psychiatrists are loathe to say that this would indicate
that a person is abnormal or mentally ill. Dr. Kirkland was then shown a
card reflecting Bottoson's medical diagnosis in Ohio,
obtained by the Capital Collateral Representative's investigator from
another hospital to which Bottoson's records had been
transferred. The card referred to a 1962 diagnosis of acute schizophrenic
episode with the words "discharge improved." Dr. Kirkland testified that
in 1962 this referred to a person who had had a short psychotic episode
from which he had recovered. He said that had he been provided with that
document he would not have changed his original evaluation. Dr. Kirkland
said that the information on the card together with the medical reports
which the Capital Collateral Representative was able to obtain from
California would have led him to conclude that Bottoson was
a latent schizophrenic. He explained that this was a term used to describe
a schizophrenic who had gotten better.
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Yet, even with the benefit of both the Ohio and California records,
Dr. Kirkland did not indicate that he would have testified that any
statutory mental mitigators were present. While the Capital Collateral
Representative's psychiatrist, Dr. Phillips, who examined
Bottoson eleven years after the murder, testified that both
of the statutory mental mitigators were present at the time of the crime,
the trial judge was entitled to discount his opinion....
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The evidence presented below was conflicting. However, there was
competent, substantial evidence to support the judge's findings and
conclusions. Even if we assume some deficient performance on the part of
Sheaffer, we cannot say that the evidence raises a reasonable probability
that the result would have been different if Sheaffer had introduced
mental health testimony or called witnesses to describe this
forty-one-year old man's troubled childhood. Bottoson v.
State, 674 So.2d 621, 624-25 (Fla.1996).
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As indicated above, the issue before this court is whether the
adjudication of the claim in state court resulted in a decision that
involved an unreasonable application of the Strickland prejudice
prong.
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The appropriate analysis of the prejudice prong of Strickland requires
an evaluation of "the totality of the available mitigation evidence-both
that adduced at trial, and the evidence adduced in the habeas
proceeding-in reweighing it against the evidence in aggravation." Williams
v. Taylor, 120 S.Ct. at 1515. In Williams, the Court held that the state
court adjudication involved an unreasonable application of Strickland's
prejudice prong in part because the state court failed to evaluate the
totality of the evidence. Williams, 120 S.Ct. at 1515, 1525. The Florida
Supreme Court in the instant case determined that the 3.850 court
discounted Dr. Phillips's opinion, and that it was appropriate to do so
under the circumstances. When there is conflicting testimony by expert
witnesses, as here, discounting the testimony of one expert constitutes a
credibility determination, a finding of fact. A finding of fact made by a
state court is presumed to be correct, and a habeas petitioner has the
burden of rebutting the presumption of correctness by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). As a preliminary matter, we examine
the state court's discount of Dr. Phillips's opinion pursuant to 28 U.S.C.
§ 2254(e)(1).
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First, we note that the Florida Supreme Court found that the 3.850
judge had discounted Dr. Phillips's opinion, notwithstanding the fact that
the 3.850 judge did not do so explicitly. We conclude that the Florida
Supreme Court reasonably inferred that the 3.850 judge had discounted Dr.
Phillips's opinion. The 3.850 judge personally presided over the 10-day
hearing, the bulk of which focused on this claim and counsel's effort to
demonstrate mental health mitigating circumstances. Dr. Phillips's
testimony was clearly the most significant evidence presented by
Bottoson. Dr. Phillips opined that Bottoson
suffered most of his life from a mental disease known as a
schizo-affective disorder, that Bottoson was experiencing an
acute or active phase thereof at the time of the offense, and that
Bottoson was at the time of the offense under the influence
of extreme mental or emotional disturbance, and that at the time of the
offense Bottoson's capacity to appreciate the criminality of
his conduct and conform his conduct to the requirements of the law was
substantially impaired. In other words, Dr. Phillips testified that two
statutory mitigating factors were present. Notwithstanding the obvious
significance of Dr. Phillips's opinion, the 3.850 judge, in weighing the
mitigating evidence presented during the 1991 proceedings, mentioned only
defendant's background, his childhood experiences, and his religious
eccentricities. In light of the fact that Dr. Phillips's testimony was in
conflict with the testimony of Dr. Kirkland, and in light of the fact that
the 3.850 judge explicitly stated that he had considered "the entire
record," the only reasonable inference is that the 3.850 judge did in fact
discount the testimony of Dr. Phillips, as the Florida Supreme Court found
that he did. We conclude that the finding of the Florida Supreme Court to
this effect is amply supported by reasonable inferences from the opinion
of the 3.850 court.
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Second, we inquire whether the finding of fact discounting Dr.
Phillips' opinion is entitled to the statutory presumption of correctness.
As noted, Dr. Phillips's opinion was in conflict with that of Dr.
Kirkland. Dr. Kirkland had evaluated Bottoson before trial,
and had opined that Bottoson was competent to stand trial.
Dr. Kirkland also testified at the 1991 evidentiary hearing. He expressly
disagreed with the findings of Dr. Phillips. In his testimony, Dr.
Kirkland agreed with Dr. Phillips only insofar as Dr. Kirkland also
thought that it was likely that Bottoson suffered from the
mental illness of schizophrenia. However, it is clear from Dr. Kirkland'
testimony that he believes that Bottoson's schizophrenia is
of the latent type, that is, in remission most of the time. It is also
implicit in Dr. Kirkland's testimony that the mental illness of
schizophrenia would play a motivating role in a person's commission of a
crime only if the schizophrenia were in an acute or active phase. Dr.
Kirkland explains in some detail the appropriate way one would go about
retroactively determining whether or not a person's schizophrenia was in
an acute or active phase at the time of a crime. Dr. Kirkland's road map
for such determinations would include the following: examination of the
details of the crime and the actions of the accused with a view to whether
they evidenced logical thought processes, on the one hand, or fragmented,
psychotic thought processes, on the other hand; examination of the
statements of witnesses who would have observed the accused during the
time frame of the crime to determine whether the person was experiencing
hallucinations or other indications of psychotic behavior; and examination
of the evidence to assess whether actions were motivated by normal
motivations or psychotic motivations. In our discussion below, we have
followed Dr. Kirkland's road map, and concluded that the evidence in the
instant record strongly suggests that Bottoson was not in
fact experiencing an acute or active phase of his schizophrenia during the
time frame of the crime and thus that Bottoson's latent
mental illness would likely play a much less significant role in
Bottoson's actions. Because the appropriate analysis laid
out by Dr. Kirkland points strongly to a conclusion contrary to the
opinion of Dr. Phillips, and because Dr. Kirkland expressly disagreed with
Dr. Phillips's findings, we conclude that there is support in the instant
record for the finding of fact of the state court discounting Dr.
Phillips's opinions. Accordingly, we conclude that Bottoson
has failed to rebut the presumption of correctness by clear and convincing
evidence. Therefore, the failure of the state court to consider Dr.
Phillips's opinions as part of the totality of the evidence does not
constitute an unreasonable application of Strickland's prejudice prong.
Furthermore, in our own consideration of the totality of the evidence, we
also will discount Dr. Phillips's opinions.
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We turn now to an examination of the totality of the evidence to
determine whether the adjudication of this claim in the state court
resulted in a decision that involved an unreasonable application of
Strickland's prejudice prong. As noted, in considering the totality of the
evidence, we discount the opinions of Dr. Phillips.
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We turn first to the evidence of aggravation in this case. The
sentencing judge found that Bottoson had previously been
convicted of a crime involving a threat of violence (the 1971 California
bank robbery), that the instant crime was committed during the commission
of a felony (both the robbery of the post office and the kidnaping), that
the crime was committed for the purpose of avoiding arrest, and that the
crime was especially heinous, atrocious or cruel. The facts of the instant
crime are egregious, and fall comfortably within the meaning of the
Florida aggravating circumstance "especially heinous, atrocious or cruel."
The evidence reveals a murder committed to eliminate the only witness who
could surely identify Bottoson. The murder was accomplished
by repeatedly stabbing the victim with a knife, more than 14 times. Then,
with the victim still alive, the murder was completed by running over the
victim with an automobile, resulting in crushing injuries to the chest and
abdomen, from which the victim finally died. The victim had been kidnapped
and kept captive for three days. In closing argument, the prosecutor asked
the jury to infer that the victim was kept during this time in the trunk
of Bottoson's car. It is certain that the victim spent some time in the
trunk of that car. Clothing fibers and the right little fingernail, both
linked to the victim, were found in the trunk. There was testimony that
the trunk reeked of the smell of urine.
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We now summarize the mitigating evidence which is to be weighed
against the foregoing aggravating circumstances. At the penalty phase of
the 1981 trial, counsel for Bottoson presented four
witnesses, a minister and the minister's wife, a correctional officer, and
Bottoson's mother. The minister and his wife explained
Bottoson's dedication to the church and its members, as well
as his nonviolent nature. The minister testified that
Bottoson was the assistant pastor of his church, that the
minister handled the service on the second and fourth Sundays of the
month, and that Bottoson carried the service on the first
and third Sundays. The congregation appreciated Bottoson and
approved of his handling of the services. He testified that
Bottoson devoted himself unselfishly to the church. He also
testified that Bottoson had never exhibited any violent
tendencies; rather, he was kind at all times. Finally, the minister
expressed his serious doubts that Bottoson committed this crime.
Bottoson's mother testified that Bottoson had
never hurt anybody, and had never threatened anybody. She testified that
he went into the ministry at 13 to 14 years old, and was ordained at 14 or
15. She testified that he had six children, and begged for mercy. Counsel
for Bottoson also called a correctional officer from the
jail that housed both Bottoson and Pertrell Kuniara (a
fellow inmate who had testified that Bottoson had confessed
to him, which Bottoson disputed in his own trial testimony).
The officer testified that he had overheard that very morning Kuniara
telling a minister that the prosecutor came to see him yesterday and that
he, Kuniara, was going to be released from jail. This of course tended to
impeach Kuniara's testimony that Bottoson had confessed, and
tended to support counsel's effort at sentencing to persuade the jury that
there was a lingering doubt about Bottoson's
guilt.
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At the penalty phase of the 1981 trial, counsel for
Bottoson brought out, on cross-examination of the FBI
officer who had investigated the 1971 California bank robbery, the fact
that the California judge at sentencing had recommended psychiatric
evaluations for Bottoson. All of the other mental health
mitigating evidence was adduced at the 1991 evidentiary hearing in the
3.850 court, and can be summarized as follows. In 1962,
Bottoson attempted to commit suicide, and was hospitalized
for approximately two weeks, was diagnosed as having had an acute episode
of schizophrenia, and was discharged as improved. The hospital records
with respect to this incident were destroyed by fire, and the only
evidence in the record is a card revealing the foregoing, which was
uncovered from another Cleveland institution by the diligent efforts of
Collateral Counsel. Bottoson's brother testified at the 1991
hearing that Bottoson's attempted suicide was triggered by
Bottoson's concern about, and inability to deal with, the situation he was
then facing with respect to his very severely retarded young son. In 1971,
Bottoson was evaluated by a psychiatrist in California, Dr.
Verin, after having been arrested for bank robbery in Fresno, California.
Dr. Verin's report indicated that Bottoson heard a voice
telling him to rob the bank. Dr. Verin's conclusion was "paranoid
schizophrenia, latent type," and he recommended further psychological
attention.
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The foregoing is the only evidence in the instant record of
Bottoson's having experienced an acute or active psychotic
episode. Indeed, the 1962 Cleveland, Ohio, incident may be the only one.
The diagnosis in the 1971 California incident was schizophrenia, latent
type, although there was evidence at that time that Bottoson
was hearing voices telling him to rob the bank. There is no clear evidence
in the record on appeal that Bottoson experienced any other
acute or active psychotic episode.
|
| [56] |
However, there is considerable evidence that several laymen (i.e., not
medical experts) over the years have labeled Bottoson's
behavior as strange or bizarre. The gist of this evidence is that Bottoson
was, from a very young age, unusually preoccupied with religion. Even as a
pre-teen, he would accompany his mother as they preached on street
corners, Bottoson carrying along his little soap box as he
preached. Bottoson was ordained as a minister in the Church
of God in Christ at the age of perhaps 15. In his later teens, he
continually worked (though apparently without compensation) as an
assistant to several ministers, and preached sermons from time to time.
One member of a congregation, who testified at the 1991 hearing,
remembered two occasions when Bottoson preached; she thought
his preaching was incoherent. Several others related bizarre incidents
which led them to believe that Bottoson needed psychiatric
care. For example, Reverend Robinson testified at the 1991 hearing that
Bottoson assisted in his church after he was ordained, and
would preach whenever Reverend Robinson would let him. He related that one
day when no one was in the church, Reverend Robinson found him lying down
on the altar, praying and stomping and beating the floor and telling the
Lord of his need and asking the Lord to come bless him. Reverend Robinson
indicated that he called Bottoson by name, whereupon
Bottoson stopped, got up, and was calm. Reverend Robinson
thought that the incident was strange, but did not question
Bottoson's mental health. From an early age,
Bottoson apparently believed that God had given him the gift
of healing, although such beliefs were not uncommon in the Church of God
in Christ. This kind of belief was known at the time of trial to the trial
judge, *fn3
Bottoson's attorney, and Dr. Kirkland who examined
Bottoson with respect to competency to stand
trial.
|
| [57] |
Dr. Kirkland referred to these beliefs and to Bottoson's
religious hallucinations both in a 1981 report to the trial judge and in
his testimony at the 1991 evidentiary hearing. In his 1981 evaluation of
Bottoson, Dr. Kirkland learned that Bottoson
felt he had special powers of healing and that he might be able to raise
people from the dead. Dr. Kirkland testified in 1991 that his evaluation
of Bottoson in 1981 revealed that Bottoson was
dressed appropriately, his actions were appropriate (neither too busy nor
lethargic), he was oriented to his surroundings, his emotional tone or
affect was appropriate (not depressed or euphoric), his thought processes
were appropriate and logical. Dr. Kirkland testified that the issue of
hallucinations that have a connection to religion are somewhat difficult
for the psychiatrist. He testified that psychiatrists are loathe to say
that such religious practices, if supported by others, are psychotic, even
if they have that appearance.
|
| [58] |
With the evidence of Bottoson's 1962 hospitalization and
Dr. Verin's 1971 diagnosis of latent schizophrenia in hand, Dr. Kirkland
testified that he would likely consider Bottoson to be a
person suffering from the mental disease of schizophrenia, though in
remission. *fn4
It is clear from Dr. Kirkland's testimony that such a person would
sometimes suffer from symptoms of the disease, and sometimes not. That is,
such a person would have acute or active stages of the disease, and times
of remission.
|
| [59] |
We note, but discount pursuant to the state court finding, that Dr.
Phillips drew a causal and temporal connection between
Bottoson's mental disease and his actions in committing the
instant crimes, assuming that Bottoson was suffering from an
acute or active phase of schizophrenia at the time. Other than Dr.
Phillips's bald conclusion to this effect, there is only very weak
evidence in the record on appeal that Bottoson was in fact
experiencing an acute or active episode of schizophrenia at the time. We
summarize the evidence which might tend to point in the direction of acute
schizophrenia as follows. There is the fact that the instant egregious
crime of violence is inconsistent with Bottoson's usually
nonviolent demeanor. There is also the fact that Bottoson
was at the time overdrawn at the bank in the amount of about $6,000, and
the inference therefrom of some stress. *fn5
There is also Bottoson's written "confession" delivered to
the prosecutor through the ministers, in which he asserted "demon spirits"
had "got on me" at the time. However, that "confession" was made
approximately a year after the crime, and was an obvious attempt to seek
leniency (i.e., a 14-year term to run concurrently with his federal
sentence). Finally, there are the letters written by
Bottoson around the time of the trial indicating his belief
that the Lord had given him special powers (e.g., healing and even raising
the dead). The significance of this evidence has to be weighed, keeping in
mind that Bottoson had apparently held such beliefs at least
since his late teens (and thus are probably consistent with latent stages
of his mental illness), and that Dr. Kirkland testified that psychiatrists
are loathe to label such religious practices as psychotic, if they are
supported by others (and there is evidence here that such beliefs are held
by others in Bottoson's church).
|
| [60] |
On the other hand, there is considerable evidence that
Bottoson was not suffering from an acute episode of
schizophrenia at the time. There is evidence that Bottoson
planned to rob the Eatonville Post Office several days in advance. On
Friday, October 26, 1979, Bottoson left his office at about
10:30 a.m., drove the 25 miles to Eatonville, robbed the Post Office which
he had "cased" several days before, and kidnaped the Postmistress victim
in the instant case. From the time of the kidnapping on Friday, until
Bottoson's arrest at 10:50 p.m. Monday evening, October 29,
the state's witnesses trace Bottoson's actions, accounting
for the greatest portion of the intervening time, but leaving several gaps
unaccounted for, including the period of time during which the medical
examiner testified that death probably occurred, namely between 7:00 p.m.
and 11:00 p.m. on that Monday, October 29, 1979. The jury obviously
inferred from the state's evidence that Bottoson's actions were careful
and premeditated, that he successfully hid the live kidnapping victim for
three days, while Bottoson himself made appearances before
numerous witnesses (his wife, her friend, Ms. Sheard, the church
congregation, persons he saw on the twenty-four hour plus visit and
wedding in Macon, and an employee at his office), all the while acting as
if nothing had happened. None of the numerous people who saw
Bottoson during the crucial four days testified that he was
having hallucinations or gave any other indication that he was
experiencing an acute episode of schizophrenia. There was no such
testimony at trial or at the 1991 evidentiary hearing. To the contrary,
Bottoson's former wife, who was with him for most of the
time during the crucial three to four days, testified repeatedly that
there was nothing about his behavior that was out of the ordinary, nothing
to suggest that he was carrying around some great weight. Moreover, the
accounts given by defendant of the events of the those crucial days,
including the account given in his trial testimony, were delivered in a
logical, articulate manner. The version of the events given by
Bottoson in his trial testimony very carefully account for
the evidence which Bottoson knew the state had (e.g., that
the murder weapon, the brown Chevelle, belonged to him and he was found in
possession of the money orders, that the victim's shoes and the knife
which was probably used to stab the victim were found on the porch of his
house). In other words, Bottoson's trial testimony was
reasonably viewed as a careful and calculated attempt to create an
alibi.
|
| [61] |
To assist in our assessment of the extent to which the evidence
suggests that Bottoson was experiencing an acute or active
episode of schizophrenia during the time frame of the offense, we follow
the road map laid out in Dr. Kirkland's testimony. First, we examine the
details of the crime and the actions of the accused with a view to whether
they evidenced logical thought processes or fragmented, psychotic thought
processes. As indicated above, the details of the crimes and the evidence
of Bottoson's actions suggest, not fragmented or psychotic
thought processes, but rather careful and logical planning.
Bottoson planned several days in advance to rob this
particular post office, apparently planning to steal money orders. He
implemented the plan calmly. Bottoson successfully hid the
kidnapping victim for three days, while he himself appeared without the
kidnapping victim before numerous witnesses and for extended periods of
time, all the while behaving normally and without raising any suspicions.
On Saturday afternoon, he exchanged the red LTD rental car he had used in
the robbery and kidnapping for a blue LTD, claiming mechanical
difficulties. Bottoson's actions seem to have been carefully
planned and logically directed toward the aim of hiding the victim and
concealing his crimes. Although it was obviously not smart to cash the
money orders (or indeed to commit the crimes themselves), his actions do
not appear to be loose or fragmented, as Dr. Kirkland described psychotic
thought processes, but rather appear logical and goal
directed.
|
| [62] |
Second, we examine the statements of witnesses who would have observed
the accused during the time frame of the crime to determine whether they
observed hallucinations or other indications of psychotic behavior on the
part of Bottoson. The eyewitnesses to the robbery and
kidnapping testified at trial and pointed to no strange or bizarre
behavior on the part of Bottoson as the robbery and
kidnapping unfolded. Nor was there any such testimony at the 1991
evidentiary hearing. Bottoson and his wife cashed some of
the money orders on Friday afternoon, ate dinner together and watched TV
that evening. Bottoson and his wife spent the next morning,
Saturday, October 27, picking up his wife's friend, Mrs. Sheard at the
airport. Bottoson and his wife spent about three hours that
Saturday evening at church, and then left with his wife and Mrs. Sheard
around midnight and traveled to Macon, Georgia, for a wedding, returning
only early in the morning hours of Monday, October 29. None of the
numerous people who saw Bottoson during this crucial period
of time testified that he was having hallucinations or that he gave any
other indication that he was experiencing an acute episode of
schizophrenia. There was no such testimony either at trial or at the 1991
hearing. To the contrary, the evidence is that Bottoson's
behavior was normal. Bottoson has failed to adduce any
testimony from persons in position to observe him that he was experiencing
an acute or active episode of schizophrenia during the crucial three to
four day period.
|
| [63] |
Finally, following Dr. Kirkland's road map, we examine the evidence to
assess whether Bottoson's actions were motivated by normal
motivations or psychotic motivations. There is clear evidence of "normal"
motivations, i.e., non-psychotic motivations. There is evidence that the
robbery was motivated by a desire to obtain money orders to alleviate
Bottoson's overdrawn status. There is direct evidence that
Bottoson's murder of the kidnapping victim was motivated by
a desire to eliminate the witness who could surely identify
him.
|
| [64] |
While there is some evidence suggesting the possibility that
Bottoson was experiencing an acute or active episode of
schizophrenia, *fn6
stronger evidence suggests that he was not. Under these circumstances, we
cannot conclude that the decision of the state court in this respect was
based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. See 28 U.S.C. §
2254(d)(2). Thus, accepting the fact that Bottoson was not
experiencing an acute or active episode of schizophrenia during the time
frame of the offense, we cannot conclude that the state court was
unreasonable in determining that Bottoson's latent mental
illness played an insignificant role with respect to the motivation of
Bottoson's actions in committing the instant
crimes.
|
| [65] |
Upon consideration of the entire record, the state court concluded
that Bottoson had failed to satisfy Strickland's prejudice
prong, i.e., that Bottoson had failed to show that there is
a reasonable probability that, but for counsel's deficient performance,
the result of the sentencing phase would have been different. For the
foregoing reasons, we cannot conclude that the adjudication of this claim
in the state court resulted in the decision that involved an unreasonable
application of Strickland's "reasonable probability"
standard.
|
| [66] |
AFFIRMED. *fn7
|
| |
|
| |
Opinion Footnotes |
| |
|
| [67] |
*fn1
We granted a certificate of appealability both on whether
Bottoson was denied effective assistance of counsel in the
sentencing phase of the trial and on whether Bottoson's
trial counsel was prevented from providing effective assistance of counsel
because of conditions created by statute or state law, including a
statutory fee cap. However, we will consider these two issues together as
part of Bottoson's claim for ineffective assistance of
counsel at the penalty phase of his trial. In his brief on appeal,
Bottoson asserts a constitutional challenge to the
application of AEDPA to his case. However, in his application to this
court for a certification of appealability, he did not seek leave to
present this issue, and thus this court did not grant a certificate of
appealability with respect to it. Under these circumstances, we do not
address this issue. Murray v. United States, 145 F.3d 1249 (11th
Cir.1998).
|
| [68] |
*fn2
Bottoson also argues that his counsel was ineffective
generally for failure to adequately prepare for the penalty phase, and
that the statutory fee cap in existence at the time of the trial prevented
his attorney from rendering effective assistance. However, in light of our
holding that Bottoson has failed to satisfy the prejudice
prong, we find no merit to these claims.
|
| [69] |
*fn3
Bottoson wrote several letters to the trial judge to this
effect.
|
| [70] |
*fn4
We note that Dr. Verin's diagnosis of schizophrenia, latent type, is
consistent with Dr. Kirkland's opinion. Moreover, the medical records with
respect to the California incident indicate that Bottoson
was considered mentally competent at the time, was presently functioning
in an acceptable manner, and was not sufficiently ill to be
hospitalized.
|
| [71] |
*fn5
Apparently Dr. Phillips's belief that Bottoson was
experiencing stress is the primary basis for Dr. Phillips's belief that
Bottoson was experiencing an acute or active episode of
schizophrenia. Other than the fact that Bottoson was
overdrawn at the bank, we find very little other evidence in the record
that Bottoson was laboring under any unusual stress at the
time. According to his then wife's testimony, his behavior at the time was
completely normal. She had no understanding that they were in financial
trouble. Bottoson and his wife had just recently bought a
house and moved in. Bottoson had just recently started a
business of his own. He was active at the time as assistant pastor of
Reverend Johnson's church. Although Dr. Phillips indicated there were
marital difficulties at the time, there is no such suggestion in the then
wife's testimony. Rather, she testified that she divorced
Bottoson about a year after the crime, and that the divorce
was triggered by the crime.
|
| [72] |
*fn6
Probably the strongest evidence is the fact that this egregious and
violent crime seems to be inconsistent with the non-violent, kind demeanor
which Bottoson has usually presented.
|
| [73] |
*fn7
Appellee's motion to strike Appellant's Supplemental Brief is
denied.
|
