IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-8575
ROBERT MADDEN Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _________________________________________________
Appeal from the United States District Court for the Western District of Texas
_________________________________________________ (March 29, 1994)
BEFORE JONES, DUHÉ, and WIENER, Circuit Judges.
Wiener, Circuit Judge:
In this petition for writ of habeas corpus, Petitioner-
Appellant Robert Madden challenges the constitutionality of the
Texas special issues as applied to him, as well as comments made by
the state in closing arguments. We conclude that Madden's evidence
does not fall within the ambit of Penry and thus he was not
entitled to additional jury instructions. Similarly, we find no
merit in Madden's contentions that various comments by the
prosecutor deprived him of a fair trial. Accordingly, we affirm
the denial of his habeas petition. I
FACTS AND PROCEEDINGS
Madden was charged with the capital murder of Herbert Megason,
whose body, found some four to five days after his death, was
hidden in a creek on his weekend place in the country. Megason had
been shot with a .22 caliber pistol. Also found in the creek was
the body of Megason's son, Gary, who apparently had been shot in
the back with a shotgun and whose throat had been slashed. Gary
also had defense wounds from a knife on his hands and forearm.
Each man's feet were bound, as were Gary's hands.
Madden was apprehended when he signed his own name to
Megason's Texaco credit card. In addition, he admitted to Donald
Jeffries, a new acquaintance, that he had stolen the Megasons'
truck. He also had in his possession various items belonging to
Megason. Most damaging, however, was his possession of the murder
weaponsSQthe .22 pistol, the .22 Winchester rifle, and a
bloodstained knifeSQwhich he attempted to sell to Jeffries.
Based on this evidence, Madden was convicted of the murder of
Herbert Megason. The judge then submitted to the jury the first
two special issues:
(1) was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased would result? and
(2) is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
The jury answered these questions in the affirmative; accordingly,
the judge sentenced Madden to death.
2 Madden's conviction was appealed automatically to the Texas
Court of Criminal Appeals, which affirmed both the verdict and the
sentence.1 Following this affirmance and denial of certiorari by
the U.S. Supreme Court,2 Madden sought a writ of habeas corpus in
state court, which transmitted the case to the Texas Court of
Criminal Appeals without findings of fact or conclusions of law.
That court denied relief, and Madden pursued his habeas petition in
federal court.
The district court likewise denied all habeas relief, although
it granted Madden's request for a certificate of probable cause.
The court reasoned that, "[a]lthough Mr. Madden presents evidence
that is more analogous to Penry than other cases before the Fifth
Circuit, there is not substantial evidence that the criminal
conduct was attributable to the learning disorder, mental illness,
or substance abuse."
II
ANALYSIS
A. Standard of Review
"In considering a federal habeas corpus petition presented by
a petitioner in state custody, federal courts must accord a
presumption of correctness to any state court factual findings. .
. . We review the district court's findings of fact for clear
1 Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990). 2 Madden v. Texas, 111 S.Ct. 1096, 1433 (1991).
3 error, but decide any issues of law de novo."3 Evaluation of a
petitioner's constitutional challenge to the Texas special issues
as applied to him is, of course, an issue of law.
B. Penry Claim
Madden first challenges the constitutionality of the special
issues as applied to him, insisting that these questions failed to
give effect to his mitigating evidence of mental illness, dyslexia,
and substance abuse. In support of his argument, he relies on the
Supreme Court's decision in Penry v. Lynaugh,4 in which the Court
held that the special issues did not give effect to the
petitioner's evidence of mental retardation and abused childhood to
the extent these facts mitigated his culpability for the crime. We
review Madden's claim under Penry and the subsequent cases that
have clarified its holding.5
In Penry, the Court reiterated that the Eight Amendment
requires an "individualized sentencing determination" by the
sentencer;6 one that ensures that "the sentence imposed at the
penalty stage . . . reflect[s] a reasoned moral response to the
defendant;s background, character, and crime."7 Thus, the
3 Barnard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992)(citations omitted); see 28 U.S.C. § 2254(d). 4 492 U.S. 302 (1989). 5 See, e.g., Johnson v. Texas, 113 S.Ct. 2568 (1993); Graham v. Collins, 506 U.S. ___, 113 S.Ct. ___, 122 L.Ed.2d 260 (1993), Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992)(en banc). 6 Penry, 492 U.S. at 316. 7 Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987)).
4 constitutionality of the Texas scheme, which considers mitigating
evidence solely through the special issues, "turns on whether the
enumerated questions allow consideration of particularized
mitigating factors."8
Ultimately, the Court in Penry concluded that the special
issues failed to give full effect to Penry's mitigating evidence of
mental retardation and abused childhood. Specifically, although
Penry's mitigating evidence reduced his culpability for the crime,
the jury could not express its reasoned moral response through the
special issues as submitted. Penry's mitigating evidence was
relevant on the first issueSQdeliberatenessSQbut had only a marginal
mitigating effect. In addition, the Court emphasized that Penry's
evidence on the second issue was a "double edged sword": it
mitigated his responsibility because he was generally less able to
control his behavior than an average person; at the same time,
because he could never learn from his mistakes, he posed a future
danger to the community. Moreover, as we explained subsequent to
Penry, this evidence rendered Penry less culpable "because these
characteristics were due to uniquely severe permanent handicaps
with which the defendant was burdened through no fault of his
own."9
1. Personality Disorder
At the punishment phase of the trial, clinical psychologist
Dr. Jim Whitley, who had examined Madden twice, testified that
8 Jurek v. Texas, 428 U.S. 262, 272 (1976). 9 Graham, 950 F.2d at 1029.
5 Madden suffers from a personality avoidance disorder, which Dr.
Whitley characterized as a "clinical mental illness" that impairs
Madden's ability "to think and react in a logical manner."
Madden's particular personality disorder impairs his ability to
interact with others and form relationships, causing him to run
from conflict. Thus, the testimony established that a person with
a personality avoidance disorder was generally not violent. The
disorder does not, however, prevent Madden from understanding the
wrongfulness of his actions.
According to Dr. Whitley, the disorder also makes Madden more
susceptible to substance abuse. In Madden's case, Dr. Whitley
concluded that the combined effects of the personality disorder and
the long term drug abuse had caused Madden to suffer diminished
capacity. Diminished capacity, in psychological terms, refers to
a deterioration or distortion of one's ability to make logical and
rational decisions.
The first inquiry in a Penry claim is whether the mitigating
evidence is relevant. Phrased differently, does the evidence
implicate the basic concern of Penry "that defendants who commit
criminal acts that are attributable to a disadvantaged background,
or to emotional and mental problems, may be less culpable than
defendants who have no such excuse."10 In Penry, the defendant's
mental retardation rendered him "less able than a normal adult to
control his impulses or to evaluate the consequences of his
10 Penry, 492 U.S. at 319.
6 conduct."11 Thus, there was a clear nexus between Penry's handicap
and his criminal act; the criminal act was attributable to his
severe permanent handicap. The testimony of Dr. Whitley
established that Madden has an emotional disorder specifically, an
anti-social personality. The relevance of this disorder to
Madden's crime, however, is less than clear.
Certainly, the evidence establishes generally that persons
with such personality disorders are more likely to use drugs, and
that drug users are more likely than non-users to engage in violent
behavior. There is no evidence, however, that Madden was
intoxicated at the time of the murders. To the contrary, there is
evidence that he had finally gained some control over his
addiction. Thus, it cannot be said that Madden's tendency towards
substance abuse is directly responsible for the instant crime,
i.e., that the crime is attributable to such abuse in the Graham
sense.
Conspicuously absent from the testimony of Dr. Whitley is any
general statement that a person with a personality avoidance
disorder is more aggressive or violent than an unafflicted person,
or any specific statement that Madden is. To the contrary, Dr.
Whitley testified that victims of such a disorder are less
aggressiveSQexcept when they are intoxicated. Also noticeably
absent in this testimony was evidence that Madden was incapable of
controlling his impulses or unable to distinguish right from wrong.
Rather, Dr. Whitley specifically stated that a personality disorder
11 Id. at 322.
7 does not impair one's ability to understand the wrongfulness of his
actions.
Based on this evidence, we conclude that there is
insubstantial evidence that Madden's criminal actions are
attributable to his anti-social personality. Thus, the state court
did not err by refusing to give additional instructions.
2. Learning Disability
Madden's learning disability does not fall within the ambit of
Penry. In Graham, we emphasized that Penry's evidence "was
strongly mitigating because these characteristics were due to the
uniquely severe permanent handicaps with which the defendant was
burdened through no fault of his own, mental retardation, organic
brain damage, and an abused childhood."12 By imposing the
requirement that a handicap be "uniquely severe," we acknowledged
that not all organic brain damage will establish a Penry claim;
rather, organic brain damage is an example of the type of evidence
that we require as a minimum for a challenge under Penry.
Although dyslexia may be defined as an organic brain impairment, it
is not so "uniquely severe" that it rises to the level of a Penry
claim.
3. Troubled Childhood
Madden presented evidence of a troubled childhood, including
abuse while an infant. His father left his mother when Madden was
two and subsequently remarried. Madden's step-father adopted him
when the boy was five years old, and there is no allegation that
12 Graham, 950 F.2d at 1029.
8 the adoptive father abused Madden. There is, in fact, evidence
that Madden's adoptive father was a very concerned parent.
In Barnard v. Collins, we recognized that an abused childhood
could rise to the level of a Penry claim if the traumatic events
caused psychological effects to which the criminal conduct was
attributable. Although Dr. Whitley's testimony linked Madden's
personality disorder to his childhood, we have concluded above that
his personality disorder is not linked causally to the criminal
act. As there is no other evidence regarding the effect of this
short-lived abuse on Madden, he fails to produce substantial
evidence that his childhood abuse (if "abuse" it truly was) had
such a psychological effect on him that it led to the criminal act.
We conclude, then, that Madden's reliance on his personality
disorder, his learning disability, and his troubled childhood as
mitigation in support of his Penry claim, is misplaced. To grant
relief on a Penry claim, we must determine (1) that the proffered
evidence was constitutionally relevant mitigating evidence, and, if
so, (2) that the proffered evidence was beyond the "effective
reach" of the jurors.13 Thus rejection of a Penry claim does not
necessarily mean in every case that the jury was able to evaluate
the proffered evidence fully and fairly. A Penry claim rejection
may also be based on the failure of the evidence relied upon by the
petitioner to be constitutionally relevant mitigating evidence. As
we find such failure here, we need not and therefore do not
13 See Johnson, 113 S.Ct. at 2268-69 (employing two-part analysis and rejecting Petitioner's Penry claim predicated on youth).
9 consider the ability of the jury to consider under the Texas
special issues the evidence pointed to by Madden.14
4. Prosecutor's Statements
Madden also insists that the jury could not consider the
mitigating evidence because (1) the court failed to define the word
"deliberately" in the first special issue and (2) the prosecutor
suggested that the jurors were not to consider the evidence and
that they were not there to determine whether Madden lived or died.
As we have held that Madden's evidence was irrelevant, these
arguments are moot. In any event, we have held consistently that
the word deliberately is clear to the average juror and needs no
additional definition. Concerns as to any possible ambiguity arise
only when the special issues have not given full effect to the
mitigating evidence. Moreover, as Madden failed to raise the
second argument before the district court, he cannot raise it for
14 Nonetheless, if we assume arguendo (without granting) that some of the evidence pointed out by Madden is constitutionally relevant mitigating evidence, we still reach two alternative conclusions, either of which would suffice as a reason to reject his Penry claims. First, we conclude that in this case the evidence of Madden's personality disorder, learning disability, and troubled childhood were within the "effective reach" of the jury, as such evidence could be considered by the jury to some extent under one of the special issuesSQparticularly the issue of "future dangerousness." Second, we conclude that Madden's claims in that regard are barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), as interpreted by the Supreme Court in Graham v. Collins, 113 S.Ct. 892 (1993). As none of Madden's mitigating evidence was truly doubled-edged in a way that Penry's evidence was, and as Madden's evidence could be considered by the jury under the first or second special issue, the relief Madden seeks was not "dictated" by precedent and thus constitutes a "new rule" under Teague.
10 the first time on appeal.15
C. Madden's Failure to Testify
Madden also challenges the propriety of the prosecutor's
statements regarding his failure to testify. The statement at
issue, made during the guilt-innocence phase, is as follows:
Then, also, the defense will argue that why in the world would someone who killed, murdered two people and stole this credit card sign their own name to the Texaco card? I don't know that; you don't know why. There's only one person here that knows why, and there's only one person here that knows the answer to all of these questions.
The Texas Court of Criminal Appeals held that this passage
represented an impermissible reference to Madden's failure to
testify, but concluded that the reference was harmless beyond a
reasonable doubt.16 The district court, relying on Milton v.
Procunier,17 held that the statement, taken in context, was not a
comment on defendant's failure to testify. Alternatively, the
district court concluded that, if there was error, it was harmless.
When reviewing a claim that the prosecutor impermissibly
commented on the defendant's failure to testify, we ask "whether or
not the [prosecutor's] statement was manifestly intended or was of
such character that a jury would naturally and necessarily take it
15 Alexander v. McCotter, 775 F.2d 595, 603 (5th Cir. 1985)(citations omitted). 16 Madden, 799 S.W.2d at 699-700. 17 744 F.2d 1091, 1094-95 (5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985)(prosecutor stated there was only one person who could tell the jury about the crime, referring to an eye- witness).
11 to be a comment on the failure of the accused to testify."18 We
cannot agree with the district court that the prosecutor's
statement was not a comment on Madden's failure to testify. A
review of Milton convinces us that it is not dispositive, as the
prosecutor there was clearly referring to the existence of an eye-
witness. In contrast, the prosecutor's statement in the instant
case could apply only to Madden, and it undeniably directs the
jury's attention to Madden's silence. Consequently, we agree with
the Texas Court of Criminal Appeals that the statement was an
impermissible comment on Madden's failure to testify.
We also agree with the state and district courts that such
error is harmless under Chapman v. California,19 as it would be
under Brecht v. Abrahamson20 and Kotteakos v. United States.21 The
statement was made in connection with Madden's signature of his own
name on Megason's Texaco cardSQa mistake which led to his capture.
Admittedly, the card also suggested Madden's guilt as it tended to
place him at the scene of the crime and implicate him in the
robbery of the victim. There was, however, other evidence of a
similar nature (Madden's possession of Megason's tool box and
watch; his admission that he stole Megason's truck) and evidence of
a far more damaging nature (possession of all three murder
18 United States v. Wilson, 500 F.2d 715, 721 (5th Cir. 1974), cert. denied, 420 U.S. 977 (1975); see Milton, 744 F.2d at 1095. 19 386 U.S. 18, 21-26 (1967). 20 113 S.Ct. 1710 (1993). 21 328 U.S. 750 (1946).
12 weapons).
In addition, the prosecutor's statement was made in
anticipation of the defense's argument that a guilty man would not
sign his own name, thereby leading police to him. The defense did
indeed make this argument, asking rhetorically in closing why the
defendant would use his own name. Accordingly, we hold that the
error was harmless beyond a reasonable doubt and does not require
reversal.
D. Jury Instructions
Finally, Madden insists that the court's failure to instruct
the jury as to the parole consequences of a life sentence, after
the possibility of parole was raised by the prosecutor in closing
arguments, biased the jury in favor of a death sentence.
Specifically, Madden refers to the prosecutor's statement that:
[The second special issue] talks of acts of violence, not murder. They can be assaults; they can be anything, but he is a ticking timebomb. And if we don't take him off the streets permanently by answering these questions yes, who will be next in that path? . . . And what we must do here is protect ourselves and our families from people like Robert Madden.
In addition, Madden insists that the court compounded this error by
instructing the jury that it was not to consider or discuss the
possibility of parole or the length of time required to satisfy a
sentence of life imprisonment.
Madden concedes that an instruction on parole is not
constitutionally mandated in capital cases.22 He insists, however,
22 Andrade v. McCotter, 805 F.2d 1190 (5th Cir.), cert. denied, 475 U.S. 1112 (1986).
13 that such an instruction is necessary in the instant case because
of the "facts which created a special hazard in relation to the
question of parole." We cannot agree, however, that the statements
of the prosecutor or the court created a special hazard. The only
potential reference to parole is the plea to take Madden "off the
streets permanently." We decline to interpret this statement
relating to Madden's future dangerousness as a veiled reference to
release on parole. Doing so would require a strained manipulation
of one euphemistic phrase that never even mentions the word parole
or any synonym for it. Neither will we interpret the trial court's
instruction not to consider the possibility of parole as an
improper reference.
Madden also challenges the failure to give a parole
instruction on equal protection grounds. He insists that the
failure to give such an instruction in a capital case, compared to
the requirement of a parole instruction for non-capital cases,
violates the Equal Protection Clause. He admits that normally
there is a rational basis for the distinction, but contends that
this basis was destroyed by the prosecutor's statements and the
court's instructions. As we have rejected Madden's argument that
the prosecutor and the trial court impermissibly implicated
consideration of parole, his equal protection argument is moot.
III
CONCLUSION
Despite a valiant attempt by Madden's counsel to elevate
evidence of the defendant's personality disorder, cum dyslexia, cum
14 drug addiction to the level of a Penry violation, we conclude that
there is no constitutionally relevant mitigating evidence that
Madden's criminal actions are attributable to these problems.
Accordingly, there was no need for additional instructions. Having
concluded that the evidence was not relevant to Madden's moral
culpability, his related arguments that the jury could not consider
this evidence must fail. Likewise, Madden's challenge to the
prosecutor's impermissible reference to the defendant's failure to
testify fails, as we conclude that the error was harmless in light
of the other evidence. Finally, we reject Madden's claim that the
prosecutor and trial court impermissibly interjected the issue of
parole into the sentencing phase. We decline the tortuous
interpretation necessary to reach that conclusion.
For the foregoing reasons, the district court's denial of the
petition for writ of habeas corpus is
AFFIRMED.