Bottoson v. Moore ( 2000 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ NOV 29 2000
THOMAS K. KAHN
No. 98-2886 CLERK
________________________
D. C. Docket No. 97-457-CIV-ORL-19
LINROY BOTTOSON,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
Secretary, Florida Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 2000)
Before ANDERSON, Chief Judge, TJOFLAT and COX, Circuit Judges.
ANDERSON, Chief Judge:
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 (1987), issue; and (2) whether Bottoson was denied the constitutional
right to effective assistance of counsel at the penalty phase of his trial.1 We now
affirm.
I. BACKGROUND
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
1
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).
2
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.
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
3
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.
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.”
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
4
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.
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.
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 (1984).
In 1991, a postconviction 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).
5
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.
II. STANDARD OF REVIEW
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:
(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 --
(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
(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). 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).
6
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 (2000).
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, 529 U.S. at __, 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.III. DISCUSSION
A. Hitchcock Claim
7
Bottoson argues that the jury instructions at his sentencing hearing violated
Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987). In Hitchcock, the
Supreme Court held that instructions to an advisory jury and a sentencing judge not
to consider nonstatutory 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 nonstatutory 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:
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.
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
8
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.
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 nonstatutory 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.
B. Strickland Claim
9
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the
Supreme Court established a two-prong test that a habeas petitioner must satisfy to
maintain an ineffective assistance of counsel claim:
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. 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 (1985). Both the 3.850 court and the Florida Supreme Court focused primarily
on the prejudice prong, and we do likewise.
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.
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
10
to discover and present mental health evidence at the penalty phase of Bottoson’s
trial.2 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, ___ U.S. ____, 120 S.Ct. 1495, 1511-12 (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
2
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.
11
adjudication in this case is not “contrary to” Strickland. See Williams v. Taylor,
__ U.S. at ___, 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, __ U.S. at ___,
120 S.Ct. at 1522.
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:
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. 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
12
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.
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:
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. ...
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
13
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.
...
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. ...
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). 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.
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, __ U.S. at ___, 120 S.Ct.
14at 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).
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
15
presented by Bottoson. Dr. Phillips opined that Bottoson suffered most of his life
from a mental disease known as an schizoaffective 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.
16
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
17
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.
18
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.
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
19
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.
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 apreciated 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,
20
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.
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
21
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.
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.
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,
22
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
23
time of trial to the trial judge,3 Bottoson’s attorney, and Dr. Kirkland who
examined Bottoson with respect to competency to stand trial.
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.
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
3
Bottoson wrote several letters to the trial judge to this effect.
24
schizophrenia, though in remission.4 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.
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
4
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.
25
of some stress.5 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).
5
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.
26
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
27
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.
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,
28
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.
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
29
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.
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.,
30
nonpsychotic 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.
While there is some evidence suggesting the possibility that Bottoson was
experiencing an acute or active episode of schizophrenia,6 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.
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
6
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.
31
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.
AFFIRMED.7
7
Appellee's motion to strike Appellant's Supplemental Brief is denied.
32