A judge today sentenced 32-year-old Robert Wayne Felde to death in the electric chair, as he had requested, for the 1978 slaying of a policeman. Mr. Felde had pleaded insanity based on delayed stress from his experiences in the Vietnam War.
The sentence will be automatically appealed to the Louisiana Supreme Court.
''I think state law says the Supreme Court can take away a the death penalty and change it to life but if they do, I'll kill myself,'' Mr. Felde said.
''I know that I could not survive in prison as I told the jurors,'' he went on. ''Given the choice between life in prison or execution, I prefer execution as either means death to me anyway.''
Mr. Felde was convicted of shooting the officer, Glen Tompkins, in the back in 1978 while Officer Tompkins was moving Mr. Felde to jail on a charge of drunkenness. Mr. Felde was a fugitive from a Maryland prison where he had been serving time for manslaughter.
A jury recommended death last Aug. 21. A second trial was held on the issue of punishment, with both Mr. Felde and his attorney, Graves Thomas, asking that he be executed.
Wayne Robert Felde was executed on March 15, 1988. Felde was convicted of shooting Shreveport Police Officer Thomas Glenn Tompkins on October 20, 1978.
Felde was a prison escapee from Maryland who had been arrested by Tompkins on a drunkenness complaint. Felde's defense was based on post-traumatic stress syndrome occurring as a result of his military service in Vietnam. Felde asked the jury to sentence him to death.
His final words were:
"You can kill the messenger, but you can't kill the message."
By Doug Magee - TheNation.com
February 5, 2008
This article appeared in the January 2, 1982 edition of The Nation.
A 21-year-old Yale University student named Maya Ying Lin recently won the design competition for a national memorial to honor Vietnam veterans. Her plan calls for a sunken structure to be erected on a plot of land in Washington, D.C., between the Lincoln Memorial and the Washington Monument. On it will be inscribed the names of the 57,692 men and women who died in the war, listed in the chronological order of their deaths, the last names meeting the first. Lin, who was 8 years old at the time of the Tet Offensive, explained her underlying idea: "Thus the war's beginning and end meet; the war is 'complete,' coming full circle."
If Lin and the Vietnam Veterans Memorial Fund Inc., which selected her design, think the war is over, they should travel to the Caddo Parish jail in Shreveport, Louisiana, and listen to the story of Wayne Robert Felde, a 31-year-old Vietnam veteran who spent his twentieth year in the jungles of the Central Highlands near Pleiku. It is a story that encapsulates all the problems plaguing a significant number of the 2.8 million American men and women who served in Vietnam and for whom the war goes on.
Felde was sentenced to death on February 13 of last year for the 1978 killing of a Shreveport policeman. In his statement to the court before sentencing he said: "I am not a criminal but a troubled and wrecked man. Like many other vets I know what Vietnam did to me.... Critical wounds do not always pierce the skin, but enter the hearts and minds and dreams of those that are only begging for help so badly needed."
The members of the jury, some of whom wept during the trial, agreed with the defense's contention that Felde's actions in Shreveport had their antecedents in Vietnam. Nevertheless, they convicted him of first-degree murder and complied with his request that he be sentenced to death rather than life imprisonment without hope of psychiatric care. In doing so, the jury was speaking for an entire nation that does not wish to hear the cries for help of the war's survivors.
Felde grew up in a white, middle-class family in Maryland. After graduating from high school in 1967, he planned to attend veterinary school, but he lacked the money and enlisted in the Army instead. Eager to go to Vietnam, he buttonholed a colonel in the corridors of the Pentagon and begged to be sent, even though, as the sole surviving son of a World War II veteran, he was exempt. He arrived in Vietnam in March of 1968, on the day he turned 19.
The average age of American enlisted men in Vietnam was 19. Most of them believed in the war. For many, like Felde, Vietnam was their first time away from home and their initiation into adulthood. Unlike their counterparts in World War II, whose average age was 26, who traveled to the war as a company and fought and came home as a company to a tumultuous welcome, the soldiers in Vietnam were sent off to war as individuals and, when their twelve months were up, were flown back to the United States as individuals. There was no group support, no decompression period. The psychological dislocation engendered by this depersonalized system cast a shadow on Felde's postwar life.
A week after he arrived in Vietnam, Felde was flown by helicopter to Landing Zone Polly Ann near Kontum. He couldn't join his unit immediately because they were away fighting Vietcong. When the helicopters returned with the casualties, he unloaded dead bodies until nightfall. The next day he joined a firefight that lasted two hours. Afterward, he and another soldier went to recover the body of their squad's point man, who had been captured and killed and subsequently napalmed by U.S. air strikes.
When Felde attempted to pick up the corpse, the legs came off. Felde vomited, then stuffed the remains into a body bag. "That's when I started smoking grass," he told me. "I stayed loaded the whole year I was over there. The captain smoked, the lieutenant smoked, everybody smoked. I'd get up in the morning and have a pipe with my coffee. We'd be on patrol and I'd fire up the pipe. Seven or eight times we were on patrol and men ahead of me or behind me would get shot and I'd be stoned, walking along, reading Playboy. I wasn't paying attention. Why I didn't get it I'll never know."
During his year in Vietnam, Felde saw and experienced things that even today he cannot talk about without crying or blocking out part of the memory or breaking down completely. He held the quivering intestines of a friend dying of a mortar-round wound. He watched a lieutenant perform a "gook abortion"--slicing open the abdomen of a pregnant Vietnamese woman with a machete. He participated in retaliatory raids on villages in which innocent people were killed, while the Vietcong vanished into the jungle.
He began to hate the war, especially the napalm strikes, and he grew to despise the "gooks" who killed his buddies. Because the fighting stopped during downpours, he came to love the rain--and still does. The sight of rice on a plate can trigger horrifying memories or vivid flashbacks that resemble psychotic hallucinations.
Such recurring memories used to be called "shell shock," but the Vietnam War spawned a bureaucratic terminology--"delayed stress syndrome," or "posttraumatic stress." The terms denote a panoply of symptoms: devastating nightmares, depression, flashbacks, confusion, extreme anger and psychotic episodes. But their clinical impersonality obfuscates the horrors experienced periodically by half a million veterans, according to the Veterans Administration's estimates. John Wilson, a psychologist who has studied more than 500 cases of post-traumatic stress, believes that the irruption of its symptoms among Vietnam veterans will increase, peaking in 1990.
The veterans' psychological problems derive from the unique unpopularity of the war and the hostility many of them met upon returning home. Felde left Vietnam only three days after his platoon had been caught in a harrowing sniper attack. He was flown to Fort Lewis, Washington, where he had a four-hour layover before leaving for home. Still in uniform, he walked into town, where he was spit at and pelted with bottles.
This treatment caught him by surprise, but afterward he wore his uniform as infrequently as possible. He avoided talking about the war, and did not even admit to civilians that he was in the service. His remaining time in the Army was spent as a lifeguard at Fort Dix and cleaning clogged toilets at Fort Meade. He went AWOL several times, drank heavily and was nearly killed when he wrapped his new car around a tree. He left the Army in 1970 and spent the next two years in and out of college and holding fifteen jobs ("You can check my Social Security record. I was never fired. I always quit").
He married his high-school sweetheart; the marriage lasted six months. He still could not talk to anyone about his experiences, and his mother, a nurse, suggested that he see a psychiatrist. He refused. "I was afraid to mention my problems because I thought they'd put me in the nuthouse for the rest of my life," he said. His nightmares grew worse; once, when his sister awakened him for breakfast, he threw her across the room.
Felde's behavior was not unusual. The most extensive study of Vietnam veterans thus far, "Legacies of Vietnam: Comparative Adjustment of Veterans and Their Peers," which was conducted by the Center for Policy Research for several veterans' groups in 1973 and released by the Veterans Administration last March, compares veterans' adjustment to civilian life with the performance of nonveterans of the same age.
The study found that ex-soldiers who had been involved in heavy combat, particularly those who had served from 1968 to 1974, experienced the most severe problems following their release from the service. Symptoms included lingering trauma from combat, lack of interest in normal activities, explosive anger, confusion, loss of self-confidence and nightmares about the war. While 46 percent of the nonveterans in the study finished college, only 22 percent of the Vietnam veterans graduated. According to the study:
In the first three years following release from the military white Vietnam veterans display an erratic pattern of changes in occupational level, with mean downward movement in the second year. This is a very unusual pattern for labor market entrants and provides support for the proposition that the negative effects of duty in Vietnam result from problems occurring in the homecoming period.
Nearly one-third of the veterans of heavy fighting said that the war's impact on their lives and their emotional well-being had been decidedly negative.
Yet when these veterans left the service, they found no one to help them cope with their problems. Alone when they went to Vietnam, they were alone and alienated in a nation in the throes of antiwar sentiment when they returned. The V.A. hospitals were and still are ill-equipped to handle the psychological problems of readjustment. The Veterans Administration, like the American Legion and the Veterans of Foreign Wars, has treated Vietnam veterans with indifference--some might say disdain.
Not until 1978 did the V.A. set up "outreach" centers to handle the veterans' psychological problems. These centers proved to be enormously helpful. Yet despite President Reagan's revisionist view of the war as a "noble cause," his Administration has displayed a callousness toward the people who served in Vietnam. Fortunately, its attempt to rescind funding for the ninety-one centers was blocked by Congress.
For many veterans, like Felde, help came too little or too late. In 1972, while on a drinking spree, Felde got into an argument with a co-worker. As they struggled for a gun, the man was killed. When the police arrived, Felde, screaming about Vietnam, fired shots over their heads. He finally surrendered to his mother.
At the trial, his lawyer did not mention the fact that he had served in Vietnam, and Felde was convicted of first-degree murder, which was later reduced to manslaughter. After spending three years in Maryland prisons, his application for parole under the reduced charge was denied. In 1976, Felde escaped from a minimum-security facility.
By most estimates there are now about 30,000 Vietnam veterans behind bars. More than 100,000 have been jailed since the war began. The figures in the Center for Policy Research study are telling, though understated, since jailed veterans were not interviewed. Heavy-combat veterans, especially those who are white, have a very high rate of arrest: 26 percent as opposed to 14 percent for the nonveteran control group.
Curiously, few veterans who had been arrested before entering the service were arrested after they left, suggesting a direct cause-andeffect relationship between combat and trouble with the law. Unlike Felde, most veterans were charged with misdemeanors. The stereotype of violent, trained killers returning to the United States was not borne out by the study. A more accurate characterization would be troubled and wrecked men ending up behind bars after years of disorientation and confusion.
After his escape, Felde spent the next two years on the run. Unable to adjust to life outside the Army or to talk about his problems, he continued to drink heavily and work only sporadically. He also sensed a deepening depression as well as physiological changes. His tolerance for alcohol dropped markedly, suggesting liver dysfunction. Only now does he think he knows what has happened to his body.
Felde fought in a sector of Vietnam that received a high concentration of the defoliant Agent Orange. Before his unit would move in, the Air Force would spray the area liberally with the defoliant, which contained the dioxincontaminated herbicide 2,4,5-T (a total of 12 million gallons were sprayed on jungle and farmland during the war), in order to destroy the enemy's cover. Often it would take as long as a week for the trees to die. Felde remembers that his unit was once trapped without provisions and the men could find nothing to eat but boiled leaves. On another occasion he drank river water and the moisture dripping off big leaves in a heavily contaminated area. He is convinced that each time he consumed large amounts of the herbicide.
The deleterious effects of Agent Orange have long been suspected, but only recently have V.A. hospitals accepted veterans' claims that exposure to the defoliant was the cause of a variety of complaints, including various cancers, liver dysfunctions, decreased immunity, a rash called chloracne and birth defects in their children. In 1979, the Environmental Protection Agency banned the use of 2,4,5-T in situations where people would be exposed; dioxin is one of the most toxic substances known. Yet it took a lawsuit to force the V.A. to inform veterans that exposure to Agent Orange may have been harmful. Of the 2.4 million veterans who were probably exposed to the herbicide only 40,000 have sought help from the V.A.
That number may change, however. Last June, by a vote of 98 to 0, the Senate, following the lead of the House, passed a bill ordering the V.A. to give priority treatment to Vietnam veterans with ailments they suspect were caused by exposure to the defoliant. A panel of scientists appointed by the Federal government recently recommended that a comprehensive study of Agent Orange's effects be undertaken. The Centers for Disease Control in Atlanta have begun a study of birth defects that might be related to the herbicide, and several studies are being conducted by veterans' groups.
As yet, there has been no morbidity and mortality study of veterans. But there is already evidence that Agent Orange has harmful long-term effects. Dr. Tong That Tung, a respected Vietnamese scientist, studied soldiers in the Vietnamese Army who had served in areas where Agent Orange was sprayed and found high rates of birth defects among their children, higher than normal rates of miscarriage and premature births among their wives, and a higher than normal rate of sterility. The full study will be published in the New England Journal of Medicine this fall. (Damage suits in Federal courts against the manufacturer of Agent Orange, the Dow Chemical Company, appear to have been ruled out by a recent Supreme Court refusal to review a lower court decision denying such claims. Several state courts have permitted these suits, however.)
Even if the V.A. hospitals begin to treat Agent Orange casualties, a significant number of veterans will not be eligible. Some 614,000 Vietnam veterans received lessthan- honorable discharges, and approximately half of them can be denied all benefits.
For Wayne Felde, of course, the question of benefits was irrelevant, since he was a fugitive from the law. In the summer of 1978, he surfaced. His mother was dying of cancer in Shreveport. Her death was traumatic, and only a week after she died, Felde killed a Shreveport policeman while under arrest. The incident has not yet been fully explained, but there is strong evidence to suggest that Felde, who had a concealed .357 magnum which had been overlooked by the arresting officer, was actually trying to kill himself in the back seat of the police car. When the officer tried to stop him, the gun went off. The officer was killed by an errant bullet that split on a seat spring and severed a vein in his groin.
In the past three years, Felde has made several suicide attempts. The most recent coincided with the release of the fifty-two American hostages from Iran. Upon their return there was an upsurge of patriotism. A warm welcome awaited them, and ample psychiatric care. Felde's reaction was to slit his wrists and scrawl "White Collar Heroes" in blood on the pale yellow walls of his cell in the parish jail.
Some veterans' groups claim that the number of suicides of Vietnam veterans is equal to the number of combat casualties. While no accurate figures are available, if one adds the suicides to deaths in automobile accidents, deaths from drug overdoses and excessive alcohol use, and deaths in which suicidal tendencies may be involved, the total might well be equal to the number of casualties in the war. A Presidential Review Memorandum from a 1978 study of suicides among Vietnam veterans found that the suicide rate for soldiers who had served in Vietnam was 23 percent higher than it was for nonveterans in the same age group.
For the present, Felde is a survivor. He has survived twelve months of fierce combat. He has survived a car crash, two struggles for guns in which others were killed, suicide attempts and massive injuries from the shotgun blasts that felled him when he was captured after the Shreveport fracas. He has lost a kidney and part of his liver, and his right leg is crippled. Alive, Felde is a reminder that the longest war in U.S. history, and the only one it ever lost, has penetrated the bones and hearts and minds and dreams of those who fought it, and that it festers still.
Felde and the thousands of other veterans who cry out for our attention are in a sense sounding an alarm for future generations, according to Robert Muller, himself a crippled veteran and executive director of the largest veterans group, Vietnam Veterans of America. Muller, who traveled to Hanoi last month with three other veterans to discuss Agent Orange research and missing American servicemen with Vietnamese officials, has said, "What drives the Vietnam veteran is not so much his own particular situation, although for some guys it's a very stressful and difficult situation. But it's more than that. It's the issues that were at the heart of the Vietnam era."
Wayne Felde's war could end at last in the electric chair at the state prison in Angola, Louisiana. The tragedy of such an execution would be twofold. A man whose problems are rooted in service to his country would be put to death by his fellow citizens. And a voice we desperately need to hear would be silenced. If his life is ended by 2,300 volts of electricity, Wayne Felde's name should be the last one listed on the Louisiana executions.
795 F.2d 400
Wayne
Robert FELDE, Petitioner-Appellant,
v.
Frank BLACKBURN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
No. 85-4437.
United
States Court of Appeals,
Fifth Circuit.
July 21, 1986.
Appeal from the United States District Court for the Western District of Louisiana.
Before GEE, RANDALL, and DAVIS, Circuit Judges.
GEE, Circuit Judge:
In 1981, petitioner Wayne Felde was convicted and sentenced to death in Louisiana state court for the first degree murder of Shreveport police officer Thomas Glen Thompkins. His appeal unsuccessful, State v. Felde, 422 So.2d 370 (La.1982), Felde has since sought habeas relief in the state courts and federal district court to no avail. We now take up his habeas claims.
The petitioner's first claim is that he was denied effective assistance of counsel in the penalty phase of his trial, when his attorney, concededly acting on instructions, suggested to the jury that life imprisonment would be unbearable and requested that it return a sentence of death, a request the jury obliged. The petitioner contends that he was mentally incompetent to give such instructions and that in any event the attorney was derelict in his duty to follow them.
We dealt with a similar claim of ineffectiveness of counsel in Autry v. McKaskle, 727 F.2d 358 (5th Cir.1984). In Autry, the petitioner was convicted of two counts of first degree murder after a vigorous defense. In the sentencing phase of the trial that followed, the defendant gave instructions to his attorney not to argue against the imposition of the death penalty, instructions that the attorney obeyed. Autry's habeas petition argued that the failure of the attorney to seek a competency hearing before abiding by such instructions amounted to ineffective assistance of counsel in the sentencing phase. We rejected that argument, declaring:
[T]he Supreme Court has refused pro se withdrawal of a petition for writ of certiorari absent a competency hearing when counsel questioned his client's competence and supported his concern with a report by an examining psychiatrist who found him incompetent. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1965). It does not follow for us that refusing to plead for mercy after being convicted of two execution-style slayings will alone so implicate a defendant's competency as to render his counsel constitutionally ineffective for not seeking an inquiry into competency before abiding the client's decision. There is no other evidence from trial or from the post-conviction evidentiary hearings that raises questions about Autry's competence. The United States district judge found no suggestion of incompetence after reviewing the entire trial record and listening to the testimony of Autry and all the witnesses. Those witnesses included the priest who attended Autry on the eve of his aborted execution, Autry's mother and prison officials. None suggested that Autry was or is other than competent.
While categorization of decisions as the personal choices of a criminal defendant or the tactical choices of counsel is not always an easy task, cf. Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc), the United States district court found that Autry made the decisions he now charges his lawyer incompetently made. If Autry knowingly made the choices, Carver was ethically bound to follow Autry's wishes. Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983) (emphasis added).
* * *
* * *
In sum, Carver [Autry's attorney] was not ineffective in not seeking a competency hearing before abiding Autry's decision, absent a more substantial reason to suspect incompetence than the lawyer's view that Autry's decision was injurious to the case. 727 F.2d at 362-363 (emphasis added).
In its disposition of this issue, the United States district court stated:
The record shows that the court and defense counsel were familiar with the facts and circumstances underlying the defendant's demands, the physical conditions under which the defendant was maintained, and defendant's apparent competence to assist defense counsel in preparation and conduct of trial. In the absence of apparent mental deficiency, defendant's pursuit of an "all-or-nothing" result was not sufficient in itself to warrant a competency hearing. Defense counsel's familiarity with the defendant precludes a finding that he was ineffective in failing to seek a competency hearing.
The record shows that Felde's attorney was familiar with his client's condition as the trial commenced. But given the defense theory, insanity, and the evidence introduced to support it--as well as the facts surrounding Felde's incarceration--it is less clear to us that on the face of this record there was an "absence of apparent mental deficiency" on Felde's part.
We note the Louisiana Supreme Court's observation that Felde's sanity commission concluded that he was competent to stand trial at the time of the commission's report, State v. Felde, supra, 422 So.2d at 376, and the Louisiana Supreme Court's conclusion that Felde was "mentally competent to stand trial." Id. at 395. Counsel ordinarily would not be deficient in failing to request a second competency hearing for a defendant whom the state trial court has already found to be competent. The state court's finding of mental competence to stand trial, and, inferentially, mental competence to waive sixth amendment rights through the instructions Felde gave his attorney, is a finding of fact entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Maggio v. Fulford, 462 U.S. 111, 116-17, 103 S.Ct. 2261, 2263-64, 76 L.Ed.2d 794 (1983).1 However, there are certain situations in which the presumption of correctness does not apply. Sec. 2254(d)(1)-(8). One of those situations is arguably present in this case. Section 2254(d)(8) states that the presumption of correctness does not apply to fact determinations "not fully supported by the record." The issue we face, therefore, is whether the state court's determination of competence is fairly supported by the record, or if another exception applies.
The Louisiana Supreme Court's finding that Felde was competent to stand trial was apparently based entirely on the reports of the sanity commission members. However, the sanity commission reports are absent from the record before us, and there is no indication when its members completed their reports. The Louisiana Supreme Court states that Dr. Marceau, one of three examining psychiatrists, saw Felde on January 31, 1979, some 18 months before Felde's trial. The second commission member, Dr. Braswell, examined Felde on January 22 and February 19, 1979. The third, Dr. Mauroner, examined Felde on January 29, and February 5 and 19, 1979.
In light of our reasoning in Autry, we believe the district court was obligated to determine whether the state court finding that Felde was competent to stand trial and thus to waive his right to counsel is fairly supported by the record. Such a determination cannot be made on the basis of the present record, which does not include the only information on which the state court based its finding of competence. Whether the examinations of Felde were close enough to the time of trial that the defense attorney need not have requested a competency hearing, in light of the intervening events Felde alleges took place, may be relevant to the district court's inquiry as to whether the state court finding is entitled to a presumption of correctness and to whether Felde's counsel should have asked for a second competency hearing.
We will thus remand for the purpose of considering this issue on an expanded record. If, on remand, the district court concludes that the state court finding of competence is not entitled to a presumption of correctness, the district court should conduct an evidentiary hearing and make findings as to whether or not there was an "absence of apparent mental deficiency" on Felde's part so that the principles enunciated in Autry were satisfied.2
Felde challenges as prejudicial certain remarks by the prosecutor in his closing statement and rebuttal. In those remarks the prosecutor referred to evidence not in the record, warning in addition that if the petitioner was found not guilty by reason of insanity he might easily escape.
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir.1983). To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred. Id. At best, the petitioner suggests that "it cannot be said with any degree of certainty" that the allegedly prejudical remarks "had no effect on the outcome" of the case. That is true. The burden, however, was not on the state to make such a showing. The petitioner has failed to carry his burden of showing that the evidence against him was so insubstantial that but for these remarks no conviction would have occurred.
Citing Grisby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc), the petitioner next argues that his right to a jury selected from a cross-section of the community was violated by the exclusion of thirty veniremen stricken for cause under Witherspoon v. Illinois, 391 U.S. 510, 520, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776 (1968) because of their moral qualms about the death penalty. We have rejected this argument before, see, e.g., Wicker v. McCotter, 783 F.2d 487, 493-494 (5th Cir.1986), and do so again today. More to the purpose, the Supreme Court has now likewise done so. Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 59, 88 L.Ed.2d 48 (1986).
The petitioner's next claim is that his Fifth and Sixth Amendment rights were violated by prosecution references to statements made by the petitioner to a psychiatrist during the course of the court-ordered sanity commission examination. Assuming, arguendo, that these statements were inadmissible in the state's case in chief since Felde had not been given the Miranda warning before the examination (even though Felde placed his sanity at issue), the statements were properly used during Felde's cross-examination and in the prosecution's closing statement and rebuttal for impeachment purposes. Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971).
Conclusion
We find no merit in any of petitioner's claims save his contention that he lacked effective assistance of counsel in the sentencing phase of his trial. Since the record is incomplete on that point, we REMAND to the district court for proceedings consistent with this opinion.
*****
A "person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975). Felde does not argue that he was incompetent to be tried. See Rec. v. 1, at 44-45. Rather, Felde's competence is an issue in this case, in light of the allegations of the petition and his brief on appeal, only as to whether he could knowingly and intelligently waive his sixth amendment right to effective counsel at the sentencing hearing
If the finding of competency by the state court is fairly supported by the record on which that finding was made, the state may nevertheless be required to resentence Felde depending on the findings of the district court on remand. A resentencing will be necessary if Felde can establish that his mental condition deteriorated significantly between his competency hearing and trial and: (1) his counsel was or should have been aware of his deteriorated mental condition, and (2) reasonably effective counsel would have determined that if another competency hearing had been requested the court probably would have found Felde incompetent to stand trial
817 F.2d 281
v.
Robert H. Butler, Sr., Warden,
Louisiana State Penitentiary,
respondent- Appellee
United States Court of Appeals for the Fifth Circuit
Rehearing and Rehearing En Banc
Denied June 8, 1987
Appeal from the United States District Court for the Western District of Louisiana.
Before GEE, RANDALL, and DAVIS, Circuit Judges.
GEE, Circuit Judge:
Petitioner Wayne Robert Felde, convicted of assault and manslaughter in Maryland, murdered a policeman while at large in Louisiana after escaping from custody and was crippled by shotgun fire in the course of being reapprehended. At his capital murder trial, it was his strategy and that of counsel to seek either an acquittal on grounds of insanity (post-traumatic stress syndrome arising from combat service) or a death sentence. A jury--tearful and shaken, but faithful to its duty--returned a death sentence.1
The conviction was affirmed on appeal, State v. Felde, 422 So.2d 370 (La.1982); and the customary post-conviction proceedings have since gone forward.
On a former appeal of this habeas matter, we affirmed the decision of the district court on all claims for relief save the contention that Felde lacked effective assistance of counsel in the sentencing phase of the trial.2 Finding the record incomplete, we remanded the cause to district court for resolution of the issue.
That court has now done so, concluding after an evidentiary hearing that Felde was not prejudiced by any failure of his counsel to seek a hearing on his competence to stand trial. In so holding, the court stated:
Felde will satisfy the "prejudice" prong of the Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] test only if he demonstrates that there is a reasonable probability that but for Thomas' failure to seek a competency hearing, he would have been found incompetent to stand trial at the sentencing phase [footnote omitted]. The test of competency has long been established by the Supreme Court as whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789 [4 L.Ed.2d 824] (1960). This court believes that Felde had the ability to consult with his attorney at the sentencing phase of his trial with a reasonable and rational understanding and that he had a rational and factual understanding of the proceedings against him.
Felde's testimony and closing statement to the jury [set out in the Appendix] clearly demonstrates his full understanding of the nature of the penalty proceedings. He understood that he was asking the jurors to sentence him to death. He appealed to their intelligence in asking them to do so. He made the chilling revelation to the jury that he did not believe that he could keep himself from killing others in the future and sought the death sentence based on their sense of duty. The decision to ask for the death sentence was made by Felde long before the trial commenced. It was based on his rational and understandable decision that he would rather die than spend the rest of his life in jail as a crippled and badly injured man. Felde and his counsel decided upon the all-or-nothing strategy. Felde was enrolled as co-counsel and pursued this strategy to the end in his closing remarks to the jury.
This court does not credit the expert witnesses who testified that Felde made his decision to seek the death penalty out of a self-destructiveness brought about by his post-traumatic stress disorder. Neither of these experts were at the courthouse when the penalty phase was conducted. Neither doctor was present when Felde and Thomas agreed to their all-or-nothing strategy. Despite the mental disorders diagnosed by these doctors, this court believes that Felde's decision was a rational one and not one compelled by the post-traumatic disorder. Indeed, Felde put up a strong fight for his life. He and his counsel made a thorough and well prepared attempt to avoid criminal liability altogether through the Viet Nam veteran/post-traumatic stress disorder defense. This is the fight Felde wanted to make. He did not want to make a sympathy defense at the sentencing phase only. Far from the choice of a suicidal incompetent, Felde showed the depth of his feelings and cognition in putting up such a defense.
The trial judge saw no evidence of abnormality during the trial. Felde was able to assist Thomas in putting on the complex insanity defense. Felde was able to assist Thomas at the trial, even remarking at the sentencing phase that the two of them had selected the jury for their intelligence. Felde was capable of taking the initiative to find an attorney to accept his strategy and to fight for him at the guilt phase. Felde does not claim that he was psychotic. He does not claim that he was incapable of understanding the proceedings at the penalty phase, and the record speaks strongly against such a finding. It is this court's firm belief that had a competency commission been convened, it would have found Felde competent to stand trial at the penalty phase. See Maggio v. Fulford, [462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794] supra.
The fact that Felde attempted suicide months after the trial does not alter this court's opinion about Felde's state of mind at the sentencing phase. This court is familiar with this attempted suicide and the political statement Felde attempted to make through it. Felde wrote to the state court judge reaffirming his decision to seek the death penalty just prior to his formal sentencing in February of 1981. (Rec. at 370). Following his trial, he filed a class action suit on behalf of the inmates at the Rapides Parish Jail where he was housed. See Defense Exhibit # 5. The record as a whole does not demonstrate that Felde was constitutionally incompetent at anytime. On the contrary, Felde consulted at all times with his attorney with a rational understanding of his defense. Felde had a full and factual understanding of the proceedings against him. This is all that is required for any sanity commission to conclude that Felde was competent to stand trial. Since this court does not believe that Felde has shown by any competent and believable evidence that Thomas' failure to obtain a sanity hearing prejudiced him, there can be no violation of the "principles enunciated in Autry [Autry v. McKaskle, 727 F.2d 358 (5th Cir.1984) ]." [See 795 F.2d, at 403]. .... This court finds that Felde was competent at the sentencing phase of his trial and that he made a knowing and intelligent decision to seek the death penalty.
Because this court believes that Wayne Robert Felde was competent during the sentencing phase of his first degree murder trial and because this court believes that Mr. Felde knowingly and intelligently sought the death penalty from the jury, his application for writ of habeas corpus is DENIED.
We agree with the reasoning of the trial court, and we are bound by its factual findings. Felde essentially asks us to disregard them and take our own view of the evidence presented. This we cannot do; Felde's statements quoted in the Appendix, even standing alone, would suffice to support the court's findings.
One other contention remains to be disposed of. On the occasion of the earlier presentation to our Court, appellate counsel also contended that trial counsel "actively sought the death penalty for Wayne Felde" and hence was ineffective because, even assuming that Felde was perfectly rational and preferred a death sentence to the prospect of serving a life sentence as a cripple, in the face of such instructions from his client" at best the attorney's duty would be to follow ... [them] by standing silent. It is [the argument runs] utterly inappropriate for an attorney to advocate his client's death."
Thus we are asked to hold that for counsel to follow his client's instructions to seek the death penalty in preference to life imprisonment was, in the circumstances presented, ineffective assistance in and of itself. We need not decide this difficult question, however, replete as it is with thorny subissues of the limits of counsel's instrumental role and of trial tactics.3 We need not do so because even if it be conceded, for purposes of discussion, that making such an argument renders counsel ineffective, in this case there is no reasonable probability that a different result would have ensued had counsel remained silent.
For counsel's comments were indirect and were framed, like a book with bookends, by Felde's own preceding ominous assertions that unless executed he would kill again and by his own concluding pleas and "prayer" for a sentence of death. These are set out in the Appendix. In view of these, the second prong of the Strickland test clearly bars relief. Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). Mr. Felde's services to and sufferings for his country may commend him to executive clemency, but his arguments for habeas relief entitle him to none.
AFFIRMED.
*****
APPENDIX
Felde took the stand and began to address the jury even before his attorney asked him a question, and his entire testimony is reproduced below:
BY MR. FELDE:
A. All I can say to you all is.... I would advise you to return the death penalty in this case.... Keith Oliver, I know your cousin Joe Oliver. We were cell partners for about eight (8) months.... Mr. Coker, I know one of your good friends, too, Tommy Strange. We picked this Jury and we picked them on intelligence. I consider all of you people intelligent so I hope you will take my advice, return the death penalty. Thank you.
BY MR. THOMAS:
Q. What if.... the death penalty is not returned, Wayne, do you think you will be able to control your actions in the future? Can you guarantee them that you could control your actions if you would--(Interrupted)
A. I think other deaths will result. Yes, Mr. Thomas, I do. And that's why I suggested it, to prevent it from happening. They would be on your conscience if you can't return it. Now, I'm not trying to put you all in a bad position but you all are taking other people's lives in your hands, along with mine, so I think you should return it. I don't think no more needs to be said, Mr. Thomas. They're upset.
The state and then Thomas made their closing remarks. Thomas did not plead for Felde's life:
BY MR. THOMAS: What I am going to convey to you is not necessarily my own thoughts but more those of my client, although, in some respects, I share them....
I can't tell anyone to take someone else's life but I think if that is the case only the person whose life is to be taken has that right, and I believe that you have heard him testify a short time ago....
[A]t this point, I believe there is only one kind of help you can give him because I am not going to stand up here and tell you that you are doing him a favor by giving him life, because Angola is hell and for a crippled man, it's hell twice over, and I think that's where he is going to go, first degree murder of a Shreveport policeman....
There are a lot of thoughts going through my head right now and there's no way.... I keep thinking.... I'm waiting for something to come in here and tell me, you know, there's some reason I should ask you to spare this man but there's not. There, honestly, is not. There's not one reason that I can think of for him to continue to experience what he has been experiencing. I cannot think of one reason.
Felde then addressed the jury in his capacity as co-counsel:
BY MR. FELDE: All I have to say is.... whether you all believed what we'd said throughout this defense or not, it is true. There are two hundred thousand other veterans suffering with it and I'm sorry you didn't believe it but, however, I do pray that you will come back with the death penalty.
I'm not coming out and threatening anybody because that's not what it is. A walking time bomb, that's what it is. Somebody else will die as a result of it if I'm not put to death, I am sure. It's happened twice in eight years. There's been ten years of proof shown to you. I don't know where it went so, please, return that. I think, as countrymen, you owe me that much. I did my part. Please do yours. Okay? Thank you. Thank you, Judge Humphries, for a fair trial.
*****
Through its foreman, it added a statement:
We, the Jury, recognize the contribution of our Viet Nam veterans and those who lost their lives in Viet Nam.
We feel that the trial of Wayne Felde has brought to the forefront those extreme stress disorders prevalent among thousands of our veterans.
We have attempted, through great emotional and mental strain, to serve and preserve the judicial branch of our government by serving on this Jury.
This trial will forever remain indelibly imprinted upon our minds, hearts, and consciences.
Through long and careful deliberation, through exposure to all evidence, we felt that Mr. Felde was aware of right and wrong when Mr. Thompkins' life was taken. However, we pledge ourselves to contribute whatever we can to best meet the needs of our veterans.
795 F.2d 400 (1986)
If professionally permissible, and if Felde's contention were accepted, the argument would be the answer to capital defense counsel's prayer: if made and a life sentence ensues, the argument has done no harm; if the sentence is one of death, it must be reversed