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Larry Grant LONCHAR

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Gambling debt - Robbery
Number of victims: 3
Date of murder: October 13, 1986
Date of birth: 1951
Victims profile: Wayne Smith, Steven Smith, and Wayne's companion, Margaret Sweat
Method of murder: Shooting / Stabbing with knife
Location: DeKalb County, Georgia, USA
Status: Executed by electrocution in Georgia on November 14, 1996
 
 
 
 
 

The United States Court of Appeals
For the Eleventh Circuit

 

opinion 95-5015

opinion 96-9334

 
 
 
 
 
 

Larry Grant Lonchar - Nov 14, 1996

Larry Grant Lonchar was convicted by a jury in DeKalb County of three counts of murder and one count of aggravated assault. He was sentenced to death on each of the murder counts. 

Count 1. Charles Wayne Smith and his son, Steven Smith, ran a book-making operation out of a condominium in DeKalb County. Lonchar became several thousand dollars in debt to the operation, and on October 13, 1986, visited the condominium, accompanied by Mitchell Wells.

At the time they visited, four people were in the condominium. The three murder victims, Wayne Smith, Steven Smith, and Wayne's companion, Margaret Sweat, were in the living room. Richard Smith (another of Wayne Smith's sons), the aggravated assault victim, was in a bedroom.

At trial Richard Smith testified that he heard a knock on the door and then saw Lonchar enter the living room. He added that Lonchar displayed a badge and identified himself as special agent Larry Lonchar. Wayne Smith and Steven Smith were then handcuffed. Richard Smith heard four or five shots from the living room, and then Wells came to his bedroom, shot him several times and left. He pretended he was dead while the condominium was ransacked.

Shortly thereafter, afraid he would bleed to death, he picked up the extension telephone in the bedroom and heard Sweat talking to the police. Then she yelled, "they're back." Richard Smith crawled to the living room and saw a man wearing a trench coat leave the condominium.

Sweat's call was recorded by the police department:

911: DeKalb Emergency 911.

Caller: Police.

911: What address?

Caller: []

911: What's the problem?

Caller: Everybody's been shot.

911: Who's been shot? 

Caller: Me -- and --

911: With a gun?

Caller: Yes.

911: Who did it? [**751]

Caller: I don't know.

911: Is that a house or an apartment?

Caller: It's a condominium. . . .

911: Okay. Now you say everybody's been shot, I already got you help on the way, but when you say everybody's been shot, how many?

Caller: Uh, me.

911: Where are you shot at?

Caller: In the living room -- I've crawled to the phone.

911: I mean what part of your body, Ma'am.

Caller: I think my stomach -- they're coming back in -- please-(inaudible)

911: Who did it? Give me a description of them! 

Caller: Why are you doing this. Please -- (inaudible). Please, please, I don't even know your name. Please -- please Larry. I don't even know your n --.

Wayne Smith was shot in the chest, the back, and the head. Steven Smith was shot in the chest and in the head. Margaret Sweat was shot in the shoulder, stabbed in the neck 17 times, and stabbed in the chest three times. Richard Smith was shot in the back and was grazed on his head. Of the four occupants of the condominium, he was the only survivor.

Lonchar showed up at his cousin's house that evening wearing a trench coat. His hands were cut. He asked if Wells had been there earlier that day, and responded to the cousin's affirmative answer by threatening to kill Wells. Lonchar complained to his cousin that he "couldn't kill the bitch," and told him he had cut her throat. His cousin drove him to Chattanooga, where he caught a plane to Texas. He was arrested at a Western Union Station in Mission, Texas, when he went there to pick up money his cousin had wired him.

 
 

Georgia Executes Man Who Killed 3 Others

The New York Times

November 15, 1996

A killer who had wanted to donate a kidney to the detective who helped put him on death row was executed early today for killing three people over a $10,000 gambling debt.

The man, Larry Grant Lonchar, 45, was electrocuted at 12:39 A.M. despite a flurry of last-minute appeals.

Twice earlier, Mr. Lonchar had won reprieves just minutes or hours before going to the electric chair, most recently by offering to donate his organs.

He said last year that he wanted to give his kidney to Melvin Ferguson, who had helped link him to the 1987 triple killing.

Mr. Lonchar, who spent more than 31 years behind bars, had changed his mind often over the years on whether he wanted to be executed.

Mr. Ferguson, whose kidneys had been damaged during heart surgery, contacted Mr. Lonchar's lawyer, saying that he knew Mr. Lonchar's blood type from the murder investigation and that it matched his.

But the state refused to allow the necessary tests, saying that it did not want Mr. Ferguson to be disappointed and that Mr. Lonchar was too dangerous to be taken out of prison.

 
 

Convicted killer appeals to give life to others

Loretta Lepore - CNN.com

December 3, 1995

ATLANTA, Georgia (CNN) -- Larry Lonchar was on his way to Georgia's electric chair last June when the U.S. Supreme Court stayed his execution for an unusual appeal.

The Supreme Court, which is to hear his appeal Monday, will be asked to decide whether Lonchar is a convict with a heart of gold who wants only enough time to donate his organs, or a conniving con who wants only to avoid execution.

Sentenced to die in 1987 for killing three people over a gambling debt, Lonchar had previously resisted efforts by his family to appeal his conviction. He said he wanted to die.

But earlier this year, Lonchar did appeal, not because he changed his mind about dying but because he said he wants to help the families of those he killed.

"Not only are they doing me a favor by putting me out of my pain and suffering," Lonchar said, "the victims' families want this. It's the least I can do for them."

In Georgia, execution is by electrocution only. The electric chair, Lonchar argued, would destroy his organs and render them useless. He said he wants only to live long enough for the Georgia legislature to change the law to allow for execution by lethal injection. Such a proposal is expected to come before the Georgia legislature, but not before it meets next year. The aim of the bill is to speed up a judicial process that some say is being manipulated by prisoners.

Some say Lonchar is only looking for a way to delay his death. Among them, Georgia's attorney general who called Lonchar's appeal "baloney."

"That's the question: When should he die for having committed the heinous crime he committed," said Georgia Attorney General Mike Bowers. "Has he abused the system, is the specific question we're going to focus on before the U.S. Supreme Court."

Even if the courts side with Lonchar, there is uncertainty as to whether donor agencies would accept his organs.

Bobbi Beatty, executive director of LifeLink, an organ donor group, said, "In a case like this, the difference would be the ability of the donor to be declared brain dead."

A doctor must make that declaration. But the American Medical Association's ordered ethics guidelines state: "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution."

Lonchar's attorney John Matteson said, "We've got people calling from California, who are going to be dead in six months, who will be alive possibly if they could receive Larry Lonchar's organs."

So, while the Supreme Court is determining Lonchar's fate, it may also be deciding the fate of many others.

 
 

One Arrested, 2 Sought In Georgia Slayings of 3

The New York Times

October 15, 1986

One man was arrested and two other suspects were being sought today in the slayings of two men who were shot while handcuffed and a woman whose throat was slashed as she was telephoning the police, the authorities said.

The attack Monday that killed a 54-year-old man, one of his adult sons and the woman, and left another of the man's adult sons wounded, may have been revenge stemming from gambling, said Dick Hand, the DeKalb County Public Safety Director.

Mitchell Willard Wells, 30 years old, of Jonesboro was being held in the DeKalb County Jail on three counts of murder and one count of aggravated assault, said Chuck Johnson, a police spokesman. A warrant was issued for the arrest of Larry Grant Lonchar, 35, also of Jonesboro, on the same charges.

A third man also was being sought in the slayings but had not been identified, Mr. Johnson said.

The victims were identified as Charles Wayne Smith, 54, his son Steven Wayne Smith, 24, and Margaret Sweat, 45, of Gainesville. Charles (Rick) Smith, 30, was wounded in the shoulder.

 
 

978 F.2d 637

Larry Grant LONCHAR, Chris Lonchar Kellogg, As Next Friend
for Larry Grant Lonchar, Petitioners-Respondents,
v.
Walter D. ZANT, Warden, Georgia Diagnostic and
Classification Center, Respondent-Appellee.

No. 92-8193.

United States Court of Appeals,
Eleventh Circuit.

Nov. 13, 1992.
Rehearing and Rehearing En Banc
Denied Jan. 12, 1993.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

PER CURIAM:

Larry Lonchar opposes all efforts to seek review of his convictions and capital sentence. His sister, Chris Lonchar Kellogg, has filed a 28 U.S.C. 2254 petition for a writ of habeas corpus as her brother's next friend, claiming that he is incompetent to make a decision to forego further proceedings. We address the issue of whether Kellogg has met her burden to establish next friend standing to petition the court on her brother's behalf. We hold that she has not.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, Larry Lonchar had become several thousand dollars in debt to a bookmaking operation. On October 18, 1986, Lonchar and an accomplice, Mitchell Wells, visited the condominium that housed the operation. They shot each of the four occupants of the condominium and stabbed one person seventeen times in the neck and three times in the chest. Only one victim survived.

On June 25, 1987, Lonchar was convicted in the Superior Court of DeKalb County, Georgia, on three counts of malice murder and one count of aggravated assault. He was sentenced to death for the murders and to twenty-one years imprisonment for the aggravated assault. Lonchar chose not to attend his own trial to the extent the trial court would allow and refused to assist his own attorney. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988). After explaining to Lonchar the consequences of his choice not to attend his trial and questioning Lonchar about his decision, the trial court did not require Lonchar to be present at his trial except for jury selection and for purposes of identification. Id., 369 S.E.2d at 752-53.

Upon mandatory appeal, the Georgia Supreme Court affirmed Lonchar's convictions and sentence and denied his motion for reconsideration. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988). The United States Supreme Court denied Lonchar's petition for a writ of certiorari and his petition for rehearing. Lonchar v. Georgia, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 808, reh'g denied, 489 U.S. 1061, 109 S.Ct. 1332, 103 L.Ed.2d 600 (1989).

The Superior Court of DeKalb County then set Lonchar's execution date to be during the week of March 23, 1990. On March 21, 1990, Lonchar's sister, Chris Lonchar Kellogg, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, as Lonchar's next friend, claiming that her brother was incompetent and unable to proceed on his own behalf. At a preliminary hearing that same day, the court questioned Lonchar.

He informed the court that he understood that his execution date was imminent, but that he nonetheless strongly opposed his sister's efforts to seek review of his conviction. The Superior Court of Butts County then ordered an examination of Lonchar. One week later, it held an evidentiary hearing on the issue of Lonchar's competence and found Lonchar competent to decide not to proceed with habeas review.

The Georgia Supreme Court stayed the execution so that it could review this competency determination. Holding that the evidence supported the state habeas court's determination that Lonchar was able to decide rationally among his options, the Georgia Supreme Court denied Kellogg's application for a certificate of probable cause, terminated its stay and denied Kellogg's petition for reconsideration. Kellogg v. Zant, 260 Ga. 182, 390 S.E.2d 839 (1990). The United States Supreme Court then denied Kellogg's petition for a writ of certiorari and her petition for rehearing. Kellogg v. Zant, --- U.S. ----, 111 S.Ct. 231, 112 L.Ed.2d 191, reh'g denied, --- U.S. ----, 111 S.Ct. 573, 112 L.Ed.2d 579 (1990).

Meanwhile, in the United States District Court for the Northern District of Georgia, Kellogg had filed a petition for a writ of habeas corpus as Lonchar's next friend. Because the state habeas proceedings were still pending, the district court held that it lacked jurisdiction and instructed the parties to notify it when its jurisdiction was perfected. (R.2-11).

Once the state proceedings were concluded, the district court directed the respondent to address in its motion to dismiss two issues: whether the competency hearing in state court was adequate and whether Lonchar was competent to waive further review of his convictions. (R.2-12).

On August 15, 1991, the district court declined to apply a presumption of correctness to the state court proceedings and ordered an evidentiary hearing to consider anew the issue of Larry Lonchar's competency to decide not to proceed further. (R.2-17). The court expressed concerns about the haste with which the state court hearing was scheduled and conducted; the adequacy of notice to Kellogg's attorneys; and Kellogg's ability to present evidence and subpoena witnesses. (Id.)

On November 12, 1991, after permitting discovery, the court began its hearing on the issue of Kellogg's standing to proceed. Lonchar was present and again stated that he opposed his sister's efforts to seek a writ of habeas corpus. The court heard the testimony of Dr. Robert Theodore Michael Phillips, a psychiatrist called by Kellogg. Phillips diagnosed Lonchar as suffering from bipolar disorder with depressive self-destructive and suicidal features. Phillips concluded that although Lonchar had the intellectual capacity to understand his legal position and his sentence, Lonchar lacked the ability to make a rational choice among his options because of his mental disorder.

Two psychiatrists called as witnesses by the State did not agree with Dr. Phillips. Dr. Dave M. Davis and Dr. Everett C. Kuglar both diagnosed Lonchar as suffering from dysthymia or depressive neurosis and a personality disorder with antisocial and self-defeating features. Both Davis and Kuglar also testified that Lonchar was able to knowingly, intelligently and voluntarily decide whether or not to seek further review of his convictions.

The district court found the testimony of Drs. Davis and Kuglar more persuasive than that of Dr. Phillips. (R.3-34, District Court Order Granting Motion to Dismiss). Specifically, the court noted that the lack of evidence of manic episodes undermined Phillips's diagnosis of bipolar disorder and that Phillips's opinions had changed since his original report. (Id. at 10).

Rejecting Phillips's diagnosis of bipolar disorder, the court accepted Kuglar's testimony that a person with a personality disorder generally has the ability to make choices regarding his behavior. (Id.) The district court also emphasized the fact that all three psychiatrists agreed in certain areas. All three found Lonchar able to discuss logically and found him unwavering in his decision to forego further review of his conviction. (Id. at 11).

The district court applied the standard of Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), and concluded that: (1) Lonchar suffers from mild to moderate depression; (2) Lonchar understands his legal position and the options available to him; and (3) Lonchar's depression does not prevent him from making a rational choice among his options. (R.3-34 at 13-14). Accordingly, the district court held that Kellogg lacked standing to proceed as her brother's next friend and dismissed her petition for a writ of habeas corpus on behalf of her brother. It is from this order that Kellogg appeals.

ISSUE ON APPEAL AND CONTENTIONS OF THE PARTIES

The sole issue on appeal is whether the district court erred in determining that Chris Lonchar Kellogg has not met her burden of establishing standing to seek a writ of habeas corpus as her brother's next friend.

Petitioner Kellogg contends that the district court erred in evaluating Lonchar's competence to forego further review. She argues that she has standing to proceed on behalf of her brother because her brother's decision not to proceed is incompetent and involuntary. Respondent Zant maintains that the district court was correct in determining that Larry Lonchar is able to choose rationally among his options and that Kellogg, therefore, lacks standing to proceed in this matter.

STANDARD OF REVIEW

Whether Larry Lonchar is competent to forego collateral review of his conviction is a factual question. Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.), cert. denied, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985). We must therefore accept the district court's findings unless we find them to be clearly erroneous. Fed.R.Civ.P. 52(a); Rumbaugh, 753 F.2d at 398-99; cf. Card v. Singletary, 963 F.2d 1440 (11th Cir.1992) (district court's determination of defendant's competency to stand trial reviewed under clearly erroneous standard).

DISCUSSION

Chris Lonchar Kellogg has the burden to establish her standing to proceed on behalf of her brother and thereby to invoke the jurisdiction of the federal courts. See Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990). Article III of the United States Constitution limits the jurisdiction of the federal courts to actual cases and controversies. U.S. Const. art. III, 2; see Whitmore, 495 U.S. at 154-55, 110 S.Ct. at 1722. By requiring that the person seeking to invoke federal jurisdiction demonstrate a concrete, redressable injury, the doctrine of standing identifies "those disputes which are appropriately resolved through the judicial process." Id. at 155, 110 S.Ct. at 1722-23.

In habeas corpus cases, courts have long permitted a next friend to proceed on behalf of a prisoner who is unable to seek relief himself. Congress expressly codified this next friend standing in 1948 by allowing for application for a writ of habeas corpus "by the person for whose relief it is intended or by someone acting in his behalf." 28 U.S.C. 2242 (1988).

However, next friend standing is not without limit. In Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), a death row inmate sought next friend standing to appeal the conviction of another inmate sentenced to death. He claimed standing in his individual capacity and as next friend of the person whose conviction he sought to challenge. After rejecting the claim of individual standing, the Supreme Court detailed the requirements of next friend standing and held that this third party had not met his burden of proving that the real party in interest was unable to prosecute the action himself. Id. at 163-166, 110 S.Ct. at 1727-29.

The Court stressed that " 'next friend' standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another." Id. at 163, 110 S.Ct. at 1727. The would-be next friend must first prove that the real party in interest cannot pursue his own cause due to some disability such as mental incompetence or lack of access to court. Id. at 163-65, 110 S.Ct. at 1727-1728. Then, the next friend must show some relationship or other evidence that would suggest that the next friend is truly dedicated to the interests of the real party in interest. Id. at 163-64, 110 S.Ct. at 1727. Ultimately, "[t]he burden is on the 'next friend' clearly to establish the propriety of [her] status, and thereby justify the jurisdiction of the court." Id. at 164, 110 S.Ct. at 1727.

Although Whitmore involved next friend standing to pursue a direct appeal, the Court in Whitmore based its decision entirely upon next friend standing as it has developed under habeas corpus law. See id. at 164-65, 110 S.Ct. at 1728. The logic of Whitmore, therefore, applies where, as here, a would-be next friend seeks a writ of habeas corpus on behalf of another. In fact, our precedent has applied these same principles in the context of next friend standing to seek a habeas writ. See Weber v. Garza, 570 F.2d 511 (5th Cir.1978).1

The district court held and no one disputes that Kellogg, as Lonchar's sister, is sufficiently dedicated to the interests of her brother. (R.3-34 at 6). However, Kellogg must also prove that Lonchar is unable to litigate his own cause. She argues that Lonchar is mentally incompetent to decide not to proceed and that she, therefore, should be allowed to proceed in his stead.

Competency to forego further legal proceedings depends on whether the person whose competency is in question "has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966).

This analysis involves a determination of (1) whether that person suffers from a mental disease, disorder, or defect; (2) whether a mental disease, disorder, or defect prevents that person from understanding his legal position and the options available to him; and (3) whether a mental disease, disorder, or defect prevents that person from making a rational choice among his options. See Rumbaugh v. Procunier, 53 F.2d 395, 398 (5th Cir.), cert. denied, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985).

Applying this standard, the district court found that Larry Lonchar is competent to forego further review of his convictions and sentence. We hold that this determination is not clearly erroneous. The court found that Lonchar suffers from a mental disorder: mild to moderate depression. Both Dr. Davis and Dr. Kuglar diagnosed Lonchar as suffering from dysthymia or depressive neurosis and a personality disorder with antisocial and self-defeating features.

Dr. Phillips, on the other hand, diagnosed Lonchar as suffering from bipolar disorder. However, Phillips could not point to any specific instances in Lonchar's record indicating manic episodes characteristic of someone suffering from bipolar disorder. Both Davis and Kuglar testified that they found no evidence of such manic episodes in Lonchar's medical records. The testimony of these psychiatrists clearly supports the district court's finding that Lonchar suffered from depression.

The court also found that Lonchar was able to understand his legal position and the options available to him. Upon this issue, all three psychiatrists agreed. Kellogg's own expert witness, Phillips, testified that Lonchar

has the intellectual capacity at this point in time and the intellect to recognize what his legal position is. This individual knows what he has been charged with. He recognizes the penalty that has been handed down and what the ultimate outcome of that penalty will be if it in fact is imposed upon him and he is executed.

(R.4 at 147). Both Davis and Kuglar added that Lonchar understood his choices and the consequences of not pursuing review of his conviction.

Perhaps the most persuasive evidence that Lonchar understands his legal position is his own testimony. Questioned by the court twice during the competency hearing, Lonchar exhibited a basic understanding of the habeas proceedings, persisted in his opposition to further review of his convictions, and stated that he understood that without further proceedings he would be executed. Nothing in the record indicates that the district court clearly erred in finding that Lonchar understands both his legal position and the options available to him.

The district court concluded that Lonchar could make a rational choice among his options. The testimony of Davis and Kuglar supports this finding. Davis testified that Lonchar's judgment and insight were good. In Davis's opinion, Lonchar understood not only his own position, but also his sister's position in wanting to pursue habeas review. Lonchar, according to Davis, had considered his options and the quality of life he had in prison and had decided not to oppose his sentence. Davis opined that Lonchar had the capacity to appreciate his position and to make a rational choice regarding further litigation.

Kuglar, too, traced Lonchar's thought process. In Kuglar's opinion, Lonchar understood his choices, understood the finality of his sentence and had the ability to weigh his options and to choose rationally among them. Kuglar testified that Lonchar's disorder did not interfere with his ability to make a rational decision to abandon review of his convictions.

Only Phillips concluded that Lonchar's psychiatric illness prevented him from making a rational choice among his options. However, Phillips's conclusion was based in large part on his diagnosis of bipolar disorder, a diagnosis not supported by evidence of manic episodes and discredited by the district court. Apart from that diagnosis, Phillips did not testify as to any other specific evidence that would indicate that Lonchar's decision was anything other than rational.

The record supports the district court's finding that Larry Lonchar is competent to forego further review of his convictions and his sentence. Psychiatric testimony indicates that Lonchar suffers from depression, a disorder which interferes with neither his ability to understand his legal position and his options nor his ability to choose rationally among those options. Accordingly, we hold that the district court did not clearly err in finding Larry Lonchar competent.

We also reject Kellogg's contention that she has standing to proceed as her brother's next friend because the state has withheld medical treatment from Lonchar and thereby rendered his decision involuntary. There is no evidence in the record to indicate that any state official has denied Lonchar needed medical treatment. In fact, the record indicates that on several occasions Lonchar has himself refused offered treatment. (R.4 at 37, 81)

Petitioner Kellogg simply has not met her burden to establish standing to seek this writ. Supreme Court cases indicate that it is possible for one convicted and sentenced to death to forego further review of his conviction and sentence. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). A third party can seek review of that conviction and sentence only when she can prove that the real party in interest is unable to litigate his own cause. This, Petitioner Kellogg has not done.

We hold, therefore, that the district court did not err in finding that Kellogg lacks standing to proceed as her brother's next friend. We affirm the district court's order dismissing Kellogg's petition.

AFFIRMED.

*****

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981

 

 

 
 
 
 
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