Charles Kenneth Foster, Petitioner-appellant, v. Richard L. Dugger, and Robert A. Butterworth, Attorneygeneral, Respondents- Appellees, 823 F.2d 402 (11th Cir. 1987)

Charles Kenneth Foster was sentenced to death after he confessed during the guilt/innocence phase of his first-degree murder trial. This is an appeal from the district court's denial of his second and successive petition for a writ of habeas corpus. Like its predecessor, Foster's second petition seeks relief based upon the performance of his attorney, Virgil Mayo. Foster again argues that judge and jury did not have the opportunity to review crucial evidence. We affirm.

Foster met Julian Lanier at a bar on the evening of July 14, 1975. The two men persuaded two prostitutes to travel in Lanier's motorhome to a remote wooded area. Both men grew increasingly intoxicated. In the early morning hours of July 15, as Lanier and one of the women were about to engage in sexual intercourse, Foster attacked him and slit his throat with a knife. Aided by the women, Foster dragged Lanier into the woods and covered him with leaves and branches. Lanier, however, was still breathing. With one slice, Foster severed his spinal cord. Foster and the two women then divided the money in Lanier's wallet.

The trial began on October 1, 1975. Foster's case rested entirely on his own testimony. Foster was planning to suggest that one of the women committed the homicide. In the middle of this testimony, however, Foster broke down and made a dramatic witness stand confession consistent with his earlier confession to the police. Following this confession, the jury convicted Foster of murder in the first degree and robbery. The sentencing phase commenced immediately thereafter.¹ 

During the penalty phase, Mayo pursued a strategy Foster had earlier rejected: to defend on the basis of Foster's mental and emotional state at the time of the crime. The mitigating evidence Mayo presented to the jury consisted entirely of the testimony of two witnesses and documents pertaining to Foster's two involuntary commitment proceedings.² 

First, Foster's ex-wife described the "abnormalities in [Foster's] behavior:"

Well, he cut himself all the time and he has cut all the arteries in his arms and he has cut the heel strain in two and he has burnt steel wool in his leg. Just all kinds of things. The only reasons he doesn't kill hisself [sic] is because he thinks that that is the one crime that he cannot be forgiven for.

Mrs. Foster concluded with an impassioned plea not to kill her ex-husband because he was "a very sick person."

Dr. John Mason, a psychiatrist who had treated Foster, testified next. The doctor's testimony was limited to his assessment of the possible effect of alcohol on Foster's capacity for premeditation:

Certainly, I would feel that from past experience Mr. Foster has very poor control when intoxicated and certainly intoxication would effect [sic] his ability to maintain a thought or to maintain a plan or carry it through. But as to estimate exactly how long he would be able to do so I don't think I could really do that.

Dr. Mason also identified the documents from the involuntary commitment proceedings and read his diagnosis on each occasion: "paranoid reaction" on November 25, 1970, and "suicidal depression with overdose of medication and self mutilative [sic] behavior" on February 21, 1974.³ 

At the conclusion of the sentencing hearing, the judge, but not the jury, considered reports from Dr. Mason and two other court-appointed psychiatrists.⁴  These reports alluded to a long and stormy history of mental illness. All three psychiatrists concluded, however, that Foster was competent to stand trial and legally sane at the time of the crime. In accordance with the jury's recommendation, the judge sentenced Foster to death on the murder charge and life imprisonment on the robbery charge.⁵ 

In his first petition for federal habeas corpus, Foster claimed that the jury did not have the opportunity to learn the full impact of his mental illness. Foster specifically argued that his attorney failed to extract important clinical information from his expert witness, Dr. Mason. See Foster v. Strickland, 707 F.2d 1339, 1344 (11th Cir. 1983), cert. denied, 466 U.S. 993, 104 S. Ct. 2375, 80 L. Ed. 2d 847 (1984).⁶  In fact, counsel had made a strategic decision informed by years of criminal practice in the region. Counsel felt that the jury would be more likely to respond to an emotional appeal from Mrs. Foster than to a medical discourse from Dr. Mason. We concluded that counsel had adequately mustered the medical evidence to effectuate this strategy. Id. Mayo elicited from Dr. Mason enough clinical information to lend credibility to Mrs. Foster's plea that her husband was "a very sick person." Mayo also used Dr. Mason to introduce documentary proof of Foster's history of mental illness. Id. This tactic gave the jury a written exhibit so they did not have to remember technical oral testimony. Foster v. State, 400 So. 2d 1, 4 (Fla.1981). It is difficult to see how counsel could have better utilized an expert witness who, along with two other psychiatrists, had already gone on record with his conclusion that the defendant was sane at the time of the homicide.

The present petition is Foster's second before the federal courts. The magistrate found and the district court specifically agreed, however, that Foster's petition was not an abuse of the writ. See Rule 9(b), 28 U.S.C. foll. Sec. 2254. This finding is not challenged on appeal, and we shall not address the issue.

In the present petition Foster repeats his attack on counsel's decision to forego a detailed presentation of medical evidence and to rely instead upon Mrs. Foster's emotional plea. Although we accord such strategic decisions a heavy measure of deference, the Supreme Court has suggested an exception:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984).⁷  Foster now seizes upon this exception.

For purposes of this appeal, Foster argues that we should not defer to Mayo's strategic judgment because the attorney breached his duty to investigate the defendant's history of mental illness. Accordingly, our threshold inquiry is whether Virgil Mayo conducted a reasonable investigation into Foster's psychiatric difficulties.

Mayo assumed responsibility for Foster's case approximately a month before trial. He interviewed Foster on at least ten separate occasions and discussed Foster's history of mental illness during a number of these interviews. Mayo spoke to Foster's mother and ex-wife. In addition, Mayo interviewed various members of the community who were familiar with Foster. After he learned of Foster's mental disturbance, Mayo reviewed the court records of the two involuntary commitments. Mayo then discussed Foster's condition with a judge who had handled the proceedings and a psychiatrist who treated Foster.⁸  Finally, Mayo reviewed the reports of the three court-appointed psychiatrists.

Foster criticizes Mayo for not pursuing two additional sources of evidence. First, Mayo did not review Foster's medical records. Second, except for a brief conversation with Dr. Mason immediately preceding his testimony, Mayo did not talk to the three court-appointed psychiatrists.

When assessing a decision not to investigate, we must make "every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065. Counsel need not "pursue every path until it bears fruit or until all available hope withers." Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984), (quoting Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952; see also Washington v. Watkins, 655 F.2d 1346, 1356 (11th Cir. Unit A 1981) cert. denied, 456 U.S. 949, 102 S. Ct. 2021, 72 L. Ed. 2d 474. The appropriate legal standard is not error-free representation, but "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066; see also Darden v. Wainwright, 477 U.S. 187, 106 S. Ct. 2464, 2475, 91 L. Ed. 2d 144 (1986).⁹  Accordingly, it is necessary to review those factors that influenced Mayo's decision to forego further investigation into Foster's mental illness.¹⁰ 

What counsel's investigation had revealed up until this time was a history of bizarre, self-destructive behavior intertwined with episodes of drug and alcohol abuse. A full medical account of Foster's emotional disturbance would certainly bring out these less sympathetic aspects of Foster's character. See, e.g., Magwood v. Smith, 791 F.2d 1438, 1445 (11th Cir. 1986) (deferring under similar circumstances to counsel's decision not to present detailed medical evidence).¹¹  Detailed medical evidence could do more harm than good by opening the door to harmful cross-examination or rebuttal.¹²  At the same time, such evidence would be of little persuasive value. From statistical studies and his own personal experience, counsel knew that psychiatric testimony would "not [be] very popular" with a Bay County jury. Cf. Songer v. Wainwright, 733 F.2d 788, 791 (11th Cir. 1984) (counsel could conclude from experience that evidence of drug use would result in jury prejudice), cert. denied, 469 U.S. 1133, 105 S. Ct. 817, 83 L. Ed. 2d 809 (1985).¹³ 

In addition the three court-appointed psychiatrists had unanimously agreed that Foster was sane at the time of the homicide. Two of these doctors, Dr. Mason and Dr. Sapoznikoff, had been the psychiatrists most intimately involved in Foster's treatment.¹⁴  Counsel had little reason to doubt that the conclusion of Foster's own psychiatrists would remain the bottom line. See Foster v. Strickland, 707 F.2d at 1343. Even if counsel were to uncover expert testimony contradicting these psychiatrist's conclusions, the introduction of this material might damage the defense's credibility and alienate the jury.¹⁵  "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel." Cape v. Francis, 741 F.2d 1287, 1301 (11th Cir. 1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245 (1985); see, e.g., Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (counsel's failure to adduce additional testimony concerning defendant's sanity did not cause a "breakdown in the adversary process," even though such evidence would have been "helpful" to his client), cert. denied, 470 U.S. 1059, 105 S. Ct. 1775, 84 L. Ed. 2d 834 (1985).

Foster nevertheless argues that, even if there was to be no insanity defense, counsel should have searched for additional evidence that would have supported mitigation of the death penalty.¹⁶  According to Foster, the medical records and the psychiatrists were likely sources of this material. To be sure, Foster had accumulated a potpourri of diagnoses, and his records were well stocked with the observations and reflections of his psychiatrists. Mayo, however, had before him the opinions of three experts, two of whom had been intimately involved in Foster's treatment. Mayo had little reason to believe that medical records and interviews with the psychiatrists would provide information that would materially add to the general information before him concerning Foster's illness. At this point Mayo was sufficiently well-informed to reach his conclusion that the introduction of expert testimony and medical evidence could accomplish little that would not be achieved far more effectively through the testimony of Foster's ex-wife.¹⁷  Counsel had no cause to suspect that additional medical evidence would lead him to reassess his conclusion. Under these circumstances, counsel's decision not to pursue additional medical evidence was supported by "reasonable professional judgment" and counsel's decision to rely on lay testimony and to avoid the excessive use of medical evidence was a "reasonable decision that [made] particular investigations [into medical evidence] unnecessary." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.¹⁸  As such, counsel had no need to further familiarize himself with the clinical niceties of Foster's illness. See, e.g., Burger v. Kemp, 753 F.2d 930, 937 (11th Cir.) (reasonable to terminate investigation into defendant's background where counsel made strategic decision to avoid emphasizing character evidence), vacated on other grounds, 474 U.S. 806, 106 S. Ct. 41, 88 L. Ed. 2d 34 (1985), on remand, 785 F.2d 890 (11th Cir.), cert. granted, --- U.S. ----, 107 S. Ct. 397, 93 L. Ed. 2d 351 (1986).¹⁹ 

After careful review of the record, we conclude that counsel formulated his trial strategy only after frequent consultations with his client and an informed evaluation of all his options. See Mulligan v. Kemp, 771 F.2d 1436, 1440 (11th Cir. 1985); Washington v. Watkins, 655 F.2d at 1355. Foster's second habeas petition is but a thinly disguised rehash of his previous attack on this strategy. Our holding remains unchanged: we will not lightly second-guess the considered judgments of competent counsel. Ford v. Strickland, 696 F.2d 804, 820 (11th Cir.), cert. denied, 464 U.S. 865, 104 S. Ct. 201, 78 L. Ed. 2d 176 (1983); Williams v. Maggio, 679 F.2d 381, 392 (5th Cir. Unit A 1982), cert. denied, 463 U.S. 1214, 103 S. Ct. 3553, 77 L. Ed. 2d 1399 (1983).

AFFIRMED.