Appeal from the United States District Court For the Eastern District of Texas. D.C. DOCKET NUMBER 82-cv-912. JUDGE William Wayne Justice
Before Politz, Chief Judge, King and Emilio M. Garza, Circuit Judges.
The State of Texas appeals the grant of a writ of habeas corpus vacating the death sentence imposed on Jim Vanderbilt and barring the reimposition of a death sentence at any subsequent sentencing proceeding. For the reasons assigned, we affirm in part and vacate in part.
On April 1, 1975, Vanderbilt, a former police officer, kidnapped Katina Moyer, a 16-year-old girl, while she was in her car waiting to pick up her schoolteacher mother. At gunpoint he handcuffed Moyer and took her to his home, intending to rape her. Noticing that Moyer was looking around the house intently, as if trying to memorize everything she could about his house, he put her in her auto and drove to a secluded spot outside Amarillo where he fatally shot her in the head with his .357 pistol. He left her body where it fell and drove to the outskirts of Amarillo where he abandoned her car on the highway with the blinkers flashing and hitched a ride back into town.
The Psychiatric Examination
In May, 1975 prior to the first trial, Vanderbilt's counsel requested that Vanderbilt be examined by a psychiatrist. Counsel had advised against the examination, but Vanderbilt insisted. The motion requesting the examination did not specify the purposes. The court granted the motion, but required that the results be released to the state. We find no written order for the examination in the record of the first trial. Vanderbilt was examined over the course of two days by Drs. Kracke and Klein, working under the supervision of Dr. Kenneth McTague. Dr. McTague summarized their examinations in a letter informing the court of their Conclusion that Vanderbilt was sane and competent to stand trial.
The district court described the evidence at trial as follows:
From the circumstantial evidence introduced at trial, the jury could reasonably find that the applicant and the deceased victim, Moyer, left the applicant's house in her automobile, on the evening of her death, at approximately 4:30 p.m.; and that they drove north on the Dumas Expressway out of the city of Amarillo. Further, they could have found that the applicant abandoned Moyer's car along the Dumas Expressway, south of where Moyer was found shot, at approximately 6:00 p.m.
In addition, experts testified at trial that Moyer had bruises on her wrists which could have been caused by handcuffs, and that the bullet with which she was killed was a .38 or .357 luballoy, or copper-coated bullet. Other testimony showed that the applicant possessed handcuffs with traces of blood of the same type as Moyer's on the inside of one of the cuffs.
In addition, the state introduced the testimony of two police officers who heard Vanderbilt make an oral confession on the night of his arrest. Officer Davis testified that "He said he wanted to scare her, and she was telling him that she wouldn't tell on him. He put his gun to the back of her head and cocked it. . . . He said the gun went off and she fell to the ground." Officer Boydston's account was similar. Also according to Officer Davis, Vanderbilt stated that after killing Moyer he removed the handcuffs, drove to the outskirts of Amarillo, abandoned her car on the highway with its blinkers on, and then was picked up by a passing motorist. Upon returning to town he went home, got his car, and drove around "looking for another girl."
Based upon this evidence, Vanderbilt was found guilty of capital murder. Neither the state nor Vanderbilt put on any additional evidence during the penalty phase.*fn1 The jury answered "yes" to special issue number two, finding that Vanderbilt "would commit criminal acts of violence that would constitute a continuing threat to society."*fn2 Vanderbilt was sentenced to death.
The Texas Court of Criminal Appeals overturned the conviction for trial error related to the exclusion of evidence on the issue of the voluntariness of Vanderbilt's confessions;*fn3 the appellate court did not address Vanderbilt's claim alleging insufficient evidence of future dangerousness to support the death sentence.*fn4 The appellate court stated, however:
We note that the State introduced no evidence at the punishment stage of the trial. In the event of a re-trial, we call attention to the recent case of Warren v. State, 562 S.W.2d 474, on sufficiency of the evidence to support an affirmative finding to special issue No. 2 of Art. 37.071, V.A.C.C.P.*fn5
Vanderbilt was retried, and was again convicted and sentenced to death. The only new evidence presented during the second trial's guilt phase was the testimony of Jerre Kris Tucker. She testified that she had been sexually molested by Vanderbilt on March 27, 1975. On that evening she had just gotten into her car in a shopping mall parking lot after work when he opened the driver's door of her car, produced a pistol, and demanded that she move over. Vanderbilt got in the car, handcuffed her, drove to a secluded construction area which was not occupied at that ...