The opinion of the court was delivered by: Arcara, District Judge.
This case was referred to Magistrate Judge Leslie G. Foschio
pursuant to 28 U.S.C. § 636(b)(1), on February 14, 1997. On May
6, 1999, Magistrate Judge Foschio issued a Report and
Recommendation recommending that the petition be dismissed. On
September 29, 1999, this Court rereferred the case to Magistrate
Judge Foschio for further consideration in light of a recent
Second Circuit decision decided on June 4, 1999, on a similar
addition, on April 25, 2000, petitioner filed a motion for
reconsideration. On December 21, 2000, Magistrate Judge Foschio
filed a Supplemental Report and Recommendation, recommending
that the petition be dismissed.
Plaintiff filed objections to the Supplemental Report and
Recommendation on January 4, 2001, and respondent filed a
response thereto on February 23, 2001.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de
novo determination of those portions of the Supplemental Report
and Recommendation to which objections have been made. Upon a
de novo review of the Supplemental Report and Recommendation,
and after reviewing the submissions, the Court adopts the
proposed findings of the Supplemental Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge
Foschio's Supplemental Report and Recommendation, the petition
is dismissed. The Clerk of Court is directed to take all
necessary steps to close this case.
SUPPLEMENTAL REPORT and RECOMMENDATION
Petitioner commenced this proceeding on August 27, 1996,
requesting relief under 28 U.S.C. § 2254. On February 14, 1997,
the matter was referred to the undersigned by the Hon. Richard
J. Arcara for report and recommendation. The undersigned issued
a Report and Recommendation on May 6, 1999 (Docket Item No. 11)
recommending the petition be dismissed. On September 29, 1999,
Judge Arcara rereferred the matter to the undersigned for
further consideration in light of a recent Second Circuit
decision, decided on June 4, 1999, on a similar issue.*fn2
The matter is also presently before the court on Petitioner's
motion for reconsideration (Docket Item No. 29), filed April 25,
On August 12, 1986, Petitioner James R. Mercer, Jr.
("Mercer"), was charged in a 25 count indictment with three
counts of Kidnaping in the Second Degree (N.Y.Penal Law § 135.20
(McKinney 1998)*fn4), nine counts of Sodomy in the First
Degree (N.Y.Penal Law § 130.50(1)), four counts of Sodomy in the
Second Degree (N.Y.Penal Law § 130.45), two counts of Sodomy in
the Third Degree (N.Y.Penal Law § 130.40(2)), two counts of Rape
in the First Degree (N.Y.Penal Law § 130.35(1)), one count of
Rape in the Second Degree (N.Y.Penal Law § 130.30), three counts
of Sexual Abuse in the First Degree (N.Y.Penal Law § 130.65(1)),
and one count of Assault in the Second Degree (N.Y.Penal Law §
120.05(2)), all in connection with his August 3, 1996 arrest for
a series of sex crimes committed against three teenage girls in
Niagara County between June 16 and June 28, 1986.
Betsy Glaser Hurley, Niagara County Assistant District
Attorney, was assigned to prosecute the case. At his arraignment
before the Niagara County Court, Hon. Charles J. Hannigan, on
August 15, 1986, Mercer, represented by Victor A. Rippo, Esq.,
pleaded not guilty to all counts. On October 23, 1986, Rippo was
terminated as Mercer's attorney and replaced with Rocco J.
Bruno, Esq. Mercer later discharged Bruno and, on May 1, 1987,
Niagara County Assistant Public Defender Matthew J. Murphy, III,
was assigned to represent Mercer. Murphy advised the court at a
pre-trial hearing on July 10, 1987, that Mercer intended to
assert an insanity
defense and, on July 16, 1987, Mercer filed an insanity defense
A jury was selected on September 25, 1987 and Mercer's
five-day jury trial commenced on September 28, 1987, and
concluded on October 2, 1987 with guilty verdicts on all counts
returned the same day. Mercer was sentenced by Judge Hannigan on
November 2, 1987 to three sets of concurrent terms of 12 1/2 to
25 years, representing the crimes against each victim, each term
to run consecutive to the other sets for a total term of
incarceration of 37 1/2 to 75 years.
Following timely appeal to the Appellate Division, New York
Supreme Court, Fourth Department, Mercer's convictions were
unanimously affirmed on June 2, 1989. People v. Mercer,
151 A.D.2d 1004, 542 N.Y.S.2d 443 (1989). Leave to appeal to the New
York Court of Appeals was denied on August 9, 1989. People v.
Mercer, 74 N.Y.2d 815, 546 N.Y.S.2d 572, 545 N.E.2d 886 (1989).
On December 7, 1993, Mercer filed a post-conviction motion
pursuant to N.Y.Crim.Proc.Law § 440.10 (McKinney 1994),*fn5
challenging the jury instructions constitutionality on the basis
of the trial court's reasonable doubt definition. That motion
was denied by Judge Hannigan on January 14, 1994, pursuant to
N.Y.Crim.Proc.Law § 440.10(2)(c). Mercer's application to the
Appellate Division, Fourth Department to review that denial was
denied on June 8, 1994.
On January 9, 1996, Mercer petitioned for a writ of error
coram nobis arguing that he was denied effective assistance of
appellate counsel based on his appellate counsel's failure to
challenge Judge Hannigan's jury instruction, defining the beyond
a reasonable doubt standard, on direct appeal. The Appellate
Division denied the petition on March 8, 1996. People v.
Mercer, 225 A.D.2d 1114, 639 N.Y.S.2d 878 (1996). Leave to
appeal to the Court of Appeals was denied on March 29, 1996.
People v. Mercer, 87 N.Y.2d 1022, 644 N.Y.S.2d 155,
666 N.E.2d 1069 (1996).
On August 27, 1996, Mercer filed the instant petition seeking
federal habeas relief for, inter alia, a denial of his Sixth
Amendment right to effective assistance of trial and appellate
counsel based on his trial attorney's failure to object to an
alleged improper reasonable doubt charge, and his appellate
attorney's failure to assert that ground on Mercer's direct
In response to Judge Arcara's order of October 29, 1996,
Mercer, on November 14, 1996, explained that his petition should
not be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1),
providing a one year period from the date a conviction becomes
final in which to petition for habeas relief from a district
court, as Mercer was required to exhaust state remedies,
including his petition for coram nobis relief which was
decided on March 8, 1996, before filing his petition. On
December 18, 1996, Judge Arcara deemed Mercer's petition timely
and Respondent was ordered to file his answer by February 10,
1997. Respondent's Answer, accompanied by the state court
records, was filed on February 10, 1997; Mercer filed a
Reply/Traverse on February 21, 1997.
On May 17, 1999, Mercer moved for an order extending his time
in which to file objections to that Report and Recommendation.
On May 20, 1999, Judge Arcara granted the request and extended
Mercer's deadline for filing objections to June 17, 1999.
Mercer's objections to the Report and Recommendation were filed
on June 15, 1999. By order dated June 17, 1999, Respondent was
given until July 2, 1999 to file a response to Mercer's
objections. On June 22, 1999, Mercer filed an amendment to his
objections to the May 6, 1999 Report and Recommendation. On July
1, 1999, Respondent filed a Memorandum of Law in opposition to
Mercer's objections (Docket Item No. 17) ("Respondent's Brief in
Opposition to Objection").
While Mercer's objections to the Report and Recommendation
were under consideration by Judge Arcara, the Second Circuit
ruled, on June 4, 1999, that a similar definition of reasonable
doubt contained in a jury charge given by Judge Hannigan in an
unrelated case was constitutionally defective, and stated that
"[a]n opinion further explaining the panel's reasons shall
follow forthwith." Gaines v. Kelly, 180 F.3d 371 (2d Cir.
1999). Judge Arcara referred the matter back to the undersigned
for further consideration in light of Gaines and directed that
counsel be appointed to represent Mercer. Order filed September
20, 1999 (Docket Item No. 18). The Second Circuit's decision was
published on February 1, 2000. Gaines v. Kelly, 202 F.3d 598
(2d Cir. 2000).
On October 19, 1999, in accordance with Judge Arcara's
direction, the court assigned Melissa Hancock Nickson, Esq., as
counsel to Mercer and conducted a hearing on October 27, 1999,
to consider whether Respondent's counsel, the Niagara County
District Attorney, should be disqualified based on the fact that
Mr. Murphy, now District Attorney of Niagara County, served as
Mercer's trial counsel. However, as the New York Attorney
General has since been substituted as Respondent's counsel in
this matter, the question of disqualification of the Niagara
County District Attorney's Office is deemed moot and need not be
On May 26, 2000, Respondent filed a Memorandum of Law (Docket
Item No. 30) ("Respondent's Memorandum"), and the Affidavit of
Barbra Kavanaugh, Assistant New York Attorney General in Charge.
(Docket Item No. 31) ("Kavanaugh Affidavit"), in opposition.
Mercer filed on June 9, 2000, a Reply Memorandum of Law (Docket
Item No. 32) ("Mercer's Reply Memorandum"), and a Reply
Affidavit of Melissa H. Nickson, Esq. (Docket Item No. 33)
("Nickson Reply Affidavit"). Oral argument was deemed
Based on the following, the petition should be DISMISSED.
On the evening of June 16, 1986, at approximately 9:00 P.M.,
13 year-old Karla Hillman was grabbed from behind by Mercer as
she walked from a bowling alley in Niagara Falls, New York, to a
nearby convenient store to telephone her aunt for a ride home.
(T. 114-16).*fn6 After a struggle, during which Hillman lost
a gold cross and chain which she had worn around her neck,
Mercer forced Hillman into his vehicle. (T. 117, 125, 139).
Mercer forced Hillman to perform oral sex on him as he drove to
a fielded area with Hillman locked in the vehicle. (T. 117-18).
stopped the car, pulled down Hillman's pants and unsuccessfully
attempted to have anal sex with her. (T. 118-19). Mercer asked
Hillman if she had any Vaseline or lotion and she responded that
she did not. (T. 119). Mercer then led Hillman out of the car to
a path in the field where he again attempted to have anal sex
with her, forced her to perform oral sex on him again, and
performed oral sex on her before he tried, unsuccessfully to
have sexual intercourse with her. (T. 119-20). Mercer instructed
Hillman not to tell anyone about what he was doing to her as he
did not want to go to jail and also told Hillman that they would
have to "do this again sometime." (T. 122-24). Mercer asked for
Hillman's telephone number which Hillman wrote on the top of a
photograph she had with her. (T. 124). Mercer then drove Hillman
to the house where she lived with her aunt and grandfather and
dropped her off. (T. 125).
Hillman went inside the house and telephoned her aunt who was
at a friend's house and asked her to come home. (T. 126).
Hillman's aunt took her to the hospital where the Niagara Falls
police were contacted and a rape protocol procedure was
performed on Hillman to gather and preserve evidence of the
crimes. (T. 126, 146). Hillman and her aunt next went to the
Niagara Falls police station where they met with Detective Fink
to whom Hillman reported she had given Mercer her telephone
number. (T. 146). Believing that Mercer may attempt to contact
Hillman, Fink arranged to have Hillman agree to meet Mercer if
he should call. (T. 127, 146).
Mercer telephoned Hillman the next day, apologized for the
previous night and told Hillman he wished to return her gold
cross and chain to her. (T. 127, 140, 147). Hillman agreed to
meet Mercer in front of a bakery at 8:30 that night and, as
planned, went to the bakery while her aunt and Detective Fink
observed from an unmarked police car. (T. 127, 147-48). Mercer
never appeared, but some time later he called Hillman again, at
which time Hillman told Mercer she could not meet him. (T. 128,
Just after midnight on June 22, 1986, 15 year-old Barbara
Bethke, was approached by Mercer as she walked in front of a
police station in Niagara Falls, New York. (T. 148-50). Holding
a screwdriver to her stomach, Mercer forced Bethke into his
vehicle and made Bethke undress. (T. 151-52, 154). Mercer drove
the car while fondling Bethke and forcing her to perform oral
sex on him. (T. 152, 154). Mercer placed "burn and antiseptic
ointment" from a tube in the vehicle's glove compartment on his
finger which he then stuck in Bethke's vagina. (T. 157). Mercer
drove to a dark, isolated area while continuing to force Bethke
to perform oral sex on him inside the car. (T. 152-53). However,
when Bethke bit Mercer's penis as hard as she could, Mercer
reacted by stabbing Bethke with the screwdriver in her leg, arm,
breast and temple and pulling out handfuls of her hair. (T.
153). When Mercer told Bethke if she let go he would let her out
of the car, Bethke released her bite and exited the car. (T.
154). Mercer also exited the car, ran around to the other side,
pushed Bethke up against the car and punched her, knocking her
to the ground. (T. 154, 159).
A police patrol car arrived and Mercer got back into his
vehicle and sped away. (T. 159). Bethke ran over to the police
who drove Bethke to the hospital where she was examined, her
stab wounds were stitched and a rape protocol procedure was
performed. (T. 159-60).
With Arbatosky locked in the car, Mercer forced Arbatosky to
perform oral sex on him as he drove to a dark deserted road. (T.
180-81). Mercer stopped the car, forced Arbatosky to remove her
pants and underwear, performed oral sex on her, attempted to
have sexual intercourse with her and bound her hands together
with her socks. (T. 182-84). Mercer exited the car and removed
some items from the trunk, including a tube from which he
squeezed out a substance, which he placed on Arbatosky's body
and inserted into her vagina. (T. 184-85). Mercer then had
sexual intercourse with Arbatosky and, when he finished, told
Arbatosky to get dressed and drove her home. (T. 185-86).
When Arbatosky arrived home, she reported the rape to her
father who was speaking on the telephone with the Niagara County
Sheriffs Department about Arbatosky's abduction which her
brother had witnessed. (T. 188, 218). The police arrived and
questioned Arbatosky whose parents then drove her to the
hospital where she was examined and a rape protocol procedure
was performed. (T. 219-20).
Niagara County Sheriffs Department Criminal Investigator Roger
Andrews interviewed Arbatosky with regard to the incident and
was able to locate a vehicle at the Cayuga Village Trailer Court
which matched the Arbatosky's description of the perpetrator's
vehicle. (T. 38, 46). Andrews and Niagara Falls Police
Department Detective Alan Brooks, who had interviewed Hillman
and Bethke following their attacks, assisted each other and
followed the described vehicle on several occasions. (T. 47-51,
275-77). Certain items which the victims had described as being
inside their attacker's vehicle, including a pair of fuzzy dice
hanging from the rear view mirror, a decal with the name "Jimmy"
attached to the lower left side of the driver's column, a radio
protruding from the dashboard, a tan interior, a square
hairbrush, menthol cigarettes, tapes, a tube of salve, a
screwdriver, a leather wrist band, rings and earrings, were all
observed inside the described vehicle while it was parked at the
Cayuga Village Trailer Court. (T. 52, 277).
Based on that information, a search warrant was obtained
authorizing the search of the vehicle, the trailer where Mercer
lived, and Mercer's person. (T. 277). On August 3, 1986, Andrews
and Brooks observed Mercer driving in the Town of Niagara and
pulled him over. (T. 54, 278, 291). Andrews and Brooks asked
Mercer to accompany them to the Niagara Falls Police Station for
questioning with regard to several complaints filed against him,
and Mercer complied. (T. 54-55, 278).
Mercer first denied any involvement in the crimes against the
three women, insisting that Hillman had willingly accompanied
him, that Bethke was a hitchhiker he had picked up in front of
the Niagara Falls Police Station who willingly undressed
herself, and admitted to picking up a female outside the Summit
Park Mall on another night, but denied having forcible sex with
her. (T. 56-57, 279-82). Mercer also stated that he had a
drinking problem and that when he drank, he did "stupid things."
(T. 294). Mercer was then arrested. (T. 58, 284).
Andrews, Brooks and Niagara Falls Police Officer Timothy
Bailey executed the search warrant of Mercer's bedroom in the
trailer he shared with his mother, and found several of the
items listed in the warrant including two gold chains, one with
a cross and the other with a locket with a blue face. (T. 63-64,
66, 284). (T. 66). The officers' search of Mercer's vehicle
revealed a tube of antiseptic and burn ointment, a black
hairbrush, an orange hairbrush with a broken handle, a
screwdriver, a decal bearing the name "Jimmy" on the dashboard
to the right of the steering column, a pair of green dice
from the rear view mirror, four packs of menthol cigarettes and
cassette tapes, a torn piece of a photograph, and several items
of clothing belonging to the victims. (T. 66-68, 75-76, 80). A
vacuum cleaner fitted with a new filter picked up several hair
and fibers from the vehicle's interior which were considered as
possibly relevant.*fn7 (T. 73).
Based on psychiatric examinations of Mercer and his mother,
performed at Mercer's attorney's request, clinical psychiatrist
Dr. Bruno C. Schutkeker opined that Mercer was psychotic and,
therefore, not responsible for his actions against the three
women. According to Dr. Schutkeker, Mercer was permanently brain
damaged from years of alcohol and drug abuse as well as several
head injuries. Dr. Schutkeker further opined that Mercer was
"beyond help" and that even with intense therapy Mercer should
be institutionalized for the rest of his life.
On October 10, 1986, Judge Hannigan granted a request made by
Bruno to have Mercer examined at his own expense at Children's
Hospital in Buffalo, New York to determine whether Mercer was
fit, under New York law, to stand trial. Copies of the test
results were to be provided to Dr. Schutkeker, defense counsel,
and Niagara County District Attorney. On December 11, 1986 at a
pretrial hearing before Judge Hannigan, Bruno informed the court
that Mercer was contemplating whether to assert an insanity
defense and would decide once records were received from
Children's Hospital in Buffalo, New York. (December 11, 1986
Pretrial Hearing T. at 3).
At a court appearance before Judge Hannigan on April 29, 1987,
Bruno, in connection with Mercer's insanity defense, requested
additional psychological testing be performed on Mercer by Dr.
Richard V. Primo, a clinical psychologist. (April 29, 1987 T.
2). Prosecutor Hurley did not object to that request and
arrangements were made to transport Mercer under guard to Dr.
Primo's office in Lewiston, New York for the requested testing.
(April 29, 1987 T. 3). Bruno then requested permission to
withdraw as Mercer's counsel based on a conflict of interest;
the motion was granted and the Niagara County Public Defender
was assigned as Mercer's counsel. (April 29, 1987 T. 5-6, 18).
On May 1, 1987, Niagara County Assistant Public Defender Matthew
J. Murphy, III, filed a notice of appearance on behalf Mercer as
defense counsel and, having been notified of the prosecution's
intention to offer into evidence certain statements of Mercer
constituting confessions or admissions, moved for a hearing to
determine the voluntariness of such statements. Oral argument on
that motion was held before Judge Hannigan on May 15, 1987,
following which Judge Hannigan reserved decision. On June 8,
1987, Judge Hannigan denied all requests except for a statement
relating to the location of Hillman's cross and chain which was
Based on his psychological examination of Mercer, on May 1,
1987, Dr. Primo diagnosed Mercer with continuous alcohol
dependence and paranoid personality disorder, determined Mercer
was of low intelligence, and opined that Mercer's nature was
hostile, he demonstrated poor reality testing, had inadequate
impulse control and required institutionalization.*fn8
On July 20, 1987, Hurley requested permission to have Mercer
examined by Dr. Michael Lynch, a psychiatrist at the Niagara
County Jail were Mercer was being held. Judge Hannigan granted
that request by order dated July 27, 1987. On August 26, 1987,
Mercer was examined at the Niagara County Jail by Dr. Lynch who
did not provide a diagnosis, but opined that Mercer was fit to
stand trial under New York law.*fn10
The five day jury trial as to all three incidents commenced on
September 28, 1987 and ended on October 2, 1987. Among the items
admitted into evidence at trial were various items and articles
of clothing recovered from Mercer's vehicle and residence and
which either belonged to the victims or which they identified as
seeing in Mercer's vehicle. Twenty-six witnesses testified on
behalf of the prosecution including the three victims and
various family members, the Niagara Falls police officers and
Niagara County deputy sheriffs who were involved in the
investigations, nurses and other health care professionals who
examined the victims at the hospital, a previous girlfriend of
Mercer, two forensic laboratory specialists and two
psychiatrists, Dr. Lynch and Dr. Joseph, who testified as expert
witnesses with regard to Mercer's mental state. The defense
presented as its sole witness another psychiatrist, Dr.
Schutkeker, who testified as an expert witness in support of
Mercer's insanity defense. Hillman, Bethke and Arbatosky each
identified Mercer at trial as the perpetrator of the sex crimes
committed against them. (T. 135-36 (Hillman); T. 158 (Bethke);
and T. 193 (Arbatosky)).
With regard to the psychiatric witnesses, Dr. Lynch testified
that prior to examining Mercer, he had reviewed psychologist
reports concerning Mercer prepared by Dr. Primo in July 1983 and
May 1987, by Dr. Schutkeker in July of 1987, and by Dr. Joseph
in July 1987. (T. 456). Dr. Lynch also reviewed Mercer's
psychiatric records from Children's Hospital. (T. 457).
According to Dr. Lynch, his mental status examination of Mercer
included inquiry as to Mercer's personal history, his education,
work experience and criminal history. (T. 458). Dr. Lynch asked
Mercer to share his thoughts on the episodes with the three
victims and Dr. Lynch testified Mercer had no trouble recalling
the three incidents and described them in detail. (T. 458-59).
When Dr. Lynch asked whether Mercer understood that he might be
arrested based on such actions, Mercer replied that he knew his
actions were wrong, but that he did not care that such actions
could lead to his arrest and incarceration. (T. 458-59).
Mercer admitted to Dr. Lynch having been previously arrested
for driving while under the influence, although Dr. Lynch
testified that nothing indicated that Mercer was under the
influence of drugs or alcohol when he committed the crimes
against the three girls. (T. 459-60). Dr. Lynch concluded that
he found no mental disease or defect indicating Mercer lacked a
substantial capacity to understand or appreciate either the
nature and consequences of his conduct or that such conduct was
wrong at the time he committed the crimes. (T. 461-62, 464). Dr.
Lynch also disagreed with Dr. Schutkeker's opinion insofar as
Dr. Schutkeker had opined that Mercer's cognitive ability was
impaired such that Mercer was not responsible for his actions.
very able to be intimidating, to know what he was
doing, certainly as far as the accounts were
certainly concerned, they were graphic, and there was
nothing that would suggest that there was something
the matter with him . . . by all accounts, there is
nothing to suggest that he didn't know what he was
doing, or couldn't differentiate that these things
Dr. Joseph further explained that although he did not dispute
that Mercer was troubled, to be troubled "does not necessarily
translate into a mental illness and an inability to be
responsible for one's actions." (T. 489). Moreover, Mercer
stated to Dr. Joseph that he knew Hillman was not a willing
participant and that he knew his actions toward her were wrong.
(T. 489). Mercer also claimed he knew his actions against the
other two victims were wrong and denied hearing voices. (T.
With regard to Mercer's mental state, Dr. Joseph opined he did
not agree with Dr. Schutkeker's finding that Mercer was
psychotic and overtly paranoid. (T. 49091). Rather, Dr. Joseph
believed Mercer had an antisocial personality which was
evidenced by such "unpleasant characteristics" as Mercer's
violent thoughts, anger, hostile and impulsive nature, poor
control and judgment, lack of conscience, indifference to the
welfare and concerns of others, and that Mercer was hedonistic,
wanton, cruel and self-centered. (T. 491-92). Dr. Joseph did not
believe that such characteristics indicated that Mercer was
mentally ill such that he did not know or appreciate that his
actions against the three victims were wrong. (T. 491, 492). Dr.
Joseph stated that Mercer did not appear delusional or display
any false beliefs which would be symptomatic of a major mental
illness. (T. 492). Dr. Joseph further noted that Mercer was very
focused when asked to recount his actions toward the victims and
that if Mercer's mental status been significantly compromised by
a mental illness, his recollection of such events would have
been "clumsy." (T. 495).
Testifying as an expert witness of behalf of Mercer, Dr.
Schutkeker explained that he interviewed Mercer's mother,
Phyllis Mercer, before examining Mercer to gain insight into
Mercer's background. (T. 380, 384). Dr. Schutkeker testified
that Phyllis became pregnant with Mercer shortly after high
school as a result of an affair with an older man and that she
was married to Mercer's father for only three weeks when he left
her. (T. 391). Mercer suffered seven severe head injuries as a
child. (T. 390). At the age of seven, Mercer committed several
acts of cruelty including pouring gasoline over cats and
incinerating them, and decapitating another cat. (T. 390).
Dr. Schutkeker described Mercer, who was problematic in school
and frequently expelled, as defiant, rebellious, troublesome,
obstreperous and delinquent. (T. 394). Dr. Schutkeker stated
that Mercer was at one time considered bright, although his
intellectual capacity deteriorated as his mental illness
progressed. (T. 395). Mercer's father reportedly suffered from a
character disorder as well as a drinking problem. (T. 391). When
Mercer was 16, he attempted to find his father who rejected the
opportunity to establish ties with his son. (T. 392). According
to Dr. Schutkeker, as a single mother, Phyllis was inadequate
and tended to overindulge Mercer with material things out of
guilt. (T. 392-93). Dr. Schutkeker attributed Mercer's hatred of
females to an unhealthy relationship with his mother and lack of
a father figure in his life, and explained that Mercer's attacks
on other females reflected the anger and hostility Mercer felt
toward his mother. (T. 393).
Upon Dr. Schutkeker's examination of Mercer on September 23,
1986, Mercer had been free of any drug or alcohol use for two
months and such abstention rendered Mercer "calm, more quiet,
more controlled, more in touch with reality." (T. 386). Dr.
Schutkeker stated that Mercer cooperated with Dr. Schutkeker as
best he could given his poor memory which Dr. Schutkeker
attributed to Mercer's drug use. (T. 386).
Dr. Schutkeker opined that Mercer was competent to stand
trial, but that Mercer did not possess the mental capacity to
appreciate that the actions of which he was accused were wrong.
(T. 386, 398). Dr. Schutkeker found Mercer bereft of judgment
and reason and suicidal, and that his lack of insight into his
alcohol problems was evident by his inability to learn from
experience. (T. 398, 400). According to Dr. Schutkeker, Mercer
felt personally persecuted by society, was unrealistic, and
lacked awareness or concern. (T. 400-401). In Dr. Schutkeker's
opinion, it was too late in Mercer's life for psychological
rehabilitation as Mercer was completely psychotic and very
dangerous, and there was no question that Mercer had committed
the crimes for which he stood accused. (T. 402-403). In his
testimony, Dr. Schutkeker emphasized that Mercer was not the
type of individual who if adjudged not guilty by reason of
insanity would be institutionalized for only a few years before
being set free to commit such crimes again as no amount of
therapy would ever ...