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MERCER v. HERBERT

February 27, 2001

JAMES R. MERCER, PETITIONER,
V.
VICTOR T. HERBERT, SUPERINTENDENT, RESPONDENT.[FN1]



The opinion of the court was delivered by: Arcara, District Judge.

ORDER

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 issue. In 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.

IT IS SO ORDERED.

SUPPLEMENTAL REPORT and RECOMMENDATION

JURISDICTION

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, 2000.

BACKGROUND*fn3

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 notice.

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 appeal.

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 6, 1999, the undersigned issued a Report and Recommendation recommending that the petition be denied in its entirety. It was specifically recommended that Mercer's ineffective assistance of counsel claims, predicated on the allegation that Judge Hannigan's definition of the term "reasonable doubt" imposed a lesser burden of proof on the prosecution than constitutionally required, be denied because Mercer failed to demonstrate that his trial counsel's failure to object to the trial court's "reasonable doubt" instruction constituted legal representation that was so deficient as to prejudice his defense. May 6, 1999 Report and Recommendation at 33-40. Accordingly, this court found there was no merit to Mercer's claim that his appellate counsel rendered ineffective assistance when he failed to appeal Mercer's conviction based on the trial counsel's failure to object to the reasonable doubt charge.

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 further addressed.

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 unnecessary.

Based on the following, the petition should be DISMISSED.

FACTS

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, 140, 148).

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).

In the evening of July 28, 1986, 17 year-old Tammy Arbatosky, walked in the Summit Park Mall parking lot, located in the Town of Niagara, New York, to the spot where she usually waited for her brother with whom she often walked home from her job at the mall. (T. 173-74). Mercer pulled his vehicle up behind Arbatosky and asked for directions. (T. 177). Arbatosky gave Mercer the requested directions, turned around and Mercer jumped her from behind. (T. 178). Mercer forced Arbatosky into the car, threatening to kill her with a screwdriver he wielded. (T. 178). Arbatosky's brother witnessed the incident from a distance. (T. 179).

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 hanging 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 suppressed.

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. (T. 463).

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 were wrong.

(T. 488).

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. 489).

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 ...


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