Harris v. Cockrell

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 01-41395 _______________ DAVID RAY HARRIS, Petitioner-Appellee- Cross-Appellant, VERSUS JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant- Cross-Appellee. _________________________ Appeal from the United States District Court for the Eastern District of Texas _________________________ November 18, 2002 Before JOLLY, SMITH, and EMILIO M. in his capital trial was unconstitutionally pre- GARZA, Circuit Judges. cluded from giving mitigating effect to evi- dence of his alcoholism and that the admission JERRY E. SMITH, Circuit Judge: of evidence of an extraneous offense of which he had been acquitted denied him a fair trial. The State of Texas appeals the grant of a We affirm in part , reverse in part, and render writ of habeas corpus pursuant to 28 U.S.C. judgment in favor of the state. § 2254. The petitioner, David Harris, cross- appeals the rejection of his claims that the jury I. effect to Harris’s mitigating evidence related In 1985, Harris entered the apartment of to provocation and that Harris was prejudiced Mark Mays while Mays and his girlfriend, by ineffective assistance of counsel. We affirm Roxanne Lockard, were sleeping. Armed with the rejection of the remaining claims. a revolver, Harris went into the bedroom and awakened them. After instructing Mays to II. lock himself in the bathroom, Harris led Lock- At the sentencing phase, the jury answered ard out of the apartment at gunpoint and di- affirmatively the three special issues related to rected her to get into his truck. deliberateness, future dangerousness, and inad- equate provocation. Consequently, Harris was Mays emerged from the apartment with a sentenced to death. Citing Penry v. Lynaugh gun, and the two men exchanged fire. Ac- (“Penry I”), 492 U.S. 302 (1989), and Penry cording to Harris, Mays shot first, hitting Har- v. Johnson (“Penry II”), 532 U.S. 782 (2001), ris in the neck, then in the shoulder, before Harris contended that the Texas special issues Harris began shooting at Mays. After shooting framework was unconstitutional as applied to Mays several times, once at close range, Harris his case, because it precluded the jury from left. He was found guilty of capital murder. giving effect to potentially mitigating evidence related to provocation by the victim and Har- This appeal raises several claims related to ris’s alcohol abuse. The district court granted the conduct of the sentencing phase of the relief on the claim based on the evidence of trial. The state appeals the district court’s provocation and rejected the claim as to evi- grant of habeas relief that was based on two of dence of alcohol abuse. We conclude that the Harris’s claims: first, that the special instruc- special issues permitted the consideration of tions given to the jury failed to provide an ade- both types of mitigating evidence. quate vehicle for the jury to give effect to Harris’s evidence of provocation; and second, A. that the failure of counsel to present certain In Penry I, 492 U.S. at 328, the Court held items of potentially mitigating evidence consti- that the Texas special issues were constitution- tuted ineffective assistance. Harris cross- ally deficient as applied to the defendant, appeals the rejection of his additional claims because they failed to provide the sentencing that the special issues were unconstitutionally jury with an adequate means of giving effect to flawed in that they precluded the jury from mitigating evidence of severe mental retarda- giving effect to evidence of Harris’s alcohol- tion and abuse. Harris claims that these spe- ism; that the prosecutor’s allegedly improper cial issues likewise precluded the jury from closing argument during the guilt-innocence giving mitigating effect to his evidence of alco- phase denied Harris a fair trial; and that Harris hol abuse, in violation of Penry I. was denied a fair sentencing determination by the admission of evidence of an extraneous of- To form the basis of a Penry claim, mitigat- fense of which he had been acquitted. ing evidence “must demonstrate a ‘uniquely severe permanent handicap[] with which the The district court erred in deciding that the defendant was burdened through no fault of jury instructions at the punishment phase pro- vided an insufficient vehicle for the jury to give 2 his own.’”1 Under this definition, neither weight apart from intoxication at the time of a evidence of alcoholism nor evidence of intoxi- crime,” James, 987 F.2d at 1121 n.6, the sec- cation at the time of the offense constitutes ond special issue, which relates to future dan- Penry evidence. 2 gerousness,5 provided a means for giving miti- gating effect to Harris’s evidence that he is an The jury was able to give mitigating effect alcoholic. See id. at 1121. to the evidence of Harris’s alcoholism through its answers to the first and second special is- Trial counsel presented testimony at the sues. Evidence of intoxication can be fully sentencing phase that Harris’s history of vio- considered under the first special issue,3 which lent conduct stemmed from his alcoholism, asked the jury to evaluate the deliberateness of which could be brought under control. The Harris’s conduct.4 Furthermore, to the extent jury reasonably could have considered this tes- that “alcoholism has independent mitigating timony when evaluating whether Harris was a continuing danger to society. See id. There- fore, the district court was correct in rejecting 1 Turner v. Johnson, 106 F.3d 1178, 1189 (5th Harris’s Penry claims based on his mitigating Cir. 1997) (quoting Graham v. Collins, 950 F.2d evidence related to alcoholism and intoxica- 1009, 1029 (5th Cir. 1992) (en banc), aff’d, 506 tion. U.S. 461 (1993)). B. 2 See Lackey v. Scott, 28 F.3d 486, 489 (5th Citing Penry II, the district court held that Cir. 1994) (“Unlike Penry's mental retardation and the third special issue6 did not provide the jury childhood abuse, ‘voluntary intoxication is not the with an effective means for consideration of kind of uniquely severe permanent handicap[ ] with evidence that Mays fired his weapon first. In which the defendant was burdened through no fault Penry II, 532 U.S. at 789, jurors were given of his own that requires a special instruction to the same three special issues submitted in this ensure that the mitigating effect of such evidence finds expression in the jury's sentencing decision.’” case. They also were given a supplemental (quoting Cordova v. Collins, 953 F.2d 167, 170 “nullification instruction,” directing jurors to (5th Cir. 1992) (internal quotes omitted)); Tucker answer any special issue in the negative, ir- v. Johnson, 115 F.3d 276, 282 (5th Cir. 1997) respective of the evidence on that special is- (“[S]elf-inflicted chronic drug and alcohol abuse sue, if they believed the mitigating circum- and the resulting arrested emotional development stances rendered a life sentence more appro- do not constitute a unique handicap ‘with which the priate than death. Id. at 789-90. In essence, defendant was bur dened through no fault of his own.’”). 3 5 The first special issue reads as follows: “Was The second special issue reads: “Is there a the conduct of the defendant that caused the death probability that the defendant will commit criminal of the deceased committed deliberately and with the acts of violence that will constitute a continuing reasonable expection [sic] that the death of the threat to society?” deceased or another would result?” 6 The third special issue poses the question: 4 Tucker, 115 F.3d at 282; Lackey, 28 F.3d at “Was the conduct of the defendant in killing the 489; James v. Collins, 987 F.2d 1116, 1121 (5th deceased unreasonable in response to the provoca- Cir. 1993); Cordova v. Collins, 953 F.2d at 170. tion, if any by the deceased?” 3 the jury could give effect to the nullification in- slaughter defense at the guilt-innocence phase. struction only by answering one of the special issues untruthfully. Id. at 799. The Court held that this nullification instruction failed to The state trial court’s construction of the provide an adequate vehicle for the jury to third special issue defines the provocation make a reasoned moral response to Penry’s inquiry more broadly than is the case with the mitigating evidence, because it “it made the guilt-innocence inquiries of self-defense and jury charge as a whole internally contradictory, manslaughter.7 In other words, a reasonable and placed law-abiding jurors in an impossible jury could find that the evidence of provoca- situation.” Id. tion was insufficient to justify a verdict of voluntary manslaughter but sufficient to justify The district court noted that by rejecting a negative answer to the third special issue. Harris’s defense of voluntary manslaughter, Indeed, Harris’s trial counsel specifically told the jury found that the killing was not done the jurors, during argument at the punishment “under the immediate influence of passion phase, that their guilty verdict did not foreor- based upon adequate cause.” At the sentenc- dain an affirmative answer to the third-special ing phase, the court continued, a juror who be- issue. Therefore, the district court erred in lieved that Harris should receive a life sentence granting relief to Harris on this issue. instead of the death penalty, because the victim shot first, could act on that belief only by an- III. swering in the negative the third special issue, The district court held that counsel’s failure which addresses whether the defendant’s con- to present certain items of potentially mitigat- duct in killing the victim was reasonable in ing evidence at the punishment phase consti- light of any provocation. tuted ineffective assistance of counsel. In par- ticular, the court cited the failure of trial coun- The court reasoned that such a response sel to introduce evidence concerning Harris’s would be inconsistent with the jury’s rejection troubled childhood and family background, of Harris’s manslaughter defense and that a drug and alcohol problems, and prior prison juror could not logically answer the third spe- record. cial issue in the negative. As a result, the court concluded, the jury could not give miti- We need not decide this question, for, even gating effect to the evidence of provocation. assuming arguendo the correctness of the court’s substituted findings and its conclusion Penry II is inapplicable here, because the that counsel’s conduct constituted deficient jurors were not directed to give untruthful re- performance, the court erred in holding that sponses or to violate their oaths to give effect this performance prejudiced the defense under to the mitigating evidence. There are no in- Washington, 466 U.S. at 694, which requires ternal contradictions of the sort created by the the claimant to demonstrate that “there is a nullification instruction considered in Penry II. reasonable probability that, but for counsel’s Further, even if Penry II were applicable, the district court erred in holding that a negative answer to the third special issue is inconsistent 7 See Evans v. State, 601 S.W.2d 943, 946 with the jury’s rejection of the voluntary man- (Tex. Crim. App. 1980); Brown v. State, 554 S.W.2d 677, 678-79 (Tex. Crim. App. 1977). 4 unprofessional errors, the result of the pro- been repeatedly beaten by his father, that while ceeding would have been different.” In the his parents were imprisoned he spent time in context of a claim that counsel rendered inef- an abusive foster home, and that he had been fective assistance by failing to present evidence returned to the custody of his abusive parents at the punishment phase of a capital murder upon their release from prison. Williams, 529 trial, the inquiry is whether there is a reason- U.S. at 395-96. able probability that, had the evidence been presented, it would have altered the punish- The jury could have viewed much of the ment verdict.8 evidence omitted by Harris’s trial counsel as either mitigating or aggravating. Testimony The district court based its finding of pre- regarding Harris’s family background would judice on its comparison of the circumstances reveal that despite some emotional abuse, he of Harris’s case to those in two similar cases, came from a stable family environment. In Duhamel v. Collins, 955 F.2d 962 (5th Cir. addition, evidence relating to his “good” pri- 1992), and Williams v. Taylor, 529 U.S. 362 son record would include a description of his (2000). Harris’s mitigating evidence is similar violent behavior while incarcerated, and taken to that which this court characterized as as a whole likely would be aggravating rather “weak” in Duhamel, 955 F.2d at 966. The than mitigating. The failure to present such proposed evidence of Harris’s mental retarda- double-edged evidence is not prejudicial.10 tion is his IQ score of 88 in the seventh grade. This is not strongly mitigating evidence such Finally, there is overwhelming evidence of that its omission is likely to cause prejudice.9 violence in Harris’s background, which ne- Similarly, the evidence of an abusive child- gates the likelihood that additional evidence hood is less than compelling. Harris’s evi- would have resulted in a different outcome. dence of abuse includes testimony that, al- See Santellan v. Cockrell, 271 F.3d 190, 198 though he was raised in a stable family envi- (5th Cir. 2001), cert. denied, 122 S. Ct. 1463 ronment, his father played favorites among his (2002). In light of the overall weakness of the children and blamed Harris for the death of his proposed mitigating evidence, and the fact that brother. This evidence pales in comparison to its introduction would have resulted in the pre- that omitted by the trial attorneys in Williams, sentation of additional evidence of Harris’s in which the Court held that the defendant had past violent conduct, there is no reasonable proved prejudice. The mitigating evidence probability that the presentation of this addi- available there demonstrated that the defen- tional evidence would have altered the out- dant’s parents were imprisoned for criminal come of the punishment verdict. Therefore, neglect of their children, that defendant had Harris failed to demonstrate prejudice, and the district court erred in granting relief on his claim of ineffective assistance. 8 See Washington, 466 U.S. at 695; Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994). 9 10 See Duhamel, 955 F.2d at 966 (holding that See, e.g., Ransom v. Johnson, 126 F.3d 716, the omission of evidence that the defendant “was 723-24 (5th Cir. 1997); Cockrum v. Johnson, 119 moderately mentally retarded with an IQ of 56" did F.3d 297, 301, 303-05 (5th Cir. 1997); Faulder v. not result in prejudice). Johnson, 81 F.3d 515, 519-20 (5th Cir. 1996). 5 IV. tor’s statements were improper, prosecutorial Harris contends that his right to a fair trial remarks are a sufficient ground for habeas re- was compromised by the prosecutor’s improp- lief only if they are so prejudicial that they er closing arguments at the guilt-innocence render the trial fundamentally unfair.11 Such phase of the trial. Specifically, Harris com- unfairness exists “only if the prosecutor’s plains that the prosecutor improperly asked the remarks evince ‘either persistent and pro- jury to convict him on the basis of the alleged nounced misconduct or . . . the evidence was expectations and knowledge of the commu- so insubstantial that (in probability) but for the nity. The following exchange forms the basis remarks no conviction would have of his claim: occurred.’”12 Mr. McWilliams [the prosecutor]: La- The prosecutor’s remarks were neither re- dies and gentlemen, there’s one verdict peated nor pronounced,13 and in light of the that’s proper in this case. You’ve known it since yesterday, the verdict that family and those police officers and 11 Ortega v. McCotter, 808 F.2d 406, 410 (5th the people of Jefferson County know is Cir. 1987) (quoting Whittington v. Estelle, 704 proper in this case SS F.2d 1418, 1421 (5th Cir. 1983)); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985); see Mr. Powell [defense]: Your Honor, we also Jackson v. Johnson, 194 F.3d 641, 653 (5th would object to counsel arguing that the Cir. 1999) (“[T]he appropriate inquiry is . . . jury should base their decision on the whether the prosecution’s comments so infected the expectation of anybody, except on the trial with unfairness that there is a reasonable evidence. probability that the result would have been differ- ent if the proceeding had been conducted prop- erly.”). The Court: Sustained. 12 Kirkpatrick, 777 F.2d at 281 (quoting Whit- Mr. Powell: We would further request, tington, 704 F.2d at 1421); see also Menzies v. Your Honor, that the Court instruct the Procunier, 743 F.2d 281, 288-89 (5th Cir. 1984) jury to disregard Mr. McWilliams’ state- (“[A] prosecutor’s improper argument will, in it- ment. self, exceed constitutional limitations in only the most ‘egregious cases.’” (quoting Houston v. Es- The Court: So instructed. telle, 569 F.2d 372, 382 (5th Cir. 1978)). 13 Mr. McWilliams: It’s the verdict that In an attempt to create the impression that the we know you will return, because it’s contested remarks were repeated, Harris quotes the prosecutor in misleading fashion. Specifically, justice in this case. It’s not justice be- Harris quotes the prosecutor’s remarks after the cause I say it is. It’s justice because you initial objection was sustained as follows: “It’s know it from the evidence you have here [the verdict desired by the family, police, and the . . . . That verdict is guilt of Capital people] the verdict we know you will return . . . .” Murder. The descriptive aside inserted into this quote is misleading, because it is not apparent that the Even if Harris is correct that the prosecu- prosecutor is using the pronoun “it” to incorporate (continued...) 6 considerable evidence of guilt, there is no rea- collateral estoppel, Ashe v. Swenson, 397 U.S. sonable probability that, in their absence, the 436 (1970), that doctrine “does not preclude result would have been different. That is, “we [the state] from relitigating an issue when it is cannot say that the prosecutor’s remarks in presented in a subsequent action governed by this case were a crucial, critical, highly signif- a lower standard of proof,” Dowling v. United icant factor upon which the jury based its ver- States, 493 U.S. 342, 349 (1990). dict of guilty.” Accordingly, those statements did not render Harris’s trial fundamentally Because “extraneous offenses offered at the unfair. punishment phase of a capital trial need not be proven beyond a reasonable doubt,” Vega, 149 V. F.3d at 359, the relevant standard of proof Harris contends that he was deprived of a necessarily was lower than that at Harris’s fair sentencing determination by the introduc- criminal trial for kidnaping. Collateral estop- tion of evidence concerning a crime for which pel therefore did not preclude the introduction he had been indicted but acquitted. During the of evidence pertaining to these charges, and sentencing phase, the state introduced evi- Harris’s due process rights were not violated. dence that Harris had been charged with burg- See Vega, 149 F.3d at 359. lary, robbery, attempted robbery, and kidnap- ing. He eventually was acquitted of kidnaping In summary, we REVERSE the grant of and argues that the introduction of this evi- habeas relief, AFFIRM the denial of all re- dence was contrary to the collateral estoppel maining claims, and RENDER judgment in aspect of double jeopardy and thus constituted favor of the state. a violation of his due process rights. The introduction of evidence of extraneous offenses of which the defendant has been ac- quitted is consistent with due process. Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Al- though due process requires the application of 13 (...continued) the preceding objectionable statements appealing to community expectations. In fact, the context omitted by Harris supports a very different construction of the remarks: “It’s the verdict that we know you will return, because it’s justice in this case. It’s not justice because I say it is. It’s justice because you know it from the evidence you have here . . . . That verdict is guilt of Capital Murder.” When the statement is viewed in its entirety, the most reasonable reading is that “it” refers to a verdict of guilty, not the verdict expected by the community. 7