United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2007
Charles R. Fulbruge III
No. 06-70040 Clerk
KEVIN MICHAEL WATTS, A/K/A KEVIN VANN,
Petitioner-Appellant,
versus
NATHANIEL A. QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
Case No. SA-05-CA-1029-OG
_________________________________________________________________
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Petitioner Kevin Michael Watts appeals the district
court’s denial of his petition for a certificate of appealability
(“COA”) to pursue his claim for habeas relief from a death penalty.
The district court did not err. We deny a COA.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are adequately recited by the
district court. See Watts v. Quarterman, 448 F. Supp. 2d. 786,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
792-95 (W.D. Tex. 2006). In brief, on the morning of March 1,
2002, Watts entered the Sam Won Gardens restaurant in San Antonio,
Texas, brandishing a Tec-22 pistol. Before demanding any money,
Watts murdered restaurant employees Hak Po Kim, Yuan Tzu Banks, and
Chae Sun Shook, shooting them execution-style in the back of the
head. He then ordered Hye Kyong Kim, the wife of Hak Po Kim, to
retrieve her dying husband’s wallet and car keys from his pants
pocket. Watts told her to empty the cash register. Holding Mrs.
Kim at gunpoint, Watts ordered her into the Kims’ vehicle and fled
the scene with her. For several hours, Watts sadistically tortured
and sexually assaulted Mrs. Kim both in the vehicle and later in
his mother-in-law’s apartment – at one point allowing his roommate
to rape her. Watts himself repeatedly sodomized Mrs. Kim, forced
her to ingest narcotics, and attempted to insert the Tec-22 pistol
into her vagina. San Antonio Police captured Watts only after he
unsuccessfully attempted to escape by ramming the Kims’ vehicle
into two police cruisers.
Watts was indicted and found guilty of capital murder and
was sentenced to death. The Texas Court of Criminal Appeals
affirmed the conviction and sentence. See Watts v. State, 2004 WL
3218854 (Tex. Crim. App. Dec. 15, 2004) (unpublished). Watts did
not seek review in the United States Supreme Court.
His application for a state writ of habeas corpus was
denied. See Ex Parte Watts, 2005 WL 2659444 (Tex. Crim. App. Oct.
19, 2005) (unpublished). Watts timely filed a federal writ
2
petition in the district court, which denied habeas relief and
refused to grant a certificate of appealability (COA). Watts
accordingly filed the instant application for COA with this court.
STANDARD OF REVIEW
Watts’s right to appeal the denial of habeas relief is
governed by the COA requirements of the Antiterrorism and Effective
Death Penalty Act of 1996. See 28 U.S.C. § 2253(c); Slack v.
McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 1600 (2000); Morris
v. Dretke, 379 F.3d 199, 203 (5th Cir. 2004). The COA is a
jurisdictional prerequisite to review by this court and will not be
granted unless the petitioner demonstrates a substantial showing of
the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2);
Tennard v. Dretke, 542 U.S. 274, 282, 124 S. Ct. 2562, 2569 (2004).
Because Watts challenges the district court’s dismissal of habeas
relief on the basis of procedural default, he must show that
jurists of reason would find it debatable whether his petition
states a valid claim of the denial of a constitutional right and
whether the district court was correct in its procedural ruling.
See Slack, 529 U.S. at 484, 120 S. Ct. at 1604; Morris, 379 F.3d at
204. The decision to grant a COA is, however, a threshold
determination and does not require “full consideration of the
factual or legal bases adduced in support of the claim.” We
instead conduct only “an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-El v.
3
Cockrell, 529 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). Since
this is a capital case, we resolve any doubt surrounding the
propriety of issuing a COA in Watts’s favor. See Cardenas v.
Dretke, 405 F.3d 244, 248 (5th Cir. 2005), cert. denied, __U.S.__,
126 S. Ct. 2986 (2006).
II. DISCUSSION
In his application, Watts takes issue with two of the
district court’s adverse rulings. He contends first that the
federal court erred because it rejected his contention that the
state trial court violated his Eighth and Fourteenth Amendment
rights to present mitigating evidence during the penalty phase of
his trial. The trial court allegedly excluded certain testimony of
Linda Mockeridge, a clinical social worker, chemical dependency
counselor, and self-described “mitigation specialist.”1 Second,
Watts objects to the court’s holding that he procedurally defaulted
this claim in the state courts.
The procedural background of these contentions is
illuminating. Following the trial’s guilt phase, the trial judge
held a Daubert hearing outside the presence of the jury during
which Mockeridge described her professional qualifications and the
1
Had Mockeridge been allowed to fully testify, Watts asserts
that she would have opined on a variety of psychological and
environmental factors that negatively affected Watts’s childhood
development, including sexual molestation, substance abuse, an
impaired decisionmaking capacity, and a host of other purportedly
mitigating characteristics that he claims would have influenced
the jury’s decision to punish him with death. See Watts, 448 F.
Supp. 2d. at 801.
4
extent of her research into Watts’s personal history. She
concluded that Watts was likely in a state of drug-induced
psychosis at the time of the offense. On cross-examination by the
state, Mockeridge admitted that she had been unaware of the legal
definition of the phrase “mitigating evidence” before she prepared
for Watts’s trial; that she had never previously testified in a
capital case or been recognized as a mitigation expert; and that
her formal training in “mitigation science” consisted only of a
three-day seminar conducted by the Texas Defenders Service. The
prosecution then objected to the introduction of her testimony.
The trial judge nonetheless overruled the objection, stating that
Mockeridge would be permitted to testify as an expert, but that the
court would not certify her to the jury as an expert in the field
of “mitigation science.” The trial judge further ruled that a
summary chart prepared by Mockeridge that contained various hearsay
statements would not be displayed to the jury, and that the
prosecution’s concerns regarding the chart’s nonhearsay contents
would be disposed of on a question-by-question basis in open court.
Watts called Mockeridge as a witness during the penalty
phase of his trial. As she did during the Daubert hearing,
Mockeridge testified before the jury that she had interviewed Watts
and certain of his family members and had reviewed his school,
jail, and psychiatric records. Based on the assembled data, she
stated her belief that Watts had suffered a psychologically
traumatizing childhood and that he committed the murders while in
5
a psychotic state. The prosecution again objected that Mockeridge
was being offered as an expert. In a discussion at the bench, the
trial judge accepted defense counsel’s explanation that the line of
questioning was merely an attempt “to prove up” the witness’s
qualifications, but admonished Watts’s counsel not to elicit any
inadmissible hearsay testimony from the witness:
THE COURT: I’m going to overrule the objection.
And as I said, in an abundance of
caution, I’m going to let her
[Mockeridge] testify. But, again,
remember the hearsay issue and the
chart issue.
MS. TUSSAY-COOPER: Yes, Your Honor.
THE COURT: And I will sustain the objection
then.
MS. TUSSAY-COOPER: All right. Thank you.
Watts cites this exchange in support of his contention that the
trial judge impermissibly ruled that Mockeridge could not testify
as an expert before the jury, and that Watts was thereby deprived
of the opportunity to provide crucial mitigation evidence in
violation of his constitutional rights. At that time, however, the
record demonstrates that defense counsel understood that the judge
was not sustaining an objection to Mockeridge’s status as an expert
because counsel continued to establish the expert’s qualifications
without objection from the state. Nonetheless, Watts’s counsel
neither attempted to elicit any further opinion testimony from the
witness nor sought to introduce any properly authenticated copies
of the records relied upon by Mockeridge and used in the summary
6
chart.2 In short, besides the hypothesis that Watts committed his
crimes during a drug-fueled psychosis, defense counsel made no
effort whatsoever to introduce any further opinion testimony from
Mockeridge.
After the jury was charged, Watts’s counsel offered the
summary chart and an affidavit-style report authored by Mockeridge
as a bill of exceptions, which was accepted by the court. The
trial judge noted for the record that the objection to the chart
concerned only the hearsay testimony contained therein. Watts
raised no point of error on direct appeal concerning the trial
court’s rulings on the Mockeridge testimony. These issues were
first raised in his state habeas petition and were held to be
procedurally barred.
Based on these events, the federal district court ruled
correctly that federal courts are bound by the state courts’
determination that Watts’s claim concerning the limitation of
Mockeridge’s testimony is procedurally barred. “This Circuit has
held that the Texas contemporaneous-objection rule is strictly or
regularly applied evenhandedly to the vast majority of similar
claims, and is therefore an adequate procedural bar.” Parr v.
Quarterman, 472 F.3d 245, 253 (5th Cir. 2006) (quoting Dowthitt v.
Johnson, 230 F.3d 733, 752 (5th Cir. 2000)) (internal quotation
2
The defense made no attempt to call witnesses, such as
Watts’s family members or acquaintances, who possessed personal
knowledge of Watts’s traumatic childhood or any other purportedly
mitigating evidence contained in the summary chart.
7
marks omitted). Watts made no attempt to contemporaneously object
to the trial court’s evidentiary rulings at trial or on direct
appeal and thereby failed to preserve his claim of constitutional
error. He raised a point of error regarding the trial court’s
evidentiary ruling for the first time in his state habeas
application, which, under Texas law, is too late. Federal habeas
review is barred here because Watts’s violation of the state
procedural rule represents an independent and adequate basis to
support the judgment. See Pippin v. Dretke, 434 F.3d 782, 792 (5th
Cir. 2005); Rowell v. Dretke, 398 F.3d 370, 375 (5th Cir. 2005).
No jurist of reason could find otherwise. This conclusion is
dispositive for denial of COA.
Irrespective of procedural bar, however, Watts suggests
that the trial court’s evidentiary ruling amounts to error of a
constitutional dimension because it allegedly led defense counsel
to believe that instead of excluding only the hearsay portions of
the summary chart, the trial court had actually ruled that
Mockeridge was entirely precluded from providing any expert
testimony whatsoever. The state habeas court’s findings of fact
address this issue and explain that, whatever the particular
wording the trial court used in overruling the state’s objection,
all parties understood the ruling to be confined only to the
contents of the chart, and that it in no way limited Mockeridge’s
ability to offer any otherwise admissible expert opinion testimony.
This rendition is obviously accurate, because immediately after the
8
ruling defense counsel returned to the same line of questioning
establishing Mockeridge’s professional background and status as an
expert witness without objection from the state. Had defense
counsel sincerely understood the trial judge’s ruling to be a
categorical bar to Mockeridge’s offering any opinion testimony,
there is no reason why counsel would have persisted in proving up
Mockeridge’s qualifications as an expert. The witness’s ability to
offer opinion testimony independent of the chart’s hearsay
statements was neither limited nor revoked by the trial judge’s
ruling, as the post-ruling behavior of both parties confirms. The
federal court did not misconstrue the trial record, and the state
courts made no unreasonable determination of relevant facts.
Further, Watts’s contention that he was not required to
contemporaneously object at trial because he submitted a post-trial
bill of exceptions to the trial court, raises no reasonably
debatable issue concerning the violation of his constitutional
rights.3 While the submission of mitigating evidence is highly
relevant to the assessment of a capital defendant’s moral
3
Watts cites our decision in Mayo v. Lynaugh, 893 F.2d 683,
686-88, 690 (5th Cir. 1990), for the proposition that the
submission of mitigation evidence in the form of an offer of
proof preserves a claim of trial error even without a
contemporaneous objection. Mayo says nothing of the sort. Mayo
involved the fact-specific question whether procedural default
attached to petitioner’s untimely asserted Penry claim when the
state failed to raise the procedural-default issue below. Id. at
686. Watts has neither asserted a Penry claim, nor can he
suggest that the state failed to argue that he had procedurally
defaulted on challenging the trial court’s evidentiary ruling.
Mayo is inapposite.
9
blameworthiness, see, e.g., Rompilla v. Beard, 545 U.S. 374, 377-
79, 125 S. Ct. 2456, 2460-62 (2005), the contemporaneous-objection
requirement is not abrogated in the context of capital sentencing,
nor are the rules of evidence or the prohibition against hearsay.
See, e.g., McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999),
cert. denied, 528 U.S. 1125, 120 S. Ct. 955 (2000). Thus, the
state courts’ evidentiary rulings are not inherently suspect. Even
if they were incorrect, however, federal habeas relief may be
granted only under exceptional circumstances when the evidentiary
ruling violates a specific constitutional right or is so egregious
that it renders the trial fundamentally unfair. Brown v. Dretke,
419 F.3d 365, 376 (5th Cir. 2005), cert. denied, __U.S.__,
126 S. Ct. 1434 (2006); McGinnis, 181 F.3d at 693 (ruling limiting
expert psychologist’s hearsay testimony during penalty phase did
not violate due process because the exclusion did not render the
trial “fundamentally unfair”). A due process violation arises only
when the excluded evidence “is a crucial, critical, highly
significant factor in the context of the entire trial.” Johnson v.
Puckett, 176 F.3d 809, 821 (5th Cir. 1999).
Watts’s sole evidentiary contention is that the trial
court stifled his ability to present Mockeridge’s full range of
“expert” opinion. Watts does not challenge the accuracy of the
ruling that he could not present as fact the hearsay statements
underlying Mockeridge’s conclusions. So understood, this complaint
does not concern crucial or critical evidence within the meaning of
10
the due process clause. Watts has made no showing that jurists of
reason would find merit in his constitutional claim or that our
refusal to address his claim will result in a fundamental
miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,
749-50, 111 S. Ct. 2564, 2565 (1991).
For these reasons, we conclude that Watts’s failure to
timely assert his evidentiary objection in state court bars what
otherwise would be a substantively unmeritorious claim of
constitutional error. Watts’s request for COA is DENIED.
11