Harris v. Collins ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-2918
_______________________
CURTIS PAUL HARRIS,
Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(April 22, 1993)
Before GARWOOD, JONES, and EMILIO GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Thirteen years ago, Curtis Paul Harris was first
convicted of murder in a Texas court and was sentenced to death.
He has since been tried, convicted and sentenced to death again,
and he has unsuccessfully sought relief on direct appeal and by
habeas corpus in state court. These protracted proceedings lend
new meaning to the phrase "exhaustion" of state remedies.1 After
Harris filed a federal petition for writ of habeas corpus, the
district court, in a very thoughtful opinion, denied relief on all
1
Each time Harris appealed on direct review to the Texas
Court of Criminal Appeals, that court took three years to address
his case.
claims and refused to grant a certificate of probable cause to
appeal. Harris now appeals to this court for a certificate of
probable cause. We deny the application.
FACTS AND PROCEDURAL HISTORY
On the night of December 11, 1978, Curtis Paul Harris,
James Manuel, Curtis's girlfriend Valerie Rencher and his brother
Danny Harris drove their car to visit a friend in Bryan. Upon
arriving at the friend's house they discovered she was not there.
Their car would not start, and the three men began to beat up the
car and tear up the interior.2
When no neighbor could be found to help with the car the
group walked down the road and flagged a passing pick-up truck. A
would-be Good Samaritan, Tim Merka, stopped his truck and attempted
for 20-25 minutes to repair their car. Frustrated at the car's
continued breakdown, the group decided to take Merka's truck.
Danny pushed Merka down and pinned him to the ground. While Danny
sat on Merka's chest, Curtis Harris began to beat him in the head
with an automobile jack. Valerie Rencher testified that she begged
him to stop but Harris hit the victim at least six more times.
Merka died of severe injuries to the head and brain. He suffered
fifteen head lacerations that were consistent with having been
inflicted by a bumper jack shaft and ratchet mechanism.
The group's destructive instincts were not yet sated.
Leaving Merka's body in a ditch, they absconded with his pick-up,
2
This account is primarily taken from the opinion set
forth in the Texas Court of Criminal Appeals. Harris v. State,
738 S.W.2d 207, 213-15, 224-25 (en banc).
2
appropriated his shotgun and drove to a U-Totem store in Waller,
which they robbed at gunpoint of the cash in the till and a change
bottle that contained donations for the Multiple Sclerosis Society.
Upon their return to Bryan about midnight, Danny Harris secreted
Merka's truck. The truck was found at 10:00 a.m. on December 12,
1978 on the Old Mumford Road in Bryan approximately four blocks
from the Harris house.
Harris was found guilty based particularly on the
testimony of his girlfriend Valerie Rencher and the testimony of
the U-Totem clerk who saw him during the robbery in which Merka's
shotgun was used. Physical evidence against him included Merka's
Texas A&M identification card, gun case and payment book, which
were found in the woods behind Harris's home. The jury found
Harris guilty of murder and sentenced him to death. The Texas
Court of Criminal Appeals reversed Harris' convictions due to
improper restrictions on cross-examination, Harris v. State, 642
S.W.2d 471 (Tex. Crim. App. 1982), but he was retried and again
sentenced to death. The conviction was affirmed by the Texas Court
of Criminal Appeals, Harris v. State, 738 S.W.2d 207 (Tex. Crim.
App. 1987) and petition for writ of certiorari was denied by the
U.S. Supreme Court. Harris v. Texas, 484 U.S. 872, 108 S. Ct. 207,
98 L. Ed. 2d 158 (1987). Having exhausted state collateral remedies,
Harris next applied for a stay of execution in the United States
District Court for the Southern District of Texas. Eventually, the
district court denied relief and denied Harris's request for a
3
certificate of probable cause to appeal. He now appeals the denial
of the certificate of probable cause to this court.
Harris argues four issues in his effort to obtain CPC.
First, he asserts that the prosecutor utilized peremptory
challenges in a racially discriminatory way. Second, he states
under the Texas death penalty law, the jury was unable to consider
and give effect to mitigating evidence of Harris' role in
committing the offense. Third, he contends that the trial court
violated his due process rights by "testifying" into the record
about events surrounding the separation of jurors. He finally
argues that two prospective jurors were improperly excused for
cause in violation of Witherspoon v. Illinois.
DISCUSSION
This court lacks jurisdiction to hear an appeal in this
case unless a certificate of probable cause is granted. Fed. R.
App. Proc. 22(b). To obtain a certificate of probable cause,
Harris must "make a substantial showing of the denial of a federal
right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383,
3394, 77 L. Ed. 2d 1090 (1983); Jones v. Whitley, 938 F.2d 536, 539
(5th Cir. 1991, cert. denied, ____ U.S. _____, 112 S. Ct. 8, 115
L. Ed. 2d 1093 (1991). To sustain this burden, Harris "must
demonstrate that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to proceed
further". Barefoot, 463 U.S. at 493 n.4, 103 S. Ct. at 3394 n.4.
4
A. Batson Claim.
Harris initially seeks a certificate of probable cause to
review his claim that the prosecutor utilized a peremptory
challenge in a racially discriminatory fashion, violating Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The
prospective juror was Georgia Fay Harris, a black woman. The
record reflects that Harris's counsel did not object at trial to
the exclusion of Ms. Harris. For this reason, we must follow
established circuit precedent and find that Harris failed to assert
a proper Batson claim as a matter of federal law. Batson, 476 U.S.
at 100, 106 S. Ct. at 1725; Wilkerson v. Collins, 950 F.2d 1054,
1063 (5th Cir. 1992); United States v. Erwin, 793 F.2d 656, 667
(5th Cir. 1986). As we held in Wilkerson, 950 F.2d at 1063, the
fact that the state habeas court later considered on the merits the
prosecutor's alleged racial use of preemptory challenges does not
cure the defect, fatal to federal review, of failure to object
timely to the peremptory strike. See also Jones v. Butler, 864
F.2d 348, 369 (5th Cir. 1988) (on pet. for reh.).
Harris asserts that Powers v. Ohio, ____ U.S. ____, 111
S. Ct. 1364, 113 L. Ed. 2d 411 (1991) announced a new rationale for
Batson which would dispense with the contemporaneous objection rule
in order to preserve jurors' equal protection rights. This is not
correct. Powers applied Batson to peremptory challenges of jurors
of a different race from the defendant. Nothing in Powers changes
the procedure appropriate for asserting a Batson claim. Further,
Powers itself strongly suggests that a contemporaneous objection
5
must be made. Powers, ____ U.S. at ____, 111 S. Ct. at 1371-72
(the trial court has a duty to make a prompt inquiry during voir
dire concerning improper exclusion of jurors when the issue is
raised). This circuit has continued to apply the rule of
contemporaneous objection even after Powers. Wilkerson, 950 F.2d
1062-63. We may not consider this argument further.3
B. Possible Mitigating Evidence.
Harris asserts that according to the law of parties
instruction given to the jury during the guilt phase of the trial
the jury was never required to decide whether the petitioner
physically caused the death of Merka in order to find him guilty of
capital murder. Harris also asserts that the penalty phase
inquiries posed by Texas law to the jury failed to allow them to
give mitigating effect to his allegedly less culpable role in the
offense.4 Taken together, these conditions are said to render
3
Harris tries to circumvent our federal contemporaneous-
objection rule by asserting that race was so plainly a ground for
the prosecutor's exclusion of Ms. Harris that no objection was
needed to preserve the error. We disagree. The purpose of the
prosecutor's question, as he explained to the state habeas court,
was to ascertain whether Ms. Harris might feel an affinity, or
"kinship", for Curtis Harris, because they were from the same
town, of the same race and had the same last name. He pointed
out that he would not have needed to make this inquiry if Ms.
Harris had been white. The state habeas court accepted this
reason, as well as several others articulated by the prosecutor,
and found that the peremptory strike was not exercised
discriminatorily. Harris has mischaracterized the state court's
finding as permitting a "race-plus" peremptory strike after
Batson. Even if there were no federal contemporaneous objection
component to a Batson claim, we would be bound by the state
court's finding. 28 U.S.C. § 2254(d).
4
Under the law in effect when Harris committed his
crime, the jury must answer "yes" to two questions before the
defendant may be sentenced to death:
6
Texas law unconstitutional under Penry v. Lynaugh, 492 U.S. 302,
109 S. Ct. 2934 (1989).
The most serious weakness of this argument is its lack of
evidentiary support. It was uncontroverted that Harris struck the
deceased with an automobile jack. There was no direct evidence
that any other person struck Merka with a jack or any instrument.
The evidence was likewise uncontroverted that every blow delivered
to the defendant's head could have been fatal, and Merka's hair and
blood were found on the jack. Although a hammer found under
Merka's body could have been used as the murder weapon, blood was
found only on its handle, a spot inconsistent with aggressive use.
Substantively, Harris's argument has been undercut by the
recent Supreme Court decision in Graham v. Collins, ____ U.S. ____,
113 S. Ct. 892, ____ L.Ed.2d ____ (1993). Graham reviewed this
court's en banc decision holding that the Texas death sentencing
statutory provisions sufficiently allow a jury to consider the
mitigating effect of a defendant's youth at the time he committed
a capital offense. Graham v. Collins, 950 F.2d 1009, 1027 (5th
Cir. 1992). Graham was decided under the principle of Teague v.
Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) and couched as a
(1) Whether the conduct of the
defendant that caused the death of the
deceased was committed deliberately and with
the reasonable expectation that the death of
the deceased or another would result;
(2) Whether there is a probability that
the defendant would commit criminal acts of
violence that would constitute a continuing
threat to society. Tex. Crim. Proc. Code
Ann. Art. 37.071(b) (Vernon 1981).
7
decision whether an extension of Penry to youth is a "new rule" not
cognizable on habeas, yet it makes clear that Penry is limited in
scope. The Supreme Court noted that Penry addressed an atypical
factual scenario, evidence that was a double-edged sword. The
primary relevance of Penry's substantial evidence of retardation
lay in its aggravating effect and its tendency to prove Penry's
future dangerousness, while its mitigating effect on the future
dangerousness issue was too tenuous to overcome the aggravating
impact. ____ U.S. at _____, 113 S. Ct. at 900-901. Thus, while
Penry's jury had no reliable means of giving mitigating effect to
his retardation as presented, Graham's evidence of youth, transient
childhood, and good character "was not beyond the jury's effective
reach". ____ U.S. at _____, 113 S. Ct. at 902.
In this case, the only other person who could have struck
a fatal blow to Merka was Danny Harris as he bestrode Merka's
chest. But the possibility that Harris did not fatally wound
Merka, as in Graham, was not beyond the effective reach of the jury
in regard to either of the special issues. This court has
succinctly answered Harris's Penry/Graham argument in a pre-Graham
case, in which the defendant alleged that the jury could not give
mitigating effect to the possibility that an accomplice might have
killed the victim. In Bridge v. Collins, 963 F.2d 767, 770 (5th
Cir. 1992), it was pointed out:
If the jury members believed that Bridge's
accomplice killed the victim, then they could
have answered "no" to the first question.
. . .
8
If the jury members believed that Bridge did
not shoot the victim, then they could have
concluded that Bridge would not be a future
threat.
Id. See also, Drew v. Collins, 964 F.2d 411, 421 (5th Cir. 1992).
Harris attempts to distinguish Bridge on the basis that
Harris could have been convicted under the law of parties even
though the jury believed he had not killed Merka. Then, according
to the argument, the jury could have answered both special
punishment issues without considering that Harris did not actually
kill Merka. This argument derives from a recent district court
opinion. Nichols v. Collins, 802 F. Supp. 66 (S.D. Tex. 1992). For
several reasons, it is unpersuasive. First, Harris's argument
ignores the law of this circuit that a jury need only be provided
one fair vehicle for considering mitigating evidence. White v.
Collins, 959 F.2d 1319, 1322-23 (5th Cir. 1992), cert. denied, ____
U.S. ____, 112 S. Ct. 1714, 118 L. Ed. 2d 419 (1992)); Boyde v.
California, 494 U.S. 370, 382 n.5, 110 S. Ct. 190, 199 n.5, 108
L. Ed. 2d 316 (1990). Second, the state points out that in Drew and
in Bridge the jury was instructed to convict under the law of
parties. Drew, 964 F.2d at 421; Drew v. State, 743 S.W.2d 207, 214
n.3 (Tex. Crim. App. 1987) (describing the facts of Drew). These
cases are not factually distinguishable. Third, Harris's reliance
on Nichols5 is unavailing. Besides having had its opinion in
regard to sentencing vacated pending appeal, the court in Nichols
simply did not discuss the controlling law of the circuit in
5
Nichols has been stayed in part pending appeal to the
Fifth Circuit, Nichols v. Collins, No. 92-2720 (Dec. 30, 1992).
9
Bridge. Nichols, 802 F. Supp. at 71-72. Fourth, the Supreme
Court's decision in Graham appears to vitiate any legitimate
disagreement among jurors otherwise attributable to Nichols.
C. The Judge's Statements.
During his trial, Harris moved for mistrial under state
law based on the allegations of an improper separation of the jury.
In denying the petitioner's motion, the trial judge described on
the record the events surrounding his supervision of the jury while
they transported their cars from the county parking lot to parking
spaces underneath the courthouse before commencing deliberations.
The separation occurred after the jury had been given the charge at
the end of the guilt\innocence phase of the trial. After providing
his recollection of the event, the trial judge testified that he
was "positive that none of the jurors had access to any information
or contact with any other person during this process." Harris
contends that under Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970),
this action offended his due process rights.6 Tyler, however,
stands only for the proposition that when the testimony of the
trial judge addresses material and disputed facts, a due process
violation may occur. Tyler, 427 F.2d at 417.
In this case, the trial judge merely offered his
recollections of matters within the judge's observations of the
trial. Harris offered no evidence contrary to the trial judge's
statements. Compare Harris v. State, 738 S.W.2d at 223 (noting
6
Brown v. Lynaugh, 843 F.2d 849 (5th Cir. 1989), cited
by Harris, is inapposite to this case as in Brown, the judge
testified on a matter of guilt. Id. at 849.
10
"[none of the judge's] statements were refuted"), with Tyler, 427
F.2d at 417 (noting the testimony of the judge "must be challenged
by the petitioner"). Thus, under Tyler, Harris fails to
demonstrate a material conflict regarding disputed facts.
D. The Exclusion of Jurors Easley and Koy for Cause.
Finally, Harris contends that the prosecutor improperly
challenged for cause two prospective jurors, Easley and Koy, in a
manner that evaded and violated the Supreme Court's decision in
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d
776 (1968). Harris admits that the state may challenge jurors for
cause on the basis of state law even if their answers regarding
capital punishment did not entitle the state to a strike under
Witherspoon. Brooks v. Estelle, 697 F.2d 586, 589-90 (5th Cir.
1982). Harris contends, however, that in questioning the potential
venirepersons the prosecutor acted differently toward another
member who voiced no personal concern about the death penalty but
gave the same answers to the questions regarding minimum punishment
under state law as Easley and Koy. Harris alleges that the
prosecution's use of a state law principle to challenge for cause
a juror perceived to be "soft" on the death penalty is a subterfuge
designed to circumvent Witherspoon.7
7
Harris's citation to Swain v. Alabama, 380 U.S. 202, 85
S. Ct. 824, 13 L. Ed. 759 (1965), in an effort to show that the
prosecutor used his questioning for an improper purpose, is
inapposite. Witherspoon-excludables are not a cognizable group
for constitutional purposes, Lockhart v. McCree, 476 U.S. 162,
174, 106 S. Ct. 1758, 1765, 90 L. Ed. 2d 137 (1986).
11
Whether this argument has merit is not for us to say in
the first instance on a federal writ of habeas corpus. Under the
Teague rule, supra, it would manifestly be a "new rule" of
constitutional criminal procedure to require courts to examine a
prosecutor's conduct in voir dire to determine whether the
prosecutor pretextually used answers to questions not related to
Witherspoon qualification to disqualify jurors who had not run
afoul of Witherspoon when directly questioned about their views of
the death penalty. Further, this "new rule" does not fall under
either of the exceptions to Teague, for if accepted, it neither
makes conduct beyond the reach of criminal law nor is it implicit
in our concept of ordered liberty. We decline to reach the merits
of this argument.
CONCLUSION
Because Harris has raised no issues on which reasonable
jurists could disagree, we are compelled to DENY Harris' motion for
CPC.
Motion for CPC DENIED.
12