Johnie Michael Cox v. Larry Norris ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1280
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Johnie Cox, *
*
Appellant, *
* On an Application for a Certificate
v. * of Appealability from an Order of
the
* United States District Court for the
Larry Norris, * Eastern
District of Arkansas.
*
Appellee. *
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Submitted: September 17, 1997
Filed: December 29, 1997
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Before McMILLIAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.
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BEAM, Circuit Judge.
Arkansas death-row inmate Johnie Cox seeks a certificate of
appealability of his 28 U.S.C. § 2254 habeas corpus action. Cox has been
sentenced to death for the 1989 murders of Marie Sullens, Margaret Brown,
and William Brown. We deny the application.
I. BACKGROUND
On November 1, 1989, Cox went to Marie Sullens's apartment to kill
her. He had chosen that date, All Saints Day, because he thought she would
go to heaven if she
died on that day. Sullens was married to Cox's grandfather. He later told
police that he had killed Sullens because he suspected that she was trying
to kill his grandfather.
When he arrived at her apartment, he found that Margaret and William
Brown were there, too. Shortly after he arrived, Cox threatened William
Brown with a .22 pistol and ordered him to bind Sullens and Margaret Brown
with duct tape. Cox then tied up William and bound all three together at
the neck. He first tried to sedate the three victims with sleeping
medication. Because the drug took too long to take effect, he stabbed the
victims and also attempted to shoot Margaret Brown. Later, unhappy with
the delayed effect of the stabbing, Cox attempted to strangle the three
victims and then set fire to the house. All three individuals died as a
result of stab wounds and injuries from the fire. Margaret Brown died
before the fire as a result of fourteen stab wounds and strangulation.
William Brown had wires around his neck and two stab wounds, but died in
the fire. Sullens had six stab wounds, some penetrating her lungs, but
also died in the fire.
Cox was arrested and confessed in detail, in writing and on
videotape, to the murders. He was tried and sentenced to death in a
bifurcated proceeding. After trial, he filed a motion for a new trial,
alleging that his trial counsel was ineffective. After a hearing, the
trial court denied the motion. He appealed both his conviction and the
denial of his motion for a new trial to the Arkansas Supreme Court. He
raised essentially the same issues in state court that he raises here. The
Arkansas Supreme Court denied relief. Cox v. State, 853 S.W.2d 266
(Ark.1993).
He then filed a petition for habeas corpus relief in federal district
court. After two hearings,1 the district court denied the petition. Cox
v. Norris, No. PB-C-93-625,
1
The Honorable George Howard, Jr., held a hearing on June 10, 1994, at which
Cox's counsel and others testified. The case was later transferred to the Honorable
William R. Wilson, Jr. Because issues of credibility were involved, Judge Wilson held
a second hearing involving the same witnesses on November 18, 1996.
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Transcript of Motions Hearing (E.D. Ark. October 22, 1996); Transcript of
Evidentiary Hearing at (E.D. Ark. Nov. 18, 1996); Order (E.D. Ark. Nov. 22,
1996).
II. DISCUSSION
This matter is before us on an application for a certificate of
appealability pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") which became effective on April 24, 1996.2 Cox first
applied to the district court for the certificate. The district court
denied Cox's application under the assumption that it lacked authority to
consider such motions. Cox v. Norris, No. PB-C-93-625, Order (E.D. Ark.
January 23, 1997). However, district courts, as well as appeals courts,
have the authority to issue certificates of appealability under the AEDPA.
See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). Having reviewed
the entire record, we see no reason to go through the unnecessary step of
remanding to the district court and we will treat Cox's notice of appeal
as an application for a certificate of appealability addressed to the
judges of this Court. See id. at 522.
To grant a certificate of appealability, we must find a substantial
showing of the denial of a federal constitutional right. See id. A
substantial showing is a showing that issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. See Flieger v. Delo, 16 F.3d 878, 882-83 (8th
Cir. 1994). With those standards in mind, we find that Cox's application
for a certificate of appealability should be denied.
2
The AEDPA made no substantive changes in the standards by which
applications for certificates of appealability (formerly known as "certificates of
probable cause to appeal") are governed. See Tiedeman v. Benson, 122 F.3d 518, 521
(8th Cir. 1997). Thus, the Act is applicable to this action, even though Cox's habeas
corpus petition was filed before the enactment of the AEDPA. See id.
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A. Continuance
Cox's first claims that he was denied his right to due process and
his Sixth Amendment right to a fair jury as a result of the trial court's
refusal to grant his request for a continuance because of excessive
publicity about the death penalty. The first person to be executed in
Arkansas since 1964 had been put to death a week before Cox's trial.
Another death row inmate was executed on the evening of the first day of
Cox's trial. Both executions received considerable coverage in the media.
Cox contends that the publicity about the death penalty in connection with
the executions made it impossible for the court to assemble a fair and
impartial jury. Although the trial court denied the motion to continue,
one hundred extra people were included in the jury pool to ensure that
there would be enough potential jurors who were not tainted by the
publicity.
Both the Arkansas Supreme Court and the federal district court found
that there was considerable publicity concerning the death penalty at the
time of the executions. The determinative inquiry, however, is not the
amount of publicity, but the effect of the publicity on prospective
jurors. See Orsini v. Wallace, 913 F.2d 474, 482 (8th Cir. 1990). The
jurors need not be totally ignorant of the facts and issues involved; it
is sufficient if a juror can lay aside his or her impression or opinion and
render a verdict based on the evidence presented in court. See Perry v.
Lockhart, 871 F.2d 1384, 1390 (8th Cir. 1989).
As a federal court conducting habeas corpus review, we must defer to
the state trial court's determination that the jury was not prejudiced by
pretrial publicity. See Swindler v. Lockhart, 885 F.2d 1342, 1347 (8th
Cir. 1989). This determination is essentially a factual conclusion
entitled to a presumption of correctness unless the state court hearing was
procedurally defective or unless the federal court, on considering the
record as a whole concludes that the factual determination is not fairly
supported. See
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Perry, 871 F.2d at 1390. Thus, the determination can only be overturned
for "manifest error." Swindler, 885 F.2d at 1347; see also Hill v.
Lockhart, 28 F.3d 832, 848 (8th Cir. 1994) (noting little practical
difference between "manifest error" and "fairly supported by the record"
standards).
Our review of the record shows that the state court's determination
is fairly supported and thus we can find no manifest error.3 Both the trial
court and counsel carefully questioned potential jurors about the publicity
at individual, sequestered voir dire. Extra jurors had been assembled, as
indicated. We have reviewed the record and find that the voir dire assured
that the jurors were not affected by the publicity. In addition, we find
that the publicity surrounding the executions could cut both ways; that is,
a potential juror could be equally swayed against the death penalty as for
the death penalty by the publicity.
B. Constitutionality of Statute
Cox's next contention is that the Arkansas capital murder statute is
unconstitutional. He first argues that it impermissibly fails to narrow
the class of persons who are death eligible. We rejected this argument
with regard to the Arkansas capital murder statute in Perry v. Lockhart,
871 F.2d at 1392-93. In Perry, we applied the standards enunciated in
Lowenfield v. Phelps, 484 U.S. 231 (1988), to the Arkansas statute. Perry,
871 F.3d at 1392-93. A capital punishment scheme must genuinely narrow the
class of persons eligible for the death penalty and must justify the
imposition of a more severe sentence on the defendant compared to others
found guilty
3
In the related context of a habeas petitioner alleging improper denial of a motion
to change venue, "it is the 'duty of the Appeals Court to independently evaluate the voir
dire testimony of the empaneled jurors.'" See Hill, 28 F.3d at 847 (quoting Irvin v.
Dowd, 366 U.S. 717, 723 (1961)). The district court conducted such a review, as has
this Court.
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of murder. See id. 871 F.2d at 1392. This requirement may be satisfied
in two ways--either a state legislature may explicitly restrict the
definition of capital murder, or a jury may perform the narrowing function
during the penalty phase by ascertaining whether any aggravating
circumstances exist. See id.
The Arkansas scheme satisfies these requirements. Cox was convicted
under a broad definition of a capital offense--"[w]ith the premeditated and
deliberated purpose of causing the death of another person, he causes the
death of any person"--that differs from the first-degree murder offense in
that it requires premeditated and deliberated purpose as opposed to "a
purpose of causing the death" or "knowingly caus[ing] the death of a person
under the age of fourteen. Compare Ark. Code Ann. § 5-10-101(a)(4)
(capital murder) with Ark. Code Ann. § 5-10-102(a)(2)and (3) (first degree
murder). Moreover, the class is narrowed by the application of aggravating
circumstances by the jury. Ark. Code Ann. § 5-4-604(1)-(9); Perry, 871
F.2d at 1393. Arkansas also requires that the jury find that the
aggravating circumstance or circumstances outweigh any mitigating factors
and justify a sentence of death beyond a reasonable doubt. See Ark. Code
Ann. § 5-4-603(1)-(3); Perry, 871 F.2d at 1393. Accordingly, we find that
the Arkansas statute satisfies constitutional requirements.
Cox also asserts that the Arkansas capital murder statute violates the
Eighth Amendment because it does not give the jury the option of mercy.
The statute contains the mandatory language that the jury "shall impose a
sentence of death" if it finds beyond a reasonable doubt that aggravating
factors exist and outweigh all mitigating circumstances found to exist.
Ark. Code Ann. § 5-4-603(a). Death penalty statutes having some
"mandatory" aspects have been upheld as constitutional. See, e.g., Jurek
v. Texas, 428 U.S. 262 (1976) (finding constitutional death penalty
statutes that contained mandatory language but that allowed the jury to
consider mitigating factors); Blystone v. Pennsylvania, 494 U.S. 299 (1990)
(same); and Boyde v. California, 494
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U.S. 370 (1990) (same). We approved of the "shall impose" language in the
Arkansas statute in Singleton v. Lockhart, 962 F.2d 1315, 1323 (8th Cir.
1992).
Here, the jury was given room for mercy. It was instructed that it
could return a sentence of death only if it unanimously found three things:
1) that one or more aggravating factors existed; 2) that such aggravating
circumstances outweighed, beyond a reasonable doubt, any mitigating
circumstances found to exist; and 3) that the aggravating circumstance
justified beyond a reasonable doubt, the sentence of death. Defense
counsel's closing argument emphasized the fact that the jury had the option
of a sentence of life without parole. In addition, at the hearing in
district court, counsel conceded that the jury had actually been instructed
with use of the word "may." Under the circumstances, we find no
constitutional error.
Next, Cox claims that the jury used an improper aggravator to sentence
him to death. One of the statutory aggravators used was that "the person
in the commission of the capital murder knowingly created a great risk of
death to a person other than the victim." Ark. Code Ann. § 5-4-604 (4).
Cox argues that use of each homicide as an aggravating circumstance of the
other fails to satisfy the narrowing function and constitutes "double
counting." As noted above, the Arkansas scheme sufficiently narrows the
death eligible class. We approved use of this aggravator in Perry, 871
F.2d at 1392. Cox's double counting argument is also foreclosed by Perry,
871 F.2d at 1393. Duplication of an element of a capital offense by one
or more aggravating circumstances does not render the Arkansas death
penalty scheme unconstitutional. See Wainwright v. Lockhart, 80 F.3d 1226,
1232 (8th Cir.), cert. denied, 117 S. Ct. 395 (1996).
C. Jury Issues
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Cox also asserts that his Sixth Amendment right to an impartial jury
was violated in the trial court's actions in empaneling the jury regarding
three incidents. First, the court excused Bertha Thacker for cause, over
a defense objection, when it was shown that the State's attorney had
prosecuted her son and that the sheriff's department was investigating her
husband. The trial court admitted extrinsic evidence when it allowed the
sheriff, who was already present in the courthouse, to testify about the
investigation of her husband. Cox contends Thacker would have been
favorable to the defense. Next, the trial court refused to excuse Tena
Hodges for cause on a defense motion. Cox's attorney had represented
Hodges's former husband in her divorce nine years earlier. Hodges stated
at voir dire that she had no hard feelings and could be impartial. In
response to the question, "Would you say your philosophy in regard to the
death penalty makes you favor the death penalty a little bit?," Hodges
answered, "Maybe." When the trial court denied Cox's motion to excuse
Hodges for cause, Cox was compelled to use a peremptory challenge on
Hodges. Finally, the trial court refused to excuse Grover Davis for cause
or to allow extrinsic evidence showing his partiality. Because Cox had
used up his twelve peremptory challenges, Davis sat on the jury. Cox
contends that juror Davis was hostile to Cox and to the defense attorney.
First, we reject Cox's claim with respect to Thacker. There was ample
reason to have excused her for cause. It was clear that she was acquainted
with, and had reason to have animosity toward, the prosecution. Although
the taking of extrinsic evidence on the matter of the sheriff's
investigation may have been unorthodox, we cannot say it was prejudicial
error. The sheriff was nearby in the courthouse and was merely asked
whether he was investigating Thacker's husband.
Next, Cox's claim with respect to juror Hodges is without merit. Any
Sixth Amendment claim must focus exclusively on jurors who actually sat.
See Sloan v. Delo, 54 F.3d 1371, 1387 n.16 (8th Cir. 1995), cert. denied,
116 S. Ct. 728 (1996). Peremptory challenges are not of constitutional
dimension--loss of a peremptory
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challenge does not constitute a violation of the constitutional right to
a fair jury. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988). As long as the
jury that sits is impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean the Sixth
Amendment was violated. See id.
The inquiry thus narrows to juror Davis. The Arkansas Supreme Court
found no abuse of discretion in the trial court's handling of juror Davis.
See Cox, 853 S.W.2d at 271. The trial court stated, "[t]he Court sensed
that during the voir dire of that prospective juror that the defense
counsel was somewhat antagonistic toward the juror, but the juror continued
to state under oath that he could try this case based upon the law and
evidence, and that he had no hard feelings toward the defendant nor his
attorney, and the defense has not established actual bias." Trial
Transcript at 1124-25. The district court held two hearings to resolve
credibility issues involving the alleged hostility of juror Davis. The
district court conceded that it might have excused Davis had it been trying
the case but found "on the record as a whole, giving due deference to the
trial court and the state court, as a matter of fact, there was no habeas-
type error here." Evidentiary Hearing at 81 (E.D. Ark. Nov. 18, 1996).
We agree with the district court. We have reviewed the record and
find that the trial court properly declined to excuse Davis for cause.
Although Davis stated that he favored the death penalty for kidnapping and
stated that it has a deterrent effect, he also stated that he could be
even-handed and did not philosophically lean to the death penalty. It
appears that Cox's counsel may have tried to provoke Davis into a
confrontation in an effort to have him excused for cause since he lacked
peremptory challenges. At any rate, Davis stated that he had "nothing
against [Cox's counsel] whatsoever." Trial Transcript at 1035. Cox
alleges that juror Davis winked at the prosecution at one point. There is
no allegation that the "wink" was observed by the other jurors. We defer
to the trial court's superior ability to assess the demeanor of
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Davis and the attorneys. Moreover, we are convinced that any animosity
that might have existed was harmless.
Because the Arkansas Supreme Court found no error, it did not conduct
a harmless error review. When a state court has not conducted a harmless
error review, we must use the strict standard found in Chapman v.
California, 386 U.S. 18 (1967), in conducting harmless error review. See
Joubert v. Hopkins, 75 F.3d 1232, 1245 (8th Cir.), cert. denied, 116 S. Ct.
2574 (1996). Under Chapman, we must determine whether any error is
harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24.
We have reviewed the record and find, in light of the overwhelming
evidence of Cox's guilt, including his dispassionate confession, that any
error involving juror Davis was harmless beyond a reasonable doubt. Cox
confessed in detail to the murders. Law enforcement officers first took
a verbal statement and later videotaped Cox's confession. The jurors heard
and viewed this evidence. In the confessions, Cox recounts his efforts to
kill his three victims and describes several trips to the kitchen to eat
chips and drink Coke while his victims suffered. He describes his efforts
to kill Margaret Brown:
I yanked [her coat] up because she started making noises and
stuff like that, and so I muffled it the best I could until I
could get in a position. I tried stabbing her and couldn't kill
her, so I just [ ] shot her and couldn't kill her, so I just
took an electrical cord and wrapped it around her neck and held
it with one of my feet and took my hands and pulled it up until
I choked her to death, but she was even breathing after that.
Trial Transcript at 1224. He tells of setting the fire with "greenish
looking foam and some plastic to make the smoke toxic so it would take the
air out, take the oxygen out." Id. at 1225. There are no contentions, and
indeed no evidence to suggest, that the
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confession was anything but voluntary. There was also substantial evidence
in the penalty phase of the trial to support a sentence of death. In light
of this evidence, we find any error that might have occurred is harmless
beyond a reasonable doubt.
D. Ineffectiveness of Counsel
Finally, Cox contends his counsel was ineffective in three
particulars: 1) not requesting a change of venue because of pretrial
publicity; 2) not investigating the possibility that others were guilty of
the crimes; and 3) provoking and alienating juror Davis. A petitioner's
claim that counsel's assistance was so defective as to require reversal of
a conviction or death sentence has two components. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that
counsel's performance was deficient. See id. Second, the petitioner must
show that the deficient performance prejudiced the defense. See id. With
respect to attorney performance, we must determine whether, in light of all
the circumstances, the lawyer's performance was outside the range of
professionally competent assistance. See id. at 690. Reasonable
performance includes an adequate investigation of the facts, consideration
of viable theories, and development of evidence to support those theories.
See Hill, 28 F.3d at 837.
In order to show prejudice, the petitioner must show that, but for
counsel's deficient performance, there is a reasonable probability that the
result of the proceeding would have been different. See Strickland, 466
U.S. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
None of Cox's contentions of ineffective assistance regarding pretrial
publicity meets these standards. Cox's counsel testified at the hearing
in district court that he did not want to change venue because he believed
other counties were prone to harsher sentences. That tactical decision is
not outside the range of professional competence.
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Again, in light of overwhelming evidence, Cox cannot show prejudice from
that action.
The allegation concerning failure to investigate other perpetrators
involves Cox's sister and her boyfriend, Sue Cox and Milo Healey. Sue Cox
and Milo Healey had been suspects in the murder and had been questioned by
police. Before the trial, Milo Healey had appeared at Cox's attorney's
office and implicated himself in the murder. Cox's attorney immediately
reported this to the police and to the prosecution, who discounted it as
contrary to Healey's earlier sworn statement. There was no direct or
circumstantial evidence linking either Healey or Sue Cox to the murders.
The record shows that Cox's attorney actively pursued the theory that
Milo and Sue were involved in the murders. At trial, defense counsel
questioned numerous witnesses about hostility and confrontations between
Milo and Sue and the victims. Margaret Brown's father testified, in fact,
that Sue Cox had broken Marie Sullens's arm and tried to strangle her with
a coat hanger two weeks before the murders. Three hours before the
murders, Milo and Sue had threatened to burn Sullens's house down. Cox's
attorney testified in district court that he made a tactical decision at
trial to imply that Milo Healey and Sue Cox were involved in the murders,
but not to call them to testify because he feared their stories would fall
apart on cross-examination. That tactical decision is not outside the
range of professional competence. The jury heard evidence and argument on
the theory and chose to reject it. Further, Cox can show no prejudice
because even if the others were implicated, Cox would not have been
exonerated--he had confessed to the murders.
We are bound by the trial court's factual finding that if cox's
attorney had attempted to provoke juror Davis, it had not affected Davis's
ability to be fair and impartial. Assuming, however, that such provocation
was outside the realm of professional competence, we find no prejudice.
As noted above, the evidence against Cox was overwhelming.
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III. CONCLUSION
Our review of the record convinces us that Cox received a fair trial.
We find that the issues raised in his Cox's motion for a certificate of
appealability are not debatable among reasonable jurists, no court could
resolve the issues differently and the issues deserve no further
proceedings. Accordingly, the motion for a certificate of appealability
is denied.
McMILLIAN, Circuit Judge, concurring.
I concur specially; however, I reject the notion that district courts
have the power to grant certificates of appealability.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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