Fisher v. Lee

Decision Date05 April 2000
Docket NumberCA-98-791-1,No. 99-25,99-25
Citation215 F.3d 438
Parties(4th Cir. 2000) WILLIE ERVIN FISHER, Petitioner-Appellant, v. R. C. LEE, Warden, Central Prison; NORTH CAROLINA ATTORNEY GENERAL, Respondents-Appellees. (). . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Larry I. Moore, III, ADAMS, KLEEMEIER, HAGAN, HANNAH & FOUTS, Greensboro, North Carolina, for Appellant. Valerie Blanche Spalding, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Cynthia F. Adcock, ASSOCIATION OF AMERICAN LAW SCHOOLS, Washington, D.C., for Appellant. Michael F. Easley, Attorney General of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before WIDENER and TRAXLER, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Widener and Judge Goodwin joined.

OPINION

TRAXLER, Circuit Judge:

Willie Ervin Fisher appeals the district court's dismissal of his petition for writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000), in which he challenges his conviction in North Carolina state court for the capital murder of Angela Johnson. Because Fisher has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C.A. § 2253 (c)(2) (West Supp. 2000), we deny his application for a certificate of appealability and dismiss his petition for writ of habeas corpus.

I.

During the early morning hours of April 2, 1992, Willie Ervin Fisher broke into the home where his girlfriend, Angela Johnson, was living, broke her cheek and jaw, and stabbed her approximately thirty-two times. Although transported to the hospital for emergency treatment, Angela died from the wounds within a matter of hours. At the time of the attack, Angela was living in the home of her grandmother, Josephine Johnson, along with her mother, Shirley Johnson, her thirteen-year-old daughter, Shemika, and her four-year-old son by Fisher, Willie Ervin, Junior. The North Carolina Supreme Court summarized the events surrounding the murder as follows:

On [April 1], [Fisher] came to the Johnson residence at about 9:00 p.m. Angela was not at home. He stayed for about three hours, holding Willie Jr. and watching television. Shirley Johnson worked at night and left to go to work at approximately 10:00 p.m. When Angela returned to the house after her mother had gone to work, she and[Fisher] began arguing. Angela ran into her grandmother's room and said that [Fisher] had hit her in the eye.[Fisher] pushed Angela onto the bed on top of her grandmother and then hit her grandmother while trying to hit Angela. Angela's grandmother called the police.

Soon thereafter, a taxi which had been called earlier by either the victim or [Fisher] arrived at the residence. Angela ran out of the house, while trying to put on her shoes, wearing a T-shirt and jogging pants. [Fisher] tried to catch her but she got into the taxi and it "pulled off." Angela was crying and her hair was tousled. She had bruises all over her body and her shirt had been torn. Angela went to the Winston-Salem Journal/Sentinel where her mother was working.

Officer T.C. Smoot of the Winston-Salem Police Department received a call at 12:35 a.m. to go to the residence. When he arrived, he began talking to Josephine Johnson about an alleged assault. Angela and her mother arrived later. Officer Smoot noticed that Angela's shirt was torn and her eyes were swollen.

Angela and her mother went to the clerk's office where Angela obtained a warrant charging [Fisher] with assault. A criminal summons was issued for assault on a female and the police began searching for [Fisher]. Angela and her mother went home but did not go to bed until after 3:00 a.m. There were two twin beds in the bedroom. Angela and Willie Jr. were in one bed and Angela's mother and Shemika were in the other. Angela's grandmother was in a separate room. After they went to sleep, the telephone rang and Angela answered it. She gave the telephone to her mother who recognized the caller as [Fisher]. Angela's mother asked [Fisher] what had happened at the house. He told her that he had not hit Angela or her grandmother.

About ten minutes after the telephone conversation ended, Shirley Johnson heard someone kicking the front door. She jumped up and saw [Fisher] stepping over broken glass from the door and coming into the house. He was wearing a Redskins jacket and had a knife in his hand. He came in the bedroom and told Angela to get up. Angela got up and started running towards, and then out the back door with[Fisher] following her. Angela ran to the front of the house and through the front door with [Fisher] still behind her. [Fisher] cornered Angela in the living room and began stabbing her in the chest and stomach. Shemika tried to pull him off Angela and she was stabbed on the arm and in the back. Angela's mother began fighting with [Fisher] and he struck her. [Fisher] dragged Angela out the front door, down the steps, and into the driveway--pulling off her nightgown. He continued to stab, beat, and kick Angela after he dragged her into the street. A next door neighbor, Lucius Simmons, heard the commotion and came to the door. He yelled to [Fisher] to stop. Simmons yelled again, [Fisher] stopped beating Angela and told Simmons to shut up. Simmons shot his gun into the air and [Fisher] ran down the street.

The police arrived at the residence and found Angela lying in Simmons' driveway covered with blood. She had a pulse and appeared to be alive. . . . [Shemika] had a three-inch cut on her arm and had been stabbed in the back. The wound in her back was about an inch wide and an inch long. It was gaping open and bleeding. Angela and Shemika were taken by paramedics to the emergency room. Shemika's wounds were cleaned and her lacerations repaired. Angela was unresponsive to emergency medical treatment and was pronounced dead at 7:30 a.m.

State v. Fisher, 445 S.E.2d 866, 869 (N.C. 1994).

After hiding out in nearby woods until the afternoon, Fisher called the Winston-Salem Police Department and told them where he could be found. He was arrested and taken to the hospital, where he was treated for wounds to his hand as well as other injuries. While at the hospital, Fisher made a voluntary statement to officers concerning the events and, four days later, was questioned by police officers at the police station after he waived his Miranda rights. See id. at 870.

Fisher did not dispute, in his statements or during the ensuing capital trial, that he broke into Angela's home and stabbed her to death. Rather, Fisher pursued a "voluntary intoxication" defense, asserting that by reason of his alcohol consumption and crack cocaine use prior to the murder, he was incapable of forming the specific intent necessary to be convicted of first-degree murder in the state of North Carolina. In support, Fisher testified concerning his alcohol consumption and crack cocaine use during the afternoon before and morning of the murder, and presented the testimony of Cliff Foster, a friend who was with Fisher and who could confirm Fisher's use of crack cocaine and alcohol during the four or five hours just prior to Fisher's return to Angela's home with the knife. By his testimony, Fisher claimed to have "blacked-out" between the time that Angela attempted to take the knife away from him and the time that Simmons fired his gun into the air. And, Dr. J. Gary Hoover, a clinical psychologist retained to assist the defense, testified that Fisher was likely functioning inside an alcohol and crack cocaine black-out and was unable to carry out a concerted, intellectually-based plan at the time of the murder. The jury rejected Fisher's voluntary intoxication defense, however, and convicted Fisher of first-degree murder on the basis of malice, premeditation and deliberation and under the felony murder rule. Fisher was also convicted of first-degree burglary of Angela's grandmother's residence, and of assault with a deadly weapon inflicting serious injury for the stabbing of Angela's daughter.

A capital sentencing proceeding was then held. See N.C. Gen. Stat. § 15A-2000 (1999). The State offered no additional evidence during the sentencing phase of trial, relying instead upon evidence that had been previously presented. Fisher's counsel also relied upon evidence introduced during the guilt phase of trial, but presented the additional testimony of Lieutenant Murphy with the Forsyth County Sheriff's Department, who testified that Fisher had not caused any disciplinary problems during his incarceration, and the testimony of several other witnesses to confirm that Fisher's mother had suffered with an alcohol problem and that Fisher enjoyed a good relationship with his son. Additionally, Fisher's counsel introduced a certified criminal record check from the Forsyth County Clerk of Superior Court showing that Fisher had no prior convictions.

At the conclusion of the sentencing phase of the trial, the court submitted two aggravating circumstances for consideration by the jury: (1) that the offense was committed during the commission of a burglary, see N.C. Gen. Stat. § 15A-2000(e)(5); and (2) that the murder was "especially heinous, atrocious, or cruel," N.C. Gen. Stat. § 15A2000(e)(9). The jury found both aggravating circumstances to be present.

With regard to statutory mitigating circumstances, members of the jury found that Fisher "ha[d] no significant history of prior criminal activity," N.C. Gen. Stat. § 15A-2000(f)(1), and that "[t]he...

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