Bell v. Watkins

• Decision Date: 06 December 1982
• Docket Number: No. 81-4358,81-4358
• Citation: 692 F.2d 999
• Parties: Charles Sylvester BELL, Petitioner-Appellant, v. John C. WATKINS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 999

692 F.2d 999

Charles Sylvester BELL, Petitioner-Appellant, v. John C. WATKINS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.

No. 81-4358.

United States Court of Appeals Fifth Circuit.

Dec. 6, 1982.

As Amended on Denial of Rehearing and

Rehearing En Banc Feb. 28, 1983.

Freeland & Gafford, James L. Robertson (court appointed), Oxford, Miss., Cupit & Maxey, John L. Maxey, II, Jackson, Miss., for petitioner-appellant.

William A. Allain, Atty. Gen. of Miss., Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Charles Sylvester Bell was convicted of capital murder in a Mississippi state court in 1977 and sentenced to death. On appeal from the federal district court's denial of habeas corpus relief, 28 U.S.C. Sec. 2254 (1976), the defendant contends:

(1) that the instructions given the jury during the guilt phase of his trial were constitutionally inadequate;

(2) that the exclusion of jurors who expressed conscientious objections to the death penalty violated the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);

(3) that he was denied effective assistance of counsel;

(4) that testimony elicited from his accomplice was unconstitutionally obtained;

(5) that the Mississippi capital sentencing procedure used at the time of his conviction and sentence was unconstitutional;

(6) that the instructions given to the jury during the sentencing phase of his trial were constitutionally inadequate;

(7) that the District Court for the Northern District of Mississippi abused its discretion in transferring the case to the Southern District;

(8) that the district court improperly refused to grant the defendant an enlargement of time or to appoint counsel to represent him.

For the reasons set forth below, we affirm that portion of the district court's judgment rejecting the defendant's challenges to the constitutionality of his conviction, but, as required by our recent decision in Jordan v. Watkins, 681 F.2d 1067 (5th Cir.), clarified sub nom. Jordan v. Thigpen, 688 F.2d 395 (5th Cir.1982), we hold that the state trial court's sentencing instructions were constitutionally inadequate. We therefore reverse the federal district court's judgment to the contrary.

I. PROCEDURAL AND FACTUAL BACKGROUND.

On June 26, 1976, the twenty-one year old night attendant at a service station in Hattiesburg, Mississippi, Danny C. Haden, was robbed at gunpoint and kidnapped by the defendant, Charles Sylvester Bell, and three other individuals: Bobby McFarland, Luther York and Caesar Posey. The robbery was initially McFarland's idea. Upon reaching a secluded area outside of Hattiesburg, McFarland, York and Bell took Haden into the woods while Posey waited in the car. McFarland shot the victim in the back of the neck, decapitating him. There was conflicting testimony at trial as to whether Bell or York fired a shotgun into the victim's back. Both Posey and Bell pleaded with McFarland not to kill Haden before he was taken into the woods and executed.

In March 1977, Bell and Posey were indicted for capital murder. York was indicted in November of that year. McFarland was killed in a burglary a few days after the murder and was never indicted.

On March 11, 1977, Paul Richard Lambert was appointed to represent Bell. On March 16, the state trial court denied the defendant's pretrial motion to suppress a confession and request for a psychiatric examination. On March 21, 1977, the defendant was tried before a jury in a bifurcated proceeding pursuant to standards set forth in Jackson v. State, 337 So.2d 1242 (Miss.1976). The jury found the defendant guilty on March 23 and sentenced him to death.

The Mississippi Supreme Court affirmed Bell's conviction and sentence by a 5-4 vote. Bell v. State, 360 So.2d 1206 (Miss.1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1433, 59 L.Ed.2d 640 (1979). After the United States Supreme Court denied certiorari, the Mississippi Supreme Court denied the defendant leave to file a petition for a writ of error coram nobis or habeas corpus. The defendant filed a habeas corpus petition in the United States District Court for the Northern District of Mississippi. That court, on its own motion, transferred the case to the Southern District of Mississippi.

In the Southern District, the State moved to dismiss on the grounds that the defendant had failed to exhaust state remedies for some of his claims. The district court ordered the defendant to seek postconviction relief in the state courts but retained jurisdiction of the petition. After the Mississippi Supreme Court denied Bell's request for a hearing, the district court considered his claims on the merits, rejecting all of them.

II. INSTRUCTIONS DURING THE GUILT PHASE OF TRIAL.

Bell challenges the trial court's refusal to instruct the jury on the lesser included offenses of manslaughter and simple, or noncapital, murder, as well as the court's failure to define the elements of armed robbery and kidnapping. At trial, Bell's counsel requested a manslaughter instruction ¹ which was refused, but counsel did not request an instruction on simple murder or on the elements of the felonies underlying the capital murder charge. The judge informed the jury that they should find the defendant guilty of capital murder if they found beyond a reasonable doubt that "the defendant was engaged in the criminal act of armed robbery or kidnapping." ² He further explained that "any person aiding, abetting, counseling or procuring the commission of a felony is guilty as a principal." ³

The State, relying on Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), argues that the defendant waived his right to object to these jury instructions, as well as to the instructions given during the sentencing phase of the trial, infra, through his failure to make a contemporaneous objection as required by Mississippi Supreme Court Rule 42. In Engle, the state court had denied the defendant relief because of his failure to follow the requisite procedures. ⁴ In Bell's case, the Mississippi Supreme Court itself raised the issue of the adequacy of the instructions given the jury and determined that they were not misleading. We are not barred from reviewing a claim by a state procedural rule when the state courts themselves have not followed the rule. Burns v. Estelle, 592 F.2d 1297 (5th Cir.1979), aff'd en banc, 626 F.2d 396 (5th Cir.1980); see also Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). ⁵

The due process clause of the fourteenth amendment requires a trial judge to give a lesser included offense instruction to the jury "if the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater." Beck v. Alabama, 447 U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980) (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995-1996, 36 L.Ed.2d 844 (1973)). In a capital case a lesser included offense instruction is an especially important procedural safeguard:

For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Beck, 447 U.S. at 637, 100 S.Ct. at 2389. There is no due process violation, however, unless there is some evidence to support an instruction on the lesser included offense. Hopper v. Evans, --- U.S. ----, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); ⁶ Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

Bell points out that the State successfully requested an instruction on "aiding and abetting" apparently because there was evidence that Bell never fired a shot. While Posey testified that Bell had told him that he himself had shot the victim, Posey did not see the incident and Bell expressly denied shooting anyone. Bell maintains that if the evidence supports "aiding and abetting," it also supports a verdict of simple murder.

The trial judge's instructions to the jury, however, correctly stated Mississippi law which apparently allows a defendant to be convicted of capital murder if someone is killed during the course of a robbery in which he was participating. Miss.Code Ann. Sec. 97-3-19(2)(e) (1982 Supp.). ⁷ In Mississippi, no murder committed during the course of a robbery can be simple murder. Id. Since Bell testified to the robbery, any murder committed had to be capital. Similarly, manslaughter is killing without malice, either in the course of a felony other than rape, burglary, arson or robbery or in the heat of passion. Miss.Code Ann. Secs. 97-3-27, 97-3-35 (1972). Since there was no evidence of "heat of passion," and the robbery element was uncontested, the evidence could not support a verdict of manslaughter without capital murder. ⁸

The Alabama statute in question in Beck required a finding of intent to kill before a defendant could be convicted of capital murder. Since there was conflicting evidence on the issue of intent at trial, the State conceded that there was evidence to support a lesser included offense of "simple" felony murder. In contrast, any murder committed during the course of a robbery is capital under Mississippi law. Therefore, the trial court's refusal to give a lesser included offense instruction at Bell's request was proper, since there was no evidence to support the lesser charge. ⁹

Bell also contends that the writ must be granted because of the trial judge's failure to define the elements of armed robbery and kidnapping. The...