732 Fed.Appx. 249 (5th Cir. 2018), 17-70007, Murphy v. Davis

Docket Nº:17-70007
Citation:732 Fed.Appx. 249
Opinion Judge:PER CURIAM:
Party Name:Jedidiah Isaac MURPHY, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
Attorney:Randolph Lee Schaffer, Jr., Schaffer Firm, Houston, TX, Richard Ellsworth Wetzel, Austin, TX, for Petitioner-Appellant George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee
Judge Panel:Before KING, DENNIS, and COSTA, Circuit Judges.
Case Date:April 20, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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732 Fed.Appx. 249 (5th Cir. 2018)

Jedidiah Isaac MURPHY, Petitioner-Appellant


Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

No. 17-70007

United States Court of Appeals, Fifth Circuit

April 20, 2018


Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:10-CV-163

Randolph Lee Schaffer, Jr., Schaffer Firm, Houston, TX, Richard Ellsworth Wetzel, Austin, TX, for Petitioner-Appellant

George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee

Before KING, DENNIS, and COSTA, Circuit Judges.



Jedidiah Isaac Murphy, a Texas death row inmate, seeks a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(2) to appeal the denial of his petition for writ of habeas corpus. We GRANT a COA on two of Murphy’s claims— that the State suppressed evidence by failing to disclose the existence of a pretrial conversation between a witness and the lead prosecutor and that trial counsel was constitutionally ineffective during the penalty phase of trial by failing to correct a potentially misleading impression created by one of his experts. We DENY Murphy’s request on all his other claims.


Jedidiah Isaac Murphy forced 80-year-old Bertie Cunningham into the trunk of

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her own car, shot her in the head, drove her body to a creek, and dumped her there. Murphy was arrested two days later. He admitted to the shooting and led police to the location of Cunningham’s body. Later at the police station, he wrote and signed a statement claiming that he accidentally shot Cunningham while forcing her into her own trunk.

The State of Texas tried Murphy for capital murder. During the guilt phase of Murphy’s trial, Murphy’s counsel objected to the introduction of Murphy’s signed statement. Counsel argued it was given both involuntarily and in violation of Miranda . She also requested an instruction directing the jury to consider the voluntariness of the statement. Her request was granted.

To show Murphy’s signed statement was lawfully obtained, the State called the detective who acquired it. According to the detective, when Murphy was arrested he was given the Miranda warning and brought to a magistrate for arraignment. After the arraignment, the detective drove Murphy to the creek where Cunningham’s body was located. The detective asked Murphy to get out of the car and show him where Murphy threw his gun, but Murphy refused. Murphy was taken back to the police station. There, he wrote and signed a statement admitting to the shooting but claiming it was an accident. For the first seven days after his arrest, Murphy voluntarily spoke to the police when interrogated. But on the eighth day, after being given the Miranda warning, Murphy told the detective he no longer wished to speak to the police. His request was honored. Based on this testimony, the trial court admitted Murphy’s signed statement.

The detective also testified that he drove Murphy around, looking for the spot where Murphy abducted and killed Cunningham. Murphy was not able to identify the spot. During cross-examination, defense counsel elicited that Murphy was both cooperative and truthful when he tried but failed to identify where the abduction occurred. On redirect, the State elicited that the detective’s opinion of Murphy’s truthfulness eroded over time. According to the detective, Murphy did not answer "quite a few" questions and parts of his statement turned out to be false.

The jury was instructed on capital murder, murder, and manslaughter. During summation, Murphy’s counsel argued that if Murphy’s gun went off accidentally, he did not intend to kill Cunningham, and thus he could not be convicted of capital murder. The prosecution told the jury that capital murder "is the first offense you are to consider. Only if you do not believe the State has proven it beyond a reasonable doubt do you go to one of the lesser included offenses." This drew no objection from Murphy’s counsel. The jury convicted Murphy of capital murder.

The State sought the death penalty. During this phase of the trial, the sides clashed over the future threat to society Murphy would pose if allowed to live. In particular, the severity of Murphy’s history of violence was a point of contention.

To demonstrate such a history, the State introduced evidence implicating Murphy in a three-year-old kidnapping. Sheryl Wilhelm testified that Murphy had kidnapped her three years before the Cunningham killing. After seeing a TV news report on Cunningham’s murder which featured Murphy’s photo, Wilhelm called the police to report Murphy as her potential kidnapper. She identified Murphy as her kidnapper in a photo lineup and then again at trial. The detective who conducted the photo lineup, John Stanton, testified that Wilhelm’s "was one of the better photo I.D.’s" he ever had and that she said "she

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was virtually sure that that was the guy who abducted her."

Murphy called a psychologist to attack Wilhelm’s identification. The psychologist testified that Wilhelm’s memory was potentially influenced by the photo of Murphy she saw on the news. He also pointed out prominent differences between a composite sketch, made just a week after the kidnapping, and the press photo releases of Murphy. Finally, the psychologist testified that the photo lineup was unfairly constructed— obvious differences between the mugshots reduced the odds of selection from one-in-six to one-in-three.

Defense counsel also raised an alibi defense to Wilhelm’s kidnapping. Wilhelm said she had been kidnapped, escaped, and had her car stolen at 11:30 a.m. in Arlington, Texas. The day after her kidnapping, Wilhelm’s car was found in Wichita Falls, Texas. In the car, the police found documents belonging to another woman. That woman had been assaulted and had her purse stolen at 8:24 p.m. on the day of Wilhelm’s kidnapping outside a Braum’s restaurant in Wichita Falls. Also on the same day, Murphy clocked in for his night shift at 11:54 p.m. in Terrell, Texas. Murphy’s counsel argued to the jury that Murphy did not have time to kidnap Wilhelm in Arlington, rob the other woman in Wichita Falls, and make it to work in Terrell.

The trial did not just focus on whether Murphy was a future threat to society. Murphy argued that mitigating circumstances reduced his moral blameworthiness. To buttress this case, Murphy called two psychologists: Dr. Mary Connell and Dr. Jaye Crowder.

Dr. Connell testified that she administered two tests on Murphy: the MMPI-II and the MCMI-III. The MMPI-II develops a mental and emotional profile of the test taker by comparing his or her answers to 567 true-false questions with other people in clinical settings. Murphy’s MMPI-II results showed, per Dr. Connell, that Murphy exhibited depression, anxiety, physical ailments, and paranoid thoughts. The MCMI-III consists of 175 questions related to the test taker’s character. Murphy’s MCMI-III results suggested, again per Dr. Connell, that Murphy suffered from extreme emotional distress and very disturbed function. Murphy’s results on both tests would normally prompt referral for psychiatric consultation and probably indicate a need for medication. Importantly, no psychologist besides Dr. Connell was directly involved in administering or interpreting Murphy’s MMPI-II and MCMI-III. The tests only draw on algorithms constructed by other psychologists to render hypotheses about the subject’s mental state and character. Further, neither test returns a final interpretation. Rather, as both reports— which were introduced into evidence— and Dr. Connell explained, the MMPI-II and MCMI-III offer only hypotheses.

When cross-examined, Dr. Connell agreed that Dr. James Butcher, "probably the leading expert in the country on the interpretation of the MMPI," had interpreted Murphy’s MMPI-II. In reality, Dr. Butcher had developed the test, but a computer algorithm was tasked with interpreting Murphy’s answers. This did not stop Dr. Connell from appearing to agree that Dr. Butcher himself concluded that Murphy "has serious problems controlling his impulses and temper," is "assaultive," "loses control easily," is manipulative, matches the profile of a Megargee Type H offender, and is a poor candidate for psychotherapy. The prosecution also referred to the MCMI-III as a "report produced by Dr. [Theodore] Millon in this case," without correction. Dr. Millon developed the MCMI-III, and Dr. Connell affirmed the

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prosecution’s characterization of him as authoritative. The prosecution elicited from Dr. Connell that through the MCMI-III, Dr. Millon himself had concluded that Murphy "may have reported more psychological symptoms than objectively exist," and Murphy has "a moderate tendency toward self-deprecation and a consequent exaggeration of current emotional problems." On redirect, Dr. Connell did not clarify that neither Dr. Butcher nor Dr. Millon personally administered or evaluated Murphy’s tests.

Murphy’s trial counsel also called another psychologist to provide mitigation testimony. Dr. Crowder, a psychologist and university faculty member, diagnosed Murphy with major depression and dysthymic disorder. He testified that Murphy was alcohol dependent, a narcissist, and had a borderline personality disorder. He explained what these disorders are and what effects they had on Murphy’s behavior. Dr. Crowder further explained the...

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