Milton v. Procunier

• Decision Date: 10 October 1984
• Docket Number: No. 83-1910,83-1910
• Citation: 744 F.2d 1091
• Parties: Charles MILTON, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1091

744 F.2d 1091

Charles MILTON, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent- Appellee.

No. 83-1910.

United States Court of Appeals, Fifth Circuit.

Oct. 10, 1984.

Rehearing and Rehearing En Banc Denied Nov. 14, 1984.

Brown, Herman, Scott, Dean & Miles, George Grant Liser, III, Fort Worth, Tex. (court-appointed), for petitioner-appellant.

Jim Mattox, Atty. Gen., Leslie A. Benitez, Paula Offenhauser, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, TATE, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Charles Milton levels eight arguments in this his first federal habeas attack upon his conviction of capital murder by a Fort Worth, Texas jury. Because this was Milton's first federal habeas petition, we granted his unopposed request for stay of execution. After an evidentiary hearing the district court dismissed Milton's petition for writ of habeas corpus. We affirm. ¹

I

Leonard and Menaree Denton, black residents of Fort Worth, Texas, owned and operated L & M Liquor, a local liquor store. At about 2:30 p.m. a black male entered the store and after asking about a coconut cream mix, drew a .38 caliber Smith & Wesson revolver and ordered the Dentons to put the money from the register and their wallets into a paper sack. When the robber ordered the Dentons into a back room, Leonard grabbed the robber's gun while Menaree broke two wine bottles over the robber's head, with no apparent effect. In the ensuing struggle both Menaree and Leonard were shot. As they struggled, Leonard and the robber fell through the front door. Despite his wound, Leonard managed to take possession of the gun. With the approach of a customer, the robber fled leaving Leonard wounded in the doorway and Menaree dead behind the counter, shot through the heart. The gun was quickly traced to Milton. Leonard identified Milton at a police lineup.

Milton was convicted of capital murder by a Fort Worth jury which then answered the three death penalty questions required by Article 37.071(b), Tex.Code Crim.Proc.Ann. The conviction and sentence were affirmed by the Court of Criminal Appeals of Texas. Milton v. State, 599 S.W.2d 824, 825 (Tex.Crim.App.1980) (en banc). The Supreme Court denied certiorari. Milton v. Texas, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1980), reh'g denied, 453 U.S. 923, 101 S.Ct. 3160, 69 L.Ed.2d 1006 (1981). With execution scheduled for September 15, 1981, Milton on September 8 simultaneously filed petitions for writs of habeas corpus and stays of execution with the 213th Judicial District Court of Tarrant County, Texas and the Court of Criminal Appeals of Texas. The state habeas courts denied relief without an evidentiary hearing and Milton sought similar relief from the United States District Court in Fort Worth, Texas, which, without hearing or opinion, granted a stay of execution.

The district court adopted certain of a magistrate's findings, held an evidentiary hearing with regard to others, and then denied all relief. The district court later denied a certificate of probable cause. On March 2, 1984, it formally vacated the stay first granted in September, 1981. Milton's execution was set for May 5, 1984 and we issued a stay on April 25, 1984.

II

Milton urges that: (1) insufficient evidence supported the jury finding that he deliberately caused the death; (2) the prosecutor improperly commented on his failure to testify; (3) the trial court improperly prevented voir dire into the jurors' understanding of the word "deliberately," a term Texas law deems so common as not to require definition in a jury charge; (4) the admission into evidence of prior unadjudicated offenses during the penalty phase of the trial violated the fifth, sixth, eighth and fourteenth amendments; (5) the failure of trial counsel to offer evidence in the penalty phase of the trial deprived Milton of the effective assistance of counsel; (6) by charging jurors during voir dire that they must swear that their views on capital punishment would not influence their deliberations on any issue of fact, the trial court circumvented the rule in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); (7) the death penalty in this case is disproportionate, arbitrary, discriminatorily imposed, and based on an inadequate inquiry into future dangerousness; and (8) the conviction was the fruit of an illegal arrest and detention flowing from an impermissibly suggestive lineup. There being no question regarding exhaustion of state remedies, we discuss the merits of each in turn.

1.

Milton argues that the evidence does not support the requisite finding at the penalty stage that his shooting of Menaree was "committed deliberately and with the reasonable expectation that her death would result." The Court of Criminal Appeals of Texas rejected the same argument. ²

We have no legally sufficient basis to quarrel with the state court's decision that there was sufficient evidence to support capital murder, whether its decision be clothed with the protection of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and we think it is not, or be reviewed for evidentiary sufficiency under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reasonable juror could have concluded from Leonard's trial testimony that he feared that Milton intended to kill him and his wife in the back room and that he seized the gun in a desperate effort to avoid that fate. That contemporaneous reading of the events is supported by the objective evidence and in turn supports the Texas courts in their conclusion that a jury could have concluded that Menaree's death was deliberate and that Milton's repeated efforts to point the gun at her were with the reasonable expectation that death would result. At the least, any evidentiary weakness was not of constitutional proportions, cognizable in federal habeas.

2.

Milton urges that the following argument constituted an improper comment on his failure to testify:

At one point Mr. Carter, during the voir dire examination, said "you, know, this is not a monster movie." And he gave an example about the martians coming down and doing it, reasonable doubt. Boy, he's right. This is a nightmare. People, a person who lived through that nightmare is still here to tell you about it. Easiest thing in the world for you to do is not to find him guilty of capital murder. But, you know, we picked a jury. Twelve people who had the integrity the backbone to bow their necks and call it like they see it. I think you're that jury. (emphasis supplied.)

Texas argues that viewed in context the argument concerning the person "still here to tell [the jury] about it," stepped on no right of Milton. "The test we must apply is 'whether or not the statement was manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' " United States v. Jennings, 527 F.2d 862, 871 (5th Cir.1976), quoting United States v. Wilson, 500 F.2d 715, 721 (5th Cir.1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975). Texas has not invoked its contemporaneous objection rule, but the absence of objection by two experienced and able defense counsel supports a common-sense interpretation that the reference would not naturally and necessarily be taken to be a comment on Milton's protected silence. Petitioner has pointed to nothing suggesting that the prosecutor so intended and we found nothing in our review of the record. The argument is without merit.

3.

Milton urges that the refusal of the state trial judge to allow his counsel to inquire into the veniremen's understanding of the terms "deliberately," "probability" and "criminal acts of violence" denied him due process and his sixth amendment rights to trial by jury and counsel. ³

During jury selection, the court sustained objections to the efforts of Milton's counsel to inquire into the jurors' understanding of the terms "deliberately" and "criminal acts of violence." Under Texas law, these terms are sufficiently common that their definition is not required in a jury charge under the capital murder statute. Moreover, counsel has no right to ask prospective jurors to articulate their understanding of the language. Battie v. State, 551 S.W.2d 401, 405 (Tex.Crim.App.), cert. denied, 434 U.S. 1041, 98 S.Ct. 782, 54 L.Ed.2d 790 (1977).

Milton's theory is that this limitation on voir dire violated rights secured to him by the sixth and fourteenth amendments. The inability to pursue this inquiry, he posits, is so unfair as to deprive him of due process, and so limited his capacity to conduct meaningful voir dire as to deprive him of the effective assistance of counsel. An English professor at Texas Christian University testified at the evidentiary hearing on the federal habeas. The professor, who had extensive training in linguistics and semantics, explained that each of the terms were commonly used to mean different things. His testimony, however, did not place the words in the context of the charge and trial, where the evidence, the argument of counsel, and the context of the charge itself lend definition to abstractly ambiguous words. For example, he explained that violent acts of a criminal nature could mean assaultive type behavior or could refer to a temper tantrum. He conceded, however, that this understanding was unlikely when placed in the context of a criminal trial. Similarly, he explained that "deliberately" could mean purposefully or it could mean doing an act slowly or with care.

But we do not need the aid of specialized study to be aware that commonly used words may have multiple common understandings. The difficulty with Milton's argument is that it stops halfway up the...