Wingo v. Blackburn

• Decision Date: 24 February 1986
• Docket Number: No. 85-4580,85-4580
• Citation: 783 F.2d 1046
• Parties: Jimmy C. WINGO, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1046

783 F.2d 1046

Jimmy C. WINGO, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 85-4580.

United States Court of Appeals,

Fifth Circuit.

Feb. 24, 1986.

Rehearing and Rehearing En Banc Denied April 4, 1986.

Robert Selcov, Ward J. Oliver, Poughkeepsie, N.Y., Stephen M. Latimer, East Brunswick, N.J., F. Ray Mouton, Jr., Lafayette, La., for petitioner-appellant.

Henry N. Brown, Jr., Dist. Atty., 26th Judicial Dist. Court, Benton, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, REAVLEY and HILL, Circuit Judges.

REAVLEY, Circuit Judge:

Jimmy C. Wingo has been convicted and sentenced to death in the courts of Louisiana for the murders of Newton and Erline Brown on Christmas Day of 1982. See State v. Wingo, 457 So.2d 1159 (La.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2049, 85 L.Ed.2d 322, reh'g denied --- U.S. ----, 105 S.Ct. 2691, 86 L.Ed.2d 708 (1985). The federal district court denied Wingo's petition for habeas corpus. We granted certificate of probable cause, and after consideration of the briefs and oral argument of counsel, and study of the state record, we affirm the denial of habeas corpus.

I.

On Christmas Eve about 8:00 p.m. Wingo escaped from the jail in Minden, Louisiana, where he had been confined under burglary charges. Accompanied by another escapee, Jimmy Glass, he avoided the roads and walked several miles along railroad tracks to the Brown home. The next day the bodies of Mr. and Mrs. Brown were found in their bed, gagged and bound at the hands and feet. Both had been killed by gunshots to the back of their heads. Their house had been ransacked. Entry had been made through a broken glass patio door.

At daybreak on Christmas, Wingo arrived at the home of his sister, Betty Whittington, in Vivian, Louisiana. He had cash, clothing, weapons, and ammunition taken from the Brown home. The Brown's Lincoln automobile was later found, stalled in high water on the road, a quarter of a mile from the Whittington home. Accompanied by Glass and Gwen Hill, Wingo's girlfriend, he then drove a Datsun pickup into East Texas. Wingo and Hill were captured in woods near Atlanta, Texas, on January 5, 1983. Glass was apprehended in California. Wingo and Glass were indicted on two counts of first degree murder. Glass was tried first, convicted on both counts, and sentenced to death. Wingo was also convicted and sentenced to death for both murders.

Diligent counsel for Wingo attack the constitutionality of the conviction and death sentence on 10 grounds. We will address each ground.

II. THE ENMUND CLAIM

In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Supreme Court held that the Eighth Amendment barred the imposition of the death penalty "in the absence of proof that [the defendant] killed or attempted to kill, and regardless of whether [he] intended or contemplated that life would be taken...." Id. at 801, 102 S.Ct. at 3378-79. Wingo argues that, as in Enmund's case, in the absence of proof that he participated or intended the murders of Mr. and Mrs. Brown, it cannot be said that the death penalty is proportional to his conduct. We are cited to our opinion in Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984), where we granted writ because of the absence of proof of the culpability of Jones that was required by the Court in Enmund.

Both Enmund and Jones were convicted of felony murder crimes not requiring proof that the defendant shared any culpability for the homicide except that he participated in the felony underway when a confederate did the killing. Wingo, however, was convicted of first degree murder under the Louisiana law which requires proof of specific intent to kill or inflict great bodily harm. The jury was so instructed and found that Wingo did have that specific intent. The Supreme Court of Louisiana upheld the conviction at that point and wrote:

The jury had ample circumstantial evidence from which to reasonably conclude that defendant was with Glass in the bedroom where the murder occurred. He escaped with Glass shortly before from a nearby jail. Like Glass, he had a pressing motive to steal money (both were penniless), clothes (both had only jail outfits), transportation (both were seeking to flee the area), and weapons (both vowed not to be "taken alive"). He and Glass appeared together at his relatives' home shortly after the crime with clothes, guns, and money which were identical or very similar to items stolen during the break-in at the Browns' home. He and Glass made statements that they had "robbed" a house to secure the money and guns. He and Glass took a vehicle from his relatives without their consent and continued their flight to Texas. When defendant found that he was being hunted in connection with the murders, he fled into the woods, where he concealed various items which could be identified with the Browns' home. Upon being captured, defendant had a pair of gloves in his possession which matched the fabric print made by a glove on a ransacked dresser drawer in the Browns' home, and he made a highly incriminating statement ("I always wear gloves when I commit a crime") to an arresting officer. Finally, a fiber found on pants left by defendant at the Whittingtons' home matched the fiber of a blanket on the Browns' bed where the bodies were found.

Because Glass refused to testify and defendant elected to exercise his constitutional right not to testify, there was no direct evidence (in the guilt phase) of defendant's role in these crimes. Nevertheless, a rational juror, viewing the overall evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant actively participated in the killing of the victims (whose deaths were obviously purposefully inflicted). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Given the evidence presented, it was certainly reasonable for the jury to conclude that defendant's role was that of an equal partner in all of the crimes committed by the two during this episode, including the murders. The theory that Glass (who was significantly smaller than both defendant and Mr. Brown) broke in alone and overpowered the Browns while defendant waited outside, unaware that Glass would kill the helpless victims, is simply not a compelling hypothesis, and the jury acted reasonably in rejecting it. See State v. Captville, 448 So.2d 676 (La.1984); State v. Chism, 436 So.2d 464 (La.1983); State v. Sutton, 436 So.2d 471 (La.1983).

457 So.2d at 1164-65 (footnote omitted).

Because the state court has found the requisite culpability to satisfy Enmund, the finding is presumed to be correct by virtue of 28 U.S.C. Sec. 2254(d) (1982) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), Cabana v. Bullock, --- U.S. ----, ----, 106 S.Ct. 689, 698, 88 L.Ed.2d 704 (1986). We are in agreement with the Supreme Court of Louisiana and conclude that the finding is fairly supported by this record. See 28 U.S.C. Sec. 2254(d)(8). To what the Louisiana court wrote we add that the jury had every reason to conclude that Wingo was the dominant figure in this twosome and that nothing was done that night without his approval and participation. He was a former policeman, a large man. He initiated the jailbreak because he had been denied a visit from Gwen Hill (the mother of his child) when his sister's husband, Frank Whittington, failed to bring Hill from Vivian to Minden on the previous day. Jimmy Glass was a small man, only 20 years old. Wingo's participation in the attack in the Brown bedroom is quite clear. Newton Brown was a large and active man, 55 years old. He had a pistol in his closet. A very protective Dalmatian dog was in the bedroom. Brown's body had wounds on his elbow and abrasions on his knuckles. To subdue him, ward off the dog, and tie the victims was far more than Glass could have accomplished alone.

After the murders Wingo remained the dominant figure. He drove the Brown car to Vivian, not to Glass' desired destination. He arrived at his sister's home announcing that he was going to kill Frank Whittington and had to be dissuaded by Gwen Hill. He left saying that he would not be taken alive, an understandable statement for one guilty of vicious murder but hardly the expected posture of a mere burglar. We cannot fault the state finding that Wingo intentionally participated in the murder of Newton and Erline Brown.

III. THE COURT'S INSTRUCTION ON SPECIFIC INTENT

Wingo contends that the jury was not adequately instructed that, in order to find this defendant guilty, they would have to find that he had the specific intent to kill, irrespective of the intent of Glass and the fact that the two of them participated in the burglary. To support this argument petitioner's brief quotes two statements made by the prosecutor during the jury selection. Because the prosecutor referred to the law of principals, whereby all principals are equally guilty of the offense that they may commit, Wingo argues that as in Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.1982), reh'g denied, 697 F.2d 699 (1983), the prosecution was relieved of its burden in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

This record allows no possibility that the jury in this trial could have misunderstood the burden of the state in this respect. They were repeatedly told that they could not find Jimmy Wingo guilty of first degree murder unless he was proved to have intended to kill. The trial judge told them this on many occasions, and the final instruction at the guilt stage made no mention of the law of principals. Neither Enmund nor Mullaney impose a constitutional requirement that the instruction on specific intent be repeated at the sentencing stage.

IV. INEFFECTIVENESS OF COUNSEL

Wingo...