783 F.2d 487 (5th Cir. 1986), 85-2459, Wicker v. McCotter

Docket Nº:85-2459.
Citation:783 F.2d 487
Party Name:Chester Lee WICKER, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent-Appellee.
Case Date:February 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 487

783 F.2d 487 (5th Cir. 1986)

Chester Lee WICKER, Petitioner-Appellant,

v.

O.L. McCOTTER, Director, Texas Department of Corrections,

Respondent-Appellee.

No. 85-2459.

United States Court of Appeals, Fifth Circuit

February 18, 1986

Page 488

[Copyrighted Material Omitted]

Page 489

Charlotte Harris, Public Defender, Wichita Falls, Tex., Bruce V. Griffiths, Houston, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GEE, RUBIN and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Chester Lee Wicker was convicted of capital murder and, after a separate sentencing proceeding, was sentenced to death based on the jury's findings. He now seeks habeas corpus relief, asserting six bases in his petition. The district court found all of Wicker's claims lacking in merit. Because the district court did not err in its assessment, we affirm the judgment denying him relief.

I.

Shortly after dark on April 4, 1980, Chester Lee Wicker was driving his mother's car on a street in Beaumont, Texas. He saw a young woman, Suzanne Knuth, walking along the street. He had never seen the woman before, but he turned the car around, pushed her into the car, and drove away. Two witnesses, Dee Ann Barthell and Jerry Adkins, told police officers that they had seen a woman struggling with a white man, who forced her into a grayish-silver Oldsmobile. Knuth's purse and necklace were found near the place the witnesses pointed out, and the area showed signs of a scuffle. From a photograph, Barthell tentatively identified Calvin Knuth, Suzanne Knuth's husband, as the abductor.

In the early morning hours of the next day, April 5, 1980, Wicker went to the home of Olive King, a family friend at Crystal Beach, Galveston, Texas. He said that his car was stuck in the sand at Crystal Beach near the Sun Oil Company field. At Wicker's request, King telephoned Wicker's uncle, Bob Wicker, for help. The car that Wicker had been driving, his mother's gray Oldsmobile Cutlass, was stuck in the sand on the beach, three or four miles from the Sun Oil field. Bob Wicker noticed blood on the floormat of the car and on his nephew's shirt, and asked Wicker about it. Wicker said that he had cut his arm. His uncle noticed, however, that the blood on his shirt was not in the place where Wicker

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said he had been cut. Wicker later fled to California and thence to Washington. On April 11, 1980, he was seen by another uncle, Chester Vaughn, in El Centro, California.

Acting on information gained in investigating Ms. Knuth's disappearance, a deputy sheriff from the Jefferson County Sheriff's Office informed the Beaumont police that they should investigate the Crystal Beach area. Following the suggestion, Beaumont police spoke with Bob Wicker, who directed them to where Wicker's car had been stuck in the sand. They searched the area for two hours, but found nothing of significance.

The police then went to the apartment of Wicker's mother, Mary Wicker, where they noticed a car matching the description of the one seen during the abduction. While the police were inside the apartment interviewing Mrs. Wicker, the telephone rang and Detective Larry Thomas answered. The operator indicated it was a long distance call from "Chet" Wicker. He handed the phone to Mrs. Wicker, who took it to the far side of the room. Although she spoke in a low tone, the officers heard her say that the police were there. After she had completed the conversation, Mrs. Wicker told the police that the call was from her sister.

With the consent of Mrs. Wicker, the police searched her car and took hair and carpet samples. Two days later, Mrs. Wicker brought the car's floormats, which the police had seen inside the apartment, to the police station. At the time the police first saw the mats, they were dirty, but, when brought to the station, they were clean.

The investigation continued. After being hypnotized by a police hypnotist on April 14, Barthall, who was sixteen and who had witnessed the abduction en route to a disco, identified Wicker (rather than Calvin Knuth) from a photo spread. A few days later, Wicker's cousin, Adana Bennett, of El Centro, California, spoke by telephone with two Beaumont detectives, and with Wicker's grandparents and mother. She said that Wicker had telephoned her on April 18, said that he was in the state of Washington and that he wanted to return to Texas to "straighten out" his problems there. In these conversations, Wicker's family and the police made arrangements for Wicker to return to Galveston by bus. When Wicker later arrived in El Centro, California, he told Bennett that "he was in trouble, he was afraid he would have to go to prison," and his mother had been "pressuring" him to leave Beaumont. The next morning, April 21, a member of Wicker's family notified the Beaumont detectives that Wicker would arrive in Galveston and was coming back to tell what happened.

The Beaumont police and Wicker's grandfather, Paul Long, agreed that Long would meet Wicker in Galveston and take him to the Beaumont Police Station. Then the police learned from Long that Mary Wicker was planning to meet her son at the bus station in Houston. Apprehensive that Wicker might again flee, the police decided to obtain a warrant for his arrest on a charge of aggravated kidnapping.

Armed with the warrant, Beaumont and Houston police arrived at the Houston bus station between 10:30 and 11:00 p.m. on April 21. They met Mary Wicker and spoke with her. There is a dispute about what was said, but the police version is that Mrs. Wicker informed them that she had spoken with an attorney and asked that they let her talk with Wicker once he arrived. The police officers say they agreed that she might talk with him in their presence.

As Wicker got off the bus in Houston, just before midnight, April 21, he was arrested by two Houston police officers who turned him over to the Beaumont police. The Beaumont police gave Wicker Miranda warnings within minutes of the arrest. They testified that they then looked around for Mrs. Wicker, but did not see her. Mrs. Wicker, however, said that the police refused to let her meet with her son.

Four policemen traveled from Houston to Beaumont with Wicker by car. One officer testified that, during the ride, he told Wicker

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what he knew about the offense and that he wanted Wicker to show him where the body was. He urged Wicker to give him this information so the victim's family could give her "a decent burial," a "Christian burial." Wicker responded that he "wanted to [help] but that it was bad" and asked for assurance that he would not be hurt. The officer testified that after he reassured Wicker, Wicker agreed to show the police where he had buried the body. They proceeded to that part of Crystal Beach where the Oldsmobile had been stuck in the sand, and conducted a quick search in the dark, but were unable to locate anything. Wicker gave some details of the offense and agreed to give a statement in Beaumont. The testimony was confirmed by the testimony of the other three officers. Wicker gave a different account, asserting that he had been threatened and physically abused by the police and he thereafter acted in fear of physical harm.

When the group arrived in Beaumont, the police took Wicker to the Jefferson County District Attorney's Office, where they read Miranda warnings to him. Wicker gave a written statement (the Beaumont statement) in which he affirmatively waived his rights to counsel and to remain silent. The taking of the statement was completed about 4:30 a.m., at which time Wicker was booked. At about 6:00 a.m., the Beaumont authorities took Wicker back to the beach. Wicker showed them where the body was buried and also led them to where he had buried some of the victim's belongings. Part of the body, which was only partially buried in an area surrounded by weeds, was sticking out of the sand. The place where the body was found was in Galveston County, the county seat of which is in Galveston, not in Jefferson County, in which Beaumont is located.

Upon returning to Beaumont, the police photographed Wicker and then, at 8:35 a.m., brought him before a magistrate who gave him the warnings required by Texas statute. Wicker asked to telephone his mother and was permitted to do so. He was then confined in the Beaumont County jail. Wicker informed the police that his mother had communicated with an attorney. Two lawyers arrived shortly thereafter and asked to speak with Wicker. The police allowed the conference. The lawyers advised Wicker not to say anything or sign any statement and then left.

Wicker had said in his Beaumont statement that Suzanne Knuth had jumped from the moving car, and that the fall either knocked her unconscious or killed her. On April 23, however, the police laboratory reported to Detective Thomas that the clothing of the deceased showed no signs of having fallen out of a moving car. Thomas told Wicker of the lab results and Wicker then made an oral statement to Thomas, which was not reduced to writing.

Wicker was indicted by the Galveston County grand jury for capital murder on April 24. On the same day, about 5:00 p.m., he was informed of the charges by a criminal investigator from the Galveston County District Attorney's Office, who again gave him Miranda warnings.

Thereafter, the police transported Wicker to Galveston. During the trip, Wicker told the police that he understood his rights. He said he had spoken with an attorney in Beaumont, but had not retained that attorney because his fees were to high. One of the lawyers...

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