Spence v. Johnson
| Decision Date | 29 March 1996 |
| Docket Number | Nos. 94-20212,94-20213,s. 94-20212 |
| Citation | 80 F.3d 989 |
| Parties | David Wayne SPENCE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raoul D. Schonemann, Kenneth D. Driggs, Robert C. Owen, Eden Harrington, Joel David Schwartz, Texas Resource Center, Austin, TX, J. Patrick Wiseman (Court-appointed), Wiseman, Durst & Tuddenham, Austin, TX, for appellant.
William C. Zapalac, Dan Morales, Atty. Gen., Austin, TX, for appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and DAVIS and JONES, Circuit Judges.
In 1982, David Wayne Spence tortured and stabbed to death three teenagers in Waco, Texas. He has been convicted and sentenced to die for two of the murders in Texas courts and has been denied habeas corpus relief by the federal district court. Spence now seeks relief from this court. We find no reversible error and affirm.
On the morning of July 13, 1982, Jill Montgomery and Raylene Rice drove to Waco to pick up and cash Jill's paycheck from the Fort Fisher Ranger Museum and to meet their friend Kenneth Franks. Later that day, the three drove to Koehne Park, located on the banks of Lake Waco. They were never seen alive again by their loved ones. Their bodies were found in a wooded area of Speegleville Park, across the lake from Koehne Park, a day later. Their last moments are recorded in the record of the two trials.
After arriving at the park, Kenneth, Jill, and Raylene encountered Spence and his cohorts, Anthony (Tony) and Gilbert Melendez. The six "hung out" together for some time drinking beer and smoking marijuana joints. After a few hours, in the evening, Spence persuaded the group to go to a convenience store and buy more beer. En route in his car, Spence attempted to grab Jill's breast. When she resisted, they argued heatedly. Spence then warned Kenneth and Jill he was going to "get even" with them "for some dope that he [Kenneth] had burned me for." Kenneth denied he had "burned" Spence for anything.
Instead of driving to the convenience store, Spence turned and drove back into a wooded area in Koehne Park. After everyone got out of the car, he produced a knife and in vile terms ordered Jill and Raylene to undress. The girls immediately complied. Spence then forced Jill to walk with him to another part of the park. Gilbert ordered Raylene to get into the car. Gilbert then raped her.
Spence told Anthony to bring Kenneth, forcibly, to where he was with Jill, so that Kenneth could watch him rape Jill. Spence forced Jill to the ground, sat on her legs, and rubbed her breasts with his knife. He then raped her while Kenneth and Anthony watched. After Spence finished, Anthony traded places with him and raped Jill. Spence marched Kenneth back to the car where he raped Raylene.
After this rape, Spence returned to Jill. He cut her breasts and repeatedly stabbed her. At some point, Spence bit off one of Jill's nipples. He then handed his knife to Anthony, telling him to stab Jill. When Spence believed that Anthony was not properly stabbing her, Spence took back his knife and finally inflicted the lethal wounds.
Spence then returned to the car and stabbed Kenneth to death. After this second murder, Spence grabbed Raylene and repeatedly stabbed her. He also ordered Tony to stab her. He then bit her body several times and rammed a piece of wood--which he referred to as his "lovestick"--into her vagina.
While Spence remained with the bodies, Anthony and Gilbert drove to Spence's mother's home and exchanged the car for Gilbert's pick-up truck. During their absence, Spence bound the bodies. When the Melendezes returned, the trio threw the bodies into the back of the truck and, at Spence's direction, drove to Speegleville Park. They dumped the dead teenagers' bodies apart from each other in an off-the-road area. In placing Kenneth's body, Spence boasted to Tony that the police "were going to freak out when they find this boy because he will be sitting up." Spence and the Melendez brothers divided up several hundred dollars Spence had taken from Jill's wallet.
The tortured bodies of Jill, Raylene, and Kenneth were found the next day.
From the federal habeas record, it transpires that intensive investigation of the highly publicized murders yielded no clear suspects, leading the Waco Police Department to reduce the case to inactive status in September. That is to say, the department no longer committed extraordinary resources to the case. One dogged police officer, Truman Simons, volunteered to pursue the investigation and continued to work on it even after he changed jobs and became a jailer employed by the McLennan County Sheriff's Office. After January 1993, a newly elected district attorney, Vic Feazell, encouraged the investigation. By late March 1993, Simons persuaded Gilbert Melendez to confess his involvement and that of Spence in the crimes. Gilbert and Anthony Melendez, Spence and Muneer Deeb were indicted for the capital murders in November 1983. Spence was tried first in McLennan County for killing Jill, while his second capital murder prosecution was moved to Brazos County. The evidence in the two trials differs somewhat, as will be described below.
In July 1984, Spence was convicted in the 54th Judicial District Court of McLennan County for the capital murder of Jill Montgomery. Following a separate punishment hearing, the jury affirmatively answered the court's special issues required by the former Texas Code of Criminal Procedure Article 37.071. Accordingly, the court sentenced Spence to death. The Texas Court of Criminal Appeals affirmed Spence's conviction and sentence, Spence v. Texas, 795 S.W.2d 743 (Tex.Crim.App.1990) (en banc), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991). Spence then filed an application for a writ of habeas corpus with the convicting court. The court adopted the State's response as its findings and recommended relief be denied. The Texas Court of Criminal Appeals denied relief based on the trial court's findings, Ex parte Spence, Application No. 15,346-03 (Dec. 12, 1991).
In September 1985, Spence was convicted after a change of venue in the 85th Judicial District Court of Brazos County for the capital murder of Kenneth Franks. Again, after a separate punishment hearing, Spence was sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence, Spence v. Texas, No. 69,554 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). Spence's application for a writ of habeas corpus was denied by the Texas Court of Criminal Appeals based on the trial court's recommendation. Ex parte Spence, Application No. 15,346-03 (Dec. 12, 1991).
In December 1991, Spence filed federal petitions for writ of habeas corpus regarding each conviction and sentence. The petitions were assigned to one judge. After reviewing his allegations in each case, the court denied the petitions in separate opinions and orders dated April 29, 1992.
Spence filed a voluminous motion to alter or amend the judgments. The district court consolidated its proceedings and ordered an evidentiary hearing on Spence's allegations that the State had suppressed material exculpatory evidence. The parties agreed the best way to develop the evidentiary record was through depositions and affidavits, followed by massive briefing and oral argument. Numerous depositions were taken and numerous affidavits submitted. After the hearing, the district court re-entered, with very brief opinions, its earlier judgments denying habeas corpus relief.
This court granted certificates of probable cause to appeal, heard consolidated oral argument, and treats both cases in this opinion. For convenience, the claims raised in the Kenneth Franks case are discussed first, followed by the Jill Montgomery case issues.
This court reviews the district court's legal conclusions de novo, applying the same standard as the district court, and its factual conclusions for clear error. Amos v. Scott, 61 F.3d 333, 337-38 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995) (citations omitted). "A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed." In re Henderson, 18 F.3d 1305, 1307 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994) (internal quotations and citations omitted).
Critical to evaluating Spence's claims is a general understanding of the evidence offered at the trial for capital murder of Kenneth Franks.
By the time of the Kenneth Franks trial, both Gilbert and Tony Melendez had agreed to testify for the state, each having pled guilty to two life sentences while the third capital murder indictment hung over their heads. The State introduced expert evidence identifying Spence as the source of Jill's bite injuries. The State also offered incriminating statements Spence had made to Regina Rosenbaum and inmate David Puryear. Spence's defense was predicated on the lack of conventional demonstrative evidence connecting him to the crime; the internal and mutual inconsistencies in the testimony and statements of Gilbert and Tony Melendez; the asserted lack of corroborating evidence for the Melendez brothers' version of events; and the unreliability of the State's forensic odontology evidence. The defense also sought to show that Gilbert's truck was inoperable on the night of the crimes and that people present in Koehne Park that evening did not recall seeing Spence's group with the victims.
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