Stringer v. Jackson

• Decision Date: 22 December 1988
• Docket Number: No. 88-4126,88-4126
• Citation: 862 F.2d 1108
• Parties: James R. STRINGER, Petitioner-Appellant, v. Charles J. JACKSON, Interim Commissioner, Mississippi Dept. of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1108

862 F.2d 1108

James R. STRINGER, Petitioner-Appellant, v. Charles J. JACKSON, Interim Commissioner, Mississippi Dept of Corrections, et al., Respondents-Appellees.

No. 88-4126.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1988.

Rehearing and Rehearing En Banc Denied Jan. 20, 1989.

James E. Ostgard, Minneapolis, Minn. (Court-appointed), Kenneth J. Rose, Dennis Sweet, Jackson, Miss. (Court-appointed), for petitioner-appellant.

Marvin L. White, Jr., Felicia C. Adams, Asst. Attys. Gen., Jackson, Miss., for respondents-appellees.

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

Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:

James R. Stringer seeks the writ of habeas corpus to avoid his sentence of death by the Mississippi courts. We affirm the district court's denial of the writ.

I. Background

On the evening of June 21, 1982, Ray McWilliams and his wife, Nell McWilliams, were murdered in their home in Jackson. The State's case against James Stringer rested upon the testimony of Rhonda Brock and Mike Meddars, two of the five alleged participants in the crime, who testified that Stringer initiated the plan to rob the victims in their home and then to kill them in order to prevent detection. Stringer, who maintained his innocence throughout the trial, offered an alibi in his defense at the guilt phase of the proceeding. His son, Jimbo, and his girlfriend, Tammy, both of whom were under indictment for the same crime at the time of trial, also testified at the guilt phase and corroborated his alibi. Attorney Sam Wilkins, a personal friend of Stringer's, and Wilkins' associate, James Nelson, represented Stringer as well as the son and girlfriend.

Stringer was convicted of capital murder in the death of Nell McWilliams and sentenced to death. The Mississippi Supreme Court unanimously affirmed. Stringer v. State, 454 So.2d 468 (Miss.1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). Subsequently that court denied Stringer's motions to vacate or set aside judgment and sentence. Stringer v. State, 485 So.2d 274 (Miss.), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986). In response to the habeas corpus petition the federal district court stayed execution on January 12, 1987, held an evidentiary hearing on the issue of effective assistance of counsel, and then denied relief. Stringer v. Scroggy, 675 F.Supp. 356 (S.D.Miss.1987). The district court denied motion to alter or amend on January 22, 1988.

Stringer appeals on several grounds: (1) that prosecutorial misconduct caused the death sentence to be based on impermissible factors; (2) that the trial court's instructions at the sentencing phase violated the Eighth Amendment, improperly limited the jury's consideration of mitigating circumstances, and improperly guided the jury regarding its consideration of aggravating circumstances; (3) that the trial court erred in refusing to instruct the jury regarding lesser included offenses; (4) that trial counsel failed to provide effective assistance; (5) that appellate counsel rendered ineffective assistance; and (6) that the introduction of certain photographs into evidence violated his due process rights. Because each of Stringer's points of error is either procedurally barred or without merit, we affirm the district court's denial of the writ.

II. Prosecutorial Misconduct

Stringer contends that his sentence of death should be overturned because of several alleged instances of prosecutorial misconduct: (1) comments made during voir dire and closing argument; (2) photographs of the McWilliams introduced into evidence; and (3) comments made regarding Stringer's refusal to take a polygraph test. Both the district court and the Mississippi Supreme Court held that this claim was procedurally barred because no objections were raised either at trial or on direct appeal. Stringer, 675 F.Supp. at 365; Stringer, 485 So.2d at 275. We agree that these complaints are procedurally barred. Moreover, we see no merit there. For example, Stringer complains about a statement the prosecutor made during closing, but the trial court did all that it was requested to do by sustaining the defense counsel's objection. If the introduction of the photographs and comments about them and the polygraph test were improper under any law, there was clearly no prejudice to Stringer's substantial rights. See Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987). As for the contention that the prosecutor misled the jury into believing that the decision on Stringer's sentence rested with appellate judges rather than with them, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), Stringer points to two statements made during voir dire of prospective jurors: (1) that there are "nine Judges sitting up there on the Supreme Court that I've got to talk to"; and (2) that "[t]he Court has to make a decision and then ultimately other Courts may have to make a decision." Stringer has taken the prosecutor's comments out of context. The prosecutor was explaining to a juror that the law required that his questions be precise, not arguing that higher authorities substituted their discretion for that of the jury on the matter of punishment. The statements would not lessen the jury's sense of responsibility in considering the death sentence.

III. Jury Instructions

Stringer asserts several points of error based on the trial court's instructions to the jury.

A. Life Option

Stringer contends that the trial court not only omitted necessary language from the instructions, but also included language "which would have misled the jury about whether mercy could be extended to the appellant." Stringer failed to raise this point before the district court and we need not address it. See Willie v. Maggio, 737 F.2d 1372, 1387-88 n. 20 (5th Cir.), cert. denied, 469 U.S. 1002, 105 S.Ct. 415, 83 L.Ed.2d 342 (1984). Moreover, the trial court's charge may not be construed as Stringer argues.

The trial court instructed the jury that it could return a life sentence if it found no aggravating circumstances or if it failed to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. ¹ In order to impose the death penalty, the jury was instructed that it must find both that the aggravating circumstances outweighed the mitigating circumstances and that the death penalty should be imposed. Furthermore, the jury was told that the defendant would be sentenced to life imprisonment if they could not agree on punishment. These instructions did not make the death penalty mandatory. See Edwards v. Scroggy, 849 F.2d 204, 213 (5th Cir.1988) (citing Edwards v. Thigpen, 595 F.Supp. 1271, 1286 (S.D.Miss.1984)).

Stringer next complains that, as in Mills v. Maryland, --- U.S. ----, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the trial court erred in instructing the jury that it must unanimously find mitigating circumstances before it might weigh them against aggravating circumstances. The result of such an instruction, Stringer alleges, is that the sentencing phase of the trial became subject to the possibility of a completely arbitrary decision to impose death because one juror could prevent all other jurors from considering a particular mitigating circumstance.

In Mills, the Supreme Court considered the propriety of a verdict form submitted to a jury in a Maryland state court and concluded that "there is a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Mills, 108 S.Ct. at 1870. In vacating the judgment which sustained the imposition of the death penalty, the Court focused on the specific instructions given in that particular case.

Although the trial court undoubtedly added "unanimously" by oversight as the third word in the instructions quoted below, ² a reading of the entire charge would not have led the jurors to think they were compelled to ignore mitigating circumstances (unless found unanimously) in determining an appropriate sentence for Stringer. The instructions given did not restrict the jury's right and power to consider the appropriateness of the death penalty even after it found that the aggravating circumstances outweighed the mitigating circumstances.

B. Mitigating Circumstances

Stringer claims that the trial court's instructions improperly restricted the jury's consideration of mitigating circumstances in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The trial court instructed the jury that it could consider as mitigating, among other things, "any and all other matters, facts or circumstances, or combination of circumstances surrounding the defendant's life, character or record or any circumstance(s) of the offense brought before you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the defendant or which reasonably mitigate against imposition of the death penalty." Under this instruction, Stringer's attorney was free to argue and the jury was free to consider whatever mitigating evidence was raised.

C. Aggravating Circumstances

Relying on Maynard v. Cartwright, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), Stringer asserts that his death sentence should be set aside since the trial court failed to define the unconstitutionally overbroad "especially heinous, atrocious, and cruel" aggravating circumstance. The State maintains that our decision in Edwards v. Scroggy, 849 F.2d 204 (5th Cir.1988), forecloses Stringer's argument. In Edwards, the...