Hill v. Black

• Decision Date: 10 October 1989
• Docket Number: No. 87-4922,87-4922
• Citation: 887 F.2d 513
• Parties: Alvin HILL, Petitioner-Appellee Cross-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 513

887 F.2d 513

Alvin HILL, Petitioner-Appellee Cross-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants Cross-Appellees.

No. 87-4922.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1989.

Rehearing and Rehearing En Banc Denied Dec. 12, 1989.

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Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellants cross-appellees.

James P. Kreindler, Daniel M. Kolko, New York City, and Percy Stanfield, Jackson, Miss., for petitioner-appellee cross-appellant.

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

Before CLARK, Chief Judge, and POLITZ and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

I.

On November 26, 1980, a jury of the Circuit Court of Desoto County, Mississippi, found Alvin Hill guilty of capital murder and sentenced him to death. The Supreme Court of Mississippi upheld both the verdict and the sentence on direct appeal. Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983). Two subsequent petitions to the Mississippi Supreme Court for Writ of Error Coram Nobis were denied. In re Alvin Hill, 467 So.2d 669 (Miss.1985); In re Alvin Hill, 460 So.2d 792 (Miss.1984). Hill then petitioned the United States District Court for the Northern District of Mississippi for a Writ of Habeas Corpus. The district court granted the writ on condition that it would become operative in 180 days unless within that time the State of Mississippi retried the sentencing phase of Hill's conviction and sentence proceedings. 667 F.Supp. 314. The district court denied the writ as it pertained to the jury's guilty verdict. The State of Mississippi appealed the conditional writ to this court. We withheld decision of this appeal pending resolution of a principal issue in Sawyer v. Butler, 881 F.2d 1273 (5th Cir.1989) (en banc).

For the reasons detailed below, we reverse the district court's conditional grant of the writ as to sentencing and affirm its denial of the writ as to guilt.

II.

On July 12, 1979, a truck owned by American Freight Lines was hijacked in Desoto County, Mississippi, and its driver, Robert Lee Watkins, was shot to death. Four days later a similar incident occurred in adjoining Tunica County, Mississippi, involving the hijacking of a packing company truck and the robbery of its driver. An investigation into these incidents ensued.

Between 12:00 p.m. and 4:00 p.m. on July 18, a Special Agent of the F.B.I. searched Alvin Hill's pick-up truck and found a U-Haul rental contract for a truck with Maryland license plate number M91196. The agent testified that Hill consented to this search at about 5:00 p.m. that evening, after the search had taken place. Another witness testified that he had seen a U-Haul van with Maryland license number M91196 parked near the hijacked American Freight Lines truck on July 12.

On or about July 20, 1979, Hill and Sammy Lee Hampton were arrested for the Tunica County hijacking and robbery. On July 19, 20, and 25, another F.B.I. Special Agent questioned Hill concerning the Desoto County hijacking. That agent informed Hill that a statement made by Hampton implicated Hill in that hijacking. On August 17, investigators informed Hill that Desoto County deputy sheriffs had found Watkins' body. On the next day, while still in custody for the Tunica County hijacking, Hill confessed to the Desoto County hijacking and to the robbery and murder of Watkins. After initially stating that he had thrown the murder weapon into the Coldwater River, Hill later told officials that the pistol was in the possession of a man who lived in Memphis. Memphis police officers retrieved the pistol from the man Hill identified, who stated he had loaned the weapon to Hill. Hill's confession was ruled involuntary and inadmissible. The trial court, however, allowed the murder weapon into evidence.

After pleading guilty to the Tunica County hijacking, Hill was sentenced to 20 years imprisonment, and Hampton was sentenced to 17 years. Hill, Laverne Milam and Gregory Tucker were indicted for the capital murder of Watkins under Miss.Code Ann. 97-3-19(2)(e). Tucker pled guilty to manslaughter and testified against Hill. The jury returned a verdict of guilty and unanimously recommended the death penalty.

III.

Hill alleged twenty-three counts of error in his habeas corpus petition. On appeal, the State of Mississippi challenges the three allegations of error on which the district court based its conditional grant of habeas corpus. On cross-appeal, Hill challenges the district court's denial of his remaining allegations of error.

A. The Application of the Mississippi Contemporaneous Objection Rule

Before the Mississippi Supreme Court and in his writ for federal habeas corpus, Hill alleged that the prosecution's examination of Tucker, Hill's co-defendant, concerning Tucker's conviction of manslaughter in the Desoto County hijacking and the prosecution's use of a "last word" argument in closing were each reversible errors. The prosecutor told the jury that their decision on Hill's verdict and sentence would not be the "last word" on the matter because the decision would be appealed. Defense counsel did not object to this argument. Nor did counsel object to Tucker's testimony. Rather, on cross-examination counsel developed the details of Tucker's plea bargain and manslaughter conviction to demonstrate that his crucial testimony against Hill should be viewed as untrustworthy by the jury.

The Mississippi Supreme Court decided that because Hill raised no objection to either of these prosecution activities at trial, he was barred from alleging on appeal that they constituted error. Hill v. State, 432 So.2d 427, 438-39. The district court's grant of habeas corpus relief on these two grounds was based on the conclusion that "the contemporaneous objection rule had not been consistently applied in death penalty criminal cases in Mississippi as late as 1984 and that application of this procedural rule prior to this time in Mississippi death penalty cases can only be characterized as the exception rather than the rule." Hill v. Thigpen, 667 F.Supp. 314 (N.D.Miss.1987). We disagree.

A survey of the cases in which the Mississippi Supreme Court either applied the contemporaneous objection rule or suspended the rule as an "act of grace" in particular cases, Bass v. Estelle, 705 F.2d 121 (5th Cir.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983), demonstrates that the Mississippi rule has been "consistently or regularly applied" as required by Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) and Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964). An analysis of the complete jurisprudence of Mississippi reveals that the Supreme Court regularly applies the contemporaneous objection rule to the cases before it. That Court also consistently follows a policy of disregarding the rule when plain error is involved. Thus, the Court often reviews the merits of errors to which no underlying objection was made at trial if the nature of the case and the nature of the alleged error combined or separately could affect fundamental justice. Voyles v. State, 362 So.2d 1236 (Miss.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2184, 60 L.Ed.2d 1059 (1979). The Court is more inclined to suspend the rule in capital cases and in appeals asserting erroneous jury instructions, involuntary statements or confessions, or highly prejudicial remarks by the prosecution. Smith v. State, 419 So.2d 563 (Miss.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983); Gray v. State, 375 So.2d 994 (Miss.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980); Culberson v. State, 379 So.2d 499 (Miss.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980); Myers v. State, 268 So.2d 353 (Miss.1972). Errors which, if the defendant's allegations are true, constitute plain error are reviewed even though they could properly be dismissed under the contemporaneous objection rule.

This plain error exception to universal application of the procedural bar does not render the application of the rule haphazard or arbitrary. Rather, the case law reveals that the rule and exception are applied in a regular and consistent fashion. Johnson, 108 S.Ct. at 1987; Barr, 378 U.S. at 149, 84 S.Ct. at 1736. "A state may insist upon a contemporaneous objection. And, ordinarily, a federal habeas court is bound by that decision and cannot reach claims of error found by the state to have been waived." Dugger v. Adams, --- U.S. ----, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989). Here, the Mississippi Supreme Court observed its established practice when it decided not to review the merits of Hill's allegations of error in the prosecution's use of co-conspirator Tucker's testimony and in the prosecutor's "last word" closing argument because plain error was not involved.

(1) The Co-Conspirator's Testimony

The testimony of Tucker that he had been convicted of manslaughter in the Desoto County hijacking would usually constitute error in Mississippi. Hill v. State, 432 So.2d at 439. Defense counsel, however, did not merely choose not to object to the testimony. He cross-examined Tucker and made use of his testimony to show the jury that "a radically different treatment had been extended by the state to Tucker than that proposed for Hill. The defense sought mileage out of this concession in cross-examination." Hill v. State, 432 So.2d at 439. Having used the testimony extensively for his own purposes, Hill cannot complain on appeal that introduction of the evidence was plain or even reversible error.

Hill also argued before the district court that the introduction of evidence pertaining to Tucker's manslaughter conviction without an accompanying explanation to the jury of the plea bargain...