904 F.2d 950 (5th Cir. 1990), 88-4790, Smith v. Black

Docket Nº:88-4790.
Citation:904 F.2d 950
Party Name:Willie Albert SMITH, Petitioner-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.
Case Date:June 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 950

904 F.2d 950 (5th Cir. 1990)

Willie Albert SMITH, Petitioner-Appellant,

v.

Lee Roy BLACK, Commissioner, Mississippi Department of

Corrections, et al., Respondents-Appellees.

No. 88-4790.

United States Court of Appeals, Fifth Circuit

June 26, 1990

Rehearing and Rehearing En Banc

Denied Aug. 24, 1990.

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Robert J. Brantley, Jr., Kenneth J. Rose, Jackson, Miss., David E. Massengill, John J. Kenney, Simpson, Thacher & Bartlett, New York City, for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

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

Before POLITZ, KING, and SMITH, Circuit Judges.

KING, Circuit Judge:

Willie Albert Smith appeals the district court's denial of his petition for a writ of habeas corpus from the judgment of conviction and death sentence entered against him on July 30, 1981, in the Circuit Court of the First Judicial Circuit of Hinds County, Mississippi. Smith was convicted of the murder of a convenience store clerk during the course of a robbery and was sentenced to death. Smith's conviction rests upon the eyewitness testimony of two men who claimed to have seen Smith abducting the clerk and upon circumstantial evidence which the Supreme Court of Mississippi fairly described as "overwhelming." Smith v. State, 492 So.2d 260, 267 (Miss.1986).

Among the many claims asserted by Smith in his petition for habeas relief are four that are particularly troubling. The first two relate to the testimony of the eyewitnesses to the abduction. The Mississippi Supreme Court found, by clear and convincing evidence, that the witnesses had perjured themselves at trial in identifying Smith as the assailant, id. at 261, 264, and Smith claims that his conviction based on their testimony violates the due process clause of the fourteenth amendment. Smith argues further that his ability to impeach the two eyewitnesses at trial was fatally impaired by the prosecution's failure to disclose police reports containing contemporaneous disavowals by the witnesses of their ability to identify the assailant. Third, Smith argues that his sentence rests in part on evidence of rape properly excluded at the guilt phase but admitted at sentencing, and that this evidence, combined with the prosecution's repeated allegation in closing arguments that Smith raped the murder victim, violated his right to due process under the fourteenth amendment. Finally, Smith argues that his sentence was based in part on an aggravating circumstance, that the murder was "especially heinous, atrocious or cruel," which was unconstitutional at the time his conviction became final. For the reasons set forth below, we affirm the judgment of the district court denying habeas relief based on these claims and on a host of other claims that Smith raises with respect to his conviction and sentence.

I.

The nature of Smith's claims requires a detailed understanding of the crime, the trial, and the post-trial proceedings. Shirley Roberts, the manager of a convenience store in Jackson, Mississippi, was robbed, abducted, and murdered after she attempted to open the store for business shortly after 5 a.m. one Sunday morning. About 5:30 a.m. Sgt. Oatis of the Jackson Police Department stopped in the convenience store parking lot to use a public phone, and

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was there approached by two men, Kenneth Thomas and James Wells, who asked him if there had been a robbery, explaining that they had a few minutes earlier seen a black man forcing a white woman into a red Pinto. Oatis noticed that the chain used to secure the store door was lying on the pavement in front of the door, and that nearby lay a $20 bill, a set of car keys, and a silver-colored pair of brass knuckles. On the parking lot next to Oatis' patrol car lay a woman's tennis shoe and a pair of eyeglasses with a silver neck chain. Oatis radioed an alarm at 5:40 a.m., and the police rapidly determined that Roberts had been scheduled to open the store that morning and that a car remaining in the lot had belonged to her.

At 6:00 a.m., while Oatis remained in the parking lot, the defendant Smith approached the store driving a red Pinto, but reversed direction by making a U-turn after he noticed the police cars parked there. Oatis observed this maneuver and pursued and stopped Smith. Seeing Smith reach under the right-hand seat of the car, and suspecting a weapon, Oatis looked through the car window and noticed a half-protruding woman's shoe that appeared to be the exact mate of the shoe found in the parking lot. Oatis arrested Smith, and while handcuffing him noticed that one of his hands was stained with blood. A jailor subsequently removed a one-hundred dollar bill from the pants Smith was wearing when arrested. At the time of arrest, Smith denied knowing anything about the woman and refused to discuss the shoe, but agreed to lead the police to Charles MacDonald, the man whose car he had borrowed.

The police were led to MacDonald's room by his mother, where they awoke him from a deep sleep. He explained that Smith had borrowed the car from him at 4:30 that morning after they had returned from a party. The police satisfied themselves that MacDonald was not a likely suspect for the crime, and he led them to Smith's apartment. It was unlocked, and the police entered, fearing for the safety of Roberts. They found her purse and a woman's white sweater on Smith's bed, and on the floor found a lock and key, muddy dress shoes, and a pair of khaki pants stained with mud and blood. In the pants was a one-hundred dollar bill. Mud and leaves were on the floor by the back door and in the kitchen. About fifteen feet behind the apartment house the police found the beginning of a drag trail, which led after approximately fifty yards to a small drainage ditch from which a human ankle protruded. The victim's body lay face down in the water, covered by leaves and sticks.

  1. Guilt Phase

    During opening statements, the prosecution made no reference to eyewitness testimony. Smith's trial counsel conceded that the state possessed "awesome" circumstantial evidence, but emphasized several times that he expected no eyewitness testimony, and that if Thomas testified as an eyewitness he would have to "have changed his story," since he had been unable to identify Smith at a lineup held before trial. Thomas was in fact the first witness called by the state. Thomas testified that he had observed the victim's abduction from approximately thirty feet away while traveling past the convenience store in a car driven by Wells, and that he had been seated on the side of the car closest to the parking lot. He described the sequence of events and the perpetrator's car, a red Pinto, in some detail. Thomas also testified that although he had been initially reluctant to cooperate with the police, he had identified Smith in a lineup conducted by the police the day after the trial. He also testified that he had identified Smith's photograph after viewing five photographs the day before trial, and identified Smith in the courtroom.

    On cross-examination, Thomas re-acknowledged that he was on probation from an armed robbery conviction, and admitted or clarified that he had not identified Smith at the police lineup, that he had told relatives of Smith that he could not identify the man he saw in the parking lot, that he had seen Smith before the day of trial at the suppression hearing, and that the red Pinto had been pointed out to him before trial

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    while it was parked in a police impoundment lot. He explained that he had previously lied in saying that he could not identify Smith because of pressure he had received from his mother and other relatives, and further described the characteristics of the man he saw the morning of the crime.

    Wells testified to substantially the same identification of the perpetrator and the car, though he claimed to see the abduction from approximately ten feet away. On cross-examination, Wells admitted that he could not identify the perpetrator at the time of the incident and had so informed Thomas, that he had told Smith's counsel and several of Smith's relatives that he could not identify the man he saw abduct the victim, that the photographic lineup conducted the day before trial was the first time he had identified Smith to anyone, that he had been told that someone resembling Smith would be in the courtroom, that Smith was easily identifiable in court as the only black sitting with a lawyer and as the only man in a blue jumpsuit, and admitted that he could not identify Smith as the man who had put the victim into the red Pinto. On re-direct, Wells indicated that he had identified Smith at his first opportunity, namely, the photographic lineup the day before trial.

    The state also called as a witness a forensic pathologist, who testified that the victim had been manually strangled to death and that her body bore numerous scratches, abrasions, and bruises, and that her head bore two wounds made by two blows with a blunt instrument. MacDonald testified that Smith had shown him a pair of brass knuckles similar to those found in the parking lot on the evening before the crime was committed and that he had seemed to indicate their presence at the party, and that Smith had not indicated that he had any money that night. Two witnesses testified that the victim had at least one one-hundred dollar bill in her purse during the weekend of the crime, one additionally identifying the keys found in Smith's...

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