Lincecum v. Collins

Decision Date07 April 1992
Docket NumberNo. 90-2142,90-2142
Citation958 F.2d 1271
PartiesKavin Wayne LINCECUM, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Christopher H. Kallaher, Michael J. Gonring, Milwaukee, Wis. (Court-appointed), for petitioner-appellant.

Joan C. Barton, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before KING, JOLLY, and JONES, Circuit Judges.

KING, Circuit Judge:

Kavin Wayne Lincecum, a Texas prisoner under a sentence of death, appeals the dismissal of his petition for a writ of habeas corpus. Although Lincecum raised 18 claims in the district court, his appeal involves only three issues: (1) whether the state trial court erred in refusing to give his requested instruction on the lesser included offenses of murder and voluntary manslaughter; (2) whether the district court erred in denying his motion for an evidentiary hearing on the claims that (a) his trial counsel rendered constitutionally ineffective assistance and (b) the Texas death penalty statute is unconstitutional because no rational jury can answer the second special issue relating to future dangerousness; and (3) whether the Texas capital sentencing statute was unconstitutionally applied because the jury had no vehicle through which to consider his mitigating evidence of a troubled childhood and emotional difficulties around the time of the crime. Having carefully considered all three issues, we affirm the denial of habeas relief.

I. FACTS AND PROCEDURAL HISTORY

Lincecum was convicted of capital murder in a Texas court for killing Kathy Ann Coppedge during the course of a kidnapping, robbery and attempted sexual assault. The jury answered the three special issues in the affirmative and sentenced Lincecum to death. The facts are fully presented in the opinion of the Texas Court of Criminal Appeals affirming Lincecum's conviction on direct appeal, Lincecum v. State, 736 S.W.2d 673 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988). The facts we recite here are largely taken from the only account of the crime, Lincecum's confession, 1 and are presented only to the extent necessary for an understanding of the issues presented in this appeal.

On August 11, 1985, Lincecum encountered Kathy Ann Coppedge and her son, Casey, at a parking lot across the street from a church in Brenham. As Kathy and Casey entered Kathy's car, Lincecum forced his way in and drove off toward the town of Burton. After driving a few miles, he turned off on a gravel road and stopped. He went through Kathy's purse and took her money. He then told Casey to get in the back seat, and, when Casey asked him not to hurt his mother, Lincecum replied that he would not.

Lincecum ordered Kathy out of the car and told her to take off her clothes. They got back in the car, and Kathy picked up Lincecum's knife and stabbed him in the left side. Lincecum retrieved the knife, folded it up, and proceeded to choke her. 2 He then bound Casey's hands with the strap from Kathy's purse and placed Casey in the trunk. He eventually bound Kathy's hands and placed her in the trunk as well. He drove the car to another location and abandoned it, taking Kathy's rings and watch. The evidence showed that the temperature that day exceeded 100 degrees. Kathy and Casey Coppedge were found dead in the trunk of the car later that night.

The evidence showed that Kathy most likely died as a result of strangulation rather than being placed in the trunk, while Casey probably was still alive when placed in the trunk. Aurelio Espinola, the chief deputy medical examiner for Harris County who testified concerning the post mortem examination, testified that the ligature marks around Kathy's neck indicated that she probably was strangled for a long period of time. He estimated that she would have lost consciousness after about three minutes, but that the ligature probably was held around her neck for approximately three more minutes.

Two persons testified at trial that they saw a black man drive off from the parking lot in a blue car with a woman, and both testified that they heard cries for help. There also was testimony from a state forensic serologist that Kathy Coppedge's dress had male semen stains all over the inside of the skirt part of the dress. Testing disclosed that a person having Lincecum's blood type could have deposited the semen on the dress. When Kathy was found, her dress and bra were ripped, and her panties were found beneath her legs.

Lincecum did not offer any evidence at the punishment phase of the trial. During the guilt phase, however, his aunt, Eula Belle Moore, testified that in June of 1985 she discussed Lincecum's state of mind with Lincecum's parole officer, Mary Kathryn Hebert. Moore had been concerned that Lincecum was not talking much, and asked Hebert whether she could encourage Lincecum to see a psychiatrist. She told Hebert that she thought Lincecum "was disturbed ... he was down under and I could see he was very quiet. I felt he needed to talk to somebody." Later, Moore testified that she thought Lincecum "felt that his momma didn't care for him." Hebert confirmed the discussions with Moore about Lincecum's welfare. Reading from her notes, she stated that Moore had told her that Lincecum did not want to talk and that Lincecum's problems may have stemmed from feeling unloved by his mother.

Lincecum's conviction and sentence were affirmed on appeal. Lincecum v. State, 736 S.W.2d 673 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988). Lincecum then sought state post-conviction relief in the 23rd Judicial District of Brazoria County, Texas, raising many of the same claims he later raised in his federal petition. The state court entered findings of fact and conclusions of law and denied the petition on December 9, 1988. The Texas Court of Criminal Appeals affirmed. On January 12, 1989, six days before his scheduled execution, Lincecum filed the instant petition for habeas corpus relief in the district court. 3 The district court granted a stay of execution. On December 6, 1989, the district court denied relief on all claims and vacated the stay of execution. After Lincecum's request for a certificate of probable cause was granted, we reinstated the stay of execution pending final disposition of the appeal. After the original briefing was completed, we requested supplemental briefing on the applicability, if any, of our recent decision in Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc) (addressing mitigating evidence and the Texas capital sentencing statute), on the case. We are now prepared to render a decision.

II. DISCUSSION
A. Failure to Instruct on Lesser Included Offenses

At trial, Lincecum requested instructions on the lesser included offenses of murder and voluntary manslaughter. The trial judge refused, instructing the jury only on the offense of capital murder. Lincecum argues that the failure to instruct on the lesser included offenses violated his rights under the Eighth and Fourteenth Amendments.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court invalidated that aspect of the Alabama capital murder statute which prohibited the trial judge from giving an instruction on a lesser included offense of capital murder. The Court's central concern was that the unavailability of a lesser included offense instruction would increase the risk of an unreliable adjudication of guilt, a risk that cannot be tolerated in a capital case. Id. at 637-38, 100 S.Ct. at 2389-90. The Court indicated that the basic rule extant in the states on when a defendant is entitled to a lesser included offense instruction would comport with federal due process requirements. This standard was expressed as "a defendant is entitled to a lesser included offense instruction where the evidence warrants it." Id. at 636 & n. 12, 100 S.Ct. at 2389 & n. 12 (citing, inter alia, Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975)); see Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) (Beck stands for the proposition that juries in capital cases must have the opportunity to consider a lesser included noncapital offense whenever the evidence would have supported such a verdict). This standard continues to apply in Texas. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986) (instruction must be given if there is "some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense"); Lincecum, 736 S.W.2d at 678. Although Beck itself spoke only to a statute under which the judge could not give the requested instruction, we have held that its rationale applies equally to cases in which a trial judge refuses to give an instruction which is available under state law. Cordova v. Lynaugh, 838 F.2d 764, 767 & n. 2 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932 (1988); Reddix v. Thigpen, 805 F.2d 506, 511-12 (5th Cir.1986).

In federal trials, "a lesser included offense instruction should be given 'if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.' " Hopper, 456 U.S. at 612, 102 S.Ct. at 2053 (citing Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)). We recognized in Cordova that the standard described in Beck and the federal standard are equivalent. 838 F.2d at 767. Thus, the question is whether a rational jury could have convicted Lincecum on the lesser included offense of murder or voluntary manslaughter yet acquitted him on the offense of capital murder.

1. Murder

Lincecum was convicted for the offense described in section (a)(2) of the...

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