Barnes v. Johnson
| Decision Date | 09 November 1998 |
| Docket Number | No. 98-20504,98-20504 |
| Parties | Willis Jay BARNES, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tom Alan Cunningham, Cunningham, Darlow, Zook & Chapoton, Houston, TX, Raoul Dieter Schonemann, University of Texas School of Law, Austin, TX, for Petitioner-Appellant.
Delane T. Hendrix, Austin, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before DAVIS, DUHE, and PARKER, Circuit Judges.
Willis Jay Barnes, a Texas death row inmate, seeks a certificate of appealability ("COA") to challenge the district court's denial of his petition for writ of habeas corpus. For the reasons that follow, we deny Barnes's application for a COA.
The district court below provided an in-depth and complete description of the facts. We recount the facts only as necessary for our analysis.
The body of eighty-four-year-old Helen Greb was found in her home in Houston, Texas on February 14, 1988. Her nude body was badly bruised and she had been sexually assaulted, probably with a bottle. Her ribs and back were broken and she had been manually strangled. The cause of death was "asphyxia due to manual strangulation and compression of the chest."
A kitchen window in Ms. Greb's house had been pried open and the telephone wire outside the house had been cut. A second window at the back of the house had been opened and the screen pried loose. There was a footprint from a tennis shoe in the kitchen sink below the kitchen window. Police determined that a television set and two firearms were missing from the house.
The Houston Police located these missing items in the possession of Robert Glenn "Pokey" Davis, a known dealer in stolen property and a police informant. Davis told the police that he had received the stolen items from Willis Jay Barnes. On February 17, 1998, an arrest warrant for Barnes was issued charging him with theft by receiving, a misdemeanor offense. Barnes was arrested the same day by Sergeant David E. Calhoun of the City of Houston Police Department, the primary investigator of Ms. Greb's murder. Calhoun and his partner, Sergeant Robert Parish, handcuffed Barnes and read him his Miranda rights. Barnes indicated that he understood his rights and had no questions. Barnes was told only that he was under arrest for possession of stolen property, not that he was a capital murder suspect.
At approximately 6 pm, Calhoun brought Barnes into a police interview room, where he was again read his Miranda rights. At the pretrial suppression hearing, Barnes testified that Calhoun initially told him that a woman was dead and Calhoun asked whether Barnes knew anything about her. Barnes also testified that Calhoun stated that police had recovered skin fragments from the dead woman's fingernails and had taken a shoe print from the home that would match Barnes's shoes. Calhoun, however, did not directly tell Barnes that he was a murder suspect.
At approximately 8 pm, after two hours of interrogation, Barnes agreed to give a written statement (the "first statement") stating that he had entered Ms. Greb's house through an open door, had found the house already ransacked, and had stolen the television and the two firearms. The statement was made on a "statement of a person in custody" form, which includes Miranda warnings on the top of every page. Calhoun reviewed these warnings with Barnes, and Barnes placed his initials next to each of the warnings. Barnes waived his Miranda rights and initialed this waiver on the statement form.
After the first statement was signed, around 10 pm, Sergeant J.W. Belk, who had witnessed the signing, remained alone with Barnes in the interview room. Belk had participated in a 1984 investigation of Barnes for burglary involving the aggravated sexual assault of an elderly woman. That investigation had resulted in Barnes pleading guilty to the burglary of four homes. Barnes served approximately three years of his thirty-year sentence and was released from prison in October 1987.
At approximately 10:30 pm, Sergeant Parish entered the interview room to get permission to search Barnes's car. Barnes gave this permission. In addition, upon request, Barnes removed his shirt. He had scratches on his chest, on both arms, and under his left eye. The police took Barnes's clothes and provided him with a trusty uniform. They also took Barnes's shoes as evidence. Barnes was not given socks or shoes because the police were unable to find any. Calhoun testified that the next morning he brought in a pair of his own shoes and a pair of socks for Barnes.
Around midnight, Calhoun showed Barnes one of the stolen firearms and a picture of the television set. He asked Barnes if he would give a written statement identifying the items. Barnes agreed to give such a statement. Calhoun again reviewed the Miranda warnings with Barnes, who stated that he understood them. Calhoun began to type the statement (the "second statement") at approximately half past midnight. At approximately 1 am, Barnes read the statement, made and initialed some changes, and signed the statement in the presence of Belk and Parish. In this statement, Barnes admitted entering the house and stealing the firearms and television. However, he denied killing Greb.
After signing the second statement, Barnes was taken to the city jail. He was placed in a holding cell and then talked to a bailbondsman. Barnes slept from approximately 2:30 am to 4:30 am, when he was awakened for breakfast. After breakfast, he slept from approximately 5:10 am to 8:00 am. Barnes testified that he slept for a total of approximately five hours.
At approximately 8:30 am, February 18, 1988, Sergeant R.L. Doyle and Sergeant Sharon Durham brought Barnes to court. Barnes was dressed in a jail uniform and was still barefoot. Barnes was brought before Judge Michael McSpadden. Barnes was informed that he was charged with the offense of "burglary of a habitation with intent to commit murder," a first-degree felony charge. Judge McSpadden also informed Barnes of his Miranda rights. As he stated each right, Judge McSpadden asked Barnes if he understood the right, and Barnes stated "Yes."
Judge McSpadden also questioned Barnes about his education. Barnes stated that he had received his G.E.D. and had twenty-nine hours of college credit. He also stated that he had failed high school English, but had taken college English and had received a D. Judge McSpadden noted Barnes's answers and observed that Barnes appeared to understand everything stated to him. After the hearing before Judge McSpadden, Barnes was returned to the city jail, where he was given shoes and socks. During both the journey to court and the return trip, Barnes was briefly outside barefoot in rainy and chilly weather.
Beginning at approximately 9:45 am, Calhoun interrogated Barnes further. Before commencing interrogation, he read Barnes his Miranda rights. Barnes stated that he had already been given his rights by Judge McSpadden and that he understood them. During this interrogation, Barnes again told Calhoun that he had stolen the television and firearms, but continued to deny seeing anyone in the house. At approximately 11:45 am, Calhoun ceased the interrogation and left the interview room.
A few minutes later, Sergeant Belk stopped by the interview room and asked Barnes if he needed anything. Belk then accompanied Barnes to the restroom. While returning from the restroom, Barnes indicated that he wanted to talk to Belk. Back inside the interview room, Barnes brought out a copy of the written Miranda warnings from Judge McSpadden and read out loud the charge that was listed there, "burglary of a habitation with intent to commit murder." Barnes then told Belk,
Barnes explained that he had entered the house through the kitchen window, intending to take property and money. Greb had confronted him with mace and a rifle. She sprayed mace at him and they struggled. Barnes overcame Greb and left her lying on the floor. Barnes stated that after he had grabbed some cash, the television, and the firearms, he realized that Greb was not breathing and he attempted "mouth to mouth resperation." When this was unsuccessful, he covered her body and fled the scene.
Belk requested that Barnes repeat the events that took place so that Belk could type another statement. Belk again repeated Barnes's Miranda rights. Barnes again stated that he waived them. Belk began typing this statement (the "third statement") just after noon. When he finished, Barnes made and initialed two minor changes and then signed the statement. At the pretrial suppression hearing, Barnes testified that his interrogators did not promise anything in exchange for his statement and did not force, coerce, or compel Barnes to make the statement. After Barnes made his third written statement, Calhoun obtained a warrant for capital murder.
Around 2 pm, Belk asked Barnes whether he would be willing to repeat his third statement on videotape. Barnes stated that he would. Barnes, Belk, and the camera operator were present in the videotape interview room when Barnes gave his videotaped statement (the "fourth statement"). Belk began by reading Barnes questions from a video statement checklist form. These questions included Barnes's Miranda rights and whether he understood and waived each right. With one exception that is discussed in-depth in Section II.B, Barnes stated that he understood and waived each right. Barnes then gave a statement on videotape that was consistent with his third written statement.
On June 22, 1988, Barnes was indicted for capital murder. Barnes's trial counsel moved that all of Barnes's statements be...
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