Cox v. Norris

• Decision Date: 05 February 1998
• Docket Number: No. 97-1280,97-1280
• Citation: 133 F.3d 565
• Parties: Johnie COX, Appellant, v. Larry NORRIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 565

133 F.3d 565

Johnie COX, Appellant, v. Larry NORRIS, Appellee.

No. 97-1280.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1997.

Decided Dec. 29, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 5, 1998.

E. Alvin Schay, Little Rock, AR, for Appellant.

Joseph Vincent Svoboda, Little Rock, AR, for Appellee.

Before McMILLIAN, FLOYD R. GIBSON and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Arkansas death-row inmate Johnie Cox seeks a certificate of appealability of his 28 U.S.C. § 2254 habeas corpus action. Cox has been sentenced to death for the 1989 murders of Marie Sullens, Margaret Brown, and William Brown. We deny the application.

I. BACKGROUND

On November 1, 1989, Cox went to Marie Sullens's apartment to kill her. He had chosen that date, All Saints Day, because he thought she would go to heaven if she died on that day. Sullens was married to Cox's grandfather. He later told police that he had killed Sullens because he suspected that she was trying to kill his grandfather.

When he arrived at her apartment, he found that Margaret and William Brown were there, too. Shortly after he arrived, Cox threatened William Brown with a .22 pistol and ordered him to bind Sullens and Margaret Brown with duct tape. Cox then tied up William and bound all three together at the neck. He first tried to sedate the three victims with sleeping medication. Because the drug took too long to take effect he stabbed the victims and also attempted to shoot Margaret Brown. Later, unhappy with the delayed effect of the stabbing, Cox attempted to strangle the three victims and then set fire to the house. All three individuals died as a result of stab wounds and injuries from the fire. Margaret Brown died before the fire as a result of fourteen stab wounds and strangulation. William Brown had wires around his neck and two stab wounds, but died in the fire. Sullens had six stab wounds, some penetrating her lungs, but also died in the fire.

Cox was arrested and confessed in detail, in writing and on videotape, to the murders. He was tried and sentenced to death in a bifurcated proceeding. After trial, he filed a motion for a new trial, alleging that his trial counsel was ineffective. After a hearing, the trial court denied the motion. He appealed both his conviction and the denial of his motion for a new trial to the Arkansas Supreme Court. He raised essentially the same issues in state court that he raises here. The Arkansas Supreme Court denied relief. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

He then filed a petition for habeas corpus relief in federal district court. After two hearings, ¹ the district court denied the petition. Cox v. Norris, No. PB-C-93-625, Transcript of Motions Hearing (E.D.Ark. October 22, 1996); Transcript of Evidentiary Hearing at (E.D.Ark. Nov. 18, 1996); Order (E.D.Ark. Nov. 22, 1996).

II. DISCUSSION

This matter is before us on an application for a certificate of appealability pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") which became effective on April 24, 1996. ² Cox first applied to the district court for the certificate. The district court denied Cox's application under the assumption that it lacked authority to consider such motions. Cox v. Norris, No. PB-C-93-625, Order (E.D.Ark. January 23, 1997). However, district courts, as well as appeals courts, have the authority to issue certificates of appealability under the AEDPA. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.1997). Having reviewed the entire record, we see no reason to go through the unnecessary step of remanding to the district court and we will treat Cox's notice of appeal as an application for a certificate of appealability addressed to the judges of this Court. See id. at 522.

To grant a certificate of appealability, we must find a substantial showing of the denial of a federal constitutional right. See id. A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.1994). With those standards in mind, we find that Cox's application for a certificate of appealability should be denied.

A. Continuance

Cox first claims that he was denied his right to due process and his Sixth Amendment right to a fair jury as a result of the trial court's refusal to grant his request for a continuance because of excessive publicity about the death penalty. The first person to be executed in Arkansas since 1964 had been put to death a week before Cox's trial. Another death row inmate was executed on the evening of the first day of Cox's trial. Both executions received considerable coverage in the media. Cox contends that the publicity about the death penalty in connection with the executions made it impossible for the court to assemble a fair and impartial jury. Although the trial court denied the motion to continue, one hundred extra people were included in the jury pool to ensure that there would be enough potential jurors who were not tainted by the publicity.

Both the Arkansas Supreme Court and the federal district court found that there was considerable publicity concerning the death penalty at the time of the executions. The determinative inquiry, however, is not the amount of publicity, but the effect of the publicity on prospective jurors. See Orsini v. Wallace, 913 F.2d 474, 482 (8th Cir.1990). The jurors need not be totally ignorant of the facts and issues involved; it is sufficient if a juror can lay aside his or her impression or opinion and render a verdict based on the evidence presented in court. See Perry v. Lockhart, 871 F.2d 1384, 1390 (8th Cir.1989).

As a federal court conducting habeas corpus review, we must defer to the state trial court's determination that the jury was not prejudiced by pretrial publicity. See Swindler v. Lockhart, 885 F.2d 1342, 1347 (8th Cir.1989). This determination is essentially a factual conclusion entitled to a presumption of correctness unless the state court hearing was procedurally defective or unless the federal court, on considering the record as a whole concludes that the factual determination is not fairly supported. See Perry, 871 F.2d at 1390. Thus, the determination can only be overturned for "manifest error." Swindler, 885 F.2d at 1347; see also Hill v. Lockhart, 28 F.3d 832, 848 (8th Cir.1994) (noting little practical difference between "manifest error" and "fairly supported by the record" standards).

Our review of the record shows that the state court's determination is fairly supported and thus we can find no manifest error. ³ Both the trial court and counsel carefully questioned potential jurors about the publicity at individual, sequestered voir dire. Extra jurors had been assembled, as indicated. We have reviewed the record and find that the voir dire assured that the jurors were not affected by the publicity. In addition, we find that the publicity surrounding the executions could cut both ways; that is, a potential juror could be equally swayed against the death penalty as for the death penalty by the publicity.

B. Constitutionality of Statute

Cox's next contention is that the Arkansas capital murder statute is unconstitutional. He first argues that it impermissibly fails to narrow the class of persons who are death eligible. We rejected this argument with regard to the Arkansas capital murder statute in Perry v. Lockhart, 871 F.2d at 1392-93. In Perry, we applied the standards enunciated in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), to the Arkansas statute. Perry, 871 F.2d at 1392-93. A capital punishment scheme must genuinely narrow the class of persons eligible for the death penalty and must justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. See id. 871 F.2d at 1392. This requirement may be satisfied in two ways--either a state legislature may explicitly restrict the definition of capital murder, or a jury may perform the narrowing function during the penalty phase by ascertaining whether any aggravating circumstances exist. See id.

The Arkansas scheme satisfies these requirements. Cox was convicted under a broad definition of a capital offense-- "[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person"--that differs from the first-degree murder offense in that it requires premeditated and deliberated purpose as opposed to "a purpose of causing the death" or "knowingly caus[ing] the death of a person under the age of fourteen. Compare Ark.Code Ann. § 5-10-101(a)(4) (capital murder) with Ark.Code Ann. § 5-10-102(a)(2)and (3) (first degree murder). Moreover, the class is narrowed by the application of aggravating circumstances by the jury. Ark.Code Ann. § 5-4-604(1)-(9); Perry, 871 F.2d at 1393. Arkansas also requires that the jury find that the aggravating circumstance or circumstances outweigh any mitigating factors and justify a sentence of death beyond a reasonable doubt. See Ark.Code Ann. § 5-4-603(a)(1)-(3); Perry, 871 F.2d at 1393. Accordingly, we find that the Arkansas statute satisfies constitutional requirements.

Cox also asserts that the Arkansas capital murder statute violates the Eighth Amendment because it does not give the jury the option of mercy. The statute contains the mandatory language that the jury "shall impose a sentence of death" if it finds beyond a reasonable doubt that aggravating factors exist and outweigh all mitigating circumstances found to exist. Ark.Code Ann. § 5-4-603(a). Death penalty statutes having some "mandatory" aspects have been upheld as constitutional. See, e.g., Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (finding constitutional death penalty statutes that contained mandatory language but that...