Edwards v. Scroggy

• Decision Date: 15 July 1988
• Docket Number: No. 87-4553,87-4553
• Citation: 849 F.2d 204
• Parties: 26 Fed. R. Evid. Serv. 488 Leo E. EDWARDS, Jr., Petitioner-Appellant, v. Gene A. SCROGGY, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 204

849 F.2d 204

26 Fed. R. Evid. Serv. 488

Leo E. EDWARDS, Jr., Petitioner-Appellant, v. Gene A. SCROGGY, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.

No. 87-4553.

United States Court of Appeals Fifth Circuit.

July 15, 1988.

Opinion on Denial of Rehearing and Rehearing En Banc Aug. 17, 1988.

Kenneth J. Rose and Dennis C. Sweet, Jackson, Miss. (court-appointed), Owens & Owens, Jackson, Miss., for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Felicia C. Adams, Asst. Atty. Gen., Jackson, Miss., William S. Boyd, III, Special Counsel, Gulfport, Miss., for respondents-appellees.

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

Before CLARK, Chief Judge, WILLIAMS, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Leo E. Edwards, appeals from the denial of his habeas corpus petition under 28 U.S.C. Sec. 2254. He is under sentence of death on his conviction for murder committed in the course of an armed robbery. Following two thoughtful opinions dealing with Edwards' habeas claims, see Edwards v. Thigpen, 595 F.Supp. 1271 (S.D.Miss.1984) and 682 F.Supp. 1374 (S.D.Miss. 1987), the district court granted a stay of execution and a certificate of probable cause to appeal. After thorough consideration of petitioner's contentions, we affirm the denial of the writ of habeas corpus and vacate the stay of execution.

I.

The petitioner was convicted in the First Judicial District of the Seventh Circuit Court District of Mississippi of capital murder, and pursuant to the jury's recommendation he was sentenced to be executed. The conviction and sentence were affirmed by the Mississippi Supreme Court. Edwards v. State, 413 So.2d 1007 (Miss.), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Appellant's application for leave to file a petition for writ of error coram nobis in the Mississippi Supreme Court was denied. Edwards v. Thigpen, 433 So.2d 906 (Miss.1983).

II.

Edwards was convicted for the June 14, 1980 murder of Lindsey Don Dixon, a convenience store clerk in Jackson, Mississippi. The state introduced evidence from which the jury could have concluded that Edwards held up Dixon at gunpoint and then shot him so that Dixon could not identify him. Edwards came to the attention of the Jackson police the following day when they investigated a complaint that a man was threatening a woman at gunpoint. Edwards proved to be the object of this complaint, and the investigating officer confiscated the weapon in Edwards' possession. Ballistics tests established that the shot that killed Dixon was fired from the confiscated pistol. This evidence, together with the testimony of Edwards' co-indictee, Mikel Leroy White, was the principal evidence adduced against Edwards at the guilt phase of the trial.

During the sentencing phase of the trial, the state introduced evidence of a number of earlier convictions entered against Edwards. The state also introduced evidence that at the time of Dixon's murder Edwards was at large as an escapee from the Louisiana State Penitentiary. Edwards called two witnesses in the sentencing phase, his mother and a Catholic priest. The jury recommended a death sentence after finding the following statutory aggravating circumstances:

(1) the capital murder was committed while the Defendant was engaged in the commission of a robbery; (2) the capital murder was committed for pecuniary gain; (3) the capital murder was committed for the purpose of avoiding lawful arrest; (4) the capital murder was committed by the Defendant while under sentence of imprisonment; (5) the capital murder was committed by the Defendant who was previously convicted of a felony involving the use or threat of violence to the person; (6) another capital murder was committed by the Defendant.

Appellant asserts a number of constitutional violations in his trial, conviction, and sentence, each of which he contends justifies granting the writ. We shall consider each argument in turn.

III.

A. The Swain Claim

For his first claim, the petitioner asserts that Ed Peters, the prosecuting district attorney for the Seventh Circuit Court District of Mississippi, uses the state's allotted peremptory challenges to systematically exclude blacks from juries in violation of the fourteenth amendment. Following a period of discovery, the district court held a hearing and rejected petitioner's claim.

At the outset, we agree with the district court that the rule established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), governs this case. Although the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), drastically changed the ground rules for the state's exercise of peremptory challenges, the Court announced that Batson is not to apply retroactively to cases pending federal habeas corpus review at the time of the decision, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199, 204-06 (1986), or to cases in which the appeals process has been completed, see Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, 661-62 (1987). In Smith v. McCotter, 798 F.2d 129, 132 (5th Cir.1986),we held that Batson does not apply retroactively in capital cases.

We now turn to a review of petitioner's claim under the standard established in Swain v. Alabama. The district court held a hearing on this claim in which the facts were fully ventilated. The petitioner, Leo Edwards, was tried and convicted by an all-white jury in the circuit court for the First Judicial District of Hinds County, Mississippi. Ed Peters has served as the district attorney for this district since 1972. Peters was quoted in a newspaper article in July of 1983 as saying that when he was presented with blacks on a jury panel his philosophy was to "get rid of as many" as he could. This article caught the attention of defense counsel in this case and others, and Peters was later deposed. In his deposition and testimony at the hearing, Peters stated that he had a philosophy of striking the black juror when presented with a choice between a white and black juror and all other factors were equal. Mr. Peters explained that his experience in the trial of criminal cases had taught him that blacks were more sympathetic to the defense than white jurors are.

Discovery on this issue revealed that the district attorney's office had kept records of important facts bearing on jury selection in 242 criminal cases tried in the First Judicial District and that the trial judge who presided over the majority of the criminal trials in that district kept his own records in 76 additional cases. All of these records had complete jury lists reflecting the names and races of the potential jurors, the peremptory strikes exercised by both the prosecution and the defense, and the racial composition of the jury selected in each case. These records covered 318 criminal trials (approximately half of the cases tried during this period) from 1976 to 1985. Summary sheets were submitted in evidence and served as raw data for experts called by both sides at the hearing.

The two experts agreed on the substance of the statistical data but drew different conclusions as to its significance. The evidence revealed that the voter registration rolls from which the jury lists were drawn reflected a registered voter population that was 64.13% white and 33.94% black. Based upon a composite of the available data, the parties agreed that: (1) the preperemptory strike pool venire was 62.3% white and 37.7% black; (2) the jury composition in the cases tried was 71.4% white and 28.6% black; (3) this percentage varied slightly depending upon whether a black defendant was on trial (black defendant: 72.2% white, 27.8% black; white defendant: 68.3% white, 31.17% black); and (4) the jury composition in all cases that District Attorney Peters tried personally was virtually the same as the composite figure in our second observation above. ¹

Dr. Allen Lichtman testified as an expert for Edwards. He concluded that the statistical information revealed that the prosecutors in this judicial district depressed the proportion of black persons serving on juries by use of the peremptory challenge. The data revealed a 9% actual or mean difference between the percentage of blacks on the venire panel (37%) and the percentage of blacks serving on juries (28%). Dr. Lichtman concluded that the prosecutors' different treatment of black and white veniremen was racially motivated.

The state's expert witness, Dr. Claude Rowland, focused on the evidence that approximately 29% of all jurors serving in this district were black. According to Dr. Rowland, this percentage was not grossly disproportionate to the percentage of blacks registered to vote in the district--34%--or the number of blacks on the pre-peremptory venire panel--38%. Dr. Rowland concluded that blacks were not disenfranchised from serving on juries. Dr. Rowland also found significant the number of occasions when the prosecutors challenged whites and left blacks on the venire. Dr. Rowland's analysis revealed that the prosecutor had an average of 1.9 of these "foregone opportunities" to strike black jurors in each case.

District Attorney Peters testified that on the average blacks are less law-enforcement oriented than whites. He attributes this to their socioeconomic background as well as a history of oppression. He testified that he sometimes accepts black jurors in all types of cases. Peters testified nonetheless that if he is faced with a choice of striking a black venireman or a white venireman and there is no specific reason to exclude either, he excludes the black. The district court found no evidence that Peters is a racist; it was persuaded that Peters challenged a disproportionate number of black prospective jurors because of a sincerely held belief that a black juror was ordinarily...