Evans v. McCotter, 85-1665

Decision Date04 June 1986
Docket NumberNo. 85-1665,85-1665
Citation790 F.2d 1232
Parties20 Fed. R. Evid. Serv. 1168 Michael Wayne EVANS, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent- Appellee. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Walter L. Irvin, E. Brice Cunningham, Dallas, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Paula Offenhauser, Austin, Tex., for respondent-appellee.

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

Before GEE, RANDALL and DAVIS, Circuit Judges.

RANDALL, Circuit Judge:

Michael Wayne Evans, a state prisoner sentenced to death, appeals from the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Secs. 2241, 2254. The district court granted a certificate of probable cause. Upon consideration of the arguments raised, in the context of the entire record, we are convinced that Evans has not proved that his trial suffered from federal constitutional infirmities. Accordingly, we affirm.

I.

For the purposes of this proceeding, the facts are as follows. 28 U.S.C. Sec. 2254(d). The decomposed bodies of a man and a woman were found on June 30, 1977, covered with bushes and leaves in a field in south Dallas. Both bodies had been shot several times. Police found near the bodies a cylinder pin or ejection rod from a .22 caliber pistol. The woman's body subsequently was identified by her clothing as Elvira Guerrero, who had last been seen leaving evening church services in her car on June 26, with $40 in church offering money. A .22 caliber bullet was removed from her body. The man's body was determined to be Mario Alvarado Garza, who accompanied Guerrero to the church services. On July 11, 1977, police noticed Guerrero's automobile parked in an apartment complex area in Dallas. Police asked residents of the complex questions concerning its ownership, and were told that it may have belonged to Belinda Key, whose apartment was about 15 feet from where the car was parked. Police entered the apartment with Key's consent, but Evans, who was living in the apartment, fled unnoticed out a back window. They recovered, from a dresser drawer in a bedroom, a .22 caliber revolver (of a type commonly called a "Saturday Night Special") with its ejection rod missing. Key stated that the pistol belonged to Evans. Questioning of Key convinced officers that Evans was a suspect in Guerrero's slaying. Officers took a palm print from Guerrero's car, which was subsequently identified as belonging to Evans.

Evans returned to the apartment within a few hours, and he was arrested at 4:30 p.m. on July 11. A Dallas police officer gave Evans Miranda warnings immediately. Evans was removed to Dallas police headquarters where, before questioning, he was again administered Miranda warnings. Evans stated that he understood the warnings, and that he wanted to talk. In fact, he talked with the police officers for about two hours. He implicated another individual, Stanley Earl Smith, in the slayings. Police went with Evans to the housing project where Smith lived, then intended to drive to the home of a justice of the peace for arraignment. While driving to the justice of the peace's home, and in response to further police questioning by different officers than had questioned him previously, Evans told police that he would show them where the keys to Guerrero's car had been thrown, in shrubs near a school. 1 Police searched the area, but did not find the keys. Police then took Evans to the justice of the peace, who, for a third time in less than six hours, administered Miranda warnings. Evans was brought back to the police station at 10:15 p.m., where police asked if he remembered the warnings. After a little over one hour of further questioning, Evans made a written statement admitting having robbed Guerrero and Garza, but assigning primary responsibility for the slayings to Smith. 2

The next day, July 12, police again searched for the car keys where Evans said he had thrown them. Although they were unsuccessful, a member of a maintenance crew trimming the shrubs found a set of keys, and turned them over to police. The keys fit Guerrero's car. Later on July 12, police resumed questioning Evans, after again giving him Miranda warnings. Evans admitted to having participated in the robbery and murder of an individual named David Lee Potts about two weeks before the killing of Guerrero, but stated that Smith had actually killed Potts.

On July 14, 1977, three days after his arrest, police removed Evans from the jail and transferred him to the police station. While driving to the station, one officer told Evans his July 11 statement was not believable. Evans responded that officers should "give him some time and he would think about it." Later that day, while at the jail, Evans initiated a conversation with police, and said that he wanted to make another statement. Police twice more provided Miranda warnings, after which Evans confessed to having killed Potts in a robbery on June 15, 1977. After another Miranda warning--the seventh within three days--Evans confessed in a written statement to having killed Guerrero. 3 At no point in the interrogation process, from the time he was arrested, did Evans request an attorney.

At the trial of Evans, the State introduced evidence that at about midnight on June 27, Evans returned to Key's apartment with blood on his hands and clothing. On June 27, a companion of Key helped Evans clean "blood and flesh" from the inside of Guerrero's car, and brought it back to Key's apartment complex. Key asked Evans where he got the car, and he responded that he and Smith "had jacked 4 some people and hit them in the head and tied them up and covered them with bushes." Evans' girlfriend, Juanita Ingram, was also at the apartment when Evans returned in the early morning hours of June 27. Evans told Ingram that he killed some Mexicans, and gave her a watch from "the Mexican lady that he had killed." Finally, Evans told his cousin, Stanley Robinson, in response to a question concerning how he obtained the car in which he was riding, that he took it from a couple that he had killed.

The jury returned a verdict of capital murder and sentenced Evans to death. The Texas Court of Criminal Appeals reversed the judgment and remanded for a new trial because certain prospective jurors were improperly excused in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Evans v. State, 614 S.W.2d 414 (Tex.Crim.App.1980) (en banc). The jury again convicted Evans and, after a hearing at which the state and the defense presented witnesses, sentenced him to death. The conviction was affirmed on direct appeal. Evans v. State, 656 S.W.2d 65 (Tex.Crim.App.1983) (en banc), cert. denied, 465 U.S. 1109, 104 S.Ct. 1616, 80 L.Ed.2d 145 (1984).

Evans filed a petition for writ of habeas corpus in the state convicting court, which was denied in August 1984. He filed a second petition in state court immediately thereafter, which also was denied.

The instant federal petition, prepared with the assistance of counsel who represented Evans at trial, was filed on October 10, 1984. The magistrate in a written opinion recommended that the petition be dismissed without a hearing. The district judge adopted that recommendation, but granted Evans a certificate of probable cause to appeal.

II.

Evans raises numerous grounds for relief in his petition, which may be divided into six general categories: (A) Miranda violations in connection with the statement that allowed police to recover the keys to Guerrero's car; (B) flaws in the grand jury and petit jury selection process; (C) various evidentiary rulings at the guilt/innocence and punishment phases of the trial; (D) insufficiency of the evidence to support the death sentence; (E) disproportionality of the death sentence to the offense; and (F) a wholesale attack on the Texas death penalty statute.

A. Miranda Claims.

Evans was arrested at 4:30 p.m. on July 11, taken to police headquarters, then to jail. At about 7:30 p.m., after having been removed from the jail, and apparently in response to police questioning, he told police where he had thrown the keys to Guerrero's car. Although within this three-hour period Evans was twice given Miranda warnings, before going to jail, he was not so warned upon being picked up from the jail. The trial court admitted evidence of this oral statement over Evans' objection. Evans appears to contend that when police re-initiated interrogation at about 8:00 p.m., they should again have warned him of his rights, although they had twice done so in the preceeding three hours, and Evans had not indicated a lack of willingness to talk and had not requested an attorney. 5

As the Supreme Court has stated repeatedly, "custodial interrogations, by their very nature, generate 'compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' " Moran v. Burbine, --- U.S. ----, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986) (quoting Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966)). The Supreme Court recently summarized the rationale of Miranda, as well as its limits:

To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealing with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the state's intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to "have counsel present ... if [he] so desires." Id. at 468-70, 86 S.Ct. at 1624-26. Beyond this duty to inform, Miranda requires that the police respect the accused's decision to exercise the rights outlined in the warnings. "If the...

To continue reading

Request your trial
51 cases
  • West v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Agosto 1996
    ...States v. Udey, 748 F.2d 1231 (8th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985). Cf. Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986).31 West does not argue to us that his arrest was illegal ......
  • State v. Mattox
    • United States
    • Kansas Supreme Court
    • 9 Diciembre 2005
    ...Cir.1987) (3-to 4-hour gap between waiver of Miranda rights and third confession in another city was not unreasonable); Evans v. McCotter, 790 F.2d 1232 (5th Cir.1986) (several-hours' gap between waiver of Miranda rights and confession not unreasonable); Stumes v. Solem, 752 F.2d 317, 320 (......
  • Powell v. Bowersox
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 15 Agosto 1995
    ...412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); see Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); United States v. McClure, 786 F.2d 1286, 1288-90 (5th ......
  • Wasko v. Dugger, 90-0312-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • 2 Abril 1991
    ...habeas petitioners challenging limits on cross-examination of adverse witnesses in their state criminal trials. See Evans v. McCotter, 790 F.2d 1232, 1240-41 (5th Cir.1986) (applying different standard to general attack on state evidentiary ruling than to claim of confrontation clause viola......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT