Evans v. Thigpen

• Decision Date: 21 March 1986
• Docket Number: Civ. A. No. J84-0090(B).
• Citation: 631 F. Supp. 274
• Parties: Connie Ray EVANS, Petitioner, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, Respondents.
• Court: U.S. District Court — Southern District of Mississippi

631 F. Supp. 274

Connie Ray EVANS, Petitioner, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, Respondents.

Civ. A. No. J84-0090(B).

United States District Court, S.D. Mississippi, Jackson Division.

March 21, 1986.

COPYRIGHT MATERIAL OMITTED

Shirley Payne and Isaac Byrd, Jackson, Miss., and Steven L. Winter, New York City, for petitioner.

Marvin L. White, Asst. Atty. Gen., Jackson, Miss., and William S. Boyd, III, Sp. Counsel, Gulfport, Miss., for respondents.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

I. INTRODUCTION

This habeas corpus death penalty case is presently before the Court for review of a Report and Recommendation issued by the United States Magistrate. Having conducted a de novo review of the pleadings, briefs, and state court evidentiary record in this matter, the Court agrees with the Magistrate's ultimate recommendation that the Petition for habeas relief should be denied. However, we deny the writ, and uphold the imposition of the death penalty, only for the reasons set forth in this opinion.

Having been indicted for the April 1981 murder "with malice aforethought" of Arun Pahwa while engaged in the crime of robbery in violation of Miss.Code Ann. § 97-3-19(2)(e), the Petitioner, Connie Ray Evans, pled guilty to the capital offense and proceeded directly to the penalty phase of Mississippi's bifurcated scheme. R.2, 68-75. After the sentencing hearing, the jury found that the state had proved four statutory aggravating circumstances, that the aggravating circumstances outweighed any mitigating circumstances, and that the death penalty should be imposed. On direct appeal, the Mississippi Supreme Court upheld the sentence of death. Evans v. State, 422 So.2d 737 (Miss.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 314 (1983). After an unsuccessful request for hearing, Petitioner then filed an application for error coram nobis relief, which was denied by the Mississippi Supreme Court. Evans v. State, 441 So.2d 520 (Miss.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3558, 82 L.Ed.2d 860 (1984). On February 8, 1984, the instant 63-page Petition for federal habeas relief was filed in this Court, and on February 10, an order staying the execution was entered. The matter was referred to the United States Magistrate, who issued his Report and Recommendation on March 13, 1985. Objections to that report were duly filed by Petitioner.

The underlying facts concerning this capital offense are succinctly stated by the Mississippi Supreme Court in its opinion on direct appeal, 422 So.2d at 739, and will only be briefly summarized here. On April 7, 1981, Petitioner Evans and an accomplice, Alfonso Artis, met and planned an armed robbery of a neighborhood grocery in Jackson, Mississippi. It was contemplated that lethal force might have to be employed during the course of the robbery. The next day, April 8, Evans and Artis put the plan into action. Artis went into the grocery with a .38 caliber revolver while Evans initially acted as a look-out. Artis made the store clerk, Arun Pahwa, get on his knees behind the counter. Evans then entered, received the handgun from Artis, and stood over Pahwa with the cocked revolver pointed at the victim's head. When Artis could not get the cash register drawer open, Pahwa was made to get up and open the register. He was then forced to a kneeling position. Artis then collected an approximate total of $140.00 from the cash register and from Pahwa's pockets and wallet. As Artis turned to leave, Evans shot the kneeling Pahwa in the head from a distance of approximately 3 or 4 feet. R. 398-400. The Petitioner and Artis then left the scene of the crime together, and proceeded that day to spend most of the money they had obtained in the robbery on new clothes and personal entertainment.

Artis was apprehended by police later the same day. Petitioner Evans turned himself in to police some two and a half weeks later and gave a confession. In his confession, Petitioner stated that he shot Pahwa because he did not want to be identified.¹ According to Artis' testimony at the hearing, Evans told him that he shot Pahwa because "I was cold hearted."

The central evidence and argument offered by Petitioner at the sentencing hearing in mitigation of the death penalty and in favor of life imprisonment was that he was remorseful for his crime, that he had confessed and turned himself in, and that he should be afforded mercy and forgiveness. The State, in addition to its evidentiary showing regarding the existence of statutory aggravating circumstances, vigorously sought to discredit the factual basis for Petitioner's claim of remorse. The jury found that the State had proved four statutory aggravating circumstances under the following sub-sections of Miss.Code Ann. § 99-19-101: 5(a), that the capital offense was committed by a person "under sentence of imprisonment"; 5(d), that the capital offense was committed while the defendant was engaged in committing a robbery; 5(e) that the capital offense was committed "for the purpose of avoiding or preventing a lawful arrest"; and 5(h), that the capital offense was "especially heinous, atrocious and cruel" sic. As noted above, the jury further determined that these aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death.

The Petition before the Court alleges the following state court errors or omissions, all said to be in violation of the Eighth and Fourteenth Amendments: (1) a prospective juror was excluded in violation of Witherspoon; (2) the "heinous, atrocious or cruel" aggravating circumstance was misapplied; (3) the death penalty was imposed on the basis of passion and prejudice because of erroneous evidentiary rulings and improper prosecutorial argument; (4) the refusal of an instruction regarding "mercy"; (5) the exclusion of the testimony of a minister regarding Christian ethics; (6) the lack of a finding of an intent to take life; (7) the use of felony-murder as an aggravating circumstance; (8) the misapplication of the "arrest-avoidance" aggravating circumstance; (9) the misapplication of the "under sentence of imprisonment" aggravating circumstance; (10) the absence of prior notice of the aggravating circumstances on which the state would rely; (11) the lack of a presentence report; (12) an inadequate post-sentence report by the trial judge; (13) that the Mississippi death penalty scheme is arbitrarily applied; and (14) that the death penalty is discriminatorily applied against males, the poor, and blacks accused of killing whites.

As is our duty in death penalty cases, we have carefully reviewed the record for error in connection with these claims. See Johnson v. Thigpen, 623 F.Supp. 1121, 1127 (S.D.Miss.1985). Our review does not encompass mere errors of state law, but instead focuses on colorable errors of constitutional dimension which may have rendered the sentencing proceeding fundamentally unfair and made the imposition of death as a penalty inappropriate. Kirkpatrick v. Blackburn, 777 F.2d 272, 278-80 (5th Cir.1985); Mattheson v. King, 751 F.2d 1432, 1435 (5th Cir.1985); Zant v. Stephens, 462 U.S. 862, 883-84, 103 S.Ct. 2733, 2746-47, 77 L.Ed.2d 235, 254-55 (1983). As this Court noted in Johnson, the procedural posture of some claims may serve as a limitation on habeas review. Here, as in Johnson, the state has urged that a number of claims are procedurally barred, and we utilize the same approach here as we took in that case. 623 F.Supp. at 1127-28; see also Edwards v. Thigpen, 595 F.Supp. 1271 (S.D.Miss.1984).

In Edwards, we refused to honor, as an adequate and independent state ground for decision, the Mississippi Supreme Court's invocation of strict procedural default rules on error coram nobis review for issues not raised on direct appeal to that Court. See 595 F.Supp. at 1277-79. Under the circumstances present there, the retroactive application of the strict procedural default rule would have unjustly penalized the petitioner because of the Mississippi Supreme Court's previous practice of addressing the merits on error coram nobis review regardless of a default on direct appeal. As we subsequently explained in Johnson, however, our holding in Edwards is of limited prospective applicability. First, it initially applies only to a class of case in which the direct appeal to the Mississippi Supreme Court was taken prior to its March 23, 1983, decision in Edwards v. Thigpen, 433 So.2d 906 (Miss.1983). Like Johnson, the instant case meets that criteria. Second, under Johnson, where error has not been preserved at trial, and has not been otherwise addressed by the appellate court on the merits, we will on federal habeas review honor the state court's invocation of its procedural default rules unless the requisite showing of cause and actual prejudice has been made to explain the default. See Johnson, 623 F.Supp. at 1127-28; Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

II. DISCUSSION

A. Alleged Violation of Witherspoon v. Illinois.

Petitioner contends that the exclusion of prospective juror Mary Rouchon for cause violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It is well settled, of course, that the improper exclusion of even one juror under the applicable Sixth Amendment standard will nullify the imposition of the death penalty. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). Petitioner asserts that the record of the voir dire indicates that juror Rouchon merely had scruples about the death penalty and that her responses demonstrate that she could vote to impose the death sentence in certain cases and would abide by the trial court's instructions. According to Petitioner, the Mississippi Supreme Court erroneously relied only upon certain responses by Rouchon which were taken out of context and out of order.

For reasons set forth further...