Harris v. Cockrell
| Decision Date | 18 November 2002 |
| Docket Number | No. 01-41395.,01-41395. |
| Citation | 313 F.3d 238 |
| Parties | David Ray HARRIS, Petitioner-Appellee-Cross-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant-Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert M. Roach, Jr., Cook & Roach, Solace Kirkland Southwick, Andrews & Kurth Mayor, Day, Caldwell & Keeton, Thomas Miles Farrell, Nickens, Keeton, Lawless, Farrell & Flack, Houston, TX, for Harris.
Gena Blount Bunn, Asst. Atty. Gen., Austin, TX, for Cockrell.
Appeals from the United States District Court for the Eastern District of Texas.
Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.
The State of Texas appeals the grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, David Harris, cross-appeals the rejection of his claims that the jury in his capital trial was unconstitutionally precluded from giving mitigating effect to evidence of his alcoholism and that the admission of evidence of an extraneous offense of which he had been acquitted denied him a fair trial. We affirm in part, reverse in part, and render judgment in favor of the state.
In 1985, Harris entered the apartment of Mark Mays while Mays and his girlfriend, Roxanne Lockard, were sleeping. Armed with a revolver, Harris went into the bedroom and awakened them. After instructing Mays to lock himself in the bathroom, Harris led Lockard out of the apartment at gunpoint and directed her to get into his truck.
Mays emerged from the apartment with a gun, and the two men exchanged fire. According to Harris, Mays shot first, hitting Harris in the neck, then in the shoulder, before Harris began shooting at Mays. After shooting Mays several times, once at close range, Harris left. He was found guilty of capital murder.
This appeal raises several claims related to the conduct of the sentencing phase of the trial. The state appeals the district court's grant of habeas relief that was based on two of Harris's claims: first, that the special instructions given to the jury failed to provide an adequate vehicle for the jury to give effect to Harris's evidence of provocation; and second, that the failure of counsel to present certain items of potentially mitigating evidence constituted ineffective assistance. Harris cross-appeals the rejection of his additional claims that the special issues were unconstitutionally flawed in that they precluded the jury from giving effect to evidence of Harris's alcoholism; that the prosecutor's allegedly improper closing argument during the guilt-innocence phase denied Harris a fair trial; and that Harris was denied a fair sentencing determination by the admission of evidence of an extraneous offense of which he had been acquitted.
The district court erred in deciding that the jury instructions at the punishment phase provided an insufficient vehicle for the jury to give effect to Harris's mitigating evidence related to provocation and that Harris was prejudiced by ineffective assistance of counsel. We affirm the rejection of the remaining claims.
At the sentencing phase, the jury answered affirmatively the three special issues related to deliberateness, future dangerousness, and inadequate provocation. Consequently, Harris was sentenced to death. Citing Penry v. Lynaugh ("Penry I"), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Penry v. Johnson ("Penry II"), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), Harris contended that the Texas special issues framework was unconstitutional as applied to his case, because it precluded the jury from giving effect to potentially mitigating evidence related to provocation by the victim and Harris's alcohol abuse. The district court granted relief on the claim based on the evidence of provocation and rejected the claim as to evidence of alcohol abuse. We conclude that the special issues permitted the consideration of both types of mitigating evidence.
In Penry I, 492 U.S. at 328, 109 S.Ct. 2934, the Court held that the Texas special issues were constitutionally deficient as applied to the defendant, because they failed to provide the sentencing jury with an adequate means of giving effect to mitigating evidence of severe mental retardation and abuse. Harris claims that these special issues likewise precluded the jury from giving mitigating effect to his evidence of alcohol abuse, in violation of Penry I.
To form the basis of a Penry claim, mitigating evidence "must demonstrate a `uniquely severe permanent handicap[] with which the defendant was burdened through no fault of his own.'"1 Under this definition, neither evidence of alcoholism nor evidence of intoxication at the time of the offense constitutes Penry evidence.2
The jury was able to give mitigating effect to the evidence of Harris's alcoholism through its answers to the first and second special issues. Evidence of intoxication can be fully considered under the first special issue,3 which asked the jury to evaluate the deliberateness of Harris's conduct.4 Furthermore, to the extent that "alcoholism has independent mitigating weight apart from intoxication at the time of a crime," James, 987 F.2d at 1121 n. 6, the second special issue, which relates to future dangerousness,5 provided a means for giving mitigating effect to Harris's evidence that he is an alcoholic. See id. at 1121.
Trial counsel presented testimony at the sentencing phase that Harris's history of violent conduct stemmed from his alcoholism, which could be brought under control. The jury reasonably could have considered this testimony when evaluating whether Harris was a continuing danger to society. See id. Therefore, the district court was correct in rejecting Harris's Penry claims based on his mitigating evidence related to alcoholism and intoxication.
Citing Penry II, the district court held that the third special issue6 did not provide the jury with an effective means for consideration of evidence that Mays fired his weapon first. In Penry II, 532 U.S. at 789, 121 S.Ct. 1910, jurors were given the same three special issues submitted in this case. They also were given a supplemental "nullification instruction," directing jurors to answer any special issue in the negative, irrespective of the evidence on that special issue, if they believed the mitigating circumstances rendered a life sentence more appropriate than death. Id. at 789-90, 121 S.Ct. 1910. In essence, the jury could give effect to the nullification instruction only by answering one of the special issues untruthfully. Id. at 799, 121 S.Ct. 1910. The Court held that this nullification instruction failed to provide an adequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence, because it "it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation." Id.
The district court noted that by rejecting Harris's defense of voluntary manslaughter, the jury found that the killing was not done "under the immediate influence of passion based upon adequate cause." At the sentencing phase, the court continued, a juror who believed that Harris should receive a life sentence instead of the death penalty, because the victim shot first, could act on that belief only by answering in the negative the third special issue, which addresses whether the defendant's conduct in killing the victim was reasonable in light of any provocation.
The court reasoned that such a response would be inconsistent with the jury's rejection of Harris's manslaughter defense and that a juror could not logically answer the third special issue in the negative. As a result, the court concluded, the jury could not give mitigating effect to the evidence of provocation.
Penry II is inapplicable here, because the jurors were not directed to give untruthful responses or to violate their oaths to give effect to the mitigating evidence. There are no internal contradictions of the sort created by the nullification instruction considered in Penry II. Further, even if Penry II were applicable, the district court erred in holding that a negative answer to the third special issue is inconsistent with the jury's rejection of the voluntary manslaughter defense at the guilt-innocence phase.
The state trial court's construction of the third special issue defines the provocation inquiry more broadly than is the case with the guilt-innocence inquiries of self-defense and manslaughter.7 In other words, a reasonable jury could find that the evidence of provocation was insufficient to justify a verdict of voluntary manslaughter but sufficient to justify a negative answer to the third special issue. Indeed, Harris's trial counsel specifically told the jurors, during argument at the punishment phase, that their guilty verdict did not foreordain an affirmative answer to the third-special issue. Therefore, the district court erred in granting relief to Harris on this issue.
The district court held that counsel's failure to present certain items of potentially mitigating evidence at the punishment phase constituted ineffective assistance of counsel. In particular, the court cited the failure of trial counsel to introduce evidence concerning Harris's troubled childhood and family background, drug and alcohol problems, and prior prison record.
We need not decide this question, for, even assuming arguendo the correctness of the court's substituted findings and its conclusion that counsel's conduct constituted deficient performance, the court erred in holding that this performance prejudiced the defense under Washington, 466 U.S. at 694, 104 S.Ct. 2052, which requires the claimant to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In the context of a claim...
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