Jones v. Thigpen

• Citation: 741 F.2d 805
• Decision Date: 17 September 1984
• Docket Number: No. 83-4085,83-4085
• Parties: Larry JONES, Petitioner-Appellee Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Dept. of Corrections, et al., Respondents-Appellants Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 805

741 F.2d 805

Larry JONES, Petitioner-Appellee Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Dept. of

Corrections, et al., Respondents-Appellants Cross-Appellee.

No. 83-4085.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 1984.

Rehearing and Rehearing En Banc Denied Nov. 1, 1984.

Bill Allain, Atty. Gen., William S. Boyd, III, Marvin L. White, Jr., Amy Whitten, Jackson, Miss., for respondents-appellants cross-appellee.

Freeland & Gafford, T.H. Freeland, III, T.H. Freeland, IV, Oxford, Miss., Mary Carolyn Ellis, University, Miss., for petitioner-appellee cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REAVLEY, JOHNSON and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:

Larry Jones was convicted in Mississippi of capital murder and was sentenced to death. After appealing his conviction and seeking collateral relief in the Mississippi state courts, Jones filed this petition for habeas corpus. The district court denied relief with regard to Jones' conviction but vacated his death sentence on the grounds that he received ineffective assistance of counsel at the sentencing hearing and that the sentence violated Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The district court authorized the State, if it so chose, to hold a new sentencing hearing at which Jones would again face the possibility of a death sentence. We affirm in major part, but hold that, because the State failed once to produce evidence of Jones' personal culpability sufficient under Enmund it is now barred by the Double Jeopardy Clause from trying a second time.

I

This is a classic case of felony murder with no eye witnesses. On the morning of December 2, 1974, petitioner Larry Jones and his friend Willie Reddix persuaded Willie's brother J.D. Reddix to drive them to downtown Biloxi in J.D.'s gray Cadillac. Neither Jones nor Willie told J.D. why he needed to go into Biloxi. J.D. drove his brother and Jones downtown and parked the car. J.D. would later testify that Jones was wearing combat boots and that Jones and Willie got out of the car and headed toward Howard Avenue, the general direction of Art's Levis, a clothing store owned by Arthur Weinburger. Lula Mae Bell, the aunt of Willie and J.D., happened to be downtown shopping that day. After first saying she had not seen Jones and Willie downtown, Bell testified that she saw Jones and Willie get out of J.D.'s car. She remembered that Jones wore fatigues and combat boots.

Orvell McGee was doing road work in Biloxi on the morning of December 2 when he noticed two black men get out of a parked Cadillac at about 11:15 and walk toward Howard Avenue. He remembered that one man, the driver, stayed in the car. Preston Sullivan was also downtown that day. He parked his car about a block from Art's along Howard, and as he walked toward the store, Sullivan noticed a black man carrying a Navy P-coat over his shoulder emerge into the street "in the vicinity of" Art's and head east. Sullivan walked past the man and into the store, where he found Arthur Weinburger lying wounded and unconscious. Sullivan summoned help. He would later testify that he found Weinburger between 11:30 and 11:45.

Lula Mae Bell testified that she saw Willie with a coat over his shoulder running east along Howard. Ray Real was on his way back from lunch at about 11:45, according to his testimony, when he saw a black man carrying a footlocker and walking west along Howard. Orvell McGee was still at work when he saw the two men who had left the car return. He recalled at trial that they came from different directions--one wore combat boots, carried a footlocker, and returned from the direction of the Kennedy Marine Building; the other had a leather coat over his shoulder and returned from Howard Avenue. The men had left the car with neither a footlocker nor a coat. Neither McGee, Sullivan, nor Real could identify the men they saw that day.

J.D. testified that he waited about 15 minutes before Jones and Willie returned. He testified that Jones came back by Kennedy Marine and that he was carrying a blue footlocker. Willie returned from the direction of Howard Avenue and carried a jacket. The two got into the car and told J.D. to drive back to the Reddix house. They never told J.D. what happened. Annie Reddix, the mother of Willie and J.D., testified that Jones brought a footlocker into her house on December 2. He said it was his, and she let him leave it there. She also testified that Jones was wearing combat boots when he arrived at her house, but that he changed into tennis shoes shortly thereafter.

The investigation proceeded quickly after J.D. was arrested wearing some of the clothing stolen from Art's. Police searched Annie Reddix' house the afternoon after the robbery and found the footlocker full of clothes; an employee at Art's later identified both the trunk and its contents as having been stolen from the store. Authorities also found a pair of combat boots; later tests revealed that the boots were stained by human blood, particularly the cloth top of the right boot.

Jones was tried in December 1977. ¹ J.D. Reddix testified about his drive to Biloxi with Larry and Willie on December 2, 1974. According to J.D., the two said nothing beforehand about what they planned to do downtown and never told him afterward what had happened while he waited in the car. Orvell McGee and Preston Sullivan testified about what they saw that day, as did Ray Real, but none of these witnesses identified Willie or Larry as the men they saw and none offered any hint about what happened inside Art's store. J.D. testified that Jones wore combat boots that day, and the State introduced the boots found stained with blood in the Reddix home. An Art's employee also identified the footlocker and clothes found at the Reddix house as having been stolen from the store.

Jones was accused of "capital murder," defined in Mississippi to include a killing done "with or without any design to effect death" by a person engaged in a robbery. Miss.Code Ann. Sec. 97-3-19 (Supp.1983). Thus, the trial court apparently delivered a typical felony murder instruction to the jury. ² Defense counsel had not requested and the trial court did not give any instruction authorizing the jury to find Jones guilty of a lesser included offense--they were either to find the defendant guilty or not guilty of capital murder. Their verdict was guilty. The court immediately proceeded with the separate sentencing hearing required by Mississippi statute. See Miss.Code Ann. Sec. 99-19-101 (Supp.1983). The State introduced evidence of the victim's age and size, photographs of the victim taken at the hospital, and evidence of Jones' 1975 armed robbery conviction; the defense offered no evidence at the sentencing hearing. Part of the defendant's final argument was delivered by Jones himself, who sought to persuade the jury that the two black men involved in the robbery were Willie and a man named Roy or Royce. The court instructed the jury about the aggravating and mitigating circumstances according to Mississippi's capital punishment statute, and the jury returned its verdict the next morning sentencing Jones to death.

Jones appealed to the Mississippi Supreme Court, arguing among other things that the evidence at trial was insufficient to show that he "was actively engaged in an assault upon the victim in the course of the robbery," and that the trial court violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). After reviewing the circumstantial evidence we have already recited, the Mississippi court rejected Jones' claim that the evidence was insufficient to show that he actually assaulted Weinburger. Jones v. State, 381 So.2d 983, 987-89 (Miss.), cert. denied, 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (1980). The State need not have shown Jones' "precise role" in the killing, reasoned the court, because Mississippi's definition of capital murder includes a killing "done with or without any design to effect death ...." 381 So.2d at 989 (quoting Miss.Code Ann. Sec. 97-3-19(2)(e)). ³ The court then rejected Jones' Witherspoon claim, id. at 992, and affirmed both his conviction and sentence.

Jones sought collateral review according to state procedure on March 3, 1981, by moving the Mississippi Supreme Court for leave to petition the trial court for a writ, either of error coram nobis or of habeas corpus. See Miss.Code Ann. Sec. 99-35-145 (1973). Jones challenged his conviction on several grounds, among them that the facts required the trial court to instruct the jury on "the lesser included offense of simple murder," and that the court's failure to deliver such an instruction violated Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). He also argued that his death sentence constituted cruel and unusual punishment for several reasons, including the fact that he was convicted under Mississippi's capital murder statute with no finding that he killed or intended to kill Arthur Weinburger. ⁴ The State responded to most of Jones' arguments on their merits. The single relevant exception was its answer to the Beck claim, in which the State noted that Jones had not requested an instruction on lesser included offenses at trial and had never presented the Beck argument at any stage in the state proceedings. The Mississippi Supreme Court denied the motion with no explanation on April 1, 1981:

This cause this day came onto be heard on motion for leave to file petition for writ of error coram nobis and/or for a writ of habeas corpus and this Court having sufficiently examined and considered the same and being of the opinion that the same should be denied doth order that said motion be and the same is hereby denied.

Jones had filed this petition for federal habeas on March 9, 1981, shortly after moving for collateral relief...