Mcgowen v. Thaler

• Decision Date: 25 March 2010
• Docket Number: Civil Action No. H-06-3182
• Citation: 717 F.Supp.2d 626
• Parties: Roger Wayne McGOWEN, Petitioner, v. Rick THALER, Respondent.
• Court: U.S. District Court — Southern District of Texas

717 F.Supp.2d 626

Roger Wayne McGOWEN, Petitioner,

v.Rick THALER, Respondent.

Civil Action No. H-06-3182.

United States District Court,

S.D. Texas,

Houston Division.

March 25, 2010.

David R. Dow, Houston, TX, Paul Edward Mansur, Attorney at Law, Anthony Seymour Haughton, Haughton Assoc., Denver City, TX, for Petitioner.

Tina Dettmer Miranda, Office of the Attorney General, Austin, TX, for Respondents.

MEMORANDUM AND ORDER

MELINDA HARMON, District Judge.

Roger Wayne McGowen, a Texas inmate incarcerated under a capital conviction and death sentence, has filed a federal petition for a writ of habeas corpus. McGowen'spetition claims that error infected both his conviction and sentence. Respondent seeks summary judgment. For the reasons discussed below, the Court finds that constitutional error in the punishment phase jury instructions require that Texas either (1) commute his sentence to one of life imprisonment or (2) hold a new sentencing hearing. This Court's review of the record, the pleadings, and the law, however, shows that habeas relief is unavailable with respect to McGowen's conviction. The Court will discuss the reasons for these rulings at length below.

BACKGROUND

On March 11, 1986, a masked assailant shot Marion Pantzer while he attempted to rob a bar she owned in Houston. Shortly before the murder an African-American male entered the "Just Marion and Lynn's Club" in Houston. The bartender, Pedro Flores, noted that the man's presence was unusual, as the club catered to a lesbian clientele. After playing pool for a few minutes, the man-later identified as McGowen's cousin Kerwin Kindle-left.

At around 12:45 a.m., a man wearing a ski mask and carrying a long-barreled gun entered the bar. The gunman wordlessly motioned his weapon at Mr. Flores, which he understood as a demand for the money in the cash register. His stance, described by Mr. Flores as being in a "shooting position," left no question but that a robbery was in progress.

As Mr. Flores started walking toward the cash register, he noticed Ms. Pantzer sitting at the end of the bar talking to an employee. Ms. Pantzer slowly reached for the gun she usually had tucked into her pants. The next moments were ones of violent confusion. Mr. Flores opened the cash register, he saw Ms. Pantzer draw her weapon, he saw fire come from the gunman's pistol, and he then heard two shots. Ms. Panzer fell from her chair as the gunman fled. In the confused moments, Mr. Flores could not tell who had shot first.

The police did not arrive for about thirty minutes. Before they came, Kindle reentered the bar. Kindle lingered during the subsequent crime scene investigation. The police initially recovered Ms. Pantzer's weapon and a spent bullet casing on the floor near her body. The medical examiner later removed a hollow-point bullet from her body. The police, however, did not recover the bullet fired by Ms. Pantzer until Kindle pointed it out to them.

The police initially did not have any good leads on the gunman's identity, though they pursued several lines of investigation. The robbery and murder at the "Just Marion and Lynn's Club" was similar to several other crimes in the immediate vicinity. A group of men had targeted homosexual bars, adult entertainment establishments, and other businesses in the nearby area. Investigation divulged that a license plate number from a similar robbery approximated that of McGowen's car. McGowen, who already had a history of armed robbery, became a suspect in several crimes. A witness from an aggravated robbery identified McGowen from a photo array. The police obtained an arrest warrant for McGowen.

On April 29, 1986, the police arrested McGowen at his apartment, which was located only a half mile from the "Just Marion and Lynn's Club." The police told him that he was under arrest for one robbery, and a suspect in several others. A search of his apartment turned up evidence that incriminated him in other crimes, but not in the murder of Ms. Pantzer. The police took him to the station for questioning.

The police informed McGowen of his constitutional rights before interviewinghim. Initially, McGowen denied any involvement in robberies or any knowledge of the murder, but instead accused Kindle of committing those crimes. After about an hour and a half, McGowen signed a written statement admitting to his involvement in several robberies.¹

The police then questioned McGowen about the murder. McGowen initially blamed Kindle, but confessed when the police pointed out that Kindle had returned to the crime scene and found a bullet. McGowen admitted that he had murdered Ms. Pantzer, though he qualified that he only fired because she shot at him. A police officer summarized McGowen's confession into a written statement that McGowen signed. The statement provided the following account of the crime:

Prior to making this statement, I have been warned by Sergeant R.L. Maxey. I am giving this statement to Sergeant Maxey in regards to a shooting I was involved in. I do not remember what date it was, but it was a couple of months ago, My cousin, Kerwin, and I went to a bar on Richmond street just on the other side of Montrose. We went there to rob it. We went in Kerwin's car, which is a '75 or '76 Monte Carlo. It is brown. Kerwin parked his car down a side street from the bar. I got out of the car. I had a .38 revolver and a gray ski mask. I had the ski mask over my face.

When I walked in the bar, I saw an older white lady sitting by the bar. She stood up and started walking towards me. I started to walk towards her. All of a sudden, she came up with a gun, and she fired a shot at me. I did not see where she got the gun from, and I was not expecting it. As soon as I saw the gun, I started backing up, trying to get away, She then fired at me one time. I guess it was just a frightened reaction by me, but my gun went off. I did not even know if I had hit her because I kept running out of the club.

I ran to the car, and Kerwin and I drove back to the apartment. Sergeant Maxey has told me that Kerwin went back inside the club and talked to the police officers, but I did not know Kerwin did that. He told me he was going to drive by, but I did not know he went inside. That same night, I gave Kerwin the gun. I do not know what he did with it.

I want to say that I did not go in the club to hurt anyone. If the woman had not shot at me, I would not have gotten so scared and my gun would not have gone off.

The State of Texas charged McGowen with capital murder committed in the course of an attempted robbery. Trans. at 3, 5, 12. A grand jury also indicted McGowen and Kindle for aggravated robbery. Trans. at 3. McGowen stood trial in the 339th District Court, Harris County, Texas. The trial court appointed Ronald Mock and George Godwin to represent McGowen.²

Trial counsel's early strategy was to attack the only evidentiary factor that linked McGowen to the murder-his confession. Eyewitnesses had provided conflicting and vague accounts of the gunman. No physical evidence remained to link McGowen to the crime. The police never recovered the murder weapon. No one came forward to relate incriminating statements by the shooter. McGowen's confession was the only connection between him and the crime, though it was a strong one. Trial counsel's best chance in representing McGowen was to keep his police statements from coming before the jury.³

Trial counsel filed a "Motion for Hearing on Voluntariness of any Admission or Confession Whether Written or Oral." Trans. at 57. Trial counsel made general arguments, such as that McGowen was "substantially deprived of his freedom by the attendant conduct of the officers and the surrounding circumstances." Trans. at 57. The motion itself, however, did not give any strong reason for the suppression of his statements.

On May 14, 1987, four days before trial, the trial court held a hearing on the voluntariness of McGowen's confession. The police officers testified that they read McGowen's rights and assured that heknowingly and voluntarily confessed. McGowen also testified. He hinted that he had been using drugs in the hours before confessing. He explained that he had felt nervous, scared, and intimidated when he confessed. He claimed that the police never read him his rights. Trial counsel's questioning emphasized that the police violated state law because they did not take McGowen before a state magistrate before he gave his statements. The hearing, however, did not show any police overreaching, coercion, or malfeasance.

The trial court orally denied the motion to suppress. The trial court subsequently issued findings of fact and conclusions of law denying McGowen's attempt to suppress the confession. The trial court found no problem with the manner in which the police took McGowen's two statements. The trial court concluded that McGowen's two statements "were voluntary, given after being properly informed by the officers, and made after knowingly and intelligently waiving the rights afforded to a defendant in custody." Trans. at 170. Specifically, the trial court found: "There was no force, threats, coercion, or tricks used on the defendant, and there were no inducements or promise made to the defendant to cause him to make either statement." Trans. at 169. The trial court recognized that it would have been better practice for the police to take him before a magistrate to receive his warnings, "but the failure of the police to do so does not invalidate his two statements[.]" Trans. at 171.

The best hope for securing an acquittal was no longer available to the defense. Trial counsel thus adopted a strategy which, while still hinting that problems existed with the confession, would focus on McGowen's mental state when he fired the killing shot. In essence, trial counsel challenged the intent requirement for capital murder by arguing that he only responded in self-preservation when Ms Pantzer shot at him. Given McGowen's confession to the...