Miller v. Lockhart

• Decision Date: 27 October 1995
• Docket Number: No. 94-3264EA,94-3264EA
• Citation: 65 F.3d 676
• Parties: Eddie Lee MILLER, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 676

65 F.3d 676

Eddie Lee MILLER, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.

No. 94-3264EA.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1995.

Decided Sept. 7, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

27, 1995. ^*

Kelly K. Hill, Assistant Attorney General, argued (Pamela Rumpz, Little Rock, AR, on the brief), for appellant.

Ray E. Harstein, Little Rock, AR, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, MURPHY, Circuit Judge, and DAVIS, ^** District Judge.

RICHARD S. ARNOLD, Chief Judge.

The Director of the Arkansas Prison System challenges the District Court's ¹ order granting Eddie Lee Miller's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The District Court set aside both Miller's conviction and his sentence because of errors in the jury-selection process, and set aside Miller's sentence on the additional ground of errors in the penalty phase of the trial. The District Court's opinion is reported at 861 F.Supp. 1425 (E.D.Ark.1994). We affirm the judgment.

I.

Miller was convicted on March 20, 1979, of the murder of W.F. Bolin. Miller is black, and Bolin was white. The venire summoned for Miller's trial consisted of 147 people, 67 of whom were black. However, only 73 veniremen actually showed up at the courthouse on the day of the trial, 31 of whom were black. After excusals by the Trial Court, 48 panel members, 21 of whom were black, remained. During voir dire, several more veniremen were successfully challenged for cause, leaving only 13 black potential jurors. Ten of those veniremen, nine who would have been jurors and one who would have been an alternate, were removed through peremptory strikes by the prosecutor. Miller was tried by a jury made up of nine whites and three blacks.

During the trial, the state contended that Miller went to Bolin's small business intending to rob Bolin. Miller allegedly spent about ten minutes looking over merchandise and filling out a credit application before forcing Bolin into the back room of his business, where Bolin was shot with a .38 caliber pistol.

Jim Hudson, the barber next door, heard the shots and came to investigate. Entering the side door of Bolin's business, Hudson came face-to-face with a black man who was holding Bolin's metal cash box. The man ordered Hudson into the shop, but Hudson thought better of it and backed out of the door. The man then fled the building, placing the gun in his belt or his clothes. Hudson could not identify Miller as the man who met him at the side door.

The jury found Miller guilty of capital felony murder. At the penalty phase of the trial, the assistant prosecutor delivered a zealous closing argument in favor of the death penalty. He stated that Bolin's family members who were in the courtroom wanted Miller executed, though none of them had testified to that desire. He asked that the jury consider the cost of keeping Miller, who was twenty-seven years old at the time, in prison for life as opposed to executing him, though no evidence was taken on the subject. Then he commented on Miller's failure to take the stand and ask for mercy in the penalty phase of the trial. Next he referred to Miller as a mad dog, and said "you don't do but one thing with a mad dog. You put him to death...." And, according to counsel, Miller was not only a mad dog, but a mad dog who had a history of escaping from jail. Thus, to sentence Miller to life imprisonment would be "taking a terrific risk."

The jury was instructed to make certain findings regarding the existence or non-existence of aggravating circumstances and mitigating circumstances, and to weigh them against one another. However, the mitigating-circumstances instruction fashioned by the trial court required the jury to find unanimously that a mitigating circumstance existed before it could enter into the equation.

The jury found that four aggravating circumstances existed: Miller had previously committed a violent felony, Miller committed the murder for pecuniary gain, Miller created a great risk of death to a person other than the victim when he killed Bolin, and Miller committed murder in order to avoid or prevent arrest or to effect escape from custody. No mitigating circumstances were found to exist. Miller was sentenced to die in the electric chair. His conviction and sentence were upheld by the Arkansas Supreme Court on both direct and collateral review.

II.

The District Court set aside Miller's conviction and sentence because the prosecutor used his peremptory strikes to exclude blacks from the jury in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). ² Swain established that prolonged "purposeful or deliberate" exclusion of blacks "as jurors in the administration of justice violates the Equal Protection Clause." Id. at 203-04, 85 S.Ct. at 826. In order to establish a prima facie case under Swain, a habeas petitioner must show that, over time,

the prosecutor perverted the peremptory challenge system by using his challenges "to exclude blacks from the jury 'for reasons wholly unrelated to the outcome of the particular case on trial,' or to deny to blacks 'the same right and opportunity to participate in the administration of justice enjoyed by the white population.' "

Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987) (quoting Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69 (1986) (quoting Swain, 380 U.S. at 224, 85 S.Ct. at 838)). Swain does not turn on the prosecutor's reasons for exercising his challenges in a particular case. Instead it created a presumption that the prosecutor is not using his strikes in a racially improper manner, but rather to "obtain a fair and impartial jury." Ibid. (citing Swain, 380 U.S. at 222, 85 S.Ct. at 837). "That presumption may be overcome by showing that the prosecution has systematically excluded blacks from petit juries over a period of time ...," ibid. (citing Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38), or where the prosecutor volunteers a reason for exercising his peremptories, and that reason is a pretext for racial discrimination. Ibid.

In challenging the District Court's order upholding Miller's Swain claim, the State asserts initially that much of the evidence that Miller relied on in the District Court should have been barred because it was not first presented to the state court. ³ Relying on Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the State asserts that Miller should be limited to the record created in the trial court and the Arkansas Supreme Court. In Keeney, the Supreme Court held that "a federal habeas petitioner must fully develop the factual record upon which he relies in his state court proceedings." Blair v. Armontrout, 976 F.2d 1130, 1141 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993) (citing Keeney, 504 U.S. at 7-11, 112 S.Ct. at 1719-20). Failure to do so may "only be excused on a showing of cause and prejudice or a fundamental miscarriage of justice." Blair, 976 F.2d at 1141-42. Thus, the State would have us bar from consideration all of Miller's statistical evidence regarding jury-selection practices in Crittenden and Mississippi counties, the testimony of Miller's expert witness regarding those practices, and the affidavits and testimony of several practicing attorneys in those counties regarding the use of peremptory challenges to exclude blacks from juries in those counties.

We need not decide whether Keeney could have applied to establish a procedural bar to additional evidence in this case, because the State waived whatever application it might have had. Procedural bars to federal court habeas corpus review, including the one created by Keeney, must be raised in a timely manner, or they are waived. ⁴ Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1124, 130 L.Ed.2d 1087 (1995). When the evidentiary hearing was requested and granted, the State offered no opposition. When a private investigator and an expert were appointed by the Court, at public expense, to develop Miller's Swain claim, the State did not oppose their appointment. During the three-day evidentiary hearing in the District Court, which dealt almost exclusively with Miller's Swain claim, the State never once raised an objection to the admissibility of this evidence. In fact, all of the evidence the State now challenges was introduced by stipulation, a fact which virtually destroys any later challenge to its consideration. Cf. United States v. Mezzanatto, --- U.S. ----, ----, 115 S.Ct. 797, 802, 130 L.Ed.2d 697 (1995) ("evidentiary stipulations are a valuable and integral part of everyday trial practice").

The State did not raise an objection to this evidence until its post-hearing brief. At the oral argument in this Court, the State's counsel stated that one explanation for the objection's coming so late was that the State thought the evidence in the hearing would address a different issue: whether blacks were systematically excluded from venires. However, during the evidentiary hearing, the State's counsel (a different lawyer from the one at oral argument) stated, in one of his objections, that certain evidence was beyond the scope of the hearing because it addressed systematic exclusion of blacks from venire panels, not peremptory challenges. The only issue before the Court, he contended, was "the State's use of peremptories." We therefore reject the explanation that the State did not object because it thought the evidence related to some subject other than peremptory challenges.

This point has not been properly preserved. The State was given the opportunity to refute Miller's evidence with evidence of its own, both at the hearing and later if it so wished, but chose...