Miller v. Lockhart, PB-C-81-152.

• Citation: 861 F. Supp. 1425
• Decision Date: 16 August 1994
• Docket Number: No. PB-C-81-152.,PB-C-81-152.
• Parties: Eddie Lee MILLER, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

861 F. Supp. 1425

Eddie Lee MILLER, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB-C-81-152.

United States District Court, E.D. Arkansas, Pine Bluff Division.

August 16, 1994.

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E. Alvin Schay, Arkansas Death Penalty Resource Center, Inc., Ray E. Hartenstein, Little Rock, AR, for petitioner.

Kelly K. Hill and Jack Ward Gillean, Atty. General's Office, Little Rock, AR, for respondent.

AMENDED MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

On March 20, 1979, Eddie Lee Miller, an African-American male, was convicted by a Crittenden County, Arkansas, jury of capital felony murder in connection with the robbery and killing of W.F. Bolin, a white male, on November 3, 1978. Miller was sentenced to death by electrocution. On May 4, 1981, Miller filed a petition for writ of habeas corpus raising fourteen separate grounds for relief.

After carefully considering Miller's claims, this Court is persuaded that both the conviction and sentence are invalid for the following reasons which are discussed hereinafter:

1. During closing argument before Miller's jury, the prosecuting attorney improperly argued, among other prejudicial expressions, that Miller is a mad dog and a penalty less than death poses a threat to the jury.

2. The majority opinion of the Arkansas Supreme Court, in affirming the jury's verdict imposing the death penalty, employed a lesser standard than the standard applied in prior Arkansas Supreme Court cases, involving the death penalty, in reviewing the sufficiency of the evidence warranting the death penalty.

3. Miller has established that the prosecuting attorney in his case had a history of consistently and systematically excluding African-Americans as jurors through the use of peremptory challenges which decimated African-Americans as potential jurors. Dr. Robert M. Berry, Miller's expert witness, concluded that the decimation of African-Americans as potential jurors could not be explained as a result of random selection. Respondent offered no evidence to refute or rebut Miller's claim.

4. The trial court in requiring the jury to unanimously find mitigating circumstances deprived Miller of his Eighth and Fourteenth Amendment rights.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of November 3, 1978, Miller entered the vacuum cleaner and sewing machine sales and repair shop of W.F. Bolin in Blytheville, Arkansas. Bolin was alone. Miller consumed approximately ten minutes viewing and inspecting merchandise and disclosing information for a credit application just before robbing and killing Bolin by discharging four shots from a .38 caliber pistol. Miller seized a cash box which contained approximately fifty-five dollars.

Jim Hudson, who operates a barber shop adjacent to Bolin's store, heard the shots and verbal expressions "no, no" and recognized the voice as that of Bolin. Hudson decided to enter Bolin's store from a side entrance in order to determine what was taking place and offer assistance. As Hudson pushed open the door to enter, Hudson faced Miller who had both hands on the metal cash box in front of Hudson with "fingers on the bottom, thumbs on the top." Miller told Hudson "You get in here." But Hudson, instead, backed out of the door and stationed himself between the front door entrance to Bolin's store and the side door entrance he had just exited. Miller exited the side door and fled in the opposite direction from Hudson's position to a back alley and "placing the gun in front, apparently in his belt or his clothes. And then he ran." Hudson immediately reported the incident to the Blytheville Police Department and gave a description of Miller and described the clothing he was wearing.

During the afternoon of November 3, 1978, Blytheville Police officers, after being satisfied that Eddie Lee Miller was the person being sought, obtained an arrest warrant for Miller as well as a search warrant for Miller's personal residence. Miller was later charged by felony information with the crime of capital felony murder and was convicted on March 20, 1979.

Miller appealed his conviction and sentence to the Arkansas Supreme Court. The Arkansas Supreme Court affirmed the conviction. However, three justices of the seven judges, including the Chief Justice, dissented. Chief Justice Fogleman was of the opinion that the evidence was not sufficient to support a finding that Miller knowingly created a great risk of death to a person other than the victim; and that a jury could not have found this circumstance to exist without gross speculation. In a separate dissenting opinion in which Justice Mays joined, Justice Purtle was of the view that the evidence was deficient not only from the standpoint of knowingly creating a great risk of death to a person other than the victim, but equally as well that Miller did, beyond a reasonable doubt, commit the capital felony murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

The United States Supreme Court denied Miller's petition for writ of certiorari on March 30, 1981, with two justices dissenting. Miller v. State, 450 U.S. 1035, 101 S.Ct. 1750, 68 L.Ed.2d 232 (1981).

On April 20, 1981, Miller's execution date was set for May 20, 1981. A stay of execution from the Arkansas Supreme Court was sought on April 24, 1981, so that Miller could seek post-conviction relief from that court under its Criminal Procedure Rule 37. The application was denied by the Arkansas Supreme Court without an opinion on May 4, 1981, with one justice willing to grant the stay. On May 4, 1981, Miller filed an application for a stay of execution with this Court along with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On May 11, 1981, following a hearing on May 8, 1981, this Court stayed Miller's execution until further order of the Court in order to permit Miller to pursue post-conviction relief with the Arkansas Supreme Court.

On September 28, 1981, the Arkansas Supreme Court denied Miller permission to seek post-conviction relief pursuant to Rule 37, Arkansas Rules of Criminal Procedure. Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981).

On April 7, 1989, Miller filed his second amended petition for writ of habeas corpus in an effort to reflect the issues relied upon in view of changes in the law since the filing of his initial petition.¹ An evidentiary hearing was conducted by the Court on March 13, 14, and 15, 1991. However, the record remained open to allow the parties to proffer additional evidence, if desired.

DISCUSSION

I.

Miller asserts that he was denied due process of law and rights secured under the Eighth Amendment by the prosecuting attorney's improper and prejudicial remarks during closing argument at the sentencing phase of his trial. The remarks complained of, argues Miller, introduced factors that are wholly unrelated to the blameworthiness of Miller, thus, created the risk that the death sentence imposed was based on matters irrelevant to the sentencing process; impaired and prejudiced rights secured to Miller, i.e., right against compulsory self-incrimination; and minimized the jury's understanding and acceptance of the importance of its role in determining whether the death penalty was the appropriate punishment. The following constitute the expressions complained of in the order in which they occurred:

1. None of the members of the Bolin family have taken the stand because I think that you can see that what they would ask of you would not be proper. But I think that you know what their presence here is asking you to do. I think that you need to consider their wishes. That is one of the things you need to consider. I think you know what their wishes are without them taking the stand. (T. 884)

2. Now, Eddie Lee Miller is 27 years old. You won't have but two alternatives, life without parole or death by electrocution. He is 27 years old. I have no idea what his life expectancy may be. Your guess would certainly be as good or better than mine. Let's say close to 70. We are talking about 40 years, approximately in the neighborhood of 40 years or better, a little more or less in the penitentiary. I don't know that you would be doing him any favor there. I know that you are not doing the taxpayers any favor there. This is a tremendous burden also to put on the taxpayers to keep a man roughly 40 years, to provide food, clothing, shelter and guards. The cost of food, clothing, shelter and guards for a little more or a little less than 40 years, what do you think that is going to cost the State of Arkansas, you, you, you, the taxpayers, the people? What do you think the cost of that will be? Can you run it around in your head? (T. 886, 887).

3. Now, I think it would be quite simple at this stage of your deliberation when you go back to reach some type of what could be considered a compromise, that life without parole is a very serious strong penalty. I think that would be a compromise. I don't think that any one of you twelve people sitting there feel that would be proper. I think it would be a compromise. (T. 887).

4. Now, we have got him sitting over here. Today his head is down. His head wasn't down yesterday. He wants to argue. Has he expressed to you any regret for this act? Has he said I am sorry? Has he shown any remorse whatsoever to you? He has simply denied doing it. You know that he lied about that because you said he did. You found him guilty. Of course, the day after he was arrested, when he realized that he was caught he begged for a little mercy, or I would like to get back out on the street. I don't remember. I don't remember.... (T. 888).

Has he expressed any regrets to you, any remorse for putting to death execution style this 51 year old man? Has he even said to you I am sorry I did it? No. I think that you have

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