Nichols v. Scott

• Decision Date: 20 November 1995
• Docket Number: No. 92-2720,92-2720
• Parties: Joseph Bennard NICHOLS, Petitioner-Appellee, Cross-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1255

69 F.3d 1255

64 USLW 2399

Joseph Bennard NICHOLS, Petitioner-Appellee, Cross-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant,

Cross-Appellee.

No. 92-2720.

United States Court of Appeals, Fifth Circuit.

Nov. 20, 1995.

John Jacks, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellant.

Michael Kuhn, Bracewell & Patterson, Mark Maney, Wynne & Maney, Houston, TX, for appellee.

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

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellee, cross-appellant Joseph Bennard Nichols (Nichols) was convicted of capital murder and sentenced to death. After exhausting his Texas state court remedies, Nichols sought a writ of habeas corpus in the district court below and the court granted relief. Respondent-appellant (Respondent), the director of the Texas Department of Criminal Justice, now appeals to this Court. Nichols cross-appeals the district court's denial of certain of the remainder of his claims. We affirm in part and reverse the district court's grant of habeas corpus relief.

Facts and Proceedings Below

About 9:00 a.m. on the morning of October 13, 1980, Nichols, Willie Ray Williams (Williams), Charlotte Parker (Parker), and Evelyn Harvey (Harvey) drove to a spot in front of an apartment building near Joseph's Delicatessen and Grocery in Houston, Texas. Nichols and Williams mutually intended to rob this establishment, Nichols having suggested it as a target. Williams was armed with a .380 semi-automatic pistol; Nichols had a snub-nosed .38 revolver. Parker parked the car and Nichols and Williams got out and entered the deli. After entering, Nichols and Williams first went to the back of the store, and then approached the counter. Nichols got a corndog. Williams set a quart of beer on the counter near the cash register. Behind the counter was deli employee Claude Shaffer, Jr. (Shaffer). Nichols, and then Williams, each drew their respective pistols and pointed them at Shaffer.

When Shaffer saw the guns he began to bend over or squat down. Nichols then said something to the effect of "don't go for the gun" or "don't be doing it." Nichols then shot at Shaffer, and immediately thereafter Williams pulled the trigger on his gun, but it is unclear whether it then discharged. ¹ Shaffer then either fell or squatted down behind the counter. Nichols and Williams ran to the door. Nichols exited. Williams either exited or partially exited and then, according to his testimony at Nichols' trial, turned and fired once at Shaffer, who was still squatting behind the counter. Williams testified that Shaffer fell back, that he (Williams) went behind the counter to Shaffer, turned him over, grabbed the deli's cash box, and ran out of the deli, carrying his gun and the cash box. ² He was picked up by Parker and Harvey, got into the car with them, and they drove around the side of the deli building where they saw Nichols, who then got in the car with them. Harvey testified that Nichols told them "he had shot the man" and "he thought he shot him in the chest," and that Williams said he had run back into the deli and shot the man. Parker testified that Nichols said "I think I hit him in the chest," and that Williams said "he [Williams] shot the man in the shoulder." ³ A few days later, Williams, Nichols, Parker, and Harvey were arrested.

The testimony of the Harris County Medical Examiner, Dr. Espinola, established without contradiction that Shaffer died from a single gunshot wound that entered his "left upper back about seven and three fourths [inches] to the left of the midline and three and one half inches below the top of the shoulder" and exited--without hitting any bones or "hard objects" within the body--"on the right side of the chest, 18 and one half inches from the right of the midline and 11 inches below the top of the shoulder." The wound would have caused "almost immediate disability" or "collapse." Shaffer also had a superficial two and a quarter inch slanting laceration on the right side of his head, which was "consistent with a grazing type of gunshot wound" and "could also be consistent with a person that hit their head on the corner of an object or anything like that in a fall." The head wound was not disabling. No bullet or bullet fragment was found in or on Shaffer's body. Two empty .380 cartridge cases--ejected from Williams' pistol--were found in the deli, as was also a whole .380 brass-jacketed projectile or bullet, which had been fired from Williams' weapon. A whole, unfired .380 brass-jacketed bullet and cartridge (with firing pin indentation on the cartridge rim) was found just outside the deli door. Lead bullet fragments were found on the inside of the deli door and near there on the floor along with brass jacket fragments. Also found in the deli--in a stack of comic books behind the counter--was a whole lead bullet that had been fired from a .38-caliber weapon. This was a revolver-type bullet that had never been jacketed. ⁴

In January 1981, Williams pleaded guilty to a charge of capital murder of Shaffer, ⁵ and, accordingly, the trial court directed the jury to return a verdict of guilty at the guilt/innocence phase of his trial. As evidence of his guilt, the state presented Williams' written confession, as well as the testimony of several witnesses including Dr. Espinola. Pursuant to the court's direction the jury returned a verdict of guilty. At the subsequent punishment phase of Williams' trial, the defense presented Williams' testimony and the testimony of five witnesses concerning Williams' nonviolent character. The defense also called Nichols during the punishment phase, but Nichols asserted his Fifth Amendment privilege and declined to testify. The punishment charge included no instruction respecting the law of parties. The jury returned a verdict at the punishment phase of Williams' trial answering in the affirmative each of the three special issues then provided for by Tex.Code Crim.Proc. art. 37.071(b). ⁶ Pursuant to art. 37.071(e), Williams was accordingly sentenced to death. His conviction and sentence were affirmed on appeal. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984).

Nichols was also indicted for the capital murder of Shaffer. ⁷ In July 1981, Nichols was tried before a jury on his plea of not guilty. Williams testified as a defense witness at the guilt/innocence stage of this trial, and his testimony was generally consistent with his prior testimony and statement. ⁸ The jury charge at the guilt/innocence stage included instructions on the Texas law of parties. ⁹ Based in large part on Williams' testimony, the defense argued that the fatal shot was fired by Williams from the deli door when he came back in and got the cash box, and that Nichols was not guilty under the law of parties because the planned robbery was over and Williams was acting independently. The state argued that Williams' testimony that he shot Shaffer from the door when he came back in was not worthy of belief "because he's got to shoot through the cash register and all that junk to get here." The state also argued that Nichols told Harvey that "he shot first, that he shot the man in the chest, in the chest area, the body, not in the head, not in the leg, not in the arm, but in the chest area, the body. That's what the defendant did." However, the main thrust of the state's argument was that regardless of who fired the fatal shot, and regardless of whether Williams' testimony was credited, Nichols was guilty under the law of parties. The jury returned a verdict finding Nichols guilty of capital murder. The punishment stage of the trial then ensued, testimony was presented by the state and the defense, and the case was submitted to the jury on the three statutory special issues (see note 6, supra ). The punishment charge included no instruction on the law of parties. After considerable deliberation, the jury foreman announced that the jury had arrived at a verdict on two of the special issues, and tendered to the court a verdict form in which the first and third special issues were each answered "yes," and the second special issue (future dangerousness) was not answered. The court ruled the verdict was incomplete, refused to accept it, and returned the jury for further deliberations. The jury eventually sent a note stating "the jury is still unable to reach a verdict on the remaining special issue." Thereafter, defense counsel moved for a mistrial because the jury could not reach a verdict. The court explained to Nichols personally that if a mistrial were declared then the matter would be retried before another jury. After ascertaining that Nichols understood and that he personally requested and moved for a mistrial, the court, on July 31, 1981, called the jury back in, announced that a mistrial had been declared, and formally discharged the jury.

The assistant district attorney trying the case thereafter interviewed some of the jurors and, as the district court below found, "learned from those jurors that whether or not Nichols was the 'triggerman' had caused problems for the jury in considering the death penalty." Nichols v. Collins, 802 F.Supp. 66, 75 (S.D.Tex.1992).

In February 1982, Nichols was tried before another jury on the same indictment. Generally the same evidence was presented as at his first trial in July 1981. The prosecutor was the same as in that first trial. In the guilt/innocence phase, Williams was called as a defense witness but claimed his Fifth Amendment privilege and refused to testify. The defense then put in evidence Williams' testimony as given at Nichols' first trial. ¹⁰ At the close of the evidence on the guilt/innocence stage of the trial, the trial court extensively instructed the jury on the Texas law of parties (see note 9, supra ) such that the jury...