Palmer v. Clarke, 4:00CV3020.
| Decision Date | 09 October 2003 |
| Docket Number | No. 4:00CV3020.,4:00CV3020. |
| Citation | 293 F.Supp.2d 1011 |
| Parties | Charles Jess PALMER, Petitioner, v. Harold W. CLARKE, Director, State of Nebraska Department of Correctional Services, Respondent. |
| Court | U.S. District Court — District of Nebraska |
Steven E. Achelpohl, Omaha, NE, Michael A. Nelsen, Hillman, Forman Law Firm, Omaha, NE, for Charles Jess Palmer.
J. Kirk Brown, Kimberly A. Klein, Attorney General's Office-Nebraska, Lincoln, NE, for Harold W. Clarke.
Jon C. Bruning, Donald B. Stenberg, Attorney General's Office-Nebraska, Lincoln, NE, for Atty. Gen.
This matter is before the court on Charles Jess Palmer's third amended petition for a writ of habeas corpus. Filing No. 44. Charles Jess Palmer has been on death row since 1979. He has been convicted of capital felony murder and sentenced to death three times under Nebraska's Death Penalty Statute, Neb.Rev.Stat. § 29-2523.1 The court has carefully reviewed the voluminous record in this case and the numerous submissions of the parties at this and earlier levels of the proceedings and now concludes that Charles Jess Palmer has been sentenced to death in violation of the United States Constitution.
Palmer was tried and convicted of first degree murder under a felony-murder theory in 1979 for the death of Eugene Zimmerman. The state's case against Palmer in the first trial was based largely on circumstantial evidence. The evidence adduced at Palmer's trial shows that Zimmerman was found murdered in his residence above his coin shop in Grand Island, Nebraska, on March 6, 1979. State v. Palmer, 210 Neb. 206, 313 N.W.2d 648, 649 (1981) ("Palmer I"). The evidence also shows that before the trial, the victim's wife, Monica Zimmerman, and two other witnesses, Deanna Klintworth and Jim Mracek, had been hypnotized during pretrial interviews to refresh their recollections. Palmer I, 313 N.W.2d at 653; Trial I Tr., Vol. VI at 886-887. They all testified that they had seen Palmer in Grand Island at or near the time of the murder. Monica Zimmerman testified that she had seen Palmer and his wife and child in Grand Island on several occasions before the murder. Trial I Tr., Vol. III at 355. She testified that she had first seen Charles and Cherie Palmer at the coin shop in October 1978 and she identified Palmer as the man who had been at Zimmerman's residence and coin shop in late 1978. Id. at 345. Deanna Klintworth testified that she had seen a man, a woman, and a baby exit the Zimmerman house and coin shop at 4:45 p.m. on March 6, 1979. Trial I Tr., Vol. IV at 456-58. Jim Mracek testified that he had seen Zimmerman in the 7-Eleven coffee shop with a man, a woman, and a baby on that day. Trial I Tr., Vol. VI at 886.2 The testimony of the witnesses that had been refreshed under hypnosis was the only direct evidence that tied Palmer to the murder. Trial I Tr., Vol. III at 371, Vol. IV at 455-456.
The evidence also shows that earlier in the day on March 6, 1979, "C. Palmer" had received a ticket for an equipment violation at a highway checkpoint nine miles south of Hastings, Nebraska, which was midway between Grand Island, Nebraska, and Guide Rock, Nebraska, where Palmer was living at the time of the murder. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. III at 428. The owners of a dog farm where Palmer had been employed in Guide Rock testified that they last spoke with him on March 18, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. III at 299, 303-304, 317. Palmer had arranged for a neighbor to take care of the dogs on March 19, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. III at 676-678. The neighbor testified he believed Palmer left Guide Rock on March 19 or 20, 1979. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. III at 679.
The evidence adduced at the trial further shows that law enforcement authorities were later alerted to Palmer's whereabouts when a coin dealer in Austin, Texas, contacted the police after he purchased several items from Palmer, including items that had been stolen from Zimmerman's coin shop.3 Palmer I, 313 N.W.2d at 651-652; Trial I Tr., Vol. IV at 577, 580, 586-587. The police instructed the coin dealer to call them if Palmer were to initiate contact again. Palmer I, 313 N.W.2d at 651-652; Trial I Tr., Vol. IV at 589. Palmer later did so and the coin dealer immediately called the police. Palmer I, 313 N.W.2d at 651; Trial I Tr., Vol. IV at 579-580. The police officer testified that he did not have time to obtain an arrest warrant in the twenty minutes between the call and the arranged meeting. Palmer I, 313 N.W.2d at 652.
The jury returned a guilty verdict. Pursuant to the Nebraska death penalty statute in effect at the time, Neb.Rev.Stat. § 29-2521, a three-judge panel conducted a sentencing hearing. At the sentencing hearing, the prosecutor sought to apply two statutory aggravators under Neb.Rev. Stat. § 29-2523.4 Trial I Tr., Vol. VIII at 985. The prosecutor argued: (1) that the murder had been "committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of the crime," under Neb.Rev. Stat. § 29-2523(1)(b); and (2) that the murder was "especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence" under Neb.Rev.Stat. § 29-2523(1)(d). Id. Palmer's counsel conceded the applicability of the "murder to conceal crime" aggravator, stating, Trial I Tr., Vol. VIII at 988.
A three-judge sentencing panel sentenced Palmer to death, as provided in Neb.Rev.Stat. § 29-2520 (1980). Nebraska v. Palmer, No. 30-011, Hall Co. Clerk's Rec. ("St.Ct.File"), Vol. I at 173-83, Order of Sentencing (Aug. 27, 1980). The sentencing panel found that both aggravating factors applied. It found no mitigating circumstances applied and noted that "the defendant in this case has stood mute and offered no evidence of any mitigating circumstance whether or not such mitigating circumstance was described by the statute."5 Id. at 181.
Palmer's first conviction and sentence were reversed on appeal. Palmer I, 313 N.W.2d at 654-55. The Nebraska Supreme Court found the trial court had committed reversible error in admitting the hypnotically-induced testimony of Monica Zimmerman, Deanna Klintworth and Jim Mracek. Id. at 653.
Palmer was retried in 1982 and was again convicted. Between the first and second trials, Cherie Palmer, Charles Palmer's wife, had filed for divorce in Texas. The prosecutor sought to use her testimony at the second trial since it would no longer be barred by Nebraska's statutory ban on testimony by a spouse. Trial II Tr., Vol. I at 25-26. He successfully moved for a continuance of the trial once. Id. at 50. The divorce was granted in Texas on March 12, 1981, and the prosecutor moved for a second continuance in anticipation of an appeal of the divorce decree. Id. at 55; Ex. 1. The trial court overruled the second motion and the case proceeded to trial. Id.
The evidence adduced at the second trial again circumstantially linked Palmer to the murder. Importantly, Cherie Palmer's testimony was admitted over an objection that it violated spousal immunity. Id., Vol. II at 292-93. She testified that she, Charles Palmer, and their child traveled to Grand Island on March 6, 1979, to sell some diamond rings to Zimmerman. Id. at 309-11. She went on to testify essentially that Palmer murdered Zimmerman. Id. at 312-23. According to Cherie Palmer, Charles Palmer hit Zimmerman and took him upstairs. Id. at 314-16. She later heard a thump and a "course sounding voice ... a chant sort of voice." Id. at 320. Cherie Palmer's testimony was thus the strongest evidence that linked Palmer to the murder.6
A three-judge panel again sentenced Palmer to death, finding the same two aggravators that were found in the first trial. St. Ct. File, Vol. II at 419-34, Order of Sentence (July 19, 1982).
Palmer's second conviction was also reversed on direct appeal. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983) ("Palmer II"). The Nebraska Supreme Court found the trial court's admission of Cherie Palmer's testimony violated the spousal privilege statute. Id. at 282, 338 N.W.2d 281. Shortly after Palmer II was issued, but before Palmer's third trial, the Nebraska Legislature passed new legislation that limited the application of the spousal privilege. See 1983 Neb. Laws L.B. 696. The statute was amended to provide that the privilege could not be claimed "in any criminal case where the crime charged is a crime of violence." Neb.Rev.Stat. § 27-505(3)(A) (Reissue 1985).
Before his third trial Palmer filed a pro se action in federal district court raising an ex post facto and double jeopardy challenge. See Palmer v. Clarke, No. 4:84CV144, Filing No. 1, Petition for Habeas Corpus Relief (D.Neb. Feb. 29, 1984) ("Fed.Ct.File"). He contended that both his second trial violated double jeopardy and his impending trial would violate double jeopardy because the evidence, excluding inadmissible evidence, was insufficient to convict him in either the first trial or the second trial. He sought a stay to prevent the state from trying him again because a finding of insufficient evidence would amount to an acquittal and would trigger double jeopardy protections. Id. The federal district court first dismissed the claim as premature. Id. at Filing No. 2 (D.Neb. March 1, 1984). That dismissal was reversed by the Eighth Circuit in Palmer v. Drum, No. 84-8041 (8th Cir. May 10, 1984) (unpublished opinion). See Fed. Ct. File at Filing No. 8. The Eighth Circuit...
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