Parker v. Norris, s. 94-3022

• Decision Date: 11 October 1995
• Docket Number: 94-3104,Nos. 94-3022,s. 94-3022
• Citation: 64 F.3d 1178
• Parties: William Frank PARKER, Plaintiff-Appellant/Cross-Appellee, v. Larry NORRIS, Director, Arkansas Department of Correction, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1178

64 F.3d 1178

William Frank PARKER, Plaintiff-Appellant/Cross-Appellee, v. Larry NORRIS, Director, Arkansas Department of Correction,

Defendant-Appellee/Cross-Appellant.

Nos. 94-3022, 94-3104.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1995.

Decided Aug. 31, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

11, 1995. ^*

Jeffrey M. Rosenzweig, Little Rock, AR, argued, for appellant.

Olan W. Reeves, Little Rock, AR, argued (Kelly K. Hill, on the brief), for appellee.

Before WOLLMAN, Circuit Judge, FRIEDMAN, ^** Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

William Frank Parker, an Arkansas inmate under sentence of death, appeals the district court's denial of various claims raised in his petition for a writ of habeas corpus. The State cross-appeals the district court's decision that Parker was denied adequate psychiatric assistance at the penalty phase of his trial. We conclude that Parker was afforded constitutionally-mandated psychiatric assistance throughout his trial, and that the district court properly rejected his other claims. Accordingly, we remand with directions to deny his petition for a writ of habeas corpus.

I. Factual and Procedural Background.

Soon after Parker and Pam Warren divorced, Parker approached the home of Pam Warren's parents, James and Sandra Warren, dressed in combat fatigues and carrying a 9mm pistol. When James Warren and daughter Cindy Warren left the house, Parker attacked. Cindy sprayed mace at Parker, ran towards a neighbor's house, and escaped. Parker followed James into the house, where he shot and killed James and Sandra Warren. Parker then abducted Pam Warren from her apartment and took her to a police station, where he shot and seriously wounded Pam and a police officer before surrendering several hours later.

Parker was convicted of capital felony murder and sentenced to death for killing James and Sandra Warren. The Arkansas Supreme Court reversed because the killings were not committed during the course of an independent felony. Parker v. State, 292 Ark. 421, 731 S.W.2d 756, 758-59 (1987) (Parker I ). The State then retried Parker for the Warren homicides, this time charging him with premeditated capital murder. He was again convicted and sentenced to death. The Arkansas Supreme Court affirmed on direct appeal, Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989) (Parker II ), cert. denied, 498 U.S. 883, 111 S.Ct. 218, 112 L.Ed.2d 186 (1990), and denied postconviction relief. See Rosenzweig v. State, 301 Ark. 475, 784 S.W.2d 776 (1990); Parker v. State, No. Cr. 88-95, 1991 WL 19889 (Ark.), cert. denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 71 (1991).

Parker then commenced this federal habeas proceeding, raising nine claims. The district court first denied the claim that his retrial violated the Double Jeopardy Clause. Parker v. Lockhart, 797 F.Supp. 718 (E.D.Ark.1992). After a hearing, the court then granted habeas relief on Parker's penalty-phase psychiatric assistance claim and denied his remaining claims. Parker v. Norris, 859 F.Supp. 1203 (E.D.Ark.1994). Parker appeals the denial of his Double Jeopardy Clause claim, his guilt-phase psychiatric assistance claim, and three claims regarding the jury's finding of an aggravating circumstance. The State cross-appeals the grant of death penalty relief.

II. The Double Jeopardy Clause Issue.

In the first trial, Parker was convicted of capital felony murder for killing James and Sandra Warren "in the course of and in furtherance of" a burglary. Ark.Code Ann. Sec. 5-10-101(a)(1) (Michie 1987). The Arkansas Supreme Court reversed, concluding that Parker's burglary of the Warren home did not support a felony murder conviction. "[T]he burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective." Parker I, 731 S.W.2d at 759. On remand, the State convicted Parker of capital murder under a different subsection of the statute--killing "[w]ith the premeditated and deliberated purpose of causing [the Warrens'] death." Ark.Code Ann. Sec. 5-10-101(a)(3) (Michie 1987). Parker contends that his retrial violated the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment.

The Double Jeopardy Clause "does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289-90, 102 L.Ed.2d 265 (1988). There is an important exception to this rule. Retrial is barred if a conviction is reversed because the evidence was legally insufficient; reversal on that ground is equivalent, for double jeopardy purposes, to a verdict of acquittal. See Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2149-2151, 57 L.Ed.2d 1 (1978). Relying primarily on Burks, Parker argues that the Double Jeopardy Clause bars his retrial because the State presented legally insufficient evidence at his first trial to convict him of capital felony murder.

There is considerable logic in Parker's contention that his first conviction was reversed because of a failure of proof. But the Supreme Court has repeatedly refused to extend Burks as far as logic might permit. On the day Burks was decided, the Court explained that its sweep is limited to reversals "that necessarily establish the criminal defendant's lack of criminal culpability." United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197-98, 57 L.Ed.2d 65 (1978) (citation omitted). In Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), the Court held that reversal of a conviction because it is against the weight of the evidence does not bar retrial because "reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict." In Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812-13, 80 L.Ed.2d 311 (1984), the Court held that Burks does not bar a state court procedure in which a defendant convicted after a bench trial has a right to a jury trial de novo. And in reversing this court in Lockhart v. Nelson, the Court held that Burks does not bar retrial of a defendant whose conviction was reversed for the improper admission of evidence, even if the remaining evidence was insufficient to convict. 488 U.S. at 40, 109 S.Ct. at 290-91. These decisions make it clear that Burks is indeed an exception to the general rule that the State may retry a defendant whose conviction is reversed for "trial error."

That brings us to Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987), a case the district court found dispositive. The Montana Supreme Court had reversed defendant's conviction of incest, and barred his retrial on double jeopardy grounds, because the incest statute did not apply to sexual assaults against stepchildren. The Supreme Court reversed, concluding that the Double Jeopardy Clause did not bar retrial on the different charge of sexual assault because the state court's reversal was "on grounds unrelated to guilt or innocence." "[T]he State simply relied on the wrong statute.... It is clear that the Constitution permits retrial after a conviction is reversed because of a defect in the charging instrument." 481 U.S. at 403-04, 107 S.Ct. at 1827.

Parker argues that Hall can be disregarded as "a weird fact-based variance from double jeopardy jurisprudence." We disagree. Almost a century ago, the Supreme Court held that the Double Jeopardy Clause does not bar retrial of a defendant whose first conviction was reversed because of a legally defective indictment. United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 1195-96, 41 L.Ed. 300 (1896). In Burks itself, the Supreme Court commented, "We have no doubt that Ball was correct in allowing a new trial to rectify trial error." 437 U.S. at 14, 98 S.Ct. at 2149 (emphasis in original). Thus, the district court correctly proceeded to determine whether Parker's first conviction was reversed because of a "defect in the charging instrument," as in Hall, or because of an evidentiary insufficiency equivalent to a verdict of acquittal, as in Burks. See United States v. Todd, 964 F.2d 925, 929 (9th Cir.1992); United States v. Davis, 873 F.2d 900, 903-06 (6th Cir.), cert. denied, 493 U.S. 923, 110 S.Ct. 292, 107 L.Ed.2d 271 (1989).

In making that determination, the district court looked carefully at the two decisions of the Arkansas Supreme Court:

The issue before the Arkansas Supreme Court in Parker I was one of statutory construction, not sufficiency of the evidence. That is, the court considered whether the capital felony murder statute under which Parker was charged was applicable to his conduct as a matter of law, not whether the prosecution had failed to prove Parker's guilt beyond a reasonable doubt.

* * * * * *

Any ambiguity in Parker I was resolved by the Arkansas Supreme Court in Parker II. In that case, the court clearly disavowed any notion that its earlier opinion was based upon the failure of the state to prove its case. The conviction was overturned due to trial error "in charging and trying Parker under the wrong capital murder provision." Parker II, 779 S.W.2d at 157.

Parker v. Lockhart, 797 F.Supp. at 721, 722. We agree with this analysis. "In determining whether a reversal was based on evidentiary sufficiency [for double jeopardy purposes], we must rely on the reasons of the reversing court, whether state or federal." DuBois v. Lockhart, 859 F.2d 1314, 1318 (8th Cir.1988). Giving deference to the reversing court's characterization of its decision obeys the Supreme Court's guiding principle in deciding this kind of Double Jeopardy Clause issue:

From the standpoint of a defendant, it is at...