Puckett v. Epps, 09–70032.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation641 F.3d 657
Docket NumberNo. 09–70032.,09–70032.
PartiesLarry Matthew PUCKETT, Petitioner–Appellant,v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.
Decision Date19 May 2011

641 F.3d 657

Larry Matthew PUCKETT, Petitioner–Appellant,
Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.

No. 09–70032.

United States Court of Appeals, Fifth Circuit.

May 19, 2011.

[641 F.3d 658]

Sheryl W. Bey (Court–Appointed), Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, Keir M. Weyble (argued)(Court–Appointed), Cornell Law School, Ithaca, NY, for Petitioner–Appellant.Marvin Luther White, Jr., Asst. Atty. Gen. (argued), Jackson, MS, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Mississippi.Before JOLLY, SMITH and ELROD, Circuit Judges.PER CURIAM:

Petitioner Larry Puckett appeals the decision of the district court denying his petition for habeas relief under 28 U.S.C. § 2254. The district court granted a certificate of appealability on Puckett's claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and this court expanded the certificate to include

[641 F.3d 659]

whether the prosecution violated Puckett's due process rights by impeaching his post– Miranda silence. We AFFIRM.


A jury in Mississippi convicted Larry Puckett of the capital murder of Rhonda Hatten Griffis. On the day of the murder, Rhonda's husband, David, and their two children made several trips to the home of a neighbor to gather straw for David's business. While they were gone, Rhonda's mother, Nancy Hatten, who lived on the same property as Rhonda and David in a house about 150 feet from their trailer, heard a scream and a “thud” coming from the trailer. She went inside to call Rhonda, but got no answer. As she was walking to Rhonda's trailer, she saw David and their two children pulling into the driveway.

Hatten testified that when she walked into the trailer, Puckett raised a club and started walking toward her. The club was admitted into evidence at trial and identified by one of Puckett's former employers as the handle from a broken maul that he had seen in Puckett's truck. After David and the children came through the door, Hatten took the children to her house and dialed 911. Hatten reported that there was an intruder in her daughter's home and that she had left her son-in-law with him.

After Hatten left, David asked Puckett why he was in the house. Puckett said that he had hit a deer on the road and had come for help and to use the telephone. David called for Rhonda, but she did not answer. Puckett told him that she had gone to Hatten's house. David then called 911, and told the dispatcher that there was an intruder in his house, identifying the intruder as Puckett. David saw that Puckett had a club in his hand that had blood and “white stuff” on it. When David asked him about it, Puckett said the blood was from the deer. Puckett and David started struggling, and David got the club from Puckett, swinging it and hitting Puckett on the shoulder. While Puckett ran away, David went to the back of the trailer to look for a gun. He saw Rhonda on the floor with extensive injuries.

Puckett offered a different recount of the events that day. He claimed that he went to the house to get money for his truck note. According to Puckett, he and Rhonda had a sexual encounter the previous spring, but it had never occurred again, and they had not communicated since. When he knocked on Rhonda's door, she let him in and led him into the den. Rhonda told him it would be an hour and a half before David returned. Puckett claimed that Rhonda then let him act out a fantasy in which he undressed her while he remained clothed. After he undressed Rhonda, she saw her mother coming. When Rhonda saw her mother walking toward the trailer, she grabbed her clothes, ran into the other room, and told Puckett to get rid of her mother. Puckett admitted he used the club to scare Hatten. He testified that David walked in, realized what Puckett and Rhonda were doing, and began hitting Rhonda with the club, after which he removed her clothes. He alleged that David threatened that he would hurt Puckett's family if he ever said anything about the incident and hit Puckett with the club as he was leaving.

Puckett evaded police for two days. The clothing he was wearing when he was captured tested negative for human blood. There was no evidence of semen on Rhonda's body, and none of the hairs collected from Rhonda's body and the carpet where she was found matched Puckett's. Puckett

[641 F.3d 660]

had injuries consistent with being hit on the shoulder with a club.


The case was tried before a jury in Harrison County, Mississippi. At voir dire, the prosecutor told the jury that he was going to ask them to identify themselves as falling into one of three groups: pro-death penalty, anti-death penalty, and those who fall somewhere in between. Sixteen potential jurors responded that they had “a firm opinion in favor of the death penalty when inflicted according to law.” Nine potential jurors responded that they opposed the death penalty.

Before the prosecutor asked the third question, however, the attorneys and the trial judge began a lengthy discussion about the phrasing of the questions, the number of prosecution representatives allowed to participate in the questioning, and the need to make it clear to the jury that a capital trial is bifurcated into a guilt-innocence phase and a sentencing phase. After that discussion, the prosecutor asked “one last question”: “Will each of you tell me that if you are selected to sit on this jury that you will listen to the evidence, take the instructions of the Court and render what you think would be a fair and impartial verdict? Is there anybody that cannot do that?” None of the potential jurors responded.

The prosecutor never asked the third question about the death penalty, and neither Gloria Hawthorne nor Harvey Wesby answered either of the first two questions. It appears that no one noticed the state's failure. After questioning concluded, the state struck Gloria Hawthorne. Hawthorne had stated on her questionnaire that “I feel if you take another person [sic] life and the Court Can [sic] prove you did it, then you Should [sic] get the death penalty.” When asked to list her hobbies on the questionnaire, she said, “When Off [sic] from work I sleep half the day.” The state justified its strike by saying that she “was not responsive on her questionnaire; she was one way and not responsive in open court; on her off days, she likes to sleep half the day; I don't think she would be attentive.” Puckett raised a Batson objection, arguing that Hawthorne's alleged inattentiveness had never interfered with her employment. As to the death penalty, he argued that her answers were not inconsistent because “[the prosecutor's] question on the voir dire was whether or not they could put aside any feelings they had and view the evidence in light of the law.” The court overruled Puckett's objection, saying, “The Court is of the opinion that cause has been exercised without regard to race or gender and as such would not be challenged under Batson.

Later in the proceedings, the state struck Harvey Wesby on the basis that he too was silent during the group voir dire, as well as the fact that his juror questionnaire said, “It's okay” when asked about the death penalty, which the state characterized as “flippant.” During the discussion of this objection, it appears that there was a misunderstanding about whether Batson challenges can be made by a white defendant such as Puckett. The court then denied Puckett's challenge, saying, “The Court is of the opinion that strike was not based along racially motivated lines and as such will not be excluded under Batson.

The venire for Puckett's trial consisted of 112 people, eleven of whom were black. Out of the eleven, six were excused for cause. Consequently, there were only five black potential jurors remaining prior to the exercise of peremptory challenges. The state used all twelve of its peremptory challenges, four against black jurors. The

[641 F.3d 661]

fifth black juror was so far down the list that he was never reached during the selection process. Puckett was tried by an all-white jury.


Testimony presented at trial established that, when Puckett was apprehended but before he was given his Miranda warning, he commented, “This is a lot of law enforcement for somebody who just committed a burglary.” Puckett was later given a Miranda warning, after which he made a similar comment and then refused to make any further statement. Later that evening, after a second Miranda warning, Puckett described how he had evaded law enforcement for two days. He then added that he did not kill anyone, but had gone into the trailer to get money to pay a truck note. At trial, although he denied saying that he was there to burglarize the Griffises, he admitted saying that he had gone there to get money.

On cross-examination, the state questioned Puckett at length about why, if he was innocent, he hid for two days instead of reporting the murder immediately. For example, the state said, “And you didn't go to anybody nowhere on this earth and say, ‘Look, I want to tell you something; I just witnessed David Griffis beat his wife to death.’ You didn't do that, did you?” After being asked several times, Puckett finally responded that he was afraid and trying to hide from David. The state then questioned him on his pre– Miranda statement that he had committed a burglary. Later, the state asked Puckett why he did not mention the murder when he was arrested and there were policemen to protect him from David. He explained that he did not tell the police then because his mother had told him not to say anything. Finally, the state asked him about his silence, emphasizing the fact that he had waited at least a month before telling anyone, and that he had first told his lawyer rather than the police.

Shortly after these questions, Puckett objected to the line of questioning, arguing...

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