Sharp v. Johnson, 94-10605

• Decision Date: 26 February 1997
• Docket Number: No. 94-10605,94-10605
• Parties: Michael Eugene SHARP, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 282

107 F.3d 282

Michael Eugene SHARP, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 94-10605.

United States Court of Appeals, Fifth Circuit.

Feb. 26, 1997.

Marsha Lee Rutenbar, McKinney, TX, for petitioner-appellant.

Dana Emmert Parker, Assistant Attorney General, Dan Morales, Attorney General, Austin, TX, for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and KING and DUHE, Circuit Judges.

POLITZ, Chief Judge:

Michael Eugene Sharp, a Texas death row inmate, appeals the district court's denial of habeas corpus relief. For the reasons assigned, we affirm.

Background

Late in the evening on Friday, June 10, 1982, Sharp forcibly abducted Brenda Kay Broadway and her two daughters, Selena Elms, then 14 years of age, and 8-year-old Christy Elms, from a car wash near Kermit, Texas. Sharp then drove them to an isolated location where he forced Broadway and Selena Elms to perform oral sex on each other and then stabbed Broadway and Christy Elms to death. Selena managed to escape and, after she spent the night alone in the woods, oil field workers discovered her the next morning, unclothed and suffering from exposure.

Sharp was arrested on June 16, 1982. On June 19, 1982, he was placed in a police line-up and Selena identified him as the murderer of her mother and sister. On June 21, 1982, a Winkler County grand jury returned three indictments charging Sharp with the capital murders of Brenda Kay Broadway and Christy Elms and the aggravated kidnaping of Selena Elms.

Upon motion for change of venue the defendant's trial was moved to Lubbock, Texas where Sharp was tried and convicted of the murder of Christy Elms. Because of a defect in the indictment the death penalty could not be imposed and Sharp was sentenced to life imprisonment. On November 17, 1982, the Winkler County Grand Jury returned a new indictment charging Sharp with the capital murder of Brenda Kay Broadway. The defense moved for change of venue and the case was transferred to Crockett County.

Several months later Sharp was interviewed by Detective Jerry Smith of the Odessa Police Department. Smith, who had interviewed Sharp prior to his first trial, was investigating the disappearance of Blanca Arreola, a young, pregnant Odessa woman who had been missing since May of 1982. Although the record is somewhat unclear whether Sharp admitted to murdering Arreola, he led authorities to her buried body in a remote location in Ector County. The position and location of 18-year-old Arreola's naked body was exactly as described in Sharp's statement to Smith.

At Sharp's trial for Broadway's murder the state presented testimony from several women that Sharp had attempted to lure them into his truck on the evening of the murders. This testimony was followed by that of Selena Elms, by far the most compelling evidence against Sharp, who unqualifiedly identified Sharp as the murderer of her mother. The state also offered evidence that Sharp's truck contained hairs matching that of the three victims, that mud at the scene of the crime was consistent with mud at the oil rig where Sharp worked, and that traces of human blood had been found on Sharp's knife.

On May 19, 1983, Sharp was found guilty of murdering Broadway and the punishment phase of the trial began. The state presented evidence of the Broadway and Christy Elms murders and of Sharp's four prior state felony convictions, including two convictions for aggravated robbery with a deadly weapon. The state also offered the testimony of Detective Smith regarding Sharp's involvement in the Arreola murder. Defense counsel's objection to this testimony, on the grounds of surprise and its nature as an extraneous offense, was overruled.

The defense presented no evidence during the punishment phase. The jury returned affirmative answers to the two special issues that same day and Sharp was sentenced to death. Sharp's conviction and death sentence were affirmed on direct appeal by the Court of Criminal Appeals. ¹ On May 2, 1989, Sharp filed for postconviction relief in state court. The trial court denied relief and the Court of Criminal Appeals affirmed in an unpublished order which adopted the trial court's findings and conclusions. ²

Sharp then filed a habeas corpus petition in the federal district court. The magistrate judge, after several evidentiary hearings, filed findings of fact and legal conclusions, ultimately adopted by the district court, which recommended that Sharp's petition for habeas relief be dismissed. The district court granted Sharp a certificate of probable cause to appeal. ³ This appeal followed.

Analysis

We note at the outset that the magistrate judge found Sharp had not procedurally defaulted any of his claims because the Texas Court of Criminal Appeals, the last state court to review Sharp's case, stated no grounds for its denial of writ. The state has proffered on appeal, however, and the defendant confirms, that the Court of Criminal Appeals issued an unpublished opinion along with its order in which it adopted the findings and conclusion of the state district court, including rulings on a number of procedural defaults. This written order is of record and constitutes a clear and express reliance on state procedural bars by the last Texas court to consider Sharp's case. ⁴ Accordingly, we must apply the doctrine of procedural default, as dictated by that order, to the issues raised in this appeal.

We first consider Sharp's claim that evidence of Blanche Arreola's murder, an unadjudicated prior offense, was presented during the punishment phase of Sharp's trial in violation of Sharp's fifth, sixth, and fourteenth amendment rights. This issue, insofar as the contemporaneous objections by counsel were not based upon the grounds urged on appeal, is procedurally barred. Because our recent decision in Amos v. Scott ⁵ forecloses Sharp's argument that the Texas contemporaneous objection rule is not an independent and adequate state ground upon which to base a procedural bar to federal review, Sharp is relegated to showing cause and prejudice for his procedural default. ⁶

To show cause, Sharp must demonstrate that " 'some objective factor external to the defense impeded counsel's efforts' " to lodge timely the appropriate objection in the trial court. ⁷ Sharp urges that trial counsel was surprised by the evidence of the Arreola murder because the prosecution withheld the relevant files and denied in a pretrial hearing that such evidence existed. Assuming these allegations of prosecutorial obstruction to be true, it cannot be gainsaid that the evidence of the Arreola murder was known to Sharp. He gave the police statements about the murder and led them to the remote location where Arreola was buried, assisting them in the recovery of the body. Because Sharp possessed at the time of trial sufficient information upon which to base a proper objection irrespective of the state's conduct, we find no cause for the failure to lodge a proper and timely objection. ⁸

Sharp also contends that trial counsel's failure to preserve this error constitutes ineffective assistance of counsel under the two-pronged test of Strickland v. Washington, ⁹ thus establishing cause for the procedural default. ¹⁰ We find neither deficient performance nor prejudice in this instance. Again, the circumstances surrounding the discovery of the Arreola murder evidence were well known to Sharp; thus, any error which occurred due to Sharp's withholding this information from his attorney was not the fault of counsel and did not constitute deficient performance. ¹¹ Furthermore, in light of the other evidence introduced during the guilt and punishment phases demonstrating Sharp's savage and depraved disposition and the escalating nature of his depredations, we cannot conclude that but for the admission of the Arreola murder evidence there was a reasonable probability that the jury would have responded differently in the penalty phase.

We next address Sharp's contention that he was denied his sixth, eighth and fourteenth amendment rights to a fair and impartial trial due to pretrial publicity and its effect upon the jury panel. Sharp's counsel did not move for a change of venue or a mistrial; thus, the issue was adjudged procedurally defaulted in state court. As cause to justify this default Sharp again invokes ineffectiveness of counsel under Strickland.

Our review of the record reveals that counsel's performance was not objectively unreasonable; only 15 of 72 prospective jurors had an opinion about Sharp's guilt and all of the jurors who ultimately sat on Sharp's trial were accepted by Sharp's counsel only after lengthy and probing questioning. While it is true that trial counsel allowed onto the jury four jurors who knew Sharp had been convicted of Christy Elms' murder, the record reveals, and the magistrate judge found, that the trial counsel's confidence in the ability of those jurors to act impartially was well-founded and objectively reasonable in light of their sworn responses during voir dire. In light of this finding, and given the deference customarily owed to the tactical decisions of trial counsel in jury selection, ¹² we cannot conclude that counsel's performance was deficient.

We next consider whether trial counsel was ineffective in failing to discover and present relevant mitigating evidence at the punishment phase. The mitigating evidence involved is that Sharp was a family man and a good son. Given the horrendous circumstances surrounding the murder for which he was on trial, and the other evidence presented at the punishment phase, even if we assume deficient performance we cannot conclude that the prejudice prong of Strickland has been satisfied. Simply put, we do not find it reasonably probable that the meager mitigating...