Skillern v. Estelle

• Decision Date: 05 December 1983
• Docket Number: No. 82-2492,82-2492
• Citation: 720 F.2d 839
• Parties: Doyle Edward SKILLERN, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 839

720 F.2d 839

Doyle Edward SKILLERN, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-2492.

United States Court of Appeals Fifth Circuit.

Dec. 5, 1983.

Shannon E. Salyer, Corpus Christi, Tex. (court-appointed), for petitioner-appellant.

Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, TATE and JOLLY, Circuit Judges.

TATE, Circuit Judge:

The petitioner Skillern, a Texas state prisoner sentenced to death, appeals from the denial without an evidentiary hearing of his application for federal habeas relief. 28 U.S.C. Sec. 2254. Skillern and a codefendant Sanne were convicted of murdering Patrick Randel, a state narcotics agent. The victim Randel and the codefendant Sanne had been sitting in Randel's car at a roadside park when the petitioner Skillern drove up, immediately following which the codefendant Sanne shot and killed Randel. In arguing for reversal on his appeal, the petitioner raises three groups of contentions:

I. that his death penalty was unconstitutionally imposed under Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in the absence of sufficient evidence of his own personal culpability for the allegedly unexpected act of the codefendant triggerman in shooting the victim, and under instructions that allegedly permitted the jury to impute to Skillern the triggerman's intent to kill the victim;

II. that the district court improperly denied him an evidentiary hearing on his allegations that he was denied due process and the effective assistance of counsel because the denial of a continuance forced a newly-appointed defense counsel to go to trial on the capital charge three weeks after his appointment; and

III. that evidentiary error of constitutional magnitude rendered the sentencing hearing fundamentally unfair and violative of due process, because of the admittedly erroneous admission into evidence of the allegedly expert opinion of a forensic pathologist that there was a probability that Skillern would commit future criminal acts of violence and would constitute a continuing threat to society; and that the sentencing hearing was similarly infected by the admission into evidence of an indictment for murder with malice in an earlier offense, when Skillern had then been convicted of the lesser offense of murder without malice.

Although these contentions are not insubstantial, we find no error under the circumstances shown by the denial of the petitioner's Sec. 2254 application without an evidentiary hearing.

Factual context

The victim Randel, a state narcotics agent, had been working undercover to set up a purchase of illegal drugs from Skillern and his codefendant Sanne. The day before the killing Skillern and Sanne had become concerned that Randel might be a state informant. Nevertheless, the three had met in Randel's motel room, where other narcotics agents eavesdropped on the conversation from an adjoining room.

Sanne and Skillern showed the officer a sample of the drugs they intended to sell. The officer then asked them how they wanted to handle the deal, and one of the defendants replied, "Let's go some place where we can talk business." Leaving the State money that was to be used for the transaction in the motel room, Randel drove off in his car with Sanne as passenger, while Skillern followed in another automobile. Approximately an hour later, Skillern and Sanne returned, and Sanne was seen entering Randel's motel room. They then drove off.

A few hours later Randel was found shot to death in his locked car at a roadside park twenty to twenty-five miles distant from the motel. About four hours later, Skillern and Sanne were arrested. Skillern had the State purchase money and Randel's gun in his possession, while Sanne was in possession of Randel's credit cards and other effects.

Skillern and Sanne were indicted for intentionally causing the death of Randel in the course of committing and attempting to commit a robbery, a capital offense. Tex.Penal Code Ann. Sec. 19.03 (Vernon 1974). At an initial trial, at which neither testified, Skillern and Sanne were found guilty; in the sentencing hearing, the jury assessed a life sentence for Sanne (who had a minor criminal record) and a death sentence for the petitioner Skillern (whose criminal record included a prior killing). On direct appeal, the convictions were reversed because of a failure to sequester the jury. Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977).

The present conviction results from a retrial, at which Sanne now took the stand and confessed to firing the gun that killed Randel. According to Sanne, Randel struck him on the face and unexpectedly pulled a gun on him, following which Sanne shot him six times in the chest and abdomen. (Under this version of the crime, Skillern points out, his own personal participation was at most limited to a planned robbery and did not encompass the unexpected killing of Randel by Sanne.) On this second trial, the jury again found both defendants guilty, and in the sentencing phase the death penalty was assessed against both defendants. The convictions and Skillern's death sentence were affirmed on direct appeal, but Sanne's death sentence was reformed to life imprisonment on the basis of double jeopardy. Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980), cert. denied, Skillern v. Texas, 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 432 (1981). Exhausting state habeas proceedings, Skillern now applies for federal habeas relief. 28 U.S.C. Sec. 2254.

As previously noted, the petitioner Skillern contends that the district court erred in denying him federal habeas relief, relying upon three principal groups of contentions, which respectively concern: I. The Enmund issues; II. The denial of an evidentiary hearing on his contentions that he was denied the effective assistance of counsel; and III. Erroneous evidentiary rulings of constitutional magnitude in the sentencing hearing.

I. The Enmund Issues

In Enmund v. Florida, --- U.S. ----, ----, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held that the Eighth Amendment does not permit "imposition of death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Enmund had been sentenced to die for a murder that occurred during the course of a robbery in which he was the getaway car driver. In holding the death penalty constitutionally excessive for Enmund's criminal conduct, the Court observed that "[t]he focus must be on his culpability, not on that of those who committed the robbery and shot the victims," --- U.S. at ----, 102 S.Ct. at 3377 (emphasis added by the Court), and it concluded that Enmund's death penalty was invalid "in the absence of proof that Enmund killed or attempted to kill" or "intended or contemplated that life would be taken," --- U.S. at ----, 102 S.Ct. at 3379.

In Bell v. Watkins, 692 F.2d 999, 1012 (5th Cir.1982), we summarized Enmund as holding "that under the eighth amendment a death sentence may not be imposed on someone who neither committed the homicide, attempted to commit the homicide, nor participated in the plot to kill the victim." Similarly, in Clark v. Louisiana State Penitentiary, 694 F.2d 75, 76-77 (1982), reh. denied, 697 F.2d 699 (5th Cir.1983), we interpreted Enmund as holding that "the Eighth Amendment does not permit imposition of the death penalty upon one who participates in a robbery but does not kill or contemplate the taking of a life." In the latter case, although not on Enmund grounds (see note 6, infra ), we vacated a death sentence because of instructions that unconstitutionally permitted conviction of first-degree murder on the basis of a coconspirator robber's killing, even absent specific intent to kill by the defendant sentenced to death.

Based upon the principles enunciated and applied in these decisions, the petitioner Skillern raises two principal contentions: A. that the evidence was insufficient to subject him to the death penalty because it does not show that he personally had taken life, attempted to take life, or intended to take life; and B. that, in any event, the instructions on which the case was submitted to the jury permitted it to assess the death penalty against him on the basis of his confederate Sanne's intentional killing of the victim and absent any requirement that the jury find Skillern himself had killed or had personally contemplated that Sanne would murder the victim.

A. Sufficiency of the evidence

Skillern points out that the uncontradicted testimony of Sanne, his codefendant and his accomplice in the prospective drug transaction, is to the effect that Sanne himself had not planned to kill the narcotics officer before the two had driven in the agent's vehicle to the roadside park, and that the killing of the agent had resulted, without prior premeditation by Sanne, when the agent had unexpectedly drawn a pistol on Sanne and had struck him. The jury was not, of course, required to believe Sanne's account of the incident.

Assuming the jury was properly instructed, we find that a rational jury could find beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution, Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2793, 61 L.Ed.2d 560 (1979), that Skillern had agreed in advance with Sanne not only to rob Randel, but also to kill Randel, the suspected police informant, after they would lure him away from his motel room to the roadside park. Prior to the meeting with Randel in the latter's motel room to set up the drug transaction, the triggerman Sanne testified that he had told his supplier...