Thigpen v. Smith, 85-7264

Citation792 F.2d 1507
Decision Date20 June 1986
Docket NumberNo. 85-7264,85-7264
PartiesDonald THIGPEN, Petitioner-Appellant, v. Fred SMITH, et al., Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Stanley A. Teitler, New York City, for petitioner-appellant.

Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

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

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

On May 5, 1972, Donald Thigpen was convicted of first-degree murder by a jury in the Circuit Court of Jefferson County, Alabama, for the slaying of Cassie Lee Davis. Thigpen was sentenced to death, but, on appeal, the Alabama Court of Criminal Appeals reduced the sentence to life imprisonment. Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (Ala.Crim.App.1973). 1

On April 16, 1975, while serving his life sentence, Thigpen and ten other inmates escaped from Holman Prison, located in Escambia County, Alabama. The next day Thigpen and another escapee, Pedro Williams, came across a sixty-eight-year-old farmer, Henry Lambeth, who was driving fence posts along a road. Lambeth's pickup truck was parked nearby. One of the two escapees brutally assaulted and killed the farmer, either with a fence post or an ax he retrieved from the pickup truck. Thigpen and Williams then carried the body to an abandoned farm house. A few hours later, the police spotted the two escapees driving the victim's pickup truck and arrested them. As the officers were taking the escapees into custody, Thigpen identified himself and told the officers that he and Williams had taken the pickup truck from a man who was feeding his cows in a pasture.

Shortly after the arrest, Williams gave a statement to the police. In his statement he said that, following their escape, he and Thigpen spent the first night in the woods. The next morning, as they were walking along a road, they saw a vehicle (Henry Lambeth's pickup truck) approaching, and they hid in some bushes along the side of the road. The vehicle stopped in front of an abandoned farm house, across the road from where the two escapees were hiding. The driver of the vehicle (Henry Lambeth) got out and began unloading some fence posts. At this point, according to Williams, Thigpen crossed the road and asked the man if he needed help. He said he did not, but Thigpen began helping him anyway. When the man turned his back to Thigpen, Thigpen grabbed a fence post or an ax and beat him to death. After the killing, Williams crossed the road and helped Thigpen carry the body to the abandoned farm house, where they left it. They fled the scene in the victim's pickup truck. Williams repeated this statement to the police three days later.

On October 20, 1975, Thigpen was indicted by an Escambia County, Alabama grand jury for first-degree murder. Williams was charged with the same crime in a separate indictment. Williams pled guilty to second-degree murder and was sentenced to prison for ninety-nine years. Thigpen pled not guilty and, after obtaining a lengthy continuance, went to trial on August 16, 1976, in the Escambia County Circuit Court. The trial lasted a day and a half. The State conclusively established that Thigpen and Williams were together at the scene of the crime and that one of them murdered Henry Lambeth with a fence post or an ax, 2 disposed of his body, and stole his pickup truck.

Both Thigpen and Williams testified in Thigpen's defense. Williams took the stand first and recanted the two statements he had given the police to the extent that he reversed the roles he and Thigpen played in the murder. He testified that he, not Thigpen, was the one who emerged from the bushes, crossed the road, and killed the victim. On cross-examination, the prosecutor confronted Williams with his prior inconsistent statements to the police, but Williams would not change his testimony. Thigpen's testimony mirrored what Williams told the jury.

Following the closing arguments of counsel, the court charged the jury. The court began by reading from the indictment the grand jury's description of the criminal conduct Thigpen allegedly committed: that Thigpen, an Alabama inmate serving a life sentence, "did unlawfully and with malice aforethought kill Henry Lambeth by striking him with an ax or other blunt instrument, a better description of which being otherwise unknown to the Grand Jury...." The court then instructed the jury that it could find Thigpen guilty of first-degree murder if he, himself, killed Henry Lambeth "willfully, maliciously, and with deliberation and with premeditation" or if Williams took Lambeth's life pursuant to a "conspiracy" or "common enterprise" between Thigpen and Williams to kill Lambeth. 3 The court also instructed the jury as to the lesser offense of second-degree murder, advising the jury that it could find Thigpen guilty of that crime if he willfully and maliciously killed Lambeth "without premeditation or deliberation."

Alabama law in effect at the time of the homicide in this case provided that any convict serving a life sentence, "who commits murder in the first degree while said sentence remains in force against him, shall, on conviction, suffer death." Ala.Code Sec. 13-1-75 (1975). 4 The trial judge interpreted this provision to mean that, in the event the jury found Thigpen (who conceded that he was serving a life sentence at the time of Lambeth's murder) guilty of first-degree murder, the jury, rather than the court, was required to sentence Thigpen to death. Accordingly, the judge so instructed the jury.

The jury, in a general verdict, found Thigpen guilty as charged and imposed the death sentence. Following the court's entry of judgment in accordance with the jury's verdict and sentence, Thigpen appealed. Thigpen challenged the validity of his conviction and sentence on several state law grounds. The Alabama Court of Criminal Appeals, acting sua sponte, raised an additional ground concerning Thigpen's sentence: whether his mandatory death sentence violated the United States Constitution. Addressing this ground first, the court observed that the Supreme Court, in Roberts v. Louisiana, 431 U.S. 633, 637 n. 5, 97 S.Ct. 1993, 1995 n. 5, 52 L.Ed.2d 637 (1977), "expressed the view that the constitutionality of a mandatory death sentence for a prisoner who commits first-degree murder while serving a life sentence was an open question." Thigpen v. State, 355 So.2d 392, 396 (Ala.Crim.App.), aff'd, 355 So.2d 400 (Ala.1977) (per curiam). The court therefore adhered to one of its previous decisions, Harris v. State, 352 So.2d 460 (Ala.Crim.App.1976), aff'd, 352 So.2d 479 (Ala.1977), which had upheld the imposition of such a sentence, and found no constitutional error in Thigpen's death sentence. The court also found no error in Thigpen's conviction. Accordingly, the trial court's judgment was affirmed.

On June 6, 1978, Thigpen filed a petition for writ of error coram nobis with the trial court, claiming that his conviction and death sentence had been obtained in violation of the United States Constitution. He presented seventeen claims. Thigpen's first claim attacked on several independent grounds the constitutional validity of Thigpen's 1972 conviction; absent that conviction and resultant life sentence, Thigpen contended, he could not have been given a mandatory death sentence pursuant to Ala.Code Sec. 13-1-75 (1975) for having committed first-degree murder while serving a life sentence. Thigpen's remaining sixteen claims related to his 1976 first-degree murder conviction and death sentence.

Following an evidentiary hearing, the court, on September 8, 1978, denied Thigpen's petition. Thigpen appealed, raising five of the claims he had presented to the trial court. The first two claims attacked the validity of Thigpen's conviction: blacks and women were substantially underrepresented in the venires from which the grand jury that indicted him and the petit jury that convicted him had been selected, in violation of the sixth and fourteenth amendments. Three claims challenged Thigpen's death sentence on eighth and fourteenth amendment grounds: (1) the sentence was excessive because (a) it was imposed for "aiding and abetting" a murder and (b) Thigpen's accomplice received a lesser sentence, imprisonment for ninety-nine years, for actually committing the murder; (2) Thigpen was sentenced to death on account of his race; and (3) the State selectively and capriciously applied the death penalty statute, Ala.Code Sec. 13-1-75 (1975), in Thigpen's case. The Court of Criminal Appeals rejected each of Thigpen's five claims and affirmed. Thigpen v. State, 374 So.2d 401 (Ala.Crim.App.1979). 5

Having exhausted his state remedies, Thigpen, on May 10, 1982, petitioned the United States District Court for the Southern District of Alabama for a writ of habeas corpus, presenting eleven constitutional claims. Five of these claims, including Thigpen's attack on the venires from which the grand jury and the petit jury were selected, challenged his conviction; 6 six claims challenged his death sentence. 7 Two days later, on May 12, 1982, Thigpen filed a habeas petition with the United States District Court for the Northern District of Alabama challenging his 1972 murder conviction in Jefferson County. This petition was promptly transferred to the Southern District of Alabama and consolidated with the petition challenging Thigpen's 1976 murder conviction and death sentence. Several months after the State answered Thigpen's two petitions, the State and Thigpen entered into the following stipulation. Thigpen would dismiss the petition addressed to his 1972 Jefferson County conviction. As to the petition challenging his 1976 Escambia County conviction and sentence, Thigpen would dismiss the five claims questioning the validity of his conviction. He would then...

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