Thigpen v. Thigpen

• Decision Date: 26 February 1991
• Docket Number: No. 89-7368,89-7368
• Parties: Donald THIGPEN, Petitioner-Appellant, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, Willie D. Johnson, Warden, Holman Unit, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1003

926 F.2d 1003

Donald THIGPEN, Petitioner-Appellant, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, Willie D. Johnson, Warden, Holman Unit, Respondents-Appellees.

No. 89-7368.

United States Court of Appeals Eleventh Circuit.

Feb. 26, 1991.

Rehearing and Rehearing En Banc

Denied April 29, 1991.

John Charles Boger, Steven Wayne Hawkins, Steven A. Reiss, New York University School of Law, 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, Chief Judge, ANDERSON and COX, Circuit Judges.

TJOFLAT, Chief Judge:

Donald Thigpen appeals from the district court's refusal to grant a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254 (1988), setting aside his conviction. Thigpen was convicted of first-degree murder by an Alabama court and sentenced to death under Ala.Code Sec. 13-1-75 (1975) (repealed 1980), which established a mandatory death penalty for those who committed first-degree murder while serving life sentences. ¹ After exhausting his remedies in state court, ² Thigpen petitioned the district court for a writ of habeas corpus, alleging several constitutional defects in his conviction and sentence. ³ The district court set aside his death sentence, finding that section 13-1-75 was unconstitutional under Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), but upheld his conviction. ⁴ On appeal, Thigpen raises only one issue: whether the admission of evidence that he was convicted in 1972 of another first-degree murder and received a death sentence, which was later reduced to life in prison, rendered his trial so fundamentally unfair that he was convicted without the due process of law. ⁵ For the reasons set forth below, we affirm the district court's conclusion that Thigpen's conviction was constitutional.

We organize this opinion as follows. In part I, we outline the facts and discuss the evidence presented at Thigpen's trial. In part II, we describe the district court's conclusion that Thigpen's conviction was valid and present the parties' claims on appeal. In part III, we conclude that the admission of the disputed evidence did not render Thigpen's trial fundamentally unfair.

I.

On May 5, 1972, an Alabama jury convicted Thigpen of the first-degree murder of Cassie Davis; he was sentenced to death. On appeal, the Alabama Court of Criminal Appeals reduced his death sentence to life in prison, pursuant to Hubbard v. State, 290 Ala. 118, 274 So.2d 298, 300 (1973), which declared Alabama's general death penalty statute unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922, 925-26 (Ala.Crim.App.1973).

On April 16, 1975, while Thigpen was serving this life sentence, he and several other prisoners escaped from the William C. Holman Prison, a maximum-security facility. Early in the morning of April 17, Thigpen and another escapee, Pedro Williams, were walking along a dirt road near the prison when they heard a pickup truck approaching and hid in some bushes. When the driver, an elderly farmer named Henry Lambeth, stopped and began loading fenceposts into the truck, either Thigpen or Williams (or both) attacked Lambeth with an axe or a fencepost and killed him. The two then carried Lambeth's body to an abandoned house nearby and stole the truck. Shortly thereafter, an Alabama state trooper stopped the truck for speeding and took Thigpen and Williams into custody. Thigpen, who was driving when the two were caught, told the arresting officer that he and Williams had stolen the truck from a man who was feeding cows in a field.

After the arrest, Williams, who was serving fifteen years for robbery when he and Thigpen escaped, gave investigators three separate statements describing Lambeth's murder; in all three, Williams stated that Thigpen had killed Lambeth and that he had neither assisted in nor intended the murder. Williams gave the first of these statements to Investigator Marlin Brewer and Warden Barney Hardin at Holman Prison on April 17, a few hours after he was taken into custody. Williams said that Thigpen and another escapee, John Griffin, had left Williams hiding in the woods. They returned approximately half an hour later with blood on their clothes and a pickup truck. They told Williams that they had "jumped an old man and beat him up and ... took the truck." Williams then got into the truck and the three drove away. According to Williams, Griffin soon got out of the truck because he was frightened that the police would stop the vehicle on the interstate. Because it later became apparent that Griffin was not involved in the crime, he was never indicted.

The next day, April 18, Williams was transferred to Fountain Correctional Center, where he gave a second statement to Brewer. Williams told Brewer that Thigpen, on the morning after the escape, said he wanted to get a car in order to flee the country. When the two walked past a house with two cars outside, Thigpen suggested stealing one of the cars. After Williams warned him that people were likely to be in the house, Thigpen decided to burn the house down. Williams, however, was able to persuade Thigpen to abandon this plan.

After this episode, the two walked along a dirt road. When they heard Lambeth's truck approaching, they hid in some honeysuckle vines. After Lambeth stopped and got out of the truck, leaving the keys inside, they decided to steal it. According to plan, both emerged from the bushes, and Thigpen distracted Lambeth with conversation while Williams got into the truck. Thigpen, however, deviated from their plan: he took an axe from the truck and killed Lambeth. Thigpen told Williams he had to kill Lambeth because he did not want to leave any evidence. They then carried the body--Thigpen holding Lambeth's head and shoulders, Williams holding his feet--to an abandoned house nearby. After this, Williams drove them away in the truck. ⁶

Williams made a third statement, also at Fountain Prison, to investigators Brewer and James Dixon, on April 21. In yet another version of the facts, Williams stated that he (Williams) had distracted Lambeth by walking around him; when Lambeth turned his back on Thigpen, Thigpen killed him with the axe.

In one of these statements, Williams told Brewer that he had received a letter from Thigpen cautioning him not to talk about the incident. In the letter, Thigpen professed his friendship for Williams, told Williams that the State did not have "anything" on them, advised Williams not to talk to a lawyer unless Thigpen was present, and told Williams to "be cool and live on." ⁷

Williams was indicted for first-degree murder. He pled guilty to second-degree murder, pursuant to an agreement with the State, and received a sentence of ninety-nine years in prison before Thigpen was tried. Thigpen was indicted under section 13-1-75, as a person who committed first-degree murder while serving a life sentence.

The primary issues at Thigpen's trial were whether Thigpen killed Lambeth, or, if not, whether Thigpen intended that Williams should kill Lambeth. The State sought to persuade the jury that Williams' post-arrest statements to investigators were true: Thigpen had killed Lambeth with an axe. Alternatively, the State sought to show that even if Williams had killed Lambeth, Thigpen and Williams conspired to murder him and were equally culpable for his death. Thigpen presented another version of the facts, to which both he and Williams testified: Williams had killed Lambeth with a fencepost, and Thigpen had not assisted in or intended the murder.

In its case in chief, the State presented several pieces of physical evidence; each is arguably consistent with both the State's and Thigpen's versions of the murder. First, an axe was found at the scene, approximately thirty feet from a pool of blood on the ground; tests revealed no blood and no identifiable fingerprints on the axe. Second, several fenceposts and a 4- by 4-inch dressed board were found near the pool of blood, and another 4- by 4-inch board was found on the porch of the house; a fingerprint on one of these objects ⁸ did not match Thigpen's. Third, three hairs, identified as "negroid," were caught on a barbed-wire fence above the pool of blood; Thigpen and Williams are both black. Fourth, type O blood was found on Thigpen's shirt; blood of unascertained type, but of "human origin," was on his pants and undershirt. Lambeth had type O blood; Thigpen has type A. ⁹ Finally, a pathologist testified that Lambeth had "lacerations" on his scalp and died from blows to his head inflicted with a "blunt-type of instrument." ¹⁰

Also in its case in chief, the State introduced evidence of Thigpen's 1972 conviction for first-degree murder, his death sentence, and the reduction of this sentence to life in prison, to prove that element of the indictment which alleged, pursuant to section 13-1-75, that Thigpen was serving a life sentence when he killed Lambeth. First, the State presented a certified copy of the formal judgment entry showing Thigpen's 1972 conviction and death sentence, with a copy of the Alabama Court of Criminal Appeals decision reducing the sentence to life attached. ¹¹ Thigpen's attorney objected, arguing that the information about Thigpen's conviction for first-degree murder and death sentence was "highly inflammatory" and would prejudice the jury; accordingly, he offered to stipulate that Thigpen was serving a life sentence at the time he escaped. The court overruled the objection and admitted the judgment entry and decision into evidence.

Second, the State presented the testimony of O.C. Ellard, a police officer involved in the investigation of the 1972 murder, to show that Thigpen had been convicted in 1972 of the crime described in the...