Thomas v. Jones
| Decision Date | 21 December 1989 |
| Docket Number | No. 89-7213,89-7213 |
| Citation | 891 F.2d 1500 |
| Parties | Wallace Norrell THOMAS, Petitioner-Appellant, v. Charlie JONES, Warden, and the Attorney General of the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David Skeen, Port Townsend, Wash., 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, FAY and VANCE *, Circuit Judges.
Defendant Wallace Norrell Thomas appeals the district court's dismissal with prejudice of his petition for a writ of habeas corpus. Defendant contends that the district court erred in finding that defendant's constitutional rights were not violated at the sentencing hearing when the state trial judge, knowing the jury had not reached a final decision, sequestered the jury for the evening with instructions to continue deliberations in the morning. Defendant argues that the trial judge should have accepted the jury's lack of unanimity and sentenced the defendant to life imprisonment without parole rather than death. Defendant further asserts that the district court erred in finding that defendant was not denied effective assistance of counsel. Defendant argues that because he was not charged with rape, his counsel should have objected when the state introduced evidence during trial and made remarks during closing arguments that the victim had been sexually abused. Finally defendant requests reversal of the district court's ruling that defendant was not denied due process when the state trial judge declined to order examinations to determine defendant's sanity at the time of the offense. We find all of defendant's contentions meritless. Accordingly, we AFFIRM the district court's dismissal of defendant's petition for writ of habeas corpus.
On November 3, 1977, defendant Thomas was convicted of intentionally killing Quenette Shehane during the course of a robbery, and he was subsequently sentenced to death. However, defendant's conviction was reversed and remanded for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980). Thomas v. State, 400 So.2d 435 (Ala.Crim.App.), cert. denied, 400 So.2d 435 (Ala.1981). In May, 1982, Thomas was retried for murdering Quenette Shehane. On May 19, 1982, the jury returned a verdict convicting Thomas of killing Quenette Shehane during the course of a robbery, and on May 20, 1982, the jury tendered a verdict recommending a death sentence. Thomas appealed, and the conviction and sentence were affirmed by the Alabama Court of Criminal Appeals, Thomas v. State, 460 So.2d 207 (Ala.Crim.App.1983), and the Alabama Supreme Court, Ex parte Thomas, 460 So.2d 216 (Ala.1984). Thomas was prevented from obtaining a writ of certiorari from the United States Supreme Court because of his failure to file timely a petition.
Thomas next filed a petition for writ of error coram nobis in Mobile County Circuit Court. After an evidentiary hearing on July 22, 1985, the petition for a writ of error coram nobis was denied. Thomas appealed the denial of his petition for writ of error coram nobis, and the Court of Criminal Appeals of Alabama affirmed the decision of the Mobile County Circuit Court. Thomas v. State, 511 So.2d 248 (Ala.Crim.App.), cert. denied, 511 So.2d 248 (Ala.1987).
Having exhausted his state court remedies, Thomas turned to the federal courts. He filed a petition for a writ of habeas corpus, an amended petition for a writ of habeas corpus, and a second amended petition for a writ of habeas corpus in the United States District Court for the Southern District of Alabama, all of which were dismissed on December 29, 1988. Thomas appeals to this court to overturn the district court's ruling.
The record shows that at about 2:00 p.m. on May 19, 1982, after a short discussion between the trial judge and counsel, lawyers for the state and for defendant Thomas began their opening arguments regarding sentencing. At the conclusion of defense counsel's opening argument, there being no evidence beyond what was presented at trial, the prosecutor argued aggravating circumstances and counsel for Thomas argued mitigating circumstances. The trial judge then provided the jury with sentencing instructions. After they were charged, the jury began deliberations. The deliberations lasted between one hour fifty minutes and two hours, after which the following colloquy occurred:
Is there anything further for the state?
(Folder No. 5, Vol. 4 at 602-03). The trial judge then ordered the jury to remain sequestered and discharged them for the evening.
The following morning, defendant's counsel argued that the jury should not be allowed to continue deliberating because of the Alabama Supreme Court's decision in Beck v. State, 396 So.2d 645 (Ala.1980). The trial judge denied defendant's request to prevent further deliberations and charged the jury as follows:
THE COURT: Ladies and gentlemen of the jury, I hope y'all had a pleasant evening and are rested. When I told you I wanted you to deliberate further, I am not trying to force you to get a verdict. There's one thing I feel like that y'all might not have understood from my previous charge to you and I want to make this clear to you.
If the jury cannot agree on a unanimous sentence of death as the punishment, the alternative form of, we, the jury, find the punishment life imprisonment without parole would be what you would return. Did y'all understand that previously?
Do you have any questions or anything further I might be able to assist you in, in your deliberations at this time?
(Indicating no.)
THE COURT: Thank You.
(Jury out for further deliberation.)
(Folder No. 5, Vol. 4 at 602-03).
Defendant argues that the trial court violated his constitutional rights in that it should have accepted the jury's May 19th statement that it had not yet reached a decision as a recommendation that Thomas be sentenced to life imprisonment without parole pursuant to Beck v. State, 396 So.2d 645 (Ala.1980). Defendant further argues that the trial court coerced the jury to return a sentence of death when it instructed them to continue deliberations. We find both contentions meritless.
After careful review of the record we cannot conclude that the state trial judge committed constitutional error in requiring the jury to continue deliberations after learning of their indecision at the close of the afternoon session. Although there is no specific statement in the record as to the time when the judge called the jury out of deliberations on May 19, 1982, we are of the impression that it was late in the day. The afternoon session began at approximately 2:00 p.m. and included opening statements regarding sentencing, arguments concerning aggravating and mitigating circumstances, sentencing instructions to the jury, and approximately two hours of jury deliberation. Thus, it appears that the court was simply recessing for the evening when it called the jurors to determine whether a verdict had been reached.
Nonetheless defendant argues that the response from the jury that they had not yet reached an unanimous verdict precluded the judge from imposing the death sentence. We disagree. There is no indication in the record that the jurors were complaining to the court that they were "hopelessly deadlocked." Cf. Ex parte Giles, 554 So.2d 1089, 1090 (Ala. 1987) (per curiam) (). To the contrary, there is no indication in the record that the jury had terminated its deliberations when the trial judge questioned Ms. Cunningham. We hypothesize that the judge inquired as to the jury's position in order to determine whether it would be necessary to reconvene the following day. We do not believe that Thomas' right to due process was violated by the trial judge's actions.
Moreover, we find that the state trial judge was not coercive in mandating further deliberations and reinstructing the jury on May 20, 1982. We believe Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), is germane. In Lowenfield, the jury, after being charged, began deliberations. The evening drew to a close and they reconvened the next day to continue deliberations. During the afternoon, the jury sent a note to the judge stating that they were unable to reach a decision at that time and requesting advice from the court again as to their responsibilities. The court responded by providing each juror with a note asking if it would be helpful to continue deliberations. Eight of the twelve jurors thought...
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