Thompson v. Lynaugh, 87-5523
| Decision Date | 03 July 1987 |
| Docket Number | No. 87-5523,87-5523 |
| Citation | 821 F.2d 1054 |
| Parties | John Russell THOMPSON, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark Stevens, San Antonio, Tex., for petitioner-appellant.
Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before RUBIN, JOHNSON, and JONES, Circuit Judges.
The petitioner in this habeas corpus case has been condemned by Texas courts to be executed for the crime of capital murder. He contends that he was deprived of his federal constitutional rights in ten respects, urging most strenuously the alleged insufficiency of the evidence to show that he intended to kill a person whom he shot during the course of an armed robbery--an insufficiency alleged to deny him due process in two ways, both by the insufficiency of the evidence to sustain a verdict of guilty, and its insufficiency to satisfy the requirements of the Texas sentencing statute. Finding that the evidence is sufficient to satisfy constitutional requirements in both respects and that the petitioner's federal constitutional rights were not violated in any of the other respects complained of, we affirm the district court judgment denying him relief.
As set forth by the en banc opinion of the Texas Court of Criminal Appeals, affirming the conviction and death sentence of John Russell Thompson, 1 and as supported by the record, the basic facts are these. Thompson, Fernando Guerrero, and Guerrero's friend Christie Sparks Moore met at another friend's house in San Antonio, Texas, where Thompson initiated a discussion about committing an armed robbery. Guerrero agreed, and Thompson and Guerrero attempted to secure a gun. Their efforts were unsuccessful, and Guerrero then enlisted Moore's aid in secretly obtaining, from the home of Moore's stepfather, a .45-caliber automatic pistol that belonged to her stepfather. Thompson, who had some familiarity with firearms, manipulated the weapon, which had three safety mechanisms, to be certain he knew how to operate it. Guerrero also manipulated the weapon. Either Guerrero or Thompson, though the evidence does not show which, disengaged the safety devices. The gun was then placed under Guerrero's seat in the car. The three then picked up a friend of Thompson, Esther Cervantes, who supplied a bandana and a pair of sunglasses to be used as a disguise.
Thompson drove the group around looking for a place to rob. After inspecting several other places, which appeared not to be opportune targets, Thompson drove by the office of a place of business called Pioneer Stor & Lok. Thompson said to the group in his car that he saw a woman inside counting money. Because several cars were parked at the business, Thompson drove onto Loop 410, where he encountered a pedestrian. Thompson slowed down and Guerrero conversed with the pedestrian. As a result, a police officer stopped Thompson and gave him a ticket for obstructing traffic. Thompson, slightly upset, then returned to Pioneer Stor and Lok with his three companions. Leaving them in the car, he donned the disguise, took the murder weapon, got out of the car, and went into the office. Moore, who was hiding with Cervantes in the back seat, testified at the trial that she heard "a large bang" and Thompson then emerged from the office. He got in the car and they drove away.
Thompson said to the group that he hadn't taken any money because there was none. He also said that the woman in the office (who was Mary Kneupper) had not taken him seriously and had laughed at him when he first entered the office and pointed the pistol at her. When she later fled the office area through a doorway, he jumped over the office counter and attempted to pull her back into the office area to stop her flight. He said that the pistol had discharged accidentally, and that he did not think he had wounded her. Moore also testified that, when Thompson later learned from the media that Mrs. Kneupper had died, he cried and said repeatedly that he had shot her accidentally.
An autopsy performed on the victim revealed a wound made by a bullet that entered the left side of her neck, severed her spine, and exited the right side of her head in front of her ear. The doctor who performed the autopsy testified that it was his opinion that the wound was caused by a large caliber bullet fired from a distance of less than two feet, perhaps as little as a few inches. A firearms examiner testified that in his opinion Mrs. Kneupper was shot from a distance of three to six inches.
Ronald Ash, a friend of Thompson and Fernando Guerrero, testified that the day after the death of Mrs. Kneupper he spoke with Thompson and Guerrero regarding the robbery-murder that had occurred the previous day. Thompson told him that "they had tried to make a score and killed an old lady," but he did not say that this was accidental.
After the jury had returned a guilty verdict, the sentencing phase of the trial began. Evidence was adduced that Thompson had been convicted of felony theft in November 1972, for which he successfully terminated a sentence of three years on probation. He had been convicted of felony burglary of a habitation and felony theft in 1974 and was sentenced to five-to-six years, and two-to-six years imprisonment, respectively. When arrested for burglary, he had been in possession of a .22-caliber pistol and several boxes of ammunition. Four days before the Pioneer episode, the police recovered a loaded and fully operational .32 automatic pistol from a car that Thompson was driving. The state also introduced other evidence, which it is unnecessary to recount, of Thompson's criminal propensities. There was no evidence that Thompson had ever previously been convicted of robbery or had ever personally fired a weapon in the course of an offense.
Moore testified, inter alia, that, while she had known Thompson for only four months, she had gotten to know him very well and had never seen him do a violent act. She did not believe that Thompson deliberately killed Mrs. Kneupper or that he was a cold-hearted person who could walk into the office, kill Mrs. Kneupper, and walk out. Moore, Thompson, and Guerrero had all agreed before the attempted robbery that the pistol would be used only to scare the victim, and Thompson had assured Moore that he intended to use the pistol only in this manner.
Before beginning the trial, Thompson filed a motion to bar the death penalty, in which he averred that the manner in which the prosecution had elected to seek the death penalty was arbitrary and capricious, and consequently in violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution. A hearing was held pursuant to this motion on the same day it was filed. The evidence established that, after some unsuccessful plea negotiations, the State had previously tried Thompson for the murder of Mrs. Kneupper, Thompson had been convicted of capital murder and sentenced to be executed, but the conviction was reversed by the Texas Court of Criminal Appeals on September 23, 1981. Immediately thereafter, Gordon Armstrong, the felony chief of the District Attorney's office, offered Thompson's counsel, Nick Rothe, a plea bargain: a life sentence if Thompson would plead guilty. Although Thompson did not accept the offer at this time, Armstrong did not withdraw it.
Thompson was reindicted on January 13, 1982. The case was assigned for trial in February. Ed Springer, an assistant district attorney who was the lead prosecutor in the office but had previously tried only one capital case, was assigned to try Thompson. Springer wanted to know if a plea bargain was possible, so he urged Rothe to talk with Thompson about such a deal, stating that it would be acceptable to him but would require approval by his superiors. Springer testified that he wanted to know whether a bargain could be struck as soon as possible so he would have enough time to prepare for trial.
After Springer was assigned to the case, Rothe suggested to Springer that Thompson would plead guilty in exchange for a sentence of thirty years. The state did not accept this offer. Rothe subsequently suggested to both Springer and Armstrong that Thompson would accept fifty years, but this offer was not accepted either.
Although Rothe testified at the later hearing in state court on Thompson's application for habeas corpus that Springer had on several occasions "made an offer of a life sentence," the evidence warrants the conclusion reached by the Texas court, that Springer himself did not make any offer. He did, however, solicit an offer from Rothe, and indicated that he would not oppose a life sentence in exchange for a guilty plea.
During the two weeks before trial, Springer spent time trying to locate the transcript and exhibits from Thompson's first trial, locating witnesses, and trying to decide who should be called to testify.
On the Thursday preceding the start of the second trial, which was scheduled to and did begin the following Monday, Rothe told Springer that Thompson would plead guilty in exchange for a promise of a life sentence. Springer conveyed the offer to his superiors, who rejected it and stated that the prosecution's offer of a life sentence had been withdrawn. The case went to trial as scheduled, and Thompson was convicted in the guilt phase of the trial. After the jury responded "Yes" to the sentencing interrogatories, the court sentenced Thompson to be executed. The conviction was affirmed on direct appeal. Thompson then filed an application for a writ of habeas corpus in state court, and a hearing was held. At this hearing Thompson proved that he had signed a confession that had been suppressed at both trials because it had been induced by promises of leniency by the state...
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