Turner v. McKaskle

• Decision Date: 27 December 1983
• Docket Number: No. 82-1574,82-1574
• Citation: 721 F.2d 999
• Parties: Harvey Wayne TURNER, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 999

721 F.2d 999

Harvey Wayne TURNER, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-1574.

United States Court of Appeals Fifth Circuit.

Dec. 27, 1983.

Michael P. Lynn, Court-appointed, Dallas, Tex., for plaintiff-appellant.

Barbara J. Lipscomb, Austin, Tex., for respondent-appellee.

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

Before GARZA, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

State prisoner Harvey Wayne Turner applied for a writ of habeas corpus, 28 U.S.C. Sec. 2254, in the Northern District of Texas. He argued that there was insufficient evidence to support his state conviction for murder. The district court denied his application for habeas corpus. We find it necessary to reverse and grant the writ.

I. FACTS

In January, 1976, Parker County deputies discovered a decomposing body in an abandoned shack. The decedent had died sometime between October and December of 1975 from a short range shotgun blast to the head. By interviewing people whose phone numbers were written on a card found on the decedent's person, police identified the decedent as Clifford Carr. Police learned that Carr had last been seen, in early November 1975, with Turner and Milton Crow.

Police located Turner in a Denver, Colorado jail. Some inexpensive personal belongings of Carr's were found in the car that Turner and his friend Crow had driven to Denver. Police returned Turner to Texas. On January 19, 1976, Turner made a statement which admitted his presence near the scene of the crime. Turner was tried and convicted of murder on the basis of his statement and the above mentioned circumstantial evidence. The relevant portions of Turner's statement read as follows:

"When we got to Wichita Falls on the 6th we went to see M.C. Harvey at his house, he was not at home at the time. We met him later and went out with him to the Gateway Motel first, then we picked up Cliff Edwards [Clifford Carr] at the Sands Motel. M.C. Harvey rode with us and the four of us went to the American Legion Hall and drank until it closed. M.C. Harvey left with his girl friend and we took Cliff back to the Sands Motel. We drove around until the next morning and went back to the Sands and picked Cliff up again, to take him to Fort Worth with us. We left Wichita Falls around 10 a.m. and got to Fort Worth about 12:30 or 1:00 p.m. We went to the Vally [sic] View Motel at Riverside Dr. and Berry St. Crow and Cliff left and went to the Caravan Motel on Jacksboro Highway to try and find the kid a place to stay. They came back before 4:00 p.m. and I left with them because the Valley View rents by the hour until 4:00 p.m. We went to Northside and came out through Azle. I remember going to a joint on exchange, it used to be Jim's Place. Crow was driving and they were talking about shooting those guns. We drove off the highway on some old country roads somewhere and Crow stopped at an old bridge somewhere and they both got out and was shooting at something down in the creek. I got out and leaned on the car while they were shooting. We drove on and I remember Crow saying something about having some kinfolks that lived somewhere around where we were. [We turned off the road into a gate and went up a road to an old shack and Crow and Cliff got out and started shooting the guns again. I opened the right rear door where I was sitting and sat there. Crow had parked with the right side of the car toward the shack. They were walking all around the shack looking for junk to shoot at. Cliff must have shot the .22 at least 15 or 20 times. Crow shot 6 or 7 times with the .38 and fired the shotgun 3 or 4 times. Crow and the kid went into the shack from the east door and Crow came out a little later and came to the car. He shut the trunk and got in told me to get in the front seat. He said 'Come on up here in the front, we're fixing to go.' I asked him 'what about the kid.' He said 'he ain't going back with us.'] Nothing else was said.

"We went back to the Vally [sic] View Motel and I got a room and went to bed. Crow left and came back the next morning with two guys and picked me up and then let the guys out on Austin St. I don't remember seeing in the trunk until we got to Colo. I saw the musical equipment at Wichita Falls when we loaded it, and it was not there when we got to Colo. I remember the microphone and a little radio looking thing in the car before I was arrested in Denver. When we got into that trouble in Denver, Crow started bringing up an old deal in Ruidosa and was threatening me, so I made him get out of the car and I haven't seen him since. I was arrested a little while later." ¹

II. SUFFICIENCY OF THE EVIDENCE--MURDER

In determining whether there was sufficient evidence to support a state conviction, the Court must, considering all the evidence in the light most favorable to the prosecution, determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on the record evidence presented at trial. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Court must refer to the substantive elements of the criminal offense as defined by state law. Id. n. 16. Under Texas law a person commits murder if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex.Penal Code Ann. Sec. 19.02(a) (Vernon 1974). As we point out in the analysis below, if the jury credited Turner's statement there is not enough evidence to convict. On the other hand if the jury did not credit Turner's statement, there is virtually no evidence of significance connecting Turner with the crime.

The government points to four facts which are allegedly sufficient, in combination, to establish Turner's guilt beyond a reasonable doubt: (1) the fact that Turner admitted being with Carr on the day of the murder; ² (2) his presence near the scene of the crime; (3) his departure from Texas the day after the murder; and (4) his possession of some of Carr's personal belongings. Although the jury was admittedly allowed to draw inferences from those facts, we do not feel that the cumulative inferences were sufficient to support Turner's conviction. To affirm his conviction would be to deny the presumption of his innocence and establish a presumption of guilt in its stead.

The fact that Turner admitted being with Carr on October 7 is insufficient to establish that he committed murder. So is Turner's admission that he was outside the shack. Turner's statement does not admit his guilt, and does not provide any evidence of intent knowingly to cause serious bodily injury to Carr, or to cause his death. Some inexpensive personal belongings that had belonged to Carr, including some cufflinks, rings, a money clip, a toy pistol, and a police badge, were found in the car in which Turner had traveled to Denver. Further, the circumstantial evidence of either the personal belongings in the car or of Turner having been one of the last people to be seen with Carr, does not reach the level of proving Turner's intent. If the jury chose to disbelieve Turner's statement, as its verdict indicates it did, the only evidence with which to connect Turner to the crime at all was the presence of Carr's belongings in the car and the fact that Turner had been seen with Carr on October 6. The Texas Court of Criminal Appeals has stated that rejection of a defendant's statement by a trier of fact does not serve to prove the missing elements of the offense. Wright v. State, 603 S.W.2d 838, 840 (Tex.Cr.App.1979) (en banc). Therefore, although the jury could have disbelieved Turner's statement, mere disbelief of the statement did not provide evidence with which to convict Turner.

This Court has long rejected the proposition that "mere presence" at the scene of a crime is alone sufficient proof of conspiracy. United States v. Cochran, 697 F.2d 600, 603 (5th Cir.1983). Likewise, we reject the view that presence at the scene of the crime is alone sufficient proof of participating in, or perpetrating, the substantive offense. In United States v. Beason, 690 F.2d 439, 440 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983), we said that the mere association of the defendant with the maker of unregistered firearms was insufficient to support his conviction for possession of unregistered firearms. It was an undercover agent's testimony that the defendant had made representations to him regarding the date the firearms would be available, and the defendant's proximity to the maker before, during, and after the delivery of the firearms, that allowed the defendant to be found in constructive possession of the firearms. Although Turner's statement says he was with Crow before and after Carr's murder, if Turner's statement is credited he was not actually in the presence of Crow and the victim when the murder occurred. Turner made no statements which would indicate he knew and approved of a plan to kill Carr, let alone of his being a participant in the murder.

The government's argument that Turner's flight from Fort Worth to Denver is strong evidence of Turner's guilt is also unpersuasive. Turner's trip to Denver is insufficient to fill the role of compelling evidence of guilt in a murder conviction. As we reasoned in United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977) (cites omitted),

Analytically, flight is an admission by conduct. Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime...