Ward v. Whitley

• Decision Date: 17 May 1994
• Docket Number: Nos. 89-3831,90-3855,s. 89-3831
• Citation: 21 F.3d 1355
• Parties: Thomas Lee WARD, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, Angola, Louisiana, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1355

21 F.3d 1355

Thomas Lee WARD, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary Angola, Louisiana, et al., Respondents-Appellees.

Nos. 89-3831, 90-3855.

United States Court of Appeals, Fifth Circuit.

May 17, 1994.

Gregory Bialecki, Deval L. Patrick, David A. Hoffman, Hill & Barlow, Boston, MA, for Ward in Nos. 89-3831, 90-3855.

Alan H. Katz, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Ward in No. 89-3831.

Jack Peebles, Asst. Dist. Atty., New Orleans, LA, for Whitley in Nos. 89-3831, 90-3855.

Barbara Rutledge, Asst. Atty. Gen., New Orleans, LA, for Whitley in No. 89-3831.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.

POLITZ, Chief Judge:

Thomas Lee Ward, convicted of first degree murder and sentenced to death, appeals the denial of his petition for a writ of habeas corpus. We affirm.

Background

Upon his release from a California jail Ward boarded a bus for New Orleans. He drank vodka and shot cocaine throughout the three-day trip and slept little, if at all. Arriving late in the evening of June 22, 1983, he went directly to the Hagan Street address of Lydia and John Spencer, where his wife, Linda, and their children were living. Lydia Spencer was Linda's mother. Explaining that he was on his way to New York and wanted to see his children, Ward was admitted. His wife informed him that she would not accompany him. Ward departed. He testified that he spent the night drinking vodka and beer and injecting cocaine. Around 5:30 a.m., he returned to the Hagan Street house, asking to see his children again. Once again he was admitted. According to his wife, Ward left an address and phone number at which he could be reached in New York and then walked into the Spencers' bedroom. Pulling a gun, he said, "John, I'm sorry I have to shoot you," and fired once at close range, killing John Spencer. He then shot Lydia Spencer five times as she tried to escape. She survived.

A jury convicted Ward of the first degree murder of John Spencer, La.R.S. 14:30. At the penalty phase of the trial, Linda Ward testified that she first had sexual relations with Ward when she was ten years old. She further testified that she saw him have sexual relations with her sister Ramona, aged 14 at the time, and their daughter Tasha, then aged nine. Ernest Scott, Linda's brother, testified to witnessing a sexual encounter between Ward and his sister Lorraine when she was seven. The prosecution introduced a 1975 complaint charging sexual relations with the minor Linda and two of her minor sisters; Ward pleaded guilty to having relations with Linda. The prosecution also offered a 1983 complaint charging Ward with sexual abuse of his daughter Tasha; Ward pleaded guilty to the misdemeanor of cruelty to a minor.

The jury found two statutory aggravating factors and sentenced Ward to death under Article 905.3 of the Louisiana Code of Criminal Procedure. The conviction and sentence were affirmed on appeal and the Supreme Court denied certiorari. ¹

Efforts to obtain post-conviction relief began. The trial court denied Ward's first petition but the Louisiana Supreme Court remanded for an evidentiary hearing, which was conducted over the course of three days. The trial court again denied relief and the Louisiana Supreme Court denied Ward's application for supervisory writs. Ward filed a federal habeas petition under 28 U.S.C. Sec. 2254 which was dismissed for failure to exhaust state remedies on a mental retardation claim. Repairing to state court for another application for post-conviction relief, Ward obtained a second evidentiary hearing at the direction of the Louisiana Supreme Court. Again the trial court denied the petition. In the wake of the Supreme Court's decision in Penry v. Lynaugh, ² the Louisiana Supreme Court denied the application for supervisory writs. Ward then returned to federal court with the instant habeas petition. The district court denied relief; Ward timely appealed and we granted a certificate of probable cause. While his appeal was pending, Ward filed a Fed.R.Civ.P. 60(b) motion seeking the admission of newly discovered evidence. The district court denied that motion but granted a certificate of probable cause. Ward timely appealed that ruling and we consolidated the two appeals for disposition.

Analysis

At the threshold, Ward asks us to remand his case to district court so that he might amend his petition to add a claim that the "reasonable doubt" instruction given to his jury was invalid under Cage v. Louisiana. ³ We stayed disposition of his appeal pending exhaustion of that issue in the Louisiana courts, which denied him relief. We deny the motion to remand to the district court. A habeas petitioner may not add new constitutional claims to a petition after the district court has entered judgment. ⁴ We express no opinion whatever on the Cage issue.

Ward seeks habeas relief on six grounds: (1) the state withheld Brady material; (2) he did not receive effective assistance of counsel; (3) the prosecutor made improper argument; (4) one of the two aggravating circumstances found by the jury has been invalidated; (5) the prosecution eliminated African-American jurors because of their race; and (6) racial discrimination infected the selection of the jury pool and venire. We address these contentions seriatim.

1. Brady material.

Ward contends that his due process rights under Brady v. Maryland ⁵ were violated by the prosecution's failure to produce police documents tending to show that he killed John Spencer and shot Lydia Spencer under the emotional stress of an argument about whether his wife and children would accompany him to New York. These documents, he maintains, contradicted testimony by Lydia Spencer, his wife Linda, and Ernest Scott that no such argument occurred and corroborated his testimony in the penalty phase.

To succeed on a Brady claim the petitioner must show, inter alia, a reasonable probability that the suppressed material would have changed the outcome of the proceedings. ⁶ Ward has not done so. The police reports reflect that Ward argued with the Spencers when he returned to the Hagan Street residence on the morning of June 23 and that he believed they were preventing a reconciliation with his wife. That is not sufficient provocation to cause a reasonable person to kill in the heat of passion, as required for a responsive verdict of manslaughter. ⁷ Nor would the documents have affected the sentencing determination, even if they had convinced the jury to believe Ward's testimony at the penalty phase. Ward testified that he was upset by his wife's refusal to accompany him because that meant the children would stay behind as well. "Something snapped," he stated, when John Spencer said that Linda "was doing all right" in New Orleans. The prospect that the jury might have found reduced culpability because of John Spencer's support of his step-daughter's decision not to accompany her husband to New York is remote at best. There is no reasonable possibility that the jury would have reached a different result at either phase of the trial had the police documents been produced.

Ward also asserts a Brady violation in connection with possibly missing portions of the prosecutor's files sought in connection with post-conviction proceedings. He has not shown that any of these documents contained Brady material nor a reasonable probability that they were outcome-determinative. The prosecutor was uncertain what portion of the file, if any, was missing and merely speculated that the file was incomplete because it was relatively thin. This assignment of error is without merit.

2. Ineffective assistance of counsel.

Ward asserts multiple ways in which his trial counsel allegedly failed to provide adequate representation. To prevail on a claim of ineffective assistance, he must show that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) there is a reasonable probability that, but for the unprofessional errors, the result of the proceeding would have been different. ⁸ Ward has succeeded on neither prong. Counsel's overall performance ⁹ was not "outside the wide range of professionally competent assistance" ¹⁰ and his errors, viewed separately and cumulatively, did not render the result of either the guilt or penalty phase unreliable.

At the heart of the ineffectiveness complaint is counsel's failure to present evidence of Ward's good character at the penalty phase. Counsel testified at the state post-conviction hearing that this omission was a matter of trial strategy. During his initial investigation of Ward's background counsel discovered the sexual abuse of the minors. While it was settled law that those instances of sexual misconduct for which Ward had been convicted were admissible at the penalty phase of the trial, defense counsel believed the law unsettled as to whether evidence of unadjudicated incidents was admissible. By bringing in good character evidence defense counsel feared that he would open the door to such evidence. He therefore limited his case at the penalty phase to the presentation of a report of a psychologist who evaluated Ward in California, which could not be cross-examined, and a 1965 order obtained by Ward's previous wife. Ward unexpectedly decided to testify, changing the dynamics of the defense.

Louisiana law was unsettled as to the admissibility of unadjudicated acts of misconduct at the time of Ward's trial in August 1984. ¹¹ Ward argues, however, that once the trial court overruled his objection to the admission of bad acts evidence, his trial attorney could have introduced good character evidence without waiving his objection. That argument is misplaced. The issue is not waiver of the objection but rather a removal of the grounds for the original...