Washington v. Watkins

Citation655 F.2d 1346
Decision Date14 September 1981
Docket NumberNo. 80-3072,80-3072
PartiesJohn Lewis WASHINGTON, Petitioner-Appellant, v. John C. WATKINS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees. . Unit A
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Patrick Dale O'Rourke, Jackson, Miss., Grady F. Tollison, Jr., Oxford, Miss., Anthony G. Amsterdam, Stanford Univ. Law School, Stanford, Cal., James S. Liebman, Joel Berger, John C. Boger, Judith Reed, Deborah Fins, New York City, for petitioner-appellant.

Billy Gore, Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

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

Before WISDOM, COLEMAN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

On May 25, 1977, a jury in the Circuit Court of Lowndes County, Mississippi, convicted Petitioner-Appellant Johnny Washington of capital murder for the March 26, 1977, shooting of Karl Woods during the armed robbery of a convenience store in Columbus, Mississippi. After finding Washington guilty, the jury returned a sentence of death.

Washington's conviction and sentence were affirmed on direct appeal to the Supreme Court of Mississippi. Washington v. State, 361 So.2d 61 (Miss.1978) (en banc), cert. denied, 441 U.S. 916, 99 S.Ct. 2016, 60 L.Ed.2d 388 (1979). After the Mississippi Supreme Court rejected additional arguments that Washington raised through a coram nobis petition, he petitioned the court below for a writ of habeas corpus under 28 U.S.C. § 2254 (1976). After holding an evidentiary hearing, the district court denied habeas relief in an unpublished opinion.

On appeal, Washington asserts a number of grounds for habeas relief; we reach only two. For the reasons set forth below in part II of this opinion, we affirm the judgment of the district court insofar as it held that Washington received effective assistance of counsel at his trial. For the reasons set forth below in part III of this opinion, however, we reverse the judgment of the district court insofar as it held that the sentencing phase of Washington's trial comported with the Constitution despite jury instructions that limited sharply the mitigating circumstances which the jury could consider in determining whether Washington should be sentenced to death. Accordingly, we remand the case to the district court with instructions to enter judgment granting appropriate habeas corpus relief.

I. FACTUAL BACKGROUND LEADING TO THIS APPEAL

Washington's trial was neither lengthy nor especially complicated. The Mississippi Supreme Court's opinion from Washington's direct appeal accurately summarizes the evidence presented at the trial:

Woods Quick Pick, a Columbus, Mississippi, convenience store, was robbed on the night of March 26, 1977, by two men armed with shotguns and wearing stocking masks. During the robbery, one of the bandits, later identified as Johnny Lewis Washington, at close range shot J.K. (Karl) Woods, the proprietor of the store, in the stomach with a long-barrel shotgun loaded with buckshot. Woods died about five hours later in a Columbus hospital.

Booker T. Cole, Jr. testified that between 7:30 and 8:00 P.M. on March 26, 1977, Johnny Washington contacted him and told him to come by his house because "he had something up." Some time later, when Cole arrived at Washington's house, the defendant told Cole that they were going to rob (the) Quick Pick. Washington provided Cole with a stocking mask and a sawed-off shotgun, and they took up their station across the street from Woods Quick Pick. After assembling and loading their shotguns, when the coast was clear they ran across the street and into Woods Quick Pick store. J.K. Woods, owner of the store, Roy Thompson, an employee, and a female employee, Elouise Clark, were in the store. (Thompson testified that Woods had been drinking prior to the robbery, and was somewhat intoxicated at the time.)

Cole and Washington pointed their shotguns at Woods and Thompson, and told them to open the cash registers and "give us the money." Thompson began to put the money from the first cash register into a brown paper sack. Cole, the smaller and younger of the two robbers, found a bank sack of money in a cabinet drawer, and he fled with that sack.

Washington, in the meantime, ordered Woods to put the money from the second cash register into the same paper sack that Thompson had put the money from the first cash register. Woods misunderstood and reached for another paper sack, whereupon, according to the testimony of Thompson, Washington hit Woods over the head with the gun barrel "just as hard as he could." In falling, Woods knocked Thompson's sack of money off on the floor. Washington told Thompson not to move and placed the shotgun about 8 inches from Thompson's head. Woods went ahead and picked up the sack and sacked the money from the second cash register.

As Woods handed Washington the sack in one hand, he reached for the gun barrel with the other, but missed, and Washington kept the gun on Woods as he, Washington, backed toward the door. Woods moved slowly toward Washington. Just before he left, Washington fired his shotgun into Woods' stomach. Washington reloaded his shotgun and left. Thompson testified that Washington and Woods were about 10 feet apart when Washington fired, and that Washington could very easily have made his exit with his sack of money without shooting Woods.

Cole testified that he was a short distance away when he heard the shot, and Washington came running out of the store telling Cole that he had shot Woods. Cole testified that later that night, about 12:30 or 1:00 A.M., they got together and divided the money (about $600) between them.

Washington's defense was that he was at a party (at his brother Freddie's apartment), was not at Woods Quick Pick, did not commit the robbery, nor did he kill Woods. (While several of the defense witnesses corroborated Washington's alibi,) (s)everal people at the party testified that Washington did not arrive there until around midnight ....

Ben Hodo of Ethelsville, Alabama, was visiting his grandmother in Columbus, Mississippi, on the night of the robbery. He testified that around 10:00 P.M., as he was going down to Lee's Restaurant to get something to eat, he saw a man in an alley next to Woods Quick Pick with a long gun and a sack full of money. Hodo testified that he and the man with the long gun looked at each other about 10 seconds and that they were close together. He positively identified Washington as the one he saw in the alley with the sack of money and the long gun.

361 So.2d at 63-64. Another prosecution witness, Curtis Cobb, testified that he had seen Washington and Cole retrieve a shotgun and a money bag from some bushes later that night. Through police officers and other investigators, the State also presented some physical evidence that tended circumstantially to link Washington with the crime. The State also presented medical evidence as to the cause and manner of Woods' death. "After a full trial (the Record on the guilt phase consisting of 308 pages in two volumes), the jury returned a verdict of guilty of capital murder." Id. at 64.

In the separate sentencing hearing, both sides presented evidence as to mitigating and aggravating circumstances, to be considered in addition to the evidence adduced at trial. As additional evidence of aggravating circumstances, the State again called Thompson to the stand to testify as to the pointlessness of the shooting given that Washington could have made good his escape without firing.

In mitigation, Washington testified that he was 23 years old, that, while he had been living with a lady for about five years, he was not married but had a three-year-old daughter by her. When asked by his counsel whether he had ever been convicted of a crime, Washington replied that he had been convicted of a "marijuana crime that same year" for which he had paid a $400 fine.

Id. at 64. After receiving the trial court's charge for the sentencing phase of the trial, the jury returned the death sentence, finding (1) that Washington had committed the crime of capital murder while engaged in the commission of the crime of robbery, a statutory aggravating circumstance under Miss.Code Ann. § 99-19-101(5)(d) (1980 Supp.); (2) that Washington committed the capital murder "in an especially heinous, atrocious or cruel manner," a statutory aggravating circumstance under Miss. Code Ann. § 99-19-101(5)(h) (1980 Supp.); (3) that these two aggravating factors warranted the imposition of the death penalty; and (4) that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. Accordingly, the trial court sentenced Washington to death.

As noted above, the Mississippi Supreme Court affirmed Washington's conviction and sentence, rejecting Washington's arguments that the "especially heinous, atrocious or cruel" language of section 99-19-101(5)(h) was unconstitutionally vague and that the death penalty is unconstitutional per se. 361 So.2d at 65-66. The court also determined that the evidence in the case supported the jury's imposition of the death penalty, and that this death sentence was not excessive or disproportionate to the penalty imposed in similar cases, characterizing the killing of Woods as "an especially wanton, willful, useless and cruel killing." Id. at 66-67. Finally, the court rejected Washington's contention that his sentence was imposed in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 361 So.2d at 67-68. 1 The United States Supreme Court denied certiorari, 441 U.S. 916, 99 S.Ct. 2016, 60 L.Ed.2d 388 (1979).

Washington then sought federal habeas corpus relief under 28 U.S.C. § 2254 (1976). The court below granted a stay of execution pending Washington's exhaustion of his state remedies as to certain...

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