Whitmore v. Lockhart, PB-C-89-341.

• Decision Date: 22 September 1992
• Docket Number: No. PB-C-89-341.,PB-C-89-341.
• Citation: 834 F. Supp. 1105
• Parties: Jonas H. WHITMORE, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

834 F. Supp. 1105

Jonas H. WHITMORE, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB-C-89-341.

United States District Court, E.D. Arkansas, Pine Bluff Division.

September 22, 1992.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM OPINION AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Petitioner Jonas H. Whitmore, an inmate in custody of the Arkansas Department of Correction, is under sentence of death for the 1986 murder of Essie Mae Black. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on grounds that both his conviction and sentence are in violation of various provisions of the United States Constitution. Having carefully reviewed the record,¹ the Court concludes each of the grounds advanced by petitioner in support of his petition for writ of habeas corpus is without merit.

I.

On the afternoon of August 14, 1986, the body of sixty-two-year-old Essie Mae Black was found in the bedroom of her home in Mount Ida, Arkansas, lying between two beds (Tr. 770, 779). She had been stabbed at least ten times in her front and back, her throat had been cut, and an "X" had been carved into the right side of her face (Tr. 820, 910-11, 916, 919-20). It was determined that $150 was missing from Mrs. Black's purse (which was found with its contents spilled out on a bed next to the body) and that $126 was missing from a kitchen drawer (Tr. 838, 844-46). A knife and clothing belonging to petitioner were found in a wooded area stained with blood of the same type as Mrs. Black (Tr. 889-91, 927-29, 932, 946, 953, 968-69, 1111, 1121, 1141). The labels had been removed from the clothes but were found in the same general area (Tr. 889-90, 895).

Petitioner was arrested on September 23, 1986, in Roundup, Montana and returned to Arkansas where, after a change of venue to Scott County, he was tried on a charge of capital murder (Tr. 18, 196, 239, 459-63). At trial, petitioner testified that on August 14, 1986, he was in Mount Ida looking for property to rent or buy and that he stopped at the home of Mrs. Black to ask her if she knew of any cheap trailer houses or property to rent or own in the area (Tr. 1060-63, 1096-99). Not knowing of anything right off hand, Mrs. Black invited petitioner inside her home to see if she could be of any help (Tr. 1063). Once inside, Mrs. Black sat down at a kitchen table and asked petitioner to hand her a purse that was sitting on what he described as a "buffet counter top or china closet or something that looked like an old antique" (Tr. 1064). Petitioner handed Mrs. Black the purse and a wallet or checkbook that had fallen out, and asked permission to use the restroom (Tr. 1064-65). When he emerged from the restroom, Mrs. Black was in the hallway talking on the telephone in an attempt to provide him with the information he was seeking (Tr. 1064-65, 1100, 1102-03, 1105-08). Petitioner testified that Mrs. Black mentioned a newspaper, which he noticed lying on the floor in the bedroom, and that when he bent down to pick it up, he experienced a "flashback" of his mother² (Tr. 1066-69, 1107-09, 1116). Exactly what happened next is not clear, but petitioner remembers his hand was moving "up and down" as he was telling Mrs. Black "don't mom, don't," and remembers later walking to his car with blood all over him (Tr. 1070, 1114-17, 1143). He testified that when he left the residence, Mrs. Black was sitting on the bed "whimpering" (Tr. 1070, 1114-16, 1118, 1129). Petitioner drove down the highway and pulled off into a wooded area where he removed the labels from his clothes and discarded the clothes because they were bloody (Tr. 1120-21, 1124). He washed his hands and the knife he was carrying but threw the knife away when he was unable to remove the blood (Tr. 1123-24). He later threw his shoes away, and drove into the town of Hot Springs, Arkansas, where he purchased a "fancy card" for his wife and a carton of cigarettes with a one-hundred-dollar bill (Tr. 1130-31). He later purchased gas with another one-hundred-dollar bill³ (Tr. 1132).

Petitioner was convicted of capital murder by a jury in the Scott County, Arkansas, Circuit Court and, following the penalty phase of his bifurcated trial, sentenced to death by lethal injection. The Arkansas Supreme Court affirmed his conviction and sentence on direct appeal, Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), and denied his request to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989).

The petition now before the Court was filed on June 28, 1989, and sets forth the following grounds for relief: (1) petitioner was denied effective assistance of counsel; (2) the Arkansas death penalty scheme is unconstitutional on its face and as applied; (3) improper admission of evidence at trial; and (4) petitioner is currently mentally incompetent and, thus, may not be executed.

II.

As an initial matter, the Court notes that the factual findings of the state courts concerning the issues raised by petitioner shall be presumed to be correct pursuant to 28 U.S.C. § 2254(d).

The findings made by the state-court system "shall be presumed to be correct" unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state court determination is not "fairly supported by the record," "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous." (Emphasis supplied.)

Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Any rejection of the state court factual findings must be accompanied by a statement explaining the habeas court's reasoning, in terms of the conditions listed in § 2254(d). Id. at 551-552, 101 S.Ct. at 771-772. "A federal court must more than simply disagree with a state court before rejecting its factual determination. Rather, a federal court must conclude that a state court's findings lack `even "fair support" in the record.'" Woods v. Armontrout, 787 F.2d 310, 313 (8th Cir.1986), cert. denied, 479 U.S. 1036, 107 S.Ct. 890, 93 L.Ed.2d 842 (1987). A federal court may not redetermine the credibility of witnesses when the state court's determination is fairly supported by the record. Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985). In addition, while a federal court must determine the ultimate legal question of the voluntariness of a confession, subsidiary questions, such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings, are entitled to the § 2254(d) presumption of correctness. Id. at 117, 106 S.Ct. at 453.

Petitioner does not assert that any of the seven conditions listed in § 2254(d) are present in his case and the Court finds the factual determinations made by the state courts are fairly supported by the record. Thus, the presumption applies.

III.

Petitioner first claims he received ineffective assistance of counsel at both the guilt and penalty phases of his trial.⁴ This Court considers petitioner's claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must show that "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. at 2064, and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.⁵ Unless petitioner makes both showings, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. at 2064. In assessing petitioner's claims of ineffective assistance of counsel, this Court's scrutiny of counsels' performance must be "highly deferential ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065.

The courts must resist the temptation to second-guess a lawyer's trial strategy; the lawyer makes choices based on the law as it appears at the time, the facts as disclosed in the proceedings to that point, and his best judgment as to the attitudes and sympathies of judge and jury. The fact that the choice later proves to have been unsound does not require a finding of ineffectiveness.

The petitioner bears the burden of successfully challenging particular acts and omissions of his attorney which were not the result of reasonable professional judgment; it is not enough to complain after the fact that he lost, when in fact the strategy at trial may have been reasonable in the face of an unfavorable case.

Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir.1987).

With these standards in mind, the Court will address in turn each of the claims of ineffective assistance of counsel.

A.

Petitioner argues counsel were ineffective during the guilt phase of his trial for failing to object to the prosecution's reference to a previous forgery conviction (Tr. 1140) and for themselves eliciting testimony from him regarding a twenty-three-year-old conviction for attempted robbery (Tr. 1141). He argues such evidence could not have been introduced under Rule 609 of the Arkansas Rules of Evidence and could not have served any strategic goal. Petitioner's argument is without merit on both counts.

The Arkansas Supreme Court would not have been receptive to an objection to the forgery conviction since it concluded that such evidence was in fact admissible under Rule 609. Whitmore v. State, 299 Ark. at 64, 771 S.W.2d at 270. Even had the Court ruled otherwise,...