Woodard v. Sargent, 83-2168

• Decision Date: 28 January 1987
• Docket Number: No. 83-2168,83-2168
• Citation: 806 F.2d 153
• Parties: Billy WOODARD, Appellant, v. Willis SARGENT, Warden, Cummins Unit, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 153

806 F.2d 153

Billy WOODARD, Appellant, v. Willis SARGENT, Warden, Cummins Unit, Arkansas Department of Correction, Appellee.

No. 83-2168.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 8, 1986.

Decided Nov. 20, 1986.

Rehearing and Rehearing En Banc Denied Jan. 28, 1987.

Reed E. Hundt, Washington, D.C., for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before McMILLIAN, ARNOLD, and JOHN R. GIBSON, Circuit Judges.

ARNOLD, Circuit Judge.

This death-penalty case is once again before us, on remand from the Supreme Court of the United States.

The appellant, Billy Woodard, has been tried by jury, found guilty of capital felony murder, and sentenced to death. See Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979). A petition for post-conviction relief under Ark.R.Crim.P. 37 has been denied. Woodard v. State, 273 Ark. 235, 617 S.W.2d 861, cert. denied, 454 U.S. 1068, 102 S.Ct. 618, 70 L.Ed.2d 603 (1981). Woodard then brought this petition for federal habeas corpus in the United States District Court for the Eastern District of Arkansas, which also denied relief. 567 F.Supp. 1548 (E.D.Ark.1983). When this case was last before us, on appeal from the District Court's denial of habeas corpus, we reversed, holding that Woodard's conviction was invalid under the rule of Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc), in which this Court held that so-called "death-qualified juries," from which all persons who refused to consider the death penalty had been excluded, were not fairly representative of the community and were not impartial on the question of guilt or innocence. Since Woodard's jury was "death-qualified," we directed that his conviction be set aside and that he be freed unless the State chose, within a reasonable time, to try him again before a constitutionally selected jury. Woodard v. Sargent, 753 F.2d 694 (8th Cir.1985).

In Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Supreme Court reversed our Grigsby holding. The Court held that "death-qualified juries," as such, are not unconstitutional. Thus, the ground upon which we set aside Woodard's conviction on the prior appeal is no longer valid, and in Woodard's case itself, the Supreme Court has granted certiorari, vacated our previous judgment, and remanded for reconsideration in light of Lockhart v. McCree. Sargent v. Woodard, --- U.S. ----, 106 S.Ct. 1964, 90 L.Ed.2d 650 (1986).

In view of the Supreme Court's holding in McCree, our previous disposition of Woodard's case obviously cannot stand. It now becomes our duty, therefore, to examine the various other arguments he makes against his conviction and sentence, none of which we reached on the prior appeal. See Woodard v. Sargent, 753 F.2d at 695 n. 1. We now hold that all of the arguments urged by Woodard as invalidating the conviction itself are without merit. The conviction will stand. The sentence of death, however, will be set aside as constitutionally invalid, for reasons to be explained in this opinion.

I.

We first note briefly those arguments Woodard makes that, if upheld, would have the effect of invalidating the conviction of capital felony murder itself. Logically, these arguments should be considered first, since, if any one of them is upheld, it would be unnecessary for us to go on to consider points that go only to the validity of the sentence. (This is why, on the prior appeal, we considered only the Grigsby argument, the effect of which was to set aside the conviction, and did not reach any of the other points urged by Woodard.)

Woodard attacks his conviction on a variety of grounds. He claims that his court-appointed counsel was constitutionally ineffective at the guilt phase of his trial; that a biased juror was allowed to remain on the jury, and not removed for cause; that prosecutorial misconduct occurred during the closing argument on the question of guilt or innocence; that it was constitutional error, in violation of the Sixth and Fourteenth Amendments, to admit into evidence a newspaper reporter's testimony of an interview given by the defendant while he was in custody; that the voir dire of the jury was not fairly conducted; and that involuntary statements were admitted against him, in violation of the Fifth and Fourteenth Amendments. ¹

We deem it unnecessary to discuss each of these arguments in detail. The District Court's ² opinion is thorough and comprehensive, and it explains in detail why each of these arguments lacks merit. As to these points, we affirm for the reasons given in the District Court's opinion. No purpose would be served by further elaboration on our part.

The result, on this branch of the case, is that Woodard's conviction will stand. If he is to receive habeas corpus relief from this Court, it will be with respect to his sentence only.

II.

Woodard also advances a variety of arguments in an attempt to establish that the death sentence was constitutionally invalid. Among other things, he argues that the "avoiding arrest" aggravating circumstance is invalid because it duplicates an element of the crime, that the comparative sentence review conducted by the Supreme Court of Arkansas is constitutionally inadequate, that the jury checklist of aggravating and mitigating circumstances improperly constrained the jury's discretion in violation of state law, and that a one-week delay between the guilt and penalty phases of the trial was so unfair as to deprive him of his life without due process of law. We have considered and now reject each of these arguments. Again, we adopt the reasoning of the District Court.

III.

There remain to be discussed three arguments urged by Woodard against the constitutional validity of his sentence, arguments not previously listed in this opinion. They are (1) that the pecuniary-gain aggravating circumstance unconstitutionally duplicated an element of the underlying offense of capital felony murder, in violation of the rule announced by this Court in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); (2) that Woodard's counsel was constitutionally ineffective in the penalty phase of the trial for failing to cause the trial court to call to the jury's attention a recently adopted mitigating circumstance, the absence of a prior criminal record; and (3) that the death penalty is disproportionately imposed on defendants convicted of murdering white people (Woodard's victim was white). We address each of these arguments in turn.

A.

Woodard was charged and convicted of "the unlawful killing of a human being when committed by a person engaged in the perpetration of ... robbery ...." Ark.Stat.Ann. Sec. 41-4702(A) (Supp.1973). This conviction placed Woodard in the class of persons eligible for the death penalty. It then became the duty of the jury to consider aggravating and mitigating circumstances and decide whether to sentence Woodard to death or to life imprisonment without parole. The jury found that two aggravating circumstances existed: "the capital felony was committed for pecuniary gain," Ark.Stat.Ann. Sec. 41-4711(e) (Supp.1973), and "the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody...." Ark.Stat.Ann. Sec. 41-4711(d) (Supp.1973). (We have already rejected Woodard's attack on the avoiding-arrest aggravating circumstance: although a consequence of every murder is the elimination of the victim as a potential witness, avoiding arrest is not necessarily an invariable motivation for killing, so this aggravating circumstance does not as a matter of logic necessarily duplicate an element of the underlying capital crime.)

The same cannot be said, however, with respect to the pecuniary-gain aggravating circumstance. Under Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), it is the duty of the state to provide a "meaningful basis for distinguishing the few [murder] cases in which [the death penalty] is imposed from the many cases in which it is not." (inner quotations omitted) Everyone who commits murder in the course of a robbery commits the crime for purposes of pecuniary gain. The pecuniary-gain aggravating circumstance, accordingly, fails to accomplish the narrowing or distinguishing objective set out in Godfrey.

In Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), we accepted this precise argument, holding that it is unconstitutional under the Eighth Amendment to impose the death penalty in cases of capital felony murder committed during the course of a robbery on the basis of the aggravating circumstance that the murder was committed for pecuniary gain. A petition for rehearing, with suggestions for rehearing en banc, was denied in Collins, and the Supreme Court denied certiorari. Collins is the law of this Circuit, and we, as a panel of the Court, have no power to re-examine it. E.g., Mizokami Brothers of Arizona, Inc. v. Mobay Chemical Corp., 798 F.2d 1196 (8th Cir.1986). The State of Arkansas contends that Collins was wrongly decided, arguing that it was based on misunderstandings as to state law, but we are powerless to consider this argument.

The State also argues that Collins should not be applied "retroactively." Collins was decided by this Court in 1985, while Woodard's trial took place long before, in March of 1976. Collins was a departure from prior law, according to the State, and therefore should not be applied to invalidate Woodard's sentence. When Woodard's case was first appealed to this Court from the District Court's denial of habeas corpus relief, counsel urged this argument. Woodard's case was argued before us during the same session of Court, and before the same panel, before which Collins was argued....