McCarthy, Kimberly Legayle:
Black; age 36 at crime; murder of white female age 71 in Lancaster
(Dallas County) on 7-21-1997; sentenced on 12-?-1998; reversed in
2001; resentenced on 11-1-2002. Executed by lethal injection on June
Date of Birth
Date of Offense
Age at Time of
Offense - 36
- Occupational therapist, waitress, home health care, laborer
Education - 12
Record - Two year sentence for one count of forgery, received
2/12/90, released on parole on 6/04/90, discharged 12/09/91
Location of Crime
- Dallas, Texas
Race and Gender of
Victim - White female
On 7/21/97, McCarthy entered the residence of a
70-year-old white female in Lancaster with the intent to rob the
victim. A struggle took place and victim was stabbed numerous times
resulting in her death. McCarthy then used the victim's credit cards
and used the victim's vehicle for transportation.
Source: Texas Department of Criminal Justice
Kimberly McCarthy Executed: Texas Carries Out
By Michael Graczyk - Associated Press
June 26, 2013
HUNTSVILLE, Texas — Texas marked a solemn moment in
criminal justice Wednesday evening, executing its 500th inmate since
it resumed carrying out capital punishment in 1982.
Kimberly McCarthy, who was put to death for the
murder of her 71-year-old neighbor, was also the first woman executed
in the U.S. in nearly three years.
McCarthy, 52, was executed for the 1997 robbery,
beating and fatal stabbing of retired college psychology professor
Dorothy Booth. Booth had agreed to give McCarthy a cup of sugar before
she was attacked with a butcher knife and candelabra at her home in
Lancaster, about 15 miles south of Dallas. Authorities say McCarthy
cut off Booth's finger to remove her wedding ring.
It was among three slayings linked to McCarthy, a
former nursing home therapist who became addicted to crack cocaine.
She was pronounced dead at 6:37 p.m. CDT, 20
minutes after Texas prison officials began administering a single
lethal dose of pentobarbital.
In her final statement, McCarthy did not mention
her status as the 500th inmate to be executed or acknowledge Booth or
"This is not a loss. This is a win. You know where
I'm going. I'm going home to be with Jesus. Keep the faith. I love you
all," she said, while looking toward her witnesses – her attorney, her
spiritual adviser and her ex-husband, New Black Panther Party founder
As the drug started to take effect, McCarthy said,
"God is great," before closing her eyes. She took hard, raspy, loud
breaths for several seconds before becoming quiet. Then, her chest
moved up and down for another minute before she stopped breathing.
Friends and family of Booth told reporters after
the execution that they were not conscious that Texas had carried out
its 500th execution since 1982. They said their only focus was on
Booth's brutal murder.
Five-hundred is "just a number. It doesn't really
mean very much," said Randall Browning, who was Booth's godson.
"'We're just thinking about the justice that was promised to us by the
state of Texas."
Donna Aldred, Booth's daughter, reading a statement
to reporters, said that her mother "was an incredible person who was
taken before her time."
Texas has carried out nearly 40 percent of the more
than 1,300 executions in the U.S. since the Supreme Court allowed
capital punishment to resume in 1976. The state's standing stems from
its size as the nation's second-most populous state as well as its
tradition of tough justice for killers.
Texas prison officials said that for them, it was
just another execution. "We simply carried out the court's order,"
said Texas Department of Criminal Justice spokesman Jason Clark.
With increased debate in recent years over wrongful
convictions, some states have halted the practice entirely. However,
32 states have the death penalty on the books. Though Texas still
carries out executions, lawmakers have provided more sentencing
options for juries and courts have narrowed the cases for which death
can be sought.
In a statement, Maurie Levin, McCarthy's attorney,
said "500 is 500 too many. I look forward to the day when we recognize
that this pointless and barbaric practice, imposed almost exclusively
on those who are poor and disproportionately on people of color, has
no place in a civilized society."
Outside the prison, about 40 protesters gathered,
carrying signs saying "Death Penalty: Racist and Anti-Poor," "Stop All
Executions Now" and "Stop Killing to Stop Killings." As the hour for
the execution approached, protesters began chanting and sang the old
Negro spiritual "Wade in the Water."
In recent years, Texas executions have generally
drawn fewer than 10 protesters. A handful of counter-demonstrators who
support the death penalty gathered in another area outside the prison
Executions of women are infrequent. McCarthy was
the 13th woman put to death in the U.S. and the fourth in Texas, the
nation's busiest death penalty state, since the Supreme Court in 1976
allowed capital punishment to resume. In that same period, more than
1,300 male inmates have been executed nationwide, 496 of them in
Texas. Virginia is a distant second, nearly 400 executions behind.
Levin, had asked the Texas Court of Criminal
Appeals to halt the punishment, arguing black jurors were improperly
excluded from McCarthy's trial by Dallas County prosecutors. McCarthy
is black; her victim white. All but one of her 12 jurors were white.
The court denied McCarthy's appeals, ruling her claims should have
been raised previously.
Prosecutors said McCarthy stole Booth's Mercedes
and drove to Dallas, pawned the woman's wedding ring she removed from
the severed finger for $200 and went to a crack house to buy cocaine.
Evidence also showed she used Booth's credit cards at a liquor store.
McCarthy blamed the crime on two drug dealers, but
there was no evidence either existed.
Her ex-husband, Michaels, testified on her behalf.
They had separated before Booth's slaying.
DNA evidence also tied McCarthy to the December
1988 slayings of 81-year-old Maggie Harding and 85-year-old Jettie
Lucas. Harding was stabbed and beaten with a meat tenderizer, while
Lucas was beaten with both sides of a claw hammer and stabbed.
McCarthy, who denied any involvement in the
attacks, was indicted but not tried for those slayings.
In January, McCarthy was just hours away from being
put to death when a Dallas judge delayed her execution.
McCarthy was the eighth Texas prisoner executed
this year. She was among 10 women on death row in Texas, but the only
one with an execution date. Seven male Texas prisoners have executions
scheduled in the coming months.
Kimberly McCarthy put
to death in Texas' 500th modern execution
By Jennifer Emily - DallasNews.com
June 26, 2013
HUNTSVILLE — Kimberly McCarthy’s death by lethal
injection Wednesday marked Texas’ 500th modern execution — reaching
that milestone well ahead of other states that allow capital
McCarthy, 52, was executed for the 1997 murder of a
71-year-old retired college professor, who was her neighbor in
Lancaster. McCarthy used the pretense of borrowing sugar to enter
Dorothy Booth’s home and stabbed Booth during a robbery to fuel her
crack-cocaine habit. She severed Booth’s finger while she was still
alive. Traces of Booth’s blood were found in McCarthy’s home.
McCarthy was also indicted but never tried in the
1988 deaths of two other elderly women.
As the drugs surged through McCarthy’s body
Wednesday evening, she looked toward the window of the room that held
her supporters, including her ex-husband, and thanked them. She looked
at the window where Booth’s daughter and granddaughter and friends
stood but did not address them.
“This is not a loss, this is a win. You know where
I am going,” McCarthy said as she lay strapped to a metal gurney
inside the death chamber with mint green walls. “I am going home to be
Then she smiled and began to snore. Her chest
briefly moved up and down rapidly. She lost consciousness, and Booth’s
family nodded in approval. McCarthy was declared dead at 6:37 p.m. —
20 minutes after she was given the lethal dose.
“Thank you,” Booth’s godson Randy Browning said as
he stood at the window and looked back at Greg Davis, the man who
Booth’s granddaughter, Leslie Lambert, cried as she
stood at the window, clutching paper towels.
A doctor checked McCarthy’s vital signs. Finding
none, he pulled a white sheet over her head. Only then did a prison
chaplain remove his right hand from McCarthy’s left leg as he held a
small copy of the New Testament in his left hand.
Afterward, Booth’s daughter, Donna Aldred, read a
statement thanking prosecutors and investigators for their efforts
that led to McCarthy’s execution.
“My mother, Dorothy Booth, was an incredible woman
who was taken before her time,” Aldred said. “After waning for nearly
16 years, the finality of today’s events have allowed me to completely
say goodbye to my mother.”
McCarthy was the 51st inmate from Dallas County to
be executed since 1982. In the U.S., only Harris County, Texas, with
115, has seen more people executed.
Despite being the most active death chamber in the
nation, executions in Texas have dropped steadily since 2000. That
year, there were 40. Last year, there were 15. McCarthy was the eighth
The state with the next highest total is Virginia,
which has had 110 modern executions.
Racial bias alleged
Maurie Levin, McCarthy’s attorney, said McCarthy’s
case was plagued by “shameful errors” of racial bias during jury
selection by Dallas County prosecutors and ineffective assistance of
McCarthy was black. Booth was white.
Levin said the Texas courts’ refusal to examine
McCarthy’s last-minute appeals this week about those issues “reflect
problems that are central to the administration of the death penalty
as a whole.”
Levin, a University of Texas law professor, has
represented defendants sentenced to death since 1983. She is
co-director of the school’s Capital Punishment Clinic.
McCarthy’s execution, as an “emblem of Texas’ 500th
execution, is something all Texans should be ashamed of,” Levin said.
Dallas County has a history of racial
discrimination during jury selection. The U.S. Supreme Court in 2005
reversed a 1986 conviction because of overt racial discrimination by
prosecutors. An investigation by The Dallas Morning News was
cited in the court’s concurring opinion as evidence of a continuing
problem of discrimination in the criminal justice system.
One of the 12 jurors at McCarthy’s 2002 retrial was
black. Levin said trial attorneys did not object to the exclusion of
other black jurors.
McCarthy received a second trial because an
appellate court ruled her confession to police was illegally obtained.
The second jury reached the same conclusion as the first and sent
McCarthy to death row.
McCarthy was charged and indicted but never tried
in the December 1988 deaths of two elderly black women. Maggie
Harding, 81, was stabbed and bludgeoned with a meat tenderizer. Jettie
Lucas, 85, was beaten with a claw hammer and stabbed with a knife.
McCarthy received two stays of executions this
year, but her appeals ran out Tuesday.
In the days before the execution, McCarthy was
placed on the prison’s “death watch.” Prison officials had recorded
her activities since 12:01 a.m. Monday. Notes from the watch say
McCarthy was sleeping, “reading and eating a peach,” “grooming herself
after a shower,” “packing her property” and “laying in bed doing a
She was given a new white prison uniform Wednesday
and offered, as her last meal, the same food other prisoners ate for
dinner: pepper steak, mashed potatoes with gravy, mixed vegetables and
white cake with chocolate icing.
A few dozen death penalty opponents gathered near
the prison where McCarthy was executed. Texas Department of Public
Safety officials blocked the street in front of the prison, keeping
people from in front of the building.
As witnesses walked in to McCarthy’s execution, the
protesters yelled, “We say, ‘Hell, no.’ ”
They could not be heard inside.
Woman who killed her neighbor and severed her
finger with a butcher's knife to steal her wedding ring will today
become the 500th inmate executed in Texas since 1982
June 26, 2013
Kimberly McCarthy will become the 500th convicted
killer in Texas to receive a lethal injection on Wednesday, barring a
The number far outpaces the execution total in any
other state. But it also reflects the reality of capital punishment in
the United States today.
While some states have halted the practice in
recent years because of concern about wrongful convictions, executions
continue at a steady pace in many others.
The death penalty is on the books in 32 states. On
average, Texas executes an inmate about every three weeks.
Jim Willett remembers the night of Dec. 6, 1982,
when he was assigned to guard a mortuary van that had arrived at the
death house at the Huntsville prison.
'I remember thinking: We're really going to do
this. This is really going to happen,' says Willett, who was a captain
for the Texas Department of Corrections.
When the van pulled away early the next morning, it
carried to a nearby funeral home the body of convicted killer Charlie
Brooks, who had just become the first Texas prisoner executed since a
Supreme Court ruling six years earlier allowed the death penalty to
resume in the United States.
What was unusual then has become rote. Still, even
as McCarthy prepares to die at the Huntsville Unit, it's clear that
Texas, too, has been affected by the debate over capital punishment.
In recent years, state lawmakers have provided more
sentencing options for juries and courts have narrowed the cases in
which the death penalty can be applied.
In guaranteeing DNA testing for inmates and
providing for sentences of life without parole, Texas could well be on
a slower track to execute its next 500 inmates.
'It's a very fragile system' as attitudes change,
said Mark White, who was Texas attorney general when Brooks was
executed and then presided over 19 executions as governor from 1983 to
'There's a big difference between fair and harsh...
I think you have (Texas) getting a reputation for being bloodthirsty,
and that's not good.'
Texas has accounted for nearly 40 percent of the
more than 1,300 executions carried out since murderer Gary Gilmore
went before a Utah firing squad in 1977 and became the first U.S.
inmate executed following the Supreme Court's clarification of death
(Texas had more than 300 executions before the
Virginia is a distant second, nearly 400 executions
behind. Texas' standing stems both from its size, with the nation's
second largest population, and its tradition of tough justice for
Still awaiting punishment in Texas are 282
Some may be spared. Supreme Court rulings have now
excluded mentally impaired people or those who were under 18 at the
time of their crime.
Legal battles continue over the lethal drugs used
in the process, mental competence of inmates, professional competence
of defense lawyers and sufficiency of evidence in light of DNA
Texas Gov. Rick Perry, who has presided over more
than half of the state's executions, said that the recent changes have
helped make Texas' system fairer.
In addition to the new sentencing options, he
signed bills to allow post-conviction DNA testing for inmates and
establish minimum qualifications for court-appointed defense
'I think our process works just fine,' Perry said
last year during his unsuccessful presidential campaign.
'You may not agree with them, but we believe in our
form of justice... We think it is clearly appropriate.' So do most
A 2012 poll from the Texas Tribune and the
University of Texas showed only 21 percent opposed to capital
Still, re-examinations of convictions have raised
questions about whether some of those executed may have been innocent.
The suspect cases included the 2004 execution of
Cameron Todd Willingham for the arson deaths of his three young
Arson experts consulted by a state panel determined
evidence used to gain the conviction did not meet scientific
But Texas Attorney General Greg Abbott later barred
the panel from further review of the trial evidence.
Over the years, the Texas execution list has
provided a portrait of violent crime in a state where many people are
armed, both good and bad, and juries have little tolerance for
Those executed have ranged from relatively common
cases - robbers who killed store clerks, drug users who killed other
drug users, spouses killing each other - to the bizarre and
Ronald Clark O'Bryan, nicknamed the 'Candy Man,'
poisoned his son's Halloween candy to collect on an insurance policy.
Angel Resendez, a serial killer, rode the rails,
stopping along the way to murder strangers. Lawrence Russell Brewer
dragged a black man behind a pickup truck in a racist killing.
In the prison town of Huntsville, executions have
become a well-worn ritual.
For more than 20 years, Dennis Longmire has been a
fixture outside the fortress-like prison on execution evenings,
holding a lit candle on a street corner.
Hundreds of demonstrators once gathered there but
interest has long since subsided.
'Texas continues to march to a different beat,' as
other states drop the death penalty, says Longmire, a criminal justice
professor at nearby Sam Houston State University. He calls the
execution total 'staggering.'
McCarthy, convicted of killing a 71-year-old
neighbor during a robbery in 1997, is among eight inmates scheduled
for execution over the next four months.
She would be the first female put to death in the
U.S. in three years and the 13th woman since the Supreme Court allowed
capital punishment to resume.
McCarthy, 52, was condemned for using a butcher
knife and candelabra to beat and fatally stab retired college
professor Dorothy Booth at the victim's Lancaster home.
Evidence showed the former nursing home therapist
used the knife to sever Booth's finger to steal her wedding ring.
McCarthy, who is linked to two other slayings,
already has had her execution date pushed back twice this year.
Her attorney, Maurie Levin, is trying to halt her
execution again, contending black jurors improperly were excluded from
her trial by Dallas County prosecutors.
Levin said there has been a 'pervasive influence of
race in administration of the death penalty and the inadequacy of
counsel — a longstanding issue here.'
Even remarkable incidents in the death ritual can
become mundane in the steady procession.
In 2000, Ponchai Wilkerson stunned officials when
he spit out a small handcuff key he had kept hidden in his mouth as he
prepared to die.
'In another state you live with that for a long
time,' said Willett, who became warden at the Huntsville Unit in 1998
and oversaw 89 executions. 'Here in Texas, another one is coming a few
days later and you've forgotten that one before.'
Kimberly McCarthy, Lancaster Woman Convicted of
Murdering Neighbor For Crack Money, Set to Die Jan. 29
By Eric Nicholson - DallasObsever.com
September 13, 2012
It was a grisly scene Lancaster police found on
July 22, 1997: Dorothy Booth, a 71-year-old retired psychology
professor, stabbed to death on the floor of her dining room stabbed,
her left ring finger severed from her hand.
The evidence quickly led police to Kimberly
McCarthy, Booth's next-door neighbor. McCarthy, police said, had taken
Booth's ring to sell for crack. Immediately after the killing, she
drove Booth's white Mercedes station wagon to a drug house, handed
over the keys to one of the occupants and told him, according to a
Morning News story, "I need some crack bad, give me a bump or
something." During her trial, a police officer testified that McCarthy
promised to confessed to the murder if he would give her crack.
A jury convicted her of capital murder. She was
indicted but not tried for the 1988 murders of Jettie Lucas and Maggie
Harding, both 85-year-old friends of McCarthy's mother. Lucas was
beaten with a hammer and stabbed to death in her kitchen.
McCarthy's conviction was overturned after an
appeals court determined that her confession was obtained illegally
after she'd requested a lawyer. She was convicted again and sentenced
to the death penalty upon retrial.
She's been on death row ever since, one of only 10
women awaiting execution in Texas, but she won't be for much longer.
McCarthy, now 51, is set to die on Jan. 29, per the Dallas County DA's
office. That will leave child killer Darlie Routier as Dallas County's
lone female inmate on death row.
Found guilty twice of murdering neighbor in ’97,
Dallas County woman on death row has appeal tossed
By Robert Wilonsky - DallasNews.com
July 11, 2012
On October 20, 2002, Kimberly Lagayle McCarthy was
convicted of capital murder; according to our Tim Wyatt at the time,
it took the jury about an hour to render its decision, making her only
the second Dallas County woman to be sentenced to death in the last
100-plus years — behind only Darlie Routier, who’s still quite living.
So too is McCarthy, though an appeals court today moved her one step
closer to the death chamber.
Her ’02 conviction was actually the second time in
four years the Lancaster woman was sentenced to die for the same July
1997 crime — the murder of her neighbor, a 71-year-old retired El
Centro psych professor named Dorothy Booth. McCarthy’s crime was
particularly savage, especially “brutal,” in the words of prosecutor
Bob Dark. She called Booth and said she was coming over to borrow
sugar. But instead, she stabbed Booth five times with a butcher knife,
hit her in the face with a candelabrum and cut off her left ring
finger in order to take her diamond wedding ring. As Wyatt wrote at
the time, “McCarthy pawned her victim’s diamond wedding ring for $200,
then drove Dr. Booth’s car to a Fair Park crack house to buy drugs.”
That wasn’t all. Per our 2002 story:
Ms. McCarthy also was caught using Dr. Booth’s
credit cards at a liquor store in the same neighborhood. She also had
Dr. Booth’s driver’s license. But the most crucial evidence in both
trials came with the forensic testing of a 10-inch butcher knife found
in Ms. McCarthy’s home. The knife had been washed, but forensics
experts dismantled its plastic handle and recovered a big enough
sample to match it to that of Dr. Booth’s genetic profile.
McCarthy had been convicted once before of the
murder, in November 1998. But in December 2001, an appeals court ruled
that McCarthy’s rights were violated when Dallas Police Detective
Dwayne Bishop obtained a written statement from McCarthy — in which
she blamed the murder on “‘Kilo’ and ‘J.C.,’ two guys I met in South
Dallas selling drugs” — after she had asked to talk to a lawyer. It
was admitted into evidence during the first trial; the court ruled,
6-2, that a visiting judge should have done no such thing. As our
Holly Becka wrote on December 13, 2001, “Prosecutors introduced the
statement to discredit her account as compared with the state’s
evidence and to prove, at the least, that Ms. McCarthy could be found
guilty as a party to the crime.”
Her conviction was overturned then, but not today:
The United States Court of Appeals for the Fifth Circuit denied
McCarthy’s latest round of appeals. This time, McCarthy once again
pointed to that controversial statement — this time insisting it
showed that she didn’t commit the murder, and that it offered proof
she was being cooperative in the investigation. The appeals court
ruled, well, of course her attorney didn’t enter the statement into
evidence: “Counsel was well-aware of the fact that introducing the
statement at punishment could have harmed McCarthy’s case.”
McCarthy also objected to the fact her counsel
allowed Booth’s daughter, Donna Aldred, to remain in the courtroom
after she’d been called as a witness. During the trial McCarthy’s
attorney tried to get the judge to declare a mistrial, insisting “the
jury’s observation of Dr. Aldred’s emotional reaction to the crime
scene photographs was extremely prejudicial to McCarthy’s case,” but
the judge denied the motion. And today the court once more ruled
Female gets death sentence, again
Death sentence for woman who killed neighbor
Dallas Morning News
November 1, 2002
A Dallas County jury took less than 3 hours Friday
to decide on the death penalty in the retrial of a Lancaster woman
accused of killing and then robbing her neighbor.
The same jury convicted Kimberly Lagayle McCarthy
of capital murder on Tuesday for the July 1997 murder of retired
psychology professor Dorothy Booth.
In 1998, Ms. McCarthy became the 2nd Dallas County
woman in a century to be sentenced to death, but her 1st conviction
She was granted a new trial in December when the
Texas Court of Criminal Appeals agreed that a statement taken by a
Dallas police detective violated her constitutional rights. Ms.
McCarthy will now return to women's death row, joining the only other
woman in Dallas County sentenced to death: Rowlett housewife Darlie
During the punishment phase of the trial, jurors
heard testimony that linked Ms. McCarthy, 41, to 2 other 1988 murders,
committed days apart.
Testimony showed Ms. McCarthy telephoned Dr. Booth
early in the morning of July 21, 1997, to borrow sugar. Instead, she
robbed and killed her 71-year-old neighbor, stabbing her 5 times with
a large butcher knife and bludgeoning her with a candlestick.
The same morning Dr. Booth was killed, prosecutor
Greg Davis told jurors, Ms. McCarthy pawned her victim's diamond
wedding ring for $200, then drove Dr. Booth's car to a Fair Park crack
house to buy drugs. Dr. Booth's ring finger was cut off to remove the
Ms. McCarthy also was caught using Dr. Booth's
credit cards at a liquor store in the same neighborhood. She also had
Dr. Booth's driver's license.
But the most crucial evidence in both trials came
with the forensic testing of a 10-inch butcher knife found in Ms.
McCarthy's home. The knife had been washed, but forensics experts
dismantled its plastic handle and recovered a big enough sample to
match it to that of Dr. Booth's genetic profile.
The jury also heard testimony of the capital murder
charges Ms. McCarthy faces in the December 1988 deaths of Maggie
Harding, 81, and Jettie Lucas, 85.
Physical evidence -- including more DNA testing --
links Ms. McCarthy to slayings in which Ms. Lucas was beaten with a
claw hammer and stabbed with a knife. Ms. Harding was stabbed and
bludgeoned with a metal meat tenderizer.
Family members of both victims testified that Ms.
McCarthy knew the women through her mother and that she gained entry
to their homes because they trusted her.
Woman, 37, gets death in killing / '97 slaying
occurred to feed drug habit
November 25, 1998
A 37-year-old woman was sentenced to death Tuesday
for the July 1997 stabbing and bludgeoning death of her neighbor,
becoming the second Dallas County woman this century to get the death
A Dallas County jury convicted Kimberly Lagayle
McCarthy of Lancaster of capital murder last week in the death of
Dorothy Booth, a 71-year-old retired college professor. McCarthy also
is accused of killing two other elderly women.
McCarthy could have gotten life in prison, with a
minimum 40 years to serve before becoming eligible for parole. Jurors
deliberated Monday and Tuesday before reaching their decision. The
only other Dallas County woman sentenced to death this century is
Darlie Routier, convicted last year of killing her 5-year-old son.
Authorities believe McCarthy was allowed into
Booth's home on the pretense of borrowing sugar and almost immediately
began attacking her neighbor with a butcher knife. Police said
McCarthy also robbed Booth and smashed her face with a candelabra.
Investigators found a knife with Booth's blood on
it in McCarthy's home. A DNA expert testified that McCarthy's blood
was found in the homes of both the suspect and victim.
Prosecutors said McCarthy's motive was to feed a
crack cocaine habit.
During the sentencing phase, prosecutors also
introduced evidence accusing McCarthy of killing two other women -
Maggie Harding, 81, and Jettie Lucas, 85 - a decade earlier with
Investigators said Harding was attacked with a meat
tenderizer and knives, and Lucas was beaten with a claw hammer and
stabbed with knives.
Authorities said McCarthy knew the two women
through family contacts.
McCarthy is the wife of Aaron Michaels, the founder
of the New Black Panther Party, which he describes as a self-help
group for African-Americans and poor people. They were married in 1993
and have a 5-year-old son. Michaels, whose legal name is McCarthy,
filed for divorce in 1996 and the couple separated before Booth's
Michaels testified during the sentencing phase of
her trial that his wife had problems with crack cocaine but has been
clean since their son was born.
United States District Court
For the Northern District of Texas
May 9, 2011
Lagayle McCarthy, Petitioner,
Rick Thaler, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent.
The opinion of the court was
delivered by: Reed O'Connor United States District Judge
MEMORANDUM OPINION AND
Petitioner Kimberly LaGayle
McCarthy ("McCarthy"), convicted and sentenced to death for capital
murder, petitions the court on nine grounds for a writ of habeas
corpus. Concluding that two grounds are procedurally barred and that
McCarthy is not entitled to relief on the remaining grounds under the
standards prescribed by the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), the Court denies the petition and dismisses
this action with prejudice.
On July 21, 1997 McCarthy entered the home of her 71-year-old
neighbor Dorothy Booth under the pretense of borrowing some sugar and
then "stabbed Mrs. Booth five times, hit her in the face with a
candelabrum, cut off her left ring finger in order to take her diamond
ring, and nearly severed her left little finger as well." McCarthy v.
State, No. 74590, 2004 WL 3093230, at *2 (Tex. Crim. App. 2004).
McCarthy then took Mrs. Booth's purse and its contents, along with her
wedding ring and fled in her car. Later, McCarthy bought drugs with
the stolen money, used the stolen credit cards, and pawned the stolen
wedding ring. This was the last in a series of robbery-murders that
McCarthy committed against her elderly female acquaintances.
On August 18, 1997, McCarthy
was charged with capital murder for causing Booth's death in the
course of committing and attempting to commit robbery. (Vol. 1, State
Clerk's Record, "CR", at 2-3) Her first conviction and death-sentence
in 1998 was reversed on direct appeal by the Texas Court of Criminal
Appeals ("CCA"). See McCarthy v. State, 65 S.W.3d 47 (Tex. Crim. App.
2001) (hereinafter "McCarthy I"). She was subsequently tried and found
guilty of capital murder in November of 2002, which was affirmed, see
McCarthy v. State, 2004 WL 3093230 ("McCarthy II"), and her petition
for a writ of certiorari was denied by the Supreme Court of the United
States. McCarthy v. Texas, 545 U.S. 1117 (2005). McCarthy filed her
second state habeas action on August 24, 2004, which was denied
(without an evidentiary hearing in the trial court) by the CCA on
September 12, 2007. Ex parte McCarthy, No. 50,360-02, 2007 WL 2660306
(Tex. Crim. App. 2007). On September 11, 2008, McCarthy filed in this
court a petition for a writ of habeas corpus within the one-year
McCarthy seeks habeas-corpus
relief on the following nine grounds:
1. Trial counsel was
ineffective for waiving Texas evidence rule 614 and allowing the
victim's daughter to remain in the courtroom after she testified.
2. Trial counsel was
ineffective for failing to offer McCarthy's written statement in the
punishment stage of her trial.
3. The Texas death-penalty
procedures violate due process by failing to require the state to
disprove mitigating circumstances beyond a reasonable doubt.
4. The Texas death-penalty
procedures violate due process because the use of the term
"probability" undermines the requirement that the state prove future
dangerousness beyond a reasonable doubt.
5. Trial counsel was
ineffective for failing to object to the trial court's charge on
6. The trial court violated
McCarthy's due process rights by failing to grant her motion to set
aside the indictment because it did not allege lack of mitigation and
future dangerousness as elements of the offense.
7. The Texas death-penalty
procedures are unconstitutional because prosecutors are allowed
"unfettered discretion" to seek the death penalty.
8. Appellate counsel was
ineffective for failing to raise certain record issues.
9. Cumulative error.
Respondent answered on
December 11, 2008, and asserts that McCarthy's first, fourth and
seventh claims are procedurally barred from review in this court.
(Ans. at 12-15, 19-21, 29-30). Respondent also makes a general
assertion that McCarthy has not exhausted all of her claims, but did
not identify any specific claim that was not exhausted. (Ans. at 3.)
III. PROCEDURAL BAR
Respondent asserts that
McCarthy's first, fourth and seventh claims are procedurally barred
from federal habeas review. A federal court may not consider the merit
s of a habeas claim if a state court has denied relief due to a
procedural default. Sawyer v. Whitley, 505 U.S. 333, 338 (1992). The
state court opinion must contain a "plain statement" that its decision
rests on adequate and independent state grounds. Harris v. Reed, 489
U.S. 255, 261-62 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir.
1992). To be an adequate ground for denying relief, the state
procedural rule must be strictly or regularly applied to similar
claims. See Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982); Johnson v.
Puckett, 176 F.3d 809, 824 (5th Cir. 1999). A petitioner can overcome
a procedural default only by showing: (1) cause for the default and
actual prejudice; or (2) that the application of the state procedural
bar would result in a fundamental miscarriage of justice. See Smith v.
Johnson, 216 F.3d 521, 524 (5th Cir. 2000).
In her first claim, McCarthy
complains that trial counsel was ineffective for agreeing to waive
enforcement of Texas Rule of Evidence 614 to exclude the deceased
victim's daughter from the courtroom after she had concluded her
testimony. (Pet. at 43-48.) Respondent claims that federal habeas
review of this claim is barred because it was not raised in the direct
appeal and the state habeas court "recommended that the claim be
summarily rejected on procedural grounds because McCarthy could have
and should have raised it on direct appeal." (Ans. at 29-30.)
Respondent relies upon a state procedural rule (the "Gardner rule")
requiring any claims that could be made in the direct appeal rather
than by habeas review, must be made in the direct appeal. See Ex parte
Gardner, 959 S.W.2d 189, 198-200 (Tex. Crim. App.1998). However, the
state habeas court's findings that imposed the Gardner rule to this
claim were expressly excepted from the findings adopted in the order
denying habeas relief. See Ex parte McCarthy, 2007 WL 2660306, at *1.
This is not the kind of plain statement of reliance upon a state
procedural rule that would bar federal habeas review of the merits of
Further, a state procedural
default for failure to raise an ineffective assistance of trial
counsel claim in the direct appeal does not appear to have been
regularly followed in the Texas courts and is therefore insufficient
to bar federal habeas review. Such claims were not generally expected
to be raised on direct appeal, where review was limited to the trial
record, but instead were to be presented in habeas corpus proceedings,
where the record could be properly developed. Discussing ineffective
assistance of counsel claims, the CCA has reaffirmed "[a]s we have
done many times before . . . that the record on direct appeal is
usually inadequate to address ineffective assistance claims." Roberts
v. State, 220 S.W.3d 521, 533 (Tex. Crim. App.), cert. denied, 552
U.S. 920 (2007). "Direct appeal is usually an inadequate vehicle for
raising such a claim because the record is generally undeveloped."
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing
Thompson v. State, 9 S.W.3d 808, 813-814 (Tex. Crim. App. 1999)). In
fact, Respondent acknowledges that "ineffective-assistance-of-counsel
claims are generally exempted from this procedural bar because they
typically depend on evidence that is usually outside the record."
(Ans. at 5 n.2) (citing Ex parte Torres, 943 S.W.2d 469, 475 (Tex.
Crim. App. 1997)). Accordingly, the state rule precluding
consideration of record claims on direct appeal was not clearly relied
upon as the basis for denial of this claim in the state courts, and
was not firmly established and regularly followed at the time of
McCarthy's direct appeal regarding ineffective-assistance-of-counsel
claims. This claim will be addressed on the merits. See infra Section
In her fourth claim,
McCarthy complains that the future dangerousness special issue
submitted to her jury allowed this finding on an inadequate standard
of proof due to the use of the term "probability." (Am. Pet. at
57-62.) Respondent asserts that this claim is barred by the state
court's reliance on McCarthy's failure to raise this at trial in
violation of the Texas contemporaneous objection rule. (Ans. at
12-13.) The state habeas court denied this claim as waived by the
failure to raise it at trial. (SHF No. 55-56; SHR at 218.) This
finding was adopted by the CCA in denying relief. See Ex parte
McCarthy, 2007 WL 2660306, at *1. The Texas contemporaneous objection
rule has been found to be an independent and adequate state ground to
bar federal habeas review. See Scheanette v. Quarterman, 482 F.3d 815,
823 (5th Cir. 2007); Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.
1999). Respondent argued that McCarthy was attempting to avoid the
application of this procedural bar by showing that her appointed
counsel was ineffective for failing to object at trial. (Ans. at
13-14). However, rather than raising this as an attempt to avoid the
procedural bar to this claim, McCarthy asserts the ineffective
assistance of counsel as a separate claim, which is denied on its
merits below. Therefore, McCarthy's fourth claim is denied as
In her seventh claim,
McCarthy asserts that the Texas death-penalty scheme violates the
Eighth and Fourteenth Amendments because it allows the prosecution
unfettered discretion in its decision to seek the death penalty. (Am.
Pet. at 69-71.) Respondent asserts that this claim is barred by the
state court's reliance on McCarthy's failure to raise this record
claim in her direct appeal in violation of the Gardner rule. (Ans. at
19-21.) The state habeas court denied this claim as forfeited under
the Gardner rule. (SHF No. 81-82; SHR at 225.) This finding was
adopted by the CCA in denying relief. See Ex parte McCarthy, 2007 WL
2660306, at *1. The Texas Gardner rule has been found to have been
firmly established and regularly followed prior to McCarthy's trial in
2003. See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007)
(citing Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)).
Therefore, it is an independent and adequate state ground to bar
federal habeas review. See Dorsey, 494 F.3d at 532. McCarthy's seventh
claim is denied as barred.*fn2
IV. STANDARD OF REVIEW
McCarthy's habeas petition
is governed by 28 U.S.C. § 2254, as amended by the AEDPA.
Consideration of the merits of exhausted claims is controlled by §
2254(d) which provides,
An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim--
(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision
that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
Id. The AEDPA limits rather
than expands the availability of habeas relief. See Fry v. Pliler, 551
U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362, 412 (2000).
"By its terms § 2254(d) bars relitigation of any claim 'adjudicated on
the merits' in state court, subject only to the exceptions in §§
2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. --------, 131
S.Ct. 770, 784 (2011). "This is a 'difficult to meet,' and 'highly
deferential standard for evaluating state-court rulings, which demands
that state-court rulings be given the benefit of the doubt.'" Cullen
v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011) (internal
citations omitted) (quoting Harrington v. Richter, 131 S.Ct. at 786,
and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Under the "contrary to"
clause, a federal court may grant the writ of habeas corpus if the
state court either arrives at a conclusion opposite to that reached by
the United States Supreme Court on a question of law or decides a case
differently from the United States Supreme Court on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. at
412-13; Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). Under
the "unreasonable application" clause, a federal court may grant a
writ of habeas corpus if the state court either unreasonably applies
the correct legal rule to the facts of a particular case or
unreasonably extends a legal principle from Supreme Court precedent to
a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.
Williams, 529 U.S. at 407. The standard for determining whether a
state court's application was unreasonable is an objective one and
applies to all federal habeas corpus petitions which, like the instant
case, were filed after April 24, 1996, provided that they were
adjudicated on the merits in state court. See Lindh v. Murphy, 521
U.S. 320, 327 (1997).
In the context of habeas
corpus, "adjudicated on the merits" is a term of art referring to a
state court's disposition of a case on substantive rather than
procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.
1997). Federal habeas review of claims adjudicated on the merits in
state court is limited to the record that was before the state court.
"[E]vidence introduced in federal court has no bearing on § 2254(d)(1)
review. If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of §
2254(d)(1) on the record that was before that state court."
Pinholster, __ U.S. __, 131 S.Ct. at 1400. Relief under 28 U.S.C. §
2254(d)(2) requires a showing that the state-court adjudication
constituted "an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."
V. INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL
McCarthy's first, second,
and fifth grounds for relief complain that she was provided
ineffective assistance of counsel at her trial.
A. Applicable Law.
The Sixth Amendment of the
United States Constitution guarantees a criminal defendant "reasonably
effective assistance" of counsel. Strickland v. Washington, 466 U.S.
668, 687 (1984). To obtain habeas relief on a claim of ineffective
assistance of counsel, the petitioner must prove (1) that counsel's
performance was deficient and (2) that it prejudiced the defendant.
Id. To dispose of an ineffective assistance claim, a federal habeas
court need not address both prongs of this standard. Strickland, 466
U.S. at 700; Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994).
Failure to establish either requirement necessarily defeats the claim.
Strickland, 466 U.S. at 697; Smith v. Puckett, 907 F.2d 581, 584 (5th
In measuring whether
counsel's representation was deficient, a petitioner must show that
counsel's representation fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 687-88; Lackey v. Johnson, 116
F.3d 149, 152 (5th Cir. 1997). "It is well settled that effective
assistance is not equivalent to errorless counsel or counsel judged
ineffectively by hindsight." Tijerina v. Estelle, 692 F.2d 3, 7 (5th
Cir. 1982). A court reviewing an ineffectiveness claim must indulge a
strong presumption that counsel's conduct fell within the wide range
of reasonable professional competence or that, under the
circumstances, the challenged action might be considered sound trial
strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Wilkerson v.
Collins, 950 F.2d 1054, 1065 (5th Cir. 1992).
To satisfy the second prong
of the Strickland test, the petitioner must show that counsel's errors
were so egregious as to deprive the defendant of a fair trial whose
result is reliable. Strickland, 466 U.S. at 687. The test to establish
whether there was prejudice is whether "there is a reasonable
probability that, but for the counsel's unprofessional errors, the
trial would have been different." Id. at 694. A reasonable probability
is "probability sufficient to undermine confidence in the outcome."
Id. It is not enough for a habeas petitioner to merely allege
deficiencies on the part of counsel. The petitioner must affirmatively
plead the resulting prejudice in the habeas petition. Hill v.
Lockhart, 474 U.S. 52, 60 (1985); Bridge v. Lynaugh, 838 F.2d 770, 773
(5th Cir. 1988).
To obtain federal habeas
relief on an ineffective-assistance-of-counsel claim under the AEDPA
standard of review, a petitioner is required to demonstrate that the
state court's decision on the ineffective assistance claim was
contrary to, or an unreasonable application of, the standards set
forth under Strickland. See Schaetzle v. Cockrell, 343 F.3d 440,
443-44 (5th Cir. 2003). Given the presumption of competence required
in Strickland, this makes federal habeas review of a state court's
denial of such a claim "doubly deferential." Pinholster, __ U.S. __,
131 S.Ct. at 1403 (citing Knowles v. Mirzayance, 556 U.S. ------, 129
S.Ct. 1411, 1420 (2009), and Yarborough v. Gentry, 540 U.S. 1, 5--6
(2003) (per curiam)). A state prisoner seeking federal habeas relief
on such grounds "must demonstrate that it was necessarily unreasonable
for the [state court] to conclude: (1) that he had not overcome the
strong presumption of competence; and (2) that he had failed to
undermine confidence in the jury's sentence of death." Id.
As discussed in Section III
above, McCarthy claims in her first ground for relief that her trial
counsel provided ineffective assistance by agreeing to waive
enforcement of Texas Rule of Evidence 614 ("the Rule") and allowing
the deceased victim's daughter to remain in the courtroom during
trial. (Am. Pet. at 43-48.) However, neither prong of the Strickland
test is satisfied.
The proper enforcement of
the Rule would not have excluded the victim's daughter from remaining
in the courtroom after she finished testifying. "The purpose of
placing witnesses under the rule is to prevent the testimony of one
witness from influencing the testimony of another, consciously or
not." Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005).
The victim's daughter testified first to identify the victim and her
belongings. (Vol. 22, State reporter's record, "RR", at 14-29; SHF
Nos. 8; SHR at 205.) At the conclusion of her testimony, she was
finished testifying and the Rule would have had no further application
to her. Also, state law contains an exception for victims, which would
include close relatives of a deceased victim, even if they were to be
recalled to the stand at some later time. See Tex.Crim. Proc.Code Ann.
art. 36.03(a), (b) (Vernon 1998). Therefore, trial counsel should not
be faulted for not taking a certain legal action to prevent a result
that the legal action would not have prevented.
However, even if enforcing
the Rule would have excluded the victim's daughter from the trial,
waiving it was reasonable and sound trial strategy. Trial counsel
negotiated a waiver of the Rule as to the victim's daughter in
exchange for the prosecutor's agreement to allow McCarthy's family to
remain in the courtroom as well. (22 RR at 3; Aff. of Gregory Davis at
1; SHF Nos. 8, 11; SHR at 137, 205-06.) Since the victim's daughter
sat through this same evidence in the first trial without incident,
there was no indication of any problem with her sitting through the
second trial. (Aff. of Gregory Davis at 1-2; SHF No. 11; SHR at
137-38, 206.) Again, trial counsel's conduct is not shown deficient.
Even if trial counsel's
conduct could somehow be considered constitutionally deficient in this
situation, the outcome of the trial would not have been any different.
The daughter testified first. Later, she was briefly overcome with
emotion, and her husband took her out of the courtroom. (22 RR at
14-29, 60; SHF Nos. 8, 16-19; SHR at 205, 207-08.) Trial counsel took
all reasonable actions, including a motion for mistrial, and the
victim's daughter remained outside of the courtroom for the remainder
of the trial. (22 RR at 61-62; SHF No. 8, 12; SHR at 205-06.) Several
witnesses and considerable time and intervening circumstances occurred
before the jury considered its verdicts. (SHF Nos. 8, 17; SHR at 205,
207-08.) Any effect that this may have had on the verdict was
attenuated and is not shown to have prejudiced McCarthy's trial.
McCarthy's second claim is
that trial counsel was ineffective for failing to introduce her
"statement" in the punishment phase of her trial. Again, neither prong
of Strickland is satisfied.
According to state law,
"self-serving declarations of the accused are ordinarily inadmissible
in his behalf, unless they come under some exception, such as: being
part of the res gestae of the offense or arrest, or part of the
statement or conversation previously proved by the State, or being
necessary to explain or contradict acts or declarations first offered
by the State." Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App.
1988) (quoting Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim.
App. 1974)). The state habeas court found that McCarthy's statement
would not have been admissible by the defense. (SHF No. 25; SHR at
209.) The Supreme Court has "repeatedly held that a state court's
interpretation of state law, including one announced on direct appeal
of the challenged conviction, binds a federal court sitting in habeas
corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v.
McGuire, 502 U.S. 62, 67--68 (1991); Mullaney v. Wilbur, 421 U.S. 684,
691 (1975)); Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009),
cert. denied, __ U.S. __, 131 S.Ct. 1050 (2011). Therefore, this Court
must consider it inadmissible under state law and trial counsel should
again not be faulted for failing to take a useless action.
Even were it admissible, it
was again reasonable and sound trial strategy to not introduce it.
McCarthy's first conviction and death sentence were reversed because
the prosecution used this statement at the trial. McCarthy I, 65
S.W.3d at 56. In that reversal, the CCA characterized this statement
as painting such a bad picture of McCarthy that its admission tainted
the jury's consideration of her case. Id. at 55-56. As observed by the
state habeas court, "the Court of Criminal Appeals said the statement
was 'used to paint appellant as an unrepentant liar and set out her
cruel and greedy motive for killing her elderly neighbor.'" (SHF No.
29; SHR at 210) (quoting McCarthy I, 65 S.W.3d at 56). Also, the
confession contained statements inconsistent with the defense in the
second trial. As the state habeas court noted, those portions of this
statement that might have aided in her defense at punishment
(emphasizing her drug addiction and her claim to not have actually
been the one to kill the victim) were presented to the jury through
other means that did not carry the negative aspects of the written
statement. (SHF Nos. 33-34; SHR at 211-12.) These findings and
conclusions are reasonable. Therefore, the result would not have been
any better for McCarthy had this statement been admitted again in the
In McCarthy's fifth claim,
she complains that trial counsel failed to make certain objections to
the court's charge. (Pet. at 63-64.) As shown in the next section,
these objections would have lacked merit. See infra Section VI. Trial
counsel "cannot have rendered ineffective assistance of counsel by
failing to make an objection that would have been meritless." Turner
v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007) (citing Green v.
Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998)); see also Clark v.
Collins, 19 F.3d 959, 965-66 (5th Cir. 1994) (failure to raise
meritless objection is not ineffective assistance). Therefore, it was
not ineffective to forego these meritless objections.
McCarthy's first, second and
fifth claims are denied for lack of merit.
VI. STATE DEATH-PENALTY
In her third and sixth
claims, McCarthy challenges the Texas death-penalty system based on an
extension of the principles announced in Ring v. Arizona, 536 U.S. 584
(2002), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v.
United States, 526 U.S. 227 (1999). However, such an extension would
not authorize federal habeas relief under the AEDPA, and both of these
claims have already been rejected in this Circuit.
A. Applicable Law.
Construing requirements in
federal trials, the Supreme Court in Jones v. United States, noted
that "under the Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt." Jones, 526 U.S. at 243, n.6. Later,
the Court held that the Fourteenth Amendment incorporates this Sixth
Amendment requirement to state trials, holding that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at
490. Finally, the Court further applied this to prohibit "a sentencing
judge, sitting without a jury," from finding "an aggravating
circumstance necessary for imposition of the death penalty." Ring, 536
U.S. at 609.
In her third ground for
relief, McCarthy claims that the mitigation special issue violates due
process in that it failed to require the state to prove the absence of
mitigating circumstances beyond a reasonable doubt. (Pet. at 52-57.)
This claim has been repeatedly rejected in this Circuit. See Rowell v.
Dretke, 398 F.3d 370, 376-78 (5th Cir. 2005); Granados v. Quarterman,
455 F.3d 529, 536 (5th Cir. 2006); Scheanette v. Quarterman, 482 F.3d
at 828. The Sixth Amendment requirement set forth in Apprendi and Ring
do not apply to mitigating factors. See Ring, 536 U.S. at 597 n.4;
Apprendi, 530 U.S. at 490, n.16 (noting "the distinction the Court has
often recognized between facts in aggravation of punishment and facts
in mitigation" (internal citation omitted)). Therefore, no violation
of the Sixth Amendment is shown. See also Avila v. Quarterman, 560
F.3d 299, 314-15 (5th Cir.), cert. denied, Avila v. Thaler, __ U.S.
__, 130 S.Ct. 536 (2009) (recognizing precedent foreclosing
petitioner's complaint of the lack of a jury finding of mitigating
evidence beyond a reasonable doubt).
In her sixth claim, McCarthy
complains that the indictment failed to charge the punishment special
issues. (Pet. at 65-68.) She argues that these special issues were the
"functional equivalent" of elements of the offense, and that because
these issues were not presented to a Grand Jury and charged in the
indictment, her rights under the Due Process Clause of the Fifth
Amendment and the notice and jury trial guarantees of the Sixth
Amendment were violated. (Pet. at 67-68.) This argument is similar to
that denied in this district in Kerr v. Thaler, 2009 WL 2981906, at
As Respondent points out,
those complaints relating to McCarthy's right to indictment would not
raise a federal claim, but only a claim arising out of state law,
since she does not allege that it deprived the state court of
jurisdiction. (Ans. at 26, citing McKay v. Collins, 12 F.3d 66, 68
(5th Cir. 1994)). The Fifth Amendment right to indictment has not been
incorporated into the Due Process Clause of the Fourteenth Amendment
as applicable to the states. See Hurtado v. California, 110 U.S. 516
(1884); Albright v. Oliver, 510 U.S. 266, 272 (1994) (noting that the
Fifth Amendment right to indictment was not among the Bill of Rights
provisions incorporated into the Fourteenth Amendment). Therefore,
"the specific requirements of the Fifth Amendment pertaining to
federal indictments are among the few provisions of the Bill of Rights
not incorporated into the Fourteenth Amendment requirements imposed on
the states." Kerr, 2009 WL 2981906, at *4. Accordingly, any of the
requirements set out in Jones for federal indictments would not apply
to state criminal prosecutions.
Even so, McCarthy
misapprehends the rule of Apprendi and Ring and its application to
Texas procedures. These cases make an important distinction between
the eligibility determination and the narrowing of jury discretion in
making the ultimate decision whether to impose a death penalty. The
requirements of Apprendi and Ring apply only to the eligibility
determination, which is made in the guilt stage of Texas capital
trials, and not to the special issues in the punishment stage. As the
district court explained in Kerr,
Under the Texas
death-penalty system, the eligibility determination is made by looking
to the aggravating factors elevating a murder to a capital offense,
e.g., committing the murder in the course of another felony offense
such as aggravated sexual assault. See Tex. Penal Code § 19.03(a)(2).
This determination is to be made in the guilt phase upon elements
alleged in the indictment, as it was in this case.
The special issues in Texas
do not set forth aggravating factors for this eligibility
determination, but instead are designed to narrow the jury's
discretion in making the ultimate decision whether to impose the death
penalty. See Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49
L.Ed.2d 929 (1976). Therefore, these special issues are not elements
of the offense that must be alleged in an indictment and proven by the
prosecution beyond a reasonable doubt. 2009 WL 2981906, at *5
(internal record citation omitted). The aggravating factor that
elevated the murder committed by McCarthy to capital murder was that
she committed it in the course of robbery. (1 CR 2); McCarthy v.
State, 2004 WL 3093230, at 1; Tex. Penal Code § 19.03(a)(2). This was
properly charged and proof before the jury was required beyond a
reasonable doubt. (2 CR at 540-43, 545.) The requirements of Apprendi
and Ring do not apply to McCarthy's punishment special issues.
Therefore, her third and sixth claims are denied for lack of
ASSISTANCE OF APPELLATE COUNSEL
In her eighth claim for
relief, McCarthy complains that her appellate counsel failed to raise
certain claims on direct appeal, but she does not include those
omitted claims in the body of her petition. Instead, she describes
them as "Grounds for Relief One, Two, Three, Four, Six, Seven, Eight,
Ten and Eleven in Petitioner's State Habeas Writ." (Pet. at 72-74.)
This incorporates by reference state court records that were not filed
with the petition and not available to this court until provided later
by Respondent. Instead, McCarthy referenced a different list of claims
in Petition Exhibit C, being a list of claims made in his direct
appeal, apparently to show that her desired claims were omitted. This
manner of pleading does not provide the clarity and particularity
sought by Rule 2(c) of the Rules Governing 28 U.S.C. § 2254 Cases in
the United States District Courts. See Mayle v. Felix, 545 U.S. 644,
655 (2005) ("Habeas Corpus Rule 2(c) is more demanding" than the
federal rules of civil procedure so that the district court may
determine whether to dismiss or require a response). Therefore, this
claim may be dismissed on that basis, but is further addressed in the
interests of justice.
A review of the state court
record reveals that the following grounds raised in the state habeas
proceedings are the ones made the subject of this claim. The first
state habeas ground asserted ineffective assistance of trial counsel
as a violation of the Sixth Amendment for waiving the Rule and
allowing the deceased victim's daughter to remain in the courtroom,
and the second ground asserted the same complaint as a violation of
state law. (SHR at 35.) The third state habeas ground asserted
ineffective assistance of trial counsel as a violation of the Sixth
Amendment for failing to present McCarthy's written statement to the
police, and the fourth ground asserted the same complaint as a
violation of state law. (SHR at 41.) The sixth state habeas ground
complained that the future dangerousness special issue allowed a
finding on an inadequate standard of proof due to the use of the term
"probability." (SHR at 48.) The seventh state habeas ground asserted
ineffective assistance of trial counsel as a violation of the Sixth
Amendment for failing to object to the failure of the future
dangerousness special issue to present the correct burden of proof,
and the eighth ground asserted the same complaint as a violation of
state law. (SHR at 53.) The tenth ground for state habeas relief
asserted that the Texas death-penalty procedures violate the United
States Constitution by allowing the prosecution "unfettered
discretion" in deciding to seek the death penalty, and the eleventh
ground asserted this same complaint as a violation of state law. (SHR
A. Applicable Law.
In reviewing a claim
alleging ineffective assistance of appellate counsel, the traditional
Strickland standard described in Section V, supra, applies. See
Blanton v. Quarterman, 543 F.3d 230, 240 (5th Cir. 2008); Busby v.
Dretke, 359 F.3d at 714. Appellate counsel's failure to pursue relief
on a ground that would not have prevailed on appeal will not
constitute ineffective assistance. See Styron v. Johnson, 262 F.3d
438, 450 (5th Cir. 2001); see also, Penson v. Ohio, 488 U.S. 75, 83-84
(1988) (appointed appellate counsel need not make frivolous
arguments); Medellin v. Dretke, 371 F.3d 270, 279 (5th Cir. 2004)
(where omitted claim lacks merit, ineffective assistance of counsel
claim based on failure to raise claim on appeal also lacks merit);
Clark v. Collins, 19 F.3d at 965-66 (failure to raise objection that
was meritless at the time not ineffective assistance of counsel);
Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994) (where issue
lacks merit, failure to raise issue on appeal cannot satisfy prejudice
prong of Strickland ).
The first, third, sixth,
seventh, and tenth grounds for state habeas relief are also presented
as grounds in this petition for federal habeas relief. The ineffective
assistance of counsel claims presented in McCarthy's first state
habeas ground (waiving the Rule), third state habeas ground (failing
to present the confession), and seventh state habeas ground (failing
to complain about the future dangerousness special issue) have each
been found to lack merit as set forth above. See supra, Section V. The
sixth ground for state habeas relief constitutes an unwarranted
extension of the Ring v. Arizona line of cases as shown in the
analysis contained in Section VI above. See Scheanette, 482 F.3d at
827-28 (approving use of term "probability" in the future
dangerousness special issue). The tenth ground for state habeas
relief, which is also set forth as the seventh ground for
federal habeas relief in
this proceeding, complains that the state death-penalty procedures
allow the prosecutor "unfettered discretion" in the decision of
whether to seek the death penalty. The legal argument provided in
support of this theory is that "[t]he Supreme Court has long held that
'a system of law and of justice that leaves to the uncontrolled
discretion of judges or juries the determination whether defendants
committing these [capital] crimes should die or be imprisoned' runs
afoul of the Eighth and Fourteenth Amendments." (Pet. at 71, citing
Furman v. Georgia, 408 U.S. 238 (1972).) However, Furman did not limit
prosecutorial discretion, and a similar complaint that the
constitutional restriction in Furman is violated when a "state
prosecutor has unfettered authority to select those persons whom he
wishes to prosecute for a capital offense and to plea bargain with
them" was expressly rejected in Gregg v. Georgia, 428 U.S. 153, 199
(1976). The state court on habeas review also found in the alternative
that this claim lacked merit, which suggests that it would not have
prevailed on the direct state appeal. (SHF Nos. 83-87; SHR at 225-26.)
McCarthy has not shown any likelihood of success if this issue had
been raised in her direct appeal.
The second, fourth, eighth,
and eleventh grounds for state habeas relief relied upon state
constitutional grounds. The state habeas court found that each of
these grounds lacked merit. (SHF Nos. 4; SHR at 203-04.) "Under §
2254, federal habeas courts sit to review state court misapplications
of federal law. A federal court lacks authority to rule that a state
court incorrectly interpreted its own law." Charles v. Thaler, 629
F.3d 494, 500-01 (5th Cir. 2011) (citing Schaetzle v. Cockrell, 343
F.3d at 448-49 , Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995),
and Moreno v. Estelle, 717 F.2d 171, 178--79 (5th Cir. 1983)).
McCarthy has not shown that
any of the grounds that her appellate counsel failed to raise on
direct appeal would prevailed, and they all appear to be meritless
grounds. Therefore, appellate counsel was not ineffective, and her
eighth claim for federal habeas relief is denied.
In her ninth and final
claim, McCarthy asserts cumulative error as a ground for habeas
relief. (Pet. at 74-75.) "Federal habeas corpus relief may only be
granted for cumulative error in the conduct of a state trial where (1)
the individual errors involved matters of constitutional dimension
rather than mere violations of state law; (2) the errors were not
procedurally defaulted for habeas purposes; and (3) the errors so
affected the entire trial that the resulting conviction violates due
process." Turner v. Quarterman, 481 F.3d 282, 301 (5th Cir. 2007)
(quoting Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992)
(internal citation omitted)); Kessel v. Quarterman, No. H-07-4578,
2008 WL 2596662, at *10 (S.D.Tex., Jun. 25, 2008). Since there is no
error to cumulate, this claim is denied.
Upon review of the papers,
pleadings and records in this case, the Court finds that McCarthy has
failed to establish that the state courts' adjudication of her grounds
for relief resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States. See 28 U.S.C.A.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. at 412-13; Chambers v.
Johnson, 218 F.3d at 363. McCarthy has further failed to demonstrate
that the state courts' decisions were based upon any unreasonable
determinations of the facts in light of the evidence presented in the
state court proceedings. See 28 U.S.C.A. § 2254(d)(2); Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Therefore, the petition
for writ of habeas corpus is DENIED.
In accordance with Fed. R.
App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the record
in this case, the court denies McCarthy a certificate of
appealability. The court finds that the petitioner has failed to show
(1) that reasonable jurists would find this court's "assessment of the
constitutional claims debatable or wrong," or (2) that reasonable
jurists would find "it debatable whether the petition states a valid
claim of the denial of a constitutional right" and "debatable whether
[this court] was correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 483-84 (2000).
Court of Criminal Appeals of Texas
McCARTHY v. STATE
Kimberly Lagayle McCARTHY, Appellant,
The STATE of Texas.
December 12, 2001
Douglas H. Parks, Dallas, for Appellant.Karen R. Wise, Asst. DA,
Dallas, Matthew Paul, State's Atty., Austin, for State.
On November 17, 1998, a jury convicted appellant of the capital
murder of Dr. Dorothy Booth, an elderly retired professor, a murder
which was alleged to have occurred on July 21, 1997. See Tex. Penal
Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure Article
37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death.
See Tex.Code Crim. Proc. Ann. Art. 37.071 § 2(g).1
Direct appeal to this Court is automatic. See Article 37.071
§ 2(h). Appellant raises nineteen points of error, but does not
challenge the sufficiency of the evidence at either stage of the
trial. We will reverse.
Appellant argues in her first point of error that the trial court's
admission of her custodial statement violated her right to counsel
under the Fifth and Fourteenth Amendments to the United States
Constitution. Appellant specifically asserts that the statement was
inadmissible because the police questioned her without an attorney
present after she had unambiguously invoked her right to counsel.2
The trial court held a hearing on appellant's motion to suppress
her statement. At the hearing, the evidence showed that Sergeant
Patrick Stallings of the Lancaster Police Department arrested
appellant on July 24, 1997. Stallings stated that after he arrested
appellant, he tried to interview her. He testified that “during the
interview, [appellant] said she wanted to give a statement, and at the
beginning when we started to take the statement, she asked me to write
it, then she invoked her right to have an attorney.” Stallings
stopped the interview at that point. Appellant also told Stallings
that “she did not want to talk with us any further.” Stallings
testified that he could not interview appellant any further because
she had asked for an attorney. He did not provide her with an
attorney, but he did immediately cease the interview. Appellant was
transferred from Lancaster to the Lew Sterrett Justice Center in
On July 28, 1997, Detective Dwayne Bishop of the Dallas Police
Department telephoned Stallings to inquire about the case. Bishop
told Stallings that Aaron McCarthy, appellant's husband, asked Bishop
to speak with appellant at the Dallas County Jail. Stallings discussed
the facts of the case with Bishop and faxed three pages of related
information to Bishop. Stallings testified that, “prior to the time
Detective Bishop ever went to see” appellant, Stallings “clearly told
[Bishop] that [he] had tried to talk to her, she invoked her right not
to talk to [him] and invoked her right to an attorney.” It was
Stallings' understanding that Bishop would “try to get a statement
from her.” Bishop testified, however, that Stallings failed to
inform him that appellant had invoked her right to counsel.
On July 29, 1997, Bishop visited appellant at the Sterrett Center.
Bishop testified that he read appellant her Miranda rights.3
According to Bishop, appellant stated that she understood her rights
and indicated that she wanted to continue talking without the presence
of an attorney. Bishop testified that he did not threaten or coerce
appellant or promise her anything in exchange for her statement. The
record, however, does show that Bishop made no attempt to determine if
appellant had an attorney so that he could contact that attorney.
The record also demonstrates that appellant did not initiate the
meeting with Bishop.
Appellant argued in support of her pre-trial motion to suppress her
custodial statement that:
The defendant's position, Your Honor, is that she clearly invoked
her right to counsel prior to the time she made any statement.
Defendant's position is that she clearly invoked her Fifth Amendment
privilege and the rights afforded to her under 38.22 of the Texas Code
of Criminal Procedure, the rights given to her by Article I, Section
19 and 189 of the Texas Constitution not the make any statement and
not to-well, invoke her right to counsel.
We think the evidence is clear that after she invoked those rights,
agents of law enforcement approached her and initiated further
contact, and as a result of that this statement is produced. We feel
that this is a violation of those rights guaranteed to the defendant
and we would ask that the statement be quashed.
The State did not respond. The trial court summarily ruled that
the statement was admissible. When the State moved to admit
appellant's statement into evidence during its case-in-chief at trial,
appellant renewed her objection. The trial court stated that its
prior ruling stood and admitted the statement.4
Appellant argues on appeal that her statement was inadmissible
because Bishop approached her and initiated further contact after she
invoked her right to counsel. She is correct.
Once a suspect has invoked the right to counsel during questioning
by law enforcement, the Fifth Amendment right to counsel has been
invoked and all interrogation by the police must cease until counsel
is provided or the suspect reinitiates conversation. See Edwards v.
Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981);
Miranda, 384 U.S. at 474, 86 S.Ct. 1602; Dinkins v. State, 894
S.W.2d 330, 350-51 (Tex.Crim.App.1995).
This is a clear, “bright line” constitutional mandate frequently
repeated by the United States Supreme Court. See Minnick v.
Mississippi, 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990)
(tracing the historical reiterations of the rule and noting that
“[t]he merit of the Edwards decision lies in the clarity of its
command and the certainty of its application”). This bright and
unbending rule “conserves judicial resources which would otherwise be
expended in making difficult determinations of voluntariness, and
implements the protections of Miranda in practical and straightforward
terms.” Minnick, 498 U.S. at 151, 111 S.Ct. 486.5
State courts are not free to deviate from the firm constitutional
mandate set out in Edwards.
There is no evidence in this record that appellant consulted with
counsel before Detective Bishop questioned her. There is no evidence
in this record that appellant herself affirmatively reinitiated
conversations with law enforcement. The State does not argue that
appellant waived her right to counsel in either of these modes.
Instead, the State contends that Bishop did not, in fact, coerce or
badger appellant into making a written statement, and therefore, the
underlying purpose of the Edwards rule was fulfilled. That may be
true. However, the Edwards rule acts as a “clear and unequivocal”
guideline to law enforcement precisely because it is “relatively
rigid.” See Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093,
100 L.Ed.2d 704 (1988). When a person subjected to custodial
interrogation unambiguously invokes the right to counsel, all
questioning must cease. Interrogation may not be reinitiated by the
police 6 at
any time or in any manner unless the person has consulted counsel.
Id. at 681-82. Period.
The State also argues that Detective Bishop did not know that
appellant had invoked her right to counsel. Whether or not Stallings
informed Bishop of appellant's invocation of her right to counsel is
irrelevant because courts impute knowledge of the invocation of any
Miranda rights to all representatives of the State. See Michigan v.
Jackson, 475 U.S. 625, 634, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986);
Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990).
Moreover, Stallings' sworn testimony revealed that he informed Bishop
that appellant invoked her right to counsel and that Stallings ceased
his interrogation of appellant after that invocation.
In sum, the Edwards rule does not take into account the good
intentions of the individual police officer, the lack of official
coercion or badgering in the particular case, or the actual
voluntariness of a person's custodial statement. Edwards represents a
bright and firm constitutional rule that applies to all suspects and
all law enforcement officers. We hold, therefore, that the trial
court erred in admitting appellant's statement into evidence.
We must now determine whether this error harmed appellant. Texas
Rule of Appellate Procedure 44.2(a) provides that where, as here, the
appellate record in a criminal case reveals constitutional error, we
must reverse a judgment of conviction or punishment unless we
determine beyond a reasonable doubt that the error did not contribute
to the conviction or punishment. See Tex.R.App.P. 44.2(a). We
begin by reviewing the trial record to determine how the State used
appellant's statement against her.
We first note that the State offered ample evidence of appellant's
guilt from sources independent of her statement. Dr. Booth's
daughter testified that, six months prior to her death, Dr. Booth told
her that “the black lady that lived across the alley” called her in
the middle of the night and asked to borrow money. The victim's
caller ID records showed that she received two calls from an anonymous
number on July 22, 1997, at 6:19 a.m. and 6:29 a.m. Harry Wilkins,
Jr., aka, “Smiley,” testified that appellant was driving the victim's
white Mercedes Benz station wagon when she met him on the morning of
July 22, 1997, to inquire about buying crack cocaine. The State
further showed that appellant pawned the victim's diamond ring on July
22, 1997, and that she used the victim's credit cards at several
locations on July 23, 1997. When appellant was arrested on July 24,
1997, she attempted to take with her a tote bag containing the
victim's driver's license and several of the victim's credit cards.
The State's strongest independent evidence of appellant's guilt was
produced when the police executed a search warrant at appellant's home
on July 24, 1997. Officers found a large knife stained with Dr.
Booth's blood in appellant's kitchen cabinet above the refrigerator.
The bloody knife matched other knives found in the kitchen drawers of
Nevertheless, the State relied on appellant's statement
extensively, both during its case-in-chief and during its closing
arguments. Initially, the State used the statement to set up
appellant's version of what happened on the early morning of July 21,
1997. The State used the statement to discredit appellant's version
of events as compared to the State's principle theory of the case-that
appellant acted alone in the murder and robbery of Dorothy Booth.
For example, during direct-examination of Bishop, the State asked him
if appellant included in her statement a way for the State to further
identify “Kilo and J.C.” or find them. Bishop responded in the
negative, casting doubt on whether “Kilo and J.C.” even existed.
During its closing argument at guilt/innocence, the State rhetorically
asked the jury: if there really were a “Kilo and J.C.,” why would
they hide the murder weapon in appellant's kitchen cabinet? The
State also questioned why “Kilo and J.C.” left appellant alone in the
victim's car with all of the stolen property while they went inside a
crack house to negotiate the purchase of drugs.
Additionally, the State made significant use of this statement to
establish appellant's guilt for the capital murder of Dr. Booth. The
State admitted the statement through the testimony of its last witness
during its case-in-chief, as the last exhibit placed before the jury
for its consideration. The State used the statement during the
presentation of its case to prove that appellant knew Dr. Booth and
called her on the morning of the offense to make sure Dr. Booth was
home and awake. Even though appellant tried to lay blame for the
robbery on “Kilo and J.C.,” the State used the statement to show that
appellant was aware that “Kilo and J.C.” planned to rob Dr. Booth.
Bishop also testified that appellant never said in her statement that
she left, or tried to leave, to call the police during any of the
times that “Kilo and J.C. left her alone in the car.” Instead, the
statement showed that appellant remained at the scene of the crime for
three to five minutes. The State, during its direct examination of
Bishop, demonstrated to the jury the length of a five minute period by
having Bishop sit silently on the witness stand while the prosecutor
let five minutes tick off of his watch. After this, the State
allowed Bishop to reiterate that appellant never tried to leave the
scene to get help from anyone.
The State also used appellant's statement during its case-in-chief
to show how her post-offense behavior indicated her guilt. The State
used the statement to place evidence of flight from the police before
the jury. Specifically, during her account of the attempt to trade
Dr. Booth's property to “Smiley” for drugs, appellant states that the
police stopped “Smiley” in the victim's car in front of “Smiley's”
house. In her statement, appellant recounted how she ran out the
back door of “Smiley's” house and hid before returning to get the car
keys back from “Smiley.”
Appellant's statement was used in the State's examination of Bishop
to point out several obvious falsehoods made by appellant. Toward
the end of Bishop's testimony, the State questioned Bishop regarding
appellant's oral comments. After her statement was written and
signed, appellant told Bishop that portions of her statement were not
true. According to Bishop, appellant then told him:
That she would tell the truth. Number one, she didn't want to get
the death penalty; and, number two, if she was going to get the death
penalty, that if she can get just one rock of cocaine, then she would
tell the truth, but she wanted to get one rock of cocaine before she
The State then passed Bishop to appellant for cross-examination.
Lastly, the State relied extensively on appellant's statement
during its closing arguments to the jury at guilt/innocence.
Appellant's inadmissible statement became the rhetorical strawman that
the State effectively decimated. The State made no less than ten
references to appellant's statement in its arguments. The State
referred to the statement as proof that it was appellant who called
Dr. Booth on the morning of the murder. It pointed out in argument
that appellant went to Dr. Booth's door to get sugar in order to get
Dr. Booth to open her door. The State argued that it eliminated its
first suspect, “Smiley,” from suspicion in the murder of Dr. Booth
because appellant explained in her statement that she allowed “Smiley”
to borrow Dr. Booth's car for a few hours in exchange for drugs. The
State used appellant's statement to remind the jury that appellant ran
from the police at “Smiley's” house “to avoid detection for this
offense.” The State pointed to appellant's statement as proof that
appellant had possession of Dr. Booth's property and converted it to
cash to buy drugs.
During its final closing argument in rebuttal, the State again
relied on appellant's statement, citing it as direct evidence of her
guilt. First, the State argued that “Kilo and J.C.” existed only in
appellant's statement. The State asked the jury if it made sense to
it that “Kilo and J.C.” would want property so badly that they would
kill Dr. Booth, take her property, go to south Dallas, leave appellant
with all of this stolen property, and walk away. The attorney for
the State then argued before the jury,
[STATE]: Now, let's assume just for the moment there was this
alleged Kilo and J.C. Let's assume that. Let me show you the ways
you can find her guilty.
One, you can find her guilty as being the one who actually killed
Ms. Booth and took her property.
Two, you can find her guilty as to what they call a party. If
acting with intent to promote or assist in the commission of the
offense, okay, she then solicits, encourages or aids J.C. and Kilo. In
her own statement she called-she called them, she aided them, she
walked over there. It was because of her Ms. Booth opened the door
and said, sure, you can find them as a party on that portion.
There is a third portion you can find her guilty for capital murder
on. That's called a conspiracy theory. Okay?
What are we talking about when we talk about conspiracy.
Well if people conspire to commit one offense and another offense
is committed by one of the conspirators actions, then all conspirators
are guilty of the offense committed.
So even if you take her statement, okay, and she talks with them,
that's conspiring with them about committing a robbery and she aids
them, we know that, and either one of those alleged people goes in and
kills Ms. Booth, then she can be convicted on conspiracy theory,
theory number 3, okay, three ways you can convict.
The trial court instructed the jury on the law of parties and the
law of conspiracy in the abstract. The trial court also instructed
the jury on the law of parties in the second alternative application
paragraph, and on the law of conspiracy on the third alternative
application paragraph. Thus, the State used appellant's statement as
direct evidence of her guilt as a party or co-conspirator.7
The State also asked the jury to look to appellant's statement to
find her motive for committing the capital murder of Dr. Booth.
[STATE]: On the TV you hear the words sometimes motive, means and
opportunities. We are not required to prove motive, but I want to
cover those with you to show how we put the facts of the together.
Motive, financial problems, wanted crack. We know that even from
her own statement. Okay?
Lastly, the prosecutor used appellant's statement to help explain
the murder weapon.
[STATE]: Think about this, Folks. In her statement-here's where
the truth rings. In her statement she never ever mentions the knife.
What did they threaten her with if they did? Never mentions a
knife. She never mentions them picking it up taking it out of the
house. These are dope dealers. What did they need to get a knife
She never mentions them taking it back to her house. She never
once mentions the knife.
Because the knife is what ties her into the crime.
In analyzing whether the constitutionally erroneous admission of a
defendant's statement was harmless, we look first to Satterwhite v.
Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). In
Satterwhite, the Supreme Court emphasized that the decision on
harmlessness was not determined solely on the basis of whether there
was sufficient evidence, independent of the defendant's inadmissible
statement, for a reasonable jury to reach the same conclusion which it
had reached with the statement.
The Court of Criminal Appeals thought that the admission of [the
tainted] testimony on this critical issue was harmless because the
“properly admitted evidence was such that the minds of the average
jury would have found the State's case (on future dangerousness)
sufficient ․ even if the testimony had not been admitted.” The
question, however, is not whether the legally admitted evidence was
sufficient to support the death sentence, which we assume it was, but
rather, whether the State has proved “beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.”
486 U.S. at 258-59, 108 S.Ct. 1792. The principle set out in
Satterwhite still applies to this Court's review of harm in the
admission of appellant's statement into evidence because this is
federal constitutional error under Tex.R.App. P. 44.2(a). We must
review whether the admission of appellant's statement contributed to
the jury's verdict of guilty in this cause, regardless of whether
there is evidence independent of the statement that is otherwise
sufficient to sustain the jury's verdict of guilt.
“An appellate court should not focus on the propriety of the
outcome of the trial.” Wesbrook v. State, 29 S.W.3d 103, 119
(Tex.Crim.App.2000). If there is a reasonable likelihood that the
error materially affected the jury's deliberations, then the error is
not harmless beyond a reasonable doubt. See Satterwhite, 486 U.S. at
256-257; Wesbrook, 29 S.W.3d at 119. The reviewing court should
calculate, as nearly as possible, the probable impact of the error on
the jury in light of the other evidence. See Wesbrook, 29 S.W.3d at
A defendant's statement, especially a statement implicating her in
the commission of the charged offense, is unlike any other evidence
that can be admitted against the defendant. See Arizona v.
Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
In Fulminante, the defendant was convicted through the use of a
statement obtained in violation of his Fifth and Fourteenth Amendment
rights. See id. at 287-88, 111 S.Ct. 1246. The Supreme Court noted
[A] defendant's own confession is probably the most probative and
damaging evidence that can be admitted against him. … [T]he
admissions of a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about his past
conduct. Certainly, confessions have profound impact on the jury, so
much so that we may justifiably doubt its ability to put them out of
mind even if told to do so.
See id. at 296, 111 S.Ct. 1246. In this case, appellant's
statement did not place the murder weapon in her own hands, as the
defendant's confession did in Fulminante. But her statement was, as
the State's attorney so effectively pointed out in his closing
argument, powerful enough to establish her guilt of capital murder
either as a party or as a conspirator. It was also used to paint
appellant as an unrepentant liar and set out her cruel and greedy
motive for killing her elderly neighbor.
A confession is likely to leave an indelible impact on a jury. “If
the jury believes that a defendant has admitted the crime, it will
doubtless be tempted to rest its decision on that evidence alone,
without careful consideration of the other evidence in the case.
Apart, perhaps, from a videotape of the crime, one would have
difficulty finding evidence more damaging to a criminal defendant's
plea of innocence.” Fulminante, 499 U.S. at 313, 111 S.Ct. 1246
(Kennedy, J., concurring).
Regardless of whether there was, apart from appellant's statement,
sufficient evidence to conclude that the outcome of the trial was
proper, we find it impossible to say there is no reasonable likelihood
that the State's use of appellant's statement materially affected the
jury's deliberations. See Wesbrook, 29 S.W.3d at 119; Garcia v.
State, 919 S.W.2d 370, 380 (Tex.Crim.App.1994). We cannot conclude,
beyond a reasonable doubt, that the admission of appellant's
unconstitutionally obtained statement did not contribute to the jury's
verdict of guilty.
Although we are slow to overturn the verdict of a jury, when
fundamental constitutional protections are violated, however
innocently, we must uphold the integrity of that law. Accordingly,
we sustain appellant's first point of error.8
We reverse the judgment of the trial court and remand this cause to
that court for a new trial.
If appellant's statement were truly a confession, in the sense that
in it appellant admitted that she murdered Mrs. Booth, I would agree
with the Court that its admission harmed appellant. Questions of
harm and of the applicability of cases dealing with the improper
admission of confessions are complicated, however, by the fact that
when appellant gave her voluntary statement to Detective Bishop, she
meant it to be exculpatory. And it was exculpatory. If the jury
had believed what appellant said in her statement, the jury could have
decided that appellant acted under duress on the morning of the murder
and that she was not guilty of any crime at all. The introduction of
the statement provided the jury with an option that did not exist in
the absence of the statement.
In fact, and not surprisingly, appellant fashioned her defense
around the statement. Max Courtney, director of a crime lab,
testified that he was furnished photographs, witness statements,
police statements, prosecution reports, autopsy reports, and more.
From those items, he determined that nothing in the physical evidence
at the murder scene was inconsistent with appellant's statement to
Detective Bishop. Courtney further testified that the physical
evidence at the murder scene appeared to be consistent with two
different pairs of shoes leaving marks in the entryway, and with a
bloody knife mark that did not match the knife found in appellant's
Because of the admission of appellant's statement, the trial court
included in the jury charge an instruction on duress. Defense
counsel was also able to argue duress to the jury, contending that
appellant was coerced into helping Kilo and J.C. and that her
statement was consistent with the evidence.
The defense of duress, and Max Courtney's testimony backing up the
story in the statement, were available to appellant because her
statement was admitted at trial. It is true that appellant was stuck
with that particular defense once the statement was admitted, but she
got the benefit of having the defensive theory she herself devised
placed before the jury without having to testify. Moreover, if she
had testified to facts inconsistent with the Kilo-J.C. duress story,
the State could have introduced the statement to impeach her
Appellant's options became limited the moment she gave the statement,
regardless of whether the State introduced it during its
case-in-chief. The possibility of raising an actual defense other
than duress was, to all intents and purposes, foreclosed by the
State's ability to use appellant's statement for impeachment.
Setting aside consideration of the statement, there was abundant
evidence that appellant killed Mrs. Booth. Appellant was seen
driving Mrs. Booth's car within about an hour of the murder.
Appellant pawned Mrs. Booth's ring that same day. Appellant used
Mrs. Booth's credit cards several times and had the credit cards and
Mrs. Booth's driver's license when arrested. Police found a large
knife, cleaned but stained with Mrs. Booth's blood, in appellant's
kitchen cabinet. The knife matched others found in appellant's
The ultimate question is whether the admission of the statement
contributed to appellant's conviction or punishment.2
The Kilo-J.C. story offered an explanation for all of the above
evidence, to one extent or another. Without the Kilo-J.C. story,
there was no explanation. And because the Kilo-J.C. story was
available for impeachment purposes, appellant was limited in her
ability to propose a different defense to the jury.
The evidence that fit least well with the Kilo-J.C. story was the
evidence that was also, absent the story, most incriminating, namely:
the knife. The appearance of what was apparently one of appellant's
own knives, cleaned, in her kitchen cabinet, with the victim's blood
under the handle, is consistent with the Kilo-J.C. story because
according to the story, the two men were at appellant's house both
before and after the murder. Counsel suggested in argument that the
men took the knife and then after the murder put it in the cabinet to
incriminate appellant. In the absence of the Kilo-J.C. story, there
is no explanation at all for the presence of the bloody knife in
appellant's kitchen cabinet. The Kilo-J.C. story offers an
explanation for the other evidence, such as appellant's possession of
Mrs. Booth's car, credit cards, and ring. It may or may not be a
very good explanation, and in fact the jury rejected it. But it was
better than no explanation, which is what appellant had absent the
admission of the statement.
The State used appellant's statement to argue that she was a liar.
Showing a defendant to be a liar could establish harm. But in this
case, the very same evidence that tended to show appellant was a liar
was the evidence that tended to show she was a murderer. If the jury
believed that the presence of the knife in appellant's kitchen, for
instance, showed that appellant lied about Kilo and J.C., then the
jury also believed that appellant had the murder weapon hidden in her
kitchen cabinet, with no explanation for it being there.
The State also used appellant's statement to put her at Mrs.
Booth's house the morning of the murder. But appellant's possession
of the victim's car and other property shortly after the murder ties
her to the murder anyway. Her statement at least attempted to
explain that possession in a manner consistent with innocence.
Absent the statement, there was no explanation. Her statement was
buttressed by Max Courtney's testimony about two possible different
shoe prints and a possible different knife, and supported by his claim
that everything appellant said beginning with “I called my neighbor
Dorothy Booth” to “both guys went back into my house and came out with
my jam box, cordless phone and caller ID” was consistent with the
physical evidence at the murder scene.
The State argued to the jury that it could find appellant guilty of
capital murder even if it believed her story about Kilo and J.C., by
convicting her as a party or as a conspirator. But that is not true
unless the jury disbelieved the claim of duress. Of course, the jury
could believe one part of the statement and disbelieve other parts,
but if the jury had believed all of it, appellant would have been
acquitted. Even if the jury believed only part of the statement,
appellant was still no worse off than she would have been with no
defensive theory at all, or with whatever defensive theory counsel
could suggest in argument.
Given the extremely damaging evidence against appellant, and the
fact that the statement put before the jury appellant's explanation
for the evidence and her claim of innocence, and the fact that making
the statement limited her options regardless of whether it was
introduced in the State's case-in-chief, I would hold that appellant
was not harmed by the admission of the statement.
otherwise indicated, all future references to Articles refer to Code
of Criminal Procedure.
also contends that the trial court failed to file findings of fact and
conclusions of law on the issue of the voluntariness of her
confession, which is required by Article 38.22. Appellant failed,
however, to explain how the factual record proves that her confession
to the police was made involuntarily, failed to present any legal
authority to support the argument that her confession was involuntary,
and failed to apply the law to the facts to support the conclusion
that her confession was involuntary. Therefore, we conclude that the
issue of the voluntariness of appellant's confession was inadequately
briefed and presents nothing for review. Tex.R.App. P. 38.1. It
does not, therefore, justify an order from this Court remanding this
cause to the trial court to conduct a hearing into the voluntariness
of appellant's confession and ordering the trial court to enter
findings of fact and conclusions of law thereto.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
written statement reads as follows:Early Tuesday morning about 1:30
a.m., drugs were delivered to me at my residence by “Kilo” and “J.C.”,
two guys I met in South Dallas selling drugs, about a month or so ago.
Both guys stayed at my residence & partied with me. After my money
& the drugs ran out, they asked if I could get some more money. I
told them no. They asked me if I knew any of my neighbors I could
borrow money from & I said no, not at that hour & that I had to go to
work. At that time they began to be verbally abusive & threatening
to harm me if I didn't. I called my neighbor “Dorothy Booth”. I'm
not sure of the time & got no answer. I waited a while & called
back, she answered. “Kilo” told me to hang up & I did. He told me
to call back & ask her to borrow some sugar or milk instead of money
over the phone, because they were going to rob her & take the car. I
called back & asked to borrow sugar, she said ok. Kilo & J.C.
followed me to her house, when she opened the door & saw me, to let me
in they both pushed the door open & knocked her down. I was shoved
back outside to her car. The driver side was unlocked & I was told
to stay there & lay down in the front seat. Several minutes later
they both came out with her car keys, purse, & CD player. Both guys
went back into my house & came out with a jam box, cordless phone &
caller ID. They told me to drive to Mi Amore motel on second avenue to
make a pick up. I was told to park on the next street over & wait
for them. After about 3-5 minutes or so I drove off with all the
belongings they took & went to Fitzhugh to the dope house. No one
answered the door so I went to Perry street dope house. I took
everything out of the car & went inside to get dope. They didn't
have any so “Smiley” said he would go around the corner & get me some.
I gave him the keys & another girl rode with him. They came back &
the police stopped them in front of the dope house on Perry street.
I went to the back of the house & waited a few minutes & left out the
back door to get drugs elsewhere. A few hours later I returned to
Perry street dope house & “Smiley” was upset that the cops stopped
him. He gave me the car keys back. He asked me if the car was
stolen & I said no. He wanted to rent it out for dope so I did &
left. After the dope ran out I searched the purse & found a diamond
ring & credit cards. I took the ring to the pawn shop & sold it.
Later I used the credit card at the grocery store & gas station to
purchase cigarettes by the carton for resale at the “boot leg” for
cash. I went to a friend's house to smoke dope. He sold the caller
ID and cordless phone for dope money. The jambox was sold to an
individual at the Mexican dude on Fitzhugh & East Grand. I got a
ride with a male & female. We went to several gas stations & she
went inside to use the credit cards once or twice.
Supreme Court recently declined to modify or jettison the Miranda
rule, Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147
L.Ed.2d 405 (2000). In Dickerson, Chief Justice Rehnquist, speaking
for the Court, rejected the very rule that the State requests us to
adopt in this case: that a defendant's custodial statement should be
admissible if, under the totality of circumstances, the court finds
that the statement was given voluntarily and without mental or
physical coercion, regardless of whether the defendant has been given
Miranda warnings and invoked his right to consult an attorney. Id. at
course, if the arrestee reinitiates the conversation, the Edwards rule
in its closing argument, the State again used appellant's statement as
further proof of her guilt as a party or co-conspirator:[STATE]: She
waited outside the victim's house in a car for several minutes.
Here's a person whose life has been threatened and these friendly
killers leave her outside in the car unguarded, doesn't go to the
police, doesn't run for help, doesn't call anybody.Does that make
sense to you?That's the first wait.What about the second wait?She
waited outside while the alleged killers went in her house. Just
wait. Let's wait for the killer. See?Does that make any sense to
you? You wait outside, doesn't run away, your life is supposed to be
threatened?No, it doesn't.Three, the third wait. She waited in the
car with the keys, we know, about a block off of Second Avenue for
three to five minutes.Folks, common sense that there was-if there was
a real Kilo and J.C., you hang around knowing that these are the type
of people that can kill and you just wait on them?No, that's not true.
we reverse the judgment on the basis of Edwards error, the other
issues appellant raises are moot.
v. Arizona, 437 U.S. 385, 397-398, 98 S.Ct. 2408, 57 L.Ed.2d 290
(1978); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570
COCHRAN, J., delivered the opinion of the Court in which MEYERS,
PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.
KELLER, P.J., filed a dissenting opinion in which HERVEY, J.,
joined.KEASLER, J., not participating.