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Connie Ray EVANS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Drugs
Number of victims: 1
Date of murder: 1981
Date of birth: 1960
Victim profile: Arun Pahwa, 28 (convenience store clerk)
Method of murder: Shooting (.38 caliber revolver)
Location: Jackson, Mississippi, USA
Status: Executed by asphyxiation-gas in Missisippi on July 8, 1987
 
 
 
 
 
 

Connie Ray Evans was strapped into the chair in the gas chamber and asked if he had any last words.  He replied that he did, but only for Warden Cabana.  Cabana stepped back into the chamber and Evans said to him: "From one Christian to another, I love you.  You can bet I'm going to tell the Man how good you are."

The epitome of the nuptial execution comes with the killing of Connie Ray Evans, condemned in 1981 for the murder of a convenience store worker during a robbery.  "I'm killing a friend of mine tonight," Cabana reflects as Evans is strapped into the gas chamber. 

The third and last execution he supervised was the toughest, he recalled, because he had "violated my cardinal rule never to get close to your clients," allowing himself to befriend the condemned inmate, Connie Ray Evans.

Cabana said Evans, a convicted killer, had come into prison an embittered 19-year-old drug addict and had changed greatly in the eight years before Cabana was required to execute Evans in 1987.

Cabana said some of his perspective on crime and punishment was colored by his childhood. His birth mother had been a prostitute, drug addict and "convicted felon who did time," he said, and several sib Leg 3 ends here lings had suffered greatly as a result.

"I could have turned out very differently," he said, reflecting on the "hundreds of times" he looked into prison cells and realized that, without some luck, the tables could have been turned.

"There's a very, very thin line between the keeper and the kept."

 
 

Mississippi execution

The New York Times

July 9, 1987

Connie Ray Evans, 27, was pronounced dead at 12:22 A.M., 17 minutes after officials at the State Prison at Parchman began the release of gas into the chamber, said Donald Cabana, the warden of the prison.

Mr. Cabana said that in the last hour Mr. Evans's frame of mind was ''as good as could be expected under the circumstances.''

''He again expressed regret for the crime and for the obvious pain and suffering it caused,'' Mr. Cabana said.

Mr. Evans had a final statement, but it would not be made public, he said. ''He requested it be kept confidential, and I will honor that request.''

In Jackson, Miss., about 50 opponents of capital punishment held a candlelight vigil outside the Governor's Mansion to protest Mr. Evans's execution.

After the Supreme Court rulings, Gov. Bill Allain refused to block the execution, saying Mr. Evans had admitted the crime and his rights had been protected.

Mr. Evans was sentenced to die for the 1981 shooting death of Arun Pahwa, 28, whom he admitted shooting in the head in a robbery that netted him and an accomplice $140. The victim's parents owned the store, and another one at which Mr. Evans had worked.

The accomplice in the robbery testified against Mr. Evans, pleaded guilty to manslaughter and armed robbery and was sentenced to 20-year and 25-year prison terms. A judge suspended all but five years of the two terms.

 
 

809 F.2d 239

Connie Ray Evans, Petitioner-Appellant, Cross-Appellee,
v.
Morris Thigpen, Commissioner, Mississippi Department of Corrections,
Respondent-Appellee, Cross-Appellant.

No. 86-4331

Federal Circuits, 5th Cir.

March 12, 1987

Appeals from the United States District Court For the Southern District of Mississippi.

Before GEE, RANDALL and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Connie Ray Evans appeals the district court's denial of his habeas petition contesting the sentence of death imposed in his conviction for murder. We find no error and affirm.

I.

Evans pleaded guilty to capital murder and his case proceeded directly to the penalty phase of Mississippi's bifurcated scheme. The jury recommended the death penalty, finding that the state had proved four statutory aggravating circumstances that outweighed any mitigating circumstances. The sentence was upheld on direct appeal, and the Mississippi Supreme Court denied the petitioner's application for error coram nobis relief. Evans' application for federal habeas relief was denied by the district court. Evans v. Thigpen, 631 F.Supp. 274 (S.D.Miss.1986). Evans now appeals.

The murder in this case occurred during an armed robbery of a neighborhood grocery store in Jackson, Mississippi. Evans acted as a lookout while his accomplice, Alfonso Artis, entered the grocery store with a .38 caliber revolver. The accomplice made the store clerk, Arun Pahwa, get on his knees behind the counter. Evans then entered the store, received the handgun from Artis and stood over Pahwa with the cocked revolver pointed at Pahwa's head.

When Artis could not get the cash register drawer open, he ordered Pahwa to get up and and open the cash register; Pahwa was then forced back into a kneeling position. Evans and Artis collected approximately $140 from the cash register and Pahwa's pockets. As Artis turned to leave, Evans shot the kneeling Pahwa in the back of his head from a distance of approximately three or four feet. Evans and Artis fled the scene of the crime.

Artis was apprehended by police the next day and Evans turned himself in to the police seventeen days later. Petitioner confessed that he shot the victim because "the man knew me and I did not want him to identify me."1

II.

A. Aggravating Factors

The jury found that the state had proved four statutory aggravating circumstances: (1) that the capital offense was "especially heinous, atrocious and cruel"; (2) that the capital offense was committed by a person "under sentence of imprisonment"; (3) that the capital offense was committed "for the purpose of avoiding or preventing a lawful arrest"; and (4) that the capital offense was committed while the defendant was engaged in committing a robbery. Evans argues that all four findings should be overturned.

The district court's thorough opinion persuasively rejects Evans' arguments to overturn the first three aggravating circumstances listed above. We also reject these arguments for the reasons stated by the district court. See Evans, 631 F.Supp. at 283-84.

The fourth aggravating circumstance was perhaps the most clearly established: that the murder was committed during the course of a robbery. Evans now argues that this aggravating circumstance fails to adequately narrow the class of persons eligible for the death penalty because it simply duplicates an element of the crime. See Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). We rejected this argument in Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.1986).

Although a single aggravating circumstance is sufficient to support a death sentence, Watson v. Blackburn, 756 F.2d 1055, 1058 (5th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2259, 93 L.Ed.2d 703 (1986), we conclude that all four aggravating circumstances were established in this case. This claim is therefore without merit.

B. Evidentiary Rulings

Evans next alleges that the trial court improperly allowed the following evidence to be admitted during the sentencing stage of the trial: (1) nine color slides of the victim of the homicide; (2) the spent bullet and certain personal belongings of the victim; (3) testimony of a pathologist and investigating officer with respect to the cause of death and the scene of the crime; and (4) testimony of the victim's brother. Evans argues that this evidence was not relevant in the sentencing phase of the trial because of his previous guilty plea. He also argues that the introduction of this evidence created "an atmosphere in which it was impossible" to get a fair trial.

"In reviewing state evidentiary rulings, our role is limited to determining whether a trial judge's error is so extreme that it constituted denial of fundamental fairness." Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir.1985), cert. dismissed, --- U.S. ----, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). We do not believe that the admission of these four categories of evidence denied Evans fundamental fairness.

All of these items were relevant to the aggravating circumstances the state was required to prove in its capital case. Items one through three established the crime scene and other particulars of the crime; they were pertinent to the state's contention that the execution-style murder was heinous and committed during the course of a robbery. We agree with the district court that admission of this evidence was probably not in error "at all, much less error which would justify habeas relief under the standard set forth in Mattheson, supra." Evans, 631 F.Supp at 288.

The victim's brother, Dr. Balder Raj Pahwa, identified the victim's body from the photographs. His testimony, although emotional, was brief and did not pervade the sentencing hearing. We are persuaded that his testimony did not deny Evans a fundamentally fair trial.

Evans also argues that the trial court erred in refusing to let Reverend Owens testify as an expert on the "Christian tenets of mercy." We agree with the district court that Reverend Owens' testimony would have consisted of an "abstract review of Biblical teachings" and was not related to the petitioner or the crime he committed in this case. Evans, 631 F.Supp. at 286. Exclusion of this testimony therefore did not deny Evans fundamental fairness.

C. Prosecutor's Closing Remarks

Evans complains of five remarks made by the prosecutor during closing argument: (1) references to the consequences of a sentence of "life imprisonment";2 (2) negative comments regarding the possible rehabilitation of the defendant; (3) a characterization of the crime as the "most horrible crime I can imagine"; (4) the reading to the jury portions of a note in evidence written by petitioner to his accomplice; and (5) remarks that petitioner was not entitled to "mercy." Only the first of these five comments merits discussion; for reasons stated in the district court's careful opinion, none of the remaining four comments warrant relief. See Evans, 631 F.Supp. at 290-92.

Evans argues that he was deprived of a fundamentally fair sentencing hearing when the prosecutor stated to the jury in closing argument that "[y]ou can send him to life imprisonment, but that's just your sentence." Petitioner relies on Caldwell v. Mississippi which held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231, 239 (1985).

Caldwell, however, is inapplicable to the instant case. In Caldwell, the prosecutor told the jury that "your decision is not the final decision.... Your job is reviewable." Caldwell, 472 U.S. at 325, 105 S.Ct. at 2637, 86 L.Ed.2d at 237. When read in context, the instant case is quite different: the prosecutor's statement referred to the petitioner's past proclivity to escape from prison, not the possibility of parole or reversal on appeal. The prosecutor argued that based on Evans' past record of escape, "nothing is going to stop him from crime other than the [death] sentence we are requesting." The reference to the fact that Evans might not serve a life sentence because of his history of escape presents no constitutional error. See Brooks v. Kemp, 762 F.2d 1383, 1411 n. 46 (11th Cir.1985) (not improper to raise the possibility of prison escape and the potential for future victims), vacated on other grounds, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986).

D. Jury Instruction on "Mercy"

Petitioner argues that the trial court erred in refusing to allow an instruction on the issue of mercy.3 The proffered instruction was unnecessary, however, because of the two related instructions given by the trial court. The court told the jury that:

Even if you find the existence of one, two, or three or more aggravating circumstances, you still can conclude that the circumstances are insufficient to warrant death, and you may impose a sentence of life imprisonment.

The trial judge also instructed the jury that:

You are not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court....

These two instructions satisfied the court's requirement to clearly inform the jury of its option to return a verdict of life imprisonment. Chenault v. Stynchombe, 581 F.2d 444, 448 (5th Cir.1978).

E. Witherspoon v. Illinois

The petitioner contends that the exclusion for cause of prospective juror Mary Rouchon violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). After stating that she was positive that she could not return a verdict recommending the death penalty, Ms. Rouchon vacillated in expressing her scruples about the death penalty. Despite Ms. Rouchon's vacillations, we believe her exclusion from the capital sentencing jury was fairly supported by the record. Wainwright v. Witt, 469 U.S. 412, 434, 105 S.Ct. 844, 857, 83 L.Ed.2d 841, 858 (1985). Ms. Rouchon expressed "very strong feelings" about the death penalty and at one point told the trial judge that she could not follow the law or consider the death penalty where a killing in the course of a robbery was involved. In light of the presumption of correctness due the trial judge's findings under 28 U.S.C. Sec . 2254(d), we find no error on this point.

F. Discriminatory Application of Death Penalty

Petitioner asserts that Mississippi is more likely to impose the death penalty if the defendant is black or if the victim is white. Relying on McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc), cert. granted, --- U.S. ----, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986), he contends that this disparate treatment of blacks who are accused of murdering caucasians deprives him of equal protection of the law.

At the outset we note that the district court procedurally barred this claim because Evans did not address the issue in either the Mississippi trial court or the state Supreme Court and he failed to show "cause and prejudice" to explain the default. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Assuming, without deciding, that the Supreme Court's intervening decision to grant certiorari in McCleskey would satisfy the "cause and prejudice" standard of Engle v. Isaac, we find that Evans' claim cannot prevail on the merits. The statistical evidence upon which he relies remains inadequate under current Fifth Circuit law to show that he has been the victim of discrimination. Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.1986); Prejean v. Maggio, 765 F.2d 482, 486 (5th Cir.1985). The fact that the Supreme Court has granted certiorari in McCleskey does not alter the authority of our prior decisions. Wicker, 798 F.2d at 157-58. See also Michael Wayne Evans v. McCotter, 805 F.2d 1210, 1212 (5th Cir.1986).

G. Cross Appeal

Our disposition of petitioner's appeal makes it unnecessary for us to consider the state's cross-appeal.

CONCLUSION

We affirm the district court's denial of habeas relief to the petitioner. The stay of execution entered by the district court pending appeal is vacated.

*****

1 Evans recanted this portion of his confession at the sentencing hearing. Evans testified that he did not intend to shoot the victim, but fired because the victim made a slight movement of his knees when a telephone rang. Nevertheless, the jury found that Evans shot the victim for the purpose of avoiding arrest

2 With respect to the consequences of a sentence of life imprisonment, the prosecutor stated:

You can send him to life imprisonment, but that's ... just your sentence. And you can do something else that they said; you can decide that a sentence of life imprisonment is the way to stop crime. Did you hear the preposterous statement that the defense attorney made. The way to stop crime is to catch people and put them in prison. There's a man that was put in prison, sentenced to prison on three separate crimes, and within two years and a couple of months he killed a man. And he says that's the way to stop crime. Sentence them to prison and we'll stop crime. Hogwash. Nothing is going to stop him from crime other than the sentence we are requesting. He's already shown you that. That's fact.... [R. 446-447]

* * *

What's the first thing he did when he ... found out what he was fixing to face? Well, tried and true jurors, when he was fixing to go to the penitentiary, escape. Think about that and he tells you the death penalty isn't a deterrent. [R. 449]

3 The trial court refused to give instruction D-8 which provided:

The Court instructs the jury that even if you find that aggravating circumstances outweigh the mitigating circumstances, you may still recommend mercy and sentence the defendant to life imprisonment.

 
 

821 F.2d 1065

Connie Ray Evans, Petitioner-Appellant,
v.
Donald A. Cabana, Commissioner, Mississippi Department of Corrections,
Respondent-Appellee.

No. 87-4489

Federal Circuits, 5th Cir.

July 6, 1987

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

Before GEE, RANDALL and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Connie Ray Evans seeks a stay of execution and a certificate of probable cause to appeal the district court's denial of his second petition for federal habeas corpus. Evans' execution is set for July 8, 1987. Evans raised two issues in his latest habeas petition: (1) that black jurors were impermissibly excluded from his petit jury in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); and (2) that his trial counsel was constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree with the district court that Evans has not made a substantial showing of the denial of a federal right; accordingly, we deny a stay of execution and deny the application for a certificate of probable cause.

I.

The murder in this case occurred during an armed robbery of a neighborhood grocery store in Jackson, Mississippi. The evidence at trial revealed that Evans forced the grocery store clerk onto his knees and then shot him in the back of the head at close range.

Evans pleaded guilty to capital murder and his case proceeded directly to trial on the penalty phase as required by Mississippi's bifurcated scheme. The jury recommended the death penalty, finding that the State had proved four statutory aggravating circumstances that outweighed any mitigating circumstances.

Evans' death sentence was upheld on direct appeal, Evans v. State, 422 So.2d 737 (Miss.1982), and the Mississippi Supreme Court denied error coram nobis relief. Evans v. State, 441 So.2d 520 (Miss.1983). Evans' first petition for federal habeas corpus relief was denied by the district court, Evans v. Thigpen, 631 F.Supp. 274 (S.D.Miss.1986), and we affirmed. Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987), cert. denied, --- U.S. ----, 107 S.Ct. 3278, 97 L.Ed.2d 782 (1987).

Evans contends that he intended to join the instant two claims with his first federal habeas petition, but was unable to do so before our decision was rendered in Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987). Because of counsel's good faith efforts, the district court held that the failure to include these two issues in Evans' first petition for federal habeas corpus was not an abuse of the writ. The district court proceeded to find, however, that both issues were procedurally barred. We agree with the district court that Evans' Swain claim is procedurally barred. We are also persuaded that no substantial Swain claim is presented on the merits. We express no opinion regarding the district court's findings on procedural default on the ineffective assistance of counsel claim; we agree with the district court that Evans does not present a substantial claim of ineffective assistance of counsel on the merits.

II. Swain v. Alabama

Evans contends that the district attorney who prosecuted his capital case, Ed Peters, systematically excludes blacks from juries in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain, a black man was tried and convicted of rape by an all white jury in Talladega County, Alabama. Although there were eight blacks on the venire, none served on the petit jury because two were exempt and six were excused by the prosecutor. Id. at 205, 85 S.Ct. at 827. At the time of the trial in Swain, no black had served on a petit jury in Talladega County for approximately thirteen years. Id. In Part II of the opinion, Swain held that the prosecutor's use of peremptory challenges to exclude blacks in the defendant's case did not violate the Equal Protection Clause of the fourteenth amendment. Id. at 222-23, 85 S.Ct. at 837. The Court explained that:

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence, the motion to strike the trial jury was properly denied in this case.

Id. at 222, 85 S.Ct. at 837.

In Part III of its opinion, Swain held that the defendant failed to prove that peremptory challenges were systematically used to prevent all blacks from serving on petit juries in Talladega County. The Court explained that:

[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.

Id. at 223-24, 85 S.Ct. at 837-38. The Court found that the evidence did not support "an inference that the prosecutor was bent on striking Negroes, regardless of trial-related considerations." Id. at 225-26, 85 S.Ct. at 839.

In the instant case, Evans pleaded guilty to capital murder and the sentencing phase of his trial was heard by a jury that included eight whites and four blacks. The venire consisted of thirty-four potential jurors: twenty-one whites and thirteen blacks. The district attorney exercised ten or eleven of his twelve peremptory strikes1 and excluded nine of the thirteen blacks from the venire. The district attorney therefore must have used either one or two of his peremptory challenges to exclude whites from the jury. Notably, the prosecutor had one or two peremptory challenges remaining after the jury was selected.

Evans' claim arises solely under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Evans' conviction was final before the decision was announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson is therefore inapplicable because it does not have retroactive application, Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199, 204-06 (1986), even in death penalty cases. Smith v. McCotter, 798 F.2d 129, 132 (5th Cir.1986).

In order to prove a Swain violation, Evans relies on two items of evidence. First, Evans relies on district attorney Ed Peters' deposition in which Peters admits to a "philosophy" of peremptorily challenging as many blacks as he can. Second, Evans relies on statistics from the First Judicial District of Mississippi that reveal that blacks are much more likely to be the object of a peremptory challenge than are whites. The district court fully addressed these two pieces of evidence when it analyzed the "prejudice" prong of the procedural bar issue and concluded that this evidence did not establish a Swain violation. We agree with this conclusion of the district court.

Evans' claim must fail for an additional reason. Even if Peters' deposition and the statistics were sufficient to find that a Swain violation occurred in other cases, Evans' claim must fail because he has not proven that a Swain violation occurred in his case. As a matter of law, it is insufficient to prove a Swain violation based solely on statistics from other cases and a philosophy which, according to undisputed facts in this case, did not continue "unabated" in the petitioner's trial.

In order to prevail in the instant case, Evans must prove that his prosecutor had

a systematic and intentional practice of excluding blacks from traverse juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in petitioner's trial.

Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir.1983).

It is undisputed that four blacks were selected to be jurors at Evans' sentencing trial and participated in the unanimous death penalty recommendation. Considering that the venire consisted of twenty-one whites and thirteen blacks, it is significant that blacks were therefore represented on the petit jury in virtually the same proportion as they were represented on the venire.2 It is also undisputed that Peters had at least one remaining peremptory challenge at the conclusion of the jury selection process. If Peters had intended to exclude as many blacks from the jury as possible, it would have made little sense to leave one peremptory challenge unused.

Thus, even if we accept Evans' argument that the Peters deposition and the statistics he proffered establish a Swain violation in past cases, he has not presented a substantial question of a Swain violation in his own case. The manner in which the prosecutor exercised his peremptory challenges in Evans' case and the composition of the jury that sentenced Evans negates the possibility that a Swain violation occurred in his case.

III. Ineffective Assistance of Counsel

Evans argues that he was denied effective assistance of counsel because (1) trial counsel erred in advising Evans to plead guilty because counsel erroneously assumed that by pleading guilty Evans could exclude particularly damning evidence from the sentencing phase of the trial; (2) counsel failed to anticipate the Supreme Court's ruling in Booth v. Maryland, --- U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and failed to take appropriate action to exclude the testimony of the victim's brother; (3) counsel failed to present available evidence in mitigation; and (4) counsel, by failing to object, allowed slides of the victim at the crime scene to remain on the projection screen for over fifteen minutes.

For the reasons that follow we reject these arguments on the merits.

A.

Evans first argues that trial counsel's performance was deficient because counsel advised him to enter a guilty plea on the erroneous assumption that once guilt was admitted, much of the damning evidence about the crime itself could be excluded in the sentencing phase. Trial counsel confirms in an affidavit that he thought he would be successful in having some of the evidence related to the crime excluded in the sentencing phase of the trial if Evans pleaded guilty.

We are persuaded that it was not unreasonable for counsel to conclude that he might persuade the trial judge to limit the evidence directly bearing on commission of the robbery and murder if Evans entered a guilty plea. The trial court enjoys broad discretion in determining the admissibility of evidence and the amount of evidence the State is permitted to introduce on a point at issue. This is particularly true when the State's evidence becomes arguably cumulative. Counsel could have reasonably concluded that his chances of excluding arguably cumulative evidence of facts surrounding the robbery and murder would be improved if Evans pleaded guilty.

In assessing counsel's performance from counsel's perspective at the time his decisions were made, as Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), directs us to do, it is important to note that the evidence of Evans' guilt was overwhelming. Evans made a detailed confession of his role in the crime and his accessory, Artis, entered a guilty plea and testified against Evans. Trial counsel was entitled to conclude that Evans had virtually no chance of obtaining a not guilty verdict and his best trial tactic was to plead guilty and present Evans to the jury as remorseful and penitent. As indicated above, a secondary benefit flowing to Evans from this tactic was an improved argument that at least cumulative evidence relating to the damning facts of the crime itself should be excluded.

We review counsel's strategy under the standard established in Strickland. The Court established two basic requirements for finding ineffective assistance of counsel.

'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense.'

Id. 466 U.S. at 687, 104 S.Ct. at 2064.

The Court further explained that:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." .... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. at 689, 104 S.Ct. at 2065. (citations omitted).

Measured against the Strickland standard, we agree with the district court that counsel's strategic decision to advise his client to plead guilty was not deficient.

B.

Evans next argues that trial counsel was ineffective because he failed to foresee the law as developed in Booth v. Maryland, --- U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Booth was announced on June 15, 1987, and Evans' trial and sentencing occurred in 1981. At Evans' trial, counsel obviously recognized the prejudicial effect of the testimony of the victim's brother and objected to the testimony. The trial court overruled counsel's objections. Evans does not suggest what else his trial counsel could or should have done to exclude this evidence. This contention has no merit.

C.

We agree with the district court that counsel's conduct was not deficient in failing to present additional mitigating evidence and in failing to object to the display of the crime scene for fifteen minutes. We adopt the opinion of the district court on these issues and append to this opinion the relevant portion of the district court opinion.

CONCLUSION

In conclusion, because Evans has not made a substantial showing of the denial of a federal right, we DENY a certificate of probable cause and also DENY a stay of execution. See Barefoot v. Estelle, 463 U.S. 880, 883, 103 S.Ct. 3383, 3389, 77 L.Ed.2d 1090 (1983). The mandate shall issue forthwith.

*****

APPENDIX

Excerpts from opinion of United States District Court, Southern District of Mississippi, dated June 26, 1987, in Civil Action No. J-87-0081(B).

IV.

* * *

  (2) Mitigating Evidence

Petitioner contends that trial counsel failed to present a reasonably credible case in mitigation at the sentencing phase. As to the argument that counsel failed to call Evans' pastor, this Court held and the Fifth Circuit agreed that the trial court properly refused to allow another minister to testify merely on the Christian tenets of mercy. See Evans, 809 F.2d at 242; Evans, 631 F.Supp. at 285-86. For mitigating evidence, the Court looks to an individualized determination pertaining to the particular characteristics and background of the defendant and the particular circumstances of the crime. Evans, 631 F.Supp. at 286. The Petitioner has not indicated what the pastor's testimony would have been if introduced, and it is not shown how this would affect the outcome. Although the trial court could have allowed the testimony if it concerned Evans' individual background and character, see Evans, 631 F.Supp. at 286, there is no evidence that the pastor would have presented sufficient testimony to affect the outcome so that counsel's failure to put on this mitigating evidence was unreasonable or prejudiced the Petitioner.

Petitioner argues that trial counsel did not develop relevant mitigating evidence about Petitioner's character and history. He claims that counsel was ineffective in failing to follow up on a psychiatrist's report. A psychiatrist was not appointed to serve as an expert witness for the defense, but the Petitioner was taken to the Mississippi State Hospital at Whitfield for two examinations. The first report was cursory and uninformative. Counsel was informed that the second report, which was not completed at the time of the plea hearing, revealed that Petitioner was sane to stand trial, but counsel did not check the report to discover Petitioner had a low intelligence quotient (IQ). There is no indication of what evidence of mental impairment a psychologist would have presented. Without any detailed facts, affidavits or other substantial proof, present habeas counsel merely states in the petition:

In fact, the evidence that counsel failed to develop and present would have shown that Connie Ray Evans is a man of low intelligence, with psychological problems; that he was suffering from depression at the time of the murder; that he presented a good prospect for rehabilitation and very little evidence of future dangerousness. Because of counsel's failings, virtually none of this information was available to the sentencing jury.

The Court notes that the Petitioner was questioned thoroughly by the judge and attorneys during the guilty plea and during the trial as to his thought processes leading up to the crime. There was no indication of insanity, incompetence or substantial mental impairment at that time. Petitioner has not overcome the presumption that trial counsel made a tactical decision that there was no evidence of psychological problems or mental impairment worth presenting. The Court finds that this did not fall below a reasonable level for effective assistance of trial counsel.

Petitioner also claims that trial counsel only met with family members and potential character witnesses once and failed to call more witnesses in mitigation. There is no proffer or factual basis presented by Petitioner as to what other mitigating evidence was available. Petitioner does not now present evidence of witnesses who would have testified or the subject matter of any other witnesses' testimony, so this Court cannot conclude that counsel was not reasonable in failing to call more witnesses or present more mitigation evidence. C.f. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) (evidentiary hearing ordered where petitioner did proffer a number of exhibits in state and federal habeas proceedings as evidence of mitigating circumstances sentencing attorney could have presented), cert. denied Dugger v. Porter, --- U.S. ----, 107 S.Ct. 3196, 96 L.Ed.2d 682 (1987). Counsel has no absolute duty to present character evidence, Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), but in those cases where no mitigating evidence was presented, courts have found ineffective assistance of counsel. See Tyler v. Kemp, 755 F.2d 741, 743-46 (11th Cir.1985); Pickens v. Lockhart, 714 F.2d 1455, 1465 (8th Cir.1983). This Court declines to establish a checklist of required mitigating evidence. In the present case counsel did put on mitigating evidence that Petitioner cared for his mother, he worked and gave his mother most of his money to support her and his two younger sisters in a family of seven children, he was a good child, he got into trouble only by "running with bad boys," he had no previous violent crimes, he was remorseful and he had turned himself in to the police. This evidence was presented by Petitioner and Petitioner's mother, and counsel had tried to introduce the testimony of a minister. It is not unreasonable that trial counsel made a tactical decision not to bring in other potential character witnesses since counsel was aware they could also testify to prejudicial matters, such as Petitioner's prior juvenile record, which counsel was attempting to avoid. The decision not to seek more character or psychological evidence than was already admitted was within the range of professionally reasonable judgments. See Strickland, 466 U.S. at 699, 104 S.Ct. at 2070. Given the jury's finding of four aggravating factors, there is no reasonable probability that this suggested mitigating evidence would have changed the conclusion that the aggravating factors outweighed the mitigating circumstances. Petitioner has not established that counsel was ineffective.

  (3) Slides

Petitioner asserts that trial counsel was ineffective for failing to object to the display of certain slides for 15 minutes during the cross-examination of Petitioner. The Court has previously ruled that these slides were properly admissible as evidence, see Evans, 809 F.2d at 242; Evans, 631 F.Supp. at 288, and the Petitioner now only addresses his argument to the length of time they were projected onto a screen during the cross-examination. The Court finds that the prosecutor did ask Petitioner questions regarding the position of the victim in the slide exhibits. [R. 397-405]. The trial record reflects that counsel had previously interjected several objections concerning the slides when they were first admitted, including that they were prejudicial; therefore, this Court cannot say that counsel's performance fell below a reasonable standard for failing to object to the amount of time for which the slides were displayed.

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1 The district court found that there was conflicting evidence in the record as to whether the district attorney used one or two of his peremptory challenges to strike whites from the venire

2 Blacks constituted 38% of the venire and 33% of the petit jury

 
 


Connie Ray Evans

 

 

 
 
 
 
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