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 strikes
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.
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.
*****
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
Blacks constituted 38% of
the venire and 33% of the petit
jury
Connie Ray Evans
