and Jimmy L. Glass was convicted of shooting to
death Newton and Erline Brown while burglarizing their Dixie Inn
home on Christmas Day, 1982.
Glass and Jimmy
Wingo had escaped from the Webster Parish Jail the day before.
Glass claimed that Wingo forced him at gunpoint to kill the Browns.
was executed on June 12, 1987.
Jimmy Wingo was
executed four days later, on June 16, 1987. Wingo's story was that
he was not even present when Glass killed the Browns.
"I am an innocent
man. You are murdering me this day. I do still love you all in
Christ. God bless you all."
Louisiana executes 2d man in
slaying of couple
The New York Times
Jimmy Wingo, a former Boy Scout convicted of killing a married
couple during a robbery was executed today in Lousiana's electric
chair. He was the fourth man to be executed here in in nine days.
A handful of capital punishment proponents were
outside the state pentitentiary when Mr. Wingo was executed. One, a
16-year-old who said his teen-age sister had been murdered in 1984,
carried a sign reading: ''Tell them about Jesus, then put them in
Earlier in the day Mr. Wingo met with his mother
at the state penitentiary in Angola before the United States Supreme
Court cleared the way for his execution, voting 7 to 2 against
hearing his appeal.
Hilton Butler, warden of the penitentiary, said
Mr. Wingo had been holding up well even after the Court's ruling.
''He's still as calm as he can be,'' Mr. Butler
said after a brief visit with him. ''He says he still has hopes the
Governor may do something, but he said he's ready if he doesn't.
He's in real good spirits.'' Christmas Eve Killings
Jimmy Glass, who was convicted with Mr. Wingo in
the murder of the couple, was executed for the crime last Friday.
The men had been found guilty of killing Newt
Brown, 55 years old, and Erlene Brown, 51, in their house in the
rural town of Dixie Inn on Christmas Eve in 1982. The men committed
the slayings after escaping from the Webster Parish Jail.
Mr. Wingo, 35 years old, has said from the time
he was arrested that he stayed outside the Browns' house while Mr.
Glass went in.
Mr. Glass, however, had contended that Mr. Wingo
held a shotgun to his head and made him kill the Browns. Videotape
Used in Appeal
The basis of Mr. Wingo's appeal to the Supreme
Court was a videotape of a prosecution witness, Gwen Hill, who was
Mr. Wingo's companion and the mother of one of his children. In the
videotape, she said her testimony in his trial had been influenced
by a sheriff's deputy who threatened her with a 10-year prison term.
On Friday, the state Pardon Board viewed the
videotape but refused to recommend that Mr. Wingo's sentence be
commuted to life.
Gov. Edwin Edwards has said he would not
intervene in the cases of Louisiana's 40 death row inmates unless
evidence can be shown of a condemned prisoner's innocence.
783 F.2d 1046
C. Wingo, Petitioner-appellant,
Frank Blackburn, Warden, Louisiana
United States Court of Appeals,
Feb. 24, 1986.
Rehearing and Rehearing En Banc
Denied April 4, 1986
Appeal from the United States
District Court for the Western District of
Before GEE, REAVLEY and HILL,
REAVLEY, Circuit Judge:
Wingo has been
convicted and sentenced to death in the
courts of Louisiana for the murders of
Newton and Erline Brown on Christmas Day of
1982. See State v. Wingo,
457 So.2d 1159 (La.1984), cert. denied, ---
U.S. ----, 105 S.Ct. 2049, 85 L.Ed.2d 322,
reh'g denied --- U.S. ----, 105 S.Ct. 2691,
86 L.Ed.2d 708 (1985). The federal district
court denied Wingo's
petition for habeas corpus. We granted
certificate of probable cause, and after
consideration of the briefs and oral
argument of counsel, and study of the state
record, we affirm the denial of habeas
Christmas Eve about 8:00 p.m.
Wingo escaped from
the jail in Minden, Louisiana, where he had
been confined under burglary charges.
Accompanied by another escapee,
Jimmy Glass, he
avoided the roads and walked several miles
along railroad tracks to the Brown home.
day the bodies of Mr. and Mrs. Brown were
found in their bed, gagged and bound at the
hands and feet. Both had been killed by
gunshots to the back of their heads. Their
house had been ransacked. Entry had been
made through a broken glass patio door.
daybreak on Christmas,
Wingo arrived at the home of his
sister, Betty Whittington, in Vivian,
Louisiana. He had cash, clothing, weapons,
and ammunition taken from the Brown home.
The Brown's Lincoln automobile was later
found, stalled in high water on the road, a
quarter of a mile from the Whittington home.
Accompanied by Glass and Gwen Hill,
he then drove a Datsun pickup into East
Texas. Wingo and
Hill were captured in woods near Atlanta,
Texas, on January 5, 1983. Glass was
apprehended in California.
Wingo and Glass were indicted on two
counts of first degree murder. Glass was
tried first, convicted on both counts, and
sentenced to death. Wingo
was also convicted and sentenced to death
for both murders.
counsel for Wingo
attack the constitutionality of the
conviction and death sentence on 10 grounds.
We will address each ground.
v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), the Supreme Court held
that the Eighth Amendment barred the
imposition of the death penalty "in the
absence of proof that [the defendant] killed
or attempted to kill, and regardless of
whether [he] intended or contemplated that
life would be taken...." Id. at 801, 102
S.Ct. at 3378-79.
Wingo argues that,
as in Enmund's case, in the absence of proof
that he participated or intended the murders
of Mr. and Mrs. Brown, it cannot be said
that the death penalty is proportional to
his conduct. We are cited to our opinion in
Jones v. Thigpen, 741 F.2d 805 (5th
Cir.1984), where we granted writ because of
the absence of proof of the culpability of
Jones that was required by the Court in
Enmund and Jones were convicted of felony
murder crimes not requiring proof that the
defendant shared any culpability for the
homicide except that he participated in the
felony underway when a confederate did the
however, was convicted of first degree
murder under the Louisiana law which
requires proof of specific intent to kill or
inflict great bodily harm. The jury was so
instructed and found that
Wingo did have that specific intent.
The Supreme Court of Louisiana upheld the
conviction at that point and wrote:
had ample circumstantial evidence from which
to reasonably conclude that defendant was
with Glass in the bedroom where the murder
occurred. He escaped with Glass shortly
before from a nearby jail. Like Glass, he
had a pressing motive to steal money (both
were penniless), clothes (both had only jail
outfits), transportation (both were seeking
to flee the area), and weapons (both vowed
not to be "taken alive").
Glass appeared together at his relatives'
home shortly after the crime with clothes,
guns, and money which were identical or very
similar to items stolen during the break-in
at the Browns' home. He and Glass made
statements that they had "robbed" a house to
secure the money and guns. He and Glass took
a vehicle from his relatives without their
consent and continued their flight to Texas.
defendant found that he was being hunted in
connection with the murders, he fled into
the woods, where he concealed various items
which could be identified with the Browns'
home. Upon being captured, defendant had a
pair of gloves in his possession which
matched the fabric print made by a glove on
a ransacked dresser drawer in the Browns'
home, and he made a highly incriminating
statement ("I always wear gloves when I
commit a crime") to an arresting officer.
Finally, a fiber found on pants left by
defendant at the Whittingtons' home matched
the fiber of a blanket on the Browns' bed
where the bodies were found.
Glass refused to testify and defendant
elected to exercise his constitutional right
not to testify, there was no direct evidence
(in the guilt phase) of defendant's role in
these crimes. Nevertheless, a rational juror,
viewing the overall evidence in the light
most favorable to the prosecution, could
have concluded beyond a reasonable doubt
that defendant actively participated in the
killing of the victims (whose deaths were
obviously purposefully inflicted). Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979).
evidence presented, it was certainly
reasonable for the jury to conclude that
defendant's role was that of an equal
partner in all of the crimes committed by
the two during this episode, including the
murders. The theory that Glass (who was
significantly smaller than both defendant
and Mr. Brown) broke in alone and
overpowered the Browns while defendant
waited outside, unaware that Glass would
kill the helpless victims, is simply not a
compelling hypothesis, and the jury acted
reasonably in rejecting it. See State v.
Captville, 448 So.2d 676 (La.1984); State v.
Chism, 436 So.2d 464 (La.1983); State v.
Sutton, 436 So.2d 471 (La.1983).
at 1164-65 (footnote omitted).
the state court has found the requisite
culpability to satisfy Enmund, the finding
is presumed to be correct by virtue of 28
U.S.C. Sec. 2254(d) (1982) and Sumner v.
Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d
722 (1981), Cabana v. Bullock, --- U.S.
----, ----, 106 S.Ct. 689, 698, 88 L.Ed.2d
704 (1986). We are in agreement with the
Supreme Court of Louisiana and conclude that
the finding is fairly supported by this
record. See 28 U.S.C. Sec. 2254(d)(8).
the Louisiana court wrote we add that the
jury had every reason to conclude that
Wingo was the
dominant figure in this twosome and that
nothing was done that night without his
approval and participation. He was a former
policeman, a large man. He initiated the
jailbreak because he had been denied a visit
from Gwen Hill (the mother of his child)
when his sister's husband, Frank Whittington,
failed to bring Hill from Vivian to Minden
on the previous day. Jimmy
Glass was a small man, only 20 years old.
participation in the attack in the Brown
bedroom is quite clear. Newton Brown was a
large and active man, 55 years old. He had a
pistol in his closet. A very protective
Dalmatian dog was in the bedroom. Brown's
body had wounds on his elbow and abrasions
on his knuckles. To subdue him, ward off the
dog, and tie the victims was far more than
Glass could have accomplished alone.
remained the dominant figure. He drove the
Brown car to Vivian, not to Glass' desired
destination. He arrived at his sister's home
announcing that he was going to kill Frank
Whittington and had to be dissuaded by Gwen
Hill. He left saying that he would not be
taken alive, an understandable statement for
one guilty of vicious murder but hardly the
expected posture of a mere burglar. We
cannot fault the state finding that
participated in the murder of Newton and
THE COURT'S INSTRUCTION ON SPECIFIC INTENT
Wingo contends that
the jury was not adequately instructed that,
in order to find this defendant guilty, they
would have to find that he had the specific
intent to kill, irrespective of the intent
of Glass and the fact that the two of them
participated in the burglary. To support
this argument petitioner's brief quotes two
statements made by the prosecutor during the
the prosecutor referred to the law of
principals, whereby all principals are
equally guilty of the offense that they may
argues that as in Clark v. Louisiana State
Penitentiary, 694 F.2d 75 (5th Cir.1982),
reh'g denied, 697 F.2d 699 (1983), the
prosecution was relieved of its burden in
violation of Mullaney v. Wilbur, 421 U.S.
684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
record allows no possibility that the jury
in this trial could have misunderstood the
burden of the state in this respect. They
were repeatedly told that they could not
Wingo guilty of
first degree murder unless he was proved to
have intended to kill. The trial judge told
them this on many occasions, and the final
instruction at the guilt stage made no
mention of the law of principals. Neither
Enmund nor Mullaney impose a constitutional
requirement that the instruction on specific
intent be repeated at the sentencing stage.
Wingo argues that
he was denied the constitutional level of
assistance of counsel. To this end he must
show that his counsel's performance was
deficient and that the deficiency prejudiced
the defense so as to deprive him of a fair
trial. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
There is no such showing. A motion for
mistrial because of the opening remarks of
the prosecutor would have been fruitless.
Contrary to Wingo's
contention, the defense attorney did move
for full disclosure of the state's evidence
prior to trial and obtained that information.
Wingo urges that
defense counsel should have prevented
Jimmy Glass from
making a statement in the presence of the
jury. Apparently the prosecutor thought that
Glass would testify that he shot the Browns
under compulsion from
Wingo. After being called to the
witness stand by the state, Glass responded
to a few questions of identification and
then refused to answer any further, saying:
"I don't feel like I should be up here
telling my story that during my trial you
said was a lie, yet you want me up here to
tell it now so you can convict that man over
there [demonstrates toward defendant]."
difficult to see how this statement by Glass
could have harmed Wingo.
The defense attorney could have reasonably
anticipated the effect to be an adverse
reflection against the prosecutor.
contention here is that Glass' statement
tended to give credence to the prosecutor's
opening statement to the effect that
Glass to do the shooting. To argue that this
episode had any effect on the jury is
farfetched. The evidence pointed to
Wingo as the
director of this criminal venture. If
anything, a suggestion of Glass'
participation more likely favored
Wingo. We fail to
find any deficiency on the part of defense
counsel. Their conduct of this defense was
tenacious and thorough, by no means
v. Kentucky (unpublished opinion) (Ky. Dec.
20, 1984), cert. granted, --- U.S. ----, 105
S.Ct. 2111, 85 L.Ed.2d 476 (1985).
prosecutor used preemptory challenges to
remove three blacks from the jury venire.
Without pointing to any ruling by the state
trial judge or any defense effort to prove
discriminatory intent at this trial or as
long-standing policy, the petitioner now
says that he was denied a representative
jury, in violation of the Sixth, Eighth and
Fourteenth Amendments, and cites McCray v.
Abrams, 750 F.2d 1113 (2d Cir.1984).
Jimmy Glass, and
Mr. and Mrs. Brown were all white. There is
no factor of race in this case. No issue of
constitutional defect is raised by the
prosecution's exercise of three preemptory
challenges. Swain v. Alabama, 380 U.S. 202,
85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
lack of aggravating circumstance.
found that the killings were committed
during the perpetration of an aggravated
burglary, an aggravated escape and an armed
argues that since that circumstance was an
essential element of first degree murder
itself, there must be additional aggravating
circumstances found in order to distinguish
this case from others in which the death
penalty was not imposed. That would mean
that this is an arbitrary death sentence and
violative of the Eighth and Fourteenth
Amendments. They cite the Eighth Circuit's
decision in Collins v. Lockhart, 754 F.2d
258 (8th Cir.1985), cert. denied, --- U.S.
----, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985).
also found that the defendant knowingly
created a risk of death to more than one
person, another aggravating circumstance. We
fail to see why aggravating circumstances
narrow the sentencing discretion any less by
being made a constituent element of the
crime. The State of Louisiana is entitled to
authorize capital punishment for persons
guilty of these aggravated acts where the
jury does not find that mitigating
circumstances justify less than the death
penalty. See Gray v. Lucas, 677 F.2d 1086
(5th Cir.1982), cert. denied, 461 U.S. 910,
103 S.Ct. 1886, 76 L.Ed.2d 815 (1983).
Instructing the jury on its options.
Wingo claims that
the jury was not told that it was entitled
to reject the death penalty irrespective of
their finding of mitigating circumstances.
The breadth of their choice was explained to
the jurors. While they were instructed to
consider the statutory aggravating and
mitigating circumstances, they were told
that they could "consider any other relevant
circumstance or circumstances which you feel
should mitigate the severity of the penalty
to be imposed." They were also told that it
was their "duty to consider the
circumstances of the offense and the
character and propensities of the defendant
in determining sentence to be imposed."
Discriminatory Treatment of Parties on
court enforced its rule requiring that
parties requesting the submission of special
charges to the jury should supply the court
with those charges in writing prior to the
time of the closing argument.
Wingo says that the
judge did not treat the district attorney
and defense attorneys equally in this
respect. We find no unevenness.
court had erroneously charged the jury that
it was necessary to find that
Wingo himself had
done the killing in order to convict him.
Upon request of the prosecutor, the jury was
recalled and told that
Wingo could be found guilty if he was
concerned in the killing without doing the
actual shooting, and again, at the request
of the defense, that guilt depended upon a
finding of specific intent to kill.
Sequestered Voir Dire.
court denied a defense motion to question
the potential jurors individually. They were
brought to the courtroom 12 at a time and
questioned. This trial was transferred to
Lafayette on a change of venue and no
problem of prospective juror bias because of
excess publicity arose during the selection
of the jury. Nothing appears in the record
and no argument is now made to point to any
need for individual interrogation.
Discriminatory Administration of Louisiana
Death Penalty Statute.
Wingo asked for a
hearing on his claim that the probability of
execution is greater where the victim of a
crime is a white person, and therefore that
there may be racial discrimination in the
imposition of the penalty. The Supreme Court
of Louisiana made a proportionality review
and the conclusory argument that there is a
racial component raises no cognizable claim.
Moore v. Maggio, 740 F.2d 308 (5th
Cir.1984), cert. denied --- U.S. ----, 105
S.Ct. 3514, 87 L.Ed.2d 643 (1985).
Wingo makes the
argument that the exclusion of potential
jurors under Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), subjects the accused to a jury panel
unfairly biased on the issue of guilt, as
was held in Grigsby v. Mabry, 758 F.2d 226
(8th Cir.), cert. granted sub nom. Lockhart
v. McCree, --- U.S. ----, 106 S.Ct. 59, 88
L.Ed.2d 48 (1985). This contention is
contrary to the writing of the Court in
Witherspoon where it was stated:
we say today bears upon the power of a State
to execute a defendant sentenced to death by
a jury from which the only veniremen who
were in fact excluded for cause were those
who made unmistakably clear (1) that they
would automatically vote against the
imposition of capital punishment without
regard to any evidence that might be
developed at the trial of the case before
them, or (2) that their attitude toward the
death penalty would prevent them from making
an impartial decision as to the defendant's
guilt. Nor does the decision in this case
affect the validity of any sentence other
than one of death. Nor, finally, does
today's holding render invalid the
conviction, as opposed to the sentence, in
this or any other case.
Witherspoon, 391 U.S. at 522 n. 21, 88 S.Ct.
at 1777 n. 21 (emphasis in original). The
Court was speaking here of a single jury and
not a separate jury for determining guilt
and another for deciding punishment. If that
were necessary, the state would be required
to hold two virtually complete trials in
order to enforce a crime providing for
capital punishment. We do not think the
Constitution requires this. Rault v.
Louisiana, 772 F.2d 117 (5th Cir.1985);
Watson v. Blackburn, 756 F.2d 1055, 1056-57
district court's judgment denying writ of
habeas corpus is affirmed. Because the
Supreme Court has now under consideration
the Grigsby issue and has consistently
stayed the execution of sentence in all
pending petitions for habeas corpus raising
that issue, the issuance of our mandate and
the execution and enforcement of the
sentence against Jimmy
Wingo are stayed
for 30 days following this date to allow for
petitioner to seek writ of certiorari. In
event a petition for writ of certiorari is
filed within that time, this stay will
continue until the Supreme Court denies
certiorari, or sends its judgment to this
court, or until further order of the Supreme
Jimmy C. Wingo,
Frank Blackburn, Warden, Louisiana State
Docket number: 85-4580
Circuits, 5th Cir.
Appeal from the United
States District Court for the Western
District of Louisiana.
Before GEE, REAVLEY and
HILL, Circuit Judges.
ON PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC
(Opinion February 24,
1986, 5th Cir.1986, 783 F.2d 1046)
By motion for rehearing
Jimmy Wingo contends that we failed to
review his conviction under the standard
prescribed by Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Arguably, the point was before us, and we
supplement our opinion to reflect its
Enmund v. Florida, 458
U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982), holds that Eighth Amendment
proportionality forbids the punishment of
death absent an intention or contemplation
that life be taken. In Cabana v. Bullock,
--- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704
(1986), the Supreme Court explains that for
Enmundpurposes the finding of the requisite
culpability can be made subsequent to trial
by a state court and, in some cases, even by
a federal court. On the other hand, where
the specific intent to kill is an element of
the crime itself, the verdict of guilt is
reviewable on collateral attack in federal
court. To satisfy the due process
requirement of the Fourteenth Amendment, the
evidence as viewed most favorably to the
prosecution must warrant the conclusion that
a rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt. Jackson, 443 U.S. at 313,
99 S.Ct. at 2789.
In Wingo's state appeal,
the Supreme Court of Louisiana reviewed the
evidence and concluded that a rational juror
"could have concluded beyond a reasonable
doubt that defendant actively participated
in the killing of the victims (whose deaths
were obviously purposefully inflicted)."
State v. Wingo, 457 So.2d 1159, 1164-65
(La.1984). That court's determination is
entitled to great weight in our review.
Parker v. Procunier, 763 F.2d 665, 666 (5th
Cir.1985). We concur in that decision for
the reasons given by the Louisiana court and
in light of our discussion of the record in
our former opinion.
The petition for
rehearing is DENIED and no member of this
panel nor Judge in regular active service on
the Court having requested that the Court be
polled on rehearing en banc, (Federal Rules
of Appellate Procedure and Local Rule 35)
the Suggestion for Rehearing En Banc is
820 F.2d 116
Jimmy C. WINGO,
Hilton BUTLER, Warden Louisiana State
Angola, Louisiana, Respondent-Appellee.
United States Court of
June 12, 1987.
from the United States District Court for
the Western District of Louisiana; John M.
Application For Certificate of Probable
Cause to Authorize Appeal.
REAVLEY and HILL, Circuit Judges.
Wingo has been sentenced to death by the
Louisiana court for the fourth time for
the murders he committed in 1982. We
studied his arguments and the full trial
record upon his prior habeas appeal. See
Wingo v. Blackburn, 783 F.2d 1046 (5th
Cir.1986), on rehearing 786 F.2d 654. In
this successive writ petitioner raises
seven points and thereby repeats some of
his arguments of the prior appeal. These
points have all been answered by the
memorandum ruling of the district court,
and nothing needs be added to what Judge
Duhe has said. There is no substantial
showing of the denial of a federal right.
IFP, deny the application for certificate
of probable cause, and deny the
application for stay of execution.