Opinion
NO. 4:00-CV-1663-A
February 6, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the petition for writ of habeas corpus ("petition") filed by William Wesley Chappell ("Chappell"), an inmate of the Texas Department of Criminal Justice, Institutional Division, who is under sentence of death. The court has determined that the petition should be denied for the reasons set forth in this memorandum opinion and order.
I. Procedural History
On February 7, 1989, an indictment was filed against Chappell in Tarrant County, Texas, for the May 3, 1988, murder of Alexandra Heath. The one-count, six-paragraph indictment charged Chappell with the offense of murder during the course of committing and attempting to commit the offense of burglary with the intent to commit offenses of retaliation (¶¶ 1-3) and theft (¶¶ 4-6). Chappell was tried in November 1989 and found guilty. Punishment was assessed at death. Chappell appealed and the Court of Criminal Appeals of Texas reversed and remanded the cause to the trial court, holding that reversible error occurred when the trial judge allowed the venire to be shuffled a second time. Chappell v. State, 850 S.W.2d 508 (Tex.Crim.App. 1993). A second trial was begun in November 1993. Chappell's supplemental motion for continuance was granted, resulting in the declaration of a mistrial. Tr. Vol. 1 at 19. On September 30, 1996, a jury was seated and sworn and trial on the merits began. Id. at 23. On October 9, 1996, the jury returned its verdict finding Chappell guilty of the offense of capital murder. The trial continued with the punishment phase and, on October 10, 1996, the jury returned its verdict mandating a sentence of death under Texas law. Id. By judgment signed October 17, 1996, the state trial court ordered that Chappell's punishment be death. Tr. Vol. 1E at 2128-29.
No execution date has ever been set.
Chappell appealed and Robert Ford ("Ford") was appointed to represent him. On January 2, 1998, Ford filed Chappell's brief, presenting three points of error. Shortly thereafter, Chappell, pro se, filed motions seeking to strike the brief, to dismiss Ford as counsel of record, and to proceed pro se. The Court of Criminal Appeals remanded the case to the trial court for hearing. The trial court conducted a hearing on Chappell's motion for self-representation and made the findings that would allow the motion to be granted. The Court of Criminal Appeals then granted Chappell's motion for self-representation. After extensions of time were granted, Chappell ultimately filed a brief raising seven points of error. The Court of Criminal Appeals affirmed the judgment and sentence in an unpublished opinion. Chappell v. State, No. 72, 666 (Tex.Crim.App. Oct. 13, 1999).
On May 21, 1999, Chappell, through appointed counsel Thomas Lasater Allensworth ("Allensworth"), filed his state petition for writ of habeas corpus, raising six claims for relief. On September 7, 1999, the trial court adopted the state's proposed findings of fact and conclusions of law. On November 24, 1999, the petition was denied per curiam. Ex parte Chappell, No. 42, 780-01 (Tex.Crim.App. Nov. 24, 1999). The opinion stated, in pertinent part: "This Court has reviewed the record. The trial court's findings and conclusions are supported by the record and upon such basis the relief sought by the applicant is denied."Id., slip op. at 2.
On September 13, 2000, Allensworth filed a motion requesting that he and Reginald R. Wilson be appointed to represent Chappell in the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 20, 2000, following a telephone conference/hearing with Allensworth, Wilson, and Chappell, the court denied the motion. On October 6, 2000, Chappell filed motions for leave to proceed in forma pauperis and for appointment of counsel. Following a further telephone conference/hearing on October 25, 2000, the court granted Chappell's motion for leave to proceed in forma pauperis and appointed Danny Burns and Greg Westfall to represent Chappell. On December 26, 2000, Chappell filed his petition and, on January 26, 2001, respondent, Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, filed his response.
The court determined that Chappell had not authorized the filing of the motion on his behalf.
As stated in the court's January 26, 2001, order granting respondent's motion for leave to file an answer in excess of the court's page limitation, the court is not considering respondent's motion for summary judgment, as it does not fit into the scheme of review of petitions filed under 28 U.S.C. § 2254. See Rules 2 and 5 of the Rules Governing § 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.
II. Description of the Offense
The Court of Criminal Appeals of Texas described the trial evidence as follows:[Chappell] was charged with murdering Alexandra Heath in the course of committing or attempting to commit burglary of a building owned by her mother, Martha Lindsey, with the intent to (1) commit the felony offense of retaliation against Lindsey or her husband, Elbert Sitton, or (2) commit the theft of property belonging to Lindsey or Sitton. Heath, Lindsey, and Sitton were all killed inside Lindsey's home.
The evidence illustrates that [Chappell] had a strained relationship with Lindsey, Sitton, and their daughter, Jane Sitton — Alexandra's half-sister. [Chappell], who was then 43 or 44 years old, and Jane, who was then 14 or 15 years old, began dating in 1981 or 1982 and stopped seeing each other in 1983 or 1984. In May 1984, [Chappell] was indicted for molesting Jane's daughter. Lindsey had reported the offense to the police. In May 1987, [Chappell] was found guilty of one count of indecency with a child and was sentenced to five years' confinement. [Chappell] was released on bond pending appeal.
After the indecency trial, the Lindsey/Sitton family congregated outside the courtroom. When [Chappell] came out, he informed Lindsey that "it wasn't over with yet" and that he "would get her for that." [Chappell] related his threat to his then-wife Sally Hayes, denied molesting Jane's daughter and said that Lindsey and the Sittons were after his money. [Chappell] stated that he wanted to "do away" with the Lindsey/Sitton family.
In January 1988, Hayes drove [Chappell] to Lindsey's home, where Elbert and Jane also resided. [Chappell] had purchased some gasoline and put it in jugs. Hayes let [Chappell] out near Lindsey's home and drove around for fifteen minutes. When [Chappell] signaled her with his flashlight, she picked him up. [Chappell] no longer had all of the jugs and said that he had set fire to Lindsey's house. [Chappell] became upset when he later learned that the home suffered relatively little damage and that none of the occupants were injured. In February 1988, [Chappell] and Hayes went to a gun show. Hayes testified that she purchased a 9-mm gun for [Chappell] and [Chappell] purchased some ammunition, an extra barrel, a spring, and a "small round thing with holes in it" that fit over the barrel of the gun. Thereafter, [Chappell] began working on a silencer for the gun. Hayes testified that [Chappell] tested this device at some property he had in Montague County. In March 1988, [Chappell] and Hayes purchased two walkie-talkies at a Radio Shack.
In April 1988, [Chappell] settled an unrelated personal-injury suit against a church and received a cashier's check for $66,000. That same month, [Chappell] and Hayes went to Hornbeak, Tennessee, where Hayes owned a house. [Chappell] brought $60,000 of his settlement to put into certificates of deposit in hopes of preventing the Lindsey/Sitton family from getting it. Hayes testified that [Chappell] planned to return to Texas and the Lindsey home in order to kill anyone who happened to be in it.
On May 3, 1988, [Chappell] and Hayes left Tennessee at 10:30 a.m. in a gray, burgundy, and black van. They arrived in Fort Worth around 8:30 p.m. and stopped at a grocery store on North Main Street. While Hayes went into the store, [Chappell] changed into dark clothing, makeup, and a wig. [Chappell] also had a black ski mask, brown gloves, and a nylon tote bag containing a walkie-talkie, the 9-mm gun, a pistol, the silencer, clips for the guns, a crowbar, and wire cutters.
Sometime after 9:00 p.m. Hayes let [Chappell] out of the van near Lindsey's home. Hayes then drove around the neighborhood waiting for [Chappell] to contact her by walkie-talkie. Fifteen to twenty minutes later, [Chappell] contacted Hayes, and she picked him up. When he got into the van, [Chappell] stated that he had "shot Jane, her mother, and her daddy." He also said that he had taken some money to make it look like a robbery. The pair then drove back to Tennessee, where they disposed of as much evidence as possible. [Chappell] was shocked when he later learned that it was not Jane, but her half-sister, Alexandra Heath, whom he had killed. Heath was shot several times while lying in bed and died at the scene. Before his death, Sitton told a Fort Worth police officer that an intruder wearing a ski mask had confronted Sitton and Lindsey in their bedroom, where they had been watching television. After Lindsey complied with the intruder's demand for money, the intruder shot the couple several times. Lindsey died two days later. Sitton, who survived for two months in the hospital, was able to tell the emergency room physician that he believed the intruder was the same man who raped his daughter or granddaughter.Chappell v. State, No. 72, 666, slip op. at 4-7.
III. Scope of Review
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). Under AEDPA, the ability of federal courts to grant habeas relief to state prisoners is narrowly circumscribed:
(d) 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.
AEDPA, § 104(3) (codified at 28 U.S.C. § 2254 (d)). AEDPA further provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
AEDPA § 104(4) (codified at 28 U.S.C. § 2254 (e)(1)).
Having reviewed the petition, the response, the record, and applicable authorities, the court finds that none of Chappell's grounds has merit.
IV. Grounds for Relief
Chappell urges seven grounds in support of his petition. Briefly, the grounds stated are:
Ground One: The evidence was constitutionally insufficient to support Chappell's conviction for capital murder.
Ground Two: Chappell was deprived of his constitutional right to present a defense when the trial court refused his attempt to present the testimony of Ricky Lee Green to show that Green had committed the crime.
Ground Three: The evidence was constitutionally insufficient to support the jury's finding that Chappell would commit criminal acts of violence that would constitute a continuing threat to society.
Ground Four: By excluding all testimony regarding Ricky Lee Green's multiple admissions that he was the one who committed the murders, the trial court deprived Chappell of the right to present a defense and rendered his trial fundamentally unfair.
Ground Five: Chappell was denied a fair trial when the state trial court refused to grant the challenge for cause of veniremember Lea.
Ground Six: Chappell was denied a fair trial when the state trial court refused to include a parole instruction for the jury to know that if sentenced to a life sentence Chappell would not be eligible for parole within his foreseeable life expectancy.
Ground Seven: Chappell was denied a meaningful appeal because he was denied access to the record in a timely manner and denied access to the law library to perform research.
V. Ground One Sufficiency of the Evidence
In his first ground, Chappell contends that the evidence was constitutionally insufficient to support his conviction for capital murder. The court is not persuaded that this ground was adequately exhausted in state court. Chappell did not attack the sufficiency of the evidence on direct appeal. In his state habeas petition, his first claim was:
The trial court violated [Chappell's] right to due process of law as guaranteed by Article I, § 19 of the Texas Constitution and the Fifth and Fourteen Amendments to the United States Constitution in denying [Chappell's] motion for instructed verdict and in imposing sentence in this case because there was no corroboration of Ms. Hayes' testimony that [Chappell] was responsible for the deaths of Alexandra Heath, Martha Lindsey, and Elbert Sitton.Ex parte Chappell, tr. at 36. The trial court concluded, in pertinent part:
CONCLUSIONS OF LAW
1. The purpose served by a post-conviction writ of habeas corpus is limited, and it lies only to review jurisdictional defects or denials of fundamental or constitutional rights. Ex parte Tovar, 901 S.W.2d 484, 485 (Tex.Crim.App. 1995).
2. The failure to adhere to a legislative directive or mode of proceeding designed to safeguard a constitutional right will be cognizable only when the omission results in the denial of a constitutional protection. Ex parte Tovar, 902 S.W.2d at 485.
3. The accomplice witness rule is a legislative creation, and not required by common law or as a matter of federal constitutional law. Thompson v. State, 691 S.W.2d 627, 631 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). 4. Challenges under the accomplice witness rule should not be cognizable on an application for writ of habeas corpus.Id. at 165. The court then went on to discuss the sufficiency of the evidence under the state accomplice witness rule, and recommended that relief be denied. Thus, the state court interpreted the claim to be limited to the specific issue set forth and not to be an attack on the sufficiency of the evidence in general.
To the extent that it could be argued that sufficiency of the evidence was raised by Chappell and considered by the state courts, the findings and conclusions with regard to the first claim of the state habeas petition establish that this ground has no merit. Chappell does not point to any specific defect in the evidence. His conclusory allegations are insufficient to entitle him to relief. Blackledae v. Allison. 431 U.S. 63, 74 (1977); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
VI. Grounds Two and Four Presentation of Defense
In the second and fourth grounds, Chappell complains of the trial court's refusal to let him present testimony of Ricky Lee Green ("Green"), another death row inmate, to show that Green and not Chappell murdered Heath and her parents. Ground two alleges that Chappell was deprived of his Sixth Amendment right to present a defense; ground four alleges that the trial was rendered fundamentally unfair as a result.
The "refusal" of the trial court to allow Chappell to present hearsay statements made by Green was discussed at length by the Court of Criminal Appeals of Texas in its opinion on direct appeal, Chappell v. State, No. 72, 666, slip op. at 8-12, and was the subject of numerous findings of fact and conclusions of law on state habeas review, Ex parte Chappell, tr. at 168-72. Chappell does not contend that any of the State's fact findings are erroneous. Instead, he argues that United States v. Scheffer, 523 U.S. 303 (1998), upon which the Court of Criminal Appeals relied on direct appeal, does not support the conclusion that the testimony at issue could be excluded.
Although Scheffer dealt with the exclusion of polygraph test results, the Court noted that "[a] defendant's right to present relevant evidence is not unlimited." 523 U.S. at 308. Other privileges may be invoked to trump the accused's Sixth Amendment right to compulsory process. See, e.g., Washington v. Texas, 388 U.S. 14, 23 n. 21 (1967). And, the mere invocation of the Sixth Amendment right "cannot automatically and invariably outweigh countervailing public interests." Taylor v. Illinois, 484 U.S. 400, 414 (1988). "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly." Id. at 410. Chappell's argument to the contrary is without merit.
VII. Ground Three Evidence of Continuing Threat
In his third ground, Chappell alleges that the evidence was constitutionally insufficient to support the jury's finding that he would commit criminal acts of violence that would constitute a continuing threat to society. He offers nothing but conclusory allegations in support of this allegation. Thus, denial of this ground is appropriate without further consideration. Blackledge, 431 U.S. at 74; Ross, 694 F.2d at 1011.
Chappell states:
In light of the review of the evidence set out above, it is clear that the evidence at trial was constitutionally insufficient to support an affirmative answer to the "future dangerousness" special issue. No rational juror could have answered this special issue beyond a reasonable doubt based upon the evidence the state presented at trial.
Pet. at 32. To the contrary, based on a synopsis of the evidence as described by Chappell, no rational juror could have found otherwise:
Briefly stated, the State's presentation of the facts of the case can be reduced as follows: [Chappell] had inappropriate contact with the daughter of his then-girlfriend, Jane Sitton. The maternal grandmother of the child, Martha Lindsey, found out about that contact and reported it to the State. The State secured [Chappell's] conviction for indecency with a child. Prior to the conviction, Ms. Lindsey initiated a lawsuit on behalf of the child against [Chappell]. [Chappell] was angry with Ms. Lindsey and her husband Elbert (Eb) Sitton for bringing the charges. He was also angry at them after they sued him as next friends for the child. He became even more angry at them after his conviction for the offense. While out on bond pending appeal, [Chappell] planned his revenge. He tried to scare the family by burning down an abandoned house they owned. That failed to frighten them, so [Chappell] tried to burn down the home they were living in. That attempt was unsuccessful. So [Chappell] decided he would kill them.
After an elaborate series of preparatory steps, [Chappell] and his wife, Sally Hayes (then Sally Hayes Chappell) drove from Hornbeak, Tennessee to Fort Worth, arriving in the early evening of May 3, 1988, shot Ms. Lindsey, Ms. Lindsey's daughter, Ms. Heath and Mr. Sitton multiple times, and then returned to Hornbeak, where they arrived early the next day. Twenty-one days after the murders, Ms. Hayes confessed to the killings. Having been both betrayed and put at risk by his wife, [Chappell] then tried to have her silenced, employing an individual whom he had met while in the Tarrant County Jail, Chris Carroll, to kill her. Like Ms. Hayes, however, Carroll turned State's evidence, testifying against [Chappell] at trial.
Pet. at 5-6.
The court notes in any event that the sufficiency of the evidence to support the jury's finding was considered at length by the trial court.Ex parte Chappell, tr. at 181-83. Chappell has not attempted to show, much less shown, that the findings are not supported by the record or that the conclusions reached are contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254 (e) (1); Hughes v. Johnson, 191 F.3d 607, 621 (5th Cir. 1999), cert. denied, 120 S.Ct. 1003 (2000) .
VIII. Ground Five Denial of Challenge for Cause
In his fifth ground, Chappell contends that he was denied a fair trial because the trial court refused to grant his challenge for cause of veniremember Lea. This ground was addressed on direct appeal, Chappell v. State, slip op. at 12-17, and in the state habeas proceeding, Ex parte Chappell, tr. at 177-80.Chappell received what the constitution guaranteed him if his jury was composed of persons who could conscientiously and properly carry out their sworn duty to apply the law to the trial evidence. See Ross v. Oklahoma, 487 U.S. 81, 86 (1988) (quoting Lockhart v. McCree, 476 U.S. 162, 184 (1986)); Patton v. Yount, 467 U.S. 1025, 1035 (1984). The trial court's failure to sustain a challenge for cause is violative of a defendant's Sixth Amendment rights if the juror who was properly excludable for cause sat on the jury and the defendant properly preserved his right to challenge the trial court's failure to remove the juror for cause. Ross, 487 U.S. at 85-86. The important inquiry is whether the persons who were selected to sit on the jury were impartial, not whether the venirepersons for whom challenges for cause were denied should have been excused. Id. at 86.
The decision whether a prospective juror will be able to faithfully and impartially apply the law is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Wainwright v. Witt, 469 U.S. 412, 428 (1985). His determinations are entitled to deference. Id.; Fuller v. Johnson, 114 F.3d 491, 500-01 (5th Cir.), cert. denied, 522 U.S. 963 (1997). Chappell has not shown that the trial court's determination was incorrect. Veniremember Lea was questioned extensively about his understanding of the words "possibility" and "probability." In all the questioning of him, there is no reason to conclude, as Chappell urges, that Lea was "predisposed to vote death no matter what the evidence showed." Pet. at 45. Rather, he very clearly stated that whether the death penalty would be appropriate would depend on the evidence. S.F. Vol. 12 at 958-59.
IX. Ground Six Parole Instruction
In his sixth ground, Chappell says that he was denied a fair trial because the trial court refused to include a parole instruction that, if sentenced to a life sentence, Chappell would not be eligible for parole within his foreseeable life expectancy. His argument in support of this ground is very misleading, citing to Brown v. Texas, 522 U.S. 940 (1997), as though it were an opinion of the United States Supreme Court. In fact, the cite is to an opinion by Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, on denial of a petition for writ of certiorari and is of no precedential value.
Chappell also cites to Simmons v. South Carolina, 512 U.S. 154 (1994). In Simmons, the Court reasoned that since South Carolina "rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future, the fact that the alternative sentence to death is life without parole will necessarily undercut the State's argument regarding the threat the defendant poses to society." 512 U.S. at 168-69. The court specifically distinguished the Texas scheme, which does not include a life-without-parole sentencing alternative, and said that it would not "lightly second-guess a decision whether or not to inform a jury of information regarding parole" where parole is available. Id. at 168 n. 8. When confronted with arguments similar to Chappell's, the Fifth Circuit has repeatedly ruled that Simmons is inapplicable. Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000); Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir.), cert. denied, 523 U.S. 1113 (1998);Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994), cert. denied, 514 U.S. 1108 (1995). And, more recently, the Supreme Court has reiterated that: "The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law." Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2120 (2000). Thus, Chappell asks the court to apply a new rule, which is barred by Teague.
The Court of Criminal Appeals of Texas distinguished Simmons at length in Smith v. State, 898 S.W.2d 838, 848-53 (Tex.Crim.App., cert. denied, 516 U.S. 843 (1995). The Court noted: "Because Texas does not allow parole information to enter the jury's deliberations, a defendant is not sentenced based on information which he has had no opportunity to rebut or explain." 898 S.W.2d at 853.
Teague v. Lane, 489 U.S. 288 (1989).
X. Ground Seven Access to Records
In his final ground, Chappell contends that he was denied a meaningful appeal because the State denied him access to the record in a timely manner and did not allow him access to the law library to research his cases. This ground has not been exhausted because it was never presented to the state courts. Picard v. Connor, 404 U.S. 270, 276 (1971). Thus, the claim is procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 (1991). In any event, the claim is belied by the record. Although Chappell may not have received the record as soon as he would have liked, he received two extensions of time in which to prepare and file his appellate brief. And, as he testified at the hearing to determine whether he should be allowed to proceed pro se, he had adequate access to the law library through his fellow inmates. For example, Chappell testified:
To get around this rule, you get other people to order three law books also, so the limitation of three, but I can get as many as I need because I can get five people, ten people, whatever I need, to order me three law books each.
Feb. 17, 1998, tr. of hearing on Mot. for Self-Representation at 17. The transcript shows that Chappell knew exactly what he was doing when he requested that Ford be released and that he be allowed to represent himself on appeal. He has no reason to complain, as he does in essence, that he got his wish.
XI. ORDER
The court ORDERS that Chappell's petition be, and is hereby, denied, and be, and is hereby, dismissed.