Opinion
Civil Action No. 4:01-CV-769-Y
April 26, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28 of the United States Code § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code § 2254.
B. PARTIES
Petitioner Robert Lee Whitaker, TDCJ-ID #837706, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Whitaker was charged in state court with murdering Cleo Heath while committing or attempting to commit robbery. (State Habeas R. at 14.) On the evening of May 14, 1997, Whitaker and several of his friends met Heath, and Heath informed them that he had marijuana to sell. (6 Rep. R. at 23-25.) Health gave Whitaker his address and pager number. ( Id.) Later, Whitaker and three others, Christian Jackson ("Big Crip"), Condreco Davis, and Preston Tippett, went to Heath's house to rob him. ( Id. at 97-99.) At the house, Whitaker and Preston went inside. ( Id.) Whitaker told Heath that he wanted to buy some marijuana, and, during the transaction, Whitaker took out a gun and shot Heath twice in the chest. ( Id. at 99-100.) Heath ran down the hall and into his children's bedroom and tried to jump out the window. ( Id. at 100.) Whitaker shot Heath two more times in the back, killing him. ( Id. at 101.) Whitaker then returned to the front room of the house. There, he pointed the gun at Heath's wife's head and pulled the trigger, but there were no more bullets in the gun. ( Id. at 100.)
Whitaker was convicted by a jury of capital murder, and the trial court assessed an automatic life sentence. (State Habeas R. at 14, 17.) He appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on March 2, 2000. Whitaker v. State, No. 2-98-371-CR (Tex.App.-Fort Worth Mar. 2, 2000, pet. ref'd) (not designated for publication). On August 30, 2000, the Texas Court of Criminal Appeals refused Whitaker's petition for discretionary review. Whitaker v. State, No. 811-00 (Tex.Crim.App. Aug. 30, 2000) (not designated for publication).
Whitaker also filed a state application for writ of habeas corpus challenging his conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte Whitaker, No. 49,705-01, at cover (Tex.Crim.App. July 25, 2001). Whitaker filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on August 20, 2001, and the proceeding was subsequently transferred to the Fort Worth Division. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Whitaker raises the following claims:
1. His constitutional rights were violated because the trial court improperly admitted co-conspirator statements into evidence.
2. His constitutional rights were violated because the trial court refused to grant him a mistrial when the prosecutor asked him "personal rhetorical questions" during jury argument.
3. His constitutional rights were violated because the trial court failed to grant his challenge for cause to an objectionable juror. (Federal Pet. at 7-8, 10-11.)
E. RULE 5 STATEMENT
Cockrell believes that Whitaker has sufficiently exhausted available state remedies on the issues presented and, thus, does not move for dismissal on this basis. (Resp't Answer at 3.)F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), 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 he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
1. Statements of Co-Conspirator
In his first ground, Whitaker complains that the trial court improperly admitted objected-to statements made by "Big Crip," a co-conspirator in the murder, because the statements were not made in the course of and in furtherance of a conspiracy and because he could not cross-examine Big Crip concerning the statements. (Federal Pet. at 7, 10.)
At trial, Velicia Wofford, Whitaker's girlfriend and co-conspirator in the crime, testified that she was also charged with capital murder and agreed to testify in Whitaker's case and the companion cases for a reduced charge and a 12-year sentence. (6 Rep. R. at 75-77.) She further testified that, on the night in question, she met Whitaker and Big Crip at the local Shell station. (6 Rep. R. at 84-85.) Wofford told Whitaker that they needed money to buy drugs and pay the rent. ( Id. at 85, 89; 7 Rep. R. at 14.) Whitaker asked Big Crip for a gun so he could use it "to get some money." (6 Rep. R. at 88-89.) Big Crip got a gun from under the hood of his car and gave it to Whitaker, and the three had a discussion. ( Id. at 88.) Wofford encouraged Whitaker to "do what he do best and get some money." ( Id. at 89; 7 Rep. R. at 24.) Wofford returned to the apartment she shared with Whitaker. (6 Rep. R. at 94.) Whitaker returned several hours later and told Wofford about the shooting. ( Id. at 96-102.) The next day, Wofford and Whitaker retrieved the gun from behind the Shell station, where Big Crip had hidden it, and took it to their apartment. ( Id. at 105.) When the police arrived, Wofford threw the gun out the window. ( Id. at 105.)
The state further sought to question Wofford regarding statements made by Big Crip pursuant to the co-conspirator rule under Texas Rule of Evidence 801(a)(2)(E). TEX. R. EVID. 801(e)(2)(E). (7 Rep. R. at 36.) Under this rule, an out-of-court statement is not hearsay if it is a statement by a co-conspirator during the course and in furtherance of a conspiracy. Id.
Outside the presence of the jury, Wofford testified that during the conversation at the Shell station earlier on the evening of May 14, Big Crip told Whitaker that if he let Whitaker use the gun, he would have to "gap the money," or split the money. (7 Rep. R. at 43.) Wofford also testified that the next day when the two met with Big Crip, Big Crip said he did not want to keep the gun because it was a murder weapon, and Big Crip told Wofford and Whitaker where it was located behind the Shell station. ( Id. at 42-43.) Big Crip also said that everyone needed to "be quiet" about what happened. ( Id. at 37, 41.)
Based on Wofford's testimony, the trial court determined that the state had shown by a preponderance of the evidence that a conspiracy did exist, that Whitaker was a member of the conspiracy, and that the out-of-court statements by Big Crip were made in Whitaker's presence during the course of or pendency of the conspiracy and in furtherance of the conspiracy. ( Id. at 48-49.) Consequently, the trial court ruled in favor of admissibility of the statements under rule 801(e)(2)(E). ( Id.) The state appellate court agreed with the trial court's determination and concluded that Texas law supports admission of the statements under 801(e)(2)(E) as evidence that a conspiracy existed and that the co-conspirators' took efforts to dispose of the murder weapon and conceal their involvement in the crime. (State Habeas R. at 27-30.)
This court must afford the state courts' evidentiary ruling the deference required by federal habeas law, unless the ruling violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair. 28 U.S.C. § 2254(d); Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998). Whitaker contends that admission of his co-conspirator's statements violates his rights under the Confrontation Clause of the Sixth Amendment to confront and cross-examine witnesses against him. (Federal Pet. at 10.) The Supreme Court, however, has specifically addressed and rejected this contention in Bourjaily v. United States, 483 U.S. 171, 181-83 (1987) (addressing virtually identical co-conspirator rule under Federal Rule of Evidence 801(d)(2)(E)).
2. Improper Jury Argument
In his second ground, Whitaker contends the trial court erred in refusing to grant a mistrial when the prosecutor approached him, pointed a finger at him, and asked questions directed towards him during the state's closing argument in the guilt/innocence phase. Specifically, the prosecutor commented during rebuttal argument:
What did it feel like to pull that trigger? How did that feel to shoot him in the chest that close? And then how did it feel to chase him down the hall like a hunted animal and shoot him in the back in front of his kids? (9 Rep. R. at 35.)
The trial court sustained Whitaker's objection to the argument and, as requested, instructed the jury to disregard the argument, but denied Whitaker's motion for a mistrial. ( Id.) Whitaker urged in the state courts, as he does here, that the argument violated his privilege against self-incrimination under the Fifth Amendment. (Federal Pet. at 10.) The state appellate court determined that the prosecutor's argument, although highly improper, was not so prejudicial as to negate the presumptive effectiveness of the trial court's instruction to disregard. (State Habeas R. at 3-5.) See Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999), cert. denied, 530 U.S. 1216 (2000).
In a federal habeas corpus proceedings, a federal court reviews improper prosecutorial argument during a state trial to determine whether the misconduct was so serious as to cast doubt upon the correctness of the verdict. United States v. Johnston, 127 F.3d 380, 398 (5th Cir. 1997), cert. denied, 522 U.S. 1152 (1998). In examining the effect of the prosecutor's impermissible comments, the court considers three factors: "the magnitude of the prejudicial effect of the remark, the efficacy of a cautionary instruction, and the strength of the evidence of the defendant's guilt." Id. (citing United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994), cert. denied sub. nom., 513 U.S. 1156 (1995)).
The court agrees with Cockrell that the prejudicial effect of the argument and gesture was slight. (Resp't Answer at 9.) The trial judge went to great pains to mitigate the effect of the comments by giving the following instruction to the jury:
I will instruct you not to consider the prosecutor's question as asking a question of the Defendant, but asking a rhetorical question based on the evidence, and you will totally disregard any inference that might have been given of the prosecutor looking and asking that question to the Defendant versus asking you, the jury. You will only consider that question as if it were asked to you as the fact finders in the case, but not to consider it at all as any inference to a question being asked to the Defendant in the courtroom at this time. (9 Rep. R. at 36.)
Thereafter, in response to the judge's inquiry, the jury indicated that it understood and could follow the instruction. ( Id.) Moreover, as pointed out by Cockrell, the effect is further minimized when measured with the evidence of Whitaker's guilt. In addition to Wofford's testimony, the victim's wife identified Whitaker at trial as the man who shot her husband and put a gun to her head and pulled the trigger. (8 Rep. R. at 47-48.) In light of the curative instruction and the overwhelming evidence of Whitaker's guilt, the prosecutorial misconduct does not rise to the level of reversible error.
3. Jury Selection
In Whitaker's third and final ground, he contends his constitutional rights were violated because the trial court improperly denied his challenge for cause to a prospective juror who could not consider the full range of punishment. (Federal Pet. at 7-8, 11.) In the state courts, Whitaker's complaint involved veniremember Knapp, who originally stated during voir dire that she "was not sure [she] could render a verdict of probation for someone who intentionally committed murder." (3 Rep. R. at 218.) She was later rehabilitated during individual questioning. ( Id. at 269-72.) Nevertheless, Whitaker requested that she be struck for cause, and the trial court denied his request. ( Id. at 285, 288.) Relying on Texas law, the state appellate court concluded that because Whitaker was convicted of capital murder, any error relating to the punishment range of the lesser included offense of murder was harmless as it made no contribution to his conviction or punishment. (State Habeas R. at 23.) See King v. State, 953 S.W.2d 266, 268 (Tex.Crim.App. 1997).
During individual questioning, the trial court again asked Knapp whether she could consider the full range of punishment, including probation if applicable to the case. The following exchange occurred:
[KNAPP]: During all this interviewing, I've realized what happened. I cannot say what was said, of course. I'm not the court reporter. I can't say exactly what was said. I can only say my perception was different when [the prosecutor] spoke. I took what she said, the intentional taking of life included everything, euthanasia, manslaughter, anything. But when Mr. — I'm sorry.
[DEFENSE COUNSEL]: Moore.
[KNAPP]: — Moore spoke, I somehow perceived in my mind the big red "murder" word, and I raised my hand. It just seemed exclusive to me. But I do stick to my first answer, because euthanasia would be included in the full range, or manslaughter or whatever the case may be.
THE COURT: So is it your position there are different fact situations which could justify probation?
[KNAPP]: Yes.
THE COURT: Could you keep an open mind to all those penalties?
[KNAPP]: Yes. (3 Rep. R. at 269-70.)
The standard for determining when a veniremember may be excluded for cause is whether the prospective "juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985). A state trial court's refusal of a petitioner's challenge for cause is a "factual issue" entitled to a presumption of correctness. Id. at 429-30; see also 28 U.S.C. § 2254(e)(1); Soria v. Johnson, 207 F.3d 232, 242 (5th Cir.), cert. denied, 530 U.S. 1286 (2000).
The record in this case does not reveal that Knapp's views regarding the full range of punishment, including probation, would have prevented or substantially impaired the performance of her duties as a juror. Thus, Whitaker has failed to rebut with clear and convincing evidence the trial court's implicit factual finding that the prospective juror could follow the court's instructions.
5. Summary
In sum, Whitaker is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Whitaker was not entitled to relief is not contrary to or involve an unreasonable application of clearly established federal law and is not based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Whitaker's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 20, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 20, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.