United States v. Terry

Opinion

United States Court of Appeals Fifth Circuit F I L E D May 19, 2003

UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

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No. 02-50818

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLARENCE EDWARD TERRY, JR. also known as Clarence Edward Terry,

Defendant-Appellant.

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Appeals from the United States District Court for the Western District of Texas Civil Docket #W-01-CR-25-1 _________________________________________________________________

Before JONES and BENAVIDES, Circuit Judges, and KAZEN*, District Judge.

PER CURIAM:*

* District Judge for the Southern District of Texas, sitting by designation. * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. The court has carefully considered this appeal in light

of the briefs and oral arguments of counsel. Finding no reversible

error of fact or law, we affirm the conviction and sentence.

Terry first objects to the district court’s instruction

to the jury to consider his guilt of the lesser offense of second

degree murder if “. . . after all reasonable efforts, you are

unable to reach a verdict, . . .” on first degree murder. Even

assuming that Terry properly preserved his objection to this

instruction, which follows the Fifth Circuit pattern jury

instructions, the trial court did not err. This instruction was

more favorable to the defense than the 1990 version, which required

the jury to acquit the defendant before they could move on to the

lesser offense.

Terry also contends that the court’s instruction to the

jury on a sudden quarrel was inadequate, but this issue must be

reviewed for plain error only. The term “sudden quarrel” is

sufficiently clear as not to have required further definition by

the district court. There was no error.

Third, Terry asserts that his counsel was ineffective for

failing to object to “expert” testimony regarding blood splatter

evidence, particularly because the district court practically

invited such an objection. Even if the testimony was improperly

admitted, however, Terry cannot establish prejudice under the

2 Strickland test, due to the overwhelming weight of the evidence

against him.

Similarly, because of the extensive incriminating

evidence against Terry, especially his own confession, Terry’s

challenge to the sufficiency of malice aforethought and

premeditation evidence lacks merit. The gruesome details and

extended duration of the attack on Nicole Johnson fully supported

the jury’s determination.

AFFIRMED.