IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-1710
BOBBY GLEN WILCHER, Petitioner-Appellant,
versus
EDWARD HARGETT, Superintendent Mississippi State Penitentiary, Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Mississippi
(November 19, 1992)
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Bobby Glen Wilcher appeals denial of his petition for writ of
habeas corpus, challenging both his conviction and his death
sentence. He asserts that his conviction was obtained in violation
of his Fifth and Sixth Amendment rights and that his death sentence
was imposed in violation of the Eighth Amendment. We affirm the
district court's denial of Wilcher's petition on all claims except
his claim that the jury relied on an unconstitutionally vague
aggravating factor. We vacate the dismissal of the habeas petition
as to this claim and remand to the district court with instructions
to issue the writ unless the State of Mississippi initiates appropriate proceedings within a reasonable time as set forth in
Clemons v. Mississippi, 494 U.S. 738 (1990).
I.
On March 5, 1982, Wilcher met two acquaintances, Velma Odell
Noblin and Katie Bell Moore in a Scott County bar. When the bar
closed, Wilcher convinced the two women to give him a ride home.
Wilcher then gave them directions leading to a deserted area in
Bienville National Forest. He stabbed Noblin and Moore to death,
left their bodies, and took their jewelry and their car.
Wilcher had cut his finger during the murder and went to the
hospital for treatment of his wound. En route, he was stopped for
speeding. The officer saw two purses on the front seat and a black
bra on the back seat. Wilcher was covered in blood. He told the
officer he was hurrying to the hospital to get his finger treated
and asked for an escort. The officer followed Wilcher to the
hospital, arriving at 2:00 a.m. At the hospital, Wilcher gave the
officer a blood-covered knife. Wilcher's thumb was treated and he
was released.
Later that day, Wilcher was arrested on an unrelated larceny
charge. Soon thereafter, Noblin and Moore's bodies were discovered
on the service road in the national forest. After learning about
Wilcher's hospital visit of the night before, Sheriff Glen L.
Warren and Deputy Otis Kelly gave Wilcher a standard Miranda
warning and questioned him. Wilcher declined to make any
statement.
2 Wilcher asked the Sheriff to see his parents. The officers
took him to his father's home and allowed him to talk to his
parents in a separate room. Wilcher was returned to the sheriff's
office and given Miranda warnings. At 9:14 p.m. on March 7, 1982,
Wilcher signed the waiver of his Miranda rights and gave a
statement which was reduced to writing. Wilcher signed this
statement which admitted killing both Noblin and Moore with a
knife.
On March 8, Wilcher's father, Gene Wilcher, invited officers
to his home and escorted them to his son's bedroom and pointed out
a styrofoam container on top of a chest. The container held a
watch, two rings, and a necklace later determined to belong to
Velma Noblin. On March 11, Wilcher directed Sheriff Warren and a
deputy to an unpaved road in rural Scott County and pointed out the
location of the two purses and the black bra that had been in the
car when he was stopped for speeding.
On the way back to the jail that day, Wilcher requested that
he be allowed to speak with his mother. The sheriff took him to
the Wilcher home where he was allowed to visit with his mother for
a while. After this visit, upon his return to jail, Wilcher gave
a more detailed statement again admitting that he killed Noblin and
Moore in order to rob them. This statement was more detailed than
the first statement. He tricked them into driving down a deserted
road and then stabbed them to death so that he could take their
jewelry.
3 At approximately the same time as Wilcher was giving this
statement, Wilcher was being indicted by the Scott County grand
jury for both murders. The district court found that Wilcher
signed the waiver form before giving this statement at 12:52 p.m.
and the statement was completed and signed by Wilcher at 2:05 p.m.
At about 1:30 that same afternoon, the Scott County Circuit Judge
appointed counsel for Wilcher. Wilcher was unaware that he had
been appointed counsel until after he had signed the second
Wilcher was indicted on March 11, 1982 for the capital murders
of Katie Moore and Velma Odell Noblin. He was tried separately for
the two murders. The first trial, held in Scott County,
Mississippi, for the murder of Velma Noblin led to a conviction of
capital murder and a sentence of death on July 31, 1982. The
sentencing jury found the following aggravating circumstances:
1. the capital offense was committed while the defendant was engaged in the commission of or an attempt to commit the crime of robbery or kidnapping.
2. The capital offense was especially heinous, atrocious, or cruel.
In accordance with Mississippi's capital sentencing procedure, the
jury found that these aggravating circumstances outweighed any
mitigating circumstances.
On direct appeal to the Mississippi Supreme Court, Wilcher
raised eleven claims.1
1. The trial court erred in not granting the appellant a change of venue;
4 The Mississippi Supreme Court affirmed the conviction and
sentence on February 15, 1984. This opinion was modified and
Wilcher's petition for rehearing was denied on April 25, 1984.
Wilcher v. State, 448 So.2d 927 (Miss. 1984).
2. The trial court erred in overruling the appellant's motion for continuance;
3. The trial court erred in overruling appellant's motion to quash the death qualification and in excusing juror for cause;
4. The trial court erred in admitting into evidence the watch, rings and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search;
5. The trial court erred in admitting appellant's written statements and the fruits thereof;
6. The trial court erred in overruling appellant's objection to the state eliciting from him on cross examination the fact that he was arrested for larceny, a charge unrelated to this case;
7. The trial court erred in granting instruction S-1A and S-7 and erred in refusing instructions D-2 and D- 37;
8. The trial court erred in overruling appellant's motion to make the final argument before the jury during the guilt phase;
9. The trial court erred in granting instructions S- 1, S-2, and S-5, and in refusing D-14, D-15, and D-16 during the sentencing phase of the trial;
10. The trial court erred in sustaining objections and excusing the jury during oral argument of appellant's counsel;
11. The trial court erred in not granting the appellant a mistrial during the argument when district attorney called appellant a "Butcher."
5 Wilcher filed a petition for writ of certiorari raising the
issues of the trial court's refusal to allow defense counsel to
describe the gas chamber and otherwise emphasize the gravity of the
jury's decision; whether there was sufficient evidence to permit
the jury to find an aggravating factor of kidnapping; whether the
Mississippi statutory aggravating factor of murder that is
"especially heinous, atrocious or cruel" is unconstitutionally
vague; and whether the Mississippi death penalty statute
impermissibly places the burden on the defendant to prove there are
sufficient mitigating factors to overcome the aggravating factors.
Wilcher v. Mississippi, 469 U.S. 873 (1984).
Wilcher's trial for the capital murder of Katie Moore was
moved to Harrison County, Mississippi. The jury returned a verdict
of guilty and a sentence of death, finding the same aggravating
circumstances as were found in the Noblin trial: murder during the
commission of or attempt to commit robbery or kidnapping and an
offense that was especially heinous, atrocious or cruel.
again raised eleven challenges to his second conviction and
sentence.2
1. The trial court erred in not sustaining appellant's plea of former or double jeopardy;
2. The trial court erred in overruling the appellant's motions for continuance;
3. The trial court erred in allowing the death qualification voir dire questions;
4. The trial court erred in refusing to allow the
6 The Mississippi Supreme Court affirmed Wilcher's second
conviction and death sentence on July 11, 1984. Wilcher v. State,
455 So.2d 727 (Miss. 1984), cert. denied, Wilcher v. Mississippi,
470 U.S. 1034 (1985).
Wilcher filed two Motions to Vacate or Set Aside Judgment and
Sentence in the Mississippi Supreme Court in accordance with the
Mississippi Uniform Post Conviction Collateral Relief Act. The two
motions, raising 18 grounds for relief, were consolidated. The
Mississippi Supreme Court denied the requested relief. Wilcher v.
State, 479 So.2d 710 (Miss. 1985), cert. denied, 479 U.S. 1078
(1986).
defendant to cross examine Gene Wilcher when called as a witness for the state;
5. The trial court erred in admitting into evidence the watch, rings, and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search;
6. The trial court erred in admitting into evidence, over objection of counsel, appellant's oral and written statements and the fruits thereof;
7. The trial court erred in granting instructions S-1 and S-7 and erred in refusing instruction D-2 during the guilt phase;
8. The trial court erred in refusing instructions D- 17 and D-37 during the guilt phase;
9. The trial court erred in refusing instructions D- 43 and D-44 during the guilt phase;
10. The trial court erred in refusing instruction D-11 during the sentencing phase;
11. The trial court erred in entering its supplemental judgment of September 23, 1982.
7 Wilcher filed petitions for writ of habeas corpus in the
United States District Court for the Southern District of
Mississippi challenging both his convictions and sentences. The
district court consolidated these petitions and denied relief on
June 19, 1990. Wilcher filed notice of appeal and application for
certificate of probable cause. The certificate of probable cause
was granted on September 24, 1990.
II.
Wilcher asserts here that Mississippi denied his Sixth
Amendment rights by taking a second statement after appointment of
counsel. This written statement was admitted over objection at
both trials.
A defendant's Sixth Amendment right to counsel attaches upon
the initiation of adversary proceedings. Michigan v. Jackson, 475
U.S. 625, 106 S.Ct. 1404 (1986). Under Mississippi law, adversary
proceedings arguably began when a warrant was issued for Wilcher's
arrest, but certainly so with his indictment. Wilcher executed a
written waiver of his right to counsel immediately before giving
his second statement to the officers. This voluntary waiver of his
Sixth Amendment rights was constitutionally valid. Montoya, 955
F.2d at 282; Patterson v. Illinois, 487 U.S. 285 (1988) (waiver of
right to counsel after Miranda warning is constitutionally valid
waiver).
Wilcher asserts that even if his waiver was voluntary and
knowing, the questioning in this case violated the prophylactic
rule of Michigan v. Jackson, 106 S.Ct. at 1411. The Supreme Court
8 held in Jackson that "if police initiate interrogation after a
defendant's assertion at an arraignment or similar proceeding, of
his right to counsel, any waiver of the defendant's right to
counsel for that police-initiated interrogation is invalid." Id.
The State argues that Wilcher never took any action to invoke his
right to counsel and therefore had not triggered the Jackson rule.
We recently addressed the effect of appointment of counsel on
the rights of a defendant who has never asserted or accepted the
counsel. We held that a defendant's Sixth Amendment rights are not
violated by questioning in the absence of his attorney unless the
defendant has asserted his right to an attorney. Montoya v.
Collins, 955 F.2d 279 (5th Cir. 1992).
Montoya was appointed counsel at his arraignment, but made no
statement when counsel was appointed. 955 F.2d at 282. After
arraignment, Montoya waived his rights and made an incriminating
statement to police officers. We held that "for purposes of
Jackson, an `assertion' means some kind of positive statement or
other action that informs a reasonable person of the defendant's
`desire to deal with the police only through counsel.'" Id. at
283. Thus, we concluded that Montoya's interrogation did not
violate the rule of Jackson because he did not assert a right to
counsel and thereby trigger its protection.
Wilcher likewise did not assert a right to counsel in his
interrogation by the officers. Under Montoya he was not protected
by the rule in Jackson and voluntarily waived his right to counsel
under the Sixth Amendment. Montoya binds this panel.
9 10 III.
Wilcher asserts that in exacting his confessions, Mississippi
contravened the procedural protections of Miranda v. Arizona, 384
U.S. 436 (1966). The basis for Wilcher's argument is the repeated
questioning of Wilcher between March 6 and March 11. Wilcher was
given Miranda warnings on March 6 at 7:18 p.m., and signed the
waiver of rights, but declined to make a statement. He asked to
see his parents and was taken to his parents' home. At 9:11 p.m.
Wilcher was again given Miranda warnings and executed a waiver. At
this point, Wilcher gave his first statement. At 10:20 p.m.
Wilcher was given his warnings again, but declined to make a
further statement. On March 9, Wilcher was again advised of his
rights and signed a waiver, but did not make a statement. On March
11, at 12:52 p.m. Wilcher was once more advised of his rights,
waived them, and made his second statement to the officers.
We ask whether Wilcher's "right to cut off questioning was
scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104
(1975). Determining whether this standard was met requires case-
by-case analysis. Charles v. Smith, 894 F.2d 718, 726 (5th Cir.
1990). Our review of the facts surrounding Wilcher's statements
convinces us that the officers acted within the bounds of Miranda
and committed no constitutional violations.
The officers questioning Wilcher gave him his Miranda warnings
before every questioning. Wilcher signed a written waiver of his
right to remain silent on each of these occasions. There is no
indication on this record that Wilcher ever asked that questioning
11 be stopped or that he invoked his right to remain silent. In fact,
at each turn Wilcher waived that right in writing.
Wilcher relies upon two aspects of the circumstances of his
questioning to support his claim. First, he asserts that the
Sheriff's decision to take him at his request to see his parents
"was part of an inducement by the Sheriff and Deputy to obtain
information from Bobby Wilcher." We are not persuaded that
allowing Wilcher to see his parents was so overbearing that it
worked a denial of constitutional rights.
Second, Wilcher seems to rely upon the amount of time elapsing
between questionings. The shortest time between unproductive
interrogations was almost two hours and that was on March 6, not
the "few minutes" we found troublesome in Charles. Wilcher had
been taken to see his parents, but he indicated when first
questioned that he would be willing to talk once he had seen his
parents. This record does not support the conclusion that the
officers "persist[ed] in repeated efforts to wear down [Wilcher's]
resistance and made him change his mind." Kelly v. Lynaugh, 862
F.2d 1126, 1131 (5th Cir. 1988). Compare, Id. (questioning hours
apart with repeated Miranda warnings) with United States v.
Hernandez, 574 F.2d 1362 (5th Cir. 1978) (repeated questioning
within minutes).
IV.
Wilcher asserts that the district court erred in failing to
grant him an evidentiary hearing on his ineffective assistance of
counsel claim. A petitioner is entitled to a federal evidentiary
12 hearing only where there are "disputed facts and the petitioner did
not receive a full and fair hearing in a state court." Wiley v.
Puckett,969 F.2d 86, 98 (5th Cir. 1992). No hearing is required
where the record is complete and the evidence in the record is
sufficient to provide full review of the petitioner's claim.
Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir. 1983).
Before a conviction or sentence will be overturned for
ineffective assistance of counsel, a petitioner must show both that
counsel's performance did not amount to reasonably effective
assistance and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
2064 (1984). To show prejudice, Wilcher must demonstrate that
"there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 2068.
Wilcher levels two challenges to counsel's performance: (1)
that counsel failed to reasonably search for mitigating evidence
and (2) that counsel failed to present any mitigating evidence
concerning Wilcher's background. The district court rejected this
claim in a detailed examination of the record, finding that
Wilcher's trial counsel had "rendered valuable and effective
assistance." We have found no basis for a contrary conclusion and
reject this claim for essentially the same reasons as the federal
district judge.
13 V.
Wilcher asserts that the jury instructions at his capital
sentencing proceedings did not allow a juror to consider a
mitigating circumstance not found by all jurors contrary to Mills
v. Maryland, 108 S.Ct. 1860 (1988) and McKoy v. North Carolina, 110
S.Ct. 1227 (1990).
Mississippi urges that this argument was never made to the
state trial or appellate courts. Mississippi continues that we
need not address procedural bar because in any event, the rule of
Mills and McKoy is a new rule under Teague v. Lane, 109 S.Ct. 1060
(1989), not available to Wilcher in federal habeas. Wilcher
replies that the rule is only an application of Lockett and
Eddings. This court has already decided this issue concluding that
Mills was a new rule barred by Teague. Cordova v. Collins, 953
F.2d 167, 173 (5th Cir. 1992).
Wilcher asserts that Cordova considered only the applicability
of the first exception to Teague, not its second exception for
rules prerequisite to fundamental fairness "implicit in the concept
of ordered liberty." 109 S.Ct. at 1077. We disagree with this
narrow reading of Cordova. It is true that Cordova did not
explicitly treat each Teague exception, but Cordova did implicitly
decide that such a failure to allow consideration by the jury of
all mitigating evidence is not subject to the second Teague
exception.
14 VI.
Wilcher asserts that the jury instructions impermissibly
created a risk that a non-unanimous jury could find an aggravating
circumstance. The jury found that "the capital offense was
committed while the defendant was engaged in the commission of or
an attempt to commit the crime of robbery or kidnapping." Wilcher
argues that by using "robbery or kidnapping" in the disjunctive, a
jury could return a finding of this circumstance with less than
twelve jurors agreeing that he was committing a robbery and less
than twelve agreeing on kidnapping.
The district court found this claim procedurally barred
because it was not objected to at trial or raised on direct appeal.
We have found in previous cases that "the [Mississippi] Supreme
Court regularly applies the contemporaneous objection rule to the
cases before it." Hill v. Black, 887 F.2d 513, 516 (5th Cir.
1989). The record does not reflect any objection in the trial
court to the use of the disjunctive "kidnapping or robbery"
instruction. We are barred from the merits of this claim.
Wilcher asserts that one of the aggravating circumstances
found by the jury in both his trials, that the offense was
"especially heinous, atrocious or cruel," is unconstitutionally
vague as held by the Supreme Court in Clemons v. Mississippi, 494
U.S. 738, 110 S.Ct. 1441 (1990). The district court held that
Wilcher could not rely upon the rule in Clemons on collateral
review because it was a new constitutional rule under Teague v.
15 Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). The district court did
not have the benefit of the Supreme Court's decision in Stringer v.
Black, 112 S.Ct. 1130 (1992) which held that Clemons was not new
under Teague.
Mississippi asserts that Wilcher's Clemons claim is
procedurally barred because it was not raised on direct appeal. On
direct appeal in the Noblin conviction, Wilcher challenged the
sufficiency of the evidence to support an instruction on the
"especially heinous" aggravating circumstance. On direct appeal in
the Moore conviction, Wilcher did not challenge the "especially
heinous" instruction.
Wilcher did challenge the sufficiency of the evidence
supporting the "especially heinous" instruction on collateral
review in the state courts in which both the convictions and
sentences were consolidated. The Mississippi Supreme Court's
dispatch of the claim was brief. This claim was labelled claim F
in the court's opinion. The court held
regarding Issues C,D,E,F,G,H,I,J,K,L and M, this Court holds that all enumerated questions were raised and addressed on the first appeal, or on the second appeal, or on both appeals. Therefore, these issues cannot be relitigated here as the issue is res judicata. Where the issue was not raised on direct appeal, or not raised at the trial court, the claims are procedurally barred and not subject to further review by this Court. 479 So.2d 710, 712 (Miss. 1985)(citations omitted).
Wilcher asserts that the state court did not make a "plain
statement" that review of his claim was procedurally barred under
Harris v. Reed, 489 U.S. 255 (1989). Wilcher asserts that even if
the Mississippi Supreme Court held his Clemons claim procedurally
16 barred, the bar is not an adequate ground to preclude federal
relief because it has not been consistently enforced.
A state procedural ground to bar consideration of an issue is
not adequate unless it is "strictly or regularly followed."
Johnson v. Mississippi, 486 U.S. 578, 587 (1988). We have found a
time window during which the Mississippi Supreme Court did not
strictly or regularly assert a procedural bar to claims not raised
on direct appeal. Wheat v. Thigpen, 793 F.2d 621 (5th Cir. 1986);
Reddix v. Thigpen, 805 F.2d 506, 510 (5th Cir. 1986); Smith v.
Black, 904 F.2d 950, 971 (5th Cir. 1990). The Mississippi Supreme
Court announced this procedural bar in 1983, but we found in Wheat
that in 1985 that court considered a claim in a collateral
proceeding that had not been raised on direct appeal. 793 F.2d at
626, citing Caldwell v. State, 481 So.2d 850 (Miss. 1985).
Wilcher's direct appeals were both decided in 1984. The
Mississippi Supreme Court decided his collateral review on October
30, 1985, before Caldwell was decided in December 1985. We are not
persuaded that Wilcher's Clemons claim is procedurally barred from
federal habeas corpus review.
The instruction on the "especially heinous, atrocious, or
cruel" aggravating circumstance given at Wilcher's sentencing
proceeding is indistinguishable from that found unconstitutional in
Clemons. See also Wiley v. Puckett, 969 F.2d 86 (5th Cir. 1992).
We therefore conclude that one of the aggravating circumstances
used in imposing Wilcher's sentence was unconstitutionally vague.
We vacate the dismissal of Wilcher's petition for habeas corpus and
17 remand to the district court with instructions to issue the writ
unless the State of Mississippi initiates in a reasonable time
proceedings in state courts appropriate under Clemons. In all
other respects, the judgment of the district court dismissing the
petition is affirmed.3
3 See Wiley v. Puckett, 969 F.2d 86 (5th Cir. 1992).