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James DEMOUCHETTE

 
 
 
 
 

 

 

 

 


A.K.A.: "Doom"
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 3
Date of murder: October 17, 1976 / August 1983
Date of arrest: October 18, 1976 (surrenders)
Date of birth: May 20, 1955
Victims profile: Scott Sorrell, 19, and Robert White, 20 (Pizza Hut clerks) / Johnny B. Swift (inmate)
Method of murder: Shooting (.380 caliber revolver) / Stabbing with homemade knife
Location: Harris County, Texas, USA
Status: Executed by lethal injection in Texas on September 22, 1992
 
 
 
 
 
 

 

Last Statement:
This offender declined to make a last statement.

 

James Demouchette
Age: 37 (21)
Executed: Sept. 22, 1992
Education level: 9th grade

Demouchette and his brother entered an Inwood-area Pizza Hut on Oct. 17, 1976. They fatally shot Scott Sorrell, 19, and Robert White, 20, and injured the manager before taking stereo equipment and a sack of change.

Demouchette was violent behind bars, and once stabbed another inmate to death. His brother is serving a life sentence.

 
 

Texas Executes 'Meanest' Killer

The New York Times

September 23, 1992

An inmate who stabbed a fellow prisoner to death and wounded three guards during his 15 years on death row was executed by injection early today for killing two men in a 1976 holdup.

The inmate, James Demouchette, was executed after the United States Supreme Court twice declined to intervene. The 37-year-old inmate had no final statement, but his lawyers had argued that psychological tests describing him as a sociopath should have been introduced at his trial.

Mr. Demouchette and his brother, Christopher, now 34, were convicted in the shooting deaths of an assistant manager and another man at a Houston pizza restaurant on Oct. 17, 1976.

A third shooting victim, the manager, Geoff Hambrick, slumped over a table and pretended to be dead. He survived to testify against the Demouchettes. The younger Mr. Demouchette was sentenced to life in prison.

Mr. Hambrick testified that the brothers shot him, Scott Sorrell, 19, who was Mr. Hambrick's assistant manager, and Robert White, 20, in the head with a revolver before ransacking the back office, taking a sack of change and some stereo equipment.

Mr. Demouchette, who called himself Doom, was described in turn by prison officials as the meanest man on death row.

He was convicted of fatally stabbing a fellow death row inmate in 1983 and was sentenced to 15 years. He also beat and raped another inmate, stabbed at least two others, twice set fire to his cell and stabbed two guards searching his cell, prison records show.

Mr. Demouchette became the 10th person to be die by lethal injection in Texas this year. He also became the 52d Texas inmate and the 182d inmate in the nation to be executed since 1976, when the Supreme Court allowed states to resume the use of the death penalty.

 
 

972 F.2d 651

James Demouchette, Petitioner-Appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 92-2077

Federal Circuits, 5th Cir.

September 21, 1992

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, HIGGINBOTHAM and DUHE, Circuit Judges.

POLITZ, Chief Judge:

James Demouchette, whose execution has been set by the Texas authorities for September 22, 1992, seeks federal habeas relief and a stay of execution. The district court denied the habeas request, denied a certificate of probable cause and recalled its previously issued stay of execution. In his motions for CPC and for a stay of execution Demouchette urges error under Penry v. Lynaugh.1 Concluding that the disposition of this matter is directed by our recent en banc decision in Graham v. Collins,2 we deny both the motion for CPC and the motion for stay of execution.

Background

As detailed by the Texas Court of Criminal Appeals,3 Demouchette and his brother Chris entered a Pizza Hut restaurant in Houston, Texas around midnight of October 17, 1976, shortly before closing. Manager Geoffrey Hambrick locked up and the Demouchettes joined Hambrick, Scott Sorrell, the assistant manager and an acquaintance of one of the brothers, and Chuck White, a friend of Sorrell's, at a booth and table.

After a few minutes of idle conversation Hambrick, hearing White say, "I'd think twice before I pulled that trigger," turned to see Demouchette shoot White in the head with a large caliber revolver. Demouchette then shot Hambrick. The bullet struck him on the side of the head. Hambrick slumped over and pretended to be dead; he retained consciousness. A third shot rang out and Hambrick heard what he presumed to be Sorrell falling.

The Demouchettes ransacked the back room. Returning to the dining room where Sorrell was making gurgling sounds, Demouchette told Chris, "Get the keys." There was another shot and Sorrell's gurgling ceased. The keys were taken from Hambrick and the Demouchettes left. Hambrick called the police.

Sorrell died at the scene; White died shortly thereafter. Hambrick recovered from his wounds. The cash register had been emptied and stereo equipment was missing.

A jury convicted Demouchette of the capital murder of Sorrell under Texas Penal Code 19.03(a)(2). During the penalty phase of his trial, Demouchette presented expert testimony that he suffered from antisocial personality disorder, a chronic abnormality marked by impulsivity, an inability to learn from experience, and callousness towards others. Although both mental health experts called by Demouchette testified that his acts of violence resulted from impulse rather than plan, the jury answered the first special issue, whether Demouchette had killed deliberately, in the affirmative and likewise answered the second special issue concerning future dangerousness. In accordance with the Texas statute, the judge sentenced Demouchette to death.4 The Texas Court of Criminal Appeals affirmed the conviction and sentence.5 5]

Demouchette invoked 28 U.S.C. 2254 and sought habeas relief. The state expressly waived exhaustion of collateral state remedies. The district court conducted an evidentiary hearing at which Demouchette's trial attorney testified about mitigating evidence which he decided not to present because of the structure of the Texas death penalty statute. The district court denied relief, denied a certificate of probable cause, and vacated an earlier granted stay of execution. Demouchette timely sought CPC and a stay of execution.

Analysis

When a district court denies a certificate of probable cause,

we lack jurisdiction to decide the appeal unless we first decide to grant one. We may issue a certificate of probable cause only when the petitioner makes a substantial showing of the denial of a federal right. To make a substantial showing, the petitioner must demonstrate that the issues are debatable among jurists of reason.6

The issues raised by Demouchette are no longer debatable before this court; they are foreclosed by circuit precedent.

Demouchette's principal argument is that the Texas death penalty statute was unconstitutional as applied to him because the jury was unable, without a special instruction, to give full mitigating effect to his evidence of antisocial personality disorder. Invoking Penry, Demouchette contends that his personality disorder had relevance to his moral culpability beyond his propensity to act without deliberation. He further notes that the disorder functioned only as an aggravating factor with respect to the probability of recidivism. Under these circumstances, Demouchette maintains, Penry requires the giving of a special instruction, which was denied in his case.

Applying Penry's teachings in Graham, sitting en banc we stated:

Penry clearly stands for the proposition that merely because the mitigating evidence has any relevance to a negative answer to one of the special issues does not necessarily suffice in all cases to sustain application of the Texas statute. Penry's evidence has some such relevance to the first issue. The more difficult question is whether the Texas statute can operate as written in any case where the mitigating evidence, though all clearly relevant to support a negative answer to one or more of the issues, nevertheless also has any mitigating relevance whatever beyond the scope of the special issues.

Penry can fairly be read as precluding use of the Texas statutory scheme in any such situation. But, Penry can also fairly be read as addressing only a situation where some major mitigating thrust of the evidence is substantially beyond the scope of any of the issues. That, indeed, was the case in Penry, where as to the third issue the mitigating evidence was all essentially irrelevant, as to the second issue it was only affirmatively harmful to the defense, and as to the first issue its favorable relevance was essentially minor but its "major thrust" was beyond the scope of the issue.7

In Graham we adopted the latter reading of Penry, holding that a special instruction was required only if a "major mitigating thrust"8 of the evidence was substantially beyond the scope of all the special issues.

Here, the jury was able to give mitigating effect to Demouchette's personality disorder evidence in deciding whether he acted deliberately. A "major thrust" of his expert testimony was that an antisocial personality acts on impulse rather than deliberation. Although a reasonable juror might have found that this evidence had independent mitigating value in reducing moral culpability, we cannot say with assurance that a major mitigating thrust of the evidence was substantially beyond the reach of the deliberateness issue. Accordingly, Demouchette's argument that he was entitled to a special jury instruction is foreclosed by Graham.

Demouchette further contends that the operation of the Texas death penalty scheme so hampered his trial attorneys in developing a mitigation defense as to deprive him of effective assistance of counsel. To the extent this is a claim of constructive denial of sixth amendment rights, we rejected this argument in May v. Collins,9 explaining that a rule allowing such ineffective assistance claims would be impossible to cabin because tactical decisions concerning the type of evidence to present in sentencing proceedings "are always channelled by the requirements of the statute under which the state proceeds."10 To the extent the argument would fault trial counsel's decision to forego developing mitigating evidence that might also be hurtful, it offers no more than the eighth amendment contention which likewise is foreclosed.

For these reasons, the application for a certificate of probable cause and the motion for stay of execution are DENIED.

*****

1 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)

2 950 F.2d 1009 (5th Cir.) (en banc ), cert. granted, --- U.S. ----, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992)

3 Demouchette v. State, 731 S.W.2d 75 (Tex.Cr.App.1986), cert. denied, 482 U.S. 920 , 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987)

4 Under Tex.Code Crim.Proc.Ann. Art. 37.071(b) (Vernon 1981), since amended, the jury must answer special issues: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury unanimously answers "yes" to each issue submitted, the court must sentence the defendant to death; otherwise the sentence is life imprisonment. The third special issue was not relevant and was not submitted

5 Demouchette v. State, supra

6 Cordova v. Collins, 953 F.2d 167, 169 (5th Cir.) (internal quotations and citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992)

7 950 F.2d at 1026-27 (emphasis in original)

8 Id., 950 F.2d at 1027

9 948 F.2d 162 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992)

10 May, 948 F.2d at 167; see also Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 600 (1992)

 

 

 
 
 
 
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