A Federal District judge today blocked the execution of a condemned killer just 10 hours before he was to die by injection for murdering a jeweler in Beaumont, Tex.
The judge, Howell Cobb, issued the stay after meeting with Sam Dunn, an attorney for Elliot Rod Johnson, the convicted killer. Mr. Dunn said his client had received ineffective legal counsel in his trial.
Judge Cobb did not say how long the stay of execution would be in effect.
Mr. Johnson, a 26-year-old resident of Port Arthur, Tex., was convicted in 1983 and sentenced to die in the April 8, 1982, slaying of Joseph Granado, 67, who was shot at close range when Mr. Johnson and three accomplices robbed Mr. Granado's jewelry store.
If Mr. Johnson had been executed, he would have been the 50th person to be put to death in the United States since 1976, when the Supreme Court restored the death penalty.
Elliott Rod Johnson,
Petitioner-Appellant,
v.
O.L. Mccotter, Director,
Texas Department of
Corrections, Jerry
Peterson, Warden, Ellis
Unit Texas Department of
Corrections,
Respondents-Appellees.
No. 86-2404
Federal Circuits, 5th Cir.
July 18, 1986
Appeal from the United States District Court for the Eastern District of Texas.
Before CLARK, Chief Judge, and WILLIAMS and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
This cause is on appeal from an order of the district court denying an initial request for federal habeas corpus relief to Elliott Rod Johnson. Johnson has filed an application in this court for an original writ of habeas corpus, a stay of execution and leave to proceed in forma pauperis. We pretermit a ruling on the application for habeas corpus but grant the stay and certificate of probable cause to appeal.
Johnson was convicted of capital murder for the killing of Joe Angel Granado while in the course of committing or attempting to commit the offense of armed robbery. At the punishment phase of his trial, the death sentence was imposed. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Johnson v. State, 691 S.W.2d 619 (Tex.Crim.App.1984). Petition for writ of certiorari to the Supreme Court of the United States was denied on October 7, 1985. Johnson v. Texas, --- U.S. ---, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985).
On December 3, 1985, Johnson filed an application for stay of execution and writ of habeas corpus in the district court. A stay of execution was granted. Upon review of the record and pleadings, the district court issued a memorandum opinion on May 23, 1986, 635 F.Supp. 685. The opinion carefully dealt with each of Johnson's contentions under the law of the Supreme Court and this Circuit as it existed at that time.
Since that time, however, the Supreme Court has granted a petition for writ of certiorari in McCleskey v. Kemp, --- U.S. ---, 106 S.Ct. 3331, 92 L.Ed.2d 737. The writ was limited to five of the questions presented by the petition, all of which relate to Johnson's contention in the present case that the death penalty in Texas has been discriminatorily imposed against defendants of ethnic minority extraction, poor persons, males, and defendants accused of killing caucasians. The full meaning of the grant of certiorari in McClesky is opaque. However, it is sufficient to create a question as to the continued viability of this court's prior ruling in Evans v. McCotter, 790 F.2d 1232 (5th Cir.1986) and Prejean v. Maggio, 765 F.2d 482 (5th Cir.1985).
That question is one this court should examine to determine whether it is now debatable among jurists of reason that this court could resolve the issue in a different manner. Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 3394, n. 4, 77 L.Ed.2d 1090 (1983).
We need not decide whether we would grant a certificate of probable cause and stay of execution based solely on the Supreme Court's action in McClesky because, in addition, Johnson presented a document to this court which called the court's attention to alleged errors clearly delineated in the trial record with regard to an instruction given by the trial court, the text of which is set out below. Although framed as a challenge that the court's action constituted a constructive amendment of the indictment, Johnson's argument clearly presents the issue dealt with by the Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
Enmund held that the Eight Amendment forbids imposition of the death penalty on one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id. at 797, 102 S.Ct. at 3376.
The trial judge charged the jury in the guilt phase of Johnson's trial that a person commits murder if he intentionally or knowingly causes the death of an individual and that he commits capital murder if he commits murder and he intentionally commits the murder in the course of committing or attempting to commit robbery. But, he went on in that same guilt phase to instruct the jury that:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony actually committed, although having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. (Emphasis supplied)
That instruction, objected to by Johnson at trial, directly contradicts the first two instructions in that it would permit the jury to convict for murder without finding the element of intent. This inconsistency was pointedly developed before the trial jury by the final guilt-phase arguments of counsel for defendant and the State. Whether this contradiction constitutes an Enmund error or was corrected in the penalty portion of the trial through the jury interrogatory requirements of the Texas capital sentencing scheme is unclear to this court and is another ground upon which we grant Johnson a certificate of probable cause to appeal and stay the execution.
The respondents contend that this issue was not raised in the district court and therefore we may not consider it in connection with the present motion. This is not entirely correct. The matter was expressly raised at Johnson's trial, as stated above. It was not mentioned in the opinion of the Texas Court of Criminal Appeals, and was not dealt with by the district court. The application we consider today is more than a request to review the decision of the district court. It independently asserts that Johnson is about to be put to death as a result of a legal proceeding conducted contrary to the Constitution of the United States.
We recognize that comity principles of exhaustion could affect whether the issue will be dealt with at this time, but that remains to be decided if failure to exhaust is urged by the State. The procedural posture of the matter before us requires that we act now to grant a part of the relief sought.
The certificate of probable cause to appeal is granted. O.L. McCotter, Director of the Texas Department of Corrections and Jerry Peterson, Warden, Ellis Unit, Texas Department of Corrections are ordered to stay the execution of Elliott Rod Johnson, now scheduled for dawn on July 23, 1986, pending further order of this court. We pretermit all other issues which may be raised on appeal.
CERTIFICATE OF PROBABLE CAUSE AND STAY OF EXECUTION GRANTED.
Elliott Rod Johnson,
Petitioner-Appellant,
v.
O.L. Mccotter, Director,
Texas Department of
Corrections, Jerry
Peterson, Warden, Ellis
Unit Texas Department of
Corrections,
Respondents-Appellees.
No. 86-2404
Federal Circuits, 5th Cir.
November 12, 1986
Appeal from the United States District Court for the Eastern District of Texas.
Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
CLARK, Chief Judge:
Elliot Rod Johnson appeals to this court from the district court's denial of federal habeas corpus relief. We affirm the denial of relief and dissolve the stay of execution issued by this court.
Johnson was convicted of capital murder for the killing of Joe Angel Granado while in the course of committing or attempting to commit the offense of armed robbery. He was sentenced to death at the punishment phase of the trial. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Johnson v. State, 691 S.W.2d 619 (Tex.Crim.App.1984). Petition for a writ of certiorari to the United States Supreme Court was denied on October 7, 1985. Johnson v. Texas, --- U.S. ----, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985). On December 3, 1985, Johnson filed an application for stay of execution and writ of habeas corpus in the district court. A stay of execution was granted. On May 23, 1986, the district court entered a final order and issued a memorandum opinion denying Johnson's application for habeas relief and dissolving the stay of execution. Johnson v. McCotter, 635 F.Supp. 685 (E.D.Tex.)
Johnson then filed in this court an application for an original writ of habeas corpus, a stay of execution, and leave to proceed in forma pauperis. We pretermitted a ruling on his application, but granted the stay and a certificate of probable cause to appeal. Johnson v. McCotter, 794 F.2d 1011 (5th Cir.1986).
Johnson appeals on two grounds. First, he contends that the death penalty is discriminatorily imposed in Texas against black defendants convicted of killing a person of a different race. Second, Johnson argues that the trial court's instructions in the guilt and sentencing phases of the trial allowed the jury to sentence him to death without first finding that Johnson himself killed, attempted to kill, or intended to kill anyone.
This court granted Johnson a certificate of probable cause to appeal and stay of execution in part because we were uncertain about the effect of the Supreme Court's grant of certiorari in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc), cert. granted, --- U.S. ----, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986). McCleskey raises the issue of discriminatory imposition of the death penalty on blacks convicted of killing whites. Since that time, however, this court has determined that the grant of certiorari in McCleskey is not a sufficient ground to grant a defendant a stay of execution. Wicker v. McCotter, 798 F.2d 155 (5th Cir.1986). But see Watson v. Blackburn, 798 F.2d 872, 872 (5th Cir.1986) (Johnson, J., dissenting). We are bound by the law of our Circuit. We deny Johnson's application for a stay of execution pending the Supreme Court's decision in McCleskey.
Johnson's second contention presents the issue dealt with by the Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Enmund held that the Eighth Amendment forbids imposition of a death sentence on one who "aids and abets a felony in the course of which a murder is committed by others, but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id. at 797, 102 S.Ct. at 3376.
During the guilt phase of Johnson's trial, the trial judge instructed the jury as follows:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony actually committed, although having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the conspiracy.
Johnson objected to this instruction at trial.
This court granted Johnson a certificate of probable cause to appeal the issue of whether this instruction constitutes an Enmund error or whether it was corrected in the sentencing phase of the trial. Johnson, 794 F.2d at 1012.
The state urges that this Enmund issue was not presented to the district court and is raised for the first time on appeal. As we noted in our previous consideration of this claim, Johnson, 794 F.2d at 1012-13, this contention is not entirely correct since Johnson did in fact object at trial. It is true that neither the United States district court nor the Texas Court of Criminal Appeals dealt with the Enmund issue. Because the circuit has recently and definitively dealt with this issue, we pretermit any determination of whether Johnson has fully exhausted this argument or has properly preserved the issue for appeal and reach the merits.
This
court has held that
Enmund prohibits "the
execution of a person
for the uncontemplated
... act of an accomplice
in the course of
committing a non-capital
felony...." Skillern v.
Estelle, 720 F.2d 839,
846 (5th Cir.1983), cert.
denied,
During the punishment phase of Johnson's trial, the court submitted to the jury the following special issue:
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....
The jury answered this issue in the affirmative.
The issue Johnson raises is controlled by our decision in Skillern, 720 F.2d at 848. Skillern involved the identical special issue at the sentencing phase of a Texas capital murder trial, and this court found no Enmund violation. We deny Johnson's application for relief on this ground.
The judgment appealed from is affirmed. The stay of execution previously issued by this court is dissolved. The application for a further stay of execution pending the Supreme Court's decision in McCleskey is denied.
AFFIRMED, Previous Stay Dissolved, Further Stay DENIED.