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Raymond G. RILES





Classification: Murderer
Characteristics: Dispute - Robbery
Number of victims: 1
Date of murder: December 11, 1974
Date of birth: June 1, 1950
Victim profile: John Thomas Henry, 31 (used car dealer)
Method of murder: Shooting
Location: Harris County, Texas, USA
Status: Sentenced to death on February 4, 1976


Is 30 Years Too Long On Texas Death Row?

By Jason Johnston -

August 13, 2008

Note: The following story is a verbatim transcript of an Investigators story that aired on Tuesday, Aug. 12, 2008, on KPRC Local 2 at 10 p.m.

Tonight, Local 2 Investigates digs into the case of an inmate from Houston who has been on death row for more than 30 years. So why hasn't Raymond Riles been executed?

When you read and hear his first TV interview in more than 20 years, you may understand why.

His case has sparked a debate of what to do with inmates spending decades waiting for an execution. Local 2 investigative reporter Amy Davis uncovers why Riles' case could change the future of Texas' death row.

"They told me they were going to kill me unless I stopped preaching my mystic gospel," Riles told us during an interview from death row at the Polunsky Unit in Livingston. "God is the greatest and I didn't come to die on death row."

As Riles speaks, you're almost able to read his mind -- by not understanding it.

"They're trying to silence me because I know about the satanic secret societies of the TDC shadow government e-system," said Riles.

His mind appears mixed-up, full of delusions and paranoia. This is the latest chapter of Riles' story -- 33 years of crime and punishment.

Riles committed his crime back in 1974. He was convicted of killing Houston used-car salesman John Henry during a 1974 robbery. A Harris County jury sentenced Riles to death.

But 33 years later, Riles still waits on death row with no execution date and no plans for one.

"It's because he's incompetent to be executed," explained Roe Wilson, an assistant district attorney for Harris County.

Wilson handles death row appeals and says Riles case is that simple. Mental health experts have ruled Riles doesn't understand why his execution is imminent, or understand exactly why he's being executed. That makes him mentally incompetent, according to the U.S. Supreme Court.

"If you don't meet the standard, then you cannot be legally executed," said Wilson.

During our interview, Riles told us he believes God committed his crime, thinks he was chosen to release men from death row, and believes a lethal injection would not kill him.

Riles also blamed God for his prison suicide attempt in 1985. Riles set himself on fire in his cell.

"God did that," said Riles. "God consumed me in fire."

In 1986, Riles was inches from the death chamber in Huntsville and just minutes from execution. That's when a federal court issued a last-minute stay. It was the fourth time the state scheduled Riles' execution. A new date hasn't been scheduled for the past 22 years.

"As long as he's living, I'm still living," said Helen Riles, Raymond Riles' sister. "We're still living."

Helen Riles spoke to us from her Houston home. She's calls her brother's three decades on death row "bittersweet."

While Raymond Riles hasn't been executed, Helen Riles is fighting to get her brother off of death row and into a mental health facility instead.

"I don't think he could ever come all the way back," said Helen Riles. "I really don't. But he would able to feel more comfortable and get more rehabilitation."

And that's the debate. If an inmate can't be executed, should he or she remain on death row?

A new call is coming from a nationwide association of attorneys, death penalty opponents, and a U.S. group of mental health experts to change the way mentally ill inmates are treated on death row.

They all say a life sentence is more appropriate.

"It makes no sense for the state to keep someone on death row under severe conditions, when he's been recognized as severely ill," said Kristin Houle', with the Texas Coalition to Abolish the Death Penalty in Austin.

On death row, all inmates spend 23 hours a day in their cell.

Houle' calls that cruel and unusual punishment for the mentally ill, claiming it gives inmates little access to psychiatric care.

The state disagrees.

"That really is not a factor in this case," said Wilson. "What the factor is, is that (Riles) was competent when he was tried and given a legal sentence. His confinement is still legal and he simply has a condition right now that makes him not eligible for execution. But that could change."

That's right. Wilson says Riles is still periodically tested by doctors. His mental state and his future could always change.

Right now, Texas law doesn't allow a death sentence to be replaced by a life sentence.

Wilson argues Riles' punishment stands, no matter what his mental state is now. Many call that justice for the victims.

So, at age 58, Raymond Riles remains on death row -- 33 years and counting. His family and activists say they'll continue to work to change the law that keeps him there.

"I'm not just going to let him sit there and not fight for him," Helen Riles said.

Courts and doctors have ruled five other death row inmates from Harris County are also mentally incompetent to be executed. Any change in Riles' case or state law could have a direct effect on many Texas inmates.

However, those inmates are all tested periodically. If they are ruled competent at any time, an execution date can be scheduled.

Update On Wednesday, Aug. 13

Since our story aired, we were contacted by murder victim John Henry's son. Due to the more than 30 years since the crime was committed, Local 2 Investigates was unable to locate any family member of Henry.

His son's e-mail is below.

"As the only child of John Henry, I have grown accustomed to Houston news channels running Raymond Riles' story at least once every decade since his crime. I grow more disgusted with our penal and judicial system every time his story airs. In a cowardly action, Riles shot my father in the back of the head and left him to die. This never would have been possible, except that our court system paroled him early from a prior conviction. Riles is nothing more than a career criminal and yet HIS story is the one that news agencies deem worthy of reporting.

"Your stories only breed sympathy for people who have participated in horrendous crimes. Whether Riles is mentally insane or not, he deserves to (and should) die for his crimes. Instead of Riles' mental state, why don't you report on the irony of Riles' story. The fact that Riles murdered my father, and my tax dollars are keeping him alive is nothing short of ironic.

"Helen Riles made the comment, 'I don't think he could ever come all the way back, I really don't. But he would able to feel more comfortable and get more rehabilitation.' Please let Mrs. Riles know that there is nothing that will ever bring my father back, and since Texas will not execute her brother, his 'discomfort' on death row is my only peace."


799 F.2d 947

Raymond G. Riles, Petitioner-appellant,
O.l. Mccotter, Director, Texas Department of Corrections, respondent-appellee

United States Court of Appeals, Fifth Circuit.

Sept. 10, 1986

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

Before RUBIN, JOHNSON and JONES, Circuit Judges.


The petitioner, Raymond G. Riles, is scheduled to be executed on September 17, 1986 for a murder he committed in 1974. Having had his motions for a certificate of probable cause to appeal and stay of execution denied by the district court, Riles moves this Court for the same relief. Having heard oral argument on the motions, the Court finds that there has been no substantial showing by Riles of a denial of a federal right, and his motion for a certificate of probable cause is therefore DENIED.

On December 11, 1974, Riles robbed and shot thirty-one year-old John Thomas Henry.1 Two days later, Henry died and Riles was charged with his murder. Riles was subsequently tried before a jury, convicted of capital murder, and sentenced to death. Upon appeal, the conviction was reversed and the case remanded for a new trial. Riles v. State, 557 S.W.2d 95, 99 (Tex.Crim.App.1977). The second trial also resulted in Riles's conviction for capital murder; punishment again was death. Appeal of the second conviction, however, was not met with success. Riles v. State, 595 S.W.2d 858 (Tex.Crim.App.1980) (en banc). Thereafter, Riles sought indirect relief via a writ of habeas corpus in the state trial court and Texas Court of Criminal Appeals, but both applications were denied.

Having exhausted his state remedies, Riles applied for a writ of habeas corpus in the United States District Court for the Southern District of Texas, and its denial precipitates this appeal. In support of his current motions for a certificate of probable cause and a stay of execution, Riles asserts several grounds of error.

Before Riles can prosecute his appeal in this court, he must obtain a certificate of probable cause. Fed.R.App.P. 22(b). Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). The district court has already denied Riles a certificate, and unless he is able to establish a "substantial showing of the denial of [a] federal right," we will also deny his motion for the certificate. Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394 (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)). To make his showing, Riles "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980) (emphasis in original)).


Riles's first complaint concerns the state trial court's decision to exclude for cause two veniremembers because of their views on capital punishment. The first veniremember excused by the court admitted that his deliberations would be influenced by a possible death sentence, and that given a choice, he would choose a sentence other than death.2

The other excluded veniremember, Ms. Simpson, unequivocally stated that she could not impose capital punishment for a murder that occurred during the course of an armed robbery. In fact, anything short of a brutal "butcher" of a victim would result in her answering the special verdicts in such a way so as to defeat a penalty of death.3

Riles contends that the standards for exclusion of prospective jurors announced in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) should be applied over those set out in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This argument is unpersuasive, because the Supreme Court in Witt merely clarified Witherspoon and reaffirmed Adams as the proper standard to use when considering the exclusion of a potential juror. Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.1986), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986). There is no inconsistency among the tests. Adams prohibits a veniremember from being challenged for cause due to his views on the death penalty "unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams, 448 U.S. at 45, 100 S.Ct. at 2526. Here, both veniremembers unequivocally stated that they could not perform their duties impartially in accordance with the court's instructions. Given these veniremembers' principles, they would have been unable to satisfactorily perform their duties as jurors.

Further support for this conclusion arises from the deference and presumption of correctness afforded to a state court's factfindings concerning exclusion of potential jurors. Wainwright v. Witt, 469 U.S. at 426-30, 105 S.Ct. at 853-55. Reviewing the two veniremembers' testimony and the state court's decision to exclude these individuals from the jury in this light, it is evident that Riles has failed to make a "substantial showing of the denial of [a] federal right" with respect to this particular issue.4


Riles complains that the voir dire examination was conducted in such a manner that the State's burden of proof on the punishment issue was significantly reduced. Specifically, Riles alleges that the trial court stressed the proof needed to support the aggravating circumstances and disregarded the effect of possible mitigating evidence. By so doing, he contends, the court committed a number of the jurors in advance to return affirmative answers on the two punishment issues.

Because Riles failed to object to the state trial court's lengthy and comprehensive voir dire, and because Riles's counsel was given an opportunity to conduct his own examination of the jurors (thus allowing him to cure any prejudice created by the court), the district court, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), denied federal habeas review on this issue.

We agree with the district court's decision. In Texas, a party must voice his objection to the conduct he considers erroneous at the time it occurs. "Failure to object waives error, if any, that is presented." E.g. Green v. State, 682 S.W.2d 271, 275 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). By failing to object timely during voir dire to the instructions or questions he deemed inappropriate, Riles is barred from federal habeas review on this issue "absent a showing of 'cause' and 'prejudice.' ". Sykes, 433 U.S. at 87, 97 S.Ct. at 2506.

"[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). Other than Riles's claim of ineffective assistance of counsel, which is discussed in Section VII, infra, of this opinion, there is nothing in the record which would establish cause for the default. Riles does not even allege that any external factor hindered or prevented him from complying with the contemporaneous objection rule.

Application of the procedural default rule is particularly appropriate to an alleged error in voir dire because, if an error is then made, it may readily be corrected before a jury is empanelled. Moreover, no objection is made to the court's instructions to the jury in this regard, and the jury's oath requires them to return a verdict in accordance with those instructions, not the preliminary examination. If despite the procedural default bar to Riles's voir dire challenge, we reached the issue, we would find that the examination conducted by the state trial court did not deprive Riles of any constitutional right. As part of the voir dire examination, courts in Texas are required by statute to "propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion." Tex.Code Crim.Proc.Ann. art. 35.17, Sec. 2 (Vernon Supp.1986). When reviewed as a whole, the record of the voir dire examination reveals the court's sincere attempts to comply with this statute; the court explained the standards involved in the case, the burdens of proof on the parties, and the insanity defense raised by Riles.

Instead of looking at the record as a whole, however, Riles focuses on the court's attempts to explain the two issues submitted during the penalty phase of trial.5 With respect to these two issues, however, the court did nothing more than explain the standards and provide the jury with guidelines to use in their deliberations. Riles has demonstrated nothing which would indicate the court abused its discretion in its examination. See Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1984); Weaver v. State, 476 S.W.2d 326 (Tex.Crim.App.1972); Cook v. State, 398 S.W.2d 284 (Tex.Crim.App.1965), cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966).6

Because Riles failed to raise his challenge to the court's voir dire examination in a timely manner, it is waived. Even had he not waived this argument, he has made no substantial showing of the denial of a federal right as a result of the state trial court's voir dire examination.


Riles unsuccessfully raised the insanity defense at trial. Riles now argues that even if the psychiatric evidence presented at trial was insufficient to convince the jury he was insane when he murdered Henry, it may have been sufficient to show he was mentally ill. Mental illness, according to Riles, is a mitigating factor which would have "diminished" his criminal responsibility in the penalty phase of the trial. Even though he did not request an instruction on this mitigating factor during the penalty phase, it is Riles's belief that the trial court erred by failing to bring it to the jury's attention.7

A defendant will be "barred from raising his claim about the absence of a mitigating circumstance instruction" if there is no request for such an instruction at trial or if a contemporaneous objection to the court's charge on this ground is not made. O'Bryan v. Estelle, 714 F.2d 365, 385 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). See also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Tex.Code Crim.Proc.Ann. arts. 36.14, 36.15 (Vernon Supp.1986). Under Sykes, Riles was required to establish "cause" for the procedural default, and he has not done this. Id. at 90-91, 97 S.Ct. at 2508.

Riles also asserts a constitutional challenge to Article 37.071, stating that, as applied to his case, it prevented the jury from considering his mental illness as a mitigating factor. In a case factually similar to this one, this Court has found article 37.071 in compliance with the Eighth and Fourteenth Amendments. Granviel v. Estelle, 655 F.2d 673, 675 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982). The Texas statute has previously withstood constitutional attack in the Supreme Court. Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976). In fact, the Supreme Court held that "[b]y authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function." Id.

The trial court never prevented Riles from re-urging evidence of mental illness to mitigate the penalty. Indeed, the trial court instructed the jury that they could consider all evidence submitted during both phases of the trial when answering the penalty issues. Record at 140. Moreover, there is nothing in the record which indicates the jury failed or refused to consider any of the considerable evidence in the guilt phase record with respect to mental illness. Failure of the trial court to give a specific instruction on mental illness did not rise to a constitutional error.

To support his insanity defense, Riles offered expert testimony of several experts who diagnosed a history of psychosis and schizophrenia and purported to demonstrate that Riles was insane when he committed the murder in 1974. In rebuttal, the state's experts offered an "alternate diagnosis" for Riles's behavior--that he was a sociopath, one suffering from a personality disorder, not insanity.

Riles first argues that the rights guaranteed him under the Fifth and Sixth Amendments were abridged under the standards set forth in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) because: (1) the state's medical experts interviewed him absent counsel; (2) he was not advised of his right to remain silent; and (3) he was not informed that the results of the interviews could be used against him.

The district court noted Riles's failure to object at trial to the state's expert testimony and disposed of this complaint by applying the procedural default doctrine. Wainwright v. Sykes, supra. It has been brought to our attention, however, that in some post-Smith cases, the Texas courts have waived the procedural default theory. Ex Parte Chambers, 688 S.W.2d 483, 484 (Tex.Crim.App.1985), cert. denied, --- U.S. ----, 106 S.Ct. 181, 88 L.Ed.2d 150 (1985). As will be discussed below, Riles's claim does not fit the Smith analysis. Moreover, Riles has not shown "cause" for this default which would overcome his procedural default. For these reasons, we approve the district court's decision to dispose of this claim under a procedural default theory.

In any event, this case is distinguishable from Smith, where the prosecution introduced harmful psychiatric evidence during the punishment phase of the trial and the defendant had no clue, because he had never raised a defense of insanity, that such evidence would be introduced. The damaging testimony was based on an unrequested court-ordered psychiatric interview of the defendant conducted without the benefit of Miranda8 warnings. Because advance notice as to the purpose of the examination was not provided to the defendant's counsel, the Court in Smith held that the defendant was also denied assistance of counsel in making a decision of whether to submit to the examination. Here, the record reflects that Riles, represented by counsel, requested most (if not all) of the psychiatric examinations, the results of which he now finds objectionable. Moreover, unlike the defendant in Smith, Riles raised the insanity defense; the state, therefore, had every right to rebut that defense. By pursuing this avenue of defense, and by offering psychiatric evidence to support this defense, Riles opened the door to the state's evidence and waived his Fifth Amendment privilege against self-incrimination. Vardas v. Estelle, 715 F.2d 206, 208 (5th Cir.1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984). Neither was Riles's Sixth Amendment right to assistance of counsel abridged. Finally, a defendant has "no constitutional right to have his attorney present during the psychiatric examination." Vardas, 715 F.2d at 209 (citing United States v. Cohen, 530 F.2d 43, 48 (5th Cir.1976), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976) (emphasis added)).

Riles's second objection to the state's psychiatric evidence involves the state's expert testimony given during the guilt/innocence phase of the trial. The state's experts described the characteristics of a sociopath and one expert testified that "this man is an extremely dangerous person who is a threat to society." Riles maintains that this testimony contributed to the jury's finding in the penalty phase that he "would constitute a continuing threat to society.' " Tex.Code Crim.Proc.Ann. art. 37.071(b)(2) (Vernon Supp.1986). We observe however, that a state is free to offer an "alternative diagnosis" for a defendant's behavior when an insanity defense is raised. Vardas, 715 F.2d at 210. When offering this alternate diagnosis to explain a defendant's behavior, the state may demonstrate that the defendant's behavior conforms with the alternate diagnosis by offering a description of the disorder. Id.

Riles finally argues that he was denied effective assistance of counsel during all stages of his trial (including voir dire examination, the guilt/innocence phase, and the punishment phase) and on appeal. Specifically, Riles maintains his counsel was ineffective because his attorneys neglected to:

(1) Raise on direct appeal the trial court's improper exclusion of veniremembers. (See section III of this opinion, supra).

(2) Object to the trial court's improper and prejudicial voir dire examination during the examination and on appeal. (See section IV of this opinion, supra).

(3) Object to the introduction of the state's psychiatric evidence which was admitted in violation of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). (See section VI of this opinion, supra).

All of these alleged omissions on the part of Riles's counsel involve procedural defaults either at trial or on appeal. As noted earlier in this opinion, habeas relief will be denied in a situation involving procedural default unless the defendant can demonstrate good cause for the default and actual resulting prejudice. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). In Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court recently held that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Id. at ----, 106 S.Ct. at 2645-46. If, however, a defendant's counsel is constitutionally ineffective, such will constitute cause for a procedural default. Id. As a result, we must determine whether the performance of Riles's attorneys was constitutionally defective.

The two-part constitutional standard governing effectiveness of counsel was announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland places on the defendant the burden of showing that counsel's performance was seriously deficient and such deficiency was so prejudicial as to deprive the defendant of a reliable result at trial.

Having found each of the contentions asserted by Riles to be meritless irrespective of the procedural default, we cannot, consistently therewith, find incompetence of Riles's attorneys.

Similarly we find no error in the district court's denying Riles an evidentiary hearing on his ineffective assistance of counsel claim. A hearing is not required if it "would not produce further evidence in support of specific, nonconclusory allegations." Celestine v. Blackburn, 750 F.2d 353, 358 (5th Cir.1984). Riles has not demonstrated how a hearing would have aided either the district court or this Court.

We find no showing of a denial of a federal right which would entitle Riles to a certificate of probable cause to appeal; therefore, the petition for probable cause is DENIED. Accordingly, the motion for a stay of execution is DENIED, and this appeal is DISMISSED.

ALVIN B. RUBIN, Circuit Judge, concurring:

I concur in the opinion because, as a judge of an inferior court, I am bound by the decisions of the Supreme Court, and, as a judge of this court, I am bound by the law of this circuit. If I were free to do so, I would order an evidentiary hearing on the effectiveness of counsel. To me, a sufficient showing has been made that trial counsel did not provide this accused with the quality of defense essential to adequate representation in any serious felony case, and particularly in a capital case.

It is probably true that any error made by court-appointed counsel in the guilt-innocence phase of the trial was harmless in the sense that it does not appear likely to have affected the result. The briefs and argument of current counsel, however, together with the record, indicate that, if Riles' trial counsel had been able, the jury might not have imposed the death penalty.

Precedent requires me to agree that this is not enough to justify a certificate of probable cause. The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel. It requires representation only by a lawyer who is not ineffective under the standard set by Strickland v. Washington.1 Proof that the lawyer was ineffective requires proof not only that the lawyer bungled but also that his errors likely affected the result. Ineffectiveness is not measured against the standards set by good lawyers but by the average--"reasonableness under prevailing professional norms"--and "judicial scrutiny of counsel's performance must be highly differential."2 Consequently, accused persons who are represented by "not-legally-ineffective" lawyers may be condemned to die when the same accused, if represented by effective counsel, would receive at least the clemency of a life sentence.

JOHNSON, Circuit Judge: I concur in the opinion and in the concurrence of Circuit Judge RUBIN as well.



The facts leading up to and surrounding the murder are set out in Riles v. State, 557 S.W.2d 95, 96-97 (Tex.Crim.App.1977)


The colloquy between the court and veniremember, Mr. Nix, was as follows:

COURT: Let me ask it this way: Would the fact that you know that the death penalty is a possibility in the event of a finding of guilty of capital murder, would the fact that you now know that that is a possibility, would that affect your deliberation on any issue of fact throughout the case? Do you understand my question?

MR. NIX: I understand it, but it is not that easy to answer.

COURT: No, I know it is not easy. But it is just like this: On the one hand, you tell me that you have this religious scruple against the infliction of death as punishment for crime. So, what I am asking you is, if that is the case, would the fact that the death penalty is a possibility affect the way you would answer any question involved in this lawsuit, up to and including, let's say, on the guilt or innocence--might you find it murder instead of capital murder so you wouldn't be faced with the death penalty?

MR. NIX: I am afraid I would have to say it would influence my way of thinking.

COURT: And that is true regardless of the nature and character of the case? Regardless of how bad the case is?

MR. NIX: Yes, I think so. It would still be in my mind, that it, that it would be to me, I would think I am doing wrong if I commit the guy.

COURT: We accept your feelings. Nobody is arguing with you. The only reason I am asking it in so many different ways is I must be absolutely sure that under no circumstances could you participate in a death penalty. If you had the choice, you would choose something less than death?

MR. NIX: I think I would have to say yes.


The relevant voir dire of Ms. Simpson was:

COURT: If both of those questions are answered yes by the jury, that is a mandate to me to give him the death penalty. If either of those questions is answered no, this is a mandate to me to give him life in the penitentiary. Since you have expressed your opposition to the death penalty as a punishment, I need to ask you this: If the State had proven beyond a reasonable doubt that each of these questions that I have just cited to you should be answered yes, could you and would you answer them yes, knowing that it would result in the death penalty?

A. No.

COURT: You would be more than likely to answer one of them no, so it would be life imprisonment as opposed to the death penalty; is that correct statement?

A. Yes, sir.

COURT: And this is, I assume, true regardless of the crime that might be involved? In other words, a bloody and brutal crime is involved, would your answer still be the same?

A. No, I think I could change my mind then.

COURT: All right. Then you are not opposed to the death penalty?

A. Well, it depends, then, I guess on the facts.

COURT: Nothing unusual about that. So, if the facts were sufficient in your mind, you could vote for the death penalty. If, having heard the facts, you felt it was a proper punishment for the crime, you could vote for the death penalty; is that correct or not?

A. I think it depends on the type of crime.

A. Yes, exactly what the defendant did.

COURT: Well, how about a murder committed during the course of a robbery? That is exactly what we are talking about.

A. If he cut her up or something of that nature.

COURT: You are talking about butchering here?

A. Yes, sir.

COURT: And are you saying that in a case of--let's put it where it is a him. All right you are saying that in a case of murder during the course of a robbery, that unless somebody is butchered up, you could not find the death penalty; is that what you are telling me?

A. Yes.

COURT: Regardless of any other facts?

A. Yes.

COURT: Let me ask it another way. Not that you know the death penalty is a possibility and that mandatory life or death is an absolute proposition in the event of a finding of guilty of capital murder, would that fact affect your deliberations on any issue of fact during the course of the trial?

A. I think it would.


The State argues in the alternative that this argument is foreclosed by the procedural default doctrine. Riles failed to object at trial or on direct appeal to the exclusion of either veniremember. Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) this failure to timely object bars Riles from now complaining of the trial court's conduct. Because we have concluded that these veniremembers were properly excluded under Adams and Witt we need not analyze whether, in spite of Riles's procedural default, he is entitled to review under the Sykes cause and prejudice test. Id. at 90-91, 97 S.Ct. at 2508

Nor do we need to determine whether Riles's pre-trial motion to prohibit exclusion of prospective jurors with death penalty scruples would satisfy the contemporaneous---objection rule. We note, however, that this issue has previously been considered and rejected by the Texas Court of Criminal Appeals. Duff-Smith v. State, 685 S.W.2d 26 (Tex.Crim.App.1985), cert. denied, --- U.S. ----, 106 S.Ct. 186, 88 L.Ed.2d 154 (1985).


These issues are:

(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.

Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) & (2) (Vernon Supp.1986).


Riles selected a few excerpts from the entire voir dire examination to fortify his challenge. When these excerpts are viewed in context with the rest of the testimony, Riles's argument with respect to "prejudice" borders on frivolous. Riles distorts the "prejudicial" colloquy that supposedly passed between the court, prosecutor, and a juror. Riles's brief implies that one conversation in particular involved a juror when it in fact involved a conversation between the court, prosecutor, and Riles's attorney. Moreover, the particular conversation occurred because of a question posed by Riles's attorney to a veniremember who was not even selected as a juror. The conversation complained of involved the meaning of the term "deliberate" as used in the first special issue in the punishment stage of the trial. Contrary to Riles's version of the examination, the only statement made by the court in front of the veniremember was that the "courts have spoken on this issue [the distinction between the meaning of the words "deliberate" and "intentional"]." Record at 2095-96. The remainder of the discussion was conducted outside the presence of the jury. Record at 2096


Riles bases these "mitigating evidence" arguments on the Supreme Court's decisions in Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), Green v. Georgia, 442 U.S. 95, 96-97, 99 S.Ct. 2150, 2151-52, 60 L.Ed.2d 738 (1979), and Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). Reliance on these cases as support for his argument is misplaced, however, because all three of these cases dealt with situations or statutes that actually prevented proffered mitigating evidence from being considered by the fact finder. Riles was not prevented from submitting the mitigating evidence


Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)



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