Wallace Norrell THOMAS
Kidnapping - Rape
Number of victims: 1
Date of murder:
Date of birth: 1955
Victim profile: Quenette Shehane
Method of murder:
Location: Jefferson County, Alabama, USA
electrocution in Alabama on July 13,
A Convicted Killer Is Executed in Alabama
The New York Times
July 13, 1990
An Alabama man convicted
of abducting and killing a woman in 1976 was
executed in the electric chair early Friday
after failing in his last two attempts to
get a reprieve.
Wallace Norrell Thomas
died shortly after midnight central daylight
On Thursday, the United
States Supreme Court, which had rejected an
appeal in the case in April, rejected Mr.
Thomas's plea for a stay by a 7-to-2 vote.
Justices William J. Brennan and Thurgood
Marshall, who oppose the death penalty in
all circumstances, voted to grant the stay.
Later Thursday, Alabama
Supreme Court denied an emergency motion for
Mr. Thomas was the 133rd
person executed since 1976, when the United
States Supreme Court allowed states to
resume use of the death penalty. It was the
eighth execution in Alabama.
Mr. Thomas, 35 years old,
was convicted in the 1976 slaying of
Quenette Shehane, 21, who was abducted at a
convenience store near the Birmingham-Southern
College campus. She had graduated a few days
One of the two other men
charged in the case implicated Mr. Thomas in
the shooting. The co-defendants are serving
Mr. Thomas spent Thursday
visiting with relatives at Holman Prison in
southern Alabama. ''He gave his TV to one of
his family members and some other personal
belongings to an inmate friend,'' said a
Corrections Department spokesman, John Hale.
While on death row, Mr.
Thomas helped found Alabama's branch of
''Project Hope,'' a group against the death
Inmate Executed in
Alabama For 1976 Murder of Woman
July 14, 1990
black man convicted
of murder 12 years
ago read a statement
denouncing the death
penalty as racist
and then was
chair and executed
With relatives and
looking on, the 35-year-old
quoted from the
Bible and then read
his statement, in
which he said, ''Let
my death serve as an
instigator that will
awaken a nation to
fight and adopt the
philosophy of the
late, great Dr.
Martin Luther King
Jr., who said, 'Injustice
anywhere is a threat
Mr. Thomas had been
sentenced to death
for the abduction
and fatal shooting
of Quenette Shehane,
21, on Dec. 20,
1976. Miss Shehane,
who had graduated
College just a few
days before, was
kidnapped at a
near the campus. One
of the two other men
later charged in the
case, both of whom
are now serving life
Thomas in the actual
Protest to the
Mr. Thomas was
placed on death row
at Holman Prison
near this southern
Alabama town in
March 1978. His
execution had been
by a series of
On Thursday, the
lawyer's latest plea
for a stay, which
was based in part on
the argument that
chair, at Holman,
was inhumane. The
Stevenson, noted two
instances - one due
to a mechanical
other to human error
- over the last
seven years in which
prisoners had not
been killed with the
pull of the switch.
Thomas, wearing a
white prison uniform
with a purple ribbon
and a sticker saying,
not people,'' gave
his last statement.
Then he was strapped
into the electric
chair and was
executed. Only one
pull of the switch
Rights of Inmates
Mr. Thomas was the
133d person executed
in the United States,
and the eighth in
Alabama, since the
Supreme Court in
1976 allowed states
to resume use of the
While on death row
at Holman, he helped
found Project Hope,
an organization for
prisoners and their
families that fights
the death penalty,
seeks to educate the
public about it and
tries to bring
and their relatives
After the slaying of
Miss Shehane, her
Shehane, has become
advocate for victims'
helped found a group
called Victims of
Crime and Leniency.
'Can you imagine what that does to a mother?'
Miriam Shehane holds a picture of her daughter,
Quenette Shehane, in front of a wall of photos of other murder
victims in her Montgomery office. After Quenette's murder in the
'70s, Shehane became an advocate for the rights of the families of
Miriam Shehane's daughter, Quenette, was abducted
in 1976 as she was left a grocery store. Three men raped and
murdered her. Wallace Norrell Thomas was sentenced to death and
executed in 1990. Edward Bernard Lee was sentenced to life in prison
without parole. Jerry Lee Jones, who testified against the two,
received life in prison. Birmingham Post-Herald reporter Taylor
Bright asked Shehane about capital punishment in Alabama. Here's
what she had to say:
"I've always believed in the death penalty. I had
always wondered in the back of my mind if I served on a jury and it
was my responsibility to mete out the death penalty if I would be
capable of doing it.
Now I know I would be capable of doing it, and I
know why it is important. ...
Quenette was killed Dec. 20 and she was already
accepted as a graduate student at Auburn University. She was going
to teach grammar school. She loved children. She didn't have a
prejudiced bone in her little body. She was bubbling over with
energy, and it was all taken for nothing. Just for one little fling
with a little white girl.
I don't hate blacks. I don't. These were three
mean black people. But I do get tired of hearing about the poor
uneducated black people on death row. Well, I'm here to tell you
there are more whites on death row than there are blacks. ...
She got off work about 5:30 in the afternoon,
after dark, and she went straight to the fraternity house. She got
there, and her boyfriend was preparing the steaks and he realized he
didn't have any salad dressing.
As she came out of the U-Tote-Em (store), she was
abducted and was shoved into her car. She got under the steering
wheel and she screamed. She was screaming. And the clerks admitted
they heard her scream but didn't go out. They thought it was
So nobody went out to see what was happening, so
they pushed her into the car and drove off and kept her for four or
five hours, at least, raping her, and when they were all through
with her, they decided she couldn't live because Wallace Norrell
Thomas told them they had called each other by name so they had no
choice but to kill her. ...
And when we found out when she was missing, I was
praying all the way to Birmingham that she was warm, because it was
so extremely cold. I can't remember ever a colder night in my life.
Then to have to find out when they found her body
that she was stark naked and her body was frozen. And Jerry Lee
Jones tells how they were shooting at her and how she was running
through the briars and begging for her life saying, 'You're killing
Now, can you imagine what that does to a mother?
If I dwelt on what I know she went through for
five or six hours, and knowing people look at me and view me as out
for revenge. Revenge for me would be for me to ask for the state of
Alabama to make Wallace Norrell Thomas go stark naked and shoot at
him in the coldest weather ever for about five hours. That would be
revenge. But to put him in the chair and he's gone just like that is
not revenge. That is justice. ...
I have been asked how I felt when he was executed
and it was nothing but relief. I was hoping.
And I feel like if I knew the hour I was going to
meet my maker, I would make amends for my sins and I would say I was
sorry and beg the Lord to forgive me. So that was really what I was
expecting from Wallace Norrell Thomas, because I knew without a
shadow of a doubt that he was guilty."
891 F.2d 1500
Wallace Norrell THOMAS, Petitioner-Appellant,
Charlie JONES, Warden, and the Attorney General of the State
of Alabama, Respondents-Appellees.
United States Court of Appeals,
Dec. 21, 1989.
Rehearing Denied Feb. 13, 1990.
Appeal from the United States
District Court for the Southern District of Alabama.
Before TJOFLAT, Chief Judge,
FAY and VANCE,
FAY, Circuit Judge:
Defendant Wallace Norrell
Thomas appeals the district court's dismissal with prejudice of
his petition for a writ of habeas corpus. Defendant contends
that the district court erred in finding that defendant's
constitutional rights were not violated at the sentencing
hearing when the state trial judge, knowing the jury had not
reached a final decision, sequestered the jury for the evening
with instructions to continue deliberations in the morning.
Defendant argues that the
trial judge should have accepted the jury's lack of unanimity
and sentenced the defendant to life imprisonment without parole
rather than death. Defendant further asserts that the district
court erred in finding that defendant was not denied effective
assistance of counsel. Defendant argues that because he was not
charged with rape, his counsel should have objected when the
state introduced evidence during trial and made remarks during
closing arguments that the victim had been sexually abused.
Finally defendant requests
reversal of the district court's ruling that defendant was not
denied due process when the state trial judge declined to order
examinations to determine defendant's sanity at the time of the
offense. We find all of defendant's contentions meritless.
Accordingly, we AFFIRM the district court's dismissal of
defendant's petition for writ of habeas corpus.
On November 3, 1977, defendant
Thomas was convicted of intentionally killing Quenette Shehane
during the course of a robbery, and he was subsequently
sentenced to death. However, defendant's conviction was reversed
and remanded for a new trial on the authority of Beck v.
Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980),
and Beck v. State, 396 So.2d 645 (Ala.1980). Thomas v. State,
400 So.2d 435 (Ala.Crim.App.), cert. denied, 400 So.2d 435
In May, 1982, Thomas was
retried for murdering Quenette Shehane. On May 19, 1982, the
jury returned a verdict convicting Thomas of killing Quenette
Shehane during the course of a robbery, and on May 20, 1982, the
jury tendered a verdict recommending a death sentence. Thomas
appealed, and the conviction and sentence were affirmed by the
Alabama Court of Criminal Appeals, Thomas v. State, 460 So.2d
207 (Ala.Crim.App.1983), and the Alabama Supreme Court, Ex parte
Thomas, 460 So.2d 216 (Ala.1984). Thomas was prevented from
obtaining a writ of certiorari from the United States Supreme
Court because of his failure to file timely a petition.
Thomas next filed a petition
for writ of error coram nobis in Mobile County Circuit Court.
After an evidentiary hearing on July 22, 1985, the petition for
a writ of error coram nobis was denied. Thomas appealed the
denial of his petition for writ of error coram nobis, and the
Court of Criminal Appeals of Alabama affirmed the decision of
the Mobile County Circuit Court. Thomas v. State, 511 So.2d 248
(Ala.Crim.App.), cert. denied, 511 So.2d 248 (Ala.1987).
Having exhausted his state
court remedies, Thomas turned to the federal courts. He filed a
petition for a writ of habeas corpus, an amended petition for a
writ of habeas corpus, and a second amended petition for a writ
of habeas corpus in the United States District Court for the
Southern District of Alabama, all of which were dismissed on
December 29, 1988. Thomas appeals to this court to overturn the
district court's ruling.
A. The Trial Court's Instruction to
The record shows that at about
2:00 p.m. on May 19, 1982, after a short discussion between the
trial judge and counsel, lawyers for the state and for defendant
Thomas began their opening arguments regarding sentencing. At
the conclusion of defense counsel's opening argument, there
being no evidence beyond what was presented at trial, the
prosecutor argued aggravating circumstances and counsel for
Thomas argued mitigating circumstances.
The trial judge then provided
the jury with sentencing instructions. After they were charged,
the jury began deliberations. The deliberations lasted between
one hour fifty minutes and two hours, after which the following
THE COURT: Ms. Cunningham,
does the jury have a report they would like to make to me? Do
not tell me how you are split if there is a numerical division
in your number.
MS. CUNNINGHAM: Yes, it is.
THE COURT: Okay. We have spent
the better part of two days trying this case. Witnesses have
been brought in and told everything there is to be told about
this case. The lawyers have done a fine job in presenting both
sides of the case to you. Under the circumstances I'm going to
recess you until 8:30 in the morning. Let's make it 9:00 in the
morning. I have a docket to call. And let y'all come back in
fresh and try your deliberation again. I feel two hours is too
short a time deliberation to call a hung jury. ....
Is there anything further for
THE COURT: For the defendant?
(Folder No. 5, Vol. 4 at
602-03). The trial judge then ordered the jury to remain
sequestered and discharged them for the evening.
The following morning,
defendant's counsel argued that the jury should not be allowed
to continue deliberating because of the Alabama Supreme Court's
decision in Beck v. State, 396 So.2d 645 (Ala.1980). The trial
judge denied defendant's request to prevent further
deliberations and charged the jury as follows:
THE COURT: Ladies and
gentlemen of the jury, I hope y'all had a pleasant evening and
are rested. When I told you I wanted you to deliberate further,
I am not trying to force you to get a verdict. There's one thing
I feel like that y'all might not have understood from my
previous charge to you and I want to make this clear to you.
If the jury cannot agree on a
unanimous sentence of death as the punishment, the alternative
form of, we, the jury, find the punishment life imprisonment
without parole would be what you would return. Did y'all
understand that previously?
THE COURT: So, you have two
possible forms you may return. One, is the death verdict form I
have given you. If you cannot agree on that unanimously, then
your verdict would be the life imprisonment without parole.
Do you have any questions or
anything further I might be able to assist you in, in your
deliberations at this time?
(Jury out for further
(Folder No. 5, Vol. 4 at
Defendant argues that the
trial court violated his constitutional rights in that it should
have accepted the jury's May 19th statement that it had not yet
reached a decision as a recommendation that Thomas be sentenced
to life imprisonment without parole pursuant to Beck v. State,
396 So.2d 645 (Ala.1980). Defendant further argues that the
trial court coerced the jury to return a sentence of death when
it instructed them to continue deliberations. We find both
After careful review of the
record we cannot conclude that the state trial judge committed
constitutional error in requiring the jury to continue
deliberations after learning of their indecision at the close of
the afternoon session. Although there is no specific statement
in the record as to the time when the judge called the jury out
of deliberations on May 19, 1982, we are of the impression that
it was late in the day.
The afternoon session began at
approximately 2:00 p.m. and included opening statements
regarding sentencing, arguments concerning aggravating and
mitigating circumstances, sentencing instructions to the jury,
and approximately two hours of jury deliberation. Thus, it
appears that the court was simply recessing for the evening when
it called the jurors to determine whether a verdict had been
Nonetheless defendant argues
that the response from the jury that they had not yet reached an
unanimous verdict precluded the judge from imposing the death
sentence. We disagree. There is no indication in the record that
the jurors were complaining to the court that they were "hopelessly
deadlocked." Cf. Ex parte Giles, 554 So.2d 1089, 1090 (Ala.
1987) (per curiam) (Alabama Supreme Court reversed death
sentence where judge mandated continued deliberations after jury
stated it was hopelessly deadlocked).
To the contrary, there is no
indication in the record that the jury had terminated its
deliberations when the trial judge questioned Ms. Cunningham. We
hypothesize that the judge inquired as to the jury's position in
order to determine whether it would be necessary to reconvene
the following day. We do not believe that Thomas' right to due
process was violated by the trial judge's actions.
Moreover, we find that the
state trial judge was not coercive in mandating further
deliberations and reinstructing the jury on May 20, 1982. We
believe Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98
L.Ed.2d 568 (1988), is germane. In Lowenfield, the jury, after
being charged, began deliberations. The evening drew to a close
and they reconvened the next day to continue deliberations.
During the afternoon, the jury sent a note to the judge stating
that they were unable to reach a decision at that time and
requesting advice from the court again as to their
The court responded by
providing each juror with a note asking if it would be helpful
to continue deliberations. Eight of the twelve jurors thought
further deliberations would be helpful. When the court called
the jurors into the courtroom to advise them of their
responsibilities, the jury again gave the court a note which
stated that some of the jurors misunderstood the previous
The judge asked whether
further deliberations would help them reach a verdict, and
eleven responded affirmatively. The court then instructed the
jury again, and in thirty minutes, the jury returned a verdict
sentencing defendant to death. The Supreme Court held that the
trial judge did not impermissibly coerce the jury to return a
death sentence when it polled the jury twice and reinstructed it
to continue deliberations.
Under the authority of
Lowenfield, we find the trial judge's colloquy with the jury in
the present case to be even more uncoercive. Unlike the trial
judge in Lowenfield who ordered continued deliberations after
the jury, of its own volition, informed the court of its failure
to reach a verdict, the judge in the instant case interrupted
the jurors before they had ceased deliberating. He did not order
continued deliberations in response to the jury's claim of
indecisiveness, but rather, he permitted the jury to reconvene
to resume discussions which they had not yet completed.
We find this situation to be
inherently less coercive than the situation with which the
Lowenfield jurors were faced. Hence, if the Supreme Court found
no error in the actions of the Lowenfield judge, then we
certainly find that the judge in this case committed no error in
allowing the jury to continue deliberations.
Further, the trial judge in
the instant case explicitly stated to the reconvened jury that
he was not trying to force them to reach a verdict. Rather, he
explained that if they could not agree unanimously on a sentence
of death, they would be required to return a verdict of life
imprisonment without parole. Nothing in what the judge told the
jury leads us to believe that the jury was coerced into
recommending a death sentence. To the contrary, we believe the
judge painstakingly attempted to avoid influencing the jury to
return a verdict of death.
B. The Prosecutor's
Comments Regarding Rape and Counsel's Failure to Object
Before Thomas' trial, his
counsel submitted a motion in limine to preclude introduction of
any evidence showing that Quenette Shehane had been raped, since
Thomas was not charged with rape. The trial court denied
defendant's motion. At trial, the state introduced evidence that
on the night Quenette Shehane was killed, Thomas had stated that
he was going out to pick up girls.
Further, the state introduced
evidence of semen stains found on the upholstery of the victim's
car and pubic hair found on the victim's coat. Also, during
closing argument in both the guilt and sentencing stages of
trial, the prosecutor suggested that Quenette Shehane had been
sexually abused before she was killed. Trial counsel for Thomas
did not object to the state's references to rape.
Defendant contends that his
trial counsel gave him ineffective assistance for failing to
object to the prosecutor's introduction of evidence that a rape
had occurred and allusion to rape in closing arguments. We
disagree. In a habeas corpus proceeding our review of
evidentiary rulings of the trial court is limited. See, e.g.,
High v. Kemp, 819 F.2d 988, 996 (11th Cir.1987) (contention that
statement of other murders was an improper attempt to use other
crimes as evidence of guilt was a question of Georgia
evidentiary rules and not a basis for relief in habeas corpus
proceeding), cert. denied, --- U.S. ----, 109 S.Ct. 3264, 106
L.Ed.2d 609 (1989); Smith v. Wainwright, 741 F.2d 1248, 1258
(11th Cir.1984) (admission of evidence of another murder not
unconstitutional, although its admissibility is "close and
difficult" question under state law), cert. denied, 470 U.S.
1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985); Hall v. Wainwright,
733 F.2d 766, 770 (11th Cir.1984) (per curiam) (citing Burgett
v. Texas, 389 U.S. 109, 113-14, 88 S.Ct. 258, 260-61, 19 L.Ed.2d
319 (1967)) (federal courts' authority to review state
evidentiary rulings in a habeas corpus action is limited; not
fundamentally unfair to admit evidence of other murder), cert.
denied, 471 U.S. 1107, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985).
Consequently, we will accord
deference to the state trial judge's order denying Thomas'
motion to exclude the evidence of sexual abuse, and to the trial
court's holding in the coram nobis proceeding that the pubic
hair and semen stain were admissible as part of the crime scene.
(Folder No. 4, Vol. 1 at 75-76); see also Morrow v. State, 52
Ala.App. 145, 290 So.2d 209 (Ala.Crim.App.1973) (evidence which
is part of res gestae admissible), cert. denied, 292 Ala. 743,
290 So.2d 213 (Ala.), cert. denied, 419 U.S. 853, 95 S.Ct. 97,
42 L.Ed.2d 85 (1974); Lackey v. State, 41 Ala.App. 46, 123 So.2d
186 (Ala.Crim.App.) (articles found at the scene of a crime
which show the manner in which it was committed admissible),
cert. denied, 271 Ala. 699, 123 So.2d 191 (Ala.1960).
Furthermore, after reviewing
Alabama law, we believe that the evidence and statements
regarding abuse of the victim were also admissible to show
Thomas' motive and intent to kill Quenette Shehane. See Garner
v. State, 269 Ala. 531, 114 So.2d 385 (Ala.1959); Harris v.
State, 489 So.2d 688 (Ala.Crim.App.), cert. denied, 489 So.2d
688 (Ala.1986); Akers v. State, 399 So.2d 929, 931 (Ala.Crim.App.1981);
Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (Ala.Crim.App.1973).
It follows that counsel for
defendant did not err in failing to object to such admissable
evidence. Consequently, defendant was not denied effective
assistance, since counsel's performance did not fall below an
objective standard of reasonableness when counsel did not object
to the evidence of sexual abuse of Quenette Shehane. See
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
C. Failure to Appoint an
Independent Psychiatric Examiner
Finally, defendant claims that
the district court erred when it failed to find a constitutional
violation in the state trial court's refusal to appoint an
independent psychiatrist to determine Thomas' sanity at the time
he committed the offense.
Defendant emphasizes the fact
that Dr. Herbert Eber, in May, 1977, prior to Thomas' first
trial, wrote a report which stated that defendant was insane
during the commission of the offense and at the time of trial.
Defendant argues that the state trial judge should have granted
defendant's motion for an independent examination because of the
existence of Dr. Eber's report diagnosing Thomas as insane and
Defendant relies on Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to
support his argument that the trial judge committed a
constitutional violation by failing to appoint an independent
psychiatrist. We find defendant's reliance misplaced. In Ake,
the defendant had been so unstable prior to his trial that the
trial court sua sponte ordered him to be examined by a
The psychiatrist recommended
that Ake be sent to an institution to determine if he was
competent to stand trial. Psychiatrists at the institution found
Ake incompetent, but rehabilitated him to the point of
competency after six weeks. In a pretrial conference, Ake's
attorney informed the court that Ake would use the insanity
defense, but the court denied appointment of a psychiatrist.
The Supreme Court held that "when
a defendant demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant factor at trial,
the State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and
presentation of the defense." Id. at 83, 105 S.Ct. at 1096.
This case differs
significantly from Ake. Whereas the court in Ake was fully
apprised of Ake's mental instability from the outset, the court
in the instant case was totally unaware of mental problems
Thomas might have been encountering. Nowhere does the record
show that Dr. Eber's report,
which found Thomas incompetent and insane, was presented to the
trial court. Further, counsel for Thomas never complained about
difficulties communicating or cooperating with Thomas.
Additionally, the trial court engaged in a discussion with
Thomas which indicated that Thomas was indeed competent.
Finally, the trial judge had
two other reports before it, one from a social worker stating
that Dr. Blankenship examined Thomas at the Jefferson County
jail and found him competent, and another from Searcy Hospital
averring that examinations revealed defendant's competence. The
trial judge simply had nothing before him that indicated Thomas
could be insane.
Consequently, as we are to
evaluate the actions of the trial judge based on the evidence
presented to him, we conclude that defendant failed to
demonstrate a substantial basis for the insanity defense. See
e.g. Messer v. Kemp, 831 F.2d 946 (11th Cir.1987) (en banc) (defendant
receives fair trial if information before trial judge does not
demonstrate a substantial basis for the insanity defense), cert.
denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988).
Consequently, we cannot conclude that the state trial judge
violated Thomas' constitutional rights by denying his motion to
appoint an independent psychiatric examiner.
Based on the foregoing, we do
not believe that the district court erred in denying defendant's
claims for relief. In particular, we find that the state trial
judge did not violate Thomas' constitutional rights when he
requested further deliberations after recessing for the evening.
Nor do we find that Thomas received ineffective assistance
because his counsel failed to object to references to abuses of
the victim's body before the murder. Finally we reject
defendant's claim that he was denied due process when the state
trial court refused to appoint an independent psychiatric
examiner. Accordingly, we AFFIRM the district court's decision.
TJOFLAT, Chief Judge, concurring:
I concur in the opinion of the
court. I write separately because I would take a different
approach to petitioner's ineffective assistance of counsel claim.
Petitioner Thomas was charged
with robbing and murdering, but not with raping, Quenette
Shehane. Prior to trial, Thomas' trial counsel moved in limine
to exclude any evidence tending to show that Shehane had been
raped. The trial court denied the motion. At trial, the State
introduced evidence tending to show that Shehane had been raped,
and, in closing argument, the prosecutor suggested that Shehane
had been sexually abused before she was killed. In his federal
habeas petition, Thomas claimed that his trial counsel rendered
ineffective assistance, in violation of Thomas' sixth and
fourteenth amendment rights to counsel, by failing to object on
The opinion of the court
approaches Thomas' ineffective assistance of counsel claim
obliquely, detouring unnecessarily through federal habeas cases
in which federal courts have deferred to state trial court
evidentiary rulings, provided those rulings did not deprive the
petitioner of due process.
It eventually concludes that evidence of rape was admissible
even over objection and that Thomas' counsel did not, therefore,
perform defectively by failing to object. I would approach the
ineffective assistance of counsel claim more directly.
When analyzing an ineffective
assistance of counsel claim, we begin with the familiar two-part
Strickland inquiry, see Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984): was counsel's
performance deficient, and, if so, did the deficient performance
prejudice the defendant? The standard for measuring deficient
performance is an objective one: "reasonableness under
prevailing professional norms." Id. at 688, 104 S.Ct. at 2065.
Furthermore, a reviewing
court's scrutiny of counsel's performance should be highly
deferential. Id. at 689-90, 104 S.Ct. at 2065-66 (there is "strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance"; defendant must overcome
presumption that challenged action "might be considered sound
Thomas' trial counsel
attempted, in his unsuccessful pretrial motion, to prevent the
State from bringing potentially prejudicial evidence of rape to
the jury's attention. By the time of trial, however, he had
adopted a different strategy, as he explained at the coram nobis
hearing in the state court. He based petitioner's defense at
trial on the theory that petitioner was not present when Shehane
was killed. Counsel regarded the State's evidence of a dried
semen stain found on the front seat of Shehane's car as relevant
and almost certainly admissible to show the circumstances of the
He feared that objecting to
the state's introduction of the semen stain into evidence would
only draw attention to the matter and would suggest that the
defense "had something to hide." Therefore, rather than
objecting to its introduction, he chose to discredit the
evidence by establishing, on cross-examination of the State's
forensic expert, that no tests had been performed that indicated
any connection between the stain and petitioner or even that the
stain was fresh at the time of the crime.
For similar reasons, counsel
did not object to the prosecutor's allusions to sexual abuse
during closing argument. Counsel believed that the allegedly
unwarranted comments were no more than permissible inferences
from the evidence that had been properly introduced. Still
basing his defense on the theory that petitioner was elsewhere
at the time of the crime, counsel decided not to risk creating
the appearance that petitioner had anything to fear from the
suggestion that Shehane had been sexually abused before she was
This is surely the kind of
tactical decision that Strickland cautions us not to second-guess.
This court itself has stated that "[t]he sixth amendment right
to effective assistance of counsel does not require counsel to
raise every objection without regard to its merits." Palmes v.
Wainwright, 725 F.2d 1511, 1523 (11th Cir.), cert. denied, 469
U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). Counsel had a
reasonable expectation that the evidence tending to show rape
would have been admitted even over his objection; he made a
reasonable decision to minimize the impact of the evidence and
to discredit it by showing, on cross-examination, that the State
had established no connection between the evidence and his
Accordingly, I agree with the
court that counsel's performance, in failing to object either to
the introduction of evidence tending to show rape or to the
prosecutor's suggestion that the victim had been sexually abused,
did not fall below an objective standard of reasonableness.
WALLACE NORRELL THOMAS, Petitioner,
Warden, Holman State Prison, Respondent
THOMAS v. JONES
Civil Action No. 90-0517-AH-C
UNITED STATES DISTRICT COURT FOR THE SOUTHERN
ALABAMA, SOUTHERN DIVISION
742 F. Supp. 598; 1990 U.S. Dist. LEXIS 8581
July 10, 1990, Decided
The following is a summary of the relevant
evidence presented through documents, exhibits, affidavits,
depositions, and testimony at the hearing.
Alabama's wooden electric chair is in a separate
"execution chamber" with its back to the wall on which the
receptacles for the electrical connectors are located. There are
four receptacles, arranged two by two. (Photograph, Exhibit 2 to
Morse affidavit). To properly connect the chair to the power source
the cables should run from the two bottom receptacles to the back of
the chair. (Morse affidavit, p. 2, Morse testimony, 7/9/90,
Bernstein testimony, 7/9/90, Brooks affidavit, p. 2, Thigpen
deposition). The top receptacles lead to a bank of test resistors
from which no power can flow. ( Leuchter affidavit, p. 3, Bernstein
testimony, 7/9/90, Morse testimony, 7/9/90).
If the cables are connected from the top
receptacles to the electric chair, no electrical power reaches the
chair. (Brooks' affidavit, p. 2, Leuchter affidavit, p. 3, Morse
testimony, 7/9/90, Bernstein testimony, 7/9/90).
[*606] Fred A. Leuchter (engineer engaged in the
design and manufacture of "execution hardware") states that
Alabama's execution equipment is old, but that it is the same type
of equipment most electrocution states use to carry out their
electrocutions. Leuchter opines that, properly operated, Alabama's
electric chair can be used to carry out a humane execution. (
Leuchter affidavit, p. 4). Leuchter also states that the old
electric chair is being replaced because of the difficulty in
getting spare parts, and because the newer electric chair will be
easier to use.
Dr. Morse testified that he examined the electric
chair on July 5, 1990, that it was in satisfactory working order,
and that the design, though simple, is adequate to enable the
Alabama Department of Corrections to carry out a humane execution.
(Morse deposition, [**21] and Morse testimony at 7/9/90 hearing).
Dr. Bernstein testified that Alabama's execution procedures are
inadequate because the electric chair is antiquated ("an accident
waiting to happen") and because the people who operate it do not
know what they are doing. Bernstein holds the opinion that better
trained personnel would not have made the mistake made by Craft and
Skipper, and that there is a substantial likelihood of some other
mishap occurring during future executions.
Some of the documentary evidence and live
testimony tended to show that corpses of prisoners executed in
Alabama's electric chair bear unexplained burns. (Richardson Autopsy
Report, Dunkins Autopsy Report.)
Findings of Fact
1. The Court finds that in a properly performed
judicial electrocution the initial application of electricity is
meant to cause instant brain death. Cardiac arrest is secondary.
2. The Court finds that the electric chair was
incorrectly connected on the night of July 14, 1989. As a result of
this error, no electrical power reached the chair during the first
cycle. Horace Dunkins, Jr. did not receive an electrical shock until
the second cycle.
3. The Court finds that Dunkins fainted at the
[**22] time of the first attempt at his execution and never regained
consciousness. Consequently, the Court finds no support for Thomas'
contention that Dunkins suffered from being made to go through a "mock
execution." Further, the Court finds no credible evidence that
Dunkins suffered any pain during the actual electrocution process as
during the one time electricity passed through his body, * * *
Dunkins was instantaneously rendered brain dead. Consequently, he
was unable to feel pain, and did not suffer.
4. The Court finds that the error which occurred
during the Dunkins execution cannot be repeated.