On Good Friday, April 4, 1980, the
unthinkable happened to 22-year-old Suzanne Knuth. Knuth and her
husband Calvin were heading to a friend’s house for dinner, in
Galveston, when their car broke down. While Calvin was going to get
help, Knuth decided to walk to her Beaumont home.
Knuth, however, did not make it home. She was
abducted and taken to a remote area of Galveston County Beach.
Chester Lee Wicker, 37, later confessed to attempting to rape and
strangle Knuth, eventually burying her alive at the beach. Her body
was found 18 days later, after Wicker led police to the area of the
beach where he had killed her.
Wicker was scheduled to be executed in 1984, but
won two reprieves on his appeals, arguing that the trial court
committed reversible errors by failing to sustain his motion to
suppress two written statements and one oral statement given after
His last execution date was set, and hours before
he was to be executed, his attorney Bruce Griffiths made his final
attempt to stay the execution. Griffiths argued that in Texas, the
killer of a white person was more likely to be sentenced to death
than the killer of a black person.
This final appeal was lost by one vote and Wicker
seemed ready for his fate. Wicker’s prior arrest record included
aggravated assault on a female in Galveston and auto theft in San
Marcos. He had served nearly two years of a 10-year sentence for
rape, and was released on parole in 1973.
Wicker calmly awaited execution with his mother,
grandfather, the prison chaplain, and a “spiritual adviser.” After
visiting, Wicker threw a tantrum, smashed his belongings and stomped
on them. He later calmed down and requested his last meal to be
lettuce, tomatoes and two glasses of milk.
He was pronounced dead at 12:20 a.m. The victim’s
mother, Juanita Fielder, expressed no desire to witness the
execution. “I just want to know it’s finally over,” Fielder said.
783 F.2d 487
O.L. Mccotter, Director, Texas Department of Corrections, Respondent-appellee
United States Court of Appeals,
Feb. 18, 1986
Appeal from the United States District Court for
the Southern District of Texas.
Before GEE, RUBIN and JONES, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
Lee Wicker was
convicted of capital murder and, after a separate sentencing
proceeding, was sentenced to death based on the jury's findings.
He now seeks habeas corpus relief, asserting six bases in his
petition. The district court found all of Wicker's
claims lacking in merit. Because the district court did not err in
its assessment, we affirm the judgment denying him relief.
Shortly after dark on April 4,
1980, Chester Lee
Wicker was driving his mother's car on a
street in Beaumont, Texas. He saw a young woman, Suzanne Knuth,
walking along the street. He had never seen the woman before, but
he turned the car around, pushed her into the car, and drove away.
Two witnesses, Dee Ann Barthell and Jerry Adkins, told police
officers that they had seen a woman struggling with a white man,
who forced her into a grayish-silver Oldsmobile. Knuth's purse and
necklace were found near the place the witnesses pointed out, and
the area showed signs of a scuffle. From a photograph, Barthell
tentatively identified Calvin Knuth, Suzanne Knuth's husband, as
In the early morning hours of
the next day, April 5, 1980, Wicker went
to the home of Olive King, a family friend at Crystal Beach,
Galveston, Texas. He said that his car was stuck in the sand at
Crystal Beach near the Sun Oil Company field. At
Wicker's request, King telephoned Wicker's
uncle, Bob Wicker, for help. The car that
Wicker had been driving, his mother's
gray Oldsmobile Cutlass, was stuck in the sand on the beach, three
or four miles from the Sun Oil field. Bob Wicker
noticed blood on the floormat of the car and on his nephew's shirt,
and asked Wicker about it.
Wicker said that he had cut his arm. His
uncle noticed, however, that the blood on his shirt was not in the
place where Wicker said he had been cut.
Wicker later fled to California and
thence to Washington. On April 11, 1980, he was seen by another
uncle, Chester Vaughn, in El Centro,
Acting on information gained in
investigating Ms. Knuth's disappearance, a deputy sheriff from the
Jefferson County Sheriff's Office informed the Beaumont police
that they should investigate the Crystal Beach area. Following the
suggestion, Beaumont police spoke with Bob
Wicker, who directed them to where Wicker's
car had been stuck in the sand. They searched the area for two
hours, but found nothing of significance.
The police then went to the
apartment of Wicker's mother, Mary
Wicker, where they noticed a car matching
the description of the one seen during the abduction. While the
police were inside the apartment interviewing Mrs.
Wicker, the telephone rang and Detective
Larry Thomas answered. The operator indicated it was a long
distance call from "Chet" Wicker. He
handed the phone to Mrs. Wicker, who took
it to the far side of the room. Although she spoke in a low tone,
the officers heard her say that the police were there. After she
had completed the conversation, Mrs. Wicker
told the police that the call was from her sister.
With the consent of Mrs.
Wicker, the police searched her car and
took hair and carpet samples. Two days later, Mrs.
Wicker brought the car's floormats, which
the police had seen inside the apartment, to the police station.
At the time the police first saw the mats, they were dirty, but,
when brought to the station, they were clean.
The investigation continued.
After being hypnotized by a police hypnotist on April 14, Barthall,
who was sixteen and who had witnessed the abduction en route to a
disco, identified Wicker (rather than
Calvin Knuth) from a photo spread.
A few days later,
Wicker's cousin, Adana Bennett, of El
Centro, California, spoke by telephone with two Beaumont
detectives, and with Wicker's
grandparents and mother. She said that Wicker
had telephoned her on April 18, said that he was in the state of
Washington and that he wanted to return to Texas to "straighten
out" his problems there.
In these conversations,
Wicker's family and the police made
arrangements for Wicker to return to
Galveston by bus. When Wicker later
arrived in El Centro, California, he told Bennett that "he was in
trouble, he was afraid he would have to go to prison," and his
mother had been "pressuring" him to leave Beaumont. The next
morning, April 21, a member of Wicker's
family notified the Beaumont detectives that
Wicker would arrive in Galveston and was coming back to
tell what happened.
The Beaumont police and
Wicker's grandfather, Paul Long, agreed
that Long would meet Wicker in Galveston
and take him to the Beaumont Police Station. Then the police
learned from Long that Mary Wicker was
planning to meet her son at the bus station in Houston.
Apprehensive that Wicker might again flee,
the police decided to obtain a warrant for his arrest on a charge
of aggravated kidnapping.
Armed with the warrant, Beaumont
and Houston police arrived at the Houston bus station between
10:30 and 11:00 p.m. on April 21. They met Mary
Wicker and spoke with her. There is a dispute about what
was said, but the police version is that Mrs.
Wicker informed them that she had spoken with an attorney
and asked that they let her talk with Wicker
once he arrived. The police officers say they agreed that she
might talk with him in their presence.
got off the bus in Houston, just before midnight, April 21, he was
arrested by two Houston police officers who turned him over to the
Beaumont police. The Beaumont police gave Wicker
Miranda warnings within minutes of the arrest. They testified that
they then looked around for Mrs. Wicker,
but did not see her. Mrs. Wicker, however,
said that the police refused to let her meet with her son.
Four policemen traveled from
Houston to Beaumont with Wicker by car.
One officer testified that, during the ride, he told
Wicker what he knew about the offense and
that he wanted Wicker to show him where
the body was. He urged Wicker to give him
this information so the victim's family could give her "a decent
burial," a "Christian burial." Wicker
responded that he "wanted to [help] but that it was bad" and asked
for assurance that he would not be hurt. The officer testified
that after he reassured Wicker,
Wicker agreed to show the police where he
had buried the body. They proceeded to that part of Crystal Beach
where the Oldsmobile had been stuck in the sand, and conducted a
quick search in the dark, but were unable to locate anything.
Wicker gave some details of the offense
and agreed to give a statement in Beaumont. The testimony was
confirmed by the testimony of the other three officers.
Wicker gave a different account,
asserting that he had been threatened and physically abused by the
police and he thereafter acted in fear of physical harm.
When the group arrived in
Beaumont, the police took Wicker to the
Jefferson County District Attorney's Office, where they read
Miranda warnings to him. Wicker gave a
written statement (the Beaumont statement) in which he
affirmatively waived his rights to counsel and to remain silent.
The taking of the statement was completed about 4:30 a.m., at
which time Wicker was booked. At about
6:00 a.m., the Beaumont authorities took Wicker
back to the beach. Wicker showed them
where the body was buried and also led them to where he had buried
some of the victim's belongings. Part of the body, which was only
partially buried in an area surrounded by weeds, was sticking out
of the sand. The place where the body was found was in Galveston
County, the county seat of which is in Galveston, not in Jefferson
County, in which Beaumont is located.
Upon returning to Beaumont, the
police photographed Wicker and then, at
8:35 a.m., brought him before a magistrate who gave him the
warnings required by Texas statute. Wicker
asked to telephone his mother and was permitted to do so. He was
then confined in the Beaumont County jail.
Wicker informed the police that his mother had communicated
with an attorney. Two lawyers arrived shortly thereafter and asked
to speak with Wicker. The police allowed
the conference. The lawyers advised Wicker
not to say anything or sign any statement and then left.
had said in his Beaumont statement that Suzanne Knuth had jumped
from the moving car, and that the fall either knocked her
unconscious or killed her. On April 23, however, the police
laboratory reported to Detective Thomas that the clothing of the
deceased showed no signs of having fallen out of a moving car.
Thomas told Wicker of the lab results and
Wicker then made an oral statement to
Thomas, which was not reduced to writing.
was indicted by the Galveston County grand jury for capital murder
on April 24. On the same day, about 5:00 p.m., he was informed of
the charges by a criminal investigator from the Galveston County
District Attorney's Office, who again gave him Miranda warnings.
Thereafter, the police
transported Wicker to Galveston. During
the trip, Wicker told the police that he
understood his rights. He said he had spoken with an attorney in
Beaumont, but had not retained that attorney because his fees were
to high. One of the lawyers, Laine, testified that he had been
retained by Mary Wicker,
Wicker's mother, and had represented
Wicker in a bond reduction hearing, but
that his representation ceased when Wicker
was transferred to Galveston. During the trip,
Wicker agreed to give another statement, but said he first
wanted to see a psychiatrist.
arrived in Galveston, a Galveston County Justice of the Peace met
with him at the Galveston city jail and gave him the warnings
required by Texas statute, post-Miranda, specifically informing
Wicker of his right to appointed counsel.
Wicker, however, made no request for
appointed counsel, responding only that he understood what the
magistrate was saying. Defense counsel was not appointed to
represent Wicker until sixteen days after
his arrest and thirteen days after his indictment.
Later that day, an assistant
district attorney made a motion to the court to appoint a
psychiatrist to examine Wicker. The court
appointed Dr. Ed Gripon and he met with Wicker
at the district attorney's office on April 26 for about two hours.
Before this interview, Wicker was given
Miranda warnings and expressly waived his rights.
After the meeting,
Wicker agreed to give the police a
statement. At 7:26 p.m., the police again gave
Wicker Miranda warnings, this being at least the fifth time
Wicker was informed of his rights. The
authorities then went over Wicker's
Beaumont statement, and asked him to indicate which portions were
correct. After several hours, a new statement (the Galveston
statement) was typed. Wicker was again
given Miranda warnings, and, after verbally waiving his rights, he
reviewed his statement, made corrections, and signed it. Before
signing the statement, he asked that he be permitted to call his
grandfather. The police did not allow the phone call and told
Wicker that the statement was "his alone
to make or not to make." Thereafter, Wicker
signed the statement, which contained an express waiver of his
rights. Only the Galveston written confession was introduced
against Wicker at trial. Parts of the
confession were omitted by the state, but were introduced by the
asserts that he was denied his constitutional right to confront
the witnesses against him and his due process right to a fair
trial by the admission of the hypnotically-enhanced testimony of
Dee Ann Barthell. The state responds that this claim was not
asserted at trial or on direct appeal and is, therefore, barred by
the procedural-default doctrine.
As we have noted, Ms. Barthell's
hypnotically-induced identification of Wicker
was admitted into evidence. While her in-court testimony was
somewhat tentative, she testified that she had, after hypnosis,
picked out Wicker's picture from a photo
spread. Trial counsel objected on the ground that the testimony
was unreliable and suggestive,1
but the confrontation and due process issues were not specifically
raised by counsel. Wicker asserts that
this objection put the court and the district attorney on notice
of the potential problems raised by the posthypnotic testimony and
that counsel had cause for failure to raise the confrontation
The fact that a witness has been
hypnotized before testifying does not per se require
disqualification, as we held in United States v. Valdez.2
The admissibility of such testimony is to be evaluated on a
case-by-case basis. The probative value of the testimony is to be
weighed against its possible prejudicial effect. In this case, we
do not discern any prejudice to Wicker
resulting from the admission of Ms. Barthell's testimony. On
direct examination, her testimony corresponded substantially to
what she wrote in a statement given before the hypnotic session.
On direct, Ms. Barthell did not identify Wicker
as being the abductor. It was only after Wicker's
counsel, on cross-examination, elicited the fact that Ms. Barthell
had "identified" the victim's husband as "looking like" the
abductor that the state, on redirect, elicited testimony from her
that she had selected Wicker's picture
from a photo spread after being hypnotized. Even her
identification at trial was fully probed on cross-examination. Ms.
Barthell's testimony as to the abduction was cumulative of that of
Jerry Adkins, who testified without objection. There was also
substantial independent evidence that the deceased had been
abducted: her purse was found at the abduction site, which showed
evidence that a struggle had occurred. In addition,
Wicker had confessed to kidnapping the
Under some circumstances,
hypnosis may render a witness so positive, so certain, that
effective cross-examination is impossible.3
The record in this case, however, demonstrates that hypnosis did
not have that effect on Ms. Barthell. In this case,
Wicker was not denied his right to
confront the witness, Barthell, nor was he denied a fair trial.4
Therefore, we need not determine whether there was adequate cause
to raise these additional constitutional objections to the
hypnotically-induced testimony or whether the defense is now
barred by procedural default when other objections, but not these,
contends that his right to an impartial jury was violated by the
trial court's exclusion of a prospective juror, W.N. Jones. Jones,
a retired Army Reserve officer, expressed doubts that he could
assess the death penalty and that, knowing a death sentence might
result, he could answer affirmatively the questions that would be
asked at the punishment phase of the trial.
To determine when a prospective
juror may be excluded for cause because of his or her views on
capital punishment, the inquiry is "whether the juror's views
would 'prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath."6
This is the standard applied by the Supreme Court in Wainwright v.
which clarifies the Court's earlier decision in Witherspoon v.
and reaffirms the standard enunciated in Adams v. Texas.9
It is a test to be applied primarily by the trial court, for
determinations of juror bias depend in great degree on the trial
judge's assessment of the potential juror's demeanor and
credibility, and on his impressions about that venireman's state
The trial court's determination
that a prospective juror could not perform his statutory function
faithfully and impartially is accorded a presumption of
correctness under 28 U.S.C. Sec. 2254(d).11
A trial court is not required to spell out his specific reasons
for excusing each venireman.12
Even if the record is silent as to the standard employed by a
state trial judge, as it is here, he is presumed to have applied
the correct standard.13
There is support in the record of Wicker's
trial for the trial court's determination that Jones's views might
substantially impair his performance as a juror, and we cannot
substitute our judgment for his.
The argument that exclusion of
jurors under Witherspoon subjects an accused to a jury panel
unfairly biased on the issue of guilt and deprives the accused of
a fairly cross-representative jury has been consistently rejected
We are of course aware of the contrary result reached by the
Eighth Circuit in Grigsby v. Mabry,15
but, until the Supreme Court affirms that decision, we are bound
by the law of this circuit.
urges that his defense counsel made mistakes throughout both the
trial and the direct appeal and that these errors, taken as a
whole, resulted in ineffective assistance of counsel. He also
contends that, at the punishment stage, his counsel called two
psychiatrists whose testimony on direct examination virtually
required the jury to answer one of the special issues on
punishment affirmatively, which resulted in his death sentence.
Strickland v. Washington16
holds that counsel is not so ineffectual as to entitle the
defendant to a new trial unless the habeas applicant shows that
(1) the counsel made errors so egregious that he was not
functioning as the "counsel" guaranteed by the sixth amendment17
and (2) the deficient performance so prejudiced the defense that
there is "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
In a death sentence challenge, specifically, the "question is
whether there is a reasonable probability that, absent the [counsel's]
errors, the sentencer--including the appellate court, to the
extent it independently reweighs the evidence--would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death."19
Applying this standard, we review each of the failures of counsel
that allegedly occurred during both the guilt and sentencing
phases of the trial.
faults his trial lawyer for accepting Dr. R. Simmons as a juror.
In response to the defense counsel's question whether he would
consider in his deliberation the failure of the defendant to
testify, Dr. Simmons stated, "I could consciously try not to. I'm
not certain that I could." When later asked whether he would
follow the court's charge not to take the petitioner's failure to
testify into consideration, Dr. Simmons stated, "I have never had
to do it so I can't tell you with certainty. All I can tell you I
could try my best to do it." He thereafter stated that he could
set aside his own feelings and apply the law as given in the
charge. Reading Dr. Simmons' testimony most favorably to
Wicker, it is uncertain whether Dr.
Simmons would consider Wicker's failure
to testify as evidence of guilt.
At the habeas corpus evidentiary
hearing, however, one of Wicker's trial
lawyers testified that he nonetheless wanted Dr. Simmons on the
jury because Simmons was a young mechanical engineer. Counsel
wanted someone on the jury who had an "analytical constitution," a
person who would carefully review the medical evidence presented,
and who might accept the defense's main theory that the state
failed to prove beyond a reasonable doubt that the cause of death
was by "choking" or "burying alive," as was alleged in the
indictment. In accepting Dr. Simmons as a juror, defense counsel
reached a strategic decision, a decision of the kind that able
defense counsel frequently make. This is effectiveness, not
also contends that defense counsel were ineffective for failing to
make a motion for mistrial and for failing to ask members of the
venire about community attitudes "when the atmosphere in Galveston
County on the subject of rape became one of extreme fear and rage
two days after jury selection began." Both of the defense counsel
testified at the evidentiary hearing that they did not desire a
change of venue for strategic reasons. In their professional
judgment, they considered Galveston County to be a more
cosmopolitan area and to have a "better record" than most places
in Texas for trial of capital cases.
Indeed, during voir dire, when
news articles on rapes in Galveston appeared, one of the defense
lawyers prepared a motion for mistrial. After consulting with the
court, however, he elected to withhold his motion pending
completion of the voir dire, in order to determine the impact of
the various news articles on the jury. Counsel's feeling during
voir dire was that the jury was not "overwhelmed" by the event. He
also observed that at least the first ten jurors resided outside
Galveston. Nonetheless, on January 29, 1981, defense counsel
presented their motion for mistrial based on community coverage of
rapes and a hearing was held. The trial court reviewed all the
evidence and denied the motion for mistrial.
Implicit in the trial court's
denial is a factual determination that the pretrial publicity
about rapes in Galveston did not create the kind of "wave of
public passion" that would have made a fair trial unlikely. This
implicit factual determination is entitled to a presumption of
correctness under 28 U.S.C. Sec. 2254(d).21
Our independent review of the record confirms that counsel's
failure to raise the issue earlier or to seek to examine the
members of the venire about community attitudes was not an
omission constituting ineffective assistance of counsel, nor does
the record show how it prejudiced Wicker.
The district court correctly found that Wicker
failed to demonstrate either any deficiency on the part of counsel
or actual prejudice.
also challenges counsels' effectiveness because of the alleged
failure to make complete objections to certain closing arguments
by the state at the guilt phase. After the prosecutor stated that
the deceased was raped, Wicker's counsel
objected to the argument and the objection was sustained, but
Wicker faults counsels' failure to seek
an instruction to disregard the argument. One of the defense
lawyers testified at the evidentiary hearing that the primary
purpose of his objection was to alert the jury that there was not
"very good evidence" of rape and to have a chance to speak to the
jury while the state was arguing. While it might have been better
for him to have pursued the matter further and seek an instruction
to disregard the argument, we fail to perceive resultant prejudice
under the Strickland standard.
also complains that the state in closing argument argued a theory
not covered by the charge against him. The prosecutor stated that,
if Wicker "intentionally choked the girl,
... intentionally stuck her head in sandy water or ...
intentionally buried her, ... this is sufficient to prove capital
murder." Defense counsel objected to the argument on the ground
that it was contrary to the court's charge, and the trial court
instructed the jury that they were to be governed by the charge.
Wicker again faults counsel for failing
to request an instruction to the jury to disregard the statement.
The trial court, however,
instructed the jury to follow the court's charge and the charge
included proper jury instructions on the cause of death. Applying
the Strickland standard, we, therefore, perceive no prejudice to
Wicker, nor do we see how either argument
would have constituted reversible error had the points been
properly preserved and raised on appeal.22
challenge to counsels' effectiveness at the punishment phase
centers on his attorneys' decision to present the psychiatric
testimony of two doctors. Wicker asserts,
first, that counsel failed to conduct a reasonable investigation
of the potential testimony before putting the witnesses on the
stand; and, second, that both doctors' testimony was fatally
unfavorable to Wicker. The doctors
testified that Wicker has an antisocial
personality and that antisocial personalities "repeat the pattern."
Such persons, according to the experts' testimony, cannot learn
from past experience. Their violent behavior tends to increase
rather than abate.
At the federal habeas corpus
evidentiary hearing, defense counsel testified that they were
aware that parts of the doctors' testimony might be harmful to the
defense on the issue of future dangerousness. Nonetheless, they
called the doctors in order to attempt to establish that
Wicker had previously sought psychiatric
help and to show that he was suffering from a recognized
psychiatric disease, which was heightened by drug and alcohol
abuse, for Wicker had stated in his
confession that, immediately before committing the crime, he had
drunk gin and taken drugs. Counsel wanted to show that
Wicker's situation was not hopeless--his
violent sexual tendencies toward women would "burn out" as he aged,
and the factors stimulating these impulses (women, alcohol, and
drugs) would not be available to him in prison. They hoped to
establish that, if the precipitating factors were removed,
Wicker's propensities to commit
antisocial acts against women would decrease and he would not be a
future danger to society. Defense counsel viewed the evidence
presented by the state in the punishment phase as devastating, for
the state had shown that Wicker had been
convicted twice previously of felonies involving assault and rape
and once of a misdemeanor after the charge of a similar assault
had been reduced. In addition, two females, one a particularly
young and attractive college student, had testified in the
sentencing hearing that Wicker had
Defense counsel testified that
they believed that the jury would assess the death penalty "if
something wasn't done," and that they therefore took what they
called a "calculated risk" in presenting the psychiatric testimony.
In their professional judgment, this presented the jury with a
reasonable alternative to the imposition of death. One of defense
counsel testified that, even with the benefit of hindsight, he
would make the same decision again. The district court, therefore,
was amply supported by the record in finding that the decision to
call these witnesses constituted trial strategy formulated after a
reasonable inquiry into the relevant facts and alternatives.23
Two lawyers were appointed by
the state court to represent Wicker. One
of them had practiced almost a decade and had worked as a
prosecutor for more than five years. After the less-experienced
lawyer had withdrawn before trial on medical advice, due to the
stress of his assignment, another was appointed. He was an
experienced trial lawyer certified as a criminal law specialist.
Each diligently fulfilled his assignment. The state record in this
case, including the testimony on motions to suppress, contains
twenty-four volumes. We have read all of it. Counsel conducted an
able defense and fought the prosecution every step of the trial.
This does not mean, of course, that they could not have made an
error, but, having reviewed each of the asserted errors of trial,
we agree with the district court that the lawyers cannot be
stigmatized as "ineffective."
Finally, petitioner attacks
counsels' performance on appeal, relying on Evitts v. Lucey.24
As we held in Schwander v. Blackburn,25
the Strickland standard applies to claims of ineffective
assistance of counsel on appeal and requires proof showing both a
failure of counsel to perform according to reasonable professional
standards and prejudice.
Unlike Lucey's counsel,
Wicker's defense counsel perfected the
appeal, raised and extensively briefed a number of issues. They
testified that they prepared the appellate brief jointly, working
fulltime on it for a period of eight to ten days. The fact that
counsel did not argue every possible point on appeal, but, as they
testified at the federal habeas corpus hearing, researched all
issues and raised only those that they thought had some plausible
merit, represented the kind of strategy that able counsel pursue
and appellate courts appreciate.26
We find neither ineffectiveness nor resulting prejudice in
counsels' failure to raise on direct appeal the admission of the
hypnotically-enhanced testimony of Ms. Barthell; the exclusion of
Veronica Leong, a member of the venire; the failure to contest the
alleged cause of death; or the district court's failure to charge
the jury on the lesser-included offenses of involuntary
manslaughter and kidnapping.
contends that the discovery of the victim's body and the other
physical evidence found at Crystal Beach violated the fourth
amendment because it resulted from an illegal arrest and
statements given after that arrest. The state trial court found
that the police did not have probable cause to arrest
Wicker in Houston. But the court also
found that, despite Wicker's being
subjected to a police officer's version of the "Christian burial"
during the return trip from Houston to Beaumont, all of
Wicker's oral and written statements,
whether or not admissible, were voluntary and were untainted by
the arrest. The trial court also found that the body and items
located on the beach would inevitably have been discovered by law
enforcement officers or private citizens, had
Wicker not taken police to the scene. These findings were
upheld on appeal to the Texas Court of Criminal Appeals.
The state contends that Stone v.
bars review of petitioner's fourth amendment claim because the
claim was fully and fairly litigated in the state trial court and
on direct appeal. This is supported by Fifth Circuit precedent,
for in Billiot v. Maggio,29
we stated: "Federal courts possess no authority in habeas
proceedings to scrutinize a state court's application of fourth
amendment principles absent a showing that the petitioner was
denied a full and fair opportunity to litigate a claim arising out
of a putatively illegal search or seizure."30
Our independent review of the state court record in this case does
not suggest that Wicker's opportunity to
contest the admissibility of the physical evidence relating to the
body's discovery was in any way circumscribed. The Texas state
courts found that both the Beaumont and Galveston statements were
untainted by the illegal arrest and that, in any event, all
evidence relating to the body was admissible under the "inevitable
discovery" doctrine, discussed by the United States Supreme Court
in Nix v. Williams.31
The record shows that, once the
police knew of Wicker's impending return,
they decided to wait to see whether he would disclose where the
body was. If he did not (or could not) they planned a further
search of the beach area using a technique known as grid or
circular search, and using a grader to scrape the top layer of
sand lightly to attempt to uncover the body. Although the
circumstances of this case and those in Nix v. Williams are
we cannot say that the state courts' determination that the state
proved by a preponderance of the evidence33
that the body would have inevitably been discovered is without
fair support in the record.
challenges both the Beaumont and Galveston statements as
involuntary despite the state trial judge's findings that both
were voluntary. While the Beaumont confession was not introduced
into evidence, the argument runs that the Galveston confession was
involuntary because it tracked the Beaumont statement and was
given in exchange for promises of psychiatric help. In oral
argument, Wicker also contended that the
totality of the circumstances leading up to the Galveston
statement proves it to be involuntary, relying on the Supreme
Court's holding in Miller v. Fenton34
that the issue of voluntariness of a defendant's confession "is a
legal question requiring independent federal determination."35
The Court there explained, "[t]o be sure, subsidiary factual
questions, such as ... whether in fact the police engaged in the
intimidation tactics alleged by the defendant ... are entitled to
the Sec. 2254(d) presumption."36
However, "the ultimate question whether, under the totality of the
circumstances, the challenged confession was obtained in a manner
compatible with the requirements of the Constitution is a matter
for independent factual determination."37
In accordance with the Miller
rule, the federal district court correctly accorded a presumption
of correctness to the state trial court's factual finding that the
Galveston confession was not induced by a promise of psychiatric
help. This finding is not clearly erroneous. Neither do we find
the federal district court's ultimate conclusion that the
Galveston statement was freely and voluntarily given in error.
Miller requires us to review independently all the circumstances
surrounding the giving of the statement, and we have done so. In
this case, by the time the Galveston confession was made,
Wicker had spoken to his mother and to
his grandfather, had received the advice of counsel, and had been
given Miranda warnings at least five times. It is undisputed that
Wicker returned to Texas to "straighten
out" the situation. His allegations that the police used strong-arm
tactics to secure the Galveston statement are contradicted by the
testimony of four witnesses, whom the state trial court credited.
We find, after a plenary review of the record, that
Wicker's Galveston statement was
knowingly and voluntarily made.
For the reasons stated above, we
AFFIRM the district court's judgment denying
Wicker's petition for federal habeas relief.
798 F.2d 155
O.L. McCOTTER, Director, Texas Department of Corrections,
United States Court of Appeals,
Aug. 23, 1986.
Appeal from the United States
District Court for the Southern District of Texas.
Before GEE, RUBIN, and JONES,
ALVIN B. RUBIN, Circuit Judge:
Chester Lee Wicker was
convicted of capital murder and sentenced to death. He now comes
to this court for the second time seeking habeas corpus relief
on two grounds. The district court found each of Wicker's claims
to be meritless and denied him the certificate of probable cause
that is required for an appeal to this court.
We agree with the district
court that Wicker now presents no issue that jurists of reason
would consider debatable and, therefore, affirm the orders
denying him both a certificate of probable cause and a stay of
The facts of this case are
discussed fully in our opinion addressing Wicker's previous
habeas corpus petition.
The procedural history is as follows:
On February 5, 1981, in the
56th Judicial District Court of Galveston County, Texas, Wicker
was convicted of the murder of Suzanne Knuth in April, 1980, and
sentenced to death. The evidence showed that Wicker had abducted
Knuth, assaulted her, and then buried her in a shallow grave on
a beach near Galveston, Texas. There was evidence that, although
critically wounded, Knuth may have been alive when buried.
Wicker's conviction and
sentence were affirmed by the Court of Criminal Appeals of Texas
and certiorari was denied by the Supreme Court of the United
States on October 9, 1984.
Wicker then filed an
application for a writ of habeas corpus and motion to withdraw
the death warrant in a Texas state court on January 17, 1985.
That application was denied by the trial court and, on January
23, 1985, Wicker's counsel presented the application to the
Court of Criminal Appeals of Texas where it was denied without
opinion on February 4, 1985.
On February 5, 1985, Wicker
filed an application for a writ of habeas corpus and a motion
for stay of execution in the United States District Court for
the Eastern District of Texas, Galveston Division. The court
granted Wicker's motion and stayed his execution pending further
order on February 6, 1985.
By a separate order, the
district court granted Wicker an evidentiary hearing which was
set for April 9, 1985, and held on April 9 and 10. Finding no
merit in his claims, the district court denied Wicker's petition
on June 26, 1985. We heard oral argument, considered the case
fully, and, in a written opinion, affirmed the district court
judgment on February 18, 1986. Again Wicker sought consideration
by the Supreme Court, and again certiorari was denied.
Thereafter, on July 25, 1986,
Judge Larry Gist, sitting as judge in the 56th Judicial District
Court of Galveston County, resentenced Wicker to be executed by
lethal injection on August 26, 1986. On August 18, 23 days later,
but only eight days before the sentence was to be carried out,
Wicker filed a second application for writ of habeas corpus in
the Texas trial court and a motion to withdraw the death warrant.
He filed a motion for stay of execution with the Texas Court of
Criminal Appeals the following day.
Both courts denied relief on
August 20, 1986. He then turned to federal district court again,
where he filed a petition for habeas corpus and stay of
execution on August 21, 1986. District Judge Hugh Gibson entered
a judgment denying him relief on August 22, 1986, together with
a statement of reasons, and refused to issue a certificate of
Wicker, a white male, asserts
that he has been denied equal protection of the laws because in
Texas the death penalty is arbitrarily imposed based on the race
of the victim: regardless of the race of the defendant, if the
victim is white, he asserts, prosecutors more frequently charge
the defendant with capital murder and seek the death penalty
than prosecutors do when the victim is of another race.
Wicker also charges that a
defendant of any race who is tried for capital murder of a white
person has a significantly greater likelihood of being convicted
and sentenced to death than a defendant who is charged with
murder of a victim of another race.
Although this circuit has
never addressed the question of whether discrimination against a
defendant based solely upon the race of his victim denies the
defendant equal protection of the laws, we have held repeatedly
held that discrimination against defendants because of their own
race, economic status, or sex constitutes an equal protection
A claim such as Wicker's has,
however, been considered by the Eleventh Circuit Court of
Appeals employing traditional equal protection analysis.
But even assuming that Wicker has stated a valid claim, the
statistical evidence upon which he relies remains inadequate
under current Fifth Circuit
and Eleventh Circuit
law, to show that he has been the victim of discrimination. In
Prejean v. Maggio,
To create a fact issue
warranting an evidentiary hearing, a statistical proffer must be
"so strong that the results would permit no other inference but
that they are the product of racially discriminatory intent or
purpose." Smith v. Balkcom, 671 F.2d 858, 859, modifying 660
F.2d 573 (5th Cir.), cert. denied, 459 U.S. 882, 103 S.Ct. 181,
74 L.Ed.2d 148 (1982). Prejean's tender does not meet this
Smith v. Balkcom, Id., and Spinkellink v.
Wainwright, 578 F.2d 582 (5th Cir.1978), remain the touchstone
of our analysis. In both Smith and Spinkellink, we said the
proof must establish specific acts evidencing intentional or
purposeful discrimination "against the petitioner " on the basis
of race. Id. at 614 n. 40, quoted in Smith, 660 F.2d at 585 (emphasis
supplied in Smith ).
We are, of course, aware that
the Supreme Court has granted a writ of certiorari in McCleskey
v. Kemp in
which the issues stated include: Whether a proven disparity in
the imposition of capital sentences, reflecting a systematic
bias of death-sentencing outcomes against black defendants and
those whose victims are white, offends the eighth and fourteenth
amendments irrespective of its magnitude.
The Court has also granted a
writ in Hitchcock v. Wainwright
to consider inter alia: whether Hitchcock should be provided the
opportunity to prove at an evidentiary hearing his claim that
the death penalty is being arbitrarily applied in Florida on the
basis of race and other impermissible factors in violation of
the eighth and fourteenth amendments especially in view of the
new standards for evaluating such claims announced by the
Florida Court of Appeals.
The significance of the
Supreme Court's action in these two cases is not clear.
McCleskey is black and contends that the State of Georgia is
applying its death penalty in a manner that discriminates
In Berry we stated that we
were unable to determine whether Hitchcock's case involves the
identical situation. Whether the Court views the issues in these
cases as involving discrimination against black defendants or as
discrimination against all defendants, regardless of their race,
we cannot determine.
In the absence of a
declaration by the Supreme Court that executions should be
stayed in cases presenting the issue raised by Wicker, we must
follow our circuit's precedents and deny both a certificate of
probable cause and a stay of execution on this issue.
The grant of certiorari in
Hitchcock and McCleskey is insufficient per se to raise in this
case the requisite to a certificate of probable cause: that the
petitioner presents an issue that jurists of reason would
consider debatable on the evidence proferred to us,
but the fact that the Court has agreed to consider these cases
does not alter the authority of our prior decisions. We are,
however, releasing this opinion in time to permit Wicker to seek
review by the Supreme Court so that, if that Court considers it
advisable to review our opinion, it may issue a writ.
Wicker's second claim is that
he was denied due process, as guaranteed to him by the
fourteenth and fifth amendments to the Constitution, by the
introduction of evidence that the body of Suzanne Knuth was
found. Wicker contends that the body was discovered only as the
result of his having been illegally arrested and having made an
After a hearing whose scope
and fairness have never been challenged by Wicker, the state
court found that the body of the victim and her personal effects,
which were located on Crystal Beach, near Galveston Texas, would
inevitably have been discovered by law enforcement officers or
private citizens had Wicker not taken the police to the scene.
These findings were upheld by
the Texas Court of Criminal Appeals on appeal and, upon an
independent review of the record occasioned by Wicker's previous
habeas petition, sustained by this court.
At that time, we based our
holding on the Supreme Court decision in Stone v. Powell.
In an effort to dress up the same argument that has already been
rejected, Wicker presents it in another fashion, arguing that
our earlier decision is not controlling here, both because that
decision was based on the argument then made that his fourth
amendment rights had been violated and because the Stone v.
Powell-reconsideration bar applies only to fourth amendment
claims. Wicker asserts he is now making a different claim,
denial of due process, a violation of the fourteenth and fifth
The legal basis for Wicker's
current claim may be different but, at least in the present
instance, the result is the same. The question whether the body
would inevitably have been found is a question of fact, pure and
simple. If the evidence Wicker challenges would inevitably have
been discovered regardless of the wrongs he alleges he suffered,
it remains admissible.
In Townsend v. Sain,
the Supreme Court held that a federal evidentiary hearing on a
habeas claim adjudicated by a state court is required "unless
the state-court trier of fact has after a full hearing reliably
found the relevant facts."
By inference, if a state court
has conducted a full hearing and reliably found the relevant
facts, no federal hearing is required. The Court made this clear
by stating that a federal district court "may, where the state
court has reliably found the relevant facts, defer to the state
court's findings of fact."
Congress, thereafter, amended
the federal habeas corpus statute, 28 U.S.C. Sec. 2254, to
eliminate the discretion given a federal court. Section 2254 now
provides that, in a federal habeas corpus hearing on a state-prisoner
claim, "a determination after a hearing on the merits of a
factual issue, made by a State court of competent jurisdiction
in a proceeding to which the applicant for a writ ... [was a
party], evidenced by a written finding, written opinion, or
other reliable and adequate written indicia, shall be presumed
to be correct, "
unless the applicant shall establish one of the grounds stated
in the statute. None of these has been shown and indeed none of
them is urged. Instead, we are importuned to require a federal
district court to reconsider the evidence and to hold that the
state court was wrong. The statute forbids us that latitude.
Accordingly, it is ordered
that the applications for a certificate of probable cause and
for a stay of execution are DENIED. As a result the judgment of
the district court denying habeas relief is AFFIRMED.