Lackey v. Scott ( 1994 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-8529
_____________________________________
CLARENCE LACKEY,
Petitioner-Appellant,
VERSUS
WAYNE SCOTT, Director,
Director, Texas Department of Criminal Justice
Institutional Division,
Respondent-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
(August 2, 1994)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Clarence Lackey, a Texas death row inmate, appeals the
district court's decision denying his petition for writ of habeas
corpus. We affirm.
BACKGROUND
In 1983, a Texas jury found Clarence Lackey guilty of
capital murder.1 At the punishment phase of the trial, the jury
answered affirmatively the special issues submitted under the
former Tex. Code Crim. Proc. Ann. art. 37.071(b),2 requiring the
1
See Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1989),
for a detailed recitation of the facts.
2
At the time, the Texas capital sentencing statute required
the court to sentence the defendant to death if the jury returned
trial court to impose a death sentence. In 1989, the Texas Court
of Criminal Appeals affirmed Lackey's conviction and sentence.
See Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1989).
Shortly thereafter, the Supreme Court decided Penry v. Lynaugh,
492 U.S. 302 (1989). Lackey petitioned the Court of Criminal
Appeals for rehearing in light of that opinion. After
considering Lackey's Penry claims, the court affirmed the
judgment. See Lackey v. State, 819 S.W.2d 111, 128 (Tex. Crim.
App. 1991). Following this affirmance, Lackey sought a writ of
habeas corpus in state court, which was denied. Lackey then
filed a federal habeas petition and request for a stay of
execution. The district court granted the stay, and after
briefing and an evidentiary hearing, denied relief. This appeal
followed.
DISCUSSION
I. Penry Claims
affirmative findings on each of the following issues:
(1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation that
the death of the deceased or another would result;
(2) whether there is a probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was
unreasonable in response to the provocation, if any, by
the deceased.
Tex. Code Crim. Proc. Ann. art. 37.071(b). The first two issues
were submitted to the jury at the punishment phase of Lackey's
trial.
2
During the punishment phase of Lackey's trial, he requested
an instruction regarding mitigating evidence, which was denied.
On appeal, Lackey contends that the trial court's refusal to give
the requested instruction unconstitutionally restricted his
opportunity to present mitigating evidence. Specifically, Lackey
argues that, without the requested instruction, the Texas special
issues did not allow the jury to give mitigating effect to the
following evidence: (1) his intoxication at the time of the
offense; (2) his history of excessive drinking; (3) his low
intelligence; and (4) his childhood abuse. In support of his
arguments, he relies on the Supreme Court's decision in Penry,
492 U.S. at 302 (1989), and the cases that have clarified its
holding.
In Penry, the Supreme Court held that, absent additional
instructions to the jury, the Texas special issues did not permit
the jury to give effect to the mitigating evidence of Penry's
mental retardation and history of childhood abuse. According to
the Court, in the absence of an instruction defining the term
"deliberately" in the first special issue, the jury may have been
precluded from giving effect to their possible opinion that
Penry's mental retardation and history of childhood abuse made
him "less able than a normal adult to control his impulses or to
evaluate the consequences of his conduct" and thus less
personally culpable. Id. at 323. With respect to the second
issue, the Court found that the mitigating evidence was a double-
edged sword: it mitigated his culpability and at the same time it
3
indicated that he would be dangerous in the future. Id. at 324.
Finally, the evidence was not relevant to the third issue. The
Court concluded that the state court erred by not instructing the
jury that it could consider and give affect to the mitigating
evidence of Penry's mental retardation and childhood abuse by
declining to impose the death sentence.
Subsequent to Penry, the Supreme Court explained that a
state's refusal to give additional instructions does not amount
to constitutional error unless there is a "'reasonable likelihood
that the jury applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant
mitigating evidence.'" Johnson v. Texas, 113 S. Ct. 2658, 2669
(1993) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
Applying this standard, we hold that Lackey's mitigating evidence
did not require additional instruction.
At the punishment phase of the trial,3 Lackey called Dr.
Herbert Modlin, a psychiatrist and expert witness, to testify.
Dr. Modlin described Lackey as a "periodic drinker"))a person who
does not need daily drinks, but when he does drink, he often
drinks too much causing him to blackout. Dr. Modlin attributed
Lackey's crime to an alcohol-induced blackout that caused Lackey
to lose contact with reality and rendered him capable of engaging
in automatic behavior. Lackey adduced additional evidence that
3
Lackey bases his Penry claim on evidence proffered at a
hearing on federal habeas, as well as evidence proffered at his
trial. Our review, however, is limited to evidence presented at
trial. See, e.g., Anderson v. Collins, 18 F.3d 1208, 1214-15
(5th Cir. 1994).
4
his drinking problem was treatable, that he was a good candidate
for treatment, and that diagnostic and treatment facilities were
available to him in prison. Dr. Modlin concluded that, in his
expert opinion, Lackey was not likely to pose a future threat to
society.
We have previously stated that the Texas sentencing scheme
does not preclude the jury from giving mitigating effect to
evidence of a defendant's voluntary intoxication at the time of
the offense. See, e.g., James v. Collins, 987 F.2d 1116, 1121
(5th Cir.), cert. denied, 114 S. Ct. 30 (1993); Cordova v.
Collins, 953 F.2d 167, 170 (5th Cir.), cert. denied, 112 S. Ct.
959 (1992). Unlike Penry's mental retardation and childhood
abuse, "voluntary intoxication is not the kind of 'uniquely
severe permanent handicap[] with which the defendant was burdened
through no fault of his own' that requires a special instruction
to ensure that the mitigating effect of such evidence finds
expression in the jury's sentencing decision." Cordova, 953 F.2d
at 170 (quoting Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.
1992), aff'd, 113 S. Ct. 892 (1993)). "[E]vidence of voluntary
intoxication can be given full effect by the jury in deciding
whether the defendant acted deliberately." Id. Furthermore, the
sentencing jury could have reasonably taken into consideration
Dr. Modlin's testimony that Lackey would not be a future threat
to society in answering the second issue.4
4
Lackey attempts to characterize his propensity to overindulge
as a permanent handicap by claiming that he is an alcoholic. The
evidence does not, however, support is claim. Lackey presented
5
Likewise, no special instruction was necessary to effectuate
evidence presented on Lackey's history of childhood abuse or low
intelligence. At the sentencing hearing, Lackey's mother told
the jury that during his childhood she and Lackey were physically
abused by his father. With regard to his low intelligence, both
Lackey's mother and Dr. Modlin testified that Lackey did poorly
in school. Additionally, Dr. Modlin testified that Lackey's IQ
was below normal.5 This evidence was not relevant to the first
special issue because there was no suggestion that Lackey's
criminal act was attributable to his low intelligence or
childhood abuse. See Madden v. Collins, 18 F.3d 304, 307 (5th
Cir. 1994) (stating that to be relevant there must be a nexus
between the mitigating evidence and the criminal act). To the
contrary, Dr. Modlin testified that Lackey's background and
psychological profile could not explain his crime. Furthermore,
Lackey's trial counsel argued to the jury that the evidence of
Lackey's low intelligence and history of childhood abuse were not
offered to excuse Lackey's crime, but rather to show that he
would not be a future danger to society. We conclude that the
jury could have reasonably considered this evidence in answering
no expert diagnosis that he suffered from alcoholism. To the
contrary, Dr. Modlin described Lackey as a "periodic drinker."
5
Lackey attempts to characterize his poor academic record and
low IQ as mental retardation. This characterization is
unfounded. Although at age fourteen Lackey tested in the mildly
retarded range, Dr. Modlin explained that IQ tests are not
reliable until age sixteen. Tests given to Lackey after the age
of sixteen indicated below average intelligence, but not
retardation.
6
the second issue.
Because Lackey's mitigating evidence, as proffered, was
within the jury's effective reach, acceptance of Lackey's claim
would require this Court to announce a new rule of constitutional
law. Consequently, federal habeas relief is foreclosed. See
Teague v. Lane, 489, U.S. 288, 311 (1989).
II. Intoxication/Insanity Instruction
Lackey contends that the following instruction, given
pursuant to section 8.04 of the Texas Rules of Criminal
Procedure, prevented the jury from giving mitigating effect to
his evidence of voluntary intoxication at the time of the
offense:
You are instructed that under our law neither
intoxication nor temporary insanity of mind caused by
intoxication shall constitute any defense to the
commission of crime. Evidence of temporary insanity
caused by intoxication may be considered in mitigation
of the penalty attached to the offense.
By the term "intoxication" as used in this Charge
is meant that at the time of the conduct charged, the
defendant, as a result of voluntary intoxication,
either did not know that his conduct was wrong or was
incapable of conforming his conduct to the requirements
of the law which he has found to have violated.
Now, if you find from the evidence that the
defendant, Clarence Allen Lackey, at the time of the
commission of the offense for which he is on trial was
laboring under temporary insanity as above defined,
produced by voluntary intoxication as defined, that you
may take such temporary insanity into consideration in
mitigation of the penalty which you attach to the
offense for which you have found him guilty.
Lackey argues that the instruction precluded the jury from
considering mitigating evidence of voluntary intoxication that
did not rise to the level of temporary insanity. In effect,
Lackey is arguing that the jury was precluded from considering
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evidence that he did not ask them to consider. He did not
present evidence or argue at trial that his voluntary
intoxication amounted to anything less than temporary insanity.
Rather, he presented evidence that his criminal conduct was
attributable to an "alcoholic blackout," which caused him to lose
contact with reality and rendered him capable of engaging in
automatic behavior. Because Lackey failed to proffer evidence of
non-insane intoxication in mitigation of punishment, whether the
jury could properly consider it is not a proper subject for
habeas review. See Delo v. Lashley, 113 S. Ct. 1222, 1225 (1993)
("Nothing in the Constitution obligates state courts to give
mitigating circumstantial instructions when no evidence is
offered to support them.")
III. Interference of the Texas Capital Sentencing Scheme
With Counsel's Presentation of Evidence
Appellant argues that the Texas capital sentencing statute
unconstitutionally interfered with his trial counsel's ability to
make decisions about his defense. Specifically, Lackey argues
that because mental health evidence could be considered in
aggravation of the second special issue, the statutory scheme
prevented his trial counsel from developing and presenting
mitigating evidence about his mental condition. We have
considered and rejected this precise argument in previous cases.
See Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied,
112 S. Ct. 2983, (1992); May v. Collins, 948 F.2d 162, 166-68 (5th
Cir. 1991), cert. denied, 112 S. Ct. 907 (1991).
IV. Ineffective Assistance of Counsel
8
Lackey suggests that his trial counsel rendered ineffective
assistance by failing to produce a mental health expert to develop
a nexus between Appellant's childhood abuse and his violence as an
adult. He also suggests that his appellate counsel was ineffective
for failing to pursue a challenge to the state law prohibition
against informing jurors of the legal effect of a failure to agree
on answers to the special issues. Because Lackey did not raise
these claims before the state court on habeas review or the federal
district court,6 we cannot consider his claims here. Alexander v.
McCotter, 775 F.2d 595, 603 (5th Cir. 1985); see also Barnard v.
Collins, 958 F.2d 634, 643 n.12 (5th Cir. 1992), cert. denied, 113
S. Ct. 990 (1993).
V. Denial of Funds for expert assistance
Lackey contends that the trial court unconstitutionally denied
him funds for the assistance of non-psychiatric experts. The
district court correctly found that Appellant had procedurally
defaulted the claim in state court. Lackey did not request such
assistance on the record or obtain a ruling, and the state habeas
court held this claim was procedurally barred. When a state-law
default prevents the state court from reaching the merits of a
federal claim, that claim cannot be reviewed absent a showing of
6
On state habeas and on federal habeas before the district
court, Lackey claimed that his trial counsel was ineffective for
four reasons: (1) failure to request a competency trial; (2)
failure to object to the exclusion for cause of certain
prospective jurors; (3) failure to properly cross-examine trial
witnesses; and (4) failure to request an instruction on parole
during the punishment phase. None of these arguments encompasses
Lackey's arguments before this Court.
9
cause and prejudice. Ylst v. Nunnemaker, 501 U.S 797 (1991);
Cowart v. Hargett, 16 F.3d 642, 644-45 (5th Cir. 1994). Because
Lackey has not even attempted to argue cause and prejudice, we are
precluded from considering his claim.
VI. Punishment-phase Instructions Regarding Jury Agreement
Appellant claims his constitutional rights were violated by a
statutory prohibition against informing jurors of the effect of
their failure to agree on a punishment phase issue.7 The district
court properly held that this claim was procedurally barred. As
noted by the district court, the state habeas court rejected
Lackey's claim on the ground that he did not object to the jury
charge or request a special instruction. Furthermore, Appellant
has not argued circumstances permitting our review of his defaulted
claim.
VII. Failure to Define Reasonable Doubt
Lackey contends that the state court violated his
constitutional rights by refusing to apply retroactively the
principles of Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.
1991). In Geesa, which was decided after Lackey's trial but before
Lackey's conviction became final, the Texas Court of Criminal
Appeals announced a new rule requiring a definition of the term
"reasonable doubt" in jury instructions in criminal trials. The
state court also announced that the new rule would only apply to
criminal cases where the trial occurred after Geesa. Appellant
argues that Geesa is based on federal law, and therefore, Griffith
7
Tex. Code Crim. Proc. Ann. art. 37.071.
10
v. Kentucky, 479 U.S. 314 (1987), requires that it be given
retroactive treatment.
Contrary to Lackey's assertions, the rule announced in Geesa
was not required by the federal constitution or law. See Victor v.
Nebraska, 114 S. Ct. 1239 (1994) (stating that "the Constitution
neither prohibits trial courts from defining reasonable doubt nor
requires them to do so"); see also Thompson v. Lynaugh, 821 F.2d
1054, 1060-61 (5th Cir.), cert. denied, 483 U.S. 1035 (1987)
(noting that "attempts by trial courts to define 'reasonable doubt'
have been disfavored by this Court"). Thus, the federal
retroactive principles discussed in Griffith have no bearing on the
state's application of its new rule. See American Trucking Ass'ns
Inc. v. Smith, 497 U.S. 167, 177 (1990).
Alternatively, Appellant argues that the state court's refusal
to give retroactive application to Geesa violated his right to
equal protection. Because Lackey has not made any attempt to show
this Court that the state did not have a rational basis for its
refusal to apply the rule of Geesa retroactively, we reject
Lackey's claim. See Johnson v. Louisiana, 406 U.S. 356, 363-65
(1972).
VIII. Cumulative Effect of Errors
Lackey contends that the cumulative effect of the foregoing
alleged errors constituted an independent constitutional violation.
Because Lackey has not shown any error, much less constitutional
error, we must reject his contention.
IV. Execution After Long Imprisonment
11
Finally, Appellant notes that he has been on death row since
1983 and argues that executing him after his lengthy incarceration
"makes no measurable contribution to accepted goals of punishment."
He also argues that the addition of the death penalty to his
lengthy incarceration is "grossly out of proportion to his isolated
act." We will not address the merits of these arguments for two
reasons. First, Appellant raises these arguments for the first
time on appeal. See Alexander, 775 F.2d 603. Second, granting
Lackey the relief he seeks would require us to create a new rule.
See Teague, 489 U.S. 311.
CONCLUSION
For the foregoing reasons, the district court's denial of
Lackey's petition for writ of habeas corpus is AFFIRMED, and the
stay of execution issued by the district court is VACATED.
12