Capital Defense Weekly, April 15, 2002

By Capital Defense Newsletter
Apr 14, 2002

In this double issue two cases are hot listed,Langley v. LouisianaandKutzner v. Texas.

Reinforcing the need for counsel to search diligently and to the "four corners" of a case, relief granted and indictment quashed inLangley v. Louisiana, on the basis of racial discrimination in the selection of a grand jury foreman. The Louisiana Supreme Court offers a brilliant precedent on how to construct claims of racial bias infecting a capital case. The Louisiana Crisis Assistance Center, who successfully argued for Langley, has a materials relating to the developments of grand jury claims available athttp://www.lidb.com/Part%20K.htm.

The Texas Court of Criminal Appeals inKutzner v. Texashas denied a request for DNA testing. The Kutzner Court focuses the opinion on counsel's failure to show that the purpose of the request was for a reason other than "to unreasonably delay the execution of sentence or administration of justice."

The Focus section is not presented this week as this is a double issue. Additionally, in the week that saw theIllinois Commission on Capital Punishment Reportany other in depth examination of the death penalty would be fruitless. The report favors retention of the death penalty but noted: "The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death." The practical results, in the private words of one well known death penalty lawyer after reading the report has been noted as simply "This is the beginning of the end for capital punishment in the United States."

In other news of the week, former death row inmateRay Kronewas released from prison on Monday in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years ago; Ray is the 100th person so released. The Supreme Court has granted a stay in Abdur Rahman on the issue of the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.[Petition for Certiorari]

Contact information for the weekly has changed, the new contact information is Karl Keys; Capital Defense Weekly; PO Box 504; Bloomsbury, NJ 08804-0504.

Execution Information

Since the last edition the following have been executed:

April

2 Daniel Zirkle Virginia--volunteer

10 Paul Kreutzer Missouri

10 Jose Santellan Sr. Texas

11 William Burns Texas

Currently listed as "serious" are:

April

18 Gerald Casey Texas

26 Alton Coleman Ohio

30 Rodolfo Hernandez Texas

HOT LIST

Langley v. Louisiana, 2002 La. LEXIS 965 (LA 4/3/2002) Indictment quashed as the United States Supreme Court's decision in Campbell v. Louisiana compels reversal as there has "been intentional discrimination on the basis of race and/or gender in the selection of the foreperson for the grand jury that indicted Langley in 1992 in Calcasieu Parish."

In its lengthy reasons, the district court acknowledged Louisiana's "unique" method for selecting a grand jury foreperson, as it operated prior to its amendment in 1999. The district court, citing the United States Supreme [*16] Court's reasoning in Campbell v. Louisiana, supra, noted that Louisiana's now-repealed selection system implicated not only the appointment of the foreperson but, more intrinsically, the shaping of the composition of the panel itself and the possibility that there might be discrimination in doing so. The district court, again citing Campbell v. Louisiana, further noted that, by picking a member of the panel, not at random, "the judge has actually injected racial discrimination into the process." n11
* * * *
The State, though it belatedly (in its supplemental brief) attacks for the first time on appeal the accuracy of some of the defendant's data, after initially stipulating in the district court to the data gathered and introduced by the defendant, has provided no evidence to suggest that the percentages of African-Americans and women in the eligible population or the total grand jury venire would be significantly different statistically than that in the group or subset of actual grand jurors randomly selected from the grand jury venire. Consequently, we find that the combination of gross population statistics, voter registration rolls, and a profile of jurors who actually sat on grand juries that convened over a period of almost 20 years provided the district court with a reliable measure for computing on the basis of absolute disparities the degree of under-representation of women and African-Americans in the position of foreperson on grand juries in Calcasieu Parish and for drawing an inference of discriminatory intent therefrom.
Lastly, we address the State's contention that the district court erred in finding that the State had failed to rebut successfully the defendant's prima [*38] facie case of discrimination. The State contends that the testimony of the appointing judge was sufficient to rebut the presumption of intentional discrimination established by the defense. Citing United States v. Jenison, 485 F. Supp. 655 (S.D. Fla. 1979), and United States v. Holman, 510 F. Supp. 1175 (N.D. Fla. 1981), aff'd, 680 F.2d 1340 (11th Cir. 1982), the State argues that the appointing judge's statement that he chose Mr. Hicks because he thought the latter "was a good, responsible, stable citizen" negates any claim that racial or gender discrimination played a role in the selection of the foreperson of the grand jury that indicted the defendant. The State maintains that Mr. Hicks was selected for other than racial or gender reasons. The State also contends that discrimination in the selection of the grand jury foreperson does not violate the defendant's due process rights. Finally, the State argues that, because there has been no showing of purposeful discrimination against African-Americans or women, the defendant has failed to establish that a particular group has been singled out for different treatment.
We are bound [*39] by the primary holding of Campbell v. Louisiana that a white defendant has standing to challenge the exclusion of African-Americans as grand jurors and grand jury forepersons on equal protection and due process grounds. Id., 523 U.S. at 392-393, 118 S. Ct. at 1420. The exclusion of grand and petit jurors on the basis of race violates the jurors' equal protection rights. Id., 523 U.S. at 398, 118 S. Ct. at 1423, citing Carter v. Jury Com. of Greene County, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970). The Supreme Court in Campbell reasoned that, regardless of skin color, an accused suffers a "significant injury in fact when the composition of the grand jury is tainted by racial discrimination." Id., 523 U.S. at 398, 118 S. Ct. at 1423, citing Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). The remedy for intentional discrimination in the selection and composition of grand juries, whether resulting in the complete exclusion of an identifiable group or substantial under-representation of that group, is to vacate the conviction and quash the indictment returned [*40] by the unconstitutionally constituted grand jury. Vasquez v. Hillery, 474 U.S. 254, 262, 106 S. Ct. 617, 623, 88 L. Ed. 2d 598 (1986); Rose v. Mitchell, 443 U.S. at 551-52, 99 S. Ct. at 2997-98; Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950); Johnson v. Puckett, 929 F.2d 1067, 1071 (5th Cir.), cert. denied, 502 U.S. 898, 112 S. Ct. 274, 116 L. Ed. 2d 226 (1991).
The district court in this case applied the correct law to the defendant's motion to quash the indictment. As the district court noted, the Supreme Court set out a three-part test in Castaneda v. Partida, supra. To demonstrate an equal protection violation in the context of grand jury selection, a defendant must establish a prima facie case of purposeful discrimination by showing: (1) that those discriminated against belong to a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied; (2) that the degree of under-representation must be proved "by comparing the proportion of the group in the total population to the proportion called to serve [*41] as grand jurors, over a significant period of time;" and (3) that the selection procedure is "susceptible of abuse or is not racially neutral" so as to support the presumption of discrimination raised by the statistical showing. Castaneda v. Partida, 430 U.S. at 494-95, 97 S. Ct. at 1280; see also State v. Cosey, 97-2020, p. 10, 779 So. 2d at 682. This court has previously acknowledged that blacks and women are identifiable groups capable of being singled out for disparate treatment. State v. Cosey, 97-2020, p. 10, 779 So. 2d at 682, citing J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). This court has also recognized that, at the time the defendant was indicted, Louisiana's procedure for selecting grand jury forepersons was unquestionably subject to abuse according to subjective criteria that may include race and gender. Cosey, 97-2020, pp. 10-11, 779 So. 2d at 682-83, citing Campbell v. Louisiana, supra; Johnson v. Puckett, supra.
Here, the degree of under-representation alleged by the defendant is within the range [*42] accepted by the jurisprudence as sufficient to support a prima facie case of discrimination. Specifically, African-Americans comprised 21.6% to 22.9% of the pool of grand jurors randomly selected from the venire but only 6.1% to 7% of the grand jury forepersons selected by the judge from the venire, amounting to an absolute disparity ranging from 15.5% to 15.9%. With respect to women who made up 52.4% of the pool of actual grand jurors randomly selected from the venire, only 27.9% of the women were forepersons selected by the judge from the venire, thereby resulting in an absolute disparity of 25.4%. These absolute disparities were sufficient statistically to establish the degree of under-representation from which the district court could find that the defendant had established a prima facie case of intentional discrimination. Compare Castaneda v. Partida, 430 U.S. at 495-96, 97 S. Ct. at 1280-1281 (prima facie case shown where Mexican-Americans comprised 79.1% of the county's population but only 39% of those called for grand jury service)(absolute disparity of 40.1%); Turner v. Fouche, supra (blacks comprised 60% of the general population [*43] but 37% of the grand jury lists)(absolute disparity of 23%); Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967)(blacks comprised 27.1% of the tax digest but only 9.1% of the grand jury venire) (absolute disparity of 18%); Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25 (1967)(19.7% of blacks on tax lists but only 5% of grand jury lists)(absolute disparity of 14.7%). The inference of discriminatory intent arising from these disparities with regard to the selection of grand jury forepersons is not dispelled by the presence of other minority members on the panel in rough proportion to their percentage in the general population. See Cassell v. Texas, 339 U.S. at 287, 70 S. Ct. at 632. Given this evidence in the record, we discern no manifest error in the district court's conclusion that the defendant established a prima facie case of purposeful discrimination under the three-part test of Castaneda v. Partida.
Once the defendant has shown under-representation of the particular group, he has made out a prima facie case of discriminatory purpose, and the burden of proof then shifts to the state [*44] to rebut the case. Castaneda v. Partida, 430 U.S. at 495, 97 S. Ct. at 1280. Through the completion of the evidentiary hearing in the district court, and until the State filed its supplemental brief in this court one week before oral argument, the defendant's data and statistics went unrefuted. Rather than challenge the numerical and statistical evidence in the district court, and thereby alert the district court judge to any alleged unreliability in the defendant's evidence, the State called the appointing judge, whose testimony did little to rebut the defendant's prima facie case. Instead, the appointing judge's testimony enhanced the defendant's case by exposing the selection process he used, which had resulted in his not having chosen any African-Americans or women during his selection of grand jury forepersons, even though a number of minority persons were eligible. The State's case, which consisted mainly of the appointing judge's denial of discrimination in the selection of Mr. Hicks as the foreperson, failed to rebut the defendant's statistical and testimonial evidence.
The Supreme Court has said that "a selection procedure that is susceptible of abuse [*45] or is not racially neutral supports the presumption of discrimination raised by the statistical showing." Castaneda v. Partida, 430 U.S. at 494, 97 S. Ct. at 1280. The fact that the appointing judge selected only people that he knew or thought he knew, combined with his admission that he knew primarily white persons, and his testimony that, of the people he knew on the grand jury list, the overwhelming majority were men, indicates that the process employed by the judge had the effect of limiting the selection of the grand jury foreperson to a group made up predominately of white men. Thus, African-Americans and women were intentionally, even if without malice, excluded from the pool of potential grand jury forepersons. In the absence of other evidence, we cannot say that this particular procedure utilized by the judge was based solely on objective criteria related to the functions of a grand jury foreperson. Moreover, as we have previously observed, it was a selection process susceptible of abuse.
In a factually comparable case, the Supreme Court found proof of intentional exclusion of minorities. In Cassell v. Texas, supra, the jury commissioners, [*46] like the appointing judge here, testified that they chose prospective jurors only from those people with whom they were personally acquainted. They also testified that they did not know any black people who were eligible, even though blacks made up a large portion of the population. The Supreme Court said that, in proving discrimination, it is sufficient to have direct evidence based on the statements of the jury commissioners in the very case. The Supreme Court found that the commissioners' statements "prove the intentional exclusion that is discrimination in violation of petitioner's constitutional rights." Cassell, 339 U.S. at 290, 70 S. Ct. at 633, 94 L. Ed. 2d at 849.
Given the paucity of the State's evidence in rebuttal, and the strength of the defendant's unrefuted statistical evidence, we cannot reasonably conclude that the district court abused its discretion in granting the defendant's motion to quash the indictment. Accordingly, we affirm the district court's ruling.

Kutzner v. Texas, 2002 Tex. Crim. App. LEXIS 81 (Tex Crim App 4/10/2002) Request for DNA testing denied as the request comes just days before a schedule execution date and the purpose for the request appears to be "to unreasonably delay the execution of sentence or administration of justice."

III. The Merits Of Appellant's Chapter 64 DNA Appeal
A.
In point of error one, appellant claims that in denying his motion for DNA testing the convicting court erroneously applied a "sufficiency of the evidence" standard instead of Article 64.03(a)(2)(A)'s "reasonable probability" standard of whether appellant "would have been convicted or prosecuted in light of exculpatory DNA tests." Appellant argues that "[b]ecause the [convicting] court limited its review to the sufficiency of the State's case at trial, it could not correctly assess whether the information that has emerged since the trial, coupled with exculpatory DNA test results, would undermine confidence in the jury's verdict."
The record does not support appellant's claim that the convicting court limited its consideration to the sufficiency of the evidence presented at appellant's trial. Appellant concedes as much in his brief by recognizing that the convicting court "entered only three findings addressing evidence outside of the trial record." Point of error one is overruled.
B.
In point of error two, appellant claims that the convicting court erroneously determined under Article 64.03(a)(2)(A), that appellant failed to establish by a preponderance of the evidence that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. In point of error three, appellant claims that the convicting court erroneously determined under Article 64.03(a)(2)(B) that appellant failed to prove by a preponderance of the evidence that his request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
It will be helpful to an understanding of our disposition of these points to set out the evidence presented at appellant's trial. Appellant was convicted in September 1997 of a capital murder that was committed in January 1996. See Kutzner, 994 S.W.2d at 182-84. Identity was the main contested issue at appellant's 1997 trial. See id. The evidence from appellant's trial showed that the victim's body was discovered in her real estate business office. See id. The victim's wrists were bound with red electrical wire. The victim's neck and ankles were bound with plastic tie wraps. See id. A computer keyboard and a videocassette recorder were missing from the victim's office. See id.
Police seized red electrical wire from appellant's home and from appellant's repossessed truck. This red electrical wire bore the same manufacturer's number as that on the red electrical wire which bound the victim's wrists. See id. Evidence was presented at trial that this wire was manufactured in New York and was not common in the area where the offense occurred. See id.
The police also seized plastic tie wraps from appellant's driveway, from his garage and from his repossessed truck. See id. These tie wraps were similar to those found around the victim's neck and ankles. See id. An FBI toolmark examiner determined that the tie wraps around the victim's neck and ankles had been cut with tin snips that were recovered from appellant's repossessed truck. See id.
The police seized the victim's videocassette recorder from the residence of a person named Roy Landry who had known appellant for many years and who had worked for appellant in appellant's air conditioning repair business. See id. Landry testified at appellant's trial that he received the videocassette recorder and the victim's computer keyboard from appellant. See id. Landry testified that appellant subsequently retrieved the computer keyboard. See id. Another witness testified that appellant brought her the computer keyboard. See id. Another witness testified that appellant stated to him several times that tie wraps would be good things to use to kill someone. See id. The State also introduced into evidence a note that was found in the victim's real estate office. This note was in the victim's handwriting and it contained appellant's alias, appellant's wife's nickname, appellant's phone number, appellant's street address and a reference to two big dogs. The evidence showed that appellant owned two big dogs. During the punishment phase of appellant's trial, the State presented evidence that, about two and a half weeks before this offense, appellant murdered another woman under circumstances strikingly similar to those present in this case. See id.
Appellant was also convicted and sentenced to death for this other murder, and we affirmed this conviction and sentence on direct appeal in an unpublished opinion. See Kutzner v. State, slip op. at 33 (Tex.Cr.App. No. 72,805, delivered January 13, 1999) (nonpublished) ("Kutzner II"). Overwhelming circumstantial evidence establishes appellant's guilt in Kutzner II. See Kutzner II, slip op. at 2-7. Among other things, the evidence from Kutzner II shows that the victim's legs, neck and wrists were bound with plastic tie wraps similar to the ones used in this case. See Kutzner II, slip op. at 3.
1. ARTICLE 64.03(a)(2)(A)
In this Chapter 64 proceeding, appellant requests DNA testing of fingernail scrapings recovered from the victim during her autopsy, of a strand of white hair recovered from the tie wrap around the victim's neck, and of a small black hair recovered from a piece of cellophane on the victim's body. Appellant claims that if this testing is favorable to him, a reasonable probability exists that he would not have been prosecuted or convicted in light of "new" post-trial information which appellant claims significantly weakens the State's original case against him.
The State responds that none of these alleged weaknesses in its original case would result in a reasonable probability that appellant would not have been prosecuted or convicted if exculpatory DNA results are obtained. The State further argues that:
[i]n light of the overwhelming evidence of Appellant's guilt, DNA results from the victim's fingernail scrapings would only be significant if Appellant's DNA were found since an accidental scratch could put someone else's DNA under the victim's fingernails. DNA results from the hairs found would also only be significant if a match were made to Appellant because the hairs were found in a common area of a real estate office and anyone's hair could be on the floor.
The resolution of appellant's claims presented in point of error two requires us to construe the Article 64.03(a)(2)(A) phrase "a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." We also decide that this phrase can have different meanings, and is, therefore, ambiguous. It could be interpreted to require a convicted person to show a reasonable probability exists that favorable DNA results would prove his innocence. (20) It could also be interpreted to require a convicted person only to show a reasonable probability exists that favorable DNA results would result in a different outcome unrelated to the convicted person's guilt/innocence. (21) We will, therefore, resort to extratextual sources to construe the foregoing language from Article 64.03(a)(2)(A). (22) See Jordan, 36 S.W.3d at 873.
The legislative history of Chapter 64 makes it very clear that the Legislature intended the foregoing language from Article 64.03(a)(2)(A) to mean a reasonable probability exists that exculpatory DNA tests will prove a convicted person's innocence. (23) This does not, as some opponents of Chapter 64 suggest, require convicted persons to prove their innocence before a convicting court may order DNA testing under Article 64.03. (24) It merely requires convicted persons to show a reasonable probability exists that exculpatory DNA tests would prove their innocence. The legislative history is so clear that this is what the Legislature intended that any other construction would violate the judiciary's ultimate duty to effectuate what the Legislature intended when it enacted the statute. See Boykin, 818 S.W.2d at 785. It would be difficult in this particular case to ignore the clear legislative intent repeatedly expressed throughout the legislative history of Chapter 64 and construe the statute any other way. (25)
When measured against this legal standard, we cannot say that the convicting court erroneously determined that appellant failed to establish the Article 64.03(a)(2)(A) requirements by a preponderance of the evidence. (26) No reasonable probability exists that exculpatory DNA tests on the evidence for which appellant seeks DNA testing would prove appellant's innocence. At most, exculpatory DNA tests on this evidence would "merely muddy the waters." (27)
The language of Article 64.03(a)(2)(A) and its legislative history also do not contemplate a consideration of appellant's "new" post-trial information. And, assuming that Article 64.03(a)(2)(A) does permit a consideration of this "new" post-trial information, appellant's request for DNA testing must still fail.
Appellant claims that "new" information (28) exists establishing that a third item-a tape recorder--was taken from the victim's real estate office at the time of her murder. Appellant claims that this is significant because this tape recorder was recovered from the victim's husband about a month after the murder. Appellant argues that this weakens the State's case against him because the State's theory was that only two items (the videocassette recorder and the computer keyboard) were taken from the victim's real estate office and the State "devoted a substantial portion to capitalizing on the false impression that everything stolen from [the victim] led back to appellant, thus eliminating the possibility that anyone else could have killed the victim." Appellant also points to evidence that the victim and her husband had a "tumultuous" relationship and to other evidence that appellant claims points the finger of guilt at the victim's husband and others. (29)
Appellant's "new" post-trial information, however, merely indicates that one of the victim's co-workers could state only that "to his knowledge" the victim had never removed the tape recorder from her office. And, in its response to appellant's motion for DNA testing, the State presented an affidavit in which the lead investigator in this case swore that the tape recorder "was determined to have been taken before the day of [the victim's] murder, and was not considered to be an item taken in the course of the capital murder."
More important, appellant's "new" post-trial information which appellant claims points the finger of guilt at the victim's husband and others does not explain how these other potential suspects could have come into possession of appellant's tin snips that were used to cut the tie wraps around the victim's neck and ankles. (30) This information also does not explain how appellant came to possess the victim's videocassette recorder and her computer keyboard.
Appellant also complains that the State "used an admittedly pretextual arrest to secure the cooperation of [Landry], its star witness against [appellant]" and that it is just as likely that Landry murdered the victim. Appellant asserts that Landry "also possessed the same tie-wraps in his van and at his house." Appellant provides no citation to the record to support this assertion and we have found nothing in the record to support it. Even if the record supports this assertion, this information still does not explain how Landry could have come into possession of appellant's tin snips. In addition, the jury convicted appellant even after hearing evidence that Landry had been convicted of attempted murder and that Landry had a "basket full" of electrical wire
We decline to disturb the convicting court's Article 64.03(a)(2)(A) determination that appellant failed to establish by a preponderance of the evidence that a reasonable probability exists that appellant would not have been prosecuted or convicted "if exculpatory results had been obtained through DNA testing." Point of error two is overruled.
2. ARTICLE 64(a)(2)(B)
In this proceeding, appellant presents various excuses for why he filed his Chapter 64 motion for DNA testing just nine days before his scheduled execution date. Among other things, he claims that during his 1997 trial the prosecution "concealed the evidentiary value of the fingernail scrapings" by creating a false impression that it could not be tested for DNA evidence because it contained no blood. Appellant also claims that the prosecution suppressed the strand of white hair recovered from the tie wrap around the victim's neck and that appellant's counsel did not discover this evidence until June 2001. (31) Appellant presents no excuse for why he did not previously request DNA testing on the black hair found on the piece of cellophane on the victim's body.
The State claims that appellant's "serious accusations of prosecutorial misconduct are meritless and unsupported by the evidence in this case." The State further claims that appellant "presents no competent evidence showing that the State concealed evidence, and Appellant could have demanded DNA testing before his trial of at least two, if not all three, of the items." The State claims that appellant's Chapter 64 motion for DNA testing was made to unreasonably delay his execution because appellant's counsel could have requested DNA testing of these items during trial, the direct appeal, the state habeas proceedings and the federal habeas proceedings.
Article 64.01(b)(1)(B), Texas Code of Criminal Procedure, provides:
(b) The motion may request forensic DNA testing only of evidence described by Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but:
(1) was not previously subjected to DNA testing:
(A). . . .
(B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing;
The legislative history fails to clearly state what the Legislature meant by this provision. The House Research Organization Bill Analysis of Senate Bill 3 states that DNA testing could be requested "if testing previously was not done through no fault of the offender and if the interests of justice required the testing." (32)
During the March 21, 2001, House Debates, Representative Dutton offered a substitution for current Article 64.01(b)(1)(B) that would have stated "for any reason other than the refusal of the defendant to permit DNA testing." (33) Representative Dutton explained this meant that the convicted person made a conscious decision not to permit DNA testing. The House rejected Representative Dutton's substitution.
In this case, we find it unnecessary to decide exactly when appellant could have previously requested DNA testing. He offers no excuse for not previously requesting DNA testing of the black hair on the piece of cellophane. Appellant raised the same prosecutorial misconduct claims regarding the other two items of evidence in a successive habeas corpus application which this Court dismissed as an abuse of the writ. Ex parte Kutzner, No. 40,8730-02 (dismissed July 24, 2001) (nonpublished). Thus applicant could previously have raised these claims. See Article 11.071, Section 5, Texas Code of Criminal Procedure. It is also significant that there is overwhelming circumstantial evidence of appellant's guilt in Kutzner II, that the Kutzner II offense is "strikingly similar in many ways" to this offense, and that appellant does not contest his identity as the murderer in Kutzner II, nor does he claim that Landry, the victim's husband in this case or anyone else committed the Kutzner II offense.
Based on these factors and the foregoing discussion, we decline to disturb the convicting court's Article 64.03(a)(2)(B) determination that appellant failed to prove by a preponderance of the evidence that his request for DNA testing "is not made to unreasonably delay the execution of sentence or administration of justice." Point of error three is overruled.
C.
In point of error four, appellant claims that this Court should vacate the convicting court's order and remand the case there for further proceedings because the convicting court's findings of fact fail to resolve the majority of the facts necessary to decide whether appellant is entitled to DNA testing and whether he has filed his motion for purposes of delay. In point of error five, appellant claims that this Court should vacate the convicting court's order because it is clearly erroneous and not the product of a careful or independent judicial determination. Based on our disposition of points of error two and three, this is unnecessary. Points of error four and five are overruled.
The judgment of the convicting court is affirmed.

SUPREME COURT

Abdur' Rahman v. Bell, --- U.S. --- (U.S. 4/8/2002) Stay granted on the issue of the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.[Petition for Certiorari]

1. Whether the Sixth Circuit erred in holding, in square conflict with decisions of this Court and of other circuits, that every Rule 60(b) Motion constitutes a prohibited “second or successive” habeas petition as a matter of law.
2. Whether a court of appeals abuses its discretion in refusing to permit consideration of a vital intervening legal development when the failure to do so precludes a habeas petitioner from ever receiving any adjudication of his claims on the merits.

CAPTITAL CASES (Favorable Disposition)

See above

CAPITAL CASES (Unfavorable Disposition)

North Carolina v. Mann, 2002 N.C. LEXIS 332 (4/5/2002) Relief denied, most notably, on: [1] sufficiency; [2] admission of a promotional photograph of the defendant in which he is depicted as rap musician "Doc Terra (Da Mann);" [3] sumbission of an acting-in-concert instruction with respect to the charge of first-degree murder; [4] the prosecutor engaged in misconduct during the guilt phase closing arguments [5] the government's closing concerning flight to the jury since the trial court denied the State's request for a flight instruction; [6] denigration of defense counsel; [7] Enmund error relating to death eligibility of co-conspirators to homicide; [8] sufficiency on the HAC aggravator; [9] double jeopardy/double counting of aggravators; [10] pecuniary gain aggravator and [11] proportionality review.

North Carolina v. Robinson, 2002 N.C. LEXIS 330 (4/5/2002) Relief denied most notably on allegations relating to: [1] change of venue; [2] lack of individual voir dire; [3] failure to grant additional peremptories; [4] failure to permit meaningful voir dire; [5] the instructions given on the two theories of first-degree murder applied in the case sub judice in that they confused the jury; [6] impermissible lay witness testimony on DNA evidence; [7] limiting of crossexamination; [8] admission of hearsay; [9] sufficiency; [10] trial court's failure to intervene ex mero motu; [11] giving peremptory instructions on nonstatutory mitigating circumstances that were not consistent with North Carolina law; [13] failing to give a peremptory instruction for statutory mitigating circumstances; [14] failing to give a peremptory instruction for each nonstatutory mitigating circumstance; [15] defendant alleges that the trial court erred in submitting to the jury for its consideration three separate statutory aggravating circumstances that defendant had been previously convicted of three separate prior convictions for common law robbery; [16] aggravating circumstance that the murder was committed during the commission of an attempt to commit robbery with a dangerous weapon; and [17] the trial court not intervening ex mero motu and issuing a curative instruction after it sustained defendant's objection to a question from the prosecutor during the sentencing proceeding;

Spencer v. Florida, 2002 Fla. LEXIS 631 (FL 4/11/2002) Relief denied on claims that he was denied a fair trial by various instances of prosecutorial misconduct, including failing to disclose identification of possible witnesses & Giglio error (false/misleading evidence); pretrial publicity and improper contact between protesters and the jurors resulted in juror bias; trial counsel rendered ineffective assistance during voir dire questioning of the prospective jurors; ineffective assistance of counsel and the postconviction court's failure to grant an evidentiary hearing on several claims of ineffective assistance of trial counsel during the penalty phase and the state rule of ethics which prohibits trial counsel from interviewing jurors, denied him adequate assistance of counsel in pursuing postconviction relief.

Sanchez-Velasco v. Secretary of Department of Corrections, 2002 U.S. App. LEXIS 5641 (11th Cir 4/2/2002) Next friend status denied to intervenors who sought to pursue appeal for Florida death row inmate who is consenting to execution. Consensual execution permissible as the condemned is not incompetent.

Hunter v. Florida; Hunter v. Moore, 2002 Fla. LEXIS 548 (FL 4/4/2002) Relief denied on allegations that: (1) trial and appellate counsel had an actual conflict of interest; (2) trial counsel was ineffective for failing to challenge the State's case through the use of photographic evidence; (30 appellate counsel was ineffective for failing to argue on direct appeal that Hunter's death sentence was disproportionate to the life sentence imposed on codefendant Boyd. and (4) ineffective assistance of counsel as the fourth co-defendant in the indictment still awaits trial, so there is no way to weigh any treatment regarding Mr. Anderson until, and if, he is convicted of said offenses. .

Matthews v. State, 2002 Okla. Crim. App. LEXIS 17; 2002 OK CR 16 (Ok Crim App 4/8/2002) Relief denied, most notably on whether : [1] jurors were exposed to and engaged in unauthorized communications regarding the merits of the case during first stage deliberations and again between first stage verdict and the second stage; [2] one of the jurors stated after the verdict that she had formed her opinion on punishment before the presentation of second stage evidence; [3] failing to excuse five jurors for cause based on their bias toward the death penalty; [4] suppression of evidence based on illegal arrest and because the affidavit upon which the magistrate relied in issuing the search warrant contained false statements; [5] sufficiency; [6] prosecutorial misconduct relating to certain statements made by government; [7] admission of evidence of other crimes; [8] charge on co-conspirator liability; [9] aggravating circumstance of great risk of multiple death; and [10] the jury was allowed to sentence him to death without determining his culpability for Short's murder. Matthews also was denied on allegation relating to the puissancy of counsel including counsel failed to: 1) cross-examine Dyer; 2) investigate available witnesses; 3) present defense witnesses crucial to his defense; and 4) object and move for mistrial or request admonishment to correct the prosecutor's improper comments."

Louisiana v. Bowie, 2002 La. LEXIS 958 (LA 4/3/2002) Relief denied on claims that: [1] the state failed to disclose plea bargains and other inducements to their witnesses and failed to disclose the of rap sheets of the state's principal witnesses; [2] jurors tentatively selected for service were sworn but not sequestered immediately pursuant to La.C.Cr.P.art. 791(B); the trial court erred in barring admission of the victim's manslaughter conviction at the penalty phase of trial; [3] Article I § 20 of the Louisiana Constitution prohibits cruel, excessive or unusual punishment; and [4] proportionality review.

New Jersey v. Cruz, 2002 N.J. LEXIS 378 (NJ 4/9/2002) Relief denied on claim that "non- unanimous jury verdict on the issue whether defendant committed the murder in question by his own conduct precludes the death penalty, [and therefore] a non-unanimous verdict on the murder count must necessarily be regarded as a non-unanimous verdict on the "by your own conduct" issue."

Ohio v. Campbell, 2002 Ohio LEXIS 890 (Ohio 4/11/2002) The sole issue on appeal is whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and whether the death sentence is proportionate to those affirmed in similar cases.

Pagan v. Florida, 2002 Fla. LEXIS 549 (4/4/2002) Relief denied on claims relating to: [1] sufficiency of the evidence, [2] evidence of unrelated crimes; [3] motion to suppress physical evidence; [4] bolstering of the credibility of a state witness; [5] the trial court erred in admitting recorded hearsay; [6] admission of photographs of the deceased; [7] irregularities in the voice lineup; [8] improper golden rule argument; [9] reference to evidence that had been excluded during the governments closing; [10] the trial court erred in overruling objections and permitting the medical examiner to express expert opinions on glass; [11] the trial court erred in granting the State's motion for a voice lineup and in allowing testimony relating to the voice lineup; and [12] Pagan's death sentence is not proportionate.

Balentine v. Texas, 2002 Tex. Crim. App. LEXIS 71 (Tx Crim App 04/03/2002) Statements and evidence gathered by the government for use against the condemned was not obtained as the result of unlawful detention, from an unduly long detention prior to be charged, unlawful arrest, and unlawful search of the residence at which he was staying. Failure to put the lawfulness of the statements and evidence to the jury was held permissible.

White v. Florida, 2002 Fla. LEXIS 544 (FL 4/4/2002) Relief denied most notably on claims that: (1) the trial court erred in not permitting the cross-examination of the key State witness concerning the underlying facts of the witness's subsequent murder conviction; (2) the trial court erred in finding that the murder was committed to disrupt or hinder the enforcement of laws; (3) the trial court erred in rejecting the statutory mitigating factor that the murder was committed while White was under extreme duress or under the substantial domination of another; (4) the imposition of the death penalty is disproportionate."

Pecoraro v. Walls, 2002 U.S. App. LEXIS 5618 (7th Cir 4/1/2002) Relief denied on claims relating to the failure to turnover potentially exculpatory information & whether counsel was ineffective for failure to adequately develop the possibility that the condemned's confession was involuntarily due to drug and alcohol usage.

Gorby v. Florida, 2002 Fla. LEXIS 636 (FL 4/11/2002) Relief denied on claims relating to (1) failure to investigate the prosecution's case-in-chief and to present, mitigation evidence regarding Gorby's mental health, alcohol abuse, and troubled upbringing in the penalty phase; (2) "was denied the right to a full and fair evidentiary hearing because (a) during postconviction proceedings the State refused to grant immunity from prosecution for perjury to inmate Jerry Wyche, who testified against Gorby at his trial; (b) the understaffing of the Office of Capital Collateral Regional Counsel and the operation of Florida Rule of Criminal Procedure 3.851 hindered Gorby's ability to present an effective postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850; and (d) public records regarding not only the medical examiner's possible involvement in the death of his wife but also possible juror misconduct during Gorby's trial were withheld by various state agencies;" and (3) "denied competent assistance from a mental health expert to which he is entitled under Ake v. Oklahoma."

OTHER NOTABLE CASES

Fischer v. United States, No. 98-1803 (7th Cir 04/04/2002) Failure to challenge the lack of jury unanimity on his conviction under 21 U.S.C. section 848 in his habeas petition before the district court, he could not raise the claim on appeal; denial of defendant's habeas petition affirmed.

Higgs v.Carver, No. 01-1559 (7th Cir 04/01/2002) Remand ordered as record as to why a prisoner was placed in solitary confinement for 34 days is not sufficiently developed

Butera v. Cottey, No. 01-2242 (7th Cir 04/04/2002) Relief denied on prisoner rape suit as prisoner-plaintiff failed to show that sheriff had actual notice of a substantial risk of harm to him, that prior to the date he was sexually assaulted, any incident of sexual assault took place in the cell block to which he was assigned and because the sheriff implemented precautionary measures to prevent detainee violence.

United States v. Turner, No. 01-3049 (10th Cir 04/02/2002) Error, if any, in denying defendant's Daubert motion on the reliability of the underlying science and methods used to collect fingerprints was harmless.

AMENDED OR DELAYED PUBLICATION CASES

None noted

FOCUS

Please visit the Illinois Commission on Capital Punishment Report

OTHER NEWS

TheDeath Penalty Information Centerreports:

Amnesty International Report Shows Decline in Use of Death Penalty Internationally
A new report by Amnesty International states that over half of the countries in the world no longer use capital punishment. The report also notes:
111 countries have abolished the death penalty in law or practice
Over 30 countries and territories have abolished the death penalty for all crimes since 1990, including countries in Africa, the Americas, Asia, and Europe
Recent crime figures from abolitionist countries show that abolition does not have harmful effects. In Canada, or example, the homicide rate fell 43% from a high of 3.09 in 1975, a year before the abolition of the death penalty, to 1.76 in 1999.
(Chicago Tribune, 4/15/02) Read the report. See also, International Death Penalty.
Execution of Juvenile Offender Scheduled in Missouri
Chris Simmons is to be executed in Missouri on May 1. Simmons, a 17 year-old high school student at the time of the crime, was under the influence of drugs and alcohol and was also found to be suffering from schizotypal disorder, a mental illness. At trial, Simmons' attorney failed to present evidence of this mental disorder or evidence of Simmons' childhood abuse by his father. (Missourians to Abolish the Death Penalty, Action Alert, 4/13/02)
Currently, there are 83 juveniles on death row across the U.S., and 2 on death row in Missouri. Since the death penalty was reinstated, Missouri has executed one juvenile offender. See also the American Bar Association Juvenile Justice Center's Web page on the Simmons case and Juvenile Death Penalty.
Oklahoma Senate Passes Ban on Executing Those With Mental Retardation
Senators in Oklahoma voted 32-15 to prohibit the execution of inmates with mental retardation. The legislation, if enacted, would require courts to conduct a pretrial hearing to determine whether a defendant suffers from mental retardation. Defendants would be required to show that they have an IQ of 70 or below and that their developmental disability occurred before age 18. The measure has already passed in the House and will now go to a joint House-Senate committee for consideration. (The Oklahoman, 4/15/02)
Last year, five states passed legislation to ban the execution of those with mental retardation, bringing the national total to 18 states that prohibit such executions. A ruling by the U.S. Supreme Court on the constitutionality of executing the mentally retarded is expected before July. See also, Changes in the Death Penalty and Mental Retardation and the Death Penalty.
End of Electric Chair May Be In Sight
A bill to change the primary method of execution in Alabama from the electric chair to lethal injection passed the state legislature on April 11. The legislation provides that lethal injection will be used as the method of execution unless an inmate requests the electric chair. The bill will now be sent to Governor Siegelman, who has indicated that he will sign it. In fact, Siegelman and Attorney General Bill Pryor had urged the legislature to change the method. If the bill is signed into law, Nebraska will be the only state in the country to use electrocution as its sole means of execution. (Associated Press, 4/11/02) See also, Methods of Execution.
Major Illinois Death Penalty Study Urges Sweeping Changes
The Illinois Commission on Capital Punishment will release its two-year study of the death penalty today in Chicago. The report recommends 85 major reforms that need to be implemented at all stages in the capital punishment system, but unanimously concluded that "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death." Although the Commission did not formally recommend abolishing the death penalty, a majority of commission members favored such a move. Reforms urged by the commission include drastically limiting the circumstances in which the death penalty can be sought, requiring police to videotape interrogations, establishing a DNA database, and submitting all death penalty eligible cases to a state board for review.
The Commission was appointed two years ago by Governor George Ryan when he initiated a moratorium on executions in the state in response to the high number of people freed from death row. The Commission was charged with studying the death penalty in Illinois, and making recommendations to improve the fairness and accuracy of capital punishment. (Report of the Governor's Commission on Capital Punishment, Preamble, April 2002; New York Times, 4/15/02; and Chicago Tribune, 4/15/02) See also DPIC's Press Release, the Illinois Commission on Capital Punishment Report, and the Illinois Commission on Capital Punishment's Web site.
Amnesty International Reports on World Executions; U.S. Leads in Juvenile Executions
A new report released by Amnesty International states that 3,048 people were executed in 31 countries in 2001. According to the report, China, Iran, Saudi Arabia, and the United States accounted for 90% of the death sentences carried out last year. China alone was responsible for 80% of the executions. Amnesty International said that it was encouraged by the reduction in number of executions of juvenile offenders last year. In 2001, there were only three such executions, taking place in only three countries- the United States, Iran, and Pakistan. Since 1990, the United States has executed 15 juvenile offenders, more than any other country. (Associated Press, 4/9/02) See also, International Death Penalty.
100th Death Row Inmate Exonerated
Former death row inmate Ray Krone was released from prison on Monday in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years ago. Maricopa County Attorney Rick Romley and Phoenix Police Chief Harold Hurtt announced at a news conference on Monday that new DNA tests vindicated Krone and that they would seek his release pending a hearing next month to vacate the murder conviction. Romley stated, "[Krone] deserves an apology from us, that's for sure. A mistake was made here. . . . What do you say to him? An injustice was done and we will try to do better. And we're sorry."
Krone was first convicted in 1992, based largely on circumstantial evidence and testimony that bite marks on the victim matched Krone's teeth. He was sentenced to death. Three years later he received a new trial, but was again found guilty and sentenced to life in prison in 1996. Krone's post-conviction defense attorney, Alan Simpson, obtained a court order for DNA tests. The results not only exculpated Krone, but they pointed to another man, Kenneth Phillips, as the assailant. Prosecutor William Culbertson told Maricopa County Superior Court Judge Alfred Fenzel that the chances are 1.3 quadrillion to one that DNA found in saliva on the victim's tank top came from Phillips. (The Arizona Republic, 4/9/02)
Krone is the 100th inmate freed from death row since 1973 and the 12th in which DNA testing played a substantial factor. See also DPIC's Press Release and Innocence and the Death Penalty.