Three states sentenced Michael Lee Lockhart to death for three different murders, and the highest court of each wrote about him in turn. The Supreme Court of Indiana told its part in the order it happened. On October 12, 1987, a woman walking in her North Side Chicago neighborhood was robbed at knifepoint by a man who drove off in a blue Toyota Celica. The next evening, across the state line in Griffith, sixteen-year-old Windy Gallagher’s sister came home to the apartment they shared with their mother and found Windy in the bedroom, her hands tied behind her back, stabbed four times in the neck and seventeen times in the abdomen. Two days later the Chicago woman got her purse back from a man on the South Side and found Windy’s grey clutch inside it. On January 20, 1988, fourteen-year-old Jennifer Colhouer was raped and stabbed to death in her parents’ home in Land O’ Lakes, outside Tampa, and eyewitnesses put Lockhart and a red Corvette in the neighborhood that day.
On March 22, 1988, Beaumont police officer Paul Hulsey Jr. saw the Corvette, with Florida plates and a local drug dealer in the passenger seat, and chased it until it got away. That evening he found it outside a motel, went to Lockhart’s room to arrest him, and was shot. A Bexar County jury, hearing the case on a change of venue from Jefferson County, convicted Lockhart of the capital murder of a peace officer in October 1988, and the Texas Court of Criminal Appeals affirmed in December 1992 over a dissent by Judge Clinton, who could not call harmless the evidence of other crimes the jury had heard at the guilt phase. The Supreme Court of Indiana affirmed the Lake County conviction and death sentence in March 1993, holding that the Florida murder had been properly admitted as a signature crime. The Supreme Court of Florida affirmed in 1995 after Lockhart had pleaded guilty to Jennifer Colhouer’s murder and conducted his own defense at the penalty phase.
The last two opinions are about how a death sentence is carried out. In July 1993 a Texas trial court set Lockhart’s execution for November 23, and six days before that date he asked, without a lawyer, for counsel and a stay. The Court of Criminal Appeals’ order of November 22, 1993, reprints entry by entry the letters and visits between Lockhart and the Texas Resource Center from the day his date was set, and holds that the court had no jurisdiction to grant a stay; Judge Clinton dissented again, writing of the “crisis in capital representation.” A federal district judge stayed the execution that month and appointed a lawyer. The Fifth Circuit’s decision of January 9, 1997, ends that litigation, denying a certificate of appealability and vacating the stay, and Texas executed Lockhart at Huntsville on December 9, 1997, with the sentences of Indiana and Florida still standing.
Each of these courts decided only its own case. Texas convicted Lockhart of Paul Hulsey’s murder after a trial at which he took the stand, admitted the shooting and gave a different account of what happened in the motel room. Indiana convicted him of Windy Gallagher’s murder on evidence that included a palm print on her bedroom wall and the Florida killing. Florida took his guilty plea. The Chicago robbery, a bank robbery, a stolen car and the pages the Texas court calls a “diary of extraneous offenses” came in as evidence of other crimes and were not separately tried in any proceeding here. And as appellate courts, all of them state the facts as the jury was entitled to find them, which is a different thing from a finding that every detail happened as told.
The opinions of the Texas Court of Criminal Appeals, the Supreme Courts of Indiana and Florida and the United States Court of Appeals for the Fifth Circuit are government works that belong to the public, so the whole record can be reproduced here. Three private people are named in them and appear by initials instead: T.L., the woman robbed in Chicago the day before the Griffith murder, whose purse became evidence in Indiana; C.G., Windy Gallagher’s sister, who found her; and T.W., a woman who had dated Lockhart and testified about the Halloween party he missed. The Texas order also prints a Boston street address for one of his lawyers, which stays because it is an office and he was acting for his client.
The Caselaw Access Project text carries a handful of misreadings from the digitization of the printed volumes, most of them in the Indiana and Texas opinions. “Cireumstances” appears seven times for circumstances, the Fifth Circuit’s statement of facts opens “Gn March 22, 1988,” the Texas order says no effort “has heen made” to invoke the trial court’s jurisdiction, and Indiana’s numbered list of Lockhart’s claims runs 1, 2, 8, 4, 5, 6. The Fifth Circuit opinion also arrived with its whole procedural history filed among the footnotes, because a stray period in front of its first paragraph made the section look like a note, and we have put it back under its heading. Eleven hyphens broken at the end of a printed line are closed, and the rest is as printed.
Michael Lee LOCKHART, Appellant, v. STATE of Texas, Appellee.
No. 70734.
Court of Criminal Appeals of Texas, En Banc.
Dec. 2, 1992.
Rehearing Denied Feb. 24, 1993.
Douglas M. Barlow, Beaumont, for appellant.
Tom Maness, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
[OPINION BY MALONEY, Judge. type=majority]
OPINION
MALONEY, Judge.
A jury convicted appellant of capital murder, specifically murder of a peace officer. V.T.C.A. Penal Code, § 19.03(a)(1). The jury affirmatively answered the submitted issues prescribed by article 37.071(b) and the trial court assessed punishment at death. Art. 37.071(e), V.A.C.C.P. This cause was tried in Bexar County on a change of venue from Jefferson County. Appellant appeals, alleging twenty-two points of error. We will affirm his conviction. Because appellant does not challenge the sufficiency of the evidence, we will dispense with a detailed recitation of the facts.
Briefly, on March 22, 1988, Beaumont Police Officer Paul Hulsey, Jr. saw appellant driving a red Corvette with a Florida license plate in a high crime area in Beaumont, Texas.. Officer Hulsey recognized the passenger as being a local drug dealer. When appellant saw the officer, he began speeding and running stop signs. Officer Hulsey chased the car, but to no avail. Later that evening, after discovering that appellant had checked into a local motel, Officer Hulsey went to appellant’s motel room and an altercation ensued which resulted in the officer’s death. At trial, appellant admitted shooting and killing Officer Hulsey, but claimed self-defense.
In his twelfth through eighteenth points of error, appellant complains of extraneous offenses that were admitted at the guilt-innocence portion of his trial. At trial, the State introduced testimonial and physical evidence regarding an attempted drug offense, an aggravated robbery of an automobile salesman (i.e. a stolen car), a burglary of a vehicle (i.e. a stolen license plate), an aggravated bank robbery, a burglary (i.e. a stolen gun), and a so-called “diary of extraneous offenses.” Appellant objected that the aforementioned evidence constituted evidence of extraneous offenses; that the State had not proven relevancy or materiality to any issue in the case, and that the State had not given any reason for the admissibility of such evidence.
The trial court admitted the evidence on the condition that relevancy ultimately be shown. Tex.R.Crim.Evid. 104(b). Before the State rested its main case, the prosecutor stated that the evidence of the stolen gun, the stolen car, the stolen license plate, and the money, showed what appellant possessed at the time he killed the officer.
Evidence of other crimes or bad acts that a defendant may have committed cannot be introduced at the guilt-innocence phase to show that the defendant acted in conformity with his criminal nature and therefore committed the crime for which he is on trial. Montgomery v. State, 810 S.W.2d 872, 386 (Tex.Cr.App.1991) (op. on reh’g); Abdnor v. State, 808 S.W.2d 476, 478 (Tex.Cr.App.1991); Couret v. State, 792 S.W.2d 106, 107 (Tex.Cr.App.1990); Foster v. State, 779 S.W.2d 845, 859 (Tex. Cr.App.1989), cert, denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990); Templin v. State, 711 S.W.2d 30, 32 (Tex. Cr.App.1986) (citations omitted); Tex. R.CRIM.Evid. 404(b). However, extraneous offenses may be admitted for other purposes, such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex.R.Crim.Evid. 404(b).
Also, evidence of extraneous offenses that are indivisibly connected to the charged offense and necessary to the State’s case in proving the charged offense may be admissible as relevant evidence to explain the context of the offense for which the defendant is on trial. See Mayes v. State, 816 S.W.2d 79, 86-87 n. 4 (Tex.Cr. App.1991); see also Mann v. State, 718 S.W.2d 741, 744 (Tex.Cr.App.1986), cert, denied, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972).
Here, Officer Hulsey saw appellant talking to a suspected drug dealer near a basketball court in a high crime area. According to the drug dealer’s testimony, appellant approached the drug dealer and asked him if he knew how to get some cocaine or marijuana. The drug dealer said no, but then got into appellant’s car. Officer Hulsey became suspicious when he saw the drug dealer get into the car because appellant was driving a red Corvette with a Florida license plate in a high crime area. When appellant noticed that Officer Hulsey had seen them, he began speeding and running stop signs through Beaumont, ultimately losing the officer in the chase.
The evidence at trial revealed that appellant had stolen the red Corvette from an automobile salesman at gunpoint about four months before this offense, and that appellant checked into a Beaumont motel room using the salesman’s name. Appellant admitted stealing the car. The Florida license plate on the red Corvette was identified at trial as that stolen about two months before this offense from a vehicle belonging to a Florida witness. Appellant testified that he put a Florida license plate on the Corvette around that time.
This evidence describes the circumstances surrounding Officer Hulsey’s death and is necessary to the jury’s comprehension of the offense. Officer Hulsey would not have gone to appellant’s motel room had he not been involved in a car chase with appellant who was driving a stolen car with a stolen license plate. And, Officer Hulsey would not have been following the car driven by appellant had his suspicions not been aroused by what he saw concerning a suspected drug transaction.
We hold that the evidence of the attempted drug offense, stolen car, and stolen license plate constituted contextual evidence indivisibly connected to this offense and therefore relevant under Tex. R.Crim.Evid. 401. We also conclude that the possible prejudicial effect of the aforementioned evidence did not substantially outweigh its probative value; therefore, such evidence was admissible. Mann, 718 S.W.2d at 744 (the prejudicial effect of evidence will rarely render it inadmissible if it proves the context of the offense).
Appellant also complains of testimony concerning an aggravated bank robbery and a burglary. Out of the jury’s presence, appellant objected that such testimony was extraneous offense evidence lacking any probative value, that it confused the issues, and that the prejudicial effect of that testimony clearly outweighed any probative value. The trial court overruled the objection under Tex.R.CRIM.Evid. 403. Appellant then requested the State to specify in the record for what purposes under rule 404(b) the testimony was offered. The trial court rejected that request because the evidence was tendered as relevant evidence under rule 401. Undaunted, appellant further requested that the trial court limit the purposes for which the jury could consider the testimony. Appellant did note that he did not know what those purposes were since the State was not required to articulate its reasons. The trial court stated that any limiting instruction would be given in the charge, not during the testimony.
A bank teller testified that on March 21, 1988, the day before the instant offense, someone robbed her bank at gunpoint in Baton Rouge, Louisiana. The teller handed the robber a one hundred dollar bill, which had been set aside as “bait money.” The bank had previously recorded the serial number of that bill in a log. Shortly after the instant offense, appellant gave a taxi-cab driver a one hundred dollar bill to take him to Houston. The teller identified that one hundred dollar bill as the bait money she had given to the robber. Appellant testified that he had been in Baton Rouge during the second week in March, 1988 and had stayed for a couple weeks thereafter. Thus, the fact that appellant was in Baton Rouge when the bank robbery was committed, and the fact that he possessed the stolen money about one and one-half days after the robbery would indicate that he committed the bank robbery.
The gun found in the red Corvette after Officer Hulsey was killed was identified at trial by a police officer as his .357 magnum Smith and Wesson service revolver, which had been stolen from his home about seven months before this offense. And, according to the testimony of an FBI special agent, a bullet found near Officer Hulsey’s body was fired from that same gun.
We agree with appellant that the testimony concerning the bank robbery and the burglary indicate extraneous offenses, and now turn to the issue of their admissibility. The aggravated bank robbery and the burglary are offenses separate and independent of the killing of the police officer. The State has not shown that the bank robbery was in any way connected to the instant offense, and although the stolen gun was the murder weapon, the fact that it was stolen was not necessary to the jury’s comprehension of this offense; therefore, the bank robbery and the burglary are not “same transaction” contextual evidence. Mayes, 816 S.W.2d at 86-87 n. 4. Rather, the evidence of the bank robbery and the burglary are akin to the general “background” contextual evidence that is unnecessary to the jury’s comprehension of the charged offense. Id. at 88. Such evidence is inadmissible unless it is authorized as an “other purpose” under rule 404(b). Id.
In Montgomery we detailed the procedure for preserving error in the admission of extraneous offenses. The defendant must object that the evidence is inadmissible under rule 404(b), then the State must show that the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal. Montgomery, 810 S.W.2d at 387. Further, the trial court should honor any request by the defendant for the State to articulate into the record the purpose for which the evidence is offered. Id. If the trial court determines that the evidence is relevant, the defendant must further object under rule 403.
Here, the State never offered the evidence for a limited purpose under rule 404(b), even though appellant requested that the State specify for what purpose the evidence was offered under the rule. Therefore, since the evidence of the aggravated bank robbery and the burglary were inadmissible as contextual evidence and were not offered as exceptions under rule 404(b), the trial court erred in admitting such evidence. We now decide whether that error was harmless. Tex.R.App.P. 81(b)(2).
“Rule 81(b)(2) mandates that the appellate court focus upon the error and determine whether it contributed to the conviction or the punishment.” Harris v. State, 790 S.W.2d 568, 585 (Tex.Cr.App.1989). Nevertheless, “the impact of the error cannot be properly evaluated without examining its interaction with the other evidence.” Id. at 586. The question then is “whether a rational trier of fact might have reached a different result if the error and its effects had not resulted.” Id. at 588.
At trial, appellant testified that he killed the deceased and that he knew that the deceased was a police officer when he killed him. The only issue was whether appellant acted in self-defense. As we ultimately hold in this opinion, even if the jury believed appellant’s version of the facts, as a matter of law, the evidence did not constitute self-defense. In light of appellant’s admission to this offense, we are persuaded beyond a reasonable doubt that the error in admitting evidence of the aggravated bank robbery and the burglary did not contribute to appellant’s conviction. Harris, 790 S.W.2d at 584-88; Tex.R.App.P. 81(b)(2).
We now consider the admissibility of appellant’s “diary” that he contends tended to connect him to extraneous offenses. This “diary” was actually a 1988 week at a glance datebook containing miscellaneous names, figures, and notations. To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it. Hams v. State, 738 S.W.2d 207, 224 (Tex. Cr.App.) (op. on reh’g), cert, denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); see Tex.R.CRIM.Evid. 404(b). Here, the “diary” did not tend to connect appellant to any prior bad acts or crimes appellant may have committed. Indeed, it did not depict any criminal activity or bad acts, let alone those offered at his trial. As such the calendar was not excludable as an extraneous offense.
However, the calendar must be relevant before it can be admitted into evidence. Mayes, 816 S.W.2d at 84; Tex. R.Crim.Evid. 402. The Texas Rules of Criminal Evidence define relevancy as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R.CRIM.Evid. 401. The consequential fact or issue need not be contested before the evidence can be relevant. Mayes, 816 S.W.2d at 84. Evidence is relevant if it influences facts that concern the ultimate determination of guilt. Id.
Here, a witness who dated appellant for a short time testified that the “diary” belonged to appellant. The “diary” was relevant in that it was found in appellant’s motel room, where this offense occurred, thus connecting appellant to the crime scene. Tex.R.Crim.Evid. 401. Accordingly, appellant’s twelfth through eighteenth points of error are overruled.
In his nineteenth point of error, appellant contends that “[t]he [t]rial [c]ourt erred in failing to require the State to negate the issue of self-defense in the application paragraph of the [c]ourt’s [c]harge.” Because we determine that the evidence at trial did not sufficiently raise self-defense, any error in the given self-defense charge was necessarily harmless.
According to appellant’s testimony, Officer Hulsey knocked on appellant’s motel room door and asked him for some identification. Appellant knew that Officer Hulsey was a police officer. Appellant inquired as to the reason, and asked if he was under arrest, or if the officer had an arrest or search warrant. Officer Hulsey responded that he just wanted to see appellant’s identification. Appellant indicated that it was on the dresser and that he would get it.
Appellant partially closed the door, and went inside the room towards the general area of the nightstand on which in plain view was a gun. Officer Hulsey pushed the door open and, with his weapon drawn, told appellant to get against the wall. Appellant asked why, and the officer responded because “you have a gun over there.” Appellant again asked if he was under arrest, or if the officer had an arrest or search warrant, to which Officer Hulsey responded negatively. Appellant asked the officer to leave his room. Officer Hulsey again told appellant to get against the wall and he finally complied.
Once appellant was against the wall, the officer placed his weapon to the back of appellant’s neck. When Officer Hulsey lowered his weapon, appellant turned around and hit him in the face with his fist, causing the officer to fall back onto the bed. Appellant jumped on top of Officer Hulsey and the two struggled. Officer Hulsey bit appellant’s trigger finger. Appellant testified that he was already angry, and when the officer bit his finger he became angrier. Appellant hit the officer in the head with a pen. They fell on the ground and the officer’s weapon accidentally discharged, but no one was hurt.
They continued to struggle and appellant grabbed the stolen gun, pointed it at Officer Hulsey’s head, and told him to drop his weapon. The struggle continued and the stolen gun accidentally discharged. Again, no one was hurt. Appellant hit Officer Hulsey with the butt of the stolen gun, and Officer Hulsey dropped his weapon. Appellant backed away from the bed and told Officer Hulsey not to reach for his weapon. But, the officer reached for it and appellant shot him twice. Officer Hulsey asked appellant not to shoot him again. Appellant agreed and fled the room. Appellant testified that he did not realize that he pulled the trigger because he had no feeling in that finger.
An investigating officer testified to oral statements made by appellant after he had been warned of his rights. He testified that appellant chuckled and said, “I’ll never forget the look in his [Officer Hulsey’s] eyes as he begged me not to shoot him anymore.” Appellant also said that when Officer Hulsey came to his room asking for identification, he had “planned to get [the stolen] gun and get the drop on the officer.”
Appellant initiated the altercation that resulted in Officer Hulsey’s death; there is no evidence in the record that appellant attempted to abandon the encounter once he initiated it. Further, the record reflects that Officer Hulsey did not use excessive force and that appellant’s resistance was unreasonable. The evidence did not sufficiently raise self-defense, and the error of omission, if any, in the charge was necessarily harmless. See V.T.C.A. Penal Code, § 9.31(b)(2) and (4). Appellant’s nineteenth point of error is overruled.
Having reviewed all of appellant’s points of error, we hold that each is without merit. Accordingly, the trial court’s judgment is affirmed.
BENAVIDES, J., not participating.
Only the introductory paragraphs, points of error twelve through nineteen, and the closing paragraph are designated for publication. See Tex.R.App.P. 223(b).
[OPINION BY CLINTON, Judge, type=dissent]
CLINTON, Judge,
dissenting.
I dissent to the majority’s resolution of points of error complaining of the admission of extraneous offenses in this cause. The majority concludes that evidence that appellant was driving a stolen car was admissible as “contextual evidence.” Op. at 571. The majority relies primarily on Mayes v. State, 816 S.W.2d 79 (Tex.Cr.App. 1991). Op. at 570 & 571-572, n. 8. Mayes expressly holds that “evidence of other crimes, wrongs, or acts,” Tex.R.Cr.Evid., Rule 404(b), is not admissible if the only theory the State can articulate for its admissibility is that it provides “background” of the charged offense. Whether “other crimes, wrongs, or acts” may be proven simply because they occurred during the “same transaction,” and thus constitute “context” of the offense, is a question left open by Mayes —not resolved by it, as the majority opinion in this cause implies. Op. at 571. Under the new Rules of Criminal Evidence, more is required.
To be admissible for some “purpose” other than one of those delineated in Rule 404(b) itself, evidence of “other crimes, wrongs, or acts” must have some relevance to an issue in the case. Tex.R.Cr.Evid., Rule 402. That is to say, it must have some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R.Cr.Evid., Rule 401. Simply to observe that an extraneous offense is “contextual” is not sufficient to establish it has relevance apart from its character conformity value. And where evidence of “other crimes, wrongs, or acts” has only character conformity value, “the balancing otherwise required by [Tex.R.Cr.Evid.,] Rule 403 is obviated, the rulemakers having deemed that the probativeness of such evidence is so slight as to be ‘substantially outweighed’ by the danger of unfair prejudice as a matter of law.” Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App. 1991) (Opinion on rehearing on Court’s own motion).
Apart from proclaiming “context,” the majority does not identify any fact of consequence that evidence that the car was stolen makes more or less probable. Nor does the majority explain how evidence is “relevant” under Rule 401 just because it is (if it is, which is doubtful) “indivisibly connected to” the charged offense. Op. at 571. It certainly is not self evident to me that the jury could not readily have understood what transpired in the hotel room between appellant and Officer Hulsey without knowing the car was stolen. In fact, I cannot imagine how that knowledge could have impacted the jury’s deliberation of the material issues in this case one way or the other. Neither could the prosecutor, judging from his complete inability to identify a single fact of consequence the offense was relevant to prove. Op. at 570, n. 4. It appears the extraneous offense had no more purpose than to prejudice appellant unfairly by showing his general propensity to crime. It no more contributed to proving a consequential fact than did those we held were erroneously admitted in Christopher v. State, 833 S.W.2d 526 (Tex.Cr.App. 1992).
I cannot say beyond a reasonable doubt that, especially taken together with the evidence of the robbery in Baton Rouge and the burglary during which the gun was stolen, which the majority acknowledges was admitted in error, evidence of the stolen car made no contribution to the verdict. Tex.R.App.Pro., Rule 81(b)(2). Therefore I would reverse the judgment of the trial court and remand the cause for new trial. Because the majority does not, I respectfully dissent.
Appellant has also filed a pro se supplemental brief raising four additional points of error, challenging the constitutionality of article 37.-071, V.A.C.C.P. and the effectiveness of his counsel for failing to challenge that article’s constitutionality at trial. Because appellant does not have an absolute right to hybrid representation, we will not address these claims. Miniel v. State, 831 S.W.2d 310, 313 n. 1 (Tex.Cr.App. 1992) (citations omitted).
We note that appellant testified to a different version of the facts. According to appellant’s testimony, Officer Hulsey never chased the car.
Specifically, appellant contends: POINT OF ERROR NO. TWELVE: Reversible error occurred when the State was allowed to try Appellant as a criminal generally through the introduction of extraneous offenses. POINT OF ERROR NO. THIRTEEN: The Trial Court erred in admitting evidence of an extraneous offense, to-wit: burglary of a habitation. POINT OF ERROR NO. FOURTEEN: The Trial Court erred in admitting evidence of an extraneous offense, to-wit: an attempted drug offense. POINT OF ERROR NO. FIFTEEN: The Trial Court erred in admitting evidence of an extraneous offense, to-wit: aggravated robbery of an automobile salesman. POINT OF ERROR NO. SIXTEEN: The Trial Court erred in admitting evidence of an extraneous offense, to-wit: burglary of a vehicle. POINT OF ERROR NO. SEVENTEEN: The Trial Court erred in admitting evidence of an extraneous offense, to-wit: aggravated robbery at a bank. POINT OF ERROR NO. EIGHTEEN: The Trial Court erred in admitting State’s Exhibit Sixty-five, a diary of extraneous offenses.
After searching the record, the only reference to any purpose for the introduction of any of the alleged extraneous offenses is in regard to the bank bag taken from the Louisiana bank robbery the day before appellant killed the officer. [Prosecutor]: He [defense counsel] objected to the bank bag, Judge and I’m telling you that’s why it's relevant. [The Court]: Why? [Prosecutor]: Well, he was in possession of it, your Honor and we can put him in possession of it earlier. Let me also say to the Court — state if the Court is concerned about this, let me state that the bank bag or the last time she sees it or — if his objection is that it will confuse the issues because of the robbery, the bank bag that she sees is — or she sees it before the robbery occurred. I think the Court will remember it occurred — I think the Court will remember it occurred on the twenty-first and I think she doesn’t see the bank bag or she sees even the Defendant — the last time she sees the Defendant or the bank bag is the nineteenth or twentieth. [The Court]: The question I have is, where is the possession of a bank bag at all relevant to whether or not— [Prosecutor]: He’s in possession of that same bank bag— [The Court]: Wait a minute until I ask a question, please. [Prosecutor]: That’s my answer, sir. [The Court]: I haven’t completed the question. How can you give me an answer? The question is where is that relevant to the allegations you made in the indictment? [Prosecutor]: Judge, it puts him just in possession of things that he’s in possession of at the time he killed Paul Hulsey, just like he’s in possession of a Corvette, just like he’s in possession of a stolen plate, he’s in possession of money, he’s in possession of a gun. We want to show he’s in possession of the same or similar bank bag earlier. It helps draw him to that bank bag and his identity to that bank bag.
It is unclear whether Officer Hulsey was ever aware that the Corvette was stolen; however, the record reflects that when he went to appellant’s motel room, he was aware that the license plate on the Corvette was stolen.
We note that the facts of this case are distinguishable from the facts in Christopher v. State, 833 S.W.2d 526 (Tex.Cr.App.1992). In Christopher, the appellant was stopped for driving a stolen vehicle. The car contained property that had been reported stolen from several residences earlier that day. In the appellant’s subsequent trial for burglary of a habitation, the trial court admitted evidence that appellant was driving a stolen car at the time of his arrest. We stated that "[w]hile evidence establishing the car as stolen was relevant to the determination of probable cause to stop appellant, that issue was not contested before the jury.” Id. at 529. We further held that the evidence was not part of the "context of the offense.” In Christopher, the fact that the appellant was driving a stolen car was inconsequential to any issue for determination by the jury. Moreover, evidence of the stolen car was not necessary to give the jury a complete picture of the commission of the offense. In the instant case, these events lead to the officer’s appearance at appellant’s motel room. The prior encounter between the officer and appellant is so intertwined with the commission of the instant offense as to render it necessary to the jury's comprehension of the instant offense. See Mayes, 816 S.W.2d at 86-87 n. 4.
Additionally, appellant waived any error in the State's introduction of evidence of the attempted drug offense because appellant testified that he was looking for marijuana. See Hughes v. State, 563 S.W.2d 581, 590 (Tex.Cr.App.1978), cert, denied, 440 U.S. 950, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979). Similarly, appellant waived any error regarding the testimony concerning the stolen car, because he admitted that he stole the car from the salesman at gunpoint. Id.
The charge contained the following paragraph concerning extraneous offenses: Evidence has been introduced in this case regarding the defendant's having committed offenses other than the offense now alleged against him. You cannot consider this testimony for any purpose unless you believe beyond a reasonable doubt that the defendant committed such other offenses, if any. Even then, you may only consider the same in determining the identity of the defendant, or the issues of intent, motive, system, scheme or design, in connection with this offense, and for no other purpose. .The FBI special agent also testified that a bullet removed from the body and a bullet found under a chair in the motel room could have been fired from that gun, but that he could not make that determination to the exclusion of all other guns.
See infra the discussion of appellant’s nineteenth point of error.
The evidence of the bank robbery and the burglary although not admissible at guilt-innocence would have been admissible at punishment. Art. 37.071, § 2(a), V.A.C.C.P. At punishment, the jury also heard testimony of numerous extraneous offenses much more heinous than the bank robbery, including the brutal rape of his ex-wife and two capital murders, each involving the rape and murder of a teenage girl.
This entire account of what happened in the motel room the night appellant shot and killed Officer Hulsey is from appellant’s testimony.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Art. 15.17(a), V.A.C.C.P.
Officer Hulsey was authorized to question appellant, and to investigate and to prevent the consequences of theft. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Worthey v. State, 805 S.W.2d 435 (Tex.Cr.App. 1991); Mays v. State, 726 S.W.2d 937, 943-44 (Tex.Cr.App.1986), cert, denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988). Before Officer Hulsey went to appellant’s motel room, he had witnessed appellant talking with someone the officer recognized as a drug dealer, appellant had outrun the officer in a car chase, and the officer knew that the license plate on appellant's car was stolen (indicating that the car too might also be stolen). Because the officer possessed all this information when he saw the gun in plain view in appellant’s room, the officer was authorized to enter appellant’s motel room to protect his safety. Id.
All decisions cited as authority by the majority other than Mayes were prosecuted prior to the effective date of the new rules.
It is unclear to me why the majority believes the car was stolen as part of the “same transaction” as the shooting of Officer Hulsey in the hotel room. I would not think so. Thus, even assuming, as the majority mistakenly believes, that Mayes did hold that "same transaction” misconduct will always be admissible under Rule 404(b), supra, I do not see how that would render the offense here admissible.
Michael LOCKHART, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 45S00-8911-CR-851.
Supreme Court of Indiana.
March 8, 1993.
Daniel L. Bella, Crown Point, for Appellant.
Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for Appellee.
[OPINION BY SHEPARD, Chief Justice. type=majority]
SHEPARD, Chief Justice.
A Lake County jury convicted appellant Michael Lockhart of murdering a sixteen-year-old girl. »Multiple deep stab wounds inflicted with a large knife left the victim mutilated to the point of being partially eviscerated. The trial court sentenced Lockhart to death. The aggravating circumstances were intentional murder during the commission of a robbery and a conviction in Texas for murdering a police officer. His case is before us on direct appeal. Ind. Appellate Rule 4(A)(7).
Lockhart alleges several specific errors which we summarize for purposes of introduction:
1) Evidence of other crimes admitted during the State's case-in-chief;
2) Expert testimony by a doctor who did not personally examine victims;
8) Admission of DNA test results;
4) Use of Lockhart's criminal history during the penalty phase;
5) Due process ramifications of evidence about an unrelated murder not reduced to conviction; and
6) Use of a Texas murder conviction as a statutory aggravating cireumstance.
We affirm.
Facts
Lockhart was convicted of murdering Windy Gallagher on October 18, 1987, but a review of the evidence which led to his conviction and sentence is best framed in chronological order, beginning with his actions the day before, on October 12, 1987.
On Monday, October 12, T.L. was walking in her northside Chicago neighborhood when Lockhart attacked her at knifepoint and fled with her purse. He drove off in a blue Toyota Celica. T.L. survived the attack.
The next evening, across the state line in Griffith, Indiana, C.G. came home to the apartment where she lived with her mother and sister Windy. She saw no signs of forced entry. After spending about thirty minutes in the apartment, C.G. discovered Windy's body in the bedroom, nude from the waste down, hands tied behind her back, her bra pushed up above her breasts. There was a large pool of blood, and her intestines were hanging out. Windy had been stabbed four times in the neck and seventeen times in the abdomen. Among the items missing from the apartment were a picture of Windy, Windy's grey clutch purse, and a pocket calendar with Windy's name on it. Investigators discovered fingerprints on a water glass and a palm print on the wall of the bedroom. At trial, an expert testified that the prints matched Lockhart's.
Two days after the Gallagher murder, T.L. learned that a man on the south side of Chicago had her purse. When she retrieved it, she discovered Windy Gallagher's grey clutch purse and calendar inside. At trial, T.L. recognized a photograph of the blue Toyota and identified Lockhart as her attacker. C.G. identified the calendar and grey purse as belonging to her sister.
In early November 1987, Lockhart and the blue Toyota spent several days at a motel in Toledo, Ohio. Lockhart told the motel manager that he had lost his keys and requested a ride to a local car dealer so he could get a new set. A motel employee drove Lockhart to a dealer, where Lockhart test-drove a red Chevrolet Corvette. During the test drive, Lockhart pulled a gun on the car salesman, robbed him of his wallet, pushed him out of the car and drove off. A few days later, Toledo police were called to the motel to tow the blue Toyota which Lockhart abandoned. The motel manager and employee identified Lockhart at trial.
T.W., a woman in Chicago who had dated Lockhart, testified that Lockhart missed her Halloween party in 1987, but that he came back to Chicago in a red Corvette a week or two later. He told her he planned to go to Florida.
Less than three months later, on January 20, 1988, fourteen-year-old Jennifer Colhouer was raped and stabbed to death in a bedroom of her parents' home in suburban Tampa, Florida. Eyewitnesses placed Lockhart and the red Corvette in the neighborhood on the day of the murder. A DNA comparison of semen found on the victim and blood drawn from Lockhart showed a match. There were several striking similarities to the Gallagher murder, so the trial judge admitted evidence of the Florida crime under the modus operandi rule to prove identity.
Lockhart's crime spree eventually took him to Texas, where he murdered a police officer in the city of Beaumont on March 22, 1988. A Texas jury found him guilty of capital murder on October 4, 1988. During jury selection, Lockhart tried to escape the courtroom by jumping through a third-story glass window. He was injured in the fall. While recuperating in the hospital, he volunteered a statement that he had killed between twenty and thirty people and inquired as to how that might compare with Ted Bundy. As with the armed robbery from Ohio, evidence about Lockhart's crime and statements in Texas were kept from the jury until the penalty phase.
I. Evidence of Other Crimes
Lockhart argues that the trial court erred by admitting evidence of the Chicago robbery and the Florida murder during the State's case-in-chief. We discuss the admissibility of these two incidents separately, turning first to the robbery of T.L. in Chicago on October 12, 1987.
A. Chicago Robbery
Lockhart correctly contends that evidence of criminal acts other than those charged are generally inadmissible to prove a defendant's guilt. However, "such evidence may properly be introduced for the purpose of showing intent, motive, purpose, identity, or a common scheme or plan." Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872. "That is, such evidence may be admissible despite its tendency to show bad character or criminal propensity, if it makes the existence of an element of the crime charged more probable than it would be without such evidence." Id.
The facts before the trial court clearly supported the trial judge's decision to admit the evidence: Lockhart robbed T.L. of her purse on Monday, Gallagher was killed in an adjacent county and her purse taken on Tuesday, T.L. retrieved her purse on Thursday and found Gallagher's purse and calendar inside. This is strong cireumstantial evidence connecting Lockhart to the murder of Windy Gallagher. It is probative of identity and thus makes the existence of an element of the crime charged more probable than it would be without such evidence. The fact that T.L.'s purse passed through the hands of one or more persons before she recovered it goes to the weight of the evidence in this instance and not to its admissibility. There was no error in admitting T.L.'s testimony.
B. Florida Murder
We likewise affirm the trial court's decision to admit evidence about the killing of Jennifer Colhouer as a "signature crime" probative of identity.
As we said recently in Lannan v. State (1992), Ind., 600 N.E.2d 1334, in a review of the various theories under which evidence of other crimes may be admitted:
[The State may prove identity by showing that the similarities between the pri- or offense and the crime charged are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person. "However, the repeated commission of similar crimes is not enough to qualify for the exception to the general rule. The acts or methods employed must be so similar, unusual, and distinctive as to earmark them as the acts of the accused."
Id. at 1340 (citation omitted) (quoting Willis v. State (1978), 268 Ind. 269, 272, 374 N.E.2d 520, 522).
Comparison of the Colhouer and Gallagher murders shows them to be earmarked as acts of the accused. Indeed, had Lake County investigators been on the seene in Florida, they no doubt would have concluded that the killer of Windy Gallagher had struck again a thousand miles away. They would have observed that both victims were teenage girls, killed in their own homes in the late afternoon hours after school. Neither case showed any signs of forced entry, suggesting the modus operandi of a criminal who enters a dwelling more through guile than strength. Both victims were found with their bras pushed up around the breasts. Both had their pants and underwear removed. Photographs show that a cloth strap has been placed around Gallagher's lower face, causing abrasions just at the chin and below; Colhouer has similarly suffered abrasions just under the chin.
Both suffered large, deep abdominal wounds in the same area, inflicted with a large knife and with great force. Both suffered wounds with irregular edges caused by a horizontal cutting motion as the blade was removed, indicating particular ferocity and an intention to mutilate. Both suffered small, prickly puncture wounds about the breasts, not fatal in and of themselves, but a sign that the perpetrator tortured his victims. Both bodies were found in a bedroom; both had been moved after the stabbings. In each case, the killer fled with a picture of his victim.
As the prosecuting attorney told the jury in final argument, Lockhart left "a signature as it were with the point of a knife." (Record at 2806). There was no error in the admission of the Florida murder. It was truly a signature crime, highly probative of the identity of Windy Gallagher's killer.
II. Pathologist's Testimony
The prosecution called a Florida pathologist, Dr. Joan Wood, in order to establish that the Colhouer and Gallagher homicides were sufficiently similar to warrant admitting evidence about Florida crime. Wood was the chief medical examiner in the Florida county where Jennifer Colhouer was murdered. She compared the autopsy reports from the two murders and rendered an expert opinion about the similarities which we have noted above. She did not personally conduct either of the postmortem examinations.
Lockhart argues without great precision that it was error to allow Dr. Wood to testify as she did. He correctly notes that no Indiana case can be found which says a pathologist can compare autopsy results prepared by two other doctors and provide an expert opinion regarding similarities. Nor, however, does he cite any case which says that she cannot.
We have long held that it is proper for an expert to give an opinion based upon an autopsy report prepared by another. Bean v. State (1978), 267 Ind. 528, 371 N.E.2d 713; Morris v. State (1977), 266 Ind. 473, 364 N.E.2d 132, cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462. It requires no great leap to allow an expert to give an opinion based on two such reports.
Expert testimony is admissible so long as the subject matter is related to some scientific field beyond the knowledge of the average lay person. The witness must have sufficient skill, knowledge or experience in the field such that the witness' opinion or inference will aid the trier of fact. Wissman v. State (1989), Ind., 540 N.E.2d 1209. The determination of whether a witness is qualified to testify as an expert is assigned to the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. Id.
Lockhart does not dispute Dr. Wood's qualifications as an expert: fourteen years a doctor, conductor of more than 4000 autopsies, expert witness in more than 200 trials. Dr. Wood's testimony clearly was within her area of expertise in a scientific field beyond the knowledge of the average lay person. There was no abuse of discretion in allowing it.
III. DNA Evidence
Lockhart next challenges the admissibility of DNA test results used to link him to the Florida murder through comparison of genetic material. He contends that the testing procedures employed by Cell-mark Laboratories were unreliable. Subsequent to the briefing of this appeal, we addressed an identical claim in Hopkins v. State (1991), Ind., 579 N.E.2d 1297, concluding that "once the trial court has ruled the witness qualified as a matter of law to give expert testimony regarding DNA analysis, subsequent evaluation of that evidence goes only to its weight as a matter of fact." Id. at 1303. Lockhart does not challenge the qualifications of the DNA experts who testified, only their methods. Hopkins thus disposes of his claim.
IV. Nonstatutory Aggravators
During the penalty phase the State presented evidence of two aggravating circumstances: that Lockhart's killing of Windy Gallagher occurred while he committed or attempted to commit a robbery, Ind.Code Ann. § 85-50-2-9(b)(1)(G) (West Supp.1992), and that Lockhart had been convicted of another murder, Ind.Code Ann. § 35-50-2-9(b)(7). The State also introduced the following evidence of Lock-bart's prior criminal history: (1) a Wyoming robbery conviction; (2) an Ohio burglary allegedly committed by Lockhart on August 4, 1987, in which he stole the gun used to kill the Texas officer; (8) the Ohio robbery allegedly committed by Lockhart on November 9, 1987, during which he took the red Corvette; and (4) Lockhart's alleged rape of his ex-wife on November 7 and 8, 1987.
Appellant argues that the trial court erred when it allowed the State to introduce such evidence during its case-in-chief when the conduct had not been designated as an aggravating circumstance in the State's death penalty count. Appellant argues that the Indiana death penalty statute does not permit "the State to conduct a witch hunt which rambles through the defendant's entire criminal history, as was done here." (Appellant's Brief at 60). Because appellant did not object to the admission of the evidence about his criminal history at trial, however, such error was not preserved for appeal. Woods v. State (1989), Ind., 547 N.E.2d 772, 796, on reh'g (1990), Ind., 557 N.E.2d 1325, cert. denied, - U.S. -, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991).
V. Evidence of an Unrelated Murder
As we noted earlier, during the guilt/innocence phase of this case the jury heard evidence of an unrelated, unadjudi-cated murder allegedly committed by Lockhart in Florida. At the conclusion of the presentation of evidence in the guilt/innocence phase the court instructed the jury to consider the evidence of that other murder only on the issue of identity.
Lockhart argues that the trial court erred when it allowed the same jury to make a sentencing recommendation when the jury already was unduly prejudiced against him by hearing the evidence of the Florida murder and by having convicted him of the instant murder. Although the State did not charge the aggravating circumstances of committing another murder at any time, Ind.Code Ann. § 85-50-2-9(b)(8), appellant argues that the court's reading to the jury the list of all twelve possible aggravating circumstances, including (b)(8), may have led the jury to believe it could rely on the Florida murder in ree-ommending imposition of the death penalty. The aggravating circumstance of commission of another murder not reduced to conviction is unconstitutional as applied when the other murder is unrelated to the instant murder. State v. McCormick (1979), 272 Ind. 272, 397 N.E.2d 276.
Following are the facts pertinent to this issue.
The judge read to the jury the list of twelve aggravating circumstances from the death penalty statute, Ind.Code Ann. § 35-50-2-9(b), on three occasions during the trial. First, he instructed each of the two jury panels on the death penalty statute. He instructed the first panel:
The defendant is also facing a second count and for procedural reasons that second count won't even be read to you, but it alleges facts to raise the death penalty and a separate penalty section of the statute provides that the State may seek the death penalty be imposed upon the defendant by charging the existence of at least one of the following aggravating factors:
1. The defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery.
2. The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or property.
3. The defendant committed the murder by lying in wait.
4. The defendant who committed the murder was hired to kill.
5. The defendant committed the murder by hiring another person to kill.
6. The victim of the murder was a corrections employee, fireman, Judge or law enforcement officer, and either the victim was acting in the course of duty or the murder was motivated by an act the victim performed while acting in the course of duty.
7. The defendant has been convicted of another murder.
8. The defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder.
9. The defendant was under a sentence of life imprisonment at the time of the murder.
10. The defendant was serving a term of imprisonment and on the date of the murder the defendant had 20 or more years remaining to be served before the earliest possible release date as defined by I.C. 85-88.
11. The defendant dismembered the victim.
12. The victim of the murder was less than 12 years of age.
Now, the State must prove to you the aggravating factor or factors beyond a reasonable doubt and I'm sure you all heard this term before.
(Record at 20-22) (emphasis added). The judge also instructed the first panel that the jury is not required to consider all the possible aggravating circumstances:
Now, the statute requires that you consider the aggravating factors that are charged. It is not going to include all of these factors. I've just read everything in the statute that provides for the penalty, but those have not all been charged. You're to consider the mitigating circumstances and recommend to the Judge whether or not the death penalty should be imposed.
(Record 24-25).
The judge instructed the second jury panel on the statutory aggravating circumstances:
... in the event a verdict is returned of guilty and only in that event ... the law provides that the State may seek to have the death penalty imposed by alleging on a separate sheet from the charging information certain facts, any one of which can be one of the aggravating factors, which is listed in the statute. The first of these could be, the defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or burglary.
Secondly, they may seek the death penalty by alleging that the defendant committed the murder by the unlawful detonation of an explosive with the intent to injure person or damage property.
The third ground by statute is, that the defendant committed the murder by lying in wait.
The fourth ground is that the defendant who committed the murder was hired to kill.
The fifth ground, the defendant committed the murder by hiring another person to kill.
Sixth ground is that the victim of the murder was a corrections employee, fireman, Judge, or law enforcement officer, and either the victim was acting in the course of duty or the murder was motivated by an act the victim performed while acting in the course of duty.
The seventh ground, the defendant has been convicted of another murder.
The eighth ground, the defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder.
Nine, the defendant was under a sentence of life imprisonment at the time of the murder.
Ten, the defendant was serving a term of imprisonment and on the date of the murder the defendant has twenty or more years remaining to be served before the earliest possible release date as defined by 1.C. 85-8-8 [sic].
Eleven, the defendant dismembered the victim.
Twelve, the victim of the murder was less than twelve years of age.
Now, the State must prove one of those aggravating factors beyond a reasonable doubt in order for the death penalty to be imposed, but the defendant may present additional evidence relevant to the aggravating circumstances, any one of those that I've mentioned....
(Record at 583-585) (Emphasis added). The judge did not tell the second panel that it would determine only whether the charged aggravating circumstances were proven.
At one point during jury selection, the prosecuting attorney explained to potential jurors that if a penalty phase occurs, the State will then have to prove that "this is the type of murder that fits into one of about eleven categories that make [defendant] eligible." (Record at 657); see also (Record at 729) (explaining that State must establish the murder is a special kind of murder, falling into one of twelve categories of aggravators).
After return of the guilty verdict and before presentation of evidence in the penalty phase, the court instructed the jury on the death penalty statute. The jury was informed that "[the law provides that the State may seek the death penalty for Murder by charging the existence of at least one of the following aggravating cireumstances...." (Record at 297A). The court read to the jury the twelve aggravating cireumstances as defined by the statute, including: "8. The defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder." (Id.) The court informed the jury of the two charged aggravating factors, and that the burden is on the State to prove beyond a reasonable doubt one or both of the charged aggravating cireumstances. The court also instructed the jury that it could consider all the evidence introduced at the trial stage of the proceedings together with any new evidence presented during the sentencing hearing.
In the court's instructions at the close of the penalty phase, it again read the jury the list of twelve aggravating cireumstances from the death penalty statute. The court then told the jury the elements the State must prove to establish the two charged aggravating circumstances. The court also instructed the jury: "The list of aggravating circumstances which were previously read to you are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or cireumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case." (Record at 819A) Finally, the court told the jury: "You are to consider both aggravating and mitigating circumstances and ree-ommend whether the death penalty should be imposed. You may consider all the evidence introduced at the trial resulting in the defendant's conviction of murder, together with any new evidence presented at this hearing." (Record at 824A).
We agree with Lockhart that the trial court erred when it read to the jury on several occasions the list of twelve aggravating circumstances, including the unadjudicated murder provision. If the State had charged the unadjudicated Florida murder as an aggravating circumstance in this case under Ind.Code Ann. § 85-50-2-9(b)(8), use of such aggravator would have been error because the aggravator is unconstitutional when applied to a situation in which the other murder is not reduced to conviction and is unrelated to the instant murder. McCormick, 272 Ind. 272, 397 N.E.2d 276.
This Court held in McCormick that subsection (b)(8) of the death penalty statute is unconstitutional when the other unadjudi-cated murder is unrelated to the instant murder because a defendant's due process rights are violated when he is in effect tried on the other murder claim during the penalty phase "to a jury which has been undeniably prejudiced by having convicted him of an unrelated murder." 272 Ind. at 278, 397 N.E.2d at 280. The Court reasoned that proving the unrelated murder to an undeniably prejudiced jury in the penal ty phase opens the door to death sentence recommendations resting upon a level of proof lower than proof beyond a reasonable doubt. Id.
The instruction listing the twelve statutory aggravating circumstances was not necessary to convey to the jury its duties in applying the law to determine the sentence in this case, and drawing the jury's attention to aggravator (b)(8) was error when the jury had heard in the guilt/innocence phase properly-admitted evidence of the unrelated Florida murder.
When a trial court errs in this respect, we reverse only if defendant establishes he was prejudiced by the court's instructions. Springer v. State (1984), Ind., 463 N.E.2d 243. On appeal, defendant bears the burden of showing prejudice to his substantial rights. See Boyd v. State (1991), Ind., 564 N.E.2d 519.
Lockhart claims that the court's instructions prejudiced him to the extent the instructions allowed the jury which convicted him to consider evidence of the unrelated Florida murder as an aggravator in the penalty proceeding. He fails to demonstrate, however, how the judge's instructions in any way affected the outcome of the penalty proceeding.
Although the jury was informed of all possible aggravating cireumstances in the death penalty statute, it was charged to determine whether the State carried its burden of proving beyond a reasonable doubt the existence of one of the two charged aggravators. In addition, in determining sentence, the trial judge found that the State proved beyond a reasonable doubt that Lockhart killed Windy Gallagher while committing or attempting to commit a robbery and that he had a previous conviction for murder. The court further found that no mitigating circumstances were present. It held that the mitigating factors were outweighed by the aggravating circumstances and thus a death sentence was entered.
Given the strength of the evidence supporting the aggravating cireumstances and the absence of mitigating factors in this case, we conclude that the court's erroneous instructions were harmless.
VI. Texas Conviction as an Aggravating Circumstance
Lockhart argues that the trial court erred in denying his motion to dismiss the second allegation of the death penalty count. Count II of the amended information contained the State's request for the death penalty, and charged the following as an aggravating circumstance supporting the death penalty: "On or about October 4, 1988, Michael Lee Lockhart was convicted of murder in the 186th District Court of Bexar County, Texas, Cause 88-CR-3197." (Record at 18A). Under Ind.Code Ann. § 35-50-2-9(a) (West Supp.1992), the State is entitled to seek a death sentence for murder by alleging at least one of the twelve aggravating circumstances enumerated in subsection (b). Under subsection (b)(7), the State establishes an aggravating circumstance if it proves beyond a reasonable doubt that "[the defendant has been convicted of another murder."
Appellant argues that the Texas conviction was not available as a (b)(7) aggravator because that conviction was not a final conviction under Texas law. For purposes of Texas evidence rules, a conviction becomes "final" when it is affirmed on appeal. E.g., Taylor v. State, 755 S.W.2d 548, 552 (Tex.Ct.App.1988). Non-final convictions are inadmissible hearsay, Texas Rules of Criminal Evidence 808(22), in TEXAS RULES OF COURT-STATE AND FEDERAL (West 1992), and are thus not available as evidence in Texas sentence enhancement proceedings. Taylor, 755 S.W.2d at 552. Lockhart argues that because Texas courts would not recognize his Texas conviction for penalty enhancement purposes, Indiana courts should not consider the "non-final" Texas conviction for such purposes.
The trial court denied Lockhart's motion to dismiss because the Texas proceeding did in fact result in a "conviction" for murder and thus falls within the aggravating circumstance enumerated in (b)(7). The trial court concluded: "[A] sentence makes a Texas charge a Final Judgment whether appealed or not." (Record at 265A). The court determined that Texas's admissibility requirement that a conviction be affirmed on appeal is merely a rule of evidence that is "peculiar to Texas." (Fd.). Texas courts recognize that a judgment entered on a jury's verdict and assessment of punishment is indeed a "conviction." Cf. Morgan v. State, 515 S.W.2d 278, 280 (Tex.Crim.App.1974).
In incorporating a finality requirement for admission of convictions in court proceedings, Texas lawmakers apparently made a judgment that judicial economy and the integrity of penalty enhancement proceedings are furthered by prohibiting the admission of prior convictions until the validity of such convictions is affirmed on appeal. Indiana lawmakers, however, have not chosen to impose such a requirement on the admission of convictions in penalty enhancement or death penalty proceedings. The fact that Lockhart's Texas conviction eould not be used as evidence in a Texas penalty enhancement proceeding has no effect on the availability of the Texas convietion as an aggravating circumstance under the Indiana death penalty statute. Indiana has not chosen to require a conviction to be "final" for admission in subsequent proceedings.
In using Lockhart's Texas murder conviction as an aggravating circumstance supporting a death sentence Indiana courts rely on the Texas proceeding's determination of the facts and the defendant's guilt or innocence. Indiana courts do not, however, rely on another state's laws to determine the admissibility of the other state's convictions in Indiana proceedings or to determine the effect of such convictions under Indiana law. We apply this principle in the context of habitual offender proceedings, see, e.g., Galmore v. State (1984), Ind., 467 N.E.2d 1173 and it is just as applicable to death penalty proceedings.
In habitual offender cases we have held that the interpretation of a prior conviction from another jurisdiction is determined by Indiana law. "[UJnder Indiana law the classification of crimes as felonies or misdemeanors in other states is not relevant for purposes of establishing a prior felony conviction in determining habitual criminal status in Indiana." Galmore, 467 N.E.2d at 1177; see also Collins v. State (1981), 275 Ind. 86, 97, 415 N.E.2d 46, 54-55, cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (Arizona's classification of burglary not relevant for purposes of establishing prior felony conviction in Indiana habitual criminal proceeding).
Therefore, we look to Indiana law to determine whether Lockhart's Texas murder conviction qualifies as evidence that "[the defendant has been convicted of another murder." Ind.Code Ann. § 35-50-2-9(b)(7) (West Supp.1992). In cases interpreting our death penalty statute, we have stated that a "conviction" under (b)(7) "means the entry by the trial court of a judgment of conviction." Hough v. State (1990), Ind., 560 N.E.2d 511, 519, corrected on reh'g; accord Thompson v. State (1986), Ind., 492 N.E.2d 264. It is also instructive to note that the Texas Court of Criminal Appeals itself holds that there need not be a "final" conviction for prior criminal conduct to be admissible in the penalty phase of a capital trial. See, e.g., Hammett v. State, 578 S.W.2d 699 (Tex.Crim.App.1979).
The evidence demonstrates that the State did prove beyond a reasonable doubt that Lockhart was indeed "convicted" of another murder in the Texas proceeding. Therefore, the trial court did not err in denying Lockhart's motion to dismiss the second allegation of the death penalty count.
The record in this case demonstrates that the trial court was warranted under Indiana law in entering the conviction and the penalty. We affirm the judgment of the trial court.
GIVAN, DICKSON and KRAHULIK, JJ., concur.
DeBRULER, J., concurs and dissents with separate opinion.
[OPINION BY DeBRULER, Justice, type=concurring-in-part-and-dissenting-in-part]
DeBRULER, Justice,
concurring and dissenting.
In this instance, the trial judge concluded that there were two aggravating circumstances proved, namely, 1) that the killing occurred while committing a robbery, (b)(1); and 2) the conviction of another murder, (b)(7); and that the weight of each was greater than the weight of mitigating circumstances in that there were no mitigating circumstances to be weighed.
In alleging the (b)(1) aggravator, the State argued. that appellant "intentionally killed Windy Gallagher during the commission or attempted commission of a robbery." There was no more specific allegation, and the trial court correctly instructed the jury pursuant to the robbery statute that the state must prove a taking of property "by" threat, force, or fear. I.C. 35-42-5-1. "By," within the robbery statute, does not signify close proximity in time, place, and continuity of action, as does "while" or "during" in the case of the felony-murder statute, or the death sentence statute in (b)(1), but signifies instead the means or agency by which the taking is accomplished. Payton v. State (1965), 246 Ind. 401, 206 N.E.2d 143; Cross v. State (1956), 235 Ind. 611, 137 N.E.2d 32; Rains v. State (1893), 137 Ind. 83, 36 N.E. 532. The cireumstantial evidence here is not sufficient to warrant the inference beyond a reasonable doubt that the violence against the victim was the means or agency of the taking of the victim's purse and photo. There is but a suggestion that the victim's fear and suffering, as severe and as horrible as it must have been, was related to the taking of her small things. The (b)(1) aggravator consists of an intentional killing during the taking or attempt at taking property by violent means. There is some circumstantial evidence of all of the elements of this aggravator. While circumstantial evidence can have sufficient substance to warrant the conclusion of a reasonable trier of fact beyond a reasonable doubt that this aggravator exists, in my view this circumstantial evidence does not have that quality. Appellant does not specifically raise this issue; however, it is part and parcel of this Court's independent assessment of the appropriateness of the ultimate penalty. Consequently, I find that the penalty is not appropriately rested upon this aggravator.
In alleging the (b)(7) aggravator, the State argued that "the defendant has been convicted of another murder." I construe this aggravator to have three essential elements: (1) that the conviction be final in the sense that the determination of guilt was affirmed on direct appeal, or that the direct appeal of the conviction was waived; (2) that the conviction occurred prior to the act of killing upon which the present charge is based; and (8) that the conviction was for an intentional or knowing murder rather than a felony-murder. The majority opinion rejects the finality requirement of (1), above; the requirement of (2) above was rejected in Hough v. State (1990), Ind., 560 N.E.2d 511; and the requirement of (8) above is satisfied. I respectfully dissent to the construction placed upon this aggravator in the majority opinion. Since the State did not prove that the Texas conviction was affirmed on appeal, or appeal therefrom was waived, the penalty of death is not appropriately rested upon this aggravator. Consequently, I would set aside the sentence of death and order a new sentencing hearing before the court to permit the State to prove the (b)(7) aggravator, or in lieu thereof, the imposition of a sentence of sixty years. I do, however, vote to affirm the conviction.
Evidence of this armed robbery was not presented to the jury until the death penalty phase.
Bundy, one of the most infamous criminals of our era, was executed by the State of Florida on January 24, 1989, "nearly 15 years after he embarked on a trail of murder that is believed to have accounted for the deaths of 30 or more young women around the nation. Most of his victims were strangled, then sexually abused, then mutilated." Dirk Johnson, For Families, Killer's Death Eases Doubts but Not Pain, NY. Times, Feb. 13, 1989, at Al.
Naturally, Dr. Wood would not have conducted the autopsy of Windy Gallagher in Indiana. The autopsy of Jennifer Colhouer was conducted by another Florida doctor who died six months later. Hence, he was unavailable for trial.
Ex parte Michael Lee LOCKHART.
No. 25669-01.
Court of Criminal Appeals of Texas, En Banc.
Nov. 22, 1993.
Mandy Welch, Houston, for appellant.
Robert Huttash, State’s Atty., Austin, for the State.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
This Court affirmed applicant’s capital murder conviction and sentence of death on direct appeal. Lockhart v. State, 847 S.W.2d 568 (Tex.Cr.App.1992). The trial court has scheduled applicant’s execution to be carried out on or before sunrise, November 23, 1993.
By the instant motion, applicant seeks a stay of execution in order to allow time for the Texas Resource Center to recruit an attorney to represent him and prepare a post conviction application for writ of habeas corpus under Art. 11.07, V.A.C.C.P.
Applicant first presented his motion for a stay of execution to the convicting court. The trial court denied the relief requested after noting no colorable claim for habeas corpus relief is set forth in the motion and no effort has heen made to invoke the trial court’s jurisdiction. See Tex.RApp.Pro. Rule 233.
We find we do not have jurisdiction to grant the relief requested by applicant. The granting of such relief would in no manner tend to protect this Court’s jurisdiction or enforce a judgment of this Court. See Tex. Const., Art. V, Sec. 5. Therefore, the relief sought is denied.
IT IS SO ORDERED.
OVERSTREET, J., dissents.
[OPINION BY McCORMICK, Presiding Judge, type=concurrence]
McCORMICK, Presiding Judge,
concurs.
I join the Order of the Court denying applicant’s motion for a stay of execution. However, to place this last minute motion in proper perspective, I hereby incorporate the Order of the trial court issued earlier this date in this concurrence.
APPENDIX
No. 88-CR-3197
In the 186th District Court
of Bexar County, Texas
State of Texas Vs.
Michael Lee Lockhart
ORDER
This defendant has just filed a motion seeking to have this Court issue a stay of execution which is presently set for Tuesday, November 23,1993. The defendant was convicted and sentenced to death on October 25, 1988.
This conviction was affirmed by the Texas Court of Criminal Appeals and rehearing was denied February 24,1993. (847 S.W.2d 568). It appears that rather than seek habeas corpus relief after that date, the defendant elected to file a direct petition with the United States Supreme Court which denied him relief on October 4,1993. (114 S.Ct. 146; 62 L.Week 3247).
In his motion for stay, the defendant alleges that he desires to file a post conviction application for habeas corpus relief but that he has no counsel. He also alleges he has been assisted in his present claim by attorneys from the Texas Resource Center. The Court has also just received a letter from the Texas Resource Center dated November 17, 1993.
In that correspondence, Mandy Welch, Executive Director of the Texas Resource Center advised that “the Center should provide you with any information it believes to be relevant to the trial court in Mr. Lockhart’s future proceedings.” She further indicated the duty of the Center was “to recruit and assist counsel for death row inmates in state court.”
Finally, she stated: “The existence of an imminent execution date makes it virtually impossible to recruit qualified counsel. Few attorneys will consider taking a case without some assurance that they can become familiar with the case and provide adequate representation before being faced with an execution date.”
ISSUE
The issue that must be considered is whether the defendant has justified his request for a stay to enable counsel to be found to represent him or whether his current status is the result of a deliberate and calculated manipulation of the Texas criminal justice system.
The defendant was represented on direct appeal by court appointed counsel, Mr. Doug Barlow. On December 17, 1992, Mr. Barlow informed Jeffrey Pokorak of the Texas Resource Center (TRC) that he would not file a motion for rehearing with the Texas Court of Criminal Appeals.
FINDINGS OF FACT
The Court finds as facts based on affidavits furnished to the Court and made a part of this record:
1. On December 17, 1992, the same date Mr. Barlow indicated he would not seek rehearing before the Court of Criminal Appeals, Eden Harrington of TRC requested a 45 day extension of time in which counsel could be recruited and file a motion for rehearing. That extension was granted by the Court of Criminal Appeals until Feb. 1,1993.
2. On January 14,1993, TRC checked out the appellate record.
3. On February 2, 1993, a motion for rehearing was filed with the Court of Criminal Appeals by Stephanie L. Barclay.
4. On February 8, 1993, the defendant wrote to TRC.
5. On February 10, 1993, the defendant was visited by Phyllis L. Crocker of TRC. On every visit, TRC attorneys signed a form indicating they “affirm that my visit with this inmate is for the purpose of assisting me in matters relating to the attorney-client or attorney-witness relationship and no other purpose.”
6. On February 11, 1993, TRC corresponded with the defendant.
7. On February 17, 1993, the defendant corresponded with TRC.
8. On February 23, 1993, TRC corresponded with the defendant.
9. On February 24, 1993, the Court of Criminal Appeals denied rehearing.
10. On February 24, 1993, TRC Corresponded with the defendant.
11. On March 23, 1993, TRC corresponded with the defendant.
12. On May 24, 1993, the defendant corresponded with TRC.
13. On May 25, 1993, the defendant filed a Cert. Petition with the United States Supreme Court, being represented by Daniel Givelber, 400 Huntington Avenue, Boston, MA 02115. The record does not reflect how Mr. Givelber came to be counsel, but the clear implication is that he entered the case through TRC. In his motion, the defendant states: “I was represented in the Supreme Court by Daniel Givelber. Mr. Givelber’s representation was limited to my certiorari proceedings ...”
14. On July 2, 1993, this court scheduled execution for November 23,1993. The Court specifically provided almost 5 months for the defendant to initiate post-conviction proceedings.
15. On July 13, 1993, the Institutional Division received the death warrant and notified the defendant.
16. On July 14, 1993, the very next day, the defendant was visited by Lynn Lamberty of TRC with whom he had previously corresponded on May 24,1993. Neither the defendant nor TRC took any action in the trial Court until almost 5 months thereafter and immediately prior to his scheduled execution date.
17. On October 4, 1993, the Supreme Court denied relief.
18. On October 27, 1993, TRC corresponded with the defendant.
19. On November 5, 1993, the defendant was visited by Elizabeth Cohen of TRC.
20. On November 10,1993, the defendant was visited by Lynn Lamberty of TRC.
21. On November 12,1993, the defendant was visited by Lynn Lamberty of TRC.
22. On November 17,1993, the defendant filed a pro-se motion for stay claiming he had no counsel or access to counsel.
23. On November 19,1993, the TRC notified the court that Gregory Burr Macaulay of Washington D.C. was willing to undertake representation in this case subject to specified conditions:
—pay him $50 per hour
—pay for 7-10 trips to Texas for himself and either co-counsel or his paralegal
—appoint a second counsel at the same rate
—appoint a full time paralegal
—receive periodic payments monthly
—receive 180 days in which to file a petition for habeas corpus application
CONCLUSIONS
Both the defendant and the Texas Resource Center have had more than ample time to recruit and obtain counsel to file an application for habeas corpus relief since his conviction was affirmed on February 24, 1993, 9 months have passed since that date. The Texas Resource Center located an attorney willing to represent the defendant just 2 days after filing the motion for stay.
The defendant and the Texas Resource Center have deliberately and intentionally manipulated access to habeas corpus review as a matter of strategy and not the result of legitimate misfortune.
The defendant has been in virtually constant contact with TRC even before this conviction was affirmed by the Court of Criminal Appeals.
Neither the defendant or TRC has requested the appointment of counsel in a period of almost 9 months. It is only on the very verge of execution that the defendant claims a need for help in representation — help that at least one lawyer was willing to give under certain conditions but ONLY on the eve of execution.
Further, nobody has even advanced a meritorious ground of relief that if found to exist would result in a beneficial ruling to the defendant.
No one has explained why nothing was done by either the defendant or TRC until days before his scheduled execution. No counsel was recruited nor is there any showing of any attempt at recruitment. No request for the appointment of counsel was advanced by the defendant. Yet during all of this time, the defendant and TRC were meeting and corresponding on a regular and frequent basis. On each meeting, TRC attorneys affirmed that the visit was solely “related to the attorney-client ... relationship and for no other purpose.”
By waiting until shortly before execution to request counsel and a stay, both the defendant and TRC are dangling his life in a perilous maneuver deliberately contrived to pressure the legal system to delay his execution. The defendant is in an emergency he and TRC created, and this type of manipulation should not be permitted to prevail by any Texas or Federal Court.
The record does not support the TRC claim that their purpose is limited to recruitment of counsel. The record is full of instances where TRC, when it elected to do so, represented this defendant. TRC attorneys sought and received from the Court of Criminal Appeals, an extension to file a motion for rehearing. They obtained the appellate record. They frequently visited the defendant certifying on each occasions that the visit was in furtherance of the attorney-client relationship. And finally, they prepared and filed the defendant’s “pro-se” application for stay and other related motions, acting at all times as his legal representative.
The status of TRC can not, like the tide, roll in and roll out when it suits their purpose. They either represent someone or they don’t. If they don’t, then they should not be heard on any issue as they have no standing. If they do, then they should be held to the same “effective representation” standards they so often use against others. And effective representation certainly requires that legal issues be addressed in a timely and orderly manner.
Their deliberate strategic plans have resulted in many other defendants receiving a stay. In fact, a stay under these circumstances has become virtually automatic and the expectations of defendants and TRC have been fulfilled. As long as courts continue to permit defendants and TRC to manipulate the orderly administration of justice, they will continue to successfully do so.
This Court does not and will not approve of such dilatory actions that cause the disruption of our legal system. The motion for stay is hereby DENIED, and the Court further strongly urges that the Court of Criminal Appeals and the Federal Courts do likewise. To do otherwise will permit this type of sham to perpetuate, proliferate and continue to bring discredit and disrespect to our legal system.
The clerk will immediately serve this notice by telephone and FAX to:
1. The Clerk of the Court of Criminal Appeals
2. The Clerk of the 186th District Court of Bexar County
3. The District Attorney of Jefferson County, Texas
4. The Attorney General of Texas
5. The Texas Resource Center
6. The Defendant
The Clerk mil also immediately transmit all documents in this cause by Express Overnight Mail to the Clerk of the Court of Criminal Appeals.
Since this case originated in Jefferson County, the District Clerk of Jefferson County is ordered to perform all of the actions reflected in this Order.
Signed and entered November 22, 1993.
/s/ Larry Gist Larry Gist, Judge Presiding
Lockhart
10/25/88 Conviction and Sentence
12/2/92 Court of Criminal Appeals — affd
12/5/93 Correspondence, Court Crim.App. to Lockhart
12/10/92 Correspondence, Barlow, appellate counsel, to Lockhart
12/17/92 Barlow informed Jeffrey Pokorak (TRC) that he would not file motion for rehearing.
12/17/92 Eden Harrington (TRC) requests 45 day extension of time in which to recruit counsel and file motion for rehearing. Extension until 2/1/93 granted by Court Crim.App.
12/21/92 Correspondence, Court Crim.App. to Lockhart
1/14/93 TRC checked out appellate records (-21)
2/2/93 Motion for rehearing filed in Court Crim.App. by Stephanie L. Barclay
2/4/93 Correspondence, Court Crim.App. to Lockhart
2/8/93 Correspondence, Lockhart to TRC
2/10/93 TRC (Phyllis L. Crocker) visit
2/11/93 Correspondence, TRC to Lockhart
2/17/93 Correspondence, Lockhart to TRC
2/23/93 Correspondence, TRC to Lockhart
2/24/93 Court Crim.App. — reh’g denied
2/24/93 Correspondence, TRC to Lockhart
3/4/93. Correspondence, Court Crim.App. to Lockhart_ 3/19/93 Correspondence, Virgil Clark, atty, Toledo, OH, to Lockhart_
3/23/93 Correspondence, TRC to Lockhart
3/26/93 Correspondence, Court Crim.App. to Lockhart_ (4/1/93 Correspondence, Lockhart to Virgil Clark, atty, Toledo, OH p/24/93 Correspondence, public defender of Indiana to Lockhart_
5/24/93 Correspondence, Lockhart to TRC, Lynn Lamberty,
5/25/93 Supreme Court — Cert, petition filed by Daniel J. Givelber, 400 Huntington Ave, Boston, MA 02115
7/2/93 Trial court — Order scheduling execution for 10/23/93
7/13/93 S.O. Woods office received death warrant, Lockhart’s custody status was changed because of scheduled execution.
7/13/93 Log book in death row office shows that Lockhart was notified of new execution date by Sgt Cabeen.
7/14/93 TRC (Lynn Lamberty) visit_ B/6/93 Correspondence, public defender of Indiana to Lockhart 3/9/93 Correspondence, Lockhart to public defender of Indiana_
8/24/93 Supreme Court — Brief in opposition filed_ 9/1/93 Correspondence, Lockhart to public defender of Indiana 9/1/93 Correspondence, Supreme Court of Florida to Lockhart 9/2/93 Correspondence, public defender of Indiana to Lockhart 9/7/93 Correspondence, Lockhart to public defender of Indiana 9/17/93 Correspondence, public defender of Indiana to Lockhart
10/4/93 Supreme Court — Cert, denied
10/13/93 Correspondence, COCA (Court of Crim App) to Lockhart
10/27/93 Correspondence, TRC to Lockhart
11/1/93 Correspondence, Lockhart to TRC
11/5/93 TRC (Elizabeth Cohen) visit
11/10/93 TRC (Lynn Lamberty) visit
11/12/93 TRC (Lynn Lamberty) visit
11/17/93 Trial court (Bexar) — pro se motion for stay or modification of execution date to allow TRC to recruit counsel. Request 120 days to recruit, 120 days to file.
[OPINION BY CLINTON, Judge, type=dissent]
CLINTON, Judge,
dissenting.
As the summary order of the Court indicates, this applicant is without counsel, yet is scheduled to be put to death at an early morning hour of Tuesday next. Thus, without benefit of counsel he is reduced to filing pro se his first post-conviction petition for a writ of habeas corpus and representing himself because this Court refuses to grant his motion to stay his impending execution so that the Texas Resource Center may recruit competent counsel to assist and to represent him.
I respectfully dissent, urging this Court to confront head on “the crisis stage in capital representation” in this State. The Spangen-burg Group, A Study of Representation of Capital Cases in Texas (State Bar of Texas), at i-ii.
Meanwhile, we should consider the motion and supporting papers as pleadings in the nature of an application for extraordinary relief, thereby invoking the constitutional original jurisdiction of this Court under Article V, § 5, para, three, and as further prescribed by Article 4.04, § 1, V.A.C.C.P.
On that basis we should cause the Court to stay the scheduled execution of applicant.
Further, I would order and direct the judge of the convicting court below to recall its warrant of execution pursuant to Tex. R.App.Pro. 233; to exercise its authority to determine whether applicant is “indigent” within the meaning of Articles 26.04 and 26.05, V.A.C.C.P.; if so, to determine whether “the interests of justice” require that applicant have representation of counsel in a post-conviction habeas corpus proceeding; and, if so, to appoint competent counsel to aid and assist applicant in preparing and filing a petition for such writ of post-conviction habeas corpus in accordance with Article 11.07 and related provisions in Chapter Eleven, Y.A.C.C.P., and to represent applicant in the resultant proceedings under Article 11.-07, including proceedings upon return of the writ and accompanying record to this Court.
With available assets at hand this Court and judges of convicting courts must utilize them to ease the current “crisis in capital representation.” We should not be reluctant to preserve resort to postconviction remedies on account of some perceived fault in the representative of the party seeking benefits of those remedies.
Michael Lee LOCKHART, Appellant, v. STATE of Florida, Appellee.
No. 82096.
Supreme Court of Florida.
March 16, 1995.
Rehearing Denied June 1, 1995.
James Marion Moorman, Public Defender and Andrea Norgard, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Michael Lee Lockhart, who pleaded guilty to first-degree murder for killing fourteen-year-old Jennifer Colhouer, appeals the death sentence imposed. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.
We affirm Lockhart’s conviction and death sentence.
Colhouer was killed in 1988 after Lockhart entered her Pasco County home. Using a knife from the Colhouer kitchen, Lockhart inflicted a number of wounds described as pricking, prodding, or teasing wounds. He also bound Colhouer’s arms, strangled her with a towel, and stabbed her at least seven times in the abdomen. Some of the stab wounds were so deep that her internal organs protruded. The medical examiner testified that Colhouer could have been conscious for as long as three minutes after Lockhart began to strangle her. As Colhouer was dying, Lockhart turned her over and raped her anally.
Assistant Public Defender William Eble initially was appointed to represent Lockhart. A month later he moved for a continu-anee and to withdraw, arguing that he could not be ready when trial started because of his workload, the complexity of the case, and the travel required due to Lockhart’s out-of-state convictions. The judge denied Eble’s motions.
Later in that hearing, Lockhart pleaded guilty against Eble’s advice. Lockhart then asked the court to dismiss Eble because he wanted to represent himself. The court refused to dismiss Eble completely. Instead, he kept Eble on as “advisory counsel.” As advisory counsel, Eble would be present in the courtroom, but Lockhart would not be required to accept his advice. Because Lockhart did not want to present mitigation, the judge signed an order prohibiting Eble from spending county funds to investigate potential mitigation without Lockhart’s direction.
The trial court refused Lockhart’s request to sentence him without impaneling a jury for the penalty phase. When the penalty phase began, Eble again sought to withdraw. He argued that Florida statutes precluded advisory counsel and that ethical obligations required him to act against Lockhart’s wishes. Lockhart again said he wanted to represent himself, and the court allowed Eble to withdraw. Eble would be available if Lockhart needed to consult him, but he was not required to remain in the courtroom.
During the penalty phase, the State presented evidence of Lockhart’s robbery conviction in Wyoming and of his capital convictions in Texas and Indiana. Lockhart did not present any witnesses. His closing statement included a request to jurors that they “[d]o exactly what the District Attorney asks you. Do the right thing, and that is return the death penalty.”
The jury voted unanimously to recommend the death penalty. In sentencing Lockhart to death, the trial judge found four aggravating factors: (1) previous conviction of another capital felony or of a felony involving the use or threat of violence to the person; (2) murder committed while engaged in the eom-mission of, or an attempt to commit, a sexual battery; (3) murder was especially heinous, atrocious, or cruel; and (4) murder committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification. § 921.141(5)(b), (d), (h), (i), Fla. Stat. (1989). The trial judge did not find any statutory or nonstatutory mitigation.
Lockhart raises twelve issues on this direct appeal.
Contrary to Lockhart’s assertions, we find that he understood the nature of the charges against him and the consequences of pleading guilty to first-degree murder. Thus, the trial court did not err in accepting his plea.
Lockhart next argues that the trial court erred in failing to conduct a Faretta inquiry when he initially asked to represent himself during a pretrial hearing. At that time, the judge did not grant his request. Instead, the judge allowed Lockhart to direct his defense, but ordered defense counsel to remain in an advisory capacity. The State indicated during oral argument that Lockhart consulted Eble during the pretrial period about clothing for trial, medical records, and help in securing a witness. When defense counsel moved to withdraw at the start of the penalty phase and Lockhart renewed his request to proceed pro se, the judge conducted a Faretta inquiry. The record shows that Lockhart made a knowing and intelligent waiver of counsel after the trial judge informed him about the dangers and disadvantages of self-representation. We find no merit to this issue.
Lockhart also contends that the trial court erred in allowing Detective Fay Wilber, who investigated Colhouer’s murder, to testify about the homicides in Indiana and Texas because he had no opportunity to rebut the unreliable hearsay testimony. Wilber had attended parts of both out-of-state trials and had reviewed case files from those crimes.
Florida’s death penalty statute allows the introduction of hearsay testimony during capital sentencing proceedings. § 921.141(1), Fla.Stat. (1989). Lockhart had the opportunity to cross-examine Detective Wilber. On a few occasions, the trial judge restricted questioning because Lockhart interrupted the witness or because he tried to testify himself, but the judge did not abuse his discretion.
As his next issue, Lockhart argues that the trial court erred in allowing Detective Wilber to testify about the out-of-state crimes and to show eight photographs from the Indiana crime. Details of prior violent felony convictions involving the use or threat of violence to the victim are admissible in the penalty phase of a capital trial. Waterhouse v. State, 596 So.2d 1008, 1016 (Fla.), cert. denied, — U.S. —, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992). Such testimony helps determine whether “the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the judge and jury.” Elledge v. State, 346 So.2d 998, 1001 (Fla.1977).
Evidence of other violent crimes should not be admitted when it is “not relevant, gives rise to a violation of a defendant’s confrontation rights, or the prejudicial value outweighs the probative value.” Rhodes v. State, 547 So.2d 1201, 1205 (Fla.1989). The testimony supported the aggravating factor of prior violent felony. See § 921.141(5)(b), Fla.Stat. (1989). Although Detective Wilber and the medical examiner testified in some detail about the Indiana crime, the detail helped show the similarity of the Indiana and Florida crimes. It also was a valid attempt by the State to try to establish the cold, calculated, and premeditated aggravating factor. Under the facts of this case, the prejudicial value of the testimony did not outweigh its probative value, so the trial court did not err in admitting the testimony.
In addition, there was no error in admitting the eight photographs from the Indiana crime. The admissibility of photos is within the trial court’s discretion and will not be disturbed on appeal absent a showing of clear error. Wilson v. State, 436 So.2d 908, 910 (Fla.1983). Although the Indiana photos are gruesome, they show with clarity the similarities between the injuries suffered by the victims in Florida and Indiana. The photos include separate views of the Indiana victim. They did not become an impermissible feature of Lockhart’s Florida trial.
Lockhart contends that the record does not support the trial court’s finding that the crime was committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification. We disagree. This Court recently said that to find this aggravating factor:
[T]he jury must determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.
Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted).
The facts of this crime alone support a finding of CCP. Lockhart went to Colhouer’s house in the afternoon. There was no evidence of forced entry, so apparently Lockhart convinced Colhouer to let him in. The evidence shows that she was bound at one time and tortured by small pricking knife incisions just below the skin. She was then strangled and, while still alive, stabbed with several incisions. She also was anally assaulted. When police arrived, Colhouer was found naked from the waist down.
It is evident that this killing was not something that occurred on the spur of the moment. The fact that Colhouer was bound and tortured before she was killed indicates that the incident happened over a period of time. The nature and complexity of the injuries indicate that Lockhart intended to do exactly what he did at the time he entered Colhouer’s house. Thus, the trial court did not err in finding CCP.
Lockhart also argues that the trial judge erred in sentencing him based, in part, on information that he had no opportunity to rebut or explain. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The trial judge said in his sentencing order:
H. Defendant presented no evidence of any kind, and an explanation of his conduct can only be gleaned from interviews he has given to newspaper reporters outside this Court. None of this information so gleaned mitigates in his favor.
The trial judge did not discuss the substance of these articles, and the articles are not in the record.
In Gardner the United States Supreme Court considered whether a trial judge could impose a death sentence based on confidential information in a presentence investigation that was not disclosed to the defendant or his counsel. A plurality of the Court held that Gardner was denied due process when the death sentence was imposed based, in part, on information that Gardner had no opportunity to deny or rebut. Id. at 362, 97 S.Ct. at 1206-07. The Florida Supreme Court subsequently held that “[sjhould a sentencing judge intend to use any information not presented in open court as a factual basis for a sentence, he must advise the defendant of what it is and afford the defendant an opportunity to rebut it.” Porter v. State, 400 So.2d 5, 7 (Fla.1981).
The State argues that there was no Gardner violation because the trial judge rejected any information he read in the newspaper and did not consider it in aggravation or mitigation. We disagree with the State because the sentencing order indicates that the judge relied on information from the newspaper articles to support his finding of no mitigation. However, given the overwhelming-evidence supporting three aggravating factors, this error did not injuriously affect Lockhart’s substantial rights. Delap v. State, 440 So.2d 1242, 1257 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984). The sentencing order reflects that the trial judge was concerned that Lockhart chose not to present mitigating evidence. He apparently read the newspaper articles in an attempt to find something in mitigation. Although the articles are not in the record, they were based on interviews that Lockhart himself gave and he cannot claim that such information is confidential. See Spaziano v. State, 393 So.2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 5.Ct. 581, 70 L.Ed.2d 484 (1981) (reversing death sentence and remanding when trial judge relied on confidential information in a presentence investigation to impose sentence).
Finally, we decline Lockhart’s invitation to recede from Hamblen v. State, 527 So.2d 800 (Fla.1988), where this Court found no error in the trial court’s failure to appoint independent counsel to present mitigating evidence where the defendant demanded or requested a death sentence because the trial judge “carefully analyzed the possible statutory and nonstatutory mitigating evidence.” A defendant has a constitutional right to represent himself when competent to do so. Allowing counsel to take a position contrary to the defendant’s wishes through the vehicle of guardian ad litem would violate the dictates of Faretta. Where a judge thoughtfully analyzes facts and does not merely rubber-stamp the State’s position, see Hamblen, 527 So.2d at 804, we do not believe that independent counsel must be appointed.
We find no merit or procedural bars to the remaining issues Lockhart raises.
Accordingly, we affirm the conviction and death sentence imposed on Lockhart.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.
Lockhart did, in fact, request and receive Eble’s assistance at one point during the penalty phase.
Lockhart shot and killed a police officer in Texas. He killed a sixteen-year-old girl in Indiana in a crime that bore a striking resemblance to the instant case. He was sentenced to death for both the Texas and Indiana murders. .Whether (1) the trial court erred in accepting Lockhart's guilty plea; (2) Lockhart's waiver of counsel was freely, intelligently, and voluntarily made; (3) the trial court erred in restricting Lockhart's voir dire and in denying challenges for cause to two prospective jurors; (4) the trial court's statements to the venire improperly denigrated the jurors' sentencing responsibilities; (5) the trial court erred in allowing the State to introduce unreliable hearsay testimony that Lockhart had no opportunity to rebut; (6) the trial court erred in overruling objections to testimony about and photographs of collateral crimes; (7) the trial court improperly restricted Lockhart in presenting mitigating evidence; (8) the trial court failed to adequately renew the offer of counsel before sentencing Lockhart; (9) the trial court failed to weigh mitigating evidence available in the record; (10) the trial court erred in finding the cold, calculated, and premeditated aggravator; (11) the trial court improperly considered information not in the record; and (12) this Court should recede from Hamblen v. State, 527 So.2d 800 (Fla.1988), and require the appointment of special counsel to present mitigating evidence when a defendant requests a death sentence.
Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).
This statute provides in relevant part: Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.
Issue 3 (no merit to first subissue; second subissue not preserved); Issue 4 (not preserved); Issue 7 (no merit); Issue 8 (no merit); Issue 9 (no merit).
Michael Lee LOCKHART, Petitioner-Appellant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; Dan Morales, Attorney General, Respondents-Appellees.
No. 96-50642.
United States Court of Appeals, Fifth Circuit.
Jan. 9, 1997.
Gregory Burr Macaulay, Washington, D.C., for petitioner-appellant.
John Dury Jacks, Office of the Attorney General for the State of Texas, Austin, TX, for respondents-appellees.
Before DAVIS, JONES and DUHÉ, Circuit Judges.
[OPINION BY W. EUGENE DAVIS, Circuit Judge: type=majority]
W. EUGENE DAVIS, Circuit Judge:
Michael Lee Lockhart, a Texas death row inmate, seeks a certificate of probable cause (CPC) or a certificate of appealability (COA) to challenge the district court’s dismissal of his habeas petition. Because Lockhart has not made a substantial showing of the denial of a constitutional right, we deny the COA
I.
A.
Lockhart was indicted in Jefferson County, Texas, for the capital murder of Police Officer Paul Hulsey, Jr., in Beaumont, Texas. Upon an agreed motion, venue was transferred to Bexar County, Texas. Lockhart was tried before a jury upon a plea of not guilty, and in October 1988, the jury found him guilty of capital murder. Following a separate punishment hearing, the same jury answered affirmatively the three special issues submitted pursuant to former Article 37.071(b) of the Texas Code of Criminal Procedure. The trial court then sentenced Lockhart to death.
Lockhart directly appealed his conviction and-sentence to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence in December 1992. Lockhart v. State, No. 70734 (Tex.Crim.App. Dec. 2, 1992). Lockhart then petitioned the United States Supreme Court for writ of certiorari, which was denied in October 1993. Lockhart v. Texas, 510 U.S. 849, 114 S.Ct. 146, 126 L.Ed.2d 108 (1993).
In July 1993, the trial court scheduled Lockhart’s execution for November 23, 1993. Six days before his scheduled execution, Lockhart filed in the trial court a pro se request for appointment of counsel and motion for stay of execution. The trial court denied Lockhart’s requested stay. The Texas Court of Criminal Appeals affirmed the trial court’s denial of a stay on the ground that no colorable claim for habeas relief had been asserted and, therefore, the trial court’s jurisdiction to enter a stay had not been invoked. Ex parte Lockhart, 868 S.W.2d 346, 349 (Tex.Crim.App.1993).
In November 1993, Lockhart filed a pro se motion for appointment of counsel and a request for stay of execution in the U.S. District Court. The district court granted a stay of execution and appointed counsel. Counsel then filed a habeas petition. The Director filed his answer and motion for summary judgment and petitioner responded to the Director’s motion. In July 1996, the district court granted the Director’s motion for summary judgment and denied habeas relief.
In August 1996, the trial court scheduled Lockhart’s execution for September 10,1996. Lockhart then filed a notice of appeal, along with an application for certificate of probable cause to appeal and a motion to stay his execution pending appeal. We stayed Lockhart’s execution pending this appeal.
B.
Gn March 22, 1988, Beaumont Police Officer Paul Hulsey, Jr. saw appellant driving a red Corvette with a Florida license plate in Beaumont, Texas. Officer Hulsey saw that appellant’s passenger was a local drug dealer. When appellant saw the officer, he sped away. Officer Hulsey gave chase, but was unable to catch him. Later that evening, Officer Hulsey spotted appellant’s red Corvette in a motel parking lot and learned that he was in the motel. Officer Hulsey went to appellant’s motel room to arrest him, and Lockhart shot Officer Hulsey.
According to Lockhart’s statement to police, when Officer Hulsey entered Lockhart’s room, Lockhart knew Hulsey did not have a backup and he planned to get his gun and “get the drop on” the officer. Hulsey apparently saw Lockhart’s gun, because Hulsey ordered Lockhart to put his hands on the wall. Lockhart responded, “Why?” and Hulsey said “you have a gun.” Lockhart continued to argue with Hulsey. Hulsey then un-holstered his gun and Lockhart complied with his demand to place his hands on the wall. However, Lockhart placed his hands on the wall next to a mirror enabling him to see Hulsey’s actions. When Hulsey walked up behind Lockhart and lowered his gun to put it in his holster, Lockhart turned and hit Hulsey in the face. A fight ensued, and Hulsey’s gun discharged. Lockhart, who had managed to obtain his gun in the struggle, shot Hulsey and then, after a brief time, he shot Hulsey again. Hulsey “begged” Lockhart not to shoot anymore. Lockhart grabbed his keys and money and left the room.
On August 18, 1988, after his trial had been proceeding for about two weeks, Lockhart was taken to the courtroom after lunch and was uncuffed as usual. Lockhart bolted for the window in the third-floor courtroom and dove through it. Lockhart was captured shortly afterwards and taken to a local hospital to be treated for his injuries.
II.
A.
Lockhart raised fifteen claims in the district court but he only raises challenges in this court to the district court’s rejection of three of his claims. Two of the claims the petitioner presents to us were expressly rejected by the Texas Court of Criminal Appeals on direct appeal. That court found no merit to Lockhart’s argument that he was denied a fair trial when the trial court impermissibly had him shackled and handcuffed during the trial. The Texas Court of Criminal Appeals also denied relief to Lockhart on his claim that the trial court erred in granting Lockhart’s request to leave the courtroom during a portion of the voir dire examination.
Lockhart presents a third claim to this court that has never been presented to the state court, and the Director has waived the exhaustion requirement. This claim is predicated on the fact that Lockhart’s counsel—or his law firm—was actively representing the trial judge in an unrelated civil action. Lockhart argues that his trial counsel was ineffective in failing to either provide him with conflict-free representation, move for the re-cusal of the trial judge, advise Lockhart of the ongoing nature of counsel’s representation of the trial judge, or offer to withdraw from petitioner’s representation. We consider below our standard of review for Lockhart’s claims and apply that standard to those claims.
B.
This court in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), concluded that §§ 102 and 104 of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) applied to pending habeas cases. See also Moore v. Johnson, 101 F.3d 1069, 1072-73 (5th Cir.1996) (explaining retroactive effect of AED-PA). Section 104(3) (to be codified at 28 U.S.C. § 2254(d)) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Interpreting that section in Drinhard, we concluded that subsection (d)(2) of § 2254 applied to a state court’s factual determinations. We concluded that this subsection “permits federal court relief if the state court adjudication of the claim ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence.’” Drinkard, 97 F.3d at 767 (quoting § 2254(d)). We held that subsection (d)(1) governed our review of questions of law and mixed questions of law and fact. The first clause of this subsection permits a federal court to grant habeas relief for legal error only if it determines that a state court’s decision rested on a legal determination that was “contrary to ... clearly established federal law as determined by the Supreme Court.” Id. at 768. When reviewing a mixed question of law and fact, “a federal court may grant habeas relief only if it determines that the state court decision rested on ‘an unreasonable application of clearly established federal law as determined by the Supreme Court’ to the facts of the case.” Id.
C.
The Texas Court of Criminal Appeals rejected, on the merits, Lockhart’s arguments that the trial court erred in allowing Lockhart to be handcuffed and shackled in the presence of the jury and in allowing Lockhart to leave the courtroom during part of the voir dire.
With respect to Lockhart’s first claim, restraining a disruptive defendant does not offend any clearly established Supreme Court precedent. On the contrary, the Supreme Court has expressly held that the use of such visible restraints is appropriate under certain circumstances. See Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970). The decision to restrain an obstreperous defendant with visible restraints lies within the sound discretion of the trial judge. Id. The Texas Court of Criminal Appeals reasonably concluded that the trial court did not abuse its discretion in visibly restraining Lockhart. Lockhart had previously attempted a daring escape from the courthouse by bolting and diving through a closed third story window. Also, the trial court heard testimony that Lockhart had threatened to cause trouble for the deputies who escorted him to and from court. Additionally, Lockhart reacted to a ruling during a pretrial hearing by standing up and yelling obscenities and resisting the efforts of officers to control him and remove him from the courtroom. Thus, the Texas Court of Criminal Appeals’ resolution of this claim does not offend any clearly established Supreme Court precedent. Neither does its application of the law to the facts of this case represent an unreasonable application of that law. Lockhart has failed to make a substantial showing of the denial of a constitutional right with respect to this claim.
We now turn to Lockhart’s claim that the trial court impermissibly conducted voir dire outside his presence. The trial court permitted Lockhart to leave the courtroom only after an insistent request by Lockhart to do so. The state court found that Lockhart was physically capable of remaining in the courtroom but voluntarily waived his right to be present.
Lockhart points to no clearly established Supreme Court precedent that prohibits criminal defendants from voluntarily waiving their presence during the jury selection process. Assuming that Supreme Court precedent exists which requires the state to permit a defendant who wishes to do so to be present during jury selection, here the defendant voluntarily left the courtroom knowing that he had the right to remain. The state court’s rejection of Lockhart’s claim under these circumstances is not an unreasonable application of the law to the facts. We are also persuaded that Lockhart has faded to make a substantial showing of the denial of a constitutional right with respect to this claim.
D.
Lockhart asserts finally that his counsel provided ineffective assistance because he had a conflict of interest in representing Lockhart when his counsel’s law firm also represented the trial judge in an unrelated civil action. As stated above, this claim was not presented to the state court, and the Director has waived the exhaustion requirement. Consequently, the AEDPA’s provision altering our standard of review, when the petitioner’s claim has been adjudicated on the merits by a state court, has no application to this claim. The district court rejected this claim as a matter of law. We review the district court’s legal conclusions de novo.
Lockhart argues that his counsel’s conflict of interest resulted in him receiving ineffective assistance of counsel in a number of respects. He argues that counsel failed to provide him with conflict-free representation, to seek the disqualification of the trial judge, to advise him of the nature of defense counsel’s representation of the trial judge, or to withdraw from his representation. Lockhart argues that his trial counsel’s failure to provide conflict-free representation created a per se conflict of interest under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
As the district court observed, we have not read Cuyler this broadly. In Beets v. Scott, 65 F.3d 1258 (5th Cir.1995) (en banc), cert. denied, — U.S. -, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), our en banc court determined that Cuyler is primarily reserved for the circumstance where counsel represents multiple clients with conflicting interests. We concluded that a petitioner asserting ineffective assistance of counsel claims predicated on some other conflict of interest must ordinarily satisfy both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct., 2052, 2064, 80 L.Ed.2d 674 (1984). As in Beets, if we assume arguendo that petitioner’s trial counsel breached some duty to Lockhart by continuing to represent him while counsel’s firm was representing the trial judge in an unrelated civil matter, that breach does not establish a per se violation of petitioner’s Sixth Amendment right to effective assistance. To warrant federal habeas relief under Strickland, petitioner must demonstrate error by counsel that fell below an objective standard of reasonableness and that this error prejudiced his case. To establish the prejudice prong of Strickland, petitioner must show a reasonable probability that counsel’s error changed the result of the trial. Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. We agree with the district court that Lockhart demonstrated no basis for a finding of prejudice. Petitioner does not specify any decision by defense counsel which was affected by his firm’s representation of the trial judge on an unrelated matter. He also fails to cite any legal authorities on which counsel could have based a motion to disqualify the trial judge. In sum, petitioner fails to allege any steps his counsel took or failed to take as a result of this relationship that affected his defense. Because petitioner failed to allege facts from which a factfinder could infer that he was prejudiced from the relationship between the trial judge and his counsel’s law firm, the district court correctly rejected Lockhart’s ineffective assistance of counsel claims.
III.
For the reasons stated above, we conclude that Lockhart has not made a substantial showing of the denial of a constitutional right. We therefore deny the certificate of appealability and vacate the stay of execution we entered earlier.
A portion of the opinion was published. Lockhart v. State, 847 S.W.2d 568 (Tex.Crim.App.1992).
As Lockhart was telling this, he reiterated that this was how Hulsey "really fucked up.”