Harvey Earvin v. James A. Lynaugh, Director of the Texas Department of Corrections, Respondent

Citations: 860 F.2d 623; 1988 U.S. App. LEXIS 15999; 1988 WL 118693Docket: 87-6041

Court: Court of Appeals for the Fifth Circuit; November 10, 1988; Federal Appellate Court

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Harvey Earvin was convicted of capital murder on August 25, 1977, and sentenced to death. After exhausting state appeals, he sought a writ of habeas corpus in the United States District Court for the Eastern District of Texas, which was denied on September 3, 1987. Earvin appealed, claiming ineffective assistance of counsel during the penalty phase of his trial. The Court of Appeals affirmed the district court's denial of the writ, determining that Earvin failed to demonstrate that his counsel's performance was ineffective or that he suffered prejudice as a result.

The facts revealed that Ertis Brock was shot and killed on December 7, 1976, and Earvin confessed to the murder during a robbery attempt. His conviction was upheld by the Texas Court of Criminal Appeals, and his subsequent applications for habeas corpus were denied. Following a stay of execution granted by the federal district court, an evidentiary hearing revealed Earvin’s narrowed claim of ineffective assistance focused on three specific alleged counsel errors during the penalty phase: (1) failure to connect mitigating evidence to the jury's special issues, (2) not challenging the prosecutor’s assertions regarding jury responses to those issues, and (3) failing to object to problematic definitions and arguments related to 'deliberate' in the penalty phase instructions. The appellate court ruled that Earvin had not preserved his challenge to the constitutionality of the Texas death penalty procedure and affirmed the lower court's findings.

In Strickland v. Washington, the Supreme Court established a two-pronged standard for evaluating claims of ineffective assistance of counsel, requiring defendants to demonstrate both deficient performance by counsel and resulting prejudice that undermines the reliability of the trial outcome. To prove deficiency, the defendant must show that counsel's performance fell below an objective standard of reasonableness, with a strong presumption favoring counsel's actions as sound strategy. In the case of Earvin, his counsel's choice to admit to the murder while seeking jury sympathy through mitigating evidence, such as Earvin's youth and lack of criminal history, was deemed a reasonable strategy. Earvin's argument that the jury did not adequately consider mitigating evidence due to lack of guidance from counsel was countered by the affirmation that Texas's statutes provided sufficient guidance for the jury. Additionally, while Earvin claimed that his counsel ignored special issues one and three, the attorney's decision to concentrate on special issue two was justified as the most promising path to avoid a death sentence.

Overwhelming evidence indicated that Earvin's actions were deliberate, as he had planned the robbery for at least two days, arrived armed and disguised, and fired the fatal shot. The jury could reasonably conclude that he expected Brock's death as a consequence of his actions. As for provocation, conflicting evidence existed; Earvin claimed he shot only after perceiving a threat from Brock, who had no gun found on him, allowing the jury to disbelieve Earvin's assertion. Legally, a robber is not entitled to self-defense, further undermining Earvin's position.

Regarding his future dangerousness, Earvin’s counsel aimed to demonstrate that he no longer posed a threat to society, a strategy supported by Supreme Court precedent. The jury considered mitigating factors such as Earvin's lack of a criminal record and age. However, the jury ultimately found that he did pose a continuing threat.

Earvin also contended that his counsel's failure to object to the punishment charge was improper, arguing that the definitions of "deliberate" and "intent" rendered them synonymous. However, the trial court provided distinct definitions that aligned with those recognized by the Court of Criminal Appeals, negating the claim of confusion in the jury's understanding of "deliberateness."

Counsel's failure to object to the prosecution's arguments requires Earvin to demonstrate either significant misconduct or that the evidence was insufficient to support a conviction absent those remarks. The court determined that there was enough evidence for the jury to conclude Earvin acted deliberately, indicating that the prosecution's comments were not prejudicial. Regarding the second prong of the Strickland test, Earvin did not prove that any alleged errors by his counsel resulted in prejudice or affected the trial's outcome, thus failing to meet the necessary standards for relief. Earvin's claim that the Texas statute is unconstitutional, based on the inability of juries to consider all mitigating evidence due to special issues, was deemed improperly raised for the first time on appeal. Even if considered, prevailing Supreme Court opinions have upheld the use of these special issues, affirming that they did not prevent the jury from considering mitigating factors relevant to Earvin's case. The district court's decision to deny Earvin habeas corpus relief is affirmed, as he did not establish ineffective assistance of counsel or resulting prejudice.

The prosecution presented multiple witnesses to demonstrate Earvin's lack of remorse following the crime, which the Supreme Court deemed relevant under special issue two in Jurek. Evidence indicated that Earvin exhibited troubling behavior during pre-trial custody, including setting fire to another inmate's leg as a prank and showing indifference to receiving a death sentence. The prosecution effectively cross-examined the defense witnesses, including Earvin's mother, who could not continue due to emotional distress, and a preacher who lacked sufficient knowledge of Earvin. Additionally, Earvin's supervisor expressed a positive opinion of him but could not assert that Earvin was no longer a danger to society. The trial court instructed the jury on the meaning of "deliberate" as involving careful consideration and intent, emphasizing that a person acts with intent when their conscious objective is to engage in specific conduct or cause a particular result. In closing arguments, the prosecutor suggested that the jury's deliberation indicated a finding of capital murder, implicitly affirming the intentional nature of Earvin's conduct.