Opposition Brief — Penry v. Lynaugh

| Supreme Court US.

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NO. 87-6177

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1987

JOHNNY PAUL PENRY,

Petitioner,

Vv.

JAMES A. LYNAUGH, DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JIM MATTOX MICHAEL P. HODGE

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

MARY F. KELLER CHARLES A. PALMER*

First Assistant Assistant Attorney General

Attorney General

LOU McCREARY P.O. Box 12548, Capitol Station

Executive Assistant Austin, Texas 78711

Attorney General (512) 463-2080

* Counsel of Record

11.

111.

Whether the Texas capital-sentencing statute

is unconstitutional for failing to require

specific instruction regarding balancing of

aggravating and mitigating circumstances and

for failing to define some of the terms used

in the special issues on punishment.

Whether the execution of a death sentenced

inmate who has limited mental capacity but

who was adjudged competent at trial violates

the eighth amendment proscription against

cruel and unusual punishment.

Whether Penry’s confessions were voluntarily

given and whether he knowingly relinquished

his right against self-incrimination.

QUESTIONS PRESENTED... +++ +e ee +e eees

TABLE OF AUTHORITIES .. +++ + © © © © © © @ «@

OPINION BELOW... + + + 2+ e+ © © © © © © © © ©

JURISDICTION .. «© © eee ese ee we eo oe @ «@

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE ...+ +++ «© © © «© «

A. Course of Proceedings and

B. Statement of Facts . . * .

/

REASONS FOR DENYING TRE Rik

I.

Eke

111.

IV.

THE QUESTIONS PRESENTED FOR REVIEW ARE

UNWORTHY OF THIS COURT’S ATTENTION. .

THE TEXAS CAPITAL-SENTENCING STATUTE

AS APPLIED MEETS THE CONSTITUTIONAL

REQUIREMENT OF INDIVIDUALIZED SEN-

TENCING WITHOUT THE NECESSITY OF A

SPECIAL INSTRUCTION ON MITIGATING

EVI og

EXECUTION OF A MENTALLY RETARDED PERSON

DOES NOT CONSTITUTE AN EIGHTH AMENDMENT

VIOLATION. ... . . ~~ a

PENRY’S CLAIM THAT HIS CONFESSIONS WERE

INVOLUNTARY BECAUSE HE DID NOT KNOWINGLY

RELINQUISH HIS RIGHT TO REMAIN SILENT IS

MERITLESS IN LIGHT OF THE FACTUAL FINDINGS

OF THE STATE COURTS. ...+ ++ «© « «

CO, soo

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"

TABLE OF AUTHORITIES

Cases

Barclay v. Florida, 463 U.S. 939 (1983) .....

Colorado v. Spring, U.S. >

107 8. e. 851 (1987) * * * * * * * . * * *

Cordova v. State, 733 8. M. 2d 175

(Tex.Crim.App. 1967) c vůiieriin eee

Cupp v. Naughten, 414 U.S. 141 (1973) ......

Eddings v. Oklahoma, 455 U.S. 104 (1982). ....

Enmund v. Florida, 458 U.S. 782 (19822

Ford v. Wainwright, U.S. ,

106 &.Ct. 2595 (1986). . ~. «© «= © «© = © © @

Gardner v. Florida, 430 U.S. 349 (1977) ....-.

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949)

Gregg v. Georgia, 428 U.S. 153 (1976)))))

Johnson v. Cabana, 818 F.2d 333 (5th Cir.), cert.

denied. U. s. 107 S.Ct. 2207 (1987).

Johnson v. State, 691 8. . 2d 619

(Tex.Crim.App. 1984) * „ „ * * „ * * * „ „ *

Jurek v. State, 522 8. . 2d 934

(Tex.Crim.App. 1975) ]]] „„ „„ eee

Jurek v. Texas, 428 U.S. 262 (19760 +s -s

Lockett v. Ohio, 438 U.S. 586 (197)

Maggio v. Fulford, 462 U.S. 111 (1983)

Miller v. Fenton, U.S. P

106 .. 445 (1986) * „ * „ * „ * * * „ * „

Milton v. Procunier, 744 F. 2d 1091 (5th Cir. 1984),

- denied, U.S. , 105 S.Ct. 2040

(1985) ee @ 8. 6 8 8 6.89 2 2 , eee

Miranda v. Arizona, 384 U.S. 436 (1966) .....

Moran v. Burbine, U. 8. P

106 . . 1135 71986) * „ * * * * * „ „ * * *

North Carolina v. Butler, 441 U.S. 370 (1979) ..

Roberts (Stanislaus) v. Louisiana, 428 U.S. 325

(1976) * * * * * * * * * * „ „ * * * „ * * „

Stewart v. State, 686 8. .. 2d 118

(Tex. Crin. App. 1984) . ᷑ . «6 «© «© «© #© © we we

Tacon v. Arizona, 410 U.S. 351 (1973)

Woodson v. North Carolina, 428 U.S. 280 (1976). .

Zant v. Stevens, 462 U.S. 862 (1983). ......

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11,12

12

13,14,15

12

15

9

15

11

11

10,11

9,12

12

TABLE OF AUTHORII-ES. CONTINUED

Constitutions. wtatutes and Rules

U. s. const, amend. V....

U. s. Const., amend. VIII

28 U.S.C. § 1254(1)

28 U.S.C. § 2254(4)

Sup. Ct. R. 17.

Tex. Code Crim. Proc. Ann. art. 11.07 §2

(Vernon Supp. 1984). see es

Tex. Code Crim. Proc. Ann. art. 37.071

(Vernon Supp. 1987). =

Tex. Code Crim. Proc. Ann. art. 46.02 §1(a)

(Vernon 19861). . - «© «+ —2

Tex. Penal Code Ann. art. 8.01 (Vernon 1974).

Tex. Penal Code Ann. § 19.03 (Vernon Supp. 1988).

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NO. 87-6177

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1987

JOHNNY PAUL PENRY,

Petitioner,

Vv.

JAMES A. LYNAUGH, DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES James A. Lynaugh, Director, Texas Department of

Corrections, Respondent! herein, by and through his attorney, the

Attorney General of Texas, and files this Brief in Opposition.

QPINION BELOW

The opinion of the Court of Appeals for the Fifth Circuit

affirming the district court’s denial of habeas relief is

attached to the petition as Appendix A. Penry vy. Lynaugh, #832

r. 20 915 (Sth Cir. 1987). ‘The unpublished opinion of the dis-

trict court is attached to the petition as Appendix B. Penry v.

Lynaugh No. L-86-89-CA (E. D. Tex. 1987).

lpor clarity, Respondent is referred to as “the state, and

Petitioner as "Penry."

JURISDICTION

Penry seeks to invoke the jurisdiction of this Court pursu-

ant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Penry relies on the fifth and eighth amendments to the

Constitution. Also at issue here is the Texas statute which sets

out the special issues at the punishment phase of a capital

trial. Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon Supp.

1987).

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below

The state has lawful custody of Penry pursuant to a judgment

and sentence of the 258th Judicial District Court of Trinity

County, Texas, in Cause No. 6572, styled The State of Texas v.

Johnny Paul Penry. On November 7, 1979, Penry was indicted for

the offense of capital murder of Pamela Carpenter while in the

course of committing and attempting to commit the offense of

aggravated rape, to which he entered a plea of not guilty (SF

XIII 1344).?

Penry’s pretrial motions were heard on January 11, 1980 (SF

III 28-83), including a motion for change of venue which was

granted on that date (SF III 84-101). His pretrial motions were

continued on February 29, 1980, and a hearing was held on his

motions to suppress his confessions (SF IV). Detailed findings

ot fact and conclusions of law denying the motion to suppress

were filed on March 25, 1980 (Tr. 94). An extensive hearing on

Penry’s challenge to his competency to stand trial was held

before a jury on March 10-13, 1980 (SF V-VII), and the jury found

him competent (SF VII 944-45).

Z rr. refers to the transcript of Penry’s state court

proceedings located in Volume I. sr“ refers to the statement of

facts, with reference made to the volume number typewritten on

the bottom of the cover of each volume and page number as

reflected in the lower right hand corner of each page. The

appendices attached to Penry’s petition are referred to as "A"

and “ with the appropriate page numbers following.

Trial began on March 24, 1980, and on April 1, 1980, the

jury found Penry guilty of the capital offense (Tr. 111; SF

2533). On April 1, 1980, after a punishment hearing, the jury

answered affirmatively the special issues submitted pursuant to

Article 37.071, Tex. Code Crim. Proc. Ann. (Vernon Supp. 1987)

(Tr. 118-119; SF XVII 2698-2703).

Penry appealed this conviction and sentence to the Court of

Criminal Appeals of Texas, which affirmed on January 9, 1985.

Penry v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985) (en banc).

Rehearing was denied on May 2, 1985. Certiorari was denied on

January 13, 1986. Penry v. Texas, Us. 106 S.Ct. 834

(1986).

Penry was formally sentenced to be executed before sunrise

on May 7, 1986. he filed an application pursuant to Tex. Code

Crim. Proc. Ann. art. 11.07 §2 (Vernon Supp. 1984) on April 10,

1986. The state convicting court recommended denial on April 25,

1986. The Texas Court of Criminal Appeals denied the application

and motion for stay of execution on May 5, 1986. Ex parte Penry,

Application No. 15918-01.

On May 5, 1986, Penry filed an application for writ of

habeas corpus and a motion for stay of execution in the United

States District Court for the Eastern District of Texas Lufkin

Division. Penry v. McCotter, No. L-86-89-CA. United States

District Judge William M. Steger entered a stay of execution on

May 6, 1986. An order denying all habeas relief was entered on

April 28, 1987, and the stay of execution was vacated. The

district court granted Penry’s request for certificate of proba-

ble cause to appeal, and on November 25, 1987, the Court of

Appeals for the Fifth Circuit affirmed. Penry vy. Lynaugh, 822

F. 2d 915 (Sth Cir. 1987). Rehearing and rehearing en banc were

denied on December 23, 1987.

B. Statement of Facts

Johnny Paul Penry was hired by Harold Stubblefield to

deliver a freezer to the home of the deceased, Pamela Carpenter.

Penry assisted with the delivery on October 9, 1979 (SF XIII

-3-

1351-65, 1377).

On October 25, 1979, between 9:00-9:30 a.m., the deceased

spoke with her mother, Mrs. Rossie Moseley (SF XIII 1384). At

about 10:00 a.m. she phoned a friend, Cindy Peters, and stated

"This is Pam. I’ve been stabbed and raped. Mother’s at the

church. Help me and hurry." (SF XIII 1391-92, 1397-99, 1407).

Peters went immediately to the deceased’s residence and observed

the deceased on her bed, covered with blood and moaning for help

(SF XIII 1393, 1399-403). An ambulance was immediately called

(SF XIII 1428-30).

Officer E. G. Page of the Livingston Police Department

arrived on the scene at 10:26 a.m. (SF IV 255; XIII 1441), and

spoke to the deceased (SF IV 253-54; XIII 1443), who told him her

attacker was a white male, about twenty years old, short, thin

with short, dark curly hair, and was wearing a plaid shirt,

“possible flowers" and blue jeans (SF XIII 1446, 1449-50). The

emergency technicians arrived soon thereafter to discover the

deceased in a state of shock and bleeding (SF XIII 1481-85, XIV

1822).

The deceased received extensive emergency treatment in the

hospital (SF XIII 1502-18). During the first hour, she was

conscious and talking (SF XIII 1513-15, 1558). She stated that

she had been stabbed with scissors and raped by a white male,

short, thin with black hair. She stated that she had seen him

before but did not know his name? (SF XIII 1524-26, 1558 ). The

deceased’s condition deteriorated and she died around noon during

the emergency treatment. The cause of death was massive hemor-

rhage and the chest injury (SF XV 2081), which was consistent

with having been stabbed with a pair of scissors (SF XIII

1519-20, 1563; XV 2077-79, 2094). The deceased also had a large

bruise on her left side of her eye consistent with having been

3Her description given to Dr. McLendon was not admitted

before the jury (SF XIII 1533).

struck by a fist, multiple bruises on her legs, a bruise on her

throat consistent with hand strangulation, a bruise on the left

rib cage about the size of a man’s shoe heel, anda defensive

wound on her hand (SF XIII 1506, 1557; XV 2063-81). Semen was

observed on the genital area during the emergency treatment (SF

XIII 1563-64); however, the deceased had extensive urinary tract

hemorrhaging and no semen was found during the autopsy (SF xu

2082). N

Deputy Sheriffs Billy Ray Nelson and Bob Grissom received a

description of the assailant over the patrol car radio at approx-

imately 11:00 a.m. (SF IV 136-37, 159-62, 173; XIV 1568-69,

1639-40). Nelson was familiar with Penry, who fit the dispatched

description and had recently been released from the Texas Depart-

ment of Corrections for rape (SF IV 138; XIV 1569). They pro-

ceeded to Penry’s father’s home, spoke with Penry and inquired of

his whereabouts. Penry responded that he had been home about an

hour (SF XIV 1570, 1639, 1641). The officers informed him that a

girl had been possibly cut or stabbed and raped (SF IV 139-40;

XIV 1572). Penry denied any knowledge (SF XIV 1570-72), but he

agreed to accompany the officers to the police station‘ (SF Iv

140; XIV 1573-75, 1594-95, 1643, 1656-57). No questions were

asked on the way to the station (SF XIV 1586).

Within moments after their arrival, Ted Everitt, an investi-

gator for the district attorney’s office, advised Penry of his

Miranda® rights off the standard police-issued card (SF IV 142,

145-47; XIV 1579, 1589, 1669-75). Penry did not request a lawyer

(SF XIV 1589). At this time Officer Grissom noticed blood on the

upper back shoulder of Penry’s shirt and asked him about it.

Penry responded that he had fallen on a stick while riding his

bicycle earlier that morning. Because there was no tear in the

‘4puring the time at the Penry house, the officers never saw

Penry’s back (SF XIV 1572-76).

SMirenda v. Arizona, 384 U.S. 436 (1966).

shirt he was wearing, the officers asked him to show them the

shirt he was wearing when the accident occurred. Penry responded

that he’d be glad to and informed them the shirt was at his house

(SF IV 142-44; XIV 1579-81, 1645-46, 1676-77). Miranda rights

were again read in connection with Penry’s signing a consent to

search form at 12:10 p.m. (SF IV 144-47; XIV 1581-83, 1601-03,

1646, 1677-86; XVIII St.Ex. 7; XX St.Ex. 18).

The officers and Penry returned to the house and retrieved

the shirt (SF IV 148-49; XIV 1604, 1646, 1686-88). Penry was

then asked if he would accompany them to the crime scene and he

agreed (SF IV 150; XIV 1604-05, 1648, 1689-90). Penry said,

„111 go with you, just don’t try to pin anything on me 1 didn’t

do" (SF XIV 1648, 1690). The officer responded he wouldn’t do

that. At the deceased’s house, Penry remained in the car unre-

strained. After about thirty to forty minutes, Penry initiated a

conversation by stating, “I want to tell you about it“ (SF IV

151-52; XIV 1608-10, 1618). Officer Nelson testified, "I told

him to just to be quiet. I didn’t want to hear it. I told him

to just shut up." Penry responded, "No, I want to get it off my

conscience. I done it, and I want to get it off my conscience"

(SF IV 151-52, 154; XIV 1618). Penry was piaced under arrest (SF

XIV 1625) and Officer Grissom then re-read Penry his Miranda

rights (SF IV 153-54; XIV 1619-20, 1651-53). Penry then reiter-

ated his desire to tell the truth (SF IV 154). Penry vas taken

into the house, where he described the crime, pointed out the

scissors used to stab the deceased, and identified his pocket~

knife® (SF IV 154-55, 181-82; XIV 1620, 1723-24). He wes subse-

quently searched, returned to the station (SF IV 181-82; XIV

1622, 1717-18), and turned over to Chief William F. Smith (SF XIV

1719).

6The officer’s description of Penry’s actions at the crime

scene was not admitted before the jury (SF XIV 1742).

A formal complaint was filed and an arrest warrant obtained

(SF IV 252). Penry was taken before Judge Galloway for adminis-

tration of magistrate’s warnings on a charge of capital murder

and they were twice read (SF IV 183, 203-12; XIV 1787-88,

1802-09, 1813-18). At the initial reading, Penry’s father and

step-mother appeared in court and “hollered not to sign it or

make any statements" (SF IV 205). Penry’s father read the

magistrate’s warnings to his son (SF IV 184; VI 537; XIV 1788-90,

1806, 1844) and when told he was charged with capital murder,

Penry asked, bid she die?" (SF IV 205; XIV 1815). Mr. Penry

quit reading to his son and asked his son if he had committed the

crime. Penry responded that he had. Mr. Penry, Sr., “stormed

out of the office, out of the courtroom and told him he was

through with him. He could go to jail as far as he vas con-

cerned" (SF IV 184-85; 205-07; XIV 1845). Penry subsequently

signed the magistrate’s warning in Judge Galloway’s presence (SF

IV 207).

Miranda warnings were again read and individually explained

to Penry by Chief Smith at about 3:25 p.m. (SF IV 185-89, 200-01;

XIV 1709, 1828-32, 1846-49; XV 1889-90). Penry then gave a

confession which vas reduced to writing (SF IV 185-89; XIV

1833-34, 1850). Smith knew that Penry could not read or write.

The statement was read to him twice in its entirety including the

warnings, with witnessing and signing by Penry occurring after

the second reading at 6:05 p.m. on October 25, 1979 (SF IV

189-93, 214-15; XIV 1835-36, 1850-53, XV 1872-93, 1979). 7

On October 26, 1979, Penry agreed to give hair samples, vas

again administered Miranda warnings, and signed a consent to

search form (SF IV 195-96). On that date, Texas Ranger Maurice

Cook again read and explained to Penry his Miranda warnings (SF

IV 223-25; XV 1865, 1874-77, 1988-91). Penry gave a second

7This statement as it was presented to the jury appears in

Vol. XV 1895-1902.

verbal confession, which was reduced to writing and read to him

in its entirety, including the warnings. An addition was made by

Penry and the statement was witnessed and signed (SF IV 227-32,

240-44; XV 1866, 1877-78, 1992-99, 2043-47, 2050-53) .8

SUMMARY OF ARGUMENT

There are no special or important reasons to consider the

questions presented.

The Texas capital-sentencing statute is constitutional.

Because the special issues submitted to the jury on punishment

are narrowly drawn so as to focus the jury’s attention, and the

defendant is allowed to present all relevant mitigating evidence

for the jury’s consideration in answering the special issues,

there is no need for specific instructions on mitigating evi-

dence.

Execution of a mentally retarded person does not violate the

Constitution. Penry’s low I.Q. notwithstanding, there is no

question that he knows that he is to be executed and the reason

why. No decision of this Court precludes the execution of a

person of Penry’s mental status.

There is no merit to Penry’s challenge to the voluntariness

ot his confessions. Given the factual findings of the state

courts, which were accepted by the federal habeas course, this

claim must fail.

REASONS FOR DENYING THE WRIT

I.

THE QUESTIONS PRESENTED FOR REVIEW ARE

UNWORTHY OF THIS COURT’S ATTENTION.

Rule 17 of the Rules of the Supreme court provides that

review on writ of certiorari is not a matter of right, but of

judicial discretion, and will be granted only when there are

8This second statement appears in evidence at the guilt

— ae reference to extraneous offenses removed (SF xv 1999,

-31).

special and important reasons therefor. Penry has advanced no

special or important reason in this case, and none exists.

11.

THE TEXAS CAPITAL-SENTENCING STATUTE AS

APPLIED MEETS THE CONSTITUTIONAL REQUIREMENT

OF INDIVIDUALIZED SENTENCING WITHOUT THE

NECESSITY OF A SPECIAL INSTRUCTION ON MITI-

GATING EVIDENCE.

Penry contends that the special issues a jury must answer in

deciding punishment in a capital case are so narrowly drawn that,

absent a specific instruction on how to consider mitigating

evidence, the jury can be prevented from considering relevant

mitigating evidence and from engaging in the type of individual-

ized sentencing mandated by the Constitution. Because the trial

court in his case gave no such instruction, he argues that the

jury could have excluded relevant mitigating evidence from its

punishment deliberations so that his resulting death sentence was

unconstitutionally imposed.

A capital-sentencing statute must meet two requirements to

pass constitutional scrutiny. First, the statute must be struc-

tured so that the death penalty is not imposed in an arbitrary

and unpredictable fashion. Gregg v. Georgia, 428 U.S. 153, 189

(1976). It must provide “objective standards to guide, regular-

ize, and make rationally reviewable the process for imposing a

sentence of death." Woodson v. North Carolina, 428 U.S. 280, 303

(1976). Second, a capital-sentencing statute must provide for

individualized sentencing by allowing the defendant to present

evidence in mitigation of a sentence of death. Mandatory capital

punishment statutes have been struck down because of their "lack

of focus on the circumstances of the particular offense and the

character and propensities of the of fender, Roberts

(Stanislaus) v. Louisiana, 428 U.S. 325, 333 (1976); and sen-

tences under guided-discretion statutes have been vacated when

the sentencer was prevented from considering aspects of the

defendant’s character or record or the circumstances of the

offense. See Lockett v. Ohio, 438 U.S. 586 (1978).

The Texas statute was found to satisfy both requirements in

Jurek v. Texas, 428 U.S. 262 (1976). First, the offenses for

which the state may seek to impose the death penalty are limited

to intentional murders committed under strictly defined circum-

stances. Tex. Penal Code Ann. § 19.03 (Vernon Supp. 1988). Once

a defendant is found guilty of capital murder, a separate sen-

tencing hearing is conducted to determine whether the punishment

will be life imprisonment or death. Tex. Code Crim. Proc. Ann.

art. 37.071(b) (Vernon Supp. 1987). Finally, all convictions

that result in a sentence of death are automatically reviewed by

the Texas Court of Criminal Appeals. Id., art. 37.071(f). The

Texas statute was thus structured so as to prevent the sentencing

authority from imposing a sentence of death in an arbitrary and

unpredictable fashion. Jurek, 428 U.S. at 276. Penry does not

challenge the validity of this aspect of the statute.

This Court also found that the Texas procedure provides for

individualized sentencing. In Texas, after finding a defendant

guilty of capital murder, the jury is not directly asked whether

the punishment should be life imprisonment or death. Rather, the

following set of special issues is submitted:

(1) whether the conduct of the defendant that

caused the death of the deceased was commit-

ted deliberately and with the reasonable

expectation that the death of the deceased or

another would result;

(2) whether there is a probability that the

defendant would commit criminal acts of

violence that would constitute a continuing

threat to society; and

(3) if raised by the evidence, whether the

conduct of the defendant in killing the

deceased was unreasonable in response to the

provocation, if any, by the deceased.

Tex. Code Crim. Proc. Ann. art. 37.071(b). The jury must be

persuaded beyond a reasonable dot t before a question may be

answered affirmatively. If all of the issues submitted are

answered yes, the court sentences the defendant to death;

otherwise, the sentence is life imprisonment.

In Jurek the Court noted that the special issues do not

explicitly speak of mitigating circumstances. However, the Texas

Court of Criminal Appeals had interpreted the second question so

as to allow the defendant to present to the jury whatever miti-

gating evidence he might wish:

‘In determining the likelihood that the

defendant would be a continuing threat to

society, the jury could consider whether the

defendant had a significant criminal record.

It could consider the range and severity of

his prior criminal conduct. It could further

look at the age of the defendant and whether

or not at the time of the commission of the

offense he was acting under duress or under

the domination of another. It could also

consider whether the defendant was under an

extreme form of mental or emotional pressure,

something less, perhaps, than insanity, but

more than the emotions of the average man,

however inflamed, could withstand.’

Jurek, 428 U.S. at 272, quoting Jurek v. State, 522 S.W.2d 934,

939-40 (Tex.Crim.App. 1975). The Texas statute puts before the

jury “all possible relevant information about the individual

defendant whose fate it must decide." Jurek, 428 U.S. at 276.

In thus providing for individualized sentencing, Texas’ procedure

meets the requirements imposed by the Constitution.

Penry argues that the structure of the special issues might

convince jurors that they are unable to consider certain evi-

dence. He relies on certain statements in the opinion of the

court below similar to those expressed by three dissenting

members of the Texas Court of Criminal Appeals. In Stewart v.

State, 686 S.W.2d 118, 125-26 (Tex.Crim.App. 1984), Judge

Clinton, joined by Judges Teague and Miller, noted that evidence

of mental illness and childhood deprivation could be introduced

by the defendant as mitigating circumstances, but could also be

viewed as weighing in favor of a death sentence. The dissent

opined that the jury ought to be instructed by the trial court

that the evidence had to be ccnsidered as mitigating. See also

Johnson v. State, 691 S.W.2d 619, 627 (Tex.Crim.App. 1984)

(Clinton, J., dissenting).

The minority members of the Court of Criminal Appeals

themselves recognized, however, what this Court stated in Eddings

v. Oklahoma, 455 U.S. 104 (1982): that evidence of difficult

family history and of emotional disturbance is frequently

introduced by defendants in mitigation, and juries can easily

grasp its significance. Eddings, 455 U.S. at 115. Although the

sentencing authority cannot refuse to or be precluded from

considering certain evidence as mitigating, nothing in the

Constitution requires that it be considered only as mitigating.

This much is evident from the Court’s recognition in Enmund v.

Florida, 458 U.S. 782 (1982), that, while a vicarious felony

murderer may be executed in some states absent an intent to kil)

if sufficient aggravating factors are present, some of those same

states make it a mitigating factor that the defendant was an

accomplice to the murder and his own participation was relatively

minor. Enmund, 458 U.S. at 791-92. It also follows from the

requirement that the defendant be allowed to explain any evidence

the state introduces in favor of the death sentence. Gardner yv.

Florida, 430 U.S. 349, 362 (1977). Like any circumstantial

evidence, that introduced at the punishment phase of a capital

murder trial can be susceptible of more than one interpretation.

It is for the jury to determine the weight such evidence re-

ceives. See Eddings, 455 U.S. at 114-15 ("(t)jhe sentencer, and

the Court of Criminal Appeals on review, may determine the weight

to be given relevant mitigating evidence"); Barclay v. Florida,

463 U.S. 939, 961 n. 2 (1983) (Stevens, J., concurring) (neither

Lockett nor Eddings held that any particular weight must be given

by the sentencer to mitigating evidence); Zant v. Stevens, 462

U.S. 862, 891 (1983) (Constitution does not require states to

adopt specific standards for instructing jury how to consider

aggravating and mitigating circumstances).

The Constitution requires the sentencer to listen to the

defendant’s mitigating evidence but does not usurp the sen-

tencer’s role in assessing the value of that evidence. S in-

ilarly, the Texas statute allows the defendant to submit to the

jury whatever mitigating evidence he chooses to and requires the

jury to consider that evidence in deciding punishment, but leaves

to the jury the determination of what weight to give to it. See

Cordova v. State, 733 S.W.2d 175, 189 (Tex.Crim.App. 1987) (in

-12-

Texas, mitigating evidence is given effect by the influence it

has on the jury during deliberations).

Penry also argues that the state convicting court erred in

failing to define certain terms used in the special issues on

punishment. The Fifth Circuit has consistently recognized that

these words “are sufficiently common that their definition is not

required in a jury charge under the capital murder statute."

Milton v. Procunier, 744 F.2d 1091, 1095 (Sth Cir. 1984), cert.

denied. U. ss. 105 S.Ct. 2040 (1985). The court’s jury

instructions on the punishment issues were not objectionable

under Texas law or as a matter of federal constitutional law.

Certainly, the instructions were not so defective as to render

the punishment hearing as a whole fundamentally unfair. Cupp vy.

Naughten, 414 U.S. 141 (1973).

111.

EXECUTION OF A MENTALLY RETARDED PERSON DOES

NOT CONSTITUTE AN EIGHTH AMENDMENT VIOLATION.

Penry contends that his execution would violate the eighth

amendment proscription against cruel and unusual punishment

because he is mentally retarded. In support of his claim, he

argues that the Court’s decision in Ford v. Wainwright, U.S.

106 S.Ct. 2595 (1986), precludes the execution of "idiots

and lunatics." He asserts that execution of such persons offends

contemporary notions of decency, citing to the American Associa-

tion of Mental Deficiencies standards, a Florida survey and

Texas’ prohibition against the execution of persons who are under

the chronological age of 17 when they commit the offense.

The evidence that Penry has limited mental capacity is not

in dispute. As the district court found, psychological testing

conducted on Penry from the age of eight through his 1980 trial

places his IQ somewhere between 50-63, a range of moderage to

mild mental retardation, and supports the district court’s

characterization of Penry as having 'the mind of a six or seven-

year-old child and the social maturity of an eight to ten-year-

old child (B. 4). Notwithstanding the evidence of Penry’s

limited mental capacity, the district court denied habeas relief,

reasoning primarily that “the (Constitution) does not proscribe

{a death) sentence for the mentally deficient” and "the prohibi-

tion against execution of those unable to understand the reason

for their punishment apparently does not apply to a person like

Penry who has been adjudicated a competent man" (B. 5). The

court below affirmed on the basis of well settled law of that

circuit (A. 3).

The district court correctly found that prior totrial a

comprehensive, separate competency hearing was held in state

court (SF V-VII), and it presumed correct the jury’s finding that

Penry had sufficient present ability to consult with his lawyers

with a rational degree of understanding and had a rational as

well as factual understanding of the proceedings against him, or

in other words, that he met the Texas standard for competence to

stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 §l1(a) (Vernon

1981) (ROA 14; SF VII 944). See 28 U.S.C. § 2254(d); Maggio vy.

Fulford, 462 U.S. 111, 117 (1983). In addition, Penry raised an

insanity defense at the guilt phase of his trial (SF XVI

2114-2321; XVII 2398-2422), and offered evidence of his dimin-

ished mental capacity to the jury for its consideration in the

sentencing proceeding (SF XVII 2642-55). Both his guilt and

punishment defenses were rejected by the trial jury, thus con-

firming the jury’s belief that Penry knew right from wrong, was

capable of conforming his conduct to the requirements of the law,

committed the capital murder deliberately and with reasonable

expectation of his victim’s death, and constituted a future

threat to society. Tex. Penal Code Ann. art. 8.01 (Vernon 1974);

Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon Supp. 1987).

Penry’s sole challenge is to the legal conclusion of the

courts below that a defendant who has been adjudged competent at

his trial does not qualify as an idiot“ under Ford. In fact,

Ford itself does not support Penry’s position. while the plural-

ity opinion of four justices deferred developing standards for

the enforcement of the constitutional restriction o the state’s

execution of its sentences, Ford vy. Wainwright, __—«»«U.S. te

106 S.Ct. at 2606, the pivotal concurring opinion of Justice

Powell states a “precise formula for determining what process is

due." Johnson v. Cabana, 818 F.2d 333, 337 (Sth Cir.), cert.

denied, ___—*U.S. __, 107 S.Ct. 2207 (1987). As Johnson recog-

nizes, Ford precludes the execution of a defendant who is unable

„to perceive the connection between his crime and punishment."

Id. at 336. Or in Justice Powell’s terms: “the Eighth Amendment

forbids the execution only of those who are unaware of the

punishment they are about to suffer and why they are to suffer

it." . s. at 106 &.Ct. at 2608-09.

Both the state courts and the federal habeas courts below

found as a factual matter that Penry does not meet this standard.

Thus, his argument is based on nothing more than disagreement

with these factual findings, a matter clearly insufficient to

warrant exercise of the cCourt’s certiorari jurisdiction. The

record clearly reveals that the courts below applied the correct

constitutional standard in rejecting Penry’s claim. The issues

raised by Penry concern only the application of well-settled

constitutional principles to his particular factual situation.

This Court sits to decide important, novel or recurring ques-

tions, not to review evidentiary determinations founded on

settled principles of law. Penry’s claims do not justify the

exercise of this cCourt’s certiorari jurisdiction. Tacon vy.

Arizona, 410 U.S. 351, 352 (1973); Graver Mfg. Co. v. Linde Co.,

336 U.S. 271, 275 (1949).

IV.

PENRY’S CLAIM THAT HIS CONFESSIONS WERE

INVOLUNTARY BECAUSE HE DID NOT KNOWINGLY

RELINQUISH HIS RIGHT TO REMAIN SILENT IS

MERITLESS IN LIGHT OF THE FACTUAL FINDINGS OF

THE STATE COURTS.

Penry contends that both of his confessions should have been

suppressed because they were made without a knowing relinquish-

ment of his privilege against self-incrimination. The proper

standard of review for determining waiver was recently discussed

by this Court in Moran vy. Burbine, _._«s-—s«w«-S._ se,» 106 s. ct.

1135, 1141 (1986):

Echoing the standard first articulated in

„ 304 U.S. 458, 464, 58

S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938),

holds that "“(tjhe defendants say

waive effectuation" of the rights conveyed in

the warnings “provided the waiver is made

voluntarily, knowingly and intelligently.*

384 U.S. at 444, 475, 85 S.Ct. at 1612, 1628.

The inquiry has two distinct dimensions.

„ Supra, 451 U.S. at 482,

101 S.Ct. at 1883; Brewer vy. Williams, 430

U.S. 387, 404, 97 s. ct. 1232, 1242, 51

L. Ed. 2d 424 (1977). First, the relinquish-

ment of the right must have been voluntary in

the sense that it was product of a free and

deliberate choice rather than intimidation,

coercion or deception. Second, the waiver

must have been made with a full awareness

both of the nature of the right being aban-

doned and the consequences of the decision to

abandon it. Only if the “totality of the

circumstances surrounding the interrogation"

reveal both an uncoerced choice and the

requisite level of comprehension may a court

properly conclude that the Miranda rights

have been waived.

The issue of voluntariness of a confession and waiver is a iegal

question requiring independent federal determination. Miller v.

Enten. U.s.

factual determinations subsidiary to the determination are

. —_» 106 §.Ct. 445, 450 (1986). The

entitled to a presumption of correctness under 28 U.s.c.

225400) Jd.

The first aspect of the test set forth in Burbine is that

“the relinquishment must have been voluntary in the sense that it

was the product of a free and deliberate choice rather than

intimidation, coercion or deception.” The trial court found that

“from all the evidence that the Defendant was not induced or

coerced by any person to give or make such written statement/s’

by threats, persuasion, compulsion, intimidation, promises,

unlawful detention, or anything else." (Tr. 94-95). The record

evidence reflects more than fair support for the trial court’s

findings. The law enforcement authorities involved in the

investigation and the witnesses to the signing each testified

that no such inducements were given (SF IV 147, 217-18, 230-31,

243; XIV 1722, 1834; XV 1881, 1891, 1981, 2046). Penry testified

at the competency hearing that there was no coercion or induce-

ments (SF VI 533), and that he told the officers what to write

(SF VI 543, 546-48). Until Penry admitted to having committed

the crime, he was unrestrained and accompanied the officers of

his own volition (SF IV 140-41, 144, 150-52, 156, 163, 175-78;

XIV 1576, 1587-88, 1624-27, 1659).

It is undisputed that Penry initiated the conversation

resulting in his first admission, over Officer Nelson’s admoni-

tion to be quiet (SF IV 154; XIV 1608-10, 1618). See Moran x.

Burbine, ___ U.S. at 106 S.Ct. at 1141. When Penry made the

oral statement confessing to the crime in the magistrate’s

courtroom it was in response to his father’s questioning, not the

law enforcement authorities (SF IV 184, 205-07; XIV 1845). Penry

never invoked any of his rights. Further, the words in the

confessions were Penry’s, as he himself testified (SF VI 543).

Any subtle coercion which might be present in police interroga-

tion was simply absent here.

The second aspect of the test is the “awareness of the right

being abandoned and the consequence of the decision to abandon

it." The record does reflect, as Penry contends, that Penry is

of low intellect and that his 10 falls in the mild-moderate

mental retardation range. However, each of the persons who came

in contact with Penry testified that at no time did he act in an

emotional, bizarre or crazy manner; that he appeared to under

stand questions asked and responded in a rational manner; that

they were able to understand and communicate with Penry; that

Penry stated that he understood his rights; that he freely gave

detailed information; and, that he had no trouble with recall (SF

IV 157, 170, 189-90, 205, 226; XIV 1628, 1632-36, 1653, 1659,

1675, 1807-09, 1833, 1849, 1855; XV 1881, 1890, 1980, 1982-83,

1990-91, 1997, 2015, 2018, 2046).

The officers were aware that Penry was illiterate and

recognized that he was a “little slow." His Miranda rights were

not only read off the standard issued card, but explained

individually to him in simple terms numerous times prior to and

during the giving of the statements (SF IV 165-67, 168-69, 183,

185, 190, 196, 203, 212, 223-26; VII 826-28; XV 1995, 2020, 1982,

1984-85). Penry’s father, who certainly would be aware of his

intellectual limitations, told Penry in the magistrate’s court-

room not to sign the acknowledgement of rights form given to him

by the magistrate. The magistrate informed the father that the

rights had been read and that Penry said he understood. to this

the father responded that Penry “can’t write" and he then admin-

istered the warnings (SF IV 184, 205-07; XIV 1845). Finally,

Penry stated he understood he was charged with capital murder and

the consequences of those charges (SF VI 487, 490; VII 782, 785,

850). Psychiatric testimony indicated Penry had the capacity to

understand Miranda warnings. The statements were read to Penry

before signing in their entirety, including the warnings and

waivers, slowly and carefully because Penry could not read (SF IV

390-92, 216-17, 228-30, 241-42). Express statements of waiver

are contained in both.

The evidence underlying the state and federal courts’

conclusions is not disputed in Penry’s petition to this Court.

His claim rests entirely on his assertion that “capital murder

was (njever explained to him in terms he could understand and

that he was [never] cautioned that signing the statement(s) could

be used to give him the death penalty.” (Petition at 20). This

claim, however, is foreclosed by the Court’s recent decision in

Colorado v. Spring, __—-U-S. =, 107 s. ct. 851 (1987), wherein

the Court rejected the proposition that the Constitution requires

that a criminal suspect know and understand every possible

consequence of a waiver of the fifth amendment privilege.

The totality of the circumstances reflect a non-coercive

situation and express waivers of Penry’s Miranda rights. While

an express waiver “is not inevitably either necessary or suffi-

cient to establish waiver,” it is “usually strong proof of the

validity of the waiver." North Carolina v. Butler, 441 U.S. 370,

373 (1979). This, coupled with the absence of deliberate means

calculated to break Penry’s will, his desire to confess, the

repeated and individualized administration of warnings, the

explanation of rights in simple terms, and an ability on Penry’s

part to understand the proceedings and nature of his crime and

the effect of confessing is more than sufficient to support the

conclusion of the courts below that Penry knowingly relinquished

his privilege against self-incrimination. Penry again asks the

Court to review factual matters resolved against him by the

courts below. To do so would be an unwarranted exercise of the

Court’s certiorari jurisdiction.

CONCLUSION

For these reasons, the state respectfully requests that the

petition for writ of certiorari be denied.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant

Attorney General

LOU McCREARY

Executive Assistant

Attorney Generat—

MICHAEL P. HODGE

Assistant Attorney General

Chigf, Enforcement Div n

Assistant Attorney Genera)

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

ATTORNEYS FOR RESPONDENT

87-6177

NO.

phat ad LT

JOHNNY PAUL PENRY, IN THE

PETITIONER

. SUPREME COURT

JAMES A. LYNAUGH,

RESPONDENT

a a a a a em

OF THE UNITED STATES

MOTION FOR LEAVE TO PROCEED AS A PAUPER ON PETITION

4

Johnny Paul Penry, moves this court for leave to proceed as a pauper on

Petition for Writ of Certiorari to the United States Court of Appea's for the

Fifth Circuit. Attached to this motion is Petitioner's Affidavit in Support

of Motion to Proceed in Forma Pauperis on Petition for Writ of Certioreri.

Leave to proceed in forma pauperis was sought and granted in the trial court,

Texas Court of Criminal Appeals, the United States District Court, Eastern

District of Texas, Lufkin Division and in the United States Court of Appeals

for the Fifth Circuit.

Attached to this Motion is Petitioner's Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit.

Qs 0. ew

Curtis C. Mason

CERTIFICATE OF SERVICE

1, Curtis C. Mason, Attorney for Respondent, do hereby certify that «

true and correct copy of the above and foregoirg Motion for Leave to Proceed

as 4 Pauper on Petition for Writ of Certiorari, has been forwarded by United

States Mail, postage prepaid, first class, to the Attorney General of Texas,

p. O. Box 12548, Austin, Texas 78711 on this the Boeday of Dac amsar

1987.

Curtis C. Mason

Attorney for Respondent

—

RECEIVED

Al. 4 1988

| Orrise OF THE CLERK

= COURT, US.

——

JOHNNY PAUL PENRY, § IN THE

PETITIONER ;

* § SUPREME COURT

§

JAMES A. LYNAUGH, §

RESPONDENT § OF THE UNITED STATES

AFFIDAVIT IN TS ON OF MOTION FORK RIT 0 t pfl

IN

I, JOHNNY PAUL PENRY, being first duly sworn, depose and Say that I am

the Petitioner in the above styled cause; in support of my motion to proceed

without being required to prepay fees, costs or give security therefore, |

State that because of my poverty I am unable to pay the costs of said

proceedings or give security therefore, and that I believe I am entitled to

redress.

I further swear that the responses which I have made to the questions and

instructions below relating to my ability to Pay the cost of prosecuting the

petition for writ of certiorari are true.

1. Are you presently employed?

No.

2. Have you received within the past twelve months any income from a

business, profession or other form of self-employment, or in the form of

rent payments, interest, dividends, or other source?

No.

3. do you have any cash or checking or Savings account?

No.

+. DO you own any real estate, stocks, bonds, notes, automobiles, or other

valuable property?

No.

5. List the persons who are dependant upon you for support and state your

relationship to these persons.

None.

I understand that a false statement or answer to any questions in this

affidavit will subject me to penalties for perjury.

X tology f fensy

SUBSCRIBED AND SWORN TO before me on this the DS” day of December,

My commission expires on: