Lesley Warren v. Edward Thomas
Opinion
A North Carolina jury convicted Lesley Eugene Warren of the first-degree murder of Katherine Johnson. The government sought the death penalty, and at the sentencing phase it introduced evidence that Warren recently had been convicted of murdering two other women. Because of the death sentence he received for one of those convictions, Warren could not be paroled if sentenced to life for the murder of Johnson, and asked the trial court to so instruct the jury. The court declined to give the instruction, and the jury sentenced Warren to death.
Under
Simmons v. South Carolina
,
I.
A.
On July 15, 1990, Warren met Katherine Johnson, a 21-year-old college student, at a picnic he was attending with a friend in High Point, North Carolina. Warren and Johnson spent the rest of the day together, first with a group that included Warren's friend and later by themselves. That night, Warren and Johnson went for a ride on Warren's motorcycle, ending up in the middle of a soccer field. There, Warren choked Johnson to death. After hiding Johnson's body in the trunk of her car and abandoning the car in a parking garage, Warren returned to his friend's house and went to sleep on the couch.
Five days later, police arrested Warren on a South Carolina warrant for the murder of a woman named Velma Gray. When questioned, Warren confessed to killing Gray in South Carolina in 1989. He also confessed to killing Jayme Hurley in North Carolina in May 1990. And finally, he confessed to killing his third victim, Katherine Johnson, just days earlier.
In 1996, Warren was tried and convicted of the first-degree murder of Katherine Johnson. By then, he already had been convicted in South Carolina of the first-degree murder of Velma Gray, for which he received a life sentence. He also had pled guilty to the first-degree murder of Jayme Hurley in North Carolina, for which he was sentenced to death. That death sentence meant that under North Carolina law, Warren could not be paroled if sentenced to life for the murder of Katherine Johnson.
B.
At the sentencing phase of Warren's trial, the government sought the death penalty based on a single aggravating factor: that Warren previously had been convicted of another capital felony, see N.C. Gen. Stat. § 15A-2000(e)(2) (1995), in the form of his two prior murder convictions. As a result, that Warren had killed not just one but three women became a focal point of the prosecutor's lengthy closing argument for the death penalty. Using the horrific details of all three murders, along with evidence from the guilt phase of trial, the prosecutor argued that Warren deserved a death sentence.
Because Warren's Simmons claim turns on the prosecutor's closing argument, we describe it in some detail. The prosecutor began by describing the "depravity" of each of Warren's three murders, J.A. 1735, which he attributed to choices made by Warren: "He could have chosen life. But instead, in all three instances, he chose death," J.A. 1733-and not just any death, but death by slow strangulation, for "no reason" at all, J.A. 1734-35. Warren killed because he liked it, the prosecutor argued, and he felt no remorse.
Then, in a portion of the argument on which Warren focuses for his Simmons claim, the prosecutor invoked the testimony of a psychologist, retained by the defense, who had prepared a social history on Warren. The defense's own witness, the prosecutor argued, described Warren as having a "habit" of killing women, doing it "over and over and over." J.A. 1740. He noted a "pattern" in Warren's behavior, consistently hiding the evidence of his crimes-his victims' bodies-"[i]n the water, in a grave, in a car." J.A. 1741. "What will stop him?," the prosecutor asked, before repeating, "Over and over and over." J.A. 1740.
The prosecutor explained to the jury the aggravating factor on which the government was relying-that Warren previously had been convicted of a capital felony-and offered the first-degree murders of Hurley and Gray as support. The government had introduced detailed evidence of those murders, the prosecutor said, so that the jury could do a "character analysis" of the defendant, to "see whether or not [Warren] deserves to die for what he did." J.A. 1745. The answer, the prosecutor urged, was yes, addressing the defense's mitigating evidence and arguing it was insufficient to reduce Warren's moral culpability for his crimes.
Near the end of his argument-in the other portion on which Warren primarily relies-the prosecutor acknowledged that "[t]he Bible tells us, you know, to turn the other cheek, that ... we should always give people a second chance." J.A. 1760-61. But Warren, he argued, already had been given a second chance, and "chose not to use" it; instead, after murdering Velma Gray, Warren continued to kill. J.A. 1761. "How many more chances do we have to give him?," the prosecutor asked the jury.
The prosecutor concluded by talking again about the three women Warren had murdered, and showing Johnson's picture to the jury. He told the jury that while it could not bring peace to the victims, it could restore their "dignity." J.A. 1764. To do "justice" for the victims and the community, the prosecutor finished, the jury should recommend death. J.A. 1765.
In an effort to persuade the jury to recommend a life sentence, Warren's lawyers argued numerous mitigating factors. Warren's moral culpability, they contended, was substantially reduced, primarily by abuse during his childhood and serious mental and emotional disturbances in his youth and teenage years. The jury ultimately recommended a sentence of death.
C.
Warren raised numerous issues on direct appeal of his conviction and death sentence. Among them was a claim that the trial court violated the constitutional rule set out in
Simmons
when it refused to instruct the jury on his parole ineligibility. The Supreme Court of North Carolina rejected that claim on the merits.
Simmons
, the court explained, applies only where the government argues for the death penalty on the ground that the defendant will pose
a future danger to society; under those circumstances, it violates due process to conceal from the jury that the defendant in fact will be confined to prison for life, without the chance of parole. But here, the court concluded, the government had not based its plea for the death penalty on any threat of future danger to the community: "We have reviewed the prosecutor's argument that [the] defendant contends entitles him to relief, and in our view the prosecutor did not argue future dangerousness."
State v. Warren
,
In 2005, Warren filed a habeas petition in federal district court under
Because the state supreme court had denied Warren's
Simmons
claim on the merits, the district court explained, Warren was entitled to relief only if that decision was an "unreasonable application of[ ] clearly established [f]ederal law," or "based on an unreasonable determination of the facts." J.A. 2128 (quoting
The statements identified by Warren, the district court found, "constitute only a few words and phrases in an extensive closing argument that was focused on Mr. Warren's past acts and status as a serial killer." J.A. 2129 (emphasis added). First, there was the description of Warren's "habit" of killing women (and later the reference to Warren as "addicted" to killing), coupled with the question, "What will stop him?" J.A. 2126-27. "Read in context," the court concluded, it was not unreasonable to view those statements, which came "at the end of a lengthy description of [Warren's] murders," as emphasizing that Warren was a serial killer who was not stopped until he had killed three times. J.A. 2127. Similarly, the reference to second chances, questioning "[h]ow many more chances do we have to give him?," reasonably was understood, in context, as "rhetorical emphasis on the three murders Mr. Warren had committed: his three chances." J.A. 2127-28. The focus of the prosecutor's argument, the court concluded, was Warren's prior actions "in committing the three murders of which he was convicted" as a "cowardly serial killer," with the death penalty the "only way for the three murdered women to achieve some sense of justice and dignity." J.A. 2126-27.
Warren timely appealed the district court's dismissal of his habeas petition. We granted a certificate of appealability limited to the Simmons claim.
II.
We review the district court's denial of a habeas petition de novo.
Teleguz v. Pearson
,
That is a high bar. To be an "unreasonable application" of Supreme Court precedent, the state court's decision must be "objectively unreasonable, not merely wrong; even clear error will not suffice."
White v. Woodall
,
It is well established that in seeking the death penalty, the government may rely on the "possibility that the defendant may be returned to society" and the risk that his "probable future behavior" then would pose to the community.
California v. Ramos
,
In
Simmons
, the Court confronted a case in which the prosecutor argued to the jury that its role was "to decide what to do with [the defendant] now that he is in our midst," and told the jury: "Your verdict should be a response of society to someone who is a threat. Your verdict will be an act of self-defense."
This case, the Supreme Court of North Carolina held, is different. Here, according to the state court, the prosecutor did not argue "future dangerousness" in support of the death penalty, as contemplated by
Simmons
, so Warren had no due process right to respond with information about his parole ineligibility.
Warren
,
As the district court explained, the prosecutor's argument, read in full, reasonably can be understood as essentially backward-looking. In support of the death penalty, that is, the prosecutor relied not on the risk that Warren might in the
future
be released from prison and endanger the community, but rather on what Warren already had done in the
past
-namely, his actions and state of mind in committing the three murders of which he was convicted.
See
J.A. 2129 (describing prosecutor's argument as "focused on Mr. Warren's past acts and status as a serial killer"). That those murder convictions reveal Warren to be a person fairly described as "dangerous" does not by itself trigger
Simmons
, or virtually all capital proceedings would be governed by that decision.
Cf.
Simmons
,
The Supreme Court of North Carolina reasonably applied
Simmons
in concluding that Warren's prosecutor did not advance this "future dangerousness" argument. Taken in context, the portions of the argument cited by Warren-"a few words and phrases in an extensive closing argument," J.A. 2129-may sensibly be read as commenting on Warren's past crimes and character, rather than any prospect of his release from prison. The question, "What will stop [the defendant]?," cited throughout Warren's briefs on appeal, is paired with a description of Warren's past crimes as especially depraved and of Warren as a sociopath without a conscience. J.A. 1740-41. Against that backdrop, the prosecutor reasonably may be understood as using his question-along with his references to Warren's "habit" of killing women or his "addict[ion] to killing," J.A. 1740, 1761-62-to emphasize that Warren was a remorseless "serial killer" who was not stopped until he had committed three murders.
Warren
,
In sum, it is not unreasonable to find that these statements, taken separately or together, are different in kind from those in
Simmons
-statements that "put [Simmons's] future dangerousness in issue" by "strongly impl[ying]" that Simmons would "be let out [of prison] eventually if the jury did not recommend a death sentence" and would pose a "continuing threat to the community," and linking that future threat to the jury's need to return a verdict in "self-defense."
Simmons
,
III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
Because the decision in
Kelly v. South Carolina
,
In light of this holding, we need not reach the government's alternative arguments against application of
Simmons
to this case. Accordingly, we express no view as to the government's contention that Warren was not parole ineligible within the meaning of
Simmons
because his ineligibility was a function of his separate death sentence for the murder of Jayme Hurley, rather than the sentencing options before the jury in the instant case. Nor need we consider whether, as the government urges, any
Simmons
error in Warren's sentencing could have been deemed harmless under
Brecht v. Abrahamson
,
Reference
- Full Case Name
- Lesley Eugene WARREN, Petitioner-Appellant, v. Edward THOMAS, Warden, Respondent-Appellee.
- Cited By
- 2 cases
- Status
- Published