|
Tony Egbuna Ford |
|
Petition on his case |
Petizione sul suo caso |
||
|
CLAIM SEVEN TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN JOINING WITH THE PROSECUTION IN IGNORING THE SECOND SENTENCING SPECIAL ISSUE DURING VOIR
A. The Basis for the Claim At the time of Mr. Ford's trial, Texas' capital sentencing statute provided for the jury's consideration of three special issues during the sentencing phase. The first two had to be addressed before the third: On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.
Art. 37.071, § 2(b). If "the jury returns an affirmative finding to each issue submitted under
Subsection (b) of this article," the jury is then directed to "answer the following issue":
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Art. 37.01, § 2(e). During voir dire, the defense and the prosecution acted as if the first and third special issues were the only matters that the jury would consider. No mention was made of the second special issue, the "anti-parties" issue. Typical of voir dire on the special issues was the colloquy with prospective juror James Parker, who was examined June 11, 1993. Ms. Bradley for the state asked questions about Mr. Parker's questionnaire. She then defined capital murder and went straight to the special issues. At that point, two issues are submitted to you and they're there to your left [pointing to a chart]. And the first one is whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
[SF Vol. II p. 273]. Ms. Bradley then said, Now, if you answer that question yes, you move to the next question. And that question is whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life rather than a death sentence be imposed.
[SF Vol. II pp. 273-274]. Defense counsel then asked questions about the death penalty, capital murder, and spoke only to the two special issues. [SF Vol. II pp. 280-290]. Never, with any other juror, did defense counsel speak to the real second issue, whether Mr. Ford killed or intended to kill anyone or whether he anticipated that anyone would be killed, set forth in Art. 37.071, § 2(b)(2). The defense knew or should have known that the law of parties could become an issue. Defense counsel knew that Mr. Ford denied any involvement in the crime but also knew that he had driven to the Murillo's house with the Belton's and that he waited for them to leave the house. The jury could easily have viewed him as the "wheel man," and for that reason, as a party. Accordingly, the defense should have known that the law of parties would likely become an issue and should have prepared the jury to consider what would become the critical, "anti-parties" issue in the sentencing phase. See SF Vol. X p. 110 (penalty phase argument by defense counsel concerning the anti-parties special issue). Failure of counsel to anticipate this and to voir dire on this issue was unreasonable and could very well have led to the jury not taking this issue as seriously as it would have had there been voir dire on the issue. Given the closeness of the evidence as whether Mr. Ford was involved or not in the crime, but for this error, there is a reasonable probability that the outcome of the sentencing trial would have been different. B. State Court Proceedings This claim was presented among the claims included within Claim 6 in the Amended Original Application for Writ of Habeas Corpus in the state courts. The state courts rejected the claim on the merits.
|