Donald Thigpen appeals from the district court’s refusal to grant a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1988), setting aside his conviction. Thig-pen was convicted of first-degree murder by an Alabama court and sentenced to death under Ala.Code § 13-1-75 (1975) (repealed 1980), which established a mandatory death penalty for those who committed first-degree murder while serving life sentences.
1
After exhausting his remedies in state court,
2
Thigpen petitioned the district court for a writ of habeas corpus, alleging several constitutional defects in his conviction and sentence.
3
The district court set aside his death sentence, finding that section 13-1-75 was unconstitutional under
Sumner v. Shuman,
We organize this opinion as follows. In part I, we outline the facts and discuss thе evidence presented at Thigpen’s trial. In part II, we describe the district court’s conclusion that Thigpen’s conviction was valid and present the parties’ claims on appeal. In part III, we conclude that the admission of the disputed evidence did not render Thigpen’s trial fundamentally unfair.
I.
On May 5, 1972, an Alabama jury convicted Thigpen of the first-degree murder of Cassie Davis; he was sentenced to death. On appeal, the Alabama Court of Criminal Appeals reduced his death sentence to life in prison, pursuant to
Hubbard v. State,
On April 16, 1975, while Thigpen was serving this life sentence, he and several other prisoners escaped from the William C. Holman Prison, a maximum-security fa
After the arrest, Williams, who was serving fifteen years for robbery when he and Thigpen escaped, gave investigators three separate statements describing Lambeth’s murder; in all three, Williams stated that Thigpen had killed Lambeth and that he had neither assisted in nor intended the murder. Williams gave the first of these statements to Investigator Marlin Brewer and Warden Barney Hardin at Holman Prison on April 17, a few hours after he was taken into custody. Williams said that Thigpen and another escapee, John Griffin, had left Williams hiding in the woods. They returned approximately half an hour later with blood on their clothes and a pickup truck. They told Williams that they had “jumped an old man and beat him up and ... took the truck.” Williams then got into the truck and the three drove away. According to Williams, Griffin soon got out of the truck because he was frightened that the police would stop the vehicle on the interstate. Because it later became apparent that Griffin was not involved in the crime, he was never indicted.
The next day, April 18, Williams was transferred to Fountain Correctional Center, where he gave a second statement to Brewer. Williams told Brewer that Thig-pen, on the morning after the escape, said he wanted to get a car in order to flee the country. When the two walked past a house with two cars outside, Thigpen suggested stealing one of the cars. After Williams warned him that people were likely to be in the house, Thigpen decided to burn the house down. Williams, however, was able to persuade Thigpen to abandon this plan.
After this episode, the two walked along a dirt road. When they heard Lambeth’s truck approaching, they hid in some honeysuckle vines. After Lambeth stopped and got out of the truck, leaving the keys inside, they decided to steal it. According to plan, both emerged from the bushes, and Thigpen distracted Lambeth with conversation while Williams got into the truck. Thigpen, however, deviated from their plan: he took an axe from the truck and killed Lambeth. Thigpen told Williams he had to kill Lambeth because he did not want to leave any evidence. They then carried the body — Thigpen holding Lam-beth’s head and shoulders, Williams holding his feet — to an abandoned house nearby. After this, Williams drove them away in the truck. 6
In one of these statements, Williams told Brewer that he had received a letter from Thigpen cautioning him not to talk about the incident. In the letter, Thigpen professed his friendship for Williams, told Williams that the State did not have “anything” on them, advised Williams not to talk to a lawyer unless Thigpen was present, and told Williams to “be cool and live on.” 7
Williams was indicted for first-degree murder. He pled guilty to second-degree murder, pursuant to an agreement with the State, and received a sentence of ninety-nine years in prison before Thigpen was tried. Thigpen wаs indicted under section 13-1-75, as a person who committed first-degree murder while serving a life sentence.
The primary issues at Thigpen’s trial were whether Thigpen killed Lambeth, or, if not, whether Thigpen intended that Williams should kill Lambeth. The State sought to persuade the jury that Williams’ post-arrest statements to investigators were true: Thigpen had killed Lambeth with an axe. Alternatively, the State sought to show that even if Williams had killed Lambeth, Thigpen and Williams conspired to murder him and were equally culpable for his death. Thigpen presented another version of the facts, to which both he and Williams testified: Williams had killed Lambeth with a fencepost, and Thig-pen had not assisted in or intended the murder.
In its case in chief, the State presented several pieces of physical evidence; each is arguably consistent with both the State’s and Thigpen’s versions of the murder. First, an axe was found at the scene, approximately thirty feet from a pool of blood on the ground; tests revealed no blood and no identifiable fingerprints on the axe. Second, several fenceposts and a 4- by 4-inch dressed board were found near the pool of bloоd, and another 4- by 4-inch board was found on the porch of the house; a fingerprint on one of these objects 8 did not match Thigpen’s. Third, three hairs, identified as “negroid,” were caught on a barbed-wire fence above the pool of blood; Thigpen and Williams are both black. Fourth, type 0 blood was found on Thig-pen’s shirt; blood of unascertained type, but of “human origin,” was on his pants and undershirt. Lambeth had type 0 blood; Thigpen has type A. 9 Finally, a pathologist testified that Lambeth had “lacerations” on his scalp and died from blows to his head inflicted with a “blunt-type of instrument.” 10
Also in its case in chief, the State introduced evidence of Thigpen’s 1972 conviction for first-degree murder, his death sentence, and the reduction of this sentence to life in prison, to prove that element of the indictment which alleged, pursuant to section 13-1-75, that Thigpen was serving a life sentence when he killed Lambeth. First, the State presented a certified copy of the formal judgment entry showing Thigpen’s 1972 conviction and death sentence, with a copy of the Alabama Court of Criminal Appeals decision reducing the sentence to life attached.
11
Thigpen’s attorney
Second, the State presented the testimony of O.C. Ellard, a police officer involved in the investigation of the 1972 murder, to show that Thigpen had been convicted in 1972 of the crime described in the judgment entry. In examining Ellard on voir dire to determine whether he knew what sentence Thigpen was serving when he escaped, Thigpen’s attorney elicited the following response: “I know in ’72 he was given the chair.” Thigpen’s attorney objected, moving the court to strike the entire line of testimony from the record. The court again overruled his objection, allowing the evidence to be provisionally admitted, subject to the condition that the State later “connect it up,” i.e., prove its relevance by showing that Thigpen was still serving the 1972 life sentence when he escaped.
Finally, the State “connected up” the earlier evidence: Albert V. Ryer, Director of the Inmate Records Administration, testified that on the date Thigpen escaped, he was “serving ... for Murder, First Degree, life.” Thigpen’s attorney did not object.
After the State had rested its case, Thig-pen called Williams to testify. Williams changed his earlier story: he stated that he, not Thigpen, had killed Lambeth, with a fencepost, not an axe, and that Thigpen neither assisted in nor intended the murder. Williams stated that he and Thigpen were walking along a dirt road in the woods when they heard Lambeth’s truck approaching and hid in the bushes. When Lambeth stopped and began loading fence-posts, Williams came out of this hiding place and approached Lambeth, while Thig-pen continued to hide. Williams offered to help Lambeth load fenceposts; Lambeth responded by asking Williams several times “How [did] you get over here?” Williams began helping Lambeth and, when Lam-beth turned his back, hit him twice with a post in the back of his head. 12 Thigpen never struck Lambeth, but only approached after Lambeth was unconscious, asking Williams what he had done. They then carried the body — Thigpen holding Lam-beth’s head and shoulders, Williams holding his feet — to an abandoned house nearby, and left in Lambeth’s truck. Williams drove first, then Thigpen took over because Williams was tired.
The State, on cross-examination, impeached Williams’ testimony with his prior inconsistent statements of April 18 and April 21; although he admitted making the statements, he stuck to his story and contended that he had made the earlier statements out of fear, to induce the prosecution to let him plead guilty to second-degree murder, and to receive a transfer to another prison where he would be separated from Thigpen. The State also asked him about the letter he received from Thig-pen. Williams denied having received the letter and asserted that he was unable to read. He admitted that he had told Brewer before the trial that he had received such a letter, but explained that actually, after telling Brewer about the letter, he had another prisoner forge it. 13
After Williams testified, Thigpen took the stand and corroborated Williams’ story — that Williams killed Lambeth with a fencepost; Thigpen added that he had tried to stop Williams from killing Lambeth.
On the stand, Thigpen admitted that when he escaped from Holman Prison he was serving a life sentence for murder. He also admitted to a prior conviction for grand larceny.
The State, in rebuttal, presented the testimony of Marlin Brewer, the investigator who took Williams’ first statement implicating Thigpen and Griffin on April 17. See supra p. 1006. Brewer read his synopsis of this statement to the jury.
During closing argument, the prosecutor, without objection, read the judgment entry (disclosing Thigpen’s 1972 first-degree murder conviction and death sentence). The prosecutor added that Thigpen’s death sentence “was later changed after the ruling of FURMAN against GEORGIA.” Thigpen’s attorney objected to this remark on the ground that the prosecutor had misrepresented the contents of the judgment entry, as it did not refer to Furman. 14 The judge sustained the objection. Thig-pen’s attorney, however, did not ask that the statement be stricken from the record or, alternatively, move for a mistrial.
The judge instructed the jury on first-degree murder and informed it that if it found Thigpen guilty of first-degree murder, it was required by section 13-1-75 to sentence him to death. He also instructed the jury on the lesser-included charge of second-degree murder, and on conspiracy or common enterprise. 15 Thigpen asked for and received an instruction that “[t]he law does not countenance the conviction of any person for an offense not contemplated, intended, or committed by him, and of which he had no knowledge that the offense was about to be committed.”
Thigpen also requested and received a limiting instruction on the use of his prior convictions: “I charge you that you are to judge the guilt or innocence of the Defendant on the basis of the evidence presented in this case, and that the prior convictions of the Defendant have no bearing on the Defendant’s guilt or innocence of the charge now against him.” Finally, the judge instructed the jury that a witness could be impeached with prior inconsistent statements and told it not to take the prior inconsistent statements as true, but to weigh them in deciding whether to believe the witness. 16 The jury found Thigpen guilty of first-degree murder and sentenced him to death.
II.
In his habeas corpus petition, Thigpen argued that the admission of his 1972 conviction and sentences (both the death sentence and the subsequently-imposed life
On appeal, Thigpen asserts that this court should reverse the decision of the district court for two reasons. First, he argues that because section 13-1-75’s mandatory death penalty is unconstitutional, the trial court had no legitimate reason for admitting evidence relating to the 1972 conviction, and the erroneous admission of this evidence rendered the trial fundamentally unfair.
The State responds that we should not judge the admissibility of the evidence by hindsight. Because the Supreme Court had not yet declared death penalty statutes like section 13-1-75 unconstitutional when Thigpen was convicted, the State argues, the trial court properly admitted the evidence of Thigpen’s life sentence, and the State was entitled to prove this element of the indictment by introducing the judgment entry during the guilt/innocence phase. 18
Alternatively, the State argues that even if the evidence was not admissible to prove Thigpen’s life sentence under section 13 — 1— 75, it was admissible for two other legitimate purposes; the trial was therefore not fundamentally unfair. First, Thigpen, by testifying, placed his character in issue; evidence of his prior conviction was admissible to impeach his credibility, and the incremental prejudice caused by the jury’s knowledge that he had been sentenced to death was insufficient to deprive him of a fair trial. Thigpen responds that he only chose to testify because the court had already erroneously admitted all of this evidence. Second, the State asserts that the evidence of Thigpen’s escape from Holman was admissible as part of the circumstances, or res gestae, of the crime with which he was charged; because the jury knew that Thigpen had escaped from a maximum-security prison and thus could infer that he had received a long sentence for a violent crime, evidence that he had been convicted of murder and sentenced to death added little prejudice.
We do not address these arguments in detail. We find that even if the evidence was not admissible under section 13-1-75 or to impeach Thigpen’s testimony, it was nonetheless admissible under Alabama law because it was relevant to Thigpen’s motive for killing Lambeth. Since the evidence was relevant and admissible, its introduction could not have rendered Thig-pen’s trial fundamentally unfair.
III.
A federal court may grant a state prisoner’s petition for a writ of habeas corpus only to correct federal constitutional errors. 28 U.S.C. § 2254(a). We therefore generally will not review a state trial court’s decisions on whether to admit evidence and will not grant a writ of habeas corpus simply because a state trial judge has erred, under state law, in this determination.
Leverett v. Spears,
We will grant habeas relief, however, if the admission of the evidence has deprived the petitioner of a federal constitutional right. For instance, if a state trial judge has correctly admitted evidence under state law, but this application of the state rule violated a specific federal constitutional right, we will grant the writ.
See Burgett v. Texas,
Similarly, if a state trial judge erroneously admitted evidence in violation of a state law and the error made the petitioner’s trial so fundamentally unfair that the conviction was obtained in violation of the due proсess clause of the fourteenth amendment, we will give habeas relief.
Leverett,
We therefore will set aside Thigpen’s Alabama conviction if the Alabama judge erred, under state law, by admitting the evidence of the 1972 conviction and subsequent sentences, and the evidence was so crucial, critical, and highly significant that its admission rendered Thigpen’s trial fundamentally unfair. 20 Our initial inquiry, then, is whether the judge erred, under Alabama law, in admitting the evidence.
We focus on the admission of the judgment entry, as Thigpen has procedurally defaulted his objections to all of the other introductions of the evidence.
See supra
note 17. The judgment entry, which was first introduced as an exhibit and later read to the jury during closing argument, proves each fact to which Thigpen objects: the 1972 conviction, the death sentence, and the rеduction of that sentence to life in prison. The most prejudicial information was Thigpen’s prior conviction for wilful, malicious, deliberate, and premeditated murder. If evidence of the conviction was admissible, the admission of evidence of the death sentence and its reduction to life added only incremental prejudice. If evidence of the conviction was not admissible, then the trial judge’s error deprived Thig-pen of due process: the State’s case against him was not overwhelming, and the jury likely attached undue importance to the information that he had already been
According to the State, this evidence was admissible for two reasons. First, when a statute provides for enhanced punishment because of prior convictions, evidence of a prior conviction is admissible in the guilt/innocence phase of the trial.
See Marshall v. Lonberger,
Second, when a criminal defendant chooses to testify in his own defense, he puts his credibility in issue, and evidence of prior convictions is properly admissible to impeach.
See
Ala.Code § 12-21-162(b) (1975) (evidence of crimes involving “moral turpitude” admissible to impeach witness);
Harbin v. State,
We address neither of these arguments. We will assume that, because section 13 — 1— 75 was unconstitutional when Thigpen was tried, none of the evidence was properly admitted under that statute. In addition, we will accept Thigpen’s argument on appeal that he would not have testified if the evidence of his prior conviction and sentences had not been admitted earlier in the trial.
21
If the evidence was properly admissible for a purpose other than under section 13-1-75 or to impeach Thigpen’s credibility, however, Thigpen suffered no undue prejudice from its introduction, and his conviсtion was not fundamentally unfair.
Cf. Zant v. Stephens,
Under Alabama law, all relevant and material evidence is admissible unless some exception to this rule bars its admission.
See Dawkins v. State,
Evidence of an extrinsic offense, especially a prior conviction for a similar crime, is undeniably relevant to the jury’s determination of whether the defendant committed the crime for which he is on trial (the “charged crime”): that a person has been convicted of a previous first-degree murder, for instance, suggests that he committed the first-degree murder at issue, because he may have a propensity to commit violent crimes.
See Michelson v. United States,
This relevant evidence, however, is likely to be extremely prejudicial to the defendant: the jury may attach undue importance to the extrinsic offense.
See Ex parte Arthur,
The Alabama courts, in response to this potential for dangerous prejudice, have created a prophylactic rule: evidence of an extrinsic offense is not admissible if it shows
only
the defendant’s bad character and the likelihood that he acted in conformity therewith by committing the charged crime.
Averette v. State,
If, however, the extrinsic offense evidence meets two requirements, it is admissible. First, the extrinsic offense must be relevant to some element or aspect of the charged crime, such as motive, identity, or intent; it must tend to prove the defendant’s guilt of the charged crime for a reason
other
than bad character.
See, e.g., Mason v. State,
The Alabama courts have provided a list of elements or aspects of a charged crime to which an extrinsic offense may be relevant: (1) physical capacity, skill, or means to commit the charged crime; (2) the res gestae of the crime; (3) identity of person or crime; (4) scienter or guilty knowledge; (5) intent; (6) plan, design, scheme, or system; (7) motive; (8) malice; (9) to rebut special defenses; or (10) aspects of various particular crimes.
See, e.g., Nelson,
When evidence of an extrinsic offense is admissible because it is relevant to a real and open issue other than character, the danger of prejudice still exists, but this cost is acceptable because of the added value of the evidence in proving the charged crime. As we have stated above, however, the court in its discretion may exclude this material and relevant evidence if its probative value is substantially outweighed by the undue and unfair prejudice it may create,
Averette,
Under these rules, the evidence of Thigpen’s prior conviction was admissible. It was relevant to motive, which tended to prove the identity of the killer — a real and open issue in this case.
26
At trial, Thigpen,
We find that Thigpen’s prior conviction was relevant to this determination. Murder was not necessary to steal the truck under any version of the crime: Lambeth had left the keys inside, and there was consequently no need to subdue him to get them. The killing was thus unprovoked, unnecessаry, and contrary to plan. Because Thigpen had been convicted of first-degree murder and was serving a life sentence when he escaped, he had the most to lose from being captured, and the added hours of escape time gained by Lambeth’s death were more valuable to him. Thig-pen, therefore, had the stronger motive.
Unlike Thigpen, Williams had an incentive not to kill Lambeth. Williams had been serving a fifteen-year sentence when he escaped. If he was captured and returned to prison, the time added to his sentence for escape and for the theft of the truck would be considerably less than the time added for Lambeth’s murder. If we assume that Thigpen believed, because of his previous experience with a death sentence, that he could not be sentenced to death if he killed Lambeth,
29
then Thigpen
Moreover, if Thigpen were captured, he had at least eight more years to serve before he would be eligible for parole. Williams, on the other hаnd, could serve, at most, five more years before he would be eligible. 30 It is also possible that Thigpen’s state of mind on the day of the murder was affected by knowledge of the possibility of a long wait for parole if he were recaptured, after escaping while serving a life sentence for first-degree murder and committing a second murder. He thus had a greater incentive not to be captured than Williams. By killing Lambeth, Thigpen and Williams gained a few extra hours before the theft of the truck was reported and its description conveyed to searchers. 31 As we have shown, Thigpen would receive more benefit from these few extra hours than Williams.
The relevance of Thigpen’s prior conviction to his motive to murder Lambeth, and thereby to the identity of the killer, is clearly illustrated by a discussion of a hypothetical closing argument that could have been made had the evidence not been admitted. Without this evidence, Thigpen’s defense attorneys could have argued that Williams, not Thigpen, was the desperate character with the most to lose. They might have implied, for instance, that Williams was the dominant member of the pair, who took the lead in the escape and was more likely to have struck the fatal blow which killed Lambeth. At oral argument before us, Thigpen’s attorney provided a clear example of the interpretation the defense might have urged to the jury without the relevant evidence of Thigpen’s prior conviction: he stated that the letter which Thigpen ostensibly sent to Williams was not a letter attempting to coerce Williams into remaining silent or changing his story, but instead was offered in “camaraderie,” to show Thigpen’s support and affection for a friend who was in trouble by warning him that he should not admit the murder to authorities. In this interpretation, Thigpen was protecting Williams, not himself.
Once we have determined that evidence of Thigpen’s prior conviction was admissible, because it was relevant to motive, a real and open issue in the case, we must decide whether the trial judge, if he had admitted the evidence for this purpose, would have abused his discretion. We note that some Alabama case law indicates that the trial judge may
never
exclude evidence which is relevant to motive. In
Kelley v. State,
Alabama courts have permitted the admission of evidence of extrinsic offenses in analogous circumstances. In
Nelson,
the defendant claimed that he had accidentally shot the victim beforе stealing the victim’s car. The court, reasoning that “[t]he evidence of the [prior] killing ... could reasonably reflect a desire to escape and thus shed light on the motive for the [charged] murder,”
Moreover, the State, in the case at hand, was entitled to prove the extrinsic offense by the introduction of the certified copy of the judgment entry during its case in chief. As we have shown, when it is clear that the defendant intends to create an issue of fact for which there is an exception to the general rule that extrinsic offenses are not admissible, the state may introduce extrinsic offense evidence in its case in chief.
See supra
p. 1015. At Thigpen’s trial, it was obvious, before the State introduced the evidence of Thigpen’s prior conviction, that Williams would testify and would raise the issue of identity, and thus motive. Williams had given the State three separate and inconsistent versions of the murder which incriminated Thigpen. Thigpen, nonetheless, had subpoenaed Williams, who was in prison, to testify in Thigpen’s defense, and had asked the court to order that he be brought to court for that purpose. Clearly, Thigpen wanted Williams’
Finally, Thigpen was not prejudiced by the absence of a limiting instruction telling the jury to consider the evidence of his prior conviction only for motive, and warning it not to consider the prior conviction to show a propensity for criminal behavior. When evidence of an extrinsic crime is admitted because it is relevant to motive or one of the other exceptions, the defendant is entitled to such a limiting instruction. 1 Wharton’s Criminal Evidence § 203, at 892 (14th ed. 1985); Schroeder,
Collateral Crimes,
35 Ala.L.Rev. at 246-47;
see also Deep v. State,
IV.
We find that the evidence of Thigpen’s prior conviction was relevant and admissible to show his motive, and that its potential for undue prejudice did not substantially outweigh its probative value. As a result, the trial was not rendered fundamentally unfair. The decision of the district court is, therefore
AFFIRMED.
Notes
. Section 13-1-75 states: "Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.” Ala.Code § 13-1-75.
Section 13-1-75 was once codified at Ala.Code tit. 14, § 319 (1940) (recodified 1958); the state and district court opinions in this case cite the statute as such and call it "section 319.”
. Thigpen first unsuccessfully appealed his conviction and sentence.
Thigpen v. State,
. In our earlier decision in this matter,
Thigpen v. Smith,
. The district court also certified a question to the Alabama Supreme Court: whether, under Alabama law, Thigpen could be resеntenced to death in a new sentencing hearing, or whether his death sentence should be reduced to life in prison. In response, the Alabama court held that Thigpen could not be resentenced to death, because Alabama had no constitutional death penalty statute in effect when he committed his offense.
Thigpen v. Thigpen,
. Thigpen waived his right to appeal the district court’s adverse dispositions of his other challenges to his conviction by not raising them in this appeal.
. This portion of the April 18 statement read, in pertinent part:
I [Williams] said I think I am going to get that truck because the keys are in it. I went directly to the truck talking. How you all get over here, [Lambeth] said. That don't matter.... [Thigpen] said let me help you load the poles. [Lambeth] said no, that is all right. So I was getting in the truck that time. Thig-pen was standing there and saying that. I told Thigpen I said no, man. Thigpen tried to hit him in the foot with the poles or something. He grabbed an axe. It was an axe on the truck.
... Thigpen ... grabbed the axe and hit the old man with it. The old man fell down. He told me come on over here ... and help me. I said what you done ... ? He said I believe he is dead. Say I got to kill him because I don't want to leave no evidence. He took him. I grabbed him by the legs. As you can see I had him by the foot to help him raise him up through the window [of the house] so I started driving.
... [We] pushed him in the window. I see him done kill him. Now I said put more heat on. He said that we couldn’t leave no evidence, don’t want to go be no evidence.
. The copy of this letter in the record on appeal is illegible: our summary is taken from the earlier opinion of the district court,
Thigpen,
. The trial testimony does not reveal which of these objects was tested.
. Thigpen argues that he got Lambeth’s blood on his clothes when he helped Williams carry Lambeth to the abandoned house after Williams killed him. The record does not reveal whether Williams also had blood on his clothing.
. It can be inferred that the lacerations could have been inflicted with an axe and that the blunt instrument could have been a fencepost.
. We note that the court of criminal appeals decision,
Thigpen v. State,
. When asked why he hit Lambeth, Williams stated: "He was inquiring about where I was from and how I got over there and he kept inquiring. That is the reason didn't one of us come out of the woods. I figure both of us, he would have been suspicious about nine men on escape.” Williams also said: "I didn’t mean to hurt him."
. The letter was admitted into evidence during redirect examination by stipulation of the parties.
. Thigpen's attorney stated: "I object to that. Nothing in here that they changed it by the ruling except they changed it."
. This jury instruction read, in pertinent part: When by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a co-conspirator, each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not.
. This jury instruction read:
I instruct you that in the instances where the attorneys for either the Defendant or for the State of Alabama have examined any witness as to an alleged statement made prior to the witness’ testimony in this trial, and you find this statement to be inconsistent with the testimony given by the witness at this trial, you shall not consider the previous inconsistent statement as evidence that the facts contained therein are true. However, you may weigh the prior inconsistent statement in arriving at your decision whether or not to believe the witness’! 1 trial testimony.
. Thigpen argued to the district court that the trial court improperly allowed the jury to hear evidence of his prior conviction and death sentence in three ways: through the admission of the judgment entry and attached opinion,
see supra
p. 1007, through witness Ellard's remark that Thigpen "got the chair,”
see supra
p. 1008, and through the prosecutor’s remark in closing argument that Thigpen’s death sentence had been reduced because of the
Furman
decision,
see supra
p. 1009. The district court found that claims based on the latter two instances were procedurally barred, and Thigpen showed neither cause nor prejudice, under
Wainwright v. Sykes,
We affirm the district court’s conclusion that Thigpen procedurally defaulted his claims of constitutional error based on witness Ellard's remark and the prosecutor's reference to
Fur-man,
and that he showed neither cause nor prejudice. On direct appeal from his conviction to the Alabama courts, Thigpen complained only that the
State
had asked Ellard about Thig-pen’s
prior conviction;
he did not ask the court to reverse his conviction because of Ellard’s remark (elicited by the defense) that Thigpen "got the chair." This failure to raise the claim on direct appeal was a procedural default under Alabama law.
See Pelmer v. White,
In addition, the Alabama court on direct appeal made a final determination that a claim based on the prosecutor's reference tо
Furman
was procedurally defaulted, because Thigpen’s attorney did not properly preserve his objection to the remark.
Thigpen,
Thigpen argues that even if he procedurally defaulted these claims, we should consider them to show the extent to which the trial was infected with prejudice through the court’s initial erroneous admission of the judgment entry. This argument seems to be merely a stratagem to avoid the operation of the procedural default rules. Prejudice alone, without cause, generally will not permit a federal court to hear a procedurally defaulted claim.
See Murray v. Carrier,
. The State also argues that Thigpen has either procedurally defaulted (by not raising in state court) or waived (by not raising in the district court) his claim that, because section 13-1-75 was unconstitutional, the admission of this evidence was improper. Thigpen, however, did not waive the claim, because he raised the issue in his habeas petition, when he claimed that
[t]he introduction of evidence concerning petitioner’s prior conviction for murder during the guilt or innocence phase of his trial, ostensibly to prove that petitioner had been serving a life sentence at the time of the crime, ... violated petitioner’s rights guaranteed by the Eighth and Fourteenth Amendment[s].
Moreover, the Alabama Court of Criminal Appeals addressed the merits of the claim when it found, first, that section 13-1-75 was constitutional,
Thigpen,
. Thigpen objects to evidence of a prior conviction. Evidence that is admissible to show "bad acts” of the defendant other than the crime for which he is on trial (the "charged crime”) is not, however, limited to prior convictions. We use the term "extrinsic offense” to describe all crimes, wrongs, or acts other than the charged crime.
See United States v. Beechum, 582 F.2d
898, 902 n. 10 (5th Cir.1978) (en banc),
cert. denied,
. Thigpen argues that although the trial court may have correctly applied existing Alabama law in 1976 by admitting the evidence under section 13-1-75, this statute was nonetheless unconstitutional; the admission of the evidence in accordance with it therefore had no legitimate purpose and deprived him of due process. Because we conclude that the evidence was admissible for another legitimate purpose — to show Thigpen’s motive for the murder — we do not inquire whether the trial court's correct application of an Alabama rule violated one of Thigpen’s constitutional rights.
. By making these assumptions, we express no opinion on the merits оf the parties’ contentions on these points,
. Alabama law is unclear on whether evidence of extrinsic offenses is admissible if it is relevant to aspects of the charged crime that are not included in this list.
Compare Nicks,
521 So.2d
.The defendant’s plea of not guilty, though, also may put an element of the charged crime, such as intent, at issue.
See United States v. Roberts,
. If the extrinsic offense is so remote that it is not relevant to the charged crime, it is inadmissible. If it is relevant but remote, the court may, in its discretion, exclude it.
See Nicks,
. Although many Alabama cases considering the admission of evidence of extrinsic offenses do not explicitly engage in an analysis of whether undue prejudice outweighs probative value,
see, e.g., Nelson,
. Thigpen’s escape from Holman Prison undoubtedly would have been admissible as part of the circumstances, or res gestae, of the crime, and as part of a continuous criminal transaction.
See Reeves v. State,
.Generally, an extrinsic offense is relevant to show the identity of the perpetrator of the charged crime only when both crimes were committed in such a "novel and peculiar manner” that it is likely that they were committed by the same person.
Nicks,
. Motive has been defined as "the reason that nudges the will and prods the mind to indulge the criminal intent,"
Benton,
. It is doubtful that Thigpen knew of the existence of section 13-1-75. According to Thig-pen’s habeas petition, the statute had only been used 9 times since it was enacted.
If we make the unlikely assumption that Thig-pen knew about section 13-1-75, this argument is reversed. If the possibility of a death penalty was part of Thigpen's state of mind on the day of the murder, and he knew that only he, andnot Williams, could receive this death penalty (because Williams was not serving a life term), then Thigpen had an incentive not to kill Lam-bеth.
. Testimony at Thigpen’s evidentiary hearing on his petition for a writ of error coram nobis revealed that when Lambeth was killed, an Alabama prisoner was eligible for parole after one-third of his sentence or ten years, whichever was less. Prisoners received parole after interviews with the three members of the parole board. Because Williams was serving 15 years (one five- and one ten-year sentence), he was eligible for parole in five years; the record does not reveal when he began his term. Thigpen was serving a life term, which started in 1973 when the Alabama court reduced his original death sentence. In 1975, therefore, he had to serve eight more years before he was eligible for parole.
. Another possible incentive for killing Lam-beth was to escape prosecution for the theft of the truck, to which Lambeth was the only witness. This incentive applied equally to Williams.
. Moreover, in the cases in which federal and other state courts have considered analogous issues, they generally find that evidence of the prior conviction is relevant and admissible.
See Porter v. Estelle,