United States v. Terry

*District Judge for the Southern District of Texas, sitting by
designation.
*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 19, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-50818
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE EDWARD TERRY, JR. also known as Clarence Edward Terry,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
Civil Docket #W-01-CR-25-1
_________________________________________________________________
Before JONES and BENAVIDES, Circuit Judges, and KAZEN*, District
Judge.
PER CURIAM:*

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The court has carefully considered this appeal in light
of the briefs and oral arguments of counsel. Finding no reversible
error of fact or law, we affirm the conviction and sentence.
Terry first objects to the district court’s instruction
to the jury to consider his guilt of the lesser offense of second
degree murder if “. . . after all reasonable efforts, you are
unable to reach a verdict, . . .” on first degree murder. Even
assuming that Terry properly preserved his objection to this
instruction, which follows the Fifth Circuit pattern jury
instructions, the trial court did not err. This instruction was
more favorable to the defense than the 1990 version, which required
the jury to acquit the defendant before they could move on to the
lesser offense.
Terry also contends that the court’s instruction to the
jury on a sudden quarrel was inadequate, but this issue must be
reviewed for plain error only. The term “sudden quarrel” is
sufficiently clear as not to have required further definition by
the district court. There was no error.
Third, Terry asserts that his counsel was ineffective for
failing to object to “expert” testimony regarding blood splatter
evidence, particularly because the district court practically
invited such an objection. Even if the testimony was improperly
admitted, however, Terry cannot establish prejudice under the

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Strickland test, due to the overwhelming weight of the evidence
against him.
Similarly, because of the extensive incriminating
evidence against Terry, especially his own confession, Terry’s
challenge to the sufficiency of malice aforethought and
premeditation evidence lacks merit. The gruesome details and
extended duration of the attack on Nicole Johnson fully supported
the jury’s determination.
AFFIRMED.

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