Alabama Executes Man Who Arranged
His Wife's Murder
The New York Times
March 21, 1992
A man who admitted hiring two men to kill his
pregnant wife so that he could marry another woman was executed
early today in Alabama's electric chair.
Larry Gene Heath, 40 years old, made no last
attempt to appeal his death sentence for the 1981 slaying of
Gov. Guy Hunt on Tuesday denied a request for
clemency from Mr. Heath's supporters, including a group of
ministers. Friends at Holman Prison called him the "Death Row
Apostle" because he had claimed to have undergone a religious
conversion in prison. Secret Engagement
Prosecutors said Mr. Heath, who was secretly
engaged to another woman, had persuaded his 21-year-old wife, who
was nine months pregnant, to cosign a $2,000 home-improvement
loan. He used the loan to pay for her murder, the prosecutors said.
She was abducted from their home in Phenix City,
Ala., and shot in the head. Her body was found in Georgia. The
male fetus also died.
The men hired by Mr. Heath were convicted and
given life sentences.
Mr. Heath was arrested four days after the
killing. He pleaded guilty to murder in Georgia in February 1982
and was sentenced to life in prison.
In January 1983, a jury in Alabama convicted
him of murder and a judge sentenced him to die.
The U.S. Supreme Court rejected "double
jeopardy" arguments that Mr. Heath could not be sentenced to death
in one state after being given a life sentence for the same crime
in another state.
Heath v. Alabama, 474 U.S. 82
(1985) is a case in which the United States Supreme Court ruled
that, because of the doctrine of dual sovereignty (a consequence
of federalism), the double jeopardy clause of the Fifth Amendment
to the Constitution does not prohibit one state from prosecuting
and punishing somebody for an act of which he had already been
convicted and sentenced another state.
The Fifth Amendment to the Constitution of the
United States says:
No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken
for public use, without just compensation.
U.S. Const. amend. V.
The clause "nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb"
means that the government cannot re-prosecute somebody for a crime
of which he or she has been found "not guilty"; likewise, the
government cannot appeal against a verdict of acquittal. Fong
Foo v. United States, 369 U.S. 141 (1962); see also United
States v. Martin Linen Supply Co., 430 U.S. 464 (1977).
However, the first ten amendments to the Constitution, known as
the Bill of Rights, were originally interpreted as binding only on
the Federal government; for example, the First Amendment, which
guarantees freedom of religion, expressly begins with the words, "Congress
shall make no law . . . ." It was not until the passage of the
Fourteenth Amendment, the first section of which says, in part,
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws" that any serious
consideration was given to the proposition that the Bill of Rights
is binding on the states. Cf. Twining v. New Jersey, 211
U.S. 78 (1908).
Since then, the decisions of the United States
Supreme Court have gradually evolved so as to include most state
actions within the scope of the Bill of Rights. See, e.g.
Washington v. Texas, 388 U.S. 14, 18 (1967); Malloy v.
Hogan, 378 U.S. 1 (1964); Stromberg v. California, 283
U.S. 359, 368 (1931). In Benton v. Maryland, 395 U.S. 784
(1969), the Supreme Court held that the Fifth Amendment
prohibition against double jeopardy applies to the states.
Nevertheless, each U.S. state has long been considered to have its
own sovereignty, which it shares with the U.S. federal government,
see U.S. Const. amend. X; thus, the question of whether
more than one state can punish the same individual for the
same set of actions was left open.
In 1981, the defendant, Larry Gene Heath,
traveled from Alabama to Georgia, where he met with two other
individuals whom he had hired to kill his wife Rebecca. Heath
v. Alabama, 474 U.S. at 83-84. They returned with him to his
house and, after he left the scene, they killed his wife. Id.
He was arrested later that year and, on February 10, 1982, plead
guilty in a Georgia court to the crime of murder, and was
sentenced to life imprisonment.
Subsequently, a grand jury in Alabama, his
state of residence, indicted him for the crime of murder during a
kidnaping, and he entered a plea of "autrefois convict and
former jeopardy under the Alabama and United States Constitutions,"
by which he stated that he was not eligible to be punished in
Alabama because a Georgia court had already convicted and
sentenced him for the same crime, and that the crime had, in fact,
not taken place in Alabama. Heath, 474 U.S. at 85.
The prosecutor argued, however, that because
the defendant's wife had been kidnaped in Alabama, the murder "may
be punished" there. Id. On January 12, 1983, a jury in the
Alabama court convicted Heath of "murder during a kidnaping in the
first degree," a capital offense, Id. He was sentenced to
death, and the Alabama Court of Criminal Appeals affirmed this
decision on direct appeal. Heath v. State, 455 So. 2d 898
(Ala. Crim. App. 1983). The Alabama Supreme Court, after granting
certiorari, affirmed the decision of the lower court as
well. Ex parte Heath, 455 So.2d 905 (Ala. 1984).
The United States Supreme Court then granted
certiorari to determine whether the conviction of Heath
violated the precedent that had been set by an earlier case,
Brown v. Ohio, 432 U.S. 161 (1977), in which the Court had
held that one cannot be punished consecutively for two different
offenses if the proof of both offenses is identical.
The decision of
Writing for a 7-2 majority, Justice O'Connor
ruled that "the dual sovereignty doctrine . . . compels the
conclusion that successive prosecutions by two States for the same
conduct are not barred by the Double Jeopardy Clause." 474 U.S. at
88. "The dual sovereignty doctrine," she wrote, "is founded on the
common-law conception of crime as an offense against the
sovereignty of the government. When a defendant in a single act
violates the 'peace and dignity' of two sovereigns by breaking the
laws of each, he has committed two distinct 'offences.' United
States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314
When somebody commits a crime against the laws
of two different states, then the question of whether the states
constitute two different sovereigns or just one is determined by
whether the state governments "draw their authority to punish the
offender from distinct sources of power." Heath, 474 U.S.
at 88. Answering the question, Justice O'Connor wrote that the "powers"
of state governments "to undertake criminal prosecutions derive
from separate and independent sources of power and authority
originally belonging to them before admission to the Union and
preserved to them by the Tenth Amendment." Id. at 89;
cf. U.S. v. Wheeler, 435 U.S. 313 (1978) (applying the
doctrine of dual sovereignty to the internal affairs of Native
American tribes). But see Nielsen v. Oregon, 212 U.S. 315
(1909) (distinguished from Heath by the majority, 474 U.S.
at 91, but cited by Justice Marshall in support of his dissent,
474 U.S. at 100).
The majority opinion concluded that by
violating the laws of two different states, the defendant
committed separate offenses against each state; for this reason,
the Constitutional prohibition on prosecuting or convicting
somebody "for the same offense" did not apply, and the Court
affirmed the defendant's conviction. 474 U.S. at 94.
Justice Marshall, in a minority opinion, sought
to distinguish between the long-held principle that the Fifth
Amendment does not prohibit the U.S. federal government and the
state governments from separately prosecuting the same individual
for the same illegal act, and the majority holding that two
separate state governments can do likewise.
In his dissent, he explains that the "dual
sovereignty" exception to the double jeopardy clause was designed
specifically "to accommodate complementary state and federal
concerns within our system of concurrent territorial jurisdictions."
Heath, 474 U.S. at 95 (Marshall & Brennan, JJ., dissenting).
Furthermore, even if the reasoning of the
majority was correct, the dual sovereignty doctrine must "not [be
used to] legitimate the collusion between Georgia and Alabama in
this case to ensure that petitioner is executed for his crime."
Id. Specifically, in this case the defendant plead guilty in
Georgia for the express purpose of avoiding the death penalty;
then, he was put on trial in Alabama by a jury in a town where the
crime was notorious, and where 75 of 82 prospective jurors were
aware that Heath had already plead guilty in Georgia. The judge,
rather than exclude the jurors who knew that the defendant had
already plead guilty, simply asked them if they would be able to "put
aside their knowledge of the prior guilty plea in order to give
petitioner a fair trial in Alabama." Id. at 96. It strains
credibility that the jurors could remain impartial in spite of
their knowledge of the guilty plea. Id. at 97. Furthermore,
given that the jurors had this knowledge, defense counsel "could
do little but attempt to elicit information from prosecution
witnesses tending to show that the crime was committed exclusively
in Georgia", id.; any argument tending to show actual
innocence would likely be disbelieved by the jury, in spite of the
fact that the guilty plea in Georgia was part of a plea bargain,
and some defendants, to avoid execution, may plead guilty without
actually being guilty. Cf. North Carolina v. Alford, 400
U.S. 25 (1970).
Justice Marshall also comments that it would,
without question, have been unconstitutional if the State of
Georgia had decided to re-prosecute Heath on a capital charge
because of its dissatisfaction with the life sentence that he had
already received. "The only difference between this case and such
a hypothetical volte-face by Georgia is that here Alabama,
not Georgia, was offended by the notion that petitioner might not
forfeit his life in punishment for his crime. The only reason the
Court gives for permitting Alabama to go forward is that Georgia
and Alabama are separate sovereigns." Heath, 474 U.S. at
97-98 (Marshall & Brennan, JJ., dissenting). He then goes on to
criticize the majority for its "restrictive" interpretation of the
word "offence." Id. at 98.
The only reasons why there needs to be a dual-sovereignty
exception to the Fifth Amendment prohibition of double jeopardy,
argues Marshall, are that
were a prosecution by a State, however
zealously pursued, allowed to preclude further prosecution by
the Federal Government for the same crime, an entire range of
national interests could be frustrated
Conversely, because "the States under our
federal system have the principal responsibility for defining
and prosecuting crimes," Abbate v. United States, supra, at 195,
it would be inappropriate - in the absence of a specific
congressional intent to pre-empt state action pursuant to the
Supremacy Clause - to allow a federal prosecution to preclude
state authorities from vindicating "the historic right and
obligation of the States to maintain peace and order within
their confines," Bartkus v. Illinois, supra, at 137.
Heath, 474 U.S. at 99 (Marshall &
Brennan, JJ., dissenting). No such "interests" need to be
protected when two different states are seeking to prosecute the
same offense, and so the underlying reasons behind the "dual-sovereignty"
exception to the prohibition against double jeopardy do not apply.
Indeed, in 1909 the Supreme Court had held that in case of an
incident that occurs on territory subject to the "'the one first
acquiring jurisdiction of the person may prosecute the offense,
and its judgment is a finality in both States, so that one
convicted or acquitted in the courts of the one State cannot be
prosecuted for the same offense in the courts of the other'
Nielsen v. Oregon, 212 U.S. 315, 320 (1909)," Id. at 100. (The
majority decision of the Court stated that the holding of
Nielsen v. Oregon was applicable only to a unique set of
circumstances. Heath, 474 U.S. at 91. In Nielsen v.
Oregon, 212 U.S. 315 (1909), two States jointly had
jurisdiction over the river that separates them from each other,
and one state had prosecuted somebody for an act that was
specifically permitted under the laws of the other, and the
Court reversed the conviction.)
Finally, Justice Marshall points out that "Even
where the power of two sovereigns to pursue separate prosecutions
for the same crime has been undisputed, this Court has barred both
governments from combining to do what each could not
constitutionally do on its own." 474 U.S. at 102. In this case,
the prosecutions in Alabama and Georgia were so inextricably
linked that it was as if they were acting together as a single
governmental entity. Furthermore, the interests of justice,
according to Marshall, were frustrated by having the defendant
plead guilty to a crime in Georgia to avoid the death penalty,
only to have the guilty plea prevent him from mounting a
meaningful defense to capital charges in Alabama. For these
reasons, in the interests "of fundamental fairness," Justice
Marshall voted against the majority decision.
Justice Brennan joined Justice Marshall in his
dissent, but also wrote a separate statement (in which Justice
Marshall joined), in which he indicated that the "interests"
mentioned by Justice Marshall, which would justify allowing
Federal and State prosecutions for the same illegal act, are not
of a nature that would justify any other exception to the rule
that one may not be prosecuted more than once for the same offense.
The defendant in this case subsequently filed a
petition for post-conviction relief in the Alabama state court
system, and for a Federal writ of habeas corpus, both of
which were denied, Heath v. State, 536 So. 2d 142 (Ala.
Crim. App. 1988); Heath v. Jones, 941 F.2d 1126 (11th Cir.
1991); he was executed on March 21, 1992.
The decision in
This decision is one of several that upholds
the idea that the Fifth Amendment does not forbid the U.S.
federal government and a state government, or the governments of
more than one state, from prosecuting the same individual
separately for the same illegal act.
U.S. Supreme Court
HEATH v. ALABAMA, 474 U.S. 82 (1985)
474 U.S. 82
HEATH v. ALABAMA
CERTIORARI TO THE SUPREME COURT OF ALABAMA
Argued October 9, 1985
Decided December 3, 1985
Petitioner hired two men
to kill his wife. In accordance with petitioner's plan, the men
kidnaped petitioner's wife from her home in Alabama. Her body was
later found on the side of a road in Georgia. Petitioner pleaded
guilty to "malice" murder in a Georgia trial court in exchange for
a sentence of life imprisonment. Subsequently, he was tried and
convicted of murder during a kidnaping and was sentenced to death
in an Alabama trial court, which rejected his claim of double
jeopardy. The Alabama Court of Criminal Appeals and the Alabama
Supreme Court affirmed the conviction.
1. This Court will not decide whether the
Alabama trial court had jurisdiction, where petitioner did not
claim lack of jurisdiction in his petition to the Alabama
Supreme Court but raised the claim for the first time in his
petition to this Court. P. 87.
2. Under the dual sovereignty doctrine,
successive prosecutions by two States for the same conduct are
not barred by the Double Jeopardy Clause of the Fifth Amendment,
and, hence, Alabama was not barred from trying petitioner. Pp.
(a) The dual sovereignty doctrine provides
that when a defendant in a single act violates the "peace and
dignity" of two sovereigns by breaking the laws of each, he has
committed two distinct "offences" for double jeopardy purposes.
In applying the doctrine, the crucial determination is whether
the two entities that seek successively to prosecute a defendant
for the same course of conduct can be termed separate sovereigns.
This determination turns on whether the prosecuting entities'
powers to undertake criminal prosecutions derive from separate
and independent sources. It has been uniformly held that the
States are separate sovereigns with respect to the Federal
Government because each State's power to prosecute derives from
its inherent sovereignty, preserved to it by the Tenth Amendment,
and not from the Federal Government. Given the distinct sources
of their powers to try a defendant, the States are no less
sovereign with respect to each other than they are with respect
to the Federal Government. Pp. 87-91.
(b) The application of the dual sovereignty
principle cannot be restricted to cases in which two prosecuting
sovereigns can demonstrate that allowing only one sovereign to
exercise jurisdiction over the defendant will interfere with the
second sovereign's unvindicated "interests." If the prosecuting
entities are separate sovereigns, the circumstances of the case
and the specific "interests" of each are irrelevant. Pp. 91-92.
(c) The suggestion that the dual sovereignty
doctrine be overruled and replaced with a balancing of interests
approach is rejected. The Court's rationale for the doctrine is
not a fiction that can be disregarded in difficult cases; it
finds weighty support in the historical understanding and
political realities of the States' role in the federal system
and in the Double Jeopardy Clause itself. Pp. 92-93.
455 So.2d 905, affirmed.
O'CONNOR, J., delivered the opinion of the
Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL,
REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a
dissenting opinion, in which MARSHALL, J., joined, post, p. 94.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 95.
Ronald J. Allen argued the cause and filed
briefs for petitioner.
William D. Little, Assistant Attorney General
of Alabama, argued the cause for respondent. With him on the brief
was Charles A. Graddick, Attorney General.
JUSTICE O'CONNOR delivered the opinion of the
The question before the Court is whether the
Double Jeopardy Clause of the Fifth Amendment bars Alabama from
trying petitioner for the capital offense of murder during a
kidnaping after Georgia has convicted him of murder based on the
same homicide. In particular, this case presents the issue of the
applicability of the dual sovereignty doctrine to successive
prosecutions by two States.
In August 1981, petitioner, Larry Gene Heath,
hired Charles Owens and Gregory Lumpkin to kill his wife, Rebecca
Heath, who was then nine months pregnant, for a sum of $2,000. On
the morning of August 31, 1981, petitioner left the Heath
residence in Russell County, Alabama, to meet with Owens and
Lumpkin in Georgia, just over the Alabama border from the Heath
home. Petitioner led them back to the Heath residence, gave them
the keys to the Heaths' car and house, and left the premises in
his girlfriend's truck. Owens and Lumpkin then kidnaped Rebecca
Heath from her home. The Heath car, with Rebecca Heath's body
inside, was later found on the side of a road in Troup County,
Georgia. The cause of death was a gunshot wound in the head. The
estimated time of death and the distance from the Heath residence
to the spot where Rebecca Heath's body was found are consistent
with the theory that the murder took place in Georgia, and
respondent does not contend otherwise.
Georgia and Alabama authorities pursued dual
investigations in which they cooperated to some extent. On
September 4, 1981, petitioner was arrested by Georgia authorities.
Petitioner waived his Miranda rights and gave a full confession
admitting that he had arranged his wife's kidnaping and murder. In
November 1981, the grand jury of Troup County, Georgia, indicted
petitioner for the offense of "malice" murder under Ga. Code Ann.
Georgia then served petitioner with notice of its intention to
seek the death penalty, citing as the aggravating circumstance the
fact that the murder was "caused and directed" by petitioner.
Record 742. See Ga. Code Ann. 17-10-30(b)(6) (1982). On February
10, 1982, petitioner pleaded guilty to the Georgia murder charge
in exchange for a sentence of life imprisonment, which he
understood could involve his serving as few as seven years in
prison. See Record 495.
On May 5, 1982, the grand jury of Russell
County, Alabama, returned an indictment against petitioner for the
capital offense of murder during a kidnaping.
See Ala. Code 13A-5-40(a)(1) (1982). Before trial on this
indictment, petitioner entered pleas of autrefois convict and
former jeopardy under the Alabama and United States Constitutions,
arguing that his conviction and sentence in Georgia barred his
prosecution in Alabama for the same conduct. Petitioner also
entered a plea contesting the jurisdiction of the Alabama court on
the ground that the crime had occurred in Georgia.
After a hearing, the trial court rejected
petitioner's double jeopardy claims. It assumed, arguendo, that
the two prosecutions could not have been brought in succession by
one State but held that double jeopardy did not bar successive
prosecutions by two different States for the same act. See Record
776. The court postponed a ruling on petitioner's plea to
jurisdiction until the close of the State's case in chief. See id.,
At the close of the State's case, petitioner
argued that Alabama did not have jurisdiction under state law
because there had been no evidence of kidnaping and all the
evidence showed that Rebecca Heath was killed in Georgia. The
State responded that a kidnaping had been proved, and that under
Ala. Code 15-2-3 (1982), if a crime commences in Alabama it may be
punished in Alabama regardless of where the crime is consummated.
The court rejected both petitioner's jurisdictional plea and his
renewed double jeopardy claims. See Record 590.
On January 12, 1983, the Alabama jury convicted
petitioner of murder during a kidnaping in the first degree. After
a sentencing hearing, the jury recommended the death
penalty. Pursuant to Alabama law, a second sentencing hearing was
held before the trial judge. The judge accepted the jury's
recommendation, finding that the sole aggravating factor, that the
capital offense was "committed while the defendant was engaged in
the commission of a kidnapping," outweighed the sole mitigating
factor, that the "defendant was convicted of the murder of Rebecca
Heath in the Superior Court of Troup County, Georgia, . . . and
received a sentence of life imprisonment in that court." Id., at
718-720. See Ala. Code 13A-5-49(4), 13A-5-50(1982).
On appeal, the Alabama Court of Criminal
Appeals rejected petitioner's pleas of autrefois convict and
former jeopardy under the Alabama and United States Constitutions
and affirmed his conviction. 455 So.2d 898 (1983). Petitioner then
filed a petition for writ of certiorari with the Alabama Supreme
Court, stating the sole issue to be "whether or not the
prosecution in the State of Alabama constituted double jeopardy in
violation of the 5th Amendment of the United States Constitution."
App. 92. The court granted his petition, and unanimously affirmed
his conviction. Ex parte Heath, 455 So.2d 905 (1984)
The Alabama Supreme Court noted that "[p]rosecutions
under the laws of separate sovereigns do not improperly subject an
accused twice to prosecutions for the same offense," citing this
Court's cases applying the dual sovereignty doctrine. Id., at 906.
The court acknowledged that this Court has not considered the
applicability of the dual sovereignty doctrine to successive
prosecutions by different States. It reasoned, however, that "[i]f,
for double jeopardy purposes, Alabama is considered to be a
sovereign entity vis-a-vis the federal government then surely it
is a sovereign entity vis-a-vis the State of Georgia." Ibid.
Petitioner sought a writ of certiorari from
this Court, raising double jeopardy claims and claims based on
Alabama's exercise of jurisdiction. No due process objections were
asserted. We granted certiorari limited to the question whether
petitioner's Alabama conviction was barred by this Court's
decision in Brown v. Ohio, 432 U.S. 161 (1977), and requested the
parties to address the question of the applicability of the dual
sovereignty doctrine to successive prosecutions by two States. 470
U.S. 1026 (1985). For the reasons explained below, we affirm the
judgment of the Alabama Supreme Court.
Despite the fact that this Court did not grant
certiorari on the constitutional objection to Alabama's exercise
of jurisdiction, petitioner has continued to argue in this Court
his jurisdictional claim. See Tr. of Oral Arg. 11-22, 29-31; Brief
for Petitioner 15. We decline to decide the issue because
petitioner did not claim lack of jurisdiction in his petition to
the Alabama Supreme Court and he raised the claim for the first
time in his petition to this Court. Pet. for Cert. 4. Even if we
were not jurisdictionally barred from considering claims not
pressed or passed upon in the state court, as has sometimes been
stated, see, e. g., State Farm Mutual Automobile Ins. Co. v. Duel,
324 U.S. 154, 160 (1945); Crowell v. Randell, 10 Pet. 368, 392
(1836), the longstanding rule that this Court will not consider
such claims creates, at the least, a weighty presumption against
review. See, e. g., Illinois v. Gates, 462 U.S. 213, 218 -222
Successive prosecutions are barred by the Fifth
Amendment only if the two offenses for which the defendant is
prosecuted are the "same" for double jeopardy purposes. Respondent
does not contravene petitioner's contention that the offenses of "murder
during a kidnaping" and "malice murder," as construed by the
courts of Alabama and Georgia respectively, may be considered
greater and lesser offenses and, thus, the "same" offense under
Brown v. Ohio, supra, absent operation of the dual sovereignty
principle. See id., at 169; Illinois v. Vitale, 447 U.S. 410
(1980). We therefore assume, arguendo, that, had these offenses
arisen under the laws of one State and had petitioner been
separately prosecuted for both offenses in that State, the second
conviction would have been barred by the Double Jeopardy Clause.
The sole remaining question upon which we
granted certiorari is whether the dual sovereignty doctrine
permits successive prosecutions under the laws of different States
which otherwise would be held to "subject [the defendant] for the
same offence to be twice put in jeopardy." U.S. Const., Amdt. 5.
Although we have not previously so held, we believe the answer to
this query is inescapable. The dual sovereignty doctrine, as
originally articulated and consistently applied by this Court,
compels the conclusion that successive prosecutions by two States
for the same conduct are not barred by the Double Jeopardy Clause.
The dual sovereignty doctrine is founded on the
common law conception of crime as an offense against the
sovereignty of the government. When a defendant in a single act
violates the "peace and dignity" of two sovereigns by breaking the
laws of each, he has committed two distinct "offences." United
States v. Lanza, 260 U.S. 377, 382 (1922). As the Court explained
in Moore v. Illinois, 14 How. 13, 19 (1852), "[a]n offence, in its
legal signification, means the transgression of a law."
Consequently, when the same act transgresses the laws of two
sovereigns, "it cannot be truly averred that the offender has been
twice punished for the same offence; but only that by one act he
has committed two offences, for each of which he is justly
punishable." Id., at 20.
In applying the dual sovereignty doctrine, then,
the crucial determination is whether the two entities that seek
successively to prosecute a defendant for the same course of
conduct can be termed separate sovereigns. This determination
turns on whether the two entities draw their authority to punish
the offender from distinct sources of power. See, e. g., United
States v. Wheeler, 435 U.S. 313, 320 (1978); Waller v. Florida,
397 U.S. 387, 393 (1970); Puerto Rico v. Shell Co., 302 U.S. 253,
264 -265 (1937); Lanza, supra, at 382; Grafton v. United States,
206 U.S. 333, 354 -355 (1907). Thus, the Court has uniformly held
that the States are separate sovereigns with respect to the
Federal Government because each State's power to prosecute is
derived from its own "inherent sovereignty," not from the Federal
Government. Wheeler, supra, at 320, n. 14. See Abbate v. United
States, 359 U.S. 187, 193 -194 (1959) (collecting cases); Lanza,
supra. As stated in Lanza, supra, at 382:
"Each government in determining what shall be
an offense against its peace and dignity is exercising its own
sovereignty, not that of the other.
"It follows that an act denounced as a crime
by both national and state sovereignties is an offense against
the peace and dignity of both and may be punished by each."
See also Bartkus v. Illinois, 359 U.S. 121
(1959); Westfall v. United States, 274 U.S. 256, 258 (1927) (Holmes,
J.) (the proposition that the State and Federal Governments may
punish the same conduct "is too plain to need more than statement").
The States are no less sovereign with respect
to each other than they are with respect to the Federal Government.
Their powers to undertake criminal prosecutions derive from
separate and independent sources of power and authority originally
belonging to them before admission to the Union and preserved to
them by the Tenth Amendment. See Lanza, supra, at 382. The States
are equal to each other "in power, dignity and authority, each
competent to exert that residuum of sovereignty not delegated to
the United States by the Constitution itself." Coyle v. Oklahoma,
221 U.S. 559, 567 (1911). See Skiriotes v. Florida, 313 U.S. 69,
77 (1941). Thus, "[e]ach has the power, inherent in any sovereign,
independently to determine what shall be an offense against its
authority and to punish such offenses, and in doing so each `is
exercising its own sovereignty, not that of the other.'" Wheeler,
supra, at 320 (quoting Lanza, supra, at 382).
The cases in which the Court has applied the
dual sovereignty principle outside the realm of successive federal
and state prosecutions illustrate the soundness of this analysis.
United States v. Wheeler, supra, is particularly instructive
because there the Court expressly refused to find that only the
State and Federal Governments could be considered distinct
sovereigns with respect to each other for double jeopardy purposes,
stating that "so restrictive a view of [the dual sovereignty]
concept . . . would require disregard of the very words of the
Double Jeopardy Clause." Id., at 330. Instead, the Wheeler Court
reiterated the principle that the sovereignty of two prosecuting
entities for these purposes is determined by "the ultimate source
of the power under which the respective prosecutions were
undertaken." Id., at 320. On the basis of this reasoning, the
Court held that the Navajo Tribe, whose power to prosecute its
members for tribal offenses is derived from the Tribe's "primeval
sovereignty" rather than a delegation of federal authority, is an
independent sovereign from the Federal Government for purposes of
the dual sovereignty doctrine. Id., at 328.
In those instances where the Court has found
the dual sovereignty doctrine inapplicable, it has done so because
the two prosecuting entities did not derive their powers to
prosecute from independent sources of authority. Thus, the Court
has held that successive prosecutions by federal and territorial
courts are barred because such courts are "creations emanating
from the same sovereignty." Puerto Rico, 302 U.S., at 264 . See id.,
at 264-266. See also Grafton, supra (the Philippine Islands).
Similarly, municipalities that derive their power to try a
defendant from the same organic law that empowers the State to
prosecute are not separate sovereigns with respect to the State.
See, e. g., Waller, supra. These cases confirm that it is the
presence of independent sovereign authority to prosecute, not the
relation between States and the Federal Government in our
federalist system, that constitutes the basis for the dual
Petitioner argues that Nielsen v. Oregon, 212
U.S. 315 (1909), indicates, albeit in dicta, that where States
have concurrent jurisdiction over a criminal offense, the first
State to prosecute thereby bars prosecution by any other State. We
find that Nielsen is limited to its unusual facts and has
continuing relevance, if at all, only to questions of jurisdiction
between two entities deriving their concurrent jurisdiction from a
single source of authority. In Nielsen, the Court set aside a
conviction obtained by the State of Oregon against a resident of
the State of Washington for his operation of a purse net for fish
in the Columbia River pursuant to a valid license to do so from
the State of Washington. The Court noted:
"By the legislation of Congress the Columbia
River is made the common boundary between Oregon and Washington,
and to each of those States is given concurrent jurisdiction on
the waters of that river." Id., at 319.
"[T]he grant of concurrent jurisdiction may
bring up from time to time . . . some curious and difficult
questions, so we properly confine ourselves to the precise
question presented. . . . It is enough to decide, as we do, that
for an act done within the territorial limits of the State of
Washington under authority and license from that State one
cannot be prosecuted and punished by the State of Oregon." Id.,
It is obvious that the Nielsen Court did not
attempt to decide or even to consider the double jeopardy effect
of successive state prosecutions for offenses proscribed by both
States; the case, therefore, has no bearing on the issue of the
applicability of the dual sovereignty doctrine presented in this
Petitioner invites us to restrict the
applicability of the dual sovereignty principle to cases in which
two governmental entities, having concurrent jurisdiction and
pursuing quite different interests, can demonstrate that allowing
only one entity to exercise jurisdiction over the defendant will
interfere with the unvindicated interests of the second entity and
that multiple prosecutions therefore are necessary for the
satisfaction of the legitimate interests of both entities. This
balancing of interests approach, however, cannot be reconciled
with the dual sovereignty principle. This Court has plainly and
repeatedly stated that two identical offenses are not the "same
offence" within the meaning of the Double Jeopardy Clause if they
are prosecuted by different sovereigns. See, e. g., United States
v. Lanza, 260 U.S. 377 (1922) (same conduct, indistinguishable
statutes, same "interests"). If the States are separate sovereigns,
as they must be under the definition of sovereignty which the
Court consistently has employed, the circumstances of the case are
Petitioner, then, is asking the Court to
discard its sovereignty analysis and to substitute in its stead
his difficult and uncertain balancing of interests approach. The
Court has refused a similar request on at least one previous
occasion, see Abbate v. United States, 359 U.S. 187 (1959); id.,
at 196 (BRENNAN, J., separate opinion), and rightfully so. The
Court's express rationale for the dual sovereignty doctrine is not
simply a fiction that can be disregarded in difficult cases. It
finds weighty support in the historical understanding and
political realities of the States' role in the federal system and
in the words of the Double Jeopardy Clause itself, "nor shall any
person be subject for the same offence to be twice put in jeopardy
of life or limb." U.S. Const., Amdt. 5 (emphasis added). See
Wheeler, 435 U.S., at 330 .
It is axiomatic that "[i]n America, the powers
of sovereignty are divided between the government of the Union,
and those of the States. They are each sovereign, with respect to
the objects committed to it, and neither sovereign with respect to
the objects committed to the other." McCulloch v. Maryland, 4
Wheat. 316, 410 (1819). It is as well established that the States,
"as political communities, [are] distinct and sovereign, and
consequently foreign to each other." Bank of United States v.
Daniel, 12 Pet. 32, 54 (1838). See also Skiriotes v. Florida, 313
U.S., at 77 ; Coyle v. Oklahoma, 221 U.S., at 567 . The
Constitution leaves in the possession of each State "certain
exclusive and very important portions of sovereign power." The
Federalist No. 9, p. 55 (J. Cooke ed. 1961). Foremost among the
prerogatives of sovereignty is the power to create and enforce a
criminal code. See, e. g., Alfred L. Snapp & Son, Inc. v. Puerto
Rico ex rel. Barez, 458 U.S. 592, 601 (1982); McCulloch, supra, at
418. To deny a State its power to enforce its criminal laws
because another State has won the race to the courthouse "would be
a shocking and untoward deprivation of the historic right and
obligation of the States to maintain peace and order within their
confines." Bartkus, 359 U.S., at 137 .
Such a deprivation of a State's sovereign
powers cannot be justified by the assertion that under "interest
analysis" the State's legitimate penal interests will be satisfied
through a prosecution conducted by another State. A State's
interest in vindicating its sovereign authority through
enforcement of its laws by definition can never be satisfied by
another State's enforcement of its own laws. Just as the Federal
Government has the right to decide that a state prosecution has
not vindicated a violation of the "peace and dignity" of the
Federal Government, a State must be entitled to decide that a
prosecution by another State has not satisfied its legitimate
sovereign interest. In recognition of this fact, the Court
consistently has endorsed the principle that a single act
constitutes an "offence" against each sovereign whose laws are
violated by that act. The Court has always understood the words of
the Double Jeopardy Clause to reflect this fundamental principle,
and we see no reason why we should reconsider that understanding
The judgment of the Supreme Court of Alabama is
] The indictment read as follows:
"[The grand jurors] in the name and on behalf
of the citizens of Georgia, charge and accuse LARRY GENE HEATH
[et al.] with the offense of MURDER (26-1101); for that the said
LARRY GENE HEATH [et al.] on the date of August 31, 1981, in the
county aforesaid, did then and there unlawfully and with malice
aforethought cause the death of Rebecca McGuire Heath, a human
being, by shooting her with a gun, a deadly weapon." Record 740.
] The indictment stated:
"Larry Gene Heath did intentionally cause the
death of Rebecca Heath, by shooting her with a gun, and Larry
Gene Heath caused said death during Larry Gene Heath's abduction
of, or attempt to abduct, Rebecca Heath with intent to inflict
physical injury upon her, in violation of 13A-5-40(a)(1) of the
Code of Alabama 1975, as amended, against the peace and dignity
of the State of Alabama." Id., at 728.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL
I concur wholeheartedly in JUSTICE MARSHALL'S
dissent. I write separately only to clarify my views on the role
that "different interests" should play in determining whether two
prosecutions are "for the same offence" within the meaning of the
Double Jeopardy Clause.
In Abbate v. United States, 359 U.S. 187
(1959), in addition to arguing that the dual sovereignty doctrine
permitted successive state and federal prosecutions, the Federal
Government also urged that the federal prosecution was not barred
because the two prosecutions were not "for the same offense." The
Government's theory was that, because the federal and state
statutes involved had divergent specific purposes - the federal
law to protect communications and the state law to protect private
property - and thus promoted different "interests," the
prosecutions were really for different offenses.
I rejected this argument in a separate opinion.
Id., at 196-201. My concern was that "this reasoning would apply
equally if each of two successive federal prosecutions based on
the same acts was brought under a different federal statute, and
each statute was designed to protect a different federal interest."
Id., at 197 (emphasis in original). That result I found clearly
barred by the Fifth Amendment.
I adhere to the position I took in
Abbate, that the different purposes or interest served by specific
statutes cannot justify an exception to our established double
jeopardy law. However, I read JUSTICE MARSHALL'S dissent to use "interest"
analysis in another context. He employs it to demonstrate the
qualitative difference in the general nature of federal and state
interests and the qualitative similarity in the nature of States'
interest. JUSTICE MARSHALL'S use of this interest analysis
furthers, rather than undermines, the purposes of the Double
Jeopardy Clause. Based on this understanding, I join JUSTICE
] I illustrated how radical and
pernicious a revision in existing double jeopardy jurisprudence
the Government's theory might work by referring to In re Nielsen,
131 U.S. 176 (1889). Abbate v. United States, 359 U.S., at 201 .
In Nielsen, the defendant, a Mormon with more than one wife, had
been convicted of violating two separate congressional statutes
that applied to the Territory of Utah in two successive
prosecutions. In the first prosecution he was tried for and
convicted of cohabiting with more than one woman, in the second he
was tried for and convicted of adultery. The Court correctly held
that the second prosecution had unconstitutionally placed the
defendant twice in jeopardy for the same offense. Under the rule
the Government proposed in Abbate, however, the mere difference
between the interests in prohibiting multiple sexual partners and
in proscribing extramarital sexual relationships would have
permitted successive prosecutions.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN
Seizing upon the suggestion in past cases that
every "independent" sovereign government may prosecute violations
of its laws even when the defendant has already been tried for the
same crime in another jurisdiction, the Court today gives short
shrift to the policies underlying those precedents. The "dual
sovereignty" doctrine, heretofore used to permit federal and state
prosecutions for the same offense, was born of the need to
accommodate complementary state and federal concerns within our
system of concurrent territorial jurisdictions. It cannot justify
successive prosecutions by different States. Moreover, even were
the dual sovereignty doctrine to support successive state
prosecutions as a general matter, it simply could not legitimate
the collusion between Georgia and Alabama in this case to ensure
that petitioner is executed for his crime.
On August 31, 1981, the body of Rebecca Heath
was discovered in an abandoned car in Troup County, Georgia.
Because the deceased was a resident of Russell County, Alabama,
members of the Russell County Sheriff's Department immediately
joined Troup County authorities in investigating the causes and
agents of her death. Tr. 359. This cooperative effort proved
fruitful. On September 4, petitioner Larry Heath, the deceased's
husband, was arrested and brought to the Georgia State Patrol
barracks in Troup County, where he confessed to having hired other
men to murder his wife. Shortly thereafter, petitioner was
indicted by the grand jury of Troup County for malice murder. The
prosecution's notice to petitioner that it was seeking the death
penalty triggered the beginning of the Unified Appeals Procedure
that Georgia requires in capital cases. But while these pretrial
proceedings were still in progress, petitioner seized the
prosecution's offer of a life sentence in exchange for a guilty
plea. Upon entry of his plea in February 1982, petitioner was
sentenced in Troup County Superior Court to life imprisonment. His
stay in the custody of Georgia authorities proved short, however.
Three months later, a Russell County, Alabama, grand jury indicted
him for the capital offense of murdering Rebecca Heath during the
course of a kidnaping in the first degree.
The murder of Rebecca Heath must have been
quite noteworthy in Russell County, Alabama. By petitioner's count,
of the 82 prospective jurors questioned before trial during voir
dire, all but 7 stated that they were aware that petitioner had
pleaded guilty to the same crime in Georgia. Id., at 294. The voir
dire responses of almost all of the remaining 75 veniremen can
only be characterized as remarkable. When asked whether they could
put aside their knowledge of the prior guilty plea in order to
give petitioner a fair trial in Alabama, the vast majority
answered in the affirmative. See, e. g., id., at 110, 112-113,
134, 254. These answers satisfied the trial judge, who denied
petitioner's challenges for cause except as to those jurors who
explicitly admitted that the Georgia proceedings would probably
affect their assessment of petitioner's guilt.
With such a well-informed jury, the outcome of
the trial was surely a foregone conclusion. Defense counsel could
do little but attempt to elicit information from prosecution
witnesses tending to show that the crime was committed exclusively
in Georgia. The court having rejected petitioner's constitutional
and jurisdictional claims, the defense was left to spend most of
its summation arguing that Rebecca Heath may not actually have
been kidnaped from Alabama before she was murdered and that
petitioner was already being punished for ordering that murder.
Petitioner was convicted and, after sentencing hearings, was
condemned to die. The conviction and sentence were upheld by the
Alabama Court of Criminal Appeals, 455 So.2d 898 (1983), and the
Alabama Supreme Court. Ex parte Heath, 455 So.2d 905 (1984).
Had the Georgia authorities suddenly become
dissatisfied with the life sentence petitioner received in their
courts and reindicted petitioner in order to seek the death
penalty once again, that indictment would without question be
barred by the Double Jeopardy Clause of the Fifth Amendment, as
applied to the States by the Fourteenth Amendment, Benton v.
Maryland, 395 U.S. 784 (1969). Whether the second indictment
repeated the charge of malice murder or instead charged murder in
the course of a kidnaping, it would surely, under any reasonable
constitutional standard, offend the bar to successive prosecutions
for the same offense. See Brown v. Ohio, 432 U.S. 161, 166 (1977);
id., at 170 (BRENNAN, J., concurring).
The only difference between this case and such
a hypothetical volte-face by Georgia is that here Alabama, not
Georgia, was offended by the notion that petitioner might not
forfeit his life in punishment for his crime. The only reason the
Court gives for permitting Alabama to go forward is that Georgia
and Alabama are separate sovereigns.
The dual sovereignty theory posits that where
the same act offends the laws of two sovereigns, "it cannot be
truly averred that the offender has been twice punished for the
same offence; but only that by one act he has committed two
offences, for each of which he is justly punishable." Moore v.
Illinois, 14 How. 13, 20 (1852). Therefore, "prosecutions under
the laws of separate sovereigns do not, in the language of the
Fifth Amendment, `subject [the defendant] for the same offence to
be twice put in jeopardy.'" United States v. Wheeler, 435 U.S.
313, 317 (1978). Mindful of the admonitions of Justice Black, we
should recognize this exegesis of the Clause as, at best, a useful
fiction and, at worst, a dangerous one. See Bartkus v. Illinois,
359 U.S. 121, 158 (1959) (Black, J., dissenting). No evidence has
ever been adduced to indicate that the Framers intended the word "offence"
to have so restrictive a meaning.
This strained reading of the Double Jeopardy
Clause has survived and indeed flourished in this Court's cases
not because of any inherent plausibility, but because it provides
reassuring interpretivist support for a rule that accommodates the
unique nature of our federal system. Before this rule is extended
to cover a new class of cases, the reasons for its creation should
therefore be made clear.
Under the constitutional scheme, the Federal
Government has been given the exclusive power to vindicate certain
of our Nation's sovereign interests, leaving the States to
exercise complementary authority over matters of more local
concern. The respective spheres of the Federal Government and the
States may overlap at times, and even where they do not, different
interests may be implicated by a single act. See, e. g., Abbate v.
United States, 359 U.S. 187 (1959) (conspiracy to dynamite
telephone company facilities entails both destruction of property
and disruption of federal communications network). Yet were a
prosecution by a State, however zealously pursued, allowed to
preclude further prosecution by the Federal Government for the
same crime, an entire range of national interests could be
frustrated. The importance of those federal interests has thus
quite properly been permitted to trump a defendant's interest in
avoiding successive prosecutions or multiple punishments for the
same crime. See Screws v. United States, 325 U.S. 91, 108 -110,
and n. 10 (1945) (plurality opinion). Conversely, because "the
States under our federal system have the principal responsibility
for defining and prosecuting crimes," Abbate v. United States,
supra, at 195, it would be inappropriate - in the absence of a
specific congressional intent to pre-empt state action pursuant to
the Supremacy Clause - to allow a federal prosecution to preclude
state authorities from vindicating "the historic right and
obligation of the States to maintain peace and order within their
confines," Bartkus v. Illinois, supra, at 137.
The complementary nature of the sovereignty
exercised by the Federal Government and the States places upon a
defendant burdens commensurate with concomitant privileges. Past
cases have recognized that the special ordeal suffered by a
defendant prosecuted by both federal and state authorities is the
price of living in a federal system, the cost of dual citizenship.
Every citizen, the Court has noted, "owes allegiance to the two
departments, so to speak, and within their respective spheres must
pay the penalties which each exacts for disobedience to its laws.
In return, he can demand protection from each within its own
jurisdiction." United States v. Cruikshank, 92 U.S. 542, 551
(1876). See Moore v. Illinois, supra, at 20 ("Every citizen . . .
may be said to owe allegiance to two sovereigns, and may be liable
to punishment for an infraction of the laws of either").
Because all but one of the cases upholding the
dual sovereignty doctrine have involved the unique relationship
between the Federal Government and the States,
the question whether a similar rule
should exempt successive prosecutions by two different States from
the command of the Double Jeopardy Clause is one for which this
Court's precedents provide all too little illumination. Only once
before has the Court explicitly considered competing state
prosecutorial interests. In that case, it observed that where an
act is prohibited by the laws of two States with concurrent
jurisdiction over the locus of the offense
"the one first acquiring jurisdiction of the
person may prosecute the offense, and its judgment is a finality
in both States, so that one convicted or acquitted in the courts
of the one State cannot be prosecuted for the same offense in
the courts of the other." Nielsen v. Oregon, 212 U.S. 315, 320
Where two States seek to prosecute the same
defendant for the same crime in two separate proceedings, the
justifications found in the federal-state context for an exemption
from double jeopardy constraints simply do not hold. Although the
two States may have opted for different policies within their
assigned territorial jurisdictions, the sovereign concerns with
whose vindication each State has been charged are identical. Thus,
in contrast to the federal-state context, barring the second
prosecution would still permit one government to act upon the
broad range of sovereign concerns that have been reserved to the
States by the Constitution. The compelling need in the federal-state
context to subordinate double jeopardy concerns is thus
considerably diminished in cases involving successive prosecutions
by different States. Moreover, from the defendant's perspective,
the burden of successive prosecutions cannot be justified as the
quid pro quo of dual citizenship.
To be sure, a refusal to extend the dual
sovereignty rule to state-state prosecutions would preclude the
State that has lost the "race to the courthouse" from vindicating
legitimate policies distinct from those underlying its sister
State's prosecution. But as yet, I am not persuaded that a State's
desire to further a particular policy should be permitted to
deprive a defendant of his constitutionally protected right not to
be brought to bar more than once to answer essentially the same
Having expressed my doubts as to the Court's
ill-considered resolution of the dual sovereignty question in this
case, I must confess that my quarrel with the Court's disposition
of this case is based less upon how this question was resolved
than upon the fact that it was considered at all. Although, in
granting Heath's petition for certiorari, this Court ordered the
parties to focus upon the dual sovereignty issue, I believe the
Court errs in refusing to consider the fundamental unfairness of
the process by which petitioner stands condemned to die.
Even where the power of two sovereigns to
pursue separate prosecutions for the same crime has been
undisputed, this Court has barred both governments from combining
to do together what each could not constitutionally do on its own.
See Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); Elkins v.
United States, 364 U.S. 206 (1960).
And just as the Constitution bars
one sovereign from facilitating another's prosecution by
delivering testimony coerced under promise of immunity or evidence
illegally seized, I believe that it prohibits two sovereigns from
combining forces to ensure that a defendant receives only the
trappings of criminal process as he is sped along to execution.
While no one can doubt the propriety of two
States cooperating to bring a criminal to justice, the cooperation
between Georgia and Alabama in this case went far beyond their
initial joint investigation. Georgia's efforts to secure
petitioner's execution did not end with its acceptance of his
guilty plea. Its law enforcement officials went on to play leading
roles as prosecution witnesses in the Alabama trial. Indeed, had
the Alabama trial judge not restricted the State to one assisting
officer at the prosecution's table during trial, a Georgia officer
would have shared the honors with an Alabama officer. Tr. 298.
Although the record does not reveal the precise nature of the
assurances made by Georgia authorities that induced petitioner to
plead guilty in the first proceeding against him, I cannot believe
he would have done so had he been aware that the officials whose
forbearance he bought in Georgia with his plea would merely
continue their efforts to secure his death in another jurisdiction.
Cf. Santobello v. New York, 404 U.S. 257, 262 (1971).
Even before the Fourteenth Amendment was held
to incorporate the protections of the Double Jeopardy Clause, four
Members of this Court registered their outrage at "an instance of
the prosecution being allowed to harass the accused with repeated
trials and convictions on the same evidence, until it achieve[d]
its desired result of a capital verdict." Ciucci v. Illinois, 356
U.S. 571, 573 (1958). Such "relentless prosecutions," they
asserted, constituted "an unseemly and oppressive use of a
criminal trial that violates the concept of due process contained
in the Fourteenth Amendment, whatever its ultimate scope is taken
to be." Id., at 575. The only differences between the facts in
Ciucci and those in this case are that here the relentless effort
was a cooperative one between two States and that petitioner
sought to avoid trial by pleading guilty. Whether viewed as a
violation of the Double Jeopardy Clause or simply as an affront to
the due process guarantee of fundamental fairness, Alabama's
prosecution of petitioner cannot survive constitutional scrutiny.
I therefore must dissent.
] It is curious to note how
reluctant the Court has always been to ascertain the intent of the
Framers in this area. The furthest the Court has ever progressed
on such an inquiry was to note: "It has not been deemed relevant
to discussion of our problem to consider dubious English
precedents concerning the effect of foreign criminal judgments on
the ability of English courts to try charges arising out of the
same conduct . . . ." Bartkus v. Illinois, 359 U.S., at 128 , n.
9. But see id., at 156 (Black, J., dissenting); M. Friedland,
Double Jeopardy 360-364 (1969).
] United States v. Wheeler, 435 U.S.
313 (1978), where the Court upheld successive prosecutions by
Federal Government and Navajo tribal authorities, merely
recognizes an analogous relationship between two governments with
complementary concerns. While the Court noted that "Congress has
plenary authority to legislate for the Indian tribes in all
matters, including their form of government," id., at 319,
Congress has in fact wisely refrained from interfering in this
sensitive area. The relationship between federal and tribal
authorities is thus in this respect analogous to that between the
Federal Government and the States.
] To be sure, Murphy, which bars a
State from compelling a witness to give testimony that might be
used against him in a federal prosecution, and Elkins, which bars
the introduction in a federal prosecution of evidence illegally
seized by state officers, do not necessarily undermine the basis
of the rule allowing successive state and federal prosecutions. It
is one thing to bar a sovereign from using certain evidence and
quite another to bar it from prosecuting altogether. But these
cases can be read to suggest that despite the independent
sovereign status of the Federal and State Governments, courts
should not be blind to the impact of combined federal-state law
enforcement on an accused's constitutional rights. See Note,
Double Prosecution by State and Federal Governments: Another
Exercise in Federalism, 80 Harv. L. Rev. 1538, 1547 (1967).
Justice Harlan's belief that Murphy "abolished the `two
sovereignties' rule," Stevens v. Marks, 383 U.S. 234, 250 (1966) (Harlan,
J., concurring in part, dissenting in part), was thus well founded.
Larry Gene HEATH, Petitioner-Appellant,
Charlie JONES, Warden, Respondent-Appellee.
United States Court of Appeals,
Aug. 26, 1991.
Rehearing and Rehearing En Banc
Denied Oct. 25, 1991.
Appeal from the
United States District Court for the Middle District of Alabama.
Before JOHNSON, HATCHETT and
EDMONDSON, Circuit Judges.
JOHNSON, Circuit Judge:
The petitioner, Larry Gene
Heath, under a sentence of death, appeals the district court's
denial of his habeas corpus petition.
I. STATEMENT OF THE CASE
A. Background Facts
In August of
1981, Larry Gene Heath spoke with his brother, Jerry Heath, about
possibly hiring some men to kill his wife. Evidently, Larry Heath
was suspicious that his wife, who was then nine months pregnant,
was carrying the child of her former fiance with whom she
allegedly was having an ongoing affair. At the same time, Larry
Heath wanted to marry Denise Lambert. Despite the fact that Larry
Heath was already married, he gave Ms. Lambert an engagement ring
and ordered invitations printed for their impending wedding. Heath
allegedly decided to murder his wife, rather than seek a divorce,
because he wanted custody over his child and because his wife had
a large life insurance policy.
wanted his wife's death to appear to be an accident. Jerry Heath
allegedly put Larry in touch with Charles Owens and Gregory
Lumpkin who agreed to carry out the murder-for-hire. Larry Heath
gave the two men a $500 down payment, keys to his house, and
instructions that they were to drive his car with his wife in it
into a creek, making the death seem to be an automobile accident.
He then gave his fiancee, Denise Lambert, $1500 to give to the two
men after the murder was completed. Owens and Lumpkin allegedly
kidnapped Mrs. Heath from her Russell County, Alabama home on the
morning of August 31, 1981. Instead of staging an accident, the
two men drove her 50 miles to Troup County, Georgia where they
shot her in the head with a pistol. They then dumped her body in
the back seat of the car, placed a brick on the gas pedal, and
sent the car speeding off into the woods. Several hours later, a
lineman for a local utility company spotted the car and Mrs.
The Georgia and
the Alabama authorities cooperated closely in the investigation.
Four days later, the Georgia police arrested Heath and his
girlfriend Lambert. That night, Heath confessed to the crime and
implicated his brother and Owens and Lumpkin. Within the next few
weeks, Jerry Heath, Charles Owens and Gregory Lumpkin were
immediately dominated the local news. The news emphasized that Mrs.
Heath was nine months pregnant when she was murdered, that her
husband was motivated by the insurance money, and that he had an
illicit affair with Ms. Lambert. Moreover, the media portrayed Ms.
Lambert as a wealthy, carefree socialite who, while out on bail,
went on an alpine skiing vacation. Heath added to the media drama
by engaging in a custody battle in family court with his in-laws
over his child.
B. Procedural History
1. The Indictments and Trial
Following the return of the
indictment in Georgia, the Georgia prosecutor announced that he
would be seeking the death penalty in the trials of Larry Heath,
Owens and Lumpkin. In exchange for a life sentence, Heath pled
guilty in February of 1982.
Two months after Heath pled guilty in Georgia, the state of
Alabama indicted Heath on a charge of capital murder and sought
his extradition, which was quickly granted. A trial was held in
Russell County, Alabama in February of 1983. The jury returned a
conviction followed by a recommendation of death.
2. Direct and
appealed his conviction through the Alabama state courts to the
Supreme Court. Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88
L.Ed.2d 387 (1985). The only issue raised by Heath's appellate
counsel was his double jeopardy claim. This claim was rejected by
the Supreme Court on the basis of the dual sovereignty doctrine.
Justices Marshall and Brennan dissented
On February 20,
1986, Heath filed a petition for a writ of error coram nobis in
Alabama state court. Following an evidentiary hearing, the state
court denied the petition. This denial was affirmed on appeal.
Heath v. State, 536 So.2d 142 (Ala.Cr.App.), cert. denied, 536
So.2d 142 (Ala.1988).
On March 24,
1989, Heath filed this, his first, petition for a writ of habeas
corpus in the Middle District of Alabama. The district court
denied the petition, without a hearing, in August of 1989. A
timely notice of appeal was filed. Meanwhile, Heath filed in
district court a motion pursuant to Rule 60 of the Federal Rules
of Civil Procedure seeking relief from the judgment. This Court,
in response to the Rule 60 motion, ordered the appeal to be held
in abeyance and then later dismissed the appeal without prejudice.
district court granted the Rule 60 motion, allowing Heath to file
an amended petition. Heath moved for an evidentiary hearing on his
amended petition. The district court denied this request and then,
on July 24, 1990 denied the petition. Heath filed a timely notice
of appeal, bringing this case before this Court.
A. Ineffective Assistance of Counsel on Direct Appeal
A defendant has a right to
counsel to aid in the direct appeal of his or her criminal
conviction. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83
L.Ed.2d 821 (1985). This right to counsel is violated when
appellate counsel is ineffective. Id.; Alvord v. Wainwright, 725
F.2d 1282 (11th Cir.1984). This Circuit has applied the Supreme
Court's test for ineffective assistance at trial, see Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), to guide its analysis of ineffective assistance of
appellate counsel claims. See Orazio v. Dugger, 876 F.2d 1508
(11th Cir.1989). Therefore, Heath must show that his appellate
counsel's performance was deficient and that this performance
prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064. While Heath can demonstrate that his appellate counsel's
performance was deficient, Heath is unable to show that this
deficient performance prejudiced his defense.
1. The Performance Prong
Strickland held that in
evaluating whether the appellate counsel's performance was
deficient, counsel's performance must be evaluated for "reasonableness
under prevailing professional norms." Strickland, 466 U.S. at 688,
104 S.Ct. at 2065. Courts should presume effectiveness and should
avoid second-guessing with the benefit of hindsight. Id. at 689,
104 S.Ct. at 2065. Specifically, Strickland encouraged reviewing
courts to allow attorneys broad discretion to represent their
clients by pursuing their own strategy. However, the Court
realized that merely invoking the word "strategy" to explain
errors was insufficient since "particular decision[s] must be
directly assessed for reasonableness [in light of] all the
circumstances." Id. at 691, 104 S.Ct. at 2066.
The Supreme Court, on at least
two occasions, has had an opportunity to explain the parameters of
what constitutes a reasonable strategy for appellate advocates. In
Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983), the Court held that the Sixth Amendment does not require
appellate advocates to raise every non-frivolous issue. The Court
suggested that effective advocates "winnow out" weaker arguments
even though the weaker arguments may be meritorious. Id. at
751-52, 103 S.Ct. at 3313. The Court in Smith v. Murray, 477 U.S.
527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), held that an appellate
advocate who reviewed the entire record, thought about various
claims, and then chose to pursue thirteen claims on appeal had
furnished effective appellate assistance. The Court recognized
that even though a non-appealed issue might have been successful,
the appellate advocacy had to be judged in its entirety.
the case at bar, appellate counsel's performance was deficient.
Heath's attorney selected only one issue to appeal, the double
The argument section of his brief to the Court of Criminal Appeals
was only six pages long. The argument section of his subsequent
brief to the Alabama Supreme Court was only one page long. While
we are loath to encourage attorneys to file numerous claims merely
for the sake of filing claims, we also realize that in a capital
appeal the attorney must raise many issues in a timely fashion or
else the defendant may be procedurally barred from ever raising
those issues. We also note that the quality of the one claim that
was briefed was unreasonably deficient. Heath has provided
affidavits from four criminal appellate attorneys with expertise
in capital appeals who testified that his appellate counsel's
decision to rely on only one claim was below "prevailing
professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at
2065. All four attorneys stated that, had they supervised this
appeal, they would have forbidden the filing of these briefs. One
attorney stated that in Kentucky since 1976 the average capital
appeal has raised 34 issues and the brief has averaged 194 pages.
This is not a case where the
attorney made a strategic decision to winnow out his less
persuasive claims. Heath's attorney Roney, in his testimony during
the state collateral review, did not advance any reasonable
strategic reasons for raising only the double jeopardy claim.
While he focused on the double jeopardy claim to the exclusion of
other issues during the appeal, he admitted that even before the
trial, he thought the double jeopardy issue was a losing issue.
Furthermore, he explained that he did not bring the change of
venue/pretrial publicity claim on appeal because he thought that
Heath was guilty and that Heath would be found guilty wherever he
was tried. Evidently, Roney was not aware of the fact that his
client had a constitutional right to a fair trial regardless of
his client's guilt. We are not willing to characterize this
mistaken understanding of the law as a reasonable strategy.
The state argues that Heath's
appellate counsel's performance was reasonable because he was able
to convince the Supreme Court to grant certiorari. While the grant
of certiorari is impressive and indicates that the issue that
Heath's attorney selected is "an important question of federal law,"
Rules of the Supreme Court, Rule 10.1(c), this alone is not
dispositive. First, we note that Heath's original appellate
counsel, Roney, did not draw up the petition for certiorari. Heath
obtained Professor Allen, a professor from Northwestern University
School of Law, to pursue the certiorari petition after his appeal
in the Supreme Court of Alabama had failed. Second, the grant of
certiorari does not necessarily indicate that the position
advocated by Heath has any merit, only that it is an important
question. We are reluctant to conclude that the selection of an
important question of federal law, to the exclusion of other
issues, which was ultimately unsuccessful, is sufficient to redeem
an otherwise poor appellate performance.
2. The Prejudice Prong
While we conclude that Heath's
appellate counsel's performance was deficient, we cannot conclude
that Heath is able to show any prejudice from this poor
performance. A petitioner has satisfied the prejudice prong of
Strickland when he or she can show that the appellate counsel's
performance was sufficiently deficient to deprive the defendant of
"a trial [or an appeal] whose result [was] reliable." Strickland,
466 U.S. at 687, 104 S.Ct. at 2064. In the context of an
ineffective assistance on appeal claim, this Court in Cross v.
United States, 893 F.2d 1287 (11th Cir.1990), held that in order
to determine prejudice the court must first perform "a review of
the merits of the [omitted or poorly presented] claim." Id. at
1290. If the Court finds that the neglected claim would have a
reasonable probability of success on appeal, then according to
Cross it is necessary to find "appellate counsel's performance
prejudicial because it affected the outcome of the appeal." Id.
With the legal standards for
prejudice in mind, Heath claims that his appellate counsel would
have been successful if he had raised two claims on appeal.
a. Denial of Fair and
Heath first alleges that he was denied a fair and impartial jury
due to extensive and highly prejudicial pretrial publicity.
In support of this allegation, Heath notes that local TV and
newspapers extensively covered the murder, the investigations, and
the assorted trials. Heath's allegations raise three related
claims: first, whether the trial court erred in not striking
individual jurors for cause; second, whether the publicity created
inherent prejudice; and third, whether the publicity caused actual
Heath argues that the trial court erred in failing to strike some
of the jurors for cause. A prospective juror must be removed for
cause if his or her views " 'would prevent or substantially impair
the performance of his [or her] duties as a juror.' " Wainwright
v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841
(1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521,
2526, 65 L.Ed.2d 581 (1980)). This Circuit has held that the
question of whether a juror was in fact biased is a question of
fact. See Bundy v. Dugger, 850 F.2d 1402, 1426 (11th Cir.1988). A
habeas petition will be granted for a state trial court's failure
to strike a juror for cause only when there is not fair support in
the record for the trial court's determination that the juror was
unbiased. Id. Heath discusses the fact that, of the eighty-one
veniremembers, he challenged sixty-seven of them for cause (including
all twelve of the eventual jurors), and the trial court granted
only eight of his challenges for cause.
However, even if a veniremember should have been struck for cause,
the Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct.
2273, 101 L.Ed.2d 80 (1988), held that there is no constitutional
violation where the biased veniremember does not eventually sit on
the jury. The Court in Ross held that a habeas petitioner's
constitutional rights were not violated when he was forced to
waste a peremptory challenge to remove a veniremember whom the
court should have removed for cause. Therefore, in this habeas
petition, Heath can raise only the trial court's denials of
Heath's challenges for cause of those veniremembers who eventually
sat on the jury.
After a close examination of the record, we conclude that there is
at least "fair support" in the record for the trial court's
decision to deny Heath's motions to strike each of the jurors for
cause. We are unable to find a single member of the jury whose
answers indicated that his or her prior knowledge or pre-dispositions
would impair his or her performance as a juror. While all of the
jurors had heard of the case in the media and several of them had
heard that Heath had pled guilty in Georgia to the same crime,
all of the jurors stated that they would be unbiased and that they
would follow the judge's instructions. Moreover, from the skeletal
of the questions and answers, we are hard pressed to find any
indication of any bias against Mr. Heath. In the Bundy case, we
found no error in a trial judge's refusal to strike for cause a
juror who had a negative impression about the defendant, might be
influenced by the defendant's lack of testimony, and was uncertain
if he or she had a fixed opinion about the defendant's guilt.
Bundy, 850 F.2d at 1428 (Juror No. 3). In that case, we focused on
the juror's promise to follow the judge's instructions and to
judge the evidence fairly. Id. In the case at hand, the jurors
made the same promises, and we are unable to find anything in the
record suggesting that the jurors did not intend to keep these
Second, Heath argues that he received an unfair trial because the
news media closely followed the crime, investigation, and trials
and published distorted and prejudicial information. Heath has
compiled over 100 newspaper articles and four videotapes of
television newscasts. He argues that the reports resulted in an
unfair trial because the articles focused on the sensational
aspects of the murder. Heath claims that many of the articles were
melodramatic. The articles, Heath alleges, focused on the fact
that Mrs. Heath was nine months pregnant when she was murdered.
The articles referred to the dead fetus by the name that Heath had
said he and his wife had agreed upon, and they called the murder a
double homicide. In one article, the Georgia prosecutors lamented
their inability to bring charges for the death of Mrs. Heath's
fetus due to the lack of a feticide statute.
Other articles referred to Heath as a "con man." His parents and
brother told the press that they thought he was possessed by the
devil. Heath claims the coverage became more prejudicial following
his plea of guilty. The parents of the victim told how they were
upset that Heath was not sentenced to death. Several letters to
the editor attacked the plea agreement. The public's reaction to
the plea agreement eventually forced the prosecutor and the judge
to make statements defending their actions. In the course of this
outcry against the plea agreement, Alabama indicted Heath and
sought his extradition for capital murder. The media reported that
the Alabama trial was necessary because of Georgia's failure to
seek the death penalty.
In addition, Heath complains of
several sideshows that were extensively covered in the media.
First, he notes that the Troup County, Georgia family court held
open hearings in the custody battle between his parents and his
in-laws over his son and again in the later fight to strip Heath
of all of his parental rights. Both family court hearings quickly
degenerated into mud slinging. Second, he notes the extensive
attention that was focused on Denise Lambert's award in a beauty
pageant, her reputed family connections and wealth, and the
judicial system's supposed lenient treatment of her.
Heath argues that this pretrial
publicity infected the venire and the jury. He notes that 93% of
the venire members (75 of 81) heard about the case, 70% of the
venire members (57 of 81) knew that Heath had entered a plea of
guilty or was convicted in Georgia. He also notes that 83% of the
actual jurors (10 of 12) knew, prior to being summoned for jury
duty, that Heath's guilt had been determined in Georgia. And,
Heath notes, the rest of the jurors were told of the guilty plea
during voir dire.
Heath argues that the pretrial
publicity deprived him of a fair trial under both an inherent
prejudice and an actual prejudice analysis. Inherent prejudice
occurs when the pretrial publicity "is sufficiently prejudicial
and inflammatory and the prejudicial pretrial publicity saturated
the community where the trials were held." Coleman v. Kemp, 778
F.2d 1487, 1490 (11th Cir.1985). Inherent prejudice rarely occurs.
Id. Our Circuit has treated the inherent prejudice analysis as a
mixed question of fact and law, Coleman, 778 F.2d at 1537 n. 17,
but we review the record cognizant of the fact that inherent
prejudice is rarely found. Id. Even if Heath cannot show inherent
prejudice, he may be able to prove that the pretrial publicity
resulted in an unfair trial if he is able to show actual prejudice.
Actual prejudice occurs when the prejudice actually enters the
jury box and affects the jurors. Coleman v. Kemp, 778 F.2d 1487,
1490 (11th Cir.1985). This Court should look at the totality of
circumstances to determine the extent of the prejudice. Id. The
petitioner cannot establish actual prejudice without proving that
at least one juror should have been dismissed for cause. Bundy v.
Dugger, 850 F.2d 1402, 1427 (11th Cir.1988).
Heath claims that he can
demonstrate inherent prejudice because he claims that he meets
both the inflammatory and the saturation requirements of the
inherent prejudice analysis. We disagree and hold that he has not
met either prong of the inherent prejudice analysis.
We are guided by some standards
to evaluate whether news coverage is allegedly inflammatory. For
instance, the courts have distinguished, and deemed acceptable,
any pretrial publicity which is purely factual in nature, see
Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847
(1984), from pretrial publicity which includes prejudicial or
inflammatory commentary. See Coleman, supra. The courts are also
extremely wary when the media saturates a town with highly
prejudicial evidence such as inadmissible evidence, see Coleman,
supra, or the defendant's confession, see Rideau v. Louisiana, 373
U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). This highly
prejudicial evidence increases the risk of a trial by the media to
the exclusion of a fair trial where the rules of evidence and
cross-examination govern the admission and weight of the evidence
that is ultimately placed before the jury. As we recently noted in
a related context, the Fourteenth Amendment incorporates the Sixth
Amendment right of a defendant to be tried in "a fair trial in
which the jury reaches its verdict based only on the evidence
subjected to the crucible of the adversarial process." Woods v.
Dugger, 923 F.2d 1454 (11th Cir.1991).
find that the record does not support Heath's claim that the news
coverage was inflammatory. The vast majority of the articles were
purely factual presentations of the news about the killing. In
addition, Heath is unable to cite any articles in which the media
discussed highly prejudicial evidence in a manner that raises
concerns about potential jurors being influenced by information
not subjected to the "crucible of the adversarial process." While
Heath is able to find several articles which are inflammatory (e.g.,
the articles about Heath being possessed by the devil) these
articles are not typical of the vast majority of the articles.
Moreover, Heath's claims that the press expressed outrage at his
plea bargain and that the media later supported Alabama's later
prosecution are not an accurate reflection of the record. Despite
isolated letters-to-the-editor expressing outrage, the general
tone of the media's reporting is quite restrained.
We find against Heath for a
second, independent reason. Heath has not demonstrated that the
media coverage saturated the market. A petitioner must prove (1)
that a substantial number of the people in the relevant community
could have been exposed to some of the prejudicial media coverage,
and (2) that the effects of the media saturation continued until
the trial. We have, on at least one occasion, rejected an inherent
prejudice claim because of a failure of proof. See Mayola v.
Alabama, 623 F.2d 992 (5th Cir.1980) (holding that the record was
unclear how widely read the Birmingham News and the Post-Herald
were in Blount County, Alabama in 1962). Heath has met the first
portion of the saturation requirement. Heath has produced evidence
that Columbus, Georgia and Phenix City, Alabama are a single media
market and that the relevant television stations and local
newspapers cover the entire area. Heath has also produced evidence
that each of the major local media sources covered the murder and
ensuing investigation equally thoroughly. However, Heath has
failed to meet the second portion of the saturation requirement.
Courts have recognized that in certain limited circumstances, the
effect of inflammatory pretrial publicity may be lessened if the
media focuses on other news in the months prior to the trial. See
Patton v. Yount, supra. But see Coleman, supra (declining to apply
the "cooling off" rationale when there was evidence that the local
emotions continued to run deep and the "cooling off" period was
marred by intense publicity immediately before the trial). The
record in this case supports such a cooling off rationale. The
crime occurred on August 31, 1981 and Heath was arrested four days
later. In the next several weeks, the story was placed on the
front page of the two local papers nearly every day. Heath pled
guilty in February of 1982, and his co-defendants went to trial
during the spring. Throughout this period, the case seemed to
command the local news media's attention. In May of 1982, days
after the final trial finished in Georgia, Alabama brought charges
against Heath. The case stayed in the news until the end of May.
However, from June of 1982 until the trial began in February of
1983, the case received little or no attention in the news media.
On average, there were only one or two articles in the local
papers each month. Moreover, in the days prior to the trial, the
media mentioned the upcoming trial in only one or two short
articles. Therefore, in order for Heath to prevail on this claim,
he must show that the articles published prior to June of 1982
resulted in an unfair trial held eight months later. Heath is
unable to show that these articles, which were, for the most part,
not inflammatory, marred his trial sufficiently for us to conclude
that this is one of those extremely rare cases in which we should
find inherent prejudice.
Finally, Heath alleges that the
publicity created actual prejudice. He notes that a large number
of veniremembers heard about the crime and his plea agreement.
According to Patton v. Yount, however, the question is not whether
a juror remembered the case from the media. Patton, 467 U.S. at
1033, 104 S.Ct. at 2889. Rather, the Patton Court held that after
examining the voir dire, the court should determine whether the
jurors had fixed opinions to the extent that they were unable to
judge the defendant's guilt impartially and recommend an
appropriate sentence. Similarly, this Court in Bundy, supra,
recognized that seating of a juror by a state court over a
challenge for cause will be affirmed as long as there is fair
support in the record for the court's decision. As we have already
noted, all of the seated jurors denied having a fixed opinion as
to Heath's guilt and they all promised to follow the judge's
Therefore, under Cross, 893 F.2d
at 1290, we do not find appellate counsel's failure to bring this
claim on appeal prejudicial because the claim would not have been
successful if it were brought on appeal.
b. The Violation of the
Privilege Against Self Incrimination
During the Georgia trial of Owens and Lumpkin, the Georgia
district attorney called Heath to the stand.
Heath invoked his Fifth Amendment right not to testify. The
district attorney argued that Heath was not entitled to the
protection of the Fifth Amendment because he had already pled
guilty to the murder and Georgia was not going to bring any other
charges against him for this crime. Heath disagreed; he argued to
the court that he was entitled to the protection of the Fifth
Amendment because there was a possibility that Alabama might bring
charges against him for the same crime. During Heath's Alabama
trial, the district attorney, over a defense objection, asked
Officer Malueg, one of the investigating officers who was present
when Heath testified in Georgia, about Heath's testimony during
Owens' and Lumpkin's trial in Georgia. Officer Malueg testified
that Heath "had refused to testify based on the fact ... that
there was an implication that other charges might be filed at a
later time because of the fact that his wife was abducted from--and
taken from Alabama." In his closing argument to the jury, the
district attorney mentioned Officer Malueg's testimony in order to
prove that the kidnapping had occurred in Alabama.
We do not need to determine
whether Heath's Fifth Amendment rights were violated because it is
clear that any error was harmless beyond a reasonable doubt. Both
parties admit that Heath's testimony was relevant only to
establish that the kidnapping started in Heath's home in Russell
County, Alabama. We note that there is extensive evidence
supporting the state's contention that the kidnapping started in
Russell County. The most important piece of evidence was Heath's
extensive confession to Officer Malueg on the night of his arrest
during which he admitted that the kidnapping started in his home.
Moreover, some circumstantial evidence confirmed that the
kidnapping started in Heath's home. The investigating officers
found a crushed cigarette on Heath's kitchen floor, and Heath
admitted that neither he nor his wife smoked. Also, on the morning
of the kidnapping, two neighbors noticed Heath speaking with some
men in a car parked down the street from Heath's house. These men
were seated in a car that was seen later that morning speeding
away from the wrecked car containing Mrs. Heath's body.
Furthermore, the police found tire tracks leading up to the Heath
house, they found a door unlocked, they found a fan blowing in Mrs.
Heath's bedroom, and they found that Mrs. Heath had not worn some
jewelry that she customarily wore when she left the house. The
prosecutor, in his closing, emphasized each of these pieces of
evidence. In light of all this evidence, we conclude that the
error was harmless beyond a reasonable doubt. Because the error
was harmless, the Fifth Amendment claim would not have been
successful on appeal. We therefore hold that appellate counsel's
failure to raise this claim was not prejudicial.
B. Subject Matter
1. Procedural Bar
The Alabama Court of Criminal
Appeals, the last state court to issue an opinion, reviewing the
denial of the petition for a writ of error coram nobis, stated
that Heath should have raised his subject matter jurisdiction
claim on direct appeal. The court stated that this failure bars
review, but then stated "[n]evertheless, we hold that Alabama did
in fact have jurisdiction to prosecute this appellant." Heath v.
State, 536 So.2d 142, 143-44 (Ala.Crim.App.1988). The district
court below found that this holding creates a procedural bar.
Heath disagrees. Heath argues that the state court recognized that
a procedural bar existed, but the court chose to waive the bar and
proceed to the merits. Heath notes that the use of the word "nevertheless"
implies that "in spite of" the procedural bar, the court
intentionally reached the merits.
Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989), a state court mentioned a procedural bar and then
proceeded to the merits. In order to resolve the question of
whether the state court reached the merits or relied on the
procedural bar, the Supreme Court adopted the plain statement rule
set out in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77
L.Ed.2d 1201 (1983). Therefore, if a state court opinion is
ambiguous about which of two grounds it relied upon, the federal
courts must presume that the state court reached the merits.
Harris, 489 U.S. at 263, 109 S.Ct. at 263. The Court, however,
recognized that in some cases the state courts will discuss the
merits as an alternative holding. The Court held that, in those
cases, the federal courts should defer to the procedural bar. Id.
at 254 n. 10, 109 S.Ct. at 1044 n. 10. But a state court's
discussion of the merits is "an alternative holding" only if,
after reading the opinion as a whole, the federal court concludes
that the state court " 'clearly and expressly' state[d] that its
judgment rest[ed] on a state procedural bar." Id. at 263, 109 S.Ct.
at 1043. Applying the Harris test, we cannot conclude that the
state court "clearly and expressly" indicated that the merits were
an alternative holding, therefore we must presume that the state
court reached the merits.
2. The Merits
Heath argues that Alabama lacked
subject matter jurisdiction over this offense: Heath claims that
all the elements of the murder (a murderous act accompanied by a
contemporaneous intent to kill, see Alabama Code § 13A-6-2(a)(1)),
occurred in Georgia. The state argues that Heath was convicted of
the capital crime of kidnapping/murder which is not defined in
section 13A-6-2(a)(1) (murder), but at section 13A-5-40(a)(1)
(capital offenses). Under the state's theory Alabama properly had
jurisdiction because part of the kidnapping/murder crime occurred
At the outset a few things
appear clear. Heath admits that Alabama can obtain jurisdiction
over a kidnapping charge if the kidnapping began in Alabama, while
the state admits that Alabama cannot obtain jurisdiction for a
murder which occurs solely in another state. See Dolvin v. State,
391 So.2d 666, 674 (Ala.Crim.App.1979) (holding that murder is an
indivisible offense and therefore only one state can properly have
jurisdiction), aff'd, 391 So.2d 677 (Ala.1980).
There are two dimensions to this
jurisdictional question. First, we must determine whether the
state has created a murder/kidnapping crime. Second, assuming the
state has created such a crime, we must determine whether the
punishment of Heath for this crime violates traditional limits on
Heath argues that the state has
not created a crime of murder/kidnapping. Heath notes that both
kidnapping and murder are separate offenses and that they are
defined in the "Offenses Involving Danger to the Person" chapter
of Title 13A of the Alabama Code. Heath compares the definitions
of kidnapping and murder with the section of the "Punishments and
Sentences" chapter which permits the death penalty to be applied
to those who commit murder during a kidnapping. Heath concludes
that Alabama has only a crime of murder which becomes a capital
offense when the state can prove, at the sentencing hearing, that
the aggravating factor of kidnapping is present. Heath claims that
the mere presence of an aggravating factor is insufficient to
support subject matter jurisdiction.
a matter of Alabama state law, Heath's argument is meritless. The
Alabama Criminal Code specifies that "murder by the defendant
during a kidnapping" is a capital offense. See Ala.Code §
13A-5-40(a)(1). Heath's argument that the kidnapping is not an
offense and is merely an aggravating factor is incorrect because,
in Alabama, in death penalty cases the jury must first find the
defendant to be guilty of certain capital offenses (such as murder/kidnapping),
and then the defendant is sentenced during a sentencing proceeding
in which the sentencer weighs the aggravating factors against the
mitigating factors. See Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct.
2727, 86 L.Ed.2d 300 (1985). Furthermore, the Supreme Court of
Alabama has strongly implied that the capital offenses are indeed
separate offenses, despite their codification in the chapter on
Punishments and Sentences. See Ex Parte Arthur, 472 So.2d 665
(Ala.1985). In Alabama, the aggravating circumstance must be set
out in the indictment, id. at 667, and must be proved beyond a
reasonable doubt as a "statutory element of the crime" of capital
murder during the guilt phase. Id. Thus as a matter of Alabama
state law, kidnapping/murder is one offense and, as a matter of
state law, Alabama has jurisdiction.
Heath next argues that his
prosecution in Alabama for a murder in Georgia offends various due
process concepts which limit the territorial reach of state
criminal prosecutions. Heath notes that the Supreme Court has on
several occasions held that the "jurisdiction of a state is co-extensive
with its territory." Manchester v. Massachusetts, 139 U.S. 240,
264, 11 S.Ct. 559, 564, 35 L.Ed. 159 (1891).
Heath's focus on the question of
territorial borders obscures the nexus between this crime and the
jurisdiction of Alabama. The focus should be on Justice Holmes'
opinion in Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55
L.Ed. 735 (1911), and its progeny. Strassheim held that Michigan
properly obtained jurisdiction when the defendant never entered
the state but the crime had sufficient direct repercussions within
the state. The defendant in Strassheim attempted to bribe a
Michigan official who was in charge of making state purchases. The
Court held that when an individual's criminal acts directly
violate the peace, tranquility and laws of a state, the state may
prosecute that individual, even if the individual commits the act
in another jurisdiction. In the case at bar, a portion of the
crime of kidnapping/murder occurred in Alabama. It is undisputed
that this act directly violated the peace, tranquility, and laws
of Alabama. Under Strassheim the state has established a
sufficient nexus to satisfy any requirement of subject matter
C. Ineffective Assistance at
Finally, Heath argues that he received ineffective assistance of
counsel at trial.
In order to prevail on this claim, Heath must show that his trial
counsel's performance was deficient and that this deficiency
prejudiced his defense. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064. Heath claims that his trial counsel was
ineffective in both their pretrial preparations and guilt phase
defense of Heath. We conclude that his counsel's pretrial
preparations were deficient but that Heath is unable to show any
prejudice from this performance. We also conclude that Heath is
unable to show that his counsel's trial performance was either
deficient or prejudicial.
Heath alleges that his trial attorneys' performance during
pretrial was deficient. During the pretrial, Heath's counsel filed
eight motions, none of which were longer than two and a half pages.
Only the double jeopardy motion was supported by a brief. It was
five and a half pages long and it was the only pretrial motion or
brief to cite any legal authority. Heath also complains that
counsel should have attacked the Georgia guilty plea which
constrained possible defenses and that
when his lawyers moved for a change of venue they should have
filed at least some of the news articles with their motion. Heath
notes that his attorneys had the articles available prior to the
trial because Lambert's attorneys had assembled them for her trial.
Because the state does not contend that Heath's trial counsel's
performance during the pretrial was reasonable, we accept Heath's
allegation that their performance was deficient.
Heath also asserts that his counsel
was deficient during the guilt phase. Evidently before the trial,
Heath's lawyers moved to dismiss the case because of a double
jeopardy claim and in the alternative Heath's counsel moved to
submit the double jeopardy question to the jury. Both arguments
were rejected by the trial court. Nevertheless, in Heath's opening,
counsel argued the double jeopardy theory to the jury and told
them they would be instructed on double jeopardy by the judge.
Counsel began his opening by telling the jury that Heath was tried
The prosecutor then interjected
that Heath pled guilty. After a sidebar, counsel told the jury
that Heath had in fact pled guilty, that he was not supposed to be
in risk of the death penalty, and that the Alabama district
attorney was prosecuting him despite the plea. In his closing,
Heath's counsel discussed the history and the importance of the
double jeopardy clause of the Fifth Amendment.
Heath's counsel also admitted that Heath was involved in the
murder of his wife, that he had pled guilty in Georgia, and that
he was serving a life sentence in Georgia. Heath argues that this
excessive reliance on the double jeopardy clause was unreasonable.
find, however, that a more complete examination of the record
demonstrates the reasonableness of Heath's trial attorney's
tactics. Heath's two trial attorneys spent the bulk of their time
during the trial and during their closings putting the state to
its burden of proof on the question of whether the kidnapping
started in Russell County, Alabama. At closing, they reiterated
the fact that Mrs. Heath had intended to drive to Georgia on the
morning of her murder, that the body was found in Georgia, and
that all of the physical evidence suggested that she was shot in
Georgia just prior to the staged accident. Furthermore, Heath's
counsel emphasized that there was no evidence of a struggle in
Heath's home, that no neighbors saw Mrs. Heath being dragged out
of the house, and that the neighbors who did see Heath talking to
the men in a car on the morning of the murder did not see anything
that would prove a kidnapping occurred in Alabama.
We are unprepared to label
Heath's attorneys' performance below reasonable professional norms.
Heath's attorneys were faced with a difficult, if not impossible
task in defending Heath's innocence, and their strategy appears
reasonable. Heath's attorneys would have had a hard time
contesting the murder charge in light of the overwhelming physical
evidence and Heath's extensive confession.
Heath has not attempted to show
prejudice due to the ineffectiveness of counsel at pretrial. As
the state points out, Heath has not shown that any of the pretrial
motions would have succeeded if they were better prepared. Heath
has also failed to show any other pretrial motions which would
have succeeded if they were submitted. Moreover, after reviewing
all the articles and video tapes that Heath claims his trial
counsel should have submitted, we are unable to conclude that the
failure of the trial court to grant a change of venue constitutes
a constitutional error. Therefore, the failure to submit any
support with the motion does not raise a "reasonable possibility"
that, but for the ineffectiveness, the result of the motion would
have been different. Strickland v. Washington, 466 U.S. at 694,
104 S.Ct. at 2068.
Even assuming that Heath was
able to show that his attorneys' performance was deficient during
the guilt phase, he is unable to show prejudice resulting from
their actions. This case is similar to Magill v. Dugger, 824 F.2d
879 (11th Cir.1987). In Magill, trial counsel's performance was
much more deficient because the attorney in effect conceded his
client's guilt during his opening and closing arguments. This
Court, however, did not find prejudice due to this action. The
Magill court held that because of substantial evidence of guilt,
including the defendant's confession, it was "highly unlikely that
[counsel's] deficient performance affected the jury's verdict
during the guilt phase." Id. at 888.
We therefore AFFIRM the district
court's denial of the writ.
EDMONDSON, Circuit Judge,
concurring in part and concurring in the judgment:
I join in the result and in most
of what Judge Johnson has written. But I disagree with two points.
First, I cannot agree that the
quality of counsel's performance can be judged much by the length
of briefs or the number of issues raised. Especially in the death
penalty context, too many briefs are too long; and too many
lawyers raise too many issues. Effective lawyering involves the
ability to discern strong arguments from weak ones and the courage
to eliminate the unnecessary so that the necessary may be seen
most clearly. The Supreme Court--as today's court recognizes--has
never required counsel to raise every nonfrivolous argument to be
effective. See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661,
2667, 91 L.Ed.2d 434 (1986). That the custom in death penalty
cases is for lawyers to file long briefs with lots of issues means
little to me. This kind of "custom" does not define the standard
of objective reasonableness. See Gleason v. Title Guar. Co., 300
F.2d 813 (5th Cir.1962). While compliance with custom may
generally shield a lawyer from a valid claim of ineffectiveness,
noncompliance should not necessarily mean he is ineffective. Not
all customs are good ones, and customs can obstruct the creation
of better practices. Today's court disposes of the ineffective
assistance of counsel claims on lack of prejudice grounds. So,
what the court says about counsel's performance is dicta: language
inessential to determining the case. Still, I worry that some of
the dicta sends the wrong signal to lawyers.
Second, on the subject-matter
jurisdiction question (part II.B.1. of the court's opinion), I
think Alabama spoke plainly enough to raise a procedural bar to
federal review of the merits. The state court of appeals said this:
[A]lthough the appellant raised
this issue at trial, his failure to raise it on direct appeal will
now bar our review of this issue. Summers v. State, 366 So.2d 336
(Ala.Cr.App.1978), writ denied, 366 So.2d 346 (Ala.1979); Dobard
v. State, 455 So.2d 281 (Ala.Cr.App.1984); Dunkins v. State, 489
So.2d 603 (Ala.Cr.App.1985).
Nevertheless, we hold that
Alabama did in fact have jurisdiction to prosecute this appellant
for the capital offense of murder/kidnapping.
Heath v. State, 536 So.2d 142,
The phrase "will now bar our
review" seems plain to me. The state appellate court's discussion
of the merits on the question of jurisdiction is just an
alternative holding. See Harris v. Reed, 489 U.S. 255, 264, 109
S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989) (state court's
alternative holding on merits does not negate procedural bar as
adequate and independent state ground as long as state court
explicitly invokes state procedural bar rule as separate basis for
The police also arrested Sanders Williams who
initially agreed to kill Mrs. Heath and who accepted a down
payment but later backed out of the conspiracy
In Georgia, Sanders Williams and Denise Lambert
pled guilty to the conspiracy count and each was sentenced to ten
years in prison. Heath's brother initially pled guilty but then
withdrew his plea, went to trial, and was acquitted. Owens and
Lumpkin were convicted of murder. The prosecutor withdrew his
request for the death penalty. The court, therefore, sentenced
them to life imprisonment
Alabama also indicted Owens, Lumpkin, Jerry
Heath and Denise Lambert. Jerry Heath and Lambert both pled guilty
and accepted 10 year sentences for conspiracy. Lumpkin was
convicted and given a life sentence. Owens was sentenced to death,
but the conviction was reversed on appeal. Owens v. State, 531
So.2d 22 (Ala.Cr.App.1987). In lieu of a retrial, Owens pled
guilty and accepted a life sentence
Heath claims that his appellate counsel was
ineffective for failing to raise two claims on appeal: a pre-trial
publicity claim and a Fifth Amendment claim. Heath also brings
these two claims as independent constitutional violations. Alabama
state courts have not deemed the ineffective assistance of
appellate counsel claim procedurally barred and the state does not
argue that it is procedurally barred. Therefore, we will reach the
merits of the ineffective assistance of appellate counsel claim.
In reaching the ineffective assistance of appellate counsel claim
we must discuss the two underlying claims regardless of whether
they are barred from our review as independent constitutional
violations because we need to determine whether or not Heath's
appellate counsel was ineffective for failing to raise these
claims on appeal. The state, nevertheless, argues that the two
underlying claims are procedurally barred as independent
constitutional violations. Heath disagrees. Therefore, before
discussing each of the underlying claims we will determine whether
there is a procedural bar which prevents us from reaching the
merits of the claim as an independent violation
It should be noted that Heath's counsel could
have brought an interlocutory appeal of his double jeopardy claim.
See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d
651 (1977) (holding that the Double Jeopardy Clause allows
interlocutory appeals because part of the right not to be placed
in jeopardy twice is lost if the claim is not brought prior to
trial). Consequently, if his counsel felt that the claim was so
strong, he could have brought a claim prior to trial and he could
have thereby focused his appeal from the final judgment on other
In addition to our considering this claim in
the context of an ineffective assistance of counsel claim, Heath
argues that we can consider it as an independent constitutional
violation. The state argues that the claim is not properly
exhausted and would be procedurally barred if it were brought back
to the state courts. We, however, find that this claim was
properly exhausted. The claim was raised before the trial court
during the Alabama error coram nobis proceeding and the Alabama
Court of Criminal Appeals, the last state court to issue an
opinion, explicitly stated that it considered, and rejected, each
of the claims raised in the collateral review petition. The Court
of Criminal Appeals, moreover, adopted, and attached to its
opinion, the trial court opinion which discusses this claim. Heath
v. State, 536 So.2d 142 (Ala.Cr.App.), cert. denied, 536 So.2d 142
Such numbers create a false impression. Early
into the voir dire, Heath's lawyers fell into a pattern of asking
four or five questions (did you hear about this case in the media,
did you hear that Heath pled guilty in Georgia, can you be a fair
and impartial juror, and have you decided that Heath was guilty)
and then in every case where the veniremember stated that he or
she had heard of the case, Heath's lawyers moved to excuse the
individual for cause. In short, Heath's motions to excuse a juror
for cause quickly became a routine not necessarily tied to any
direct indications of bias
While we have stated that we are "hard pressed
to think of anything more damning to an accused than information
that a jury had previously convicted him for the crime charged,"
United States v. Williams, 568 F.2d 464 (5th Cir.1978), we cannot
automatically conclude that, in this habeas case, the jury's
awareness of Heath's plea of guilt resulted in an unfair trial.
Williams can be distinguished because it arose on direct appeal,
and the petitioner in a habeas case must show a constitutional
violation which requires a higher showing than that required in a
case arising on direct appeal. Before we can conclude in a habeas
case that a juror's knowledge of guilt is sufficient to mandate a
retrial, we must conclude that the juror's knowledge " 'would
prevent or substantially impair the performance of his [or her]
duties as a juror.' " Wainwright v. Witt, 469 U.S. 412, 424, 105
S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448
U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). We
might be prepared to make such a finding in a case where the
juror's knowledge of a prior conviction is buttressed by other
indications of actual bias. However, in the case at hand, we find
no evidence in the record to suggest that the jurors in question
were in fact biased. Based on the record, we can conclude only
that the jurors had read the local papers and were aware that
Heath had pled guilty in Georgia
Heath acknowledges the fact that the record of
the voir dire is distinctly unhelpful in this appeal because the
questions asked by his attorneys were neither searching nor very
effective. By way of example, a typical question was "[now] you
wouldn't be biased at all?" Heath attempts to raise as error the
fact that, early in the voir dire, the trial court sustained the
state's objection to Heath's question into what a veniremember had
read about the case. The state objected to the form of the
question because it called for a narrative. Even if the ruling was
incorrect and unfairly narrowed Heath's voir dire, it is unclear
that the trial court's ruling rises to the level of a
constitutional error. Cf. Mu'min v. Virginia, --- U.S. ----, 111
S.Ct. 1899, 114 L.Ed.2d 493 (1991) (holding that it is not a
violation of the Sixth Amendment or the Due Process Clause for a
judge to refuse to inquire into the venire's knowledge of the
specific contents of pre-trial publicity). Furthermore, the trial
court ruled against only the form of the question; at other points
in the voir dire, the trial court allowed more specific questions
into the veniremember's knowledge and allowed other general
questions when they were phrased correctly. The failure of the
voir dire to elicit proof that the venire harbored alleged biases
against Heath cannot be attributed to this ruling by the trial
The Georgia legislature quickly passed such a
statute in the aftermath of the Heath murder. See Ga.Code Ann. §
For example, one editorial actually came out
against the Alabama prosecution because the paper thought it
violated the double jeopardy clause and basic principles of
In addition to our considering this claim in
the context of an ineffective assistance of counsel claim, Heath
argues that we can consider it as an independent constitutional
violation. The state argues that this claim was neither presented
nor exhausted in state court and currently would be procedurally
barred if Heath attempted to return to state court to litigate it.
Heath claims that we should not imply a procedural bar because
Alabama law is not consistently applied. Because this claim is
easily resolved on the merits, we do not address the state's
contentions that the claim is procedurally barred. See Kennedy v.
Dugger, 933 F.2d 905, 910 n. 5 (11th Cir.1991)
The Supreme Court's recent opinion in Coleman
v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (June
24, 1991), does not change this analysis. Coleman altered Harris
to require the federal habeas courts to first make a finding that
the state court's procedural bar analysis either is interwoven
with an analysis of federal law or the state court primarily
relied on federal law before applying Michigan v. Long's plain
statement rule. Since the state court's finding, in the case at
bar, was interwoven with federal law, we can properly use the
plain statement rule
See Ala.Code § 15-2-3. ("When the commission of
an offense commenced in the State of Alabama is consummated
without the boundaries of the state, the offender is liable to
punishment therefor in Alabama.")
Heath had the assistance of two
lawyers at trial
Heath claims that he pled guilty in Georgia on
the condition that he not receive the death penalty. Heath claims
that the plea was not entered knowingly because his counsel did
not investigate Alabama's intentions regarding the death penalty.
However, it is unclear that had Heath's Alabama counsel attacked
the Georgia guilty plea such an attack would have been successful.
During this habeas proceeding, the state placed into evidence
affidavits from the Georgia prosecutors who swear that, during the
plea negotiations, they did not make any representations about
potential criminal penalties in Alabama. Moreover, we note that
the voluntariness of the plea depends only upon whether the
defendant is aware of the direct consequences of the plea. Mabry
v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d
437 (1984). For example, the use of a plea as a sentencing
enhancement for another crime is considered a collateral, not a
direct, consequence. Wright v. United States, 624 F.2d 557 (5th
Cir.1980). Also, the Seventh Circuit has held that the use of a
plea to establish an element of a crime in a separate prosecution
is also a collateral consequence. United States v. Jordan, 870
F.2d 1310 (7th Cir.1989). Finally, while the existence of this
plea could have constrained possible defenses, there is nothing in
the record to demonstrate that the plea actually played any role
in constraining Heath's defenses
The prosecution rebutted the double jeopardy
argument by pointing out that the judge had already ruled on it
and would not be instructing the jury on double jeopardy
Heath's counsel also noted that the cigarette
butt found in Heath's kitchen was irrelevant because no one tied
the cigarette to the alleged kidnappers. They also argued that the
fact the fan was left on is irrelevant because there was no air
conditioning in the house, and the crime occurred in Alabama in