Argued: April 4, 1995
Decided: October 3, 1995

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges. 

OPINION

WILLIAMS, Circuit Judge:

On the morning of February 9, 1985, Fred H. Kornahrens, III, killed his ex-wife, her elderly father, and her boyfriend's ten-year-old son. After a full trial, a jury found Kornahrens guilty of capital murder and sentenced him to death.

Kornahrens never contested the fact that he committed these gruesome crimes. Instead, in all stages of this proceeding, he has challenged the degree of his guilt and debated the proper penalty for his crimes. After exhausting all avenues of state-court relief, Kornahrens sought a writ of habeas corpus from the United States District Court for the District of South Carolina pursuant to 28 U.S.C. § 2254 (1988).

Upon a thorough review of Kornahrens's claims by a magistrate judge, the district court denied his petition. Like the other courts before us, we, too, believe that Kornahrens's trial and sentencing were free from constitutional defect, and, therefore, affirm the district court's denial of the writ.

I.

Although the facts of this case have been set out in prior proceedings, they bear repeating for the purposes of this appeal. Upon returning home from a night out, Kornahrens's ex-wife, Patti Jo Kornahrens (Patti), her boyfriend John Avant, and Avant's ten-year-old son, Jason, encountered an enraged Kornahrens waiting for them at the doorstep. Kornahrens was armed with a handgun and bayonet.

While Avant remained in the car to gather belongings and to awaken his sleeping son, Kornahrens confronted Patti as she exited from the passenger side. Kornahrens looked at Avant, pointed the gun at him, and said, "I'm going to kill you." (PCR App. 801). When Patti called out Avant's name, Kornahrens shot her in the chest. This wound was not fatal. Patti's father, Harry Wilkerson, lived in a house trailer next door. Patti ran inside, calling to Wilkerson for help.

Kornahrens followed her into the trailer, encountered Wilkerson, and fatally stabbed him. Still pursuing Patti, Kornahrens followed her back outside. After catching up with her near the car, Kornahrens stabbed Patti to death. Meanwhile, Avant ran into his and Patti's home next to Wilkerson's trailer to get and load his gun. As he was doing so, he began to hear screams from the outside. He quickly left the house, only to see Kornahrens drag Jason across the yard, pin him down and crouch over him. Then, Kornahrens dragged Jason out of sight. At this point, Avant ran to a neighbor's trailer and called the police.

When the police arrived, all three bodies were gone. Kornahrens was arrested the next day when an officer spotted him walking down a road near Wilkerson's trailer. The bodies of Patti, Wilkerson, and Jason were discovered two days later when Kornahrens, after retaining counsel, drew police a map showing the location of their common grave. Stabbing was the immediate cause of death for all three victims; Jason was found with his hands and feet bound with packing tape.

On June 10, 1985, Kornahrens was indicted for the triple murder of Patti, Wilkerson, and Jason.

In November 1985, a trial was held and on November 16th Kornahrens was convicted of all three murders. Two days later, on November 18th, a sentencing hearing was held, and the jury returned a recommendation of death, which the trial judge accepted.

Kornahrens appealed to the South Carolina Supreme Court, which affirmed his conviction and sentence. State v. Kornahrens , 350 S.E.2d 180 (S.C. 1986). The United States Supreme Court then denied his petition for certiorari. Kornahrens v. South Carolina , (1987).

Next, Kornahrens filed a state petition for post-conviction relief, which the state trial court denied on August 29, 1988. The South Carolina Supreme Court denied discretionary review, and, on May 13, 1991, the Supreme Court denied Kornahrens's second petition for certiorari. 500 U.S. 929 (1991).

On September 19, 1991, Kornahrens filed this federal habeas action. The case was assigned to a magistrate judge, who denied Kornahrens's request for an evidentiary hearing.

On March 31, 1994, the magistrate judge entered a 97-page report and recommendation which the district court adopted after plenary review three months later. Kornahrens timely appealed.

In his petition to this Court, Kornahrens does not raise all of the issues pressed in the court below, focussing instead on seven arguments. Specifically, Kornahrens argues that during the guilt phase: (1) the trial court erred in refusing to give the jury an instruction on the lesser included offense of voluntary manslaughter; and (2) the trial court erroneously defined reasonable doubt as "substantial doubt."

Kornahrens also asserts that during the sentencing phase: (3) the evidence was insufficient to show that Patti and Jason were murdered in the commission of a kidnapping, pursuant to South Carolina's statutory aggravating circumstance, see S.C. Code Ann. § 16-3-20(C)(a)(1)(c) (Law. Co-op. 1994); (4) the jurors likely misconstrued the unanimity requirement; (5) the trial court erroneously refused to instruct the jury on the mitigating circumstance of lack of a significant criminal history; and (6) he is entitled to a new trial because state law unconstitutionally prevented him from introducing evidence of his future adaptability to prison.

Finally, Kornahrens's seventh claim is that his sentencing counsel was constitutionally ineffective. We address each of these issues in turn; however, because the district court found that Kornahrens procedurally defaulted issues 2, 4, and 5, we reserve our discussion of these claims for last.

II.

During the guilt phase of Kornahrens's trial, the court refused to give the jury an instruction on voluntary manslaughter. Kornahrens argues that pursuant to Beck v. Alabama , 447 U.S. 625 (1980), and its progeny, the trial court was required to give such an instruction and its failure to do so constitutes reversible error. We disagree.

"A defendant is not entitled to have the jury instructed as to lesser degrees of the crime simply because the crime charged is murder." Briley v. Bass , 742 F.2d 155, 164 (4th Cir.) (analyzing Virginia's lesser included offense doctrine under the Due Process Clause), cert. denied , 469 U.S. 893 (1984). Instead, "the Circuit and the Supreme Courts agree that lesser included offense instructions are not required where . . . there is no support for such instructions in the evidence." Id. at 165.

Under the rule announced in Beck , "due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Hopper v. Evans , (1982). Therefore, if a defendant has a particular theory of defense, he is constitutionally entitled to an instruction on that theory if the evidence supports it.

The elements of voluntary manslaughter are well known: Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. "Sudden heat of passion upon sufficient legal provocation" that mitigates a felonious killing to manslaughter must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called "an uncontrollable impulse to do violence." State v. Lowry , 434 S.E.2d 272, 274 (S.C. 1993) (citations omitted).

In Lowry , for instance, Lowry and the decedent were in the midst of a heated confrontation when the decedent menacingly approached Lowry with arms outspread. The South Carolina Supreme Court held that this gesture may have provoked an already anxious Lowry to fire his weapon. Id. at 273-74.

In short, to have received a voluntary manslaughter charge on all three counts, Kornahrens must have proffered evidence showing not only that he had no malicious intent to kill his victims, but also that Patti, Wilkerson, and Jason committed some sort of act that would provoke a rational person to kill another.

Kornahrens argues that he introduced the following evidence showing that the murders could be considered voluntary manslaughter: (1) Kornahrens testified that he did not go to Patti's house to hurt anyone; (2) When Patti showed up, Kornahrens panicked when she said "Freddie's here; get the gun!"; (3) Patti pushed her father on to Kornahrens, and her father started to attack Kornahrens; (4) Kornahrens's response was to attack both of them out of self defense; and (5) Kornahrens thought that Jason Avant was actually John Avant attacking him, so he turned quickly and stabbed him.

Additionally, Kornahrens argues that Patti and John Avant engaged in a campaign to destroy him mentally and financially. This constant badgering, Kornahrens claims, also added to the provocation. If believed, Kornahrens contends that this evidence would show that the murders were in the heat of passion upon a sufficient legal provocation to support a voluntary manslaughter charge.

Notwithstanding Kornahrens's assertions, we do not see how any of the victims' actions can be construed as provocation to murder. At most, Patti and her father reacted to the presence of an armed assailant. Kornahrens claims that he showed up at Patti's home solely to "talk" with her and Avant -- even though he was armed with a bayonet and a handgun. We are confident that under any set of circumstances her reaction to that sight -- "Freddie's here; get the gun!" -- would not have been a sufficient provocation for Kornahrens to attack and kill her.

Furthermore, Wilkerson only attacked Kornahrens after Kornahrens had shot Patti in the chest and chased her into Wilkerson's home. Wilkerson's attack -- in self defense and in the defense of his daughter -- cannot be said to have provoked Kornahrens to violence, especially considering that Kornahrens attacked Wilkerson after he had already shot Patti. Nothing Wilkerson did pushed Kornahrens over the edge into the heat of passion; if anything, Kornahrens was already in the heat of passion by the time he encountered Wilkerson.

Finally, we do not see any legal provocation for Kornahrens to have attacked Jason. Even if Kornahrens initially thought that Jason was actually Avant, there was no justification for the multiple knife wounds that he inflicted on the boy. Perhaps his theory would be more plausible if Kornahrens rapidly inflicted one or two wounds before realizing that he was attacking Jason, a ten-year-old boy, instead of Avant, a fully grown man; under these circumstances, however, Kornahrens stabbed Jason multiple times and Jason showed numerous defensive wounds.

Therefore, we conclude that the trial court properly denied Kornahrens an instruction on voluntary manslaughter because, very simply, he presented no evidence to support it.

III.

Kornahrens also challenges three aspects of his sentencing and claims that each error entitles him to another trial for resentencing.

First, he argues that the evidence was not sufficient to show that he murdered Patti and Jason "in the commission of a kidnapping," S.C. Code Ann. § 16-3-20(C)(a)(1)(c) (Law. Co-op. 1994).

Next, he contends that he is entitled to present evidence of his future adaptability to prison pursuant to Skipper v. South Carolina , 476 U.S. 1 (1986), decided six months after his sentencing. Finally, he raises several allegations of ineffective assistance of counsel during the sentencing phase of his trial. We address each in turn.

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