McCorquodale - Oct 21, 1987
On the evening of January 16, 1974, the 17 year old
and her friend Pamela were in the area of Peachtree and 10th Street
in the City of Atlanta known as 'The Strip.'
While in a restaurant they were accosted by a man
named Leroy who invited them to a bar for a beer. While in the bar
the two girls engaged in a conversation with two black men. Leroy
left the bar and the girls later went to another bar on 'The Strip.'
Leroy met them at this bar, approached their table
and accused Donna and Pamela of stealing $40 or $50 from him and
giving the money to a black pimp. At this point they were joined by
the defendant McCorquodale and his girlfriend, Bonnie Succaw (now
Johnson). At the request of Leroy and McCorquodale the girls were
taken to a bathroom and searched by Bonnie and a friend. They found
McCorquodale and Leroy then summoned a cab, and
joined by Bonnie, they took Donna with them to Bonnie's apartment.
They arrived at Bonnie's apartment shortly after midnight and found
Bonnie's roommate, Linda, and Bonnie's three year old daughter
McCorquodale had lived some eight months prior to his
time in the apartment with Bonnie. Linda joined them in the living
room of Bonnie's apartment and at this point there was some
conversation between McCorquodale and Leroy about Donna being a
'nigger lover' and that she needed to be taught a lesson.
McCorquodale, after telling Donna how pretty she was,
raised his fist and hit her across the face. When she stood up, he
grabbed her by her blouse, ripping it off. He then proceeded to
remove her bra and tied her hands behind her back with a nylon
McCorquodale then removed his belt, which was
fastened with a rather large buckle, and repeatedly struck Donna
across the back with the buckle end of the belt. He then took off
all her clothing and then bound her mouth with tape and a washcloth.
Leroy then kicked Donna and she fell to the floor.
McCorquodale took his cigarette and burned
navel. He then bit one of Donna's nipples and she began to bleed. He
asked for a razor blade and then sliced the other nipple. He then
called for a box of salt and poured it into the wounds he had made
on her breasts.
At this point Linda, who was eight months pregnant,
became ill and went into the bedroom and closed the door.
McCorquodale then lit a candle and proceeded to drip hot wax over
Donna's body. He held the candle about 1/2 inch from Donna's vagina
and dripped the hot wax into this part of her body. He then used a
pair of surgical scissors
to cut around
While bleeding from her nose and vagina, Leroy forced
to perform oral sex on him while McCorquodale
her. Then Leroy
while McCorquodale forced his penis into
McCorquodale then found a hard plastic bottle which
was about 5 inches in height and placed an antiseptic solution
within it, forcing this bottle into Donna's vagina and squirted the
solution into her.
then permitted to go to the bathroom to 'get cleaned up.' While she
was in the bathroom, McCorquodale secured a piece of nylon rope and
told Bonnie and her roommate that he was going 'to kill the girl.'
He hid in a closet across the hall from the bathroom
and when Donna came out of the bathroom he wrapped the nylon cord
around her neck. Donna screamed, 'My God, you're killing me.'
As McCorquodale tried to strangle her, the cord cut
into his hands and Donna fell to the floor. He fell on top of her
and began to strangle her with his bare hands. He removed his hands
began to have convulsions. He again strangled her and then pulled
her head up and forward to break her neck.
He covered her lifeless body with a sheet and
departed the apartment to search for a means of transporting her
body from the scene. By this time, it was approximately 6:00 a.m. on
the morning of January 17.
McCorquodale soon returned to the apartment and asked
Bonnie for her trunk and Leroy and McCorquodale tried to place
Donna's body in the trunk. Finding that the body was too large for
McCorquodale proceeded to break Donna's arms and legs by holding
them upright while he stomped on them with his foot. Donna's body
was then placed in the trunk and the trunk was placed in the closet
behind the curtains.
McCorquodale and Leroy then went to sleep on the
couch in the living room for the greater portion of the day, leaving
the apartment sometime during the afternoon.
Because a strong odor began to emanate from the body,
and her efforts to mask the smell with deodorant spray had been
unsuccessful, Linda called Bonnie to request that McCorquodale
remove the trunk from the apartment.
Shortly after 8:00 p.m. McCorquodale arrived at the
apartment with a person named Larry. As they attempted to move the
trunk from the closet, blood began spilling from the trunk on to the
living room floor. McCorquodale placed a towel under the trunk to
absorb the blood as they carried the trunk to Larry's car.
When McCorquodale and Larry returned to the apartment
they told Linda that the body had been dumped out of the trunk into
a road and that the trunk was placed under some boxes in a 'Dempsey
Dumpster.' Donna's body was found about half a mile off Highway No.
42 in Clayton County.
Slayer Executed in Georgia;
High Court Rejects Appeals
The New York Times
September 22, 1987
Timothy W. McCorquodale was electrocuted this evening for the 1974
torture and murder of a runaway teen-age girl, a murder he said he
could not remember.
Mr. McCorquodale, the fifth man to be executed in
Georgia this year, was pronounced dead at 7:23 P.M., according to a
prison system spokesman, John Siler.
The 35-year-old slayer was convicted of raping,
torturing and then breaking the neck of a 17-year-old girl he had
seen talking to a black man. Both the slayer and the victim were
A request for clemency from the state Board of
Pardons and Paroles was rejected today at mid-afternoon, shortly
after the United States Supreme Court, on a 6-to-2 vote, turned down
one of the two appeals before it. High Court Rejects Appeal
Later today, by the same vote, the Court rejected
Mr. McCorquodale's final appeal, a challenge to the refusal Sunday
of the United States Court of Appeals for the 11th Circuit to stay
Mr. McCorquodale was the 93d prisoner to be put
to death in the United States since the Supreme Court cleared the
way for states to resume capital punishment in 1976.
He was sentenced to die for the slaying of Donna
Marie Dixon, a runaway from Newport News, Va., who had gone to ''the
Strip,'' a rough section of midtown Atlanta, which several years
before had housed the city's hippie community.
The parole board chairman, Wayne Snow, said that
on Friday the panel received a letter from Mr. McCorquodale in which
''he does show considerable remorse for what he's done.''
Nevertheless, Mr. Snow said the board had viewed
the killing as ''one of the most heinous crimes committed in the
state'' and had decided against commuting the death sentence for
that reason. Circumstances of Crime
Witnesses at his trial said Mr. McCorquodale
became enraged when he saw Miss Dixon speaking with a black man in a
bar near the Strip.
According to witnesses, Mr. McCorquodale and
another man took Miss Dixon to the apartment of a girlfriend of Mr.
McCorquodale's, where they raped her, tortured her for two hours and
tried to strangle her with a nylon cord. When that failed, evidence
showed, Mr. McCorquodale broke her neck with his hands.
Her nude body, stuffed into a box, was dumped in
suburban Clayton County.
The case prosecutor, Joe Drolet, said the other
man involved in the killing was never found.
In 1976, a state psychiatrist reported that Mr.
McCorquodale could not remember Miss Dixon's murder. ''I cannot
believe that I would do them things,'' he was quoted as saying. ''I
just don't believe I could do it.''
Supreme Court of Georgia
233 Ga. 369
211 S.E.2.d 577
MCCORQUODALE v. THE STATE.
The state presented evidence
to establish the following facts:
On the evening of January 16,
1974, Donna, the victim, a 17-year-old girl, and
her friend, Pamela Pharris, were in the area of
Peachtree and 10th Street in the City of Atlanta
known as "The Strip."
While in a restaurant they
were accosted by a man named Leroy who invited
them to a bar for a beer. While in the bar the
two girls engaged in a conversation with two
black men. Leroy left the bar and the girls
later went to another bar on "The Strip."
Leroy met them at this bar,
approached their table and accused Donna and
Pamela of stealing $40 or $50 from him and
giving the money to a black pimp. At this point
they were joined by the defendant McCorquodale
and his girlfriend, Bonnie Succaw (now Johnson).
At the request of Leroy and
McCorquodale the girls were taken to a bathroom
and searched by Bonnie and a friend. They found
no money. McCorquodale and Leroy then summoned a
cab, and joined by Bonnie, they took Donna with
them to Bonnie's apartment.
They arrived at Bonnie's
apartment shortly after midnight and found
Bonnie's roommate, Linda, and Bonnie's three-year-old
daughter asleep. The appellant McCorquodale had
lived some eight months prior to this time in
the apartment with Bonnie.
Linda joined them in the
living room of Bonnie's apartment and at this
point there was some conversation between
McCorquodale and Leroy about Donna being a "nigger
lover" and that she needed to be taught a lesson.
The appellant, after telling
Donna how pretty she was, raised his fist and
hit her across the face. When she stood up, he
grabbed her by her blouse, ripping it off. He
then proceeded to remove her bra and tied her
hands behind her back with a nylon stocking.
McCorquodale then removed his
belt, which was fastened with a rather large
buckle, and repeatedly struck Donna across the
back with the buckle end of the belt. He then
took off all her clothing and then bound her
mouth with tape and a washcloth. Leroy then
kicked Donna and she fell to the floor.
McCorquodale took his
cigarette and burned the victim on the breasts,
the thigh, and the navel. He then bit one of
Donna's nipples and she began to bleed. He asked
for a razor blade and then sliced the other
nipple. He then called for a box of salt and
poured it into the wounds he had made on her
At this point Linda, who was
eight months pregnant, became ill and went into
the bedroom and closed the door. McCorquodale
then lit a candle and proceeded to drip hot wax
over Donna's body. He held the candle about 1/2
inch from Donna's vagina and dripped the hot wax
into this part of her body. He then used a pair
of surgical scissors to cut around the victim's
While bleeding from her nose
and vagina, Leroy forced the victim to perform
oral sex on him while McCorquodale had
intercourse with her. Then Leroy had intercourse
with the victim while McCorquodale forced his
penis into the victim's mouth.
McCorquodale then found a
hard plastic bottle which was about 5 inches in
height and placed an antiseptic solution within
it, forcing this bottle into Donna's vagina and
squirted the solution into her. The victim was
then permitted to go to the bathroom to "get
cleaned up." While she was in the bathroom,
McCorquodale secured a piece of nylon rope and
told Bonnie and her roommate that he was going "to
kill the girl."
He hid in a closet across the
hall from the bathroom and when Donna came out
of the bathroom he wrapped the nylon cord around
her neck. Donna screamed, "My God, you're
killing me." As McCorquodale tried to strangle
her, the cord cut into his hands and Donna fell
to the floor. He fell on top of her and began to
strangle her with his bare hands. He removed his
hands and the victim began to have convulsions.
He again strangled her and
then pulled her head up and forward to break her
neck. He covered her lifeless body with a sheet
and departed the apartment to search for a means
of transporting her body from the scene. By this
time, it was approximately 6:00 a.m. on the
morning of January 17.
McCorquodale soon returned to
the apartment and asked Bonnie for her trunk and
Leroy and McCorquodale tried to place Donna's
body in the trunk. Finding that the body was too
large for the trunk McCorquodale proceeded to
break Donna's arms and legs by holding then
upright while he stomped on them with his foot.
Donna's body was then placed in the trunk and
the trunk was placed in the closet behind the
curtains. McCorquodale and Leroy then went to
sleep on the couch in the living room for the
greater portion of the day, leaving the
apartment sometime during the afternoon.
Because a strong odor began
to emanate from the body, and her efforts to
mask the smell with deodorant spray had been
unsuccessful, Linda called Bonnie to request
that McCorquodale remove the trunk from the
apartment. Shortly after 8:00 p.m. McCorquodale
arrived at the apartment with a person named
Larry. As they attempted to move the trunk from
the closet, blood began spilling from the trunk
onto the living room floor. McCorquodale placed
a towel under the trunk to absorb the blood as
they carried the trunk to Larry's car.
When McCorquodale and Larry
returned to the apartment they told Linda that
the body had been dumped out of the trunk into a
road and that the trunk was placed under some
boxes in a "Dempsey Dumpster." Donna's body was
found about half a mile off Highway No. 42 in
McCorquodale appeals to this
court alleging some twenty-six enumerations of
error, some of which are redundant and combined
1. No further recitation of
facts is necessary to establish that the general
grounds are without merit. The aggravating
circumstances found by the jury were "that the
offense of murder . . . was outrageously or
wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an
aggravated battery to the victim." Ga. L. 1973,
pp. 159, 163 (Code Ann. 27-2534.1(h7)). The
appellant argues that the aggravating
circumstances found by the jury were not
connected with the actual homicide in that the
victim did not protest the treatment and that
the torture, if any, did not lead to the death
in that there was a break between the
mistreatment and killing of the victim.
As we view the factual
setting the torture and killing were all one
uninterrupted night of horror, the macabre
affair ending with the appellant deliberately
killing the victim to cover the heinous and
senseless crimes committed upon her. The finding
of the jury was amply supported by the evidence
and the verdict is not contrary to law. The
trial court did not err in overruling the
appellant's motion for new trial.
2. In the absence of a
request the court did not err in failing to
charge the jury on voluntariness of a confession
which was introduced into evidence and read to
the jury following a full and complete Jackson-Denno
Appellant contends that his
confession was involuntary in that it was
induced by a detective's promise that he would
not be able to see his girlfriend, Bonnie, until
such time as he had made a confession. This
contention is disputed by the testimony of the
detective who stated that Bonnie was present in
the room when appellant requested to speak with
the detective privately. The detective also
testified that he did not promise appellant that
he could see his girlfriend only after giving
his statement. Code 38-411 provides: "To make a
confession admissible, it must have been made
voluntarily, without being induced by another,
by the slightest hope of benefit or remotest
fear of injury."
The record indicates that the
trial court held a full and complete hearing on
the issue of voluntariness of the confession,
meeting the requirements of Jackson v. Denno,
378 U. S. 368. After this hearing the judge
determined that the confession was voluntary and
admissible for the jury's consideration. His
determination is supported by a preponderance of
the evidence as required by High v. State,
233 Ga. 153.
In Thomas v. State,
233 Ga. 237, this
court held that "Under established Georgia law
there Is no necessity to give a charge on the
subject of the voluntariness of a confession
unless there is a specific request for it. Ivy
220 Ga. 699, 704 (141
SE2d 541); Harvey v. State,
216 Ga. 174, 177 (115 SE2d 345) (both
cases approved in Curry v. State,
230 Ga. 221 (196 SE2d 443))."
In the absence of a request
to charge or an objection to the court's
omission to charge the jury on voluntariness of
the confession, the trial court did not err.
Although there is no burden on defense counsel
in a criminal case to object to an instruction
as a condition precedent to enumerating it as
error, we note here that counsel in answer to an
inquiry by the court affirmatively stated that
his only objection related to the charge on
voluntary man slaughter. See Gearin v. State,
127 Ga. App. 811,
813 (195 SE2d 211) and Thompkins v. State,
126 Ga. App. 683,
684 (191 SE2d 555).
We also note that there was
ample evidence to support the conviction without
the confession, including the testimony of two
eyewitnesses to the crime. The Supreme Court of
the United States has recently held that "unless
there is a reasonable possibility that the
improperly admitted evidence contributed to the
conviction, reversal is not required." Schneble
v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31
LE2d 340) (1972). We do not believe that the
jury would have found the state's case
significantly less persuasive had the confession
3. Appellant urges that the
trial court erred in refusing to accept his
guilty plea and waiver of jury trial. Our
statute provides that "any person who has been
indicted for an offense punishable by death may
enter a plea of guilty at any time after his
indictment, and the judge of the superior court
having jurisdiction may, in his discretion,
during term time or vacation, sentence such
person to life imprisonment, or to any
punishment authorized by law for the offense
named in the indictment: Provided, however, that
the judge of the superior court must find one of
the statutory aggravating circumstances provided
in Section 27.2534.1 before imposing the death
penalty except in cases of treason or aircraft
hijacking." Code Ann. 27-2528.
A predecessor statute using
the same permissive term "may" was held to
authorize the judge in his discretion to so act
but not to require him to do so. Massey v.
220 Ga. 883 (142 SE2d 832). We construe this statute likewise.
We find no mandatory provision that the judge
must accept a plea of guilty under such
circumstances. There is no federally recognized
right to a criminal trial before a judge sitting
alone. Singer v. United States, 380 U. S. 24, 34
(85 SC 783, 13 LE2d 630); Lynch v. Overholser,
369 U. S. 705, 719 (82 SC 1063, 8 LE2d 211). The
opinions of this court are in accord. Palmer v.
232 Ga. 13 (205 SE2d 247)
and United States v. Matlock, 415 U. S. 164 (94
SC 988, 39 LE2d 242) (1974).
As to the clothing obtained
from the defendant the evidence shows that when
he came to the police station though not under
arrest, there were spots on his trousers in
plain view that appeared to be blood spots. When
it was suggested that the trousers should be
sent to the laboratory the appellant voluntarily
took off his clothing without objection and they
were sent to the laboratory. He was furnished a
blanket to wrap about himself. Part of the
defendant's clothing was a belt with a large
buckle. In view of the testimony concerning the
beating of the victim with such a belt it was
material and relevant. Seizure of the clothing
was justified under the "plain view rule" even
if permission had not been given. Katz v. United
States, 389 U. S. 347; Coolidge v. New
Hampshire, 403 U. S. 443.
The trial court did not err
in denying the motion to suppress this evidence.
5. There was no error in
admitting photographs of the victim. Photographs
which tend to show relevant and material facts
are admissible although it is alleged that they
are designed to inflame and prejudice the jury.
Eberheart v. State,
232 Ga. 247 (206 SE2d 12);
Dixon v. State,
231 Ga. 33 (200 SE2d 138).
6. The Act providing for the
imposition of the death penalty deals with only
one subject and is not violative of the Georgia
Constitution. Code Ann. 2-1908. Each section of
Ga. L. 1973, pp. 159-172 relates to the
procedure by which the death penalty is imposed,
the justification thereof, the review of the
same, and other administrative details. Each
section is consistent with its announced subject
matter, "Provision for Imposition of Death
7. The trial court did not
err in failing to charge the law of voluntary
manslaughter as the evidence did not authorize
such instruction. The evidence shows no
provocation for the defendant's action. To the
contrary it shows the defendant deliberately
securing a piece of rope, waiting for the victim
to return from the bathroom and stating to those
present that he was going to "kill the girl."
8. The appellant was given a
list of the witnesses to be called by the state
prior to arraignment aid afforded the
opportunity before the commencement of the trial
to interview those witnesses whose names had not
previously been furnished to him. This is
consonant with Code Ann. 27-1403. Yeomans v.
229 Ga. 488 (192 SE2d 362); Vinson v. State,
127 Ga. App. 607 (194 SE2d 583).
9. The trial court did not
err in holding the arrest of the defendant valid.
Where, as in this case, the
police have a local tip concerning the
perpetrator, a tip transmitted by a sheriff in
another county to the same effect, a complete
statement by an eyewitness to the crime
implicating the defendant and what appeared to
be blood spatters on the defendant's trousers,
they were justified in arresting the defendant
without a warrant "for other cause there is
likely to be failure of justice for want of an
officer to issue a warrant." Code 27-207. Paige
219 Ga. 569 (134 SE2d 793);
Johnson v. Plunkett,
215 Ga. 353 (110 SE2d 745).
Neither do such circumstances vitiate a
conviction, otherwise valid, had following
waiver of a commitment hearing, indictment by
grand jury and trial by jury. Blake v. State,
109 Ga. App. 636 (2) (137 SE2d
49) and cits. See also Frisbie v.
Collins, 342 U. S. 519 (72 SC 509, 96 Lid 541).
10. Enumerations of error 17,
18, and 19 complain that the trial court
improperly denied defense motions for mistrial
based on certain remarks of the district
attorney during closing argument. We have
carefully reviewed these remarks in the context
in which made and find no reversible error. It
is within the court's discretion as to whether
an allegedly improper argument of counsel is the
basis for granting a mistrial, and this
discretion should not be interfered with unless
manifestly abused. Code 81-1009; James v. State,
215 Ga. 213 (109 SE2d 735).
11. We have upheld the
constitutionality of the Georgia death penalty
statute and we are not persuaded to reconsider
the decision in those cases. Coley v. State,
231 Ga. 829 (204 SE2d 612);
Eberheart v. State,
232 Ga. 247, supra;
and House v. State,
232 Ga. 140 (205 SE2d 217).
12. There is no merit in
appellant's contention that Code Ann. 27-2534.1
(c) is unconstitutional in that it allows only a
portion of the court's charge to the jury to be
given in writing. The written material furnished
the court in this case is authorized and
required by the statute, is not evidence in the
case, is purely procedural, is restricted to the
sentencing phase of the bifurcated trial and
amounts to no more than a written formulation of
the jury's potential verdict. There is no
constitutional, legislative, or judicial
prohibition against such practice.
13. Jurors who stated that
they could not under any circumstances consider
imposition of the death penalty were properly
excused for cause. Witherspoon v. Illinois, 319
U. S. 510; Eberheart v. State, supra; Pass v.
227 Ga. 730 (182 SE2d 779) and Hart v. State,
227 Ga. 171 (179 SE2d 346).
We have applied the test of
constitutionality established by the standards
prescribed in Ga. L. 1973, p. 159 (Code Ann.
27-2537 (c) (1-3) et seq.), as we have in prior
cases. Coley v. State,
231 Ga. 829;
Eberheart v. State,
232 Ga. 247; and
House v. State,
232 Ga. 140, all
supra. Those similar cases we considered in
reviewing this case are listed in an appendix
attached to this opinIon.
We conclude that the sentence
of death imposed in this case was not imposed
under the influence of passion, prejudice, or
any other arbitrary factor, and the evidence
supports the jury's finding of statutory
Considering both the crime
and the defendant, and after comparing the
evidence and sentence in this case with that of
previous cases, we conclude the sentence of
death is not excessive or disproportionate to
the penalty imposed in similar cases. In no case
we have reviewed has the depravity of the
defendant and the torture of the victim exceeded
that established by the evidence and testimony
of the witnesses in this case. We affirm the
sentence of death.
Similar cases considered by
the court: Henderson v. State,
227 Ga. 68 (179 SE2d 76); Pass v. State,
227 Ga. 730 (182 SE2d 779);
229 Ga. 191 (190 SE2d 921);
Jackson v. State,
230 Ga. 181 (195 SE2d 921);
Watson v. State,
229 Ga. 787 (194 SE2d 407);
Callahan v. State,
229 Ga. 737 (194 SE2d 431);
Whitlock v. State,
230 Ga. 700 (198 SE2d 865);
Kramer v. State,
230 Ga. 855 (199 SE2d 805);
Bennett v. State,
231 Ga. 458 (202 SE2d 99);
Howard v. State,
231 Ga. 186 (200 SE2d 755);
Morgan v. State,
231 Ga. 280 (201 SE2d 468);
Creamer v. State,
232 Ga. 136 (205 SE2d 240);
House v. State,
232 Ga. 140 (205 SE2d 217);
Gregg v. State,
233 Ga. 117 (210
SE2d --); Carter v. State,
227 Ga. 788 (183 SE2d 392);
Wheeler v. State,
229 Ga. 617 (193 SE2d 819);
Allen v. State,
230 Ga. 876 (199 SE2d 793);
Lingerfelt v. State,
231 Ga. 354 (201 SE2d 445);
Echols v. State,
231 Ga. 633 (203 SE2d 165);
Emmett v. State,
232 Ga. 110 (205 SE2d 231).
832 F.2d 543
Timothy Wesley McCORQUODALE, Petitioner-Appellant,
Ralph KEMP, Warden, Respondent-Appellee.
United States Court of Appeals,
Sept. 8, 1987.
Appeal from the United States
District Court for the Northern District of Georgia.
Before BODBOLD, KRAVITCH and
HATCHETT, Circuit Judges.
This is McCorquodale's second
federal habeas corpus petition.
The petition raises three claims: that the sentencing phase jury
instructions were constitutionally deficient, that the death
penalty is discriminatorily applied in Georgia, and that trial
counsel was ineffective during the voir dire at trial. The
district court dismissed each of these claims under Rule 9 of
the Rules Governing Sec. 2254 Cases.
McCorquodale only presses his
first two claims on this appeal. We need not decide whether the
claim of discriminatory application of the death penalty was
properly dismissed on Rule 9 grounds in light of the rejection
of this claim in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct.
1756, 95 L.Ed.2d 262 (1987). We hold that the district court did
not err in dismissing the jury instruction claim as an abuse of
the writ and, therefore, affirm the judgment denying relief.
Under Rule 9(b), a federal
habeas court does not consider a claim raised for the first time
in a successive habeas corpus petition if the failure to raise
the claim in a prior petition earlier was the result of an abuse
of the writ. If the state alleges abuse of the writ, the burden
is on the plaintiff to rebut this contention. Witt v.
Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985). The district
court found that McCorquodale had not met his burden to
establish that the failure to raise the jury instruction claim
in his first federal petition was not cause for dismissal under
McCorquodale challenges the
sentencing instruction given to the capital jury on the grounds
that it "failed to properly instruct the jury ... on the role
which mitigating evidence should play and that they could impose
life sentence even if they found a statutory aggravating
circumstance beyond a reasonable doubt." Petition for Writ of
Habeas Corpus at 9-10. He asserts that similar instructions have
been condemned in this court in a line of cases beginning with
Spivey v. Zant, 661 F.2d 464 (5th Cir.1981).
Although Spivey was decided
after McCorquodale's first petition was filed, this is not a "new
law" claim based on legal principles not reasonably known until
after the first federal habeas petition. McCorquodale's first
petition was filed on January 17, 1979. At the latest, this jury
instruction claim was available to habeas counsel three and a
half months earlier, after the Fifth Circuit decision in
Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. October 3,
The court in that case
asserted the exact legal principle upon which McCorquodale now
seeks to rely: "We read Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct.
2954, 57 L.Ed.2d 973 (July 3, 1978) ] and Bell [v. Ohio, 438
U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (July 3, 1978) ] ... to
mandate that the judge clearly instruct the jury about
mitigating circumstances and the option to recommend against
death." 581 F.2d at 448.
Because the jury instruction
challenge is not a new law claim, we turn to McCorquodale's
other proffered justifications for the failure to raise this
claim in his first federal habeas petition. He asserts that his
first petition "was filed by counsel who ... had never 'consciously'
identified the claims." Appellant's Brief at 16. The district
court noted the testimony of McCorquodale's habeas counsel that
"he did not go back and review the McCorquodale trial transcript
to see if the trial judge's sentencing instructions could be
faulted based on the rationale of the Chenault decision."
District Court Opinion at 6. We conclude that the district court
did not err in finding that this does not meet the petitioner's
burden of establishing that a Rule 9(b) dismissal is
McCorquodale also seeks to
excuse the failure to raise this claim in the first petition
because it had not then been exhausted in the state courts.
McCorquodale's counsel testified that he understood his charge
in the federal habeas corpus proceeding to be to take to federal
court those issues that already had been exhausted in the state
courts. McCorquodale now argues that the failure to bring
available but unexhausted claims to federal court on a first
habeas petition was not abusive in light of exhaustion law at
the time. He points to the en banc Fifth Circuit decision in
Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978), which
required the dismissal of habeas petitions that include
unexhausted as well as exhausted claims.
McCorquodale thus seeks to
justify his counsel's failure to examine the record for
available but unexhausted claims because he did not want to
bring a mixed petition which would have been dismissed. This is
not a justification. Rule 9 reflects the strong federal policy
against piecemeal adjudication of federal habeas claims. This is
the ground on which the new Fifth Circuit sitting en banc
rejected an argument, similar to that raised here, that there
was no abuse in failing to raise unexhausted claims in a first
federal habeas petition. Jones v. Estelle, 722 F.2d 159 (5th
Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d
829 (1984). The court held that
a petitioner who has persisted
in the prosecution of a federal writ while aware of additional
but then unexhausted claims faces the hurdle of disproving abuse
when in a successive petition he presents the omitted claims.
While a petitioner may have an excuse for the omission, such as
newly found facts or changes in the law, that the omitted claim
was not then exhausted is alone not enough. To hold otherwise
would be to present his claims one by one to a federal court by
exhausting them one by one in the courts of the state.
Id. at 169 (footnote omitted).
See also Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984)
("Rudolph's sole excuse for not having raised this Brady claim
in his first federal petition is that it was an unexhausted
claim"; abuse found).
The insufficiency of this
second proffered excuse is apparent from an examination of
Galtieri itself. That case makes it clear that the rule is that
a mixed petition is to be dismissed by a federal district court
without prejudice. See 582 F.2d at 355. The court also notes
that the failure to raise a claim, even an unexhausted one, may
cause the petitioner Rule 9 problems. Id. at 357.
Putting these two items
together, the message of Galtieri to a lawyer in the position of
McCorquodale's habeas counsel was that the appropriate course of
action was to exhaust all available claims and then bring them
to federal court at the same time rather than risk the chance
that Rule 9 would bar later consideration of a claim on the
merits. The lack of exhaustion at the time of the first petition
does not change the determination that the failure to review the
state record at the time of the filing of the federal petition
was an abuse of the writ.
829 F.2d 1035
Timothy Wesley McCORQUODALE, Petitioner-Appellant,
Ralph M. KEMP, Superintendent, Georgia Diagnostic and
Classification Center, Respondent-Appellee.
United States Court of Appeals,
Sept. 20, 1987.
Appeal from the United States
District Court for the Northern District of Georgia.
Before GODBOLD, KRAVITCH and
HATCHETT, Circuit Judges.
Timothy Wesley McCorquodale,
convicted of murder and sentenced to death, appeals from the
district court's dismissal of his third federal petition for a
writ of habeas corpus. The state of Georgia moved to dismiss the
petition on the ground that the third petition raised a ground
for relief that had already been raised in McCorquodale's first
federal habeas petition and decided adversely to petitioner on
the merits. Rule 9(b) of the Rules Governing Proceedings in the
District Court on application under section 2254 of Title 28,
United States Code provides:
(b) Successive petitions. A
second or successive petition may be dismissed if the judge
finds that it fails to allege new or different grounds for
relief and the prior determination was on the merits, or, if new
and different grounds are alleged, the judge finds that the
failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ.
The district court concluded
that McCorquodale's third petition raised no new ground for
relief and that prior determination had been on the merits. The
court further concluded, following Sanders v. United States, 373
U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), that
controlling weight could be given to the prior denial of
McCorquodale's petition for habeas corpus because the "ends of
justice would not be served by reaching the merits of the
In his first federal petition,
McCorquodale argued that his trial had been rendered
fundamentally unfair by a statement in the prosecutor's closing
argument to the jury. After remarking to the jury that it had a
"vital contribution which you are now considering and will be
deliberating on," the prosecutor stated, "And after your
decision, the Appellate Court will have a very important
A panel of this court,
following the Supreme Court case of Donnelly v. DeChristoforo,
416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), held that "[i]n
the context of the entire trial, the remark was not sufficiently
prejudicial so as to render the trial fundamentally unfair."
The panel opinion noted that
the trial court gave a curative instruction. McCorquodale v.
Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983). This portion of
the panel opinion was adopted by the court en banc. McCorquodale
v. Balkcom, 721 F.2d 1493, 1502 (11th Cir.1983), cert. denied,
466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984).
McCorquodale now challenges
the same remark in the prosecutor's closing argument, but on
eighth amendment grounds. He argues that Caldwell v. Mississippi,
472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), decided
since the filing of his prior habeas petition, held that
prosecutorial remarks to the jury that emphasize appellate
review in capital cases violate the eighth amendment because
they tend to undermine the jury's sense of its own
responsibility as the body with the duty to determine whether or
not to impose the death penalty. Because the Caldwell decision
was delivered after this court's decision on the merits in his
first habeas petition, petitioner argues that Caldwell
represents new law, and that his petition should not be
dismissed under Rule 9(b).
As this court noted in Adams
v. Dugger, 816 F.2d 1493, 1496 n. 2 (11th Cir.1987), our
previous decision on McCorquodale's first habeas petition gave
no indication that the eighth amendment was implicated by
statements regarding appellate review. Moreover, the state of
the case law prior to Caldwell, gave no indication that such
statements might violate the eighth amendment.
Although the Supreme Court in
Donnelly v. DeChristoforo criticized such statements, it
observed that the case was not one in which a specific guarantee
of the Bill of Rights was violated but rather whether the
closing argument had violated due process. 416 U.S. at 643, 94
S.Ct. at 1871.
Caldwell was the first Supreme
Court case to hold that prosecutorial statements regarding
appellate review might violate the eighth amendment. Furthermore,
the state of eighth amendment law at the time of the filing of
McCorquodale's first petition was not sufficiently developed to
give a clear indication that such prosecutorial statements
raised an eighth amendment issue. See Adams v. Dugger, 816 F.2d
at 1495. We conclude that Caldwell represented new law; thus a
Caldwell violation, if proven, would present new grounds for
relief. We therefore grant the motion for Certificate of
We turn then to McCorquodale's
petition to determine whether it raises a viable Caldwell claim.
McCorquodale argues that the prosecutor's statements regarding
the important responsibility of the appellate court encouraged
the jury to abandon its crucial function as primary sentencer,
and that the curative instruction given by the trial court
failed to correct the damage. After the prosecutor told the jury
about the appellate court's "important responsibility," the
court gave the following curative instructions:
This portion of the argument
made by the District Attorney is highly improper and I quote.
And after your decision the Appellate Court will have an
important responsibility. End of quote.
Now ladies and Gentlemen, I
urge this brief instruction, that you eliminate from your minds
any consideration whatsoever respecting that particular portion
of the District Attorney's argument, ladies and gentlemen. Give
it no consideration whatsoever, insofar as you are concerned as
jurors. This case is concluded when you return your verdict. As
a matter of fact, theoretically, insofar as this Court is
concerned, it's concluded, ladies and gentlemen. Give that
remark no consideration whatsoever. Eliminate it from your minds
as though it was never made and ladies and gentlemen, again, I
would request, to be very assured, to disregard what is a highly
As the district court observed,
what the trial court did here is far different from the actions
of the court in Caldwell. In Caldwell, the trial judge not only
failed to correct the prosecutor's remarks but in fact stated to
the jury that the remarks had been proper and necessary. 472
U.S. at 324, 105 S.Ct. at 2636, 86 L.Ed.2d at 237. See also
Adams v. Wainwright, 804 F.2d 1526, 1532 (11th Cir.1986),
modified in part sub nom. Adams v. Dugger, 816 F.2d 1493 (11th
In Caldwell, however, the
Supreme Court did not say that any reference to appellate review
would constitute ground for reversal; rather it stated that "[s]uch
comments, if left uncorrected, might so affect the fundamental
fairness of the sentencing proceeding as to violate the Eighth
Amendment." 472 U.S. at 340, 105 S.Ct. at 2645, 86 L.Ed.2d at
246 (emphasis added).
The Caldwell Court also
distinguished Donnelly v. DeChristoforo, pointing out that in
Donnelly, the trial judge had given the jury a "strong curative
instruction." Id. at 339, 105 S.Ct. at 2645, 86 L.Ed.2d at 246.
The question then is whether the trial judge in this case
sufficiently corrected the impression left by the prosecutor.
Here, the court immediately
instructed the jury to eliminate the prosecutor's improper
argument from its consideration and told the jury, "This case is
concluded when you return your verdict." The trial court
properly did more than merely instruct the jury to disregard the
prosecutor's statement; it advised the jury that the statement
was "highly improper" and that the case ended with the jury's
decision. This admonishment was sufficient to correct any
improper impression that the prosecutor may have sought to
We conclude therefore that
McCorquodale has failed to show a Caldwell eighth amendment
violation. Accordingly, we AFFIRM the judgment of the district
court dismissing the petition for habeas corpus.
We deny the motion for oral
We deny the motion for a stay