877 F.2d 851
Roy Allen Stewart,
Petitioner-Appellant,
v.
Richard L. Dugger, as Secretary Department of
Corrections,
State of Florida, Respondent-Appellee.
Docket number:
86-5800
Federal
Circuits, 11th Cir.
June 27, 1989
Appeal from the United States
District Court for the Southern District of
Florida.
Before RONEY, Chief Judge, and HILL and
KRAVITCH, Circuit Judges.
HILL, Circuit Judge:
The court, sua sponte,
reconsiders this case insofar as our previous
opinion addressed an issue which had been raised
by the court sua sponte and unadvisedly. For the
reasons stated, one section of our previous
opinion (I-B) is stricken and a statement of the
reasons for its being stricken is inserted. In
order that our entire opinion may be found in
one place, we vacate our earlier opinion, 847
F.2d 1486 (11th Cir.1988), and the following is
adopted in its place and stead:
Roy Allen Stewart brought
this federal habeas petition challenging his
sentence of death. His petition sets forth four
claims for relief; (1) comments made by the
trial judge diminished the role of the jury in
violation of Caldwell v. Mississippi, 472 U.S.
320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), (2)
improper exclusion of a juror in violation of
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968), (3) ineffective
assistance of counsel at sentencing, and (4)
racial discrimination in imposing the death
penalty. The federal district court denied
relief on all four claims. We affirm.
The facts surrounding
Stewart's 1979 conviction are sufficiently
detailed by the Florida Circuit Court's order
denying state habeas relief:
The victim, Margaret Haizlip,
a woman of small physical stature, in her late
seventies, was a pioneer of South Florida living
in a small home across from Stewart's temporary
residence. About 10:00 p.m. Mrs. Haizlip was out
on her porch and saw Stewart. She waived [sic]
to him, invited him into her home and fixed him
a sandwich. Shortly thereafter he went to her
bathroom and stole a gold watch from the
medicine cabinet.
Mrs. Haizlip, after going
into the bathroom confronted the defendant,
apparently about the stolen watch, whereupon
Stewart beat and pummelled Mrs. Haizlip
unmercifully about her ribs, face and head.
While so doing, the defendant was tearing the
clothing and ultimately the underwear from her
body.
As she lay on the floor,
bleeding from her face, moaning and "making
noises," the defendant forcibly had sexual
intercourse with her in a manner so vicious so
as to tear her vagina. The defendant thereupon
fastened a cord with an iron attached to it
around her neck, pulled tightly on the cord and
thereby strangled her leaving a ligature mark on
her neck.
The medical examiner
testified the victim suffered eight broken ribs,
multiple contusions, and her larynx was broken.
A bite mark was identified on her thigh, and
what appeared to be a bite mark was on her
breast. There were blood stains and disarray in
the living room and bedroom area of her house,
indicating the victim was fighting and running
for her life. The defendant left the victim at
the scene with blood on his hands.
Sentence Order dated July 26,
1979 at 3-4.
On September 19, 1986, the
governor of Florida signed a death warrant (Stewart's
second). Stewart's execution was subsequently
scheduled to occur on October 7, 1986. Stewart
commenced various collateral attacks in state
court; a previous round of state collateral
attacks had proved unsuccessful. After Stewart's
claims were rejected a second time by the
Florida state courts, Stewart commenced this
federal habeas proceeding.
On October 5, Stewart's
petition was denied by the United States
District Court for the Southern District of
Florida. The district court, however, granted a
certificate of probable cause to appeal, but
denied a stay of execution. In view of the fact
that the district court had granted a
certificate of probable cause to appeal, we
granted a stay of execution. Stewart v.
Wainwright, 802 F.2d 395 (11th Cir.1986); see
Eleventh Circuit Rule 22-3; Barefoot v. Estelle,
463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983).
I. THE CALDWELL V.
MISSISSIPPI ISSUES
* Stewart contends that
comments made during voir dire diminished the
role of the jury in violation of Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985). During voir dire, the trial
court asked the following question of a juror:
Just briefly, let me ask you
about capital punishment. We have to ask this
question, ... because this is one of those cases
where the legislature has said that the death
penalty is the appropriate penalty.
Trial Transcript at 409.
Stewart claims that the impact of this statement
was compounded by the judge's earlier comment to
the jury that "[y]ou will assume that all the
proper evidence and the proper law will be
presented to you." Id. at 358-59.
According to the appellant,
the effect of the judge's comment was to
instruct the jury that the appropriateness of
his execution had already been decided by the
state legislature, thus minimizing the jury's
sense of responsibility for determining the
death penalty. We disagree.
The inquiry under Caldwell is
whether comments made at trial "mislead the jury
as to its role in the sentencing process in a
way that allows the jury to feel less
responsible than it should for the sentencing
decision." Dugger v. Adams, --- U.S. ----, 109
S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989) (quoting
Darden v. Wainwright, 477 U.S. 168, 184, n. 15,
106 S.Ct. 2464, n. 15, 91 L.Ed.2d 144 (1986));
See Harich v. Dugger, 844 F.2d 1464, 1473 (11th
Cir.1988) (en banc), cert. denied, --- U.S.
----, 109 S.Ct. 1355, 103 L.Ed.2d 822 (1989);
Mann v. Dugger, 844 F.2d 1446, 1456 (11th
Cir.1988) (en banc), cert. denied, --- U.S.
----, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989).
Here, in the context of the
entire trial, it is clear that the jurors were
under no impression that the legislature had
predetermined the appropriateness of the death
penalty for Stewart. Although the trial judge's
question to the prospective juror was inartfully
phrased, the trial judge intended to convey the
message (1) that the legislature had determined
the death penalty to be appropriate in the
narrow class of homicides in which aggravating
circumstances are present, (2) that the
prosecutor intends to present evidence of such
aggravating circumstances in this case, and (3)
that the jury may impose death if aggravating
circumstances outweigh mitigating circumstances.
Throughout voir dire, the
jury was informed that not all murders call for
capital punishment and that a finding of guilt
as to first-degree murder does not require a
verdict of death. Id. at 275, 344, 348, 415,
419, 482, 490, 506, 566. On at least eighteen
occasions the trial judge referred to the fact
that death can only be imposed under appropriate
circumstances. Id. at 298, 299, 302, 309, 397,
400, 406, 441, 458, 460, 463, 479, 480, 513,
521, 526, 527, 550; see also id. at 518, 535,
567-68 (comments of counsel).
The jury was also
specifically informed during voir dire that they
would be required to weigh aggravating and
mitigating circumstances during the sentencing
phase. Id. at 392, 444. Furthermore, the terms
aggravating and mitigating circumstances were
defined during voir dire. Id. at 530-33.
Most significantly, the jury
was informed that the legislature had only
enacted guidelines as to when the sentence of
death was appropriate. Id. at 203, 213, 347,
348, 371, 563. Under these circumstances, the
trial judge committed no Caldwell error.
B
While reviewing the Caldwell
claim raised by Stewart and addressed above,
this court noticed other occasions where defense
counsel, the prosecutor and the trial judge
touched on functions of the jury which might
have been asserted as implicating Caldwell in a
manner different from that which had been
suggested by Stewart. The court sua sponte
requested supplemental briefing and then
addressed the merits of some, but not all, of
these other, potential Caldwell issues. See
Stewart v. Dugger, 847 F.2d 1486, 1489-93. (11th
Cir.1988).
Upon further consideration of
this record, however, we conclude that this
court should not have analyzed these Caldwell
issues. As our now withdrawn opinion observed,
it was Stewart who initiated many of the
comments we viewed as possibly implicating
Caldwell.
At trial, he did not object
to these comments or others made by the trial
judge and by prosecuting counsel. Stewart did
not challenge the legality of any of these
comments in his direct appeal to the Supreme
Court of Florida. As a result, he waived these
claims under Florida law. See Adams, 109 S.Ct.
at 1217, n. 6 (citing numerous Florida cases).
There is no assertion or
basis for finding that "cause" and "prejudice"
would excuse this procedural default, see
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct.
2497, 2506, 53 L.Ed.2d 594 (1977), and it is
clear that our failure to review these
additional Caldwell issues would not result in
the death sentence of "one who is actually
innocent," Murray v. Carrier, 477 U.S. 478, 496,
106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986).
Our review of the issues we
raised on our own motion is, therefore,
precluded. See Adams, 109 S.Ct. at 1215-1217 (defendant's
failure to raise Caldwell claim on direct appeal
to the Florida Supreme Court constituted a state
procedural default which was not excused by
cause and prejudice or actual innocence, thus
preventing federal habeas review.).
In contrast, Stewart did
challenge the constitutionality of the comments
discussed in part I-A of this opinion in his
direct appeal to the Supreme Court of Florida.
See Appellant's Brief to the Supreme Court of
Florida, R-15 at 8; Stewart v. State, 420 So.2d
862, 863 (Fla.1982), cert. denied,
460 U.S. 1103 , 103 S.Ct. 1802, 76 L.Ed.2d
366 (1983).
Stewart thereby properly preserved this claim
for federal habeas review.
II. IMPROPER EXCLUSION OF
A POTENTIAL JUROR
Stewart contends that the
exclusion for cause of a potential juror (Tom
Gillis) constituted a violation of Witherspoon.
The venireman's comments
unambiguously show that his views would "prevent
or substantially impair the performance of his
duties as a juror in accordance with his
instructions and his oath." Wainwright v. Witt,
469 U.S. 412 , 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985).
The factual finding by the
trial judge that this venireman could not
perform his responsibility as a juror in a
capital case should be given deference under
Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct.
1303, 1306, 71 L.Ed.2d 480 (1982); see
Wainwright v. Witt, 469 U.S. at 426-30, 105 S.Ct.
at 853-55; 28 U.S.C. Sec . 2254(d)
(1982). No Witherspoon violation occurred in
this case.
III. INEFFECTIVE
ASSISTANCE OF COUNSEL
Stewart asserts that he was
denied effective assistance of counsel in
violation of Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We
reject this claim. The physical evidence
available to the state in this case was
overwhelming. Additionally, Stewart confessed to
police. In the face of this evidence, defense
counsel, at trial, argued that Stewart was
innocent. Even after the jury returned a verdict
of guilty, counsel used a portion of his
allotted time during sentencing to argue that
Stewart was innocent.
Stewart now contends that the
reliance upon a claim of innocence, to the
exclusion of all else, was ineffective and
resulted in defense counsel's failure to
investigate Stewart's background sufficiently.
Stewart claims that evidence of his mental
condition, background, and character would have
changed the result of the sentencing proceeding.
He relies upon a
psychological examination conducted four years
after his conviction which concludes Stewart had
been mentally ill his entire life. Stewart also
claims that witnesses were available to defense
counsel who could have "evoked a sympathetic
response" from the jury had they been contacted
by defense counsel.
Trial counsel made a
strategic decision that in light of the
atrocious nature of the offense, Stewart's only
chance of avoiding the death penalty was if some
seed of doubt, even if insufficient to
constitute reasonable doubt, could be placed in
the minds of the jury. This court has repeatedly
recognized the impact such an argument may have
upon a jury. See Johnson v. Wainwright, 806 F.2d
1479, 1482 (11th Cir.1986) (citing cases), cert.
denied sub nom. Johnson v. Dugger, --- U.S.
----, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987);
Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir.
Unit B 1981), modified on other grounds, 671
F.2d 858 (5th Cir. Unit B 1982), cert. denied,
459 U.S. 882 , 103 S.Ct. 181, 74 L.Ed.2d
148 (1982).
Every court which has ruled
upon Stewart's claims has recognized that under
the circumstances of this rape and murder,
defense counsel had little with which to work in
arguing against death. Trial counsel cannot be
faulted for attempting to make the best of a bad
situation.
Defense counsel presented a
logical and well-constructed argument inviting
the jury to believe that the defendant left the
victim alive and another party, said to be a
dope addict, committed the murder. This was a
classic attempt to create lingering doubt in the
minds of jurors as to Stewart's guilt. See
Johnson v. Wainwright, 806 F.2d at 1482; Smith
v. Balkcom, 660 F.2d at 580-81. Counsel was not
constitutionally deficient for devoting his
resources, both in terms of argument time and
pre-trial investigation, to such a strategy.
Even were we to find trial
counsel's conduct in this regard to fall below
the performance standard of Strickland, no
prejudice has occurred. Stewart now proffers the
testimony of additional character witnesses who
he claims should have been called to testify at
trial. We are not persuaded that these witnesses
would have had any significant impact upon the
trial. Such testimony would have merely been
cumulative. The evidence which Stewart now
claims should have been presented to the jury
would not have had an effect on their verdict.
IV. RACIALLY
DISCRIMINATORY IMPOSITION OF THE DEATH PENALTY
Finally, Stewart claims that
the death penalty is imposed in a racially
discriminatory manner in the state of Florida.
In light of the Supreme Court's decision in
McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756,
95 L.Ed.2d 262 (1987), this claim is without
merit. See Ford v. Strickland, 734 F.2d 538, 541
n. 2 (11th Cir.1984).
For the reasons set forth
herein, the judgment of the district court is
AFFIRMED.
*****
APPENDIX
THE COURT: Mr. Gillis, you
have heard all of the questions that the
attorneys have been asking and the--
MR. GILLIS: Yes, Your Honor.
THE COURT: Now seated--
MR. GILLIS: I don't believe
in capital punishment at all.
THE COURT: Under any facts or
circumstances?
MR. GILLIS: No, ma'am.
THE COURT: Let us take it in
the two part question.
Do you feel that your
feelings about capital punishment would prevent
you from reaching a decision as to the guilt or
innocence of the defendant in the first trial?
MR. GILLIS: No.
THE COURT: Do you feel there
are no circumstances, no matter how atrocious or
heinous or cruel, that could be presented or
shown to you that would warrant you in
recommending--and only in recommendation--to the
Court that the death penalty be imposed?
MR. GILLIS: No, ma'am.
Trial Transcript at 425-26.
....
MR. SHERMAN: Is it that you
really understand no set of circumstances that
you could impose the death penalty, or any other
reason why you don't want to serve on this jury?
MR. GILLIS: I mean, in the
Manson case, I would think about it hard in
something like that. But, I just don't think I
could.
MR. SHERMAN: But, you would
consider it in the Manson case?
MR. GILLIS: Sure, I would,
but I don't think that--
THE COURT: What?
MR. GILLIS: I would consider
it, but I don't think that I could do it.
THE COURT: You don't think
you could do it?
MR. SHERMAN: But, you are not
sure? Would it be fair to say that you have to
hear the facts and then maybe you could consider
it? Is that a fair statement?
MR. GILLIS: Yes, sir.
MR. STELZER: Mr. Gillis, can
you envision any set of circumstances in this
case where you could look at that person and say
that, "I recommend that he be sentenced to death
in the electric chair."
Can you do that?
Mr. Gillis: If I saw gross
and gorey pictures.
THE COURT: What did he say?
MR. GILLIS: If I saw a lot of
gorey pictures and they turned my stomach and
everything, I guess I could.
MR. STELZER: What if the law
makes no mention of gorey pictures at all, and
in the law it has nothing to do with gorey
pictures as to whether or not you will recommend
death or life imprisonment?
MR. SHERMAN: I will object to
the form of the question.
THE COURT: Form is improper.
Sustained.
MR. STELZER: Can you form in
your own opinion whether it will relate to death
penalty, and follow the law even if the law is
totally different than what you think?
MR. GILLIS: I really don't
think that any case deserves the death penalty
except on--I stuttered when I said that.
THE COURT: What did he say?
MR. STELZER: Say what you
said.
MR. GILLIS: (No response.)
THE COURT: Say what you said,
I want to hear it.
MR. STELZER: Would you tell,
Your Honor, the comment that you made.
MR. SHERMAN: I object, Your
Honor.
MR. GILLIS: All I said was
that I stuttered when I said that.
THE COURT: Oh, I see.
Will the attorneys and the
court reporter please come side bar.
(Thereupon, Counsel for the
respective parties and the court reporter
approached the bench and the following
proceedings were had:)
MR. STELZER: Challenge for
cause.
MR. SHERMAN: Objection, Your
Honor. All he said at the end was I don't think
that the death penalty--he doesn't think that he
would vote for the death penalty. He doesn't
think it is deserved of anyone. Under an
atrocious crime, he could consider it.
THE COURT: He finally said he
wouldn't vote to impose the penalty, but he said
that under the facts of Charles Manson, he could.
Over objections of Defense,
Mr. Gillis is excused for cause.
Id. at 436-39.
*****
