Petition — MOORE v. BALKCOMCOM (No. 83-6084)
Supreme Court brief1983
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DANIEL J GIVELGEN
DONALD BERMAN
Wartheaastern Univeraeit
Beneal @F Law
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NUE ry RE ’
QUESTIONB PRESENTED |
' 4, Does petitioner's Geeth sentence vielate Eddings vy.
Qhiahoma, 455 0.8, 104 (1002) and Leokett ¥. Ohio, 438 0.8, 586
(L878) when & sentencing Judge refuses te consider relevant
Mitigating Gireumetances and believes that the death sentence ie
required mandaterily fer certain erimea?
. Did the Clre@ull C@urt @FF iA Feversing the Bietriet
Court's determination that petitioner's arbitvary and freakian
death sentence was net earreeted by Geargia appellate review when:
(a) the Georgia Supreme Court compared similar erimes and iqnered
ite eanetitutional and atatutery ebligation te eompare the
sentences feeeived by comparable defendants; (b) the Geergia courts
denied the petitieaner any forum in whieh te identify, examine,
supplement @F Comment upen the reeerd ef eases relied upen fer
eomparability reviews and (e@) the Cireuit eeurt Barred any federal
habeas @xamination ef the Comparability reeerd used by the Geargia
Supreme Court?
i, In the fare inetanee ef & plea if @ Capital ease, de the
BiGhEN and Fourteenth amendments te the United States Conatitutiean
sanction plea preeeedings that tetally failed te aseertain whether
@ defendant knowingly pled te an essential element ef the erime ==
1.@, intent?
TABLE OF CONTENTS
Page
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DE © 6 656 «6 6 ee 6 6 «6 @e 0 6 6 @ @
rn (h(i « 6 6 ¢ «© © 6 6 © © 6 0© 6 6 8
Btatement @F Juri@d@ictional Grounds ......4+24+2.es-s
CONSELEUEL@AaL Pr@Visions Involved ......4+24+24+4e6-
jt ME + « 6 os 6 6¢ 6 © © «© © © © © eo ew oO
meneame COP GEGRUARG The Writ . . . « « «© © © © © -6© © © ©
b, Phe ChPe@ult court violated this Cour decision in
Badings ¥. Okiahema by failing to require resentencing when the
senteneer theught Nimself precluded from considering mitigating
eilreumaetaneces, i. ess « © & « «© ee es 6 6 ee
#, THe CLP@utt court erred in reversing the District court's
Geterminatian that petitioner's aberrant death sentence had not
been Carreeted By Georgia appellate review and in barring the
Diateiet ee@urt fem reviewing the record developed and considered
in rr [OMT E., » «6 c«e ¢ © 8 eo 6 © © 8 8
i, Me CilPe@ult court erred in permitting a conviction based
WPOh & Plea €O & PApital offense to stand when the record of the
sentencing preeeeadings demonstrates that the offender did not
un@eratanad the @lements of the crime.
Caneiusian ‘oe oe
Appendices:
A, M@ere ¥. Balkcom, 716 FP. 2d 1511 (llth Cir. 1983) and the
Slip @pinian @F the modification thereto, dated December 13, 1983.
B. Moore ¥. Balkcom 709 FP. 2d 1353 (1983) ..
©. Blake vy. Zant 513 F. Supp. 772 (S.D. Ga. 1981)
® M@ere ¥. Hopper Civil Action No. 78-22 (Superior
Ceurt, Tattnall Cty. July 13, 1978)
B. Meere ¥. State 239 Ga. 67 (1977)
FP. Moere v. State 233 Ga. 861 (1974).
G. OFFL@Lal Code of Georgia Annotated (OCGA) 17-10-35
ai
10
13
23
26
Al
A22
A39
A65
ABl
AB 3
Ag94
TABLE OF AUTHORITIES
Cases:
. Allen v. State, 231 Ga. 17, 200 S.E. 2d 106 (1973) 7, 8
Barclay v. Florida, _ U.S.___, 103 S. Ct. 3418 (1983) 13
Birt v. Hopper, 245 Ga. 221, 265 S.E. 2d 276 (1980) 4
Blake v. State, 239 Ga. 292, 236 S.E. 2d 637, cert. denied,
434 U.S. 960 (1977) 18
Boykin v. Alabama, 395 U.S. 238 (1969) 23
Brown v. Allen, 344 U.S. 443 (1953) 19
California v. Ramos, ___U.S.__, 103 S. Ct. 3446 (1983) ll, 21
Chenault v. Stynchcombe, 581 F. 2d 444 (5th Cir. 1978) 10
Coleman v. State, 378 So. 2d 640 (Miss. 1979) 15
Creamer v. State, 232 Ga. 136, 205 S.E. 2d 240 (1974) 7, 8
Eddings v. Oklahoma, 455 U.S. 104 (1982) 9,10,11 passim
Emmett v. State, 232 Ga. 110, 205 S.E. 2d 231 (1974) 8
Prank v. Magnum, 237 U.S. 309 (1915) 19°
Furman v. Georgia, 408 U.S. 238 (1972) 17
Gardner v. Florida, 430 U.S. 349 (1977) 22
Godfrey v. Georgia, 446 U.S. 420 (1980) 14, 21
Goodwin v. Balkcom, 684 F. 2d 794 (llth Cir. 1982) 10
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) 21, 22
Gregg v. State, 233 Ga. 117, 210 S.E. 2d 659 (1974), affd. as
Gregg v. Georgia, 428 U.S. 153 (1976) G6, 213, i7
Hall v. State, 241 Ga. 252, 244 S.E. 2d 833 (1978) 17
Harrell v. State, 108 Ga. App. 295, 132 S.E. 2d 787 (1963) 23
Henderson v. Morgan, 426 U.S. 637 (1975) 23
Hicks v. Okiahoma, 447 U.S. 343 (1980) 21
Jackson v. Virginia, 443 U.S. 307 (1979) 20, 22
Johnson v. State, 226 Ga. 511, 175 S.E. 2d 840 (1970) 7. 8
Jurek v. Texas, 428 U.S. 262 (1976) 15
Kramer v. State, 230 Ga. 855, 199 S.E. 2d 805 (1973) 8
Lingo v. State, 226 Ga. 496, 175 S.E. 2d 657 (1970) 6
Lockett v. Ohio, 438 U.S. 586 (1978) 9,10,11,12 passim
McCarthy v. United States, 394 U.S. 459 (1969) 24
Moore v. Balkcom, sub. nom., Blake v. Zant, 513 F. Supp.
772 (S.D. Ga. 19861) 2,8,9 passim
Moore v. Balkcom, 709 F. 2d 1353 (llth Cir. 1983) 9, ll
Moore v. Balkcom, 716 F. 2d 1511 (llth Cir. 1983) 9,10,12 passim
: Moore v. Balkcom, No. 81-7418, on Petition for Rehearing
and Suggestion for Rehering En Banc, Slip Opinion
(llth Cir., December 13, 1983) 10
Moore v. Hopper, Civil Action No. 78-22 (Superior Court, 36,7.
Tattnall County, July 13, 1978) (unpublished opinion) passim
Moore v. State, 233 Ga. 861, 213 S.E. 2d 829 (1974),
cert. denied 428 U.S. 910 (1976) §,13,i17
Moore v. State, 239 Ga. 67 235 S.E. 2d 519, cert. denied,
434 U.S. 878 (1977) 6
Nash v. Israel, 707 F. 2d 199 (7th Cir. 1983) 24
Pass v. State, 227 Ga. 730, 182 S.E. 2d 779 (1971) 5,8
Profitt v. Florida, 42& U.S. 242 (1976) 15
Pulley v. Harris, cert. granted, No. 82-1095 (U.S. S. Ct. 1983),14
sub. nom., Harris v. Pulley, 692 F. 2d 1189 (9th Cir. 1982)
Redd v. State, 242 Ga. 876, 252 S.E. 2d 383 (1979) 15
Scott v. State, 230 Ga. 413, 197 S.E. 2d 338 (1973) 8
Sims v. State, 229 Ga. 33, 189 S.E. 2d 68 (1972) 7
Spinkellink v. Wainwright, 578 F. 2d 582 (5th Cir. 1978), cert.
denied, 440 U.S. 976 (1979) 19
Spivey v. Zant, 661 F. 2d 397 (5th Cir. 1981) 10
Strozier v. Hopper, 234 Ga. 597, 216 S.E. 2d 847 (1975) 18
Sumner v. Mata, 455 U.S. 581 (1982) 20
Vitek v. Jones, 445 U.S. 480 (1979) 21,22
Waddy v. Heer, 383 F. 2d 789 (6th Cir. 1967) 24
Ward v. State, 239 Ga. 205, 236 S.E. 2d 365 (1975) 17
Warren v. State, 562 S.W. 2d 474 (Tex. 1978) 15
Watson v. State, 229 Ga. 787, 194 S.E. 2d 407 (1971) 8
Westbrook v. Zant, 704 F. 2d 1487 (llth Cir. 1983) 10
Woodson v. North Carolina, 428 U.S. 280 (1976) 10,12
Zant v. Gaddis, 247 Ga. 717, 279 S.E. 24 219 (19861) 4
Zant v. Stephens, U.S. 103 S&S. Ct. 2733 (1983) 4,10,12,passim
STATUTES
Georgia Code Annotated (Ga. Code Ann. 26-1101(A)(19786) 23
Official Code of Georgia Annotated 17-10-35, 5,15,16
Official Code of Georgia Annotated 17-10-37 7, 4s
28 U.S.C. §2254 19, 20
286 U.S.C. §2241 19
Vernon, Appofated SPOR, Pia Pr iminal Procedure, (V.A.C.C.P.), 15
iv
No. 83-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
WILLIAM NEAL MOORE,
Petitioner
CHARLES BALKCOM, Warden
ARTHUR K. BOLTON, Attorney General,
Respondents
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner William Neal Moore, respectfully prays that a writ
of certiorari issue to review the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
CITATION TO OPINION BELOW
Moore V. Balkcom, 716 F. 2d 1511 (llth Cir. 1983) and the slip
Opinion of the mcdification thereto, dated December 13, 1983, are
attached as Appendix A to this petition.
JURISDICTION
The judgment of the United States Court of Appeals for the
Eleventh Circuit was entered on September 30, 1983. A timely
suggestion for rehearing en banc was denied on December 13, 1983.
This Court's jurisdiction is invoked pursuant to 28 U.S.C. §1254(1)
rerereeaieareeasiiiaiastaticailiniinaiaiiaiaiiniiliiiai
: This case involves the Eighth Amendment to the Constitution of
the United States, which provides:
Excessive bail shali not be required, nor
excessive fines imposed, nor cruel and unusual
punishment inflicted.
and the Pourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
{[NJor 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 la.s.
STATEMENT OF THE CASE
The Defendant and the Crime
William Neal Moore was, on April 2, 1974, a twenty-two year
old black serviceman from Ohio with no adult criminal record.
After a night of drinking, Moore broke into a home in Wrens,
Georgia. He was confronted by the homeowrsr who fired at him with
a shotgun. Both frightened and drunk, he fired back, killing the
homeowner. The following day, petitioner was arrested at his home.
After showing the police the shotgun and the money, he was taken to
Wrens, Georgia. At 2:00 a.m., on April 4, 1974, Moore gave a
statement concerning the shooting of the victim. Moore v. State,
233 Ga. 861-2, 213 S.E. 2d 829, 830-831 (1974) cert. denied 428
U.S. 910 (1976).
Pour months prior to petitioner's actions an elderly white
couple had been tortured and murdered in their home in Wrens (pop.
2300). When petitioner -faced sentencing, the murders remained
unsolved. Recognizing that widespread fear and anger permeated the
area, petitioner pled guilty and waived a jury for sentencing
because his counsel did not think “we had any chance whatsoever
with a jury in Jefferson County at the time.” Transcript State
Habeas, p. 46.(hereafter °S.Hab.T.")
Plea and Sentencing Hearing
Petitioner pled guilty to malice murder and armed robbery at
his arraignment on June 4, 1974. In accepting the plea, Jwdge
McMillan of the Jefferson County Superior Court, rather tnan
reading the indictment, only told Moore that the charge was that he
"did on the second day of April 1974, kill one Predger Stapleton
with a certain pistol, contrary to the law of the State of
Georgia..." Transcript of June 4, 1974 Arraignment, 1 (hereafter
"Arr.T.") The judge mentioned that the crimes were Murder and
Armed Robbery. He inquired whether petitioner understood the
nature of the charges, but he neither offered any explanation of
any of the elements of either crime charged (or of felony murder)
nor asked whether petitioner's counsel had explained then.
The sentencing hearing was held on July 17, 1974. The
prosecutor defined the question as “whether or not there is
aggravation in this matter sufficient, under the code Section, to
reguire the Court to impose the death penalty." Transcript State
Sentencing Hearing 4 (hereafter Sen. T.) (emphasis supplied).
The state presented the testimony of the medical examiner and
investigating officers. Following the state's presentation of its
case -- which rested almost exclusively on petitioner's confession
and the results of a nighttime search of his dwelling --
petitioner's four brothers and sisters and petitioner testified.
Petitioner's counsel asked no questions of the petitioner's
siblings nor did he make any reference whatsoever to the 74 page
pre-sentence report submitted to the court. +/
He only requested
of petitioner, who was under oath, that he “try as best you can to
tell the Judge how you got mixed up and how you came about doing
this thing and how you feei about it." Sen. T. 48. Petitioner
then briefly described the circumstances leading up to his drunken,
unintentional shooting of Predger Stapleton. "I didn't have no
intention of killing him. When I went in there, he came out there
with a shotgun and hit me in the leg, it scared me, made me shoot
him..." Sen. T. 48. Although Moore's lack of intent was
confirmed by the physical facts, neither the District Attorney nor
the sentencing judge asked petitioner anything about his
*/Both petitioner and his counsel insist that they were never
shown a copy of the pre-sentence report which contains material
inaccuracies. S. Hab. T. 18-19, 40-41. The state habeas court
disbelieved petitioner's counsel in this respect and instead
credited an affidavit submitted by the probation officer four years
after the event. Moore v. Bakke Civ. Act. No. 78-22 at 8-9 (Sup.
Ct., Tattnall Cty. July ’ . Whatever the cause, the pre-
sentence report stood unchallenged and uncorrected.
description of the killing, his denial of intent, or his
understanding of the crime to which he had pled. The prosecutor
° cross-examined petitioner solely with respect to whether he claimed
any interest in the money that had been recovered. The judge asked
no questions.
Judge McMillan offered a lengthy explanation for imposing the
death sentence. He explained that he had “many, many reservations
about whether there will be an execution by government authorities
in this country ever again." Sen.T. 55. He doubted whether
discretionary, as opposed to mandatory, capital punishment schemes
would pass constitutional muster. Sen. T. 52, 55. Next, he stated
that he could not consider whether his sentence constituted
"evenhanded justice,"
Now I can't make that determination. The law
does not place that discretion in me. It places that
discretion solely within the jurisdiction of the
Supreme Court of Georgia. Sen. T. 55-56.
Finally, he expressed his feelings that this offense
required the imposition of the death penalty, precluding
consideration of mitigating factors in petitioner's case.
So, I feel like that if the Court ever does require
mandatory punishment -- that is when they specify by law
what offenses will have to be suffered by the electric
chair -- that one of these statutory offenses probably
will be that when a person is robbed and killed in his
home, that mandatory, as contrasted to discretionary,
statutory aggravating circumstances will probably warrant
the electric chair without life imprisonment. That
justifies me in making the finding that I made. Sen.T. 56-
57.
Six months after Judge McMillan sentenced petitioner to
death, those responsible for the murder of the elderly couple were
tried before Judge McMillan. He improperly instructed the jury.
He failed to inform them that they remained free to impose a life
sentence even if they found an aggravating circumstance. As a
result, the two of three defendants who received death subsequently
had their sentences overturned. Birt v. Hopper 245 Ga. 221, 265
S.E. 24 276 (1980); Zant v. Gaddis 247 Ga. 717, 279 S.E. 2d 219
(1981).
Direct Appeal
On appeal to the Georgia Supreme Court, petitioner's counsel
raised the comparability issue. He submitted affidavits to the
Georgia Supreme Court which identified cases from neighboring
counties in which defendants had received life sentences for crimes
of greater seriousness. The Supreme court refused to consider
them, noting that they had not been considered by the trial judge.
Moore v. State, 233 Ga. 661, 864, 213 S.E. 2d 829, 832 (1974)
cert. denied 428 U.S. 910 (1976). It then identified what it
viewed its obligation to be *. . . this court is not required to
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Getermine that less than a death sentence was never imposed in a
case with some similar characteristics. On the contrary, we view
it to be our duty under the similarity standard to assure that no |
death sentence is affirmed unless in similar cases throughout the
state the death penalty has been imposed generally and not
“wantonly and freakishly imposed... ." Id.
As required by Georgia law, Official Code of Georgia Annotated
(OCGA) 17-10-35(e)(1982), the Georgia Supreme Court identified a
pool of twenty-three comparable cases against which it measured
Moore's sentence. These cases involved murders during robberies
and burglaries. In fourteen cases, the detendant had received life
and in nine, death. Pointing to seven of the cases in which the
defendant received death, the Georgia Supreme Court concluded that
Moore's sentence was not disproportionate. "In each of the
companion cases cited, the records show that the accused was found
guilty of murder of the victim of a robbery or burglary committed
in the course of sucn robbery or burglary. In each of these cases,
the jury imposed the sentence of death. In Pass v. State, the
murder took place in the victim's home, as occurred in the case
under consideration.” 233 Ga. at 865-6, 213 S.E.2d at 833. The
court then noted that although life had been granted in a number of
the cases it examined, “the cited cases show that juries faced with
Similar factual situations have imposed death sentences" and
therefore Moore's sentence was not “wantonly and freakishly
imposed.” Id
The Georgia Supreme Court noted Moore's cooperation with the
authorities, his plea, his waiver of a sentencing jury, his youth,
his lack of a criminal record, his intoxication, and his firing out
of fright in response to the victim's shotgun blast, 233 Ga. at
865, 213 S.E. 2d at 832. Nevertheless it did not compare his
sentence with those received by defendants presenting comparable
EE ee
mitigating circumstances. Since Georgia law does not provide for
: notice of the cases which the Supreme court will consult for
measuring comparability, petitioner's counsel was not able to offer
any argument concerning either the pool of cases considered or the
cases ultimately deemed comparable.
State Collateral Relief
Following this Court's denial of Moore's petition for
certiorari 428 U.S. 910 (1976) and his unsuccessful attempt to
secure a declaratory judgment, Moore v. State 239 Ga. 67, 235 S.E.
2d 519 cert. denied 434 U.S. 878 (1977), petitioner sought habeas
corpus relief from the Superior Court of Tattnall County, Georgia.
However, petitioner was unable tc challenge comparability review in
those proceedings. The Superior Court of Tattnall County ruled
that it could not reconsider an issue which the Georgia Supreme
court had resolved on direct review. Moore v. Hopper, Civ.
Action No. 78-22 at 15-16 (Sup. Court, Tattnall County, July 13,
1978).
Petitioner also challenged the intelligence and voluntariness
of his plea in the state habeas corpus proceedings. Petitioner
testified that he did not understand the elements of malice murder,
armed robbery or felony murder. S. Hab. T. 22, 34. His counsel
testified that he had explained to Moore the elements of the crimes
charged, although he could not remember whether he ever informed
petitioner about the role of intent. He testified that intent was
not important.
Q. Did you tell him in, in the course of
those discussions, that he can be convicted
of murder not withstanding the intent or the
lack orf intent to kill?
A. I'm not sure, I really, I don't know.
Q. Uh, do you recall telling him that his lack
of a specific intent to kill Mr. Stapleton
was, would not amount to any kind of
defense?
A. Well, I didn't think it would under what we
had. Here's a man who's broken into
somebody's home with a, » .38 caliber gun.
Q. Yes, sir, I mean, you're right.
A. Yes, sir.
Q. I mean.
A. Uh, that clearly to me was a case of uh,
felony murder. S. Hab. T. __, 52-53 (emphasis
supplied)
The state habeas judge believed petitioner's counsel and
found that he had described the elements of the crimes charged to
petitioner (felony murder was not charged). Moore v. Hopper, Civ.
Action No. 78-22, 4, 7 (Sup.Court, Tattnall County, July 13, 1978).
The state habeas judge made no findings a DR petitioner
actually understood. The Supreme Court of Georgia denied
petitioner's application for a certificate of probable cause to
appeal on October 17, 1978.
Federal Habeas - The District Court
Petitioner did introduce the record relied on by the Georgia
Supreme Court in connection with his federal habeas corpus petition
filed in the Southern District of Georgia on November 22, 1978.
That record consisted of the opinions in the twenty-three cases,
summaries of each of the cases describing the crime, and the six
page judge's report for each case. All the summaries and the
judge's reports for the 1970-1973 cases were prepared by the
special assistant to the court pursuant to his statutory duties,
which required him to provide the Supreme Court:
with whatever extracted information it desires with
respect thereto, including, but not limited to, a
synopsis or brief of the facts in the record
concerning the crime and the defendant.
OCGA 17-10-37(a)&(b)(1982) Transcript Federal Habeas, i6, 21, 22,
26 (hereafter “Fed.Hab.T.").
Of the twenty-three cases, only two -- Johnson (Eddie Lee) v.
State, 226 Ga. 5l1l, 175 SE 2d 840 (1970); and Sims v. State, 229
Ga. 33, 189 SE 2d 68 (13972), 4/ -- involved even a single
mitigating circumstance. In both of these cases the defendants
received life. No other defendant -- neither the twelve who
received life nor the nine who received death -- had a single
mitigating factor arguing for him.
Four of the twenty-three cases involved robbery/burglary
murder within the victim's home. In three cases, Creamer v. State,
232 Ga. 136, 205 S.E. 2d 240 (1974); Allen v. State, 231 Ga. 17,
200 S.E. 2d 106 (1973); and Emmett v. State, 232 Ga. 110, 205 S.E.
2d 231 (1974), the defendant received life although each involved
double murders by defendants who presented no mitigating
27The summaries, trial judge reports, and opinions in the
twenty-three cases are contained in Appendices C, D and E to
Petitioner's Memorandum of Law submitted to the federal district
court.
circumstances. Two of these cases involved defendants with lengthy
criminal records, over forty years of age, Allen v. State, supra;
Creamer v. State, supra. The one case in which death was imposed
was a pre-Furman case. It involved a black man, Pass, who was
convicted of the double murder of a white couple. The couple had
been shot in the head after one of them was beaten with a baseball
bat during a burglary of their home. Pass v. State, 227? Ga. 730,
182 S.E. 2d 779 (1971). There were no mitigating circumstances and
Pass recanted his confession and presented an alibi defense.
The seven cases identified by the Georgia Supreme Court as
justifying Moore's death sentence included only one (Gregg v State,
233 Ga. 117, 210 SE 2d 659 (1974), aff'd 428 U.S. 153 (1976))
imposed under the post-Furman Georgia statute. That case involved
an execution-style, double murder. The other six involved either
defendants with lengthy criminal records who engaged in violent
criminal behavior toward more than one person [Scott v. State, 230
Ga. 413, 197 SE2d 338 (1973), (two murders),Watson v. State, 229
Ga. 787, 194 SE2d 407 (1971), (rape and kidnapping of a woman in
addition to murder of a man) and Kramer v. State, 230 Ga. 855, 199
S.E. 2d 805 (1973), (murder of one victim, attempted murder of the
other)] or pre-Purman crimes involving Black defendants and white
victims. Pass, supra; Lingo v. State, 226 Ga. 4936, 175 S.E.2d
657 (1970); Johnson v. State, 226 Ga. 51ll, 175 SE2d 840 (1970).
As noted, no case presented any mitigating circumstances.
The District Court examined the twenty-three cases and the
summaries considered by the Georgia Supreme Court. It concluded
that petitioner's death sentence violated the Eighth and Pourteenth
Amendments of the United States Constitution because (1) the
Georgia Supreme Court did not consider similar cases and (2)
upholding this death sentence would “shock the conscience." Moore
v. Balkcom sub nom Blake v. Zant, 513 F. Supp. 772, 816-817 (‘(S.D.
Ga. 1981). Then, the Pederal District Court, seeking to find
Similar cases that might sustain the sentence, looked outside the
record compiled by the Georgia Supreme Court. Since it found no
such cases it get aside the petitioner's death senterice. Moore v.
Balkcom, supra at 816.
The District Court denied petitioner's claim that his plea was
at the eatate habeas corpus preceedings the court found that the
plea wae Knowing and intelligent, Meere ¥. Balkoom, supra at 806
08,
Federal Habeas the Circuit Court of Appeals
On appeal the Eleventh Circuit Court of Appeals issued two
different decisions, plus one modification. In each instance, it
upheld the District Court's ruling on the plea and reversed the
District Court's ruling regarding the arbitrariness and
capriciousness of Moore's sentence.
In reversing, the Circuit court held
A federal habeas court should not undertake a
review of the state supreme court's
proportionality review and, in effect, "get out
the record” to see if the state court's findings
of fact, their conclusion based on a review of
similar cases, was supported by the “evidence” in
the similar cases. To do so would thrust the
federal judiciary into the substantive policy
making area of the state.
Moore v. Balkcom, 716 F. 2d 1511(1983). (Moore II)
However, in the first decision, Moore v. Balkcom, 709 F. 2d
1353 ("Moore I") issued June 23, 1983, the Eleventh Circuit
affirmed the District Court's decision on another ground. While on
appeal, the petitioners by letter dated February 24, 1982, called
to the attention of the Circuit court this Court's decision in
Eddings v. Oklahoma, 455 U.S. 104 (1982). In Eddings, this Court
held that (1) even though a statute does not mandate the death
penalty the sentencer must know that he is free to consider any
mitigating circumstances and (2) a death penalty conviction cannot
stand when the sentencing judge has applied ambiguous legal
standards.
The Circuit court rested its decision in Moore I on two
grounds: first, that the sentencing judge unconstitutionally
applied a non-statutory aggravating circumstance, Moore I at 1366-
67, and second, that the sentencing judge imposed a mandatory death
sentence that “eliminated consideration of valid mitigating
circumstances”. Id. at 1366, n. 16, citing Lockett v. Ohio, 438
U.S. 586 (1978).
On the basis of this Court's June 22, 1983 decision in Zant v.
Btephens, 103 8, Ce, 2733 (1983) the respondents moved for
rehearing, Hy letter dated Auguet 10, 198) petitioners reaponded
that thie Court's decision in Bant ¥. Btephens did net affeet that
pertion of the epinien Finding fFallure te eeonsider mitigating
Cireumstanees. This Court expressly had reaffirmed the need far
"an individualized determination on the basis of the
character of the individual and the circumstances of the
crime." Zant v. Stephens, 103 S.Ct. at 2744, citing
Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982);
Lockett v. Ohio, 438 U.S. 586 (1978); and Woodson v.
North Carolina, 428 U.S. 280, 303-304 (1976).
On September 30, 1983, the Circuit court decided Moore v.
Balkcom 716 F. 2d 1511 (llth Cir. 1983). In Moore II the court
reinstated petitioner's death sentence holding that (1) Zant v.
Stephens, no longer precluded a sentencer from utilizing non-
statutory aggravating circumstances and (2) "the analysis used by
the Georgia Supreme Court in conducting its mandatory
proportionality review" validated whatever errors the sentencing
judge might have committed.
Petitioner then sought rehearing on the ground that appellate
review cannot cure the sentencer's failure to understand his
responsibility to consider all relevant mitigating circumstances.
Eddings v. Oklahoma, 455 U.S 104 (1982); Goodwin v. Balkcom, 684 PF.
2d 794, 798 (llth Cir. 1982); Spivey v. Zant, 661 F. 2d 397, 471
(Sth Cir. 1981); Westbrook v. Zant, 704 F. 2d 1487 (llth Cir.
1983); Chenault v. Stynchcombe, 581 F. 2d 444 (5th Cir. 1978).
On December 13, 1983, the Circuit court again modified its
opinion holding that the sentencing judge had considered all
mitigating circumstances and fully understood the range of his
sentencing discretion. Moore v. Balkcom, No. 81-7418, on Petition
for Rehearing and Suggestion for Rehearing En Banc slip.op. (llth
Cir. 1983)("Moore III").
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD SUMMARILY REVERSE THE CIRCUIT COURT FOR
REFUSING TO FOLLOW THIS COURT'S DECISION IN EDDINGS V. OKLAHOMA
REQUIRING RESENTENCING WHEN THE SENTENCER THOUGHT HIMSELF PRECLUDED
FROM CONSIDERING MITIGATING CIRCUMSTANCES.
Since 1976, this court has made clear that a state can not
constitutionally mandate the imposition of the death penalty.
Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio,
436 0.8, $906 (197@)) Baddings vy. Oklahoma, 455 0.8, 104 ()98)),
Bven theugh 4 eatatute dees not mandate the death penalty the
eentencer muet Knew that he ia free te eoneider any Mitigating
elreumetancee,
.--Just as the state may not by statute preclude
the sentencer from considering any mitigating
factor, neither may the sentencer, refuse to
consider, as a matter of law, any relevant
mitigating evidence...
Eddings v. Oklahoma, 455 U.S. 104 (1982) at 113-114 (Powell,
Brennan, Marshall, Stevens, O'Conner, JJ)(citations omitted)
The record clearly establishes that the sentencing judge in
this case, like the judge in Eddings, did not understand the law
governing his discretion when imposing a death sentence. First, he
stated his belief that there would never be another execution in
this country. (Sen. T. 55). Secondly, he “justifie[d)" his
sentence on the ground that homicides committed during the robbery
of a victim's home would mandate the imposition of the death
penalty. (Sen. T. 57). He absolutely refused to consider the
"evenhandedness” of his sentence -- "the law does not place that
discretion in me. It places that discretion solely within the
discretion of the Supreme Court." (Sen. T. 56).3/ Finally, he
stated that before imposing a life sentence the mitigating
circumstances must “wipe out" the aggravating ones. (Sen. T. 56)
The Circuit court in Moore I correctly held that the
sentencing judge imposed a mandatory death sentence.
Here, we have a case where the murder having
occurred in the victim's home, Judge McMillan
viewed the death penalty as mandatory. This error
eliminated consideration of valid mitigating
circumstances that might otherwise have been
considered and this constituted error of
constitutional magnitude....See Lockett v. Ohio...,
438 U.S. 586 (1978).
Moore v. Balkom, 709 F. 2d at 1336 n. 16 (llth Cir. June 30, 1983)
(emphasis supplied)
Judge McMillan imposed this sentence after Furman
but before Gre and Woodson when reasonable
interpreters of Purman could conclude that there
could be no discretion and that ultimately,
discretion would be absolutely eliminated by
mandatory death sentences for specified crimes.
Judge McMillan “justified” his sentence on the
belief that murder in the victim's home would
37Tt would have been fatal error for the judge to have
instructed a jury in this manner since it might lead them to doubt
the finality of their sentencing determination. cf. California v.
Ramos, 103 S.Ct. 3446, 3458 (1983).
11
require @& Mandatory death sentence.
id, at 1466,
«ssfud@e@ McMillan unconstitutionally applied a
ne@neatatut@ry aggravating circumstance,
necessarily precluding consideration of
mitigating circumstances. Although his analysis
at the time was consistent with that of other
scholars, later cases teach us its faults.
Id. at 1367 (emphasis supplied)
Even the Circuit court in Moore II recognized the serious
uncertainty surrounding Judge McMillan's understanding of the law
when it prefaced its conclusion with
One could interpret Judge McMillan's language
that capital punishment would likely become
mandatory in cases involving murder and robbery in
the victim's home as a non-statutory aggravating a
factor which precluded consideration of mitigating
factors.
Moore II at 26-27. (emphasis supplied).
More obviously, the Circuit court demonstrated the lack of
reliability inherent in petitioner's sentence by (1) initially
interpreting Judge McMillan's language as mandating the death
sentence and precluding consideration of mitigating circumstances;
(2) substituting a second opinion that implicitly recognized this
error while relying on the proportionality review of the Georgia
Supreme court to buttress its conclusion that Moore had received
individualized sentencing; */ and (3) modifying the substituted
*/In Moore II, the panel, in light of Zant v. Stephens, U.S._,
103 S.Ct. 2733 (1983) modified its view and concluded that Judge
McMillan's sentence comported “with the constitutional requirement
of an individualized sentencing decision." Id. at 1524. The
petitioner maintains that Zant v. Stephens, supra changed nothing
in regard to defendant's right to be sentenced by a judge who
understood that the law never requires the imposition of the death
sentence.
This Court in Zant v. Stephens decided only that a sentencer
may, in certain limited circumstances, consider a non-statutory
aggravating circumstance. It did not hold that a sentencer can
refuse to consider mitigating circumstances. Indeed, this Court
expressly reaffirmed the need for “an individualized determination
on the basis of the character of the individual and the
circumstances of the crime." Zant v. Stephens, Id. at 2744 citing
Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); Lockett v.
Ohio, 438 U.S. 586 (1978); and Woodson v. North Carolina, 428 U.S.
280, 303-304 (1976).
This Court sanctioned the Georgia court's use of a non-
statutory aggravating circumstance on the grounds that the jury ia)
had found the presence of two legitimate aggravating circumstances,
(b) had received proper instructions that they had the discretion
to impose either life or death, and (c) under Georgia law could
have considered the evidence of the defendant's prior criminal
12
opinion to hold that Judge McMillan had considered all mitigating
circumstances, a conclusion that even the Georgia Supreme Court had
eschewed; >/ a conclusion flatly rejected by this same panel in
Moore I and totally unsupported by the record.
Thus, this court should grant the writ of certiorari and
summarily reverse that part of the decision of the court below that
holds that sentencing judge imposed a death sentence in conformity
with Eddings v. Oklahoma, supra.
II. THE CIRCUIT COURT ERRED IN REVERSING THE DISTRICT COURT'S
DETERMINATION THAT GEORGIA UNCONSTITUTIONALLY IMPOSED AN ARBITRARY
AND FREAKISH DEATH SENTENCE: (A) THE SENTENCING JUDGE IMPOSED AN
ABERRANT DEATH SENTENCE; (B) THE GEORGIA SUPREME COURT APPLIED AN
INADEQUATE TEST FOR COMPARABILITY; (C) PETITIONER WAS DENIED ANY
OPPORTUNITY IN ANY GEORGIA FORUM TO IDENTIFY, EXAMINE, SUPPLEMENT
OR MAKE ARGUMENTS CONCERNING THE RECORD OF CASES RELIED UPON FOR
THE COMPARABILITY ANALYSIS; AND (D) THE COURT OF APPEALS BARRED
FEDERAL HABEAS REVIEW OF THE RECORD BEFORE THE GEORGIA SUPREME
COURT
A. The Sentencing Judge Imposed an Aberrant Death Sentence.
Petitioner's sentence was imposed arbitrarily and capriciously.
The sentencing judge was mistaken in his understanding of Eighth
Amendment jurisprudence, misunderstood the range of his sentencing
discretion, and focused on one circumstance of the crime to the
exclusion of the array of mitigating factors concerning the
defendant. This Court in Gregg v. Georgia 428 U.S. 153 (1976) and
in Zant v. Stephens, supra, recognized the possibility that results
as aberrant as this one were possible under the Georgia scheme but
nonetheless upheld the statute since
Appellate review in the Georgia capital
sentencing scheme serves as a check against the
random or arbitrary imposition of the death penalty.
In particular, the proportionality review
substantially eliminates the possibility that a
person will be sentenced to die by the action of an
aberrant jury. Gregg v. Georgia, supra at 206.
record even if the judge had not charged in respect to the non-
statutory circumstance. Stephens, supra at 4894.
Justice White, concurring, also saw no problem with the use
of the non-statutory aggravating circumstance “since the evidence
supporting the invalid aggravating circumstance was properly
before the jury." Stephens, supra at 4899. Finally, Justice
Rehnquist's concurrence sounded a similar theme.
Thus, all seven Justices who joined in the Court's judgement,
expressed the opinion that the improper instruction had no
Significant impact on the jury's decision. ‘This Court has since
made clear that its conclusion in Zant v. Stephens rested on a
harmless error analysis. Barclay v. Florida, 103 U.S. 3418, n. 8
at 3425 (1983).
*/ tn Moore v. State, the Georgia Court noted four mitigating
circumstances that the sentencing judge did not consider. 233 Ga.
at 665, 213 S.E. 2d at 832.
‘Appellate review did not cure the arbitrariness inherent in
petitioner's sentence. Here, as in Godfrey v. Georgia, 446 U.S.
420 (1980) the statute, valid on its face, was applied ina
constitutionally inadequate fashion. First, the Georgia Supreme
Court failed to compare petitioner's case with the cases of
similarly situated defendants. Second, petitioner was denied any
access to or opportunity to make arguments about comparable cases
in any Georgia forum. Third, the Circuit court erred in holding
that the District court was barred from reviewing the record
developed and considered by the Georgia Supreme court in order to
resolve vetitioner's Eighth Amendment challenge.
B. The Georgia Supreme Court Applied an Inadequate Test of
Comparability
6/ violated
The Georgia Supreme court's comparability review
petitioner's Eighth and Fourteenth Amendment rights in two ways.
First it deemed petitioner's sentence comparable to death sentences
imposed by juries in cases involving similar aggravating
circumstances and thus, ignored the mandate of its own statute,
as well as the Eighth Amendment to also compare petitioner's
sentence to those sentences received by comparable defendants.
And, second, even assuming arguendo that it chose the correct cases
for comparison, those cases chosen provide no support whatsoever
for the court's conclusion that petitioner's sentence was
comparable. Indeed, the cases demonstrate precisely the opposite.
Comparability review represents the major device for
controlling the arbitrary and capricious imposition of the death
penalty in Georgia, Zant v. Stephens, supra. Georgia law provides
the sentencer no guidance as to who shall die from among those who
have committed capital crimes involving a valid aggravating circum-
stance. Zant v. Stephens, 103 S.Ct. at 2741-2. Georgia law
neither lists relevant mitigating circumstances for the sentencer
6’This case presents issues complementary to those presently
before this Court in Pulley v. Harris, No. 82-1095. That case
raises the question of (1) whether the Eighth Amendment requires
appellate proportionality review and, (2) if so, “what is the
constitutionally required focus, scope and procedural structure for
such review?" 51 U.S.L.W. 3590 (2-15-83). This case involves the
second of these questions in the context of statutorily mandated
proportionality review under the Georgia statute. It provides an
opportunity for this Court to clarify the obligations of both state
and federal courts in the context of the highly influential Georgia
model.
14
to consider nor insists upon jury instructions identifying those
circumstances in the case under consideration. Redd v. State, 242
Ga. 876, 252 S.E. 2d 383 (1979). Georgia law imposes no require-
ment that a sentencer make findings regarding a particular
individual and his suitability to die. Apparently, a defendant can
be sentenced to death when a sentencer feels that a non-statutory
circumstance -- e.g. the location of the killing -- compels it,
regardless of any number of mitigating circumstances. Moore II at
1524, ?/
Georgia compensates for the undefined discretion of the
sentencer through mandatory appellate review requiring a finding
that a sentence was not imposed under the influence of an arbitrary
factor and that the sentence is proportional to other sentences,
"considering both the crime and the defendant." OCGA 17-10-35
(1982). To facilitate this review, the statute creates the
position of an assistant to the Supreme Court and authorizes the
employment of staff. OCGA 17-10-37(a), (b) (1982). With regard to
capital felony cases since 1970, the assistant has been charged
with the responsibility of providing the Georgia Supreme court
“with whatever extracted information it desires with respect
thereto, including, but not limited to, a synopsis or brief of the
facts in the record concerning the crime and the defendant.” OCGA
17-10-37(a)(1982) (emphasis supplied) .°/ The court is required
‘/This contrasts sharply with both the scheme employed in Texas
and approved in Jurek v. Texas, 428 U.S. 262 (1976) which
conditions death on a jury finding that “there is a probability
that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society.” Art. 37.071(b)
(2) V.A.C.C.P.3; and with the Florida scheme, approved in Profitt v.
Florida, 428 U.S. 242 (1976) which conditions death on a finding
that the aggravating circumstances in a given case outweigh
mitigating factors. Indeed, given the array of mitigating factors
present here, petitioner could not have received death under other
“statutory schemes. See Warren v. State, 562 S.W.2d 474 (Tex.1978);
Coleman v. State 378 So. 2d 640 (Miss. 1979).
8/t facilitate this review, the trial judge is required to
prepare a report to the Georgia Supreme Court for every capital
case. This report contains a list of seven mitigating factors with
room to add additional ones. The factors are:
a. The defendant has no significant history of
prior criminal activity.
b. The murder was committed while the defendant
was under the influence of extreme mental or
emotional disturbance. =
c. The victim was a participant in the defendant's
homicidal conduct or consented to the homicidal
act.
dad. The murder was committed under circumstances
15
to identify in its opinion those cases which it considered for
purposes of proportionality review. OCGA 17-10-35(e)(1982). In the
event that it reverses a case on the grounds of disproportionality,
the records of similar cases, as well as the extracts of these
cases, prepared by the assistant to the court, are to be sent to
the trial judge for his consideration. OCGA 17-10-35(e)(2)(1982).
This procedure, properly conducted, is designed to eliminate the
arbitrariness inherent in the uncontrolled exercise of discretion
by Georgia sentencers. Zant v. stephens, 103 S.Ct. at 2742.
On its face, the standard applied by the Georgia Supreme
court in this case satisfied only one-half of its statutory mandate
and none of its constitutional mandate to guard against the
arbitrary and capricious imposition of the death penalty. The
court merely examined whether people who had committed crimes
involving a statutory aggravating circumstance comparable to the
circumstances in petitioner': case had sometimes received death.
There was no comparison of whether defendants like Moore had ever
received the death penalty. ?/ One-can only receive the death
penalty if there is evidence of an aggravating circumstance. The
Georgia Supreme court only examined whether a death sentence
sometimes was imposed on those who commit crimes involving a
Similar aggravating circumstance. This standard meant that every
death sentence was necessarily comparable unless the legislature
has totally misjudged the seriousness of a given aggravating
circumstance. At an absolute minimum, it meant that there could be
which the defendant believed to provide a moral
justification or extenuation for his conduct.
e. The defendant was an accomplice in a murder
committed by another person and his participation
in the homicidal act was relatively minor.
f. The defendant acted under duress or under the
domination of another person.
g. At the time of the murder, the capacity of the
defendant to appreciate the criminality [wrong-
fulness) of his conduct or to conform his conduct
or to conform his conduct to the requirements of
law was impaired as a result of mental disease or
defect or intoxication.
h. The youth of the defendant at the time of the
crime.
i. Other.
9/even the most cursory examination of the allegedly comparable
cases demonstrates that the Georgia court did not compare
petitioner to similar defendants. Statement of the Case, supra.
16
no such thing as a disproportionate sentence if the defendant, like
' petitioner here, had been convicted of a felony murder.
Indeed, with the exception of one case involving co-
defendants, Hall v. State, 241 Ga. 252, 244 S.E. 2d 833 (1978), and
another involving re-sentencing of one defendant, Ward v. State,
239 Ga. 205, 236 S.E. 2d 365 (1975), the Georgia Supreme court has
never reversed a death sentence on proportionality grounds.
However, this Court in Gregg v. Georgia, supra, and Zant v.
Stephens, supra did not pass on the constitutionality of a death
statute with this kind of comparability review. Rather, it passed
on the validity of the Georgia scheme as written. If the Georgia
Supreme court did not apply the statute as it is written, then
there was no practical difference between the pre-Furman and post-
Furman Georgia death scheme as applied to a defendant like
petitioner whose crime involved a valid statutory aggravating
circumstance. Nothing in Zant v. Stephens or Gregg v. Georgia
countenances such a result
C. Petitioner Lacked Any Georgia Forum to Challenge the
Comparability Analysis
In reviewing the petitioner's conviction, the Georgia Supreme
court noted one aggravating circumstance and six mitigating
circumstances. It then compared the petitioner's case with twenty-
three other cases. Moore v. State, 233 Ga. at 865, 869 213 S.E. 2d
at 833, 835. Of these twenty-three offenders, only nine received
death sentences, and of those nine, none involved a single
mitigating circumstance. Thus, when the District court examined
this record, it concluded that (1) the Georgia Supreme court did
not consider similar cases and (2) the imposition of this death
sentence did “shock the conscience." Moore v. Balkcom, 513 F. Supp.
772, 816, 817 (S.D. Ga. 1981).
A total lack of due process engendered this egregious error.
At the sentencing hearing the judge refused to consider
evenhandedness, stating
..-[The Georgia Supreme Court] will apply
"evenhanded justice” to your case with other
similar cases that have happened in Georgia. Now,
I can't make that determination. The law does not
place that discretion in me. It places that
discretion solely within the jurisdiction of the
Supreme Court of Georgia.
17
Sen. T. 55-56. The sentencing judge correctly stated Georgia
law. Blake v. State, 239 Ga. 292, 236 S.E. 2d 637, cert. den. 434
‘ U.S. 960 (1977).
The petitioner next sought the constitutionally mandated
proportionality review before the Georgia Supreme Court. Georgia
law made no provision for supplying this information to the
petitioner so that he might have been heard on whether these cases
did provide a proper basis for comparison. The petitioner, unaware
of the cases which the Georgia Supreme court would utilize in
conducting its review, tried, nonetheless, to call that court's
attention to other comparable cases. That Court expressly denied
him the right to do so. Moore v. State, supra 233 Ga. at 863-64,
213 S.E. 2d at 832.
Petitioner tried once again to raise this issue during his
state habeas corpus proceeding, but was precluded again because
Georgia law does not permit collateral attacks on the
appropriateness of the procedure used in conducting proportionality
review. Strozier v. Hopper, 234 Ga. 597, 598, 216 S.E. 2d 847, 849
(1975). Moore v. Hopper, Civ. Action No. 78-22, (Superior Ct.,
Tattnall Cty, July 13, 1978, p. 16.)
Thus, the Federal District court confronted a unique situation
where both Georgia law and the United States Constitution demanded
proportionality review but, under Georgia law, the finding of
proportionality was made from an unchallengeable record in an
unreviewable manner. Under these circumstances, the District Court
felt compelled to examine the twenty-three cases. This review led
the District Court to the conclusion that the petitioner's death
sentence violated the Eighth and Fourteenth amendments since it
"shocked the conscience" and could not be sustained under any
constitutional application of the Georgia death penalty statute.
Moore v. Balkcom, supra. 1°/
D. The Circuit Court of Appeals Barred Federal Habeas Review of
*“’The Federal District Court seeking to find similar cases that
might have sustained the sentence then looked outside the record
compiled by the Georgia Supreme Court. Since it found no such
cases it set aside the petitioner's death sentence. Moore v.
Balkcom, supra at 816. The District Court found no such cases
because there were none. To the knowledge of the petitioner no
such cases presently exist.
18
the Record before the Georgia Supreme Court.
In reversing, the Circuit court held
A federal habeas court should not undertake a
review of the state supreme court's proportionality
review and, in effect, “get out the record” to see
if the state court's findings of fact, their
conclusion based on a review of similar cases, was
supported by the "evidence" in the similar cases.
To do so would thrust the federal judiciary into the
substantive policy-making area of the state.
Moore II, at 1518. This holding constitutes clear error.
Since 1915, this court has held that the failure to provide
petitioner with a “corrective process" enabling him to raise and
litigate his constitutional claim justifies resort to federal
habeas corpus. Frank v. Magnum, 237 U.S. 309 (1915). Beginning in
1953 a state prisoner has possessed the right to have a federal
court in a habeas corpus proceeding consider the merits of his
constitutional claim even though the matter has been fully
litigated in the state court. Brown v. Allen, 344 U.S. 443
(1953)22/
The enactment of 28 U.S.C. $2254 in 1966 changed none of this.
28 U.S.C. §2241(c)(3) still continues to provide relief when the
prisoner "is held in custody in violation of the Constitution...of
the United States..."; and the new §2254(a) only limits federal
habeas corpus review to those cases where
{the applicant] is in custody in violation of
the Consti®ution...of the United States.
Since the petitioner alleged a violation of his Eighth Amendment
rights, 28 U.S.C. $2254 entitled the petitioner to have the
District court review the entire record and pass on his
*+/The Court of Appeals relied on its precedent in Spinkellink
v. Wainright, 578 F. 2d 582 (5th Cir.1978) cert. denied 440 U.S.
976 (1979). Moore II at 1517-18. However, Spinkellink dealt with
the claim that a Pederal District court should undertake its own
proportionality review including a consideration of all cases ever
decided in Plorida rather than those which the Florida Supreme
Court actually considered in deciding Spinkellink's appeal.
Spinkellink's contention would have involved the federal courts in
reviewing hundreds of cases and required them to continue reviewing
new cases until either relief was granted or the petitioner was
executed. Moreover, Florida law provides significant controls over
the sentencer's discretion and the Florida statute neither
expressly provides for nor creates procedures for comparability
review. Georgia law is very different, since it provides little
guidance to the sentencer, instead relying on proportionality
review to prevent the “wanton and freakish imposition of the death
penalty.” Finally, in Spinkellink the court did, in fact, examine
the cases which Spinkellink insisted demonstrated
Gisproportionality. Spinkellink v. Wainright, supra, n. 25.
19
—————————
constitutional claim.
Section 2254(d) requires that the Federal District court on
4 habeas corpus review presume the correctness of state court
findings on factual issues. But the petitioner's Eighth Amendment
claim raises no factual issues. Wo dispute exists. (1) Six
mitigating circumstances favored the defendant. (2) None of the
twenty-three cases used by the Georgia Supreme Court involved the
imposition of the death sentence when a single mitigating factor
favored the defendant. (3) The Georgia Supreme Court does not
notify offenders as to which cases it will use for its
proportionality review. And, (4) no Georgia court permitted the
petitioner to argue that the cases chosen were not comparable.
Thus the only issues presented to the Federal District court were
the “ultimate question[s] as to (1) the constitutionality” of the
procedures used in conducting the Georgia proportionality review
and (2) whether the record of these flawed proceedings justified
the imposition of the death penalty. These are either questions of
law or “mixed question[s] of law and fact that [are] not governed
by §2254." Sumner v. Mata, 455 U.S. 591, 597 (1982); see also,
Jackson v. Virginia, 443 U.S. 307 (1979).
But even if this case did involve a question of fact the
Federal District court still must examine the entire record.
Sumner v. Mata, supra, involved a constitutional challenge to a
photographic identification procedure. This Court has never
suggested that federal habeas courts are barred from even iooking
at the identification evidence in order to address the merits of
petitioner's claim.
Of course, the federal courts are not
necessarily bound by the state court's findings.
Section 2254(d) permits a federal court to
conclude, for example, that a state finding was
"not fairly supported by the record."
Sumner v. Mata, supra at 597. But, how does one argue that a
finding is “not fairly supported by the record” without looking at
the record?
In apparent recognition of this totally unprecedented revision
of twentieth century federal habeas corpus jurisprudence the
Circuit court stated
It is the state's responsibility to determine
the procedure to be used, if any, in sentencing a
20
criminal to death, See California v. Ramos, 103
S.Ct. at 3451-53. 12
Moore II at i518.
If the Circuit court meant that the definition and application
of comparability standards involves no federal question whatsoever,
its decision conflicts with this Court's ruling in Godfrey v.
Georgia, 446 U.S. 420 (1960). “This means that if a State wishes
to authorize capital punishment it has a constitutional
responsibility to tailor and apply its law in a manner that avoids
the arbitrary and capricious infliction of the death penalty.”
Id. at 428 (emphasis supplied). In Godfrey this Court reviewed a
Georgia death sentence imposed on the basis of a facially valid
aggravating circumstance in order to determine whether the applica-
tion of that circumstance to Godfrey's crime met Eighth Amendment
standards. Here, the District court examined a facially valid
comparability review to determine whether that review as applied
had succeeded in eliminating the arbitrary and freakish imposition
of the death penalty. This review was authorized by Godfrey v.
Georgia, supra and by Jackson v. Virginia, 443 U.S. 307 (1979).
Even if this Court were to eliminate constitutionally mandated
proportionality review, Georgia, by its own statute, must still
accord the petitioner due process when conducting the mandated
proportionality review. It cannot discard “all process" nor employ
"any process." Georgia must give the petitioner “due process" as
defined by the Fourteenth Amendment. Hicks v. Oklahoma, 447 U.S.
343, 346 (1980); Vitek v. Jones, 445 U.S. 480, 488-9 (1980);
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979).
Had the Georgia Supreme Court sealed the petitioner's fate by
a toss of the coin after finding that he commited a capital offense
the petitioner would be entitled to federal habeas relief even
though fifty percent of all defendants received life imprisonment.
This court has
repeatedly held that stare statutes may create
liberty interests that are entitled to the
*“/Contrary to the understanding of the Circuit court,
California v. Ramos does not support its holding. Indeed, this
Court reaffirmed that the validity of the Georgia death statutes
rests on “meaningful appellate review of each death sentence.”
California v. Ramos supra at 3452. This argument of the petitioner
addresses itself solely to the procedural inadequacy of this
constitutionally mandated appeliate review.
procedural protections of the Due Process Clause of
the Pourteenth Amendment.
Vitek v. Jones, supra at 468.
Thus, a defendant has no right to sentencing by a jury but
once a state provides for such sentencing the defendant
has a substantial and legitimate expectation that
he will be deprived of his liberty only to the extent
determined by jury in the exercise of its statutory
discretion...and that liberty interest is one that
the Fourteenth Amendment preserves against arbitrary
deprivation by the State...
Hicks v. Oklahoma, supra at 346.
Since a prisoner has a right to a hearing protected by a
panoply of due process guarartees when the state seeks to transfer
him from a prison ceil to a mental hospital bed, then, at a
minimum, those same guarantees should apply when the state proposes
to take him from his prison cell to the electric chair. Vitek v.
Jones, supra. A convicted prisoner has no right to parole but once
the state adopts a parole system it must provide the prisoner with
a panoply of due process rights. Greenholtz v. Nebraska Penal
Inmates, supra at 680-81. If a prisoner has a right to examine
records bearing on his release from prison and to a hearing where
he can contest records used by the parole board, it should follow
that a prisoner facing execution has a right to notice of those
cases that form the basis for concluding that his sentence was
proportional and to an opportunity to explain why he thinks the
cases chosen are not comparable.
Gardner v. Florida, 430 U.S. 349 (1977) supports this
conclusion. Justice Stevens, writing for the plurality, rejected
the argument that courts can be trusted to analyze .entencing data
without the aid of counsel.
"...the argument rests on the erroneous premise
that the participation of counsel is superfluous to
the process of evaluating the relevance and
significance of aggravating and mitigating facts.
Our belief that debate between adversaries is often
essential to the truth seeking function of trial
requires us also to recognize the importance of
giving counsel an opportunity to comment on facts
which may influence the sentencing decision in
capital cases."
Gardner v. Florida, supra at 360 (opinion of Stevens, Stewart
and Powell, JJ.)
III. A CONVICTION BASED UPON A PLEA TO A CAPITAL OFFENSE CANNOT
STAND WHEN THE RECORD OF THE SENTENCING PROCEEDINGS DEMONSTRATES
THAT THE OFFENDER DID NOT UNDERSTAND THE ELEMENTS OF THE CRIME.
22
Henderson v. Morgan, 426 U.S. 637 (1975) holds that a plea
cannot be voluntary in the constitutional sense unless the
defendant understands the charges to which he is pleading.
Moreover, it is "error, plain on the face of the record, for the
trial judge to accept petitioner's guilty plea without an
affirmative showing that it was intelligent and voluntary." Boykin
v. Alabama, 395 U.S. 238, 242 (1969).
To be guilty of malice murder, petitioner had either to intend
to deliberately kill the victim or have killed with "an abandoned
and malignant heart” where “no considerable provocation appears.”
Ga. Code Ann. 26-1101(a)(1978). Petitioner denied that he intended
to kill Fredger Stapleton immediately after arrest, St. Ex. 27,
50, 52, to his attorney prior to pleading, S. Hab. T. 38, and in
open court prior to being sentenced, Sen. T. 48. Although Moore
was under oath, neither the sentencing judge nor the District
Attorney asked him a single question to resolve the inconsistency
between his statement and his plea. 23/
His denial came at the end of plea and sentencing proceedings
in which the judge had neither: (a) read the indictment; (b) nor
accurately characterized the crime charged; (c) nor made any
attempt to explain a single element of the crime charged to the
defendant. Petitioner's plea, while perfectly consistent with the
judge's description of the crime, -- that he did "kill one Fredger
Stapleton with a certain pistol” (Arr. T. 1),-- was inconsistent
with the crime that the grand jury had charged him with committing
and for which he was convicted and sentenced to die.
The Constitution requires a knowing and intelligent plea. The
record before the sentencing judge demonstrated just the opposite.
It demonstrated that Moore did not understand the charge to which
*°/Under Georgia law, in order to be guilty of malice murder,
one has to either intend to deliberately kill or to have killed
with "an abandoned and malignant heart" where “no considerable
provocation appears." Ga. Code Ann. 26-1101(a)(1978). Moreover,
one cannot be convicted of intentional homicide when the evidence
of intent is derived from the accused's statement and that
statement admits to the killing, but "with the qualifying exclusion
of the necessary ingredient of intent, and where there was nothing
in the proofs submitted by the state which materially contradicted
the defendant's account of what occured, even though the
defendant's admission and his testimony may seem unreasonable.
Harrell v. State 108 Ga. App. 295, 296, 132 S.E. 2d 787, 788
(1963).
23
he was pleading. Had this case arisen in federal court, McCarthy
v. United States 394 U.S. 459 (1969) would demand reversal and
repleading without reference to any collateral proceedings.
The Seventh Circuit has applied the same rule to state court ptea
proceedings which affirmatively demonstrate that a defendant does
not understand the elements of the crime to which he is pleading.
Nash v. Israel 707 F. 2d 299 (7th Cir. 1983). However, the
Eleventh Circuit court rejected the federal standard, as well as
the approach of the Seventh Circuit. Instead, it erroneously
upheld defendant's plea based on his trial lawyer's vague testimony
at a state habeas proceeding held four years after his trial.
Moore II at 1525-26.
The McCarthy rule must apply to this capital case for
precisely the reason which led the Supreme Court to adopt it.
Later efforts to reconstruct what the defendant understood "in this
highly subjective area” are fraught with risk. As this Court has
noted, even shifting to the government the burden of proof on the
issue of knowledge would be of little value to the defendant. "No
matter how true these allegations [that the
defendant did not understand the charge] rarely, if ever, cana
defendant corroborate them in a post plea voluntariness hearing."
McCarthy v. United States, 394 U.S. at 469. Petitioner's
conviction, like McCarthy's, cannot be sustained by subsequent
findings because "...greater uncertainty is bound to exist since in
the resolution of disputed contentions problems of credibility and
reliability of memory cannot be avoided.” McCarthy v. United
States, id at 471 quoting Waddy v. Heer, 383 F 2d 789, 794 (6th
Cir. 1967).
This case involves a plea to a death penalty which accentuates
the need for the most reliable procedures. Zant v. Stephens,
Supra, 103 S.Ct. at 2747. A plea to a capital charge does more
than waive constitutional rights. The defendant who pleads guilty
foregoes the chance to avoid the death penalty by persuading the
factfinder that he is not guilty of a capital crime. For this very
reason, such pleas are rare. There have been but five such pleas
in Georgia since 1974. When they do occur, however, the Eighth and
Fourteenth Amendments demand an affirmative demonstration, on the
24
record of the sentencing proceedings, that the defendant, in fact,
understood the charge to which he pled. When, as here, that record
demonstrates a lack of understanding, the plea is void and cannot
be saved by reference to vague testimony at a collateral proceeding
held four years later when memories are dim and professional
reputations may be at stake.
In the vast number of non-capital cases resolved by plea, the
risk of an unreliable conviction may be tolerable because of
considerations of comity and administrative convenience. Due
process, in such cases, need not be the best practicable process.
In the rare case of a plea to a capital crime, however, “the risk
of an unwarranted conviction” must be held to an absolute minimum.
The "far more important need" for individualized treatment in
capital cases, recognized by Justice Burger in Lockett v. Ohio,
Supra, demands, as a matter of the Eighth and Pourteenth
Amendments, the best practicable process. Mr. Moore was not
afforded this and the defect cannot be cured by reference to
collateral proceedings.
This conviction must be reversed.
CONCLUSION
For the reasons advanced above, the petition for
certiorari should be granted and the decision below summarily
reversed or, in the alternative, this case should be set down
for briefing and argument.
Dated: January 12, 1984
w
@
wn
Le!
@
Q
laa
hh
ully submitted,
A
/
—— } / / /,
77 tu | LT
Daniel J. Givelber
Northeastern University School of Law
400 Huntington Avenue
Boston, Massachusetts 02115
(617) 437-3943
COUNSEL OF RECORD
DANIEL J. GIVELBER
DONALD H. BERMAN
Northeastern University School of Law
400 Huntington Avenue
Boston, Massachusetts 02115
(617) 437-3943
(617) 437-3346
ATTORNEYS FOR PETITIONER
26
83-6084
: Mnited States Court of Appeals
FOR THE ELEVENTH CIRCUIT
No. 81-7418
D.C. Docket No.cv478-309
WILLIAM NEAL MOORE,
Respondent,
Cross-Petitioner, ‘
versus
CHARLES BALKCOM, Warden,
ARTHUR K. BOLTON,
Attorney General, P
Petitioners,
Cross-Respondents.
Appeals from the United States District Court for the
Southern District of Georgia
Before HILL and HENDERSON, Circuit Judges, and CARZA*, Senior Circuit Judge.
JUDGMENT ON REHEARING
This cause came on to be heard on petitioners’ petition for rehearing;
ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court
that the opinion and judgment originally entered by this Court is withdrawn; and
the judgment of the er District Court appealed from is AFFIRMED IN PART and
REVERSED IN PART.
September 30, 1983
‘ED AS MANDATEé:
Al
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
~. 708 PUBLISH
WILLIAM NEAL MOORE,
Respondent,
Cross-Petitioner,
CHARLES BALKCOM, Warden
ARTHUR K. BOLTON, Attorney
* General,
Petitioners,
Cross~-Respondents.
Appeals from the United States District Court for the
Southern District of Georgia
(December 13, 1983)
ON PETITION POR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion September 30, 1983, llth Cir., 1983, P.2d )
Before HILL and HENDERSON, Circuit Judges, and GARZA*, Senior
Circuit Judge.
PER CURIAM:
* Honorable Reynaldo G. Garza, U.S.
Circuit Judge for the Fifth Circuit,
sitting by designation.
On petition for rehearing and suggestion for rehearing
en banc, Respondent-Cross Petitioner William Neal Moore asserts
that although the Supreme Court of Georgia considered all
mitigating circumstances, the sentencing judge considered only
Moore’s having made true statements and having cooperated with
officials. Moore also contends that the trial judge viewed the
death sentence as mandatory in this case and did not understand
that he possessed discretion to impose a life sentence.
In appraising these contentions, we have made a further
complete review of the sentencing proceeding and add the fol-
lowing to Part III of our opinion:
Judge McMillan properly considered all of the
evidence in mitigation before exercising his
Giscretion to impose death. The court
listened carefully throughout the presenta-
tion of mitigation evidence, asking each
witness questions,and concluding with each
_witness by asking whether he had anything
further to say. Moore's relatives testified
that Moore was a good boy who had never
before been in any serious trouble. Moore
testified at the sentencing hearing that he
shot and killed-the victim out of a combina-
tion of fright and intoxication. Then, the
sentencing judge further noted as additional
mitigating circumstances the fact of Moore's
truthfulness and cooperation. Furthermore,
Judge McMillan made it clear at _ the
sentencing proceeding that he understood and
accepted the mandate of Georgia law, as
announced in Coley v. State, 231 Ga. 829, 204
S.E.24 612 (1974), that he had discretion in
sentencing. We are satisfied that the court
considered all of the evidence offered in
mitigation before imposing death and are
satisfied that the court understood that it
possessed discretion to impose a life
sentence.
A3
With these additional observations, the petition for
rehearing is
DENIED.
Ho menber of this panel nor judge in regular service on
the court having requested that the court be polled on rehearing
en banc (Rule 35, Pederal Rules of Appellate Procedure; Eleventh
Circuit Rule 26), the suggestion for rehearing en banc is
DENIED.
“ei
William Neal MOORE, Respondent,
Cross-Petitioner,
bo mee
eer Mae oh tls
Charles BALKCOM, Warden, Arthur K.
Bolton, Attorney General, Petitioners,
* +Btens -Cross-Respondents. +
en Ne 8-4
United States Court of Appeals, ~
Eleventh Circuit.
“+> 2° "Sept 80, 1988:
-,..The United States District, Court for
the Southern District of Georgia, B. Avant
Edenfield, J., denied relief in habeas corpus
except as to death sentence. An appeal and
cross appeal were taken, and original deci-
sidn thereon was reported, 709 F.2d 1353.
On petition for rehearing and suggestion
for rehearing en banc, the Court of Ap-
peals, James C. Hill, Circuit Judge, held
that: (1) it is state’s responsibility to deter-
mine procedure to be used, if any, in sen-
tencing criminal to death, and federal habe-
as court should not undertake review of
state Supreme Court’s proportionality re-
view and, in effect, “get out the record” to
see if state court's findings of fact, their
conclusion based on review of similar cases,
was supported by the “evidence” in the
similar cases; (2) under Georgia law, once
sentencing authority has determined exist-
1512
EN a
sentencing authority possesses unbridled
discretion to determine, based on relevant
and accurate information, whether to im-
cannot be controlled; and (3) where Geor-
gia state court judge in determining wheth-
er. to impose capital punishment had found
statutory aggravating circumstance, it was
not improper for him to consider circum-
stance of particular case before him which
was not prescribed in the statute. -. -
Petition for rehearing granted; judg-
ment affirmed except as to granting of
relief from death sentence; —
eye ccnagrong 4.
t
L Homicide 355
Finding that defendant had cuales
capital offense, malice murder, while in
commission of another capital crime, armed
robbery, was alone sufficient to support
~ death sentence under Georgia law, and was
supported by the record. O.C.G.A §§ 16-
5-1, a (c), 17-10-35, 17-10-
8c). - F
ote Gate ont
Federal court in reviewing, in habeas
corpus proceeding, Georgia court's propor-
tionality review of death sentence would
examine only whether Georgia Supreme
Court had properly performed test assigned
to it under the Georgia statutes, and would
give great deference to Georgia Supreme
’ Court's method of conducting its propor-
tionality review. O.C.G.A. §§ 17-10-80(b),
(0X2), {c), 17-10-31; 17-10-35, 11-10-S{e),
3 Criminal Law’ i208.1()
+ It is for state government, as matter of
state ttstutery lew, subject to federal con-
stitutional constraints, to decide whether to
provide capital punishment mechanism and
to provide for appropriate procedural! safe-
guards, though federal habeas corpus court
must and should examine whether applica-
tion of approved sentencing procedures in
particular case creates substantial risk that
punishment has been inflicted in arbitrary ©
and capricious manner. 0.C.G.A. 4§ 17-
_
ae.
“he +.
116 FEDERAL REPORTER, 2d SERIES _
10-30), (bX2), (c), 17-10-31, 17-10-35, 17-
10-35(c); U.S.C_A. Const Amend. 6.
4. Habeas Corpus 90
It is state's responsibility to determine
procedure to be used, if any, in sentencing
criminal to death, «nd federal habeas court
should not undertake review of state Su-
preme Court's proportionality review and,
in effect, “get out the record” to see if state
court’s findings “of fact, their conclusion
based on review of similar cases, was sup-
“ported by “the™“evidence”’ in the similar
cases. OCGA $§ 55-0 I, (c), 17-
1038, 17-10-8(c). * — Be
z
& Habeas Corpus. 105 pen
~ Federal district court habeas.corpus re-
view of state-imposed death sentence re-
mains confined to whether state sentencing
procedure both-on its face and as applied
violated Eighth and Fourteenth Amend-
ments. U.S.C.A Const.Amends. 8, 14.
6. Criminal Law >1208.1(6)
Discretion need not be eliminated from
<apital punishment mechanisms, but, rath-
er, the Supreme Court has focused on chan-
neling discretion: to minimize risk of arbi-
trary decision making. 0.C.G.A. §§ 17-10-
80(bX2), (c), 17-10-35, 17-10-3Kc); US
C.A. Const. Amends. & 14 ~- >’
7. Criminal Law ¢=1208.1(4, 5)
9:
Under Georgia law, sentencing authori- -
ty possesses no discretion in either redefin-
ing crimes for which a defendant may be
sentenced to death or adding to list of ag-
gravating circumstances which make de |
fendant eligible for such sentence, but once —
sentencing authority has determined exis‘-
ence of statutory aggravating circumstance, |
sentencing authority possesses unbridicd
discretion to determine, based on relevant
and accurate information, whether to im-
pose death sentence, and such discretion
cannot be controlled. O.C.GA. §§ 17-10
BObX2), (c), 17-10-35, 17-10-385{e); US
CA. Const Amends. 8,14 , ..
& Criminal Law €=1208.1(5) -*-
Under Georgia law, sentencing authori-
ty, in determining whether to impose death
sentence, can assign what it deems appre
cumstances and, with unbridled considera-
tion of mitigating. circumstances, sentenc-
ing authority may consider something to be
mitigating that others might consider ag- ©
gravating, and different sentencing author-
ities can assign different weights to same
aggravating circumstances, since Constitu-
tion does not assign specific weights to dif-
ferent aggravating or circum-
mitigating
stances. OCGA §§ 17-10-30(bY{2), {),
17-10-35, 17-10-85(c).: sobhp eT - in
9. Crimina) Law 1147 ~ Se
‘ Dinstion hte fo Guorga’ Bigesins
_ Court's review of capital cases, and court
exercises discretion in determining whether
death senterice ‘was imposed under influ-
ence of passion, prejudice or other arbitrary
. factors and in selecting “similar cases” for
. its proportionality review. os 17-
10-30(c), 17-10-35. 2
10. Criminal Law 9=1208.1(5) er .
~ Where Georgia state court: judge, in
determining whether to impose capital pun-
ishment, had found statutory aggravating
circumstance, it'was not improper for him
to consider circumstance of particular case
before him which was'not prescribed in the
- Statute. OCGA. § 17-10-2 | a
t -
BY, Hitt mest
‘1L Crisinal Law =1208.1(5) 3 ~ ont
tory i
tion of murder and robbery as so iggravat-
ing’ crime 23 to: outweigh all mitigating
ins was no constitutional error... 0.C.G_A.
§§ 17-10-30, 17-10-30(b), (bX2), (c), 17-
10-81, 17-10-35, 17-10-85(a, ¢); USCA
ConstAmend 6
12. Habeas Corpus ¢85.3(2)
Federal district court in habeas corpus
proceeding properly used testimony re-
ceived from petitioner and his counsel at
state habeas proceeding in addressing issue
ad . =. s
prewt nyt192 MOORE v. BALKCOM::9 Seis”
; (Chto as 716 F.24 151) (1983) e
gciate weight > gutter attains de
whether plea was a and voluntary.
BUSCA. § 254d). tet
13 Criminal Law €>273.1(4)" °°
-~State trial courts need not’specifically
address each individual element required
under state statute in order to accept guilty
plea but, rather, judge need only explain
statute sufficiently to give defendant real
and adequate notice of nature of charge
porate malay sg tag rn ny
District court in habeas corpus proceed-
ing properly relied upon written factual .
determinations of state habeas corpus court
after full evidentiary hearing in concluding
that petitioner had been aware of his right
to withdraw his plea and made reasoned
decision not to do so, as against petitioner’s
own testimony that he had been unaware of
such right 28 US.CA § 2254(d).
15. Criminal Law ¢=64L13(7) .. -.
Decision by defendant and his counsel
to seek relief on appeal rather than to with-
draw plea represented strategic decision
and, absent showing of exceptional Circum-
stances, defendant was provided with effec-
tive assistance of ana USCA. Const.
> we
_Amend. 6.
16. Criminal Law ¢>1088.12 obras.
but granting or denial of leave to amend
and
lies within discretion of trial court
subject to reversal only for abuse.
Rules Civ.Proc_Rule 1a), 23 USCA;
US.CA. § 2254(d).
* Judge. Reine
18. Habeas Corpus 56 a
Futility was proper ground upon which
to deny proposed amendment of petition for
habeas corpus relief. 2 USCA
§ 22548) .
Charles E. Brown, George M.- Weaver,
- Atlanta, Ga, for petitioners, cross-respon-
dents. *-.-< ~: .-
. _ Professor Daniel J. Givelber, Northeast-
ern University School of Law,” Professor
. Donald Berman, Boston, Mass, for respon -
’ dent, cross-petitioner. - . > g/a2.*.
«Appeals from the United States District
Court for the Southern District of Georgia
eT a. “SRicl-f
‘ON PETITION FOR REHEARING AND
-** SUGGESTION FOR REHEARING
ER oh
(Opinion June 23, 1983, 11 Cir., 1983,
© ll. - $09 F.2d 1353) id fase
’ -” Before HILL and RENDERSON, Circuit
Judges, and GARZA*, Senior Circuit
JAMES C. HILL, Cireuit Judge:
The petition for rehearing is granted.
The prior panel opinion, issued June 23,
1983, is withdrawn and the following opin-
ion is substituted in its place. -° -
Petitioner, William Neal Moore, was con-
victed of malice murder and armed robbery
in the Superior Court of Jefferson County,
. Georgia and sentenced to death Both par-
ties to this habeas corpus action raise nu-
merous issues in this appeal and cross-ap-
pe2l. We conclude that the district court
correctly denied petitioner’ relief on his
claims that he was unconstitutionally con-
~ vieted on the basis of an unknowing plea to ;
malice murder, that h- was denied effective
assistance of counsel, and that the failure to
transcribe closing arguments deprived him
of a constitutionally adequate review of his
death sentence. In our prior opinion, we
— concluded that the trial court had commit-
- © Honorable Reynaldo G.” “Garza, US. Circuit
- Judge for the Fifth Circuit, sitting by designa-
A8
1514. .._ - 116 FEDERAL REPORTER, 24 SERIES
ted constitutional error in imposing th
death sentence on the basis of nonstatut,—
aggravating circumstances. In Zant y. ¢.,.
phens, — US. —, 103 SCL 2m, =
L.Ed2d 235 (1983), the Supreme Court «+.
’ dressed the issue of whether a death pea.i.
ty imposed under the Georgia death penal;,
scheme based on three statutory aggrava:.
ing circumstances, one of which was sulw.
quently held to be invalid by the Georg,
Supreme Court, can be constitutionally y;.
held. . The Court held that the narrowinz
function of statutory aggravating factors y
achieved when the sentence is supported L,
at least one statutory aggravating circum.
stance. This decision controls, and is con.
trary to,.our previous conclusion that th
sentence must be vacated. Accordingly, «x
reverse the judgment of the district court
on this issue. © 322"
_* L. Procedural History
A state grand jury indicted petitioner for
the April 2, 1974 malice murder and arma!
robbery of Fredger Stapleton. At a hear-
-ing conducted by Judge Walter C. McMMil-
lan, Jr. on June 4, 1974, petitioner waived
his right to a jury trial with respect to both
guilt and sentence and entered a plea of
guilty to all charges. At the sentencing
hearing, Judge McMillan sentenced the pe-
titioner to death. ; i
*' The Georgia Supreme Court conducted its
mandatory review of the death sentence in
accordance with the Georgia statutory pro-
cedure~- GaCode Ann. § 17-10-35 (192)
(formerly Ga.Code*Ann. § 27-2537). The
court affirmed petitioner's conviction and
sentence in a per curiam opinion, with one
judge dissenting, and denied Moore's peti-
tion for rehesring.’* Moore v. Stato, 233 Ga
861, 213 S.E2d 829 (1975). The United
States Supreme Court denied Moore's pct
tion for certiorari” Moore v. Georgia, 43
US. 910, 9 “SCt $222, 49 LEd2d 1218
(1976).
Moore then filed a declaratory judgment
‘action in state court seeking a new sentenc-
asus
Bn re - 2 -
“i... 0th’? on &° é
* MOORE vy. BALKCOM 7.2% *-*
Cite a3 716 F.24 1511 (1983) .
ing proceeding. “The court denied relief and
the Georgia Supreme Court affirmed
Moore v. State, 239 Ga. 67, 235 S.E.2d 519
(1977). The United States Supreme Court
denied certiorari-' Moore v. Georgia, 434
U.S. 878, 98 S.Ct. 232, 54 L.Ed. 2d 159 (1977.
Moore then brought a habeas cor, == =
in state court. . The court denied all-relief -
Moore's application for a certificate of prob-
able cause to appeal = wise.
Petitioner filed the present habeas corpus
action on November 23, 1978 in the federal
ae ote -~ Facts P = +
At the time of Fredger Stapleton’s death,
Moore was an enlisted man in the United
_ 1515 ~
HoWever; he armed himself with a .38 cali-
ber pistol in case he met opposition in his -
‘robbery attempt. Moore claims that he did 4
not intend to kill Stapleton. - *°7>"- =.
“Moore claims that Stapleton confronted
him with ashotgun. Stapleton fired a shot-
gun blast at Moore which missed. Staple- -
ton then hit Moore in the leg with the gun»
barrel. Petitioner then fired four or five
shots at Stapleton, who was hit and killed
by two bullets which struck him in the .-
chest. RE. Me neonns’
After the shooting, Moore removed two
billfolds from the victim's pockets and took
the shotgun. The money taken from: Sta-
pleton totaled approximately $5700. Moore
was subsequently arrested and cooperated
with the police during the investigation. ~
Sil? SO So* o > «
ptt ag
-
. A. Imposition of Sentence
: The district court, holding that the Geor-
gia Supreme Court did not properly dis-
charge its statutory duty of ‘appellate re-
view, concluded that the imposition of the
. death penalty in this case “shocks the con- -
science” and granted relief with regard to
sentence. Under the Georgia system, the
sentencing authority, either a judge or a
jury, may impose the death sentence when
it finds the existence of a statutory aggra-
vating circumstance.' Ga.Code Ann. § 17-
i
t
i
|
tis
it
i
HT
:
:
i
i
;
iu 3
:
{
ef
|
F
|
or fireman while engaged in the performance of
1516
10-31 (1982) (formerly Ga.Code Ann. § 26-
3102). If the sentencing authority elects to
impose the death penalty, it must specify
the ing circumstance which it
found a reasonable doubt. Ga Code
Ann. § 17-10-30({c) (1982) (formerly Ga
Code Ann. § 27-2534.1(c). - Whenever the
’ death penalty is imposed, the Georgia Su-
* preme Court must conduct an expedited
review of the case. Ga Code Ann. § 17-10—
85 (1982) (formerly GaCode Ann. § 27-—
2537). In reviewing the sentence, the court
must determine whether the sentence was -
‘+> imposed “under: the influence of passion, —
: prejudice, or any other arbitrary factor,”
whether the evidence supports the finding
of a statutory cireumstance,
aggravating
_ and “whether the sentence of death is ex- ~
cessive or disproportionate to the penalty ~
imposed in similar cases, considering both
thé crime and the defendant.” GaCode
Ann. § 17-10-35(c) (1982) ae ™
Code Ann. § 27-2537(c)). .
-[1] In the case at bar, Judge MeMillai 55 that I made iy 3, om
sentenced Moore to death after finding that
petitioner had committed a capital offense,
malice marder, while in the commission’ of
another capital crime, armed robbery. This.
finding was itself sufficient to support a
death sentence under Georgia law and was
by the record. See GaCode Anno
§ 17-10-80(bX2) (1982) "(formerly GaCode
Ann. § 27-2534. 1(bX2)). . After reading his
order and announcing the sentence which
+ he imposed? Judge McMillan continued:
“* “ [For the purposes of this Court, for
and to be in-a bome, and -
man was asleep, I don't
any person to be, not this
H
ze
atts
z
i
(une
Hie
Te
(1982) (formerly
oP
rf
AF
“-
‘man, but any person, to be asleep in his
home, to be invaded by an intruder, that’s
armed with weapons, that’s prepared nec-—
essarily to kill (or otherwise the weapons
wouldn't be there in the hands of the
intruder), is probably an invasion of the
highest injustice that another can do.
Now, I can only imagine that anyone that
is invaded by an intruder with an armed
’ weapon, the fear that they must go
* through when they are encountered in
_FSuch a situation. So I feel like that if the
* Court ever does require mandatory pun- .
‘ jshment—that -is when ‘they specify by
‘saw what offenses will have to be suf-
~ fered by the electric chair—that one of -
these statutory offenses probably will be
. that when a person is robbed and killed in
his home, that mandatory, as contrasted
to. discretionary, statutory aggravated
circumstances will probably warrant the
electric chair without life imprisonment.
* ‘That justifies me in making the finding
garnte *
* In granting relief from the sentence, the
district court found that the sentence was
based primarily on the location of the kill-
ing, Stapleton’s home, and not on the pres-
ence of the aggravating circumstance artic-
ulated in the trial judge's order,’ The dis-
trict court concluded that the Georgia Su-
preme Court violated its statutory duty to
review “similar cases” by focusing on cases
involving different circumstances. In the
district court's view, “similar cases” would
be those involving killing in the home. The
district court engaged in its own -propor-
tionality review on this basis and concluded
that the death penalty, in the case at bar
. “shocked the conscience.”
4 ettege—a
“RB. District Court's Analysis
na Judge” Edenfield ‘held that the
death penalty was unconstitutionally im-
posed in this case after concluding that the
2. Judge McMillan made his comments after he
~ bad read his order which cites only one statuto-
“Ty aggrevating circumstance as the basis for
* the sentence. He had not concluded the sen-
. tencing proceeding and his remarks should
therefore be viewed as part of the proceedings.
Alo
Re
Gregg v. Georgia, 428 U.S. at 224, 96 S.Ct
at 2948 (White, J., joined by Burger, CJ.,
* and Rehnquist, J., ‘concurring); see Zant v.
Stephens, 108 S.Ct. at 2744
As a federal court reviewing - collateral
attack on a state prosecution, we must give
great deference to the Georgia Supreme -
. Court’s method of ‘conducting its propor-
tionality review.- See Barefoot v. Estelle, j
—="US ——, 103 S.Ct 8383, 3391, 77
L.E424 1090 (1983)-“The role of federal
courts are not forums in which to relitigate
state trials” Jd. It.is the decision of.the -
state government as a matter of state stat-
utory law, subject to federal constitutional
’ constraints, to decide. whether or not. to
provide a capital ‘punishment mechanism
and to provide for appropriate procedural -
safeguards. See California vy. Ramos, —~
US.-——;. 108 _S.Ct*.3446, 3451-53,> 77
L.E4.24 1171 (1983); “Zant v. Stephens, 108°
S.Ct. at 2743-44; Eddings v. Oklahoma, 455
US.:104, 127-28, 102 S.Ct: 869, 882-83,-71
| LEA24 1 (1982) (Burger, C.J., joined’ by
White, Blackmun, aid Rehnquist, JJ., dis- -
senting); Godfrey v. Georgia, 446 U.S. 420,
3. We do not decide whether the Supreme Court
some type of proportionality
vis v. Pulley, 692 F.2d 1189, 1196-97 (9th Cir.
i
E
I
:
f
to authorize capital punishment it has a
constitutional responsibility to tailor and
apply its law in a manner that avoids the
arbitrary and capricious infliction of the
death penalty”), Wainwright v. Spenkelink,
442 US. 901, 13, 99 SCL 2421, 2422, ©
~ LEd.2d, 1075 (1979) (Rehnquist, J., dissent-
v. Louisiana, 428 -US...825, 337, 96 S.Ct.
8001, 3008, 49 L.Ed.2d 974 (1976) (White, J.,
joined by Burger, CJ., Blackmun and Rehn-
‘quist, JJ., dissenting). Federal habeas
courts must and should examine whether
the application of approved sentencing pro-
cedures in a particular’ case creates a sub-
stantial risk that the punishment has been
(1982), Eddings v, Oklahoma, 455 U.S. 104,
102 S.Ct. 869, 71 LEd2d 1 (1982); Godfrey
y. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
LEd2d 398 (1980); Gregg v. Georgia, 428
US. 153, 96 S.Ct 2909, 49 LEd2d 859
(1976); Spinkellink v. Wainwright, 578 F.2d
582, 604 (Sth Cir.1978), cert. denied, 440 US.
976, 99 S.Ct, 1548, 59 LEd2d 796 (1976).
- This court concluded in Spinkellink v.
Wainwright that a federal habeas court
generally cannot reexamine the proportion-
ality review performed by a state appellate
court in = capital case. 578 F.2d at 4. -
had contended that his crime,
alty cases, was insufficiently gruesome or
heinous to warrant the death penalty, id at
602, and had highlighted seven other cases
in which the Florida Supreme Court had
1982), cert. granted, —— US. —-, 103 S.C
1425, 75 LEd2d 787 (1983) (No. 82-1095);
Williams v. Maggio, 679 F.2d 381, 395 Gth
Cir. 1982) (en banc)
| ‘=. our conclusion would be no more, nor no
- Jess, accurate’ Such is the human condi-
JTS. sa
patently unjust and would shock the
‘seience” Id at 606n 2B.
ducted by the Georgia Supreme Court in
this case reached a result! so extreme as to.
“shock the conscience.” Blake v. Zant, 513
F.Supp. 772 at 812 Looking at -Judge
McMillan’s comment, the district court con-
ou GB Pe” Pees Be tu 3»
4 Ina sense, Moore's argument provides a sig-
Spinkellink
I
:
|
input
gent
a3
cs
Al2
Gn
eumstance found in Judge McMillan’s order.
In the district court’s view, the :
= [A] We hold that the district court erred
in conducting ,its own proportionality re-
undertake a review of the state supreme
court’s proportionality review and, in effect,
“get out the record” to see if the state
court’s’ findings’ df “fact; their ‘conclusion
based on a review of similar cases, was
adequate safeguard against the freakish
imposition of capital punishment’
have suggested different methods of defining
‘S “similar cases.” In State v. Copeland, S.C, 300
) S£.24 63 (1982), the South Carolina Supreme
Gregg v.: Cusine: 00 Oh..'an, 96-S.Ce_
2909, 49 - 859. (1976); «Proffitt -v.
Florida, 428 US. 242; 96-S.Ct.. 2960,'49
L.Ed.2d 913 (1976). While-we may have ~
reached ‘ a~ different - conclusion -regarding -
the proportionality of the sentence had we--
conducted a “comparison, we.
cannot conclude that the Georgia Supreme.
Court’s ‘review or the -result jt reached
ene te geeed wee aad
TTL "Cee GH
c. ‘Judge McMillan’s Lexpention can
"the Death Sentence : -i-
In Gat Gegheal pained oplaion, we cinchad’
ed that the sentencing judge committed
constitutional error by considering 2 pon -
statutory ‘aggravating factor in. imposing
the death . Moore v. Balkcom, 709
E556 MOORE ¥2BALKCOM 737-5%> ° aE:
: . Chto as 716 F.2d 151) (1983)
of the nonstatutory aggravating factor con- -
death sentence. .
es eek et Rene % Genk, ob Sa
1519
sidered by Judge Dicbillan j in es the
iy
US. 238, 92 SCt 2726, 33 -LEd2d 346
(1971), and its progeny has been that unbri--
dled discretion in death penalty procedures
leading to imposition of the sentence in a
discriminatory, arbitrary;:or ~ capricious ©
~~ manner is uhconstitutional . See Zant “V7.
~*: Stephens, 103 S.Ct. at 2746-47; Gardner v: -
Florida, 430 U.S. 349, 358, 97 S.Ct. 1197,
1204-05, 51 L_Ed.2d 393 (1977) (Stevens, J;
joined by Stewart and Powell, JJ.); Gregg ~
v. Georgia, 423 U.S. 153,..188-89, 96 S.Ct
2909, 2932-33, 49 L.Ed.2d 859 (1976) (Stew- .
_ art, J., joined by Powell and Stevens, JJ.)
(“Furman mandates that where discretion
is.afforded a-sentencing body on a matter
80 grave as the determination of whether a
human life should be taken or spared, that
discretion must be suitably directed and
limited so as to minimize the risk of wholly
arbitrary and capricious action); id. at 199,
96 S.Ct. at 2937 (existence of discretionary
stage does not invalidate Georgia proce-
dure); id. at 220-23, 96 S.Ct at 2947-48
(White, J.,: joined by Burger, CJ., and
Rehnquist, J., concurring); Proffitt v. Flori-
da, 423 US. 242, 252-54, 96 S.Ct 2960,
2966-67, 49 L.Bd.2d 913 (1976) (Stewart, J.,
joined by Powell and Stevens, JJ.); id. at
258, 96 S.Ct. at 2969 (“the requirements of
Furman are satisfied when the sentencing
authority's discretion is guided and chan- -
neled by requiring examination of specific
factors that argue in favor of or against
” imposition of the death penalty, thus elimi-
science, we would be required to remand the
_ case to allow the state court to resentence the
Wainwright, 578 F.2d at 606 n 28
7. The Supreme Court rendered its decision in
Stephens on June 22, 1983. We issued our
original opinion in this case on June 23, 1983.
7.4
1520 :
in its imposition”); Jurek v. Texas, 3 US.
262, 270-74, 96: S.Ct. 2950, 2955-57, 49
L.Ed.2d 929 (1976) (Stewart, J., joined by
. Powell and Stevens, JJ.) (“the Texas capi-.
tal-sentencing procedure guides and focuses
"the ‘jury's objective consideration of the
‘particularized circumstance of the individu-
al offense and the individua] offender be-
fore it can impose a sentence of death”).
“N6] These and subsequent cases have
emphasized ‘that. discretion need not be
eliminated from cafital punishment mecha-
nisms; rather, the Supreme Court has fo- .
-eused on’ channeling discretion to minimize
the risk of arbitrary decision making. E.g.,
Eddings ‘v. Oklahoma, 455 U.S. 104, 110-15, {
102 S.Ct. 869, 874-76, 71 L_Ed.2d 1 (1982);
~ Godfrey v. Georgia, 446 U.S. 420, 427-23,
. 100 S.Ct. 1759, 1764-65, 64. LEd2d 398
- (1980) (Stewart, J., joined by Blackmun,
“Powell, and Stevens, JJ.); Lockett v. Ohio;
- 438 U.S. 586, 605, 98 S.Ct 2954, 2965, 57
973 (1978) (plurality opinion);
Gardner v. Florida, 430 -U.S..349, 358, 97
S.Ct. 1197, 1204-05, 51 L.Ed2d 393 (1977)
(Stevens, J., joined by Stewart and Powell,
JJ.), Gregg v. Georgia, 428 US. at 188-89,
96 S.Ct. at 2932-83 (Stewart, J., joined by”
Powell and Stevens, JJ.); Proffitt v. Flori-
_ da, 42 US. at 258, 96 S.Ct. at 2969 (Stew-
at 248-49 & on. 11, 92 S.Ct at 2731-82 4 n
11 (Douglas, J., concurring); id at 309-10,
92 S.Ct at 2762-63 (Stewart, J, coneur-
ring); Mat OE, SB ROR. of S108 (WAG, Cs
mitigating circumstances would result in
» arbitrary and capricious death sentences
. Moreover, I greatly fear that the effect of
~... the Court's decision today will be to compel
constitutionally a restoration of the state of
affairs ‘at the time Furman was decided,
“ “Swhere the death penalty is imposed so errati-
cally and the threat of execution is so attenu-
ated for even the most atrocious murders
©" that “its imposition would then be the point- ~
‘Jess and needless extinction of life with only
* marginal contributions to any discernible so
D die dal or
716 FEDERAL’ — 2 SERIES
ceaaniail Furman requires only that
sentencing discretion “be ‘directed and lim-
ited,’ so that the death penalty [is] imposed
in a more consistent and rational manner
and so that there {is] a ‘meaningful basis
for distinguishing the . .; cases in which it
is imposed from .....the many cases in
which it is not.’ Lockett v. Ohio, 438 U.S.
at 601, 98 S.Ct at 2963 (quoting Gregg v.
Georgia, 428 US. at 188-89,,96 S.Ct. at
2932). In Lockett, the Court ‘broadened the —
sentencing authority's discretion to allow
consideration of all mitigating circumstanc-
es.in making. the individualized sentencing |
avers gee ae
. .
erts. SAHNI: 22+ -ae-dens. =
;, The Supreme Court's scentanet of Cems.
tion in capita] sentencing reflects an inher-
ent tension between , the requirement of in- |
dividualized sentencing and objective stan-
dards. By approving the Georgia capital
punishment procedure under which no per-
son might be sentenced to death: unless
found guilty of a statutorily defined capital
- offense under circumstances specified by ;
the legislature as aggravating .the crime,
the Court undertook to eliminate discretion |
(other than the inherent pardoning power |
of an American jury) in finding the defend-
ant eligible for the death penalty. By de- |
pouncing mandatory death ~penalties in
Woodson and requiring that the sentencing
authority be free to consider any mitigating
circumstances, statutory or not, in Lockett,
the Court emphasized the importance of
individualized consideration of each defend-
ant and :all circumstances,» in> deciding
whether or not to. impose a sentence less
than death — In Zant v. Stephens, — US.
public purposes.” . Furman ¥. Georgia,
= Supra {408 US), at 312 [82 S.C. at 2764)
~~ (White, J., concurring). ..By requiring as a
-r_» Matter of constitutional law that sentencing
c-~ authorities be permitied to consider and in
i their discretion to act upon any and all miti-
gating circumstances the Court permits them
to refuse to impose the death penalty no
irs matter what the circurnstances of the crime.
<-> This invites a return to the pre-Furman days
* when the death penalty was generally re- |
eee ee
has least consideration. -
* 438 US. at 623, 98 SCL at 2983.
-,
Cite as 716 F.24 1511 (1983)
—. , 108 S.Ct.-2783, 77 LBd2d 285 (1983),
; the Supreme Court noted that “two themes.
guided the concern with eliminating arbi-_
trariness in: capital. sentencing; First, the
Court noted-that-no perfect procedure ex- .
__ ists for deciding in.which cases governmen-
‘tal authority- should be. uséd -to- impose
death.” Id. at 2747 (citing Lockett v. Ohio,
~~» 438 US. at 605,98 S.Ct at 2965 (plurality :
opinion))....Second, the Court recognized °
Cat essen ie a 0 quieting Sitter
. ence between and any other permissi-
. ble form-of punisixment, ‘there is a corre. -
sponding difference in the need for reliabili-
ty in the determuation that death is the
punish:nent in a specific case.’”
- &ppropriate
- Id. (citing Wopdson v.North Carolina, 423_
US. at 305, 96 S.Ct:at 2991 (Stewart, J,
’ Joined by Powell and Stevens, JJ.)). In
determining whether Judge McMillan con-
_ ‘Stitutionally imposed Moore’s death sen-
tence, we do net substitute our judgment’
-- on the sentence. Rather, we examine
- whether Judge McMillan properly examined
_the factors surrounding the crime, carefully
considering - all mitigating - circumstances,
before exercising his discretion in a proper- -
ly channeled fashion in making the awe--
some sentencing decision in accordance with
& constitutional capital punishment mecha-
nism. - “hee ¢ re nial 25 BN
Ay “The Georgia death penalty system
has channeled discretion to certain limited
areas. See generally Zant v. Stephens, 250
“te Ga. 97, 297 SE.2d 1 (1982). The defendant
must have'been accused and convicted of
committing’ a crime for which the state
allows imposition of the death penalty in
tion of cruet and unusual punishment. See
Coker v. Georgiz, 433 U.S. 584; 591-98, 97
S.Ct. 2861, 2865-69, 53 L.Ed 2d ‘982 (1977)
| (White, J, joined by Stewart, Blackmun,
ee eer
against mitigating circumstances.
Goodwin v. Balkcom, 684 F.2d 734, 801-02
(1 1th Cir. 1982), cert. denied, — U.S. ——, 103
S.Ct. 1798, 76 LEd 2d 364 (1983). Compare
Ga.Code Ann. § 17-10-31 (1982) (formeriy Ga.
§ 26-3102) Fla Stat Ann.
Code Ann. with
Stage “2 MOORE veBALKCOMA#™: 3. Se. 1621 - 7
{
:
. which might be capricious is. denounced,
deserves serious punishment, the death pen .*!
alty, which is unique in its-severity and >
irreversibility, is an excessive penalty for ~
the rapist who does not take a human life).
In ‘order ‘absolutely to structure discretion ~~ |
. while not requiring mandatory death’ sen- -
tences, Georgia’ has strictly limited the ap~ -
plication of the death sentence to cases. *
whére the séntencing authority finds-the
existence of certain enumerated statutorily ;
suthorized aggravating circumstances. “The
sentencing authority potsesses no discretion.
in either redefining the trimes for which a ott
defendant may be sentenced to death or z
adding-to the list of aggravating circum- *
stances which make a defendant eligible for
such sentence. Once the sentencing author-
ity has determined the existence of a statu-'
tory aggravating circumstance, the defend-
-ant becomes eligible for a capital sentence.
When this stage has been reached, the sen-
tencing authority possesses unbridled dis-
cretion to determine, bared on relevant and
accurate information, whether to impose a -
death sentence.’ This discretion cannot be
controlled if the decision-maker is to make >
an individualized decision at this eligibility
level. See Eddings v..Oklahoma, 455 U.S.
at 123-28, 102 S.Ct. at 880-83 (Burger, CJ,
joined by White, Blackmun, and Rehnquist,
JJ., dissenting)... The sentencing authority
possesses unbridled discretion to consider —
any perceived mitigating circumstances.
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,
57 L.Ed.2¢ 973 (1978). While discretion to
impose the death penalty for any reason
- Furman v. Georgia, 08 US. 238, 92 S.Ct
2726, 33 L.Ed.2d 346 (1971), it now appears
authority can assign what it deems the ap- '
propriate weight to particular mitigating
$4 921.141(2\(0) and (c). Both systems, how- --
- circumstances. Mercover: sith enteilied
consideration of mitigating circumstances
» . the sentencing. authority may consider
something. to be mitigating that others
might consider aggravating. Some might
- say that a stable family background is miti-
~ gating; others might reasonably say that
ree te 103
pag cr fama -r See also
~ convictions and pleas of guilty or pleas of
nolo contendere of the defendant, or the
egg cine gc pp
once” “oc Lest -* team, gee oe
Ga.Code Ann. § 17-10-2 (1982) (Formerly
Ga.Code Ann. § 27-2503). - The sentencer
may pot rely on misinformation of constitu-
tional magnitade such as prior uncounseled
convictions that were unconstitutionally im-
. Stephens, 103 S.Ct. at 2748
n. 23. Similarly; the sentencer cannot apply
cu
._ Bot been “freakishly”
“TN6 FEDERAL REPORTER, 24 SERIES
are constitutionally impermissible Or total;
irrelevant to the sentencing process, such .,
for example the race, religion, or politica
affiliation of the defendant” or “conduc
that actually should militate in favor of ,
lesser penalty, such as perhaps the defend.
ant’s mental illness.” “Jd. at 2747 (citations
omitted).-" The sentencer also does not pos |
sess diséreticn to impose the death penalty
based.on nonstatutory aggravating circum.
: stances which preclude the consideration of
mitigating circumstanées“ © See ‘Eddings y,
Oklahoma, 455 U.S. at 113-15; 102 S.Ct at
875-76" (“{jjust as the-’state may not by
statute preclude the -sentencer from con-
sidering any mitigating factor, neither may
the sentencer refuse to ‘cOnsider, as 2 mat-
ter of law, any relevant t mitigating cireum-
stances”) (emphasis in original); Lockett v.
Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L_Ed.24
973 (1978). Reliance on any of these factors
would invalidate the death sentence.
(9). S Diseretion exists in the Georgia So-
preme Court's review of.capital cases. The
court exercises discretion in determining
whether. the death sentence: was imposed
‘under the influence of passion, prejudice, or
other arbitrary factors and in selecting the
“similar cases” for its proportionality re-
view. See Ga. Code Ann. § 17-10-35 (1982)
(formerly Ga.Code Ann. .§ 27-2537). Such
discretion is necessary if the Georgia Su-
preme Court is to serve as a clearinghouse
of all cases in which the death penalty has
been imposed pursuant to the Georgia pro-
cedure and to ensure that the sentence has
See God-
frey v. Georgia, 446 US. at 427, 100 S.Ct at
1764 (Stewart, J., joined by Blackmun, Pow-
ell, Stevens, JJ.); Gregg v“ Georgia, 428
US. at 188-89, 96 S.Ct at 2932-33 (Stew-
art, J. joined by Powell & Stevens, JJ.)
- Inthe case at bar, Judge McMillan, bad
the duty to examine the aggravating and
mitigating circumstances..He considered
both the commission of armed robbery and
the ‘location of the murder—the victim's
home-—in reaching his sentencing decision."
"TI the Court ever does fequire mandatory
punishment-—that ts when they specity Dy
Al6
“4 t-”
i ae | SERS MOORE #'BALKCOM 2 2°7, +.
ee Cite 29 716 F.24 1511 (1983) °
r-4
i Ons might sontirei Sule tallidenhs sate
. ment as both-an explanation of why he
viewed armed robbery-in this case to be a~
sufficient reason to authorize and require
him to impose the death penalty and a
description of his thought process.in evalu-
ating the statutory aggravating factors"!
Close examination of. Judge McMillan’s
statement reveals, however, that he estab-_
, lished. a fuirther‘and different nonstatutory
aetucti taitthees ron a:
mitted in thé victim's home ~
[10) “Judge MeMiilian “ rie
-ience'ipon the weight ho fal this ress
stance deserved. This sentence was: im-
posed in 1974, when many scholars anticipa-
ted that’the channeling of discretion would
iead - to” “jts “elimination,” so that certzin
crimes’ under ‘certain circumstances would.
carry a mandatory death sentence. He pre-
dicted that this crime, “: ..- when a person
is’ robbed and-killed: in his own home ...
would be such a crime.” Although his pre-
diction at that time was consistent with
that of other scholars, later cases teach us
that it was faulty. Woodson v. North Caro-
lina, 428 US. at 302, 96 S.Ct. at 2990 (Stew-
art, J; joined by Powell and Stevens, JJ.)
(mandatory statutes enacted in response to
Furman have simply papered over the prob-
. gs
(1976) (Stewart, J.; joined by Powel ‘and
Stevens, JJ.). He expressed his considera-"
Gen tifa cleciatansn af Gheshitadier eite:-
before him which was not prescribed in the
statute.--It being clear that he did find a
statutory’ aggravating circumstance, Ste-
phens teaches that this additional considera-.
tion, channelled to the nature of the partio- ”
ular crime, was not improper. “~
Our interpretation of Judge saben ae
statement as involving a nonstatutory cir-
cumstance is consistent with this court's
* decision in Goode v. Wainwright, 704 F.2d
593 (llth Cir.1983). In. Goode, the trial
-judge, after the Florida jury had recom-
. mended death, listed three aggravating cir-
‘cumstances and two mitigating circum-
stances and stated that the mitigating cir-
cumstances did not outweigh the aggravat-
ing circumstances. Jd. at 604. He justified
his sentencing of Goode to death by stating
that “there are certain cases and certain
times when we can no longer help, we can
no longer rehabilitate, and there are certain
people, and Arthur Goode is one of them,
~ that’s actions demand that society respond
and all we can do is exterminate.” Id. He
concluded that a. death sentence would -
“guarantee society, atleast as far as it
relates to this man,’... that he will never
again kill, maim, torture, or harm another
_ human being.” Id’ The court of appeals
S.Ct. at 2983 nn. 7 and 8, 2985 n. 25.
Al?
-
- 1524 -
—"
; antunia that these statements indicated
that the trial judge had improperly relied
on a nonstatutory aggravating circum- ©
stance—impossibility of rehabilitation—and
granted habeas relief. As the Court found
in Goode upon examining the trial judge's
"statement, we conclude that Judge McMil- - '
Jan justified his sentence, statutory eligibili-
:ty.having been established, on a ponstatutc- Ke.
7
Ps he a9 safes acet os en
he * "Since consideration of a nonstatutory ag-_
<2. gravating factor does not automatically in-: 3
_ Validate a’death sentence, Barclay v. Flori-
” da*—= US. ——, 103 S.Ct 3418-77
LEd2d 1134 (1983); "Zant v. Stephens, —
7" US! —, 108° S.Ct. 2733,°77 LEA2d 235
+ (1983),‘we must determine whetber the fac- -
—_ .
-
tor applied in this case violated the consti-
‘tution. Moore asserts that Judge McMillan
viewed the location of the murder, the vic- -
: timi’s home, as precluding, a8 2 matter of
‘law, consideration of any relevant mitigat-
ing circumstances. See Eddings v. Oklaho-
gy 102 S.Ct. 869, 71 L.Ed.2d 1
- (1982). In Eddings the trial judge stated:
“Nor can the court in following the law, in
my opinion, consider the fact of this young ©
-“¢nan’s violent background.” Jd. at 109, 102
S.Ct at 873. The Supreme Court empha-
- sized that though the Oklahoma Court of
Criminal Appeals agreed with the trial
. court that “only the fact of Edding’s youth
See ee
cumstance.” Id.
Shes dain on Shai Sean é cchitnatilty
different situation Judge McMillan stated
_, that in bis view fn 1976 perder and robbery
‘ in the home would, ultimately, require
“mandatory... statutory aggravated cir-~
cumstances” if the Supreme Court ever re-
__ quired mandatory capital punishment” *He
~ also stated, however, haters. se
"Taleo found; but I dida’t need to find
S wey es) Jnitigating circumstances insofar as
cerned. Mitigating means good circum-
stances, those being your willingness and
* your -forthrightacss ia . -meeting -what
+ We need net comment on whether murder
committed in the home would be a proper ag-
~ gravating circumstance because Georgia has
never included this factor as a statutory aggra-
716 FEDERAL SEROREE, 2d waste
must be to “a a terrible, terrible experi-
ence. So that does go to your. credit, but
for the purposes-of this Court, for this
.finding, I could not in good conscience
apply in your case sufficient [mitigating
circumstances} to wipe out the aggravat-
ing statutory. circumstances.” ©) ~
In affirming’ the trial judge's” decision,
honorable thing in making true statements,
separating wit the officials arid pleading
” Me Ve State, 233 Ga. at 865, 213
S.E.24 it S32" In colcting its its proportion-
_ality_review review and affirming the sentence, the
‘court also noted that Moore asserted that
he had fully cooperated with the police, was
23 years old, was not_an experienced crimi-
nal, and had started shooting from a combi-
nation of fright and intoxication. “Id.
(11) One could interpret Judge MeMi-
lan’s language ‘that capital - panishment
would likely become mandatory-in cases
involving murder and robbery in the vic-
tim's home as a nonstatutory aggravating
factor which ” precluded consideration of
mitigating factors. - A fair examination of
the entire sentencing proceeding, however,
does not support this interpretation: “The
‘record ‘indicates that Judge -McMillan
‘viewed the statutory aggravating circum-
stances and the iccation of the murder and
robbery as so. aggravating the crime as to
outweigh all .mitigating circumstances in-
volved in the case.’ Such an evaluation
‘comports with the constitutional require-
ment of an individualized sentencing deci-
‘~sion. See Lockett v. Ohio, 438 U.S>586, 98
- “S.Ct 2954, 57 L.Ed.2d 973 (1978); Ford v.
Strickland, 696 F.2d 804 (11th Cir-1983) (en
ee This interpretation rests,-in part, on
the analysis used by the Georgia Supreme
Court in conducting. its mandatory propor-
tionality review. . See Zant v. Stephens, 103
S.Ct at 2749-60. a a VEE PES
setian cioeumstanen ta @nlete Aan’ 17-10-
+ 30 (1982) (formerty Ga.Code Ann: § 27-2534.-
1). See also California v. Ramos, 103 S.Ct at
men a Am yuma. *
e-
Als
'. 342s MOORE +> BALKCOM =.
"1525"
Cite a 716 F.24 1511 (1983)
intelligent admission of guilt)” Id %e!
Moore argues that he did not understand
the elements of malice murder and that the
record before the sentencing judge demon-
strates Moore's lack of understanding. Pe-
titioner’ ndtes that the’trial-judge’ never
explained ‘the terms “malice aforethought,”
“intention,” “provocation,”. or “abandoned
and malignant heart.” Moore asserts that
he did not intend to kill Mr. Stapleton and
specifically denied such intent on numerous
-occasions. Petitioner argues that we must
determine his understanding by referring
only to the record before-the sentencing
judge.
Petitioner admitted that be was io fact
guilty of the offense charged in the indict-
ment. At the entry of his guilty plea and
during the sentencing proceeding, Moore
acknowledged that be bad authorized his
counsel, Mr. Pierce, to enter'a plea of
guilty. Petitioner indicated that he under-
14. GaCode Ann. § 16-5-] (1982) (formerty Ga.
Code Ann. § 26-1101) which defines the crime
of malice murder provides:
(a) A person commits murder when be un-
lawfully and with malice aforethought, either
express or implied, causes the death of an-
other bumaa being
stood the court’s inquiries, that he had-not
entered his plea as a result of threats, coer- -
cion, or promises of benefit, and that he had
conferred with his attorney concerning the ~
' charges. against him. and the questions
posed -to-him by the court. The question
S° before “this.pane? is -therefore whether
Moore was given sufficient notice -of .the-
eS ee
understand the crime.” “*<" pie RG:
“f° ea eek ig
that the district court properly used the -
testimony received from petitioner and Mr.
Pierce at the state habeas proceeding - in
addressing this issue. “Evidence obtained
‘ at a post-conviction proceeding may serve
to supplement the trial transcript and may
be used in determining whether a plea was
voluntarily made.” Pollinzi v. Estelle, 623
F.2d 417, 418 (5th Cir.1980);. Fisher v.
Wainwright, 584 F.2d 691, 693 (5th Cir.
1978). At this proceeding, Mr. Pierce testi-
fied that he had explained the elements of
the crime™ to Moore and the requirement * ~
of a finding of aggravating circumstances
in order to impose the death penalty. Peti-
tioner has failed to overcome the presump-
tion of correctness which attaches to the
prot habeas court’s aa of fact. See.
28 USC. § 2254(d) (1976). Ses
(13) ‘Petitioner relies heavily on the trial
court’s failure to address individually the
particular elements of the crime charged
when accepting the plea State trial courts
order to accept a guilty plea. See Burden
v. State of Alabama, 584 F.2d 100, 102 (Sth
Cir.1978) (record must contain some evi-
dence that defendant was informed of ele-
Al9
1526 ©
only tts the statute sufficiently to give
the defendant real and adequate notice of
the nature of the charge against him or
find proof that the defendant in fact under-
‘stood the charge. Henderson v. Morgan,
426 US. 637, 96 S.Ct. 2253, 49 LEd2d 108
. (1976). In the case at bar, both the peti-
_ * tioner’s answers to questions posed in open
* court and testimony from his attorney sup-
port the-conclusion that he in fact under-
+: eee ae Cageegeet Ua.
. V. Araream of Right to: Withee =;
=) - Guilty Plea :
*°[i4) Pottesist inate thik tna wis tek
made aware of his right to withdraw his
guilty plea at any time prior to the filing of
his sentence. He contends that had he been
+ aware of this right,-he would have with- ~~
--” drawn his plea. “Both the federal and state
> habeas courts found that Moore was aware
° of this right Mr. Pierce ‘specifically re-
called ‘advising petitioner-of this right
_ Counsel also explained that-petitioner had
decided, upon his recommendation, not‘ to
withdraw the plea even if 2 death sentence
_. ‘were imposed. Petitioner relies solely on
. his own testimony that he was unaware of
- this right. We conclude that the district
‘court property relied upon the written fac-
tics, particularly when consented to by the
; = +LEA2a ms (1863).
¢
fié FEDERAL REPORTER, 24 SERIES 2 ¥
titioner was provided with ie assist-
ance of evened.
VL. yeas of Transcript of
Closing Argument
" [16] Petitioner also-argues that the trial
- court's failure to transcribe the closing ar-
guments at his sentencing hearing prevent-
ed the reviewing courts from examining the
imposition of his death sentence with “full
disclosure of the basis for:the death sen-
tence.” -Gardner v. Florida, 430 US. 3X9,
-- 861, 97 S.Ct: 1197, 1206, 51 -LEd2d 393
(1977) (Stevens, J., joined.by Stewart and
Powell, JJ.). The Court in Gardner, how-
~ ever, mandated: only. that .“the record on
-appeal disclose to the reviewing court the
considerations which motivated the death
sentence in-every case in which it is im-
posed.” -Id In Gardner, ‘the trial judge
based -his sentence in part on‘ information
contained in a partially disclosed presen-
tence investigation report:iIn:the case at ©
bar, the record contains the -transcript of
Judge McMillan’s imposition of sentence
which does not refer to any~undisclosed
aspect of the proceeding on which he relied
in imposing sentence. Moore has not shown.
that the state of the record was inadequate
to permit.the Georgis. Supreme Court to
perform its required review function. See
Stephens v. Zant, 631 F.2d 397, 402-04 (5th
Cir.1980), modified on other grounds, 648
F.2d 446 (5th Cir.1981), rev'd on other
. grounds, — US. ——, 38 BCh. 5008, vai
: - vin" ‘District Court's Deaial of
3 : . Petitioner's Motion to Amend .
07) Moore . contends that: “the district
court erred in refusing to allow him to
amend his habeas petition. Federal Rule of
Civil Procedure 1Xa) provides that a party
‘may amend his pleading after a responsive
pleading has been served only by leave of
court The rile also states that “leave shall
be freely given when justice so requires.”
Certainly in a capital case, the district court
should be particularly favorably disposed
toward a petitioner's motion to amend.
the granting or denial of
A20
; PERM MOORE v. BALKCOM. 3% vit
Chte as 716 F.2d 151) (1983)
leave to amend lies within the discretion of ..
the trial court and is subject to reversal
only for abuse of discretion. Foman y.
. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9
L.Ed.2d 222 (1962);..Barrett v. Independent
Order of Foresters, 625 F.2d 73, 75 (Sth
Cir.1980); In re Westec, 434 F.2d 195, 203—
* 04 (Sth Cir.1970).- In Foman, the Supreme
Court held that--the district~court . had
abused its discretion when it denied leave to
amend for.no apparent or declared réason
“such as undue delay, bad faith or dilatory
motive on-the part of the movant, repeated -
failure to cure deficiencies by amendments
previously- allowed, undue prejudice to the ©
’ opposing party by virtue of allowance of
the amendment, futility of the amendment,
etc.” Foman, 871 US. af 182, 8 S.Ct at
230. In Barrett, the court of appeals held
- that the trial judge had not abused his
_@iscretion where the proposed amendment
was not filed until nearly ten months after
the original complaint and the appellant
failed to show why the proposed additional
matters could not re
Barrett, 625 F.2d at 5. in eae ge
[18) In the case at bar, eos dhteiah court
articulated sufficient reasons within its dis-
cretion justifying its decision denying leave
to amend... Moore sought to assert that the
ed the eighth and fourteenth amendments
despite, the Supreme Coart’s prior holding
that the Georgia death penalty statute is om
its face constitutional.- See Gregg v. Geor-
gia, 428 US. 153, 96 S.Ct. 2909, 49 LEd2d
859 (1976). The district court-therefore re-
’ fused to allow this proposed amendment on
grounds of. futility..” Blake -v.’ Zant, 513
P Supp. 772, 805 (S.D.Ga.1981). Moore also
claims that the district judge should have
allowed him to amend his 'petition to allege
that Judge McMillan unconstitutiosally
used a presentence report in imposing sen-
tence before the petitioner or his counsel
had an opportunity to examine it " The
1S. Mr. James C. Bonner who had represented
Ms. H. Diana Hicks represented
Moore was represented at all times by counsel,
24527
np a a ee a
been represented by counsel at all times.
Counsel explicitly, referréd to this issue in
the original habeas petition. filed approxi-
mately two' years’ before the ~proposed _
amendment. - We cannot say that the dis-
trict court abused its discretion in denying
the proposed amendment in this case where
counsel apparently considered and rejected
the proposed arguments two years before
=e the —— amendment.™
"* i ee ee
Conclusion © ..0 = 5's
. We GRANT the Petition for Rehearing.
We affirm the district. court’s judgment
that Moore's plea was voluntarily, intelli-
gently, and-knowingly made, that petitioner
was aware of his right to withdraw his
guilty plea, aud that the absence of a tran-
script of closing arguments did not prevent
adequate appellate review. - We-bold that
the district court acted within its discretion” ©
in denying Moore’s motion to amend his
petition. -We reverse the district court's
judgment granting relief be ment:
death sentence.
No member of this a nor Judge 3 in
regular active service on the Court having
requested that the Court be polled on
rehearing en bane (Rule 35, Federal Rules .
of Appellate Procedure; Eleventh Circuit
Rule 26), the Suggestion for — En
Banc is DENIED. ’
_ AFFIRMED in part and REVERSED in
e gre ie eS 4 Spee OR
‘
MOORE v. BALKCOM
Cite x5 709 F.24 1353 (1363) : a
William Neal BIOORE, Respondent-Cross
_- Petitioner, .
v.
Charles DALKCODI, Warden, Arthur K.
Bolton, Attorney General, Petitioners-
Cross Respondents.
No. 81-7418.
United States Court of Appeals,
Eleventh Circuit
June 23, 1983.
Georgia capital penalty dcfendant
sought habeas corpus The United States
1. Rude 26(F) of our Loca! Rules provides that,
“A suggestion for rehearing @n Bint will also
be treated as a petition for rebeuring Lelore the
original panel.”
1353
District Court for the Southern District of
Georgia, B. Avant Edenfie!d, J., granted,
writ with regard to death sertcnce, and
appeal and cross appeal were taken. The
Court of Appeals, James C. Hill, Circuit
Judge, held that: (1) district court erred in
conducting a de novo proportionality review
of death sentence; (2) Georgia tric! court
committed constitutional errur in imposing
death sentence on basis of nonstatutory ag-
gravating circumstance, ie. that murder
occurred in victim's home; and (3) relief
was properly denied on clzims of denial of
effective assisiznce of counsel, failure to
transcribe closing argument and lack of
understanding of elcinents of the offense
Affirmed and remanded.
Garza, Circuit Judge, sitting by desig-
pation, concurred epocially with opinion
1. Criminal Law = 955(1), 957(2)
Generally, po>:proceeding txstimony hy
the trial judge or juror about his mental
processes in recching a decision may not be
used as evidence in a subsequent chelicage
to the decision.
2. Habeas Corpus 90
Federal court reviewing 8 collateral at-
tack on @ state prosecution must giv? great
deference to the state Supreme Court's
n.c*had of contuctiag its proportivaulity re-
view ia a death penalty cae. 28 USCA.
§ 22
2 Criaains! Law &13(2)
It is the decision of the slate govern-
Mer. £3 a matter of stet~ statutory law,
subj ict to federal comstituticnal const-aints,
to dads whethor to provide a capital pun-
ithrcal mechanis and to jruvide icr ap
propriate pocalural saferusrds
4. Habeas Corjas @*92(1)
Federal Lalwas courts must and should
examine whether spplication of approved
sentencing procedure: ia s particular case
corset 3 sabsteatial sik that the death
*emeliy baa heen inflicted ia aa arbitrary
or4 capa itiwss maarcr.
709 FEDERAL REPORTER, 24 SERIES
5. Habeas Corpus 92(1)
Although Court of Appeals may have
reached a different conclusion regarding
proportionality of charge of death penalty
had it conducted # case-by-case comparison,
the district court, on habezs corpus, crred in
conducting its own proportionality review
as it could not be said thet the Georgia
Supreme Court's review or result it reached
shocked the conscience and the state's pro-
portionslity review provided the adcquate
safeguards eguinst freakish imposition of
capit.! punishncnt~ O.CG.A. § 17-10-35;
U.S.C.A. Cont Amends 8, 14.
6. Habous Corpus 92(1)
A {cderal habeas court should not un-
dertaxc a review of a state Supreme Court's
prvuportionality review in a death penalty
case and, in effect, get out the record and
see if the state court's fact findings, and
conclusions based on review of similar cascs
was supported by the “evidence” in the
similar casea
7. Criminal Law @ 1203(1)
It is tne state's responsibility w detcr-
mins the procedure used, if any, in sentenc-
img @ criminal) to death
& Habeas Corpus 112
Evea if fed-ral habeas court concluded
that Georgia Supreme Court's proportional-
ity determination in death penalty cax
shocked the conscicnet, remand for resen-
tencing would be the appropriate remedy
and federal court could not conduct a de
nove proportionaliiy review. O.CGA
§ 17-10-35; US.CA. Const Amends 6, 14
9. Habeas Corpus @=92(1)
Federal haSeas review in capital penal
ty cares is confined to whether the state
sentencitg procedure both on its face and
as applied violates the Eighth and Four-
tcenth Amencmenta USCA. Const.
Amends 8, 14.
10. Habeas Corpus >92(1)
Federal habsas review of death penaliy
determinations focuscs en discre‘ion both
available te and exercised by the sentencing
atbority. USCA Const Amends 8, 14
- UL. Criminal Law o> 1266(1)
MOORE v. BALKCOM 1355
Unbridied discretion in death penalty
procedures, leading to imposition of the sen-
tence in discriminatory, erbitrary, or capzi-
cious manuer is unconstitutional. U.S.C.A.
Const Amends. 8, 14.
12. Homicide 354
Georzia trial court’s considering both
commission of armed robhery and location
of murder, i.e., viclim’s home, in reaching
capital pencity decision wou!d not violate
the Constitution in view of requirement of
individualized sentencing process if limited
to an explanation as to why the court
“viewed the armed robbery as authorizing
the desth penalty and a3 a description of
the thought process in evaluating the statu-
tory aggravating factors, but it was consti-
tutional error to view death penalty as
mandatory because murde: ocenrred in the
victim's house, thereby eliminating consid-
eration of valid mitigcting circumstances.
0.C.G.A. § 17-10-3&(bX2); U.S.C.A. Const.
Amends. 8, 14.
13. Criminal Law = 1263(1)
Eligivility for death sentence cannot be
arbitrarily determined ‘ani the sentencing
authority can determine eligibility only by
finding existence of guilt of a capital of-
fense and existence of statutory agrravat-
ing circurastencea and imposition of death
penalty on besis of nonsta.story ageravat-
ing circumstance represents a unique freak-
ish instance in violation of Furman. US.
C.A. Cons:.Ameads. 8, 14
14. Habers Corpus 90
Federal habeas court properly used tes-
timony received from petitioner and his
counsel 2t state habeas proceeding in ad-
dressing issue of whether plea was knowing
and intelligently made, as against contcn-
tion that petitioner did not understand ele-
ments of malice murder. 2 USCA
§ 24
15. Criminal Law ¢273.1(4)
Stete trial courts necd not specifically
address each individual! element required
under a state statute before guilty pica is
constitutionally valid, and the judge need
only explain the statute sufficiently to give
Cite as 709 F.2d 1353 (1982)
the eccused real and adequate notice of
nature of the charge against him or find
proof that accused in fact understood the
charge. :
16. Habexs Corpus $9
District court properly relied on writ-
ten f[=etual determinations of state habeas
court eft-r 2 full evidentiary hearing in
concluding that state petitioner wes aware
of right to withdraw guilty plea and made a
reasoned decision not to do so and that
counsel] and petitioner’s decision to seek re-
lief on appeal rather than withdrawing plea
was a strateciclecision.
17. Habeas Corpus <=25.1(6)
Questions of trial strategy or tactics,
particularly when corsented to by the peti-
tioner, do not constitute a basis for federal
habeas relief, on cround of effective assist-
ance of counsel, absent exceptional cireum-
stances.
18. Habeas Corpus 55
In a capital cease, the district court
should be particulariy favorably disposed
toward a state petitioner's motion to amend
a habeas corpus petition, but granting or
denizl] of leave to amend is within the dis-
cretion of the trial court and is subject to
reversal! only for abuse. Fed.Rules Civ.
Prye.Rule 1i{a), 28 U.S.C.A.
19. Hisbeas Corpus 55
It was not abuse of discretion to deny
leave to amexd habeas petition to assert
that Georgis capital sentencing procedure
violated Eizhth and Fourteenth Amcrd-
ments despite Supreme Court's prior hold-
ing to the contrary or sllege that state trial
‘judge unconstitutionzliy used presentence
report in imposing sentence before petition-
er or his counscl had opportunity to exam-
ine it where counsel explicit!y referred to
the issue in the origine! habeas petition
filed approximately two years before the
proposed amendment. Fed.Rules Civ.Proc.
Rule 15{a), 28 U.S.C.A.
Charlie: F. Brown, Asst. Atty. Gen,
George M. Weaver, Asst. Sol., Atlanta, Ga.,
for petitioners-cross respondents.
at
1356 . 9 FEDERAL REPORTER, 2d SERIES _
Professor Daniel J. Givelber, Professor
Donald Berman, Northeastern University
School of Law, Boston, Mass., for respon-
dent-cross petitioner.
Appeals from the United States District
Court for the Southern District of Georgia.
Before HILL and HENDERSON, Circuit
Judges, and GARZA®*, Senior Circuit
Judge. .
JAMES C. HILL, Circuit Judge:
Toe petitioner, William Nea! Moore, was
convicted of malice murder and armed rob-
bery in the Superior Court of Jefferson
County, Georgia and sentenced to death.
Both parties to this habeas corpus action
raise numerous issues in- this appeal and
cross-appeal. We conclude that the district
court correctly denied petitioner relief on .
‘* his claims that he was unconstitutionally
convicted on the basis of an unknowing plea
to malice murder, that he was denied effec-
tive assistance of counsel, and that the fail-
ure to transcribe closing arguments de-
prived him of a constitutionally adequate
review of his death sentence. We hold that
the district court erred in conducting a de
novo proportionality review of the petition-
er’s death sentence. We conclude that the
trial court committed constitutional crror in
imposing the death sentence on the basis of
non-statutory aggravating circumstances.
Accordingly, we affirm the judgment of the
district court and remand the case for fur-
ther proceedings.
I. Procedural History
A state grand jury indicted petitioner for
the April 2, 1974 malice murder and armed
robbery of Fredger Stap!eton. At a hear-
ing conducted by Judge Walter C. McHMil-
lan, Jr. on June 4, 1974, petitioncr waived
his right to a jury trial with respect to both
guilt and sentence and entered 2 plea of
guilty to all charges At the sentencing
herring, Judge McMillan sentenced the pe-
titioner tv death.
* Honorable Reynalde G. Garza, US. Circuit
Judge for the Fifth Circuit, sitting by Cesigna-
A24
The Georgia Supreme Court conducted its
mandatory review of the death sentence in
accordance with the Georgia statutory pro-
cedure. GaCode Ann. § 17-10-35 (1982)
(formerly Ga.Code Ann. § 27-2537). The
court affirmed petitioner's conviction and
sentence in a per curiam opinion, with one
judge dissenting, and denied Moore’s peti-
tion for rehearing. Moore v. State, 233 Ga.
861, 213 S.E.2d 829 (1975). The United
States Suprenic Court denied Moore’s peti-
tion for certiorari. Moore v. Georgia, 423
U.S. 910, .96 S.Ct. 3222, 49 L.Ed.2d 1218
(1976).- i , “bi
Moore then filed 2 declaratory judgment
action in state court seeking a new sentenc-
ing proceeding. The court denied relief and
the Gcorgia Supreme Court affirmed.
Moore v. State, 239 Ga. 67, 235 S.E.2d 519
(1977). The United States Supreme Court
denied certiorari. Moore v. Georgia, 434
U.S, 878, 98 S.Ct. 232, 54 L.Ed 2d 159 (1977).
Moore then brought a habeas corpus action
in state court. The court denicd all relief
and the Georgia Supreme Court denied
Moore’s application for a certificate of prob-
able cause to appeal.
The petitioner filed the present habcas
corpus action on November 23, 1978 in the
federal district court for the Southern Dis-
trict of Georgia. On Apri! 29, 1931, the
district court granted the writ with regard
to petitioner's death sentence but denied
relief on his other claims. This appeal and
cross-appeal followed.
Il. Facts
At the time of Fredger Stapleton’s death,
Moore was an enlisted man in the Uniied
States Army. In connection with his mili-
tary service, Moore mct George Curtis, a
nephew of Fredger Stapleton. Curtis told
Moore that Mr. Stapleton kcpt a large sum
of money at his home. At first, Moore and
Curtis planned to rob the victizn together
and to sect fire to the house with S n
inside. After entering Stapleton’s house,
Curtis and Moore found a locked door.
Curtis became frightened and the two re-
ton
bat |
MOORE vy. BALKCOM 1357
Cite as 708 F.24 1353 (1983)
turned to Curtis’ bouse. Subsequently
Moore returned to Stapleton’s house alone.
However, he armed himself with a 38 cali-
ber pistol in ease he met opposition in his
robbery attempt. Moore claims that he did
not intend to kill Stapleton.
Moore claims that Stapleton confronted
him with a shotgun. Stapleton fired a shot-
gun blast at.Moore which missed. Staple-
ton then hit Moore in the leg with the gun
barrel Petitioner then fired four or five
shots at Stapleton, who wes hit and killed
by two bullets which struck him in the
chest.
After the shooting, Moore removed two
billfolds from the victim’s pockets and took
the shotgun. The money taken from Sta-
pleton totaled epproximately $5709. Moore
wzs subsequently arrested and cooperated
with the police during the investigation
Il.
A. Imposition of Sentence
The district court, holding that the Geor-
gia Supreme Court did not properly dis-
charge its ststutory duty of appellate re-
view, concluded that the imposition of the
death penalty in this case “shocks the cun-
science” and granted relicf with regard to
person.
(4) The ofiender committed the offense of
murde: for himself or another, for the purpose
of receiving money or any other Unung of nrone-
tary value.
(5) The murder of a judicial officer, forme:
jedicicl officer, disurict attorney or solicitor or
sentence. Under the Georgia system, the
sentencing authority, either a judge or a
jury, may impose the death sentence when
it finds the existence of a statutory aggra-
vating cireumstance.' Ga. Code Ana. § 17-
10-31 (1982) (formerly Ga.Code Ann. § 26—
3192). If the sentencing authority elects to
impose the death penalty, it must specify
the aggravating circumstance whieh it
found beyond a reasonable doubt. Ga.Codc
Ann. § J7-10-3({c) (1982). (formerly Ga.
Code Ann. § 27-2534.1(c)). Whenever the
death penalty is imposed, the Georgia Su-
preme Court must conduct an expedited
review of the case. Ga Code Ann. § 17-10-
$5 (1932) (formerly Ga.Code Ann. § 27-
2537). In reviewing the sentence, the evurt
must determine whether the sentence was
imposed “under the influcace of passion,
prejudice, or any other arbitrary factor,”
whether the evidence supports the finding
of a statutory aggrevating circumstance,
and “whether the sentence of death is ex-
cessive or disproportionate to the penalty
imposed in similar cases, considering both
the crime and the defendant.” GaCede
Ann. § 17-10-35(c) (1982) (formerly Ga
Code Ann. § 27-2537(c)). The court must
also include in its decision s reference to
those “similar cases” which it took into con-
sideration. GaCode Ann. § 17-10-8i(c)
former district attorney or solicitor during or
because of the exercise of his officiz! duty.
(6) The offender caused or directed another
to commit murder or committed murder as an
agent or employee of another person
(7) The offense of murder, rape, armed rob-
bery, or kidnapping wes oulragcously or wan-
tonly vile, horridle or inhuman in that & ir-
volved torture, depravity of mind, or an ag- <-
vated battery to the victim
(8) The offense of murder was comnitied
against eny peace officer, corrections employve
or fireman while engaged in the p =rformar.ce of
his official duties.
(9) The offense of murder was committed by
&@ person in, or who has escaped from, the
lawful custody Cop oay eee &
lavitul confinement
(10) The morder was committed tor the pur-
pose of avuiding. interfering with, or prevent-
ing » lawful arrest or custc<ly in a place of
lawful confinement, of himsc!f or anther.
GaCode Ann § 17-10-30) (1942) (formerly
GaCode Ann § 27-2534. 1(b)
a
(1982) (formerly GaCode Ann § 27-
2537(e)).
{2} Im the case at bar, Judge McMillan
sentenced Moore to death after finding that ©
petitioner had committed a capita! offense,
- malice murder, while in the commission of
another capital crime, armed robbery. This
finding was itself sufficient to support a
death sentence under Seorgia law and was
supported by the record. See Ga.Code Ann.
§ 17-10-30(bX(2) (1982) (formerly Ga.Code
Ann. § 27-2531.1(bX{2)). After reading his
order and announcing the sentence which
he imposed? Judge McMillan continucd:
[Flor the purposes of this Court, for
this finding, 1 could not in geod con-
science apply in your case sufficicnt to
wipe out the aggravating statutory cir-
~ eumstances. If we're going to philosophy
about it, and if I'm permitted to do that,
I'll do it. People in their homes—the
* most precious placc a man can have—is
his home; and to be in a home, and
probably this man was asleep, I don't
know, or for any person to be, rot this
man, but any person, to be asleep in his
home, to be invaded by an intruder, that's
armed with weapons, that's prepared nec-
essarily to kill (or otherwise the weapon
wouldn't be there in the hands of the
intruder), is probably an invasion of the
highest injustice that another cen do.
Now, I can only imagine that anyone that
is invaded by an intruder with an armed
weapon, the fear that they must go
through when they are encountered in
such a situation. So I feel like that if the
Court ever does require mandatory pun-
ishment—that is when they specify by
2. Judge McMillan made his coraments alter he
had read his order which cites only the one
Statutory aggravating circumstance as the ba-
sis for the sentence. He had not concluded the
sentencing proceeding ard his remarks s!:ou'd
trerefors be viewed as part of the proceedings
This situation diflers from one in which the
Edomgs v. Oidahoma, 455 US. 104, 102 S.Ct
708 FEDERAL REPORTRK, 24 SERIES
law what offenses will have to be suf-
fered by the electric chair—that one of
’ these statutory offenses probably will be
that when a person is robbed and killed in
his hoine, that mandatory, as contrasted
to discretionary, statutory aggravated
circumstances will probably warrant the
electric chair without life imprisonincat.
That justifies me in making the finding
that I made...
In granting habeas relief from the sen-
tence, the district court found that the sen-
tence was based primarily on the location of
the killing, Stapleton's home, and not on the
presence of the aggravating circumstance
articulated in the trial judge's order. The
district court concluded that the Georgia
Supreme Court did not perform its statuto-
ry duty properly since it focused on “similar
cases” involving different circumstances
In the district court’s view, the Georgia
court should have compared Moore's case to
“similar cases,” and that “similar cascs”
would be those inveiving killing in the
home. The district court engaged in its
own proportionality review on this basis
and concluded that the death penalty in the
case xt bar “shocked the conscience.”
B. District Court's Analysis
Judge Edenficld held that the death pen-
alty was inappropriate in this case after
concluding that the Georgia Supreme Court
erred in performing its proportionality re-
view. In upholding the constitutionality of
the Georgia sentencing procedure, the Unit-
ed States Supreme Court noted the Georgia
Supreme Court’s mandstory review of al!
death sentenc’s’ Grezz v. Georgis, 425
669, 71 LEd2. 1 (1982). Generally, post-pro-
ceeding testime wy by the trial judge or a juror
about his ments! processes in reaching a dec:
sion may not be used as evidence in a subs--
quent challenge to the decision. Washiny‘on v.
StrickJand. 693 F.2d 1243, 1262-63 (Sth Cir
Unit B 1982) (en banc), petition for cert. Giled,
— US. —, 103 S.Ct 2451, 75 LEd. 2d —
(1963) (No. 62-15™). Proffig v. Wainwright,
685 F2¢ 1227, 1255 (i lth Cir. 1992).
3. We do not decide whe her the Supreme Court
has mandated that capital punishownt may
only be imposed whert a stale has provided for
some type of proportionality review. See Har- .
MOOKE v. BALKCOM
(Cire as 709 F24 1333 (195)
US. 153, 198, 203-06, 95 S.Ct. 2909, 2906,
2933-2340, 49 L_Ed.2) 859 (1976) (Stewart,
J., joined by Powell and Stevens, JJ.); id. at
211, 223-24, 96 S.Ct at 242-43, 2948-49
(White, J., joined by Burger, CJ., and
Rehnquist, J., concurring). In reviewing
the Georgia court's proportionality review,
we examine only whether the Georgia Su-
preme Court bus “properly perform{ed] the
task assigned to it under the ia stat-
utes.” Jd. at 224, 96 S.Ct at 2948 (White,
J., joined by Burger, CJ., and Rehnquist, J.,
concurring).
(2-4) As ® federal court reviewing a
colletera] attack on a state prosecution, we
moust give great deference to the Georgia
Supreme Court’s method of condecting its
proportionality review. It is the decision of
the state government as a matter of state
Statutory law, subject to federa! constitu-
tional constraints, to decide whether or not
to provide a capital punishment mechanism
and to provide for appropriate procedural
safeguards. Eddings v. Oklahoma, 455 U.S.
104, 102 S.Ct. 869, 883, 71 L.Ed.2J 1 (1982)
(Purger, CJ., joined by White, Blackmun,
and Rehnquist, JJ., dissenting); Godfrey v.
Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759,
1764, 64 L520 398 (1980) (Stewart, J.,
joined by Blackmun, Powell and Stevens,
JJ.) (“if a State wishes to authorize capita!
punishment it has a constitutional responsi-
bility to tailor and apply its law in a man-
ner that avoids the arbitrary and capricious
infliction of the death penalty”); Wain-
wright v. Sperkelink, 442 U.S. 901, 903, 99
S.Ct. 242i, 2422, 60 LEd.2d 1075 (1979)
(Rehnquist, J., dissenting) (“a State whose
citizens have exprosood through their elect-
e| repecsentatives end their judges and ju-
ries a will to impose the death penalty for
offenses such as murder may do so if the
State conforms its trial and sertencing pro-
cedures to the requirements enunciated in
this Court’s cases”); Roberts v. Louisiana,
423 U.S. 325, 837, 96 S.Ct 3001, 3007, 49
LEd.2d 974 (1975) (White, J., joined by
Burger, C.J., Blackmun and Rehnquist, JJ.,
dissonting). Federal habeas courts must
ris v Pulley, @92 F.2d 1189, 1196-97 (Kh Cir
1982), cert. granted, —- US. ——, 13 SQ
8368, 73 L.Ed2d 1140 (1982); Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct 869, 71
L.Ed.2d 1 (1982); Godfrey v. Georgia,
US. 420, 100 S.Ct. 1759, & LEG
(1980); Gregg v. Geurgis, 428 U.S 153,
S.Ct 2909, 49 L.Ed.2d-859 (1976); Spinkel-
1548, 59 L.Ed.2d 796 (1976).
This court concluded in Spinkellink v
Wainwright that a federal habces court
generally cannot reexamine the proportion-
ality review performed by @ state appellate
court in a capital case: 578 F.2d at 694.
Spinkellink had contended that his crime
when compared to other Florida death pen-
alty cases was insufficicntly gruesome or
heinous to werrant the death penulty, id. at
G2, and had highlighted seven other cases
in which the Florida Supreme Court had
reversed death sentences, all of which el-
legedly invo'ved defendants equally or more
deserving of the death penalty than he, id.
at 602 n. 25. This court condemned a feder-
al case by case analysis of the cases used by
the state appellate court in its proportional-
ity review as an unnecessary intrusion on
the Florida judicial system. Id at 60i.
The process would be never-ending and
the benchmark for comparison would be
chronically undefined. Further, there is
no reason to believe that the federal juci-
ciary can render better justicc.... If
the federal courts retried again and again
the aggravating and mitigating circum-
stances in each of these cases, we may at
times reach results different from those
reached in the Florida state courts, but
our conclusion would be no more, nor no
less, accurate. Such is the human condi-
tion.
Id. at 695. The court qualified this doctrine
of non-interference by noting thet fedcral
1425, 75 L Fd 24 787 (1983); Wiliams v. Map-
gic, 679 F.2d 381, 395 (Sth Cir.)9%2) (en hanc)
1369 709 FEDERAL REPORT! SERIES
court intervention might be warranted if “a
petitioner who has been sentenced to death
ean show that the facts and circumstances
of his case are so clearly undeserving of
capital punishment that to impose it would
be patently unjust and would shock the
conscience.” Jd at 606 n. 23.
Petitioner argues that the review con-
ducted by the Georgia Supreme Court in
this case reached a result so extreme as to
“shock the conscience.” Blake v. Zant, 513
FPSupp. 772 at 812 Looking at Judge
McMillan’s comment, the district court con-
cluded that he had based his sentencing
decision on the fact that Moore had killed
the victim in the victim's own home The
Georgia Suprezic Court did not base its
comparison of “similar cases” on cases in-
volving victims who were attacked in their
homes and focused its review on cascs in-
volving the same statutory aggravating cir-
curnstances found in Judge MeMillan’s or-
" der. In the district court’s view, the Geor-
gia Supreme Court's analysis was improper
since it chose the wrong cases to compare.‘
The district court concluded that the Geor-
gis court’s inadequate comparison justified
the district court in engaging in its own
proportionality analysis.
4 In a sense, Moore's argument provides a sig-
the “universe” of similur cases as
inctusive of all state cases in which the sen-
(5-9) We bold thet the district court
erred in conducting its own proportionality
review in the case at bar. A federal habeas
court should not undertake a review of the
state supreme court's proportionality re-
view and, in effect, “get out the record,”
and see if the state court's findings of fact,
their conclusion based on a review of simi-
lar cases, was supported by the “evidence”
in the similar cases. To do so would thrust
the federal judiciary into the substantive
policy making area of the state It is the
state’s responsibility to determine the pro-
cedure to be used, if any, in sentencing a
criminal! to death.
The Geargis Supreme Court's scapsiline
ality review in this case provided the ade-
quate safeguard against the freakish impo-
sition of capital punishment’ See Gregg v.
Georgia, 423 U.S. 153, 96 S.Ct. 2909, 49
L.E4.2d 859 (1976); Proffitt v. Florida, 428
U.S. 242, 95 S.Ct. 2960, 49 LEd2d 913
(1976). While we may have reached a dif-
ferent conclusion regarding the proportion-
ality of the sentence had we conducted a
case-by-case comparison, we cannot con-
clude that the Georgia Supreme Court's re-
view or the result it reached shocked the
conscience.®
statutory aggreveting circumstances. In Wil-
liams v. Maggio, 679 F.2é¢ 331 (Sth Cir.1922)
(en banc), the court of appeals held that the
Lovisiana Supreme Court's review, a comp2--
son of murder prosecutions in the particu!-+
judicial district from which the defendant op
pealed, provided adequate safeguards against
freakish imposition of capital punishment. In
the recent case of State v. Williams, 308 N.C
47, 301 S.E2¢ 335, 355-57 (1983), the North
Carolina Suprere Court held that sim‘tar cases
for purposes of a proportionality review includ-
ed “all cases srising since the effective dxte of
. Our capital punishment statute, 1 June 1977,
which have been tried as capita! cases and
reviewed on direct appeal by this Court and in
which the jury recommended érath or life iz-
6 Even if we conclude that the Georgia Su
preme Court's dxermination shocked Ube oir
science, we would be required to remand the
case to alluw Uc state court to resentence the
petitioner A federal habeas court may not
BIOORE v. BALKCOM 1361
Cite as 709 F 2d 1353 (1943)
C. Consideration of Non-Statutory
Aggravating Circumstances
[10, 11) We conclude that the sentencing
judge comrritted constitutional error by
considering a nonstatutory aggravating fac-
tor in imposing the death penalty. In ana-
lyzing constitucicnal issues in the wake of
the Supreme Court's decision in Furman v.
Georgia, 408 US. 233, 92 S.Ct. 2725, 33
“LEd.2d 346 (1871), we focus on the discre-
tion both avzilable to and exercised by the
sentercing authority. The fragmentation
of the Supreme Court in Furman! resulted
in various conclusions by the states with
regard to the role of discretion in capital
sentencing. The thrust of the Court's deci-
sion is now clear in light of subsequent
decisions: unbridled discretion in death
penalty procedures leading to imposition of
the sentence in 2 discriminatory, arbitrary,
or capricious manner is unconstitutional.
This message was not as clear in the
immediate wake of the Furman decision.
In Furmzn, the Supreme Court held that
then existing Georgia and Texes death pen-
alty statutes, as applied in those particular
cases, constituted crue] and unusual! punish-
ment in violation of the cighth and four-
teenth amendmen's. Jd. 408 U.S. at 233-
49, 92 S.Ct. at 2727. In order to understand
the relationship between Judge McHillan’s
conduct « de novo proportionality review and
thereby inject itself into the state s-ntencing
procedure. Our review remains con‘ined to
its face end as appl's! violates the eighth and
fourteer:h amendrects. See Spinkellink v.
Wainwright, 578 F.2d a: 605 n. 28.
7. In F.cman, Justices Douglas, Brennan, Stew-
art, White and Marshall filed separate opinions
in suppor of the judgment holding the Texas
aad Crorgia death penaliy statute unconsttu-
tonal as applied in th: case. Chief Jusuce
the jury or tae ge may impose sentence
Ge Code Ann § 17-10-2 (1982) (formerly Ga
Code Ann. § 27-2522) The Georgia statutes
do not define mit'gs‘ing circumstances. The
jed.e or fory may impocte 2 death sentence
only after f.ndyng ore of the statutory aggrevat
ing circumstance. (except in cases of reason
comment and the sentence which he in-
posed, we are mindful of the years that
have passed since Judge McMillan urder-
took the tesk of sentencing under the then
newly-enacted Georgia death penalty stat-
ute and the cases that have been decided.
Thos precedents are available to this court;
Judge McMillan was bound to predict devel-
opments which could then be but dim);
perceived. His predictions were consistent
with those of many other thoughtful ana-
lysts, yet in a crucia! area they were incor-
rect :
In determining whether Judge McMillan
imposed the death sentence in accordance
with constitutional limitations, we must
evaluate his comments in light of the dis-
cretion accorded to sentencing authorities in
post-Furman Supreme Court cases involv-
ing capital punishment In the wake of
Furman those states which wished to imple-
ment capital punishment mechanisms re-
sponded in severa] ways. Some states, such
as Georgia and Florida, souglit to bridle ard
channel previously unchecked discretion by
adopting ea bifurcated guilt-dctermination
and ser.tence-impos tion procedure in which
the death penalty could only be imposed in
the presence of statutorily designuted ag-
gravating circumstances® Texas responde]
and siccraft hijacking) and electing to impose
that sentence. GaCods Ana §§ 17-10-31
(1982) (formerly Ga.Code Ann. § 26-3102), 17-
10-32 (1982) (formerty GaCode Aan. § 27-
2528). In jury cases, the tris! judge is bound
ty the jury's recommended sentence. GaCode
Ann § 17-10-31 (1982) (formerty Ga.Cod:
Ann. § 26 3102).
The Florida mechanism, approved by the S.:-
preme Court in Proffitt v. Florig2, 428 U.S. 242,
8 SCt 23960, 49 LEd2¢ 913 (1976), while
similar in mary respects, differs slightly from
the Georgia system im delineating the discretiou
piven to the sentencing authority. The ci
and adtgsting Grown
stances Fla Stat Ann § 921.141. At the con-
clusion of the sentencing hearing. the judor
Girects the jury to consider “[w]icther suf!
cient mitigating circumstances exist which out-
weit) the aggravating COrcumstances found to
cxist, and [D)escd on these consideration ».
whether the defercant should be sentence? 1:
life imprisooment or death™ Fla Stat An
by limiting capital homicidc2 to intentional
and knowing murders committed in five
situations and adopted a capital-sentencing
procedure that requires the jury to answer
three questions in a separate sentencing
proceeding? If the jury finds that the
state has proved beyond a reasonable doubt
tbat the answer to each of the three ques-
tions is yes, the death sentence is imposed.
Tex.Cede CrimProc., Art. 37.071(c), (e)
(1981) (as amended). ~The North Cerolina
legis!ature responded to Furman by adopt-
ing a mandatory death penalty law for a
specified class of crimes. 1973 N.C.Sess.
Laws Ch. 1201. The Louisiana legislature
converted the existing discretionary death
penalty statute to a wholly mandatory one
requiring that the death pena!ty be imposed
whenever the jury found the defendant
guilty of the newly defined crime of first-
¢azrce murder. La Rev.Stat.Ann. § 14.30
(1974).
In 1375, the Supreme Court addressed the
comstitutionality of these death penalty pro-
ewlures. The court upheld the Gcorgiz,
Fiorida, and Texas mechanisms while inva-
iidstirg the North Carolina and Louisiana
ststutes. In upholding the Georgia, Flori-
da, and Texas statutes, the Court focused
on the need for.channeling the sentencing
authority's discretion by clear and objective
6% 521.141(2):b) and (c). The jury's verdict is
determined by majority vote. The jury's sen-
tence is only advisory, the trial judge cer.
n.ines the actual sentence. The Florida syscerm
a'so directs the trial jodce to weigh the stztuto
ry aggravating and mitigating circumstances
when he determines the sentence tu be imposed
on a defendant. The stature requires that if the
triai court imposes a death sentence, “it shall
sct forth in writing its findings upon which the
scatunce of death is based 25 to the facts: (a)
(tihat sufficiont aggravating circumstances ex-
ist... and (») [:Jhat there are insufficient nut’.
gxun, circumstances ... to outweiyb the ep
gravating circumstances. Fia.Stzt.Ana. § &21.-
1410).
S$. The jery must answer the following ques
thors
(1) whether the conduct of the defendant
thot caused the ceath of the deccased was
corrunitted deliberately and with the reasona-
ble expectation that the death of the de
ceased or another would resus,
@) whether there is a probability that the
Criendarc:: would it crimunal acts of vio-
A30
standards and providing the decision maker
with relevant and accurate information.
See Gregg v. Georgiz, 423 U.S. 153, 188-89,
96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976)
(Stewart, J., joined by Powell and Stevens, .
JJ.) (“Furman mandates that where dis-
cretion is afforded 2 sentencing body on a
matter so grave as the determination of
whether a human life should be taken or
spared, that discretion must be suitably di-
rected and limited so as to minimize the risk
of wholly arbitrary and capricious action);
id. at 15%, 96 S.Ct. at 2937 (existence of
discretionary stage docs not invalidate
Georgia proceJure); id. at 220-23, %6 S.Ct.
et 2947-48 (White, J., joined by Burger,
C.J., and Rehngzist, J., concurring); -Prof-
fitt v. Florida, 423 U.S. 242, 252-54, 96 S.Ct.
2960, 2965-67, 49 L.Ed.2d 913 (1976) (Stew-
art, J., joined by Powell and Stevens, JJ.);
id. at 258, 96 S.Ct at 2969 (“the require-
ments of Furman are satisfied when the
sentencing avthority’s discretion is guided
and channeled by requiring examinatior of
specific factors that argue in favor of or
against imposition of the death penalty,
thus eliminating tots! arbitrariness and ca-
priciousness in its imposition”); Jurek v.
Texas, 428 U.S. 262, 270-74, 96 S.Ct. 2959,
2953-57, 49 L.Ed.2d 929 (1976) (Stewart, J.,
lence that would constitute a continuing
threat to society, and
Q) if raised by the evidence, whether the
conduct of the defendant in killing the de
ceased was unreasonable in response w the
provocation, if any, by the decease.
Tex.Code Crim Proc, Art. 37.071(b) (1°81).
10. Url’ke the Florida systern which requires a
majority jury voue, Ure jery under the Texas
system approved in Jurek v. Texas, 42% U.S.
262, 96 S.Ct. 2950, 49 1.E4.2d 929 (1976), can
answer “yes” only if all members agree, K can
answer “no” if 10 of the 12 members agree.
Tex.Code Crim.Proc, Art. 37.071(d) (1961).
The Suprcme Court noted in Jurek that Texas
law was unclear as to the procedure to be
fotlow ed in the event that the jury was enable
to answer the questions. Jurek v. Texas, 428
U.S. at 269 n 5, 96 SC at 2955 n 5. The
Texas iegislature subsequently ameaced Texas
Code of Criminal Procedure, Article 37.071(e)
to provice that if Ure jury is unable to answer
any question submitted under this article, the
court shall sentence the defendant to hile im-
prnsonment
ba |
"MOORE ¥. BALKCOM 1363
Cite as 709 F 2d 1353 (1933)
joined by Powell and Stevens, JJ.) (“the
Texcs capital-sentencing procedure guides
and focuses the jury's objective considera-
tion of the particularized circumstance of
the individual offense and the individual
offender before it can impose a sentence of
death”).
Although language in Furman's opinion
supported Judge McMillan’s prediction that
the Supreme Court would approve only cap-
ital punishment mechanisms which elimina-
ted discretion, Furman v. Georgia, 408 US.
at 257, 92 S.Ct at 2735-36 (Douglas, J.,
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