Davis v. Greer

• Decision Date: 13 January 1994
• Docket Number: No. 92-3203,92-3203
• Citation: 13 F.3d 1134
• Parties: Girvies L. DAVIS, Petitioner-Appellant, v. Warden Jim GREER and Neil F. Hartigan, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1134

13 F.3d 1134

Girvies L. DAVIS, Petitioner-Appellant, v. Warden Jim GREER and Neil F. Hartigan, Respondents-Appellees.

No. 92-3203.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 12, 1993.

Decided Jan. 13, 1994.

John D. Shugrue, Russell J. Hoover, Barry Levenstam (argued), Janice A. Hornaday, Jenner & Block, Chicago, IL, for petitioner-appellant.

Douglas K. Smith, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Springfield, IL, Steven J. Zick (argued), Office of the Atty. Gen., Criminal Appeals Div., Chicago, IL, for respondents-appellees.

Before BAUER, COFFEY, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

Girvies L. Davis was convicted of murder and sentenced to death in the circuit court of St. Clair County, Illinois. After unsuccessfully appealing his conviction and sentence in the Illinois courts, Davis filed this petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied Davis' petition and he appeals.

I.

On Friday, December 22, 1978, Charles Biebel was shot to death in his mobile home in St. Clair County, Illinois. Biebel, an 89 year-old man who was confined to a wheelchair, was shot twice while inside his trailer. Davis and Richard Holman were indicted and tried for the murder. The evidence at trial established that Davis and Holman burglarized Biebel's home in addition to killing him. Davis was convicted by a jury of one count of murder in violation of section 9-1(a)(1) of the Illinois Criminal Code of 1961. Ill.Rev.Stat. ch. 38, para. 9-1(a)(1) (1977) (now codified as 720 ILCS Sec. 5/9-1(a)(1)). As required by Illinois law, the court conducted a sentencing hearing to determine whether Davis was eligible for the death penalty. At the sentencing hearing, the jury heard evidence that Davis had been convicted for the murders of two other people in addition to Biebel, and the attempted murder of a third. These prior murder convictions, along with the Biebel conviction, made Davis eligible for the death penalty under Illinois law. The jury determined that the necessary aggravating factors existed, and that no mitigating factors were sufficient to preclude the imposition of the death penalty. The jury returned a unanimous verdict that directed the court to sentence Davis to death. The court sentenced Davis to death and the Illinois Supreme Court affirmed his conviction and sentence. People v. Davis, 95 Ill.2d 1, 69 Ill.Dec. 136, 447 N.E.2d 353 (1983). The United States Supreme Court denied Davis' petition for writ of certiorari. Davis v. Illinois, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (Ill.1983). Davis then filed a petition for post-conviction relief in the circuit court of St. Clair County, Illinois. That court dismissed Davis' petition and the Illinois Supreme Court affirmed. People v. Davis, 119 Ill.2d 61, 115 Ill.Dec. 553, 518 N.E.2d 78 (1987). The United States Supreme Court denied Davis' second petition for writ of certiorari. Davis v. Illinois, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989). Davis then sought leave in the Illinois Supreme Court to file a second petition for post-conviction relief. The Illinois Supreme Court denied his request in an unpublished order. With all state remedies exhausted, Davis turned to federal court. He filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied his petition.

II.

On appeal, Davis alleges the following: (1) his sentencing hearing was fundamentally unfair; (2) the Illinois death penalty statute is unconstitutional on its face; and (3) the Illinois death penalty statute is unconstitutionally applied as a general matter and was unconstitutionally applied in this case.

A. Davis' Sentencing Hearing

Davis contends that his sentencing hearing violated constitutional standards in three ways. First, Davis claims that the use of a taped custodial interview of him by the prosecutor coupled with a remark by the prosecutor that the jury was only to "recommend" the death penalty unconstitutionally injected passion and emotion into the sentencing, violated his right to counsel, violated the Sixth Amendment's Confrontation Clause, and caused the jury to abdicate its responsibility in considering the death sentence. Second, Davis alleges that he was denied his right to the assistance of counsel at his sentencing hearing. Finally, Davis claims that the prosecutor at his trial systematically and purposefully excluded black members of the venire in violation of the Fourteenth Amendment Equal Protection Clause.

We begin with the videotape. At his sentencing hearing, the trial court allowed the State to play for the jury a videotape of a custodial interview of Davis. Davis said several things to the prosecutor at that interview, including: that he knew of his right to an attorney and did not want his attorney present; that he wanted to be executed quickly for his crimes because he was "tired of living"; that he was a murderer; that Ricky Holman gave him a gun; and that he committed a series of burglaries.

Davis argues that the videotape, together with the prosecutor's remarks that the jury was only to "recommend" the death penalty, eroded the moral responsibility that the jury felt for Davis' sentence. Davis' suggestion that the videotape made the jury more likely to vote for the death penalty is pure speculation. In fact, Davis' trial counsel, Patrick Young, referred to Davis' stated desire to die as a mitigating circumstance because only someone who was "extremely emotionally disturbed" and not in his "right mind" would make statements like those Davis made during the taped interview. Tr. of Oct. 28, 1980 at 160. And the prosecutor's comment was an apparent off-hand statement made during the course of the closing argument to the jury. To determine that this lone assertion required reversal, we would have to find that the statement was so inflammatory and prejudicial as to deprive Davis of a fair trial. Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1242 (7th Cir.1984). We examine the prosecutor's remark in the context of the proceeding as a whole. United States v. Easley, 994 F.2d 1241, 1245 (7th Cir.1993). The jury in this case was repeatedly instructed that Davis would be sentenced to death if the jury unanimously decided that he deserved the death penalty. For example, the court instructed the jury in part: "If, at the conclusion of your deliberations in accordance with the court's instructions, you unanimously recommend that the death sentence be imposed, then the defendant will be sentenced to death by the court." Tr. of Oct. 28, 1980 at 180. The court also instructed the jury to consider only the testimony of the witnesses and the exhibits which the court received as evidence. So instructed, the jury returned a unanimous sentence of death. We presume that juries follow their instructions. United States v. Badger, 983 F.2d 1443, 1456 (7th Cir.1993), cert. denied, --- U.S. ----, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993). Nothing in this case even begins to rebut that presumption.

Davis also challenges the use of the videotape because, he says, the interview was conducted in violation of his right to have counsel present. The record reveals that Davis was made aware of his right to counsel and waived that right. As required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), Davis was warned prior to any questioning that he had a right to remain silent, that he had a right to the presence of an attorney, and that if he could not afford an attorney, one would be provided for him. At the beginning of the interview, Clyde Kuehn, the State's Attorney who prosecuted Davis, explained these rights to Davis:

MR. KUEHN: Okay. Now, listen to me. I want you to understand your constitutional rights. You understand?

MR. DAVIS: Yes, sir.

MR. KUEHN: Do you have a lawyer?

MR. DAVIS: Yes, sir.

* * * * * *

MR. KUEHN: You don't mind talking to me without having him here?

MR. DAVIS: No, I don't mind talking to you without having him here.

* * * * * *

MR. KUEHN: Now, do you understand that you have a right and you can remain silent?

MR. DAVIS: Right.

MR. KUEHN: You can have a lawyer, you've got a lawyer. Maybe if you haven't paid him, you can have one appointed. Do you understand that?

MR. DAVIS: Yes, sir.

Tr. of Oct. 28, 1980 at 113-14.

This exchange demonstrates that Davis waived his right to counsel. A waiver of the right to have an attorney present at a custodial interview, like the one at issue in this case, must be knowingly and voluntarily made. United States v. Morrison, 946 F.2d 484, 502 n. 4 (7th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 826, 121 L.Ed.2d 696 (1992). Kuehn explained Davis' right to an attorney; Davis therefore knew about this right. He also voluntarily decided to abandon this known right. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ("A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege."). Davis' express statements of waiver amply demonstrate that he waived his right to have an attorney present. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

Davis says that he lacked the requisite mental capacity to waive his right to counsel. Since Davis was competent to stand trial, (and does not claim otherwise) he was competent enough--and had the capacity--to waive his right to counsel. Godinez v. Moran, --- U.S. ----, ---- - ----, ----, 113 S.Ct. 2680, 2685-86, 2688, 125 L.Ed.2d 321 (1993). By expressly stating that he did not want an attorney present, Davis waived his right to counsel.

Next, Davis argues that Kuehn violated his Fifth Amendment right to remain silent. Toward the end of the interview, Davis told Kuehn that "I don't want to talk no more" and then, as the interview continued, said, "I don't want to talk about it any more." Tr. of...