Romine v. Head
| Decision Date | 15 June 2001 |
| Docket Number | No. 99-12449,99-12449 |
| Citation | 253 F.3d 1349 |
| Parties | (11th Cir. 2001) LARRY ROMINE, Petitioner-Appellant, v. FREDERICK J. HEAD, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 96-00102-2-CV-WCO
Before CARNES, BARKETT and MARCUS, Circuit Judges.
This is a death penalty case. The Georgia Supreme Court succinctly summarized the key facts concerning the crime as follows: "Larry Romine, a former gospel singer and occasional preacher whose descent into a life of drugs and adultery met with severe parental disapproval and opposition, entered his parents' home one day while they were at work, waited for their return, and then killed them both with a .16 gauge shotgun." Romine v. State, 350 S.E.2d 446, 448 (Ga. 1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912 (1987). The murder occurred twenty years ago and since then, to put it in colloquial terms, the case has been tied up in the courts. For reasons we will explain, more court proceedings are to come.
For what he did to his parents, Romine was convicted by a jury of two counts of murder and one count of armed robbery. He was sentenced to death on the two murder counts and to life imprisonment on the armed robbery count. In the initial appeal, the Georgia Supreme Court affirmed all of the convictions and the life sentence on the armed robbery count, but it reversed the death sentences on the murder count because Romine had been denied a continuance he needed to present a mitigating circumstance witness. See Romine v. State, 305 S.E.2d 93 (Ga. 1983).
At the resentencing trial in 1985 the jury in deciding upon a death sentence found the existence of one statutory aggravating circumstance as to each murder. The aggravating circumstance as to the murder of Romine's mother was that he committed it while robbing her (of her purse and a paycheck), and the aggravating circumstance as to the murder of Romine's father was that he committed it while he was also engaged in committing the murder of his mother. See Romine, 350 S.E.2d at 456-57. The Georgia Supreme Court affirmed the two death sentences on direct appeal. Id. at 457.
After losing on direct appeal, Romine pursued state collateral relief. In 1989 he filed a state habeas corpus petition in the Superior Court of Butts County, Georgia, which was finally denied in an unpublished order in 1993. The Georgia Supreme Court denied Romine's application for a certificate of probable cause to appeal the trial court's denial of collateral relief, and the United States Supreme Court denied certiorari in that proceeding in 1994. See Romine v. Zant, 512 U.S. 1213, 114 S. Ct. 2694 (1994).
In 1996, Romine filed a federal habeas corpus petition in the Untied States District Court for the Northern District of Georgia, which the court denied in 1999. This is the appeal from that denial.
Romine raises two issues that merit discussion, one relating to an arguable conflict of interest by trial counsel and the other involving the prosecutor's reliance upon Biblical authority during closing argument.1
Romine was married to Diane Romine when the events relevant to this appeal occurred. On February 15, 1982, she appeared pro se before Pickens County Superior Court Judge Frank Mills, III, and pleaded guilty to charges of forgery and theft by taking. The forgery charges stemmed from her involvement in a scheme to obtain prescription drugs by presenting forged prescriptions to pharmacies, and the theft by taking charge stemmed from her having stolen some prescription pads from a doctor's office.2 During the plea colloquy, Mrs. Romine confirmed to Assistant District Attorney George Weaver that no promises had been made to her and that she had not been offered lighter treatment for telling the truth. After Weaver presented testimony from three witnesses who described Mrs. Romine's role in the crimes, Judge Mills sentenced her to ten years, five to serve and five on probation.
George Thomas, along with his partner Mark Shriver, defended Romine at his original trial. In his investigation of Romine's case, Thomas was frustrated by the reluctance of many witnesses, including Diane Romine, to provide information about the facts surrounding the murders. Meanwhile, Thomas was himself jailed on charges of contempt in another case, and he ended up in a jail cell with Mrs. Romine and several other women. (Apparently, the jailer put Thomas in the women's cell as a joke.) During their quality time together, Mrs. Romine told Thomas why she was incarcerated and asked him to intervene on her behalf "to see that she got the sentence she was promised and not the sentence that she got." Thomas agreed to represent Mrs. Romine in that regard. He did so in order to elicit information about Romine's case from the formerly uncooperative Mrs. Romine and to enlist her help in his defense of Romine.
On March 12, 1982, seventeen days before Romine's first trial began, Diane Romine came back before Judge Mills for a reduction of sentence. Although she was represented in that matter by George Thomas, the impetus for the reduction of sentence came from Judge Mills. He set the matter in motion, and ultimately reduced the sentence so that instead of serving five years in jail followed by five years of probation, Mrs. Romine would only serve one year in jail to be followed by nine years of probation. Judge Mills acted on his own, in part because of some information that had come to his attention. The DA's office took no position on whether Mrs. Romine's sentence should be reduced.
Thomas did not represent Mrs. Romine in any matter after her March 12, 1982 sentence reduction proceeding.3
Thomas had heard rumors while investigating Romine's case that Mrs. Romine had made a deal with the state to receive a lenient sentence in her forgery case.4 However, he was unable to substantiate any of those rumors.5 On July 21, 1981, before Romine's first trial began, Thomas filed a motion to require the state to reveal any deals between the state and Mrs. Romine. At the August 5, 1981 hearing on that motion, District Attorney Rafe Banks, the lead prosecutor at Romine's first trial, stated that he did not know of any deals between the District Attorney or the Georgia Bureau of Investigation ("GBI") and Mrs. Romine. Mrs. Romine herself testified that there was no deal between her and the state regarding Romine's case. In other words, Thomas' motion to have any deals revealed was granted, but the response was that no deal existed.
The first trial began on March 29, 1982, and included a familiar cast of characters: Diane Romine appeared as a witness for the State; Judge Frank Mills, III, who issued both the original and the amended sentences in Mrs. Romine's case, presided over the trial; George Thomas, who represented Mrs. Romine at her sentence reduction proceeding, was one of two attorneys for the defense; and George Weaver, the prosecutor in Mrs. Romine's case and at her sentence reduction proceeding, helped prosecute the case against Romine.
That same day, and soon after the trial began, Thomas filed a renewed motion to require the State to reveal any deals with Mrs. Romine. He did so because Mrs. Romine's sentence had been reduced just seventeen days earlier. At the hearing on that motion, Judge Mills stated into the record that he had reduced Mrs. Romine's sentence independently from the district attorney's office. The judge explained that he had acted on his own to reduce Mrs. Romine's sentence for several reasons. One was that a co-defendant, Ginger McIntyre, had testified that Mrs. Romine was not as culpable in committing the forgeries as Ms. McIntyre had depicted her to be during other testimony. The judge was also moved to be more lenient towards Mrs. Romine by correspondence he had received pertaining to her, including a letter from her parents, and because her co-defendants had received relatively light sentences. To the judge's knowledge, and he is the one who reduced her sentence, there was no deal between the State and Mrs. Romine.6
When Mrs. Romine appeared as a witness for the State at the first trial, she testified about Romine's drug use, his adultery, and about certain events that occurred after his parents were killed. Thomas cross-examined Mrs. Romine, but did not attempt to impeach her with her prior convictions, her sentence reduction in the forgery case, or her possible deals with the State. At the conclusion of that cross-examination, Judge Mills called Thomas to the bench and asked him about his failure to use Mrs. Romine's prior convictions to impeach her. Thomas told the judge that he was aware he could impeach Mrs. Romine with her prior convictions and that he had obtained certified copies of those convictions for that purpose, but said that he had not decided whether to make use of them. Thomas then reserved the right to recall Mrs. Romine for cross-examination. He never did so. When Thomas was questioned approximately ten years later at the state habeas hearing about his failure to impeach Mrs. Romine at Romine's original trial, he could not remember why he did not bring up her previous convictions.
The state habeas court rejected Romine's claim that attorney Thomas labored under a conflict of interest because of his representation of Mrs. Romine in connection with her resentencing. The judge reasoned that because Thomas was not representing Mrs. Romine at the time of the trial there was no evidence of any actual conflict of interest, and "Mr. Thomas' actions vis-a-vis Diane Romine did not result in any adverse impact on petitioner because Mr. Thomas was acting in an effort to help petition...
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