Spivey v. Zant

• Decision Date: 16 November 1981
• Docket Number: No. 80-7243,80-7243
• Citation: 661 F.2d 464
• Parties: Ronald K. SPIVEY, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 464

661 F.2d 464

Ronald K. SPIVEY, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 80-7243.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 16, 1981.

Jeffrey D. Colman, Jenner & Block, Michael Shepard, Chicago, Ill., for petitioner-appellant.

William B. Hill, Staff Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before DYER, TJOFLAT and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

On June 30, 1977, a jury in the Superior Court of Muscogee County, Georgia, convicted the petitioner, Ronald Keith Spivey, of one count each of murder and kidnapping and two counts each of aggravated assault and armed robbery. In a separate sentencing proceeding, the same jury recommended that Spivey be sentenced to death on the murder charge. The trial judge followed that recommendation and sentenced Spivey to death; he sentenced Spivey to life imprisonment on the armed robbery charges, twenty years on the kidnapping charge, and ten years on each assault charge.

The Supreme Court of Georgia affirmed the conviction and the death sentence, and the Supreme Court of the United States denied certiorari. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978).

Spivey then filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. That court conducted an evidentiary hearing and then denied the petition. Spivey's application to the Supreme Court of Georgia for a certificate of probable cause to appeal was denied, and the Supreme Court of the United States denied certiorari. Spivey v. Zant, 444 U.S. 957, 100 S.Ct. 438, 62 L.Ed.2d 330 (1979).

On December 20, 1979, Spivey filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia and requested an evidentiary hearing. The district court issued its order on February 29, 1980, denying Spivey's request for an evidentiary hearing and his petition for the writ.

On appeal, petitioner asserts three grounds for relief from his death sentence: (1) that the Georgia trial court's capital sentencing instructions to the jury were constitutionally inadequate; (2) that the prosecutor's argument to the jury during the sentencing phase of the trial was improper and prejudicial in violation of the eighth and fourteenth amendments; (3) that the trial court's dismissal for cause of a particular venireman was improper because the venireman's expressions of misgivings about capital punishment fell short of the unequivocal unwillingness to impose the death penalty which is required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). For reasons set out in Part II of this opinion, we hold that the state trial court's sentencing instructions were constitutionally inadequate, and we therefore reverse the federal district court's judgment to the contrary. So holding, we do not reach Spivey's second and third challenges to his death sentence. ¹

Petitioner also asserts three grounds for relief from his conviction: (1) that in violation of the sixth and fourteenth amendments, the trial court deprived him of guidance from counsel in the preparation of his defense by compelling him over his objection to undergo a sanity examination without notice of the purpose of the examination, at a time when he was not represented by counsel and had not raised an insanity defense; (2) that the State's introduction into evidence of the testimony of the psychiatrist who conducted the sanity examination violated petitioner's fifth and fourteenth amendment rights; ² (3) that he was deprived of the effective assistance of counsel because of his attorney's failure to investigate, prepare, and effectively present an insanity defense and to develop a single mitigating circumstance in this capital case. For reasons set out in Part III of this opinion, we hold that the district court erred in denying petitioner's request for an evidentiary hearing concerning the deprivation of his sixth and fourteenth amendment rights associated with the sanity examination, and we therefore remand for an evidentiary hearing. Since the district court's determination of the sixth amendment issue on remand may render decision on the fifth amendment claim superfluous, we do not reach that issue. Finally, for reasons set out in Part IV, we affirm so much of the district court's judgment as denied petitioner relief based on ineffective assistance of counsel.

II.

In the sentencing phase of Spivey's trial, following jury arguments by both sides, the trial court instructed the jury:

Ladies and gentlemen, you have found the defendant guilty of the offense of murder. It is now your duty to determine, within the limits prescribed by law, the penalty that shall be imposed as punishment for that offense. In reaching this determination you are authorized to consider all of the evidence received by you in open Court, and both phases of the trial. You are authorized to consider all the facts and circumstances of the case.

Under the laws of this State, every person guilty of the offense of murder, shall be punished by life in the penitentiary, or death by electrocution.

I charge you that before you would be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances, as I will define to you later in the charge, sufficient to authorize the supreme penalty of the law.

I charge you that a finding of statutory aggravating circumstance shall only be based upon evidence convincing your mind beyond a reasonable doubt as to the existence of one, or of the factual condition in connection with the defendant's perpetration of acts for which you have found him guilty. (Sic)

Now, the law provides certain aggravating circumstances which you may consider for this purpose. If the offense of murder was committed while the offender was engaged in the crime of another capital felony, in this case, the capital felony charged by the State is that of armed robbery, I have given you in charge, you have received the definition of armed robbery.

The statutory instructions that you are authorized to consider will be submitted in writing to you the jury for your consideration. If you fix his punishment as death, you must also designate in writing that aggravating circumstance which you find beyond a reasonable doubt.

Your verdict must be agreed to by all twelve of your members, it must be in writing, entered upon the indictment, dated and signed by your foreman, and returned in to Court for publication.

You may retire and begin your deliberations, after you have received the indictment and documented evidence adduced in the pre-sentence hearing, and then determine the penalty or punishment that shall be imposed in this case. You must first consider and find beyond a reasonable doubt that the aggravating circumstance, or the murder happening while in the perpetration of another capital felony, armed robbery; armed robbery is a capital felony, you must find that beyond a reasonable doubt.

If you find that to exist, then you shall so indicate in writing, then you will determine whether or not you will impose the death penalty, and your verdict then will be one of two: "We the jury recommend the death penalty," or "We the jury do not recommend the death penalty." That is a matter for your determination, ladies and gentlemen.

You will have this in writing to carry out with you to assist you in preparation of your verdict. You may retire at this time and fix punishment in this case.

Petitioner asserts that the charge did not mention or define mitigating circumstances, did not instruct the jury that it could apply principles of mitigation, and did not identify a particular mitigating circumstance of which there was evidence and which was well-founded in Georgia law. ³ Spivey contends that such an instruction is violative of the eighth and fourteenth amendments. To address this claim, we first determine what instructions on mitigation, if any, the eighth and fourteenth amendments require in a sentencing charge, and then test the charge in Spivey's case by that standard.

The United States Supreme Court struck down the death penalty in Georgia and in thirty-nine other states in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), holding that the death penalty could not be imposed under a sentencing procedure that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion). After Furman, Georgia enacted a new death penalty statute. The Supreme Court reviewed that statute and the statutes of four other states in 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (plurality opinion). In those cases, the Court established that a death sentence could be imposed if a state fulfilled its "constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty." Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (plurality opinion). See Gregg v. Georgia, 428 U.S. at 188-195, 96 S.Ct. at 2932-2936. Accordingly, the constitution requires that a state death sentencing procedure "allow the particularized consideration of relevant...