Douglas v. Wainwright

• Decision Date: 19 September 1983
• Docket Number: No. 81-5927,81-5927
• Parties: 9 Media L. Rep. 2457 Howard Virgil Lee DOUGLAS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, and David H. Brierton, Superintendent of Florida State Prison at Starke, Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1532

714 F.2d 1532

9 Media L. Rep. 2457

Howard Virgil Lee DOUGLAS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of

Offender Rehabilitation, and David H. Brierton,

Superintendent of Florida State Prison

at Starke, Florida,

Respondents-Appellees.

No. 81-5927.

United States Court of Appeals, Eleventh Circuit.

Sept. 19, 1983.

Rehearing and Rehearing En Banc Denied Oct. 21, 1983.

Larry Helm Spalding, Sarasota, Fla., Steven M. Goldstein, Assoc. Prof. Fla. State Univ., Tallahasee, Fla., for petitioner-appellant.

Alan Ellis, Philadelphia, Pa., for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Louis G. Carres, Public Defender, West Palm Beach, Fla., for amicus curiae Florida Public Defenders Ass'n.

Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

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

Before RONEY and KRAVITCH, Circuit Judges and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Howard Virgil Lee Douglas was convicted by a Florida state court of murder in the first degree. In the second phase of a bifurcated trial, the jury unanimously recommended life imprisonment, rejecting imposition of the death penalty. The trial judge, however, found that the murder was "especially heinous, atrocious and cruel," that "no evidence of mitigating circumstances was produced," and imposed the death penalty. The conviction was affirmed by the Florida Supreme Court in Douglas v. State, 328 So.2d 18 (Fla.) (Douglas I), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976), reh. denied, 429 U.S. 1055, 97 S.Ct. 770, 50 L.Ed.2d 771 (1977). The Florida Supreme Court affirmed the denial of a subsequent motion for state post-conviction relief but issued a stay of execution. Douglas v. State, 373 So.2d 895 (Fla.1979) (Douglas II). Douglas then petitioned for federal habeas relief pursuant to 28 U.S.C. § 2254. The federal district court denied the habeas corpus petition in all respects. Douglas v. Wainwright, 521 F.Supp. 790, 807-08 (M.D.Fla.1981).

We affirm in part and reverse in part and remand.

I. Background

Appellant was convicted of the murder of Jesse Atkins. The motive apparently arose from a classic "love triangle" in which Helen Atkins ("Atkins"), wife of the deceased, had been romantically involved with appellant, having lived with him for a year prior to her marriage to Mr. Atkins. She and her husband were frequently separated and Atkins and Douglas maintained contact during that period.

On the afternoon of July 16, 1973, twenty year old Atkins and her husband drove to Bowling Green, Florida to collect belongings from a trailer Atkins rented and from which her eviction was threatened. On the return trip to Fort Green, appellant drove up beside the Atkins and ordered them to pull to the side of the road. Appellant, armed with a rifle, got into their car and ordered them to proceed according to his directions. During this trip the car became stuck on a back road. All three walked to a nearby mining operation where a man was found who returned with a truck to extricate the car. The three then drove to a wooded area near Brewster, Florida.

Appellant at gun point forced the victim and Atkins to undress and perform sexual acts, and then struck Mr. Atkins on the head with his rifle, shattering the rifle stock. Appellant next fired multiple shots into the victim's head.

According to Atkins, she and appellant drove away in the Atkins' car until it again stalled. Appellant then directed Atkins to engage in sexual activities with him. Following this they walked several miles to where appellant's truck was parked and drove to the trailer home of Atkins' mother-in-law to pick up her two children. Atkins testified that she did not tell her deceased husband's parents about the murder because of appellant's threats to kill them all. Atkins, Douglas and the children all returned to the scene of the murder where Atkins and Douglas dragged the body into some underbrush and covered it. They then started the Atkins' automobile which Atkins drove away. Douglas followed driving his own truck. Atkins and her children lived with Douglas at her trailer for nine days following the murder, until authorities independently discovered Mr. Atkins' body.

Douglas was indicted on charges of first degree murder, tried by a jury and convicted. At trial, Atkins, as the only eyewitness to the crime, was the prosecution's key witness. During her testimony, on motion by the state and over the objection of defense counsel, the judge excluded the general public from the courtroom. The families of the defendant, the witness, and the decedent and members of the press were allowed to remain.

At the sentencing phase of the bifurcated trial, the jury recommended imposition of a life sentence. After taking the sentence under advisement for ten weeks, the trial judge issued an order of Judgment and Sentence, adjudging appellant guilty and imposing the death penalty. Before imposing sentence the trial judge requested and received a presentence investigation report to be used to identify any mitigating circumstances. The presentence report on which the court relied identified several prior felony and misdemeanor convictions of appellant. All but one of the felony convictions previously had been invalidated because they were "uncounseled convictions" imposed in disregard of appellant's right to counsel.

II. Public Trial Issue

Douglas contends that his sixth and fourteenth amendment right to a public trial, as applied to the states through the fourteenth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), was violated by the exclusion of members of the general public from the courtroom during the testimony of Atkins, who was the prosecution's key and only eyewitness to the crime. Conceding that the right to a public trial is not absolute and that it must, in some instances, be balanced against other competing societal interests, appellant argues alternatively that even if the exclusion did not violate his public trial right per se, the trial judge's failure to hold a hearing on the exclusion motion or to make findings as to the necessity for the closure violated appellant's sixth amendment right.

Immediately prior to Atkins' testimony concerning the events leading up to and following the death of her husband, the state moved for the exclusion from the courtroom "of all except necessary Court personnel." Douglas v. Wainwright, 521 F.Supp. 790, 795 (M.D.Fla.1981). The colloquy between the parties was as follows MR. CAMPBELL: I am making a motion that due to the nature of the testimony of the next witness, Helen Atkins, that the Court order that the Courtroom be cleared of all except necessary Court personnel.

MR. KIRKLAND: The Defense will object, because she's not a person of young and tender years. There are ladies on the jury that are going to have to hear this and I think she should confront society with her testimony as well.

I think the Defendant has a right to a fair trial and to a public trial.

MR. CAMPBELL: Your Honor, I think that regardless of whether she's a person of young and tender years--I'm not sure how far that goes ...

THE COURT: Let me see you gentlemen up here. (Counsel approached the bench.)

THE COURT: Do you feel that this is so embarrassing to her ...

MR. CAMPBELL: It could be, Your Honor.

THE COURT: ... do you feel this is embarrassing to her or are you trying to save the women in ...

MR. CAMPBELL: I think its not only embarrassing to her, Your Honor, I think that it's such that I don't see any reason for some of the people in the audience to sit and listen to this sort of testimony, as I've indicated to the jury.

I don't see any reason that anybody ought to hear it unless it's absolutely necessary.

THE COURT: Is [sic] there any members of the Defendant's family in the audience?

MR. CAMPBELL: Yes, Your Honor.

THE COURT: How many?

MR. KIRKLAND: One or two.

THE COURT: Is the Press here?

MR. KIRKLAND: I assume there are members of the Press.

Id. at 795, quoting II Trial Transcript 213-14. The judge then instructed the jury:

THE COURT: Ladies and gentlemen, a motion has been made that the--due to the nature of the testimony as anticipated by the State to be produced--that the Courtroom be cleared of all personnel who are not part of the official actions in this case.

Our Constitution and laws provide for a public trial and this is the right of every individual. I wish to assure the guarantee of a public trial and I will permit members of the family of the Defendant here. ...

MR. CAMPBELL: Then you ought to also permit the members of the family of the deceased.

THE COURT: ... and the members of the family of Jessie William Atkins, Jr. ...

MR. CAMPBELL: ______ and Helen Atkins.

THE COURT: ... and Helen Atkins and the representatives of the Press. Other than that, I would like everyone else to leave and--until this phase of the case has been completed. (The spectators left the Courtroom.)

Id. at 793-94, quoting II Trial Transcript 214-15.

The United States Supreme Court has never specified whose presence, at a minimum, must be allowed to ensure a defendant a constitutionally guaranteed public trial. ¹ But see In re Oliver, 333 U.S. 257, 259, 68 S.Ct. 499, 500, 92 L.Ed. 682 (1948) (conviction for contempt with only judges and perhaps staff members and prosecutor present violates right to public trial). However, Justice Harlan, in his concurring opinion in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), stated:

Essentially, the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and "public ...