716 F.2d 1511 (11th Cir. 1983), 81-7418, Moore v. Balkcom

Docket Nº:81-7418.
Citation:716 F.2d 1511
Party Name:William Neal MOORE, Respondent, Cross-Petitioner, v. Charles BALKCOM, Warden, Arthur K. Bolton, Attorney General, Petitioners, Cross-Respondents.
Case Date:September 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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716 F.2d 1511 (11th Cir. 1983)

William Neal MOORE, Respondent, Cross-Petitioner,

v.

Charles BALKCOM, Warden, Arthur K. Bolton, Attorney General,

Petitioners, Cross-Respondents.

No. 81-7418.

United States Court of Appeals, Eleventh Circuit

September 30, 1983

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Charles E. Brown, George M. Weaver, Atlanta, Ga., for petitioners, cross-respondents.

Professor Daniel J. Givelber, Northeastern University School of Law, Professor Donald Berman, Boston, Mass., for respondent, cross-petitioner.

Appeals from the United States District Court for the Southern District of Georgia.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion June 23, 1983, 11 Cir., 1983, 709 F.2d 1353)

Before HILL and HENDERSON, Circuit Judges, and GARZA [*], Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

The petition for rehearing is granted. The prior panel opinion, issued June 23, 1983, is withdrawn and the following opinion is substituted in its place.

Petitioner, William Neal Moore, was convicted of malice murder and armed robbery 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 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 committed constitutional error in imposing the death sentence on the basis of nonstatutory aggravating circumstances. In Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court addressed the issue of whether a death penalty imposed under the Georgia death penalty scheme based on three statutory aggravating circumstances, one of which was subsequently held to be invalid by the Georgia Supreme Court, can be constitutionally upheld. The Court held that the narrowing function of statutory aggravating factors is achieved when the sentence is supported by at least one statutory aggravating circumstance. This decision controls, and is contrary to, our previous conclusion that the sentence must be vacated. Accordingly, we reverse the judgment of the district court on this issue.

I. Procedural History

A state grand jury indicted petitioner for the April 2, 1974 malice murder and armed robbery of Fredger Stapleton. At a hearing conducted by Judge Walter C. McMillan, 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 petitioner to death.

The Georgia Supreme Court conducted its mandatory review of the death sentence in accordance with the Georgia statutory procedure. Ga.Code Ann. Sec. 17-10-35 (1982) (formerly Ga.Code Ann. Sec. 27-2537). The court affirmed petitioner's conviction and sentence in a per curiam opinion, with one judge dissenting, and denied Moore's petition for rehearing. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975). The United States Supreme Court denied Moore's petition for certiorari. Moore v. Georgia, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976).

Moore then filed a declaratory judgment action in state court seeking a new sentencing

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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 corpus action in state court. The court denied all relief and the Georgia Supreme Court denied Moore's application for a certificate of probable cause to appeal.

Petitioner filed the present habeas corpus action on November 23, 1978 in the federal district court for the Southern District of Georgia. On April 29, 1981, 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.

II. Facts

At the time of Fredger Stapleton's death, Moore was an enlisted man in the United States Army. In connection with his military service, Moore met George Curtis, a nephew of Fredger Stapleton. Curtis told Moore that Mr. Stapleton kept a large sum of money at his home. At first, Moore and Curtis planned to rob the victim together and to set fire to the house with Stapleton inside. After entering Stapleton's house, Curtis and Moore found a locked door. Curtis became frightened and the two returned to Curtis' house. Subsequently Moore returned to Stapleton's house alone. However, he armed himself with a .38 caliber pistol in case 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 shotgun blast at Moore which missed. Stapleton 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.

After the shooting, Moore removed two billfolds from the victim's pockets and took the shotgun. The money taken from Stapleton totaled approximately $5700. Moore was subsequently arrested and cooperated with the police during the investigation.

III.

  1. Imposition of Sentence

    The district court, holding that the Georgia Supreme Court did not properly discharge its statutory duty of appellate review, concluded that the imposition of the death penalty in this case "shocks the conscience" 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 aggravating circumstance. 1 Ga.Code Ann. Sec. 17

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    -10-31 (1982) (formerly Ga.Code Ann. Sec. 26-3102). If the sentencing authority elects to impose the death penalty, it must specify the aggravating circumstance which it found beyond a reasonable doubt. Ga.Code Ann. Sec. 17-10-30(c) (1982) (formerly Ga.Code Ann. Sec. 27-2534.1(c). Whenever the death penalty is imposed, the Georgia Supreme Court must conduct an expedited review of the case. Ga.Code Ann. Sec. 17-10-35 (1982) (formerly Ga.Code Ann. Sec. 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 aggravating circumstance, and "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Ga.Code Ann. Sec. 17-10-35(c) (1982) (formerly Ga.Code Ann. Sec. 27-2537(c)).

    In the case at bar, Judge McMillan sentenced Moore to death after finding that petitioner had committed a capital offense, malice murder, 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 supported by the record. See Ga.Code Ann. Sec. 17-10-30(b)(2) (1982) (formerly Ga.Code Ann. Sec. 27-2534.1(b)(2)). After reading his order and announcing the sentence which he imposed, 2 Judge McMillan continued:

    [F]or the purposes of this Court, for this finding, I could not in good conscience apply in your case sufficient to wipe out the aggravating statutory circumstances. 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 place 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, not 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 necessarily 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 such a situation. 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 aggravated circumstances will probably warrant the electric chair without life imprisonment. That justifies me in making the finding that I made.

    In granting relief from the sentence, the district court found that the sentence 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 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 proportionality review on this basis and concluded that the death penalty in the case at bar "shocked the conscience."

  2. District Court's Analysis

    Judge Edenfield held that the death penalty was unconstitutionally imposed in this case after concluding that the Georgia Supreme Court erred in performing

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    its proportionality review. In upholding the constitutionality of the Georgia sentencing procedure, the...

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