Ross v. Hopper

Decision Date03 October 1983
Docket NumberNo. 82-8413,82-8413
Citation716 F.2d 1528
PartiesWillie X. ROSS, Petitioner-Appellant, v. Joe S. HOPPER, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, New York City, for petitioner-appellant.

Jan Hildebrand, Mary Beth Westmoreland, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE *, District Judge.

KRAVITCH, Circuit Judge:

On March 3, 1974, after a jury trial in the Superior Court of Colquitt County, Georgia, Willie X. Ross was convicted of armed robbery, kidnapping and murder. Sentences of life imprisonment, twenty years and the death penalty were imposed, respectively. The convictions and sentences were affirmed by the Georgia Supreme Court. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). Appellant then petitioned for state habeas corpus relief. After a hearing, relief was denied. That decision was affirmed in Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978). Appellant filed a petition for federal habeas corpus relief in the Southern District of Georgia. The matter was consolidated with two other cases in which the death penalty had been imposed. Mitchell v. Hopper, CV No. 478-132 and Spencer v. Zant, CV No. 179-247, reversed and remanded, 715 F.2d 1562 (11th Cir.1983). The petitions in each were denied. Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982); Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). This appeal ensued.

I. The Facts 1

On August 23, 1973, Willie X. Ross, Freddie Lee King, Rudy Turner, and Theodore Ross, appellant's brother, drove from Madison, Florida to the Clover Farms Highway Grocery at Moultrie, Georgia. When the store closed for the evening they followed the individual who closed the store to a nearby house in which the J.R. Stanford family lived. They then drove back to Madison.

The next evening, August 24, the four men returned to the Stanford home. Wearing stocking masks over their faces, they entered the home, held the family at gunpoint and went through the house collecting various valuables, including Mr. Stanford's .32 caliber pistol. Upon demanding the money from the grocery store, they were told it was in the possession of Robert Lee, who lived nearby, and that Wendell Norman, Stanford's son-in-law and Lee's partner in the grocery store, would return to the Stanford home later that night. When Norman arrived, he was ordered by the intruders to take Theodore Ross and King to get the money. Stanford's fourteen year-old stepdaughter was taken also as hostage. Appellant Willie Ross and Turner remained with other family members.

Theodore Ross and King, with Norman and the stepdaughter, drove to Lee's home, entered and proceeded to Lee's bedroom. When Norman awoke Lee and explained why they were there, Lee reached for his pistol and fired into the hallway. Either Theodore Ross or King returned fire and grabbed one of Lee's small sons, threatening to kill the child if Lee did not stop firing and turn over the money. Theodore Ross and King were given the cash box containing approximately $20,000 in cash and checks, and fled on foot. Norman then contacted the police.

Lieutenant Tommie Meredith of the Moultrie Police Department responded to the call and drove to the Stanford home, closely followed in a separate car by another officer. Members of the Stanford family testified that Meredith, armed with a shotgun, entered through the kitchen door confronting Turner, who, armed with a .22 caliber pistol, was crouching at the opposite end of a table in the adjoining dining room. Ross was seen standing against a wall near a refrigerator in the dining room and armed with Stanford's .32 caliber pistol. Turner, stating "I've got them right here," motioned for one of the family members to come toward him. The Stanfords, however, fled to a bedroom and closed the door. Immediately thereafter, both Stanford and the other police officer heard an exchange of gun fire. The officer, approaching the house from outside, saw and fired at two persons running from the house through the back yard.

The officer found Meredith's body on the kitchen floor, shot through the chest at point blank range. The pistol last seen in Turner's possession was discovered in the back yard, fully loaded, the cartridge in the firing chamber bearing an indentation indicating the pistol had misfired. The .32 caliber pistol belonging to Stanford and last seen in Willie Ross' hand seconds before the shooting, was found near the back-yard fence, one round having been fired from it. A micro-analyst for the State Crime Laboratory identified the bullet removed from Meredith's body as having been fired from the .32 caliber pistol.

Theodore Ross testified at appellant's trial that appellant had told him that he (Willie Ross) thought he had shot a policeman and that Turner's gun had misfired. Bobby Gamble, another State's witness, who had driven appellant back to Florida in the days subsequent to the incident, also testified that appellant had told him he thought he had killed a policeman. Appellant was apprehended in New York several months later, extradited to Georgia, and indicted for kidnapping, armed robbery and the murder of Lieutenant Meredith. We are here confronted only with challenges to the murder conviction and imposition of the death penalty. 2

II. The Claims

Appellant raises six challenges that were asserted in the court below: (1) under the authority of Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the death penalty constitutionally may not be imposed when appellant was convicted of felony murder and there was no specific finding by the state court that he killed, attempted to kill, or intended to kill; (2) the precepts of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) were violated by the state's knowing use of perjured testimony of appellant's brother Theodore that appellant had told Theodore he had shot a policeman; (3) the precepts of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) were violated by the state's failure to disclose evidence contradicting Theodore's statement that no promises had been made to him in exchange for his testimony against Willie; (4) the district court erroneously failed to hold an evidentiary hearing on appellant's challenge to the composition of the grand and traverse juries; (5) an evidentiary hearing also was required in regard to appellant's claim that the Georgia death penalty statute is applied in an arbitrary and racially discriminatory manner and with inadequate appellate review; and (6) the district court should have conducted an evidentiary hearing on appellant's claim that failure to grant a change of venue due to prejudicial pretrial publicity deprived him of a fair trial. Finally Ross, for the first time on appeal, contends that the charge to the jury in the sentencing phase of the trial did not adequately explain the function of mitigating circumstances, in violation of Spivey v. Zant, 661 F.2d 464 (5th Cir.1981); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). We address each in turn.

A. The Enmund Claim

Appellant asserts that the death penalty is disproportionate on the facts of this case in which he was convicted pursuant to a felony murder indictment and jury charge. Appellant relies on Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), decided three months after the district court denied habeas relief, to support his claim that, where the jury was allowed to convict him of murder only because of his participation in the robbery and in the absence of a finding that appellant killed, attempted to kill or intended to kill, the death penalty must be set aside. We disagree with appellant's reading of Enmund and the evidence in this case, and affirm.

In Enmund the defendant was convicted of murder under Florida law whereby an individual may be found guilty of first degree murder if he was present at the scene and actively aiding and abetting the commission of a felony, there a robbery or attempted robbery, during the course of which someone is killed, even though the individual neither took life nor possessed a premeditated design or intent to take life. The Florida Supreme Court held that, at the most, the evidence showed that Enmund drove the get-away car for the persons who committed the robbery and the killing and concluded that, without regard to Enmund's intent to kill, the evidence was sufficient to allow the jury to convict and sentence Enmund to death as an aider and abetter in a robbery. The United States Supreme Court reversed, concluding that "[b]ecause the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken," 102 S.Ct. at 3379 (emphasis supplied), the death penalty was disproportionate to Enmund's crime.

The Court stated:

The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund's own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims; for we insist on "individualized consideration as a constitutional requirement in imposing the death sentence," Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (footnote omitted), which means that we must focus on "relevant facets of the character and record...

To continue reading

Request your trial
38 cases
  • Stephens v. Kemp
    • United States
    • United States Supreme Court
    • November 26, 1984
    ...should not vacate its stay, until after the Court of Appeals for the Eleventh Circuit has decided the consolidated cases of Ross v. Hopper, 716 F.2d 1528 (1983), rehearing en banc granted, 729 F.2d 1293 (1984), Spencer v. Zant, 715 F.2d 1562 (1983), reconsideration en banc stayed, 729 F.2d ......
  • Moore v. Zant, 84-8423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 4, 1984
    ...338 (N.D.Ga.1984), app. pending, 729 F.2d 1293, No. 84-8176 (to be argued before 11th Cir., en banc, in June, 1984); Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983), vacated for reh'g en banc, 729 F.2d 1293 (11th 8) Petitioner received ineffective assistance of counsel during the sentencing p......
  • Birt v. Montgomery, 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 13, 1984
    ...allegations, if proved, would establish the right to habeas relief." Id. at 307, 83 S.Ct. at 754. See also Ross v. Hopper, 716 F.2d 1528, 1534 (11th Cir.1983); Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981) (en banc); 6 Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 ......
  • Riley v. State
    • United States
    • United States State Supreme Court of Delaware
    • July 9, 1984
    ...cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Stephens v. Kemp, 11th Cir., 721 F.2d 1300 (1983); Ross v. Hopper, 11th Cir., 716 F.2d 1528 (1983). Finally, the fact that the jury found Riley guilty of intentional murder conclusively establishes the inapplicability of Enmu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT