716 F.2d 780 (11th Cir. 1983), 83-8028, Brooks v. Francis

Docket Nº:83-8028.
Citation:716 F.2d 780
Party Name:William Anthony BROOKS, Petitioner, v. Robert FRANCIS, Warden, Georgia Diagnostic and Classification Center, Respondent.
Case Date:September 15, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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716 F.2d 780 (11th Cir. 1983)

William Anthony BROOKS, Petitioner,


Robert FRANCIS, Warden, Georgia Diagnostic and

Classification Center, Respondent.

No. 83-8028.

United States Court of Appeals, Eleventh Circuit

September 15, 1983

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Stephen B. Bright, Atlanta, Ga., for petitioner.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.

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

Before FAY, HENDERSON and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

William Anthony Brooks seeks reversal of the district court's denial of habeas corpus relief pursuant to 28 U.S.C.A. Sec. 2254. He is under a sentence of death for the rape, kidnapping, armed robbery, and murder of a young woman. We remand for a new sentencing hearing.

I. Facts

In July, 1977, Carol Jeannine Galloway, a young, popular, piano teacher and choir director, was abducted from her mother's home in Columbus, Georgia. Carol was white, single, and twenty-three years old. At the time of the abduction, the Columbus news media was giving extensive coverage to a series of brutal murders occurring in the community, including the killing of four white women in their homes by an unknown "silk stocking strangler."

On the morning of Carol's abduction, she planned to meet a friend for breakfast. Shortly after Carol left the house to get into her automobile, her mother went to the side door. Mrs. Galloway, the mother, noticed that Carol was in the utility room at the end of the carport; she would not come out when called.

When called a second time, Carol responded that she was searching for something. When Mrs. Galloway offered to help, Carol replied, "No, go back into the house, I'll call you whenever I find it and get ready to go." Perceiving that something was wrong, Mrs. Galloway returned to the house to call for help. Before she was able to reach anyone, Carol's friend called to ask why Carol had not yet picked her up. Going back to the door, Mrs. Galloway saw Carol in her automobile backing out of the driveway with a black male sitting in the automobile beside her.

Carol's automobile was found abandoned later that day. A search of the automobile produced a brown lady's wallet containing ninety-eight cents and personal papers belonging to Carol. That same morning several people saw a male, identified at trial as Brooks, walking through the community where police investigators found the automobile. He wore no shirt, and his pants were covered with mud. Brooks asked several of these people to drive him either to Wynnton or the Columbia Heights area. In each instance, the person refused. Finally, Brooks came upon Morris Comer, who agreed to drive him to the Columbia Heights area for five dollars. During the trip, Brooks told Comer that police officers had shot at him in the woods, and he had fallen into a ditch and gotten his pants muddy. Comer left Brooks at a street corner; Brooks paid Comer six dollars.

The next day, police officers found the body of Carol Jeannine Galloway. She had been raped, and her death resulted from a single gunshot to the neck. Upon Brooks's arrest in Fulton County, he made two statements to the police. In the first statement, he stated that he found Galloway's automobile with the keys in it, that he drove it, that he wrecked it, and that he ran away. In the second statement, Brooks admitted all the elements of the offenses for which he stands convicted. According to his

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statement, after he raped Carol, he pointed his pistol at her to keep her from screaming, and the pistol went off. He then ran away.

II. Procedural History

Brooks was convicted of murder, kidnapping, rape, and armed robbery in the Superior Court of Muscogee County, Georgia. The court sentenced Brooks to death on the murder charge, to life imprisonment on the kidnapping and rape charges, and to twenty years imprisonment on the armed robbery charge. On automatic appeal to the Supreme Court of Georgia, all convictions and sentences were affirmed. See Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979).

On writ of certiorari to the United States Supreme Court, the Court vacated the decision of the Georgia Supreme Court, but left intact the death penalty, remanding the case for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Brooks v. Georgia, 446 U.S. 961, 100 S.Ct. 2937, 64 L.Ed.2d 821 (1980). On remand, the Supreme Court of Georgia reviewed the death penalty pursuant to the seven statutory aggravating circumstances in the Georgia death penalty statute and again affirmed the death sentence. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980).

The United States Supreme Court denied a second petition for writ of certiorari. Brooks then filed a petition for habeas corpus relief in state court. Relief was denied. The Supreme Court of Georgia later denied Brooks's (1) application for a certificate of probable cause to appeal, and (2) application for reconsideration. In July, 1982, Brooks filed a third petition for writ of certiorari in the United States Supreme Court. The Supreme Court denied the petition. Brooks v. Zant, --- U.S. ----, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982).

When ordered executed, Brooks petitioned for habeas corpus relief in the United States District Court for the Middle District of Georgia, Columbus Division, and moved for a stay of execution order. The district court denied habeas corpus relief without conducting an evidentiary hearing, concluding that a full and fair hearing had been held in state court. The district court also denied the request for a stay of execution order.

The Eleventh Circuit Court of Appeals granted Brooks's request for a certificate of probable cause to appeal, stayed the pending execution, expedited the appeal, and set the case for oral argument.

III. Issues

The standard of review for habeas corpus petitions by state prisoners in federal court is enunciated in 28 U.S.C.A. Sec. 2254(d). 1 This court may not presume

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the correctness of the findings of the state court if it determines that the habeas corpus applicant did not receive a full, fair, and adequate hearing in the state proceeding, or that the applicant was otherwise denied due process of law in the state court proceeding. 28 U.S.C.A. Sec. 2254(d)(6), (7). The presumption of correctness afforded state proceedings does not apply to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Hance v. Zant, 696 F.2d 940, 946 (11th Cir.1983).

The issues we are called upon to decide are (1) whether the trial court properly declined to grant a change of venue; (2) whether prosecutorial misconduct at the guilt and sentencing stages of trial constituted prejudicial error; (3) whether the introduction of non-statutory aggravating evidence at the sentencing phase of the trial constituted reversible error; (4) whether the trial court impermissibly restricted the admission of mitigating evidence at the sentencing phase of the trial; (5) whether the trial court's instructions to the jury concerning aggravating circumstances were proper; (6) whether the trial court's instructions to the jury on intent impermissibly shifted the burden to the defendant to prove a crucial element of the offense; and (7) whether jurors were improperly excluded from participation based upon their opposition to the death penalty; and (8) whether the district court properly declined to grant an evidentiary hearing. In order to "leave tracks" in the event of future litigation, we discuss all issues presented.

IV. Change of Venue

Brooks contends that pre-trial publicity relating to Carol Galloway's death, his arrest, and his trial violates the due process standards established in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In Irvin, the Supreme Court vacated a death sentence because of pre-trial publicity. The Court held that a change of venue should have been granted where widespread publicity concerning a murder was of such a nature that (1) citizens on the street openly discussed the presumed guilt of the defendant on radio with roving reporters, (2) newspapers published a barrage of articles, pictures, and cartoons for the six or seven months preceding defendant's trial, and (3) newspaper articles discussed the defendant's juvenile conviction, his conviction for arson twenty years previously, and details of his military court martial charges. 366 U.S. at 725, 81 S.Ct. at 1644.

In Rideau, where a defendant's confession was shown on television throughout the community from which the jurors were selected, the Supreme Court reversed the death penalty. The Court stated that the denial of change of venue was also a denial of due process because "this spectacle [the televised confession] to the tens of thousands of people who saw and heard it ... was Rideau's trial ... [so that] [a]ny subsequent court proceeding in a community so pervasively exposed ... could be but a hollow formality". 373 U.S. at 726, 83 S.Ct. at 1419 (emphasis in original).

The murder of Carol Galloway, coming soon after the murder of other women from the community, generated great interest in the Columbus, Georgia community. After Brooks's arrest, the Sunday Ledger-Enquirer, a local newspaper, carried a four-column headline proclaiming "Detective Testifies Brooks Admitted Killing Woman." 2 Other

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headlines carried by the Columbus Ledger-Enquirer, from the time of the murder until the time of trial...

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