804 F.2d 1182 (11th Cir. 1986), 84-5102, Hargrave v. Wainwright

Docket Nº:84-5102.
Citation:804 F.2d 1182
Party Name:Lenson A. HARGRAVE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
Case Date:November 03, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1182

804 F.2d 1182 (11th Cir. 1986)

Lenson A. HARGRAVE, Petitioner-Appellant,

v.

Louie L. WAINWRIGHT, Secretary, Department of Corrections,

State of Florida, Respondent-Appellee.

No. 84-5102.

United States Court of Appeals, Eleventh Circuit

November 3, 1986

Rehearing En Banc Granted Jan. 26, 1987.[*]

See also 388 So.2d 1021.

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Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellant.

Jim Smith, Atty. Gen. of Fla., Carolyn Snurkowski, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

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

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS [*], Senior District Judge.

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TJOFLAT, Circuit Judge:

Petitioner, Lenson A. Hargrave, who was found guilty of first degree murder by a Florida jury and sentenced to death, presents three issues in this appeal from a federal district court's denial of his petition for writ of habeas corpus: (1) whether petitioner's eighth amendment right against cruel and unusual punishment was violated (a) because the jury was not instructed that it could consider nonstatutory mitigating factors when rendering an advisory sentence, (b) because petitioner's counsel believed that he was limited to the presentation of statutory mitigating evidence at the sentencing hearing, and (c) because the sentencing judge and the Supreme Court of Florida did not fully consider nonstatutory mitigating circumstances; (2) whether the State's introduction at the trial's sentencing phase of the testimony of a psychologist appointed by the court at petitioner's request violated petitioner's fifth amendment right against compelled self-incrimination and sixth amendment right to counsel, even though petitioner did not contemporaneously object; and (3) whether Fla.Stat. 921.141(5)(h) (1975), which defines a killing that is "especially heinous, atrocious, or cruel," as an aggravating circumstance, was applied in an unconstitutionally vague manner in violation of the eighth amendment. We conclude that the district court properly disposed of each of these issues and thus affirm.

I.

A.

Sometime in mid-May 1974, petitioner and his friend, Lawrence Karge, planned the robbery of a U-Tote-M convenience store in Miami, Florida. 1 Karge was a former employee of the store and was familiar with the store's alarm system. In the early evening of May 17, petitioner entered the store alone. He approached the clerk, Joseph Jones, who was the only other person in the store. Petitioner pulled out a gun and told Jones it was a holdup. Jones raised his hands, and petitioner told him to hand over the money in the cash register. Jones tried to comply but could not, because the cash register was jammed. Petitioner stepped backward and told Jones, "Open it up." Jones replied "I can't. It's jammed. I can't." Then petitioner fired two shots at Jones; one missed, but the other hit Jones in the chest. Jones gasped and fell backwards to the floor. Petitioner walked behind the counter and tried, unsuccessfully, to open the register. As petitioner was walking back toward the front of the counter, a man entered the store and asked petitioner if the store carried pickled pigs' feet. Petitioner replied, "No, we don't. We're out of them right now." After the man walked out of the store, got into his car, and drove off, petitioner walked around to the front of the counter and shot Jones in the head.

Petitioner then left the store and walked to the parking lot of a nearby bar to wait for Karge, who arrived about two minutes later and drove petitioner home. After eating dinner and changing his clothes, petitioner left for his job as a night security guard for a shopping center.

About seven months later, petitioner was arrested for the murder of Joseph Jones. At the stationhouse following his arrest, petitioner waived his Miranda rights and signed a statement, confessing to the killing and identifying the location of the murder weapon.

B.

Before trial, defense counsel informed the court that he doubted petitioner's competency to stand trial and his sanity at the time of the offense and moved the court for the appointment of one or more experts to examine petitioner. 2 The court appointed three experts, two psychiatrists and a psychologist, all of whom determined that petitioner was competent to stand trial and

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had been sane at the time of the Jones murder. 3

Petitioner's trial began on July 10, 1975. 4 The guilt/innocence phase of the trial took five days and resulted in a jury verdict of first degree murder. 5 The sentencing phase of the trial began shortly after the jury returned its verdict and was completed the same day. The State called three witnesses: the court-appointed psychologist and two lay witnesses. The psychologist described petitioner as a sociopath who had "a great deal of difficulty conforming to and adjusting to the mores or demands of society." He said that petitioner was insecure, apprehensive, and hostile. The psychologist also said that petitioner, who was nineteen at the time of the examination, had "a mental age of sixteen to seventeen" and had a history of using drugs, mostly marijuana. The two lay witnesses testified that, prior to petitioner's arrest, he said that he had killed someone before and it would not bother him to kill again. The defense called one of the court-appointed psychiatrists and petitioner's mother. The psychiatrist testified that petitioner had an "anti-social personality," acted impulsively, and could easily be used by other persons. Petitioner's mother stated that petitioner had been under Karge's influence for a long time. The jury recommended the imposition of the death penalty.

On July 18, 1975, the trial court convened a hearing to sentence petitioner. The court heard testimony from petitioner's mother and grandmother (who corroborated the mother's trial testimony), petitioner's allocution, and argument from counsel for the State and petitioner. The court found that

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four aggravating circumstances attended the Jones murder: (1) the murder was committed while the petitioner was attempting to commit a robbery; (2) the murder was committed "for the purpose of avoiding or preventing a lawful arrest"; (3) the murder was committed for pecuniary gain; and (4) the murder was "especially heinous, atrocious or cruel, in that, after initially shooting the victim and while the victim lay helplessly bleeding on the floor, the [petitioner] deliberately leaned over the counter and shot the victim in the head." The court found two mitigating circumstances: (1) petitioner had "no significant history of criminal activity"; and (2) petitioner's age--eighteen years. The court balanced the factors and agreed with the jury that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the court imposed the death penalty.

Petitioner unsuccessfully appealed his conviction to the Supreme Court of Florida. 6 Hargrave v. State, 366 So.2d 1 (Fla.1978) (per curiam), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). He then filed a motion in the trial court to vacate the judgment and sentence under Fla.R.Crim.P. 3.850 (1977). 7 This motion was denied, and the Supreme Court of Florida affirmed the denial. Hargrave v. State, 396 So.2d 1127 (Fla.1981) (per curiam). Petitioner filed a second post-conviction motion in the trial court, 8 which also was denied. The Supreme Court of Florida affirmed the denial. Hargrave v. State, 427 So.2d 713 (Fla.1983). Having exhausted his state remedies, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. The district court, following a nonevidentiary hearing, denied his petition. He then took this appeal.

II.

Petitioner claims that he was denied his eighth amendment right against cruel and unusual punishment because certain mitigating evidence was not considered by the

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jury, the trial court, or the Supreme Court of Florida. There are several components to petitioner's claim. First, petitioner argues that although his counsel did not offer any nonstatutory mitigating evidence, to the extent that such evidence was elicited at trial--for example, petitioner's steady employment, below average intelligence, and history of drug use--the court prevented the jury from considering that evidence because of its limiting instructions. 9 Second, he contends that his trial counsel believed that the presentation of mitigating evidence at the sentencing phase of the trial was limited to evidence of statutory mitigating circumstances. Finally, petitioner contends that the trial court, when sentencing petitioner, considered only statutory mitigating circumstances and that both the trial court and the state supreme court did not accord any mitigatory weight to evidence of petitioner's below-average intelligence, simply because they found that the statutory requirement of "substantial [mental] impairment" was not met. Each component of petitioner's claim is rooted in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality), which held that the eighth and fourteenth amendments require that a sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Footnote omitted).

Before we can address a habeas petitioner's federal constitutional claim, we must first determine if that claim is properly before us. We begin by examining the procedural history of petitioner's jury instruction argument.

A.

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