Johnson v. Wainwright

• Decision Date: 08 December 1986
• Docket Number: No. 85-3962,85-3962
• Citation: 806 F.2d 1479
• Parties: 22 Fed. R. Evid. Serv. 252 Marvin Edward JOHNSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1479

806 F.2d 1479

22 Fed. R. Evid. Serv. 252

Marvin Edward JOHNSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent- Appellee.

No. 85-3962.

United States Court of Appeals Eleventh Circuit.

Dec. 8, 1986.

Rehearing and Rehearing En Banc Denied Jan. 7, 1987.

Louis G. Carres, West Palm Beach, Fla., Joseph L. Hammons, Pensacola, Fla., for petitioner-appellant.

Wallace Allbritton, Dept. of Legal Affairs, Tallahassee, FL 32301; Mark C. Menser, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

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

Before GODBOLD, HILL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

In this capital case petitioner Marvin Edward Johnson appeals from the district court's denial of his petition for a writ of habeas corpus. Finding no constitutional error, we affirm.

I. BACKGROUND

On June 7, 1978, a murder occurred during an armed robbery of a pharmacy in Pensacola, Florida. The Supreme Court of Florida stated the facts of the murder as follows:

Gary Summitt, an employee of Warrington Pharmacy and an eyewitness to the robbery and the murder, testified that while working at the pharmacy on the evening of June 7, 1978, he went to the back of the store to ask the pharamacist, Woodrow Moulton, a question. There he saw the defendant Johnson holding a gun on Moulton who was at the pharmacy safe putting articles in a bag and he heard Johnson order Moulton to put certain drugs and money from the safe into the bag. After obtaining the drugs and money, Johnson started towards the front of the store. Moulton then grabbed a gun from behind the prescription counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was empty. No longer able to defend himself, Moulton stood up with his hands in the air. Johnson then walked up to within a foot and a half of the defenseless pharmacist, said "You think you're a smart son-of-a-bitch don't you?," and shot him in the chest.

Johnson v. State, 393 So.2d 1069, 1071 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Though others were present in the pharmacy, Summitt was the only eyewitness to the robbery and murder.

At trial, Johnson was convicted by a jury of first-degree murder and armed robbery. During the penalty phase, the jury returned an advisory sentence of life imprisonment on the first-degree murder conviction. On January 12, 1979, the trial judge overrode the jury's recommendation and sentenced Johnson to death.

On direct appeal, the Florida Supreme Court affirmed Johnson's conviction. Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). ¹ During its review of the state trial court determination the Supreme Court concluded that two of the five aggravating factors which the trial court had found to be present were not, in fact, present. It reaffirmed, however, the trial court's finding that there were no mitigating circumstances present and, by a four to three vote, affirmed the trial court's imposition of the death sentence.

During the pendency of his direct appeal, Johnson joined with 122 other death row inmates in filing an application for extraordinary relief and a petition for a writ of habeas corpus in state court based upon the allegation that the Florida Supreme Court had a practice of reviewing ex parte, non-record information concerning capital defendants. The Supreme Court of Florida denied relief. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). ²

Johnson's subsequent petition in the United States District Court for the Northern District of Florida for a writ of habeas corpus was denied. ³ Thereafter, petitioner's motion to alter or amend the judgment of the district court was also denied. ⁴ This appeal ensued.

On appeal, Johnson raises seven issues: ⁵ (1) whether the trial court's refusal to consider lingering doubt about the certainty of proof violated the Eighth and Fourteenth Amendments; (2) whether the trial court improperly refused to consider or weigh nonstatutory mitigating circumstances; (3) whether the trial court's exclusion of expert testimony on factors affecting the reliability of eyewitness identification was unconstitutional; (4) whether prosecutorial misconduct while cross-examining petitioner rendered the trial fundamentally unfair; (5) whether the district court improperly denied discovery regarding petitioner's claim of a due process violation by the Florida Supreme Court; (6) whether the imposition of a death sentence by a trial court following a jury verdict for life is unconstitutional; and (7) whether an error of fact in the Florida Supreme Court decision, relating to Johnson's use of the term son-of-a-bitch, improperly affected the determination of aggravating circumstances in this case.

II. LINGERING DOUBT

Petitioner argues that lingering doubt about the certainty of proof of guilt is a mitigating factor which, constitutionally, must be considered by the sentencing authority in making its determination whether or not to impose a death sentence. Petitioner contends that the trial court, acting as sentencer, refused to consider this valid mitigating factor when it imposed a death sentence upon him. To support this contention, petitioner points to two factors. First, he argues that the trial court refused to permit him to argue to the jury that it should not impose the death sentence unless it was absolutely certain that petitioner had committed the crime. ⁶ Johnson contends that the preclusion of this argument to the jury might indicate that the trial court refused to consider lingering doubt as a factor when making its own determination. Second, petitioner contends that the Florida Supreme Court has precluded, as a matter of law, any consideration of the uncertainty surrounding the strength of the case for guilt in death sentence determinations. See Buford v. State, 403 So.2d 943, 953 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

For the purposes of this opinion, we may assume arguendo, although we need not decide, that lingering doubt is properly considered a nonstatutory mitigating factor which, under the doctrine of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the sentencing authority cannot be precluded from considering. See King v. Strickland, 748 F.2d 1462, 1464 (11th Cir.1984) (doubts may rise "to a sufficient level that, though not enough to defeat conviction, [they] might convince a jury and a court that the ultimate penalty should not be exacted, lest a mistake may have been made"), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985); Smith v. Wainwright, 741 F.2d 1248, 1255 (11th Cir.1984) (" 'The fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt--doubt based upon reason--and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt--this absence of absolute certainty--can be real.' ") (quoting Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir.Unit B 1981)) (emphasis in original), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985).

No evidence exists, however, that the trial court failed to consider any lingering doubt it might have had when it imposed the sentence of death. Contrary to petitioner's assertion, the trial court did allow his attorneys to argue to the jury that it should not advise the judge to adopt a death sentence unless it was absolutely certain that Johnson had committed the crime. See Record on Appeal, vol. 8 at 1556, 1562. Moreover, Buford, upon which petitioner relies for the proposition that Florida law absolutely precludes the consideration of lingering doubt in rendering a death sentence, was decided in July 1981, over two years after sentencing in Johnson's trial had occurred, and could not have influenced the sentencing judge. We conclude that there is no evidence that the trial court failed to take into account any lingering doubt it might have had when it sentenced petitioner to death. Thus, the district court did not abuse its discretion in declining to alter or amend its judgment. ⁷

III. FAILURE TO CONSIDER OR WEIGH MITIGATING FACTORS

Petitioner also contends that the sentencing court refused to either consider or weigh nonstatutory mitigating circumstances. The allegedly ignored mitigating factors include evidence that the petitioner did not harm two other people in the pharmacy who witnessed the robbery, that petitioner came from a family which suffered extreme hardship, that the victim initiated the actual use of deadly force, and that an injury Johnson may have suffered when the victim shot at him could have impaired his rationality at the time of the homicide. To support his contention that the judge failed to consider these factors in rendering his sentence, Johnson relies principally upon two separate statements made by the trial judge.

At one point the judge said:

JUDGE: (Interposing) To limit the aggravating--to broaden the aggravating or, in this case, the mitigating circumstances would keep--would tend to make arbitrary or unlimited the decision of the Court and too much discretion there, that's one thing that they struck down the earlier statute on it because it was capricious and arbitrary and not limited at all. It is limited now.

Record on Appeal, vol. 9 at 1593. At another time the following colloquy occurred:

JUDGE: Certainly. I want to announce that I find that after weighing the aggravating and mitigating circumstances in this case, sufficient aggravating circumstances exist, as enumerated in subsection 5 of the statute and...