High v. Kemp

• Decision Date: 04 June 1987
• Docket Number: No. 85-8989,85-8989
• Citation: 819 F.2d 988
• Parties: Jose Martinez HIGH, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 988

819 F.2d 988

Jose Martinez HIGH, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellant, Cross-Appellee.

No. 85-8989.

United States Court of Appeals, Eleventh Circuit.

June 4, 1987.

Mary Beth Westmoreland, William B. Hill, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Bradley S. Stetler, Office of Public Defender, Burlington, Vt., Michael C. Garrett, Augusta, Ga., for petitioner-appellee, cross-appellant.

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

Before GODBOLD, HILL and ANDERSON, Circuit Judges.

HILL, Circuit Judge:

Defendant Jose Martinez High brought this federal habeas corpus petition challenging his incarceration by the state of Georgia. High was convicted in 1978 of murder, kidnapping (2 counts), armed robbery, possession of a firearm during the commission of a crime, and aggravated assault; he received a sentence of death for armed robbery, murder, and two counts of kidnapping. On direct appeal, the Georgia Supreme Court vacated the death penalty for armed robbery and kidnapping; the conviction for aggravated assault was also reversed. High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981), cert. denied, 455 U.S. 927, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982). The Georgia Supreme Court rejected High's further challenges to his conviction and sentence of death raised in a state habeas corpus attack. High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984). High sought federal habeas corpus relief in the United States District Court for the Southern District of Georgia. The district judge concluded that High's death sentence should be set aside due to the jury instructions given at the sentencing phase, 623 F.Supp. 316. Therefore, the writ was conditionally granted subject to the state's right to retry defendant on the question of sentence. The writ was denied in all other respects.

Relying upon our decision in Spivey v. Zant, 661 F.2d 464 (5th Cir.Unit B 1981), the district court concluded that the jury had not been adequately instructed concerning the nature and function of mitigating circumstances at the sentencing phase of High's trial. For the reasons set out below, we conclude the district court was in error on this issue. High asserts five other constitutional claims: (1) that the prosecutor used preemptory strikes in violation of the fourteenth amendment; (2) that the execution of a defendant under age eighteen at the time of the offense constitutes cruel and unusual punishment; (3) that High was denied effective assistance of counsel; (4) that the jury instructions improperly shifted the burden of proof as to intent; and (5) that various comments made by the prosecutor denied High a fundamentally fair trial.

Jose High and his accomplices, Nathan Brown and Judson Ruffin, robbed a service station in a rural Georgia community on July 26, 1976. The station operator (Henry Lee Phillips) and his eleven-year-old stepson (Bonnie Bullock) were abducted during the course of the robbery. Phillips was placed in the trunk of Ruffin's car; Bonnie Bullock was placed in the back seat. High and his accomplices drove the two to a remote site where they were to be eliminated. The eleven-year old was taunted by High as they rode in the back seat of the car: "Are you ready to die? Do you want to die? Well, you're going to die." The child begged for his life. Upon reaching a deserted wooded area, the victims were forced to lie face down in front of the car. The victims were then shot by the three defendants. Bonnie Bullock died of a bullet wound to the head. Phillips suffered a gun shot wound to the head and wrist. Having been left for dead, Phillips miraculously survived and later identified High, Ruffin, and Brown. High later confessed to the murder.

I. ADEQUACY OF THE JURY INSTRUCTIONS CONCERNING THE NATURE AND FUNCTION OF MITIGATING CIRCUMSTANCES

High contends that the jury instructions given at the sentencing phase of his trial failed to apprise the jury of the nature and function of mitigating circumstances. In Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981), this court held that failure to mention and define mitigating circumstances in a capital case violates constitutional requirements. The court noted that the jury must be explicitly instructed concerning mitigating circumstances. The court established the following standard in evaluating jury instructions:

So long as the instruction clearly communicates that the law recognizes the existence of circumstances which do not justify or excuse the offense, but which, in fairness or mercy, may be considered as extenuating or reducing the degree of moral culpability and punishment ..., this portion of the constitutional requirement is satisfied.

Id. at 471 n. 8. The Spivey court, however, recognized that in certain circumstances the jury's discretion could be guided "without explicitly defining the nature and function of mitigating circumstances." Id. at 471. In Dix v. Kemp, 763 F.2d 1207, 1209 (11th Cir.1985), a panel of this court expanded the holding of Spivey; the court stated: "The words 'mitigating circumstances,' while they have meaning to most jurors, still do not adequately communicate the precise nature or function of that concept in the context of a sentencing trial." A similar result had been reached by the court in Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). High rests his argument upon this line of cases. The Westbrook decision and it progeny was significantly restricted by this court's en banc consideration of this issue in Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986). In this decision, the court reaffirmed the rationale of Spivey v. Zant but held that a jury instruction indistinguishable from the instructions challenged in Westbrook did sufficiently instruct the jury as to the nature and function of mitigating circumstances. The Peek decision requires that jury instructions be viewed in the context of the entire sentencing proceeding. The standard of review is whether any "reasonable juror could have failed to understand the challenged instructions and the role of mitigation." Peek, 784 F.2d at 1486; see also Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1975 n. 8, 85 L.Ed.2d 344 (1985) (indicating that appropriate standard is whether "there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law").

The district court's decision to grant High's writ of habeas corpus is understandable in light of the fact that the Peek decision was not rendered until four months after the district court's ruling. An evaluation of the instruction given at High's trial, however, reveals that the instructions sufficiently informed the jury as to the nature and function of mitigating circumstances. At the commencement of the sentencing phase, the trial judge informed the jury that "both the state and the defendant have the right to offer or proffer any evidence that they see fit." Transcript at 907. The effect of this instruction is to inform the jury that it may consider all evidence presented without restriction. At the very outset of the sentencing charge, the jury was instructed: "you are authorized to consider all of the evidence received by you in open court in the first phase of the trial, including all mitigating facts and circumstances, if any, on behalf of the defendant." Transcript at 925-26. Not only was the jury instructed that it was to consider mitigating facts, but this sentence clearly links mitigating facts with the defendant. Giving this charge a common sense evaluation, it is clear that the jury was aware that "mitigating facts" are those facts which are "good" and tend to help the defendant. More precisely, when dressed in the terminology of attorneys, the jury was aware that it could consider facts which extenuate the degree of moral culpability. Again, the jury was instructed to consider mitigating circumstances: "you are authorized to consider all of the facts and circumstances of the case including mitigating facts and circumstances, if any, on behalf of the defendant." Trial Transcript at 927. Again, mitigating circumstances were linked with facts which would benefit the defendant as the jury considered the appropriateness of the death penalty for this particular defendant. Additionally, the court charged the jury that aggravating circumstances were to be proved beyond any reasonable doubt and set forth the two statutory aggravating factors which had been argued by the prosecutor. Finally, it is beyond question that the jury was instructed that it could impose mercy without regard to the mitigating or aggravating circumstances found: "I charge you, members of the jury, that if you find that the state has proved one or more statutory aggravating circumstances beyond a reasonable doubt that you may recommend that the defendant receive a life sentence." Transcript at 931.

The only distinguishing factor between the instructions given here and the instructions held to be adequate in the Peek decision is that the trial judge in Peek gave concrete examples of a mitigating and aggravating factor. Had this been done at High's trial, such an instruction would have emphasized the fact that there were no mitigating circumstances to be found. High presented no evidence at either the guilt or sentencing phase of his trial. High's closing argument at the sentencing phase makes a general plea for mercy; emphasis is placed upon biblical quotations and the fact that High's execution will not bring back the victim. High, however, failed to come forward with any form of mitigating evidence. In this context, the jury instruction was sufficient to inform the jury adequately as to the nature and function of mitigating...