928 F.2d 1006 (11th Cir. 1991), 90-8165, Cunningham v. Zant

Docket Nº:90-8165.
Citation:928 F.2d 1006
Party Name:James CUNNINGHAM, Jr., Plaintiff-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
Case Date:March 27, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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928 F.2d 1006 (11th Cir. 1991)

James CUNNINGHAM, Jr., Plaintiff-Appellee, Cross-Appellant,


Walter ZANT, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellant, Cross-Appellee.

No. 90-8165.

United States Court of Appeals, Eleventh Circuit

March 27, 1991

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Dennis R. Dunn, Asst. Atty. Gen., Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellant, cross-appellee.

August F. Siemon, Frank L. Derrickson, Atlanta, Ga., for plaintiff-appellee, cross-appellant.

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

Before TJOFLAT, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

The respondent Walter Zant appeals the district court's order granting habeas relief and vacating the petitioner's death sentence on the grounds that the trial court's jury charge during the sentencing phase was constitutionally inadequate. Petitioner James Cunningham, Jr., cross-appeals the denial of his claims that his grand and petit juries were unconstitutionally composed, that the trial court's charge during the guilt phase unconstitutionally shifted the burden of proof to the defendant, and that the performance of his counsel during the sentencing phase of the trial violated his right to effective assistance of counsel.


A. Background Facts

William B. Crawford lived in the back of his store in Lincolnton, Georgia. Cunningham often bought produce from Crawford. On the evening of January 1, 1979, Crawford's neighbor, Mary Alice Tutt, went to Crawford's store and found Crawford lying on the floor, apparently dead, and called the police. An autopsy conducted the next day revealed that Crawford had been severely beaten around the head and killed with a blunt instrument. The director of the state crime laboratory, Dr. Larry

Howard, testified at trial that there had been at least eighteen blows to Crawford's head and arms and that the cause of death was multiple blows to the skull. There had been at least eight blows directly to the head, any one of which could have been fatal. Dr. Howard opined that Crawford's arms had been injured while trying to protect his head from being beaten.

At approximately 1:30 a.m., on the morning after Crawford's death, Cunningham paid Alex Williams to give Cunningham and his family a ride to the Augusta Trailways bus station. At the station, Cunningham purchased tickets to Newark, New Jersey, for himself and his family and boarded a bus.

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When Williams learned of the victim's death the next day, he became suspicious and contacted the Sheriff's office. Williams explained to the Sheriff that he had given Cunningham a ride to the Augusta Trailways station the night before. The Georgia Bureau of Investigation ("G.B.I.") then contacted the police in Durham, North Carolina, who detained Cunningham when the bus stopped there. After being advised of his Miranda rights, Cunningham signed a waiver of those rights and consented to talk with the police. He initially stated that he had seen two white males near Crawford's house, but gave no indication that he had been involved in the killing. Detective Franklin then placed Cunningham in a cell, provided him with a meal, and allowed him to take a nap.

Approximately four hours later, the Durham police again sought to interview Cunningham. They again advised Cunningham of his Miranda rights, and Cunningham again signed a written waiver of those rights. During the course of this interview, Cunningham provided a statement, written by Detective Franklin, in which he admitted that he had gone to Crawford's store to purchase cigarettes and that he hit Crawford at least nine times with a wrench he had brought along after Crawford refused to let him buy the cigarettes on credit. Cunningham stated that he had not wanted to kill Crawford. Rather, he had only wanted to knock Crawford out. He further claimed that he had wanted the money only to make a payment on his mortgaged trailer which he was afraid that he was going to lose.

After being advised that Cunningham had been arrested, two G.B.I. agents traveled to Durham, North Carolina. After advising Cunningham of his Miranda rights, these agents took an additional statement from Cunningham, which was tape-recorded, in which Cunningham reiterated his prior admission. After being extradited to Georgia, Cunningham made an additional statement in which he revealed where he had hidden the murder weapon, his clothing and Crawford's wallet. On January 12, 1979, Cunningham made another statement which reiterated the same facts of the crime, but added that his wife had planned the robbery. After conducting a Jackson v. Denno hearing, 1 the trial court found that Cunningham had given all of these statements freely and voluntarily and admitted the statements into evidence.

B. Procedural History

On January 22, 1979, Cunningham was indicted for burglary, armed robbery, and malice murder. After a trial on October 23-24, 1979, the jury found Cunningham guilty of armed robbery and malice murder. The charge of burglary was nol prossed. After the sentencing phase of the trial, the jury found the existence of the second and the seventh aggravating circumstances as to both offenses pursuant to Ga.Code Ann. Sec. 17-10-30(b)(2) & (b)(7) and recommended that Cunningham be sentenced to death on both convictions.

Cunningham appealed his convictions and sentences to the Supreme Court of Georgia which affirmed the convictions and the death sentence for malice murder, but vacated the death sentence for armed robbery. Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981). Cunningham's motion to the Georgia Supreme Court for rehearing was denied as was his application for a writ of certiorari from the United States Supreme Court. Cunningham v. Georgia, 455 U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982). On June 30, 1982, he filed an application for state habeas relief which, after an evidentiary hearing and oral argument, was denied. Cunningham v. Kemp, No. 5598 slip op. at 60 (Ga.Superior Ct.1988). The Supreme Courts of Georgia and the United States denied Cunningham's application for review of this decision.

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On July 5, 1989, Cunningham filed an application for a writ of habeas corpus in the district court. Cunningham argued that the trial court's jury instructions at both the guilt-innocence phase and the sentencing phase contained reversible errors. He further argued that he received ineffective assistance of counsel during the sentencing phase of his trial and that the grand and petit juries which indicted and convicted him were unconstitutionally composed. The district court held that the trial court had committed error in its sentencing phase instructions, but found Cunningham's other claims to be meritless. The court therefore vacated Cunningham's death sentence and ordered that he be resentenced within 180 days of the date of its order. This appeal and cross-appeal followed.


When reviewing a district court's grant of habeas corpus relief, this Court will not disturb the court's factual findings unless clearly erroneous. Baty v. Balkcom, 661 F.2d 391, 394 n. 7 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). 2 Review of questions of law and of mixed questions of law and fact is plenary. Id. State factual findings, including implied findings of fact, are entitled to a presumption of correctness under 28 U.S.C.A. Sec. 2254(d) (West 1977). Marshall v. Loneberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983).

A. Sentencing Phase Jury Instructions on Mitigation

The trial court orally charged the jury that it was "authorized to consider all of the evidence received by you in open court in both phases of the trial, including all mitigating and/or extenuating facts and circumstances, if any on behalf of the defendant." It did not define mitigating or extenuating. The trial court later repeated the instruction "to consider all of the evidence," but did not mention mitigating or extenuating facts. The trial court then proceeded to instruct the jury as to aggravating circumstances, but gave the jury no oral charge instructing that it could recommend a life sentence even if the state proved the existence of one or more aggravating circumstances beyond a reasonable doubt.

The district court found that the trial court's oral charge on mitigating circumstances was constitutionally deficient because it did not adequately explain the meaning and function of mitigating circumstances and it did not instruct the jury that it could still recommend a life sentence even if the state proved beyond a reasonable doubt the existence of one or more aggravating circumstances. The court acknowledged that the written charge that was submitted properly contained these instructions. It concluded, however, that the jury had no reason to look at the written charge because the oral charge suggested that the written charge would be identical to the oral charge.

The state argues that the trial court's oral charge is virtually identical to the charge this Court held constitutional in High v. Kemp, 819 F.2d 988 (11th Cir.1987), cert. denied, 492 U.S. 926, 109 S.Ct. 3264, 109 L.Ed.2d 609 (1989). Moreover, the state contends that once the written instructions are considered there is no reasonable possibility that a juror could have misunderstood the meaning and function of mitigating circumstances. 3

A jury charge on mitigating circumstances is constitutionally valid if there is "no reasonable possibility that a juror will misunderstand the meaning and function of

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mitigating circumstances." Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986)....

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