Adams v. Wainwright, 86-3207

• Decision Date: 13 November 1986
• Docket Number: No. 86-3207,86-3207
• Citation: 804 F.2d 1526
• Parties: Aubrey Dennis ADAMS, Jr., Petitioner-Appellant, v. Louie WAINWRIGHT, Jim Smith, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1526

804 F.2d 1526

Aubrey Dennis ADAMS, Jr., Petitioner-Appellant, v. Louie WAINWRIGHT, Jim Smith, Respondents-Appellees.

No. 86-3207.

United States Court of Appeals, Eleventh Circuit.

Nov. 13, 1986.

Mark E. Olive, David A. Reiser, Tallahassee, Fla., Ronald J. Tabak, Skadden, Arps, Slate, Meagher & Flom, New York City, Kenneth M. Hart, Tallahassee, Fla., for petitioner-appellant.

Margene Roper, Asst. Atty. Gen., Dept. of Legal Affairs, Richard B. Martell, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

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

Before RONEY, Chief Judge, FAY and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Petitioner, Aubrey Dennis Adams, was convicted in October 1978 of the first degree murder of eight-year-old Trisa Gail Thornley and was sentenced to death in January 1979. His conviction and sentence were affirmed by the Florida Supreme Court, Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982), and his motions for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, Adams v. State, 456 So.2d 888 (Fla.1984); Adams v. State, 484 So.2d 1216 (Fla.1986), and petition for writ of habeas corpus in the Supreme Court of Florida, 484 So.2d 1211 (Fla.1986), cert. denied, --- U.S. ----, 106 S.Ct. 1506, 89 L.Ed.2d 906 (1986), were denied.

Adams' first petition for a writ of habeas corpus in the district court was denied without evidentiary hearing and this Court affirmed. Adams v. Wainwright, 764 F.2d 1356, reh'g denied, 770 F.2d 1084 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). This appeal is taken from the district court's denial of Adams' second habeas petition on March 7, 1986. ¹

The district court found that all of the claims raised in Adams' second petition were barred, either because of procedural default in the state courts or because raising them in this second habeas petition constituted an abuse of the writ. We affirm in part and reverse in part, with instructions that the district court issue the writ of habeas corpus unless the State of Florida conducts a new sentencing proceeding before an untainted jury.

I. DISCUSSION

In this appeal Adams raises five claims: (1) violation of Caldwell v. Mississippi through statements by the trial judge that misled the jury as to their role in the sentencing process; (2) incompetency to stand trial; (3) ineffective assistance of counsel through failure to provide Adams with a competent psychiatric expert; (4) ineffective assistance of counsel through failure to challenge the voluntariness of Adams' confession; and (5) ineffective assistance of counsel through failure to consult an expert pathologist to rebut certain testimony of the State's expert witnesses.

A. Caldwell Claim

At the beginning of jury selection for Adams' trial, the judge instructed the initial panel of prospective jurors as follows regarding the nature and effect of the jury's recommended sentence in a capital murder trial:

The Court is not bound by your recommendation. The ultimate responsibility for what this man gets is not on your shoulders. It's on my shoulders. You are merely an advisory group to me in Phase Two. You can come back and say, Judge, we think you ought to give the man life. I can say, I disregard the recommendation of the Jury and I give him death. You can come back and say, Judge, we think he ought to be put to death. I can say, I disregard your recommendation and give him life. So that this conscience part of it as to whether or not you're going to put the man to death or not, that is not your decision to make. That's only my decision to make and it has to be on my conscience. It cannot be on yours.

The judge gave a substantially similar explanation of the jury's role in the sentencing process each time new prospective jurors were seated in the jury box. ² He also interrupted counsel's voir dire of prospective jurors on two occasions to reiterate that the court, and not the jury, was responsible for sentencing. Four members of Adams' jury heard these remarks eleven times, three heard the remarks nine times, one heard them six times, one heard them five times, and the remaining three jurors heard them four times.

Adams argues these statements by the judge violated the Eighth Amendment as interpreted in Caldwell v. Mississippi, which held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. 320, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). The district court did not reach the merits of this claim, finding that the failure to raise the claim in Adams' first habeas petition constituted an abuse of the writ, and that the claim also had been procedurally defaulted in the state courts. The district court's findings were based on its determination that Adams' claim "does not derive any merit from the Caldwell decision" because the trial judge, and not the jury, is the sole sentencer in Florida. The district court rejected Adams' argument that the jury plays a critical role in the sentencing process in Florida because the court thought it significant that, while a trial judge in Florida is limited in his ability to override a jury verdict recommending life imprisonment, "[n]othing in Florida law suggests that a similar presumption of correctness is due a jury recommendation of a death sentence." Because we find that Caldwell is applicable to statements that diminish the sense of responsibility of the advisory jury for its recommended sentence under the Florida system, we find that the district court erred in dismissing this claim on the grounds of abuse of the writ and state procedural default. Further, we find that the judge's statements in this case created an intolerable danger that the jury's sense of responsibility for its advisory sentence was diminished, thereby rendering Adams' death sentence unreliable in violation of the Eighth Amendment.

1. Applicability of Caldwell to Florida's Sentencing Scheme

The district court's determination that Caldwell was inapplicable to Adams' case was based on an inaccurate assessment of the role of the jury in the Florida system and a misunderstanding of the significance of the jury override. Under Florida's trifurcated procedure in capital felony cases, after a jury determination of guilt, a separate sentencing proceeding is held before the jury, after which the jury renders an advisory sentence based on its weighing of aggravating and mitigating circumstances. Fla.Stat.Ann. Sec. 921.141(1)(2) (1985). Although the trial judge must then independently weigh the aggravating and mitigating circumstances and render sentence, the jury's recommendation, which represents the judgment of the community as to whether the death sentence is appropriate in a given case, is entitled to great weight, McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (per curiam), and may be rejected by the trial judge only if the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam). This limitation on the judge's exercise of the jury override provides a "crucial protection" for the defendant. Dobbert v. Florida, 432 U.S. 282, 295, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977).

In light of the limited nature of the jury override, it is clear that the district court's reliance on the judge's status as the "sole sentencer" was misplaced. While the judge is in fact the only entity that imposes sentence under the Florida scheme, his role is to serve as "a buffer where the jury allows emotion to override the duty of a deliberate determination" of the appropriate sentence. Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). Because of the deference given the jury's recommended sentence, that recommendation establishes the "parameters" for all subsequent consideration of the appropriate sentence, including that of the trial judge, and makes "[t]he jury's role in an advisory sentencing proceeding ... critical." Adams, 764 F.2d at 1364.

Further, the district court's reasoning that the jury did not play a critical role in Adams' sentencing because no presumption of correctness attaches under Florida law to a jury recommendation of death misses the importance of both the jury override and Caldwell. The important consideration is not whether the Tedder presumption of correctness attaches to a sentence recommending death, but whether the judge's statements made it less likely that the jury would recommend life. As this Court recognized in Adams I, "[e]very error in instruction which makes it less likely that the jury will recommend a life sentence to some degree deprives the defendant of the protections afforded by the presumption of correctness that attaches to a jury's verdict recommending life imprisonment." 764 F.2d at 1364. When the error involves statements that diminish the jury's sense of responsibility for its sentence, Caldwell makes it clear that an impermissible likelihood the jury will be biased in favor of rendering a sentence of death is created. 105 S.Ct. at 2640. ³

Clearly, then, the jury's role in the Florida sentencing process is so crucial that dilution of its sense of responsibility for its recommended sentence constitutes a violation of Caldwell. In fact, the Florida Supreme Court recently has recognized that the concerns expressed in Caldwell apply to the Florida sentencing scheme, stating that "[i]t is appropriate to stress to the jury the seriousness which it should attach to its recommendation" and that "[t]o do otherwise would be contrary to Caldwell v. Mississippi and Tedder v. State." Garcia v. State, 492 So.2d 360, 367 (Fla.198...