Bowden v. Francis, 83-8426
| Decision Date | 14 May 1984 |
| Docket Number | No. 83-8426,83-8426 |
| Citation | 733 F.2d 740 |
| Parties | 15 Fed. R. Evid. Serv. 1368 Jerome BOWDEN, Petitioner-Appellant, v. Robert FRANCIS, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Nelson Jarnagin, August Siemon, Atlanta, Ga., for petitioner-appellant.
Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT and FAY, Circuit Judges, and WISDOM *, Senior Circuit Judge.
Jerome Bowden, a Georgia death row inmate, appeals the district court's denial of his petition for habeas corpus relief. Bowden's principal constitutional claims concern his alleged mental incompetency and the failure of the trial court and his attorney to take appropriate steps to discover this fact. He contends that the trial court should have had him examined by a psychiatrist and determined his competency to stand trial before proceeding to trial and that his attorney should have introduced certain evidence regarding his mental state as a mitigating circumstance at the sentencing phase of his trial. Bowden's other claims concern the prosecutor's conduct during the trial. We do not find the constitutional error Bowden asserts. Accordingly, we affirm.
At 8:30 a.m. on October 11, 1976, Jerome Bowden, twenty-four, and James Lee Graves, sixteen, broke into the Columbus, Georgia home of Mrs. Kathryn Stryker, fifty-five. Mrs. Stryker, Graves' next door neighbor, lived with her paralyzed, bedridden, seventy-six-year-old mother, Mrs. Wessie Bell Jenkins. Bowden and Graves had been employed by Mrs. Stryker a week earlier, raking the fall leaves in her yard. It was then that they formulated a plan to burglarize her home. Bowden had twice previously been convicted of burglary.
Bowden and Graves entered the Stryker home armed with a pellet gun and disguised with wigs. When he discovered Mrs. Stryker, Bowden, using the pellet gun as a cudgel, attacked her. After bludgeoning her with sufficient force to crack open her skull, 1 he thrust a butcher knife into her chest up to the hilt.
Bowden and Graves then ransacked the house and stole a television set, jewelry, and coins. When Bowden discovered Mrs. Jenkins in her bed, he beat her about the head. They then returned to Graves' house and disposed of the loot, joking about their successful adventure. They considered going to a shopping center to snatch purses, but decided against that course.
Three and one-half days later, prompted by the concerns of neighbors and friends, the police forced entry into the Stryker home. They discovered the dead body of Mrs. Stryker on the floor and the mortally wounded body of Mrs. Jenkins. 2 Following an investigation, Graves confessed to his participation in these crimes and implicated Bowden. Bowden learned that the police were looking for him and surrendered to an officer on October 15, 1976. On October 17, after having been repeatedly given his Miranda warnings, he confessed. Bowden and Graves were indicted by a Muscogee County, Georgia grand jury and charged with burglary, armed robbery, aggravated assault of Mrs. Jenkins, and the murder of Mrs. Stryker. The case was severed for trial; Bowden was tried first.
Prior to trial, Bowden's counsel filed a special plea of insanity and moved the Muscogee County Superior Court for the appointment of a psychiatrist to evaluate Bowden. He sought to have a psychiatrist render opinions on whether Bowden was competent to stand trial and whether he was insane at the time he committed the crimes. At an evidentiary hearing on his motion, counsel presented evidence that, he contended, suggested that Bowden was incompetent to stand trial. Bowden's sister and niece, with whom Bowden had lived for several months, testified to certain aspects of Bowden's behavior they considered bizarre: he would sometimes sit on the bed and rock for hours at a time; on other occasions he would "cuss out" the children in the family. His sister also stated that Bowden's mother once attempted to have him examined by a psychiatrist, after Bowden had gotten into trouble with the law. Bowden's lead trial counsel testified that he had been having difficulty eliciting a coherent story from Bowden concerning his activities on the day of the crime; counsel admitted, however, that Bowden had been cooperating with him in all other respects in his preparation of the case for trial. The court denied the motion for a psychiatric evaluation, and counsel withdrew Bowden's special plea of insanity.
Bowden went to trial on December 7, 1976. On December 9, at the conclusion of the guilt phase of the trial, the jury found Bowden guilty as charged. The sentencing phase of the trial followed for the purpose of determining whether Bowden should receive the death penalty for the murder of Mrs. Stryker. The jury found that the murder had been committed under aggravating circumstances and recommended that Bowden be sentenced to death. 3 The court, being bound under Georgia law to follow the jury's recommendation, sentenced Bowden accordingly.
On direct appeal, the Georgia Supreme Court affirmed Bowden's convictions and his death sentence. Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977), cert. denied, 435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 533 (1978). Bowden then petitioned the Superior Court of Butts County, Georgia for a writ of habeas corpus. The court, following an evidentiary hearing, denied Bowden's petition on January 10, 1979. The Supreme Court of Georgia affirmed. Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788, reh'g denied, 445 U.S. 973, 100 S.Ct. 1671, 64 L.Ed.2d 252 (1980). On August 13, 1980, Bowden again petitioned the Superior Court of Butts County for a writ of habeas corpus. The court considered the petition successive and summarily rejected it on September 4, 1980. The Supreme Court of Georgia denied Bowden's application for a certificate of probable cause to appeal this disposition. Bowden then turned to the Superior Court of Muscogee County for relief, filing an extraordinary motion for a new trial on the basis of "newly discovered evidence." The motion was heard by a different judge than the one who had tried Bowden's case (since the latter had retired) and was denied. That court then scheduled Bowden's execution for September 3, 1982, but stayed it pending Bowden's appeal of the court's order denying his motion for a new trial. The Supreme Court of Georgia affirmed that order on October 27, 1982, Bowden v. State, 250 Ga. 185, 296 S.E.2d 576 (1982), and a new execution date, December 16, 1982, was set.
On December 10, 1982, Bowden petitioned the district court for a writ of habeas corpus and moved for a stay of his execution, which was granted. On May 6, 1983, the district court denied Bowden's petition without an evidentiary hearing. On June 10, it granted Bowden's application for a certificate of probable cause to appeal, and this appeal followed.
In this appeal, Bowden presents six federal constitutional claims. 4 Each claim is exhausted, having been presented to the Georgia courts and disposed of on the merits. First, Bowden claims that the state trial court failed to order a psychiatric examination for the purpose of determining Bowden's competence to stand trial, in violation of the due process clause of the fourteenth amendment. Second, Bowden claims that the trial court's refusal to appoint a psychiatrist to examine him precluded him from presenting evidence of his mental illness in mitigation of sentence at the sentencing phase of his trial, in violation of the due process clause of the fourteenth amendment. Third, Bowden claims that the trial court prevented his attorney from arguing Bowden's mental condition to the jury as a mitigating circumstance during the sentencing phase of the trial, in violation of the eighth and fourteenth amendments. Fourth, Bowden claims that the prosecutor denied him due process of law, in violation of the fourteenth amendment, by failing to give him clear notice of the prior convictions the state planned to use against him as an aggravating circumstance at the sentencing phase of his trial. Fifth, Bowden claims that the trial court denied him his sixth and fourteenth amendments right of confrontation by allowing the prosecutor to introduce James Graves' confession into evidence without calling Graves to the witness stand to testify. 5 Sixth, Bowden claims that his lead trial counsel rendered ineffective assistance, in violation of the sixth and fourteenth amendments, in failing to interview prosecution witnesses prior to trial and in failing to unearth readily available evidence of Bowden's low intelligence for use in mitigation during the sentencing phase of Bowden's trial.
Bowden contends that the record establishes each of these claims as a matter of law and that he is entitled to the issuance of the writ. If the record does not establish these claims as a matter of law, Bowden contends that he is entitled to an evidentiary hearing in the district court to prove them. We conclude that an evidentiary hearing in the district court is not necessary. Bowden's first five claims must be determined on the basis of the record of the criminal proceedings, both pretrial and trial, against Bowden in the Superior Court of Muscogee County. That record demonstrates that Bowden is not entitled to relief on any of these claims. Bowden's sixth claim was fully and fairly litigated in the first habeas corpus proceeding that Bowden brought in the Superior Court of Butts County. That court's findings of fact on this claim, which we presume to be correct, 6 demonstrate that Bowden's sixth claim must also be denied.
Bowden claims that the trial judge committed constitutional error by refusing to have him examined by a...
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Trial Proceedings and Motions
...is inappropriate for counsel to argue off the record in an attempt to refer to extraneous and irrelevant information . Bowden v. Francis , 733 F.2d 740 (11th Cir. 1984). It is improper for counsel to comment on a court’s ruling in a case, whether it be the court’s sustaining or overruling o......
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Trial Proceedings and Motions
...is inappropriate for counsel to argue off the record in an attempt to refer to extraneous and irrelevant information . Bowden v. Francis , 733 F.2d 740 (11th Cir. 1984). It is improper for counsel to comment on a court’s ruling in a case, whether it be the court’s sustaining or overruling o......
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Trial proceedings and motions
...is inappropriate for counsel to argue o൵ the record in an attempt to refer to extraneous and irrelevant information . Bowden v. Francis , 733 F.2d 740 (11th Cir. 1984). It is improper for counsel to comment on a court’s ruling in a case, whether it be the court’s sustaining or overruling of......