Cape v. Francis

• Decision Date: 31 August 1984
• Docket Number: No. 83-8341,83-8341
• Citation: 741 F.2d 1287
• Parties: Garnett William CAPE, Petitioner-Appellant, v. Robert FRANCIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1287

741 F.2d 1287

Garnett William CAPE, Petitioner-Appellant, v. Robert FRANCIS, Warden, Respondent-Appellee.

No. 83-8341.

United States Court of Appeals, Eleventh Circuit.

Aug. 31, 1984.

Stephen B. Bright, Atlanta, Ga., Ronald J. Tabak, John Charles Boger, New York City, for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before HENDERSON and HATCHETT, Circuit Judges, and JONES, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Garnett William Cape, a Georgia state prisoner under sentence of death, appeals an order of the United States District Court for the Middle District of Georgia denying his petition for writ of habeas corpus. Cape assigns as error (1) the admission into evidence of expert psychiatric opinion testimony in violation of his constitutional privilege against compelled self-incrimination and his constitutional right to assistance of counsel; (2) the admission of self-incriminating pre-trial statements made while in police custody; (3) the admission into evidence during the sentencing phase of his trial of the opinion testimony of an agent of the Georgia Bureau of Investigation concerning the outrageous and vile nature of the murder and the youthfulness of the victim; (4) ineffective assistance of counsel; (5) the imposition of the death sentence on the basis of a single and unconstitutionally vague aggravating circumstance; (6) the failure of the Supreme Court of Georgia to consider cases in which life sentences were imposed in the conduct of its proportionality review of his death sentence; and (7) the district court's refusal to grant him an evidentiary hearing to develop material facts crucial to his claim that the death sentence is discriminatorily applied in Georgia. We have examined the record of this case and conclude that Cape was tried, convicted and sentenced to die in accordance with the Constitution. We therefore affirm the district court's denial of Cape's petition for writ of habeas corpus.

Based upon a series of events occurring on May 17, 1979 in and around Franklin County, Georgia, the petitioner, Garnett William Cape, then a fifty-six year old male, was indicted for the murder of Karen Dove, the fifteen year old step-daughter of his niece. The historical facts are accurately summarized in Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (1980):

"From the evidence presented at trial, the jury was authorized to find the following facts:

"The appellant, a 56-year-old male, was the uncle of the victim's mother. He was well acquainted with the victim's family. The victim's father and the appellant had hunted and fished together often. He had socialized with the victim's family on many occasions, and had worked with the victim's brother. He had developed a close relationship with all the members of the family, including the victim, a 15 year old high school student.

"Approximately three months prior to the murder, the appellant had been told by the victim's mother to stay away from the victim. The mother testified that the appellant 'seemed a little too interested in her.' The victim was also told to stay away from the appellant. In response, the appellant ceased visiting the family but continued to see the victim's father and brother at their places of employment.

"The appellant had promised to buy the victim an expensive car. They had looked at the car together. On the 14th day of May, the appellant had signed a purchase order. He had asked for a delay in delivery in order to get funds from a Texas bank. It was later established at trial that the appellant did not have such an account.

"On the morning of the murder, the appellant drove the victim and her friend, Tammy Lee Dickerson, to school. He talked to the victim alone in the car for a few minutes after her friend went into the school. The victim was last seen alive leaving school at approximately 3:15 p.m.

"At approximately 4:45 p.m., the appellant came into the victim's brother's place of employment and told him he had 'lost' his sister. The victim's brother noticed that appellant was frightened, nervous, and had cuts on his hands and scratches on his face.

"The appellant explained that he had picked up the victim after school, and had taken her to the courthouse to get her birth certificate, which was required to enable her to obtain a learner's driving permit. He testified that she went into the courthouse but didn't come out, and although he had looked for her, she was missing.

"The victim's brother then began to search for his sister. The appellant had the victim's brother drive him to see a classmate of the victim. Appellant asked her whether the victim was in a good mood that day. Thereafter, the appellant went to the victim's father and, in tears, told him the same story. In response the victim's father told the appellant that, 'You know you wasn't suppose to pick her up,' and the appellant replied, 'Yeah, I'll never bother her again, I'll never buy her nothing else.'

"It was established that the victim's mother had gotten the victim a birth certificate and learner's permit the day prior to the murder.

"The victim's brother accompanied by Tammy Lee Dickerson and another young female continued to search for the victim. He had gone to the appellant's house, but finding no one home had not entered. Later, the victim's brother and his companions returned to the appellant's house. He found a note on the back door which read, 'Gone to Anderson. Garnett.' The victim's brother then broke into the house through the front door. He found the front room and kitchen in an unusually neat and clean condition.

"The victim's friend, Tammy Lee Dickerson, found the victim's body upon entering a bedroom. The victim had been beaten and stabbed to death. Her clothes were in disarray, so that she was partially nude. The body had been wrapped in a sheet of black plastic in such a manner that only the upper torso was exposed.

"The local authorities were immediately notified. Close examination of the crime scene revealed bloodstains on the kitchen cabinets, door and ceiling. Attempts had been made to remove them. A mop, towels and male clothing were found with bloodstains on them. The defendant's watch, with bloodstains on the band, was also found. The bloodstains were of the same international blood type as that of the victim. A metal pipe belonging to the appellant was recovered and subsequently determined to be the weapon used to beat the victim.

"The appellant was arrested that night as he drove through Hartwell, Georgia. The officers found a loaded pistol under the seat of appellant's car and the appellant later made the statement that 'if he'd of known that the Hartwell Police would-had've done a good job of it and shot him, that he would've pulled his pistol up.'

"The appellant testified in his defense. He repeated the statement he told the victim's brother and father. He further testified that he later returned home and found the victim lying face down and fully clothed in his kitchen; that he tried to wipe the blood from her face but became sick; that although he did not know if the victim was dead or alive he did not call anyone but instead left to go to his sister's house in Hartwell, Georgia, to tell her."

Cape was tried before a jury in the Superior Court of Franklin County. He was convicted of murder, and the jury recommended the sentence of death based upon a finding of the statutory aggravating circumstance set forth in Ga.Code Ann. Sec. 27-2534.1(b)(7) (Harrison 1977); Off.Code Ga.Ann. Sec. 17-10-30(b)(7) (Michie 1982). ¹ Cape subsequently filed a motion for a new trial, which was denied by the state trial court. The Supreme Court of Georgia affirmed the conviction and sentence on October 8, 1980. Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (1980). The United States Supreme Court denied his petition for a writ of certiorari on January 26, 1981. Cape v. Georgia, 449 U.S. 1134, 101 S.Ct. 956, 67 L.Ed.2d 121 (1981).

Cape next filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on March 27, 1981. Following an evidentiary hearing on May 19, 1981, during which four affidavits and ten depositions were introduced into evidence, the superior court denied habeas corpus relief in an unreported order entered on October 28, 1981. The Supreme Court of Georgia denied an application for a certificate of probable cause to appeal on February 24, 1982 and denied a petition for rehearing on March 24, 1982. The United States Supreme Court denied certiorari on October 4, 1982. Cape v. Zant, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 147 (1982). A petition for rehearing was denied on November 29, 1982, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 (1982).

On December 17, 1982, the petitioner filed the present petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, Macon Division. The district court denied a motion for an evidentiary hearing on February 25, 1983 and entered a judgment denying the petition for a writ of habeas corpus on March 9, 1983. Cape v. Francis, 558 F.Supp. 1207 (M.D.Ga.1983). A subsequent "Motion for New Trial" was overruled on March 28, 1983, after which a notice of appeal was filed to this court. The district court granted a certificate of probable cause to appeal on May 13, 1983.

I.

Cape first complains that his fifth, sixth and fourteenth amendment rights were violated when the state trial court admitted expert psychiatric testimony that he was sane and criminally responsible for his conduct at the time of the killing. ² He focuses on the fact that he was neither advised of his constitutional rights nor provided an adequate opportunity to consult with his counsel prior to the court-ordered examination which served as the basis for the expert testimony.

Prior...