Corn v. Zant

• Citation: 708 F.2d 549
• Decision Date: 15 June 1983
• Docket Number: No. 81-7649,81-7649
• Parties: Charles Thomas CORN, Petitioner-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Jackson Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 549

708 F.2d 549

Charles Thomas CORN, Petitioner-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Jackson Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.

No. 81-7649.

United States Court of Appeals Eleventh Circuit.

June 15, 1983.

Rehearing and Rehearing En Banc Denied Aug. 11, 1983.

W. Davis Hewitt, Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Harold A. Miller, III, Decatur, Ga., for petitioner-appellee, cross-appellant.

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

Before HILL and HENDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

HENDERSON, Circuit Judge:

The petitioner-appellee, Charles Thomas Corn, filed a writ of habeas corpus pursuant to the provisions of 28 U.S.C. Sec. 2254 (1976) seeking to overturn his conviction and death sentence for murder and his conviction for armed robbery in the Superior Court of Clayton County, Georgia. He alleged twenty-one grounds for relief in the district court, although some of these issues were not raised in the state trial or habeas corpus court. However, by supplemental brief to this court, the state has expressly waived the exhaustion requirement. See Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). Of the perceived twenty-one errors asserted in the federal district court, all but one were rejected by that court. The district court did find merit in Corn's challenge to the sentencing procedure in the state trial court, and granted his application for a writ of habeas corpus. The respondent in the state and federal habeas proceedings, Walter Zant, appeals the grant of the writ and Corn cross-appeals the denial of his other grounds of relief.

Charles Thomas Corn was convicted of murdering a "Stop and Go" convenience store employee and stealing $47.00 from the cash register in Clayton County, Georgia in 1975. The shop attendant, Mary Long, was dragged into the storage area where she was stabbed to death with a steak knife. After he killed Long, and with her blood on his hands and shirt, Corn waited on customers, telling them he had been the victim of an attempted robbery. These customers subsequently identified Corn. When Corn was arrested a few days later, his wife came to the police station and asked if he had killed the woman at the Stop and Go store. He answered, "Yes, I killed the girl, but I didn't mean to."

Upon his conviction, a superior court jury sentenced him to death on May 26, 1976. On a mandatory review of the death sentence in accordance with Ga.Code Ann. Sec. 27-2537 (recodified as Off.Code Ga.Ann. Sec. 17-10-35 (1982)), the Supreme Court of Georgia upheld Corn's sentence of death for murder but suspended its imposition for the armed robbery conviction. Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977), cert. denied, 436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 415 (1978). Corn then filed a petition for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. The state habeas court denied relief, which denial was subsequently affirmed by the Georgia Supreme Court. Corn v. Hopper, 244 Ga. 28, 257 S.E.2d 533 (1979). Corn then instituted this federal habeas corpus action in the United States District Court for the Northern District of Georgia. The application was referred to a magistrate under 28 U.S.C. Sec. 636(b)(1)(B) (West Supp.1983). The magistrate in turn reviewed the transcript of the state trial proceedings and conducted an evidentiary hearing on Corn's ineffective assistance of counsel claim. In an exhaustive report and recommendation to the district court, the magistrate recommended the denial of all the petitioner's claims except one--that the trial court's instructions on malice and intent impermissibly shifted the burden of proof to the defendant in violation of the due process clause of the fourteenth amendment to the United States Constitution. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Upon review, the district court adopted the bulk of the report and recommendation but disagreed with two of the magistrate's findings. The district judge first rejected the conclusion that the instructions on intent unconstitutionally shifted the burden of proof. However, as indicated, the district court granted the writ based on his belief that the state trial judge impermissibly disclosed to the jury that Corn had an automatic appeal of the death sentence to the Supreme Court of Georgia.

Before turning to Corn's specific allegations of error, we again emphasize that a federal court does not sit as a state appellate court to correct violations of state evidentiary rules. Bryson v. Alabama, 634 F.2d 862 (5th Cir.1981); Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir.1980); Woods v. Estelle, 547 F.2d 269, 271 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977). ¹ Nor is it our role to analyze every infirmity that might have been reached on direct appeal. Our inquiry is restricted to those aspects of the trial affecting the petitioner's federal constitutional rights, see, Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Passman v. Blackburn, 652 F.2d 559, 567 (5th Cir.1981) cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982); Martin v. Wainwright, 428 F.2d 356, 357 (5th Cir.1970), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970).

We address first the alleged error which led the district court to grant the writ. Corn maintains that the state trial judge improperly informed the jury of Georgia's automatic appeal rule. Ga.Code Ann. Sec. 27-2537 (recodified as Off.Code Ga.Ann. Sec. 17-10-35 (1982)). He says, and the district court agreed, that such a remark had the effect of diminishing the jurors' sense of responsibility in making their life or death decision at this crucial stage of the trial. ² This problem arose during a break in the jury's deliberations when some of the jurors questioned the trial judge about his authority to change the sentence imposed by that body. The relevant portion of the colloquy between the court and the jurors is as follows:

Juror Deaton: Yes, your Honor, if the death penalty is invoked, does that automatically mean that the defendant will be placed in the electric chair?

Court: I don't know how to answer that, except I will say this. In the event there is a death penalty, the law provides for mandatory appeal and the case must be appealed by law. And if upon affirmance by the higher court, then the matter is as it is provided by law. [sic] I hesitate to say much more to you because for fear that I may make some judicial error in the case and I can only tell you that I have already told you about as much as I can under the law. Now is there anything else bearing on your mind?

Juror Randall: One thing that has been going through our minds is if we invoke the death penalty and that specifies the electric chair, can you as the overriding judge right now say, come in and say that he is going to get the electric chair or that he can have death by prison, or life imprisonment? That he is to die in prison and never to get out?

Court: Now the--

Juror Randall: Could you yourself do that?

Court: The Court by law in this particular case fix [sic] and imposes sentence that you provide in your sentence. I cannot change your sentence.

Juror Randall: That's what we wanted to know, if you could do that.

Court: The only sentence that I would pass is as I told you if you find no aggravating circumstances in connection with Count 1 pertaining to armed robbery, then I would set that sentence.

Juror: Not to repeat yourself, but if we did say life imprisonment, we have no idea about parole at all, right?

Court: That's right. This is something that the Court is not authorized to comment on.

Trial Transcript at 1077-78. (Emphasis added).

The jury then retired to the jury room and shortly thereafter returned with their recommendation of the death penalty. The trial judge imposed the sentence of death as required by law. Ga.Code Ann. Sec. 26-3102 (recodified as Off.Code Ga.Ann. Sec. 17-10-31 (1982)).

In reviewing the denial of Corn's state habeas corpus petition, the Supreme Court of Georgia considered whether the trial judge's reference to the appellate process was so prejudicial as to necessitate granting post-conviction relief. The court affirmed the state habeas court, stating:

Viewing the court's sentencing charge as a whole, we find that the jury was instructed to decide on their sentence from the evidence and law presented at the sentencing hearing, taking the full responsibility of determining life or death for the defendant. No remarks by the court could be construed as encouraging the jury to attach diminished consequences to their verdict.

Corn v. Hopper, 244 Ga. 28, 31, 257 S.E.2d 533, 536 (1979). We agree with the Georgia Supreme Court. The court explicitly held that this determination did not conflict with its prior decisions in which the death penalty was set aside when prosecutors, in their arguments, had referred to the mandatory review procedures. In Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 367 (1975), the death sentence was vacated because the "inevitable effect" of the prosecutor's emphasis on the defendant's right to an automatic appeal was "to encourage the jury to attach diminished consequence to their verdict." Similarly, where the district attorney stressed to the jury that "the State executes only guilty persons after they've been tried and convicted and appealed and everything exhausted," Georgia's highest court did not hesitate to invalidate the death penalty. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833, 839 (1977). See also Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) (death sentence set aside due to prosecutor's improper prediction of the consequences of the jury's verdict). ...