Darden v. Wainwright, 79-566 Civ-T-H.

• Citation: 513 F. Supp. 947
• Decision Date: 08 May 1981
• Docket Number: No. 79-566 Civ-T-H.,79-566 Civ-T-H.
• Parties: Willie Jasper DARDEN, Petitioner, v. Louie L. WAINWRIGHT, Secretary of Department of Offender Rehabilitation, State of Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

513 F. Supp. 947

Willie Jasper DARDEN, Petitioner, v. Louie L. WAINWRIGHT, Secretary of Department of Offender Rehabilitation, State of Florida, Respondent.

No. 79-566 Civ-T-H.

United States District Court, M. D. Florida, Tampa Division.

May 8, 1981.

Robert Augustus Harper, Jr., Gainesville, Fla., for petitioner.

Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondent.

MEMORANDUM OPINION

HODGES, District Judge.

Willie Jasper Darden, a Florida prisoner under sentence of death, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition was referred to a United States Magistrate who conducted an evidentiary hearing and subsequently rendered a Report and Recommendation that relief be granted on two grounds. The parties filed their respective objections to the Magistrate's Report, and a hearing was then conducted before me in order to facilitate the de novo determination required by 28 U.S.C. § 636(b)(1)(B) and (C). See also, Rule 6.02, M.D.Fla. Rules, and Rule 8(b)(4), Rules Governing § 2254 Cases. Upon full consideration of the Magistrate's Report, the record of the proceedings he conducted, and the case in general, I am convinced that the infirmities in the Petitioner's trial do not assume constitutional dimensions and that his petition should be denied.

I Background

Carl's Furniture Store was located in Lakeland, Florida. It was a small retail store dealing in used furniture and household appliances. The business was owned by Mrs. Helen Turman and her husband Carl. Their home was adjacent to the store, and Mrs. Turman managed the business alone while Mr. Turman held employment elsewhere.

On the evening of September 8, 1973, Mrs. Turman was the victim of an armed robbery in her store. While that crime was in progress Mr. Turman happened to enter upon the scene. He was followed a few minutes later by Phillip Arnold, a teenaged neighbor. What happened next was succinctly described by the Supreme Court of Florida in the following terms:¹

The record shows that Appellant first robbed Mrs. Helen Turman and that, when her unarmed husband Carl started to enter the store, Appellant shot him between the eyes scattering blood and brains. As a sixteen year old boy, Phillip Arnold, tried to aid the wounded man, Appellant shot him in his mouth, neck, and side, leaving permanent injuries, including a bullet still in his neck at time of trial. While her bleeding husband lay in a rainstorm at the door, Appellant tried to force Mrs. Turman to commit an unnatural sex act upon him at gun point. She refused, and after shooting the boy Appellant left the area.

Darden was arrested and subsequently indicted for first degree murder (of Mr. Turman), robbery (of Mrs. Turman), and assault with intent to commit murder (upon Phillip Arnold). Following a change of venue to another county, the trial was held in January, 1974. In addition to circumstantial evidence against him, Darden was positively identified during the trial by Mrs. Turman and Phillip Arnold. His defense was alibi, and he was the sole witness to testify in his behalf.²

The jury found the Petitioner guilty as charged; and, following the second phase of the bifurcated trial required by Florida Statute 921.141 — the constitutionality of which has been settled by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) — the jury recommended that Darden be sentenced to death. The trial judge then entered his independent findings concerning aggravating and mitigating circumstances, pursuant to the statute, and followed the jury's recommendation by imposing a sentence of death.

An appeal was taken to the Supreme Court of Florida which affirmed the conviction and the sentence. Darden v. State, 329 So.2d 287 (Fla.1976). A petition for a writ of certiorari was granted by the Supreme Court of the United States on November 1, 1976. Darden v. Florida, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976). By order entered January 10, 1977, the Court limited the issues to be considered to the one "... dealing with whether the prosecution's summation to the jury in the circumstances of this case deprived the petitioner of due process of law." 429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 (1977). Thereafter, on April 19, 1977, following oral argument, the Court entered an order dismissing the writ of certiorari "as improvidently granted." 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977). The Petitioner then returned to the State Courts³ and, ultimately, to this Court seeking habeas relief after the Governor had issued a death warrant.

The Magistrate's Report recites twenty five constitutional claims being asserted by the Petitioner, but only two were found to have merit: (1) the claim concerning the prosecution's closing argument; and (2) the claim concerning Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

II The Prosecution's Closing Argument

(a) The Supreme Court's grant of certiorari. The principal issue raised during the Petitioner's direct appeal from his conviction — or, at least, the principal issue addressed by the Supreme Court of Florida in disposing of that appeal — concerned the inflammatory nature of the prosecution's closing argument to the jury at trial; and, as previously noted, the Supreme Court of the United States initially granted certiorari to consider that very issue. The writ was then discharged, after oral argument, as having been improvidently granted. The Magistrate did not consider or discuss the effect of the Supreme Court proceeding, and the parties have cited no authority on that point.

It is a well known rule, of course, that denial of a petition for a writ of certiorari by the Supreme Court does not constitute an adjudication.⁴ But does the same result obtain upon collateral proceedings in the same case when certiorari to review a precisely articulated issue has been granted, not denied, and the writ is then subsequently discharged after oral argument? One might well suppose, at least with respect to the parties in such a case, that the discharge of the writ constituted a sufficient adjudication to preclude relitigation of that issue in collateral proceedings under 28 U.S.C. § 2254 unless the order discharging the writ expressly preserved the question. See, for example, Smith v. Mississippi, 373 U.S. 238, 239, 83 S.Ct. 1265, 1266, 10 L.Ed.2d 321 (1963), in which the order discharging a writ previously granted specifically provided that such disposition was "without prejudice to an application for federal habeas corpus relief under 28 U.S.C. § 2241 after exhaustion of any state remedies still open ..." C.f., Shippy v. Estelle, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979), and Jurek v. Estelle, 430 U.S. 951, 97 S.Ct. 1592, 51 L.Ed.2d 800 (1977), in which mere denials of petitions for certiorari contained similar provisions concerning habeas relief.

It does not appear, however, that the Supreme Court has delineated any distinction between the adjudicative effect of a denial and a discharge of a writ of certiorari; and, indeed, in at least one decision the Court declared that the two forms of disposition have the same inconclusive result. Hughes Tool Company v. Trans World Airlines, Inc., 409 U.S. 363, 365, 93 S.Ct. 647, 650, n.1, 34 L.Ed.2d 577 (1973). See also, Miller v. Carter, 434 F.2d 824 (9th Cir. 1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1658, 29 L.Ed.2d 137 (1971). Accordingly, until the Supreme Court holds otherwise, this Court cannot dispose of the claim concerning the prosecutor's closing argument on the ground of a prior federal adjudication inherent in the Supreme Court's discharge of a writ previously issued to consider that claim.

(b) Wainwright v. Sykes and the lack of contemporaneous objection. There is a second preliminary issue which must be resolved before the constitutional propriety of the prosecutor's argument can be considered on its merits. The State contends, pursuant to the decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that the Petitioner waived and is now precluded from asserting the claim because he did not make a timely objection during the trial as necessitated by Florida's contemporaneous objection requirement, and he has not demonstrated "cause" and "prejudice" with respect to that failure. There is, however, an established exception to this application of Wainwright v. Sykes. When the State Court does not rely upon or enforce its contemporaneous objection requirement as a waiver, and proceeds to adjudicate the claim on its merits, then the federal habeas court should also reach and decide the constitutional issue presented. Moran v. Estelle, 607 F.2d 1140, 1141-42 (5th Cir. 1979); Thompson v. Estelle, 642 F.2d 996 (5th Cir. 1981). See also, County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

The difficulty presented by this case arises from the fact that the Supreme Court of Florida apparently disposed of the Petitioner's direct appeal on both grounds, alternatively. It first confronted and decided the fair trial issue concerning the prosecutor's argument, and then held, in the final paragraph of its opinion, that the lack of contemporaneous objection afforded an "additional" basis for denying relief, citing by footnote reference its decision in State v. Jones, 204 So.2d 515 (Fla.1967).⁵

Ratcliff v. Estelle, 597 F.2d 474 (5th Cir. 1979), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979), presented a similar problem. The underlying issue concerned the petitioner's claim that blacks had been systematically excluded from the grand jury which indicted him. He had not objected at the time of trial and first raised the issue in post-conviction habeas proceedings in the state courts. The state trial Court held that the claim had been waived by failure to make timely objection, but also held, secondarily, that the claim lacked merit...