Dobbs v. Kemp

Decision Date21 May 1986
Docket NumberNo. 84-8153,84-8153
Citation790 F.2d 1499
PartiesWilburn DOBBS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Respondent-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert Altman, Atlanta, Ga. (Court-appointed), for petitioner-appellant, cross-appellee.

Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee, cross-appellant.

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

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.


ANDERSON, Circuit Judge:

Appellant and cross-appellee, Wilburn Dobbs, is a Georgia prisoner currently under a sentence of death. In late 1980, he sought habeas corpus relief in the District Court for the Northern District of Georgia pursuant to 28 U.S.C. Sec. 2254. The district court denied relief on the basis of alleged constitutional errors in the guilt/innocence phase of Dobbs' trial. However, while rejecting several of Dobbs' claims concerning the sentencing phase of his trial, the district court granted relief on the ground that the trial judge's instructions with regard to the function of mitigating circumstances under the Georgia death penalty statute were insufficient. Thus, Dobbs' death sentence was set aside subject to the state's right to institute resentencing proceedings. Finally, the district court reserved ruling on six additional sentencing phase issues raised by Dobbs. 1

The state appeals the death sentence relief granted by the district court. Dobbs also appeals, pressing his guilt/innocence phase claims, and urging affirmance of the relief which the district court granted with respect to the sentencing phase, and also urging affirmance of that relief on alternative grounds. Oral argument was held on September 17, 1984. The parties were notified that the decision would be withheld pending disposition of Peek v. Kemp, No. 82-8713, which was argued before the en banc court on June 11, 1985. In light of this court's recent en banc opinion in Peek v. Kemp, 784 F.2d 1479 (11th Cir.1986) (en banc), we reverse the judgment of the district court which had granted the writ on the basis of the trial judge's instructions regarding the function of mitigating circumstances under the Georgia death penalty statute. We affirm in all other respects, but remand the case to the district court for consideration of the sentencing phase claims with respect to which it reserved decision.


On May 22, 1974, Dobbs was found guilty in the Superior Court of Walker County, Georgia of two counts of aggravated assault, two counts of armed robbery, and one count of murder. 2 Dobbs was sentenced to consecutive sentences of 10 years each on the aggravated assault conviction, to life imprisonment for each armed robbery conviction, and to death by electrocution for the murder conviction. Dobbs appealed the convictions and death sentence to the Georgia Supreme Court which affirmed in all respects. Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977).

Then, in July 1977, Dobbs petitioned for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. After an evidentiary hearing, all requested relief was denied. Dobbs v. Hopper, No. 77-185 (Tattnall Sup.Ct., Oct. 9, 1979). Dobbs filed an application for probable cause to appeal the superior court ruling which was denied by the Georgia Supreme Court on Additionally, while the state habeas petition was pending, Dobbs filed an extraordinary motion for a new trial. An evidentiary hearing was held, and a new trial was denied. Georgia v. Dobbs, No. 8403 (Walker Sup.Ct., Aug. 13, 1979). The Georgia Supreme Court affirmed, and the United States Supreme Court denied certiorari. Dobbs v. State, 245 Ga. 208, 264 S.E.2d 18, cert. denied, 446 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980). 3

                February 20, 1980.  Dobbs sought a writ of certiorari in the United States Supreme Court which was also denied.    Dobbs v. Hopper, 447 U.S. 930, 100 S.Ct. 3029, 65 L.Ed.2d 1125 (1980)

The following issues are presented to us on appeal:

(1) whether the following improprieties and evidentiary errors, individually and cumulatively, rendered Dobbs' trial fundamentally unfair under the Fourteenth Amendment: (a) prosecutor's improper closing argument at the guilt/innocence phase of the trial; (b) admission of evidence of another crime attributed to Dobbs; (c) introduction of testimony by prosecution which was known to be false and prejudicial; and (d) introduction of incriminating hearsay;

(2) whether the pre-trial identifications of Dobbs by two key witnesses were so suggestive as to unconstitutionally taint those witnesses' in-court identifications of Dobbs;

(3) whether the trial court's jury instruction unconstitutionally shifted the burden of proof to Dobbs as to the element of intent;

(4) whether the trial court's instruction as to the meaning of "assault" was improper and unconstitutional;

(5) whether the grand and traverse jury pools from which the jurors in Dobbs' case were selected were unconstitutionally composed;

(6) whether the process of "death qualifying" the jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), created a jury which was conviction-prone and not fairly representative of the community;

(7) whether a potential juror was improperly removed on Witherspoon grounds;

(8) whether the court's instructions regarding mitigating circumstances were constitutionally deficient;

(9) whether Dobbs' attorney provided ineffective assistance during the sentencing phase; and

(10) whether the failure to transcribe counsels' closing arguments during the sentencing phase was unconstitutional.

Each of these issues will be discussed in turn below.


Improper prosecutorial argument and evidentiary errors are grounds for granting a writ of habeas corpus only when the trial is rendered fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1973); Shaw v. Boney, 695 F.2d 528 (11th Cir.1983). We evaluate the following arguments pursuant to the fundamentally unfair standard.

A. Prosecutor's Closing Argument at the Guilt Phase

The state's attorney made the following closing argument at guilt/innocence trial:

I don't know. I could stand up here and talk a long time, but I do say this, there's people that it just ain't safe to have on your streets, and there is people that ain't safe to have around you, and Of course, if you find that he didn't do it, or if you have a reasonable doubt, then you can acquit him.

there's people that it ain't safe, your property ain't, your life ain't, and if this evidence hasn't demonstrated such a case, study about it.

When you do that, he'll walk out the door with everybody else.

Can you afford to take a chance?

Dobbs argues that the above statement undermines the presumption of innocence and proper burden of proof required in a criminal trial. The state seems to admit that this statement was improper, but argues that it does not rise to the level of being fundamentally unfair. The prosecutor's statement was improper because it was a veiled implication that guilt beyond a reasonable doubt is or should be a permissive standard.

The relevant precedents suggest that the statement is not of constitutional magnitude. "Prosecutorial remarks must be so prejudicial that they render the trial fundamentally unfair." Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1973); Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc); Cobb v. Wainwright, 609 F.2d 754 (5th Cir.), 4 cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); Houston v. Estelle, 569 F.2d 372 (5th Cir.1978).

In light of the obscurity of the improper implication, in light of the clear and repeated instructions to the jury from the trial court itself that the jury had to find guilt beyond a reasonable doubt, and in light of the overwhelming evidence of Dobbs' guilt, Dobbs has fallen woefully short of demonstrating that his trial was rendered fundamentally unfair.

B. Admission of Evidence of "Prior Crime"

In response to defense counsel's question to accomplice Walter Harris as to whether a particular car was involved in the crime, Harris answered: "No, sir, but it had something to do with Mr. Lemenick's hold-up." Immediately thereafter, defense counsel moved for a mistrial. The court refused to order a mistrial, but offered a curative instruction which defense counsel declined.

Although Georgia and federal law do not permit evidence of prior crimes except for limited purposes, the comment by Harris did not render the trial fundamentally unfair. As the district court indicated, the statement does not explicitly accuse Dobbs of a prior crime by any means. Even assuming that the jury attributed the so-called Lemenick hold-up to Dobbs, it would have been a very insignificant factor in the case. An erroneous state evidentiary ruling will be considered fundamentally unfair only if it concerns a matter which is " 'material in the sense of a crucial, critical, highly significant factor.' " Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983) (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976)).

C. Testimony of Daisy Mae Yates

Grace Foster, a witness who identified Dobbs as the perpetrator at trial, 5 was beaten severely at the scene of the crime. Foster's daughter, Daisy Mae Yates, testified that she was visiting her mother at a local hospital the afternoon after the crime. She further testified that she saw a man whom she later identified as Dobbs lurking around the hospital. Dobbs claims this evidence was improperly admitted because it conflicted with a police officer's testimony as to where Dobbs was at the time in question. He...

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