Dobbs v. Zant

• Decision Date: 07 August 1989
• Docket Number: Civ. A. No. 4:80-CV-247-HLM.
• Citation: Dobbs v. Zant, 720 F.Supp. 1566 (N.D. Ga. 1989)
• Parties: Wilburn DOBBS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. District Court — Northern District of Georgia

720 F. Supp. 1566

Wilburn DOBBS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.

Civ. A. No. 4:80-CV-247-HLM.

United States District Court, N.D. Georgia, Rome Division.

August 7, 1989.

Michael Kennedy McIntyre, Office of Michael Kennedy McIntyre and Robert Altman, Office of Robert Altman, Atlanta, Ga., for Wilburn Dobbs, petitioner.

Mary Beth Westmoreland, Office of State Atty. Gen., Atlanta, Ga., for Walter D. Zant, respondent.

ORDER

HAROLD L. MURPHY, District Judge.

Wilburn Dobbs is a Georgia inmate currently under a death sentence. He was convicted in 1974 in the Superior Court of Walker County of two counts of aggravated assault, two counts of armed robbery, and one count of murder. All the convictions arose from an incident at a convenience store in Chickamauga, Georgia in 1973.

This Court previously denied habeas corpus relief on all of Dobbs' guilt/innocence claims and some of his sentencing phase claims, but granted relief on his claim that the trial court's instruction on mitigating circumstances was inadequate. A ruling on Dobbs' remaining sentencing claims was reserved at that time. Both Dobbs and the State appealed the decision to the Eleventh Circuit, which affirmed on all grounds except the mitigating circumstances claim, which it reversed. Dobbs v. Kemp, 790 F.2d 1499 (11th Cir.1986), reh'g denied with modifications, 809 F.2d 750, cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). The Eleventh Circuit remanded the case to this Court to consider Dobbs' remaining sentencing claims which this Court had previously reserved deciding.

The claims now before the Court are as follows: (1) the introduction at the sentencing phase of prior convictions was improper because the convictions had been obtained unconstitutionally; (2) the jury charge failed to limit the jury's discretion to impose the death penalty; (3) passion, racial prejudice, and other arbitrary factors affected the sentencing decision; (4) the jurors voted for death automatically upon finding Dobbs guilty of murder; (5) the trial judge refused to answer the jury's question regarding parole; (6) the language of the verdict form was unconstitutional; and (7) the jurors did not think that Dobbs would in fact be executed.

Before analyzing the claims, the Court notes that during discovery following the Eleventh Circuit's remand order, the Court permitted Dobbs to depose the jurors in his case. The State objected based on Federal Rule of Evidence 606(b),¹ which generally bars post-verdict testimony of jurors. The State argued that although the jurors could testify about extraneous influences, they could not testify about the deliberations, and that the line between those types of evidence is too fine to permit testimony by depositions.

The Court decided to permit the depositions solely because one of Dobbs' claims was that race was a factor in his sentencing decision, and the recent Supreme Court opinion in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), requires that Dobbs demonstrate actual prejudice in his case. Although the Court permitted the depositions to be taken for discovery purposes, it reserved ruling on the admissibility of the evidence until it decided the merits of Dobbs' claims. For the reasons provided in this order, the jurors' statements are admissible for some purposes but not for others.

I. Admission of Prior Convictions

Dobbs argues that, in violation of the constitution, the State used evidence of two prior uncounseled convictions and a guilty plea in which the record does not show that Dobbs was informed of his constitutional rights. He maintains that the jurors relied on those convictions in part in deciding on the death penalty.

The State responds that Dobbs' claim has not been properly presented in this Court, and has not been exhausted in the state courts. The State argues further that the convictions were not used improperly and that, in any event, the trial jurors did not consider the convictions at the death penalty phase of Dobbs' trial.

Pretermitting the State's procedural arguments, the Court finds that Dobbs is not entitled to relief on the merits of his claim. After the jury returned its guilty phase verdict, the prosecutor did tender evidence of prior convictions for forgery, escape and shoplifting. However, in its charge to the jury, the trial court unambiguously stated that the evidence of prior convictions could not be considered during the death penalty deliberations. Trial Transcript at 508. Further, as the Eleventh Circuit has found, the trial court charged the jury that the only aggravating factor argued by the State was that the murder was committed while Dobbs was engaged in the commission of another capital felony. 790 F.2d at 1513; see also Trial Transcript at 512.

Dobbs argues, nevertheless, that one of the jurors stated in her deposition that she voted for the death penalty because of "the things he done before," and that her statement shows that the jury did consider Dobbs' prior convictions during the sentencing deliberations. First, because the jurors' statements were taken 15 years after the trial, their recall of their understanding of the instructions has little relevance under Federal Rule of Evidence 401. Second, the statement is inadmissible under Federal Rule of Evidence 606(b), because it is a post-decision statement of a juror about her mental process in reaching the decision. See Fulghum v. Ford, 850 F.2d 1529, 1535 (11th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989).

The legislative history behind Rule 606(b) supports that construction. The Supreme Court transmitted a version of the rule to the House of Representatives. The House Judiciary Committee proposed a more expansive scope of admissible juror testimony. The Senate Judiciary Committee disagreed with that expansion, stating in part that the House version "would have the effect of opening verdicts up to challenge on the basis of what happened during the jury's deliberations, for example, where a juror alleged that the jury refused to follow the trial judge's instructions...." Congress eventually enacted the Senate version. Tanner v. United States, 483 U.S. 107, 122-25, 107 S.Ct. 2739, 2748-49, 97 L.Ed.2d 90 (1987); see also Watson v. State of Alabama, 841 F.2d 1074, 1076 n. 2 (11th Cir.) ("jurors are incompetent to testify as to the effect of an ... instruction on the jury's deliberation or a juror's thought processes...."), cert. denied, ___ U.S. ___, 109 S.Ct. 164, 102 L.Ed.2d 134 (1988). Therefore, a claim that the jury misunderstood or misapplied the law can be shown only by proof that the jury instructions are not clear and accurate.

The Court concludes that the trial court's instruction to the jury not to consider the prior convictions shows that the convictions did not affect the sentencing decision. Habeas relief on this ground must be denied.

II. The Charge on the Jury's Discretion

Dobbs argues that the trial court committed constitutional error in instructing the jury on the method for determining whether to impose the death penalty. Dobbs cites portions of the charge, where the judge stated that "the law provides no standards for the guidance of the jury in the selection of the penalty," and that "the only standard, if any, that you will be permitted to consider ... is the question of whether or not you find beyond a reasonable doubt that an aggravating circumstance exists." Dobbs stresses that the charge was misleading because the jurors were not told clearly (1) that they could decide not to impose the death penalty even if an aggravating circumstance were found to exist and (2) that they were obligated to consider evidence in mitigation.

The State responds that the resolution of this issue is governed by the Eleventh Circuit's decision finding the trial court properly charged the jury on the nature and function of mitigating circumstances.

Under Georgia law, a jury must find that an "aggravating factor" exists before it can impose the death penalty. The purpose of aggravating factors, therefore, is to "narrow the class of persons convicted of murder who are eligible for the death penalty." Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). Once an aggravating factor is found, the jury has "absolute discretion" whether to impose the death penalty by considering "all evidence in extenuation, mitigation and aggravation of punishment." Id. at 862, 103 S.Ct. at 2735.

In its decision on the trial court's charge on the nature and function of mitigating circumstances in Dobbs' case, the Eleventh Circuit first cited instructions that, it found, accurately explained the difference between aggravating and mitigating circumstances. The Court then stated as follows:

In addition, other instructions cautioned the jury that they were not authorized to recommend the death sentence unless they first found `beyond a reasonable doubt ... one of the aggravating circumstances which the Legislature has provided.' See, e.g., Trial Transcript at 511. The trial judge also described the particular statutory aggravating circumstance argued by the state, i.e., that the crime was committed while the defendant was engaged in the commission of another capital felony. Id. at 512. Moreover, the trial judge told the jury "you are not bound to sentence him to death even though you find there is an aggravating circumstance which the Legislature saw fit for a jury to consider." Id. at 516.

Dobbs v. Kemp, 790 F.2d at 1513. Based on this passage from the Eleventh Circuit's opinion and the Court's independent reading of the entire charge, the Court finds that the jury instructions accurately and adequately explained the contours of the jury's discretion vis-a-vis aggravating circumstances. Contrary to Dobbs' contention, the jury was informed that they could decide not to...