Flamer v. State of Del.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: ALITO; LEWIS; SAROKIN
• Citation: Flamer v. State of Del., 68 F.3d 736 (3rd Cir. 1995)
• Decision Date: 19 October 1995
• Docket Number: 93-9002,Nos. 93-9000,s. 93-9000
• Parties: William H. FLAMER v. STATE OF DELAWARE; Darl Chaffinch; Raymond Callaway; Harold K. Brode; William H. Porter; Gary A. Myers; Loren C. Meyers; Dana Reed; James E. Liguori; Charles M. Oberly, III; Walter Redman; Stanley W. Taylor, Acting Warden; Warden Robert Snyder; William Henry Flamer, Appellant. Billie BAILEY, Appellant, v. Robert SNYDER, Warden, Delaware Correctional Center.

Page 736

68 F.3d 736

William H. FLAMER v. STATE OF DELAWARE; Darl Chaffinch; Raymond Callaway;

Harold K. Brode; William H. Porter; Gary A. Myers; Loren

C. Meyers; Dana Reed; James E. Liguori; Charles M.

Oberly, III; Walter Redman; Stanley W. Taylor, Acting

Warden; Warden Robert Snyder;

William Henry Flamer, Appellant.

Billie BAILEY, Appellant, v. Robert SNYDER, Warden, Delaware Correctional Center.

Nos. 93-9000, 93-9002.

United States Court of Appeals Third Circuit.

Argued Feb. 16, 1994.

Argued April 26, 1994.

Reargued In Banc Nov. 22, 1994.

Decided Oct. 19, 1995.

Charlene D. Davis (Argued), Bayard, Handelman & Murdoch, P.A., Wilmington, DE, Joshua L. Simon, Law Office of David Staats, Wilmington, DE, for appellant Flamer.

Gary A. Myers (Argued), Paul R. Wallace, Carl C. Danberg, Deputy Attorney General, Department of Justice, Wilmington, DE, for appellees.

Edmund D. Lyons, Jr. (Argued), David Jay Lyons, Wilmington, DE, for appellant Bailey.

Paul R. Wallace (Argued), Deputy Attorney General, Department of Justice, Wilmington, DE, for appellee Snyder.

Argued Feb. 16, 1994.

Before: BECKER, HUTCHINSON ^* and ALITO, Circuit Judges.

Reargued In Banc Nov. 22, 1994.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON ^*, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges.

Argued April 26, 1994.

Before: MANSMANN, COWEN, and LEWIS, Circuit Judges.

Reargued In Banc Nov. 22, 1994.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON ^*, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE & SAROKIN, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

This opinion of the in banc court concerns two appeals from orders of the United States District Court for the District of Delaware that denied habeas corpus petitions filed by two state prisoners, William Henry Flamer and Billie Bailey, who were separately tried for unrelated double homicides and sentenced to death. The appeals were initially heard by two separate panels of this court during roughly the same period. Both prisoners argued, among other things, that their death sentences should be vacated pursuant to Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), because Delaware, in the parlance of the Supreme Court's Eighth Amendment decisions, is a "weighing state" and because the juries in both cases were instructed at the penalty phase regarding certain statutory aggravating factors that were either impermissibly vague or duplicative. Before a panel opinion was filed in either appeal, the court voted to rehear these cases in banc for the purpose of addressing the prisoners' related arguments.

Agreeing with the two district court judges who denied the prisoners' petitions and with the unanimous Supreme Court of Delaware, we now hold that Delaware is not a "weighing state," that Clemons is therefore inapplicable, and that the governing Supreme Court precedent is Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Applying Zant, we hold that the strikingly similar jury instructions and interrogatories used in these two cases did not violate the Eighth Amendment. We also find no merit in Bailey's remaining arguments. In this opinion, we do not address Flamer's many other arguments, but in a separate opinion that is being filed simultaneously with this opinion, the panel that originally heard Flamer's appeal rejects all of Flamer's other arguments. Accordingly, the district court orders in both cases will be affirmed.

I.

A. The background of Flamer's appeal is set out in the panel opinion that is being filed together with this opinion, and therefore a detailed statement is not needed here. Flamer was arrested in 1979 for murdering his elderly aunt and uncle during a robbery at their home. In early 1980, he was tried and convicted on four charges of first-degree murder: two charges of intentionally causing the death of another person, Del.Code Ann. tit. 11 Sec. 636(a)(1), and two charges of felony murder, Del.Code Ann. tit. 11, Sec. 636(a)(2). He was also found guilty of other non-capital offenses. After the jury returned these verdicts, the state sought the imposition of the death penalty.

At the time of Flamer's trial, ¹ Del.Code Ann. tit. 11, Sec. 4209(d)(1) provided in pertinent part as follows:

A sentence of death shall not be imposed unless the jury or judge, where appropriate, finds:

a. Beyond a reasonable doubt at least 1 statutory aggravating circumstance; and

b. Unanimously recommends, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that a sentence of death be imposed.

See Flamer v. State, 490 A.2d 104, 146 (Del.1983). Nineteen statutory aggravating circumstances were listed in Del.Code Ann. tit. 11, Sec. 4209(e)(1). ² In addition, the statute provided that a statutory aggravating circumstance would be deemed to have been established if a defendant was convicted under certain subsections of the Delaware first-degree murder statute, Del.Code Ann. tit. 11, Sec. 636(a)(2)-(7). ³ Thus, under these provisions, a Delaware jury at the penalty phase of a capital case was required to perform two steps. In the first step, which we will hereafter call the "eligibility" step, the jury was required to determine whether at least one statutory aggravating circumstance had been (or was deemed to have been) proven. In the second step, which we will call the "selection" step, the jury was required to weigh all of the pertinent evidence in aggravation (not just the statutory aggravating circumstances) and all of the evidence in mitigation.

In Flamer's case, a statutory aggravating circumstance was deemed to have been established by virtue of his convictions on two charges of felony murder (Del.Code Ann. tit. 11, Sec. 636(a)(2)). See supra page 740. In addition, the prosecution argued that three other statutory aggravating circumstances had been proven, namely, (1) that Flamer's conduct had "resulted in the deaths of 2 or more persons where the deaths [were] a probable consequence of [that] conduct," ⁴ (2) that the murders were "outrageously or wantonly vile, horrible, or inhuman," ⁵ and (3) that the murders were committed "for pecuniary gain." ⁶ The prosecution urged the jury to impose the death sentence based on these circumstances and certain non-statutory aggravating factors, including Flamer's prior criminal record, the age of his two victims, the frailty of his aunt, and Flamer's exploitation of his aunt and uncle's trust in order to gain entrance to their home. Flamer Joint Appendix ("JA") at 1485-86. The jury was given instructions that are discussed in detail in Part III of this opinion. The jury then returned a verdict recommending ⁷ that a sentence of death be imposed. On a special interrogatory form, which is also discussed in detail in Part III, the jury found that all three of the additional statutory aggravating circumstances alleged by the prosecution had been established, and the jury indicated that it had relied on all of the statutory aggravating circumstances in making its recommendation.

Shortly after this verdict was returned, the United States Supreme Court handed down its decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which concerned the Georgia sentencing scheme, upon which, according to the Supreme Court of Delaware, the Delaware scheme "was obviously fashioned." State v. White, 395 A.2d 1082, 1085 (Del.1978). Under the Georgia scheme, like the Delaware scheme, the jury was first required to determine whether at least one statutory aggravating circumstance had been proven. See Zant v. Stephens, 462 U.S. at 871, 103 S.Ct. at 2739-40. If the jury found that such a circumstance had been shown, the jury was then called upon to consider all pertinent aggravating and mitigating evidence in determining whether a death sentence should be imposed. Id. at 871-72, 103 S.Ct. at 2739-40.

In Godfrey, the defendant had killed his wife and mother-in-law "instantly" by shooting them in the head with a shotgun. 446 U.S. at 425, 100 S.Ct. at 1763. In sentencing the defendant to death, the jury found one statutory aggravating factor to have been proven, i.e., that the murders were "outrageously or wantonly vile, horrible, or inhuman, in that [they] involved torture, depravity of mind, or an aggravated battery to the victim." Id. at 426, 100 S.Ct. at 1763. The jury found that this statutory aggravating factor had been proven even though the prosecution had not claimed that the murders had involved "torture" or an "aggravated battery" (other than the homicides themselves) and even though the jury's answers on a sentencing questionnaire indicated that neither torture nor an aggravated battery (other than the murders) had been found. Id.

The Georgia Supreme Court affirmed the death sentence, but the United States Supreme Court reversed. In the plurality opinion that embodied the Court's holding, ⁸ Justice Stewart observed that a valid capital sentencing scheme "must channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.' " Id. at 428, 100 S.Ct. at 1765 (footnotes omitted). The plurality concluded that the challenged statutory aggravating circumstance, as apparently interpreted by the Georgia Supreme Court in Godfrey, did not fulfill this requirement. The plurality wrote:

In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was "outrageously or wantonly vile, horrible and inhuman." There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious...