Gaskins v. McKellar

• Decision Date: 16 November 1990
• Docket Number: No. 89-4011,89-4011
• Citation: 916 F.2d 941
• Parties: Donald Henry GASKINS, Petitioner-Appellant, v. Kenneth D. McKELLAR, Warden, Central Correctional Institution; Attorney General of South Carolina, T. Travis Medlock, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 941

916 F.2d 941

Donald Henry GASKINS, Petitioner-Appellant, v. Kenneth D. McKELLAR, Warden, Central Correctional Institution; Attorney General of South Carolina T. Travis Medlock, Respondents-Appellees.

No. 89-4011.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1990.

Decided Oct. 15, 1990.

Rehearing and Rehearing In Banc

Denied Nov. 16, 1990.

John Henry Blume, III (argued), South Carolina Death Penalty Resource Center, Columbia, S.C., for petitioner-appellant.

Frank Louis Valenta, Jr., Asst. Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., T. Travis Medlock, Atty. Gen. (on brief), Columbia, S.C., for respondents-appellees.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

PHILLIPS, Circuit Judge:

Donald Henry Gaskins, a South Carolina prison inmate under sentence of death for capital murder, appeals the district court's denial of an evidentiary hearing and dismissal of his 28 U.S.C. Sec. 2254 petition for failure to show entitlement to federal collateral relief. We affirm.

I

Gaskins' victim, fellow death row inmate Rudolph Tyner, had been sentenced to death for killing a Mr. and Mrs. Moon during a robbery. Tony Cimo, a stepson of the Moons, seeking to avenge the murders, contacted an acquaintance who put him in touch with Gaskins, who was serving ten life sentences, nine for murder and one for burglary. Telephone toll records produced at trial showed that thereafter Gaskins made a number of collect calls either to Cimo or to Cimo's acquaintance who had made the contact. Some of the recorded calls revealed that, after numerous failed attempts to poison Tyner, Gaskins resolved to kill Tyner by means of an explosive device.

Ultimately, Gaskins succeeded. James Arthur Brown, a prisoner assigned to deliver meals to death-row inmates, testified that on the afternoon of the murder, Gaskins asked Brown to deliver a device to Tyner. Brown described the device as a radio-type speaker built into a plastic cup through which, Gaskins led Brown to believe Tyner could communicate with Gaskins in the adjoining cell rather than having to yell through a common vent. The bottom of the cup had a female-electrical socket adapted for connection to an extension cord. Along with the cup's delivery Brown was to tell Tyner that " 'the wire was in the bottom vent in his cell.' " See State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132, 136 (1985). Presumably, Tyner then found the wire in the common vent and plugged it into the cup-speaker. The cup exploded, blowing off part of Tyner's head and killing him. Brown testified that after the explosion he went to Gaskins' cell and saw Gaskins pulling a wire from the common vent in his own cell.

Gaskins was convicted and sentenced to death by a jury, and his conviction and sentence were affirmed on direct appeal. See State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). Efforts to obtain state post-conviction relief were unavailing. See Gaskins v. State, No. 85-CP-40-3466, Letter Order (S.C. Jan. 7, 1987), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 382 (1987).

This Sec. 2254 petition, raising several claims, followed and was summarily dismissed by the district court. A number of issues and sub-issues are raised on appeal. Of these, one involves the denial of an evidentiary hearing respecting the admission in evidence at sentencing of an earlier confession to other murders, one involves a claimed denial of due process by virtue of trial judge bias, two involve alleged constitutional violations in jury selection, three involve trial court evidentiary rulings allegedly impacting on the trial's fundamental fairness, one involves prosecutorial misconduct, two involve guilt-phase jury instructions, and five involve alleged errors during the trial's sentencing phase.

We address each of these in turn.

II

Gaskins contends that he was erroneously denied an evidentiary hearing to establish his claim that portions of a confession given by him in connection with an earlier, bargained plea of guilty to several unrelated murders were unconstitutionally admitted at the sentencing phase of his Tyner murder trial.

The district court summarily dismissed this invalid-use-of-confession claim on the stated basis that "[t]here is no reason, and no precedent, for arguing the confession's invalidity for the first time during the sentencing phase of a trial for a subsequent crime five years later ... [rather than] in a collateral proceeding directed at those prior crimes." On this appeal, the parties have joined issue on this threshold question of the habeas court's power to entertain this claim. Because it is a difficult issue with broad and unclear implications, ¹ and because there is an alternative basis for upholding the summary dismissal, we decline to rest decision upon the district court's stated basis for dismissing the claim.

To address the alternative basis, it is necessary first to identify the exact nature of Gaskins' constitutional claim. We take it to be that because the earlier confession was coerced, hence involuntarily given, hence unconstitutionally obtained, its use in evidence in the sentencing phase of the later Tyner trial violated Gaskins' eighth amendment right to a "reliab[le] ... determination that death is the appropriate punishment." Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.Ct. 1981, 1986, 100 L.Ed.2d 575 (1988) (death penalty predicated in part on prior conviction vacated because coerced confession violates eighth amendment) (quoting Gardner v. Florida, 430 U.S. 349, 363-64, 97 S.Ct. 1197, 1207-08, 51 L.Ed.2d 393 (1977)).

The claim is rested on the undisputed fact that at Gaskins' sentencing hearing, a state solicitor was allowed, over Gaskins' timely objection, to read portions of the earlier confession in which Gaskins had admitted committing seven other murders. Though in personally arguing his case to the sentencing jury Gaskins specifically conceded that, "I'm guilty of some of [the murders], yes. I do not deny that," J.A. at 593, his contention apparently now is that he was coerced into confessing to more than he later conceded to the sentencing jury. From this, the argument runs that the sentencing jury's determination could be shown to be constitutionally unreliable if, as he claimed but was not allowed to establish by evidence, the jury thought him guilty of all the seven murders rather than the "some" lesser number that he specifically conceded. Given this possibility, Gaskins contends that the district court erred in failing to give him an evidentiary hearing to attempt to establish his claim of constitutional unreliability.

This argument fails because of the claim's facial lack of merit. Where the allegations in a habeas petition are palpably incredible, the petition properly may be dismissed without affording any evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 1629-30, 52 L.Ed.2d 136 (1977). Here the ultimate allegation, on which habeas relief depended, was that the sentencing jury's misperception of the exact number of unrelated murders that Gaskins had committed made its imposition of the death penalty constitutionally unreliable. Under the circumstances, the district court properly could have viewed this as an allegation incredible on its face, and on that basis summarily dismissed the claim. Even assuming the truth of the predicate allegation--that the earlier confession had admitted more murders than Gaskins actually had committed--it defies belief that a jury to which he had just renewed his confession to at least an indefinite "some" of the seven earlier confessed would have acted differently (more reliably) had it been aware of the exact mathematical disparity between those actually committed and those confessed.

We might also affirm the summary dismissal of this claim on the alternative basis of a roughly parallel harmless error analysis. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (harmless error analysis appropriate in review of capital sentencing proceeding). Here the record shows that the state sentencing jury found two aggravating factors: prior murder convictions and murder for hire. It also reveals that the jury had before it, in addition to the earlier confessed murders, still another prior conviction of murder by jury verdict. Both this latter conviction and the murder-for-hire finding stand unchallenged. ² As earlier indicated, the most favorable result that could be achieved by an evidentiary hearing to challenge the sentencing jury's finding of prior murders as an aggravator would be a demonstration that the jury erroneously believed that Gaskins had committed seven confessed murders, when he had only committed "some" number less than that. When it is recalled that the jury also had before it still another unchallenged murder conviction by jury trial, it is obvious that any error in denying an evidentiary hearing with such a limited potential was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

III

We next consider the district court's dismissal of Gaskins' claim that the state trial judge's demonstrated bias and lack of impartiality made his state trial fundamentally unfair and therefore violated his constitutional right to due process.

Fourteenth amendment due process requires, at a minimum, an impartial judge and jury. See Anderson v. Warden, Md. Penitentiary, 696 F.2d 296, 299 (4th Cir.1982). Gaskins makes a number of arguments supporting his contention that the state trial judge demonstrably was lacking in the requisite degree of impartiality to ensure due process. First, he points to twenty-two instances where the state trial judge allegedly improperly questioned witnesses. Second, he points to a newspaper article published after the guilt phase of...