Griffin v. Dugger

• Decision Date: 19 May 1989
• Docket Number: No. 84-3196,84-3196
• Citation: 874 F.2d 1397
• Parties: Kenneth GRIFFIN, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1397

874 F.2d 1397

Kenneth GRIFFIN, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.

No. 84-3196.

United States Court of Appeals Eleventh Circuit.

May 19, 1989.

Rehearing and Rehearing in Banc Denied July 21, 1989.

Patterson, Bleknap, Webb, & Tyler, Fred Davis, Robert LoBue, Donald Baer, Douglas B. Maynard, New York City, John D. Middleton, Atty., Gainesville, Fla., for petitioner-appellant.

Gary L. Printy, Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

By applying the Supreme Court's holdings in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), we affirm the district court's denial of the petitioner's petition for writ of habeas corpus.

The facts and procedural history in this capital case are found in Griffin v. Wainwright, 760 F.2d 1505 (11th Cir.1985), cert.

granted and judgment vacated, 476 U.S. 1112, 106 S.Ct. 1964, 90 L.Ed.2d 650, cert. denied, 476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986). We remanded Griffin's unconstitutional application of the death penalty claim to the district court for consideration in light of our opinions in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (in banc), cert. granted in part, 478 U.S. 1019, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986), aff'd, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), and Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (in banc), on remand, 785 F.2d 1467 (11th Cir.1986). The Supreme Court granted Griffin's subsequent petition for a writ of certiorari and remanded for further consideration in light of Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). Griffin v. Wainwright, 476 U.S. 1112, 106 S.Ct. 1964, 90 L.Ed.2d 650 (1986).

Following the Supreme Court's remand, we directed the parties to provide supplemental briefing on the following issues: (1) what action should this court take in light of the Supreme Court's remand for further consideration in light of Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986); (2) of what relevance is Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987); and (3) what action should this court take in light of McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

The parties agree and we find that the harmless error rule of Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) has no application to this case. Accordingly, this issue will not be discussed further.

I. The Cabana Issue

Griffin contends that Cabana requires Florida's state judicial system to determine whether his culpability is commensurate with the imposition of the death penalty. He argues that the state courts have not made a sufficient determination of his culpability. Griffin claims that the state trial court instructed the jury on the elements of both premeditated murder and first degree murder, but that the jury returned only a general verdict of guilty. Thus, Griffin asserts that the jury may have convicted him without finding that he killed the victims or intended their deaths because the instruction on felony murder stated that he could be found guilty even though no premeditated design or intent to kill existed. Additionally, Griffin argues that none of the various state court opinions in this case make the necessary Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) finding. ¹

The state contends that the state trial judge's sentencing order found Griffin to be the actual killer of the victims. Thus, the findings satisfy Enmund. The state emphasizes the district court's finding, based on the state trial proceedings, that Griffin acted alone in killing the victims. ²

Cabana v. Bullock requires that the federal habeas corpus court examine the entire course of the state-court proceedings to determine whether, at some point in the state's process, the requisite finding as to the petitioner's culpability has been made. Cabana, 474 U.S. at 387-88, 106 S.Ct. at 697. If such a finding has been made, it is entitled to a presumption of correctness in federal courts, pursuant to 28 U.S.C.A. Sec. 2254(d). Cabana at 388, 106 S.Ct. at 698.

Cabana clarified Enmund. In Enmund, the Supreme Court forbade the imposition of the death penalty on "one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, or intend that a killing take place or that lethal force will be employed." Enmund, 458 U.S. at 797, 102 S.Ct. at 3376. Cabana explains that Enmund protects defendants who, although guilty of capital murder as defined by state law, may not lawfully be sentenced to death because they did not kill, attempt to kill, or intend to kill. Cabana, 474 U.S. at 385, 106 S.Ct. at 696.

The Cabana Court delineated "the appropriate course of action for a federal court faced with an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria." Cabana, 474 U.S. at 390, 106 S.Ct. at 699. Although recognizing that federal and state courts are equally competent to make the factual determination of whether a defendant in fact killed, attempted to kill, or intended to kill, the Cabana Court concluded that the desirable alternative is to allow the state's judicial system to make this determination in the first instance. Cabana at 390, 106 S.Ct. at 699. The Court reasoned:

First, to the extent that Enmund recognizes that a defendant has a right not to face the death penalty absent a particular factual predicate, it also implies that the State's judicial process leading to the imposition of the death penalty must at some point provide for a finding of that factual predicate.... Second, the State itself has 'a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts.' [Citations omitted.]

Cabana 474 U.S. at 390-91, 106 S.Ct. at 699.

We hold that the Florida judicial system has satisfied Cabana in this case. The record shows that the appropriate Enmund findings were made in Florida's judicial system. The state trial court made a finding that Griffin played a major role in the capital felony, and was, in fact, the actual killer of one of the victims. ³ Because these findings by the state trial court satisfy Enmund, Griffin has no valid Cabana claim.

II. The McCleskey Issue

Griffin contends that we should remand his case to the district court for an evidentiary hearing on whether his death sentence was unconstitutionally based on the race of his victims. Griffin argues that the consideration of racial factors in his case violated the due process and equal protection clauses of the fourteenth amendment and the eighth amendment because Griffin claims that the prosecutor improperly addressed the race of the victims in his case, and in other death penalty cases, and that statistical studies demonstrate a correlation between the imposition of the death sentence and the victim's race. Taken together, Griffin argues that these two forms of evidence demonstrate that the death sentence in his case is unconstitutional.

his death sentence was imposed in an arbitrary, capricious, and irrational manner. Griffin asserts that his claims are based on the individual circumstances of his case and not solely on statistical submissions like those addressed in McCleskey.

A. The Prosecutor's Statements

Griffin argues that the prosecutor improperly made repeated references to the race of his victims and that these remarks served no justifiable purpose because the race of the victims was never an issue at trial. Griffin claims that if given the opportunity to produce evidence at a hearing, he will establish a pattern of behavior by the prosecutor relating to himself and others where the prosecutor intentionally referred to the race of the victims.

Citing Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), Griffin contends that any unnecessary risk of racial prejudice in a death penalty proceeding is unconstitutional. Turner, however, is distinguishable from this case. In Turner, the Supreme Court vacated Turner's death sentence because the trial judge failed to question prospective jurors on racial prejudice, and thereby failed to adequately protect Turner's constitutional right to an impartial jury. In this case, Griffin merely asserts that the race of his victims may have influenced the jury to impose a death sentence. Griffin makes no claim that the state trial judge failed to protect his right to trial by an impartial jury.

Griffin also cites Robinson v. State, 520 So.2d 1 (Fla.1988) to argue that the heightened risk created whenever issues of race are injected into a capital proceeding require new sentencing proceedings. In Robinson, the prosecutor cross-examined Robinson's medical expert and inquired into the race of Robinson's victims from previous crimes during the penalty stage of the trial. The Florida Supreme Court found:

The prosecutor's comments and questions about the race of the victims of prior crimes committed by appellant easily could have aroused bias and prejudice on the part of the jury. That such an appeal was improper cannot be questioned. The questioning and resultant testimony had no bearing on any aggravating or mitigating factors. [Footnote omitted.]

Robinson, 520 So.2d at 7. The Florida Supreme Court found that the risk that issues of race may have influenced the jury's decision was unacceptable, reversed the death sentence, and remanded the case to the trial court for a new sentencing hearing.

Because we cannot say beyond a reasonable doubt that the jury's recommendation was not motivated in part by racial considerations, we cannot deem the error...