Hill v. Black

• Decision Date: 12 December 1989
• Docket Number: No. 87-4922,87-4922
• Citation: 891 F.2d 89
• Parties: Alvin HILL, Petitioner-Appellee Cross-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 89

891 F.2d 89

Alvin HILL, Petitioner-Appellee Cross-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants Cross-Appellees.

No. 87-4922.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1989.

Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellants cross-appellees.

James P. Kreindler, Daniel M. Kolko, New York City, Percy Stanfield, Jackson, Miss., James W. Craig, Miss., Capital Defense Res., Jackson, Miss., for petitioner-appellee cross-appellant.

Appeals from the United States District Court for the Northern District of Mississippi. (Opinion 10/10/89, 5th Cir.1989, 887 F.2d 513)

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Before CLARK, Chief Judge, POLITZ and GARWOOD, Circuit Judges.

PER CURIAM:

On petition for panel rehearing, Hill raises an argument which was directed to this court in a supplement to his appellate brief. Our previous opinion did not address the issue. Because Hill's claim is at least colorable, we now supplement our previous opinion.

In the sentencing phase of Hill's trial for capital murder, the jury was instructed as follows:

Consider the following elements of aggravation in determining whether the death penalty should be imposed:

1.) The capital offense was committed while the Defendant was engaged in the commission of robbery.

2.) The capital offense was committed for pecuniary gain.

3.) The Defendant was previously convicted of a felony involving the use or threat of violence to the person.

4.) The capital offense was especially heinous, atrocious or cruel.

In sentencing Hill to death, the jury expressly found each of these aggravating factors to be present. Hill now contends that because the Supreme Court held in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), that the "especially heinous, atrocious or cruel" aggravating circumstance language is unconstitutionally vague and because his jury was allowed to balance this circumstance against the mitigating circumstances, his death sentence should be reversed. We disagree.

The Mississippi death penalty statute requires that a jury find beyond a reasonable doubt at least one statutory aggravating circumstance before it can impose the death penalty. MISS.CODE ANN. § 99-19-101 (Supp.1989). The Mississippi Supreme Court has determined that a death penalty which is imposed after a jury finding of multiple aggravating circumstances is not automatically invalidated when one of those aggravating circumstances is later abrogated. The sentence remains intact as long as at least one aggravating circumstance "was properly presented for the jury's consideration." Edwards v. State, 441 So.2d 84, 92 (Miss.1983). This construction of the Mississippi statute differs from that given the Oklahoma statute by its Supreme Court. See Maynard v. Cartwright, 108 S.Ct. at 1860, Edwards v. Scroggy, 849 F.2d 204, 211 n. 7 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1328, 103 L.Ed.2d 597 (1989)..

In Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), the Supreme Court held that the facts of a case may require reversal of the death penalty when an aggravating circumstance is invalidated even though other, permissible aggravating circumstances were found. In Johnson the defendant was convicted of capital murder and sentenced to death. The jury based the sentence on the existence of three aggravating circumstances, one of which was a prior violent felony conviction in New York. When the New York conviction was subsequently reversed, Johnson applied for post-conviction review. The Mississippi Supreme Court denied Johnson's motion. On certiorari, the State argued that even if the New York conviction was now an inadequate basis for the imposition of the death penalty, the finding by the jury of the other two aggravating circumstances supported the sentence. The Supreme Court reversed, stating: "the error here extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible. Here the jury was allowed to consider evidence that has been revealed to be materially inaccurate [an authenticated copy of Johnson's New York commitment order for the previous felony]." Johnson, 108 S.Ct. at 1989.

Subsequent to Johnson, this court decided Stringer v. Jackson, 862 F.2d 1108 (5th Cir.1988). In that case we stated The Supreme Court, in Maynard, determined that the "especially heinous, atrocious, or cruel" aggravating circumstance, when submitted for the jury's consideration without a limiting instruction, is unconstitutionally overbroad. The facts of this case do not, however, require that Stringer's death sentence be vacated. The jury found that two other aggravating circumstances existed as well. This satisfies any constitutional concerns and adequately channels the jury's discretion. When the jury's discretion in sentencing is narrowed by its finding of appropriate aggravating factors, there should be no objection to the jury considering the heinousness of the crime--even though heinousness, as defined or even under the facts, would not alone have narrowed the jury's discretion so as to satisfy Eighth Amendment requirements. Contrast the case of Johnson v. Mississippi, where evidence supporting the invalidated aggravating circumstance was inadmissible and prejudicial.

Stringer, 862 F.2d at 1114-15 (citations omitted). Stringer makes clear that the presentation of proof of the manner in which a murder is committed does not detract from the adequate guidance and direction given to the...