Messer v. State of Fla.

• Decision Date: 30 November 1987
• Docket Number: No. 85-3124,85-3124
• Citation: 834 F.2d 890
• Parties: Charles Dwight MESSER, Petitioner-Appellee, Cross-Appellant, v. STATE OF FLORIDA, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 890

834 F.2d 890

Charles Dwight MESSER, Petitioner-Appellee, Cross-Appellant, v. STATE OF FLORIDA, Respondent-Appellant, Cross-Appellee.

No. 85-3124.

United States Court of Appeals, Eleventh Circuit.

Nov. 30, 1987.

Rehearing Denied Jan. 5, 1988.

Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellant/cross appellee.

Louie Dugas, Orange, Tex., W. Gregory Miller, Cornelius & Collins, Nashville, Tenn., for petitioner-appellee/cross appellant.

Appeals from the United States District Court for the Northern District of Florida.

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Charles Messer was convicted of first degree murder and robbery in December 1974. The jury returned an advisory sentence of death and in January 1975 the trial judge imposed a sentence of death by electrocution. The facts underlying Messer's convictions and sentence are contained in the opinion of the Florida Supreme Court, Messer v. State, 330 So.2d 137 (Fla.1976), which affirmed his conviction for first degree murder and robbery, but vacated the sentence and remanded the case to the trial court for a new sentencing hearing. The second jury returned an advisory sentence of death in May 1976, and in June 1976 the trial judge again imposed a sentence of death by electrocution. Messer appealed. After a series of proceedings regarding possible due process violations pointed out in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), see Messer v. State, 384 So.2d 644 (Fla.1980), the Florida Supreme Court affirmed the sentence of death. Messer v. State, 403 So.2d 341 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982). In 1983, Messer filed a motion for post-conviction relief under the Florida Rules of Criminal Procedure. A Florida circuit court denied relief and the Florida Supreme Court affirmed. Messer v. State, 439 So.2d 875 (Fla.1983). The Florida Supreme Court also denied Messer's petition for a writ of habeas corpus. Id. at 877-78.

Messer filed the instant petition for writ of habeas corpus in federal district court on October 13, 1983. On January 2, 1985, the district court granted the writ of habeas corpus and ordered a new sentencing hearing on the ground that the state trial court judge had violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) by refusing to consider nonstatutory mitigating evidence when imposing the death sentence. The state appeals, and we now affirm the district court on this claim. The district court concluded that a procedural default barred Messer's Lockett claim to the effect that the jury was instructed not to consider nonstatutory mitigating circumstances. Messer cross-appeals with respect to this claim. Since the district court's decision, the Florida Supreme Court has made it clear that Florida courts will no longer apply the procedural default rule to bar such a Lockett claim. For this reason, and because Messer's Lockett claim that the jury was limited to statutory mitigating evidence has merit, we reverse the district court to this extent. The district court denied relief as to the other challenges advanced by Messer. Messer also cross-appeals as to these other claims on which relief was not granted. We affirm as to these other claims.

The issues we consider on appeal are: (1) the Lockett claims, i.e., whether in 1976 the jury was instructed not to consider, and whether the judge failed to consider, nonstatutory mitigating evidence, and whether Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars consideration of this issue; (2) whether Messer received effective assistance of counsel at the guilt/innocence phase of his 1974 trial; and (3) whether persons who expressed reservations about the death penalty were improperly excluded from the 1974 jury.

I. LIMITATION ON JUDGE'S AND JURY'S CONSIDERATION OF NONSTATUTORY MITIGATING CIRCUMSTANCES

It is well established that a sentencing body must not be limited in its consideration of mitigating circumstances. Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (en banc). This principle applies both to the Florida sentencing jury and the sentencing judge. Riley v. Wainwright, 517 So.2d 656 (Fla.1987); see also Magill v. Dugger, 824 F.2d 879 (11th Cir.1987).

The state argues that Messer's Lockett claims (both with respect to the judge and jury) are barred by a state procedural default and the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, recent decisions of the Florida Supreme Court make it clear that Florida courts will no longer apply the procedural default rule to bar a Lockett claim such as the instant one. In Thompson v. Dugger, 515 So.2d 173 (Fla. 1987), the Florida Supreme Court held: "We find that the United States Supreme Court's consideration of Florida's capital sentencing statute in its Hitchcock opinion represents a sufficient change in the law that potentially affects a class of petitioners, including Thompson, to defeat the claim of a procedural default." See also Riley v. Wainwright, supra. When the state court has declined to rely upon a procedural default, Campbell v. Wainwright, 738 F.2d 1573 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106 S.Ct. 1652, 90 L.Ed.2d 195 (1986), or when its procedural default rule has been only sporadically invoked, Spencer v. Kemp, 781 F.2d 1458 (11th Cir.1986) (en banc), the procedural default no longer bars consideration of the issue in federal court. In light of the recent decisions of the Florida Supreme Court, we reject the state's argument that Messer's Lockett claims are procedurally barred, and turn to a consideration of the merits of the issue. Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987)

On the merits, we conclude that this case is controlled by Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). There, the defense attorney had introduced some nonstatutory mitigating evidence, and although his stress in closing argument was on statutory mitigating circumstances, he also referred to several nonstatutory mitigating factors and invited the jury to consider "the whole ball of wax." By contrast, the prosecutor's closing argument told the jury to consider the mitigating circumstances by number, and then went down the statutory list one by one. In addition, the trial judge instructed the jury that " '[t]he mitigating circumstances you may consider shall be the following ...' (listing the statutory mitigating circumstances)." Id. 107 S.Ct. at 1824. Imposing the death sentence, the sentencing judge found that "there [were] insufficient mitigating circumstances as enumerated in Florida Statute 921.141(6) to outweigh the aggravating circumstances." Id. (emphasis in the Supreme Court text which quotes the trial record). On these facts, the Supreme Court concluded that it was clear that "the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances." Id. The Court concluded that there was a Lockett violation and granted the writ of habeas corpus.

In the instant case, it is even clearer than in Hitchcock that the jury was instructed not to consider, and that the judge did not consider, nonstatutory mitigating circumstances.

At the 1976 resentencing, the prosecutor's opening statement told the jury that the seven statutory mitigating circumstances were the only ones:

In reaching that decision, His Honor will instruct you on the law and will instruct you on mitigating and aggravating circumstances. There are eight aggravating circumstances. There are seven mitigating circumstances--under the law. I suggest to you in this case there will be four--at least four aggravating circumstances. There will be no mitigating circumstances.

1976 Record at 127.

The following colloquy occurred in the presence of the jury as the defense was trying to introduce psychological evidence that Messer's heavy drinking and use of drugs would exacerbate his mental problems:

[STATE]: Your Honor, if I may object--this is all very interesting, but it has no relevance to any mitigating circumstances.

JUDGE: What is the relevance of this testimony to the mitigating circumstance?

[MESSER'S COUNSEL]: Your Honor, I believe the witness has already testified to her findings, having indicated the weak emotional control of this defendant and his responsiveness to stressful situations and how personality and personal immaturity and his cerebral dysfunctioning is exacerbated by ...

JUDGE: Which one are you fitting it under "A", "B", or "C"?

[MESSER'S COUNSEL]: I would be relating specifically, Your Honor, to Section 921, sub-section "E" of the mitigating circumstances.

JUDGE: Acting under extreme duress?

[MESSER'S COUNSEL]: Pardon me, I was looking for "emotional distress." I think it relates to a number of these items, Your Honor, particularly "B".

The felony was under the influence of extreme mental or emotional distress.

Id. at 331-32. This colloquy indicates that the judge was laboring under the misunderstanding that only statutory mitigating circumstances were relevant. The colloquy is also evidence that the jury was led to believe the same thing.

Like the prosecutor in Hitchcock, the state attorney here discussed, one by one, the statutory list of mitigating circumstances, clearly implying to the jury that the statutory list was exclusive. The prosecutor here went further, however, and, after reviewing each factor on the statutory list, told the jury: "[a]nd that's all the court is going to instruct you on. There are no other mitigating circumstances." Id. at 409. Moreover, the prosecutor...