Moore v. Zant

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before HILL, KRAVITCH and HENDERSON; JAMES C. HILL; KRAVITCH; Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK
• Citation: Moore v. Zant, 722 F.2d 640 (11th Cir. 1983)
• Decision Date: 20 December 1983
• Docket Number: No. 82-8683,82-8683
• Parties: Carzell MOORE, Plaintiff-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Defendant-Appellee.

Page 640

722 F.2d 640

Carzell MOORE, Plaintiff-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Defendant-Appellee.

No. 82-8683.

United States Court of Appeals Eleventh Circuit.

Dec. 20, 1983.

Opinion on Granting of Rehearing En Banc March 15, 1984.

Robert E. Morin, Stephen B. Bright, Atlanta, Ga., for plaintiff-appellant.

Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

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

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Carzell Moore was charged in a two count indictment with the rape and murder of Teresa Allen. A jury found him guilty on both counts and sentenced him to death on both counts. After exhausting his state remedies, Moore filed the present habeas corpus action in federal district court. The district court denied relief without holding an evidentiary hearing. On appeal, Moore raises several issues, none of which contain merit. We therefore affirm.

I. FACTS AND PROCEDURAL HISTORY

The evidence adduced at trial showed that on December 12, 1976, eighteen-year-old Teresa Allen arrived at work at the Majik Market convenience store in Cochran, Georgia. Shortly before 7:00 p.m. the store was found to be empty; the cash register and safe were open and empty; and $466 was missing from the store. Ms. Allen was missing, and her automobile was gone. Two days later, Teresa Allen's body was discovered in Monroe County, Georgia. She had been raped and shot through the stomach and the head. Footprints, two 30.06 cartridge hulls, a 30.06 metal jacket of a bullet, tire tracks, and a nylon stocking were found near the body.

Three witnesses testified that on the day of the robbery, they dropped off Moore and Roosevelt Green at Moore's house. Moore's house was approximately four blocks from the Majik Market. On the morning following the robbery, Green arrived at the home of a friend driving an automobile similar to Ms. Allen's car. In his possession were a lot of change, a roll of "bills," "bank bags," (all of which were consistent with the items taken from the Majik Market), and a 30.06 rifle. Approximately one month later, Green was arrested in connection with a separate robbery. He was driving Teresa Allen's automobile.

In early January 1977, Thomas Pasby accompanied Moore to examine an automobile that Moore intended to purchase. During their discussion, Moore told Pasby that he had killed someone and that he and Green had robbed the Majik Market in Cochran and forcibly abducted Teresa Allen. Moore related that after leaving the store, Green and he had each raped Ms. Allen. Moore had then told Ms. Allen to exit the car and told Green to drive to a gas station to purchase gasoline. Moore related to Pasby that despite Ms. Allen's protestation and begging for mercy, he had killed her by shooting her once in the stomach and in an attempt to make identification difficult, again in the face. Ms. Allen's body was found in the condition described by Moore to Pasby. Pasby also testified that when Moore was informed of Green's arrest, he stated "Damn, I told Green to get rid of the car and that rifle."

The jury convicted Moore of both rape and murder and sentenced him to death on both counts. In recommending the death penalty, the jury found two statutory aggravating circumstances; (1) that each offense had been committed while the offender was engaged in the commission of additional capital felonies, O.C.G.A. Sec. 17-10-30(b)(2) (1982) (formerly Ga.Code Ann. Sec. 27-2534.1(b)(2)); and (2) that each offense was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim and depravity of mind on the part of the defendant. O.C.G.A Sec. 17-10-30(b)(7) (1982) (formerly Ga.Code Ann. Sec. 27-2534.1(b)(7)).

On direct appeal, the Georgia Supreme Court affirmed the convictions and sentence, Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978), and the United States Supreme Court denied certiorari, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978). Moore then filed a habeas corpus petition in state court. After conducting an evidentiary hearing, the state court denied relief. The United States Supreme Court denied certiorari. Moore v. Zant, 446 U.S. 947, 100 S.Ct. 2176, 64 L.Ed.2d 803 (1980). Moore then filed a second habeas petition in state court in an effort to exhaust those issues which he had failed to raise in any of the prior proceedings. The state court dismissed the petition without further consideration. Moore then filed the present habeas corpus action in federal district court. The district court adopted the magistrate's report and recommendation without holding an evidentiary hearing and denied relief. This appeal followed.

II. SENTENCING PROCEEDING

Moore argues that his sentencing proceeding resulted in unguided and unchecked jury discretion in violation of the eighth and fourteenth amendments. See Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 2741-44, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 110-15, 102 S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (Stewart, J., joined by Blackmun, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (Stewart, J., joined by Powell and Stevens, JJ.). Moore bases this assertion on three contentions: first, he contends that the state improperly introduced evidence of nonstatutory aggravating circumstances; second, Moore argues that the trial judge incorrectly instructed the jury; and third, Moore asserts that the prosecution's closing argument improperly focused the jury's attention on arbitrary factors.

A. Evidence of Nonstatutory Aggravating Factors

Moore argues that the introduction of certain evidence at the sentencing hearing unconstitutionally allowed the sentencing jury to consider nonstatutory aggravating circumstances in imposing the death sentence. This evidence included evidence of previous convictions for two unrelated burglaries and grand larceny and for possession of marijuana. Transcript at 799. In response to testimony by Moore and his mother regarding his upbringing and a plea for mercy, the prosecution called Mr. Joseph Allen, the victim's father. Allen testified regarding certain positive aspects of the victim's life--that she had been an honor high school graduate, had received a college scholarship, had been working her way through school, and had wanted to be a nurse. Transcript at 799-808.

As a matter of federal constitutional law, the trial judge acted properly in allowing introduction of the prior convictions. In examining the Georgia capital punishment system in Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court held that once the sentencing authority has found at least one valid statutory aggravating circumstance making the defendant eligible for the death penalty it may consider

other possible aggravating factors in the process of selecting, from among [the eligible] class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Id. at 2743-44 (emphasis in original) (footnote omitted). The Court also held that the prosecution may present any evidence in extenuation, mitigation, or aggravation of punishment, provided that such evidence is not "constitutionally impermissible" or "totally irrelevant to the sentencing process." Id. at 2747; see Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 3396-98, 77 L.Ed.2d 1090 (1983); O.C.G.A. Sec. 17-10-2(a) (1982) (formerly Ga.Code Ann. Sec. 27-2503).

The sentencing jury in this case found the presence of two statutory aggravating factors making Moore eligible for the death sentence. These factors were (1) that each offense had been committed while Moore was engaged in the commission of another capital felony, O.C.G.A. Sec. 17-10-30(b)(2) (1982), and (2) that each offense was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim and depravity of mind, O.C.G.A. Sec. 17-10-30(b)(7) (1982). The trial judge could therefore properly admit any "additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior conviction," O.C.G.A. Sec. 17-10-2(a) (1982), provided that the evidence bore on "defendant's prior record, or the circumstances of his offense," Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 973 (1978) (plurality opinion). We find no constitutional error in the trial judge's admission of Moore's prior convictions for burglary, grand larceny, and possession of marijuana.

Petitioner's argument regarding the admissibility of Joseph Allen's testimony presents a more difficult question. Mr. Allen testified that Teresa had been an honor graduate from high school, had received a scholarship to college, had been working her way through school, and had wanted to be a nurse. Moore asserts that Mr. Allen's testimony was introduced to show the effect of the crime on the victim. ¹

In determining whether admissibility of Mr. Allen's testimony affected petitioner's due process rights, we are mindful of the Supreme Court's admonition in Barefoot v. Estelle, 103 S.Ct. at 3391, that

[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

Mr. Allen's testimony was clearly relevant to mitigation. On direct appeal, the Georgia Supreme Court held that the evidence related to rebuttal of the defense's contention during the guilt-determination phase that the victim had been an accomplice in the robbery....