Ross v. Kemp

• Decision Date: 25 March 1985
• Docket Number: No. 82-8413,82-8413
• Citation: 756 F.2d 1483
• Parties: Willie X. ROSS, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1483

756 F.2d 1483

Willie X. ROSS, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.

No. 82-8413.

United States Court of Appeals,

Eleventh Circuit.

March 25, 1985.

John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, Deborah Fins, James S. Liebman, Deval L. Patrick, New York City, Timothy K. Ford, Seattle, Wash., for petitioner-appellant.

Jan Hildebrand, Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

On March 3, 1974, after a jury trial in the Superior Court of Colquitt County, Georgia, appellant Willie X. Ross was convicted of armed robbery, kidnapping and murder. Sentences of life imprisonment, twenty years and the death penalty were imposed, respectively. The convictions and sentences were affirmed by the Georgia Supreme Court. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). Ross petitioned for state habeas corpus relief, but, after a hearing, relief was denied. That decision was affirmed in Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978). Meanwhile, Ross filed a petition for declaratory judgment in the superior court, alleging that his trial jury was influenced by doubt as to the constitutional validity of the Georgia death penalty statute. The petition for declaratory judgment was denied, and the Georgia Supreme Court affirmed. Ross v. State, 238 Ga. 445, 233 S.E.2d 381 (1977).

Ross then filed a petition for federal habeas corpus relief in the United States District Court for the Southern District of Georgia. The matter was consolidated with two other cases in which the death penalty had been imposed, Mitchell v. Hopper, CV No. 478-132, and Spencer v. Zant, CV No. 179-247. The three petitions were denied. Mitchell v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982); Ross v. Hopper, 538 F.Supp. 105 (S.D.Ga.1982). On appeal, a panel of this court affirmed in part the denial of Ross' petition, but reversed and remanded for further evidentiary development on the issue of whether the Georgia death penalty statute was being applied arbitrarily and discriminatorily to blacks. Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983). A majority of this court subsequently voted to rehear Ross' appeal en banc, and the panel opinion was vacated. Ross v. Hopper, 729 F.2d 1293 (11th Cir.1984). On rehearing en banc, we again affirm in part the district court's denial of Ross' petition, but we remand to the panel for further consideration of Ross' claim relating to the jury composition, in light of Ross' motion to supplement the record.

I. The Facts ¹

On August 23, 1973, appellant Willie X. Ross, Freddie Lee King, Rudy Turner, and Theodore Ross, appellant's brother, drove from Madison, Florida to the Clover Farms Highway Grocery at Moultrie, Georgia. When the store closed for the evening they followed the individual who closed the store to a nearby house in which the J.R. Stanford family lived. They then drove back to Madison.

The next evening, August 24, the four men returned to the Stanford home. Wearing stocking masks over their faces, they entered the home, held the family at gunpoint and went through the house collecting various valuables, including Mr. Stanford's .32 caliber pistol. Upon demanding the money from the grocery store, they were told it was in the possession of Robert Lee, who lived nearby, and that Wendell Norman, Stanford's son-in-law and Lee's partner in the grocery store, would return to the Stanford home later that night. When Norman arrived, he was ordered by the intruders to take Theodore Ross and King to get the money. Stanford's fourteen-year-old stepdaughter was taken also as hostage. Appellant Willie Ross and Turner remained at the Stanford home.

Theodore Ross and King, with Norman and the stepdaughter, drove to Lee's home, entered and proceeded to Lee's bedroom. When Norman awoke Lee and explained why they were there, Lee reached for his pistol and fired into the hallway. Either Theodore Ross or King returned fire and grabbed one of Lee's small sons, threatening to kill the child if Lee did not stop firing and turn over the money. Theodore Ross and King were given the cash box containing approximately $20,000 in cash and checks, and fled on foot. Norman then contacted the police.

Lieutenant Tommie Meredith of the Moultrie Police Department responded to the call and drove to the Stanford home, closely followed in a separate car by another officer. Members of the Stanford family testified that Meredith, armed with a shotgun, entered through the kitchen door confronting Turner, who, armed with a .22 caliber pistol, was crouching at the opposite end of a table in the adjoining dining room. Ross was seen standing against a wall near a refrigerator in the dining room and armed with Stanford's .32 caliber pistol. Turner, stating, "I've got them right here," motioned for one of the family members to come toward him. The Stanfords, however, fled to a bedroom and closed the door. Immediately thereafter, both Mr. Stanford and the other police officer heard an exchange of gunfire. The officer, approaching the house from outside, saw and fired at two persons running from the house through the back yard.

The officer found Lieutenant Meredith's body on the kitchen floor, shot through the chest at point-blank range. The pistol last seen in Turner's possession was discovered in the back yard, fully loaded, the cartridge in the firing chamber bearing an indentation indicating the pistol had misfired. The .32 caliber pistol belonging to Stanford and last seen in Willie Ross' hand seconds before the shooting, was found near the back-yard fence, one round having been fired from it. A microanalyst for the State Crime Laboratory identified the bullet removed from Meredith's body as having been fired from the .32 caliber pistol.

Theodore Ross testified at appellant's trial that appellant had told him that he (Willie Ross) thought he had shot a policeman and that Turner's gun had misfired. Bobby Gamble, another prosecution witness, who had driven appellant back to Florida in the days subsequent to the incident, also testified that appellant had told him he thought he had killed a policeman.

Appellant was apprehended in New York several months after the incident, extradited to Georgia, and indicted for kidnapping, armed robbery, and murder. Appellant was convicted on all counts, and was sentenced to death for the murder of Lieutenant Meredith.

II. The Claims

Appellant challenges the district court's resolution of six of the issues raised in his federal habeas corpus petition. Appellant argues that (1) under the authority of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the death penalty constitutionally may not be imposed when appellant was convicted of felony murder and there was no specific finding by the jury that he killed, attempted to kill, or intended to kill; (2) the precepts of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated by the state's knowing use of perjured testimony of appellant's brother Theodore that appellant had told Theodore he had shot a policeman; (3) the precepts of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), were violated by the state's failure to disclose evidence contradicting Theodore's statement that no promises had been made to him in exchange for his testimony against appellant; (4) the district court erroneously failed to hold an evidentiary hearing on appellant's challenge to the composition of the grand and traverse juries; ² (5) an evidentiary hearing also was required in regard to appellant's claim that the Georgia death penalty statute is applied in an arbitrary and racially discriminatory manner and with inadequate appellate review; and (6) the district court should have conducted an evidentiary hearing on appellant's claim that failure to grant a change of venue due to prejudicial pretrial publicity deprived him of a fair trial. In addition, appellant contends for the first time on appeal that the charge to the jury in the sentencing phase of the trial did not adequately explain the function of mitigating circumstances, in violation of Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); and Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983).

On rehearing en banc, we agree with the panel's disposition of appellant's Brady, Giglio, and change of venue claims, along with appellant's challenge to the jury charge in the sentencing phase of the trial. We therefore reinstate sections II.B., II.C., II.F., and II.G. of the panel opinion. See Ross v. Hopper, 716 F.2d at 1533-37, 1539-42. We proceed to discuss appellant's remaining claims.

A. The Enmund Claim

Appellant's first remaining claim is based on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the Supreme Court held that the eighth amendment barred the imposition of the death penalty "in the absence of proof that [the defendant] killed or attempted to kill, and regardless of whether [he] intended or contemplated that life be taken...." Id. AT 801, 102 S.Ct. at 3379. Appellant contends that Enmund 's holding was violated in his case because the jury did not make a specific finding that he either murdered or intended to murder Lieutenant Meredith, and, therefore, he is entitled to a new sentencing hearing. Because we do not read Enmund as constitutionally requiring that a jury expressly make such a...