Smith v. Dixon

Decision Date21 January 1994
Docket NumberNos. 91-4011,91-4012,s. 91-4011
Citation14 F.3d 956
PartiesKermit SMITH, Jr., Petitioner-Appellee, v. Gary DIXON, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant. Kermit SMITH, Jr., Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Barry Steven McNeill and Joan Herre Byers, Sp. Deputy Attys. Gen., North Carolina Department of Justice, Raleigh, NC, for Appellant. C. Frank Goldsmith, Jr., Goldsmith & Goldsmith, P.A., Marion, NC; Martha Melinda Lawrence, Patterson, Harkavy & Lawrence, Raleigh, NC, for Appellee. ON BRIEF: Lacy H. Thornburg, Atty. Gen. of North Carolina, North Carolina Department of Justice, Raleigh, NC, for appellant. North Carolina Resource Center, Raleigh, NC, for Appellee.



WILKINS, Circuit Judge:

Kermit Smith, Jr. is a North Carolina prisoner who was sentenced to death following his conviction of the December 3, 1980 first-degree murder, second-degree rape, and common-law robbery of Whelette Collins. The district court granted Smith relief pursuant to 28 U.S.C.A. Sec. 2254 (West 1977), finding that because an instruction given to the jury that sentenced him to death was unconstitutionally vague, Smith was entitled to a new sentencing hearing. Smith v. Dixon, 766 F.Supp. 1370 (E.D.N.C.1991). The State of North Carolina, through the warden of the prison where Smith is incarcerated, appealed this decision. Smith cross appealed, arguing that the district court erred in failing to find that the additional grounds he advanced also provided a basis for relief. A panel of this court affirmed the district court in all respects. Smith v. Dixon, 996 F.2d 667 (4th Cir.1993). Thereafter, this court granted the State's motion for en banc consideration and vacated its prior opinion. We now reverse.

I. Procedural Background

The gruesome facts surrounding Collins' long ordeal and subsequent murder are described in the opinion of the district court, Smith, 766 F.Supp. at 1373-74, and the decision of the Supreme Court of North Carolina affirming Smith's conviction and sentence on direct appeal, State v. Smith, 305 N.C. 691, 693-98, 292 S.E.2d 264, 266-69 cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). However, in order to fully appreciate how the procedural bar and harmless error principles discussed below apply here, a brief recitation of the facts and procedural history is helpful.

Smith kidnapped Collins and her two companions at gunpoint and took them to deserted woods. The physical and psychological ordeal Collins experienced lasted for many hours before she was murdered. While her companions were locked in the trunk of his automobile, Smith constantly threatened Collins with death and brutally raped her. Following the rape, Smith forced her to remain naked outside at night in below freezing temperatures for a substantial period of time, mocking her as she begged him for clothing or a blanket. Smith then bludgeoned Collins with a cinder block and dragged her body to a nearby quarry pond where he crammed her feet inside a cinder block in order to make her body sink. Collins' skull was fractured as a result of blunt trauma to her head; she died from these injuries. Her two companions escaped from the trunk of Smith's automobile physically unharmed and lived to supply many of the details of her ordeal.

After the jury convicted Smith, the trial court held a sentencing hearing in which it submitted four aggravating circumstances and five mitigating circumstances to the jury for consideration. Regarding one of the aggravating circumstances, whether the murder was "especially heinous, atrocious, or cruel," the court instructed:

[E]very murder is not especially heinous, it is not atrocious nor cruel. While every murder, if it results from an unlawful killing, of course, is a violation of the law, ... it does not necessarily mean that there is anything aggravated about it or that it was especially heinous or atrocious or cruel. And our Supreme Court has said that the words "especially heinous, atrocious or cruel" means extremely or especially or particularly heinous or atrocious or cruel. Heinous means extremely wicked or shockingly evil. Atrocious means marked by or given to extreme wickedness, brutality or cruelty, marked by extreme violence or savagely fierce. It means outrageously wicked and violent. Cruel means designed to inflict a high degree of pain, utterly indifferent to or the enjoyment of the suffering of others.

The jury found the aggravating circumstance set forth in N.C.Gen.Stat. Sec. 15A-2000(e)(5) (1988) in support of the imposition of the death sentence on three bases: that the murder was committed while the defendant was engaged in the commission of a rape of the deceased; that the murder was committed during the robbery of the deceased; and that the murder was committed during the kidnapping of the deceased. The jury also found the aggravating circumstance set forth in N.C.Gen.Stat. Sec. 15A-2000(e)(9) (1988), that the murder was "especially heinous, atrocious, or cruel." The members of the jury found the existence of one of the five mitigating factors that were submitted to them--that Smith committed the murder while "under the influence of [a] mental or emotional disturbance." N.C.Gen.Stat. Sec. 15A-2000(f)(2) (1988). The jury determined that the aggravating circumstances outweighed the mitigating circumstances, and recommended that Smith be sentenced to death.

Smith appealed his conviction and sentence, but did not challenge the constitutionality of the "especially heinous, atrocious, or cruel" aggravating factor, nor did he raise any of the other claims presently before this court. The Supreme Court of North Carolina conducted a review of the record pursuant to N.C.Gen.Stat. Sec. 15A-2000(d) (1988), determined that the evidence was sufficient to support the existence of each of the aggravating factors found by the jury, and affirmed Smith's conviction and sentence. State v. Smith, 292 S.E.2d at 276-77. The United States Supreme Court denied Smith's request for certiorari, and Smith's conviction became final on November 29, 1982. Smith v. North Carolina, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982).

In June 1983, Smith filed his first application for post-conviction relief, a motion for appropriate relief, with the Superior Court of Halifax County, North Carolina. See N.C.Gen.Stat. Sec. 15A-1415 (1988). Smith's motion for appropriate relief raised 57 separate grounds for relief, which were divided into five "Claims." Claims I through IV raised 43 issues relating to various pretrial rulings by the state trial court, jury selection, alleged errors occurring during the guilt and sentencing phases of Smith's trial, and challenges to the constitutionality of the death penalty in North Carolina, including an attack on the North Carolina system of appellate review of death sentences. Of particular relevance here, in Claim IV Smith raised for the first time the argument that the "especially heinous, atrocious, or cruel" statutory aggravating factor contained in Sec. 15A-2000(e)(9) was unconstitutionally vague, in violation of the Eighth and Fourteenth Amendments, and that the jury was not charged on a constitutionally limiting definition of this factor (Smith's "heinousness claim"). Further, all of the claims Smith currently asserts on cross appeal, except for his allegations of ineffective assistance of counsel, were raised for the first time in Claims I through IV. His remaining grounds for relief, set forth in Claim V, were allegations that his attorneys rendered ineffective assistance during his trial and appeal.

Without conducting a hearing or requesting a response from the State, the superior court entered a short summary order denying without discussion the 43 grounds for relief presented in Claims I through IV. 1 State v. Smith, Nos. 80 CRS 15265, 15266, 15271 (N.C.Super.Ct. Aug. 19, 1983). The superior court directed the State to respond to Claim V and ordered an evidentiary hearing on it. Id. After conducting this hearing, the superior court denied Smith's allegations of ineffective assistance of counsel in an exhaustive 33-page order containing detailed findings of fact and conclusions of law. State v. Smith, Nos. 80 CRS 15265, 15266, 15271 (N.C.Super.Ct. Dec. 16, 1983). Among those findings were ones that Smith's appellate counsel had read the transcript and notes, discussed the case with other attorneys, conducted research in those areas he deemed appropriate, and presented on appeal those claims on which he believed Smith had the best opportunity to prevail. Id., slip op. at 20. Smith's subsequent petitions for certiorari to the Supreme Court of North Carolina, State v. Smith, 333 S.E.2d 495 (N.C.1985), and the United States Supreme Court, Smith v. North Carolina, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 565 (1985), were summarily denied. 2

In May 1988, Smith petitioned the United States District Court for the Eastern District of North Carolina for relief pursuant to 28 U.S.C.A. Sec. 2254. The district court, in an opinion rendered prior to the decision of the Supreme Court in Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), rejected the State's contentions that Smith was barred from pursuing claims other than his ineffective assistance of counsel claims and those raised by him on direct appeal. Smith v. Dixon, 766 F.Supp. at 1376-77. Specifically, the district court held that Smith could pursue those issues raised for the first time in Claims I through IV of his 1983 motion for appropriate relief. Id. Relying on Harris v. Reed, 489 U.S. 255, 109...

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