Solomon v. Kemp, 83-8723

• Decision Date: 12 June 1984
• Docket Number: No. 83-8723,83-8723
• Citation: 735 F.2d 395
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Van Roosevelt SOLOMON, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent-Appellee.

Page 395

735 F.2d 395

Van Roosevelt SOLOMON, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent-Appellee.

No. 83-8723.

United States Court of Appeals Eleventh Circuit.

June 12, 1984.

George Kendall, Atlanta, Ga., Margaret Marshall, Leonard M. Singer, Boston, Mass., for petitioner-appellant.

Susan V. Boleyn, Atlanta, Ga., for respondent-appellee.

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

Before RONEY, FAY and CLARK, Circuit Judges.

FAY, Circuit Judge:

Petitioner, Van Roosevelt Solomon, appeals from the denial by the United States District Court for the Northern District of Georgia of his petition for a writ of habeas corpus. Petitioner was convicted in 1979 of murder in Georgia state court and was sentenced to death. Solomon raises six issues before this court: (1) whether the prosecutor impermissibly commented on petitioner's post-arrest silence and failure to testify in violation of petitioner's constitutional rights as enunciated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); (2) whether petitioner was denied his right to the assistance of reasonably effective counsel at the culpability and the sentencing phases of his trial; (3) whether the trial court's conspiracy instruction relieved the state of the burden of proving that petitioner intended to or did in fact kill the victim; (4) whether the prosecution rendered improper and prejudicial comments during the closing argument of the trial's sentencing phase so as to render the trial fundamentally unfair; (5) whether a prospective juror was properly excused for cause under the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); and (6) whether the district court properly concluded that petitioner has failed to establish that his sentence of death was the product of the arbitrary and discriminatory application of the Georgia death penalty. After a careful review of the entire record, including petitioner's state trial transcript and the transcript of his federal habeas evidentiary hearing, we affirm the district court's decision with respect to each of petitioner's claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted of first-degree murder and armed robbery for events surrounding the attempted robbery of a convenience store in June, 1979. The victim, Roger Tackett, was the manager of a Tenneco self-service gasoline station and convenience store in Cobb County, Georgia. On the night of the murder Tackett drove to the station at approximately 11:20 p.m. in order to lock the store after closing. Tackett escorted the Tenneco employees to their cars, locked the store and remained to catch up on some paperwork.

At approximately 1:50 a.m. on June 17, 1979, Officer Roy Kendle of the Cobb County Police Department noticed an unattended green Dodge automobile parked in front of the store with its driver's door open. As Officer Kendle began to investigate, he noticed a black male, subsequently identified as co-indictee Wilbur May, open the rear storeroom door from inside the store, look out, and then quickly close the door. Thinking this unusual, Officer Kendle approached the front door of the store. Finding the door unlocked, he drew his gun and entered the store. He then heard three closely-spaced gunshots, a pause, and then another shot. Officer Kendle ordered the person in the storeroom to come out. Receiving no response, he opened the storeroom door and discovered two black males, soon identified as Wilbur May and petitioner, standing near a walk-in cooler. He placed both persons under arrest. When asked what May and he were doing there, petitioner replied that they were "burglarizing." Officer Kendle took them into custody, radioed for assistance and gave them their Miranda warnings.

Officer Kendle placed petitioner in the rear seat of his car and May stood by the front of the car. Shortly thereafter, Officer Kendle was joined at the scene by Alex Woodard, a private security guard working in the vicinity who had heard Officer Kendle's radio call. Woodard proceeded to guard petitioner and May at gunpoint while Officer Kendle surveyed the scene. Pursuant to further investigation, Officer Kendle learned that the store manager, Roger Tackett, should have been at the store. Woodard then began questioning May, who shortly thereafter revealed that a man had been shot in the rear of the store. Officer Kendle and Woodard then broke into the storeroom, whereupon they discovered the victim's body. The time interval between the arrest and the discovery of the body was approximately twenty to thirty-five minutes.

The police recovered from the storeroom a cash register drawer wrapped in a garbage bag, two bullets, and two guns. One gun contained four discharged rounds and the other two discharged rounds. They also discovered a green Chevrolet van parked on a dirt path near the store; inside the van were burglary tools and two holsters. The police subsequently determined that this van belonged to petitioner.

Three hours after his arrest, petitioner gave a statement at the police station in which he said that May had tied him up, put him in the van and later forced him into the store. While at the police station, swabbings from the front and back of both hands of petitioner and May were taken. Although petitioner was wearing gloves when he was taken into custody, he was not wearing these upon his arrival at the police station. Officer Kendle subsequently found petitioner's gloves stuffed under the front seat of his patrol car.

Petitioner was tried before a jury upon the counts of armed robbery and murder in the Superior Court of Cobb County, Georgia. At trial a witness from the Georgia State Crime Laboratory testified that analysis of the swabbings showed that both petitioner and May had recently fired guns. The chief medical examiner for Cobb County testified that the victim received five bullet wounds, all but one of which were inflicted in close succession.

After the state rested its case, the defense presented no evidence before resting. During instructions the jury was charged, inter alia, on malice murder and general conspiracy. After deliberations the jury returned a general verdict of guilty.

At the sentencing phase of the trial, the state introduced evidence of three prior convictions. The defense presented testimony from four character witnesses and petitioner testified. The jury returned a sentence of death and petitioner was sentenced on September 27, 1979.

Petitioner's conviction and sentence were affirmed and a motion for rehearing was denied by the Georgia Supreme Court. Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980). The United States Supreme Court denied Solomon's petition for a writ of certiorari. Solomon v. Georgia, 451 U.S. 1011, 101 S.Ct. 2348, 68 L.Ed.2d 863 (1981).

On August 26, 1981, Solomon filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. Following an evidentiary hearing, the court on February 18, 1982 entered an unpublished order denying all relief. An application for a certificate of probable cause before the Georgia Supreme Court was denied in an unpublished order on April 20, 1982. On April 28, 1983, the Superior Court of Cobb County signed a death warrant ordering Solomon's execution on May 11, 1983.

On May 6, 1983, Solomon filed an application for federal habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 (1980) and a motion for a stay of execution in the United States District Court for the Northern District of Georgia. The district court immediately entered a stay. Following an evidentiary hearing conducted on August 2, 1983, the court on September 6, 1983 entered an order denying the application for a writ and lifting its previously issued stay of execution.

On October 11, 1983, the district court issued a certificate of probable cause to authorize appeal pursuant to 28 U.S.C. Sec. 2253 (1980) and a stay of execution pending appeal. Solomon on the same day filed a notice of appeal before this court.

II. PROSECUTORIAL COMMENT

Petitioner contends that the prosecutor, during the course of petitioner's trial, improperly commented on petitioner's post-arrest silence and on his failure to testify at trial so as to violate petitioner's constitutional rights under the principles enunciated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Finding no constitutional error in the prosecutor's references to petitioner's silence, we find no basis for relief relative to this claim.

A. The Doyle Issue

During direct examination of Officer Kendle, the prosecutor asked, "Prior to your discovering the body after you broke into the storeroom door, did Mr. Van Roosevelt Solomon ever tell you anything about that?" R.Vol. I at 312. Petitioner's counsel immediately objected and requested a Jackson--Denno hearing. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). A hearing was held out of the jury's presence during which Officer Kendle established that petitioner's only comment at the crime scene was a statement that he and May had been "burglarizing." When the jury returned to the courtroom, the prosecutor again asked of the officer, "Officer Kendle, I believe the question I asked was did Solomon make any other statements other than the one you have already testified to concerning the body in the store prior to your discovering it independently?" The officer's response was "No, sir." R.Vol. I at 315.

Petitioner also points to several references made by the prosecutor during closing argument as to petitioner's failure to mention the body in support of his contention that the prosecutor's comments were deliberate and prejudicial...