Spann v. Martin, 91-4007
| Decision Date | 30 April 1992 |
| Docket Number | No. 91-4007,91-4007 |
| Citation | 963 F.2d 663 |
| Parties | Sterling Barnett SPANN, Petitioner-Appellee, v. George N. MARTIN, III, Warden, Broad River Correctional Institution; PARKER EVATT, Commissioner, South Carolina Department of Corrections, Respondents-Appellants. Fourth Circuit |
| Court | U.S. Court of Appeals — Fourth Circuit |
Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., argued, for respondents-appellants.
John Henry Blume, III, S.C. Death Penalty Resource Center, Columbia, S.C., argued (R. Mickell Branham, Franklin W. Draper, S.C. Death Penalty Resource Center, Jon Popowski, Bolt, Popowski, McCullough & Strom, on brief), for petitioner-appellee.
Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and CHAPMAN, Senior Circuit Judge.
The issue is whether the district court abused its discretion in granting the capital habeas corpus petitioner dismissal without prejudice of his federal court action so that he might reexhaust certain state court claims, when such action had been in litigation in federal court for over five years and the execution of the state sentence has been stayed by the federal court since June 17, 1986. We hold that the district court did abuse its discretion, and we reverse and remand to the district court for a prompt consideration of the case on the merits.
In October 1981, Sterling Barnett Spann was indicted in the Court of General Sessions for York County, South Carolina on charges of criminal sexual conduct in the first degree, robbery, burglary, and murder in connection with the entry into the Clover, South Carolina home of an 82 year old widow, Mrs. Melva Harper Neil, and the robbery, criminal sexual assault, and murder of her on September 14, 1981. Two York County attorneys, James F. Fewster, Esquire and Edward M. Jackson, Esquire, were appointed to represent Spann at trial, and Spann also had the benefit of retained counsel, W. Newton Pough, Esquire, of Orangeburg, South Carolina. The trial was conducted from April 19 through April 26, 1982 and resulted in the conviction of Spann on all counts. At the sentencing hearing, the jury found beyond a reasonable doubt the existence of burglary as an aggravating circumstance to the murder and recommended that he be sentenced to death. Spann was sentenced to life imprisonment for burglary; 30 years, consecutively, for criminal sexual conduct in the first degree; ten years, consecutively, for robbery; and death by electrocution for murder.
He appealed his conviction and sentence to the South Carolina Supreme Court and was represented by David I. Bruck, Esquire, Kathy Lindsay, Esquire, and Elizabeth C. Fullwood, Esquire, experienced attorneys in handling criminal appeals.
In the opening brief to the South Carolina Supreme Court, the petitioner presented the following questions:
I.
Did the lower court err in charging the jury that burglary required only the intent "to commit a crime therein" which when applied retroactively to this appellant's conduct, violated the prohibitions against ex post facto laws?
Should the resulting death penalty based upon the retroactive broadening of the elements of burglary be vacated?
Did the lower court err in disqualifying certain jurors who oppose the death penalty, but who did not make it unmistakably clear that they would automatically vote against the death penalty without regard to any of the evidence?
Did the lower court err in allowing the Solicitor to argue during the guilt phase arguments facts and inferences not in the record which were calculated to inflame the passions of the jury?
Did the lower court err in qualifying jurors whose answers on voir dire indicate that they were predisposed to vote in favor of death?
In the reply brief, Spann's attorneys raised the following questions for review by the South Carolina Supreme Court:
I. Was Appellant entitled to a directed verdict on the charge of burglary because the state did not prove a breaking?
II. Is Appellant's death sentence unconstitutional and contrary to state law because the state did not prove the statutory aggravating circumstance of burglary?
III. Is Appellant's death sentence invalid under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and under state law because it was imposed under the influence of passion, prejudice and other arbitrary factors when the solicitor argued to the jury during the penalty phase of trial the facts of the criminal sexual conduct, even though the state relied only upon burglary as a statutory aggravating circumstance?
IV. Did the Court deprive Appellant of due process of law by amending the indictment to conform to the decision of State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981), and by charging the jury on the elements of burglary as set forth in that opinion when this action diluted the proof necessary to prove one of the elements of burglary?
V. Did the Court preclude the jury from properly considering mitigating factors offered by Appellant in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution by instructing the jury not to be governed by sympathy in determining its recommended sentence?
VI. Is the death penalty imposed in this case disproportionate to the penalty imposed in similar cases?
VII. Did the trial court err in permitting the state to prove the element of burglary in part through the introduction of testimony concerning the habits of the deceased?
The case was orally argued before the South Carolina Supreme Court and Spann's convictions and sentences were affirmed by published opinion, State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). The opinion of the South Carolina Supreme Court was appealed to the United States Supreme Court on February 3, 1984, and on April 23, 1984 the Supreme Court dismissed the appeal. See Spann v. South Carolina, 466 U.S. 947, 104 S.Ct. 2146, 80 L.Ed.2d 533 (1984).
The petitioner then began state post-conviction proceedings by filing an application for post-conviction relief on July 23, 1984, which he amended on October 11, 1984 and on December 3, 1984. In the post-conviction proceedings, petitioner was represented by Jon P. Popowski, Esquire, who is representing him in the present proceeding. He was also represented in the state post- conviction proceedings by Richard Harpootlian, Esquire. The following allegations were made in the amended application:
INEFFECTIVE ASSISTANCE OF COUNSEL
1. Applicant Spann has been deprived of his right to effective assistance of counsel at the guilt phase of his trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 14, of the South Carolina Constitution.
(a) Defense counsel failed to undertake a sufficient and independent factual investigation for the guilt portion of the trial so as to be able to present evidence to create a reasonable doubt or to effectively cross-examine the State's witnesses to create such a doubt.
2. Applicant Spann has been deprived of his right to effective assistance of counsel at the sentencing phase of his trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 14, of the South Carolina Constitution.
(a) Defense counsel failed to undertake a sufficient and independent factual investigation for the sentencing portion of the trial so as to be able to present mitigation evidence.
(b) Defense counsel failed to present mitigation evidence although there were witnesses who would have presented favorable mitigating testimony.
(c) Defense counsel failed to prepare for a sentencing trial.
(d) Defense counsel failed to prepare and/or present an effective defense to the aggravating circumstances argued by the State.
(e) Defense counsel failed to demonstrate that compared to sentences meeted [sic] out in like cases in the State, Petitioner's sentence was excessive.
3. Applicant was denied his rights to confront the witnesses against him, to a fair and reliable determination of both his guilt or innocence and his punishment, and to due process of law, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, by the State's failure to make a timely disclosure of exculpatory information before or at Applicant's trial, which information would have produced a reasonable doubt as to the Applicant's guilt, or which would have mitigated Applicant's punishment if convicted.
(a) The State failed to reveal to defense counsel exculpatory evidence or evidence which arguably was exculpatory during the guilt phase of the trial.
4. Applicant was denied his rights to effective assistance of counsel, to a fair and reliable determination of both his guilt or innocence and his punishment, to due process of law, and to the equal protection of the law, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and the corresponding Amendments of the S.C. Constitution by the State's failure to provide the Defendant or his lawyer reasonable pre-trial access to the State's evidence.
(a) The State's failure to and/or refusal to allow the Applicant even partial pre-trial discovery of information of the State's case violated Applicant's rights because:
(1) It hampered the Applicant's counsel in providing effective representation in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution.
(2) It denied applicant's counsel an opportunity to employ his own experts to examine the State's evidence prior to trial and so hampered the applicant's counsel in providing the effective assistance of counsel and a fair trial.
(3) This refusal or failure to provide even partial pre-trial discovery on behalf of the State denied the Applicant a fair trial and equal protection of the laws and resulted in an arbitrary and capricious...
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