Stephens v. Kemp

• Decision Date: 06 December 1984
• Docket Number: Civ. A. No. 84-484-1-MAC.
• Citation: 602 F. Supp. 960
• Parties: Alpha Otis O'Daniel STEPHENS, Petitioner, v. Ralph KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. District Court — Middle District of Georgia

602 F. Supp. 960

Alpha Otis O'Daniel STEPHENS, Petitioner, v. Ralph KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent.

Civ. A. No. 84-484-1-MAC.

United States District Court, M.D. Georgia, Macon Division.

December 6, 1984.

Sumner & Hewes, William Sumner, Quintus W. Sibley, Atlanta, Ga., Thomas M. Lahiff, Jr., Kathryn Keneally, New York City, Kilpatrick & Cody, Virginia Taylor, Atlanta, Ga., for petitioner.

William B. Hill, Jr., Senior Asst. Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.

OWENS, Chief Judge:

Petitioner Alpha Otis O'Daniel Stephens is before this court on his third application for habeas corpus relief under 28 U.S.C.A. ž 2254 (West 1977).¹ In his petition, petitioner asserts only one claim in support of his prayer for relief: the inadequacy of the trial court's instructions to the jury regarding the meaning and role of mitigating circumstances.

The respondent has answered by denying that any of petitioner's constitutional rights have been violated as a result of the sentencing phase charge. The respondent further pleads that this action constitutes an abuse of the habeas corpus process, and has therefore moved to dismiss this action pursuant to Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C.A. foll. ž 2254 (West 1977).² Respondent asserts that petitioner should have raised this claim in his second application for habeas corpus relief filed before this court on November 15, 1983. An evidentiary hearing, as required by Potts v. Zant, 638 F.2d 727, 747 (5th Cir.), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981), was held on December 5, 1984.

Issues Presented

The court perceives that two issues have been raised by petitioner's application. First, both parties agree that the constitutional sufficiency of the trial court's charge on mitigating circumstances was specifically considered and ruled upon against petitioner in his first application for federal habeas corpus relief. Stephens v. Zant, 631 F.2d 397, 404-05 (5th Cir.1980), modified on reh'g, 648 F.2d 446 (5th Cir.1981), rev'd on other grounds, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (hereinafter referred to as Stephens I). Petitioner maintains, however, that there has been an intervening change in the law which renders his sentencing phase charge constitutionally insufficient. Therefore, the court must determine if such a change has in fact occurred. Second, respondent, while not conceding that there has been an intervening change in the law, argues that if such a change occurred, it took place prior to the November, 1983, filing of petitioner's second application for federal habeas corpus relief, and that petitioner, having failed to raise this claim in his second petition, should now be precluded from asserting this issue. Therefore, assuming a change in the law occurred, this court must determine if this change took place prior to November, 1983, and, if so, whether petitioner can be excused for failing to present this claim in his previous appearance before this court.

The Jury Charge on Mitigation ÔÇö Intervening Change in the Law

The sentencing phase of petitioner's trial took place on January 21, 1975. The trial court gave the following further charge regarding the definition and role of mitigating circumstances:

FURTHER CHARGE OF THE COURT:

Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation sic mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proved beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, we fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, we fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case.

REPORTER'S NOTE: The jury retires from the courtroom.

Record at 320-22.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the plurality opinion of the Supreme Court held that a jury considering the imposition of the death penalty must be allowed to consider, as a mitigating factor, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604, 98 S.Ct. at 2965.

In October of 1978, the former Fifth Circuit Court of Appeals interpreted Lockett as requiring a specific charge defining and explaining mitigating circumstances:

This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against death.

Chenault v. Stynchcombe, 581 F.2d 444, 448 (5th Cir.1978).

Petitioner's first petition for a federal writ of habeas corpus was filed in this court on February 8, 1979. In this petition, petitioner asserted that the trial court's charge on mitigating circumstances was inadequate. On appeal to the former Fifth Circuit, the NAACP Legal Defense Fund filed a brief as amicus curiae (see Appendix A to this opinion), wherein this issue was specifically raised in light of Chenault. See Brief for Amicus Curiae at 35-47, Stephens v. Zant, 631 F.2d 397 (5th Cir.1980) (reproduced herein as Appendix A). The Fifth Circuit Court of Appeals rejected this claim, stating:

III. IMPROPER JURY INSTRUCTION

Petitioner contends that, while the jury was instructed in the sentencing phase of the trial that it must find at least one statutory aggravating circumstance before it could impose a death sentence, it was not instructed that even if it found such a circumstance it need not impose death.

When an appellate court reviews the adequacy of an instruction to the jury, it must view the charge as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Brooks, 611 F.2d 614, 619 (5th Cir.1980). Only when the charge taken in its entirety fails to fairly present the issues to the jury will error be found. United States v. Chandler, 586 F.2d 593, 606 (5th Cir.1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979).

In his charge to the jury, the trial judge instructed them that they were to consider all the evidence of the case, including evidence of mitigation and aggravation. He told the jury that unless one of the statutory aggravating circumstances was found to be proven beyond a reasonable doubt, they would not be authorized to impose a death penalty. He then specified which aggravating circumstances they would consider. He told them that if they wished to recommend mercy, they did not have to recite any mitigating or aggravating circumstances they might find. He concluded by instructing them how to fill out the forms.

Considering the charge as a whole, it is clear that the issue was fairly

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