Stephens v. Kemp

• Decision Date: 22 April 1988
• Docket Number: No. 84-8540,84-8540
• Citation: 846 F.2d 642
• Parties: William Kenny STEPHENS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 642

846 F.2d 642

William Kenny STEPHENS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee, Cross-Appellant.

No. 84-8540.

United States Court of Appeals Eleventh Circuit.

April 22, 1988.

Rehearing and Rehearing En Banc Denied May 27, 1988.

John Rogers Carroll, Charles A. Glackin, Thomas Colas Carroll, Philadelphia, Pa., James K. Jenkins, Savannah, Ga., for petitioner-appellant, cross-appellee.

Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee, cross-appellant.

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

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

HILL, Circuit Judge:

This case is before the court on appeal from the district court's denial of appellant William Kenny Stephens' petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254.

In 1980 appellant was found guilty of one count of murder and three counts of aggravated assault, the victim in each case being a police officer. He was sentenced In its opinion affirming the conviction and sentences, the Supreme Court of Georgia set forth the facts of the case as follows:

                to death for the murder and to consecutive sentences of twenty years in prison on each count of aggravated assault.  The conviction and sentences were subsequently affirmed by the Georgia Supreme Court.   Stevens [sic] v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3551, 77 L.Ed.2d 1398 (1983)
                

The record establishes that on January 22, 1979, the police stopped the defendant for questioning regarding the burglary of a department store in which several weapons had been taken. It was discovered that he was driving under the influence and without a license, whereupon he was arrested. After being questioned at the police station, the defendant agreed to ask around and find out who was involved in the burglary in exchange for his release upon his own recognizance. As a condition to his release, he was to report back by a certain time. When he did not contact the officer at the appointed time, nor for two days thereafter, the police began to look for him. On January 24, investigator Larry Stevens of the Richmond County Sheriff's Department located the defendant, followed him a short way and then stopped him. When the officer stopped the defendant, he radioed this fact and his location to fellow officers.

After the investigator stopped his automobile, he opened his car door and apparently leaned back to do something with his radio. The defendant fired into the car through the windshield striking investigator Stevens in the right forearm and rendering his right arm below the elbow useless. The police officer managed to get his gun out and fired wild shots through his automobile at the defendant. The defendant fired a second shot striking the officer in the right side. Then the defendant walked to the rear of the investigator's automobile, turned, raised the weapon up to shoulder height, and fired in a very calm, deliberate manner through the rear window. The round hit the officer in the chest and was almost immediately fatal. The defendant then went to his car and drove off at a high rate of speed. He intended to go to his mother's house, but stopped on the way at a store to purchase more ammunition. When he approached his mother's house, authorities were waiting for him, and a high speed pursuit then occurred. This occurred approximately twenty-five minutes after the murder. Officers finally trapped the defendant in a cul-de-sac, and a gun battle with the police then ensued. The defendant maintained that when investigator Stevens stopped him, he exited his automobile with a loaded rifle in order to show the officer that he had recovered some of the guns from the burglary and that as he approached the officer's car, the officer, for no reason, shot at him at which instance the defendant then opened fire shooting the officer in self-defense.

"Monkey" Warren testified that the defendant and Paul Lewis came to him on the Saturday night before the victim was killed and showed him some guns they wanted to sell him. The defendant showed him a rifle of the same type that killed the victim and when he didn't want to buy it, the defendant shot through the floor and left.

247 Ga. at 699, 278 S.E.2d at 401.

The defendant testified at trial that as he got out of his car and walked back toward the investigator's car carrying a loaded rifle the investigator suddenly and without provocation began firing at him, and that he only fired back in self-defense. The state proved its case by producing expert testimony concerning the likely sequence and effect of each of the shots fired during the incident as well as the eyewitness testimony of a letter carrier who, while making his rounds, happened upon the crime while it was in progress.

Appellant filed a petition for a writ of habeas corpus in state court in August 1983. That petition was denied following a hearing, and the Georgia Supreme Court denied appellant's petition for a certificate Appellant then filed the federal habeas corpus petition that is now before this court. Following an evidentiary hearing on appellant's claims of ineffective assistance of counsel, the district court issued a lengthy opinion and order finding appellant's claims to be without merit and dismissing the petition in its entirety. 592 F.Supp. 228.

of probable cause to appeal. Appellant then filed a federal habeas corpus petition pursuant to 28 U.S.C. Sec. 2254. Shortly thereafter, appellant's counsel, who had represented him at trial, on appeal, and on his first state habeas petition, withdrew from the case and was replaced by new counsel. New counsel amended the petition to include numerous allegations of ineffective assistance of counsel. Because those claims had never been presented to the state courts, the district court dismissed the petition in accordance with the Supreme Court's decision in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Appellant returned to state court, where his second petition for habeas corpus relief was denied on the grounds that it was successive and that appellant had waived his ineffective assistance of counsel claims by not raising them in the original state habeas petition.

Appellant raises the following claims of error on this appeal:

(1) The district court erred in refusing to hold an evidentiary hearing at which appellant would have been permitted to introduce expert testimony in support of his claims that his constitutional rights were violated when the trial court refused to provide funds for a ballistics expert to aid him with his defense.

(2) The district court erred in refusing to allow appellant to introduce at an evidentiary hearing the expert testimony of a psychiatrist who would have testified concerning appellant's likely mental condition when he was tried and when he committed the crime.

(3) He received ineffective assistance of counsel at trial.

(4) Certain jurors were excluded from the jury in violation of appellant's rights under Witherspoon v. Illinois, 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] (1968).

(5) The trial court's instructions on malice and intent violated appellant's constitutional rights under Sandstrom v. Montana, 422 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1978), and progeny, which error was not harmless beyond a reasonable doubt.

(6) The trial court judge improperly interjected himself into the proceedings in violation of appellant's fifth and fourteenth amendment rights.

(7) Georgia's death penalty statute is unconstitutional as applied to appellant.

(8) The trial court's instructions concerning mitigating circumstances in the penalty phase of the trial were constitutionally inadequate.

(9) The trial court improperly excluded certain evidence offered in mitigation in the penalty phase.

(10) Appellant was denied his constitutional rights by the prosecutor's argument to the jury in the penalty phase.

The state argues on its cross-appeal that the district court should have enforced an asserted procedural bar that would have precluded appellant from raising his third claim above on federal habeas.

We address appellant's claims (1) through (7) in the order in which they are presented above. Because of our disposition of appellant's ineffective assistance of counsel claim, we need not and do not address claims (8) through (10) on this appeal.

DISCUSSION

I. Expert Ballistics Assistance Claim

Stephens contends that he was deprived of his constitutional rights by the state's failure to provide funds for the appointment of a ballistics expert to assist in the preparation of an adequate defense. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the state must provide an indigent defendant with a competent psychiatrist to conduct an appropriate examination The Supreme Court's statement in Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ] implies that the government's refusal to provide nonpsychiatric expert assistance could, in a given case, deny a defendant a fair trial. The implication is questionable, however, in light of the court's subsequent statement that it had "no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type [Caldwell ] sought." Id. (emphasis added). We nonetheless assume, for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a showing of need.

                provided the "defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial."    The issue of whether Ake extends beyond an indigent defendant seeking to assert the

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