Stewart v. Dugger

• Decision Date: 27 June 1989
• Docket Number: No. 86-5800,86-5800
• Citation: 877 F.2d 851
• Parties: Roy Allen STEWART, Petitioner-Appellant, v. Richard L. DUGGER, As Secretary Department of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 851

877 F.2d 851

Roy Allen STEWART, Petitioner-Appellant, v. Richard L. DUGGER, As Secretary Department of Corrections State of Florida, Respondent-Appellee.

No. 86-5800.

United States Court of Appeals, Eleventh Circuit.

June 27, 1989.

Robin H. Greene, Sp. Asst. Public Defender, Coral Gables, Fla., for petitioner-appellant.

Calvin Fox, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, and HILL and KRAVITCH, Circuit Judges.

HILL, Circuit Judge:

The court, sua sponte, reconsiders this case insofar as our previous opinion addressed an issue which had been raised by the court sua sponte and unadvisedly. For the reasons stated, one section of our previous opinion (I-B) is stricken and a statement of the reasons for its being stricken is inserted. In order that our entire opinion may be found in one place, we vacate our Roy Allen Stewart brought this federal habeas petition challenging his sentence of death. His petition sets forth four claims for relief; (1) comments made by the trial judge diminished the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), (2) improper exclusion of a juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), (3) ineffective assistance of counsel at sentencing, and (4) racial discrimination in imposing the death penalty. The federal district court denied relief on all four claims. We affirm.

earlier opinion, 847 F.2d 1486 (11th Cir.1988), and the following is adopted in its place and stead:

The facts surrounding Stewart's 1979 conviction are sufficiently detailed by the Florida Circuit Court's order denying state habeas relief:

The victim, Margaret Haizlip, a woman of small physical stature, in her late seventies, was a pioneer of South Florida living in a small home across from Stewart's temporary residence. About 10:00 p.m. Mrs. Haizlip was out on her porch and saw Stewart. She waived [sic] to him, invited him into her home and fixed him a sandwich. Shortly thereafter he went to her bathroom and stole a gold watch from the medicine cabinet. Mrs. Haizlip, after going into the bathroom confronted the defendant, apparently about the stolen watch, whereupon Stewart beat and pummelled Mrs. Haizlip unmercifully about her ribs, face and head. While so doing, the defendant was tearing the clothing and ultimately the underwear from her body. As she lay on the floor, bleeding from her face, moaning and "making noises," the defendant forcibly had sexual intercourse with her in a manner so vicious so as to tear her vagina. The defendant thereupon fastened a cord with an iron attached to it around her neck, pulled tightly on the cord and thereby strangled her leaving a ligature mark on her neck.

The medical examiner testified the victim suffered eight broken ribs, multiple contusions, and her larynx was broken. A bite mark was identified on her thigh, and what appeared to be a bite mark was on her breast. There were blood stains and disarray in the living room and bedroom area of her house, indicating the victim was fighting and running for her life. The defendant left the victim at the scene with blood on his hands.

Sentence Order dated July 26, 1979 at 3-4.

On September 19, 1986, the governor of Florida signed a death warrant (Stewart's second). Stewart's execution was subsequently scheduled to occur on October 7, 1986. Stewart commenced various collateral attacks in state court; a previous round of state collateral attacks had proved unsuccessful. After Stewart's claims were rejected a second time by the Florida state courts, Stewart commenced this federal habeas proceeding. On October 5, Stewart's petition was denied by the United States District Court for the Southern District of Florida. The district court, however, granted a certificate of probable cause to appeal, but denied a stay of execution. In view of the fact that the district court had granted a certificate of probable cause to appeal, we granted a stay of execution. Stewart v. Wainwright, 802 F.2d 395 (11th Cir.1986); see Eleventh Circuit Rule 22-3; Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

I. THE CALDWELL V. MISSISSIPPI ISSUES

A

Stewart contends that comments made during voir dire diminished the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). During voir dire, the trial court asked the following question of a juror:

Just briefly, let me ask you about capital punishment. We have to ask this question, ... because this is one of those cases where the legislature has said that the death penalty is the appropriate penalty.

Trial Transcript at 409. Stewart claims that the impact of this statement was compounded by the judge's earlier comment to the jury that "[y]ou will assume that all the proper evidence and the proper law will be presented to you." Id. at 358-59. According to the appellant, the effect of the judge's comment was to instruct the jury that the appropriateness of his execution had already been decided by the state legislature, thus minimizing the jury's sense of responsibility for determining the death penalty. We disagree.

The inquiry under Caldwell is whether comments made at trial "mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision." Dugger v. Adams, --- U.S. ----, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989) (quoting Darden v. Wainwright, 477 U.S. 168, 184, n. 15, 106 S.Ct. 2464, n. 15, 91 L.Ed.2d 144 (1986)); See Harich v. Dugger, 844 F.2d 1464, 1473 (11th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1355, 103 L.Ed.2d 822 (1989); Mann v. Dugger, 844 F.2d 1446, 1456 (11th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989). Here, in the context of the entire trial, it is clear that the jurors were under no impression that the legislature had predetermined the appropriateness of the death penalty for Stewart. Although the trial judge's question to the prospective juror was inartfully phrased, the trial judge intended to convey the message (1) that the legislature had determined the death penalty to be appropriate in the narrow class of homicides in which aggravating circumstances are present, (2) that the prosecutor intends to present evidence of such aggravating circumstances in this case, and (3) that the jury may impose death if aggravating circumstances outweigh mitigating circumstances. Throughout voir dire, the jury was informed that not all murders call for capital punishment and that a finding of guilt as to first-degree murder does not require a verdict of death. Id. at 275, 344, 348, 415, 419, 482, 490, 506, 566. On at least eighteen occasions the trial judge referred to the fact that death can only be imposed under appropriate circumstances. Id. at 298, 299, 302, 309, 397, 400, 406, 441, 458, 460, 463, 479, 480, 513, 521, 526, 527, 550; see also id. at 518, 535, 567-68 (comments of counsel). The jury was also specifically informed during voir dire that they would be required to weigh aggravating and mitigating circumstances during the sentencing phase. Id. at 392, 444. Furthermore, the terms aggravating and mitigating circumstances were defined during voir dire. Id. at 530-33. Most significantly, the jury was informed that the legislature had only enacted guidelines as to when the sentence of death was appropriate. Id. at 203, 213, 347, 348, 371, 563. Under these circumstances, the trial judge committed no Caldwell error.

B

While reviewing the Caldwell claim raised by Stewart and addressed above, this court noticed other occasions where defense counsel, the prosecutor and the trial judge touched on functions of the jury which might have been asserted as implicating Caldwell in a manner different from that which had been suggested by Stewart. The court sua sponte requested supplemental briefing and then addressed the merits of some, but not all, of these other, potential Caldwell issues. See Stewart v. Dugger, 847 F.2d 1486, 1489-93. (11th Cir.1988). Upon further consideration of this record, however, we conclude that this court should not have analyzed these Caldwell issues. As our now withdrawn opinion observed, it was Stewart who initiated many of the comments we viewed as possibly implicating Caldwell. At trial, he did not object to these comments or others made by the trial judge and by prosecuting counsel. Stewart did not challenge the legality of any of these comments in his direct appeal to the Supreme Court of Florida. As a result, he waived these claims under Florida law. See Adams, 109 S.Ct. at 1217, n. 6 (citing numerous Florida cases). ¹ There is no assertion or basis for In contrast, Stewart did challenge the constitutionality of the comments discussed in part I-A of this opinion in his direct appeal to the Supreme Court of Florida. See Appellant's Brief to the Supreme Court of Florida, R-15 at 8; Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983). ³ Stewart thereby properly preserved this claim for federal habeas review. ⁴

finding that "cause" and "prejudice" would excuse this procedural default, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), and it is clear that our failure to review these additional Caldwell issues would not result in the death sentence of "one who is actually innocent," Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986). Our review of the issues we raised on our own motion is, therefore, precluded. See Adams, 109 S.Ct. at 1215-1217 (defendant's failure to raise Caldwell claim on direct appeal to the Florida Supreme Court constituted a state...