Stewart v. Dugger

• Decision Date: 09 June 1988
• Docket Number: No. 86-5800,86-5800
• Citation: 847 F.2d 1486
• 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 1486

847 F.2d 1486

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 9, 1988.

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

Calvin Fox, Asst. Atty. Gen. of Fla., 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:

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.

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. COMMENTS IMPLICATING CALDWELL V. MISSISSIPPI

A. Legislative Predetermination of the Sentence

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 the impact of this statement was compounded by the judge's earlier comment to the jury that: "You will assume that all the proper evidence and the proper law will be presented to you." Id. at 358-59.

Stewart argues 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. In the context of the entire trial, however, it is clear that the jurors were under no such impression. 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, 407, 441, 458, 461, 463, 479, 480, 513, 518, 526, 527, 550; see also id. at 535, 567-68 (comments of counsel). The jury was 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 has only enacted guidelines as to when the sentence of death is appropriate. Id. at 203, 213, 347, 348, 371, 563. No error occurred in this regard.

B. The Advisory Role of the Jury

Our Caldwell analysis, however, does not end here. During the course of reviewing the Caldwell claim raised by Stewart, this court noticed other occasions where the 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 requested supplemental briefing on this issue; those briefs have been received and considered. We conclude that no Caldwell violation occurred.

It may not be inappropriate to indulge in a brief and elementary discussion of the interests and aspirations of the parties during the selection of a jury for the trial of a capital case.

Beyond question, the defendant would prefer to have on the jury those in the community who oppose the death penalty or have misgivings about its imposition. Where the state is seeking the death penalty, the prosecutor, as advocate, would prefer those who find death to be an appropriate penalty.

During the questioning of prospective jurors on voir dire, much can be learned about their inclinations, predilections, and There are two ways of eliminating a prospective juror from the final jury. Each side of the case is entitled to a limited number of peremptory strikes and can eliminate prospective jurors without any stated reason. Fla.Stat.Ann. Sec. 913.08 (West 1985); Fla.R.Crim.P. 3.350 (West 1975 and Supp.1987). The trial counsel prefers to conserve these very valuable peremptory strikes and therefore prefers that the undesirable person be eliminated without the expenditure of a peremptory. Sometimes this can be accomplished by demonstrating that the prospective juror is disqualified. Fla.Stat.Ann. Secs. 913.03, 913.13 (West 1985).

deeply held convictions and biases. Some indicate that they are opposed to the death penalty. A prospective juror does not for that reason alone become disqualified to serve, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), but it can fairly be said that, all other things being equal, the defendant would desire to have that juror serve and the prosecutor would have misgivings about him or her.

There are a variety of disqualifications. Here, however, we are concerned only with the disqualification resulting from the prospective juror's feelings about capital punishment. If the juror's opposition to the death penalty is so strong that it would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," the juror would be disqualified. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (footnote omitted), (quoting Adams, 448 U.S. at 45, 100 S.Ct. at 2526); see Campbell v. State, 227 So.2d 873, 876-77 (Fla.1969), cert. dismissed sub nom. Campbell v. Florida, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); Fla.Stat.Ann. Sec. 913.13 (West 1985).

When a prospective juror has expressed disapproval of the death penalty on voir dire, the prosecutor, as trial advocate, has an interest in demonstrating that this disapproval is so great that the juror, being unable or unwilling to follow the law, is disqualified. On the other hand, defense counsel, wishing to have this juror remain qualified to serve, would be interested in developing from the juror a statement that, under certain circumstances, the juror's reluctance vis-a-vis capital punishment might be...