Tafero v. Wainwright

• Decision Date: 28 July 1986
• Docket Number: No. 84-5908,84-5908
• Citation: 796 F.2d 1314
• Parties: Jessie Joseph TAFERO, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1314

796 F.2d 1314

Jessie Joseph TAFERO, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 84-5908.

United States Court of Appeals, Eleventh Circuit.

July 28, 1986.

As Amended Sept. 6, 1986.

Marc Cooper, Greene & Cooper, P.A., Miami, Fla., for petitioner-appellant.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

The appeal in this capital case requires application of the Supreme Court's recent decision in Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986)

and resolution of a host of other issues. We affirm.

FACTS

In the morning of February 20, 1976, Florida Highway Patrol Officer Phillip Black and a visiting Canadian law enforcement officer, Donald Irwin, approached a car parked at a rest stop on Interstate 95 in Broward County, Florida. Officer Black saw Walter Rhodes asleep in the driver's seat, Tafero asleep in the right front seat, and Sonia Jacobs and two children asleep in the backseat. Black also saw a pistol at Rhodes's feet. Black then ordered Rhodes and Tafero out of the car. Soon thereafter a struggle began between Black and Tafero.

A truck driver at the rest area testified that Rhodes stood with his hands in the air while Irwin grabbed Tafero and held him against the patrol car. The witness heard a single shot followed by Irwin's cry that he had been shot. After hearing several shots, he saw Black and Irwin fall to the ground. The witness concluded that the shots came from the back seat of the car.

A second eyewitness, another truck driver, testified that after Tafero and Black had begun struggling, Black pulled a pistol on Tafero and Rhodes. He noticed Sonia Jacobs in the back seat, then heard several shots and saw both Black and Irwin fall.

The third eyewitness was co-indictee Rhodes. Rhodes testified that when Black took the pistol from the car, Tafero passed another pistol to Jacobs in the back seat. Rhodes testified that his back was turned when the scuffle between Black and Tafero began. He heard two shots which sounded as if they were fired from different guns. He turned and saw Jacobs holding a pistol which Tafero then grabbed and shot Black and Irwin, who then fell to the ground.

All three eyewitnesses testified that Rhodes, Tafero, Jacobs, and Jacobs's children fled in Black's patrol car. The group later commandeered another car and took its owner hostage. They were finally apprehended at a police roadblock.

The jury convicted Tafero of two counts of first degree murder and one count each of robbery and kidnapping, and the court sentenced him to two death sentences and two prison terms. The Supreme Court of Florida affirmed the convictions on direct appeal. Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694, reh'g denied, 456 U.S. 939, 102 S.Ct. 2000, 72 L.Ed.2d 461 (1982).

PROCEDURAL HISTORY

Tafero filed an original petition in the Supreme Court of Florida for permission to file a writ of error coram nobis alleging newly discovered evidence. This petition was denied. Tafero v. Florida, 440 So.2d 350 (Fla.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

On November 2, 1984, the Governor of Florida signed a death warrant with the execution scheduled for November 29, 1984. Tafero's motion for post-conviction relief in the state trial court was denied after an evidentiary hearing. The Supreme Court of Florida, after oral argument, affirmed the trial court's order. Tafero v. State, 459 So.2d 1034 (Fla.1984). On November 28, 1984, the federal district court, after a hearing, denied Tafero's federal habeas corpus petition. The district court found probable cause for Tafero to appeal and granted a twenty-four hour stay of execution. This court granted an indefinite stay.

On appeal from the district court's denial of his writ of habeas corpus, Tafero raises the following constitutional claims:

I. Because the jury instructions allowed the jury to impose the death penalty for felony murder without a finding by the jury that Tafero killed, attempted to kill, or intended to kill, the imposition of the death penalty is cruel and unusual punishment in violation of the eighth amendment and in contravention of Enmund v. Florida.

II. The evidence was insufficient to support a felony murder conviction; therefore, the general verdict entered, which could have been based on either premeditation or felony murder, should be set aside.

III. Tafero was denied effective assistance of counsel at every stage of the proceedings, and in particular during the penalty stage of his capital trial, in violation of his rights under the sixth, eighth, and fourteenth amendments to the United States Constitution.

IV. The inherently prejudicial atmosphere surrounding the proceedings, both before and during trial, and the trial judge's failure to recuse himself denied Tafero a fair trial.

V. Because the trial court failed to determine whether Tafero knowingly and intelligently waived his right to present mitigating evidence or affirmatively participate in the sentencing phase, the death penalty was unconstitutionally imposed.

VI. Because it was based on a jury instruction which did not inform the jury that aggravating factors had to be proved beyond a reasonable doubt, the sentence of death was unconstitutionally imposed.

VII. Because the sentence of death was imposed by a judge who believed he could not consider non-statutory mitigating circumstances, it was unconstitutionally imposed.

VIII. Because the standard jury instructions limit jury consideration of mitigating factors, the death penalty in Florida is unconstitutional.

IX. Because the trial judge refused to allow Tafero to take a polygraph examination, to contact witnesses, to grant a continuance, and to properly exclude jurors, Tafero was denied due process of law.

X. The trial judge denied Tafero the right to self-representation.

XI. Because no rational basis exists for sentencing Tafero to death when Jacobs and Rhodes received only life sentences, Tafero's sentence of death is unconstitutional.

DISCUSSION

I. The Enmund Standard

Tafero contends that the imposition of the death penalty was improper because the jury was not instructed that in order to recommend death, it must find that he either killed, attempted to kill, or intended that a killing take place, and thus violated the Supreme Court's directive in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Enmund, the defendant was convicted of murder under a Florida law providing that a person could be found guilty of first degree murder if present at the scene and actively aiding and abetting in the commission of a felony during the course of which a person was killed. Enmund's role was that of a getaway driver who waited outside the residence where a robbery and murder of two victims took place. The Supreme Court reversed the death sentence, holding that the eighth amendment does not allow imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by others, "but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." 458 U.S. at 796-97, 102 S.Ct. at 3376-77, 73 L.Ed.2d at 1151. The Court emphasized that in determining the validity of capital punishment under these circumstances, the focus should have been upon Enmund's own culpability, not on the culpability of those who committed the robbery and the murders.

This court held that the Enmund determination of whether the accused killed, attempted to kill, or intended that a killing take place need not be made by the jury, but could be made after a review of the record by the federal habeas corpus court. Ross v. Kemp, 756 F.2d 1483, 1488 (11th Cir.1985) (en banc). This decision conflicted with the Fifth Circuit's determination that the accused is entitled to a new sentencing hearing when it is unclear from the jury's verdict whether the jury found that the accused killed, attempted to kill, or intended that a killing occur. See, e.g., Bullock v. Lucas, 743 F.2d 244 (5th Cir.1984), modified sub nom. Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704; Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), clarified on reh'g, 732 F.2d 494 (5th Cir.1984). The Supreme Court granted certiorari in Bullock prior to Tafero's scheduled execution, and thus this court granted Tafero an indefinite stay of execution to await the Supreme Court's resolution of this issue.

In Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704, the Court interpreted Enmund as holding "only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law: that is, the class of murderers who did not themselves kill, attempt to kill, or intend to kill." --- U.S. at ----, 106 S.Ct. at 696 (footnote omitted). The Court found that the decision of whether a particular punishment is appropriate in any given case is not one that has ever been required to be made by a jury. --- U.S. at ----, 106 S.Ct. at 696-698. Instead, the Court held that the Enmund criteria must be satisfied within the state's judicial process. "[I]t is [the state], therefore, not the federal habeas corpus court, which should first provide Bullock with that which he has not yet had and to which he is constitutionally entitled--a reliable determination as to whether he is subject to the death penalty as one who has killed, attempted to kill, or intended that a killing take place or that lethal force be used." --- U.S. at ----, 106 S.Ct. at 700 (footnote omitted).

In Cabana, the...