Tucker v. Francis

Decision Date16 January 1984
Docket NumberNo. 83-8466,83-8466
Citation723 F.2d 1504
PartiesRichard TUCKER, Petitioner-Appellant, v. Robert FRANCIS, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Joseph M. Nursey, Atlanta, Ga., Kenneth Rose, for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and FAY, Circuit Judges, and WISDOM *, Senior Circuit Judge.

FAY, Circuit Judge:

Appellant, Richard Tucker, was convicted of murder and kidnapping in the Superior Court of Bibb County, Georgia. He received two sentences of death. After exhausting his state direct appeal and habeas remedies, appellant filed this petition for writ of habeas corpus in the district court for the Middle District of Georgia. The district court denied relief and this appeal followed. We find error during the sentencing phase of appellant's capital trial and therefore reverse and remand this case for a new sentencing hearing.

Appellant raises six issues:

1. Whether the prosecutor's inflammatory, prejudicial closing argument during the sentencing phase violated appellant's right to a fundamentally fair trial and led to an arbitrary and capricious infliction of a death sentence.

2. Whether the prosecutor's comment on appellant's silence violated appellant's rights under the fifth, eighth and fourteenth amendments to the United States Constitution.

3. Whether trial counsel's failure to investigate or prepare for trial denied appellant his right to effective assistance of counsel.

4. Whether the trial court's instruction on the element of intent shifted the burden of persuasion to appellant in violation of his due process rights under Sandstrom v. Montana 42 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

5. Whether the trial court's failure to instruct the jury on the law of confessions, required under state law, together with the admission of contradictory, disputed and uncounseled confessions, violated appellant's rights under the fifth, sixth, eighth and fourteenth amendments to the United States Constitution.

6. Whether appellant was denied his right to an evidentiary hearing in the court below.


After appellant was convicted of murder he appealed to the Georgia Supreme Court. His conviction was affirmed, Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980), and the United States Supreme Court denied certiorari in Tucker v. Georgia, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980).

In May of 1981, appellant filed a habeas corpus petition in the Superior Court of Butts County, Georgia, which was denied. A second habeas corpus petition in that same court was denied in January, 1982. The United States Supreme Court again denied certiorari on October 12, 1982. Tucker v. Zant, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).

This petition for habeas corpus relief was filed in the district court on November 15, 1982. The case was referred to a magistrate who entered proposed findings of fact and conclusions of law to which appellant objected. The district court adopted the magistrate's proposed order and issued probable cause to appeal and permission to proceed in forma pauperis on June 24, 1983.

The victim in this case was kidnapped from a hospital parking lot and forced to drive to a secluded area. The victim, a fifty-year-old woman, was robbed and clubbed to death with an iron pipe. Her body was then stripped of all clothing and the clothing was burned. The partially decomposed body was not discovered until five days after the murder. The relevant facts of this case will be introduced as needed in discussion of the issues raised.


The Georgia legislature has chosen to segregate the jury's determination of guilt from its punishment recommendation in capital cases. After the jury finds a defendant guilty of a capital offense, a sentencing hearing is conducted during which the same jury evaluates the aggravating and mitigating circumstances pursuant to Ga.Code Ann. Secs. 17-10-31 & 17-10-2(b) (1982) and imposes a sentence of death or life imprisonment. In this case, the appellant alleges prosecutorial misconduct during the sentencing hearing of his capital trial. If error is found, it will require a new trial only on the issue of punishment. Hance v. Zant, 696 F.2d 940, 950 (11th Cir.1983); Miller v. State, 237 Ga. 557, 229 S.E.2d 376, 377 (1976).

The constitutional right to a fundamentally fair trial prevents the prosecutor from urging a jury to impose a sentence of death for improper or irrelevant reasons. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983); Hance, 696 F.2d at 951.

This court has recently had two occasions to evaluate the manner in which some Georgia prosecutors argue for a death penalty during the sentencing hearing in a capital trial. In Hance, the Georgia prosecutor employed impermissible stratagems to persuade the jury to recommend death. In Brooks, many of the same unprofessional arguments caused us to remand the case for a new sentencing hearing. In this case, the prosecutor's closing argument employed many of the same tactics as well as additional egregious stratagems. We detail the errors we find in the closing argument in this case to help Georgia prosecutors to better understand the constitutional bounds of their advocacy.

(a) The Standard Prison Guard Argument

In Hance, the prosecutor argued that the death penalty was appropriate to protect prison guards:

What about those prison guards who have to guard him? What about their wives and families when he thinks no more of human life than what we know he thinks, when he's already proved he will kill, that he completely disregards human life, what about them, what about their families? You're going to subject those people to him for the next fifty years of his life?

696 F.2d at 952.

In this case the prosecutor perfected this emotional tactic:

If he had access to a weapon, would he kill today? He said before that he killed and he enjoyed it, and he would kill again. You heard Mr. Sagnikene say that he hated the guards at Reidsville. Is he going to kill one of them if we let him go down to Reidsville and spent [sic] the rest of his life there? (T.Tr. at 896-97).

* * *

* * *

You're afraid of putting this man to death? Let the next victim of Richard Tucker be on your conscience. Let some prison guard, fifty-five years old, been working for twenty years at Reidsville--let some poor prison guard down there who can't carry a weapon because these people down there will grab it and use his weapon against him--let some prison guard down there who is right now on the job thinking about his pension, thinking about retiring in a few years--.

(T.Tr. at 898-99).

(b) Protection of Young Prisoners

The possible harm that the defendant would inflict on younger prisoners was raised in Hance. (696 F.2d at 952). Here, it was phrased as follows:

When we send Richard Tucker [to prison] tomorrow, our own time bomb--our own Bibb County time bomb sitting in the courtroom today, we set him loose on a prison guard or we set him loose on some twenty-year old kid who is serving a burglary sentence down there, who does have a chance for rehabilitation, who does have a future in our society, who can come back out. (T.Tr. at 899).

Both of these statements direct the jury's attention away from the task of imposing a sentence for the individual. Conjuring up images of possible murders of prison guards and inmates is inappropriate. As we stated in Brooks, "[s]entences should be imposed upon the 'individual' found guilty of committing the crime charged." 716 F.2d at 790. The effect of a sentence on the individual is the relevant consideration, not its effect on third persons.

(c) Allegation of Sexual Assault

The victim in this case was a fifty year old woman. Her naked body was found so long after death that it was medically impossible to determine if she had been sexually assaulted, therefore, the defendant was not charged with sexual assault. The Georgia Supreme Court found that there was no real issue of sexual assault. The evidence on the rape issue was so unsubstantial that had rape been charged a directed verdict would have been proper. Tucker v. State, 245 Ga. 68, 69, 263 S.E.2d 109, 110 (1980). Nonetheless, the Georgia prosecutor suggested to the jury that sexual assault be considered:

During the course of the main case there was not a great deal of evidence that you could consider about whether or not Mrs. Sandefur was sexually assaulted, but additional things have come in since that time and I think that you can consider the fact that she was unclothed and the fact that he says at one point she was on her knees. I think you can consider--I think consider this history right here: On the 25th day of December, 1964, Christmas Day, Richard Tucker did unlawfully and with force and arms feloniously break and enter into the dwelling house of Catherine Jackson with intent to commit a felony, to wit: rape. I think you can consider the medium brown pubic hair that was found on his clothing, and I think in your own mind you should be settled that this Defendant not only killed Edna Sandefur--and I hate to say this with the family sitting in the courtroom because I know they don't want to believe this; they don't want to believe the type of punishment that this Defendant imposed on their mother or their wife--but I think in your own mind you should be settled now by knowing that this man is a rapist and a murderer, that he forced Mrs. Sandefur to commit acts of oral sodomy on him and that he committed the offense of rape. That's the reason she was unclothed, not this nonsense about fingerprints on...

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