Tucker v. Kemp

• Decision Date: 29 September 1986
• Docket Number: No. 83-8137,83-8137
• Citation: 802 F.2d 1293
• Parties: William Boyd TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1293

802 F.2d 1293

William Boyd TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellee.

No. 83-8137.

United States Court of Appeals, Eleventh Circuit.

Sept. 29, 1986.

As amended Oct. 30, 1986.

Robert B. Remar, Eric G. Kocher, Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Wm. B. Hill, Atlanta, Ga., for respondent-appellee.

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

Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, ^* Circuit Judges, and HENDERSON, ^** Senior Circuit Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

In Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), we concluded that, although the prosecutor had made several improper comments at the sentencing phase of Tucker's trial, his sentencing proceeding was not thereby rendered fundamentally unfair. On December 2, 1985, the Supreme Court granted Tucker's petition for a writ of certiorari and remanded the case to our court for reconsideration in light of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Upon reconsideration, we conclude that our previous decision was consistent with Caldwell v. Mississippi and hold that, viewing the record as a whole, Tucker was not denied a fundamentally fair sentencing hearing.

I.

Subsequent to its decision in Caldwell, the Supreme Court decided Darden v. Wainwright, --- U.S. ----, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), which provides further guidance for our inquiry. The Court in Darden reiterated that the standard in a habeas case for assessing improper prosecutorial comment is, as initially enunciated in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), whether the proceeding at issue was rendered fundamentally unfair by the improper argument. Darden v. Wainwright, --- U.S. at ----, 106 S.Ct. at 2472. ¹ The Darden Court explained that Caldwell was a unique case. In Caldwell, the prosecutor, in the sentencing phase of a capital case, provided the jury with misleading information as to its role in the sentencing process, telling it that its decision was not final and was automatically reviewable by the state supreme court, thus diminishing the importance of the jury's role and allowing it to feel less responsible for the awesome decision before it. Id. at n. 15, 106 S.Ct. at 2473 n. 15. Of critical importance in Caldwell was the fact that the trial judge approved of the prosecutor's comments, stating that it was proper that the jury be told that its decision was automatically reviewable. See id.; Caldwell v. Mississippi, 472 U.S. at ----, 105 S.Ct. at 2638. Because of the trial judge's agreement with the prosecutor's comments, it was as if the jury received an erroneous instruction from the court at the sentencing phase of a capital proceeding, thus triggering the eighth amendment's heightened requirement of reliability in a capital case and mandating reversal. ²

II.

We now apply the preceding principles to the case before us. When this case was last before the en banc court, we applied the fundamental fairness standard to petitioner's sentencing proceeding and concluded that the prosecutor's comments did not render the proceeding fundamentally unfair. To make the fundamental fairness determination, we borrowed what has become known as the prejudice prong of Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), and asked whether there was "a reasonable probability that, in the absence of the offending remarks, the sentencing outcome would have been different." Tucker v. Kemp, 762 F.2d at 1483. "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 1483-84; see Strickland v. Washington, 466 U.S. at 693-94, 104 S.Ct. at 2068. We continue to believe that this standard properly describes the fundamental fairness inquiry--whether the improper remarks were of sufficient magnitude to undermine confidence in the jury's decision. If a reviewing court is confident that, absent the improper remarks, the jury's decision would have been no different, the proceeding cannot be said to have been fundamentally unfair.

The en banc court identified four instances of improprieties in the prosecutor's remarks in this case. Two of these, the interjection of the prosecutor's personal opinions and the reference to the financial burden on the taxpayers of imposing a life sentence, are unrelated to the jury's role in the capital sentencing process and thus fit squarely into the Darden v. Wainwright analysis. As set out in our prior opinion, neither of these instances was sufficiently egregious to render the proceeding fundamentally unfair.

The prosecutor's other two inappropriate remarks, which have been referred to as the "prosecutorial expertise" argument and the "jury dilution" or "last link" argument, partake of some of the elements found in Caldwell. ³ It could be argued that both comments tended to lessen the jury's role in the sentencing process because the comments advised the jury that others, including the prosecutor's office, the police, the grand jury, and the trial judge, participated in the proceedings culminating in a decision whether to impose the death penalty. Unlike Caldwell, however, the trial judge in this case correctly instructed the jury and did not put his imprimatur on erroneous information. The court's instruction emphasized to the jury that it had the responsibility of making the sentencing decision. Viewing the entire sentencing proceeding, there can be little doubt that the jury understood it had the sole responsibility to determine the sentence to be received by petitioner.

As discussed in our prior opinion, although the prosecutor told the jury that his office had made a careful decision that this case warranted seeking the death penalty, he did not stop there. He went on to describe why that decision was made, focusing on the individual characteristics of this crime and this defendant, allowing the jury to assess for itself the appropriateness of a death sentence. Defense counsel vociferously argued to the jury that it had the sole discretion to impose death or grant mercy, and the trial judge so instructed the jury. Defense counsel also took issue with the notion of prosecutorial expertise.

The "jury dilution" comments could arguably have tended to heighten or lessen the jury's awareness of its sense of responsibility, depending upon how the remarks are viewed. The prosecutor argued that the jury would not be alone in sentencing petitioner to death, but was the "last link" in a process that included police officers, the grand jury, the district attorney, and the trial judge. Although this argument could be said to spread the responsibility for imposing a death sentence, it also had the effect of informing the jury that the process stopped with it, and that if the petitioner was to receive a death sentence, it was the jury that must impose it. Regardless of the interpretation given this comment, the jury was told repeatedly by defense counsel, and instructed by the trial judge, that if it found an aggravating circumstance, it had the sole discretion to impose a life or death sentence. The jury was told that the decision was "completely within your discretion," that it was "absolutely your decision," and that it was its "prerogative" to grant mercy and spare the petitioner's life even if it found an aggravating circumstance. The trial judge correctly instructed the jury that it was "entirely within your discretion to impose either the death penalty or life imprisonment." The judge repeated this admonition just before the jury retired to deliberate.

When the record of the entire sentencing proceeding is reviewed, we are convinced that the jury was fully apprised of, and appreciated, the decision that it alone had to make--whether to impose a sentence of death or one of life imprisonment. The prosecutor's improper comments, in light of his entire argument, defense counsel's argument, and a proper instruction from the court, did not render the sentencing proceeding fundamentally unfair. Accordingly, we affirm the district court's denial of habeas relief on petitioner's prosecutorial argument claim.

AFFIRMED.

KRAVITCH, Circuit Judge, dissenting, in which JOHNSON and CLARK, Circuit Judges, join:

The majority holds that, Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), notwithstanding, the prosecutorial misconduct at issue here did not deprive Tucker of a fundamentally fair sentencing hearing. Because in my view the misconduct which occurred in Tucker's case violated core principles enunciated in Caldwell and was not rendered harmless, I respectfully dissent. I further dissent because the majority continues to adhere to its position that a petitioner who has shown prosecutorial misconduct at his sentencing hearing must further satisfy the heightened prejudice showing required of petitioners alleging ineffective assistance of counsel.

I. THE SENTENCING PROCEEDING

On March 9, 1978, William Boyd Tucker was convicted by a jury in Muscogee County, Georgia of murder, kidnapping with bodily injury, and robbery by intimidation. During the sentencing proceeding, Tucker called witnesses who testified as to his previously peaceful nature and his lack of any prior trouble with law enforcement. Tucker's witnesses also focused on his troubled relationship and recent reconciliation with his alcoholic father, the stress placed on Tucker by the sudden death of his father three months prior to the crime, and Tucker's serious problem with alcohol and marijuana following his father's death and including the day of the crime. The state presented no evidence at the sentencing proceeding. After the close of evidence, both...