Tucker v. Kemp

• Decision Date: 31 May 1985
• Docket Number: No. 83-8137,83-8137
• Parties: William Boyd TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1480

762 F.2d 1480

William Boyd TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Respondent-Appellee.

No. 83-8137.

United States Court of Appeals, Eleventh Circuit.

May 31, 1985.

Opinion on Denial of Rehearing July 23, 1985.

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

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

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

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

R. LANIER ANDERSON, III, Circuit Judge:

William Boyd Tucker was tried in the Superior Court of Muscogee County, Georgia, for the August 1977 murder of Kathleen Perry. He was convicted of murder, kidnapping with bodily injury, and robbery by intimidation. The jury sentenced Tucker to death for the murder and lesser terms for the other crimes. His convictions and sentences were affirmed by the Georgia Supreme Court and a petition for writ of certiorari to the United States Supreme Court was denied. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 250 (1980).

Tucker sought habeas corpus relief in the state courts but was unsuccessful. The state supreme court refused to hear an appeal and the United States Supreme Court denied Tucker's second petition for writ of certiorari. Tucker v. Zant, 454 U.S. 1022, 102 S.Ct. 555, 70 L.Ed.2d 417 (1982). Tucker then filed the instant habeas corpus petition in the federal district court. Relief was denied. On appeal, a panel of this court considered six constitutional claims and granted relief on the ground that improper prosecutorial argument had rendered Tucker's sentencing hearing "fundamentally unfair." See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). The Court rejected all other asserted grounds for relief. Tucker v. Zant, 724 F.2d 882 (11th Cir.1984). ¹ We voted to reconsider en banc the prosecutorial argument at sentencing issue, thereby vacating the panel opinion. 724 F.2d 898 (11th Cir.1984). We now affirm the district court's denial of relief on the prosecutorial argument claim and reinstate the panel opinion in all other respects.

Part I of this opinion outlines the relevant facts of Tucker's case. Part II discusses the standard for reviewing claims of improper prosecutorial argument. See Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc). Part III considers the alleged improprieties in this case. Finally, Part IV determines whether the improper arguments warrant granting Tucker a new sentencing hearing.

I. FACTS

Kathleen Perry was working alone as a clerk in a Majik Market in Columbus, Georgia, on the night of August 20, 1977. Witnesses placed Tucker in the store shortly before midnight. Shortly after midnight, two customers entered the store, noted that no employee was on the premises, and called the police.

At approximately 1:00 a.m. on August 21, three Columbus residents driving in a pick-up truck passed a red Volkswagen parked with its lights on. They looked inside the car, saw Tucker at the wheel, and noticed a shoe on the pavement. After driving approximately one-fourth of a mile, they turned to go back and the Volkswagen passed them. Returning to the spot where the car had been parked, they found the shoe, a Majik Market vest, a bra, and the body of Kathleen Perry. She had been stabbed to death; the medical evidence suggested that she bled to death within 4 to 6 minutes. The police were notified.

While the police were on the scene with the witnesses who found the body, a red Given this evidence, the jury found Tucker guilty of murder, robbery, and kidnapping. Although the indictment also charged Tucker with aggravated sodomy, a directed verdict was entered on the charge because Georgia law disallows convictions based solely on uncorroborated confessions. Ga.Code Ann. Sec. 24-3-53 (1982).

Volkswagen approached. The witnesses identified the driver as the man they had seen earlier. William Boyd Tucker was arrested and gave a confession in which he admitted to robbing and kidnapping Perry and forcing her to commit oral sex upon him. He claimed not to remember anything else except that there had been a knife and much blood.

Because the district attorney's office had chosen to seek the death penalty in this case, the sentencing hearing required by the Georgia capital punishment statute commenced. Ga.Code Ann. Sec. 17-10-2(c) (1982). The state introduced no new evidence relative to punishment. Various defense witnesses testified to Tucker's previously peaceful nature and the stress placed upon him by the death of his father three months before the crime. Tucker and his mother explained that his use of drugs and marijuana had become a serious problem after his father's death. Tucker explained that he had been drinking and smoking heavily the day of the crime and continued to claim a lack of memory about the actual killing. He also expressed remorse for the crime and hoped that he could rehabilitate himself while in prison. Tucker had never been in trouble with the law before.

After this evidence was introduced, closing arguments were delivered for the state and the defendant. ² The jurors were then instructed and began their sentencing deliberation. After a short time, the jury returned a verdict of death. ³

II. STANDARD OF REVIEW

In Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc), this court considered the standard for federal habeas corpus review of alleged errors in prosecutorial closing arguments. The standard, first explicitly discussed in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), is not whether the complained-of comments are egregious or "universally condemned," but whether they rendered the defendant's trial "fundamentally unfair." 416 U.S. at 642, 94 S.Ct. at 1871. To make that determination vis a vis argument in a capital sentencing hearing, a reviewing court should ask whether there is a reasonable probability that, in the absence of the offending remarks, the sentencing outcome would have been different. Brooks v. Kemp, 762 F.2d at 1402; see Strickland v. Washington, --- U.S. ----, ----, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1974). ⁴ A "reasonable probability" Our review is obviously only concerned with the possible effect of improper arguments. We must therefore examine the closing argument in this case and isolate sections which were impermissible. We then can determine whether there is a reasonable probability that they changed the outcome of Tucker's sentencing hearing.

is a probability sufficient to undermine confidence in the outcome. Id. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

III. PROPRIETY OF PROSECUTORIAL ARGUMENT

Tucker challenges various arguments made by prosecutor Gray Conger in his closing argument at the sentencing phase. ⁵ A Georgia prosecutor may argue subjects relevant to the capital sentencing jury's decision. As a general matter, proper areas of argument include the facts of the crime, the individual characteristics of the defendant (including future dangerousness and rehabilitative prospect), and the valid penological justifications for the death penalty (retribution, incapacitation, and general deterrence). Brooks v. Kemp, 762 F.2d at 1406 - 1408. We will now examine the arguments complained of by Tucker to see if they exceeded those legitimate sentencing considerations.

1. Conger began his closing argument on the following note:

I've been here a number of years in the District Attorney's Office and I've tried a number of cases, many cases as a matter of fact, and the death penalty is seldom requested in Columbus, it's very infrequently requested. And since I've been here, it's been requested as a matter of fact, something less than a dozen times. It's not very often that we come in here and ask you to bring in a verdict of a death sentence on an individual.

Tucker claims that this argument improperly put the prosecutor's "expertise" before the jury as a reason for imposing the death penalty.

We have held such arguments to be improper. Brooks v. Kemp, 762 F.2d at 1410. This discussion of the prosecutor's infrequency of seeking death was not supported by any evidence before the jury. It is wrong for the prosecutor to tell the jury that, out of all possible cases, he has chosen a particular case as one of the very worst. While facts of the crime can be stressed to show the seriousness of the case, ⁶ the prosecutor's careful decision that this case is special is irrelevant and is potentially prejudicial. Such comments, made by an experienced prosecutor, may alter the jury's exercise of complete discretion by suggesting that a more authoritative source has already decided the appropriate punishment. We will consider the impact of the statement in Part IV of the opinion.

2. Tucker next complains of various instances in which Conger asserted his personal opinion on matters before the jury. Conger asserted that Tucker could never be rehabilitated, arguing "I'd move to Russia before I'd live next door to this man." He explained how he would feel if Tucker was executed:

[I]f he is executed, and if you bring in a verdict of guilty, I'll sleep just as good, or I'll sleep better knowing that one of them won't be on the street. Knowing that one of them will be gone. It's not all of them, but it's better than none.

Conger also gave this long statement about the deterrent value of the death penalty:

Well, Mr. Cain is probably going to get up here and tell you that he doesn't believe or the evidence is that punishment, or capital punishment, does not deter others from similar criminal activity. Well, to me ladies and gentlemen, I don't believe it. I don't believe that. You can count me as one of those people who believes that a person receiving a death...