Tucker v. Zant

• Decision Date: 20 January 1984
• Docket Number: No. 83-8137,83-8137
• Citation: 724 F.2d 882
• Parties: William Boyd TUCKER, Petitioner-Appellant, v. Walter D. ZANT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 882

724 F.2d 882

William Boyd TUCKER, Petitioner-Appellant, v. Walter D. ZANT, Respondent-Appellee.

No. 83-8137.

United States Court of Appeals, Eleventh Circuit.

Jan. 20, 1984.

Opinion Rehearing and Rehearing En Banc March 15, 1984.

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

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

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

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

JOHNSON, Circuit Judge:

On March 9, 1978, the petitioner, William Boyd Tucker, was convicted in Muscogee County, Georgia, of murder, kidnapping with bodily injury, and robbery by intimidation. His convictions grew out of the August 21, 1977, robbery of a Majik Market convenience store and the abduction and stabbing death of a clerk, Kathleen Perry. ¹ Tucker's jury sentenced him to death for the murder. On automatic appeal, the Georgia Supreme Court upheld both the convictions and the death sentence. 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). In August 1980, Tucker filed an application for state habeas corpus relief. The state habeas court conducted an evidentiary hearing and subsequently denied relief. The Supreme Court of Georgia denied Tucker's writ of probable cause to appeal. Tucker v. Zant, No. 1590 (April 22, 1981), cert. denied, 454 U.S. 1022, 102 S.Ct. 555, 70 L.Ed.2d 417 (1982).

Having exhausted all avenues of relief in the state courts, Tucker filed a habeas corpus petition in the United States District Court for the Middle District of Georgia, Macon Division, on January 28, 1982. On January 5, 1983, the court transferred the case to the Columbus Division. On January 26, 1983, the court denied Tucker's request for an evidentiary hearing and adopted a magistrate's report and recommendation denying relief. Tucker filed a notice of appeal on February 18, 1983.

Tucker's claims fall into six categories: (1) The prosecutor's misconduct denied him a fair sentencing hearing; (2) the trial court's charge to the jury in the sentencing phase of his trial was constitutionally infirm; (3) his counsel was ineffective both at trial and on direct appeal; (4) the Supreme Court of Georgia's review of his sentence was constitutionally inadequate; (5) the evidence at trial was insufficient to prove the presence of an aggravating factor beyond a reasonable doubt, and (6) the district court improperly denied him an evidentiary hearing. On the first issue, prosecutorial misconduct, we reverse the district court's holding and remand with instructions to grant the petitioner's request for resentencing. We affirm the district court on all other issues.

I. PROSECUTORIAL MISCONDUCT

Tucker claims that the emotional nature of the prosecutor's argument to the jury at his sentencing hearing renders his death sentence invalid. We agree. In Hance v. Zant, 696 F.2d 940, 952 (11th Cir.1983), we announced the principle that a "dramatic appeal to gut emotion has no place in the courtroom, especially in a case involving the penalty of death. A sentence imposed after such an appeal cannot be carried out." ² Before turning to the merits of Tucker's claim, we will attempt to dispel some confusion that has apparently surrounded our decision in Hance. ³

Georgia law permits the imposition of the death penalty only if the state is able to prove, beyond a reasonable doubt, the existence of a statutory aggravating factor. O.C.G.A. Sec. 17-10-30(c). ⁴ Even if the jury determines that an aggravating circumstance exists, it may opt to exercise mercy by returning a life sentence. O.C.G.A. Sec. 17-10-30(b). A prosecutor may not attempt to inflame jurors faced with this awesome choice by playing on their passions, prejudices, and fears. Hance, 696 F.2d at 951; Brooks v. Francis, 716 F.2d 780 at 786 (11th Cir.1983). "This does not mean that prosecutors cannot be zealous, enthusiastic and determined." Brooks, at 790. In Hance this Court did not proscribe reasonable appeals to the jury's sense of outrage at the horror of the defendant's crime. The Supreme Court has confirmed that

[i]n part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.

* * *

... [T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

Gregg v. Georgia, 428 U.S. 153, 183-84, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (footnotes omitted). At the same time, this retributive justification requires that capital punishment be imposed only on those who are deserving of society's ultimate sanction. See Zant v. Stephens, --- U.S. ----, ----, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983) (in order to avoid constitutional invalidation, aggravating factors must "reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder"). Hence, the retributive nature of the capital sentence is reflected in the Supreme Court's frequently repeated concern that the death penalty not be applied in an arbitrary and capricious manner, see, e.g., Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), and that the sentencer's focus be on the individual offender and his crime. Lockett v. Ohio, 438 U.S. 586, 602-05, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The requirement that the sentencer consider any relevant mitigating circumstance, see Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 873-75, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, supra; Westbrook v. Zant, 704 F.2d 1487, 1501 (11th Cir.1983), also flows from notions of retributive justice. The retributive justification for capital punishment requires that the sentencing decision turn in large part on considerations of the justice of imposing death on a given offender for committing a given crime. See Zant v. Stephens, --- U.S. at ----, 103 S.Ct. at 2743.

In Georgia's sentencing scheme the jury serves, in part, to gauge "society's moral outrage at particularly offensive conduct." Gregg, supra. Once the jury has found the presence of a statutory aggravating factor, it has discretion whether to impose the death penalty or to exercise mercy. This decision should turn on whether this defendant is deserving of mercy or whether his crime is "so grievous an affront to humanity that the only adequate response may be the penalty of death." Id. The jury's choice will thus depend largely on its evaluation of the horribleness of the accused's crime, ⁵ and that evaluation is necessarily based on subjective and emotional factors.

Consequently, it is not constitutionally improper for a prosecutor to make arguments about the heinousness of the defendant's crime in emotional terms. The gravity of the crime is a crucial factor in the jury's decision, and arguments about the gravity of a murder will always be emotional. Mere recitation of the facts of some crimes is likely to stir the passions of reasonable persons. This Court's precedent states that even the most graphic description of a murder and characterization of the criminal are permissible if the evidence supports them. Cronnon v. Alabama, 587 F.2d 246, 251 (5th Cir.1979). ⁶

Hance did not prohibit prosecutors from arousing the emotions of the jury with statements that are supported by the evidence and relate to issues of an inherently emotional nature that are crucial to the jury's sentencing decision. Rather, Hance was an attempt to put prosecutors on notice that the Constitution will not permit arguments on issues extrinsic to the crime or the criminal aimed at inflaming the jury's passions, playing on its fears, or otherwise goading it into an emotional state more receptive to a call for imposition of death and "invit[ing] the jury to decide the life-death verdict in a frenzied and emotional atmosphere." Brooks v. Francis, at 789. A prosecutor's sentencing argument that appeals to the emotions of the jurors is not prohibited by Hance when it relates directly to "the circumstances of [the] particular offense," Woodson v. North Carolina, 428 U.S. at 304, 96 S.Ct. at 2991, and is supported by the evidence. ⁷

In Tucker's sentencing hearing the prosecutor violated this standard by making a number of statements bearing striking resemblance to those found objectionable in Hance and Brooks. He began by telling the jury

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, in the five years I've been here, 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.

In Hance, 696 F.2d at 951-52, we found a similar statement impermissible. Such arguments are objectionable because their effect is to assure the jurors that someone with greater experience has already made the decision that the law imposes on them. The statement invites the jury to rely on the prosecutor's office's conclusion that the defendant is deserving of death rather than to make its own evaluation of the enormity of the defendant's crime.

The prosecutor...