Wiggerfall v. Jones, 89-7022

• Decision Date: 14 December 1990
• Docket Number: No. 89-7022,89-7022
• Citation: 918 F.2d 1544
• Parties: Elzra WIGGERFALL, Petitioner-Appellant, v. Charlie JONES, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1544

918 F.2d 1544

Elzra WIGGERFALL, Petitioner-Appellant, v. Charlie JONES, Warden, Respondent-Appellee.

No. 89-7022.

United States Court of Appeals Eleventh Circuit.

Dec. 14, 1990.

Alison M. MacDonald, Mobile, Ala., for petitioner-appellant.

Fred Bell, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

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

Before HATCHETT and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court of the United States held that the defendant was convicted of capital murder in violation of due process when the jury that passed judgment on him was precluded by Alabama statute from finding him guilty of lesser included noncapital offenses. Elzra Wiggerfall was convicted and sentenced to life imprisonment without possibility of parole, after a trial in which the court, in compliance with this same statute, failed to charge the jury that it could consider whether Wiggerfall had committed lesser included offenses. We find that Wiggerfall's conviction was obtained in violation of the principles of due process set out in Beck and reverse the district court's denial of Wiggerfall's petition for habeas corpus.

FACTS

On the night of September 4, 1976 Wiggerfall and three other men, Larry Cheatham, Jerome Lynch, and Eddie Lee Johnson, decided to rob a service station in Mobile, Alabama. The attendant on duty at the station, Linda Scott, was shot and killed that night. Police arrested Wiggerfall three days later as a suspect. He was tried on October 25, 1977 for the intentional killing of Scott during a robbery or attempted robbery, a capital offense under the statute in existence at that time. Ala.Code Sec. 13-11-2(b) (1975) (repealed).

At the trial Sergeant Vincent Richardson of the Mobile Police Department testified that he and other members of the Department interrogated Wiggerfall on the night of his arrest. During this interrogation, according to Richardson, Wiggerfall gave a statement in which he denied shooting Scott but admitted planning the robbery with Cheatham, Lynch and Johnson. In this statement Wiggerfall claimed that he remained in the car some distance away from the service station while the others attempted to rob it.

Johnson, Cheatham and Lynch each testified for the prosecution. Johnson testified that on the night of September 4 he gave Wiggerfall a handgun that Johnson had taken from a third person. According to Johnson, the group decided to rob the service station and drove to it in Cheatham's car. Johnson, Lynch, and Wiggerfall walked up to the outside window of the station while Cheatham remained in the car a couple of blocks away. Wiggerfall told Scott, who was inside the station on the other side of the window, that this was a holdup and demanded money, but Scott only laughed and refused. Johnson testified that Wiggerfall then pointed the gun at Scott; Johnson and Lynch turned and ran across the street, and at that point Johnson heard a gun fire.

Lynch testified that he was with the others on the night of September 4, that he was near the window of the service station when Scott was shot, and that he saw Wiggerfall shoot her. Lynch provided no details of the shooting or of anything else occurring that night. Cheatham testified that he was with the others on the night of September 4 and that he remained in his car by himself while the others went to the station and returned.

Wiggerfall testified in his own behalf at trial. He admitted that he was with Johnson, Lynch and Cheatham in Cheatham's car on the night of September 4 and that he gave them advice about robbing the service station. Wiggerfall stated that he drove the group to the station and that he parked the car and remained in it while the other three walked to the station. Wiggerfall claimed that they later came running back to the car and that Johnson told him that Lynch had shot Scott.

After deliberating for half an hour, the jury found Wiggerfall guilty of capital murder. Under Sec. 13-11-2, this verdict had the effect of fixing Wiggerfall's punishment as death. ¹ On December 6, 1977 the state court judge conducted a hearing at which he sentenced Wiggerfall to life without possibility of parole. ²

Wiggerfall did not file a direct appeal. He later filed three writs of error coram nobis in Alabama state court, all of which were denied. The Alabama Court of Criminal Appeals affirmed these denials without written opinions. Wiggerfall then filed this Sec. 2254 petition pro se in the U.S. District Court for the Southern District of Alabama. After transcripts from the state proceedings were filed, the magistrate concluded that no evidentiary hearing was necessary and recommended denial of the petition. The district court adopted the report and recommendation of the magistrate and denied relief. Still acting pro se, Wiggerfall appealed. This court appointed counsel for Wiggerfall on appeal. We address only his due process claim relating to the trial court's failure to charge the jury on lesser included noncapital offenses. ³

Following the Supreme Court's ruling in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the State of Alabama enacted a capital murder statute designed to direct and limit the jury's discretion in the imposition of the death penalty. Act of Sept. 9, 1975, No. 213, 1975 Ala. Acts 701 (codified at Ala.Code Secs. 13-11-1 et seq. (1975) (repealed 1981)). Two features of that statute are particularly important to the resolution of this case. First, the statute mandated that the jury "fix the punishment at death" if it determined that the defendant was guilty of committing one of enumerated offenses with aggravation. Sec. 13-11-2(a). Second, the statute precluded the trial court from giving the jury the option of convicting the defendant of a lesser included offense that did not carry the death penalty. Id.

This statutory scheme afforded the jury no discretion to influence the defendant's sentence in any way in a capital murder case other than to impose a mandatory sentence of death by its determination of guilt. The jury had no option to convict the defendant of murder and impose a lesser sentence than death. The jury bore no discretion to recommend to the sentencing judge a lesser sentence than death. And the jury was not allowed to convict a defendant who it believed beyond a reasonable doubt, on the basis of the evidence before it, had committed a serious crime of any lesser included offense besides capital murder. The 1975 statute effectively forced the jury into "an all-or-nothing choice between capital murder and innocence." Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159-60, 82 L.Ed.2d 340 (1984) (citing Beck, 447 U.S. at 638-43, 100 S.Ct. at 2390-93). By choosing innocence the jurors would knowingly release a defendant back into his--and possibly their--community.

Although the language of Sec. 13-11-2(a) suggests that the Alabama statute was a mandatory death penalty law, like the statutes ruled unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the trial judge, not the jury, actually bore ultimate responsibility for sentencing the defendant found guilty of capital murder. Sec. 13-11-3. The statute did not require the judge to impose the death penalty but gave the judge the alternative of a sentence of life imprisonment without possibility of parole. The trial judge was not required to afford any weight to the jury's forced "fixing of punishment at death," Sec. 13-11-2, when it determined and imposed sentence on the defendant. See Baldwin v. Alabama, 472 U.S. 372, 382-86, 105 S.Ct. 2727, 2733-35, 86 L.Ed.2d 300 (1985). Nonetheless, the probable popular understanding of the operation of the Alabama statute was that the jury imposed the death penalty on the defendant by finding him guilty of capital murder and that the trial court, acting on its own, could later reduce this sentence to life imprisonment without possibility of parole. See Baldwin, 472 U.S. at 394 n. 2, 397 & n. 6, 105 S.Ct. at 2729 n. 2, 2732 & n. 6 (Stevens, J., dissenting). Trial judges instructed juries that they had to impose the death sentence if they found defendants guilty, carrying the implication that this sentence was final, since jurors were not informed that the judge would impose final sentence independently. Hopper v. Evans, 456 U.S. 605, 608, 102 S.Ct. 2049, 2051, 72 L.Ed.2d 367 (1982); Beck, 447 U.S. at 639 & n. 15, 100 S.Ct. at 2390 & n. 15. Thus the jury that convicted Wiggerfall had reason to believe that its only choices were to sentence him to death or to acquit him entirely. In its charge to the jury the trial court made these comments:

[Y]ou as citizens of this community [who] are called into a grave case of this nature certainly have a reason to know what type of offenses are embraced within Act 213 [the capital murder statute]; and just to give you a complete background of Act 213, I am going to read you the provisions of Section 2, and then I am going to give you fourteen illustrations of when this Act of Capital Punishment would apply.

Section 2 says: "If the jury finds the Defendant guilty, they shall fix the punishment at death when the Defendant is charged by indictment with any of the following offenses and with aggravation which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses." In other words, he is either guilty or he's not guilty of electric chair murder if you find any of the following offenses with aggravation in the offense:

Trial Transcript at 165 (emphasis added). Later, after listing the offenses set out in Sec. 13-11-2 and charging the jury on...