Wilson v. Kemp

• Decision Date: 18 November 1985
• Docket Number: No. 84-8481,84-8481
• Parties: Joseph WILSON, Jr., Petitioner-Appellee, v. Ralph KEMP, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 621

777 F.2d 621

Joseph WILSON, Jr., Petitioner-Appellee, v. Ralph KEMP, Warden, Respondent-Appellant.

No. 84-8481.

United States Court of Appeals, Eleventh Circuit.

Nov. 18, 1985.

Rehearing and Rehearing En Banc Denied Feb. 10, 1986.

Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellant.

Bruce S. Harvey and Mark V. Spix, Atlanta, Ga., for petitioner-appellee.

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

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This appeal is from the district court's order granting habeas corpus relief to a state prisoner who has been convicted of murder and sentenced to death. We conclude that the prosecutorial argument at the sentencing phase of petitioner's trial rendered the proceeding fundamentally unfair in violation of the United States Constitution. Consequently, we affirm the grant of habeas corpus relief.

I. FACTS AND PRIOR PROCEEDINGS

Petitioner, Joseph Wilson, Jr., was convicted in a Georgia state court on August 16, 1979, of murder, kidnapping with bodily injury, and possession of a firearm during the commission of a crime. Wilson was sentenced for his crimes to death, life imprisonment, and five years imprisonment respectively, with his sentences to be served concurrently. The evidence presented at Wilson's trial tended to show that Wilson killed a man who he believed had cheated him in a drug deal by shooting the man at point blank range with a shotgun. Wilson's convictions and sentences were affirmed on direct appeal, Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981).

Wilson filed a petition for habeas corpus in the Superior Court of Butts County, Georgia. That court denied relief with respect to the murder and kidnapping convictions, but granted relief with respect to the firearms charge on the ground that this latter crime was a lesser-included offense of the murder charge. The Supreme Court of Georgia affirmed the state habeas court's denial of relief with respect to the murder and kidnapping convictions. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S.Ct. 580, 74 L.Ed.2d 940 (1982). The state did not cross-appeal from the grant of habeas relief with respect to the firearms conviction. ¹

Wilson next filed the present habeas petition in federal district court, raising numerous constitutional challenges both with respect to the guilt/innocence phase and with respect to the sentencing phase of his trial. The district court rejected each of Wilson's challenges relating to the guilt/innocence phase of his trial, and Wilson has not appealed from this aspect of the district court's order. The district court granted sentencing relief on the basis of Wilson's prosecutorial argument challenge, but declined to reach Wilson's other arguments with respect to the sentencing phase of his trial. The state filed the present appeal from the decision granting sentencing phase relief. Thus, the only substantive issue briefed or argued on the merits in this appeal is the issue concerning prosecutorial argument in the sentencing phase of Wilson's trial.

II. JURISDICTION TO HEAR APPEAL

Also pending before us is Wilson's motion to dismiss this appeal on the ground that the district court granted habeas relief without ruling on all of Wilson's claims for relief as to the sentencing phase. Wilson has cited this court's opinion in Blake v. Zant, 737 F.2d 925 (11th Cir.1984), for authority that a district court order disposing of less than all of a petitioner's claims for habeas relief is not an appealable final decision. Subsequent to oral argument in the present appeal, however, the opinion in Blake v. Zant was vacated by the court, and the jurisdictional question was reconsidered in Blake v. Kemp, 758 F.2d 523 (11th Cir.1985). The court in this latter opinion ruled that a judgment granting the writ of habeas corpus on less than all grounds asserted is an appealable final decision within the meaning of 28 U.S.C.A. Sec. 1291. Id., at 524-25. Wilson's petition comes within this rule of appealability since the district court granted habeas relief with respect to the sentencing phase of Wilson's trial. Consequently, we have jurisdiction to hear this appeal, and we proceed to consider the merits of the prosecutorial argument question.

III. THE CONSTITUTIONALITY OF THE PROSECUTOR'S CLOSING ARGUMENT

We have recently considered at length the standards to be applied by a federal habeas court in reviewing a state prosecutor's closing argument. See Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc). A prosecutor's argument violates the Constitution if it renders the defendant's trial "so fundamentally unfair as to deny him due process." Id. at 1400 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974)). Improper argument by a prosecutor reaches this threshold of fundamental unfairness if it is "so egregious as to create a reasonable probability that the outcome was changed." Id. at 1403. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

The methodology we have adopted for applying these constitutional standards is to determine first whether particular arguments by a prosecutor were improper and if so, to determine what the probable effect of the improper argument was on the jury. See Brooks v. Kemp, 762 F.2d at 1403. This approach recognizes that "a permissible argument, no matter how 'prejudicial' or 'persuasive,' can never be unconstitutional." Id. at 1403. We turn therefore to review the two parts of the prosecutor's closing argument that Wilson contends deprived him of due process at the sentencing phase of his trial.

A. The Eberhart Quote

In his closing argument, the prosecutor read a passage from a 19th Century Georgia case, Eberhart v. State, 47 Ga. 598, 609-10 (1873). The relevant portions of the closing argument, beginning with the prosecutor's introductory remarks, were as follows:

With reference to doing a higher duty and protecting society as opposed to the duty of rehabilitation, we would like to quote from a noted legal scholar in the 1800's. I think the Court is well aware of this particular passage:

(Reading): "We have, however, no sympathy with that sickly sentimentality that springs into action whenever a criminal is at length about to suffer for crime. This may be a sign of a tender heart, but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned, and the false humanity that starts and shudders when the axe of justice is ready to strike, is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal, but we must insist upon mercy to society, upon justice to the poor victim whose blood cries out against his or her violators. That criminals go unpunished is a disgrace to our civilization, and we have reaped the fruits of it in the frequency in which bloody deeds occur. A stern, unbending, unflinching administration of the penal laws, as it is the highest mark of civilization, is also the surest mode to prevent the commission of offenses."

Trial Transcript at 1300-01. The Supreme Court of Georgia has condemned use of this passage by prosecutors, see, e.g., Hawes v. State, 240 Ga. 327, 335-36, 240 S.E.2d 833, 840 (1977); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, 479-80 (1979), but the Georgia court has generally considered the effect of the passage insufficient to warrant reversal of the sentences imposed. See Ruffin v. State, 243 Ga. at 105, 252 S.E.2d at 479-80.

We have twice considered whether it was proper for prosecutors to use the Eberhart quote in closing argument. In Potts v. Zant, 734 F.2d 526, 535-36 (11th Cir.1984), we concluded that the passage may have misled the jury and that consequently its use was improper. Likewise, in Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc), we concluded that use of the quote was "extremely improper." Id. at 1459. In each of these cases, the prosecutor attributed the remark to the Georgia Supreme Court, a fact that we emphasized in deciding that use of the quote was improper. In Potts, we said "the prosecutor was plainly attempting to suggest to the jury that prior decisions of the state supreme court mandated the imposition of the death penalty in this case, and this conduct was clearly improper." 734 F.2d at 536. In Drake, we said "the invocation of the Supreme Court of Georgia to abjure mercy is undeniably wrong." 762 F.2d at 1459. The prosecutor at Wilson's trial did not attribute the Eberhart quote to the Georgia Supreme Court, but introduced the passage as a quote "from a noted legal scholar in the 1800's." We must decide whether in light of this difference, the Eberhart language could properly be used in closing argument.

The clear import of the Eberhart language is that a sense of mercy should not dissuade one from punishing criminals to the maximum extent possible. This position on mercy is diametrically opposed to the Georgia death penalty statute, which directs that "the jury shall retire to determine whether any mitigating or aggravating circumstances ... exist and whether to recommend mercy for the defendant." O.C.G.A. Sec. 17-10-2(c) (Michie 1982). Thus, as we held in Drake, the content of the Eberhart quote is "fundamentally opposed to current death penalty jurisprudence." 762 F.2d at 1460. Indeed, the validity of mercy as a sentencing consideration is an implicit underpinning of many United States Supreme Court decisions in capital cases. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) (striking down North Carolina's mandatory...