Zettlemoyer v. Fulcomer

• Decision Date: 20 March 1991
• Docket Number: No. 88-5543,88-5543
• Citation: 923 F.2d 284
• Parties: Keith W. ZETTLEMOYER, Appellant, v. Thomas A. FULCOMER, Superintendent, State Correctional Institution at Huntingdon, Pennsylvania and Honorable Leroy S. Zimmerman, Attorney General of the Commonwealth of Pennsylvania, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 284

923 F.2d 284

Keith W. ZETTLEMOYER, Appellant, v. Thomas A. FULCOMER, Superintendent, State Correctional

Institution at Huntingdon, Pennsylvania and

Honorable Leroy S. Zimmerman, Attorney

General of the Commonwealth of

Pennsylvania, Appellees.

No. 88-5543.

United States Court of Appeals,

Third Circuit.

Argued March 30, 1989.

Reargued Oct. 12, 1990.

Decided Jan. 16, 1991.

Rehearing and Rehearing In Banc

Denied March 20, 1991.

Thomas B. Schmidt (argued), Pepper, Hamilton & Scheetz, Harrisburg, Pa., for appellant.

Richard A. Lewis, Dist. Atty., Todd B. Narvol, Sr. Deputy Dist. Attorney for Dauphin County (argued), Harrisburg, Pa., for appellees.

Before SLOVITER, GREENBERG, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Petitioner Keith W. Zettlemoyer appeals to this court from an order of the United States District Court for the Middle District of Pennsylvania entered May 31, 1988, dismissing his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We have jurisdiction under 28 U.S.C. Sec. 1291. We will affirm the order of the district court dismissing Zettlemoyer's petition.

I. PROCEDURAL AND FACTUAL HISTORY

Zettlemoyer murdered Charles DeVetsco on October 13, 1980, one week before DeVetsco was to be a witness for the Commonwealth of Pennsylvania at a trial of several felony charges against Zettlemoyer. Two police officers arrested Zettlemoyer, who was heavily armed, after they heard the shots that killed DeVetsco at a railroad yard in Harrisburg in the early morning hours. The unmistakable inference from the evidence is that Zettlemoyer, who knew that DeVetsco was to be a witness at the ensuing trial, kidnapped and executed him so that he could not testify.

At the murder trial in the Dauphin County Court of Common Pleas, Zettlemoyer did not contest that he had killed DeVetsco but presented a defense of "diminished capacity." The jury returned a verdict of guilty of first degree murder and on the same day determined that a death sentence should be imposed under 42 Pa.Cons.Stat.Ann. Sec. 9711 (Purdon 1982 & Supp.1990), the germane portions of which provide:

(a) Procedure in jury trials.--

(1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.

(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).

(3) After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c).

....

(c) Instructions to the jury.--

(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:

(i) the aggravating circumstances specified in subsection (d) as to which there is some evidence.

(ii) the mitigating circumstances specified in subsection (e) as to which there is some evidence.

(iii) aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by the defendant by a preponderance of the evidence.

(iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

....

(d) Aggravating circumstances.--Aggravating circumstances shall be limited to the following ...

....

(5) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.

....

(e) Mitigating circumstances.--Mitigating circumstances shall include the following:

(1) The defendant has no significant history of prior criminal convictions.

(2) The defendant was under the influence of extreme mental or emotional disturbance.

(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(4) The age of the defendant at the time of the crime.

(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution ... or acted under the substantial domination of another person.

(6) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal acts.

(7) The defendant's participation in the homicidal act was relatively minor.

(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

42 Pa.Cons.Stat.Ann. Secs. 9711(a)-(e).

After the Court of Common Pleas denied Zettlemoyer's post-trial motions, he filed a direct appeal to the Supreme Court of Pennsylvania which affirmed his conviction and sentence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). ¹ Zettlemoyer then filed a petition seeking a new trial in the Court of Common Pleas under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa.Cons.Stat.Ann. Secs. 9541-9551, but on August 26, 1985, that court denied the petition without a hearing. ² Commonwealth v. Zettlemoyer, 106 Dauphin County Repts. 215 (1985). Zettlemoyer appealed from the denial of the petition to the Superior Court which affirmed on July 2, 1986. Commonwealth v. Zettlemoyer, 359 Pa.Super. 631, 515 A.2d 620 (1986). He then sought leave of the Supreme Court of Pennsylvania to appeal, but that application was denied by order dated December 23, 1986. Commonwealth v. Zettlemoyer, 513 Pa. 34, 518 A.2d 807 (1986). Zettlemoyer then filed a petition for a writ of certiorari in the United States Supreme Court on February 13, 1987, but it, too, was denied on April 6, 1987. Zettlemoyer v. Pennsylvania, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).

On July 17, 1987, Zettlemoyer filed his petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania challenging the constitutionality of the Pennsylvania death penalty statute, alleging errors by the trial court, and asserting that he had had ineffective assistance of trial counsel. In the petition Zettlemoyer set forth that he was arrested while heavily armed in the early morning hours of October 13, 1980, when the police officers heard the gun shots. Zettlemoyer admitted being acquainted with DeVetsco and acknowledged that DeVetsco was scheduled to testify against him in criminal proceedings in Snyder County. Zettlemoyer made no claim in the petition that he had not murdered DeVetsco.

Zettlemoyer set forth that the Pennsylvania death penalty statute is unconstitutionally mandatory and vague, and unconstitutionally shifts the risk of nonpersuasion because defendants must prove mitigating circumstances by a preponderance of the evidence. He also urged that his trial counsel was ineffective in failing to present competent psychological testimony on the issue, central to his defense, of diminished capacity, and in failing to present psychological testimony at the sentencing phase. He asserted that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty and thus violated the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer led to believe that responsibility for determining the appropriateness of the defendant's death rests elsewhere. He further contended that the trial court erred by failing to instruct the jury that if it was unable to agree unanimously that the death penalty should be imposed, it was free to decide by less than a unanimous vote to impose a life sentence under 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1). ³

The district court dismissed the petition in a memorandum opinion and order. Zettlemoyer v. Fulcomer, No. 87-0993 (M.D.Pa. May 31, 1988). ⁴ It explained that the Pennsylvania death penalty statute is not unconstitutionally mandatory because it "mandates a sentence of death only after a jury acting with channeled discretion finds that aggravating circumstances outweigh mitigating circumstances." Id. at 20 (citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985)). The court continued that the statute is not unconstitutionally vague because "[u]nder Pennsylvania law, the Commonwealth has the burden of proving beyond a reasonable doubt every element of the offense in the guilt phase of the trial, as well as proving the aggravating circumstances beyond a reasonable doubt." Zettlemoyer, slip op. at 21. It reasoned that the statute eliminates total arbitrariness and capriciousness and appropriately channels the sentencer's discretion because it "focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed." Id. (quoting Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976)). The court also rejected Zettlemoyer's challenge that the statute impermissibly shifts the risk of nonpersuasion to defendants, citing Patterson v. New York, 432 U.S....