*1 1474 Florida, 258, 242, 428 96 v. U.S. because 3495, 1374 73 L.Ed.2d Proffitt (1976). 2969, 2960, L.Ed.2d 913 49 jury the S.Ct. have skewed “may well instruction scheme of bal jury the with Rather than follow Florida’s misled death and
towards mitigating circum aggravating and ancing discretion absolute respect to its Proffitt, ‘ag- the the existence stances as described regardless of mercy manner evidence”). jury jury The instruction the such a judge instructed gravating’ that risk. sentence of death. precisely virtually to assure a created in this case penalty is mandatory death constitution context of criminal Presumptions in the v. North ally impermissible. Woodson viewed traditionally been proceedings have Carolina, 280, 2978, 49 96 S.Ct. U.S. suspect. constitutionally see State Wat (1976); L.Ed.2d 944 2450, 510, Montana, 99 S.Ct. 442 U.S. son, (La.1982) (instructions 423 So.2d (1979); Francis jury they must return informed which 1965, 85 L.Ed.2d S.Ct. 471 U.S. upon finding ag recommendation death is em presumption a such When held unconstitu gravating circumstances given in a sentencing instructions ployed in tional). given is Similarly, instruction the infecting jury’s the risk of capital death that it fails to so skewed in favor of An instruction magnified. determination ap sentencing discretion jury’s channel appropri presumed be death is Georgia, Gregg v. propriately. by Cf. which tilts scales ate sentence 2932, 189, 2909, 49 L.Ed. S.Ct. mitigat jury aggravating is to balance (1976) (sentencing authority’s discre 2d 859 favor of the state. ing circumstances suitably and limited must “be directed tion the state cannot clear that It is now wholly arbi to minimize the risk so as con- evidence to be mitigating restrict action”). capricious trary and sentencing authority. by the sidered issue, need not disposition of this our Dugger, Hitchcock claims Jackson’s consider other Eddings (1987); Accordingly, we reverse his sentence. Oklahoma, and remand judgment Ohio, Lockett v. (1982); grant shall writ with directions 57 L.Ed.2d upon the state’s part, ed conditioned constitutionality considering the sentencing hearing. right to conduct new scheme, sentencing capital of Florida’s REVERSED in part, AFFIRMED unambiguously declared: Supreme Court REMANDED. part, and factors to be con- While various sentencing do by authorities sidered assigned weights have numerical requirements of Furman
them, are sentencing authority’s
satisfied when guided and channeled
discretion is specific factors
requiring examination CORN, against imposi- of or argue in favor Charles Thomas Petitioner-Appellee, thus eliminat- penalty, death tion of the capriciousness ing total arbitrariness imposition. in its Warden, Diagnos- KEMP, Ralph judge jury given to directions Center, Classification tic and Florida by the statute Respondent-Appellant. ag- various precise to enable clear and No. weighed to be gravating circumstances result, As a mitigating ones. against the States Court United sentencing discretion is Circuit. system that guided and channeled in- of each on the focuses circumstances individual defend- dividual homicide and penal- the death
ant imposed.
ty is to be *2 FROM THE SUPREME
ON REMAND
THE
COURT OF
UNITED STATES
HILL,
Before
GARZA**,
Senior
HENDERSON*
Judges.
PER CURIAM:
26, 1976,
May
Thomas Corn
On
robbery
armed
and mur
was convicted of
Clayton
Superior
Court of
Coun
der
Georgia,
subsequently sen
ty,
and was
Having
found that
tenced
jury in
given
to the
instructions on
unconstitutional,
trial were
Sand
Corn’s
Montana, 442 U.S.
strom
(1979)
and Francis
L.Ed.2d
Franklin,
we remanded
L.Ed.2d
to
the district
with instructions
to
petition
for a writ of habeas
corpus
the State
him within
unless
retried
Kemp, 772 F.2d
time. Corn v.
reasonable
Cir.1985).1
State of
the United States
appealed this decision to
case to
remanded the
Supreme Court which
consideration
for further
us
570, 106 S.Ct.
Clark, 478 U.S.
Rose
(1986). Kemp
Corn,
further
We withheld
opin
pending the
this case
consideration
Kemp,
Kemp and
ion in Bowen v.
(en banc)
(11th Cir.1987)
two circumstances:
applied to an element
the chest. The victim then
ous instruction was
go
not at issue in the
ahead and
off
that was
told
finish her
of the crime
(2)
trial,
obliged by stabbing
the evidence as to the
her
an additional
overwhelming.”
guilt was
fourteen times.
defendant’s
twelve to
F.2d at 548.
introduced
*3
under the first circum-
assessment
Our
“possible”
dence of a
of
mental
the en banc
clearly governed
stance is
disability
pattern
of bizarre
and
behavior
In
Bowen/Dix.
opinion in
this
near the time of the murder. He also
Dix,
both in
and
the de-
presented
testimony
psychiatrist,
of a
insanity
raised an
defense which
fendant
Sapp,
P.
had
Dr. William
who
examined
The en banc
rejected by
jury.
was
supported
him
claims that
did
and
Dix’s
he
question
of whether a
court considered
killing his
and
not remember
ex-wife
that
defendant,
asserting
insanity
an
de-
killing.
at the
he was insane
time of the
fense, places
pre-
intent at issue so as to
expert,
Miguel
The State called its own
Dr.
of the harmless error
clude the invocation
Bosch,
also examined Dix but reached
who
question
The court answered this
doctrine.
differing
conclusion about his criminal
in the affirmative and held that “when a
Bowen,
responsibility
In
for the murder.
insanity
defendant
raises an
de-
criminal
there was evidence which indicated that
fense,
ordinarily
a extremely depressed
Bowen was
and could
grounds
harmless on the
that intent is
not
remember whom he had attacked.
only
U77 for the testified Sapp Dr. As STONE, Raymond on behalf R. testified Dr. Bosch Petitioner-Appellant, unequivocal- Sapp stated Dr. of the State. not aware was opinion, Corn ly that his he knowing what of, capable of nor was he DUGGER, Barton, Tom Richard L. Dr. the murder. time of doing at the Respondents-Appellees. hand, that al- Bosch, stated on the other No. he when was sane though thought he opin- him, offer an could examined United States on the date of mind state about Corn’s ion well, testified Dr. Bosch As the murder. repeatedly that had told that Corn no had any crime and not involved short, the murder. recollection *4 case is suffi- in analogous to that ciently that, under we believe Consequently,
Dix. circumstances, say that
these harmless. error case is REMANDED
Accordingly, the instructions court with Georgia retries State writ unless the specified time within a reasonable court. specially
GARZA,
concurring: I opinion only because
I concur I that must.
feel agree I do not
I want to state opinion Eleventh Kemp, Kemp and Bowen v. sitting in Cir.1987), I am Circuit, other than a circuit Eleventh I own, am bound and I feel
my If sitting. I am of the circuit
law so, would hold was not error was harmless of Corn. conviction would affirm the law of follow
Feeling bound to agree that the harmless.