Frederick Kirkpatrick, Etc. v. Frank Blackburn, Warden, Louisiana State Penitentiary, Respondents

RANDALL, of slow GEE, a few hours as a result fatal within Before RUBIN bleeding. Judges. internal Circuit (La.1983). Kirkpatrick, 1. State 443 So.2d 546 day, protect struggle with Radoste to his friend same the afternoon

On Meridian, Department Mississippi, Police himself. He he hit Radoste over said - south of the pickup truck a burned cover, found glass head then with a dish information, they obtained city. Acting on twice with a knife that stabbed victim Kirkpatrick for arson. arrest a warrant to serving earlier used in the victim had home of Caroline police to the went fell, guests meal. “When the man two living, then Wright, where off,” pistol he said. Other wit- went they en- warrant. When to execute the given nesses testified that arrest, make tered the house varying of the events of the accounts sets, a two television officers observed telling night, including them at various rack, jackets, leather and other some wine times that Faulkner had shot Radoste items. Kirkpatrick had Radoste “killed” of his Miranda being After advised (without how). specifying made a statement rights, Kirkpatrick p.m. night, Thursday At 7:30 follow- that he and Charles he admitted which trial, ing a four-day jury returned truck, pickup had driven Faulkner finding Kirkpatrick guilty of first verdict identified, not then owner had been whose degree pro- murder. The state then that he a remote near Meridian and area posed to sentencing phase start the the truck was burned. had watched while immediately. pro- Just before had a .22 He also stated that Faulkner ceeding began, Kirkpatrick’s lawyer, Thom- Derringer. caliber Ford, overnight recess as moved for day police depart- next The the Meridian because, said, he five of the witnesses six teletype Tam- ment received a from the St. present. not he wished to call were Ford Louisiana, Parish, office many sheriffs persons Kirkpatrick’s named the as absent the truck as Radoste’s. that identified parents, Arthur foster Annabelle and Tammany Deputies from St. Parish went Jones; two of children his common-law After the Meridian examine truck. wife, Billy Kirkpatrick; and Robert truck, the Meridian deputies identified the brother, Kirkpatrick. All six had Eddie police obtained a warrant to search subpoenaed present at the start been to be Kirkpatrick living. house at was which Monday. had arrived. of the trial on None They property there found and seized the above, said, was described which later identified The court “If these witnesses didn’t Kirkpatrick belonging nine-thirty to Radoste. was up Monday morning for at show then arrested for Radoste’s murder. o’clock, a.m., for us to this was time problem, not at particular deal with this made, investigation being While was evening.” forty-five Thursday seven on police Faulkner’s cousin delivered to the explained Kirkpatrick’s lawyer he had Derringer a .22 caliber which said had he required present to be the witnesses given to him Faulkner. Tests been beginning the trial because neither Ra- showed that the bullet removed from Kirkpatrick pay could their ex- he nor weap- fired doste’s head had been from this travel, lodging, for and food. apprehended penses later on. Faulkner was charged. night and “Kirkpatrick talked to them last they given all assurances was verbal Kirkpatrick thereafter tried for first was would, fact, at this today. here And be degree During the in Louisiana. murder they not here.” He stated point, are trial, Kirkpatrick took the stand in his own they the court that he could not assure that, defense and the extent he testified present day the next if the would be in the on Ra- at all assault was involved recessed, “I saying, cannot assure were doste, acting he in self-defense to fend was try.” The anything. merely I can court off Radoste’s homosexual advances. He judge a recess and state trial denied Faulkner and testified that Radoste held phase began. sentencing of the trial got into gunpoint, him at and that he testify process him due called to for tion denied law because The one witness Wright. require Ms. Kirkpatrick was Caroline it did not to find before Kirkpatrick she and Wright imposing said that a death sentence that he had together years killed, kill, lived two attempted intended to or to kill “very good.” her and her children treated legal justification the victim without as is length about his devo- testified at some She required cases. We discuss these him. and their love for tion to her children issues in turn. and, at 10:30 jury retired to deliberate recommendation that p.m., returned with a II. to death. The sentenced be Because the state court record was inad- found, Louisiana statute re- as the equate determining for whether the trial aggravating circumstances: quires,2 two grant a court’s refusal to continuance was engaged in the commis- the offender an abuse of discretion and a denial of due simple robbery at the or sion of an armed process, the federal district held an and the offense was of the murder time evidentiary hearing only this issue. The heinous, atro- especially in an committed testimony presented evidence was the cious, or cruel manner.3 parents, foster Anabelle and appealed his conviction and it Jones, postcon- and the Arthur sought He then a writ affirmed.4 testimony viction of his aunt and his twin court, held an corpus in state which habeas Kirkpat- Ms. testified that brother. Jones the issues. evidentiary hearing on some of trial counsel had communicated with rick’s denied, Kirkpatrick ap- relief was When her and her husband and told them to be court, federal district plied for a writ to the ready to come to the trial when he tele- which, likewise, Although denied relief. telephoned If phoned them. someone had respond and filed no the state did not come, they had told them when to them and district court consci- pleadings, the federal testify would have come to with one twenty-four entiously reviewed each day’s they Mississippi, notice lived by Kirkpatrick’s counsel raised contentions Covington, only four hours drive from Lou- opinion. 48-page and rendered isiana, the trial was held. Ms. Jones where Kirkpatrick several issues on this raises Kirkpatrick’s par- would have testified First, Kirkpatrick contends appeal. very poor, that he had had ents been grant refusal to a recess the trial court’s food, clothing, adequate or not received sentencing phase the trial before Kirkpatrick’s father had died education. deprived him of a fair trial and reliable years nine old. He when determination, sentencing rights granted had lived with the and his twin brother eighth him fourteenth and amend- boys the time the were Joneses from Second, Kirkpatrick alleges that ments. old, their mother had years twelve when repeated “highly use of died, Ms. they were nineteen. Jones until irrelevant, arbitrary and non- prejudicial, testified at the Kirkpatrick. Had she loved denied due record assertions” jury to trial, have asked the she would it made the trial process of law because spare life. his Third, Kirkpatrick fundamentally unfair. observed, however, judge The district ineffec- argues that his trial counsel was testimony her “evidenced that Ms. Jones’ tive, amend- denying him the fourteenth her recalling facts about difficulty in basic right to effective ment-sixth amendment re- Kirkpatrick.” She Last, relationship with of counsel. assistance in trouble with that he had been jury instruc- membered that the trial court’s submits (West 1984) (West 1984) (Loui- art. 905.4 See La.Code Crim.P. art. 2. La.Code Crim.P. 905.3 circumstances). (list aggravating requires at least one statu- that a find siana aggravating tory circumstance before it recom- (La.1983). death). Kirkpatrick, 443 So.2d 546 mends a sentence 4. State judge times, explanation why the state trial had at least once or four police three necessary begin urgently uncertain whether found it so stealing, she was but for immediately. He visited sentencing phase arrested. had of the trial been he had ever her hand, Kirkpat- since he had left times the trial of her about six On the other say Faulkner, when the home, co-defendant, begin not able she was set to but rick’s not visited him had was. She day Kirkpatrick’s, last visit was con- on the same him, had not written his arrest and paraphrase after “To tinued for two months. her or written to telephoned nor had he Court,” federal district him since his not visited had her. She wrote, upon ‘myopic “such insistence court The court summa- murder. conviction for justifiable in the face of a expeditiousness whoie, I find her to rized, did not “[o]n delay render the request for can Kirkpat- for witness very be a favorable presenting empty an [by defend witnesses] ”5 rick.” formality.’ testimony was to the Mr. Much of Jones’ correctly The federal district court effect, testimony his differed but same grant or denial of a continu noted respects in some of Ms. Jones from that in discretion of the ance rests the sound judge. district noted that were may judge trial and his action be success commented, “Mr. Jones testi- district fully questioned only by showing an abuse confidence, he con- fied with far more latitude that he is of the wide decisional occasions. on at least two tradicted his wife Relying upon given. decisions which Kirkpatrick’s troubles He testified found,6 of discretion was the federal abuse police involved traffic viola- with the that the state trial district court concluded Kirkpatrick had returned to and that tions transgressed had even these broad depar- only once after visit the Jones limits. home.” Mr. Jones had ture from their then considered whether The court Mississippi Kirkpatrick was in the known Kirkpatrick’s consti this trial error violated year for a and a Prison at Parchman State rights. doing applied In so it January but he had not tutional half before standard, Kirkpatrick had the writ of habeas Kirkpatrick. been for visited correct “just boylike every error corpus granted before but to correct trouble is not jail couple got I he things. mean It is allowed by a trial court. committed cops picked up, him there. The times down deprivation of a constitutional only for the ticket, speeding or give asserts, however, him a [sic] right.7 The defendant helmet, wearing things like that.” Also court’s denial of a continu that the trial stolen a van. he had right to due his constitutional ance violated other consti Unless some process of law. that, The court concluded incorporated into the four right. tutional overnight judge granted an continu- by process due teenth amendment ance, present have been the Joneses would process is violated abridged, due clause is day next to offer at trial the a defendant if action denies only the court’s testimony, the dis- testimony. Their their ap test fundamentally fair trial.8 The noted, “potentially favor- trict was a trial error plied to determine whether The no Kirkpatrick.” state offered able — U.S. —, 575, 589, Bagley, S.Ct. 105 Citing Ungar Sarafite, 8. United States v. 376 U.S. 84 v. 481, 841, 849, 921, (1964). 3375, 3381, (1985); Lassiter 930 L.Ed.2d 490 S.Ct. 11 L.Ed.2d 87 Cty., Department Serv. Durham Social v. 1146, (5th Wainwright, 633 F.2d 1150 6. Hicks v. 2163, 2153, 2158, 18, 24, 33, 101 S.Ct. U.S. 452 1275, Fessel, Cir.1981); v. 531 F.2d United States 647, 640, (1981) (parental custo 653 68 L.Ed.2d Alabama, (5th Cir.1976); v. 667 1281 Dickerson 839, Estelle, dy proceeding); v. 720 F.2d Skillern 1364, Cir.), denied, (11th cert. 459 U.S. F.2d 878, 1370 — —, (5th Cir.1983), U.S. cert. 850 173, (1982). 142 103 S.Ct. 74 L.Ed.2d 224, (1984); Hicks v. 105 S.Ct. 83 1146, (5th Cir.1981). Wainwright, 1148 (1982). 633 F.2d Mabry See v. John U.S.C. 2254 § 7. 28 2543, 2546, son, 504, — , 81 104 S.Ct. 467 U.S. 437, (1984). 441 L.Ed.2d

279 fundamentally unfair quiry effect, makes a trial in other words with the same probability whether there is a reasonable whether the trial court’s denial of a contin- might prejudiced that the verdict have been different uance the defendant’s “substan- properly rights,” the trial been conducted.9 tial tracking language of Fed- 52(a) eral Rule of Criminal Procedure argues that the federal dis- provides which any error that “does applied wrong analysis after trict not affect rights substantial shall be dis- that the trial it concluded court’s de- 12 regarded.” nial of a continuance amounted to an abuse He of discretion. contends that applicant An corpus, for habeas proof point the burden of should have shift- hand, on the other must more show than prove beyond ed to the state to reasonable prejudice rights, to his substantial because probability complained that the error of did the only habeas writ issues to correct er conviction, quoting not contribute to magnitude.13 rors constitutional pe The applied by test in Chap- Court must, therefore, titioner establish that the v. This contention is man merely error was not an abuse of California.10 improper analysis: Kirkpatrick based on an discretion, grave was so as to amount distinguish fails to between the standards to a denial of his right constitutional applicable to the direct of a federal appeal process:14 is, substantive due applied applications conviction those error made fundamentally the trial unf corpus. for a writ of habeas air.15 If the state court is found to have abridged petitioner’s constitutional ap To obtain a reversal on direct rights, demanding the more review is then peal, a defendant need not show that the exacted,16and, holds, Chapman the bur him denial of continuance denied due prosecution den shifts to the to show that process; he need that the denial show beyond the error was harmless reasonable cases, an abuse of discretion. In these was doubt.17 an abuse of discretion is defined as a trial “materially prejudice[s] applied error that the de appeals tests direct 11 employ fendant.” Courts also describe this in- and in habeas cases the same 9. See Lisenba v. 219, 236, California, prejudicial rights 314 U.S. 62 the substantial of the de- 280, 290, 166, (1941) ("In fendant.”). S.Ct. 86 L.Ed. 179 process guar order to declare denial of [due supra, anteed the fourteenth we must amendment] See note find that the absence of fairness [fundamental] trial____”) added); fatally (emphasis 575, 589, infected the Ungar Sarafite, 376 U.S. 84 S.Ct. 97, Agurs, 841, 849, 921, (1964); see also United States v. 96 11 L.Ed.2d 930 Skillern v. 2392, (A (1976) Estelle, 1983), S.Ct. 49 L.Ed.2d 342 defendant’s 850 Cir. allegation denied, — U.S. —, that his fifth or four amendment L.Ed.2d 83 process teenth amendment to due (1984); Wainwright, Hicks v. prosecution’s Brady Alabama, violation of (5th Cir.1981); violated Gandy only if the omit (5th Cir.1978). shows a constitutional violation F.2d 1318 ted evidence creates a "reasonable doubt” that — correct.). 15. United States v. guilt —, the verdict of Bagley, U.S. 3375, 3381, 87 L.Ed.2d 10. See Annual Review of Criminal “Fourteenth Supreme Court and Procedure: United States United States v. 1983-1984,” Miller, Appeals Geo.LJ. Courts of Walker, (1984); Wright, v. 621 Federal Practice and See also United States 774 3A denied, 302, 163, (5th Cir.1980), at at § cert. 450 Procedure: Criminal 2d 854 855 § F.2d 168 1000, 1707, (1981). (1980). Phillips, 101 S.Ct. See also United States v. U.S. 335 Walker, 971, (5th Cir.1981), generally F.2d United States v. 772 664 F.2d 1027 n. 84 See 1136, 2965, (5th Cir.1985). U.S. 102 S.Ct. 73 L.Ed.2d 1172 457 Castillo, (1982); v. 615 F.2d 1354 United States United States v. 878, (9th Cir.1980). 593, Jones, 883-84 596 ("Even 1984) if this denial a continu- [of Cir. Ackerman, 1344, error, v. 704 United States it would not have been constituted ance] (5th Cir.1983). showing the error was 1349-50 reversible absent a that

280 significant probability there no reasonable they differ two words (1) proof required the amount of respects: testimony changed the Jones’ would have reversal, (2) party shoulders and which were, concluded, They he the verdict. “bad appeal, direct it is proof. On the burden of Kirkpatrick.” They had had witnesses for to that a for a defendant show less difficult 1976, him little communication with since rights his substantial prejudiced trial error They when he left their home. had not show, proceeding, in a habeas than it is to serving visited him while he was sentences abridged his constitutional that the error Mississippi penitentiaries. and Louisiana fundamentally trial rendering his rights by inconsistent, testimony they Their and however, If, constitutional error is unfair. appeared to lack concern about his future. shown, has the burden prosecution not, While did federal harmless be- the error was showing that evidentiary hearing, produce district court doubt, ap- in direct while yond reasonable who, alleges, the other witnesses he would showing not peals the burden have testified his behalf at the sentenc- he suffered sub- made but that error was ing phase way in such a thereby on the defend- is prejudice stantial different, might the verdict have been he ant. transcript did introduce the of the testimo- therefore, must establish Kirkpatrick, given by his ny his twin brother and aunt discre- error was an abuse of that the trial corpus hearing. His at the state habeas his constitu- amounting to a denial of tion brother, however, at- twin would process— due right to substantive tional if the court tended trial even fundamentally made his trial that the error granted a continuance because at that point Chap- does the Only unfair. at that enlarged from federal time he had been apply. Although error test man harmless custody on his not bond conditioned applied to some viola- Chapman test is leaving Mississippi he had been unable process,18 due generic tions of substantive get Kirkpat- condition. to a waiver of this application incapable of it is its nature have testified to the de- rick’s aunt would sentencing at the process to a due violation Kirk- plorable conditions under which the stage. petitioner must show Because went patrick family to establish lived before twins the harmfulness of the error violation, ap- subsequent family. the constitutional to live with the Jones test harmless-error plication of a second sentencing phase of a Kirkpatrick suc- superfluous. If would be give literally The state must trial is vital. that he was denied cessfully demonstrates opportunity, however vile failure the defendant process the trial court’s due because just he has been convict was an abuse the crime of which grant to a continuance egregious ed, qualities as to render his discretion so demonstrate his human to fundamentally sentencing might mitigate determination any circumstance unfair, obviously could not then the error lenity.19 incline the culpability or initial, Thus, our harmless. be shown be present the denial of Whether refusal only, is whether the inquiry of a deprives a defendant such evidence fundamentally fair Kirkpatrick a denied availability right turns on constitutional sentencing determination. testimony. the district Given of such testimony, the Jones’ analysis of court’s the trial concluded that The district court record, una- by the supported which fundamentally unfair because was not 973, 2964, (1978); 199, Woodson v. See, 989 Maggio, 57 L.Ed.2d e.g., Garland v. 304-05, 280, Carolina, (5th Cir.1983) (Chapman error test U.S. harmless North 428 203 944, 2978, 2991, Sand- also applied instructions violative of See L.Ed.2d 633, strom). Louisiana, (Harry) v. Roberts (1977); 1993, Roberts L.Ed.2d 637 S.Ct. Oklahoma, Eddings 455 U.S. See Louisiana, (Stanislaus) S.Ct. 428 U.S. 869, 874, (1982); Lock- 71 L.Ed.2d Ohio, ett v.

281 brother, present signifi- and the limited a claim of constitutional vailability of his testimony, they prejudicial we are un- cance unless were so his aunt’s that scope of proved Kirkpatrick’s state court Kirkpatrick has trial was rendered say to that able probability fundamentally meaning unfair a reasonable within that there was of the a continuance would fourteenth amendment.22 There is granting that that such unfairness if prosecutor’s him adduce evidence permitted to persistent hence remarks evince pro- the verdict and “either and have altered would his sentenc- nounced misconduct or failed to establish that ... evidence he has (in probability) was so that fundamentally unfair. insubstantial ing but for the remarks no conviction would III. attacked, have occurred.”23 When thus prosecutorial comments are not considered closing in Kirkpatrick contends that isolation, in but are evaluated in the con- prosecutor at both arguments made including text of the entire trial as a whole sentencing phases guilt-innocence and prosecutor’s closing argument.24 entire trial, prosecutor made irrelevant of the calculated to inflammatory statements A. STATEMENTS DURING jury’s prejudice. Specifically, appeal to the GUILT PHASE prosecutor, Kirkpatrick complains that guilty, referred arguing in for a verdict Kirkpatrick singles egre out as an allegedly past falsely to lives gious example prosecutor’s of the miscon personal wrongly referred to took and prosecutor allegedly duct a statement the Kirkpatrick also character of the victim. arguing guilt. in made for a conviction of later, arguing complains that transcript prosecutor’s closing The attorney improper- district punishment, the argument guilt phase at the the trial the defense of oth- ly discussed the law of following paragraph: contains the ers, fight improperly exhorted the to do, you you have to if want to What death, sentencing Kirkpatrick crime acquit acquit, you if want to Freddie compared rights prejudicially Kirkpatrick, you’ve got say T believe putative rights of the the defendant to the today.’ And everything he said even Kirkpatrick argues improper that victim. though of it doesn’t make sense some argument by prosecutor so infect- impossible, though some of it is and even to render his ed the trial unfairness as with go. him give him and let And the benefit process. a denial of due conviction Mr. Radosti and for- forget about [sic] get all of the other witnesses about proceedings, corpus In habeas Kirkpat- past forget about the lives employ the appellate federal courts do not has took.25 rick supervisory power they exercise broad prosecutor did According The state contends trial courts.20 over the federal “past not, refer to lives may ly, federal courts a habeas “past lies that has took” but impose the same stan corpus proceeding, transcript is in error. and that the ap has told” upon prosecutors they dards correct the record have proceedings to direct No ply prosecutors federal cases on however, taken, Louisiana decision- remarks do not been appeal.21 354, (5th 637, Maggio, F.2d 359 DeChristoforo, v. 692 Donnelly 642- v. 416 U.S. Fulford 111, 431, 43, 1868, 1871, grounds, other 462 40 L.Ed.2d rev’d on 94 S.Ct. (1983). (1974). 76 L.Ed.2d 103 S.Ct. Estelle, Whittington v. Cobb Wainwright, n. 1 denied, (5th Cir.), 464 U.S. cert. Cir.), L.Ed.2d 361 1421; Estelle, Whittington 704 F.2d at Estelle, n. Houston v. Emphasis added. present In federal for would permits.26 apparently law [co-counsel defendant] al transcript pri- conniption is a fit. the “deemed have had proceedings, of the testimo- correct statement ma facie a attorney] prosecuting experi- is too [The enced, had,”27 proceedings but the ny taken and trained, too too skilled and too upon proof that may be corrected record intelligent to have made such a state- a correc- is Such transcript incorrect.28 the ment. This statement alone would have by the be made presumably tion should Further, in a resulted mistrial. [his] judge.29 English albeit some better than considerably the tran- of the correctness of mine than that as The issue is better during script reporter. not raised by was noted the was not then the contention appeal for is instead of This Court convinced that remark was in- made that the “Forget past saying about the lives that Hence, to correct no motion flammatory. took,” prose- Kirkpatrick has what [the transcript While was made. the state trial cuting attorney] “Forget said about was for correction of procedure has a Louisiana lies,” 1-i-e-s, past “that the appeal pending, is transcript error while has told.” no Procedure contains of Criminal its Code finding supported by This the judg- after a provision such correction a in which the words were used and context final, and Louisiana ment has become part prosecutor’s argu the earlier considered whether courts have never emphasized in number of ment which he changed. might then be record alleged by Kirkpatrick. While lies told however, transcript, does not become The other homicides not evi comment on If is final. it is gospel once the conviction im grossly indeed have been dence would error, proce- aby correctible it should be proper, finding that such a statement prescribed that for earli- analogous dure uttered, by judge made not in fact was convictions, is, by a motion to cor- that er trial, should be con had conducted who rect, trial court. Here no addressed to the transcript. a correction of sidered filed, the cor- the issue of motion was corrected, statement not im Thus was fully con- transcript rectness of proper. during corpus the state habeas sidered had conducted judge who complains also parties were the state trial. Because both improperly referred prosecutor state fully of the issue and evidence aware Radoste, victim, dur Mr. character of the adduced, post-conviction state stage of guilt ing argument sufficiently appear to to be proceedings us The There were two references. trial. our reliance on them. to warrant reliable the most severe: following was hearing, the man who post-conviction prefer to think that here’s a

At the state I responsible that he did not all of his attorney testified apparently had been defense quoted apparently in the has the words man that Here’s a remember life. transcript used. Here’s a man that anybody. had been never hurt such a opinion he “did not hear man that in his said Here’s a helped raise sisters. property, He continued: works, as this.” care of his statement takes other is concerned about apparently made, I am con- been Had this statement appar- gentleman, apparently my people, I come from have vinced that would his, ently kind man. chair, from counsel] [defense (2d Cir.), See, Domingue, e.g., So.2d State v. (1965). (La. 1974). 753(b) § 28 U.S.C. 151; Smith, F.2d at States v. United 20:183, Procedure, at 305 § L.Ed. Federal Smith, United States v. Carter, Cir.1970); F.2d 220 United States prose- give thought. were made some hard These comments Kirkpatrick’s refute cutor in an effort to give thought. You have to it hard And off Ra- that he acted to fend contention right protected. we have to be advances, supposedly homosexual doste’s repeated This theme in slightly was differ- Considering gunpoint. the nature made at expression: ent defense, do not think that the we always And it sort of bothers me were intended to prosecutor’s remarks way always and it my comes to mind in jury’s sympathy. they Nor were evoke the know, you these situations that we’re— were, instead, They a measured excessive. poor nobody old Mr. Radoste didn’t have response to an asserted line of defense. argue there to for him. He didn’t have a recognize that references While we trial. He didn’t have twelve citizens may improper,30 be we victim’s character living called in to sit in that room and argument made here to be do not find the decide whether Freddie and Charles unfair. they could do what wanted to with him. PHASE B. SENTENCING lawyer, you He didn’t have a know. He closing argument In his at the sentenc- appeal. Kirkpat- didn’t have an Freddie trial, prosecutor ar- ing phase of the yet, is, rick did it all. And system our gued: worrying argu- we’re here about and law, any if of us Louisiana one ing Kirkpatrick.

Under over Freddie enough, or would have been fortunate The federal district court did not discuss enough might it unfortunate as propriety of these In- statements. out, up on that turned to have walked stead, it said that the record did “not dem- died, we just scene before Mr. Radoste persistent pronounced onstrate either or every legal right in the would have had Moreover, sup- misconduct. the evidence people away, to kill world to blow those porting Kirkpatrick’s conviction is not in- now, spot____ you on the But them both The record demonstrates that substantial. see, guilty they you want to make feel Kirkpatrick received a fair and constitu- when, legal pro- in accordance with the trial; there is no tional doubt of his cess, you’re upon decide what called guilt____ light against In of the evidence You have no punishment fits the crime. him, complained of do not the statements guilty. reason to feel a denial of fundamen- rise to the level of prosecutor Kirkpatrick argues that tally fair trial.”31 impermissibly jury’s focused the at- thus of each This court has held comments on the of defense of others as tention law type inflammatory not so as to constitute giving penalty, the death in- the basis mitigating a fair trial. We first consider the aggravating denial of stead of case, In in the which is the the defense of others. circumstances statements about constitutionally required basis. application for feder- Maggio,32 v.Willie relief, the Fifth Circuit con- al habeas his ar- prosecutor In addition the ended prosecutorial argu- an identical sidered duty to the gument with an invocation argument im- found this ment. The court victims of crime: re- proper it “misstates law because your your Let mind think about obli- capital pun- garding Louisiana’s scheme of Radoste’s, gation to other Mr. to other ishment, does not allow which your mind think victims of crime. Let simply impose penalty death because you cope Freddie about how with the used in de- world, force could have been you lethal of the because Wainwright, Estelle, Citing Higgins Vela v. denied, (5th Cir.), 400 U.S. 178 145, rt. ce 27 L.Ed.2d (5th Cir.1984). 32. 737 F.2d 1372 there, However, circumstances you’re the court are going to of the victim.”33 fense chair____ get the electric did prosecutor’s remarks found not sentencing part of the trial render the Kirkpat- comments at argu- It viewed fundamentally unfair. rick’s trial are egregious. no more conclud- a whole and ments and evidence ed The prosecutor impliedly also condemned death recommendation jury’s Kirkpatrick’s invocation legal pro- improper com- by the influenced cess. Kirkpatrick argu- contends that this aggravat- had found two ments: infringed ment right counsel, his his mitigat- little and there ing factors34 right to trial jury, and to an ing evidence. automatic direct appeal from a sentence of death. argument prosecutor’s the While jury the it distracted improper because was In the recent case of Caldwell v. Mississ aggravating concern—the proper its from and ippi,38 Supreme the Court a considered by Louisi mandated factors mitigating prosecutor’s argument at sentencing the was scheme—it punishment capital ana’s stage of a bifurcated case that led the trial render to as prejudicial so not the jury to believe that responsibility for Willie, the inAs unfair. fundamentally determining the appropriateness of the at the factors aggravating two jury found death sentence lay elsewhere. The Court trial.35 Kirkpatrick’s of sentencing phase held argument that this rendered the sen observed, the court district federal As the tencing hearing fundamentally unfair. In far guilt was Kirkpatrick’s of evidence Caldwell, however, prosecutor the argued insubstantial. from to the jury that, if it were to return a death, the sentence of the complains of decision would auto next duty. matically by be reviewed jury’s Supreme the the of invocation prosecutor’s Court. This was response serve a calculated by could remark this argues that He prosecutor the to the jurors closing argument of the of passions the to arouse counsel; defense death it was an the effort to “mini for to vote them persuade and However, mize jury’s the importance sense of of its reasons. improper for penalty role.”39 This case is by “war not remarks, to a controlled akin prosecutor’s the In arguing than Caldwell. egregious Kirkpatrick be less were argument, crime” death, found sentenced to the prosecutor’s state we arguments similar Caballero,36 designed comments were not to shift the v. States In United proper. burden of closing jury. ar decision from the the held the the requested he in which gument, recognize We that it is improp find and there go out courage to “have prosecutor er for urge “to that a criminal permissi to be guilty,” Defendants these ble defendant’s exercise constitutional re In enforcement. law for plea rights ground is a discrediting for his de decision, v. Brooks Circuit Eleventh cent fense,” imply and to system “that the cod following found majority Kemp,37 dles criminals providing them with more deter for argument as an proper argument rence: procedural protections tims.” tor’s than their vic 40 However, prosecu we view the penalty remarks in death this case an attempt as bring back can You you illustrate Brooks, and for the defendant’s William total tell you can and can him, disregard rights victim, like of the criminal rather every other tell Mus- attempt than an and to discredit for to Columbus come you if crime, put his proof. decision to commit state to its you and County, kogee argument Even if punish- inappropriate, that’s crimes it those it’s one and aggravating sentencing not make the death, if the did un- and able 33. Id. 38. — U.S. —, 1390. 1984). (West 905.4 art. Crim.P. See La.Code 39. Id. at —, 105 S.Ct. at 86 L.Ed.2d at accompanying note supra, text See (11th Kemp, 762 Brooks v.

36. Rushen, (5th Cir.1983). Cir.1985) (en banc). F.2d 126 also Bruno See — —, 762 F.2d 1383 whole, as a Finally, Kirkpatrick’s trial, when viewed record sary fair. it is not neces- Kirkpatrick’s for me to closing arguments allega- review each improper. tions of ineffective assistance individual- ly.” The federal district then con- cluded, “The supporting evidence Kirkpat- IY. rick’s conviction and sentence is substan- his counsel were contends tial.” grounds alleges numerous He ineffective. contention, arguing that support of his Washington42 In Strickland would have taken anoth- competent counsel the standard Court announced (1) include their failure to These er course. seek determining counsel in a when for police suppression of evidence as to ineffective has been so criminal search of their obtained a a To succeed on relief. federal warrant ground Mississippi on the residence counsel ineffective assistance claim of arson, his for for arrest the warrants later object his both that must demonstrate defendant invalid; (2) murder, facially were performance was deficient counsel’s improper prosecutorial allegedly prejudiced so defense error statements; (3) investigate interview proof If of one fair him a trial.43 deny to element is trial; (4) sup- prior to move witnesses press not ex lacking, court need statements; (5) con- inculpatory oral the other.44 amine of the adequate dire examination voir duct talesmen, including failure to rehabilitate satisfy prong To the first of cause because excluded for those talesmen test, a defendant must dem Strickland’s penalty; toward the death their attitude of (6) onstrate that his made so counsel errors he testified Kirkpatrick before prepare that he as the serious did not function trial; (7) jury instruc- improper object at tions; guaranteed by counsel” sixth “effective the (8) meaningful brief on file a proper amendment.45 “The measure of at the Louisiana appeal to direct torney simply reason performance remains the basis of Many of these form Court. prevailing professional ableness under relief. Kirk- independent claims for other strong presumption There is a norms.”46 the workload of also contends that patrick Thomas counsel rendered effective as that defense Ford, principal defense coun- the that fell the sistance and his conduct within sel, so excessive public defender was as range professional assista of reasonable per se ineffec- his assistance to render nce,47 any given in case are there tive. provide ways to effective assista countless whether, determine on nce.48 The must evidentiary was held anWhile circumstances, all the the light in the the post-convic- in the contentions state these are acts or omissions outside identified district court the federal proceeding, tion ass range professionally competent wide judge correctly concluded recognize, how The court must istance.49 findings of any express failed to make ever, counsel’s “reasonableness obliged to that it was fact and historical substantially or may be determined actions influenced of the independent evaluation make record. state by the defendant’s own said, “Be- court then district ments or actions.”50 the entire and considered I have read cause 759, 14, 1441, 14, U.S. 41. The federal district cited 771 n. 90 S.Ct. 1449 n. Fulford 354, 763, Maggio, (1970) (the rev’d L.Ed.2d n. right to coun 2261, grounds, sel is 462 U.S. on other to effective assistance of coun sel). L.Ed.2d 42. 466 U.S. Strickland, 46. at —, 104 S.Ct. at 80 L.Ed.2d at 694. at —, 43. Id. 104 S.Ct. at 80 L.Ed.2d at at —, 47. Id. 104 S.Ct. at 80 L.Ed.2d at 692. at —, 2069-70, Id. 104 S.Ct. at 80 L.Ed.2d at Id. 699; Maggio, Willie Id. at —, 80 L.Ed.2d 104 S.Ct. at 45. Id. Richardson, 397 See McMann v. also interpreted require proof Enmund successfully if the defendant Even participated that “the defendant either di- performance by error or deficient shows an counsel, rectly in killing personally or -had an must show he also that counsel’s Thus, intent have commit murder.”53 we prejudicial error standard to the defense. The may held that a defendant not be prejudice proved which is participation sentenced to death for high; defendant has the burden of felony in the course of which murder was showing proba “that there is a reasonable committed by another felon.54

bility that, Before a for counsel’s unprofessional may impose uniquely state irrevocable sentence of cus on the severe errors, proceeding the result of the would death, it must “fo- A proba have been different. bility reasonable personal culpability intent and probability ais sufficient to under himself, and not merely defendant mine in the confidence outcome.”51 that of an accomplice.”55 conclusory re court’s The district The Louisiana trial court charged conten pretermits the record view of principals the law of as follows: whether as serious: view tion we persons All concerned in the Kirkpat commission the search of obtained evidence crime, of a present absent, whether or his com residence, established which rick’s they directly whether commit the act have been robbery, would least plicity at crime, constituting commission, it, aid and abet in its suppress moved to had counsel admitted and, directly or or indirectly of exclusion so, effect if counsel crime, procure or another to commit received the of the district court While evidence. no assistance pleading, twenty-four principals guilty are and are or by brief the state from charged. crime carefully reviewed each it viola alleged constitutional The court charge clearly give entitled to this Nevertheless, Kirkpatrick. tions raised we do not with respect to the offenses of arm- for us appropriate it think ed and simple robbery56 enumerated —the whether determination factual make the felonies argued that the state or was deficient counsel committed during Radoste, his murder of thereby preju Kirkpatrick whether supporting allegation thus gree its of first de- these remand for Accordingly, we diced. determinations, not, murder.57 The court did how- conformably made to be ever, permit jury the to find The dis Washington v. Strickland. with guilty of degree first murder solely be- evidentiary an cause of any may participation hold his in the robbery trict court or, or sufficient, make may is record if the guilt. vicarious It then properly already ad evidence solely on the findings charged jury requirements the on the finding murder: duced. Kirkpatrick guilty degree of first V. In order to convict the defendant of first Florida,52 Su degree murder, v. find, In Enmund you one, must that amend eighth held that the the preme Court defendant killed or was a principal in for ac killing Radoste; sentence of Steven and, two, a death proscribes ment murders, stating felony that acted with a liability in specific complice defendant imposed may kills, intent harm; be to kill great or punishment bodily capital that inflict attempts and, three, himself that only kill, one who defendant or killing place was engaged principal take or was a intends or We employed. attempted commission or be will commission of force lethal 55. Reddix 51. Id. 2068, Thigpen, v. at —, L.Ed.2d at 104 S.Ct. at 80 See also Jones Thigpen, (5th 741 F.2d 805 Cir.1984); Lucas, Bullock 244, 247 Cir. 1984), granted nom., cert. sub Bullock, Cabana v. 3376, 3368, 797, 73 S.Ct. 102 U.S. — —, 105 (1982). L.Ed.2d (1985). 56. La.Rev.Stat.Ann. (West 1974). 14:24 § See 53. Reddix v. Thigpen, Watson, — U.S. —, also State v. 397 So.2d 1342 n. 10 Cir.), denied, cert. (La.), L.Ed.2d 331 Id. (West 57. See Supp. La.Rev.Stat.Ann. 14:30 § 1985). Reddix,”61 we, dix’s death (Em- robbery. therefore, robbery simple or armed reversed Red- added.) sentence. In phasis Bullock v. Lu- cas,62we followed Reddix. jury in- Kirkpatrick contends In Clark v. Louisiana State Penitentia- test. did not meet the Enmund structions prisoner sought ry,63 a Louisiana writ jury might charged error is that the The corpus alleging habeas that he had been Kirkpatrick guilty even if he have found sentenced to death in violation of Enmund. great bodily harm intended to inflict degree Louisiana’s first murder statute re- killed Radoste and on Radoste. Who quires prove the state to the defendant’s intention of had the whether specific intent kill great bodily or inflict killing him were contested issues. As the injury.64 Because the trial court’s instruc- found “there Louisiana Court permitted tions to “attribute the as to who no conclusive evidence [was] conspirator murderous act of one to the actually Mr. shot Radoste.”58 did, however, other,” we reversed Clark’s conviction. Ra- testified that he strike the head and then stab him doste over cases, therefore, In none of these did we twice. consider ed, must be whether instruct- sentence, imposes it the death before in three raised been issues have Similar force that the intentional use of lethal Reddix v. have considered. that we cases essential or that the deliberate infliction of application the habeas involved Thigpen59 great bodily harm that results in death is Mississippi’s under convicted prisoner of a imposition of the su- insufficient for defendant, statute. capital murder penalty. preme Reddix, the attention had attracted “slipped up be- accomplice victim while hind him three de Neither Enmund nor our watched, brutally and, as Reddix interpreting cisions it makes the use of the times head three or four him hit over talismanic. En words “lethal force” wrench, crushing skull.” awith Stilson may teaching person ’s is that a mund store. the victim’s had then robbed The two death-dealing for the be sentenced to death might it jury that charged the The court culpability another unless he shares act of murder if it capital guilty of find Reddix “lethal force” for the as however, The words homicide. any killing “done with found clear, employed in Enmund make it en- by any person death design to effect defendant will not be up- robbery.” We in the crime gaged contemplates lethal if he “that absolved force will be murder, conviction Reddix’s held employed by others.”66 not affect Enmund did reasoning that im penalty may not “be the death While of- any substantive definition state’s fense, ...,” felony murder it posed for vicarious may be participates in a course to was free Mississippi and thus knowingly imposed on one who if murder a capital defendant of convict a of action that con by any co-defend- was committed murder force, if of lethal even templates the use an enumerated during course of the ant Imposition of triggerman. one is not the however, concluded, that Mis- felony.60 We instructs, de penalty, death Enmund the pends a defend- such not sentence sissippi could degree “on the of defendant’s] [the from specific intent the death absent ant to intentions, expecta culpability [his] —what juror reasonable Because Enmund. “[a] tions, and actions were.”68 instructions heeding carefully court’s] [the himself acts defendant When the accomplice’s] fairly could conclude [the bodily great inflicting imputed to of may be the intention murder with intent to commit 58. State v. 63. 694 F.2d 75 (La. Kirkpatrick, 443 So.2d 1983). 64. La.Rev.Stat.Ann. § 14:30 (West Supp.1985). — 59. (5th Cir.), cert. U.S. —, Clark, 694 F.2d at 76. 60. Id. at 708-09. Enmund, 458 U.S. at 102 S.Ct. at 73 L.Ed.2d at 1152. Id. at 709. 67. Id. granted sub rt. F.2d 244 ce — U.S. —, Bullock, nom., Cabana v. Id. at 102 S.Ct. at at L.Ed.2d the victim was a either killed or requires, proce- harm and principal by Constitution dural means of killing engaged in in his and was safeguards judicial and vigilance, as- in the commission of principal imposition or was robbery, bility. surance that the death of is not personal culpa- has with product he acted the a caprice.1 of arbitrariness or At might force be em- hearing case, Indeed lethal in sentencing capital the inflicting intention jury’s without the ployed role is to focus aggravating on the example, harm, by the use bodily for great of mitigating and circumstances of the crime. to at the victim without a firearm shoot In reviewing proceeding, inquire such a we his death or serious intending to cause injury. When a defendant subjec- by whether the was motivated personally in- objective tive rather than in factors reach- bodily harm and suc- great to inflict tends ing its If prosecutor’s argu- decision. the death, personal in- producing in ments ceeds make a rational assessment the culpability and is suf- jury unlikely, prosecutor individual engages volvement or the in capital misconduct,”2 the sen- ficiently “persistent pronounced established or unusual. sentencing is not cruel and then hearing tence the is fundamen- tally unfair. that, testified after head, the he striking the victim over notes, each opinion while majority As the in Radoste twice. knife used stabbed improper, we arguments was three was to the hilt in the the assault victim’s buried them, cases, have, each of held in other chest the victim had severe alone, pernicious deny as to not so standing the accused prosecutor po wounds. Both wounds case process. abdominal were In this the not due tentially gunshot lethal. The was but sought to arouse grace coup de cannot be times, once, con- and we should three pull pistol exonerated even if he did not of the entire in the context sider them trigger. We conclude not argu- attorney’s The district proceeding.3 charge proper but that the evidence the tran- only four pages ment covered

was sufficient to warrant conviction. therefore, less than and, likely took script, he span, made In so short a five minutes. three reasons, judgment For these jurors’ emo- appeals wrongful insofar as it is AFFIRMED district denies except may not each itself tions. While grounds asserted on of the relief all together jurors’ prejudices, awakened they coun- alleged ineffectiveness so, doing they capable of were suppres- failing to seek sel, particularly irrelevant matters Mississippi. directed attention seized the evidence sion of cir- denying aggravating relief of the judgment determination We VACATE imposi- proceedings alone further warranted REMAND for cumstances penalty. tion of the death opinion. this consistent with that issue punish- scheme of “Louisiana’s RUBIN, B. Judge, ALVIN Circuit dis- impose jury to not allow the ment does ... part. senting penalty simply because lethal the death respectfully I from dissent Part IIIB of in defense of been used force could have the opinion, prosecu- the tor’s remarks which holds therefore, have, victim,”4 and we held sentencing did of the prosecutor’s invocation process deny not due he when for it improper,5 di- grossly defend others any Even if one was sentenced to death. con- proper from jurors their verts the egre- comments mitigating cir- aggravating and cern—the cumstances argu- of gious, the cumulative effect his of the crime.6 deprive ments was sufficient to the accused sentencing proceeding rational to of the the exhorted attorney also The district process him. which due entitled are Jurors fight on crime. the join to They are policemen. nor warriors neither fundamentally dif- death is so Because their task It is the facts. of judges judges, punishment, the kinds of ferent from other in iso viewed are not to be argument cutorial See, e.g., Stevens, 410, 413, 1. Zant v. 456 U.S. 102 lation). 1856, 1857, 222, S.Ct. 72 L.Ed.2d 1372, (5th Maggio, 4. Willie v. F.2d 354, Maggio, (5th Cir. Fulford 1982), grounds, rev’d on other 462 U.S. 76 L.Ed.2d 794 Id. Wainwright, See Cobb v. 755 n. opinion, majority Cir.), supra, following See text note (instances (1980) prose L.Ed.2d of decide, Judge fully with not ferret out evil. As decision is consistent to to but our observed, argument an Johnson has of them. Frank each is notori- jurors enlists the a cause held an Lockett v. Ohio death Ohio1 ously inflammatory: penalty statute unconstitutional it because only characterization of the Not defendant as an the “criminal element” does the of three enu- allowed consideration merated anonymous member of mitigating and thus circumstances deprive him of permit con- did not the full individualized required consideration the individualized prior ty, by mitigating required of factors sideration penal- the of the death imposition to Eighth the Fourteenth Amendments. has suggestion the that a “war” Eddings v. Oklahoma2 vacated a death declared, implica- fight and the attendant been tion that removes from the imposed person a sentence sixteen who it, “duty” jurors a to of years old at the time the crime jury the of re- sense the trial had refused to con- because decision that makes sponsibility for their past youth’s of the sider evidence troubled exercise of appropriately for an bounded the mitigate offered to sentence. when their discretion.7 mitigating held that all relevant The Court evidence must be considered. error, implied third his The grant to a con- Kirkpatrick’s invocation refusal of The trial court’s condemnation of the ex- process equally egregious.8 equivalent neither to the legal is tinuance to the mitigating evidence nor clusion of public have inflamed popular media The specific evidence to of such resentment, limitation factors. rage, if not at the with opinion fact Mitigating was in evidence while, to the accused protection accorded of a continuance no) If denial (or presented. view, popular there is less assert concern any Kirkpatrick’s of constitutional To violated rights for victim. process, due not right to rights, it was his be- prejudice against accused invoke from cruel and inhuman right to be free process law his is to due he entitled cause punishment. to at the being is strike condemned before protections ac- process due fundamental persuade to Similarly, Kirkpatrick seeks amendment. fourteenth corded prosecu- apply to our review us to The cumulative effect of the district at- by the exacted remarks the standards tor’s torney’s fatally comments infected the sen- than the less Amendment rather Eighth tencing hearing criteria, and rendered fundamen- citing it as au- process stringent due tally unfair. They injected improper con- Mississippi.3 As we thority Caldwell jury’s deliberations, siderations into opinion, un- panel in our Caldwell explained held dermining constitutionally impermissi- ability “it is jurors’ weigh to dis- passionately ing on determina- aggravating rest a death sentence mitigat- ble to led factors of a sentencer who has been the case and reach made a tion deter- responsibility rational determination. Accordingly, I to believe mining of the defend- proper appropriateness would remand sentencing for a hearing. It does not rests elsewhere.”4 ant’s death follow improper remark every other FOR ON SUGGESTION sentencing phase prosecutor by a prejudicial EN per BANC se so REHEARING case balance. against the same weighed be OPINION majori- concluding paragraph The PER CURIAM: states, ty opinion Caldwell case, sought minimize In this the State rehearing ar- petition for responsibility for de- jury’s sense of the termining improper standard applied that we gues of death. appropriateness er- alleged constitutional review the say that we cannot this Because applica- court trial. rors tion effort decision, sentencing no effect on the deci- relies on three Court meet standard decision does opinion, sions, original in our all referred to 2. 455 U.S. Kemp, Brooks v. (1982). (Johnson, J., 1985) dissenting). Cir. Rushen, See, e.g., Bruno v. (1985). S.Ct. 2633 — —, U.S. 302, 83 L.Ed.2d 236 Id. at 2639. Eighth Amendment reliability that of

requires.5 applies test “no effect” opinion In our jury’s minimize the effort

to the state’s every other not to responsibility, sense argument. improper in our emphasize as we did Finally, we as a that “when viewed opinion original closing arguments was

whole, each of is on this final conclu- improper.” It not sion ultimately rest. that we Judge in panel nor No member having of this Court service

regular active requested that hearing en banc polled on re- the Court be (Federal Appel- Rules 35), sug- Rule and Local Procedure late gestion NIED. Rehearing En Banc is DE- application for re- reasons For these Judge is DENIED. panel original dissent. to his adheres Rubin America,

UNITED STATES

Plaintiff-Appellee, KIMMEL,

Richard H.

Defendant-Appellant.

No. 85-4030. Appeals,

United States Court

Fifth Circuit. 27,

Nov. supplied). (emphasis

5. 105 S.Ct. at 2645

Case Details

Case Name: Frederick Kirkpatrick, Etc. v. Frank Blackburn, Warden, Louisiana State Penitentiary, Respondents

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 16, 1986

Citation: 777 F.2d 272

Docket Number: 85-3029

Court Abbreviation: 5th Cir.