Nollie Lee Martin v. Louie L. Wainwright

McWILLIAMS, Before SETH and Circuit CAMPOS,

Judges, Judge.* District

CAMPOS, Judge: District appeal

This is an from the district court’s summary

grant judgment in favor of

Plaintiff-Appellee, State Farm Mutual Company. Automobile Insurance State MARTIN, Nollie Lee declaratory judgment Farm had filed a ac- Petitioner-Appellant, asking tion decide their policy’s insurance “household exclusion” coverage clause1 liability excluded for any WAINWRIGHT, Louie L. automobile accident which Richard Par- Respondent-Appellee. key injured due negligence wife, Parkey. No. 84-5695. Lisabeth Jurisdiction diversity was based on citizenship. The United Appeals, States Court of district court held that the household exclu- Eleventh Circuit. sion clause contained in policy at issue was valid and enforceable. Aug. 1985.

The issues in appeal this purely were

matter of New Mexico law. state One

issue was whether “household exclu-

sion” clause was void because it was con-

trary public policy and the New Mexico Act,

Financial Responsibility N.M.Stat.Ann. 66-5-201—5-239 After oral ar-

§§

gument Court, before this the New Mexico

Supreme Court question answered

Estep v. State Farm Mutual Automobile Company,

Insurance (1985), 703 P.2d 882

reh’g August denied state

supreme court held that “the ‘insured’ and

‘household’ exclusions contained in motor liability policies

vehicle issued or delivered

in New Mexico contrary were and are

* Santiago Campos, liability Honorable E. policy District of New mobile issued to Mr. and Mrs. Mexico, sitting by designation. Parkey, James owners insured automo- parents Parkey. policy bile and of Richard policy 1. Under the terms of the insurance issued exclusion, question contained an an com- Farm, agreed State pay the insurer exclusion," monly known as the “household behalf of the insured "all sums which the in- liability coverage ap- which stated that did not legally obligated sured shall damages pay become ply “TOBODILY ANY INJURYTO INSURED OR bodily injury because of ... sustained ANY MEMBER OF FAMILY THE OF AN IN- persons____” other Record 56. State SURED RESIDING IN THE SAME HOUSE- Parkey, Farm maintained that Lisabeth er of the car in the the driv- HOLD THE OF INSURED." Record at 57. accident, permissive awas driver and therefor was insured under an auto- opinion

Hatchett, Judge, filed Circuit dissenting part.

concurring part murder, kidnapping, robbery,

degree armed battery, and sen- forcible sexual exhausting After his tenced to death. remedies, Martin filed federal dis- state petition court a for writ habeas trict to 28 2254. The corpus pursuant U.S.C. § petition, and Mar- district court denied (1) appeals, arguing that: his tin now was obtained in violation 1977 confession Arizona, of Miranda (1966); (2) his 5.Ct. involuntary; 4 confession was July confession was in obtained Miranda; (4) July 11 of his con- violation in his fession was obtained violation of counsel; (5) right of his Sixth Amendment (6) involuntary; was confession trial court committed constitutional state refusing appoint an error additional defense; expert mental health to assist his (7) violated the state trial court Lockett v. Ohio, 438 U.S. (1978), by excluding re-

L.Ed.2d 973 or consider, sentencing, at certain fusing to concerning the deterrent effect of evidence (8) penalty; the state trial court the death error exclud- constitutional committed sentencing, jail certain ing, at trial and records; (9) Amendment of his Sixth deposi- a violated when confrontation was sentencing read into evidence tion was Defender, Jorandby, L. Public Richard showing of the witness’ without Mello, Barnard, Asst. Pub- Craig Michael S. Sixth, Eighth, unavailability; and Beach, Fla., Defenders, Palm for West lic rights were Amendment and Fourteenth petitioner-appellant. death-qualified jury by the use of violated Smith, Gen., Atty. Fowler Ros- We affirm. Joan at trial.1 Jim Gen., Af- sin, Dept, Legal of Atty. Asst. I. BACKGROUND Gen., Palm fairs, Atty. of West Office 25, 1977, p.m., just before On June Fla., Beach, respondent-appellee. for a convenience store entered two men Florida, Beach, where Patricia

Delray student, Greenfield, was em- college men, identified as Nollie The later ployed. Forbes, Gary robbed GODBOLD, Judge, Martin and Chief KRAY- Lee Before point approximately of HATCHETT, Judges. at knife Circuit Greenfield ITCH beer, of and two cases ninety dollars KRAVITCH, Judge: Circuit They drove from the store. her abducted apartment, blindfold- to Martin’s her back convict- Nollie Lee Martin was Appellant way Martin’s shirt. along the with Florida, ing her County, first- Beach ed in Palm rights. This claim constitutional violated his appeal a claim also included Martin’s brief on argument. prior to oral practice dropped, Supreme Florida’s Court of that the receiving capital parte cases ex information State, appeal. Both men forcible sexual bat- direct committed Martin v. 420 So.2d (Fla.1982), tery apartment. on her at the Mar transported then Martin and Forbes post-conviction tin's motion for pur relief away apartment, keep- from the Greenfield suant to Florida Rule of Criminal Proce assuring her ing her blindfolded and dure 3.850 was denied without evidentia at a she would be released remote area. ry hearing. The denial was affirmed driving After some distance an aimless Court Florida. Martin v. fashion, vicinity they arrived at State, (Fla.1984). 455 So.2d 370 Dump, Lantana and Martin walked vic- away sight tim from the of Forbes. Ac- Martin then filed instant habeas cor- cording Forbes, Martin stated that he pus petition in the United States District attempted strangle suffocate the vic- Southern District of Florida. piece rope, tim but that she with short petition,4 district court denied Martin’s thought recovered her each time he appeal breath and this ensued. she had Martin then stabbed succumbed. II. THE CONFESSIONS autop- her several times the throat. Martin challenges, grounds, on several sy revealed that Greenfield died of stab the admissibility July 4, of both his

wounds, probably struggle pre- and that a 1977 confessions. He claims ceded her death. that the erroneous admission these con- July 4, 1977, On the afternoon of Martin fessions at necessitates the reversal and Forbes were arrested detectives first-degree his murder conviction. We County from Palm Beach Sheriffs Of- must determine whether the confessions charges fice on unrelated to the Greenfield defective, and, are constitutionally indeed if that day, police murder.2 Later under in- so, whether reversal of the murder convic- terrogation, having Martin confessed to required. tion is July killed Patricia Greenfield. On again Martin confessed mur- A. July Miranda and Confession der. July Martin that contends his 4 confes- Martin was indicted first-degree mur- sion was obtained in violation Miranda der, kidnapping, robbery, armed and forc- Arizona, v. S.Ct. battery.3 pleaded guilty ible sexual He not L.Ed.2d 694 Martin was arrested at filed rely and a notice of intent to on the p.m. July 4, about 2:30 on was interro- insanity. pre-trial defense of A motion to gated, on, p.m., off from then until 7:55 suppress July Martin’s 4 and 11 con- finally undisput- when he confessed. It is fessions was denied. Martin was found ed that Martin was read and waived competent to stand trial and was tried be- rights prior Miranda to the start of the jury, fore him on all which convicted point, however, interrogation. At one Mar- penal- counts and recommended death questioning tin asked whether could ty. The trial court sentenced Martin to day. Glover, wait until the next L.K. one death. County of the two Palm Beach detectives present request, Court of Florida affirmed when Martin made his tes- hearing: Martin’s death on suppression conviction and sentence tified at the office, pled guilty second-degree 2. Martin and arrested false Forbes were on im- Forbes mur- prisonment battery charges in and sexual con- der and testified for the state Martin’s at trial. involving nection with a incident prostitute. The state trial court that the found granted twenty-four 4. The district court hour police probable had cause arrest Martin and execution, stay then-pending of Martin’s how- charges, propriety Forbes these ever, probable and issued a certificate cause ruling is not before us. stayed appeal. subsequently This court Mar- pending tin’s execution of this resolution Forbes, initially accomplice, 3. in- appeal. dicted for the same offenses. Pursuant to an agreement prosecutor’s with Mosley, 423 U.S. Michigan in the interview point there a Q. Wasn’t (1975), 321, 46 L.Ed.2d 313 the Su- where arrived Mr. Scarola before greater detail the preme explored a desire expressed Mr. Martin right ques- to cut off scope suspect’s of a up the con- talking and to take stop There, explained: tioning. the Court day? next again the versation interpreta- A reasonable and faithful It possible. that. It is I don’t recall A. opinion of the Miranda must rest on tion say some- me like he did seem to the intention of the Court that case to next waiting until the thing about to noti- adopt “fully effective means ... it was con- how day and I don’know right of silence and fy person of his tinued. the exercise of the to assure that keep Well, just then Anderson Q. did honored____” scrupulously will be that, that isn’t him after questioning U.S., S.Ct., at 1630. The crit- at continued? how it was safeguard passage in the ical identified person’s right to cut off possible. at issue is a A. It S.Ct., Id., questioning.” Ander- present, John J. The other detective Through option of his the exercise son, stated: questioning he can control to terminate during the inter- Now, point Q. at some occurs, questioning the time at which say to Nollie rogation, didn’t discussed, subjects and the duration to make a state- not want you he did interrogation. requirement ment? law enforcement authorities must recall, no, I sir. A. Not option respect person’s exercise of pressures the coercive counteracts “I say you, don’t want Q. Did he setting. therefore conclude custodial today, I’ll talk to amake statement admissibility of statements ob- that the you tomorrow?” custody has person after the tained about, something “Can’t we He A. said depends remain silent under decided to until tomorrow?” wait “right to cut off on whether his Miranda that, you just Q. Okay. response to “scrupulously hon- questioning” was him, you? questioning didn’t kept ored.” Yes, said, go on.” I “Let’s A. sir. 103-04, (emphasis 96 S.Ct. at 326 Id. at omitted). added; footnote that Supreme held Miranda Court guidelines when police must follow certain and principles of Miranda Applying the in or- interrogations, case, conducting custodial the instant to the facts of Mosley rights of protect the constitutional right der to to cut off that Martin’s conclude Miranda, suspect. “scrupulously Under hon- was not questioning suspect the now-fa- give July interrogation. 4 It is during not must ored” scru- warnings,5 request, also must we wait miliar set of but “Can’t true that tomorrow,” suspect’s right equivocal to cut invoca- was an pulously honor until questioning, and right the Miranda Court to cut off questioning. As tion of his off an- explicitly indicates in refused to “If the individual that Martin never emphasized: Nevertheless, manner, prior any questions. to or dur- more any time swer at any remain Anderson’s continuation to Detective that he wishes ing questioning, previous- interrogation improper. We cease.” Id. silent, interrogation must invocations of equivocal held that (emphasis ly add- 473-74, 1627 86 S.Ct. at at immediately limit right to counsel ed). attorney will be an one cannot afford prior if he suspect] warned to must be [The any questioning if right to appointed to remain for him questioning he has the that silent, says used anything can be he that he so desires. law, 479, he has the against Miranda, that him in a court at 1630. U.S. at 86 S.Ct. 384 attorney, that presence and right of an 924 pre-Miranda Supreme

scope police questioning “clarifying ous decisions, Court Thompson v. equivocal request.” requires suppression of statements “ob- [the] (5th Wainwright, 768, F.2d by ‘techniques 771 Cir. tained and methods offen- Estelle, 1979); see Nash v. F.2d Haynes process,’ sive to v. Wash- due banc), denied., (en Cir.) cert. (5th ington, U.S. [503,] [1336,] U.S. 100 S.Ct. 62 L.Ed.2d 409 (1963),] L.Ed.2d 513 or under cir- [10 Thompson: (1979). explained As we suspect cumstances which clearly opportunity had no equivocal request to exercise even ‘a free and [W]henever id., will,’ attorney suspect S.Ct., is made a unconstrained at for an at 1343----” Oregon Elstad, during interrogation, custodial -, interrogation scope of that is immediate- 105 S.Ct. subject only. predecessor one

ly to one and This narrowed court’s has held: questioning must be Further order find con- thereafter [I]n [the defendant’s] request that clarifying limited until fession voluntary, we must conclude clarified____ it And no statement tak- he independent made an and informed request is made and before en after will, choice of his own free possessing the Miranda can clear it is clarified ... capability so, to do being will not bar. pressures overborne and circum- swirling stances around him. Id. at 771-72 (emphasis original). Estelle, Jurek v. 623 F.2d apply We see no reason differ Cir.1980) (en banc), equivocal ent rule invocations 1001, 1014, 1709, 1724, 68 L.Ed.2d right cut off In the questioning. instant (1981).8 therefore, case, only proper course of ' attempt action would have been to to clari also has acknowl- fy whether Martin indeed intended to in edged, that “detection solu- and questioning. off voke his to cut In is, best, tion of crime and difficult stead, simply replied, Detective Anderson requiring arduous task determination and on,” go interroga “Let’s and continued the persistence part responsible on the of all tion. hold violated the dic charged duty officers with the of law en- forcement____ Mosley,6 Miranda and tates of and that the proper The line between July 4 confession thus was inadmissible. permissible police conduct tech- niques pro- and methods offensive to due

B. Voluntariness Confes- draw____” best, is, cess one to difficult sion Haynes, 373 U.S. at 514-15, 83 at S.Ct. Connecticut, Culombe v. July Martin also claims that his 4 1344. In 367 confes- 582, involuntary.7 568, 1860,1867, sion process was 81 due S.Ct. 6 L.Ed.2d test, (1961), in “voluntariness” as set forth numer- 1037 Justice Frankfurter wrote:9 Thierman, 6. In United States v. 678 F.2d 1331 both Thierman and the case instant constituted (9 1982), th right questioning. Cir. the Ninth Circuit the of reached invocations the cut off to opposite involving conclusion in case a sus potential 7. We address this claim pect’s request, because of its "Can we talk about it tomorrow?” admissibility July Thierman, effect on the of the surrounding 11 confes- circumstances in sion. See section II.C. suspect’s request indicated that the infra matter, particular subject concerned and not interrogation Circuit, general. the See id. at 1336. 8. The the Eleventh en banc decision 1206, Prichard, City Bonner v. 661 F.2d event, In to extent that it is inconsist- of the (11th Cir.1981), adopted precedent as decisions today, reject ent our with we decision Ninth of the former Fifth Circuit rendered to holding. Circuit's Thierman We do not deem it 1, October 1981. necessary suspects for to use talismanic words rights. to in order invoke Cer- their Miranda tainly requests lawyer?,” 9. plurality opinion Justice such as "Can I have Frankfurter's or, alternatively, lawyer?," joined by I have a Justice of the "Can’t con- Stewart. Three invocations, Clark, dissenters, however, Harlan, equivocal, stitute of albeit Justices vein, Whittaker, requests agreed counsel. a similar with Justice Frankfurter’s during outcome, guy” technique; early stages ques- such its ... [WJhatever Anderson, . interrogation, indispensable to crime Detective tioning is often guy,” necessity playing the “bad raised his voice at compelling has Its detection. Martin, him, cursed and discussed the recognized as its suffi- judicially been penalty, society in a death while Detective Glover and even justification, cient Sc.arola, ours, strongly Attorney Assistant State’s Jack as which, and con- like stands “good guys,” expressed sympathy principle for stitutionally committed Martin, According Martin. crime cannot be Anderson persons accused of misrepresented strength of their also themselves out made to convict against by telling state’s case him him that mouths. own confessed, Gary codefendant Forbes had if it is once admitted ... But promised attempt while Scarola that an suspects permissible, questioning of psychiatric help would be made obtain are needed reasonable means whatever him, told him that the truth “couldn’t must questioning effective to make the him,” gave legal hurt him con- advice police. conceded to also be cerning possible effect of a confession. 1862, 579, 571, at at 81 S.Ct. Id. argues length that the five-hour confession was ob “Whether [a] interrogation and the failure of the improper inducement or tained coercion request to honor his until “wait only by an examination determined can be tomorrow” constitute evidence of coercion. all of the attendant circumstances.” Finally, Martin contends that his emotional 1343; see also 83 S.Ct. 373 U.S. state, particularly mental when the discus- (“This is, necessar Jurek, F.2d at 937 subject religion, sion turned to the indi- endeavor. We must case-by-case ily, a involuntary. cates that his confession was totality of the circumstances weigh the agree We with state court impact on defend examine their [the po of the tactics used that certain ant]____ must determine whether We during interrogation lice were finding compels a sum of the circumstances “distasteful,” disapprove and we involuntariness.”). Although at trial the interrogation manner in which the overall establish, by preponder prosecution must balance, however, On was conducted. evidence, challenged that a ance of say that Martin’s confession was cannot voluntary, Lego v. confession was see involuntary. initially note that none of 92 S.Ct. Twomey, 404 U.S. inherently improper were so co tactics (1972), 626-27, L.Ed.2d 618 on collateral produce per se involuntariness. ercive review, proving involuntar the burden stated Stein v. As the corpus appli the habeas iness rests with York, 937; New Jurek, 623 F.2d at Bruce v. cant. See Cir.1976), (1953): L.Ed. Estelle, 536 F.2d 1058-59 denied, 429 U.S. rt. or of it Physical violence threat ce We therefore 50 L.Ed.2d during prisoner detention custodian of a “totality of the look to the circumstances” purpose____ When no lawful serves interrogation, surrounding weigh no need to present, there is supports the record determine whether effects on the will of the measure its victim____ that the confession was Martin’s contention individual involuntary. inherently co- Interrogation not ... is ercive, Interro- physical violence. aspects of the as is Martin identifies several solving gation represent he claims indi- does have social value interrogation that crime, not---- example, police physical force does For as cia of coercion. upon a depend employing “good guy, admitted a bad The limits in case to governing general principles S.Ct. 81 at 1900. "delineation of 642, Culombe, interrogation.” 367 U.S. at 926

weighing pres- denied, of the circumstances of 460 U.S. 103 S.Ct. 75 against power of sure resistance of L.Ed.2d finding 937 This factual is person confessing. What would be presumption entitled a of correctness of overpowering to the weak will or mind 2254(d). under 28 U.S.C. See Sumner v. § might utterly against be ineffective an Mata, 539, 544-45, 101 S.Ct. experienced criminal. 767-68, (1981); 722 66 L.Ed.2d Hance 182-84, Id. at S.Ct. at 1091-92. Neither Zant, 73 (11th Cir.) F.2d 696 957 cert. physical nor violence threats of violence denied, 463 U.S. 103 S.Ct. 77 Martin, against were the time when used (1983).10 L.Ed.2d 1393 interrogation occurred indicates that addition, predecessor court’s pre- deprived sleep, Martin was of not viously has held that some of the of kinds record reveals that Martin was not denied pressure psychological that were on used psychological, food or drink. Because not Martin generally not do render a confes- here, physical, alleged per is coercion involuntary. sion In United Bal- States v. apply. se involuntariness rule does not See lard, (5th F.2d Cir.1978), the court Culombe, generally 367 U.S. at 622-23 & stated: 74-83, nn. 1889-90 & nn. 74-83. Encouraging suspect a tell the truth course, though Of even none suggesting might that his cohorts tactics, alone, improper police standing “holding not, leave him bag” does as finding coercion, possi mandates a it is law, matter overcome confessor’s ble that their effect Martin cumulative on will---- is a Neither statement was sufficient to render in the confession cooperation accused’s will be made voluntary. The test is whether Martin’s known to the court a sufficient induce- capacity “will overborne and his for [was] ment so as to subsequent render a in- critically impaired.” self-determination criminating involuntary____ statement Culombe, 367 U.S. at 81 S.Ct. at 1879. A truthful and statement of noncoercive We conclude it that was not. In judging possible penalties an which accused impact overall interrogation on Martin, may given faces inexpe note that he the accused with- was “not ways overbearing rienced out crime or detec one’s free an its will. Such tion,” Stein, 185-86, see may account increase the chance that one S.Ct. at he previously pled had detained will make a statement. How- guilty to three second-degree counts of ever, long as statement results murder and one count of arson in North intelligent from an apprais- informed and Carolina, for which he had been sentenced al of the risks involved rather than years prison, was atmosphere, may coercive the statement parole at the time the relevant events oc voluntarily be considered been curred in Florida. made____ [T]elling appellant in a realistically noncoercive manner of the supreme found,

The state contrary court expected penalties assertions, and encouraging to Martin’s her taped that “the to tell the truth testimony clearly statement and is no more than show that afford- promised Martin was any- not misled or her the chance to make informed thing giving his statement.” decision with respect cooperation Martin v. to her State, (Fla.1982), So.2d government. cert. with the Wainwright, finding In Price v. 759 F.2d "voluntary” confession Cir.1985), findings this court held subject 2254(d) that the presumption to the § of correct underlying historical fact Fenton, (3d a state court’s resolu ness. See Miller v. 741 F.2d 1456 subject tion of a mixed U.S.-, issue of fact and law are Cir.1984), granted, presumption of correctness under 28 (1985). 85 L.Ed.2d 157 Because our reso 2254(d). § See U.S.C. id. at 1552. appeal lution of instant does not rest on correctness, presumption Supreme recently such a we not granted The of need has cer- question tiorari on the await the Court’s whether a decision Miller. state court’s (citations omitted). Finally, previously The Su- this court has indi

Id. at that although cated confessions made dur likewise has declined to find preme Court ing incompetency a time of mental or insan involving in cases twelve hours of coercion ity involuntary, are “mere emotionalism 185-86, Stein, 346 at interrogation, see U.S. necessarily and confusion do not invalidate by police promises that S.Ct. at Zant, them.” Corn v. 708 F.2d be and father would released defendant’s (11th Cir.1983), U.S.-, prosecuted, not that his brother would be (1984); 104 S.Ct. Sul 1084, misrep- 73 S.Ct. at see id. at Alabama, v. 666 F.2d livan by police that a codefendant resentations Cir.1982). case, the In the instant state confessed, Cupp, Frazier had see v. helpful trial court noted that “it has been 1420, 1425, 89 S.Ct. U.S. question of Court to have the volun L.Ed.2d tariness of the statement illustrated an Although we are troubled Mar recording really actual voice of what oc Attor allegation that Assistant State’s tin’s making curred at the instant of the of the “advice,” ney gave legal him Scarola Jack tape I find that statement. ... record that unpersuaded this constituted we are July 4th ed statement of ... reflects] interrogation, During the Scaro coercion. indicia voluntariness.” The trial court of la Martin that Florida uses a bifurcat told also found that context of the actual “[t]he cases, capital and that while a ed trial in questioning statement followed this which guilt him hurt confession would logical reflects a reasoned and discussion ____ sentencing. might help him at phase it competent The reflects a statement Martin that “it Scarola also admonished recitation of the facts.” We defer to these help can As a you.” truth that findings, they are based as on trial attorney, not prosecuting opportunity Scarola should to listen unique court’s tape recording and evaluate Martin’s engaged in such discussions with own Nevertheless, Cupp, words voice. Frazier soon-to-be defendant. Cf. (“Petitioner at 1425 light above-quoted language from argument presses also the alternative that Ballard, conclude that Scarola’s indis involuntary____ his was The confession render confession cretions did not Martin’s y.11 evidentiary hearing judge, after an involuntar recording during tape was which contention, played, agree with the could not support record also does an not not reading the record does lead and our of length either the that five-hour inference conclusion.”). contrary us to interrogation failure to honor request to “wait until Martin’s tomorrow” conclusion, interrogation although involuntary. the confession rendered July 4 preceded Martin’s confession place interrogation during took normal one, hardly model none the im- was hours, questioned Martin was off waking proper techniques used were continuously, rather than and fa on require a find- inherently so coercive as tigue appear to have a factor does not been Further- per se involuntariness. more, decision to confess. We also totality circum- based stances, satisfy significant explic that Martin find it never Martin has failed his quest the confession was itly proving to answer more refused burden product forces that combined to ions.12 Although explicit thought refusal answer fur- claims that he Scarola 11. Martin also questions necessary in order for ther was not attorney. We this claim his defense find questioning Martin to to cut off invoke ways was not a in the novice incredible. Mosley, supra see section under Miranda and Ü.A., furthermore, and, clearly was told law explicit such an we find the absence of prosecutor job was to Scarola was a whose probative evidence on issue of refusal him. convict voluntariness. 928 suspect’s ability

overbear his free will. therefore hold the to exercise his free that, despite inadmissibility its under Mi- so investigatory process will taints the 4 randa, July Martin’s vol- a subsequent voluntary confession was and in- untary. formed waiver is ineffective for some period.

indeterminate Though Miranda Tree,” “Fruit C. of the Poisonous the requires that the unwarned admission Rule, Bag” “Cat Out of the suppressed, must be admissibility the of July 11 any subsequent Confession statement should turn in solely these circumstances on whether it July We next must decide whether the 4 knowingly is voluntarily and made. automatically Miranda violation renders at-, Id. 105 (emphasis S.Ct. July inadmissible, 11 1293-94 the confession either added). words, In other long so as the poisonous “fruit of the under the so-called prior, unwarned doctrine, confession recently tree” satisfies or under more process “due test,” voluntariness id. at developed legal theory known “cat as the -, (quoting Schulhofer, S.Ct. at 1293 bag” out of the rule. The Court Court, precise 79 Mich.L. recently addressed these in issues Confessions (1981)), Rev. Elstad, U.S.-, subsequent con- Oregon v. 105 S.Ct. automatically fession is not L.Ed.2d 222 inad- We therefore rendered under missible the “fruit of analysis along poisonous our sug- conduct the lines tree” doctrine. gested by the in Court Elstad. The instant case differs from El

1. “Fruit of the Poisonous Tree” stad in that it involves failure honor Elstad, suspect’s began request to “cut question consider- off” whether, ing ing rather than give and under what a failure to circumstanc- Miranda es, Nevertheless, warnings. the failure to administer Miranda same reason “taints,” warnings necessarily applies. in explained a confession As subsection, preceding July under the poisonous “fruit of the tree” doctrine, Elstad, a subsequent voluntary. confession was in confession. The As Court noted that here the “fruit of violated the technical re poison- quirements Miranda, applies only ous tree” doctrine of but did not constitu- violate at-, the Fifth tional violations. Amendment itself. The Id. 105 S.Ct. at absence rule, 1291. The of “actual coercion” exclusionary Miranda in connection with the July 4 “sweeps interrogation renders the broadly more than the “fruit poisonous Fifth may trig- inapplicable, Amendment itself. It tree” doctrine gered even in hold that the absence of Fifth Miranda viola automatically Amendment not require violation. The tion does the ex Fifth Amend- prohibits ment prosecution use clusion 11 confession its compelled ground. case in chief testimony.” -, (footnote

Id. at Bag” 2. The “Cat of the Rule Out omitted; emphasis original). Miranda a “presumption compulsion,” creates opinion The remainder of the Elstad con- which, “though purposes irrebuttable for bag” cerns the out of so-called “cat chief, prosecution’s case does not rule, rule. This originally derived from require that the statements and their fruits Supreme Court case United States inherently be discarded as tainted.” Id. Bayer, L.Ed. The Court concluded: (1947), is on the notion that a based It is an unwarranted extension of Mi- defendant let out of who has once the “cat simple randa to hold that a failure to “never bag” to a confessing crime warnings, unaccompa- administer the psychological thereafter free by any practical nied actual coercion having or other disadvantages confess- circumstances calculated to undermine ed. can get He never the cat back Miranda, Relying technically in 67 S.Ct. at 1398. violation bag.” Id. voluntary. inquiry courts held that The relevant is some lower Bayer, whether, fact, or a the second statement giving of either an unwarned the fatally compromises voluntarily the was also made. confession coerced — subsequent of all state- voluntariness at-, -, U.S. ments.13 added; omitted). (emphasis footnote suspect held Court that “a who has Elstad, Supreme flatly the re- In Court responded yet once to unwarned uncoercive the jected interpretation such a broad questioning thereby is not disabled from bag” the rule: “cat out of waiving rights confessing after he the This Court has never held given requisite has been the Miranda voluntary impact of disclo- psychological at-, warnings.” Id. 105 S.Ct. at 1298. qualifies as state guilty sure of a secret compulsion compromises or the voluntari- As poisonous with the “fruit of the subsequent waiv- ness of a informed doctrine, reasoning tree” the Court’s in El er____ the initial nor When neither disposes bag” stad of the “cat out of the coerced, lit- subsequent admission is Here, police “phys issue. used neither permitting exists for justification tle ical violence” nor “other deliberate means” voluntary probative evidence of a highly to coerce Martin’s first confession. Rath irretrievably lost to er, Elstad, confession as in the first confession was factfinder. voluntary, although through obtained technical violation of Miranda. We see no difference between the

There is a vast treating a basis for failure to honor a sus consequences flowing from coer- direct pect’s right questioning any to “cut off” by physical vio- cion a confession differently give from a failure to Miranda deliberate means calcu- lence or other warnings,14 July and we hold that suspect’s and the to break the will lated automatically Miranda violation does not consequences of disclosure of a uncertain require July the exclusion of the 11 confes freely given response “guilty secret” sion. question noncoercive to an unwarned but July D. Miranda Confession [Tjhere presum- no

... is warrant admissibility of the suspect’s Having effect held that coercive where statement, by our inculpatory though July 11 confession is not determined initial present bag” "cat rule differs from the main silent and to have counsel were 13. The out of the ignored police subjected poisonous flatly while them to aforementioned "fruit of the tree” interrogation.” Id. that it effects of the continued at-n. doctrine in concerns the conduct, added). namely, giving (emphasis suspect’s S.Ct. at 1296 n. 3 Read in of the first confession, conjunction opinion, with the rest of the Elstad rather than the effects of the unlaw- Elstad, at-, meaning police of footnote 3 is clear: where the ful conduct. See (“It "flatly ignore” suspect’s police court’s invocation of 105 S.Ct. at 1294 was the [lower] any thereby likely rights, is the un- confession obtained view that answer and not Hence, cases, involuntary. impaired respondent's in such questioning abili- to be warned addition, waiver____”). bag” may psychological ty give "cat out of the effect a valid differently; question operate call into the voluntariness of a subse- two doctrines the "fruit quent poisonous confession. tree” doctrine excludes subse- not, confessions, voluntary quent whether Here, hand, explict- on the other Martin never except produced by "taint” the unlaw- where the ly questions. refused to answer more See police dissipated, while the "cat ful conduct say supra note 13. We therefore cannot bag” question rule calls into out of the request questioning to cut off was "flat- subsequent confessions voluntariness already ly ignored," and we have held that Mar- themselves. voluntary. July tin’s 4 confession was In our view, the Miranda violation commit- "technical” majority opinion in El- 14. In footnote 3 ted in the instant case was no stad, "inappo- likely subsequent described as confession more to render concerning involuntary the dissent cites site ... the cases than was the "technical” failure to rights warnings suspects of their to re- Elstad. whose invocation administer the Miranda confession, concerning ly asking, you rulings your “do understand turn Martin’s contention that we next rights?” petitioner replied that she obtained 11 confession itself was On appeal, did. the court stated: Miranda, in of that violation question The is whether the full Mi- him on that date did not questioned who warnings required randa were on De- fully of him of all his Miranda rewarn 28, cember 27 and though even re- recording rights. tape July of the 11 A sponse police question to the petitioner that, beginning interrogation at the shows expressly stated that she remembered interrogation, Detective Glover told rights previously explained her to her. Martin:15 previously We think not. We have held Q. right, you remind of All Lee. I will requirement that “there is no that an rights. your You constitutional continually accused be of reminded you to to don’t have talk know that rights intelligently once he has waived attorney says You have an who me. them.” Anthony, United States v. 474 you talk he to no that wishes 770, (5th Cir.1973) F.2d 773 .... you’re going to talk to of one but me We think that further delineation on your you own free will and because petitioner’s 27 of rights, December which to, want is that correct? had she stated that she understood from Right. A. n prior explanations, would have been suppression hearing Glover testified at needlessly repetitious. warnings that Martin received no other be- 122; see Prysock, Id. also v. California interrogation, fore the of and that start 355, 359, 2806, 2809, 453 101 S.Ct. 69 fully time Glover warned Martin (1981) (“This L.Ed.2d 696 court has never earlier, July one 4.16 was week on ‘rigidity’ indicated that the ex- Miranda providing Although Martin with full Mi precise tends to the formulation of the undoubtedly warnings July on 11 randa defendant____ warnings given a criminal course, would have been a better and safer Quite the contrary, Miranda itself indi- say we cannot that Glover’s failure to re- cated that no incantation talismanic was warn Martin renders the confession inad strictures.”). required satisfy its missible under circuit’s Miranda. This view, In our Biddy controls iss predecessor analogous an faced situation in Cir.1975), warned, fully ue.17 Martin was and know Diamond, Biddy v. 516 F.2d 118 ingly intelligently denied, waived his Miranda 950, rt. 425 U.S. 96 S.Ct. ce 1724, rights, prior interrogation. There, July 48 L.Ed.2d 194 July Martin petitioner full On indicated that he still warnings received Miranda rights. Biddy, giv on December 15. On understood those As in December. her, police again questioned ing complete warnings this time mere- Miranda on language quoted argues 15. The is taken from 17. Martin that Court’s deci- transcript. exchange Williams, version of that sion Brewer v. 430 U.S. appears transcript suppression in the (1977), 51 L.Ed.2d 424 limited relevant hearing slightly: differs Williams, however, portions Biddy. involved Lee, right. Q. you your All I remind will completely different issue from one rights. you Williams, constitutional have You know don’t presented here. the issue was you attorney you talk until if rights whether waiver of to remain silent me, going are talk to that correct? present during questioning and to have counsel Right. A. suspect be could inferred from the fact that the slight two differences between these ver- incriminating made statements in the absence sions do not affect our resolution of this issue. Although may of counsel. Williams have cast validity Biddy’s testimony doubt conclusion that Glover contradicted this another inferred, point during suppression may hearing, such a waiver see when he United States fully Brown, (5th Cir.1978) stated he also warned Martin of his v. F.2d n. rights prior interrogating (en banc), Miranda him on question it did not call into produced hearing June 26. Glover at the opinion portions Biddy upon relied here. “rights signed by card” Martin on date. needlessly repetitious. may Martin concedes that a defendant would have been July 11 right confession the Sixth Amendment conclude waive coun notes, however, in violation of Miranda. not obtained that the state sel. heavy establishing has the burden of “an Right to Counsel and E. The relinquishment or intentional abandonment Confession right privilege.” a known Hance v. Zant, (11th Cir.) (quoting 696 F.2d July 11 next claim is that the Zerbst, Johnson of his was obtained violation confession 1019, 1023, (1938)), S.Ct. It is Amendment to counsel. Sixth U.S.-, represented Martin was undisputed that (1983); accord, 77 L.Ed.2d 1393 counsel,18 United that counsel had instructed and Brown, (5th v. 569 F.2d 236 Cir. personnel jail at the States Martin and the both 1978) (en banc). Furthermore, any state- as Martin Martin not to make that was out, “indulge in permis- points every counsel’s courts must police ments to without admonitions, however, presumption against Despite these reasonable waiver.” sion. Williams, 387, 404, captain jail a note Martin sent the Brewer v. Dietert, 1232, 1242, (1977); requesting speak to with Christie Purvis, supervisor, accord, and Detective Glover. parole Tinsley his 731 F.2d (11th Cir.1984). that his law- captain reminded Martin The ultimate determi anyone speak him to with yer totality did not want nation of waiver turns on the permission, to which lawyer’s 793; without circumstances. See id. Sullivan v. captain replied that he knew. The Alabama, Martin Cir.1982). 666 F.2d note, of Martin’s “has at the bottom wrote findWe that the state has met its attorney, guess, I doesn’t told that his been in this case. Martin initiated burden anyone,” him to talk to and both want July police, 11 conversation with the de captain signed the note. Martin and the spite being warned his counsel and that he still wanted captain told the Martin jail captain not to do so. Even after Dietert and Glover. At Martin’s to see signing indicating note that reading and reach request, captain first tried to of his he had been informed counsel’s located, could not Dietert. When she wishes, press to his re Martin continued Martin told captain telephoned Glover. speak with Dietert and with Detec quest to he to see him. Glover that wanted clearly These actions evidence tive Glover. Meanwhile, Mar- Dietert was notified of right his to coun Martin’s intent to waive speak jail to the request tin’s and came Sullivan, (waiver 666 F.2d at 483 sel. See conversation, which During him. with may explicit, but be inferred need not be place jail, at the Martin took an office circumstances). totality of Martin from attempt in an physically assaulted Dietert any way making into not in coerced was hostage.19 jail guards her as a to take this decision. forcibly subdued into the room and burst argues, Martin Martin, gash on his leaving him with a (1) wishing speak his motive for with taken to a Martin then was forehead.20 rational, (2) suicidal, police not his where, cell, moments holding a few small waiver, existed, af if it became ineffective him and later, met with Detective Glover Dietert, and he ter he attacked Christie to the Patricia his second confession took rights informed of his Miranda was not Greenfield murder. charges told Glover that he July un- 19. Martin later Detective 4 arrest on After Martin’s 18. "leverage” "get gun murder, to use Dietert as wanted supra note see related to the Greenfield and commit suicide." appointed public office was defender’s 7, attorney July represent him. On or about point, Although the record is unclear on Martin's de- Lubin was substituted as Richard appears that Martin later was taken to a it hospital fense counsel. several stitches. where he received prior tion,” alleged waiver. We find these tape to the voices “[t]he [on arguments recording] meritless. motive reflect same indicia of volun- waiving his to counsel is [July irrelevant tariness described in the earlier 4] made,21 to whether such a waiver was Mar- statement.” Finally, respect with on unprovoked incomplete warnings, tin’s attack Dietert did not already Miranda vitiate terminate the valid otherwise have concluded that such warnings were waiver, jail captain in- clearly adequate, under the of this circumstances to, case, Martin that not formed he did to remind rights. his to, speak had been advised not July hold that the 11 confession was volun- presence. and, his tary therefore, outside of counsel’s alsoWe admissible at Martin’s note that Detective Mar- Glover reminded trial. rights

tin after of his Miranda the attack G. Harmless Error Dietert, but confession. summarize, confession, To al- observed, lawyer As the trial court “A though voluntary, was obtained in violation give oblige can advice but he cannot of Miranda and hence inadmissible. Un- agree client to follow it.” We with the Elstad, however, der neither the met court the state its burden of Miranda violation nor the fact that Martin proving that intentionally Martin relin- had the cat bag” “let out the rendered quished right prior his to counsel to the July the 11 confession inadmissible. Rath- July interrogation, 11 and we hold the that er, July confession, 11 having the been July 11 not confession was obtained in vio- without obtained coercion and in com- full right lation of Martin’s to counsel. pliance with both Miranda and Sixth the counsel, right Amendment properly to was F. July Voluntariness and the 11 Con- admitted trial. nowWe must determine fession whether Martin is entitled to reversal his respect final claim with to conviction, murder or whether the errone- July the 11 confession that it was invol July ous admission of the 4 was confession untary. agree. do not only We indicia “harmless error” the under test set forth in coercion identified Martin in connec Chapman California, 87 July (1) tion the interrogation with 11 are (1967).23 L.Ed.2d physical following his condition his aborted Dietert, (2) attack Christie record, fact reviewing the After the entire that Detective give beyond Glover failed to him we are convinced a reasonable complete warnings. Although Miranda doubt that the erroneous admission of Mar jail guards forcibly July subdued Martin af tin’s confession could not con have Dietert, ter leaving he attacked him awith to his tributed murder conviction. The gash forehead,22 on his important such force not most was in our factor decision is intended, nor possibly could July merely Martin have that the 4 confession was cu intended, believed that it him was to coerce mulative evidence contained confessing into July fact, for a July second time to In confession. addition, Greenfield murder. In the state confession included a far more de detailed trial court found Martin scription made “no July murder than did complaint injuries of his or mental condi- confession.24 attempted Chapman 21. We note that ex- Martin never to 23. The "harmless error” standard re- plicitly quires scope right beneficiary "the limit the waiver of a of his constitutional error prove beyond to reasonable doubt that the counsel. We thus not such need address complained error of did not contribute questions suspect may as whether a make verdict obtained." Id. at 87 S.Ct. at 828. counsel, “limited” waiver of the police might under what circumstances confession, July In the de- Martin never held to have violated a "limited" such waiver. itself, admitted, merely scribed the murder but confession, July "I her." killed In the on the supra 22. See note 21. hand, other Martin the knife used identified he and, Moreover, his July appearances,” finally, addition to 11 con- court fession, “the of the defendant jury had before it the statements testimo- Forbes, accomplice, others, concerning ny Gary police, and of Martin’s criminal robbery, lengthy charges.”25 light evidence, account of all of this gave who In Patricia kidnapping, battery possibility, and sexual see no let alone a reasonable Greenfield, jury one, and who told the how Mar- July absent confession ei- knife, tin, led sentencing armed with a the blindfolded jury judge ther the or the would young down a dirt road at woman found Martin insane. Dump and fifteen or Lantana returned conclusion, that the we hold erroneous later, saying had twenty minutes that he July 4 confession admission of was by stabbing her in the killed Greenfield beyond harmless doubt reasonable as to jury Finally, presented was

throat. guilt sanity. and his both Martin’s We testimony of a state with the unrebutted therefore decline to reverse Martin’s mur- pathologist, examined who Greenfield’s ground.26 der conviction on this the cause of death to body and found her III. THE AKE V. OKLAHOMAISSUE multiple wounds in throat. be the stab Martin that the state next contends argues, his Martin court committed constitutional error by re- in the murder not the involvement fusing appoint an additional mental Martin, According issue at trial. crucial expert health his defense. assist admission of 4 con the erroneous was examined to trial seven men- jury “harmful” fession was because including psychia- health experts, tal four sentencing judge relied on it trists, two and a psychologists, neurologist, sanity. disagree. evidence of Martin’s court-appointed all of whom were either was, merely again, 4 confession by asserts, recruited the defense. Martin presented other cumulative of the evidence however, that in addition to these seven apparent on This is from the this issue. experts appoint- the court should have also order, sentencing in state trial court’s Blau, neuropsychologist, Dr. ed Theodore explained rejected which the court that it organic damage. examine him for brain to insanity, emo Martin’s claims of mental or deprived Martin that he was of Dr. claims disturbance, capacity and tional diminished solely to his indigen- Blau’s assistance due following (1) on the of the basis evidence: cy, denying process thus him of due law. testimony professional the of wit “[T]he nesses,” (2) analogous to testimony non-pro “The Martin’s claim is the one the recently by the have defend addressed Court fessionals who observed the incarceration,” Oklahoma, -, in during his Ake ant before and Ake, In to S.Ct. “The actions of the defendant timely arrest, the trial denied a during his confinement and dur- court defense re- appeal possible specific Martin the location 26. did not raise on to commit the murder effect of the erroneous admission of Dump where took at the Lantana the murder sentencing capital proceeding, confession on his place. stated: He also raising require nor would the issue reversal of Patty in down behind embankment I took Ample Martin’s death sentence. evidence was Dump. I stabbed her in the neck the Lantana sentencing, independent introduced at strangle her. I at first once and left tried confession, support all five get her to uncon- her. I couldn’t become by jury. aggravating factors found See Gary rope gave that me. Then scious with the Kemp, Mitchell v. 762 F.2d Cir. Gary couple of shots. backed the heard a He 1985) ("[Mitchell] that contends district up I the shots and that was car and heard also evidentiary hearing court should have held an in the when I stabbed her neck. Mitchell’s on the voluntariness of confession. Because we have concluded ... State that, sentencing also 25. The order indicated produced aggravating sufficient evidence relying on state the two confes- rather than the factors of Mitchell's offenses in absence of sanity, of Martin's Martin re- sions as evidence confessions, Mitchell’s merit.”). this claim is without insanity. of his on them as evidence lied quest court-appointed psychiatrist. for a Our hire his own. concern is that the result, As a the defendant was examined indigent defendant have access to a com- by only psychiatrists, state whose testimo- petent psychiatrist for purpose discussed____ ny establishing in was instrumental both sanity the defendant’s at the time of the at-, 105 S.Ct. at Id. 1097. The Ake dangerousness. offense and his future applied same capital rule to sen- The defendant was convicted first-de- tencing proceedings in which the state death, gree murder and sentenced to presents psychiatric evidence as to the de- the conviction sentence were affirmed dangerousness. fendant’s future See id. by appellate the state court. view, In provides our Ake no solace Supreme Court, reversed. petitioner above, this case. As noted emphasized “justice The Court cannot Martin by was examined seven mental equal where, simply of his as a result experts, health none of whom hired were opportu- poverty, a defendant is denied the by the On contrary, state. all seven judi- nity participate meaningfully appointed were either by court, with proceeding liberty is at cial which his approval prosecutor both the -, stake.” Id. at counsel, defense or were recruited psychiatric noting significant After role Furthermore, defense. experts two of the play trials, many evaluations criminal significantly assisted Martin’s defense the Court concluded that the as- “without testifying at trial that Martin psychiatrist pro- of a was insane sistance to conduct a the time the murder was fessional examination on relevant to committed. issues defense, short, help simply determine whether Martin was not denied the insanity viable, defense present testi- competent psychiatrist” “access to a guar- mony, and to assist in preparing cross- indigent anteed to defendants Ake. of a psychiatric examination State’s wit- contends, however, one nesses, the risk of an inaccurate resolution namely, Wilson, experts, Dr. Russell sanity issues is extremely high.” Id. at neurologist, ever examined him for or- -, 105 S.Ct. at Court then 1096. The ganic damage, brain and that the other six held: experts merely relied on Dr. Wilson’s con- a defendant demonstrates to the [W]hen organically clusion that Martin was not judge sanity that his time at the Martin, brain-damaged. According to this offense significant is to be a factor at erroneous, conclusion was and have would trial, minimum, must, the State at a as- by been rebutted Dr. Blau.27 competent sure defendant access to a reject We this contention as well. Mar- psychiatrist appro- who will conduct an tin claim does not that Dr. Wilson was priate examination and in evalua- assist incompetent Instead, tion, or biased.28 preparation, presentation and theory contention seems based on course, a that he say, defense. This is not to constitutionally indigent appoint- that the a consti- entitled to the defendant has right expert psychiatrist agree tutional to choose of ment of an who a would personal liking testify or to receive funds to in accordance with his wishes. This appeal 27. On from the Rule denial of Martin’s who committed the instant crime while on relief, post-conviction motion for the Su- parole. 3.850 preme Court of State, Florida concluded: (Fla.1984). Martin v. 455 So.2d 372 expert unappointed reject Martin's claim that Because we Martin’s claim on another completely have would undermined the neu- ground, we need not decide whether the claim rologist’s testimony findings and the based on was, stated, as the Court of Florida findings purely speculative. those is At best "purely speculative." expert’s given testimony this would have judge jury and one more bit of information to likely a claim Nor would of bias be well weighed along considered be and with the court, received since this the services of Dr. experts’ proof testimony other sought by Wilson were defense counsel. was, best, rapist Martin and murderer

935 damage, reject the notion we that either rejected just such a contention court (11th process requires clause Zant, Ake or the due 709 F.2d 643 Cir. Finney v. appointment expert of an who would reach 1983): defendant, conclusion favorable to the court-ap- Finney does not contend hold that the examination conducted and psychiatrists were biased. His pointed Wilson, independent presumably Dr. examinations should contention that their competent neurologist, met minimum con- thorough and that their have been more stitutional standards.29 Because the trial were inaccurate is the sort conclusions appoint an court’s refusal additional addressed to argument that should be expert deny mental health did not Martin fact____ the finder of opportunity participate meaningful- “the entitled to an ... accused was [T]he ly” sentencing proceeding, in the trial or of his mental condi impartial assessment decline to reverse Martin’s conviction or experts. battery tion but not to ground.30 sentence on this O’Brien, 151,] F.2d [McGarty v. denied, (1st Cir.), 341 U.S. [ THE IV. EXCLUSION OF EVIDENCE (1951)]. Ac 95 L.Ed.2d S.Ct. THE EF- CONCERNING DETERRENT Zahradnick, cord, Satterfield FECT OF THE DEATH PENALTY cert, Cir.), (4th F.2d alleges that the state trial court 56 L.Ed.2d 762 S.Ct. Ohio, violated Lockett v. (1978), by ex- at 645. Id. consider, cluding refusing or at sentenc- Moreover, nothing suggests in Ake even ing, concerning certain evidence the deter- constitutionally entitled that a defendant penalty. rent effect of the death The evi- Rather, opinion. psychiatric to a favorable testimony dence consisted of the of law in Ake focused on the Court’s discussion professor University Hans Zeisel of the competent, independent for a the need Chicago, sought jury to tell the who “evaluation, in the psychiatrist to assist (1) general, penalty has no the death preparation, presentation of the de effect, particu- proven deterrent -, fense.” U.S. at lar, penalty does not deter the the death 1097; Kemp, 758 F.2d Blake v. cf. Zeisel mentally ill. The trial court allowed Cir.1985) (court “important found it testify concerning alleged lack of it did not involve to note” that case before effect, general deterrent but refused “the of a defendant to ask for succes testimony concerning the deterrent permit expense psy appointments sive at state mentally ill. The court then effect on the the kind of chiatrists order to obtain jury: instructed the him.”). report that would favorable to I During phase of the trial testimony by professor the examination permitted hold some independent having question defense- of wheth- of Martin seven to do with penalty than the deters. You experts mental health more er or not death recruited are that the determination of adequately requirements met of Ake. instructed whether or not one state has such respect organic of brain With to the issue entitled, was not exam- 30. Because we find that Martin also that Dr. Wilson’s 29. Martin contends case, he was a neu- to the services of an ination was insufficient because on the facts of this rologist, neuropsycholo- expert, Dr. Blau was a whereas we need not additional mental health however, concedes, gist. of Martin that both sufficiently demonstrat- address whether Martin study disciplines of behavior these involve the the reasonableness of his ed to the trial court dys- brain - as "a manifestation of measurable request. Mississippi, U.S. See Caldwell v. reject patently We as untenable function.” -,-n. S.Ct. n. 86 L.Ed.2d 105 suggestion that trial court committed error (1985) (rejecting no Ake claim because 231 refusing ap- to of constitutional dimensions showing been made in of reasonableness had opposed point neuropsychologist, to a neu- as court). rologist. 936 effect, potential is the of either on

penalty prerogative exclusive rent murderers people general specific category of that as reflected poten- state or on of murderers, legislative designed help their action. tial is not to unique focus on the sentencer characteris- lawyers duty judges, is the and It capital particular tics of a defendant or juries legislative to follow such enact- Rather, designed such crime.31 evidence is long they as as ments are constitutional. persuade legisla- to the sentencer that the penalty, jury recommended the death erred, part, in whole it ture or in when court, following presumably its penalty enacted a death statute.32 Such refusing own instructions and consider held, never evidence has been either deterrence, testimony on sentenced Zeisel’s court, or this “con- Court Martin death. indispensable.” stitutionally the Su- As We hold that the trial court not vio- did preme noted in Lockett: sequel, its late Lockett. Both Lockett and Oklahoma, Eddings v. 455 U.S. Nothing opinion this limits the tradi- (1982), require S.Ct. exclude, authority tional of a court to sentencing and admission consideration at irrelevant, evidence bearing not on the aspect relating “any of all evidence of a character, record, defendant’s or defendant’s character or record the circumstances of his offense circumstances the offense n. 12. 438 U.S. at 604 n. at 2965 proffers for a defendant as a basis sen- less than death.” Eddings, tence U.S. v. Wainwright, Shriner F.2d Lockett, 874; S.Ct. at (11th Cir.1983), U.S.-, 2964; accord, 98 S.Ct. at Woodson (1984), S.Ct. L.Ed.2d 723 Carolina, 280, 304, v. North 96 court rejected argument considered and 2978, 2991, L.Ed.2d There, extremely similar to Martin’s. (“[Tjhe respect humanity fundamental petitioner unsuccessfully sought intro underlying Eighth Amendment ... re- sentencing testimony duce at of a quires consideration of the character and minister Methodist who had witnessed record the individual offender purpose three electrocutions. The obvious particular circumstances of the offense as testimony persuade jury was to constitutionally indispensable part sentencing legislature court that the process death.”). of inflicting the penalty of it had erred when enacted a statute autho imposition rizing such prof- penalty Evidence as that the death introduced however, case, in the through petitioner fered instant funda- electrocution. The ar mentally gued appeal differs from involved in on that the exclusion of and Eddings. testimony Lockett concern- jury Evidence minister’s denied the evi the death penalty whether has a deter- “evolving dence relevant to standards of argues issue, therefore, proffered 31. that Zeisel’s testimo- murderers. relevant is not ny relating alleged mentally lack of deterrent effect execution whether the ill murderers mentally ill mentally was "tailored to the facts and persons will com- deter other ill from disagree. murders, circumstances” of his case. mitting any- Zeis- but whether it will deter testimony nothing had doing el's to do with Martin’s one so. from personal background. characteristics or concerning pen- 32. Evidence whether the death testimony proffered if Even Zeisel’s had been alty potential has a deterrent effect on murder- “tailored to the facts and of Mar- circumstances" general designed persuade ers in sen- case, still tin’s its relevance would legislature tencer that the erred when it enacted gist have been doubtful. The of Zeisel’stestimo- concerning penalty a death statute. Evidence ny mentally that ill murderers should not penalty specific death whether the deters a cate- given penalty the death be tally because other men- murderers, gory potential it to the extent is persons thereby be ill will not deterred all, 32, supra designed relevant see note is committing penalty, from murders. The death legislature provided show that the should have imposed persons solely is not to deter exemption penalty Rather, an from the death such person similar executed. persons. penalty imposed potential death all deter Illinois, decency,” Witherspoon prosecutor’s v. 391 that the remark see was not “so 15, 1770, 519 n. 1776 n. egregious U.S. S.Ct. as to render the [sentencing pro (1968) (quoting Trop 20 L.Ed.2d 776 ceeding] fundamentally unfair.” Id. at 590, 598, Dulles, 78 S.Ct. (quoting Zant, Hance v. 696 F.2d (1958) opinion)), (plurality L.Ed.2d (11th Cir.), denied, cert. thus This court contravened Lockett. (1983)). 77 L.Ed.2d 1393 held: prosecutor That a or defense attor Lockett. While the Shriner misreads ney may argue deterrence during capital plurality opinion indicated that a defend- sentencing proceeding offending without permitted capital ant in a case must be Clause, however, the Due Process does not virtually any relating introduce evidence Eighth mean that the prohibits Amendment character, offense, record to his or it did the exclusion of relating evidence to deter proffered by not hold that all evidence already noted, rence. As we neither concerning propriety defendant Eddings suggests Lockett nor that general in electrocutions must be Eighth Amendment reaches that far.33 It admitted. may seem permit anomalous for a state to added). (emphasis view, In Id. at 1456 our argument subject yet, on a at the same applies rationale also to evi- Shriner time, relating exclude evidence to that sub dence of deterrence such as that introduced ject. Nevertheless, Eighth neither proffered by or Martin. Amendment part nor other of the Con contends, however, that our deci prevents stitution doing a state from so. Francis, sion Collins v. 728 F.2d 1322 hold, therefore, We that Martin is not enti (11th Cir.), U.S.-, sentencing tled to a new proceeding be (1984),compels of, cause of the state trial court’s exclusion Collins, prosecutor different result. consider, or failure to relating evidence following during remark made the clos the deterrent penalty.34 effect of the death ing arguments capital sentencing pro in a ceeding: THE V. REMAINING ER- CLAIMS OF arguments put Now have been forth ROR against capital punishment in that it does argument remaining

not deter crime. But that can- Martin’s three claims of error supported by any- First, not be statistics or do not merit extended discussion. he thing else. argues that the trial court erred exclud- ing, sentencing, jail at trial and at certain rejected petition- at 1338-39. Id. We Martin, According records. these argument general er’s that “the need for insanity records were relevant to his de- deterrence is an unconstitutional sentenc- trial, fense at and to the existence of miti- consideration,” ing id. at and held gating sentencing, they factors at because U.S. Constitution does not for- “[t]he (1) showed that he was argument “tremulous” while bid a sentencer to hear from jail, indicating thus that he did not counsel on the need for a deterrent sen- during psychiatric “fake” his tremors satisfy tence and to fashion a sentence to (footnote omitted). examinations, (2) attempted at 1339 that he to com- that need.” Id. jail, dosages Our decision was based on a determination mit suicide while admissibility penalty. 33. Nor is the of evidence concern whether to recommend the death penalty effect of the death ambiguous, the deterrent do not find the instructions nor do Kemp, issue in Brooks v. 762 F.2d 1383 jury we believe that the could have them found (en banc); see Order on Petition for Cir.1985) clearly correctly so. The re- instructions 23, 1985, Rehearing, July slip op. at 5700. jury legisla- minded the wisdom of the penalty ture’s decision to enact a death statute jury Martin also contends instruc- it, properly despite was not before Zeisel’s testi- quoted may jury tions above have misled mony challenging the deterrence rationale be- believing into it could not even consider deter- hind that decision. rence, thereof, determining lack antipsychotic given him, medication contemporaneously.”); accord, Fed.R.Evid. prescribed by Vaughn. Dr. 106.35 assuming jail

Even remaining records second claim is that trial, should have been admitted at how his Sixth Amendment of confronta ever, hardly such error by was of constitution tion was violated the admission at sen al dimension. Wainwright, tencing, See Dickson v. without a showing of una 348, (11th Cir.1982) (“An 683 F.2d vailability, evi pretrial deposition of Dr. dentiary justify error does not Scherer, habeas re psychiatrists one of the who exam lief unless the violation results a denial problem ined Martin. The with this claim fairness.”); of fundamental Anderson v. is that defense counsel never objected to 447, (5th Maggio, Cir.1977) 555 F.2d the admission of the deposition on the (evidentiary justifies error habeas relief grounds that the state had failed to estab only crucial, if “material in the sense of a lish Dr. unavailability. Scherer’s “In the critical, factor.”). highly significant plain error, absence hearsay that is not merely records would have been cumula properly objected to is ordinarily admissible subject tive evidence on the of Martin’s any at trial purpose relevant may condition, subject already mental ex by jury considered to the extent of plored great throughout detail the trial. probative its value.” United States v. Furthermore, Vaughn, Dr. psy as Martin’s 971, Phillips, (5th 664 F.2d Cir. Unit chiatrist, could have testified about 1981), denied, B 1136, cert. 457 U.S. antipsychotic medication. 906, 2965, 208, 102 S.Ct. 103 S.Ct. L.Ed.2d (1982).36 74 L.Ed.2d 166 sentencing proceed So far as the find that the admission of Dr. Scherer’s concerned, our review of the tran deposition “plain error,” did not constitute script indicates that the trial court did not reject and thus Martin’s confrontation jail exclude Rather, records. the court argument. clause told defense counsel that the records could evidence, be introduced into if but all remaining Martin’s final claim is that his in, of the records including Sixth, went Eighth, those re and Fourteenth Amendment lating to Martin’s attack on rights Christie Die were violated the use of a death- tert. Defense qualified counsel then decided not jury sup trial. Martin cites in any view, introduce of the records. In our port of his claim Eighth the recent Circuit ruling the court’s absolutely correct. in Grigsby Mabry, decision v. 758 F.2d 226 Lockett capital (8th entitles a Cir.1985). court, defendant to in This has troduce all mitigating relevant rejected evidence at on several occasions claims identi sentencing, but does not entitle the defend cal to Martin’s. See Jenkins v. Wain pick ant to portions choose (11th between of wright, Cir.1985); 763 F.2d documents and attempt records Balkcom, to Smith v. 660 F.2d 575-84 mislead (5th the sentencer. 1981), Fla.Stat. 90.- Cir. B modified, Unit § 671 F.2d Cf. (“When writing or B), recorded state denied, Cir. Unit cert. 459 U.S. part ment or thereof is introduced (1982); 103 S.Ct. 74 L.Ed.2d 148 party, party an adverse may require him Spinkellink Wainwright, 578 F.2d any time to introduce part (5th Cir.1978), other 591-99 writing other or recorded statement ought fairness to be considered controlling precedent. We abide trial, jail rule, apparently 35. Prior to ought records had evidence "in fairness to be con- photocopied single been paper, onto a sheet of contemporaneously.” sidered although they initially consisted of a number of separate cards. Our resolution of this issue, Circuit, B, 36. Decisions of the Fifth former Unit however, depends not on the number of sheets 30, 1981, September binding rendered after are involved, paper but on the fact that the vari- precedent Reynolds in this circuit. Stein v. Se- portions ous of the records were related in con- curities, Inc., (11th Cir.1982). 667 F.2d and, tent in the words of the relevant state instruction, judge’s the trial has the VI. CONCLUSION impact argument An credible evidence. discussion, foregoing of the On the basis impact successfully with such cannot be denying judgment of the court below argument defense counsel’s rebutted cor- petition for a writ of habeas imposition the death against sentence. hereby AFFIRMED. pus is case, In was in- this unfairness concurring HATCHETT, Judge, Circuit judge creased when the trial admitted the part: dissenting in part in then, professor’s testimony and out-of-state effect, jury ignore instructed portion majori- I from that dissent testimony because “whether or not one rela- holds that evidence ty’s opinion that penalty state has such a is the exclusive may not intro- general deterrence be tive to state____” people of prerogative of the phase capital of a penalty in the duced trial. offense prosecutor Florida law allows the arguing jury. broadest latitude filing opinion, the Elev of this With “inflammatory” argu Even or “abusive subject gen cases on the enth Circuit’s ample “there is ment” is allowed where (1) that neither the eral deterrence hold support in the record to the re basis may put prosecutor nor defense counsel State, marks.” Darden v. 329 So.2d relevant to whether the into evidence facts (Fla.1976). sentencing phase In the general deterrence penalty provides death capital prosecution, “evidence offense murder, prosecutor that both the but presented any may be as to matter that the may argue to the and the defense counsel court deems relevant to the nature of the the death jury merits or demerits of the character of the crime and defendant.” Francis, v. penalty as a deterrent. Collins 1985). 921.141(1)(West A Fla.Stat.Ann. § (11th Cir.), F.2d 1322 prosecutor’s argument sentencing in the -, jury proceeding that the should recommend but, (1984). enough; reality, Sounds fair penalty as a deterrent to crime the death any holdings render defense counsel’s such approved by Florida law. has been Gibson totally argument general deterrence about State, (Fla.1977) (cit 351 So.2d ineffective. State, (Fla. ing Darden v. 329 So.2d prosecution, The as defense 1976)). problem may Florida cure this well case, prohibited introducing from are general de by allowing the introduction of effect of the evidence of the deterrent event, this court terrence evidence. penalty, prosecutor is not at death but ques the federal constitutional must face rule of equal disadvantage under this holdings. presented tion as a result our argue gen- prosecutor The can exclusion. present anomaly is of constitutional deterrence, using the existence of the eral fundamentally proportions making unfair enactment, capital legislative sentenc- sentencing proceeding. capital See statute, evidentiary support. Fur- DeChristoforo, 416 U.S. Donnelly v. ther, prosecutor’s argument general 1868, 40 L.Ed.2d 431 To by jury is benefited instructions deterrence anomaly, it is time for put an end to this jury not to consider the which caution the argu- no the en banc court to hold that issue, to “follow general deterrence but may jury ments be made to about legislative capital as the such enactments” penalty, the death or to deterrent effect of sentencing jury statute under which the is arguments may hold that such able, impaneled. prosecutor there- presented before made based evidence fore, get jury the existence of before jury. enacting legislators and the view capital declaration that judge’s conclusively re- sentencing statute has general issue. The

solved the deterrence argument, legitimized

prosecutor’s legislative

existence of the enactment

Case Details

Case Name: Nollie Lee Martin v. Louie L. Wainwright

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 26, 1985

Citation: 770 F.2d 918

Docket Number: 84-5695

Court Abbreviation: 11th Cir.