Robert Wayne Williams v. Ross Maggio, Jr., Warden and the Attorney General of the State of Louisiana

BROWN, CLARK, Before CHARLES GEE, GARZA, REAVLEY, RUBIN, POL- ITZ, RANDALL, JOHNSON, D. SAM WIL GARWOOD, Judges.** LIAMS and Circuit GARZA, Judge: Circuit begin We our consideration this case by tracing steps led petitioner this Wayne Court. Petitioner Wil Robert was liams tried East Baton jury in Rouge Parish, Louisiana, and convicted degree the crime of on April first murder following 1979. The day, sen tenced Williams to death. appeal, On direct petitioner’s conviction and sentence were Court, affirmed the Louisiana Supreme Williams, (La.1980), State So.2d 369 and certiorari denied United States Williams v. Court. Louisi ana, 1103, 101 failure This relief obtain petitioner appeal apply direct led for corpus writ habeas proved state court. After this avenue unsuccessful, petitioner filed an equally ap plication corpus for a writ habeas States United District for Middle District of That court ruled Louisiana. ad versely petitioner, appealed and so he Court. panel upheld A this Court ** Judge participate Tate did not in the consider- ation decision of this case. knowingly created a risk decision, petitioner Williams Black-

the lower court 1981), burn, bodily but harm to than great 649 F.2d of death more for petitioner successfully petitioned (b) that person offense reasons rehearing Today, en banc. ex- heinous, especially committed in an atro- herein, original panel pressed uphold we manner; cious, or cruel decision and find that rights under of Louisiana violated imposed was this case. properly by Amendments Eighth and Fourteenth of sufficiency reviewing evidentiary to a proceeding Before discussion one three circum- specific complained by petitioner, errors briefly (4) we of events sequence by sentencing jury; describe stances found that culminated in the senseless murder of petition- denying erred in the district court petitioner which was On convicted. Janu- evidentiary hearing allegation er an on 5, 1979, and ary Ralph Holmes Robert deprived of the effective assist- approached a Baton Wayne Rouge Williams sentencing, and guilt ance of counsel at Supermarket A P they & intended to trial; (5) the capital his district phases of entering, pulled rob. Prior they to ski each specifically to scrutinize court failed over masks their faces to their iden- protect made in the federal claim constitutional tities from recognition, pre- and Williams (6) comparative habeas and petition; pared shotgun his 12-gauge sawed-off convictions degree review first murder store, use. they When walked inside the district, than statewide judicial on a rather they spotted security Willie guard, Kel- basis, Eighth Amendment and violates 67, ly, age bagging groceries instead of 238, 92 Georgia, 408 S.Ct. Furman v. U.S. customary performing his duties. The two 2726, (1972), because of its 33 L.Ed.2d 346 approached Kelly attempt- men and Holmes failure the fair and evenhanded to ensure guard’s ed to from its pistol remove capital pun- administration of Louisiana’s this, difficulty doing holster. He had some ishment statute. Kelly pistol so a move toward the made it and aid thereby an effort to free Holmes. by Williams move fir- responded Kelly’s point

ing guard’s face shotgun point appeal by first raised Wil- range. resulting blank blast severed liams concerns the exclusion for cause of body. much of head from his Police Kelly’s estimation, who, petitioner’s never jurors bone frag- detectives on the scene observed opposition their irrevocable demonstrated ments, blood, hair, pieces spread and of skin argues He that his capital punishment. throughout the front the store. After right and Fourteenth Amendment Sixth killing the the two guard, proceeded men impartial by violated these complete robbery. fleeing Before ' dismissals. scene, however, pistol-whipped Holmes area, case in this Wither customer, seminal accidentally and Williams shot 1770, Illinois, 510, spoon 391 two more in the feet. U.S. (1968), recognized 20 776 uncon petitioner raised by Six issues are imposed of a death sentence stitutionality rehearing (1) en He contends that: banc. had been by a from which veniremen right his impartial to an under the because ex simply excused for cause Sixth Fourteenth Amendments was vi- pen pressed objections general by olated cause of three the dismissal for religious scru alty conscientious jurors who never stated their irrevocable infliction. The Court held ples against its opposition capital punishment; capi be said of might else “[wjhatever process death sentence violates the due it is clear that its at least punishment, tal clause the Fourteenth Amendment be- hanging jury cannot be by imposition cause there was insufficient evidence to 523, Id. at the Constitution.” support squared two of three 1777. The set out by namely, (a) requirements cumstances found 88 jury, S.Ct. 384 is The State Witherspoon ple juror been echoed entitled to a can have the case proven state and the Court and subsequent Supreme

thora statutory requirements involving ag- Texas, Circuit Fifth cases. Adams shown, gravating circumstances are 38, 2521, L.Ed.2d 581 U.S. S.Ct. you mitigating don’t feel that Ohio, 586, (1980); Lockett v. 438 U.S. it, you outweigh stances be able to (1978); S.Ct. 57 L.Ed.2d 973 Davis carry return a verdict Georgia, 429 S.Ct. Death mandatory penalty. in Lou- (1976); v. Bishop, L.Ed.2d 339 Maxwell is still electrocution. You may isiana have passed have read that some States (1970); Holman, Boulden v. injection thing, this type lethal but 1138, 22 (1969); Alderman passed that hasn’t been in Louisiana. Austin, (5th 1981); 663 F.2d 558 Cir. guess Death still electrocution. So Estelle, Granviel v. 655 F.2d 673 is, my question hearing explana- next 1981), denied,-U.S.-, cert. that will knowing tion and State re- - 71 L.Ed.2d sentence, quest you death were (1982); Burns proved that satisfied the State had its Estelle, 1979). 592 F.2d 1297 case, Both you could return a verdict that require to accept put Courts the state’s to would this defendant be to power exclude death? ... ground veniremen from a on the Q: you Could Mrs. Gooden? (1) that they automatically would vote I I (Ms. Gooden) A: don’t think could. against the imposition capital punish- Q: proved you Even if I regard ment without to evidence that verdict wouldn’t want return a that might developed trial require put would the defendant to be them, case before their atti- to death? tude toward penalty pre- the death would No, (Ms. A: Gooden) sir. vent them from making impartial an de- Martin, Q: you Mr. could return ver- guilt. cision as to the defendant’s dict? Witherspoon, 522-23, supra, at 88 S.Ct. at (Mr. Sir, Martin) degree A: with the (emphasis original). At the same I by being hold officer of the time, however, they also recognize that im- God, representing church and I’m I proper exclusion of even juror With- wouldn’t to do want it. erspoon grounds removes state the Q: course, my understanding, It’s power to impose a sentence of death. that all citizens would hesitate. I’m jurors Petitioner asserts that three were you sure want to at the would look case incorrectly closely excluded on the before return a verdict you basis their require would the defendant to be elec- opposition to the death penalty.1 Close trocuted, my but it’s understanding scrutiny of the voir dire examination of Green, you Mr. Mrs. Gooden juror each is necessary for the resolution of Martin, Mr. not return a could verdict this issue. jurors Two of the in question, require that would this defendant to be Ms. Martin, Gooden and Mr. were inter- put to death.... together. following viewed excerpt of (Ms. Gooden) No. A: attorney’s the district preliminary remarks (Mr. Martin) A: No. jurors’ responses and the inquiries to his Trial Transcript, vol. at 83-84. capital punishment about clearly demon- strates automatic opposition to the Both and Gooden unequivo Martin penalty justifies death exclusion on cally inability stated their consider Witherspoon grounds. penalty thereby death in this case and dis position penalty regardless jurors 1. It is clear that these excluded on presented. prong Witherspoon: evidence the basis of the first automatically against would vote im- you Q: qualified themselves from service. Co- So feel that vou could not return penalty? existing petitioner’s right to an all, impartial after is the jury, right State’s Brou) (Ms. A: No. that is willing to have a all consider there Are any circumstances which Q: penalties A prescribed by law. refusal could return a you verdict that would jurors strike said in- clearly have require defendant to be electrocut- fringed right. ed? Next, turn we to the voir dire examina- (Ms. Brou) This particular A: just one or tion juror, of the third Brou. Ms. After general? district attorney presented a similar intro- Q: particular This one. duction about and the Any A: circumstances where I do could right jurors State’s to select who willing are that? all penalties, consider engaged following colloquy with Ms. Brou: Q: Yes. Q: Assuming prove that I the defendant Well, (Ms. Brou) course, A: I don’t committed first degree murder and know much about the case. convicted, prove assume I the statu- always think in terms of how hideous requirements tory of aggravating the crime is because don’t know circumstances, which under Louisi- that much about it. I don’t know. I ana law make the case appropriate don’t think I do it. can penalty, you for the death can return Transcript, Trial vol. 185-86 (emphasis a verdict that de- mandates that added). be put fendant to death electrocu- The prosecuting attorney immediately tion? moved to strike Ms. Brou for cause no and (Ms. Brou) A: I don’t think I do could objection was interposed by defense coun- that. sel. will speculate We not about trial coun- Q: I Okay. appreciate your being hon- sel’s for objecting. Perhaps reasons not he est with me. let And me ask you did not want Ms. Brou other jury for this. you say When I don’t think But objected, reasons. even if he had can, what you me, are telling you objection would not have been well-taken. can; can’t tell me positively that you charges Petitioner re- that Ms. Brou’s is that correct? sponses far demonstrating fall short of au- (Ms. A: Brou) I know there is certain opposition tomatic to death penalty. you cases where read about them He Witherspoon attributes the absence of are so you just hideous that responses talismanic on the to record think, oh, the penalty death be would State’s failure to propound questions hard only outcome, good but par- this about opposition to the death We penalty. ticular I don’t know. disagree. If one examines the underscored Q: As the Judge you, told this is the portion statement, her clearly finds killing Well, I don’t know if a— that she did state return that she could not Judge that, said all but I it think a death sentence. in- prosecutor When is before the jury. This is the A P«fe quired again to she could not assure that robbery, murder that occurred on consider this Brou responded penalty, Ms. January the 5th of year. this itAnd that it. she did she could do not think is my understanding that you feel When this response conjunction viewed is you could not return the death previous opposi- her of clear statement penalty. tion to the penalty, death record (Ms. Brou) Oh,

A: let’s see. I’m afraid opposition penalty automatic to death couldn’t. I just would be thinking established. of why person terms can’t a like that

be rehabilitated rather than extermi- its do Witherspoon progeny nated. juror not aver prospective mandate that a and, in- opinion, thereby to the death Court’s would refuse consider that she right impartial State’s to an fringes possible penalty every case that could willing penalties all consider case enough If knows about arise. she petitioner’s law.2 provided According imposi- know she consider could not of a imper- exclusion venireman is analysis, regardless tion of the death of what penalty he all response unless states in missible she must be might presented, evidence absolutely con- refuses to questions that responses demonstrate excused. Ms. Brou’s re- penalty. equivalent An sider unwilling she to consider the would be other reasonable man- any framed in sponse penalty charged death where the crime indi- to demonstrate judged ner is robbery. She during murder committed reject is not firm. We position vidual’s possibility that she open does leave interpretation unthinking rigid, such a in a more “hide- would consider this placed will not be over Witherspoon. Form here, unwillingness to so ous” case. Her do substance. however, is firm. II By appeal, petitioner means of this asks to find this Court to narrow further the stiff re- next this Court urges Petitioner Four- his death sentence violative quirements Witherspoon progeny its feeling prejudice Q: comparison That is definite 2. A this case with other recent. Witherspoon you change? you not Fifth Circuit has been found pleteness in which error cases have that judge permits you just us to the com like would be enti- You don’t feel prosecutor’s questioning of Ms. person’s in that to take another life tled Estelle, Brou. In Burns v. 592 F.2d 1297 fashion. 1979), prosecuting attorney asked the (Venireman nods.) A: pen jurors opposition about their you Q: Okay, could not? alty following language: A: No. I could not. mandatory penalty right. All Then will the added). (emphasis sen- at 684 The death Id. your imprisonment life of death or affect in this case was reversed because tence fact, any deliberation on which what issue held that the venireman indicated Court general scruples against just will, you told in other words the me penalty. mandatory penalty imprisonment of death Enough questions to determine asked for life will the deliberations on affect automatically against would vote whether he case, fact issue of in this is that correct? objections penalty or whether the death obviously (emphasis added.) Id. at 1303 not This making impartial prevent him from an would equivalent asking if to the venireman guilt. decision as to automatically against would either death penalty vote defi- from neither the The instant case suffers penalty or if this attitude about the death The district at- ciencies of Bums or Granviel. prevent making him from an torney questions to calculated asked a series of impartial guilt. decision about defendant’s stating Ms. more than ensure that Brou preliminary inquiry, by a Such not followed scruples simply about the death conscientious specific questions, provides inadequate basis penalty. striking juror Witherspoon grounds. for a on Witherspoon very chal- A Fifth recent Circuit following prosecutor The discussion between Austin, lenge 558 F.2d Alderman v. Estelle, venireman and 655 F.2d occurred in Granviel (5th 1981), problem in found another Cir. treats 1981), denied, cert. L.Ed.2d veniremen but likewise absent dire of the voir 1636, U.S.-, 870,- S.Ct. Alderman, In a death sentence was set here. aside by 1644, issue because an extraneous introduced (1982): prosecutor of resulted in the exclusion Q: (By Prosecutor) The defendant jurors potential basis than that a broader charged capital case is are of murder. There prosecutor permitted by Witherspoon. did punishments the offense inquiry opposi- limit his to an individual’s capital murder and that either death penalty; penitentiary. he also asked wheth- tion death or life in the Now, each, foreman, sign you scruples er would be able to do have as conscientious against penalty capital punish- the infliction of the would effect the verdict that ment of defendant. This punishment as a for crime? forced veniremen to A: I don’t know what that improperly. means. The voir dire frame their answers Q: you you, personally sitting me ask Let properly limits in the instant case examination Juror, as a the death could ever vote so to inflict as inquiry opposition scope an about to its to penalty? penalty. No, A: don’t think could. process be- guilty.4 teenth Amendment due clause apparently response to insufficiency cause evidence decision, Furman the legislature altered support two of the three capital punishment statute from discre- cumstances jury. tionary mandatory. amended stat- penalty ute imposed finding required after death be presence imposed of three circumstanc- whenever an offender was found es, justified punish- guilty one of the newly defined crime of first petitioner ment ag- degree received. These three murder.5 de- (1) gravating circumstances of- statute were: clared this unconstitutional in Rob- Louisiana, fender engaged erts perpetration (2) armed robbery; knowingly the offender 49 L.Ed.2d 974 (1976), holding that great created a risk of bodily procedure death or harm provides neither “[t]he (3) person; to more one of- than standards judgments channel nor fense was committed in an hei- especially permits review to check the arbitrary exer- nous, atrocious, or cruel capital manner.3 cise of the de facto jury’s sentencing discretion.” Id at 96 S.Ct. at 3007. embarking

Before on a discussion of the substantive ap- law in this section of provided The direction peal, we examine the evolution that has Court in Roberts led Louisiana to once produced the current Louisiana death pen- again change its capital punishment scheme alty statute. Prior to the Court’s to ensure a jury opportunity has the Georgia, decision in Furman v. proffered consider all mitigating factors (1972), Louisi- a basis for a sentence less than death. The permitted ana statute to return requires statute also the jury to find at any one of the following verdicts in a mur- least a list of der guilty, guilty capital case: without pun- stances impose order death sen- ishment, guilty of manslaughter, or not tence.6 When sitting capital review of 905.4(a), .4(d), (4) 3. La.Code specific Crim.Pro.Ann. art. When the offender has a intent to (West .4(g) 1981). Supp. great bodily upon kill or to inflict harm person; than one more [or] 4. La.Code Crim.Pro.Ann. art. 814 specific When the offender intent to The murder statute in effect at this time commit murder and has been offered or killing defined the crime as a human anything has received of value for commit- being by specific an offender with the intent to ting the murder. harm, great bodily kill or to inflict or hereof, purposes Paragraph (2) For the engaged offender in the commission of certain peace term officer and in- shall be defined arson, (aggravated aggravated serious felonies any constable, sheriff, sheriff, deputy clude burglary, aggravated kidnapping, aggravated warden, policeman, game local state feder- rape, robbery, simple robbery). armed La. officer, jail prison al law enforcement Rev.Stat.Ann. 14:30 § officer, guard, parole officer, judge, probation attorney, attorney, district district assistant (West 1974): 5. § La.Rev.Stat.Ann. 14:30 attorneys’ investigator. or district degree killing First being: murder is the of a human degree of Whoever crime first commits the punished murder be death. shall (1) specific When the offender has a intent to great bodily kill or to inflict harm and is (West 6. art. 905.4 La.Code Crim.Pro.Ann. engaged perpetration attempted in the or Supp. 1981): perpetration aggravated kidnapping, ag- of following aggravat- shall be considered gravated rape robbery; or armed or ing circumstances: (2) specific When the offender has a intent to (a) engaged perpetra- was in the the offender kill, great bodily upon or to inflict harm attempted perpetration aggrava- or of tion peace fireman or a gaged officer who was en- aggravated rape, kidnapping, aggrava- ted performance in the of his lawful arson, burglary, aggravated aggravated ted escape, duties; or robbery, simple robbery; armed or specific Where the offender has a intent (b) peace was the victim a fireman or officer great bodily to kill or to inflict harm and duties; engaged in his lawful previously has been of convicted an unre- (c) previously the offender was convicted of serving sentence; lated murder or is a life murder, rape, aggravated unrelated or 388 of two other valid presence must find

cases, Supreme Court the state its decision based Court of at least one circumstances. presence the 359, California, doubt. v. 51 Stromberg a reasonable 283 U.S. beyond all addition, must examine 532, (1931), In the court where the 75 L.Ed. S.Ct. com- circumstances and mitigating possible held: Supreme Court cases all murder the with other pare case was a the against appellant verdict order judicial district affected specify did one. It general dispropor- is not to ensure that the sentence it rested. As there which upon ground fol- strictly was procedure tionate. This in the stat- set forth purposes three case. Petitioner lowed in the instant was instructed that ute, is not sufficient. charges that this respect with given be might verdict their light of Petitioner contends them, con- independently one of any to adopt narrow care of the sidered, say under impossible ing of circum constructions the conviction the statute clause of stances, 153, 96 428 U.S. Gregg Georgia, claus- any If one of these obtained. was (1976); 2909, Proffitt court has held es, which the state 2960, Florida, 96 S.Ct. 428 U.S. invalid, it be deter- cannot separable, was (1976); Georgia, Godfrey appellant that the this record upon mined 64 L.Ed.2d clause.... under that not convicted was cir (1980), two of the three being per- instead its follows that It cannot stand. cumstances found court, hold, state missible continues, argument Consequently, his any if one be sustained verdict could Peti sentence of death must fall well. the statute were the clauses of conclusion support tioner finds for this valid, necessary conclusion from to be Zant, Stephens v. F.2d was sent to manner in which the case 1980), granted, cert. that, clauses in any (1981), a cur case Con- is invalid under the Federal question rently pending before the Court. stitution, upheld. cannot be conviction Stephens, panel In this Court vacat- 51 S.Ct. at Id. aggravat- one ed a death sentence because challenged aggravating jury, ing a sub- circumstance found in this do not suffer constitu- stances case history stantial of serious assaultive crimi- supra, Gregg Georgia, tional defects. convictions, nal was later held unconstitu- ag- held that a similar despite tional. This action was taken (i) aggravated officer or kidnapping significant the victim was correctional has a Department activity; any employee prior history of the Louisiana of criminal who, (d) knowingly course of created a risk of normal the offender of Corrections required great bodily employment than to come in death or harm more persons person; incarcerated in close contact with (e) prison facility, offered victim the offender offered or been and the a state anything given engaged or has or received of value time in his lawful duties at the offense; for the commission the offense. (f) herein, (b) Subparagraph purposes offender the time of commis- For the imprisoned sion of the offense was after peace is defined to include the term officer marshal, marshal, constable, sentence for the of an unrelat- deputy commission felony; sheriff, ed sheriff, police- forcible deputy local or state (g) especial- in an the offense was committed man, warden, game federal law enforcement manner; heinous, atrocious, ly or or cruel officer, officer, jail guard, parole prison or (h) prosecution a the victim was witness in officer, judge, attorney general, probation as- against defendant, gave assist- the material attorney general’s attorney general, sistant any investigation state or ance to the in attorney, investigator, assistant dis- district defendant, prosecution of the or was an attorney, investiga- attorney’s or district trict eye alleged to a to been witness crime have tor. by possessed the or committed defendant against other the defend- material evidence ant. the Georgia in stat- gravating penalty. circumstance assessment of the death The vague ute on its face.7 was not unconstitutional Georgia words of the statute failed to guide cir- or aggravating The noted that this channel their discretion. properly cumstance must limited simply be The instant not similarly case is flawed. court, by an where it serves as the appellate jury The was only weigh to the permitted basis for the death sentence. In the instant facts specific of arriving the crime in circumstance, aggravating this al- their decision. The circum- though by the was jury, found not the basis of stance armed robbery-murder was for appellate approval the of sentence. present unanimously the by jury. found Since Louisiana law one requires only Under Louisiana law this means the be found in order questioned aggravating circumstances imposition to justify penalty, of the death entitle necessary are not jury the only one circumstance was reviewed.8 This imposition penalty. consider death at- aggravating circumstance not been The went to the findings gravity extra of petitioner’s tacked to date in series of chal- crime, jury’s power impose not the lenges to his conviction and sentence. the penalty. inquiry crucial in this and case every the requisite Since one cir- in which capital punishment has been or- cumstance of of murder course dered is whether jury's the dis- sentencing robbery clearly present armed is and was cretion properly channeled. E.g., Rob- unanimously by the jury, the other Louisiana, erts supra. statute, By the two circumstances are material de- jury’s discretion is limited the extent ciding whether the miti- aggravating and that only a few types killings permit of gating weighed in- together of consideration penalty. When imposed. dicate the death should be one or more of the statutory aggravating Here, thing significance of is how the found, circumstances is must bal- jurors perceived weight of these actions ance this against mitigating circum- by petitioner. weight they assigned in stances Stephens offered defendant. determining petitioner’s whether acts Zant can on distinguished grounds be outweighed by mitigating were or were not that the vague unconstitutionally aggravat- necessarily circumstncesa o be ested ing Stephens circumstances which they properly how viewed the facts they present found to be was one that required jury necessarily knew. focused on the jury done, to understand how to determine what Williams had not on how Louisi- of meaning actions, facts and circumstances not they ana classified his since before part them as a proof of that of legal meaning not instructed on the required crime. This the jury prop- terms involved. Louisiana’s classifications erly guided as to Georgia how classified change weights did not as- aggravating circumstance before could signed degree. lack of any material consider evidence of the definitions, other criminal precise legal therefore, con- affected victions and the impact proof of this petitioner’s none rights. substantial (Supp. 1975) scope Ga.Code Ann. pro- § 27-2534.1 to come within the order vides, part: However, discharge cumstance. second murder, rape, gun Although The offense of is not relevant here. armed rob- bery, kidnapping outrageously basis our decision does not mandate a deter- vile, wantonly circumstance, horrible presence or inhuman in that mination on the of this torture, depravity mind, it involved anor shotgun we note whenever sawed-off aggravated battery to the victim. intentionally group persons, fired around precluded Petitioner contends that this Court is the risk of harm than to more one individual holding the third created. finding stance valid because it is bound petitioner of the Louisiana pe- 8. The Louisiana Court found that “accidentally” injured. shot the others engaged titioner committed the murder while “knowingly” So.2d at 371. An offender must perpetration robbery. of an armed person create a risk harm to than more employed of herein approval reasoning if the might

It have been better trial Godfrey v. where at the permitted Georgia, supra, to consider judge time the a death sen- aggravating that le- same Court vacated only circumstances noted, of death in judge could and had tence it sentences gally present, be “[t]he (b)(7). Ac- exclusively in this case rested on defined those circumstances for the § intimate no as to cordingly, their the cir- we view wheth- way finding such constitution- petitioner might er or not the proven fully cumstances were had been in- on formed, ally have received same sentences it could be a more perhaps said that not, Georgia does as do some other basis. have fully instructed would not found states, multiple an ag- make murders some the aggravating circumstances of heinous- 446 U.S. at 432 gravating circumstance.” ness person and risk to more than one n.15, n.15, 64 L.Ed.2d at at S.Ct. present. speculation This is beside the the number of mark, Irregardless 409 n.15. of however, meaningful because the by the aggravating circumstances returned verdict, (1) portions of this at least one that, implication clear jury, aggravating circumstance present and uncbnstitutionality, absence of facial one totality that under the appel- serve as the basis for may properly mitigating late affirmation of the death sentence. imposed, prod- should be were the comment on Supreme most recent Court uct of channeled discretion and are rational- Oklahoma, Eddings this issue is found ly reviewable. “doubt expressing after supra, where Zant, This opinion Stephens Court’s applica- judge’s understanding the trial relied on so heavily by petitioner, is simply tion of circumstance [hei- inapposite. We do not a facially confront nous, atrocious, or cruel conformed murder] unconstitutional aggravating circumstance required by to that our degree certainty and, therefore, we need not vacate the sen- - ...,” Georgia decision in Godfrey given. tence circumstanc- n.3, at-, n.3, 102 at 873 es which were not considered and limited by did this a for reversal Court not find basis appellate court do not serve as the basis went of the death sentence but instead fur- for the death sentence. We base the sen- judge’s ther to to consider find the failure tence on the one circumstance considered by as the possible mitigating all factors revers- Supreme Louisiana Court. In so acting, ible error. follow procedure we implicitly utilized See, in several Supreme Supreme Court cases. Court’s review of e.g. Oklahoma,- Eddings one was en- aggravating circumstance 869, 71 L.Ed.2d 1 We find violation of ei- (1982); tirely proper. no Gregg v. Georgia, supra. Eighth ther the or Fourteenth Amendment. In Gregg, the first Court Ill constitutionality case to consider the of an contends that court below Petitioner very circumstance similar to evidentiary him denying erred in hear- here, challenged pointed Court out ing allegations ineffective assistance not discuss cases need where guilt both the and sentencing counsel at this aggravating circumstance had been phases of his trial. separate because both cases a “[i]n statutory found, First, circumstance also we examine claim of inef Georgia guilt did ex fective assistance counsel at the plicitly rely on the finding of seventh phase alleges of the trial. Petitioner [outrageous wantonly vile, attorneys suppression failed to seek horrible or inhuman when it up on a well inculpatory certain statements murder] held the death sentence.” ground. Fourth recognized Amendment n.53, n.53, S.Ct. at 49 L.Ed.2d figured question, The statements in 890 n.53. implied conviction, again in his were the importantly arrest, peti- m of an illegal according fruits affidavits is there indication of tioner; despite the information reliability. fact informants’ Petitioner a leading from to his arrest was obtained views this as a disagree. fatal flaw. We informant, Court, con- the affidavit confidential This Martin, United States reliability (5th tains no indication of 1980), F.2d 318 Cir. affirmed the validi errs in his informant. Petitioner assess- ty of similar affidavits. The Court held presentence report of the facts. The ment that, together, taken the corroboration of information from two contains confidential the two affidavits served establish their affidavit of the second informants.9 reliability. pointed Court out that the amplifies confidential cor- informant usual case which corroborative evidence roborates the information received from tip independent a validates involves verifi first. Information from these two sources police See, cation by investigation. e.g., provided probable for cause arrest. States, Draper 307, v. United 358 U.S. 329, 3 (1959); L.Ed.2d 327 United Texas, 108, Aguilar 378 U.S. 84 S.Ct. Squella-Avendano, States v. 447 F.2d 575 1509, (1964), 12 L.Ed.2d 723 established (5th 1971), denied, Cir. cert. 404 U.S. judging standards sufficiency (1971). While this hearsay probable affidavits to establish held that substantial corrobora recognized cause. that an affi- tion tip by of a another confidential infor may davit be hearsay based on information provide mant does evidence of reliability, specified: but cluded that the need were, the narcotics were where he cumstances from which the ^[1] ... some of the magistrate must be not ^[2] the informant disclosed, some of the informant, underlying ... was “credible” underlying concluded whose claimed informed officer identity con- these cases also reported independent gov ernmental verification denied, 595 F.2d 231 (5th See United States v. Scott, Cir. 555 F.2d 1980); (5th United Even in Farese, 1979); States 612 F.2d 1376 United Martin, information. Cir.), Barham, States relia cert. bility not solely based Otherwise, or his corroboration information “reliable.” by the confidential informant. “the Some inferences from the facts which lead weight given complaint” the fact that one infor will be “by drawn mant’s against penal statement was in neutral and magistrate,” detached as terest. requires, instead, Constitution but

police officer “engaged in the often com- case, however, In the instant corrobora- petitive enterprise of ferreting out tion alone serves to satisfy second prong crime,” or, ... as an Aguilar. of one statement confiden- unidentified informant. tial is amplified by informant the other. 114-15, U.S. at 84 S.Ct. at 12 We believe that the corroboration of details 729. The weakness of the affi- provides the reliability Aguilar which the davits in the case instant Therefore, relates to test petitioner mandates. had prong second Aguilar test. Nowhere no for asserting basis his statements to affidavit, 9. The which contains information one of identified B/M, the B/MS as Robert Holmes informants, states, from two confidential BR, rel- Minnesota, of 2216 and the other part: evant B/M, Minnesota, “Slim” as of 2242 BR. He identified B/F as Slim’s wife. Another On 1-10-79 Dets received infor- [detectives] supplied C.I. informant, [confidential informant] mation from a confidential who B/M, name of “Slim” as Robert Williams present stated that he was when 2 B/MS being 2242 Minnesota and his wife Ann [black and 1 males] B/F [black female] Williams, bragged approx, age beating Sims about of 275 a white W. man in the personally shooting Ralph head and Harrison. He also knows “Old Guard” at Athe & P Food Rouge. Store in Perkins Rd. in Holmes stated he Baton heard three talk possession, saw “doing” robbery He gun in their a sawed about the A P off shot- & Food large and a currency. killing amount of He Store and an “Old Guard.” testimony which been previously five arrest. illegal fruit of an police during at the sen the trial and introduced claim without merit. This is Williams, hearing.” supra, at tencing at assistance of counsel Ineffective trial this case transcript of 1025.10 charged sentencing phase the of trial is also peti knew three who reveals that witnesses petitioner alleg by petitioner. Specifically, at the of the guilt phase called tioner were attorneys his to conduct es that trial failed peti the The individuals had known trial. adequate investigation prepare an and to twelve, respective year, nine tioner hearing, for since properly sentencing drug usage about his They testified ly. neglected readily availa to interview based his defense on the petitioner because mitigation punishment of ble witnesses his conduct to re conform inability to per and to themselves with familiarize of the law because intoxica of quirements sentencing relating capital tinent law counsel is petitioner’s present What tion. Circuit, proceedings in Louisiana. In this strategy to is the trial em objecting really effective assistance of counsel is determined counsel. do not elect to by trial We ployed forth by the standards set in MacKenna guess strategy the trial decisions of second Ellis, (5th 1960),modified, 280 592 Cir. F.2d counsel. competent denied, Cir.), (5th 289 F.2d cert. 368 928 (1961); 78 L.Ed.2d argues next trial Petitioner (5th Gray, United F.2d 881 States in arguing a serious error counsel made Cir.), denied, cert. admissibility of the photos of about (1978); Herring jury. body in He contends that front Estelle, 1974). Effec F.2d gruesome revealed na this discussion tive counsel not mean coun does “errorless jury graphic photos ture of the sel, judged and not counsel ineffective utterly without argument terms. This hindsight, reasonably likely to but counsel facts referred to “gruesome” merit. The rendering reasonably render and effective attorney’s were the remarks that district assistance.” 280 F.2d 599. your to “have face blown off in was heinous worked with people you’ve failure front of the

Petitioner asserts that the exactly know and what people you call certain character witnesses demon this of man to the victim in case.” strates weakness his counsel. He this did These vol. at 267. com Transcript, attached of these witnesses to Trial affidavits his jury any application. federal do introduce to corpus habeas dis ments not already presented trict court earlier following finding made information Furthermore, this ar by presenting about this review issue: careful trial. “[A] petitioner’s the jury, these gument affidavits reveals that these witnesses in front to educate the opportunity would not evidence have added new to counsel had already presented that which about the limited definition had been especially hei sentencing hearing by petitioner’s mother. affidavits or crime.11 These contain cumúla nous atrocious 10. victim, appear- petitioner’s suffering not his Of the six affidavits attached relief, Now, application way post my five conviction are think- ance death. after petitioner dead, thing had ing, individuals who known man is it’s a terrible very import since childhood but had seen little of him instantly. not of And it but died years. drugs clean, in recent All concluded that or nice, 25 caliber whether it was brought bad influences had about his criminal gun. a shot He did it was wound or whether conduct. The other that of affidavit was his happened. I therefore submit not know what Alvin, brother, older who his conduct blamed pictures are not these rele- “heavy drugs.” on the use of they do not demonstrate or vant because especially or atrocious heinous indicate an Honor, pro- MR. Your COVELL: the code Legislature think what the crime. vides that one circumstance is crimes that we hear about such as mind were especially heinous atrocious crime. girl rapes repeated small and murder of a Legislature, they passed think the law, when thing where victim suffered. that sort of judge had a test or their was to intent to question next er assignment strategy

Petitioner’s counsel’s trial request judge ror relates to counsel’s failure to performance incompetent if it statutory ag limiting instructions on the was not errorless. We decline to take this con that were gravating action. There is little doubt had trial sidered did hear the jury. counsel employed strategy pro- the trial cir limited definition of the heinous crime posed by petitioner, this Court would now cumstance, however, argued when counsel face an argument effectiveness of counsel photos body. admissibility of based thereon. Trial in this counsel case addition, presented counsel with a best of a made the bad He certainly case. both limited definition of in circumstances provided reasonably effective assistance. closing argument.12 Consequently, adequate we find support Since in the rec- counsel’s inaction does not rise to the level decision, ord for our there is no need to of ineffective assistance counsel. return case to the court this below for an evidentiary hearing. judicial No further argument charges Petitioner’s final spurious time need wasted on such chal- counsel with thorough failure conduct a lenges. pre-trial investigation. Counsel would have discovered many good character witnesses IV he proper pre-trial undertaken inves tigation, asserts, he and then would this possibly challenges, petition- Next in series of have petitioner’s decided not to have moth er that court alleges district failed to testify er but have depended would fa specifically scrutinize each federal constitu- vorable testimony from members of tional in his petition. claim habeas Of his community. challenge This original post to counsel’s thirteen grounds for conviction performance attempts relief, to do precisely that petitioner eight asserts that have Court; which is this barred it invites us never been is addressed.13 He incorrect. Transcript, Trial Legislature every vol. 265-66. didn’t mean that in case gun apply. in which a this was used would especially 12. The offense was committed in an having in There be no sense this. heinous, atrocious or cruel You manner. Transcript, Trial vol. at 283-84. my argument heard Legislature to the Court. What the victim, mind has in is—the Willie specific 13. The claims are: Kelly, suddenly. died I doubt if he had a happening chance to (3) even realize what was Petitioner’s death violates sentence testimony to him. The was that came process due clause of Fourteenth in, all of a he saw sudden them. He started Amendment because was insufficient there gesture, to make a we don’t know what support finding jury’s evidence to that was, gesture stated, he was and dead. As I (a) knowingly offender created a risk of thing sickening it’s unfortunate. It’s a that great bodily death harm more than dead, instantly. the man is he but died Like I (b) person; offense and was com- argued judge, agreed judge and the heinous, especially mitted atrocious pictures with me because he felt that or cruel manner. should not be into introduced evidence. It (4) jury’s finding The offense was nice, doesn’t matter if a little it’s clean bullet heinous, especially committed in an atro- gun disgust- hole or if it’s a shot blast that is or cruel cious manner was violation ing died, people and bothers other around. He Godfrey the decision rendered in v. Geor- died, prosecutor I believe the com- gia, 446 U.S. dignified mented he deserved die in a more prosecution manner. If the can demonstrate (6) failing provide trial court erred in dignified, one sort of murder like to I’d limiting instructions on hear it. statutory aggravating circumstances. dignified. No murder is (7) adopt- Louisiana Transcript, (emphasis Trial vol. add- appellate ed). standards re- ed inconsistent thereby increasing the likelihood of presented view Defense counsel also a limited defi- arbitrary capricious sentencing and nition of the other circumstance: Now, every weap- death cases. of crime in sort which a upon imposed peti- on’s involved or takes sentence murder place, anyone certainly going disproportionate and area is tioner excessive Eighth to be in fear of their lives. I’m sure the Louisiana under law and statutory guid- nine, three, tioner lack asserts claims, numbers these Three of ren- ance mitigating about rejected twelve, specifically statute ders the Louisiana district Court. likewise This claim unconstitutional. concurring no error court committed merit. without Our decision analysis. with that court’s the need disposes of opinion this part II of V seven, since four, six, and claims to discuss assump- con- faulty petitioner point appeal, on the a final predicated these are As of first v. Zant comparative to this review Stephens applies tends tion dis- judicial convictions on a the fail- murder degree number ten attacks case.14 Claim statewide, violates trict, than basis about rather adequately instruct ure to and Furman Amendment mitigating Eighth role of weight of its failure supra, because Georgia, trial examining closely stances. After administra- and evenhanded the fair record, ensure we have determined court punishment stat- capital eleven also con- tion of Louisiana’s Claim spurious. claim is circumstances; ute.15 peti- here mitigating cerns along hearing, sentencing script of the to the Constitu- Fourteenth Amendments any, appeal, required shall be if the record tion of the United States. and the time the court within erroneously transmitted in the mitting (10) instructed The trial court form, applicable, trans- for insofar as mitigating jury concerning appeal. record for of such circumstances stances and in role Capital Re- Sentence Uniform Section 3. determining sentence. Report. penalty Investigation port; Sentence (11) penalty statute is The Louisiana death (a) is im- Whenever the Eighth and under unconstitutional Fourteenth tion expeditiously judge posed, shall the trial Amendments to the Constitu- complete a Uniform file in the record and of the United States. (see Appendix Report Capital Sentence allowing the The trial court erred in upon may “B”). the and the call The trial court present rob- state to evidence of an armed attorney, counsel defense district department Department bery petitioner’s charge of trial on the parole probation and degree first murder. any provide of Corrections number six

14. Petitioner’s counsel also waived complete report. needed to information argument was at oral not committed when the limiting ing when he stated that error judge (b) a sentence shall cause The trial give judge failed investigation and the re- conducted to be statutory aggravat- capital port instructions on to the uniform to be attached investigation report. He declared that error was shall circumstances. sentence inquire quent prior committed when the circumstance found an delin- situa- into the defendant’s improper family activity, which there and criminal education, background, economic basis. tion and status, any employment rele- and other and governs 15. Louisiana Court Rule 28 concerning defendant. vant matters This capital review: sentence sealed, except pro- report be shall Capital (appli- Rule 905.9.1 cable La.C.Cr.P. sentence review vided below. 905.9) Art. attor- (c) the district and Defense counsel Every Section 1. Review Guidelines. sen- copy ney pleted of the com- be furnished shall of death shall be tence to determine reviewed this court Report Capital and of the Sentence if it is In report, excessive. determin- investigation and shall be sentence ing oppo- whether the sentence is days excessive the to file a written seven afforded sition position op- court shall determine: contents. If the to their factual (a) imposed grounds, whether the sentence was un- sufficient shows passion, prejudice hearing contradictory der the influence of shall conduct court to resolve raised factors, any (b) arbitrary other and substantial factual issues cases, supports reports. whether the evidence In all statutory jury’s finding any, opposition, of a shall be attached circumstance, reports. (d) and (c) disproportion- lodging preparation of the rec- whether the sentence is to the cases, delayed pending imposed appeal penalty in similar ord for completion shall not ate Capital Sen- considering Uniform and the both the crime defend- Report. tence ant. Memoranda; Review Transcript, 4. Sentence Section 2. Record. Whenever Section Form; Filing. penalty imposed Time for tran- the death a verbatim trary imposition penalty, of the death reviewing the sentence in this made the Supreme Court follow- implied that such review is a constitu- never ing comparison of case with other mur- Gregg requirement. Georgia, tional su- der cases the district: Florida, supra; Proffitt v. Jurek v. pra; Texas, sentence review memoranda shows 262, 96 prosecu- there have 28 murder been review quoted Rouge tions in East Parish with Baton safeguards against provides adequate above degree eleven resulting in first murder capital punishment. imposition freakish eleven, convictions. Of these three a cross as a venire chosen from section Just were defendants sentenced to which the crime community death. These cases are strikingly three constitutional adequate committed is similar in that all three defendants arbitrary imposition safeguard against the actual killers the crimes all arose sentences, so a review of the verdicts and during perpetration of armed robber- within that ve- imposed murder convictions Williams, ies. See State So.2d to ensure community nire is sufficient (No. (La.1980) 65,563); Clark, State v. against of the death arbitrary imposition 66,573, No. appeal pending. We concur with statement penalty. Thus, a sentences imposed review of the this case that “we panel decision of parish same shows that in the cases would even hint nothing have heard defendant’s, most similar to the reject wholly unconstitutionality, imposed. Our review also argument.” 649 F.2d at shows a dissimilarity between the defend-

ant’s case first degree and the other mur-

der convictions in there arguably, VI are no aggravating carefully scrutinizing petitioner’s After there present mitigating circum- many points of we conclude appeal, that justified jury’s stances which the recom- Certainly, each lacks merit. we do not take mendation of life imprisonment. lightly here, where, such a as judgment considerations, light of the above we human hangs life Although in the balance. are unable that the to conclude sentence comply we duty with our to carefully con- imposed here is disproportionate to that petitioner’s claims, sider we step refuse to imposed in similar cases. further and assist in counsel’s efforts to ban (citations omitted). So.2d at 375 Therefore, we penalty. decline petitioner’s to enter

Although Supreme the Court has invitation the jury referred to statewide as room and speculate happened reviews commenda on what ble in the against effort to ensure an arbi- properly therein. Louisiana has narrowed (a) required synopsis In addition to the briefs on the ii. a facts in the the record appeal trial, guilt-determination concerning the the and the crime defendant in attorney district and the defendant shall the instant case. any file sentence memoranda relating review addressed guide- iii. other matter to the propriety

to the of the sentence. The form lines in Section 1. conform, applicable, (c) shall insofar to that Defense counsel shall file a memoran- required for briefs. dum on behalf of the defendant within the (b) attorney The district shall file the mem- time for the file state to its brief on the orandum on behalf of the state within appeal. The memorandum shall address provided time for the defendant to file his itself to the state’s memorandum and appeal. brief on the The memorandum guidelines other matter to the in relative shall include: Section 1. degree i. list of each first murder case in Expansion Section 5. Remand for imposed district in which sentence was may Record. The court remand the matter January after 1976. The list shall in- development relating for of facts number, caption, clude the docket crime whether is excessive. sentence convicted, actually imposed sentence and a synopsis of in the facts the record concern- ing the crime and the defendant. certify to the Court of (1982), to capital in cases. sentencing discretion juries’ question the same Su- conducts Louisiana The Louisiana Court Zant certified to preme in Su- review of all cases.16 thorough proper respectfully Georgia. dis- preme in Ed Burger, Chief Justice in dissent cases Oklahoma, agree majority with the supra, expressed dings basis, principled on a distinguished most here: “It never can be thought relevant can decision of implicit from the painful be less than our most of duties to I dissent However, question certify there pass capital majority cases ... I concur Court of Louisiana. every comes a time case when a court - rendered judgment must ‘bite the Id. the balance bullet.’” opinion majority IV of III and 883. That time has ar Parts S.Ct. at a different for in one instance although rived. majority set forth reason than AFFIRMED. opinion. RANDALL, whom Judge, Circuit with I. RUBIN, JERRE WIL POLITZ and S. capi- about with reservations Veniremen LIAMS, join, concurring in Judges, Circuit from jury excluded may tal be punishment part and dissenting part: unmistakably make service Because I think that con- clear that: fatally victed defendant was tainted automatically vote “(1) they would cause, improper juror exclusion of a capital punish- imposition against respectfully disagree any evidence that regard ment without would, alone, and I ground on that reverse trial of the might developed at the judgment denying of the district court them, (2) their case before attitude the writ as sentencing phase prevent toward the death remand for sentencing hearing. a new making impartial them from decision disposition That would render it unneces- guilt.” as to the defendant’s sary remaining to consider the con- asserted Illinois, Witherspoon v. 522-23 sentencing phase. stitutional errors in the 1777 n.21, 20 n.21, required the majority Since to address (1968) (emphasis in original). (and errors those virtue of its conclusion col- premise) juror nothing based on There was in the State-Brou excluded, I shall address the ma- Ms. Brou’s attitude properly loquy to indicate that prevent those jority’s penalty conclusions as to errors. With toward the death her decision respect stemming impartial to the asserted errors from as to making does not sup- rely from the lack sufficient evidence to and the guilt, Williams’ State on The port two the three her exclusion. ma- ground that for however, finds, stances found that Ms. Brou voiced jury, believe that jority Supreme imposition this court required by capi- opposition automatic Stephens,-- regard any tal evi- Court’s decision in Zant v. without punishment 1856, 72 -, 102 developed U.S. trial.1 might dence that Parker, (La.1980); implementa- Sonnier, passing 1 v. 16. We note in that since So.2d State 380 English, (La.1979); tion of 1037 State v. 367 Louisiana’s current So.2d 372 scheme, (La.1979). va- Court has exclude from We So.2d 815 cated more than it has af- foregoing death sentences in which the sentence list cases reimposed firmed. The in subsequently death was vacated sentence of but was vacated following Willie, Sonnier, (La. v. 410 So.2d cases: State 650 State v. 402 So.2d affirmed. (La.1982); Lindsey, Monroe, 1019 466 (La. State 404 So.2d 1981); v. 1258 397 So.2d State 1981); (La. Smith, (La. 1981). State v. 400 So.2d 587 1981); (1981); Sylvester, State v. 400 So.2d 640 Williams, (La.1980); majority that Williams State v. So.2d 619 does not contend 392 The Wainwright Culberth, (La.1980); barred, holding State v. 390 So.2d 847 under 72, 2497, Myles, (La.1980); Sykes, 53 L.Ed.2d State v. 389 So.2d 12 State v. 433 U.S. 97 S.Ct. majority opinion portion testimony sets forth a to establish a “record of automat- Brou, opposition penalty:” ic to the death colloquy underscoring with Ms. Then, question response. one and one in portion If one examines the underscored sentences, statement, clearly three construes that of her finds that (1977), asserting challenge, from his in this lief.” When the Louisiana Court then corpus proceeding, execution, stay habeas to the exclusion of refused to Williams’ no member Ms. Brou his because of trial counsel’s failure waiver issue of that court addressed either the object agree. to her exclusion. Witherspoon argu- or the merits of Williams’ recently ment, although justices This court has discussed the reason indicated some of the why Sykes they thought argu- bar cannot now be raised: others of Williams’ First, the State did not contend in the district ments had some merit. Washington’s court that Lockett [438 in federal When Williams filed this action 586, 2954, 98 S.Ct. 57 L.Ed.2d claim is 973] court, Witherspoon again district he raised his contemporaneous Mississippi’s barred ob argument ground habeas relief. as his first for such, jection Sykes. rule and As the State pleading, argued at some In his initial precluded raising itself is at this late length, considerable citation of au- and with any Washington date claim that should be law, thority, of Louisiana that as a matter theory procedural barred default, under state-law object to Ms. Brou’s trial counsel’s failure general principle appel for “[a]s point. In re- exclusion had not waived this review, late legal this court will not consider a however, sponding .petition, to his habeas theory presented issue or that was not again argue Wain- State did not waiver and district Noritake v. [federal court].” rather, wright Sykes; again contended 724, Champion, M/V Hellenic 627 F.2d Witherspoon that there had been no violation. See, Estelle, (5th 1980). e.g., Cir. Smith v. Neither did the State claim Williams had 694, (5th 1979) (State 602 F.2d n. Cir. failed to exhaust his state remedies. The dis- Sykes argument by failing waived its to raise waiver, trict court did not mention but went hearing prior it in the federal habeas to its directly to the merits of this claim in conclud- aff'd, trial), 454, motion for a new ing, without further discussion or visible (1981); 101 S.Ct. La- analysis, pages careful review of “[a] Wainwright, Roche v. 599 F.2d transcript 185 and 186 of the trial 1979) (State Sykes argument waived its sets forth the voir dire examination of the [sic ] by failing proceedings to raise it in habeas jurors question clearly three shows court). federal district mandates set forth the United States Su- Watkins, Washington v. 655 F.2d preme Witherspoon Court in the and Adams — (1981), denied, cert. strictly decisions were adhered to and followed by the trial court.” alleged In this case the State has never briefing argument panel, Wil- for the Wainwright Sykes despite bar to this claim again that as a matter of Loui- liams contended following facts. trial Williams’ counsel did law, object siana his trial counsel’s failure to cause; object Brou’s exclusion Ms. Witherspoon Again, had not waived his claim. argue point neither did his counsel in his the State made no mention whatsoever of appeal direct to the Louisiana Court. although quote response, it did waiver portions its (Indeed, assigns Williams elsewhere this failure transcript indicated respect as one in which his trial counsel ren- object. panel opinion failure to nowhere constitutionally assistance.) dered ineffective waiver, adopted in mentions but instead full the After that court affirmed his conviction and merits of conclusion of the district court sentence, changed lawyers. Williams this issue. Witherspoon appears issue to have been raised State, post en brief to even its banc petition for the first time in Williams’ for cer- arguing this court stated: “The State is not tiorari. After the Court denied certio- precluded should rari, that alleging Witherspoon defense be urged Witherspoon grounds Williams simply because no a error petition post-conviction in a for relief in the Thus, objection there is was raised at trial.” Louisiana state court in which he was convict- decision, merits, procedural State, on the no bar to a response, argue in ed. The did not that Witherspoon claim. argument; rather, of Williams’ Williams had waived this Finally, recent decisions Court’s simply contended that there had been no With- Frady,-U.S.-,-- erspoon Nonetheless, in United v. rejecting States violation. in 1584, 1591-1595, -, argument L.Ed.2d 102 S.Ct. this when it denied Williams’ re- Isaac,- actions); Engle (§ quests post-conviction stay for relief and a -, 1558, 1575, pending appeal, execution state court con- (1982) (§ actions), dealing authority cluded without citation that “[t]his Sykes Wainwright not address a matter deals with selection do and was appeal. should have been which the State elects not to assert considered on situation in It is proper subject post-conviction Wainwright Sykes not the for re- a bar. of the proceedings.” in the course emerge not return a that she could

she did state Illinois, 391 at 522 n. in- prosecutor Witherspoon When the death sentence. not to assure that she could 1777 n. quired again responded penalty, added). this Ms. Brou consider (emphasis it. think she could do that she did not Ms. Brou that colloquy demonstrates conjunc- is viewed in response When this where some cases there were thought clear previous with her statement of tion returned and should be penalty the death the rec- opposition penalty, to the death (“I know be refused. some where it should the death opposition ord of automatic to about you where read certain cases there is penalty is established. just you hideous that they them and are so Thus, Ms. Brou’s transforms would be think, oh, penalty the death serious reservations about assessment of the Brou, outcome....”) Thus, Ms. good circumstances, penalty per- death in some me, very is the embodiment it seems to case, haps in the circumstances of this into Witherspoon referred to in the venireman penalty the death opposition automatic to she distin- because who cannot be excluded regardless developed at tri- evidence in which of cases types guishes between flawed; analysis al. This method of is penalty the death recommend she could Moreover, conclusion, major- incorrect. juror could not.2 A in which she from those sentence, than the ity’s focus on one rather willing to say, to “I am permitted must to the man- colloquy, whole does violence and circumstances consider all the facts cau- Witherspoon inherently date of and its is a case; here emerges but if all approach jurors. tious to exclusion of of a the course during murder committed me, is proper analysis, method of it seems to I could recommend not think robbery, do whole, responses to examine her a mind- no more. Ms. Brou said penalty.” the death analysis Witherspoon. ful of the set forth in Furthermore, by the State to questions is, in the analysis The essence of that Brou, in contravention Ms. itself, Witherspoon words of that veniremen that a Witherspoon in Court’s instruction simply “cannot be excluded for cause be- to expected say juror cannot be prospective there are some they cause indicate would, he or she in advance of trial whether to kinds of cases in which would refuse fact, penalty in the vote for the extreme a capital punishment;” recommend improper; majori- particular “prospective juror expected cannot be support its responses on her ty’s reliance say in advance of trial whether equally finding opposition of automatic penalty fact vote for the extreme here, how- (“Her unwillingness to do so so. him;” and that a venireman case before ever, firm.”) juror expected can be No to con- may willing be asked “that he be decide, trial, is the type whether this before state penalties provided by sider all of the penalty can be of case in which law, irrevocably and that he not be commit- require To such a commitment assessed. ted, vote begun, before the trial has teachings of Wither- face of the flies in the regardless of death against penalty might spoon. the facts and circumstances robbery, Witherspoon may of a murder and a the co-existence holds that a venireman simply refuse to recommend the he or she fact that she would be excluded cause because penalty where of cases in one class of cases are some kinds indicates that there permit to recommend her to recommend it is not refuse State would he or she would juror. capital punishment. grounds me that this is This It seems to for her exclusion as cases in which a no less true the class of seems to me to be mandated where conclusion capital Louisiana, statutory venireman to recommend scheme would refuse fact punishment happens juror be coextensive with permits to refuse to recommend jurors of the State’s class of cases defined all have found the even statutorily-prescribed aggravating circumstanc- beyond doubt of one or existence a reasonable Specifically, Brou es. if it is the case that Ms. aggravating out- circumstances which more punishment capital refuse to recommend any weigh mitigating circumstances. only aggravating circumstance was where the her re questions proper,

Even were the the summary, majority’s conclusion states, not, were sponses majority as proper the exclusion of Ms. Brou was vacillating. (“Well, “firm.” Witherspoon. They justified cannot be under course, I don’t know that much about

case. I think in terms of how hide always II. ous the crime is I don’t know that because Williams relating asserts several errors much it. I don’t know. think about don’t three two of the circumstances aggravating most, it.”) I can do At Ms. state Brou’s by by found and the method which the Williams case reflected ments about his sentence was reviewed uncertainty as to her decision because she Louisiana. challenged Court of The two specifically apprised had not been (1) circumstances were: precedent precludes facts.3 This circuit’s Estelle, created a knowingly offender risk of death exclusion. Granviel her F.2d denied, great bodily or harm to more than one cert. (5th 1981), 678-80 Cir. person; the offense was committed Estelle, heinous, atrocious, Burns (1982); especially 626 F.2d 397- cruel 1980) (en banc). OS manner.4 uncertainty penal- person, 3. Ms. Brou’s about the death to more than one and the offense was ty colloquy heinous, especially is reflected not in the between committed in an atrocious quoted majority manner, the State and opinion, me, Ms. Brou in the or cruel it seems clear to after following exchange but also in the reviewing the record in this case and the deci- judge between Ms. Brou and the trial adopt- sions of the immediately preceded colloquy: the State-Brou ing narrowing constructions of you any THE 905.4(d) COURT: Do either of know of (knowing cumstances creation of risk why you you reason great bodily feel that should not or harm to more than one jury? could not serve person) 905.4(g) (offense committed in an especially manner), petitioner heinous that the Well, wondering MS. I’m BROU: about the is correct in his third claim for relief: no ration- question capital punishment. Does that proof al trier of fact could have either disqualify you you if don’t have a firm (as of these are conviction about that? Supreme Court) defined the Louisiana be- attorney THE COURT: I’m sure that the yond a reasonable doubt. See Jackson v. Vir- you question the State will ask so I 307, 324, ginia, will defer that until later. Insofar heinousness The State then commenced its voir dire ex- concerned, of the crime is the victim was shot Brou, prosecutor amination of Ms. and the be- immediately gun; after the defendant raised his gan purpose with a statement of the of his instantly. he died did defendant not tor- questioning. statement, Midway through that unnecessary pain ture or inflict on the victim. prosecutor made clear his aversion to a knowing Insofar as the creation of a risk of juror him, give who is unable to advance of great bodily death or harm to more than one trial, proper assurances about what concerned, person is the focus is on whether juror’s ultimate' decision in the case will be. contemplated the defendant and caused the juror The State is entitled to have a that can great great bodily creation of risk of death or of say, yes, requiring I can return a verdict person. harm to more than one The defendant penalty, proven if the case is to me and security guard point range shot the blank if proven circumstances are although nearby and store, customers were So, you point to me. don’t know at this beyond not could be found reasona- you me, are not able to tell then that knowingly ble doubt that the defendant created really help doesn’t me. Because don’t know great bodily a risk of death or harm to your what decision will be down road. them. Two customers were foot hit in the So, my question is also framed in this man- gun pellets shot when the accidental- defendant ner. ly (to majority employed by use the word prosecutor question then asked Court) opinion the Louisiana begins portion colloquy of the State-Brou dropped shotgun gun discharged and the quoted page majority opinion. 6 of the Clearly when it hit the floor. the defendant did seen, Although, contemplate injury anyone when as will be under Monroe, analysis dropped gun. its does State v. ques- not have to See address the Culberth, (La.1981); tion whether there was sufficient So.2d 1258 State v. evidence to support findings (La.1980); English, knowing- that the offender So.2d 847 State v. ly great bodily (La. 1979). created a risk of death or harm So.2d 815 constitutionally be those circumstances can Held? Majority Opinion Has the

A. What sustained. begins majority opinion Part II of the issue whether turns to the majority The that his

setting forth Williams’ claim proper was process sentencing discretion jury’s is violative of the due sentence by dis majority begins ly be channeled.5 amendment clause of the fourteenth Zant, Stephens 631 F.2d tinguishing evidence to insufficiency of the cause of the sub nom. Zant granted cert. 1980), cir aggravating the three support two of 90, Stephens, opinion U.S. jury. cumstances found (1981), certifying question a challenged then focuses on whether Georgia, Court of suffer constitu state law to the circumstances aggravating - Stevens, Zant v. nom. Georgia, sub Gregg tional defects under (1982), 72 L.Ed.2d 49 L.Ed.2d 859 102 S.Ct. 96 S.Ct. Stephens Georgia, ground Godfrey on the (1976), and cir unconstitutionally vague aggravating was one that jury cumstance found that, the Louisiana Su It holds because import jury to assess required did review the two chal preme Court circumstances, jury before the it facts and circumstances not lenged cannot be said crime, of the whereas part proof an as a of the adopted unconstitutionally have broad weigh Gregg jury construction of them in violation of in this its arriving Godfrey. This facile be facts of the crime itself and distinction jury requires proper The former might tween what be called an act of com decision. per Stephens. majority (Godfrey) guidance mission and an act of omission not, no Gregg citing (Williams) point misses the states the latter does properly a Godfrey. Gregg and God presence authority. The issue which for Williams circumstance cannot frey present appel aggravating whether because the two cases distinguish late affirmance of a death based in used to in each of a circumstance existed part jury findings aggravating of two such goes then on to assess product majority circumstances that are the of un them. The flawed potentially of the two open-ended impact channeled and constructions of attorney though judge may properly 5. The states that the trial submit Williams’ waived, list, aggra- argument, at the en banc oral Wil- a returns an erroneous ground indicating vating liams’ to instruct the six: the failure of jurors trial court that it con- circumstance proper scope sentencing reaching on the of the that factor in a sidered statutory aggravating circumstances obviated rises. That’s where the error decision. constitutionally required “guided the tion” that is a capricious discre- from him tak- THE That’s different COURT: hedge against arbitrary says reading ing the article and imposition of a death sentence. says? here’s what the law before, submit, your question propriety misspoke of a claim of I waiver COUNSEL: argument juror’s at oral transcript where there is no official its the return honor. I think that the proceeding. any event, indicating aggravating argument tape review of the oral the indicates improper factor into took that attorney such waiver: made no sen- when it returned account you THE COURT: Do I understand tell us That is the error. tence. judge that the trial the errs when he reads to attorney distinguish- It is clear that the articles or sections code aggravating jury’s ing consideration or statute involved and said this is the law in this area. Now jury’s grounds as for error from cumstances finding you apply what evidence circumstances you heard ... to the extent it fits this law question grounds to which the for error. The give speaks If and thing, us a decision. responded trial attorney was not whether the its circumstance for failing give judge instructions which erred was no evidence entered that there aggravat- application of each of the limited the ing jury? that’s a tainted read to contained in list submit, honor, your COUNSEL: I that’s attorney specifically Additionally, jury. Louisiana, an issue that’s unresolved in I do think but post ground en number six in his reiterated this judge trial submits argument supplemental brief. There banc erroneous returns —the no waiver. erroneous circumstances even 905.4 Article circumstances aggravating as are described jury. Those circumstances engaged offender was and of Williams’ crime going gravity to the or of attempted perpetration prepetration aggra- deciding whether the as material rape, aggravated kidnapping, aggravated circumstances vating mitigating and burglary, robbery. or armed aggravated weighed together indicate knowingly created a risk The offender imposed. agree. Why, should be penalty bodily harm to more great of death or then, assigned have jury may since the person. than one to Williams’ degree gravity weight or espe- in an committed The offense was erroneous under Louisiana crime that was heinous, or cruel manner. atrocious cially law, compelled are we not to vacate Jr. H. Sims. s/ Claude Because, major- according sentence? Foreman opinion, assigned weight ity jury 19, 1979 April simply by “reviewing] they prop- the facts or necessarily focused on erly jury knew. The done,

what not on how Louisi- Williams had recommends unanimously jury actions, they ana since were classified his to life be sentenced the defendant meaning not instructed on the legal proba- without benefit imprisonment us that terms involved.” The tells tion, of sentence. parole suspension narrowing very adequate, absence of _ s/ aggra- challenged instructions on the two Foreman vating jury circumstances means that begin- portion of the Recommendation actions in classify did not in fact Williams’ through “Article 905.4 ...” ning with Louisiana law. contemplated by the manner is written in the signature of the foreman so, they couldn’t have done because They jury of the foreman. The handwriting analysis weren’t told how to do it. This the exist- clearly thought they finding squared did cannot be jury what the set circumstances aggravating ence of three the facts. The hard evidence we have 905.4, they were instruct- forth in Article Jury of what the did is the Recommen- jury required to Though they do. were not ed to dation, signed by the foreman and delivered so, carefully gave the court statu- they do court, required by all as jury measure. The tory good reference for is set forth in full law.6 It below: Wil- classified focus on how Louisiana did actions, wrongly in the case of liams’ albeit JURY RECOMMENDATION circumstances.7 As two of April Filed below, way no simply there is shall see we Article 905.7 Form of recommendations classifi- jury’s mistaken to tell whether changed the found the below listed statuto- Williams’ actions

Having cation of balancing or circum- in its ry aggravating jury assigned weights and, stances after consideration circumstanc- mitigating offered, however, circumstances on what mitigating focuses majority, es. The meaningful portions recommends that defendant to be “the it declares sentenced to-death. verdict, (1) aggra- that at least one of this present vating circumstance

Aggravating circumstance or totality that under stances found: thority required specify the factors it re- Jury I note that Recommendation decision, reaching upon specified by its the further art. lied form La.Code Crim.Proc.Ann. safeguard meaningful appellate (West 1976), review is requires 905.7 statutory that death sentences are not available to ensure list all the imposed capriciously freakish man- or in a con- find. Article is doubtless 905.7 ner.”). appellate review con- structed to facilitate the by Gregg templated Georgia, 428 U.S. at (“Where sentencing au- supra. 96 S.Ct. at 7. See note vile, wantonly offense was “outrageously circumstances the death mitigating judges horrible and inhuman.” The imposed.” why should be But are report- Court addressed in the text the one meaningful were the qualified say what in which ed case insofar as portions of the Recommendation had affirmed sentence Georgia a death the members of the were concerned? (b)(7) on a and noted solely finding based Furthermore, developed as will also be be- horrifying torture-murder. low, having that once found one the notion the opinion only Note 53 to the canvasses circumstance, jury the aggravating valid cases of sentences reported other based the permitted should be and is to evaluate (b)(7) and notes that part in whole or in on guided offense free of circumstances of the did not con- Georgia the Supreme Court require- the ignores channeled discretion (b)(7) on in those cases gloss tribute to the ments of law as it has capital sentencing (b)(7) when it rely because it did not on developed during the last ten years. no sentences. There is upheld the death majority The then moves on to announce in note 53 of the analysis discussion or a new The ma- principle of habeas review. appellate method of re- propriety of this jority states: “The view; the that was not the focus of note. stances which were not considered and lim- the Godfrey Georgia, supra, In v. Su- by ited the court serve as appellate do not sentence preme Court vacated the basis for the death Al- sentence.” (b)(7). It had no occasionin solely based on unclear, though it is somewhat what the itself to consider the method of Godfrey that, majority appears to be is under saying a sentence based on appellate review of (no provided), Louisiana law citations the circumstances. multiple aggravating by circumstances not reviewed the Supreme Court “do not serve Oklahoma, the supra, v. Su Eddings as the basis for the death sentence.” The be preme Court vacated a death sentence majority then on to goes say base the trial “[w]e cause it found that the Oklahoma sentence” on the one circumstance which placed Appeals court and Court of Criminal that court did review. Since we are not mitigating they the evidence limitations on sentence, assessing majority the what the Lockett v. would consider in violation of court, must be saying 586, 98 2954, is that this in review- Ohio, 57 L.Ed.2d S.Ct. ing the constitutionality petitioner’s so, of the it had no occa (1978). Having done sentence under 28 will appellate U.S.C. re- the method of § sion to consider view multiple ag the circumstance re- on review of a sentence based by Supreme viewed the Louisiana To the extent gravating Court. circumstances. majority The cites can drawn from support as for this meth- conclusion - Oklahoma, od (Eddings of habeas review three notes 3 and 4 v. Supreme Court cases in each of which at-nn. 3 & 102 at 873 nn. grant- certiorari was U.S. S.Ct. 4) opinion Court’s Supreme ed to review the decision of 3 & to supreme ap Eddings position court of a about the Court’s affirming state a conviction and review, me that pellate it seems to appeal Gregg sentence on direct v. Geor- — court on is that the trial suggesting gia, supra, Godfrey Georgia, supra, “heinous, reconsider its resentencing should Eddings Oklahoma,- noteworthy it is finding; atrocious or cruel” (1982). S.Ct. cases in a case suggested that reconsideration is do by majority support cited other in which there were two review, majority’s rule of habeas nor do sentencing circumstances found support a similar rule of appellate judge. review. text accompanying note Supreme opinion in Gregg Court’s Import of Zant v. B. is the Ste- What Georgia, 428 at at phens? simply placed addressed to the construction or even not address Georgia Court of on the does

(b)(7) opinion in Court’s aggravating circumstance—that advert to (1980). Georgia The Court stated that 102 S.Ct. Zant v. Stephens,-U.S.-, is clear It never articulated 72 L.Ed.2d Court had Zant in which the Court premise the manner law that conclusion. state Zant posed to it in question at-, defined Stephens,-U.S. on the distinguished Williams cannot be articulation, according to Such 1858. Zant to assess the jury had

basis that Court, analysis be relevant to its be circumstances not import of facts and at-, Id.-U.S. the case. proof part as fore Williams, crime, whereas possible several suggested then The Court crime itself.8 the facts of the weigh only Georgia rule.9 for the bases in Zant as: was defined question the rule is a implicit may be that It reviewing constitutionally court “whether multiple findings determination long as at may sustain a death sentence are statutory aggravating statutory aggra plurality least one of a or a determination superfluous, vating circumstances assume the role reviewing may court Id. supported by valid and the evidence.” recom- sentencing jury when the jury the at-, (empha at 102 1858 -U.S. S.Ct. penalty legally under mended the death added). Supreme Court Georgia sis Court, the In this erroneous instructions. stated that it could consti consistently as his Attorney General offered Georgia a death sentence in those tutionally sustain following construction State, understanding 587, circumstances. Gates v. 244 Ga. first find denied, jury must (1979), cert. 349, of state law: The 445 261 358 S.E.2d statutory aggravat- 938, 1332, one or more 100 63 L.Ed.2d 772 whether U.S. S.Ct. certiorari, majority opinion appears distinguish Justice Stewart stated denial of 8. The aggra- Stephens ground aggravating the flawed circumstance found on the that by “facially vating Stephens constitutionally justify in jury “could not unconstitutional,” challenged the two sentence, whereas Georgia pro- law would aggravating facially alleged in Williams are not finding the error was a further hibit harmless per Gregg only but are unconstitutional simply of the existence because applied. I fail to be unconstitutional Id., aggravating at circumstance.” the other why makes at see that distinction sense 1001, that the at 542. He believed 101 S.Ct. all, explanation by majori- and no is offered position Georgia Supreme is- on the Court’s said, dissenting ty. in State As Justice Dennis capital Georgia with the sue was inconsistent 1258, Monroe, So.2d 1281: “A verdict v. 397 “only punishment the trial scheme because finding upon evidence insufficient for a based judge jury what can know and determine or just beyond as unconsti- a reasonable doubt upon appellate has been review it to do when facially tutional as one based on unconstitu- aggravating particular cir- that a concluded cumstance should not Virginia, 443 U.S. tional statute. Jackson have been considered 2781, [,314, 320-24], 61 L.Ed.2d 307 99 S.Ct. sentencing to death.” Ibid. the defendant in (1979).” WHITE, dissenting, would also JUSTICE assumptions light held members 9. The different in for reconsideration have remanded meaning Supreme as to the Court Godfrey, disposition that “would allow Georgia Supreme constitutionality of Georgia Supreme first instance in the Court position were illustrated in the Court’s Court’s penalty death to determine whether the opinion in Zant. regard to the without should sustained 541, Zant, In Drake 449 U.S. Id., validity Godfrey at circumstance.” (1980),the declined to 66 L.Ed.2d 297 “not at 543. He did under- judgments grant in certiorari and vacate Georgia ... to hold either stand the cases Georgia in the death sen- cases which Supreme Georgia without Court is that the (b)(7) aggra- premised part tences— vating penalty power if it sus- to set aside a death imposed prior circumstance—were aggravating circum- one of the tains Georgia, Godfrey our decision in that, although jury stances found invariably power, will the court has Stevens, concurring disposi- Justice penalty in such situa- not disturb the death tion, Georgia expressed opinion that the Ibid. tions.” position was so clear that Court’s — -, n.2, Stephens, at Zant v. the cases for there was no need to remand reconsideration S.Ct. at 1857 n.2. Id., light Godfrey. Dissenting from the 101 S.Ct. at 542. isiana rule prem- is and what the ing circumstances have been established state-law exist- beyond a ises for that rule are. reasonable doubt.

Id. Zant v. S.Ct. at 1858. trary undermine gia capital-sentencing system, as we un- derstood it in death constitutional muster. such ty makes a we would be Georgia Supreme ha[s] mined warrant the death making the trial.” tion and In view of takes the fenses the state es the evidence before the The Court concluded: all murders to the narrower class of of- death rizes ence of one or more stances is a threshold - Gregg is a this might determinations, been introduced at both penalty; penalty and Stephens, U.S. at possible punishment, finding mitigation v. Georgia, supra, that the Geor- jury jury separate finding premature conceive as a basis for the the confidence we capricious finding then, circumstances but should be -, from the to consider it serves as a foregoing uncertainty, “not - Court’s would avoid the arbi- legislature would otherwise upon finding to decide whether 102 S.Ct. at 1859. imposition of the punishment imposed. general penalty. position, might imposing of the others whether the bridge has deter- expressed phases statutory aggrava- upon class of It bas- autho- penal- After then pass all it Court’s rule on ently 2537(e) (emphasis added), and that provision evidence finding cumstance cumstance. finding Court to determine whether “the legislature preme tional The Louisiana be vacated State, Gregg Georgia, supra. invalidate of mind to the victim’ .. . does not erroneous jury, 2919-2920, 49 L.Ed.2d invalidate the other death U.S. 233 Ga. (1974); cumstance found and the sentence of vating does not so taint the At the “Where two or more (1979): Georgia Supreme borrowed requirement ^[153] of a of a based thereon. Gregg present circumstances are found supports Gregg 117, 127-128, Ga. has directed the whenever the ...,” the valid failure of one circumstance application We note that statutory aggravating statutory circumstance of quoted 587, 599, we know of no constitu- v. Ga.Code that a death sentence 162 Georgia, supra, parts Georgia Court in Gates v. jury’s proceedings [96 of the statutory aggra- 210 S.E.2d 659 859] circumstances. of the verdict As stated Ann. Georgia approval S.E.2d ‘depravity errs in its ... statutory v. Georgia 2909 at judge’s appar- State, § as to 27- 428 cir- Su- The Court then certified the following of the jury.” question to the Supreme Georgia. Court of Monroe, (La. 1276 State v. 397 So.2d What are the premises of state law that 1981). The restated Louisiana court has support the conclusionthat the death sen- this rule in the context of review of death tence in this case is impaired not sentences. invalidity of one of the statutory aggra- finds more than one statuto [I]f vating circumstances found by the jury. ry aggravating circumstance and one is - Id. 102 S.Ct. at 1859. record, it is un clearly supported by the the sentence be necessary

In view of the to overturn importance of the state- premises Georgia (or more) law for the the additional stat Supreme cause one Court’s rule to the constitutional issue circumstances are utory aggravating Monroe, Zant and the resulting decision of the v. 397 So.2d supported. Su- State preme Williams, Court to certify Georgia (La.1981); v. 383 Su- State preme denied, Court an into inquiry premises, (La.1980), those cert. So.2d 369 we must in Williamsconsider what the Lou- 828]; [66 We have no warrant do Louisiana law. (La.1979), Martin, 376 So.2d State Supreme Court has denied, 101 S.Ct. 540 for Louisiana what the cert. majority If the Georgia. refused to do for L.Ed.2d 297]. [66 Witherspoon correctly of the disposed that at least found jury properly I, (which doubt, supra), then issue see Part statutory certify to the compelled by Zant to engaged we are existed, is, defendant ques- Supreme Court10 the same robbery of armed perpetration murdered; Supreme Court there- the United States tion as when the victim in- unnecessary Georgia Supreme Court. fore, consider we certified jury correctly of the quire implicit whether decision dissent from other that the that. not to do existed. of Zant for Implications What Are C. Mattheson, 1150 at 1166 So.2d State Habeas Review? Our added).

(La.1981) (emphasis de- procedural than a more Zant involves Georgia in Monroe to the The citation to fill in the the state court permit tour to and the Louisi- rule as construed in Gates Instead, reason for its action. rationale restatement of Supreme ana Court’s own to be the appears for the certification rule in Mattheson demonstrate way in which both with the concern Georgia rule. Court’s adopted Louisiana has at a law the arrives Georgia that Loui- under surprising considering This is not to assess the previously adopted, large part, siana had decision Georgia procedure. with the function Georgia capital sentencing Wil- scheme ... serves the sentence.11 Georgia sentencing reviewing “The habeas sentencing procedure grounds as a model for our on both as liams relies Culberth, (C.Cr.P. 905-905.9).” prongs State The dual relief. (La.1980). La.Code Compare stem, part,

So.2d at least inquiry Court’s 905.4, (West 905.5 art. contem- process Crim.Proc.Ann. review jury-appellate §§ 1976) Rule La. supra. Gregg Georgia, plated by Rules, Stewart, 27-2534.1 with Ga.Code Ann. § of Justices Gregg, opinion (Supp.1975). that the Powell and Stevens asserts under sen- imposed “could not be Court Supreme while the Louisiana But that created a substan- tencing procedures Georgia rule as the adopted the same be inflicted in an risk that it would tial Court, with no provided it has us Supreme manner.” arbitrary capricious and premises as to the state law guidance more opinion goes That at 2932. S.Ct. Georgia Supreme rule than the for that say: on to majority The has itself provided. Court has where discre- mandates that Furman what must be classi- supplied a number of sentencing body tion is afforded for the Louisiana premises fied as state-law of as the determination rule, grave matter so single benefit of a citation without propositions questions provides: or of Louisiana such rule 10. The Louisiana certification discretion, may, in its de- law. This court Supreme appears to the of When it Court questions States, certified to it. any to answer the of cline United or to circuit court the States, may provisions appeal are of this rule be invoked there of the United ques- any proceedings Supreme before it or involved in Court of the United States the propositions state appeal or of law of this any tions of of the United circuit court of cause inde- sug- which are determinative said upon upon motion or its own States any questions pendently in other involved of any party. gestion interested or motion of no clear control- said case and that there are 1981). (West Supreme Rule 12 Court Louisiana ling precedents decisions of the su- state, preme federal court of this such court rendering Zant is a habeas Presumably since may certify such before a decision with the role of will also be concerned Court questions propositions of law of this state or constitutionality reviewing the habeas court in of for rendi- to the Court Stephens’ sentence. of opinion concerning judgment or tion of a review, Stewart, opinion taken or of Justices whether a human life should be suitably spared, that discretion must be Gregg and in then addresses Powell Stevens minimize the directed and limited so as to the claim that specifically capricious of arbitrary risk and wholly (the there involved offense circumstance action. vile, horri- “outrageously wantonly opinion Id. at at 2932. inhuman”) and vague S.Ct. ble and was so broad carefully drafted statute declares that a juries arbitrarily leave free to act as as to ag- circumstances of pointing the main in deciding wish capriciously and as gravation should be mitigation and penalty. impose whether to against weighed weighed each other that this agrees arguable is opinion provides guidance sentencing author- murder, be found in circumstance could ity and reduces likelihood the sen- reason to but concludes that there is no will tencing authority impose a sentence of Georgia that the assume capricious or arbitrary. opinion that is an construc- adopt open-ended such Gregg, of Justice White in concurred in Court of By looking tion. Rehnquist, The Chief Justice and Justice which an Georgia to weed out those cases in placed strong emphasis on role also of aggravat- overly broad construction statutory aggravating circumstances lim- applied jury, ing iting jury Gregg Georgia, discretion. appellate opinion again “meaningful made at 2947. A part of the constitution- integral review” Court, therefore, emphasizes critical penalty provided ality importance channeling discretion, jury This crit- Georgia sentencing scheme. i.e., providing with standards to may help review appellate ical function of guide its use of the information relevant to explain that the has thus why it is imposition of sentence. Id. at po- adopt far declined to Justice Marshall’s Finally, at 2935. opinion Jus- sition, concurring opin- in his expressed Stewart, tices Powell Stevens also em- ion in at 436- Godfrey Georgia, phasizes the safeguard “further of mean- instruc- S.Ct. at that the ingful appellate review” “the factors [the jury] upon reaching relied tions must include the narrow- its decision” as themselves safeguard against a further arbitrary overbroad ing potentially construction capricious imposition the death penalty. seems circumstances. It (emphasis (as Id. added). Georgia me, therefore, assessing that a habeas court Louisiana, 6, supra), see note constitutionality of a death sentence required by factors, statute to list those imposed under a such as statutory scheme thereby appellate facilitating review.12 Georgia-Louisiana either of the twins must degree to general guided jury’s Within that review both the framework of jury discretion meaningful appellate suitably and the discretion was channeled denied, Gregg 938, 1332, cert. specifically 12. the While Court in did 445 U.S. 63 not S.Ct. presented (1980), Georgia address the issue Zant in and Wi7- has de the court liams, Zant) (“nuance,” that, just of per since that clined as a matter state issue do law to Gregg, presented State, was in it not me that as Monroe v. seems to in So.2d explicit opinion 1981), the reference in the (La. Supreme of Justices Court has the Louisiana Stewart, (Gregg, Powell and Stevens as a matter of state law both to review declined 2935) at at existence of the on and to vacate the sen all factors relied meaningful appellate Zant, review of the factors re- any unsupportable. tence if In the is upon by jury reaching alia, lied in the decision explicit its asking, inter is for a more Court specified by jury the its Recommenda- principles appellate review statement of the suggests may tion Justices have those Georgia Depending the court. followed thought Georgia Supreme the with, up Georgia upon court what the comes would, law, as a matter of state not mention to may has indicated that have to the Court generally accepted principles appellate re- Georgia constitutionality the the reassess view, review all those factors and vacate the statute, applied aggravat multiple at least as any unsupportable. if In Gates sentence was ing circumstances cases. State, (1979), 244 Ga. 261 S.E.2d Conspicu- listed in review of cumstances the statute. appellate meaningfulness 905.4, which lists ously missing Article sentence. circumstances, is statutory aggravating the 905.5(h)— language the found in Article Jury’s D. Discretion Channeled? Was the mitigating other relevant “Any careful legislature paid The Louisiana is as giv- viewed commonly stance”—which and its cases. Gregg companion heed to broad consider jury the discretion to ing statutory aggravating scheme lists nine might not mitigating circumstances that directed the circumstances circumstances Lockett qualify under balance of 905.5. pro- the offense and character and Ohio, at pensities per- is jury of the offender. The means interpretation also majority’s only aggravat- mitted to consider the nine sup- behavior that would not that the same above, ing circumstances listed. As noted statutory of a port finding aggravating a jury required is to make its recommen- (and pen- therefore the death circumstance statutorily form prescribed dation on aggravat- alty) only potential if it were jury for the the aggravat- calls to list support case will ing circumstance finds, thereby which it ing circumstances of a finding nonstatutory review facilitating (and contribute to cumstance therefore Louisiana, ev- which is mandated to review validly penalty) if there is another sentence of death if it is ery to determine statutory aggravating circumstance excessive. any support case. None of this finds is jury Insofar as channeled discretion law, de- accurately and if it in Louisiana concerned, holds that opinion sen- by which Williams’ process scribes the jury find the only Louisiana assessed, may that fact alone tence was statutory aggravat- existence of one valid any process. a denial of constitute due circumstance, ing under channeled properly event, guid- specific process lacks discretion, to impose penalty. evaluating discretion in jury ance of so, Having done free jury thereafter of the crime mandated circumstances to consider the circumstances of the crime Gregg.

(but facts not part not before the as Review “Mean- Appellate E. Is Louisiana crime) “stan- proof free of ingful?’’ guide

dards to its use of that information.” Gregg Georgia, above, analysis key As noted at 2935. Let us consider what that means constitutionality of Williams’ sentence this case. The found the existence received whether that sentence question in this case of two aggravating circum- Louisi- appellate meaningful review. stances—the offender created a knowingly wheth- ana Court considered risk great bodily of death or harm to more the first er person, than one offense was com- to review the and refused properly found especiallyheinous, atrocious, mitted in an that, rule even the court’s other two under cruel manner—that would not qualify by the unsupported the other two statutory aggravating circumstances as the be affirmed. sentence would evidence, the Court has construed on the premised must be procedure This them. What means is that the list of as a of law the matter proposition circumstances which the finding of other jury’s was in- permitted consider jury’s deci- did affect eleven, having in this case to been penalty. creased On the death sion to recommend by two augmented our decision reasoning point, this Stromberg as v. qualify statutory aggravating would not as derived from Stephens, 532, 75 California, 359, This teeth of the circumstances. flies in the 283 U.S. 51 S.Ct. jury (1931), is to a determi- helpful Louisiana statute which limits the L.Ed.2d 1117 review. adequacy appellate consideration nine nation of the Zant, Stephens facially 631 F.2d at 406. How based on a can unconstitutional stat- a reviewing appellate know the court de- 307, v. Virginia, ute. Jackson gree to which improper aggravating cir- 2781, proper cumstances interacted with the ag- Monroe, (La.1981) at 1281 State So.2d gravating circumstance and affected the (Dennis, J., dissenting). jury decision to impose death? Id. As Jus- us, In impossible the case before it was tice Dennis of the Louisiana Supreme Court Court, just for the Louisiana as it stated in reviewing a case similar to the one court, impossible is for this to determine before us: af- satisfactorily verdict was not record, On this jury believed the jury’s fected mistaken impression evidence, state’s defendant’s death sen- qualified crime under Article 905.4 tence could constitutionally have rested (which jury authority cited as for its on a finding engaged that he was Recommendation) heinous, especially aggravated burglary, or knowing- that he atrocious or cruel and that Williams’ actions ly created a great risk of death or bodily presented the threat of or great harm to more than person. Since bodily harm to more than one person. finding of an aggravating circumstance is for, a necessary ground but does not re- that, seems to believe be- quire, the penalty, however, it is findings cause extra went “[t]he impossible say grounds whether these crime, gravity power of his not to the jury’s alone were the basis for the verdict. On to impose penalty,” the invalid the contrary, tell, so far as we can it is imper- circumstances had no equally likely that the jury would have missible effect on the decision rec- juiy’s recommended life imprisonment if it had ommend the death penalty. submit that thought the defendant was precisely it is gravity evaluation of the guilty of killing heinous, in an especially of a crime which is the Supreme Court- atrocious or cruel manner. mandated basis for jury’s decision to Several United States assess the death If penalty. jury holds decisions have clear and forceful applica- impression an erroneous gravity tion here. Maryland, Bachellar v. crime, may its discretion not be effec- 564, 1312, 90 S.Ct. 25 L.Ed.2d 570 tively channeled as by Gregg commanded (1970); York, Street v. New 394 U.S. progeny, and its can reviewing nor court 89 S.Ct. (1969); misconception know how that affected its Yates v. States, United 354 U.S. decision. 1064, (1957); Strom- As Justice Dennis succinctly so reasoned berg California, 51 S.Ct. Monroe, supra: State 532, 75 L.Ed. 1117 (1931), the high court held that a criminal conviction must be Moreover, I do not rationally see how it reversed if could have based the may be contended that a which erro- verdict on an unconstitutional statutory legally found three neously believes ground, though even there were other circumstances to exist will valid statutory grounds which the jury in apt more to recommend that not be fact may employed. have cases, In those be sentenced to death defendant than a since the defendants’ convictions “may correctly jury which believes that the de- have rested on an unconstitutional guilty of a involving fendant crime ground,” [emphasis Bachellar v. added] circumstances. To think Maryland, supra, 397 U.S. at is to ignore otherwise the realities of a they were set aside. capital sentencing hearing. .. . [I]t

highly unrealistic and purely artificial A verdict upon based evidence insuffi- think that a which believes three cient for a finding beyond a reasonable aggravating circumstances exist will not just doubt is as unconstitutional as one likely impose be more a death Louisiana, 998-99, Martin only jury which finds Ordi- than [one]. jurors likely 540, 541, to be led to nary (1980) citizen are that, if a the common sense conclusion J., dissenting from cer- (Stewart, denial of can be to death for mur- put defendant tiorari). involving just cir- aggravating der one Supreme Court could Since the likely exist the more cumstance found to that, law, as a matter of the chal- not hold any mitigating it is that lenged circumstances did aggravating death outweighed penal- are and that the sentence, the of the failure affect William’s ty appropriate. circum- to review those Louisiana court (Dennis,J., dissenting). at 1281-82 Fur- Id. meaningful not constitute the stances did thermore, Justice has echoed Jus- Stewart of the sentence that appellate review tice Dennis’ dissent in his dissent to the under the constitutionality to the critical denial of certiorari in Martin Louisiana: of Wil- and fourteenth amendments eighth imposed jury The Louisiana is free majority liams’ sentence. If penalty upon petitioner death constitutionality on the pass under Zant to aggravating circumstances: which I point, Williams’ sentence at created petitioner knowingly had a risk doubt, from the refusal of then I dissent to great bodily of death or harm more that sentence unconstitu- majority to hold (2) he had commit- person; than one heinous, especially ted the offense in an tional.

atrocious, or cruel manner. So.2d affirming the 311-312. death III. sentence, the Louisiana

held that the found the in its properly majority had While I with concur Id., first circumstance. aggravating inef- holding did not suffer that Williams 312. It then since reasoned that guilt fective of counsel at assistance the power petitioner had to sentence am to disa- sentencing stage, I constrained on the single to death basis of a aggra- rea- majority’s gree aspect vating circumstance, there was no need assist- claim of ineffective soning for it to review the correctness of the phase. sentencing at the ance counsel jury’s finding of the second claims error One Williams’ circumstance. Ibid. in- request limiting his failed to counsel statute, Under state death penalty statutory aggravating structions on the however, while the jury permitted were considered cumstances that capital punishment impose where it found that, reasons because jury. only single aggravating circumstance, it argu- in his was not counsel stated the limitations required to do so. La.Code Crim. Proc.Ann., (West Art. Supp. 1980). 905.3 failure mitigated any ment to he jury, reasoning, The Louisiana court’s there- instruc- limiting of the give trial court fore, ignores the possibility some of tions. instructions Suppose jurors may have voted for crime, and Wil- left out of the an element sentence because of the existence of the object. Is it now to liams’ failed lawyer alone, second that, lawyer be the circuit law in this may or that others have voted for the find that told needed to the jury that because of the exist- convict, effectively element in order ence of the two circumstanc- court to mitigated trial the failure es. give instruction and he was necessary jury’s impos- thus makes verdict therefore not ineffective? sible whether some all of determine instead, was no would, hold that there jurors relied on the exist- may have on the evidentiary hearing need for an ence second apposite United States question stance in im- because their decision to reaching pose the sentence and Louisiana of death. # 13 not, (ineffective Ground guilt Court law did the trial require counsel— court give limiting instructions. As phase) concur —I recently as prior three months to Williams’ grounds seven, This leaves ten and eleven. trial, Court, State While Williams was entitled to a district (La.1979), 823-24 English, 367 So.2d court determination of grounds, these gave of the limitations its construction has briefed these issues to this court. circumstances before us Thus, I believe findings as grounds to these

(heinous, atrocious and cruel and risk of inappropriate.13 are person). harm to more than That REAVLEY, Circuit Judge, concurring court, however, explicitly did not find error part: failure give limiting in the trial court’s instructions nor it establish the require- did I, I II B Judge concur Parts and III of ment that it do so. opinion. Randall’s above,

Additionally, set out in Part II

the United never States limiting

mandated that instructions be giv-

en jury, but has implicitly adopted position is in appellate that it review aggravating- limitation of circumstanc-

es is Thus, to be accomplished. under the

analysis court, developed the failure grant district court Williams an CHIASSON, Plaintiff-Appellee, James L. evidentiary was not hearing error. There were no facts which could be developed at such hearing have aided Wil- AND ROGERS TERMINAL SHIPPING liams’ case. CORPORATION Northwestern Na- Company, tional Insurance Defendants- IV. Appellants.

Finally, the majority gives little attention grounds. Williams’ other One of Wil- No. 80-4005. liams’ main throughout claims his appeal is Appeals, Court of that no United States federal court has in this habeas corpus action Circuit. addressed all his Fifth grounds for believe, relief. case, in any habeas but 28, 1982. June especially in a capital each ground affecting granting or denial of relief

should be addressed. Thus I summarize the

claims I have addressed in which I concur

with the majority: (Witherspoon)

Ground 1# basis for —a reversal (ineffective

Ground # 2 counsel—sen- tencing phase) concur with the ma- —I conclusion,

jority’s though in one case

for a different reason (errors

Grounds # 3-6 relating to find-

ings of invalid aggravating circum- stances) for reversal —bases (failure

Ground # 8 to review on dis- basis)

trict concur —I majority agreed 13. The Louisiana with the determined twelve. state there was no error as to claims nine and concur. court determination.

Case Details

Case Name: Robert Wayne Williams v. Ross Maggio, Jr., Warden and the Attorney General of the State of Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 21, 1982

Citation: 679 F.2d 381

Docket Number: 81-3159

Court Abbreviation: 5th Cir.