*1 two alone sufficient produced witnesses evi- ment failed to show that the OUN was dence to support the district court’s authen- hostile to the United States at the time anmeldung visa, therefore, tication of the and the abmel- for a the inimi applied dung. probative cal list has no value. The Fifth consistently Circuit has held evidence Evidence, The Federal Rules of if should be admitted rather than excluded however, support add to the district court’s it has value at any probative all. United finding anmeldung that the and the abmel 1018, (5th v. Holladay, States 566 F.2d dung were properly authenticated. Under denied, Cir.), 831, 108, cert. U.S. 902(3), Fed.R.Evid. a document is self-au (1978); Sabatino Curtiss purports thenticated if it Springs, National Bank of Miami 415 F.2d to be executed or attested in his official (5th 1969), 635-36 Cir. cert. denied 396 capacity by person authorized L.Ed.2d 752 foreign laws of a country make the (1970). Doubts must be resolved in favor of attestation, execution or and accompa 1020; Sabatino, admissibility. Holladay, nied a final certification as to the at 636. proba The inimical list had some genuineness of signature and official tive value. district court therefore position (A) executing of the or attesting properly allowed it into evidence. The person, (B) or any foreign official of probative amount value the list inimical whose certificate of genuineness signa goes evidence, weight contains ture and position official relates to the not to its admissibility. execution or attestation or is in a chain of genuineness certificates of signature position relating
and official to the execu CONCLUSION tion or attestation. above, For the reasons stated we find A Russian official authorized to authenti- that the district court committed no error in cate such documents attested to the anmel- the proceedings. Accordingly, affirm dung abmeldung. and the These docu- the order of the district court.
ments, therefore, were self authenticated AFFIRMED. under 902(3). rule compe- Since there was tent evidence in the record to support the
district finding court’s the anmeldung
and the abmeldung were properly authenti-
cated, the district court did not abuse its by allowing
discretion them into evidence.
Whether anmeldung or abmeldung Roger forgeries go COLLINS, were fails to Petitioner-Appellant, their admissibility, but rather weight of the evidence. The documents are FRANCIS, Warden, Robert O. Diag- Ga. relevant and material. The documents are nostic and Center, Classification not inadmissible hearsay they because come Respondent-Appellee. within the ancient exception document’s the hearsay 803(17). rule. Fed.R.Evid. No. 83-8097. authenticated, documents were they United States Court of Appeals, have been in existence for twenty years or Eleventh Circuit. more. Mаrch 1984. (b) Inimical list Rehearing and Rehearing En Banc The district court admitted into ev May Denied
idence a list compiled containing the DPC all organizations hostile to the United Koziy govern-
States. contends that
See also 243 Ga. S.E.2d 729 and
Christine Atlanta, Ga., for petitioner-appellant. Hildenbrand, Hill, Janice G. William B. Jr., Gen., Atlanta, Ga., Attys. Asst. for re *5 spondent-appellee. HILL,
Before TJOFLAT and Circuit SIMPSON, Judges, and Senior Circuit Judge.
PER CURIAM: Roger was in the Supe- Collins convicted Georgia, rior of Houston County, rape and murder. He was sentenced to years imprisonment rape fifteen for the and exhausting to death for the murder. After remedies, petitioned his state Collins cor- district court to issue a writ habeas setting his convictions and pus aside death grounds. sentence on several constitutional petition, The district court denied his and we affirm.
I. leading events to this be up appeal gan evening August on the old, Collins, eighteen male and years a black friends, Durham, two William Collins’ boyfriend, Styles, and J.C. Dur mother’s cousin, neighbor were attending ham’s Robins, Georgia. in Warner hood barbecue li- ment at drinking morning reported men were beer and 10:00 that and three police we have midnight, about ran out of events described. The quor. they At immediately set car in search of turned the case over to the liquor and out Collins’ County By their saw Les- Houston Sheriff’s Office. way, they more. On Delores afternoon, ter, had point sexually deputies who some been Sheriff’s had Collins men, with and in custody given intimate each the three Durham and had them rights. their emerge They from a car. Miranda Both remained silent. stopped p.m. At day asked sexual about 5:30 Collins was her relations They again rights, them. declined invitation. advised his but he refused She their home, then her a to talk. After a give offered ride visit from his mother a later,. got cooper- she into the car. The four drove short time Collins decided to ate. The eventually stopped deputy, around for while and Sheriff’s chief Willie Tai- tón, gas. investigators, a convenience store for beer and and one his Lieutenant Enckler, From to a they pecan Harry there drove orchard advised Collins his Miran- on the outskirts of As da they rights, Warner Robins. and Collins made a statement orchard, Lester, (First Statement). arrived at the Delores ap- The officers it recorded worst, parently fearing protested tape; they took no notes. admit- Collins claps” she “had “two preg- raping killing and was months ted Delores Lester. The nant.” The men removed the back seat of next day arraigned Collins before- a placed ground. magistrate. car and De- At that time he asked for an disrobed, lores Lester and the three men attorney. An attorney appointed at date, raped Septem- her. Collins was first. As Collins some later as late perhaps act, performed Styles Meanwhile, told Durham ber 1. the sheriff’s office dis- he was going tape kill Lester. He boasted covered recorder had failed to Statement, that he had killed other people, including record Collins’ First Au- so on gust woman he had “done like After Deputy this.”1 Chief Taitón and Lieuten- finished, Collins Delores Lester started ant Enckler decided to reinterrogate Col- pulled a screaming “why They tape me?” Durham lins. informed knife and told her if she not keep did recorder had failed to record First *6 quiet “rip he would her damn heart out.” and asked if they tape Statement him could Durham Styles raped again. and then her. When it consented. The Collins officers finished, they by had Durham took her one then read and an- rights him recorded hand led her up (Second Statement). and a road further into the other statement This He incriminating orchard. had his knife in the other statement was less than the jack hand. took car Collins the out the first one. Collins admitted inter- having trunk of car Styles and followed them. course with Delores Lester but did not de- A by rape, remained car. few moments scribe it as and role later he stated that his being he about heard three “licks” struck. in the murder was minimal. He said that silence, period After a had brief Durham and he told Delores that he would not harm returned, her, jack. Collins but Durham carrying Durham had then struck and shoes, blood did They perhaps carrying had on their her. While Collins admit killed their The men weapon, jack, giv- clothes well. three re- the murder the car and seat, Durham, placed ing the car Les- it to that he so gathered Delores he said did clothes, ter’s and left. On their back Durham’s direction. drive town, jack along Collins discarded car Collins Durham and were indicted disposed the side of the road and of Lester’s County grand jury Houston and rape clothes a dumpster. They arrived in They malice murder. were tried separately, split Warner a.m. up. Robins at 2:30 and first, occurring Collins’ trial on November indicted; Styles to the Styles go police. decided to He was not went police depart- immunity prosecu- to the Warner Robins and became a granted 1. The record does not reflect whether Collins heard Durham’s statements. many,” how peoples that he can’t remember began, Before the trial tion witness. Johnny, hell out of that “he knocked on Col- and hearing
court held a Jaekson-Denno Finally, store.” liquor at the Johnny down statements. suppress lins’ his two motion warned that Durham had Styles testified given Collins had judge The found that police Durham him that if he went being ad- after voluntarily, both statements and еverything him me “put into rights. his Miranda waiving vised of and done.” Roger [Collins] trial, In of Collins’ guilt phase evidence, the State presenting this After of the case was Collins theory State’s no defense. presented rested. Collins prosecutor had Delores Lester. The killed that Collins prosecutor argued closing, of several law en testimony presented murder; the defense had committed investigated had forcement officers who Collins, Durham, had countered and case, Deputy Talton including Chief found Col Delores Lester. The killed Enckler, lab ex several crime Lieutenant and malice murder. guilty rape lins of both clerk at the conve perts, pathologist, on the sentencing phase of the trial The and the others nience store where Collins pro The charge followed. malice murder crime, and night on the stopped had presented The no ceeding was brief. State State, having found the car The Styles. evidence, defense Collins was the discarded, had introduced jack that Collins present at the being He admitted witness. and the pathologist it into evidence. The crime, killing De of the but denied scene it was experts crime lab established Lester, Durham had stating again that lores right weapon the murder and bore Collins’ else deed. Collins said little performed the intro Talton and Enckler thumbprint. finding that Les mitigation. given Collins had duced the two statements by aggravating was attended ter’s murder as to memory testified from They them. circumstances,2 the death recommended Statement, ex the contents of the First 17, 1977, November the trial On penalty. they had tape recorder plaining recommendation, jury’s judge, bound used to record it had malfunctioned (He sentenced to death. sentenced Collins therefore of the statement was tape imprisonment on the years to fifteen Collins established the contents They unavailable. Court, Georgia Supreme rape charge.) by presenting of the Second Statement affirmed Collins’ convic appeal, on direct recording thereof. transcript tape his death sentence. Collins tions and later, testifying corroborated Styles, State, 243 Ga. S.E.2d Durham, Collins, First Statement: Court, on cer The United States Lester; Durham and Styles raped Delores tiorari, the death sentence to the remanded pecan her into the orchard and Collins took for further consid Georgia Supreme Court had taken jack killed her with the Godfrey Georgia, light eration in the com Styles repeated from the car. also *7 others he ments Durham had made —about 961,100 446 (1980). Georgia, v. U.S. Collins inter having had killed —while Collins (1980). The 2936, 64 820 L.Ed.2d S.Ct. victim, course with the and some remаrks reaffirmed Georgia Supreme Court in the car as the three Collins had made State, 246 sentence. Collins v. Ga. death According to men drove back to town. 261, (1980). 271 352 The United S.E.2d said, intermittently, Styles, Collins further re had Court declined Supreme States 12, view, January man didn’t on laughing joking, “hey you denying and certiorari 1103, 449 101 Georgia, hit ’side the U.S. going up think I was her 1981. Collins 900, (1981). too”, many “he had killed so S.Ct. head statutory aggravating circumstances 2. The two (7) outra- murder ... was found were The offense of vile, wantonly geously or inhu- horrible or (2) commit- The offense of murder ... was torture, depravity of it involved man in that engaged in the ted while the offender was mind, battery aggravated to the victim. capital felony, ag- or an commission of another 27-2534.1(b) (1978). See Ga.Code gravated battery..... Ann. §
1329
16, 1981,
March
filed a petition
charged
On
Collins
crimes violated Collins’
rights
against
of confrontation and
corpus
for a writ of
in the
cruel
Superior
habeas
punishment guaranteed
and unusual
him by
County, Georgia.
Court of Butts
That
sixth,
eighth,
fourteenth
and
amend-
20,
on
petition
August
court denied the
jury’s
ments and
findings
rendered
1981,
Supreme
and
Georgia
Court refus
guilt unreliable.
ed to
grant
probable
a certificate
cause
to appeal.
The United States
The four
challenging
claims
Collins’ death
Court denied
for
petition
(1)
Collins’
a writ of
sentence
a juror
are:
was excused
who
26,1982,
24,
Witherspoon
certiorari on
did not meet the
v. Illi
April
and on June
nois,
510,
1770,
391
20
1982,
U.S.
S.Ct.
L.Ed.2d
denied his
for
petition
rehearing.
(1968),
standard
on
excusal
950, 102
Zant,
Collins v.
ground
scruples against
penal
the death
L.Ed.2d 475
(2)
ty;
the prosecutor’s closing argu
Collins then
these
instituted
habeas cor-
ment was
and prejudicial, vi
inflammatory
pus proceedings
court,
in the district
olating
process
the due
standards set forth
claims,
presenting ten federal constitutional
Zant,
(11th Cir.),
Hance v.
1330
guilt phase
presumption
of his trial shifted the burden of
A
is a conclusion which
proof to him on essential elements of the
given
the law draws from
facts. Each of
charged,
crimes
violation
Sandstrom
following presumptions
that I am go-
Montana,
510,
2450,
99
61
U.S.
S.Ct.
rebuttable;
give
is,
is
ing
you
that
(1979).5 The court allegedly
L.Ed.2d 39
subject
being
each is
overcome
evi-
by
committed this error in its definition of
dence to the contrary. Every person is
implied
instructing
jury,
malice and
presumed to be of sound mind and discre-
rape,
on both malice murder and
it
tion. The acts of a person of sound mind
presume
should
the defendant’s intent once
presumed
and discretion are
to be the
it found certain facts.
first consider
We
product
person’s
person
will. A
murder;
defining
the instruction
malice
we
sound mind and
presumed
discretion is
then consider the instruction on intent.
probable
intend the natural and
conse-
1.
quences of his acts.
court
the jury
trial
instructed
(emphasis added).
“[mjаlice
implied
shall be
where no
considerable provocation appears and where
Petitioner argues
por
the italicized
all the circumstances of the killing show an
tion of this instruction
be
cannot
distin
malignant
abandoned and
heart.” This in
guished from the instruction condemned in
struction, as we indicated in Lamb v. Jerni
Sandstrom. See
U.S. at
99 S.Ct. at
gan,
(11th Cir.1982),
impermissible burden shift could have re An
sulted from the instruction. instruction is harmless when it “shifts the burden on an element is not ” Lamb, at issue in the trial .. .. 683 F.2d at 1342. The evidence Instructing intent, at trial established jury on the trial judge stated: that Collins and Durham carried the victim challenged jury was, acts, conduct, charge upon 5. The in relevant consideration of the de- part, meanor, as follows. motive and all other circumstances crime, connected with the act for which the accused A members of the is a violation is tried. of a statute of this state in which there shall necessary ingredient intent is a joint operation Criminal be a union of of act and inten- proof crime and of that intent must exist tion. before a conviction is authorized. presumption Whether it A is a conclusion which the ordinarily has been shown is given for the law draws from facts. Each of the may following decide. It be presumptions demonstrated the acts going I am defendant, may give you rebuttable; is, and conduct of the be in- subject is each is proven ferred from the being circumstances or it overcome evidence to the con- may presumed appears be trary. Every person where it presumed to be of necessary probable consequence of the sound mind and discretion. The acts of a persr:> defendant’s acts. pre- of sound mind and discretion are product person’s sumed to be the will. person A mind implied sound and discretion is Malice shall be where no consider- presumed probable to intend the natural and provocation appears able and where all the consequences of his acts. A рerson killing will not circumstances of the shown an aban- presumed malignant be to act with criminal intention doned and heart. may (emphasis added.) but the trier of facts find such intention *9 itself, orchard; though into Collins also carried a even it pecan portrayed Durham According to jack killer, car into the orchard. the rather Collins the certainly than as the experts, crime lab someone struck vic- right scene, showed Collins to be the jack. tim on times the jack, the head several with in the engaging rape, carrying the and The prosecutor at trial asserted that Collins participating in coverup the afterwards. struck the fatal blow. Collins denied this incriminating While it not was as the assertion; his was defense that Durham Statement, First Statement, the Second argue killed the victim. Collins did not that having tape, been recorded on was more the jack; victim was not struck with the he tape reliable. The recorder failed record argue also did the acted not that killer Statement, the First the and officers who unintentionally. Thus, question the only took it and introduced into it evidence made jury before the in connection with the mur- no interrogation. notes of their Conse- der charge was whether Collins or Durham quently, they had testify from sheer delivered the fatal blow—intent not at was memory, and they were cross-examined ex- reason, issue in case. any the For this error therefore, is tensively. disingenuous, It judge’s in the instructions could not have just the assert State to because Collins’ harmed in any way. Collins Statement Durham Second incriminated more than Collins it materially aided his also The instruction could not have case. The certainly State did not consider rape harmed Collins as applied the the statement exculpatory, and beneficial to prove the charge. rape prosecutor To was defense, the when it offered it in evidence.6 required (1) to establish three elements: (2) of penetration (3) the victim with force Though we cannot conclude without (Collins her consent. admitted the harmless, Second Statement was neither element of Intent penetration.) was can we agree superior state element of rape Georgia crime in court’s, court’s, district conclusion when Collins was See tried. Ga.Code Ann. of law that admission of that statement reason, (1978). 26-2001 For this § violated Collins’ fifth and fourteenth clear beyond reasonable doubt rights amendment under the authority of intent instruction also could not have af were, Edwards. The in facts Edwards fected the jury’s rape charge. verdict arrested, briefly, as follows. Edwards was police station, interrоga taken to the B. requested counsel, When he inter ted. Petitioner contends that the admission rogation stopped, and he was confined to into evidence of his Second Statement was county jail. The next coun day, before constitutionally impermissible light appointed, sel was two came to detectives Arizona, Edwards v. 451 U.S. jail and asked see Edwards. 1880, 68 L.Ed.2d Both the Geor- told Edwards he talk jailer had to superior court, gia corpus in its habeas re- detectives. The detectives Ed advised view, and the district court below concluded rights, of his wards Miranda he told that his Second Statement had been taken willing them to make a statement violation Edwards but its admis- presence counsel, without which he sion in beyond evidence was harmless did. The held Ed Court reasonable doubt. wards’ conduct did not waiver amount to a to the right presence of his counsel. agree We cannot admission holding couched its terms: harmless; explicit provided Second Statement jury with some hold tragedy details now that when an accused has [W]e aspects right present and corroborated case invoked his State’s have counsel against during interrogation, Collins. The Second Statement custodial a valid fact, argued tempt by the State that the to extricate himself from his inculpated Second previous guilt. Statement further Collins in confession of the murder because it constituted a feeble at-
1332 any individual indicates in man- established “If the right of that cannot be
waiver
ner,
during ques-
to
or
showing
responded
any
prior
that he
at
time
only
silent,
interro-
police-initiated
further
custodial
to remain
tioning,
he wishes
of his
gation even if he has been advised
cease. At
interrogation must
accused,
further
that an
rights. We
hold
he intends to
he has shown that
point
Edwards, having expressed
as
his
such
privilege;
his Fifth Amendment
exercise
police only
desire to deal with the
person
taken after the
in-
statement
any
through
subject
counsel is not
to further
be
than
privilege
his
cannot
other
vokes
until
interrogation
by the authorities
or oth-
compulsion,
subtle
product
him,
made
counsel has been
available
states that
....
If the individual
erwise
himself initiates fur-
unless the accused
interrogation
attorney,
he wants an
communication, exchanges, or con-
ther
is
attorney
present.
must cease until an
the police.
versations with
time,
an
the individual must have
At that
484-85,
at
Edwards, 451
at
101 S.Ct.
U.S.
attorney
to confer with the
opportunity
added) (footnote omitted).
(emphasis
1884-5
present during any
to have him
sub-
in Edwards held that
the use
questioning.
If the individual
sequent
him at trial
against
of Edwards’ confession
and he indi-
attorney
cannot obtain an
Fifth
rights
“violated his
under the
speaking
he wants one before
cates that
Fourteenth Amendments
construed in
his
police, they
respect
must
decision
436,
Miranda v. Arizona
U.S.
[389
silent.”
remain
1602,
(1966)].”,
state standing by who was approached Styles, inquiry.9 ness at Styles, the knife Durham Pointing car. indica- we have no summary, because and, intended to kill Lester that he stated Collins, of his tion that at the time Second point, bragged make apparently to Statement, to talk told that he had including other people, he had killed several officers; First because his earlier with the way.” he had woman that “done given; and because freely Statement Lester, Durham, raped had After Collins interrogation never halted knife, Styles to brandishing the forced still to talk unwillingness otherwise indicated *12 Afterwards, planted follow suit. Durham occasion,10we find police the on either with head and ground by knife in the Lester’s his was admissi- that Collins’ Statement Second face, raped her the as he too her. in slapped ble. Styles engage to Les- Durham then ordered simulating Styles in- again. ter While was C. tercourse, to Durham say he heard Collins that com- Petitioner contends Durham’s have to that “You don’t to words the effect having Styles petitioner ments to while was her, you?” kill do Lester, referring intercourse with Delores committed, Durham had concluded, to other murders Styles up. After Lester stood and inad- hearsay both inadmissible were and grabbed Durham her the hand be- criminal ac- missible evidence of extrinsic orchard, the leading her further into gan and the tivity, petitioner remarks kill going “Y’all to me.” and she exclaimed driving made while three men were them, the out behind but Collins started following murder back to town Lester’s trunk jack to the from the of stopped get evidеnce extrinsic were inadmissible of he the car. Then followed Durham. Petitioner maintains that activity. criminal meanwhile, men begged the two to Styles, group of first the admission in evidence the her life. spare process the due and of statements violated objection attorney timely made to Collins’ Constitution, of confrontation clauses the evidence, through introduction in the group the of second and that admission the statements Styles’ testimony, Durham’s exam- process the due clause. We violated to kill and that he that he intended Lester ine these two claims in turn. argued had killed before. Counsel 1. hearsay and these statements constituted their violate his admissibility To determine of the first admission would the statements, of confron- right consider the client’s sixth amendment group must objec- The the they judge tation. trial overruled complete factual context in which tion, that the were began concluding relevant statements were uttered. The scenario Georgia the Su- gestae. the men and Delores Lester res part when three observed, There, in addi- agreed at the Court pecan preme arrived orchard. tion, implicate not men removed back seat of the car and that the statements did implied comment ground. laid it on the While Collins was Collins. The Court’s error, admission, if harmless in having with Lester on the car their was intercourse — Bradshaw, accused, —, Oregon only question was whether before In 9. confession, (1983), making 77 L.Ed.2d his had initiated further reemphasized that the Edwards plurality police. conversation with mechanical, “whether inquiry is not but rather knowing purported intelli waiver was fact, to had reason to want talk Collins totality gent and found to be so under the gave police; again Statement the Second (em Id. the circumstances." at 2834 opportunity to alleviate some of the him an only helpful phasis original.) in This case for his his to case in First harm had done approach to voluntariness of a confession its of his role Statement characterization result; generally, its it dealt with a and not crimes. terminated, request interrogation be clear amendment, implicating fifth and the thus event, any because Durham’s statements the jury when she introduced Second prejudice into did Collins. Statement The lawyers, evidence. closing arguments their the jury to at the Durham’s oth- Styles statements about guilt case, conclusion phase he had indeed appear ers killed do developed this fully issue of Durham’s in- prejudiced rather than benefitted Collins. tent. however, state- argues, Collins those ments, prosecutor’s the case warning theory with together Durham’s prime culprit Styles, as the men drove town three back to murder. Armed car murder, jack, with the which following the that if went to Styles fingerprint expert bore his said thumb- police “put Durham would him into print, Collins followed Durham and Delores done,” me everything Roger showed pecan Lester into the orchard and beat her him to be “tarred with the same brush” as jack. to death Collins had freely Durham. confessed the murder First State- statements, Durham’s re particularly the sheriffs, the deputy ment following his ferences to other murders he had allegedly mother’s visit jail day of his committed, conceivably were admissible *13 arrest. When he later learned that the tape truth, gestae their but not under the res had recorder failed to record his First exception to the hearsay excep rule. That Statement, Collins seized the opportunity to tion, though provided by Georgia statute change story. his (see 38-305), Ga.Code Ann. generally has § by The defense arguing countered that developed fallen out of favor courts as have presented Collins’ Second Statement precise more terms with which define to truth, Durham was the murderer. To hearsay The exceptions. gen four current argument, buttress his attorney Collins’ erally prevalent exceptions that to fall used pointed to Durham’s Styles comment gestae” under label “res are declara (Durham) that he intended kill condition, Lester. present bodily tions of declara statements which Collins now ob- present emotion, tions of mental state or defense; jects vital to they were his gave it utterances, excited im present sense credence. See pressions. McCormick on Evidence (2d 1972), 4 686-711 ed. Evidence Weinstein’s plain It is of issue Durham’s ¶ 1803(1)[01]-(3)[06] (1981). not We do intent was taken into by par- account both need to decide whether the of admission they ties as structured cases. their Both solely gestae statements res value vio Styles’ testimony and thumbprint Collins’ process lates the due or confrontation claus jack on the presence established Collins’ es because other Constitution we find the orchard and at the specifically scene of authority in the law evidence to admit Collins’ killing; available defense
the statements. Durham, he, was that rather than had done the killing. statements, Durham’s his especially
statement that he intended to kill Delores Durham’s statements were admissible as Lester, were relevant to intent, Durham’s intent or nonhearsay to show his for their addition, state mind. Durham’s a key intent was In argued truth.11 it could be issue in this case. Collins raised the issue in Durham’s statement that he intended to kill by his Second recanting Statement his earli Lester fеll under the “declarations of confession, er that he had Delores killed present exception mental state” to the Lester, and Durham labeling as the murder hearsay rule. His comment he had prosecutor placed before, er. The the issue before including killed the other woman cross-examination, 11. Durham’s they portrayed statements of his were intent since Dur- probably prosecutor prime murder, and, introduced as a ham as the motivator of strategy. then, brought closing argument matter of Had she not them Styles, prosecutor out in deliberately her direct examination of Collins’ have accused attorney certainly concealing would have elicited them evidence to the favorable defendant. to the Styles testifying only fact that way,” supported had “done this that he statements, he and he could be evi- heard and thus constituted indirect statement state.12 as to whether he had heard present a mental cross-examined dence of Therefore, the admission Dur- them. argues though even au could not violated ham’s statements evi be in the rules of thority can found clause. confrontation of Durham’s justify dence to the admission evidence, objection into their introduction final Durham’s statements Petitioner’s violated his sixth amendment is that their admission into evi- nevertheless statements While process. to confront Durham. the Su his due right right violated dence preme has not indicated that convincing. is not evidence This claim exactly right to confrontation is coextensive Durham’s intent clearly probative with, rules, hearsay see California The state- on that issue.13 admissible Green, 399 U.S. if unduly prejudicial only their ments were 1933-34, (1970), rare it is true, taken if were contents hearsay or that evidence either not admissi they in the homicides implicated Collins exception been hearsay ble under has committed, or if Durham claimed had violating right excluded as the defendant's they person of bad showed Collins to be a confronting value of of confrontation. The probative We balance the val- character.14 lies in testing witness trustworthiness prejudicial ue effect these against is testimony. Evidence admitted un statements, then whether decide their exceptions” “res gestae der the four process viola- admission constituted due rule, is even when the declarant hearsay tion. testify, very available to for the reason evaluating whether admis Therefore, if inherently trustworthy. *14 process a due sion of evidence constituted the statements were admissible as an indi violation, we review the record to state, “only rect declaration of mental present whether was [any determine error right Collins’ to Durham was not confront find] magnitude deny of such as to fundamental If we consider Durham’s out-of- violated. the trial.” i.e., fairness to criminal Hills v. hearsay, statements not as admit court Henderson, (5th Cir.), truth, as 529 F.2d 401 cert. ted for their but rather admitted intent, 50 to show Durham’s Collins had no denied 429 U.S. L.Ed.2d 124 (1976). need to confront Durham to test trust To show a denial of fundamen their fairness, any were offered tal error must be “material in worthiness. statements crucial, critical, highly to show Durham them. the only signifi- that said sense of 803(3)[02] 12. describes the confusion courts Evidence Weinstein Weinstein’s ¶ analysis apparently regarding discussing apply felt indirect evi- We this in Collins’ (hearsay, present process dence of a mental state but due claim. See infra at 1337. exception) the evi- within mental state and jury limiting 13. evi- While instruction dence admitted not for its truth but to show to the issue of intent could have been Noting dence (nonhearsay). intent that even non- given, requested. none was hearsay poses dangers, use of such evidence Weinstein comments implicated 14. Collins contends The statement analyses focusing than on Rather academic other described to him in the murders Durham classification, rigid intent on it would be Styles Styles Durham’s to admonition analyze probative profitable val- more to police, “put if went to the Durham would he ue of the statement and to examine the dan- everything Roger done.” This in me and stemming [him] gers light from its admission in way was uttered in the car admonition meaningful factors. A exercise of the other however, rape/murder, in from the and back judge’s pursuant to [Fed.R.Evid.] discretion could have referred to the that context 403 is more to the truth conducive aims of unlikely it Lester crime. We believe expressed Delores justice and in [Fed.R.Evid.] statements; they jury linked these technically than a brilliant demonstration contexts, nothing in exception were made different question is an that the statement in Moreover, prosecutor, in hearsay them. lying connected than outside to the rule rather arguing contend scope. did not otherwise. its (citations omitted). clear,” cant factor.” Id. We “unmistakably Witherspoon as re- find in quires, no denial fundamental fairness that: admission these statements for two (1) would automatically vote [she] First,
reasons. before the jury evidence against imposition of capital punish- did not indicate that Collins had been in- regard ment without to any evidence that in way volved any previous Durham’s might developed be at the trial of the prosecutor, argu- transgressions, (2) case before them or attitude [her] ment, made to attempt no convince the penalty toward death prevent would Second, that he had been. Collins drew making from impartial decision [her] theory statements support as guilt. to the defendant’s defense, Durham, alone, De- murdered at 522-3 n. S.Ct. at 1777 n. Thus, effect, lores Lester. prejudicial if (emphasis original). minimal, any, of the statements was case, In this after extensive discussion certainly enough not outweigh their pinning aimed at her feelings down about probative value to an call extent that would penalty, the death gave Mrs. Gurr a bot- into question fundamental fairness of response that regardless tom-line cir- the trial. cumstances she could vote impose penalty. Her responses death final were follows: The admission in evidence of the think, Gurr, I Court: Mrs. as I un- challenged group second of statements did you derstand what saying, are and I don’t not violate due process clause. Those put mouth, want your words into but Styles statements were made Collins seems like to me you saying are that you home, the car ride to the effect do your best to consider whatever Collins had killed people more than he could to, you supposed you were but really count, and person had beaten a at a don’t think that you impose could liquor store. The statements had probative death penalty? Collins, value. were They admissions No, sir, I Mrs. Gurr: I’m afraid couldn’t. admissible for all purposes. had the opportunity explain away statements The Court: Is that right? and to Styles cross-examine about their ut Yes, Mrs. Gurr: sir. say terance. We cannot the prejudi *15 regardless The Court: And that would be cial effect of these statements so out circumstances, you’re saying? weighed probative their they value that I just Mrs. Gurr: I’m afraid do could not “crucial, critical, were a highly significant that. calling
factor” into question “the funda This response was clearer than those peti mental of petitioner’s fairness” trial. Hills as points tioner to insufficient to meet the Henderson, v. supra. Witherspoon Zant, criteria in Hance v. 696 (11th Cir.), F.2d 940 cert. denied
III. —U.S. —, 3544, (1983) 103 S.Ct. 77 1393 L.Ed.2d A. (one juror felt that there were “times when challenge warranted,” Petitioner’s first to the the death is penalty juror other sentencing phase of his trial concerns the “confused”), stated that she was Granviel Estelle, exclusion of prospective juror, 673, (5th Cir.1981), a Janette 655 F.2d 677 Gurr, Illinois, 1003, 102 under Witherspoon 1636, 391 cert. denied 455 U.S. 71 510, 1770, 88 (1982)15 U.S. 20 776 870 (juror L.Ed.2d L.Ed.2d “didn’t think (1968). He contends that the exclusion was impose could” the death or penalty), [he] improper Estelle, because Mrs. Gurr did not make (5th Cir.), Moore v. 670 56 F.2d cert. Prichard, 1206, City 15. prior In Bonner v. of 661 F.2d the former Fifth Circuit handed down to (11th Cir.1981) (en banc), 1, 1209 this court October adopted binding precedent of all decisions 1338 B. 73 102 S.Ct.
denied
U.S.
“know
(1982)
didn’t
(juror
L.Ed.2d
prosecutorial
that
Petitioner contends
[impos
good
ever feel
about
that
would
[he]
of
closing arguments
during the
misconduct
ing
penalty]”).
the death
sentencing phase of the trial
at the
counsel
the words
Petitioner
contends
it denied his due
prejudicial
was so
equivalent
not”
to
just
I
could
were
“afraid
sentencing proceed-
to
fair
right
process
context,
In
how-
“thinking” one could not.
be
that his death sentence
ing
requires
ever,
usage
style
“I’m
general
of
his
appeal from convic-
vacated. On direct
is in a state
indicates not that one
afraid”
sentence,
petitioner
tions
claimed
fear,
is
to
of
but rather that one
reluctant
im-
prosecutor,
arguing
displeasing. A
may
admit a fact that
be
not
commented on several matters
properly
I can’t”
statement that someone is “afraid
every
she
day
in evidence:
stated
may
perform an
does not mean that he
act
report
peti-
crimes like those
newspapers
it;
perform
ex-
nobody
may
case;
in this
that there
tioner committed
pect
perform
it.
him
support the argument
were no statistics to
Gurr’s statement
is the kind of
Juror
crime;
penalty
that the death
does not deter
give
judge
the trial
dis-
statement that
like an animal as
petitioner
and that
acted
weighing.
cretion in
Unlike
statements
Lester.
raped
he
and murdered Delores
cites, this
petitioner
in the cases
statement
Georgia Supreme
Court found no error
capable
being
as a matter
law
state habeas
in these comments.
his
justify
uttered
sufficient force
corpus
alleged
pros-
petition, petitioner
judge
The trial
had
Witherspoonexclusion.
ecutorial misconduct occurred
both
whether the state-
opportunity to notice
trial,
sentencing phases
his
guilt
so
and concluded
ment was
fact
uttered
con-
challenging
prosecutor’s
more of
it was.
of fact as
findings
His
appeal.
We
duct than
did
direct
juror’s
Wither-
impartiality,
light of the
petitioner
portion
review the
claim
criteria,
spoon
are
correct.
presumptively
but we do not re-
appeal,
raised on direct
2254(d) (1976);
Sumner v.
U.S.C. §
he raised
in his state
portion
view the
Mata,
539, 547,
habeas
because he abandoned
petition
L.Ed.2d
litigation of his
portion during the
habeas
ve-
further contends that the
Petitioner
County Superior
in the Butts
petition
ques-
necessary
niremen did not receive the
prevail on
due
In order to
Court.16
positions
their
vis-a-vis the
tioning
allow
appeal, peti-
raised on direct
process claim
This is nоt
Witherspoon
appear.
criteria
ac-
prosecutor’s
show that “the
tioner must
voir
supported by
transcript
so
as to render the
egregious
tions were
case,
repeated-
In Mrs.
she was
dire.
Gurr’s
Hance v.
fundamentally
trial
unfair.”
ly
questions designed
elicit her
asked
Zant,
(11th Cir.1983).
696 F.2d
aspects Witherspoon,
feelings on both
al-
portion
prosecutor’s
The first
her
to determine
namely,
ability
whether
*16
ap-
leged
challenged
misconduct
on direct
scruples
guilt
would be affected
her
arguments
“Now
peal was
statement:
against the
and whether she
penalty,
death
against capital punish-
put
have been
forth
for
automatically refuse to vote
the
But
ment in that it does not deter crime.
the evi-
penalty, regardless
death
of what
be
sta-
argument
supported by
cannot
might
dence
reveal.
presented
argument
hearing.
question
in his
no
to the state
He did
the decision
prosecutorial
petition
probable
his
for
certificate of
cause
habeas court on
misconduct
Court,
appeal,
Georgia Supreme
judge
in de-
in
but the
claim. The state habeas
wrote
point.
petitioner
nying
petition, rejected
ex-
dispositive
the
the
Our
order that
had abandoned
support
him,
prose-
including
of the
the
argued
amination
record reveals
for
the
claims
judge’s decision that
this claim
did not
state habeas
cutorial misconduct
claim. Collins
presented
question
judge’s
it was
aban-
was abandoned insofar as
the
that he had
decision
by filing
petition
re-
for a
the state habeas level.
doned the claim
at
There,
Petitioner
anything
else.”17
a sentence.
mulating
jury
tistics
the
had
Williams,
out,
that neither
side
recommended that
on trial
points
correctly,
in a
offense,
state
a capital
New York
court for
presented any statistical evidence to the
a life
given
be
sentence. The judge, relying
concerning
cap-
the deterrent effect of
jury
part
in
evidence not
at
Therefore,
adduced
trial
punishment
ital
on crime.
probation
him,
that his
had given
officer
argues,
reference
such
prosecutor’s
Williams to
sentenced
death. Williams ap-
improper.
“evidence” was
claiming that
pealed,
his sentence was in-
claim,
presenting this
By
petitioner poses
sentencing
valid because the
judge had de-
first,
questions:
three
whether the
jury
process
nied him due
by relying on informa-
crime,
entitled
consider the need to deter
supplied by
tion
whom
witnesses
he had not
murder,
sen-
particularly
deciding
in
what
opportunity
had the
to confront or cross-ex-
case;
tence to
recommend
Supreme
amine. The
found the
second, whether, in the absence of empirical
judge’s conduct inoffensive to the Constitu-
capital punish-
evidence in the record that
tion, stating that
process
due
clause
“[t]he
crime,
precluded
ment deters
should not be treated as a device for freez-
considering
from
deterrence
recommend-
ing
procedure
the evidential
of sentencing
sentence;18 and,
third,
ing
death
251,
in the
procedure.”
mold
trial
Id. at
there
prosecutor’s
whether
remark that
at
69 S.Ct.
1085. The Court cited with
no
support
argument
were
statistics to
apparent approval Judge Ulman’s formula-
penalty
death
has no deterrence
tion of
four
a judge
factors
should
effect
somehow rendered the sentencing
imposing
consider
sentence:
proceeding fundamentally unfair.
The
protection
society against
“1st.
wrongdoers.
question
The answer to
first
The punishment
clear.
U.S. Constitution does not for
“2nd.
much bet-
—or
discipline
bid a sentencer
to hear
ter —the
argument
wrong-doer.
from
counsel on the
for a
sen
need
deterrent
“3rd.
reformation
rehabilita-
tence and to fashion a sentence
satisfy
wrong-doer.
tion
implicit
that need.19 This is
in United
“4th. The
deterrence
others from
41,
v. Grayson,
States
438 U.S.
the commission of like offenses.
2610,
(1978),
and Williams v.
“It should be
that a proper
obvious
York,
1079,
New
337 U.S.
dealing
these
involves a
factors
stu-
L.Ed. 1337
dy
upon
of each case
an individual basis.”
Williams,
the Court con-
Glueck,
Id. at
citing
type
sidered the
of evidence a sentencer
Probation and
(1933)
Criminal Justice 113
may appropriately take into
for-
(emphasis added).
account in
objected
promptly
designed,
17. The defense
part,
this state-
in whole or in
to deter crime
ground
ment
not
ment to
that it referred to matters
general
and that
immediate
need
such
permitted
argu-
evidence. The court
requires
deterrence
that that sentence be im-
continue, ruling
prosecutor
that the
See,
posed.
State,
e.g.,
Redd
Ga.
argue
appropriateness
was entitled to
(1979);
State,
tionally
the
inadequate
were
inform
instructions
1759,
64
446
100 S.Ct.
Georgia,
U.S.
option
impris
of its
to recommend life
jury
not
disagree
We do
398
L.Ed.2d
contention, peti
In
of
support
onment.
this
that, under
Tjoflat’s
Judge
conclusion
Balkcom,
v.
F.2d
cites
684
Goodwin
tioner
circum-
(b)(7) aggravating
the
Godfrey,
—
(11th Cir.1982), cert. denied
U.S.
794
in
unconstitutionally applied
was not
stance
(1983);
—,
103
Therefore, if one or more you find that Nevertheless, Georgia system). Georgia circum- statutory aggravating review, a reasonable beyond has chosen to conduct such a stances existed see recommend the death you doubt could 27-2537(c)(3); therefore, Ann. Ga.Code § life im- could recommend penalty you Georgia can ap review be attacked as in- with my in accordance prisonment plied given in a case. Douglas See v. Cali structions. ... fornia, 353, 814, 372 83 9 U.S. L.Ed.2d protection/due (1963) (equal process
811
right
appeal); Alvord,
to counsel on first
al-
Now if
find one or both of the
you
D. state courts the method of conducting argues Petitioner the propor proportionality so long review as the state by the tionality Georgia review conducted supreme court’s review and not result do Supreme in his Court case was constitution rise to level of unconstitutional action. ally inadequate Georgia because the court 1517-18; 716 Maggio F.2d see also v. compare failed case with other cases Williams, — U.S. —, 78 with similar facts and circumstances. The 43 (1983). L.Ed.2d The review given recently held that the Con case require clearly stitution does not a state was not unconstitutional. supreme proportionality court conduct review long procedures as the are “so state’s not IV.
lacking in other checks on arbitrariness that Petitioner claims that he was denied his it would pass not constitutional [otherwise] ” — fourteenth, sixth, and Pulley Harris, right amendment muster .... U.S. —, 871, 873, 79 effective assistance of L.Ed.2d 29 counsel at both system Like the California at issue guilt sentencing phases of his trial. Pulley system and the Florida at issue The district court summarily denied this Wainwright, Alvord F.2d claim. Petitioner asks us either sustain (11th Cir.1984), clear that appears this claim as a matter law or to remand hearing. We conclude evidentiary an grant evidentiary for an the district court it to re- was not hearing evidentiary an hearing.23 quired.25 that he was entitled contends A. Petitioner the district hearing in evidentiary state habeas court an evi- conducted hearing in state his habeas because court dentiary hearing on ineffective fair and did full and was not court claim, findings counsel made assistance of present- issues factual the material resolve fact, per- and concluded that counsel’s pro- habeas that the state asserts He ed. formance constitutional muster. passed respects. in three inadequate were ceedings Sain, Townsend v. *21 evidentiary First, his scheduled the court 745, 757, (1963), the coun- to his at time inconvenient hearing a Supreme Court described the circumstances Consequently, witnesses. his sel and a under which federal district court must support rely depositions on forced to was an on a habeas grant evidentiary hearing Second, the court claim. his constitutional claim.24 facts critical to determine required was grant We that must hold a federal court affi- and conflicting deposition resorting evidentiary hearing an to a habeas appli- Third, state even if the testimony. davit following cant under the circumstances: full, the court fair and hearing was court dispute If (1) the merits of the factual facts, thus dispositive the to find failed hearing; were not resolved in the state hold an evi- court to the district requiring is (2) the state factual determination not three these hearing. We review dentiary whole; fairly supported by the record as a in order. contentions (3) fact-finding procedure employed by the adequate state court was not 1. (4) afford a full hearing; and fair there is a allegation substantial discov- newly claim, To the first we decide must evidence; (5) ered the material facts surrounding review the events the schedul adequately developed were not evidentiary ing hearing in state (6) hearing; state-court for any reason initially court. We note ineffec it appears that the state trier of fact did tive assistance of counsel claim has been applicant full not afford habeas a and ripe petitioner’s since the conclusion of trial hearing. fair fact 17, on November 1977. Petitioner nonethe petitioner’s Unless ineffective assistance of trial his less had his counsel handle case 12, date, counsel claim fell within one of these cate- until March 1981. two On gories, district no denied duty court had to months after Court his argued evidentiary 23. Petitioner also that the district court court held district should have an find, summarily rejecting well, petition necessarily hearing, erred in his entire we as 2254(d) corpus. argument applies presumption for a writ of habeas This is to eliminate the § meritless. While a statement of the If district of correctness. the Sain test does not man- reasoning always helpful hearing, presumption court’s to us on date a of correctness where, here, appeal, required necessarily court was stands. Our focus is on the Sain determination, test, legal 2254(d) presumption to make a its failure the § on of cor- explain its conclusion could not have See violat- rectness determination. discussion Zant, 977, (11th rights. ed Collins’ constitutional A district Thomas 697 F.2d 983-86 Cir.1983). findings court’s failure to make fact neces- sary ap- to our consideration the issues analysis purpose assume for peal may require 25. We a remand for such determina- petitioner a claim tion, but, otherwise, stated on this issue. independently arewe ca- Naturally, such a determination would have pable determining issues of law. step been first state court to for the habeas 2254(d) (elimina- addressing petitioner’s 24. Petitioner § cites U.S.C. take in claim. Since evidence, ting presumption ordinarily indicating of correctness that it that court took thus claim, findings proceed accorded state we habeas court when found the determination findings petitioner’s argument hearing these arose out of a that was the district court fair). hearing granted evidentiary not full and This rule If does not aid us. should have be- find, test, apply hearing inadequate. when we the Sain cause the state certiorari, he petition for a writ of on that date and testimony second whose his employed form, substitute counsel to handle presented played only affidavit March corpus state habeas action. On presentation minor role in the of his claims. petitioner Superior filed circumstances, these Under we do not feel pro- a motion to County, Georgia, of Butts the denial of the continuance rendered the pauperis, petition ceed in forma for a writ hearing state less than full and fair. Coun- corpus stay of habeas and a motion to his sel had a full month to prepare, pre- scheduled execution. On March sumably could have presented his critical state court motion to superior granted his April Moreover, witnesses on 14. petitioner proceed in forma pauperis, ordered his has not shown how the use of deposition execution be his habeas cor- stayed pending and affidavit testimony prejudiced his case. action, pus set a hearing habeas April claims for the week of During Petitioner suggests that he was counsel, March apparently prejudiced because he was not present court, appearing open orally requested when his witnesses were deposed. The the court April hearing. to continue the request state court denied his that the wit request. The court denied his March On ness be deposed prison where he was counsel, record,” simply preserve “to incarcerated so that he present could be *22 continuance, filed a written motion for a assist his attorney they while testified. asking that the hearing be continued to None of the witnesses prison. resided at the May 18 because he needed time to investi- The court ruled that they were not required gate petitioner’s claims April and the 14 go prison to testify, to and that the date was petitioner’s not convenient for ex- require” “law did not the State to transport pert witnesses. He also stated that he had petitioner to the places where the witnesses another client whose execution was sched- were located and would be subject depo 13, uled for April April 13. On the court sition. The court also observed peti continuance, again denied the motion for presence tioner’s depositions stating that would convene the evidentia- present practical problems, the prisoner’s 14, ry hearing April on as originally sched- security presumably them. among uled, and if counsel did not wish to present petitioner’s time, case at he had no right Collins constitutional to be present could his case in deposi- the form of present when his deposed. witnesses were tions and affidavits at a later date. Coun- Nothing in the record demonstrates sel chose option.26 the latter deposition proceedings were rendered fundamentally by unfair his absence. His
Petitioner has never stated in what re- counsel knew Collins’ version of the critical spects the evidence he presented to the events before he took the testimony court, state habeas in the form of deposi- witnesses. He had at least week after affidavits, tions and would have been dif- deposing them to discuss their testimony ferent had he granted been the continuance pursue with Collins and to requested. any points Nor has he ever shown that needed further lay development.27 witnesses con- by deposi- who testified We depositions tion could have clude that these present provided been for the April 14 evidentiary hearing. expert adequate His an presenting means of witnesses, who apparently could not attend case to the state habeas court. 17, April petitioner’s requested
26. deposi- On counsel moved the 27. The state habeas court taking depositions 1, 1981, court to order the by May they at the tions were taken on prison where Collins was incarcerated and to course, April attorney, 24. Petitioner’s could pay taking for the costs associated with requested again a continuance if he could depositions. The court denied the motion. Pe- not obtain the new information that date. i.e., argue court’s, titioner does not State’s, pay depositions failure to for the ren- hearing dered the state habeas less than full and fair. 1346 (5th Cir.) (en 289 grounds, other F.2d 928 2. 877, 82 banc), cert. denied 368 U.S. that, Petitioner as a mat contends 121, (1961). 78 7 L.Ed.2d Whether counsel law, a state cannot ter of habeas court adequate is a mixed has rendered assistance hearing a full and if it must conduct fair applica fact and law question requiring conflicting deposition testimony
resort to legal facts principles tion of to the historical findings its of fact. We cannot ac make Sullivan, Cuyler the case. See v. cept proposition. this 335, 1708, 100 S.Ct. all on the try Courts sorts of cases basis ; (1980) Young Zant, v. 677 F.2d power A depositions. subpoena court’s Cir.1982). (11th The state conclu court’s and witnesses unavailable. limited are often mixed question sion on this is not entitled that a rely deposi- To hold court cannot to a of correctness under 28 presumption testimony tion controversy resolve a 2254(d) (1976). § U.S.C.A. Goodwin well defy precedent would be as rea- Balkcom, Cir.1982), (11th F.2d exception son. We refuse to create denied, — U.S. —, cert. 103 S.Ct. reject state habeas cases. Accordingly, However, (1983). the state L.Ed.2d petitioner’s claim that his state habeas findings court’s historical fact on the hearing not full and fair. presumption issue are entitled to a of cor Mata, rectness. Sumner 449 U.S. 764, 769, 66 L.Ed.2d turn, then, We third claim, that the state did not judge habeas dispositive necessary find facts re claim, prevail order to solve the ineffective of counsel assistance petitioner must show a preponderance judge found meticulously issue. the evidence counsel was ineffective historical facts on which petitioner based and that ineffectiveness caused actual claim, his ineffective assistance of counsel *23 conduct disadvantage substantial precise citing the on which he testimony Washington, of his defense. 693 F.2d at findings. based his points Petitioner to no evaluating claim, In this we must Therefore, facts that remain to be found. keep in mind that is effective counsel not court district had no to convene an duty counsel, errorless and that we should evidentiary hearing purpose. for this We hindsight rely measuring ineffective whether, thus to determine proceed State, v. Mylar ness. 671 F.2d 1300- established, in petitioner
facts was denied (11th Cir.1982) petition for cert. filed effective assistance of counsel. Mylar, — U.S. —, Alabama v. 103 now 77 L.Ed.2d We dis
B. aspects per cuss the three of trial counsel’s states that was Petitioner his counsel in- formance which were deficient. allegedly effective at trial in three We ways. first first, claims, Petitioner the legal governing articulate principles counsel was ineffective he failed to because contentions, these and then describe and three investigate possible lines of defense. each of analyze them. investigate Failure to can lines of defensе guaran
The sixth
support
amendment
an ineffective assistance
counsel
Strickland,
right
tees criminal defendants the
to coun
Washington
claim.
this
reasonably
sel
likely
depth
duty
to render
render
court discussed
counsel’s
rea
ing reasonably
given
investigate
effective assistance
be
sonably lines of defense
See,
totality
e.g.,
making
of the
strategic
pursue
circumstances.
fore
choice
Strickland,
Washington v.
693 F.2d
all of
possible
fewer than
lines
de
(5th
banc)
There,
sum,
1982) (en
stated,
Cir. Unit B
cert.
fense at trial.
“[I]n
granted — U.S. —,
attorney
77 an
who makes a
choice to
strategic
Ellis,
1332 (1983);
L.Ed.2d
than
investigation
MacKenna
channel his
into fewer
all
(5th Cir.1960),
F.2d
modified on
lines of
plausible
defense is effective so
which he bas-
long
assumptions upon
pattern analyst
as the
the blood stain
and Collins’
reasonable,
presented
his medical records and
them to
strategy
es his
are
he still
would not have shown that the
assumptions
on the basis of those
choices
assailant used his left arm to kill Delores
(footnote
are reasonable.”
To petitioner faults his trial on the on whether ground, found blood but presenting counsel, counsel for not a defense that who could have returned to the counsel, earliest, had no chance of success. Had scene a week later at the could his during pretrial investigation, photographs uncovered have obtained sufficient Washington deny petitioner’s failure to show we discussed several tests on the basis apply determining any prejudice, prejudice in a habe- could whether we find no under petitioner prejudice has to his case in judicially recognized prejudice shown tests for asserting an ineffective assistance of counsel ineffective assistance of counsel cases. petitioner’s which we claim. In those of claims Moreover, necessary guilt phase of his trial. ground yield on the blood course, intervening habeas he made no claim that testimony information. Of his ground weather could have disturbed the clothing have his produced he could lay which the victim to such an extent as to or the pаttern analysis jury’s blood stain finding counsel from such precluded Finally, we do not know examination. point. evidence. The record is silent on this what Durham or his brother would have said, if produced, subpoenaed testify decide, however, wheth We do called petitioner’s they trial. Had been photo procure er counsel’s failure to it is extremely to the stand doubtful breached graphs necessary to this defense cloth- they produced would have Durham’s conduct an investi duty appropriate his event, likely ing; any they most of evidence gation, because other items the fifth amendment. have invoked Col- indispensable presentation to a of this de lins, prosecuting petition, his habeas here available; namely, fense were not Collins’ court, as well as in state has made no clothing. Consequently, peti and Durham’s contrary.29 proffer prove prejudice required tioner cannot to make a sixth claim of out amendment petitioner alleges The third defense ineffective assistance of counsel. investigated his counsel should have is that Robins When Collins returned to Warner participation his in Delores Lester’s murder murder, following directly he went product of duress exerted on him his his girlfriend’s house and threw clothes his unusual with Durham. relationship laundry hamper. into a The record does Durham boyfriend peti was the Since happened not indicate what to the clothes man, peti tioner’s mother and a much older thereafter. The record also does not indi- strong argues, psycho tioner Durham had a precisely disposition cate the ultimate him, logical influence over which led him to Collins, Durham’s clothes. Lois Collins’ in the participate killing. only support His mother, deposition during whose was taken claim is his at the testimony for this brief petitioner’s proceedings, state habeas stated trial, sentencing phase of his and on habeas presumed she saw what she to be Dur- review, that he feared Durham. ham’s clothes at one Durham’s house or two Here, to show again, petitioner prej- fails days following his arrest. The clothes had trial, testify udice. Had he elected to Shortly blood smears and stains on them. mere he Durham statement feared thereafter, she saw Durham’s brother wash would have been insufficient to make out a out the clothes in a bathtub. The record psychological case of dominance. He has does not disclose the extent to which this evidence, no proffered objective such as a stains, obliterated the blood Dur- or what profile, that would have indi- psychological ham’s brother did with the clothes. cated that Durham dominated him or some- not, Petitioner could argue, though has committing how coerced him into murder. lawyer that his could have fashioned the prejudice Even if we could find blood stain spatter by introducing defense the basis of statement that he his and Durham’s clothing into evidence Durham, we that the defense of feared note through testimony petitioner’s girl- *25 friend, mother, duress would have conflicted with counsel’s Durham, his and Durham’s strategy, chosen trial to show that Durham brother. The does record not disclose what committed the crime and was the “bad girlfriend guy” might said. We have or A gist “prime strategic mover.” reasonable recounted the mother’s testimo- ny. witness, investigation choice can make into other apparently, pro- Neither could See, petitioner’s clothing. duce lines of peti- plausible unnecessary. Nor could defense tioner, he testify during e.g., Kemp, because refused to Jones v. 678 F.2d 931-32 event, shown, any analyst opinion In it has not been or cise for the to have rendered an argued, testimony position mere as to the blood on as to Collins’ at the time of the blow. sufficiently pre- the clothes would have been Counsel, testify. chosen a lins’ mother Collins was reluctant Cir.1982). having (11th event, however. testify, any for her to Durham as strategy portray reasonable eventually decided that she would counsel villain, not be found ineffective should impact made a favorable on the not have defense push he did not a line of because support petition To his habeas jury. actually client contributed that his presented court Collins affidavits state he did so because victim’s death but they who said could have from friends duress. Counsel’s psychological was under good vouched for his character at trial. in this choice as to the defense strategic countered these affidavits stat- Counsel was reasonable. case never him names ing gave that Collins Second, claims that coun petitioner friends; consequently, he made no of such to im ineffective because he failed sel was uncover It is attempt any. apparent testimony Talton’s peach Deputy Chief dispositive from the state habeas court’s with statement Taitón made a trial a gave the court to coun- order that credence At Taitón stated hearing. trial pretrial position give sel’s that Collins did not him Statement, Collins, said in his First name of character other any witnesses At the “raped” Delores Lester. had finding than his mother. We accord this a was uncertain as to hearing Taitón pretrial correctness. presumption of his intercourse petitioner depicted whether spoke frequently Counsel Collins The state “rape.” with Ms. Lester as a mother, than once with and more his and that counsel’s cross- habeas court concluded strategic made a choice not to call balance, was, ade of Taitón examination in mitigation mother as witness because quate. relationship of her with Durham her impeach po- failure to Trial counsel’s reputation community. unfavorable in the using prior incon- testimony by liceman’s knew that one of jurors Counsel sistent statements is not the kind of error probably strong negative have had a reac- rise to a claim of ineffectiveness. gives put tion toward her. Counsel did policeman did cross-examine the Counsel sentencing the stand at the phase; Collins challenge memory. his thoroughly briefly background, testified about his in the heat attorney That an does not recall employment history, and the events on the may words a witness precise of trial the murder. He that Dur- night of stated relatively occasion prior have used on he was killing, ham had done and that occurrence, and not render frequent does of Durham. While as a matter of afraid ineffective in a constitutional attorney might one conclude that counsel hindsight sense. develop- persistent could have been more ing mitigation, say evidence in we cannot Finally, petitioner contends and that his client that he was ineffective ineffective because he failed to counsel was within prejudiced meaning investigate possible use at the sentenc sixth amendment. his trial evidence of miti ing phase any carefully every We have considered claim gating alleges circumstances. Petitioner petitioner presented appeal. has We failed to look into his character counsel error warranting find no constitutional background and record and the of his fami the writ. Accordingly, issuance of failed to ly. alleges He also counsel court, judgment denying of the district regarding his relatives friends contact writ, is might have been able to testimony they give guilt punishment. on the issues of AFFIRMED. The state habeas court found that counsel TJOFLAT, Judge, concurring spe- Circuit
spoke extensively with Collins about *26 cially: presenting employer chance of a former parts I concur in the result and in all but testify mitigation influential citizen to in II.A.2., III.C.l., and III.D. the court’s suggested the sentence. Counsel Col- II.A.2., I opinion. part ing In would set out essential element of either malice must, judge’s jury rape, the trial instruction to the murder or why Sandstrom directs, in give on intent violated the rule set out Sand “careful attention to the words 510, Montana, spoken to the ... for wheth- actually strom v. S.Ct. U.S. (1979) finding L.Ed.2d 39 before er has been accorded his consti- a defendant following rights depends upon way the error harmless for the reason. tutional essential, juror it which a reasonable could have inter- A discussion of the claim is me, preted seems to a discussion of the harm the instruction.” 442 In Applying approach, lessness of the error. order to under at 2454.1 S.Ct. stand whether the error was harmless we intent instruction here would be erroneous was, following must understand what the error in in the manner. error on cluding probable impact The intent instruction in this case created I also would the court’s jury. amplify mandatory presumption. rebuttable It why discussion on the error was harmless. mandatory per- because there was no . III.C.l., In part petitioner’s I would reach such language, jury may missive as “the challenge to statutory aggravat the second infer”; language indicated that because, view, ing Zant my circumstance must jury apply presumption proof on — U.S. —, Stephens, of the basic facts. The instruction was (1983), does not control this prefaced by language indicating that issue I would adversely petitioner. rebuttable; however, presumption was aggravat find to this challenge instruction did jury not advise the as to the merit, ing circumstance without however. of evidence quantum the defendant needed III.D., Finally, part while I would arrive produce to rebut the presumption. The at the same the panel’s conclusion as does Court, assessing Sandstrom an intent in- I opinion, would discuss the claim more us, struction similar to the one before con-
fully. I treat these issues in turn here. fatal, deficiency sidered this to be because effectively it shifted the proof burden of A. the element of intent to the defendant. The trial court instructed the jury may interpreted have [T]he intent as follows: instruction as a direction to intent find A presumption is a conclusion which upon proof of the defendant’s voluntary given the law draws from facts. Each of (and “ordinary” actions their conse- the following presumptions go- that I am quences), unless the proved defendant rebuttable; ing give is, you is contrary by quantum proof some each is subject being overcome evi- may which well have been considerably dence to the contrary. Every person is greater than “some” evidence —thus ef- presumed to be of sound mind and discre- fectively shifting persua- the burden of person tion. The acts of a of sound mind sion on the element of intent. are presumed and discretion to be the (emphasis 442 U.S. at at 2456 product of the will. A person’s pеrson of in original). presumption on intent presumed sound mind and discretion is case, Sandstrom’s, like Collins’ could probable intend the natural and conse- interpreted by juror been a reasonable quences of acts. require the defendant to rebut more (emphasis added). Since, than “some” evidence. under Geor- law, gia clearly To determine whether this instruction re- intent was an element of trial,2 lieved the prosecutor prov- of the burden of malice murder at the time of Collins’ Sandstrom, quences voluntary Id. 1. Court was ana- of his acts.” instruction, lyzing following at 2453. intent similar presumes to the one involved here: law “[t]he Georgia law defined malice murder in the person ordinary that a intends conse- way: following person “A commits the offense
1351 According- a reason- killed Delores Lester. in the mind of Durham that presumption a of did not that the victim placed dispute have the burden Collins ly, able could juror disprove jack in the head with the car the defendant to was hit persuasion on struck her intended to kill impermissible. that whoever constitutionally intent was suggested, ar- He never much less her. claim analysis this Keeping The killing that the was an accident. gued, mind, question on to the I move parties for the only question posed was of the instruction giving whether therefore, who The was struck the victim. . a doubt.3 reasonable beyond harmless jury instruction that the should judge’s trial a Lamb, beyond found harmless error act presume (the striking that guilt where reasonable doubt evidence of blows) part showed an intent on the actor’s “overwhelming” improper was so that con- accomplish probable the natural and to to contributed instruction could not have (the death) of that act victim’s sequences 683 F.2d at decision convict. jury’s duty not relieve of its to find jury did Here, improp I that the 1342-43. conclude (the actor); fact disputed identity of the rea beyond er was a presumption harmless it shift burden of nor did Collins the because it not relieve sonable doubt did he was person that not the who proving issue jury to resolve a contested duty of its struck the blows. proof or the burden thereon. See shift (5th 618 McElroy, v. F.2d Holloway case, Francis, unlike In this Franklin Cir.1980), cert. denied 451 U.S. (11th Cir.1983), the assailant’s 720 F.2d (1981). L.Ed.2d 398 subject cause death was not a intent was that improper instruction was In Franklin the defendant dispute. “[t]he of sound mind and discre- person acts of a he gun of malice murder when the accused to be the presumed product tion are holding discharged. The central issue was A mind and person’s person will. of sound gun whether he fired the purposely was to intend the natural presumed discretion jury victim. How much burden the аcts.” To consequences of his probable on Franklin to evidence that placed present whether instruction was determine intent the death was he lacked cause harmless, must the “acts” Col- one examine jury’s to the of the intent crucial resolution might lins jury committed on which the case, contrast, in sharp issue. In this intent presumption to find intent. applied I death was not in cannot dispute. to cause a imagine how could conclude murder, the evidence regard With helpless a man crushes the of a when skull Durham took established Collins and smashing her by repeatedly female victim pecan off into the orchard. Col- victim jack head with a he does not over the car lins jack. carried the car The victim intend her death. times on head with the struck several jack, according experts; crime lab deal, here, emphasize I we do not Styles heard three blows. and Dur- intent. presumption of criminal with returned, carrying jack. ham Durham Rather, a presumption we deal of an act who is of sound legal posi- proof (by one prosecutor’s factual the con- mind) bring intent about throughout tion the trial was that Collins shows of the act. I reiterate: in this sequences struck the fatal blow. Collins’ defense denial; dispute no the act took straightforward argued case there is unlawfully justices ly when he and with malice Four murder conceded defendant. harmless, aforethought, express implied, either causes be decided that such error could not person.” Ann. of another the death Ga.Code indicated where “a defendant’s and four § 26-1101 conclusively if establish actions intent so conceded,” unequivocally be error could were Johnson, In Connecticut 460 U.S. Lamb, harmless. I our decision found follow (1983), L.Ed.2d supra, v. Johnson and the latter Connecticut agree violation of Court did not whether finding case. error in this view in harmless Sandstrom could be harmless where the error express- involved an element offense *28 against challenged of the act the victim’s will. The perpetrator and that the place rape conse- was irrelevant in the con- probable presumption intended the natural and Thus, the jury’s thereof—death. text. evaluation of Collins’ quences count, on the as the guilt rape malice argue, though could not con- Petitioner count, helped was neither nor hin- murder vincingly, that he committed other “acts” particular presumption. this dered presump- the the applying from which tion, have found that he intended to could summary, when one measures for the For he carried the example, kill the victim. error improp- harmlessness of caused place the where the victim was jack to erly burden-shifting presumption, one murdered, and he did not ask Durham to reviewing ask whether “a court can should life. His spare precise argu- the victim’s doubt the say beyond jury reasonable acts, from ment would be that these two unnecessary rely have found it to alone, jury presumed the that he intended Johnson, presumption.” the Connecticut v. alone, to kill the victim. These two acts n. 460 U.S. however, would not have authorized the J., (1983) (Powell, dissenting). L.Ed.2d 823 jury presume to that Collins intended to kill ways; Harmless error occur in two the may Delores Lester. Lamb, is, in first as we noted where the guilt overwhelming evidence of is so jurors We must assume that the listened jury pre- the could not have relied on the to, understood, the as it applied and law is, case, The in sumption. second this them; linchpin was read to this is the impermissible presumption ap- where the If the analysis. jurors applied Sandstrom plied particular yield to the facts does not them, presumption, given the as it was to to any ultimate fact that takes a contested jack failing the naked act of the or carrying With jury. respect issue from life, plead for the they victim’s could not charge, only malice murder act of which have used it to find that intended to death, probable the natural and result was kill Delores Lester. Neither of those acts creating thus a presumption of intent had as its natural probable consequence kill, sense, striking was the of the victim on the the victim’s death. In a broad these jack. head with the car It is uncontested acts have been may part of chain of victim; death; that the striker intended to kill the ending yet causation the victim’s evidence, argument by there was no or ei- jury could not or logically reasonably side, ther that the merely striker intended have found that death was the natural and injure killing the victim or that the probable consequence of either of them. rape charge, an accident. As for the intent I also conclude the presumption did rape Georgia was not an element of finding not allow the shortcut a were, even if it Collins admitted the first rape. prove rape, prosecutor To offense, to, element of the that he intended required to establish three elements: did, penetrate pre- the victim. The victim, penetration defendant’s of the sumption certainly played no role as to the force, her against consent. Collins admit- remaining elements of the offense. Ac- penetrated ted that he the victim. Intent cordingly, presumption instruction was was not an element raрe crime of beyond harmless a reasonable doubt. Georgia when Collins was tried. See Ga. Code Ann. 26-2001 The chal- § B. so, lenged instruction bore on intent context, this implicated. statutory aggravating Sandstrom was not The circumstance The only petitioner challenges elements of the crime of on which the trial rape remaining for court’s instructions was the one described in prove were force State 27-2534.1(b)(7)(1978), and lack of jury presumed consent. If the Ann. Ga.Code § “outrageously natural and offense of murder was probable consequences vile, or inhuman in that penetration, wantonly it could not have concluded horrible mind, torture, penetration depravity was forceable or involved or an it There, too, (11th Cir.1983). to the victim.” F.2d aggravated battery lan- statutory invalidated all Georgia Supreme tracked had charge actual “or an phrase not include the guage aggravating but did cir- statutory but one victim.” aggravated battery charged; yet upheld cumstances depravity define torture or charge did not on the the remain- death sentence basis of found jury specifically of mind. The statutory ing aggravating circumstance *29 circumstance.4 aggravating statutory had prosecution established. to this resolving petitioner’s challenge In Here, Georgia Supreme the Court has instruction, I would ask whether
jury
first
the death sentence on the basis of
upheld
light
Stephens, — U.S. —,
in
v.
of Zant
circumstances,
statutory aggravating
both
2733,
(1983), we
103
Petitioner has
us to no ease that
Court’s review of
sentence was comprehensive;
Georgia Supreme
Court failed to con-
court discussed his proportionality
re-
conducting
proportionality
sider in
its
claims as follows:
of the seventeen cases the
view. Most
that his
argues
penalty
death
court cited as similar involved defendants
should not
inasmuch as
upheld
be
Dur-
the jury
sentenced to death because
found
ham,
co-defendant,
his
given only
aggravating
at least one of the statutory
life
We
sentence.
have never followed
case,
found in
or
circumstances
Collins’
two
any simplistic rule that where one of mul-
statutory aggravating
other
circumstances.
tiple
given
co-defendants is
a life sen-
I cannot
the court for choosing
fault
those
tence, none of the other co-defendants
comparison purposes.12
cases for
may be sentenced to death. Neither have
per
we created a
se rule that where the
propor-
Petitioner asserts that the court’s
trigger man does not receive the death
review
tionality
was restricted to the nar-
sentence, may
it
not be imposed on other
question
anyone
row
of whether
had ever
participants
State,
in the crime. Hall v.
(b)(2)
been
sentenced
death under the
Ga.
Durham and victim William feet and admitted had blood on his He Petitioner-Appellant, first and then had hit the victim that he to com- jack Durham given had FRANCIS, Warden, Diag- Georgia Robert killing.13 plete finger print His Center, nostic Classification jack. on the Respondent-Appellee. Under, we cannot say the circumstances or an unwill- bystander Collinswas a No. 83-8028. the con- ing passive participant. On Appeals, States Court of United establishes trary, clearly the evidence Eleventh Circuit. participant he was an all active aspects of the and murder rape March State, Hill v. 237 Ga. victim. Atlanta, Ga., peti- for Bright, B. Stephen S.E.2d tioner-appellant. reviewing penalty In this the death Atlanta, Ga., Westmoreland, Beth Mary case, ap- we have the cases considered respondent-appellee. 1,1970, for January pealed to court since in which a death or life sentence was those simi-
imposed for murder. We find sup- Appendix
lar cases set forth in the penalty. the death
port affirmance of to death for mur-
Roger Collins’sentence disproportionate der is not excessive or AND PETITION FOR REHEARING ON cases, imposed penalty in similar con- PETITION REHEARING FOR the defend- sidering both the crime and EN BANC 27-2537(c)(3). Ann. ant. Code § State, 299-300, Ga. sum, agree at 735. I cannot S.E.2d GODBOLD, Judge, RO- Before Chief that the petitioner Georgia Supreme Court TJOFLAT, FAY, VANCE, NEY, HILL, out carry statutory failed to its mandate to HENDERSON, KRAVITCH, JOHNSON, consider similar cases and determine the CLARK, HATCHETT, ANDERSON sentence, proportionality call- Judges. Circuit constitutionality into
ing question the petitioner’s sentence. THE BY COURT: of this in active service
A member Court having requested application on the poll en rehearing majority banc and a having in this in active service judges rehearing en granting voted in favor banc, cause shall be
IT ORDERED that IS *34 with oral reheard this Court en banc fixed. on a hereafter to be argument date schedule briefing will specify The Clerk of en filing for the banc briefs. evidence, reargues asserting and malice murder and its recommendation 13. Petitioner all, supported guilty guilty, also that he was no if than a death sentence. The evidence more culpable sidesteps jury’s finding petitioner argument more his cohorts. This rape finding petitioner guilty his cohorts. of both than notes justification capital punish- the retributive for is, imposing penalty, tion death (id. 889) ment are for the sentenc- relevant face, horribleness of the crime itself. We here consideration, er’s and that these are not argument no “emotional bombastic” jury to into relevant issues for the take any but crime itself. matter (Id. 5.) opinion account. at 888 n. That