Spivey v. Turpin

the briefs case, copies of together with herewith. is transmitted parties, III. question law the state CERTIFY

We subject per- a non-resident

whether § 9-10- under jurisdiction O.C.G.A.

sonal

91(2) anoth- discloses improperly when a federal trade secret to

er non-resident’s office. WITH- at its We

agency the district any decision about

HOLD want of of the case for dismissal

court’s QUESTION CER- jurisdiction.

personal

TIFIED. SPIVEY, Keith Petitioner-

Ronald

Appellant, HEAD, Warden, Georgia J.

Frederick Prison,

Diagnostic Classification

Respondent-Appellee.

No. 98-8288. Court of Appeals, States

United

Eleventh Circuit.

March Berlin, Mertens, & Swidler

William J. DC, Chartered, for Petition- Washington, er-Appellant. Smith, Dept, of GA

Paula Khristian Atlanta, GA, Law, Respondent-Appel- lee. ANDERSON, Judge, Chief

Before BARKETT, Judges. Circuit CARNES ANDERSON, Judge: Chief of mur- convicted Spivey, Keith Ronald aggra- der, robbery, and kidnaping, armed vated assault in the state of Georgia courts fled car.2 The next morning, police in death, appeals sentenced to the dis- Alabama Spivey arrested and freed David- trict petition court’s denial his for a son. writ corpus pursuant habeas to 28 U.S.C. Spivey June of was tried for the § below, 2254. For the reasons stated we activities taking place Columbus and

affirm. murder, convicted of kidnaping, armed

robbery, and aggravated assault in Musco- I. FACTUAL & PROCEDURAL gee County court, Superior Court. The

BACKGROUND upon the jury, recommendation of the sen- tenced him to Georgia death. The Su- Spivey began Ronald the evening of De- preme Court affirmed the conviction 27, 1976, cember by entering a bar in State, Spivey v. 241 Ga. 246 S.E.2d Macon, Georgia. got Inside he into an (1978). The United States Supreme argument with McCook over Charles a Court denied certiorari. See twenty-dollar pool game bet. Spivey end- Georgia, U.S. ed the dispute by firing gun which (1978) (mem.). L.Ed.2d 699 Spivey then bystander wounded a McCook, and killed pursued relief, state collateral but the Su- from whose pocket shirt Spivey then took perior Court of County Butts denied his twenty-dollar bill. went next to corpus petition, Georgia Su- another Macon bar gun- and robbed preme Court proba- denied certificate of point.1 ble cause to appeal, and the United States Supreme Court denied certiorari. See there, From proceeded Columbus, Zant, bar, where he entered another (1979)(mem.). Approach. Final While robbing the two inside, waitresses and one customer Spivey Spivey petitioned next the United States Watson, Billy saw an off-duty Columbus District Court for the Middle District of police officer working security guard as Georgia for a writ corpus. of habeas The nearby restaurant, Allen, Buddy and district court the petition. denied Spivey manager, the restaurant’s coming to inves- appealed to the United States of Court tigate. At range, close Spivey shot and Appeals for the Fifth Circuit. The Court killed Watson. He shot also Allen two or Appeals of reversed and remanded for an three Spivey times. took the waitresses evidentiary on hearing the circumstances hostage and customer proceeded and to psychiatric of a Spivey evaluation of con lot, the parking up picking gun Watson’s ducted before his trial. See Spivey v. shooting again and Allen along way. Zant, (5th 661 F.2d 464 Cir. Unit B Nov. Allen, alive, still got and went up to his 1981), denied, cert. 1111, 102 458 U.S. S.Ct. restaurant get help. to Spivey shot sever- 3495, (1982). The district al times into the wounding restaurant court held an evidentiary hearing and bartender. He then took one of his hos- again Spivey denied relief. The Court of Mary tages, Davidson, Jane with him as he Appeals vacated and remanded. See Spi- 1. County, In Bibb Spivey was tried and part con- was based in on the use of evidence of robbery victed murder and armed and sen- gathered psychiatric in a Spi- examination of imprisonment tenced to life for the former vey that was in conducted violation of his twenty years for the Supreme latter. The rights. constitutional Court of affirmed conviction in State, 114, Spivey v. 244 Ga. 259 S.E.2d 60 Although Spivey allegedly sexually assaulted (1979). review, however, On state collateral Davidson, charged he was never any Superior Court County, Georgia of Butts sexual offense. granted Spivey a writ of corpus habeas in 1986, conviction, vacating thus because it

1269 Thomas, v. (5th Spivey January ri in 1996. See B. Zant, Cir. Unit F.2d 881 683 vey v. 784, 1077, L.Ed.2d 116 133 of 516 U.S. S.Ct. September remand On Aug.1982). (1996) (mem.). Although the district cor- habeas 734 1982, granted court district petition the federal habeas court dismissed relief. pus filed a second Spivey prejudice, without was tried Spivey of In November court with the district petition habeas County. Muscogee again convicted 17, 1995; the State does not November the death jury recommended Again petition is successive. On contend that the Spivey court and the sentenced penalty court de- the district December af- Court Georgia Supreme The death. order, Spivey Prom this petition. nied the State, 253 Ga. firmed, v. Spivey see appeals. now (1984), and the United 319 S.E.2d certiorari, twenty denied Supreme Court enumerates appeal, he States On 1132, 105 Georgia, them, 469 U.S. argues v. Among Spivey see claims.3 (1985) (mem.). 1) L.Ed.2d of a fair trial because deprived S.Ct. was he of change the failure to publicity and pretrial avenues the various pursued then 2) venue, a fair trial deprived he of 1985, Spi- of In March relief. collateral of during the tri security measures excessive Butts Court of Superior vey petitioned 3) a fair al, right his he was denied corpus. The County for a writ judge’s trial restric jury by the impartial hearing in October held a court dire, pro to excuse refusal tions on voir Supreme in March 1989. relief denied bias, jurors for and excusal spective a certificate Georgia denied Court objected who jurors prospective Supreme and the appeal cause probable 4) a funda was denied penalty, death denied certiora of the United States by the im prosecutor’s fair trial mentally 1074, 110 Kemp, U.S. ri. See 5) prior jury, arguments to proper (mem.). (1990) 1797, 108 L.Ed.2d S.Ct. relied on sen conviction was vacated Dis States the United petitioned next He Eighth Amend violating his tencing thus District Geor for the Middle trict Court Mississippi, rights ment under Johnson court for habeas relief. The gia district 100 L.Ed.2d proceedings the habeas stayed April 6) (1988), unconstitution and the state 575 state a second Spivey pursue to allow in viola material exculpatory ally withheld the State’s with regarding petition U.S. Maryland, Brady tion of de to the evidence favorable holding of (1963). 1194, 10L.Ed.2d 215 S.Ct. court dismissed The state habeas fense. April in as successive petition second Georgia de Supreme Court OF REVIEW II. STANDARD cause probable Spivey certificate nied petition a habeas reviewing When Supreme and the in appeal June court, in state fed- convicted from someone certiora- denied of the United States evidence, particular in illness be- of some mental twenty-four claims Spivey enumerated 3. court, appeal does not on which were relied portions fore the district records of medical underrepre- (arguing XIX that argue Claims psychiatric expert, violated his by Spivey’s particular groups, in of distinct sentation Sixth, Fifth, Eighth, and Fourteenth Amend- blacks, women, and persons between 18 and (arguing that cu- rights), and ment XXIV grand traverse age, and years of on his errors ren- constitutional effect of mulative all Fourteenth his Sixth and juries violated unfair) fundamentally and thus the trial dered (challenging the trial rights), XX Amendment abandoned. None- these four claims we find theless, ob- request funds to of his court's denial by utilized numbers we use the claim experts to as- sociological and statistical tain parties' in the and court below the district challenges establishing to the his sist briefs. at trial (arguing the exclusion pools), XXI that eral only grant courts can the writ on the To pretrial establish that publici ground of violation of the Constitution or ty prejudiced Spivey an without actual 2254(a). federal law. See 28 U.S.C. Fur- showing prejudice box, thermore, we will not review state court must show that pretrial first publicity decisions on federal claims that rest on was sufficiently prejudicial and inflamma grounds, state law including procedural de- tory and second that prejudicial pre grounds, fault that are independent and publicity trial saturated the community adequate support judgment. See where the trial being held. See Cole Coleman v. Thompson, 722, 729, 501 U.S. (11th man v. Kemp, 778 F.2d (1991). S.Ct. 115 L.Ed.2d 640 Cir.1985); Louisiana, Rideau v. Factual by determinations made the state (1963). court are presumed be correct unless Coleman, we emphasized “pre that the rebutted eight in one of possible ways, sumptive prejudice recognized standard including showing that the factual deter- Rideau only rarely applicable ... and is mination fairly is not supported by the reserved for an extreme situation.” 778 2254(d) (1995) record. See 28 U.S.C. (citations F.2d at 1537 quotation (amended 1996).4 omitted). marks Furthermore, Spivey’s

burden “to show pretrial that publicity de prived him of right to a fair trial before III. LEGAL ANALYSIS an impartial jury is an extremely heavy one.” Id. A. Claim & II: Publicity Pretrial And Change Venue Of We have carefully reviewed the record and conclude that, Spivey argues has given not satisfied amount of this burden. prejudicial pretrial publicity publicity, cited is a num- trial judge’s ber of refusal to change newspaper articles. venue Most of these deprived appellant are factual his constitutional accounts of the criminal events right to a by trial a fair impartial and are jury. neither sufficiently prejudicial nor argues further inflammatory the reporting of to make the necessary prosecutor’s comments criticizing showing. Many of these accounts were death penalty jurisprudence of the published years U.S. before the trial. Other Court of Appeals for the articles, 11th Circuit exac including the one containing the problem erbated pretrial publicity.5 prosecutor’s comments, direct criticism at 4. petition (mem.), filed his for writ of habeas and the state here has asserted 17, 1995, corpus on November before the opted meeting require- these 24, 1996) (April effective date of the Antiter ments. rorism Effective Penalty Death Act of ("AEDPA”), therefore AEDPA II, Spivey In Claim prose- contends provisions, standard of review codified at 28 cutor’s comments inflamed community 2254(d), (e), § U.S.C. applicable. are not See against him and constitute misconduct war- 320, Murphy, Lindh v. 521 U.S. ranting habeas relief. Spivey's To the extent 2059, (1997) (holding L.Ed.2d 481 AED- Claim II is a substantive claim pros- based on PA provisions standard of review inapplicable ecutorial independent misconduct of Claim I's noncapital in a pending case when AEDPA change venue prejudicial pretrial publici- enacted); was Singletary, Mills v. 161 F.3d ty grounds, agree we with the district court (11th Cir.1998) 6n. (holding same procedurally and find it for case). addition, defaulted failure capital in a In the AEDPA's to raise in the trial special court and ap- direct corpus procedures on capital for cases, peal. Nonetheless, 2261-66, evaluating in §§ at 28 codified U.S.C. Claim I and do apply pretrial whether the they require publicity because "opt prejudicial, a state to was in” to meeting requirements, them we pretrial certain consider publicity all relevant Neelley see Nagle, including any reports F.3d 921-22 prosecutor’s of the com- (11th Cir.1998), denied, cert. 525 U.S. ments. (1999) 142 L.Ed.2d 671 ex- security to the sheriff and that room death have handled courts federal how the unduly preju- security measures mention cessive only obliquely cases penalty therefore, thereby him of his and, depriving not suffi- are diced case fair all, right or inflammato- to a trial. prejudicial constitutional if at ciently, court prejudi- articles reflects that the trial had record neither Although some ry. in elements, the mention nor that responsibility for instance abdicated its cial Enquir- Columbus unduly prejudicial. measures were November once the editor Spivey to er of a letter has not guilt, Spivey on the sher confessing his The trial court relied

wrote or typical were in of that such articles and assistance matters expertise iffs shown Rideau, at did not abdicate widespread. security, but courtroom Cf. pro- trial, a due (finding denial of the court made Early S.Ct. in the control. request trial court refused where of the fact that cess clear that was “aware community after the of venue change adequate secu provide for does sheriffs office to depth” “repeatedly security” exposed adequate was rity provide and will of an interview of television broadcast expertise. going rely on and was detail). Thus, confessing defendant court decided at Trans. 211-12. The Tr. pretrial that the to establish fails light of party must sit which each table in- or sufficiently prejudicial was publicity the courtroom and security of both require constitutionally flammatory of considering the advice after defendant change of venue. 4-11. Tr. Trans. When the sheriff. See num objected' to the counsel the defense Furthermore, to show fails responded: the court guards, of ber publicity saturated pretrial that concerns your [about Because held. being trial was community where the defendant], I have ordered safety of trial to Coleman where In contrast can— to be here so we people these strike almost one-half court had to he is question no there be can jurors questioned who were prospective ' safe.... be opinion an they had formed whether see 778 opinion, Spi- a fixed they cause had concern and Mr. your But on based many Columbus, of the prospective here that is F.2d about vey’s concerns anything about not heard jurors had I I think would security is—and why the little, if very most remembered case and if I did not see my duty doing not be Spivey, 319 S.E.2d about it. See anything, security. ample there seventy fact, only six at 432. added). Al- (emphasis 21-22 Tr. Trans. because of jurors were struck prospective said, given “I have court later though the See pretrial publicity. exposure their courtroom to securing this responsibility of Georgia Supreme with the agree id. We to tell going ... I’m not office the sheriffs of venire percentage low “[t]he Court that security” and carry their them how from resulting prejudice men excused securi- responsibility [for given “I’ve strong is evidence pretrial publicity and it their office is ty] to the sheriffs community bias.” prejudicial absence necessary they feel duty to do whatever with re district court Id. affirm the We safe,” of the context to make it II.& spect to Claims only indicate these remarks proceeding court, maintaining ultimate while that the In Security III: Measures B. Claim fairness, secu- the trial’s responsibility Courtroom The decorum, the letting was sheriffs rity, and regarding tactical decisions office the make the trial III that argues Claim nec- which guards, the was deployment of for court- responsibility court abdicated 1272

essarily by overseen the trial judge. court inherently prejudicial practice of If the office or guards shackling, sheriffs closely acted be scrutinized and in- stead case-by-case manner inconsistent with the trial held that “a court’s approach is more appropriate.” 568-69, responsibilities, ultimate U.S. at court had the 106 S.Ct. 1340. The Court authority to order articulated security different mea standard: abdication, sures. Unlike an delega partial tion here was In revocable. All a may federal court do such a addition, the trial when court overruled situation is look at the presented scene Spivey’s motion for a mistrial based on the jurors and determine whether what security by measures taken the sheriff and they saw was so inherently prejudicial guards, it implicitly approved of the pose as to an unacceptable threat measures. Allen v. Montgomery, Cf. right trial; defendant’s to a fair if the (11th Cir.1984) (find F.2d 1412 n. 3 challenged practice not found inher- ing no constitutional in permitting error ently prejudicial and if the defendant the sheriff to decide what security mea fails to prejudice, show actual inqui- sures were necessary to transport defen ry is over. dant to trial safely where the sheriff 572,106 475 U.S. at S.Ct. 1340.

shackled him and trial judge implicitly at least indicated he would have ordered sim Spivey asserts that uniformed ilar precautions security by denying a mo guards, usually eight, him, surrounded tion for mistrial in which found that the moved when running he moved behind him reasonable). precautions were leaping corners, from treated him like a wild dog, interfered ability with his The failure abdication freely counsel, communicate with argument dispositive III, is not of Claim cut off his attorney from his defense cons for a constitutional place, violation takes ultants.6 guards’ The actions, Spivey ar regardless of who is ultimately responsible gues, gave jurors the impression that measures, for the if the security measures he was a dangerous man.7 were so inherently prejudicial they denied a fair him trial. In Holbrook v. We first ascertain pre the scene Flynn, U.S. jurors. sented to the See id. Spivey was (1986), L.Ed.2d 525 Supreme not shackled. He permitted was to stand denied a petitioner’s claim that con questions ask during voir dire. There spicuous uniformed guards armed present were at eight times guards uniformed unduly trial prejudiced jury. The courtroom, though at other times few rejected Court first that the idea de guards er. The did not form a semicircle ployment security personnel should, like around Spivey. See Tr. Trans. 6. complaints These two proper- last are more potentially prejudicial most incident is ly grounded right in the guard to counsel rather allegedly when one standing shoved the right than the Regardless, to fair trial. back down into his during chair provides record no Spi- factual basis for the potential voir dire juror Aliena McCann. vey's security claims that the imper- However, measures See Tr. guard Tran. 765-67. missibly ability interfered with his to commu- testified that physically push he did not Spi nicate attorney attorney and cut the vey and empaneled, McCann never see off from jury 1248.23, the defense’s consultants. Tr. Trans. so was not denied fact, the Spivey's record indicates that attor- impartial juror fair and by observing her ney was adequately able to confer with these transpired whatever homa, here. Ross Okla Cf. consultants, including on at least one occa- sion private provided in a room (1988) the court L.Ed.2d (holding that claims that during process. selection See Tr. impartial was not must focus Trans. sat). 415-16. actually the trial court and therefore penalty death a semicircle forming not (“[TJhey’re all. excused them have should him.”); at 436 319 S.E.2d Spivey, around did not officers (“The shows the record that Spi- court found The state habeas Spivey.”). We around a semicircle form for later review preserve did not vey inherently not so scene was that this find refusal to excuse the trial court’s issue of unacceptable an pose to as prejudicial Tellis, Morgan, and Huckaby, Penny, trial. The to a fair right to threat it on direct because he did Brown raise posed a fair trial right to to the 4(W) threat Having 47. p. Ex. appeal. Resp. guards these uniformed of presence record, agree we carefully reviewed the especially acceptable, slight and to respect both claim with these and find his to the defendant’s defaulted. jurors proeedurally the threats fight prospective of jail his through fired fife and the bullet jury “guar trial right Wainwright, Zygadlo window. Cf. fair criminally accused a trial to the antees Cir.1983) (11th (denying habeas F.2d 1221 jurors.” ‘indifferent’ by panel impartial of court ordered relief where state trial 717, 722, Dowd, 81 S.Ct. Irvin U.S. legs, fight defendant’s shackling of the (1961); see Ross v. previous made had fact that defendant of 81, 85, Oklahoma, 487 U.S. appearance awaiting while attempt escape (“It (1988) is well settled L.Ed.2d 80 court). affirm the Accordingly, we before Fourteenth Amend that the Sixth III. Claim respect court district trial for a defendant on guarantee ments jury.”). impartial an right fife the

his IV,V,VI, Right To & VII: impartial C. Claims was not Claims Jury jurors actually who sat. Impartial A Fair And on the must focus 2273; Ross, See VI, Spivey argues V and Claim (11th Jones, 1126, 1133 941 F.2d Heath v. jurors un impartial to a right Cir.1991) petitioner (holding that Amend and Fourteenth the Sixth der court’s denials only raise the can trial the trial court violated ments was when venire mem for cause of those challenges jurors for prospective to excuse refused jury). eventually sit on bers who prospective maintains cause.8 however, jurors, prospective None of Moseley, Cel- Day, jurors Linda Waltroud Penny, who of-save Spivey complains McMiehael, John Lyons, Justine estrial part of the defaulted-were proeedurally Burrus, Broom, Meachum, Edward Sidney in this case. The actually sat Ruby Lynes, and Penny, Mark Dorothy challenges used his peremptory defendant McMiehael, pro and that bias Huckaby Lyons, Day, Moseley, demonstrated to strike Tellis, jurors Broom, Mor as Meachum, Lynes Kenneth jurors spective Ollie ju Brown, alternate Burrus, Huckaby as Betty Burrus and Edward gan, 1248.16-1248.28. Tr. Trans. rors. See in favor of the Ruby Huckaby were biased your vengeance play in revenge IV, or should argues that the trial 8. In Claim impose the death or not to Although whether decision voir dire. unfairly court restricted you feel about the death penalty?” "How do defense permit some of court did not the trial punishment?” and penalty as criminal type what questions, as "In such counsel’s your deci- conscientious “What is the basis penalty be death would you think the cases do Tr. Trans. penalty?” death to favor the sion you first heard that appropriate?” "When 356-57, case, Given the breadth what went penalty a death this was through your counsel as permitted defense questions you what do "On mind?”and questions, we own as the trial court's Tr. well penalty?” your death base belief adequate constitutionally 360-362, 347, 350, many voir dire find the allow it did Trans. partiali- or for bias prospective jurors test the penal- death including you feel the "Do others court with the district ty affirm and therefore types of to certain ty be should limited respect to Claim IV. any opinion case your “In crimes?” 1274 complains9

The appellant that he excusing jurors cause those whose was forced to views peremptory opposed use his the death penalty chal but who they said could follow the law. lenges Prospec- to prospective jurors remove whom jurors tive Hughley Waltina and Denise alleges he should have been removed for Hale, asserts, at first stated their argues cause. He that because he had to objections conscientious to the death pen- reserve his peremptory last challenge for alty then they said were willing to Burrus, Estell, Doris whom he would have consider it. otherwise peremptorily challenged, ended Ross, up jury. on the the Supreme In Witherspoon, Supreme “reject[ed] Court notion that the held that “a loss sentence death can not be carried out if jury peremptory imposed challenges constitutes vio or recommended it by was chosen exclud lation of the right constitutional an im to ing venire men for cause simply because Ross, partial jury.” 487 U.S. at 88. The they general objections voiced to the death Court elaborated: long “So as the jury penalty or expressed conscientious or reli that sits is impartial, the fact that gious scruples against its infliction.” 391 defendant had to use a peremptory chal 522, U.S. at 88 S.Ct. 1770. Attempting to lenge to achieve that result does not mean alleviate confusion the lower courts and the Sixth Amendment was violated.” standard, to refine the Wainwright v. Ross, 88; 487 U.S. at see also United Witt, 412, 844, 469 U.S. 105 S.Ct. 83 Farmer, 1557, States v. 923 F.2d 1566 (1985), L.Ed.2d 841 the Court revisited the (11th Cir.1991) (rejecting appellant’s argu issue of degree what deference federal ment that trial court’s refusal to excuse court in a corpus proceeding should jurors for cause and the resultant by use pay a state court’s excusal of prospective the defendant of his peremptory chal jurors for their views opposing capital pun lenges to jurors remove required these ishment. It held that the standard is reversal). The fact that Estell on sat juror’s “whether the views would ‘prevent produce did not impartial an or substantially or a impair performance his juror constitutional duties as a error. chal accordance with never ” Witt, instructions and his lenged oath.’ Estell for cause in the U.S. trial court at 105 S.Ct. 844 (quoting Adams v. only now asserts that she is an unde Texas, 38, 45, U.S. S.Ct. juror, juror sirable not a who should have (1980)). L.Ed.2d 581 The Court added been excused for cause.10 See Tr. Trans. standard this does require not 1097-1103 and Appellant’s brief 10-29-98 “juror’s proved bias be with ‘unmistak n. 7. Spivey fails to establish that his ” clarity.’ able Id. Noting that assess constitutional to right impartial an ments of demeanor and credibility “pe are violated the trial court’s refusal to culiarly within a trial judge’s province,” jurors excuse these for cause. the Court decided that the trial court’s determination on this issue is a factual VII, In Claim Spivey relies on Wither- finding deserving deference habeas re spoon Illinois, 88 S.Ct. Witt, view. 428-29, 469 U.S. at (1968), Adams 844. Texas, U.S. (1980), L.Ed.2d 581 argue that the trial Applying standard, this the tri court violated his constitutional rights by al court did not constitutionally err in ex- Appellant's 9. argument vague; he points Although appeal on his direct supreme no state have this constitutional violation and court articulates no Estell claimed should cause, theory been struck for general repeat did suggestion other than of un- claim the district court below or make Appellant fairness. does not even Ross. cite it to Court. entirety applying its Hugh- jurors in Although Hale. cusing Hughley Witt, find no we articulated standard she thought she points said at ley some in the trial court’s ex- error constitutional juror and consider duty as a her do could affirm the and Hale.12We Hughley cusal of testimony viewed her penalty, death the IV, V, Claims respect court to district with excu- trial court’s entirety supports its VI, & VII. stated: Hughley sal.11 the case Well, know about if I did even VIII, IX, Propriety . X: D. Claims Of [the still she it and fair about to [be] Arguments Prosecutor’s The know, to, you had we judge] said trial VIII, IX, X, Spivey and In Claims arr think I could I don’t penalty, say death improper made gues prosecutor don’t, I really I don’t think for it. vote at closing arguments in his arguments it. vote for could determination guilt-innocence both These sentencing phase. phase and claims, denied improper arguments, penalty. the death give could] [n]ever [I fundamentally fair trial war- him of trhth. telling I’m fair. being I’m rant reversal. sufficiently testimony This Tran. 723. Tr. would Hughley’s views

demonstrates argu prosecutorial Improper ability substantially impair her or law, prevent of ments, especially misstatements Likewise, penalty. the death impose to carefully because must considered be contra- though at times testimony, Hale’s of state au in the cloak wrapped “while her sufficiently demonstrates that dictory, impact on heightened have a thority [they] im- substantially or prevent views would F.2d Kemp, 762 jury.” Drake the death sen- ability impose Cir.1985). (11th assessing her this pair When 1459 fully could not indicates she claim, tence. She examines of type penalty the death fairly proceeding consider judicial of the context entire case where type no of unfair. imagine fundamentally can that she if it was determine impose voting 1400 Kemp, could consider 762 F.2d she See Brooks (en vacated, Cir.1985) banc), 1182. (11th Tr. Trans. 478 U.S. penalty. See death mind jurors’ of L.Ed.2d 732 of states The assessments S.Ct. (1987). reinstated, of de- (1986), determinations 809 F.2d upon “based are remark, credibility peculiarly prosecutorial that are every improper Not meanor See id. therefore, are trial unfair. renders the judge’s province” and within a trial do, however, render arguments on habeas Improper to deference entitled therefore fundamen sentencing hearing Witt, capital at 469 U.S. review. when reversal require jurors tally satis- unfair and these testimony of 844. they probability reasonable be there is a they should the trial court fied See id. case. the outcome changed Having reviewed cause. struck “ is a ‘A reasonable probability 1402. prospective these testimony of voir dire dire, exchange Tr. Tran.719 following took On voir 11. prosecutor: Hughley and the place between Q: also below pen- Although district feelings court your about death Are strong respect that no matter what the excusal alty ... so found violation no might be of the case or facts circumstances and An- jurors Moore Albert prospective impose vote to you never ... could conscientious of their White because nette penalty? death penalty, we do not death objection to the right. A: That’s Spivey does not jurors because these address Q: giving even consider You never could was im- excusal argue appeal that their on right? penalty, is that the death proper. right. A: That is probability sufficient to term, undermine confi- draw, ter the lot you we ” dence Id. at (quot- outcome.’ will make this decision which critically ing v. Washington, Strickland important obviously defendant, to the 668, 669, literally .stake, it is his life that is at (1984)). arguments, regardless Proper also critically important to each and ev- their impact case, the outcome of the do ery one citizens of Muscogee Therefore, not render a trial unfair. first County eyes whose are focused on us at we examine the arguments state’s here to this time. identify those that were improper light in Tr. Trans. Spivey 2460-61. maintains that of Georgia’s capital sentencing regime. prosecutor argued that jury should Then we if these improper determine ar- sentence the defendant to death not on the guments in a probability reasonable evidence in accordance with the appropri- changed the outcome of the case. standards, ate legal but because it was VIII, In Claim Spivey argues what the community wanted expected. that the prosecutor improperly argued Although such an argument would be im- that the community wanted a death sen proper, we interpret the prosecutor’s clos- tence and hold jury would accountable ing here differently and find it proper, for their verdict. closing argument though somewhat ambiguously phrased.13 at the sentencing phase, prosecutor Brooks, (“[Isolated See 762 F.2d at 1400 argued: or ambiguous or unintentional remarks Your say will verdict one of two things must be viewed lenity.”). Rather everyone will know it. There has than urging to return a death been a lot of interest in this trial. You sentence community because the demands have been isolated from news media cov- it, prosecutor emphasized that erage and properly so you because are must decide based on the they evidence pass on, I and don’t know what some- perceived on the charge the court will of, one’s interpretation is the events give. here, which have occurred you are to

pass references to you on perceive community what the evidence indicate the be obvious: the charge [sic] the at the you hear from sen tencing phase the court. But is there has been asked to a lot of decide “what justice interest attracted to this case. demands society And I perform in reminded if you yesterday you response recall [to the crime].” Collins v. Fran verdict, is your cis, speaks (11th not for 1322, 1341 Cir.1984). F.2d A just the you twelve of individually and jury’s consideration of the appropriateness collectively which certainly is done but it of retribution proper. Brooks, is See your is speaks verdict for the entire F.2d at case, 1407. In this prosecutor system, the 173,000 entire population, all essentially argued should be us, believe, of I in Muscogee County. sentenced to death because that is the And not you of one chose to be here. punishment society. he owes to In other am confident of that.... words, jurors acting as representa

But by system justice that we tives of the county must if decide the death operate under and the lack of a bet- penalty is appropriate punitive action. 13. Defense did object counsel not case, trial on our review the claim this the lack "community this expectations” objection basis which of an is a factor to be considered in suggests that he too at the interpreted examining time impact prosecutor’s of a argu- the statement ment.”). as we do and not as now Only appeal did raise this Brooks, asserts it interpreted. should be See issue. Spivey, See 319 S.E.2d at 427. The 762 F.2d at 1397 ("Although n. 19 counsel's State procedural does assert a bar in this object failure to argument to the regard. does not bar 22 ... an State’s Exhibit Number prosecutor con- point, Clarifying Indictment, guilty, and a verdict tinued: imprisonment sentence to life say one of going verdict is your And County, Georgia. in Bibb defendant things. going two It’s things, one of two mur- You know when he committed that Muscogee County, Geor- say that County, Georgia? der in Bibb Two you if violate and in Columbus gia, one, hours before he committed the or law, human life with malice you if take three hours before he committed the one aggra- if under aforethought, it’s done your Muscogee County. So verdict of are you going, circumstances vating day imprisonment life will not add one trial, you a fair trial and you given are to this man.... If he is punishment convicted, guilty beyond a rea- are found on the imprisonment sentenced to life you going pun- are to be doubt sonable him you give first murder and life on going punished are to be you ished and second, appropriate punishment? is that you that And submit appropriately. of, “We, jury, rec- a the is what verdict claims that Spivey Tr. Trans. 2462-63. say. will Or penalty” the death ommend the second life sentence would have ex- say Muscogee will in Coun- your verdict eligi- time before he was tended the which you if take those circumstances ty, given §Ann. 42-9- parole ble for under Ga.Code aforethought, malice of human life with 39(b) and would have been addi- therefore circum- aggravating if do it under you responds The state punishment. tional robbery you in an armed stances such as sentencing that at the time of literally a on the going get slap are jury the from consider- Georgia law barred wrist. ing parole eligibility sentencing. in See State, Quick 353 S.E.2d Ga. light jury’s In of the Tr. Trans. 2461-62. (1987). Quick, Georgia In the role and its dis- policy and representative recommended, upon an in- Supreme Court or not to determining cretion in whether by jury, the quiry parole eligibility into sentence, prose- the recommend the death instruct the the trial court should policy what statement may argue cutor sentence, death jurors to assume that their Muscogee will make for Coun- each verdict will carried out. imprisonment, or life be Thus, fails because ty.14 Claim VIII life Although id. at 503 n. 3. second See improper. is not prosecutor’s argument parole eligi- have affected sentence would course, for a improper it is Of would have bility, imposed the sentence misrepresent to mislead or prosecutor imprisonment. life been the same: jury, including meaning of law to the pros Assuming arguendo that X, Spivey In contends verdict. Claim argu and his misstate the law ecutor did misleading just prosecutor did improper, we conclude ment was therefore Spivey’s prior jury meaning on the of probability reasonable that there is not a life and the effect of a second life sentence the out changed the misstatement why a life sentence Explaining sentence. sentencing stage, At the wrist,” come of the case. just slap “a on the verdict would be of jury question faced the central during the prosecutor closing in his to death or to to sentence whether sentencing phase continued: task, 1340-41, Collins, discharging policy. we ex- In 728 F.2d at In determining the important policy representa- a fact in plained functions as finder jury plays: aggravating mitigating cir- presence that the tive role of cumstances, policy as a mak- but acts [also] employed by sentencing model Under determining whether a sentence er in given capital cases the is imprisonment should be im- task, death or life Georgia Supreme subject to full review, sentencing posed. fashioning state imprisonment. life Parole was not a Ron be released. We are asked meaningful factor their decision that he be kept prison as rest his life.” Tr. argument implic- slap focus of defense counsel’s Trans. 2494. The on the phrasing wrist itly hyperbola which is un- demonstrated: likely to have affected even minimally a ever, ever, Ron Spivey should not ever jury facing question gravity with the jail. be from you released I submit to put the one before light it here. In of the that when the last passes breath out of totality circumstances, of the prosecu- bars, body, he will be behind ladies argument tor’s meaning about the of the and gentlemen; and that’s where he sentence does not undermine confidence be, should and we you have never asked Thus, the outcome.15 the sentencing trial compromise that fact one iota. Ron was not fundamentally unfair. Spivey is under a life sentence from IX, Macon. He’s under a 20-year sentence Claim argues that the prosecutor from Macon. You also returned a verdict misled the about meaning night, consequence last and whether it had of a verdict been guilty but ill, mentally ill. guilty guilty During or mentally he would prosecutor’s closing argument, the follow be under life years sentences and 20 ing transpired: Judge ten.... impose will those sentences on Spivey. Ron This man will And let me make posi- [Prosecutor]: jail, never be out of Judge and the will tion of the State of Georgia, whom I you instruct that life imprisonment represent, clear in this case from this this case jail means to remain in for the moment forward. And that is this. The remainder of his life. And I wouldn’t verdict guilty of but ill mentally is the you day ask for one less. same a guilty as not verdict. On behalf of these victims—. Trans, Furthermore, Tr. at 2488. he em- phasized ever, Spivey that “Ron will never [Defense [objecting] Counsel]: Your Hon- ever be anyplace other than peni- the state or, that’s a misstatement of the law and tentiary. ... He’s going never to be re- jury. misleads the And I never inter- leased” and that “We’re not asking rupt that during closing but, a argument, Spivey complains argument also Spivey's prior that this County Bibb conviction and fundamentally sentence, renders the trial unfair be- we are jury's satisfied that the deci- cause, out, prior as it turns the murder con- fact, sion would have been the same. In County viction in Bibb was set aside because cross-examining Spivey, prosecutor when the acquired it relied on evidence of violation essentially provided an account of convic- Spivey’s rights. disagree. constitutional We by asking tion's Spivey status if was "aware We do not believe the result here would have that same [prior witnesses testified in that did, arguing been if different instead of as he County] Bibb case that testified in the first prosecutor argument along had made an Muscogee trial here County] prior [in [the following already lines: has been County subject Bibb being conviction is] imprisonment; convicted and sentenced to life very overturned for the same reasons [for true, might argue ap- that collateral prior Muscogee which County conviction peals County of the Bibb conviction are avail- was overturned]?” Tr. Trans. 1804. More- might able and set that aside conviction and over, evidence, light Spivey's of all the but, trial; order a new even if that should egregious history, criminal and the fact that happen, Spivey likely would be reconvicted only theory real defense to avoid the death again imprisonment sentenced to life as evidence, sentence was mental health which he has testified to this that even he be- jury obviously rejected, any we doubt in "100-percent lieves he guilty everything of jury imposed event that they say I have death sen- County, done” in Bibb Tr. Trans. egre- and he tence because of the fact has admitted an technical that he words, gious history. already criminal prior In other if the had a life sentence. prosecutor given completely had a precise accurate and account of the status 7-131).16 during this Honor, The misstatement is a misstatement

Your is exacerbated somewhat be- exchange the law. prefaced by prosecutor’s cause it is give the law. will The Court: waving of the “cloak of deliberate state Drake, authority.” 762 F.2d at 1459. However, interpre- find that this literal we victims, eyes In the these [Prosecutor]: tation-i.e., guilty that a verdict of but men- are jury, they I submit members of the tally guilty ill is no from a not different and the same. Of synonymous, one outrageously so incredible and verdict-is course, Of they’re separate verdicts. contrary to common sense that it could not You’re to be they going course are. way jury interpreted prose- be the verdicts. And given potential four cutor’s statements. eyes prose- in the of the you, submit to victims, eyes and the cution Instead, jury’s we conclude they’re one and the same. prosecutor’s of the probable interpretation Tr. 2268-69. Trans. is: a verdict of argument remarks and if the guilty should be returned because remarks literally, prosecutor’s Taken mental- guilty returns a verdict of but incorrectly state that exchange in this ill, penalty longer the death is no ly then mentally equiva- ill is guilty but verdict only will re- sentencing option imply verdict and guilty lent to a not imprisonment. interpreta- This ceive life ill guilty mentally but verdict returning tion is consistent with the defense’s own a not sentencing in the same as will result strategy admitted position. i.e., fact, verdict, no sentence. guilty state, alleged by to concede the facts provided law at the time that, to an emotional distur- argue but due guilty is found a defendant “[w]henever testimony of two explained by as bance felony, ill of a or mentally at the time witnesses, him jury the should find expert accepted that to that effect is plea enters mentally impose ill and a life guilty but court, him court shall sentence by the the the trial did during Nowhere sentence. found in the same manner as defendant any- argue that should receive Laws guilty of the offense.” 1982 Ga. sentence, (codified and thus he § than a life thing Ann. 17- less 1481 Ga.Code consequences charge there was no need to responded to the defense 16. The trial court objection promise insanity "The guilty by counsel's with the of not reason of a verdict Ordinarily "giv- give the law.’1 the Court will dealing provisions of the law “because the ing by trial court curative instructions the disposition of case after the find- with the the improper may remedy comments.” effects insanity ing guilty reason of have no of not here, Brooks, although Yet 762 F.2d at 1400. bearing upon guilt of the the or innocence legal jury court did instruct the on the defendant”). Interestingly, the trial the after illness, insanity and mental definitions of court never clarified that guilty mentally § legislature 17-7-131 of Georgia amended a defendant found require following the code in 1985 the same but ill is sentenced in insanity is the defense of instruction when guilty. The as a defendant found manner consequences clarify the of a interposed to omission, however, is understandable court’s mentally guilty but ill: verdict of law, Spivey was not because under regarding the con- entitled to instructions you defen- charge you should find the sequences sentencing options associated guilty mentally ill at the time of the dant crime, but mentally guilty ill verdict. See with a but given will be over the defendant State, Ga.App. 369 Cranford Department Rehabilitation of Offender (1988) (“[Defendant] was not S.E.2d Resources, as Department of Human or the sentencing op- entitled to an instruction on may defendant condition of the mental ill], guilty mentally but [of tions of that verdict warrant. bearing guilt have no on his or as that would State, innocence.”); Cooper Ga. 1985 Ga. Laws cf. (1985) (holding S.E.2d 137 effectively guilty verdict, conceded a verdict of meaningless or that the differ- mentally- but ill would in a result life sen- ence between a guilty verdict and a tence, at In his closing argument, least. verdict guilty but mentally ill is in- added, prosecutor “What the defense consequential. you asking to do is to find him guilty but added). Id. at 863 n. (emphasis This mentally ill and him hospital send to a comment, dicta, albeit signals that there sick, because instead of he’s where he be- must be a meaningful, consequential differ- longs and where the second phase of this ence guilty between the verdict and the trial will concern itself with.” Tr. Trans. guilty but mentally ill verdict. The court phase, 2285. The second say, needless to suggests implicitly that this difference was to concern itself with the central issue: might be that permits former society should execute or him put death penalty while the precludes latter it. words, prison life. In other is death row where belongs? Within the In response decision, Spraggins context of the trial and closing argu- Georgia legislature amended the code sides, ments of both probably in 1988 putting present its form. See interpreted prosecutor’s remarks to 1988 Ga. Laws 1003-1010. The amend- mean that if guilty the verdict is but men- ment guilty added a mentally but retarded ill, tally then Spivey longer is no eligible verdict to the verdict of guilty but mental- penalty. for the death ly ill and provided that both guilty but mentally ill and guilty mentally retard- The question still remains of whether ed defendants are sentenced the same as prosecutor’s remarks so interpreted- guilty those found of the except offense guilty that a but mentally ill pre- verdict those found guilty but mentally re- cludes the death penalty-are incorrect or tarded not eligible are for the death penal- misleading. issue, Complicating the ty. See 7—131(b), § Ga.Code Ann. (g), 17— Georgia Supreme Court has not answered (j); generally Emanuel, see Anne S. Guilty question. language of the stat- Mentally But III and the Death Penalty: ute, that a defendant guilty found but men- Eighth An Analysis, Amendment 68 N.C. ill tally is sentenced “in the same manner (1989) L.Rev. (arguing that aas defendant found guilty,” indicates that amendment is an indication that the legis- guilty defendant, but mentally ill lature intended to allow the penalty death defendant, same a guilty as can be sen- defendants). for guilty but mentally ill tenced to death. 1982 Ga. Laws. legislative This action could interpreted be (codified § Ga.Code. Ann. 17-7- as a legislature’s clarification of the origi- Yet, 131(g)). State, in Spraggins v. nal intent for guilty the but ill mentally (1988), Ga. 364 S.E.2d 861 Supreme the verdict, i.e., that those receiving this ver- Georgia, Court of while leaving open the dict, mentally individuals, unlike retarded question of whether a defendant found can hand, be executed. On the other the guilty mentally but ill capital for a crime 1988 amendment could be a change in the executed, can be commented: law and irrelevant to the state of the law in yet We have not resolved question the of 1983when this case was tried. whether a defendant to guilty found be mentally

but ill eligible is for a We need not death resolve this issue of Geor- sentence, in light gia of the law statutory provi- Spivey’s because claim fails wheth- concerning verdict, sions such a er or but we not a defendant guilty found but today, event, need not do so any mentally for in ill could been have executed un- we are prepared to the der Georgia hold law as it existed at the rele- n legislature time, this state has First, created vant i.e. 1983. if Georgia Mississippi XI: E. Claim Johnson for a de- penalty death the precluded law ill, mentally then Claim guilty but found fendant correctly stated remarks prosecutor’s the XI that argues in Claim of these re- consideration Upon law. the fundamentally unfair sentence is his death the marks, rejected jury could have process Eighth due and the and violates mentally preserve verdict but ill guilty it is based on his Amendment because penalty. the death option its recommend unconstitutionally prior conviction obtained and consid- option Having preserved this In County.18 life sentence Bibb sentencing phase, at the ered the evidence 578, 581, Mississippi, Johnson option ultimately exercised jury (1988), 108 S.Ct. penalty. death On and recommended had sentenced defendant John state court hand, permitted if law the other citing previous New York son to death found a defendant penalty the death aggrava of three ill, felony conviction as one prosecu- mentally then but guilty of the The misstatement the sentence. argument ting supporting was a factors tor’s However, no has suffered law. introduced no evidence about prosecution misstate- prosecutor’s despite harm convic underlying prior conduct may have relied jury the law. ment of tion, authen single on a but relied instead prosecutor’s misstatement upon indicating the copy of a ticated document ill mentally verdict rejected guilty but 1981. id. at conviction. See but ulti- sentencing options, its preserve Thus, on the sentence relied the death sentencing mately phase at the the New conviction. After mere fact of on the penalty recommended death the con Appeals reversed York Court pre- have been as would same evidence viction, de Mississippi Supreme Court a verdict of had the returned sented relief even post nied Johnson conviction words, if In mentally ill. other guilty but was now on conviction though the relied prosecution’s argu- jury accepted the 1981. id. at invalid. See mentally guilty but rejected ment and re Supreme States The United Spivey should thought ill because it verdict allowing the death and held that versed then that the death penalty, receive part although based to stand sentence not in was powerful evidence that Eighth violates reversed conviction on a a life sentence. to return any going event 586, 108 id. at principles. See Amendment remarks the prosecutor’s or without With S.Ct. verdict, ill mentally guilty on the the outcome is that probability reasonable Johnson, here there contrast same, namely the going to be the the conduct under is extensive evidence penalty. death We conclude conviction, much of lying County the Bibb fair, despite the fundamentally trial was of its part as introduced the defense prosecutor misstated possibility conduct, even ab strategy. Criminal trial the dis- we affirm Accordingly, the law.17 conviction, properly is relevant and IX. sent respect to Claim trict court Moreover, suggest no there is evidence guilty but men- been found If had 17. ill, been denied guilty, psychiatric law would have tally needs instead further evalu- provided that shall be any respect. have "he in treated, the limits of within ated and then therefor, in such appropriated state funds XI, we disposition Claim light In for his psychiatrically indicated as is manner arguments based not address the need state’s 1476, Ga. Laws illness.” 1982 mental Lane, Teaguev. 489 default and procedural on (codified § 17-7- Ann. at Ga.Code 1485 131(g)). Spivey 1060, 288, 334 103 L.Ed.2d U.S. argue do we not nor does (1989) (barring application retroactive to funda- this difference amounts believe that rules). "new” these circumstances. unfairness under mental 1282 Cir.1993) by jury.

considered See Tucker v. (adopting Brecht harmless error (11th Cir.1985) 1480, Kemp, 762 F.2d 1487 standard for Johnson v. Mississippi (en banc) (“In previous addition to convic- review). Brecht, on claims habeas In tions, it acceptable to consider evidence Court stated the proper harmless error of crimes for which a defendant has been standard for trial errors on habeas review: indicted but not Activities convicted. for [WJhether the had error substantial and which there has been no charge filed can injurious effect or influence determin- be considered as In general, well. ing jury’s verdict. Under this stan- reliable.”) inquiry relevant is whether it is dard, petitioners may habeas ple- obtain (citations omitted), vacated, 1001, nary review of their constitutional 517, (1985), rein- claims, they are not entitled to habe- stated, (11th Cir.1986) (en 802 F.2d 1293 as relief based on trial error unless they banc) curiam). Thus, (per question can establish that it resulted in actual here is not what effect the introduction of prejudice. evidence regarding County Bibb trial, crimes had on the but rather what 637, 407 U.S. at 92 (quotation S.Ct. 2219 marginal impact the fact of conviction and omitted). marks and citations Given the life sentence had above beyond slight marginal impact, we conclude that impact that the criminal conduct had on although the trial court erred in using the Johnson, the outcome. See Richardson v. vacated Bibb County conviction and sen- (11th 1536, Cir.1989) (“Even 864 F.2d 1541 tence, the error was harmless because the sentencing judge rely if could not on effect was injuri- neither substantial nor these North Carolina convictions because ous.19 Accordingly, we affirm the district they were obtained, unconstitutionally evi- court with respect to Claim XI. dence of Richardson’s past criminal ‘activi- ty’ would have been admissible if the sen- F. Claims XII Brady & XVIII: v. Ma- tencing judge had found such information ryland Claims

reliable.”). We find marginal that the im- pact of the conviction and claims that the prosecu life sentence was slight in tor light of extensive withheld unconstitutionally evidence three docu and brutal nature of the actual ments contained underlying favorable evidence to 1) conduct. the defense: Mary Jane Davidson’s De 29, 2) cember 1976 police, statement to the 28, the December Supreme Supplemental 1976 Court’s Re decision Abrahamson, port Brecht v. Columbus Department U.S. Police De Matthews, 3) S.Ct. (1993), 123 L.Ed.2d tective guides R.G. a letter of us in determining September or whether 1983 from the district attor slight impact is harmless error. ney See Duest to Central Hospital.20 State Brady In (11th v. Singletary, 997 F.2d Maryland, U.S. S.Ct. 19. See also note supra. grounds for relief petitioner be raised original petition or amended and man- 20. The state Spivey’s Brady contends that any grounds dates that not so raised are claims procedurally are defaulted. waived “unless the Constitution of the United did not raise them his first state habeas States or of requires this state otherwise or petition. Spivey acquired After any docu- judge petition unless to whom the is as- ments in through Georgia’s Open signed, considering subsequent petition, Act, Brady Records grounds raised claims with finds asserted relief therein which respect to these three documents for the reasonably first could not have been raised in the time in his petition. second original state petition.” or amended The second 1995, the state court dismissed the second state suppression habeas court found no of petition finding it successive under exculpatory Ga.Code evidence meaning within the 9-14-51, § Ann. 4, which Brady. mandates that all Resp See exh. vol. 3 ex L. him, any cop got kill that near that (1963), ed to 1194, Supreme 10 L.Ed.2d him he by they’d never take alive” because suppression held that “the Court police to an to shoot it out with the favorable intended of evidence prosecution process ago due wife had left him four months request violates that “his upon accused daughter.” material either to not let him see his is and would the evidence where of the irrespective of the punishment, gave She also said he her back some guilt or To estab- prosecution.” money Spivey argues faith of the he stole from her. good violation, prove: must him Brady lish a that this evidence is favorable to be- 1) evidence government possessed attempted that to show he cause his defense 2) defense, that the defen- to the favorable irrational and acted out of an self-destruc- the evidence and possess did not dant impulse tive and because it refutes reasonable any it with could not obtain pitiless assertions that he was state’s 3) sup- prosecution diligence, remorse. without 4) evidence, that a reason- pressed with to this docu- Spivey’s respect claim that the outcome of exists probability able 1) fails, however, two reasons: he ment for would have been different proceeding have obtained it with reasonable dili- could disclosed to the the evidence been had 2) ex- probability no reasonable gence Singletary, 967 Duest v. defense. See outcome would have been ists (11th Cir.1992), 472, vacated and F.2d had the evidence been disclosed. different 1940, remanded, 507 U.S. First, transcript, a of the 1977 trial review in relevant reinstated 123 L.Ed.2d trial with reason- which the 1983 counsel Cir.1993). (11th 997 F.2d fart, reviewed, have reveals diligence able could and some of the existence of the statement document, Davidson’s In the first the cross- beginning its contents. Before statement, a number of reported she trial, of Davidson at the examination construed as favorable things that could be requested previously counsel defense a that he had to the defendant. She said and the statement of the witness written eyes (meaning in his expression “Manic the de- responded, “we’ve let prosecution manic) in that psycological term [sic] already, we the statement twice fense see contact, direct visual he would not make letting again, them see it how- don’t mind eyes.” wavering expression a ever, to it until he’s entitled don’t think explained that “He that he reported She witness, to cross-examine he starts of ammunition and he had 75 rounds Tr. Trans. that.” 1977 glad we’ll be to do and at every to use one of them intended fact, did have In counsel 382-83. defense best, day to live. He intend- only had Zant, duty to dis- cutor violated close, constitutional Ga. 301 S.E.2d Smith v. (1983), Supreme because review is not barred so federal of his suc- question a lower court's dismissal reversed court decided this the second habeas § petition Oklahoma, 9-14-51 cessive state habeas grounds erroneously. Ake v. See prosecution that where "the and held (1985) duty to reveal at trial has the constitutional ("[W]hen procedural resolution of state testimony given its has been that false question depends on a federal constitu- law cannot, witness, duty, by failing shift in this prong ruling, the state-law tional misrepresentation to discover the the burden independent of federal holding court’s Spivey argues to the defense.” after trial law, precluded.”). jurisdiction is not and our prosecutor vio- indicates that where Smith attempt this state law to resolve Rather than disclose, duty to a constitutional lates arguendo that there is no question, we assume by § procedurally barred 9- defendant is not bar, procedural address the merits reasonably have he could not 14-51 because claims, and, Brady the reasons stated concludes, Thus, Spivey it earlier. raised text, Brady violation. find no requires Georgia procedural default law here constitu- of the antecedent the consideration i.e., prose- Brady question, whether the tional the document in hand while cross-examin- minimal, would have had a any, if impact ing See Tr. Trans. 1707-12. questions Davidson and asked on the outcome. even statement, upon based exclusion from example, for consideration of the fact that Spivey you gave her back some of appearance] “Did [his describe as a money he also has negligible stole expression?”21 manic Since should impact and does not undermine confidence have known about the document and even in the outcome. contents, some of its he should have ob- tained the a specific evidence request document, The second the Mat and, failed, for this statement if that Report, thews contains statements of both request to the court for an pro- order to Davidson and In Spivey. report, his De specific duce this statement. tective Matthews recorded that Davidson Second, even had defense had this state- said that on several occasions trial, ment and been able to use it at either himself, talked killing that he tried to directly or its cross-examination of give her gun but she refused out of Davidson, there is no probabili- reasonable fear, and that he offered to let her out of ty that would outcome be different. the car at point, one but she was afraid Her comment about the manic expression that he would if shoot her she did. The provides little more understanding Spi- report also indicates: vey’s mental light state in of the violent [Spivey] stated he very sorry outburst followed. The comment for what had happened past having only about day more one to live and hours. He stated that he sorry felt for being taken when alive considered in policeman dead family, and his the context plan of his to shoot it out with that it was too sorry. late feel He the police also adds little to the defense’s stated that nightmare had been a mental trial, illness claim. At the 1983 happened. since “it” Spivey would Davidson testified that “He told me that make no further statements. he had people killed five that day, and he Resp. Ex. part statements, of 4. These put gun me, me, back on touching especially those of Spivey, favor the de- said, ‘One more make any doesn’t differ- fense’s mental strategy, illness though ence.’ He told me if police came they suggest regret more than remorse. up that I get would it first and then he’d Trans, battle it out with the Tr. police.” Nonetheless, even if the defense had had 1385. Given Spivey’s testimony extensive document, there is no reasonable about his marriage’s collapse shortly be- probability of a different outcome.22 The fore the offense and how he could not see remark about feeling sorry for police- daughter, his the fact that Davidson re- man family and his add little to ported he told her about his wife leaving claims of remorse.23 The remark about him and not being able to see daughter Spivey’s talk of suicide would have added addition, 21. Response the State's to a Mo- Report Matthews are found in the 1977 Discovery tion for June dated 1977 indi- transcript though, trial statement, unlike Davidson's cates that "orally defendant stated to explicit there is mention no of the Davidson, Mary this,' Jane sorry 1 am about Report Matthews in the record. " at the time of his arrest” and 'I am not ” 23.There testimony Spi- was extensive about proud charges against made me.’ vey's remorse since committed the crime. This evidence was available to the defense himself, sorry when asked if he felt stronger and was a indication of remorse done, answered, what he had "More than I Spivey showed Davidson. could ever tell in a million lifetimes.” Tr. Spivey may also fail the reasonable dili- Trans. 2375. experiences Based on their gence prong on this claim ministering McGraw, because some of prison, to Spivey in Rev. Stan apparently statements which derive Episcopal from priest, an and Rev. Ben- had these three docu- outcome evi- different to the considerable only marginally and, ac- Spivey ments been available re- illness that mental of dence court with the district cordingly, affirm and phase guilt-innocence in the jected XII & XVIII. to Claims respect the trial. phase of sentencing document, the letter third CONCLUSION IV. State attorney to Central from the district to the sent materials above, Hospital, lists no we find stated For the reasons of examination upcoming for its hospital warranting error federal or constitutional Report including the Matthews Spivey, Accordingly, Spi- corpus relief.24 Assuming statement. and Davidson’s of court’s denial appeal of the district vey’s is excul in this document contained corpus the list of habeas writ petition his for no reason evidence, is still there patory district court affirmed. denied and the had outcome a different of probability able AFFIRMED. if Presumably this document. had ac letter, have he could Spivey had BARKETT, concurring in Judge, Circuit David report and the Matthews

quired dissenting part: However, part and for the reasons son’s statement. above, was statement Davidson’s stated with majority’s judgment concur in I him and readily available otherwise of its conclusion exception probability reasonable

there is no subsequently jury’s Spivey’s reliance the out affect documents would these two sen- County conviction and Bibb vacated may have of the letter come. Possession Mississip- of Johnson tence violation asserts, a cross- allowed, better as I believe error. pi was a harmless Jacobs, the state’s wit Dr. of examination vacated Spivey’s of jury’s consideration Hospital, but State ness from Central sentence, with life combined conviction and in the improvement marginal again the during closing comments prosecutor’s rea produce a does not cross-examination Eighth to meet arguments, fails outcome. of a different probability sonable for relia- “heightened ‘need Amendment’s Furthermore, op had the defense counsel that death is in the determination bility Dr. Jacobs cross-examine portunity Caldwell punishment.’” appropriate evaluating he used about the material 340, Mississippi, Spivey. (1985) (quoting 86 L.Ed.2d Carolina, U.S. v. North record, find Woodson we Having reviewed (1976) 49 L.Ed.2d probability no reasonable that there is family's life his Sims, victim’s quality of the bishop, testified Episcopal also an nett revenge injected im- sincerity Spi- great extent and assumed desire about jury’s 2410-11. decision- Tr. into the vey’s proper See Trans. remorse. considerations prosecu- (arguing the making process), XVI warrant remaining do not Spivey's claims other com- closing arguments contained tor’s ments, discussion. do not warrant habeas relief improper references particular court we affirm the district Accordingly, prosecutor's ex- responsibility, the jury’s psy- (arguing his respect to XIII Claims at- opinions, defendant’s pertise and by the uncon- was tainted chiatric evaluation unfairly prejudiced experts, which torney and evaluation), (relating to XIV stitutional 1977 ad- (arguing selective that the Spivey), XVII to the admission State’s use of testimony by portions of former mission activity with of his arresting sexual officer (arguing improper), XXII Spivey’s ex-wife testimony at impeach Spivey’s Davidson to counsel), and of trial ineffective assistance the events had no recollection trial that he appel- (arguing ineffective assistance XXIII (arguing that the spree), XV during crime counsel). late phases closing arguments at both prosecutor’s about comments of the trial contained Thus, (plurality opinion)). ror, believe we must find prejudice. actual Actual is entitled to a new sentencing proceeding. prejudice exists where the error “‘had injurious substantial and effect or influ- Johnson v. Mississippi 486 U.S. ” ence in determining the jury’s verdict.’ 1981, 100 (1988), 108 S.Ct. L.Ed.2d 575 the Abrahamson, Brecht v. 619, 637, 507 U.S. jury found three aggravating circum 1710, 113 (1993) S.Ct. stances when sentencing Johnson for the (quoting States, Kotteakos v. United 328 murder of a Mississippi highway patrol 750, 776, 1239, U.S. 66 S.Ct. 90 L.Ed. 1557 man, one of which was that Johnson had (1946)). In Duest v. Singletary, 997 F.2d “previously been convicted of a felony in (11th Cir.1993), 1336 Court, this in consid- volving the use or threat violence to the ering whether habeas relief was warranted person 581, of another.” Id. at 108 S.Ct. where jury “the had based its recommen- 1981. During sentencing, prosecutor the dation of upon death consideration of a repeatedly prior referred this conviction prior criminal conviction which was later in urging jury the to sentence Johnson to vacated,” 1336, id. at determined that the jury death. The did so. Although John appropriate question was whether the prior son’s vacated, conviction was later jury’s consideration of the defendant’s va- the Mississippi Supreme Court nonethe cated criminal conviction for armed assault less affirmed death Johnson’s sentence de with intent to murder “substantially influ- spite jury’s consideration of the invalid verdict, or, least, ence[d] grave [if] a conviction. Noting both “special ‘need doubt exist[ed] as to whether did.” Id. reliability in the determination that (internal at 1339 quotation marks omit- death is the appropriate punishment’ in ted).1 We found that preju- Duest was any case,” capital 584, id. at 108 S.Ct. 1981 by diced evidence of his earlier conviction (quoting Florida, Gardner v. 349, 430 U.S. because “Duest’s sentencing jury per- was 363-64, 1197, 97 S.Ct. 51 L.Ed.2d 393 mitted to consider evidence that was mate- (1977)), and “possibility that the jury’s rially inaccurate.” Id. that petitioner belief had been convicted of I do not believe the majority fairly ana- prior felony a would be ‘decisive’ lyzes question prejudice whether ‘choicebetween a life sentence and death occurred this case. The majority as- sentence’,” id.' at (quot- S.Ct. 1981 first, sumes the answer by positing the ing Gardner, 430 U.S. at 97 S.Ct. question in terms of whether the “margin- 1197), the United States Supreme Court al” impact of the prejudicial conviction is vacated the death sentence and remanded next, by asserting without analysis for re-sentencing. The Court held that that the impact of this additional evidence the sentence of death was inconsistent “slight”. was Evidence of prior convic- Eighth prohibition Amendment’s may tion well slight have a impact in a against cruel punishment and unusual be- given However, case. our responsibility is cause “the was allowed to consider to examine the circumstance case to evidence that has been to. be revealed ma- first, determine how the of Spi- evidence terially inaccurate.” Id. at vey’s prior conviction and sentence was presented to jury, second, in light

As the majority noted, has in order to of that presentation, what impact that in- grant habeas relief based on this trial er- formation may have had on jury’s rec- previously 1. We had 1992). vacated Duest’s sentence judgment That vacated under the then-prevailing Supreme harmless error Court remanded for reconsider- standard Chapman California, light U.S. ation in of Brecht. Singletary See (1967). Duest, S.Ct. 17 L.Ed.2d See Singletary, (11th Duest v. 967 F.2d (1993). Cir. L.Ed.2d 647 you give him life on first sen- murder reversing the death ommendation. second, appropriate punish- is that Johnson, Supreme tence in ment? found that Trans.2462-63). (Tr. closing argu- In his urged repeatedly prosecutor

[t]he sentencing hearing weight during ment conviction] give prior [the urged impose prosecutor again assigned task of with its in connection exist- because of a death sentence mitigat- aggravating and balancing the life conviction and sentence: ing without Even ing circumstances. pos- there be argument, would express argu- compelling will make a Counsel peti- jury’s belief that sibility But is imprisonment.... ment for life a prior been convicted of tioner had you appropriate punishment that when “choice “decisive” the would be felony has the Macon case where he consider a death a life sentence and between Why do we a life sentence? already got sentence.” trying the effort of go through even a life already got has case when Johnson, 108 S.Ct. 1981 that with- happened on a crime sentence omitted). (citations and As Johnson Well, you hours of this? in two or three this case Duest, question in there is no will answer that for us. directly and was jury’s attention that the conviction prior to the emphatically drawn (Tr. Trans.2467). from separate apart sentence and life that the majority recognizes “[a]t prosecutor conduct. The underlying faced cen- sentencing stage, jury Spi- jury to sentence urged repeatedly Spi- of whether to sentence question tral death, precisely be- that

vey arguing imprisonment.” or to life vey to death and life conviction previous cause of because the here prejudiced was mean- sentence, a life sentence would be a a false jury with presented prosecutor in this case: punishment ingless impos- imposing death choice between among all Number Exhibit State’s jury only did the Not ing punishment. no have to out you go that the exhibits has since been conviction that consider a Indictment, guilty, a verdict you anis vacated, presented the prosecutor but the imprisonment life sentence to factor simply not as a life sentence vacated County, in Bibb Geor- the defendant as the decisive factor but to consider impris- of life your verdict gia_ So a death to recommend jury urging day punish- not add one will ignore govern- onment One cannot sentence. in mind. assume, man. Bear that to this jury ment to the argument ment’s not a to, if that is that in mind. And majority appears Bear as I believe wrist, to be and I don’t want slap on the occurred prior killing on because on the slap like a have recom- by using juror terms no would flip night, same not what is task is if is not that then Our mended a life sentence.2 wrist lives, we merely because literally It two a sentence uphold it? is it? is What we had imposed of one that sentence price might have human lives for two Rather,, pro- duty our jurors. If has life. been only one person because he is to which to the defendant on vide imprisonment life sentenced to he is impose a penalty, trial court must Duest, even death if one 997 F.2d at 2. As in v. imprisonment. See Hill sentence life juror who recommended death sentence of existing State, substantially influenced 301 S.E.2d Ga. sentence, State, be- relief is warranted (1983); Ga. life Romine law, sentencing if the (1986). cause under S.E.2d 446 unanimously recommend does peers entitled —a Johnny Reynolds, who had true individually and on and accurate information which to base representa- behalf himself and as impose their decision to a life or a death tive of a employees class of black sentence. The circumstances in this case Highway Department, State of sufficiently raise a grave my doubt in mind Alabama, similarly situated, Plaintiff- jury’s consideration of Spivey’s Appellee, vacated conviction and life sentence sub- stantially the sentence influenced of death. Parker; Johnson, Cecil al., Robert et Duest, Therefore,

See 997 F.2d at 1339. Intervenors-Plaintiffs-Appellees, believe the penalty death imposed is con- stitutionally impermissible under Johnson Adams, Cheryl Caine, William et and a new impaneled should be al., Intervenors-Plaintiffs- consider appropriate punishment Appellants, based on accurate information. Roberts,

G.M. capacity his official as Director for the Department Alabama Transportation, al., et Defendants- Appellees. 97-6347,

Nos. 98-6192. United States Court of Appeals, Eleventh Circuit. March Johnny REYNOLDS, individually on be

half representative of himself and as employees class of black of the

Highway Department, State Ala

bama, similarly situated, Plaintiff-Ap

pellee, Parker,

Cecil Johnson, Robert et

al., Intervenors-Plaintiffs-

Appellees, Campbell Wilson,

C. Intervenor-

Plaintiff, Adams, Cheryl

William Caine, et

al., Intervenors-Plaintiffs-

Appellants, ROBERTS, capacity

G.M. in his official

as Director Depart- for the Alabama

ment Transportation, al., et Defen-

dants.

Case Details

Case Name: Spivey v. Turpin

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 28, 2000

Citation: 207 F.3d 1263

Docket Number: 98-8288

Court Abbreviation: 11th Cir.