William Alvin Smith, Cross-Appellee v. Walter Zant, Warden, Georgia Diagnostic and Classification Center, Cross-Appellant

trаnscripts go into allowing no error room.” Id. 392. jury case, questioned Reed has not

In this Further, transcripts. Reed

accuracy of the only general claim that he

has asserted jury’s alleged prejudiced by the use transcripts. that the trial We conclude Appellant’s denying not err in

court did trial on

motion for a mistrial or new

ground.

CONCLUSION AF-

The conviction of Thomas Reed is

FIRMED. SMITH, Alvin

William

Petitioner-Appellant,

Cross-Appellee, ZANT, Warden, Georgia Diagnos

Walter Center,

tic and Classification

Respondent-Appellee, Cross-Appellant.

No. 88-8436. Appeals,

United States Court

Eleventh Circuit.

Sept. 4,1989. Rehearing Denied Dec. Glickman, Auckerman, Stephen Spae- H.

der, Goldstein, Kolker, Taylor Washing- & ton, D.C., Atlanta, Ga., Bright, Stephen B. petitioner-appellant, cross-appellee. for Dunn, Gen., Atty. Dennis R. Asst. Atlan- ta, Ga., cross-ap- respondent-appellee, pellant. RONEY, Judge,

Before Chief TJOFLAT, HILL, FAY, VANCE, JOHNSON, HATCHETT, KRAVITCH, ANDERSON, CLARK, EDMONDSON, COX, Judges. Circuit being v. panel opinion vacated. Smith BY THE COURT: Cir.1989). (11th Zant, 873 F.2d 253 Smith, Georgia prisoner, Alvin William court are judges of the banc robbery The of armed and malice was convicted disposition of equally proper on the divided robbery murder in connection with Therefore, the order of the dis this case. killing grocery of a store and of the owner as a matter trict court AFFIRMED sentenced service station. Smith was Britt, 839 F.2d 1499 law. Reshard v. murder, See offense of and un death for the (in banc); (11th Cir.1988) Henderson v. Georgia successfully appealed to the Su Dist., F.2d Indep. 584 Fort Worth School 228, State, preme 249 Ga. Court. Smith denied, (5th Cir.1978) (in banc), cert. 115 43, denied, 882, 290 cert. 459 U.S. S.E.2d 906, 1996, 60 L.Ed.2d 375 99 S.Ct. (1982). 182, 74 148 He L.Ed.2d (1979). post-conviction relief from was also denied Georgia state courts. v. Fran Smith cis, 782, 362, 325 253 Ga. S.E.2d cert. de TJOFLAT, Judge, specially Circuit nied, 474 88 U.S. concurring: (1985). L.Ed.2d 266 today equally The divided en banc court petition then filed a for habeas Smith judgment, affirms the district court’s see corpus in the United States District Court ante, by operation of law. See Reshard v. Georgia. for the Middle District of The Britt, (11th Cir.1988) (en 839 F.2d 1499 court, essentially on undis- based banc); Indep. Henderson v. Fort Worth puted testimony re- about Smith’s mental Dist., (5th Cir.1978) 584 F.2d 115 School tardation, found that Smith did not know- (en banc), denied, cert. intelligently ingly and waive his Miranda (1979).1 On the rights. The court held that introduc- merits, judges six affirm the is would tion of Smith’s confession was harmless corpus suance of the writ of habeas conviction, error as to his but that it was petitioner’s respect to death sentence but not harmless as to his death sentence. Ac- would reverse district court’s refusal cordingly, granted court Smith a writ petitioner’s set aside conviction. The other sentence, corpus habeas as the death included, judges, myself six affirm petition but denied Smith’s as to the convic- peti the district court’s refusal to set aside Kemp, F.Supp. tion. Smith v. tioner’s conviction but would reverse (M.D.Ga.1987). appealed Smith from the grant district court’s of the writ with re conviction, corpus denial of habeas as to his spect death sentence. cross-appealed and the Stаte from the separately I I am write because troubled grant of the writ as to sentence. Smith’s aspects dispo- two of the district court’s panel ap- A of this Court dismissed the first, sition of this case: its decision on the peal jurisdiction. for lack of Smith merits of claim that the trial (11th Cir.1988). Kemp, 849 F.2d 481 admitting erred his confession into parties sought, then and the district court trial; second, certifying evidence at its as granted, certification under Fed.R.Civ.P. judgment final a than all of based fewer 54(b). A panel of this court then heard the part In I numerous claims. appeal and affirmed district court’s or- concurrence, special I briefly review granted der to the extent that it the writ of procedural history part case. corpus sentence, habeas as to Smith’s II, I demonstrate that the district court’s reversed the denial of the writ as to grant of the writ was incorrect on the Zant, Smith’s convictions. Smith v. fallacy merits. Part III concerns the (11th Cir.1988). F.2d 712 resolving The Court took corpus a habeas case on the basis banc, claim, this case in single judicial which resulted of a in the name of Prichard, City 1. In Bonner v. prior the former Fifth Circuit handed down (en Cir.1981) banc), this court October adopted binding precedent all decisions of grant decided to has which the unre- claims leaving other economy, while his waiv concerns [petition] Smith’s solved. v. Arizona.” under er of I. omitted). After the (citation Id. decision, its handed down district court Smith, was con Petitioner, Alvin William to alter the court requested State Oglethorpe Court Superior victed peti and to address judgment robbery its and amend armed Georgia, of County, of in the interest remaining claims sentenced death tioner’s was and malice murder finality. The district appeal, economy On direct and judicial latter offense. for the declined, stating affirmed. that determination Supreme Court Georgia court the 43, 228, 290 S.E.2d State, might 249 remaining Ga. claims never v. Smith 182, 882, 74 denied, be bet economy judicial cert. required, so unsuccess (1982). Petitioner 148 L.Ed.2d until such reserving decision ter served in corpus relief the sought habeas fully filed a then necessary. The State time Francis, 253 Ga. v. courts. Smith state court’s the district appeal of notice denied, 474 362, U.S. cert. 325 S.E.2d corpus. habeas writ of granting the order (1985). 266 88 L.Ed.2d from the district cross-appealed Petitioner writ of habeas for a petition then filed He not entitled to ruling was that he court’s District Court States corpus in United the A respect to his conviction. relief raising Georgia, of District the Middle for appeal this court dismissed panel of as in the state claims essentially same jurisdiction. lack of cross-appeal for and seeking relief both and proceeding (11th 481, 483 F.2d Kemp, 849 Smith v. from his death conviction from his curiam). the district Cir.1988) Because (per alia, inter alleged, Petitioner sentence. all of adjudicated not court had assistance ineffective had received that he judgment claims, not a final was its order in judge erred the trial of counsel and appeal as of parties could from which at evidence into admitting (1982). Nor 1291 right 28 U.S.C. under § trial. there court had the district determined hearing, the district evidentiary delay and directed just After an reason for no should Fed.R. that the confession pursuant entry judgment, court concluded petitioner it had single admitted because count 54(b),3 not been on the Civ.P. knowingly and did Finally, jurisdiction retarded was unavail decided. rights.2 his Miranda 777 intelligently Kemp, waive of Wilson on the basis able (M.D.Ga. denied, 500 Kemp, F.Supp. Cir.1985), 476 (11th Smith cert. F.2d 621 the writ with 1987). granted court 90 L.Ed.2d 1153, 106 S.Ct. U.S. sentence, finding respect Kemp, 758 F.2d (1986), Blake v. played a might have that the confession denied, 474 Cir.), cert. peti to sentence decision jury’s (1985). role those L.Ed.2d The court 506-07. Id. at tioner to death. by the appeals cases, court entertained this conviction, from his relief petitioner denied disposi- courts’ the district because State however, admission holding that the “gave the the writs granting tive orders given the error” “harmless confession was hope to he could all petitioner relief] [the guilt. Id. at 506. overwhelming evidence Blake, F.2d litigation.” achieve cur contrast, By 525. its de- expressly based court The district only from relief obtained rent case in Petition- count contained on “one cision sought relief sentence, whereas on death ground stating that petition,” “[t]he er’s entry of a direct the opinion court [district] part II of As the discussion than clear, or more fewer judgment as to one did not state final the district court makes express only upon parties erred but focused trial or expressly all of claims validity just for confession. is no reason instead there determination for the express direction delay upon an 54(b) provides: "When more than 3. Fed.R.Civ.P. entry judgment.” action, present ... in an relief is claim one making incapable him a know- rendered his sentence and his conviction. from both the re- court did not resolve The district ing intelligent of his Miranda waiver challenged petitioner’s maining claims there- rights4 and that his confession was would, in his if resolved convictionand that invаlid, the court did not fore additional, favor, complete, him afford squarely confront the real whether issue: panel therefore dismissed the relief. The judge, committed constitutional cross-appeal, suggesting that appeal and admitting the confession into evi- error request parties the district court dence. 54(b) proper make Rule certification entry judgment direct on the “Miranda permit appeals. claim” order to A.

Smith, at 483-84. petition In his for a writ of habeas cor- request, At pus, contended that his confession Smith original granting amended its order then he the mental was invalid because lacked (and denying) corpus. the writ of habeas capacity knowing intelligent to make a and 54(b), expressly deter- Pursuant to Rule and, right if just mined no reason for of his to remain silent that there was waiver judgment delay entry and ordered of final spoke police, right to the his to have petitioner corpus granting relief during interrogation.5 present counsel sentence) respect (with to his on what it brought'this He contention to the district petitioner’s characterized as “Miranda underlying court as an element of two dis- appealed claim.” Petitioner then the dis- First, pri- tinct constitutional claims.6 and respect trict court’s denial of relief to marily, petitioner claimed that he received conviction, cross-appealed and the State his ineffective assistance counsel because grant respect from the of the writ with to attorney, moving sup- routinely to after petitioner’s panel sentence. The same that confession, press petitioner’s failed to in- prior attempted appeals refused to hear the judge petitioner’s form the about retarda- proceeded then to consider the merits of judge tion and thus to alert to the appeals. these

possibility petitioner knowingly that did not II. intelligently rights and waive his to remain present during silent and to have counsel granting merely In relief the basis petitioner’s questioning.7 attorney’s that its conclusion retardation As a result of the Arizona, 467-72, impact of his confession into and Miranda evidence its 4. 1602, 1624-26, (1966) re- on both his conviction and his sentence. quires person police custody that Petitioner also claimed fifteen other violations interrogated, he must can be be informed of his rights affecting of his constitutional ‍‌‌​‌​‌​​​‌‌​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌‍his sen- also, right tence; fifth to remain silent amendment two of these also affected his conviction. purpose protecting for the that fifth amend- See note 27. The district court did not infra right, ment of his to consult with counsel consider these claims. We do not consider during interroga- present partial judgment and to have counsel them because all that the final brings petitioner’s tion. to us is claim that trial judge admitting erred in his confession. See 5. Petitioner also asserted that the waiver was 54(b) 3). (quoted supra Fed.R.Civ.P. note involuntary; See (iv)A Psychological petition- custody incompetent lice were in each Evaluation of of following respects: performed er in determine his intel- 1974 to argue identify functioning a. Keeble even to or appropriate lectual and his edu- failed legal challenging in- the correct bases placement only cational not concluded that for (i) confession, which troduction were petitioner was ‘within the mental defective of petitioner's waiver of his constitutional that rights range intelligence,’ perti- stated in of but also appoint- to remain silent and to have an part nent as follows: attorney present during any questioning ed performance verbal William’s on the sub- given knowingly, vol- was invalid because untarily ideas, poor memory poor tests indicates intelligently; and ... judgment poor comprehension and verbal investigate validity to b. Keeble using failed from his sur- when facts obtained petitioner's waiver of his constitutional of rounding overly concrete environment and rights; and thinking limits. pretrial suppression c. at the vocabulary performance on the William’s hearing argue adduce Keeble to and/or failed perform- low subtests was also low. His readily petitioner’s available evidence men- of poor on subtest indicates familial ance tal limitations and other which under- facts background. cultural and educational waiver, validity petitioner’s mined the cluding in- ****** following facts: area was in verbal com- William’s weakest prehension, (i) hunger petitioner, in a state of and ex- reasoning. These weak- (Record night when arrested late at haustion poor nesses indicate school achievement 88, 96), immediately upon at was taken arrest and low social awareness. (Record 96) jail county to a in at another added.) (Emphasis (Record where he was held for twelve hours 90, 97), private at cell, incommunicado and in a identify expressly did not the sec- 8. Petitioner placed and then taken alone and claim as one of trial error. I bеlieve ond finally custody permitted of two officers who so, parties by failure to do both that the by him; interrogated him to eat and then court, caused the mischief in has (ii) mentally petitioner was retarded and in this case. See discussion text infra. his limitations could not because of mental of the claim is as fol- Petitioner’s statement rights understand either the he was told about lows: significance of his waiver of those or the rights; post-arrest confession was ex- Petitioner’s police during by (iii) tracted from him the custodi- petitioner’s school records reveal that valid, knowing, tested, interrogation al without a vol- grader when he was last as a ninth rights untary intelligent waiver of his to per- first March he scored present, (99 have counsel reading remain silent of 100 did better centile out trial, did) against him at percentile and was then introduced he than the second (98 did); and sen- English the result that his conviction out of 100 did better than he in violation of tence of death were obtained opined pe petitioner was in fact retarded. He responded After the State to Smith’s tition, functioning person petitioner’s inef that a denying that counsel had been intelligence difficulty would have petitioner’s fective and that waiver was level the nature of his Miranda invalid, understanding the district court convened an evi- dentiary hearing petitioner’s consequences waiving and the on ineffective slowly assistance claim. them unless those were counsel Under see claim, two-pronged explained approach painstakingly to such a to him —an issue Washington, Strickland v. Kuglar upon had not Dr. been called 687-88, 2052, 2064, during petitioner’s prose- 80 L.Ed.2d address criminal (1984), Kuglar to decide whether cution.11 Dr. court had also stated that deficient, performance by and if petitioner’s counsel’s had not been consulted at- so, prej prior performance torney suppression hearing, whether the deficient spent udiced the defendant. that he less than the usual amount of discussing time the case with defense coun- received evidence both sel, they and that had discussed the never points.9 Kuglar, Dr. Everett a board-certi- confession or the effect of re- psychiatrist, petitioner fied had examined tardation on his waiver of arraignment, pursuant his to court order, Keeble, purpose determining for the Floyd attorney, both competency to stand trial and the testified as viabil- well. He stated that the mo- ity insanity report suppress, In his peti- defense. tion to which asserted that court, Kuglar petitioner knowing Dr. had found tioner’s waiver was not or intelli- competent gent, to stand trial and had found awas standard motion that he rou- nothing suggest filed, tinely changing only was not the name of the sane at the time of the offense.10 At the accused. The motion had little to do with hearing, Kuglar specifics Dr. testified that case.12 More- Fifth, rights guaranteed Smith, Sixth and Now comes William Alvin Defen- case, Fourteenth Amendments to the United States dant in the above stated and moves this suppress Constitution. Court and all statements added.) (Emphasis made him after his arrest to law enforce- motion, support ment officers. of his Wil- 9. The district court also had before it the record liam states: corpus proceeding of the state habeas at which charged robbery 1. He is with armed petitioner essentially had raised the same claims plea guilty. murder and has entered a of not corpus petition. as in his federal habeas That State, by through 2. The the District contained, respect petitioner's record Attorney, will introduce into evidence at the claim, ineffective assistance of counsel a tran- trial, admissions, oral a written statement script evidentiary hearing, only of the at which tape recordings of a statement made and/or petitioner’s prison trial counsel and a state em- by William Alvin Smith to law enforcement testified, ployee and numerous affidavits: one custody Oglethorpe officers while in at the Kuglar, psychiatrist; from Dr. Everett a one County Jail. Fisher, psychologist; from Dr. Brad a two from 3. Those statements which incrimi- defenders; public many petitioner's from nate William Alvin Smith were the result of family acquaintances. See discussion in persistent repeated interrogations by nu- text infra. merous skillful law enforcement officers "in the absence of counsel and without an intelli- 10. See note 20. infra gent knowing or waiver counsel." Psychological ploys fatigue combined Fisher, testimony 11. The of Dr. Brad a "correc- during questioning hours of to overcome Wil- psychologist peti- tional" clinical who examined any liam Alvin Smith’s will and rendered ad- conviction, tioner after his endorsed Dr. involuntary mission and coerced in violation Kuglar’s respect petitioner's conclusions with of the Fifth and Fourteenth Amendments to impact ability retardation and its on his to make the United States Constitution. [Citations.] knowing intelligent a waiver of WHEREFORE, prays William Alvin Smith hearing for a to determine the voluntariness motion, Attorney following Keeble filed the totality of the statements in the of circum- which he admitted contained factual inaccura- validity stance and to determine regarding specifics cies case: prior interrogations. waiver of counsel MOTION TO SUPPRESS DEFENDANT'S Because the issues of voluntariness and of validity STATEMENTS of waiver of counsel will be deter- Cir.1988). dismissed, 849 F.2d 481 as- boilerplate motion although the over, did waiver, determined that invalidity The court serted intelligent argued knowing and waiver never not make a issue was the waiver that, also stated therefore inval- judge. Keeble his confession was the trial and that motion, he had hearing on the element id; the common prior to this established concerning pe- Kuglar's report Dr. constitutional underlying petitioner’s received two had trial but competency to stand titioner’s of counsel ineffective assistance claims: petition- investigation of no further made Inexplicably, judge error. how- and trial retardation, although by that mental er’s ever, identify court did petition- to use planning time Keeble was upon it based relief. particular claim which way in some at trial. mental limitations er’s might object- he ventured that Keeble B. suppression strenuously at ed more the full extent hearing had he then known into at a crimi- The introduction evidence disability.13 intellectual a obtained without nal trial of a confession not, public dis- stand- defenders of Miranda does Two affidavits waiver by a alone, to be followed procedures ing constitutional error. cussed constitute representing a re- attorney Constitution, defense when To show violation client; re- one of affidavits tarded go step one further: defendant must representa- specifics of Keeble’s viewed government did demonstrate that the must Kee- concluded that petitioner and tion of juris- something wrong. Our constitutional Finally, deficient. performance was ble’s error, government prudence recognizes family numerous affidavits there were circumstances, in either of situa- these two co-workers, teachers, members, and ac- first, judge errs In the the trial tions. stated that quaintances, many of whom admitting confession over the defen- they petitioner to be “slow” but knew if admits a con- objection; dant’s testify on his asked they had never been there face of evidence that fession behalf.14 fifth no waiver of defendant’s valid right to remain silent and to amendment opinion granting the In memorandum its error oc- present,15 reversible have counsel petitioner’s death respect to petition with beyond curs, is harmless unless the error respect to denying relief with sentence but situation, In the second reasonable doubt. conviction, district court stated counsel, acting government, as the defense has decided ground on the court “the which of an into evidence causes the admission concerns grant [relief] Smith[] failing ef- to render invalid rights under Miranda v. Ari waiver assistance, guaranteed by the fective Kemp, F.Supp. zona.” Smith amendment,16 providing in not (citation omitted), app. sixth (M.D.Ga.1987) transcript corpus proceeding, of which credibility police of the basis of mined on supra credibility note 9. opposed district court. See to the was before the officers as Defendant, peculiar- determination which is a jury, ly province Defendant within the supra note 9. 14. See jury empan- requests special be that a further questions isolated before trial to decide eled States to the United 15. The fifth amendment fact, to wit: person provides shall ... “[n]o Constitution 1) understand his Did William Alvin Smith any a wit- compelled criminal case to be be knowing right to counsel and did he make provision against is made himself.” This ness making intelligent a state- waiver before through process due applicable states to the ment? amendment. of the fourteenth clause 2) by threats Were the statements induced promises? or United States to the 16. The sixth amendment submitted, Respectfully provides all criminal that ”[i]n Constitution Keeble, Floyd W. Jr. /s right enjoy the prosecutions, the accused shall KEEBLE, W. Jr. FLOYD for his Assistance of Counsel to have the ... Attorney for Defendant applicable provision is made defence.” This through process due clause testimony presented the states of this was in fact 13.Much evidentiary hearing fourteenth amendment. held state habe- at the Moore 189, (1988); concluding 102 L.Ed.2d 158 judge trial a basis for validly the defendant did not waive his 702, (11th Cir.1987) (en Kemp, F.2d banc) J.) (Tjoflat, (“Specifically, we must the trial assess the reasonableness case, petitioner, In as I have this noted, indigent judge’s denying action de claimed constitutional error on both [in grounds judge error trial er- request expert] fendant’s for an at the time —counsel appears ror. district court to have denied, it”), 1054, cert. he took 481 U.S. sidestepped despite the first claim: the con- 2192, (1988); see 107 S.Ct. pointing to siderable evidence counsel’s de- Kelso, 1564, also Smith v. 863 F.2d performance, ficient it never addressed the (11th Cir.1989) J., (Tjoflat, specially concur quеstion of performance whether counsel’s (whether ring) judge’s trial denial of a mo Thus, satisfactory. the district court produced tion for severance an unfair trial decided must have the second claim. It did is determined on the basis what was so, however, not on the basis of the evi- time, judge at the rather than from presented judge dence to the trial but rath- perspective “Monday morning quarter of a presented er on the basis evidence to it back”). years corpus proceed- five later in a habeas ing. explain, As I will the district court Similarly, deciding whether or not a contrary to precedent. acted established judge admitting trial has erred in a confes- sion, reviewing court must examine the error, resolving a claim of trial court upon judge evidence not which based his we look to evidence disclosed and devel oped ruling. case, in later state or pro federal collateral In the current the informa- ceedings for which the trial tion judge available to the trial included —evidence judge conceivably cannot held accounta none of the evidence taken ble —but record that was before the evidentiary hearing.17 at its In his challenged trial at the time of the closing remarks at the evidentiary federal Many action. of this court’s decisions hearing, petitioner’s attorney con- analogous expressly recognize contexts ceded argued support as much when he principle. example, For review when of the ineffective assistance of counsel ing a defendant’s claim that the denial of claim: request court-appointed psychia for a The trial initially court which held the competence trist to evaluate his to stand suppression hearing law, deprived process him of due we which made the initial determination of determining stated: whether a trial “[I]n voluntariness —and I use the word “vol- court has process denied a defendant due untariness” as a catch word which I will by refusing psychiatric obtain evalua explain in tion, moment —did not have must we ‘focus on what the trial court light it, did in of what evidence of mental then knew....’” retardation before Francis, Bowden v. 740, 733 F.2d did not have that evidence before it be- Zant, Cir.1984) (quoting Hance v. cause had not —had [defense counsel] (11th Cir.) (Johnson, J.), cert. de simply prepared it—had not investi- nied, 463 U.S. gated it.... (1983)), vacated, L.Ed.2d 1393 An examination of the record from the 85 L.Ed.2d aff'd proper vantage point of thе trial —that remand, on (11th Cir.1985); 767 F.2d 761 judge petition- at the time he ruled to admit Stephens Kemp, see 646- er’s confession —convinces me that no error (11th Cir.) (Hill, J.) (following Moore v. occurred. Kemp reviewing trial court’s denial of assistance), indigent The record request expert judge defendant’s before the trial when — denied, t. U.S. -, 109 he petitioner’s suppression denied motion cer Additionally, judge 17. had the bene- supra tive assistance of counsel claim. See fit of the evidence adduced the at state habeas notes 9 and 11. proceeding respect ineffec- trial, merely counsel stated defense Petitioner stand following picture. reveals request soon file a for a that he would Ogle- in to the Sheriff himself turned gave evaluation but no indica- psychiatric night of June thorpe County on problem.20 any specific When tion of superior court 1981.18 On June question of the admissi- came to the court preside at eventually to judge who was or statements made bility any Keeble, pub- appointed trial defendant, respond- counsel by the defense defender, petitioner. At a represent lic ed, made, a confession was “I understand magistrate, hearing a committal before Honor, any objec- if I don’t know Your but appointment of three weeks after held time.” Here made at this tion will be determining purpose of for the counsel nothing that again, the record contains to hold probable cause there was whether suggested to the trial should have grand jury indict- and to seek petitioner incapable petitioner might have been suggestion ment, no counsel made defense understanding his Miranda or retarded. petitioner might have been making a waiver. valid Moreover, Oglethorpe testimony of the sheriff, present peti- at County who was arraigned September Petitioner was him for had known tioner’s arrest and who again collo- 1981. The court conducted a suspicion time, raise some did not defendant, responded quy with the who mental limitations. about coherently, stating that he understood all questions, identifying the of the court’s over to petitioner had been bound After him, charges against pleading “not indictment, the grand jury but through the guilty.” The court also ran pursuant pretrial proceeding court held more, once “to make pretrial UAP checklist (“UAP”) Appeal Procedure to the Uniform any of On do not omit it.” sure we Following by Georgia law.19 established occasion, independently re- the court prescribed procedure, the court con- evaluating psychiatrist’s con- ferred to the colloquy petitioner, whose ducted a competent petitioner was clusion that responsive. The replies were brief trial, himself defense counsel stand checklist through then ran the UAP court competent. petitioner stated it reached with both counsel. When The court then conducted Jackson- competency to topic routine of defendant’s Warnings Miranda 1.(cid:127) The sheriff read him his Miranda 18. Arizona, question did not him until noon that time but Miranda rested, eaten, day, the next after he had L.Ed.2d 694 warnings. again a) heard the Applicability of Miranda (where b) appli- Compliance with Miranda rights, protect reduce the 19. To a defendant’s cable) error, superfluous possibility issues, eliminate Appeal Georgia has established a Unified Competency of Defendant J. every cáse in which Procedure to be followed for mental examination 1. Motion penalty. Ga. state intends to seek the death insanity Special plea of 2. 1987). (Harrison app. 27-2538 § Code Ann. Specific pre- procedures prescribed are for the insanity plea General itself, stage, and for sentenc- for the trial stage, ing. pretrial court must con- At the signed order an evaluation two 20.The prosecuting a conference attended duct attorney, later, requiring petitioner to submit to a days defendant. defense counsel Kuglar, psychiatric Everett who evaluation. Dr: matters, preliminary required in- certain After report, prepared concluded that the evaluation cluding colloquy with the defendant to deter- competent petitioner to stand trial defense coun- whether he is satisfied with mine suggesting diminished crimi- sel, no evidence found prescribed reviews a "Check- the court then report The list," responsibility for the offense. categories possible nal which enumerates that, error, despite indications stated counsel. with both intellectually, “his intel- limited was somewhat main pre-trial checklist contains nineteen appear to be limited such lect does not categories, of which is divided into numer- each make be unable to ... that he would judge. extent subtopics, explored to be the trial ous responsible decisions in most includes, reasonable part: in relevant It Admissions situations.” D. Confessions and testimony on direct examination hearing21 petitioner’s to Denno on motion Cartee, tran- that hе made to who had suppress Deputy the statement Sheriff John following his ar- statement, substantially law enforcement officers petitioner’s scribed Smith, called Gene Sheriff rest. The State testimony. He paralleled Sheriff Smith’s investigat- County and chief Oglethorpe petitioner had listened confirmed case, who testified that ing officer of the readings of his Miranda rights be- several rights petitioner his Miranda he had read began, had stated on each questioning fore the arrest. Sheriff Smith at the time of fully, and he understood them occasion that petitioner he had known stated that signed the statement had read and he eight years and that knew seven or Deputy further con- rights himself. Cartee He testi- petitioner had attended school. re- petitioner had at no time firmed that arrest, petition- of the fied that at the time no threats or quested attorney an and that good, appeared to un- speech he er’s was Moreover, Depu- promises made. had been him, rights he told read to derstand the ty petitioner was Cartee testified attor- he did not want an the sheriff that conducted “very alert.” Defense counsel signs fatigue ney. Petitioner showed Deputy no cross-examination of Cartee. appear to “bothered” or but did not any or under the influence of “worried” hearing. testify did not at the Petitioner that, drug. Smith recalled Sheriff present any did counsel other evi- Nor his Miranda following day, questioning on the might indicated that he dence that again petitioner, once read to were had not understood or waived his Miranda him- read the statement who also self, rights, he understood his stated that denied motion to The court signed the statement. Petitioner then police, to the find- suppress his statement confession, unprompted made an narrative freely ing “that the statement was recounting leading up to the fully events made, knowledge, voluntarily et cet- with as the offense itself. Peti- offense well point, there no era.” At this was evidence read tioner listened as statement was suggesting petitioner before the court himself, him, read it over back intelligence. The record was not of normal it, signed appending signa- second later hearing abnormality: indicated no ture to added sentence. At no time did an judge colloquies held the trial had twice request attorney. an petitioner, responded appar- who cross-examination, On defense counsel comprehension; court-appointed ent if asked Sheriff Smith he knew psychiatrist petitioner had concluded that age background immedi- or educational trial;22 competent defense was to stand ately questioning line of abandoned compe- stated that counsel relating petitioner’s ability without it to tent; petitioner to have attend- was known i.e., understand rights, to the literate; petitioner’s ed school and to be validity of the Counsel focused waiver. unprompted statement narra- own instead on the conditions under which the ability express tive that revealed interrogation was conducted and on Furthermore, promises might cogently.23 have been made. himself the State 368, 376-77, Denno, competency sounded no 21. In Jackson v. sessment of his alarm 1774, 1780-81, 1783, mind, judge's nega- L.Ed.2d bells in the trial whereas a (1964), Supreme held that Court when a might tive evaluation thermore, well have done so. Fur- challenges defendant the admission of his con- psychiatrist’s report evaluation in- involuntary, ground fession on the that it was petitioner appeared capable dicated that of mak- judge process requires due of law a trial ing responsible "reasonable and decisions in voluntary that the confession is be- determine supra note most situations." See 20. allowing jury hearing to hear it. The fore is made has come to which this determination judge expected to 23.While a trial cannot be hearing. be known as a Jackson-Denno developed only proceedings, know facts in later subsequently light taken evidence shed Although competency to stand apparent what should have been to the trial capacity trial did not establish his knowing to make a waiver, case, intelligent according positive as- at the time. In this produced trol—with constitutional error whenever had two law enforcement officers extensively petitioner’s who testified on adversely he rules to the defendant responsiveness alertness and at the time he other, basis of the facts before him and made the statement. constitutionally significant facts are dis- proceedings. closed in later A habeas not, Trial counsel did either then or at petitioner longer would no required be to during trial, any protest time the trial government demonstrate that the did some- judge’s ruling admitting petitioner’s confes- thing wrong in order to show a constitu- anything into evidence. sion Nor did else entitling tional “violation” him to relief. might occur judge have led the to Thus, whether or not counsel was ineffec- suspect petitioner’s level of retarda- failing uncover, investigate, tive or prevented making knowing tion him from a facts, present important intelligent whether or waiver of his judge’s not the rights.24 ruling trial would be con- proper sidered on the basis of the informa- the limited Given evidence before the tri- him, presented tion petitioner a habeas petitioner’s al court at the time it denied always could any ruling trial attack suppress, I ruling motion to find its entire- when new facts arose.25 ly proper. that, All say this is not to in such a case C. petitioner’s, additional evidence of the judge type To conclude that the proceedings trial commit- adduced at the later must admitting ted constitutional error in peti- constitutionally Rather, irrelevant. it is tioner’s confession would have disastrous to call for an examination of such evidence implications for admission of a proper confes- within its context: an ineffective trial, sion at a state or federal criminal or assistance of counsel claim. The district any ruling indeed for possible consti- court in quite properly this case took addi- significance judge, tutional made petitioner’s trial tional evidence of retardation. judicious no matter properly how and unassailable It based its determination of the ruling might underlying have been at the time it petitioner’s issue of lack of ca- holding equate was made. Such a pacity knowing intelligent make a judge’s trial knowledge lack of of constitu- waiver on that pro- evidence adduced in significant tionally ceedings facts—a lack of subsequently knowl- held to the trial. edge over generally holding which he has no petitioner’s con- retardation ren- testimony Kelso, petitioner’s Cir.1989). state habeas sel, trial coun- n. attorney, suggestion by even own after Were this court to extend several him, case, analogy suspect consultations did not current I would still find no intelligence error. significantly some time that While evidence of mild men- trial, average. tal retardation was adduced at there is no below indication incapacity trial record that knowing intelligent to make a Supreme 24. The judge Court has held that a trial apparent waiver ever became in the course of obligation sponte has an to conduct sua a com trigger the trial so as to a need for the trial petency hearing ”[w]here evidence raises a' court to intervene on its own initiative. “bona comрetency fide doubt’ as to defendant’s Robinson, to stand trial.” Pate v. Indeed, case, in the current the district court 385-87, 836, 842-43, judge was asked to declare that the trial erred in (1966). Were this court to extend that obli admitting petitioner’s confession into evidence gation by analogy to the issue of invalid waiver though petitioner even himself had never stated rights, of Miranda I would still find no evidence rights that he did not understand his Miranda or giving petition cause for bona fide doubt as to consequences waiving them. The district capacity knowing intelligent er’s to make a failing court held that the trial erred in waiver in the record of what was before the suppress petitioner’s confession because of his judge. trial incapacity to waive his based on subse- Similarly, panel recently sug- of this court quently third-party, expert testimony disclosed gested judge presiding joint that a over a could not have understood and continuing duty has a proceed- monitor the they waived his Miranda unless were ings sponte and sua slowly carefully order severance in explained the event to him. See su- prejudice of undue pra accompanying to a defendant. Smith v. note 11 and text. invalid, however, require I the district court to decide dered the confession petitioner’s other claims identify adequately as well. failed to district court violation, stating simply the constitutional A. grant choice that it had “no other corpus relief based on the habeas judgment generally The final rule domi ‘knowing intelligent’ lack of a waiver.” appellate practice. nates federal See Di Smith, F.Supp. 664 at 504. The court States, 121, did Bella 369 U.S. 124- v. United explicitly underlying relate its determi 26, 654, 656-57, 82 S.Ct. petitioner’s constitutional nation to claim (1962). This court carved out Iwhat be error, although trial the effect of its exception an lieve be to that rule in holding to characterize the 523, trial Kemp, Blake v. 758 F.2d 524-25 Nor, judge’s ruling Cir.1985), as erroneous. even by allowing appeal the State to after the extensive evidence received on the granting from a district court order habeas counsel, assistance of petitioner’s issue of ineffective relief on the basis of one of explicitly 54(b), however, did district court deal with several claims.26 Rule above, rule; rather, As demonstrated exception that claim. not an to the subsequent preserves judgment taken in additional evidence ha the final rule estab lishing proceedings procedure whereby beas was relevant to thе reso a district court may certify precisely judgment lution of as final a from unaddressed issue which appeal may although be taken and not at all to the issue of trial based on Sears, fewer than all error. claims an action. 427, Mackey, Roebuck & Co. v. 351 U.S. reasons, foregoing For the on the merits 437-38, 895, 900-01, 76 S.Ct. 100 L.Ed. appeal, of this I would affirm the district (1956). expediting procedure 1297 This of corpus court's denial of habeas relief from promotes judicial ten economy and serves conviction, but not because parties by the interests of the leading to a judge’s admitting trial error in quick dispute. and final resolution of a See “harmless,” confession into evidence was Co., Solomon v. Aetna Ins. 782 F.2d Life Rather, as the court concluded. I 58, (6th Cir.1986) (“[Rule 60 54(b)] at because, shown, would affirm as I have tempts to strike a balance between the judge simply committed no constitu- undesirability piecemeal appeals and the reason, error. tional For the same I would making need for review available at a time grant reverse the district court’s of relief parties”). best serves the needs of the from sentence. 54(b) Unless Rule judi- certification is ciously invoked, however, pre- it can have III. cisely opposite parties effect: dissat- judicial the name of economy, the dis- isfied with the judgment results of the judgment final, trict court certified its as subsequent appeals and/or will continue to pursuant 54(b), addressing press to Rule without their unabandoned claims in the dis- fifteen by petitioner. other claims raised trict appeals court and to take judg- Because I believe disposition that serial of ments on those claims. To minimize this corpus petitioner’s a habeas claims possibility, making a district court under- a Rule mines, promotes, judicial 54(b) rather than econo- certification must determine that my in courts, both federal and the state just there is no delay cause for and that disagreeing I am on record as encourages disruption with this rule. It of state criminal position judgment justice systems, court’s that a district court’s policy whereas federal as ex- some, granting pressed relief on the basis of but less highest in our rules and in our court's all, petitioner's than of á See, habeas claims decisions disruption. is to minimize such appealed by 9(b), e.g., the State and Governing reviewed this court Rule Rules Section 2254 judgment. as a Kemp, Courts, final See Blake v. 758 Cases in the United States District 28 523, (11th Cir.) J., (Tjoflat, dissenting), (1982) F.2d 535 (discouraging U.S.C. § 2254 successive denied, cert. untimely 474 U.S. petitions); Lundy, Rosе v. (1985). 509, 520, L.Ed.2d I continue to believe that 455 U.S. holding judgment (1982). such a undermines the final L.Ed.2d 379 urged of “sound that the district courts do more than certification is in the interest 54(b) judicial Curtiss-Wright cursorily language administration.” track the of Rule Co., 1, 10, Corp. itself, see, v. Elec. e.g., General Pension Guar. Benefit 1460, 1466, (1980). L.Ed.2d 1 Corp. Corp., 875 F.2d LTV by making The district so court does (2d Cir.1989); Solomon, 61; 782 F.2d at case-specific litigation assessment of the 268-69; Hayden, Rothenberg 719 F.2d at by “weighing factors rele- whole ... Co., Security Management relaxing desirability vant (5th Cir.1980); General, prohibition against piecemeal appel- usual Joliet, 1050, 1051 City Inc. v. 598 F.2d n. of Spiegel late review.” v. Trustees (7th Cir.1979); Tufts 1 Corp., of Allis-Chalmers 38, (1st Cir.1988). College, 843 F.2d 43 521 F.2d at 364. certify The decision to is within the case, In the current the district court judicial “sound discretion” of the district certifying petitioner’s order “Miranda Curtiss-Wright Corp., court. 446 U.S. at merely claim” stated the court’s determina 10, 100 S.Ct. at 1466. The role of a review just tion that “there no reason for [was] “reweigh ing equities court is not to the or delay.” The order included no overall as reassess the facts to make sure impact sessment of the of certification on the conclusions derived [the parties or on the courts. Because the weighings ju and assessments are court’s] given district court has us no reason to dicially supported by sound and assume that it considered all relevant Id., Thus, record.” 100 S.Ct. at 1466. factors, substantial deference to the dis appeals court of the district court’s reviews trict court’s decision is not I mandated. certification decision with substantial def believe this court should examine the erence and will reverse the district court question of whether certification im only discretion, provided for abuse of granted providently and should do so even district court has considered relevant though parties challenged have not factors and articulated its reasons for certi order, question implicates since the ap fying judgment Spiegel, as final. See pellate jurisdiction of this Spie court. See (substantial 843 F.2d at 43-44 deference if (“because gel, 843 F.2d at 43 the issue responsibility district court has fulfilled its implicates scope appellate juris of our specifying the factors on the basis diction, ‍‌‌​‌​‌​​​‌‌​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌‍duty up we are bound to take it sua granted certification); Solomon, which it ”); 198, sponte Herring, v. 777 F.2d Young (standard 782 F.2d at 61 of substantial (5th Cir.1985) (lack proper 201-02 Rule deference assumes “that the district court 54(b) jurisdictional ap certification is weigh undertook to and examine the com pellate sponte); raise issue sua peting factors involved the certifiсate Corp., 521 F.2d Allis-Chalmers at 362-63 decision” and set them forth so that a (appellate jurisdiction depends upon district reviewing court can tell whether there has granting 54(b) properly court’s Rule certifi discretion); Hayden been an abuse of v. cation). McDonald, 266, (8th 719 F.2d 268-69 Cir. permitting judgment certification of a 1983)(same); Ritenour, Arlinghaus v. although final only as based on one of (2d Cir.1976)(reasoned F.2d state claims, 54(b) several Rule creates a tension permits appellate ment court to review dis between, hand, policy on the one discretion); trict court’s exercise of Allis- avoiding piecemeal litigation ap- and serial Corp. Co., Philadelphia Chalmers Elec. and, other, peals, accommodating (3d Cir.1975) on the (district 521 F.2d legitimate parties. interests of the clearly court should See articulate reasons to Corp., give appellate review). Curtiss-Wright 446 U.S. at court a basis for 1465; Solomon, Although this S.Ct. at 782 F.2d at 61 n. required court has not Consequently, express district courts to their reasons “in certification should be case,” every granted only In re it serves the Processing Yarn Patent when interest Validity Litig., judicial “sound administration.” Curtiss- Cir.1982), appeals generally courts of Wright Corp., 446 U.S. at 100 S.Ct. at us, True, might judicial economy situation before be served particular

1466. The grant- following corpus which relief has been situation: at new sen- court, tencing respect ed sentence but trial conducted in state a life conviction, respect might imposed, to his sentence denied with might accept presents exceptionally strong argument decide to that sentence with- returning to the against practice deciding grant- out district court to seek by litigating relief from his conviction ing litigant’s relief one of based challenge Smith, unadjudicated claims that Thigpen F.2d claims. See might accept (11th Cir.1986). conviction. He a life sen- In Thigpen, tence, instance, if he fears that a sec- approved parties’ where a district court guilt again ond trial to determine his agreement litigate first to the constitution- murder, result a conviction for malice ality petitioner’s death sentence and to thereby subjecting him pos- once more to a postpone challenges all underlying sentencing sible death sentence in the conviction, practice we described the phase that would follow. In such a situa- contrary “strong policy considerations tion, petitioner might request the district Congress, have caused the in enact- [which] outstanding court tо dismiss his habeas ing governing the statute and rules habeas claims, litigation and the would end. cases, courts, formulating long- and the in principles, require established to that all petitioner if Even fears for reconviction grounds known and available that could murder, however, the offense of malice he support grant brought of habeas relief be might accept not the life sentence and adjudicated single petition.” in a Id. thereby end the I matter. am not at all Had the district court in this case under- petitioner certain that could not make an taken to examine the competing interests argument sufficiently meritorious at least — case, in this I do not see how it could have require to by consideration a court—that failed to see that not does certification imposed once a life sentence is in the resen- judicial but, in this economy, case threaten tencing originally by ordered the dis- explain, as I shall legit- also frustrates court, trict the state is thereafter precluded parties. imate interests of the seeking imposition penal- from of the death

ty after a on new trial the malice murder charge. See, example, for the debate be- B. majority Harlan, tween the and Justice in Drawing finding on petitioner its did Pearce, North Carolina v. on the issue of not rights, waive his Miranda the district jeopardy whether the double clause of the in opinion court its memorandum ordered defendant, fifth protects amendment once the State to conduct sentencing sentenced, anew the imposition from later of a harsh- phase trial, declining, while following er sentence retrial. 395 U.S. “judicial the interest of economy,” 749-50, 2072, 2088, to challenges (1969) (Harlan, address other J., concurring part Presumably, conviction27 the court’s dissenting part) (“[T]he deci defendant’s grant 54(b) sion to Rule certification on a appeal choice to an erroneous is conviction single issue was also based protected on the concern by the rule that he again not judicial economy. The placed district court’s be in jeopardy suffering the assumption judicial economy greater punishment would be imposed at the by however, practice, trial.”). served such a is not first If successful in argu- such an out in ment, borne most of the petitioner scenarios that are would then run no risk of likely to disposi follow the district court’s a second death sentence even if reconvicted tion of this case. of maliсe litigate murder and could with challenging jury In addition to his process by conviction and that he was denied due through his ineffective assistance of counsel presumption establishment of a conclusive claim, petitioner challenged grounds it on the one essential element of the offense of murder. impartial was not tried a fair and remand to of reversal the event chal- remaining claims habeas impunity spend court, court will lenging his conviction. re-examining effort time and additional scenarios, petitioner a habeas In other could sentencing error claims of litigate his remain- has obvious incentive proceeding. Even disposed of one been litiga- claims, prolonging thereby ing grant appeals if court of affirms a1 optimistic about is petitioner If tion. relief, long petitioner sentencing as as guilt were the outcome more favorable conviction, his without relief remains repeated, for exam- to be of his trial phase the district court he will be back before the re- assuredly press he will ple, almost challenge claims that litigate undecided challenging his con- claims maining habeas follow, surely Appeals will conviction. his received a life if he has Even viction. petitioner byor State. either taken sentencing court state new sentence hardly comports an outcome Such based on trial, would still be that sentence judicial administration” concern for “sound charge on original conviction deci- court’s should underlie a district of a lesser-iri- Conviction malice murder. certify judgment final a based as sion correspond- would mean cluded offense petition. in a habeas all claims fewer than if a And sentence. ingly lesser case, When, the district court in this sentence, e.g., new dissatisfied sentencing repeat the orders the State to again, he once death sentence he receives a trial, the district phase of the the re- expected press certainly can disruption greater imposes an even challenging his con- maining claims system. state expense upon viction. jury for impanel a new must State appeals re- Furthermore, if the court must sentencing petitioner. It purpose of of the grant court’s writ the verses district calendar for sec on a trial the make room claims than all of the raised on less based re sentencing proceeding, which will ond immediately is petitioner, the mischief by a state litigants. Thе delay in for other sult must consider district court apparent: the petition itself with reacquaint court must remaining on remand. claims petitioner’s that, petitioner Then, if after all er's case. case, Blake, corpus Although also a habeas conviction, new successfully attacks the exception to the final judicial involved a still based on sentencing proceeding pur- rather than certification judgment rule naught. The for have been will conviction improvi- 54(b), of the result to Rule suant imposition on time, expense, and wasted is same: dently granting certification para- members, judges, and state trial jury remand, court, on will have [T]he avoided have been personnel could judicial petition- itself with to refamiliarize the claim considered district court had the pro- claims, repeat and it could er’s petitioner’s convic as to granted relief arid pick here. could It cess we have Needlessly forcing place. first tion remaining petitioner’s among the choose proceeding is futile to conduct a the State appearing be litigate those claims and of re policy our entirely inconsistent with justi- one If found it most meritorious. of, the disruption for, spect and minimal writ, could, in fying the issuance Isaac, 456 See, Engle v. e.g., courts. state and resources time an effort conserve 1558, 1572, 71 107, 128, 102 S.Ct. U.S. for an- example, leave remainder for (1982) (“[f]ederal intrusions L.Ed.2d hence, cycle I tortuous day; other frustrate both criminal trials into state begin anew. could described punish offend power to sovereign States’ J., (Tjoflat, Kemp, 758 F.2d at Blake attempts honor good-faith and their ers omitted). (footnote dissenting) Lundy, 455 rights”); Rose constitutional 1198, 1201-04, 515-20, appeals re- Thus, of the court whether (1982)(stressing importance grant of court’s 71 L.Ed.2d a district or affirms verses requirement that of comity in context sentence petitioner’s from a habeas relief pro in state habeas claims, exhausted claims petitioner’s be on less than all based in federal being raised ceedings before In economy undermined. judicial federal court); Galtieri v. Wainwright, 582 F.2d by certifying current case final judgment (5th Cir.1978) (en banc) (exhaus- only on petitioner’s one of poses a claims— requirement tion policies serves of “comity, to, real threat not an of, accommodation avoidance of piecemeal litigation, economy the State’s interests. judicial energy, and the fullest consider- Finally, granting 54(b) Rule certification of a аtion claims” and furthers in a habeas is particularly case inadvisable “goal having] [of travel possible because preclusive effect of through system each [state federal] partial judgment. final A peti- once, most, quest in his for vindica- tioner’s claims are and, often interrelated alleged tion of errors”). constitutional as in case, may the current on one based Moreover, considering not only the intru- or more common elements. Frequently, sion on the system state court but also the district court can judg- reach position of the State party as a any single claim, ment on com- element litigation, the above discussion shows that mon to more one than litigat- claim must be the State’s way interests are in no served ed. Because partial judgment certified by allowing appeal judgment from a based 54(b) as final under Rule is no less final on fewer than all of claims. than other judgment, final parties to State, in trying a criminal defendant, the case are thereafter precluded from re- legitimate has interests deterrence and litigating, part of an claim, unresolved punishment under- are —interests fully issues litigated and necessarily decid- mined disposition serial of habeas ed in the reaching course original claims: partial judgment. Finality serves many interests. [State] hand, the case at instance, Availability of unlimited federal collat- district court eral did not review consider guilty preclu- defendants frus- sive trates the effect legitimate partial State’s of its final judgment interest deterring crime, since the deterrent ineffective force assistance of coun- penal laws is diminished to the sel claim—to extent the extent that this claim is persons contemplating criminal ac- based on alleged invalidity petition- tivity believe there possibility is a er’s waiver of rights.28 In his they escape will punishment through re- ineffective claim, assistance of counsel peti- petitive collateral attacks.... Finality tioner alleged performance that counsel’s also serves the legitimate State’s puni- deficient, i.e., was (1) counsel should tive interests. prisoner When a is freed have investigated his mental retardation on a petition, successive often many brought it to the attention of the trial years after crime, the State judge, (2) if so, counsel had done the unable successfully to retry him. This judge trial would not have peti- admitted unacceptable result is if the State must tioner’s confession into evidence. Hе also forgo conviction of guilty a defendant alleged (3) that the confession’s introduc- through the of memory” “erosion and tion into evidence prejudiced petitioner at “dispersion of witnesses” that occur with guilt both the sentencing phases of his passage the of time that invariably at- trial. As previously indicated, the district tends collateral attack. court did not reach question the of coun- Wilson, Kuhlmann v. sel’s 452- deficient performance first in- —the 2626-27, quiry when deciding ineffective assistance (1986)(citations and omitted) (cit footnotes of counsel claims. Strickland, See ing Isaac, 456 U.S. at 127-28 687-88, n. 102 U.S. at 104 S.Ct. at 2064. In hold- S.Ct. at 32). 1571-72 n. The ing “tortuous that the introduction of the confession cycle” described above — and invited in the into evidence was harmless error with re- 28. Petitioner also per- claims that his counsel’s the because district court did not determine formance was deficient in respects. other petitioner prejudiced, whether was respect with These bases for his ineffective assistance of sentence, either to his conviction or to the result of other course, may, counsel asserted, claim of still be alleged deficiencies. judgment’s pre- the establishes however, conviction, nonetheless spect to might prejudice on the effect, effect peti- clusive held, in court issue— district finding district court’s guilt agree in the with not prejudiced not was tioner by intro- prejudiced introduction. was not petitioner confession’s by the phase sec- If issue of is the prejudice confession. of of the duction determination The in an presented assistance deciding properly ineffective had been step prejudice ond partial The peti- upon judgment claims. See id. based a appeal of counsel from claim on another based of counsel judgment was ineffective assistance final tioner’s of the involving the introduction to reverse claim, might of error have voted they i.e., evidence, judge trial into conviction. confession relief from of denial introduction holding that the error, situation, but judges who those current In the petition- prejudice did not of not err court that the did hold would trial, the district of his guilt phase below, er judgment to vacate have from relit- precluded has court 54(b) certification that Rule ground on the already decid- prejudice igating the issue— avoid in order to granted, improperly was inef- of his context against him—in ed preserve peti- and to effect prеclusive its counsel claim. assistance fective of counsel ineffective assistance tioner’s district holding If the litigation. court’s for further the district claim Conversely, “trial petitioner’s confes- had decided both court the introduction respect to his ineffective assistance and the prejudicial claim was error’' sion in favor cláim, issue finally prejudice decides that issue of counsel sentence to, preclusive effect squarely thus has presented petitioner and been would have appellate in one against by, State. court and decided therefore, least, a very At the proceeding. Moreover, decision district court’s judg- court, partial certifying district af- final can as partial judgment certify a final, should be as in a case ment appeal. on of the case outcome fect ele- that contain all to reach claims sure court denied Here, district example, the for one which common with ments in conviction, holding relief judgment based. his confession (1) that the introduction (2) error, that the evidence into today’s disposition appeal, judges of this harmless. error district affirms the court equally divided court’s affirm the who would court of law. by operation simply judgment might aside the conviction refusal set 54(b) Rule court’s ill-considered The district affirming: some reasons different have panel of certification, by a actually invited court that the agree might 483-85, see Smith, F.2d this court petitioner’s confession was introduction barred, by unwittingly has thus supra at harmless, i.e., it did it was but that error law, might been what operation others, such petitioner; prejudice of coun- assistance ineffective meritorious relief on of affirm the denial myself, would sel claim. did not err judge trial ground district court’s refusal Because er- harmless reach the thus not likely to is of claims all address issue.29 But whatever ror/prejudice above, I be- problems discussed cause the affirming the judges for of the reasons improvidently court lieve that judgment, judgment, court district case. 54(b) in this Rule certification granted final, par- affirmed, and the stands once merits, on the disposition As an alternative is- relitigating the from precluded are ties and the certification vacate that I would of course necessarily decided in sues and direct entered thereon judgment this court who judges of reaching it. The all of litigate did not only that the hold claims. ground on that affirmance whose err —but forth My set sole concern evidence. prejudice to of position on the no issue I take 54(b) certi- consequences of a Rule trial, resulting undesirable phase his petitioner, in either of such as this. in a habeas case fication into the introduction his from FAY, Judge, specially p.m. evening. Turner died at 8:10 Circuit night, Later that after Smith’s father had concurring: helped police him convince to come out Judge I I concur in Parts and II of hiding, from the in he woods which was Tjoflat’s special concurrence. Smith taken to the surrendered and was jail adjoining County. police in Clarke KRAVITCH, Judge, Circuit advised Smith of his constitutional concurring part dissenting in in upon question his surrender but did not part from the reinstatement of the morning, him until the next after Smith opinion: District Court’s opportunity sleep. had eaten and had an law, Applying long-settled we would af- however, point, At no did Smith meet with grant firm the district court’s of writ family, members of his and he was de- corpus ground petition- on the county tained a different from the one er’s waiver of Miranda was not family which his resided. “knowing intelligent.” morning On the of June Sheriff Gene Deputy

Smith and John Sheriff Cartee again I. advised Smith constitutional rights. Smith declined consultation with Smith, Georgia prisoner, Alvin William and, attorney stating an after that he un- was convicted of robbery armed and malice rights, gave derstood constitutional murder and was sentenced to death for the following statement: offense of murder. morning On the I, Smith, William Allen make the [sic] 8, 1981, June Smith walked from his home following I statement. left home and Lexington, Georgia grocery to a store aunts, my went to Ruby Dorsey. I left service station owned Daniel Lee my aunts and went John Howard Turner, 82-year-old man known to Woods. I left John Howard and started Smith as “Mr. Dan.” Smith alone now walking through Black Bottom toward happened store, knows what inside the but Lexington go to Mr. Dan’s store. I disputed it is not that within a few minutes pack asked for cigarettes and saw store, after Smith entered the Turner was grabbed was his self. I then him. lying pool blood, having unconscious resisting He started me pulled and I been seventeen stabbed times and beaten pocket knife out of back and started with a hammer. stabbing him. scuffling He was still Immediately Turner, after the attack on he fall at back of store. He had a ham- Smith noticed that his friend Willie Robin- I kept stabbing mer. him until he son standing was outside the door to Turn- dropped picked hammer. I up hammer er’s store. Robinson did not enter the and hit him twice with it. I heard some- store, door, but Smith went to the thing which come to door. I went to door and open, Robinson, “Damn, and told I sаw Willie Robinson and I told him I had Dan,” think I killed Mr. or words to the killed Mr. Dan. I went back in store same got effect. Smith asked from front money Robinson not to door and from anyone register tell cash killing, about the pock- out Mr. Dan’s Robinson et. I then ran immediately up left back Black police. to inform the Bottom. I my took wrapped shirt and my Smith then it around store, went back inside Turner’s hand that bleeding, wallet, and also the removed Turner’s money took hammer. I threw them on side register, fled, cash road carrying the up the street I running. as was I hammer with which he had attacked Turn- make this statement voluntarily without threat Eyewitness er. testimony by Collins, John promise or my own free will. stopped who had with his coworker Rita Ridgeway purchase gasoline to from Turn- This confession by was written down Car- er, established that Smith ran across the signed tee and by response Smith. to highway on which Turner's store was locat- inquiry, further Smith then made the fol- ed. lowing statement, which Cartee wrote on presented that trial, testimony was At “The reason of the confession: back the in classes for the I.Q. placed him Smith’s money get actions, trying to I was my for mental His mentally retarded. educable car.” another 10 and 12.2 at between age was calculated with malice charged Smith grand jury A on his own the stand took years. Smith Prior to tri- robbery.2 and armed murder1 on he was “slow and admitted behalf psychiatric requested al, counsel defense things, I didn’t ... learning. of the Some defendant, and made evaluation (Trial I know.” and stuff didn’t the words on the the confession suppress to motion the 289). account of gave He an at tr. voluntarily, know- not grounds that it was Al- store. inside Turner’s occurrences psychi- given. The intelligently ingly, and to fol- testimony is difficult though Smith’s by a state performed was evaluation atric record, certain that he it is on a cold low competency although the and psychiatrist,3 beating stabbing Turner. and admitted tran- in the record hearing is not contained significant testimony differed Smith’s report is the psychiatrist’s script, the given however, details, from the confession de- indicates that the report The record. Ac- Deputy Cartee. and to Sheriff Smith limited, he intellectually and that is testimony, fendant he asked cording Smith’s re- and making “reasonable capable of cigarettes. Turner pack Turner for situations.” cigarettes in most decisions the to reach for sponsible turned around added). him on shoulder for touched the (emphasis and Smith touched reason. As Smith unexplained an trial the state minutes before In the Turner, had a ham- notiсed that Turner he hear- conducted the Jackson-Denno hand, know in his but Smith mer “[didn’t] admissibility of Smith’s confes- ing the from, off the hammer come where the Geor- objected to sion, counsel defense where, you know.” Smith fromor counter during Appeal procedure gia Unified ham- “grabbed that Turner testified that is asked about defendant which self, know, forcing his mer, you he started right his representation, his adequacy of away.... All know, got I and carried you jury, right trial guilty, his plead all_ know, stabbing. That’s I I was objection was appeal. The right to and fell, then he and started to back [H]e the defendant ground on the made fell, too, hammer, fell, he and when mul- to understand the competent was “not up hit picked I the hammer guess I procedures under titudes had that he denied him with it.” Smith my that’s Appeal, and Unified when he entered Turner intended to rob those he cannot waive knowledge, and that took Turner’s that he testified store and 22). Arraignment at (Tr. rights.” register cash money wallet and encountering Willie Robinson. after Deputy Thereafter, Sheriff Smith asked Smith then hearing to Defense counsel suppress at testified Cartee statement other he had considering their whether confession. After I replied, “Yes. jury. Smith make concluded “that testimony, the court I ain’t had Dan and to kill Mr. didn’t mean made, voluntarily freely and statement nothing, and Dan nothing against Mr. or allowed its knowledge, cetera” and et said that further sorry I did it.” Smith I’m preserved at tri- Objection was admission. him friendly to always been Turner had the confession the state introduced when al frequently had family, signed rights form a waiver never before had in Turner’s store but been 222). (Trial Also petitioner. Tr. anything. stolen trial, alerted defense counsel guilty both jury found Smith capacity a diminished some form of rejecting his defenses implicitly charges, would be offered. defense Oklahoma, 470 U.S. prior to Ake 16-5-l(a). 3.This § See O.C.G.A. 1. (1985), and no 84 L.Ed.2d psychi independent provision was made for 16-8-41(a). § O.C.G.A. See atric examination. 1426 rights knowingly or intelli- intent to kill. After his Miranda

insanity lack of testimony gently the sentenc- if the nature of the hearing further trial, jury accepted consequences of waiver had not been slow- ing phase of the ly carefully explained to him. The murder of Turn- that the state’s contention vile, disagree wantonly expert expressly did not “outrageously or hor- state’s er was torture, this conclusion. rible, in that it involved or inhuman mind, aggravated or an bat- depravity of memorandum The district court issued a victim,” tery see O.C.G.A. to the opinion granting Smith habeas relief. 17-10-30(b)(7), imposed death § (M.D.Ga. Kemp, F.Supp. Smith v. sentence. 1987). essentially undisputed Based on the unsuccessfully appealed testimony regarding to the Smith’s mental retar Smith State, dation, Supreme Court. Smith v. the court found as a fact that Smith Georgia 43, denied, 228, knowingly 290 S.E.2d cert. had not and intelligently 249 Ga. waived 74 L.Ed.2d 148 his this factual Given (1982). attempted, finding, He also without suc the court held that Smith had not cess, post-conviction validly secure relief from waived his Miranda when he Georgia gave courts. a confession to state Smith v. Fran Sheriff Smith and denied, cis, (Ga.), Deputy cert. Cartee. The district court further S.E.2d 260, 88 L.Ed.2d U.S. 266 concluded that the introduction of Smith’s (1985). petition then filed a for ha- confession harmless Smith error as to his corpus sup in the United States District conviction beas because evidence “[t]he Georgia. port Court for the Middle District of of Smith’s conviction for murder and alleged grounds petition robbery overwhelming.” His numerous for armed Id. at [is] believe, relief from both conviction his sen 506. The district court did not death, including however, assist tence of ineffective confession was harmless counsel, impartial death, jury, noting ance of denial of an as to Smith’s sentence of improper trial, introduction of his confession took the when Smith stand at his Arizona, testimony substantially violation Miranda v. ... was “[his] sympathetic 16 L.Ed.2d 694 more than was the matter-of- (1966). fact on written confession the violent acts he had committed.” Id. The district court evidentiary The district court held an granted therefore the writ of habeas cor hearing during on Smith’s mental state sentence, pus to the subject death period immediately of the crime and there- conducting sentencing state’s a new hear presented testimony after. Smith ing. Kuglar, Dr. psy- Everett a board certified chiatrist, Fisher, Dr. Brad a clinical Because Smith did not abandon other relief, psychologist, grounds correctional both whom the state asked the dis- had examined The state remaining Smith. introduced trict court to reach the claims. DeLaserna, testimony so, of Dr. Marcelo citing district court declined to do testing, expert psychological judicial had economy. who considerations of Subse- quently, neither met nor tested The testimo- expeditiously Smith. the district court ny experts granted Smith’s tended to establish certification under Fed.R.Civ.P. ‍‌‌​‌​‌​​​‌‌​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌‍mentally 54(b) just that Smith was retarded and un- there was no reason for during pertinent peri- der stress delay judgment severe and that final should be od, and that Smith could not have waived entered on the Miranda claim.4 Smith obtaining entry judgment Before certificаtion from the and direct of a final court, sought appellate 54(b). the state review of the the Miranda claim. Fed.R.Civ.P. Cf. granting corpus district court’s order the absence of such a determination and di- claim, court, adjudi- based on the Miranda and Smith cross- rection cating order appealed parties from the district court’s conclusion fewer than all the claims of the judgment appealable that the Miranda violation was as to a suit is not a final harmless as of however, party, right his conviction. Neither had re- under 28 U.S.C. § 1291. See In re Yarn quested Processing Validity Litigation, that the expressly district court deter- Patent (11th Cir.1982) curiam). just delay (per was no that there reason for mine This

1427 Thus, court a 475, at 1628. 86 S.Ct. U.S. at the district appeal from notice of filed a Miranda rights of considering the waiver corpus as the of habeas court’s denial As inquiry. Jus two-pronged a conducts cross-appealed conviction, state the and in Moran v. Bur made clear the sen- tice O’Connor as to grant of the writ from the 1135, 412, 421, 106 S.Ct. bine, 475 U.S. tence.5 (1986): 1140-41, L.Ed.2d 410 89 II. first articulated Echoing the standard 464, Zerbst, 458, court 304 U.S. v. Johnson on which the in only claim The (1938), 1019, 1023, 82 L.Ed. 1461 judgment, of and entry final 58 the directed “(t)he for consider holds defendant Miranda presented claim that the thus validity vel non the court, of is the effectuation” waive this ation the rights. warnings “provided of Miranda conveyed of Smith’s waiver knowingly empha voluntarily, recently court is made panel this waiver of As 444, 475, U.S., of at suspect’s intelligently.” waiver 384 sized, validity of a the See Cir.), 2832, Miller Miranda cert. 100 L.Ed.2d the voluntariness denied, v. Dugger, 933 — U.S. -, is 838 F.2d 1530 (1988). The district issue a confession. 108 S.Ct. distinct (11th supra, Arizona, two 86 (1981)]; 101 S.Ct., S.Ct., distinct dimensions. at Brewer v. ^[1880] 1612, at 1883 451 1628. Williams, U.S., The [68 ^[477] Edwards v. L.Ed.2d inquiry has 430 U.S. 482, 378 1242, 1232, L.Ed.2d 387, 404, distinction. 51 this 97 S.Ct. understood correctly court relinquishment 504. Kemp, F.Supp. at First the v. (1977). 664 424 Smith See voluntary in right must been the banc, rehearing in how- petition for In its product of a that the sense v. Colorado argued ever, the state than choice rather free and deliberate 515, 157, 93 Connelly, 107 S.Ct. 479 intimidation, deception. Sec- coercion or away effectively did (1986), 473 L.Ed.2d made ond, have been the waiver must intelligent” require- “knowing and with nature of the both a full awareness rights. waiver Miranda valid ment being right abandoned of the po- this subsequently abandoned state abandon decision to consequences court in its sition, this and conceded circum- “totality of the Only if the it. waiver Mi- valid in banc brief interrogation” surrounding the stances "knowing and intelli- randa rights must be and the choice an uncoerced both reveal op- Nevertheless, this we take will gent.” may a comprehension requisite level state of current examine portunity the Mi- properly conclude court of Miranda regarding waiver law Fare waived. randa rights have been 725, 707, C, 442 U.S. Michael (1979). See 61 L.Ed.2d A. Butler, also North Carolina until been this begin what has We 374-375, unexceptionable statement appeal an (1979). L.Ed.2d his may waive A defendant law. inquiry waiver dimensions The two “voluntarily, know do so rights, but must vol- concerns. Miranda, different “[T]he reflect two intelligently.” ingly and adopted In re procedure Following juris accordingly lacked that it concluded court Litigation, Validity Processing cross-appeal. appeal Smith Patent Yam over diction v. riam). Cir.1988) (per appeals be cu Kemp, F.2d 481 Smith moved F.2d at briefs, record, argu- oral decided prior parties’ panel in the ment submitted cross-appellee in appellant is Smith thus Kemp, 849 F.2d appeal. Smith v. attempted See appellee appeal, is now and the second state this and prior granted. A This motion at 483-84. cross-appellant. confusion with To avoid court panel of this affirmed first, parties’ appeal, which the abortive (1988). part. part reversed reversed, refer to we Smith positions shall were banc, and case in We hear determined solely "petitioner” to the state "Smith” or panel opinion. vacated as "the state.” untariness designed determination ... In Connelly, argued defendant presence determine the police of coercion.” his confession was voluntary because Connelly, 107 S.Ct. By at 522. ensuring the “voice of God” told him to confess. uncoerced, that a is waiver and thus volun 107 S.Ct. at 519. The Colorado sup- courts “ tary, courts lawless conduct by ‘deter[ ] pressed Connelly’s confession on the ” police prosecution.’ (quot Id. at 523 grounds that his confession was involun- ing Lego Twomey, 477, 489, 404 U.S. 92 tary, and against thus its use him would 619, 626, S.Ct. (1972). On violate the fourteenth right amendment hand, the other “knowing the and intelli process, due and also because waiver of gent” requirement flows from the fifth Miranda rights involuntary and there- guarantee amendment itself. Because of invalid, fore rendering his confession inad- primacy the of the fifth right amendment Connelly missible. Id. never claimed that against self-incrimination, and because action of the state had coerced him into unique the circumstances of custodial inter giving confession; instead, the rogation, the requires Constitution that the “external” factor that motivated Connelly police take the step reasonable of ensuring to confess was the voice of God. suspect that the understands basic fifth Supreme Court reversed. In an amendment and the consequences of opinion by Chief Rehnquist, Justice his decision to waive those Court held that some part coercion on the Courts are ill-equipped to discourse on government authorities —coercion that is the inner workings mind; of the neverthe- in some way the cause of the confession— less, may it helpful keeping be the two a necessary predicate finding for a prongs inquiry of the waiver distinct to that a voluntary confession was not for the note the difference between motivation purposes of fourteenth amendment due comprehension. The “voluntariness” process police concerns.6 “Absent conduct inquiry is solely concerned with the defen- causally confession, related there is dant’s in waiving motive his Miranda simply no for concluding basis that any rights. The “knowing intelligent” in- state actor deprived has a criminal defen- quiry, hand, on the other does not look to dant of process due law.” S.Ct. at motive, the defendant’s nor does it consider police Because the had in no way post hoc efficacy waiver; in- coerced Connelly in confessing, the Court stead, “knowing intelligent” inquiry reversed the Colorado court’s determina- focuses solely on whether suspect un- tion that the use of Connelly’s confession derstands doing. what he is process violate the due guarantee of B. the fourteenth amendment. We turn now to the state’s short-lived Having theory that clarified Colorado v. Connelly, 479 fourteenth amend- process ment due (1986), inquiry, L.Ed.2d 473 voluntariness requirement eliminated the that a waiver of Court also separate addressed the question Miranda “knowing and intelli of validity Connelly’s waiver of his Mi- gent.” rights.7 randa The Court observed that specify 6. The Court did not type what level or apart itself and from its relation to official necessary coercion was coercion, to establish that a con- dispose should ever of the inquiry involuntary, fession was nor need we do so into constitutional "voluntariness.” however, here. recognize, The Court did 107 S.Ct. at 520. forms, many coercion takes subtle and its effect part can upon turn in particular mental 7. Before protections fifth amendment were condition of the states, defendant. apply held to separate to the line of Respondent correctly holding cases interroga- conclusion that court’s the Colorado versеd intelligently.” knowingly and Mi tarily, rights of his Miranda Connelly’s waiver at randa, 86 S.Ct. at 384 U.S. 1612. voluntary. not was appears that all Connel- it At first blush allegation that In this case there is no voluntariness, both ly addressed failed to the basic Spring understand pro- due of fourteenth amendment context guaranteed by the Fifth privilege indeed, waiver; and Miranda and cess any allegation Amendment. Nor is there impres- that initial closer examination upon consequences that he misunderstood Connelly Court out. The is borne sion speaking freely the law enforce- The only “voluntariness.” addressed sum, In think that the ment officials. we separate upon the not even touch Court did correct indisputably trial court was of Miranda a requirement that waiver made finding Spring’s waiver was “knowing intelli- and rights must also be knowingly intelligently within the and gent” because issue meaning of Miranda. Connelly that he understood conceded it— his Id., Thus, puts at Spring 857-58. his deci- rights consequences and the any speculation that Connel- an end to them. sion to waive “knowing any cast doubt on ly Court proper if for this Yet even it were intelligent” requirement. and the lines” of Con try to “read between acknowledged the The has also Court find no that the Court nelly, we indication “knowing intelligent” requirement and requirement that a hinted that even Illinois, Patterson v. 487 U.S. knowing and rights be of Miranda waiver (1988) and Ari- 101 L.Ed.2d 261 S.Ct. Indeed, longer valid. intelligent was no Roberson, v. 486 U.S. zona Moran, opinion upon Connelly relies (1988). L.Ed.2d 704 clearly that so prior term from the Court’s acknowledged the dis unequivocally and Supreme discussion of recent This brief vitality of and continued tinctiveness that a precedent leaves no doubt Court requirement. “knowing intelligent” and rights volun- must be of Miranda waiver majori Indeed, Connelly the Moran and Connelly, tary, that term is defined justices. composed of the same were ties “knowing and intelli- must also be state, apparent why the gent.” It is now 564, 107 Spring, 479 U.S. Colorado reflection, argu- its upon due abandoned (1986), case S.Ct. away with the Connelly did ment Connelly, the six weeks decided some after requirement. intelligent” “knowing and a waiver of again reaffirmed that Court we remain bound intermediate court knowing intel As an rights must be Miranda precedent unequivocal by the clear Writing majority same ligent. for the —the holding a waiver Miranda majority as that of Connel Moran knowing intelligent.8 be the discussion of must Powell framed ly—Justice opinion premise Judge Tjoflat’s (1964), central are left with two L.Ed.2d 653 courts wrongdoing, in addition to governmental is analyses: pre-Malloy law case voluntariness waiver, required constitu- to establish is invalid process regarding fourteenth amendment due is introduced where tional error fifth amendment Miranda waiver. and the uncoerced, intelligent knowing, without amendment fifth and waiver of sixth c. privilege. Mor of the Fifth Amendment Moran. telligent” return to Justice observed that telligent” requirement, Justice made nature of the and consider It may Discussing be requirement a full awareness both helpful to briefly the “the right being abandoned and waiver O’Connor’s pause for a moment itself. “knowing and in- “knowing and must have been Again, we opinion in O’Connor in- Amendment’s may not be randa against an v. S.Ct., —; 298] more fundamental: [84 Burbine, at warnings protect himself in L.Ed.2d 222 at 316-317, compelled to be a witness Oregon Elstad, guarantee is both ... any respect. (1985)]. S.Ct., A defendant privilege at -, The Fifth ^[1285] The ... [470 simpler Mi at ensuring suspect that he that a knows consequences of the decision to aban- Thus, Moran, at 1141. choose not to talk to law enforce don it.” earlier, rule that a officers, mentioned as we ment to talk with counsel intelligent” “knowing and must be talking waiver present, or to discontinue or intelli- not mean that was a wise does warnings ensure time. rather, choice; must gent the waiver knowing that a waiver of these understanding an of what is made with intelligent by the requiring that sus clear, being Connelly As makes waived. fully pect be advised of this constitution coercion, not in- police courts will absent privilege, including al the critical advice motive for waiv- quire into the defendant’s say may that whatever he chooses to be but, ing rights, Spring as Moran and against as evidence him. used show, require does the Constitution at 857-58. In determin- Spring, waiving he is the defendant know what valid, ing rights whether a waiver of is Indeed, consequences of his decision. therefore, only inquire a court need into very that is the reason behind Miranda whether the defendant understood that he ensures that a decision itself. Miranda right had a “not to talk to law enforcement rights, of his and of the defendant knows officers, present, to talk counsel consequences of his decision to waive them. talking time” or to discontinue observation, Having made that one fur- say may chooses to that “whatever he A need ther caveat is order. defendant against him.” The court used as evidence complexities all the of his not understand does not concern itself with whether the rights implica- and of the fifth amendment rights decision to defendant’s waive rights. those tions of a decision waive was the “better” choice. Rather, the defendant must understаnd guar- only the core of the fifth amendment III. opinion in Spring antee. Justice Powell’s gloss: is clear and needs no further urges The state that the district court failing erred in the state require does not that a to accord courts’ The Constitution suspect presumption and understand factual conclusions a of cor- criminal know rectness, every possible consequence required by of a waiver U.S.C. defendant, Judge Tjoflat, rights." (emphasis sup- asserts has the waive his Miranda "go step showing one further” than plied). burden to there was no valid waiver: “he must dem- Judge Tjoflat wrong requir- In our view is government something onstrate that did ing showing governmental misconduct in error, writes, may wrong." Governmental waiver, intelligent knowing the context of judge may by take one of two forms: err placing upon and in the burden the defendant confession, admitting objection, over "in the Judge to show that the waiver was invalid. face of evidence that there was no valid waiver Tjoflat is driven far his initial claim afield right of defendant’s fifth amendment to remain government something wrong that the must do present"; or silent and to have counsel "defense necessary predicate as a When, for constitutional error. counsel, acting government, as the causes the system justice in a criminal founded on admission into evidence of an invalid confes- adversary process, counsel is character- by failing sion to render effective assistance ... defense "acting government,” analysis ized as providing judge as the in not concluding the trial a basis for validly subjected scrutiny. that the must be careful defendant did not is Although retardation was an Smith’s 2254(d).9 agree with We § proceeding, the of correctness at his state habeas presumption that the sue court in this issues to the central order reveals that the inapplicable is habeas court’s state course, question of the ultimate case. Of of voluntariness conflated issues of his validity suspect’s waiver of a knowing and failed to focus waiver “ legal re question ‘a separate issue sufficiently on the determina quiring independent an federal intelligent waiv ability to make an Smith’s ” Smith, 820 F.2d Lindsey v. tion/ addition, state habeas er. Cir.1987) (quoting Miller v. Fen the defendant’s relied on evidence as to ton, to understand competency to stand trial: (1985)), fact on not an issue of L.Ed.2d 405 him, against in his de charges assist of correctness presumption which fense, consequences and understand the court. a state apply to a determination adjudicatiоn guilt. Those characteris Nevertheless, 2254(d). we 28 U.S.C. § Cf. however, competency, tics of are distinct court was also cor that the district believe necessary from the mental acumen to under concluding that on the occasions rect in comprehend one’s stand opportunity the state courts had where waiving them. The state ramifications of findings regarding Smith’s make factual inter appears court also to have his waiver of Mi mental retardation and controlling Georgia hold preted cases to rights, they failed to do so. randa mere existence of a defendant’s that the put had Despite the fact that Smith more,” limitations, does mental “without claiming the that he was state on notice incapable of not render the defendant waiv knowingly and intelli- confession was See, e.g. ing constitutional Donald gently given, the state trial court 186, 242, State, 249 Ga. 289 S.E.2d son v. motion made no suppression heard Smith’s (1982); State, Ga.App. 161 Parker v. findings retardation factual about Smith’s (1982). 478, 297, If 288 S.E.2d capacity to waive his or its effect on his these court extracted from state habeas regarding facts rights, nor were material proof of a cases a constitutional rule during developed Smith’s retardation limitations would al defendant’s mental no hearing.10 The state trial court made to ways legally insufficient establish be findings on the issue Smith’s factual waiver, the rule is inconsist invalidity of a knowing intelligent sufficient to and waiver approach required by ent with flexible 2254(d) presumption merit the section Zerbst, v. Johnson Sain, 372 Townsend v. correctness. See at 1024.11 745, 757-58, 293, 313-14, Thus, reviewing proceedings after (state (1963) court must actual- L.Ed.2d 770 court, conclude the state habeas we pre- before issues of fact for ly reach and decide finder “it is unclear whether state apply). sumption of correctness to limitations, any procedural mental which would argued show Smith’s 9. The state has not raising impaired waiver of Miranda an effective prevents this claim. bar Smith appeal know- to the issue of his Smith’s failure directly ing intelligent does not bar and waiver doing collaterally. given great weight See O.C.G.A. previously him from so to a 11. We have 9-14-42(b) relating (“Except objections concluding to § mental retardation defendant’s grand jury, rights composition rights of a or trial in constitutional that his waiver of See, Griffin, of the e.g., Cooper conferred or secured the Constitution 455 F.2d valid. Cir.1972) (5th (binding precedent to have been United States shall not be deemed under Prichard, that there was an City unlеss it is shown waived Bonner Cir.1981) (in banc)). relinquishment (11th abandonment of intentional or Dunkins v. But cf. Cir.1988) right privilege, was done or which Thigpen, a known F.2d 398-99 intelligently.”). voluntarily, knowingly, (mental defen did not invalidate retardation rights, light of testi waiver of Miranda dant’s difficulty mony commu defendant had no Although evidence before the trial psychiatric report nicating complete counsel and was far from as to Smith’s retardation judg concluding adequate objec- had that defendant over the confession was admitted when ment, span). tion, insight, memory, tending and attention in the record there was evidence explained I applied carefully correct constitutional standards to him. What can't claim_ on, there, comment I wasn’t disposing of the Since the deci because him, carefully explained how it was upon rest sion of the state trier of fact this, they unless how slow went with an error of rather than an adverse law very patiently slowly, this was done facts, hearing determination of the [was] I don’t the intellectual believe has compelled to ascertain the facts.” Town capacity to what it would Sain, understand send v. 372 U.S. at 83 S.Ct. at mean to him. 757-58. We therefore affirm court’s conclusion that the state courts had court, questioning Under from the district specific findings not made factual as to Kuglar repeated his conclusion that “it Smith’s of his whether waiver very person would unusual “knowing intelligent.” had been IQ intelligently appreciate be able doing he is what when Miranda above, As we noted the district court Kuglar are him.” read to further testified hearing evidentiary held an to determine that Smith had low verbal abilities “knowing whether Smith’s waiver was difficulty understanding have had intelligent.” The state chose not to chal- language warnings. of the Miranda lenge any expert regard- of the testimony Moreover, although Kuglar did not believe ing Instead, Smith’s mental retardation. that Smith would have confessed to com- witness, expert the state’s sole who had done, mitting Kuglar an act that he had not Smith, disagreed never examined with the sufficiently sug- did think that Smith was experts who testified on Smith’s behalf gestible fairly easy that “it would be generalized light on certain issues. In exactly moderate this man in the lines of essentially of the uncontradicted evidence you might say what want him to if it was regarding specific Smith’s mental retarda- general area of what had occurred.” tion, findings the district court’s are not Kuglar’s conclusions were confirmed clearly erroneous.12 reported Dr. Fisher. Fisher that when he Kuglar Dr. testified that Smith had a psychological Smith, conducted tests on age mental of 10 intelligence or “you repeat everything give had to quotient (IQ) approximately placing questions extremely slowly.” to him Fish- percent Smith in the bottom two complete er was unable to a Minnesota population. According Kuglar, to Multiphasic Personality Inventory test of individual’s intellectual limitations [T]his Smith because Smith did not have the sixth- seriously question this whether man un- eighth-grade reading ability to necessary to consequences derstood the confessing take “you the test. Fisher believed that and whether or not he understood what go giving to have about the infor- [Smith] rights his are. In our work with this mation in that waiver much [Miranda ] man, you very patient had to be slow and words, carefully; more in other he comes describing things certainly to him. It understanding with a deficit of so that appeared my to me both evaluation you overcompensate have to through a testing of him and his that he understood explanation careful of all the terms and doing what he confessing, was was but I reading slowly things it and other that will don’t believe the man had an intellectual compensate handicap.” for that Fisher appreciation of what this confession agreed Kuglar that Smith was seri- him, would mean to I nor do think most skills, ously deficient in verbal and he con- people IQ range that, with an in this would suggestible firmed because Smith was appreciation an very have unless it was perceived and would do what an authori- habeas, waiver, knowing intelligent In federal district court the state did related to argue not that presented evidence before the trial includes the evidence in the state ha- judge comprised proceedings attempt the entire record for review of beas in an to bolster their issue, brief, the decision on the presented expert post-hearing waiver rather claim. In the state’s second post- Connelly argue witnesses. In its first the state relies on to that the brief, hearing the state canvaes the evidence issue is voluntariness and the absence of capabilities they police the defendant’s mental as coercion. if warnings” understanding the Miranda do, have “you him to figure would want ty They testified slowly. explained they he’s were make sure doubly careful to to be proposition, of that the inverse understanding Miranda waiver] really [the capable of under- not be charac- would dependent Smith showing his just and not they not warnings if were standing in stressful authority figure a to an teristic state’s' conclusion slowly. The explained situation.” ex- from the necessarily follow not does general dispute does not state The experts re- Although the testimony. perts’ mental limita- suspect’s a proposition mentally retarded a the notion that jected capacity his can interfere tions to make an be able suspect would never of the Miranda intelligent waiver make not rights, they did intelligent waiver court, argument rights. At oral before Smith give their assurance himself instanc- that in some volunteered the state validly “fully capable” have been would suspect may be capacity mental es the under even waiving the Miranda go police “to require the as to so limited circumstances.14 ideal suspect that the step” to insure extra merely rights. state his The understands testimony arguably Second, Dr. Fisher’s into this does not fall posits that Smith that, situation in given the stressful implied fact to no points state category. Yet the himself, not Smith could found Smith which clearly erroneous it was suggesting that intelligently even if his waived was to find that Smith court district him care- explained to rights had been require slow mentally retarded so phenome- explained the After Fisher fully. of his instruction careful mentally which non of “shock response,” commonly experience Petitioner’s argues that “the persons state The retarded Petitioner stress, testified that experts they own encounter when understanding the Mi- fully capable of asked, you feel that [Smith] court “[D]o given in a they if were warnings degree that he randa retarded to such by the Petitioner’s recommended right fashion his intelligently waive could witnesses Neither of the “Right. witnesses.... counsel, replied, Fisher etcetera?” before for the Petitioner who that, testified to take I like testify to I did If present either when say, my [was] back, I mean what because or actually gave statement Petitioner stress he could is that with excessive belief credibility court, judging the the trial when un- Smith was Fisher believed not." witnesses, the Jackson-Den- held girl- his the loss of stress from severe der say for hearing.... Neither could no13 he killed and his car even friend giv- warnings were the Miranda fact that stress, “confu- Turner, Smith’s and that Petitioner could which the en in a manner disorientation, sion, need for direction” not understand.” commission exacerbated were incarceration over- crime, flight, and his in three argument flawed state’s communi- county without night in another First, experts did not respects. Smith’s family.15 from his capable of cation “fully would be statе that Smith disregard argues should Denno, we state 15.The U.S. v. See Jackson testimony because the state habeas (1964) (when Dr. Fisher defendant 12 L.Ed.2d affidavit, confession, court, implicit- pro- Dr. which had Fisher’s challenges due voluntariness to Dr. independent ly adverse make made an determination requires cess rejected voluntary credibility Smith’s Mi- be- it is Fisher's when that confession determination Although jury). disagree. the credi- claim. We permitting it to be randa heard fore determination bility is a factual of a witness presump- accord a courts must which federal testify the Miranda if Fisher did 14. Dr. § 28 U.S.C. carefully of correctness under slowly in a tion warnings and "were read rejection Mi- of Smith’s situation, court’s compre- yes, state he could non-stressful hend words, comprise necessarily a re- did not knowingly randa claim willingly other and and —in Rather, credibility. carefully the state ability.” jection Fisher of Fisher’s he had that situations, may rejected claim because it response Smith’s court non-stressful limited which, interroga- law to Smith’s post-arrest applied rule of opinion, an erroneous in his Furthermore, how the state we fail to see claim. was not. tion Third, reading prior experience a fair of the record indi- tion that espe- Deputy cates that Sheriff Smith and Cartee cially helpful person’s to a retarded under- explain rights peti- did not Miranda standing rights: of constitutional slowly carefully. tioner At the Jack- Q: your experience, you do find that hearing, son-Denno Sheriff Smith testi- repeat knowledge- ‍‌‌​‌​‌​​​‌‌​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌‍offenders are more fied, rights “We read his to him. We asked all, regarding, able first of sys- the trial him did he understand them. He said he you any tem? experience Have had with did, signed it....” Sheriff Smith that? stated, also “I [petitioner] believe the read I experience A: have had some with rights form],his self. I asked him did [the that, true; and to some extent that’s to a he understand it he said he did.” Con- lesser, extent, any per- much with a if absence, view, spicuous by its our is retarded, obviously, you son who is Deputy hint that Sheriff Smith Cartee know, you you classify didn’t it didn’t— “doubly ensuring pe- were careful” in just people, retarded so for that whole rights, titioner particularly understood his group, yes, experience, one learns from as Sheriff Smith testified that the entire they’ve through so if process been process securing Smith’s waiver and ob- before, they are more with it. familiar taining his thirty confession took “not over Thus, reviewing record, after can- we longest.” minutes at the say not the district court’s factual argues The state previ also that Smith findings regarding Smith’s capacity mental ously charged had burglary been are clearly erroneous. Given forgery by Sheriff Smith and thus had ex findings court’s factual that because of perience justice with the system criminal Smith’s mental retardation he could not apprise meaning sufficient to him of the rights understand his they Miranda unless warnings. The state thus slowly had been and carefully explained to distinguish seeks to Cooper this case from him, finding and the that no such explana- Griffin, (5th Cir.1972), 455 F.2d 1142 made, tion was we would affirm the district which teenage boys involved two retarded court’s conclusion that Smith’s waiver of prior experience without with the criminal his Miranda was not valid because process. agree We with the state that “knowing intelligent.” prior experience justice criminal be relevant in determining whether a waiv IV. er valid, of constitutional is see Fare C., We next 707, 725, consider whether Michael the introduc 2560, tion of Smith’s (1979), L.Ed.2d confession was harmless but we find no error as to “If, evidence on the Smith’s upon record to convince conviction. prior prosecution reading record, us that the its of the trial appellate Smith was particularly important firmly in this convinced case. The that the evidence state guilt offered no testimony to was so overwhelming rebut that the trier deeply pessimistic opinions of of fact would Smith’s ex have reached the same result perts about capacity Smith’s evidence, without understand the tainted then there is Indeed, waive when coun prejudice insufficient to mandate the invali questioned sel for the state Dr. Fisher on dation of the Cape conviction.” v. Fran issue, Dr. cis, Fisher resisted sugges- Cir.1984), F.2d 1294-95 twice, habeas court could have made a occasions, decision on on two different did he want credibility gave Fisher’s when Fisher no, never attorney oral and he said he did not.... He testimony. previously expressed We simply was ment, asked did he want to make a state- credibility doubts as to whether a determination gave and he us the full statement which fairly paper can be Agee made on a record. See signed.... was written down and he After the White, 1487, 1494 (11th Cir.1987). v. 809 F.2d n. 3 complete, statement was I first read it back to given him. Then it was to him to look over 16. Deputy testimony Cartee's at trial was to a signed before he it.... He read it and said he willing similar effect: "He said he was to talk. understood it." fact, him, In Sheriff Smith asked I believe it was

1435 281, denied, 911, 1260, (1983);17 106 88 103 S.Ct. 75 L.Ed.2d 487 cert. 474 U.S. S.Ct. (1985). State, 245 403, L.Ed.2d Parks v. 686, 254 Ga. 330 S.E.2d State, (1985); v. Patterson 696 239 Ga. overwhelming The district court found 409, 2, (1977). 238 S.E.2d 8 The trial support conviction for evidencе to Smith’s jury this case instructed The court noted that Smith con- murder. killing to Willie Robinson and ingredient” fessed kill “necessary intent to was a to the circumstances of that Smith testified to the crime of malice murder.18 Certainly the crime trial. there was Because Smith conceded that he commit overwhelming evidence that Smith killed “the essential ele killing, ted the actual Turner; disputed point. Smith never ment” of the crime was his intent to kill. charged slay- Turner’s Smith was not Kemp, Brooks v. 1383, 762 F.2d 1393 Cf. however, ing, of mal- but with offense (11th Cir.1985) (en banc), vacated and re analysis murder. The harmless-error ice consideration, manded 478 for further requires consideration of the elements of 1016, 3325, U.S. 106 92 S.Ct. L.Ed.2d 732 murder, charges jury, malice to the remand, (1986), reinstated on 809 F.2d 700 possible existence of lesser included denied, (11th Cir.) (en banc), cert. 483 offenses, U.S. proof as well as the amount of 1010, 3240, (1987); adduced at 107 trial. 97 L.Ed.2d 744 Balkcom, v. Mason 669 F.2d at 227. We Georgia crime defines the of malice mur- must therefore focus on whether the erro der as follows: neous admission of Smith’s confession con (a) person A commits the offense of mur- jury’s tributed conclusion that Smith unlawfully malice der when intended to kill Turner. aforethought, express implied, or either causes the death of another human be- involving burden-shifting In cases in ing. kill, structions on the issue of intent to we (b) Express malice is that deliberate in- have stated that “a defense of accident or unlawfully tention to take the life of only places lack of intent not the element being another human which is manifest- issue, substantially of intent in reduces by capable ed external circumstances against the extent to which evidence proof. implied Malice shall be no where defendant can considered to be be ‘over provocation appears, considerable ” Montgomery, Carter v. whelming.’ 769 killing where all the circumstances of the 1537, (11th Moreover, Cir.1985). F.2d 1541 malignant show an abandoned and heart. carry pro confessions ‘extreme “[b]ecause O.C.G.A. 16-5-1. Several decisions of § weight,’ bative the admission of an unlaw Georgia this court and the courts establish fully rarely obtained confession is ‘harm that intent to kill is án essential element fact, less error.’ we have ruled the See, e.g., the crime of malice murder. admission an unlawful confession is Jernigan, Lamb v. 1332, 683 F.2d 1336-37 instances, harmless in limited such as denied, (11th Cir.1982), 1024, cert. 460 there in evidence at least one where 1276, (1983); Ma Balkcom, other lawful confession son v. 222, defendant.” 669 F.2d Cir. denied, Florida, 1982), 1016, Christopher cert. v. 836, B Unit 824 F.2d Securities, Inc., Reynolds equivalеnt 17. In Stein v. state of mind is sometimes the of a 33, (11th Cir.1982), adopted kill,” State, this circuit specific Myrick intent to 34 S.E.2d binding precedent decisions issued Unit B (Ga.1945) may satisfy and thus the re- September the former Fifth Circuit after quirement malignant of an “abandoned and (1968). heart.” 40 AmJur.2d Homicide § 51 jury The trial court did not instruct on this separate Georgia 18. A line cases holds that murder, charged jury theory of but rather proven by malice murder circumstances that intent to kill was an essential element of disregard which demonstrate a reckless for hu Nor did the trial court instruct malice murder. life, see, State, e.g., Flynn man Ga. theory felony jury on the murder. State, (1986); S.E.2d Cf. Walden v. 16-5-l(c). O.C.G.A. (1983), § 475-76 un Ga. 307 S.E.2d theory der the ‘‘[a] wanton reckless 1436 — U.S. -, Cir.1987), denied,

(11th that Turner intended to hit him with the cert. 1057, (1988).19 though 98 L.Ed.2d 1019 hammer. Even Turner’s 108 S.Ct. back was time, ap- to at the Turner’s turned Smith case, improper In admission of (to Smith) parent intent to use the hammer might confession have made a con- Smith’s might passion have aroused “sudden in the Smith's confession to siderable difference. killing that, person so than defend- rather only “direct” police evidence himself, attacker, ing willfully kills the intended kill the state that Smith for aforethought, albeit without malice when it stand, denied intend- Turner. On the Smith necessary was not for in order him do so Turner, ing testimony, his trial if to kill protect State, Syms himself.” 175 confession, by illegal uncontradicted 179, 689, (1985). Ga.App. 332 690 S.E.2d jury might that Smith have convinced danger “The fear of some can be sufficient only intended to harm Turner. Accord provocation passion necessary to excite the Alabama, 586, (11th Owen v. voluntary manslaughter.” for Id. Cir.1988)(illegally admitted harmless error in Alabama murder convic- This is in Syms, case similar to which the tion, as defendant’s intent to kill was pointed gun defendant, victim at “poignantly only evident in his confes- exciting thereby passion a sudden sion”); Balkcom, Mason v. 669 F.2d at cf. defendant, but the defendant shot the vic- (claim implicit- of self-defense does not glanced away, sug- tim when the victim kill, ly concede intent to because one can gesting justi- that the defendant was not self-defense”). “shoot to in wound fied in his use of A force.20 case even addition, given State,

In the account Turner closer to this is Ga.App. White supported (1973). White, at trial could well have a verdict 199 S.E.2d voluntary quarreled on the lesser included offense of victim with and threatened the manslaughter rather than malice murder. defendant and “reached toward the back law, Georgia person article, Under “a commits the seat his for some unknown [of car] voluntary manslaughter offense of when still in sitting but was his vehiсle some yards defendant, he causes the death of away standing another human be- when the ing son, under circumstances which would oth- suddenly caught up behind a shot- solely gun erwise murder and if he acts point and fired blank deceased.” sudden, violent, the result of a Id., irresisti- 199 S.E.2d at 625. In Syms both passion resulting White, provoca- Georgia ble from serious Appeals Court of held passion tion sufficient to excite such in a that the trial court was correct to instruct person.” 16-5-2(a). jury reasonable O.C.G.A. on the lesser included offense of § grab- voluntary manslaughter Smith testified that he saw Turner in addition to the bing hammer, holding or at least a ham- crime of murder and found that the evi- mer, after touched Turner supported Smith on the dence guilty a verdict of for manslaughter.21 shoulder. Smith could well have believed law, Christopher, Georgia person justified 19. In we noted that we have also 20. Under in using against force another ruled the unlawful admission of a confession to when he rea- sonably necessary believes that such force is physical be harmless when there was direct evi against defend the other’s imminent use 24; of un- see, guilt. e.g., dence of 824 F.2d at 846 n. lawful force. See § O.C.G.A. 16-3-21. Under Estelle, Harryman v. F.2d 876-78 Syms, might the facts of the defendant not have Cir.) (en banc) (unlawfully admitted confession justified believing been that the victim’s use person that condom found on defendant's con of unlawful force was imminent. light laboratory tained heroin harmless in substance), denied, identifying tests cert. jury The trial court did not instruct Smith’s (1980). U.S. 66 L.Ed.2d 76 voluntary manslaughter. alleged Smith course, Harryman, Of ‘"intent,’ this case is not like petition corpus for habeas that this omission nature, very proven its cannot be deprived process, him of due and that defense evidence, by direct unless the defendant ex failing request counsel was ineffective for pressly Kemp, states his intent.” Brooks v. Alabama, such an instruction. See Beck v. (Kravitch, J., concurring part F.2d at 1423 (1980). dissenting part). The district court did not address this claim.

1437 conclude thought, We the that admission do not we find the evidence of guilt Smith’s not harmless to overwhelming as Smith’s so as to render his conviction for malice murder. There- of the admission confession harmless. fore, we would hold that Smith is entitled to relief from his for conviction armed rob- V.

bery. provided Smith’s confession prosecution damning with evidence that The district court concluded that the in- Smith attacked Turner to obtain for money troduction of Smith’s confession was not a testimony new car. Smith’s trial tended death, harmless sentence of not- establish, howеver, to that he did not form ing that Smith’s trial testimony was “sub- money intent to take from Turner’s stantially sympathetic” more than Smith’s register and cash wallet until the attack confession. The state does dispute not that completed. Turner was If the jury be- the district court’s conclusion is correct un- testimony, lieved Smith’s they could not der the familiar analysis “harmless error” have convicted him of armed robbery. Chapman California, 18, 24, v. 824, 828, (1967). Linahan, Woods 648 F.2d 973 Cir. Rather, the state contends that we should 1981), B June Unit is instructive apply the stringent more prob- “reasonable case, regard. that Dessie Woods and ability of different employed result” test Cheryl Todd hitchhiking were from Reids- for claims of ineffective assistance coun- ville, Georgia to they accept Atlanta when sel, see Washington, Strickland v. ed a ride from Ronnie Horne. Woods shot 668, 694, U.S. 2052, 2068, Horne trying while fend off a sexual (1984), L.Ed.2d 674 or that we should not killing Horne, assault. After Woods engage in analysis harmless error at all if pocket reached into Horne’s and removed we conclude that the evidence was suffi- wallet, $120, containing to finance the support cient to jury’s finding of an back to trip Atlanta. Woods was convicted aggravating circumstance. voluntary manslaughter and armed rob bery. This court sustained Woods’ convic argument state’s is without merit. for manslaughter tion but held that term, Supreme Last Court confirmed evidence was support insufficient to her that Chapman governs standard harm conviction for robbery. armed We noted less error as to a sentence of death. The law, Georgia under person “a commits pointedly Court any implication disavowed when, (1) armed robbery intent apply “sufficiency we should theft, (2) commit he takes property of an evidence” question standard instead: “The from person other or the immediate legally ... whether the not admitted presence another, (3) by use of an offen support evidence was sufficient weapon.” sive Id. at We concluded sentence, was, death which we assume the record was devoid of evidence rather, but proved whether the State has showing that the defendant “used the ‘beyond a reasonable doubt that the error weapon or shot the victim in order rob complained of did not contribute to the ” added). his money." (emphasis him Id. Texas, verdict obtained.’ Satterwhite 1792, 1798,

To U.S. obtain a robbery conviction armed (1988) Georgia, (quoting Chapman, L.Ed.2d prove must state 828). agree defendant used an 87 S.Ct. at weapon offensive We in or- der to rob the money. victim of his A that the considerable dif jury concluded, rational could ference between the tenor of Smith’s con including circumstantial evidence fession that of testimony the state his trial crime, Turner’s ‍‌‌​‌​‌​​​‌‌​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌‍store impossible after the makes it beyond conclude Smith attacked Turner “in order to improperly rob reasonable doubt that the ad him,” in light of Smith’s testimony mitted confession did not influence sen suggesting that theft tencing jury. was an after- having abandoned court, been apparently argu- persuasive raises Judge Tjoflat ought We need not off, by the state. he races with which The baton

ments. it now. resurrect long ago by the however, dropped was entire in the has never The state state. district court affirm the We collateral appeal or direct course of habeas granted the writ that it extent argument proceedings raised and of death sentence to Smith’s corpus as The state up. now takes Judge Tjoflat writ as to it denied insofar reverse arguments its and its defenses selected convictions. Smith’s accept the ramifications appeal, and must a is not of claims Waiver of those choices. only to detriment

principle works state failed Here the petitioners. on the judge, based trial argue that the minor, PITTS, by his Eugene a Willie him, no committed then before evidence friend, Mae Mrs. Anna and next mother The admitting the confession. error minor, by Martin; PITTS, his a Victor presumption of argued the state instead friend, L. Mar Robert next father and findings and attaching state correctness Alfred, Orma, Felicia, Kelvin, tin; psychiat- the merits then addressed minors, Henderson, by their Alfredia not been testimony which had ric friend, Rebecca next mother Moreover, in the judge. state trial Reeves, Henderson, Joyce a Patricia during federal habeas district court friend, minor, by next mother and her evidence argued that the adduced state Reeves; Anthony Reed Lee Rosa Mrs. insufficient hearing was court minors, by Searcy, their and Cecilia to show friend, Juanita Mrs. and next mother given. intelligently knowingly and not minors, Stone, Becky Searcy; Ned and during habeas state state Nor did the friend, Alfred by father and next their psychiatric evi- object to the introduction Jr.; Stone, Joy, Bridget and Sandra E. only proper grounds that dence on the Becker, minors, by father their before the was that record to be considered Becker; friend, Monica Louis E. next Furthermore, in the state’s judge. trial minor, Rocker, by father and next her a filed state post-hearing brief Rocker; friend, John “Rock” Arthur argue continued to the state proceedings, Smith, minors, by and Devett Johnson voluntarily had been that the confession friend, Eun next Ms. mother and their deputy’s merely relied on the given, Prather, minor, Smith; Frankie ice A. appeared testimony the defendant had friend, Cynthia by guardian and next rights. The order issued to understand friend, Scott, next her father and that the asserts by the state habeas Mills, minor, Scott; Major Princess Smith’s finding of fact that judge’s friend, Roger by father and next her voluntarily made” “freely waiver was Wharton, Mills; Anthony a mi Mark issue, The supported by the record. nor, friend Dor mother and next however, was made is whether the waiver Patillar; similarly sit and all others knowingly intelligently. Cross-Ap uated, Plaintiffs-Appellants, pellees, pained at the Judge Tjoflat is No doubt litigate potentially ad- state’s failure Plaintiff, Johnson, Intervening Ann T. claim, vantageous should second-guess and strate- the state’s tactical Ly FREEMAN, Superintendent, argument gic advanced Robert decisions. Travis, Howard, and Phil Norma Judge have merit. It was man Tjoflat well County Board of Gregor, DeKalb not, however, Mc argued or before this briefed notes and 8. The infra claim, part, 7.Petitioner’s in relevant was as contention, however, overwhelming focus of his follows: question was on the knowing of whether the waiver court-appointed attorney Petitioner’s Keeble intelligent, given his limited men- reasonably failed to effective assist- render tal abilities. petitioner virtually every stage ance to be- Actually, petitioner requested fore, trial, since relief as to during and after with the result both his conviction and his sentence on the that his conviction and sentence of death claim, appeal basis of each the contention that he did were obtained and affirmed on in vio- pf underlying right guaranteed petitioner’s not waive his Miranda was an lation The first and element claims: second Sixth ... and Fourteenth Amendments to the four challenged claims the effectiveness of trial Constitution of the United States. respect petitioner's counsel with to conviction sentence; respect pro pretrial suppress and with to his death the third Keeble’s forma efforts challenged petitioner's post-arrest po- and fourth claims the introduction while in confession 14H petitioner s failure, no evidence before tional witnesses attest judge had intelligence; and counsel would suggest petitioner’s waiver was limited him to effectively cross-examinеd more consequently petition- denied not valid law enforcement officers who testified suppress er’s motion to his confession. two interrogation petitioner’s about According petitioner, his counsel was was, confession. As it counsel failed even following ways. Al- ineffective given argue petitioner had not though recognized petitioner counsel short, knowing intelligent waiver. below-average intelligence, counsel was of simply bring counsel did not the issue of matter; investi- pursue failed to routine petitioner’s retardation and its effect on gation have disclosed the extent of validity presiding of his waiver retardation and would have judge’s attention. ability to make a raised doubt about knowing intelligent Had coun- The second claim based on waiver. capac- contention that he lacked the mental sel understood extent retardation, ity knowing intelligent have taken to make a waiv- counsel would suppression judge hear- er should have more active role at the put petitioner on him ing: counsel would have discerned the evidence before testify witness stand to that when the was retarded and could not have waived his Miranda police questioned rights; him he did not under- there- fore, stand the warnings police admitting peti- had the trial erred in him; called addi- given counsel would have tioner’s into evidence.8

Notes

notes process that as evolved that the due re- tors have quirement turned to more subtle forms of fourteenth amendment barred psychological persuasion, using courts have the state involuntary found confessions in the mental condition of the prosecutions. defendant a more criminal Now that it is clear that significant factor in the "voluntariness” protection calcu- fifth against amendment com- lus. But fact justify does not pelled states, a conclu- applies self-incrimination condition, sion that a defendant’s Malloy Hogan, mental of the two dis- in terms require waiver Miranda obviously no reason is “[t]here had inquiry that Justice O’Connor dimensions way tinct ‘voluntariness’ more Although clearly than in the articulated Moran. waiver context so the Miranda point, con- Justice seem to belabor the Amendment Fourteenth id., applied text,” unequiv- language is so direct Powell’s amendment attention: developed in its fourteenth it merits our careful ocal that rule issue. waiver analysis to suspect purpose, a with this Consistent no coercion Thus, there been because had privi his Fifth Amendment may waive police, the Court re- part of the on the made volun lege, “provided the waiver

Case Details

Case Name: William Alvin Smith, Cross-Appellee v. Walter Zant, Warden, Georgia Diagnostic and Classification Center, Cross-Appellant

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 4, 1989

Citation: 887 F.2d 1407

Docket Number: 88-8436

Court Abbreviation: 11th Cir.