Evans v. Birtton (472 F. Supp. 707, 1979)

MEMORANDUM OPINION

HAND, District Judge.

The petitioner, presently incarcerated on death row at Holman Prison Unit under a death sentence imposed by the Circuit Court of Mobile County, brings this action seeking habeas corpus relief from such sentence pursuant to Title 28 U.S.C.A., § 2254. The facts leading up to the conviction of the petitioner have been set out by the Alabama Court of Criminal Appeals in Evans v. State, 361 So.2d 654, 655-62 (Ala.Cr.App.1977), and need not be repeated here. The petitioner was convicted of capital murder by a jury in the Mobile County Circuit Court on April 26, 1977 and, following a presentence hearing on April 27,1977, the trial judge accepted the death penalty sentence returned by the jury. In October of 1977 the conviction and sentence were affirmed by the Alabama Court of Criminal Appeals, id., and these decisions were affirmed by the Supreme Court of Alabama in May of 1978. Id. at 666. Evans filed a petition for a writ of certiorari in the United States Supreme Court on November 16, 1978, but the petition was denied on February 21, 1979. Evans v. Alabama,-U.S.-, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979) (Marshall & Brennan, JJ., dissenting). On March 1,1979, the Alabama Supreme Court entered an order requiring that Evans be executed in accordance with the sentence on April 6, 1979. On April 5, 1979 the United States Supreme Court, through Justice Rehnquist, stayed the scheduled execution in response to a next-friend application for habeas corpus filed by petitioner’s mother. Evans v. Bennett, - U.S. -, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (Rehnquist, J.). This stay was later dissolved by a unanimous vote of eight members of the Court. Evans v. Bennett, - U.S. -, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979). The Alabama Supreme Court set a new execution date of April 27, 1979, which was stayed by this Court on April 20th pending the final adjudication on the merits of the habeas corpus petition presently before the Court.

The petitioner sets out two general grounds for habeas relief: the trial judge erred in failing or refusing to instruct the jury in his case on the elements constituting a prima facie case of robbery; and the Alabama death penalty statute under which the petitioner was convicted and sentenced is unconstitutional. The Court is convinced that jurisdiction properly lies in this Court to consider these issues pursuant to Title 28 U.S.C.A. § 2254.

I.

The petitioner contends that the trial judge’s failure to instruct the jury on the elements of robbery violated his right to due process of law. There is no question but that the jury was not so instructed, the oral charge of the trial judge reading in pertinent part as follows:

The charge against the defendants is that they did unlawfully, intentionally, and with malice aforethought, kill Edward Nassar during the course of a robbery. The law of Alabama provides that anyone who, during the course of a robbery, intentionally kills the victim, is guilty of this offense, and the punishment for this offense is death by electrocution. . Now, the State must prove that [the defendants] intentionally killed Mr. Nassar. Unless there is an actual or positive intent to kill, they are not guilty of the crime with which they are charged. The intentional killing is a willful killing, an act governed by the will of the individual committing the same. The indictment further charges that they committed the act with malice. Malice means hatred or hostility toward another. It doesn’t necessarily mean a personal ill will. When associated with murder, or a killing of this kind, it means an unlawful act, willfully done, without just cause or legal excuse. It is that mental state or condition which prompts one to do an unlawful act without legal justification. It has also been defined as that condition of mind which shows a heart, regardless of social duty, totally bent on mischief.

(Transcript, pp. 223-24). Evans and his co-defendant, Wayne Ritter, had three attorneys representing them during this trial. None of these attorneys raised any objection to the oral charge given the jury by the trial court.

Evans’ indictment charged that he violated section 13-ll-2(a)(2) of the Alabama Code of 1975, which provides, in pertinent part, that:

(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:

(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant. .

The petitioner contends that the trial judge’s failure to instruct the jury on the elements of robbery before they considered his guilt or innocence on the charges constituted a violation of his due process rights, arguing that in order to find the petitioner guilty, it was incumbent upon the jury to find beyond all reasonable doubt that a robbery and an unlawful killing had taken place. And, of course, the due process clause protects criminal defendants from conviction in a case where there has not been “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970).

In most cases it might be proper for an Alabama appellate court to reverse and remand a conviction under the statute for failure to give such an instruction, since there is no question but that no defendant should be convicted by a jury that has not been fully charged on all elements making up the crime charged. The instant case is rather unique, however, in that the petitioner had pled guilty, voluntarily and with full knowledge of his Boykin rights, on four separate occasions, at least once before the jury, in that counsel for the petitioner raised no objection to the court’s failure to so instruct, and in that this case is in this Court by means of collateral attack rather than direct appeal. This Court is of the opinion that the trial judge erred in failing to instruct the jury on the elements of robbery, but that such error was harmless or in any event did not result in any fundamental unfairness. See Bradley v. Wainwright, 561 F.2d 1200 (5th Cir. 1977). It cannot be said under the evidence presently before the Court that a properly charged jury might have reached a different verdict, e. g., Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), so it is quite clear that no constitutional error justifying habeas corpus relief is present.

Even if the Court were persuaded that the trial court’s failure to instruct the jury on the elements of robbery amounted to a violation of the petitioner’s due process rights, habeas relief would be foreclosed by the petitioner’s admitted failure to raise a contemporaneous objection at trial to the omitted instruction. Clearly petitioner and his admittedly competent counsel were given the opportunity to object to the purportedly erroneous omission. Under Alabama law as it stood at the time of this trial, no defect in an oral charge was to be reviewed on appeal unless a timely objection had been made. E.g., Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977). While the rule has recently been relaxed by an amendment to Rule 39(k) of the Alabama Rules of Appellate Procedure that permits the Supreme Court to note any plain error in the proceedings, the prior rule is applicable to this case. Of course, the fact that direct appeal is barred does not preclude this Court from considering the issues on a habeas corpus petition, but it is incumbent upon a party that has violated a state contemporaneous objection rule to make a showing of cause for or prejudice from the procedural default before the procedural default may be waived in federal court. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, 608 (1977); Spinkellink v. Wainwright, 578 F.2d 582, 591-92 (5th Cir. 1978). In the instant case the only cause for the procedural default is the conclusion of the petitioner’s trial counsel that no instruction was necessary, and there is simply no evidence that counsel was incompetent or inadequate. In addition, there is no prejudice at all flowing from the procedural default since there is little if any likelihood that any other verdict would have been reached by the jury. Accordingly, the Court is of the opinion that habeas relief is not available to the petitioner herein for the trial court’s failure to instruct the jury on the elements of robbery.

II.

The second portion of the petitioner’s habeas attack challenges the propriety of the Alabama Death Penalty Statute on various constitutional grounds. The petitioner raises seven specific constitutional objections to the Alabama statute, each of which is considered separately below by the Court.

Before considering the petitioner’s various challenges, it is necessary to review the Alabama statutory scheme for the imposition of the death penalty. The Court notes at the outset that the Alabama statute was enacted in 1975, after the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), but prior to the 1976 death penalty cases of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The Alabama statute permits jury imposition of the death penalty for seven specified cases of felony murder, for murder of any peace officer while on duty or because of some official or job-related act of such a peace officer while on duty, for murder committed while the defendant is under a sentence of life imprisonment, for first degree murder for remuneration or pursuant to a contract, for murder resulting from the intentional killing of a person by willfully setting off or exploding dynamite dangerously near a vessel, railroad car, and inhabited or uninhabited dwelling, or certain buildings, for multiple first degree murders, for first degree murder of a public official stemming from or related to the official’s position, acts, or capacity, for any murder committed by any defendant who in the 20 years preceding the crime was convicted of murder in the first or second degree, and for murder of any witness subpoenaed to testify against the defendant.

In death penalty cases, if the jury finds the defendant not guilty of capital murder it must return a verdict of acquittal and the defendant is to be discharged. If the jury is unable to agree on a verdict of guilty or not guilty, or if the jury is unable to agree on the imposition of the death penalty, then the trial court may enter a judgment of mistrial. After such a mistrial, the defendant may be once again tried for the aggravated offense or for a lesser, non-aggravated offense carrying a lighter sentence. Ala. Code, § 13-ll-2(c).

In any case in which the jury finds the defendant guilty and imposes the death sentence, the trial court is required by section 13-11-3 to hold a pre-sentence hearing to determine whether to sentence the defendant to death or to life imprisonment without parole. These are the only options for the sentencing authority. At this hearing the court is to receive all evidence relevant to sentencing, particularly evidence reflecting upon the mitigating and aggravating circumstances set out in sections 13-11-6 and 13-11-7. The Court is permitted to consider any evidence that it considers to have probative value, regardless of its admissibility under exclusionary rules, with the caveat that the defendant be given a fair opportunity to rebut any hearsay statements.

Following this hearing, the trial judge must weigh the aggravating and mitigating circumstances revealed by the evidence and either accept the sentence of death imposed by the jury, or reject the jury’s sentence and impose upon the defendant the sentence of life imprisonment without parole. Id., § 13-11 — 4. If the trial judge accepts the jury determination and imposes the death sentence, then the judge is required to set forth in writing findings of fact from the trial and the pre-sentence hearing that include, at the least, one or more of the statutory aggravating circumstances that has been found to exist and which is or are deemed sufficient to support a sentence of death, and any of the statutory mitigating circumstances found to be present which the trial judge determines to be insufficient to outweigh the death sentence. Id., § 13-11-4(1) & (2).

Any capital murder conviction that results in imposition by the trial judge of the death penalty is automatically reviewed by the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Id., §§ 12-22-150, 12-22-240, 12-22-243, 13-11-5, and A.R.A.P. Rule 39(c).

A. Preclusion of jury consideration of lesser included offenses

Under the Alabama statute, the trial jury in a capital case is specifically precluded from considering any lesser offenses that might be revealed by the evidence, Ala. Code, § 13-ll-2(a), and the petitioner contends that such a preclusion is violative of both the Eighth and Fourteenth Amendments to the United States Constitution in that persons accused of capital crimes are denied due process of law, equal protection under the law, and are subjected to cruel and unusual punishment. As the petitioner notes at page 8 of his brief in support of the petition, Alabama is the only state that has adopted a post-Furman statute precluding consideration of lesser offenses in capital cases.

On the due process contention, the petitioner argues that a jury that is precluded from considering lesser offenses is likely to resolve its doubts in favor of conviction where one or more of the elements of the offense charged is in doubt but the evidence clearly reveals that the defendant is guilty of some crime. In Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), the United States Supreme Court was confronted with the issue of whether an Indian prosecuted under the Major Crimes Act, Title 18 U.S.C.A., §§ 1153 & 3242, was entitled to jury consideration of a lesser included offense when such lesser offense was not one of the crimes enumerated in the Act. A 6-3 majority of the court concluded that the defendant was entitled to such a lesser offense instruction, ruling that “it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” 412 U.S. at 208, 93 S.Ct. at 1995, 36 L.Ed.2d at 847, citing Fed.R.Crim. Proc. 31(c). This Court notes, however, that Keeble was a federal criminal prosecution, as were each of the earlier eases cited in the majority opinion as supporting the rule set out above. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1895). The Keeble Court’s opinion is therefore limited to instructions in federal criminal cases, for there is no language in the opinion that would, as the petitioner herein seeks to do, require states to follow the Federal Rules of Criminal Procedure. Nor can it be argued that the failure to instruct on lesser offenses violates the due process clause, for the Keeble Court acknowledges that such a failure has never been construed to violate the due process clause. 412 U.S. at 213, 93 S.Ct. 1993, 36 L.Ed.2d at 850. On this basis, this Court is of the opinion that Keeble does not stand as valid authority for the due process claims of the petitioner on the lesser offense issue.

Nor does the Court find it persuasive that capital juries might, as suggested in Keeble, find a defendant guilty and impose the death penalty on an improper predicate because they are convinced that the defendant is guilty of some lesser offense, although they have reasonable doubt as to the evidence on the capital offense. The argument assumes that jurors will abdicate their responsibility and violate their oaths in the interest of punishing criminal conduct, without consideration of any disparity between the perceived crime and the punishment to be imposed, and that trial judges will fail to properly weigh the sufficiency of the evidence submitted to the jury. The record in capital cases does not support such a conclusion of abdication of responsibility, for there have been two acquittals and three mistrials in cases arising under the Alabama statute. First Stipulation between the Parties, no. 7. Indeed, there is a forceful argument favoring capital defendants in that the preclusion of lesser offenses makes it incumbent upon the state prosecutor to establish that the defendant is guilty as charged and that the defendant should receive the death penalty for the crime. If one juror is convinced that the death penalty is not proper under the circumstances, then no conviction can be obtained under the Alabama statute, although the defendant may be subject to retrial if a mistrial is declared. This Court would rather presume that jurors, especially in a capital case, will be true to their oaths and return verdiets in accordance with the facts and the law, rather than adopting petitioner’s view that the jury can be expected to abdicate its responsibility. Indeed, to follow the petitioner’s reasoning the Seventh Amendment would become a mockery in any criminal case, since no juror could be presumed to abide by his or her oath in considering issues presented.

A different due process contention set forth by the petitioner respecting the lesser offense issue argues the instruction entitlement has been specifically required in capital cases by the Supreme Court in Gregg. This position evidently results from a misreading of Gregg, for no such requirement is present. The Gregg Court merely held that the jury discretion inherent in an instruction permitting conviction on a lesser offense was not unconstitutional as permitting arbitrariness and capriciousness in the jury deliberations, and in no way held that such lesser offense instructions were required. 428 U.S. at 199, 96 S.Ct. 2909, 49 L.Ed.2d at 889. This Court is convinced that the fact that each of the state schemes that have received Supreme Court approval (Georgia, Florida, and Texas) permit lesser offense instructions does not invalidate the Alabama statute in this respect as an attempted response to the Furman concerns of arbitrary, capricious, or standardless jury decisions in capital cases that resulted in the death sentence being imposed freakishly and/or wantonly. And, of course, it is clear that a jury-only sentencing scheme that permits consideration of lesser included offenses is indicative of the concerns voiced in Furman. See Roberts v. Louisiana, 428 U.S. 325, 334-35, 96 S.Ct. 3001, 49 L.Ed.2d 974, 982 (1976) (plurality opinion).

A final point militating against the due process arguments advanced by the petitioner on the lesser offense issue is the fact that adequate safeguards exist within the statutory framework to ensure that no defendant who properly should be convicted of a lesser offense will be executed after imposition of the death penalty. First, assuming arguendo juror misconduct as alleged by the petitioner, it would still be necessary for the trial judge to weigh the aggravating and mitigating circumstances before determining whether or not to accept the sentence imposed by the jury. If the evidence does not support a conviction under the capital statute, then the trial judge should be able to ascertain this in the pre-sentence hearing and sentence the defendant to life imprisonment without parole. But perhaps the trial judge is assumed to violate his oath also. If so, then the sufficiency of the evidence must still be considered by appellate courts. In the Court’s view, the only way that an Alabama defendant could possibly be executed improperly as a result of the failure to charge on lesser included offenses would be for twelve citizens to violate their oaths as jurors and for no less than eight judges to violate their oaths as jurists.

The petitioner further alleges that the preclusion of lesser included offenses violates the equal protection rights of capital defendants, since all defendants in non-capital cases have the privilege of receiving lesser included offense instructions. This contention is piggy-backed on the due process contention that the failure to so instruct permits juries to convict in capital cases on less than guilt proven beyond a reasonable doubt. If, of course, the evidence was that the statute had permitted juries to convict on less than proof beyond a reasonable doubt, then the statute would unquestionably be unconstitutional. See Addington v. Texas, - U.S. -, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368, 378 (1970) (Harlan, J., concurring). But here the Court has concluded that while abdication of juror responsibility is possible in any case, there is nothing in the Alabama statute that makes it more likely to occur in cases under the statute, nor does this Court assume that “juries will disobey or nullify their instructions.” Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959, 49 L.Ed.2d 929, 942 (1976) (White, J., concurring). Thus, without piling speculation upon assumptions, it cannot be said that the Alabama statutes impose a different standard of proof in capital cases than is present in non-capital cases.

A second equal protection contention is that capital defendants are not accorded treatment equal to that of non-capital defendants, since non-capital defendants are afforded the opportunity to have juries instructed on lesser included offenses. This argument is also without merit, for the state clearly has a compelling interest in prescribing the process by which those upon whom it seeks to impose the ultimate penalty of death are to be tried. The Court has noted supra in connection with review of the Keeble decision that there is no fundamental right to a lesser offense instruction. Since this Court finds a rational basis for the state’s distinction between capital and non-capital defendants, the allegations of equal protection violations are without merit.

The final argument advanced by the petitioner attacking the preclusion of lesser included offenses alleges violations of the Eighth Amendment’s proscription of cruel and unusual punishment. The petitioner alleges that this portion of the statute fails to reflect “contemporary community values”. and “contemporary standards of decency,” an Eighth Amendment requirement. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 294-97, 96 S.Ct. 2978, 49 L.Ed.2d 944, 955-57 (1976). Again, the petitioner piggy-backs his contention on the assumption that the Alabama system permits a conviction in capital cases on less than proof beyond a reasonable doubt. Such a system, this Court agrees, would be abhorrent to modern community values and contemporary standards of decency, but here, as noted earlier, the petitioner piles a supposition on top of an assumption to achieve the position that the burden of proof is lessened. This is simply too conjectural to bear consideration by the Court.

A second argument advanced by the petitioner on Eighth Amendment grounds contends that since Alabama is the only state that precludes lesser included offenses, it amounts to cruel and unusual punishment. This Court acknowledges that Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), indicates that legislative attitudes in other areas have some relevance to determining whether or not a certain penalty is excessive or unreasonable. The Georgia rape statute was struck down in that case as being excessive in part because Georgia was the only state that permitted the death sentence for rape. In the instant case, however, the Court is not concerned with any penal distinction between the schemes in the various states, but rather with a procedural distinction. Coker is in no way directed toward procedural distinctions under various death penalty statutes, and the Court is not persuaded that it has any relevance to the Eighth Amendment question in this case. The Court is convinced that the fact that Alabama is the only state that employs the procedural preclusion of lesser included offenses has no Eighth Amendment implications, and that the petitioner is entitled to no habeas corpus relief on this point.

In conclusion with respect to the preclusion of lesser included offenses, the Court is content that such offenses are not constitutionally required to be submitted to the jury, that such a system does not lessen the burden of proof borne by the prosecution, that the rights of capital defendants are adequately protected by the statutory scheme, even assuming abdication of responsibility by jurors, and that the preclusion is not on its face abhorrent to either the Eighth or Fourteenth Amendments to the United States Constitution.

B. The Sentencing Authority Under the Alabama Statute

The petitioner’s second area of challenge to the constitutionality of the Alabama death penalty statute is concerned with the requirement that a capital jury that finds a defendant guilty must impose the death sentence or impose no penalty at all. The petitioner contends that this provision is conducive to arbitrary or capricious jury decisions in death penalty cases, since it permits juries to refuse to impose the death sentence in those cases in which they do not feel that the defendant deserves to die. This concern led to the rejection of mandatory death penalty statutes in North Carolina and Louisiana by the United States Supreme Court, since it was felt by the plurality of the Court that the unbridled jury discretion condemned by Furman could not be remedied by a mandatory statute removing all sentencing discretion from the jury, because such a statute encourages jurors to consider the harshness of the penalty while deliberating on the guilt or innocence of the capital defendant. Woodson, 428 U.S. at 303, 96 S.Ct. 2978, 49 L.Ed.2d at 960; Roberts, 428 U.S. at 335, 96 S.Ct. 3001, 49 L.Ed.2d at 982. The question for this Court is whether the Alabama statutory scheme permits such unchanneled jury discretion in capital cases as to merit the death penalty to be imposed “freakishly or wantonly.” See Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 33 L.Ed.2d 346, 390 (1976) (Stewart, J., concurring).

At the outset, the distinctions between the Alabama statute and those struck