William Henry HANCE
A.K.A.: "Chairman of the Forces of Evil"
Classification: Serial killer
Characteristics: Sent five letters to the Chief of Police and one to the local newspaper
Number of victims: 3 +
Date of murders: 1977 - 1978
Date of arrest: April 4, 1978
Date of birth: 1951
Victims profile: Women (prostitutes)
Method of murder: Beating with a jack handle
Location: Georgia, USA
Status: Executed by electrocution in Georgia on March 31, 1994
On September 16, 1977, the nude body of Karen Hickman, 24, was found at Fort Benning near Colombus, Georgia. Hickman had been beaten and run over with a car. No real clues or leads developed and the murder was put on the backburner because of the presence of serial killer Carlton "The Stocking Strangler" Gary, who was operating in Colombus at that time. Gary was causing quite a stir with his killings because the victims were elderly white women and, though he had not been caught, evidence had determined that The Strangler was black.
William Hance decided to attempt to take advantage of the situation by drawing attention away from his own crimes. He penned a letter to Colombus authorities in March 1978 claiming to be a group of white radicals calling themselves "The Forces of Evil" and vowing that a black woman would die if the authorities could not locate The Strangler.
He claimed that the fictitious group had already kidnapped a prostitute named Gail Jackson and would soon kill her. Jackson was indeed missing, but in reality, Hance had already killed her and was merely attempting to obscure his tracks.
Hance also sent a letter about a week later asking for a ransom in exchange for Jackson's release. When no reply was forthcoming a third letter was sent claiming that a second victim had been abducted named Irene and that she would die on June 1. Like Jackson, Irene Thirkield was also truly missing, having been last seen with a black soldier on March 16.
That was no suprise to authorities. They had pretty much figured out that someone from the nearby military base was responsible for the letters and the abductions. For one thing the original letter was written on military stationary. It was no suprise when Jackson, who's real name proved to be Brenda Faison, was found in a shallow grave ust outside the military installation on March 30, her skull crushed.
A few days later an anonymous call lead military police to Thirkield's headless body, hidden behind some logs near a rifle range. It wasn't long before authorities had determined that Hance was the soldier seen with Thierkield and the Army private was arrested. He confessed to all three slayings. He first stood trial for the Jackson/Faison slaying in civilian court and was found guilty and sentenced to die. He was then tried in military court for the Hickman and Thirkield murders.
Found guilty and sentenced to life with hard labor, a review board did not agree and a re-trial was ordered. Military prosecutors decided against this, allowing Hance to begin his wait on Georgia's death row where he was put to death in 1994.
William Henry Hance
In Columbus, Georgia 1977-1978 they had what people were calling the "Stocking Stranglings" which put fear in the city of Columbus.
Seven well-respected women were assaulted and strangled in there own homes. This put the whole city on the edge for months after.
The strangler did not attempt to hide his crimes and, indeed, he seemed to flaunt them before the police and public. Also during this time the news media started getting letters from a person who called himself the chairman of the "Forces of Evil." In these letters he threatened to kill a black woman every time the "stocking strangler" killed a white woman.
He also claimed to be holding a black woman captive and said that he would kill her if he was not paid a ransom of $10,000. The letters were written on army stationary and the Forces of Evil killer was quickly identified as Pvt. William Hance, a Fort Benning soldier.
Hance, a black man, was arrested and eventually tied to the murder of three prostitutes, one of whom he had first knocked unconscious, then propped up against a tree and crushed her by driving a car into her.
Hance was convicted of murder and sentence to death. It was 1984 before police made an arrest on the stocking strangler case. Columbus Police Department traced a handgun stolen from one of the victim's home to Michigan and back to Phoenix City, Alabama, just across the state line from Columbus to a man named Jim Gary.
Jim Gary told police that he had bought the gun from his nephew, Carlton Gary. Carlton Gary was arrested on May 3, 1984 in Albany, Georgia. He turned out to be a Columbus native and had a long criminal history.
In 1986 Gary was tried and convicted of three of the stocking stranglings and sentenced to death. Despite the heavy weight of the evidence against Gary, which included a partial confession and an eyewitness identification of Gary by an elderly woman that survived one of his attacks, there are still people in Columbus who insist he is not the Stocking Strangler. Part of this relates to Gary's personality and looks. With a better than average I.Q. (115), he has what several of his friends and associates call "star quality" which is common in characteristics of certain types of serial killers.
Hance, William Henry
On September 6, 1977, the nude and lifeless body of an army private, 24-year-old Karen Hickman, was discovered near the women's barracks at Fort Benning, near Columbus, Georgia. Beaten with a blunt instrument, then run over several times with a car, Hickman had been killed elsewhere, her corpse transported to the spot where it was found. Investigators learned that the victim -- a white woman -- had dated black soldiers exclusively, picking them up in bars near the post.
An anonymous call led authorities to her missing clothes a month later, but no new evidence was found. The crime was treated as an isolated incident, almost forgotten in the manhunt for the "Stocking Strangler" who terrorized Columbus between September 1977 and April 1978.
By mid-February, the Strangler -- described as a black man from evidence found at the crime scenes -- had raped and murdered six elderly white women in Columbus. Georgia is Klan country, and racial tension was already mounting when, on March 3, 1978, the chief of police received a letter signed by the self-styled "Forces of Evil." "Since that coroner said the Strangler is black," the note read, "we decided to come here and try to catch him or put more pressure on you... From now on black women in Columbus, GA., will be disappearing if the Strangler is not caught."
The first victim, a local black woman named Gail Jackson, had already been abducted by "an organization within an organization," and she was scheduled to die if the Stocking Strangler was not apprehended by June 1. Two more blacks would be killed, the author promised, if the murderer was still at large September 1.
Police could find no record of a Gail Jackson missing in Columbus, but they did discover that a black prostitute, Brenda Gail Faison, had disappeared from a local tavern on February 28. A second letter to the chief, arriving March 13, suggested that a ransom of $10,000 might secure the hostage's release, if homicide detectives could not find their man before the deadline. When police made no reply, a third note was delivered two weeks later, claiming that a second hostage named "Irene" had been abducted, scheduled to die on June 1. Detectives learned that 32-year-old Irene Thirkield was indeed missing, last seen on March 16 in the company of an unnamed black soldier.
In the predawn hours of March 30, 1978, an anonymous phone call led MPs to a shallow grave, just off the military reservation, where they uncovered the remains of Brenda Faison, her face and skull crushed into pulp by a savage beating. Four days later, another call directed CID agents to Maertens Range, on Fort Benning, and Irene Thirkield's headless body -- plus scattered skull fragments -- was found hidden behind a pile of logs.
On April 4, an officer reviewing tapes of the anonymous phone calls recognized the distinctive voice, fingering a 26-year-old private, William Hance, as the caller. An ammunition handler for the 10th Artillery,
Hance was arrested that day, charged with murder and attempted extortion on April 5. He confessed to the murders in custody but later recanted and claimed innocence. A civilian jury convicted him of Brenda Faison's murder on December 16, 1978, voting the death penalty (plus five years on the extortion charge).
Convicted of the Hickman and Thirkield murders at a subsequent court-martial, Hance drew a sentence of life imprisonment at hard labor.
Hance was executed on March 31, 1994, in Georgia.
Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
Georgia Executes Murderer After Brief Stay From Court
By Peter Applebome - The NewYork Times
April 1, 1994
William Henry Hance, a former Marine convicted of the 1978 murder of a prostitute in Columbus, Ga., was executed in Georgia's electric chair this evening despite a juror's sworn statement that she did not vote for and does not support his death sentence.
Mr. Hance was put to death after Supreme Court Justice Anthony M. Kennedy lifted a temporary stay that had delayed the execution originally scheduled for 7 P.M. He was pronounced dead at 10:10 P.M.
The prisoner maintained his innocence in a seven-minute statement before his execution at the state prison in Jackson.
"Why are you executing an innocent man?" he asked. "Why? Why? Why?"
Coming a month after Supreme Court Justice Harry A. Blackmun issued an emotional dissent saying it was a "delusion" that capital punishment can be consistent with the Constitution, Mr. Hance's execution highlighted once again some of the wrenching issues of justice and race swirling around the death penalty.
But at a time when more than 2,800 inmates are awaiting execution in the United States with no major legal challenges in their path, Mr. Hance's case may say more about the way the death penalty is administered than about any debate about continuing capital punishment. Mr. Hance was the 231st convict executed since the death penalty was reinstated by the United States Supreme Court in 1976. There were 38 last year, the greatest number of executions since the resumption of capital punishment. Twice-Rejected Appeal
Mr. Hance's lawyer, Gary Parker, went to the Supreme Court today after the United States Court of Appeals for the 11th Circuit, in Atlanta, and the Georgia Supreme Court refused to halt the execution. The Georgia Board of Pardons and Paroles denied a clemency petition on Wednesday after the only black juror, Gayle Daniels, said that she had not voted for the death penalty, believing that Mr. Hance was too mentally impaired to be executed, and that the jury foreman lied in saying the verdict was unanimous. Another member of the jury, Patricia LeMay, corroborated her story in a signed affidavit.
"If they execute him now, they will be punishing me for what I did that day in 1984, more than punishing him for what he did," Ms. Daniels said after the parole board hearing on Wednesday.
Death penalty critics have said everything about Mr. Hance's trial, from the decision to seek the death penalty, to the racial makeup of the jury, which included one black, to the racial slurs that Ms. Daniels and Ms. LeMay say were used during jury deliberations, reflected racism in state courts in Columbus, a jurisdiction often cited as a place where blacks are more likely than whites to be sentenced to death in capital crimes.
"This was a case infected with racism from start to finish," said Steve Bright, a prominent death penalty lawyer in Atlanta. Officials Defend Actions
But state and local officials fiercely defended their handling of the case. The Georgia Attorney General, Michael Bowers, called Mr. Hance's appeals a last-minute stall, saying that by law jurors cannot challenge their own verdict and that Ms. Daniels was duly polled about the verdict when it was handed down and said she had concurred with it.
"The law in this country has long been a juror cannot come along after the rendition of a verdict and challenge the verdict," Mr. Bowers said. "If it did, every jury verdict in this country would be subject to challenge after the fact. There is not the slightest iota of doubt about the guilt of Hance. What needs to be done is focus on the woman who was killed, not on this guy."
Mr. Hance, who like his victim is black, was convicted of the 1978 murder of Gail Faison. He was also convicted in military court, but never tried in a civilian court, for the murder of another prostitute, Irene Thirkield.
"My position," Mr. Bowers said, "is the man is guilty of murder -- has been found guilty. The focus should be on his victims. He has been through the legal process for a period of 16 years, and he deserves what he gets."
Georgia Rejects Clemency for a Killer Who Says He Is Retarded
March 31, 1994 - The New York Times
The Georgia Board of Pardons and Paroles today rejected a last-minute clemency petition from William Henry Hance, a former marine who is appealing his death sentence on the ground that he is mentally retarded and that one of the jurors in his trial now says she never voted for a death sentence.
A second juror recently swore in an affidavit that the sentencing deliberations were marked by misinformation, misconduct and racial bias.
Mr. Hance, who is black, is scheduled to die on Thursday at 7 P.M. in Georgia's electric chair for the 1978 murder of a prostitute. His lawyer, Gary Parker, said he would appeal the death sentence to the Georgia Supreme Court and, if necessary, to the United States Supreme Court. 'Cousin to a Lynching'
"If you want to see the judicial system at its worst, watch a death penalty case, particularly in the South," said Mr. Parker, a former Georgia State Senator. "This case is first cousin to a lynching."
Gayle Daniels, the only black juror in Mr. Hance's 1984 sentencing trial, came forward recently in response to Mr. Parker's appeal, saying that she did not vote for the death sentence and that the jury foreman had lied in saying that a unanimous verdict had been reached.
After the hearing today, Ms. Daniels told reporters that other jurors had pressured her to reach a verdict of death so that they could go home for Mother's Day. After she "pushed back her chair" and walked away, she said, the foreman announced to the bailiff that the jury had reached a unanimous verdict of death. When the judge asked for a roll-call, Ms. Daniels said, she was afraid that if she contradicted the foreman she could be accused of perjury.
"I feel terrible, as if I had a chance to save a life and didn't," Ms. Daniels said. The alternative to a death sentence would have been life in prison.
After the verdict, Ms. Daniels said, she called a local reporter who arranged for her to visit Mr. Hance in prison and explain what had happened. She said she had not discussed the incident for 10 years because no one had asked her about it.
"It was a relief" to finally tell Mr. Parker her story after he contacted her a few weeks ago, she said.
Mr. Hance's lawyers recently obtained an affidavit from Patricia LeMay, who served on the jury with Ms. Daniels, confirming her account of its sentencing deliberations.
Mr. Parker complained to the parole board that the prosecutor did not consult with family members of the victim, Gail Faison, regarding Mr. Hance's sentencing, as is the normal procedure. Mr. Parker did, however, and presented testimony to the board in which Ms. Faison's family members plead with the state to commute Mr. Hance's sentence. Prosecutors Defend Actions
William Smith, who prosecuted the case, has said that he did not contact members of the victim's family because they lived in Miami and "there was not really family to talk with."
Mary Beth Westmoreland, senior State Assistant Attorney General, said the case was handled with due process. She said that Mr. Hance had two habeas corpus hearings and that a motion for a third hearing was denied this week by a judge on the ground that Mr. Hance had not met the state's definition of mental retardation.
Georgia law defines a mentally retarded person as having "significant subaverage general intellectual functioning." The generally accepted boundary of mental retardation is an I.Q. level of 70. In 1984, psychiatrists determined that Mr. Hance was borderline retarded, with an I.Q. of 76. In another evaluation in 1987, psychiatrists said he had an I.Q. of 91, within the average range of intelligence.
William H. Hance - Mar 31, 1994
On or about February 28, 1978, William Henry Hance, a soldier stationed at Fort Benning, Columbus, Georgia, went to the Sand Hill Bar located near the base for a drink.
While in the bar, he was solicited by the victim, a prostitute named Gail Faison, also known as Gail Jackson or Gail Bogen. Hance agreed to a price of $ 20.00 and they got into his car.
He drove 200 yards up the road to an area she selected and stopped. She began to undress when Hance for no other reason than Gail was a prostitute, became enraged. He grabbed Gail and as she tried to get away, he hit her with a karate chop across her head. She fell unconscious.
Hance then pulled her out of the car, dislocating her elbow in the process. He returned to his car for a moment, but thinking she was still alive, he got a jack handle from his car, and finding his victim to be still breathing, repeatedly struck the helpless victim in the face.
The beating was so severe that Gail's entire face was destroyed and bone fragments were scattered about the area. Some of her brain tissue was literally beaten from the skull. The force of the attack was so great it produced a depression in the ground behind Gail's head. Hance then buried Gail's body in a shallow grave he dug with an entrenching tool. During this period of time, the City of Columbus was being terrorized by a series of unsolved strangulation murders.
Beginning on March 3, 1978, Hance, in order to avert suspicion from himself, sent a total of five letters to the Chief of Police of Columbus, Georgia, and one letter to the local newspaper. These letters were written on Army stationery and demanded that either the Columbus strangler be caught by a certain date or a female named Gail Jackson would be executed.
The letters were signed "Forces of Evil," a fictitious group Hance had created. The second of these letters received by the Chief of Police demanded either the apprehension of the Columbus strangler or a $ 10,000 ransom in return for the victim's safety.
In addition, Hance found an Army Cap with a different unit insignia than his unit and placed this near the crime scene, also in order to avert suspicion.
On March 15, 1978, Hance went to Vice Mitchell's Bar. While there, Irene Thirkield asked him to give her a ride to the Sand Hill bar. While in Hance's car she solicited him. After she had removed her clothes, Hance again became enraged and attacked her in the same manner as he had attacked the first victim. He beat Irene Thirkield so severely that her entire head was missing from her body. Hance hid her body on the military reservation behind a pile of logs.
On March 30, 1978, Hance called the military police and told them exactly where to find Gail Faison's body. The body was recovered that afternoon. Hance thereafter added the name "Irene" to the letters he was sending to the police chief and stated that she, like his first victim, would die unless the terms were met. In the fourth letter received by the Columbus police, Hance detailed the exact manner of the killing of Gail Faison, including the dislocated elbow.
Again, in a similar manner to the calls made regarding his first victim, Hance called the military police. The military police, acting upon information that Hance was the last person seen with Irene Thirkield, questioned Hance and obtained a confession as to both murders.
Subsequently, Hance also gave a confession to Columbus authorities. He told authorities where he had disposed of the murder weapons and clothes of the victims. These were subsequently recovered. Handwriting samples were obtained from Hance and were matched with handwriting on the letters received by the chief of police. A fingerprint from one of the letters was determined to be that of Hance.
In America; Judicial Coin Toss
By Bob Herbert - The New York Times
April 3, 1994
William Henry Hance was electrocuted in Jackson, Ga., a few minutes after 10 P.M. on Thursday, and the shabby mistakes, the carelessness and the demoralizing capriciousness that characterized his case continued right up until the end.
The Georgia State Board of Pardons and Paroles, in its official order denying Mr. Hance's request for a stay of execution, somehow got the wrong man's name into a key paragraph. So instead of William Henry Hance, the order contains a reference to someone named Larry Grant Lonchar -- an incredible mistake in a capital punishment case.
Meanwhile, the Georgia Supreme Court rejected an appeal on Mr. Hance's behalf by a 4-to-3 vote. One vote the other way and he would still be alive. That's the judicial equivalent of a coin toss, or a crapshoot, which may be fine in most cases -- but not when a person's life is at stake.
A half-hour before the scheduled 7 P.M. execution, U.S. Supreme Court Justice Anthony M. Kennedy issued a temporary stay so the full Court could decide whether to hear Mr. Hance's appeal. That stay lasted just a couple of hours. The Court voted 6 to 3 against hearing the case and the stay was lifted.
Justice Harry Blackmun, who dissented along with Justices John Paul Stevens and Ruth Bader Ginsburg, wrote that even if he had not recently "reached the conclusion that the death penalty cannot be imposed fairly within the constraints of our Constitution . . . I could not support its imposition in this case."
He said: "There is substantial evidence that William Henry Hance is mentally retarded as well as mentally ill. There is reason to believe that his trial and sentencing proceedings were infected with racial prejudice. One of his sentencers has come forward to say that she did not vote for the death penalty because of his mental impairments."
The execution of Mr. Hance is a clear example of how capital punishment degrades us all. We can never be sure that we're doing the right thing, and we can never correct our errors. There is little doubt that Mr. Hance was, in fact, a murderer. The objections to his execution were not based on claims of innocence. But innocent people do get convicted. When we witness this kind of slipshod justice in a capital case, is there any reason to imagine that fewer mistakes and a higher standard of justice prevail in the sentencing and appeals process for someone wrongly convicted of murder?
The death penalty is administered by humans, and humans are earnestly, creatively and endlessly fallible. We are prone to mistakes and prejudices, to anger and rage and resentment. With a death penalty administered by humans, it is always just a matter of time before someone innocent is strapped into an electric chair, or walked into a gas chamber, or injected with poison.
Anthony Amsterdam, a professor at New York University Law School and the principal architect of the legal effort to abolish capital punishment in the United States, said the key moral and philosophical question is whether human beings are capable of having a "just" death penalty, "given our imperfections."
He quotes Lafayette (often wrongly attributed to Jefferson): "I will always be against the death penalty until the infallibility of human judgment is demonstrated to me."
Our judgmental shortcomings include our colossal inability to crawl out of the muck of racial prejudice. One of Mr. Hance's death penalty jurors was a white woman named Patricia Lemay, who came forward to tell of scurrilous racial remarks made by some of her fellow jurors about Mr. Hance, who was black. Among other things, Mr. Hance was referred to as "just one more sorry nigger that no one would miss."
Not only does the death penalty fall disproportionately on the black and the poor, but white persons who murder blacks are almost never put to death. In the nearly 240 executions that have taken place since the death penalty was reinstated in the United States in 1976, only one -- just one -- was of a white person who killed a black. That was a case in which a white man convicted of nine murders and already in prison killed a fellow inmate who was black.
The frailties of men and women cannot be fixed with legislative or bureaucratic tinkering. We should rid ourselves of capital punishment and impose life sentences that really last a lifetime.
696 F.2d 940
William Henry Hance, Petitioner,
Walter D. Zant, Warden, Georgia Diagnostic And Classification Center, Respondent
United States Court of Appeals, Eleventh Circuit.
Jan. 24, 1983
Appeal from the United States District Court for the Middle District of Georgia.
Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD*, District judge.
JOHNSON, Circuit Judge:
Petitioner William Henry Hance was convicted by a jury in the Superior Court of Muscogee County, Georgia, of the murder of Brenda Gail Faison (a/k/a Gail Jackson) and of attempted theft by extortion. The jury sentenced him to death for the murder under Ga.Code Ann. Sec. 27-2534.1(b)(7) and he was sentenced to five years' imprisonment for attempted extortion.
The Supreme Court of Georgia affirmed the convictions and sentences. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980), reh'g denied, 449 U.S. 1135, 101 S.Ct. 958, 67 L.Ed.2d 122 (1981). Hance's petition for habeas corpus was dismissed by the Superior Court of Butts County, Georgia, after a hearing. The Supreme Court of Georgia denied petitioner's application for a certificate of probable cause and the United States Supreme Court denied certiorari. Hance v. Zant, --- U.S. ----, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982).
The United States District Court for the Middle District of Georgia granted petitioner leave to proceed in forma pauperis and summarily denied his application for habeas corpus without an evidentiary hearing. The court denied a stay of execution pending appeal but granted a certificate of probable cause to appeal to this Court. This Court granted a stay of execution pending appeal.
On or about February 28, 1978, Hance, a soldier at Fort Benning in Columbus, Georgia, killed prostitute Gail Jackson, after she propositioned him, by knocking her unconscious with a karate chop and then repeatedly striking her in the face with a jack handle. On March 15, Hance killed prostitute Irene Thirkield in a similar manner, leaving her body on Fort Benning grounds.
Between March 3 and April 5, Hance sent five letters to Columbus Police Chief McClung and one letter to the local newspaper claiming that "The Forces of Evil", a white organization, had kidnapped Gail Jackson and Irene, who were black, in order to pressure the Columbus police to capture the "stocking strangler" who was then terrorizing the white women of the city. The handprinted letters on Army stationery threatened that, if the strangler was not caught by June 1, 1978, or if $10,000 was not given to "The Forces of Evil", Gail Jackson would be killed and other black female victims would follow.
On March 30, 1978, Hance, claiming to be "The Forces of Evil", telephoned the Fort Benning military police and the Columbus Police Department, indicating that Gail Jackson's body could be found a certain metric distance from the Sand Hill Bar. The military police and the police receptionist who received the calls thought the caller was a young black male. Gail Jackson's body was found at the specified location covered with twigs and leaves. Her face was mutilated. Near the body was found an Army cap with a different unit insignia than Hance's unit. On April 3 the Fort Benning desk sergeant received a call from "The Forces of Evil" indicating where on Fort Benning Irene's body could be found. The caller sounded like a black male.
Irene Thirkield was last seen on March 15, talking to a soldier in Vice Mitchell's Tavern. One of the witnesses told Agent Richard Fox, of the United States Army Central Intelligence Division ("C.I.D."), that Hance was the soldier seen with the victim and stated that the two left the tavern together. Tape recordings of the phone calls to the Fort Benning police which indicated where the bodies could be found were taken by C.I.D. Agent Besson to Hance's company commander and first sergeant, who thought it was Hance's voice on the tapes.
On April 4, 1978, Agents Besson and Fox told the petitioner's commanding officer that they wanted to interview Hance. Hance agreed to be taken to C.I.D. headquarters, where he was advised of his rights by Agent Fox and informed that the interview concerned the murder of Irene Thirkield, with whom he was the last person seen. Hance signed a waiver of his rights. The interview was conducted from about 1:00 p.m. until 10:20 p.m.
Hance was then interviewed by the FBI and the Columbus police for another hour. During the interviews Hance admitted writing letters and making the telephone calls for "The Forces of Evil" but said he had been forced to do so by the organization.
The next morning, at about eight, Hance was again advised of his rights, which he again waived. He was interviewed until about 3:15 p.m. when he signed a written statement concerning each murder. Throughout the two days of interrogation he was given breaks to eat and to use the restroom. Hance was also given coffee and allowed to smoke. At no time did petitioner request a lawyer or ask that the interview be terminated.
The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C.A. Sec. 2254(d).1 A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in Section 2254(d)(1)-(7) is found to exist. If none of these conditions is found, or unless the state-court determination is "not fairly supported by the record," 28 U.S.C.A. Sec. 2254(d)(8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 550, 101 S.Ct. 764, 768, 770, 66 L.Ed.2d 722 (1981).
This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). Factual issues involve "what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators ....' " Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.).
On the other hand, mixed questions of law and fact involve "the application of legal principles to the historical facts of [the] case." Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1714. As Justice Frankfurter once stated: "Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the [Federal] Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge." Brown, supra, 344 U.S. at 507, 73 S.Ct. at 446 (opinion of Frankfurter, J.).
Petitioner's first argument on appeal is that his confessions must be excluded under Taylor v. Alabama, --- U.S. ----, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), as the impermissible fruit of a warrantless arrest without probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Because Hance was afforded the opportunity for full and fair litigation of this Fourth Amendment claim in state court, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes its consideration in a federal habeas corpus proceeding. Williams v. Brown, 609 F.2d 216, 220 (5th Cir.1980); Caver v. Alabama, 577 F.2d 1188, 1191-94 (5th Cir.1978).
While Hance was being interrogated, attorney David Clark, who had not yet been retained by petitioner, was attempting to locate him to advise him of his rights. Hance argues that the confessions resulting from his interrogation should be excluded under Escobedo v. Illinois, 378 U.S. 478, 486-87, 490-91, 84 S.Ct. 1758, 1762-63, 1764-65, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 465 n. 35, 86 S.Ct. 1602, 1623 n. 35, 16 L.Ed.2d 694 (1966), because law enforcement officials prevented his attorney from advising him, thereby violating his Fifth, Sixth and Fourteenth Amendment rights. But Hance never requested an attorney and Mr. Clark was never refused access to him. Given this situation, as found by the state trial court during a Jackson v. Denno hearing, Escobedo does not apply. Love v. Alabama, 411 F.2d 558, 560 (5th Cir.1969).
Moreover, Hance was advised of his Fifth and Sixth Amendment rights and he signed a written waiver of those rights. Our determination whether this waiver was valid involves a mixed question of law and fact. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). Under the proper constitutional standard, the state must prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).2
The trial court found by a preponderance of the evidence that Hance was properly advised of his rights, that he understood those rights, and that he voluntarily signed a written waiver of those rights. Implicit in this finding is the factual determination that Hance was mentally competent to waive his rights. Upon examination of the entire record, according a presumption of correctness to the factual findings of the state court, we conclude that Hance voluntarily and validly waived his right to counsel. See Jurek v. Estelle, 623 F.2d 929, 931-32 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).
IV. COMPETENCY TO STAND TRIAL--NEED FOR A HEARING
Trial of a criminal defendant while he is mentally incompetent violates due process. Nathaniel v. Estelle, 493 F.2d 794, 796 (5th Cir.1974). The test for competency to stand trial is: whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam).
When a court has a "bona fide doubt" as to the defendant's competence, it must sua sponte conduct a hearing on his competency to stand trial. Pate v. Robinson, 383 U.S. 375, 385, 387, 86 S.Ct. 836, 842, 843, 15 L.Ed.2d 815 (1966); Scarborough v. United States, 683 F.2d 1323, 1324 (11th Cir.1982); Zapata v. Estelle, 588 F.2d 1017, 1020 (5th Cir.1979). This procedural guarantee, known as a "Pate hearing", protects the defendant's substantive constitutional right to a fair trial. Pate, supra, 383 U.S. at 385, 86 S.Ct. at 842; Acosta v. Turner, 666 F.2d 949, 954 (5th Cir. Unit B 1982). If the trial court ignores a bona fide doubt as to the defendant's competency,3
Pate requires a nunc pro tunc competency hearing as long as a meaningful inquiry into the defendant's competency can still be made. Zapata v. Estelle, supra, 588 F.2d at 1020. If such a meaningful inquiry is no longer possible, the defendant must be retried, if found competent, or released. Id.
Three factors should be considered in determining whether a Pate violation has occurred: (1) evidence of the defendant's irrational behavior; (2) his demeanor at trial; and (3) any prior medical opinion on his competence to stand trial. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). In any case, a Pate analysis must focus on what the trial court did in light of what it then knew. Reese v. Wainwright, supra, 600 F.2d at 1091.
Counsel for petitioner argues that the trial court's failure to conduct a competency hearing was a Pate violation because substantial evidence before the court suggested Hance's mental incompetence. He contends that Hance's letters from "The Forces of Evil" were replete with ravings and that the gruesome manner in which the prostitutes were slaughtered revealed a wholly abnormal mind.
Petitioner's counsel also points out that the trial court was informed by counsel that a clinical psychologist's report "suggested that there may be some character disorder that might be further examined to determine Mr. Hance's present mental status." And it is argued that Hance's performance as his own lead counsel clearly indicated his mental incompetency.
After examination of the trial record in light of the three factors listed in Drope, we are convinced that the trial court's failure to sua sponte conduct a competency hearing was not a Pate violation. Aside from the manner in which Hance murdered the prostitutes, there was scant evidence before the trial court that Hance had a history of irrational behavior.
Even the letters from "The Forces of Evil" lack significant probative value with regard to Hance's mental competency. Rather than indicating mental incompetency, they could as easily be interpreted to be evidence that Hance was aware of the consequences of his actions and had formulated a rational, albeit immature, plan of deception.
Although the gruesome method of the murders is evidence of irrational behavior, Hance did not present the trial court with a history of irrational behavior comparable to that uncovered in Pate v. Robinson or in Fifth Circuit cases which have required a Pate hearing.4 Evidence of Hance's irrational behavior does not reach the level presented in some Fifth Circuit cases finding no Pate violation.5
There is little evidence in the trial record that Hance's demeanor suggested mental incompetence, and the issue of his competency was not raised. Although a criminal defendant cannot waive his right to a Pate hearing, this Court has found "the failure of defendant or his counsel to raise the competency issue persuasive evidence that no Pate violation occurred." Reese v. Wainwright, supra, 600 F.2d at 1092. The trial judge is only required to act reasonably on the facts before him. Id. Among the facts before the trial judge in this case was a psychological evaluation of petitioner that was made at Central State Hospital. It reported that Hance may be suffering from "long-standing feelings of inadequacy, inferiority, and insecurity." But the report concluded that
there are ... no convincing indicators to suggest that this individual is psychotic at the present time or has ever been out of contact with reality in the past. Mr. Hance is aware of the charges against him, he has an understanding of basic courtroom procedure, and it is our opinion that he can communicate adequately with an attorney in the preparation of his defense. Therefore, we consider him to be competent for trial at the present time.
Given the facts before the trial judge, we cannot fault his failure to conduct a sua sponte competency hearing.
During the pretrial hearing, Hance requested that he be allowed to participate as lead counsel and handle the primary body of the proceedings. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a criminal defendant has a constitutional right to manage his own defense when he "knowingly and intelligently" chooses to do so. Id. at 835, 95 S.Ct. at 2541. Assertion of the right of self-representation entails a waiver of the right to counsel. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (former Fifth en banc).
Because an accused who conducts his own defense thereby relinquishes many of the important benefits associated with the right to counsel, a trial judge must conduct a waiver hearing to make sure that the accused understands the dangers and disadvantages of proceeding pro se. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. Unit B 1981). The record must establish that the defendant " 'knows what he is doing and his choice is made with eyes open.' " Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942).
Here the trial court conducted a waiver hearing, explaining many of the disadvantages that Hance would face by giving up his right to counsel and inquiring whether Hance understood that he could be executed for his alleged offense. Relying on Hance's responses during this colloquy, the trial court concluded, and we agree, that Hance was made aware of and knowingly relinquished his right to counsel. Although he was clearly not a competent attorney, Hance was competent to exercise the right to defend himself. See Faretta, supra, 422 U.S. at 836, 95 S.Ct. at 2541.6
Petitioner claims that he was denied his constitutional right to counsel "reasonably likely to render and reasonably rendering effective assistance." Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir. Unit B 1981), cert. denied, --- U.S. ----, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). But Hance, by asserting his right to self-representation, had waived his right to counsel. A defendant who chooses to represent himself cannot later complain that the management of his own defense amounted to a denial of effective assistance of counsel. Faretta, supra, 422 U.S. at 834-35 n. 46, 95 S.Ct. at 2541 n. 46.
Petitioner relies on United States v. Fessel, 531 F.2d 1275 (5th Cir.1976), in which the defendant asserted his right to defend himself shortly after the trial commenced and reversed his conviction on the grounds of ineffective assistance of counsel. That case is inapposite.
In Fessel, the defendant's court-appointed counsel had disregarded the defendant's repeated requests before trial to subpoena psychiatric information necessary for the preparation of an insanity defense--the defendant's only possible defense. After asserting his right to represent himself, defendant Fessel moved for a continuance so that he could subpoena psychiatric information and prepare a defense. His request was denied and he was convicted. Id. at 1277-78.
Fessel claimed that the ineffective assistance of counsel before he asserted his right of self-representation prevented the preparation and presentation of an adequate defense. Fessel did not challenge the effectiveness of counsel after he assumed his own defense. See id. at 1278-79. Hance's claim of ineffective assistance, on the other hand, concerns only the performance of his standby counsel after Hance asserted the right of self-representation.
To prevail on his claim of prosecutorial misconduct in this state habeas case, Hance must show that the prosecutor's actions were so egregious as to render the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Cobb v. Wainwright, 609 F.2d 754, 756 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980). The asserted error must be one of constitutional magnitude. Houston v. Estelle, 569 F.2d 372, 377-78 n. 8 (5th Cir.1978). This determination should be made by considering the totality of the circumstances; the prosecutor's conduct should be evaluated in the context of the entire trial. Id. at 377.7
Capital murder trials in Georgia involve a bifurcated procedure. After the jury has found the defendant guilty, a sentencing hearing is conducted during which the jury must determine whether any mitigating or statutory circumstances exist, and if a statutory aggravating circumstance is found the jury must decide whether to recommend death or "mercy" (life imprisonment) for the defendant. Ga.Code Ann. Secs. 26-3102, 27-2503(b) (1976).
If the trial court is reversed because of error only in the sentencing phase, the new trial which may be ordered applies only to the issue of punishment. Miller v. State, 237 Ga. 557, 229 S.E.2d 376, 377 (1976); Ga.Code Ann. Sec. 17-10-2(d) (1982). With this in mind, we examine the guilt-innocence phase and the sentencing phase separately.
During the guilt phase of the trial the prosecutor lived up to his promise to portray the crime in "vivid detail." After presenting numerous photographs of Gail Jackson's mutilated and largely decomposed body, the prosecutor introduced fragments of her corpse. During closing argument he reminded the jury that "[near the place of the murder] were found pieces of jawbone with the teeth attached, fragments of human skull no larger than a dime, individual teeth, and you'll have that with you to take out in evidence."
This evidence was unquestionably inflammatory, but it depicted the scene of the crime and was relevant to the state's theory of the murder weapon, so under Georgia law it was admissible. Cape v. State, 246 Ga. 520, 272 S.E.2d 487, 491 (1980), cert. denied, 449 U.S. 1134, 101 S.Ct. 956, 67 L.Ed.2d 121 (1981); Green v. State, 242 Ga. 261, 249 S.E.2d 1, 6-7 (1978), rev'd on other grounds, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).
More troublesome is the manner in which the prosecutor expressed his personal opinion to the jury. After arguing that the case turned on the question of credibility he proceeded to vouch for the credibility of the state's witnesses. Referring to the C.I.D., the prosecutor said, "thank God for them, I might add, and for the Columbus Police Department, too. I'll sleep better tonight and I feel that each of you will too, because of the work they did in this case...."8
In reference to one of the state's witnesses he stated that "[h]er testimony had what we classify or call, as the ring of truth about it."9 Citing his three years with the FBI, his eight years as a prosecutor, and his community roots, the prosecutor acted as an unsworn expert witness for the state when he explained to the jury why people generally confess: "And my years in law enforcement and in prosecution have taught me this, that confession as opposed to being an unnatural act, something that someone would not do, is a natural act."10
Certainly, the prosecutor's conduct during the guilt phase of this trial was improper, but it was not unconstitutional. Considering the overwhelming strength of the state's case we cannot find that the prosecutor's conduct rendered the determination of Hance's guilt fundamentally unfair. See Cobb v. Wainwright, supra, 609 F.2d at 755-56.
The sentencing phase of a capital murder trial in Georgia presents a different situation than the guilt phase. Even if the state proves the existence of statutory aggravating circumstances by conclusive evidence, the jury is instructed that they may recommend mercy. They have the choice of returning a life sentence. Ga.Code Ann. Sec. 27-2503(b) (1976).
Therefore, as recognized by the State of Georgia, it is most important that the sentencing phase of the trial not be influenced by passion, prejudice, or any other arbitrary factor. See Ga.Code Ann. Sec. 27-2537(c)(1) (1976). With a man's life at stake, a prosecutor should not play on the passions of the jury.
In this case, the prosecutor's fervent appeal to the fears and emotions of an already aroused jury was error of constitutional dimension. The prosecutor started out the sentencing hearing by assuring the jury of the wisdom of their verdict, stating that he "had the advantage of sincerely and objectively knowing the evidence, believing that we would be at this stage of the trial at some point this week."
He pointed out the magnitude of this crime by informing the jury, "I've been with the District Attorney's Office for a little over eight years now and it's my recollection that we've had no more than a dozen times, no more than twelve times in those eight years, to request [the death penalty] out of the thousands of cases ... that pass through our office."11
Gradually, the prosecutor began to stir up the fears of the jury: "I'm going to sleep well tonight, having [recommended Hance's electrocution] to you. As a matter of fact, I'm going to sleep better and safer in my home with my family if you come back with a sentence of death." He tried to convince the jury that no one could feel safe with Hance in prison, close to one's home and family.
The prisoners are not totally isolated from society. People who work in prisons, prison guards, they've got wives and children and families, and lives of their own, too. You think he's going to want to get out of prison? Do you think he's going to like it there? How do you get out of prison? You escape. Oh, he can't escape surely. A man [James Earl Ray] escaped from a prison in the hills of Tennessee two years ago that was thought to be the most secure cell in the most secure prison in the United States. Why can't this man escape from the Harris County Work Camp, or from Reidsville, for that matter?
What about those prison guards who have to guard him? What about their wives and families when he thinks no more of human life than what we know he thinks, when he's already proved he will kill, that he completely disregards human life, what about them, what about their families? You're going to subject those people to him for the next fifty years of his life?
What about the young prisoners he's going to be associated with? What about the really young people?...
Finally, he made an appeal to the patriotism and bravery of the jury, exhorting them to join in the war against crime:
How many times have you said to yourself as you pick up your morning newspaper or turn on your radio or television newscast, has the whole world gone crazy, when you read about a crime like this, has the whole world lost its mind? ... When have you said to yourself, what can I do, just one citizen, just one individual, to stop this? ... Well, it's time for somebody to do something.... You're in the batter's box, so to speak ... it's a matter of fish or cut bait, because we're right down to it, we're right down to it.
Frankly, the one thing I look for in selecting jurors in this case, the one characteristic, ... I looked for courage ... You know, we've had three wars in this Country just in my lifetime, World War II, war in Korea, war in Vietnam. In each of those wars we drafted young men, take them out of civilian life, train them, equip them, sent them to fight for us, young as seventeen, perhaps some as young as sixteen years of age. And, we've sent them off to some land halfway across the world, and we've pointed them at some individual that they didn't even know, and we've said, this person is the enemy, they are trying to destroy our way of life, when you see this person, kill him. And thank God we did it, don't get me wrong, because those individuals did save our way of life, they did protect our freedom, they're the reason we are able to live in this Country today under the system of freedom that we have. We've asked 17-year-olds to kill to protect our system, our home and our families. Do we ask any less of you in this situation?
Who is the enemy now? We're engaged in a war in this Country just as real as any of those, just as real, perhaps closer to home than any of those.... And now we're asking you to take the step to do something about this situation.
This dramatic appeal to gut emotion has no place in the courtroom, especially in a case involving the penalty of death. A sentence of death imposed after such an appeal cannot be carried out. The sentencing hearing in this case was fundamentally unfair and therefore constitutionally intolerable.12
VIII. JURY INSTRUCTIONS--SHIFTING THE BURDEN OF PROOF
Petitioner argues that under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Mason v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982), cert. denied, --- U.S. ----, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983), the trial court's jury instructions on intent and malice impermissibly shifted the burden of proof to the defense. During the course of its charge to the jury the court instructed that intent "may be inferred from the proven circumstances or by acts and conduct, or it may be presumed when it is the natural and necessary consequence of the act." Even if this charge, in isolation, were impermissible, reversal would not be compelled.
The petitioner would have to show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The instruction should be considered in light of the entire jury charge and the entire trial. Lamb v. Jernigan, 683 F.2d 1332, 1339 (11th Cir.1982).
Immediately preceding the portion of the charge in question the court had instructed the jury that the accused is presumed to be innocent until proven guilty; that a person will not be presumed to act with criminal intention; that the state must prove the existence of criminal intent beyond a reasonable doubt; that intent must be found from the evidence produced at trial; and that circumstantial evidence alone would not justify a finding of guilt unless the circumstances are entirely consistent with the defendant's guilt, are wholly inconsistent with any reasonable theory of the defendant's innocence and are so convincing as to exclude a reasonable doubt of the defendant's guilt.
These prior instructions make it unlikely that the jury interpreted the challenged instruction on intent to be an impermissible burden-shifting or conclusive presumption. Id. Moreover, the challenged instruction by itself was not unconstitutional. Unlike the invalidated charge in Sandstrom which stated that "[t]he law presumes that a person intends the ordinary consequences of his acts," Sandstrom, supra, 442 U.S. at 513, 99 S.Ct. at 2453, this charge said that "intent ... may be presumed."
Rather than being a conclusive presumption, one that a reasonable juror would interpret as requiring an inference of intent, this presumption was permissive. A reasonable jury could only interpret this language as permitting the inference described--they were allowed to draw the inference, but they were not obligated to do so. Lamb v. Jernigan, supra, 683 F.2d at 1339-40; see Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); United States v. Gaines, 690 F.2d 849, 853-54 (11th Cir.1982).
The court's instruction on malice was also valid. Reading from the statutory definition, the court told the jury that: "Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart." Ga.Code Ann. Sec. 26-1101(a) (1976).
This instruction tells the jury that a finding of malice may be based entirely on circumstantial evidence. It does not relieve the prosecution from its burden of proving malice beyond a reasonable doubt. In light of the court's explicit prior directions about circumstantial evidence, we find no error in the court's instruction on malice. Lamb v. Jernigan, supra, 683 F.2d at 1340.
IX. EXCLUSION OF MITIGATING EVIDENCE
Hance's testimony in response to questions from his standby attorney was the only evidence presented in his behalf during the sentencing phase of the trial. At one point counsel stated: "You told us just yesterday that you didn't kill these girls." After Hance responded that he did not kill them, the prosecutor objected because, "that issue has been decided, it's over and behind us, it cannot be in mitigation from punishment at this time."
Counsel explained to the judge that Hance's "thoughts around the subject are relevant." He expressed concern that the jury would "consider in aggravation the fact that he denied doing something they decided he did." He indicated that his questioning was to allow the jury "to consider his emotions for denying this crime in mitigation."
The judge allowed the questioning to proceed. Hance was then asked if he believed that he had killed the girls, if he recalled having killed the girls, if he was speaking to the court sincerely during his trial and if he believed his testimony had been true. At this point the prosecutor objected and the court sustained the objection, directing counsel not to follow this line of questioning.
Petitioner claims that by sustaining the prosecutor's objection the court prevented the jury from considering relevant mitigating evidence, thereby violating the Eighth and Fourteenth Amendments as interpreted in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).13
We find it significant that petitioner has never proffered any evidence that he was precluded from presenting. There is nothing in the record to suggest that the line of questioning that was objected to would have continued. Apparently, petitioner was trying to show the jury his reasons for pleading innocent. The questions that he was allowed to answer were sufficient for this purpose. Petitioner has failed to make out a constitutional violation.
X. REMOVAL OF PROSPECTIVE JURORS WHO OPPOSED THE DEATH PENALTY
A state may exclude for cause, related to their opposition to the death penalty, only those veniremembers who "[make] unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon v. Illinois, 391 U.S. 510, 522-23 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968) (emphasis in original); accord Adams v. Texas, 448 U.S. 38, 44-45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) ("[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."); Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979) ("[O]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Witherspoon grounds."), adhered to, 626 F.2d 396 (5th Cir.1980) (en banc).
The Fifth Circuit has strictly adhered to Witherspoon' § mandate. In Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), this Court held that a veniremember's exclusion constituted a Witherspoon violation. When asked if he could ever vote to inflict the death penalty, the challenged veniremember had replied, "No, I don't think I could." He was then asked, "You don't feel like you would be entitled to take another person's life in that fashion?" He nodded and said, "No, I could not." The Granviel Court held that these questions and answers fell far short of the automatic rejection of the death penalty required under Witherspoon. Id. at 677 (emphasis in original).
Petitioner argues that two members of the venire, Syble Melton and Mary Turpin, were improperly excluded for cause in violation of Witherspoon. We agree. Their responses regarding the death penalty were not automatic and unequivocal. On the contrary, they expressed uncertainty about their convictions and ambiguity about their feelings. Their answers did not indicate that their views about capital punishment would substantially impair the performance of their duties as jurors under oath. See Adams v. Texas, supra, 448 U.S. at 45, 100 S.Ct. at 2526.
Mrs. Melton's answers vacillated. In response to some questions she appeared firm about refusing to vote for the death penalty, but her responses to other questions indicated a lack of conviction.
PROSECUTOR: No matter what the facts or circumstances of this case might be, you do not believe that you could follow the instructions of the Court to consider the death penalty and vote to impose it, is that right?
MRS. MELTON: No, sir, as I said before, I feel there are times when the death penalty is warranted. I do not believe that I with my conscience could vote to impose the death penalty.
PROSECUTOR: No matter what the facts or circumstances of the case might be?
MRS. MELTON: In some cases I might.
Before excusing her for cause, the judge asked a final question.
THE COURT: Let me just ask her my question too, then, are you so conscientiously opposed to capital punishment that you would not vote for the death penalty under any circumstances?
MRS. MELTON: As I said before, I believe there are circumstances where the death penalty is warranted. I do not believe that I could vote for it.
Mary Turpin was even less resolute in her feelings about the death penalty. Although her initial responses to the prosecutor's questions indicated that she would not vote for a sentence of death, upon further examination she changed her mind.
COUNSEL: If you thought from the facts you heard in the whole case that that was the proper decision to make, that he should be electrocuted, could you vote that that was what you thought should be done?
MS. TURPIN: Well, this is hard, I don't know. I'm just too confused. I don't know.
* * *
* * *
THE COURT: Well, what we want to find out is if he should be found guilty, after you've heard all the circumstances about this case, do you think that there is any way that you could vote to have him executed, that is, to find for the death penalty?
MS. TURPIN: Well, I guess I could.
* * *
* * *
THE COURT: Well, that's what we need to find out whether or not you could vote for death if the circumstances of the trial, after you've learned all about it, whether or not you could, not that you would, whether you could vote to impose the death penalty?
MS. TURPIN: Well, I don't know. I just say that I don't think I could.
THE COURT: You don't think you could? I believe the juror should be excused for cause....
If veniremembers who express serious reservations about the death penalty are excluded from a jury, that jury cannot fairly represent a cross-section of the community. It is a jury "uncommonly willing to condemn a man to die." Witherspoon, supra, 391 U.S. at 521, 88 S.Ct. at 1776. Such a jury lacks the impartiality required by the Sixth and Fourteenth Amendments. Id. at 518, 88 S.Ct. at 1775. A sentence of death imposed by such a jury cannot stand. Id. at 522-23, 88 S.Ct. at 1777-78. We hold that the exclusion of Syble Melton and Mary Turpin was a constitutional violation requiring reversal of Hance's sentence.
The state argues that even if Ms. Turpin's exclusion was a Witherspoon violation it was harmless error because she was excluded only from a pool of possible alternate jurors, and would not have been considered for this jury or for an alternate position. The state's argument is precluded by Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976) (per curiam), which held that the improper exclusion of even one out of 83 veniremembers was grounds for reversal of a death sentence. The scope of this holding is clarified by Justice Rehnquist in dissent who refers to it as "a per se rule that precludes application of even the harmless-error test of Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967)." 429 U.S. at 123-24, 97 S.Ct. at 399-400; accord Burns v. Estelle, 592 F.2d 1297, 1299-1300 (5th Cir.1979), adhered to, 626 F.2d 396 (1980) (en banc); Moore v. Estelle, 670 F.2d 56, 57 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1375 (1982). The state's argument that the Witherspoon violation was harmless because two peremptory challenges remained after the jury was selected also must fall under the holding of Davis. Burns v. Estelle, supra, 592 F.2d at 1299-1300; Moore v. Estelle, supra, 670 F.2d at 57; Blankenship v. State, 280 S.E.2d 623, 623 (Ga.1981).
Petitioner's argument that the trial court denied him due process by refusing to exclude veniremember Kathryn Hamilton for cause after she showed bias in favor of the death penalty, while excluding veniremembers Turpin and Melton for their opposition, lacks merit. We read Adams v. Texas, supra, 448 U.S. at 45, 100 S.Ct. at 2526, to suggest that if veniremembers cannot be excluded because of their views against the death penalty unless those views would substantially impair the performance of their duties, the same standard should apply to a veniremember in favor of the death penalty.14
A person who favors the death penalty can be entrusted to make the choice between death and life imprisonment unless that person's bias for capital punishment is unequivocal and absolute. See Witherspoon, supra, 391 U.S. at 519, 522 n. 21, 88 S.Ct. at 1775, 1777 n. 21. In this case, Ms. Hamilton indicated that she would follow the court's instructions even though she favored imposing the death penalty. Because her decision would not be automatic, the trial court's decision not to exclude her for cause was not a denial of due process.
Petitioner claims that the trial court's failure to specifically charge the jury on the issue of venue was constitutional error. He argues that venue is an essential element of a criminal offense, Parks v. State, 212 Ga. 433, 93 S.E.2d 663 (1956), so under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it must be properly charged and proved beyond a reasonable doubt. Although under Georgia law venue is part of the state's case and must be proved beyond a reasonable doubt, Dickerson v. State, 186 Ga. 557, 199 S.E. 142 (1938), the State of Georgia treats venue as a jurisdictional fact, id., not as an element of the offense of murder; therefore, In re Winship does not apply. See Engel v. Isaac, 456 U.S. 107, 119-21, 102 S.Ct. 1558, 1567-68, 71 L.Ed.2d 783 (1982). The Constitution does not require that venue be proved beyond a reasonable doubt. See United States v. Turner, 586 F.2d 395, 397 (5th Cir.1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979).
Under Georgia law, if the trial court charges the jury generally on the law of reasonable doubt and there is sufficient evidence of venue,15 the court need not specifically charge the jury that proof of venue is a material allegation of the indictment. Harwell v. State, 230 Ga. 480, 197 S.E.2d 708, 709 (1973).
In this case the state's prima facie showing on venue was uncontradicted by the petitioner who introduced no contrary evidence. The trial court instructed the jury that each material element of the indictment must be proved beyond a reasonable doubt. The court's failure to specifically instruct on venue was therefore not error under state law. There is no question that it was not error of constitutional magnitude. See, e.g., United States v. Jenkins, 510 F.2d 495, 498 (2d Cir.1975) (court's only reference to venue was made in reading the indictment--not reversible error).
XII. EVIDENTIARY HEARING IN THE DISTRICT COURT
The written factual findings of a state court are presumed to be correct unless one of the exceptions set out in 28 U.S.C.A. Sec. 2254(d) is established. Sumner v. Mata, supra, 449 U.S. at 544-45, 101 S.Ct. at 767-68. This is true even if the factual findings are made by a state appellate court. Id. at 545-46, 101 S.Ct. at 768-69. When a state court has afforded the petitioner a full and fair evidentiary hearing on all legitimate factual issues, a district court is not required to conduct an evidentiary hearing. Heyd v. Brown, 406 F.2d 346, 347 (5th Cir.), cert. denied, 396 U.S. 818, 90 S.Ct. 53, 24 L.Ed.2d 69 (1969).
Hance submitted a 35-page petition to the district court, alleging numerous constitutional violations and claiming that he was denied a full evidentiary hearing on these matters. The district court denied his application without a hearing. After a study of the record, we conclude that the State of Georgia has afforded the petitioner a full and fair hearing on all the factual issues involved in this case. The district court's denial of an evidentiary hearing was therefore proper.
For the reasons stated in Parts VII and X of this opinion, petitioner's death sentence must be set aside. The case is remanded to the district court with directions that the State of Georgia determine within a reasonable time whether (1) to conduct a new sentencing proceeding, in the manner provided by state statute, or (2) to vacate petitioner's sentence and impose a sentence less than death in accordance with state law.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.
28 U.S.C.A. Sec. 2254(d) provides that:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
"The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023
A Pate violation may occur only in the time frame encompassed by the trial itself and immediately related proceedings. Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979)
In Pate, supra, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, the defendant had a long history of disturbed and deranged behavior. He imagined hearing threatening voices, he had visions of snakes and elephants, and he often walked about in a complete daze. Id. at 380, 86 S.Ct. at 839. In Lee v. State of Alabama, 386 F.2d 97 (5th Cir.1967) (en banc), a lunacy commission had found the defendant insane less than four months before his trial because his feelings and emotions were governed by delusions of grandeur and of persecution. Id. at 99. In Acosta v. Turner, supra, 666 F.2d 949, defendant, after commitment to a mental hospital for more than 18 months, was diagnosed as still suffering from paranoid schizophrenia
In Jackson v. Caldwell, 461 F.2d 682 (5th Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 334, 34 L.Ed.2d 257 (1972), no Pate violation was found although the defendant was mentally retarded, had previously been discharged from the army because of mental illness, and was subject to schizophrenic fits of anger and paranoia. He had bludgeoned his wife to death, buried her in a field, and planted peas in the field
In order to assist the defendant and move the proceedings along, the court directed the public defender to act as "standby counsel", subject to Hance's instructions. See Faretta, 422 U.S. at 834-35 n. 46, 95 S.Ct. at 2541 n. 46
Several factors should be considered in evaluating prosecutorial misconduct in a habeas case: (1) the degree to which the challenged remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether they are isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and, except in the sentencing phase of capital murder trials, (4) the strength of the competent proof to establish the guilt of the accused. See United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976)
Such "emphatic and personalized vouching" for the integrity of the police was considered reversible error in United States v. Ludwig, 508 F.2d 140, 143 (10th Cir.1974)
In United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978), the former Fifth Circuit Court stated that "[a]n attorney may not express his own opinion as to the credibility of witnesses."
The prosecutor also made several objectionable remarks about petitioner's character, implying that he was an "animal" and alluding to the fact that he had fathered an illegitimate child
The prosecutor failed to point out that for four of his eight years in the District Attorney's Office, between the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its decision in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the constitutionality of the Georgia death penalty statute was very much in doubt
Using the first three factors listed in note 7, we conclude that the prosecutor's inflammatory remarks were deliberate, extensive, and highly prejudicial to the accused
In Eddings the Supreme Court stated that "the sentencer [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 102 S.Ct. at 874
Dictum in Stroud v. United States, 251 U.S. 15, 20-21, 40 S.Ct. 50, 52, 64 L.Ed. 103 (1919), reh'g denied, 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317 (1920), indicated "it may well be" that a challenge for cause to a veniremember who was "in favor of nothing less than capital punishment" should have been sustained. Petitioner relies on Stroud for the proposition that a juror should be excused for cause if that juror is reasonably certain to render a verdict of death. But Stroud was not a habeas case, and the Supreme Court did not indicate that the trial court's refusal to excuse for cause was an error of constitutional magnitude
Evidence as to venue, though slight, is sufficient where there is no conflicting evidence. Ellard v. State, 233 Ga. 640, 212 S.E.2d 816, 818 (1975)
981 F.2d 1180
William Henry Hance, Petitioner-Appellant,
Walter Zant, Warden, Georgia Diagnostic & Classification Center,
Federal Circuits, 11th Cir.
March 11, 1993
Appeal from the United States District Court for the Middle District of Georgia.
Before ANDERSON, COX and BIRCH, Circuit Judges.
ANDERSON, Circuit Judge:
Petitioner, William Henry Hance, who was convicted of murder in state court and sentenced to death, appeals from the district court's denial of his petition for habeas corpus. For the reasons that follow, we affirm the decision of the district court.
A. Procedural History
William Henry Hance was convicted of attempted theft by extortion and the murder of Gail Jackson; he was sentenced to death for the murder. Hance's conviction and sentence of death were affirmed by the Georgia Supreme Court. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067 , 101 S.Ct. 796, 66 L.Ed.2d 611 (1980). Hance unsuccessfully sought state habeas corpus relief in the Superior Court of Butts County, Georgia; the Georgia Supreme Court denied his Certificate of Probable Cause to Appeal. The United States Supreme Court denied certiorari. Hance v. Zant, 456 U.S. 965 , 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982).
Hance then filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia. The district court denied the petition, and Hance appealed to this court. This court affirmed Hance's conviction but granted sentence stage relief on the grounds that the prosecutor's closing argument rendered the sentencing proceeding fundamentally unfair, and that two jurors were improperly excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A new sentencing trial was ordered. Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210 , 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).
At his second trial, Hance was again sentenced to death. The Georgia Supreme Court affirmed the death sentence in Hance v. State, 254 Ga. 575, 332 S.E.2d 287, cert. denied, 474 U.S. 1038 , 106 S.Ct. 606, 88 L.Ed.2d 584 (1985). Hance filed a petition for habeas corpus in the Superior Court of Butts County, which the court denied after holding an evidentiary hearing. The Georgia Supreme Court affirmed the denial of habeas corpus in Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184 (1988), cert. denied, 490 U.S. 1012 , 109 S.Ct. 1658, 104 L.Ed.2d 172 (1989). Hance then filed a petition for habeas corpus in the District Court for the Middle District of Georgia; the district court denied the petition without holding an evidentiary hearing. This appeal followed.
B. The Relevant Facts
On February 27, 1978, Gail Jackson disappeared. The car she had been driving was discovered on March 5, 1978, at the Sand Hill Bar and Grill in Columbus, Georgia. Between March 3, 1978, and April 5, 1978, Chief Curtis E. McClung of the Columbus Police Department received a series of letters written on United States Army stationery from an individual who identified himself as "Chairman of the Forces of Evil."
The subjects of the letters were Ms. Jackson and Irene Thirkield, both black women.1 The writer threatened them with death if the Columbus, Georgia "stocking strangler" was not apprehended, or, in the alternative, if the "Forces of Evil" did not receive $10,000.
A letter received on March 27, 1978, stated that one of Ms. Jackson's arms would be broken and that there would be a sharp blow to her head to cause death. The author indicated that the authorities would receive a telephone call to detail the location on Sand Hill where the body was located.
On March 30, 1978, Fort Benning Military Police telephone operators and the Columbus Police Communications Department received telephone calls from a black male who identified himself as "Chairman of the Forces of Evil." The caller described the place where Jackson's body was located; the body was found there that day. Jackson's entire face and the front portion of her skull had been smashed; portions of her jawbone, teeth, bone chips, and partial teeth were discovered near the site. Also, her left elbow had been completely dislocated. According to the medical examiner, the cause of death was multiple blows to the head that could have been inflicted with a tire tool or jack handle.
On April 3, 1978, the body of Irene Thirkield was recovered on the Fort Benning reservation. The victim's head was virtually missing; she had sustained considerable skull damage. The cause of death was massive blunt force trauma to the head that could have been inflicted with an automobile jack. There were other similarities between the circumstances of the deaths of Jackson and Thirkield. Both bodies were recovered from wooded semi-secluded areas not far from access roads, and in the same geographical area. Both victims had been dragged from the road. Both were black females who were discovered in various stages of undress.
Fort Benning Criminal Investigation personnel learned that Hance was the last person seen with Irene Thirkield. On April 4, 1978, after being advised of his Miranda rights, Hance agreed to go to the headquarters office. In his statement to the authorities, Hance admitted to capturing the women, writing letters to the Columbus Police Department, and placing the telephone calls, asserting that his actions resulted from threats made to Hance by the "Forces of Evil." On April 5, 1978, Hance indicated that he wished to confess, gave a statement, and signed it.
In his confession, Hance stated that Jackson propositioned him for $20.00 at the Sand Hill Bar and Grill. He left with her, and had driven a short distance when she began to disrobe. Hance stopped the vehicle, became upset, and grabbed Jackson. When she attempted to escape, he struck her with a "karate chop" across the head. She fell across the door, bleeding. He pulled her into the woods and returned to his vehicle, where he picked up a jack handle before returning to the woods. Upon finding Jackson still breathing, he hit her in the head until she was dead. Hance also admitted to killing Thirkield.
On April 6, 1978, Hance gave another statement. In that statement, Hance indicated that Jackson's proposition had severely upset and angered him. He admitted to hearing "something pop" while dragging her into the woods. Hance further admitted that he was the only member of the "Forces of Evil."
At trial, clinical psychologist Lewis R. Lieberman testified for the defense that Hance had a personality disorder. Characteristic traits of the disorder include egocentrism, an inability to empathize with other people, and poor judgment. Dr. Lieberman stated that Hance had difficulty in ever admitting that he had done something wrong, and that he would try to cover up a mistake or blame others.
Dr. Lieberman testified that there was no organic basis for Hance's personality disorder, and that although he had difficulty controlling his actions, Hance knew the difference between right and wrong. Dr. Lieberman indicated that the ability to recognize and admit that one had done wrong would be a sign of improvement, but on cross-examination admitted that people with personality disorders rarely improve over time, and that Hance had not "mellowed" in the six years since Dr. Lieberman had first examined him.
Other defense witnesses included First Sergeant Ronald R. Nelson, an Army officer who testified that Hance was dependable, trustworthy, and a good soldier, but that Hance had experienced financial and marital problems and had been under stress at the time in question.
Other witnesses testified that Hance had not caused problems while incarcerated. Charles Westcott testified that he had known Hance for twenty years and that Hance was friendly, courteous, industrious, and not a problem to the community. Westcott also stated that Hance's invalid mother had died as a result of a physical attack and rape.
Hance testified that he was divorced during March, 1977, and that money was a problem. He stated that his mother's assailant was never caught and that the attack had sickened him ever since. He said that he did not know why he killed Gail Jackson, and that she was not personally known to him. He admitted killing Irene Thirkield, but alleged that he "had lost all sense of control" and that his "mind flipped." He accepted responsibility for the Jackson murder, stated that he had begged God's forgiveness, and asked the jury to forgive him. He stated that in the six years following his first conviction, he had grown physically and spiritually and had made peace with God.
The jury sentenced Hance to death for the Jackson murder, finding that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim.
A. Ineffective Assistance of Counsel.
Hance argues that his attorney at the resentencing trial, Thomas Flournoy, rendered ineffective assistance of counsel by failing to effectively investigate and present evidence of Hance's mental illness, and by failing to adequately investigate Hance's background or to contact any members of his family.2
As for Flournoy's failure to investigate Hance's background, we must defer to the state habeas court's fact finding that Hance instructed Flournoy not to contact and involve the members of his family, and that Flournoy complied with his client's instructions because he feared that if he did not, he would lose Hance's cooperation in the defense strategy. Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184, 190-91 (1988), cert. denied, 490 U.S. 1012 , 109 S.Ct. 1658, 104 L.Ed.2d 172 (1989); see 28 U.S.C. 2254(d).3
Flournoy testified that he had great difficulty dissuading Hance from denying that he had committed the murders at the resentencing trial. 373 S.E.2d at 189. Given Hance's conviction and the overwhelming evidence of guilt, Flournoy thought that this strategy would be implausible and unproductive. 373 S.E.2d at 190-91. Once Flournoy persuaded Hance that the better strategy would be to admit guilt and express remorse, he complied with Hance's insistence that his family not be contacted or involved rather than risk losing Hance's cooperation in "the only viable defense that he had." 373 S.E.2d at 190.
Although Flournoy was prevented from contacting Hance's family, he did investigate and present substantial mitigating evidence. First Sergeant Ronald R. Nelson testified that Hance was dependable, trustworthy, and a good soldier who got along well with his peers. Nelson stated that Hance was not violent and that he had never seen him lose his temper, but alluded to Hance's financial and marital problems. Charles M. Westcott testified that he had known Hance for twenty years, and that Hance was friendly, courteous, industrious, and not a problem to the community.
Westcott stated that Hance came from a hardworking, church-going family, and that everyone liked him. Westcott also testified that Hance's invalid mother had died as a result of a physical attack and rape. Westcott concluded that Hance had been rehabilitated, that he was a bright and exceptionally talented man, and that his life should be spared. Richard Miles, the warden at the Muscogee County Jail, testified that Hance had caused no problems at the jail.
Assistant Warden Daniel Bettis testified as to Hance's daily activities at the jail and stated that he had experienced no problems with him. Aaron Roquemore, counselor at the State Prison in Jackson, Georgia, testified that Hance had caused no problems at the State Prison, and that he was adjusting appropriately to his confinement. Finally, Stephen Clemmons discussed the importance of mercy and forgiveness and urged the jury to spare Hance's life.
Under all of the circumstances, we conclude that Flournoy's decision to comply with Hance's instruction not to contact family members did not fall below the wide range of reasonable professional assistance held to be sufficient under Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Hance also argues that Flournoy was ineffective with respect to the evidence of his mental illness. Flournoy engaged Dr. Lewis Lieberman, a clinical psychologist, to testify on Hance's behalf. Dr. Lieberman testified that Hance suffered from atypical personality disorder, characterized by egocentrism and an inability to feel empathy for others. According to Dr. Lieberman, Hance is impulsive, suffers from poor judgment, tries to blame his mistakes on others, and has trouble admitting that he has done something wrong.
Dr. Lieberman also testified that he suspected that Hance had displayed these characteristics throughout his lifetime and that his chances of rehabilitation were poor. However, Dr. Lieberman stated that if Hance could recognize and admit that he had done something wrong, it would be a sign of progress.4 Hance argues that Dr. Lieberman's testimony discredited the entire defense, which was that Hance had committed the murder but was remorseful.
The state habeas court found that Flournoy had evaluated evidence from six to eight mental health experts, and that only Dr. Lieberman was willing to testify that Hance suffered from a mental disorder and diminishment of mental capacity. We must defer to this finding of fact.5 Under the circumstances, Flournoy's performance in selecting Dr. Lieberman was clearly not deficient.
Although Dr. Lieberman's testimony was not entirely favorable, he did testify that Hance suffered from a mental disorder, which the jury might have perceived as diminishing his culpability. Also, although Dr. Lieberman testified that Hance's prognosis was poor, he did state that if Hance could recognize and admit that he had done something wrong, this would be a sign of progress. The jury could have accepted Hance's subsequent expression of remorse as an indication that he could be rehabilitated.
Hance also seems to argue that Flournoy was ineffective for presenting Dr. Lieberman rather than no expert witness. However, as explained above, Dr. Lieberman's testimony contained both favorable and unfavorable elements. Under all of the circumstances, we conclude that Flournoy's choice of Dr. Lieberman from the available psychologists and his decision to use Dr. Lieberman rather than present no expert psychological testimony were reasonable.6
Having found no deficiency with respect to the performance prong of the Strickland test, we decline to address the prejudice prong.
B. Other arguments.
The only aggravating circumstance argued to the jury at Hance's resentencing trial was that the murder involved an aggravated battery to the victim.7 Hance argues that because the only evidence of an aggravated battery was the dislocation of Gail Jackson's elbow shortly before her death, the aggravating circumstance of aggravated battery was applied in an unconstitutionally vague and overbroad manner.
However, as the Georgia Supreme Court found, the victim was first struck on the head with a karate chop. Moreover, while still alive she was beaten with a tire jack with such force that when her body was discovered her face was completely missing. Hance v. State, 254 Ga. 575, 332 S.E.2d 287, 291-92, cert. denied, 474 U.S. 1038 , 106 S.Ct. 606, 88 L.Ed.2d 584 (1985). There was ample evidence of the type of aggravated battery contemplated by O.C.G.A. § 17-10-30(b)(7).
During its deliberations, the jury at the resentencing trial requested a definition of "life imprisonment" from the trial court. The court declined to respond to the question; Hance was sentenced to death soon thereafter. Hance argues that the trial court's failure to define one of the jury's sentencing options was reversible error. This argument is without merit. See California v. Ramos, 463 U.S. 992, 1013-14, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171 (1983).
Hance raises several other issues, including collateral estoppel with respect to whether Hance's statements following his arrest should have been suppressed, ineffectiveness of counsel on direct appeal, the trial court's failure to give a simple battery instruction to the jury, and the contention that Hance's death sentence was based upon inaccurate evidence. Even assuming that they are not procedurally barred, these claims are all without merit and warrant no discussion.
1 Hance later admitted to killing Thirkield also. The instant proceeding only involves his conviction for the murder of Gail Jackson. Hance was convicted of the Thirkield murder in military court, but his conviction was reversed by the United States Court of Military Review
2 Although we doubt that Hance has waived his right to assert the claim of ineffective assistance of counsel under the circumstances of this case, we need not affirmatively decide this issue in light of our disposition of the merits of the ineffectiveness claim
3 Hance is not entitled to an evidentiary hearing to demonstrate that Flournoy's testimony at the state habeas hearing was perjury. Hance's attorney at the state habeas proceeding had every opportunity to adduce evidence of perjury, and Hance now proffers no evidence that was not available at the state habeas hearing. Hance argues that Flournoy had a telephone conversation with Hance's habeas attorney shortly before the evidentiary hearing, and that what Flournoy said in this telephone conversation contradicted Flournoy's testimony at the hearing on the issue of whether or not Hance instructed Flournoy not to involve members of Hance's family. The state habeas court credited Flournoy's testimony that Hance had instructed Flournoy not to involve his family. There is ample support in the record for this finding. We must defer to the state habeas court's implied credibility determination in favor of Flournoy. Green v. Zant, 715 F.2d 551, 557 (11th Cir.1983), cert. denied, 469 U.S. 1098 , 105 S.Ct. 607, 83 L.Ed.2d 716 (1984)
4 Hance also argues that Flournoy was ineffective because he failed to provide information regarding Hance's family background to Dr. Lieberman. As we have already held, Hance's instruction that Flournoy not contact his family effectively precluded Flournoy from furnishing such information to Dr. Lieberman
5 Hance's only argument against our deferring to the state courts' fact findings is that he is entitled to an evidentiary hearing based on Flournoy's perjury in the state court. We have already rejected this argument
6 It is interesting to note that the testimony of Dr. Allsopp, which Hance now proffers, is not entirely favorable either. Dr. Allsopp's affidavit indicates that Hance suffers from a personality disorder with paranoid, dependent, and narcissistic features, as well as atypical depression. Dr. Allsopp characterized Hance as impulsive, alienated, hypersensitive to criticism, paranoid, and argumentative. Dr. Allsopp noted that individuals such as Hance are often sullen, angry, demanding people who excessively utilize a transfer of blame mechanism, and that Hance's perception of man-woman relationships is marked by feelings of "sadness, pain, hostility and homicidal ideation." Dr. Allsopp also observed that such people's "seething anger, combined with their sensitivity to criticism and suspiciousness can lead to unpredictable and violent outbursts." Although Dr. Allsopp did connect Hance's crimes to the difficulties he experienced during childhood, the prosecution could have used his detailed and generally unflattering analysis to argue that Hance is dangerous to society
7 O.C.G.A. § 17-10-30(b)(7) lists as an aggravating circumstance: "The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."
O.C.G.A. § 16-5-24 defines "aggravated battery" as follows: "(a) A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof."