United States Court of Appeals,
Eleventh Circuit.
No. 94-2772.
Frank Elijah SMITH, Petitioner-Appellee,
v.
Harry K. SINGLETARY, Respondent-Appellant.
Aug. 1, 1995.
Appeal from the United States District Court for the Northern
District of Florida. (No. TCA-90-40035-WS), William Stafford, Chief
Judge.
Before TJOFLAT, Chief Judge, HATCHETT and EDMONDSON, Circuit
Judges.
PER CURIAM:
In this capital case, the sentencing court violated Hitchcock
v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).
This appeal requires us to determine whether this error was
harmless under the standard articulated in Brecht v. Abrahamson, --
- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 1710 (1993). We affirm
the district court's determination that the error was not harmless
under the Brecht standard.
FACTS
On December 12, 1978, appellee, Frank Elijah Smith, and two
accomplices, Johnny Copeland and Victor Hall, robbed a convenience
store in Wakulla County, Florida. They also abducted the store
clerk, took her to a motel, and sexually assaulted her. They then
drove the clerk to a wooded area. Smith and Copeland took the
clerk into the woods while Hall waited in the car. While waiting,
Hall heard three gunshots. Copeland and Smith then returned to the
car without the clerk. Two days later, the clerk's body was found
with three bullet wounds in the back of her head.
PROCEDURAL HISTORY
A Florida jury found Smith guilty of first-degree murder and
recommended the death penalty. In accordance with the jury's
recommendation, the court sentenced Smith to death on the basis of
six aggravating factors: (1) that he had two prior convictions for
violent felonies; (2) that he committed the murder in the course
of a kidnapping; (3) that he committed the murder to avoid arrest;
(4) that he committed the murder for pecuniary gain; (5) that the
murder was heinous, atrocious, and cruel; and (6) that the murder
was cold, calculated, and premeditated. The court found only one
mitigating factor: Smith was nineteen years old when he committed
the crime.
Smith's conviction and death sentence were affirmed on direct
appeal, and the United States Supreme Court denied his petition for
a writ of certiorari. Smith v. State, 424 So.2d 726 (Fla.1982),
cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379
(1983). Smith then commenced his first habeas corpus petition,
which was denied in both state and federal court. Smith v. State,
457 So.2d 1380 (Fla.1984); Smith v. Dugger, 840 F.2d 787 (11th
Cir.1988). Smith, however, filed a petition for rehearing with
this court. This court denied Smith's petition without prejudice
so that he could present an unexhausted Hitchcock claim to the
Florida courts. Smith v. Dugger, 888 F.2d 94 (11th Cir.1989).
On July 31, 1989, Smith filed a second habeas corpus petition
in state court. A Florida trial court found all of Smith's claims
to be procedurally barred, with the exception of his Hitchcock
claim, which it denied on the merits. On appeal, the Florida
Supreme Court held that the sentencing court had committed a
Hitchcock error, but that under the standard articulated in Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),
the error was harmless. Smith v. State, 556 So.2d 1096 (Fla.1990).
Smith then filed a petition in the district court. The
district court agreed that the sentencing court had committed a
Hitchcock error, but disagreed with the Florida Supreme Court's
determination that the error was harmless; instead, the district
court granted Smith relief on his Hitchcock claim because it found
that the error was not harmless under Chapman. Smith v. Dugger,
758 F.Supp. 688 (N.D.Fla.1990). This court affirmed. Smith v.
Singletary, 970 F.2d 766 (11th Cir.1992).
The state then petitioned for a writ of certiorari. On April
26, 1993, the Supreme Court granted the state's petition and
remanded the case for reconsideration in light of Brecht, which it
had recently decided. Singletary v. Smith, --- U.S. ----, 113
S.Ct. 1940, 123 L.Ed.2d 646 (1993). On remand, the district court,
applying Brecht, again determined that the Hitchcock error was not
harmless. The state now appeals the district court's decision.
ISSUE
The only issue on appeal is whether the sentencing court's
Hitchcock error was harmless under the Brecht standard.
DISCUSSION
"[I]n capital cases, "the sentencer' may not refuse to
consider or "be precluded from considering' any relevant mitigating
evidence." Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822 (quoting
Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90
L.Ed.2d 1 (1986)). The state concedes that the sentencing court
committed a Hitchcock error in this case.
"Harmless error is a mixed question of law and fact subject
to de novo review." Bonner v. Holt, 26 F.3d 1081, 1083 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1328, 131 L.Ed.2d
207 (1995). While this court has plenary review of the ultimate
determination of whether an error is harmless, we will only review
the findings of fact which underlie that determination for clear
error. See Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir.1995)
(" "[U]ltimate' determination of ... a mixed question of law and
fact ... is subject to de novo review[, but "w]e will not disregard
or overturn findings of fact made by the district court unless they
are clearly erroneous.' ") (quoting Jurek v. Estelle, 623 F.2d 929,
932 (5th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68
L.Ed.2d 203 (1981)); Smith v. White, 815 F.2d 1401, 1407 (11th
Cir.) ("[A] federal district court's ultimate legal conclusion ...
is subject to independent review by an appellate court in a habeas
action, although subsidiary factual findings by the district court
are conclusive unless clearly erroneous."), cert. denied, 484 U.S.
863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987).
In determining whether a Hitchcock error is harmless, a
habeas corpus court must consider both the mitigating evidence
presented at sentencing as well as mitigating evidence that could
have been presented, but which "the state trial court prevented the
petitioner from presenting." Aldridge v. Dugger, 925 F.2d 1320,
1329 (11th Cir.1991). In other words, a habeas corpus court must
consider all potential mitigating evidence that would have been
presented, but for the Hitchcock error. See Booker v. Dugger, 922
F.2d 633, 636 (11th Cir.), cert. denied, 502 U.S. 900, 112 S.Ct.
277, 116 L.Ed.2d 228 (1991). In determining whether potential
mitigating evidence would have been presented, a district court
will usually have to weigh "post-trial affidavits or testimony of
trial counsel and other witnesses and proffers of nonstatutory
mitigating evidence claimed to have been available at the time of
sentencing." Knight v. Dugger, 863 F.2d 705, 708 (11th Cir.1988).
In this case, the state concedes that defense counsel made the
following four arguments to the jury, which did not receive
appropriate consideration due to the Hitchcock violation: "(1) the
defendant did not personally kill the victim, (2) the defendant was
only fifteen years old when he committed his prior robberies, (3)
the defendant had been drinking gin and smoking marijuana the
evening of the crime, and (4) the defendant was influenced by the
dominant personality of his accomplice." Smith, 758 F.Supp. at
693. In addition to these four circumstances, the district court
reviewed the record and various proffers, and found that the
sentencing court precluded the presentation of the following ten
mitigating factors:
[5] Smith tried to dissuade his accomplice, Johnny Copeland,
from killing the girl; [6] Smith was guilty under the felony
murder doctrine; [7] a "cooperating" accomplice, Victor Hall,
was expecting to receive a life sentence, with eligibility for
parole after eight or ten years, even though he too was guilty
of the same three underlying felonies....
... [8] [Smith] had a long-term history of alcohol and
substance abuse; [9] [Smith] suffered from grand mal
epilepsy; [10] [Smith] was, for all practical purposes,
abandoned by his mother and abused by his grandmother; [11]
[Smith] had a history of childhood deprivation including
malnourishment, lack of adequate parenting, inadequate
clothing and shelter, and lack of medication for his medical
needs, especially his epilepsy; [12] [Smith] was mistakenly
incarcerated at an adult institution when he was convicted of
robbery at age 15; [13] [Smith] was known to be non-violent,
meek and soft-spoken; and [14] [Smith] was diagnosed as
having diffuse and long-standing brain damage, consistent with
his history of alcohol abuse and epilepsy disorder.
Smith, 758 F.Supp. at 694. The state argues that the sentencing
court did not prevent Smith's counsel from presenting evidence
concerning these last ten circumstances; instead, counsel
strategically chose not to present such evidence. Therefore, we
should not consider these mitigating factors when conducting our
harmless error review.
Although not cited, the state's argument resembles the one
made in Bolender v. Singletary, 16 F.3d 1547 (11th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). In
Bolender, the district court found that the sentencing court did
not preclude the presentation of mitigating background evidence.
Bolender, 16 F.3d at 1566. Relying on the district court's factual
determination, this court concluded that "[t]he decision not to
introduce the background evidence was the product of strategy,"
and, therefore, the sentencing court did not commit a Hitchcock
violation. Bolender, 16 F.3d at 1566. The factual and procedural
posture of Bolender, however, make it distinguishable. Unlike
Bolender, the district court in this case specifically found that
the sentencing court precluded the presentation of the above
mitigating factors, and, as we indicated in our previous decision,
"the record well supports the district court's findings of fact."
Smith, 970 F.2d at 766.1 Thus, the Hitchcock error in this case
included the improper consideration of mitigating evidence that was
in fact presented as well as the preclusion of other potential
mitigating evidence. As a result, in conducting our harmless error
analysis, we must consider all of the fourteen mitigating
circumstances listed above (the four that were presented and the
ten that were precluded from presentation).
When reviewing trial errors for harmlessness, federal habeas
corpus courts no longer utilize the Chapman "harmless beyond a
reasonable doubt" standard; instead, they must apply the less
onerous standard described in Kotteakos v. United States, 328 U.S.
750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See Brecht, --- U.S. at
----, ----, 113 S.Ct. at 1714, 1722.2 "Hitchcock errors are "trial
errors' governed by Brecht." Horsley, 45 F.3d at 1492; see also
1
In other words, the district court did not clearly err in
making its findings of fact, nor did it commit an abuse of
discretion in denying the state's belated request for an
evidentiary hearing.
2
We note that the circuits are split as to whether the
Kotteakos standard should be applied if the state courts have not
conducted a harmless error analysis under Chapman. Compare Tyson
v. Trigg, 50 F.3d 436, 446-47 (7th Cir.1995) (federal habeas
corpus courts should apply the Kotteakos standard even if state
courts have not conducted a Chapman analysis); Horsley v. State
of Ala., 45 F.3d 1486, 1492 n. 11 (11th Cir.1995) (same); with
Horsley, 45 F.3d at 1498 n. 3 (Hatchett, J., dissenting) (Chapman
standard applies when a federal habeas corpus court is the first
court to conduct a harmless error analysis); Williams v. Clarke,
40 F.3d 1529, 1540-41 (8th Cir.1994) (same), cert. denied, ---
U.S. ----, 115 S.Ct. 1397, 131 L.Ed.2d 247 (1995); Fields v.
Leapley, 30 F.3d 986, 991 (8th Cir.1994) (same); Starr v.
Lockhart, 23 F.3d 1280, 1291-92 (8th Cir.) (same), cert. denied,
--- U.S. ----, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994); Orndorff
v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993) (same), cert.
denied, --- U.S. ----, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994).
We are not concerned with this split, however, because the
Florida Supreme Court conducted a Chapman harmless error analysis
in this case. Thus, the Kotteakos standard clearly applies.
Bolender, 16 F.3d at 1567. Therefore, we must decide whether the
Hitchcock error in this case "had substantial and injurious effect
or influence in determining" Smith's death sentence. Brecht, ---
U.S. at ----, 113 S.Ct. at 1712 (quoting Kotteakos, 328 U.S. at
776, 66 S.Ct. at 1253).
The Supreme Court has recently clarified that "[w]hen a
federal judge in a habeas proceeding is in grave doubt about
whether a trial error of federal law had "substantial and injurious
effect or influence in determining the jury's verdict,' that error
is not harmless. And, the petitioner must win." O'Neal v.
McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 994, 130 L.Ed.2d 947
(1995). Thus, Smith points out that if we have grave doubt as to
whether the Hitchcock error was harmless, we must rule in his
favor. Given the district court's factual determinations
concerning the wealth of mitigating evidence that was both
presented and precluded, we can only conclude that the Hitchcock
error in this case had a substantial effect on the outcome of
Smith's sentence.
CONCLUSION
Accordingly, we affirm the district court's order granting
Smith habeas corpus relief because the Hitchcock error committed at
his sentencing was not harmless under the Brecht standard.
AFFIRMED.