Between March 3 and April 5, 1978, Curtis McClung, the police chief of Columbus, Georgia, received five hand-printed letters on United States Army stationery from a writer who signed himself Chairman of the Forces of Evil. The city was then living through the Stocking Strangler murders of older white women, and the letters claimed that a white vigilante group had kidnapped two Black women, Gail Jackson and a woman called only Irene, and would kill them unless the strangler was caught by June 1 or $10,000 was paid. A sixth letter went to the local newspaper. Jackson, whose legal name was Brenda Gail Faison and who also used the name Gail Bogen, was already dead. On or about February 28 a soldier from Fort Benning had picked her up at the Sand Hill Bar, knocked her unconscious with a karate chop when she began to undress in his car, and beaten her face with a jack handle. Irene Thirkield, last seen leaving Vice Mitchell’s tavern with a soldier on March 15, was killed the same way and left behind a pile of logs on the post. On March 30 and April 3 a caller claiming to speak for the Forces of Evil told the military police where to find each body. His company commander and first sergeant thought the voice on the tapes belonged to William Henry Hance, a Black soldier in their unit, a witness put him with Thirkield at the tavern, and after two days of questioning by Army investigators, the FBI and the Columbus police he signed statements on both killings. A fingerprint on one of the letters was his.
These five opinions follow the case for fifteen years. Hance chose to defend himself at his 1978 trial, with a lawyer on standby, and a Muscogee County jury convicted him on December 15 of Faison’s murder and of attempted theft by extortion over the ransom demand, and sentenced him to death. The Supreme Court of Georgia affirmed in 1980. In January 1983 the federal Eleventh Circuit let the conviction stand and set the sentence aside. The prosecutor had told the jurors he would “sleep better and safer in my home with my family” if they returned death, reminded them that James Earl Ray had escaped from a Tennessee prison, asked what would become of the guards’ wives and children, and told them they were “in the batter’s box,” and the court held that this appeal to the fears of an already aroused jury had made the sentencing fundamentally unfair. Two women in the jury pool had also been excused for doubts about capital punishment that were uncertain rather than absolute. A second jury, with Hance acting as co-counsel, returned death again in 1984. Georgia affirmed that sentence in 1985 and in 1988 turned down his claim that he had been poorly represented, and in January 1993 the Eleventh Circuit rejected the same claim against his resentencing lawyer, Thomas Flournoy, who had been told by Hance not to contact his family and who called the one psychologist, out of six to eight he consulted, willing to testify that Hance had a mental disorder.
The rest happened outside these pages. Six execution dates were set and canceled, and in the final weeks Hance’s lawyers argued that two psychiatrists had found him mildly retarded, with physical brain damage, and that Georgia’s ban on executing retarded prisoners had been passed only after his resentencing. Gayle Lewis Daniels, the only Black juror at the 1984 resentencing, said in a sworn statement that she had never voted for death, that the foreman ignored her, and that she answered yes out of fear when the jurors were polled. None of those claims is decided in any opinion printed here. Hance was electrocuted at the Georgia Diagnostic and Classification Center in Jackson at 10:10 p.m. on March 31, 1994. He was forty-two.
Five published opinions, printed in full and in date order: the two Supreme Court of Georgia decisions on direct appeal, from 1980 and 1985, that court’s 1988 habeas ruling, and the Eleventh Circuit’s decisions of 1983 and 1993. They come from the Harvard Law School Library’s digitization of the official reports and are government records with nothing to clear. The digitization was not clean everywhere, and the worst of it falls on the 1983 opinion in the very passage that explains why the first death sentence fell. One sentence there begins “The-s&nt&ncing-phase-.of a capital 1 trial in Georgia,” another has the prosecutor starting “ouTTEe'sentencing hearing,” and the court’s holding prints as “error of constituí tional dimension.” The 1993 opinion cites the 1985 decision as “332 5.E.2d.” We have left every slip as it came rather than guess at a correction, and the official reports cited in each heading carry the clean text. Five words the typesetter broke across lines, among them Thirkield and Flournoy, have been closed up where the opinions spell them whole elsewhere.
Hance was tried and sentenced in Georgia for one killing, Gail Faison’s. Irene Thirkield runs through every opinion because the state used her death, and the letters that named her, to show a pattern, and the 1985 court let that evidence into the resentencing. A footnote in the same opinion records defense counsel telling the trial judge that Hance had been court-martialed and convicted of her murder, that the conviction was reversed on appeal and that he was never retried. Some published accounts describe a later military conviction and death sentence. These opinions cannot settle which account is right, and we have not seen the military record. The Stocking Strangler murders were a separate case: Carlton Gary, indicted for three of them in May 1984, is named once in the 1985 opinion, and nothing here connects the two men except the use Hance made of the strangler in his letters.
The two women whose removal from the first jury pool cost Georgia its 1978 death sentence appear here as S.M. and M.T., and a third prospective juror as K.H. The court printed their names and their answers under questioning, but they were private citizens called for jury service and nothing more. We have done the same for C.W., a friend of twenty years who testified for Hance at the resentencing, for B.B., the sister whose affidavit the 1993 court summarizes, and for S.C., who spoke to the jury about mercy. Gail Faison and Irene Thirkield are named, and so are the police, the Army investigators, the jail and prison staff, the psychologists and the lawyers, each of whom appears in a working role. No other word in the opinions has been changed.
36012.
HANCE v. THE STATE.
[OPINION BY Undercofler, Chief Justice. type=majority]
Undercofler, Chief Justice.
The appellant, William Henry Hance, was convicted by a jury in the Superior Court of Muscogee County of the murder of Gail Faison and attempted theft by extortion. He was sentenced to death for the murder and five years imprisonment for the attempted extortion. This is his appeal.
Summary of Facts.
From the evidence presented at trial, the jury was authorized to find the following facts:
On or about February 28, 1978, the appellant, 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. The appellant 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 the appellant for no other reason than the victim was a prostitute, became enraged. He grabbed the victim and as she tried to get away, he hit her with a karate chop across her head. She fell unconscious. The appellant 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 the victim’s entire face was destroyed and bone fragments were scattered about the area. Some of the victim’s brain tissue was literally beaten from the skull. The force of the appellant’s attack was so great it produced a depression in the ground behind the victim’s head. The appellant then buried the victim’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, the appellant, 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 the appellant 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, the appellant 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, the appellant went to Vice Mitchell’s Bar. While there, Irene Thirkield asked him to give her a ride to the Sand Hill bar. While in appellant’s car she solicited him. After she had removed her clothes, appellant 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. Appellant hid her body on the military reservation behind a pile of logs.
On March 30,1978, the appellant called the military police and told them exactly where to find Gail Faison’s body. The body was recovered that afternoon.
Appellant 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, the appellant 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, the appellant called the military police.
The military police, acting upon information that the appellant was the last person seen with Irene Thirkield, questioned the appellant and obtained a confession as to both murders. Subsequently, the appellant 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 the appellant 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 the appellant.
Enumerations of Error.
1. Appellant contends in his first enumeration of error that the State failed to prove venue sufficiently as a matter of law.
The State presented evidence that the body of the victim was found within Muscogee County in close proximity to the Fort Benning military reservation. Agent William Wanninger testified that he pointed out the location of the body to the City Engineer of Columbus, Georgia, James D. Webb. The city engineer testified that the location shown to him was situated within the county and was not part of the Federal military reservation. No conflicting evidence was introduced. Climer v. State, 204 Ga. 776 (51 SE2d 802) (1949). This evidence was sufficient to establish venue in Muscogee County. Wimbash v. State, 70 Ga. 718 (3) (1883); Ellard v. State, 233 Ga. 640 (212 SE2d 816) (1975); Aldridge v. State, 236 Ga. 773 (225 SE2d 421) (1976).
2. In his second enumeration of error, appellant asserts that the trial court erred in failing to suppress his confessions because they were not freely and voluntarily given. Appellant urges that the criteria enumerated in the case of Riley v. State, 237 Ga. 124 (226 SE2d 922) (1976), should be used in determining the voluntariness of the confession. Riley, however, involved the confession of a juvenile. The State is under a heavier burden in showing that a juvenile understood and waived his rights. See Massey v. State, 243 Ga. 228 (253 SE2d 196) (1979). Therefore, the criteria set forth in that case does not apply in the case of an adult’s confession.
The appellant was given a Jackson v. Denno hearing and the trial court determined that the confession was freely and voluntarily given. The trial court’s determination was not clearly erroneous. Under these circumstances the determination in favor of admissibility is accepted by the appellate court. Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974); Amadeo v. State, 243 Ga. 627 (255 SE2d 718) (1979); Burney v. State, 244 Ga. 33 (257 SE2d 543) (1979); McClesky v. State, 245 Ga. 108 (263 SE2d 146) (1980). In this case the evidence shows that agents from the military criminal investigation division stationed at Fort Benning, acting through appellant’s commanding officer, requested that appellant accompany them to CID headquarters for the purpose of being interviewed. Appellant readily agreed. The interview began at approximately 12:45 p.m. and lasted until 10:20 p.m. Appellant was advised of his rights under the Fifth and Sixth Amendments. He signed a waiver and was informed that the interview pertained to the murder of Irene Thirkield. Appellant made incriminating statements that afternoon in which he admitted writing the letters signed "Forces of Evil,” but was compelled to do so by that "organization.” The appellant was then interviewed by local authorities and the F.B.I. He was housed overnight in the Bachelor Enlisted Quarters under guard. The next morning at approximately 7:30 a.m. he was again advised of his rights and he signed a written waiver. The interview terminated at 3:00 p.m. after a written confession was obtained. The appellant was interviewed for a total time of 18 hours. During this period, however, he was fed lunch and dinner, allowed to use the restroom, smoke and eat snacks. The questioning was not continuous but was spread over a two-day period. At no time did the appellant request an attorney or ask that the interview be terminated. A local attorney who had represented the appellant in civil matters heard of his arrest and called the county jail, Columbus police headquarters and CID headquarters at Fort Benning. He testified he did not handle criminal matters, was not retained but simply wanted to advise the appellant of his rights. The attorney was not able to locate the appellant.
The agents questioning the appellant testified they did not know that an attorney was attempting to find the appellant, but when they learned this fact they immediately told the appellant, who had already confessed, and he refused to see him.
No threats nor promises were made to the appellant during the interrogation.
Under these circumstances, appellant’s statement was freely and voluntarily given and the trial court did not err in failing to exclude it.
3. In his fourth enumeration of error, appellant attacks the constitutionality of Code Ann. § 27-2534.1 (b) (7). He argues that any injury grave enough to cause death is an aggravated battery within the statute and therefore the statute is overbroad and vague in violation of the due process clause of the United States Constitution and the Constitution of the State of Georgia. However, the Supreme Court of the United States has upheld the constitutionality of the statute when attacked on these same grounds. Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976). This court has held that this Code section will not be permitted to become a "catchall” and upon sentence review will restrict affirmance to those cases which lie at the very core of the Code section. Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976). See Patrick v. State, 245 Ga. 417 (265 SE2d 553) (1980).
Recently the United States Supreme Court has considered this section as applied to a specific factual situation. Godfrey v. Georgia, 48 USLW 4541 (1980). In Godfrey v. Georgia, it was held that Code Ann. § 27-2534.1 (b) (7), although constitutional, was unconstitutionally applied under the specific facts of that case. In order for Code Ann. § 27-2534.1 (b) to be constitutionally applied in a given case, we hold that the evidence presented at trial must satisfy the following criteria as they apply to the specific factual situation of each case.
Code Ann. § 27-2534 (b) (7) provides in pertinent part: "The offense of murder... was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim.”
This statutory aggravating circumstance consists of two major components, the second of which has three sub-parts, as follows: (I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated batter to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant. In determining "[wjhether... the evidence supports the jury’s or Judge’s finding of [this] statutory aggravating circumstance ...” (Code Ann. § 27- 2537 (c) (2)), the evidence must be sufficient to satisfy the first major component of the statutory aggravating circumstance and at least one sub-part of the second component, as hereinafter set forth. See Fair v. State, 245 Ga. 868 (1980), post.
The phrases "outrageously or wantonly vile, horrible or inhuman” are words of common understanding, have essentially the same meaning, and are included in the statute to distinguish ordinary murders for which the penalty of death is not appropriate, from those murders for which the death penalty may be imposed. Godfrey v. Georgia, supra.
Under the plain meaning of the statute, not only must the murder be outrageously or wantonly vile, horrible or inhuman, but in addition, the facts of the case must show either an aggravated battery to the victim, torture of the victim, or depravity of mind of the defendant as hereinafter explained.
An aggravated battery occurs when "[a] person... maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” Code Ann. § 26-1305. In order to constitute aggravated battery, the bodily harm to the victim must occur before death. Godfrey v. Georgia, supra.
Torture occurs when the victim is subjected to serious physical abuse before death. Godfrey v. Georgia, slip opinion, p. 10. Serious sexual abuse may be found to constitute serious physical abuse. House v. State, 232 Ga. 140 (205 SE2d 217) (1974). Torture also occurs when the victim is subjected to an aggravated battery as hereinabove defined.
Evidence of psychological abuse by the defendant to the victim before death where it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse (i.e., torture of the victim), and also will support a finding of depravity of mind of the defendant.
Insofar as aggravated battery and torture are concerned, only facts occurring prior to death may be considered. The death of a victim who dies instantaneously with little or no forewarning does not involve torture or aggravated battery (Godfrey v. Georgia, 48 USLW 4541 (1980); Mulligan v. State, 245 Ga. 266 (264 SE2d 204) (1980)); i.e., only facts showing aggravated battery or torture (as hereinabove defined)), which are separate from the act causing instantaneous death, will support a finding of torture or aggravated battery. The instantaneous death of a victim as a result of being killed by a shotgun, although the scene of death be gruesome (no other facts appearing), does not constitute torture, aggravated battery or depravity of mind. (Godfrey v. Georgia, supra.)
Where only facts occurring prior to death are relied upon to support a finding of torture or aggravated battery, the fact that the victim was tortured or was the victim, of an aggravated battery will also support a finding of depravity of mind of the defendant; i.e., a defendant who tortures the victim or subjects the victim to an aggravated battery before killing the victim can be found to have a depraved mind.
In determining whether the evidence shows “depravity of mind,” the age, and the physical characteristics of the victim may be considered. See Thomas v. State, 245 Ga. 688 (1980).
A defendant who mutilates or seriously disfigures the victim’s body after death (cf. Code § 26-1305, supra), or who commits a sex act upon the victim’s body after death may be found to have a depraved mind and such acts would be sufficient to show depravity of mind of the defendant within the meaning of the statute.
Where it cannot be determined whether the victim was subjected to an aggravated battery or torture before death, or to mutilation or disfigurement after death, because the exact time of death or the precise act causing death cannot be ascertained, the penalty of death nevertheless may be sustained on the basis of aggravated battery or serious physical abuse before death or depravity of mind demonstrated after death.
As heretofore stated, the evidence must be sufficient to satisfy the first major component of statutory aggravating circumstance seven (7) ("outrageously or wantonly vile, horrible or inhuman”), and at least one (or more) of the three parts of the second component (aggravated battery to the victim, or torture to the victim, or depravity of mind of the defendant).
Review of the actual application of the section to the evidence in the case is a matter of sentence review and will be considered in that division of this opinion.
4. The trial court in the sentencing phase instructed the jury that they were authorized to consider the death penalty if they found the following statutory aggravating circumstance beyond a reasonable doubt: "The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim.” Code Ann. § 27-2534.1 (b) (7).
Appellant in his third enumeration of error argues that under Code Ann. § 27-2534.1 (b) (7), a jury is not authorized to impose a death penalty unless they find not only an "aggravated battery,” but also "depravity of mind.” This enumeration is without merit.
To have charged "depravity of mind” would have given the jury an additional ground in which the jury could have found the existence of the statutory aggravating circumstance and therefore would have been detrimental to the appellant. See Division 3. Appellant cannot complain of a charge which is beneficial to him.
5. Appellant’s fifth enumeration of error contends that his statements made during his interrogation should have been excluded because these statements were the product of an illegal arrest without probable cause. Appellant argues that an arrest is a seizure within the meaning of the Fourth Amendment and therefore an arrest absent probable cause violates the amendment, thereby triggering the exclusionary rule. Dunaway v. New York, — U. S. — (99 SC 2248, 60 LE2d 824) (1979). However, appellant never challenged the legality of his arrest and raises this argument for the first time on appeal. Fleming v. State, 243 Ga. 120 (252 SE2d 609) (1979); Mallory v. State, 230 Ga. 657 (198 SE2d 677) (1973); Jackson v. State, 229 Ga. 191 (190 SE2d 530) (1972). The legality of the arrest not being challenged below, the trial court did not err in admitting defendant’s confessions.
Notwithstanding appellant’s failure to object below, we find that upon careful examination of the record, probable cause for the appellant’s arrest existed.
Agents of the military police were in possession of the following information prior to appellant’s arrest. First, from the phone calls they knew the person who killed the victims was a young black male. Second, they knew that the perpetrator was a soldier because the calls they received showed an intimate knowledge of the military reservation and the letters were written on military stationery. Also, a military cap was found near one of the bodies. Finally, they knew that the appellant, a young, black male soldier, was the last person seen with a victim prior to her death. Such information would lead a reasonably cautious person to believe that appellant had committed the offense, thereby furnishing probable cause for his arrest. See Proper v. United States, 358 U. S. 307 (1958); Beck v. Ohio, 379 U. S. 89 (1964); Strauss v. Stynchcombe, 224 Ga. 859 (165 SE2d 302) (1968); Peters v. State, 114 Ga. App. 595 (152 SE2d 647) (1966).
6. In his sixth enumeration of error, appellant contends not only that the rule of Witherspoon v. Illinois, 391 U. S. 510 (1967), was violated with respect to four veniremen, but also that the trial court used a "double standard” when it failed to exclude a venireman for cause as being predisposed to the imposition of the death penalty. We do not agree. The transcript shows that the prospective jurors’ opposition to capital punishment met the Witherspoon test as reiterated in Lockett v. Ohio, 438 U. S. 586 (1978); Harris v. Hopper, 243 Ga. 244 (253 SE2d 707) (1979).
One potential juror, upon voir dire examination, favored the imposition of the death penalty. However, it is clear from the transcript that this potential juror would consider both punishments authorized by law in her deliberations. She was not "irrevocably committed” to the sentence of death no matter what the facts and circumstances of the case. It therefore follows that the court’s failure to excuse the juror upon motion was not based upon a "double standard.” Patrick v. State, supra.
7. The appellant was represented prior to trial by court-appointed counsel. Appellant moved that he be allowed to represent himself at trial, which motion was granted. However, court-appointed counsel assisted the appellant throughout the trial. Counsel examined potential jurors, cross examined witnesses and made timely objections. Prior to trial appointed counsel had filed pretrial motions. On appeal, appellant is represented by two appointed attorneys. Appellant, however, has filed in letter form a list of errors which he requests we address. While such a procedure is improper, we will nevertheless address the issues presented.
The evidence viewed in a light most favorable to the verdict would authorize a rational trier of fact to find each essential element of the crimes of murder and attempted theft by extortion beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
The failure to afford the appellant a preliminary hearing is not grounds for reversal. State v. Middlebrooks, 236 Ga. 52 (222 SE2d 343) (1976).
The appellant complains that he was not afforded a State-appointed expert to examine the murder weapon nor given a pretrial lineup. However, these issues were not raised below and no request was made by oral or written motion. See Fleming v. State, supra.
The State introduced over objection evidence of the murder of the second victim to show scheme, motive, intent or design. The method used was identical in both crimes, and both crimes were a part of a continuing criminal enterprise. The evidence was properly admitted. McClesky v. State, supra.
The State was not required to tender an autopsy report of the second victim as the medical examiner testified as to the cause of death.
During the cross examination of appellant’s character witness, the district attorney inquired about a crime occurring in Virginia in order to test the witness’s knowledge of the reputation of the defendant. Neither appellant nor his counsel objected and in fact appellant argued a reference to this crime to the jury in closing. This argument is without merit. Moulder v. State, 9 Ga. App. 438 (1911); Jackson v. State, supra; Fleming v. State, supra.
It is apparent from the brief filed that appellant’s counsel had a transcript and the appellant cannot complain he was not furnished an additional copy. See Mydell v. Clerk, Superior Court of Chatham County, 241 Ga. 24 (243 SE2d 72) (1978).
Finally, appellant has called attention to the fact that a deputy clerk and not a magistrate had signed his arrest warrants. This argument is without merit. Shadwick v. City of Tampa, 407 U. S. 345 (1972); Johnson v. State, 111 Ga. App. 298 (141 SE2d 574) (1965).
Sentence Review.
As required by Ga. L. 1973, p. 159 et seq., Code Ann. § 27-2537 (c) (1-3), we have reviewed the death sentence in this case. We have considered the aggravating circumstances found by the jury, the evidence concerning the crime and the defendant pursuant to the mandate of the statute. We conclude that the sentence of death imposed in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor.
The jury found the following aggravating circumstances: "The murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim.” Code Ann. § 27-2534.1 (b) (7).
Under the evidence of this case, the victim was struck on the head with a karate chop and fell over bleeding. She was pulled from the car with such force that her elbow was dislocated. All of these injuries occurred prior to death. The victim, again while still alive, was beaten with a tire jack with such force and savagery that when found her face from the top of the eyes down was completely missing, and parts of her jaw and skull were found within a nine foot radius of the body. The cause of death was multiple compound fractures of the skull and face, and evulsion (removal) of the victim’s brain. Although it is unknown at what exact time during the beating the victim died, the jury was authorized to find from the evidence, an aggravated battery prior to death in that the victim’s elbow and face were at a minimum rendered useless. Code Ann. § 26-1305. See Baker v. State, 245 Ga. 657 (1980).
Argued March 11, 1980
Decided June 24, 1980.
The murder was outrageously or wantonly vile, horrible or inhuman in that this murder is distinguishable from ordinary murders in which the death penalty is not appropriate. The victim was not killed instantaneously, she was not a member of the appellant’s family, nor was she subjecting him to any emotional trauma. She gave the appellant no reason whatsoever to assault her, and was in no manner threatening. The appellant showed no remorse for the killings and attempted in every manner to hide his crime. Under the evidence of this case, it cannot be argued that the nature of the injuries to the victim was not of the type universally condemned as outrageously or wantonly vile or inhuman. See Patrick v. State, supra.
Under the evidence of this case, the aggravated battery was of such a nature as to go to the very core of Code Ann. § 27-2534.1 (b) (7), and the section is constitutionally applied under the evidence in this case. Godfrey v. Georgia, supra, Division three.
We find that the evidence factually substantiates and supports the finding of this aggravating circumstance and the sentence of death by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We have thoroughly reviewed the instruction of the trial court during the sentencing phase of the trial and find that the charge was not subject to the defects dealt with in Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1978), and Hawes v. State, 240 Ga. 327 (240 SE2d 833) (1978). In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed. We find that the following similar cases listed in the appendix support affirmance of the death penalty. Appellant’s sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant.
Judgment affirmed.
All the Justices concur.
Rehearing denied July 15, 1980.
Richard O. Smith, William Alexander Byars, for appellant.
William J. Smith, District Attorney, Arthur K. Bolton, Attorney General, Mary Beth Westmoreland, Staff Assistant Attorney General, for appellee.
Appendix.
Jackson v. State, 229 Ga. 191 (190 SE2d 530) (1972); Owens v. State, 233 Ga. 869 (214 SE2d 173) (1975); Chenault v. State, 234 Ga. 216 (215 SE2d 223) (1975); Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976); Young v. State, 239 Ga. 53 (236 SE2d 1) (1977); Potts v. State, 241 Ga. 67 (243 SE2d 510) (1978); Patrick v. State, 245 Ga. 417 (265 SE2d 553) (1980).
Justice Harold Hill is the author of Division 3 of this opinion.
William Henry HANCE, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
No. 82-8342.
United States Court of Appeals, Eleventh Circuit.
Jan. 24, 1983.
Leonard M. Marks, Howard Lloyd Wieder, Gold, Farrell & Marks, John Charles Boger, New York City, for petitioner.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.
Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD, District Judge.
Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation.
[OPINION BY JOHNSON, Circuit Judge: type=majority]
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. § 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.
I. STANDARD OF REVIEW
The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C.A. § 2254(d). 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(dXl)-(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. § 2254(dX8), 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.).
II. FRUIT OF AN ILLEGAL ARREST
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).
III. ACCESS TO AN ATTORNEY
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). 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, 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. Evidence of Hance’s irrational behavior does not reach the level presented in some Fifth Circuit cases finding no Pate violation.
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.
Y. COMPETENCY TO CONDUCT HIS OWN DEFENSE
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.
VI. EFFECTIVE ASSISTANCE OF COUNSEL
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.
(^VII? jek)SECUTORIAL MISCONDUCT
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_thp context of the entire trial. Id. at 377.
Capital murder trials m 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. §§ 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. § 17 — 10-2(d) (1982). With this in mindjjge — • examine the guilt-innocence phase and the ^eTTtenci^^Hásé~seimrateÍv7~~ "-
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).
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., More troublesome is the manner in 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....” 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.” 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 gener- ally confess: “And my years in law enforce- ment 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.”
Certainly, the prosecutor’s conduct during the guilt phase of this trial was improper, but it was not unconstitutional. Consider^. • -ing"the overwhelming _ strength of the state’s case ~we cannot find that the prose-,. ^ cutor’s conduct rendered the determination-.-. “of Hance’s guilt fundamentally unfair. See Cobb v. Wainwright, supra, 609 F.2d at 755-56.
The-s&nt&ncing-phase-.of a capital 1 trial in Georgia-presente..a.diffg.renC action than t.he 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. § 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 anyotSer arbitrary f actórU^SSjja.Code Ann. § 27-2537(c)(l) (1976)^ With a manís 'HfWat" staké¡~arprosecutor shouldjiotjqlay _ ~ojt-thfe^assions of-t-hejury:
In this case, the prosecutor’s&emdash;fer- vent-appeal to the fearsjtnd emotions, of an already aroused jury was error of constituí tional dimension. The prosecutor started "ouTTEe'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 Attor- ney’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.” 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? Hoy# 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.
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. § 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). 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) (“[0]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’s 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, S.M. and M.T., 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.
S.M.’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?
S.M.: 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?
S.M.: 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?
S.M.: 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.
M.T. 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 S.M. and M.T. was a constitutional violation requiring reversal of Hance’s sentence.
The state argues that even if M.T.’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 K.H. for cause after she showed bias in favor of the death penalty, while excluding veniremembers M.T. and S.M. 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. 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, K.H. 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.
XI. THE JURY CHARGE ON VENUE
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, 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. § 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 peti tioner 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. § 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).
InUnited States v. Morris, 568 F.2d 396, 401 (5th Cir.1978), the former Fifth Circuit Court stated that “[ajn attorney may not express his own opinion as to the credibility of witnesses.” of witnesses.”
Tprosecutor also made several objection- able remarks about petitioner’s character, im- plying that he was an “animal” and alluding to the fact that he had fathered an illegitimate child. the prosecutor
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).
41722, 41807.
HANCE v. THE STATE.
(332 SE2d 287)
[OPINION BY Hill, Chief Justice. type=majority]
Hill, Chief Justice.
This is a death penalty case. On December 15, 1978, William Henry Hance was convicted by a jury of the murder of Brenda Gail Faison, also known as Gail Jackson or Gail Bogen. He was sentenced to death, the jury having found that “the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim.” See OCGA § 17-10-30 (b) (7). The conviction and sentence were affirmed on direct appeal. Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980), cert. denied, 449 U. S. 1067 (1980).
After exhausting his state habeas remedies, Hance filed a petition for habeas corpus in the U. S. District Court for the Middle District of Georgia which was denied. On appeal, the Eleventh Circuit set aside the death penalty on the grounds that the prosecutor’s closing argument rendered the sentencing fundamentally unfair, and that two jurors were improperly excluded in violation of Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) (1968). Hance v. Zant, 696 F2d 940 (11th Cir.), cert. denied, 463 U. S. 1210 (1983).
Following a resentencing trial, Hance was again sentenced to death. The jury found the same aggravating circumstance as had been found in the first trial'(see above). This is Hance’s appeal following resentencing.
1. In related enumerations of error, Hance contends that four jurors were erroneously excluded in violation of Witherspoon, supra, that Witherspoon qualification produces a death prone jury, and that the trial court erred in declining to strike for cause several jurors who expressed a bias for the death penalty. We will address these contentions seriatim.
The four jurors whom Hance contends were erroneously excluded are Calhoun, Middlebrooks, Lacy and Gates. We have reviewed the transcript of the voir dire, and conclude that each of these jurors was properly excluded under the standard recently set forth in Wainwright v. Witt, 469 U. S. __ (105 SC 844, 852, 83 LE2d 841) (1985), which is “... whether the juror’s views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” See Alder man v. State, 254 Ga. 206 (4) (327 SE2d 168) (1985).
Hance also challenges the jury selection process, arguing that the Witherspoon qualification produced a jury prone to give the death penalty both through the exclusion of jurors with scruples about the death penalty and through the emphasis on the death penalty throughout the voir dire necessitated by Witherspoon We conclude that it did not, and we note that a like contention was exhaustively treated and decided contrary to Hance’s position in Mincey v. State, 251 Ga. 255 (2) (304 SE2d 882), cert. denied, 104 SC 414, 78 LE2d 352 (1983).
Finally, Hance contends that the trial court erred in declining to strike for cause six jurors who expressed a bias against him and in favor of the death penalty: Parker, Deal, Park, Smith, Greene and Cook. Hance, however, only objected at trial to three of the six, Parker, Greene and Cook, and the trial court did not err in failing to excuse the other three absent any objection. Spivey v. State, 253 Ga. 187 (6) (d) (319 SE2d 420) (1984), cert. denied, 105 SC 816, 83 LE2d 809 (1985). As for the three objected to, we have reviewed the voir dire and have determined that the trial court did not err in not excusing for cause any of the three jurors to whom Hance objected. Hance v. State, supra, 245 Ga. at 864-865; Devier v. State, 253 Ga. 604 (3) (d) (323 SE2d 150) (1984), cert. denied, 105 SC 1877, 85 LE2d 169 (1985); Spivey v. State, supra, 253 Ga. at 194-96; Waters v. State, 248 Ga. 355 (2) (283 SE2d 238) (1981), cert. denied, 103 SC 3551 (1983).
2. Hance also appeals the denial of his motion for a continuance, which was filed on the day trial commenced, Monday, May 7, 1984. The motion set forth that at the time of defendant’s earlier trial — December 1978 — the city where he was originally tried and scheduled to be retried — Columbus, Georgia — “was in the midst of a ‘manhunt’ for a person known only as the ‘Stocking Strangler’ who had been responsible for seven murders as well as at least one unsuccessful attack with apparent intent to commit murder.” The motion further alleged that: “This Defendant was directly tied into the ‘Stocking Strangler’ situation in that it was alleged that this Defendant had written several letters to the Police Department under the name of ‘The Forces of Evil,’ wherein the writer of the letters threatened to kill certain people if the police did not find the Columbus Stocking Strangler.” The motion further set out that just that past week the police had arrested a suspect in the stocking stranglings, one Carlton Gary, and that on Friday, May 4, 1984, the Muscogee County Grand Jury had indicted Gary on three counts of murder, and the DA had announced that he would seek the death penalty. Finally, the defendant alleged that the current intense publicity about the stocking strangler case made it impossible for him to receive a fair trial at that time. No evidence was introduced in support of the motion. After hearing argument of counsel, the court overruled the motion, noting that the effect of the publicity might be an appropriate area of inquiry on voir dire.
This area was inquired into during voir dire. We have reviewed the voir dire, and find that it does not support the defendant’s assertion that the stocking strangler publicity resulted in prejudice to him. The trial court did not abuse its discretion in overruling the motion for continuance. See Davis v. State, 240 Ga. 763 (1) (243 SE2d 12) (1978); Orkin v. State, 236 Ga. 176 (5) (223 SE2d 61) (1976).
3. Hance complains of the admission of evidence of a murder for which he was not indicted, that of Irene Thirkield. He recognizes that this evidence was previously held admissible. Hance v. State, supra, 245 Ga. at 865. But he argues that in the earlier trial, it was ruled admissible in the guilt/innocence phase, while here there is no issue as to guilt, and Hance contends that since guilt was not at issue, the evidence was admitted solely to convince the jurors to recommend the death penalty. That ignores the fact that in a resentencing trial such as this, while the state has no legal burden to establish guilt, as a practical matter the state must present sufficient evidence to allow this jury to independently satisfy itself of the defendant’s guilt, as well as determine what punishment should be imposed. For this reason, except possibly in unusual circumstances not present here, evidence which was admissible in the guilt/innocence phase is admissible in the resentencing trial. Thus it is. not necessary to reexamine the admissibility of this evidence. Because it was held to have been properly admitted in the guilt/innocence phase, it follows that the evidence was also admissible upon resentencing. See Alderman v. State, supra, 254 Ga. 206 (8); Zant v. Stephens, 250 Ga. 97, 100 (297 SE2d 1) (1982); Blankenship v. State, 251 Ga. 621, 624 (308 SE2d 369) (1983); Devier v. State, 253 Ga. 604 (9) (323 SE2d 150) (1984), cert. denied, 105 SC 1877 (1985).
4. The defendant contends that the trial court erred in admitting into evidence photographs of the victim’s body and pieces of the victim’s bones, bone chips, and teeth found in the vicinity of her body, and pictures of Irene Thirkield’s body. All of the photographs complained of on appeal were taken at the scene where the bodies were discovered, and all depict the injuries inflicted upon the victims. While they are undeniably unpleasant, they are also undeniably relevant. Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983). We note that they were not overly repetitious; in fact the trial court had declined to admit one closeup of Irene Thirkield’s body at the first trial because he found it cumulative, and the state therefore declined to attempt to introduce it at the resentencing.
The other physical evidence introduced over objection related to the murder of Brenda Gail Faison. This consisted of bones, bone fragments, and teeth. Testimony indicated where they were found. Thus, the exhibits were relevant to the issue being tried; that is, the testimony and exhibits taken together illustrate the force with which the victim was beaten, and the extent of that force is relevant to the sentencing decision, especially where the statutory aggravating circumstance is OCGA § 17-10-30 (b), which requires a finding that the murder be “outrageously or wantonly vile, horrible or inhuman.” See Hance v. State, supra, 245 Ga. at 861; Green v. State, 246 Ga. 598 (9), 609 (Hill, J., concurring in part and dissenting in part) (272 SE2d 475) (1980), cert. denied, 450 U. S. 936 (1981).
5. The defendant contends that the prosecutor’s closing argument at the sentencing phase deprived him of due process. He cites in support of this contention the fact that the district attorney told the jury that if they returned a verdict recommending death they would not be responsible for Hance’s execution any more than would be the police officers involved, the grand jurors, the prison officials, the DA himself or the trial judge. Rather, he argued, Hance himself bore the ultimate responsibility because it was he who committed the crime which authorized imposition of the death sentence. We do not find this accurate statement of the criminal justice process to be objectionable, and we hold that it did not introduce “passion, prejudice or any other arbitrary factor,” OCGA § 17-10-35 (c) (1), nor did it tend to diminish the jury’s sense of responsibility or deny the defendant fundamental fairness. See Conner v. State, 251 Ga. 113 (5) (303 SE2d 266), cert. denied 104 SC 203 (1983); Corn v. Zant, 708 F2d 549, 557-558 (11th Cir. 1983), cert. denied, 104 SC 2670 (1984); Caldwell v. Mississippi, 53 USLW 4743 (June 11, 1985).
6. The defendant contends that the evidence does not support the aggravating circumstance found because it does not establish that an aggravated battery occurred before death. He argues that this case is controlled by Patrick v. State, 247 Ga. 168, 170 (274 SE2d 570) (1981), in which we held: “The jury in this case was charged only as to aggravated battery (i.e., not as to torture or depravity of mind) and found only aggravated battery. On appeal, we are required to determine whether the evidence supports the aggravating circumstance found by the jury beyond a reasonable doubt. Code Ann. § 27-2537 (c) (2). In this case, we cannot make such finding because the evidence does not show beyond a reasonable doubt that the victim suffered an aggravated battery before death.”
The evidence in the case before us is quite different. The evidence presented in this resentencing was substantially the same as that presented at the first trial. In Hance’s first appeal, we held: “Under the evidence of this case, the victim was struck on the head with a karate chop and fell over bleeding. She was pulled from the car with such force that her elbow was dislocated. All of these injuries occurred prior to death. The victim, again while still alive, was beaten with a tire jack with such force and savagery that when found her face from the top of the eyes down was completely missing, and parts of her jaw and skull were found within a nine foot radius of the body. The cause of death was multiple compound fractures of the skull and face, and evulsion (removal) of the victim’s brain. Although it is unknown at what exact time during the beating the victim died, the jury was authorized to find from the evidence, an aggravated battery prior to death in that the victim’s elbow and face were at a minimum rendered useless. Code Ann. § 26-1305. See Baker v. State, 245 Ga. 657 (1980).” Hance v. State, supra, 245 Ga. at 866-67. We apply that decision to the evidence presented upon resentencing and find that it satisfies the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Likewise, notwithstanding evidence in mitigation introduced at this resentencing trial, we adhere to our previous decision that “Appellant’s sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant.” Id. at 867. The similar cases listed in the appendix support the affirmance of the death penalty.
7. We have reviewed this resentencing trial pursuant to OCGA § 17-10-35 (c) (1) and Rule IV (B) (2) of the Unified Appeal Procedure. 246 Ga. A 1, A 16 (1980). We conclude that the sentence of death is supported by the evidence according to law, and was not imposed under the influence of passion, prejudice or any other arbitrary factor.
8. The foregoing divisions of this opinion respond to enumerations raised on defendant’s behalf by his attorney. The defendant himself has written this court arguing that the trial court erred in failing to suppress his confession, and that the evidence does not connect him to the crime. Those issues were decided adversely to defendant in Hance v. State, supra, 245 Ga. 856 (2) (5), and were not open for relitigation. Moreover, the transcript now before us shows that Hance admitted to the resentencing jury that he killed Brenda Gail Faison as well as Irene Thirkield.
Decided July 2, 1985 —
Rehearing denied July 23, 1985.
H. Haywood Turner III, for appellant.
William Henry Hance,. pro se.
William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.
Judgment affirmed.
All the Justices concur.
Appendix.
Allen v. State, 253 Ga. 390 (321 SE2d 710) (1984); Finney v. State, 253 Ga. 346 (320 SE2d 147) (1984); Conner v. State, 251 Ga. 113 (303 SE2d 266) (1983); Williams v. State, 250 Ga. 553 (300 SE2d 301) (1983); Mathis v. State, 249 Ga. 454 (291 SE2d 489) (1982); Smith v. State, 249 Ga. 228 (290 SE2d 43) (1982); Cunningham v. State, 248 Ga. 558 (284 SE2d 390) (1981); Cervi v. State, 248 Ga. 325 (282 SE2d 629) (1981); Cape v. State, 246 Ga. 520 (272 SE2d 487) (1980); Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1978); Young v. State, 239 Ga. 53 (236 SE2d 1) (1977).
The two case numbers are the result of the first notice of appeal having been filed before the motion for new trial was overruled. There is only one appeal.
This contention was waived by Hance’s failure to raise it below. State v. Williamson, 247 Ga. 685, 686 (279 SE2d 203) (1981). But see Castell v. State, 250 Ga. 776, 788 (301 SE2d 234) (1983). Nonetheless, we must consider whether the Witherspoon qualification resulted in the death sentence being “imposed under the influence of passion, prejudice, or any other arbitrary factor.” OCGA § 17-10-35 (c) (1); Castell v. State, supra.
The certain people the letter writer threatened to kill were Gail Jackson and “Irene,” see Division 3, infra. One of the letters described the condition Gail Jackson’s body would be in when found.
Hance had previously filed two motions for continuance on different grounds, both of which had been granted.
Irene Thirkield’s body was found on Fort Benning. Hance’s attorney explained, in arguing his motion in limine to exclude any reference to Thirkield’s murder, that Hance was court-martialed and found guilty of her murder. The conviction was, however, reversed on appeal, and he was not retried.
45750.
HANCE v. KEMP.
(373 SE2d 184)
[OPINION BY Smith, Justice. type=majority]
Smith, Justice.
We granted Hance’s application for a certificate of probable cause to appeal the superior court’s denial of his petition for a writ of habeas corpus. For reasons which follow, we affirm.
Hance exercised his right under Faretta v. California, 422 U. S. 806, 834-35 (95 SC 2525, 45 LE2d 562) (1975) to represent himself during his original trial in 1978. Legal counsel was appointed to assist him on a standby basis. His conviction and death sentence were affirmed on direct appeal. Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980).
The U. S. District Court for the Middle District of Georgia denied Hance’s petition for habeas corpus. On appeal, the Eleventh Circuit Court of Appeals refused to examine Hance’s claim that his “stand-by” counsel was ineffective stating: “Hance, by asserting his right to self-representation, had waived his right to counsel.” Hance v. Zant, 696 F2d 940, 950 (11th Cir. 1983). However, the Eleventh Circuit set aside Hance’s death penalty on the grounds that the prosecutor’s closing argument rendered the sentencing fundamentally unfair, and that two jurors were improperly excluded in violation of Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) (1968).
The case returned to the superior court for a resentencing trial. This time, instead of seeking to represent himself alone, Hance persuaded the trial court to allow him to act as co-counsel. Hance again was sentenced to death. Hance v. State, 254 Ga. 575 (332 SE2d 287) (1985).
Hance sought habeas corpus relief in the Butts County Superior Court. The court denied relief on all grounds including his challenge to the effectiveness of his resentencing trial counsel. This Court granted his application for a certificate of probable cause to consider whether his claim of ineffective assistance of counsel is controlled by Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982).
The Right To Self-Representation And The Right To Counsel
1. “[T]he Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel. [Cit.]” Cargill v. State, 255 Ga. 616, 622 (340 SE2d 891) (1986). As a result of changes in the Georgia Constitution, a criminal defendant in Georgia “ ‘no longer has the right to represent himself and also be represented by an attorney, i.e., the right to act as co-counsel.’ [Cit.]” Cargill, supra, 255 Ga. at 623.
Nonetheless, although a defendant may not insist on acting as co-counsel, the trial court may, as here, allow him to do so. In such a case, as when the defendant elects to proceed pro se, the record should reflect that his choice to proceed as co-counsel was “made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Clarke v. Zant, 247 Ga. 194, 197 (257 SE2d 49) (1981). See also Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984). Here, although Hance was given to understand that if he elected to proceed as co-counsel he could not thereafter complain about the quality of his own performance as counsel, it was stated to him by his attorney with the apparent agreement of the trial judge that his election to act as co-counsel would not waive his right to raise later an ineffective-assistance-of-counsel claim as to his attorney’s performance. Moreover, it appears that Hance’s claim of ineffectiveness relates primarily to the performance of his attorney before Hance sought to act as co-counsel. Compare United States v. Fessel, 531 F2d 1275 (5th Cir. 1976) (“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.” Hance v. Zant, supra, 696 F2d at 950. On this ground, Fessel’s conviction was reversed.) Thus, we conclude that Hance is entitled to a review of the effectiveness of his trial attorney.
The Evidence At Trial
The facts surrounding Hance’s arrest and conviction and the facts of the crimes are set forth in Hance v. State, supra, 245 Ga. 856. The evidence presented by the state during the resentencing trial was substantially the same as that presented during the first trial. Hance v. State, supra, 254 Ga. 575.
Hance’s confessions were read to the jury. They included the following: Late in February 1978 he was propositioned by Gail Jackson in a bar. They left together in his car and Ms. Jackson began to remove her clothing. Hance became angry, stopped his vehicle, and hit Ms. Jackson across the head with a “karate chop.” As he pulled her by her arms out of the automobile and into the woods, he heard something pop. Leaving her in the woods, he returned to his car to obtain a jack handle. She was still breathing when he returned. He hit her in the head with the jack handle until she was dead. He began to dig a grave with an entrenching tool; however, fear that he would be noticed prompted him merely to cover the victim with leaves and dirt. He threw the murder weapon across the street and left the scene of the crime. He devised a plan to divert suspicion by placing the blame on the “Forces of Evil.” The confessions also indicated that he had killed Irene Thirkield in March 1978 in the same manner after she had propositioned him.
Between March 3, 1978 and April 5, 1978, Hance, who is black, wrote a series of letters on Army stationery to the Columbus, Georgia Chief of Police and one letter to the local newspaper. He claimed to be the “Chairman of the Forces of Evil” and that he and his other white companions in “The Forces of Evil” had kidnapped two black women, Gail Jackson and Irene Thirkield. He threatened to kill the women if the “stocking strangler,” was not apprehended or in the alternative if the “Forces of Evil” did not receive $10,000. The letters announced that one black woman would be abducted every three months and executed until his demands were met. One letter stated that the Military Police would receive a telephone call revealing the location of the body of Gail Jackson. The letter indicated that the body was in bad shape, that one arm was broken, and the cause of death was a sharp blow to the head.
Hance called the Military Police, identified himself as the “Chairman of the Forces of Evil,” and divulged the location of Ms. Jackson’s body.
Medical testimony indicated that the entire face and the front portion of Ms. Jackson’s skull had been smashed, and her left elbow was completely dislocated. The trauma to the face and head could have been caused by a jack handle.
Medical testimony also indicated similarities between the circumstances of the deaths of Ms. Jackson and Ms. Thirkield. Both bodies were found in various stages of undress in semi-secluded, wooded areas in the same geographic area. Both women suffered massive head injuries. Ms. Thirkield’s head was reduced to a few large bones. The injuries Ms. Thirkield suffered could also have been caused by a jack handle.
Hance told officials where they could find the jack handle he used to kill Ms. Jackson. The entrenching tool that he used to begin digging Ms. Jackson’s grave was recovered from his living quarters.
A handwriting examiner testified that the handwriting on a letter received by the police was the same as that of Hance’s signature on his military records. Fingerprints taken from a letter matched his right middle finger.
The defense opened its case with the testimony of a clinical psychologist, Lewis E. Liberman, Ph.D. Dr. Liberman testified that Hance suffers from a personality disorder. Since Hance did not “fit exactly” into any of the six or seven different types of personality disorders, Dr. Liberman diagnosed him as atypical. Because of his personality disorder, Hance is egocentric and is incapable of having empathy for others. He has a difficult time admitting he has done something wrong, is impulsive, suffers from poor judgment, and tries to justify his mistakes by explaining them away or trying to blame them on others. Dr. Liberman testified that if Hance could recognize and admit he had done something wrong, it would be a sign of progress.
Hance’s First Sergeant in the Army testified that Hance was dependable, trustworthy, and a good soldier. He testified that Hance did not lose his temper easily and was not a violent person, but was under stress because of personal, family, and financial problems. Hance had been drawing extra duty to make more money, but had been barred from reenlistment because of his financial problems.
The warden and assistant warden from the Muscogee County Sheriff’s Department and the counselor at the State Prison in Jackson, Georgia all testified that Hance had not caused any problems during his incarceration.
C.W. testified that he had known Hance and his family since Hance was in high school, and had employed them in his business. He testified that Hance worked for him for five years. He was trusted, dependable, and no problem in the community; he came from a hardworking, church-going family, and everyone liked him. C.W. also testified that Hance’s invalid mother was attacked, raped, and subsequently died. C.W. felt that Hance had been rehabilitated, that he was a bright, talented man, and that his life should be spared.
Hance testified that he grew up in a below-poverty-level family. He had always wanted to be in the Marines and after graduation from high school he enlisted in the Marines. He was advancing in the Marines and intended to make it his career. His ex-wife was unhappy with his career choice. In order to save their troubled marriage he left the Marines, after serving four and one-half years, and received an honorable discharge. Within a year he enlisted in the Army. After he found his wife and another man in the bedroom of his home, he divorced her. The financial demands of his wife and child caused him to have serious financial difficulties. He was drawing extra duty in the Army and also taking odd jobs in town to supplement his income, but his financial troubles resulted in his being barred from reenlisting.
He testified that he was sickened when he heard of the attack, rape, and subsequent death of his invalid mother in 1972. The assailant was never apprehended.
Hance stated that he did not know why he killed Ms. Jackson in 1978. He told the jury he “lost all sense of control” and that his “mind flipped.” He accepted responsibility for the murder, stated that he had begged God’s forgiveness and asked the jury to forgive him. During cross-examination, Hance admitted killing both Ms. Jackson and Ms. Thirkield, and admitted he did not tell the truth in the first trial when he denied killing Ms. Jackson. He stated that in the six years following his first conviction he had grown spiritually and physically and had made peace with God.
The Evidence At The Habeas Proceeding
The evidence Hance presented to the habeas court consisted mainly of an affidavit from Dr. Ralph Allsopp (a clinical psychologist who examined Hance on September 28, 1987) and affidavits from several of Hance’s friends and relatives.
Dr. Allsopp’s affidavit stated that he administered a full battery of tests to Hance and relied upon affidavits from family and friends and part of the transcript of Hance’s court-martial. He stated it was his “clinical impression that Mr. Hance suffers from a Personality Disorder with Paranoid, Dependent and Narcissistic features.” In addition, it was his “clinical impression that Mr. Hance suffers from Atypical Depression.”
Dr. Allsopp’s affidavit also included the following information:
The conflicts Mr. Hance experiences in his relationship with women must be viewed in light of his relationship with women. His mother was seen as being good and kind to Mr. Hance and his sister but at the same time, she was unable to prevent her husband from abusing the children both mentally and physically. At an early age, Mr. Hance experienced incest, and found his father in bed with a prostitute. These conflicts carried over into his own marriage, which ultimately ended because of adultery on the part of his wife.
Mr. Hance’s marked paranoia and feelings of insecurity can perhaps be explained in part by the mental and physical abuse inflicted upon him and his sister by his father. As has already been noted, the more aggressive and assertive features of Mr. Hance’s personality and at least a portion of his negative feelings toward women can be explained by his view of the paternal figure.
Dr. Allsopp indicated that men like Hance “excessively utilize a transfer of blame mechanism.” He further stated that Hance has
negative feelings toward women,... perceived man-woman relationships as being permeated by feelings of sadness, pain, hostility and homicidal ideation,... [and] perceives males as generally being very powerful, [and] as being assertive or aggressive in their stance toward women.
The affidavits of the family and friends generally include information that was given to the jury by Hance and by C.W. The only affidavit providing considerably more information is that of B.B., Hance’s sister.
B.B.’s affidavit states that she and Hance had a very close relationship and that he was a good student. Their mother had to work two jobs to provide food and clothing because their step-father worked irregularly and drank. Both she and Hance helped to earn money when they could. When she was nine and Hance was six, their step-father raped her as Hance watched. The step-father beat and intimidated them both, but she “was beaten more frequently” than he. ■ When Hance was twelve he found his step-father in bed with a prostitute. Hance’s ex-wife ran around on him, and on two different occasions she stabbed him with knives. Hance was a devoted and loving father to his child.
Hance’s retrial attorney testified that Hance at first insisted their defense should be “I didn’t do it.” The attorney explained that, with difficulty, he persuaded Hance to agree to another approach:
The first focus was to see if we could go back in on the sentencing stage and say, “I didn’t do it,” that’s what Mr. Hance wanted to do, and so, I went over the trial transcript from the original trial and his court martial, over and over, and he wanted to go in and try to deny it, and I finally, finally, after having to start preparing in that direction, we were able to convince him to go in the direction of, Let’s go ahead and tell them the truth. You’ve told me the truth and I think you feel this pain, and I think they’ll be able to see it, and the remorse, and the repentance, and we want to have some people say some good things about you and we want to be able to use Dr. Liberman, and I was able to get him to go along with that, but he didn’t go along with it the first time around.
The attorney explained why he chose Dr. Liberman:
Dr. Liberman was the only psychiatrist or psychologist out of six or eight folks that had seen him, that was willing to say that he had a — Dr. Liberman was the only guy that would say he had a mental disorder and because of this mental disorder, he had a diminished capacity, and he wasn’t rational, and he wasn’t in his right mind, he was the only somebody that appeared to us that was willing to try to help us make out this diminished capacity defense. We were going to try to show diminished capacity equals diminished responsibility, equals diminished culpability, hopefully then diminished punishment, and Liberman was the only somebody that I had.
The attorney testified that, despite his inquiries, Hance refused to talk about his family background in detail. Moreover, Hance specifically instructed his attorney to “leave [his family] out of it”; he did not want them involved in the case or called as witnesses. The attorney testified that he “tried to move him away from that position,” but Hance was “adamant.” He explained:
[I]f I had [gone] against his wishes, I would have so alienated Mr. Hance, in my opinion, that I could never have gotten him to cooperate in what I thought as the only viable defense that he had, and that was to get on the stand and tell the truth. I would have just lost Hance if I had alienated him....
[I]f I had gone in the direction that he was just adamant and opposed to, the family members coming in and saying whatever nice things they could say about him as he was growing up, I do not believe I could have had Hance get on that stand and tell that jury that truth, I just don’t believe I could have accomplished it, and I thought that was our only chance to save him....
I think I’m aware of my duties as counsel, but I’ve got to make a judgment ... do I go find [these family members] against his wishes, alienate him, lose him in order to have them, and I made a decision. I would rather have him; I didn’t think I could have it both ways. I was convinced then I couldn’t, and I don’t know of anything other to tell you.
Ineffective Assistance Of Counsel
2. Hance contends his counsel at the resentencing trial was ineffective in failing properly to investigate, prepare and present evidence of his mental condition and family background.
(a) The standard for evaluating a claim of ineffectiveness is set forth in Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984):
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating counsel’s performance, the “inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id. 466 U. S. at 688. (Emphasis supplied.) “[A]ll the circumstances” include the. defendant’s own actions, because:
[A] defendant’s Sixth Amendment rights are his alone, and... trial counsel, while held to a standard of “reasonable effectiveness,” is still only an assistant to the defendant and not the master of the defense. See Faretta v. California, 422 U. S. 806, 820, 95 SC 2525, 2533, 45 LE2d 562 (1975). Our criminal system allows a defendant the choice of whether he wants to be represented by counsel at trial. See generally Faretta. Because we recognize that a defendant must have this broad power to dictate the manner in which he is tried, it follows that, in evaluating strategic choices of trial counsel, we must give great deference to choices which are made under the explicit direction of the client.
Mulligan v. Kemp, 771 F2d 1436, 1441 (11th Cir. 1985). It follows that Hance’s “actions affect both our analysis of whether [his attorney] was deficient, and whether any deficiencies meet the prejudice standard of Strickland.” Thompson v. Wainwright, 787 F2d 1447, 1450 (11th Cir. 1986).
(b) Hance’s attorney did not fail to contact members of Hance’s family in Virginia out of mere deference to Hance’s wishes. As counsel explained, it was not just a matter of maintaining rapport. Counsel had a client who was “singularly uncooperative” and headstrong, who was “adamant” that his family not be involved; counsel had with great difficulty deflected his client from what counsel perceived to be an unproductive, continued denial of guilt in the face of a conviction on overwhelming evidence. Counsel persuaded Hance to accept the more plausible tack of (1) admitting guilt while expressing remorse, and (2) buttressing his testimony with mitigating testimony from a psychologist and from people who knew him.
We find that counsel’s decision not to involve members of Hance’s family in Virginia was a reasonable one under the circumstances.
(c) There is no merit to Hance’s contention that his trial attorney failed to recognize that Hance’s mental condition might be a mitigating factor. Nor do we agree that the trial attorney erred by first requesting an evaluation “at state facilities by state doctors.” A defendant must first make a “threshold showing to the trial court” of his need for an independent evaluation, Ake v. Oklahoma, 470 U. S. 68, 82-83 (105 SC 1087, 84 LE2d 53) (1985), and a court-ordered evaluation may well establish such a need. See Lindsey v. State, 254 Ga. 444, 449 (330 SE2d 563) (1985) (Addendum). Dr. Liberman’s testimony may not have been as completely favorable as Hance might have wished for, but the investigation in this respect by Hance’s trial attorney was not inadequate, nor was his decision to use Dr. Liberman unreasonable.
(d) Since we do not find deficient attorney performance, it is not necessary that we address the prejudice prong of the Strickland test. Nevertheless, we note that the testimony Hance now claims should have been offered is not entirely favorable to him. Dr. Allsopp’s evaluation may have offered a plausible contributing factor (“mental and physical abuse inflicted upon him and his sister by his stepfather”) for Hance’s personality disorder, but his descriptions of Hance’s “marked paranoia,” “homicidal ideation,” aggressiveness and “hostility” would have given the prosecutor further grounds to argue Hance’s dangerousness to the jury. Likewise, the testimony of Hance’s sister might have indicated that Hance suffered as a child, but since she was the one who was raped, and who was beaten more frequently, it would have indicated that she suffered more. The prosecutor could have responded by arguing that, unlike Hance, she grew up to be a “normal citizen[ ] even though [she] had been subjected to [worse] abuse... Elledge v. Dugger, 823 F2d 1439, 1447 (11th Cir. 1987). All things considered, we find that Hance
has not demonstrated a reasonable probability that, if adduced at trial, the psychiatric and background evidence presented in his habeas proceeding would have caused the sentencer to conclude “that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, [supra] 466 U. S. at 695....
Elledge v. Dugger, supra, 823 F2d at 1448.
Remaining Errors Enumerated
3. Hance’s present attorney, without the knowledge or permission of his resentencing trial counsel, tape-recorded a telephone conversation between them more than a week before the habeas hearing. Hance contends his trial counsel’s testimony at the habeas hearing must be disregarded in its entirety pursuant to OCGA § 24-9-85 (b) because it contradicted the statements he made on the telephone. Trial counsel did not wilfully and knowingly swear falsely and his tes.timony was not such as to make manifest a purpose to falsify. Cargill v. State, supra, 255 Ga. 616, 641. The provision is not applicable, and we find no error in Hance’s second enumeration of error.
4. Hance contends in his third enumeration of error that the habeas court erred in finding a state procedural default as to certain issues that were timely raised in the trial court but not specifically enumerated as error on direct appeal. He argues that issues timely raised in the trial court are automatically raised by the Unified Appeal Procedure.
This court reviewed the
resentencing trial pursuant to.. .Rule IV (B) (2) of the Unified Appeal Procedure.. .[and concluded] that the sentence of death is supported by the evidence according to law, and was not imposed under the influence of passion, prejudice or any other arbitrary factor.
Hance v. State, supra, 254 Ga. 575, 579.
Our review of the resentencing record in Hance v. State, id., indicated that no issue timely raised in the trial court but not specifically enumerated as error on appeal rose to the level of plain error. See United States v. Fuentes-Coba, 738 F2d 1191, 1196 (11th Cir. 1984). The habeas court did not err in finding a state procedural bar to enumerations of error numbers 6, 7, 11, 15, 17, and 23.
5. “When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict which caused his counsel’s performance to be adversely affected. [Cit.] ” Wharton v. Thomas, 256 Ga. 76, 77 (343 SE2d 694) (1986). Hance has shown no actual conflict, and we find no error in the appellant’s fourth enumeration of error.
6. Enumerations of error 5, 10, 12, 13, 14, 16, 20, 21, and 22 were previously decided adversely to the appellant by this court.
7. Hance asserts in his eighteenth enumeration of error that the charge on intent given during his original trial was burden shifting under Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985).
Hance previously contended this charge was burden shifting under Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979). However, neither the state habeas court nor the Eleventh Circuit Court of Appeals found any merit to this contention. Hance v. Zant, 696 F2d, supra at 953. More recently, the Eleventh Circuit held that a charge with identical language, i.e., 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 consequences of the act.. .” Hill v. Kemp, 833 F2d 927, 930 (11th Cir. 1987), does not violate either Sandstrom v. Montana, supra, 442 U. S. 510 or Francis v. Franklin, supra, 471 U. S. 307. We find no error.
Decided October 20, 1988
Reconsiderations denied November 9, 1988.
Lenzer & Lenzer, Robert Lenzer, Thomas P. Lenzer, for appellant.
Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.
8. The Eighth Amendment to the United States Constitution prohibits states from inflicting the death penalty upon a prisoner who is insane. Ford v. Wainwright, 477 U. S. 399 (106 SC 2595, 91 LE2d 335) (1986). Consideration of the appellant’s present sanity is premature because his execution is not imminent. We find no error in the appellant’s nineteenth enumeration of error.
9. Hance has submitted numerous pro se briefs to this court. An examination of the pro se briefs and errors enumerated therein do not reveal any errors that should be considered in the interest of justice.
Judgment affirmed.
All the Justices concur.
In Faretta, the United States Supreme Court held that a criminal defendant has a constitutional right to waive his right to counsel and represent himself.
In Mullins, we held:
[W]hen a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.
An unknown assailant known as the “stocking strangler” had been killing elderly white women in Columbus, Georgia.
The appellant was court-martialed and found guilty of the murder of Irene Thirkield. “The conviction was, however, reversed on appeal, and he was not retried.” Hance v. State, 254 Ga. 575, 577 n. 5. Dr. Liberman testified on behalf of Hance during the court-martial.
As noted previously, Dr. Liberman had also diagnosed Hance as having a personality disorder, but because Hance did not “fit exactly” into any of the different types of personality disorders, he diagnosed his personality disorder as atypical.
OCGA § 24-9-85 (b) provides: “If the witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.”
Rule IV (B) (2) of the Unified Appeal Procedure provides in pertinent part: “The Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court.” 252 Ga. A-28 (1984).
William Henry HANCE, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic & Classification Center, Respondent-Appellee.
No. 91-8448.
United States Court of Appeals, Eleventh Circuit.
Jan. 6, 1993.
Rehearing and Rehearing En Banc Denied March 11, 1993.
Thomas P. Lenzer, Lenzer & Lenzer, Norcross, GA, for petitioner-appellant.
Mary Beth Westmoreland, Senior Asst. Atty. Gen., Atlanta, GA, for respondent-appellee.
Before ANDERSON, COX and BIRCH, Circuit Judges.
[OPINION BY ANDERSON, Circuit Judge: type=majority]
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.
BACKGROUND
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. 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. C.W. testified that he had known Hance for twenty years and that Hance was friendly, courteous, industrious, and not a problem to the community. C.W. 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.
II. DISCUSSION
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. 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). 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. C.W. testified that he had known Hance for twenty years, and that Hance was friendly, courteous, industrious, and not a problem to the community. C.W. stated that Hance came from a hardworking, church-going family, and that everyone liked him. C.W. also testified that Hance’s invalid mother had died as a result of a physical attack and rape. C.W. 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, S.C. 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. 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. 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.
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. 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 5.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.
AFFIRMED.
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.
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.
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).
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.
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.
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 sus-piciousness 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.
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.”