Tony B. Amadeo v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center

816 F.2d 1502, 1987 U.S. App. LEXIS 8245

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 30, 1987
• Docket: 84-8485
• Status: Published

Opinions

PER CURIAM:

This appeal is before this panel for the second time. The petitioner-appellee, Tony B. Amadeo, a Georgia state prisoner under sentence of death,¹ sought a writ of habeas corpus in the United States District Court for the Middle District of Georgia. The district court granted the writ, concluding (1) that the introduction of “other crimes” evidence rendered Amadeo’s trial fundamentally unfair and (2) that minority groups were underrepresented on the master jury lists in Putnam County, Georgia, the location of Amadeo’s trial. In the first appeal, we remanded the case for a hearing to determine whether Amadeo could establish sufficient “cause” to excuse his failure to challenge the jury lists at the trial as required by Georgia law. We reserved judgment on the “other crimes” evidence issue. Amadeo v. Kemp, 773 F.2d 1141 (11th Cir.1985) (per curiam). On remand, the district court conducted a hearing and determined that sufficient “cause” existed to excuse Amadeo’s procedural default. The case is now back before us to resolve both issues on the merits. We find that Amadeo has not established sufficient “cause” to excuse the procedural default and that the introduction of the “other crimes” evidence did not deny him a fair trial in violation of his due process rights. Accordingly, we reverse the judgment of the district court.

I.

The district court first held that Amadeo’s right to a fundamentally fair trial was violated by the admission of evidence of other crimes. This evidence established that Amadeo by his own admission made in the form of a statement to the police, had been involved in a robbery and homicide in Colbert County, Alabama on September 28, 1977, the night prior to the murder and attempted robbery in Putnam County, Georgia, which occurred at approximately 8:30 A.M. on September 29, 1977. See Record on Appeal, Exhibit I, Vol. II, pp. 200-02.

On direct appeal, the Supreme Court of Georgia approved the admission of this evidence, finding that it met the Georgia standard for the admissibility of similar crimes evidence.² The supreme court also noted that the trial court instructed the jury that such evidence could be considered only to illustrate Amadeo’s state of mind at the time of the Putnam County homicide and for no other reason. Amadeo v. State, 243 Ga. 627, 629, 255 S.E.2d 718, 720, cert. denied, 444 U.S. 974, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979). Therefore, the supreme court held that the admission of the evidence, for that limited purpose, was a recognized exception in Georgia to the general rule against the admissibility of evidence of other criminal activities.³

The district court found that it was unnecessary for the State to introduce this evidence to establish identity, motive or intent to rob or to rebut Amadeo’s defense of an accidental shooting, and consequently ruled that the evidence was inadmissible and nothing more than prosecutorial overkill. The court reached this conclusion because at the time the state trial judge considered Amadeo’s motion to exclude this evidence, the State had a written confession signed by the appellee.⁴ Also, an eyewitness identified Amadeo as the person who fired the fatal shot and there was conclusive ballistics testimony.⁵

In our view, this is not the proper inquiry in a federal habeas corpus proceeding. In considering state evidentiary objections, a federal court exercises limited review. The evidentiary error must have been “of such a magnitude as to deny fundamental fairness to the criminal trial, thus violating the due process clause.” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.),⁶ cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976). See also Hall v. Wainwright, 733 F.2d 766, 770 (11th Cir.1984) (per curiam), cert. denied, 471 U.S. 1107, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985). In determining whether the admission of prejudicial evidence constitutes a denial of fundamental fairness, a federal court must decide whether the evidence is “material in the sense of a crucial, critical, highly significant factor.” Hills v. Henderson, 529 F.2d at 401. See also Osborne v. Wainwright, 720 F.2d 1237, 1238-39 (11th Cir.1983) (per curiam).

We reject the district court’s reasoning for several reasons. First, the Supreme Court of Georgia expressly ruled that the evidence was properly admitted under state law, a determination that is binding on this court as well as the district court. Since introduction of this evidence was relevant as a matter of Georgia law, we cannot say that its admission denied Amadeo fundamental fairness under these circumstances. See Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983) (per curiam), cert. denied, 466 U.S. 975, 104 S.Ct. 2355, 80 L.Ed.2d 827 (1984).

Even if this evidence was admitted in violation of Georgia law, there was still no violation of due process. The overwhelming weight of the evidence of Amadeo’s guilt of the Georgia murder defeats his argument that evidence of the Alabama crimes constituted a “crucial, critical, highly significant factor” in the case against him.

In any event, the overwhelming nature of the other evidence establishing Amadeo’s guilt would render any constitutional error harmless beyond a reasonable doubt. See Rose v. Clark, — U.S. -, -, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986):

The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, ‘the Constitution entitles a criminal defendant to a fair trial, not a perfect one.’

See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

II.

The district court also predicated its grant of the writ on its finding that the 1977 master jury lists in Putnam County underrepresented women and blacks, depriving Amadeo of his equal protection rights. Amadeo did not attack the composition of the jury lists at the trial; he first raised the issue on direct appeal to the Supreme Court of Georgia. That court refused to address this assignment of error because of Amadeo’s failure to complain of this possible infirmity at the time of trial. The district court excused this procedural default, finding that Amadeo was prevented from making out a prima facie ease of jury discrimination by the conduct of Putnam County officials. Before reaching the merits of the jury composition issue, we must first examine Amadeo’s failure to challenge these jury lists during his state court trial and the district court’s conclusion that cause existed to forgo this challenge.

A federal habeas corpus court will not consider an issue if the petitioner did not pursue that issue in the state court and thereby committed a procedural default, unless he can overcome this bar by showing cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Georgia law clearly requires a criminal defendant to make a timely jury challenge at the trial. See O.C. G.A. §§ 15-12-162, 9-14-42(b). It is also undisputed that Amadeo failed to make such a timely challenge and that this failure constituted a procedural default under Georgia law. Amadeo v. State, 243 Ga. at 629-30, 255 S.E.2d at 720. Consequently, our inquiry turns to whether Amadeo can overcome this procedural bar by demonstrating sufficient “cause” and “actual prejudice.”

Because federal courts must analyze “cause” under a wide variety of circumstances, no court has yet accorded that term a precise definition. Rather, guidance is provided by the policy rationale for the “cause” requirement. The avowed purpose of this requirement is to preserve the integrity of state judicial procedures and to bind a defendant to the tactical decisions of competent counsel, absent a miscarriage of justice. Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1, 13 (1984); Smith v. Kemp, 715 F.2d 1459, 1470 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S.Ct. 518, 78 L.Ed.2d 699 (1983).

In general, therefore, defense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, an opportunity to object at trial or to raise an issue on appeal — and then, when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court.

On the other hand, the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client’s interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met.

Reed v. Ross, 468 U.S. at 14, 104 S.Ct. at 2909, 82 L.Ed.2d at 13-14.

The Supreme Court furnished further instruction on this point in a recent decision:

[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State’s procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or that ‘some interference by officials’ ... made compliance impracticable, would constitute cause under this standard.

Murray v. Carrier, — U.S. -, - - -, 106 S.Ct. 2678, 91 L.Ed.2d 427 (1986).

We remanded this case to the district court to make the inquiry outlined in Reed. “To fulfill the causation prong ... it is necessary for petitioner to establish that the defects in the jury composition were not reasonably discoverable by his counsel and that the decision not to challenge the composition was not a deliberate bypass.” Amadeo v. Kemp, 773 F.2d at 1145. That hearing established the sequence of events relating to Amadeo’s failure to challenge the jury lists.

Amadeo’s trial counsel, William A. Prior and E.R. Lambert, testified that they considered making a challenge to the grand and petit juries and were aware that minorities were probably underrepresented in the Putnam County master jury lists. Record on Appeal, 2d Supp., pp. 8, 11-13, 20. However, after reviewing the petit jury venire with a local attorney, they elected not to pursue the challenge for various tactical reasons.

First, they were satisfied with the representation of blacks on the venire, which was approximately fifty percent. Id. at 10. One attorney stated that he would be reluctant to try the case with any more blacks on the venire because the State possessed evidence that Amadeo, a white male, had assaulted a number of blacks in Alabama and Mississippi. The lawyer feared that a jury heavily weighted with black jurors might become prejudiced against Amadeo if the State introduced this evidence at the trial. Id. at 12. Second, the attorneys were satisfied with the existing venire because it contained several members of a charismatic religious group that had shown some sympathy for the welfare of local prisoners. Id. at 13. Such individuals were viewed as less likely to impose the death penalty. Id. at 30. Counsel also were aware that these advantages might be lost if the venire was challenged and the master list was reconstituted. Id. at 9.

Amadeo’s lawyers confirmed their decision to waive a jury challenge when the actual jury selected for Amadeo’s case contained an even number of blacks and whites and a majority of women. Id. at 12, 35-36. As such, they made no challenge to either the grand or the petit juries and did not make an effort to examine the master jury lists. As one lawyer testified, “it was a tactical decision on our part not to challenge the array because of the fact that we had gone over the list with [a local attorney]; we felt like we had about as good a Jury List as we could get____we made a tactical decision, a knowing, tactical decision not to challenge the array.” Id. at 12-13.

After Amadeo was convicted and sentenced to death, and while his direct appeal was pending before the Supreme Court of Georgia, Christopher Coates, counsel in an unrelated civil suit, Bailey v. Vining, Civ. Action No. 76-199-MAC (M.D.Ga. Aug. 15-17, 1978),⁷ discovered a 1977 memorandum from the county prosecutor advising the jury commissioners to add specified numbers of blacks to the lists. The memorandum was filed in the book containing the master jury lists and was available to anyone examining those lists. Eecord on Appeal, 2d Supp., pp. 41-42, 49-50. The district court characterized this memorandum as an effort to protect the jury lists from constitutional scrutiny by placing the names of enough blacks on the lists to preclude a prima facie case of jury discrimination, but still maintain as much racial disparity as possible.⁸ Coates advised Amadeo’s counsel of this memorandum and they amended their appeal to include a challenge to the composition of the jury. As stated earlier, the Georgia Supreme Court declined to reach this issue because of the procedural default. Amadeo v. State, 243 Ga. at 629-30, 255 S.E.2d at 720.

The district court found “cause” to excuse the procedural default because the county’s efforts to maintain yet conceal racial disparity on the jury lists prevented Amadeo’s counsel from discovering the facts that could lead to a jury challenge. Once the memorandum was discovered by counsel in Bailey v. Vining and related to Amadeo’s lawyers, they acted promptly to raise the jury issue on direct appeal. In the view of the district court, this “concealment” excused the procedural default.⁹

We disagree with that conclusion. The memorandum detailing the county’s efforts to alter the racial composition of the master jury lists was not concealed from Amadeo’s counsel, but was readily discoverable in the county’s public records. Had counsel elected to examine the jury lists, they would have found the memorandum. However, they made a considered tactical decision not to mount a jury challenge because they wanted to preserve an advantageous jury venire. As such, they did not review the jury lists and thereby did not become aware of the memorandum until its discovery during the Bailey v. Vining voting rights case. These facts, in our opinion, do not establish sufficient “cause” to excuse Amadeo’s procedural default.

Our decision finds support in a 1984 decision of this court. In Birt v. Montgomery, 725 F.2d 587 (11th Cir.) (en banc), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984), a Georgia state prisoner maintained that his trial counsel’s failure to question the racial composition of the jury was unreasonable and thereby constituted “cause” excusing the procedural default as well as ineffective assistance of counsel. In that case, as here, the lawyer considered a jury challenge and made a preliminary inquiry into the composition of the jury. Id. at 598. He decided to abandon the challenge, again for tactical reasons. In the opinion of the attorney, the racial mix of the jury venire and the actual jury empaneled to try the case was advantageous to the defendant and this advantage might be lost in a jury drawn from a revised list. Id. at 598-99. We found counsel’s tactical decision was reasonable under the circumstances and denied the writ. Id. at 600-01. See also Straight v. Wainwright, 772 F.2d 674, 677-78 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1502, 89 L.Ed.2d 903 (1986). The present case calls for a similar result.¹⁰

In summary, we hold that introduction of “other crimes” evidence by the prosecution did not deny Amadeo a fair trial and that he has not established sufficient “cause” to overcome his procedural default in failing to object to the composition of the master jury lists. Accordingly, the district court erred in granting the writ of habeas corpus.¹¹

The judgment of the district court is REVERSED and the case is REMANDED for proceedings consistent with this opinion.

1 . Amadeo was convicted of murder and attempted armed robbery in the Superior Court of Putnam County, Georgia on November 30, 1977. The pertinent factual and procedural history of this case is contained in our first opinion, Amadeo v. Kemp, 773 F.2d 1141, 1142 (11th Cir.1985) (per curiam) and in the opinion of the Supreme Court of Georgia, Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718, cert. denied, 444 U.S. 974, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979).

2 . As stated in French v. State, 237 Ga. 620, 621, 229 S.E.2d 410, 411 (1976), the first criterion for the admission of evidence of independent crimes is that the defendant must be shown to have been the perpetrator of the independent crime. The second requirement is that there be a sufficient connection between the independent crime and the offense charged so that the proof of the former tends to prove the latter. See also Felker v. State, 252 Ga. 351, 359, 314 S.E.2d 621, 631, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

3 . The Georgia Supreme Court concluded that the evidence was probative of motive, i.e., that the Alabama and Georgia crimes were committed for the same reason, to obtain money while Amadeo was AWOL from the United States Marine Corps. Amadeo v. State, 243 Ga. at 629, 255 S.E.2d at 720.

4 . The confession recited:

Last night Gemini, Bill and I slept in my car, a 1977 Monte Carlo, in a roadside park somewhere on the other side of Atlanta. This morning, Thursday, 9/29/77, we drove around in Georgia on some back roads looking for a little store to hit. Bill was driving when we spotted an old white man in a brown pickup truck dumping trash in a dumpster. We passed by him and turned around to come back. When we got back, we turned around again and pulled up beside the truck. I got out of the back seat with a .22 automatic. I walked up to the truck and I asked him for his money. He said he didn’t have none. I said yeah, you do. Then that truck [driven by Talmadge Holder], it had a white cab and steel sides, pulled up. The man was still in the back of the pickup. Then I shot him. I shot one time. The man grabbed his chest and kind of slid off the right side of the truck to the ground. He turned and yelled for help and started for that other truck. I just ran for our car. Gemini had got in the back seat so I got in the front. We took off.

Record on Appeal, Exhibit I, Vol. II, p. 225.

5 . However, counsel for Amadeo maintained in opening and closing argument that the confession was involuntary and that the shooting was accidental. While no evidence was introduced by the defense on this issue, the potential for such defenses remained at the time of the admission of the "other crimes” evidence.

6 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.

7 . Bailey v. Vining was a voting rights action challenging the at-large election system used in Putnam County.

8 . Courts have indicated that a ten percent or smaller disparity between the proportion of a minority group in the relevant local population and its representation on jury lists is acceptable under the Constitution. Larger disparities may justify finding an equal protection violation. See Swain v. Alabama, 380 U.S. 202, 208-09, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766 (1965); Bowen v. Kemp, 769 F.2d 672, 684-86 (11th Cir.1985); Preston v. Mandeville, 428 F.2d 1392, 1393-95 (5th Cir.1970). See generally Castaneda v. Partida, 430 U.S. 482, 494-95, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510-11 (1977) (elements of a prima facie case of jury discrimination).

After the Putnam County jury commissioners complied with the prosecutor’s suggestion, the grand jury list underrepresented blacks by 10.7% and the petit jury list underrepresented blacks by 5.1%. See Record on Appeal, Petitioner’s Exhibit 4.

9 . In their testimony before the district court after remand, Amadeo’s attorneys stated that had they known of the memorandum and the racial disparity created by it, they would have launched an attack on the racial composition of the jury. See Record on Appeal, 2d Supp., pp. 25-27, 46, 58-59, 62. These statements made after the conviction and sentence are in direct conflict with their earlier testimony that they suspected racial disparity in the list but made a conscious election to forgo a challenge because of the favorable jury array.

10 . Since we conclude that Amadeo has failed to establish “cause” for his procedural default, we do not address the issue of "actual prejudice” or reach the merits of his jury challenge.

11 . Amadeo raised eight issues in his federal petition for habeas corpus. He claims that the jury lists were unconstitutional, that the admission of the "other crimes" evidence denied him a fair trial, that his confession was involuntary, that trial counsel was ineffective, that the trial court gave improper jury instructions on armed robbery, mitigating circumstances and the jury's right to recommend a life sentence, and that the Supreme Court of Georgia failed to properly evaluate the proportionality of his death sentence. The district court considered only the first two issues when it granted the writ. The failure to address the six remaining issues requires a remand for the resolution of these questions.