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John E. BROGDON
Classification: Murderer
Characteristics: Rape - Torture
Number of victims: 1
Date of murder: October 7,
1981
Date of arrest:
Same day
Date of birth: 1962
Victim profile: Barbara Jo Brown
(female, 11)
Method of murder:
Beating with a brick
Location: St. Charles Parish, Louisiana, USA
Status:
Executed by
electrocution in Louisiana on July 30,
1987
John E. Brogdon
was executed on July 30, 1987. Brogdon and his co-defendant Bruce
Perritt were convicted of raping, beating, and stabbing to death 11-year-old
Barbara Jo Brown behind a levee near Luling on October 7, 1981.
Perritt received a
life sentence when the jury deadlocked in the penalty phase.
Brogdon made no
formal final statement. As he turned to seat himself in the
electric chair, his last words were:
"God bless y'all."
Louisiana executes murderer of
11-year-old girl
The New
York Times
July 30, 1987
John Brogdon was executed early this morning in the Louisiana State
Penitentiary electric chair for the rape and torture murder of an
11-year-old girl.
Mr. Brogdon, 25 years old, was pronounced at
12:12 A.M., said C. Paul Phelps, secretary of the Department of
Corrections.
The United States Supreme Court refused Wednesday
night on a vote of 6 to 2 to stay the execution.
Mr. Brogdon was the seventh inmate executed in
Louisiana since June and the second within a week.
Mr. Brogdon had argued that he should be spared
because he was mentally retarded and the victim of child abuse. Time
With Religious Adviser
Warden Hilton Butler at the Louisiana State
Penitentiary said Mr. Brogdon spent his final hours with a religious
adviser, Rabbi Myra Soifer.
''He's calm and everything's going fine,'' Warden
Butler said after Mr. Brogdon received word of the High Court's
decision.
Mr. Brogdon was condemned to die for the Oct. 7,
1981, rape and torture murder of Barbara Jo Brown, who was beaten
with bricks, stabbed with broken bottles and jabbed with pointed
sticks while she was raped.
An accomplice, Bruce Perritt, who was 17 years
old at the time, was sentenced to life in prison for the crime.
The Louisiana Supreme Court, Federal District
Court, and the United States Court of Appeals for the Fifth Circuit
refused this week to block Mr. Brogdon's execution.
The State Pardon Board also rejected arguments
that Mr. Brogdon should be spared because he was mildly retarded and
was abused as a child by his father.
His father, Ed Brogdon, admitted to the State
Pardon Board that he drank liquor and smoked marijuana with his
teen-age son, and said he had beat him so severely that he once
broke some of the boy's ribs.
John Brogdon, described as an alcoholic since he
was 14 years old, said during the hearing that he did not think he
deserved clemency, but, ''I would like to live.''
Assistant District Attorney Greg Champagne of St.
Charles Parish argued that although Mr. Brodgon might be somewhat
mentally retarded, he knew right from wrong at the time of the
murder and was mentally competent to stand trial.
Mr. Brogdon had execution dates set aside in 1982
and 1983.
Murderer of Girl Is Put to
Death in Louisiana
The
New York Times
July 31, 1987
A mentally retarded man who said he was the victim of child abuse
went to his death calmly in Louisiana's electric chair early today
for raping, torturing and murdering an 11-year-old girl in 1981.
John Brogdon, 25 years old, who was pronounced
dead at 12:12 A.M. at the state prison, was the seventh person
executed in Louisiana since June and the second this week. The state
has put seven others to death since it resumed executions in 1983.
Mr. Brogdon, asked if he wanted to make a
statement before he was executed, replied, ''God bless you all.''
Hours earlier, the United States Supreme Court, Mr. Brogdon's last
hope for evading the electric chair a third time, refused to stay
the execution on a vote of 6 to 2.
The Louisiana Supreme Court, the Federal District
Court and the United States Court of Appeals for the Fifth Circuit
also refused this week to block the execution. The State Pardon
Board also rejected arguments that Mr. Brogdon should be spared
because he was mildly retarded and was abused as a child by his
father.
Mr. Brogdon, who was 19 years old when he was
arrested, was condemned to die for the slaying on Oct. 7, 1981, of
Barbara Jo Brown, who was beaten with bricks, stabbed with broken
bottles and jabbed with pointed sticks while she was raped, then
struck with a brick.
'I Would Like to Live'
His father, Ed Brogdon, admitted at the Pardon
Board hearing that he drank and smoked marijuana with his teen-age
son, and said he beat his son so severely that he once broke some of
the boy's ribs.
John Brogdon, described as an alcoholic since he
was 14, said at the hearing that he did not think he deserved
clemency but added, ''I would like to live.''
Mr. Brogdon told officers how he and Bruce
Perritt, 17, had killed the victim by striking her on the head with
a brick after repeatedly raping her near her home in Luling. Mr.
Perritt was convicted of first-degree murder but was automatically
sentenced to life in prison when the jury could not agree on whether
to recommend the death penalty.
Mr. Brogdon's lawyers had argued that his
execution should be postponed until the Supreme Court ruled in the
fall whether juveniles convicted of murder can be executed. They
said the issue was related to the fact that Mr. Brogdon was mentally
retarded because they involved people too immature to fully
understand the consequences of their actions.
Assistant District Attorney Greg Champagne of St.
Charles Parish argued that although Mr. Brodgon might be somewhat
mentally retarded, he knew right from wrong at the time of the
murder and was mentally competent to stand trial.
790 F.2d 1164
John E. Brogdon, Petitioner-Appellant,
v.
Frank Blackburn, Warden of the Louisiana State
Penitentiary, At Angola,
Louisiana, Respondent-Appellee.
No. 85-3451
Federal
Circuits, 5th Cir.
June 27, 1986
Appeal from
the United States District Court for the Eastern
District of Louisiana.
Before CLARK, Chief Judge,
WILLIAMS and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Appellant John Brogdon is at
Angola State Penitentiary, Louisiana, under
sentence of death. Brogdon was to have been
executed on August 2, 1985. Two days before his
scheduled execution, Brogdon asked this Court
for habeas corpus relief. Because insufficient
time remained for us to consider his claims
properly, we granted a stay of execution.
Upon a careful review of
these claims and the record and a critical
intervening decision of the United States
Supreme Court, we now find that Brogdon raises
no ground upon which relief may be granted. We,
therefore, deny Brogdon a certificate of
probable cause, and we vacate the stay of
execution entered in our previous order.
I.
On the evening of October 7,
1981, Rubeta Brown and her eleven-year old
sister, Barbara Jo, walked to a convenience
store near their home in Luling, Louisiana, to
use the telephone. Nineteen-year old Brogdon and
his seventeen-year old friend, Bruce Perritt,
arrived at the store while Rubeta was on the
phone.
Perritt approached Barbara Jo
and put his arm around her. Rubeta called her
sister away, and the two left. On the way home,
Barbara Jo asked her sister if she could visit a
neighbor's home for a few minutes. Rubeta
allowed her sister to leave her to do so. Rubeta
went to the neighbor's house about ten minutes
later to pick up Barbara Jo. Barbara Jo, however,
was not there. After a short search in the
neighborhood, Rubeta informed her mother that
Barbara Jo was missing. The Browns then called
the sheriff's office.
Soon thereafter, a friend of
Barbara Jo's came forward to say that he had
seen Barbara Jo earlier that evening in a car
seated between Brogdon and Perritt. Two men
discovered Barbara Jo's body later that evening
behind a levee in Luling. Perritt's car was
found parked a short distance away.
Two other men later informed
authorities that they had seen Brogdon and
Perritt walking on the road near this levee.
Brogdon was without a shirt and "appeared
disheveled." Brogdon and Perritt were arrested
that evening at Brogdon's home on suspicion of
Barbara Jo's murder.
After being informed of his
Miranda rights at the sheriff's office, Brogdon
waived his right to counsel and confessed to the
murder and aggravated rape of Barbara Jo. In his
statement, Brogdon told how he and Perritt
tortured and killed her. Instead of visiting the
neighbor's home that night, Barbara Jo had
returned to the convenience store and met with
Brogdon and Perritt. The confession admitted
that after they picked her up at the convenience
store, Brogdon and Perritt drove her to the
levee where her body was later found.
Here, Brogdon and Perritt
repeatedly raped her and forced her to perform
oral sex on them. All during the while, the two
beat Barbara Jo with their fists. They also
broke bottles on the cement and then stabbed her
repeatedly with the edges. Perritt also struck
Barbara Jo in the head with a brick that he
found nearby. Brogdon then beat her with the
brick. The two also used pointed sticks to
pierce her body. Brogdon and Perritt left the
scene of the crime and Perritt's vehicle when
they thought a motor vehicle was approaching.
Brogdon was convicted by a St.
Charles Parish jury of murder and aggravated
rape. He was sentenced to death for his part in
the murder.1
The trial judge entered judgment accordingly on
February 16, 1982. The Louisiana Supreme Court
affirmed Brogdon's conviction, but reversed his
death sentence and remanded his case for a new
sentencing hearing. State v. Brogdon, 426 So.2d
158 (La.1983). After a change of venue, Brogdon
was again sentenced to death at the second
proceeding. The Louisiana Supreme Court this
time affirmed his sentence. State v. Brogdon,
457 So.2d 616 (La.1984), cert. denied, --- U.S.
----, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985).
Brogdon's execution was
scheduled for August 2, 1985. After exhausting
all attempts to obtain post-conviction relief in
the state courts, Brogdon filed a petition for
habeas corpus in the United States District
Court for the Eastern District of Louisiana on
July 29, 1985. The district court denied
Brogdon's petition on July 30, 1985, and also
denied Brogdon a certificate of probable cause
to appeal to this Court.
Brogdon then asked this Court
to stay his execution and to grant him a
certificate of probable cause. Brogdon was
granted a stay of execution on July 31, 1985, so
that his claims would not be mooted before we
could review them. We now address each of
Brogdon's claims.
II.
Brogdon initially presented
19 claims for relief to the district court. On
appeal, he raises only 6 of these before us. In
reviewing Brogdon's sentence, we may grant him a
certificate of probable cause only if he makes a
" 'substantial showing of the denial of [a]
federal right.' " Barefoot v. Estelle, 463 U.S.
880, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090
(1983), quoting Stewart v. Beto, 454 F.2d 268,
270 n. 2 (5th Cir.1971), cert. denied,
406 U.S. 925 , 92 S.Ct. 1796, 32 L.Ed.2d
126 (1972). A "substantial showing" is
one in which a petitioner demonstrates that his
"issues are debatable among jurists of reason."
Id. at n. 4.
A. Suppression of
Favorable Evidence
Brogdon's first claim is that
evidence favorable to him may have been
unlawfully suppressed by the prosecution. Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963); U.S. v. Bagley, --- U.S. ----, 105
S.Ct. 3375, 87 L.Ed.2d 481 (1985). Brogdon
alleges that despite a request by his counsel,
the prosecuting authorities did not turn over to
him the results of a blood alcohol test they
might have conducted.
After police authorities
arrested Brogdon on the night of the murder,
they drew a blood sample from him with his
consent. This sample was tested to determine
Brogdon's blood type. Prior to the second
sentencing trial, Brogdon's attorney asked the
prosecution for the results of any scientific
tests conducted on his client. The state's
evidence was to the effect that there had been
no tests, and no test results were handed over.
Brogdon argues that a blood test would have
shown that he was intoxicated at the time of the
murder. He claims that the jury would not have
sentenced him to death if this evidence had been
presented to them. Brogdon now asks for an
evidentiary hearing to determine whether a blood
alcohol test was conducted.
The successful establishment
of Brogdon's claim requires three findings: (1)
the prosecution suppressed evidence; (2) this
evidence was favorable to the accused; and (3)
the evidence was "material either to guilt or
punishment." Brady, 373 U.S. at 87, 83 S.Ct. at
1196; Sellers v. Estelle, 651 F.2d 1074, 1076
(5th Cir.1981), cert. denied, 455 U.S. 927, 102
S.Ct. 1292, 71 L.Ed.2d 472. Suppressed evidence
is material "if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different." Bagley,
--- U.S. at ----, 105 S.Ct. at 3384; See also
Lindsey v. King, 769 F.2d 1034, 1041 (5th
Cir.1985). We reject Brogdon's claim for failure
to establish two of the requirements.
First, there is no indication
from the record that the prosecution suppressed
evidence of a blood alcohol test since there is
no evidence that such a test was ever conducted.
Ms. Sherry Kirkland, a forensic biologist,
tested Brogdon's blood sample to determine his
blood type. She testified that she did not
conduct a blood alcohol test, nor was she aware
if anyone else did. The state asserts that it
has no knowledge of a blood alcohol test being
conducted on Brogdon's blood sample. Without
some stronger indication this evidence exists,
Brogdon's claim must fail. The prosecution has
no duty to turn over to the defense evidence
that does not exist.
Second, even if a blood test
that showed Brogdon was intoxicated existed and
was suppressed by the prosecution, it would not
be material. Inasmuch as the jury was already
aware that Brogdon had been drinking heavily
that day, it is unlikely that a blood test
confirming this would have altered their
recommendation in view of the nature of the
crime.
Brogdon had confessed that he
and his accomplice, Perritt, had each had six
cans of beer shortly before they picked up
Barbara Jo Brown. Deputy Sheriff Elvin Folse of
St. Charles Parish testified that he found some
empty beer cans in the car driven by Brogdon and
Perritt. At trial, Nancy Rumage, a psychologist
who testified on behalf of Brogdon, told the
jury that Brogdon possessed a "borderline
personality" that could be spurred into a "psychotic
episode" by the slightest disappointment. Such
an episode, she explained, was exacerbated by
the consumption of alcohol. Ms. Rumage also
testified that Brogdon was already an alcoholic
at age 14.
Dr. Dennis Franklin later
testified that because of a personality disorder
and mental retardation, Brogdon's ability to
function while under the influence of alcohol
was lower than that of someone of normal
intelligence. Brogdon's attorney also made
reference during his closing argument to
Brogdon's drinking on the night of the murder.
In light of the evidence showing that Brogdon
had been drinking heavily on the day of the
murder, and of the impact alcohol had upon him,
we find that a blood alcohol test showing
appellant to be intoxicated could not have been
expected to change the jury's recommendation
that he be sentenced to death.2
B. Ineffective Assistance
of Counsel
Brogdon contends that his
trial counsel was ineffective. Specifically,
Brogdon claims that his counsel was ineffective
because he failed to call several witnesses to
testify on Brogdon's behalf during the
sentencing phase of his trial and also because
he failed to investigate the existence of the
blood alcohol test discussed above. We find both
of these claims without merit.
To establish his claim,
Brogdon must show first, that his counsel's
performance was deficient to the point that he
did not receive a right to "counsel" as
guaranteed by the Sixth Amendment, and second,
his counsel's performance was so deficient as to
make the sentencing result "unreliable".
Strickland, 466 U.S. 668, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). The standard for the
first prong of the Strickland analysis is an
objective one governed by prevailing
professional standards of the legal community.
Id. at 687, 104 S.Ct. at 2065; Mattheson v. King,
751 F.2d 1432, 1437 (5th Cir.1985), cert.
dismissed as moot, --- U.S. ---, 106 S.Ct. 1798,
90 L.Ed.2d 343 (1986).
Because this analysis must be
applied from counsel's perspective during trial
and because counsel may pursue his client's
defense effectively in different ways, there is
a strong presumption that counsel's efforts were
professionally reasonable. Strickland, 466 U.S.
at 687, 104 S.Ct. at 2065. Our review of the
record under this standard indicates Brogdon's
claims must fail. Brogdon's counsel was
competent and able well above the standard
required by Strickland.
Brogdon argues that members
of his family should have been called as
additional witnesses in the sentencing portion
of his trial. Affidavits of these potential
witnesses show that they would have testified as
to the harsh and difficult nature of Brogdon's
childhood and to positive attributes of his
personality. Evidence of this kind was amply
presented to the jury during the sentencing
proceeding by other witnesses called by
Brogdon's attorney. This evidence would,
therefore, have been merely cumulative.
Thus, the decision of
Brogdon's attorney not to call these witnesses
could well have been a proper exercise of
professional judgment. But even assuming,
contrary to the record, that counsel's
performance on this issue was critically
deficient, Brogdon makes no showing that he was
prejudiced in any way by the failure to present
this cumulative testimony. Without a showing of
prejudice, there is no showing that the
sentencing result is "unreliable" as required by
the second element of the Strickland test.
The failure of Brogdon's
counsel to pursue further the existence of a
blood alcohol test did not constitute
ineffective assistance of counsel. Brogdon's
counsel did request the results of all
scientific tests conducted by the prosecution.
The prosecution was bound to turn over any
results to him. As the government's evidence was
to the effect that there had been no tests and
none were turned over, counsel cannot be faulted.
Moreover, it was plausible for Brogdon's counsel
to believe that there was sufficient other
evidence of Brogdon's alcohol consumption that
evening so as to render the results of a blood
alcohol test superfluous. In any event, there is
no showing that Brogdon was prejudiced by
counsel's conduct as to the claim Brogdon was
intoxicated.
C. Lockhart Claim
Brogdon argued that
Louisiana's practice of excluding prospective
jurors from the guilt phase of capital trials
because of their conscientious inability to
impose the death penalty, under Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), makes capital juries conviction
prone. This, Brogdon argued, deprived him of his
Sixth and Fourteenth Amendment rights to an
impartial jury. This claim is foreclosed by the
Supreme Court's recent decision in Lockhart v.
McCree, --- U.S. ---, 106 S.Ct. 1758, 90 L.Ed.2d
137 (1986).
D. Co-defendant's Sentence
Brogdon argues that the trial
court improperly refused to allow him to
introduce as mitigating evidence the fact that
Perritt had been sentenced to life imprisonment
for his part in the crime. Brogdon contends that
this violated his rights under Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978). In Lockett, the Supreme Court
invalidated the Ohio death penalty statute
because it improperly restricted the kinds of
mitigating evidence the defendant could
introduce at her sentencing hearing. Id. at 604,
98 S.Ct. at 2965.
The Supreme Court held that a
capital sentencing scheme could not bar as
mitigating evidence "any aspect of a defendant's
character or record and any of the circumstances
of the offense that the defendant proffers for a
sentence less than death." Id. Lockett, however,
does not require a trial court to allow a
capital defendant to introduce evidence not
relevant to his "character, prior record, or the
circumstances of his offense." Id. at n. 7.
Perritt's life sentence is
not relevant to Brogdon's character or offense.
This fact is relevant only to the task of
comparing the proportionality of Brogdon's
sentence to the sentences of others similarly
situated, a function assigned by statute in
Louisiana to the state Supreme Court. La.Code
Crim.Proc. art. 905.9. This evidence was
properly excluded.
The Supreme Court's recent
decision in Skipper v. South Carolina, --- U.S.
---, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), does
not alter the law. In Skipper, the Supreme Court
held that a defendant in a capital crime could
not be prevented from introducing evidence
showing that he would make a "good adjustment"
to prison life. Skipper, --- U.S. at ---, 106
S.Ct. at 1672. On its facts, Skipper merely
reaffirms Lockett and evinces no extension of
what mitigating evidence a capital defendant may
introduce at sentencing.E. Proportionality
Brogdon claims that the death
penalty is imposed in an arbitrary and
capricious manner in Louisiana. Specifically, he
challenges his death sentence on two grounds.
First, Brogdon alleges that death sentences in
Louisiana are imposed in a racially
discriminatory manner. He claims that defendants
convicted of murdering whites are more likely to
be sentenced to death than those convicted of
murdering blacks. Brogdon offers to prove this
by statistical evidence. Even if we were to
accept this evidence as true, Brogdon's claim is
without merit inasmuch as it presents no
evidence of discriminatory intent in the
imposition of the death penalty in Louisiana.
Prejean v. Maggio, 765 F.2d 482, 486 (5th
Cir.1985), modifying, 743 F.2d 1091 (1984), cert.
pending, No. 85-5609.
Brogdon also claims that the
Louisiana Supreme Court's proportionality review
of death sentences is improper. Specifically, he
alleges his sentence is disproportionate in view
of Perritt's life sentence for the same crime.
Brogdon also challenges broadly the comparative
review of death sentences conducted by the
Louisiana Supreme Court.
A state need not even
undertake any sort of proportionality review of
death sentences so long as the underlying
sentencing scheme minimizes arbitrary and
capricious sentencing. Pulley v. Harris, 465 U.S.
37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984);
Mattheson, 751 F.2d at 1446. Louisiana,
nevertheless, has provided Brogdon with such a
review in spite of his conviction for a
particularly heinous crime. Previous decisions
of this Court have upheld this review from
constitutional attack. Prejean, 765 F.2d at 484;
Williams v. Maggio, 679 F.2d 381, 394 (5th
Cir.1982) (en banc), cert. denied,
463 U.S. 1214 , 103 S.Ct. 3553, 77 L.Ed.2d
1399 (1983).
The fact that Brogdon's
codefendant received a life sentence instead of
a death sentence failed to present a
constitutional challenge in this case.
Sentencing hearings in capital cases focus not
only upon the circumstances of the underlying
crime, but also upon the personal attributes of
each of the defendants. Brogdon's challenge on
this issue fails.
F. Denial of Evidentiary
Hearing
Brogdon's final claim is that
the district court improperly denied him an
evidentiary hearing as he asserts is required by
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9
L.Ed.2d 770 (1963). There is no such automatic
requirement of a hearing. There were no factual
determinations that needed to be resolved.
Brogdon was afforded an adequate opportunity to
develop his claims. We affirm the district
court's judgment on this issue as well.
III.
Appellant's motion to proceed
in forma pauperis is granted. His application
for a certificate of probable cause is denied.
Our stay of execution granted appellant on July
31, 1985, is vacated.
STAY VACATED AND APPEAL
DISMISSED.
*****
1
Perritt was convicted at a separate trial of
first-degree murder for his part in this crime.
He was sentenced to life imprisonment, however,
when the jury in his case was unable to agree
upon a sentence
2 We
note further that because the blood sample was
drawn one to two hours after the murder was
committed, its probative value would have been
questionable. Even if it showed Brogdon was
intoxicated, it could not tell how much of his
intoxication could have resulted from alcohol
consumed after Brogdon and Perritt left the
levee
824 F.2d 338
John Brogdon, Petitioner-Appellant,
v.
Robert Hilton Butler, Warden, Louisiana State
Penitentiary At Angola,
Louisiana, Respondent-Appellee.
No. 87-3553
Federal
Circuits, 5th Cir.
July 30, 1987
Appeal from
the United States District Court for the Eastern
District of Louisiana.
Before CLARK, Chief Judge,
POLITZ and WILLIAMS, Circuit Judges.
PER CURIAM:
John E. Brogdon is under
sentence of death and scheduled to be executed
on July 30, 1987, by the State of Louisiana. He
petitions for the right to appeal in forma
pauperis, for a certificate of probable cause to
appeal, and for a stay of execution. Brogdon has
presented two previous petitions for habeas
corpus relief in the state courts, and this is
his second petition for relief under 28 U.S.C.
Sec . 2254. We grant the petition to
appeal in forma pauperis. We deny the petition
for a certificate of probable cause to appeal
and for a stay of execution and dismiss the
appeal.
Facts
John Brogdon was convicted of
first degree murder on February 4, 1982. On that
same day, the jury recommended that Brogdon
receive the death sentence. The trial court then
sentenced Brogdon to die. On appeal, the
Louisiana Supreme Court affirmed the first
degree murder conviction. Because of an
erroneous charge given to the jury by the trial
court in the sentencing instructions, Brogdon's
death sentence was vacated, and the case was
remanded for resentencing. State v. Brogdon, 426
So.2d 158 (La.1983).
On remand, a joint motion for
a change of venue was granted, and the second
sentencing hearing was held in Franklin,
Louisiana on June 13-17, 1983. The second jury
recommended that Brogdon receive the death
sentence, and the court entered the sentence.
Under Louisiana law, the jury's "recommendation"
of a death sentence requires the court to assess
that penalty. La.Code Crim.Proc.Ann. art. 905.8
(West 1984)
On appeal, the Louisiana
Supreme Court affirmed the death sentence. State
v. Brogdon, 457 So.2d 616 (La.1984). Brogdon
filed a petition for certiorari with the United
States Supreme Court, and the petition was
denied on May 13, 1985. Brogdon v. Louisiana,
471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862,
reh'g denied,
473 U.S. 921 , 105 S.Ct. 3547, 87 L.Ed.2d
670 (1985).
Brogdon filed his first
petition for habeas corpus relief in July, 1985,
in Louisiana district court. That court and the
Louisiana Supreme Court both denied relief.
Brogdon then petitioned for a writ of habeas
corpus under 28 U.S.C. Sec . 2254 in the
United States District Court, which also denied
his petition. Brogdon appealed to this Court.
We granted him a stay of
execution on July 31, 1985, pending a
consideration of his many claims. After a
careful review of his claims and a critical
intervening decision by the United States
Supreme Court, we denied Brogdon a certificate
of probable cause on May 30, 1986, and
simultaneously vacated our stay of execution.
790 F.2d 1164 (5th Cir.1986). Brogdon's motion
for a rehearing en banc was denied on June 27,
1986.
793 F.2d 1287 (5th Cir.1986) (en
banc).
On September 9, 1986, Brogdon
filed a petition for writ of certiorari with the
United States Supreme Court. A stay of execution
was granted on September 11, 1986, pending
consideration of his petition for certiorari. On
May 4, 1987, the stay was vacated when the
Supreme Court denied the petition. Brogdon v.
Blackburn, --- U.S. ----, 107 S.Ct. 1985, 95
L.Ed.2d 824 (1987).
On June 18, 1987, Louisiana
issued a new warrant of execution setting July
30 as the execution date for Brogdon. On July
24, thirty-seven days after the warrant was
issued and only six days before his scheduled
execution date, Brogdon's counsel filed
Brogdon's second petition for a writ of habeas
corpus in the Louisiana state district court.
The delay raises the spectre that counsel
undertook to place such time constraints upon
the courts that another stay of execution could
be obtained, not on the merits of Brogdon's
claims, but simply because of the pressure of
time.
Nevertheless, the state
district court denied relief on July 27, and the
Louisiana Supreme Court denied relief on July
28. Brogdon then filed this petition for writ of
habeas corpus and for a third stay of execution
in the United States District Court, which
denied the petition on July 28. Brogdon now
appeals to this Court. We have spared no effort
in reviewing the record, as we became familiar
with the case and the record prior to the filing
of this petition pursuant to our established
procedure. Local Rule 8 and Fifth Circuit
Internal Operating Procedure following that rule.
Standards of Review
The issue before us is
whether the petitioner has made a sufficient
showing to justify the granting of a certificate
of probable cause to appeal and a stay of
execution so that the appeal can be considered
on the merits.
The standard for granting a
certificate of probable cause (CPC) under
Fed.R.App.P. 22(b) is whether there has been a
substantial showing of a denial of a federal
right. Stewart v. Beto, 454 F.2d 268, 279 n. 2
(5th Cir.1971).
The standard for reviewing an
application for a stay of execution has been set
out by this court many times:
In general, a court, in
deciding whether to issue a stay, must consider:
(1) whether the movant has made a showing of
likelihood of success on the merits, (2) whether
the movant has made a showing of irreparable
injury if the stay is not granted, (3) whether
the granting of the stay would substantially
harm the other parties, and (4) whether the
granting of the stay would serve the public
interest.
In a capital case, "while the
movant need not always show the probability of
success on the merits, he must present a
substantial case on the merits when a serious
legal question is involved and show that the
balance of the equities (i.e. the other three
factors) weighs heavily in favor of granting the
stay." O'Bryan v. McKaskle, 729 F.2d at 993,
citing Ruiz v. Estelle, 666 F.2d at 856.
In deciding whether the
requirements have been met for the granting of a
CPC and a stay, the merits of the habeas corpus
claims obviously must be considered to the
extent necessary to determine whether they are
substantial.
The Claims
The United States District
Court held a hearing and concluded that the
present application constituted an abuse of the
writ, Rule 9(b), 28 U.S.C. foll. Sec. 2254.
Nevertheless, the district court considered on
the merits and rejected all of petitioner's
claims that had not been earlier adjudicated. We
agree with the district court, but alternatively
consider and reject all seven of petitioner's
claims. We summarize them briefly, and consider
them in turn:
1. Petitioner's death
sentence violates the Constitution because one
of the aggravating circumstances fully overlaps
with a circumstance the State proved to
establish his guilt of first degree murder.
2. Execution of mentally
retarded petitioner would constitute cruel and
unusual punishment.
3. The admission of
photographs at the sentencing hearing violated
petitioner's right to a fair sentencing hearing.
4. The denial of petitioner's
right to an evidentiary hearing on the issue of
the State's suppression of favorable evidence
violated due process.
5. The trial court's ruling
that testimony concerning the sentence received
by petitioner's co-indictee was not relevant
mitigating evidence violated the Eighth
Amendment.
6. Capital punishment is
excessive.
7. Electrocution is a cruel
and unusual means of punishment.First Claim
Petitioner's first claim
raises the same issue raised in Lowenfield v.
Phelps, 817 F.2d 285 (5th Cir.), cert. granted,
--- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734
(1987). That issue is whether a statutory
aggravating circumstance can be used to justify
the sentence of death if that same circumstance
is an element of the underlying crime for which
the death sentence is meted out. In this case,
the aggravating circumstance is aggravated rape.
We need not address the
Lowenfield issue in this case, however, because
the jury found two aggravating circumstances at
the sentencing phase of this case. One was
aggravated rape; the other was that "the offense
was committed in an especially heinous,
atrocious, or cruel manner." State v. Brogdon,
457 So.2d at 622. Even if the former
circumstance is found invalid, the latter is
sufficient to support imposition of the death
penalty. The Supreme Court has specifically held
that when, by statute, only one aggravating
factor is required to support the capital
penalty and two or more are found, the death
sentence is not made invalid by the invalidity
of only one of the aggravating factors. Zant v.
Stephens, 462 U.S. 862, 885-89, 103 S.Ct. 2733,
2747-49, 77 L.Ed.2d 235 (1983). See also
Williams v. Maggio, 679 F.2d 381 (5th Cir.1982)
(en banc), cert. denied,
463 U.S. 1214 , 103 S.Ct. 3553, 77 L.Ed.2d
1399 (1983). (Judge Politz and Judge
Williams continue to adhere to the reasoning of
the dissenting opinion authored by Judge Randall
in Maggio, but acknowledge that this panel is
bound by both Zant and the Maggio majority.)
The grant of the petition for
certiorari in Lowenfield can be of no aid to
petitioner because a valid aggravating
circumstance would still stand even if the
application of the aggravated rape circumstance
were found invalid. Celestine v. Butler, --- U.S.
----, 108 S.Ct. 6, 96 L.Ed.2d ---- (1987). We
note further that the Supreme Court has not
granted certiorari in every case raising the
Lowenfield issue. See Watson v. Butler, --- U.S.
----, 108 S.Ct. 6, 96 L.Ed.2d ---- (1987). Under
the current law the use of aggravated rape as an
element of the substantive crime and also as an
aggravating factor at the sentencing phase is
proper and does not support the grant of a CPC
or a stay of execution.
Second Claim
Petitioner's second claim is
that the execution of a mentally retarded person
constitutes cruel and unusual punishment, even
though the claimed mental retardation was
considered and rejected in the guilt phase of
the trial. Petitioner cites no authority for his
contention, and we can find none. Mental
retardation does not constitute insanity or
incapacity to know the difference between right
and wrong. It is only the latter disability, not
the former, that serves as a defense to
conviction and also to punishment. See DeAngelas
v. Plaut, 503 F.Supp. 775, 782 (D.C.Conn.1980).
Petitioner raised the defense
of diminished mental capacity both at trial and
at the sentencing phase as a mitigating
circumstance. State v. Brogdon, 457 So.2d at
627-28. The jury rejected the claim as a defense
in the guilt phase, and the claim was presented
to the jury for its consideration in the
sentencing phase. In spite of the claim, the
jury recommended the death sentence. But
petitioner now asserts that he cannot be
executed because of his low mental capacity.
Petitioner's mental health
claim is based on his low I.Q., which is
presumptively the same now as it was at trial,
as well as at the time the crime was committed.
Because petitioner does not now claim that the
state court erred in its determination that his
mental capacity was sufficient at the time of
trial to hold him responsible for his actions in
a capital case, we must reject petitioner's
claim that his unchanged mental capacity does
not permit execution. If he is mentally
competent to be held guilty of a capital crime,
and petitioner does not challenge this, he is
competent to be punished for that crime.Third
Claim
Petitioner's third claim is
that the admission at the sentencing hearing of
graphic photographs of the body of the victim
violated his right to a fair sentencing hearing
under the Eighth Amendment. Petitioner objected
to the introduction of photographs both at trial
and at the sentencing hearing. The Louisiana
Supreme Court held that the admission of
photographs at the guilt phase was not error,
because the photographs were
relevant to show the location
of the body, the manner of death and attempted
disposal of the body, and the specific intent of
the defendant to kill the victim. The pictures
were relatively inoffensive, and it is
abundantly clear that their probative value
outweighed any prejudice to the defendant.
State v. Brogdon, 426 So.2d
at 169. Petitioner does not take issue with this
determination by the state court.
If such photographs were
concededly relevant and properly admitted at the
guilt phase of petitioner's trial, then we
cannot find that those and other similar
photographs were improperly admitted at the
sentencing phase, unless they were significantly
more inflammatory than those introduced at the
guilt phase. Such a comparison is not advanced
by petitioner. The Louisiana statute regulating
sentencing hearings in capital cases provides as
follows:
The sentencing hearing shall
focus on the circumstances of the offense....
The jury may consider any evidence offered at
the trial on the issue of guilt.
La.Code Crim.Proc.Ann. art.
905.2 (West 1984). The constitutionality of
these specific provisions has been tested and
affirmed. State v. Sonnier, 379 So.2d 1336,
1356-57 (La.1979), appeal after remand, 402
So.2d 650 (La.1981), cert. denied, 463 U.S.
1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412, reh'g
denied,
463 U.S. 1249 , 104 S.Ct. 36, 77 L.Ed.2d
1455 (1983).
The photographs at issue were
relevant to show the circumstances of the
offense, and the aggravation of heinousness. As
the United States District Court noted, after a
hearing and viewing the photographs, "[t]here is
no antiseptic way to present such evidence."
Brogdon v. Butler, No. 87-3495 (E.D.La. July 28,
1987).
In an attempt to avoid the
introduction of the photographs, petitioner
offered to stipulate the heinousness of the
crime. But the condition of the body of the
victim was highly relevant to the asserted
aggravation. The issue of the asserted undue
inflammatory nature of the photographs presented
a matter within the discretion of the state
district court. See State v. Watson, 449 So.2d
1321, 1326 (La.1984) ("An offered stipulation
bears upon this balancing test, but the decision
is primarily one for the trial court."), cert.
denied,
469 U.S. 1181 , 105 S.Ct. 939, 83 L.Ed.2d
952 (1985).
The United States District
Court properly entertained "serious doubts of
whether it is the function of a federal court to
review a finding by a Louisiana trial court,
affirmed by the Louisiana Supreme Court, that
the probative value of these photographs
outweighs the possible inflammatory effect."
Brogdon v. Butler, supra.
Petitioner claims that this
exact issue is now before the Supreme Court in
Thompson v. Oklahoma, 724 P.2d 780 (Okla.Crim.App.1986),
cert. granted, --- U.S. ----, 107 S.Ct. 1284, 94
L.Ed.2d 143 (1987). Thompson raises the issue of
whether the admission of concedely inflammatory
evidence in a capital case against a sixteen-year-old
can be considered harmless error merely because
of strong evidence of guilt. This is not the
situation with which we are presented because
the evidence at issue in Thompson was concededly
admitted in error.
In this case, petitioner has
not carried the burden of showing the
photographs were admitted in error. Finally, we
stress that petitioner had the opportunity to
raise this issue in his earlier petition and did
not do so. We must reject his claim. The
admission of the photographs at the sentencing
hearing will not support the grant of a CPC or a
stay of execution.
Fourth, Sixth, and Seventh
Claims
Petitioner alleges as his
fourth, sixth, and seventh claims that (4)
because the State either failed to test the
blood sample drawn from him for its alcohol
content, or failed to share the results of that
test with the defense, the State violated his
rights as defined in Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (6)
capital punishment is excessive; and (7)
electrocution is a cruel and unusual means of
punishment. These claims were all presented in
petitioner's first petition for habeas corpus
relief. They were fully considered and denied by
both the district court and this Court. See 790
F.2d at 1167-70. Petitioner's presentation of
these claims has added nothing to his prior
adjudicated claims. We need not reconsider the
earlier final decision.
Fifth Claim
Petitioner also raises for
the second time in his habeas corpus petition
the claim that the trial court violated the
Eighth Amendment by ruling that testimony
concerning the life sentence received by
petitioner's co-indictee was not relevant
mitigating evidence. Again, we reaffirm the
rejection of this ground for relief for the
reasons set out in our consideration of
petitioner's previous petition. We comment
separately only to note Hitchcock v. Dugger, ---
U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347
(1987), cited by petitioner for the proposition
that a sentencing jury must not be instructed to
limit its consideration of nonstatutory
mitigation circumstances. Hitchcock is not
significantly relevant to this case.
Like Skipper v. South
Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d
1 (1986), and Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978), on which it
is based, Hitchcock is concerned only with the
opportunity for the jury to consider relevant
mitigating evidence. Evidence of the sentence
received by petitioner's partner in crime is not
relevant to the consideration of petitioner's
character, record, or to the offense he
committed. Hitchcock does not change the
applicable law, and this claim does not support
the grant of a CPC or a stay of execution.
Conclusion
This case was brought to us
in the late evening of July 28, only 29 hours
before petitioner was scheduled to be executed.
We have exhaustively reviewed the issues despite
the short time available to us, as we have been
kept fully informed of petitioner's claims from
the time of his habeas corpus filing in the
Louisiana district court. We find that
petitioner has not made a substantial showing of
a valid claim for habeas corpus relief. We
therefore GRANT the right to appeal in forma
pauperis, DENY the certificate of probable cause
to appeal, and DENY the stay of execution.
RIGHT TO APPEAL IN FORMA
PAUPERIS GRANTED.
CERTIFICATE OF PROBABLE CAUSE
TO APPEAL DENIED.
STAY OF EXECUTION DENIED.
*****
CLARK, Chief Judge, with whom
POLITZ and JERRE S. WILLIAMS, Circuit Judges,
join concurring:
I concur without reservation
or exception in the opinion of the court. I
write separately to express a concern that the
continued normal application of ordinary legal
procedures in this type of case produces a
public perception of injustice which carries the
portent to undermine the foundation of our
system of law.
I.
The legislature of the State
of Louisiana has ordained that a crime of the
type committed by John Brogdon may be punished
by executing the person duly proven to have
committed it. The Supreme Courts of both
Louisiana and the United States have decreed
that Louisiana's death penalty statute is a
constitutionally permissible enactment. This
inferior federal court has no control over these
fundamental premises.
II.
In a legally constituted
forum, before a properly selected jury, the
State of Louisiana proved beyond a reasonable
doubt that on October 7, 1981, John Brogdon and
another tortured the life out of eleven-year-old
Barbara Jo Brown. After hearing the proof, which
included John Brogdon's voluntary confession of
guilt, a jury decided that Brogdon was guilty.
Another jury duly decided that he should be
executed.
This court's per curiam
opinion recites an ensuing litany of direct and
collateral review covering over five years. This
is not unusual. It has become common in every
capital case to see the process include
conviction, sentence, appeal, execution date set,
state collateral review, federal collateral
review, stay, stay dissolved, successive state
collateral review and successive federal
collateral review. Indeed, proceedings have
stretched even longer in many such cases.
III.
This court would be blind if
it did not see that counsel for defendant
deliberately withheld their challenges to
Brogdon's sentence until the very last possible
time before each of his three execution dates.
It is the clear perception of this judge that
Brogdon's counsel were bent on opposing his
execution by confusion in addition to testing
the points of law they raised. The delay this
counsel action introduces into the system is
only part of the problem.
IV.
The courts themselves have
been slow to react to their new responsibility
in today's death penalty cases. During the
period when the Supreme Court of the United
States interdicted capital punishment and sorted
out the constitutional propriety of statutes and
trial procedures, the population of death row in
many states multiplied. That dam has broken, and
the rush of cases is upon the courts. Justice
requires that in each instance capital
punishment be imposed with maximum assurance of
scrupulous legality. But, justice equally
demands an assurance that such punishment be
imposed when the minds of men still retain
memory of the crime committed. Otherwise,
capital punishment becomes a sort of second,
albeit legal, crime.
V.
As the per curiam notes, this
court has already moved to develop procedures to
advance the time it gets adequate information on
which to base its decisions in these cases. More
must be done. Courts must develop ways to
effectively complete direct and collateral
review in far less time than now required.
Expediting the review process doubtless will
delay civil proceedings. That price must be paid.
Counsel delays must be eliminated through
sanctions, if not through persuasion. More
counsel must be found who will shoulder the
increased caseload. I write to plead for change
to come and come quickly before respect for the
law erodes beyond repair.
