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Sears v. Chatman

United States District Court, N.D. Georgia, Atlanta Division

June 20, 2017

BRUCE CHATMAN, Warden, Respondent.



         This matter is before the Court on Petitioner Demarcus Ali Sears' ("Petitioner") Motions for Discovery and an Evidentiary Hearing [38], and Respondent Bruce Chatman's ("Respondent") Motion to Exceed the Page Limitation for Respondent's Brief [39].

         I. BACKGROUND

         A. Petitioner's Trial

         On April 11, 1991, a Cobb County grand jury issued an indictment charging Petitioner with one count of kidnapping with bodily injury (Count 1) and one count of armed robbery (Count 2). ([14.1] at 14-16). The case went to trial.

The evidence [presented at trial] showed that on the afternoon of October 7, 1990, Demarcus Sears and Phillip Williams were walking through Atlanta because their car had broken down. Wanting to return home to Ohio, where they lived, they walked to a Waffle House in Smyrna and tried to borrow money from several patrons in the restaurant. They told the patrons that their car had broken down and they needed money to go to Cincinnati. Sears carried a black briefcase that contained brass knuckles, knives and a set of old handcuffs that was missing a key. He opened the briefcase in the restaurant and tried to sell some of the items to a customer. After receiving directions and a couple of dollars for bus fare, Sears and Williams walked to a nearby Kroger food store. A police officer observed them loitering near the Kroger parking lot and briefly spoke with them before he left in response to a radio call. Subsequently, they decided to steal a car so they could drive back to Cincinnati.
They spotted the victim, Gloria Wilbur, when she parked her 1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur returned to her car and placed her groceries in the trunk. Sears approached her, struck her with the brass knuckles and forced her into the car. Williams then got behind the wheel and they drove north on 1-75. Sears told Ms. Wilbur to keep quiet, pulled her into the back seat, and handcuffed her with her hands behind her back. When they stopped for gas and hamburgers, Sears wedged Ms. Wilbur down between the seats and covered her with book bags to prevent discovery. While they were driving through Tennessee, he raped her.
They crossed the border into Kentucky around 1:00 a.m. and stopped the car. Despite her pleas to remain in the car, Sears took the victim into the bushes along 1-75 and stabbed her to death. Ms. Wilbur's body was found, still handcuffed, almost a week later. Her abandoned Buick was discovered in a Cincinnati suburb. Bloodstains in the car matched the victim and pubic hair taken from the back seat matched Sears.

Sears v. State, 493 S.E.2d 180, 182 (Ga. 1997). On September 22, 1993, a jury convicted Petitioner on both counts of the indictment. ([14.2] at 91).

         B. Petitioner's Sentencing

         On September 23, 1993, at approximately 3:56 p.m., the jury began their sentencing deliberations. ([15.22] at 80, 92). The jury was excused at 6:37 p.m. and resumed their deliberations at 9 a.m. the next morning. ([15.22] at 94-95). At 11:20 a.m., the trial court notified the parties of the following note from the jury:

Dear Judge Staley, several jurors are having a problem deciding whether rape and murder can be statutory aggravating circumstances in this case. They believe that since the Defendant was not charged or convicted-and convicted is underlined-of these charges in Georgia, they cannot consider these two crimes as statutory aggravating circumstances even though they may believe beyond a reasonable doubt that these crimes occurred in this case. Please provide the jury with guidance if you can.

([15.23] at 10). Following a colloquy with the parties, the trial court instructed the jury:

Under our law, a sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one or more statutory aggravating circumstances exists; recommends the death sentence in its verdict; and designates in its verdict, in writing, the statutory aggravating circumstances or stances which it finds from the evidence to exist in this case beyond a reasonable doubt.

([15.23] at 17). The trial court also recharged the jury on reasonable doubt and the statutory aggravating circumstances, and instructed the jury to "remember the charge in its entirety and apply that entire charge to the facts and circumstances" of the case. ([15.23] at 16-20). At 11:40 a.m., the jury returned to the jury room to continue their deliberations. ([15.23] at 20).

         At 12:30 p.m., the trial court notified the parties of a second jury note, which stated: "The jury is at an eleven-one deadlock in favor of the death penalty. How do we complete the verdict as to sentencing? Will the jury be polled, and how should the eleven jurors answer if they don't agree with the one juror who has voted for life imprisonment?" ([15.23] at 22). Petitioner argued that the note indicated the jury had reached a verdict of life imprisonment. ([15.23] at 23). The trial court stated it would instruct the jury to continue their deliberations because they had only deliberated for six hours. ([15.23] at 23-24). At 12:34 p.m., the trial court instructed the jury as follows:

You all have only been deliberating on this case for six hours. I would like you all to consider continuing your deliberations and see what you can do with the case. I'm not putting any pressure on you to [do] anything one way or another. Whatever your decision is, that's you[r] decision. But I feel like you need to deliberate on the case longer. I'm going to send you to lunch, and I want you to come back after you've had your lunch hour, and I want you to continue with your deliberations.

([15.23] at 25).

         At approximately 2 p.m., following a lunch break, the jury resumed their deliberations. ([15.23] at 27). At 4:50 p.m., the trial court notified the parties of a third note from the jury, which stated:

Dear Judge Staley, we have reviewed the case from start to finish and we are still deadlocked eleven to one in favor of the death penalty. All twelve jurors agree that there is a hopeless deadlock with no hope of resolution. Deliberations have ceased. What do we do now? All minds are closed.

([15.23] at 27). Petitioner asked the trial court "to accept the jury's non-unanimous verdict and impose a sentence of life." ([15.23] at 28). The trial court denied Petitioner's request, and provided the jury with supplemental instructions approved by the Georgia Supreme Court in Romine v. State, 350 S.E.2d 446 (Ga. 1986):[1]

I've received your note. And in light of your note, I believe it's appropriate to give you some further instructions at this time. You've been deliberating a while, and I deem it proper to advise you further in regards to the desirability of agreement, if possible.
This case has been exhaustively and carefully tried by both sides. It has been submitted to you for a decision and verdict, if possible. While the verdict must be the conclusion of each juror, and not a mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinion of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgments.
Each juror should listen to the arguments of other jurors. If the members of the jury differ in their views of the evidence, or the mitigating or aggravating circumstances, such differences of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion. It's your duty to decide the issues that have been submitted to you, if you can conscientiously do so. Do not hesitate to change an opinion if you become convinced it's wrong. However, you should never surrender honest convictions or opinions in order to be congenial or reach a verdict solely because of the opinions of other jurors.
Members of the jury, the aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the Court.
I am going to send you to the hotel, and you'll have your dinner. And you'll have an evening hour to step away from all this. You've had a long day. Put this aside. Enjoy each other's company.
I'm going to let you think about this instruction, and think about all the instructions of the case in the morning. And I'm going to let you pick up your deliberations then.

([15.23] at 30-31). The jury was then excused for the day. ([15.23] at 32).

         At 9 a.m. the next morning, the jury resumed their deliberations. ([15.24] at 10). At 10:25 a.m., the trial court told the parties:

Been a lot going on this morning. It started off with the foreman asking the deputies and the bailiffs to remove all of the magazines and reading material out of the jury room, and asking them to ask all the jurors to turn over any writing materials and things that weren't related to the case. Also, yesterday, there was an instance where one of the jurors was sitting [in] the jury room with a Sony Walkman on her head. And that was-she was asked to turn that over so she could participate in the deliberations. That happened yesterday.
This morning I have two notes. The first note came when I asked you all to come the first time. It goes as follows: In the jury selection process, each juror was read the charges in this case. Murder was not one of the charges. The reason that the juror who has steadfastly maintained blank position from the outset of deliberations has given for a blank decision is that blank cannot vote on the death penalty because the Defendant was not convicted of murder. And he's got another side. Blanks are to protect the gender of the juror.
Can you provide the jury with a transcript of the questions and answers as to their position on the death penalty? We need to know what questions were asked and how the jurors responded. We would also like for you to provide to the jury a definition of perjury and the penalty for the commission of perjury. Sanford L. Abrams, Foreperson.
Then I got another note. Dear Judge Staley, I am concerned about the actions of the foreman of this jury. This letter is in reference to the foreman's most recent letter to you. Mr. Abrams wrote this letter prior to our jury deliberations today. He informed us that he was submitting the letter to you whether we wanted him to or not. I don't think this type behavior [sic] is appropriate for a foreman. I will not sit on a jury where I am singled out. I am not being treated fairly in this deliberating process. I am also being singled out by the foreman-and, I guess, also-he is overstepping his boundaries as a foreman of the jury. To my understanding, a foreman should be a leader, not a dictator. Please explain the duties and responsibilities of a jury foreman. Should he be able-question a juror's response to the Court during jury selection? Sincerely, Angel Fisher.

([15.24] at 10-12).

         Petitioner asked the trial court to declare a mistrial and sentence him to life in prison. ([15.24] at 19). The trial court denied Petitioner's motion on the grounds that the jury had not deliberated "long enough ... to review all the evidence and discuss with each other all the different issues involved." ([15.24] at 20). The trial court noted that "if somebody was listening to a Sony and reading magazines yesterday, we don't really know how much time they've spent deliberating." ([15.24] at 21). At Petitioner's request, the trial court agreed to instruct the jury that that (i) "[i]n matters of voting, all jurors stand the same, " and (ii) "[i]t is inappropriate for any juror to do anything other than fully participate in jury deliberations." ([15.24] at 18-19, 24). At 11:31 a.m., the trial court instructed the jury:

THE COURT: Mr. Abrams, I have your note from this morning. And, Ms. Fisher, I have yours as well. I perceive from that that there are four issues presented by the-I perceive that there are four issues presented by the two notes that I have. One is-discusses loosely whether the jury may impose the death penalty when the jury has not found the Defendant guilty of murder. That generally placed as one of the issues presented in your note to the Court. Another issue is a request to have the transcript read of the jury voir dire, jury questioning process. Another request is for a definition of perjury. And then from reading the two notes together, a definition of what a foreperson can do.
I'm going to respond to those as follows: Now, as to the very first issue, whether you may impose the death penalty when you have not found the Defendant guilty of murder. First of all, I've given you thorough instructions on this area. It is your responsibility to recall in its entirety the instructions I gave you.
Simply put, you may impose the death penalty if you find any of the four alleged statutory aggravating circumstances, that they exist beyond a reasonable doubt. Then you, the jury, may impose a life sentence or a death sentence, consistent with those instructions that I gave you in their entirety, with the definitions of what constitute the alleged statutory aggravating circumstances, with the definitions of considering aggravating and mitigating evidence, with all those instructions and with the instruction of what beyond a reasonable doubt means.
Okay. On the issue of whether to read the transcript of the jury voir dire, I am not going to do that. Neither am I going to give you a definition of perjury.
As to a definition of what a foreperson can do-and it's a foreman, so I'm just going to say foreman. The foreman is the elected leader of the jury. His responsibilities are to lead the discussions and deliberations of the jury and sign the appropriate forms. The law does not closely define his conduct other than that-other than that. Basically, the foreperson is the elected person responsible for leading the deliberations, leading the discussion. In matters of voting, all jurors stand the same.
A juror is responsible to participate in the jury deliberations. A juror is supposed to listen to his or her fellow jurors. A juror is supposed to vote their ideas and their positions. A juror is supposed to participate. It is inappropriate for any juror to do anything other than fully participate injury deliberations. Mr. Abrams, have you all been deliberating this morning at all?
THE COURT: Okay. With these instructions, I'm going to send you back to further your deliberations. If you have further questions, write me a note.

([15.24] at 29-31).

         At 11:35 a.m., the jury resumed their deliberations. ([15.24] at 31). At approximately 3:08 p.m., after a one-hour lunch break, the jury returned their verdict, finding all of the statutory aggravating circumstances beyond a reasonable doubt and recommending a sentence of death. ([15.24] at 32-36; [14.2] at 102-107). [2]The jury was then polled. Each juror affirmed, in court, that the verdict announced was the verdict they reached, that it was still their verdict, and that it was freely and voluntarily entered. ([15.24] at 37-46). The trial court adopted the jury's recommendation and sentenced Petitioner to death for his kidnapping with bodily injury conviction. ([14.2] at 106-107). Petitioner was sentenced to life imprisonment on the armed robbery charge. ([14.2] at 108).

         C. Petitioner's Motion for a New Trial and his Direct Appeal

         On October 14, 1993, Petitioner filed a motion for a new trial, which he later amended. ([14.2] at 111). Petitioner's motion argued, among other things, that "the jury's death verdict was impermissibly coerced, " and that "there was misconduct on the part of jurors during the trial and sentencing deliberations." ([14.4] at 29, 100). The trial court denied Petitioner's motion on July 18, 1996. ([14.4] at 113). Petitioner appealed and, on December 3, 1997, the Georgia Supreme Court affirmed Petitioner's ...

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