Buddy Earl Justus

b2ux

Banned
Buddy Earl Justus




Classification: Serial killer
Characteristics: Rape
Number of victims: 3
Date of murders: October 1978
Date of arrest: October 11, 1978
Date of birth: December 25, 1952
Victims profile: Ida Mae Moses, 21 (8 1/2 months pregnant) / Rosemary Jackson, 32 / Stephanie Hawkins, 21
Method of murder: Shooting
Location: Georgia/Florida/Virginia, USA
Status: Executed by electrocution in Virginia on December 13, 1990


Man Who Killed 3 Women Dies in Virginia Electric Chair

The New York Times

December 15, 1990

A man convicted of murdering three women was executed in Virginia's electric chair Thursday night, hours after Gov. L. Douglas Wilder refused to grant him clemency.

The condemned man, Buddy Earl Justus, died at 11:06 P.M. at the State Penitentiary.

He was the 11th person to die in the electric chair in Virginia since that state resumed executions in 1982 and the 143d to be executed in the United States since the Supreme Court allowed states to revive the death penalty in 1976.

Mr. Justus was sentenced to die in the electric chair for the rape and slaying of a pregnant nurse in 1978. He had also received the death penalty for killing a woman in Florida and another in Georgia at trials in those states. He had been convicted in Virginia first.

The Governor rejected a request from a lawyer for Mr. Justus that the execution be halted because the condemned man had brain damage, said Laura Dillard, Governor Wilder's spokeswoman.

Ms. Dillard said only that Mr. Wilder had no reason to grant clemency. She provided no further details on his decision.

John Copacino, a Georgetown University law professor who provided legal counsel for Mr. Justus, said tests done in the last few days showed that the 37-year-old convict was born with brain damage that was worsened by head injuries when he was 20.

A petition urging the Governor to halt the execution also said Mr. Justus was a victim of child abuse. A Plea for Forgiveness

Earlier in the day, Mr. Justus asked his victims' families to forgive him and asked for an end to the death penalty.

"I want it to be over with, not for me, but for the victims' families," Mr. Justus said in a morning interview with radio station WFIR in Roanoke. "I'm ready to go to a better place. I want it to be put to rest."

"I've asked for forgiveness to a lot of people," he added, "and I was able to forgive myself."

Mr. Justus criticized the death penalty, calling it a "barbaric" form of punishment.

"Let me be the last person," he said. "There is a better way to deal with crimes than taking people's lives."

After he was strapped in the oak electric chair, Mr. Justus nodded to Sheriff Louis E. Barber of Montgomery County, who investigated the 1978 rape-slaying of Ida Mae Moses, 21 years old, when she was nearly nine months pregnant.

Sheriff Barber said he had been haunted by the crime ever since. "He was afforded a great deal more dignity than Ida Moses," the sheriff said after watching the execution. "At least he had his minister present."

The Rev. Russ Ford told Mr. Justus, "Be strong, you'll move on," and the inmate gave a slight smile.

Mr. Justus was convicted of raping Mrs. Moses then shooting her three times in the head on Oct. 3, 1978. He also received death sentences for murdering Rosemary Jackson, 32, in Gwinnett County, Ga., and Stephanie Hawkins, 21, in Tampa, Fla., later that month.

Buddy Earl Justus

A homicidal drifter and native of Niagara Falls, New York, Justus stands convicted of killing three women in separate states during 1978.

A Williamsburg, Virginia, jury recommended the death penalty on Buddy's conviction for the rape-murder of a pregnant housewife, and he was formally sentenced to death on November 5, 1980. At this writing, Justus is awaiting execution of his sentence.

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
Serial killer lived quiet life in falls, saved sadistic lifestyle for weekends

By David Staba

Niagarafallsreporter.com

August 5, 2003

From Monday through Friday, Buddy Earl Justus was a model employee.

In his off time, he turned into a monster.

The lanky young man with the deep Southern accent always showed up for work on time and did his job changing truck tires for the Tire Shoppe on Military Road without complaint.

"When he was at work, he was a conscientious worker and a gentleman," says Paul Grenga, whose late father, Paolo, owned the Tire Shoppe when Justus was employed there in the late 1970s. "You just couldn't count on him on the weekends."

Justus always showed up on Monday morning, though, so his availability on Saturday and Sunday wasn't an issue.

Until one day in 1978.

"Buddy hadn't shown up for work, and then the state troopers called us," says Grenga.

Nothing could have prepared the Grengas for what the troopers had to tell them.

Justus was in a Virginia jail, charged with the rape and murder of a woman who was 8-1/2 months pregnant.

It got worse. Justus would be charged with the rapes and murders of two other women, one in Georgia and one in Florida, both within a week of the Virginia killing.

It didn't seem possible -- Justus' work ethic and easy-going manner had earned the trust of the Grengas. He let Paul, then a teen-ager, practice driving his car in the parking lot surrounding the Tire Shoppe. When the Grengas moved from the Town of Niagara to Lewiston, Justus helped with the heavy lifting.

"My dad was so shocked," says Grenga, who added that Justus had never done anything to make his mother or two sisters uncomfortable. "I just remember the look on his face. I was stunned -- this was the same guy who let me drive his car, the same guy I remember helping carry our piano out of the house."

Grenga says his father, a prominent figure in local business and political circles who died in April 1999, never mentioned Justus again until 12 years later, when their one-time employee paid for his crimes in Virginia's electric chair.

As an aide to New York State Sen. John Daly, the younger Grenga helped author legislation in 1982 to strengthen the punishment for injuring a pregnant woman.

*****

Justus was born in Niagara Falls on Christmas Day, 1952. Soon after, his family moved south, and he wound up being placed in a Virginia orphanage.

As a young man, he started building a record of petty crimes, including a breaking and entering conviction that landed him in the Montgomery County Jail.

There, he met Charlie Harris, a preacher who who attended to the spiritual needs of the prisoners, or at least made the effort.

"Some listened. Some did not. Buddy listened," Harris told the Roanoke Times shortly before Justus' execution. "(He was) a fine fellow ... he was kind of quiet. He was the kind of fellow I was happy to be associated with."

Justus married, but his wife, Alice, soon left him. He eventually made his way back to Niagara Falls and went to work at the Tire Shoppe.

"He was tall, thin and lanky with a curly shock of blond hair on the top of his forehead, his hair shaved closely on the sides and short all the way around," Grenga says.

Justus never mentioned his troubles with the law to his employers, and in a time before the Internet, "America's Most Wanted" or adequate communication between even neighboring law-enforcement agencies, they would have had no feasible way of finding out.

Grenga says Justus never spoke of Alice, or any other aspect of his personal life, while on the job.

"The only thing he ever talked to me about was his Chrysler Cordoba," Grenga says. "It was his pride and joy. It was a really distinctive car. It was a maroon and silver two-tone car. It was really decked out."

Driving a signature vehicle would eventually prove Justus' undoing.

*****

On Oct. 3, 1978, Justus broke into the double-wide trailer of Ida Mae Moses. The 21-year-old nurse was due to give birth in two weeks, and had already named her unborn son.

Justus robbed her, raped her and shot her three times in the head. Her child also died.

After fleeing the scene, Justus made his way south. Along the way, he picked up Dale Dean Goins, an 18-year-old hitchhiker. The pair kidnapped Rosemary Jackson, a 32-year-old housewife, as she left a grocery store in suburban Atlanta. They forced her to give them what money she had, then raped and murdered her before dumping her body on a rural service road.

In Florida, Justus and Goins grabbed Stephanie Michelle Hawkins, who was getting ready for her son's birthday party that day, from outside a sunglasses stand in a shopping plaza. Hawkins suffered a fate nearly identical to Jackson's, her body found in a similar location.

In Virginia, authorities were looking for Justus based on a description of his car. Police staked out the orphanage in Grundy, Va., where Justus was raised and where two siblings still lived, and arrested him when he came to visit.

Justus admitted robbing and murdering Moses, but denied raping her. The jury didn't believe him, and sentenced him to die in the electric chair.

The Virginia Supreme Court overturned the guilty verdict, due to a flaw in the jury-selection process, but a new jury also condemned Justus to die.

Justus and Goins were each tried in Florida and Georgia. The Florida jury needed only seven minutes to convict Justus.

"It took them 45 minutes to decide on the death penalty," the Florida prosecutor, Phil Van Allen, told the Roanoke Times. "They told me the only reason it took them that long was because they had to pray first."

The Georgia jury was just as decisive, giving Justus his third death sentence.

"I'm a proponent of the death penalty, and I've seen a lot of people deserving of it in my career," said Burt Blannot, the chief investigator in Jackson's murder. "But none have been as deserving as Buddy Justus."

Goins was sentenced to life in prison for his part in the Florida and Georgia murders.

Justus was one of the inmates profiled in a Dec. 26, 1986 story in the Richmond News Leader portraying Christmas on death row.

"If I could say anything to the people out there, it is don't get involved with drugs or alcohol," Justus said. "Even the nicest in society can turn into a monster with that stuff in their system."

*****

While on Virginia's death row, Justus and his attorneys didn't plead innocence during the lengthy appeals process, instead producing a trifecta of excuses for his horrific crimes -- abuse suffered as a child, a head injury at age 20 that caused damage to the frontal lobe of his brain, and habitual alcohol abuse.

Harris, the preacher, talked with Justus on death row and suggested another motivation.

"He said when he got word (Alice) was filing for divorce, he just went crazy," Harris said. "He wrote a lot of poems, all of them about Alice."

After nine appeals failed, Justus' execution was scheduled for Dec. 13, 1990.

There were only four other prisoners left in the old Virginia State Penitentiary -- the 190-year-old facility in Boydton closed the next day, and the rest of the inmates and staff had already moved into new digs.

Opponents of the death penalty staged vigils in five cities around the state that night, and Justus' attorneys appealed one last time to Gov. L. Douglas Wilder, citing Justus' brain damage in requesting clemency and asking that the sentence be commuted to life without parole.

Wilder, a one-time opponent of capital punishment who changed his stance under political pressure while running for governor, refused the request.

Justus, who at one point during his time on death row had asked to have his execution speeded up, then rescinded the request, gave a Roanoke radio station an interview on his last day of life.

"I want it to be over with, not for me, but for the victims' families," Justus said. "I'm ready to go to a better place. I want it to be put to rest."

Justus' attorney told reporters that Ida Mae Moses' sister had written Justus, telling him she forgave him.

Justus ate a last meal of sirloin steak, french fries, tossed salad, strawberry pie and tea. The 246 people electrocuted before him at the old state pen made their final walk accompanied by other death row inmates banging on bars and yelling as the condemned strolled to the death chamber.

Justus walked in silence. Prison officials granted his last request -- to make the trek alone, rather than with prison guards at his side.

He was strapped into the electric chair at 11 p.m. Six minutes and two jolts later, Buddy Earl Justus, 37, was dead.

Montgomery County Sheriff Louis Barber, who had been the chief investigator in Moses' murder, spoke to the press after the execution.

"Buddy Justus died with a great deal more dignity than he afforded Ida Moses. At least he had his minister present and he wasn't degraded and raped and murdered," Barber said.

"The victim's parents and grandparents should have decided his punishment," says Grenga, the father of six and a former Niagara County Assistant District Attorney. "The electric chair was probably too humane."

Niagara Falls Reporter

897 F.2d 709

Buddy Earl Justus, Petitioner-Appellant,
v.
Edward W. Murray, Director, Virginia Department of Corrections,
Respondent-Appellee.

No. 89-4005

Federal Circuits, 4th Cir.

Argued Dec. 5, 1989.
Decided March 2, 1990.
Rehearing and Rehearing In Banc Denied March 20, 1990.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

K.K. HALL, Circuit Judge:

Buddy Earl Justus appeals from the judgment entered in favor of the Virginia Department of Corrections on his petition for a writ of habeas corpus brought under 28 U.S.C. Sec . 2254. Although on different reasoning, we affirm.

* On October 3, 1978, Ida Mae Moses was found murdered in her home in Montgomery County, Virginia. She had been shot twice in the face and once in the back of the head; any one of the wounds would have been fatal. Forensic tests showed that Moses, who was 8 1/2 months pregnant at the time of the murder, had also been raped. Further, it was determined that she had been killed by her own gun, a snub-nosed .22 caliber pistol, which was stolen during the incident. See Justus v. Commonwealth of Virginia, 220 Va. 971, 266 S.E.2d 87, 89 (1980); Justus v. Commonwealth of Virginia, 222 Va. 667, 283 S.E.2d 905, 907 (1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

On October 11, 1978, petitioner was arrested in Grundy, Virginia, pursuant to an arrest warrant for a Georgia murder. He waived his Miranda rights and confessed that he had burglarized the Moses' home and had murdered Moses. However, he denied raping her. In January 1979 petitioner was indicted for capital murder during the commission of a rape, in violation of Va.Code Secs. 18.2-31(5), 18.2-32.

At trial, Justus did not deny committing the murder. Instead, he used his confession of the burglary and murder to bolster the credibility of his denial of the rape. While this strategy conceded the commission of a first degree murder, if successful, it would have defeated the capital murder charge, and with it, the potential for the death penalty.1 The strategy proved unsuccessful and Justus was convicted of capital murder. On a recommendation from the jury, he was sentenced to death.

On appeal, the Supreme Court of Virginia reversed the conviction because of an error in jury selection. Justus, 266 S.E.2d at 90-92. On remand, Justus employed the same trial strategy and again was found guilty of capital murder and sentenced to death. This time, the conviction was upheld on appeal. Justus v. Commonwealth, 222 Va. 667, 283 S.E.2d 905 (1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

Justus sought habeas relief in state court. On February 13-14, 1985, a hearing was held on his petition. In August 1985, the petition was denied in full. The Virginia Supreme Court denied a petition for appeal, as well as a petition for rehearing. Likewise, the U.S. Supreme Court denied certiorari. Justus v. Barss, 479 U.S. 1101 , 107 S.Ct. 1331, 94 L.Ed.2d 182 (1987).

Justus next turned to the federal courts, filing a federal habeas petition in April, 1987. By consent of the parties, the petition was dismissed without prejudice because it contained unexhausted claims. Justus then filed directly in the Virginia Supreme Court another habeas petition which raised the unexhausted claims. That petition was denied by order dated February 22, 1988, on the grounds that all of Justus' claims were procedurally defaulted.

Finally, on May 6, 1988, the instant habeas petition was filed in district court. The petition was referred to a magistrate who, in a lengthy and thorough report, recommended that the petition be dismissed. Both petitioner and the Commonwealth filed objections to the report. The district court denied the objections and by order dated April 12, 1989, the petition was dismissed. This appeal followed.

II

Before this Court, appellant raises seven assignments of error. For purposes of our discussion, these assignments can be considered in three categories, grouped according to the claims' respective procedural postures. We address these categories seriatim.

1.

Two of appellant's claims--one involving the effectiveness of his counsel during the penalty phase of his trial and the other involving the denial of his request for a court-appointed psychiatrist to help him prepare for the penalty phase--were not procedurally defaulted in any manner. The district court rejected these claims on the merits, on the reasoning of the magistrate's report. We also find the magistrate's report persuasive and, accordingly, affirm the district court's disposition of these claims.

2.

One of appellant's claims, concerning the sufficiency of the evidence supporting his death sentence, was not raised on direct appeal. In state habeas, this claim was rejected as procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1978), cert. denied, 419 U.S. 1108 , 95 S.Ct. 780, 42 L.Ed.2d 804 (1979). Likewise, the magistrate below rejected the claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 86-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), because appellant offered no cause to excuse the default.

In his objections to the magistrate's report, appellant for the first time alleged ineffective assistance of counsel as the cause of the default. The district court upheld the magistrate's finding of a procedural bar on the grounds that since the ineffective assistance claim was not alleged in the petition and had not first been presented to and exhausted in the state courts, it could not, under Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), serve in a federal habeas proceeding as cause for a procedural default. Because appellant concedes that this claim was procedurally defaulted, and because it is clear that exhaustion in state court would be futile, this reasoning was entirely correct and we affirm the district court's disposition of this claim. See Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989).

3.

The remainder of appellant's assignments of error stand in a rather peculiar procedural posture.2 First, none of these claims was raised on direct appeal. In state habeas, appellant raised these issues and offered ineffective assistance of counsel as cause for his failure to raise them on direct appeal. The ineffective assistance of counsel claims were rejected by the state habeas trial court and, consequently, the underlying substantive claims were found procedurally defaulted under Slayton.

In his petition for appeal from the state habeas decision, appellant failed to assign as error the ineffective assistance of counsel rulings. Consequently, when he finally presented these claims to the Virginia Supreme Court in this second state habeas petition, they were also found to be defaulted under Slayton. Therefore, appellant has procedurally defaulted on both the substance of his remaining claims as well as the ineffective assistance of counsel claims he offered in state court as cause to excuse the substantive defaults.

Before the district court, appellant raised his procedurally-defaulted substantive arguments and again offered the procedurally-defaulted ineffective assistance of counsel claims as cause. The Commonwealth argued that this double-default, so to speak, left the substantive claims "not reviewable in any manner."

It contended that under Wainwright and Murray, the procedural default of the ineffective assistance of counsel claims must be respected and, consequently, that those claims could not serve as cause to excuse the defaults of the underlying substantive claims. The district court rejected this argument.

The lower court rested its analysis on the Supreme Court's decision in Murray. In Murray, the Court held that before a claim of ineffective assistance of counsel can be used in a federal habeas proceeding as cause to excuse a procedural default, the ineffective assistance of counsel claim must first be presented to and exhausted in the state courts. Id. at 488-89, 106 S.Ct. at 2645-46.

The district court reasoned that even though the instant ineffective assistance claims were procedurally defaulted, they nonetheless were also exhausted and thus, if meritorious, could, under Murray, serve as cause to excuse appellant's substantive defaults.3

The court then disregarded the procedural defaults on collateral appeal and went on to adopt the magistrate's report which found that none of the ineffective assistance of counsel claims had merit. Accordingly, the court held that appellant could not show cause to excuse his procedural defaults on direct appeal and that the underlying substantive arguments were procedurally defaulted. While we agree with the result reached by the lower court, we cannot adopt its reasoning.4

A. It is beyond question that ineffective assistance of counsel claims offered as cause to excuse procedural defaults of other constitutional claims are separate and distinct from those other constitutional claims. Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986). As such, claims of ineffective assistance of counsel, like other constitutional claims, may be precluded from federal habeas review if they have been rejected in state court on the adequate and independent state ground of a violation of a state procedural rule. See Harris v. Reed, 109 S.Ct. at 1042; Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506.

The Supreme Court made clear in Wainwright that absent a showing of cause to excuse a procedural default and a showing that actual prejudice resulted from that default, a state procedural bar to a constitutional claim must be respected by the federal courts. Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. Such is the case with these ineffective assistance claims.

When first presented to the Virginia Supreme Court, appellant's ineffective assistance of counsel claims were unambiguously rejected as defaulted under Slayton. We have previously recognized that such defaults, when made on collateral appeal and relied upon by the Virginia courts to reject constitutional challenges, generally preclude federal habeas review absent a cause-and-prejudice showing. Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir.1986), citing Mason v. Procunier, 748 F.2d 852, 853 (4th Cir.1984). Here, appellant has made no showing of cause to excuse these defaults. Consequently, Wainwright and Bair require that we respect the state procedural bar.5

Therefore, to review the merits of appellant's ineffective assistance of counsel claims as cause for the defaults on direct appeal as the district court did would, contrary to Wainwright and our prior precedents, circumvent the state procedural bar. The principles of finality, comity, and judicial efficiency which underlie the Wainwright rule cannot tolerate such a result. And, notwithstanding the district court's conclusion, the Supreme Court's decision in Murray certainly does not require it.

B.

In Murray, the precise issue before the Court was whether a competent defense counsel's inadvertent failure to raise a substantive claim on appeal could constitute cause excusing the procedural default of the claim. Murray, 477 U.S. at 481-82, 106 S.Ct. at 2642. In answering this question in the negative, the court held that constitutionally ineffective assistance of counsel would provide cause to excuse a procedural default but, like all other constitutional claims, before it can be presented in a federal habeas proceeding, it must first be exhausted in state court. Id. at 489, 106 S.Ct. at 2646.

Contrary to the district court's conclusion, this rather unremarkable holding in no way means that, once exhausted, a procedurally defaulted ineffective assistance of counsel claim may be offered as cause to excuse an earlier procedural default. Such a leap in logic ignores the distinction between exhaustion and procedural default as well as the different goals that both concepts further.

The doctrine of exhaustion and the procedural default rule are two different things. Exhaustion generally requires that before a federal court will review a constitutional claim in habeas, the claim must first be fairly presented to the state court system. The requirement is "principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Id. at 489, 106 S.Ct. at 2646, quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

The procedural default rule requires that if a state court rejects a habeas petitioner's federal constitutional challenge on the adequate and independent state ground that the claim is defaulted under a state procedural rule, a federal habeas court is ordinarily precluded from reviewing that claim unless the petitioner can show cause for the default and prejudice resulting from it. Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. The rule is based on the principles of comity and is intended to promote judicial efficiency and economy. Id. at 88, 97 S.Ct. at 2507.

Thus, these two facets of federal habeas corpus jurisprudence are different mechanisms devised to effectuate different, though related, policy considerations. It follows naturally, then, that just because claims have been exhausted, as appellant's ineffective assistance claims were, it does not necessarily mean that review of those claims will not be precluded by the procedural default rule, as review of appellant's claims is. To conclude otherwise would be in derogation of the concerns which underlie Wainwright, and render meaningless, at least for federal habeas purposes, Virginia's rules of appellate procedure. The Murray Court would certainly not countenance such a result.

The foundation of the Murray decision rests firmly on a sense of respect for the procedural default rule in the appellate context:

A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack.... [Appellate procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions.... These legitimate state interests ... warrant our adherence to the conclusion to which they led the Court in Reed v. Ross [468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ]--that the cause and prejudice test applies to defaults on appeal as to those at trial.

Murray, 477 U.S. at 490-91, 106 S.Ct. at 2446-47 (quotation, citation omitted). Thus, the Murray Court did not hold that to be raised as cause to excuse a prior procedural default a claim of ineffective assistance of counsel must only be exhausted in state court. Rather, Murray stands for the proposition that before an ineffective assistance of counsel claim may be raised as cause in federal habeas, it must first be exhausted in state court and not be procedurally defaulted. Any other reading of Murray eviscerates Wainwright.

C.

We turn to the proper way to analyze the remaining four claims of appellant. As the district court correctly recognized, the substance of these claims was defaulted under Slayton. This procedural bar precludes our review of these claims under Wainwright unless appellant can make the cause and prejudice showing. Appellant has offered as cause four respective claims of ineffective assistance of counsel. As the district court correctly noted, these separate claims were also defaulted under Slayton.

Thus, we cannot review the merit of these claims under Wainwright unless appellant can make another cause and prejudice showing. Appellant has made no showing of cause whatsoever to excuse the default of his ineffective assistance of counsel claims. Therefore, we cannot review the merits of those claims and they cannot serve as cause to excuse the underlying procedural defaults. Furthermore, because these claims were the only offer of cause to excuse the default of the substantive claims, Wainwright also precludes our review of the merits of those issues.

This conclusion, however, does not end our inquiry. In Murray, the Supreme Court made clear that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496, 106 S.Ct. at 2649. Thus, we review the record and remaining arguments to see if any of appellant's assignments of error have probably led to the conviction of an innocent man. We conclude that they have not.

The evidence of appellant's guilt is overwhelming. There simply can be no serious question on this record that appellant did, in fact, commit the crime for which he stands convicted. Further, as the magistrate's report makes clear, besides being procedurally defaulted, his assignments of error are without merit. Consequently, we have no difficulty in upholding appellant's conviction in the face of these four assignments of error.

III

In sum, although on different reasoning, we affirm the dismissal of the petition.

AFFIRMED.

*****

1 On the facts, the case against Justus was very strong. Besides his confession to the police, he had bragged about the murder and rape to a third party, he was found in possession of the murder weapon, and secretion tests indicated that Justus "could not be excluded" as a possible source of the seminal fluid found in decedent's vagina. Justus, 283 S.E.2d at 907

2 Briefly, the substance of these claims is: (1) the trial court erred in excluding potentially mitigating evidence during the penalty phase of appellant's trial; (2) the trial court's instructions in the penalty phase failed to adequately guide appellant's jury in the use of its sentencing discretion; (3) the trial court's instructions during the guilt phase of the trial violated appellant's Sixth Amendment rights; and (4) the jury instructions and verdict form used in the guilt phase of the trial denied appellant his right to a unanimous jury (hereinafter the "substantive" claims)

3 Apparently, the district court reached this conclusion because the Murray Court was silent as to whether the procedural default rule also applied to ineffective assistance of counsel claims offered as cause. As is clear from our discussion below, we interpret the Murray Court's silence on this point to imply nothing more than the Court's assumption that the Wainwright rule applies to all constitutional claims raised in federal habeas

4 As an alternative grounds for our decision, we note that the district court's conclusion that the ineffective assistance of counsel claims were meritless and that, consequently, appellant's underlying substantive arguments were procedurally defaulted, was correct

5 For a similar analysis, see Gilmore v. Armontrout, 861 F.2d 1061, 1064-66 (8th Cir.1988), reh. den. en banc, 867 F.2d 1179, cert. denied, ---U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989)

JUSTUS v. THE STATE

36686.
(247 Ga. 276)
(276 SE2d 242)

DECIDED MARCH 12, 1981

JORDAN, Chief Justice.

Murder, etc. Gwinnett Superior Court. Before Judge Merritt.

Buddy Earl Justus, the appellant, pleaded guilty to the October 7, 1978, murder, kidnapping with bodily injury, armed robbery and rape of Rosemary S. Jackson. Following a hearing, the appellant was sentenced to life imprisonment for the kidnapping with bodily injury, the armed robbery, and the rape, and to death for the murder. The case is presently before this court for mandatory sentence review, and is a companion case to Goins v. State, 245 Ga. 62 (262 SE2d 818) (1980).

Although defense counsel has not enumerated any error in the proceeding below, he has requested this court to independently review the record to determine if error occurred.

The record establishes that, following the appellant's indictment, he informed the district attorney that he wished to plead guilty to all charges. In response the district attorney went to the appellant's jail cell and advised the appellant of his right to a trial by jury and his right to either a retained or appointed attorney. The district attorney further advised the appellant at this time that the state would seek the death penalty, and that said penalty would probably be imposed.

On May 23, 1980, the appellant was given a hearing in the Gwinnett Superior Court at which time the trial judge took the following actions.

First, the trial judge appointed an attorney who had been practicing law for fourteen to fifteen years and had handled over seventeen capital cases to represent the appellant. Second, he apprised the appellant of all of his constitutional rights, and told him that if the circumstances of the case otherwise warranted it, he had no conscientious, moral or religious objections to a sentence of death.

(The appellant answered that he understood this and that he understood the rights explained to him.) Third, the trial judge made the following findings of fact: the appellant was twenty-eight years old and had attended school through the tenth grade; he had been tried in a court of law three times prior to the present proceedings (he had one retained and two appointed attorneys); and, he understood the nature of the present proceeding. Finally, the trial judge set down June 13, 1980, ten days hence, as plea day.

During the ten day interim prior to plea day, the district attorney turned over to the appellant's appointed attorney, in addition to his entire file, the list of witnesses, the statement which the appellant had made to the Gwinnett County Police, a copy of the appellant's FBI rap sheet, a mental evaluation of the appellant, and the State Crime Lab Report.

On June 13, 1980, the plea hearing was held before the Gwinnett Superior Court. During said hearing, the appellant, with his attorney present, was extensively questioned by both the district attorney and the trial judge as to whether he understood each and every right and as to whether he was under the influence of any drugs, medicines or alcohol. Further, the trial judge explained to the appellant the alleged aggravating circumstances.

As the result of additional questioning, the trial judge found that the appellant had consulted with his attorney four times, and that his attorney had given the appellant all the time he needed or wanted to talk with him and discuss his situation (the appellant had had the attorney's phone number and could have called him at any time to discuss the case).

The trial judge also found that the appellant understood that he was pleading guilty without any recommendation on behalf of the state, and that the appellant was pleading guilty freely and voluntarily without promise of reward or threat of harm.

Finally, the trial judge found that the appellant was factually guilty and that he persisted in his plea of guilty despite his attorney's determination that the appellant had a better chance to avoid the death penalty with a jury than with the court (the attorney admitted, however, that despite discovery and consultation with his client, there were no material defenses to the charge).

The record establishes that the appellant was given a psychological evaluation in Virginia and, upon motion by defense counsel, in Georgia. These evaluations affirmatively show that the appellant was sane at the time he committed the crimes and could actively participate in his defense and was aware of the nature of the proceedings against him.

Upon independent review of the record, we find that the plea was properly accepted by the trial court and that no error occurred. See Fair v. State, 245 Ga. 868 (268 SE2d 316) (1980); Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975); Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975); Hooks v. State, 233 Ga. 149 (210 SE2d 668) (1974).

Sentence Review

The death sentence imposed in this case must be reviewed by this court under the standards set forth in Code Ann. 27-2537 (c) (1-3). Thus, we must determine whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; whether the evidence supports the trier of fact's finding of the statutory aggravating circumstances; and, whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.

We find that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. The trial judge found beyond a reasonable doubt the existence of the following statutory aggravating circumstances: (1) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the armed robbery of Rosemary Jackson, Code Ann. 27-2534.1 (b) (2); (2) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the kidnapping of Rosemary Jackson with bodily injury, Code Ann. 27-2534.1 (b) (2); (3) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the rape of Rosemary Jackson, Code Ann. 27-2534.1 (b) (2); and (4) the offense of murder was outrageously or wantonly vile, horrible and inhuman in that it involved torture, depravity of mind and an aggravated battery to the victim, Code Ann. 27-2534.1 (b) (7).

From the evidence in this case, the trial court was authorized to find that the appellant and Dean Goins, a co-defendant, came to Georgia from Florida and decided to steal a van and rob someone. They pulled into a shopping center and sat there drinking beer until Rosemary S. Jackson, who was driving the type of van they desired, parked her van in the shopping center parking lot.

They abducted the victim at gunpoint and took her to Crack Road, a dirt access-road. The appellant drove the victim's van with the victim inside, and Goins drove the car that they had driven up from Florida.

On the way to the execution site the appellant stopped at a truck stop and made the victim purchase a C. B. unit, and pay for it with a credit card. The two proceeded to Crack Road where the appellant raped, stabbed and shot Mrs. Jackson. The co-defendant, Goins, was present at the scene but did not participate in the rape or murder. The New York tag was removed from the car and placed on the van. The car was then left near the body, and the appellant and his co-defendant left in the van ultimately being arrested in Virginia.

The state presented evidence that the chief jailer had observed the appellant in jail and that the appellant was normal, and was totally aware of his surroundings, capable of taking care of himself and coordinating his daily activities, conversing with his cell mates and the jail staff.

Forensic evidence established that the victim had been raped and had suffered three stab wounds to her body (one stab wound went through the right breast into the right lung through the diaphragm and down into the liver, and two wounds went into the back, one to the lower part of the shoulder blade, and the other one to the top of the right shoulder). The stab wounds occurred prior to death and caused considerable pain. The victim was then shot execution style with a single gunshot wound to the base of the skull just above the hairline. The appellant's fingerprints were located in the abandoned automobile.

The manager of the grocery store at the shopping center where the abduction took place became suspicious of the two men as they sat in the parking lot, and as he went to lunch, he wrote down the New York license plate number. The appellant was identified as the man coming in with the victim to the Atlanta Gateway Truck Stop where the C. B. radio was purchased.

In that the sentence of death in this case rests partially upon a finding of Code Ann. 27-2534.1 (b) (7), it must be reviewed in light of the United States Supreme Court's decision in Godfrey v. Georgia, 446 U. S. 420 (100 SC 1759, 64 LE2d 398) (1980), as construed by this court in Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980).

"Torture" as the term is used in the statute occurs when the victim is subjected to serious physical abuse prior to death. Hance v. State, supra. Serious sexual abuse may be found to constitute serious physical abuse. Hance v. State, supra.

Rosemary S. Jackson was not killed instantaneously nor was she the victim of a domestic murder. She gave the appellant no reason whatsoever to assault her and was in no manner threatening. The appellant fled and attempted in every manner to hide his crime. See Godfrey v. Georgia, supra. Ms. Jackson was abducted and sexually assaulted prior to death. Therefore, 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. Green v. State, 246 Ga. 598 (272 SE2d 475) (1980). Under the facts of this case, we find that murder was of the type universally condemned by civilized society as wantonly vile, horrible or inhuman, as it involved depravity of mind of the defendant and torture to the victim as set forth above.

The evidence supports a finding of the four aggravating circumstances by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The appellant's co-defendant, Dean Goins, was sentenced to life imprisonment. See Goins v. State, supra. The question is thus presented whether, in light of the lesser sentence imposed on the co-defendant, appellant's sentence is disproportionate.

Each case must be evaluated on its unique factual circumstances, as there is no simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser penalty. Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); McClesky v. State, 245 Ga. 108 (263 SE2d 146) (1980). We find material distinctions between appellant's case and the case of the co-defendant. First, the appellant was the actual perpetrator of the murder and rape of the victim, whereas the co-defendant was not, and in fact remained in the car while the killing took place. Second there was evidence that the appellant was the prime mover and that to some extent Goins was coerced into assisting the appellant in the commission of the crimes. Juries in similar circumstances have sentenced "triggermen" to death while the same penalty has not been imposed on co-defendants. These cases have been affirmed by this court. McClesky v. State, supra; Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976); Ross v. State, 233 Ga. 361 (211 SE2d 356) (1974).

We find that the appellant's sentence to death is neither excessive nor disproportionate to the penalty imposed in the case of his co-defendant. 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 the affirmance of the death penalty.

This was the brutal rape and murder of an armed robbery victim committed for the sole purpose of financial gain and sexual gratification. The 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.

APPENDIX.

Kramer v. State, 230 Ga. 855 (199 SE2d 805) (1973); Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975); Davis v. State, 236 Ga. 804 (225 SE2d 241) (1976); Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976); Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Corn v. State, 240 Ga. 130 (240 SE2d 694) (1977); Spraggins v. State, 240 Ga. 759 (243 SE2d 20) (1978); Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1978); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978); Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978); Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); 246 Ga. 261 (271 SE2d 352) (1980); Tucker v. State, 244 Ga. 721 (261 SE2d 635) (1979); Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979); Tucker v. State, 245 Ga. 68 (263 SE2d 109) (1980); Brooks v. State, 244 Ga. 574 (261 SE2d 379) (1979); 246 Ga. 262 (271 SE2d 272) (1980).






Classification: Serial killer
Characteristics: Rape
Number of victims: 3
Date of murders: October 1978
Date of arrest: October 11, 1978
Date of birth: December 25, 1952
Victims profile: Ida Mae Moses, 21 (8 1/2 months pregnant) / Rosemary Jackson, 32 / Stephanie Hawkins, 21
Method of murder: Shooting
Location: Georgia/Florida/Virginia, USA
Status: Executed by electrocution in Virginia on December 13, 1990


Man Who Killed 3 Women Dies in Virginia Electric Chair

The New York Times

December 15, 1990

A man convicted of murdering three women was executed in Virginia's electric chair Thursday night, hours after Gov. L. Douglas Wilder refused to grant him clemency.

The condemned man, Buddy Earl Justus, died at 11:06 P.M. at the State Penitentiary.

He was the 11th person to die in the electric chair in Virginia since that state resumed executions in 1982 and the 143d to be executed in the United States since the Supreme Court allowed states to revive the death penalty in 1976.

Mr. Justus was sentenced to die in the electric chair for the rape and slaying of a pregnant nurse in 1978. He had also received the death penalty for killing a woman in Florida and another in Georgia at trials in those states. He had been convicted in Virginia first.

The Governor rejected a request from a lawyer for Mr. Justus that the execution be halted because the condemned man had brain damage, said Laura Dillard, Governor Wilder's spokeswoman.

Ms. Dillard said only that Mr. Wilder had no reason to grant clemency. She provided no further details on his decision.

John Copacino, a Georgetown University law professor who provided legal counsel for Mr. Justus, said tests done in the last few days showed that the 37-year-old convict was born with brain damage that was worsened by head injuries when he was 20.

A petition urging the Governor to halt the execution also said Mr. Justus was a victim of child abuse. A Plea for Forgiveness

Earlier in the day, Mr. Justus asked his victims' families to forgive him and asked for an end to the death penalty.

"I want it to be over with, not for me, but for the victims' families," Mr. Justus said in a morning interview with radio station WFIR in Roanoke. "I'm ready to go to a better place. I want it to be put to rest."

"I've asked for forgiveness to a lot of people," he added, "and I was able to forgive myself."

Mr. Justus criticized the death penalty, calling it a "barbaric" form of punishment.

"Let me be the last person," he said. "There is a better way to deal with crimes than taking people's lives."

After he was strapped in the oak electric chair, Mr. Justus nodded to Sheriff Louis E. Barber of Montgomery County, who investigated the 1978 rape-slaying of Ida Mae Moses, 21 years old, when she was nearly nine months pregnant.

Sheriff Barber said he had been haunted by the crime ever since. "He was afforded a great deal more dignity than Ida Moses," the sheriff said after watching the execution. "At least he had his minister present."

The Rev. Russ Ford told Mr. Justus, "Be strong, you'll move on," and the inmate gave a slight smile.

Mr. Justus was convicted of raping Mrs. Moses then shooting her three times in the head on Oct. 3, 1978. He also received death sentences for murdering Rosemary Jackson, 32, in Gwinnett County, Ga., and Stephanie Hawkins, 21, in Tampa, Fla., later that month.

Buddy Earl Justus

A homicidal drifter and native of Niagara Falls, New York, Justus stands convicted of killing three women in separate states during 1978.

A Williamsburg, Virginia, jury recommended the death penalty on Buddy's conviction for the rape-murder of a pregnant housewife, and he was formally sentenced to death on November 5, 1980. At this writing, Justus is awaiting execution of his sentence.

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
Serial killer lived quiet life in falls, saved sadistic lifestyle for weekends

By David Staba

Niagarafallsreporter.com

August 5, 2003

From Monday through Friday, Buddy Earl Justus was a model employee.

In his off time, he turned into a monster.

The lanky young man with the deep Southern accent always showed up for work on time and did his job changing truck tires for the Tire Shoppe on Military Road without complaint.

"When he was at work, he was a conscientious worker and a gentleman," says Paul Grenga, whose late father, Paolo, owned the Tire Shoppe when Justus was employed there in the late 1970s. "You just couldn't count on him on the weekends."

Justus always showed up on Monday morning, though, so his availability on Saturday and Sunday wasn't an issue.

Until one day in 1978.

"Buddy hadn't shown up for work, and then the state troopers called us," says Grenga.

Nothing could have prepared the Grengas for what the troopers had to tell them.

Justus was in a Virginia jail, charged with the rape and murder of a woman who was 8-1/2 months pregnant.

It got worse. Justus would be charged with the rapes and murders of two other women, one in Georgia and one in Florida, both within a week of the Virginia killing.

It didn't seem possible -- Justus' work ethic and easy-going manner had earned the trust of the Grengas. He let Paul, then a teen-ager, practice driving his car in the parking lot surrounding the Tire Shoppe. When the Grengas moved from the Town of Niagara to Lewiston, Justus helped with the heavy lifting.

"My dad was so shocked," says Grenga, who added that Justus had never done anything to make his mother or two sisters uncomfortable. "I just remember the look on his face. I was stunned -- this was the same guy who let me drive his car, the same guy I remember helping carry our piano out of the house."

Grenga says his father, a prominent figure in local business and political circles who died in April 1999, never mentioned Justus again until 12 years later, when their one-time employee paid for his crimes in Virginia's electric chair.

As an aide to New York State Sen. John Daly, the younger Grenga helped author legislation in 1982 to strengthen the punishment for injuring a pregnant woman.

*****

Justus was born in Niagara Falls on Christmas Day, 1952. Soon after, his family moved south, and he wound up being placed in a Virginia orphanage.

As a young man, he started building a record of petty crimes, including a breaking and entering conviction that landed him in the Montgomery County Jail.

There, he met Charlie Harris, a preacher who who attended to the spiritual needs of the prisoners, or at least made the effort.

"Some listened. Some did not. Buddy listened," Harris told the Roanoke Times shortly before Justus' execution. "(He was) a fine fellow ... he was kind of quiet. He was the kind of fellow I was happy to be associated with."

Justus married, but his wife, Alice, soon left him. He eventually made his way back to Niagara Falls and went to work at the Tire Shoppe.

"He was tall, thin and lanky with a curly shock of blond hair on the top of his forehead, his hair shaved closely on the sides and short all the way around," Grenga says.

Justus never mentioned his troubles with the law to his employers, and in a time before the Internet, "America's Most Wanted" or adequate communication between even neighboring law-enforcement agencies, they would have had no feasible way of finding out.

Grenga says Justus never spoke of Alice, or any other aspect of his personal life, while on the job.

"The only thing he ever talked to me about was his Chrysler Cordoba," Grenga says. "It was his pride and joy. It was a really distinctive car. It was a maroon and silver two-tone car. It was really decked out."

Driving a signature vehicle would eventually prove Justus' undoing.

*****

On Oct. 3, 1978, Justus broke into the double-wide trailer of Ida Mae Moses. The 21-year-old nurse was due to give birth in two weeks, and had already named her unborn son.

Justus robbed her, raped her and shot her three times in the head. Her child also died.

After fleeing the scene, Justus made his way south. Along the way, he picked up Dale Dean Goins, an 18-year-old hitchhiker. The pair kidnapped Rosemary Jackson, a 32-year-old housewife, as she left a grocery store in suburban Atlanta. They forced her to give them what money she had, then raped and murdered her before dumping her body on a rural service road.

In Florida, Justus and Goins grabbed Stephanie Michelle Hawkins, who was getting ready for her son's birthday party that day, from outside a sunglasses stand in a shopping plaza. Hawkins suffered a fate nearly identical to Jackson's, her body found in a similar location.

In Virginia, authorities were looking for Justus based on a description of his car. Police staked out the orphanage in Grundy, Va., where Justus was raised and where two siblings still lived, and arrested him when he came to visit.

Justus admitted robbing and murdering Moses, but denied raping her. The jury didn't believe him, and sentenced him to die in the electric chair.

The Virginia Supreme Court overturned the guilty verdict, due to a flaw in the jury-selection process, but a new jury also condemned Justus to die.

Justus and Goins were each tried in Florida and Georgia. The Florida jury needed only seven minutes to convict Justus.

"It took them 45 minutes to decide on the death penalty," the Florida prosecutor, Phil Van Allen, told the Roanoke Times. "They told me the only reason it took them that long was because they had to pray first."

The Georgia jury was just as decisive, giving Justus his third death sentence.

"I'm a proponent of the death penalty, and I've seen a lot of people deserving of it in my career," said Burt Blannot, the chief investigator in Jackson's murder. "But none have been as deserving as Buddy Justus."

Goins was sentenced to life in prison for his part in the Florida and Georgia murders.

Justus was one of the inmates profiled in a Dec. 26, 1986 story in the Richmond News Leader portraying Christmas on death row.

"If I could say anything to the people out there, it is don't get involved with drugs or alcohol," Justus said. "Even the nicest in society can turn into a monster with that stuff in their system."

*****

While on Virginia's death row, Justus and his attorneys didn't plead innocence during the lengthy appeals process, instead producing a trifecta of excuses for his horrific crimes -- abuse suffered as a child, a head injury at age 20 that caused damage to the frontal lobe of his brain, and habitual alcohol abuse.

Harris, the preacher, talked with Justus on death row and suggested another motivation.

"He said when he got word (Alice) was filing for divorce, he just went crazy," Harris said. "He wrote a lot of poems, all of them about Alice."

After nine appeals failed, Justus' execution was scheduled for Dec. 13, 1990.

There were only four other prisoners left in the old Virginia State Penitentiary -- the 190-year-old facility in Boydton closed the next day, and the rest of the inmates and staff had already moved into new digs.

Opponents of the death penalty staged vigils in five cities around the state that night, and Justus' attorneys appealed one last time to Gov. L. Douglas Wilder, citing Justus' brain damage in requesting clemency and asking that the sentence be commuted to life without parole.

Wilder, a one-time opponent of capital punishment who changed his stance under political pressure while running for governor, refused the request.

Justus, who at one point during his time on death row had asked to have his execution speeded up, then rescinded the request, gave a Roanoke radio station an interview on his last day of life.

"I want it to be over with, not for me, but for the victims' families," Justus said. "I'm ready to go to a better place. I want it to be put to rest."

Justus' attorney told reporters that Ida Mae Moses' sister had written Justus, telling him she forgave him.

Justus ate a last meal of sirloin steak, french fries, tossed salad, strawberry pie and tea. The 246 people electrocuted before him at the old state pen made their final walk accompanied by other death row inmates banging on bars and yelling as the condemned strolled to the death chamber.

Justus walked in silence. Prison officials granted his last request -- to make the trek alone, rather than with prison guards at his side.

He was strapped into the electric chair at 11 p.m. Six minutes and two jolts later, Buddy Earl Justus, 37, was dead.

Montgomery County Sheriff Louis Barber, who had been the chief investigator in Moses' murder, spoke to the press after the execution.

"Buddy Justus died with a great deal more dignity than he afforded Ida Moses. At least he had his minister present and he wasn't degraded and raped and murdered," Barber said.

"The victim's parents and grandparents should have decided his punishment," says Grenga, the father of six and a former Niagara County Assistant District Attorney. "The electric chair was probably too humane."

Niagara Falls Reporter

897 F.2d 709

Buddy Earl Justus, Petitioner-Appellant,
v.
Edward W. Murray, Director, Virginia Department of Corrections,
Respondent-Appellee.

No. 89-4005

Federal Circuits, 4th Cir.

Argued Dec. 5, 1989.
Decided March 2, 1990.
Rehearing and Rehearing In Banc Denied March 20, 1990.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

K.K. HALL, Circuit Judge:

Buddy Earl Justus appeals from the judgment entered in favor of the Virginia Department of Corrections on his petition for a writ of habeas corpus brought under 28 U.S.C. Sec . 2254. Although on different reasoning, we affirm.

* On October 3, 1978, Ida Mae Moses was found murdered in her home in Montgomery County, Virginia. She had been shot twice in the face and once in the back of the head; any one of the wounds would have been fatal. Forensic tests showed that Moses, who was 8 1/2 months pregnant at the time of the murder, had also been raped. Further, it was determined that she had been killed by her own gun, a snub-nosed .22 caliber pistol, which was stolen during the incident. See Justus v. Commonwealth of Virginia, 220 Va. 971, 266 S.E.2d 87, 89 (1980); Justus v. Commonwealth of Virginia, 222 Va. 667, 283 S.E.2d 905, 907 (1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

On October 11, 1978, petitioner was arrested in Grundy, Virginia, pursuant to an arrest warrant for a Georgia murder. He waived his Miranda rights and confessed that he had burglarized the Moses' home and had murdered Moses. However, he denied raping her. In January 1979 petitioner was indicted for capital murder during the commission of a rape, in violation of Va.Code Secs. 18.2-31(5), 18.2-32.

At trial, Justus did not deny committing the murder. Instead, he used his confession of the burglary and murder to bolster the credibility of his denial of the rape. While this strategy conceded the commission of a first degree murder, if successful, it would have defeated the capital murder charge, and with it, the potential for the death penalty.1 The strategy proved unsuccessful and Justus was convicted of capital murder. On a recommendation from the jury, he was sentenced to death.

On appeal, the Supreme Court of Virginia reversed the conviction because of an error in jury selection. Justus, 266 S.E.2d at 90-92. On remand, Justus employed the same trial strategy and again was found guilty of capital murder and sentenced to death. This time, the conviction was upheld on appeal. Justus v. Commonwealth, 222 Va. 667, 283 S.E.2d 905 (1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

Justus sought habeas relief in state court. On February 13-14, 1985, a hearing was held on his petition. In August 1985, the petition was denied in full. The Virginia Supreme Court denied a petition for appeal, as well as a petition for rehearing. Likewise, the U.S. Supreme Court denied certiorari. Justus v. Barss, 479 U.S. 1101 , 107 S.Ct. 1331, 94 L.Ed.2d 182 (1987).

Justus next turned to the federal courts, filing a federal habeas petition in April, 1987. By consent of the parties, the petition was dismissed without prejudice because it contained unexhausted claims. Justus then filed directly in the Virginia Supreme Court another habeas petition which raised the unexhausted claims. That petition was denied by order dated February 22, 1988, on the grounds that all of Justus' claims were procedurally defaulted.

Finally, on May 6, 1988, the instant habeas petition was filed in district court. The petition was referred to a magistrate who, in a lengthy and thorough report, recommended that the petition be dismissed. Both petitioner and the Commonwealth filed objections to the report. The district court denied the objections and by order dated April 12, 1989, the petition was dismissed. This appeal followed.

II

Before this Court, appellant raises seven assignments of error. For purposes of our discussion, these assignments can be considered in three categories, grouped according to the claims' respective procedural postures. We address these categories seriatim.

1.

Two of appellant's claims--one involving the effectiveness of his counsel during the penalty phase of his trial and the other involving the denial of his request for a court-appointed psychiatrist to help him prepare for the penalty phase--were not procedurally defaulted in any manner. The district court rejected these claims on the merits, on the reasoning of the magistrate's report. We also find the magistrate's report persuasive and, accordingly, affirm the district court's disposition of these claims.

2.

One of appellant's claims, concerning the sufficiency of the evidence supporting his death sentence, was not raised on direct appeal. In state habeas, this claim was rejected as procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1978), cert. denied, 419 U.S. 1108 , 95 S.Ct. 780, 42 L.Ed.2d 804 (1979). Likewise, the magistrate below rejected the claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 86-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), because appellant offered no cause to excuse the default.

In his objections to the magistrate's report, appellant for the first time alleged ineffective assistance of counsel as the cause of the default. The district court upheld the magistrate's finding of a procedural bar on the grounds that since the ineffective assistance claim was not alleged in the petition and had not first been presented to and exhausted in the state courts, it could not, under Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), serve in a federal habeas proceeding as cause for a procedural default. Because appellant concedes that this claim was procedurally defaulted, and because it is clear that exhaustion in state court would be futile, this reasoning was entirely correct and we affirm the district court's disposition of this claim. See Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989).

3.

The remainder of appellant's assignments of error stand in a rather peculiar procedural posture.2 First, none of these claims was raised on direct appeal. In state habeas, appellant raised these issues and offered ineffective assistance of counsel as cause for his failure to raise them on direct appeal. The ineffective assistance of counsel claims were rejected by the state habeas trial court and, consequently, the underlying substantive claims were found procedurally defaulted under Slayton.

In his petition for appeal from the state habeas decision, appellant failed to assign as error the ineffective assistance of counsel rulings. Consequently, when he finally presented these claims to the Virginia Supreme Court in this second state habeas petition, they were also found to be defaulted under Slayton. Therefore, appellant has procedurally defaulted on both the substance of his remaining claims as well as the ineffective assistance of counsel claims he offered in state court as cause to excuse the substantive defaults.

Before the district court, appellant raised his procedurally-defaulted substantive arguments and again offered the procedurally-defaulted ineffective assistance of counsel claims as cause. The Commonwealth argued that this double-default, so to speak, left the substantive claims "not reviewable in any manner."

It contended that under Wainwright and Murray, the procedural default of the ineffective assistance of counsel claims must be respected and, consequently, that those claims could not serve as cause to excuse the defaults of the underlying substantive claims. The district court rejected this argument.

The lower court rested its analysis on the Supreme Court's decision in Murray. In Murray, the Court held that before a claim of ineffective assistance of counsel can be used in a federal habeas proceeding as cause to excuse a procedural default, the ineffective assistance of counsel claim must first be presented to and exhausted in the state courts. Id. at 488-89, 106 S.Ct. at 2645-46.

The district court reasoned that even though the instant ineffective assistance claims were procedurally defaulted, they nonetheless were also exhausted and thus, if meritorious, could, under Murray, serve as cause to excuse appellant's substantive defaults.3

The court then disregarded the procedural defaults on collateral appeal and went on to adopt the magistrate's report which found that none of the ineffective assistance of counsel claims had merit. Accordingly, the court held that appellant could not show cause to excuse his procedural defaults on direct appeal and that the underlying substantive arguments were procedurally defaulted. While we agree with the result reached by the lower court, we cannot adopt its reasoning.4

A. It is beyond question that ineffective assistance of counsel claims offered as cause to excuse procedural defaults of other constitutional claims are separate and distinct from those other constitutional claims. Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986). As such, claims of ineffective assistance of counsel, like other constitutional claims, may be precluded from federal habeas review if they have been rejected in state court on the adequate and independent state ground of a violation of a state procedural rule. See Harris v. Reed, 109 S.Ct. at 1042; Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506.

The Supreme Court made clear in Wainwright that absent a showing of cause to excuse a procedural default and a showing that actual prejudice resulted from that default, a state procedural bar to a constitutional claim must be respected by the federal courts. Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. Such is the case with these ineffective assistance claims.

When first presented to the Virginia Supreme Court, appellant's ineffective assistance of counsel claims were unambiguously rejected as defaulted under Slayton. We have previously recognized that such defaults, when made on collateral appeal and relied upon by the Virginia courts to reject constitutional challenges, generally preclude federal habeas review absent a cause-and-prejudice showing. Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir.1986), citing Mason v. Procunier, 748 F.2d 852, 853 (4th Cir.1984). Here, appellant has made no showing of cause to excuse these defaults. Consequently, Wainwright and Bair require that we respect the state procedural bar.5

Therefore, to review the merits of appellant's ineffective assistance of counsel claims as cause for the defaults on direct appeal as the district court did would, contrary to Wainwright and our prior precedents, circumvent the state procedural bar. The principles of finality, comity, and judicial efficiency which underlie the Wainwright rule cannot tolerate such a result. And, notwithstanding the district court's conclusion, the Supreme Court's decision in Murray certainly does not require it.

B.

In Murray, the precise issue before the Court was whether a competent defense counsel's inadvertent failure to raise a substantive claim on appeal could constitute cause excusing the procedural default of the claim. Murray, 477 U.S. at 481-82, 106 S.Ct. at 2642. In answering this question in the negative, the court held that constitutionally ineffective assistance of counsel would provide cause to excuse a procedural default but, like all other constitutional claims, before it can be presented in a federal habeas proceeding, it must first be exhausted in state court. Id. at 489, 106 S.Ct. at 2646.

Contrary to the district court's conclusion, this rather unremarkable holding in no way means that, once exhausted, a procedurally defaulted ineffective assistance of counsel claim may be offered as cause to excuse an earlier procedural default. Such a leap in logic ignores the distinction between exhaustion and procedural default as well as the different goals that both concepts further.

The doctrine of exhaustion and the procedural default rule are two different things. Exhaustion generally requires that before a federal court will review a constitutional claim in habeas, the claim must first be fairly presented to the state court system. The requirement is "principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Id. at 489, 106 S.Ct. at 2646, quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

The procedural default rule requires that if a state court rejects a habeas petitioner's federal constitutional challenge on the adequate and independent state ground that the claim is defaulted under a state procedural rule, a federal habeas court is ordinarily precluded from reviewing that claim unless the petitioner can show cause for the default and prejudice resulting from it. Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. The rule is based on the principles of comity and is intended to promote judicial efficiency and economy. Id. at 88, 97 S.Ct. at 2507.

Thus, these two facets of federal habeas corpus jurisprudence are different mechanisms devised to effectuate different, though related, policy considerations. It follows naturally, then, that just because claims have been exhausted, as appellant's ineffective assistance claims were, it does not necessarily mean that review of those claims will not be precluded by the procedural default rule, as review of appellant's claims is. To conclude otherwise would be in derogation of the concerns which underlie Wainwright, and render meaningless, at least for federal habeas purposes, Virginia's rules of appellate procedure. The Murray Court would certainly not countenance such a result.

The foundation of the Murray decision rests firmly on a sense of respect for the procedural default rule in the appellate context:

A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack.... [Appellate procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions.... These legitimate state interests ... warrant our adherence to the conclusion to which they led the Court in Reed v. Ross [468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ]--that the cause and prejudice test applies to defaults on appeal as to those at trial.

Murray, 477 U.S. at 490-91, 106 S.Ct. at 2446-47 (quotation, citation omitted). Thus, the Murray Court did not hold that to be raised as cause to excuse a prior procedural default a claim of ineffective assistance of counsel must only be exhausted in state court. Rather, Murray stands for the proposition that before an ineffective assistance of counsel claim may be raised as cause in federal habeas, it must first be exhausted in state court and not be procedurally defaulted. Any other reading of Murray eviscerates Wainwright.

C.

We turn to the proper way to analyze the remaining four claims of appellant. As the district court correctly recognized, the substance of these claims was defaulted under Slayton. This procedural bar precludes our review of these claims under Wainwright unless appellant can make the cause and prejudice showing. Appellant has offered as cause four respective claims of ineffective assistance of counsel. As the district court correctly noted, these separate claims were also defaulted under Slayton.

Thus, we cannot review the merit of these claims under Wainwright unless appellant can make another cause and prejudice showing. Appellant has made no showing of cause whatsoever to excuse the default of his ineffective assistance of counsel claims. Therefore, we cannot review the merits of those claims and they cannot serve as cause to excuse the underlying procedural defaults. Furthermore, because these claims were the only offer of cause to excuse the default of the substantive claims, Wainwright also precludes our review of the merits of those issues.

This conclusion, however, does not end our inquiry. In Murray, the Supreme Court made clear that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496, 106 S.Ct. at 2649. Thus, we review the record and remaining arguments to see if any of appellant's assignments of error have probably led to the conviction of an innocent man. We conclude that they have not.

The evidence of appellant's guilt is overwhelming. There simply can be no serious question on this record that appellant did, in fact, commit the crime for which he stands convicted. Further, as the magistrate's report makes clear, besides being procedurally defaulted, his assignments of error are without merit. Consequently, we have no difficulty in upholding appellant's conviction in the face of these four assignments of error.

III

In sum, although on different reasoning, we affirm the dismissal of the petition.

AFFIRMED.

*****

1 On the facts, the case against Justus was very strong. Besides his confession to the police, he had bragged about the murder and rape to a third party, he was found in possession of the murder weapon, and secretion tests indicated that Justus "could not be excluded" as a possible source of the seminal fluid found in decedent's vagina. Justus, 283 S.E.2d at 907

2 Briefly, the substance of these claims is: (1) the trial court erred in excluding potentially mitigating evidence during the penalty phase of appellant's trial; (2) the trial court's instructions in the penalty phase failed to adequately guide appellant's jury in the use of its sentencing discretion; (3) the trial court's instructions during the guilt phase of the trial violated appellant's Sixth Amendment rights; and (4) the jury instructions and verdict form used in the guilt phase of the trial denied appellant his right to a unanimous jury (hereinafter the "substantive" claims)

3 Apparently, the district court reached this conclusion because the Murray Court was silent as to whether the procedural default rule also applied to ineffective assistance of counsel claims offered as cause. As is clear from our discussion below, we interpret the Murray Court's silence on this point to imply nothing more than the Court's assumption that the Wainwright rule applies to all constitutional claims raised in federal habeas

4 As an alternative grounds for our decision, we note that the district court's conclusion that the ineffective assistance of counsel claims were meritless and that, consequently, appellant's underlying substantive arguments were procedurally defaulted, was correct

5 For a similar analysis, see Gilmore v. Armontrout, 861 F.2d 1061, 1064-66 (8th Cir.1988), reh. den. en banc, 867 F.2d 1179, cert. denied, ---U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989)

JUSTUS v. THE STATE

36686.
(247 Ga. 276)
(276 SE2d 242)

DECIDED MARCH 12, 1981

JORDAN, Chief Justice.

Murder, etc. Gwinnett Superior Court. Before Judge Merritt.

Buddy Earl Justus, the appellant, pleaded guilty to the October 7, 1978, murder, kidnapping with bodily injury, armed robbery and rape of Rosemary S. Jackson. Following a hearing, the appellant was sentenced to life imprisonment for the kidnapping with bodily injury, the armed robbery, and the rape, and to death for the murder. The case is presently before this court for mandatory sentence review, and is a companion case to Goins v. State, 245 Ga. 62 (262 SE2d 818) (1980).

Although defense counsel has not enumerated any error in the proceeding below, he has requested this court to independently review the record to determine if error occurred.

The record establishes that, following the appellant's indictment, he informed the district attorney that he wished to plead guilty to all charges. In response the district attorney went to the appellant's jail cell and advised the appellant of his right to a trial by jury and his right to either a retained or appointed attorney. The district attorney further advised the appellant at this time that the state would seek the death penalty, and that said penalty would probably be imposed.

On May 23, 1980, the appellant was given a hearing in the Gwinnett Superior Court at which time the trial judge took the following actions.

First, the trial judge appointed an attorney who had been practicing law for fourteen to fifteen years and had handled over seventeen capital cases to represent the appellant. Second, he apprised the appellant of all of his constitutional rights, and told him that if the circumstances of the case otherwise warranted it, he had no conscientious, moral or religious objections to a sentence of death.

(The appellant answered that he understood this and that he understood the rights explained to him.) Third, the trial judge made the following findings of fact: the appellant was twenty-eight years old and had attended school through the tenth grade; he had been tried in a court of law three times prior to the present proceedings (he had one retained and two appointed attorneys); and, he understood the nature of the present proceeding. Finally, the trial judge set down June 13, 1980, ten days hence, as plea day.

During the ten day interim prior to plea day, the district attorney turned over to the appellant's appointed attorney, in addition to his entire file, the list of witnesses, the statement which the appellant had made to the Gwinnett County Police, a copy of the appellant's FBI rap sheet, a mental evaluation of the appellant, and the State Crime Lab Report.

On June 13, 1980, the plea hearing was held before the Gwinnett Superior Court. During said hearing, the appellant, with his attorney present, was extensively questioned by both the district attorney and the trial judge as to whether he understood each and every right and as to whether he was under the influence of any drugs, medicines or alcohol. Further, the trial judge explained to the appellant the alleged aggravating circumstances.

As the result of additional questioning, the trial judge found that the appellant had consulted with his attorney four times, and that his attorney had given the appellant all the time he needed or wanted to talk with him and discuss his situation (the appellant had had the attorney's phone number and could have called him at any time to discuss the case).

The trial judge also found that the appellant understood that he was pleading guilty without any recommendation on behalf of the state, and that the appellant was pleading guilty freely and voluntarily without promise of reward or threat of harm.

Finally, the trial judge found that the appellant was factually guilty and that he persisted in his plea of guilty despite his attorney's determination that the appellant had a better chance to avoid the death penalty with a jury than with the court (the attorney admitted, however, that despite discovery and consultation with his client, there were no material defenses to the charge).

The record establishes that the appellant was given a psychological evaluation in Virginia and, upon motion by defense counsel, in Georgia. These evaluations affirmatively show that the appellant was sane at the time he committed the crimes and could actively participate in his defense and was aware of the nature of the proceedings against him.

Upon independent review of the record, we find that the plea was properly accepted by the trial court and that no error occurred. See Fair v. State, 245 Ga. 868 (268 SE2d 316) (1980); Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975); Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975); Hooks v. State, 233 Ga. 149 (210 SE2d 668) (1974).

Sentence Review

The death sentence imposed in this case must be reviewed by this court under the standards set forth in Code Ann. 27-2537 (c) (1-3). Thus, we must determine whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; whether the evidence supports the trier of fact's finding of the statutory aggravating circumstances; and, whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.

We find that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. The trial judge found beyond a reasonable doubt the existence of the following statutory aggravating circumstances: (1) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the armed robbery of Rosemary Jackson, Code Ann. 27-2534.1 (b) (2); (2) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the kidnapping of Rosemary Jackson with bodily injury, Code Ann. 27-2534.1 (b) (2); (3) the offense of murder was committed while the offender was engaged in the commission of an additional capital felony, to wit: the rape of Rosemary Jackson, Code Ann. 27-2534.1 (b) (2); and (4) the offense of murder was outrageously or wantonly vile, horrible and inhuman in that it involved torture, depravity of mind and an aggravated battery to the victim, Code Ann. 27-2534.1 (b) (7).

From the evidence in this case, the trial court was authorized to find that the appellant and Dean Goins, a co-defendant, came to Georgia from Florida and decided to steal a van and rob someone. They pulled into a shopping center and sat there drinking beer until Rosemary S. Jackson, who was driving the type of van they desired, parked her van in the shopping center parking lot.

They abducted the victim at gunpoint and took her to Crack Road, a dirt access-road. The appellant drove the victim's van with the victim inside, and Goins drove the car that they had driven up from Florida.

On the way to the execution site the appellant stopped at a truck stop and made the victim purchase a C. B. unit, and pay for it with a credit card. The two proceeded to Crack Road where the appellant raped, stabbed and shot Mrs. Jackson. The co-defendant, Goins, was present at the scene but did not participate in the rape or murder. The New York tag was removed from the car and placed on the van. The car was then left near the body, and the appellant and his co-defendant left in the van ultimately being arrested in Virginia.

The state presented evidence that the chief jailer had observed the appellant in jail and that the appellant was normal, and was totally aware of his surroundings, capable of taking care of himself and coordinating his daily activities, conversing with his cell mates and the jail staff.

Forensic evidence established that the victim had been raped and had suffered three stab wounds to her body (one stab wound went through the right breast into the right lung through the diaphragm and down into the liver, and two wounds went into the back, one to the lower part of the shoulder blade, and the other one to the top of the right shoulder). The stab wounds occurred prior to death and caused considerable pain. The victim was then shot execution style with a single gunshot wound to the base of the skull just above the hairline. The appellant's fingerprints were located in the abandoned automobile.

The manager of the grocery store at the shopping center where the abduction took place became suspicious of the two men as they sat in the parking lot, and as he went to lunch, he wrote down the New York license plate number. The appellant was identified as the man coming in with the victim to the Atlanta Gateway Truck Stop where the C. B. radio was purchased.

In that the sentence of death in this case rests partially upon a finding of Code Ann. 27-2534.1 (b) (7), it must be reviewed in light of the United States Supreme Court's decision in Godfrey v. Georgia, 446 U. S. 420 (100 SC 1759, 64 LE2d 398) (1980), as construed by this court in Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980).

"Torture" as the term is used in the statute occurs when the victim is subjected to serious physical abuse prior to death. Hance v. State, supra. Serious sexual abuse may be found to constitute serious physical abuse. Hance v. State, supra.

Rosemary S. Jackson was not killed instantaneously nor was she the victim of a domestic murder. She gave the appellant no reason whatsoever to assault her and was in no manner threatening. The appellant fled and attempted in every manner to hide his crime. See Godfrey v. Georgia, supra. Ms. Jackson was abducted and sexually assaulted prior to death. Therefore, 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. Green v. State, 246 Ga. 598 (272 SE2d 475) (1980). Under the facts of this case, we find that murder was of the type universally condemned by civilized society as wantonly vile, horrible or inhuman, as it involved depravity of mind of the defendant and torture to the victim as set forth above.

The evidence supports a finding of the four aggravating circumstances by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The appellant's co-defendant, Dean Goins, was sentenced to life imprisonment. See Goins v. State, supra. The question is thus presented whether, in light of the lesser sentence imposed on the co-defendant, appellant's sentence is disproportionate.

Each case must be evaluated on its unique factual circumstances, as there is no simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser penalty. Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); McClesky v. State, 245 Ga. 108 (263 SE2d 146) (1980). We find material distinctions between appellant's case and the case of the co-defendant. First, the appellant was the actual perpetrator of the murder and rape of the victim, whereas the co-defendant was not, and in fact remained in the car while the killing took place. Second there was evidence that the appellant was the prime mover and that to some extent Goins was coerced into assisting the appellant in the commission of the crimes. Juries in similar circumstances have sentenced "triggermen" to death while the same penalty has not been imposed on co-defendants. These cases have been affirmed by this court. McClesky v. State, supra; Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976); Ross v. State, 233 Ga. 361 (211 SE2d 356) (1974).

We find that the appellant's sentence to death is neither excessive nor disproportionate to the penalty imposed in the case of his co-defendant. 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 the affirmance of the death penalty.

This was the brutal rape and murder of an armed robbery victim committed for the sole purpose of financial gain and sexual gratification. The 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.

APPENDIX.

Kramer v. State, 230 Ga. 855 (199 SE2d 805) (1973); Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975); Davis v. State, 236 Ga. 804 (225 SE2d 241) (1976); Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976); Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Corn v. State, 240 Ga. 130 (240 SE2d 694) (1977); Spraggins v. State, 240 Ga. 759 (243 SE2d 20) (1978); Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1978); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978); Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978); Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); 246 Ga. 261 (271 SE2d 352) (1980); Tucker v. State, 244 Ga. 721 (261 SE2d 635) (1979); Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979); Tucker v. State, 245 Ga. 68 (263 SE2d 109) (1980); Brooks v. State, 244 Ga. 574 (261 SE2d 379) (1979); 246 Ga. 262 (271 SE2d 272) (1980).
 
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