Nollie Lee Martin v. Louie L. Wainwright

*186 ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion August 26, 1985, 11 Cir., 1985, 770 F.2d 918 ).

Before GODBOLD, Chief Judge, KRAV-ITCH and HATCHETT, Circuit Judges.

PER CURIAM:

The opinion of the court filed on August 26, 1985, is modified as follows:

The text of footnote 10 of the opinion is hereby deleted and the following substituted:

The Supreme Court recently decided Miller v. Fenton, - U.S. -, 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985). In Miller , the Court held that in considering the voluntariness of a confession, a federal habeas court should afford a presumption of correctness to a state court’s findings of “subsidiary factual questions, such as whether ... in fact the police engaged in the intimidation tactics alleged by the defendant.” - U.S. at -, 106 S.Ct. at 449-51 . The federal habeas court should not, however, defer to a state court’s ultimate conclusion as to the voluntariness of a confession.

Id.

Our opinion in this case is consistent with Miller ;

although we accepted the state court’s finding on the “subsidiary factual question” of whether the police made the promises which Martin alleged, we independently reviewed the question of whether the interrogation tactics used by the police in this case resulted in Martin’s will being overborne. After conducting our own analysis, we concluded that they did not. Hence Miller does not affect our disposition.

The text of footnote 31 is hereby deleted and the following substituted:

Martin argues that Zeisel’s proffered testimony relating to the alleged lack of deterrent effect on the mentally ill was “tailored to the facts and circumstances” of his case. The gist of Zeisel’s testimony was that mentally ill murderers should not be given the death penalty because other mentally ill persons will not thereby be deterred from committing murders. This testimony had nothing to do with Martin’s personal character, record, or the circumstances of his offense, the only type of evidence required to be admitted under Lockett.

The effect of Martin’s sentence on anyone other than Martin is not Lockett-type evidence. Moreover, the legislative goal of deterring criminals through executions is not simply to deter persons with the same characteristics as the defendant but to deter all potential murderers, and the question of whether the death penalty will or will not serve this goal is for the legislature.

The petition for rehearing by the panel is DENIED. No member of this panel nor judge in regular active service on the court having requested that the court be polled on rehearing en banc, the suggestion for rehearing en banc is DENIED.