Frank Middleton

Case details

Frank Middleton Jr. was executed by lethal injection in South Carolina on November 22, 1996.

Timeline

• June 1984 — Middleton escaped from a prison work crew and murdered Janell Garner and Shirley Mack.
• 1984 — Middleton raped and killed Shirley Mae Mack, a 49-year-old night-shift cook, while she was walking home from work in Charleston.
• 1984 — Middleton escaped and, while a fugitive, raped and killed another woman, Janell Garner.
• 1984 — Middleton was serving a six-year sentence for stabbing a 13-year-old boy when he escaped from the prison work crew.
• 1988 — The Supreme Court of the United States declined to issue a writ of certiorari following State v. Middleton, 368 S.E.2d 457 (S.C.) (Middleton I).
• 1991 — The Supreme Court of the United States denied Middleton’s petition after state post-conviction relief.
• Decided Feb. 14, 1996 — The United States Court of Appeals for the Fourth Circuit affirmed the denial of the writ of habeas corpus.
• Nov. 24, 1996 — A news account reported that Middleton was executed by injection in Columbia, S.C.

Background

Middleton was convicted by a jury and sentenced to death in a case involving the murder, criminal sexual conduct, and armed robbery of Shirley Mack. The federal habeas proceedings concerned his prosecution, conviction, and death sentence for the murder, criminal sexual conduct, and armed robbery of Mack.

Middleton was also connected to the murder of Janell Garner. He escaped from a prison work crew while serving a six-year sentence for stabbing a 13-year-old boy. After his escape, he raped and killed Janell Garner while a fugitive. He was sentenced to life in prison for that killing.

The offence

Murder of Shirley Mae Mack

Shirley Mae Mack was a 49-year-old night-shift cook. She was raped and killed in 1984 while she was walking home from work in Charleston.

Murder of Janell Garner

Middleton raped and killed Janell Garner while he was a fugitive.

Escape from prison work crew

Middleton escaped from the prison work crew. He had been serving a six-year sentence for stabbing a 13-year-old boy when he escaped.

Investigation and evidence

Middleton’s confession included the statement: "I did screw her." (J.A. at 919.) Middleton also made an oral confession described as: "I did do something to her.... [W]ell, like, man, you know, it's kind of hard and I wanted some ass so I grab and got a piece of ass, and [Middleton told me] like I pull her and like I push her down, and like I got piece of ass...." (J.A. at 967.)

Dr. Sandra Conradi testified that the victim was wearing a bra and jacket but was otherwise unclothed. She testified that the acid phosphate levels in her mouth were three times greater than the normal acidity level, which revealed a possibility of oral sex.

The State’s pathologist testified that a chemical analysis of the victim’s mouth revealed fellatio had occurred. Vaginal intercourse was not excluded though there was no evidence of vaginal trauma.

At the guilt phase of trial, Middleton was convicted of first degree criminal sexual conduct. The same evidence supporting the conviction for first degree criminal sexual conduct supported submission of the aggravating circumstances of rape.

The Supreme Court of South Carolina stated: "[Middleton's] statement indicated he had sexual relations with the victim. The State's pathologist testified a chemical analysis of the victim's mouth revealed fellatio had occurred. Vaginal intercourse was not excluded although there was no evidence of vaginal trauma. At the guilt phase of trial, appellant was convicted of first degree criminal sexual conduct. The same evidence supporting the conviction for first degree criminal sexual conduct supports submission of the aggravating circumstances of rape." (Middleton I, 368 S.E.2d at 460.)

The state PCR court found that Middleton raped Mack: "In [Middleton's] confession, he states, "I did screw her. It took about eight minutes." I take judicial notice that "screw" in the vernacular means genital sex. This was accomplished, according to [Middleton's] confession, after the victim had taken her clothes off at knife point. A rational finder of act could conclude that this act was rape, as defined in the common law. (J.A. at 316-17.)"

Trial

Convictions and sentence

A jury convicted Middleton of murder, criminal sexual conduct, and armed robbery, and sentenced him to death.

Jury instructions on aggravating circumstances and mitigation

The instructions provided in pertinent part:

[R]ape, which means criminal sexual conduct, first degree.... .... ... [Y]ou may consider the following statutory aggravating circumstance: One, murder was committed while in the commission of the following crimes or acts: Criminal sexual conduct, first degree, and or armed robbery. .... Now, should you find beyond a reasonable doubt that one of the circumstances listed on this sheet of statutory instructions existed at the time of the murder, and should you then decide after weighing such finding against the elements in favor of a recommendation of life imprisonment about which I will instruct you later, then the recommendation of the jury is to be that [Middleton] be sentenced to death. .... In reaching your decision as to which sentence to recommend, you will weigh the aggravating and mitigating circumstances. .... In your deliberations you will consider any statutory or non-statutory mitigating circumstance which are [sic] supported by the evidence. You will weigh the aggravating circumstance or circumstances you found against the mitigating circumstance, and you will then decide whether you will recommend the death penalty or life imprisonment. You may also consider any other factor in mitigation of the offense, and you can recommend a sentence of life imprisonment for no reason at all. (J.A. at 1502-08.)

On direct appeal, the Supreme Court of South Carolina explained: "He clearly instructed the jury, however, it could consider any other factor in mitigation and could recommend a life sentence for no reason at all. Considering the charge as a whole, we find no error." (Middleton I, 368 S.E.2d at 460.)

Instructions on reasonable doubt

The jury was instructed with the following language: "The term reasonable doubt is a common, legal term used for many, many years and yet it still is difficult to define. The word reasonable means moderate, fair, not extreme or excessive. Now, a reasonable doubt is not an imaginary doubt or a fanciful doubt or a weak doubt or a slight doubt. As I previously said, a reasonable doubt is a substantial doubt which arises out of the evidence or the lack of evidence in the case for which a person honestly seeking to find the truth can give a reason. Now, if you have such a doubt in your mind, you must resolve that doubt in favor of [Middleton] and write a verdict of not guilty." (J.A. at 1282-83.)

Sentencing “recommendation” language

The trial court’s sentencing instructions included: "[I]t now becomes your duty to decide what sentence you will recommend that this court impose upon [Middleton]. There are two verdicts you are to consider in this case. One, the death penalty.... The other is life imprisonment. The order in which I explain these two sentences is in no way a recommendation by this Court as to which sentence you should choose to recommend. It is simply that one must be stated first. By this recommendation of sentence form which I hold in my hand, you, the jury, may recommend that this Court sentence [Middleton] to death.... It is the law ... that a recommendation for the imposition of the death penalty must be a unanimous recommendation, and that each and every juror sign his or her name to the recommendation form. .... Now, for this [death penalty] recommendation to be made, that is, that [Middleton] be sentenced to death, you must first find that a statutory aggravating circumstance existed beyond a reasonable doubt." (J.A. at 1500-01.)

The trial court also informed jurors at voir dire: "the ultimate punishment of [Middleton] will be in your hands if you as a member of the trial jury have found [him] guilty." (J.A. at 119.)

Unanimity and mitigating circumstances instructions

The instructions included: "You may also consider any non-statutory mitigating circumstances.... I tell you that while there must be some evidence which supports a finding by you that a statutory or non-statutory mitigating circumstance exists, you need not find the existence of such a circumstance beyond a reasonable doubt. ... While an aggravating circumstance must be found before you can even consider recommending the death penalty, once such finding is made beyond a reasonable doubt you may recommend the death sentence even though you find the existence of a statutory mitigating circumstance. In other words, the existence of an alleged statutory mitigating circumstance is not a bar to the imposition of the death penalty. ... [You may sentence Middleton] to life imprisonment for any reason or for no reason at all .... In other words, you may choose to recommend life imprisonment if you find a statutory or non-statutory mitigating circumstance, or you may choose to recommend life imprisonment as an act of mercy. In any instance, should you choose to recommend life imprisonment your decision must be a unanimous one and the foreman alone would be required to sign the recommendation form." (J.A. at 1506-07.)

The trial court instructed: "Whatever your recommendation is, it must be a unanimous one; that is to say, it must be the verdict of each and every juror." (J.A. at 1508.)

Appeals

State appeals and certiorari

After trial, the Supreme Court of South Carolina affirmed the convictions and sentence in State v. The Supreme Court of the United States declined to issue a writ of certiorari.

Post-conviction relief (PCR) and denials

Middleton sought post-conviction relief. The state PCR court denied his petition, with prejudice, concluding it was without merit. The Supreme Court of South Carolina denied his petition, as did the Supreme Court of the United States (502 U.S. 854 (1991)).

Federal habeas corpus

Middleton filed a petition for a writ of habeas corpus in federal district court, challenging the imposition of the death penalty on multiple grounds:

1. Jury instructions respecting aggravating circumstances violated the Ex Post Facto and Due Process Clauses.
2. State trial counsel was ineffective, in violation of the Sixth and Fourteenth Amendments.
3. The state trial judge erred in failing to instruct the jury sua sponte at the sentencing phase that it could draw no adverse inference from his failure to testify, in violation of the Fifth and Fourteenth Amendments.
4. The jury did not realize it was responsible for imposing the death penalty, in violation of the Eighth and Fourteenth Amendments.
5. Jury instructions regarding reasonable doubt lowered the State’s burden of proving guilt beyond reasonable doubt, in violation of the Fifth and Fourteenth Amendments.
6. Jury instructions with respect to mitigating circumstances misled the jury into concluding that a finding of mitigating circumstances had to be unanimous, in violation of the Eighth and Fourteenth Amendments.

The district court referred Middleton’s petition to a magistrate judge under 28 U.S.C.A. § 636(b)(1)(B). The magistrate judge rejected all challenges and recommended summary judgment in favor of the State.

After a hearing and de novo review, the district court concluded Middleton was not entitled to a writ of habeas corpus in Middleton v. Evatt, 855 F.Supp. 837 (D.S.C.1994) (Middleton II).

Middleton appealed the denial of his habeas petition to the United States Court of Appeals for the Fourth Circuit.

Fourth Circuit decision

The Court of Appeals for the Fourth Circuit addressed Middleton’s contentions seriatim and affirmed the denial of the writ. The appeal was by Frank Middleton Jr., petitioner-appellant, against Parker Evatt, Commissioner, South Carolina Department of Corrections; and T. Travis Medlock, Attorney General, State of South Carolina, respondents-appellees.

The Fourth Circuit appellate record included:

• No. 94-4015
• United States Court of Appeals, Fourth Circuit
• Argued Sept. 27, 1995
• Decided Feb. 14, 1996
• Appeal from the United States District Court for the District of South Carolina, at Columbia
• Solomon Blatt, Jr., Senior District Judge
• Before WILKINS, NIEMEYER and WILLIAMS, Circuit Judges
• OPINION PER CURIAM The Fourth Circuit affirmed the district court’s denial of habeas relief.

Sentencing

Middleton received the death penalty after the jury convicted him of murder, criminal sexual conduct, and armed robbery. The Supreme Court of South Carolina affirmed the convictions and sentence.

Other details

Middleton was alleged to have committed the murder of Mack after escaping from a prison work crew. The appeal focused on the murder, criminal sexual conduct, and armed robbery of Mack.

The state trial court’s instructions contained language that used the word "weigh" when discussing aggravating and mitigating circumstances. The appellate discussion concluded that, viewed in context, there was no reasonable likelihood the jury misunderstood the instructions.

The appellate decision addressed an Ex Post Facto Clause claim regarding rape versus criminal sexual conduct statutes and discussed South Carolina statutory and judicial interpretation, including State v. Stewart, 320 S.E.2d 447 (S.C.1984), State v. Elmore, 308 S.E.2d 781 (S.C.1983), and related cases.

Middleton raised an ineffective assistance of counsel claim directed at his trial counsel Joseph Kent, Public Defender for Charleston County. The appellate decision described seven instances Middleton alleged showed deficient performance: opening statement, cross-examination regarding Mack’s husband and alcohol, the insanity defense presentation, failing to challenge expert testimony on mental retardation, mischaracterizing Middleton as "dumb" in closing argument, failing to request a jury instruction on responsibility for imposing sentence, and inadequate pretrial preparation.

Middleton challenged the failure to instruct the jury at the sentencing phase that no adverse inference could be drawn from his failure to testify.

Middleton challenged instructions that characterized the jury’s sentencing responsibility as a "recommendation" rather than binding, and the appellate decision discussed Caldwell v. Mississippi and Dugger v. Adams. The appellate decision also relied on the earlier Fourth Circuit decision Gaskins v. McKellar.

Middleton challenged the reasonable doubt instructions on due process grounds, arguing the substitution of "substantial doubt" for reasonable doubt lowered the State’s burden; the appellate decision referenced Cage v. Louisiana, Victor v. Nebraska, Adams v. Aiken, and Kornahrens v. Evatt.

Middleton challenged sentencing instructions regarding mitigating circumstances and unanimity, arguing that the jury would conclude mitigating circumstances must be unanimous; the appellate decision addressed the trial court’s language and compared the argument to Mills v. Maryland and McKoy v. North Carolina.