McCorquodale v. Balkcom

KRAVITCH, Circuit Judge,

concurring in part and dissenting in part:

I concur in all portions of the majority opinion except its resolution of the Wither-spoon issue. On that issue, I respectfully dissent.

The majority correctly notes that the Supreme Court in Witherspoon stated:

[Njothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making any impartial decision as to the defendant’s guilt.

Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (some emphasis added and some in original).

Under this standard, the voir dire examination in the instant case complied with the Witherspoon mandate: each and every potential juror excused for cause due to their attitude toward the death penalty made “unmistakably clear” in response to precise questions that their views would prevent their impartial decision in either the penalty or guilt phase of the trial.

Two novel issues in the Witherspoon context are presented: whether Witherspoon requires that the voir dire questions be propounded to each juror individually and whether the responses must be verbal. Neither issue has been decided by this circuit 1 or the Supreme Court. Although individual voir dire and verbal responses usually are preferable, they are not the touchstone of Witherspoon compliance.2 More important than form is the substance of both the inquiry and responses: that the questions precisely and unambiguously instruct the jurors as to the Witherspoon qualifications and that the jurors’ responses be clear and unequivocal. In most instances the most definite response will be in a verbal form. Verbal responses however are not talismans for clarity. They are often fraught with ambiguity. Much turns on the tone of voice, the facial expression and the demeanor of the venireperson as the response is delivered. Even a simple ‘yes,’ although on a cold written record appearing crystal clear, can be delivered in a manner that conveys doubt. For this reason, when as here the questions asked were precise and closely tracked the Witherspoon standards, deference should be given to the trial court’s assessment of whether the responses made clear that the objection to the death penalty was of a degree to warrant excusing the potential juror. See Irvin v. Dowd, 366 U.S. 717, 723-24, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961) (trial court’s finding of strength of prospective juror’s opinion based on publicity should not be set aside unless error is ‘manifest’); United States v. Robbins, 500 F.2d 650, 653 & n. 3 (5th Cir.1974)3 (ruling on suggestions of impartiality is within discretion of trial court and abuse of that discretion must be clear to warrant reversal).

The rationale does not differ when the responses are nonverbal. As with verbal answers, nonverbal responses can and must be assessed for the demeanor, facial expression and degree of hesitancy, or lack thereof, evidenced as the response is made. In this regard an appellate tribunal should defer to the trial judge who was present. An appellate court is handicapped to do otherwise. See Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22 (1981); Irvin v. Dowd, 366 U.S. at 723-24, 81 S.Ct. at 1642-43; United *1562States v. Robbins, 500 F.2d at 653 n. 3, quoting Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878).

In Burns v. Estelle, 626 F.2d 396 (5th Cir.1980), on which the majority relies, the court determined it was error under Witherspoon to excuse a venireperson who was asked only whether her views on the death penalty would “affect” her decision. Affirming that her views would “ ‘affect’ her deliberations, with little or no indication of how profound that effect would be ... was not enough.” Id. at 398. The questions addressed to the venireperson in Burns did not clearly and precisely pose the critical Witherspoon issue: would the venireperson’s attitude toward the death penalty prevent her from making an impartial decision as to guilt or innocence or cause her automatically to vote against the death penalty regardless of the evidence. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777. In Burns, failure to pose the question at any point in the voir dire meant-the venireperson was “prematurely excused,” Burns v. Estelle, 626 F.2d at 398, and further questions were required. See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

In contrast, here the prosecutor’s questions were unconvoluted, precise and directly posed the crucial Witherspoon issues. The majority points to no flaw in the questions.4 After explaining to the venire that three questions would be asked and asking them to stand up if their answer to the first was ‘yes,’ the prosecutor enunciated the following query:

The [first] question is this. Are you conscientiously opposed to capital punishment? If you’re conscientiously opposed to capital punishment, if you will, please stand. If you are not conscientiously opposed to capital punishment, remain seated. [Nineteen of approximately sixty persons rose].

Trial Transcript at 279. This clearly is a proper initial Witherspoon question, geared at identifying those to whom further questioning should be directed. The prosecutor then proceeded.

All right,' now all the jurors who are conscientiously opposed to capital punishment, please stand. Now ladies and gentlemen, those who are standing and who have indicated by doing so that you are conscientiously opposed to capital punishment, I’d liké to address to you two additional questions. If your answer to either of these questions is, yes, I’d like to, if you would, please simply step up to the rostrum. If your answer is no to both questions, then please remain where you are.
The first question is this. Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case, regardless of what the evidence was? [At this point defense counsel objected on the ground that this question was improper and then the questioning proceeded with the prosecutor repeating the same question].
Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case regardless of the evidence? [At this time some of the jurors standing stepped forward and the prosecutor asked all those who had stood in response to the first question to remain standing]....
This is addressed to every juror who has not come forward but who has indicated by standing, that you are conscientiously opposed to capital punishment.
The question is this. Would you allow your opinion about capital punishment to prevent you from being a fair and impartial juror on the issue of guilt or innocence as distinguished from the issue of punishment? If you would, would you please step forward. [Here some of the remaining jurors standing stepped forward. In all, fifteen of the nineteen persons who had stood up had stepped forward and were excused for cause. Four did not step forward and were not ex*1563cused for cause. Defense counsel objected generally].

Trial Transcript at 279-81 (emphasis supplied). See McCorquodale v. Balkcom, 525 F.Supp. 408, 424 (N.D.Ga.1981).

The majority holds that, as in Burns, the venirepersons were excused prematurely. However, no further questions could have posed the relevant inquiry' more effectively.5 The critical questions were asked immediately. In my view, proceeding directly to the relevant issues fosters understanding by the jurors who are saved the confusion engendered by precatory questioning that misses the Witherspoon mark.

Defense counsel here, unlike in Burns, 626 F.2d at 397-98 n. 2, made no suggestions of any further questions that should be asked. Rather counsel objécted only generally to the form of the questions, and to the dismissal of the jurors as a whole. If the basis for any further objection existed, e.g., hesitation on the part of those stepping forward, the burden was on defense counsel to raise the issue. Cf. Goodwin v. Balkcom, 684 F.2d at 816 (11th Cir.1982) (failure of defense counsel to raise Witherspoon violation is evidence of ineffectiveness).6

Under these circumstances, I would hold that one who,' without hesitation,7 stood up and then stepped forward in response to these precise questions was stating unequivocally and unambiguously that in no event would he or she vote to impose the death penalty or that his or her views on the death penalty would prevent an impartial determination of guilt or innocence.

The second issue raised is the collective questioning of the venire. Although no case has decided the propriety of such questioning in the Witherspoon context, as the majority notes cases have addressed the issue in determining the impact of pretrial publicity.8 See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Hawkins, 658 F.2d 279 (5th Cir.1981); United States v. Gerald, 624 F.2d 1291 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981).

Generally, the method of voir dire examination is committed to the sound discretion of the trial, courts, limited by the requirements of due process. United States v. Hawkins, 658 F.2d at 283; United States v. Gerald, 624 F.2d at 1296; United States v. Delval, 600 F.2d 1098, 1102 (5th Cir.1979). See Irvin v. Dowd, 366 U.S. 717, 723-24, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). The trial court’s discretion includes the decision whether voir dire should be conducted collectively or individually, United States v. Gerald, 624 F.2d at 1296, and no different rule is required when Witherspoon qualification is in issue.

In United States v. Davis, 583 F.2d 190 (5th Cir.1978), in light of extensive pretrial publicity, the trial court asked any venireperson who felt that the publicity had impaired his ability to render an impartial decision to raise his hand. When none responded the court refused defense counsel’s request to examine each venireperson individually. Id. at 196. In overturning the convictions the Fifth Circuit stated: “Though separate examination of jurors is sometimes preferable, it is not necessarily required.” Id. at 196-97 (footnotes omitted). However, on the facts of Davis where only one question was asked and the ques*1564tion did not ascertain the critical information needed to determine whether pretrial publicity had affected the right to an impartial jury, the court ruled that the trial court had an insufficient basis for exercising its duty to decide whether that right had been impaired. Id. at 197-98. “Without establishing an inflexible rule” for accomplishing the task, id. at 198, the court held that the trial court must assess whether the critical questions in pretrial publicity cases have been answered. Id. at 197-98.

In United States v. Gerald, 624 F.2d at 1297-98, where virtually the same question was asked as in Davis, counsel for defendant failed to direct the court’s attention to specific items of publicity and did not request individual voir dire. Distinguishing Davis, the court upheld the convictions. Id. at 1296-98.

These two cases are helpful to our inquiry. First, individual questioning is not required if other effective means of eliciting necessary responses are used.9 United States v. Davis, 583 F.2d at 196-97, 198. Second, specific objections and requests for individual voir dire are crucial. Compare United States v. Davis, 583 F.2d at 196 with United States v. Gerald, 624 F.2d at 1297-98. The absence of specific objection or request for individual or further group questioning is a valuable indicia that the procedures utilized were satisfactory to defense counsel and that none of the circumstances of the voir dire prompted counsel to consider a particular, alternative procedure more appropriate. See United States v. Butera, 677 F.2d 1376, 1383-84 (11th Cir.1982). In the instant case defense counsel, while not barred from doing so, did not bring to the court’s attention that any of the venirepersons who stood up and stepped forward appeared hesitant or confused; nor does the record otherwise indicate any hesitation or confusion. No request for individual voir dire was made. Accordingly, I find no error in use of the group voir dire in lieu of individual examination of each juror. See United States v. Gerald, 624 F.2d at 1297-98; United States v. Shavers, 615 F.2d 266, 268 (5th Cir.1980); United States v. Delval, 600 F.2d at 1102.

The majority states that the venirepersons “[were] not able to request further explanation or indicate that [they] [did] not understand the question.” Majority Opinion, at 1559. There is no indication in the record that the prospective jurors were precluded from articulating any lack of understanding of the questions or asking for clarification.

Concluding that there is no inherent constitutional defect in either the collective voir dire or the elicitation of nonverbal responses, in light of the clear, precise articulation of the crucial Witherspoon questions, I would affirm the challenges for cause, of the venirepersons excused pursuant thereto.

This leaves the dismissal of Ms. Woodlief. While she did not respond to the collective voir dire by standing up, upon reconsideration and after having had the benefit of hearing in context all of the precise questions directed to the entire panel, she indicated that she did not believe in capital punishment. The following dialogue ensued:

THE COURT: You didn’t understand the question that was posed to you awhile ago?
THE JUROR: Yes, I did at that time. I thought that under certain situations and possibly to rationalize this to myself, but sitting here and observing, I don’t think I could do it, I really don’t.
[She was then excused for cause. Defense counsel invoked the “same objections as to the others.”]

Trial Transcript at 400-01 (emphasis supplied).

*1565The majority focused solely on the use of the word “think” to conclude that Ms. Woodlief’s answer was ambiguous. However, we cannot evaluate the words when taken out of context. The complete statement “I don’t think I could do it, I really don’t” (emphasis supplied) convinces me of the unambiguous nature of her response. Moreover, this potential juror had the time to reflect on her earlier response and specifically indicated that she had changed her conclusion. Although an appellate court is deprived of the benefit of hearing her tone of voice and observing her demeanor, see discussion supra at 1561, the response given, when judged in light of the opportunity to reflect and the emphasis supplied by the repetitive statement, “I don’t think I could do it, I really don’t”, is unambiguous. Once again, the defense counsel raised no specific objection and offered no questions which could be used to rehabilitate the potential witness. Defense counsel simply and routinely asserted the “same objections as to the others.”

Viewing the totality of the voir dire of Ms. Woodlief, I would affirm this challenge for cause.

Accordingly, I would affirm on all grounds the denial of habeas corpus relief.

. Cf. Goodwin v. Balkcom, 684 F.2d 794, 816 (11th Cir.1982) (“[l]t may be possible in some instances for a court to decide that a response other than verbal is unquestionably unambiguous”).

. I find no precedent for a holding, and do not read the majority as enunciating a rule, that nonverbal responses can never satisfy the exacting standards of Witherspoon.

. The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

. The questions here stand in sharp contrast to those articulated in Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982) on which the majority relies. See Maj.Op. at 1560. The questions there posed were ambiguous and the venireperson indicated confusion and lack of understanding. Here the questions succinctly and clearly posed the critical Wither-spoon inquiry and the record reveals no hesitation or confusion on the part of any venireperson. See text infra, at 1564.

. Burns does not set up a requirement as to the number, but rather the quality of questions that must be asked. Excusing the jurors in Burns was deemed premature only because the relevant and critical questions had yet to be asked.

. The record reveals no impediment to defense counsel proffering more questions or asking that the court or prosecutor pursue further questioning. Cf. Goodwin v. Balkcom, 684 F.2d at 814 (court refused defense counsel’s request to question further the jurors excused for cause). See United States v. Butera, 677 F.2d 1376, 1383-84 (11th Cir.1982) (no error in court conducted voir dire where all questions that counsel proffered were asked).

. There is no evidence in the record that any of the venirepersons hesitated before standing up or stepping forward.

. Critical to the analysis in pretrial publicity cases is an assessment of whether, from the publicity, a juror has developed an opinion about the case and whether the juror can lay aside any impression or opinion developed. Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642-43; United States v. Davis, 583 F.2d at 197; Calley v. Callaway, 519 F.2d 184, 205-06 (5th Cir.1975) (en banc), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). Thus, the inquiry is closely analogous to that required in the Witherspoon context.

. In United States v. Blanton, 700 F.2d 298, 305 (6th Cir.1983), a prejudicial publicity case on which the majority relies in concluding that without individual questioning the strength of a venireperson’s opposition to capital punishment is impossible to ascertain, the Sixth Circuit did not condemn group voir dire. To the contrary, the Blanton court relies in large part on United States v. Davis, supra, in concluding that individual voir dire is not necessarily required. United States v. Blanton, 700 F.2d at 306. In Blanton the court reversed the conviction because the questions were not extensive enough to allow the trial court to determine whether prejudice existed. “The trial court’s questioning was less extensive here than in any of the cases from other circuits which found the questioning adequate. No inquiry was made of the veniremen about the extent of their exposure to the case ... .More important, the trial court did not ask the veniremen whether any had formed an opinion about the case.” Id. at 307. Thus, Blanton stands for no more than the proposition, with which I have no dispute, that failure to ask the critical questions will make a group voir dire • inadequate.