660 F.2d 573 (5th Cir. 1981), 81-7043, Smith v. Balkcom

Docket Nº:81-7043.
Citation:660 F.2d 573
Party Name:John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.
Case Date:November 02, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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660 F.2d 573 (5th Cir. 1981)

John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant,


Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.

No. 81-7043.

Unit B [*]

United States Court of Appeals, Fifth Circuit

November 2, 1981

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Robert C. Glustrom, John Charles Boger, New York City, Anthony G. Amsterdam, Stanford, Cal., Samuel R. Gross, New Haven, Conn., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before HILL, Circuit Judge, SMITH [**], Judge, and HENDERSON Circuit Judge.

JAMES C. HILL, Circuit Judge:

This appeal involves the denial of a petition for writ of habeas corpus made by a Georgia state inmate under sentence of death. Petitioner John Eldon Smith, a/k/a Anthony Isalldo Machetti, was convicted on two counts of murder in the Superior Court of Bibb County, Georgia and on January 30, 1975 was sentenced to die. 1 The Georgia Supreme Court affirmed both his conviction and sentence, Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976), and the United States Supreme Court denied certiorari. Smith v. Georgia, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). Smith then unsuccessfully petitioned for a writ of habeas corpus in state court, the Georgia Supreme Court affirmed the denial of relief, Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978), and again the United States Supreme Court denied certiorari. Smith v. Hopper, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978).

Having exhausted his state court remedies, Smith sought a writ of habeas corpus

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in the United States District Court for the Middle District of Georgia under 28 U.S.C. § 2254. The district judge referred Smith's case to a magistrate, whose proposed findings of fact and conclusions of law were adopted as the opinion of the court. Accordingly, on November 26, 1980, the district court denied the request for a writ. Smith now appeals from that denial. For the reasons set forth below, we affirm the dismissal of Smith's petition.

On appeal Smith raises three main issues. First, he contends that the exclusion from the jury, for cause, of two veniremen who were unequivocally opposed to the death penalty violated his rights under the sixth and fourteenth amendments in three distinct respects: (1) exclusion of these veniremen resulted in a jury that was conviction prone and thus less than neutral on the issue of guilt, in violation of his right to trial by an impartial jury; (2) their exclusion violated his right to trial by a jury chosen from a fair cross-section of the community; and (3) the cumulative effect of such death qualification of jurors infringed his sixth amendment interest in a properly functioning jury. Second, Smith urges that his death sentence was imposed pursuant to an arbitrary and racially discriminatory pattern of capital sentencing in Georgia. Finally, he challenges the constitutional adequacy of Georgia's capital sentencing review procedures. 2


A. Right to Trial by an Impartial Jury

During voir dire examination of the jury venire from which the jury that convicted Smith was selected, two persons unambiguously expressed their opposition to the death penalty, indicating that they would automatically vote against imposition of that penalty without regard to evidence presented in the case. 3 These veniremen were excused for cause in accordance with

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the practice approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 4

Smith contends that the exclusion for cause of these veniremen violated his right under the sixth and fourteenth amendments to an impartial jury. 5 He asserts an argument considered but rejected by the Supreme Court in Witherspoon namely that those veniremen who remain on the jury after the exclusion of those unalterably opposed to the death penalty are more conviction prone than the ones excluded under the "death qualifying" 6 procedure. While Smith does not challenge the exclusion of these unalterably death-opposed veniremen from the panel that determines the penalty to be imposed, he asserts that their being excluded from the guilt determination stage 7 results in the creation of an unconstitutionally conviction-biased jury.

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In support of his contention, Smith offers a plethora of studies, some of which were before the Court in Witherspoon. 8

In rejecting this constitutional objection in Witherspoon, 9 the Supreme Court stated:

The data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

391 U.S. at 517-18, 88 S.Ct. at 1774-75 (footnote omitted). However, the Court did not foreclose a defendant, having more persuasive evidence of juror tendencies, from asserting the guilt proneness of death-qualified jurors in a subsequent case. Some of the issues that would then arise were suggested.

Even so, a defendant convicted by such a jury in some future case might still

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attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment.

Id. at 520 n.18, 88 S.Ct. at 1776. Seizing this invitation, Smith argues that the studies he has offered provide the requisite degree of proof. 10

We assume without deciding that Smith's evidence does indeed supply the persuasiveness found lacking by the Supreme Court and by many other courts, both federal and state, since Witherspoon. 11 Nevertheless, for reasons to be discussed, we hold that the exclusion for cause from Smith's jury of veniremen so unequivocally opposed to the death penalty that they would not follow the law on the subject did not deny his constitutional right to an impartial jury.

In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), this court rejected the precise contention now urged by Smith. 12 Today we reaffirm the rationale set forth in Spinkellink.

That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant.

Id. at 594. 13

All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated i. e., those who, in spite of the evidence, would automatically vote to convict

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or impose the death penalty or automatically vote to acquit or impose a life sentence. The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment. Yet Smith here urges that he has a constitutional right to a jury more likely than a death-qualified jury to find him innocent.

In essence, Smith urges us to define "impartial" as a middle ground that involves a jury with persons who are in effect defendant prone. 14 The logical converse of the proposition that death-qualified jurors are conviction prone is that nondeath-qualified jurors are acquittal prone, not that they are neutral. Smith offers no proof that inclusion of veniremen currently excludable under Witherspoon will not tip the balance in the guilt/innocence determination in favor of the accused. 15 The state as well as the accused enjoys a right to an impartial jury. See Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887); Williams v. Wainwright, 427 F.2d 921, 923 (5th Cir. 1970), modified, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972). Such a tilt of the scales of justice would violate that right. As recognized in Spinkellink, the danger of a defendant prone jury is too great to accede to Smith's claim.

The state has decided that the parties' right under the Sixth and Fourteenth Amendments to an impartial jury and the state's interest in the just and even-handed application of its laws, including (the state's) death penalty, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment.

578 F.2d at 596. 16


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