681 F.2d 1067 (5th Cir. 1982), 81-4172, Jordan v. Watkins

Docket Nº:81-4172.
Citation:681 F.2d 1067
Party Name:Richard Gerald JORDAN, Petitioner-Appellant, v. John C. WATKINS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.
Case Date:August 06, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1067

681 F.2d 1067 (5th Cir. 1982)

Richard Gerald JORDAN, Petitioner-Appellant,


John C. WATKINS, Commissioner, Mississippi Department of

Corrections, et al., Respondents-Appellees.

No. 81-4172.

United States Court of Appeals, Fifth Circuit

August 6, 1982

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[Copyrighted Material Omitted]

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Wilmer, Cutler & Pickering, James T. Kilbreth, III, Washington, D. C., Joseph P. Hudson, Gulfport, Miss., Timothy N. Black, Washington, D. C., Judith A. Reed, New York City, Levi & Denham, Earl L. Denham, Ocean Springs, Miss., for petitioner-appellant.

William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER, [*] District Judge.

DUPLANTIER, District Judge:

On January 12, 1976, Richard Gerald Jordan kidnapped the wife of an officer of a Gulfport, Mississippi, bank, took her to a nearby wooded area, and killed her by shooting her in the head. Jordan was arrested at a roadblock the next day after he had been observed picking up the $25,000 ransom he had demanded. 1

A Mississippi state court jury convicted Jordan of capital murder on July 21, 1976, and the court imposed a mandatory death sentence under the then applicable Mississippi law. The trial court granted his motion for a new trial in light of the state supreme court's decision in Jackson v. State, 337 So.2d 1242 (Miss.1976), which set forth new capital-sentencing guidelines and procedures. Appellant's second trial was bifurcated, as required by Jackson, supra. The jury convicted appellant in the guilt phase of the trial and thereafter imposed a sentence of death in the sentencing phase. The state supreme court affirmed his conviction and sentence, Jordan v. State, 365 So.2d 1198 (Miss.1978), and the United States Supreme Court denied his petition for a writ of certiorari. Jordan v. Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). The state supreme court denied appellant's petition for a writ of error coram nobis.

This appeal from the federal district court's denial of habeas corpus relief (28 U.S.C. § 2254) presents the following issues:

(1) whether the exclusion of petit jury veniremen who expressed conscientious objections to the death penalty violated the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);

(2) whether the introduction at trial of appellant's tape-recorded confession, which was elicited in the absence of counsel, violated the fifth and sixth amendments;

(3) whether the trial court's jury charge permitted appellant to be sentenced to death without a finding that he intended to kill, and, if so, whether this would impose a punishment excessive in relation to the crime, in violation of the eighth amendment. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

(4) whether the application to appellant of the Mississippi capital-sentencing statute as construed by the Supreme Court of Mississippi in Jackson v. State, supra, violated the ex post facto clause of the United

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States Constitution because the Jackson procedures were not enacted until after Jordan's first trial;

(5) whether the Mississippi supreme court in Jackson engaged in a legislative function in violation of Jordan's due process rights; and

(6) whether the aggravating/mitigating circumstances rules promulgated by the Mississippi supreme court in Jackson v. State, supra, as applied by the trial court during the sentencing hearing, failed to channel the sentencing jury's discretion by clear and objective standards as required by the eighth amendment as construed in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

With respect to the first two issues, Jordan challenges both the guilty verdict and the death sentence. The other issues involve only the validity of the capital sentence. We conclude that Jordan's arguments regarding all but the Godfrey issue are unfounded. We hold that the procedure followed in the sentencing hearing violated constitutional requirements as set forth in Godfrey v. Georgia, supra. Therefore, we vacate the capital sentence and authorize the State of Mississippi to attempt to reimpose the death penalty at a proper sentencing hearing before a new jury pursuant to present Mississippi law.

The Witherspoon Issue

Appellant contends that he was denied his right to a fair and impartial jury under the sixth and fourteenth amendments as construed and applied in Witherspoon v. Illinois, supra, by the exclusion of four veniremen who expressed conscientious objections to the death penalty. Through Witherspoon and its progeny, the Court has established that a juror may not be challenged for cause based upon his general objections to capital punishment or scruples against its infliction. See, e.g., Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). The transcript of appellant's trial shows that the potential jurors who expressed objections to the death penalty were struck from the venire by the prosecutor's use of peremptory challenges, not challenges for cause. 2 The Witherspoon rule is inapposite to the case sub judice because it applies solely to the use of challenges for cause. 3 "There is thus no Witherspoon issue in this appeal." Stephens v. Zant, 631 F.2d 397, 404 (5th Cir. 1980), modified in other respects, 648 F.2d 446 (5th Cir. 1981). 4

The Confession and the Right to Counsel

Jordan claims that the trial court erred in admitting the tape-recorded confession that was elicited from him in the absence of his appointed counsel during custodial interrogation after he had been charged. Appellant argues that his confession was obtained in violation of the fifth and sixth amendments.

The underlying facts are undisputed. 5 Jordan was arrested between 12:30 and 1:00 P.M. He was taken to the FBI offices in

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Gulfport immediately thereafter by three members of the local police force, one of whom informed appellant that it was his duty to advise him of his rights under Miranda v. Arizona. 6 After appellant replied that he already knew his rights, the officer read them to him from a "Miranda card." Jordan recited the Miranda rights by memory as the officer read them. At approximately 2:00 P.M., appellant again was advised orally of his rights by an FBI agent in an interview room in the presence of another FBI agent and a police detective. Jordan then read a waiver of rights form, stated that he understood his rights, and executed a written waiver. All of this took place without any request by Jordan for the assistance of counsel.

Jordan initially denied any involvement in the kidnapping or murder but changed his mind and told the authorities about most of his activities in connection with the crime. In addition, he drew a map showing the location of his victim's body and offered to help locate certain key items of inculpatory evidence. Jordan was transferred to the custody of local officials after a visit to the various scenes of the crime.

At 4:45 P.M., Jordan was brought before a county judge, who advised him that he was charged with a capital offense and that he was entitled to an immediate preliminary hearing. The judge, appellant and the prosecutor (Necaise) then engaged in the following colloquy: 7

BY THE COURT: How old are you?

BY THE DEFENDANT: Twenty-nine, sir.

BY THE COURT: I see. Have you an attorney?

BY THE DEFENDANT: No, sir, I do not.

BY THE COURT: Do you desire an attorney before you are arraigned?

BY THE DEFENDANT: Yes, Your Honor.

BY THE COURT: Have you means to employ an attorney by yourself?

BY THE DEFENDANT: No, your Honor, I do not.

BY THE COURT: Do you desire this Court to appoint an attorney for you?

BY THE DEFENDANT: Yes, your Honor, at this time.

BY THE COURT: I see. What do you mean, "at this time?"

BY THE DEFENDANT: Maybe in the future I will be able to obtain, through relatives or something, one.

BY THE COURT: I see. You recognize the fact that you are here today so that you may have an immediate hearing. Is that correct?

BY THE DEFENDANT: Yes, Your Honor.

BY THE COURT: But you desire now that the Court will make an appointment of an attorney for you before you have either the arraignment or a hearing in this case? Is that correct?

BY THE DEFENDANT: Yes, Your Honor.

BY THE COURT: Now, Mr. Jordan, you have told the Court that you would rather not enter a plea to that charge, be arraigned on this particular charge, until you've had an attorney appointed.

BY THE DEFENDANT: Well, Your Honor, I'll plead at this time. I already know what my plea is going to be.

BY THE COURT: Now, that's left with you, if you voluntarily desire to enter a plea, or the Court will appoint an attorney, and you can wait until you've conferred with the attorney before you enter your plea if you desire.

BY THE DEFENDANT: Yes, I'll wait until I confer with him.

BY THE COURT: All right, sir.

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MR. NECAISE: Let me say, if Your Honor please, that the State of Mississippi is ready and can go forward today, at this time, with a preliminary hearing.

BY THE COURT: I assume that that is a fact, and that's the reason why I want this defendant to know that he is entitled to that hearing if he desires it at this time, or you do have the right to pass that until you have an attorney, and that's what you desire to do? Is that correct?

BY THE DEFENDANT: I prefer to have the attorney here that-

BY THE COURT: All right.

Does the defendant have anything further he would like to take up with the Court?

BY THE DEFENDANT: Not at this time, Your Honor.

BY THE COURT: All right. Your attorney will then confer with Mr. Necaise after this to ascertain when a hearing can be had if you desire one. Do you...

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