Porter v. Estelle

• Decision Date: 18 July 1983
• Docket Number: No. 82-2499,82-2499
• Citation: 709 F.2d 944
• Parties: Henry Martinez PORTER, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 944

709 F.2d 944

Henry Martinez PORTER, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 82-2499.

United States Court of Appeals, Fifth Circuit.

July 18, 1983.

Douglas Tinker, Corpus Christi, Tex., A. Deniz Tor, Gelberg & Abrams, John A. Herfort, Andrea G. Hirsch, Edward M. Chikofsky, New York City, for petitioner-appellant.

Mark White, Atty. Gen., Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN and TATE, Circuit Judges, and STAGG(fn*), District Judge.

TATE, Circuit Judge:

This is an appeal from the district court's denial, without an evidentiary hearing, of the petition of Henry Porter, a Texas prisoner, for a writ of habeas corpus, 28 U.S.C. Sec. 2254, with respect to his conviction for capital murder and the imposition of the death penalty. This federal habeas application asserts that certain errors of constitutional dimensions occurred during the 1979 state trial of Porter that resulted in his conviction and death penalty, which was affirmed at Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982). ¹

On the present appeal, Porter contends that the district court erred in failing to afford him habeas relief, or at least an evidentiary hearing, because under the showing made the conduct of the trial in the Texas state court had deprived him of various constitutional rights due to: (1) the exclusion of venirepersons who were only equivocally opposed to the death penalty; (2) the rejection of the defendant's request for a psychiatric examination to determine his competency to stand trial because the defendant had insisted that the results of the examination be barred from the penalty hearing; (3) the admission of extrinsic offense testimony by his victim in a prior crime; (4) the introduction of evidence of an alleged oral confession by the defendant; and (5) the prosecution's reference in closing argument to the fact that Porter's out-of-court exculpatory written statements were not made under oath, an alleged comment upon his failure to testify. Finding no reversible merit in these contentions, we affirm the dismissal of the petitioner Porter's habeas petition.

We shall first discuss I. the Juror-Exclusion and II. the Competency Psychiatric Examination issues, before setting forth the factual context in which the other three contentions of error in the guilt/innocence trial arises: III. Evidentiary Objections: A. Introduction of an Extrinsic Offense and B. Introduction of an Oral Confession; and IV. the Prosecutor's Alleged Comment upon the Accused's Failure to Testify.

I. Juror Exclusion

Porter contends that six prospective jurors were disqualified from serving in his trial, in violation of the principles enunciated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Supreme Court there held that the state may not exclude venirepersons from jury service in capital cases unless they make

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 an impartial decision as to the defendant's guilt.

391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 2 (emphasis in original). Improper exclusion of even one juror on Witherspoon grounds removes from the state the power to impose the death penalty. As stated in Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976),

Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 2, [Witherspoon ], he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.

In determining whether an unequivocal belief against the penalty has been expressed, we have held that "[o]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Witherspoon grounds." Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979), affirmed, 626 F.2d 396, 398 (5th Cir.1980) (en banc). The trial court must ascertain that the venireperson who opposes capital punishment can put aside his personal convictions against the sanction and "do his duty" as a juror. See Witherspoon, supra, 391 U.S. at 515 n. 7, 88 S.Ct. at 1773 n. 7. Thus, in Burns we held that the trial court could not, without further questioning, exclude a juror merely because she admitted that the death penalty would "affect" her deliberations at the guilt/innocence phase of trial "on any issue of fact," 626 F.2d at 397-98 & n. 2, and we noted that even a "fixed opinion against" the death penalty was not per se disqualifying, 592 F.2d at 1299. Similarly, in Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), cert. denied, 455 U.S. 1003, 1007, 102 S.Ct. 1636, 1644, 71 L.Ed.2d 870, 875 (1982), a venireman's responses that he did not "think" he could vote for the death penalty, and did not "feel like he could take life in that manner" were insufficient to constitute a resolve to vote automatically against the imposition of capital punishment. 655 F.2d at 677. When there remains any ambiguity about the juror's unequivocal rejection of the penalty, further questioning is necessary to determine whether the juror could put aside his opposition. Burns, 626 F.2d at 398.

In Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), we noted that on federal habeas review "[c]lose scrutiny of the voir dire examination of each juror" whose exclusion is now challenged is warranted, 679 F.2d at 384, to determine whether "the stiff requirements of Witherspoon and its progeny", 679 F.2d at 386, are met.

In Williams, supra, an excused juror had initially indicated mere uncertainty as to whether she could return a verdict requiring the death penalty, and had equivocated in her response to a question as to whether she could ever return such a verdict. Nevertheless, on examining these responses in the context of the entire voir dire examination of the juror, the en banc majority concluded that "automatic opposition to the death penalty [was] established," despite these uncertain and equivocating responses, when they were "viewed in conjunction with [the juror's] previous statement of clear opposition to the death penalty." 679 F.2d at 385. In reviewing whether the juror could in the light of her entire voir dire examination be determined to be merely equivocal or vacillating with regard to the death penalty (rather than unalterably opposed to it), the en banc majority rejected the contention that under Witherspoon "exclusion of a venireman is impermissible unless he states in response to all questions that he absolutely refused to consider the death penalty". 679 F.2d at 386 (emphasis added). In affirming the exclusion of the juror, the court concluded

Witherspoon and its progeny do not mandate that a prospective juror aver that she would refuse to consider the death penalty in every case that could possibly arise. If she knows enough about the case to know that she could not consider imposition of the death penalty regardless of what evidence might be presented, she must be excused.

679 F.2d at 385-86. See also Bell v. Watkins, 692 F.2d 999, 1007-08 (5th Cir.1982).

We have closely scrutinized in the light of the above principles the voir dire examination of each of the six prospective jurors alleged to have been excluded in violation of Witherspoon. We will not reiterate the details of each juror's examination, since those are accurately summarized by the Texas Court of Criminal Appeals in its thorough analysis, Porter v. State, supra, 623 S.W.2d at 377-79, as well as by the district court in its memorandum opinion denying federal habeas relief. In each case, the prospective juror on direct examination had emphatically and unequivocally stated a refusal to vote for a verdict that would result in the death penalty. In his cross-examination of the juror, defense counsel properly sought to show that the juror could put aside his personal convictions and do his duty as a juror, and thus was qualified to serve in this capital case. On the basis of the respective jurors' responses to these (mostly) general questions as to a willingness to do his duty, Porter argues that these jurors were merely vacillating and equivocal and were not shown to be irrevocably opposed to voting for a verdict that would require the death penalty in this case.

Despite Porter's not unforceful arguments, we find no error in the previous courts' determinations that, based upon the voir dire examination of each juror as a whole, the state trial judge properly excused for cause each of the six jurors because he or she was shown to be irrevocably committed to vote against imposing the death penalty in the prosecution against Porter then under way.

On the present appeal, Porter particularly emphasized the alleged Witherspoon violations in the excusing for cause the prospective jurors Herndon and Rice.

On prosecution direct examination, the juror Herndon repeatedly expressed long-standing convictions against the death penalty that would require her to vote automatically against the death penalty no matter what the trial revealed. On defense cross-examination, she replied to the first two questions by stating that there was no way for the defense counsel to have her agree that the death penalty was possible in any case. The third and final defense question was to ask...