O'Bryan v. Estelle

• Decision Date: 26 August 1983
• Docket Number: No. 82-2422,82-2422
• Citation: 714 F.2d 365
• Parties: Ronald Clark O'BRYAN, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 365

714 F.2d 365

Ronald Clark O'BRYAN, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 82-2422.

United States Court of Appeals,

Fifth Circuit.

Aug. 26, 1983.

Dissenting Opinion Aug. 30, 1983.

Stanley G. Schneider, Will Gray, Houston, Tex., for petitioner-appellant.

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

David Crump, The Legal Foundation of America, South Texas College of Law, Houston, Tex., amici curiae for Texas Dist. and County Attys. Ass'n.

Nicholas E. Calio, Washington, D.C., amici curiae for Washington Legal Foundation.

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

Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER^*, District Judge.

RANDALL, Circuit Judge:

Ronald Clark O'Bryan was convicted of the murder of his own child in a Texas state court in 1974 and sentenced to die. On appeal from the federal district court's denial of habeas corpus relief, 28 U.S.C. § 2254 (1976), the defendant contends:

(1) that the exclusion of three jurors who expressed conscientious objections to the death penalty violated the rule of (2) that the Texas death penalty procedure is unconstitutional because it does not provide for jury instructions concerning mitigating circumstances;

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);

(3) that the defendant's constitutional rights were violated when the trial court permitted the prosecutor to comment on defense counsel's failure to ask defense witnesses certain questions about the defendant's reputation; and

(4) that the trial court's refusal to instruct the jury on the law governing parole as it relates to persons sentenced to life imprisonment violated the defendant's due process rights.

While we are compelled to recognize that O'Bryan has raised a serious challenge to the exclusion of two of the three jurors under Witherspoon, we conclude that the district court's denial of habeas corpus relief should be affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND.

O'Bryan was convicted of murdering his eight-year-old son, Timothy, for remuneration or the promise thereof, namely, the proceeds from a number of life insurance policies on Timothy's life. See Tex.Penal Code Ann. § 19.03(a)(3) (Vernon 1974). ¹ The facts of this case as adduced at trial are set forth in detail in the Texas Court of Criminal Appeals' disposition of O'Bryan's direct appeal. O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). We have summarized them briefly here.

The record reflects that O'Bryan, who worked as an optician at Texas State Optical Company, had serious financial problems. The family was delinquent on a number of loans and had been forced to sell their home to meet their most pressing obligations. O'Bryan discussed his financial burdens with friends and acquaintances, informing some of them that he expected to receive some money by the end of the year. Despite his financial difficulties, O'Bryan substantially increased the life insurance coverage on his two children, Timothy and Elizabeth Lane, during 1974. By mid-October there was $30,000 worth of coverage on each child, while the coverage on O'Bryan and his wife was minimal.

In August, 1974, O'Bryan tried unsuccessfully to obtain cyanide where he worked. In September, he called a friend who worked at Arco Chemical Company, and the two discussed the varieties and availability of cyanide. O'Bryan continued to discuss cyanide among his fellow employees at Texas State Optical. Shortly before Halloween, O'Bryan appeared at Curtin Matheson Scientific Company, a chemical outlet in Houston. When he discovered that the company had cyanide available only in large quantities, O'Bryan asked the salesperson where he could obtain a smaller amount.

On Halloween, Thursday, October 31, 1974, the O'Bryan family dined at the home of the Bates family. The children of both families had planned to go "trick or treating" together in the Bates' neighborhood. The defendant and Mr. Bates accompanied O'Bryan's children and Bates' son on the Halloween outing. When the party arrived at the Melvins' home, the lights were out, but O'Bryan and the children went up to the home anyway. When no one answered the door, the children went on to the next house; O'Bryan remained behind for about thirty seconds. He then ran up to the children, "switching" at least two "giant pixy styx" in the air and exclaiming that "rich neighbors" were handing out expensive After the Halloween festivities had been completed, O'Bryan took his children home, while his wife went to visit a friend. O'Bryan informed the children that they could each have one piece of candy before going to bed; Timothy chose the pixy stick. The boy had trouble getting the candy out of the tube, so O'Bryan rolled the stick in his hand to loosen the candy for his son. When Timothy complained that the candy had a bitter taste, O'Bryan gave him some Kool-Aid to wash it down.

                treats.   O'Bryan offered to carry the pixy styx for the children.   Back at the Bates' home, O'Bryan distributed the pixy styx to his and Bates' two children, and gave a fifth stick to a boy who came to "trick or treat" at the door
                

Timothy immediately became ill and ran to the bathroom, where he started vomiting. When Timothy became sicker and went into convulsions, O'Bryan summoned an ambulance. Timothy died within an hour after he arrived at the hospital. Cyanide was found in fluids aspirated from his stomach and in his blood. The quantity of cyanide in the blood was well above the fatal human dose.

There was conflicting testimony at trial concerning the extent to which the defendant showed remorse at the hospital and at his son's funeral. During the days following Halloween, O'Bryan gave conflicting stories as to the origin of the pixy styx, but he eventually claimed that the pixy styx came from the Melvin home. Mr. Melvin was at work, however, until late in the evening on Halloween.

O'Bryan was charged with and convicted of capital murder. At the sentencing proceeding, the State reintroduced the evidence that it had presented at trial and the defendant presented nine lay witnesses who stated that they did not believe that O'Bryan was likely to be a danger to society in the future. The jury answered the two special issues affirmatively ² and O'Bryan was sentenced to die.

O'Bryan's conviction and sentence were affirmed by the Texas Court of Criminal Appeals on September 26, 1979. O'Bryan v. State, supra. His application for a writ of certiorari to the United States Supreme Court was denied in 1980, O'Bryan v. Texas, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980), as was his first application for state habeas corpus relief.

In July, 1980, he filed a petition for federal habeas corpus relief, which was dismissed without prejudice so that he could return to state court to present additional unexhausted claims. His second application for state habeas corpus relief was denied on September 1, 1982, and his execution date set for October 31, 1982. On September 29, 1982, O'Bryan filed his second application for federal habeas relief. The district court denied his application for the writ and stay of execution on October 20, 1982. We granted his application for a stay and request for a certificate of probable cause on October 27, 1982. O'Bryan v. Estelle, 691 F.2d 706 (5th Cir.1982).

II. THE WITHERSPOON ISSUE.

At least seventeen persons were excused for cause from serving on the jury on the basis of their opposition to the death penalty. O'Bryan challenges the exclusion of three of them: Jurors Wells, Pfeffer, and Bowman.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court set aside a defendant's death sentence where members of the venire had been excluded solely because they had conscientious scruples against capital punishment. The Court held that a potential juror could not be excused for cause on the basis of his opposition to the death penalty unless he was "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." 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.

                Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21.   Such persons may be excluded only if they make it
                

Id. (emphasis in original). The Supreme Court reasoned that a jury from which all persons who had reservations against imposing the death penalty had been excluded was a jury "uncommonly willing to condemn a man to die." Id. at 521, 88 S.Ct. at 1776.

Both the Supreme Court and this circuit have insisted upon strict adherence to the mandate of Witherspoon. The courts have required a death sentence to be set aside even if only one potential juror has been excluded for opposing the death penalty on grounds broader than those set forth in Witherspoon, see Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Marion v. Beto, 434 F.2d 29, 32 (5th Cir.1970), regardless of whether the state has any peremptory challenges remaining at the close of voir dire. Alderman v. Austin, 663 F.2d 558, 564 n. 7 (5th Cir.1982), aff'd in relevant part, 695 F.2d 124 (5th Cir.1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 678 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Burns v. Estelle, 592 F.2d 1297, 1299 (5th Cir.1979), aff'd, 626 F.2d 396 (5th Cir.1980) (en banc); contra, Davis, supra, 429 U.S. at 124, 97 S.Ct. at 400 (Rehnquist, J.,...