Burton v. Johnson

Decision Date01 November 1991
Docket NumberNos. 90-2016,90-2019,s. 90-2016
Citation948 F.2d 1150
PartiesShirley BURTON, Petitioner-Appellee, Cross-Appellant, v. Sharon JOHNSON, Respondent-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Charles H. Rennick, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him, on the brief), Santa Fe, N.M., for respondent-appellant, cross-appellee.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellee, cross-appellant.

Before McKAY, Chief Judge, ANDERSON, Circuit Judge, and BROWN, Senior District Judge.

WESLEY E. BROWN, Senior District Judge. *

Appellant Sharon Johnson, Warden for the State of New Mexico, appeals the order of the United States District Court for the District of New Mexico, granting Shirley Burton's petition for a writ of habeas corpus. Mrs. Burton cross-appeals from the order insofar as it denied some of the claims for relief contained in her federal petition.

Shirley Burton admitted that in the early hours of August 14, 1983, she shot and killed her husband, Robert Burton, in Roswell, New Mexico. She claimed that she did so because she believed from his past actions that she and her children were in immediate danger of great bodily harm, sexual abuse and death at the hands of her husband. She presented evidence of Robert's repeated physical, sexual and verbal assaults upon her and her two children, together with evidence that she suffered from "battered woman's syndrome," which contributed to her belief that she had to kill her husband in order to protect her children and herself from continued abuse. The state introduced evidence that Robert did not abuse his family, and that Mrs. Burton, having carefully planned the murder in advance, did not act in defense of herself and children. The jury convicted Mrs. Burton of murder in the first degree, and she was sentenced to life imprisonment. 1

The issues presented in this appeal concern the manner in which the state trial court conducted the voir dire of the jury panel, and the discovery after trial that one of the jurors who served on the case was the victim of mental and physical abuse by her husband, and that this juror's children had also been abused by their father. Other issues involve the propriety of instructions and the claim that alleged cumulative error denied Mrs. Burton's right to fair trial.

The federal district court adopted the findings of the magistrate and found that Mrs. Burton's right to an impartial jury had been denied because a woman who served on the jury had suffered abuse in her own family. In addition, the court found that inadequate voir dire proceedings denied Mrs. Burton's right to an impartial jury and fair trial. The state elected not to retry Mrs. Burton within the 90 days allotted by the federal district court, she was released from custody, and is free pending this appeal.

The circumstances of the voir dire and other state court proceedings relating to Mrs. Burton's trial and conviction may be described as follows:

Because of the nature of her defense, Mrs. Burton's counsel filed a pretrial motion for individual, sequestered questioning of the jury panel on subjects pertaining to physical, emotional and sexual abuse of wives and children. 2 Attached to this motion was an affidavit of an expert in group dynamics and the jury selection process which related to the hesitancy of people to speak about sensitive subjects when others are present. It was the opinion of this expert that "(i)n a trial with inflammatory issues and one in which potentially many of the members of the venire have attitudes or prejudices that could be hidden during the voir dire, the only possibility of obtaining a fair trial would be through extensive, open-ended, attorney-conducted, sequestered voir dire." Vol. I, State Record, Page 100, Affidavit of Bennett.

At a hearing on this motion, the defense presented expert testimony to the effect that in the area of sensitive topics, members of the venire tend to make socially acceptable statements, and that in order to inquire into such topics as sexual abuse and wife beating, each prospective juror should be questioned separately, outside the hearing of other prospective jurors. This expert testified that over 20% of the American adult population has personally encountered a sex abuse or wife-battering situation, and that such people are not able to evaluate evidence of similar situations in an objective manner because an abused person tends to blame herself, and thus would judge the defendant in this case more harshly than would a juror without such personal experience or exposure to an abusive situation. Tape 2, 7/19/84, State Record.

The trial judge denied the defense motion to sequester and question each juror privately on sensitive matters. Instead, the court divided the jury panel into two groups, each to be voir dired as a whole, with a statement by the court advising that any juror could answer questions in private. Each party's voir dire was to be limited to one hour, with a possible extension if the attorney used his time "diligently." The defense request that the panel be required to complete a jury questionnaire was denied. 3

The panel was divided into two groups with 29 prospective jurors in each. The court informed the first group that they could answer questions in private, but that he preferred answers in open court because inquiries in chambers were difficult. Tapes 1 and 2, 7/24/84, State Record. Any juror who had discussed the case was questioned in chambers. Defense counsel questioned this panel about their attitudes concerning child abuse and neglect, and asked the entire panel if any of them had seen the effects of child abuse. Four answered affirmatively and discussed their experiences. Wife abuse was also discussed and counsel sought juror's opinions on self defense, etc. Defense counsel was stopped after one hour, and his request for more time to examine the panel about their knowledge of Robert Burton, potential witnesses and exposure to publicity was denied upon the ground that counsel had not been "diligent." Tape 5, and Chambers Tapes C & D, 7/24/84.

One of the jurors in this panel, Lisa Zoeller, told the court in chambers that she could not be an impartial juror because her father had abused her mother and the children, but her mother had not killed her father. Chambers Tape C. The juror Zoeller was excused by the court for "Cause." Vol. II, State Record, p. 191.

There was a similar voir dire of the second group, except that this time, the court asked more specific questions about publicity and their knowledge of prospective witnesses. Defense counsel told the members of this panel that any questions on sensitive subjects could be answered privately in chambers, and he then discussed child abuse, rape, wife beating, the reporting of violent acts against women and the subject of self-defense. Defense counsel specifically asked which jurors had personally seen the effects of child abuse. Carolyn Green answered that she had worked for a school where most of the staff and children had been abused in some way, describing the effects of child abuse which she had observed. Counsel then asked whether anyone else had "seen those kinds of, (sic), or had contact with child abuse or sexual abuse?". There was no answer. Tape 8, State Record. Counsel again asked at a later time if there were "anybody else who has anything that they'd like to share either with the court individually or with me at this time in terms of the things we've talked about? ... We've talked about child abuse. We've talked about battered wives and other things." There was no response. No member of this panel discussed abuse in chambers. The defense challenged juror Green for cause upon the ground that she had experienced violence in her home, rape, and contact with abused children. The challenge for cause was granted, and Green was removed from the panel. Another juror in this panel, Mrs. Russell, was excused by the Court for cause because of her opinions about child abuse after having read an El Paso Times article. Vol. II, State Record, pp. 190 and 329.

At trial Shirley Burton and other witnesses testified about the violent and abusive nature of Robert Burton. 4 The jury heard evidence that during prior marriages, Burton had beaten two other wives and raped one of them, and had sexually molested a stepdaughter. Defendant Shirley Burton testified that during her marriage to Robert Burton she was beaten, raped and sodomized by her husband, and that he frequently beat their son, Gene, and her daughter, Elizabeth whom he had legally adopted. The children were beaten with fists, whips, rope, halter, belts, or whatever was handy. Mrs. Burton testified that she had tried to leave Robert several times, but had returned because of threats to her children, and that she had not contacted the police for protection because of his threats of retaliation if she did so. In January, 1983, Mrs. Burton learned that Robert had been sexually molesting Elizabeth and his son Gene for the past ten years. At trial, Elizabeth testified that her father had raped her twice and attempted to rape her on other occasions. Mrs. Burton obtained a gun and hid it under the mattress on her side of the bed, but Robert found it. The abuse continued. In May, 1983, Mrs. Burton returned home and found Robert attempting to rape Elizabeth. Mrs. Burton was then badly beaten and sodomized. In June, 1983, Robert cut Mrs. Burton with a knife and stitches were required. On August 12, 1983, Robert again attacked Elizabeth, and knocked her to the ground. On August 13, Mrs. Burton traveled 70 miles to Ruidoso and obtained a gun. She testified that her purpose was to stop Robert from hurting or killing her children and herself. She stopped on her way back home to Roswell and test-fired the gun. When she arrived in Roswell she parked three blocks from home, walked through the back gate,...

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