Alderman v. Austin

• Citation: 695 F.2d 124
• Decision Date: 10 January 1983
• Docket Number: No. 80-7820,80-7820
• Parties: Jack E. ALDERMAN, Petitioner-Appellee, v. Sam AUSTIN, Warden, Georgia State Prison, Respondent-Appellant. . * Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 124

695 F.2d 124

Jack E. ALDERMAN, Petitioner-Appellee, v. Sam AUSTIN, Warden, Georgia State Prison, Respondent-Appellant.

No. 80-7820.

United States Court of Appeals, Fifth Circuit. ^*

Unit B

Jan. 10, 1983.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for petitioner-appellee.

Bruce H. Morris, American Civil Liberties Union, Atlanta, Ga., for Jack Greenberg, James Nabrit, III, John Charles Boger, Deborah Fins and Anthony G. Amsterdam, NAACP Legal Defense and Educ. Fund, Inc., New York City, for petitioner-appellee.

Joel Berger, New York City, for amicus curiae.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

JAMES C. HILL, Circuit Judge:

On rehearing en banc, ¹ this court reviews a district court determination ² that Jack E Alderman, a prisoner sentenced to death by the State of Georgia for the murder of his wife, should be granted habeas corpus relief under 28 U.S.C. Sec. 2254 (1976). We affirm in part, reverse in part, and remand.

I

The petitioner first asserts that jury exposure to a single comment made by a prosecution witness during trial testimony violated his constitutional rights under the teaching of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). ³ The prosecution had called the witness, Special Agent Keadle of the Georgia Bureau of Investigation, to testify concerning an interview which Keadle held with the petitioner shortly after the petitioner had identified his deceased wife's body. The relevant testimony contained a single reference by Keadle to the fact that the petitioner, at one point in the interview, had expressed his wish to exercise the right to an attorney and the right to remain silent. ⁴

The district court found that the petitioner's exculpatory story was not totally implausible and that the inculpatory evidence was not overwhelming. Applying Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), the court found the Doyle violation was reversible error. 498 F.Supp. at 1142-44. After reviewing the record we find that the district court erred. Assuming that the comment did constitute a Doyle violation, ⁵ the error was harmless.

Chapman attempted to harmonize Fifth Circuit case law concerning Doyle violations and the harmless error test by establishing three categories of cases:

When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.

Where the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.

When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.

547 F.2d at 1249-50 (citations and footnote omitted).

Subsequent Fifth Circuit cases recognized, however, that "many cases lie somewhere in between the categories discussed in Chapman." United States v. Shavers, 615 F.2d 266, 270 (5th Cir.1980). See also Sullivan v. Alabama, 666 F.2d 478, 485 (11th Cir.1982). The in-between cases involve the situation where the "exculpatory story told at trial is not 'totally implausible' yet the indicia of ... guilt are substantial." United States v. Dixon, 593 F.2d 626, 629 (5th Cir.), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1979); accord, United States v. Ylda, 643 F.2d 348, 350 (5th Cir.1981).

The district court believed that this case fell within the second category of cases described by Chapman. However, we believe that the evidence of Alderman's guilt was substantial. ⁶ The Chapman rules do not dispose of this case, therefore, because it is in between the categories Chapman described. ⁷

Having reached that conclusion, we must determine the effect of the error under the case-by-case methodology required by United States v. Davis, 546 F.2d 583, 594-95 & n. 31 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). "The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt." United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir.1978).

Keadle's statement was made during a narrative description of his interview with Alderman. It passed without any objection by the defense. It was not accusatory in nature and was obviously not used for any impermissible purpose such as impeachment. We recognize that in cases such as this, the record must be scrutinized with a skeptical eye for the purpose of discovering whether what would first appear to have been an innocent, narrative statement was actually a planned statement upon which the prosecutor based an argument of guilt. The record reveals no such misuse. Indeed, we have carefully reviewed this record and can find no place during the trial where this testimony was ever referred to again by a witness, the prosecutor, or the judge. In this context, and in light of the substantial evidence against Alderman, we find the alleged error to have been "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

II

As his second allegation of constitutional error, the petitioner asserts that the jury was defective under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The district court agreed that the jury was so defective, and the panel affirmed. The en banc court concludes that the panel's evaluation of this issue was correct and reinstates Parts III and IV of the panel opinion, 663 F.2d at 562-564.

The effect of this holding renders the sentence of death invalid, but does not invalidate petitioner's conviction. Witherspoon, 391 U.S. at 523 n. 21, 88 S.Ct. at 1777 n. 21.

III

The district court's order issuing the writ, on the basis of Witherspoon, is affirmed. The State shall be prohibited from carrying out the sentence in this case unless the petitioner shall be afforded a new sentencing hearing within a reasonable time to be fixed by the district court. The district court's finding of harmful constitutional error on the Doyle ground is reversed. The case is remanded for proceedings not inconsistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED.

TJOFLAT, Circuit Judge, concurring in part and dissenting in part:

I concur in the court's disposition of petitioner's claim under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). I dissent, however, from the holding that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), requires a new trial in the penalty phase of the case.

Witherspoon v. Illinois authorizes a state trial judge in a capital case to excuse for cause any prospective juror who declares that he would "automatically vote against the imposition of capital punishment," id. at 522, n. 21, 88 S.Ct. at 1777, n. 21; a judge may also excuse one whose views regarding capital punishment "would prevent or substantially impair the performance of his duties...." Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). In deciding whether a venireman should be excused for cause, the trial judge focuses on the voir dire examination of the venireman concerning his views on the death penalty and the extent to which they might influence his verdict. The judge also considers the demeanor of the venireman exhibited during that examination. Sometimes the judge's decision on a challenge for cause is a close call, especially when the venireman's statements about capital punishment and his ability to follow the court's final instructions on the law seem irreconcilable. In such a case, the demeanor of the venireman may be the best indication of which response is the true one. In this case, the record convinces me that the trial judge reached his decisions by weighing the venireman's testimony and considering his demeanor; he found that the venireman's statement that he could vote for the death penalty, if warranted, was not worthy of credence.

The panel, which the en banc court now upholds, set aside this finding in each instance because the trial judge based it on evidence the panel considered inadmissible on the Witherspoon issue--the venireman's statement that he could not vote for the death penalty if he were required to sign a verdict to that effect as foreman of the jury. In the panel's view, "[w]hether a venireman could sign, in good conscience, a verdict that would result in a defendant's execution is immaterial to jury service under Witherspoon." Alderman v. Austin, 663 F.2d 558, 563 (5th Cir.1981). The panel accordingly disregarded such evidence and considered only the venireman's statement that he would be willing to vote for the death penalty in a proper case. Standing alone, such a statement obviously precluded an excuse for cause.

What concerns me about the court's approach to its Witherspoon decision in this case is that it seriously curtails the prosecution's right to test the accuracy of a prospective juror's statement that he is...