Alderman v. Austin, 80-7820

• Decision Date: 11 December 1981
• Docket Number: No. 80-7820,80-7820
• Citation: 663 F.2d 558
• 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 558

663 F.2d 558

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 ^*

Dec. 11, 1981.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

Bruce H. Morris, Atlanta, Ga., for petitioner-appellee.

Joel Berger, NAACP Legal Defense and Educ. Fund, Inc., New York City, for amicus curiae.

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

Before MARKEY ^**, Chief Judge, and HILL and THOMAS A. CLARK, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Jack E. Alderman was indicted, tried, convicted, and sentenced to death by electrocution for the 1974 murder of his wife, Barbara J. Alderman. Following unsuccessful direct attacks ¹ upon his conviction and sentence, Alderman petitioned through the state court system for writ of habeas corpus. These collateral attacks too failed. But upon Alderman's petition for federal relief, see 28 U.S.C. § 2254 (1976), the United States District Court, Southern District of Georgia, granted the writ. We affirm in part, reverse in part, and remand, 498 F.Supp. 1134.

I.

Petitioner, on September 19, 1974, approached his close friend John A. Brown for assistance in murdering petitioner's wife. Petitioner offered Brown compensation: the two were to split the proceeds of Mrs. Alderman's life insurance policy. Several days hence petitioner summoned Brown to the Aldermans' apartment, handed him a 12-inch crescent wrench, and instructed Brown to hit Mrs. Alderman. Brown was reluctant but was persuaded by the point of petitioner's gun. Brown entered the dining room where Mrs. Alderman stood and struck her head with the wrench. She screamed and ran to the living room only to confront her husband who brought her to the floor and held her down. Petitioner and Brown began to strangle Mrs. Alderman, stopping only after she passed out. Petitioner then filled a bathtub with water. Mrs. Alderman was dragged into the bathroom and placed in the tub with her face submerged.

The two men left the apartment for several hours. When they returned, they removed Mrs. Alderman's body from the tub, rolled it in a quilt, and placed it in the trunk of her car. Brown drove the car; petitioner followed on a motorcycle. Alongside a creek in Rincan, Georgia, the body was taken from the trunk and placed in the driver's seat. The car brake was released allowing the car to roll into the creek where it and the body were soon discovered.

At trial, petitioner denied he killed his wife. ² His testimony was that he quarreled with his wife on the evening of her death. Later that evening, he drove his motorcycle to her grandmother's house in search of her. On the way, petitioner testified, he passed the Rincan, Georgia creek and observed the family car in it. He went down to the creek, saw his deceased wife, cradled her head in his lap thereby staining his clothing with the blood later noticed by police, and fled the scene in shock and fear.

The jury determined guilt accompanied by two statutory aggravating circumstances: (1) Ga.Code Ann. § 27-2534.1(b)(4), i. e., murder "committed ... for the purpose of receiving money or any other thing of monetary value"; and (2) Ga.Code Ann. § 27-2534.1(b)(7), i. e., murder which was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."

Petitioner's habeas corpus action alleges constitutional error, committed by the state court, on two grounds. First, he asserts that jury exposure to a single comment made by a prosecution witness during trial testimony violated the teaching of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its lineage. Second, he argues that his jury suffered from defects of the type held violative of due process in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We proceed to analyze the facts and law involved in these contentions.

II.

At petitioner's state court trial, the prosecution called Georgia Bureau of Investigation special agent H. H. Keadle to testify concerning Keadle's interview with petitioner held shortly after petitioner had identified his wife's body at the Effingham County, Georgia, Hospital. The relevant testimony ³ contained a single reference by Keadle to the fact that petitioner, at one point in the interview, had expressed his wish to exercise the right to an attorney and to remain silent. Keadle's reference was neither solicited by the prosecutor, objected to by the petitioner's attorney, nor mentioned again in the course of trial.

Petitioner first raised this issue on direct appeal to the Supreme Court of Georgia, which was unimpressed with it on several levels. ⁴ Petitioner argues here, as he did with success in the district court, that he was under "custodial interrogation," see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), at the time of his interview with Agent Keadle. Such being the case, his exercise of guaranteed constitutional rights was permitted to haunt him at trial.

The district court studied the evidence and found the alleged constitutional error harmful. We disagree. The standard employed by the district court, purportedly but incorrectly drawn from 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), explains the court's mistaken impression that the error was not harmless. Chapman held that:

When 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.

547 F.2d at 1249 (emphasis added). The district court relied on similar language, appearing elsewhere in Chapman and describing yet another case, United States v. Impson, 531 F.2d 274 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978), for the proposition that a petitioner's exculpatory theory must be totally implausible and the indicia of his guilt not overwhelming. Applying the test conjunctively rather than disjunctively, the district court erred. For in this case, the indicia of guilt clearly was overwhelming, and here, as in Chapman, the harmless error presented itself in a single, isolated response by a witness during trial testimony. Moreover,

... Neither the prosecutor nor any prosecution witness tied together the fact of (petitioner's) silence with his improbable story. The jury was never told that silence could be used for impeachment purposes. Neither in cross-examination nor in argument did the prosecutor suggest that silence impeached (petitioner's) trial testimony.

Id. See also United States v. Shavers, 615 F.2d 266, 270 (5th Cir. 1980). The error here involved is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III.

Petitioner persuaded the federal district court that he had been convicted by a state court jury whose composition was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Knowing that he intended to ask that petitioner be executed, the prosecutor for the State of Georgia on voir dire probed each venireman as to his views on capital punishment. In order to exclude from the jury those veniremen who would not vote to inflict death, the prosecutor propounded a series of penetrating questions to each. Specifically, the inquiry was whether a venireman regardless of his overall feelings about the death penalty could, if called upon to act as jury foreman, actually sign his name to the verdict. Three prospective jurors were reticent on this point. The colloquy involving one of them is demonstrative:

Q. (A) little while ago ... you stated that you were not conscientiously opposed to capital punishment. Now, under Georgia law, if you believe from the evidence and the Charge of the Court that the death penalty was called for under the facts of this case, could you vote yes to inflict the death penalty?

A. Yes.

Q. You feel that you could?

A. Yes.

Q. All right, now, going a step further with this ..., if you were selected to serve as foreman on this jury and the other eleven jurors believed that the evidence and the law required that the death penalty was proper and should be voted for in this case, could you, as foreman of the jury, following instructions given you by Judge Cheatham, write out the verdict on the indictment and sign your name to it as foreman?

A. I don't know. I don't think I could do that.

Q. I beg your pardon?

A. No, I don't believe I could do that.

Q. You don't believe you could do that?

A. No.

Q. Even though the judge instructed that if you believed from the evidence that the death penalty was warranted and you were the foreman of the jury, you could not write it out?

A. No.

MR. DREW: If your Honor please-

THE COURT: Why not?

A. I don't know. I just wouldn't want to convict anybody. I'd feel guilty.

THE COURT: Well, you would have already convicted him and as foreman, it's your responsibility-let us assume that you had convicted him-as foreman, it would be your responsibility to write that out; you say you couldn't do that?

A. No.

....

THE COURT: She has already said that she could vote to convict him .... and could vote to give him the death penalty, but could not write it out. What's the difference in your mind? ....

A. I don't know. This would be on my conscience. I just couldn't write it out.

Record, Vol. III, at 936-38. Two other veniremen responded in similar fashion. Following each...