Cummings v. Dugger

• Decision Date: 12 January 1989
• Docket Number: No. 87-3787,87-3787
• Citation: 862 F.2d 1504
• Parties: Joyce Lisa CUMMINGS, Petitioner-Appellant, v. Richard L. DUGGER and Robert A. Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1504

862 F.2d 1504

Joyce Lisa CUMMINGS, Petitioner-Appellant, v. Richard L. DUGGER and Robert A. Butterworth, Respondents-Appellees.

No. 87-3787.

United States Court of Appeals, Eleventh Circuit.

Jan. 12, 1989.

Jake Arbes, Atlanta, Ga., for petitioner-appellant.

Robert Butterworth, Atty. Gen., Sean Daly, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before JOHNSON and CLARK, Circuit Judges, and ZLOCH ^*, District Judge.

JOHNSON, Circuit Judge:

Joyce Lisa Cummings seeks federal habeas corpus relief pursuant to 28 U.S.C.A. Sec. 2254. We affirm the district court's denial of relief.

I.

Cummings was employed by John Bradford at an optical laboratory that he owned. While working at the lab, she became friendly with his wife, Priscilla Bradford, and Janice Gould. Cummings and Gould became aware that Priscilla was being physically abused by her husband John and agreed to help Priscilla plan his murder. Although a number of plans were considered, ¹ the women ultimately decided to help Priscilla attack John when he returned home for dinner one night. They then agreed to help Priscilla inflict bruises on herself so that she could claim she acted in self-defense.

On the evening of March 28, 1980, Cummings, Gould, Priscilla and Eden Bradford (Priscilla's 14 year old daughter by a previous marriage) met at the Bradford's house to execute the plan. The four women waited for John to arrive, attacked him with various kitchen implements, and beat him to death. Priscilla then called the police as planned, claiming she had acted in self-defense. All four women were eventually arrested and charged with the murder of John Bradford. ² Because there was little evidence that Cummings had actually beaten John, ³ the state relied on the theory of vicarious liability to hold Cummings responsible with the others for the killing.

From the time of the murder through Cummings' trial, the case, which was dubbed the "Skillet Slaying" and the "Frying Pan Murder" by the news media, generated extensive pretrial publicity. The newspaper and television coverage included details of the murder, alleged statements made to cellmates by the four women, an alleged plot to kill a state witness, and confessions made by the other defendants.

In light of this publicity, Cummings moved for a change of venue from Titusville in Brevard County, Florida, the place of the murder. The motion was granted and the trial was moved to Sanford in Seminole County, Florida, approximately forty miles inland from Titusville.

When the pretrial publicity continued in Sanford, Cummings moved for a second change of venue. The state trial judge reserved ruling on this motion pending initial voir dire of prospective jurors. ⁴ The trial judge then questioned forty-one potential jurors individually, and dismissed three. Of the remaining thirty-eight jurors, thirty were familiar with the case. The judge then denied the motion for change of venue and allowed the attorneys to proceed with collective voir dire. Of the twelve jurors who were finally chosen, eleven had been exposed to varying degrees of pretrial publicity.

The jury found Cummings guilty of first degree murder and conspiracy to commit first degree murder. She was sentenced to life imprisonment with a minimum mandatory sentence of twenty five years and to a consecutive fifteen year sentence for conspiracy. On direct appeal, she challenged the denial of her motion for change of venue. The state appellate court affirmed her conviction. Subsequently, the state appellate court denied her state habeas petition, which was based on an ineffective assistance of counsel claim.

She then filed a federal habeas petition, challenging the denial of her second motion for change of venue in federal district court. ⁵ The district court denied her petition. On appeal, she makes two claims, both based on the effect of pretrial publicity on the jury venire. She claims that her Sixth Amendment right to an impartial jury and her Fourteenth Amendment right to due process were violated in two ways: by the way the trial judge conducted voir dire and by the denial of her second change of venue motion. We will address these claims in turn.

II.

Cummings' first claim is that the judge conducted constitutionally inadequate voir dire with the result that he was unable to detect the potential prejudice of the individual jurors arising from the pretrial publicity. Jordan v. Lippman, 763 F.2d 1265, 1275 (11th Cir.1985) ("[R]elief is required where there is a significant possibility of prejudice plus inadequate voir dire to unearth such potential prejudice in the jury pool."). ⁶ As a threshold matter, the state challenges this claim as procedurally barred because it alleges Cummings did not specifically raise this claim in any previous state court proceedings. We find no procedural default as to this claim.

The procedural default doctrine ensures that "state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct 509, 512, 30 L.Ed.2d 438 (1971). To avoid procedural default, the defendant must have presented in his state appeal more than just the facts necessary to support his federal constitutional claim: "The substance of a federal habeas corpus claim must first be presented to the state courts." Id. at 278, 92 S.Ct. at 513-14 (emphasis added); see Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (quoting Picard ). However, the Supreme Court has also indicated that courts should exercise flexibility in determining whether defendants have met this requirement. Picard, 404 U.S. at 278, 92 S.Ct. at 513-14; see Mattox v. Dugger, 839 F.2d 1523, 1524 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 92, 102 L.Ed.2d 68 (1988) (defendant need not "[label] his original claims as 'federal' constitutional ones"); Osborne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (specific words not necessary so long as state court has "adequate opportunity to consider a party's objection").

In this case, Cummings argued on direct appeal in state court that the trial court abused its discretion in denying her motion for change of venue. In her state appellate brief, Cummings specifically objected to the trial court's denial of her motion for individual voir dire in light of the prejudicial nature of the pretrial publicity and the effect it might have had on the venire. Although Cummings did not specifically state her federal constitutional claims, she repeatedly cited Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Murphy, the Supreme Court discussed a defendant's claim that he had been denied due process because he was tried by an allegedly partial jury. Although Murphy focused on what the jurors said during voir dire rather than how it was conducted, the Supreme Court was concerned with the effect of pretrial publicity on the ability of the jury to remain impartial during the trial and with the potential violation of the defendant's constitutional rights in the choice of jurors. ⁷ Having presented her claim in this way, she has provided the state courts with an opportunity to review the manner in which the voir dire was conducted as well as the substantive responses given by individual venire persons. Cf. Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984) (issue "obliquely stated" on direct appeal not defaulted if state court was alerted to constitutional issue).

Having ascertained that the claim is not procedurally barred, we turn to the merits. The conduct of voir dire is a matter entrusted to the broad discretion of the trial judge. United States v. Tegzes, 715 F.2d 505, 507 (11th Cir.1983); United States v. Holman, 680 F.2d 1340, 1344 (11th Cir.1982); see also United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981) (noting that Fed.R.Crim.P. 24(a) has been interpreted to give trial court broad discretion in deciding method of jury voir dire). "The standard for evaluating the district court's exercise of its discretion is whether the procedure used for testing juror impartiality created 'a reasonable assurance that prejudice of the jurors would be discovered if present.' " Tegzes, 715 F.2d at 507 (citing Holman, 680 F.2d at 1344); Gerald, 624 F.2d at 1296.

However, the discretion afforded the trial judge to conduct voir dire as he sees fit must be bounded by protection of the defendant's constitutional rights, especially in a situation of extensive pretrial publicity. United States v. Gerald, 624 F.2d at 1295. For example, in United States v. Davis, 583 F.2d 190 (5th Cir.1978), the former Fifth Circuit reversed the conviction of a defendant who had been the subject of extensive pretrial publicity. The Court held that, in a case where all the jurors had been exposed to some pretrial publicity, simply asking members of the jury venire to indicate by a show of hands whether the publicity would impair their ability to render an impartial decision did not adequately protect the defendant's constitutional rights. Id. at 196.

The preferred approach in such cases, as discussed in Davis, is to conduct individual examination of the jurors. Id. at 196-98 (citing ABA Standards Relating to Fair Trial and Free Press, which recommends individual voir dire in these cases); Coleman v. Kemp, 778 F.2d at 1542 (citing ABA Standards with approval); Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976) (juror statements as to impartiality made more credible by conduct of individual voir dire). Individual voir dire allows the trial court to probe the effect of any adverse publicity on the juror...