Darden v. Wainwright, 81-5590

• Decision Date: 23 July 1985
• Docket Number: No. 81-5590,81-5590
• Citation: 767 F.2d 752
• Parties: Willie Jasper DARDEN, Petitioner-Appellant, Cross-Respondent, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellee, Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 752

767 F.2d 752

Willie Jasper DARDEN, Petitioner-Appellant, Cross-Respondent, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections State of Florida, Respondent-Appellee, Cross-Petitioner.

No. 81-5590.

United States Court of Appeals Eleventh Circuit.

July 23, 1985.

Rehearing En Banc Denied Aug. 27, 1985.

Robert Augustus Harper, Jr., John Perry, Tallahassee, Fla., for petitioner-appellant, cross-respondent.

Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee, cross-petitioner.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge. ^*

PER CURIAM:

Willie Jasper Darden was convicted of murder and sentenced to death in Florida. After exhausting his direct and collateral appeals in state court, he sought federal habeas corpus relief. The district court denied his petition. A panel of this court, considering and rejecting three constitutional claims, affirmed that denial, with one judge dissenting. Darden v. Wainwright, 699 F.2d 1031 (11th Cir.1983). Upon rehearing en banc, this court reversed, holding that the trial court's exclusion of one of the venirepersons from jury service was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Darden v. Wainwright, 725 F.2d 1526 (11th Cir.1984) (en banc).

On February 19, 1985, the Supreme Court vacated this court's en banc decision and remanded the case for further consideration in light of Wainwright v. Witt, 469 U.S. ----, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Having undertaken such a review under the standards announced in Witt, we conclude that Witt controls the juror exclusion issue in this case. Under the Witt standards, Darden is not entitled to habeas corpus relief. Accordingly, we affirm the district court's denial of Darden's habeas corpus petition, and we reinstate the panel opinion, 699 F.2d 1031, as to all issues, except the juror exclusion issue.

The dissent maintains that the facts of Witt are distinguishable and concludes that the state trial judge's decision to exclude juror Murphy in this case violates the standards announced in Witt. The dissent would hold that the trial judge applied an erroneous legal standard. We disagree. In his question to juror Murphy, the trial judge asked: "Do you have any moral or ... religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?" The legal standard articulated in Witt provides that a prospective juror may be excluded if the trial court is left with the definite impression that the juror's views would prevent or substantially impair the performance of the juror's duties in accordance with the instructions and oath. Although the dissenting judges in this case properly point out that a juror with strong conscientious objections to the death penalty might well be able to lay aside those objections and follow the law, it is nevertheless true that the difficulties such a juror would experience in doing so might well rise to the level of a "substantial impairment" of his performance as a juror. Thus, although the question posed to juror Murphy may not have been ideal, we cannot conclude that it was inconsistent with the "substantial impairment" test articulated in Witt. Moreover, as the dissent readily acknowledges, the trial judge did articulate an unquestionably correct legal standard on many other occasions during the voir dire. Thus, we must conclude, as did the Supreme Court in Witt, 469 U.S. at ----, 105 S.Ct. at 855-57, 83 L.Ed.2d at 856-57, that the state trial judge applied the correct legal standard.

Having concluded that the trial judge employed the correct legal standard, the voir dire record with respect to juror Murphy provides fair support for the trial judge's decision to exclude Murphy. In Witt, the Supreme Court held that there was fair support in the record to support the trial judge's decision to exclude juror Colby. The voir dire record with respect to Colby established merely that Colby thought that her personal beliefs would interfere with her sitting as a juror.

In this case, the voir dire record with respect to juror Murphy establishes that juror Murphy had moral or religious principles in opposition to the death penalty so strong that he would be unable to vote for the death penalty regardless of the facts without violating his principles. The dissent correctly points out that the record does not establish whether or not Murphy would have been able to lay aside his principles and follow the law. However, the voir dire record with respect to juror Colby in Witt contained the same flaw, i.e., the record was silent as to whether juror Colby could have laid aside her personal beliefs and followed the law. The record established merely that juror Colby's beliefs would interfere with her sitting as a juror. The Supreme Court in Witt held that that provided a sufficient factual basis for the trial judge's decision to exclude juror Colby. We cannot conclude that there is less factual support in this case. In other words, principles so strong that a juror would be unable without violating his principles to vote for the death penalty is at least as strong a factual basis for an exclusion decision as principles that would interfere with one's sitting as a juror.

The Supreme Court in Witt also relied upon two additional factors, the trial judge's opportunity to observe the juror's demeanor, and the lack of objection by defense counsel. Noting that defense counsel did not object to the exclusion of juror Colby, the Supreme Court suggested that no one in the courtroom questioned the fact that juror Colby's beliefs prevented her from sitting, and that, although not disclosed clearly on the record, it may have been readily apparent to those in the courtroom that she was properly disqualified. Similarly, in this case, the trial judge had the same opportunity to observe juror Murphy's demeanor, and Darden's trial counsel did not object to the exclusion of juror Murphy.

Thus, we conclude that Wainwright v. Witt compels the holding in this case that the voir dire record with respect to juror Murphy does constitute fair support for the trial judge's decision to exclude the juror.

AFFIRMED.

TJOFLAT, Circuit Judge, specially concurring:

I agree with the court's decision to affirm the district court's denial of habeas corpus relief, though for different reasons. As I wrote in dissenting to our previous en banc disposition, Darden v. Wainwright, 725 F.2d 1526, 1533 (1984), the district court should have dismissed the habeas petition in this case because it contained several unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); Galtieri v. Wainwright, 582 F.2d 348, 354 (5th Cir.1978) (en banc). As for the merits of petitioner's Witherspoon claim, assuming it to be properly before the court, I would reject the claim for want of a showing by petitioner of "cause" and "prejudice" under Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977), since petitioner denied the Florida Supreme Court an opportunity to pass on it in reviewing his conviction and death sentence on appeal. Darden v. Wainwright, 725 F.2d at 1544-51 (Tjoflat, J., dissenting). Were I to consider four square the precise Witherspoon claim petitioner now presents to us, I would agree with the court that Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844 (1985), requires us to hold that the state trial judge did not violate the Constitution in excusing venireman Murphy for cause.

JAMES C. HILL, Circuit Judge, specially concurring:

I concur in the majority opinion.

My brother Clark finds my pre-Witt ¹ observations to have been well taken. As a statement of what I perceived the law to have been when I wrote those passages, I do not unsay a word. I am, now, however, further instructed.

Witt is a major correction addressed to those of us who have accepted footnote 21 of Witherspoon ² as command. Having consisted of dicta, then, it is held to be, now. Witt, 105 S.Ct. at 851. While we have lost our touchstone, to which I repaired, we are re-directed to the traditional test. Is the juror fair and impartial? See Witherspoon, 391 U.S. at 532-40 (Black, J., dissenting).

The remnant of Witherspoon seems to be this. A juror is no more disqualified because he or she is opposed to the death penalty than is one in favor of it. All are qualified, on this issue, who can apply the law--including mitigation, aggravation, and other elements of capital punishment--without bias in the case to be tried. "To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a State must allow a venireman to sit despite the fact that he will be unable to view the case impartially." Witt, 105 S.Ct. at 851.

Whether released from or cast adrift from the criterion of footnote 21, I have no difficulty in concluding, as did the trial judge, that accepting venireman Murphy would have qualified one as a juror who was not impartial. Id. at 853-55.

JOHNSON, Circuit Judge, dissenting:

The court holds that under the standards announced in Wainwright v. Witt, --- U.S. ----, 105 S.Ct., 844, 83 L.Ed.2d 841 (1985) Willie Jasper Darden is not entitled to habeas corpus relief. Because Witt maintains constitutional limitations on the power of the State to exclude jurors opposed to capital punishment, limits that have been transgressed in this case, I respectfully dissent.

I. THE EXCLUSION

Willie Jasper Darden's trial for murder, robbery and attempted murder began in...