Darden v. Wainwright

• Decision Date: 22 February 1984
• Docket Number: No. 81-5590,81-5590
• Citation: 725 F.2d 1526
• 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 1526

725 F.2d 1526

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.

Feb. 22, 1984.

Certiorari Denied June 4, 1984.

See 104 S.Ct. 2688.

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

Geoffrey M. Kalmus, New York City, amicus curiae, for NAACP Legal Defense and Educational Fund, Inc.

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.

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

JOHNSON, Circuit Judge:

Willie Jasper Darden appeals the denial by the district court of his habeas corpus petition, challenging the constitutionality of his conviction and death sentence. As grounds for relief, petitioner claims that he was denied effective assistance of counsel, that the prosecutors' closing arguments to the jury denied him a fair trial, and that venirepersons were improperly excluded from the jury in violation of the rule of Witherspoon v. Illinois. This Court sitting en banc has twice considered issues raised by this appeal and has concluded on the basis of the Supreme Court's uniform and consistent application of the rule in Witherspoon that the district court's denial of habeas relief must be reversed.

Darden was charged with first degree murder, robbery and assault with intent to commit murder in the first degree based upon events occurring at Carl's Furniture Store in Lakeland, Florida, on September 8, 1973. ¹ The jury found Darden guilty on all three counts and recommended the penalty of death. The trial court concurred in the jury's recommendation and imposed the death sentence.

Darden's conviction and sentence were affirmed by the Florida Supreme Court in Darden v. State, 329 So.2d 287 (1976). The United States Supreme Court initially granted Darden's petition for writ of certiorari, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282, but later dismissed the writ as improvidently granted, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751.

After the Governor of Florida signed a warrant for Darden's execution, Darden filed a petition for habeas relief in the United States District Court for the Middle District of Florida, raising the issues presented in this appeal. The court entered a stay of execution and assigned the case to a magistrate who, after a hearing on the ineffective assistance of counsel claim, recommended that the district court grant the habeas petition on the basis of Darden's claims of prosecutorial misconduct during closing argument and improper juror excusal. The district court rejected the magistrate's recommendation and denied habeas relief. Darden timely noticed this appeal.

I. THE WITHERSPOON ISSUE

The Legal Standard. During the jury qualification and selection procedure, the trial court excused for cause several venirepersons who expressed opposition to the death penalty. Petitioner argues that two of these dismissals were errors of constitutional magnitude under the standard established by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Witherspoon, the Supreme Court held that a death sentence "cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522, 88 S.Ct. at 1777 (footnote omitted). Witherspoon recognized that a jury purged of all those who express religious or conscientious scruples against capital punishment is not the impartial jury promised by the Sixth and Fourteenth Amendments; it is instead "a jury uncommonly willing to condemn a man to die." Id. at 521, 88 S.Ct. at 1776. The Court at the same time recognized the necessity of excusing jurors whose intractable opposition to capital punishment would distort their judgment on the facts developed in the case before them and would frustrate the state's legitimate efforts to implement an otherwise constitutional death penalty scheme. The Court thus fashioned the rule that prospective jurors cannot be excused from jury service on the basis of their opposition to the death penalty unless they make it

unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).

This Circuit strictly adheres to the mandate of Witherspoon, Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), ² which we understand to require that

[o]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Witherspoon grounds.

Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979), adhered to en banc, 626 F.2d 396 (1980).

Witherspoon sets a strict legal standard and imposes as well a very high standard of proof. The venireperson must make it "unmistakably clear" that he or she will automatically vote against the death penalty. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. "Unless a venireman states unambiguously that he would automatically vote against imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." Id. at 515-16 n. 9, 88 S.Ct. at 1773-74 n. 9. Thus, any ambiguity must be resolved by not excluding the venireperson from the jury.

The Standard of Appellate Review. Application of the Witherspoon rule and its standard of proof has generated a plethora of cases in which appellate courts have closely reviewed trial courts' voir dire examinations of prospective jurors to determine whether those excluded made unmistakably clear their rigid resolve to oppose the death penalty. In these many cases, no court has explicitly determined the standard that should govern appellate review of trial courts' Witherspoon decisions. Courts instead have proceeded without discussion to review independently the transcript of the voir dire questioning and to determine whether the constitutional standards articulated in Witherspoon were met. The question of the appropriate standard of review recently has come to the fore with some suggestion that Witherspoon review should accord considerable deference to the decision reached by the trial judge. See O'Bryan v. Estelle, 714 F.2d 365, 391-96 (5th Cir.1983) (Higginbotham, J., concurring); id. at 400-12 (Buchmeyer, J., dissenting); Alderman v. Austin, 695 F.2d 124, 128-34 (5th Cir. Unit B 1983) (en banc) (Fay & Roney, JJ., dissenting). The time thus seems appropriate to decide directly the standard that appellate courts should apply in reviewing Witherspoon exclusions.

Although no court previously has explicitly decided the proper standard of review in Witherspoon cases, the manner in which appellate courts, including the Supreme Court, have conducted the many reviews that they have made of Witherspoon decisions provides guidance for this Court's decision. The predominant if not exclusive method of review undertaken by the federal courts, whether on direct review or in habeas proceedings, has been an independent review, based upon a close study of the voir dire transcript to determine whether a venireperson was improperly excluded from the jury. See, e.g., Adams v. Texas, 448 U.S. 38, 49-51, 100 S.Ct. 2521, 2528-29, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 595-97, 98 S.Ct. 2954, 2959-61, 57 L.Ed.2d 973 (1978); Maxwell v. Bishop, 398 U.S. 262, 264-65, 90 S.Ct. 1578, 1580-81, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482-84, 89 S.Ct. 1138, 1140-42, 22 L.Ed.2d 433 (1969); Spencer v. Zant, 715 F.2d 1562, 1576-77, reh'g granted en banc, 729 F.2d 1293 (11th Cir.1983); King v. Strickland, 714 F.2d 1481, 1492-93 (11th Cir.1983); Witt v. Wainwright, 714 F.2d 1069, 1080-83 (11th Cir.1983); Hance v. Zant, 696 F.2d 940, 954-56 (11th Cir.1983); Bell v. Watkins, 692 F.2d 999, 1006-08 (5th Cir.1982); Williams v. Maggio, 679 F.2d 381, 383-86 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983); Alderman v. Austin, 663 F.2d 558, 562-64 (5th Cir. Unit B 1982), aff'd in relevant part, 695 F.2d 124 (1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 677-78 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Burns v. Estelle, 592 F.2d 1297, 1300-01 (5th Cir.1979), adhered to en banc, 626 F.2d 396, 397-98 (1980).

The approach taken by the courts is consistent with the demands of the law. Application of the Witherspoon rule involves a mixed question of law and fact, which makes it a determination subject to independent review by an appellate court. See Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.); Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); see also Pullman-Standard v. Swint, 456 U.S. 273, 289-90 n. 19, 102 S.Ct. 1781, 1790-91 n. 19, 72 L.Ed.2d 66 (1982) (citing Supreme Court authority for independent appellate court review of mixed questions...