Depree v. Thomas
| Decision Date | 05 November 1991 |
| Docket Number | No. 86-8167,86-8167 |
| Citation | 946 F.2d 784 |
| Parties | Bernard DEPREE, Petitioner-Appellant, v. A.G. THOMAS, Warden and Michael J. Bowers, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul Hanes, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and ROETTGER *, Chief District Judge.
Petitioner, Bernard Depree, was convicted in 1978 for armed robbery and murder; he is presently serving three life sentences for these crimes. In this appeal from the district court's dismissal of his petition for writ of habeas corpus, Depree raises over twenty claims challenging the constitutionality of his convictions. After reviewing these claims, we conclude that there was no error and, accordingly, affirm the district court's dismissal of Depree's habeas corpus petition.
In May 1978, four armed men robbed the Dixie Furniture Store in Atlanta, Georgia. During the course of this robbery, one of the men shot and killed an Atlanta policeman, Frank Robert Schlatt, who had responded to a silent alarm triggered at the store. In June 1978, Depree, Warren McCleskey, David Burney, Jr., and Ben Wright were indicted for two counts of robbery and for the murder of Officer Schlatt. The State tried McCleskey alone, and a jury found him guilty of armed robbery and murder and sentenced him to death. See McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Depree and Burney were tried together; both put forth alibi defenses, claiming that they were not at the Dixie Furniture Store at the time of the robbery and murder. A jury convicted both of them, and they each received three consecutive life sentences. 1 Wright testified on behalf of the State against his three accomplices in exchange for a recommendation by the district attorney of a twenty-year sentence.
On direct appeal, the Supreme Court of Georgia affirmed Depree's convictions and sentences. Depree v. State, 246 Ga. 240, 271 S.E.2d 155 (1980). Depree then filed a petition for habeas corpus relief in the Superior Court of Tattnall County. 2 Following two evidentiary hearings, the court, on March 4, 1985, denied the requested relief. The Supreme Court of Georgia, on May 1, 1985, denied Depree's application for a certificate of probable cause to appeal.
On August 14, 1985, Depree, acting pro se, petitioned the district court for federal habeas corpus relief, raising thirty claims. The district court, after finding that no evidentiary hearing was necessary, concluded that the claims were meritless and dismissed the petition. Depree then appealed.
Following developments in McCleskey's federal habeas corpus proceedings, Depree asked us to remand his case to the district court so that he could pursue a claim based on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). We granted Depree's request and, while retaining jurisdiction of his appeal, remanded the case to the district court for that purpose. Subsequently, we expanded the scope of the remand to allow Depree to litigate a claim based on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). After conducting an evidentiary hearing, the district court, on July 10, 1990, held that Depree's Massiah and Giglio claims were meritless. The district court's decision is now before us.
Of the claims Depree presents on appeal, only five merit discussion. 3 Three of these claims, addressed in part II, are that the trial court denied Depree a fair trial, in violation of his due process rights, by: (1) erroneously rejecting Depree's challenges for cause to two venirepersons (who became jurors); (2) erroneously denying Depree's motions to sever his trial from Burney's and; (3) erroneously allowing the prosecutor, during closing argument, to comment on Depree's pre-arrest silence. The two remaining claims, addressed in part III, are that the State's use of certain witnesses, and these witnesses' testimony, violated his due process rights, under Massiah and Giglio.
A.
Depree claims that the trial court erroneously rejected his challenges to two venirepersons who eventually were empaneled on the jury that convicted him. The two at issue, Isaac M. Hodgkins and Sonja Reynolds, both had some connection with law enforcement: Hodgkins was an ex-deputy sheriff and Reynolds had relatives who served on the Atlanta police force. Depree contends that the voir dire examination established that these venirepersons, because of their association with law enforcement, could not judge impartially a case involving the murder of an Atlanta policeman. 4 Thus, he argues, these individuals were unqualified to sit on the jury, and the trial court's failure to accept his challenges for cause and to exclude them rendered his trial fundamentally unfair.
Generally, "a state criminal defendant who can demonstrate that a member of the jury which heard his case was biased ... is entitled to federal habeas corpus relief." Rogers v. McMullen, 673 F.2d 1185, 1189 (11th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983). "The decision to excuse a [prospective] juror for cause upon a suggestion of partiality is within the sound discretion of the trial judge." United States v. Taylor, 554 F.2d 200, 202 (5th Cir.1977). 5 The trial judge must consider whether the prospective juror has such a fixed opinion, based on his bias, that he "could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). Whether an individual is so partial that he must be disqualified is "plainly [a question] of historical fact." Id. at 1036, 104 S.Ct. at 2891. Thus, on federal habeas corpus review, a state court's determination as to the partiality of a particular juror is entitled to a presumption of correctness. 28 U.S.C. § 2254(d) (1988). In reviewing such a finding, then, we will not set it aside "unless the error is manifest." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961) (quoting Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878)). In other words, "the question is whether there is fair support in the record for the state court['s] conclusion that the jurors here would be impartial." Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93. 6
Depree first challenged Hodgkins, an ex-deputy sheriff. The relevant portion of Hodgkins' voir dire examination is as follows: 7
....
Q: Sir, I would like to get back to a few questions back. I believe if I heard you correctly, you said the fact that you were an ex-policeman could influence the way that you would view this case. Is that what you said?
According to Depree, this colloquy demonstrated that Hodgkins could not be impartial in evaluating Depree's case; 8 thus, the trial court erred in denying the challenge for cause to Hodgkins' service on the jury. 9 We disagree. As Depree points out, some of Hodgkins' answers raised the possibility that he would not be impartial. Hodgkins admitted that his status as an ex-deputy sheriff would affect "the way [he] would think in th[e] case"; he reiterated this point later in the voir dire, confessing that his status as an ex-police officer "might and could" influence the way that he would view the case. Throughout this examination, however, Hodgkins continually asserted that he would be able to set aside his personal feelings in evaluating Depree's case. Following counsel's questions about Hodgkins' possible bias as an ex-deputy sheriff, the trial court inquired whether Hodgkins could judge Depree fairly and impartially; Hodgkins affirmed that he could. The record does not support Depree's assertion that the trial court manifestly erred in evaluating Hodgkins' ability to act impartially as a juror. 10 At most, the record establishes that Hodgkins might have brought a bias to the courtroom door; it does not demonstrate that Hodgkins could not leave his bias outside that door. 11 Accordingly, we will not disturb the trial judge's conclusion that Hodgkins could evaluate Depree's case impartially and fairly and was, thus, qualified to serve as a juror. 12
The second venireperson Depree challenged was Sonja Reynolds. The parties picked Reynolds...
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