Green v. Zant

• Decision Date: 19 September 1983
• Docket Number: No. 82-8773,82-8773
• Citation: 715 F.2d 551
• Parties: Roosevelt GREEN, Jr., Petitioner-Appellant, v. Walter D. ZANT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 551

715 F.2d 551

Roosevelt GREEN, Jr., Petitioner-Appellant, v. Walter D. ZANT, Respondent-Appellee.

No. 82-8773.

United States Court of Appeals, Eleventh Circuit.

Sept. 19, 1983.

John Charles Boger, New York City, for petitioner-appellant.

Virginia H. Jeffries, Wm. B. Hill, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

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

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

VANCE, Circuit Judge:

Roosevelt Green, Jr. was convicted of murder and sentenced to death for his part in the kidnapping and murder of Teresa Allen, an eighteen year old student who was abducted from her job as a part time cashier at a Majik Market convenience store in Cochran, Georgia, on December 12, 1976. The Supreme Court of Georgia affirmed the conviction. Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978). The United States Supreme Court granted certiorari, vacated petitioner's death sentence and remanded for further proceedings. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). The Georgia Supreme Court remanded the case to the trial court with directions to retry the sentencing portion of the trial. Green v. State, 244 Ga. 27, 257 S.E.2d 543 (1979).

Retrial resulted in reimposition of the death sentence. The Supreme Court of Georgia affirmed. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980). The United States Supreme Court denied certiorari. Green v. Georgia, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 372 (1981).

Petitioner filed for a writ of habeas corpus in the Superior Court of Butts County on June 11, 1981, which was dismissed by the court in an order also dated June 11. On June 12, the Georgia Supreme Court granted a stay of execution pending disposition of an application for certificate of probable cause, and subsequently remanded for an evidentiary hearing. Following the hearing, the Superior Court dismissed the petition and denied relief. The Georgia Supreme Court denied an application for a certificate of probable cause and the United States Supreme Court denied certiorari. Green v. Zant, 455 U.S. 983, 102 S.Ct. 1493, 71 L.Ed.2d 693 (1982).

Green filed the present petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia and thereafter filed a motion for an evidentiary hearing. The district court denied both the motion and petition and Green appeals to this court.

Green raises ten issues before this court: whether the trial court's discharge of one juror during deliberations on petitioner's resentencing without investigation violated petitioner's sixth, eighth and fourteenth amendment rights; whether Green's death sentence violates the proscription of Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) against imposition of capital punishment upon one who himself neither took life, intended to take life, nor attempted to take life; whether non statutory aggravating circumstances were improperly admitted during Green's resentencing proceeding; whether submission during Green's resentencing trial of evidence relevant to statutory aggravating circumstances which had been previously adjudicated in his favor violated his fifth amendment right to be free of double jeopardy; whether the state improperly prevented Green from introducing evidence in mitigation; whether jurors were excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); whether introduction into evidence of portions of the victim's corpse during the resentencing proceeding so infected Green's trial with passion and prejudice as to violate his rights under the eighth and fourteenth amendments; whether the trial court improperly commented on Green's failure to testify; whether the trial court erred in refusing to instruct the sentencing jury that Green was presumed innocent of aggravating circumstances; whether Green was denied the effective assistance of counsel. Because the record is inadequate to support resolution of the first issue, we remand for an evidentiary hearing on that issue and express no opinion as to the remaining issues. This panel will retain jurisdiction over the case. We instruct the district court to certify its findings and the record of its proceedings to us within ninety days of issuance of this opinion. Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983); Spivey v. Zant, 661 F.2d 464, 478 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).

The record reveals the following undisputed facts. Approximately three hours after they began their sentencing deliberations, the jury returned to the courtroom and the foreperson asked the judge "can a sentence be given, 'life in prison without parole?' " The court responded that it could not answer the question. After another brief question and answer, the jury began to withdraw to resume its deliberations.

At this point, one of the jurors, Dorothy Mae Ponder Todd, fell to the floor in the hallway outside the courtroom and in an audible voice repeatedly cried "I can't do it."

Shortly thereafter, the foreperson returned to the courtroom and the following colloquy took place:

BY THE COURT: Let the record show that the Foreperson of this Jury, Mrs. Martha McGee, has been requested to come back into the Courtroom by the Court and the Court desires to ask a question of Mrs. McGee. Mrs. McGee, I understand that the Juror, Dorothy Mae Ponder Todd a few moments ago upon leaving the Courtroom fainted in the corridor, is that correct?

BY FOREPERSON McGEE: Yes, sir.

BY THE COURT: And you have stated to me that upon returning to the Jury room, this Juror is in your opinion incapable of continuing deliberation in this case because of the fact that she is physically and emotionally unable to continue and participate in the deliberation of this Jury, is that true?

BY FOREPERSON McGEE: Yes, sir, it is.

BY THE COURT: And has this person requested of you that she be released from further service?

BY FOREPERSON McGEE: Yes, sir.

BY THE COURT: In your opinion, from having examined her, is she in this condition?

BY FOREPERSON McGEE: Yes, sir, she is.

BY THE COURT: You may go back to the Jury room.

.... BY THE COURT: Sheriff Bittick, I'm going to direct you to remove Juror Dorothy May Ponder Todd from the Jury room. This is being done at her request and upon the advice and at the request of the Jury Foreperson, Mrs. McGee, conveying this Juror to a doctor or some medical facility for the purpose of having her examined and receiving such treatment as she might require.

The record does not suggest that the court attempted to speak to juror Todd herself concerning her condition. No medical advice was sought, nor were there any precautions taken to guard against the possibility that this juror might simply have been reluctant to continue to maintain her position during deliberations. In any event, Todd was replaced by the first alternate.

During petitioner's state habeas corpus hearing, juror Todd submitted an affidavit which was admitted into evidence. The affidavit stated that Ms. Todd was one of two jurors voting against the death penalty and that her statement "I can't do it" referred to her conviction that a death sentence should not be imposed in this case. The affidavit also makes clear that Ms. Todd felt capable of continuing in jury service and would have so informed the trial court if she had been given the opportunity:

I heard testimony as a juror for the entire sentencing trial as charged by the Court.

After a lunch break on Saturday, November 10, we began deliberations.

I heard all the evidence and particpated [sic] fully in the deliberations. A secret ballot was taken by the foreperson. The vote was 10-2 in favor of the death penalty. I voted against the death penalty.

Just before 5:00 p.m., the jury returned to the courtroom with two questions for the Court concerning whether life imprisonment meant no parole and whether it was possible to have testimony of a witness read to us.

After the judge said what he did, I felt that the other juror would be more likely to give the death sentence because he thought that Roosevelt Green would be paroled.

We then went out of the courtroom. Before I got on the elevator, I collapsed. I had never collapsed before in my entire life.

I had every intention of continuing as a juror. I don't remember ever making any statements to anyone asking to be taken off the jury.

The judge never asked me personally whether I could continue. I was capable of continuing to serve as a juror and I'm sure that I would have standed [sic] firm with my convictions.

(emphasis added).

Petitioner contends that the trial court erred by not questioning juror Todd or further investigating her illness. Green has stated a colorable claim of constitutional magnitude. Under the peculiar facts of this capital case, Green's "valued right to have his trial completed by a particular tribunal," United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), and his sixth amendment right to a fair, impartial and representative jury may well have required that the trial court investigate the need to discharge juror Todd.

Georgia law provided that an alternate juror may be substituted if "a juror ... becomes ill, or upon other good cause shown to the court is found unable to perform his duty." Ga.Code Ann. § 59-910. Similarly, a federal district court possesses the discretion to remove a juror when that juror's capacity to perform his duties becomes impaired. "There must be some 'sound' basis upon which the trial judge exercise[s] his discretion" to remove the juror. United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). Dismissal of a juror "for want of any factual support, or for a legally irrelevant reason" is...