Greene v. State

• Decision Date: 05 May 1997
• Docket Number: No. S95P1366,S95P1366
• Citation: Greene v. State, 485 S.E.2d 741, 268 Ga. 47 (Ga. 1997)
• Parties: , 97 FCDR 1514 GREENE v. The STATE.
• Court: Georgia Supreme Court

Page 741

485 S.E.2d 741

268 Ga. 47, 97 FCDR 1514

GREENE v. The STATE.

No. S95P1366.

Supreme Court of Georgia.

May 5, 1997.

Reconsideration Denied May 30, 1997.

[268 Ga. 57] William L. Kirby, II, Columbus, Charlotta Norby, Stephen B. Bright, Atlanta, and Herbert L. Wells, Perry, for Greene.

John Gray Conger, Dist. Atty., Columbus, Lori L. Canfield, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Paula K. Smith, Susan V. Boleyn, Sr. Asst. Attys. Gen., for the State.

CARLEY, Justice.

A jury found Daniel Greene guilty of murder, armed robbery and aggravated assault. The jury also found, as an aggravating circumstance, that Greene committed the murder during the course of an armed robbery and, based upon that finding, the jury imposed a death sentence for the murder. For the armed robbery, Greene received a life sentence and, for the aggravated assault, a 20-year sentence.

Greene appealed and, in one of his enumerations, he asserted that the trial court erred by excusing five prospective jurors for cause based upon their opposition to the death penalty. Greene v. State, 266 Ga. 439, 440(2), 469 S.E.2d 129 (1996). In addressing this enumeration, we initially noted that Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) "is the controlling authority as to the death-penalty qualification of prospective jurors...." Greene v. State, supra at 440(2), 469 S.E.2d 129. In the course of our subsequent review of the trial court's specific rulings on the exclusion of the five prospective jurors, we also cited Wainwright v. Witt as "controlling authority." Greene v. State, supra at 441(2), 469 S.E.2d 129. Our ultimate conclusion was that "the trial court's finding that the prospective jurors were disqualified must be affirmed." Greene v. State, supra at 442(2) 469 S.E.2d 129. Only Chief Justice Benham and Justice Sears dissented, urging that the trial court erred in finding the prospective jurors were disqualified under the standard established by Wainwright v. Witt.

The Supreme Court of the United States granted Greene's petition for a writ of certiorari. Greene v. Georgia, 519 U.S. ----, 117 S.Ct. 578, 136 L.Ed.2d 507 (1996). The Supreme Court held that this court "correctly recognized that [Wainwright v. Witt is, 'the controlling authority as to the death[-penalty] qualification of prospective jurors....' [Cit.]" Greene v. Georgia, supra at ----, 117 S.Ct. at 578-579. However, the Supreme Court also held that Wainwright v. "Witt is not 'controlling authority' as to the standard of review to be applied by state appellate courts reviewing trial courts' rulings on jury selection." Greene v. Georgia, supra at ----, 117 S.Ct. at 579. "[T]he Supreme Court of Georgia is free to adopt the rule laid down in [Wainwright v. Witt for review of trial court findings in jury selection cases, but it need not do so." Greene v. Georgia, supra at ----, 117 S.Ct. at 579. Accordingly, the Supreme Court reversed the judgment inGreene v. State, supra, and remanded the case to us for further proceedings not inconsistent with its opinion. Pursuant to that mandate, we now reconsider the issue of the disqualification of the five prospective jurors.

The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment "is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, supra at 424(II), 105 S.Ct. at 852. This standard does not require that a juror's bias be proved with "unmistakable clarity." Ledford v. State, 264 Ga. 60, 64(6), 439 S.E.2d 917 (1994). Despite a lack of clarity in the record, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Wainwright v. Witt, supra at 425-426(II), 105 S.Ct. at 853. "As the U.S. Supreme Court has recognized, 'many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear."...' [Cit.]" Ledford v. State, supra at 64(6), 439 S.E.2d 917. Here, the trial court found that the views on capital punishment held by the five prospective jurors were such as to disqualify them. The issue before us is whether the trial court was authorized to find that the prospective jurors' views would prevent or substantially impair the performance of their duties in accordance with their instructions and oaths.

In Wainwright v. Witt, the Supreme Court also held that, under 28 USC § 2254(d), a federal court must give deference to a state trial court's finding of prospective juror bias. As noted, we are not bound by that additional holding in Wainwright v. Witt, since this court is not a federal court which conducts a habeas corpus review of a state trial court's findings pursuant to 28 USC § 2254(d). Nevertheless, we do apply the Wainwright v. Witt standard of review because this court previously has adopted it as the controlling law of Georgia.

It is because veniremembers "may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings(,)" [cit.], that deference must be paid to the trial court's determination of whether the views of a prospective juror will "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." [Cits.]

Ledford v. State, supra at 64(6), 439 S.E.2d 917. See also Crowe v. State, 265 Ga. 582, 588(9)(a), 458 S.E.2d 799 (1995); Hittson v. State, 264 Ga. 682, 688(6)(h), 449 S.E.2d 586 (1994); Thornton v. State, 264 Ga. 563, 573(13)(b), 449 S.E.2d 98 (1994); Potts v. State, 261 Ga. 716, 722(8), 410 S.E.2d 89 (1991); Wade v. State, 261 Ga. 105, 108(9), 401 S.E.2d 701 (1991); Spencer v. State, 260 Ga. 640, 641(1)(c), 398 S.E.2d 179 (1990); Isaacs v. State, 259 Ga. 717, 730(22), 386 S.E.2d 316 (1989); Childs v. State, 257 Ga. 243, 249(7), 357 S.E.2d 48 (1987); Jefferson v. State, 256 Ga. 821, 824(2), 353 S.E.2d 468 (1987). Accordingly, we must now determine whether the trial court erred in excusing the five prospective jurors, giving to the trial court's findings the deference to which they are entitled under the controlling law of this state. In so doing, we hereinafter paraphrase Greene v. State, supra at 440-442(2), 469 S.E.2d 129, applying the same legal principles as were originally applied therein, but relying now upon only controlling Georgia authority.

Under that controlling Georgia authority, our review of the trial court's disqualifications of the prospective jurors must be based upon a consideration of the voir dire as a whole. Crowe v. State, supra at 588(9)(a), 458 S.E.2d 799; Spivey v. State, 253 Ga. 187, 197, fn. 3, 319 S.E.2d 420 (1984). Although a prospective juror gives answers which, standing alone, might indicate that his or her opposition to the death penalty is not "automatic," this is not decisive. Alderman v. State, 254 Ga. 206, 207(4), 327 S.E.2d 168 (1985). "A trial court's determination of a potential juror's ability to serve is not limited to the juror's opinion of his own impartiality. [Cit.]" Burgess v. State, 264 Ga. 777, 781(7), 450 S.E.2d 680 (1994). Moreover, it is immaterial that the disqualification of a prospective juror does not appear with "unmistakable clarity."

As has been pointed out, " 'determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.' [Cit.] Often, the answers of a prospective juror will to some degree be contradictory. (Cit.)" [Cit.]

Jefferson v. State, supra at 823(2), 353 S.E.2d 468. The relevant inquiry on appeal is whether the trial court's finding that a prospective juror is disqualified is supported by the record as a whole. See Crowe v. State, supra at 588(9)(a), 458 S.E.2d 799; Taylor v. State, 261 Ga. 287, 292(5), 404 S.E.2d 255 (1991); Spivey v. State, supra at 197(6)(d), fn. 3, 319 S.E.2d 420. An appellate court should not substitute its own finding for that of the trial court, since it must pay deference to the trial court's determination. See Ledford v. State, supra at 64(6), 439 S.E.2d 917; Jefferson v. State, supra at 823(2), 353 S.E.2d 468. This deference encompasses the trial court's resolution of any equivocations and conflicts in the prospective jurors' responses on voir dire. See Burgess v. State, supra at 780(6), 450 S.E.2d 680; Ledford v. State, supra at 64(6)(b), 439 S.E.2d 917; Isaacs v. State, supra at 730(21), 386 S.E.2d 316; Jefferson v. State, supra at 823(2), 353 S.E.2d 468. Whether to strike a juror for cause is within the discretion of the trial court and the trial court's rulings are proper absent some manifest abuse of discretion. Diaz v. State, 262 Ga. 750, 752(2), 425 S.E.2d 869 (1993).

PROSPECTIVE JUROR IRMA MILLER

Ms. Miller initially stated that she was conscientiously opposed to the death penalty in "some cases." She then said that she would not vote for that punishment in any case. However, she next appeared to equivocate, stating that she did not "really know" whether she would never vote for the death penalty. Nevertheless, she thereafter affirmed that, even if she believed the death penalty was the most appropriate sentence, she could not vote for that penalty "no matter, regardless of what the facts and circumstances showed in the case" and that she did not think she could ever vote for that sentence. Eventually, she appeared to equivocate yet again, conceding that "there are certain circumstances where it might be necessary that we vote for the death penalty" and that she "probably would vote for the death penalty." However, she concluded her voir dire by admitting that she was "ninety percent" opposed to the death penalty and committed to the belief that only God...