King v. Lynaugh

Decision Date27 July 1988
Docket NumberNo. 86-2006,86-2006
Citation850 F.2d 1055
PartiesLeon Rutherford KING, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Ken J. McLean, Houston, Tex., for petitioner-appellant.

Sutherland, Asbill & Brennan, David T. Shelledy, Willard K. Tom, Francis M. Gregory, Jr., Washington, D.C., for amicus curiae--May.

Charles A. Palmer, Austin, Tex., for respondent-appellee.

Marvin L. White, Jr., Asst. Atty. Gen., Jackson, Miss., for amicus curiae--State of Miss.

Appeal from the United States District Court for the Southern District of Texas.


EDITH H. JONES, Circuit Judge:

The issue before our Court en banc is whether a capital murder defendant is constitutionally entitled to question prospective jurors about their understanding of Texas parole law. We conclude that the Constitution does not require such an inquiry, and accordingly we vacate the prior panel opinion to the contrary and deny petitioner's application for a writ of habeas corpus. 1


King has twice been tried and sentenced to capital punishment by Texas juries. A brief summary of the grisly crimes that led to imposition of the severest criminal penalty against King is pertinent to our discussion. 2 King and his cohort Allen Ray Carter kidnapped 26-year-old Michael Clayton Underwood and his girlfriend Kay at gunpoint ten years ago as they were leaving a Houston nightclub. The two men decided they ought to "waste" Underwood and threatened Kay with the same fate if she did not stop crying. They drove in King's pickup truck to an isolated vacant lot not far from Houston's Hermann Park. Kay was forced to watch while King beat Underwood's head in with a shotgun butt until it looked like a "broken egg." For nearly five additional hours, King and Carter repeatedly raped and sodomized Kay, continued to threaten her life, and jeered at having made her observe the execution of her "old man." Before they released Kay King stated to the jury during the punishment phase of his second trial: "You all found me guilty of one of the most brutal murders that have ever been in Houston. If I had found a man guilty of that type of murder I figure he deserves the death penalty and that's what I am asking you is that the jury give me the death penalty. That's what I want."

King removed from her purse a slip of paper containing her address and again threatened to kill her if she called the police. Kay was found, bedraggled and hysterical, slumped behind the wheel of her car at approximately 5:00 a.m. She later testified at King's trials.


At the start of voir dire, the state court refused defense counsel's request

"[T]o voir dire each and every prospective juror on the question of being convicted of capital murder and in the event of a life sentence that person has to serve 20 years before becoming eligible for parole in light of the fact that the prospective juror is advised the mandatory sentence for capital murder is life or death."

King founded this request on Tex. Const. art. 1, Sec. 19, and the fourteenth amendment to the federal constitution. At the time of trial, however, Texas law forbade jurors to consider information bearing on parole in any criminal case. 3 The jurors were charged at the punishment phase of the trial as follows:

You are instructed that the punishment for capital murder is by death or confinement in the penitentiary for life ...

You are not to discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of Board of Pardons and Paroles and the Governor, and are no concern of yours.

King did not request a jury instruction concerning Texas parole law.


King contends that the state court violated his sixth and fourteenth amendment guarantees to a trial by a fair and impartial jury 4 by refusing to allow him to question the jurors--or educate them in voir dire--concerning their knowledge of Texas parole laws. He asserts that if they harbor misconceptions about Texas law, for instance, an erroneous belief that a capital murder defendant may become eligible for parole in seven to ten years, they will be biased toward imposing the death penalty. On the other hand, he suggests, proper knowledge about the 20-year minimum prison term prior to parole eligibility in such cases will tend to reassure them that King does not pose the future dangerousness to society contemplated by Special Issue # 2 of the Texas capital punishment law. 5 If the logic underlying King's position seems technical to the point of absurdity given the gruesome and wanton nature of his crime, its legal support, which requires a significant extension of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and preceding case law, is even thinner. For the following reasons, we reject King's novel theory.

The sixth and fourteenth amendments secure the right of an accused in all criminal prosecutions to trial by an impartial jury. Turner, 476 U.S. at 36, 106 S.Ct. at 1688 n. 9, 90 L.Ed.2d 27. Trial courts bear the principal responsibility to implement this important guarantee. Voir dire "plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). Voir dire interrogation can detect veniremen who will not be able to follow the court's instructions and evaluate the evidence, and it facilitates the exercise of peremptory strikes. Id. Because the adequacy of voir dire turns on the trial judge's evaluation of demeanor evidence and responses to questions, id., the Supreme Court has sharply distinguished between constitutional review of voir dire in matters that would tend to expose significant prejudice and questions that have a more tenuous bearing on jury selection:

The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge."

Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) (citations omitted). In Rosales-Lopez, the Court further observed: "Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire." 451 U.S. at 188-89, 101 S.Ct. at 1634.

This rule of deference has been generally and uniformly applied. Beginning with Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Court "held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984) (explaining Irvin ). In Irvin, however, the Court noted that the trial court's findings of juror impartiality will be overturned only for "manifest error." 366 U.S. at 723, 81 S.Ct. at 1643. Patton, the most recent pretrial publicity case in the Supreme Court, rejected an appellate decision that jury impartiality is a mixed question of law and fact, rendering inapplicable the presumed correctness of a state court's factual findings under 28 U.S.C. Sec. 2254(d). The Court held that the partiality of jurors "is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Id. 467 U.S. at 1036, 104 S.Ct. at 2891. Patton thus emphasizes the necessity to rely on a trial court's finding of fact concerning impartiality, both as a matter of common sense and as a requirement of 28 U.S.C. Sec. 2254(d).

In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Court held that under all the circumstances, including the defendant's defense that law enforcement officers had framed him in retaliation for his active and well-known participation in civil rights activities, he was constitutionally entitled to question prospective jurors about their racial prejudice. But, as the Court later explained, Ham did not constitutionalize racial voir dire interrogation in every case involving a minority defendant. Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021; Rosales-Lopez, 451

U.S. at 190, 101 S.Ct. at 1635. 6

Critical to King's contention is Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), in which the Court relied explicitly on Ham to hold "that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. ... [A]s in other cases involving 'special circumstances,' the trial judge retains discretion as to the form and number of questions on the subject[.]" Id. at 36-37, 106 S.Ct. at 1688. Lest there be any doubt that Turner 's requirement is limited to voir dire concerning racial prejudice in capital cases, Justice White's opinion specifically notes:

What we held in Ristaino, and reaffirm today, is that absent "special circumstances" that create a particularly compelling need to inquire into racial prejudice, the Constitution leaves the...

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