Marion v. Beto

• Decision Date: 04 January 1971
• Docket Number: No. 28421.,28421.
• Citation: 434 F.2d 29
• Parties: James Lee MARION, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 29 (1970)

James Lee MARION, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 28421.

United States Court of Appeals, Fifth Circuit.

November 6, 1970.

Rehearing Denied and Rehearing Denied January 4, 1971.

Richard J. Clarkson, Law Offices Burnett & Childs, Odessa, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen. of Tex., Nola White, First Asst. Atty. Gen., Pat Bailey, Executive Asst. Atty. Gen., Allo B. Crow, Jr., Robert C. Flowers, Asst. Attys. Gen., Austin, Tex., James Mashburn, Dist. Atty., Midland County, Midland, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied January 4, 1971.

SIMPSON, Circuit Judge:

This is an appeal from the denial, after hearing, of a Texas state prisoner's application for writ of habeas corpus.¹ A prior appeal to this Court from a district court denial of habeas relief is reported as Marion v. Harrist, 5 Cir. 1966, 363 F.2d 139, cert. denied 386 U.S. 934, 87 S.Ct. 960, 17 L.Ed.2d 807. Both petitions stem from the petitioner's conviction for murder and resulting death sentence.

At the outset we may quickly dispose of Marion's allegations that (1) the trial court erroneously failed to make an independent determination of the voluntariness of his two written confessions and of statements made by appellant to psychiatrists, (2) that the trial court improperly charged the jury on the issue of the voluntariness of the confessions, (3) that the trial court erroneously refused to allow pretrial discovery of the confessions, (4) that appellant was denied the right to counsel at critical stages in the proceedings, and (5) that the trial court's instruction to the jury on the question of insanity deprived the appellant of the due process of the law. We believe that these matters have been fully and fairly developed and properly disposed of adversely to appellant in Sections I, II, III and IV of the district court's opinion reported at 302 F.Supp. 913.

The appellant also urges that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. The Supreme Court of the United States stated in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958), albeit in dictum, that the death penalty did not violate the constitutional concept of cruelty. Despite recent attacks on that language we have seen nothing to indicate that the Supreme Court's position has changed. See also Sims v. Eyman, 9 Cir. 1969, 405 F.2d 439; Segura v. Patterson, 10 Cir. 1968, 402 F.2d 249.

The appellant claims that the Texas practice of allowing the jury discretion to assess the death penalty without directions or guidelines violates due process and that the Texas single verdict procedure violated due process by forcing the defendant to choose between presenting evidence to mitigate punishment or maintaining his privilege against self-incrimination. Similar sentencing schemes have been approved by several courts. Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948); Sims v. Eyman, supra; Segura v. Patterson, supra; Petition of Ernst, 3 Cir. 1961, 294 F.2d 556. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Giaccio v. Pennsylvania, 382 U.S. 399, 405 footnote 8, 86 S.Ct. 518, 522, 15 L.Ed.2d 447, 451 (1966).

The one remaining matter is a Witherspoon² argument by appellant that the trial court excluded jurors who voiced only general conscientious scruples against the infliction of the death penalty. A prior determination was made in the courts of the State of Texas that Witherspoon was not violated; the district court made an independent determination based on the same facts and reached the same conclusion. We disagree, and reverse and remand for a new trial.

In reversing the district judge, we do so not because of disapproval of his findings of fact but because we disagree with the legal conclusion which flows from those facts. A total of 71 jurors were examined before 12 were chosen to sit on the jury. 26 of the 71 were excused for cause on the basis of their attitudes regarding the death penalty.³ The district court concluded that 16 of the 26 unequivocally stated that they could not vote for the death penalty under any set of circumstances. Of the remaining 10, two were excused with the agreement of defense counsel, and a third was excused for an adequate reason other than scruples against the death penalty. Venireman Mr. Dunn, who stated that "I think I probably could." (vote for the death penalty) was nonetheless excused for cause, the trial judge stating "There was too much hesitation and he qualified it with saying that he probably could". Several other veniremen, notably Mrs. Robbins, Mr. Nutt, Mr. Akard, Mr. McKee and Mr. Nelson, were excused for answers which the trial judge and the district court thought implied that they could under no circumstances render a death verdict. The district court found that three prospective jurors, Mrs. Hobbs, Mr. Moore and Mrs. Speck, were excused solely for their conscientious scruples against the death penalty. The court below commented that several jurors who had expressed reservations about the death penalty were not excused, and concluded that under the total circumstances the State had not systematically excluded those who voiced only conscientious scruples against the infliction of the death penalty.

In Witherspoon, the Supreme Court stated:

"Specifically, we hold that a sentence of death 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. No defendant can constitutionally be put to death at the hands of a tribunal so selected". 391 U.S. at 521-522, 88 S.Ct. at 1776.

The Supreme Court further implied that doubts concerning the ability of a venireman to subordinate his personal views to his oath as a juror to obey the law of the state should be resolved against exclusion, stating in footnote 9, on page 515-516 of the opinion, 88 S.Ct. on page 1774:

"Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that this is his position." (Emphasis added).⁴

We note that this statement is in sharp contrast to the words of the Texas Court of Criminal Appeals in the post-Witherspoon case of Pittman v. State, 434 S.W.2d 352, 357 (1968):

"It has long been the holding of this Court that if it is doubtful whether the juror had conscientious scruples in regard to the infliction of capital punishment, the court\'s action in sustaining the State\'s challenge for cause on that ground will be sustained on appeal. Burrell v. State, 18 Tex. 713; Sawyer v. State, 39 Tex.Cr.R. 557, 47 S.W. 650; Myers v. State, 77 Tex.Cr. R. 239, 177 S.W. 1167; Vickers v. State, 92 Tex.Cr.R. 182, 242 S.W. 1032; see also Article 35.21, V.A.C.C. P."

The bare question here then is whether the improper exclusion for cause of a relatively small number of the total number of veniremen questioned on the grounds of mere conscientious scruples against the death penalty deprives the defendant of the impartial jury required by the Sixth and Fourteenth Amendments. Several courts have answered this query in the negative. Bell v. Patterson, 10 Cir. 1968, 402 F.2d 394 (holding that the improper exclusion of 2 of 15 prospective jurors ultimately excluded on the death issue did not deprive the defendant of a jury composed of an impartial cross-section of the community); State v. Mathis, 52 N.J. 238, 245 A.2d 20, 27 (N.J.1968), (stating in dictum that the improper exclusion of a single juror did not deprive the defendant of representatives from the anti-capital punishment section of the community); Pittman v. State, supra, (stating that the exclusion of three jurors whose answers had been ambiguous out of 42 jurors who were excluded on the death issue did not require reversal); Scott v. State, 434 S. W.2d 678 (Tex.Ct.Crim.App.1968) (holding that the exclusion of several jurors without a full showing that they could not in any case vote for the death penalty did not require reversal, on the authority of Pittman, supra). These cases generally distinguish Witherspoon on the basis that in that case all of those excused had been improperly eliminated and therefore there could be...