McCorquodale v. Balkcom

• Citation: 721 F.2d 1493
• Decision Date: 30 December 1983
• Docket Number: No. 82-8011,82-8011
• Parties: Timothy Wesley McCORQUODALE, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1493

721 F.2d 1493

Timothy Wesley McCORQUODALE, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, et al Respondents-Appellees.

No. 82-8011.

United States Court of Appeals Eleventh Circuit.

Dec. 30, 1983.

John R. Myer, Atlanta, Ga., John Charles Boger, Anthony Amsterdam, New York City, for petitioner-appellant.

Lewis R. Slaton, H. Allen Moye, Janice G. Hildenbrand, Mary Beth Westmoreland, Asst. Attys. Gen., Atlanta, Ga., for respondents-appellees.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

The petitioner, Timothy Wesley McCorquodale, was convicted by a jury of first degree murder and sentenced to death. ¹ The Georgia Supreme Court affirmed the conviction and sentence on direct appeal, McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), and the United States Supreme Court denied a petition for writ of certiorari. McCorquodale v. Georgia, 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976).

The petitioner subsequently filed a petition for a writ of habeas corpus in state court, which was denied, McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486 (1977), cert. denied, 434 U.S. 975, 98 S.Ct. 534, 53 L.Ed.2d 467 (1977). McCorquodale then filed an extraordinary motion for a new trial based upon newly discovered evidence, which, after an evidentiary hearing, was also denied, and the denial was affirmed on appeal. McCorquodale v. State, 242 Ga. 507, 249 S.E.2d 211 (1978).

After his failure to obtain relief in the state courts, McCorquodale brought the present petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of Georgia. He raised six contentions in support of his petition, attacking both his conviction and his sentence. The district court found all of the arguments to be without merit and denied habeas corpus relief. McCorquodale v. Balkcom, 525 F.Supp. 408 (N.D.Ga.1981). A panel of this court affirmed the denial of relief as to five of McCorquodale's arguments, but reversed as to his sentence, directing that the writ of habeas corpus issue because the petitioner's constitutional right to a fair and impartial jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), had been violated. McCorquodale v. Balkcom, 705 F.2d 1553 (11th Cir.1983). This court elected to hear the case en banc, and we now hold that the district court properly denied the writ in concluding that the voir dire procedures comported with Witherspoon standards.

I. The Witherspoon Rule

The Supreme Court in Witherspoon v. Illinois enunciated the rule 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 522, 88 S.Ct. at 1777 (footnotes omitted). The Court clarified in a footnote the two reasons why a juror could be excused for cause in the Witherspoon context:

We repeat, however, that nothing we say today bears upon the power of a state to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made it unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21 (emphasis in original). Witherspoon's holding thus struck a balance between "the state's legitimate interest in obtaining jurors who could follow their instructions and obey their oaths," Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), and a defendant's right to have a neutral jury not "uncommonly willing to condemn a man to die." Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776; see also Adams, 448 U.S. at 44, 100 S.Ct. at 2526.

The petitioner advances three arguments as to why the voir dire proceedings in his case violated Witherspoon's standards: (1) the collective questioning of the venirepersons and their non-verbal responses failed to ensure that each individual juror would unequivocally refuse to impose the death penalty or impartially deliberate on the defendant's guilt; (2) the Witherspoon questions asked at voir dire were insufficient; and (3) the questions asked to and the responses by two of the jurors dismissed for cause, jurors Woodlief and Kidd, were insufficient.

II. Group Questioning and Non-Verbal Responses

At voir dire the prosecutor collectively asked a series of three questions to the approximately sixty jurors comprising the jury pool. The prosecutor first asked Are you conscientiously opposed to capital punishment? If you're conscientiously opposed to capital punishment, if you will, please stand. If you are not conscientiously opposed to capital punishment, remain seated.

Nineteen jurors stood up in response to this question.

The prosecutor then posed the two additional questions required by Witherspoon to those jurors who had stood up, asking them to step forward if they would answer the question affirmatively:

The first question is this. Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case, regardless of what the evidence was?

....

The [second] question is this. Would you allow your opinion about capital punishment to prevent you from being a fair and impartial juror on the issue of guilt or innocence as distinguished from the issue of punishment? If you would, would you please step forward.

The prosecutor then moved the court to dismiss the fifteen jurors who had stepped forward. The court granted the motion over defense counsel's general objection.

The manner in which voir dire was conducted in this case raises two questions of first impression: ² whether Witherspoon requires individual questioning of prospective jurors and whether their responses must be verbal. Necessarily involved in answering the last question is another issue which has yet to be resolved in the Witherspoon context: ³ what degree of deference, if any, should be granted to a trial court's assessment of whether a juror's responses are "unmistakably clear" so as to satisfy Witherspoon.

We hold that group questioning and non-verbal responses do not constitute a per se violation of Witherspoon. Witherspoon governs the substance of the inquiry to be made, not its form, and only requires that the voir dire method used for questioning and receiving responses allows a court to determine in the particular case at hand that the excluded venirepersons "made unmistakably clear" that their attitude toward the death penalty would either automatically cause them to vote against the death penalty or prevent them from impartially deciding the defendant's guilt.

In this case, posing the Witherspoon questions to the jury pool as a group did not prevent the trial court from making this necessary determination. The questions asked by the prosecution went immediately to the relevant Witherspoon inquiries and carefully tracked the wording in Witherspoon. ⁴ Furthermore, the responses to be made by those venirepersons responding affirmatively to the questions--standing up in answer to the first question and stepping forward as to the next two questions--were clearly stated to the jurors and were not susceptible to misunderstanding.

The petitioner argues, however, that the group questioning was an "all or nothing" affair, and that individual questioning may have revealed that certain jurors were equivocating in their attitudes. This argument is without merit for several reasons.

First, nothing in the record indicates that the venirepersons were prevented from indicating that they did not understand the questions or from asking for clarification. Second, the court did not prevent defense counsel from asking further questions or requesting individual questioning of venirepersons; defense counsel entered only general objections without specifying the precise nature of his objection. Once the state clearly establishes a potential juror's unequivocal opposition to the death penalty, which in this case the questions asked and the jurors' responses accomplished, it is then incumbent upon the defendant to make an objection specifying why the juror should not be dismissed and to request further questions that would clarify any perceived ambiguity or equivocating by the juror. ⁵ Cf. Goodwin v. Balkcom, 684 F.2d at 816 (defense counsel's failure to raise Witherspoon violation is evidence of ineffectiveness); Burns v. Estelle, 626 F.2d 396, 398 (5th Cir.1980) (en banc) ⁶ (error to deny defense counsel's request for further questioning). See also, O'Bryan v. Estelle, 714 F.2d at 378; Porter v. Estelle, 709 F.2d 944 (5th Cir.1983). Third, the Witherspoon questions were strongly and clearly worded so as to evoke an affirmative answer only from those jurors with unequivocating beliefs. In this sense, the petitioner's "all or nothing" argument would actually work in his favor--initially equivocating jurors who might on further questioning answer the Witherspoon questions "yes" would remain seated, and only those jurors who could answer the questions "yes" without hesitation would stand. Finally, even where individual questioning is conducted, a juror must eventually make the "all or nothing" decision of answering the Witherspoon questions "yes" or "no." ⁷ As used in...