Peek v. Kemp

• Decision Date: 26 October 1984
• Docket Number: No. 82-8713,82-8713
• Citation: 746 F.2d 672
• Parties: David PEEK, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 672

746 F.2d 672

David PEEK, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 82-8713.

United States Court of Appeals, Eleventh Circuit.

Oct. 26, 1984.

Opinion on Granting Rehearing Feb. 5, 1985.

George H. Kendall, III, Russell F. Canan, Atlanta, Ga., for petitioner-appellant.

Mary B. Westmoreland, Nicholas G. Dumich, William 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 VANCE and CLARK, Circuit Judges, and SWYGERT ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

On July 28, 1976, David Peek was tried on two counts of murder and one count of kidnapping in a superior court in Greene County, Georgia. The jury reached a verdict of guilty on all counts at 12:45 a.m. the following day. The penalty phase commenced The defendant's primary claim in this appeal is that the district court was mistaken in holding that no constitutional error occurred when the Greene County trial court excused and replaced a regular juror, Chester Greeson, with an alternate juror, Ben Weinstein, in the final moments of jury deliberations. Affirming Peek's murder conviction would require that we hold constitutional a trial procedure in which 1) the lone juror to reserve a reasonable doubt as to the defendant's guilt is excused because he became nervous and upset; 2) the juror is excused without first being interrogated by the trial court, notwithstanding that the juror was available for that purpose; 3) the decision to excuse the juror is assented to by defendant's counsel outside defendant's presence and without consultation with the defendant; and 4) the juror is replaced by an alternate juror without any supplemental instruction whatsoever to the alternate or the other jurors, moments after which a guilty verdict is returned. This we cannot do.

immediately upon return of the verdict, and Peek was sentenced to die. His convictions and death sentences with respect to the murders were affirmed on direct appeal, ¹ and relief was denied in state habeas proceedings, and again by the district court from the Middle District of Georgia on a petition for habeas corpus under 28 U.S.C. Sec. 2254.

For a fuller understanding of the circumstances in which juror Greeson was excused, we begin by reproducing here the entire proceeding as shown on the record beginning at 10:27 p.m., when the jury retired to consider its verdict.

THE JURY IS OUT OF THE COURTROOM AT 10:27 P.M.

THE COURT: Mr. Briley, any exceptions to the Charge on behalf of the State?

MR. BRILEY: None, Your Honor.

THE COURT: Any exceptions to the Charge on behalf of the Defendant?

MR. ASHLEY: None, Your Honor.

THE COURT: All right. If you all will get the indictment and all of the evidence and send it out to the Jury.

COURT IS IN RECESS AWAITING THE JURY'S VERDICT.

THE JURY IS BACK AT 12:00 MIDNIGHT.

THE COURT: Mr. Foreman, has the Jury reached a verdict?

MR. FOREMAN: No, sir.

THE COURT: All right, sir.

MR. FOREMAN: Not at the present time.

THE COURT: All right, sir. Let me make this inquiry, Ladies and Gentlemen, of course, as I said this afternoon, I don't want any of you to feel like we are trying to put anybody between the rock and the hard spot or just pressure you into doing anything. We have the rooms reserved and we can very easily accomodate [sic] you now, to send for whatever you need to stay overnight if you feel it's going to be a problem, because, of course, as I indicated in my previous charge, this is only the first phase and depending on your findings in this, there may be a second phase. So, I'm just trying to inquire of you as to whether or not you would like to go ahead and go to bed and get some rest and start back in the morning?

MR. FOREMAN: I think that if we could have a few more minutes? Maybe fifteen?

THE COURT: All right, sir. As I said, of course, there is another phase to it, depending on what the finding is in the first and as I said, I want to again make it clear to you that I am not trying to pressure anybody or any or all of you. But if you say, give you a few more minutes, let's do that and see what can come of it. We haven't been out that long, but it's getting late now and I know for a lot of you, it's later than usually you stay up.

THE JURY IS OUT OF THE COURTROOM FOR DELIBERATIONS AT 12:03 A.M.

THE COURT: Mr. Briley, are there any exceptions to the Supplemental Charge?

MR. BRILEY: None, Your Honor.

THE COURT: I don't guess we can call it a Re-Charge. Mr. Ashley, any objections to the Supplemental Charge?

MR. ASHLEY: None as I know of, Judge.

THE COURT: Thank you, let the Court be at ease.

COURT IS IN RECESS AWAITING THE JURY'S VERDICT.

THE FOREMAN OF THE JURY ASKS THE COURT A QUESTION AT 12:35 A.M.

THE COURT: All right. Let the record show that the Foreman has come out and indicated that Mr. Chester Geesling [sic], he feels, is definitely extremely nervous and almost at the breaking point and that they have been trying to do what they could to placate him and keep something from happening and that Mr. Geesling [sic] has requested that he would like to be excused and Mr. Briley, I believe, you said that you will stipulate--

MR. BRILEY: The State will stipulate that he may be excused.

MR. ASHLEY: Under the circumstances, the Defense will stipulate that he may be excused.

THE COURT: All right, sir.

MR. BRILEY: Let's substitute the first alternate, is that--

THE COURT: Well, I think we ought to have the Foreman to advise the, after Mr. Geesling [sic] leaves, to advise the panel that we are not going to just, you know, start excusing at random, because, but I think they are all aware as I understand it from what you say of the situation--

MR. FOREMAN: Everybody else is just fine, but I mean, it is just that that fellow.

THE COURT: Yes, sir. Okay. Well, we'll then, let him go. Let him come on out then.

MR. FOREMAN: You just want me to tell him he can leave?

THE COURT: Yes, sir.

MR. FOREMAN: Because he doesn't want to make a big to do about it.

THE COURT: Right. Well, I haven't got a backdoor for him to go out. Mr. Weinstein?

MR. WEINSTEIN: Yes, sir.

MR. FOREMAN: Can I just tell him the gist of what we've been talking about?

THE COURT: All right. We have just excused a Juror by agreement of both Counsel and by the Court on word that has come out of the Jury Room here, so, we need to ask you to go in and take his place, please, sir.

MR. WEINSTEIN: All right, sir.

MR. WEINSTEIN, THE ALTERNATE GOES INTO THE JURY ROOM FOR DELIBERATIONS AT 12:42 A.M.

THE JURY IS BACK AT 12:45 A.M.

THE COURT: Mr. Foreman, has the Jury reached its verdicts?

MR. FOREMAN: Yes, sir, we have.

State's Exhibit No. 2, Vol. II at pp. 230-33.

The facts surrounding juror Greeson's dismissal and replacement, dimmed by a two-year interval, were amplified at a state habeas hearing. The Superior Court of Butts County, Georgia, the court which entertained the state habeas petition, did not make specific findings of fact and conclusions of law with respect to this primary question; rather its determination is in general terms and narrative in form. ² The court found that after the jury had deliberated on its verdict for three hours, the foreman "emerged from the jury room and told the judge that one of the jurors was sick," that after the trial judge announced that Greeson was unable to continue as a juror, "the first alternate was sent to the jury room and a guilty verdict was returned

                a few minutes later";  and that the trial judge did not err "when it had been made to appear to the court a juror was ill and unable to continue."    The court then stated that although Greeson had a reasonable doubt concerning Peek's guilt, "he was not asserting that doubt in the form of a certain vote 2a in the jury room but was, because of his physical and emotional condition not participating in the deliberations at all."    The habeas court concluded:  "[T]he replacement of juror Greeson with the first alternate Weinstein was done for good cause.  The procedure followed complied with applicable Georgia statutes and did not violate any federal constitutional rights of Petitioner."    The court went on to state that "alternate Weinstein testified that he went over the evidence with the other jurors," and concluded that the amount of time the jury deliberated with alternate Weinstein before returning the guilty verdict was of "no legal significance."    No decisional law was cited in support of the court's conclusions
                

II

At the threshold of reaching a decision, we face the conformance with the provision of 28 U.S.C. Sec. 2254. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (Mata I ), and Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (Mata II ). In Mata II, the Supreme Court characterized the holding in its prior decision as follows:

We held that 28 U.S.C. Sec. 2254(d) requires federal courts in habeas proceedings to accord a presumption of correctness to the state court findings.... We held that if a federal court concludes that a presumption of correctness does not control, it must provide a written explanation of the reasoning that led it to conclude that one or more of the seven factors listed in Sec. 2254 were present or the reasoning which led it to conclude that the state finding was "not fairly supported by the record." 449 U.S. at 551 .

455 U.S. at 593, 102 S.Ct. at 1304.

In the instant case, the state habeas court, after an evidentiary hearing, made purported findings with respect to the replacement of juror Greeson by alternate juror Weinstein. Because none of the first seven factors listed in Sec. 2254(d) is present, Mata II directs us to defer to those findings unless they are not fairly supported by the record. Upon a close examination of the historical facts occurring during the trial as shown by both the trial record and the habeas hearing, we are...