Peek v. Kemp

• Decision Date: 05 March 1986
• Docket Number: No. 82-8713,82-8713
• Citation: 784 F.2d 1479
• 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 1479

784 F.2d 1479

54 USLW 2506

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.

March 5, 1986.

George H. Kendall, Atlanta, Ga., Russell F. Canan, Washington, D.C., for petitioner-appellant.

Mary B. Westmoreland, Nicholas G. Dumich, Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE VANCE and ANDERSON, Circuit Judges:

KRAVITCH, JOHNSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

On the evening of June 5, 1976, Grady Peek, Jr. and James Jones were brutally beaten to death. Petitioner David Peek was arrested in connection with the murders early the following morning. After being advised of his rights, petitioner confessed to both beatings, but claimed he did so in self-defense. Peek later recanted this statement and denied any involvement in the murders. He was eventually tried on two counts of capital murder and one of kidnapping. The state's primary witness at trial was Pearlie Mae Lawrence, Grady Peek's girlfriend.

Pearlie Mae Lawrence testified that on the night of the murder, she, Grady Peek, and David Peek went to the White Plains Club in Siloam, Georgia. They returned from the club to the home of Barbara Peek, petitioner's sister. Ms. Lawrence testified that after petitioner's efforts to rape her were thwarted by Grady Peek, petitioner attacked Grady with a stick and beat him to death. He then put the body and the stick in the car, and forced Ms. Lawrence in the car with him. After driving a short distance, petitioner ran the car into a ditch. He then raped Ms. Lawrence.

James Jones, who was living in Barbara Peek's house, came outside to investigate. After petitioner raped Ms. Lawrence he got out of the car and saw Jones behind it. He grabbed the stick with which he had beaten Grady Peek and beat Jones to death. He put Jones' body in the back seat of Jones' own car and Grady's body in the trunk. He locked Ms. Lawrence in the trunk with Grady's body. Petitioner returned to Barbara Peek's house and told Barbara that someone had hurt James Jones. After the police were summoned and Ms. Lawrence gave her statement, petitioner was taken into custody.

On July 28, 1976, Peek was tried on two counts of murder and one count of kidnapping in a superior court in Greene County, Georgia. A jury found him guilty on all three counts and he was sentenced to death. His convictions and sentences were affirmed as to the murders, but the Georgia Supreme Court reversed his death sentence on the kidnapping conviction. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1972). Following two days of hearings, his convictions and sentences were also upheld in state habeas proceedings. The district court for the Middle District of Georgia denied his petition for habeas corpus relief under 28 U.S.C. Sec. 2254. A panel of this court reversed the district court's denial of the writ and remanded with instructions that the writ be granted. Peek v. Zant, 746 F.2d 672 (11th Cir.1984).

We granted the petition for rehearing en banc to consider two issues. ¹ First, in a section of this opinion written by Judge Vance we consider whether constitutional error occurred when the Greene County trial court replaced a regular juror, Chester Greeson, with an alternate juror, Ben Weinstein, without personally questioning Greeson to ascertain whether he was too ill to continue deliberations and without instructing the jury to begin its deliberations anew with the substitute juror. In a second section written by Judge Anderson we consider whether the trial court's instructions regarding mitigating circumstances were constitutionally deficient.

SECTION I. REPLACEMENT OF JUROR

VANCE, Circuit Judge:

(1) Replacing Juror Greeson with Alternate Juror Weinstein

Peek's trial began at 9:00 a.m. on July 28, 1976. At 10:27 p.m. the jury retired to Approximately thirty minutes later, the jury foreman returned to the courtroom and the following exchange took place on the record:

                consider its verdict.  At midnight the state trial judge sent for the jury and inquired whether a verdict had been reached.  The jury foreman responded "no sir."    The court then asked the jurors if they wanted to retire for the night or continue their deliberations.  He informed them that hotel accommodations had been arranged and that the decision to continue or break for the evening was entirely up to them.  The jury foreman asked the court to allow them a few more minutes and the court agreed
                

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 [sic] 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.

At this point juror Chester Greeson was replaced on the jury by first alternate Ben Weinstein. Subsequent fact-finding revealed that at the time of his dismissal, Greeson was the lone holdout as to guilt. This was unknown to the court and both attorneys at the time. Weinstein entered the jury room and the jury returned with guilty verdicts as to all three counts a short time later. ² The jury then heard arguments on the sentencing phase and after further deliberation reached the decision that Peek should be put to death.

Peek argues that the state trial court committed constitutional error by failing to observe and question Greeson personally prior to dismissing him, and by failing to instruct the jury that they should begin their deliberations anew following the substitution of first alternate Weinstein for juror Greeson. Peek contends that the consequence of these errors was a denial of his right to due process. We conclude that petitioner has failed to demonstrate that the circumstances surrounding juror Greeson's dismissal and first alternate Weinstein's We begin our analysis by reviewing the findings of fact made by the state habeas court. Section 2254 requires that these findings be accorded a presumption of correctness if they are fairly supported by the record. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). While the state court's habeas findings are not a model of clarity, the following principal findings are present:

substitution were fundamentally unfair and therefore affirm the district court's denial of the writ as to this claim.

(1) Greeson harbored a reasonable doubt as to Peek's guilt at the time he requested to be relieved of his duties;

(2) Greeson's emotional and physical state, however, impaired his voting and participating in deliberations;

(3) The foreman informed Judge Duke that the juror was ill;

(4) Judge Duke formed the correct impression that juror Greeson was ill and unable to continue; and

(5) Both the prosecution and defense agreed to the substitution of first alternate Weinstein for juror Greeson.

Our review indicates that these findings of fact are fairly supported by the record, and we therefore accord them the presumption of correctness required by 28 U.S.C. Sec. 2254.

Turning now to the legal consequences of Greeson's dismissal, we begin by recognizing as we have previously that the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law. See Green v. Zant, 715 F.2d 551, 555-56 (11th Cir.1983) (Green I), cert. denied, --- U.S. ----, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984).

Juror Greeson was excused and replaced pursuant to Ga.Code Ann. Sec. 15-12-172 which provides:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

Peek contends that Greeson's excusal and the substitution of first alternate Weinstein was in violation of the statute because Greeson was not ill at the time he was excused. In light of the findings by the state habeas court and the supporting evidence in the record, we reject that contention. As...