Sonnier v. Maggio

• Decision Date: 10 November 1983
• Docket Number: No. 83-4498,83-4498
• Citation: 720 F.2d 401
• Parties: Elmo Patrick SONNIER, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, et al., Respondents- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 401

720 F.2d 401

Elmo Patrick SONNIER, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, et

al., Respondents- Appellees.

No. 83-4498.

United States Court of Appeals, Fifth Circuit.

Nov. 10, 1983.

Rehearing and Rehearing En Banc Denied Dec. 15, 1983.

Certiorari Denied Feb. 21, 1984.

See 104 S.Ct. 1331.

Michael Baham, Metairie, La., for petitioner-appellant.

Bernard E. Boudreaux, Jr., Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., New Iberia, La., for respondents-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, RANDALL and HIGGINBOTHAM, Circuit Judges.

RANDALL, Circuit Judge:

On August 16, 1983, the district court denied the application of petitioner Elmo Sonnier for federal habeas corpus relief, but granted a certificate of probable cause to appeal. On August 17, 1983, we stayed Sonnier's scheduled execution to permit him an opportunity to address the underlying merits of his appeal. Pursuant to an expedited schedule, the parties have briefed the issues, and orally argued the merits on October 24, 1983. For the reasons set forth below, we affirm the denial of the petition for a writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND.

The prosecution against Sonnier arose out of the 1977 murder of two teenagers in Iberia Parish, Louisiana. According to the evidence at trial, Sonnier and his brother abducted the victims from their car under the guise of being police officers. The brothers drove the victims to a remote field, raped one of them, and murdered both. The brothers repeatedly shot their victims in the head from close range. The Louisiana Supreme Court has twice discussed the particulars of the crime at length. See State v. Sonnier, 402 So.2d 650 (La.1981), cert. denied, --- U.S. ----, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); State v. Sonnier, 379 So.2d 1336 (La.1979).

An Iberia Parish jury initially found Sonnier guilty of first degree murder and condemned him to death in April of 1978. Although the Louisiana Supreme Court affirmed Sonnier's conviction, it vacated the death sentence and remanded for a second trial on the penalty only. State v. Sonnier, 379 So.2d at 1368-72. After a change of venue, a St. Mary's Parish jury returned a second verdict of death. The Louisiana Supreme Court affirmed the sentence on appeal, and the trial court set the execution for August 19, 1983.

Eight days before his scheduled execution, Sonnier filed the present habeas corpus petition. He raised six issues: (1) the prosecution allegedly excluded jurors with personal or religious scruples against capital punishment; (2) application of Louisiana Code of Criminal Procedure, article 798(2)(b), purportedly violated the constitution by excluding from the jury opponents of capital punishment without also authorizing exclusion of proponents of capital punishment; (3) the trial court did not give instructions adequate to inform the jury of the relative weight it should accord to statutorily-defined aggravating and mitigating circumstances; (4) the death penalty in this case allegedly imposed excessive punishment disproportionate to death sentences in other cases; (5) the conviction resulted from the warrantless search of his automobile in violation of the fourth amendment; and (6) the trial court deprived him of access to a court-appointed psychiatric expert. The state concedes that Sonnier has exhausted his state remedies with respect to these issues.

Three days before Sonnier's scheduled execution, the district court denied the petition and entered judgment dismissing the action. At the same time, the district court denied Sonnier's motion for a stay of execution. When Sonnier filed the present appeal, however, the district court issued a certificate of probable cause and granted Sonnier pauper status on appeal. Sonnier's motion to this court for a stay of execution ensued.

Issuance of a certificate of probable cause requires that the petitioner make a "substantial showing of the denial of [a] federal right." Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). Once the certificate has issued, this court must afford the petitioner an opportunity to address the merits. Barefoot v. Estelle, --- U.S. ----, 103 U.S. 3383, 3394, 77 L.Ed.2d 1090 (1983). In order to prevent Sonnier's execution from mooting the issues on appeal, we were obliged to stay the execution. Sonnier v. Maggio, 714 F.2d 20, 21 (5th Cir.1983).

II. THE ISSUES.

1. Exclusion of Jurors.

Sonnier's first ground for appeal invokes Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court limited the states' authority to excuse prospective jurors for cause merely because they expressed conscientious objections to imposing the death penalty. Id. at 521-23, 88 S.Ct. at 1776-1778. Sonnier contends not only that the trial court improperly excluded jurors on the basis of their views on capital punishment in violation of Witherspoon, but also that the prosecution used peremptory challenges to remove from the panel any juror who expressed the slightest reservation about returning a verdict of death. ¹

Sonnier's petition is noticeably lacking in factual particulars. Although he attacks the composition of the jury that convicted him as well as the jury that sentenced him, he does not challenge the excusal of specific jurors. Rather, Sonnier relies upon a conclusory allegation that the selection process produced panels uncommonly willing to condemn him to death. As the district court noted, however, this circuit has recognized that a state may excuse jurors "so unequivocally opposed to the death penalty that they would not follow the law on the subject." Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). The district court rejected Sonnier's first claim on the authority of Smith v. Balkcom, apparently because Sonnier had not alleged that the state court actually dismissed any juror who expressed equivocal opposition. Sonnier now complains that the district court failed to ascertain whether each excused juror sufficiently expressed unalterable opposition to the death penalty.

We assume, without deciding, that Sonnier's petition adequately presented an issue of the exclusion of particular jurors, ² and that the state concedes exhaustion of state remedies with respect to this claim. We have examined the voir dire preceding the penalty phase of Sonnier's trial and, perhaps out of an excess of caution, the voir dire preceding the guilt phase of Sonnier's trial as well. Pretermitting the problem of the appropriate standard of review, ³ we find that the state trial court excused no juror as to whom the grant of the motion to excuse for cause violated Witherspoon. ⁴

The state does not run afoul of Witherspoon where the excluded juror has unequivocally stated his or her inability to vote for the death sentence without regard to the evidence adduced. E.g., Bell v. Watkins, 692 F.2d 999, 1006 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Williams v. Maggio, 679 F.2d 381, 384 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1339 (1983). Even though the juror may equivocate initially, exclusion comports with our interpretation of Witherspoon if the juror ultimately concludes that he or she opposes the death penalty irrevocably. See id. at 385-89; O'Bryan v. Estelle, 714 F.2d 365, 381 (5th Cir.1983).

A. The Penalty Jury.

Turning first to the jury that determined the penalty, we note that the state judge excused a total of twelve potential jurors for cause. ⁵ Of these, three stated that they had already formed an opinion about the merits on the basis of prior knowledge of the case. ⁶ These excusals obviously did not implicate Witherspoon. Each of the remaining nine jurors indicated that he or she could not vote for the death penalty in this case, or that he or she could never vote for the death penalty.

We conclude that these jurors made their irrevocable opposition to the death penalty clear. Five of the jurors repeatedly stated that they could never vote for the death penalty regardless of the evidence. ⁷ Three of the jurors expressed uncertainty at some stage of the questioning, but ultimately stated that, at least in this case, they could not return a verdict of death. ⁸ The remaining juror stated that he was "neutral" on the issue of capital punishment. Nevertheless, he unequivocally stated that his neutrality would prevent him from participating in deliberations concerning the death penalty, and that no evidence would move him to vote for such a verdict. ⁹

B. The Trial Jury.

Even if Sonnier could challenge on Witherspoon grounds the selection process for the original jury that convicted him, we do not perceive any shortcoming in that process. First, we note that Sonnier did not oppose any of the state's motions to excuse jurors for cause. ¹⁰ Of the jurors excused on the state's motion, only one would have presented any serious issue under Witherspoon. Juror Rodrigue originally stated that she "couldn't bring [sic] the death of another human being." State Exh. 1 G, at 1014. Thereafter, she retracted the statement, but went on to state that she might require Sonnier to produce evidence before she could change her opinion about his guilt. Id. at 1021. The court excused the juror without objection. Id. at 1021-22. We find no Witherspoon violation in these circumstances.

C. Peremptory Challenges.

Sonnier also contends that the prosecution accomplished an end prohibited by Witherspoon by exercising its peremptory challenges to exclude jurors who expressed any hesitancy about imposing the death penalty. Exercise of peremptory challenges, however, does not implicate Witherspoon. Jordan v. Watkins, 681 F.2d 1067,...