Turner v. Bass

• Decision Date: 25 January 1985
• Docket Number: No. 84-4004,84-4004
• Citation: 753 F.2d 342
• Parties: Willie Lloyd TURNER, Appellant, v. Gary BASS, Superintendent, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 342

753 F.2d 342

Willie Lloyd TURNER, Appellant, v. Gary BASS, Superintendent, Appellee.

No. 84-4004.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1984.

Decided Jan. 25, 1985.

J. Lloyd Snook, III, Charlottesville, Va. (Paxson, Smith, Gilliam & Scott, Charlottesville, Va., on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.

Before WIDENER, HALL and PHILLIPS, Circuit Judges.

WIDENER, Circuit Judge:

In December 1979 Willie Lloyd Turner was tried by a jury in Northampton County, Virginia and found guilty of capital murder. ¹ Pursuant to Va.Code Sec. 19.2-264.4, the jury sentenced Turner to death. Turner unsuccessfully appealed his conviction and sentence to the Virginia Supreme Court. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980). The United States Supreme Court denied Turner's petition for a writ of certiorari. 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981).

Turner then filed a petition for a writ of habeas corpus in the circuit court of Southampton County, Virginia. That petition was denied. The Virginia Supreme Court affirmed that denial. The United States Supreme Court once again denied Turner's petition for a writ of certiorari. 462 U.S. 1112, 103 S.Ct. 2465, 77 L.Ed.2d 1341 (1983).

Turner next sought relief in the federal courts. On July 27, 1983, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia, raising numerous constitutional issues. ² That petition was amended on March 20, 1984. The petition was initially denied on May 23, 1984, and a motion to alter or amend that judgment was denied July 19, 1984. The district court issued a certificate of probable cause, thus allowing Turner to appeal the denial of habeas corpus relief. This denial serves as the basis of the present appeal. ³ We affirm.

A brief summary of the facts leading to Turner's conviction are necessary for an understanding of the issues presented. On July 12, 1978, Turner entered Smith Jewelers in Franklin, Virginia, armed with a sawed-off shotgun, and demanded that the store owner W. Jack Smith give him money and jewelry. A store employee and a customer were also present in the store at the time. Another customer entered during the robbery. Smith set off the store's silent alarm, and momentarily police officer A.D. Bain arrived on the scene and inquired about the activation of the alarm. Bain's pistol was taken by Turner. Turner then told Smith to turn the alarm off and keep filling bags with jewelry.

Turner soon became concerned that other police officers would respond to the alarm. He then fired a pistol shot into the back of the store. Officer Bain tried to assure Turner that no other policemen would be answering the alarm. Without any warning and with no provocation, Turner then shot store owner, Smith, in the head. The shot in the head did not kill Smith. It passed through his scalp, but apparently not through the skull. It caused bleeding on the coverings of the brain and bruised the brain's surface. Smith slumped and then fell helplessly to the floor. Officer Bain pleaded with Turner not to shoot anyone else, and offered to take Turner anywhere that he wanted to go. Turner then stated that he was "going to kill ... [Smith] for snitching on [him]." He then shot Smith, who was then still living, helpless and "gurgling," twice in the chest. One of these shots was in the lungs, one in the heart. Officer Bain was then able to disarm and subdue Turner. Smith died of the wounds in his chest.

I

We turn now to the several issues raised on appeal. First, Turner contends that the district court erred in upholding the trial court's refusal to permit examination of the jury on voir dire concerning racial prejudice. He contends that because he is black and the murder victim was white the trial court should have questioned jurors about the existence of racial prejudice, and that his constitutional rights to a fair trial were violated by the court's refusal. ⁴

A criminal defendant such as the defendant here has a constitutional right under the Sixth and Fourteenth Amendments to the Constitution to be tried by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This does not entitle the defendant, however, to examine jurors on voir dire about every matter that may prejudice a juror against the defendant. But, where special circumstances exist, a criminal defendant may have a constitutional right to have veniremen questioned on racial prejudice. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976).

The Supreme Court found such special circumstances in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Ham, a black man, was convicted in a South Carolina court of possession of marijuana. His defense at trial was that he was framed by law enforcement officials because of his civil rights activities. Ham was known throughout the community for his civil rights work. The trial court refused to question the jurors about possible racial prejudice against Ham. The Court found a due process violation in the trial court's failure to interrogate the jurors on the issue of racial bias.

Three years after its decision in Ham, the Supreme Court refused to create a per se rule requiring voir dire on racial prejudice in any case where the defendant is of a different race from the victim. Ristaino v. Ross, supra. Ross, a black male, was tried in a Massachusetts court for armed robbery, assault and battery with a dangerous weapon and assault and battery with the intent to commit murder. The victim was a white security guard. The Court rejected the court of appeals' decision that such voir dire should be required because the case involved a violent crime committed by a black against a white security guard. Such a holding, the Court said, interpreted Ham too broadly. Ham represented a fact specific situation in which racial issues were "inextricably bound up with the conduct of the trial." Ristaino, supra, 424 U.S. at 597, 96 S.Ct. at 1021. The Court concluded that the mere fact that the victim was white and the defendant was black was less likely to distort the trial than were the special factors present in Ham. "The circumstances did not suggest a significant likelihood that racial prejudice might infect Ross' trial." 424 U.S. at 598, 96 S.Ct. at 1022. Thus, voir dire on racial prejudice was not constitutionally mandated.

Turner contends that his case involves special circumstances requiring voir dire on racial prejudice because he is charged with capital murder and that in and of itself is a special circumstance. He also contends that defendants who murder whites are more likely to be sentenced to death and therefore a special circumstance is created by this likelihood.

We reject both contentions. There must exist some special circumstance in the facts surrounding a particular case before such voir dire is constitutionally required. We are of opinion that the nature of the crime or punishment itself is not a special circumstance. Nor is the fact that the victim is white and the defendant black, as Ristaino specifically so held. We are also of opinion that the fact that a larger percentage of white victims' assailants are executed than are other races is not a special circumstance. "There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups." Rosales-Lopez, infra, 451 U.S. at 190, 101 S.Ct. at 1635.

An even more recent pronouncement from the Supreme Court involving a Mexican defendant confirms that "[o]nly when there are more substantial indications [than a victim of one race and the defendant of another or a defendant of any particular race] of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court's denial of a defendant's request to examine the juror's ability to deal impartially with the subject amount to an unconstitutional abuse of discretion." Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22 (1981).

The broad inquiry in each case must be "... whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be 'indifferent as [they stand] unsworne.' " Ristaino, 424 U.S. at p. 596, 96 S.Ct. at p. 1021. An examination of all of the circumstances presented here does not indicate there was a constitutionally significant likelihood that absent questioning about racial prejudice the jurors would not be indifferent as they stood unsworn. As Turner concedes, there is nothing special in the facts surrounding this case to suggest racial antagonism. That being true, the trial court did not commit constitutional error by refusing to ask the jurors the question copied in footnote 4 in the margin.

II

Turner next contends that the exclusion of juror Samuel Cypress for cause violated his Sixth and Fourteenth Amendment rights. Cypress was struck for cause over defense objections after the following colloquy:

Now, Mr. Cypress, do you have any religious or conscientious scruples or objections against the imposition of the death penalty?

Mr. Cypress: Well, really, I don't go for the death penalty.

The Court: Can you say yes or no to that question?

Mr. Cypress: No.

The Court: Or yes?

Mr. Cypress: Do I have any objection?

The Court: Yes.

Mr. Cypress: Yes.

The Court: Is your objection to the death penalty absolute?

Mr. Cypress: Well, I would say yes.

The Court: Could you in a proper case impose the death penalty?

Mr. Cypress: Didn't hear.

The Court: Could you in a proper case impose the death penalty?

Mr. Cypress: Well, I can't see where it helps any.

Turner argues that Cypress' responses do not show that he was...