Kenneth Granviel v. W. J. Estelle, Jr., Director, Texas Department of Corrections

HUNTER, District Judge,

dissenting:

I dissent from the majority opinion, only insofar as it concludes:

“[TJhat Harrison’s exclusion for cause constituted a Witherspoon violation.”

The basic facts developed in the trial are set forth in the opinion of the Texas Court of Criminal Appeals in Granviel v. State, 552 S.W.2d 107 , cert. denied 431 U.S. 933 , 97 S.Ct. 2642 , 53 L.Ed.2d 250 . It is not disputed that Granviel, in two separate killing sprees, stabbed to death five women and two children. The sufficiency of the evidence to support the jury’s verdict of guilty is not challenged by anyone.

Witherspoon involved a state procedure for selecting jurors in capital punishment cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context the Court held that a state may not constitutionally execute a death sentence imposed by a jury culled of all those who reveal during voir dire examination that they had conscientious scruples against the death penalty. Most of the veniremen challenged for cause were excluded with no effort to ascertain whether their scruples would compel them to vote against capital punishment. The Court specifically defined the issue and noted:

It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon v. Illinois, 391 U.S. 510 at 513 , 88 S.Ct. at 1772 . The Supreme Court has considered Witherspoon in numerous cases since that original opinion was handed down in 1968. 1 The most recent expression of the Supreme Court is found in Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980). In an opinion written by Justice White, the Court, in making reference to this line of cases, stated:

This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

The majority holds that venireman Donald L. Harrison’s exclusion for cause constituted a Witherspoon violation. The opinion concludes:

*690 “These questions and answers fall far short of an affirmation by Harrison that he would automatically vote against the death penalty, regardless of the evidence, or that his objections to capital punishment would prevent him from making an impartial decision as to guilt.”

We cannot agree. In analyzing the record I find that appellant’s rights were fully protected, and that Harrison was properly questioned as to his commitment to vote against the death penalty. The relevant questioning and answering follows:

DONALD L. HARRISON

Q. (By Prosecutor) The defendant in this case is charged with capital murder. There are only two punishments for the offense of capital murder and that is either death or life in the penitentiary.

Now, do you have conscientious scruples against the infliction of the death penalty as a punishment for crime? A. I don’t know what that means.

Q. Let me ask you if you, personally sitting as a juror, could ever vote so as to inflict the death penalty?

A. No, I don’t think I could.

Q. That is a definite prejudice or feeling that you have that you would not change? You just don’t feel like you would be entitled to take another person’s life in that fashion.

A. (Venireman nods.)

Q. Okay, you could not?

A. No. I could not.

MR. WILSON: We challenge, Your Honor.

THE COURT: The defense have any objections?

MR. DICKENS: We don’t have any questions.

THE COURT: All right.

The Court feels that the State’s challenge for cause is qualified in this cause and supported by the evidence. You will be excused, then, Mr. Harrison.. Thank you very much. (R. 711-12).

Straightforward application of the With-erspoon line of cases as enunciated in Adams leads me to one self-evident conclusion: Harrison entertained reservations about capital punishment which would have prevented him from making an impartial decision as to defendant’s guilt. 2 Witherspoon mandates no precise questions and answers. The test is “not to be applied with the hypertechnical and archaic approach of a 19th Century pleading book, but with realism and rationality.” 3 While the mere demeanor of a venireman cannot contradict his express words so as to give them a meaning in opposition to that which they state, nevertheless, in those instances where the meaning is apparent, elements such as attitude and tone of voice are relevant factors in conveying the precise message intended. 4 The trial judge and counsel were present, with the opportunity to observe and further question Harrison. Here, we think the express words brought forth this message loud and clear: Harrison’s attitude toward capital punishment would have prevented him from making an impartial decision on both the guilt and penalty facets of the trial. Moreover, the action of the trial judge (who had seen and heard) in excusing the juror, and appellant’s counsel’s failure to object, emphasize the appreciation of those who were present that Harrison’s views concerning capital punishment would substantially impair the performance of his duties as a juror in this case.

There were five veniremen whose exclusion is challenged. The majority, having concluded that Harrison was improperly excused for cause, did not find it necessary to discuss the challenges to Lipscomb, Wallace, Cox and Vernon. The relevant voir dire examination of each is reproduced in the *691 Appendix. Lipscomb stated that he would automatically vote against the imposition of the death penalty. Wallace affirmed that she did not believe in the death penalty and that her feelings were so strong that she could not be involved. Cox made no “bones” about it. She was opposed to the death penalty and she would never vote to assess it. Vernon equivocated when first questioned, before concluding that in the final analysis she could not vote to impose a death penalty. Each of these excluded veniremen made it “unmistakably clear” that they could not abide by Texas law as it elated to the death penalty. They were thus properly excluded under Witherspoon .

In a larger sense, this case emphasizes the frustration of states in their effort to enforce their constitutionally valid capital punishment statutes. The majority holds that Witherspoon requires it to intervene to set aside the death penalty in this episode of murder, the nature of which all of us agree is so gruesome that we “gladly refrain from repeating.” I think the conclusion is completely without support on the record.

The State of Texas had every right to insist that any juror whose views on capital punishment would substantially impair the performance of his duties as a juror be excused for cause. The State exercised that right and challenged five jurors. The trial court was imminently correct in sustaining each challenge.

In the opinion of this court, written by Judge Gee in Burns v. Estelle, 512 F.2d 1297 at 1302 , we note this language:

We cannot close without voicing our dissatisfaction at the unfortunate result to which logic and our lights on Wither-spoon have driven us. Indeed, it is with something like agony — though only a pale shadow of what must have been felt by the victim of Burns’ ghastly crime — that we intervene to set aside in part the operation of state policy and procedures aimed at preventing further atrocities of this kind. Nor do we retreat an inch from our observation in Spinkellink v. Wainwright 5 that “the State also enjoys the right to an impartial jury .. . and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution.” After all, the prosecution speaks in some degree for Burns’ helpless and pitiful victim and to that degree justly claims in his right.

But the requirements of Witherspoon are clear, and the Supreme Court has made equally clear in later decisions that it will not countenance their grudging or ungenerous application.

I appreciate the difficulty of any endeav- or to synthesize a precise Witherspoon rule, but conclude, without hesitation, that a faithful observance of Supreme Court authority does not require this court to intervene and set aside the death penalty in this case. 6

With deference, I dissent, and would dismiss the habeas petition in its entirety.

. Boulden v. Holman, 394 U.S. 478 , 89 S.Ct. 1138 , 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262 , 90 S.Ct. 1578 , 26 L.Ed.2d 221 (1970); Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976); Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980).

. This was the narrow issue involved in With-erspoon, 391 U.S. 512 at 513 , 88 S.Ct. 1772 at 1772. See also footnote 21, 391 U.S. 522 , 88 S.Ct. 1777 .

. Ashe v. Swenson, 397 U.S. 436, 444 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469 .

. Tezono v. State, 484 S.W.2d 374, 383-384 (Tex.Cr.App. 1972).

. 442 U.S. 1301 , 99 S.Ct. 2091 , 60 L.Ed.2d 649 (1980).

. An examination of the facts of Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), 626 F.2d 396 en banc (1980), reveals clear distinctions. There, the prospective juror (Mrs. Doss) testified only that the presence of the penalty would “affect” her deliberations, with little or no indication of how profound that effect would be. Defense counsel desired to question her further; the trial court abruptly “cut off’ further questioning. Here, Harrison stated that he did not think he could ever vote to inflict the death penalty, and in response to further questioning agreed that he could not vote to take another person’s life. It is difficult to psychoanalyze a person’s thinking, but the message from Harrison contains what I consider to be unequivocal avowals that he could not vote for the death penalty.