# James Lee Spencer v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Center, Respondent

> Court of Appeals for the Eleventh Circuit · January 23, 1986 · 781 F.2d 1458

URL: https://www.frixlaw.com/law-library/cases/9474474

## Case

- **Full name:** James Lee SPENCER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 23, 1986
- **Citations:** 781 F.2d 1458; 1986 U.S. App. LEXIS 21447
- **Precedential status:** Published
- **Opinion:** Concurrence by Tjoflat
- **Judges:** Godbold, Ro-Ney, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474474

## How later opinions describe it (automated extraction)

- holding that "novel or sporadically applied state procedural grounds," as well as retroactively applied state procedural rules, are "inadequate to preclude federal review of federal constitutional claims"

## Opinion text

TJOFLAT, Circuit Judge,
specially concurring, in which HATCHETT and CLARK, Circuit Judges, join:
I concur in Part I of the majority’s opinion and in its decision to adhere to the panel’s treatment of issues one, three, and four, see ante at 1460. For the reasons expressed below, I agree with the result reached in Part II of the majority’s opinion, that the petitioner is entitled to present to the district court his challenge to the constitutionality of the jury selection process utilized in his trial.
The record in this case indicates that, on January 7, 1975, prior to the commencement of voir dire, petitioner presented the trial judge with a written petition informing the court that the State was about to impanel a jury drawn from an array from which blacks were systematically excluded, in violation of the United States Constitution. Admittedly, petitioner’s challenge was in the form of a removal petition addressed to the federal district court. The unconstitutionality of the jury selection process, however, was cited as the grounds for removal, fully apprising the trial judge of the petitioner’s contention that the State was about to violate his constitutional rights. Rather than address, or even explore, the merits of petitioner’s objection, the trial court merely determined that it retained jurisdiction over the case, because the federal district court had not received the removal petition, and proceeded tentatively to qualify nineteen jurors by the end of the day.
Before the commencement of proceedings the next day, petitioner again directed the trial judge’s attention to his claim that the State’s jury selection process violated the Constitution. This time, his claim was presented in the context of a formal motion, accompanied by a brief, challenging the jury array. 1 Once again, the trial judge declined to address the merits of petitioner’s contention, ruling that the motion was not timely. Following his conviction, petitioner sought to raise his jury challenge before the state habeas court. The Georgia Supreme Court affirmed the state habeas court’s refusal to address the merits of petitioner’s claim because it had not been timely asserted in the trial court. Spencer v. Hopper, 243 Ga. 532 , 255 S.E.2d 1 , cert. denied, 444 U.S. 885 , 100 S.Ct. 178 , 62 L.Ed.2d 116 (1979). Petitioner then brought this petition seeking a writ of ha-beas corpus.
There is no question that the district court had the power to entertain the petition in a case such as this. See Francis v. Henderson, 425 U.S. 536, 538 , 96 S.Ct. 1708, 1710 , 48 L.Ed.2d 149 (1976). However, because of the valid and important policy considerations involving comity and the orderly administration of justice which are delineated in Wainwright v. Sykes, 433 U.S. 72, 88-90 , 97 S.Ct. 2497, 2507-08 , 53 L.Ed.2d 594 (1977) and Francis v. Henderson, 425 U.S. at 539-42 , 96 S.Ct. at 1710 -II, federal courts frequently must enforce a state’s contemporaneous objection rule and decline to exercise their power to entertain an application for a writ of habeas corpus. A careful reading of Sykes and Francis discloses two important goals served by state contemporaneous objection rules. 2 First, such rules allow the trial judge to correct possible errors in the most timely and efficient fashion, when the evidence is the freshest. In a case such as this, where the objection must be made at the outset of the proceedings, an error can be remedied prior to incurring the burden and expense of trial and before jeopardy attaches. Considerations of comity are *1473 also promoted in this manner. Second, contemporaneous objection rules prevent a defendant from “sandbagging,” taking a chance on a jury verdict while reserving his claim in the event of an unfavorable verdict. These important considerations mandate that a federal court decline to entertain a claim where the petitioner failed seasonably to present it to the trial court, unless the petitioner can show cause for not raising the claim earlier and resulting prejudice.
In this instance, petitioner made the trial court aware of his objection to the jury array at the outset of the proceedings. He raised the matter prior to the commencement of voir dire 3 and again in a formal motion at a time when all that had occurred was the tentative qualification of some of the jurors. 4 All of the policy considerations in favor of a contemporaneous objection rule were fully vindicated. The trial judge had the opportunity to correct the alleged error before any of the burdens or expenses of trial were incurred, prior to the attachment of jeopardy, while the issue was fresh, and at the time when it would be least disruptive to the administration of justice. It is not even arguable that petitioner was attempting to sandbag the State. Because the issue was seasonably and squarely presented to the trial court, the state contemporaneous objection rule cannot operate to bar habeas review of petitioner’s claim. See St. John v. Estelle, 563 F.2d 168, 172 (5th Cir.1977) (en banc) (Tjoflat, J., dissenting), cert. denied, 436 U.S. 914 , 98 S.Ct. 2255 , 56 L.Ed.2d 415 (1978). 5
Federal courts enforce state contemporaneous objection rules because such rules serve important and legitimate interests. *1474 Where those interests have been fully vindicated, as in this case, enforcement of the state's procedural bar would be “giving effect to the contemporaneous-objection rule for its own sake” and would be to “ ‘resort to an arid ritual of meaningless form.’ ” Henry v. Mississippi, 379 U.S. 443, 449 , 85 S.Ct. 564, 568 , 13 L.Ed.2d 408 (1965) (quoting Staub v. City of Baxley, 355 U.S. 313, 320 , 78 S.Ct. 277, 281 , 2 L.Ed.2d 302 (1958)). I would therefore hold that, because petitioner presented his objection seasonably to the trial judge, he is entitled to federal habeas review of his claim.
. Given the trial judge's treatment of his removal petition, petitioner’s formal motion was made as soon as could possibly have been expected under the circumstances.
. The Georgia courts have expressed these same two considerations as underlying their contemporaneous objection rule. See Young v. State, 232 Ga. 285 , 206 S.E.2d 439, 442 (1974); Williams v. State, 210 Ga. 665 , 82 S.E.2d 217 , 219-20 (1954), remanded sub nom. Williams v. Georgia, 349 U.S. 375 , 75 S.Ct. 814 , 99 L.Ed. 1161 (1955); Williams v. State, 31 Ga.App. 173 , 120 S.E. 131, 132 (1923).
. Curiously, none of the courts that have considered petitioner's claim have come to grips with the effect of his January 7 "removal petition” in light of the purposes of the contemporaneous objection rule. The majority opinion, ante p. 1465 n. 11, and the panel opinion, 715 F.2d at 1571 n. 8, expressly decline to address the issue of the January 7 petition. The state trial court made no response to the removal petition other than to conclude that it did not affect the court’s jurisdiction. The state habeas court "found” that petitioner’s motion to challenge the jury was in fact filed on January 8, but did not address the effect of the January 7 petition. See Spencer v. Hopper, 243 Ga. 532 , 255 S.E.2d 1, 3 , cert. denied, 444 U.S. 885 , 100 S.Ct. 178 , 62 L.Ed.2d 116 (1979). The Georgia Supreme Court agreed with the state habeas court and also did not address the January 7 petition. Id. The implication that may be drawn is that the Georgia courts did not find the January 7 petition legally sufficient to satisfy the contemporaneous objection rule, but no discussion of this point appears.
. The majority opinion determines that it has "long been the law in Georgia” that a constitutional challenge to the composition of the jury array must be made prior to the time voir dire commences. Ante p. 1464. The panel opinion concluded that, prior to this case, the precise time such a challenge must be raised has not been clear as a matter of Georgia law. 715 F.2d at 1569-73. I would submit that the panel’s conclusion is a more accurate summation of Georgia law.
It is undisputed that Georgia law requires a challenge to the jury array be made prior to the time a jury is "put upon” a defendant. It is also undisputed that a challenge made for the first time after a jury verdict, in a motion for a new trial or in the habeas context, is not timely. However, it has not been clear when the process of putting the jury on the defendant begins and when the process ends. There are Georgia cases indicating that a jury is "put upon” a defendant prior to the commencement of voir dire, e.g., Britten v. State, 221 Ga. 97 , 143 S.E.2d 176, 178 (1965), cert. denied, 384 U.S. 1014 , 86 S.Ct. 1944 , 16 L.Ed.2d 1035 (1966); Felker v. Johnson, 53 Ga.App. 390 , 186 S.E. 144, 146 (1936), as well as cases indicating that voir dire is included within the process of putting a jury on a defendant, e.g., Walls v. State, 161 Ga.App. 235 , 291 S.E.2d 15, 17-18 (1982); see Pulliam v. Balkcom, 245 Ga. 99 , 263 S.E.2d 123, 126-27 , cert. denied, 447 U.S. 927 , 100 S.Ct. 3023 , 65 L.Ed.2d 1121 (1980) (must show cause for failure to challenge jury composition at or before trial). I have found no Georgia case where a jury challenge was raised for the first time in the early stages of voir dire and was held to be untimely. Even if the majority's interpretation of Georgia law is correct, however, it is clear that the trial judge was made aware of petitioner’s objection prior to the commencement of voir dire.
. After jury qualification was completed in petitioner’s trial, the judge asked the prosecutor whether the State was ready to proceed. The prosecutor responded that it was, but would argue the merits of petitioner’s jury challenge if petitioner insisted on the motion. This indicates that, at that time, the prosecutor believed the contemporaneous objection requirement had been satisfied or, at a minimum, the State was not insisting upon compliance with it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474474. Public record. Not legal advice.