September 20, 1989
JANICE BUTTRUM, Petitioner,
GARY BLACK, Warden, Middle Georgia Correctional Institute, Women's
The opinion of the court was delivered by:
HAROLD L. MURPHY, UNITED STATES DISTRICT JUDGE
Petitioner Janice Buttrum, a Georgia inmate
sentenced to death for murder, presents this petition for habeas
corpus relief pursuant to 28 U.S.C. ? 2254. She attacks both her
conviction for murder and her death sentence imposed by a jury in
1981. For the reasons set forth below, habeas corpus relief from
her conviction for murder shall be DENIED, and relief from her
sentence of death shall be GRANTED.
I. PROCEDURAL AND FACTUAL HISTORY.
A. Procedural History.
On August 29, 1981, a Whitfield County jury
found Janice Buttrum guilty of the
murder of Demetra Faye Parker, in violation of O.C.G.A. ? 16-15-1,
and of motor vehicle theft, in violation of O.C.G.A. ? 16-8-18.
Two days later, the jury sentenced her to death. Her conviction
and sentence were affirmed on appeal by the Georgia Supreme Court.
Buttrum v. State,
249 Ga. 652,
293 S.E.2d 334 (1982). Subsequently,
she filed a state petition for habeas corpus; a hearing was held
on the petition; and all relief was denied. When the Georgia
Supreme Court denied a certificate of probable cause to appeal the
denial of state habeas relief, Buttrum filed this petition in
B. Factual Background
The evidence and testimony
presented at Janice Buttrum's trial and pretrial proceedings
revealed the following facts.
Nineteen year old Demetra Faye Parker was
raped, sodomized and stabbed ninety-seven times in her motel room
at the Country Boy Inn, in Whitfield County, during the early
morning hours of September 3, 1980. Demetra had moved to Whitfield
County from Tennessee to be near her boy friend.
Janice Buttrum and her husband,
Danny, also lived at the Country Boy Inn and were acquaintances of
Demetra Parker. Demetra occasionally drove them to the store and
laundromat since the Buttrums had no car. Danny was twenty-eight
and Janice, seventeen. The two married when Janice was fifteen,
and their nineteen-month-old daughter lived with them at the
motel. Danny Buttrum had recently escaped from a Cobb County,
Georgia, prison work camp. On the night of the murder he had drank
three six packs of beer. Danny had a violent background, and in
the Buttrum's two-year marriage, he beat Janice numerous times.
The Night of the Murder
The night before the pre-dawn murder, Demetra
Parker was in her motel room watching television with two male
friends. The three saw Danny pacing back and forth 15 to 20 times
in front of Demetra's room. Demetra told her friends she was
afraid of him, and they locked the door. She drove her friends
home at approximately 8:30 p.m.
Christopher Busby also lived at the motel in
August and September, and on the evening of September 2, he and
Danny had a beer together. At 7:00 to 7:30 p.m., Busby, the
Buttrums, and their baby left the motel to buy beer. This brief
beer run turned into a five hour excursion that included a number
of stops. Busby testified at trial that while they were riding in
his car, Danny told him he wanted to pick up a girl. Busby asked
him if his wife, who was in the back seat, wouldn't mind, and
Danny replied, "No, as long as she gets to go with her first."
During several stops, Danny made passes at four
different women, while Janice remained in the back seat of Busby's
car. Several female witnesses testified they were approached by
Danny that night but refused his drunken advances. Busby and the
Buttrums returned to the motel room at about midnight. Danny then
borrowed Busby's car, and the Buttrums were gone for about three
more hours, returning at 3:45 a.m., September 3. Pam Henry, a
motel resident, testified that at approximately 4:00 a.m. she
heard a girl screaming.
Accounts of the Murder
Agent Johnson of the Georgia
Bureau of Investigation testified about the investigation of the
case and the arrests of the Buttrums. Over defense objection he
related one of Janice's post-arrest confessions. According to
Johnson, Janice Buttrum stated that at about 4:00 a.m., she and
her husband went to Demetra's room to scare her. She knocked on
the door, and when Demetra opened the door and then attempted to
close it, Danny pushed it open, and
they went inside and
struggled with the girl. Janice then stabbed the girl and they
fell to the floor. Janice and Danny were on opposite sides of the
girl, and they took turns stabbing her. Janice said she stabbed
her about fifteen minutes [sic], gave the knife back to Danny; he
stabbed her, and gave the knife back to her. Janice lifted
Demetra's nightgown to see where her heart was, and then cut
Demetra across the stomach because "it was the only place left to
cut," and because Demetra was still living and she thought that
might kill her. The Buttrum's daughter was in the room playing
with the telephone. Janice said she had no remorse about the
killing. The Buttrums went back to their motel room, took
Demetra's car and fled.
Agent McFaul of the F.B.I., one of the
arresting officers, testified about the contents of a statement
Janice made to him shortly after her arrest. The additional
details revealed by this statement were the following: When the
Buttrums entered Demetra's room, Danny threw Demetra down. Danny
had a pocket knife in his hand and was struggling with Demetra.
Janice took the knife and stabbed Demetra. Both stabbed her
numerous times, and while Janice was stabbing her, Danny was
masturbating. Afterwards, they washed their hands with a cloth in
Demetra's room and stole her car. Janice also told Agent McFaul,
"That girl sure didn't want to die."
Janice made two other statements about the
incident. One was during her incarceration. She wrote a letter to
be given to the Sheriff in which she claimed she killed Ms. Parker
as an act of jealousy because Danny was trying to have sex with
her. She took complete responsibility for the crime. She said she
forced Danny to do everything he did, including raping Ms. Parker.
Finally, at her sentencing hearing, Janice
testified that it had been Danny's idea to go to Ms. Parker's room
the evening of the crime; that she waited outside the room for
five minutes after Danny entered; that when she entered, Danny was
removing Ms. Parker's panties and she believed they "were fixing
to have sex." After becoming angry at the sight of Danny and Ms.
Parker engaging in sex, Ms. Buttrum testified that she grabbed the
knife and stabbed Ms. Parker in the chest. She admitted that her
conduct was wrong and that she deserved to be punished. She denied
having oral sex with the victim.
Dr. James Metcalfe, Associate Pathologist at
Hamilton Memorial Hospital performed the autopsy on Demetra Parker
at 11:00 p.m. on September 3, 1980. Demetra was 5'8 1/2" and
weighed approximately 100 lbs. She incurred sixty-seven stab
wounds to her left chest with a maximum depth of 2". The blade
penetrated several ribs and her left lung. Metcalfe observed 24
stab wounds and cuts in the front neck area with several cuts to
the windpipe. Spinal stab wounds were 2" deep and cut into the
backbone. A gaping gash had been inflicted to Demetra's lower
abdomen exposing her bowels. Demetra suffered a 4" cut in the
genital area, as well as damage to the vagina and rectum from
forcible penetration. Hemorrhages and bruise marks were observed
on Demetra's scalp, nose, knees and genital region. Finally, there
was a 1 to 1 1/2" bite mark on her neck. A plastic toothbrush
holder had been forced into her vagina.
Metcalfe stated the vast majority of injuries
around the vagina and anus occurred while Demetra was alive.
Demetra died only after the attack or towards the very end of the
prolonged assault. The stab wounds to the chest and neck finally
resulted in her death.
The Flight and Arrest
At approximately 5:00 a.m. on September 3, the
Buttrums and their child drove to the truck stop where Mr. Buttrum
worked. Petitioner borrowed $ 20.00 from the truck stop manager,
stating, "I don't know if you know what's going on or not, but if
anyone asks you, you have not seen us."
Chambracant Patel, manager of
the motel, reported Ms. Parker's death and told the police that
her car was missing. He told them that Ms. Parker had spent time
the previous day
with the Buttrums, and that the Buttrums appeared to have
checked-out of their room. A search of the Buttrum's room revealed
a bar of soap and washcloth covered with blood. Armed with this
information, the police secured arrest warrants for Danny and
Further investigation revealed that the couple
had contacted Danny Buttrum's mother and requested that she wire
money to Pensacola, Florida. Before noon on September 4, F.B.I.
agents spotted and arrested the Buttrums in Pensacola and charged
them with the murder of Demetra Parker.
Later that day, Janice Buttrum was interrogated
by agents of the F.B.I. and gave the statement to Agent McFaul
noted above. She turned over the ring and a barrette taken from
the victim. On September 6, in the custody of Georgia law
enforcement officials, the Buttrums were returned to Whitfield
County. Shortly after her arrival, Janice was interrogated again
and provided the statement recounted by Agent Johnson above.
On September 10, 1980, counsel was appointed to
represent Ms. Buttrum. After two weeks, counsel filed a motion to
withdraw, expressing doubt about his ability to discharge
faithfully his responsibilities. The motion was denied, and the
trial court appointed co-counsel. On October 2, the court
acknowledged sweeping media interest in the case and issued a gag
order. The order was subsequently lifted when the court found that
the order created more publicity than it deterred.
Counsel moved the court for
funds to hire a psychiatrist, an investigator, and a forensic
criminologist. The court denied the motion, but agreed to have
state psychologists examine Ms. Buttrum to determine her sanity
and competency to stand trial. In February 1981 a jury found her
competent to stand trial. Trial was postponed, however, until late
summer to await the birth of her second child.
In March, 1981, Danny Buttrum was tried. The
news media comprehensively reported the evidence introduced at the
trial, including Danny Buttrum's confession. The media reported
that Ms. Buttrum had participated in the stabbing and murder of
the victim and had committed oral sodomy on the victim. After
deliberating less than an hour, the jury convicted Danny Buttrum
of all counts charged. The following day, after deliberating less
than 40 minutes, the jury sentenced him to death.
Ten days before the commencement of Janice
Buttrum's trial, the prosecutor served notice that it intended to
call a private psychologist, Dr. Henry Adams, in the penalty phase
of the trial to testify that Ms. Buttrum was a sexual sadist who
would continue to be dangerous in the future. Defense counsel
vigorously, but unsuccessfully, renewed their motion for funds for
a private psychologist.
After a hearing on a defense motion for change
of venue based on prejudicial, pretrial publicity, the trial court
permitted sequestered voir dire of the prospective jurors. After
voir dire, the court denied the motion for a new venue.
The Trial and Sentencing
The defense offered no evidence at trial.
Through cross-examination and argument it contended that Janice
participated in the murder but acted under the domination of her
husband. The jury found Janice guilty as charged.
At the penalty phase of the
trial, the prosecution called one witness, Dr. Henry Adams, who
testified that Janice Buttrum was a sexual sadist who could be
expected to repeat similar acts in the future. In response, the
defense presented no psychological testimony but presented
testimony about Janice Buttrum's background in mitigation of
Janice Buttrum's Personal History
Evidence from former teachers, social workers,
and others revealed the following. Janice Buttrum's unmarried
mother gave her to a middle-aged, foster couple, the Adcocks, in
exchange for payment of the hospital bill. She grew up in a
unpainted house with no bathroom. Later the Adcocks lived in a
one-bedroom trailer, and Janice's bedroom was a broken-down van in
the yard. The trailer was filthy, the floor covered with dirt,
paper, beer bottles, and moldy food. Janice's clothing was
obtained at the city dump, and she was subjected to physical and
emotional abuse. One social worker testified that during the many
times he went to her home he never saw her step-mother sober.
After Mr. Adcock died Ms. Adcock's boyfriend lived in the trailer.
At school Janice Buttrum's peers ridiculed and
ostracized her because she was dirty and smelled horrible. Her
hair was matted, her face and nails always dirty, her clothes too
big, and she usually went barefoot even in winter. One teacher
stated: "She never carried on a conversation with anybody; she
just always stood over to herself." Other children laughed and
made fun of her. She was the most neglected child several teachers
and social workers had ever seen. Nevertheless, she was not a
discipline problem; she was described as shy, passive, very quite,
extremely non-violent, very withdrawn, with a low self-image, a
follower, and having a passive personality.
During her early teen years, Ms.
Buttrum ran away from home. She was befriended by an older man
who, along with another man, sexually assaulted her. At age 14,
she was declared a deprived child and was placed in the custody of
Bartow County. She was shuttled between foster homes, returned to
Mrs. Adcock and finally placed, at Mrs. Adcock's instigation, in a
Youth Detention Center. While she had committed no crime, the
state simply had no other place for her to live. She remained
there for six months.
At age 15, she returned to Mrs. Adcock's home.
Shortly thereafter, a friend of her mother's introduced her to
Danny Buttrum. Danny was 26 years old, divorced, and the father of
two children. On the first evening of their meeting, Ms. Buttrum
agreed to marry him. They were married within a month.
The jury heard evidence that Ms. Buttrum was
often the victim of beatings sustained at the hand of Danny
Buttrum. When Danny was sober, he was non-violent. When he drank,
he became abusive, beating her 15-20 times during their two-year
marriage. On several occasions, Janice swore out warrants against
The defense introduced other evidence showing
that Danny Buttrum had several prior convictions, that he had a
reputation for being uncontrollable after drinking; that he was
the boss in the relationship, and that on the night of September
2, the eve of the crime, he was drinking heavily and had a "mean"
The jury found that the murder had been
committed in the course of a rape, that it was outrageous, vile
and inhuman; and that it involved torture, depravity of mind, and
an aggravated assault to the victim. On the murder count, the jury
sentenced Ms. Buttrum to death.
II. CONSTITUTIONAL CHALLENGES: THE
A. The Denial of
Buttrum's Motion for Change of Venue Because of Pretrial Prejudice
and the Failure To Excuse Certain Jurors for Cause.
Janice Buttrum contends that
prejudicial and inflammatory pretrial publicity so pervaded and
saturated Whitfield County at the time of her trial that it was
impossible to empanel an impartial jury. She contends the trial
court violated her constitutional rights when it denied her
pre-trial motion for a change of venue. The principles that govern
this change of venue issue derive from the fourteenth amendment's
due process clause, "which safeguards a defendant's Sixth
Amendment right to be tried by 'a panel of impartial, "indifferent
jurors."'" See Coleman v. Kemp, 778
F.2d 1487, 1489 (11th Cir. 1985), cert. denied, 476 U.S.
1164, 90 L. Ed. 2d 730, 106 S. Ct. 2289 (1986), quoting
Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751,
81 S. Ct. 1639 (1961); see also
Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663,
83 S. Ct. 1417 (1963). Where pretrial
publicity has so inflamed and saturated a community
that it is impossible to draw an impartial
jury from that community, due process requires that the trial
court grant a motion of the defendant for a change of venue for
trial or a continuance of the trial. See Coleman, 778 F.2d at
1489; citing Rideau, 373 U.S. at 726; Murphy v. Florida,
421 U.S. 794, 799, 44 L. Ed. 2d 589,
95 S. Ct. 2031 (1975). A defendant
tried and convicted by a jury prejudiced against him, is denied a
fundamentally fair trial. At a minimum, due process requires a
unbiased decision maker.
There are at least two different standards for
judging the effects of prejudicial pretrial publicity. One
standard is that used in cases such as Irvin and Jordan v.
Lippman, 763 F.2d 1265 (11th Cir. 1985). There, prejudice
is shown when the pretrial publicity has created a significant
possibility of prejudice and the trial court has failed to conduct
an adequate voir dire to unearth and eliminate the prejudice from
the jury. See Jordan, 763 F.2d at 1274-79.
Prejudice may be presumed, however, where a
petitioner proffers evidence of inflammatory, prejudicial pretrial
publicity that has so pervaded or saturated the community, that
jury prejudice may presumed. In such a case, there is no further
duty on the petitioner to establish bias. See Coleman, 778 F.2d at
1490, quoting Mayola v. Alabama, 623 F.2d 992, 997 (5th
Cir. 1980), cert. denied, 451 U.S. 913, 68 L. Ed. 2d 303,
101 S. Ct. 1986 (1981). Cases of presumed prejudice are
rare. See Coleman, 778 F.2d at 1490 (and cases cited therein).
In Rideau, the defendant's confession to a bank
robbery, kidnapping, and murder was videotaped and subsequently
broadcast three times by a local television station. The three
broadcasts were seen respectively by 24,000, 53,000, and 29,000 in
a community that had a population of 150,000. See id., 373 U.S. at
724. The Supreme Court held that the denial of the defendant's
motion for change of venue constituted a denial of due process.
Although the Court noted that three of the venire persons had seen
the broadcast, the Court stated that prejudice was to be presumed,
"without pausing to examine a particularized transcript of the
voir dire examination of the members of the jury." Id., 373 U.S.
In Coleman, four defendants were charged with a
brutal execution-like murder of six members of a family. Seminole
County, the venue of trial was a community of approximately 7,000.
The extensive, prejudicial, and inflammatory pretrial publicity in
the case was reviewed by the court in 45 pages of the Federal
Reporter. See id. at 1491-1536. The publicity tracked the
defendants from their arrest through trial, including the
reporting of the detailed testimony of one of the defendants who
had turned state's evidence. The publicity was reflective of a
community roused with hostility and largely convinced that death
was the only appropriate remedy. Id. at 1538-40. The court found
the pretrial publicity equal to Rideau, presumed the existence of
prejudice, and held that the grant of habeas relief was warranted.
The court there in dicta noted that it assumed that in an
appropriate case the presumption of prejudice might be rebutted by
the respondent, through a showing that the voir dire was adequate
to eliminate any actual prejudice from the jury. The court,
however, found no occasion to resolve that issue because the voir
dire in that case was inadequate and did not rebut the presumption
In this case, the pretrial publicity so
pervaded and saturated Whitfield County that prejudice must be
presumed under Coleman and Rideau. Nevertheless, the Court finds
the presumption of prejudice rebutted by an examination of the
voir dire. The voir dire shows that the jury actually empaneled
was not so infected by the publicity that the jurors could not lay
aside any preconceived opinions about the case and render a
verdict solely upon the evidence. Habeas corpus relief on this
issue therefore must be denied.
1. The Pretrial Publicity.
Following the approach of the Eleventh Circuit
in Coleman, this Court shall review the
pretrial publicity in some detail. Several demographic facts were
brought out in the pre-trial proceedings which are relevant to the
inquiry. The trial court found at a pre-trial hearing on the
issuance of a "gag order" that the population of Whitfield County
at the time of the trial was between 60,000 and 70,000. This
population is roughly a median between the population of Seminole
County, at issue in Coleman, and of Calcasieu Parish, at issue in
Rideau. Further, at a pre-trial hearing on Buttrum's motion for
change of venue, Dr. Lawrence E. Noble, a professor of political
science and expert in media analysis summarized the media coverage
in Whitfield County:
Newspaper circulation in Whitfield County
where there are 20,000 registered voters, is approximately
17,500 daily. Newspaper readership approximates two readers per
newspaper. This would mean that there is an average daily
readership in Whitfield County of over 30,000. One other
newspaper, a weekly now out of business, the Valley Observer,
had a circulation unknown to me. There are some 20,000 TV
households in the county, and local radio audiences are
approximately 10,000 or more.
The Discovery of the Crime and the Buttrums'
Within hours of the discovery of Ms. Parker's
body on September 3, 1980, local and regional media began coverage
of the case that did not subside until after Janice Buttrum's
trial. Almost every one of the hundreds of media reports about the
case in the year from the arrests through Ms. Buttrum's trial
highlighted the sensational facts that the victim was 19, that her
body was found almost nude, that her body had been mutilated,
stabbed almost 100 times, that she had been sexually molested,
raped, and tortured before death. Most also informed the readers
that the suspects were a young married couple.
The Dalton daily newspaper, the Daily
Citizen-News, began the publicity with a front page story on
September 4, "Girl, 19 Murdered; 2 Suspects Jailed." It
After viewing the repeatedly stabbed nude
body of a 19-year-old woman at Country Boy Motor Inn, Sheriff
Jack Davis said Wednesday it was the most brutal murder he had
investigated in Whitfield County.
The story reported that the coroner, as well,
could not recall a more brutal murder. A report of the Chattanooga
Times the same day dubbed the crime a "sex-torture-slaying case."
"Police said the woman had apparently been tortured before her
death. Officers also found a four-inch to five inch slash across
her stomach. The stab wounds, according to [detective] Gribble,
covered the stomach, chest, breast and neck of the victim." It
reported that the room was in disarray with blood over large areas
of the walls and floor.
On September 4, radio station WBLJ reported
that Ms. Parker's "nude and butchered body" had been discovered in
a pool of blood, and that Ms. Parker had been stabbed 95-100 times
and was sexually tortured. Also on that day, radio and television
stations reported that "an escapee from the Cobb County Georgia
work camp and his wife" had been arrested in the "multiple
stabbing." They reported that Sheriff Davis had stated that the
Buttrums and the victim were acquaintances, that the couple was
driving the victim's car when arrested, and that the motive was
believed to have been "sex-related." WBLJ radio reported that
Janice Buttrum had helped Danny escape from state custody.
The Daily Citizen-News reported on September 5
that "toys and clothing belonging to a child were among the
hastily abandoned items left in an apartment reportedly occupied
by the Buttrums, just a few doors down from where the murder
occurred." The Chattanooga News-Free
Press and the Chattanooga
Times reiterated the same details of the crime.
The media described the victim as a wonderful,
young, bright, wholesome, all American girl, who had come to
Dalton to live near her boyfriend. On September 9, the Daily
Citizen-News along with a high school photo reported that Ms.
Parker was from a small Tennessee farm town, had been in a beauty
contest, was "very naive and trusting," had sung in the Baptist
Church choir, and had plans of attending college.
She befriended a young couple with a baby
while staying at the Country Boy Motor Inn . . ., offering to
drive them places since they didn't seem to have transportation,
Anderson said. They were later charged with her murder.
The article described the
devastation felt by Ms. Parker's friends, family, and the
Choked with emotion as he spoke of "my baby
sister," Anderson said hundreds of people crowded in to view two
funeral ceremonies in the neighboring communities . . . to pay
final respects to the girl.
On September 9 the Chattanooga Times reported
about the "incensed residents" of Dalton and that Danny Buttrum
had been attacked by other inmates at the jail and placed in
isolation. District Attorney Williams said his phone had been
ringing off the hook about the case and that he would fight a
change of venue motion in order to keep the trial in Whitfield
County. The Daily Citizen-News also reported the attack on Danny
On September 12, the Daily Citizen-News
reported that the District Attorney had decided to seek the death
penalty. The same day a Chattanooga Times was headlined "Dalton
Prosecutor Wants 2 to Die." The article reported that the DA said
the case, "absolutely called for the [death penalty]." Radio and
television also reported the DA's decision. On September 16, 1980,
the Daily Citizen-News headline read, "Buttrum Gouges Wrists,"
reporting that Danny "cut his wrists with a 'gouge-type'
In early October, the setting of the
preliminary hearing gave opportunity to the Daily Citizen-News and
the Chattanooga Times to recount again the facts of the crime. On
October 2, because of the amount of pretrial publicity being
generated, the trial court issued a gag order, closed the
preliminary hearing, and proscribed law enforcement officials from
talking about the case.
WBJL first reported that an earlier report that
the Buttrums had sued the Sheriff's Department for $ 500,000 for
leaking information to the press was erroneous and that the
Buttrums sought only a closure order. The broadcast reminded the
listeners of the facts of the crime:
29 year old Danny Buttrum and his 17 year old
wife Janice are accused in the September 3rd sexually related
slaying of 19 year old Demetra Faye Parker of Dyersburg,
Tennessee. Ms. Parker's nude body was found in her room at
Country Boy Inn at Carbondale. An autopsy revealed she had been
stabbed 95 to 100 times, then sexually assaulted and tortured.
The Buttrums were arrested the next day in downtown Pensacola,
Florida. He was allegedly arrested while sitting in the victim's
car. She was at a nearby sandwich shop.
The Chattanooga Times reported similar facts
about the closed preliminary hearing and added that both Janice
and Danny were being held in isolation for their protection from
other prisoners. The Chattanooga News-Free Press reported a
similar story about the hearing.
On October 9, the Daily Citizen-News published
a front page article denying allegations that the Whitfield County
Sheriff's Department had prior notice of Danny Buttrum's presence
in the county nine days before the crime.
The Motion to Continue the Presentment.
Because of the amount of pretrial publicity,
the defense sought a continuance of the presentment before the
Grand Jury to provide for a "cooling off period" on the grounds
that no impartial panel could be seated. The Daily Citizen-News
article about the motion brought by the "defense lawyers who
succeeded in obtaining a gag order preventing lawmen from talking
about the murder."
The trial court heard the motion on October 10.
The defense called media witnesses and proffered media stories and
broadcasts about the case. An attorney form Dalton testified:
Q. Have you heard, or come into contact with
individuals who have made statements to you concerning the
alleged homicide of Demetra Parker?
A. Yes, I've come in contact with a number of
people - surprising to me. I have not seen . . . this before
since I've been here, the apparent coverage that this incident
has received and the public interest . . .
I haven't run into anybody that did not
appear to have reached a conclusion. I have run into responses
ranging from: "Why give these people a trial?" to "They should
be lynched." And numerous -- in the conversations, numerous
admissions by people that they felt that this case had received
such coverage that it would be very difficult to find an
See Transcript of October 10, 1980 hearing at
32-33. He also believed there was an inflammatory atmosphere about
A. Yes, . . . because . . . the remarks that
I have heard from good people, . . . ranging from: "How in the
world can an attorney defend these people" . . . from the Editor
of our local paper, . . . and then the remarks that I've heard
when I go to buy gasoline, . . . "There's just no sense in going
through a trial on this case", . . . "These people are just . .
. guilty, and why are we wasting our time and the Court's time?"
Id. at 35-36. He felt that community sentiment
against the Buttrums was "gaining in intensity." Id. at 36. Deputy
Sheriff Jerry Shoemaker testified as to why special security
measures were needed:
Because of the ill feelings that the people
of this county have toward the Buttrums. People have came [sic]
up to me and asked if there was any way possible, you know, just
to rush in the jail and get to 'em, you know, "when you going to
take 'em to Court", and all that good stuff, you know, things
like snipers, or something of that nature.
Id. at 40. He testified he was aware of 12 to
15 threats against the Buttrums lives. "But, . . . people come up
to you usually everywhere you go, since you wear the uniform,
people want to know about the Buttrums, you know, they already
have their mind made up that they're guilty." Id. at 43.
The Court nevertheless denied the motion to
continue the presentment to the Grand Jury to allow a cooling off
A few days later, the Daily Citizen-News
reported that the Grand Jury had indicted Danny and Janice Buttrum
for the murder and recounted the details of the crime. The Valley
Observer published a back front-page story headlined "Portrait of
the Accused." The article cast Janice Buttrum as being the
dominant personality of the couple and as being uncaring about her
They sit lonely in the courtroom these two.
Surrounded by a table full of attorneys, they remain lonely.
There is no family there to support them. They have only each
other. Who could blame even a mother for not being there.
As their fate is argued, as motions are
presented and technicalities discussed, they seem to be
elsewhere, most of the time. Whispering between themselves,
giggling even. They seem to be unaware of the seriousness of
Guilty or innocent, they stand accused of one
of the most heinous crimes in the history of Whitfield County --
the brutal, [sic] torture, sexual abuse and murder of a young
She does the talking. He nods or frowns in
response. She carries the conversation. He listens. She runs her
mouth. He looks away. She dominates. He sits quietly. She
scolds. He lowers his eyes. She instructs. He demures.
She is a big one. Even with the baggy
institutional overalls rolls of fat bulge. Her brown hair is
unkept. Scraggly even. Her face is
plain. Colorless. Her bottom lip is somewhat larger than the
other. Her eyes are small, close together. Emotionless, until
she laughs at her own joke.
. . . .
Seemingly, they are both oblivious of the
court proceeding. Never asking question of their attorneys. . .
. A whirlwind storms around them and they display outward
Is it they do not understand that the State
is trying to take their lives? Or do they care? could it be
their lives have been so miserable they secretly wish for death?
Or are they just stupid?
. . . .
Is that the fear in his eyes? The fear not of
death or dying, but the fear that he will not die.
The fear that the Book is right. You can cry
out for death and it will not come. The fear of Eternal
The fear of the Abyss.
On October 16, the court held a hearing on
whether to lift the gag order. The court indicated it believed
that there was little about the case not already known and that
the gag order motions had "done more to create publicity that they
have not." Respondent's Exhibit 13 at 33. The next day the Daily
Citizen-News and the Chattanooga Times reported on the hearing and
reviewed the details of the crime.
The Court lifted the gag order on October 17
and released for public inspection most of the preliminary hearing
transcript, with the defendant's post-arrest statements omitted.
The Daily Citizen-News, the Chattanooga Times, and the electronic
media all announced the judge's decision. A few days later, the
Daily Citizen-News recounted on October 21 some of the evidence:
Screams of the dying 19-year-old Demetra
Parker were heard by guests at the Country Boy Motel where her
beaten and repeatedly stabbed body was discovered . . . .
Questioning of motel guests secured witnesses
who indicated Miss Parker screamed during a savage knife attack
which left over 90 wounds, testimony in a preliminary hearing
The FBI took a statement from the Buttrums .
. . after their arrest . . . . Copies of the statements have
never been made public and defense lawyers say they will
continue to resist efforts to open hearings to the news media
before a trial date is set.
The Chattanooga Times October 21
story about the preliminary hearing revealed several additional
facts. It noted that the post-arrest statements of the Buttrums
were deleted from the transcript "apparently in anticipation of
defense motions to keep information on confessions by the couple
from the jury." It also revealed the following:
[Detective] Gribble said he interviewed Leon
Busby, who had gone for a ride with the couple the day before
the slaying. When Buttrum was questioned about his wife's
reaction to statements that he was looking for a woman with whom
to spend that evening, the man reportedly made a statement
indicating that his wife was bisexual, according to the
Radio station WBLJ aired a lengthy newscast on
October 21 summarizing the evidence at the preliminary hearing,
including that the Buttrums made statements to the authorities
during their first days in custody, that the day before the murder
they had been seen trying to pick up two to three girls, that
Busby had been told by Danny Buttrum that his wife would not mind
because she was bisexual, and that the Buttrums became suspects
because a search of their room suggested that they had checked out
while having paid rent for 3 or 4 more days.
From November through January 1981, the
Buttrums were in Milledgeville, Georgia, undergoing psychiatric
evaluation. The media continued to report on the case. At least
six stories, by the Daily Citizen-News, the Chattanooga Times, the
Chattanooga News-Free Press, and the Valley
Observer printed articles on the coming
competency hearing and repeated the details of the crime. The
Valley Observer published a long article entitled "Portrait of the
Accused: Crime Was 3 Months Ago, But Suffering Still Lingers."
It hurts Euell Anderson to even look at his
mother. To see the blank stare on her face. It hurts almost as
much as what happened to his "baby sister," but not quite. What
happened to her still heaps spiritual coals on the soul of
Anderson. The pain gnaws at his heart and has destroyed his
mother's ability to function.
Euell Anderson is the brother of Demetra
The article described Anderson's trip to
Georgia "ten hours behind the killers and . . . heavily armed; how
he traveled to Pensacola and drove his sister's car home; and how
he had visited with a Ouija board in the motel room where his
sister died. It further described the impact on the family:
The fear of being alone is not the only
problem the family faces.
"Through it all my mother was strong,"
Anderson said. "She amazed us all. It was incredible. She was
the one worried about everybody else. She tried to pull us up
and hold us together emotionally.
"She made it almost all the way through. At
the casket, she lost it. She broke down. She lost it and I don't
think she will ever get it back again. She just sits there and
stares. I don't think that she will ever be capable again.
When she was young her father was killed in a
brutal axe slaying," Anderson said. "A year ago, she lost two
brothers in automobile accidents within six months of each
other. And now this. It destroyed her."
"Sometimes I wish that they had come up to
Tennessee and stuck a knife in my mother," he said. "Sometimes,
I think it would have been easier on her than what she is going
Anderson also spoke in grief about his sister,
"My mother raised Demetra right.
* * * *
"She had Demetra scared of sex. I believe
Demetra was a virgin."
Inside Detective sold over 100 copies in Dalton
of an issue with a feature story on the case. The story titled
"The Girl Next Door - Knifed Ninety Times," presented a gruesome
account of the discovery of the body, the crime scene and the
arrest of the Buttrums: "The sheriff winced at the sight on the
floor and called it the most brutal murder he had ever seen in
Whitfield County." Coroner Helton knelt at the body, looked up and
said, "stab wounds . . . God knows how many." The story detailed
the arrest of the Buttrums and stated that each "allegedly
confessed to the murder."
The Competency Trials.
In early February, the Chattanooga Times
reported on the competency hearing of Janice Buttrum. An article
of February 6 reported on Janice Buttrum's early life. "Teachers
and social workers described Mrs. Buttrum's life from the time she
was born and given by her mother to another woman for rearing
until she left Bartow County, Ga., as the wife of Danny Buttrum,
with whom she is charged with the brutal, sexual torture-murder of
Demetra Faye Parker."
Other social workers and teachers described
how Mrs. Buttrum as a young child came to live with her foster
mother and the foster mother's friend in a one-bedroom
travel-trailer that was, during the social workers' visits,
littered with garbage, dirt and beer bottles.
The article noted that the only witness who
testified that she was incompetent, was a social worker who told
the jury she was "'a very disturbed child' who had already
retreated 'into her own little world.'"
The Daily Citizen-News in a front-page story
reported February 6 that Buttrum had been found competent to stand
trial. It noted she was then expectant and that defense witnesses
traced her early childhood,
testifying that she once went to bed with two
27-year-old men when but 14 years of
age because of being starved for affection.
The Chattanooga Times and the Chattanooga
News-Free Press reported on the result of the hearing on February
7, the Chattanooga Times reminding the readers that "the Buttrums
. . . are accused of stabbing Miss Parker 95-100 times, that
shortly before the murder Danny Buttrum had escaped from jail, and
that the two were staying at the motel where Miss Parker's body
was discovered at the time of the murder.
On February 11, the Chattanooga Times
summarized the evidence at Danny Buttrum's competency trial:
Three years before he was charged with the
brutal sexual-torture-murder of a 19-year-old West Tennessee
woman, Danny Buttrum checked into a regional psychiatric
facility in Rome, Ga., and told officials he was preoccupied
with sex and was afraid he would rape someone, according to
testimony at Buttrum's competency hearing Tuesday.
Evelyn Buttrum, the defendant's mother,
testified Tuesday that her son was an alcohol abuser and
suffered from "spells" during which he became violent and
She acknowledged to District Attorney Steve
Williams that Buttrum had even attacked her with a butcher knife
Jessie Collette, a former counselor at the
regional mental health center, interviewed Buttrum when he was
voluntarily checked into the hospital and said the defendant
told him he had a preoccupation with sex and an urge to rape.
Buttrum also reported homicidal feelings toward his mother.
The Daily Citizen-News published a similar
story. WTVC Channel 9 reported that the jury took less than one
hour to find Buttrum competent and reminded the viewers that the
victim had been "raped . . . and then stabbed almost a hundred
times." WBLJ radio also reported the verdict and reported on the
evidence suggesting that Buttrum "kept having ideas about raping
someone." On February 13, the Daily Citizen-News and the
Chattanooga Times published additional stories on the hearings.
Within a week, the local media informed
Whitfield County of the next developments in the case. A Daily
Citizen-News story of February 24 reported that the court had held
a hearing on a motion for change of venue. See Respondent's
Exhibit 17. At the hearing, the court permitted the defense to
question three of its witnesses who had recently been called for
jury service. The first witness revealed that she held opinions
that Danny and Janice Buttrum had stabbed Ms. Parker, that she
could not recall a crime which received more publicity in
Whitfield County, and that her opinions were firmly held. Two
other witnesses expressed similar views. The court refused to
allow the defense to call any other of the 43 subpoenaed
witnesses. The parties then entered into a stipulation:
The balance of the 43 . . . subpoenaed
witnesses will have an opinion that Danny and Janice Buttrum
were guilty, or at least involved in the killing of Demetra Faye
Parker, and certain facts that have been brought out in the
newspaper, television, and radio, but that probably they can set
aside if they were called as Jurors in the case."
Respondent's Exhibit 17 at 72-73.
Articles on the hearing followed. The
Chattanooga Times on February 25 summarized the hearing and noted:
The murder of Miss Parker has become
Whitfield County's most infamous crime in recent years. The
former Beauty pageant contestant had moved from near Dyersburg,
Tenn., to work in Dalton-area carpet mills several months before
her semi-nude body was found in a motel room she had rented.
An autopsy showed that Miss Parker had been
stabbed 95-100 times and had been sexually molested, police
On February 25 the Daily Citizen-News published
an article on the denial of the motion to quash the indictment
reported that $
28,000 had already been spent on the defense.
Danny Buttrum's trial was set
for March 9, and the court held final motions hearings on March 5
and 6. Evidence was presented at a hearing on a motion for change
of venue. Tom Manton, a law student, testified by affidavit. He
stated he had heard it said that (1) "part of the uterus of
Demetra Parker was found in [her car] after the killing," (2)
"Janice Buttrum ate part of the uterus of the victim," (3) "chunks
and strips of the victim's body were missing and may have been
eaten by the Buttrums," and (4) "a hot curling iron was inserted
into the victim's vagina." See Defendant's Exhibit 9 to March 6
Lawrence E. Noble, Jr., a professor of
political science and expert in media content analysis, also
testified at the hearing for the defense. Respondent's Exhibit 23,
Defendant's Exhibit 8 to March 6 Hearing. He testified that he
reviewed a large amount of the pretrial publicity and was familiar
with the Chattanooga media area from work on other cases.
According to Dr. Noble, the Whitfield County media audience
receives radio material from four local stations, television
material from Dalton, Chattanooga, and Atlanta stations, and
newspaper material from Dalton, Chattanooga and the Atlanta
newspapers. In the 27 news days covered by the media information
provided to him, "prospective jurors in Whitfield County would
have been exposed to some 650 television station newscasts, and
some 550 radio newscasts, . . . and some 162 newspaper stories
about the case for reading by the prospective jurors." He noted
that the community received at least two special media events -
the "seven minute piece on the case done by Channel 5 in Atlanta"
and "a detective magazine story about the case which circulated in
the county." Id.
He concluded that because of the nature of the
crime and the extent and character of the publicity, the case
should be tried in a venue "not contaminated by a combination of
media from Atlanta, Chattanooga, and Dalton." He found the media
content very heavy and extensive for a sustained period in the
county, which caused the facts of the case to become saturated
into the residents of the county. He explained that over a period
of time, coverage becomes cumulative because as new events are
reported, the background events are repeated again and again. "The
content of the coverage is in effect drilled into the knowledge of
the prospective jurors." Id. at 2. He found that several factors
of the case lent the case to emotional and inflammatory reporting:
The heinous nature of the crime . . . by its
very nature resulted in sensational, emotional and inflammatory
reporting. In addition, the fact that the victim was an
attractive, All-American young woman produced an emotional focus
on the victim. Other sensational aspects of the case included
the interstate hunt for the defendants, the fact that they had
their baby with them during the incident, the jail attack of one
defendant, the apparent attempted suicide of one defendant, the
gag order . . . the insanity defense and the competency issue.
Id. at 3. Noble thought that these factors
would have an especially marked impact on a community like
The bizarre circumstance of married
defendants, one allegedly bisexual, sexually molesting a young
woman described as beautiful, naive, and trusting is highly
inflammatory in a jurisdiction of the traditional nature as
Whitfield County. In such a homogeneous community the shared
basic values of persons who are prospective jurors would
naturally be outraged by such an extraordinary event. The
tendency to get the culprits would be particularly strong.
Results of jury research which show that some forty percent of
the citizenry feel that indictment is presumptive evidence of
guilt would no doubt apply in a higher percentage in such a
venue with such a relatively homogenous population.
Id. The language used by the media would have
increased the strength of the opinions developed by its consumers:
Terms used in the media describing the crime
include: brutal; sexual torture;
some one hundred wounds; mutilated; sex
murder. These emotive figures were repeated over and over.
In this case, the media consumer in the
county, a high percentage of which are prospective jurors, were
showered with inflammatory material that had a high likelihood
of causing opinions to be formed about the guilt of the
Id. Finally, Noble found that "jurors often are
not aware of the degree to which their opinions about guilt have
been influenced by the media, and further that prospective jurors
responding to the authority figure of the judge are not apt to
reveal their full feelings about their pretrial exposure . . . ."
Id. at 4. He concluded that "prospective jurors in a jurisdiction
so thoroughly contaminated with pretrial publicity have too heavy
a burden to bear to meet the demands of impartiality." Id.
Maureen McLaughlin, a jury consultant,
concurred in the conclusions of Dr. Noble. Id., Defendant's
Exhibit 9 to March 6 Hearing. She testified that jurors are not
aware of how much preconceived opinions about a case affect their
judgment. Based upon the extensive amount of pretrial publicity in
the Buttrums' case, she concluded, it would be very difficult for
jurors to put aside their preconceived views. Id. at 56.
The court ruled that it would allow sequestered
voir dire on the publicity issue but made no final ruling on the
motion for change of venue.
On March 6, the Daily Citizen-News reported
that Danny Buttrum's trial was scheduled for the following Monday,
March 9. The article reviewed the latest events and recounted many
of the details about the crime. On the eve of trial, the
Chattanooga News-Free Press published a long story, summarizing
many of the events of the preceding seven months and reviewing the
details about the crime.
The Trial of Danny Buttrum.
The publicity most prejudicial to Janice
Buttrum's trial was that covering her husband's trial. The media
reported Danny Buttrum's confessions which in great detail told
how the pair committed the crime and often cast Janice as the more
perverse of the pair.
The first account was from the Daily
Citizen-News on March 9: "Testimony is not expected to begin until
Tuesday in the trial of the rape and murder of the Tennessee
teenager as an expert opposing the death penalty is helping the
defense." It noted that television stations from Atlanta and
Chattanooga were covering the jury selection and included a sketch
artist representing Channel 2 in Atlanta.
The Atlanta Constitution on March 10 published
a long article that depicted a small community deeply upset about
the death, "Girl's Slaying Stirs Anger, Shock In N. Georgia Town."
Today didn't come soon enough for some
residents of this carpet mill town that sits in the shadow of
"If this thing had happened 40 years ago,
folks would have gone and got them out of the jail and made sure
justice was done quick," explained the grizzled cashier of a
self-service gas station. "And I'd have been with them. . . ."
"The tragedy that led to this day has had
tongues wagging and tempers "hot hereabouts for half a year now."
In addition to profiling Demetra Parker as a
shy, modest, pretty teen-ager, who sang in the choir, the story
also recounted the crime, the arrest, the prior record of Danny
Buttrum, his escape from the work camp, and that it had become
evident that "Janice Buttrum -- who could face execution if
convicted - was pregnant." It outlined the prosecution's theory of
the case, including that the Buttrums "wrestled [the victim] to
the floor, [and] stabbed her. She was repeatedly raped while still
alive and bleeding. Then the Buttrums took her car and drove to
Florida." All of the media followed the voir dire carefully, and
at its conclusion noted that the court denied the motion for
change of venue.
The Daily Citizen-News reported on March 11,
"Danny Buttrum today admitted to stabbing Demetra Parker numerous
times in her motel room and having sex
with her as [the court]
ruled his confession could be admitted into evidence." It reported
the contents of the confession:
Buttrum said "this person went to the Parker
and asked for a cigarette," FBI Agent Fred McFall testified,
noting that a baby was carried into the room after they forced
their way past the 19-year-old victim.
Buttrum maintained that he was told while
being questioned by FBI agents that his wife was "spilling her
guts" about the murder and their statements were inconsistent.
Agent McFall said Buttrum indicated he
entered the room, his baby was placed on the floor of the
victim's motel room, and he took turns stabbing the teenager
while having sex with her.
He said, "the other person" had oral sex
after removing Miss Parker's underclothing.
"I went to the bathroom to wash off the
blood," he was quoted as saying in the sworn statement. "I stuck
a hard object up her vagina," he said in the confession.
WDEF TV-12 and WTVC also reported on the
confession. WBLJ radio aired a long newscast summarizing in detail
the testimony on March 11. It noted that Danny Buttrum confessed
that "Janice went to Parker's room around 4:00 am Sept 3rd, to ask
for a cigarette. She had her 19 month old child with her. When
Parker opened the door - Danny forced his way in knocking Parker
to the ground."
Janice then allegedly got a pocket knife and
repeatedly stabbed Parker in the chest. Then in turn Danny
allegedly did the same. Janice then told him that she would like
to perform sexual activities with Miss Parker - allegedly
according to the testimony - she did. Danny is then said to have
raped her and went to the bathroom to wash the blood from his
body. When he returned Janice was repeatedly stabbing Demetra
Parker over & over. Danny then did the same and then forced a
ridged yellow object into her feminine parts.
Testimony given by Dr. Metcalf revealed 67
stab wounds to the chest area, 24 to the neck, 3 in the side of
the neck, long gash in her lower abdomen, stabs in the stomach,
one long cut on the groin.
With the trial in full swing, every media gave
detailed accounts of the preceding day's events. The Daily
Citizen-News on March 12 recounted the previous day's testimony in
an article titled, "3 Approached Before Parker." The story
detailed the findings of the pathologist, describing the wounds,
and noting that Danny Buttrum had attempted to pick up other women
earlier that evening.
The agent said Buttrum confessed that his
19-year-old wife produced a pocket knife and began the stabbing
before removing the victim's clothing and talking of having oral
sex with the girl.
. . . .
[District Attorney] Williams indicated that
the accused murderer tried to get two other girls to date him
[earlier that evening] and was asked if his wife was jealous.
Buttrum responded that Janice Buttrum
wouldn't mind if she could have her own sexual pleasures first
with the women, Williams told jurors his case would prove.
The story also reported in detail the findings
of the pathologist, including his removing the seven-inch long
plastic toothbrush holder from the dead girl's body, which
Williams terms "a parting savage gesture of her killers." It
further noted that "the pretty Kenton, Tenn., teen-ager was still
alive as numerous knife thrusts and slashes were made by
intruders." The pathologist was reported having concluded that Ms.
Parker was conscious through most of the attack.
The Chattanooga News-Free Press also published
an article on March 12 headlined "FBI Agent Says Buttrum Confessed
Murder." It detailed the findings of the pathologist, noting the
depth of the wounds, the finding of teeth wounds on her neck, a
"gaping hole" across her abdomen, that the doctor was of the
opinion that the
young woman died either after or at the
very end of the stabbing, and that she was alive when she was
raped and sodomized. WTVC TV-9 in Chattanooga and WQTM radio also
aired reports about the confession.
On this day, the prosecution and the defense
completed their cases, and the jury began deliberations. Coverage
was comprehensive. The Daily Citizen-News ran another front page
story headlined, "Former Cellmate Tells of Confession." The
article reported the testimony of two women who had been
approached earlier by Danny Buttrum the night of the crime. It
recounted a confession made to a cellmate, Hugh Don Smith:
Smith said Buttrum had blurted out details of
the brutal murder in a call [sic] they shared and indicated he
became jealous because Janice was bisexual and spent time at a
laundry with the victim.
Demetra Parker allegedly kicked and screamed
but Buttrum put his hands over her mouth and held her down while
his wife stabbed the victim, Smith said the accused killer told
He said they repeatedly stabbed the helpless
girl because they feared she was still alive, Smith quoted
Smith said the Buttrums allowed their
18-month-old baby to watch the events inside the room while
concentrating on the victim, Buttrum was quoted as telling him.
The story also described the loss felt by
Demetra Parker's family and boyfriend.
The Atlanta Journal published a story, "Inmate
Says Man Admitted Slaying Teen," which quoted Smith extensively.
The Chattanooga News-Free Press similarly reported Smith's
testimony: "Buttrum Cellmate Tells of Bizarre Murder." The
additional details of this article revealed that Buttrum "'made
his wife go' to Miss Parker's room and knock on the door under the
pretext of borrowing a cigarette." "Smith said Buttrum told him
that 'he [had] told her (his wife) to take a knife out of his
pocket,' and when she did she stabbed Miss Parker in the chest."
The two argued about who would sexually abuse
the victim first, according to Smith. He said that Buttrum began
sexual intercourse with her while his wife "was propped up on
her elbow beside them."
Smith said Buttrum told him Buttrum and his
wife then had oral sex with the woman.
"He stated that he got up to go into the
bathroom to wash the blood off him. While he was in there, he
said he heard his wife molesting and stabbing her.
Before the pair left the room, Smith said
Buttrum told him he had sodomized the victim and they had slit
her throat "because his wife said 'I don't think she's dead
Id. The Chattanooga Times reported an equally
graphic account, adding that at the end of the affair, "'he said
his wife said "I don't believe she is dead yet." . . . and slit
her throat.'" It reported Smith testifying, "'I . . . asked Mr.
Buttrum about his child,' Smith said. 'He said, "Oh, our child was
there watching us. We had our child with us."'" Id.
WQMT radio reported the day's events, and noted
that defense counsel admitted Buttrum had killed Demetra Parker,
but that the killing was spontaneous. It reported the District
Attorney asked the jury to find Danny Buttrum guilty "not only to
avenge the death of Ms. Parker but to do so out of fairness for
her parents who were present in the courtroom." That night, WDEF
TV-12 informed viewers that the jury had reached a guilty verdict
in just fifteen minutes.
On March 14, under a banner headline, "Buttrum
Found Guilty," the Daily Citizen-News published two stories, one
summarizing the trial to date and looking toward the sentencing
phase, and the other about the family of Ms. Parker: "Next Step
For Jury Is to Decide Price Buttrum Must Pay," and "Family
Remembers Demetra." In recounting the day's events, it noted that
District Attorney Steve Williams thundered in
reply that Buttrum was like a shark
feeding in a tank and acting with a sexual frenzy when he helped
stab Demetra Parker 97 times and raped her.
The story pointed out that Williams asked the
jury to consider the pain of Ms. Parker's family during its
Ray Parker, the girl's father, bowed his head
and wept as Williams pointed to him in the courtroom and noted
that murder had taken a daughter that couldn't be replaced.
The article on the family recounted with pathos
the grief and loss the father, the mother, and the family.
The Atlanta Journal published a story on March
14 summarizing the trial, headlined "Buttrum Found Guilty of
Murder and Rape."
In the six months since the nude and bloody
body of Miss Parker was found in her $ 50-a-week room at the
Country Boy Inn, the slaying has been a frequent topic of
conversation in this north Georgia carpet-mill town. The
courtroom was crowded each day of the trial as farmers in bib
overalls, secretaries in high heels, teen-aged girls in jogging
suits and an assortment of other spectators listened to the
It noted that the "Buttrums confessed to the
crime shortly after they were captured in Demetra Parker's car."
It reported that Ms. Parker's father "hung his head and wiped
tears from his ruddy cheeks" as the District Attorney told the
jury that "this man will never again know the love of his
daughter," and that while several members of the Parker family
attended trial, the victim's mother "just couldn't bring herself
to come over."
The Chattanooga Times and the Chattanooga
News-Free Press published similar articles on March 14. On its
6:00 news program, WTVC TV-9 from Chattanooga reported on the
progress of the sentencing trial. Near the conclusion of its
newscast, a late bulletin was broadcast:
Late word just in from Dalton . . . the
defense team has introduced a letter written by Danny' wife
Janice . . . in which she admits she forced Danny to take part
in the crimes.
According to the letter, read to jurors . . .
jealousy was the motive. And she . . . quote . . . loves him too
much to let him die.
Late that night WQMT radio reported that the
jury deliberated only 35 minutes before returning a death
sentence. It also reported that defense lawyers had introduced a
letter from "Danny's wife Janice, saying she was responsible for
In its March 15 story, the Chattanooga
News-Free Press reported on the events of the previous day in an
article headlined "Mrs. Buttrum Letter Denies Spouse's Guilt." The
article recounted the contents of the letter "absolving her
husband of all responsibility in the . . . slaying." It quoted
Janice in the letter, "I killed Demetra Parker as an act of
jealousy. I was afraid he (Danny) was having sex with her . . .
she was prettier than I was . . . . I made Danny do everything . .
. my husband is guiltless." WTVC TV-9 summarized the trial in a
final report on the jury's decision. "Jurors went along with
prosecutor Steve Williams . . . who argued for the death penalty
saying depraved is a weak word for how the defendant acted. . .
What does society need with a pervert coward like Danny Buttrum?"
He argued that Janice "admitted she forced Danny to take part
[and] told jurors Danny was a ticking time bomb . . . which his
wife knew how to detonate." Other electronic media also broadcast
reviews of the week-long trial.
On March 16, the print media published their
concluding stories on the trial. The Daily Citizen-News published
a front page story announcing the verdict, "Buttrum Receives Death
Penalty." The story gave extensive coverage to the letter of Ms.
Buttrum. "She claimed 'unwarranted jealously' . . . prompted her
to use her influence to get her husband to rape and kill the
helpless teenager . . . ." The article also identified each juror
who sat on the case.
The Chattanooga News-Free Press published a
story, headlined "Automatic Appeal Likely To Delay Buttrum Death."
It informed readers
that the execution date would be postponed due to mandatory
appeals. The report revisited the evidence at trial, including
that "Buttrum had signed a confession and had admitted he and his
19-year-old wife had killed the young woman." It quoted the
district attorney's comments about the verdict:
"I'm very proud of it. I think the people of
Whitfield County were as outraged as I was. It was a horrible
The Chattanooga Times story also reviewed the
major points of the trial in a March 16 story, "Buttrum Gets Death
April - July 1981.
With the conclusion of Danny Buttrum's trial
and Janice over six months pregnant, proceedings against Ms.
Buttrum were suspended to await the birth of her second child. The
media continued to report on each development during the interim.
In May, the Daily Citizen-News reported on
Danny Buttrum's hearing on his motion for a new trial, "Judge
Denied Request for New Buttrum Trial." The article reviewed the
grounds for the new trial, including the failure to grant a change
of venue, and reminded readers that Janice Buttrum's trial was set
for August. It also reported that "the last death sentence
returned in Whitfield County was in 1965 when Freddie Roach was
convicted of abduction and rape at knife point of a 24-year-old
One week later, the Daily Citizen-News reported
that Danny Buttrum again attempted to win a new trial, claiming
that not he but only Janice had stabbed the victim.
Buttrum said he shouldn't be facing a death
sentence because it was his wife and not him who actually
stabbed a 19-year-old West Tennessee girl, Demetra Parker, to
Janice Buttrum, the convicted Adairsville
man's expectant wife, is still awaiting delivery of a baby
before facing a murder trial this summer.
A few weeks later, on June 5, Whitfield County
residents learned that Ms. Buttrum had given birth to a baby girl:
Daily Citizen-News, "Police Guard Buttrum;" Atlanta Constitution,
"Woman Facing Murder Trial Has Baby." On July 2, the district
attorney announced that a trial date of August 24 had been set.
WBLJ radio reminded listeners that Janice's husband had already
been convicted and sentenced to death.
On July 22, the Daily Citizen-News published a
story informing readers of the 200 citizens called for jury
service for the final week in August, "200 Persons for Jury;
Buttrum Case Scheduled." The story reminded readers that Janice
Buttrum's husband had been convicted and sentenced to death for
his role in the case.
With Ms. Buttrum's trial only a few weeks away,
defense counsel filed another round of motions. One sought to
recuse Judge Pannell, another to quash the magistrate fee system.
In a front page story, the Daily Citizen-News reported on both
motions, "Buttrum Attorneys Ask Judge Removal." The article
characterized the crime as a "torture-murder," a "brutal stabbing
murder," and the victim's body as "battered." The Chattanooga
Times also covered the filing of the motions, "New Judge Sought
For Buttrum Trial." WBLJ aired a similar story on August 12.
On August 13, the media again reported on the
pending motions: Daily Citizen-News, "Motions Hearing Today;"
Atlanta Journal, "Judge Asked To Quit Slay Case". On August 14,
under a banner headline, "Pannell Won't Step Aside," the Daily
Citizen-News reported that the judge would not recuse himself and
described Ms. Buttrum's appearance at the hearing.
On August 20, the Daily Citizen-News published
another front-page story on several pending motions, "Defense
Motions Denied." The story, as did other similar articles,
reported about the status of Ms. Buttrum's children. The following
day, the Chattanooga News-Free Press published a similar story,
titled, "Mrs. Buttrum's Trial Set for Monday In Whitfield."
2. Analysis of the Pretrial Publicity.
In examining a claim that
prejudicial, pretrial publicity so inflamed and saturated the
community that prejudice of the jury should be presumed, the Court
must examine the totality of the circumstances surrounding the
petitioner's trial. Coleman, 778 F.2d at 1538 (citation omitted).
No single factor is dispositive, and the Court must weigh each
element of the pretrial publicity, taking into consideration its
pervasiveness, and how it contributed to the totality of the
circumstances. Id. Although Whitfield County residents were likely
exposed to several sources of publicity, including newspaper,
radio, television, and word-of-mouth, "no one person would have
read, for example, all of the newspapers summarized in this
opinion," and the overwhelming cumulative weight must therefore be
discounted for this fact. Id.
Whitfield County residents were exposed to
extensive prejudicial publicity for an entire year prior to Janice
Buttrum's trial. Long before trial, the media reported that the
Buttrums were apprehended the day after the murder in Pensacola
with the victim's car. They had lived a few doors from the victim
in the motel and had checked out several days early. Danny Buttrum
was a recent escapee from a work camp, and Janice had helped him
escape. The couple had confessed to the FBI after their arrests.
Inmates attacked Danny in the jail, and he attempted suicide.
Busby reported that when the Buttrums went looking the night
before the murder to pick up girls, Danny said Janice wouldn't
mind if she could enjoy the girl first. In one article, Janice was
portrayed as the dominant personality of the pair based upon their
interactions in the courtroom. The competency hearings revealed
that Janice was raised in wretched, filthy conditions, and had
slept with two men at the same time when she was only 14. Years
before, Danny Buttrum had admitted he was preoccupied with sex,
had strong urges to rape, had homicidal feelings toward his
mother, and had attacked her with scissors and a butcher knife.
The publicity most prejudicial,
as in Coleman, was Janice's accomplice's confession. Danny's
confession graphically described the horrible details of the rape
and murder by the pair. The couple took turns stabbing the victim.
Janice had oral sex upon the victim after she had been stabbed
repeatedly. The baby was present in the room. The testimony of
Hugh Don Smith reconfirmed this account. Finally, there was
Janice's letter, in which she took full responsibility for the
crime and absolved her husband of any wrongdoing. Accounts of
Danny's trial were disseminated through all of the media
throughout Whitfield County. This publicity alone presented "an
overwhelming showing in the press of [Janice Buttrum's] guilt
before [her] trial ever began." See Coleman, 778 F.2d at 1538.
Media accounts also often focussed on
All-American qualities of the victim, the suffering and loss of
the family, including the prior tragedies of the victim's mother.
Further, there were the erroneous rumors in the
community that Janice Buttrum had eaten part of the victim's
uterus, that chunks and strips of flesh were missing from the body
and were presumed to have been eaten by the Buttrums, and that a
hot curling iron was inserted into the victim's vagina. While not
published in the media, these rumors reveal the sensational and
macabre view much of the community held of the case.
In addition, in this case, there was direct
testimony about the community feeling in the case. Members of the
community were quoted by lawyers and a deputy sheriff as stating
that a trial was a waste of time. An expert in media analysis and
a jury consultant testified that no impartial jury could be seated
on the case in Whitfield County. This testimony went
uncontroverted: The prosecution offered no evidence to rebut this
evidence of community of prejudice.
The picture that emerges is that of a community
saturated with prejudicial and inflammatory publicity and
predisposed as to the Buttrums' guilt. Under such circumstances,
it would be unlikely to think that Janice Buttrum "received an
assessment of [her] guilt or innocence on the basis of the
evidence, and the detached weighing of aggravating and mitigating
circumstances which the Georgia death penalty system
contemplates." Id. at 1539.
The showing made by Petitioner Buttrum is equal
to that made in Coleman and Rideau. Whitfield County was larger
than Seminole County (the venue in Coleman), but is was much
smaller than Calcasieu Parish (the venue in Rideau). And similar
to Rideau and Coleman, here, the media disseminated essentially
verbatim a confession about the crime, that of the petitioner's
own husband. As in Coleman, many of the widely publicized facts
were inadmissible at Janice Buttrum's trial and sentencing, such
as the personal qualities of the victim and the effects of the
murder on the victim's family. In consideration of the totality of
the circumstances, the Court concludes that the "petitioner has
adduced evidence of inflammatory and prejudicial pretrial
publicity that so pervaded the community as to render virtually
impossible a fair trial before an impartial jury." Coleman, 778
F.2d at 1540. The Eleventh Circuit has held that "'where a
petitioner adduces [such] evidence . . . [jury] prejudice is
presumed and there is no further duty to establish bias. '"
Coleman, 778 F.2d at 1490, quoting Mayola v. Alabama, 623
F.2d 992, 997 (5th Cir. 1980).
3. Rebuttal of the Presumption of Prejudice.
There remains the question of whether the
presumption of prejudice can be rebutted. While the Court has
found no binding authority that such a presumption can be
rebutted, there is dicta in Coleman and in Mayola to that effect.
Assuming there could be such rebuttal, the court in Coleman
examined the voir dire and found the presumption not rebutted.
Coleman, 778 F.2d at 1541-43 & n. 25. The court however expressly
declined to decide whether there could be rebuttal in an
appropriate case. Id. at 1541 n. 25.
This Court concludes that the respondent should
have the opportunity to rebut the presumption of prejudice, for if
it can be shown that despite the saturation of the community with
inflammatory publicity, the trial court succeeded in seating an
impartial jury, there is no reason for upsetting the verdict. The
burden nevertheless will be heavy. In Mayola, in dicta the court
Although the state's burden would be very
difficult to carry, it would not be insurmountable. Of course,
it could not be satisfied merely by the juror's assurances on
voir dire of their own impartiality. [citation omitted.] On the
other hand, a showing that none of twelve jurors impanelled had
ever been exposed, first or second hand, to the inflammatory
publicity, would probably suffice to negate the presumption of
prejudice flowing from that publicity.
Id. at 1001.
The burden is heavy because of the difficulty
in determining prejudice by asking the jurors themselves whether
they can lay aside their preconceived opinions. In Irvin, the
Court found prejudice despite the fact that every juror questioned
positively stated that he or she could render an impartial
verdict. See id., 366 U.S. at 720, 724. "[A] 'juror is poorly
placed to make a determination of his own impartiality. Instead
the trial court should make this determination.'" Jordan v.
Lippman, 763 F.2d 1265, 1274 (11th Cir. 1985) (citation
Since Mayola, however, the burden has been
lightened somewhat. The Supreme Court in Patton v. Yount held that
the trial court's determination of the impartiality of a juror is
a finding of fact entitled to the presumption of correctness of 28
U.S.C. ? 2254(d). Id., 467 U.S. 1025, 1036-37,
104 S. Ct. 2885, 81 L. Ed. 2d 847
In this case, the presumption of prejudice is
rebutted by the voir dire. The voir dire, while not perfect, was
adequate to unearth the prejudice of the venire persons, and the
errors made by the court were not so serious as to vitiate the
presumption of correctness accorded the trial court's findings.
Perhaps the most important factor that distinguishes this case
from Coleman and Irvin, is that, here, individual jurors were
questioned in sequestration. This was appropriate
and made more likely the jurors' candor.
See Irvin, 366 U.S. at 728; Patton v. Yount, 467 U.S. at 1036;
Coleman, 778 F.2d at 1542.
A review of the voir dire of the jurors who sat
on Buttrum's case supports the trial court's finding that, while
all of the jurors had some knowledge about the case, and several
had formed beliefs or opinions about certain aspects of the case,
the empaneled jurors were able to lay aside any preconceived
opinions and render their decision based solely upon the evidence
adduced at trial. In Irvin, the Court explained as follows:
It is not required . . . that the jurors be
totally ignorant of the facts and issues involved. In these days
of swift, widespread and diverse methods of communication, an
important case can be expected to arouse the interest of the
public in the vicinity and scarcely any of those best qualified
as jurors will not have formed some impression or opinion as to
the merits of the case. This is particularly true in criminal
cases. To hold that the mere existence of any preconceived
notion as to the guilt or innocence or an accused, without more,
is sufficient to rebut the presumption of a prospective juror's
impartiality would be to establish an impossible standard. It is
sufficient if a juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in court.
Irvin, 366 U.S. at 722-23 (citations omitted).
In this case, every juror who sat on the case
stated unequivocally that he or she could lay aside any
preconceived opinions and decide the case based solely on the
evidence presented. While not dispositive of the issue, the
unequivocal answers lend support to the respondent's position. See
Yount, 467 U.S. at 1039.
All of the jurors had been exposed to the
publicity to some degree, but the amount of exposure varied
widely. The jurors' testimony reveals little or no passion or
inflamed feelings about the case. A year had passed since the
crime was first reported and five months since Danny Buttrum's
trial. Cf., Yount, 467 U.S. at 1032-35. Moreover, of the seven
jurors with the greatest exposure, four expressed skepticism about
what is reported in the media."
Only one juror, Juror Ten, stated that she had
an opinion that Janice Buttrum was guilty. Her testimony far
exceeds any of the other jurors in approaching entrenched bias. If
examining her testimony in the first instance, this Court would
have excused her for cause. Nevertheless, her
testimony does not show
opinions so entrenched as to overcome the presumption of
correctness that must be accorded the trial court's finding. See
28 U.S.C. ? 2254(d)(1)-(8).
Because her testimony is by far the most
questionable, it is reviewed herein in detail. Juror Ten stated
she read the paper almost every day and had read most of the
articles about the case, "because I think everybody would have
read it because it was front page news." She read about "when they
sentenced [Danny Buttrum]," but nothing about his trial. She had
the opinion that Demetra Parker had been stabbed, did not know
whether she was raped, and had the opinion that she was tortured.
She had talked about the case only to her family and did not know
if she had expressed any opinions to them. She had the opinion
that Janice Buttrum was involved in the matter but did not know
whether she was guilty "until [she] heard the evidence."
Q. Do you feel like that you would have any
trouble laying [what you've read and absorbed] aside and going
into the Courtroom and making a decision based solely on that
A. I think I could do that, yes.
Q. Do you feel like that you would have any
problem doing that?
* * * *
Q. Do you believe that you could clearly
distinguish in your mind, put in one pot over here the things
that you've read, and make a separate distinction as to things
that you heard?
A. Uh-huh, yeah, I understand. Yes, I could.
Q. Because of this opinion that you presently
hold now, do you have any leanings toward who you think should
prevail, or win in this case?
A. No, I do not.
She stated she had no opinion about what the
sentence should be "until [she heard] the evidence." But she said
yes to whether she had told anybody what she thought ought to
happen in the case:
Q. And can you recall what you might have
A. You mean, whether or not I think she's
guilty, or -
Q. Right, that's part of it?
* * * *
A. At the present time, without any evidence,
I fell like she is.
* * * *
The Court: Ms. Hughes, is there any doubt in
your mind that you could listen to the evidence, regardless of
any thing you may have read or heard or have an impression
about, an not let anything . . . you previously read and heard
sway you in any way?
A. Yes, I could.
The Court: All right, is there any doubt in
your mind of your ability to do that?
A. No, none whatever.
The Court: Have you got any desire right now
for either side to win, over the other side?
A. Well, I said I'd formed an opinion, so I
guess I do have.
The Court: Well, the way I understood your
answer, Mr. Fain asked you the question: What do you think now?
Now, the way I understood your answer was: Based upon what you'd
read so far, you believe her to be guilty. But, now, do you --
as you sit here now, have you already made a decision about the
The Court: Well, do you . . . have an
opinion, or are you just saying what you think about what you've
heard so far?
A. I don't understand what you mean.
The Court: I know, . . . it gets all tangled
up in all these questions. Do you feel like you've got a firm
fixed opinion right now as to what ought to happen in this case?
A. Yes, I believe I have.
The Court: Did you have that before you came
A. Uh-huh. Court has changed it some.
The Court: How is that?
Well, I can understand there's two sides to it.
The Court: Well, do you think going through
this voir dire process has reinforced the opinion you had, or
lessened the opinion you have?
A. I guess it would lessen the opinion I
The Court: Do you think they'd have to
overcome that opinion?
A. No, I don't think so.
The Court: Do you think you can put all that
out of your mind and start fresh?
The Court: Is there any doubt that you could
A. No, none whatsoever.
The Court: Could you base any decision that
you might have to make solely upon the evidence you'd hear in
Court and arrive at a verdict based on that evidence, as applied
to the Law as Charged by the Court?
A. Yes, I could.
The Court: You think you could do that
regardless of anything you may have read or heard, and not let
anything you've previously read or heard sway you?
The Court: Is there any doubt in your mind as
to that ability?
A. No sir, no doubt.
The Court: I find the juror qualified.
Respondent's Exhibit 2 at 843-53.
While this Court views with some skepticism her
attestations of her capability to lay aside her opinions, in cases
of ambiguity, the Court must defer to the finding of the state
court. See Yount, 467 U.S. at 1040. That finding was not without
adequate factual support in the record, 28 U.S.C. ? 2254(d) (8),
or flawed for any of the other reasons set forth in ? 2254(d)(1) -
Petitioner contends that the voir dire was
inadequate for two basic reasons. First, the trial court
restricted defense counsel from asking open-ended questions about
what the jurors had read or heard. This limitation forced the voir
dire to be conducted through leading questions only. This was
error. There is no reason why counsel should not be allowed to
inquire with open-ended questions into what the jurors had heard.
The Jordan Court explained:
The court should [determine] what in
particular each juror [has] heard or read and how it affected
his attitude toward the trial, and . . . [determine] for itself
whether any juror's impartiality had been destroyed.
Jordan, 763 F.2d at 1274
(citation omitted). The court there held that the absence of a
probing voir dire that focussed upon what each juror had been
exposed to an how the exposure would affect their impartiality
denied Jordan his right to an impartial jury. Id. at 1281; see
also Coleman, 778 F.2d at 1543 & n. 26 (criticizing "conclusory"
voir dire questions).
Nevertheless, while not permitting open-ended
questions, the trial court in this case did not limit the range or
scope of the leading questions, and a review of the entire
1222-page transcript of the voir dire, shows that counsel was
permitted to inquire as to whether jurors had heard reports or
held opinions essentially about any fact of the case. Thus, while
it was error to limit the voir dire to leading questions, the
error did not prevent the defense from examining in detail the
jurors' exposure to the media and their opinions.
Second, Buttrum contends that the court began
each individual session with an improper instruction. Initially,
defense counsel was prevented from asking the jurors whether based
upon what they had read or heard, they had formed an "opinion"
about particular aspects of the case. The court erroneously ruled
that such questions were tantamount to asking them to "prejudge"
the case. See Respondent's Exhibit 2 at 151-61. The court decided
to give the following instruction:
Let me explain something to you right here.
When the attorneys or I ask you about opinions and beliefs and
stuff like that, make sure -- there's a difference between
reading something and remembering it, and reading or finding out
about something and making it your
opinion or belief. Now, make sure that distinction, as to
whether it's just something you read or heard, or whether you've
got a firm, fixed opinion.
Respondent's Exhibit 2 at 238-39. Defense
counsel objected to this admonishment on that ground that it had a
"chilling effect upon the Juror, in the sense that it perhaps
instills in their mind the impression that having an opinion is
incorrect and improper." Id. at 321-22. Petitioner is correct that
such an instruction would tend to communicate that having a firm,
fixed opinion was incorrect or improper, as defense counsel
objected. The very purpose of the voir dire is to determine the
existence of such opinions. Nevertheless, the court soon began
adding that there were no right or wrong answers and that the
jurors should simply be candid in their answers. And before long,
the Court was permitting and even insisting that counsel use the
word "opinion" rather than "feeling" or "belief." Finally, it is
apparent that the jurors did disclose when they had an opinion or
a belief about the aspects of the case when inquired into by
In conclusion, the Court holds that while the
voir dire was not without error, it was adequate to reveal the
jurors who had entrenched opinions, and those twenty-four jurors
were excused for cause. The one juror seated who had a firm, fixed
opinion as to guilt positively affirmed she could lay it aside,
and the trial court's finding of impartiality is entitled to a
presumption of correctness. Her testimony reveals insufficient
bias to overcome that presumption. The Court concludes that the
respondent has overcome the presumption of jury prejudice. The
voir dire shows that entrenched prejudice did not infect the jury
which ultimately found Buttrum guilty and sentenced her to death.
Accordingly, the petition for the grant of
habeas corpus relief on this ground is DENIED.
B. The Charge to the Jury at Buttrum's
Prior to her trial, Buttrum requested a
court-ordered evaluation of her competency to stand trial. After
her psychological evaluation, the court empaneled a jury and held
a hearing to determine her competency. In accordance with Georgia
law, the court instructed the jury that Buttrum bore the burden to
prove incompetency. Buttrum contends that the placement of the
burden of proof on the defendant to prove incompetence by a
preponderance of evidence is unconstitutional. Buttrum's
contention is without merit.
The Georgia Supreme Court has held:
The trial on the issue of mental competency
contemplated by O.C.G.A. ? 17-7-130(a) is in the nature of a
civil proceeding and the defendant has the burden to prove
incompetency by a preponderance of the evidence.
Partridge v. State,
256 Ga. 602, 603,
351 S.E.2d 635 (Ga. 1987).
This placement of the burden upon the defendant
by the state legislature does not violate due process. Lowenfield
v. Phelps, 817 F.2d 285, 294-95 (5th Cir. 1987) (declining
to follow United States Ex. Rel. Bilyew v. Franzen, 686 F.2d
1238, 1246 (7th Cir. 1982)), aff'd on other grounds, 484
108 S. Ct. 546, 98 L. Ed. 2d 568
(1988); cf. Spencer v. Zant, 715 F.2d 1562, 1567 (11th Cir.
1983) (while not addressing a due process challenge to the
placement of burden, the court held that "Spencer wholly failed to
establish any substantial or bona fide doubt that he was competent
to stand trial."), on reh'g en banc, relief granted on other
grounds, sub nom., Spencer v. Kemp, 781 F.2d 1458 (11th
Cir. 1986) (en banc); see also Wallace v. Kemp,
581 F. Supp. 1471, 1478 (M.D.Ga.
1984) (Georgia placement of burden on defendant not
unconstitutional), rev'd on other grounds, 757 F.2d 1102
(11th Cir. 1985); contra, United States ex rel. Bilyew v. Franzen,
686 F.2d 1238, 1244-45 (7th Cir. 1982) (burden
constitutionally required on the prosecution); Brown v. Warden,
682 F.2d 348, 351-52 (2d Cir. 1982) (same), cert. denied,
459 U.S. 991, 74 L. Ed. 2d 388, 103 S. Ct. 349 (1982).
This Court adopts the reasoning of the Fifth Circuit in Lowenfield
and concludes that this issue is without
Buttrum also contends that the trial court in
its competency charge improperly characterized the issue as being
one of sanity, rather than competency to stand trial, and that it
generally confused the two issues. Taking the charge as a whole,
however, it is clear that the court adequately distinguished
between insanity at the time of the crime and competency to stand
trial. The court charged:
The issue in this case and the sole issue in
this case, is whether or not the person charged in this Court
with a criminal offense is, at the present time, suffering from
a disease of the mind and is so far insane as to be unable to
comprehend the proceedings and be incapable of conducting her
defense if she were tried for the alleged offense. You are not
concerned in this trial with guilt or innocence of any alleged
. . . .
You are here in this case for the purpose of
deciding whether or not a person charged in this Court with a
criminal offense is, at this time, mentally competent to stand
trial. The question is whether or not Janice Buttrum . . . is at
the present time, suffering from a disease of the mind and is so
far insane or mentally incapable that she is incapable of
understanding the nature and object of the proceedings against
her. . . . This proceeding is not, in any sense, a criminal
proceeding . . . . The sole question is whether or not she is
now sane and mentally competent to be tried for a criminal
offense, and the purpose of this proceeding and of your verdict
herein shall be to answer that question.
Respondent's Exhibit 8, Transcript at 625-28.
While the Court used the terms "sane" and "insane," it is apparent
that a reasonable jury would have understood that the issue to be
decided was the mental capacity of the defendant to understand the
nature of the proceedings against her and to assist in conducting
This issue accordingly is without merit.
C. Justice of the Peace Billy Broom's
Issuance Of the Arrest Warrant and Presiding Over the Preliminary
Justice of the Peace Billy Broom issued Janice
Buttrum's arrest warrant, charging her with murder, and served as
presiding judge at her preliminary hearing. Buttrum contends that
these judicial acts were unconstitutional because he was at the
time also a deputy sheriff. Second, she contends that he was
operating within an unconstitutional "fee system" then in
operation in Georgia.
Respondent contends that the instant claim
presents only a Fourth Amendment claim precluded from federal
habeas review by Stone v. Powell, 428 U.S. 465, 49 L. Ed.
96 S. Ct. 3037 (1976). While these
issues are not limited to Fourth Amendment concerns and are not
barred by Stone v. Powell, habeas relief is not warranted because
any error committed by Justice of the Peace Broom was subsequently
corrected by the grand jury.
In Vaughn v. State,
160 Ga. App. 283, 284,
287 S.E.2d 277 (1981), the Georgia
Court of Appeals overturned a conviction, finding that Justice of
the Peace Broom was
"per se" disqualified as a neutral and
detached magistrate. . . . At the time of the issuance of the
search warrant in this case, Judge Broom was ostensibly
authorized to exercise both executive functions in his capacity
as justice of the peace. This was not proper and negates any
possibility of a finding that Judge Broom was a neutral and
Id. at 284. This Court concurs in the decision
of the Georgia Court of Appeals that Justice of the Peace
Broom could not act as a neutral and
detached magistrate given his executive position as deputy
sheriff. "Whatever else neutrality and detachment might entail, it
is clear that they require severance and disengagement from
activities of law enforcement." Shadwick v. City of Tampa,
407 U.S. 345, 350, 32 L. Ed. 2d 783,
92 S. Ct. 2119 (1972)
1. The Preliminary Hearing.
The Supreme Court has held that the preliminary
hearing is a "critical stage" in the criminal process for purposes
of the right to counsel. Coleman v. Alabama, 399 U.S. 1,
9-10, 26 L. Ed. 2d 387,
90 S. Ct. 1999 (1970). It follows
that if the defendant is entitled to counsel, at a minimum he is
entitled to a an unbiased decision maker. "The accused is as
entitled at [a] preliminary hearing to an impartial decision maker
as in a guilt trial." Tucker v. City of Montgomery Bd. of Com'r.,
410 F. Supp. 494, 506 (M.D.Ala. 1976)
(Godbold, J., for three judge court) (holding unconstitutional
Alabama fee systems for magistrates). Thus, Buttrum was denied due
process at her preliminary hearing.
Buttrum contends that when a defendant is
denied an impartial adjudicator reversal is automatic, citing Rose
v. Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460,
106 S. Ct. 3101 (1986) (biased trial
judge). Petitioner cites no other authority for her position, and
the Court has located none to the effect that such error at a
preliminary hearing requires automatic reversal. Rose v. Clark and
similar cases involved unbiased decision makers at trial.
The denial of an unbiased decision maker at a
preliminary hearing is different. The function of the preliminary
commitment hearing in Georgia is to determine if probable cause
exists to authorize the keeping in custody of one accused of
committing a crime, pending determination by the grand jury that
probable cause exists for the suspect to stand trial. Blake v.
109 Ga. App. 636, 640,
137 S.E.2d 49 (Ga.Ct.App. 1964),
379 U.S. 924, 13 L. Ed. 2d 337,
85 S. Ct. 281 (1964). Subsequently,
the grand jury determines whether sufficient evidence exists to
try the defendant, and a trial by jury determines whether the
defendant has committed the crime alleged.
Given this procedure, a showing of prejudice is
required before habeas relief can be granted on a claim of a
biased adjudicator at a preliminary hearing. Otherwise a
conviction would be set aside because of a tainted preliminary
hearing even though subsequently a grand jury properly found
sufficient evidence for the defendant to stand trial. Such a
result defies common sense. It is true that the Supreme Court has
held that the possibility of appeal is an inadequate remedy for a
biased adjudicator at trial. See, e.g., Ward v. Village of
Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267,
93 S. Ct. 80 (1972) ("Petitioner is
entitled to a neutral and detached judge in the first instance.").
Nevertheless, the grand jury examines the issue of probable cause
de novo. The likelihood that it will cure any harm caused by a
disqualified preliminary hearing judge compels a showing of
prejudice before habeas relief may be granted.
In this case, Buttrum has alleged no
impropriety or other error in the grand jury's determination that
probable cause existed for her to stand trial. With no such error
being shown or found by the Court, any harm sustained by the
disqualified preliminary hearing judge was cured. This issue
therefore is without merit.
2. The Issuance of the Arrest Warrant.
The claim that Buttrum is entitled to habeas
corpus relief because of Justice of the Peace Broom's issuance of
her arrest warrant resolves similarly. First, as contended by
respondent, to the extent that the issue raises a Fourth Amendment
claim, it is barred by Stone v. Powell. To the extent that the
claim raises a Fourteenth Amendment issue, that the warrant was
issued by a disqualified Justice of the Peace, it is dissolved by
the preceding analysis. The purpose of having an arrest warrant
properly issued is to ensure the existence of probable cause for
an arrest. Subsequently, the grand jury determines, on evidence,
that probable cause exists for the
defendant to stand trial. Accordingly, as with the preliminary
hearing issue, any defect in the issuance of the warrant that
violated due process requires a showing of prejudice to warrant
the grant of habeas corpus relief. Buttrum has shown no prejudice,
and this ground for habeas relief thus fails.
D. The Brady v. Maryland Issue.
Buttrum originally contended that the
prosecution had suppressed evidence favorable to her in violation
of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215,
83 S. Ct. 1194 (1963). She contended
that the state had indicated that at least one of its witnesses
had a prior criminal conviction, and the trial court did not
require the state to disclose such information. During this habeas
action, the Court ordered these documents turned over to the
petitioner. After receipt of the documents, Buttrum admits she has
no evidence of any Brady violation. This issue accordingly is
E. The Admission of the Defendant's
Post-Arrest Inculpatory Statements.
Buttrum contends that the trial court
unconstitutionally admitted into evidence certain inculpatory
statements made after her arrest. She contends her Fifth Amendment
right to counsel was violated when incriminating statements were
made after her arrest in the absence of a knowing and intelligent
waiver of her right to counsel. Similarly, she contends her Sixth
Amendment right to counsel was violated because additional
statements were made in the absence of counsel after the
attachment of her right to counsel. Both of these contentions are
1. The Fifth Amendment Challenge.
The jurisprudence of the Fifth Amendment on the
admissibility of custodial statements requires that a waiver of
the Fifth Amendment right to counsel must be freely and
voluntarily given, and must be knowingly and intelligently made.
See, e.g., Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed.
99 S. Ct. 2560 (1979). The question
before this Court is whether, as a matter of law, Petitioner
Buttrum executed a valid waiver of her Fifth Amendment rights
prior to making her post-arrest inculpatory statement.
The respondent incorrectly urges as conclusive
the findings of the state habeas corpus court as to the voluntary
and intelligent nature of petitioner's statement. While findings
of fact made by a state court, generally, must be accorded a
presumption of correctness by a federal habeas court, the issue of
the voluntariness of a confession is a mixed question of law and
fact for which the Court must make an independent inquiry. Miller
v. Fenton, 474 U.S. 104, 112, 88 L. Ed. 2d 405,
106 S. Ct. 445 (1985); Mincey v.
Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290,
98 S. Ct. 2408 (1977); Williams v.
Johnson, 845 F.2d 906, 909 (11th Cir. 1988).
A confession is voluntary if, under the
totality of the circumstances, it is a product of free and
rational choice. Paxton v. Jarvis, 735 F.2d 1306 (11th
Cir.), cert. denied, 469 U.S. 935, 83 L. Ed. 2d 271, 105
S. Ct. 335 (1984). A confession is not voluntary if it is
extracted through use of improper influence, such as threats or
violence or is obtained by promises. Harris v. Dugger, 874 F.2d
756, 761 (11th Cir. 1989).
The petitioner, who has the burden of proof,
has failed to establish that her post arrest confession of
September 4 was given in violation of her Fifth Amendment rights.
A pretrial suppression hearing revealed the following facts: After
the murder, the petitioner and her husband took the victim's car
and drove to Pensacola, Florida. Upon learning of the Buttrum's
likely destination, the G.B.I. secured an unauthorized flight
complaint from the United States Attorney's Office in Atlanta, and
a U.S. Magistrate issued an arrest warrant for the Buttrums.
Immediately upon her arrest, Janice was advised of the murder
charges against her, Respondent's Exhibit No. 21 at 33-36, and of
her Miranda rights, Respondent's Exhibit No. 3 at 1293. Three law
enforcement officers were present at the time. Id. at 1294. The
arrest and admonishment of rights occurred at approximately
10:00 a.m. on the morning of September 4,
Buttrum was then transferred to the custody of
F.B.I. Agent Sammon for transport to F.B.I. headquarters in
Pensacola. During this trip petitioner said nothing. Id. at 1313.
On arriving at F.B.I. headquarters, Buttrum was again orally
advised of her rights, by Agent Sammon, and informed of the
charges against her. In addition, she was provided with an "Advice
of Rights Form" which she read and signed. The time was
approximately 10:55 a.m. Agent Sammon testified that neither he
nor anyone else to his knowledge promised her anything, nor did
anyone threaten her or hold out any hope or reward to her Id. at
Though petitioner insinuates that she did not
understand the content of the Advise of Rights Form, that position
is not supported by the testimony. The following colloquy occurred
between the prosecution and Agent Sammon during the suppression
Q Now did you go through the [Advice of
Rights] form with her?
A Yes sir.
Q And how did you do that?
A I asked her to read the form, and there was
some question in my mind whether she actually understood it, so
I read to her thereafter.
Q Did you ask her if she understood it?
A Yes sir, I did.
Q What was her reply?
A She said she did.
Id. at 1313-14. On cross-examination Sammon
was questioned further:
Q You had a question about whether or not she
understood it; is that correct?
A There was a question in my mind as to
whether or not she understood it.
Q Okay, was she able to read the words?
A Yes sir.
Q Okay. May I Ask: What raised the question
in your mind about her understanding it?
A Just the -- she read it too quickly, I
thought. And I asked her did she understand it, and she told me
she did. And I said, "Well, would you like me to read it to
you?" And I did.
. . . .
Q Okay. Did she have any questions about it
A No sir.
Id. at 1323-24.
An additional officer, Sergeant Knowles, was
present and witnessed Petitioner Buttrum sign the "Miranda Form."
After signing the form, Buttrum was questioned during this initial
interrogation petitioner said she knew nothing about the murder.
She stated that she and her husband had travelled to Pensacola in
a car belonging to a friend of her husband's. Id. at 1316. After
approximately one hour of questioning by Agent Sammon and Sgt.
Knowles, an additional agent entered the room and joined in the
questioning at around 11:50 a.m. Id. at 1297. At this time she
made inculpatory statements, admitting her participation in the
murder. Sammon testified that he wrote out the petitioner's
statement and went over it with her before she signed it. Id. at
1319. Moreover, he testified that before writing a sentence, that
he would ask Ms. Buttrum if what he was about to write was
correct. If she responded affirmatively he committed it to paper.
Id. at 1328.
This Court finds no evidence to conclude that
the trial court erred in admitting the September 4 statement. All
the evidence indicates that Buttrum made an intelligent and
knowing waiver of her Fifth Amendment right to counsel before
giving the incriminating statements. Accordingly, this issue is
concluded to be without merit.
2. The Sixth Amendment Challenge.
Petitioner also asserts that the Sixth and
Fourteenth Amendments required the suppression of inculpatory
statements of September 5, 1980. On that date as well, Buttrum
implicated herself in the murder, and her statement was introduced
into evidence. Petitioner contends that
when this statement was made, the state
had committed itself to prosecute her for murder, her right to
counsel accordingly had attached, and interrogation in the absence
of counsel was thus improper.
It is well settled that "absent a valid waiver,
the defendant has the right to the presence of an attorney during
any interrogations occurring after the first formal charging
proceeding, the point at which the Sixth Amendment right to
counsel initially attaches." Moran v. Burbine, 475 U.S. 412,
425, 89 L. Ed. 2d 410,
106 S. Ct. 1135 (1986); United States
v. Gouveia, 467 U.S. 180, 187, 81 L. Ed. 2d 146,
104 S. Ct. 2292 (1984). The Sixth
Amendment right to counsel attaches only at or after the
initiation of adversary judicial proceedings against the
defendant. Gouveia, 467 U.S. at 187; Estelle v. Smith, 451 U.S.
454, 469-70, 68 L. Ed. 2d 359,
101 S. Ct. 1866 (1981); Kirby v.
Illinois, 406 U.S. 682, 688-89, 32 L. Ed. 2d 411,
92 S. Ct. 1877 (1972); Powell v.
Alabama, 287 U.S. 45, 77 L. Ed. 158,
53 S. Ct. 55 (1932). A waiver of the
right must be knowing and intelligent, and the accused must be
"sufficiently aware of his right to counsel" and "of the
consequence of a decision to forgo the aid of counsel." Patterson
v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 272,
108 S. Ct. 2389 (1988).
Petitioner strenuously contends that her Sixth
Amendment right to counsel attached upon her appearance before the
federal magistrate on September 4, 1980, in Florida. As a result,
she maintains, the September 5 statement was inadmissible at trial
because it was made without the attendance of an attorney for the
accused. Assuming arguendo that her right to counsel had attached
at the hearing before the magistrate, her Sixth Amendment argument
still must fail.
The Supreme Court in Patterson, held that where
the defendant is admonished with Miranda warnings after the right
to counsel attaches, and then voluntarily makes inculpatory
statements, the statements need not be suppressed. Id. at 272 The
proper execution of a valid waiver of those rights serves as a
voluntary, knowing, and intelligent waiver of the right to
counsel. Id. "The fact that petitioner's Sixth Amendment right
came into existence . . . does not distinguish [her] from the
preindictment interrogatee whose right to counsel is in existence
and available for his exercise while he is questioned." Id. at
271. Thus, Patterson defeats Buttrum's argument that after the
right attaches, any subsequent incriminatory statements made in
the absence of counsel must be suppressed. A valid waiver makes
such statements admissible.
Did Buttrum execute a valid waiver of her right
to counsel before she gave her statements of September 5, 1980? On
that date, Whitfield County officers travelled to Pensacola,
Florida, to transport the petitioner and her husband back to
Whitfield County. The officers took her in custody at 8:45 a.m. on
September 5, 1980. Before beginning the trip back to Georgia she
was advised of her Miranda rights by Agent Johnson of the G.B.I.
Respondent's Exhibit No. 3 at 1336.
On arriving in Whitfield County, she was taken
to the county jail for interrogation. Id. at 1339. Prior to
questioning, Agent Johnson again informed her of her rights. He
also produced a "Waiver of Rights" form, read it to her, and asked
her to read it herself. Id. She replied that she knew her rights
and then signed the form. Id. There is no evidence that Agent
Johnson or anyone else made any threats or promises, or held out
the hope of reward to induce her to sign the form. After signing
the waiver form, she voluntarily admitted her role in the murder
and that she felt no remorse about the death of Ms. Parker.
All the evidence indicates that Buttrum was
fully aware of her rights prior to signing the waiver form. The
waiver form indicated that she had a right to counsel and the
right to refuse to answer questions or make statements without
first consulting an attorney. She stated she fully understood her
rights. No evidence suggests that her
confession was anything other than voluntary.
Accordingly, her confessions were properly
admitted into evidence, and this ground of her habeas petition is
F. The Admission at Trial of Extra-Judicial
Statements of Danny Buttrum.
During the guilt phase of the trial, a
prosecution witness, Leon Busby, who was an acquaintance of the
Buttrums', was permitted to repeat a statement made by Danny
Buttrum the evening of the crime while Busby and both Danny and
Janice Buttrum were riding in his car:
A. [Danny] asked if I knew where I could get
him a girl at.
Q. What did you reply?
A. I said, "Won't your wife get mad at you
for talking like that?" "No, as long as she gets to go with her
Transcript at 1544. The trial court overruled
the defendant's objection and denied the defendant's motion for a
mistrial. The prosecution later used this testimony to argue to
the jury that Janice Buttrum was not a mindless follower of her
husband but planned to have sex with the victim.
Petitioner Buttrum contends this testimony was
inadmissible hearsay, was "highly prejudicial," and violated her
right to confrontation under the Sixth Amendment because it was
not shown to be trustworthy and it precluded her right to
cross-examine the declarant. In support she cites Ohio v. Roberts,
448 U.S. 56, 65 L. Ed. 2d 597,
100 S. Ct. 2531 (1980). In Roberts,
an out-of-court declarant's statement was held admissible because
it met strict standards of reliability and trustworthiness because
it had been subject to cross-examination at a preliminary hearing.
The respondent contends that Busby's testimony was admissible
under an exception to the hearsay rule as a statement of a
co-conspirator made in the defendant's presence, citing Sprouse v.
242 Ga. 831,
252 S.E.2d 173 (1979); Birt v. State,
236 Ga. 815,
225 S.E.2d 248 (Ga. 1976), cert.
denied, 429 U.S. 1029, 50 L. Ed. 2d 632, 97 S. Ct. 654
(1976). The Georgia Supreme Court so held in Buttrum, 249 Ga. at
654-55. Further, respondent contends that an improper admission of
hearsay evidence warrants habeas relief only where the evidence
was "material in the sense of a crucial, critical, highly
significant factor." Shaw v. Boney, 695 F.2d 528, 530 (11th
1. Analysis of the Issue.
In this case, the challenged statement was
inadmissible because it lacked the necessary indicia of
reliability required by the confrontation clause. While the
Supreme Court has not indicated that the right to confrontation is
exactly coextensive with the hearsay rules, it is rare that
evidence which is not hearsay or is admissible under a hearsay
exception is held violative of the confrontation clause. Collins
v. Francis, 728 F.2d 1322, 1336 (11th Cir. 1984) (citation
omitted), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 297,
105 S. Ct. 361 (1984). The crucial concern behind the
confrontation clause is the "trustworthiness of [the] testimony."
Two requirements must be met . . . before
confrontation may be dispensed with. First, the prosecution must
show that the out-of-court declarant is unavailable to testify
despite its good faith efforts to obtain his presence at trial.
Second, the prosecution must show that the out-of-court
statements bear sufficient indicia of reliability to provide the
jury with an adequate basis for evaluating their truth.
United States v. Chapman, 866 F.2d 1326,
1331 (11th Cir. 1989), (petition for certiorari filed June 17,
1989), citing, inter alia, Roberts, 448 U.S. at 66. Here, there
was no showing of the unavailability of Danny Buttrum.
The second requirement -- that the out-of-court
statement bear sufficient indicia of reliability -- presents more
difficulty in this case. The Supreme Court has noted that
reliability "can be inferred without more in a case where the
evidence falls within a firmly-rooted hearsay exception." Roberts,
448 U.S. at 66.
In this case, the
Georgia Supreme Court found the statement admissible under the
Georgia co-conspirator exception to the hearsay rule. See Buttrum,
249 Ga. at 654-55; see also Sprouse v. State, 242 Ga. 831, 252
S.E.2d 173 (Ga. 1979); Birt v. State, 236 Ga. 815, 225 S.E.2d 248
(Ga. 1976). Under the federal rule, however, the statement would
not have been admissible. The federal rule, Fed.R.Evid.
801(d)(2)(E), requires that the statement be made during the
pendency of the conspiracy: "A statement made by a co-conspirator
is admissible if evidence independent of [the] hearsay statement
shows that the conspiracy existed, that persons challenging
admission were members of the conspiracy, and that the statement
[was] made during the course of and in furtherance of the
conspiracy. United States v. Caporale, 806 F.2d 1487,
1512 (11th Cir. 1986), cert. denied, 483 U.S. 1021, 97 L.
Ed. 2d 763, 107 S. Ct. 3265 (1987).
In this case, there was
insufficient evidence that the statement was made during the
pendency of a conspiracy. The evidence showed only that at the
time the statement was made the Buttrums were riding around with
Busby, going to get beer. No independent evidence suggested that
the Buttrums had at that time entered a conspiracy to commit any
Thus, the state rule allowed admission while
the federal rule would not. In such a case, where "the state's
co-conspirator exception is more expansive than the federal, the
proper approach for federal courts on habeas corpus review" is to
consider "whether the testimony meets the more general tests of
reliability outlined in [the confrontation clause] opinions." Park
v. Huff, 493 F.2d 923, 930 (5th Cir. 1974), cert. denied,
423 U.S. 824, 46 L. Ed. 2d 40, 96 S. Ct. 38 (1975).
The more general tests for reliability are the
(1) whether the truth of the out-of-court
statements is corroborated by other evidence [citation omitted];
(2) the extent of the out-of-court declarant's personal
knowledge of the defendant's identity and role in the crime; (3)
the possibility that the statements are founded on faulty
recollection; and (4) the circumstances under which the
statements were made.
Chapman, 866 F.2d at 1330 (citations omitted).
The challenged statement in this case does not
meet those standards of reliability because of the first and
fourth factors. First, no other evidence corroborated the
statement that Janice would not mind Danny picking up a woman as
long as she could have sex with the woman first. And under the
fourth factor, the circumstances undermined the statement's
reliability. The statement could have been made in jest, or could
have been a lie to persuade Busby to help Danny find a woman, and
Janice could have been afraid to cross Danny and deny the
statement. Numerous interpretations could be made from the
statement. Cross-examination could have clarified the statement's
ambiguity. It clearly lacked the necessary indicia of reliability
required by the confrontation clause.
2. Harmless Error
In Delaware v. Van Arsdall, 475 U.S. 673,
89 L. Ed. 2d 674,
106 S. Ct. 1431 (1986), the court
held that "the constitutionally improper denial of a defendant's
opportunity to impeach a witness for bias, like other
Confrontation Clause errors, is subject to Chapman [v. California,
386 U.S. 18, 17 L. Ed. 2d 705,
87 S. Ct. 824 (1967)] harmless-error
analysis." Id., 475 U.S. at 684. The Chapman standard has most
recently stated by the Supreme Court as follows: A Constitutional
error may be held harmless "if the prosecution can prove beyond a
reasonable doubt that [it] did not contribute to the verdict."
Satterwhite v. Texas, 486 U.S. 249, , 100 L. Ed. 2d 284,
108 S. Ct. 1792 (1988). The Court
must "make an intelligent judgment about whether the erroneous
[comment] might have affected [the] jury." Id., 486 U.S. at , 100
L. Ed. 2d at 295.
Here, the prejudice of Busby's testimony far
outweighed its probative value. See Collins v. Francis, 728
F.2d 1322, 1336 n. 12 (11th Cir. 1984), cert. denied, 469 U.S.
963, 83 L. Ed. 2d 297, 105 S. Ct.
361 (1984), citing 4 Weinstein's Evidence para. 801(d) (2) (B)
 (1981) (in determining whether silence may be construed as
adoption of statement of coconspirator made in defendant's
presence, federal courts should make Fed.R.Evid. 403 prejudice
The prejudice did not sufficiently infect the
guilt-innocence phase to require a new trial, but it spilled over
and contaminated the sentencing phase so as to require a new
sentencing hearing. The evidence of guilt, that Janice Buttrum
knowingly and intentionally participated in the murder of Demetra
Parker, including the evidence of her confession, was
overwhelming. Even absent the admission of the hearsay statement,
the Court can confidently say, beyond a reasonable doubt, United
States v. Hasting, 461 U.S. 499, 510-11, 76 L. Ed. 2d 96,
103 S. Ct. 1974 (1983), that the jury
would have found her guilty of the murder of Demetra Parker.
The statement, however, prejudiced Buttrum in
the sentencing phase. The defense at sentencing was essentially
that Janice Buttrum, while participating in the murder, acted
under the domination of her husband and played a less culpable
role than he, one not warranting death. Busby's testimony implied
that Janice Buttrum wanted to have sex with Danny's "pick-up"
before Danny had sex with her. It portrayed her not as a dominated
follower of her husband, but as a willing participant in a plan of
perverse sexual activity that ultimately led to the death of
Demetra Parker. Moreover, the statement portrayed her as having
unusual or aberrant sexual desires. This portrayal was in accord
with Dr. Adams's diagnosis of her as sexually perverted. It
portrayed her as one with a "depraved" mind, which portrayal
tended to satisfy the element of one of the aggravating
circumstances, depravity of mind, argued by the prosecution for
imposition of death. Further, it was the only evidence introduced
by the state subject to interpretation that her participation in
the murder may have been premeditated and not an act of passion or
done under the domination of her husband. In this sense, the
statement was a "critical" and "highly significant factor." Its
introduction therefore was not harmless beyond a reasonable doubt
and requires a new sentencing hearing.
G. The Admission of Gruesome Photographs.
Buttrum contends that the introduction of
several gruesome photographs of the victim's body deprived her of
her Eighth and Fourteenth Amendment rights. These photographs were
introduced both at the guilt and penalty phases of the trial.
Generally, the introduction of evidence involves only state law
and is cognizable on habeas review only if it rendered the trial
fundamentally unfair. See Amadeo v. Kemp, 816 F.2d 1502,
1504-05 (11th Cir. 1987) (citations omitted), rev'd on other
grounds, sub nom., Amadeo v. Zant, 486 U.S. 214, 100 L. Ed.
108 S. Ct. 1771 (1988). Buttrum
contends that the photographs of the victim were unduly
prejudicial and inflammatory and were not relevant to any issue of
guilt or punishment.
For the sake of argument, the Court will assume
that the introduction of the photographs was improper at the guilt
phase of the trial because no issues were raised by the defense as
to, for example, the cause of death, the repeated stabbing,
Buttrum's participation in the murder, accident, etc. The gruesome
nature of the photographs thus could only have inflamed the
emotions of the jury. Nevertheless, the evidence of guilt in this
case, including the petitioner's post-arrest confessions, was
sufficiently overwhelming that the introduction of the photographs
was not so prejudicial as to result in a fundamentally unfair
Buttrum contends that the photographs also were
not relevant to any issue of punishment. The respondent, however,
correctly contends they were relevant to the aggravating
circumstance that the murder was wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim. O.C.G.A. ? 17-10-30(b) (7). The
photographs were clearly relevant to show the (b) (7)
The location, number, and extent of the wounds were
clearly relevant to these factors. Accordingly, habeas corpus
relief is not warranted on this issue.
H. Prosecutorial Misconduct.
Buttrum contends that several remarks of the
prosecutor during closing argument violated her constitutional
rights. She contends first that the prosecutor violated her Fifth
Amendment right against compulsory self-incrimination by
commenting on her right not to take the witness stand:
Defense? There is none. There has not been
one iota of evidence to indicate that this defendant did not do
what she is charged with . . . .
Tr. 1713. She contends that this remark
violated the rule that the prosecutor may not comment of the
defendant's failure to testify during trial.
1. Legal Principles.
The Fifth Amendment prohibition against
compulsory self incrimination insures the right of all criminal
defendants not to testify at trial. From this derives the
proscription that the prosecution may not comment on its exercise.
Griffin v. California, 380 U.S. 609, 611-15, 14 L. Ed. 2d
85 S. Ct. 1229 (1965). "Prosecutorial
comment is improper if the defense can demonstrate either that
'(1) the prosecutor manifestly intended to comment on the
defendant's silence, or (2) that the character of the comment was
such that a jury would naturally and necessarily construe it as a
comment on the defendant's silence.'" United States v. Griggs,
735 F.2d 1318, 1322 (11th Cir. 1984) (citation omitted). While
it is improper for the prosecution to comment on the defendant's
failure to testify, "it is not error 'to comment on the failure of
the defense, as opposed to the defendant, to counter or explain
the evidence.'" Id. at 1321, quoting United States v. Bright,
630 F.2d 804, 825 (5th Cir. 1980) (emphasis added by Bright
court); see also United States v. Johnson, 713 F.2d 633,
650-51 (11th Cir. 1983) (where defendants chose not to testify at
trial but records available to the defense might have existed
which would have contradicted the government's theory of the case,
prosecutorial comment on the failure of the defense to produce any
evidence or testimony in rebuttal to the espoused theory held
permissible), cert. denied, sub nom., Wilkins v. United States,
465 U.S. 1081, 79 L. Ed. 2d 766, 104 S. Ct. 1447
(1984). Nevertheless, "where the rebuttal testimony or evidence
could come only from the defendant, a failure of the defense to
present evidence is equivalent to the failure of the defendant to
testify." Griggs, 735 F.2d at 1322 (emphasis in original); see
also Griffin v. California, 380 U.S. 609, 610-15, 14 L. Ed.
2d 106, 85 S. Ct. 1229 (1963) (comment on defendant's failure to
provide evidence on matters that only he could have been expected
to deny or explain violated 5th Amendment).
In this case, the state habeas court found the
The thrust of the prosecutor's case was that
the Petitioner was an active, willing and aggressive participant
in a conspiracy to commit murder. Through its line of
questioning and cross-examination throughout the trial, the
defense tried to show that the murder was planned and executed
solely by Danny Buttrum. Thus viewed in the context of the
charges against Petitioner, this Court finds that the
prosecutor's statements were made for the purpose of arguing
Petitioner's involvement in the crime.
Respondent's Exhibit No. 35 at 7. This finding
of fact as to the prosecutor's purpose is entitled to presumptive
weight by this Court. 28 U.S.C. ? 2254(d).
This finding resolves the inquiry about the first possible basis
for finding improper conduct: whether the prosecutor intended the
statement as a comment on the defendant's right to silence.
The finding that the theory of the defense was
that the murder was executed solely by Danny Buttrum, however, is
not fairly supported by the record. 28 U.S.C. ? 2254(d) (8). The
defense was that while Janice Buttrum may have participated in the
murder, she played a minor part and acted under the influence of
The second prong of the test for finding the
comment improper is satisfied. The prosecutor's remarks "naturally
and necessarily" would have been construed by the jury as a
comment on Buttrum's failure to testify. The prosecution's most
important and most damning evidence was Buttrum's confession. The
jury would have expected that if any explanation of those
extremely incriminating statements existed, Janice Buttrum would
have been the one to give such explanation. Thus a comment on the
failure of the defense to counter the prosecution's central piece
of evidence would naturally have been taken as a comment on the
defendant's failure to testify.
Further, the crime occurred in a motel room
where only Janice and Danny Buttrum, their baby, and the victim
were present. The defense never claimed Janice was not present in
the room. If she had made such a claim, the prosecutor's comment
might be taken as a proper attack on her defense, because the jury
could assume that if she was not present at the crime, she would
have presented alibi evidence. See Duncan v. Stynchcombe,
704 F.2d 1213, 1215 (11th Cir. 1983) (prosecutor's comment
that "there has been no evidence in this case from the defense at
all that Duncan was not in that house" held a proper reference to
failure of the defense to offer any alibi evidence as to the
defendant's whereabouts at the time of the burglary). The defense
here was that Buttrum played a more minor role and acted under the
influence of her husband. The person who naturally would be
expected to explain the role she played in that motel room was
Janice Buttrum herself. The prosecutor's remarks thus "naturally
and necessarily" would have been taken as a comment on her failure
to testify. Accordingly, Buttrum's Fifth Amendment right not to be
subjected to prosecutorial comment on her failure to testify was
3. Harmless Error.
The conclusion, however, does not end the
inquiry. The Supreme Court has held that such a violation of the
defendant's Fifth Amendment right is subject to analysis of
whether the improper comment was harmless beyond a reasonable
doubt. United States v. Hasting, 461 U.S. 499, 507-512, 76
L. Ed. 2d 96, 103 S. Ct. 1974 (1983), citing Chapman v.
California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct.
824 (1967). The Chapman standard for harmlessness of a
constitutional error has most recently stated by the Supreme Court
as follows: A constitution error may be held harmless "if the
prosecution can prove beyond a reasonable doubt that [it] did not
contribute to the verdict." Satterwhite v. Texas, 486 U.S. 249,
, 100 L. Ed. 2d 284, 293, 108 S. Ct. 1792 (1988). The Court must
"make an intelligent judgment about whether the erroneous
[comment] might have affected [the] jury." Id., 486 U.S. at , 100
L. Ed. 2d at 295. In Hasting, the Court stated the test as,
"absent the prosecutor's allusion to the failure of the defense to
proffer evidence . . ., is it clear beyond a reasonable doubt that
the jury would have returned a verdict of guilty?"
The test of whether a comment on the failure to
testify might have contributed to a verdict requires a kind of
post-hoc speculation many would consider to be of dubious
dependability. Where the evidence of guilt is overwhelming the
test is more easily applied. Here, Buttrum's confession presented
overwhelming evidence of her guilt. But the confession may have
been given undue weight if the jury concluded that her failure to
explain her confession meant there was no explanation.
Nevertheless, applying the Hasting formulation of the standard,
the Court can say beyond a reasonable
doubt that absent the unconstitutional comment, given the strong
evidence of the state, including Buttrum's confessions, the jury
would have found her guilty of murder and theft by taking. This
issue therefore does not warrant the grant of habeas relief.
The petitioner's challenges to other comments
of the prosecutor have been carefully examined and determined to
be without merit. While several constituted improper prosecutorial
comment, viewed in the context of the entire trial, they were not
so egregious as constitute a denial of fundamental fairness. See
Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d
94 S. Ct. 1868 (1974); Brooks v.
Kemp, 762 F.2d 1383, 1400 (11th Cir. 1985), cert. denied,
478 U.S. 1022, 92 L. Ed. 2d 742, 106 S. Ct. 3337
(1986). The strength of the evidence at trial left little doubt
about Buttrum's participation in the crime. Absent these
additional allegedly improper comments, it can be said beyond a
reasonable doubt the verdict would have been the same.
I. The Trial Court's Charge on Conspiracy.
Buttrum next contends that she was indicted for
malice murder and theft by taking, but the trial court charged
that the jury could convict on vicarious liability theories:
conspiracy, aiding and abetting murder, and felony murder. She
contends the court effectively amended the indictment from a
murder count, to one much broader, in violation of her
constitutional rights. She contends this Amendment deprived her of
her right to notice of the charges against her and subjected her
to conviction on a charge not made.
In its charge, the trial court defined
I will define what the Law means by
"Conspiracy." A person is involved in a conspiracy to commit a
crime when that person, together with one or more other persons,
conspires to commit any crime, and that any one or more of such
persons does an overt act to effect the object of the
conspiracy. To show a conspiracy -- and I Charge you that it is
sufficient for two or more persons, in any manner, positively or
tacitly came [sic] to a mutual understanding that they will
accomplish an unlawful design or a criminal act. Anyone after a
conspiracy is formed who knows of its existence and purposes and
joins therein becomes as much a party thereto as if he had been
an original member.
Respondent's Exhibit 3 at 1740. Later, the
court charged the jury that if they found the existence of a
conspiracy, they were permitted to consider statements of any
coconspirator of the defendant against her.
An amendment of the indictment occurs when the
charging terms of the indictment are altered, either literally or
in effect, by the prosecutor or the court after the grand jury has
last passed upon them. United States v. Salinas, 654 F.2d 319,
324 (5th Cir. Unit A August 1981) (citation omitted), overruled on
other grounds, United States v. Adamson, 700 F.2d 953 (5th
Cir. 1983), cert. denied, 464 U.S. 833, 78 L. Ed. 2d 116,
104 S. Ct. 116 (1983). A constructive amendment to the
indictment occurs where a jury instruction "so modifies the
elements of the offense charged that the defendant may have been
convicted on a ground not alleged by the grand jury's indictment."
United States v. Lignarolo, 770 F.2d 971, 981, n. 15 (11th
Cir. 1985), cert. denied, 476 U.S. 1105, 90 L. Ed. 2d 358,
106 S. Ct. 1948 (1986); United States v. Johnson, 713
F.2d 633, 643 (11th Cir. 1983), cert. denied, 465 U.S. 1081,
79 L. Ed. 2d 766, 104 S. Ct. 1447 (1984); see also Stirone
v. United States, 361 U.S. 212, 4 L. Ed. 2d 252,
80 S. Ct. 270 (1960).
In this case, no constitutional error was
committed by the charging court. "Statements of a coconspirator
may be introduced into evidence even though the government has not
charged [the defendant] with conspiracy[,] as long as the
existence of the conspiracy has been properly established." United
States v. Salisbury, 662 F.2d 738, 740 (11th Cir. 1981),
cert. denied, 457 U.S. 1107, 73 L. Ed. 2d 1316, 102 S.
Ct. 2907 (1982), citing United States v. Freeman, 619 F.2d
1112, 1123 (5th Cir. 1980), cert.
denied, 450 U.S. 910, 67 L. Ed. 2d 334, 101 S. Ct.
1348 (1981). If the trial court may instruct the jury that it
may consider a coconspirator's statements if it finds a
conspiracy, the trial court, a fortiori, must be permitted to
define what is a conspiracy. No more was done at Buttrum's trial.
Similarly, a charge of aiding and abetting need
not be specifically pleaded, since it is not a separate offense,
and a defendant indicted for the substantive offense can be
convicted as an aider and abettor upon proper demonstration of
proof so long as no unfair surprise results. United States v.
Kasvin, 757 F.2d 887 (7th Cir. 1985), cert. denied, 474
U.S. 1032, 88 L. Ed. 2d 572, 106 S. Ct. 592 (1985).
Clearly the evidence in this case on the facts of the crime
eliminated any possibility of surprise to the defense. Finally,
the trial court made no charge on felony murder. Accordingly, the
petitioner's attack on the jury charge is without merit.
J. The Challenge to the Unified Appeal
The Unified Appeal Procedure, O.C.G.A. ?
17-10-36 (UAP), comprises rules promulgated by the Georgia Supreme
Court that prescribe certain procedures utilized by the trial
court, defense counsel, and the prosecutor prior to, during, and
after trial. These procedures are intended to insure that all
matters that could be raised by the defendant are raised, or are
waived, to prevent and correct error in the proceedings, and to
provide proper transcripts of these matters for utilization on the
unified appeal of a death sentence. See O.C.G.A. ? 17-10-36;
Unified Appeal Procedure, 246 Ga. A-5 (Ga. 1980). Much of the
procedure entails holding hearings or conferences among the trial
court, the defendant, defense counsel, and the prosecutor, which
focus on various rights and matters that could be asserted by the
The Georgia Supreme Court has upheld this
statutory scheme against constitutional attack both on its face,
Sliger v. State,
248 Ga. 316,
282 S.E.2d 291 (Ga. 1981), cert.
denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d
657 (1982), and as applied in this case, Buttrum v. State, 249 Ga.
652, 293 S.E.2d 334 (Ga. 1982), cert. denied, 459 U.S. 1156,
74 L. Ed. 2d 1004, 103 S. Ct. 801 (1983).
Buttrum presents the following alleged
constitutional deficiencies in the UAP: that it abridged her right
to due process by "upsetting the balance of power between the
accused and the prosecution," that it abridged her right against
self-incrimination, her right to counsel, and her equal protection
rights through its selective application only to capital
Without expressing any opinion on the merit of
these issues in a proper case, they are without merit in this
case. Buttrum fails to show how any of these alleged violations
caused harm that would warrant habeas corpus relief. None of the
violations alleged are ones that merit habeas relief without a
showing of prejudice from their violation. Few are the
constitutional errors that permit such relief without a showing of
harm. See, e.g., Payne v. Arkansas, 356 U.S. 560, 2 L. Ed.
78 S. Ct. 844 (1958) (introduction of
coerced confession); Gideon v. Wainwright, 372 U.S. 335, 9
L. Ed. 2d 799,
83 S. Ct. 792 (1963) (complete denial
of right to counsel); Tumey v. Ohio, 273 U.S. 510, 71 L.
47 S. Ct. 437 (1927) (adjudication by
biased judge). Since Buttrum's alleged errors are not ones that
permit relief without a showing of harm, and since she has alleged
no harm, her attack on the UAP is without merit.
III. THE SENTENCING PHASE.
A. The Constitutionality of Executing One
Who Was Seventeen at the Time of the Crime.
At the time of the crime, Janice Buttrum was 17
years old. Evidence was submitted that she had the emotional
maturity of one 12 or 13. She contends
that killing her would be cruel and unusual because of her age and
because, in the history of the United States, only 9 females who
committed crimes before their 18th birthday have been executed.
The last was in 1912. At present, of over 2,000 persons on death
row, only two were minor females at the time of the crime.
These facts certainly suggest that the
execution of Janice Buttrum would be "unusual." Nevertheless, the
Supreme Court has foreclosed this issue by its recent decision,
Stanford v. Kentucky, 492 U.S. 361,
109 S. Ct. 2969, 106 L. Ed. 2d 306
(1989). There the Court held that it does not violate the Eighth
Amendment to execute one who was 17 at the time of the crime.
Buttrum cites no authority for her contention that her death
penalty is unconstitutional because she was emotionally 12 or 13
at the time of the crime. This claim is foreclosed by the Supreme
Court's decision that execution of those mentally retarded at the
time of the crime is not per se unconstitutional. See Penry v.
Lynaugh, 492 U.S. 302,
109 S. Ct. 2934, 106 L. Ed. 2d 256
Buttrum also contends that her death sentence
is cruel and unusual because she acted under the domination of her
husband, eleven years her senior. Further, her history of repeated
neglect and abuse by her parents, continuous childhood ridicule
and abuse by peers, and involuntary commitment to state
institutions without having committed any crime, she maintains,
render her execution cruel and unusual. These facts, however, were
properly presented to the jury at the sentencing phase of her
trial in mitigation. No case has been cited, and none has been
found, that holds that these mitigating factors can override the
jury's decision and constitutionally prohibit her death. In
accordance with the mandatory authority of the Supreme Court, this
issue is without merit.
B. The Admission of a Prior Uncounseled
Conviction Without Prior Notice to the Defendant.
At the sentencing phase, after the defense
examined its last witness, Janice Buttrum, the prosecution sought
introduction of a prior conviction of hers for simple assault. She
contends that its admission was unconstitutional, first, because
the prosecution never gave prior notice of its intention to use
it, as required by O.C.G.A. ? 17-10-2, and, second, because it was
a prior uncounseled conviction.
The first basis, that the introduction was in
violation of O.C.G.A. ? 17-10-2, is without merit. That statute
provides that the prosecution must provide prior notice to the
defendant of its intention to introduce any prior conviction of
the defendant into evidence. See id. While the respondent contends
this is merely a matter of state law, Buttrum maintains that when
the state has provided for the imposition of criminal punishment
subject to certain procedural protections, the violation of those
protections rises above the realm of state law. The defendant has
a legitimate expectation that punishment will not be meted out
other than in accordance with those protections. She further
contends that the Eleventh Circuit has held that O.C.G.A. 17-10-2
"promotes reliability by allowing the defendant time to prepare a
defense to the prosecution's evidence." Brooks v. Kemp, 762
F.2d 1383, 1406 n. 36 (11th Cir. 1985) (en banc).
Petitioner's argument is correct as far as it
goes. But in this case the Georgia Supreme Court on direct appeal
affirmatively held that the admission of the conviction was not in
error since it was admitted as character evidence in rebuttal.
Buttrum, 249 Ga. at 655-56. The court thus effectively held that
the state procedural protection was not violated. This Court must
defer to a ruling of the Georgia Supreme Court on an issue of
state law. Buttrum's expectation that she would not be punished
other than through compliance with that state procedural
protection therefore was not frustrated. Because the statute was
not violated, Buttrum's due process rights were not violated, and
her argument is without merit.
Respondent has not addressed in its briefs the
issue that the introduction of the
conviction was unconstitutional as an uncounseled conviction.
Nevertheless, in this Circuit, it is not improper to introduce at
the penalty phase of a criminal trial a prior uncounseled
misdemeanor conviction where the defendant was not imprisoned. See
Wilson v. Estelle, 625 F.2d 1158, 1159 (5th Cir. 1980),
cert. denied 451 U.S. 912, 68 L. Ed. 2d 302, 101 S. Ct.
1985 (1981), citing for comparison Baldasar v. Illinois,
446 U.S. 222, 223-24, 64 L. Ed. 2d 169,
100 S. Ct. 1585 (1980) (plurality
opinion) (uncounseled misdemeanor conviction may not be used under
an enhanced penalty statute to convert a later misdemeanor into a
felony with a prison term); see also United States v. Peagler,
847 F.2d 756, 757-79 (11th Cir. 1988); Thompson v. Estelle,
642 F.2d 996, 998 (5th Cir., Unit A, April 1981). This issue
therefore must fail.
C. The Trial Court's Provision of
Psychiatric Assistance And the Testimony of Dr. Adams.
Buttrum contends that the trial court violated
her constitutional rights when it denied her funds to obtain
private psychiatric assistance after the prosecution had obtained
its own private psychiatric assistance. She also contends the
testimony of the prosecution's psychologist at the sentencing
phase of the trial violated her constitutional rights. The Court
1. Factual Background.
Prior to trial, the defense filed a motion for
funds for expert psychiatric assistance. It argued that counsel
had no experience in locating and preparing witnesses for a death
sentence penalty phase and that the testimony of psychological
experts was essential. The defense submitted affidavits from three
criminal defense lawyers with experience in capital cases who
stated that access to private psychiatric services was
indispensable to an effective defense in the case.
The court denied the motion and, instead,
offered that Buttrum be evaluated for sanity and competency by
doctors at state facilities. The defense responded that these
would be inadequate because it needed "an extensive, clinical
examination in an atmosphere that is conducive to rendering
appropriate medical results." Respondent's Exhibit 14 at 9. Also,
the defense argued that such facilities, being state facilities,
were probably "State or Prosecution oriented on the questions [at
hand]." Id. at 10. Third, the defense expressed its concern about
the lack of confidentiality because the psychiatrist-patient
privilege did not apply in court-ordered evaluations.
Nevertheless, having had the motion denied, defense counsel
consented to the competency and sanity evaluations at state
facilities. Buttrum was examined by Dr. Bullard at Northwest
Regional Hospital in Rome, Georgia, and was evaluated for over two
months at Central State Hospital in Millidgeville.
After she was found competent to stand trial,
Buttrum unsuccessfully reasserted her motions for a comprehensive
private psychiatric evaluation. Shortly before trial, the
prosecution announced its intention to present at the penalty
phase of the trial the testimony of Dr. Henry Adams, a
psychologist from the University of Georgia. The prosecution filed
a "Notice of Further Disclosure," and attached a letter from Dr.
Adams which revealed Adams's opinion and expected testimony.
Respondent's Exhibit 1 at 437-49. Adams's clinical impression was
that of anti-social personality disorder, paraphilia, and sexual
sadism. He characterized these conditions as including "stimulus
hunger," a need of ever increasing stimulation and excitement,
which in sexual matters often lead to sadism, "where they become
sexually excited by the suffering and pain of others." He
concluded: "There is little doubt that she is an extremely
dangerous person, and that if she is released, the possibility of
her committing similar acts is high." Id.
Upon receiving the notice, the defense
immediately moved for a continuance and renewed its motion for
funds to retain an expert who was a peer to Dr. Adams. The defense
informed the court that the testimony of Dr. Adams could have a
devastating effect on the outcome of the trial. It argued that the
provision to the state of a specialist outside the state system
the defense similar services denied fundamental fairness. The
defense explained that it had spoken with the doctors involved in
the competency evaluations but maintained that the defense needed
and was entitled to the assistance of a private psychiatrist. The
court voiced concerns about the expense involved. The defense
argued that the prosecution was using public funds to hire its
psychologist. The court denied the motion, indicating that the
defense had available professionals in the state system.
At the penalty phase of the trial, the
prosecution called one witness - Dr. Adams. Adams testified that
he had written 10 books, published over 100 articles, many on
sexual disorders, was a diplomate in Clinical Psychology, and had
testified previously as an expert on sexual disorders. He
testified that he had formed his clinical impression of Buttrum on
the basis of the file of the case and the reports from the
competency and sanity evaluations. Adams never interviewed Janice
In testimony, Adams repeated the clinical
impression stated in his letter. He testified that Janice Buttrum
was an anti-social personality, one who is impulsive,
irresponsible, breaks the law, is in conflict with society's
norms, may be sexually promiscuous, and occasionally "quite
aggressive." And she was a paraphiliac, one who achieves sexual
excitement from the pain and humiliation of a non-consenting
adult. She was a sexual sadist, one with stimulus hunger, who is
never satisfied sexually, who is "turned on" by causing suffering
and torture to the victim, and "when the disorder really becomes
severe, they may torture, kill, mutilate their victims. It is a
repetitive kind of activity that continues until the individual is
apprehended or stopped in some way or another." Respondent's
Exhibit 4 at 1814. Such forms of sadism usually manifest early,
around puberty and often will increase in intensity, particularly
when associated with the anti-social personality "so that they
have to have more, and more, and more extreme forms of this
activity in order to get excited or turned on." Id. at 1815. As to
the potential for other acts, he testified that "part of the
definition of sexual sadism is repetitive acts; and yes, with this
kind of diagnosis, it's kind of - you would expect it to
continue." Id. at 1823.
The defense called a number of witnesses to
describe Janice Buttrum's upbringing and troubled life but called
no expert to express an opposing view to Doctor Adams's clinical
In her state habeas corpus action, Buttrum
introduced affidavits from three psychiatrists who evaluated
Buttrum. All three disagreed strongly with Adams's opinion of
future dangerousness and his diagnoses. Psychiatrist Jonas R.
Rappeport, M.D., stated:
I further do not believe that
it is possible within reasonable medical certainty to make such
a long term future dangerousness prediction on an individual who
is only 17 years old who has never been convicted of or admitted
to participating in other serious violent anti-personal crimes.
In fact I would even question the ability to make the diagnosis
of antisocial personality disorder or paraphilia sexual sadism
with any degree of certainty in an individual so young with this
history. More importantly, I believe that it would be
exceedingly difficult and not within reasonable medical
certainty to make any such long term predictions or serious
diagnoses without having interviewed the individual extensively.
Respondent's Exhibit 34 at 1-2.
Psychiatrist Robert L. Sadoff, M.D., also found
Adams's clinical impression seriously flawed. He noted that by
definition, a sexual sadist or paraphiliac is defined by repeated
sexual aberrations. According to DSM III (Diagnostic and
Statistical Manual, 3rd Edition - the American Psychiatric
Association's authoritative reference source for diagnosis) there
must be at least two or more occasions in order to call it
repeated. No such repeated tendencies were present in Janice's
case. Sadoff noted that the materials reviewed by Adams included
"no indication that [Buttrum had] had prior aggressive or hostile
sadistic sexual behavior." Id., Affidavit of Robert L.
Sadoff at 3. He noted that
"[Danny Buttrum's] history is replete with his concern about his
sexual needs and his fear of urges of raping women. Janice's
history is not replete with sexual problems or concerns of sexual
violence." Id. at 4. He noted that DSM III reserves diagnoses of
"anti-social personality" for "people who are 18 years of age or
older." Id. Sadoff found it "inconceivable" for Adams to make
"such a blatant statement about her 'dangerousness' and her
probability of committing similar acts of this type." Respondent's
Exhibit 34 at 42.
Gary E. Dudley, a clinical Psychologist,
interviewed Buttrum for three and one-half hours, performed
numerous psychological tests, and reviewed all the material
reviewed by Adams along with additional material on Danny Buttrum.
He found Janice Buttrum to have poorly defined ego boundaries, to
be easily influenced by the emotions and behaviors of others,
especially those from whom she receives emotional support. Id.
Affidavit of Gary E. Dudley at 5. She manifested "severe
dependency conflict," and "she subordinates her own needs to those
of the person on whom she has become emotionally dependent." Id.
at 6. He diagnosed her as suffering from antisocial personality
disorder and dependent personality disorder but that her condition
was treatable. Id. at 6, 9. He found no evidence that she suffered
from any paraphilia disorder or sexual sadism.
2. Legal Principles.
In this federal petition for habeas relief,
Buttrum relies principally on two Supreme Court cases, Barefoot v.
Estelle, 463 U.S. 880, 77 L. Ed. 2d 1090,
103 S. Ct. 3383 (1983), and Ake v.
Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53,
105 S. Ct. 1087 (1985), for her
contention that the trial court's denial of funds for
psychological assistance denied her constitutional rights.
Specifically, she contends that it was unconstitutional to allow
Dr. Adams's opinions of future dangerousness to stand unopposed by
a defense psychologist.
In Barefoot, the petitioner claimed that the
constitution forbids altogether the admission of psychiatric
opinion of one's propensity for future dangerousness at the
penalty phase of a capital trial. With the backing of the American
Psychiatric Association, which argued that predictions of future
dangerousness are wrong two-thirds of the time, he claimed that
such opinion is unreliable and prejudicial. The Court rejected a
per se exclusion of such testimony:
We are unconvinced, however, at least as of
now, that the adversarial process cannot be trusted to sort out
the reliable from the unreliable evidence and opinion about
future dangerousness, particularly when the convicted felon has
the opportunity to present his own side of the case.
Id. at 901. The Court concluded Barefoot never
contended "the court refused to provide an expert for petitioner,"
id. at 899 n. 5., and held that the admission of opinion testimony
on future dangerousness does not violate the Constitution.
In Ake, the Court held that indigent defendants
have a due process right to competent psychiatric assistance when
an adequate showing is made that sanity will be a significant
issue at trial. It further held that indigent defendants have the
right to psychiatric assistance when the issue of future
dangerousness is raised at the sentencing hearing. Where such
issue is raised by testimony of a prosecution witness, the
defendant must be provided a competent psychiatrist "who will
conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense." The Court reasoned:
Psychiatry is not . . . an exact science, and
psychiatrists disagree widely and frequently on what constitutes
mental illness, on the appropriate diagnosis . . . on cure and
treatment, and on likelihood of future dangerousness.
Id. at 81.
This Court has upheld the practice in many
States of placing before the jury psychiatric testimony on the
question of future dangerousness, [citation omitted] at least
where the defendant has had access to an expert of his own.
[citation omitted.] In so holding, the Court relied,
in part, on the assumption that the fact
finder would have before it both the views of the prosecutor's
psychiatrists and the "opposing views of the defendant's
doctors" and would therefore be competent to "uncover,
recognize, and take due account of . . . shortcomings" in
predictions on this point. [citation omitted.] Without a
psychiatrist's assistance, the defendant cannot offer a
well-informed expert's opposing view, and thereby loses a
significant opportunity to raise in the jurors' minds questions
about the State's proof of an aggravating factor. In such a
circumstance . . . due process requires access to a psychiatric
examination on relevant issues, to the testimony of the
psychiatrist, and to assistance in preparation at the sentencing
Id. at 84 (emphasis added).
Where the defendant raises the defense of
insanity, an affirmative defense, the Court held that the
defendant must make an adequate showing of need for the
psychiatric assistance. See also Moore v. Kemp, 809 F.2d 702,
712 (11th Cir. 1987) (examining the minimum required showing),
cert. denied, 481 U.S. 1054, 95 L. Ed. 2d 847, 107 S.
Ct. 2192 (1987). The Court required no such showing on the
issue of future dangerousness. See Ake, 470 U.S. at 83, 86. The
Court merely stated that when the issue is raised by a prosecution
witness at sentencing, the defendant has the right to psychiatric
3. Applicability to Buttrum's Case.
In this case, immediately upon learning of the
prosecutor's plan to call Dr. Adams, the defense moved for a
continuance and renewed its motion for funds to hire its own
psychiatric assistance. The letter of Dr. Adams filed with the
prosecution's "Notice of Disclosure" was before the court, and the
issue of future dangerousness was raised therein. With the issue
of future dangerousness raised, and Buttrum's motion renewed, the
right to the assistance protected by Ake was triggered. Ake, 470
U.S. at 83, 86. The court, however, failed to provide the defendant the
kind of assistance contemplated by Ake.
a. Private vs. Public Assistance.
Defense counsel argued it needed a private
examination from a psychiatrist who could meaningfully assist the
defense. It argued that Adams's testimony would be devastating if
the defense could not counter Adams's diagnosis with its own
In Ake, the Court noted:
This is not to say, of course, that the
indigent defendant has a constitutional right to choose a
psychiatrist of his personal liking or to receive funds to hire
his own. Our concern is that the indigent defendant have access
to a competent psychiatrist for the purposes we have discussed,
and as in the case of the provision of counsel we leave to the
States the decision on how to implement this right.
Id. at 83.
Here, the trial court denied the motion for
funds to hire a private doctor to assist in the defense but ruled
that the defense could use the services of the doctors at the
state facilities. The petitioner asserts that
these sources were inadequate to
effectively oppose Dr. Adams for the same reasons she stated those
doctors were inadequate initially.
The petitioner's argument that state doctors
are categorically not qualified is meritless. Buttrum contends
that fundamental fairness required that if the prosecution
expended public funds to hire a private psychologist, it had the
right to hire such a doctor of her own. Ake, however, explicitly
states that the defendant was entitled necessarily neither to a
psychiatrist of her own liking, nor necessarily to funds with
which to hire her own psychiatrist. Nothing in Ake or in its
Eleventh Circuit progeny provides that a public doctor is
inadequate per se, without some showing of bias or other
Buttrum nevertheless contends she was entitled
to a private doctor because Ake entitles the indigent defendant to
a confidential evaluation. She maintains that Ake stated that the
request for psychiatric assistance is to be made ex parte, see id.
at 82, implying a need for confidentiality. Since the state law
psychiatrist-patient privilege does not cover evaluations by state
doctors conducted pursuant to court order, Buttrum maintains, the
assurances of Ake could not be realized by state doctors. A
careful reading of the Georgia cases on this subject, however,
shows this contention to be without merit.
It is true that where a court orders a
psychiatric examination to determine the competency of a
defendant, the privilege does not apply. See Moody v. State,
244 Ga. 247, 250,
260 S.E.2d 11 (Ga. 1979); Massey v.
226 Ga. 703, 704-05,
177 S.E.2d 79 (Ga. 1970), cert.
denied, 401 U.S. 964, 28 L. Ed. 2d 248,
91 S. Ct. 984 (1971); see Kimble v.
240 Ga. 100, 101,
239 S.E.2d 676 (Ga. 1977). The
rationales for the nonapplicability of the privilege are first
that the evaluations are not made for treatment, which is required
for operation of the privilege, and, second, in such cases, the
psychiatrist is a witness for the court, not for the defense.
Both rationales work against Buttrum. Under the
first rationale, if the trial court appointed a public doctor to
provide the assistance contemplated by Ake, the Georgia privilege
would likely apply, because the doctor would be a witness for the
defense, not for the court. Under the second rationale, whether a
public doctor were appointed or funds granted for a private
doctor, the examinations would not be strictly for treatment;
therefore, the applicability of the privilege under the second
rationale would be the same whether the doctor was public or
private. Thus, Buttrum's contention that the psychiatrist-patient
privilege would not apply is without merit.
The Court concludes that the services of a
psychiatrist from the public sector of the state are not per se
inadequate under Ake. A psychiatrist or psychologist who works in
the public sector may be utilized, as long as the professional's
position is not related to the criminal justice system or the
prosecution. The state doctors offered by the trial court were not
inadequate merely because they were state doctors.
b. The Ake Violation.
The trial court violated Buttrum's due process
right under Ake for a different reason: The court failed to
provide the scope of psychiatric assistance contemplated by Ake.
Under Ake the defendant is entitled to "a psychiatric examination
on relevant issues, to the testimony of the psychiatrist, and to
assistance in preparation at the sentencing phase." Ake, 470 U.S.
at 84. The Court explained that "without a psychiatrist's
assistance, the defendant cannot offer a well-informed expert's
opposing view, and thereby loses a significant opportunity to
raise in the jurors' minds questions about the State's proof of
[future dangerousness]." Id. It is essential for the "'defendant's
doctors'" to be "competent to 'uncover, recognize, and take due
account of . . . short comings' in predictions on this point."
Id., quoting Barefoot, 463 U.S. at 899. While Buttrum may go too
far in arguing that the Ake psychiatrist must be "part of the
defense team," it is clear that Ake contemplates a psychiatrist
who will work closely with the defense by
conducting an independent examination, testifying if necessary,
and preparing for the sentencing phase of the trial. This
assistance the trial court failed to provide.
In denying Buttrum's request for funds, though
the issue of future dangerousness had been raised, the trial court
saw no need for any further examinations of Buttrum, and the
assistance it was prepared to offer was far more limited than that
contemplated by Ake. When counsel stated that additional
examinations were needed and that the state evaluations on
competency were inadequate to counter Dr. Adams's opinion, the
There's no indication that any further
psychiatric examination would be any different.
Respondent's Exhibit 39, Hearing of August 19,
1981, at 7.
The court saw no reason for additional
examination on the newly introduced issue of future dangerousness.
Ake at a minimum requires this much. Moreover, the state doctors
have admitted by affidavit they never examined Buttrum to
determine future dangerousness or the existence of the disorders
diagnosed by Adams. See Respondent's Exhibit 33 at 60-61, 62-63.
Further, in its explanation of the assistance
that was available from the state doctors, the court stated:
So as far as your preparation for trial, . .
. I told you that Tim Bullard would be glad to sit down and
explain any psychiatric terms to you. . . . That any of those
men will sit down and you can interview them. I mean, they won't
come -- I don't know that they'd come and sit at the counsel
table with you, but so far as just preparing for cross
examination and finding out what psychiatric terms are and all,
any of those doctors have always been happy to cooperate.
Id. at 8 (emphasis added). While a public
sector doctor may fill the Ake role, the court must make
arrangements that the doctor provide the level of assistance
required by Ake. Ake requires more than explanations of
psychological terms and assistance in preparation for
cross-examination. Moreover, the psychiatric assistance apparently
was to be limited by the discretion of the doctors as to their
level of involvement. Ake is based upon the assumption that the
defendant is able to obtain and put before the jury his
"well-informed expert's opposing view" of the prosecution's
testimony. Id. at 84. In this case, the trial court failed to
provide the defense the minimum assistance required by Ake. It
thereby violated Buttrum's constitutional right to due process of
law at her sentencing hearing.
c. Harmless Error.
While Ake does not require a particular showing
of prejudice, the error clearly was not harmless in this case.
This case presents a classic example of the one-sided sentencing
hearing that Ake stands against. It must be remembered that
Barefoot permitted evidence of future dangerousness at all, only
on the assumption that the defendant would have his own doctor's
"opposing" testimony. Opposing opinions from doctors such as those
submitted by Buttrum at her state habeas hearing, could likely
have refuted Dr. Adams's testimony and affected the outcome of the
sentencing trial. If the trial court had appointed a public
psychiatrist to provide the assistance contemplated by Ake, or
provided funds for the defense to obtain such assistance, such
testimony could have been presented to the jury. There exists a
reasonable possibility that had the jury heard Adams' opinion of
future dangerousness so severely criticized, the jury might have
concluded that Janice Buttrum's propensity for future
dangerousness was not so great as to require her execution.
Buttrum's right to due process as provided by
Ake was violated, and habeas corpus relief is warranted on this
D. The Estelle v. Smith Issue.
Buttrum also contends that the admission of
Adams's testimony violated her Fifth and Sixth Amendment rights
under Estelle v. Smith, 451 U.S. 454, 462, 68 L. Ed. 2d
359, 101 S. Ct. 1866 (1981). Smith
provides that the state may not use evidence from a psychiatric
interrogation in a capital sentencing proceeding unless the
defendant received proper Miranda warnings prior to the
examinations. Buttrum contends that she was never given proper
Miranda warnings prior to her competency examinations and that the
reports of these examinations were used by Adams in his testimony
at the sentencing trial. The respondent contends that because the
defense requested the competency evaluation, she consented to use
of the reports and waived her Fifth and Sixth Amendment rights.
Respondent is incorrect on this point. The
court in Battie v. Estelle, 655 F.2d 692 (5th Cir.
Sept. 1981), held that a request for competency and sanity
evaluations do not permit the examining psychiatrist to testify on
the issue of future dangerousness upon which the defendant never
consented to being examined. See id. at 702. In open court, prior
to being examined, Janice Buttrum explicitly stated that she
waived her privilege only as to examinations of competency and
sanity, not as to other issues. Respondent's Exhibit 14 at 34-35.
Thus, the evaluating psychiatrist could not use results of those
evaluations to testify on her future dangerousness.
The issue in this case is slightly more
complicated because Dr. Adams and not the examining psychologists
used the reports as a basis for his opinion. Adams testified that
his opinion was based upon FBI reports, Ms. Buttrum's confessions,
reports from Central State Hospital, the autopsy report and some
photographs of the victim. Of the reports from Central State, he
reviewed Ms. Buttrum's social history, the psychiatric reports,
the psychological evaluations, and the ward notes. Respondent's
Exhibit 4 at 1817-18.
It is clear from Smith and Battie that the
original doctors could not have testified on future dangerousness
from their evaluation of Buttrum. While no binding precedent
directly on point has been located or cited to the Court, the
Court has no difficulty in holding that, just as the examining
doctors could not use the evaluations to give an opinion on future
dangerousness, a different doctor could not take those same
reports and use them for the same purpose. Buttrum's Fifth and
Sixth Amendment rights as a result were violated by the admission
of Adams's testimony, and a new sentencing hearing on this ground
E. The Exclusion of Mitigating Evidence.
Buttrum next contends that the trial court's
exclusion of certain mitigating testimony violated her Eighth
Amendment right to a fair sentencing hearing. The mitigating
testimony would have been that of a social worker, Jesse Collette,
about Danny Buttrum's violent history. Buttrum sought to introduce
Collette's testimony to counter the State's portrayal of Janice
Buttrum as the primary actor in the murder. Collette treated Danny
Buttrum in 1977 in a crisis intervention session and determined
that he required inpatient psychiatric care because he was
The proposed testimony was that Danny Buttrum
had complained that he was preoccupied with sex and at times felt
uncontrollable urges to rape; that he had a drinking problem and
nightmares that someone was trying to kill him; that he had
homicidal feelings toward his mother, and had attacked her with a
butcher knife and scissors.
On hearsay grounds, the prosecution objected to
Collette revealing any statements of Danny Buttrum about his prior
history. While the objection was based on the hearsay rule, the
court sustained it on relevancy grounds. Finding the testimony related to Danny Buttrum and not
to Janice, the court ruled it no more relevant than the
personal history of any other person on
Buttrum contends the testimony was relevant and
its exclusion unconstitutional because it left her without
evidence to counter the prosecutor's argument that "there's been
no evidence that he'd ever done anything like this until he got
with her." The respondent counters that the testimony was not
relevant because it concerned Danny Buttrum not Janice Buttrum, it
was cumulative, and its exclusion was harmless since evidence from
other witnesses on Danny Buttrum's violent history had been
In Lockett v. Ohio, 438 U.S. 586,
604, 57 L. Ed. 2d 973,
98 S. Ct. 2954 (1978), the Court held
that the sentencer may "not be precluded from considering, as
mitigating factor, any aspect of a defendant's character or record
and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death." Id. at 604
(first emphasis by Lockett Court, second by this Court). Moreover,
"family background and personal history" have long been treated as
mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104,
117, 71 L. Ed. 2d 1,
102 S. Ct. 869 (1982) (O'Connor, J.,
Different degrees of culpability among
co-defendants are relevant to the individualized sentencing
mandated by the Eighth Amendment. See Enmund v. Florida, 458
U.S. 782, 73 L. Ed. 2d 1140,
102 S. Ct. 3368 (1982). In Thompson
v. Wainwright, 787 F.2d 1447 (11th Cir. 1986), cert.
denied, 481 U.S. 1042, 95 L. Ed. 2d 825, 107 S. Ct. 1986
(1987), the court held counsel's failure to investigate a
codefendant's more violent background fell outside the range of
reasonably effective assistance. "In a capital case, where a
defendant's life may well depend on the extent and nature of his
participation, the background of a codefendant could be crucial."
Id. at 1450. While the court in Thompson found the error not
prejudicial, in the instant case, the question of who was the
primary actor was central to the defense theory of the case.
At sentencing Janice Buttrum's defense was
twofold. She asserted that her age, lack of prior record,
horrendous upbringing, and personal history placed her outside the
group of offenders for whom the Georgia death penalty is intended.
Second, she argued that Danny Buttrum played the dominant role in
the murder, rendering her culpability less than that warranting
death. The state portrayed Janice Buttrum as the primary
The trial court's exclusion of Collette's
testimony as irrelevant was erroneous. The testimony clearly was
relevant. It was relevant as family background information; it
concerned her husband. During the two years prior to the crime,
her life was intrinsically linked to his. It also was relevant to
the defense that Danny Buttrum was the initiator and that Janice
acted under his domination and influence. Danny Buttrum was eleven
years her senior, divorced, and beat his teenage wife fifteen to
twenty times during their two-year marriage. Collette's testimony
about his hostility toward women and his violent, abusive
personality were highly relevant to show that she was abused by
him and that this abuse could have led her to be submissive toward
him and his desires. His urges to rape and his attack on his
mother directly countered the prosecution's statements that he
"never did anything like this before he got with her." This
evidence would have helped prove the defendant's theory of the
The respondent contends that any error was
harmless because the jury had already heard about Danny Buttrum's
prior convictions and violent nature and that Collette's testimony
would have been merely cumulative. No other evidence, however,
revealed Danny Buttrum's prior urges to rape women, his belief
that someone was trying to kill him, and his violent attack on his
mother. This evidence was unique; it strongly showed, like no
other, that Danny Buttrum could have been the dominant actor in
this crime. Where the exclusion of evidence in mitigation "may
have affected the jury's decision to impose the death sentence,"
the exclusion is "sufficiently prejudicial" to require a new
sentencing hearing. Skipper v. South
Carolina, 476 U.S. 1, 8, 90 L. Ed. 2d 1,
106 S. Ct. 1669 (1986).
F. Prosecutorial Misconduct.
1. The Caldwell Argument.
Janice Buttrum contends that several remarks of
the prosecutor during closing argument violated her constitutional
rights. She contends the prosecutor violated Caldwell v.
Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231,
105 S. Ct. 2633 (1985), by suggesting
that the responsibility for the sentencing decision lay elsewhere
than with the jury. She contends the prosecutor violated this rule
in two ways. First, the prosecutor minimized the jurors'
responsibility by telling them that the sole responsibility for
the death sentence lay on Janice Buttrum who "signed her own death
warrant." He then told them that they were not individuals, but a
group that was "merely a cog in the criminal process." To this, defense counsel objected and moved for a
mistrial. The court overruled the objection and denied the motion
without explanation. The prosecutor also quoted from the Bible:
"He is the servant of God to execute his wrath on the wrongdoer."
Buttrum contends that these statements by the prosecutor denied
her constitutional rights.
The respondent cites to the well-established
rule that for prosecutorial comments to warrant relief, they must
have "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Darden v.
Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144,
106 S. Ct. 2464 (1986); see also
Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431,
94 S. Ct. 1868 (1974). The respondent points out that just prior
to the challenged statements the prosecutor clearly set out the
law of Georgia as to imposition of the death penalty, which made
clear that the jury had the responsibility to determine whether
Janice Buttrum should be put to death.
In Caldwell, the Supreme Court held a death
sentence invalid because "it is unconstitutionally impermissible
to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests
elsewhere." Caldwell, 472 U.S. at 328-29. There the jury had been
told that their decision was automatically reviewable," thus
shifting the sense of responsibility from the jury to the
appellate courts. When objection was made to this comment, the
court affirmed the propriety of the comment.
In Tucker v. Kemp, 802 F.2d 1293 (11th
Cir. 1986) (en banc), cert. denied, 480 U.S. 911, 94 L. Ed.
2d 529, 107 S. Ct. 1359 (1987), the court reiterated that
the proper standard for evaluating prosecutorial misconduct is
"whether the proceeding at issue was rendered fundamentally unfair
by the improper argument." Id. at 1295 (citation omitted). In
making this fundamental fairness determination, the court borrowed
the prejudice standard from Strickland v. Washington, 466 U.S.
668, 693-94, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984): whether there
exists "'a reasonable probability that, in the absence of the
offending remarks, the sentencing outcome would have been
different.'" Tucker, 802 F.2d at 1295 (citation omitted). The
court explained that in that case, the
fundamental fairness standard was the proper one, not the Eighth
Amendment's "heightened requirement of reliability in a capital
case." The latter was employed in Caldwell because there the trial
judge approved of the prosecutor's comments, while in Tucker no
such approval was voiced. Id.
The standard to be applied in the instant case,
therefore, depends upon whether it falls under Caldwell or Tucker.
This Circuit distinguishes between cases where the trial court
explicitly approves of the prosecutor's improper comments and
where the court merely fails to correct those comments. In this
case, the defense objected to the comments. The court overruled
the objection and denied the motion for a mistrial. The court did
not state its approval of the comments, but its overruling the
objection amounts to the same thing. When the trial court
indicates approval of the prosecutor's comments, "it [is] as if
the jury received an erroneous instruction from the court."
Tucker, 802 F.2d at 1295.
The Eighth Amendment's heightened requirement
of reliability in a capital case is therefore the standard for
this case. The Caldwell standard is that relief must be granted
unless the Court can say that the prosecutor's attempt to minimize
the jury's sense of responsibility for determining the
appropriateness of death, "had no effect on the sentencing
decision." Caldwell, 472 U.S. at 341.
In this case, while it is true that defense
counsel and the trial court later informed the jury that they were
the ones to determine whether Janice Buttrum received the death
penalty, the prosecutor's forceful argument that the ultimate
responsibility lay with Janice Buttrum herself, and that they were
merely " a cog in the criminal justice system" may have affected
the sentencing decision. Further, the comment that they were
merely a cog in a larger system is more egregious than the "last
link" arguments held not prejudicial under the fundamental
fairness standard applied in Tucker. The Tucker court noted that
an argument that the jury was the last link in the system cuts
both ways. It could as easily be interpreted as indicating the
importance of the jury's role as the ultimate arbiter. Here, the
"mere cog in the wheel" argument cuts only one way. Accordingly,
under the standard of prejudice announced in Caldwell, this issue
warrants grant of the writ.
2. The Eberhart Error.
Next, Janice Buttrum contends that the
prosecutor improperly told the jury that mercy and sympathy had no
legitimate role in its deliberations. The prosecutor stated:
You took an oath at the beginning of the
case. You said, "I do," to "You shall well and truly try the
issue formed upon this bill of Indictment between the State of
Georgia and . . . Janice Buttrum, who is charged with Murder and
Theft By Taking, and a true verdict give in accordance to the
evidence;" not according to mercy, not according to sympathy,
not according to feeling sorry for a Defendant. If you want to
feel sorry for somebody, feel sorry for those people.
[Indicating.] Mercy? I submit to you that we should have no
sympathy with the sentiment that springs into action whenever a
criminal is about to suffer for a crime. Society demands that
the crime be punished and criminals warned. The false humanity
that starts and shutters [sic] when the ax of justice is about
to fall is a dangerous element for the peace of society. We have
had too much of this mercy. It is not true mercy. It looks only
at the criminal.
Tr. at 2168-69.
This statement was modeled on the 19th Century
Eberhart quotation, see Eberhart v. State,
47 Ga. 598, 609-10 (1873), which has
been condemned by both the Eleventh Circuit and the Georgia
Supreme Court. See Drake v. Kemp, 762 F.2d 1449, 1459
(11th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020, 92
L. Ed. 2d 738, 106 S. Ct. 3333 (1986); Wilson v. Kemp,
777 F.2d 621 (11th Cir. 1985), cert. denied, 476 U.S. 1153,
90 L. Ed. 2d 703, 106 S. Ct. 2258 (1986); Potts v. Zant,
734 F.2d 526, 535-36 (11th Cir. 1984), cert. denied, 475
U.S. 1068, 89 L. Ed. 2d 610, 106 S. Ct. 1386 (1986).
The Court in Potts and
Drake held use of the quotation in closing to be unconstitutional
both because of the content of the quote and because it was
attributed to a Justice of the Georgia Supreme Court. In Wilson,
however, the court found the quotation improper even though it was
attributed not to the Georgia Supreme Court but to a "noted legal
scholar in the 1800's [of whom] I think the Court is well aware."
The Wilson court held the quotation improper because "it is not a
correct representation of the law that controls capital
sentencing." Wilson, 777 F.2d at 624. Thus the rule as applied in
Wilson is based on "the content of the Eberhart language and does
not depend on the source to which the passage was attributed." Id.
(emphasis added). The language is improper because its import is
a sense of mercy should not dissuade one from
punishing criminals to the maximum extent possible. This
position on mercy is diametrically opposed to the Georgia death
penalty statute, which directs that "the jury shall retire to
determine whether any mitigating or aggravating circumstances .
. . exist and whether to recommend mercy for the defendant."
O.C.G.A. ? 17-10-2(c).
Wilson, 777 F.2d at 624. While the prosecutor
may argue that mercy is not warranted by the facts of a certain
case and the history of a particular defendant, Wilson, 777 F.2d
at 626, "when the prosecutor argues that it is mercy itself that
is inappropriate, the jury is improperly told that the concept of
mercy - the most significant factor which might point toward a
choice of life imprisonment - is illegitimate." Id.
Similarly, in Drake, the court had found "the
content of the Eberhart quote" to be "fundamentally opposed to
current death penalty jurisprudence." Drake, 762 F.2d at 1460,
quoted in id. at 626 (emphasis added). The passage was found not
only erroneous but prejudicial because "in misstating the law on
this critical sentencing consideration, the passage . . . could
likely have had a substantial effect on the jury's decision." Id.
at 626. "By undermining mercy as a valid sentencing consideration,
arguments such as those represented by the Eberhart quote strike
at the most important component of a capital jury's discretion
favoring capital defendants." Id. at 626 (emphasis added).
In this case, the prosecutor did not attribute
the passage to any source. The attribution given, however, was not
the essential cause of prejudice in Wilson or Drake. While the
Drake court considered significant the prosecutor's attribution,
the court stated:
however, if the Eberhart language were simply
presented by the prosecutor, unbolstered by any attribution, it
would still cause us great concern because of its tendency to
mislead the jury about the proper scope of its deliberations.
Id. at 626 (emphasis added).
The reasoning in these cases makes clear that
the comments of the prosecutor in this case were both improper and
prejudicial because of their content, even though it was made
without attribution. In addition, the quotation, prejudicial in
itself, was clothed with authority of a different kind. The
prosecutor began the passage immediately after and in the same
sentence as his recitation of the jurors' oath. This placement
colored the quotation with the aura of duty of the oath itself.
Its placement suggested that it was not merely rhetoric but a
pronouncement of duty. The use of this quotation in Buttrum's
sentencing hearing was both improper and prejudicial and mandates
grant of the writ for a new sentencing hearing.
3. The Booth Error.
The petitioner next contends that the
prosecutor improperly urged the jury to impose a sentence of death
after comparing Janice Buttrum with the victim, Demetra Parker.
Look at Demetra; look at the Defendant. She,
summarily, slowly, surely murdered and participated in the rape
of Demetra Faye Parker without any due process of law. Demetra
Faye Parker had no lawyers; Demetra Faye Parker had no public
hearing; Demetra Faye Parker had no
right to counsel; Demetra Faye Parker had no verdict based upon
Tr. at 2167.
The Supreme Court has "reject[ed] the
contention that the presence or absence of emotional distress of
the victim's family, or the victim's personal characteristics are
proper sentencing considerations in a capital case." Booth v.
Maryland, 482 U.S. 496, 507, 96 L. Ed. 2d 440,
107 S. Ct. 2529 (1986) (footnote
omitted). The references to the personal characteristics of Ms.
Parker in this case, however, were sufficiently brief that one
"cannot conclude that they injected prejudicial or irrelevant
material into the sentencing decision." See Brooks v. Kemp, 762
F.2d 1383, 1409 (11th Cir. 1985) (en Banc), cert. denied,
478 U.S. 1022, 92 L. Ed. 2d 742, 106 S. Ct. 3337
The other challenges to the prosecutor's
closing arguments have been carefully examined and found to be
G. The Charge on Aggravating Circumstances.
Petitioner Buttrum contends that the trial
court improperly instructed the jury with regard to the four
aggravating circumstances asserted by the prosecution in favor of
the death penalty. The jury recommended imposition of the death
penalty after finding the existence of all four of the asserted
Buttrum first contends the court improperly
charged the jury on the aggravating circumstance of O.C.G.A. ?
17-10-30(b) (2). The Court charged the jury as follows:
The first is: that the offense of murder was
committed while the Defendant was engaged in the commission of
another felony, to-wit: Rape. Georgia Law defines Rape as
follows: 'a person commits rape when he has carnal knowledge of
a female forcibly and against her will. Carnal knowledge in Rape
occurs when there is any penetration of the female sex organ by
a male sex organ.
Transcript at 2206-07. Buttrum contends that
this charge was improper because it deflected attention away from
the petitioner's personal culpability and toward that of Danny
Buttrum. The jury was thus permitted to recommend imposition of
the death penalty, she maintains, upon vicarious liability
theories of conspiracy and aiding and abetting. She contends the
court improperly expanded the scope of the (b) (2) circumstance
when she did not and could not have raped Demetra Parker.
This contention is without merit. Petitioner
has cited no case in support of her argument, and none has been
found by the Court. The one case cited by the petitioner, Pickens
v. Lockhart, 714 F.2d 1455, 1463-64 (8th Cir. 1983),
examined an instruction given at the guilt phase of a trial, and
is not relevant to this issue. While it is true that Janice
Buttrum could not personally rape Demetra Parker, she could be
convicted of rape as an aider and abettor. See O.C.G.A. ? 16-2-20
(a) & (b)(3) (person who intentionally aids or abets in the
commission of a crime may be charge with and convicted of
commission of the crime). Thus the jury could properly find that
she committed murder during the commission of the rape. The jury
was in no way precluded from focussing solely on her conduct.
While it knew she personally could not commit rape, it was
instructed that she nevertheless could be guilty of rape as an
aider and abetter. The jury was properly instructed that it could
find the (b) (2) circumstance with the underlying predicate crime
of aiding and abetting rape. This issue is without merit.
Janice Buttrum next contends that the (b) (7)
aggravating factor was improperly explained to the jury. The (b)
(7) circumstance provides that a death sentence may be recommended
where the murder "was outrageously or wantonly vile, horrible or
inhuman in that it involved [a] torture, [b] depravity of mind or
[c] an aggravated battery to the victim." O.C.G.A. ? 17-10-30(b)
(7). Each of these three bases was presented to the jury.
Buttrum contends that
the trial court failed to guide the jury as to what would support
a finding of torture. This contention is meritless. The only
element of the (b) (7) circumstance that must be defined so as to
adequately guide the jury in its deliberations is that of
"aggravated battery." See Morgan v. Zant,
582 F. Supp. 1026, 1035 (S.D.Georgia
1984), aff'd in relevant part, rev'd on other grounds, 743
F.2d 775, 781 (11th Cir. 1984). The instruction on torture was
adequate, and sufficient evidence clearly existed for the jury to
find torture in this case.
Buttrum also contends that while the trial
court properly charged the jury on the "aggravated battery"
circumstance, the circumstance does not apply because no member of
the victim's body was rendered useless prior to death. This
contention is also meritless. The proper definition, as given by
the court, is in the disjunctive. One basis for the finding is
that the murder was committed by "seriously disfiguring the body
or member thereof." A glance at the photographs of the victim in
this case reveals the existence of this factor and the
meritlessness of this ground for relief.
Buttrum correctly contends, however, that the
court improperly defined the term "depravity of mind." The trial
court used a definition from Black's Law Dictionary which was
different from the definition approved by the Georgia Supreme
Court in West v. State,
252 Ga. 156,
313 S.E.2d 67 (Ga. 1984). There the
court presented an example of a proper instruction of "depravity
of mind as a reflection of an utterly corrupt, perverted or
immoral state of mind." Id. at 161. The court there held that
while no instruction on depravity of mind is required, if the
court undertakes to give such instruction, "it should do so
correctly." Id. at 159. Here, the instruction broadened the scope
of the aggravating circumstance. The jury was instructed it could
find the (b) (7) circumstance merely on a finding of "deficiency
in moral sense and rectitude" rather than a finding of "utterly
corrupt, perverted or immoral." The instruction more broadly
defined depravity of mind and required a much lower threshold than
the proper definition. The instruction therefore was improper.
The improper instruction, nevertheless, does
not require reversal. The instructions on the other aggravating
circumstances were proper, and petitioner has not shown that the
evidence was insufficient to find those circumstances. Because of
the existence of other valid and legally appropriate circumstances
to support the death penalty, relief is not warranted where one
basis is found invalid. See Zant v. Stephens, 462 U.S. 862,
77 L. Ed. 2d 235,
103 S. Ct. 2733 (1983).
H. The Charge on Mitigating Evidence.
Buttrum contends that the court carefully
explained each of the aggravating circumstances claimed by the
state; but on mitigating circumstances, the court, near the end of
the charge, in a perfunctory manner, gave a brief and "wholly
unilluminating" charge on mitigating circumstances. She contends that the charge
whole emphasized the importance of aggravating circumstances and
minimized the importance of mitigating circumstances.
The standard to be applied upon a challenge to
the adequacy of an instruction on mitigating circumstances is
whether any reasonable juror could have failed to understand the
challenged instructions and the role of mitigation. High v. Kemp,
819 F.2d 988, 991 (11th Cir. 1987), cert. denied,
487 U.S. 1233, 108 S. Ct. 2896, 101 L. Ed. 2d 930
(1988); citing, inter alia, Peek v. Kemp, 784 F.2d 1479
(11th Cir. 1986) (en banc), cert. denied, 479 U.S. 939, 93
L. Ed. 2d 371, 107 S. Ct. 421 (1986). "The ultimate
question is whether there is a reasonable possibility that the
jury understood the instructions in an unconstitutional manner."
Peeks, 784 F.2d at 1479.
In Spivey v. Zant, 661 F.2d 464 (5th
Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 73 L. Ed.
2d 1374, 102 S. Ct. 3495 (1982), the court held that
failure to mention and define mitigating circumstances in a
capital case violates the constitution. The court noted that the
jury must be explicitly instructed about mitigating circumstances
and established the following standard:
So long as the instruction clearly
communicates that the law recognized the existence of
circumstances which do not justify or excuse the offense, but
which, in fairness or mercy, may be considered as extenuating or
reducing the degree of moral culpability and punishment . . .,
this portion of the constitutional requirement is satisfied.
Id. at 471 n. 8. In Peek, the court the court
approved of a sentencing instruction that had been given in Tucker
v. Zant, 724 F.2d 882, 891 (11th Cir.), vacated on other
grounds, 724 F.2d 898 (11th Cir. 1984), reinstated in
relevant part sub nom. Tucker v. Kemp, 762 F.2d 1480, 1482
(11th Cir 1985) (en banc), vacated on other grounds, 474 U.S.
1001, 88 L. Ed. 2d 452, 106 S. Ct. 517 (1985),
reinstated, 802 F.2d 1293 (11th Cir. 1986), cert. denied,
481 U.S. 1073, 96 L. Ed. 2d 364, 107 S. Ct. 2472
(1987). The Peek court held that the instruction given in Tucker
was "manifestly desirable." Id. at 1490 n. 12. The court
paraphrased the instruction as follows: "[A] mitigating
circumstance is a factor which, while not constituting a legal
excuse or justification for the offense, could be considered in
fairness and mercy as extenuating or reducing the degree of moral
culpability or blameworthiness." Id. This paraphrase of the Tucker
instruction, approved by the court, is nearly identical to the
instruction given in Buttrum's case. Buttrum's contention that the
instruction in her case was inadequate is meritless.
Buttrum also contends that an instruction
similar to one proposed by the defense should have been given. This instruction outlined a number of specific
mitigating circumstances about which the defense had
Petitioner's argument however, is foreclosed by Tucker :
Nothing in any of our cases suggests that
such explicit enumeration of possible mitigating factors is
required. On the contrary, Spivey's indication that a judge must
'tell the jury what a mitigating circumstance is and what its
function is' . . . contemplates a more general explanation. . .
. Defendant's counsel is . . . free to direct the jury's
attention to specific mitigating circumstances, but the
Constitution does not oblige the trial court to do so.
Tucker, 724 F.2d at 892.
Also noteworthy in this case is that the trial
court allowed extensive mitigating evidence to be presented,
including the details of Janice Buttrum's tragic upbringing. A
reasonable juror would have understood that, in light of the
evidence and the court's instructions, this extensive evidence
about Janice Buttrum was presented in mitigation of punishment.
Thus, taking the instruction as a whole in the context of the
entire trial, no reasonable juror could have failed to understand
the challenged instructions and the role of mitigation. This issue
does not warrant the grant of habeas relief.
ACCORDINGLY, Petitioner Buttrum's petition for
Writ of Habeas Corpus is GRANTED in part and DENIED in part. The
writ of Habeas Corpus is DENIED as to her conviction of murder and
it is GRANTED as to the sentence of death. Respondent Black is
ORDERED to grant the petitioner a new sentencing hearing to
commence within six months from the date of this order, or if an
appeal is taken from this order, within six months of the date
this order becomes final.
IT IS SO ORDERED, this the 20th day of
Dematra Faye Parker, 19.